Negligence

Negligence has been described as the most important and dynamic of all torts. Its
emergence as a separate tort coincided with the industrial revolution in England and the
advent of machinery, railways and motor vehicles and to this day it has retained its
function as a principal means of compensating victims of accident.

In the case of Blyth v. Birmingham Water Works Co., negligence was described by
Baron Alderson as “The omission to do something which a reasonable man…would do or
something which a reasonable and prudent man would not do.”

Eve J. in Hudson v. Viney, described negligence as an attitude of mental indifference to

obvious risk. Lord Wright has also observed that “…negligence properly connotes the
complex concept of duty, breach and damage thereby suffered by the person to whom the
duty is owed.” Negligence as a tort, therefore, is a breach of a legal duty to take care
which results in damage by the defendant to the plaintiff. Thus, a plaintiff who alleges
negligence must prove three factors –

(1) That the defendant owed him (the plaintiff) a duty of care.
(2) That the defendant breached this duty.
(3) That the plaintiff suffered damage as a result of the breach.

The first consideration in any negligence action is whether the defendant owed a duty of
care to the plaintiff. As to whether a duty of care exists is a question of law for the judges
to decide. The courts have utilized different criteria in deciding whether a duty of care
exists or not. For example, by virtue of a contract or by statute.

However, the most basic of these criteria seized upon by the courts to determine the
existence of a duty is that of reasonable foreseeability. This was formulated in the locus
classicus Donoghue v. Stevenson, (1932); the plaintiff went to a café with a friend who
ordered drinks. When the drinks arrived, the plaintiff drank some of the contents and she
alleged that when her friend poured the remainder of the drink into her glass, it contained
remnants of a decomposed snail. As a result, she became seriously ill. She could not sue
the retailer as she had no contract with them, nor could she possibly claim he was
negligent as the bottle was opaque and the snail could be seen. Instead she sued the
manufacturer of the drink in negligence. The manufacturer raised the defence of privity
and claimed that since the plaintiff could not sue them in contract, she could not sue them
in tort either. The HL position on the matter was that manufacturers of products which
are sold in such a form that they are likely to reach the ultimate consumer in the form
they left the manufacturer with no possibility of examination, owe a duty to the consumer
to take reasonable care to prevent injury. Thus, it was held that there could be a remedy
in tort as a manufacturer had a duty of care in negligence to the ultimate consumer of his
product and the fact that the defendant was liable to the owners of the café in contract did
not prevent him from being liable to the plaintiff in tort.

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It was in delivering his judgment in this celebrated case that Lord Atkin laid down the
general rule that a duty of care is owed to one’s neighbor. His lordship stated that “you
must take reasonable care to avoid acts or omissions which you can reasonably foresee
will be likely to injure your neighbor.” Lord Atkin then asked the rhetorical question,
“Who then in law is my neighbor?” And he gave the answer. “Persons who are so closely
and directly affected by my act that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions which are called
in question.” This is the Neighborhood Principle.

Simply translated, what these immortal words require is that before you engage in any
course of conduct or refrain from acting, you must ask yourself how your act or omission
may affect your neighbor. If your act or omission will injure your neighbor, then you
must refrain from so acting or face the consequences in tort. It is important to note that
the duty of care is established by putting in the defendant’s place a hypothetical
reasonable man and deciding whether a reasonable man would have foreseen the
likelihood or probability of injury and not its mere possibility. The test is, therefore,
objective and not subjective and the effect of its application is that a person is not liable
for every injury which results from carelessness; there must be a duty.

It is crucial at this stage to note that reasonable foreseeability is the basic criteria for the
existence of a duty. However absolute, it is qualified by one important factor, “policy”.
Thus, this statement of general principle needs a modification. The court will always find
that a duty of care exists whenever it is reasonably foreseeable that certain acts or
omissions will result in injury to a neighbor unless policy consideration dictates
otherwise.

Winfield & Jolowicz observed that “the finding that loss of any kind to the plaintiff was
reasonably foreseeable creates a presumption of law whereby the court would be
disposed to decide in favor of the existence of a duty in the absence of convincing
arguments to the contrary.”

Lord Atkins’s formula is not a mechanical one by which novel cases can be decided on
the basis of forseeability. But given this finding, it is a pointer towards the decision in the
plaintiff’s favor.

Policy is, thus, the counterpoint to reasonable forseeability in determining the issue as to
whether a duty of care exists in circumstances under consideration. Policy in this sense
means no more than that the judge must base his decision as to whether a duty of care
exists against the background of the implications of his decision on the society as a
whole. It is due to considerations of policy that it was held by the HL that a barrister
owes no duty of care to his client so far as his work in the actual conduct of litigation is
concerned. See the case of Dorsett Yacht Co. Ltd v. The Home Office; this was an
action by owners of a yacht which was damaged by Borstall boys who escaped as a result
of alleged negligence on the part of three officers in charge of them. In holding that the
Home Office owed a duty of care to the owners of the yacht, Lord Reid said,

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“Donoghue v. Stevenson may be regarded as a milestone…it will require qualification in
new circumstances but I think that the time has come that we can and should say that it
ought to apply unless there is some justification for its exclusion.”

Lord Denning, in the same case, said, “It is I think, at bottom, a matter of public policy
which we as judges solve. This task of duty or no duty is simply a way of limiting the
range and liability for negligence.”

Furthermore along these lines, came the case of Anns v. London Borough of Merton;
the plaintiffs, lessees of flats which they claimed suffered structural damage as a result of
being built on foundations of insufficient depth, sued the local authority on the basis it
had negligently failed to inspect the foundations. It was held that the local authority had a
duty of care to the plaintiffs and Lord Wilberforce made general comments on the duty of
care. He said, “The position has now been reached that in order to establish that a duty of
care arises in a particular situation, it’s not necessary to bring the fact of that situation
within those previous situations in which a duty has been held to exist. He then proceeded
to extend the neighborhood principle based on reasonable foresight and introduced the
Two Stage Test, by asking two questions –

(1) Was the harm foreseeable and thereby bringing the plaintiff within the neighborhood
principle?
(2) Was there any valid policy reason to deny the existence of a duty of care in this case?

The law developed further as in the case of Yeun Kun Yeu v. Att.-Gen. Hong Kong;
The Privy Council pointed out the danger in assuming that the comments by Lord
Wilberforce in the Anns case led to a rule that objective foreseability on its own
automatically leads to a duty of care and that the defendant with the objective foresight is
therefore liable unless there are reasons e.g. public policy, why he should not be so liable.
Lord Keith, in this case, was of the opinion that “In the view of the direction in which the
law has since been developing, lordships considered that for the future it should be
recognized that the two stage test in Anns is not to be regarded as in all circumstances a
suitable guide to the existence of a duty of care.”
The general opinion was that the position in Anns (the two stage test) left the judges with
powers that were far too wide. Thus, in Caparo Industries plc v. Dickman; the HL
established a Triple Stage Test for establishing a duty of care which in effect overruled
the two stage test. Thus, the present position for establishing a duty of care is that the
following must be considered –

(1) The harm must have been reasonably foreseeable.

(2) There must have been a relationship of proximity between the parties.
(3) In all circumstances of the care, it must be fair, just and reasonable to impose a duty
of care.

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(1) Foresight – In Donoghue v. Stevenson supra, the notion of foresight of the plaintiff
as a member of a group who is likely to suffer harm as a result of the defendant’s act or
omission is notionally of importance as a deciding factor in liability. However, although
it is possible to find cases in which it is argued purely on the question of foresight, that a
duty of care exists, it is too simplistic to suggest that foresight or ‘reasonable
contemplation of harm’ alone is the test for duty of care.

(2) Proximity – The question to be asked is whether there is a relation of proximity

between the parties. Proximity, in this sense, refers to the relationship between the
plaintiff and the defendant as opposed to nearness in space and time (geographical
proximity).

(3) What is Fair, Just and Reasonable – The third consideration in the three stage test
is whether, in all the circumstances, it will be fair, just and reasonable that the law should
impose a duty. Considerations of what is fair and reasonable are in reality co-extensively
‘policy’ argument but such considerations should now only become relevant after the
questions of foresight and proximity have been settled. Policy was defined by Professor
Winfield as follows… “The use of the word ‘Policy’ indicates no more than that the court
must decide not simply whether there is or is not a duty, but whether there should not be
one, taking into account both the established framework of the law, also taking into
account what the implication that the decisions, one way or the other, may have upon the
operation of law in our society.”

In essence, what Winfield means here is that judges can and do make up the law as they
go along in response to changing social condition. Although this is an oversimplification
of the above statement, one only has to examine a number of true cases in tort which deal
with the scope of the duty principle to observe that many of the decisions have less to do
with the logical application of the existing legal rules, than with the nature of social or
economic pragmatism.

Breach of Duty

In deciding whether the defendant is in breach of duty owed the plaintiff, the court will
consider whether a reasonable man placed in the defendant’s position would have acted
as the defendant did. Thus, the test for deciding this is laid down in the often cited dictum
of Anderson B. in Blyth v. Birmingham Waterworks Co.; “Negligence is the omission
to do something which a reasonable man guided upon those conditions which ordinarily
regulate the conduct of human affairs would do or doing something which a reasonable
and prudent man would not do.” In determining what a reasonable man would or would
not have done in the circumstances, and in evaluating the standard of care expected of the
defendant, the courts may consider what may be called the “Risk Factor”. This has four
elements –

(1) The Likelihood of Injury – A duty exists to guard against reasonably foreseeable risk.
Thus, the more the likelihood of injury, the greater the precautions. In the words of Lord
Wright, “the degree of care which the duty involves must be proportioned to the degree

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of risk involved if the duty of care should be fulfilled.” Thus, it is reasonable to assess the
risk involved in a particular situation and to consider whether precautions are necessary
bearing in mind the magnitude of the likelihood of harm. In Bolton v. Stone; the plaintiff
was standing on a quiet road when she was struck by a cricket ball which had been driven
from the defendant’s cricket ground. It was rare for balls to be knocked out of the ground;
only about six times in 30 years had balls been hit out and no injury had ever been done.
Even though the risk was foreseeable, the chance that it would occur was very small. The
HL held that in the circumstances, it was reasonable to ignore such a small risk. Contrast
this with Miller v. Jackson; where it was held that the risk of harm was so great that the
defendants were liable where cricket balls were hit out of their grounds 8 or 9 times a
season and on numerous occasions had damaged the plaintiff’s property.

(2) The Seriousness of the Injury that is Risked – The gravity of the consequences if an
accident were to occur must also be taken into account. Thus, in the case of
Paris v. Stepney Borough Council; the defendant employed the plaintiff as a mechanic
in their maintenance department. Although they knew that he had only one good eye,
they did not provide him with goggles for his work and while he was attempting to
remove a part from a vehicle, a piece of metal flew into his good eye and he was blinded.
It was held that the duty of the employers was owed to each particular employee and they
were negligent in failing to provide goggles to this particular workman. In this case, the
risk to a two eyed workman was the loss of one eye but the plaintiff here risked the
greater injury of total blindness.

(3) The Cost and Practicability of Measures to avoid the Harm – Generally speaking, the
risk has to be balanced against the measure necessary to eliminate it. Thus, it may be
reasonable to own a risk if the precautions needed to eliminate the risk are very expensive
or extremely difficult. Thus, in Latimer v. A.E.C. Ltd; Lord Denning said “In every case
of foreseeable risk, it is a matter of balancing risk against measure necessary to eliminate
it.” In this case, the owners of a factory which had been flooded did all that was possible
to cover slippery areas with saw dust to make the area safe. However, a workman slipped
on the floor and sustained an injury. The court held that the occupiers had not been
negligent. The only other possible step they could have taken was to close the factory and
the risk of harm created by the slippery floor was not in the opinion of the court so great
to require such a costly and drastic step.
In the case of Smith v. Littlewoods Ltd; the defendants were the owners of a cinema
which was left unoccupied and unguarded during the time it was undergoing
redevelopment. When youths entered the premises and deliberately started a fire which
spread to and seriously damaged the plaintiff’s property next door, it was alleged that the
defendants should have prevented access to the cinema. The defendants were not aware
of the presence of the vandals and had no reason to assume a significant threat. It was
held that the defendants were not liable. Short of posting a 24 hour guard over the
premises, they would not have been in position to prevent the vandals. To require such a
measure would have imposed an intolerable burden on the defendant.

(4) The Importance or Utility of the Defendant’s Activity – The reasonable person
assesses the utility of the conduct which is being carried out e.g. risky measure might be

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necessary in order to save lives. Thus, the seriousness of the risk created by the
defendant’s activity must be weighed against the importance of the utility of such an
activity and where the defendant’s conduct has great social value, he may be justified in
exposing others to risk which would otherwise not be justifiable. Therefore, the driver of
an ambulance or fire engine answering to an emergency call is entitled to proceed at a
speed that is faster than usual and takes on traffic risk which would be unjustifiable for an
ordinary motorist. In the case of Watt v. Hertfordshire County Council; the plaintiff
was a fireman called to an emergency where a woman was trapped under a lorry. A
heavy lifting jack was urgently required but since the vehicle designed to carry it was not
available, it was loaded onto a lorry which was not equipped to carry it. On the way, the
lorry had to break suddenly and the plaintiff was injured when the jack slipped. It was
held that the fire authorities had not been negligent. The risk had to be balanced against
the end to be achieved and saving life or limb, justified by taking considerable risk. Lord
Denning, in commenting on this matter, took the view that if the accident had happened
in a commercial venture without any emergency, the plaintiff would have succeeded as
“The end to make a profit is very different from the human end to save life or limb.”

