The University of Zambia Institute of Distance Learning

THE UNIVERSITY OF ZAMBIA
INSTITUTE OF DISTANCE LEARNING
BACHELOR OF LAWS
MODULE
LPR 2930: LAW OF TORTS
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Email: director-ide@unza.zm
Website: www.unza.zm
Contents
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Unit One................................................................................................................................................. 13
The nature of the law of torts........................................................................................................ 13
1. Introduction...........................................................................................................................13
2. Objectives.............................................................................................................................. 13
3. Definition of ‘tort’................................................................................................................ 13
4. Purpose of the law of torts.............................................................................................. 14
5. Scope of interests protected in the law of torts.......................................................14
6. Tort distinguished from crime and contract............................................................... 14
7. Basic principles of tortious liability............................................................................... 14
8. The basis of tortious liability (Donoghue v. Stevenson).......................................15
9. Essential elements of Tort:.................................................................................................... 16
10. Examples of Torts:.................................................................................................................. 16
11. Exercise.................................................................................................................................. 17
12. Conclusion..............................................................................................................................17
Unit Two................................................................................................................................................. 19
Trespass to the person...................................................................................................................... 19
1. Introduction...........................................................................................................................19
2. Objectives.............................................................................................................................. 19
3. Battery.................................................................................................................................... 20
4. Assault.....................................................................................................................................20
5. False Imprisonment............................................................................................................ 21
6. Exercise......................................................................................................................................... 23
7. Conclusion.................................................................................................................................... 24
Unit Three.............................................................................................................................................. 24
Malicious Prosecution and abuse of process............................................................................. 24

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1. Introduction...........................................................................................................................24
2. Objectives.............................................................................................................................. 25
3. Elements of Malicious Prosecution................................................................................ 25
4. Elements of Abuse of Process.........................................................................................29
6. Exercise.................................................................................................................................. 31
7. Conclusion..............................................................................................................................31
Unit Four................................................................................................................................................ 32
Trespass to Land................................................................................................................................. 32
1. Introduction...........................................................................................................................32
2. Objectives.............................................................................................................................. 32
3. Meaning of ‘trespass to land’.......................................................................................... 33
4. Conclusion..............................................................................................................................34
Unit Five................................................................................................................................................. 34
Negligence............................................................................................................................................. 34
1. Introduction...........................................................................................................................34
2. Objectives.............................................................................................................................. 35
3. Elements of negligence:................................................................................................... 35
3.1 Duty of care...........................................................................................................................35

3.2 Breach of duty of care/standard of care..................................................................... 37
3.3 Consequential loss/injury/damage........................................................................... 38
4. Exercise.................................................................................................................................. 41
5. Conclusion..............................................................................................................................41
Unit Seven............................................................................................................................................. 42
Protection of Reputation (Defamation)....................................................................................... 42
1. Introduction...........................................................................................................................42
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2. Objectives.............................................................................................................................. 42
3. What is Defamation?.......................................................................................................... 42
4. Elements of Defamation................................................................................................... 43
5. Defences to defamation.................................................................................................... 45
5.1 Justification/truth................................................................................................................ 45
5.2 Fair comment........................................................................................................................ 45
5.3 Qualified privilege............................................................................................................... 45
6. Conclusion..............................................................................................................................45
Unit Eight............................................................................................................................................... 46
Nuisance (Public and private).........................................................................................................46
1. Introduction...........................................................................................................................46
2. Objectives.............................................................................................................................. 46
3. Public Nuisance.................................................................................................................... 47
4. Private Nuisance.................................................................................................................. 47
5. Factors to consider in Nuisance..................................................................................... 48
5.1 Was there interference?................................................................................................ 48

5.2 Who can sue?................................................................................................................... 54
5.3 Who can claim?................................................................................................................ 54
6. Exercise.................................................................................................................................. 55
7. Conclusion..............................................................................................................................56
Unit Nine................................................................................................................................................ 57
Occupiers Liability............................................................................................................................... 57
1. Introduction...........................................................................................................................57
2. Objectives.............................................................................................................................. 57
3. Rationale for occupier’s liability:....................................................................................57
4. Exercise.................................................................................................................................. 57
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5. Conclusion..............................................................................................................................57
1. Introduction...........................................................................................................................58
2. Objectives.............................................................................................................................. 58
3. What is ‘vicarious liability’?............................................................................................. 58
4. Is the person committing the tort the defendant’s employee/independent

contractor/agent?........................................................................................................................... 58
5. Exercise.................................................................................................................................. 58
6. Conclusion..............................................................................................................................58
Unit Eleven............................................................................................................................................ 59
Strict liability (The Rule in Ryland’s v Fletcher)....................................................................... 59
1. Introduction...........................................................................................................................59
2. Objectives.............................................................................................................................. 59
3. Elements of strict liability................................................................................................. 60
4. Exercise.................................................................................................................................. 64
3. Conclusion..............................................................................................................................64
Unit Twelve................................................................................................ Error! Bookmark not defined.
Economic Torts......................................................................................... Error! Bookmark not defined.
1. Introduction...............................................................................Error! Bookmark not defined.
2. Objectives.................................................................................. Error! Bookmark not defined.
3. Exercise.......................................................................................Error! Bookmark not defined.
4. Conclusion..................................................................................Error! Bookmark not defined.
Unit Thirteen......................................................................................................................................... 65
Defences................................................................................................................................................ 65
1. Introduction...........................................................................................................................65
2. Objectives.............................................................................................................................. 65
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3. Defences to False Imprisonment................................................................................... 65
4. Defences in Ryland’s v. Fletcher cases (Blackburn J)............................................ 65
4.1 Claimant’s consent.............................................................................................................. 65

4.2 Unforeseeable act of a stranger.....................................................................................65
4.3 Escape caused by a force of nature so unexpected that it couldn’t have
been reasonably foreseen........................................................................................................ 65
4.4 Claimant’s willful or reckless behaviour increased the probability of injury-
no liability OR reduction for contributory negligence.................................................... 65
5. Defences to nuisance claims........................................................................................... 65
5.1 Prescription (Acquiescence)............................................................................................ 66

5.2 Act of God.............................................................................................................................. 66
5.3 Necessity................................................................................................................................ 66
5.4 Statutory authority............................................................................................................. 66
6. Defences in negligence..................................................................................................... 66
6.1 Contributory negligence....................................................................................................66

6.2 Consent as a general defence to tortious liability (Volenti non fit injuria).....66
6.3 Defence of ‘Self-defence’ in relation to trespass to the person.........................68
6.4 Actions in defence of property....................................................................................... 69
6.5 Defence of necessity.......................................................................................................... 69
7. Exercise.................................................................................................................................. 69
8. Conclusion..............................................................................................................................69
Unit Fourteen........................................................................................................................................ 70
Remedies............................................................................................................................................... 70
1. Introduction...........................................................................................................................70
2. Objectives.............................................................................................................................. 70
3. General Remedies............................................................................................................... 70
3.1 Damages................................................................................................................................ 70
3.2 Injunctions............................................................................................................................. 70
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4. Remedies to nuisance claims:........................................................................................ 70
4.1 Injunction to prevent future damages........................................................................ 70

4.2 Damages to compensate for past damage................................................................ 70
4.3 Abatement............................................................................................................................. 70
5. Remedies for defamation:................................................................................................70
5.1 Injunction............................................................................................................................... 70
5.2 Damages................................................................................................................................ 70
6. Remedies for trespass to the person........................................................................... 70
7. Exercise.................................................................................................................................. 71
8. Conclusion..............................................................................................................................71
Acknowledgement
The University of Zambia (UNZA), Institute of Distance Education (IDE),
wishes to thank Dr. Pamela Towela Sambo for writing this Module, LPR 2930:
Law of Torts.
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Module Structure
I. Introduction
II. The Aim of the Module
III. Module Objectives [Learning outcomes]
IV. Assessment
V. Prescribed and Recommended Readings
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VI. Time frame
VII. Study skills [Learning tips]
VIII. Need help [Studying at a distance]
The module is divided into … units. Each unit addresses some of the learning
outcomes. You will be asked to complete various tasks so that you can
demonstrate your competence in achieving the learning outcomes.
Introduction
Welcome to this module, Law of Torts.
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The Law of Torts is a branch of the law that we interact with on a daily basis.
Suppose a motorist knocks you off your bicycle, or your neighbours keep
making intolerable noise, what would you do? Most inter-personal conflicts
and misunderstandings in present day society hinge on resolving claims
arising from the law of torts and as you study this module, you will learn
how some actions and omissions are treated at law.
Aim
The aim of this module is to develop your understanding of the law of torts
including its responsibility bases, the kinds of injury or harm for which it
permits a remedy and those for which it does not offer a remedy.
Objectives
At the completion of the module, you should be able to:
1. D e m o n s t r a t e familiarity with the basic

principles of the law of torts in the substantive areas
covered by the module;
2. D e m o n s t r a t e t h e a b i l i t y t o i d e n t i f y i s s u e s i n a
problem situation and apply law to produce
possible answers;
3. Exhibit understanding and critical reflection on the operation of the
contemporary law of torts within its social context from the
international and Zambian perspectives.
Assessment
Continuous Assessment 50%
2 assignments 15% each
1 test 20%
Final examination 50%
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Continuous Assessment
Prescribed Readings
Constitution, Cap 1 of the laws of Zambia
Occupier’s Liability Act, Cap 70 of the laws of Zambia
Public Health Act, Cap 295 of the laws of Zambia
Factories Act, Cap 441 of the laws of Zambia
Defamation Act, Cap 68 of the laws of Zambia
Misrepresentation Act, C69 of the laws of Zambia
Law Reform (Limitation of Actions) Act, Cap 72 of the laws of Zambia
Law Reform (Miscellaneous Provisions) Act, Cap 74
Recommended Readings
E.W. Rogers (1989), Winfield and Jolowicz on Tort, 13th edition, London,
Sweet and Maxwell
Mvunga and Ng’ambi on Torts, UNZA Press, Lusaka, 2010
C.A. Wright (1967), Cases on the Law of Torts, London, Butterworth’s
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Time Frame
You are expected to spend at least 60 hours of study time on this module. In
addition, there shall be arranged contacts with lecturers from the University
of Zambia from time to time during the course. You are requested to spend
your time judiciously so that you reap maximum benefit from the course.
Study Skills
You may not have studied by distance education before. Here are some
simple tips for you to follow which will help you do better in your learning
and keep you focused:
1. Set goals such as: I will succeed in this course. At the beginning of the
module, break the lessons into manageable chunks. You might not
have time to do a full lesson in one night, so plan how much you can
do, then stick to it until you are done.
2. Establish a regular study/learning schedule.
3. Determine what time is best for you to study.
4. Have a dedicated study place with all the supplies you might need.
5. Tell people what you are doing because only then are you more likely
to stick to a course.
6. Ask someone to proofread your work before you submit it.
7. Reward yourself with whatever work for you, along the way.
8. If you do not understand something ask your local learning centre or

your tutor, who will be able to help you.
9. Search for the meaning of principles and concepts instead of just

memorizing
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Need Help?
In case you have difficulties during the duration of the course, please get in
touch with the Director, Institute of Distance Education, or the Resident
Lecturer in your Province.
Unit One
The nature of the law of torts
1. Introduction
This Unit introduces you to the nature of liability that arises in the law of
torts (tortious liability). We start by trying to understand what a ‘tort’ is.
By now, you must have heard about the ‘law of torts’. What is a ‘tort’?
The term ‘tort’ is the French equivalent of the English word “wrong”. A
‘tort”, as used in legal terminology, means a breach of some duty giving
rise to civil cause of action and for which compensation can be claimed.
Various attempts have been made to find a comprehensive definition of
the term ‘tort’; however it is advisable to look at the meaning of a ‘tort’
from the perspective of different authors.
2. Objectives
By the end of this Unit, you should be able to:
(a) Define a ‘tort’;

(b) Explain the basis of tortious liability as distinguished from other
forms of liability;
(c) Describe and explain some of the most common torts in your
society.
3. Definition of ‘tort’
A workable definition of tort is as follows:
“Tort is a civil wrong, which is independent of a contract, and for which

the victim (person facing the loss or bearing the injury) can claim
compensation from the wrongdoer (person causing the loss).”
Winfield and Jolowicz state that:
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“Tortious liability arises from the breach of a duty primarily fixed by law;
this duty is towards persons generally and its breach can be redressed by
an action for unliquidated damages.”
4. Purpose of the law of torts
- Provide peaceful means for adjusting rights of parties who

may “take the law in their own hands”
- Deter wrongful actions in public
- Encourage socially responsible behavior
- Restore injured parties to their original positions, in so far as
the law can do this, by compensating for injury/loss/damage
5. Scope of interests protected in the law of torts

