LEGAL ISSUES

This paper will give advice on the following issues raised:

 First, the position of intention and motive in the law of torts
 Second, whether there is any action that can be brought by the injured party (Bwembya)
 What defences are available for the defendant (Bwalya)

THE POSITION OF INTENTION AND MOTIVE IN THE LAW OF TORTS

When attempting to determine how far the mental element is an essential element for
determining tortuous liability three aspects of the human mind are examined namely motive,
malice and intention.

Motive, is the state of mind which inspires a man to do an act. In other words the purpose for
which an act is done.1 Motive is not an essential element in tort. If an act is lawful then it will not
become illegal because it has been done with bad motive. Similarly if an act is illegal then it will
not become lawful merely because it has been done with good motive. It is the act and not the
motive for the act which is regarded as essential.2

Intention, according to Salmond3 Intention means the object for which the act is done. Motive
and intention are sometimes used interchangeably however they are different. Motive is the
ulterior object for which an act is done. Whereas intention is the immediate and apparent object
for which the act is done.4 For example a thief’s immediate object may be to steal another’s
money but his ulterior object may be to buy food for himself. 5 Intention generally, is irrelevant
in the law of torts. If a person injures another he will be liable even though his intention might
not be to cause injury to that other person. In the law of torts liability is determined on the
ground that every person knows the natural consequence of his act. In Wilkinson v Downton6
the defendant in a joke told the plaintiff that her husband had broken his legs in an accident and
was admitted in hospital. This shocked her and she got seriously ill. She sued the defendant for
1
Pandley,J.N. and Pandley,V.K.(2000) Law of Torts Darbhannga Colony, Allahabad:Central law Publications p20
2
Pandley,J.N. and Pandley,V.K.(2000) Law of Torts Darbhannga Colony, Allahabad:Central law Publicationsp20
3
Salmond and Heuston law of torts(1992)20th edp20
4
Ibid
5
Pandley,J.N. and Pandley,V.K.(2000) Law of Torts Darbhannga Colony, Allahabad:Central law Publications p21
6
(1892) 2 QB 57
damages. The defendant contended that he never intended to cause any harm to the plaintiff as he
said this as a practical joke. But the court held that intention is not an essential element in tort.
Te defendant knew the natural and probable consequences of his act which caused the defendant
damage and therefore he was liable whether he intended it or not.

Malice, the word malice in ordinary parlance means spite or ill will. But in law the word has two
different meanings; intentional doing off a wrongful act and an act done with improper motive. 7
For example if one person prosecuted somebody only with a view to extort money out of him he
is liable for malicious prosecution. Malice in the law of Torts is irrelevant because the law does
not ask why an act was done. A good motive will not justify an illegal act. On the other hand a
bad motive will not will not make a an illegal act legal. The leading case on this point is the case
of Bradford Corporation v Pickles8 in this case the plaintiff corporation had statutory power to
supply water to the local community from certain springs. Water reached the springs by
percolation through the neighbouring land belonging to Pickles. In order to induce the
corporation to buy the land at a high price Pickles sank a shaft on it with the result that the water
reaching the corporation reservoir was discoloured and its flow diminished. The corporation
asked for an injunction to refrain Pickles from collecting the subterranean water. Held an
injunction could not be granted because Pickles was making a lawful use of his land . Lord
McNaghten said
“In such cases motives are immaterial it is the act not the motive for the act that must be
regarded. If the act apart from the motive gives rise to merely to damage without legal
injury, the motive however reprehensive it may be will not supply that element."