The Reasonable Man

(A) Intelligence – As a matter of law, the standard of care required of the defendant is
that of the hypothetical reasonable man and whilst no man is expected to attain
perfection, that standard is objective in the sense that it generally takes no account of the
idiosyncrasies of the person whose conduct is in question. Thus, the courts will measure a
man’s actions against the conduct expected of a man of normal intelligence and the
defendant will be excused for having acted “to the best of his own judgment” if his best is
below that to be expected of a man of ordinary intelligence. It is therefore no defence that
the defendant in question had an unusual slow reaction or a lower than average
intelligence. On the other hand, a person of higher than average intelligence or possessing
unusually quick reactions will not be judged by his own high standards and will not be
liable for having failed to use those exceptional qualities.

(B) Knowledge – First and foremost, a man is expected to have a degree of common
sense or knowledge of everyday things which a normal adult would possess. For
example, a reasonable person would know that petrol is highly inflammable, that gas is
poisonous when inhaled etc. Furthermore, where the defendant holds a particular
position, he’ll be expected to show the degree of knowledge normally expected of a
person in that position. Thus, in the case of The Wagon Mound No.2; the Privy Council
took the view that ship owners were liable for a fire caused by discharging oil from their
ship into Sydney Harbor because the chief engineer ought to have known that there was a
real risk of the oil catching fire. Secondly, with regards to facts and circumstances
surrounding him, the defendant is expected to observe what a reasonable man would have
noticed. Thus, the occupier of a premises will be negligent if he fails to notice that the
stairs are in a dangerous state of disrepair or that the septic tank in the garden has become
dangerously exposed so that lawful visitors are put at risk. Moreover, a reasonable
occupier is expected to employ experts to check those installations which he cannot
check himself as a result of lack of technical knowledge.

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A related point is also where the defendant has actual knowledge of particular
circumstances, the standard of care required by him may be increased. As was the
position in the case of Paris v. Stepney Borough Council supra, where it was seen that a
higher measure of care was owed by the employer towards a worker who, to the
knowledge of the employer, had one good eye. Similarly, a higher standard of care will
be owed towards young children, elderly persons and pregnant women due to their
special susceptibility to injury.

(C) Skill – A person who holds himself out as having a certain skill, either in relation to a
problem generally (a driver of a car) or in relation to a person to whom he is performing a
service (doctor, lawyer) will be expected to show the average amount of competence
normally possessed by persons doing that kind of work and he’ll be liable in negligence if
he falls short of such standard. Thus, a surgeon performing a surgical procedure is
expected to display the amount of care and skill usually expected of a normal and
competent member of his profession. Whereas a jeweler who pierces ears is only
expected to exercise the skill of a normal jeweler doing such work and not that of the
surgeon.
Thus, in the case of Bolam v. Friern Hospital Management Committee; the plaintiff
agreed to undergo electro convulsive therapy during which he suffered a fracture of his
pelvis. The issue was whether the doctor was negligent in failing to issue a relaxant drug
before the treatment or failing to provide means of restraint during the procedure.
Evidence was given of practices of various doctors who used relaxant drugs before
E.C.T. treatment. One body of medical opinion favored use of relaxant drugs but another
body of opinion took the view that they should not be used because of the risk of
fractures. It was held that the defendant is not negligent if he acts in accordance with
what was accepted as proper at the time by a responsible body of professional opinion
skilled in the particular treatment. McNair J., in this case, went further to state that
“where you get the situation which involves the use of some special skill or competence,
then the test as to whether there has been negligence or not is not the test of the man on
the Clapham omnibus because he has not got this special skill. The test is the standard of
the ordinary skilled man exercising and professing to have that special skill. A man need
not possess the highest expert skill. It is well established law that it is sufficient if he
exercises the ordinary skill of an ordinary competent man exercising that particular act.”

The law has, however, taken a surprising position when pertaining to the skill of learner
drivers. It has been held that a learner driver must comply with the same objective and
impersonal standard as any other driver. Thus, in the case of Nettleship v. Weston; the
plaintiff was teaching the defendant to drive. During the course of the defendant’s third
lesson, she panicked and steered the car into a lamp post and the plaintiff suffered a
broken knee. At first instance, the trial judge decided that the defendant had not been at
fault because she had been doing her best to control the car. In delivering its judgment,
the CA disagreed with the trial judge and held that the standard of care required of a
learner driver is the same as that of the ordinary qualified driver. The defendant’s driving
had fallen below this standard and it was irrelevant that this was because of her
inexperience. Lord Denning said “A learner driver may be doing his best but his
incompetence is not good enough.” The position of the CA in the matter may perhaps be

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explained on the ground that a car is a potentially lethal weapon and public policy
requires the strictest possible care to be maintained, even by learners.

Proof of Negligence

Res Ipsa Loquitur (The thing speaks for itself)

In most cases, the plaintiff has a task of adducing evidence and proving the case alleged
against the defendant on a balance of probabilities. In order to discharge this burden of
proof on himself, it is usually necessary for the plaintiff to prove specific acts of omission
on the part of the defendant which will qualify as negligent conduct. There are, however,
many cases where although the plaintiff can prove that an accident happens, he’s unable
to show that it happened. In such cases, the plaintiff’s action will almost certainly fail.
Sometimes, however, the circumstances are such that the court will be prepared to draw
an inference of negligence against the defendant without hearing detailed evidence of
what he did or did not do. In such a situation, the doctrine of Res Ipsa Loquitur is applied.
Translated, it means “the facts speak for themselves” or “the situation speaks for itself”.
The most well-known definition of this doctrine was laid down in the case of
Scott v. London and St. Katherine Dock Co.; the plaintiff, who was standing near the
doorway of the defendant’s warehouse, was struck when several bags of sugar fell from a
hoist. The defendant’s employees had been using a hoist nearby to load sugar. The
plaintiff sued the defendant in negligence. In delivering his judgment, Erle C.J. said
“Where the thing is shown to be under the management of the defendant and his servants,
and the accident is such as in the ordinary course of things does not happen if those who
have the management use proper care, it affords reasonable evidence in the absence of
explanation by the defendants that the accident arose from want of care.”
Thus, the crux of the matter is that the mere fact of the accident having happened should
tell its own story and raise the inference of negligence so as to establish a prima facie
case against the defendant; the story must be clear and unambiguous.

Requirements for the Operation of the Doctrine

(1) The defendant must have had sole control of the thing that caused the damage.

(2) The incident could not have occurred without lack of proper care.

(3) There is no other direct evidence of what caused the accident.

(1) Control – It is a question of fact in each case as to whether or not the thing causing
the accident was under the defendant’s control. The most common type of case in which
this doctrine is evoked is that of negligent driving. The driver of a motor vehicle will be
presumed to have sufficient control of his vehicle and the surrounding circumstances to
attract the doctrine. In the case of Ellor v. Selfridge Co. Ltd; where a car ran into the
pavement and hit a pedestrian in the back, it was held that there was evidence of
negligence and the Res Ipsa Loquitur doctrine was applied.

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In the case of Easson v. North Eastern Railway Co.; the plaintiff, a 4 year old boy, fell
through the door of a corridor train during the journey from Edinburgh to London. It was
held that the defendant did not have sufficient control over the door for the doctrine of
Res Ipsa Loquitur to apply. It was impossible to say that the doors of an express train
were continuously under the control of the railway company as passengers could have
interfered with the door.
However, in the case of Gee v. Metropolitan Railway; the plaintiff fell from a local
train when the door flew open a few minutes after it had left the station. It was held to be
negligent on the part of the railway company.
It should be noted, however, that where actually causing the damage is under the control
of one of several servants of the defendant and the plaintiff is unable to identify which
particular servant had control, he may still invoke the doctrine so as to make the
defendant vicariously liable.

(2) Presumed Negligence – Negligence will be presumed where the common experience
of mankind shows that the type of mishap which occurred would not normally have
happened where the defendant had not been careless. E.g. Res Ipsa Loquitur would apply
where a bag of sugar (Scott v. London and St. Katherine Dock Co.) fell from the
upstairs window of a building onto passers bye. See the case of Byrne v. Boadle or in the
case where a swab was left inside a patient’s abdomen; Mahorn v. Osbourne.

(3) Absence of Explanation – The third requirement for the application of the maxim is
that there must be no evidence of the actual cause of the accident. Thus, in the case of
Barkway v. South Wales Transport Co. Ltd; the plaintiff was traveling as a passenger
in the defendant’s bus. He was killed when a tire burst and the bus went over a road and
over an embankment. It was established that the cause of the accident was a defect of one
of the tires which might have been discovered beforehand. It was held that as the cause of
the accident was known, Res Ipsa Loquitur did not apply. (However, the defendant’s
negligence was established on the facts of the case.)

Damage Caused by the Breach

Having established that the defendant owed a duty of care to the plaintiff and that there’s
been a breach, the plaintiff must prove that he had suffered damage for which the
defendant was liable in law. I.e. Legal damage, not factual damage. It must be pointed out
that negligence being derived from the old action on the case is only actionable on actual
proof of damage. I.e. Negligence is not actionable per se.
There are two (2) aspects of this requirement. Namely, Causation in Fact & Remoteness
of Damage.

(1) Causation in Fact

In order to prove damage, the plaintiff must first show that the harm suffered was, as a
matter of fact, caused by the defendant’s breach of duty. This element is known as

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causation in fact and “if but for” the defendant’s negligent conduct, the damage would
not have happened, then the negligence is the cause of the damage. This is called the But
For Test.

The operation of the but for test is well illustrated in the case of
Barnett v. Chelsea & Kensington Hospital Management Committee; the plaintiff’s
husband, after drinking some tea, experienced persistent vomiting for 3 hours, together
with two other men. The plaintiff went to the defendant’s hospital complaining of the
vomiting. The nurse on duty consulted the casualty doctor by telephone and was
instructed by him to tell the three men to go home to bed and call their own doctors. Soon
after, the plaintiff’s husband died of poisoning by arsenic. It was later discovered that the
arsenic had been put into the tea of the workmen by persons unknown. There was no
dispute that in failing to examine the plaintiff, the doctor had been negligent. The issue to
be decided was whether the doctor’s breach of duty had caused the man’s death. The
plaintiff’s claim failed because causation could not be established. The hospital was able
to produce evidence to show that even if the deceased had been examined with proper
care, he would still have died.
Thus, the issue here is that if the damage would have occurred even if the breach of duty
had not occurred, then the breach of duty is not the cause of the damage.

In the case of Robinson v. Post Office; the plaintiff sought medical treatment following
a leg injury sustained through the defendant’s negligence. During the treatment, he
suffered a serious reaction to anti-tetanus vaccination which was administered by a doctor
who omitted to test for the allergy. The defendant was held liable for this injury but the
doctor was not liable for his omission to test for an allergic reaction because the
vaccination was urgently needed and the test would not have revealed the allergy in time.

It is important to note that the but for test is sufficient for cases in which there’s a single
breach of duty and a single defendant. But it is not adequate to deal with cases where
there are two or more breaches of duty. I.e. where there are multiple causes of damage or
two or more tortfeasors. For example, D1 and D2 both negligently start fires and the two
independent fires converge simultaneously on the plaintiff’s house and destroy it.
Assuming that either fire above would have been sufficient to destroy the house, the
result of applying the but for test would be that neither D1 nor D2 would be liable for the
damage since it could not be said that the damage would not have occurred but for D1’s
fire nor equally but for D2’s fire. The court, therefore, did not apply the test and simply
hold both tortfeasors fully liable for the whole loss subject to the right of each to obtain a
contribution for the other.

(2) Remoteness of Damage

The consequences of an act of carelessness on the part of a defendant may be far

reaching. The concept of remoteness of damage is one way in which the law sets limits to
the extent of a person’s liability for the consequences of his negligence and the basic rule
is that a defendant will be liable only for those consequences of his negligent act which

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are not too remote in law even though such an act may be said on the application of the
but for test to have caused the damage complained of.

The original position was that the defendant was liable for all the damage which was the
direct consequence of the wrongful act, whether or not the extent or the type of harm was
foreseeable. Thus, in the case of Re Polemis and Furness Withy & Co Ltd; a chartered
vessel was unloading in Casablanca when stevedores, servants of the charterers,
negligently dropped a plank into the hold in which cargo cans containing petrol were
stored. A spark ignited petrol vapor and caused an explosion in which the ship was
destroyed. It was held that the defendants were liable in negligence for the loss of the
ship because it was a direct, although not foreseeable consequence of their negligence. It
was observed in this case that, “once the act is negligent, the fact that its exact operation
was not foreseen is immaterial.” Thus, it did not matter that the total destruction of the
ship was not a foreseeable consequence of the act. The test for remoteness as laid down
in this case was the direct consequences test.

However, Re Polemis was strongly criticized by the Privy Council in the case of
The Wagon Mound No.1; the plaintiffs owned and used a wharf where they carried on
the business of repairing ships. The defendants negligently discharged oil from their ship
into Sydney Harbor where the plaintiff’s were carrying out welding operations. Molten
metal from the welding operations set fire to some cotton waste floating on the oil
beneath the wharf. The waste, in turn, set fire to the oil which resulted in the wharf being
severely damaged. The oil also found its way to the plaintiff’s slipways adjoining the
wharf and interfered with the plaintiff’s use of them. The plaintiff sued the defendants. It
was held that there was no question as to whether the plaintiff had suffered some damage
as a direct result of the escape of the oil but the fire was unforeseeable because expert
opinion at the time of the happening indicated that it was unlikely that the oil would set a
fire when spread thinly over water.

