CAVENDISH UNIVERSITY

ZAMBIA

DISTANCE LEARNING DEPT.

BACHELOR OF LAWS
(LLB)

STUDY MATERIAL

Module Name: LAW OF THE TORTS I

Introduction to the Torts

Module Code: CUZL231

Stage: Y1S1 & Y1S2

TABLE OF CONTENTS
CONTENT PAGE
1. The Nature of Tort ………………………………………………… 4
2. Damages and Liability …………………………………………….. 5
3. Malice ……………………………………………………………… 5
4. Motive ……………………………………………………………… 7
5. Economic Loss …………………………………………………….. 8
6. Negligent (Careless Statements) …………………………………… 8
7. Nervous Shock ……………………………………………………… 9
8. Breach of Duty ……………………………………………………… 12
9. Resulting Damage to the Plaintiff …………………………………… 13
10. Res Ipsa Loquitur ……………………………………………………. 13
11. Objective Standards – Professionals ………………………………… 14
12. Medical Practitioners ………………………………………………… 14
13. Advocates ……………………………………………………………. 14
14. Standard Set by Public Policy ……………………………………….. 14
15. Contributory Negligence ……………………………………………. 15
16. The Doctrine of Alternative Danger or Dilemma Principle ………… 16
17. Nuisance …………………………………………………………….. 17
18. Private Nuisance ……………………………………………………... 18
19. Damage ……………………………………………………………… 18
20. Nuisance as a Defence ……………………………………………….. 19
21. Twenty Years Prescription …………………………………………… 21
22. Conduct Permitted by Statute ……………………………………….. 21
23. Inevitable Accident ………………………………………………. 22
24. Reasonable Defence of Person Property …………………………. 22
25. Pursuance of Legal Right ………………………………………… 22
26. General Defences in Tort ………………………………………….. 23
27. Mistake ……………………………………………………………. 23
28. Necessity ………………………………………………………….. 23

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29. Statutory Authority ……………………………………………….. 24
30. Self Defence ………………………………………………………. 24
31. Trespass to Person ……………………………………………………. 26
32. Trespass to Goods ……………………………………………….. 26
33. Assault ………………………………………………………………… 27
34. Battery ………………………………………………………………… 28
35. False Imprisonment …………………………………………………… 28
36. Arrestable Offences ……………………………………………… 30
37. Torts Affecting Property …………………………………………. 30
38. Trespass to Land …………………………………………………. 30
39. Conversion ………………………………………………………. 31
40. What Constitutes Conversion ……………………………………. 31
41. Merely Reception of Goods …………………………………….. 31
42. The Involuntary Bailee …………………………………………. 32
43. Abusing Possession ………………………………………………. 33
44. Demand and Refused …………………………………………….. 33
45. Title of Plaintiff …………………………………………………. 33
46. Finding …………………………………………………………… 33
47. Kinds of Damages ………………………………………………. 35
48. Contemptuous …………………………………………………… 35
49. Nominal …………………………………………………………. 35
50. Exemplary or Punitive ………………………………………….. 35
51. Measure of Damages …………………………………………… 36
52. Self Help ……………………………………………………….. 36
53. Abatement of Nuisance …………………………………………. 36
54. Injunction ……………………………………………………….. 36
55. Types of Injunction ……………………………………………… 37
56. Quia Timet Injunction …………………………………………… 37
57. Specific restitution of Property ………………………………….. 37
58. Defamation ………………………………………………………. 38

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59. Essentials of Defamation ………………………………………… 38
60. The Words must be Defamatory …………………………………. 38
61. Innuendo …………………………………………………………. 39
62. Knowledge of the Defendant …………………………………….. 39
63. The Word must refer to the Plaintiff …………………………….. 39
64. The Words must be Maliciously Published ……………………… 40
65. Privilege …………………………………………………………… 44
66. Qualified Privilege ………………………………………………… 44
67. Law of Torts ………………………………………………………. 45
68. Defamation of Tort ……………………………………………….. 45
69. Capacity of Parties ………………………………………………… 47
70. Vicarious Liability ……………………………………………….. 47
71. Negligence ………………………………………………………... 47
72. Duty of Care ………………………………………………………. 48
73. Recognised Duties in Law ………………………………………. 48
74. Standard of Care ………………………………………………… 48
75. Negligent Misstatement ………………………………………….. 48
76. Res Ipsa/Oquitur …………………………………………………. 49
77. Contributory Negligence ………………………………………… 49
78. Doctrine of Norms Actus Interveniens ………………………….. 49
79. Breach of Statutory Duty ………………………………………… 49
80. Occupiers Liability ……………………………………………… 49
81. The Rule in Rylands v Fletcher …………………………………. 50

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THE NATURE OF TORT
A tort cannot be defined by reference to a particular act omission. It is only possible to
define it by reference to the origin of the rule and legal consequences of its breach.
Professor Winfield stated that Tortuous Liability arises from the breach of a duty
primarily fixed by law such duty is towards persons general and its breach is and not
previously agreed by the parties,
The law of Tort deals with a wide variety of wrong e.g.
a) Intentionally or negligently causing physical injury to another , ( trespass to the
person and negligence)
b) Interfering with the enjoyment of another’s land (nuisance , trespass to land and the
tort known as Rylands v Fletcher )
c) Defamation ,( Libel and Slander)
A tort must be distinguished from:
1. a breach of contract, where the obligation of which a breach is alleged a rose from
the agreement of he partners .
2. A breach of trust, where the duty broken is known only to equity and to common law
and where the remedy is equitable or discretionary and not the common law right to
damages,
3. A crime where object of proceedings is to punish the offender rather than
compensate his victim
Each individual tort has its own particular rules governing liability, but general the
plaintiff must prove the following:
1. That the defendant’s conduct has been intentional or negligent i.e. liability is usually
based on fault. There are however some instances of ‘Strict liability i.e. liability
without fault.
2. That the tortuous act or omission caused some damages to the plaintiff, however
some torts are actionable ‘per se’ (without proof of loss), e.g. trespass and libel.

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DAMAGES AND LIABILITY
The law distinguishes between two concepts- (1) DAMNUM, which means the damages
suffered and (2) injuria, which is an injury having legal consequences can sometime but
not always, the two go together. For instance, if I negligently drive a car and injure a
person, he suffer damnum (the hurt) and injuria ( because he has a right of action to be
compensated ). There are however cases of damnum sine injuria (damage suffered
without the violation of legal right) and injuria sine damno ( the violation of a legal right
without damages e.g. trespass)
The mere fact that person has suffered damage does not entitle him to maintain an action
in tort. Before an action can succeed, the harm suffered must be causes by ac act which is
a violation of a right which the law vests in the plaintiff or injured party.
Best v Samuel Fox & Co Ltd [ 1952] 2A11E, R394
Best was a workman at the defendant’s factory and because of an accident caused by the
defendant’s negligence he was emasculated and thus rendered in capable of sexual inter
course. Best claim for damages was successful but his wife also claim damages for loss
of her husband‘s consortium through the defendant’s negligence. The House of Lords
held that her claim failed because the damnum was not of a kind recognized by law.

MALICE
The fact that the defendants acts with malice, i.e. with the intention of his neigbour does
not give rise to a cause unless a legal right of the plaintiff is infringed.

Even though Malice is generally irrelevant in Tort (Bradford Corp V Pickles), it is

however relevant in determining liability in nuisance. This occurs where A uses his
property for the sole purpose of annoying B

MALICE IN TORT
Malice in its popular and narrow sense means spite and ill will. In law the term has two
district meanings which should be understood. Malice in its legal sense means:
i. The doing of a wrongful act intentionally, without just cause or excuse in other
words willful and conscious wrong doing.

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 ii. The doing of an act from some improper motive that is motive of which the law
disapproves for the act in question.
To act maliciously means, therefore, to do the act from some wrong and improper motive
or merely to do the act intentionally.
In tort, the intention or motive for an act is generally irrelevant.
Bradford corporation v pickles (1895)
P with a view to inducing BC to buy his land at a high price, sank a shaft on his land
which interfered with the water flowing in undefined channels into the corporation
reservoir. The corporation applied for an injunction to restrain P from collecting the
under ground water.
Held that an injunction would not lie, P was entitled as owner to draw from his land the
under ground water. His malice if any in trying to force the purchase of the land, was
irrelevant no use of property which would be legal if done with a proper motive can be
illegal if done with an improper motive.
A good or innocent motive will not be lawful excuse for the commission of a tort and a
bad (malice) motive will not make a lawful act unlawful.
In general the law of tort is more concerned with the effect of injurious conduct than with
the motive or intent which inspired it. It is the act not the motive for it that must be
regarded.
Wilkinson v Downton (1897)
A, as a practical joke told Mrs. B that her husband has met with an accident. Mrs. B
suffered a nervous shock and was ill as a result. Mrs. B brought an action against A for
false and malicious representation. The fact that A passed the information as a joke was
irrelevant and Mrs. B was entitled to damages.

MALICE IN THE SENSE OF IMPROPER MOTIVE

Is relevant in the following:
i. Malicious prosecution that is A prosecutes B without just cause. You can sue for
malicious prosecution.