 Intentional invasion of personal and proprietary interests
 Economic interest
 Interests in intellectual property
 Interference with personal and proprietary interests arising
from negligence
6. Tort distinguished from crime and contract

- Civil wrong
- Law provides remedy (unliquidated damages)
7. Basic principles of tortious liability

 The fault principle - the place of intention motive and malice
 Damnum sine injuria and injuria sine damno
Liability in tort is essentially ‘fault-based’. This means that a

claimant must prove that the defendant acted intentionally or
negligently and was therefore blameworthy. The defendant’s
reasons or motive for committing a wrongful act are generally
not relevant to liability in tort. However, the presence of malice is
relevant to some torts. Malice is an essential ingredient of some
torts, for example conspiracy requires proof of an intention to
injure the claimant rather than to promote the defendant’s
legitimate interests. Malice may also make an otherwise
reasonable act unreasonable so as to establish liability, for
example, the tort of nuisance. Proof of malice can defeat certain
defences, for example, qualified privilege will not protect a
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defendant who acted maliciously. There are two situations where
tortious liability may be imposed despite the defendant not being
at fault;
(a) Torts of strict liability

(b) Vicarious liability
8. The basis of tortious liability (Donoghue v. Stevenson)

Readings:
1. Duty of care
2. Breach of duty of care
3. Damages as proximate result (loss and causation)
The law of torts is concerned with providing a remedy for certain forms of
wrongful conduct. In most torts, the claimant must prove that he has
suffered some damage, for example personal injury or damage to his
property, in order to establish liability. However, the fact that the claimant
has suffered damage is not enough on its own to establish liability. The
claimant must also prove that the damage was caused by the defendant’s
infringement of a right vested in the claimant which is recognized by the
law. For example, the construction of an out of town shopping complex
may result in loss of trade for town center shops. However, as the law
does not provide a right to protection from consumption, affected
shopkeepers will not have a remedy, no matter how severe their losses.
Although proof of damage is an essential component of most torts, some

rights are regarded as so important that the law will provide a remedy
even though the claimant has not suffered any damage. These torts are
said to be ‘actionable’ per se (actionable in itself) and the most important
examples are libel and trespass. Nominal damages can be recovered in
respect of these errors even though no loss has occurred.
Mvunga and Ng’ambi pages 1-4
Perera v. Vandiyar (1953) 1 All ER 1109
Hargreaves v. Bretherton (1958) 3 All ER 122
A person committing a tort or wrong is called a tort-feasor or wrongdoer,

and his wrongful acts or omissions are referred to as a tortious act.
People are expected to adhere to certain standards of reasonable
behaviour and to respect rights and interests of each other in order to co-
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exist peacefully. Every interest of a person cannot be protected; hence
the law determines what interests need protection. A protected interest
gives rise to a legal right which in turn gives rise to a corresponding legal
duty. Thus, Tort law acts as a means to protect these rights and interests
of the people in society. It provides a means to persons whose protected
interest (legal right) is violated to claim and recover compensation for the
loss suffered by them from persons who caused the loss. Some examples
of protected interests are: (a) a right to bodily safety; (b) a right to enjoy
one’s property without any interference; (c) a right to enjoy one’s
reputation without having anyone malign it publicly .
9. Essential elements of Tort:
(a) A person must have committed a wrongful act;
(b) This wrongful act must give rise to some damage (loss) being suffered
by the victim;
(c) The nature of the wrongful act is such that it gives rise to a legal remedy
in the form of a civil action for damages (compensation).
Damage – the loss or harm suffered by a person because of the wrongful

act.
Damages – the sum of money awarded by a court to compensate for the

loss suffered.
10. Examples of Torts:
(a) Defamation: law imposes a duty on one person not to injure the
reputation of another person;
(b) Negligence: law imposes a duty on a person to take reasonable care not
to injure another person or his property;
(c) Trespass to land – law imposes a duty on a person not to interfere with
another person’s property.
Thus if I make a malicious and false statement in public about X’s character
and in the process injure his reputation I would have committed a tortious
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act and X can sue me for defamation under Tort law and recover
compensation. Now in this example the constituents are clearly present:
(a) The wrongful act – ‘making malicious and false statements about X’s
character in public
b) Loss suffered by victim – ‘X’s reputation was harmed by my statements
c) Legal remedy seeking compensation – ‘ since X’s reputation was harmed ,

I infringed upon his legally protected right , and therefore X can go to court
and claim compensation from me for the loss I have caused him by injuring
his reputation.’
In a nutshell, some of the duties with which law of torts is concerned is the
duty to -abstain from willfully injuring another, to respect another’s property
and using reasonable care while dealing with others to avoid causing harm
to others.
11. Exercise
Take a couple of local newspapers and go through them, looking for stories
about people seeking compensation for a wrong that has been done to them.
Many of these stories will concern torts (you will not usually see that word
mentioned, but you may see the names of individual torts such as
negligence, defamation, trespass or nuisance. In each case, identify the
wrong that is alleged to have been done to the claimant, and then try to
work out what right the law might be trying to protect and whether it will fit
into what you have covered in this unit.
12. Conclusion
Tort law aims to compensate the person who has suffered wrongdoing, and
covers a wide range of different situations where one person (or
organization) has caused harm to another or infringed their legal rights.
There are many different torts, covering different ways of doing wrong
against someone else, and each one comprises a set of things that the
claimant must prove in order to win their case. Not every kind of wrong will
be a tort. The basis of tort law is that we all have interests which the law
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should protect, and only a wrong that infringes one of the interests that the
law protects will be a tort. Most torts have four elements:
 An act or omission by the defendant;

 Harm to the claimant, of a type that the law protects against;
 The harm must be caused by the act or omission;
 The defendant must be at fault.
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Unit Two
Trespass to the person
1. Introduction
In this unit we examine the tort of trespass to the person. It is one of the
direct or intentional torts. These involve direct or intentional interference
with the person of another, for example by striking or putting a person in
fear of being struck, or by unlawfully restricting another person’s freedom
of movement. These are some of the oldest kinds of wrongdoing in the
law of torts and are perhaps still some of the most common types of
torts. It is one area where there is considerable overlap with some of the
criminal wrongs (i.e. criminal offences) as well. Most people use "assault"
and "battery" interchangeably, as if these terms refer to the same thing.
Some criminal law statutes define assault to include battery. However, in
civil law (i.e. non-criminal law) there is a technical difference, which you
must learn in this unit.
2. Objectives
By the end of this unit, you should be able to:
1. Explain the general principles concerning the torts of battery and

assault;
2. Describe some of the factual situations in which a person will have the
right of action for battery or assault, or both;
3. Demonstrate your problem solving skills in the area of torts;
4. Analyse some of the leading cases in the area of battery and assault
and be able to apply them to other factual situations.
Readings:
Mvunga and Ng’ambi on Torts pages 9- 14
The ‘trespass torts’ that protect people’s persons, three of them: battery,
assault, and false imprisonment.
3. Battery
A will commit the tort of battery in relation to B if he touches her when he
has no lawful justification or excuse for doing so.
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Battery = intentional direct application of unlawful force to another
person
“Unlawful force” – F v West Berkshire Health Authority (1989) – general

exception embracing all physical conduct generally acceptable in everyday
life. This is not unlawful.
“Intentional” – D need NOT intend the CONSEQUENCES of his actions –

Wilson v Pringle (1986)
“Direct application” – the force must flow almost immediately and without
intervention from D’s actions (D may use some intermediate item provided
it’s controlled by D and application of force to C follows from its use without
intervention). For the tort of battery to be committed, a defendant must
have directly and voluntarily applied force to the claimant’s body. Stephen v.
Myers (1830) 172 ER 735
Dodwell v Burford (1670) where the defendant struck claimant’s horse with
the result that it bolted and the claimant was thrown from the horse; held
that the defendant was liable for battery.
Collins v Wilcock (1984) 3 All ER 374 that an application of force to another’s

person that is ‘generally acceptable in the conduct of daily life’33 will not
amount to a battery.
4. Assault
A will commit the tort of assault in relation to B if s/he makes her/him
thinks/ he is about to touch her/him when s/he has no lawful justification or
excuse for doing so.
Assault = intentional act by D causing C to reasonably apprehend

the immediate infliction of unlawful force
Can words be assault?

Yes –in R v Ireland.
Depends on all circumstances & the words must be considered in proper
context. Words can also negative an assault – Turberville v Savage (if cops
weren’t watching I’d hit you), as threat not immediate.
Immediate – R v Ireland – Lord Steyn said this would certainly cover

something which would happen within a minute or so. Thomas v National
Union of Mineworkers (South Wales Area) (1986).
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5. False Imprisonment
Readings: W.H.V Rogers, Winfield and Jolowicz on Tort pages 570-671
Both “false” and “imprisonment” are somewhat misleading terms. “False”

here refers to erroneous or wrongful. “Imprisonment” refers to the
restraint on a person’s liberty. For imprisonment to occur, a person’s
freedom of movement must be restricted, irrespective of whether they
know it or not. It does not require the claimant to be confined in a prison.
In false imprisonment: A tortfeasor unlawfully and intentionally acts to

cause confinement or restraint of the victim within a bounded area.
Accidental confinement is not included and must be addressed under
negligence or strict liability. The rationale (raison d’être) for false
imprisonment is to protect the liberty of the person, compensate for
psychological, physical and economic injury occasioned by the
imprisonment. (See Articles 13 and 22 of the Constitution Cap 1 of the
laws of Zambia).
A will commit the tort of false imprisonment in relation to B if he does

something to limit her freedom of movement to a confined space when he
has no lawful justification or excuse for doing so. For the tort of false
imprisonment to be committed, a defendant must have performed a
positive act that resulted in the claimant’s freedom of movement being
restricted to a defined area. Bird v Jones (1845) 7 QB 742
In Mbasogo v Logo Ltd (2006), the Court of Appeal said of the Thomas v
N U M case 75 that: ‘The threats made by pickets to those miners who
sought to go to work were not an assault because the pickets had no
capacity to put into effect their threats of violence whilst they were held
back from the vehicles which the working miners were within.’ This
suggests that if A threatens to shoot B if B does not do as he says, then
A’s threat will not amount to an assault if A did not have the capacity to
shoot B at the time he made his threat. This cannot be right. In Mbasogo
v Logo itself, the claimant – the head of state of Equatorial Guinea –
attempted to sue a group of people who, he alleged, had attempted to
overthrow him by paying for mercenaries to invade Equatorial Guinea and
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kill him. The main body of the mercenaries was arrested in Zimbabwe
before they could fly to Equatorial Guinea. The claimant alleged that he
was the victim of an assault when he received the news that the
mercenaries had been arrested because that made him think that he
might be about to be attacked, perhaps by a second group of mercenaries
already in the country. The claim was dismissed on the ground that the
claimant was not in fact in danger. Again, this cannot be right.
Iqbal v Prison Officers Association (2010)
R v Bournewood Community and Mental Health NHS Trust, ex parte L

(1999)
There is n o requirement that the claimant be aware that s/he has been
imprisoned for her/him to be able to sue for false imprisonment: Meering
v Grahame-White Aviation Company Ltd (1920)122 LT 44- the court held
that the tort of FI is committed even if the claimant did not know that he
was being detained. Lord Atkin: “It appears to me that a person could be
imprisoned without his knowing it. I think a person can be imprisoned
while he is asleep, while he is in a state of drunkenness, while he is
unconscious and while he is a lunatic”.
Robinson v Balmain New Ferry Company Ltd (1910) AC 295
Herd v. Weardale Steel. Coal and coke ltd (1915) AC 67
Davidson v Chief Constable of North Wales (1994) 2 ALL ER 597 - a store

detective reported to the police his suspicions that the claimant had been
stealing from the store; the police arrested the claimant, who turned out
to be completely innocent; held, the store detective was not guilty of
false imprisonment because he was not trying to persuade the police to
arrest the claimant when he contacted them – he was content to leave it
up to the police to decide what to do.
 Restraint must be complete- (means of escape): If a person has

reasonable means of escape, but does not know it, his
detention is nevertheless false imprisonment unless any
reasonable person would have realised that he had an available
outlet. There must be an intention to confine another person;
the tortfeasor must act in a manner that confines the other; i.e.
there must be actual confinement. The victim must be confined
or restrained by (1) physical barriers; (2) force or threat of
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immediate force against the victim, the victim’s family or others
in her immediate presence, or the victim’s property; (3)
omission where the defendant has a legal duty to act; or (4)
improper assertion of legal authority.
 Claimants knowledge of confinement: Grainger v. Hill (1838) 4