The court declared Re Polemis to have been wrongly decided and held that the fact that
some of the damage suffered (the damage to the slipways) was foreseeable, did not make
the defendants liable for the fire damage which was unforeseeable.
Thus, the test for remoteness of damage was whether the kind of damage suffered was
reasonably foreseeable. The court also stated that Re Polemis should no longer be
regarded as good law.

What resulted from The Wagon Mound No.1 decision is that the same test of
foreseeability must now be applied to all three (3) essentials of negligence as a tort,
namely duty, breach and damage.

Once it is established that the type of harm is foreseeable, it is not necessary to prove that
the defendant could foresee the extent of the likely damage. This has brought about the
rule which is that a defendant must take his victim as he finds him, known as
The Eggshell Skull Rule. The principle was concisely explained by Kennedy J. in the
case of Dulieu v. White & Sons; where he stated that “if a man is negligently run over or

11
otherwise negligently injured in his body, it is no answer to the sufferer’s claim for
damages that he would have suffered less injury or no injury at all if he had not had an
unusually thin skull or an unusually weak heart.” You take your victim as you find him.

Thus, where the injury which is negligently caused to the plaintiff is aggravated by a pre-
existing weakness on the part of the plaintiff, the defendant is still liable. In the case of
Smith v. Leech Brain & Co. Ltd; the plaintiff’s husband was splashed on the leg at
work with molten metal. He suffered, as was foreseeable, a splash injury. I.e. A minor
burn. However, it transpired that the particular body cells damaged where in a pre-
cancerous condition at the time and he developed cancer and died of the disease. It was
held that the defendant was liable even though the only foreseeable injury was a splash
injury. The eggshell skull rule applied. The question to be asked was whether the burn
could be foreseen, not whether the cancer was foreseeable.

In the case of Love v. Port of London Authority; the defendant’s, through their
negligence, caused the plaintiff’s workman to sustain a head injury and from such an
injury, a neurosis developed, although this was aggravated by a pre-existing heart
condition. Justice Edward Davies in holding the defendants liable commented “one has to
remember that the defendant must take the plaintiff as they find him; that is to say with
his already vulnerable personality…”

Intervening Acts
Where subsequent to the defendant’s breach of duty, an independent event occurs which
causes damage to the plaintiff, the question arises as to whether the intervening event is
to be treated as a novus actus interveniens which snaps the chain of causation and which
relieves the defendant of liability. Lord Wright, in The Oropesa, decided thus, “A new
cause which disturbs the sequence of events, something which can be described as
unreasonable, extraneous or extrinsic.” In other words, novus actus interveniens simply
means that an act or event has intervened to break the chain of causation which was set in
motion by the defendant’s negligence.

(1) Intervening Act of the Pliantiff – The defendant will not be liable where the conduct
of the plaintiff amounts to a novus actus interveniens. This may occur when the
plaintiff’s conduct has been so careless or unreasonable that his injury can no longer be
attributed to the negligence of the defendant.
It should be noted, however, that it is not every act of carelessness on the part of the
plaintiff that amounts to an intervening act. Sometimes, it is held to be simply
contributory negligence on the part of the plaintiff and this has the effect of reducing
damages payable to the plaintiff rather than an event which completely breaks the link
between the defendant’s negligence and the damages to the plaintiff. Thus, in the case of
McKew v. Holland & Hannen & Cubitts; the plaintiff, through the negligence of the
defendant, suffered an injury and for a short time afterwards, he occasionally lost control
of his leg. He went to inspect a flat and without asking for assistance, he attempted to
descend a steep flight of stairs with no handrail. When his leg gave way without warning,
he fell and sustained further injuries. It was held that the defendants were not liable for

12
the additional injury of the plaintiff as the plaintiff’s own act broke the chain of
causation. Lord Reid said, “If an injured man acts unreasonably, he cannot hold the
defendants liable for injury caused by his own unreasonable conduct.”

On the other hand, in Wieland v. Cyril Lord Carpets Ltd; the plaintiff suffered an
injury as a result of the defendant’s negligence. As a consequence of the injury, a surgical
collar was fitted to her neck which restricted her ability to move her hand and she was
unable to use her bi-focal glasses with her customary skill. While in this condition, the
plaintiff fell down a flight of stairs. It was held that the defendants were liable for the
plaintiff’s injury which the plaintiff sustained when she fell down the stairs. The learned
judge remarked that this was not a case where the plaintiff had been unreasonable in
continuing to wear her glasses. This was a case where the plaintiff had been left to cope
with the vicissitudes of life and the defendants were therefore liable for further injury
which she received whilst in this condition.

Intervening Acts of a Third Party

If the defendant’s breach of duty has done no more than provide the occasion for an
entirely independent act by a third party, and that act is the immediate cause of the
plaintiff’s damage, then it will amount to an intervening act and the defendant will not be
liable.
In the case of The Orapesa, supra, two ships collided as a result of the negligent
navigation of the defendant’s ship, the Orapesa. The captain of the other ship involved in
the collision, in an effort to save his ship, set out in rough seas in a lifeboat with 60
members of his crew. The lifeboat capsized and some of the crew drowned. The plaintiff
sued the defendant who, in turn, raised the defence of novus actus interveniens. It was
held that the defendants were liable for the deaths of members of the crew and the
captain’s decision to take out the lifeboat was reasonable action under the circumstances,
as it was an attempt to save the ship and so his actions did not break the chain of
causation. Lord Wright was of the opinion that “To break the chain of causation it must
be shown that there’s something I will call ultraneous, unwarrantable, a new cause which
disturbs the sequence of events, something which can be described as unreasonable,
extraneous or extrinsic.”

The defendant therefore remains liable where the act of the third party is not truly
independent of the defendant’s negligence. It should also be noted that the defendant
would remain liable where the act of the third party was involuntary. See the case of
Scott v. Shepherd. Furthermore, with regards to the negligent intervention of third
parties, negligent conduct is more likely to break the chain of causation than conduct
which is not negligent. Thus, in the case of Knightly v. Johns; the defendant’s negligent
driving caused the blocking of a busy tunnel. The police inspector sent P, a police
constable to drive back against traffic flow to close the tunnel entrance. P was then struck
and injured by a car being driven the other way. It was held that the defendant was not
liable. While it might be natural, probable and foreseeable that the police would come to
deal with the accident in the tunnel and that there might be risk taking, there had been so

13
many errors before P was sent back into the tunnel that the police inspector’s negligence
was the cause of P’s injuries.

Intervening Acts of Nature

If the damage suffered by the plaintiff is the result of an act of nature which is
independent of the negligence of the defendant, then the defendant is not liable. In the
case of Carslogie Steamship Co. Ltd v. Royal Norwegian Government; the plaintiff’s
ship was damaged in a collision caused by the defendant’s negligence. Having set out on
a voyage the ship would not have made had the collision not occurred, she suffered
extensive damage due to heavy weather conditions. The plaintiff sought to recover, inter
alia, the cost of repairing damage caused by the storm. It was held that the defendants
were not liable for the weather damage which was held to be an intervening event in the
ordinary course of the voyage. The tort (the defendant’s negligence) was merely part of
the history of events which placed the ship in that place at that time.

Examples of the Duty to Take Care

It is well settled that the categories of negligence are never closed and so it would be
neither practicable nor desirable to attempt to draw up a complete list of situations in
which one person owes a duty of care to another. There are, however, some duty
situations which are governed by special rules or which have assumed a particular
prominence in the courts and in legal writings. Some of these are discussed below –

(A) Economic Loss

Economic loss, in the words of Lord Roskill in the case of

Junior Books v. Veitchi Co. Ltd, concerns “damage to the pocket”. Thus, while a duty
to take care to avoid physical injury to the person and or property has been unduly
recognized as a general rule, it was not until recently that the court extended its
recognition to non-physical or purely pecuniary loss, even when such loss was
foreseeable. The reluctance of the court stems from the great concern by the judges that
to relax limitation of liability in this area of tort would lead to the opening of floodgates
and to a proliferation of claims.
A well established approach to the matter of restriction on liability for economic loss has
been to distinguish between loss caused by negligent statements and loss caused by
negligent acts.

Negligent Misstatements – The courts have consistently recognized that where the
defendants make a negligent or careless misstatement which has resulted in physical
harm to the plaintiff’s person or property, he will be held liable. Thus, in the case of
De Freville v. Dill; a doctor was held liable when he negligently certified the plaintiff to
be of unsound mind which led to the plaintiff’s detention in a mental home.
In the case of Clayton v. Woodman; an architect who carelessly gave the wrong
instructions to a brick layer which resulted in the collapse of a well and a consequent
injury to the brick layer was held liable in negligence.

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It should be noted, however, that while negligent misstatements as described above may
result in physical damage, such statements may also cause purely financial economic loss
to the plaintiff. The most important decision in this respect was delivered in 1963 in the
case of Hedley Byrne & Co. Ltd v. Heller and Partners Ltd; the appellants,
advertising agents, became doubtful about the financial status of one of their clients, Easi
Power Ltd. They made enquiries of the defendant’s bankers with whom Easi Power had
an account. The respondents replied first orally and then in writing that Easi Power was
financially sound. The appellants relied on the advice and suffered financial loss when
Easi Power went into liquidation. In deciding this case, the HL unanimously held that
there was no distinction to be made between financial loss and physical loss in principle,
and that accordingly, whenever a “special relationship” comes into existence, there arises
a duty to take care in the making of statements, a breach of which would find liability for
either types of harm suffered by the plaintiff, when there is a disclaimer of responsibility.
The HL went a step further to express its opinion that if in the ordinary course of
business, including professional affairs, a person seeks advice or information from
another who is not under any conditional or fiduciary obligation to give it, in
circumstances in which a reasonable man so asked, would know that he was being treated
on that skill or judgment, and such a person without disclaiming responsibility for it,
proceeds to give the advice or information, negligence will lie if loss or foreseeable
damage results. Thus, the following position seems to be clear from the decision in this
case.

(1) A duty of care will exist only where there’s a special relationship between the parties.
A majority of the judges in Hedley-Byrne considered that a special relationship would
arise whenever, in the circumstances, it was reasonable for the plaintiff to have relied
upon the case or skill of the defendant who made the statement and the defendant knew
or ought to have known that the plaintiff was relying on him. Thus, professional advisors
such as accountants, bankers, commission agents and surveyors will owe a duty of care to
their customers in respect of any professional advice given.

(2) No duty of care will arise where the advice is given on a purely social occasion since
it will be neither foreseeable by the defendant that the plaintiff would rely on the advice
nor reasonable for the plaintiff to do so.

(3) A non-professional person who gives information or advice on a business occasion

for example, one trader advising another as to the credit worthiness of another buyer,
owes a duty of care at least if he has a financial interest in the transaction in question.
Thus, in the case of W.B. Anderson and Sons Ltd v. Rhodes (Liverpool) Ltd; inquiries
were made from the defendants who were in the potato marketing business about the
credit worthiness of a potential customer to the plaintiffs. The defendants were aware of
the purpose of such inquiries and they were also aware that the plaintiffs would rely and
act on the strength of their recommendations. The defendants negligently informed the
plaintiffs that the potential buyer was credit worthy when, in fact, he was not. The
plaintiffs lost money by giving credits based on the said advice. It was held that the
defendants were liable.

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(B) Careless Acts or Omissions

Where a plaintiff has either sustained a personal injury or suffered damage to his
property directly, the law has always permitted him to recover damages for his resultant
economic loss. A typical example of this is found in personal injury litigation wherein the
successful plaintiff can recover damages in respect of his earnings during a period of
incapacity which was a result of the defendant’s negligent acts.

It should be noted, however, that a distinction should be drawn between economic loss
which has resulted from physical damage to the plaintiff or his property (hence is
recoverable) and economic loss which cannot be so related to any consequential damage
to the person or his property (hence not generally recoverable). The latter is frequently
referred to as pure economic loss.
Thus, in Weller & Co. Ltd v. Foot & Mouth Disease Research Institute; the court’s
reluctance to grant redress for pure economic loss was highlighted. In this case, the
defendants were occupiers of certain premises where they carried out experimental work
in connection with foot and mouth disease. They negligently released the virus, resulting
in the cattle in the vicinity becoming infected with the disease. The Ministry of
Agriculture, Fisheries and Food made an order to close two local markets. During this
enforced closure, the plaintiffs who were auctioneers, were unable to auction cattle at the
market and therefore brought an action against the defendants for damages for loss of
business alleging the plaintiffs were owed a duty to take reasonable care by the
defendants, a duty they were in breach of by negligently allowing an escape of the virus.
It was held that the plaintiffs could not recover damages for their loss as their loss was
indirectly through the loss of business. I.e. their loss was purely economic. On the other
hand, the farmers whose cattle contracted the disease were held to be owed a duty of care
in negligence. Their loss was recoverable.
Widgery L.J. went further to comment that “…if this argument is sound, the defendant’s
liability is likely to extend far beyond loss suffered by auctioneers for in an agricultural
community, the escape of foot and mouth disease virus is a tragedy which can forcibly
affect almost all businesses in the area.”

In the case of Cattle v. Stockton Waterworks Co.; the defendant had placed a defective
water main under a turnpike road. The resulting leakage of water seriously hampered a
contractor’s work of tunneling under the road, causing him to suffer a loss of profit. The
court held that he had no cause of action because they feared the possible avalanche of
claims. This decision has frequently been cited with approval and continues to be
authoritative as justification for denying a right of action to a person who has suffered
pure economic loss or damage through injury by the negligence of another.

In Electrochrome v. Welsh Plastics; it was held that the defendant’s duty of care was
owed to C, the owner of a fire hydrant damaged by the defendant and not to the plaintiff,
who could not recover damages for considerable financial loss which resulted from the
interruption in the running of its factory.

