L131 Tort Module Guide

The University of Zambia
in association with
ZCAS UNIVERSITY
BACHELOR OF COMMERCIAL LAW
LAW OF TORTS
MODULE
LLB
Level 1
Semester
Author: Chaponga Nguluwe

Copyright
ALL RIGHTS RESERVED
No part of this publication may be reproduced, stored in a retrieval system, or

transmitted in any form or by any means, electronic or mechanical, including photocopying,
recording or otherwise without the permission of the Zambia Centre for Accountancy
Studies.
i|Page
TABLE OF CONTENTS
ALL RIGHTS RESERVED ....................................................................................................... i

1.0 INTRODUCTION ......................................................................................................... 1
1.1 MODULE AIM .............................................................................................................. 1
1.2 OBJECTIVES ................................................................................................................ 1
1.3 ASSESSMENT DETAILS ............................................................................................ 1
1.4 READINGS ................................................................................................................... 2
Prescribed Reading ................................................................................................................ 2
Recommended Reading......................................................................................................... 2
1.5 TIME FRAME .................................................................................................................... 2
1.6 STUDY SKILLS ................................................................................................................. 2
1.7 NEED HELP? ..................................................................................................................... 3
2.0 UNIT TWO: Introduction to Tort .................................................................................. 4
2.1 INTRODUCTION ........................................................................................................... 4
2.2 AIM ................................................................................................................................. 5
2.3 OBJECTIVES ................................................................................................................. 5
2.4 TIME REQUIRED .......................................................................................................... 5
2.5 REFLECTION ................................................................................................................ 5
2.6 TYPES OF TORT ........................................................................................................... 6
2.10 ACTIVITIES ............................................................................................................ 14
2.11 SUMMARY ................................................................................................................ 15
3.0 UNIT THREE: Different types of torts
………………………………………………………………………………….14
4.0 UNIT FOUR: Trespass to Person Part

1……………………………………………………………………………….21
5.0 UNIT FIVE: Trespass to Person Part

2…………………………………………………………………………………28
6.0 UNIT SIX: Trespass to Person Part

3……………………………………………………………………………………34
7.0 UNIT SEVEN:

Defamation……………………………………………………………………………………
……………. 41
ii | P a g e
8.0 UNIT EIGHT: Strict Liabilty
……………………………………………………………………………………………….49
9.0 UNIT NINE:

Nuisance………………………………………………………………………………………
……………….57
10.0 UNIT TEN:

Negligence……………………………………………………………………………………
………………..70
11.0 UNIT ELEVEN: Professional

Neglience……………………………………………………………………………..89
12.0 UNIT TWELEVE: General Defences and Remedies

…………………………………………………………..94
iii | P a g e
1.0 INTRODUCTION
The law of Torts is vast and one of the most interesting areas of law one can study.
Tort is unique in the sense that first and foremost it is civil law but also it only
deals disputes between individuals and the state is never involved.
1.1 MODULE AIM
The course introduces the students to the foundation of tortious liability and
the law of tort. It introduces various concepts explore how each has its own
unique elements hen it come to putting a claim forward and how the process
works.
1.2 OBJECTIVES
By the end of the course, students should be able to:
a) demonstrate knowledge of concepts in the law of Torts

b) explain the characteristics of tortious liability
c) discuss the basic principles of negligence
d) Demonstrate understanding of remoteness of damage and contributory negligence
e) explain the element that constitutes professional negligence
1.3 ASSESSMENT DETAILS
 Continuous assessment 30%

 Test 20%
 Assignment 10%
 Final examinations 70%
 Total 100%
1|Page
1.4 READINGS
Prescribed Reading
 Mvunga, M. P and Ng‟ambi, S. P., (2011), Torts, Lusaka:

Unza Press
 Rogers, E. W., (1994), Winfield and Jolowicz on Tort,
14th Edition, London: Sweet and Maxwell
Recommended Reading
Clerk, J.F and Lindsell, W.H. B., (1989), Clerk and Lindsell on Torts, 16th
Edition, London: Sweet and Maxwell
Weir, T., (1988), A Casebook on Tort, 6th Edition, London: Sweet &
Maxwell
1.5 TIME FRAME
You are expected to spend at least 100 hours on this module guide in total. At
least 1 hour on the exercises provided and two weeks on the assignment and
you are also encouraged to practice some exam type question provided at the
end.
 Each component will require a minimum of 20 hours‟ study time
1.6 STUDY SKILLS
For you to be able successfully complete this module, you will do the following:
2|Page
 Read each component as and when required with enough time to spare. Make sure
you plan accordingly and are in a quite area when studying
 Ensure you have a law dictionary with you to check on meanings of words you do not
understand
 Ensure you complete the exercise you are provided and any consolidation work that
may be provided
 Practice exam type question under exam conditions to best see your ability in dealing
with each item
 Ensure you use the tutorial questions to asses you understanding of each topic that
you look at
 Do not miss out on any component it is vital that you complete all of them
1.7 NEED HELP?
If you need help on the module, please use the following contacts:
Course Tutor
Email: Chaponga.nguluwe@zcas.edu.zm
Zambia Centre for Accountancy Studies (ZCAS)
Dedan Kimathi Road, P O Box 35243, Lusaka, Zambia
Tel: +260 1 232093/5, Fax: +260 1 222542
3|Page
2.0 UNIT TWO: Introduction to Tort
2.1 INTRODUCTION
 One of the central characteristics in law and society is that there must be
law, order and various avenues to enforce those breaches of law. Meaning that
individuals need to feel that they can and will have the backing of the law should they
need it? Under the law of tort this ability is provided by way of a suit or claim. The
word „tort‟ is derived from Norman French and simply means “harm” or “wrong”.
There is no one exact or specific definition for tort as there are so many different
types of torts. It includes negligence, nuisance, libel, slander, trespass, assault and
battery. Providing a definition that encompasses all of this is borderline impossible
due to the fact that each tort has its unique elements. Some such as negligence require
proof of damage where as other such as libel and trespass are actionable without the
need for proof (actionable per se in Latin)
Therefore, one definition for all of them is impossible, so what definition do we settle
for? Due to the many differences each tort has, its best do confine ourselves to a
statement that the law of tort is the law of civil wrongs. Meaning it is concerned with the
behaviour that is legally classified as wrong or tortious so as to entitle the claimant to a
remedy.
From this point we shall examine the nature of tort and what it is and particularly what factor
influence tortious liability you have to be aware that some tort are intentional where as other
are due to carelessness or strict imposition of liability without question. See table below:
Intentional Carelessness Strict imposition
Assault, Battery , Trespass to Negligence Strict liability

land, Conversion
4|Page
2.2 AIM
 To introduce you the student to the foundation of tortious liability, the

law of tort and its various sections
 To develop the skill that will enable you to determine what will amount to
tortious liability (this skill will be vital to all the topics that you will do)
2.3 OBJECTIVES
At the end of this course you should be able to do the following at the end of the
course you must be able to:
• demonstrate knowledge of concepts in the law of Torts
• explain the characteristics of tortious liability
• discuss the basic principles of negligence
• Demonstrate an understanding of remoteness of damage and contributory

negligence explain the element that constitutes professional negligence
2.4 TIME REQUIRED
You spend at least 6-8 hours on this unit
2.5 REFLECTION
There will be tutorials and questions that come at the end of the unit that
you must use to reflect on the topic
5|Page
2.6 TYPES OF TORT
Negligence Characteristics differ i.e.
Damage- REQUIRED where others such as

libel and trespass are actionable without
proof of damage
Negligence requires proof of damage
Libel and Slander
Nuisance Damage- NOT REQUIRED AS TORT such

as libel and trespass are actionable without
Trespass
proof of damage OFTEN REFERED TO
 Land ACTIONABLE PER SE
 Person
The aim of the law of torts is to put the claimant back in the position they would have been
had the tort not taken place or occurred. As a tort is a civil wrong arising out of a breach of a
duty imposed by law and it is this breach which gives rise to a personal civil right of action
for a remedy.
Example: Shoprite as supermarket owes a duty to its customers to ensure they can shop
safely without any risk to themselves. This means that should one take a fall on a wet floor in
Shoprite and there are no warning signs about the floor being wet then by all means Shoprite
would potentially be liable for all the injury, loss or damages suffered as a result.
Therefore, it is important that one has due regard to those who are around them.
6|Page
Is it law of Tort or Law of Torts?
There are two competing theories in this regard. According to one theory, there is a general
principle that all wrongs are actionable as tort unless there is any legal justification. The other
theory says that there is no general principle of liability as such but only a definite number of
torts as trespass, negligence, nuisance, defamation etc. and the plaintiff has no remedy unless
he brings his case under one of the nominate torts.
 It Is Law Of Tort: Winfield is the chief supporter of this theory. He says, all
injuries done to another person are torts, unless there is some justification recognized
by law. Thus according to this theory tort consists not merely of those torts which
have acquired specific names but also included the wider principle that all
unjustifiable harm is tortuous. This enables the courts to create new torts. Winfield
while supporting this theory comes to the conclusion that law of tort is growing and
from time to time courts have created new torts. The theory given by Winfield has
been supported by many eminent Judges both ancient and modern. Following are
some examples:- Holt, C.J. clearly favoured Winfield‟s theory, by recognizing the
principle of ubi jus ibi remedium. He said that, if man will multiply injuries, actions
must be multiplied too; for every man who is injured ought to have recompense in
Ashby v. White (1703) and in 1893, Bowen, L.J., expressed an opinion that at
common law there was a cause of action, whenever one person did damage to
another willfully or intentionally without a just cause or excuse. Lord Macmillan
observed that, the common law is not proved powerless to attach new liabilities and
create new duties where experience has proved that it is desirable in Donoghue v.
Stevenson (1932).
 It Is Law Of Torts: Salmond on the other hand, preferred the second alternative and
for him, there is no law of tort, but there is law of torts. According to him the liability
under this branch of law arises only when the wrong is covered by any one or other
nominate torts. There is no general principle of liability and if the plaintiff can place
his wrong in any of the pigeon-holes, each containing a labeled tort, he will succeed.
This theory is also known as „Pigeon-hole theory‟. If there is no pigeon-hole in
which the plaintiff‟s case could fit in, the defendant has committed no tort.
According to Salmond, just as the criminal law consists of a body of rules
establishing specific offences, so the law of torts consists of a body of rules
establishing specific injuries. Professor Dr. Jenks favoured Salmond‟s theory. He
7|Page
was, however, of the view that Salmond‟s theory does not imply that courts are
incapable of creating new tort. According to him, the court can create new torts but
such new torts cannot be created unless they are substantially similar to those which
are already in existence. (See Journal of Comparative Legislation, Vol. XIV (1932) p.
210).
So which is it, it difficult to say however Winfield made a modification in his stand
regarding his own theory. He thought that both his and Salmond‟s theories were correct, the
first theory from a broader point of view and the other from a narrower point of view. In the
words of Winfield, from a narrow and practical point of view, the second theory will suffice,
but from a broader outlook, the first is valid (see Winfield and Jolowicz, Tort, 10th Edition, p.
19). It is thus a question of approach and looking at the things from a certain angle. Which
mean each theory is correct from its own point of view.
2.6.1 Differences with criminal and contract law
Obviously there will be difference between the two therefore it is imperative to distinguish
and understand those differences so as to avoid confusion. Contract is also a type of civil law
and assault, battery and trespass do come as topics in criminal law. So here is a breakdown of
some those basic differences with criminal law:
Crime is a public/community wrong, giving rise to sanctions in a specified code created by a

nation‟s government.
 Action in criminal law is brought by the State/Tort by the victims of the tort.
 The principle objective in crime is punishment/ in torts it is compensation.
 Differences in Procedure and requirements – i.e. Standard of Proof required
 Criminal - Beyond a reasonable doubt
 Torts - On the balance of probabilities *(one has to weigh the actions of the
defendants against the loss that has been suffered by the claimant, meaning there has
to be significant loss not just any loss)
 Significant loss means substantial therefore if you lose a day worth of pay you might
not get compensated for it but if you lose a month‟s salary or more then the potential
to get compensated is higher.
8|Page
Just as there are differences between these laws there is also similarities between them
therefore we can consider some below.
• Actions arise from wrongs imposed by law
• Certain crimes are also torts e.g. trespass & assault
• In some cases the damages in torts may be punitive which means they may be imposed
as a form punishment as they are intended to prevent individuals from carryout certain
behaviour all over again they go beyond the normal compensatory damages
• In some instances the criminal law may award compensation where that law permits
It‟s important to appreciate both the difference and the similarities as they are what make
each one unique and different for the other. Now let‟s consider the differences and
similarities with the law of Contract:
 Tort is a civil wrong brought on by the claimant without the existence of a contract
 Under a contract there is an agreement between two parties so a claim is brought as a

result of breach of the agreement which is legally binding with consent required by
both parties
 Therefore, consent is the major difference between the two
 Tort will look at the law to determine liability whilst contract will examine the
contract which states what will amounts to a breach, but bear in mind both are backed
by law
 There are different types of tort that can be brought forward where as in contract its
specific provisions laid down in the contract that can be sued for breach of contract
 In tort compensation will be negotiated or guided by court order where as in contract

it will tend be laid out in the actual contract should a breach occur
They are both civil law yes, but it is very clear how the differences do play out when a claim
is brought forward. So just as they are difference there are a number of similarities such as:
 Both usually deal with a duty that that been breached by the defendant
9|Page
 Duty of care in tort as is owed to those around you or
 Terms and conditions in contract that each party is aware of and has agreed to
Compensation in both is usually a monetary payment that will be made by the liable parties
for losses suffered by the claimant. Having now examined the differences and similarities the
next issue to start considering is what kind of issues will be taken into account when you
look at the behaviour that will be considered unacceptable in tort. Meaning we have to look
at what would constitute tortious liability.
*Research point: Find a meaning or explanation of tortuios liability that you can rely on
and are able to explain without consulting the guide.
2.7 FOUNDATIONS OF TORTIOUS LIABILITY
In order to establish liability, the courts have to take a variety of issues into account such as
where it happened and how it happened. As the claimant is the one to bring the case forward
it is them who have to show that a tort has been occurred and they suffered as a result. The
law of Tort determines who bears the loss which results from the defendant actions i.e. A,
knocks down B, a pedestrian, and B suffers personal injury. Tort law will look to determine
who bears the loss suffered by B If A is not libel B bears the loss however if it is A who is
liable then A will bear the loss (his or her insurance company to be specific).
This court will have to take a number of issues into consideration when they determine who
will bear the loss that has been suffered by the claimant. These are some of those factors that
they will consider but note that this is not as exhaustive list.
 Compensation
 Fault
 Retributive justice (punishment)
 Deterrence
We shall examine each one individually.
10 | P a g e
2.7.1 COMPENSATION
Probably the most obvious objective of tort law is to award compensation for loss and in
doing so the courts take note of the principle knows as restitutio in integrum which was
explained as follows:
 “the sum of money which will put the party who has been injured, or who has
suffered, in the same position as he would have been in if he had not sustained the
wrong for which he is now getting his compensation or reparation”
Lord Blackburn in Livingston v Rawyards Coal Co (1880) 5 App. Cas 25
It should be noted that the goal of compensation is subject to practical constraints. If the
claimant in a scenario loses an arm or leg the best tort law can do is to provide a sum of
money which best equates that loss. It is obvious that they can replace the arm but they can
try to assist to getting the person to a position close to when they had an arm. Tort cannot
replace the lost limb in other words but maybe a prosthetic could assist.
For fear of floodgates opening up and anyone claiming compensation for every small thing
there is a limit as to what types of loss will be compensated. For example, compensation for
metal distress is rarely given and a restrictive approach is taken towards pure economic loss
and psychiatric loss. which means that when full compensation is granted it must be
compensation within reason?
Statistically majority of personal injury claims arise as a result of road traffic accidents or
accidents in the work place therefore it always compulsory for the defendant to insure against
liability.
Research Point: Ask around at some work places if they have liability insurance for visitor
and work place accidents.
2.7.2 FAULT
The next factor to take in consideration is that of fault. Fault translates into responsibility for
failure of a wrongful act meaning there is someone to be blamed for something that has
occurred. In the case of tort it‟s the act or failure to act resulting in a loss. Our starting point
is the case of Donoghue v Stevenson [1932] A.C 562 where Lord Aitkin justified fault
11 | P a g e
based liability by stating that “members of society ought to take reasonable care to avoid
harming their neighbours. Which means that fault is the idea most commonly used to justify
the awarding of compensation too due to the fact that one is responsible for the loss.
However not all torts are fault based. In libel one might have taken all the required steps but
the newspapers publication could still mean they are liable
 See Sedleigh-Denfield v O'Callaghan [1940] expanding the tort of nuisance on the

