Notes On Law of Tort-Aggrey Wakili Msomi

PREPARED BY
JOVIN JOSEPH
TORT I
TOPIC ONE; NATURE AND CONCEPT OF TORTUOUS LIABILITY
It is important branch of law as it was originated from common law particularly in

UK and USA but in Tanzania it is the process of development, it mainly involves
wrongs whether public or private wrongs like tort and contract. Wrong can be
committed into two or types namely commission or omission
MEANING; a tort is simply a civil wrong arising from an act or omission of an

individual or a group of individual, such as civil wrong give rise to a civil
proceeding for damages generally. In other word tort is a civil wrong done by one
party against the other and the later may take a civil action against the former
According to Professor P. H. WINFIELD, he define tort as a tortuous liability which

arise from the breach of duty primary fixed by the law, this duty is toward persons
generally and its breach repressible by an action for unliqudated damages. This
means the law primarily it fixed the duty to a person. Right and duties are
applicable to people/ person or individual;
 This duty is to what person is generally. It is very difficult to state the

exactly who person is generally injured
 It is liquidated damages; damages it is nothing but its compensation to the
injured party or damage is nothing but harm/ loss/ injury of the injured
person
Therefore the main remedies in tort is damages unliqudated, damages are mostly
granted in most cases because parties are not known to each other
Other remedies in tort a plaintiff may seek into court of law are;
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series of notes on law of tort
 Self-help
 Injunction
 Specific restriction of property
SALMOND, define tort as a civil wrong which a remedy is a common law action
for unliqudated damages and which is not exclusively the breach of contract or
the breach of trust or other merely equitable obligations. Which means tort is a
civil wrong, it is violation of aright which is recognized by the law
SALMONDS shows that there is a general principle of liability in tort and that all
harm of actionable in the absence of just cause or excuse therefore there is a law
of tort and not torts
Whereas Prof P. H. WINFIELD main terms that there are number of specific torts
and that unless the damages or injury suffered can be brought within the scope of
more or one of these torts is no remedy
However the basic idea that the two scholar share is that;
 Tort is a civil wrong

 Not every civil wrong is a tort
 Tort is redressible by an action for unliqudated damages
Generally, therefore a tort is a wrong or civil wrong which is redressible by an

action for unliqudated damages and which is other than a mere breach of
contract or a breach of trust, a person who commit a tort is known as tort-feasor
Kinds/ types of tort
1. Actionable per se
2. Actionable per se on proof of damage
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Actionable per se
This is when the defendant he/ she does any act will be liable, in either of those
cases does not support any loss or harm or injury or damage “actionable in
themselves” example trespass to land. In tort not only actionable per se, the
plaintiff will succeed only if can be proved that the defendant has violated a legal
right and that thereby the plaintiff has suffer damage or loss or injury or harm
Actionable per se on proof of damages
In such case the defendant is liable only for an act done which resulted to injury,
damage or harm example defamation either libel which means permanent or
printed or slander means temporary forms
Elements of tort
1. There must be a breach of duty or commission of an act- this is where a

person commit of an act or omission or breach of legal duty which is
against the law
2. The wrongful act/ omission must result in legal damages- means that the
violation or infringement of legal right of a person must result to legal
damages. Now legal damages can be explained into two Latin maxims
which are injuria sine damno and damnum sine injuria.
Injuria sine damno its mean the infringement of any legal right without
any damage, the most common example are tort that are actionable such
as trespass to land and libel, in either of this case no loss need be alleged or
proved,. In the case of ASHYBY VS WHITE {1073} L.E.R 417 in this case the
plaintiff qualified voter at the parliamentary election to the parliament. The
defendant was the officer where the plaintiff goes to poling and vote hence
he stop putting his vote. The court held “the suit which was file was
actionable, the defendant is liable to compensate the plaintiff which was
suffered by the plaintiff” so the court gives the following principle that any
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person has the right he/ she must maintain that right and if that right are
infringed or violated, then the plaintiff must be compensated and thus
must be legally remedy another case is the case of BHIM SINGH VS STATE
OF JAMMUS AND KASHMIR in this case the plaintiff was the member of
the legislative assembly, one day was stopped by the police officer
maliciously to attending the session of the legislation assembly which was
to meet on 11th sep 1985, on august 17 th 1985 the opening of the budget
session of the legislative assembly. His wife file a suit because her husband
right was right was infringed right to attend the legislative opening budget
assembly. Hence the defendant must be liable for a plaintiffs damaged due
to violation of his constitutional right. Then the court held that “the victim
must be awarded suitable monetary compensation by the state of
jammus and Kashmir to pay the plaintiff”
The last case is the case of CONSTANTINE VS IMPERICAL LONDON HOTEL
in this case the plaintiff was a famous cricketer player, before he came his
man booked a room through a telephone for him and his family. When he
come at London in the particular hotel, the worker refuses to give him a
room rather he can be given another room in anther hotel, he refuse to go
simply because the hotel had breach the contract which is implied contract.
Constantine file the suit before the court of law and claimed that hotel
have breached the implied term deriving from common law principle that,
innkeeper must not refuse accommodation to guest without a just cause.
So in this case the plaintiff the plaintiff right was violated/ infringe no mater
matter what he did not suffer/ damage. Justice Bireket held that “right is a
Constantine has been violated. It was accepted that an innkeeper had a
duty to provide reasonable accommodation and rejected that when the
hotel offered to put Constantine at another hotel this was fulfilling that
duty” further more even though no pecuniary damage transpired the
violation of the right still the principle of capable of the conferring a
remedy.
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Damnum sine injuria this maxim means damage without infringement of
any legal right. By damnum is meant damage in the substance sense of
money, loss of comfortable service, health or the like. Where one person
suffers damage as a result of unlawful act or omission of another an action I
tort for that damage arises. Thus unless there has been violation of legal
right, there can be no action under the law of tort in the case of
GLOUCESTER GRAMMAR SCHOOL CASE in this case the plaintiff he was
running a school he used to change a certain fee for every child as a fee
every month 40 pence. The defendant lowers the fee before the plaintiff
has reduced the school fee from 40 to 13 pence. So the plaintiff file the
case, hence house of lords held that “the defendant is not liable for any
compensation for plaintiff and therefore there is no actionable whether
maintainable” so the principle in this case is that the court of appeal say
that “every person got right to carry on his own and professional in
having business competition and this is due to suffer any injury, then the
plaintiff didn’t entitle to recover any loss”
Another case is BRADFORD CORPORATION VS PICKLES in this case pickles
with to inducing Bradford Corporation to buy his land at a high price, sank a
whaft on his land which interfered with the water flowing in undefined
channels into the corporation reservoir. The corporation applied for an
injunction t restrains pickles from collecting the underground water. The
court held that “an injunction would not lie, a pickle was entitling as owner
to draw from his land the underground water. The plaintiff suit doesn’t
action ability because no any infringement of right dispute the plaintiff
suffered damages” the principle underline in this case, house of lords said
“every person has got right to exercise his own legal right, all that legal
right may be motive and if anyone suffered injury or loss may not liable”
3. The wrongful act must be of such a nature having to give rise to a legal
remedy “ubi jus ibi remedy”
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Relevance in tort
There are two relevancy in tort namely malice and motive
Malice is used in two quite different sense in tort ONE is in it ordinary sense it
means ill-will,spite,hatred such malice is called malice express or actual malice or
malice in fact SECOND is malice in law ,means a wrongful act done intentionally
without just cause or excuse. Bad will or intention is malice
Two forms of malice
I. Malice in fact; is unknown as express malice, it is doing of an act with ill-

will of an individual, it is defense motive in tort refer to Bradford
corporation case
II. Malice In law; it is also known as implied malice which means wrongful act
done intentionally without any probable cause, excuse or justification
Motive simply means something which is inside or stimulates a person to do an

act, it is irrelevant in tort. Motive and malice are irrelevant in tort and every
general principle has got an exception and such exceptions are in case concern
tort of conspiracy, malice prosecution, and tort of defamation
THE NATURE OF TORT
It can be very important if we understand the definition of tort and crime, tort
and breach of contract, tort and breach of trust as well as tort and quasi contract.
TORT AND CRIME; - tort is a harm to injury whereas crime is a harm to the
society. It can be looked upon from the starting point where start. The wrongfully
act which both can be cause tort are called “felonious tort” example assault “civil
wrong and public wrong, defamation conspiracy, negligence and nuisance”
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Distinction
1. In tort the injured party is called the plaintiff who is the one who
institute the suit against the tort-feasor “defendant” WHILE crime it is
the state institute the case “republic” against the wrong doer “accused”
2. Infringement in tort is the private right belonging to an individual
WHILE in crime is a breach and violation of a public right and duty which
may affect the whole community
3. In tort the object of proceeding is compensation or reparation to the
plaintiff for the loss or injury caused by the tort-feasor example
damages WHILE in crime the object of the proceeding is to punish the
wrongdoer. Thus generally the suffer is not compensated
4. In case of tort we can get remedy civil court WHILE in case of crime it is
the subject matter of criminal court
5. In case of tort the damages is unliqudated WHILE in crime the accused
gets punishment under the penal code
6. In tort case parties can withdraw the case under their mutual consent
WHILE in criminal they cannot withdraw the case
7. In tort there is limitation WHILE in criminal cases there is no limitation
8. Mens rea has no place in tort WHILE in criminal generally will not be
punished unless there is a mens rea
9. In tort the burden of proof lies upon the plaintiff WHILE in criminal case
burden of proof rise upon on public
10.Tort is of recent origin in Tanzania WHILE criminal is of long time in
Tanzania
Tort and breach of contract
Tort is an infringement of right in reum of a private right of individual where

remedies are available WHILE contract is consent of two parties which can be
implemented by law
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1. As to consent in tort there is no consent WHILE in contract consent of
the parties are important
2. As the nature of duty in tort the duty is one impose by the law and owed
by the whole community at large WHILE in case of contract the duty is
fixed by the parties and is owed to a definite person
3. In tort common laws principle are applicable WHILE in contract the
contract act cap 345 is applicable
4. In action for tort damages are always unliqudated the amount payable
is not specific but the court is at liberty to award it at its discretion
WHILE in breach of contract the amount may be liquidated the amount
payable is specific
5. Tort is the violation of reum WHILE in breach of contract it is the
violation of right in personem
6. In tort motive is often taken to an account WHILE in contract motive is
not relevant
7. The law relating to tort is judge made law and not qualify WHILE in
contract the law is qualify
8. In tort the third party can sue WHILE in contract third party cannot sue
In the case of Klaus Mittelbachert Vs East India hotel ltd. Air [1997] in this case
there was a contract between Lufthansa, a German Airline and hotel Oberon
intercontinental of Delhi for the stay of the crew of Lufthansa as gust in the hotel.
The plaintiff Klaus Mittelbachert, a co-pilot in Lufthansa stayed in the hotel for
few days. During his stay, as the plaintiff took a dive in a swimming pool in the
hotel, due to some defective designed of the swimming pool, his head hit the
bottom of the pool and he received serious head injuries. As the consequences of
that he was paralyzed and remained in agony for almost 13 years before he died.
In action for damages by the plaintiff, one of the defences pleaded was that he
was the stranger to contract as the contract of stay was made between his
employer meaning the Lufthansa and the hotel. The plea was rejected. It was held
that he could sue under law of contract as beneficiary of the contract. Moreover,
for an action under law of torts, for compensation the plea of stranger to contract
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was irrelevant. Due to hazardous nature of the premises, the rule of absolute
liability was applied and the defendants were required to pay exemplary damages
Tort and breach of trust
Tort is the infringement of the private right to an individual while a breach of trust
is simply means failure to maintain trust property for the benefit of the
beneficiary; it is the branch of the law of property
Under it a person called trustee hold property in his name for the use and benefit
of another person called beneficiary
1. In tort damages are unliquidated WHILE trust damages are liquidated

because the party knows each other
2. In the law of tort it originated from the common law court WHILE in
trust the law relating to property originated from the house of equity or
court of chancery
3. Tort is the violation of right in reum WHILE trust is the violation of
persona
4. In tort common law principle are applicable WHILE in trust the law of
contract cap 345 is applicable
5. In tort the duty upon the parties Is fixed by the law WHILE in trust the
duty are fixed by the parties
6. In tort the plaintiff and the defendant they are not known to each other
before the arising of liability WHILE in trust the plaintiff and the
defendant are known to each other from the beginning
Tort and the quasi contract
Tort is the infringement of private right to the individual where remedies are
available WHILE quasi contract cover situation where a person is held liable to
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another without any agreement for money or benefit received by him to which
the other person is better entitled
It is not basically contract entered by parties intentionally, it is resembling and it is

based on the principle of equity of equity, a person shall o enrich himself from the
other person in just
1. In tort is not any kind of contract WHILE quasi contract is a hypothetical

contract implied by law
2. In tortuous liability there may not be to any subject of the benefit
WHILE in the matter of quasi contractual liability a person must get
unjust benefit which belongs to another person
3. In tort there must be violation of right in rem WHILE quasi contract is
violation of right in persona
4. In case of damages in tort it is unliqudated WHILE in quasi contract the
damages is liquidated
5. In tort plaintiff and defendant are not known to each other WHILE in
quasi contract plaintiff and defendant known to each other
Doctrine of strict liability
Generally a person is made liable for a tort where he committed nothing in his
part but when it is committed by another person
The doctrine of Strictly liability was coin in the case of Ryland’s VS Fletcher [1868]
in this case the defendant was liable even though there was no negligence, the
rule in this case, the defendant he was having a mill in his land because he
wanted the reservoir as he could use the water, so he contacted the engineer to
build the reservoir on his land. The independent contractor when he begun he
found oil shaft beneath the land and decided to close it with some mad and
continue to drill. Three issue were raised in this case which were;-
 Whether there is was any negligence in part of the defendant
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 Whether an employer employs contractor to do the work so can employer
be liable
 Whether the defendant can be made liable
So the rule of strict liability lay that the defendant must be made liable even
without any negligence, the principle of this case is that any person bring
anything and keeps on his own land for his own purpose he has to keep it under
his own and if it escape and cause damage to any person then should be liable
ELEMENT OF STRICT LIABILITY
There are three essential elements can be raised in defense of strictly liability
under tort law;-
1) Dangerous thing there must have been brought by a person and keep on
his land. This means that the plaintiff in order to be successful he/ she must
or has to prove the thing that may bring danger and cause any mischief or
escape. It includes not doing that but also the liquid forms and solid. The
dangerous cannot be determined by the substance because of its innocent
in itself and that things escape
2) Escape must be out of control, this means that the plaintiff in order to
succeed in strict liability he/ she has to show that the thing brought by the
defendant it actually escape and cause injury to plaintiff. If the thing
brought by the defendant and escape from his area the case of Read Vs
Lions co.ltd in this case the plaintiff was employed by the defendant in their
ammunition factory. While she was performing her duty inside the
defendant premises, a shell, which was being manufactured there,
exploded whereby she was injured. There was no evidence of negligence on
the part of the defendant. Even though the shell which had exploded was
dangerous thing. It was held that the defendant was not liable because
there was no escape of the thing outside the defendant premises and,
therefore the rule in Ryland’s Vs Fletcher did not applied.********
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3) Non – natural use of land
This means here by the term is big and very confuse and has two terms;-
a) It may be used as a thing exist by of which on nature by artificial
b) In second terms means that, it is natural although it function include
artificial things NB Ryland’s Vs Fletcher “the purpose was to use the
mill I his land, but was not natural use of land”
Defense of strictly liability
1) Plaintiff own default;- this is was very well elaborated in the case of
Ponting Vs Noakes, in this vase the plaintiff horsed intruded into the
defendant land and died after having a nibbled the leaves of the poisonous
tree there, the defendant was not held liable because damages could not
have occurred but for the horses own intrusion to the defendant land. The
rule in Ryland’s Vs Fletcher was not applied to the case and also another
reason was that here was no escape. Charles. J said “I do not see that they
can be liable responsible for the eating of these yew tree leaves by an
animal which in order to reach them, had to come to his land. The hurt
that the animal receives was due to his wrongful intrusion. He had no
right to be there and the owner therefore has no right to compensate”
2) Act of God;- something that you cannot be foresee by any of mankind,
example earthquake and can’t be prevented, sometimes act of God is
known as in maxim word “vis major”. In the case of Nichols Vs Marsland, in
this case the defendant diverted a natural stream on his land to create
ornamental (artificial) lake. The year then there was an extraordinary
rainfall, heaviest in the human memory, by which the streams and the lake
swelled so much that the embankments constructed for the artificial lakes,
which was sufficiently strong for an ordinary rainfall gave away and the
rush of water down the stream washed away the plaintiffs four bridges .
the plaintiff brought an action to recover the damage of the same. There
was found no negligence on the part of the defendant. It was held that the
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defendants were not liable under the rule in Ryland’s Vs Flecther because
the accident in this case had been caused by an act of God.
3) Consent from the plaintiff; - it is also known under the maxim of volenti
non fit injuria, the rule of Ryland’s case will not apply if the plaintiff have
given the consent for the benefit. Where the plaintiff consent is implied
where the source of danger is for the “common benefit” of both the
plaintiff and the defendant. In the case of Carstair Vs taylor in this case the
plaintiff hired ground floor of a building from the defendant. The upper
floor of a building by the defendant himself. Water stored on the upper
floor leaked without any negligence on the part of the defendant and
injured the plaintiff goods on the ground floor. As the water have been
stored for the benefit of the both plaintiff and the defendant, the
defendant was not held liable.
4) Act of the third party or act of a stranger; - if the harm has benn caused
due to the act of a stranger, who is neither the defendant servant nor the
defendant has any control over him, the defendant will not be liable under
this rule . In the case of Richard Vs Lothian, in this case the plaintiff runs a
business from the second floor of a building. The defendant owned the
building and leased different part to other business tenant. Some stranger
blocked the waste pipe of wash basin, which was otherwise controlled by
the defendant lavatory on the fourth floor and turned on all the taps in
order to cause a flood. This damaged the plaintiff stock and the plaintiff
brought an action based on the principle set out in Ryland’s case. It was
held that the defendant were not liable, the act which was caused damage
was wrongfully done by the third party and there was no non natural use of
land
5) Statutory authority; - provision of the laws or allowed by the law or by
legislation to a person to do an action, if the defendant was doing his duty
he is not liable because he is on statutory provision. In the case of green Vs
Chelsea waterworks the defendant Co. had a statutory duty to maintain
continuous supply of water. A main belonging to the company burst
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without any negligence on its part, as a consequence of which the plaintiffs
premises were flooded with water. It was held that the company was not
held liable as the company was engaged in performing a statutory.
FOUNDATION OF TORTUOUS LIABILITY
Whether the law of tort or the law of torts, we have to answer and therefore
there are two theories discussed this issue whether it is the law of tort or the law
of torts
First theory – whether it is the law of tort, this was propounded by sir. Frederick
Pollock in 1887 and it was supported by Prof P. H, Winfield in his article of
Colombia law review 1927 he was on the view that all upon which a person
suffered to or injured because of the wrongful act done by the another person are
not tort unless there is some legally recognized by the law. This enables the court
to create new tort. This said that it give rights of neighborhood to develop other
tort
Winfield school of thought stream from the idea that all injuries done to another
person in tort, unless there is some justification recognized by law. However that
wide principle was narrowed down by Sir Fredrick Pollock who argue that only
nullful harm is tortuous
Generally the school based its argument on the dictum by lord Justice Bowen in
the case of kinner E. CO. Vs Shew where he said “ it common law there was a
cause of action whenever one person did damage to another willfully and
intentionally and without just cause”
In other word in order to get a remedy the plaintiff must establish there be a legal
right before the defendant malice but it must be shown that such defendant act is
legally wrongfully
 2ndtheory-whether it is the law of torts, this was supported by prof salmond

and he is of the view that: “there are definite and specified number of
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tortuous liability” this means that every wrongfully action done must be
within the specified number of tort which a person should be held liable for
or else no one can be liable responsible for torts not named
Salmond theory is also known as the PEGION HOLES THEORY. According to

him there is in general principle of liability and if plaintiff can place his wrong in
any one of the pigeon hole, each containing a liable torts, he will succeed. If there
is no pigeon hole in which the plaintiff case could fit in, the defended has
committed no tort.
According to Salmond “just as a criminal law consist of a body of rules

establishing specific offence, so the law if torts consist of a body of rules
establishing specific injuries”
ANALYSIS FROM THE THEORIES
From the theories above, both of them happen to be far from reality because they
both have different value. The first theory provide a remedy for every injured
person whose right has been infringed and the second theory denies a remedy for
an injured person
Therefore each theories is correct depending on its point of view
DEVELOPMENT OF LAW OF TORT IN TANZANIA
There are challenges which facing Tanzania for the development of law of tort, and
the following are the reason:-
1. Lack of activism on the part of people, in advance countries people

approach the court for even small matter but it is not the case in Tanzania
*Corruption on the part of judiciary, lacks of the lecture review as much as
knowledge on the difference between civil wrong and tort
*Religious belief that is God, the judge and not the human being or courts
2. Lack of activism on the part of legislature: the time and expenses used
during the codification of law of tort in Tanzania is very long and high,
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whereas is developed countries the time and expenses in very cheap. The
crown civil act, civil disabled act of England enable people to proclaim their
rights personally different with Tanzania
3. Lack of activism in judiciary: in advanced countries the judiciary has a
supreme role to develop new rule and theories. This is done by filling in the
lacuna in law, the case is not applied in Tanzania where executive dominate.
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SECOND TOPIC
(General defenses or exception)
JUSTIFICATION OR DEFENCES IN TORT
When the plaintiff brings an action against the defendant for a particular tort,
providing the existence of all the essential of tort, the defendant would be liable for
the same. The defendant may, however, even in such a case avoid his liability by
taking plea of some defence. There are some specific defence, which are peculiar
to some particular wrongs, the general defence discussed in this topic are as
follows;-
 Volenti non fit injuria