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 ii. Malicious falsehood that is A makes allegation that a ship is unsea worthy, as a
result the crew refuses to sail, thereby causing loss if proved the allegation is
untrue. You sue for malicious falsehood.
iii. Defamation. The presence of malice will destroy the defense of qualified privilege
in case of defamation, and is relevant also to the defense of fair comment in libel.
iv. Conspiracy that is a combination of persons or to cause illegal harm to another.
Malice is relevant here in the sense of improper motive.
v. Nuisance

In Bradford corporation v pickles (1895) A.C. 587

In an effort induce the corporation to buy his land, pickles sank a well on his land and
abstracted water which would have otherwise reached the corporation’s reservoir. It was
held that an injunction would not be granted to the corporation. The right to requirement
of reasonableness. It is an absolute right and an element of malice could not make it a
nuisance.

MOTIVE
It is important to be clear on the mental element or the question of malice in tort. The law
of tort is concerned more with the effects of injurious conduct than with the motives,
which inspired it. Hence, just as bad intension will not necessarily make the infliction of
damages actionable, so an innocent intention is usually no defence.
Wilkinson V Downton (1897) 2Q.B. 57
The defendant as a ‘practice Joke’ called on Mrs. Wilkinson and told her that her husband
had been seriously injured in an accident and had both his legs broken. Mrs. Wilkinson
traveled to see her husband at the hospital believing the message to be true, sustained
nervous shock and in consequence was seriously ill. This action was brought for similarly
in king v Phillips; the defendant carelessly drove his taxi over a boy bicycle. The boy,
who was not on the cycle screamed. His mother heard the scream and on looking out of
the window saw the crushed bicycle but not he son. As a result she suffered shock, which
made her ill. She failed in her action because it was held that a driver could only

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reasonable foresee that his carelessness would affect other road user and not persons in
house. He did not therefore owe a duty of care to p.
But in Tutton v walter the plaintiff kept bees on land near to the defendant farm. D had a
crop of oil seed rape which, when in flower, is particular attractive to bees. Despite clear
written instructions to the contrary D spray his crop while it was in flower with a
pesticide that was fatal to bees. This defence to p’s action was that on duty was owed
because he was doing on his own hand something that he was entitled to do, and that the
bees came on to the land without permission and were basically trespassers. The judge
did no accept their arguments. It was held that the duty was owed under the neighbour
principle and it had been broken. P therefore received compensation for the loss of his
bee colony.

ECONOMIC LOSS
where negligent conduct cause economic loss (i.e. financial loss that is no consequential
upon physical injury to person or property) the courts have been general unwilling to hole
that a duty of care exists.
In Muirhead v Industrial Tank Specialists the plaintiff established a lobster farm. He
intended to purchase lobsters cheaply in the in the summer, keep them alive unit
Christmas and then sell them at a higher price. A constant supply of circulating sea water
was needed to keep the lobsters alive. He installed the necessary tanks and pumps.
Unfortunately the pump motor could not cope with the fluctuations in English voltage
and a large number lobsters were lost a loss of a pump failure. P claimed compensation
for the and loss of potential profit. It was held that he could recover for the loss of the
lobsters and any financial loss suffered in direct consequence, but could no recover for
any loss of profit.

NEGLIGENT (CARELESS) STATEMENTS

If the statement causes physical injury, liability will arise. In Clay v crump the
defendant, an architect stated that a wall on a demolition site was safe and could be left
standing. It later collapsed injuring the plaintiff who succeeded against D for his
negligent statement.

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Where the negligent statement results in financial loss different rules of liability apply.
The difference concerns the persons to whom a duty of care is owed instead of the
neighbour test laid down in Donohue v stevenso, the court initially formulated in Hedly
Byrne v Heller ( 1963) 2 ALL E.R. 575, a much court case of HEDLEY BYRNE V.
HELLER.
Narrower test based on a ‘special relationship ‘between the parties. The facts were that
the defendants were bankers and the plaintiffs were advertising agents. They had a
mutual client’s E ltd who wished to place advertisements on T.V E required audit from P
so P asked D for reference. D stated that E was a respectably constituted firm and was
considered good, although the statement was made without responsibility on their part. P
therefore incurred personal liability on several advertising contracts. E then went into
liquidation and P were
Unable to recover over ₤ 1700 owed to them. P therefore sued D on his negligent
statement. It was held that he did have a possible action, and he would have succeeded,
but for the disclaimer of responsibility. In order to succeed in such a case the plaintiff
must show a special relationship by proving that :
1. He relied on the special skill and judgment of the defendant, and.
2. The defendant knew or ought to have known of this reliance and thus accepted
responsibility for making the statements carelessly. Seen also caparo industries P/C v
Hill Samuel BANK ltd and others 1990.

NERVOUS SHOCK
Nervous shock occurs when a person is so affected by a horrifying events that they suffer
an identifiable psychiatric illness. Ordinary grief and sorrow, which is reasonably
foreseeable does not amount to nervous shock. The court have been reluctant to regard a
duty is owed to persons who suffer nervous rather than physical injures. There are several
reasons for this:
1. fear of fraudulent claims
2. The difficult of fixing a monetary value to such loss.
3. Unfairness to defendant if damages become out of proportion to the negligent conduct
complained of.

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In a claim of nervous shock the plaintiff must fear injury to himself or a near relative and
the shock must result from actually seeing the accident rather than the aftermath. But in
certain cases, the court will make an exception. In Chadwick v British Railways Board
(1967). The Board was held liable in negligence for a serious railway accident in which
90 people died. The plaintiff was a voluntary rescue worked all night in the wreck. As a
result he later suffered from neurosis which necessitated hospital treatment. P succeeded
in his action against B.R. B. It was held that in the circumstances injury by shock to
voluntary rescue workers were foreseeable Accordingly a duty was owed to such person s
and damages could be awarded even though the shock did not arise from fear of injury to
himself or his family.

MC LOUGHLIN V O’ BRIEN (1982)

In Mcloughlin v O’ Brien the plaintiff‘s husband and three children were injured in a car
accident causes by the defendants’ negligent. One of the children died almost
immediately. At the time of the accident, P was at home about two Miles away. About an
hour later the accident was reported to her by a neighbour who said he thought her son
was dying. The neighbour then drove her to hospital where her fourth child (who and was
injury. P alleged negligence, claiming that the factory should have been closed. It was
held that the risk of injury did not justify such a drastic measure. P’s claim failed.
1. Similarly in Bolton v stone (1951) A.C 650. The defendant owed a cricket field.
Cricket balls had been hit out of the group and into the highway six to ten times in 35
years but had injured nobody. In this one instance, the plaintiff account the height of
the fence around the ground., the distance of the ground from the road and the
number of times that the balls had been hit out of the filed. It was than held that the
injury to the plaintiff was not reasonably with reasonable. In the course of judgment,
it was stated that the law is concerned with reasonable probabilities and not fantastic
possibilities.
2. The known characteristic of the party exposed to the risk.
In Parts v Stepney B. C. (1951) .The plaintiff, who only had one eye worked for the
council as a vehicle welder. He was blinded completely when a spark flew into his
one good eye. He sued his employers for negligence claiming that he should have

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 been supplied with goggles. The goggle was not thought necessary for two- eyed
welders. However since the loss of persons only good eye in far more serious that the
loss of one of two good eyes’ goggles should have been supplied to the defendant’s
failure to supply them was breach of their duty.
3. Whether the defendant was faced with an emergency.
The court will take into account the important of the object which the defendant was
trying to achieve and whether it was practicable and necessary for the defendant to
have taken the precautions which the plaintiff alleged should have been taken.
In Watt v Hertfordshire C.C. a fireman was injured when a jack slipped in a lorry
while going to an accident. The lorry was not equipped to carry the jack but it had
been used because the fire brigades were faced with an emergence. The plaintiff
claim in negligence failed.
4. In addition to any statutory and contractual duties owed by an employer to his
employee, an employer has a common law duty to act with reasonable act toward his
employees]. To assess whether he has discharged his duty it will be necessary t o
consider inter aila whether he has provided.
I. A competent staff.
II. Proper tools, machinery and premises.
III. A safe system of work and supervision
Was not in the accident) told her that her youngest daughter aged three was dead. At the
hospital she saw through a corridor window her other daughter (aged 7) crying, with her
face cut and covered in dirt and oil, she could also hear her son (aged 17) shouting and
screaming. As a result of seeing these injuries and the distressing way in which she
learned of them, P suffered a severe shock, depression and a change of personality.
Damages were awarded since the loss was reasonably foreseeable and the injury was an
illness rather than normal grief and sorrow.
However, in recent times more restrictive principles have been laid down for nervous
shock cases. In Alcock v Chief Constable of West Yorkshire it was established that the
person at fault owes a duty of care to a person who is not actively involved in the
accident only if:

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I. There is a close tie of love and affection with the primary victim such the is reasonably
foreseeable he will suffer nervous shock and;
II. There is proximity in times and space I. e. the claimant must see or hear the accident or
its immediate aftermath with his own in unovided senses.
The case resulted from the disaster at Mils Borough Fort ball Ground in Sheffield when
too many people were allowed into the ground. Nearly 100 people were killed and many
more injured as they were crushed against railings and barricades.
In line with the above principle it was held that only the parents or spouses of the victims
could recover damages for nervous shock, provided they actually seen the accident by
being at the ground or as a result of identifying bodies afterwards. Parents or spouses who
had only seen the disaster by viewing live television could not get damages.