Bing N.C 212 held that imprisonment is possible even if the
claimant is too ill to move in the absence of any restraint. (See
t h e Meering case as well) and Murray v. Ministry of Defence
(1988) 2 ALL ER 521 is that personal liberty is supremely
important so that interference with it must be deterred even
where there is no consciousness (note award was only for
‘nominal damages’.
6. Exercise
1. Look at definitions of false imprisonment by different authors.
2. Mwansa has just won a game of pool at the UNZA Students’ Centre. As
he returns to his seat, he is cheered on by friends, while his opponent
Mutale slaps his shoulder in a hearty fashion to congratulate him on
his victory. Mwansa was off balance at the time and tumbled over,
injuring himself. Mwansa shouted at Mutale, “You loser, you did that on
purpose, just wait and see!”
Ba Mudala, the Bar Manager at the UNZA Students’ Centre, senses
danger and moves to restrain Mwansa by his collar and drags him to
his office. Mwansa resists violently, tries to punch Ba Mudala but
misses. Ba Mudala manages to calm Mwansa and persuades him to
remain in the office in order to avoid further trouble. Having left the
office, Ba Mudala asks two security guards to ensure that Mwansa
does not leave the ground floor room. Four hours later, Ba Mudala
called the police. In the meantime, Mwansa slept in drunken stupor
and was unaware that the two guards were there. Discuss all instances
of trespass to the person arising in these facts.
7. Conclusion
In this unit, you have noted that trespass to person is a general tort which
we face in our day to day life. People suffer a lot of difficulties because of
these acts but due to unawareness they do not file lawsuits of trespass to
person despite suffering interferences. Since the body of every person is
inviolate, no person has the right to interfere with the body of another
individual either directly or indirectly.
23
Unit Three
Malicious Prosecution and abuse of process
1. Introduction
In this unit, you will focus on two related torts- malicious prosecution and
abuse of process. On one hand, malicious prosecution is an intentional tort
designed to provide redress for losses flowing from an unjustified
prosecution. Malicious prosecution tort law seeks to protect against
unjustifiable and unreasonable litigation. It requires a showing that the
action was brought to harm the defendant or some other improper motive.
Malice is generally a wrongful intent, typically based in dislike of or animosity
toward a person. This may be shown by, among others, sloppy legal or
factual research, disparaging comments about the original defendant, a
great imbalance in power between the parties, or an apparent desire by the
original plaintiff to intimidate or punish the original defendant. Malicious
prosecution is the malicious institution of unsuccessful criminal or
bankruptcy or liquidation proceedings against another without reasonable or
probable cause. This tort balances competing principles, namely freedom
that every person should have in bringing criminals to justice and the need
for restraining false accusations against innocent persons. Malicious
prosecution is an abuse of the process of the court by wrongfully setting the
law in motion on a criminal charge. It is an effort to disturb the proper
functioning of the judicial machinery.
Abuse of process on the other hand, is a related tort which lies where a legal
process, not itself without foundation, is used for an improper, collateral
purpose. Abuse of process tort where damage is caused by using a legal
process for an ulterior collateral purpose. It must be noted that actions that
24
are obviously frivolous, vexatious, or in bad faith can be dismissed or stayed
by the court as an abuse of process. This unit will in part, discuss the
elements, the usual issues confronted and the practicalities of bringing or
defending an action for abuse of process. The related torts of malicious
prosecution and abuse of process both vindicate the important personal
rights to be free from unwarranted or abusive litigation tactics.
Rationale: to balance freedom of action and protection of innocent people

from false accusations
2. Objectives
By the end of this unit, you must be able to:
1. Explain and distinguish the torts of malicious prosecution and abuse of

process
2. Understand the circumstances under which a person can successfully
claim under the torts of malicious prosecution and abuse of process
3. Distinguish the torts of malicious prosecution and abuse of process
from other torts such as defamation and false imprisonment.
Readings:
Mvunga and Ng’ambi on torts pages 29- 30
3. Elements of Malicious Prosecution

In order to successfully claim for malicious prosecution, the following
must be proved:
1. Prosecution
Martin v. Watson (1996) AC 74
The Prosecution is not deemed to have commenced before a person is

summoned to answer a complaint. In the Indian case of Khagendra
Nath v. Jacob Chandra, there was mere lodging of court process
alleging that the plaintiff wrongfully took away the bullock cart
belonging to the defendant and requested that something should be
done. The plaintiff was neither arrested nor prosecuted. It was held
that merely bringing the matter before the executive authority did not
amount to prosecution and therefore the action for malicious
prosecution could not be maintained. There is no commencement of
the prosecution when a magistrate issues only a notice and not
25
summons to the accused on receiving a complaint of defamation and
subsequently dismissed it after hearing both the parties.
There must have been a prosecution initiated by the defendant. The

word ‘prosecution’ means a proceeding in a court of law charging a
person with a crime. To prosecute is to set the law in motion and the
person to be sued is the person who was ‘actively instrumental in
putting the law in force. There is a conflict on the question whether
there is prosecution of a person before process is issued calling upon
him to defend himself. One view is that a prosecution only begins
when process is issued and there can be no action when a magistrate
dismisses a complaint. The other view is that a prosecution
commenced as soon as a charge is made before the court and before
process was issued to the accused. The test is not whether the criminal
proceedings have reached a stage at which they may be described as a
prosecution, the test is whether such proceedings have reached a
stage at which damage or injury to the plaintiff results. A mere
presentation of complaint to a magistrate who dismissed it on the
ground that is disclosed no offence may not be sufficient ground for
presuming that damage was a necessary consequence. It will be for
the plaintiff to prove that damage actually resulted.
2. Favorable termination of the prosecution
Reynolds v. Kennedy (1794) 1 Wils. 232
The plaintiff must prove that the prosecution ended in his favour. He
has no right to sue before it is terminated and while it is pending. The
termination may be by an acquittal on the merits and a finding of his
innocence or by a dismissal of the complaint for technical defects or for
non-prosecution. If however his is convicted he has no right to sue and
will not be allowed to show that he was innocent and wrongly
convicted. His only remedy in that case is to appeal against the
conviction. If the appeal results in his favour then he can sue for
malicious prosecution. It is unnecessary for the plaintiff to prove his
innocence as a separate issue.
3. Lack of reasonable and probable cause
Glinski v. McIver (1962) AC 726
26
‘Reasonable and probable cause’ is an honest belief in the guilt of the
accused based on a full conviction founded upon reasonable grounds,
of the existence of a circumstances, which assuming them to be true,
would reasonably lead any ordinary prudent man and cautious man
placed in the position of the accuser to the conclusion that the person
charged was probably guilty of the crime imputed. As laid down in
Hicks v. Faulkner (1878) 8 QBD 167 (171) there must be:
1. An honest belief of the accuser in the guilt of the accused;

2. Such a belief must be based on an honest conviction of the
existence of circumstances which led the accuser;
3. Such belief as to the existence of the circumstances must be based
upon reasonable grounds that is such grounds, as would lead any
fairly cautious man in the defendant’s situation to so believe;
4. The circumstances so believed and relied on by the accuser must be
such as amount to a reasonable ground for belief in the guilt of the
accused. It is the responsibility of the plaintiff to show that there
was no reasonable and probable cause for the prosecution of the
case. If the defendant can be shown to have initiated the
prosecution without him holding an honest belief in the truth of the
charge, it cannot be said that he acted upon reasonable and
probable cause. The fact that the plaintiff has been acquitted is not
prima facie evidence that the charge was unreasonable and false.
Lack of reasonable and probable cause is to be understood
objectively, it does not connote the subjective attitude of the
accuser. The fact that the accuser himself thinks that it is
reasonable to prosecute does not per se lead to the conclusion that
he had a reasonable and probable cause.
4. Malice
Brown v. Hawkes (1891) 2 QB 718
Malice for the purposes of malicious prosecution means having any

other motive apart from that of bringing an offender to justice. Spite
and ill-will are sufficient but not necessary conditions of malice. Malice
means the presence of some other and improper motive that is to say
the legal process in question is initiated for some other purpose than
its legally appointed and appropriate one. Anger and revenge may be
proper motives if channelled into the criminal justice system. The lack
27
of objective and reasonable cause is not evidence of malice but lack of
honest belief is an evidence of malice. In Allen v. Flood a general rule
was propounded that an act lawful in itself does not merely become
unlawful because of the bad motives of the actor and some of their
lordships in the House of Lords suggested that malicious prosecution
was not really an exception to this rule. The settled rule is that malice
is the gist of the action for malicious prosecution and must be proved
by the plaintiff in the first instance. It is for the plaintiff to prove that
there was an existence of malice. The burden of proving malice lies
upon the plaintiff. Malice may be proved by previously stained
relations, unreasonable or improper conduct like advertising of the
charge or providing false evidence. Though mere carelessness is not
per se proof of malice, unreasonable conduct like haste, recklessness
or failure to prove enquiries would be some evidence. There may be
malice either in commencing a prosecution or continuing one which
was honestly began. The mere fact that criminal prosecution resulted
in acquittal or discharge of the accused will not establish that the
defendant had acted with malice.
5. Damage
The plaintiff has to prove that he has suffered damage as a result of

the prosecution complained of. Even though the proceedings terminate
in favour of the plaintiff, he may suffer damage as a result of the
prosecution. The damage may not necessarily be pecuniary. According
to the Holt C.J. classic analysis in Saville v. Robert (1899) 1 Raym
374, there could be three sorts of injury and any one of them could be
sufficient to support any action of malicious prosecution:
1. The damage to a man’s fame as where the matter whereof he is

accused is scandalous;
2. The damage done to a person as where man is put to a danger of
losing his life , limb or liberty;
3. The damage to a man’s property as where is forced to expend
money in necessary charges, to acquit himself of the crime of which
he is accused.
The damage must also be the reasonable and probable results of

malicious prosecution and not too remote. In assessing damage the
court to some extent would have to consider:
28
 The nature of the offence the plaintiff was charged of;
 The inconvenience to which the plaintiff was charged to;
 Monetary loss and;
 The status and prosecution of the person prosecuted
Example of Malicious Prosecution:
If A caused B to be arrested and jailed for a debt, knowing that B owed no

such debt, B would have an action for malicious prosecution. Further, if as a
condition for B's release, A extorted certain property from B, B would also
have an action for abuse of process as you will understand in the following
section.
4. Elements of Abuse of Process
You have learnt in relation to malicious prosecution, that malice, want of

probable cause, and termination in favor of the person initiating or
instituting [abuse of process] proceedings are necessary elements for a
prima facie case. It must be NOTED that these elements are NOT necessary
for a claim in abuse of process. The pivotal issue in determining abuse is
whether a plaintiff has an ulterior motive for filing a civil suit against the
defendant. Abuse of process is defined as a misuse of a validly issued
process. You must therefore, understand the impact of the term, "valid
process." "Process" refers to procedure. For example, "Process" is the means
through which a court compels appearance of a party. Abuse of Process
involves the knowing misuse of public access to courts. Tort law defines
Abuse of Process as a misuse or perversion of the court procedure and due
process without grounds for legal action. Process refers to the summons
from the court. Abuse of process is the misuse of process regularly issued to
accomplish an unlawful ulterior purpose.
The broad construction of the term "process" is illustrated by the nineteenth

century English case of GRANGER V. HILL which was the first instance in
which relief was granted for an abuse of process. In this case, the plaintiff
borrowed money from the defendant, giving him a mortgage on plaintiff's
vessel as security. The plaintiff retained the registration of the vessel in his
own name. The Defendant attempted to collect the debt ten months before
maturity. When the plaintiff was unable to pay, the defendant caused him to
be arrested and jailed. As a condition for his release from prison, the plaintiff
29
was forced to give up the registration of the vessel. In holding for the
plaintiff and establishing abuse of process as a separate tort, the court said:
This case is altogether distinct from cases of malicious prosecution or arrest in

which it is always necessary to allege and prove the former proceeding is at
an end. It is an action for abusing the process of law, by employing it to
extort property to which the defendants had no right. That is of itself a
sufficient cause of action without alleging that there was no reasonable or
probable cause for the suit itself.
Abuse of process, an intentional tort, requires proof of the following

elements:
1. Defendant's misuse of a valid process, properly issued by the

court in the course of a legal proceeding
Abuse of process is defined as a misuse of a validly issued process. It is,

therefore, important to understand the impact of the term, "valid
process." "Process" refers to procedure.
2. Defendant's ulterior motive in misusing the process and

