Question 1

It is undeniable that, we ought to be alert and aware of our actions, although accidents
may occur, it is ones duty to take extra caution, so as to protect oneself and the next
person, it now becomes cardinal for us to discuss, the case of Adolf, who is an
employee of Lusaka language school and has caused injury on one of his students by a
clumsy act of dropping books, he later throws a board rubber out of annoyance at the
Danny after he is laughed at, causing Danny to sustain a black eye. Adolf further asks
Eva to see him after class to discuss her course work, Adolf indecently assaults Eva
whilst reviewing her essay.

It is important to establish the principle of foreseeability to start with, it is cardinal to

establish if the injury caused by Adolf’s act of dropping the books on John was
foreseeable and that he owed John a duty of care as it was in the case of Pals Graf v
Long island Railroad1 where it was held that it could not reasonably be foreseen that
pushing the passenger would injure someone standing several feet away .It can be said
that it was unforeseeable that Adolfs clumsy act would lead to John getting injured.
However, the Caparo test in the case of Caparo v Dickman2 brings out the principle of
proximity as it provides that the more foreseeable the harm, the more likely proximity
will be found between the parties and the closer the proximity and the more foreseeable
the harm, it for this reason that we can establish that Adolf owed John a duty of care
because the fact that he injured John upon dropping the books clearly exhibits that his
was in closer proximity hence the duty to care. Adolf had created as risk when he
carried the books in what would be assumed as close proximity of the student(John)
and he was supposed to take necessary measures to avoid an accident, this is brought
out in the case of Capital and Countries plc v Hampshire County Council 3, where
the court held that they did not actually cause the fire ,however, they had done
something that created danger or actually made the situation worse, but they had a
positive duty to take the necessary measures to deal with the danger and they were
therefore liable ,so is Adolf in this case.

1
(NY1928)2
2
[1990]2 WLR
3
[1997]QB
In his defence Adolf can state that although there was a breach in the duty of care, it
was unforeseeable that the size of the risk he had created was going to cause Johns
injury, using the principle that was brought out in the case of Bolton v Stone4 where the
House of Lords considered the chances of injury to someone standing where the
claimant was, the house of lords also established that defendants are not supposed to
take extreme precautionary measures against very slight risks. It is cardinal for Adolf to
stress the meaning clumsy in his defence, so as to aid and allow the court to determine
the degree of risk he caused and the extent of damage. Oxford learners dictionary
defines clumsiness as an act of doing things in a way that is not smooth or steady or
careful, the court at trial must then determine to what extent Adolf had caused the
damage or injury.

Although Adolf can state that there was no direct evidence of negligence as, his act of
dropping the books on John show his inability to observe the standard of care that he
had, the court of law at trial may use the holding in Scott v London and St Katherine
docks5 where the court held that although there was no actual evidence of negligence,
it could be inferred from the fact that the bags of sugar fell from the open door of the
defendants warehouse above, as there was no way the sugar bags could have jumped
6
out by themselves , therefore the court could use the Latin maxim Res Ipas loquitur
which means “the facts speak for themselves”, and actually charge Adolf of damages
for injuring John.

It is important to establish without further delay, if Adolf was an employee of the Lusaka
Languages school or not and if they (the school) would be held legally liable for Adolf ‘s
actions. The case of Hall v Lorimer7 brings out an element of who the aw considers an
employee with regards to the case of Adolf. In the case the court held that the workers
will be considered to be in business on their own account if they provide their own
equipment and take financial risks, hire helpers inter alia.However, it is stated that Adolf
used the schools laboratories and essential note books, this clearly shows that Adolf
could be considered an employee of the company.
4
[1951] AC 850
5
(1865) 3 H
6
C.Elliot & Quinn, law of tort (Cavendish Press) 458
7
[1992] 1WLR
An employer will only be responsible for torts committed by their employees if those
torts are committed in the course of the employment, his means that the employer will
be liable not only where they have permitted the employee to do the wrongful act, but
also in some cases where they have not given such permission. This will be the case
where the wrongful act is so closely connected with the task the employee has, this is
seen in the case of Century Insurance v Northern Ireland Road Transport 8 ,the
defendants’ employee, a petrol tanker driver, was unloading petrol from his tanker to
underground storage in the claimant’s garage, when he struck a match to light a
cigarette and then dropped the lighted match onto the ground. This caused an
explosion, damaging the claimant’s property. The defendants were found to be
vicariously liable for his negligence, on the basis that what he was doing at the time was
part of his job, even if he was doing it in a negligent way. Similarly, we can hold Lusaka
Language school accountable for the negligent acts of Adolf. There are incidents where
an employee has done something which is both a crime and a tort. He or she will have
been prosecuted for the crime by the state but, if their actions also fall within the
definition of a particular tort, they can also be sued by the victim. Since few individuals
have enough money to make them worth suing, the victim will try to impose vicarious
liability and sue the employer in tort instead.