BREACH OF DUTY
If a duty of care is established as a matter of law, whether or not defendant was in breach
of that duty is a matter decided by the judge on the facts of the care though the standard
required, i.e. that of acting as a reasonable man is a legal standard. The concern is with
how much care the defendant must take in order to discharge his duty of care this, he will
do if he takes reasonable care . this is an objective test i.e. test is did the defendant
exercise the care that a reasonable man would have exercise ?
It is not’ did he do his best’’. As stated by Baron Alderson in Blyth v Birmingham water
works Co. ( 1856) 11 Ex 781, negligence is the commission to something which a
reasonable man guided upon those conditions which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable man would
not do,
The care which s reasonable man would show varies with the circumstance. Some
relevant factors may be.
I. The magnitude of the foreseeable risk in Latimer v A.E.C A thunderstorm flooded the
defendant’s factory, making the floor slippery. The defendants did all they could to
clear the water and make the factory safe. P nevertheless slipped and was injured. P
negligence, claiming that the factory should have been do aid that the risk of injury did
not inshfy such drastic measure, P‘s claim failed.

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RESULTING DAMAGE TO THE PLAINIFF
It is necessary for the plaintiff to show that he has suffered some loss since negligence is
not actionable perse.
RESIPSA LOQUITUR (The thing speaks for itself)
Although the burden of proof in negligence normally lies on the plaintiff, there is a
principle known as resipsa the thing speaks for itself and where the principle applied the
court is prepared to lighten his burden. The principle applies whether it is so unlikely that
the court could find without further evidence that it was so caused.
The maxim applies when:
1) The ‘ thing ‘ is under the control of the defendant
2) The defendant has knowledge denied to the plaintiff; and
3) The damage is such that it would not normally have happened if proper care had been
shown by the defendant.
If there requirements are fulfilled there is prima facie evidence of a breach of duty. The
burden of proof is then shifted to the defendant who must prove that he did show
reasonable care. The maxim does not apply when facts are sufficiently known because it
depends on an absence of plaintiff victory. It merely shifts the burden of proof to the
defendant.
In Byrne v Boadle a barrel of flour fell from D’s ware house injuring P, a passer by. No
explanation could be given by D for the incident. The court therefore placed the burden
of proof on D who had show that he had not broken his a breach of duty of care.
Similarly in Mahon v Osborne, a swab was left in a patient’s body after an operation.
Clearly the patient could not prove a breach of duty, since he was under an anesthetic.
However the presence of the swab raised the inference of a breach of duty ( res ipsa
loquittur.
However in fish v Kapur res ipsa loguitur was hale not to apply. In that case, the plaintiff
was found to have a broken jaw after the defendant, a dentist, had extracted a tooth. It
was held that this was not a res ipsa loquitur situation since these were reasons other than
the dentist’s breach of duty which could have accounted for the broken jaw.

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OBJECTIVE STANDARDS – PROFESSIONALS
When a person has undertaken a duty which requires extraordinary skill higher standard
of care will be expected. For example, one would expect from a builder the degree of
skill appropriate to a reasonably competent member of his trade and from an accountant
also an objective standard of competence. Such persons may, therefore be negligence
even though they do their best.

MEDICAL PRACTITIONERS
Moreover in the case of medical practitioners it seems that because allegations of
negligence in the medical context are more frequent and serious, a high standard of proof
of negligence is required so that an error of clinical judgment does not of itself amount to
negligence.

ADVOCATES
No action is against them for negligence in conducting a case though it does in respect of
preparatory work or advice unless it is pre-trail work internally connected with the mail
itself.
Rondel v worsley (1967) 3 ALL E.R. 993

The appellant was charged with causing grievous bodily harm and was tried and
convicted. He was represented at the trail by the respondent barrister. T he appellant later
issued a writ and statement of claim against the respondent claiming damages for
professional negligence in the respondents’ presentation of the case and in his dealing
with evidence. It was held by the house of lords that on grounds of public policy a
barrister should be able to carry out his duty to the court independently and without fear.

STANDARD SET BY PUBLIC POLICY

In other cases public policy m ay also require a higher standard of care than the defendant
possesses so that again he may negligence even though he does his best.
Nettleship v Weston (1971) 3 ALL E.R.5)

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The plaintiff, a non-professional driving instructor, gave the defendant driving lessons.
The defendant was a careful driver but on the third lesson she failed t o straighten out
after Turing left and parked lump breaking the plaintiff’s kneecap. It was held that a
leaner driver owes a duty it his instructor to drive with proper skill and care, the test
being the objectives in e of the careful driver and it is n o def once that he was doing his
best.

CONTRIBUTORY NEGLIGENCE
Sometimes when an accident happens, both parties have been negligent an d this raise
the doctrine of contributory negligence. At common law if the plaintiff was guilty of
any negligence which c contributed to the cause of the accident, he recovered nothing.
But by virtue of the law reform (contributory Negligence) act where a person suffers
damage partly as a result of his own fault, and partly as a result of his own fault, and
partly due to the fault of another,th damages recoverable will be reduced accordinding to
his share of responsibility. A person may contribute to the damage he suffers although he
is not to blame for the accident. In O’Connell v Jackson (1971) 3 ALL E.R. the
defendant , a car driver, knocked the plaintiff off his motor cycle, the accident being
entirely the defendant’s fault. The plaintiff suffered severe head injuries which the
evidence showed would have been less serious if he had been wearing a crash helmet. It
was held that the plaintiff’s dam ages would be reduced by 15% . Similarly in froom v
butcher (1978) 3 ALL E.R. a failure by a plaintiff to wear a seat belt in a motor car may
also reduce damages on the grounds of contributory negligence. The court does not
approach the problem by saying ‘what injuries would be suffered if he had been wearing
a crash helmet (seat belt) - we shall compensate him for such injuries. ‘the court say-
‘given that he has a suffered injuries X,Y, and Z what was his percentage of fault either
in causing the accident or contrib. using to such injuries- his damages LO, shall be
reduced by this percentage’’ .
To prove contributory negligence it is necessary for the defendant to show that the
plaintiff owed him a duty of care, only that he failed to take reasonable care for his own
safety – see Froom v Butcher. In other words contributory negligence is used by the
defendant to reduce the damages he pays to the child.

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Young children will not normally be guilty of contributory negligence but it is a matter of
fact in each case. Furthermore the contributory negligence of an adult who happened to
be with the child is no defense to an action brought by the child.

Jones v Lawrence (1969) 3 ALL E.R. 267.

A boy aged seven years and three months ran out from behind a parked van across a road
apparently without looking in order to get to a fun fair. He was knocked down by
Lawrence who was traveling on his motor cycle at 80km / hour in a built – up area. The
boys’ injuries adversely affected his school work and he subsequently failed his
examinations. It was held that his conduct was only that to be expected of a seven year-
old child and could not amount to contributory negligence.
Oliver v Birmingham Co. (1932) 1KB. 35
A grandfather was walking with his grandchild aged four, when a bus approached quickly
without warning. The grandfather, being in progress, let go the child ‘s hand and the bus
struck the child. It was held that the damages award to the child should not be reduced to
take account of the grandfather’s negligence.

THE DOCTRINE OF ALTERNATIVE DANGER OR THE DILEMMA

PRINCIPLE
The sometimes happens that a person is injured in anticipating negligence. If a passenger
jumps off a bus which he believes to be out of control and break his leg in so doing he is
not prejudiced by the fact that the driver later regains control and the anticipated accident
is averted. He is not deprived of his remedy. This is referred to as the doctrine of
alternative danger, and an act done in the agonly of the moment cannot be treated as
contributory negligence. Thus in Jones v boyce (1816), in a coach accident, the plaintiff
was place by the negligence of the defendant in a perilous alternative either to jump or
not to jump. He jumped off the coach and was injured and transpired that had he kept his
seat he would have escaped. However, he was able to recover from the defendant because
he had acted reasonable and in the apprehension of danger.

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NUISANCE
Nuisances are divided into public and private.
A public nuisance is a CRIME while a private Nuisance is only a TORT. A public or
common Nuisance is on e which materially affects the reasonable comfort and
convenience of life of a class of the public who come within the sphere or neighborhood
of its operation. Whether the number of persons affected is sufficient to constitute a class
is one of fact every care it is sufficient to show that a representative cross section of that
class has been so affected for an injunction to issue.

Public Nuisance at common law include such diverse activities as carrying on an

offensive trade, keeping a disorderly house, selling food unfit for human consumption,
obstructing public highways and throwing fireworks about in the street.
Since public Nuisance is a Crime as well as a Tort, it means that it is prosecuted at the
instance of the director public prosecution (DPP), so long as the public only is injured,
no civil action can be brought for nuisance. Where a public highway is obstructed, I
cannot sue the obstructer for nuisance if I can prove no damages other than being delayed
on several occasions in passing along it and being mage to take longer router or to
remove the obstructed since these are inconveniences which are common to, and suffered
by everyone else. The reason is to prevent multiplicity of action. To succeed in tort, a
person would have to particular or special loss over and above the ordinary
inconvenience suffered by the public at larger e.g. if he falls into a trench unlawfully
opened in a street and breaks his leg.