(abuse)
3. Consequential damage to the Plaintiff as a result of defendant's

conduct
Examples of what constitutes abuse of process:
A Court upheld an award for abuse of process where the defendant’s

lawyer, with knowledge that there was no basis for the claim, brought
a lawsuit against a medical doctor for ethical malpractice, with the
ulterior purpose of coercing a nuisance claim settlement. The trial
judge found that attempting to force payment of the claim rather than
obtaining security for the debt was the ulterior purpose and that
attaching all of the respondent's equipment and refusing to release
any of it was the willful act not proper in the regular conduct of the
proceeding. In another case, the Plaintiff's claim for abuse of process
rested on his assertion that the City wrongfully charged him with a
criminal violation and then attempted to use the prosecution as a
bargaining tool in obtaining a resignation from him. The Court held
that was sufficient to sustain an abuse of process claim.
30
Example of what does not constitute abuse of process
In one case, the Court rejected a claim for abuse of process because
the plaintiff could not present "specific facts that the Defendant had an
ulterior purpose in the underlying lawsuit, other than resolving a legal
dispute, and that the Defendant wilfully and improperly used the legal
process to accomplish that purpose".
For example, if a creditor files suit for a debt owed when the real
reason is to force the debtor to pay off another unrelated debt, that's
an abuse of process. Other examples would include filing a civil action
when the ulterior purpose is to extort money or other property or
using the legal process solely to harass, intimidate or inconvenience
someone else. For example, malicious prosecution might occur where
A sues B for breach of contract, knowing that there was no breach. On
the other hand, abuse of process might occur where, during the course
of the breach of contract proceedings, A has arrested B and put in jail,
intending to coerce a larger settlement from B.
6. Exercise
7. Conclusion
You have learnt in this unit that malicious prosecution is an abuse of
the process of the court by wrongfully setting the law in motion
against someone on a criminal charge. In order to succeed the plaintiff
must prove that there was a prosecution without any just and
reasonable cause, initiated by malice and the case was decided in the
plaintiff’s favour. It is necessary to prove that Plaintiff suffered some
injury as a result of the prosecution. The burden of proof rests on the
Plaintiff, who has to prove the existence of malice.
You have observed in this unit that malicious prosecution and abuse of
process are distinct torts. Malicious prosecution concerns a meritless
lawsuit (and all the damage it inflicted) whereas abuse of process
concerns the misuse of the tools the law affords litigants once they are
in a lawsuit (regardless of whether there was probable cause to
commence that lawsuit in the first place).
31
Unit Four
Trespass to Land
1. Introduction
This unit introduces you to the tort of trespass to land which consists of any
unjustifiable intrusion by a person upon the land in possession of another. A
person may be sued for trespass in the courts whether or not the claimant
has suffered any damage. This tort was developed in order to protect a
person's possession of land, and so only a person who has exclusive
possession of land may sue under trespass. You must note that a landlord of
leased premises does not have exclusive possession, nor does a lodger or a
licensee. However, a tenant or subtenant does. This unit must be read in
comparison with the section on nuisance.
2. Objectives
By the end of this unit, you should:
1. Explain what constitutes trespass to land;

2. Understand that there is no need for the Plaintiff to prove that they
have suffered any damage as a consequence of the Defendant
trespassing on their land;
3. Apply the principles relating to trespass to every day occurrences
relating to land in your community
4. Compare and contrast the torts of trespass to land and nuisance.
Readings:
3. Meaning of ‘trespass to land’

 ‘Trespass’- unlawful entry on land- ‘direct’ or ‘indirect’
Shell & BP Zambia Limited v. Conidaris and others (1975) ZR 174
Bernstein v Skyviews [1978] QB 479: the defendant flew over the plaintiff’s
house to take photos of it and the defendant claimed trespass and invasion
of privacy. The court denied this, saying that an owner's rights in the
airspace above his land were restricted to such height as was necessary for
the ordinary use and enjoyment of the land and structures upon it, and
above that height he had no greater rights than any other member of the
32
public. Griffiths J reached this decision on the basis of balancing the interests
of private individuals with the public at large to use spaces.
League against Cruel Sports v Scott [1986] QB 240: The plaintiff company
owned various parcels of unfenced moorland, which had been acquired in
order to establish sanctuaries for wild animals, and over which it did not
allow hunting. Following a number of separate incursions onto its land by the
local hunt, the plaintiff claimed against the defendants, who were joint
masters of the hunt, that they had on several occasions, either by
themselves, their servants or agents, or by hounds controlled by them,
trespassed on the land, and it claimed against the defendants a declaration,
damages, and injunctions to restrain the defendants from further such
incursions. Park J held that if either the defendants or their servants or
agents had entered the land (or allowed their hounds to do so) whether by
intention or negligence, they would be liable for trespass.
Examples of trespass include removing any part of the land in the possession
of another, or any part of a building or other erection attached to the soil. It
can also be a trespass to place something on, or in, land in the possession of
another – such as dumping rubbish. There are a number of legal
justifications to trespass, including: licence to enter by law, justification by
right of way or easement, justification by licence or necessity and various
powers of entry granted to officers of the law, such as the police.
A person who has a right to come onto the land may become a trespasser by
committing wrongful acts after entry. For example, a mail carrier has a
privilege to walk up the sidewalk at a private home but is not entitled to go
through the front door. A person who enters property with permission but
stays after he has been told to leave also commits a trespass. Moreover, an
intruder cannot defend himself in a trespass action by showing that the
plaintiff did not have a completely valid legal right to the property. The
reason for all of these rules is that the action of trespass exists to prevent
breaches of the peace by protecting the quiet possession of real property.
4. Conclusion
It has been shown in this unit that every unlawful entry onto another's
property is trespass, even if no harm is done to the property.
33
Unit Five
Negligence
1. Introduction
In this unit, you will learn that negligence is a tort which means there has
been an omission to do something which a reasonable man would do, or
something has been done, which a “reasonable man” would not do.
Negligence is the breach of a legal duty to take care by the defendant
which results in undeserved damage to the plaintiff. You will further notice
in this unit that the tort of negligence arises in many day to day activities
in society- road accidents, during hospital visits and other places.
Negligence is conduct falling below the standard established for the
protection of others against unreasonable risk or harm. This standard of
conduct is the ordinary prudence that would be required in the particular
circumstances. The general standard of conduct required by law is a
necessary complement of the legal concept of ‘duty’. There is not only the
question ‘did the defendant owe a duty to be careful? But also what
precisely was required of him to discharge it, it is for the court to
determine the existence of a duty relationship and to lay down in general
terms the standard of care by which to measure the defendant conduct.
Negligence must be proved by whoever alleges it, if there is a duty and a
breach of it but no injury or damage can be proved, an action in
negligence would fail. If there is damage, it must be traceable to the
breach. It must be a damage foreseeable to a reasonable man as likely to
arise from the breach. The damage must not be too remote.
Readings:
2. Objectives
At the end of this unit, you should:
1. Understand the definition of Negligence and how it can be established;

2. Explain the circumstances of negligence act
34
3. Know the plea res ipsa loquitor
4. Know the appropriate condition under which Res ipsa loquitor will
apply.
3. Elements of negligence:
D owes duty to C D breaches it C suffers loss/damage 
causation (but for, remoteness, within scope of D’s duty) =
liability.
 Duty of care
 Breach of duty of care
 Consequential loss/damage
3.1 Duty of care

Donoghue v. Stevenson (1932) AC 562:
House of Lords held there was a legal duty, establishing
(i) T h a t manufacturers h a v e a duty to take care for their

consumers
(ii) That R m us t t ake “reasonable care to avoid causing
foreseeable injury”.
Lord Atkin: Negligence:
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour”. He defines
“neighbour” as people who are “so directly affected” by my act or omission that I
“ought reasonably to have them in contemplation as being so affected” when
I undertake the act/omission.
This is the meaning of the “proximity” doctrine i.e. not merely physical
proximity.
Lord Macmillan:
To whom was the duty owed? All “potential consumers” of his product. “Liability
occurs where a reasonable man would have foreseen, and could have avoided
the consequences of his act/omission” . Circumstances will always dictate
whether (i) there was a duty of care and (ii) to whom it was owed.
Home Office v Dorset Yacht Co (1970) AC 1004

35
In a given set of circumstances, foreseeability, vicarious liability,
proximity and public policy should all be considered in deciding
whether the duty exists.
In the two cases of Ann’s v Merton LBC [1978] AC 728, 751-752 and
Caparo v Dickman [1990] 2 AC 605, 616-618, a NEW TEST for duty of
care was advanced as:
EITHER a duty of care has been established in these circumstances

previously- Donoghue v. Stevenson example OR
(1) There is reasonable foreseeability of harm

Bourhill v. Young (1935) 2 All ER 396
(2) There is proximity

Donoghue v. Stevenson (1932)
Zambia Breweries v. Mwanza SCZ Judgment No. 39 of 2000
Sata v. Zambia Bottlers SCZ No. 1 of 2003
Continental Restaurant and Casino v. Aridah Chulu
Anns v. Merton (1978) AC 728
Murphy v. Brentwood (1991) 1 AC 398
(3) It would be fair, just and reasonable to impose a duty of care.
Hill v. constable of West Yorkshire (1943) AC 92
Marc Rich & Co v Bishop Rock Marine Co [1996] AC 211
Phelps v Hillingdon LBC [2000] 3 WLR 776, 808-809
SUMMARY OF DUTY OF CARE
- Neighbour test
- 3- stage Caparo case test
- Role of public policy (statutory consideration)
- Psychological harm
3.2 Breach of duty of care/standard of care

 The reasonable man- objective test- Reasonable care-
‘did the tortfeasor exercise the care that a reasonable
person would have exercised’- NOT ‘did he do his best?’
Daka v. Attorney General (1990- 1992) ZR 131
Glasgow Corporation v. Muir (1943) AC 448
36
 Reasonable foreseeability
1. MAGNITUDE OF FORSEEABLE RISK (i) likelihood of
injury resulting, (ii) seriousness of the injury risked
Bolton v. Stone (1951) AC 850
Blyth v. Birmingham Waterworks (1856) 11 Exc 781
Latimer v. AEC (1952) 2 QB 701
2. IMPORTANCE OF OBJECTIVE TO BE ATTAINED

Daborn v. Bath Tramways (1946)2 All ER 333
Watt v. Hertfordshire (1954) 1 WLR 835
Ward v. LCC (1938) 2 All ER 341
3. PRACTICALITY OF PRECAUCATIONS
1. Known characteristics of party exposed to the risk- Latimer v.
AEC
2. Tortfeasor’s state of health- Paris v. Stepney Borough Council
(1951)
4. ADDITIONAL/AVAILABLE STATUTORY/CONTRACTUAL
DUTIES- employer/employee, (competence of staff, proper
tools/ machinery/environment, close, adequate supervision)
 RES IPSA LOQUITUR (‘the thing speaks for itself’) – Scott

v. London and St. Katherine Dock co. (1965) 3 HC 596- (a)
tortfeasor must have control over the thing that caused damage
and the accident would not normally occur without carelessness-
Easson v. LNER (1944) 2 All ER 425, (b) The cause of the
accident must be unknown- Eagle Charalambous v. Phiri (1994)
SJ 52
Mahon v. Osborne (1939) where res ipsa loquitur is pleaded, the
burden of proof shifts from claimant to tortfeasor- compare with
Nyasulu v. Attorney General (1983) ZR. 105(proof of negligence
rests on claimant)
SUMMARY OF BREACH OF DUTY OF CARE
- reasonable foreseeability
- reasonable man
- other factors (vulnerability of the claimant, importance of
tortfeasor’s objective, consideration of precautions)
37
- proof of breach
3.3 Consequential loss/injury/damage
Even if the claimant proves every other element in tortious liability s/he
will lose the action, or in the case of torts actionable per se, fail to
recover more than nominal damages, if what the alleged tortfeasor
did was not a legally effective cause of his loss i.e. causation in law
(sufficiently and legally effective cause of injury/loss/damage to a
claimant) and causation in fact (consider whether there is a break in the
chain of causation ‘the but for’ test.)
 Causation and Remoteness of Damage
Remoteness of damage is an aspect of causation. Before the question

of remoteness arises, the Plaintiff must show that the defendant’s
conduct was a substantial factor in bringing about his injury
(causation). If the Plaintiff would have suffered the same injury despite
the defendant’s conduct, he will not receive compensation (the ‘but for’
test): Barnett v. Chelsea Hospital Management Board (1969) 1 QB
428.
Fairchild v. Glenhaven Funeral Services (2003) AC 32
In the case of Gregg v. Scott (2005) AC 176, As a result of the

defendant’s negligence, the plaintiff’s cancer was diagnosed late and
his chances of long term survival were consequently reduced from
42% to 25%. The plaintiff argued (1) that the reduction in chances of
survival WAS injury, or (2) that reduced chances of survival should
give rise to liability in its own right. The House of Lords rejected “lost
opportunity” as giving rise to liability. This case was decided on the
traditional guidelines for a tort claim. Held: The law treats every
harmful event as having a single determinate cause. It is therefore
impossible to compensate a person for an act which has not caused
the harmful event. Here on balance of probabilities the impugned
treatment did not ‘cause’ the outcome (it merely reduced plaintiff’s
survival chances). To allow compensation in proportion to ‘chance’
38
would contradict this fundamental position that the law takes on
causation. Exception to the rule, such as loss of a chance where the
loss is dependent on third party conduct, is an arguably unprincipled
exception. The Fairchild case exception is tightly confined. Another
consideration is floodgates, since nearly everything a doctor does
affects survival chances by a small percentage.
Baker v Willoughby [1970] AC 467; Jobling v Associated Dairies Ltd