basis of fault.
This idea of fault is now encroached in many areas of tort however not all tort are fault
based. In libel a writer could still be liable even he took all reasonable care in researching an
article. The Notion of fault is used to justify imposing liability however note that legal fault
does not equate to moral fault:
 Meaning a driver could be legally at fault for a mistake that by the standards of
society is morally excusable although the rise is insurance now means that in reality,
rather than a morally guilty driver footing the bill it will be the insurance company
who does so
2.7.3 RETRIBUTIVE JUSTICE
Retribution or vengeance is a very old justification for imposing liability on a defendant who
committed a wrong. It was a concept that was developed to avoid blood feuds with the law
developing an action for compensating harm later becoming part of the law of tort. Though in
modern day times it is less recognised and it should be noted that an individual (A) is less
likely to commit an act of road rage against (B) who dented his car or bumper if a tort claim
settled by insurers will pay for a new one. Note that punitive damages can apply to this factor
when the courts seek to punish the defendants. Such damages are justified on their deterrent
effect which is related to the point we look at next.
2.7.4 DETERRENCE
In basic its form the concept of tort liability acting as a deterrent is a simple concept, If A‟s
actions or inaction causes harm and he or she ends up paying compensation the next time
12 | P a g e
they find themselves in that same position they will try to act differently. The deterrence
principle works in various contexts:
 Doctors and lawyers have to be very careful with their work as reputations are at
stake and fault has major consequences
 Publishers to protect themselves will hire lawyers to screen certain articles before
they publish
The courts objective of deterrence is supported by this concept in that they can award
punitive damages in tort sometimes also known as exemplary damages. These are damages
seek to punish the defendant for acting a certain way or deliberately trying to profit from his
or her tort. The objective is to show that tort does not pay and hence deterring the defendant
from carrying out such action again in future. For example, see the American case
Grimshaw v Ford Motor Co 119 Cal. App 3d 757 (1981). Ford was ordered to pay $125
Million for marketing a defective car on the basis that it would be cheaper to pay
compensation to the victims of the defect than to redesign the car completely. This lead the
jury to punish them due to the little regard given to human life, however the amount was
reduced significantly on appeal.
N.B Zambia does not use a jury system
Although in negligence this concept has limited application. If A injures B by simple

inadvertence which the law may call negligence it is difficult to see how making A liable can
alter their behaviour. A is liable as he or she failed to meet standard behaviour expected of
the Reasonable person. This is an objective test meaning one could still be liable even though
they are already taking all the care they could see the case below
Nettleship v Weston [1971] 2 Q.B. 691 where a learner driver on her third lesson was held
liable for negligence for driving below the standard of a “reasonable driver” which was set at
the standard of an ordinary competent driver (the fact that she was a learner was not taken
into account or the fact that the person suing was the instructor whose very skill should have
prevented the accident).
However, what is the effect of Vicarious Liability and insurance? Surely the availability of
compensation so easily lessens the impact of deterrence meaning there will always be some
objection as to whether or not this important aim of Tort.
13 | P a g e
Other factors that the court might take into consideration will include Economic efficiency
(market deterrence) and loss distribution. These are the things that the court will have to have
regarded to in order to establish tortious liability of an alleged defendant. This relates to the
interest that the law of Tort seeks to protect which includes personal harm, harm to property,
harm to reputation and harm to financial interests.
2.8 VICARIOUS LIABILITY
A doctrine of law of tort that imposes liability on the employers for the wrong doings of their
employees. Generally, this means that rather than the responsible individual it the employer
who will be held liable for a tort committed by the employees whilst conducting their duties
at work. If A commits a tort whilst carrying out their duties and working for B it is B who
will bear the loss and also held liable-
For example, you slip and fall in Shoprite or Spar due to a wet floor it is Spar or Shoprite
who will be held liable not the individual who was responsible for the wet floor. Note that
this is not a tort in itself and in order to prove it the claimant must show three things namely:
I. The employee committed a tort

II. The existence of an employer/employee relationship
III. The employee acted in the course of his or her employment when committing
the tort
It is possible for the employer to recover damages from the employee but in reality this rarely
happens for obvious reason.
2.9 CONCLUSION
Law of Tort is one of the most interesting types of law you will come across however it can
be both complex and sometimes frustrating due to the challenges it can bring up. There are so
many developments that now play a part included the Convention on Humans rights which
we do accept in Zambia.
2.10 ACTIVITIES
 See Portal for your weekly tutorials (1 hour should be spent on it)
14 | P a g e
 Complete the puzzle below
 Read the following the case
o Perera v VANDIYAR [1953] ALL ER 1109
o Hargreaves v Bretheton [1958] 3 All ER 122
o Wilson v Pringle [1987] QB 237
2.11 SUMMARY
 You have looked at what is a tort is under the law as well as the
various factors that will be taken into consideration by the courts when
determining who bears the loss in a civil tort suit. before you move on to the
nest unit which will look as different types of tort make sure you are comfortable
explaining the following terms
 Claim
 Tort
 Liability
 Damages
 Balance of probabilities
 Plaintiff
The next unit will now examine the different types of tort that exist looking at each briefly
and examining their characteristics and different elements.
15 | P a g e
3.0 UNIT THREE: Different types of Torts
3.1 INTRODUCTION
 The next topic to discuss will be the different types of tort that will exist.
Each shall be examined briefly looking at the characteristics that make up each tort
in terms of what is required for one to bring a claim forward:
 Trespass to the person

Assault
Battery
False imprisonment
 Trespass to land and Goods
 Negligence
 Nuisance
 Defamation
3.2 AIM
16 | P a g e
 identify different types of torts and their characteristics
 Examine some of their characteristics and what makes them unique
 Examine some relevant cases
3.3 OBJECTIVES
At the end of this unit you should be able to do the following:
 Be able to understand the different tortious characteristics that exist
 Be able to identify the different types of Torts that exit
 Be able to differentiate and briefly explain each on
3.4 TIME REQUIRED
The minimum number of hours that the student should spend on this unit is 8
hours (6 for studying and 2 for tasks and consolidation)
3.5 REFLECTION
There will be tutorial and task to do throughout and at the end of the topic
which will require and test your critical thinking and analysis therefore
make sure you do all of them
17 | P a g e
3.6: DIFFERENT TYPES OF TORTS – Trespass
The first tort that ill shall consider is that of trespass to person. Most of the time when one
here‟s the term trespass they picture somebody moving over someone else‟s land without
permission. They don‟t necessarily think of the extent to which trespass can apply. Trespass
goes beyond just someone being on someone‟s land, it actually includes trespass or actions
against the individual themselves or their person. Trespass can generally be defined as
follows according to Dictionary.com (http://www.dictionary.com/browse/trespass):
“an encroachment or intrusion”, this is probably the most common definition that most
individuals will think of when they are asked about trespass. However in law it is very
different and incorporates a lot more than just the standard definition. In law the definition is
more technical and is even devised into three different kinds.
Generally according to the Oxford Law Dictionary trespass is: “a wrongful direct
interference with another person or with his possession of land or goods……. There are three
kinds of trespass, to person, to goods, and to land. Trespass to the person maybe intentional
or negligent ….in the form of actions for assault battery and false imprisonment. Trespass to
goods includes touching, moving or carrying them away…. May be intentional or negligent
but inevitable accident is a defence. Trespass to land usually takes the form of entering
without permission.”
You need to be aware than trespass case also be a criminal offence however when we look at
it in tort we shall always be looking at it from the civil point of view.
So in simplifying it this is how it works:
 In Morden law its takes three forms trespass to the person, to land and to goods
 All three have the same characteristics which are that its committed intentionally,
causes direct and immediate harm and is actionable per se
 Trespass is actionable per se – meaning no evidence of damage required this issue or

tort speaks for itself.
Elements (factors that are unique to each one)
• Direct interference
• Voluntary/Intentional/Negligent
• Without Consent of Person in Possession/ Other legal justifiable excuse

18 | P a g e
Research Point: Can trespass ever be legal?
Trespass to the person is there to protect the claimant against interference with his or her
person. This can be by means of assault, battery or false imprisonment. These torts possess
the classic trespass characteristics mentioned above in that they are committed intentionally
by direct and immediate actions of the defendant and actionable without proof of damage
from a claimant.
 Battery involves an act carried out by the defendant. Force must be applied
intentionally and causes direct physical interference with the body of the plaintiff.
Battery will be considered in its full context layer on. The issue of consent or lawful
justification is for the defendant to prove if it is raised and as mentioned above the
elements required will be that it‟s an intentional act, with the force being immediate
and direct.
 Assault protects the claimant in fear of battery; the actions of the defendant cause the
claimant reasonably to apprehend the direct and immediate infliction of force. As
you can tell the elements required are, reasonable apprehension of harm which is key,
and that the action must be intentional, must be immediate and direct. Therefore, a
number of question arise, how do you cause someone to apprehend fear, is it by
action or words. Can words by themselves constitute an assault consider the cases
below:
 Mead‟s v Belts Case (1823) said no words could not be used to constitute an
assault
 R v Ireland [1998] rejects that notion in the above case and said words could
suffice
 False imprisonment- this is a tort concerned with right of freedom of movement of

an individual. For there to be an issue here there has to be a complete restriction of
that movement in the absence of authorization by law which will result in a defendant
being liable. The elements are that there must be complete restriction of the
claimant‟s freedom of movement and it‟s without legal authorization.
19 | P a g e
3.6.1 Trespass to land
Trespass to land is there to protect the claimant against direct and unjustified
interference with his or her possession of land. Possession of land has to be exclusive
though and merely being there is not enough. As with the other trespass torts, the
elements are the same, except the additional element is the „exclusive possession of
land‟.
Elements
State there Intentional or Negligent act of the defendant without lawful justification
1. Which Directly
2. interferes
3. With the Plaintiff‟s exclusive possession of land
3.6.2 NEGLIGENCE
Negligence involves the breach of a legal duty of care by an inadvertent act or

omission which injures another person. It notes the complex concepts of duty, breach,
causation and damage thereby suffered by the person to whom the duty was owed to.
D= Defendant
P= Plaintiff
Elements
• Duty – D owed P a duty to take care in the circumstances
• Breach – D‟s act or omission failed to reach the standard of carefulness required by
the circumstances and so there is a breach of the duty to take care
• Causation – D‟s breach of duty caused damage to P
• Damage – Damage suffered by P is legally recognisable and not too remote from the
breach of duty
20 | P a g e
3.6.3 NUISANCE
 Three main types of nuisance are currently identifiable. Private nuisance which can
be defined as an unlawful interference with a person‟s use or enjoyment of land or
some right over or in connection with it.
 Next there is public nuisance which defined as any nuisance which is public which
materially affects the reasonable comfort and convenience of life of a class of
individuals it covers a multitude of sins great and small
 Statutory nuisance (do personal research to find the definition of this type of
nuisance)
3.6.4 DEFAMTION
Defamation looks to protect the reputation of a claimant and it is the claimant's reputation
that matter most as opposed hurt feelings.
There are two types that exit
I. Libel
II. and slander
Libel takes permanent form e.g. an article, photos published is a daily newspaper whereas
slander is temporary e.g. words shouted or gestures made.
Elements required are as follows
 Determine is the statement is defamatory

 Does it refer to the claimant
 Has it been published to a third party
 Can defendant rely on any of the differences e.g. justification (truth) or fair
comment
3.6.5 STRICT LIABILITY
21 | P a g e
 This is where there is the imposing of liability on a party without finding fault.
Usually this applies in inherently dangerous situations. Those that one ought to be
extremely careful in, this is also known as the Rule in Rylands v Fletcher
 The claimant only has to show tort occurred and that the defendant is responsible.
Example-
There is an owner of a tiger in a cage; if the tiger escapes no matter how strong the
cage is liability will be imposed.
3.7 ACTIVITIES
Try and find examples for each of the torts mentioned above.
3.8 SUMMARY
There are many different types of tort that can occur however even though
some will have plenty of similarities in their characteristics their elements will
always be different. Each of the torts that have been mentioned above will be
considered in wider detail in the following chapters, the first one we shall be examining will
be trespass to person.
22 | P a g e
4.0 UNIT FOUR: Trespass to Person (Part 1: Land)
4.1 INTRODUCTION
 In this unit we shall be looking at the tort of trespass to person. Trespass to

person encompasses three different major sectors that will all be examined in
detail. Trespass to land, goods and to person.
Images courtesy of Google Search
Signs like this are very common and no doubt you would have across many before. They are
there to warn individuals not to cross certain boundaries. So we shall examine the issue of
trespass to land first.
4.2 AIM
 Introduction to trespass to land
 Examine trespass to land in detail
 To identify the characteristics and elements that are required to bring the claim
forward
4.3 OBJECTIVES
At the end of this unit you should be able to do the following
23 | P a g e
 Identify when trespass to land has occurred
 Have the ability to differentiate between the characteristics and the required elements
 Distinguish it from the tort of nuisance
4.4 TIME REQUIRED
You need at least 8 hours on this Unit (6 study hours plus 2 practice Hours)
4.5 REFLECTION
There will be tutorial and tasks to do throughout and at the end of the
topic which will require and test your critical thinking and analysis
therefore ensure you attempt all
4.6 Trespass to land
Trespass is trespass whether it is to land or goods or person and they will always be
similarities in each, for instance they all require some kind of action being committed. Here
are some characteristics that are common in all types of trespass:
• They involve some type of action directed at the claimant that results in some type of
loss or detriment
• Actions can either be positive or negative i.e. they could be an act or an omission to
act which leads to a tort being committed
• Some are actionable per se meaning no proof of damage required meaning the tort is
legally sufficient to support a lawsuit by itself.
• Whilst others require proof of damage
24 | P a g e
You should note that this is not an exhaustive list and there will always be others however
these are the major ones. Though the characteristics are common in all it will be the elements
that differ for each type of trespass. The elements are the ones that make each one unique and
distinguish each from the other. The elements are the ones that assist us in assessing whether
or not the tort has occurred.
4.6.1 Definition
Trespass is defined by the Oxford Dictionary of Law as, “A wrongful direct interference with
another person or with his possession of land…” The tort of trespass is actionable per se as
already established one does not have to prove damage to bring the claim trespass to land is
included. I.e. walking across a cattle field as a short cut or hunting on someone else‟s land
amounts to trespass.
4.6.2 Requirements for trespass to land
All types of trespass have the same characteristics which are that its committed intentionally,
causes direct and immediate harm and are actionable per se. therefore breaking down the
specific requirements or elements for trespass to land means that there following are need:
Requirements (elements)
• Direct interference (with claimant‟s land)
• A Voluntary/Intentional action
• Without Consent of Person in exclusive Possession of land / Other legal justifiable
excuse
This means that there has to be some direct action interfering with the claimant‟s land, for
instance one cutting through a field as a short cut, this has to be voluntary and there can be
not permission from the owner otherwise the claim fails.
It important to recognise that this type of tort operates differently to the others i.e. nuisance
and negligence. Those compensate for harm suffered as a result of unintentional acts whereas
in trespass, intentionally committed acts are usually required. Trespass aims to support the
claimant‟s right to be free from interference in the use of their property and it is on this basis
where the tort is actionable per se. This is illustrated below:
25 | P a g e
• It is the wrongful act of D i.e. crossing the cattle field that triggers compensation as D
is interfering with the legally recognised interest that the claimant has.
However, it is important to remember that the courts will take into account if any loss or
damage has been suffered when awarding compensation. Damages are nominal (very small)
if awarded.
Research point
Are they any similarities to private nuisance?
The net logical question would be to then ask how much does one own on their land in
relation to trespass? Consider the following Latin Phrases
• Cuius est solum, eius est usque ad coelum et ad inferos meaning whoever‟s is the
soil, it is theirs all the way to the heavens and all the way to hell (whilst this remains
mostly true its application now is somewhat limited by the Mines and Minerals Act
• Quicquid plantatur solo, solo cedit meaning whatever is fixed/attached to the soil
belongs to the soil or is part of the land
Do you agree? How about the discovery of natural resources or minerals does that change
anything? (See Section 3 of the Mines and Minerals Act) Reflect on this before moving on.
Those two phrases were emphasised on in common law by Edward Coke in Bury v Pope
(1587). To reiterate the rational of trespass to land is to protect the claimant against direct
and unjustified interference with his or her possession of the said land this is very similar to
tort of nuisance which deals with the same issue but be careful not to confuse the two.
• Those two phrases definitely state what we know in that one‟s owns their land and
what‟s on it, however there is a limit as to how much one owns, even though the
phrases say otherwise. For example planes will always fly over people land and in a
mineral is discovered on one‟s land it is considered state property. The question will
always be how much do you own your land and airspace within reason? See
Bernstein v Skyviews and General LTD [1978] taking aerial photos hundreds of
metres above.
Trespass to land does not usually lead to criminal liability as opposed to trespass to person
however there are some exceptions such as aggravated trespass (trespassing on land to
26 | P a g e
disrupt a lawful activity taking place). This tort is intentional, however one must note that it‟s
the act of entry that should be intentional not the tort of trespass which:
• Means you are trespassing whether or not you are aware that that is the case. As long
as it voluntary its trespass Conway v George Wimpey & Co Ltd [1951]
• Is it trespassing if you are lost or someone pushed you onto land?
4.6.3 What is meant by direct and unjustifiable interference?
There are different ways this can happen i.e. simply walking onto a lawn or entering a
house without permission or allowing cattle to stray onto one‟s land. It could also be
committed by interference on subsoil and even airspace illustrated in Bernstein v
Skyviews and General LTD [1978] where there was taking of aerial photos hundreds
of metres above the property. Read the case and see what was said about the height.
Planes at reasonable heights don‟t not trespass however one can claim damages from an
owner of a plane should something fall of the plane and damage their property and some
notice complaints can also be filed if the plane in flying unnecessarily low however those are
other issues to be dealt with on their own. However this is all subject to the provisions in the
Civil Aviation Act.
Possession
Possession of land is the direct interest protected by this tort action ergo only applies if the
claimant is in exclusive possession of land then they can sue, being there physically is not
enough. The claimant must have an interest in land in possession or exclusive possession of
the land affected which means that:
• A landlord can only sue for an interest if his interest is injured by a trespasser i.e. his
interest is that of repossession at the end of a tenant agreement
It‟s very important to always note identify whether or not there is exclusive possession and
who has it as they are the ones who can bring the claim forward and no one else.
27 | P a g e
4.7 Defences
As with any claim brought forward the defendant will always have the chance to defend or
explain themselves. There are a number of defences that can be used; these are the ones we
shall consider:
• Licence,
• Necessity and
• Justification by law
4.7.1 Licence is simply what it means in the sense that it refers to one having permission to
do something or go somewhere. Here the defendant will not be liable if he or she has
permission to act, meaning to enter or cross or be on the said land. This can either be express
or implied from the claimant. Express being stated clearly that one can enter and implied
being where on assumes that the right to enter has been granted.
Think Point
Consider some day to day scenarios where licence is granted either expressly or implied.
We have to note though that this has two limitations in that it may be restricted by expresses
or implied terms in practice i.e. you invite someone into your home to use a bathroom and
they use your bedroom instead or permission maybe withdrawn therefore if the defendant
does not leave on time or within a reasonable time they are trespassing. I.e. where one should
be in the garden for 2 hours but they stay longer.
4.7.2 Necessity
Necessity is a valid defence to trespass to land however it has its exceptions. It maybe public
or private however there must be an actual or reasonably perceived danger with regards to
steps that are to be taken.
• Public necessity is conducted in the public‟s interest
• Private necessity is in the defendant‟s interest i.e. saving his or her own property
28 | P a g e
• See Rigby v Chief Constable of Northamptonshire [1985]
4.7.3 Justification by Law
Justification by Law is a defence is the defendant was legally authorized to enter the property
i.e. police warrant
4.8 Remedies
The following are remedies one could potentially
 One could claim for damages and or request for an injunction order which can be
obtained from the courts.
 Order for possession of land: persons entitled to land seek a court order to recover the
land but they have to prove title to land
 Mesne (pronounced as mean) profits is usually claimed in addition to the recovery of
the land however these are consequential and are given for time lost due
4.9 ACTIVITIES
Read the following cases:
 Shell & BP Zambia Limited v Conidaris and Others (1975)

 Basely v Clarkson [1681]
 Anchor Brewhouse Developments Ltd v Berkley House Ltd [1987] 38 BLR 87
887
 Bulli Coal Mining Co v Osbourne [1899]
29 | P a g e
4.10 SUMMARY
Trespass to land can occur in more ways than one. It either be above ground,
airspace or even underground. It does not matter whether someone has
mistakenly committed the act believing that it is their land, as long as a
voluntary action has occurred it can amount to trespass. However be mindful of the effects
that the Mines and Minerals Act would have should mineral be discovered. Remember in
Zambia all land is still owned by the State and mining rights are vested in the President.
30 | P a g e
5.0 UNIT FIVE: Trespass to person (Part 2: Assault & Battery)
5.1 INTRODUCTION
 In this unit we shall be looking at the tort of trespass to person.