 Plaintiff the wrong doer
 Inevitable accident
 Act of God
 Private defence
 Mistake
 Necessity
 Statutory Authority
1. VOLENTI NON FIT INJURIA: It is a new a new principle that “no action
for a tort can rise where a person has voluntary consent to suffer the harm”
damages suffered by consent has no cause of action. Consent has two types
namely the express consent and implied consent. Whereby the express
consent is when consent without written statement but entered by way of
conduct and its result are known
In the case of HALL VS BROOKLANDS Auto Racing club in this case the
plaintiff was a spectator at a motorcar race being held at brook lands on a
track owned by the defendant company. During the race, there was a
collision between two cars one of which was thrown among the spectators,
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thereby injuring the plaintiff it was held that the plaintiff impliedly took the
risk of such injury, the danger being inherent in the spot which any spectator
could foresee. Therefore the defendant could not be liable because the
plaintiff consented voluntary by going to watch the race Express consent this
is sometimes stated in many word
WOOLDRIGE VS SUMNER in this case the plaintiff was a photographer
thus he attended a horse race while he was taking some pictures he went so
close to the racing track when he had a thunder made by a horse and got an
injury. He filed the suit against the defendant. The court held that the
defendant could not be liable because the plaintiff he was consented himself
to be in the race field
Condition in order one to plea the defense of violent no fit injuria
1) The consent must be free

2) It must not be unlawful or illegal act
Exception to the maxim of violent non fit injuria
I. Rescue case
The rescue cases form an exception to the application of the doctrine of
volenti non fit injuria. When the plaintiff voluntary encounter a risk to
rescue somebody from an imminent danger created by the wrongful act of
the defendant, he cannot use the defense of volenti non fit njuria . in the case
of Haynes vs. Harwood in this case the defendant servant left a two horse
van unattended in a street. A boy threw a stone on the horse and they bolted
causing grave danger to women and children on the road, a police constable
who was on duty nearby a police station, on seeing the same, manage to stop
the horse but in doing so he suffers serious injuries and he file a suit, it was
held that the defendant were liable and the defense of violent non fit injuria
was not accepted due to the rule said that ” the doctrine of assumption of
risk does not apply where the plaintiff who is under exigency cause by the
defendant wrongly misconduct, consciously and deliberately face a risk,
even of death to rescue the another fro imminent danger of personal injury
or danger, whether the person endanger is one to whom he owes a duty of
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protection as a member of his family or is mere a stranger to whom he owes
no such duty”
However a person is injured in an attempt to stop a horse which create no
danger will be without remedy principle “the rescue is entitled to claim
for compensation when there is danger if no negligence it is a risk”
The case of Wagner vs. international railways in this case the was a
passenger who was thrown out of a running a railway due to the negligence
of the company railway, when the train stopped his companion got down and
went to rescue his missed friend. There was darkness the rescuer missed his
footing and fell down from the bridge resulting in injury he brought an
action before the court of law. The court held that the railway company was
liable due to the fact that it being a case of rescue and therefore the plaintiff
was entitle for damages or compensation
In the case of Baker vs. T. E. Hopkins and sons in this case due to
employer negligence a well as filled poisonous times of petrol driven pump
and two of his worker men were overcome by the fumes. Dr Baker was
called but he was told not to enter the well in view of an attempt to help the
worker men already inside the well. He tied a rope around himself and went
inside while two men held the rope at the top. Dr Backer himself was
overcoming by defendant, he was pulled from the well and taken to the
hospital. The doctor’s widow sued the workmen’s employers to claim
compensation for her husband death. The court held that, the act of the
rescuer was natural and probable cause consequence of the defendant
wrongful act which the latter could foreseen and therefore the defense of
violent non fit injuria was available hence the defendant were thus held
liable
II. Negligence
For the defense to be available, it is further necessary that the act must be
given, thus if while playing a hockey I am injured while the game was
played lawfully, I can’t claim anything from any other player because, I
deem to have consented to the incident of the game I have to gone to played,
in case another player negligently or deliberately hits me with a stick I can
defiantly make him liable and he can’t plea violent non fit injuria, because I
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never consented to an injury being caused in that manner. When the plaintiff
consented and takes some risk, the presumption is that the defendant will not
be liable in the case of Slater vs. clay cross in this case the plaintiff was
strict and injured by a train driver, the defendant was walking along the
narrow tunnel on a railway truck which was owed and occupied by the
defendant. The company knows that the tunnel was used by the member of
the public and has instructed his driver to whistle and slow down when
entering the tunnel. The accident had occurred because of the driver
negligence by not observing those instructions. The court held that the
defendant were liable due to the fact that the lady was walking in the tunnel,
although it was said that she voluntary took the risk of dander from running
of the railway in the ordinance and accustomed way never the less she did
not take the risk of negligence by the driver. Her knowledge of the danger
was a factor in contributory negligence but it is not a bar to the action – lord
denning
2. ACT OF GOD
Is an act that is independent from human act as much as cannot be foreseen, also
if foreseen cannot be prevented by human skills, it is based in the Latin maxim
“actus deineim facit injuria” which means that the law hold no man responsible
for the act of God
Two important elements needed for this defend to be applied

i. It must be the result of natural force
ii. The occurrence must be extraordinary and not which could be
anticipated and reasonably guided against
Working of natural forces in the case of Ramalinga nadir vs. Narayana Reddiar
in this case it was held that the criminal activities of the unruly mob, which
robbed the goods transport in the defendant’s lorry, cannot be considered as an
act of God and the defendant is liable for the loss of those goods as a common
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carrier. Also in the case of Nichols vs. marshland in this case the defendant was
successfully pleaded, there the defendant created the artificial lake on his land by
using some natural stream. Once there was an extraordinary heavy rainfall,
stated to be heaviest in human memory as a result of which the embanking of the
lake swept away. The rush water rush away four bridges belonging to the plaintiff
it was held that the defendant was not liable as the loss had occurred due to act
of God
Occurrence must be extraordinary;- in the case of Kallulal vs. Hemchand in this

case the plaintiff and the defendant were lived adjacent to each other, after the
construction of the building the next day happen to have a rainfall of 2.66 inches
as a result a wall of the defendant house fell down and injured the children and
even more two children died, the defendant rose the act of God as his defense, it
was held that the defense of act of God cannot be used because as that much of
rainfall during the rainy season was not something extraordinary but only such as
ought to have been anticipated and guarded against. The appellant was,
therefore, held liable.
 The rainfall was ordinary

 The wall was weak
 And there was negligence in building it
The fore the defendant was held liable
3. INEVITABLE ACCIDENT
There action which can’t be prevented despite the initiative taken. An accident
means an expected injury and if the same could not have been foreseen and
avoided. In the case of Stanley Vs. Powell, in this case plaintiff and defendant
were member of the shooting club, so they went in the bush to shoot, the
defendant fired at a bird and the shot heat the tree and at last injured the plaintiff
it was held that the injury was accidental and therefore the defendant was not
liable because he intended to shoot the bird and not the plaintiff
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Also in the case of Holmes vs. Mather in this case the defendant horse were
being driven by his servant on public high way. The horse were so startled by the
baking of a dog that became unmanageable and in spite of the best care by the
defendant servant to control them, they knocked down the plaintiff it was held
that the defendant was not liable
Also in the case of brown vs. Kendall in this case the plaintiff and defendant dogs
were fighting, while the defendant was trying to separate them, he accidentally
hit the plaintiff in his eyes who was standing nearby. The injury to the plaintiff was
held to be the result of pure accident for which no action could lie
Lastly in the case of Fardon vs. Harcourt Livingston the defendant was travelling
in his car with a dog inside, once he parked he left the dog inside the car and locks
the door and the window. As it sees the people outside he started barking at the
window and break the window and small piece of the glass hit the plaintiff and
injured him. It was held in the house of lord said that the defendant cannot be
liable because the necessary measures to prevent it from causing the harm
4. Necessity
If a person commits an act intentionally with necessity obligation without any

negligence then one can be exempted. In the case of carter vs. Thomas in this
case the defendant who entered into plaintiff premises in good faith to extinguish
fire at which the fireman had already had been working so the court held that it
was trespass and thus the defendant was liable. Also in the case of Kirk Vs
Gregory in this case after A’s death, A’s sister in law removed some jewellery
form the room where he lay dead to another room, thinking that to be a safer
place. From there, the jewellery was stolen. In action by A’s executor against A’
sister in law for trespass to the jewellery, it was held that since the interference
was not reasonably necessary, she was liable
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5. Statutory authority
The damage that results from an act which the legislature authorized or directs to
be done is not actionable even though it would otherwise be a tort. There are two
kinds of statutory authority which are;-
 Absolute authority;- where some power which are given by the legislature
irrespective of the injury which may occur to the people
 Conditional authority;- is when a statute permit the doing of a thing and a
thing must not be inconformity with the right of individual
In the case of metropolitan asylum district vs. hill, in this case the appellant was
under statutory authority to set up a smaller chicken pox hospital. They erected
such hospital in a residential area and the same created the danger of infection to
the resident thus file the suit to claim an injunction the court held that the
defendant was liable because it was established under conditional statutory
authority
6. Mistake
It is also provided under section 11 of the penal code cap 16. It is done under the
honest belief without knowledge that it may cause injury to another person’s
right or property. Mistake is of two types namely; - mistake of fact and mistake
of law, but they are not relevant in tort and in defense
Exception to the defense to be applied
 This evidence cannot be applicable where the element of malice is at

question, mistake cannot be taken as defense
 Malicious prosecution
 master and the servant (vicarious liability)
in the case of consolidated co. LTD vs. Curtis in this case an auctioneer who was
the defendant was asked to auction goods by his customer. Honestly believing
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that the goods belonged to the customer, he auctioned them and paid the sale
proceed to the customer. In fact the goods belong to some other person, in an
action by the true owner the auctioneer was held liable for the tort of conversion
Also in the case of MORRISON vs. RITCHIE AND CO. in this case the defendant
established on the news paper that the plaintiff had given birth to two twins while
she was only married two month ago and the defendant when published he
believe that the newspaper could be read by the plaintiff. It was held that
defendant could be liable although he made under mistaken believe e.g. mistake
of fact
7. private defense
is also one of the defense that the defendant may raise during the trial, self
defense is the act of a person to defense himself or defending another person and
also defending his property. The key issue when someone is applying the defense
of self defense is that the use of reasonable force which is very important to be
determined.
In the case of BIRD VS HOLBROOK in this case the defendant has a rose of garden
and always roses were being stolen, thus he setup spring guns to the rose garden
without fixing any notice about the same. Here the plaintiff fowl jumped into the
rose garden and a young boy following his bird and the spring gun was caused
him injury it was held that defendant was held liable because the force used was
excessive the occasion demanded.
Private defense is of two kind which are;-
i. private defense of a person
This is only available to person himself and people close to him; this principle is
extended to the killing of another person animal
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ii. private defense of property
This is established with due respect of one’s property and majority on trespass
against ones property
NB private defense is a good defense under the criminal and law of tort, here one
can defend himself because the law enable him to defend himself using the
available means when protecting himself and the property
The force used for private defense must be proportionate or the defendant will
held liable. The right of private defense can only be available in the law of tort
when it is used with reasonable and proportionate force in exercising or
defending himself
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TOPIC THREE;
THE TORT OF NEGLIGENCE
This is an infliction of harm or injury to a person due to ones failure to be careful.

Negligence is a breach of legal duty which result into causing injury or damage as
according to Prof Winfield.
Negligence is considering two in one tort, that is to mean;
 as an independent tort
 as a mode of committing other tort
It is independent because the plaintiff can sue for negligence itself as a major suit
and also the plaintiff can use negligence to prove some other tort such as
defamation or trespass
As an independent tort started in early and this was established in the case Blyth
Vs Birmingham Water Company where Prof Winfield defines as breach of legal
duty to take case resulted to the damage which is undesired by the defendant to
the plaintiff
In modern day the tort of negligence has two meaning;
 indicate the state of mind of a person when doing the act

 indicate the conduct of a person
These two elements are considered different and further rise to two competing
theories.
1st subjective theory
According to subjective theory negligence is caused by the state of mind,

proposed by salmon supported by Winfield “all act of a person are under the
control of his mind”
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The court should take the indifference state of mind (mental of mind) when doing
an act for all negligent criminal act done by a person
2nd objective theory
Negligence is caused not by the state of mind of a person but the act of a person.
This is supported by the Clark and Lindsey and Anderson
The court must punish the wrongdoer in criminal and tort basing upon his
conduct and quantum of damage and not state of mind, the state of mind of
person cannot be seen by the court
This theory is the one is taken by the law of tort despite the fact that each has
some element of truth depending on its context
Essential element of negligence
 the defendant owes the duty of care to the plaintiff

 the defendant has breach the duty of care
 due to that breach plaintiff suffered damages/injury
DUTY OF CARE
This means a legal duty rather than a mere moral religious or society duty. The
plaintiff has to establish that the defendant owed to him a specific legal duty to
take care of which he has made a breach. There is no general rule of law defining
such duty, as it depends in each case whether a duty exist.
In the case of Donoghue Vs Stevenson Lord Atkins propounded the following rule
and the same has gain the acceptance “you must take reasonable care to avoid
act or omission which you can reasonably foresee would be likely to injure your
neighbor”
Who is your neighbor? .lord artkin he then defines the principle of neighbor as
“person so closely and directed affected by my act that I ought reasonable to
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have them in contemplation as being do affected when I am directing my mind
to the act or omission which called in question”
In Doughue vs. Stevenson, a purchased bottle of ginger beer from a retailer for
the appellant a lady friend, some of the content was poured in tumbler and she
consumed the same. When the remaining content of the bottle was poured into
her tumbler, the decomposed body of snail floated out in her ginger beer. The
appellant alleged that she has serious suffered in her health in consequence of
having drunk opaque glass and closed with a natal cap so that the content could
not have been seen, so she sue the manufacturer for damages.
One of the defenses pleaded by the defendant was that he did not owe any duty
of care toward the plaintiff and the house of lord held that “the manufacturer
owed her a duty to take care that the bottle did not contain any noxious matter
and that he would be liable on the breach of the duty”
According to lord artkin “a manufacturer of product which he seal in such a form

as to show that he intended to reach the ultimate consumer in the form in which
they left him with no reasonable or possibility of intermediate examination and
with the knowledge that the absence of reasonable care in the preparation or
putting up of the product will result in an injury to the consumer life or property,
owes a duty to the consumer to take that reasonable care”
Second defense pleaded by the defendant was that the plaintiff was a stranger to
the contract and her action was therefore not maintainable
Principle under line in this case is that lord artkin say “you must have to take a
reasonable duty of care to avoid acts or omission which you can reasonable
foresee would be likely to injure your neighbor”
Grant Vs Australian Knitting Mills in this case the plaintiff brought two
underwear’s from the defendant manufacturer after a while the plaintiff put on
the underwear and contracted skin disease because the manufacturer used
sulphate chemical which was not removed
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Held the manufacture was held liable even though there was no direct
relationship between the consumer and the manufacturer
Case of Andrew Vs Hopkinson in this case the defendant sold his car to an
insurance company and the company transferred to the plaintiff on a higher
purchase bases, due to the defectiveness of the car was not recognized by the
defendant and the plaintiff brought an action
Held the defendant could held liable because had fail to examine the car and fail
to alert the plaintiff
Brown Vs cotterill in this case the plaintiff was children accompanied her mother
to graveyard to amange flower on the grandmother graveyard and the tombstone
next to their ell and caused injury to the child, the tomb fell due to negligent
construction
Held the defendant was held liable because the tombstone was negligently
elected and fell on that child hence donoghue rule applied
Watson Vs Barkery products Ltd this was the first the case applied the doctrine of
Donoghou Vs Stevenson. In this case the plaintiff had his hair dyed by the first
defendant at her hairdressing, establishment with a product which was
manufactured by the third defendant and distributed by the second defendant.
The product used consisted of the dye proper and a fixative lotion and she was
injured by the hair dye, she file a suit.
Held the second defendant was liable as he was a distributor he was in a clear
contact or direct relationship with the consumer as he was owed a duty of care
toward the plaintiff and he breached it
First defendant was not made liable because there was no negligence and the
third defendant cannot be made liable as he sold carboy only
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Duty of care in Tanzania has been recognized in the doctor and patient
relationship, seller and purchaser. In the case of TheOdoclina Alfaxad “minor” Vs
the medical officer of Mkinga Hospital (1992) TLR 235. In this case the plaintiff
was a student of primary school, one day while playing with her mate she fell and
broke her arms and she was taken to the hospital of Mkinga- Tabora after transfer
from the near dispensary. Where the first day the doctor give a pain killer. The x-
ray was taken in the second day where a P.O.P was wrapped around the arm and
lastly the arm was amputated due to negligence
Held the hospital must be liable due to the doctor information was not sufficient.
The doctor also fails to explain to the child fracture about the serious condition
In the case of Mwamini Adam Vs Urambo District Hospital (2007). In this case
mwamini sue the Urambo district hospital for 500million due to suffering mental
torture caused by the hospital, psychological and mental pain. The doctor left a
piece of cloth after the delivery operation which led to another operation which
caused the uterus to be removed
Held the doctor was held liable as he committed himself his professional
negligence and Adam was to be paid 20 million and the court order the hospital
on the Day of Judgment to pay the coast of the suits and five million to the
plaintiff husband. The maxim Res ipsa loquitor was applied here
Another case of B.A. Minga Vs mwanachi total service station (1972) in this case
the Mwananchi total service station “respondent” was a seller of fuel generally
and kerosene in particular. During that time there was a scarcity of fuel. Because
of the situation the seller used to mix the kerosene and diesel inor5der to
increase the quantity of fuel in the market. On the material day the appellant sent
his children to the fuel station to but kerosene. The kerosene bought by the
children was mixed with petrol. When the fuel was taken home it was funneled in
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the small lam, when fire was lit it explode burning a substantial part of the
appellant property
Held the seller has the duty take reasonable care and hence the defendant was
liable for breach of the duty of care
Palsagary Vs long island railway Co passenger was trying to board in a moving

train, two worker of the company were trying to get him in one pushing him. The
package which this passenger was carrying contained fire arm. When the package
fall down in the railway line and exploded. The plaintiffs stood 25 feet away and
got injured from this accident and file a suit
Held the defendant was held liable because he could have foresee the danger
Rural transport service Vs Bezlumubibi the conductor of the bus allowed the
passenger to travel on top of the bus because he had not enough space within it,
in course of driving the victim hit a tree branch as a result of which suffer serious
injury and died
Held the plaintiff deceased mother was entitled for compensation as there was
negligence on the part of the driver and conductor but the victim also contributed
negligence of himself
Brooker Vs wenborn the defendant get in the train which was about to move, the
window door opened outside and create danger to the people standing out. The
plaintiff was then injured by the door as he was standing on the platform
Held in this case the defendant should be held liable and not the company
because he had a duty of cares to see that the doors could be closed
Bairhill Vs young in this case the plaintiff was official woman, one day she was
taken by the car toward other side, she had collusion on the other side of road.
The collusion was between young with bike and a collide with a motor bike. The
plaintiff didn’t see the dead body or the accident, but the plaintiff went the other
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side she saw a blood in the tarmac of young due to the accident. One month later
she give birth to the dead child. Plaintiff sue against the executor of young
contenting that because of the incident she suffer a shock
Held; the executor of young were not held liable because young could not have
foresee this injury,
Bolton Vs stone the defendant were the committee and the members of the
cricket club. A baseman hit the ball and the ball went over the fence seven feet
high and seventeen feet above the cricket pitch and injured the plaintiff on the
adjourning high way. The cricket from which the ball was hit about 78 yard from
the offence and 100 yard away from the plaintiff. The ground had been used for
90 years and during the last 30 years the ball had been hit the high way an about
six occasion but no one had been injured
Held the court of appeal held that the defendant were not liable for nuisance but
they were liable for negligence
The house of lord held that there were no liability even on the negligence basis,
the reason for the decision was that the chance of a person ever being struck
even in a long period of years was small and even likely risk created was
substantial
Negligence was recognized as an independent tort in the case of Blyth Vs