[1982] AC 794
Two competing views in test for legal causation:
1. Consequences are too remote if a reasonable man would not

have foreseen them: Rigby v. Hewitt (1859) 5 Excq. 240;
Greenland v. Chaplin (1850) 5 Excq. 243
2. If a reasonable man would have foreseen any damage to the
claimant as likely to result from his act, then he is liable for
the direct consequences of his act or omission, suffered by
the claimant, whether a reasonable man would have foreseen
them or not.
 Remoteness of damage: the test for remoteness is reasonable

foreseeability:
Re Polemis (1921) 3 KB 560; The Wagon Mound (1961) AC 388
(1 and 2). The test is objective: what matters is not what the
defendant actually foresaw (subjective), but what a reasonable
man would have foreseen as the consequences of the tort. Meah
v. McCreamer (1986); Hughes v Lord Advocate of Scotland
[1963] AC 837; Doughty v Turner [1964] 1 QB 518; Tremain v
P i k e [1969] 1 WLR 1556: In this case, the defendant was
employed by the plaintiff, on the plaintiff’s farm and contracted
Weil’s disease. Court of Appeal held that it was so rare for Weil’s
disease to be caught by humans and knowledge of the disease
was so low, that it was not reasonably foreseeable that disease
could occur. The minimal foreseeable possibility of the defendant
contracting the disease meant (1) that the plaintiff was not in
breach of his duty of care to take reasonable steps to prevent
the defendant contracting the disease, and (2) even if he was in
breach, it was not reasonably foreseeable that the defendant
would be harmed (i.e. even if the defendant did nothing to
protect the plaintiff from harm, he would still not be liable
39
because it was not reasonably foreseeable that, even in breach,
the defendant would catch the disease).
In Jolley v Sutton LBC [2000] 1 WLR 1082: the defendant knew

of a boat beside a block of flats and made plans to remove it
which were never implemented. Ps (children) played in it and the
boat, which was rotten, collapsed causing them injuries. House
of Lords allowed the plaintiff’s claim. The council had conceded
that it had a duty to remove the boat, but claimed that only
minor injuries were foreseeable from the rotten planking giving
way. House of Lords held that since the means by which injury
was reasonably foreseeable, an injury of a greater extent but of
the same type (the type being injury from planking giving way)
came within the scope of the defendant’s duty of care.
 Novus Actus Interveniens- when a chain of events result from a

negligent act, sometimes the loss suffered is not within the
scope of compensation merely because it is not reasonably
foreseeable. When the chain of events is ‘broken’ by an
intervening event (novus actus interveniens), liability by the
original tortfeasor may also be said to be broken: Lamb v.
Camden Borough Council (1981); Knightly v. Johns (1982) 1
WLR 349; Scott v. Shepherd (1773)
 The ‘Eggshell Skull’ principle: You must take your victim as you
find him- harm caused to a claimant that is worsened by the
claimant’s unusual condition does not exempt alleged tortfeasor
from liability. See Robinson v. Post Office (1974) 1 WLR 1176;
Smith v. Leech Brain (1961) 3 All ER 1159
Summary of consequential loss
- Causation in fact (material increase in risk, ‘Mesothelioma

Cases’, successive causes of harm, ‘breaking the chain of
causation’)
- Causation in law (‘thin skull rule’/’eggshell principle’)
4. Exercise
A drove his car over the speed limit and failed to keep a proper lookout, as
he was talking to the passenger next to him. A’s car struck B, a pedestrian,
40
causing personal injuries to B. Analysing this event in terms of the legal
categories, A owed a duty of care to B as one road user to another. A was in
breach of the duty in speeding and failing to keep a proper lookout (i.e. A
was ‘negligent’). B has suffered damage as a result of A’s negligence. If B
had failed to look before stepping into the road, it would be open to a court
to find that B had been contributorily negligent and reduce his damages by
the proportion in which he was held to be responsible for the accident.
5. Conclusion
In this unit, you have learnt the legal theory of negligence, how it is defined
and what it takes to bring a successful action. The essential elements of a
negligence case; duty, breach, cause in fact, proximate cause, damages,
Standard of Care and the Reasonable Person have been explained. In most
situations, a defendant is required to exercise the same level of care as a
reasonable person would in similar circumstances. In a negligence claim, the
plaintiff must show that the defendant was at fault for his or her injury.
41
Unit Seven
Protection of Reputation (Defamation)
1. Introduction
Defamation is a tort against the reputation of a person. It is pertinent
to know that there are two popular classes or divisions of the term
defamation, namely libel and slander. These terms shall be discussed
in the main contents of this unit. The tort of defamation is guided to a
large extent by the core struggle between the right to reputation on
one hand, and free expression on the other. This unit begins by
unpacking the understanding of what constitutes defamation and how
it can offend another person’s reputation.
Readings:
Defamation Act, Cap 68 of the laws of Zambia
2. Objectives
The objective of this unit is to look at the meaning and content of the
defamation of libel and slander, as well as distinguish and differentiate
between libel and slander. It is expected that by the end of this unit,
you will understand what constitutes defamation and distinguish it
from mere vulgar language which may be a common phenomenon in
Zambia.
3. What is Defamation?
 Libel – defamation in permanent form
TV, newspapers, radio = permanent, public performances
in theatre = permanent, actionable per se Monson v
Tussauds (1894) 1 QB 671
 Slander = defamation in temporary/transient form
(gossip by word of mouth)
 NOT actionable per se - need proof of tangible loss - slander
requires evidence of actual damage to reputation.
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4. Elements of Defamation
1. Defendant’s words are defamatory, AND
2. The defamatory words refer to the Plaintiff, AND
3. Defamatory words have been ‘published’ (published =
communicated to a 3rd party)
MEANING OF ESSENTIAL ELEMENTS:
(a) “Defamatory”
Words are defamatory if:
- They tend to lower the Plaintiff in the eyes of right-thinking
members of society generally – Sim v Stretch (1936) 2 All ER
1237, and/or
- They cause the Plaintiff to be shunned/avoided – Youssoupoff v
MGM (1934) 50 TLR581 and/or
- They expose Plaintiff to hatred, contempt or ridicule –
Parmiter v Coupland (1840) 6 MW 105
- In Tolley v Fry (1931) AC 333, Lord Hailsham held that: Whether
a publication defames depends on “the inference which would be
drawn by the ordinary man or woman from the facts of the
publication”.
Lord Dunedin: The circumstances, not solely the words,
surrounding the publication are taken into account in
determining whether it is capable of libelous meaning. He sums
up the case as: “(1.) would the caricature associated with the
advertisement admit of a reasonable inference that the plaintiff
had assented to be so depicted? That depends on the view taken
of the picture, of its surroundings, and of its use. (2.) If that
inference were drawn would it be deleterious to the plaintiff's
position as an amateur golfer, and to do him harm?”
- See the following additional cases for what has been found to be
defamatory:
Cassidy v Daily Mirror (1929) 2 KB 331
Newstead v London Express (1940) 1 KB 377
Lewis v Daily Telegraph (1964) AC 234
Mutemba v. Zambia Newspapers Limited and another (1972) ZR
107
(b) Reference to the Plaintiff

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Morgan v Oldham Press (1971): Where the claimant is not named, the
test which decides whether the words used refer to him is the question
whether the words are such as would reasonably lead persons
acquainted with the claimant to believe that he was the person referred
to. For the plaintiff to succeed in an action for defamation, the plaintiff
must prove that the publication referred to him. In other words, he
must prove that he is the person defamed.
Cassidy v Daily Mirror Newspapers (1929)
Hulton & Co v Jones (1910) - intent is irrelevant
Mwiinga v. Times of Zambia limited (1988- 1989) ZR 177
Cobbet- Tribe v. The Zambia Publishing Company Limited (1973) ZR 9
Kingsley Chinkuli and Malimba Masheke v. Times Printpak and

Kazembe 1996/HP/4833 (unreported)
(c) Publication of defamatory content:
The plaintiff must prove that the defamatory statement was published
or communicated by the defendant to at least one person other than
the plaintiff. The basis of action in defamation is not the words
themselves but the publication of it to another person other than the
plaintiff. Publication by a defendant may be in the form of writing as a
libel or orally by words as a slander. It is not necessary in all cases to
prove that the libellous matter was actually brought to the notice of
some third party. If it is made a matter of reasonable inference that
such was the fact, a prima facie case of publication will be established.
This is particularly so when a book, magazine or newspaper containing
a libel is sold.
Huth v Huth (1915) 3 KB 32; Slipper v BBC (1991) 1 QB 283; (1991)

1 All ER 165; Godfrey v Demon Internet (1999) 4 All ER 342;
McManus v Beckham (2002) EWCA Civ 939, 2002 1 WLR 2982
5. Defences to defamation
See the provisions of the Defamation Act, Cap 68
5.1 Justification/truth
If D’s statement is FACTUALLY TRUE, he has a complete defence.
Banda v. Zambia Publishing Company Limited (1982) ZR 4
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5.2 Fair comment
It’s a defence for D to show that his statement is:
-An expression of opinion supported by some facts
-On a matter of public interest, and
-“Fair”- in reference to the comment or opinion means it
c o u ld be h e ld by an y H ON ES T pe r s o n , h o w e v e r
‘prejudiced’ or ‘obstinate’.
Telnikoff v Matusevitch (1991)
Bweupe v. Attorney- General (1984) ZR 21
Zulu v. Times Newspapers Limited (1985) ZR 30
5.3 Qualified privilege

In some situations freedom of speech is so important that
defamation doesn’t apply e.g. parliamentary proceedings
Siwo v. Times Newspapers Limited (1987) ZR 46
N/B: MALICE defeats/negatives defences of fair comment

and qualified privilege
6. Conclusion
You have seen that there is always a delicate balance between

one person's right to freedom of speech and another's right to
protect their good name. The term "defamation" is an all-
encompassing term that covers any statement that harms
someone's reputation. If the statement is made in writing and
published, the defamation is called "libel." If the hurtful
statement is spoken, the statement is "slander." The government
cannot imprison someone for making a defamatory statement
since it is not a crime. Instead, defamation is a civil wrong, or a
tort. A person that has suffered a defamatory statement may sue
the person that made the statement under defamation law. The
elements of defamation can be summarized as:
 Someone made a statement;
 That statement was published;
 The statement caused you injury;
 The statement was false; and
 The statement did not fall into a privileged category.
45
Unit Eight
Nuisance (Public and private)
1. Introduction
Nuisance is a legal term which has no definite meaning. It generally
covers acts unwarranted by law which causes inconvenience or
damage to either the individual or the public in the exercise of rights
common to all subjects, acts connected with the enjoyment of land,
other environmental rights and acts or omissions declared by statute
to be a nuisance. The distinction between the tort of Nuisance and
others such as terms like Trespass and Negligence which you will
encounter in this module may be narrow.
2. Objectives
At the end of this Unit, you should be able to:
(a) Define and recognise actions which can classified as

Nuisance;
(b) Distinguish public and private nuisance;
(c) Explain the categories of private nuisance;
(d) Understand the general nature of nuisance;
(e) Differentiate nuisance from trespass, negligence and
any other torts.
Readings:
3. Public Nuisance
Public nuisance is a nuisance that is against the law and endangers the
health, morals etc. of the public. It comprises a long list of (usually
criminal) offences. Private nuisance is that which interrupts an individual’s
enjoyment of their land. Nuisance is a term used to register or express
one’s condition of inconvenience or annoyance caused by a direct or
indirect action of another person. It can also be said that nuisance is the
negative effect of somebody’s action or omission against the normal
enjoyment of life by the complainant.
The Tort of nuisance has a restricted scope and not every inconvenience
or annoyance is actionable. The situations described as nuisance include:
46
1) Emissions of noxious gas or fumes from a factory.
2) Emission of noxious gas or fumes from moving Lorries, trains or aircraft.
3) Noise from the crowing of cocks in the early hours of the morning.
In the United Kingdom, public nuisance occurs where:

 Act/omission which “materially affects the reasonable comfort and
convenience of life of a class of Her Majesty’s subjects”
 The claimant does not need to have an interest in any relevant land
Main uses
a) Obstructing public highways / navigation rights
b) Objects falling onto highway from adjoining premises
c) Carrying on an offensive trade
d) Throwing fireworks about the street
4. Private Nuisance
Rationale: Preserve a balance between conflicting interests – occupier to
use his land and neighbour’s quiet enjoyment of his premises.
 Activity/state of affairs causing substantial and

unreasonable interference (need assessment of individual
circumstances) with the claimant’s land, use or enjoyment
of it.
 Not actionable per se (unlike trespass)- the claimant must first
prove damage through tangible/ intangible interference with his
use or enjoyment
 Range of activities w/potential to constitute a nuisance
 noxious fumes
 smoke
 noise
 heat
 generation of violent vibrations
 In practical terms, a claimant normally has a choice in which terms

to phrase his action – negligence or nuisance (usual remedy in
nuisance is injunction while in negligence it’s damages)
 The main differences between public and private nuisance are
therefore:
(a) Public nuisance is a crime and private nuisance is a civil

wrong only
47
(b) To succeed in private nuisance, the plaintiff must have
interest in land. There is no such requirement in public
nuisance
5. Factors to consider in Nuisance
5.1 Was there interference?