Trespass to person encompasses three different major sectors that will all be
examined in detail. Trespass to land, goods and to person. This part 2 moves on
to assault and battery.
5.2 AIM
 Start looking at trespass to the person in more detail
 Everything will be covered up to defences
 Part 3 will look at false imprisonment, defences and remedies
5.3 OBJECTIVES
31 | P a g e
 Clearly identify when an assault or battery has taken place
 Be capable of distinguishing between the two
5.4 TIME REQUIRED
You need at least 8 hours on this Unit (6 study hours plus 2 practice Hours)
5.5 REFLECTION
therefore ensure you attempt all
5.6 ASSAULT
Trespass is defined as “A wrongful direct interference with another person or with his
possession of land or goods”
The definition mentions „person‟. Person is the individual and it will be acts against the
individual that will be looking at. There are three types of trespass to the person namely
assault, battery and false imprisonment that can be committed against a claimant. We shall
look at each separately starting with assault. But remember all three have the same
characteristics,
 that the act is committed intentionally,
32 | P a g e
 it causes direct and immediate harm
 and its actionable per se
As for the elements it can be said that, the act must cause some direct interference which has
to be intentional or voluntary and without consent of the person affected and there should be
no justification in law. This tort of trespass person is there to protect the claimant against
interference with his or her person i.e. body.
Assault protects the claimant in fear of battery; the actions of the Defendant cause the
claimant reasonably to apprehend the direct and immediate infliction of force. Elements
required are, reasonable apprehension of harm which is key and actions must be intentional
and must be immediate and direct. This leads to the question
Can words by themselves constitute an assault?
 Mead‟s v Belts Case (1823) said no they could not constitute and assault
 R v Ireland [1998] rejects that notion and said words could suffice as an assault
 Tuberville v Savage (1669) illustrated that words could negate an assault too
Reasonable apprehension of harm
This is the key to assault, if someone sneaks up on you without your knowledge and strikes
they have only committed a battery. Its only assault if you are aware of the defendant‟s
approach, equally if you are saved from physical harm its only assault.
In Stephens v Myers (1840) plaintiff was threatened with violence whilst trying to expel the
defendant for a church but due to the intervention of a third party they were only liable for
assault. However passive obstruction will not result in an assault.
Must be intentional
A basic requirement and signifies that the defendant intended the claimant to apprehend that
reasonable force would be used. It must be immediate and direct meaning it can be delayed.
This is also part of reasonable apprehension test in that;
33 | P a g e
 If a claimant can see that the defendant is not in a position to inflict immediate and
direct harm, then he has nothing to fear and no liability for assault can be imposed.
Therefore, someone threatening violence on a passing train one has not committed an
assault to an individual who is not on the train.
 See Thomas v National Union of Miners [1986]
5.7 BATTERY
Now let us examine battery. Battery also involves an act by the defendant. It can be either
intentional or negligent act that causes direct physical interference with the body of the
plaintiff. For example, bumping into someone or punching them or even slapping them.
These are all example of what could be considered a battery given the right circumstances. If
there is an issue of consent, then the issue of consent or lawful justification is for the
defendant to prove. As with assault there are special needs that need to established and
proved to bring a successful claim. Therefore, for battery the following are required: (acts)
 It must be intentional
 It must be direct
 Immediate force
It must be intentional this means that the act of force has to be voluntary or on purpose.
Intention relates only to the acts of the defendant the resulting consequences do not matter
irrespective of how much damage has been caused. Which means the defendant will be liable
for all the consequences as a result of the tort irrespective of whether or not they were
foreseeable. See;
 Williams v Humphrey, The Times (1975)
Furthermore, a battery is still committed if A hits C when he intended to hit B
 See James v Campbell (1832)
The force applied in battery can vary from something light to something very heavy i.e. a
gentle push to a full blown punch. Battery can also be committed even if the initial action
was unintentional but the defendant at some point intends to apply force
34 | P a g e
 Fagan v Metropolitan Police Commissioner [1969]
A car on police office‟s foot was placed there unintentionally however the driver deliberately
failed to move despite many calls by the office to the defendant to get of his foot. So original
action had no tort committed but the secondary action did; therefor force applied recklessly is
sufficient to constitute a battery.
It must be sufficient. This is another basic requirement that states that any injury in trespass
must be directed to the person that is making the claim. However, that does not mean that
indirect act can occur. If indirect then the other options have to be considered to establish a
basis of recovery for the claimant.
 See Scott v Shepherd (1773)
Defendant was liable for throwing a lighted squib (fire work) into a market place despite
the fact that the squib had been thrown on; by the store holder to protect themselves and
it went off in Scott‟s face as a result.
 See DPP v K (1990) where sulphuric acid was placed in the hand dryer by schoolboy
which resulted in injury to the claimant.
There has to be Immediate Force. This tort of battery applies to any form of bodily contact,
any. As one can be see this can cause some practical problems if applied literally. Therefore,
distinctions have to be made. In Cole v Turner (1704) Holt‟s comments were cited by the
judge stating that the least touching of another in anger is a battery. On this basis the court of
appeal in Wilson v Pringle [1987] added/held that battery must be committed with hostile
intent.
One has to be very careful when dealing with these types of torts as they can be very similar
to some facts that one might encounter in other torts such as negligence.
35 | P a g e
5.8 DEFENCES
These will be considered at the end of the next unit as they apply to all three trespasses to
person torts.
5.9 ACTIVITIES
 Make sure you read all the cases that are mentioned in full
 Your weekly tutorial questions will be available on the portal as usual later in the
weeks
5.10 SUMMARY
 Trespass to person has three torts to it. In the first part we have looked
assault and battery which occurs towards the person. They can occur in a
number of ways but most of the time as long as an individual feels threatened
or there has been any touching what so ever than a claim can be brought forward by
the affected party.
 The next unit will shall consider the third part of trespass by looking at the specific
tort of false imprisonment.
36 | P a g e
6.0 UNIT SIX : (Trespass to person part 3) False imprisonment
6.1 INTRODUCTION
 The next unit to be examined will be false imprisonment. This is the type of
tort that occurs under trespass to person the other two being assault and battery that
we have already looked at.
 We shall also examine defences and remedies that apply as whole to the tort of
trespass to person
6.2 AIM
 identify when false imprisonment has occurred
 Examine the characteristics and what makes them unique
 Examine some relevant cases
 Defences and remedies
6.3 OBJECTIVES
 Be able to understand the different characteristics that exist
 Be able to identify and address the issues of false imprisonment
 Be able to apply the defences to the relevant scenarios
37 | P a g e
6.4 TIME REQUIRED
6.5 REFLECTION
There will be tutorial and task to do throughout and at the end of the topic
which will require and test your critical thinking and analysis therefore
make sure you do all of them
6.6 FALSE IMPRISONMENT
Trespass is defined as “A wrongful direct interference with another person or with his
possession of land or goods”. The definition mentions „person‟ so the term person means the
individual and it will be acts against the individual that will be looking at three types of
trespass to the person namely assault, battery and false imprisonment that can be committed
against a claimant this time round we concentrate on the third type.
6.6.1 What is it?
Here are two definitions:
 The restraint of a person's liberty without lawful authority (Collins English

Dictionary)
 Complete restriction of claimants right to freedom of movement which is not
expressly or impliedly authorized will lead to a defendant being liable
38 | P a g e
Therefore from the two one can see that there has to be some kind of restriction imposed on a
person and that restriction has to be total or complete preventing the person from escaping or
making it extremely difficult to.
Examples of false imprisonment
 being locked in a car,
 driven about without opportunity to escape
 Tied to a chair
As already stated all three types have the same characteristics,
 that the act is committed intentionally,

 it causes direct and immediate harm
 and its actionable per se
Therefore elements of it can be that the act must cause some direct interference which has to
be intentional or voluntary and without consent of the person or that of justification in law
which means this tort of trespass is there to protect the claimant's right to freedom of
movement.
6.6.2 What are the elements required?
 A complete restriction of the claimant's freedom of movement

 Without legal authorization
 knowledge imprisonment is not essential
These elements are essential if one is to successfully bring a claim forward. All of them have
to be presents otherwise there claim may not succeed.
6.6.3 Complete Restriction
Movement of claimant must have been completely restricted in every direction they
should be no way out restraint has to be total and complete
Bird V Jones (1845)
P wanted to walk across the footpath on Hammersmith Bridge in England but was
unable because D had placed temporary fencing on the bridge to enable spectators to
39 | P a g e
participate in a regatta. P proceeded to climb over the fence, D stationed 2 cops to
prevent P from proceeding. P tried to force his way and was taken into custody.
Held: this was not false imprisonment. Though it blocked P‟s passage across the
bridge, there was nothing to stop P from turning around & going back the way he
came. No false imprisonment because P‟s passage was only obstructed in one
direction.
Therefore it‟s a question of fact; if A is able to go back/return in the same direction he

came or has reasonable means of escape then B cannot be liable. The means of escape
have to reasonable.
Think Point: Can words cause one to be falsely imprisoned?
Consider these words in a bank robbery “do not leave”, “do not call the police”, “stay
where you are”.
6.6.4 Knowledge
Knowledge of imprisonment is neither required nor essential. The tort simply

protects the claimant's freedom of movement as it‟s a recognised interest. Proof of
damage is not required and it‟s not necessary that one has suffered from his or her
knowledge of the imprisonment. See the following cases-
 Grainger v Hill (1843) in tort of false imprisonment exits even if one is

too ill to move or realise what going on
 Meering v Graham White Aviation Co (1920) P was an employee of the

D. D suspected P of theft. Employer sent two of the security to hold him
up in office till police came. P did not realize he was being detained. He
was not guilty of the theft and later sued for false imprisonment. It was
argued by the employer that there was no false imprisonment because he
had not actually been told that he was not allowed to leave, neither did he
know that he was imprisoned
 English courts held that it was immaterial whether P was aware of the
restraint upon his liberty. Lord Atkin said that “it appeared to me that a
person could be imprisoned without his knowing it. A person can be
40 | P a g e
imprisoned while he is asleep, while he is in a state of drunkenness, while
he is unconscious, while he is a lunatic.”
 An imprisonment can occur even when it begins and ends whilst P is still
in that state of unawareness
 In Murray v Ministry of Defence [1988] it was stated that law attaches
supreme importance to liberty of the individual and if he suffers a
wrongful interference with that liberty it should remain actionable even
without proof of special damage
Therefore; as discussed above one can see that knowledge of the imprisonment will be
irrelevant when the question pops up.
6.6.5 Without legal authorization
The burden of proof lies on defendant to justify lawfulness of where it is claimed. Claimant
only has to show he or she was detained, meaning denied their freedom of movement.
Justification can come by way of:
 Warrant
 Arrestable offences
6.6.6 Rule in Wilkinson v Downton
Intentional harm which has been indirectly caused
This is not included in the torts discussed but it‟s covered by the rule in Wilkinson v
Downton [1897] - D told the P her husband had been seriously injured in a traffic accident as
a practical joke, she suffered shock and a serious physical illness
• Wright J upheld the jury‟s verdict in her favour stating the principle as: “the DF
has…wilfully done an act calculated to cause physical harm to the pf & the act does in fact
do cause harm to her…without more appears to me to state a good cause of action”
• Conduct must be wilful & cause harm, recklessness or intention is irrelevant. It is an

objective test in the sense of causing harm with a reasonable person believing one meant to
cause harm. Harm must be proved it is clear from the rule.
41 | P a g e
Case later applied in Janvier v Sweeney [1919]
D were detectives who wanted to obtain from P some letters that they thought she had access
to, they threatened her that they would tell the authorities that she had been involved with a
German spy during the war years. She became physically ill as a result of the threats.
Held-a stronger case than Wilkinson v Downton saying you cannot go around threatening to
report things to the police in order to get what you want from Ps. P was successful and
approved the rule from Wilkinson v Downton.
Defences and Remedies
 Self defence
This is a valid difference by analogy with criminal law. The key consideration is whether
force exerted is reasonable and not out of proportion to force exerted against an individual.
Consider Lane v Holloway [1968] Elderly plaintiff stuck younger defendant of the shoulder
and the defendant retaliated with an extremely severe blow to the face the blow was out of
proportion hence defendant was liable. See Cross v Kirkby The Times, April 5. 2000
 Provocation
Lane v Holloway stated provocation is not a defence all it might do is reducing or extinguish
claimant's entitlement. This was applied in Barnes v Nayer (1986)
 Lawful authority
Applied where defendant has specific statutory authority to detain someone and deprive them
of their complete freedom of movement.
Lawful arrest equals no liability
 Remedies
Two are available:
Damages are of two types i.e. compensatory and punitive

Injunction could be obtained
42 | P a g e
6.7 ACTIVITIES
weeks
6.8 SUMMARY
Trespass to person is encompassed by three types of tort namely assault,

battery and false imprisonment all of them have the same characteristics but
it‟s the elements which differ and make each one unique in its own way.
In the next unit we shall be examining the tort of defamation.
43 | P a g e
7.0 UNIT SEVEN : Defamation
7.1 INTRODUCTION
 The next unit to be examined will be defamation. Defamation looks to

protect the reputation of a claimant and it is the claimant's reputation that matter as
opposed hurt feelings, there are two types-
Libel and slander