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In Spartan Steel & Alloys Ltd v. Martin & Co. Contractors Ltd; the defendant
contractor, in the course of digging the road, negligently cut a power cable, causing the
plaintiff’s smelting works to be shut down. At the time of the power cut, there was a melt
in progress and to stop the steel solidifying, it had to be drawn out of the furnace. This
reduced its value. The plaintiffs claimed for the reduced value of the melt and for the
profit which would have been made had it been completed. They also claimed for loss of
profit from four further melts which would have been processed but for the 14 hour
power cut. The plaintiffs recovered the reduction in value of the solidified melts and the
profit they would have made from its sale. However, they obtained nothing for the loss of
profits or the four further melts which would have been processed before the electricity
was restored and therefore that was a pure economic loss, independent of any physical
damage.

Although Hedley-Byrne which made a major inroad upon the principle that economic
loss was generally not recoverable in tort was originally confined to misstatements, there
followed a trend towards the formulation of a broader principle applying to both
statements and acts which would permit recovery where there was no prospects of inter-
determinate liability. This development blurred the distinction between statements and
acts and reached its highest mark in Junior Books v. Veitchi Co. Ltd supra; the plaintiff
had employed the main contractors to construct a company and they nominated the
defendants as specialist sub-contractors to lay the floor. The plaintiff alleged the floor
was defective (though not dangerous) and claimed the cost of replacing the floor plus
consequential financial loss. It was held that the defendants were liable; the proximity of
the relationship between the parties was so close as to be as good as a contract and the
building owner had, to the sub-contractor’s knowledge, relied on his skill and experience.
The court further held that there was no question of indeterminate liability in the situation
because the plaintiff was plainly foreseeable as an identified individual.

It is, however, important to note that this decision has not subsequently been followed
and has been distinguished to the extent that it can be said to be unique to its own facts.
Thus, in Simaan General Contracting Co. v. Pilkington Glass Ltd (No.2); Dillon L.J.
stated “I find it difficult to see that future citation from Junior Books can serve any
useful purpose.”

The current position, therefore, is that pure economic loss caused by negative acts is
normally irrecoverable unless the cause can be exceptionally brought within the
parameters of Hedley-Byrne.

Nervous Shock

Nervous shock is a form of personal injury for which damages may or may not be
recoverable depending on the circumstances of the case. This concept deals with
situations where the emotional distress suffered by the plaintiff has resulted in
recognizable physical damage caused by the sensorial impact of external events on the
mind. It should be noted that physical damage caused by negligence will be limited to

17
those persons within the range of the harmful events which psychiatric harm may affect a
wide range of persons beyond the direct victim of negligent conduct.

Initially, judges were reluctant to recognize that a duty of care could be owed in relation
to nervous shock as its very existence as a medical condition was doubted. They feared
the illness could be faked more easily than physical conditions and at times even seem to
mistrust psychiatrists because so much conflicting evidence was presented in nervous
shock cases. They also feared that once claims for nervous shock began to succeed, the
floodgates would be opened to allow a rush of claims. However, once it became clear that
psychiatrists were prepared to give consistent support to the existence of mental illness
arising from mental trauma, the number of successful claims increased.

Nervous shock is, thus, a distinct and substantial attack to the mind suffered through the
medium of one or more of the senses and having a noticeable manifestation. The first
successful nervous shock case was that of Dulieu v. White; the plaintiff, a pregnant
woman, was working behind the bar of a public house when the defendant ran his van
and horses through the window; she was not physically injured but was badly frightened,
resulting in the premature birth of her child. It was held that the plaintiff was entitled to
recover because there was real and immediate fear of injury to herself. In this case, the
recovery of damages was limited to shock which arises from reasonable fear of
immediate injury to the person of one’s self.

The law has since developed over the years and can be seen in the leading case of
McLoughlin v. O’Brien; the defendant admitted liability for an accident in which the
plaintiff’s young daughter was killed and her husband and two other children suffered
injuries. At the time of the accident, the plaintiff was home, two miles away. She was
informed of the accident one hour later and was driven to the hospital where her family
had been taken. Upon arrival, she was told of the death and saw the injuries to her family
in distressing circumstances before they had been treated by medical staff. The plaintiff
claimed for nervous shock which she suffered as a result of these events. The HL held
that nervous shock had been the reasonably foreseeable result of injuries to the plaintiff’s
family and the defendant was, therefore, liable. Lord Wilberforce with whom Lord
Edmund Davies agreed, identified three (3) elements which are inherent in such a claim –

(A) The class of persons whose claims ought to be recognized; the possible range of
people lies between the ordinary bystander on the one hand and the closest of family ties
on the other. Thus, the plaintiff must be a close relative of the victim. E.g. Husband and
wife, child and parent. Cases which involve less close relationships will require very
careful scrutiny.

(B) The proximity of such persons to the accident which must be close in both time and
space because for the plaintiff’s claim to succeed, a casual connection between the
psychiatric illness suffered and the defendant’s negligence has to be proved. Experience
has, however, shown that to insist on direct and immediate sights or hearing would be
impracticable and unjust.

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(C) Means by which the psychiatric illness was caused. The plaintiff will be required to
prove that the harm to him resulted from what he saw and heard himself and not solely
from what he was told. Thus, in the case of Hambrook v. Stoke Bros.; the plaintiff
witnessed the defendant’s lorry going out of control around a bend just where she had left
her children who were walking to school. Even though she did not see the collision which
ensued, she feared for the safety of her children. She was subsequently told that a child
fitting the description of her daughter might have been injured in the accident. The
plaintiff eventually died from the shock. It was held that the shock suffered by the
plaintiff was induced by what she had seen with her own eyes rather than what she had
been told by the defendants.

It should be noted that the plaintiff’s citing of an accident or his witnessing or the
immediate aftermath of an accident which has caused physical injury to his family or
friends whereby he suffers nervous shock, is actionable in negligence. In the case of
Brice v. Brown; a woman and her daughter were involved in a minor car accident and
the girl of nine suffered slight physical injury. The mother suffered serious nervous
shock. It was held that the defendant was liable in negligence for the mother’s resulting
mental illness.

It has also been held that the sight of physical injury to a plaintiff’s property caused by
the defendant’s negligence, resulting in nervous shock is also actionable. Thus, in the
case of Attia v. British Gas plc; it was held that a plaintiff who returned home to witness
the sight of her house burning down could obtain damages for nervous shock caused by
the defendant’s negligence in installing central heating.

Defences

There are two principal defences to negligent actions. One being contributory negligence
which operates where the plaintiff’s own fault has contributed to the damage suffered and
the damages payable are reduced in proportion to the degree of fault and the second
defence is volenti non fit injuria (no wrong is done to one who consents). This means that
a plaintiff who voluntarily agrees to undertake the risk of harm is not permitted to sue for
consequent damage.

Contributory Negligence

When the defence of contributory negligence is raised, the defendant is in effect saying
that the plaintiff’s injuries were partly a result of his own act; that is, his own negligence.
The defendant, in such a situation, acknowledges that his conduct has not lived up to that
of the hypothetical reasonable and prudent man but that the plaintiff would not have been
injured or if injured at all, such injuries would have been minimal if he, the plaintiff, had
behaved carefully.

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It is important to note, however, that prior to the Law Reform Tort Act 1961, contributory
negligence was a complete defence and no damages were recoverable where injuries
were caused partly by the plaintiff’s own fault.

S.8 (1) of the Act now contains the new position which provides that “where any person
suffers damage as a result partly of his own fault and partly of the fault of any other
person or persons, a claim in respect of that damage shall not be defeated by reason of the
fault of the person suffering the damage, but the damages recoverable in respect thereof,
shall be reduced to such extent as the courts think just and equitable, having regard to the
claimant’s share in responsibility for the damage.

Two (2) points should be noted about S.8 –

(1) The section only applies to persons who suffer damage. Damage being defined in
S.8 (7) as including loss of life and personal injury. It is also generally agreed that the act
also applies to property damage excluding economic loss.

(2) A claim only arises out of damage caused partly by the fault of the defendant, and
partly as a result of the fault of the plaintiff. Fault being defined as meaning “Negligence,
breach of statutory duty or other acts or omissions which give rise to the defence of
contributory negligence. Thus, the essence of contributory negligence in law is not that
the plaintiff’s carelessness was necessarily the cause of the accident but rather, he
contributed to his damage. In the case of Froom v. Butcher, the plaintiff was involved in
a collision caused by the defendant’s negligence. He was not wearing a seatbelt but if he
had been wearing a seatbelt, the head and chest injuries he sustained in the accident
would have been avoided. It was held that the standard of care is objective and that in
failing to wear a seatbelt, the plaintiff failed to take reasonable precautions for his own
safety and his damages were reduced accordingly. Thus, though the negligence of the
plaintiff did not contribute to the accident happening, his failure to take precautions
increased the risk of harm. The test here is objective.

It has also been held that a motorcyclist who was knocked down by a negligent car driver
was contributorily negligent in not wearing a crash helmet at the time, since his
carelessness in not wearing a helmet contributed to his damage though it could not in any
sense be said to have been the cause of the accident; O’Connel v. Jackson.

In the case of Jones v. Livox Quarries Ltd; Lord Denning opined that “A person is
found guilty of contributory negligence if he ought reasonably to have foreseen that if he
did not act as a reasonable prudent man, he might be hurt himself and in his reckonings,
he must take into account the possibilities of others being careless.” In that case, the
plaintiff, disregarding his employer’s safety instructions, was riding on the tow bar of a
traxcavator when another employee negligently drove into the back of the vehicle and
caused him injury. The plaintiff argued that his contributory negligence should not count
against him because the obvious danger arising from riding on the tow bar was being
thrown off, not being run into from behind and crushed by another vehicle. The CA held

20
that the risk of being run into from behind was also one to which the plaintiff had
exposed himself and his damages were reduced accordingly.

Thus, contributory negligence does not therefore involve any breach of duty owed by the
plaintiff to the defendant, for it does not necessarily connote activity fraught with undue
risk to others but rather, failure on the part of the person injured to take reasonable care of
himself and his own interest. Thus, a person is contributorily negligent if, for example, he
takes a lift in a vehicle driven by a man whom he knows to be under the influence of
alcohol. In the case of Owens v. Brimmel, the plaintiff and the defendant went on a pub
crawl together and each consumed about 8 or 9 pints of beer. On the journey home, the
defendant drove into a lamp post. It was held that the plaintiff was 20% contributorily
negligent in getting into a car with a driver whom he knew to be drunk even if at the time,
he himself was too drunk to know how drunk the driver was. It should be noted that
whilst there is no specific age below which as a matter of law a child cannot be found
guilty of contributory negligence, in Yachuk v. Oliver Blais Co. Ltd, the defendant
supplied a 9 year old boy with a pint of petrol. He had falsely stated that his mother
wanted the petrol for her car. When he used the petrol to make a burning torch for the
purposes of a game, he suffered severe injury. The defendants were found liable in
negligence for supplying petrol to such a young boy. He had not been guilty of
contributory negligence for he neither knew nor could be expected to know the danger.

Finally, where a defendant’s negligence creates an emergency, the court is reluctant to

find contributory negligence on the part of a plaintiff who makes a wrong decision in the
agony of the moment. In the case of Jones v. Boyce, the plaintiff was a passenger on the
defendant’s coach and fearing that it was about to overturn, he jumped off. The coach did
not overturn and had he stayed where he was, the plaintiff would have been safe. It was
held that the plaintiff was not guilty of contributory negligence because he acted
reasonably in the circumstances.

Volenti Non Fit Injuria

This means literally, no harm is done to one who consents. In other words, no person can
enforce a right which he has voluntarily waived or abandoned. As seen earlier, consent is
a defence to intentional tort such as assault, battery and false imprisonment. It may also
be a defence to an action in negligence, where it is sometimes called “voluntary
assumption of risk”. In the case of Smith v. Charles Baker & Sons, the plaintiff was
employed to drill holes in a rock cutting over which a crane often swung heavy stones
while he was working. He was aware of the risk of the stones falling and complained to
his employer about the dangerous practice. When he was injured by a falling stone, he
brought an action against his employers who pleaded volenti non fit injuria. Volenti was
rejected. Even though the plaintiff had knowledge of the danger, he had not voluntarily
undertaken the risk. If a defendant is successful in his plea of volenti, he will have a
complete defence and the plaintiff will be unable to recover any damages.

Essentials of Volenti in Negligence Cases

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In negligence cases, it is pertinent that the defendant shows not merely that the plaintiff
consented to the physical risk (the risk of actual damage) but also to the legal risk (the
risk of actual damage for which there’ll be no redress in law).
Consent here means, in effect, the agreement of the plaintiff expressed or implied to
exempt the defendant from the duty of care he would otherwise have owed.

Volenti can be established in three (3) different ways –

(1) Proof of Express Contract. I.e. whereby the plaintiff agreed to exempt the defendant
from legal responsibilities.

(2) By proof that even though there was no express contract, there was an express consent
to run the risk. An example is when a person accepts a free lift in a vehicle in which a
notice is displayed exempting the driver from liability for injury caused by any
negligence on his part.

(3) Where there is no express contract and no express consent, by showing that it must be
inferred or implied from the fact that the plaintiff consented to run the risk. For example,
where the plaintiff accepts a lift from a driver whom he knows to be so intoxicated as to
be incapable of driving safely, he will be deemed to have consented to any negligence on
the driver’s part as in Morris v. Murray; in this case, after a bout of heavy drinking,
Murray suggested to Morris that they go for a spin in his light aircraft. Soon after take off
the aircraft crashed, killing Murray and severely injuring Morris, who brought an action
against the deceased’s estate. It was held that the defence succeeded on the ground that
the pilot’s drunkenness was so extreme and obvious that the plaintiff was volens to the
risk.