Birmingham water Co. a plug installed by the defendant which had worked
satisfactory for 25 years, was damage due to exceptionally severe frost in 1885 as
a result in which water escape and the plaintiff premises were flooded
Held that the defendant had provided against such frost as experience would
have led man acting prudently to provide against and they were not guilty of
negligence because they are precaution proved insufficient against the effect of
the entrance severity of the frost in 1885 which penetrated to a greater depth
than any which ordinary occurs south of the polar regions
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Breach of duty
Breach of duty means non-observance of due care which is required in a

particular situation
What is standard of care? There are two important point to determine necessary
standard of care requirement
i. the importance of the object to be attained

ii. the magnitude of the risk involved in the fact
The standard of care required is the standard is that of a reasonable man or of an

ordinary prudent man. If the defendant has acted like a reasonable prudent man
there is no negligence
As stated by Alderson B. in the case of Blyth Vs Birmingham water work Co

“negligence is the omission to do something which a reasonable man guided upon
those consideration which ordinary regulate the conduct of human affairs would
do or choosing something which a prudent and reasonable man would not do”
the case taken by a prudent man has always been the rule laid down
THE IMPORTANCE OF THE OBJECT TO BE ATTAINED OR UTILITY OF THE ACT
The law does not require greater possible care but the care required is that of the
reasonable man under certain circumstance. Case of latimar Vs A.E.C Ltd Co due
to an exceptionally heavy rainstorm the respondent factory was flooded with
water, some oil substance got mixed with water. After the water drained away, an
oil film remained on the surface of the floor and the floor surface became
slippery. Respondent spread all the available saw dust on the floor to get rid of
the oily film but some area remained uncover due to the lack of further supply of
sawdust. The appellant and who is the employee in the respondent factory
slipped and was injured. He sued the respondent for negligence and contended
that the respondent should have close down the factory as a precaution until the
danger had disappear
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Held the house of lord held that the risk created by a slippery floor was not so
great as to justify the precaution of closing down the factory with over four
thousand workmen. The respondent has acted like a prudent man and therefore
they were not liable for the negligence
THE MAGNITUDE OF RISK/GRAVITY OF RISK
The degree of care required varies according to each situation, what may be a
careful act in one situation may be negligence act in another. The law does not
demand the same amount of care under all situations.
In the case of Glasgow corporation Vs Taylor there was lack of due care
according to the circumstance of the case, in this case the poisonous berries were
grown in a public garden under the control of the corporation. The berries look
like cherries and thus had tempting appearance for the children. A child age seven
years ate those barriers and dies
Held it was found that the stub bearing the berries was neither properly fenced
nor a notice regarding the deadly character of the berries was displace, it was
therefore held the that the defendant were liable for negligence
Another case Haley Vs London electricity board in this case it speaks about the
extent of duty of care toward blind person, the plaintiff is a blind man walking
careful with a stick along a pavement of the defendant London suburb on his way
to walk the servant of the defendant London electricity board dug a trench long
handled harmer, there is a pursue long handled hammer, the head of the hammer
was two feet above the ground, the plaintiff tripped over the obstacle fell into the
trench and was injured. In the action for damage against the electricity board it
was found that there were 285 blind person register in that area. The hammer
gave adequate warning of trench to person with normal sight but it was
insufficient for blind person
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Held the house of lord held that since the city pavement was not a place where a
blind man could not be expected not providing sufficient protection for him was
negligence for which the defendant were held liable
Cates Vs Mongini Bros in this case the plaintiff, the lady visitor to a restaurant
was injured by the falling of the ceiling fan on her. The reason for the falling of the
fan was a latent defect in the metal of the suspension rod of the fan. The defect
could not have been discovered by a reasonable man. In action against the
defendant, who was running the restaurant, it was held that since the harm was
not foreseeable, they were not negligent and therefore, were not liable for the
loss the loss of the lady plaintiff.
Damages
Here the plaintiff should have support some damages in the case of breach of
care. The plaintiff has to show that the damage thus caused is not a remote a
consequence of the defendant negligence. In the case of Bolton Vs Stone in this
case the defendant was the committee and member of cricket club. A batsman hit
the ball and the ball went over a fence seven feet high and seventeen feet above
the cricket pitch and injured the plaintiff on the adjoining highway. The wicket
from which the ball was hit about 78 yard from the fence and 100 yard away from
the plaintiff. The ground had been used about 90 years and during the past 30
years the ball had been in the high way on about six occasion but no one had
been injured.
Held house of lord held that the defendant could not made liable on the basis of
negligence because of the fact and circumstance and it was too remote
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DEFENSE OF NEGLIGENCE
1. contributory negligence
in the Latin maxim “pari delicto polio rest condition defendentis”. Both plaintiff
and the defendant are contributors to the negligence act. Therefore both plaintiff
and defendant are equally and proportionally contributed to the negligence act.
Every person is required to take care of himself, contributory negligence it was

complete defense before but now it is none considered
Principle underlines “when both parties are equally to be blame then neither
plaintiff nor defendant can hold liable”. Underlined principle of pari delicto polio
rest condition defendentis
Rule was first laid down by Lord Ellen Borough in the case of Butterfield Vs
Forrester, whereby in this case the defendant wrongly obstructed a highway by
putting a pole across it. The plaintiff who was riding a bike violently in the twilling
on the road collided against the pole and was thrown from his bike and injured. If
the plaintiff had been reasonable careful he could have observed the pole from
the distance of 100 yard and avoided the accident
Held the house of lord held that the plaintiff has no cause of action as he himself
could have avoided the accident by exercising due care and therefore the
defendant could made liable because the plaintiff could foresee the injury
Principle underline in this case was that “one person being in a fault will not
dispense with another using ordinary care for himself” two things must occur to
support this, first an obstruction in the road by the fault of the defendant and
second no want of ordinary care to avoid it on the part of the plaintiff
Another case of Nance Vs British Colombia Electricity Co in this case the

deceased while he was trying to cross the road he slipped because of the ice and
fall in the road and the lorry come over him and killed him
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Held the defendant was not liable
Harries Vs Toronto Transit Commission, in this case the plaintiff was traveling
while putting his hand outside, the conductor of the bus told him to put his hand
inside the bus but he refuses. The car coming in the opposite direction hit the
elbow and his was injured, and he sue the defendants car
Held the court held that there were some sort of contributory negligence hence
the defendant was not held liable
To determine contributory negligence there are two rules to be determine
a) it must be shown that the plaintiff didn’t take care of himself and he also
contributed to his own injury
b) it should be shown that there was lack of care on the part of the plaintiff
contributed to his own damage
NB the defense of contributory negligence it is not applied to the case of

children negligence and marine context
This rule worked a great hardship particularly for the plaintiff because of the slight
negligence on his part, he may lose his action against a defendant whose
negligence may have been the main cause of damage to the plaintiff
Hence the court ratified the law relating to contributory negligence by introducing
the so called rule of LAST OPPORTUNITY RULE OR LAST CHANCE
Under the rule of last opportunity when two people are negligent that one of
them who had the latter opportunity of avoiding the accident by taking ordinary
care should be the one liable.
It means that if the defendant is negligent and the plaintiff having a letter
opportunity to avoid the consequence of the negligence of the defendant then his
does not observe ordinary care, he can’t make the defendant for that
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Similarly if the last opportunity rule to avoid the whole accident is within the
defendant he will be liable for the whole of the loss to the plaintiff.
Another case Davies Vs Mann, in this case the plaintiff fettered the fore- feet of
his donkey and left it in a narrow highway. The defendant was driving his wagon
to fast that it negligently ran over and killed the donkey
Held in spite of his own negligent the plaintiff was entitle to recover because the
defendant had the last opportunity to avoid the accident
British Colombia Electric Co Vs Loach the defendant was a tramway company use
to transport people from one place to another, the train with passenger reached
at the railway cross and want to speedy cross it, as the driver was act to cross, he
suddenly saw the train coming and he tried to apply breaks but break fails as the
result the train hit the tramway of which many passenger died and other suffer
injuries the plaintiff sue the company
Held the house of lord held that the defendant were liable as he had the duty of
care not to cross the railway speedy, he had to stop hence they cannot get the
rule of last opportunity as a defense
Criticism of the doctrine of last opportunity
Under this rule of last opportunity it was criticized because it makes one party to
be full liable and another side full exempted, and this why they came with
another doctrine known as the “doctrine of apportionment of damage”
Under this doctrine it comes up to cope with the hardship of the last opportunity
rule whereby, under this doctrine in the case of reduced the compensation of the
injured person and also it reduces the liability of the wrongdoer
According to section 1(i) of the reform act, the compensation is reduce by the
court to some extent and equitably between the plaintiff and the defendant but
basing on the contribution of the negligence
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In the case Lang Vs London transport in this case the driver of the motor cycle
contributed more to the commission of an act, thus the damaged was distributed
equitably between the motor cycle driver and the car driver basing on the share
of commission
DOCTRINE OF ALTERNATIVE DANGER
Under this doctrine the plaintiff is suppose to be careful in spite of the defendant
negligence, there may be certain circumstance when the plaintiff is justified in
taking some risk where some dangerous situation has been created by the
defendant in order to save himself
Jones Vs Boyce the plaintiff was the passenger in the defendant coach and the
coach was driven so negligently that the plaintiff was alarmed, with the view to
save him from the danger created by the defendant he jumped of the coach and
broke his leg. If the plaintiff has remained in the seat he could not have suffered
much harm because the coach was soon after stopped
Held the act of plaintiff is justifiable and reasonable, he was saving his life but
when he jumped and cause injury so he was entitled to recover the damages
Principle underline in this case lord Ellen borough said “to enable the plaintiff to
sustain the action, it is not necessary that he should have been thrown out of the
coach, it is sufficient if he was placed by the misconduct of the defendant in a such
situation as obliged him to adopt the alternative of dangerous leap or to remain
at certain peril, if the position was occasioned by the default of the defendant, the
action may be supported”
Sayers Vs Harlow Urban District council in this case the plaintiff had paid the fees
to enter a public toilet, after he entered the door automatically locked and the
loch was defective in so far there was no handle inside to open the door. For
about ten to fifteen minute she banged at the door and shouted to attract the
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attention or the person outside but no one come and then with the view of
finding a way to climb out she place one foot of the seat of the water closet and
the other on the toilet roll, from there she slipped and was injured
Held the defendant was liable as the injury to the plaintiff was a natural
consequence of the breach of their duty because the lock was defective even
though she knocked and shouted but nobody come
Composite negligence
Under this when the negligence of two or more person result in the same damage
there is said to be composite negligence and the person responsible for causing
such damage are known as “composite tortfeasors”
Classification of composite tortfeasor
a) Joint tort feasors;- in composite negligence the liability is joint severally,

the plaintiff h can bring the action against some of them or all of them. In
composite negligence no one can plead the defense of contributory
negligence
b) Independent tortfeasor;- the liability of composite negligence as tort feasor
is allowed to say that there should be apportionment and his liability
should be limited to the extend he is fault. The judgment against the
composite tortfeasor is for the single sum without any apportionment in
accordance with the fault of various to it. And the plaintiff can enforce the
whole of his claim against any of the one of the defendant if he so choose.
The defendant who has paid more than his share of the liability may claim
contribution from other defendants
Clay Vs Crump’s in this case the owner of the building wanted to demolish and
constructed a new building, but he approach an architectural and wanted one
pillar the architecture started to call the demolish the pillar, then the building
fallen down as whole.
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Held the site owner is not liable because he depend on architectural that is
professional in construction, hence he could update the building owner. So the
plaintiff was entitle for damages from three defendant
Comparative negligence
Under this the court will compare the plaintiff negligence against the defendant
negligence and reduce the damages accordingly. It is not allowed in the country
because it is consider as mitigation of much restricted e.g. Contributory
negligence
Kinds of comparative negligence
1) Pure comparative negligence
Here the plaintiff is entitled to recover for damages even his fault is up to 99%
2) Modified comparative negligence
50% and 51% baron, the plaintiff is entitled to recover if his liability is less than
the half of the defendant liability and the other he recover if liability is less or
equal to defendant liability. This is not applicable in Tanzania
2. Voluntary assumption of risks
It is another defense of negligence which means mere careless on part of the

defendant, does not entitle to plaintiff to sue him, it has to be proved that the
defendant owed a duty of care toward the plaintiff; the plaintiff can’t sue even if
he might have been injured by the defendant action
Bourhill Vs young Mr. young not bare a duty of care to the plaintiff nor he was
negligent toward her, therefore the court held that the defendant was not liable
because the motorcyclist did not owe any duty of care towards the fish wife and
he was not negligence toward her
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Hawes Vs hardwood in this case the defendant servant left two horse van un
attended n a street, a boy threw a stone on the horses and they bolted causing
danger to a women and children on the road. A police constable who are on the
duty inside a nearby police station on seeing the same, manage to stop the horse
but in doing so he himself suffered injury seriously personally
Three element of voluntary assumption
a) Knowledge of risk; voluntary is nothing else but volenti non fit injuria
b) Voluntary exposure to the risk, in the case of smith Vs Baker in this case the
plaintiff was a workmen employed by the defendant on working on drill for
the purpose of cutting a rock. By the help of crane stone were being
conveyed from one side to the other and each time when the stone were
conveyed the crane passed over the plaintiff head. While he was busy in his
work a stone fell from the crane and injured him. The employers were
negligent in not warning him at the moment of rescue danger, although the
plaintiff had been generally aware of the risk. Held it was held that by the
house of lords that as there was a mere knowledge of the risk without the
assumption of it, the maxim non fit injuria did nit apply and therefore the
defendant were liable
c) Assumption of the risk
3. Inevitable accident it happens outside the control of the defendant and no

amount of care and skill can prevent such situation from happening
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PROOF OF NEGLIGENCE
“Reps ispa loquitor”
As the general rule in all negligence cases is for the plaintiff to prove that the
defendant was negligence
There is s presumption of negligence according to the maxim reps ipsa loquitor

which means the thing speaks for itself. The accident must speak for itself, this
imposing liability to the defendant
Lord Shaw says something/incident speaks for itself direct evidence is not
necessary but inference can be made/drawn from the incidence of the case. The
circumstance and control should be under the defendant or his servant
Three elements for maxim to apply
a) It is necessary that the event causing the accident must have been in the
control and management of the defendant
b) Without the negligence of the defendant, the accident would have
occurred
c) The defendant failed to give proper explanation about the incident
Case of Bryne Vs Boadle (barrel of flour) in this case the plaintiff was going in a
public street when a barrel and flour fell upon him from the defendant ware
house window. Want of care to the part of the defendant was presumed and it
was for him to show that the same was not for want of care on his part, for the
barrel does not usually fallout from window unless there is want of care
Held Pollock C.B “the fact of its falling is prima facie evidence of negligence and
the plaintiff was injured by it, is not bound to show that it could not fall without
negligence”
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Case of Scott Vs London and Catherine Docks Co in this case the plaintiff was
injured after hit by six bags of sugar which fall from the defendant warehouse.
The issue was the defendant liable despite the plaintiff only being for inter
negligence
Held it is sufficient for the plaintiff to prove the defendant is in control of the
situation i.e. (had caused the injury” the accident would not normally have
occurred without carelessness and the cause of the accident is nit the fact spoke
for themselves and therefore it was upon the defendant to prove that he was not
negligence
Limitation of the maxim
The maxim reps ipsa loquitor does not applicable if different inferences possible
have occurred
1. The rule reps ipsa loquitor does not apply in all cases of accident
mischief. It will apply only it can be raised in the case where the accident
was within the knowledge of the defendant or under the control of the
defendant
2. If more than one inference/conclusion has to be drawn. In the case og
Walkelin Vs London and south western Railway Co. in this case the
dead body of a man was found near the railway crossing on the
defendants railway, the man had been killed by a train “at the night”
bearing the usual head light but the driver had not sounded the whistle
when he approached the crossing, in an action the widow file a suit.
Held the maxim of reps ipsa loquitor could not apply due to many
inference that a man could have committed suicide, could have been
negligent killed
3. If the assumption of negligence is rebutted by the defendant then the
application of the maxim will not apply. That the reasons of the accident
were out of his control. Of the plaintiff proves the defendant negligence
then the defendant has to disprove the plaintiffs assumption made by
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the plaintiff or defendant. In the case of Moore Vs Fox and son. In this
case the plaintiff a walkman in the course of his employment he suffered
an injury because of unexplained explosion. The plaintiff will get the
benefit of the maxim because no explanation was given by the
defendant towards him
4. If there is contributory negligence then, the maxim will not be applied
5. If the accident is caused by reason outside the defendant control, the
maxim will not apply
6. When the circumstance do not indicate clear and ambiguous terms
THE LEGAL CHALLENGE OF THE MAXIM RES IPSA LOQUITOR
1. The absence of the law governing the application of the doctrine, the judge
may use it or not using it. Most of the judges do not know the importance
of the doctrine
2. The maxim can be mostly used in medical tort negligence, but in Tanzania
they apply the doctrine of negligence on its behalf, example the case where
in fact apparatus was left within the plaintiff stomach.
In the case of Bryne Vs Boadle in this case the plaintiff was going in a public street
when a barrel and flour fell upon him from the defendant ware house window.
Want of care to the part of the defendant was presumed and it was for him to
show that the same was not for want of care on his part, for the barrel do not
usually fallout from window unless there is want of care
Held Pollock C.B “the fact of its falling is prima facie evidence of negligence and
the plaintiff was injured by it, is not bound to show that it could not fall without
negligence”
 The ware house was under control and management of the defendant
 Things speaks for themselves- the evidence of the wheat flour on the
ground and on the defendant
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Principle underline “where the object is under exclusive control and management
of the defendant or his servant and the injury to the plaintiff is that ordinary could
have not happened due to care by the defendant”
Scott Vs London and Catherine Docks Co in this case the plaintiff was injured
after hit by six bags of sugar which fall from the defendant warehouse
Held the principle in Bryne Vs Boadle was applied as “where the object is under
exclusive control and management of the defendant or his servant and the injury
to the plaintiff is that ordinary could have not happened due to care by the
defendant”
Negligence mi-statement
Statement means the act of stating, predicting, saying something verbal or putting
down on proper or reciting. Mis-statement is simply means saying something,
reacting, lies, verbally or putting down on paper with intention to deceive the
plaintiff
Three kinds or ways of mis-statement
1. Deceit or fraud
2. Negligent mis-statement
3. Innocent misrepresentation
A. DECEIT OR FRAUD
The wrong of deceit consist of willfully making of false statement with an intent to
induce the plaintiff to act upon it and is actionable when the plaintiff suffer the
damage by acting the same
The following essential are required to be proved by plaintiff in an action for