 Libel takes permanent form e.g. an article, photos published is a daily newspaper
whereas slander is temporary e.g. words shouted or gestures made
7.2 AIM
 Look at the definition of defamation and expand on it
 Examine slander and libel
 Discuss examples brought by the class
 Defences to defamation claims
44 | P a g e
7.3 OBJECTIVES
 Be able to understand how this tort works
 Be able to identify and address the issues on what constitutes defamation
 Be able to apply the defences to the relevant scenarios
7.4 TIME REQUIRED
7.5 REFLECTION
therefore make sure you do all of them.
7.6 Defamation
What is it?
Defamation is „publication of a statement which reflects on a person‟s reputation and ends to

lower him in the estimation of right thinking members of society generally or tends to make
them shun him or avoid him‟. See-
45 | P a g e
Phiri v The Programme Manager Radio, Radio Maria Zambia, Chipata (unreported)
It can also be the act of making untrue statements about another which in turn damages
his/her reputation. If the defamatory statement is printed or broadcast over the media it is
libel and, if it‟s oral only it is slander. This means there are only two types of defamation-
Libel
Written words published to third parties or even broadcast over the media i.e. magazine,
photos, newspaper, news reports.
Slander
Words shouted at someone or gestures made i.e. biting your thumbs at someone, use of
fingers in inappropriate manners or untrue/insulting language.
Task 1 Browse the web and see if you would find three examples of incidents that have led
to claims in defamation, pay particular attention to the words or statements made/said.
7.6.2 What are the elements required?
There are four logical steps that need to be considered when dealing with either of the two
types of defamation-
 is the statement defamatory?
 Does it refer to the claimant?
 Has it been published?
 Do any of the defences apply?
If the entire set of question are answered in the positive manner then there is potential for a
defamation claim to succeed. In order to best understand these we need to examine each one
by itself and see how each one fits in. that will be looked at later in the unit.
Slander has some special circumstances that it can apply in. There are some instances where
slander is actionable per se meaning no proof of damages is required, this is where the court
feels it‟s safe to presume damage due to the nature of the allegations. Thus it can occur where
there has been
46 | P a g e
1. Imputation of a criminal offence punishable by imprisonment.
There has to be an imputation that a criminal offence has been committed. See Webb
v Beavan (1883) where it was stated that “I will lock you up …. I know enough to
put you there‟ this implied that a criminal offence had been committed and therefore
was actionable per se
2. Imputation of contagious disease
3. Imputation of unchastity or adultery by a female
4. Imputation of professional unfitness or incompetence
At the end of it all though one must remember that the Judge will determine as a matter of
law if statements are capable of being defamatory‟ see Capital and Counties Bank ltd v
Henty (1882). Which means the test is an Objective test.
7.6.3 Is the statement defamatory?
A statement is defamatory if it harms a person‟s reputation. But what does that mean is the
next question which is difficult to assess sometimes. However there is some guidance See the
classic definition is in Sim v Stretch [1936] which states that a statement is defamatory if it
“tends to lower the plaintiff in the estimation of right thinking members of society
generally”. This was later extended in Youssoupoff v MGM Pictures ltd (1934) to include
circumstances where the claimant is shunned or avoided by members of society.
Therefore the question is whether your reputation has been harmed in the eyes of right
thinking members. The standard is that of a reasonable person and it‟s an objective test. The
reasonable person is said to be one who is fair minded, neither unduly suspicious or unduly
naïve, see Lewis v Daily Telegraph [1964].
What about innuendo?
This is an implied attack on a person‟s reputation, one that is neither too obvious nor clear.
Again test is objective. There are two types of innuendo-
False and True
47 | P a g e
True is one where the attack is hidden in the absence of special fact and
circumstances which the claimant must show are known by some of the people to
whom the statement is published
False is one which a reasonable person guided by general knowledge would infer
from the natural and ordinary meaning of the words
A true innuendo see- Tolley v J.S Fry & Sons Ltd [1931] where an amateur golfer had a
caricature of him appearing in an advert for Fry‟s chocolate without his knowledge. This is
not defamatory however he argued that those who knew him as an amateur golfer would see
him as accepting money for the advert something that was contrary to acceptable amateur
conduct in golf. The House of Lords held that the advert was capable of being caught out by
the meaning on innuendo. Therefore, people who knew Tolley might think less of him and
his reputation would be harmed. See Cassidy v Daily Mirror Newspapers Ltd [1929] as
well for true innuendo.
Lewis v Daily Telegraph Ltd. [1964] on the other hand is an example of false innuendo
In this case a paragraph was printed about a company and its chairman Mr. Lewis stating that
the fraud squad was investigating them. A claim for defamation on the literal meaning failed.
Innuendo was raised and claimed but the courts rejected this stating the test was objective
and there was no way a reasonable person would assume that a police investigation indicated
that Lewis and the company were guilty of such conduct. Even if they could possibly infer
from the paragraph that Lewis and the company might be suspected of fraud.
7.6.4 Does the statement refer to the claimant?
If ones mentioned by name it‟s simple otherwise it‟s a question of the view of the reasonable
person. Meaning would that reasonable person be able to tell that they refer to the claimant?
Morgan v Oldham Press Ltd [1971]
A newspaper article in The Sun reported a girl had been kidnapped by a dog-doping gang
however this was incorrect and the girl had been staying with Morgan at the time. The
claimant produced witnesses who stated that having read the article they assumed he was part
of the gang as they had seen the two together. Majority of the House of Lords held that on the
facts there was sufficient evidence to find that the statement referred to him. It was not
necessary to find a specific pointer in an article.
48 | P a g e
The meaning of statement has to be judged at the time of publication as a rule, however the
courts won‟t allow it to be used as a cover up for defamatory statements made but the
claimant is identified later on. Consider -
Hayward v Thompson [1982]
 Court of appeal admitted evidence in an article (second one printed) that was printed
later identifying the plaintiff whereas the first article referred to him as a wealthy man
and on this basis both articles were found to be defamatory
 It‟s irrelevant is whether a defendant intends to refer to the claimant as long as

reasonable persons find the statement defamatory and refer to the claimant then the
defendant who publishes them will be liable
See Hulton & Co. V Jones [1910] AC 20
Task: Can there be such a thing as group defamation. Use the resources available to you to
check whether or not this can happen then see attachment on the student portal later in the
week.
7.6.5 Has the statement been published to a third party?
This is a vital requirement it‟s not enough that the defendant sends a letter to the claimant
making accusations; it‟s only when the letter is seen by a third party or published that the
claimant's reputation will be at stake or harmed. Publication can be to an individual or mass
public so when we say publish we are not referring to the press. It just means that the libel or
slander has come to a third party who‟s now seen it.
This requirement is obviously met by printing an article in a book or paper or shouting a

remark in a lecture hall. Publication requires words to be intelligent and reach the third party.
Problems arise when one claims they did not intend to publish the words. I.e. A writes a
defamatory letter to B and B's wife sees the letter
Think point: has publication occurred is the wrong person read a defamatory letter not
intended for them?
49 | P a g e
The issue of reasonable foresight is required and in play from this point forward. See –
 Theaker v Richardson [1962] the same scenario above happened and the court held
that it was foreseeable the husband would open the letter in a brown envelope
 Huth v Huth[1914] however they said no for a butler
7.7 Defences
Are there any applicable defences?
Just like every other tort there are defences, there are three main types (list is not exhausted).
 Justification
 Fair comment
 Privilege
Note: recommended reading for privilege will follow on the portal
Defences protect in two ways-
 One where person has told the truth and

 Secondly where word published are in the public‟s interest
7.7.2 Justification
This is a valid defence to show that words published are true. The claimant does not have to
show that the statement is untrue and the burden is on defendants to show the statement were
true and has to justify this on a balance of probabilities.
Wakley v Cooke (1849)
Claimant has no right to complain about true statements they merely bring him to the level he
should be
M‟Pherson v Daniels (1829)
Words need only be substantially true they do not have to be 100 spot on thereby reducing
the burden on the defendant a little. See-Alexander v North Eastern Railway co (1865)
50 | P a g e
Task: Find defamatory statements that have successfully used the justification statement and
take note of the manner in which it was allowed.
7.7.3 Fair Comment
Another valid defence, the defendant does not have to show that statement was true just that
he has exercised the right to criticize the claimant. To satisfy the requirements the following
have to be considered-
It must be in the public interest

Must be comment (on a given set of facts)
Must be fair and honest
7.8 ACTIVITIES
weeks
7.9 SUMMARY
Defamation is one of the most interesting and diverse tort you will come
across as the scenarios are far more wide raging than the others. Always
remember the four stage test when it comes to this tort as it will guide you to
what is required.
In the next unit we shall be examining the tort of strict liability.
51 | P a g e
8.0 UNIT EIGHT: Strict Liability
8.1 INTRODUCTION
In tort, strict liability is the imposition of liability on a party without a finding of

fault (such as negligence or tortious intent). The claimant need only prove that the
tort occurred and that the defendant was responsible. The law imputes strict liability to
situations it considers to be inherently dangerous1. This in turn aim to discourage
recklessness in individuals and encourages them to make sure that they have taken all
possible precautions.
8.2 AIM
establish what strict liability is

See how it operates and when it applies
Identify the requirements and see what exception might exist
8.3 OBJECTIVES
 Deal with questions regarding the unit topic
 Identify the scenarios it applies in
 Understand why it‟s a special type of tort
 Acknowledge what exception are available
8.4 TIME REQUIRED
1
Cantú, Charles E. (January 2, 2002). "Distinguishing the Concept of Strict Liability for Ultra-Hazardous
Activities from Strict Liability Under Section 402A of the Restatement (Second) of Torts: Two Parallel Lines of
Reasoning that Should Never Meet"
52 | P a g e
hours (6 for studying and 2 for tasks and consolidation
8.5 REFLECTION
therefore make sure you do all of them
8.6 What is it?
Simply put strict liability is where no fault is required to prove the tort has occurred but just
the mere fact that an act has occurred and there is causation.
Think Point: is this harsh or fair to impose liability without fault?
However here is a dictionary definition to consider, “when a plaintiff makes a motion to

prove harm has occurred without having to show how or why to collect damages” (Black‟s
Law Dictionary).
Therefore is could be said that the following happens
 Liability is imposed on D without finding fault
 Usually in inherently dangerous scenarios
53 | P a g e
 C only has to show that tort occurred
You will see that as we proceed with this unit strict liability is a special type of tort and has
been described so by a number of cases and judges. The cases that we shall examine will
illustrate why this is a special type of tort. The first and most important case under strict
liability that we examine is the case of Rylands v Fletcher (1868) one could consider this
the holy grail of strict liability.
Here is a brief outline of facts
B a mill owner hired independent contractors who were apparently competent. They were to
construct a reservoir to provide water to the mill. In the process of work the contractors
found some old mine shafts and passages on B‟s land. They appeared to be filled in with
earth so the contractors did not block them and when the reservoir was filled the water burst
onto and flooded A‟s land the defendant owned a mill and constructed a reservoir on their
land. The reservoir was placed over a disused mine. Water from the reservoir filtered through
to the disused mine shafts and then spread to a working mine owned by the claimant causing
extensive damage to A‟s land.
 The Court affirmed Blackburn‟s judgment in the court of exchequer chamber
 Stated this, “we think that the rule is, that the person who for his own purpose brings
on his lands and collects and keeps there anything likely to do mischief if it escapes,
must keep it in at his peril, and, if he does not do so, is prima facie answerable for all
the damage which is the natural consequence of its escape”
 This is what we refer to as the rule in/of Rylands and Fletcher Lord Cairns and Lord
Cranworth echoed the same sentiments when commenting on the matter at hand.
 Lord Cranworth stating that “if a person brings, or accumulates on his land anything
which if it should escape may cause damage to his neighbor he does so at his peril. If
it does escape and causes damage he is responsible however careful he may have
been”.
 However, he can excuse himself by showing that the escape was owing to the
plaintiff‟s default or perhaps that the escape was the consequence of vis major or act
of God…….
Therefore, one can say that the basis of this liability in such types of cases is the intentional
behavior of the defendant in exposing the community to abnormal risk. The rule is very
straight forward most of the times however it‟s when the application comes into play that is
when it gets interesting. Looking at the quote where the rule is highlighted it can be broken
down into two parts the first is that there is an item that has been brought onto the land by an
individual that was not naturally part of it. The second part is that the item brought onto the
land ends up causing some significant damage to a neighboring property which raises an
issue and brings about a right to claim for the party that has suffered.
54 | P a g e
Images courtesy of Bing Search
Think Point: what do you think could be considered strict liability taking into consideration
the definition and break down above?
Critical Point: So is the rule fair?
On a general principle the rule seems just and fair i.e. for the neighbour who suffers as a
result of something that the other has brought onto their land that was not naturally there and
fails to contain it therefore resulting in some form of damage to the neighbour then surely
then he should be obliged to correct that. Why you might ask? But for his act in brining that
item no damage would have occurred therefore.
8.6.1 Transco v Stockport Metropolitan Borough council [2004] UKHL 61
Facts:
A Highrise building had been supplied water though a high water pressure pipe. The Pipe
burst and a considerable amount of water had been released before the burst pipe was
55 | P a g e
discovered and fixed, water escaped into a land fill and along a railway line and under the
line was a gas pipe which had to be suspended. Repairs cost 93,681 Pounds
Where defendants liable?
House of Lords said no the defendants were not liable. Hoffman went on to say Rylands v
Fletcher was an innovation in being the first clear imposition of liability for damage caused
by an escape which was not alleged to be either intended or reasonably foreseeable. Fletcher
was a decision that an isolated escape is actionable as repeated escape would not raise any
question whether the escape was reasonably foreseeable.
Therefore, one can see that it‟s the single escape that raises the question whether or not it was
foreseeable and if not whether the defendant should all the same be liable.
8.6.2 As for the social background to the rule see the following-
Article for you to find and read Legal Liability for Bursting Reservoirs: The historical
Context of Rylands v Fletcher (1984) 13 L. Leg. Stud. 209
There was public anxiety surrounding the case at the time due to 250 lives being lost when a
reservoir burst, judicial reaction was to impose strict liability. However the rule had to be
more widely formulated due to the way common law operates.
8.6.3 Restriction to the rule
There are some restrictions to the rule that one should be aware of here is a list below to
consider and look at
 Statutory authority
 Acts of God and third parties
 Remoteness
 Escape
 Personal injury
 Non-natural user
We can no look at each in turn.
a) Statutory authority- A statute which allows or authorizes the construction of a

reservoir would most likely deal with the risk involved to others. It may so expressly
regarding the liability of the undertakers. It could provide that they be strictly liable
or no liability imposed at all on them at all. However, if the issue is not dealt with
expressly and the principle of Fletcher may apply so that cost should be internalized
then the undertakers should be liable and it makes no difference that‟s it in the
56 | P a g e
interest of the public the risk is borne by the public not the individual (Bramwell B).
Within a year of Fletcher Blackburn J noted that in the absence of negligence;
damage caused by operations authorized by statute no compensation was allowed
unless that statute expressly said so.
See: Hammersmith and City Railway Co v Brand (1869) which stated that the default
position is that the owner of the injured land suffers a private loss for the benefit of the public
In Gaddis v Proprietors of Bann Reservoir (1878) Blackburn stated that “…no action will
lie for doing that which the legislature has authorized, if it be done without negligence,
although it does occasion damage to anyone.
Therefore one can see that there is reluctance by the courts to support a claim where statutory
authority supersedes.
See Green v Chelsea Water Works Co. (1894)
b) Acts of God and third parties - Natural events such as falling leaves blocking drains
and heavy rains are often referred to as acts of God in tort. Early cases on Fletcher
quickly established that on natural events (acts of God) and third parties we exclude
strict liability. In Carstairs v Taylor (1871) a rat making a hole in a wooden gutter
box was considered an Act of God. Do you agree? In Nichols v Marsland (1876) a
very heavy rainstorm was also a sufficient excuse as well. Another example is that of
Rickards v Lothian [1913] where the same was said of a vandal who blocked a
washbasin and turned on the tap leaving it running and causing flooding.
However, acts of third parties and natural events are not defences to strict
criminal liability s85 (1) of Water Resources Act 1991 in English Law.
c) Remoteness - In Rylands v fletcher where the rules applies the defendant will be
liable even if he or she could not have reasonably foreseen the escape that would
ensue, so the question becomes how much is one liable for? According to Cambridge
Water Co v Eastern Counties Leather Plc. the house of lords decided that liability
was limited to damage which was termed natural i.e. reasonably foreseeable,
consequence of the escape. Lord Goff added – “liability should be no more extensive
that it would have been in nuisance if the discharge itself had been negligent or
intentional”. This illustrates that Rylands v Fletcher was established to create liability
for an isolated escape only (i.e. unforeseeable).
d) Escape – in Read v J. Lyons &. Co LTD [1947] a far-reaching attempt was made to
develop the rule into a broader principle that an enterprise which created an unusual
risk of damage should bear that risk. This invitation however, to generalise the rule
was flatly rejected. The rule was primarily concerned with the rights and duties of
occupiers of land, and escape from the defendants land or lack of control is an
essential element.
57 | P a g e
e) Personal injury - In some cases early on plaintiff recovered damages under the rule
for personal injury See Shiffman v St John of Jerusalem (Grand Priory in the
British Realm of the Venerable Order of the Hospital) [1936], or Hale v Jennings
Bros [1938]. However dicta in Read v J. Lyons & Co cast doubt on whether the rule
protected anything beyond land related issues. As one can see there was a lot of
confusion but luckily two decisions later settle this issue. See Cambridge Water Co
v Eastern Counties Leather Plc. [1994] which decided that fletcher was a special
form of nuisance and Hunter v Canary Wharf Ltd [1997] which noted that
nuisance was a tort against land and therefore concluding that the rule only applied to
land related issues. Therefore personal injuries are not recoverable under the rule.
f) Non-natural user- Fletcher was about the escape of something brought onto his land
by a defendant that was not naturally there. Attempts were made to make it cover a
wider respect of items other than just bursting water reservoirs. Most attempts have
been rejected and the most generalized was formulated by lord Moulton in Rickards
v Lothian [1913] – “it is not every use to which land is put that brings into play that
principle. It must be some special use bringing with it increased danger to others and
must not merely be the ordinary use of land or such a use as proper for the general
benefit of the community”. Distinctions are very hard to explain as to what will and
what will not be allowed in terms of the „ordinary use of land‟ and „proper for the
general benefit of the community‟. Take a second you self and see in you can make
such a distinction. Lord Goff in Cambridge Water Co noted the difficulties but
expressed hope that they would be given a distinction in due time.
8.6.4 Where does the rule stand today?
There are points that can be made on the rule as of today. Consider these below,
 It‟s a remedy for damage to land or interests in land however due to the rise in
insurance there can are very few properties commercial or domestic that are not
insured therefore disputes are usually between property insurers and liability insurers.
 The rule does not apply to works authorized by statute meaning it will have no
application to really high risk activities and in the absence of negligence the occupies
land which has been injured would have no remedy
 It‟s not particularly strict. Why? Because it excludes liability when the escape is for
the most common reasons i.e. vandalism or unusual natural events.
Research Point-see how, many strict liability cases you can find in Zambian law in the
last 10 years
58 | P a g e
 The term natural use of land is too broad and ill-defined making it very difficult to
succeed under the Ryland's v fletcher rule no new-found cases as of world war 2
 Lastly cases which are not attributed to an unusual natural events or acts of third
parties usually give rise to an inference of negligence
Therefore, is worth asking is the rule worth keeping at all?
8.7 ACTIVITIES
weeks
 Read page 244-248 bring your thoughts as well after this directed reading to the next
tutorial and a discussion shall be held.
2.11 SUMMARY
In tort, strict liability is the imposition of liability on a party without a finding