Because vicarious liability makes employer and employee joint tortfeasors, each fully
liable to the claimant, an employer who is sued on the basis of vicarious liability is
entitled to sue the employee in turn, and recover some or all of the damages paid for
the employee’s tort. This is called an indemnity, and the employer is entitled to sue, this
is seen in the case of Lister v Rumford Ice and Cold Storage 9 The House of Lords
held that the lorry drivers negligent driving was not only a tort against his father, but also
a breach of an implied term in his employment contract, to the effect that he would
exercise reasonable care in performing his contractual duties. It was decided that the
employer was entitled to damages equivalent to the amount which it had had to pay to
the father. Similarly, Adolf’s employers have the right to sue him for the damages they
are likely to incur due to Adolf’s acts.

8
[1942] 1 All ER
9
[1957] 2 WLR
According to layman’s language, the act of hitting Danny with a board rubber is
considered assault. However, according to tort one would consider it battery Adolf's act
upon being annoyed amounted to what could be considered an intentional tort which
could be described as the necessary intention to bring out physical contact, it is the
unlawfulness of the contact that creates the wrong, although it has been argued that the
act of battery can be reckless or careless. It is a must that it must be done on the
plaintiff by the defendant in most cases directly in order to attain amount to battery.
Nonetheless, the act of throwing an object at someone will still amount to battery and in
this case the act of hitting Danny with a board rubber amounted to the tort of battery, the
case of Scott v Shepherd10 where the defendant was held liable for trespass to a
person because he threw a lighted squib that caused an explosion, a similar case is that
of Wilson v Pringle which brings out the principle that contact must be hostile 11 and
Adolfs act cannot be considered friendly or gentle. Therefore, Adolf may be charged
with trespass to a person due to his act.

With regards to Adolfs act on Eva, when he called her to discuss coursework and
indecently assaulted her, in this case we will look at indecent assault as an offensive
sexual act or conduct expressed on the claimant, and the act of indecently assaulting
Eva amounts to intentional torts who’s prime motive is to harm the claimant, similar to
the case of Danny, his (Adolf’s act) unlawful act amounted to trespass to a person,
Eva’s act of seeing Adolf after lessons to discuss her essay did by no means
whatsoever amount to consent, although the holding in the case of Norberg v Wynrib12
was that the claimant had consented the trial Judge stated that Consent is not voluntary
if obtained by force or threat of force, under the influence of drugs/alcohol, fraud,
misrepresentation. The exploitation of “power dependency” or a relatively weaker
plaintiff is also involuntary consent. Consent is vitiated when there is (a) power
inequality between parties, and (b) defendant exploits that inequality. It is for this reason
that Adolf should be tried by the State under criminal law for committing an offence.

Question

10
(1773) 3 Wm
11
[1987] QB
12
[1992] 2 SCR
The case of Candler v crane13 brings out economic loss with regards to negligence in
other words tort, where the holding of the court of law was that there was no duty of
care held by the accountants with regard to the third party, their responsibility was only
to the client with whom they had a contractual relationship, this implies that unless
there are exceptions.

Although, the case of Goodwill v British Pregnancy Advisory services 14 does not
carter for deceased persons claim, it brings out the principle that a third party can sue
for claims due to the negligence of the defendants , it brings out the difficulty that comes
about when a third party is not known by the defendant, but has been a victim of the
acts of the defendant, this case gives rise to how difficult it is to determine the
defendants liability and the need to compensate loss as justice demands.