deceit
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1. The defendant made the false statement or representation
2. The defendant knew that the statement is false or at least didn’t honestly
believe it to be true
3. The statement was made with the intention to deceive the plaintiff
4. The plaintiff acted upon the statement and suffer damage in consequence
5. False statement of fact- there must be a false statement of fact to make the
defendant liable for fraud
Exception will not amount
1. Where there is a duty to speak- when a person is under the duty to disclose
the fact remain silence to such disclose
2. When believing a statement incorrect after commit that false, when a
person is made the statement under the belief to be true
3. Non-disclosure of a non party is true, a person is not entitle to made false
statement, councilmen of truth doesn’t amount to deceit/fraud you hide
the truth or fact
Knowledge of the defendant is about the false statement, then plaintiff must
proof that the defendant made his knowledge statement was false or absence of
genuine that is true.
It was made with honestly to be true and the defendant could not be held liable
NB plaintiff has to proof that the defendant he has knowledge of the false
statement he made. If the statement is made honestly then there is no liability
i. False statement of fact/ representation
There must be a false statement of fact or representation to make the defendant

liable for fraud or deceit. In the case of Edington Vs Fitmaurice in this case the
director of the company raised loan by issuing debenture, he purpose mentioned
by the director was the completion of the building of the company and also the
development of the company business. In fact the money so borrowed was to be
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utilized for paying pressing liability. It was held the director was held liable for
fraud/ deceit. Generally to constitute fraud or deceit a positive statement of fact
is required, a statement may be made by word or condition, sometimes the
condition of a person may lead another person to believe that certain state of fact
exist. In the case of R Vs Barnard in this case a person is put on a cap and a gown
without having a right to do so, to create an impression that he was a member of
the university in order to obtain goods on credit. Held it was held that such
conduct has amounted to fraud/deceit.
ii. Knowledge about falsity of the statement
To make the defendant liable, it has to be proved that the defendant either
knows that the statement is false or did not believe in its truth. An honesty man
cannot be considered to be fraudulent; therefore if the defendant honestly
believes that the statement is true, there can be no fraud, mere negligence in
making a false statement will not make a person liable. In the case of Derry Vs
Peek in this case the directors of the tramway company issued a prospectus
containing a statement that the company had been empowered to use steam
power instead of animal power. Their right to use the steam power was subject to
the consent of the board of trade. Such consent had not yet been given but the
director’s honesty believed that the same, being a mere formality would granted
as a matter of course. The board of trade refuses to grant persuasion with the
result that the company had to be wood up. The plaintiff who had taken the
shares on the faith of the statement by the director in the prospectus, he brought
an action against them for fraud. Held the defendant could not be held liable for
fraud/deceit because they honesty believed in the truth of the statement
Principle underline in this case; lord Herschel observed “in order to succeed or
sustain the action of fraud/deceit there must be proof of fraud and nothing short
of that will suffice….. Fraud is proved when it is showed that a false
statement/representation has been made” example
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 Knowledge
 Without belief in its truth
 Recklessly, careless whether it is true or false
iii. Intention to deceive the plaintiff
The defendant must make the representation with intention that the plaintiff
should rely and act upon the representation. In the case of Langridge Vs Levy. In
this case the plaintiff father purchases a gun from the defendant for being used
by himself and his son. The defendant fraudulently stated the gun to have been
manufactured by a celebrated manufactured and quite safe. The gun burst while
being used by the plaintiff and he was hereby injured. Held even though the
defendant made a statement fraudulently to the plaintiff father, the plaintiff
could successfully sue in fraud because the statement made by the defendant was
intended to be and was communicated to the plaintiff on which he had acted
iv. The plaintiff must actually be deceived
There is no fraud until the plaintiff has been actually mislead by an act on the
statement and has suffered damages. In the case Denton Vs G.N. Railway Co in
this case plaintiff consulted defendant train timetable went to train station to buy
ticket. Defendant told the plaintiff that the train did not exist, because there was
no train the plaintiff missed meeting and incurred loss of 5 pound, he file a suit.
Held there was a contract, there was some sort of exchange of value; hence the
plaintiff was rewarded damaged
Principle underlined “if people are doing what they are encourage doing by
another party then that is sufficient exchange of value, therefore contract is
created”
B. NEGLIGENCE MIS-STATEMENT
How far the defendant would be liable for a statement honestly but negligently
made the statement when such statement causes some harm/injury/ loss to the
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plaintiff. In the case of Derry Vs Peek in this case the directors of the tramway
company issued a prospectus containing a statement that the company had been
empowered to use steam power instead of animal power. Their right to use the
steam power was subject to the consent of the board of trade. Such consent had
not yet been given but the director’s honesty believed that the same, being a
mere formality would granted as a matter of course. The board of trade refuses to
grant persuasion with the result that the company had to be wood up. The
plaintiff who had taken the shares on the faith of the statement by the director in
the prospectus, he brought an action against them for fraud. Held the defendant
could not be held liable for fraud/deceit because they honesty believed in the
truth of the statement. Hedley Byrne and Co. Ltd Vs Heller and Partners. In this
case the plaintiff were advertising company, the defendant were banker. The
plaintiff who was advertising agent had seen instructed by their customer,
Easipower Ltd to obtained substantial advertisement contract for the letter. They
were anxious to know credit worthiness of Easipower Ltd. They requested their
own banks to ascertain the financial position of Easipower from the defendant
who were Easipower bankers. On enquiring whether Easipower were trust worthy
to the extent of 100000 pounds per year, the defendant relied that Easipower
were respectably company considered goods for its ordinary business
engagement. The letter also state for your private use and without responsibility
on the part of this bank or its official, the plaintiff relying on these statements
went ahead with the contract made on behalf of Easipower. Easipower
subsequently went into liquidation and the plaintiff suffered a loss o 17000pound
which they had spent on the order. The plaintiff sued the defendant contenting
that the negligent miss statement made in this case amounted to a breach of
duty. Held the defendant were held liable because they had protected themselves
by stating that the statement had been made without responsibility on the part of
this bank or its official
The principle underline in this case; “when a person rely upon the skill of another
person, then the duty of care arises, the defendant would be liable because of
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duty of care and the company was a customer of the banker, they should make a
statement or not to make any statement
HOW IT’S ADOPTED IN TANZANIA
In the case of Francis Ngaire Vs National insurance cooperation in which the

plaintiff was involved in a car accident with the Mushi’s vehicle as the result he
lost his right arm. The driver was subsequently convicted for various traffic
offences arising from the accident. Subsequently the plaintiff advocate
telephoned the officer of the NIC to process the compensation. He was told by
the clerk in charge of the motor vehicle claim department of the NIC that the
vehicle involved in the accident was at the material time insured as against the
third party risk with the NIC. They were requested to fulfill the formality in order
to be compensated, they were asked to send a copy of the police report, which
was done in the same day. After complying with all that was required, the NIC
denied that the vehicle was insured with them on the material day and repudiate
all liability. In fact the vehicle was insured with the BRITISH INDIA INSURANCE
COMPANY, but the plaintiff claims against them was timed bared. So the plaintiff
filed an action in tort against NIC claiming damages for the negligent miss
statement of the employee that the vehicle was insured with NIC. Held the
defendant NIC had held liable because there is a duty of care due to professionals
that he had made by the employee
Biron J. citing the rule in Hedley Brymes (supra) decided in favor of the plaintiff, in
views of the proceeding rule, one could rightly state one has to go through three
pronged stages;-
1. Plaintiff must prove that the defendant possessed of a special skills

2. The plaintiff must reasonably rely on the defendant advice
3. The defendant must have same knowledge of the type of transaction for
which the advice is required
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INNOCENT MISS REPRESENTATION
When a person makes a false statement but there is neither an intention to

deceive nor any negligence in making the statement, there is no liability for such a
statement under the law of torts because in such a case action cannot lie either
for deceit or negligence miss statement. Therefore the act does not create liability
for a false statement if there is no contract on the basis of false representation as
stated in Hedley Byrne’s case
NERVOUS SHOCK
It is an injury to the nerve or brain not by an impact example by stick or bullet but
merely by a nervous shock through what he seen or heard
Victorian railway commissioner Vs Coultas did not recognize injuries caused by a

shock sustain through the medium of eye or ear without direct contact, they
thought that an action could not be sustained unless there was physical impact.
Not long after the above stated decision we however find that injury cause by
nervous shock without there being any physical impact has been recognized
In 1897 Wilkinson Vs Downton the defendant was held liable when the plaintiff
suffers nervous shock and got serious ill on being told falsely by way of practical
jokes by the defendant that her husband had broken the legs in an accident,
hence the plaintiff was entitle to recover damages
Bourhill Vs Young a plaintiff, a fish wife while getting out of tram car heard of an
accident but could not see the same as she was about 50feet away from the
scene and her view was obstructed by the tram car. In the accident which had
occurred a negligent motor cyclist had been killed after the body of the cyclist had
been removed the fish wife happen to go to the Sean of the accident and saw the
blood on the road, as the result of the same she suffered nervous shock of the
motor cyclist
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Held the house of lord held that, the deceased person could not have expected to
foresee any injury to and care for her and such personal representative could be
made liable
Three principles laid down in this case are
1. To impose liability on the defendant, the defendant must owe a duty of

care to the plaintiff
2. The defendant must be able to foresee reasonable injury to the plaintiff
and take precaution to prevent injury
3. To enforce liability, the plaintiff must be within the potential area of
danger
King Vs Philips the defendant was the owner of taxi cab, on the high way at the
child was playing, the driver tried to slow back the vehicle and he did not see the
small child who was behind the taxi cab, the mother was watching at the window
at a distance of 70 to 80 yard, she could only saw the Taxi, watching a taxi and the
bicycle of that small child under the cab and how the child screaming, but could
not see the boy. The boy and the tricycle got slightly damage but the mother
suffered nervous shock.
Held the mother was held to be wholly outside the area of reasonable
apprehension and the defendant was held not liable
Hambrook Vs stokes Bros whereas the mother suffering from nervous shock
because of fear of injury to her children could recover for the purpose of an
action for nervous shock a person need not be in the area of physical injury to
himself by his defendant
In this case soon after having parted with her children in a narrow street, a lorry
violently running down the steep and narrow street, she was frightened about the
safe of her children, when told by some that the child answering the description
of her child had been injured, she suffer nervous shock which resulted in her
death
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Held in action against the defendant who had negligently left the lorry
unattended there, they were held liable even though the lady suffering nervous
shock was not herself within the area in physical injury so the case of king Vs
Philip need to be reconsideration
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TOPIC FOUR
OCCUPIERS LIABILITY
An occupier of the premises or structure owes the common duty of care to all his
visitors unless he justifiable limit or exclude his duty to any visitors by agreement
or otherwise.
The duty of care is a duty of taking reasonable care to see that the visitor will be
reasonable safe in using the premises or structure for the purpose for which they
are invited or permitted by the occupier to be there
The liability of an occupier of premises for injury caused or damage done to

person or their property while in the premises
The law in this area is now statutory and is governed by the 1957 occupiers
liability Act of England and 1967 occupiers liability Act of Tanzania, this are the
common laws act
Occupiers liabilities act of 1957 are par material with that of 1967 of the Tanzania,
therefore two terms should be noted;
 Who is an occupier?
 What is the premise?
Who is an occupier?
According to section 1(2) of the both acts 1957 and 1967 defines an occupier as a
person who has sufficient degree of control over the premises such that he ought
to be under a duty of care to those who came into the premises. This possible for
more than one person to be an occupier, an occupier need not to live in the
premises of which for the premises of the act he is an occupier
Wheat Vs Lacon the defendant was the owner of a public house, the
management of which they entrusted to a manager. By the virtue of the services
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agreement, the manager was entitling to live in the flat above the pubs house and
to take in paying interest guest. There was no direct access between the pub and
the flat, both parts having separate entrance. Wheat and his wife were paying
guest of the manager. Wheat was fatally injured when he fell down on unlit and
defective staircase in the flat, wheat wife sued the defendant and the main issue
was who was in occupation of the flat
Held; the house of lords held that in determine who is the occupier was the
important question was who had sufficient desire of control over the premises
such that he ought to be under duty of care to those who came lawfully into the
premises. The owner was the occupier of the premises, hence the owner was held
liable to take reasonable care for the safety of those present on the premises.
The defendants although not in actual occupation, retain sufficient control

because they only granted a contractual license to the manger to occupy the flat
and had retained the right to enter to do repairs.
What is a premise?
According to section 1(3)(a) of both occupier liability act underline that, premises
are not only land, shop, factory, houses, vehicle and real property but also
movable and immovable property. The nature of the occupier liability obligation
depends on upon the kinds person who enter the premises and therefore the
occupiers liability will be considered under the following three heads of studying;
i.
ii. Obligation towards lawful visitors
iii. Obligation toward trespasser
iv. Obligation toward children
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Obligation towards lawful visitors
Who is the visitor?
A lawful visitor is the person who enters with the express or implied permission of
the occupier. The act also expressly provides that person entering premises under
a contract and those entering as a right are afforded the same protection as
lawful visitor. An occupier may limit permission to enter. There are two categories
of visitors which are;
 Invitee
 Licensee
Invitee
When the occupier of the premises and the visitor had a common interest or the
occupier had an interest in the visit of the visitors, the visitors was known as
invitee for example a customer who enter in a shop was an invitee even though
has actually buy or purchase nothing, but a guest who was invented for a dinner is
the is a licensee
Duty toward the invitee
The occupier has the duty to take reasonable care to prevent any damage to the
invitee from any unusual danger on his premises, which he knew or ought to have
known, thus toward an invite the occupier liability was for loss caused by unusual
danger not only in the respect of which the occupier was actually aware but also
such danger which he ought to have known
The above rule was laid down in the case of Indermaur vs. Dames the plaintiff
who went to the defendant house as a gas fitter entered the defendant premises
for testing certain gas fitting there, while doing so he fell down from an opening
on the upper floor and was injured. The plaintiff being an invitee on those
premises
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Held; the court held that the defendant was liable for the injury caused to him
because he was an invitee
Another case is the case of the Cates Vs Mongini Bros the plaintiff went to the
defendant restaurant to take lunch and take a seat under the ceiling fan; the fan
fell on her whereby she was injured. In action against the defendant negligence
was found that the fan had fallen due to latent defect (not seen by eyes) in the
metal of the suspension rod and the same would not have been discovered by
reasonable care on the part of the defendant
Held; there was no negligence on the part of the defendant and hence the
defendant was held not liable
Licensee
When the occupier had no such common intention, the visitor was known as the
licensee, he entered the premises with the express or implied permission of the
occupier for his own purpose rather than for the occupier interest
Duty toward the licensee
 The occupier had duty of care to give due warning of any latent defect or
concealed danger in the premises of which he was aware
 He had no liability for the loss caused by danger not known by him, he was
also to be not liable for any danger which was obvious and the licensee
must have appreciated the same. Case of Fairman Vs perpetual investment
building society the plaintiff went to stay with her sister in a building
owned by the defendant and let out the sister husband. The defendant was
in possession common staircase. Owing to the wearing away of the cement,
there was a depression in one of the stair. The plaintiff heel was caught in
the depression she fell from there and got injured she file the suits. Held
the plaintiff being licensee the defendant could be made liable toward her
only for a concealed danger. In this case the injury to the plaintiff was due
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to the danger which was oblivious and could be have been observed by her
therefore the defendant could not be made liable for the same
Liability of the land lord/occupier of the building
An occupier is expected to observer toward building, what is known as the

common duty of care, he has to maintain the building so that it cannot cause
damage to the user. I the case of Kallulal Vs Hemchand the plaintiff was the
owner of a house, the southern wall of which adjoined a high way, for several
years in the past there used to keep on the highway by the side of the wall. On
25-8-47 at about 5;30pm while it was raining the said wall of the first floor
collapse and caused the death of the respondent 6 years old son and 10years old
daughter
Held that the collapse of the wall was itself evidence that the said wall was in bad
condition, it was further held that the rainfall of 2 to 3 inches during the rain it
didn’t constitute an act of God and the same ought to have been anticipated and
provided against the appellant was therefore held liable
Obligation toward a trespasser
Who is a trespasser? One who goes upon the land without invitation of any sort
and whose premises is either unknown to the property or if known is particularly
objected
This is related to the common law under 1957 the occupier liability act 1968 does
not apply to trespasser, however some prominent writer propose that a duty to
uninvited entrants in respect of any danger due to the premises arises only when
three condition are met;
i. The occupier must be aware of the danger or have reasonable

ground to believe it existed
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ii. When the occupier knew or had reasonable ground to know that the
uninvited entrant either was or might come into the vicinity of the
danger
iii. When the risk of the injury to uninvited entrant resulting from that
danger was one of the cases that the occupier might reasonably be
expected to offer the uninvited entrant some protection
Case of lowery Vs walker in this case the defendant was the occupier of a filed
across which the member of the public had used a short cut from and to the
railway station for thirty five years. The defendant had on occasion objected to
this practice but had taken no effective step to stop the trespasser. Then the
plaintiff when crossing the field was seriously injured by the savage horse which
the defendant had kept there without notice held the plaintiff was deemed to be
there with tactic permission of the defendant he was a licensee and therefore the
defendant was held liable for the injury suffered by the plaintiff because he knew
for 35 years for the trespasser to his land but he was silence and the savage horse
to threaten
Cherubin Vs state of Bihar in this case the appellant had fixed naked electric wire
fully charged with electricity across the passage to his latrine to prevent
trespasser from sing the same, no warning regarding the wire being live was
given. This naked wire caused the death of a person who visited the latrine. Held
the deceased be the trespasser, the occupier owed no duty to him and the act of
the appellant was not actionable, but in the supreme court rejected the
contention of the appellant and holding the appellant liable stated “ it is doubt
true that the trespasser enters the property at his own risk and the occupier owes
no duty to take reasonable care for his protection, but at the same time, the
occupier is not entitled to do willful act such as set a trap or set a naked live wire
with the deliberate intention of causing harm to the trespasser or in reckless
disregard of the presence of the trespasser”
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NATURE OF THE DUTY
 Must make his premises safe for the trespasser to use it