of fault (such as negligence or tortious intent). The claimant need only prove
that the tort occurred and that the defendant was responsible. The law imputes
strict liability to situations it considers to be inherently dangerous. This in turn aim to
discourage recklessness in individuals and encourages them to make sure that they have
taken all possible precautions.
The next unit that we shall be looking at is nuisance.
59 | P a g e
9.0 UNITE NINE : Nuisance
9.1 INTRODUCTION
Nuisance. What a great word. Just say it again. Nuisance. The last time you heard
the word nuisance being said was probably when your parents were complaining
about how much of a nuisance it was to load their car up and cart you off to school. That
time, and also your tort law lectures earlier this semester (if you have not completely
forgotten – uh oh!).
Causing a nuisance is a tort in Zambian and English law, and nuisance can be both private
and public.
9.2 AIM
 Establish nuisance
 What are its elements
 Look at each type separately
 Are there any defences
9.3 OBJECTIVES
 You will be able to address questions on nuisance and how it operates
 You will be able to differentiate between nuisance and trespass to land
 Appreciate the rule from Rylands v Fletcher in relation to nuisance
60 | P a g e
9.4 TIME REQUIRED
9.5 REFLECTION
9.6 What is it?
There are two types of nuisance namely Private and Public. A claimant can bring an action
where he or she has suffered particular harm from a nuisance which has materially affected
the reasonable comfort and convince of life of a sufficiently large number of citizens who fall
within the sphere or neighbourhood of its operation.
Nuisance and the rule in Rylands v Fletcher (1865)
The Tort of nuisance is very different from the tort discussed earlier which seeks to protect
the claimant‟s ability to use and enjoy his or her land; here fault plays a minor role. The main
objective of the courts is to protect the claimant‟s rights in the land they own, remember
Fletcher only deals with isolated cases of interference with one‟s land. We shall examine this
as well as Hunter v Canary Wharf and Cambridge Water Co v Eastern Counties
Leather and their subsequent impact as two significant cases.
 Private nuisance
Private nuisance is unlawful interference with a person‟s use or enjoyment of land or some
right over it or in connection with it (Winfield & Jolowicz on Torts)
61 | P a g e
Private nuisance, as defined in Bamford v Turnley (1860), amounts to “any continuous
activity or state of affairs causing a substantial and unreasonable interference with a
[claimant's] land or his use or enjoyment of that land.” The person affected must have a legal
interest in the land, therefore meaning that tenants of properties are protected from private
nuisance. Exceptions have been made, such as in Khorasandjian v Bush (1993), where it
was ruled that a woman living in her mother‟s house was entitled to an injunction to prevent
telephone harassment. This was later overruled in Hunter v Canary Wharf 1998.
The creator of the nuisance is liable for private nuisance. Generally, therefore, your landlord
is not liable for the racket you make every Saturday night. However, an exception may be
made if your water pipes are ridiculously loud and the landlord knew about this problem
before you moved in.
For there to be a claim, the claimant must be able to show that damaged was caused. This can
be physical damage, discomfort or inconvenience. Interference is usually a result of
continuous events and cam amount to physical invasion, noise or smells. It is not an
interference when „things of delight‟ are affected. This was discussed in Hunter v Canary
Wharf 1998, where it was argued that a TV signal being blocked by the construction of a
skyscraper was a nuisance.
Nuisance must also be unreasonable, but this varies case by case. For instance, locality must
be taken into account, as must the time of day. Noisy road works taking place in the middle
of Cairo Road is a lot different to the same road works taking place in a rural village.
Similarly, time must be considered; road works are less unreasonable at midday then they are
at 11pm.
Nuisance is one of the exceptions to the rule that malice is not relevant in tort law. In
Christie v Davey 1893, it was ruled that the defendant was deliberately creating a noise in
order to frustrate the claimants.
 Public nuisance
Public nuisance is a tort and a crime. It “materially affects the reasonable comfort and
convenience of life of a class of…. subjects.” So what amounts to public nuisance? Picketing
in the road, as under Thomas v NUM, is a public nuisance, as is disrupting traffic by
queuing in the road. Public nuisance is initially a crime rather than a tort; only if the claimant
can prove that they suffered “special damage” over and above the effects on the other people
affected.
62 | P a g e
9.6.2 Private Nuisance
There are three main forms of private nuisance that one will usually come across. There are
 Physical injury to land i.e. flooding or noxious fumes
 Substantial interference with enjoyment of land (smells, dust, noise)
 Encroachment on a neighbours land i.e. by spreading roots or overhang branches
In order to determine which is which one simply must look at the relevant facts in a case
study. All of them lead to some form of hindrance caused on the claimant by the defendant.
All three look to protect the claimant's use and enjoyment of land from an activity or state of
affairs which the defendant is responsible, the main distinction drawn by the courts is
between physical damage to property and interference with ones enjoyment. This means the
courts are more likely to find a nuisance where there is physical damage to property caused.
Personal discomfort by itself is not enough unless it is materially interfering with the
ordinary comforts physically of human existence and not according to elegant or dainty mode
and habits of living. Therefore, whilst courts are willing to protect personal comfort they are
more willing to protect the claimant‟s property.
So then, the question remains “What amounts to nuisance”?
Obviously it‟s not every interference with use and enjoyment of land that can amount to
private nuisance there has to be some limitation.
Think Point: think of a few scenarios that might constitute a nuisance
The tort of nuisance has to balance the rights of both the user of land and their neighbours;
therefore the test is one of a reasonable user. Balancing the interests of the defendant to use
his or her lands as is legally permitted against the conflicting interest of the claimant to have
quiet enjoyment of his or her land may not be as easy as it sounds hence the use of the test.
Ordinary use of a home will not amount to a nuisance if you have thin walls.
9.6.3 Things to take into consideration
 Reasonable user - Please Note this is not the standard of reasonable care as in
negligence. This is one of give and take meaning you both have to reasonable in what
you expect from the other and how they will live. Unreasonable behaviour is difficult
63 | P a g e
to establish or define something which is exacerbated in that it does not require that
the defendant‟s actions be deliberate. Nuisance can occur even if all reasonable steps
have been taken therefore the court‟s approach is very results based. They might ask-
Is the result of the defendant's conduct such that it is likely to cause unreasonable
interference with the claimant use and enjoyment of land? One has to remember that
it‟s not about blaming the defendant but about protecting the claimant. So
determining whether one has been reasonable or not plays a big part.
 The courts will take a number of factors into consideration when considering
the question above. These include
i. The nature of locality

ii. Duration and frequency of defendants conduct
iii. Utility of defendants conduct
iv. Abnormal sensitivity of the claimant
v. Malice on the part of the defendant
We shall examine each one separately in order to appreciate what the courts got through.
Remember you have to strike a balance between the two parties Lord Wright in Sedleigh-
Denfield v O‟Callaghan [1940] noted “a balance has to be maintained between the right of
the occupier to do what he likes with his own and the right of his neighbor not to be
interfered with”.
9.6.4 Requirements
There are two elements that are required for a private nuisance to be established
 Continuous interference – basically the interference has to be continuous and
not a one off. In De Keyser‟s Royal Hotel v Spicer Bros Ltd (1914) noise
generated at night during building works amounted to private nuisance
However at times a single act too may suffice such as British Celanese v
Hunt (Capacitors) Ltd foil which had blown from the defendants property
and caused electric damage to a substation which in turn caused a blackout
was considered a private nuisance. See Crown River Cruises v Kimbolton
Fireworks [1996].
 Reasonable user – the subjective test of the reasonable user as already
mentioned above in 9.6.3.
64 | P a g e
Having these two requirements makes it makes filing for claim for nuisance a possibility.
See the Zambian case - National Hotels Development Corporation (T/A Fairview Hotel)
v Motala (2002) where;
 Appellant used to play loud music at night on the terrace of the hotel
 Respondent lived nearby and was annoyed by the noise
 Appellant alleged that without music no one would come which meant losses were
being made
 Having regard of Sedleigh-Denfield v O‟Callaghan and trying to balance the needs
of the plaintiff and those of the respondent i.e. minimum music at reasonable level
and reasonable hours
 There was a blanket ban which was considered too harsh at the time as it did not
protect the rights of the defendant therefore the appeal but the defendant was.
Therefore one can see how important it is to look at both parties and take their needs into
consideration. Continuous interference as a requirement is very easy to determine what the
reasonable user as already established is. There are five factors that need to be considered,
let‟s examine each one individually.
 The nature of locality;

It‟s not relevant where there is physical damage suffered by the claimant but is where
the claimant has suffered personal discomfort and inconvenience. In Sturges v
Bridgman (1879) it was stated that “what would amount to nuisance in Belgrave
Square would not necessarily be so in Bermondsey” Thesiger L.J. Therefore there is
a question of location when it comes to this. If one lives in an industrial area where
there is noise coming from the factory the court will examine the nature of that
location when a nuisance claim is brought forward. The nature of locality can change
over time and therefore the courts must look at it as It is today (could go from
industrial to residential). See Gillingham BC v Medway (Chatham) Dock Co. ltd
[1993] where planning permission to develop disused naval dock to a 24 hours
commercial dock was an issue and held it did not change the character of the
neighbourhood.
65 | P a g e
 Duration and frequency;
Common sense dictates you have to put up with some inconvenience with your
enjoyment of land. However it‟s unfeasible if it‟s happening all the time and for long
periods. The courts will use a common sense approach In De keyser‟s Royal Hotel v
Spicer Bros Ltd the courts were willing to grant an injunction for temporary
interference caused by pile driving in the middle of the night, but confined the
injunction to banning work between 10.30pm and 6.30am.
An action for damage to property even if temporary will likely succeed although
damages will be given as opposed to an injunction see Crown River Cruises v
Kimbolton Fireworks [1996] where the plaintiff‟s vessel suffered damage as a result
of a fireworks display which only lasted 20 minutes but the debris some of it hot and
burning fell onto the property which was potentially flammable. Damages were
awarded.
 Utility of the defendants Conduct ;

This is not a really a significant consideration as private nuisance is concerned with
the results of the defendant‟s conduct on the claimant and not on the community as a
whole. However it still has some influence which will be looked at later when
considering the remedies available
 Abnormal sensitivity of the claimant;

The result of the defendants conduct must be such as to unreasonably affect the
ordinary citizen. Discomfort resulting from personal sensitivity to noise or heat which
would not affect the ordinary persons is not enough to bring a claim. Robinson v
Kilvert (1989) is the leading case where the defendant had a shop on the lower floor
which required hot and dry air. The plaintiff floor temperature rose to 80F (26
degrees Celsius) which in turn diminished the value of the brown paper he had kept.
The heat was not such as to affect ordinary paper or to cause discomfort to the
plaintiff‟s workforce. Therefore, the court refused to award damages to the plaintiff
and said he had taken an exceptionally delicate trade and had not shown an actionable
nuisance. This illustrated that one cannot be expected to compensate people for every
interference suffered no matter how sensitive. However, once an actionable nuisance
is shown then the claimant could recover damages to the full extent of their loss even
66 | P a g e
where the result is from an exceptionally delicate use of land. In McKinnon
Industries ltd v Walker [1951] damaged orchids as a result of fumes from the
defendant‟s factory was seen as sufficient.
However how as you self this; how do you define sensitivity?
See the recent decision below to at what is reasonable in the circumstances Network
Rail Infrastructure ltd v Morris (t/a Soundstar studio) (2004).
 Malice
When assessing if the defendant use of his land is reasonable their state of mind at
that time will be taken into account. This may be deemed unfair but there is good
authority that malice may encourage the defendant‟s actions. Christie v Davey
[1893] is the lead case in this area. The plaintiff was a music teacher who gave
lessons at home the defendant her neighbour found the music irritating and chose to
retaliate by knocking on the party wall, banging trays, whistling and shrieking. An
injection was granted to the plaintiff, and it was held that „what was done by the
defendant was done only for the purpose of annoyance and in my opinion it was not a
legitimate use of the defendant’s house‟ according to North J. Hollywood Silver Fox
Farm ltd v Emmett [1936] followed Christie as an injection was granted against a
defendant who had deliberately fired guns on his own land near the boundary the
plaintiff‟s house. The plaintiff was in the business of breeding silver foxes hence the
acts of the defendant caused the foxes some stress which resulted in them refusing to
breed and miscarry and even kill the young. Although the use of land for breeding
foxes was sensitive it was the element of malice that made it sufficient to overcome
the usual objection.
However, contrast it with House of Lords case of Bradford Corp v Pickles [1895]
where the defendant drained his land with the intention of diminishing the water
supply which would in turn force his neighbours to buy his land. The injunction was
not granted House of lord refused to note the element of malice and moved to
distinguish. They distinguished from Christie on two grounds
i) In Bradford the plaintiff had no right to receive the water therefore no right had
been interfered with to establish a nuisance
67 | P a g e
ii) Secondly the defendant had done no more than exercise his right to appropriate or
divert underground water to obtain a better deal from the plaintiff
9.7 Defences
As WITH other TORTS there are defences that are available to the tort of nuisance. The
general defences of voluntary assumption of risk and contributory negligence do apply
however details of those shall be considered a lot later. In the meantime you just have to be
aware of them. As for now we shall limit ourselves to defences that are peculiar to nuisance
There are four that we shall consider these are;
i. Statutory authority- Probably the most significant of the defences available. Quite a
number of nuisances are a result of activities carried by local authorities or those
bodies acting under statutory power i.e. local councils fixing a road or general repairs
somewhere. If their actions are within what is permitted in the statute as authorized
by parliament then one cannot challenge them even through the courts. Parliament is
said to have taken into account all factors to be considered, that mean all the
competing interests and determined which is the to succeed in the interest of the
public. Furthermore, whether or not compensation should be paid to those who have
been affected.
 What about planning permission? It is vital to distinguish between the defence
itself and planning permission which is just permission to build a particular building
It doesn't mean that his or her actions have been permitted by parliament. Planning
permission is at most to be considered with regards to identifying the nature of the
locality of the nuisance. Hence the question being very different in that it as follows:
does the defendant have statutory authority to commit the nuisance. So, the vital
question becomes one where we ask whether the operations or activities causing the
alleged nuisance are within the authority that the statute as given? Generally, that will
be the case, as the statute states it expressly or it is by necessary implication that the
nuisance is authorized or it‟s an inevitable consequence of the execution of the
authorized activities.
Think point; is it fair at all?
The leading case in this field is Allen v Gulf Oil Refining Ltd [1981]
68 | P a g e
 Gulf oil obtained its own private act of parliament to authorize its expansion
into Milford Haven, South Wales the Act provided specifically for the
acquisition of all necessary land and the construction of a refinery however
there was no express provision for the use and operation of the refinery once
completed. Once completed the locals complained about the noise and the
vibrations emitted by the refinery. What do you think the court said?
 House of Lords took the question as one of statutory authority. That is, was
the nuisance authorized expressly or implicitly by the relevant statute? If so
then there would be no liability. The burden was on the defendant to prove
that was in fact so. The court held with a majority of 4-1 that the operation of
the refinery was implicitly authorized by the act that had been provided to
Gulf. The nuisances were inevitable and Gulf therefore had a solid defence to
the claim brought forward. The claimants would only have a remedy to the
extent to which any nuisance exceeded the statutory immunity. The nuisance
however will not be inevitable if it has been carried out negligently by the
defendant. Negligence here is a special kind so as to require the operators to
carry out the operation and conduct their operations with all the reasonable
regard and care to the interests of the other person. See- Wildtree Hotels Ltd
v Harrow L.B.C [2001] per Lord Hoffman. Note that an inevitable nuisance
even when committed without negligence is unlikely to be considered
authorized if the statute contains a nuisance clause stating that nothing shall
exonerate the undertaker from liability for nuisance. See Department of
Transport v N.W. Water Authority [1983].
Furthermore if contactor has the choice of how to exercise a statutory power
and uses an option that creates a nuisance when there are other options that
would not cause such problems then it is unlikely to be considered authorized
Metropolitan Asylum District v Hill (1881).
So one can clearly see that statutory authority will prevail; but only if it‟s within the act itself
and its set parameters.
ii. 20 year prescription

Prescription provides a means by which the defendant obtains a legal right to act in a
certain way which would ordinarily be contrary to the law due to the passage of time.
It will be a valid defence if the defendant can show that the nuisance complained of
69 | P a g e
had interfered with the claimant interests in land for more than 20 years. This applies
only to private nuisance though and cannot apply to public nuisance on that basis that
the length of time should not legitimize a crime.
The period is judged very carefully because the law does not easily diminish property
rights and it will start from the time at which the nuisance is known by the claimant to
affect his or her interest. There are some difficulties in relying on this defence though.
In Sturges v Bridgman (1879) A confectioner had used large pestles and mortars at
the back of his premises for more than 20 years, his premises were adjacent to the
garden of a doctor who made no complaint until he decided to put up an office at the
end of his garden then for the first time he found that the noise and vibration
materially interfered with the pursuit of his practice.
What do you think happened?
The Court granted him an injunction despite the fact that the noise and vibrations had
existed for over 20 years and that he had chosen to build in his garden in the full
knowledge of the defendants operations it was no defence that the claimant came to
the nuisance. Therefore the case shows that the defence will only be successful where
the nuisance has affected the claimant for the required period of time
iii. Inevitable accident

This defence is based on the fact that the damage suffered by the claimant occurred
despite all reasonable care being taken by the defendant. On that basis this defence
can only apply in torts where the exercise of reasonable cares necessary for liability.
Therefore it has a minimal role in the tort of nuisance and is only relevant where
liability is dependent upon proof of negligence.
iv. Acts of strangers

This defence is one which is subjected to the principle from Sedleigh-Denfield v O‟
Callaghan (1940) with regards to the balancing of interest of both parties.
9.8 Ineffective Defences