An important limitation to the doctrine, however, is that the mere knowledge of the
existence of the danger does not constitute consent to run the risk, for the question is not
whether he knew of the danger or whether in fact he agreed to run the risk; see the case of
Smith v. Charles Baker & Sons, supra.

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Defamation

In Scott v. Sampson; Cave J. stated that “The law recognizes in every man a right to
have the estimation in which he stands in the opinion of others unaffected by false
statements to his discredit.”

The right is protected in the law of torts by the tort of defamation under the heads of
Libel and Slander. There is no satisfactory definition of a defamatory statement though
the classic one is that given by Lord Blackwell in Capital and Counties Bank v. Henty;
where he said that a defamatory statement is one “which is calculated to injure the
reputation of another by exposing him to hatred, contempt or ridicule.”

Lord Atkin in Sim v. Stretch, described defamation as “an imputation which may tend to
lower the plaintiff in the estimation of right thinking members of society.” Defamation is
concerned, therefore, with injury to reputation resulting from words written or spoken by
others. Thus, a defamatory statement tends to –

1) Lower the plaintiff in the estimation of right thinking members of society generally.
2) To expose him to hatred, contempt or ridicule.
3) To cause other persons to shun or avoid him.
4) To discredit him in his office, trade or profession.
5) To injure his financial credit.

The words complained of must tend to injure the plaintiff’s reputation in the minds of
right thinking people generally and not merely in the minds of a particular section of the
public. In Tolley v. Fry, Green LJ opined that “to write or say of a man something that
would disparage him in the eyes of a particular section of a community but would not
affect his reputation in the eyes of the average right thinking man is not actionable within
the law of defamation.”

This principle was illustrated in the case of Bryne v. Deane; the plaintiff and defendant
were both members of a golf club. The plaintiff alleged that the defendant had defamed
him by putting up a notice in the club to the effect that the plaintiff had made a report to
the police about certain illegal gaming machines kept on the club’s premises. It was held
that the defendant’s statement could not be defamatory since although other members of
the club might think less of the plaintiff in consequence of it, right thinking members of
the general public would certainly approve rather than disapprove of a person who
reported a criminal to the police.

Note that in assessing the standard of a right thinking member of the public according to
Lord Reid in Lewis v. Daily Telegraph Ltd, you must “rule out on the one hand, persons
who are so lax or cynical that they would think none the worse of man whatever was
imputed to him and on the other hand those who were censorious as to regard even trivial
accusation (if it were true) as lowering another reputation or who are so hasty as to refer
the worse meaning as to any ambiguous statement…the ordinary…citizen is neither

23
unusually suspicious nor unusually naïve and he does not interpret the meaning of words
as with the lawyer, for his is not inhibited by the meaning of rules of construction.”

Note also that what would be defamatory in one society might not be so in another and
that as time passes and social attitudes change, words may cease to be or become
defamatory.

Libel and Slander

There are two types of defamation; libel and slander.

Libel is defamation in a permanent form; the most common being written or printed
words contained in newspapers, books, letters, notices etc. It could also be in the form of
recorded film or recorded speech or an effigy. In Youssoupoff v. MGM Pictures Ltd; a
movie, in certain scenes, portrayed the plaintiff as having been raped. It was in fact
untrue and held to be libel.
In Monson v. Tousso Ltd; the plaintiff had been tried in murder in Scotland and had
argued successfully that the victim was killed by accidental discharge of his own gun.
The jury returned the verdict of not proven. Shortly after the trial, the defendant placed a
model of the plaintiff and his gun in a room which gave access to a chamber of horrors.
The plaintiff applied for an interlocutory injunction to restrain the display of that figure
until the trial was over. The court did not grant the injunction but the action was held to
be framed in libel. Lobes J. stated that “…libels are generally in writing or in printing but
this is not necessary. The defamatory matter may be conveyed in another permanent form
for instance such as a statue, caricature, effigy, signs or pictures; these may constitute a
libel.”

Slander, on the other hand, is defamation in the transient form most often through the
medium of spoken words or gestures. It is sometimes said that libel is addressed to the
eye whilst slander is addressed to the ear. Thus, in Gregory v. The Duke of Brunswick,
the malicious kissing of an actor was said to be slander.

There are two major differences between the torts of libel and slander –

1) Libel of sufficient gravity may be classified as a crime while slander is treated as a

tort.
2) Libel is actionable per se subject to certain exceptions whilst slander is actionable only
on proof of actual damage. This means that whenever a libel is published, the law will
presume that damage has been caused to the plaintiff’s reputation and would award him
general damages by way of compensation.

In the Nigerian case of Nthenda v. Alade; the plaintiff brought an action against the
proprietor, editor and reporter of Lagos Weekend newspaper, alleging that an article
published in the newspaper was defamatory to him. The defendant argued that the
plaintiff’s action should fail as he had not proved that he had suffered any actual damage
as a consequence of the publication. Bellow J. rejected this contention, saying that “In an

24
action for libel, the plaintiff need not prove malice in law and need not prove he had
suffered any actual damage as a result of the publication itself. In the absence of lawful
excuse…in Williams v. The West African Pilot, it was held that once a publication has
been found to be libel, the law presumes damage.”

Note that if the plaintiff in an action does prove he’s suffered actual damage, he’ll be
entitled to recover a further sum in addition to general damages. There are, however,
exceptional cases in which slander is actionable per se as follows –

1) Where there’s an allegation that the plaintiff has committed an

imprisonable offence. I.e. The commission of a crime which he can be made to
suffer corporally (physically, by way of punishment).

The offence must be one which carries a sentence of imprisonment at first instance rather
than one which carries merely a possible prison sentence or fine. Thus, in the case of
Thompson v. Barnard; the words “He’s a damned thief and so was his father before
him” without more, constituted slander. But in Brockley v. Maxwell, it was held not to
be actionable per se to call a man “a bastard, a liar and a cheat.” See also the case of
Radcliffe v. Evans; where Bowen J. stated that “Every libel is of itself a wrong in regard
to which the law implies general damages…akin to actions for libel are those actions
brought for oral slander where such slander consists of words actionable per se and the
mere use of which constitutes the infringement of the plaintiff’s rights. The very speaking
of such words, apart from oral damage, constitutes a wrong and gives rise to a cause of
action. The law in such a case presumes…general damages.”

Note that for the words to be actionable per se, they must impute to the plaintiff a
criminal offence but the exact offence need not be specified.

Words involving a general charge of criminality will suffice provided they impute some
offence for which the plaintiff can be made to suffer by way of punishment. In the case of
Curtis v. Curtis; it was held to be actionable per se when the defendant told the plaintiff
“you have committed an act for which can put you in prison”. A mere allegation of
suspicion is not sufficient for slander to be actionable per se; there must be a direct
assertion of guilt. Thus, to say that the plaintiff is a thief would be actionable per se but to
say the plaintiff is suspected of having stolen would not.

2) Imputation of Certain Diseases

Where the words impute to the plaintiff a contagious or infectious/repulsive disease, this
would be actionable per se. This is so because the effect of such an imputation would be
to exclude the plaintiff from society as a person with whom it is unsafe to associate.
There is uncertainty as to what diseases are included within this exception. Most
commentators accept that contagious and venereal diseases as well as such diseases as
smallpox, leprosy, plague or any contagious skin disease caused by personal
uncleanliness fall within this category. It is also likely that AIDS would fall within the

25
category of such a disease. In the case of Bloodworth v. Gray; the words “he has got
that damned pox (meaning venereal disease) from going to that woman on Derby road”
was held to be actionable per se.

3) Imputation of Chastity or Adultery

Under the Slander of Women’s Act 1891, words which impute unchastity or adultery to
any woman or girl shall not require special damage to render the defendant liable. Thus,
in the case of Youssoupoff v. MGM supra, a company was found liable when a film
falsely imputed that the claimant, a Russian princess, had been raped by Rasputin. It was
held that a statement that a woman has been raped can affect her reputation.
Note also that in Kerr v. Kennedy; unchastity has subsequently been held to include
lesbianism.

4) Imputation affecting Professional Business Reputation

Where there’s an imputation by the defendant that the plaintiff is unfit to carry on his
trade, profession or calling, the defendant will be liable actionable per se. This statement
must disparage the plaintiff in the way in which he or she exercises his or her profession
or job. In Jones v. Jones; an accusation that a school master had committed adultery with
one of the school cleaners was not actionable per se though an imputation of impropriety
with a pupil might be.

Vulgar Abuse

It is well established that words spoken as mere vulgar abuse or insult are not actionable.
Whether particular words constitute slander or mere vulgar abuse depend on the
circumstances in which they are spoken. Thus, if the defendant calls the plaintiff a dirty
whore at the height of a violent quarrel, this may be mere vulgar abuse and therefore not
actionable. But the same words spoken in cold blood would be slander. The onus is
therefore on the defendant to satisfy the court that…
1) The words were words of heat and anger.
2) The words were so understood by persons who were present when they were uttered.

Thus, in the Nigerian case of Bakare v. Ishola; there had been a fight preceded by an
altercation between the two parties. In the heat of anger, the defendant had in the
presence of onlookers said to the plaintiff, “you are a thief, ex-convict, you who have just
come out of prison.” It was held that the words complained of were vulgar abuse as they
had been spoken while the parties were exchanging words which led to blows.
Compare this with the case of Ibeanu v. Uba; where it was held that the following
statement, “Josiah, you brought thieves with whom you stole my goats and you have now
come to ask me.”, made in the presence of witnesses, were not mere vulgar abuse but
constituted actionable slander since it was clear from the evidence that there was no
quarrel between the parties.

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Note that if the defamatory words were written or printed and not spoken, the defendant
cannot rely on the defence of vulgar abuse since he would have had time to reflect on
what he was writing.

What the Plaintiff Must Prove

Whether the action is for libel or slander, the plaintiff must establish three (3) things –

1) The statement/words were defamatory.

2) The statement referred to the plaintiff.
3) The statement was published to at least one person other than the plaintiff.

1) The Statement/Words were Defamatory

Not all statements which result in the lowering of the plaintiff’s reputation are
defamatory. The statement must be false and must contain, whether expressly or by
implication, an opinion capable of lowering the plaintiff in the estimation of right
thinking members of society generally. Diplock L.J. in the case of Astaire v. Campling;
stated that “words are normally construed in their natural and ordinary meaning. I.e. The
meaning in which reasonable men of ordinary intelligence will be likely to understand
them.” Thus, the question in all cases is what interpretation will the reasonable man put
upon the statement? I.e. The statement must be understood by others to have a
defamatory meaning. In Cassidy v. Daily Mirror Newspapers Ltd; the defendants
published a photograph of Mr. Cassidy with a woman below which was carried an
announcement of the engagement. The information on which the defendants based their
statement came from Mr. Cassidy alone and they made no effort to verify from another
source. Mr. Cassidy was already married although separated. However, he did
occasionally stay with his wife at her flat. She brought an action in libel claiming that
readers who knew her as Mr. Cassidy’s wife would presume she had been lying. The CA
held that the defendants were liable, as the story would be understood by others to refer
to the plaintiff and the newspaper’s complete ignorance of the circumstances could not
prevent the statement from having a defamatory meaning.

Innuendo – Words may convey a defamatory imputation by means of some special

knowledge, facts or circumstances available to those whom they were published. Some
special meaning or inference will also be attached or drawn from the words. Such words
are then said to carry an innuendo. Thus, what the plaintiff contends in such
circumstances is that although the words are not defamatory on their face, they do convey
a defamatory meaning to the persons to whom they are published because of certain
special facts or circumstances not set out in the words themselves but known to those
persons (true/legal innuendo), or that the words are defamatory not because of any
special or extrinsic facts or circumstances known to those to whom the words are
published but because of some defamatory inference which reasonable persons would
draw from the words themselves (false/popular innuendo).

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If a plaintiff wishes to rely on any special facts as giving the word a defamatory or any
particular defamatory meaning, he must plead and prove such facts including where
necessary, special knowledge possessed by those to whom the words were published
which gives the words that meaning. In Allsop v. Church of England Newspaper; it
was held that if the words of which the plaintiff complained of (in this case, the plaintiff
was said to be preoccupied with a bent) are capable of any meaning or implication
outside a dictionary meaning, details of all such meanings should be explained in the
pleadings to give the defendant the opportunity to know what case has to be answered. In
the case of Russell v. Duke of Norfolk; the legal innuendo was examined. The
defendants, having engaged the plaintiff a famous singer to perform at a concert, printed
her name third in the order of the program. The plaintiff provided evidence that in the
musical world, first and last places on a notice were signs of superior reputations to the
middle places, so that the program constituted a defamatory innuendo to the plaintiff.

Also, as stated above, there may be cases in which the ordinary and natural meaning of
words does not constitute defamation but only arises from them by inference or
implication. It would be necessary in such cases for the plaintiff to prove the meaning he
ascribes to such words as a false innuendo. In Tolley v. Fry; the defendants published an
advert in which the plaintiff, a famous amateur golfer, was shown with a bar of Fry’s
chocolate in his back pocket and the words which were understood to be an endorsement
of the defendant’s brand of chocolate. The defendants had not asked his permission to do
this and the plaintiff alleged an innuendo that he had agreed to the advert for gain and
thus compromised his reputation as an amateur. It was held that the advert was capable of
bearing the meaning alleged and therefore constituted a libel.