With regards to deceased persons and economic loss suffered by those who were
dependant on the deceased the case of Ross v Caunters 15 gives an illustration on how
a dependant can sue for claims on economic loss due to the negligent act by the
defendant , who in this case was a solicitor who negligently prepared a will and this later
led to the claimant not being able to receive her inheritance, it was a claim of pure
economic loss. In cases where the deceased takes measures before demise to ensure
that his estate his dependant receive their inheritance and this is not done, the
defendants have the right to sue for the negligent work of the tortfeasor this is seen in
the case of White v Jones16.

At times claims may rise from the deceased estate this is seen in the case of Carr-
Glynn v Frearsons where the estate had suffered no loss and the party who had
suffered loss had no claim; here, allowing a duty of care to the disappointed
beneficiaries might give rise to two claims for the same loss, one from the intended
beneficiaries and one from the estate. However, the Court of Appeal held that although
the estate had a claim, any damages it recovered by bringing that claim would not go to
the claimant.

13
[1951] 2 KB
14
[1996] 1 WLR
15
[1980] Ch 297
16
[1999] Ch 326
A conclusion can be drawn that, claims for economic loss depend on the relationship
between the parties and claims may be made and compensation received if the loss
was indeed caused by the negligent acts of the defendant. However, if the claims rise
when there is an omission or an error on the side of the claimant, it is null and futile to
make claims as no form of compensation will be received.

b) The tort of passing off has developed into a powerful branch of intellectual property,
expanding to be of application far from its original use in the nineteenth century. The law
of passing off is sometimes referred to as the law of “common law trademarks”,
because so often the goodwill and reputation of a business is associated with its
trademarks. It recognizes that there may be rights in a business with unregistered
trademarks by virtue of substantial goodwill and reputation. Since ‘goodwill’ in business
is an asset, and therefore, a species of property, the law protects it against
encroachment. What is protected is an economic asset. It secures reasonable area of
monopoly to traders. It is thus complimentary to trademark law which is founded upon
statute rather than common law. But there is a difference between statute law relating to
trademarks and passing off action; while registration of a mark itself gives a title to the
registered owner, the onus, in a passing off action, lies upon the plaintiff to establish the
existence of a business reputation he seeks to protect.

The action for passing off is a common law remedy and its gist is deceit. The law casts
an obligation on the defendant not to pass off its own goods (or work) as if they had
been produced by the Plaintiff. The modernization of the tort of passing off lies in this
that what was previously a misrepresentation of goods have now become a
misappropriation of another man’s property in the business or goodwill or
misappropriation of another’s personality. The plaintiff must establish that his business
or goods have acquired the reputation he alleges and this can be done by showing that
a substantial proportion of people who are likely to become purchasers of the goods of
the kind in question associate the name with them .
Question 3
a) Trespass to goods can be defined as wrongful interference with goods, this tort
essentially provides protection for the person entitled to immediate possession of
the chattels in question. Any form of deliberate destruction of the goods could
amount to trespass, although it is not necessary to establish motive it is n
essential thing to consider at trial, the act of even using goods without permission
could constitute trespass, and it is no defence for the defendant to claim honest
but mistaken belief that the goods belonged to him this is seen in the case of
Kirk v Gregory17 The tort of conversion can also be in cooperated in the tort of
trespass to goods as consists of dealing with goods in a manner inconsistent with
the rights of the true owner, so denying the right of the owner to the goods, or
asserting a right which is inconsistent with the owner’s right. The claimant must
prove that he had possession of the goods or the right to immediate possession
of them at the time of the wrongful act.

Conversion of goods can occur in so many different circumstances that framing a

precise definition of universal application is well near impossible. In general, the
basic features of the tort are threefold. First the defendants conduct was
inconsistent with the right of the owner (or person entitled to possession)
Second, the conduct was deliberate not accidental. Third the conduct was so
extensive an encroachment on the rights of the owner as to exclude him from
use and possession of goods. The contrast with the lesser acts of interference. If
these cause damage they may give rise to trespass and not conversion.

b)

A passing off action is essentially an action in tort. The purpose of this tort is to
protect the commercial goodwill and to ensure that people’s business reputations
are not exploited. Since ‘goodwill’ in business is an asset, and therefore, a
species of property, the law protects it against encroachment. What is protected
is an economic asset. It secures reasonable area of monopoly to traders.