ATTORNEY GENERAL v GASTONIA COACHES, The Times 12 / 11/ 76

CASTLE v St Augustine LINKS LTD and ANOTHER (1922) 38 T L R 615
LEWYS v BURENTT (1945) ALLER 555

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PRIVATE NUISANCE
Private nuisance may be described as UNLWAFULL INTERFERENCE with a person’s
use or enjoyment of land or something use, or connection with it. The essence of
nuisance is a state of affairs that is either continuous or recurrent, a condition or activity
which unduly interferes with the use or enjoyment of land.

Not every slight annoyance therefore is actionable. The law of private Nuisance
represents an attempt to pressure a balance between two conflicting interests that if one
occupier is using his land as he thinks fit and that if his neighbor in the quiet enjoyment
of his land everyone must endure some degree of noise, smell etc from his neighbor.

In CHRISTLE v DAVEY (1893) 1 CH 316,

The defendant was annoyed by a considerable number of music lesion given by plaintiff,
a teacher of music whose residence was separated from that of the defendant by a party
wall, interrupted the plaintiff lesions by knocking on the party wall, beating on trays,
whistling and striking. An injunction was granted because the defendant had acted
deliberately and maliciously for the purpose of annoying the similarly.

In HOLLYWOOD SILVER FOX FARM Ltd v EMMETT (1936) 2KB 468

The defendant deliberately caused guns to be fired on his own land near the boundary of
the plaintiff‘s land in order to scare the plaintiff‘s Silver Foxes during breeding time. The
vixens of these animals are extremely nervous during breeding time and much damages
was done in consequence of the defendant’s act, which was motivated by pure Spite.

DAMAGE

If the nuisance is a public one, it has long been settled that the plaintiff that the plaintiff
prove damages. In private nuisance, although may still be prove, it is presumed, / in fay v
PRENTICE (1845) 1 C B 828. A Cornice of the defendant‘s house projected over the
plaintiff‘s garden and it was hale that the law should infer injury to the plaintiff without
proof of it.

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DEFENCES
1) C ONSENT OR Volenti non fit injuria as in case of rugby-
SIMMS v LEIGH RUGBY FOOTBALL CLUB
2) Self – defense: it is lawful for any person to use reasonable degree of force the
protection of himself or any other person against any unlawful sue force.
3) Parental or similar authority: A parent is not guilty of an assault if he physically
interferes with his child by way of reasonable restrain or chastisement. If the child is
sent to school with headmaster or teacher is entitled to administer reasonable
punishment to the child.
4) Prevention of trespass or ejection of a trespass it is lawful for any occupier of land or
for any other person with the authority of the occupier to use a reasonable degree of
force in order to prevent a trespass from entering or to control his movements or to
eject him after entry. A trespass cannot be forcibly repelled or ejected until he has
been requested to leave the premises and a reasonable opportunity of doing so
peaceably has been afforded to him.
5) Defendant acting in support of the law sometimes an assault or imprisonment may be
justified on the support of the law. The onus of proving legal justified lies on the
defendant.

The law does not recognize any power to detain the person of another which falls short of
a formal arrest. But if a person is in lawful custody there is no need to release him before
arresting him on another charge. Where there is a breach of the peace. It is the right and
duty of every citizen to arrest without warrant any person for a breach of the peace
continuing in his presence to if there is a well – founded fear of its renewal.
a) The general defense of violent necessity inevitable accident self defense and statutory
authority all apply but mistake is no defense.
b) Entry by license e.g. Theatre guests
c) Justertii- This is a rule which states that person claiming land from another who is in
possession of it can succeed only by showing a stronger title than the person in
possession.

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1) Coming to nuisance no Defense

It is no defense to prove that the plaintiff came to the nuisance or that the place is a
convenient one for committing it. This means that if the annoyance is unreasonable in
the particular district, then the plaintiff can recover even if it has been going on long
before he came there.

In BLISS v HALL

The defendant had set up a candle making business, which emitted dires noisome,
noxious, and offensive vapor fumes, smell and stenches, to the discomfort of the
plaintiff who had bought a house near it. It was held to be no defense that the business
had been in existence for three years before the plaintiff arrived.

2) Usefulness not in itself a Defense

The mere fact that a process or business is useful to persons generally in spite of its
annoyance to the plain tiff is no defense.

In ADAMS v URSELL (1913) 1 Ch 269

A fined fish shop was held to be a nuisance in the residential part of a street where it
was carried on. It was urged unsuccessfully that an injunction would cause great
hardship to the defendant and to the people who were customers.
3) No Defense that it is due to many

It is no defense that the nuisance was created by independent acts of different persons,
although the act of any one them was not per se unlawful, e.g. where 100 people
independently leaves 100 wheelbarrows in a place and the obstruction consists in the
accumulation of these vehicles and not in the presence of any one of them.

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TWENTY YEAR’S PRESCRIPTION A DEFENSE
Twenty year’s continuance will, by prescription, Legalize a private nuisance but not a
public one. The period will not commence to run until the nuisance is known by the
plaintiff to exist. The secret discharge of pollution upon his premises cannot be a roof
prejudice to his right until he knows of or suspects it.

LIVERPOOL CORP v COGHILL & SON Ltd (1918) 1 Ch 307.

In STURGES BRIDGMAN (1879) 11 Ch D 852, a Confectioner had more than 20
years used large pestles and mortars in the back of his premises which abetted on the
garden of a Doctor and the noise and vibration were not felt to be nuisance during that
period i.e. there had been no actionable interference with the Doctor‘s enjoyments of his
owe property. Then, however the Doctor built a consulting room at the end of his garden
and for first times found that the noise and Vibration materially interfered with the
pursuit of his practice. He was granted an injunction against confectioner whole
proceeding period of twenty years.

CONDUCT PERMITTED BY STATUE

Conduct that otherwise would be a nuisance may be permitted by a statue. However, in
exercise the power conferred by the statue, reasonable care must be taken to prevent the
recurrence of something so inconsistent with the extent of the power given by the statute
that it is a nuisance.

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DEFENCES
a) INEVITABLE ACCIDENT
In NATIONAL COAL BOARS v EVANS in the course of excavating the foundation of
a building D damages a cable belonging to the plaintiff. Court was held that since the
presence of the cable was unforeseeable, D was not liable having the defense of
inevitable accident.
- The accident condition not have incanted
- Could not have for seen of shorting a low because in a free and injured somebody.
You can risk this defense .
Defendant can escape the liability for trespass to good can establishes that his act was
neither international negligence. But these don’t mean he will be exposed on grounds of
mistake.

b) REASONABLE DEFENCE OF PERSON OR PROPERY

For example injuring a dog which is attacking somebody.
In SIRL v CAESSWELL, the defendant killed the plaintiffs dogs which were
troubling his sheep which were about to give birth, his defence succeeded.

c) PURSUANCE OF LEGAL RIGHT OR LEGAL PROCESS

For example levying distress for rent; seizure of goods by the sheriffs office under a
writ of fifa.
e.g. you arrest somebody with a charge of rape and findly you find some suspected
state cars then you still charge him with that office.

d) In addition trespass to goods or land will not be unlawful if it is by police e.g. if they
enter premises without a warrant to make an arrest or if they entry premises with a
search warrant, they may take articles found premises if they reasonable believe that
they are evidence in relation to an offence. You plead the defence of pursuance of
legal

22
Mistake. Is to defence but it can only become amount in cases of
i. Mahaove prosecution
ii. Tort with midmoon falsehood
iii. Doesn’t
iv. Table imprisonment.

GENERAL DEFENCES IN TORT

A frequent form of defense in an action in tort is a demand of the facts alleged in a claim
that is in accident, defendant may deny over speeding.
The following are the defenses:
i. Volenti non fit injuria (no injury can be done to a willing person). This means that
a person who has voluntarily consented to the commission of a tort may sue on it.
The consent of the plaintiff must be a true consent to both. The physical and legal
risks. The consent may be expressed orally or in writing or may be implied from
the circumstances of the case. Mere knowledge of the risk is not usually sufficient
there must be consent (voles) to the risk.
The defense does not apply where a dangerous situation has been created by the
defense negligent action and a person is placed in an emergency to decide to act
to save or protect the lives of others. A person of reasonable courage who acts and
is injured in these circumstances cannot be described as acting willingly
(rescuers)

ii. MISTAKE
The general rule is that mistake, either of law or fact is no defense in law that is
ignorance of law.

iii. NECESSITY
In some cases damage done intentionally may be excused if done from necessity.
The defense is a rare one and is available only when the defendant was compelled
by circumstances to prevent a greater evil that is cope v shape. Defendant

23
 (gamekeeper) went on to adjourning land of the plaintiff and made a firebreak in
order to prevent the spread of fire to his own land where he had sitting pleasants.
Plaintiff sued for trespass held that the defendant had acted reasonably and the
threat of fire was a real one.

(d) STATUTORY AUTHORITY

It is a defense to an action in tort to show that a statute or subordinate legislation
authorizes the alleged act. The authority given by statute may be either absolute or
conditional. Absolute authority allows the act even though it may cause harm to other
persons. Conditional authority merely allows the act provided that it causes no harm to
others for example ZESCO, local Authority, Railway.