2) The Statement must refer to the Plaintiff

Another requirement for a successful defamation is that the words complained of must be
shown to refer to the plaintiff. In Knupffer v. London Express Newspaper Ltd, Lord
Atkins stated that “In order to be actionable, the defamatory words must be understood to
be published of and concerning the plaintiff.”
Thus, to succeed in an action for defamation, the plaintiff must not only prove that the
defendant published words which were defamatory, he must also identify himself as the
person defamed. Thus, where the plaintiff is named, this presents no difficulty. However,
the plaintiff need not be named nor need there be any key or pointer in the statement to
indicate him in particular, provided that people might reasonably draw the inference that
it referred to him. In Bourke v. Warren, Abbott C.J. stated “The question is whether the
libel designates the plaintiff in such a way as to let those who know him understand that
he was the person meant. It is not necessary that all the world should understand the libel
if it is sufficient that those who know the plaintiff can make out that he is the person
meant.”
In Morgan v. Odham’s Press Ltd; the newspaper, the Sun, alleged that a girl had been
kidnapped by a dog doping gang because she threatened to inform the police of their
activities. At the relevant time, the girl had been staying at the plaintiff’s flat and the
plaintiff had produced six witnesses who swore that they understood from the article, that
he was connected with the gang. The HL held that the story was capable of a defamatory

28
meaning and that there was no rule that the article should contain some kind of key or
pointer to indicate the plaintiff. The question was whether the reader who knew the
circumstances would reasonably have understood the article as referring to the plaintiff.

Where the words complained of reflect on a body or class of persons generally, such as
lawyers, clergymen, doctors etc., no particular member or class can maintain an action.
In Eastwood v. Holmes, Willes J. said, “If a man wrote that all lawyers were thieves, no
particular lawyer could sue him unless there was something to point to the particular
individual.” Thus, the general rule is that where a statement is directed to a class of
persons, no individual of that class is entitled to sue unless…
1) The class is so small that the statement must refer to each person in it.
2) The words point to a particular plaintiff.

In the case of Knupffer v. London Express Newspaper Ltd supra, the defendant’s
published an article about a young Russian political party which linked them with
fascism. The party was an international organization with a British branch consisting of
24 members. The plaintiff alleged that as the person responsible for the politics of the
party, the libel personally affected him. The plaintiff’s action failed. It was held that the
general rule is that where a class of persons is defamed, it must be proved that the
defamatory statement was capable of referring to the plaintiff and was in fact understood
to do so. It is also immaterial that the defendant did not intend to refer to the plaintiff or
did not even know of his existence. The question is will the words complained of be
understood by reasonable people who know the plaintiff to refer to him? If the answer is
in the affirmative, then such words are deemed to be published of and concerning the
plaintiff no matter what the intention of the defendant may have been.

In Hupton & Co. v. Jones; the defendants published a humorous account of a motor
festival at Dieppe which implied that a fictitious character, Armetus Jones, a church
warden at Peckham, was behaving in a discreditable way with a woman in France. The
plaintiff, a barrister, who was not a church warden nor did he live in Peckham and did not
visit the festival in Dieppe, sued for libel. Friends of his swore that they believed the
article referred to him. It was held that the defendants were liable. What mattered was
how the words would be understood by others and not what they meant in the minds of
the writer and publisher.

In the case of Newstead v. London Express Newspapers Ltd; the defendants were
found liable when the statement was true of a person and honestly intended for him but
which could reasonably be attributed to the plaintiff. The statement that Harold
Newstead, a 30 year old Camberwell man had been convicted of bigamy, was true of a
barman of that name but not of the plaintiff, Harold Newstead, an unmarried hairdresser
from Camberwell, about age 30.

3) The Statement must be Published

The words must be published to a person other than the plaintiff alone or the defendant’s
spouse. I.e. the plaintiff must prove that the words of which he complained were

29
published or communicated by the defendant to at least one person other than the plaintiff
himself or his spouse. The reason why publication to the plaintiff alone is not actionable
is that the tort of defamation protects a person from injury to his reputation among other
people and not injury about himself. It is, therefore, not actionable in tort merely to make
a defamatory statement to the plaintiff alone out of the earshot of a third person nor to
write a letter to the plaintiff containing defamatory material. If the plaintiff decides to
show a potentially defamatory letter to someone else, there’s the defence of volenti as the
plaintiff and not the defendant has published the statement. In Hindura & Co.; the
plaintiff was sent a letter by his brother-in-law which was addressed to Mr. Stonehouse
Hindura. It contained a vicious personal attack on his character describing him as sick,
mean, twisted, vicious, cheap, ugly etc. The defamatory words in the letter were shown
by the plaintiff to other people but the defendant had only sent it to him. It was held that
there was no publication to a third party.

In the case of Huth v. Huth; the defendant sent a letter in an unsealed envelope to the
plaintiff which she alleged to be defamatory. The letter was opened and read by her
inquisitive butler in an admitted breach of his duty. The plaintiff argued that since there
was a presumption that postmen read postcards even though they had no business doing
so, the same presumption ought to apply to unsealed envelopes. It was held that there was
no publication even though the envelope was unsealed; it was not part of the butler’s duty
to open the letter and his conduct was not a direct consequence of sending it. Note,
however, that where the defendant negligently puts a letter in the wrong envelope, he will
be liable.

Every repetition of a defamatory statement is a fresh publication and creates a fresh cause
of action. Thus, every repetition of a libel is a new libel and each publisher is answerable
for his act to the same extent as if the statement originated from him. It is no defence that
in publishing a defamatory statement, the defendant was merely repeating what someone
else told him even if the name of such person was disclosed at the time of such
publication. As Best C.J. stated in the case of De Crespigny v. Wellesley; “Because one
man does an unlawful act to any person, another is not permitted to do a similar act to the
same person. Wrong is not to be justified or even excused by wrong.”

One who utters a slander or writes or publishes a libel is prima facie not liable for
damage caused by his voluntary and unauthorized repetition or republication by the
person to whom he published it to. The original publisher is, however, liable in 3 cases as
laid down in the case of Speight v. Gosnay;
1) Where he authorized or intended the person to whom he published the words to repeat
them or he published them to some third party.
2) Where the repetition or republication of the words was the natural and probable result
of the original publication.
3) Where the person to whom the original publication was made was under a legal or
moral obligation to respect or publish the words to a third person.

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Innocent Dissemination

The law adopts a more lenient attitude towards the person who is not the printer or the
publisher but has taken only a subordinate part in its dissemination. For example, a
newspaper distributor or a bookseller. Thus, in Vitzelly v. Mudie’s Select Library Ltd;
the defendants, proprietors of a circulating library, allowed people to use a book which
unknown to them contained a libel to the plaintiff. In a publication taken by the
defendants, the publishers had circulated a notice requesting the return of copies of the
offending book. It was held that the defendants had failed to establish their innocence and
were found liable. They had no procedure for checking whether their books contained
libels and they had overlooked their publisher’s request for the return of a particular
book.

Note that persons falling within this category (not printer or publisher) are nevertheless
liable for propagating the defamatory matter but they have a good defence if they can
prove…
1) That they had no knowledge of the libel contained in the work disseminated by them.
2) That there was nothing in the work or in circumstances in which it came to them or
disseminated by them which ought to have led them to suppose that it contained a libel.
3) That when the work was disseminated by them, it was not any negligence on their part
that they did not know that it contained the libel.

There is no publication if the defamatory words could not be understood by the person to
whom they are addressed. For example, where the person is too blind to read or is
illiterate or too deaf to hear or he does not understand the language in which the words
are written or spoken.

Defences

1) Justification

It is a complete defence to an action for libel or slander that the words complained of
were true in substance. The burden of proof is on the defendant to show that the
statement was true rather than on the plaintiff to prove that it was false. It is not
necessary, however, to prove the literal truth of every word if the facts of the defamatory
statement are true in substance. In Alexander v. North Eastern Railway Co.; the
plaintiff was charged for traveling on a train from Leeds for which his ticket was not
valid and for refusing to pay the proper fare. He was convicted and sentenced to 14 days
imprisonment in default of payment of the fine and costs. The defendant published a
statement which said that the plaintiff was sentenced to 3 weeks imprisonment. It was
held that the defence of justification succeeded because the statement was not sufficiently
inaccurate to defeat the defence.

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2) Fair Comment

It is a defence that the statement is a fair comment upon a matter of public interest. It is
important to preserve the fundamental right to freedom of expression and the defence is
available to all who comment fairly (within the legal definition) on all matters which may
be said to be the legitimate concern of the public. What is in the public interest is a
question of law for the judge and whilst there is no exhaustive category of such matters, it
covers conduct of government and public institutions, works of art and literature
produced for public consumption. In London Artists Ltd v. Littler; the four top
performers in a play terminated their contract through their agents, the plaintiffs. The
defendant, producer, was convinced that there was a plot to stop the play. He wrote and
published a letter suggesting that the plaintiffs and the actors had taken part in a plot to
end a successful production. The trial judge held the plea of fair comment to fail because
the matter was not one of public interest. Lord Denning interpreted ‘public interest’ as
follows “Whenever a matter is such as to affect people at large so that they may be
legitimately interested in or concerned at what is going on or what may happen to them or
others then it is a matter of public interest on which everyone is entitled to make a fair
comment.”

Note the following -

A) The statement cannot be a comment or opinion and not an assertion of fact.

It is essential to the defence of fair comment that the defamatory matter must appear on
its face to be a comment or opinion and not a statement of fact. If it is the latter, the
defence will not be available. Instead, the defendant will have to rely on the defence of
justification. In Kemsley v. Foot; the defendants attacked a newspaper by publishing an
article headed “Lower than Kemsley”. Kemsley, a newspaper proprietor, not connected
with the newspaper attacked, sued the defendants alleging that the article’s heading
imputed that his name was a bi-word for false and fowl journalism. It was held that the
defence of fair comment was available; the words implied certain conducts and
commented on that conduct and it was sufficiently clear that the relevant facts were the
conduct of Kemsley Press. See also the case of Telnikoff v. Matusevitch.

B) The comments must be based on facts truly stated

For a comment to be fair, it must normally be based upon true facts in existence when the
comment was made. Winfield & Jolowicz, in this respect, opined that you cannot invent
untrue facts about a man and then comment on them.

C) The comment must not be actuated by express malice

A plea of fair comment will be defeated if the plaintiff proves that the defendant, in
making his comment, was actuated by express malice which was defined by the Supreme
Court of Nigeria in the case of Bakare v. Ibrahim, as any corrupt motive or wrong
motive or making use of the occasion for some indirect purpose. In the case of

32
Thomas v. Bradbury, Agnew & Co. Ltd; a book reviewer for Punch had written a
critical review of the plaintiff’s book to which they pleaded fair comment. The reviewer’s
personal hostility against the plaintiff’s books was evident, not only from the review
itself, but also by his behavior in the witness box and elsewhere. It was held that the
defendant’s malice negatived the plea of fairness.

D) The comment must be honestly made

A comment must be fair for the purposes of the defence of fair comment notwithstanding
that it is violent, exaggerated, biased or clearly wrong provided it was honestly made.
The test under this head is subjective. I.e. whether the defendant honestly expressed his
real view as opposed to whether a reasonable man would hold and express such an
opinion.
Lord Denning M.R. explained this concept in the case of Slim v. Daily Telegraph Ltd;
where he stated that “If the defendant was an honest man expressing his genuine opinion
on a subject of public interest, then no matter that his words conveyed derogatory
imputation, no matter that his opinion was wrong, exaggerated or prejudiced, and no
matter that it was badly expressed so that other people read all sorts of innuendo into it,
nevertheless, he has a good defence of fair comment. His honesty is the cardinal test.

3) Absolute Privilege

a) There are certain occasions in which the law regards freedom of speech as essential
and provides a defence of absolute privilege which can never be defeated no matter how
untrue or malicious the statement may be. Thus, absolute privilege is a complete defence
to an action for libel or slander; it arises in those circumstances such as proceedings in the
legislature or in a court of law where public policy demands that a person should be able
to write or speak with absolute freedom without fear of liability for defamation.

Absolute privilege applies to statements made in parliament in the course of

parliamentary proceedings including papers ordered to be published by the House.

b) Statements made during the course of judicial proceedings whether by a judge, jury,
counsel or witnesses, provided they are broadly relevant before the court.

c) Communication between solicitor and client in connection with litigation. It is not

clear whether other communication attracts absolute or merely qualified privilege but in
any event, what passes between them is only protected in so far as it is reasonably
referable to the solicitor/client relationship.

d) Communication by one officer of state to another in the course of his official duty. It is
doubtful whether the privilege extends below communication on a ministerial level
though there may well be qualified privilege.

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4) Qualified Privilege

Both absolute and qualified privilege exist for the same fundamental purpose which is to
give protection to persons who make defamatory statements in circumstances (as per
Parke P. in Toogood v. Spyring) when the common convenience and welfare of society
demands protection. The main difference between the two defences is that the defence of
qualified privilege will be defeated if the plaintiff proves that the defendant, in publishing
the words complained of, was actuated by express malice, whereas in absolute privilege
the malice of the defendant is irrelevant. Qualified privilege has the potential for being
very broad in its scope and in some ways provides defences than absolute privilege which
is limited to very specific circumstances. In Watts v. Times Newspapers; Hirst L.J.
remarked that the categories of qualified privilege are never closed.