The injury or interference complained of will be considered by a court
in the following one or a combination of factors:
(a) Whether there is physical injury or sensible material

damage
The plaintiff can successfully sue in private nuisance if he can

prove that he had suffered or he is suffering real or sensible
damage or inconvenience. The nature of the injury suffered by
the plaintiff will be examined by the court. The claim will succeed
where a private nuisance is alleged to have caused damage to
property directly or indirectly and only if the injury is sensible or
substantial and can be perceived by any of human sense organs
without the aid of science. When a physical damage is
substantial and can be easily seen and accessed, without the
assistance of a scientific aid, there is no problem. However,
where the damage cannot be easily seen, then expert evidence
may be led including the aid of scientific apparatus to prove it.
Therefore, in determining what amounts to a sensible material
damage to property, it is sufficient if the aid of science is used to
identify such damage or inherent change in the property. Thus,
in appropriate cases, scientific edifice is admissible to ascertain
that actual damage has occurred in property occasioned by the
defendant’s conduct.
It will thus be easy for the court to conclude that there is private
nuisance where damage is done by the defendant’s conduct to
the plaintiff’s property or the defendant’s action causing
reduction in the plaintiff’s property. In ST. HELEN’S SMELTING
CO. v. TIPPING (1865) 11 HL Cases 645, the plaintiff
respondent, who lived in an industrial area, established that his
trees and shrubs had been sensibly damaged by fumes from the
copper smelting plant of the defendant appellant company and
that the value of the property had been reduced… The House of
48
Lords held that this was an actionable nuisance. The requirement
of sensible material interference with the plaintiff’s land was
satisfied. It was irrelevant that the defendant was carrying on
business in an industrial area.
(b) Whether there is substantial interference with the use and

enjoyment of the land
When interference with the use and enjoyment of the land is

alleged, as a general rule, a plaintiff’s claim would succeed if the
interference is substantial. The classic rule is the case of
VANDERPANT v. MAYFAIR HOTEL CO. LTD (1930) I Ch. 138 (Also
see TETTEY v. CHITTY (1986) I ALL ET 663) where Luxmoore J.
said:
Every person is entitled as against his neighbour to the comfortable

and healthy enjoyment of the premises occupied by him, and in
deciding whether, in any particular case, his right has been interfered
with and a nuisance thereby caused. It is necessary to determine,
whether the act complained of is an inconvenience materially
interfering with the ordinary physical discomfort of human existence,
not merely according to elegant or dainty modes and habits of living,
but according to plain and sober and simple notions obtaining among
English people.
The learned judge continued:
It is also necessary to take into account the circumstances and

character of the locality in which the complainant is living. The making
or causing of such noise as materially interferes with the comfort of a
neighbour, when judged by the standards to which I have just
referred, constitutes an actionable nuisance, and it is no answers to
say that the best known means have been taken to reduce or prevent
the noise complained of, or that the cause of the nuisance is the
exercise of a business or trade in a reasonable and proper manner.
Again, the question of the existence of a nuisance is one of degree and
depends on the circumstances of the case.
(c) Unreasonableness of the conduct of the defendant
The conduct of the defendant in respect of injury to property or

in respect of interference with the enjoyment of land is vital to
the success of an action of the plaintiff in his claims for relief.
The court will consider the conduct of the defendant whether it is
reasonable having regard to the ordinary usage, life style or
practice of mankind in the particular community under reference.
49
For a plaintiff to succeed in a claim for nuisance, the defendant’s
conduct must be adjudged to be unreasonable having regard to
the circumstances of the case. There is no precise criterion for
determining this issue of unreasonableness; a lot depends upon
the circumstances of the individual case. Therefore the right to
enjoy one’s premises or property is subject to the right of his
neighbour not to be unreasonably interfered with. In the case of
SEDLEIGH-DENFIELD v. O’CALLAGHAN (1940) AC 880 at
908, Lord Wright explained the law thus:
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 neighbour not to be
interfered with, it is impossible to give any precise or universal
formula, but it may broadly be said that a useful test is perhaps what
is reasonable according to the ordinary usages of mankind living in
society.
In considering the reasonableness of the conduct alleged to be

constituting nuisance, the court will apply the objective test. It is
the test of the conduct of a reasonable man in that particular
circumstance. That is a test of what a reasonable but neutral
conduct of a member of the public would be in that instance. The
courts have not defined the precise principles according to which
the reasonableness of a conduct is determined. However,
whether or not a particular act is reasonable or not is based on
(a) a consideration of the nature and circumstances of the
defendant’s activity on the one hand and (b) the nature and
extent of the interference in the plaintiff’s enjoyment of his land.
In deciding whether the defendant’s conduct is reasonable or

not, the court will look at a number of criteria which include but
not limited to the:
 Locality
A saying goes thus that one man’s meat is another man’s
poison. The standard of conduct and comfort protected by
the law for a community varies from place to place. The
nature, character or standard of a locality differs with
those obtainable in another locality. In cases of
interference with the use and enjoyment of land but not in
cases where there have been physical injury to property,
the nature, character or circumstances of the locality
where the activity has taken place may be taken into
account.
50
 Utility of the defendant’s conduct
The law allows a person to enjoy his property. Also the

enjoyment of such properties can be of great benefit to
community. The general rule is that the law will not allow a
private nuisance to continue just because the defendant has
shown that his conduct or act has social value, or is beneficial
to the community. The tort of private nuisance is therefore
concerned with balancing of the interests of landowners or
users and their neighbours or adjoining landowners and other
dwellers. The court as a general rule always put itself under
caution in determining whether such conduct is nuisance and
as a general rule will not compel a plaintiff to bear the burden
alone of an activity which may be of benefit to others in the
locality.
 Plaintiff’s abnormal sensitivity on his property
The law of nuisance will normally protect a plaintiff who is a

normal person and who suffers from an unreasonable conduct
of the defendant. Where the conduct of the defendant is
unreasonable he will be liable in nuisance to the plaintiff. An
unusually or abnormally sensitive plaintiff is not likely to
succeed in a claim for nuisance. As a rule, the law does not
protect a person who is unusually sensitive to the activities of
others around him. The standard of sensitivities or tolerance
that the court applies is that of a “normal” neighbour, person
or property. The maxim in Latin is: six utere tuo ut alienum
non laedas meaning that “you should use your land in a way
that will not harm other people”. The two points being raised
here are:
(i) The law of nuisance will not protect a plaintiff who is
abnormally or unusually sensitive to the conduct of
the defendant.
(ii) The law of nuisance will not protect the defendant
who is aware that the plaintiff is very sensitive to a
conduct but carries out the conduct to affect him in
an unreasonable manner.
In the case of Robinson v. Kilvert (1889) 41 Ch. D. 88,

the defendant was manufacturing paper boxes in a house and
leased the floor above to the plaintiff who kept a stock of
brown paper therein. The defendant heated his store with hot
dry air which raised the temperature of the plaintiff’s
51
premises and the brown papers which were stored by the
plaintiff’s store lost its special quality and consequently its
value. The plaintiff sued for damages. The court held: that the
defendant was not liable for nuisance. The brown papers lost
its special quality and got damaged because of their particular
sensitivity to temperature. In conclusion, when a plaintiff or
his property is unusually sensitive to a tolerable or reasonable
act of the defendant, which is a normal and regular act, the
plaintiff will not succeed in a claim for nuisance.
 Duration of the harm or injury
The duration, that is, how long should a nuisance or injury

suffered by the plaintiff can be before he can bring a claim
and succeed with it. The question of duration in the
continuance of a nuisance can help a court to determine
whether nuisance has occurred or not from the defend
ant’s action. The action for claim may arise based on the
duration of the conduct causing injury or inconvenience in
two instances:
(i) If the injurious action continues without a specific

term limit. For example, a big generator emitting
constant noise and fumes into ones premises will
constitute a nuisance.
(ii) A one-time noise and dust arising from the

demolition of a building next to one’s property
which is an isolated act of the defendant will not
amount to a nuisance. In the case of Sedleigh-
Denfield v. O’Callaghan (1940) AC 880
HL, the Defendants/Respondents allowed the
public pipe which was draining water from their
land to remain blocked and Plaintiff/Appellants
adjoining land was flooded with water as a result.
The plaintiff sued for damages and the court held
that; there was a nuisance caused by the
defendants for allowing the annoying state of
affairs to remain unrepaired. In this case, Lord
Atkin stated that the defendants:
“Created a state of things from which flooding

might reasonably be expected to result, it was
therefore a nuisance.”
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B u t i n t h e c a s e o f BARKER v. HERBERT
((1911) 2 KB 633 C.A). The defendant was the
owner of a vacant house on a street with an area
adjoining the highway. One of the railings of the
house had been broken and there was a gap in
the railing. A boy not living in the house climbed
through the railing, fell and injured himself. The
court held that the defendant was not liable for
nuisance. This decision was based on the fact that
the defendant had no knowledge of the breakage
of the rail.
 Defendant’s malice
The intention, motive, malice or the malicious behaviour of the

defendant will usually give the impression that the act of the
defendant is unreasonable and therefore can amount to
nuisance. It is generally not necessary to prove malice to
succeed against the defendant in a claim of nuisance. A
wrongdoer’s motive and intention considered to be malicious
may show that he is not behaving reasonably and lawfully.
Where the conduct of the defendant is considered to be wanton,
reckless or malicious to spite or annoy a neighbour, the court will
readily give judgment to the plaintiff as that will be considered to
be a nuisance. Nevertheless, it should be noted that a plaintiff
bringing a claim for nuisance is exercising a specific legal right
where malice may not make interference unlawful. It should
further be noted that there must be a balance between the
enjoyment of one’s property and non-interference with a
neighbour’s right.
Hunter v. Canary Wharf (1997) 2 All ER 426

a) Encroachment onto neighbour’s land
b) Direct physical injury to land
c) Interference w/quiet enjoyment of land
Examples:
Noise – Kennaway v Thompson (1981) QB 88 (motor boat
racing)
Smell – Wheeler v JJ Saunders (1996) Ch. 19 (pig farming)
Emotional distress (brothel in neighbourhood)
National Hotels Development Corporation (T/A Fairview Hotel) v.
Motala SCZ No. 10 of 2002
53
St. Helen’s smelting co. v. Tipping (1865) 11 ER 1483
Holbeck Hall Hotel v. Scarborough (2000) QB 836
Jasat v. Patel (1978) ZR 208
Allen v. Gulf Oil (1981) AC 1001
5.2 Who can sue?

The person who has a right and the right is being or has been taken away or
being interfered with is the one that has a right to sue in the tort of private
nuisance. In the light of the above, the person(s) who can sue in private
nuisance are:
(a) Anyone who has or uses land, or has an interest in land. One must
have proprietary interest or de facto exclusive possession in the
land – Hunter v Canary Wharf. The rationale is that the law is not
for remedying personal discomfort of persons affected, but
diminution in value of the land (capital or just amenity value).
(b) An occupier or user of land
(c) A reversioner of land may sue if his reversionary interest in land is
being or has been interfered with.
5.3 Who can claim?