 Must not cause deliberately dangerous thing in his land to harm the
trespasser
 If the presence of the trespasser is unknown/unknown what should the
trespasser do? The occupier doesn’t know about the presence of the
trespasser he must place some sign warning or he should not do a
dangerous act in regard to the presence of the trespasser there or must
give a due warning of the same. In the case of Mourton Vs Poulter the
defendant was cutting a tree near which some children were known to be
present. The defendant did not warn the children when the last root was
cut and the plaintiff was injured by the tree a children of 10 years. It was
held that the plaintiff was a trespasser, the defendant was held liable
because he failed to give reasonable warning of the imminent danger to
him
OBLIGATION TOWARD CHILDREN
Section 2(3)(a) of the occupier liability act of 1957 provide that an occupier must
be prepared for child to be less careful than adult
Where an occupier knows or ought to know that children are in habit of frequent
visiting a particular place, he must take an account of that fact and may be
require taking a greater care than he would do if children died without having
access
The occupier must guide the child visitor even such danger from which the adult
do not need any protection because the children may be altered by certain
dangerous object which the adult may like to avoid
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Glasgow Corporation Vs Taylor the controlled Public park, a child of 7 years pick
up and ate some attractive berries on a shrub in the park and died because the
berries were poisonously the berries were obviously an allurement for the
children but the defendant has not given sufficient warning intelligible to the
children of the deadly character of the berries
Held the court was of the view that existence of poisonous berries was known to
the corporation and it did not take make any effort to warn or stop children from
reacting berries and hence the corporation was liable for want of due care
Lord summer said “the child had no right to pluck the berries, but the corporation
had no right tempt the child to its death or expose it to temptation regardless of
the consequence”
Section 2 of the occupier liability act1957 provides that the duty which an
occupier owes his visitor is the common duty of care. This is defined under section
2(2)(a) as “a duty to take such care as in all the circumstance of the case is
reasonable to see that the visitor will be reasonable safe in using the premises for
the purposes for which he is invited or permitted by the occupier to be there
Another case Cooke Vs Midland Great Western Railway of Ireland the defendant
a railway kept a turntable on their land close the road, children within the
knowledge of the railway servants used to pass through a gap in the fence and
play with the turntable. The defendant take no effective steps prevent the
children from doing or going there or lock or otherwise fasten the turntable, the
plaintiff child of four years was injured while playing with the turntable
Held the house of lords held that in the circumstance of the case the child was
licensee there, the unlocked turntable was allurement for them and the
defendant were therefore liable for the damage to the child
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LIABILITY FOR ANIMALS
The liabilities for defendant under this rule depend upon the knowledge of the
dangerous character of the animal. If the defendant has not been able to properly
control the animal which he knows or ought to know to be having a tendency to
do the harm he is liable.
An animal keeper is strictly liable, independent of negligently for damage done by

the animal of both categories
TWO CATEGORIES OF ANIMAL
1. Animal ferae naturae (dangerous animal)
These are animal which are dangerous according to their nature, and if such
animal get out of control and cause damage the owner will be liable. Examples of
animals are like lion, tigers. The keeper keeps such animals at his premises and his
liability is strictly and the liability arises even without proof of negligence
2. Animals Mansuetae Naturae (animals which are harmless)
By their nature are harmless animal to the human kind like cows, camels, rabbit.
This kind of animals when they cause damage the keeper is not liable unless it can
be proved that the particular animal in question had viscous or savage properly
and the person having in control had the knowledge of the same
The liability for damages done by animals can be studied under three (3) heads
1. The scienter rule

2. Cattle-trespass
3. Ordinary liability in tort
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SCIENTER RULE
Means the knowledge as to it dangerous nature is conclusively presume and the

person having their control will be liable for the damage caused by their escape
even without any proof of negligence on his part
Liability for keeping animals “ferae naturae” section 2(1) animals act 1971, when
the keeper of the animal ferae knows of their dangerous nature and if such an
animal gets out of control and cause damage, then he will be liable, the keeper
keeps such an animal at his premises and his liability is strictly. The liability arises
even without proof of negligence
Behrens Vs Bertram Mills Circus Ltd the defendant operated a circus, their
Burmese elephant which was circus-trained was frightened by the barking of a
small dog. The elephant ran after the dog toward a booth and the booth was
knocked down and the plaintiff was inside the booth. Although not injured
physically received a considerable shock and had to be confined to bed for two
weeks in hospital
Held the defendant were held liable because the animal itself belongs to animal
nature ferae (lass of dangerous animal)
LIABILITY OF ANIMAL MANSUETAE NATURAE
Any damaged caused by animal belonging to the animal mansuatae in nature, the
plaintiff has to prove some abnormal condition of the animal, two things have to
be proved
1. That the animal in question had a vicious propensity which is not

common to animals of that species
2. That the defendant had the actual knowledge of the viciousness
Buckle vs. Holmes in this case the defendant cat entered into the plaintiffs land
and there killed 13 of the plaintiff pigeon and two bantams. Since the cat is doing
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so had followed the ordinary instinct of its kind and there were no vicious
propensity to this cat
Held the defendant was held not liable because the cat was followed the ordinary
instincts of its kind and there was no viciousness nature
Hudson Vs Roberts in this case the defendant bull was instated by the red
handkerchief which the plaintiff was wearing and it attack the plaintiff while he
was walking along the way-high way. The bull has shown this tendency before
also and the defendant had the knowledge of the same
Held the defendant was held liable because he had the knowledge of the past
conduct of the Bull
DEFENSES OF SCINTER RULE
1. Plaintiff own default

2. Volenti non fit injuria
3. Act of God
4. Act of the third party
5. Plaintiff wrong doer
6. Statutory authority Eg police dog
CATTLE TRESPASS
Under the common law, the owner of the cattle may also be liable if his cattle
commit trespass on the land of other persons. There is no necessity of proving
negligence on the part of the defendant. Cattle for trespass include bulls, cows,
sheep, pigs, horse.
Dogs and cats are not included in the term hence therefore there cannot be cattle
trespass.
Buckle vs. Holmes in this case the defendant cat entered into the plaintiffs land
and there killed 13 of the plaintiff pigeon and two bantams. Since the cat is doing
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so had followed the ordinary instinct of its kind and there were no vicious
propensity to this cat
Held the defendant was held not liable because the cat was followed the ordinary
instincts of its kind and there was no viciousness nature
Ellis Vs Loftus Iron Co in this case the defendant horse kicked and bit the plaintiff
mere through the wire fence which divided the properties
Held the damage could not here been caused without the horse body having
crossed the boundary, there was cattle trespass and the defendant was held liable
without proof of knowledge of the vicious nature of the horse or negligence of
the part of the defendant
NB the action for cattle trespass can be only brought by the occupier of land,
person other than the occupier such as family member, guests or stranger on his
land can sue under scienter rule or for negligence and not for cattle trespass
Cox Vs Burbidge in this case the plaintiff, a young child was kicked and injured by
the defendant horse that trespassed on the highway
Held this was a trespass only against the owner of the land over which the high
way ran. The child was a mere user of the highway and it was held that towards
him hence the defendant could not be liable unless scienter or negligence could
be proved
ORDINARY LIABILITY IN TORT
Through the mentality of animal, it is possible to commit various tort, keeping

dogs in some premises which cause unreasonable interference with neighbor
enjoyment of his property is nuisance
The owner of a cattle may be held liable if his cattle trespass to another person
land and eat of trees or crops
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If the animal kept on the defendant land strayed to the highway or any action can
be raised against him
Searle Vs Wallbank in this case the plaintiff was going to the highway on his
bicycle and the defendant horse escaped through a gap in the fence to the
highway without the defendant negligence and injured the plaintiff by colliding
against him
Held the defendant was held not liable because the person who keeps a domestic
animal on his land on a high way has no liability the user of the highway on his
animal escape to the highway
Exception to the rule
1. If a person has an animal under his control on a highway, he will be liable if

he negligently fails to have a reasonable control of the animal there. In the
case of Tillet Vs Ward in this case a bull which was being drive through the
street by his defendant servant with due care entered the plaintiff shop
through an open door and did some damage it could be taken out again.
Held there was however no liability when there is no negligence on the part
of the defendant and the animal despite the best care on the part of the
defendant, goes out of control and cause injury, therefore the defendant
was not liable
2. If a person keeps an animal which is ferae nature or an animal though a
mansuatea nature but known to its keeper as having some vicious
propensity the keeper is liable if the animal escape on the highway and
cause damage
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TOPIC FIVE
INTENTIONAL/ SPECIFIC TORT
Law of tort was born in England and spread to entire world, for example trespass
to immovable property, battery, assault, negligence, nuisance
TRESPASS TO PERSON
The most important wrongs which fall under the umbrella of trespass to person
are assault, battery and false imprisonment
These are intentional tort, they can’t happen accidentally. They are civil wrongs
and are not criminal offence. A person commit the one of the three offences will
not be subjected to imprisonment
Assault
Means unlawful act by the defendant laying of hand on other person and apply
force without lawfully justification. There must be application of force and must
be also absence of bodily contact, like pulling of chair
Essential Element of assault
1. There must be a threat of force, there must be some act involving bodily
gesture of threat by the defendant, word do not amount to assault. The
case of Innes Vs Wylie under this case the policemen unlawfully prevented
the plaintiff from entering the club premises, it was brought an action. Held
it was held that “if the policemen has entering passive like a door or a wall
to prevent from entering the room” there was no assault
2. Reasonable apprehension of danger or force, the gesture done by the
defendant must create the impression of fear in the mind of the plaintiff.
Case of Blake Vs Bernard in this case the defendant pointed a loaded pistol
at the head of the plaintiff and said that he would shoot if he didn’t shut
his mouth, he would blow his brain
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3. Defendant ability to carry out the act or threat, here the plaintiff must
proof that the defendant was in the position to execute the action or
gesture. Mere verbal threat cant amount to assault unless it create
reasonable apprehension in the plaintiff mind that immediately force will
also be used. Case of Stephen Vs Myers the plaintiff was the chairman of
the parish meeting, the defendant also sat at the same table but there
were six to seven people between him and the plaintiff. In the course of
some angry argument the defendant was ordered to be taken out, the
defendant started to shout to the chairman that he will pull him out of the
chair, but before that while advancing to execute his act the defendant was
pulled back by church warden who was sitting next to him. The plaintiff
sues the defendant for assault. Held the defendant was held liable for
assault because all element of proving assault were present
BATTERY
This is simply means the wrong which consist in intentional application of force to
another person without any lawfully justification, it is the actual striking of
another person or touching him/her in a rude way, angry, revenge
Essential element of battery
1. Use of force- here the defendant must use force without any justification to
the plaintiff
2. Intentional and without lawfully justification. The case of Stanley Vs Powel
in this case the defendant Powel who was a member of a shooting party,
fired at a pheasant but the bullet from his gun glanced off a tree and
accidentally wounded the plaintiff Stanley another member of the party.
Held the court held that the defendant was not liable but if the act was
willfully or negligent then the defendant would be liable. Pratap Daji Vs B.B
& C.I Ry in this case the plaintiff entered a carriage on the defendant
railways but by oversight failed to purchase a ticket for his travel. At an
intermediate station he asked for the ticket but the same refused, at
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another place he was asked to get out of the carriage since he didn’t have
the ticket, on his refusal to get out force was used to make him out of the
carriage, Held the use of force was justifiable as he being without a ticket
was a trespasser hence therefore the defendant were not liable. Cherubin
Gregory Vs State of Bihar, in this case it was held that fixing naked live
electric wire without due warning across the passage of a latrine to keep
the trespasser away from the latrine and thereby causing death of the
trespasser actionable
Difference between assault and battery
1. Assault action which puts another person in instant fear of unlawful force
while battery use of unlawfully force
2. Actual contact is missing while actual contact is necessary
3. Every assault may not include battery while every battery includes assault
4. Assault is not easy to prove while battery is easy to proof
Defenses to assault and battery
1. Consent
2. Necessity
3. Self defense
4. Defense of property
5. Lawful justification
FALSE IMPRISONMENT
This is restrained for a short period of time, the position or imposition of total
restrain for some period however short upon the liberty of another without
sufficient lawfully justification
According to WINFIELD false imprisonment means an infliction of bodily restrain

which is not authorized by the law
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BUT TRUCK argue that false imprisonment means a complete deprivation of a
person liberty for however short time without lawfully justification
Essential element of false imprisonment
1. There should be a total restrained in the liberty of a person

2. It should be without any lawfully justification
Total restrained of a person’s liberty, the plaintiff has to show that he has to
show that he was totally restrained by the defendants, if there is a means of
escape then such can’t be amount to false imprisonment
If the person is prevented from going to a particular direction but is allowed to

go back, there is no false imprisonment
Case of bird Vs Jones, in this case a [art of the public footway as opposed to
carriage way, on hammer smooth bridge was wrongfully enclosed by the
defendant, seat were put there and entry to the enclose was allowed to those
who made the payment to watch the rowing there the plaintiff asserted his
right of using the footway, climbed over the fence of the enclosure was
prevented to go forward. He remained there for almost half an hour and
subsequently brought an action for false imprisonment
Held there was no false imprisonment as there was no total restrain on the
plaintiff liberty the plaintiff being free to go back to or even to cross the bridge
through the carriage way
Herd Vs Weardale steel, Coal & coke the plaintiff was the employee for the
defendant in the coal mine company, the company as the responsibility to
carry the employee morning and evening from the outside to the inside of the
coal mine. One day the plaintiff got into the mine at 9 a.m and later on he
demanded to go back outside the mine, but the company refuses because it is
clear that until the time reached is when the employee are allowed to get out
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the mine, so due to this the plaintiff sue the company for the false
imprisonment
Held there was no false imprisonment because the defense of volenti non fit
injuria stand, the plaintiff knows the actual time to go out of the mine but he
went in the mine anyway
There have been different in opinion on the point whether the knowledge of
the plaintiff that there has been restrain on his freedom is essential to
constitute the wrong of false imprisonment
Herring Vs Bayle a small child who was studying in a school, when the mother
went to took the child the headmaster restrained until she pays the school
fees
Held for the case of knowledge is material and hence the child does not know
his right, therefore by the virtue of not knowing the right the defendant
cannot be made liable
Mee Vs Crukshank the plaintiff was a prisoner in that prison, then later after
he was acquitted, some years later was arrested by the police get him and
detained him in few minute and jail warden later questioned him in response
of the same offence
It was held that the defendant were liable for the false imprisonment
REMEDIES FOR FALSE IMPRISONMENT
1. Damages- the plaintiff may claim damages in two ways. One injury to the
liberty of the person and second one is the injury to personal feelings
2. Self help a person detained is authorized by the law to use reasonable force to
escape from the detention
3. Habeas corpus
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Defenses in false imprisonment
1. Lawfully justification
2. Need of escape
3. Contributory negligence
4. Parent or quasi parental authority
5. Statutory or lawful authority
6. Consent
7. Inevitable accident
8. Judicial authority
MALICIOUS PROSECUTION
Malice in common acceptation means and implies “spite” or “ill-will” against

another
In legal meaning it means an act done wrongfully and willfully without reasonable
or probable cause. Something done without lawful excuse it is deliberate in
disregard of the right of other
Prosecution means criminal proceeding against a person in a court of law charged

with crime, a prosecution is there when a criminal charge is made before a
judicial officer or a tribunal proceeding before police authority is no prosecution
Malicious prosecutions consist in instituting unsuccessfully criminal proceedings

maliciously and without reasonable and probable cause
Action against another person intentionally and with malice in a court of law
without reasonable and probable cause
The plaintiff in the original suit will be the defendant in the malicious case
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Essential element of malicious prosecution
1. The plaintiff was prosecuted by the defendant in criminal case

2. The prosecution was instituted without any reasonable and probable cause
3. Malice
4. Termination of the proceeding in favor of the plaintiff
5. Damage
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TOPIC SIX
TORT AFFECTING IMMOVABLE PROPERTY
Means unauthorized interference with position and enjoyment of land of another

person, what is important to land trespass in the inversion of land or property
without the authorization of the owner
Three ways to commit trespass to land
1. By defendant entering the land

2. The defendant remain in the land
3. The act of keeping the object to the land
If trespass is done to commit an offence then it is criminal trespass but if it is done

without intention to commit the offence then it is civil wrong
Essential element of proving trespass
1. Entry into or upon property in possession of another

2. Unauthorized interference by the defendant into plaintiff land
3. Direct interference, there must be direct interference to plaintiff land
4. Damage
Ways to commit trespass
1. Trespass by wrongful entry upon the property of another

2. Trespass by remaining to the land
3. Trespass by placing physical object to the land
4. Trespass by animal
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 Entering upon the property of another
When someone forceful into the land of another that is not trespass, but when
throwing any physical object into some ones land that will amount to trespass. In
trespass to land it is not necessary to cross upon the land of someone but even
slight cross to boundary of another can be trespass.
 Remaining in the land
When you have given the permission to enter into someone’s property with a
specific purpose, but when the time of the permission ends, if such person still at
the property then such act will amount to trespass
 By placing some physical object
Any physical object which come into contact with another person property then it
amount to trespass, example throwing a stone into ones property
Element of trespass to land
1. Unlawful interference- the plaintiff has to show that there is unlawful

existence of interference on his land
2. Direct interference
3. Damage- in trespass to land the action is actionable per see, the plaintiff
does not need to proof damage suffered
The nature and character of trespass can be understood under three heads
1. Trespass ab initio
2. Trespass by abuse of license
3. Continuing trespass
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 Trespass ab initio;-
Means trespass from the very beginning, person is given permission and
abuses such permission he is also liable for trespass ab initio, the law
presumed the purpose was bad form the beginning. Two important
element to constitute trespass ab initio, one the entry of the defendant into
the plaintiffs land should be given by the authority of the law ( statute) and
second is that the defendant must committed an act of misfeasance and
not non feasance.
Mis feasance means not doing a lawful act in a proper manner (way), non
feasance means an omission to perform a duty and malfeasance means
doing an act wrongful
NOTE; when a plaintiff want to succeed into ab initio, then he has to prove
the element
 Trespass by abuse of license ;-
A person issue a license is called the licenser the one given a license is
called a licensee. If the licensee remains into the premises of the licenser
then he is abusing the license given to him then such amount to trespass
 Continuing trespass;-
This happens when a person leave an object into the land of another, then
the owner can sue for continuing trespass until and unless the object has
been removed
Remedies for trespass to land

1. Action of trespass
2. Expulsion of trespass- when someone want to expel a person into his
land then he can use reasonable force and not excessive
3. Defense of property
4. Distress damage feasant- when a thing has been given without legal
justification. Takes any goods, animal or things without any legal
justification in exchange with the demand satisfied
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5. Action for mesne profits – it is the profit which accrued (accumulated)
upon the land which is in dispute, then the plaintiff has the right to seek
for such profit OR any profit which is derived from the land which is in
dispute
6. Damage
7. Re-entry on land- when a person is wrongful dispossession of the land,
then the plaintiff can claim for the re-possession of the land. When a
person is given a lawful permission upon a property and if refuses to
vacate from that property e.g. (house) then the real owner can claim to
be given back his house by vacating the former
DEFENSES ON TRESPASS TO LAND
1. Easement
A right, privilege, interest, permission to a neighbor to enter and use of a property

(land) of another. E.g. right to water, right to lay underground pipes, then if a
defendant enjoying the land of another under easement cannot be sued under
land trespass
2. Prescription
When a person continue to do a certain activities into another land for long
period of time, he acquired the right of prescription then he cannot be sued for
trespass to land
NOTE; prescription is the peaceful enjoyment of another land for a certain period
of time. Then if person enjoying this right then the plaintiff cannot sue the
defendant
3. Leave and license