17
1990] 3 All ER
The tort of passing off protects the goodwill of a trader from a misrepresentation that
cause damage to goodwill. The law of passing off prevents one person from
misrepresenting his or her goods or services as being goods or services of the claimant,
and also prevents one person from holding out his or her goods or services as having
some association or connection with the plaintiff when this is not true.” Passing off
action is common law remedy for the unregistered trademarks which have acquired
sufficient goodwill, against the unauthorized use of the mark by a third party. It is often
used as an alternative remedy to trademark infringement. The case of Thomas Bear &
18
Sons lts helps us understand passing off better, as it was held in the case that n held
that a man is not to sell his own goods under the pretence that they are the goods of
another man: he cannot be permitted to practice such a deception nor to use the means
which contribute to that end. He cannot, therefore be allowed to use names, marks,
letters or other indicia, by which he may induce purchasers to believe that the goods
which he is selling are the manufacture of another person. The case helps us
understand the principle that provides no man is entitled to represent his goods as the
goods of another man; and no man is permitted to use any mark, sign or symbols,
device or other means, whereby, without making a direct false representation himself to
a purchaser who purchases from him he enables such a purchaser to tell a lie or to
make a false representation to somebody else who is the ultimate consumer.

c)

A claim for malicious falsehood may by brought if someone maliciously makes a false
statement that causes the claimant financial loss.

Claimants need to prove the statement in question is not true. This differs with libel
cases where the assumption by the court is that the defamatory statement is false and
the burden is on the defendant, say the journalist, to prove that the statement is in fact
true.

One good example of a malicious falsehood is that, while it is not defamatory to state of
an individual that they retired, if a statement was published that a professional (such as

18
[1933] 3 ALL ER
a doctor, lawyer or dentist) were retired, then their business or work would suffer
considerably as clients and patients would make other arrangements.

The element of malice must be present on the part of the defendant for a malicious
falsehood claim to succeed. Malice has been defined as a statement made by a person
who knows it to be false or who is reckless as to its truth. It could be a false statement
made by a person who is moved to this action by some improper motive. Negligence is
not regarded as malice.

Before the Defamation Act 1952, in cases of malicious falsehoods the claimants had to
prove actual damage but this rule no longer applies to published statements in written
form as long as the words were calculated to cause damage or (and this applies to both
spoken and written words) if the words are likely to cause financial damage to the
claimant in his office, profession, calling, trade or business 19

d)

Damages can be defined as a remedy in the form of monetary award to be paid to the
claimant by the defendant for causing a loss or injury. There exist two types of damages
namely, compensatory damages and non-compensatory damages,

Under compensatory damages the principle of restoring the losses incurred by the
claimant is discussed an is called restitutio in integrum. There are essentially two sorts
of losses: pecuniary, which simply means financial and non-pecuniary, which means
losses other than those of money. For example, pecuniary losses would include loss of
earnings due to injury while non-pecuniary losses include pain and suffering after an
injury. With regards to compensatory damages, the principle that provides that in order
to calculate damages for a breach of duty, it is necessary to refer to what the duty
consisted of. defendant will only be liable for consequences arising from negligent
performance of that duty is the one on which claims operate on.

Under non compensatory damages. In some cases, however, damages may be

awarded for different reasons, and these may be less, or much more, than is required to
compensate the loss directly. There are four types of non-compensatory damages:
contemptuous, nominal, aggravated and exemplary.

19
Act No 32
 Contemptuous damages Where a court recognizes that the claimant’s legal rights
have technically been infringed, but disapproves of their conduct, and considers that the
action should never have been brought, it may order contemptuous damages. These
will amount to no more than the value of the least valuable coin of the realm. A claimant
awarded contemptuous damages is also unlikely to recover costs. Contemptuous
damages are not often awarded; their main use is in defamation actions.

e)