1) Statements made in defence of a Legal or Moral or Public Duty

Under this head, the defendant must show that not only was he under a legal, moral or
social duty to communicate the defamatory matter to a third party but that the third party
had a corresponding interest to receive it. In Watt v. Longsdon; the defendant, a
company director, received a letter from the foreign manager of the organization. The
letter alleged that the plaintiff, who was managing director of the company abroad, was
immoral and dishonest. The defendants informed the company chairman of his suspicion
that the plaintiff was misbehaving with women. He also communicated the statements,
which were false, to the plaintiff’s wife. It was held that the communication to the
chairman was privileged because both publisher and receiver had a common interest in
the affairs of the company. The publication to the plaintiff’s wife was not privileged
because the defendant had no social or moral duty to inform her about unsubstantiated
allegations, even though she might have been interested in hearing them.

Thus, where a legal, moral or social duty to communicate the defamatory matter exists in
a particular case is a question of law to be determined by the judge. In Stuart v. Bell; the
test for the existence of a duty was suggested to be “When the great mass of right
thinking men in the position of the defendant have considered it their duty under the
circumstances to make the communication.” The test is, therefore, objective.
Whether a moral duty existed to communicate a defamatory statement may be
particularly difficult to determine in family or domestic situations. In Moffett v. Coates;
it was held that a father or a near relative may warn a young man as to the character of an
associate. In Adams v. Coleridge; it was held that a near relative or intimate friend may
warn a lady about the character of a man whom she proposed to marry. It has been said,
however, that as a general rule, it is not desirable for anyone, even a mother-in-law to
interfere in the affairs of man and wife; Watt v. Lonsdon.

2) Statements made in Self Defence

A statement made in order to protect the defendant from an attack on his reputation or
property by the plaintiff is qualified privilege. In defending himself, however, the

34
defendant is not permitted to make unnecessary imputations on the private life of his
attacker which are wholly unconnected with the attack and irrelevant.
In Dwyer v. Esmonde, May C.J., on the issue, stated that “the privilege extends only so
far as to enable him to repel the changes brought against him and not to bring fresh
accusations against his adversary.”

3) Statements made between parties having a Common Interest

Where A makes a statement to B, which is defamatory of C, A will be protected by

qualified privilege if A and B have a common interest in the subject matter. The privilege
may arise in a wide variety of cases and it is impossible to classify the cases in which
common interest may arise. A common interest may be pecuniary; for example, where an
insurance company writes to a policy holder, informing him against dealing with a former
agent of the company, or a professional for example, where an auctioneer writes to other
auctioneers in the district informing them that a person has purchased goods as an option
and received them without paying.
See the cases of Neville v. Fine Art & General Insurance Companies and Boston v.
Bagshaw.

4) Statements to the proper authorities in order to obtain redress for Public

Grievances.

A private grievance in this context means a grievance suffered by the defendant as an

individual and not the public as a whole, whilst the public grievance is one which affects
the public as a whole and which any member of the public, whether personally affected
or not, has an interest in bringing it to the attention of the proper authority. Gatley is of
the opinion that “where a man believes that he has suffered a grievance at the hand of
another, he is entitled to bring his grievance to the notice of the person or body whose
power it is to grant redress…any statement made is privileged if made in good faith and
is not for the purpose of slandering the victim.”

5) Fair and Accurate Reports of Proceeding in Legislature

A report in a newspaper, a radio or T.V. broadcast or other media or proceedings of the

parliament will be protected by qualified privilege if it is accurate.

6) Fair and Accurate Reports on Judicial Proceedings – Criteria is the same as

above

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Vicarious Liability

The general rule is that one who expressly authorizes or ratifies a tort is personally liable
but there are circumstances in which a person is liable for the tort of another, even in the
absence of such authorization or ratification. The liability which thus arises is known as
vicarious liability. Lord Denning, in Launchbury v. Morgans, stated that “vicarious
liability means that one person takes the place of another so far as liability is concerned.”
The most common example of it is liability of a master for the tort of his servant
committed in the course of their employment.

In early medieval times, the master was held responsible for all the wrongs of his servant
based on what was known as the command theory. However, by the start of the 20 th
century, it was clearly established that the liability of the master was not based on the
concept that he had impliedly commanded his servants to do what they had done
tortuously but on the safer and more simple ground that it had been done in the scope or
during the course of his employment or authority irrespective of whether the master
authorized or ratified the activity complained of and even if he may have expressly
forbidden it. The modern theory of vicarious liability is not based on fault but on
considerations of social policy.

Thus, while it may seem unfair and legally unjustifiable that a person who has committed
no wrong should be liable for the wrong doing of another, on the other hand, it may be
argued that a person who employs others to advance his own economic interests should
be held responsible for any harm caused by the activities of those employees and that
innocent victims of the employees’ tort, should be able to sue a financially responsible
defendant who can always take out insurance against liability.

Servants and Independent Contractors

A person employed to do a job may either be a servant or independent contractor. It is

important to determine into which category he falls, for whilst an employer is liable for
the tort of his servant, he’s generally not liable for those of independent contractors;
Quarman v. Burnett.

The traditional test for determining this question is control. A servant is employed under
a contract of service. Whereas an independent contractor is employed under a contract for
services. In Collins v. Hertfordshire County Council; Hillbury J. stated that the
distinction between a contract for services and a contract of service can be summarized in
this way; in the one case (contract of service), the master can order or require what is to
be done, while in the other case (contract for service), he cannot only order or require
what is to be done but how it should be done.

While the Control Test may be satisfactory in most basic domestic situations, it has
proved to be quite inadequate in the context of modern business enterprise where large
organizations commonly employ highly skilled professional persons under contract of

36
service and yet do not or cannot control the manner in which they do their work. A useful
alternative, therefore, is the Organization Test, which was explained by Denning L.J. in
the case of Stevenson, Jordan and Harrison Ltd v. Macdonald and Evans Ltd; where
he said, “Under a contract of service, a man is employed as part of a business and his
work is done as an integral part of the business. Whereas, under a contract for services,
his work although done for the business, is not integrated into it; it is accessory to it.”

Servants

MacKinnon J. in the case of Ready Mixed Concrete S.E. Ltd v. Minister of Pensions
and National Insurance; after a full review of the authorities, enumerated the following
criteria regarding the master/servant relationship –

1) The servant agrees that in consideration of a wage or remuneration, he will provide his
own work or perform some services for his master.

2) He agrees expressly or impliedly that in the performance of that service, he will be

subject to the control of others of a sufficient degree to make that other the master.

3) The other provisions of the contract are consistent with it being a contract of service.

A master is liable for the tort of his servant if committed in the course of his employment
but is not liable for torts committed outside the scope of his duty. In the case of
Marsh v. Moors; Lymske J. stated that “It is well settled law that a master is liable for
the wrong of his servant committed in the course of his employment…even for acts
which he has not authorized, provided they are so connected with the act which he has
authorized that they may be rightly regarded as modes, although improper modes of
doing them. On the other hand, if the unauthorized and wrongful act of the servant is not
so connected with the authorized act as to be a mode of doing it, then it is an independent
act of the servant. The master is not responsible for in such a case, the servant is not
acting in the course of his employment but has gone outside it.”

Note that where an act which is authorized by an employer is performed by the employee
in a wrongful manner, the employer remains liable. In the case of Wattman v. Pearson;
the employees were allowed an hour for dinner but were forbidden to go home and were
to leave their horses and carts unguarded. However, one of the employees went home for
dinner anyway, making a deviation in his route about one quarter of a mile. When he
negligently left his horse out in the street, it bolted and damaged the plaintiff’s property.
It was held that the employee’s duty involved looking after the horse and cart all day and
he was, therefore, acting within the scope of his employment.
See also Century Insurance Co. Ltd v. Northern Ireland Road Transport Board; the
driver of a petrol tanker, while transferring petrol from the vehicle to an underground
tank at a filling station, struck a match in order to light a cigarette and then threw it still
alight on the floor. The employers were held liable for the ensuing explosion and the fire
since the driver’s negligent act was merely an unauthorized manner of doing what he was
employed to do (to deliver petrol).

37
In determining whether or not a servant’s wrongful act is done in the course of
employment, it is necessary that a broad view of all the surrounding circumstances should
be taken as a whole and not restricted to that particular act which caused the damage.
There is no simple test which can be applied to cover every set of circumstances so that it
remains essentially a question of fact in respect of each case.

A relevant factor in determining whether or not a servant’s tort was within the course of
employment is the time or place at which it was committed.

As regards time, when a tort is committed during working hours or within a reasonable
period before or after, the court is likely to hold the employer liable for it. In
Rodman and Co. v. Smith; where a clerk, 10 minutes after office hours, turned on a tap
in a washroom and forgot to turn it off before going home, his employers were held liable
for the consequent flooding of the adjoining premises.

As regards place, a difficult question is whether a driver/servant is within the course of

his employment where he drives negligently, after making a detour from his authorized
route. In Joel v. Morison; Parke B. stated that “The master is only liable where the
servant is acting in the course of his employment. If he was going out of his way against
his master’s command when going on his master’s business, he would make his master
liable but if he was going on a frolic of his own without being on his master’s business,
the master would not be liable.

Note that whether a detour by a servant amounts to a frolic of his own is a question of
degree of how far a deviation from the authorized route will be considered a separate
journey. In Storey v. Ashton; the employees were instructed to deliver some wine and on
the return journey, one of them persuaded the other that since it was by then after hours,
to set off in a different direction to visit relatives. On the way there, the plaintiff was
injured by the employee’s negligent driving. It was held that the driver was not acting in
the course of employment; it was a new and independent journey which was entirely for
his own business.
The fact that a servant disobeys his master’s order does not necessarily mean that he’s
acting outside the course of his employment. The distinction needs to be drawn between
an order that limits the scope of employment, the disobedience to which means the
servant is not in the course of his employment and an order that limits the method of
performing the duties of the servant. In Limpus v. London General Omnibus Co.; a bus
driver was instructed not to race with or obstruct buses of rival companies. He disobeyed
the instruction and caused an accident in which the plaintiff’s horses were injured. It was
held that despite the prohibition, the employer’s were liable since this was simply an
improper method adopted by the employee in performing his duty. Compare this with the
case of Beard v. London General Omnibus Co.; a bus conductor, in the absence of the
driver, decided to turn the bus around for the return journey. As a conductor, it was not
his job to drive the bus and he was, therefore, acting outside the course of his
employment. Thus, his employers were found not to be vicariously liable for the tort he
committed.

38
Note also that where a deliberate assault is involved, the courts are reluctant to find that
the employee was acting in the course of employment. In Warren v. Henlys; an
employee engaged as a petrol pump attendant by the defendant, mistakenly thought that
the plaintiff was attempting to drive away without paying for some petrol. He made this
accusation to the plaintiff in violent language. The plaintiff paid the bill, called the police
and when he threatened to report the pump attendant to his employees, he was assaulted
and injured by him. The plaintiff brought an action against the employers. It was held that
the defendants were not liable; the assault was a mere act of personal vengeance and
outside the course of employment.

In the case of Keppel Bus Co. Ltd v. Sa’ad bin Ahmad; a passenger was not allowed to
recover when a bus conductor blinded him with his ticket punch.

Fraud or Theft by Servants

Initially, the position in this area of the law was that an employer was not liable for his
servant’s fraud or theft committed against the plaintiff if such wrongful act was carried
out slowly for the servant’s own benefit and not for his employer’s. However, in the
leading case of Lloyd v. Grace, Smith & Co., the position changed and it was settled
that there are occasions where an employer will be vicariously responsible for the
deliberate criminal conduct of his servant. In this case, the defendants, a firm of
solicitors, employed a clerk who fraudulently induced a client into transferring some
cottages over to him. He then dishonestly disposed of the property and stole the proceeds.
The HL held that even though the fraud was not committed for the benefit of the
employers and they were ignorant of his schemes, they were liable because they had held
the clerk out as having authority to perform the type of transaction in question.

In the case of Morris v. Martin & Sons Ltd; a firm of dry cleaners was found liable by
the CA when the plaintiff’s fur coat was stolen by an employee.

Independent Contractors

Generally speaking, an employer is not vicariously liable for any torts committed by an
independent contractor or his employees in the course of the job for which he is
employed.

In the case of Allan v. Heyward; an independent contractor was defined as “A person

who carries on an independent employment and contracts to do certain work which he
can decide for himself as how it should be done. Whilst he may be subject to the direction
of his particular employer, in no sense is he under any contract to or under the control of
the employer and he is free to perform the work in his own way.”

39
In Pickard v. Smith; Williams J. stated “Unquestionably, no one can be made liable for
an act or breach of duty unless it be traceable to himself or his servants in the course of
his or their employment. Consequently, if n independent contractor is employed to do a
lawful act and in the course of work, he or his servants commit wrong or negligence, the
employer is not answerable.”

There are, however, a number of exceptions to the principal of non-liability to the tort of
independent contractors –

1) Authorization of the Tort

Where D authorizes, directs or instigates C to commit a tort, D will be liable to P for it as

well as C. I.e. Both D and C will be jointly liable. A typical example commonly given of
liability for authorizing an independent contractor’s tort is that of the passenger in a taxi
who orders a driver to drive fast or to take other risks. In such a case, both the taxi driver
and the passenger will be liable for any damage caused by the former’s reckless driving.
In the case of Ellis v. Sheffield Gas Consumers Co.; X was employed as a contractor to
dig a trench in a public street. Z, a passerby fell into the trench and injured himself. The
court held that both the contractor and X, the employer, were liable to Z, the plaintiff, in
public nuisance.

2) Torts of Strict Liability

Where, in the course of doing work for an employer, an independent contractor commits
a tort in which liability is strict such as in nuisance, breach of statutory duty or the Rule
in Rylands v. Fletcher, the employer may in some circumstances be liable for the
conduct of the contractor. Thus, in the case of Itambong v. Akonye; the Supreme Court
held “obiter” that the Ministry of Works of Eastern Nigeria, which was under a statutory
duty to maintain a certain road, was entitled to employ an independent contractor to do
the work but the ministry did not absolve itself from liability for any injury done to a
third party in carrying out excavations on adjacent land.