(e) SELF DEFENSE

A person may use reasonable force to defend himself or any other person against
unlawful force. A defendant will not be liable provided that the amount of force used is
reasonable and proportionate to the harm threatened.

DEFENSES
i. Justification
ii. Fair comment
iii. Privilege
iv. Apology
v. Offers of Amends
i. Justification – you can plead justification as a defense even though some details
may be untrue. If an alleged defamatory is true, the plaintiff suffers no damage or
her/his reputation. In libel or slander in respect of words containing two or more
charges against the plaintiff, the defense of justification will not fail merely
because the truth of every charge is not proved
ii. Fair comment – the defense is restricted to fair comment on a matter of public
interest. What public interest is for the judge to decide in each case i.e. conduct of
persons in public officials.

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 iii. Privilege – the defense protects certain defamatory statements from action at law
on the grounds of policy i.e. the free expression of opinion and facts in
parliament.

ABSOLUTE PRIVILEGE
Exists in the following cases:
i. Statements made in parliament
ii. Judicial proceedings
iii. Lawyer and client
iv. Matters of state.

QUALIFIED PRIVILEGE
Means that defense is qualified to the extent that the statement in question was made
without malice and with an honest belief in its truth, if a statement is made maliciously
the law withdraws the prosecution of privilege and the defendant will be liable for
defamation.
The following are qualified privilege matters:
i. Legal or moral duty – where maker has a duty to inform about something.
ii. Private interest – prosecution of one’s private interest
iii. Statements to authorizes – complaints to authorities
iv. Reports of parliamentary proceeding or judiciary proceedings

(d) APOLOGY – This is a special plea, but it is seldom used since no other defense can
be set up. One may plead that:
i. That the publication was made out of malice or gross negligence
ii. That a full apology was published at the earliest opportunity
iii. That compensation has been paid into court.

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(e) OFFER OF AMENDS
It is a defend if one does not know of the circumstances by which words innocent on the
face of it might be understood to be defamatory to the plaintiff.

OTHER DEFENSES
Other valid defenses are. Consent of the plaintiff provided there is no negligence on the
part of the defendant. The act of God.

DEFENSES
i. Act of God
ii. Act of stranger – act by 3rd party
iii. Default of plaintiff
iv. Consent of plaintiff - e.g. common benefit cisterns, fireuntuges
v. Statutory authority

TRESPASS TO THE PERSON

A Trespass to the person is an intention interference with the person or liberty of other.
Trespass to the person is restricted to intentional acts so that where as Unintentional act
cause physical injury . the correct action is negligence. Trespass to the person is
actionable per sc i.e. without proof of loss unless the defendant established that his act
was justified. It may three forms: assault battery and false imprisonment.

TRESPASS TO GOODS
Trespass to goods is a wrongful physical interference with them. It may take many forms
such a break the head lamps of a car or removing a type from a car or the car itself from a
garage or in the case of animals beating killing them.

The interference must be direct and not consequential, thus putting out poison for an
animals to take is probably not trespass since the interference is not direct, a requirement
of all true forms of trespass.

26
There are generally three forms of trespass to goods:
a. Taking the goods
b. Damaging goods or altering their physical condition
c. Interfering with goods, for example moving them about such as chasing sheep, cattle
etc. Creswell
As trespass is an interference with possession, if the plaintiff is not in possession (i.e.
having immediate physical control) at the date of the alleged meddling cannot sue for
trespass. However some persons not in actual possession are deemed to have possession
for this purpose e.g. a master who has given custody of his goods to his servant or
personal representative of a deceased person is deemed to be possession.

ARREST AND THE TORT OF TRESPASS TO THE PERSON

An arrest or other restrain of a person as by stopping and searching him will be unlawful
and actionable as a trespass in civil law unless following requirement are met.

ASSAULT
An assault is an attempt or offer to apply unlawful force to the person of another. It is the
act of putting another person in reasonable fear apprehension of an immediate batter.
There must ----------present ability to carry out the threat as this is the basis of the tort i.e
that a person is put in present fear of violence. It is actionable to point unloaded or toy
gun at a person who does not know that it is unloaded or it is a toy. To amount to an
actionable tort. It is not enough that mere words are used no matter how insulting or even
menacing; th intent to do violence must be expression threatening acts and not merely in
threatening speech.
Words accompanying act otherwise amounting to assault may prevent the act from being
an assault.

IN TUBERVELLV SAVAGE (1969) the defendant during the brandished his sword at
the plaintiff saying “if it were ________ time I would not take such language from you”
it was held that no assault been committed

27
even threatening acts do not constitute an assault unless they are of such a nature as to put
the plaintiff in fear or apprehension of immediate violence .to shake one’s frits in a
man’s face is an assault to shake it at a man who is so far away is not actionable.

BATTERY
The application of force to the person of another without lawful amount amounts to
battery. to intentionally bring any material into contact wit the person of another is
enough application of force to give rise to a battery.
Thus to throw water on a person or to use a “hot comb ’’ to the scalp of a customer which
was not ordered or to pull a chair under him whereby he falls to the ground is a battery. It
is a battery to forcibly take from under someone some object which he holds or wears. It
is also probably a battery to project heat. Light noise or vapors onto another person in
such a manner as to cause physical injury or personal discomfort. This is so matter how
trivial the amount or nature of the force may be and even though it neither it does nor is
intended nor is likely or able to do any harm.

In FAGAN v METROPOLITAN POLICE COMMISSIONER (1968) it was held

that an omission could also be committed through an omission. In that case Fagan was
driving his car when he was told by a constable to draw into the kerb. He stopped his car
with one wheel on the constable’s foot and was slow in restarting the engine and moving
the vehicle off. He was convicted of assault on the constable and it was held that his
omission constituted a battery on the constable and his appeal failed.

FALSE IMPRISONMENT
The wrong false imprisonment consist in the act of arresting or imprisoning any person
without lawful justification or otherwise preventing him without lawful justification from
exercise his right of leaving the place in which he is. It can simply be said to be unlawful
bodily restraint. This means that it can be committed by continuing a lawful
imprisonment longer than is justifiable or by imprisoning a person in an unauthorized
place.

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The words “false imprisonment ’’ simply means unlawful detention and should not be
taken in their ordinary sense. To constitute false imprisonment i.e. being jailed. It is
enough that the plaintiff has been in any way completely deprived of his personal liberty.
An unlawful arrest is false imprisonment as is the unlawful prevention of a person from
leaving the place in which he is e.g. house, a car or a classroom.

In MEERING v GRAHAME WHITE AVIATION. It was stated that “ a person can

be imprisoned white he is asleep. While is in state of drunkenness. While he is
unconscious and while he is a lunatic ’’ This case showed that it is not necessary for the
plaintiff to know that he is being detained. The facts of the case were that the plaintiff
was suspected thefts from his employers although he did not know that he was a suspect.
When he was asked to answer some questions concerning the thefts, he voluntarily
agreed- he still did not realize that the was a suspect. He later found out that while he was
being question there were two of the works security guards out side the door who would
have prevented him leaving if he had attempted to do so. His claim for false
imprisonment succeeded if though at the time he was not aware of it.
To constitute imprisonment the restraint must be complete i.e. it must be on side so that if
certain exist are open a person can claim false imprisonment simply because he has been
prevented from going in a direction of his total.

In BIRD v JONES the defendant closed off the public footpath over one side of a public
bridges and charged people admission to his enclosure to watch a boat race. The plaintiff
climbed into the enclosure from one side and was prevented from leaving from the other
side. He was however told that he could go out the same way that he came in. it was held
that there had been on false imprisonment as the restrain had not been total.
It is not an actionable tort to refuse to allow a person to premises when he does not fulfit
a reasonable condition subject to which he cantered them.

IN ROBISON v BALMAIN NEW Co. the terms of a contract to travel on a ferry

provided that the passenger must pay one penny or entering the wharf and a further penny
on leaving. The plaintiff paid his penny to enter but just missed the ferry. He attempted to

29
leaves without paying another penny but was restrained from doing so until he had paid.
He failed in his false imprisonment action. The court said there was no duty no a person
to make exit from his premises gratuitous where a person had entered on the basis of a
definite contract which involved their leaving in another way similarly.

In HERD v WEARDALE COAL AND COKE CO. certain miners having been towered
down the defendant’s mine wrongfully refused to continue their work and demanded that
they should at once be taken to the surface. The defendants however refused to do
stopped the working of the cage which made the miner remain in the against their will.
Their claim failed.

ARRESTABLE OFFENCES
A private person may arrest without a warrant anyone who is or whom he with
reasonable cause suspects to be in the act of committed an arrestable offence. A police
constable may arrest without warrant in the situations above and he may also arrest
without warrant someone who is or is suspected on reasonable grounds to be above to
commit an arrestable offence.

TORTS AFFECTING PROPERTY

TRESPASS TO LAND
Trespass to land is interfered with the possession of land. It is not enough that the
plaintiff is the owner he must also have possession. Interference with the possession of
land forms but it must be direct e.g. unauthorized entry on land. To place things on land
e.g. leaving a dead cat in a neighbor’s grade. To remain on land after one’s authority is
terminated constitutes a trespass. So if a friend invites you into house for meal. Tries of
your company and asks you to leave, then if you refuse you are a trespass. If you abuse
the purpose for which you are allowed to be on land you become a trespass.