Absolute privilege is a defence that protects the makers of certain defamatory

statements because the law considers that, in the circumstances covered by the
defence, free expression is more important than protection of reputation. The defence
makes it impossible to sue the person who makes a defamatory statement in any of the
following circumstances:, Any statement made in Parliament by a member of either
House, Any report published by either House , or such a report when republished in full
by someone else Any statement made by one officer of state to another in the course of
the officer’s duty. Secretaries of State and Ministers are officers of state, but it is not
clear how far below that rank absolute privilege extends. Any statement made by one
spouse to another. Statements made by officials and other servants of the EU in the
exercise of the

Like absolute privilege, qualified privilege is a defence that protects statements made in
certain specified circumstances. There are two types of qualified privilege: qualified
privilege under statute, and qualified privilege in common law,

The situations in which statutory qualified privilege will apply are divided into two
groups. The first group, listed in Part 1 of Sched. 1 to the 1996 Act, are described as
being covered by qualified privilege ‘without explanation or contradiction’. This means
that statements made in the situations listed will be covered by the defence, unless
made with malice. They are:

The first school of thought describes it as fair and accurate reports of the proceedings of
legislatures, courts, governmental inquiries and international organizations held in public
anywhere in the world. Fair and accurate copies of, or extracts from, material published
by or on the authority of any government, legislature, international organization or
international conference, anywhere in the world.
Whilst the second group, is as ‘privileged subject to explanation or contradiction’. This
means that a person who makes a defamatory statement in one of the situations listed
cannot normally be sued unless they have made the statement with malice; but they
can lose this protection if the person they made the statement about attempts to put
their side of the story, and the publisher of the statement does not give them a
reasonable opportunity to do so.

The principle that distinguishes absolute privilege from qualified privilege is the one that
is derived from Adam v Ward and provides that; Where information is communicated
by someone who has an interest, or a moral, social or legal duty in communicating it, to
someone who has a corresponding duty or interest in receiving it, it can be covered by
the defence of qualified privilege20

20
1917
Question 4

ISSUE

Whether or not the acts against Mwape amount to defamation.

Can Mwape sue for damages under defamation in the event where he was told to retire
and that his performance was like that of an amateur on media platforms and this has
led to him losing his fan base.

RULE

According to section 191 of the penal code Any person who, by print, writing, painting,
effigy, or by any means otherwise than solely by gestures, spoken words, or other
sounds, unlawfully publishes any defamatory matter concerning another person, with
intent to defame that other person, is guilty of the misdemeanor termed "libel". 21

Section 192 of the penal code provides that defamatory matter is matter likely to injure
the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to
damage any person in his profession or trade by an injury to his reputation. It is
immaterial whether at the time of the publication of the defamatory matter the person
concerning whom such matter is published is living or dead: 22

Section 1(1) of the Defamation Act 2013 introduces a new requirement, that the
defamatory statement must have caused, or be likely to cause, serious damage to the
claimant’s reputation.23

In Berkoff v Burchill the journalist Julie Burchill described the actor Steven Berkoff as
‘hideous-looking’ and compared him to Frankenstein’s monster. Although upsetting,
these kinds of remarks would not usually be considered defamatory, but in this case the
court said that the fact that the claimant earned his living as an actor meant the words
made him an object of ridicule.24

21
Cap 87 of the laws of Zambia
22
Ibid (n 21)
23
Act No 13 of 2013
24
1996] 4 All ER
In Bowman v MGN Ltd (2010) a West End actor called Simon Bowman won damages
of £4,250, after the Daily Mirror’s website described him as former Eastenders actress
Hannah Waterman’s ‘new man’. While the words in themselves would not be
considered defamatory, Mr Bowman had been in a serious relationship with someone
else for 20 years, and so the words could be taken to imply that he was being unfaithful
to that person.25

In Sim v Stretch it was held that is a statement that tends to lower the Plaintiff in the
estimation of right-thinking by members of society 26

APPLICATION

Section 192 of the penal code defines libel and provides that provides that defamatory
matter is matter likely to injure the reputation of any person by exposing him to hatred,
contempt or ridicule, or likely to damage any person in his profession or trade by an
injury to his reputation. It is immaterial whether at the time of the publication of the
defamatory matter the person concerning whom such matter is published is living or
dead27 and the actions towards Mwape are likely to amount to defamation, the acts
against Mwape can amount to defamation as it was established on Slim v Stretch
where it was held that the statement would lower the plaintiffs estimation of right
thinking by members of society, as he is likely to be seen at a lower standard of
professionalism and competency in the eyes of his fans. 28