4. Authority of law
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If someone enters into someone’s land under the authority of law cannot be sued
under land trespass
5. Act of necessity
Entry of another person land to perform a necessity thing does not amount to
trespass to land
6. Self defense
7. Removal of nuisance
Removal of nuisance can be done into three ways
 Peaceful manner
 Without causing any danger to another person
 By giving notice
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TOPIC SEVEN;
TORT RELATING TO MOVABLE PROPERTY
TRESPASS TO GOODS
It consists in direct physical interference with the goods which in the plaintiff
possession, without any lawful justification, it may be numerous form such as
throwing of stone on a car. Trespass to goods is actionable per see, that is without
the proof of any damage, however when the plaintiff has suffer no loss, he will get
only nominal damage.
Tort committed against certain mobile properties like animal, goods are termed
as trespass to goods. The law relating to mobile property can be studied into four
ways
1. Trespass to goods
2. Trespass ab initio
3. Trespass detinue/ wrongful detention
4. Conversion
 Trespass to goods
It means unlawful interference with the property of goods of another without

lawful justification. This takes place by taking goods from the plaintiff position.
There are four important elements under trespass to goods
a) An interference with the possession, the plaintiff has to establish that he

was lawful posses the goods and the defendant interfere such good
unlawful. When a person posses unlawful goods and when a true owner
takes the goods unlawful then such person can bring an action against the
owner
b) Direct interference, the plaintiff has to show there was physical direct
interference to the goods possessed to him, intention is immaterial
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c) Without lawful justification, the plaintiff has to show that the defendant
interfered his property without lawful justification
d) Damage, the damage in tort of trespass to goods is actionable per see
 Trespass ab initio
 Trespass to detinue/ wrongful detention
It is when the wrong doer takes goods of a plaintiff and keeps it when the plaintiff
demand to get it back then the defendant denies handling back. But this tort is no
longer exist, it was replaced by the interference of goods act of 1977 and now
there is new tort called traver conversion
 Conversion
It means that when a person having goods of another person and come up and
convent it to be his own goods (to be a true owner) without the consent of the
true owner, then the true owner can institute an action. Conversion takes place in
five ways
a) When the property is wrongful taken, the property must be taken wrongly
(out of the possession of another person), the goods must be taken out of
someone position (possession)
b) Conversion by parting with goods, if a person is entrusted with goods of
another, then if he puts that goods into the hand of the third person
without the consent of the owner, then that amount to conversion
c) Conversion by sale, wrongful sale of goods also amount to conversion
d) Conversion when the property is wrongfully detained, if the goods of a
person are in the possession of another, then he has to send a rightful
person to get back but if the person whose goods are in possession if he
refuses to handle it back the true owner can sue for the tort of conversion
e) Conversion by destruction,
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Notes; who sues for conversion? First the true owner of the property an second
the actual possessor
SLANDER OF GOODS AND SLANDER OF TITLE
Slander of goods , any statement made by the defendant to the said part about
the plaintiff saying that the goods of the plaintiff have no quality, such statement
made by the defendant should make the depression of the price of the goods
then it amount to slander of goods, the statement should affect the goods of the
plaintiff
Slander of title, the defendant makes false malicious statement orally or in

writings to the third statement such statement must affect the title of the plaintiff
The plaintiff has to proof the following on slander
 There must be a publication of the statement

 The defendant must have made the false statement orally or writings
 The statement made must tend to injure the plaintiff
 The plaintiff shows have suffered damage
 Injury of title
EXTINCTION OF TORTUOUS LIABILITY
Different ways for a defendant to be discharged from tortuous liability
1. Death of either parties;
Whether death of one of the parties can extinguish anyone from tortuous
liability?. In tort the concept of death can be legally explained by the maxim
action personalis moritur cum persona which means personally cause of action
dies with a person. This maxim applies in criminal law but nit in contract, but it
does not apply in a certain of personal skills (service)
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2. Waiver
Waiver means is a voluntary abandonment of a right, privilege, benefit etc. it

means repudiating a right of benefit consensus tollit erro rem. Waver is based on
the maxim consensus tollit erro rem means consent removes error. The maxim
applies in pleading and in practice proceeding. In tort, if an injured person has
two remedies on the same wrong, then if he chooses one remedy between the
two, then he has waived away to the second remedy then he cannot later claim
from the second remedy
3. Acquiescence
It is an agreement to do what someone’s want you to do, even though you don’t
agree with it. If a person doesn’t bring an action against a wrong doer for long
time, this means he waived such right against the wrong doer
4. Accord and satisfaction
Accord is an agreement made between two or more person, satisfaction means

signification that is paying to the plaintiff satisfaction. It is the consideration
paying by the defendant to the plaintiff for the injury suffered. This means that if
a plaintiff agrees to receive something as consideration form the defendant, then
the defendant will be discharge for tortuous liability
5. Release
The injured can release the wrong doer form tortuous liability by way of
agreement. There is no format to the document but the word in the document
has to show the intention of releasing the defendant from tortuous liability. This
is based on the maxim quiligatur eo dissolvitur which means by which things a
person is bound he must be released on the same.
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TORT II
TOPIC ONE
Defamation
Defamation is among the tort which affecting person; it originated the root of
every individual. In that case defamation means injury to the reputation of a
person. If a person injuries the reputation of another, he does so at his own risk,
as in the case of interference with the property. A man’s reputation is his
property and if possible, more valuable than other property
Prof, Winfield define defamation as the publication of a statement which tend to

lower the reputation of a person and estimation in the right thinking members of
the society which makes them to avoid in society
Prof.salmon define defamation as the wrong consist of publication of a false

statement and defamatory statement tending to injure the reputation of another
person without lawfully justification and excuse
In Tanzania defamation is governed by the newspaper act of 1976Cap 229 Act

number 3 sections 38 to 47
In Tanzania the case of Hamis Vs Akilimali the court define the term defamation
as “communicating to the mind of another, matters which are untrue and likely in
the natural cause of things substantively to disparage the reputation of the third
person(s)”
So from the above definition it could be argued that defamation as such requires
the following ingredient to be proved;-
1. Defamatory statement
2. The defamatory statement must be referred to the plaintiff
3. The statement must be published
4. Damage
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Kinds/types of defamation
There are only two types of defamation namely
1. Libel
2. Slander
Libel
Section 38 of the news paper act speak about libel to mean the publication of
false statement and defamatory statement made in permanent from which the
other person without justification and excuse and its penalty its provided under
section 47 of the same act
Libel it is the type of defamation which is committed by way of printing, writings,

painting or publish any defamatory matter concerning another person with the
intent to defame that other person. In short libel is the defamation in permanent
form and visible to the eyes and it is actionable per se.
Slander
It is the false statement which is made either orally or verbally which injures the
reputation of another person without any lawful justification. Slander is the type
of defamation which is audible and temporary from. Example words spoken,
gesture, smile, and sounds
Slander is not actionable per se but there is an exception where slander may be
actionable per se such as;-
1. Criminally offence, if the defendant imputes the plaintiff of any criminal

offence hence the plaintiff needs no any proof of the damage
2. Contagious disease
3. unchasisty
4. witchcraft
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Youssoupoff Vs Metro Goldwyn Mayer pictures Ltd, in the cause of a film
produced by an English company called Metro Goldwyn Mayer pictures limited, a
lady princess Natasha as shown as having relations of seduction or rape with the
man Rasputin, a man of a worst possible charter and suffered in her reputation
Held; the defendant were held liable because they have picturized and severed
for libel, not only the picture could be considered as libel but also the speech
cause the slander
ESSENTIAL ELEMENT OF DEFAMATION
There are three essential elements
1. statement must be defamatory

2. defamatory statement must refer t the plaintiff
3. defamatory statement must be publish
Statement must be defamatory
Plaintiff has to proof that the statement made by the defendant consist of
defamatory words. Section 39 of the newspaper act has defined what constitute
the defamatory word. The word must injure the person reputation, expose him to
isolation and affect his trade etc. in order for the plaintiff to succeed in action of
defamation intention and motive is not applied (immaterial). The case of south
India railway co vs. Ramakrishna in this case the ticket examiner entered in the
train to check the ticket of the passenger, when he approached the plaintiff, the
plaintiff was searching for it. Ticket examiner said I think you’re travelling without
a ticket. Later he found the ticket and gave it to the ticket examiner and sued for
defamation. Held the words spoken by the guard were spoken bona fide and the
circumstance of the case, there was no defamation and the railway company
could not be made liable for the same
Innuendo- indirect and implied reference the burden of proof in innuendo lies
upon the plaintiff. It is not necessary that the world understand the secondary
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and latent meaning of the statement if the plaintiff understand then it’s enough
the plaintiff has to prove the statement carries a secondary meaning which is
defamatory.
Case of Cassidy Vs daily mirror newspaper Ltd in this case the Mr. Cassidy is
known as Mr. Corrigan and he was the famous known by this name in the racing
circle and in discriminatory nature Mrs. Cassidy was not living with his wife but
could come visit time by time. One day he went to watch a horsing race with
friend which daily news paper took their picture and posted the picture and says
Mr. carrgan and miss X recently got engage. She sues the newspaper for
defamation which means her isn’t a lawful wedded wife. Will Mrs. Cassidy be able
to establish innuendo in the case. Held the defendant was held liable because of
the caption as the innuendo defamation was established and the company had to
compensate the plaintiff.
The principle underline in this case was that “the cause of action arises as soon
as the plaintiff understand the secondary meaning of the words”
Capital and counties bank Vs Henty and sons, the defendant had some dispute
with one of the manager of the plaintiff bank and they were having problems with
one of the manager. They sent a circular to customer that in future we will not
receive cheques written by the plaintiff bank; the statement was well known, the
plaintiff company runs into bankruptcy, so they related it with what the
defendant said about them. It was HELD that the words of circular taken in their
natural sense did not convey the supposed imputation and the reasonable people
would not understand it in the sense of the innuendo suggested. There was,
therefore no liable.
The defamatory statement must refer to the plaintiff
The plaintiff to be successful has to prove the statement consist defamatory word
and must directly apply to him intention and motive is immaterial
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Circumstance that doesn’t address the plaintiff but still can amount to defamation
but reference can be made in the following heads;
i. name and address

ii. without name and address
iii. makes a statement referring/saying one person and defaming
another
Houlton Vs Jones the defendant published a fictional article in their news paper
purporting to describe a church warden at pekham being a womanizer, after
being sported in a motor festival at Dieppe. In the article aspersions were cast on
moral of fictitious person. On the basis of the statement, one Artemus Jones, who
was barrister, brought an action against the defendant, the defendant pleaded
that “artemus Jones” was an imaginary or fictitious name invented only for the
purpose of the article, they never knew the plaintiff and they did not intended to
defame him. Notwithstanding this contention of the defendant, they were held
liable
Principle in this case was that “as long as the plaintiff understand the statement
was referring to him, it is enough to amount for defamation thought the article
was fictions”
Newstead Vs London express newspaper ltd the defendant published an article

stating that “Harold Newstead, a camberwell man” had been convicted for
bigamy. The story was true of Harold Newstead, a camberwell barman. The action
for defamation was brought by another Harold Newstead, a camberwell barber.
As the word considered to be understood as referring to the plaintiff, the
defendants were held liable.
Defamation of a class or group of person
If a defamatory statement to refer to a group of person or class of people no

member from that group of class can take the action to court unless one proves
that such defamation was meant to him
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Statement must be published
The statement must be published and it comes to the knowledge of another

person than the plaintiff and the defendant. There are certain instant where a
defamatory matter gets published
1. through letters
2. through cell phones/mobile phones
3. telegram
4. through email
Defense of defamation
There are five defense of defamation
1. Justification by truth- if the defendant can proof the truth in the statement
made even though the word made by the defendant was made maliciously,
if the statement published by the defendant turn to be true, then the
plaintiff cannot recover for damages.
2. fair comment- comment is an expression of opinion on a certain facts, the
defense of fair comment to be used(satisfy) then the following 4 element
has to be meet ;
a) it must be a comment- it must be an expression on certain fact
b) it must be fair- and also bona fide

c) it must be without malice
d) it must be made for the public good- usually this covers the matters
which is legitimately concerned with people at large. Matter like
administration of government departments, public companies,
courts, conduct of public men like ministers or officers of state,
public institutions
3. Privilege- means a peculiar advantage, special advantage which engages by
a person beyond a common advantage of the other. It is the immunity of
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not proceeding in the court of law. There is certain occasion when the law
recognized that the right of free speech outweighs the plaintiff right to
reputation. The law treat such occasion is not actionable and privilege is of
two kinds namely
a) absolute privilege
b) qualified privilege
Absolute privilege
no action lies for the defamatory statement even though the statement is false or
has been made maliciously. Absolute privilege is recognized in the Tanzania news
paper act under section 42 under different circumstance;
 the matter is published by the president the government r the national

assembly in any official document or proceeding
 the matter is published in the national assembly by the president, by the
government or by any member of the national assembly or the speaker,
see article 100 of the Cap 2
 the matter is published by the order of the president or the government
or the national assembly
 the matter is published cornering a person subject to military man or
military life man or the moral discipline for the time being and relates to
his conduct as a person subject to such discipline and published by a
person having authority over him in respect of such conduct
 the matter is published during in the course of judicial or tribunal
proceeding by a person taking part therein as a judge or magistrate or
commissioner or advocate of assessor or witness or party thereto
Qualified privilege
In this cause it is necessary that the defendant statement must have been made
without malice, under section 43 of the newspaper act speaks on qualified
privilege. But there are two condition to be fulfill/met;-
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a) the statement must be made on a privilege occasion in fulfilling his
duty/discharge of duty
b) the statement made must be for the public good and without malice
4. consent- the violent non fit injuria is a good defense of defamation, if the
defendant communicated and published the statement with the consent of
the plaintiff
5. Apology- this is the defense of defamation in Tanzania which originated
form section 2 of the libel at in untied kingdom which was incorporated in
our laws of Tanzania by virtue of general application in England before 22 nd
July 1920. Section 2 of the libel act state that “when a newspaper or any
other periodical can show that the publication of a defamatory statement
was made without malice and without gross negligence and that the
publisher inserted a full apology either before the commencement of the
action or at the earliest opportunity afterward, then such apology may be
offered as a defense should the plaintiff insist on continuing action”. It must
be full and unconditional apology, it has to be noted that however that
apology is not a full or complete defense. It is more of a mitigation factor
than a defense. This is so because it reduces the amount of damages
payable to the plaintiff. So when one makes an apology one has to show
that the defamatory statement was made without malice and without cross
negligence
REMEDIES
There several kinds of damages that one can acquire;-
1. Damages
2. Injunction
3. Self help
4. Restitution of property
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Damages
When the court of law want to award the plaintiff the damages there are
numbers of factors that the court will look into;
 Social status
 Publication/number of copy
 Conduct of the defendant meaning the apology
 Failure to proof justification and motive of publication
Injunction
.It is possible for an aggrieved party of defamatory to seek an injunction in the

circumstance in which say a book or any writing which soon to be published to be
stopped from being so published. The court grants an injunction only where it is
satisfied that if does so, the plaintiff will suffer immediately and imeparable injury
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SECOND TOPIC
VICARIOUS LIABILITY
Vicarious liability is the liability of the person for the acts done by another person
may rise. This is necessary that there should be a certain kind of relationship
between the people.
This doctrine emerges from two maxims namely;
a) Qui facit per alium facit per se- means a person whose does an act through
another is deemed to have done the act himself, that means when a person
authorizes another to do act, if he commit a tort then the former will be
liable
b) Respondent superior- this means let the superior be liable, the maxim
originated in the legal presumption that all the act which the servants does
he does on the masters benefit
The doctrine can be generally found under the following relations
1. Master and servant

2. Employer and employee
3. Principle and agent
4. Master and independent contractor
Master and servant
As the general rule, master is liable for the tort of servant, butt he is not liable for
the tort of an independent contractor, two condition must be fulfill
 The tort must be committed by the servant

 The tort committed must be in the course of his employment
According to Prof. Winfield the tort falling under the cause of employment is
under the following circumstance;-
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a) Authorized act and their natural consequence
b) Unauthorized modes of doing authorized act
c) Incidental acts
Authorized act and their natural consequence
When the master authorized a servant to do an act and when such act is been
done as instructed by the servant along way he commit tort then the master will
be liable. In the case of Gregory Vs pipe***
Unauthorized mode of doing authorized act
Is when the servant is doing authorized act of his master but along the way he did
it in a unauthorized mode then the master will be liable. The following are the
circumstance where unauthorized mode of doing authorized act;-
a) Carelessness of the servant, when servant acts carelessly in performing his

master work and such cause tort then the master will be liable
b) Mistake of servant- if a servant commits a tort mistakenly when performing
the work of his master then the master will be liable. The case Bayley Vs
Manchester, Sheffield and Lincolnshire Railway Co in this case one of the
defendant porters had the duty to promote the comfort of their passenger
and help them to board the right trains. The plaintiff was in the correct
train and violently pulls him out of the carriage thus causing him injuries.
The servant was acting under mistake belief that the passenger was in a
wrong train and also he use force to pull him out of the train. The act of the
servant was held to be within the course of employment which he had the
duty to do so the defendant was held liable for the same.
c) Willful wrongs of servant- if a servant has been given instructions by his
master to do a particular work/act when the servant disobey those
instruction then the master will be made liable. The case Limpus Vs London
general omnibus Co in this case the defendant’s driver, in defiance of the
express instruction not to race with, or cause obstruction to other
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omnibuses, tried to obstruct a rival omnibus, and thereby caused an
accident. The driver had been engaged to drive and his act was a negligent
mode of driving and it was held to be within the course of employment, in
spite of the express prohibition, the defendant company was held liable.
d) Fraud of servant- the master will be liable if he/her servant have committed
fraud for his own interest when performing his work. The case of Lloyd Vs
grace, smith and co in this case Mrs. Lloyd, a widow, who owns two of
cottage, called at the office of grace, smith and Co., a firm of solicitors to
consult them as she was not satisfied with the income she was having from
her property. She was attended by the managing clerk of the company. The
managing clerk advised her to sell the cottages and sing two sale deeds for
that purpose. She was made to sign two documents which were supposed
to sale deeds; in fact they were gift deeds in favor of the managing clerk
himself. The house of lord held that Grace, Smith & Co were responsible for
the fraud of their agent, even though the agent was acting for his personal
benefit and they had no knowledge of the fraud as the fraud was
committed in course of the employment. The principle in this case was “ if
the servant is acting in the course of business, the master will be liable ,
even though the servant was acting for his own business, rather than that
of the master” but not in all cases where the servant act resulted to his
personal befit will make the company be liable, such situation have been
manifested in the case of state bank of India Vs Shyama Devi it was held
that if a customer of the bank gives some amount or cheque to the bank
employee (in his capacity as a friend) for being deposited in the account,
without obtaining any receipt for the same, the bank employee is not
deemed to be acting within the scope of his employment misappropriate
the amount or proceeds of the his personal gain, the bank cannot be made
liable for the same, because the act of the servant in this case has been
done outside the course of employment
e) Negligent delegation of authority by servant – when a servant negligently
delegates his work to another and when tort is committed, then the master
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will be made liable. The case of Baldeo Raj Vs Deowatt AIR I this case the
driver of a truck sat by the side of a conductor and allowed the conductor
to drive. The conductor caused an acciden5 with a rickshaw as a result of
which a rickshaw passenger died. It was held that the act of the driver in
permitting the conductor to drive the vehicle at the relevant time was a
breach of duty by the driver, and that was the direct cause of the accident.
For such negligence of the driver his master was held vicariously liable
f) Theft by the servant- when a servant committed a tort of theft in his or her
course of employment, his or her master will be liable, the case of Morris
Vs C. W. Martin and sons ltd in this case the defendant were the bailees of
a fur coat given to them for cleaning. They gave this coat to their servant,
Morrissey for cleaning. Morrissey stole the coat instead of cleaning the
same. It was held that the act of the servant in stealing the coat, to whom
the same had been entrusted for cleaning, was wrongful act done in the
course of employment and the defendant was made liable for the same
g) Lending of servant, if the master lend his or her servant to another person
if the servant commit an act/tort then the master will be made liable
The criteria which determined whether a master is liable of the act done by the
servant
1. Who pays the servant