Entry below the surface is a trespass as is entry into airspace if it takes place within the
area of ordinary use.

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In KELSON v IMPERIAL. TOBACCO CO. The plaintiff and defendant were neighbors.
The defendant however occupied a taller building than plaintiffs. They attached an
advertising sign to their wall which projected a few inches into the airspace above the
plaintiff’s premises.

As regards aircraft, the aviation act aircrafts flying at reasonable height from liability for
trespass but imposes strict liability for all damages by things falling from it.

CONVERSION Deals with ownership and not with possession.

Conversion is committed by a dealing with the goods of a person which constitute an
unjustifiable denial of his rights in them or the ascertain of rights inconsistent with the
title owners title. It is the main method by which right in personal property are protected.
Thus it may be committed by wrongfully taking possession of goods by wrongfully
disposing of them by refusing to give them up, destroying them or altering their nature.

WHAT CONSTITUTES CONVERSION

a) Taking possession. Taking possession of another’s goods will normally be conversion
as well as being trespass, but there will be no conversion where the interference is
merely temporary and is unaccompanied by any intention to exercise any right over
he goods. If I snatch your hat from your head with intent to steal it, that is conversion
as well as trespass, but if I throw it at another person, that is trespass only for I am not
questioning your title to it. So too if you shift my bicycle from a public stand in order
to get at own is not conversion.

MERELY RECEPTION OF GOODS

Where A without lawful authority transfers B’s goods to C, the mere voluntary reception
of them by C is general conversion, however innocent C may be. This may be the receipt
of goods by a buyer and receipt for a cheque by a banker.
That you don’t give that you don’t have nermo chart good non have interntanal
(Trespass)
Lethang V cooper (1965) 1 Q. B. 232.

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THE INVOLUNTARY BAILEE
Involuntary reception of goods is not conversion. Such as where a thief in order to escape
detection inserts a pure which he has stolen from a third person,. Into the pocket of an
innocent person. It has long been the rule that even where the receiver knows that the
thing belongs to someone else, he incur no liability by having it thrust upon him.
However he must not willfully damages or destroys them unless they become a nuisance
where the goods are “unsolicited goods” i.e. goods which have been given to me by a
push seller without having asked them a person is files to treat tem of as un conditional
gifts if the sender fails to take them back within six months. The law relating to an
involuntary Bailee may be stated as follows:

1. To be come a Bailee you have to be consent or agreed to take possession. He cannot

without his knowledge consent be made a baliee in the strict sense of the good of that
term.
In LETHBRIDGE v PHILLIPS, L a cerebrated miniature paint lent a miniature to B
who wished to show it to defendant. B sent it to the defendant without any previous
knowledge or consent on the defendant’s part. The miniature was damages by being
placed near a large stove in the house of the defendant who was nevertheless held not
liable to L.

2. Mere negligence on the part of the recipient with respect to the safe custody of the
thing will not make him liable. So
In HOWARD v HARRIS (1884) where a playwright sent a manuscript of a play to a
theatrical producer who had never asked for it and who lost it, the producer was hale
not reliable.
3. But he must not willfully damages or destroy the thing as observed by one judge, “ I
am not bound to warehouse it, nor am I entitled to turn it onto the street” ( per
Bramwell B in Hiort V Bott )

4. The recipient does no wrong if the acts reasonably in trying to return the goods

32
ABUSING POSSESSION
Abuse of possession which the defendant already has may take many forms such as sale
accompanied by delivery of the plaintiff‘s goods or their documents of title to another.

In HOLLINS v FOULER D a broker sold and delivered cotton belonging to P. He was

acting on behalf of a crook although he did not know this at the time. He was held liable
in conversion because he had sold and delivered goods denial of P’S title.
The distribution of goods amounts to conversion and so does the alteration of their
nature. If I make an omelet of your eggs or a statue out of your block of marble, that is
conversion.

DEMAND AND REFUSAL

Proof of a demand by the plaintiff for the return goods met by a refusal of the defendant
is one of the common ways of producing evidence of conversion for it tends to show that
the defendant’s detention of them is wrongful. The refusal must be unconditional or it is
conditional, the condition must be an unreasonable one.

TITLE OF PLAINTIFF
To maintain an action at the time of the defendant‘s be without either ownership or
actual.
a. Ownership and possession of the goods
b. Possession of them
c. An immediate right to them but without either ownership or actual possession.

FINDING
The popular saying that “Finding is keeping” is a dangerous haft truth. The finder of a
chattel will be liable to the true owner in conversion. He can only have title as will enable
him to against everyone excepted in two cases.
1. The rightful owner: he can not obtain a better title against the true owner if the finder
appropriates the chattel; he not only commits the tort of conversion but is also guilty

33
 of the crime of theft unless he appropriates the chattel, in the belief that the owner
cannot be discovered by taking reasonable steps.
2. The possession of the land on which the chattel is found has a title superior to that of
the finder.

REMEDIES
The remedies available to the victim of a tort are:

(1) DAMAGES
It is a characteristic feature of the law of tort that the damages to which a plaintiff is
entitled from the defendant in respect of a wrongful act must recovered once and for all.
He cannot bring a second action upon the same facts simply because his injury proves to
be more serious then was though when judgment was given. There are certain instances
however when damages can be recovered more than once.
a. Where two distinct rights are violated. Where distinct wrongful acts of the defendant
cause damage to distinct rights of the plaintiff, successive action can obviously be
brought.

In BRUNSDEN v HUMPHREY (1884) 14 QBD 141, the plaintiffs’ cab was damage by
the defendant‘s negligence and the plaintiff himself was injured. Having recovered
damages in respect of the cab alone the plaintiff was held entitled to bring second action
for his personal injuries.

b. Continuing injury. If I wrongfully place something on your land and leave it there,
that is not simply a single act of trespass, but is a continuing trespass giving rise to a
fresh cause each time damage occurs as a result of it and accordingly successive
actions can be brought.

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KINDS OF DAMAGES
An award of damages is made in order to compensate the plaintiff for his injury. If not
compensatory damages may be:
1) Contemptuous
2) Nominal or
3) Exemplary or punitive

1. CONTEMPTUOUS
The amount awarded here is merely derisory and indicated that the court has formed a
very low opinion of the plaintiff‘s bare legal claim or that his conduct was such that he
deserved at any rate morally what the defendant did to him;

2. NOMALLY
Nominal damages are awarded when the plaintiff’s actual damage as mostly occurs in
the cases of tort are actionable per se.
3. EXEMPLARY OR PUNITIVE
In any care in which damages are not large, that is where they cannot be precisely
calculated in money terms, the court may take into account the motives and conduct of
the defendant and where these aggravate the plaintiff’s injury the damages will be
correspondingly increase. These “aggravated damages’’ are truly compensatory being
given for the injury to the plaintiff’s proper feelings of dignity and price.
Exemplary damages on the other hand are not compensatory but are awarded to punish
the defendant and to deter him from similar behaviour in future. Exemplary damages are
in principle objectionable function of the law. Apart from cases where they are allowed
by statue, exemplary damages can now be awarded in only two classes of care.
a) Oppressive, arbitrary or unconstitutional action servants Government.
b) Case where the defendant’s conduct has been calculated by him to make a profit for
himself which may well exceed the compensation payable to the plaintiff.
The point here is that the defendant must not be allowed to make a profit from his own
deliberate wrongful act.

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MEASURE OF DAMAGES
The basic principle for the measure of damages is that there should be restitution in
intergrum. Where any injury is to be compensated by damages, in settling the sum of
money to be given for reparation of damages you should as nearly as possible get at that
sum of money which will put the party who has been injured in the same possible as he
would have been in if he had not sustained the wrong for which he is now getting his
compensation or reparation.

SELF – HELP
This is where a person does something to free himself or to bring the tort to an end. A
person wrongfully imprisoned may escape. A trespasser or a trespassing animal may be
expelled with no more force than is reasonable. Goods wrongfully taken may be
peaceably retaken.

ABATEMENT OF NUISANCE
A Nuisance may be abated i.e. removed. Before abatement is attempted notice should be
given to the offending party to remedy the nuisance unless it is one of omission and the
security of lives and property does not allow time for notice or unless the nuisance can be
removed by the abettor without entry wrong doers’ land . I may cut the braches of my
neighbors’ tree which project over or into my land without notice to him.

1. INJUNCTION
An injunction is a judgment or order of the court restraining the commission or
continuance of some wrongful act or the continuance of some wrongful omission. Like
other equitable remedies the issue of injunction cannot be demanded as of right and one
will not general where damages would be a sufficient remedy. Injunctions are generally
sough against such torts as nuisance, continuing or repeated trespass, and infringement
of copyright.

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TYPES OF INJUNCTION
INTERLOCUTORY INJUNCTION
Is an injunction granted provisionally until the hearing of the case on the merits? The
court on an application for an interlocutory injunction does not proffer to anticipate the
final outcome of the action. A plaintiff need not establish a prima facie but merely that
there is a serious question to be tried.
MANDATORY INJUNCTION
Normally injunction are prohibitory, they forbid the defendant from persisting in his
wrongful conduct, but the court has power also grant a mandatory injunction by virtue
of which the defendant is actually ordered to take positive action to rectify the
consequences of what he has already done.