Mwape can likely sue for damages according to Section 192 of the penal code
provides that defamatory matter is matter likely to injure the reputation of any person by
exposing him to hatred, contempt or ridicule, or likely to damage any person in his
profession or trade by an injury to his reputation. It is immaterial whether at the time of
the publication of the defamatory matter the person concerning whom such matter is
published is living or dead29. Nelson and Nkosi had injured Mwape’s reputation when
they made their comments on their respective media platforms causing Mwape’s fans to
25
[2010] EWHC 895
26
1936] 2 All ER
27
Ibid (n 21)
28
Ibid (n 26)
29
Ibid (n 21)
turn against him, which may cause him financial loss as it was in the case of Berkoff v
Burchill where it was held that the claimant had incurred financial loss due to the
defendants statement as he made a living from acting 30, similarly Mwape earns living
from playing soccer, therefore , the act by the two may cause Mwape loss, and it is
more appropriate that he likely sues for damages, where he may get compensated as it
was in the case of Bowman v MGN where the claimant won the claim for damages as
the defendants statements implied he was unfaithful and the statement could ruin his 20
year old relationship31,in the same way Nelson and Nkosi’s statements implied Mwape
was of no good use to soccer teams and this would mean Mwape would be
unemployed.

CONCLUSION

The acts against Mwape amounted to defamation and the specific wrong committed by
the two is libel, although it I provided for in criminal law , it (libel) is also a tort and they
(Nelson and Nkosi) had satisfied the provisions of Section 1(1) of the Defamation Act
2013 which provides; introduces a new requirement, that the defamatory statement
must have caused, or be likely to cause, serious damage to the claimant’s reputation,
and32 they must therefore be sued for libel for committing a tort against Mwape.

30
Ibid (n 24)
31
Ibid (n 25)
32
Ibid (n 23)
BIBLIOGRAPHY

STATUTES
The Penal Code, cap 87 of the laws of Zambia

The Defamation act of 1952, act No 32 of 1952

The Defamation act of 2013, act no 23 of 2013

CASES
Adam v Ward [1917] AC 309

Berkoff v Burchill [1996] 4 All ER 1008; The Times, 9 August 1996

Candler v Crane, Christmas & Co [1951] 2 KB 164; [1951] 1 All ER 426

Century Insurance v Northern Ireland Road Transport [1942] AC 509; [1942] 1 All ER
491

Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] 1 All ER 568; [1990] 2 WLR
358

Capital and Counties plc v Hampshire County Council [1997] QB 1004; [1997] 2 All ER
865; [1997] 3 WLR 331

Carroll v Fearon [1998] PIQR P416

Goodwill v British Pregnancy Advisory Service [1996] 1 WLR 1397

Hall v Lorimer [1992] 1 WLR 939

Lister v Romford Ice and Cold Storage [1957] AC 555; [1957] 1 All ER 125; [1957] 2
WLR 158

Norberg v Wynrib [1992] 2 SCR 226, 92 DLR (4th

Palsgraf v Long Island Railroad 162 NE 99 (NY 1928)

Ross v Caunters [1980] Ch 297

Scott v Shepherd (1773) 3 Wm Bl 892

Thomas Bear & Sons case v

Pravag Narain AIR 1940 PC 86

Wilson v Pringle [1987] QB 237; [1986] 2 All ER 440; [1986] 3 WLR 1

White v Jones [1995] 2 WLR 207

 STUDENTS’ COVER PAGE

UNIVERSITY OF LUSAKA

School:………………………………….OF LAW
Degree Programme:……BACHELORS DEGREE
Course name and Code…….…LAW OF TORT..L201
Assignment No. 2

Student’s Surname: …………………NSHINDANO

Student’s First name: ……………CHILUFYA

Student number: .………….………LLB19114018

Mode of Study: ……………………FULL TIME

EmailAddres………………

valentinanshindano@gmail.com

Phone Number: ………………0960444206

Lecturer’s name: ……………………Ms L MWANZA

Due Date: …………………………04th MAY,2020