It is not anybody that can be sued in the tort of private nuisance. A person
to be sued is any person in law bearing some legal responsibility in the
enjoyment of a land or property being either the plaintiff or the defendant.
The persons who can be sued for the tort of nuisance include:
(a) The Creator of the Nuisance: A person who committed a nuisance

may be sued. He is liable whether or not he is in occupation of land.
His liability remains whether or not he is able to abate the nuisance
without trespassing on the land of the third party.
(b) The Landlord: The landlord is obliged to put his land or property in
a state of affairs that will not constitute nuisance to visitors or other
users of the premises. The liability of the landlord for nuisance may
arise in the following circumstances:
 If he created the nuisance
 Expressly or impliedly authorized or ratified the nuisance
 If he allowed the state of affairs to continue
 If the property constitute a nuisance
54
 An occupier, being a person who has authority over the
premises or any of the tenants he puts in occupation. The
occupier may personally be liable in any of the following
circumstances:
(1) If he created the nuisance;
(2) If his servant or agent created the nuisance;
(3) If he engages an independent contractor to commit
the nuisance;
(4) If his licensee, guest, relation or lodger created the
nuisance of which he knew or ought to know but
failed to take appropriate step to stop it;
(5) If the nuisance was created by a trespasser, stranger,
predecessor in title or act of God of which the
o c c up ie r f a ile d t o d o a ny t hing t o s t o p i t s
consequence.
It should be noted that where there are several persons creating a nuisance,
the plaintiff can sue only one or any of the joint tortfeasors. It will not be a
valid defence for the defendant to show that he cannot answer for the
nuisance of the other tortfeasors.
6. Exercise
1. Differentiate between private and public nuisance.

2. Mr. X has a flourishing poultry supplying the community quality eggs and
poultry products. His neighbour Mr. Z is complaining and threatening to
sue Mr. X in the courts of law and would seek an injunction to restrain Mr.
X from operating the poultry farm because of the bad odor emanating
there from coupled with the noise coming from the crowing of cocks
especially at night, which always affects him and his household. What are
Mr. Z’s chances of success if he carries out his threat? Advise him with the
aid of decided cases.
7. Conclusion
Nuisance is a situation in which the action in question brings enjoyment and
financial increase to one party while the other party is suffering from the
same action or omission. Nuisance can be public or private. The plaintiff is
the party who suffers from the act or omission causing nuisance. The private
person brings an action in private nuisance on his own behalf and in his
55
private interest. An action in public nuisance can be brought on behalf of the
state and in the interest of the society. Public nuisance is a crime and as
such, the institution of criminal cases against such persons for their criminal
acts or omissions has to follow criminal procedure. Nuisance is an action or
inaction which can cause harm, interference or inconvenience to the plaintiff.
It is an arm of the municipal law that aims at maintaining good relationship
between the citizens of a state or country. It is the aspect of the law that
tries to teach a person to put his neighbour and other persons in his
community into contemplation before embarking on any activity, business or
pleasure. The law that tries to balance the right of the defendant to use and
enjoy his landed property with that of his neighbour, the plaintiff who may
suffer for that enjoyment. It gives redress to the plaintiff in deserving
circumstances. The unit also looks at who can sue in private nuisance and
who can be sued. These are the persons who have right to enjoy their land
and those who are interfering with that right of enjoyment as defendants.
Unit Nine
Occupiers Liability
1. Introduction
2. Objectives
Readings:
Occupiers’ Liability Act, Cap 70 of the laws of Zambia
British Railways Board v. Herrington (1972) AC 877
Tomlinson v. Congleton Borough Council (2004) 1 AC 46
Wheaton v. Lacon (1966) AC 552
Roles v. Nathan (1963) 1 WLR 1117

56
Phipps v. Rochester Corporation (1955) 1 QB 450
3. Rationale for occupier’s liability:
Statutory (Cap 70): “…to[provide for] the liability of occupiers and others
for injury or damage resulting to persons or goods lawfully on any land or
other property from dangers due to the state of the property or to things
done or omitted to be done there; and matters incidental thereto..”.
Common law: “occupational control- control associated with and arising

from presence in and use or activity in premises.”
4. Exercise
5. Conclusion
Unit Ten
Vicarious Liability
1. Introduction
2. Objectives
Readings:
Issues to consider:
b. Has a tort been committed?

c. What is the relationship of the employer to the tortfeasor?
d. Was the tort committed in ‘the course of employment’?
57
3. What is ‘vicarious liability’?
4. Is the person committing the tort the defendant’s

employee/independent contractor/agent?
Performing Rights Society v. Mitchell and Booker (1924) 1 KB 762
Market Investigations v. Ministry of social security (1969) 2 QB 173
London Drugs v. Kuehne and Nogel industries (1992) 3 SCR 299
Giorgio Fraschini and Motor Parts v. Attorney- General SCZ No. 12 of 1984
GDC Hauliers v. Trans-Carriers SCZ No. 7 of 2001
Lister v. Hesley Hall (2002) 1 AC 215
Salsbury v. Woodland (1970) 1 QB 324
5. Exercise
6. Conclusion
Unit Eleven
Strict liability (The Rule in Ryland’s v Fletcher)
1. Introduction
The rule in Ryland v. Fletcher represents one of the principal areas of Strict
Liability in the law of Torts. Liability is strict in cases where the defendant is
liable for damage caused by his act whether he is at fault or not. The
intention of the defendant whether for good or bad is not put into
contemplation in strict liability cases, what matters is whether that action
results in damage suffered by another person. Strict liability means that
reasonable precautions against escape do not shield a defendant from
liability. Strict liability is an absolute liability or liability without a fault. This,
however, may be subject to any defence available to the defendant. See the
case of Cambridge Water Works Co v. Eastern Leather. The Rule in
Ryland’s v. Fletcher is considered as a subspecies of nuisance- it is a tort
58
against land and has been applied to the escape of such things as fire, gas,
electricity, oil, fumes, vibrations and poisonous vegetation.
2. Objectives
The objective of this unit is for you to be able to:
 Explain what constitutes strict liability in the Law of Tort;

 Explain the specific nature of strict liability under the rule in Ryland’s v.
Fletcher;
 Differentiate between the liability under Ryland’s v. Fletcher and other
types of liability such as in nuisance and negligence;
 Demonstrate the application of strict liability in Zambia.
Readings:
Ryland’s v. Fletcher (1868) LR HL 330

Transco v. Stockport Metropolitan Borough (2004) 2 AC 1
3. Elements of strict liability
The case of Ryland’s v. Fletcher (1866) LR I. Exch. 265, affirmed (1868) LR

2 H.L 330)
The law of tort as stated in the Rule in Ryland’s v. Fletcher is a common law
rule which was restated by Blackburn J. after summing up the existing
principle of the common law which before then was scattered in earlier
decided cases. In this case, the defendant/appellant who was a mill owner
engaged independent contractor to build a reservoir on his land to supply
water to his mill. During construction, the contractors found disused mine
shafts and passages which unknown to them linked the plaintiff’s mines on
the adjoining land. The contractors carelessly omitted to block the disused
shaft and when the reservoir was filled with water, it escaped and flooded
the plaintiff’s mine inflicting damage. The plaintiff then sued for damage, the
defendant’s conduct did not appear to come within the scope of any existing
tort: they were not liable for trespass, because the damage was not direct
and immediate; nor for nuisance because the damage was not due to any
59
recurrent condition or state of affairs on their land; nor for negligence,
because they had not been careless and they were not liable for negligence
of their independent contractors. Blackburn J. held that the defendant was
liable. On appeal, the House of Lords upheld the judgment of the lower court
by affirming the liability of the defendants.
According to Blackburn J. the principle in the case is that:
A person who for his own purposes brings on his land and collects and keeps there
anything likely to do mischief if it escapes, must keep it 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.
In the House of Lords on appeal, Lord Cairns added the requirement that:
“The thing which escapes and causes damage should be a non-natural user
of the defendants land.”
Fundamentally, the rule in Ryland’s v. Fletcher is characterized by the

following:
a) Bringing and keeping a non-natural user on one’s land.
b) Duty to keep it on one’s land at own peril
c) Escape of the thing that causes damage
d) Liability for the natural consequences of its escape to another person’s

land
The scope of the Rule in Ryland’s v. Fletcher includes the elements which the
plaintiff must prove to succeed in a claim under the rule, namely:
a) A defendant intentionally bringing onto a claimant’s land

something and having non-natural use on his land, or kept
it on his land
This means that the defendant brought and kept the things on his land
himself or by a third party or an independent contractor. The word natural
means that which exist in or by nature without any act or omission of the
defendant. These include rocks, weeds growing above the fence to the
adjoining premises, rain water, water from flowing river etc. A non-natural
user is a thing which is purposely brought to the defendant’s land for
purposes of enjoyment, commerce or for any other purpose but was brought
by the defendant or a third party, independent contractor with his consent or
60
careless omission. There must be a bringing or a keeping by the defendant
of the thing that escaped and caused damage. Lawrence J. explaining the
law in the case of Bartlett v. Tottenham (1932) I Ch. 114 at 131 (see also
SMEATON v. ILFORD CORP 450, NEPA v. ALLI (1992) 8 NWLR pt 259,
p. 279) stated that the rule applies only to:
“Things artificially brought, or kept upon the defendant’s land.”
It follows from the above that, a defendant is not liable for the escape of
things which are by nature or naturally are on land. The things which are by
nature or naturally on land include:
(a) Vegetation which naturally grows on the land. Here a tree which
spread its branches across the fence to a neighbour’s land cannot
make the owner of the land to be liable in any claim by the plaintiff.
This includes weeds, grass and trees of different types.
(b) Water which naturally flows as a river or which came as a result of
rainfall. See Nicholls v. Marshall. Rocks which naturally exist on the
defendant’s land.
(c) Rocks which naturally exist on the defendant’s land
(d) Rats, snakes, insects (snakes and rats can also be non-natural
users).
In the case of CROWHURST v. AMERSHAM BURIAL BOARD (1878) 4

Exch. D. 5 where the defendant Board planted yew trees on the boundary of
its land. The branches of the yew trees protruded into the land occupied by
the plaintiff. The plaintiff’s horse ate some of the leaves and was poisoned
and died. The court held that:
The defendant Board was liable for bringing the poisonous yew trees onto its land. It
was a non-natural use of the land to plant such poisonous trees, and the branches of
the trees had ‘escaped” by protruding into the plaintiff’s land where he kept domestic
animals.
b) There was an escape of the “non-natural user”
“Escape” was defined in the case of READ v. LYONS (1947) AC 156

by Lord Simonds thus:
Escape, for the purpose of applying the proposition in Ryland’s v. Fletcher

means escape from a place where the defendant has occupation or control
over land, to a place which is outside his occupation or control .
61
In this case, it was held that there was no escape, while in the
case of POINTING v. NOAKES (1894) 2 QB, a poisonous tree was
on the defendant’s land and its branches never extended over the
boundary. But the plaintiff’s horse reached over the boundary and
ate the leaves and died. The court held that the defendant was not
liable as there was no escape under the Rule in Ryland’s v.
Fletcher.
c) Claimant must suffer damage
The plaintiff must prove that the thing that escaped caused
damage to him or his property. As a general rule, an escape under
the rule Ryland’s v. Fletcher is not actionable per se. It is
actionable only when the plaintiff proves that the escape caused
him damage. Damage here may be personal injuries, damage to
land, house, other properties and fittings and domestic animals.
See Cambridge Water Works Co v. Eastern Leather (1994) 1 ALL E.
R. 53; Transco Corp. v. South Port (2004) 2 AC 1
1) Can the defendant be sued?

1. Controller/owner of the thing that escapes (even if just a licensee)
2. Occupier of land when the thing escaped
3. Landlord not in occupation of land when the thing escaped but who
has authorised the accumulation
2) Can the claimant sue?