These are examples of defences that have been rejected by the courts
a. The claimant came to the nuisance
b. The defendant‟s conduct has a social utility (has benefit to the public at large)
70 | P a g e
c. Jus Tertii (third party has a better title to the affected land than the claimant and
therefore should bring the action)
d. The nuisance is due to many
9.9 Relationship between private nuisance and other Torts
It is important to distinguish private nuisance from other torts such as negligence and
trespass which are usually claimed in the same action.
 Private nuisance and negligence
This has caused issue due to a number of cases which focus on negligence in
determining whether the defendant has committed a nuisance. In Goldman v
Hargrave (1967) the clearest example Lord Wilberforce said “ the present case is
one where liability if it exists rests upon negligence and nothing else whether it falls
within or overlaps the boundaries of nuisance is a question of classification which
need not here be resolved”. However in Leakey v National Trust Megaw L.G
describes the claim as a nuisance and stated that earlier cases are distinct from
ordinary claims in negligence because
A) They impose liability for an omission
B) They impose a subjective standard of care
The two torts are conceptually distinct and this was emphasized in Hunter v Canary
Wharf Ltd [1197] and Cambridge Water Co v Eastern Counties Leather where it
was noted that the central concept of private nuisance is that of a reasonable user and
is results based the other distinction is the private nuisance protects interest in land
where as negligence looks at personal injury.
 Private Nuisance relationship with Trespass

Both protect people who have interest in land or exclusive possession. Trespass
involves an intentional and direct act which interferes with land it is actionable
without proof of damage. Nuisance on the other hand involves an indirect act which
is only actionable on proof of damage.
Think point: if in scenario one, one throws a log on someone else‟s lands what will it
be and if in scenario two the log rolls onto the other person land what will it be.
71 | P a g e
One will be liable for trespass even if it does not cause damage or injury to property
9.10 ACTIVITIES
• Make sure you read all the cases that are mentioned in full
• Your weekly tutorial questions will be available on the portal as usual later in the weeks
9.11 SUMMARY
Simply stated a private nuisance is an interference with the use or enjoyment

of land that causes injury in relation to an ownership right in that land whereas
a public nuisance may be defined as an unlawful act or omission, which is so
widespread in range and indiscriminate in its effect that it obstructs, damages or
inconveniences the rights of the community. While the same action may amount to a private
and public nuisance, an individual can only sue in tort in the latter if they have suffered
'particular' harm, i.e. an individual can show they have suffered harm that is different from
that suffered by the general public.
Next we move onto the tort of negligence.
72 | P a g e
10.0 UNIT 10: NEGLIGENCE
10.1 INTRODUCTION
Negligence can be defined as a breach of legal duty to take care which results in
damage to the claimant- Winfield and Jolowicz. It not usually concerned with harm
inflicted intentionally rather its harm that is caused accidentally or through lack of care.
However note that it involves much more than just proving it was a careless act or
behaviour.
Images courtesy of Bing Search
10.2 AIM
• Separate the elements of it
• Look at each individually and examine them
• Learn to address a negligence question
• Have a good understanding of the tort of negligence
73 | P a g e
10.3 OBJECTIVES
 Address questions and issues on negligence
 Appreciate its complexities
 Understand the ways in which its separated
10.4 TIME REQUIRED
10.5 REFLECTION
74 | P a g e
10.6What is it?
To establish it a claimant must prove three things
• The defendant owes the claimant a duty of care
• The defendant has acted in breach of that duty and
• As a result the claimant has suffered damage which is not too remote a
consequence of the defendant‟s breach
However in practice not all three elements may be involved .i.e. a motorist driving carelessly
the court will not embark on a detailed inquiry whether a duty is owed because it something
that„s already well established. Rather the court will ask was the defendant actually careless
or perhaps whether the defendant‟s carelessness was the legal cause of the claimant loss.
Negligence is used a lot in law however one has to remember that negligence has a special
meaning. What it means when a tort lawyer uses it is that, the person has committed the tort
of negligence with all three of the elements having been established whereas the ordinary
meaning of it might not apply to negligence itself it is still important particularly to other
torts such as nuisance.
75 | P a g e
In Donoghue v Stevenson [1932] Lord Atkins formulated the general principle known as the
neighbourhood principle by which the existence of a legal duty of care could be determined
thus effectively inventing the modern tort of negligence. "The rule that you are to love your
neighbour becomes in law you must not injure your neighbour; and the lawyer's question
“Who is my neighbour?" receives a restricted reply. You must take reasonable care to avoid
acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Who then in law is my neighbour? The answer seems to be persons who are so closely and
directly affected by my act that I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions which are called in question‟.
10.7 The defendant owes the claimant a duty of care
There is the first of the three elements that we shall look at and examine when it comes to
establishing the tort of negligence. The first consideration is to establish whether the claimant
was owed a duty of care by the defendant. There different categories of duty of care owed
 Traditional Categories (patient/doctor relationship, driver and passenger, driver and

other road users, manufacturer and consumer, lawyer and consumer)
 For novel cases not yet categorized; then the test for determining duty of care must be
applied, by establishing that one or more of the three factors is present i.e. foresight,
proximity and justice/fairness.
 Consumers : see Donoghue and Stevenson, Grant v Australian Knitting Mills
 Road Users: - A driver of a car owes a duty of care to other road users including
pedestrians. The Plaintiff must still prove that a duty of care was owed to him
specifically by the defendant to the road user. The courts will not impose a duty of
care if the P fails to prove it.
 Users and Purchasers of premises: - An occupier owes a duty of care towards visitors,
whether invited or trespassing, whose presence is lawful or otherwise, who suffers
injury during the course of their visit to the occupier‟s premises. (see Occupiers
Liability Act 1984)
The unborn Child: - A duty of care can be owed by the defendant to a plaintiff who was an
unborn child at the time of the accident.
76 | P a g e
Watt v Rama (1972) – (Australian Case) – P‟s mother who was pregnant with her suffered
injuries as a result of a motor accident due to D‟s negligent driving. P was subsequently born
and she suffered from brain damage and epilepsy. It was alleged that P‟s handicap was due to
the injury sustained by her either in the accident while unborn or in the course of her birth as
a result of injury to her mother. D denied that he owed a legal duty of care to P while she was
still in her mother‟s womb. Victorian Supreme Court held that since was born as a handicap
because of the injuries sustained by her as the result of the accident involving her mother
who was pregnant with her at the time of the accident; D owes P a duty of care.
It was immaterial whether at the time of the negligent act whether the victim was in existence
or not, so long as the victim was the member of the class reasonably likely to be adversely
affected by that at.
Therefore the TEST for determining the existence of Duty of Care is foresight,
proximity and fairness.
10.7.1 Current test; foresight, proximity and fairness
The courts now appear to favour what has been described as the incremental approach
recommended in Caparo Industries v Dickman 1990 and it deals with the question in four
stages;
 First Stage is to consider whether the consequences of the defendant‟s act

were reasonably foreseeable
 Second stage is to ask whether there is relationship of proximity between the
parties
 Third Stage is to consider whether in all the circumstances it would appear to
be fair, just and reasonable that the law should impose a duty of a given scope
upon one party to the benefit of other.
Subsequent cases have approved this incremental approach
• Spring v Guardian Assurance 1995

77 | P a g e
• Jones v Wright 1994
10.7.2 First Stage: Foresight
The notion of foresight is derived from the case of Donoghue v Stevenson 1932 in which -
the claimant as a member of group who is likely to suffer harm as a result of the defendant‟s
acts or omissions was notionally of importance as a deciding factor for liability.
In Topp v London Country Bus (South West) Ltd 1993, - the claimant was unsuccessful
because he was unable to establish that the defendant ought reasonably to have foreseen that
a joy-rider would has stolen the bus which his employee left unattended in a lay by. His wife
was killed through the negligence of the unidentified joy rider when he collided with her and
knocked her off her bicycle.
In Margereson v JW Roberts Ltd, Hancock v Same (1996) – it was held that the owner of
an asbestos factory should reasonably have foreseen that children who played near the
factory might later in life develop pulmonary injury through dust contamination. A DOC was
owed to them.
Fardon v Harcourt – Rivington 1932
The court set out the reasonable man test for foreseeability: "If the possibility of danger
emerging is reasonably apparent, then to take no precautions is negligence; but if the
possibility of danger emerging is only a mere possibility which would never occur to the
mind of a reasonable man, then there is no negligence in not having taken extraordinary
precautions'."
10.7.3 Second Stage: Proximity
For application of proximity in establishing a duty of care see:
Bourhill v Young [1943] AC 92
Bourhill v Young [1943] AC 92 is a Scottish delict case, on the subject of how extensive an
individual's duty is to ensure others are not harmed by their activities. The case established
important boundaries on the scope of recovery for bystanders, or those uninvolved with
78 | P a g e
physical harm. Where a woman suffered psychiatric harm after walking onto the scene of a
motorcycle accident, she was deemed not to be a foreseeable victim, having not been in
immediate danger of physical harm.
This concept was considered in the case of Donoghue v Stevenson itself, this is an important
device for controlling the existence and scope of the duty of care in personal injuries cases.
In Yuen Kun Yeu v Attorney General of Hong Kong 1988, Lord Keith referred to
proximity as a synonym of foreseeability on the one hand, and on the other as referring to the
whole concept of the relationship between the claimant and the defendant as described in
Donoghue and Stevenson by Lord Atkin.
See John Munroe v London Fire and Civil Defence Authority 1997
Tort negligence, duty of care, no duty situations, public policy, no duty owed in
operations
D employed fire fighters who wrongly thought all the fires at C‟s premises had been put
out. One of the fires flared up again, causing damage to C‟s premises. C sued D and others.
Held: D owed no duty of care to C. The considerations set out in Hill are applicable as much
to the fire brigade as to the police. Imposing a duty of care would not improve the efficiency
of the service but would lead to defensive fire fighting. Above all, the imposition of a duty of
care in this situation would lead to a flood of claims, since many fires were created by Acts
of God or acts of criminals and lunatics, leaving only the fire service to be sued. Therefore
C lost.
In Hill v Chief Constable for West Yorkshire (1988) HL
[Tort – negligence – duty of care – no duty situations - foreseeability - breach - acts of

third parties - public policy] D the police failed to catch the "Yorkshire Ripper". C, the
mother of the late (13th) victim sued the police for negligence alleging inefficiency and errors
in their handling of the investigation. Held: The police owed no duty of care towards the
daughter to protect her from the Ripper. Some further ingredient is invariably needed to
establish the requisite proximity of relationship between the complainant and the defendant;
she had been at no greater risk than most other members of the public had. Again the C lost.
For application of proximity in establishing a duty of care see:
Bourhill v Young [1943] AC 92
79 | P a g e
10.7.4 Third Stage; What is fair, just and reasonable that the law should impose a duty
Considerations of “what is fair, just and reasonable” are in reality co-extensive with policy
arguments. In conclusion, while the courts maybe disinclined to take on the role of
legislators, they do have to take steps to keep the tort of negligence within reasonable bounds
and it is the use of policy considerations which allows them to do this. Winfield and Jolowicz
defined policy as; “The use of the word “policy” indicates no more than that the court must
decide not simply whether there is or is not a duty, but whether there should or should not be
one, taking into account both the established framework of law, and also the implications of a
decision that one way or the other might have for the operation of law in our society.” What
this means is that judges can and do make up law as they go along in response to changing
social conditions.
In Hemmens -v- Wilson Browne (A Firm) [1993] 4 All ER 826 A solicitor was not liable
in negligence, where his mistake might yet be rectified; this was an inter vivos transaction
and the parties could still resolve the position. Though a solicitor had a duty to the
beneficiary of a settlement, the settlor could still perfect the deed. In Ephraim -v- London
Borough of Newham Negligence of Local Government. A Local Authority was liable for its
negligent reference of a homeless person to unsafe premises. Housing Act 1985 65(4).
10.8 Breach of duty
We need to establish what amounts to breach of duty and in order to do so we look at case
examples to ensure we get a rounded understanding of how breach of duty operates in tort of
negligence. After proving that a duty of care is owed the next logical step to take is that of
establishing if there has been an actual breach of that duty. The standard of care that has to be
applied is that of the reasonable man; which is an objective test as you should know by
now. It‟s objective because it eliminates those who we consider too careful.
The reasonable man;
This test has been adopted in Zambia as mentioned in Daka v Attorney General (1990-
1992). In Glasgow Corporation v Muir [1943] members of a church picnic were having tea
80 | P a g e
in the park but due to bad weather they had to move indoors and with permission of the
appellant they used a room belong to them. Here they could consume their tea whilst the tea
urn was being moved in the passage it was dropped by one of the carries the tea escaped,
scalding 6 children, it was argued that the manageress should have foreseen the risk that the
tea would be spilt however it Held that she was not liable.
The degree of care required when taking others into consideration varies from situation to
situation when one is conducting their affairs and it varies according to the risk involved as
well. Liability is limited to those consequences of our acts which a reasonable man of
ordinary intelligence and experience so acting would have in contemplation. The duty is to
avoid doing or omitting to do anything which may have as its reasonable and probable
consequence injury to others and the duty is owed to those to whom injury may reasonably
and probably be anticipated if the duty is not observed. Again it comes down to how the
reasonable would contemplate things.
• See Bourhill v Young
The reasonable man is presumed to be free both from over apprehension and from over
confidence, meaning a sane individual. Although there is a sense in which the standard of
care of the reasonable man involves in it the application a subjective element if you consider
all things.
• In Bolton v Stone [1951] the claimant in this scenario was hit by a cricket ball which
was struck out from the cricket ground which was surrounded by a fence 17 feet high.
The fence was some 75 yards from the striker and hit the claimant 100 yards away,
only six balls had ever been struck over the fence in 28 years. Court held that the club
was not negligent. The test here is whether the risk of the damage to the person on the
road was so small that a reasonable man in the position of the appellant considering
the matter from the point of view of safety would have thought it right to refrain from
taking steps to prevent the danger therefore in that light it would be right not only to
take that into consideration but also how serious the consequences could be.
• Wells v Cooper [1958] the claimant was delivering fish at the defendant‟s house
when he tried to open the door, the handle came off and he lost his balance and feel,
the handle had been replaced by the owner who was an amateur carpenter. He had
used three quarter inches nails in doing so. The Court held he was not liable. The
standard of care and skill to be demanded in order to discharge his duty of care to the
81 | P a g e
plaintiff is that of a reasonably skilled carpenter this does not mean the degree of care
and skill will be measured by reference to contractual obligations as obligation to
quality.
In both cases you can see how the reasonable test comes into play. In both cases that test
shows that if all reasonable case has been taken then the possibility of the defendant being
liable in discharging his/her duty of care reduces.
Standard of care;
One needs to remember that when discussing or trying to establish breach of duty the word
duty in this context actually refers to the standard of care required. In Roberts v
Ramsbottom [1980] it was stated that a driver who suffers a stroke even though he is
unaware of the condition and loses control as a result is still liable. However in Mansfield v
Weetabix ltd [1998] ruling changed this and stated that Roberts was wrong on this point and
that a driver will not be held liable should be become unable to control a vehicle once a
debilitating condition manifests itself.
There are a number of factors relevant to standard of care-
• Foreseeability of harm - If the particular harm suffered by the claimant is not

foreseeable then the defendant will not be liable. This is obvious as the reasonable
man cannot be expected to take any precautions against unforeseeable risk. See Roe v
Minister of Health [1954] where the plaintiff went to hospital for a minor operation
but suffered permanent paralysis as a result of being given a spinal anaesthetic which
was contaminated with phenol. Contamination occurred when the vile containing the
anaesthetic was stored in phenol which in turn sipped into the vile through tiny
invisible cracks. At the time it was not know that contamination could occur this way.
The trial came in 1954 by which time the dangers had been known. Defendants were
held not be liable. Denning said although in 1954 it would be considered negligent if
it occurred; you had to look at it as in 1947. While a defendant will escape liability
where risk is unforeseeable it does not follow that he or she will automatically be
liable for all risk that is foreseeable. Risk must be reasonably foreseeable.
• Magnitude of the risk A reasonable person does not take precaution against risk that
is too small therefore one needs to consider two factors when assessing magnitude of
risk;
82 | P a g e
1) The likelihood of harm
2) The seriousness of the consequences
• See Bolton v Stone 1951 the Cricket case. The chances of injury in these
circumstances where very slight that the defendant were not negligent in continuing
to play cricket, ordinarily a careful man does not take precautions against every
foreseeable risk it would be impossible to do so for every foreseeable risk Lord
Oaksley. In Hilder v Associated Portland Cement manufacturers ltd 1961 the
defendant was an occupier of grass field who allowed some boys to play football
there, one of the boys kick the ball over a low fence which hit a motorcycle rider on
the other side who in turn suffered injuries. Defendants were held liable. The risk of
injury to a road user was much greater than the risk in Bolton it was not a risk a
reasonable person would have disregard off. The road was only 15 yards away but
also look at the seriousness of the consequences. The risk of harm must be weighed
against other factors including the seriousness of the consequences, if its harm does
materialise the more serious the consequences the greater the obligation.
• See Paris v Stepney Borough Council [1951]
The plaintiff was blind in one eye and only had one good eye left, he was employed at
the defendant‟s garage and one day was called on to dismantle a chassis of a large
vehicle and had to use a hammer to get a rusty bolt. A fragment of the rusty bolt came
of hit him in the eye and he was completely blinded. The risk was extremely small
and did not justify use of goggles. Court held the defendant liable for failing to
provide Goggles to the particular worker knowing that he might suffer such serious
consequences if the small risk materialised.
• Burden of taking precautions- the court will take into account cost and practicality
of taking precautions against a risk. If the burden is too great to eliminate the risk
than the benefit the normally it will not amount to negligence See Bolton Case. In
Latimer v AEC Ltd [1953] the floor of the defendant‟s factory was flooded and as a
result some oil leaked and mixed with the water, the water subsided but the floor
remained slippery and sawdust was used to prevent the floor being slippery but they
did not have enough. Later a worker who was on a particular patch that was still
slippery fell and broke his ankle and then sued. House of Lords held that they we not
83 | P a g e
negligent they had done everything possible to negate risks without having to close
the factory.
• Utility of the defendant's conduct - The great the social utility of the defendants
conduct the less likely that they will be held negligent in Darbon v Bath tramways
motor co ltd [1946] the relevant issue was whether in war time the driver of a left
handed drive ambulance had be negligent in turning into a road without giving a hand
signal The court held that the driver was not to be liable as in wartime it‟s necessary.
• Common practice – if something is common practice and an individual can show