7
Salmond and heuston law of torts(1992)20th ed p20
8
(1895) AC 587 The mere fact that someone has suffered damage does not entitle him to maintain an action in tort.
Before an action can succeed the harm suffered must be caused by an act which is a violation of a right which the
law vests in the claimant or injured party. The real meaning of damage in the law of torts is illustrated by two
maxims.Damnun sine injuria; this means damage without violation of a legal right. Harm caused without violation
of a legal right however great is not actionable in the law of torts. Damage is not the basis of an action unless such
damage is the result of a violation of a legal right of the plaintiff. In Glouchester Grammer School (1410) YB Hill
H Hen 4 of 47 p 21 it was held that every person has the right to carry on a business in competition with others even
thought the competition causes loss to his rival. Injuria sine damno: on the other hand means violation of a legal
right without damage to the plaintiff. This kind of damage is actionable per se that is to say without proof of harm
whether financial of physical. For instance in Ashby v White (1763) 2Ld Raym 939 the plaintiff was wrongfully
prevented from voting in an election by the defendant returning officer. In spite of this the plaintiff’s candidate won.
The defendants contended that no harm had been done to the plaintiff because his candidate had won nonetheless.
Held that the returning officer had violated the plaintiff’s legal right regardless of the outcome therefore the plaintiff
was entitled to damages.
There are exceptions to the general rule for torts such as malicious prosecution because the
plaintiff has to prove that the defendant started the prosecution proceedings against him with
malice and not for any lawful purpose. In defamation the defences of qualified privilege and fair
comment are only allowed where the defendant has not been malicious. 9 Finally in regard to the
tort of nuisance, certain acts which would not necessarily be a nuisance may be regarded as such
if they are exercised unreasonably such as in Christie v Davey10 where the defendant was
shouting and banging pans on the adjoining wall in protest against music lessons carried on by
the neighbour.

POSSIBLE ACTIONS
Negligence; The tort of negligence is the widest and most common of all torts. It covers a wide
range of acts and omissions. The tort of negligence is based on three basic elements which all
need to be proved for a complainant to succeed in his action. Firstly, that the defendant was
under a duty of care to the plaintiff. Secondly, that that duty was breached, and third that as a
result the plaintiff has suffered damage.11 When does such a duty arise? The existence of this
duty is illustrated and well defined in the landmark case of Donoghue v Stevenson12 by Lord
Atkin when he pronounced the neighbour principle as follows:
“You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who then is my neighbour? The answer
seems to be persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when am directing my
mind to the acts or omissions which are called in question”
Obvious examples of relationships where a duty of care exists are an employer towards his
employees; or a doctor towards his patients. This duty of care also exists in sport for example, In
Condon v Basi13 the defendant a non professional football player made a late and reckless slide
tackle upon the claimant resulting in the claimant sustaining a broken right leg and the defendant
being sent from the field of play. The court of appeal held that:
“Participants in competitive sport owe a duty of care to each other to take all reasonable
care having regard to the particular circumstances in which the participants are placed.
9
Kennan,D. (2005) Smith and Keenans English law. (15th ed) London: Longman Pearson p493
10
(1893) 1 Ch 316
11
Keenan, D.(2007) Smith and Keenan’s English law. (15th ed) London: Pearson Longman. p562
12
(1932) AC 562
13
(1985) 2 All ER 453
 If one participant injures another he will be liable in negligence for damages at the suit
of the injured participant if it is shown that he failed to exercise the degree of care
appropriate in all the circumstances or that he acted in a manner to which the injured
participant cannot be expected to have consented.”
Therefore the defendant was liable as there was evidence of serious and dangerous foul play
which showed a reckless disregard of the plaintiff’s safety and which fell far below the standards
which might reasonably be expected in anyone pursuing the game. The extension this rule to
sport law is clearly a reflection of the need of to respond to the increasing amount of unnecessary
violence in certain sports like football an rugby.

The High Court of Australia in Rootes v Shelton14 to quote briefly from the judgments of
Barwick CJ and from the judgment of Kitto J. Barwick CJ said:
‘By engaging in a sport or pastime the participants may be held to have accepted risks
which are inherent in that sport or pastime: the tribunal of fact can make its own
assessment of what the accepted risks are: but this does not eliminate all duty of care of
the one participant to the other. Whether or not such a duty arises, and, if it does, its
extent must necessarily depend in each case upon its own circumstances…’
Kitto J said (at 37):
‘…Unless the activity partakes of the nature of a war or of something else in which all is
notoriously fair, the conclusion to be reached must necessarily depend, according to the
concepts of the common law, upon the reasonableness, in relation to the special
circumstances, of the conduct which caused the plaintiff’s injury. That does not
necessarily mean the compliance of that conduct with the rules, conventions or customs
satisfies the standard of care required… Non-compliance with such rules, conventions or
customs … is necessarily one consideration to be attended to upon the question of
reasonableness; but it is only one, and it may be of much or little or even no weight in the
circumstances.’