 Must have proprietary interest in land or ex facto exclusive
possession
 Liability only where there is a “non-natural” use of land –
Ryland’s v. Fletcher (1868)
a) “Natural use” is judged by contemporary standards
b) Example cases:
 Ryland’s v. Fletcher – a water reservoir which flooded the

claimant’s mine was non natural
 Cambridge Water v. Eastern Countries Leather Plc (1994) 2 AC
264- storage of large no. of chemicals is a classic case of non-
natural use
 Transco v. Stockport (2004) – provision of water to a flat is a
natural use (no liability when pipes burst requiring the claimant’s
gas main to be repaired)
3) Accumulation
62
 Only applies to things artificially brought or kept upon the
defendant’s land
 No liability for things naturally on the land (such as rocks falling
from a natural outcrop)
4) Escape
 Escape from a place where the defendant has occupation or control
over land to a place which is outside his occupation and control
5) Remoteness
 Liability only arises if the defendant knows or ought to have
foreseen that the thing stored might cause damaged if in escapes;
it is irrelevant how unlikely such an escape might be – Cambridge
Water
 The escape itself need not be likely
FUNDAMENTAL DIFFERENCES BETWEEN NUISANCE AND THE RULE

IN RYLANDS V. FLETCHER
The Rule in Ryland’s v. Fletcher has some similarities with the legal principle
of nuisance and if care is not taken, one can be mistaken for the other. It is
possible that the same facts may give rise to liability under the torts in
nuisance and the Rule in Ryland’s v. Fletcher. However, there are some
fundamental differences as follows:
1. In Ryland’s v. Fletcher liability is confined to the accumulation of
physical objects which can escape and cause damage to the plaintiff
while nuisance is an interference with someone’s enjoyment of his
property caused by intangible things such as noise and smell.
Generally the position in Ryland’s v. Fletcher is undergoing some
changes to the extent that i t is now accepted that this is not absolute
basis of distinction but in extra hazardous activities. See Transco Corp.
v. South Port (supra).
2. In Ryland’s v. Fletcher, there must be accumulation of things which are
physical in nature such as plants, liquid, gas, or rocks but in nuisance,
there is no requirement for accumulation.
3. In Ryland’s v. Fletcher, there must be an escape of a non-natural user
accumulated from the defendant’s land to a place outside the
defendants land but in nuisance, there is no requirement of escape
because that is not necessary.
4. A plaintiff who is not an occupier of the adjoining land may not sue in
Ryland’s v. Fletcher but in nuisance such a person could bring a suit in
private nuisance.
5. Liability is confined only to non-natural user under Ryland’s v. Fletcher
but in nuisance liability is not confined only to non-natural user.
63
4. Exercise
1. In a case of claim for damages, what should the plaintiff prove for
him to get relief from the court under the Rule in Ryland’s V.
Fletcher?
2. In your own words, define strict liability under the rule in Ryland’s
v. Fletcher?
3. Conclusion
Looking at the tort in Ryland’s v. Fletcher, it has been shown in this unit that
the rule is not found in the statute but in common law. It is a rule of law
based on strict liability. This is based on an action of the defendant that
caused damage to the plaintiff. The rule in Ryland’s v. Fletcher has filled the
lacuna in law for redress which was not obtainable in nuisance and
negligence. The beauty of this rule in Ryland’s v. Fletcher is that public and
statutory authorities are not allowed to shield themselves from liability
where their legitimate activities caused damage to others. This unit has
exposed you to the understanding of strict liability offences especially as
practiced under the rule in Ryland’s v. Fletcher. It has opened your
understanding of the reasoning on the scope of the rule in Ryland’s v.
Fletcher, the difference(s) between the Ryland’s v. Fletcher and other
important topics such as negligence. The unit has discussed the rule and
cited cases where it was applied in Zambia.
Unit Twelve
Defences to all the torts
1. Introduction
2. Objectives
3. Defences to False Imprisonment
Reasonable condition
Lawful imprisonment/arrest/detention
64
4. Defences in Ryland’s v. Fletcher cases (Blackburn J)
4.1 Claimant’s consent

Claimant expressly or impliedly consented to the presence of the
source of danger and no negligence on the part of the defendant.
Not liable.
4.2 Unforeseeable act of a stranger

Perry v Kendricks Transport – the defendant parked a coach in
their vehicle park; petrol tank had been drained but an unknown
person had removed the cap; a boy of 10 negligently threw a
lighted math into the tank and it exploded causing the plaintiff to
be burned. Defendant held not liable as it was an act of a
stranger over whom they had no control
4.3 Escape caused by a force of nature so unexpected

that it couldn’t have been reasonably foreseen
4.4 Claimant’s willful or reckless behaviour increased

the probability of injury- no liability OR reduction for
contributory negligence.
5. Defences to nuisance claims
5.1 Prescription (Acquiescence)
5.2 Act of God
5.3 Necessity
5.4 Statutory authority
6. Defences in negligence
Readings:
65
6.1 Contributory negligence
See section 10 of the Law Reform (Miscellaneous Provisions) Act, Cap
74 of the laws of Zambia (replicated from the United Kingdom Law
Reform (Contributory Negligence) Act 1945 s.1(1): Contributory
negligence is not a complete defence but substantially decreases
damages where any person suffers damage as a result (a) partly of his
own fault and (b) partly of the fault of another person(s)- the claim
shall not be defeated by reason of the claimant being at fault but the
damages will be reduced to the extent the court feels just and
equitable having regard to the claimant’s share in the responsibility for
the damage. “Fault” in the United Kingdom has been defined as
including negligence, breach of statutory duty OR other act or omission
that gives rise to liability in tort, or would, apart from the Act, give rise
to the defence of contributory negligence.
Jones v. Livox Quarries (1952) 2 QB 608; Froom v. Butcher

(1976) QB 286;
Malawo v. Bulk Carriers of Zambia Limited SCZ (1978) ZR 185;
Stapley v Gypsum Mines Ltd (1953) AC 660; Fitzgerald v Lane
(1989) AC 328
6.2 Consent as a general defence to tortious liability

(Volenti non fit injuria)
Freeman v Home Office (1984)
Nettleship v Weston (1971) 3 All ER 581
ICI v Shatwell (1965)
‘Physical interference with another person’s body is always lawful for the
purposes of tort law if he consents to it; though in certain limited
circumstances the public interest may require that his consent is not
capable of rendering the act lawful for the purposes of the criminal law.’
 Validity of consent
If A has touched B in some way, B will obviously not have validly
consented to A’s touching her in the way he did if B did not agree that
A could touch her in the way he did. So suppose B went to hospital for
a tonsillectomy but her surgeon – due to an administrative mix-up –
performed an appendectomy instead. In such a case, it could not be
66
said that B validly consented to her surgeon’s touching her in the way
he did. Even if B formally agreed that A could touch her in the way he
did, it still cannot be said that she validly consented to A’s touching her
in that way, if, when she agreed, she did not really understand what A
was proposing to do.
 Vitiation of consent
An apparently valid consent will be vitiated, and rendered invalid, if it
was procured through illegitimate pressure or through the illegitimate
exercise of some influence over the person giving their consent.
 Withdrawal of consent
A continuing interference with someone’s person may be initially
consented to, but what happens if consent is subsequently withdrawn?
The general rule is that withdrawal of consent will render any further
interference unlawful. There is an important exception to this general
rule, which applies where it would not be reasonable to expect the
initially consented-to interference to stop immediately once consent
has been withdrawn. In such a case, once consent is withdrawn, the
defendant will be given a reasonable period of time to bring the
interference to an end, and will only be held liable for continuing the
interference if it carries on beyond that period of time. H e r d v
Weardale Steel, Coal and Coke Company Ltd (1915).
 Possibility of consent
Some people are incapable of giving a valid consent to having their
person interfered with in a given way.
 Consent on behalf of others

 Consent to risks
Blake v Galloway (2004), the claimant was a 15 year old who joined a
group of similarly aged children who were playfully throwing twigs and
bits of bark at each other. The claimant threw a bit of bark at the
defendant that hit the defendant in the chest. The defendant threw the
bark back in the direction of the claimant. Unfortunately, the bark hit the
claimant in the face, injuring one of his eyes. The claimant sued for
damages for the injury in negligence and battery. His claim was
dismissed. While he had not consented to being hit in the eye by the bark
thrown by the defendant, he had consented to the risk of being hit in the
eye by the sort of playful throwing of the bark that the defendant had
67
engaged in. Of course, if the defendant had intentionally aimed the bark
at the claimant’s eye or had thrown it at him at very high velocity, not
caring where it hit the claimant, it could not be said that the claimant
consented to the risk of being hit by a piece of bark that was thrown like
that – such a throw would have been well outside the expectations of the
participants in the game. But as the defendants’ throw was purely playful
and not reckless, the claimant had consented to the risk of being hit in
the eye by that kind of throw.
Consent
Can be express or implied, for example in sport and medical treatment:
Sport - Condon v Basi (1985) – a competitor in sport consents to conduct
which may fall outside the rules but which is in the spirit of that particular
sport.
Medical - Chatterton v Gerson (1981) – patient gives VALID consent
once he’s been informed in broad terms of the nature of the intended
procedure.
Chester v Afshar (2004) – failure to disclose risks of procedure does NOT
invalidate consent. No claim in trespass, maybe in Negligence
6.3 Defence of ‘Self-defence’ in relation to trespass to the

person
Cockroft v Smith – The tortfeasor must establish:
- Force was used in self-defence and not retaliation
- Force must be reasonable
- Fo rce m ust b e p ro p o rtio nate to that used /threatened by
‘victim’(Plaintiff)
6.4 Actions in defence of property

The defendant may take reasonable steps to defend his property. This
includes reasonable steps to eject trespasser- Green v Goddard
6.5 Defence of necessity

F v West Berkshire Health Authority (1989)
Two situations where defence of necessity could justify giving

medical treatment without consent:
1. An emergency where patient unconscious
68
2. A state of affairs (temporary or permanent) rendering patient
incapable of giving consent - IF treatment is in the best
interests of patient
7. Exercise
8. Conclusion
69
Unit Thirteen
Remedies to all the torts
1. Introduction
2. Objectives
3. General Remedies
3.1 Damages
3.2 Injunctions
4. Remedies to nuisance claims:
4.1 Injunction to prevent future damages
4.2 Damages to compensate for past damage
4.3 Abatement
5. Remedies for defamation:
5.1 Injunction
5.2 Damages
Times Newspapers v. Wonani (1983) ZR 131
John v. MGM (1997) QB 586
Phiri v. Programme Manager Radio Maria- Chipata, Zambia
(unreported High Court)
6. Remedies for trespass to the person

The victim of a trespass to the person will normally be able sue for
compensation for any actionable losses that the tort caused her to suffer.
Aggravated damages and exemplary (or punitive) damages may also be
available if the tortfeasor acted in a sufficiently outrageous way in
committing the tort. Even if the victim has suffered no loss as a result of
the trespass tort being committed, he or she will still be able to sue for
nominal damages to mark the fact that her rights have been violated.
70
There is an increasing trend in the courts to think that the mere violation
of a right should attract a more substantial award than merely nominal
damages, and that someone whose rights have been violated should be
able to sue.(Some cases cited always indicate award of damages and
what kind of damages).
7. Exercise
8. Conclusion
71

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THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE LEARNING

LPR 2930: LAW OF TORTS

All rights reserved. This publication is protected by copyright and

Inquiries concerning reproduction or rights and requests for additional

Institute of Distance Education

The University of Zambia

P.O. Box 32379

Tel: 0211 290719

Fax: 0211 253952

The nature of the law of torts........................................................................................................ 13

4. Purpose of the law of torts.............................................................................................. 14

5. Scope of interests protected in the law of torts.......................................................14

6. Tort distinguished from crime and contract............................................................... 14

7. Basic principles of tortious liability............................................................................... 14

8. The basis of tortious liability (Donoghue v. Stevenson).......................................15

9. Essential elements of Tort:.................................................................................................... 16

10. Examples of Torts:.................................................................................................................. 16

Trespass to the person...................................................................................................................... 19

Malicious Prosecution and abuse of process............................................................................. 24

3. Elements of Malicious Prosecution................................................................................ 25

4. Elements of Abuse of Process.........................................................................................29

3. Meaning of ‘trespass to land’.......................................................................................... 33

3.1 Duty of care...........................................................................................................................35

Protection of Reputation (Defamation)....................................................................................... 42

Nuisance (Public and private).........................................................................................................46

5. Factors to consider in Nuisance..................................................................................... 48

5.1 Was there interference?................................................................................................ 48

3. Rationale for occupier’s liability:....................................................................................57

3. What is ‘vicarious liability’?............................................................................................. 58

4. Is the person committing the tort the defendant’s employee/independent

Strict liability (The Rule in Ryland’s v Fletcher)....................................................................... 59

3. Elements of strict liability................................................................................................. 60

Unit Twelve................................................................................................ Error! Bookmark not defined.

Economic Torts......................................................................................... Error! Bookmark not defined.

1. Introduction...............................................................................Error! Bookmark not defined.

2. Objectives.................................................................................. Error! Bookmark not defined.

3. Exercise.......................................................................................Error! Bookmark not defined.

4. Conclusion..................................................................................Error! Bookmark not defined.

4. Defences in Ryland’s v. Fletcher cases (Blackburn J)............................................ 65

4.1 Claimant’s consent.............................................................................................................. 65

5.1 Prescription (Acquiescence)............................................................................................ 66

6.1 Contributory negligence....................................................................................................66

4.1 Injunction to prevent future damages........................................................................ 70

1. D e m o n s t r a t e familiarity with the basic

Occupier’s Liability Act, Cap 70 of the laws of Zambia

Public Health Act, Cap 295 of the laws of Zambia

Factories Act, Cap 441 of the laws of Zambia

Defamation Act, Cap 68 of the laws of Zambia

Misrepresentation Act, C69 of the laws of Zambia

Law Reform (Limitation of Actions) Act, Cap 72 of the laws of Zambia

Law Reform (Miscellaneous Provisions) Act, Cap 74

Mvunga and Ng’ambi on Torts, UNZA Press, Lusaka, 2010

C.A. Wright (1967), Cases on the Law of Torts, London, Butterworth’s

2. Establish a regular study/learning schedule.

3. Determine what time is best for you to study.

6. Ask someone to proofread your work before you submit it.

8. If you do not understand something ask your local learning centre or