that the action carried out was common practice then negligent behaviour is less
likely.
10.9 Standard of care
One needs to remember that when discussing or trying to establish breach of duty the word
duty in this context actually refers to the standard of care required. Most of the time this
standard is generalized however there are certain groups of individuals who require special
attention. This means there are special rules that apply to them as defendants when an issue
of negligence is raised. There are four categories and these are as follows (a) children, (b)
defendants acting in an emergency, (c) defendants engaged in sport and (d) last but not
least defendants claiming to have special or professional skill.
1. Children- The conduct of a child defendant will be judged in reference to the

standard of conduct that can be expected of a reasonable child of the defendant‟s own
age. There was no real case that helped determining this in English law for a while so
an Australian court case was often adopted. McHale v Watson [1966] A 12 year old
boy threw a rod which ricocheted off a post and hit a 9 year old girl the court refused
to apply the reasonable man test to cases involving children and applied a low
standard of care which was appropriate to the defendant‟s age. Applying that
standard, the child was not liable however remember that the test remains objective.
Kito J‟s reasoning was used, “it is no answer for a child, any more than it is for an
adult to say that the harm caused was due to his being abnormally slow witted quick
tempered absent minded or inexperienced”. The same approach was later adopted in
84 | P a g e
England in Mullin v Richards [1998] Here the defendant was a 15 year old girl and
so was the plaintiff, they were fencing in class with rulers and one broke and hit the
plaintiff in the eyes causing blindness. It was held that the test to apply was that of the
ordinary careful and reasonable 15 years old and whether the ordinary 15 year old
would have foreseen the risk involved.
2. A defendant acting in an emergency- Where the defendant is forced to act quickly

in a split second and in the heat of the moment the standard of care is relaxed to take
this into account. This was established in Jones v Boyce (1816) there were some
elements of contributory negligence in his case. Here a passenger on a bus had acted
reasonably when thinking that the coach was going to crash so he jumped out in order
to save himself and broke his leg. The jury found in his favour. The judge had
directed the jury that the man was not guilty of negligence just because he picked the
more perilous of two alternatives which he was confronted with in an emergency. In
Ng Chun Pui v Lee Chuen Tat [1988] the defendant was driving a coach on a dual
carriage way when another vehicle cut in front of him, to avoid a collision he hit the
brakes and coach swerved and skidded across the central reservation where it collided
with a bus travelling in the opposite direction injuring plaintiffs who were on the
opposite bus. The Privy Council held that the action of the driver had been reasonable
given the circumstances he was put in. See Marshall v Osmond [1983] where police
are chasing a suspected criminal this may count as an emergency. In this case the
suspect got injured during the car chase and the court held that you could not judge
the police in these circumstances as those where they would have had time to think
and access a situation. Compare this to Rigby v Chief Constable [1985] of
Northamptonshire were police were held liable for fire damage to the defendants
shop.
3. Participants in sport - In sports it is clear that one owes a duty not only to fellow
participant but also to the spectators. The courts have recognized that in sport as well
someone may act in the heat of the moment same as a person in an emergency. In
Wooldridge v Sumner [1963] the court laid down the test for standard of care. A
participant would only be liable if he or she acted in reckless disregard of the
spectator‟s safety however this was subject to criticism as it favoured the defendant.
The courts respond with and in Wilks v Cheltenham Cycle Club [1971] stating that
85 | P a g e
the standard of care would be adjusted to take account of the fact that a competitor
could reasonably be expected to go all out to win even if it meant exposing other to
risk. This does not mean foolish behaviour will be acceptable.
4. The professional standard of care- The test for this category of people is called the
Bolam Test. Derived from Bolam v Friern Hospital Management Committee
[1957] (electro-convulsive therapy case). It has two principles to it which are
 Where the defendant purports to have a special skill the defendant‟s
conduct is judged according to the standard of a reasonable person
having the same skill that the defendant poses not the reasonable man
 The law will not regard the defendant to have fallen below the required
standard of care if it is shown that the defendants conduct is regarded
as proper by one responsible body of professional opinion
This first element of the Bolam test is quit straight forward and law expects that
skilled person (defendant) to live up to the standard of an ordinary skilled person in
that profession.
 See Gates v McKenna [1998]

 See Philips v William Whitely ltd [1938]
 And Wells v Cooper [1958]
Relevance of common practice and professional opinion is the second part. This looks
at the second of the elements of the Bolam test which has proved to be controversial in that
the professional will escape liability if one view of a responsible common practice
corresponds with theirs. In Bolam neither relaxant nor restraining sheets were used by the
doctor during treatment and during the trial when evidence was being give there was
conflicting opinions, some doctors preferred to use these items whilst other preferred not to.
As a result, the doctor escaped liability on direction of the judge. The controversy that
followed this decision is that it allows professions to be self-regulating bodies effectively.
Meaning doctors are not truly answerable to their patients through the courts because they are
allowed to set their own standard of care. However there are limits to extent at which they
can put themselves above the law. See Bolitho v City and Hackney Health Authority
[1998]. The Bolam test makes it very difficult to claim negligence against a professional
person. However, this may be due to policy issues and fear of floodgates.
86 | P a g e
10.10 Causation
To establish causation a claimant must prove three things-
 The defendant owes the claimant a duty of care

 The defendant has acted in breach of that duty and
 As a result the claimant has suffered damage which is not too remote a consequence
of the defendant‟s breach.
So now we shall concentrate on the final point of the three established requirements. Once
the first two have been proved you naturally move onto the third one which is proving that
the defendant‟s breach caused the damage. This is established in two stages
1) Whether the defendant factually caused the damage (but for test)
2) Did the defendant legally cause the damage?
10.10.1 But for Test
Is also known as causation in fact the claimant is to prove that but for the negligence of the
defendant the harm would not have occurred. See Barnett v Chelsea and Kensington
Hospital [1969] where three night watchmen after drinking some tea got sick and started
vomiting, they went to the hospital and were told to go see their own doctors by the casualty
office , they went home and the deceased passed away , it later turned out that the tea had
arsenic poison in it. The deceased widow‟s contended that the hospital should have treated
her husband. The court held that the hospital was not liable.
Even though the doctor who had sent him away did not examine the deceased properly and
was held to be in breach of his duty care as a doctor in failing to examine the deceased there
was expert evidence indicated that having drunk the arsenic poison the man was beyond any
help and he would have died anyway in any event irrespective of whatever happened.
In applying „the but for test‟ the courts take not only the existing causes that might have
produced the claimant loss but also hypothetical causes. See McWilliams v Sir Arnold
Arrol Ltd where a man died and again they said it was inevitable that he would have died
anyway after a harness was not provided by the defendant. See Bolitho v Hackeny Health
Authority [1998]
87 | P a g e
Problems with „the but for test‟
The test will work just fine in most cases however it does have its limits. The most common
example being that of fire A and fire B both started negligently on different pieces of
neighbouring land, which are then capable of burning down the claimants house if that
happen the claimant sues A who (the defendant) would argue that it was inevitable due to fire
B and vice versa defendant B would argue the same. Applying the but for test none would be
liable because we can‟t determine which fire caused the damage. Let examine this a little
further.
 Concurrent cases- These are cases involving concurrent causes by which

means the causes occurs more or less simultaneously.
 An indeterminate cause- this is where there is more than one defendant but
only one operative cause of the claimant loss it being unclear which
defendants act produced this cause. In Cook v Lewis [1951] and Summers v
Tice (1948) both cases involved hunting accidents in which the plaintiff was
shot by one bullet fired by two defendants. Evidence could not established
who the bullet came from so both we held liable as joint tortfeasors. A similar
approached was adopted in Fairchild v Glenhaven Funeral Services ltd
[2003] where the claimant contracted a disease caused by asbestos fibres it
was impossible to tell where it occurred so all the employers were made
liable. However, it clear this will only apply in special circumstances where
considerations of justice and policy demand that the but for test be reduced
therefore you can‟t expect to work all the time.
Cumulative causes- Here there is more than one operative cause of the claimants loss each
produced by an act of a different defendant but the issue is that these causes have combined
to produce the same damage, i.e. two bullets in the same leg each fired by a different
defendant and as a result leg is amputated. The example about the fire is a very good
example of a cumulative cause. We have already concluded in such circumstances applying
the „but for test‟ would be impossible resulting in neither party being liable.
The court takes the approach that due to the negligent cause being capable of causing the
same damage each party would be liable for the whole damage and it is what happened in
The Koursk [1924] where two ships collided and both were simultaneously subject to
88 | P a g e
negligent navigation. See Fitzgerald v Lane [1987] where the defendant was crossing a
pedestrian crossing the light showed green for cars and red for pedestrians, he was hit by a
negligent driver and then hit by second car also driving negligently. He suffered severe
injuries to the spine and at trial evidence could not determine who was to blame all three
were held liable including the claimant. As you can see the „but for test‟ would not work
because it needs to identify who exactly is responsible so in such cases everyone is as one
cannot been more responsible than the other.
10.10.2 The second stage
Determining whether the defendant legally caused the damage is the second stage and this is
done by ensuring that there were no novus actus interveniens to break the chain. This is
where a second act makes the first act irrelevant and causes the chain of causation to be
broken and extinguishes the first act. This is also treated by many as part of the test for
remoteness of damages.
Intervening act of the third party
There are ways this can happen-
 Natural (instinctive) intervention - Classic example of instinctive human conduct

failing to amount to a novus actus interveniens is found in Scott v Shepherd (1773)
the defendant threw a lighted firework into a market place. It landed on a stall belong
to a third party who the threw it on to another who reacted in the same way and threw
it to another before it exploded on the plaintiff. It was held neither the intervening
acts of the other party's had broken the chain of causation. It‟s clear from the case that
acts of the third party will not break the chain if they are involuntary and in the heat
of the moment.
 Negligent intervention – it‟s not easy to establish this one as it‟s almost impossible
to state with clarity in what circumstances this will apply. Where A commits a tort
and B commits a tort the question is whether b‟s tort makes a‟s irrelevant. The
negligent conduct will not always break the chain
 In Roberts v Bettany [2002] the defendant negligently started a fire underground and
was order by the council to extinguish the fire but he failed to comply with the order.
So, the council intervened. They were negligent and as a results subsidence occurred
89 | P a g e
to the plaintiff‟s house the court held that the council‟s negligence did not break the
chain. In Knightley v Johns [1982] again the courts found the negligent act by the
police officers did not break the chain. The court of appeal stated that the right
questions to ask was whether the whole sequence of events was a natural and
probable consequence of the defendant‟s negligence so that it should have reasonably
been foreseen that by the defendant.
 Intervention in the form of intentional wrongdoing- Where a third party‟s act take
the form of deliberate wrong doing the courts will be very reluctant to find the
defendant guilty and will usually say that the third party act broke the chain. However
much will depend on the circumstances in H.M Att-Gen v Hartwell [2004] an
emotionally disturbed office went to a pub and shot and injured a tourist. He had been
given access to a gun by the defendant. Held that the action did not break the chain
and the defendant was liable. See Dorset v Yatch Co Ltd where criminal
intervention did not break the chain. In the right scenario actions of a claimant may
break the chain of causation. This idea is known as the defence of volenti non fit
injuria where the claimant caused his or her own loss by accepting the risk. It
overlaps with the rules on contributory negligence. The courts general approach is
illustrated in Mckew v Holland and Hannes and Cubitts and Wieland v Cyril
Lord Carpets ltd. In Mckew the plaintiff suffered an injury to his leg as a result of
the defendant‟s negligence Therefore the leg had a tendency to give way when he was
walking. Shortly afterwards he went with his family to look at a flat and when going
up the stairs his leg gave way he fell breaking his ankle the house of lords held that
his unreasonable behaviour amounted to a novus actus interveniens. A claimant‟s act
will only break the chain of causation if the act is unreasonable.
 In Wieland, the court reached a different conclusion, the facts were similar to Mckew
the claimant suffered a neck injury and was put in a neck brace; she wore bifocals and
was unable to see properly. She went to her son‟s office for assistance and fell
injuring her ankles it was held that the defendants were liable as they impaired her
ability to see properly.
10.10.3 Defences
These are just some of the defences available to negligence. See the unit on defences for
further details.
90 | P a g e
 Contributory NEGLIGENCE
 Consent
 Ex turpi causa non oritur actio
10.11 ACTIVITIES
 Make sure you read all the cases that are mentioned in full
 Your weekly tutorial questions will be available on the portal as usual later in the
week
10.12 SUMMARY
Negligence can be defined as a breach of legal duty to take care which results
in damage to the claimant- Winfield and Jolowicz. It not usually concerned
with harm inflicted intentionally rather its harm that is caused accidentally or
through lack of care. However, note that it involves much more than just proving it was a
careless act or behaviour. The next unit to consider is professional negligence.
91 | P a g e
11 UNIT 11: Professional Negligence
11.1 INTRODUCTION
Professional negligence is a breach of the duty of care between professionals and

their clients. The duty of care is a common law arrangement where the client
expects a level of professionalism and standards commonly held by those in the
profession. The most common term for medical professional negligence is medical
malpractice. For this instance, the patient expects the doctor and his subordinates to adhere
to standards that would prevent undue harm and distress to patients under his or her
care. Negligence on the part of the doctor while performing his duties as a professional is
malpractice, which breaches the duty of care that the patient has put in the doctor and will
involve legal penalties.
11.2 AIM
 appreciate negligence in terms of professionals
11.3 OBJECTIVES
 Define what professional negligence
 Address questions on professional negligence
 Differentiate it from negligence
92 | P a g e
11.4 TIME REQUIRED
2.5 REFLECTION
11.6 What is it?
Professional negligence exists when a professional (for example: surveyors, accountants,

lawyers, valuers, professional trustees) within his specific area fails to meet the required
standard of responsibility (i.e. has been negligent) and, as a result of his actions, has caused
another party to suffer loss enabling a claim to be brought against him. Such actions include:
breach of duty of care in tort; breach of a contractual term; breach of a fiduciary duty; or
breach of a statutory duty. Damages for such claims seek either to put the claimant in the
position he would have been in if the contract had been properly performed (contractual
negligence claims) or to put the claimant in the position he was in prior to the tort taking
place (negligence claims in tort). Generally, only under contractual negligence claims can the
claimant seek to recover future economic loss.
The claim is usually brought by the professional's client, although there are occasions where
it is possible for third parties to also take action. For most professions, professional
indemnity insurers will be involved, even before solicitors are instructed, and the
professional's role in the matter may become secondary as the insurers take an active role in
managing the claim.
When bringing or defending a claim there are certain steps that need to be followed under the
Professional Negligence Pre-Action Protocol, these are explored in more detail below.
93 | P a g e
11.6.1 The basic requirements
A negligence claim requires evidence to show that the professional breached his duty to the
claimant, that the claimant relied on the actions (in most instances, the advice) of the
professional, and that the breach caused the claimant loss. Should there be any break in the
chain, this may enable the professional to raise a defence. In contract the standard of care
may be expressed in the contract itself or by statute (i.e. the requirement for reasonable care
and skill under section 13 Supply of Goods and Services Act 1982). Whilst the standard of
care owed in tort is broadly that the error made by the professional is one that no reasonable
member of his profession, in the same circumstances, would have made. It is important to
remember that the professional may owe duties both in contract and in tort.
11.6.2 Professional negligence under tort
A tortious duty can arise regardless of whether there is also a duty in contract and it is for the
claimant to elect which action is most favourable to him when considering the available
damages and what, if any, hurdles may exist. As explained above the standard of care against
which the professional will be judged is that of the reasonable member of his profession. It is
an objective test and an error alone will not constitute negligence, only if it fails the threshold
test.
11.6.3 How to bring a professional negligence claim
The starting point is to identify the type(s) of negligence that has arisen (i.e. contractual, in
tort, statutory, or fiduciary?) and to ensure that the requirements for duty, breach, causation
and loss can be established. Next, consideration should be given to the value of the claim – is
it financially worth pursuing? Thirdly, it is always prudent to put yourself in the
professional's shoes to see what defences may be raised, whether there are any issues with
the claim (for example, is there a limitation defence? Should a standstill agreement be
entered into? Is the loss claimed too remote? Did the claimant contribute to his own loss?
Should he have taken steps to mitigate the loss? Is there any contractual provision to limit
liability?), and whether there is likely to be a counterclaim?
Once these hurdles have been cleared, the steps set out under the Professional Negligence
Pre-Action Protocol should be followed and the client should be advised of its obligations for
disclosure and the importance of preserving documents.
94 | P a g e
Who can bring a professional negligence claim and against whom?
 Caparo Industries Plc v Dickman, [1990] 2 A.C. 605, [1990] 1 All ER 568
 Carr-Glyn v Frearsons, [1999] Ch 326, [1998] 4 All ER 225
Professional negligence-founding the duty in contract, tort and equity
 Bristol and West Building Society v Mothew, [1998] Ch 1,[1996] 4 All ER 698
 Platform Funding Ltd v Bank of Scotland plc, [2008] EWCA Ci
Standard of care in professional negligence claims
 Adams v Rhymney Valley District Council [2000] All ER (D) 1015

 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118
 Bolitho v City and Hackney Health Authority, [1998] AC 232, [1997] 4 All ER
771
Causation and remoteness in professional negligence claims
 Allied Maples v Simmons & Simmons [1995] 4 All ER 907

 Beary v Pall Mall Investments (a firm), [2005] EWCA Civ 415, [2005] All ER (D)
234 (Apr)
11.7 What is a “duty of care”?
Duty of care is a broad legal definition that protects individuals from others that engage in
activities that could potentially harm others if proper precautions are not taken. This ranges
from operating a moving vehicle to performing surgery. This also covers situations where
individuals may suffer economic or emotional damage due to poor advice or conduct. A
manufacturer has a duty of care to the consumer as the consumer will assume that product he
or she is buying is safe and adheres to standards set by the government and common
practices. The standard for this was set in the case of Donoghue v Stevenson where a ginger
beer manufacturer allowed a snail into Stevenson‟s bottle. British courts ruled that
Stevenson was owed a duty of care by Donoghue to ensure the safety of his manufacturing
process to his customers.
95 | P a g e
11.8 ACTIVITIES
 Make sure you read all the cases that are mentioned in full
11.9 SUMMARY
A common phrase often associated with negligence claims is “bad advice”.