The standard of care is that of an ordinary prudent man, in other words that care which a
reasonable man would use or show in the circumstances of the particular case under
consideration. For example where a workshop got flooded it was held that the use of saw dust to
cover the floor was a reasonable preventative measure to absolve the defendant from liability.
In effect, there is a general standard of care, namely the Lord Atkin approach that you are under
a duty to take all reasonable care but in a game of football, the standard of care is quite different

14
[1968] ALR 33 at 34
from that which affects you when you are going for a walk in the countryside. The standard is
nevertheless objective, but objective in a different set of circumstances. 15

Assault and Battery, generally every battery includes an assault therefore we shall look at both.
An assault is an attempt t or threat to apply unlawful force to the person of another whereby that
other person is put in fear of violence.16 Thus the main test in assault is to create a reasonable
apprehension in the minds of the plaintiff that the defendant is about to use force against him,
whether it caused harm or not.17 Elements of Assault; in an action for assault the plaintiff has to
prove the following things
 Intention to use force
 Capacity to use force
Intention is proved by showing that the defendant made some gesture in preparation for an attack
which induced fear in the plaintiff. Capacity to use force means that the plaintiff must on
reasonable grounds believe that the defendant had the capacity to apply the force. For instance
where the threat is made by a person in prison it would be unreasonable to say such a person had
capacity. In Steven v Myers18 the defendant was held back by other members next to the person
he intended to attack. It was held that the defendant was liable because he advanced with the
intention to strike the chairmen and if he had not been stopped by others he would have been
successful in fulfilling his intention. In Tubervile v Savage19 the element of capacity could not
be satisfied because the defendant had negative his intention and thereby capacity by stating that
he would have attacked him had it not been assize time.

Battery is the actual and intentional application of force on the person of another without any
lawful justification. Thus to throw water on a person or to apply tone rinse on the scalp of a
customer which had not been ordered and caused a skin rash is enough to constitute a battery as
was held in Nash v Sheen.20 The elements of Battery are:
 use or application of force
15
Condon v Basi [1985] 2 All ER 456 see p 454 g h and p 455
16
Pandley p153
17
Ibid p153
18
(1930) 4 C&P 349
19
(1609) 1 Mod 3
20
(1953) The Times , 13 March
  intention to apply force
 without lawful justification
The use of force constitutes a positive action such as slapping or pushing without lawful
justification. There must be contact with the plaintiff and the amount of force is immaterial and it
must be immediate. The use of force must be intentional; therefore unintentional touching which
is an outcome of a mere accident does not amount to battery. Thus in Stanley v Powell21 one
person of a shooting party fired a gun at a fowl. The shot rebounded against a tree and wounded
the plaintiff. It was held that it was a battery. The mere jostling that occurs in a crowd does not
amount to a battery because there is presumed consent and in any case there is normally no
hostility which is also a requirement. Thus in Wilson v Pringle22 one school boy had
intentionally pulled a school bag from another boys shoulder. However, this was held to be some
form of horse play and in the absence of a hostile intention there was no battery. In Home office
v Wainwright23 the Court of Appeal made it clear that an intention to do harm or recklessness
must be present. Therefore it was wrong to award aggravated damages to a mother and son who
were strip searched without their consent while on a prison visit because the officers did not
intend harm nor where they reckless.

DEFENCES
The following are the defences that can be raised against the tort alleged to have been
committed. Volenti non fit injuria; this means that no injury can be done to a willing person who
has voluntarily consented to the commission of the tort thus he may not sue on it. Obvious
examples occur in sport. Participants in sport voluntarily undertake to run the lawful risks and
hazards inherent in the game.24 Especially in a competitive sport whose rules and general
background contemplate that there will be physical contact between the players. The consent
may either be implied from the circumstances of the game or expressed in writing or orally. 25 In
Sims v Leigh Rugby Football Club26 the claimant was a member of a visiting team playing
rugby football on the defendants club ground when his leg was broken as he was tackled and
21
(1891) 1 QB 86
22
(1986) 2 All ER 435
23
(2002) QB 1334
24
English Law p511
25
Ibid
26
(1969) 2 All ER 923
thrown towards a concrete wall. It was held that the claimant must be taken to have willingly
accepted the risks involved in playing on that field.