In REDLARD BRICK LTD v MORRIS (1970) A. C 652, the defendant’s

excavations on their own land had caused of the plaintiffs land to subside and had
endangered part of the remainder. The plaintiff recovered damages in respect of the
subsidence which the defendant to restore support to third land.

QUIA TIMET INJUNCTION

Injunction are normally issue when a tort has been committed. It is premature for the
plaintiff to seek an injunction before any damages actually occurred. Where however
the conduct of the defendant is such that , if it is allowed to continue, substantial
damages to the plaintiff is almost bound to occur, the plaintiff many bring a “ quia
timet” action that is an action for an injunction to prevent an apprehended ( feared)
legal wrong.

SPECIFIC RESTITUTION OF PROPERTY

Order for the specific restitution of property may be for the recovery of land or for the
recovery of chattels.

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 DEFAMATION
Defamation is the publication of a statement that to lower a person in the estimation of
right – thinking members of society generally or which tends to make them shun or
avoid that person.
Defamation can be in TWO forms i.e. Libel or Slander.
A Libel consists of defamatory statement or representation in permanent form; if
defamatory meaning is conveyed by spoken words or gestures it is slander. Example of
Libel is pictures, Statues, Effigies writings or films. Even the talking part of a film is
libel as it is capable of being retrieved.

YOUSSOUPOFF v METRO- GOLDWYN MAY OR ( 1934) 50 TLR 582

The distinction between libel and slander is important for legal consequences. Firstly, if
the libel provokes a breach of the peace, it is a crime as well as tort whilst slander is
never criminal. Secondly libel is actionable per se, i.e., without special damage whilst in
slander, special damage must be proved except in certain cases such as:
1) where there is imputation of a criminal offence punishable with imprisonment
2) Imputation of a contagious or infectious disease likely to prevent other persons from
associating with the plaintiff e.g. such as AIDS.
3) Imputation of un-chastity or adultery to any women or girl.
4) Imputation of unfitness, dishonesty or incompetence in any office, profession, calling
trade or business held or carried on by plaintiff at the time when the slander was
published.
ESSENTIALS OF DEFAMATION GENERALLY
A person alleging defendant (whether it is slander or libel) must prove the following
requisites
1) The words must be defamatory
2) They must refer to the plaintiff
3) They must be “ maliciously” published
1. THE WORDS MUST BE DEFAMATORY
To be defamatory, the words must tend to lower the plaintiff’s reputation in the minds
of right minded and right thinking members of society or cause him to be shunned or

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voided. The mere fact that the words complained of are vulgar or abusive will not make
them defamatory.

INNUENDO
The words of which the plaintiff complains may be either:-
a) Defamatory in their natural and ordinary or
b) Defamatory only in the light of facts and circumstances known to persons to whom
the words were published.
Where words are not defamatory in their natural and ordinary meaning, then an innuendo
is required. This is a statement by the plaintiff of the meaning, which he attributes to the
words and he must prove the existence of facts to support that meaning or else the
innuendo fails. An innuendo is the statement is not defendant but is only by way of an
implication.

KNOWLEDGE OF THE DEFENDANT IMMATERIAL

It is immaterial whether the defendant knew or did not know of ensued facts, which turn
a presumptively innocent statement into a defamatory one. In CASSIDY v DAILY
MIRROR NEWSPAPERS ( 1929) 2 KB 331, the defendant published in their newspaper
a photograph of one C and Miss X together with the word, Mr. C the race – home owner
and Miss X whose engagement has been announced”, Mrs. C was and was known among
her friends as the lawful wife of C although she and C were not living Mrs. C sued them
the innuendo being that C was not her husband but lived with her in immoral
cohabitation. It was HELD that the innuendo was established.

2. THE WORD MUST REFER TO THE PLAINTIFF

If the plaintiff referred to by name there is no difficulty. There is no requirement that the
defendant should have intended to refer to the plaintiff. A statement is still defamatory of
the plaintiff even though it is fictitious or to be true of some other person.
In HULTON v JOHNES (1910) A C 20 a newspaper publishes a humorous account of a
motor festival at Dierre in which imputations were cast on the morals of one Artemus
Jones, a church warden at peckham. This person was believed by they writer to be

39
 fictitious. In fact there was a barrier named Artemus Jones who was not a Churchwarden,
did not live at peckham and had not taken part in the festival. His claim was however
successful as his friends swore that they thought the words referred to him.

In NEWSTEAD v LONDON EXPRESS NEWASPAPER, the defendant published a

statement “Harold Newstead, thirty year old camber well man” had been convicted of
bigamy. This was true of a camber well Barman of that name but it was untrue of the
plaintiff, Harold Newstead aged about thirty who assisted his father in a hairdressing
business in Camber well . The defendants were held liable.

UNINTENTIONAL v LONDON WITHIN THE DEFAMATION ACT

Act liability for defamation does not depend on the intention of the person responsible for
the main publication, the people find themselves liable for defamation in respect of
purely innocent statement and this in turn produces hardship. The Defamation Act
mitigates this by providing that person will not be liable for innocently published words.
The conditions to be satisfied include inter alia.
a) That the publisher did not intend to publish them of land concerning that other person
b) That the words were not defamatory on the face of them and the publisher did not know
of circumstances by virtue of which they might be understood to be defamatory of that
person.
A person who has published defamatory words innocently may make an offer of amends.
This offer consists in making a suitable correction and apology and if the documents were
circulated to notify such persons of the correction.

THE WORD MUST BE MALICIOUSLY PUBLISHED

Publication is the communication of the word to at least one person other than the person
defamed. Communication to the plaintiff himself is not enough, as he can not bare
“respect ’’ for himself or his reputation. Reputation is what other people think of a man
and not what he thinks of himself.
For the communication to amount to publication, it must be understood by the recipient
to be defamatory. There is no publication of it if is in a foreign language, which he does

40
not understand or is deaf to hear or blind to read it. There also will not publication where
a person gets to know of the statement through his wrongful act e.g. unlawfully opening a
sealed letter, or listening in to a telephone conversation.

DEFAMATION
Defamation is the publication of a statement which exposes a person to hatred, ridicule or
contempt or causes them to be shunned or avoided by right thinking members of society
generally. In other words it is a false statement about a person to their discrete. There are
two classes of defamation:
i. Libel – which is a statement made in permanent form, as far as libel is concerned,
may be in a written or printed statement, an effigy, a statement a caricature or a
film. Libel if it is to breach of the peace is a crime.
ii. Slander – which is a statement in transitory form. Slander as such is not a crime.
The transitory form as far as slander is concerned is usually by speech or gesture.
Libel is actionable perse i.e. on mere publication and the plaintiff need not show that
any peculiar loss has been suffered following the libel.
In slander the plaintiff must prove actual damage i.e. financial loss except in the
following cases:
i. Imputation of any crime punishable by imprisonment
ii. Imputation that plaintiff is suffering from a contagious disease rendering the
person to be excluded from society e.g. V.D
iii. Imputation of unchastely in a woman
iv. Imputation of unfitness for any office, profession, calting, trade or business hold
or carried by the plaintiff at the time of defamation. Thus it is defamatory to say
to a solicitor that they know no law or of a carpenter that they cannot make a
simple joint.
In a trial the question whether the statement is defamatory is one of fact to be decided by
a judge or magistrate.

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PROOF OF DEFAMATION
In a successful claim in defamation the plaintiff must prove four points:
ii. That the statement was defamatory
iii. That the statement referred to him/her
iv. That the statement was published
v. That damage was suffered (in slander, outside the dour exceptions)
i. Defamatory statement – there are variety forms from the definition of the act. One
special form of defamation is Innuendo. Though words may not on the face of
them appear defamatory, they may nevertheless, be such by reason of perculiar
surrounding circumstances or facts, because a special meaning is attributable to
them. There is a hidden meaning or implication possible more telling and harmful
in its effect than a bold and obvious statement. The plaintiff must show that the
facts were known to the person to whom the defamation statement was made and
that reasonable persons would interpret the words as defamatory.
ii. Reference to plaintiff – plaintiff must prove that he/she was the person marked
out by the words.
iii. Publication – consists in making known in writing or orally, or in other form to
some person other than the plaintiff.
iv. Repetition and dissemination – the repetition of a defamatory statement orally, or
in writing is a fresh publication. It is no defense in such cases to plead that the
person who repeats the statement did not originate it.

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DEFENCES
There are three specialized defences to an action for defamation. These are: 1.
1.justification, (or truth)
2. Fair comment
3. (a) privilege which may be (b)absolute or (c) qualified.