2. Who has the opportunity to control the servant
3. Who has the power to dismiss or terminate the servant
4. Whose machinery tools are used
In the case of Hull Vs Lee in this case the defendants were an association who
used to supply qualified nurses to attend on sick persons. They supplied two
nurses to the plaintiff and the plaintiff himself was to pay them for their
service, due to their negligence, a hot water bottle, which was very high
heated, came into contact with the plaintiffs body and she got severely burnt,
in action against the nurses association, it was held that the nurses were the
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servant of the plaintiff herself rather than of the defendant at the material
time and, therefore the defendant were not liable for their negligence
Incidental acts
What is an incident? Is an event occurring in connection with something, when

the master authorized his servant to do a certain act and if the servant in fulfilling
such act incidentally commit a tort then master will be liable.
Employer and independent contractor
The employer cannot control the contractor unlike the master and servant where
a master controls the servant. The employer is not made liable for the tort
committed by the independent contractor, as this is the general rule but it has its
exception which as follows
1. Illegal or unlawful act- if the employer has authorized the independent

contractor to perform the illegal act and in the process tort was committed
by the independent contractor then the employer will be liable
2. Strict liability- under the doctrine of strict liability the employer is made
liable for the act committed by the independent contractor the case of
Ryland Vs Fletcher
3. Hospital cases
4. Statutory duty- if the statute required a certain work o be done in a
particular way, if the independent contractor commits a tort in fulfilling his
duty then employer will be made liable
5. Personal fault of the employer- if the employer employs an incompetent
contractor to perform a particular work and if the independent contractor
commits tort, then the an employer will be made liable
A distinction between the servant and the independent contractor
1. A servant is under control of the master but the independent contractor act
himself independently
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2. Mater is liable for the tort of the servant but the independent contractor is
made liable for his own act
3. A master terminate the employment of the servant but the employer can
not dismiss the independent contractor unless he breach the terms and
condition
Principle and agent
Principle- is a person who employs another o act for him under his general orders
and instruction
Agent- is a person employed not only by way of contract but also by way of trust
or to perform a certain act on behalf of another person (principle), in the
relationship of agency consideration is not exception
Liability of principle to tort of agency is based on the maximum “Qui facit per
Alium facit per se” means a person who does an act through another is deemed
to have done the act himself
Firm and partners
The relationship of firm and partner is of that of a principle and agent because a
firm is always answerable to the wrong done by the partners. In a firm when one
of the partner commit a tort, if such was committed in the interest of the firm
(firm business) then the firm becomes liable
When a master cannot be made liable for the tort of his servant
1. Acts outside of the scope of employment- any act done by the servant, if
does not fall within the scope of employment a master doesn’t becomes
liable. The case of century insurance co,ltd Vs northern Ireland transport
board in this case the driver of a petrol lorry, while transferring petrol from
the lorry to an underground tank stuck a match to light a cigarette and
threw it on the floor. This resulted in a fire and explosion causing to B’s
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property. It was held though the driver lighted the cigarette for his own
comfort yet it was negligent method of conducting his work the act, being
in the course of employment, A was liable for the driver’s negligence
2. Lending of the servant- when the master lend his servant to another person
and later he withdraw the control of his servant, then if the servant a tort
then the master will not be liable. Refer the case of Hull vs. Lee
3. Giving lift to unauthorized third party- if the master instruct the servant not
giving a lift to any third party, if it happens that the servant disobey that
give a lift o a third party, and a long to that tort was committed then the
master will not be liable
4. The doctrine of common employment- this was established for the first
time by lord Abioger in 1837 in the case of Priestley Vs Fowler. In this
doctrine it state that if the wrong dower and the injured person are the
servant of the same master, then the master will not be liable. Element for
the person to plea this doctrine are two which one have to prove;
 Both the wrong dower and the injured person must be of the same
master
 At the time of the accident both the wrong dower and the injured
person must be in the common(same employment)
NB; this doctrine is more in existence Tanzania because there is workmate

compensation act
5. Frolic – when a servant is instructed by his master to undertake the

business trip, but along the way he diverge the way during the time of the
trip and does another trip along the way for his own interest then through
such divagation he commit tort the master will not be liable
6. Detour – this happen when the master gives the instruction to follow on
how the work should be performed. But the servant disobey such
instruction given by the master and tort is committed then the master will
not be liable
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In order to determined the relationship between the employer and the
independent contractor the court used the following test in determining such
relationship;-
1. Controlling test
2. Organization test
3. Mutly facit test
Controlling test
It is the test used to govern the relationship between the employer and the
former independent contractor, but such test will not be applicable between the
employer and the person who is expert in a particular area (skilled and
professional people). Fleming the jurist had two views on this;
1. A person who have control ……………….
Organization test
It was introduced by lord Denning in the 20th century, the application of the test
in demonstrated in the case of honorary doctors and visiting consulters. The
organization tests raise the issue of the court and address question whether a
servant is a party of organization.
Therefore the House of Lords held that hospital is liable for the acts of the
consulting doctors “surgeon” because the doctor performed the operation in
complying with the rule and the procedure of the hospital
Multi-facit test
The court approach to determine whether the relationship is of the employee and
of the employer, a principle and independent contractor. The tests will allow the
court to look at the liability or totally of the relationship between the two
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THIRD TOPIC
EMPLOYER’S LIABILITY
The word employment has more than one meaning, currently the word
employment is used to determined the relationship between employee and the
servant
The employer liability to employee has two aspects;
1. For the harm suffered

2. For the harm caused in the course of employers personal liability to his
employee
An employer will be made liable when the injury to the employee is caused by his
personal default and this is called employers personal liability to his employee.
There four aspect which the employer can be made liable toward an employee;-
1. Employer has to provide safe place of working, section 6(1) of occupier

liability act also section 54 and 59 of the occupation health and safety act
2003
2. To provide adequate equipment and safety section 62 of the occupation
and liability act 2003, if the employee suffer any damage due to the lack of
adequate facilities, then the employer will be made liable
3. To provide a safe device of working system, the employer will be made
liable if any injury happens to his employee due to the safety device in
working system
4. Adequate supervision and safety of the employees
Employer is made liable under the following act;-
1. The occupiers liability act

2. The occupation health and safety act
3. The law reform (fatal accident miscellaneous provision)act
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4. Workmen’s compensation act 2008
Workmen’s compensation act 2008 was enacted to provide compensation to an

employee for disablement or death resorting to injury or diseases sustain in the
cause of employment. Section 4 defines who is an employee, is a person including
an impletence but excluding an independent contractor, also under section 4(b)
state that any person assists the employer to conduct business also he is an
employee. Liability of an employer toward an employee under the workmen’s
compensation act makes the employer liable under two aspect;-
1. Personal injured caused by injury arising in cause of employment

2. For the occupation diseases contracted to the employee. Occupation of
diseases is where an employee in the course of employment contracted
disease
The employee will be made liable to the injury occurred to the employee arising
out of the course of employment and arising in the course of employment.
Meaning out of the course of employment this happens when the employee got
injuries outside the course of employment but such injuries are in connection to
the employment and when we say in the course of the employment means that
the employee got injured when doing an act which is connected to the
employment.
Two things to be considered for an employer to be made liable
1. Arise out of employment- the accident is directly resulted and immediately

connected to the employment
2. Arising in the course of employment- duration of employment. An
employee is deemed to be in the course of employment when doing an act
connected to the duty of employment.
Duration of employment means a time begins his/her hours until the time finishes
his/ her work.
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Notes; the time whether unemployed is taken from his resident to work and the
time from his work to the resident is not taken into consideration as duration of
employment. General Manager best Vs Mrs. angers and the case of viani Vs
Dharamsi
Section 21 (a) to (c) of the work men’s compensation act, an employer is liable to
an employer if any accident happens to the course
Section 24 provides for accident or disease contracted out side Tanzania. If the
employee is employed in Tanzania and if he/she contacted any accident or
diseases then employer will be liable. Section 25 provides for the accident or
diseases contacted in Tanzania
Section 46 of the act provides how much compensation to be given to a person

who suffers temporary or permanent disablement
Section 48(4)(a) provide for permanent disablement for hundred percent
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TOPIC FOUR
PRODUCT LIABILITY ACT
In Tanzania there are no product liability laws and no consumer protection act,
there is only different legislation that governed consumer namely;
 Tanzania bureau of standard act

 National standard of institute
 Object standard specification- under take measures for quality control of
production, it comes into force in 1976 and it was been repealed and
replaced by standard act No 2 of 2009
In the chain of production there are manufactures, whole seller or distributor,

retailer, seller and consumer
When the consumer is injured because of the product he purchased there he can
bring an action against the manufacturer as the case of Donoghue Vs Stevenson,
duty of care cases. And it was ruled and raised b negligence, then reaches the
consumer and he bring the suit against the manufacturer due to the fact that the
manufacturer is owed the duty of care.
Position in Tanzania
The main consumer protection act in Tanzania is the fair competition act of 2003
which promote trade and consumer on misleading in market in competition in
trade and commerce, there is no provision such as product liability, the act is not
strictly implemented. Tanzania food drugs and cosmetic act 2003 this protect the
consumer or customer
In Tanzania there are no product liability laws and no consumer protection Act,
there is only different legislation which govern the consumer namely
 Tanzania bureau of standard 1973

 National standard institution
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Product liability is the area of the law in which manufacture, distributor, retainer
are made liable.
The common associated claim of product liability can be group under three heads
 Negligence
 Strict product liability
 Breach of warrant
Strict product liability
The manufacture will be made liable for defective product even though there is
no negligence in making the product because under strict liability the focus is on
the product and not the manufacturer. For the plaintiff to succeed on the issue of
strict product liability, he has to prove two things
1. Product was defective

2. The defective product caused injuries to plaintiff
3. The product was unreasonable dangerous condition
4. The seller expected and intended that the product will reach the consumer
without any changes
5. The plaintiff property was damaged because of the defective product
The manufacturer and the seller to be made liable the following must be meant.
1. The defective product sold by the defendant

2. The defendant is normally engage in the business of selling or distributing
the product in question
3. The product is unreasonably dangerous to the use or consumer because of
defective condition of the product
4. The plaintiff should have suffered some harm physical to himself as result
of manufactured product
5. The product must not have be substantially changed at the time sold and
the plaintiff suffered injured
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Under strict product liability there are three head to be discussed
1. Manufacture defect
2. Design defect
3. failure to warn
Manufacturing defect; are those occurs during the process of manufacturing, this
can be visible or invisible. Manufacturing defect can also be arisen from food
products
The manufacturer will liable only for the foreign contamination and not natural
contamination.
For the plaintiff to succeeded in suing the manufacturer of the defect product, he
has to prove
1. the defendant manufactured and distributed the product at issue

2. the product contained the relevant defect when left at the defendant
possession
3. plaintiff suffer injuries
4. plaintiff injuries were caused by the defective product
Design defective; as the flow we see in the product, the way designed, for the
person to succeed under designed defect has to prove the following
1. the manufacture designed the product as intended

2. the designed of the product is dangerous for his or her intended uses
3. the plaintiff has to prove that there was another alternative designed that
is safer
4. the alternative was not coasting much
5. the plaintiff injured and suffered loss when using the product as intended
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Failure to warn
Manufacturer fault to give sufficient instruction to the product goes to the

consumer. It has to be easy, under stable to the user and it has to be visible to the
user
If the manufacturer fails to give warning to the consumer about his or her
product, then he will be made liable.
Note it is the duty of the manufacturer to warn the consumer, if he fail and
anything happens to the consumer then the manufacturer will be made liable.
Breach of warrant
Warrant is the statement made by the manufacturer concerning the product

during a commercial transaction. Breach of warranty- it means the seller fault to
fulfill his promise made concerning the quality or the type of the product. I
product liability breach of warranty arises in one of the three ways.
1. Breach of express warrant

2. Breach of the implied warrant of merchantability
3. Breach of implied warrant of fitness of a particular purpose
Breach of express warrant
Are the words or statement spoken or made by the manufacturer or the seller in
the negotiation. At the first warrant is clear that at the time of selling goods as it
is safe and has no any defect.
Express warrant had distinguished from other warrant, the promise made by the
seller which include representation of the
product……………………………………………………………..
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Implied warrant of merchantability
Merchantability the product or goods is fit for the general use of that product,
there are three essential elements
1. Without any defect

2. Marketable
3. Reasonable, fitness for general purpose
Implied warrant merchantability it means the good is fit for the purpose of which
it is produced for. Or it means that the product purchased is good for the purpose
which fit for the purpose of which it is produced for.
Implied warrant of fitness for a particular purpose
Is when the seller knows or has reasons to know that the buyer is acquire the
product for a particular purpose and the buyer is relying on the skills of the seller
to purchase that product
If the seller will deceive the buyer from giving the product that he required, then
the seller will be breaching the implied warrant of fitness for a particular purpose,
and the remedies is to return back the product to the seller Eg you purchase a
sum sang but you have been given LG product.
Note; under breach of warrant a consumer can claim damages not only under tort
but also under the breach of contract.
DEFENCES UNDER PRODUCT LIABILITY
1. Voluntary assumption of risk.
The defendant has to show that, the plaintiff knew that there was a risk in using
that product, but he appreciated the risk and suffered injuries, under this
circumstance the defendant will not be liable.
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2. Misuse of product by plaintiff
The defendant has to prove that the plaintiff used the product for other
reason/purpose rather than it was made for. There a certain situation where the
manufacturer can be sued for the misuse of the product. It is where the
manufacturer had an opportunity to foresee that the product could be misused. If
the manufacturer was on the position to foresee the risk then he can be liable.
3. Contributory negligence
The defendant had to prove that the negligence of the plaintiff caused him to
suffer damage when using the product.
4. Knowledgeable user
Every manufacturer has the duty to warn the consumer about the danger of the
product. But this duty of manufacturer to warn the consumer does not rely on all
consumers. If the knowledgeable user suffers damage from the product he/she
knew about it risk then the manufacturer will not be commonly known dangers
The defendant has to prove that the plaintiff was aware with the risk in the use of
the product since the risk is commonly known to everyone.
5. Change of modification
6. Common known danger
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TOPIC FIVE;
REMEDIES
The expression remedy- it is sought of relief to indemnify the injured person,

when the tort is committed, the suffered party will seek for relief and this relief is
called remedy
Remedies are classified into two
1. Judicial remedies
2. Extra judicial remedies
Judicial remedies
Are those sought of relief which the injured party acquire it before the court of
law by instituting a case.
Judicial remedies are of three kinds
1. Damages
2. Injunction
3. Specific restitution of property
1) DAMAGES
Damages are the compensation to the injured party; there are different types
of damages, which are as follows
1. General damages- are generally from the defendant wrongful action where
can be claimed directly from the defendant wrongful action. It can be
claimed for personal injury/damage example physical, mental loss or
reputation suffered by the plaintiff
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2. Specific damage;- this is the economic damage, it is the loss that can be
calculated, the law does resume that the plaintiff suffered injuries but the
plaintiff has to prove what he/she suffered exactly.
Note; under the contract the remedies claimed is only specific but for
general damages it is unless and until the plaintiff prove that he/ she
suffered damages/ injuries physical or mental injuries
3. Nominal damages; - the court award nominal damages to the plaintiff not
by the way of compensation but by the way of recognizing the legal right
that has been infringed by the defendant. It is not awarded because the
plaintiff has suffered monetary loss but only violation of legal right that
entitle to him.
4. Contemptuous damages/ contemptuous damages;- are awarded in a
situation when the court forms a very low opinion about the plaintiff claim,
or if the court is on the opinion that this case should not be brought to
court in first place because there is no case at all, under this circumstance
the court may decide to award a very low damages they think fit
5. Compensatory damages; - are awarded by the court asking the defendant
to compensate the equal value of money suffered by the plaintiff. This can
be claimed for personal injuries and for damages to property; under
compensatory damages on the property the court may ask the value of the
property. There are certain factors the court take into consideration when
awarding compensatory damages.
 The victim age
 The extent of the injuries suffered
 The victim capacity before the injury
 Loss of income
 Impact of the injuries on the victim life time
6. Aggravated damages; - when a tort committed in aggressive manner, then
the court is suppose to grant aggravated damages. The court will consider
the way and manner in which the plaintiff suffered. The court will ask the
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wrong doer to pay little more compared to the value suffered by the
plaintiff.
7. Punitive damages;- is also known as exemplary damages or vindictive
damages, in such kind of situation the court will ask the wrong doer to pay
in excessive loss suffered by the plaintiff, the reason is to punish the
wrongdoer and to prevent the existence of such wrongful action in future.
8. Prospective damages; - means the court can calculate the future loss of the
income of the plaintiff for him / her to be awarded the damages. There is a
means which the court uses to calculate the future loss that the plaintiff
will be suffering award from the defendant wrongful act which has not
actually resulted at the time of the decision of the case.
2) INJUNCTION
An order from the court to stop a person from continuing what he/she is doing. A
judicial process where the court is required to stop someone from doing
something, it is discretionary remedies, it cannot be claim as a matter of right, it is
the discretionary of the court to grant damages. It is clear that there is certain
kind of remedies it has to be awarded then this injunction cannot be awarded
The objective of granting injunction is to prevent
1. A breach of contract
2. A tortuous act
3. To restrain a judicial proceeding
4. To prevent breach of obligation
Kinds of injunction
1. Interim/temporary injunction;- this is granted before the determination of

the case, it is granted when the suit is still in hearing; meaning the suit has
not commence
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2. Permanent injunction;- Is granted by the court at the final hearing of the
suit, in a suit when an interim injunction is granted by the court can be
converted to a permanent injunction
3. Prohibited injunction;- it is an order of the court restraining a defendant
committing a wrongful act which interference the plaintiff right e.g. in
trespass cases, the right to way
4. Mandatory injunction;- it is an order of the court asking the defendant to
do positive act and restore the position of the plaintiff in which condition
he was before bringing an action to the court of law.
3) SPECIFIC RESTITUTION OF PROPERTY
When a person is wrongful disposed of his property because of the wrongful act
of the defendant, here the plaintiff is claimed for the damages of his property but
to recover the property, the plaintiff is entitled not to claim for damage but to
recover the property and restore of his property. It is not available for service but
only for property
EXTRA JUDICIAL REMEDIES
Are these where the injured person can get help without instituting an action
before the court of law, they are known as self help remedies,
There are various ways where the plaintiff can get extrajudicial remedies.
1. Abetment of nuisance;- Is the removal of a nuisance created by the

defendant, in a certain circumstance the plaintiff can remove the nuisance
such as branch of overhanging tree of mango but handling mango fruits to
the owner.
2. Expulsion of a trespasser;- in such cases the occupier of the land, the
owner (owner) can tell the trespasser to evict himself and lastly if he/she
refuses then he can use reasonable force to evict him/her
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3. Re-entry of land; - a person who has wrongly ejected from his land he can
again re-enter into his land in a peaceful manner without using forceful
means.
4. Reception of goods and chattel;- when a person is wrongful dispose of his
goods and chattel without using force to take them, when the plaintiff
enters into the defendant land to take its own goods and chattel, then the
plaintiff cannot sue the defendant for trespass.
5. Displace damage feasor;- when the chattel or cattle of a person enters into
a premises and cause damage then you can detain such properties for you
to get damages that caused by that chattel or cattle
Measures of damages
The express measures of damages means the method, rules, standard or

technique by which remedies can be covered in the quantum of the suit. The law
doesn’t mention measures in tort law. In case of death, the money cannot
substantially anything, so money alone cannot compensate the grieved that are in
persons
Three ways in which can be used by the injured party to claim damages
1. Physical pain and suffering and loss of enjoyment of life