Whilst, in Watson v Gray,27 the claimant a professional footballer suffered an injury in terms of
a double fracture to his right lower leg following a high tackle on him after the ball had moved
on. The defence of volenti did not apply and the claimant succeeded in a damages claim. Again
in Smolden v Whitworth,28 the defence of volenti non fit injuria did not apply where S was
seriously injured in an under 19 Colts rugby match in the course of which his neck was broken
after a scrum collapsed. The referee was held as having a duty of care. His conduct had fallen
below an acceptable standard in terms of observing rules designed to prevent scrum collapse.

Inevitable accident is another possible defence; this defence applies where the accident could not
have been avoided by precautions a reasonable man could have been expected to take. For
instance in Stanley v Powell29 P a member of a shooting party fired a shotgun and a pallet hit a
tree and ricocheted into the eye of the plaintiff. Held that P was not liable to S for trespass and S
had failed to establish that P had been negligent; the defendants act was neither intentional nor
negligent. However in Pearson v Lighting,30 the court held that the defendant was liable for
damages because he was negligent; the defendant being aware of the position of the claimant and
other should have asked the party before he made the shot whether he should wait until the party
had gone. He did not do so and was liable in negligence for the injured eye.

ADVICE AND APPLICATION OF THE LAW TO THE FACTS

Generally intention and motive have no place in the law of torts with only a few exceptions as
demonstrated above. Malice or motive in the law of Torts is irrelevant because the law does not
ask why an act was done. It is the act not the motive for the act that must be regarded. Therefore
the fact that Bwalya is known to have developed a grudge against Bwembya because the two are
competing for the affection of a girl is immaterial. Intention however is an is an essential element
in cases of assault therefore if the action brought is assault intention would have to be

27
The Times, 26 November 1998
28
The Times, 18 December 1996
29
(1891) 1 QB 86
30
The Times , 30 April 1998
considered. Whereas if the action is in negligence it will be sufficient to prove that the
defendants tackle was made in a reckless and dangerous manner without thought of the
consequences.

Nonetheless, Bwalya can raise the defences of volenti non fit injuria and inevitable accident. The
fact that the referee in the match thought the tackle was too harsh, red carded Bwalya and sent
him off the pitch will be taken into account in determining whether defendant intended the injury
or whether he was reckless. On the other hand, the fact that the tackle was hard but conventional
would also need to be considered.
REFERENCES
BOOKS REFERRED TO
Keenan, D.(2007) Smith and Keenan’s English law. (15th ed) London: Pearson Longman

Pandley,J.N. and Pandley,V.K.(2000) Law of Torts Darbhannga Colony, Allahabad:Central law Publicationsp20

Salmond and Heuston law of torts(1992)20th ed London: Sweet & Maxwell

CASES REFERRED TO
Pearson v Lighting, The Times , 30 April 1998
Watson v Gray, The Times, 26 November 1998
Home office v Wainwright (2002) QB 1334
Wilson v Pringle (1986) 2 All ER
Stanley v Powell (1891) 1 QB 86
Christie v Davey (1893) 1 Ch 316
Bradford Corporation v Pickles (1895) AC 587
Wilkinson v Downton (1892) 2 QB 57
Watson v Gray, The Times, 26 November 1998
Rootes v Shelton [1968] ALR 33 considered.
Donoghue (or M‘Alister) v Stevenson [1932] AC 562, [1932] All ER Rep 1, HL.
Rootes v Shelton [1968] ALR 33.
In Condon v Basi [1985] 2 All ER 456
Smolden v Whitworth, The Times, 18 December 1996
Sims v Leigh Rugby Football Club(1969) 2 All ER 923
Steven v Myers (1930) 4 C&P 349
Tubervile v Savage (1609) 1 Mod 3
Nash v Sheen (1953) The Times , 13 March