However, the ambit of professional negligence is wider than this and occurs
when a professional (which covers a number of professions) fails to perform his
responsibilities to the required standard. For example; a solicitor may miss an important time
limit or fail to advise you properly on a settlement offer. Professional negligence claims have
become more common in recent years. This is due to a combination of factors including an
increasing reliance upon professional advice, the complexity of work carried out, and a raised
awareness of legal rights. In addition, in times of economic downturn, losses suffered are
often more apparent.
96 | P a g e
12 UNIT.12 General Defences and Remedies
12.1 INTRODUCTION
This will be the last unit that we shall look at. We shall examine the general
defences available today as well as the remedies. You will remember that a number
of torts have their own defences that we have already examined. From here on we shall
examine the defences that are available across the board and can be used as a defence in any
tort.
12.2 AIM
 to examine the defences that are available and where they apply
 See what remedies are available
12.3 OBJECTIVES
At the end of this unit you should be able to do the following-
 Will appreciate the use of general defences as opposed to tort specific

defences
 Understand the different types of compensation that exist
 Appreciate where they will apply
12.4 TIME REQUIRED
97 | P a g e
12.5 REFLECTION
12.6 DEFENCES;
There are 5 general defences that we will take into consideration these are:
 CONSENT
 PUBLIC POLICY AND ILLEGALITY
 CONTRIBUTORY NEGLIGENCE
 INEVITABLE ACCIDENT
 MISTAKE
Take note that however, this is not an exhaustive list but it represents the most common
defences that are out there. Let us examine each one individually now.
12.6.2 Consent (volenti non fit injuria)
The operation on a patient by a doctor is usually a scenario where consent would have been
given as there is no way they can operate without it and the doctor would be committing
trespass to person. In negligence this is referred to as volenti no fit injuria or voluntary
assumption of risk and in property it‟s known as leave or license therefore we can divide
consent into three
• General Consent
• Voluntary assumption of risk and
98 | P a g e
• Leave or licence
With Consent – the defendant will not be liable for trespass to person where the claimant
has consented to such actions. That consent maybe express or implied. In Freeman v Home
Office (No2) [1984] it was noted that the burden is on the claimant to show the absence of
consent although it‟s a defence raised by the defendant the claimant has to show that the
trespass occurred without their consent.
With Voluntary assumption of risk- this is consent in negligence and it takes the form of
an agreement to run the risk of the defendant‟s negligence. In other words you know the risk
and you agree to take it irrespective of the consequences.
Three requirements for the defence are that there is-
 Agreement to the risk

 Full knowledge of the nature and extent of the risk and
 Voluntary choice by the claimant
1) Agreement to the risk- agreement is difficult to access due to mixed authority.

Nettleship v Weston [1971] states nothing will suffice short of an agreement to waive
any claim of negligence. In ICI v Shatwell [1956] two brothers were testing detonators
at a defendant‟s quarry they ignored safety recommendations and one of them got injured
as a result and then decided to sue under vicarious Liability the court refused and said he
had assumed the risk. Agreement should therefore be interpreted loosely as meaning the
claimant has clearly consented to the risk.
2) Full knowledge and acceptance of the nature and extent of the risk is the key issue and
the second requirement this has to be given with full understanding and acceptance of the
nature of risks involved. See Dann v Hamilton [1939] and Owens v Brimmell [1977]
3) Voluntary choice by the defendant - Consent has to be voluntary or else the defence
won‟t apply even if the other two requirements are there or present.
12.6.3 Public policy and illegality

Also known as ex turpi causa non oritur action which means that the action cannot be
founded on a base cause it is essentially founded on policy. Law of tort is not
prepared to reward criminals or a tort arising out of criminal action or immoral
99 | P a g e
conduct see the Pitts v Hunt [1191] motor bike case where the claim refused on base
of illegality.
12.6.4 Contributory NEGLIGENCE

It‟s convenient to refer to it as a defence although it does not operate as a complete
defence to a claimant‟s action as will be seen. Generally it is raised in the tort of
negligence although it does apply more widely i.e. breach of statutory duty. It allows
a defendant to argue that damages awarded in favour of the claimant should be
reduced due to damage caused by the fault of claimant
See Law Reform (Miscellaneous Provisions) Chapter 74 part IV (Mvunga and
Ng‟ambi pg. 145 S.10 ss (1) „where a person suffers damage as a the result partly of
his own fault and partly the fault of any another person, a claim in respect of that
damage shall not be defeated by reason of fault of the person suffering the damage,
but damage recoverable in respect thereof shall be reduced …‟. See Reeves v
Metropolitan Police Commissioner where they held that the deliberate suicide
amounted to contributory NEGLIGENCE within the confines of the Law Reform
(contributory NEGLIGENCE) Act 1945 (UK) s1 (1) where a person suffers
damage as a the result partly of his own fault and partly the fault of any another
person, a claim in respect of that damage shall not be defeated by reason of fault of
the person suffering the damage, but damage recoverable in respect thereof shall be
reduced…‟. As you can see the two acts state exactly the same thing and either one
can be used.
Three questions should be asked though the main aim of the act is to show that the
claimant failed to exercise all reasonable care and added to their injuries. Therefore it
is a question of fact and the three main questions are -
 Was the claimant acting negligently?
 Did his/her own actions contribute to the damage suffered?
 To what extent should his or her damages be reduced?
Damages will therefore be reduced as the court sees fit.
See the following cases
 Jones v Livox Quarries Ltd [1952] a person is guilty of contributory
negligence if fails to act reasonably the way a prudent man would
 Jones v Boyce (1816) man jumped out of moving bus
 Froom v Butcher [1976] seatbelt case where they assessed that courts could-
100 | P a g e
 Reduce damage by 25% if the injury would have been prevented
altogether
 Reduce damage by 15% if the injury would have been less severe
 0% if wearing seatbelt would not prevented the injury
 Stapley v Gypsum Mines ltd [1953]
12.6.5 Inevitable ACCIDENT

A defence that basically states that despite all reasonable care taken there was no way
to avoid the accident. People must guard against reasonable probability but they are
not bound to guard against fantastic possibilities however do note that this has been
criticised as an over simplification of the defence.
12.6.6 Mistake
The fact that one has made a genuine mistake is not generally a defence this is due to
the fact that it‟s difficult for this to be a successful defence.
12.7 REMEDIES
Just as there are defences there are remedies that are available. These include damages and
injunctions. Damages are the most commonly sought after remedy. There are seven different
head of damages-
• Compensatory
• Contemptuous
• Nominal
• Aggravated
• Exemplary or punitive
• Restitutionary and
• Damages under the Human Rights Act 1998
Compensatory- seeks to fully compensate the victims, the claimant's principle being
expressed by the term restitutio in intergrum as explained by lord Blackburn in Livingstone
v Raywards Coal Co (1880). The aim is to put the claimant back in the position they would
have been in had the tort not occurred. Damages will be as a lump sum when awarded. Also
101 | P a g e
there is a duty on the claimant to mitigate loss as the courts won‟t allow claim for losses that
could be reasonably avoided.
Contemptuous - this is a derisory award of the lowest coin in the land not one penny by
which court indicates that although the claimant has good cause of action it is a bare
technical victory. The victory is illusionary, i.e. nothing is given moneywise.
Nominal- a token amount which recognises that the claimant's legal right has been infringed
but no actual damage was caused. It applies to actionable per se torts.
Aggravated- a further level of compensatory damages granted for issues such as mental
distress inflicted due to malicious high-handed insulting or oppressive conduct by the
defendant. See Thomas v Metropolitan Police Commissioner [1998] which indicated a
level of awards suitable for damages against the police for false imprisonment and malicious
prosecution.
Exemplary or punitive- the leading case is Rookes v Barnard [1964] the case set out when
punitive damages can be awarded as a form of damages to punish the defendant and deter
others there are three instances where they can be awarded-
• Oppressive, arbitrary or unconstitutional actions by the government servants
• Conduct calculated by the defendant to make a profit which may well exceed any
compensation payable to the claimant
• When expressly authorized by statue
Restitutionary- here damages are assed not on the loss caused to the claimant but on the
gain obtained by the defendant and the claimant‟s expenses. Not all torts allow Restitutionary
damages but that is for law of restitution to clear up.
Damages under the Human Rights Act- section 8(1) of the act sets out the judicial
remedies which arise when a public authority has acted in a way which is incompatible with
convention rights.
• Find and read section mentioned above.
12.8 ACTIVITIES
102 | P a g e
Make sure you read all the cases that are mentioned in full
12.9 SUMMARY
Defences and remedies will always form part of tort and they are an important
cog in the machine that is civil law they not only benefit the claimant but they
also protect the defendant when they need be.
103 | P a g e
Unit 13: TRESPASS TO GOODS (Supplementary Topic)
13.1 Trespass to Goods/chattels
A trespass to goods/chattels is one who takes the goods or chattels of another and
uses them without the owner‟s consent. This is tantamount to the offence of theft in criminal
law. The tort is committed by way of any wrongful interference with the goods in another‟s
possession. It is actionable per se.
Possession is the essence of the right; even wrongful possession is sufficient against anyone
but a person with a better title.
In WILSON v LOMBANK LIMITED [1963], A purchased a car from B, who had no title
to it. C, who was not the owner but believed himself to be, removed it. It was held that C was
liable to A in trespass.
13.2 AIM
 to examine trespass to goods

 See what remedies are available
13.3 OBJECTIVES
At the end of this unit you should be able to do the following-
 Briefly examine trespass to goods-conversion
13.4 TIME REQUIRED
104 | P a g e
13.5 REFLECTION
13.6 Conversion
A person entitled to possession of goods can maintain an action for conversion against
anyone doing any act which involves a denial of his right to that possession. The same act is
often, but not always both a trespass and a conversion.
The case of Foulds v Willoughby is the leading authority. The Defendant refused to take the
Plaintiff‟s horses on his ferry, and put them on shore. This was held to be trespass but not
conversion
Acts of Conversion
The following are the acts of conversion:
1. Stealing the Plaintiff‟s goods;
2. Selling them;
3. Receiving them as a purchaser;
4. Destroying them or otherwise denying the Plaintiff‟s right to them. In the case of
Oakley v Lyster (1931), the Plaintiff leased land and dumped material there. The Defendant
acquired freehold and wrongfully claimed the material was his. He used some of the material
himself and his solicitors warned the Plaintiff not to enter on the land. The Defendant was
held liable for conversion.
Detinue
This tort consists in the wrongful retention of the possession of a chattel. Over keeping of a
hired chattel is an example but for the tort to be committed, there must be a demand by the
plaintiff and / a refusal to surrender the chattel by the dependant
105 | P a g e
Who can Sue and can be sued?
Under trespass, the person who can sue is the person in possession and can thus maintain an
action in trespass. Therefore, an owner who is out of possession cannot sue, but if he
subsequently recovers possession, it relates back to the time the right of entry accrued, and he
can sue for trespasses committed in the interval. Further a landlord can sue in trespass only if
he can prove more than a mere trespass – viz actual harm done to the property, of such sort as
to affect the value of his reversionary interest in it.
Again, a person with defacto possession can maintain trespass against anyone except the
person with the right of entry or present possession. In Hemmings v Stoke Poges Golf Club
(1920) the Plaintiff was employed by the club and occupied a cottage belonging to it. Later,
he left the Defendants‟ service and was called upon to give possession. On refusal, he and his
property were ejected with no more force than necessary. It was held that the Defendants
were not liable for assault or trespass.
A person wrongfully retaining possession cannot be sued as a trespasser, but the person
entitled to possession may bring an action of ejectment and claim mesne profits, i.e., in
effect, the loss sustained by being kept out of possession.
Co-tenants or joint tenants cannot sue each other in trespass on the land they occupy because
both of them are entitled to possession of the land as a whole. An action by a co-tenant or
joint tenant is only possible if the defendant‟s act is intended to completely oust the plaintiff
from the land or destroying or wasting of the common property.
Defences: Consent; Lawful Authority; Necessity
The following are the defences that the Defendant may plead:
1. Authority of the law, e.g., a policeman preventing a breach of peace; a landlord

detraining for rent; a bailiff executing process. In Thomas v Sawkins [1935], a Police
Constable insisted on being present as a private meeting where they had reasonable grounds
for thinking a breach of the peace might otherwise be committed. It was held that no trespass
was committed;
2. Abatement of a nuisance;
3. Retaking of goods;
106 | P a g e
4. Necessity. In Esso Petroleum CO. LTD v Southport Corporation (1956), the
captain of an oil tanker lay the ship aground and in order to save the ship and crew, large
quantities of oil were discharged. The oil was carried by a tide onto the shore. The court held
that necessity was a defence to the claim in trespass and in nuisance.
5. License, which is „that consent which, without passing any interest in the property to
which it relates, merely prevents the acts for which consent is given from being wrongful.
After revocation of a license the licensee becomes a trespasser, but he be allowed a
reasonable time to leave and remove his goods. A license coupled with an interest is
irrevocable.
Remedies
1. Eject the trespasser, using no more force than necessary;
2. Re-enter his land. But he must do so peacefully, otherwise he commits a crime;
3. Obtain an injunction to restrain a continuing, or to forbid a threatened, trespass;
4. Sue for damages and mesne profits
5. Bring an action of ejectment or recovery of the land;
12.8 ACTIVITIES
Make sure you read all the cases that are mentioned in full
12.9 SUMMARY
107 | P a g e
108 | P a g e

L131 Tort Module Guide

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

L131 Tort Module Guide

Uploaded by

Copyright:

Available Formats

The University of Zambia

BACHELOR OF COMMERCIAL LAW

Author: Chaponga Nguluwe

ALL RIGHTS RESERVED

No part of this publication may be reproduced, stored in a retrieval system, or

ALL RIGHTS RESERVED ....................................................................................................... i

4.0 UNIT FOUR: Trespass to Person Part

5.0 UNIT FIVE: Trespass to Person Part

6.0 UNIT SIX: Trespass to Person Part

7.0 UNIT SEVEN:

9.0 UNIT NINE:

10.0 UNIT TEN:

11.0 UNIT ELEVEN: Professional

12.0 UNIT TWELEVE: General Defences and Remedies

1.1 MODULE AIM

By the end of the course, students should be able to:

a) demonstrate knowledge of concepts in the law of Torts

1.3 ASSESSMENT DETAILS

 Continuous assessment 30%

 Mvunga, M. P and Ng‟ambi, S. P., (2011), Torts, Lusaka:

1.5 TIME FRAME

 Each component will require a minimum of 20 hours‟ study time

1.6 STUDY SKILLS

1.7 NEED HELP?

Zambia Centre for Accountancy Studies (ZCAS)

Dedan Kimathi Road, P O Box 35243, Lusaka, Zambia

Tel: +260 1 232093/5, Fax: +260 1 222542

Intentional Carelessness Strict imposition

Assault, Battery , Trespass to Negligence Strict liability

 To introduce you the student to the foundation of tortious liability, the

• demonstrate knowledge of concepts in the law of Torts

• explain the characteristics of tortious liability

• discuss the basic principles of negligence

• Demonstrate an understanding of remoteness of damage and contributory

2.4 TIME REQUIRED

You spend at least 6-8 hours on this unit

Negligence Characteristics differ i.e.

Damage- REQUIRED where others such as

Negligence requires proof of damage

Libel and Slander

Nuisance Damage- NOT REQUIRED AS TORT such

2.6.1 Differences with criminal and contract law

Crime is a public/community wrong, giving rise to sanctions in a specified code created by a

 The principle objective in crime is punishment/ in torts it is compensation.

 Differences in Procedure and requirements – i.e. Standard of Proof required

 Criminal - Beyond a reasonable doubt

• Actions arise from wrongs imposed by law

• Certain crimes are also torts e.g. trespass & assault

 Under a contract there is an agreement between two parties so a claim is brought as a

 Therefore, consent is the major difference between the two

 In tort compensation will be negotiated or guided by court order where as in contract

2.7 FOUNDATIONS OF TORTIOUS LIABILITY

 Retributive justice (punishment)

We shall examine each one individually.

Lord Blackburn in Livingston v Rawyards Coal Co (1880) 5 App. Cas 25

 See Sedleigh-Denfield v O'Callaghan [1940] expanding the tort of nuisance on the

2.7.3 RETRIBUTIVE JUSTICE

N.B Zambia does not use a jury system

Although in negligence this concept has limited application. If A injures B by simple

2.8 VICARIOUS LIABILITY

I. The employee committed a tort

 Trespass to the person

 Examine some of their characteristics and what makes them unique