1. JUSTIFICATION (OR TRUTH)

The essence about defamation is the publication about falsehoods concerning the
plaintiff.However, the plaintiff need not to prove that the statement is false for the law
presume that in his favor. But the defendant can plead justification, which is the technical
name for truth. This is where the defendant proves the truth of his statement even though
he may have made it maliciously .This is not to be taken that the law thrives on the
indiscriminate infliction of truth on other people. But defamation is an injury to a man
reputation and if people think the worse of a person when they hear the truth about him,
then his reputation has been reduced to its proper level. To succeed, the statement must
be true in substance and infact the justification must be as broad as the charge and must
justify the precise charge. Where a person repeats a defamatory statement, he has to show
the truth of his statement and not that it was merely made to him .You can only justify
this statement by showing that peter had swindled the Government and not by showing
that the statement was made by me.
In LEWIS v DAILY TELEGRAPH, the defendant had published a statement that the
plaintiffs were being investigated by the fraud squad. The plaintiff alleged that words
meant that they had been guilty of fraud. The defendants were able to show that the
plaintiff were indeed being investigated by the fraud squad and the defense succeeded.
Under , the common law, if a defamatory statement contained more than one charge then
each must be justified. This meant that failure to prove each and every charge was a
ground for dismissal of the charge .By the defamation act however if a defamatory
statement contained more than one charge, justifaction will not fail if the words not
proved to be true do not materially injure the plaintiffs reputation having regard to the
truth to the remaining charge.

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In ALEXANDER v NORTHWESTERN PLY the defendants had published a statement
that the plaintiff had been convicted of traveling on a train with out a fire and jailed for
21days. The defendants pleaded justification and succeeded.
See also MICHEAL SATA v THE POST (unreported). Also Micheal sata v Katyoka
December 11, 2007 times of the completion………………………………………………
…………………………………………………………………………………………….

3. PRIVILEGE
In the interest of freedom of speech, the law considers certain statements to be privileged
and consequently can not be the subject of judicial proceedings. Privilege may be
absolute or qualified.

A absolute privilege covers case in which complete freedom of communication is

regarded as of such paramount importance that actions for defamation cannot be
entertained at all however outrageous the untrue statement and however malicious the
motive. This includes.
i) Statement in parliament. A person cannot sue in respect of statements passed during
parliamentary debates.
ii) Reports, papers, votes and proceeding ordered to be published by parliament.
iii) Judicial proceedings, whatever is stated in Judicial proceedings either orally or in
writing is privileged between regardless of who makes it, Judge, Witness, Plaintiff or
defendant.
iv) Communication between lawyer and client. Any professional communication
between lawyer and client is privileged.
v) Fair and accurate newspaper reports of judicial proceedings in Zambia.

QUALIFIED PRIVILEGE
The maker of the statement is protected only if he acted honestly and without malice.
If the plaintiff can prove express malice, the privilege is displaced or lost. This
includes
i) Fair and accurate reports of parliamentary proceedings

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ii) Fair and accurate reports of judicial proceeding which the public may attend
iii) Statements made by persons under a legal or moral or social duty to communicate
them to them e.g. ex-employers references.
iv) Statement in protection of ones property or interest.

In OSBORN v BOUTLER a bar owner complained to the brewers that the beer they
supplied him was of poor quality. The replied that they had heard rumours that the bad
quality was due to the plaintiff watering it and communication the report to a third party,
and the court Held that the statement was privileged.

THE LAW OF TORTS

The word Tort derived from the Latin tortus, meaning crooked or twisted, and the
Norman French Tort, meaning wrong. In English law we use the word Tort to denote
certain civil wrongs as distinct from criminal wrongs.
Whether or not a plaintiff had a right of action against another for an alleged wrong
depended on the existence of a writ wherewith to begin the action. The rights available
depended in practice on the writs available.

DEFINATION OF TORT (Salmond Law of Torts)

A tort has been defined as a civil wrong for which the remedy is a common law action for
unlignidated damages, and which is not exclusively the breach of a contract or breach of
trust or merely equitable obligation.

TORTIOUS LIABILITY (Winfield)

Arises from the breach of a duty primarily fixed by law, such duty is towards persons
generally, and its breach is repressible by an action for an unliguidated damages.

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THE LAW OF TORT NOT TORTS
What are the essential differences between these writers?
One school maintains there is a general principal of liability in tort, and that all harm is
actionable in the absence of first cause or excuse that is there is the law of Tort (not
torts). The other school maintains that there are a number of specific torts, and that unless
the damage or injury suffered can be brought within the scope of one or more of these
torts there is no remedy.

DAMAGE AND LIABILITY

As a general rule, where one person suffers unlawful harm or damage at the hands of
another, an action in tort for that damage of injury arises. An action in tort lies, for
example in the situation where ‘A’ negligently collides with ‘B’ stationary car on a road
and cause damage to it.
Sometimes we find instances where harm is done by one person to another yet the law
does not provide a remedy: this is described as damnium since injury (damage without
legal wrong) ordinary trade competition is the most common example. Let us suppose
that a giant super market sets up adjacent to, and in competition with a small family
grocery, selling all goods cheaper. The result could well be that the family grocer, unable
to compete is forced out of business. Harm is done to the grocer, and his family is that
they lose their livelihood, yet the law offers no remedy to them.
In contrast to the above, situations were there is a legal wrong but no loss or damage.
This is described as injuria since damno and is an exceptional to the general rule that
there must be damage or injury before action may be brought.
Certain torts are actionable purse (action in themselves) for example trespass, libel in
either of these cases no loss need be alleged or proved.

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CAPACITY OF PARTIES
i. Corporations – Corporations can sue and can be sued in its corporate names. It is
liable vicariously (i.e. on their behalf) for torts committed by its servants or agents
acting within the scope of their authority.
ii. Infants or minors – As a general rule minority are no defense in tort. Where
however a tort is founded on malice or where negligence is a necessary ingredient
of the tort, the age of the minor is relevant. A minor may be incapable of forming
the specific intent and what will be negligent in an adult may not be so in a minor.
iii. Spouses (married men and women) – At common law a husband could not sue his
wife and vice versa except for protection and security of her own property. Law
Reform Act 1962, now each of the parties to the marriage shall have the right to
sue as if not married.
iv. Persons of unsound mind - are in general liable for their torts. However, if he is
incapable of forming the intention or malice as required in torts of malicious
prosecution or deceit, will not be liable. A person who is insane that their actions
are involuntary will escape liability.
v. Judicial Immunity – Judges, Diplomats and Presidents have absolute immunity
their judicial, official capability.

VICARIOUS LIABILITY
The circumstances in which a person will be liable for the torts of another even though
the person liable is not a party to the tort is that of a master and servant principle and
agent. The master will be liable for acts of his servants and a principal will be liable for
acts of his agent.

NEGLIGENCE
Negligence can be proved in the following points:
i. That the defendant was under a duty of care
ii. That there had be a breach of that duty
iii. That as a result the plaintiff has suffered damage.

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THE DUTY OF CARE
Negligence is not a ground of liability unless the person who conduct is impeached is
under a duty of taking care. In Donoglive v Stevenson (1932) Lord Macmillan said the
categories of negligence are never closed.

D. V. Stevenson
A friend of the plaintiff bought from a retailer a bottle of ginger beer manufactured by the
defendant. The bottle was given to the plaintiff who became ill from drinking the
contents. The bottle contains the decomposed remains of a snail. The bottle was an
opaque so that the noxious substance could not have been seen and was not discovered
until the plaintiff was refilling her glass. The consumer sued the manufacturer in
negligence.
Held that the manufacturer was liable to the consumer in negligence.

RECOGNIZED DUTIES IN LAW

a) Highway to other uses/passengers
b) Employer to employees
c) Profession persons to patients/clients
d) Carrier to passengers
e) Schools to children
f) Police to general public

STANDARD OF CARE
The standard of care is that of an ordinary prudent person. In other words that care which
a reasonable person would use or show in the circumstances of the particular case under
consideration. (A man on the Omnibus).

NEGLIGENT MISSTATEMENT
Fraudulent misstatement will give rise to an action in deceit.

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RES IPSA LOQUITUR
Where the duty is so plain as to admit of no denial, the performance indicates fault is
expressed by the maximum res ipsa loquitur (the thing speaks for itself)
A general rule the plaintiff must prove that the defendant has by their act or omission
been negligent in their discharge of a legal duty owed to the plaintiff. There must be
reasonable evidence of negligence.

CONTRIBUTORY NEGLIGENCE
Where a person suffers damage as a result party of his own fault and partly of the fault of
many other person or persons, a claim in respect of that damage shall not be defeated by
reason of the fault of the person of the fault of the person suffering the damage, but the
damages recoverable in respect thereof shall be reduced to such extent as the claimant
thinks just and equitable having regard to the claimant’s share in the responsibility for
damages.

DOCTRINE OF NOVUS ACTUS INTERVENIENS

A novus actus interveniens (a new act interveneiening) occurs when some act of a third
person ointerveins between the wrongful act or omission of the defendant and the
subsequent damage to the plaintiff. The act has to decide whether the new act ought
reasonably to have been foreseen by the defendant if it ought to have been foreseen the
defendant remains liable if not he is not liable and the novus actus may be liable and the
defendant’s act or omission will not be treated as the cause of the damage.

BREACH OF STATUTORY DUTY

A plaintiff may have a right of action in tort as the result of a breach of duty imposed by a
statute.

OCCUPIER’S LIABILITY
An occupier of premises owes the duty, the common law duty of care, to all his/her
visitors, except in so far as he/she free to and does extend, restrict, modify or exclude
his/her duty to any visitor by agreement or otherwise.

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THE RULE IN RYLANDS V FLETCHER (1868)
A person who for his own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not
do so, is prima-facie answerable for all the damage which is the natural consequences of
its escape.

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