2. Actual pecuniary loss resulting in any expenses unreasonably incurred by
the plaintiff
3. Loss of consortium- means loss of companionship
4. The probable future, loss of income by reason of incapacity to work
Methods used by the court to award remedies
1. Interest method- when a person suffers any injuries because of the

negligence of another, when he/she file a suit in the court of law,
immediately he can be given compensation. The dependent may be paid
such lump sum the interest from which would be equivalent to the loss
suffered by them, and such sum will be awarded by way of compensation.
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2. Lump sum method- the actual loss for all the future years of expected life,
has to be added up it has to be divided up by………… the rest can be
awarded as damages. OR is the actual loss for future loss of expected life
3. Multiplier method- according to this theory, the likely further loss is
assessed by multiplying the likely loss due to occur every year with a
multiplier which indicates the number of years for which the loss is likely to
continue. Certain features like the age of the deceased and the defendant
may have to be taken into account to determine the multiplier to be used
in assessing compensation payable.
Egg shell skull rule
Is also known as the thin skull rule or you taking your victim as you find him/her.
Established the legal doctrine used in tort. The rule makes a person liable for the
consequence resulted from his/ her action, activity that caused injuries to another
person even though a person has been suffering previous injury like medical
condition, injuries of he/her will be still made liable.
A tortfeasor cause injury to another person whether he/she was aware with his
condition or not but he will be made liable for the injuries caused to the plaintiff
Two point to note under this egg shell skull rule
1. Foreseability he will be made liable though the event was whether

foreseeable or not, whether he had an opportunity to foresee the injury or
not.
2. Whether he had intention or not, still he will be made liable
Case of smith Vs Leach Brain and Co
Note; egg shell skull rule made a person liable for his act which cause injuries to
another person. Under the egg skull shell rule, the intention and foreseeable are
irrelevant. It does not matter whether the tortfeasor knew the medical condition
of the plaintiff or not or whether he was in position that makes him not foresee
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what the consequence or whether the tortfeasor had intention or not still he will
be still made liable. The case of vosburg Vs Putney
The exception to the rule
1. Intervening act- if the injuries to the plaintiff is not immediately from the
defendant act but a separate situation has caused the injuries to the
plaintiff then the defendant will not be made liable under the egg shell skull
rule, so if the injuries to the plaintiff is not an immediately act of the
defendant but intervening act of the third party then the defendant will not
be made liable.
2. Plaintiff who harms himself- if a plaintiff harms himself then the defendant
cannot be made liable.
Novus actus intervenes;
Is the term used in the context of causation, the maxim means a new intervening
Act. Intervention of human activities between a defendant and its consequence, if
there is new intervening act that broke the chain of the defendant wrongful act
then the defendant will not be made liable, if the chain of consequence of the
defendant wrongful act is being intervened by the act of the third party then the
defendant will not be liable. The case of R Vs Jordan (it was maxim cannot be
used because there is no broke of chain of causalities)
The case of Erneh Vs kingston and Chelsea and west minister Area Health
Authority in this case the doctor was made liable due to the fact that there was
no intervention of new act. Also there is a case of Scott Vs shepherd and the case
of Haynes Vs Harwood
Notes; children are not liable under tort
In order to determine whether the chain of causation is being intervened (broken)

two test are applied
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1. Probability test
2. Isolation test
Probability test;
If the consequences resulted from the defendant that is probable and foreseeable
then the defendant can be made liable. But if the consequence as improbable and
unforable then the defendant cannot be made liable
Isolation test
According tit e test, where the wrongful act and its consequence of the defendant
do not have any connection with the act of the third party then the defendant
cannot be made liable. The test is sometimes called nova causa intervenies this
maxim have some exception;
1. If the intervening act is being procured intentionally by the defendant the

maxim will not apply
2. If the intervening act is such that it could be reasonable anticipated by the
defendant then the maxim will not apply
3. If the intervening act is the pursuance of a duty then the maxim cannot
apply
But for test rule;
This is the best rule to determined the causality of the wrongful act, thus test is
used to identify whether the wrongful act of the defendant caused injury to the
plaintiff or not. “if the alleged damaged is not form the wrongful act of the
defendant the remoteness of damage will not arise. The case of Robinson Vs post
office (the but for test cannot apply and the doctor cannot be made liable)
another case of chester Vs Afsher and the case of Barnett Vs Chelsea and
kinsington Hospital management and lastly the case of Baker Vs Willoughby.
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TOPIC SIX;
REMOTENESS OF DAMAGE
The injured party is not entitled to recover any damage if the injured is resulted
from the remoteness damage. Only the damage which are promiximate can be
awarded damages. The doctrine of remoteness of damages is that if a person
suffers damage then we have to know if it’s approximate or remoteness damage
so as to make the wrongdoer liable
Under the doctrine of remoteness only the approximate damage can be awarded,
damaged to the injured party and not the damage which is too remote. The
doctrine of remoteness of damage is based on the maxim injuria non remota
causa sed proxima spectatus, which means the immediate are not the
remoteness cause of the damage suffered by the injured party.
Under the maxim, the injured party is entitled to recover damage from the
directly related act of the wrong doer.
There are two test used for awarding damages
1. Directness
2. Reasonable foresight
Directness- a person is liable for all consequences of his/her wrongful acts

whether he could foresee it or not, because of the consequence followed by his
direct wrongful act. The case smith Vs London south western railway co. and the
case re-polemiss and furness withy and Co ltd.
Reasonable foresight- according to this test if the consequence of a wrongful act

could have been foreseen by a reasonable man they are not too remote and the
party will be liable for the wrongful act. According to the test if the defendant
could foreseen the consequence of the wrongful act, then he will be liable but if
the defendant could not foresee then he will not be made liable.
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Case;
 hughes Vs lord advocate

 S.C.M (UNK) LTD Vs W.J. Whittal and sons
 Oversee Tankship (UK) LTD Vs Morts dock and Engg Co. LTD ( the wagon
mound case No 1)
Doctrine of remotes of damages
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TOPIC SEVEN;
NEW TOPIC NUISANCE
The term nuisance is defined from the French term nuire and from the Latin word
nocere which means damages to do harm, to cause hurt, to annoy. Ordinary the
term means disturbance but in tort any act, place which cause or is likely to cause
danger, injury to the sense of sight, smell or in the sense which is likely to cause
injury to the property of a person. Eg loud sound of music in or escape of gas in
the factories polluting the vicinity of the area, anything escape from one person
tends to cause injury to another person, this is called nuisance.
According to prof. Winfield nuisance is termed as unlawful interference within

the peaceful enjoyment of the land of the other or some right over it or anything
in connection with it
According to salmond; nuisance consist in causing, allowing without lawful

justification, and the escape of any deterlous from his land into the land of
another.
The law of nuisance is based on the maxim sic utere uto ut alienum non laedus
which means every one must use his own property and not to damage another
OR everyone should use his property for his benefit without causing any damage
to another.
Two kinds of nuisance
1. Private nuisance
2. Public nuisance
Public nuisance- is an act or omission which cause injuries to the public at large
and to the people in general. Under the common law and in Tanzanian law
nuisance is an offence
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The general principle of law is that no group of people or individual is entitled to
bring before the court of public nuisance unless suffered damage then is entitled
to bring an action for public nuisance.
Two condition for an individual to bring an action in the court for public
nuisance;
1. He must have suffered injury beyond the injury suffered by the public
2. The injury must be direct and it should not be a mere consequence of
injury, but if there is a divergence way to overcome the nuisance then
he/she cannot sue for public nuisance.
Cases;
 Dr Ram Raj Singh Vs Babulal in this case the defendant created a brick
grinding machine adjoining the premises of the plaintiff, who was a
medical practitioner. The brick grinding machine generated dust, which
polluted the atmosphere. The dust enter the consulting chamber of the
plaintiff and case physical inconvenience to him and patients, and their
red coating on clothes, caused by dust, could be apparent visible. It was
HELD that special damages to the plaintiff had been proved and a
permanent injunction was issued against the defendant restraining him
from running his block grinding machine there
 Campbell Vs Paddington corporation in this case the plaintiff was the
owner of a building in London. The funeral procession of King Edward VII
was to pass from a high way just in front of the plaintiff building. Due to
that the plaintiff collects certain payment from certain persons and
permitted them to occupy seats in the first and the second floor of her
building. Before the date of the said procession the defendant
constructed a stand in front of the plaintiff building so as to enable the
member of the corporation to see the procession, this structure
obstructed the view from the plaintiff building. And because of the
obstruction the plaintiff was deprived of the profitable contract, she
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filed the suit against the corporation which was public nuisance, had
cause special loss to her so it was held that she was entitle to claim
compensation.
 Rose Vs Milles in this case the defendant wrongly moored his barge
across a public navigable creck. This blocked the way for plaintiff’s
barges and the plaintiff had to incur considerable expenditure in
unloading the cargo and transporting the same by land. It was HELD that
there was special damage caused to the plaintiff to support his claim
Private nuisance- if the nuisance causes the damage to the individual or group of
individual it is called private nuisance like noise, dust, light
Underhill define private nuisance as some unauthorized of use a man’s property

causing damage to the property of another or some unauthorized interference of
the property of another but not amount to trespass
Winfield is an unlawful interference with peaceful use or enjoyment of his land.
Element constituting private nuisance
A. In civil action; it must be a civil wrong, then the plaintiff entitle to file a
case, the state cannot establish a case against the wrongdoer
B. Unlawful/ unreasonable interference. The plaintiff has to prove there has
been a substantial interference which stops his peaceful enjoyment of his
property.
 The interference must be unlawful and unreasonable
 Reasonableness is taken as a test in nuisance, this interference must
not be too small, it must cause inconvenience and injury to the
property the case of Hollywood silver fox farm Ltd Vs Emmett the
plaintiff’s Hollywood silver fox farm Ltd had the business of breeding
silver fox on their land. The vixen of this animals are extremely
nervous during the breeding season and if they are disturbed in any
way either by loud noise or any other means may miscarry or kill
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their own young ones. Here the defendant maliciously cause gun to
be fired on his own land but as near as possible to the breading pens
with the view to cause damage to the plaintiff. But the firing of gun
took place on the defendant land which was entitled to shoot. It was
held that the plaintiff was entitled to an injunction and damage,
being at your place is not the reason to vex, disturb and harass.
C. The interference with the use and enjoyment of land. Interference may
take place into different ways;
 Injury or damage to property
 Injury to comfort or health of a person
Injury or damage of property
Any nuisance where by injury is caused to the property of a person, then

actionable action of nuisance will arise.
See the case of wood Vs Conway Corporation and also the case of Holling Vs
Yorkshire Transaction Ltd
The issue whether smoke, gas, vapor, steam can amount to nuisance on the party
of the defendant. In this case the defendant was held liable because of
committing a tort of nuisance and negligence, so vapor, smoke, gas can amount to
nuisance when they cause damage/ injury to other person
Injury to comfort or health of a person
Any act which produces noise cannot be nuisance if done for ordinary common
use of a thing example noise during the repairing of a house or construction, but if
the noise is made maliciously or intentionally then it can amount to nuisance, also
the accumulation of sewage which causes injury to a person amount to nuisance.
Injury to comfort health to a person takes place in the following ways.
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1. Obstruction of light
Right to light is acquired by way of prescription; every person is entitled to light

which makes a person to live comfortably. If a person infringes that right of light
then he commits the tort of nuisance. The infringement of light has to be in a way
that when infringed has occurred there must be no sufficient light which will
ensure the plaintiff to carry on his business but if there will be sufficient light
then there could be no infringement of right to light. The case of Colls Vs Homes
and colonial store Ltd the construction of building by the defendant only
diminished the light into a room on the ground floor, which was used as an office
and where electric light was otherwise always needed. It was held that the
defendant was not liable, it was not sufficient to constitute an illegal obstruction,
that the plaintiff had, in fact, less light than before; in order to give a right of
action, there must be substantial privation of light.
Whether there is a deprivation of light, the following has to be identified
 Whether the sufficient light is obstructed

 Whether the obstruction of light prevent you from carrying on your
business
In the infringement of obstruction of light, the only remedy is to apply for

injunction and it has to be granted only when other kinds of remedies is not
available.
2. Pollution of air and water
Right to air is a natural right, when there is air pollution amount to discomfort to
person, then it amount to nuisance.
Natural stream- every person has the right to water but he should not exhaust the
water into his land and deprive the other from enjoying the use of such water
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3. Noise
Any act which causes noise and that voice cause annoys to the comfort of a
person health then amount to nuisance. Every noise cannot amount to nuisance,
but only to those noise which create annoys and disturbance. No person has the
right to create noise to his or her own land.
The following criteria can be used to determined whether noise created can
amount to nuisance;-
 The mode in which the noise is been performed

 The duration of time (is temporary or permanent)
 The place the case of Christie Vs Davey the defendant, being irritated by
considerable amount of music lessons by the plaintiff, a music teacher,
living in the adjoining house, maliciously caused discomfort to the plaintiff
by hammering against the parting wall, beating of trays, whistling and
shrieking. The court granted an injunction against the defendant where the
judge said “in my opinion, the noise which were made in the defendant’s
house were not of legitimate kind”
D. Damages
There are two things to be known in here;-
 In public nuisance- the plaintiff has to prove that he has suffered special
injury in order to bring an action of nuisance
 In private nuisance- the law will presume that the plaintiff has suffered
damage.
Notes; if there is an obstruction on the high way, for a nuisance to arise there
should be an injury to a person which resulted from that obstruction and then
liability will arise.
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In the case of Noble Vs Harrison the branch of a beech tree growing on the
defendant’s land hung on the highway to a height of about 30 feet above the
ground. In fine weather, the branch of the tree sudden broke and fall upon the
plaintiff vehicle which was passing along the highway, for the damage to the
vehicle the plaintiff sued the defendant. It was held that there was no liability for
nuisance because the mere fact that the branch of tree was overhanging was not
nuisance nor was the nuisance created by its fall as the defendant neither knew
nor could have known that the branch would break and fall, so there was no
liability.
Projection in the high way
This will not amount to nuisance unless and until a person is injured by such
projection; mere projection on the high way will not make the occupier liable until
it results into injury to a person. The occupier will be made liable if he knows the
effect of such projection but not taking any steps to overcome the injury that will
be resulted from that projections
Defence of nuisance
1. Statutory Authority;- if a defendant is performing an act under statutory

authority and cause damage to the plaintiff, then the defendant can plead
the defence of statutory authority e.g. Construction of railway or road
(especially to the issue of noise)
2. Volent non fit injuria
3. Law of prescription;- if the plaintiff right has been infringed and not raise
an objection with regards to the infringement (if he remain silent) this
means he allows the defendant to continue doing the nuisance. In simple
words if the defendant have committed/ done a certain nuisance and the
plaintiff has the right to go to court and to stop the nuisance but if he don’t
do so then he might waive his or right to sue at the future.
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4. Contributory negligence;- but this is a partial defence, the defendant
cannot rely this as the basis of his defence
Remedies under tort of nuisance
1. Injunction;- this can be granted only where the plaintiff cannot be

compensated in terms of money
2. Damages;- this is when the injury can be calculated in terms of money
3. Abatement of nuisance
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TOPIC EIGHT;
TORT OF INTIMIDATION AND INDUCING BREACH OF CONTRACT
A contract means legally binding agreement. If any party breach the term of the
contract will be liable to pay damages to the other party. If the third party induces
any of the party to breach the contract, there is where the tort of intimidation will
arise (breach of the contract in tort).
In tort, the aggrieved party can sue the third party for the breach of contract. The
case of Lumley Vs Gye laid down three essential point under the principle;-
1. There must be interference in the execution of the contract

2. The interference must be immediate
3. The interference must be direct
The principle in the case of Lumley Vs Gye every person who enters into contract
with another has a right to perform it and no 3 rd person should induce any of the
parties to the contract breach the contract. Because interference of performance
contract is the violation of the legal right, if the third person interference the
contract.
Two elements under tort of intimidation of breach of contract
1. Direct inducement
2. Direct interference affecting others business
Direct inducement; - when any person directly, interfere, inducing breaching of

contract
Direct interference affecting others business; - no third person is entitled directly

to interfere the performance of the contract between two people which affect
the performance of the business between the parties. The case of G. W. K. LTD Vs
Dunlop Rubber Co. Ltd G.W.K Ltd, who are the manufacturer of cars, had entered
into a contract with A. Co. that all the car manufactured by the former were to be
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fitted with the tyres manufactured by the latter whenever the car was sent to
exhibitions. When the cars were sent to an exhibition, Dunlop Rubber Co.
knowing about the above stated contract, secretly removed such tyres form two
of the cars and replaced them with the tyres of their own manufacture. The
defendants (Dunlop Rubber Co) were held liable toward A. Co for interference
with the contract and towards G.W.K. Ltd for trespass to goods.
Defence under the tort of inducing breach of contract
1. Mere advice;- the defendant has to prove that he/she advise only to the
defendant (other party) and not interfering the contract between the two
parties
2. Null and void agreement;- if one party enters into contract is a minor and if
the third party interference into the contract, then the third party will not
be liable since the contract is not valid
3. Justification;- if the defendant has enough justification reason for
interference then he/she can be exempted from liability
Tort of intimidation
There are three elements under tort of intimidation
1. Threat to do unlawful act

2. Submission to the threat
3. Damage
The wrongful of intimidation has two kinds or forms
1. Intimidation of the plaintiff himself

2. Intimidation of the third party which result to the injury/ loss to the plaintiff
The case of Rookes Vs Barnard lord Reid while delivering a judgment laid the
principle as follows “I see no difference in principle between a threat to break a
contract and a threat to commit a tort, he said threatening a breach of contract
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may be a much more coercive weapon than threatening tort, particularly when
the threat is directed against a company or corporation”
TORT OF PASSING OFF GOODS
What is passing off goods? It means a trader knowing or unknowingly to allow his
goods to pass into the customer on the name of reputed brand of another into
the market. Or the trader knowingly or unknowingly allows his goods to pass into
the customs into the name of reputed brand of another into market.
The objective of tort of passing off goods is to protect the interest of the
manufacturer and the third party. The case of Ellora industries Vs Banarsi Dass
Air it was held that the plaintiff’s were entitled to injunction because it was clear
case of passing off and also of infringement of the plaintiffs’ registered trademark.
Element of the tort of passing off goods
1. There must be clear distinction between the goods of the plaintiff and that
of the defendant
2. The trader must have been used deceptive tricks to pass his goods to other
company’s name and cause damage. This is whether the defendant pass off
goods with good will or evil motive still will be liable
Malicious false hood and injurious falsehood
False hood means violation of truth, malicious false hood consists in making
malicious statement to the third party affecting the pecuniary interest of the
plaintiff
Distinction between malicious false hood and the defamation
Similarity
1. They involve or injure the reputation of the plaintiff

2. Both make false statement to the third person (party)
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Distinction
1. Malicious false hood affect the pecuniary interest of the plaintiff whereas
defamation affect the reputation of the plaintiff
2. In malicious false hood motive is an element whereas in defamation motive
is not an element
3. In malicious false hood there must be slander whereas in defamation it can
in form of slander or libel
4. There is no defence of privilege in malicious false hood whereas in
defamation privilege can be used as the defence
Distinction between passing off and deceit/fraud
1. Deceit includes all work of life including business while in passing off it
deals only with or affect goods and service (trademark)
2. Under deceit plaintiff claim for damage but under passing off the plaintiff
claim for damage and injunction
3. Under deceit the issue is actionable per see while under passing off its not
actionable per see the plaintiff has to prove the damaged
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PREPARED BY

TOPIC ONE; NATURE AND CONCEPT OF TORTUOUS LIABILITY

It is important branch of law as it was originated from common law particularly in

MEANING; a tort is simply a civil wrong arising from an act or omission of an

According to Professor P. H. WINFIELD, he define tort as a tortuous liability which

 This duty is to what person is generally. It is very difficult to state the

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 Tort is a civil wrong

Generally, therefore a tort is a wrong or civil wrong which is redressible by an

Kinds/ types of tort

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Actionable per se on proof of damages

1. There must be a breach of duty or commission of an act- this is where a

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There are two relevancy in tort namely malice and motive

Two forms of malice

I. Malice in fact; is unknown as express malice, it is doing of an act with ill-

Motive simply means something which is inside or stimulates a person to do an

THE NATURE OF TORT

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Tort and breach of contract

Tort is an infringement of right in reum of a private right of individual where

Tort and breach of trust

1. In tort damages are unliquidated WHILE trust damages are liquidated

Tort and the quasi contract

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It is not basically contract entered by parties intentionally, it is resembling and it is

1. In tort is not any kind of contract WHILE quasi contract is a hypothetical

Doctrine of strict liability

 Whether there is was any negligence in part of the defendant

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ELEMENT OF STRICT LIABILITY

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Defense of strictly liability

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FOUNDATION OF TORTUOUS LIABILITY

 2ndtheory-whether it is the law of torts, this was supported by prof salmond

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Salmond theory is also known as the PEGION HOLES THEORY. According to

According to Salmond “just as a criminal law consist of a body of rules

ANALYSIS FROM THE THEORIES

Therefore each theories is correct depending on its point of view

DEVELOPMENT OF LAW OF TORT IN TANZANIA

1. Lack of activism on the part of people, in advance countries people

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(General defenses or exception)

JUSTIFICATION OR DEFENCES IN TORT

 Volenti non fit injuria

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Condition in order one to plea the defense of violent no fit injuria

1) The consent must be free

Exception to the maxim of violent non fit injuria

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Two important elements needed for this defend to be applied

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