3) Negligence

(a) Personal Negligence of the Employer

An employer will be personally liable for his own negligence in, for example, carelessly
appointing an incompetent contractor, failing to provide in his contract with the
contractor for precautions to be taken where there’s foreseeable risk of harm arising from
the work and failing to carry out an inspection of the contractor’s work after it has been
done.
(b) Vicarious Liability for Independent Contractor’s Negligence

40
In some circumstances, the duty to take care is said to be non-delegable. I.e. a person
does not discharge his duty of care merely by appointing, instructing or supervising a
competent contractor. Non-delegable duties arise where the projected work is
intrinsically dangerous or hazardous and involves a high risk requiring special
precautions. The list of such duties is not closed and the courts have gradually been
extending it. Thus, for instance, it seems that hospital authorities are under a non-
delegable duty to provide proper care and treatment for all patients admitted and they are
liable for the negligence of independent contractors such as visiting consultant surgeons
or engineers engaged in repairing equipment in operating theatres.

Occupier’s Liability
Occupier’s liability is a field in which until recently there was only a limited duty owed
in law to others, but which has been extensively overhauled by statute and common law
developments to include the imposition of liability akin to that of negligence.

Occupier’s liability covers damage resulting from the state of the defendant’s premises.
Other damage is covered by negligence. Thus, an occupier of premises or of fixed or
moveable structures such as vessels, vehicles or aircraft, necessarily owe an obligation in
respect of the safety of people who enter or come upon such things and in respect of the
property of such people.

The rationale behind this is that the occupier is the person in control of said premises and
has or ought to have a greater knowledge than others of their condition. I.e. the condition
of the premises as it is for him to ensure that they are reasonably safe and that others are
not endangered by them.

Who then is an Occupier? Lord Denning, in Wheat v. Lacon (E) & Co. Ltd; stated that,
“Whenever a person has a sufficient degree of control over premises, that he ought to
realize that any failure on his part to use care may result in injury to any person coming
lawfully, then he is an ‘occupier’ and the person coming lawfully there is his ‘visitor’ and
the occupier is under a duty to his visitor to use reasonable care.”

Control is, thus, the decisive factor and it is immaterial that the occupier has no interest in
the land. He may be an owner in occupation, a tenant, a licensee or any other person
having the right to possession to permit others to enter the premises.”

Note also that in order to be an occupier, it is not necessary for a person to have entire
control over the premises. He need not have exclusive occupation. What is relevant is that
he has some degree of control. He may even share control with others as two or more
persons may qualify as owners and whenever this is the position, each of the occupiers is
under a duty to use care towards persons coming lawfully onto the premises, dependent
upon his degree of control.

In the case of Wheat v. Lacon (E) & Co. Ltd (supra); the defendants owned a pub
which was managed by an employee. The employee and his wife had rooms on the first

41
floor as a private dwelling house but had no interest in the premises. It was provided
under an agreement with the defendants that there should not even be a tenancy
agreement between the parties. The wife was given permission to take in paying guests in
part of the first floor, the only access in which was by means of an outside staircase on
the rear of the premises. The handrail of the staircase ended above the third step of the
staircase which was unlit. When the plaintiff and her husband were guests one night, her
husband fell from the stairs and died from his injuries. It was held that both the employee
and defendant (owner of the pub) were occupiers.

It is important to note that this area of the law (occupier’s liability in respect of visitors)
is governed by the Law Reform Law of Torts Act 1961, while occupier’s liability in
respect of trespassers continues to be governed by the common law as the act does not
apply to trespassers but only concerns itself with lawful visitors.

Occupier’s Liability in respect of Visitors

S.3 (1) of the Law Reform Law of Torts Act 1961 states that an occupier of premises
owes the same duty, the “common duty of care” to all his visitors except in so far as he is
free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by
agreement or otherwise.

The import of this section is that an occupier shall owe a special duty of care to persons
and towards the property of persons who lawfully come upon their premises or structure.
The Act refers to such people as ‘visitors’ and includes invitees, licensees and those who
have a contractual right to enter. Thus, people who come upon the premises or structure
for some material interest of the occupier himself, will fall as ‘visitor’. For example, an
electrician or a plumber, people coming for their own advantage such as guests for dinner
and those who come in the exercise conferred by law such as police entering the premises
under authority of a search warrant.

Where a person enters under a contract, a term will be implied into the contract that the
visitor is owed the duty of care. For example, where a landlord lets a flat but retains a
common staircase in his own control, he covenants to permit not only the tenant but also
the tenant’s visitors to use it. In Lowery v. Walker; for 35 years, members of the public
had used a shortcut across the defendant’s field to a railway station. Although he had
attempted to prevent this, he had never taken any serious action to do so because most of
the people involved were customers for his milk. The plaintiff was injured by a
dangerous horse which had been put into the field by the defendant. It was held that the
plaintiff was an implied licensee and was not a trespasser.

It must be noted that S.2 (3) (a) of the Act regulates the obligations of persons occupying
or having control over any fixed or moveable structures including any vessel, vehicle or
aircraft and the nature of the occupier’s obligation goes except in so far as the occupier is
free to and does modify or exclude his obligations by agreement or otherwise standard of
care which he owes to such people in respect of danger due to the premises or structure of

42
other things done or omitted to be done on them. This is what the Act terms the “common
duty of care” and this according to S.3 (2)…is a duty to take such care as in all
circumstances of the case is reasonable to see that the visitor will be reasonably safe in
using the premises for the purposes for which he is invited or permitted by the occupier to
be there. The words underlined are of importance for if a police officer, for instance,
enters a premises under the lawful authority of a search warrant and then proceeds once
there, to do things unconnected with the authority conferred upon him by the warrant, he
will then cease to be a visitor and then become a trespasser.

Subject to this limitation, therefore, the exact nature of the reasonable care which the
occupier must take depends upon the wording of said section; S.3 (2); (upon all the
circumstances of the case). The test is subjective.

Special care must be taken for the safety of child visitors as S.3 (3) (a) provides that “an
occupier must be prepared for children to be less careful than adults.” It has been
established by numerous decisions that an occupier must be especially careful in their
dealings with visiting children. In particular, it has long been recognized that such things
as poisonous berries, trains etc. are allurements to children in the sense that they both
attract them and at the same time possess inherent dangers which they would not usually
appreciate.

Thus, the occupier must guard against the degree of such things to child visitors and if he
fails in this respect, he will be liable to a child in circumstances in which he would not
usually be liable to an adult who chooses to meddle with things on his property. So, the
occupier has to go the extra mile for a child visitor. In Glasgow Corp. v. Taylor; a 7
year old child died from eating poisonous berries he had picked from a shrub in a public
park. The berries looked like cherries or large blackcurrants. It was alleged that the local
authority knew of the poisonous nature of the berries but the shrub was not fenced nor
was any warning of the danger given. It was held that the defendants were liable; the
tempting looking berries constituted an allurement to children.

In the case of Latham v. Johnson & Nephew; the court said that there was a duty not to
lead children into temptation but an object such as a pile of stones against a wall could
not possibly constitute a trap and will not amount to an allurement.

Note also that in some circumstances, occupiers are entitled to assume that the parents
will utilize reasonable care for their children’s safety. In the case of Phipps v. Rochester;
a boy aged 5 and his sister aged 7 walked across a large open space which was being
developed by the defendants. It was known to the defendants that people crossed their
land but they apparently took no action. A long deep trench which would have been
obvious to an adult had been dug in the open space. The plaintiff fell and broke his leg. It
was held that the defendants were not liable. Gelvin J. placed the responsibility for small
children primarily on their parents and concluded that both the parents and the occupier
must act reasonably.

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Also of importance is S.3 (3) (b), which states that an occupier may expect that a person,
in the exercise of his calling, will appreciate and guard against any special risks
ordinarily incident to it, so far as the occupier leaves him free to do so. In the case of
Roles v. Nathan; two chimney sweeps were called to clean an old coke burning boiler
which smoked badly. They were warned by an expert that the sweep hole and inspection
chamber should be sealed before the boiler was lit. They disregarded the warning and
died when overcome by fumes. It was held that the occupier was not liable; his duty had
been discharged by warning the sweeps of the particular risks and also he could
reasonably expect a specialist to appreciate and guard against dangers arising from the
very defects he had been called to deal with. Lord Denning, in this case, said “If it had
been a different danger as for instance the stairs leading to the cellar gave way, the
occupier might no doubt be responsible.”

Note that the common duty of care is not strict or absolute but depends upon some
element of negligence or fault on the part of the occupier. As such, the occupier is not
answerable without more for injury incurred as a result of faulty work done on the
premises by an independent contractor provided that –

(1) It was reasonable to entrust the work to an independent contractor.

(2) The occupier had taken reasonable care to see that the contractor was competent.

(3) The occupier has taken reasonable care to ensure that the work was done properly.

The more technical the work, the more reasonable it will be to entrust it to an
independent contractor. In Haseldine v. Daw; the plaintiff was injured when the lift in a
block of flats fell to the bottom shaft. The accident happened as a result of the negligence
of a firm of independent contractors whom the defendant had employed to repair the lift.
It was held that the defendant was not liable as he had discharged his duty by employing
a competent firm of engineers to make periodical inspections of the lift. Having no
technical skills meant that he would not be expected to check that the work had been
done in a satisfactory manner.

In some instances, the occupier may be aware of the existence of danger on his premises
and therefore warns his visitors of said dangers. Where such warning has been given,
S. 3 (4) (a) provides that if injury occurs, the fact that the warning had been given may
absolve the occupier. However, this would only be so if in all the circumstances, a
sufficiently effective one to enable the visitor taking care of himself to be reasonably
safe. In the case of Rae v. Mars (U.K.); it was held that where an unusual danger exists,
the visitor should not only be warned but a barrier or added notice should be placed to
show the immediacy of the danger.

Note that S.3 (5) provides that the common duty of care does not impose upon an
occupier any obligation to a visitor in respect of risks willingly accepted as his by the
visitor and the section goes on to provide in effect that the ordinary general principle of
the maxim volenti non fit injuria is to apply as between visitor and occupier.

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Occupier’s Liability in respect of Trespassers

As stated earlier, the Act does not apply to trespassers as it only concerns itself with
lawful visitors. The occupier’s obligation to trespassers is therefore governed by the
common law. According to Lord Dunedin in Robert Addie & Sons Ltd v. Dumbreck;
“Trespasser is defined as one who goes upon land without invitation of any sort and
whose presence is either unknown to the proprietor and if known, is practically objected
to.”

Initially, at common law, there was no positive duty to trespassers. There was a limited
negative duty not to disregard the trespasser in a reckless fashion. Thus, an occupier was
liable to a trespasser if he injured him intentionally or recklessly but was not liable if he
injured him by mere negligence, however gross. The leading case in this area of the law
was Robert Addie & Sons Ltd v. Dumbreck supra; on the defendant’s land stood a
large wheel, around which was a heavy steel cable forming part of a haulage system. The
wheel was unguarded and easily accessible. It was set in motion by a switch, the operator
of which could not see the wheel when he set it going. To the defendant’s knowledge,
children entered the land to play around the wheel, although the defendant’s servants
drove them away when they saw them. One day, the servants set the wheel in motion
without checking to see if anyone was playing on it. In consequence, a little boy of 4 was
crushed between the wheel and cable and was killed. The HL held that the defendants
were not liable. Lord Hailsham stated that the position of the law is as follows –
“Towards the trespasser, the occupier has no duty to take reasonable care for his
protection or even to protect him from concealed danger. The trespasser comes onto the
premises at their own risk. An occupier is in such cases liable only where the injury is
due to some willful act involving something more than the absence of reasonable care.
There must be some act done with the deliberate intention of doing harm to the trespasser
or at least some act done with reckless disregard of the presence of the trespasser.”
The case illustrates the harsh nature of the rule that occupiers owed no liability to
trespassers.

This old rule was, however, done away with as it was considered that the term
‘trespasser’ did not only refer to the manifest rogue who richly deserves his injury but to
a number of sympathetic characters as well.
Thus, in the case of British Railways Board v. Herrington; the HL completely
overturned the old rule. In this case, the plaintiff, aged 6, was badly burned while
trespassing on the defendant’s land. The child had obtained access to the land through a
gap in a chain link fence which had been trodden down by members of the public using it
as a shortcut. The defendants knew that in the past children had been seen on the line but
they took no action. It was unanimously held by the HL that an occupier could sometimes
be liable to a trespasser whom is injured negligently even if the occupier was neither
reckless nor was his act intentional. The occupier owes a duty to act humanely.
Therefore, the occupier’s duty towards the trespasser is similar to his duty towards
visitors; a duty to take such care as is reasonable in all the circumstances.

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To this end, two circumstances are particularly relevant –

(1) The seriousness of the danger. An occupier must take more steps to protect a
trespasser from injury from a minefield or a high tension cable than from something tame
such as a pile of stones.

(2) The type of trespasser who is likely to come. Case law makes it abundantly clear
that an occupier must take greater care for the safety of child trespassers than adults.
There is no theoretical objection to a claim by an adult trespasser but, in practice, it is
much less likely to succeed because an occupier is justified in taking less care for an
adult’s safety than for that of a child. However, unlike his duty to his lawful visitors, the
occupier’s duty towards the trespasser is unusually discharged if the occupier takes
reasonable measures to keep them out.

In the case of adults, he will usually show sufficient diligence in this respect if he puts up
notices saying ‘Danger’, ‘Keep out’ or if the danger is not serious, he merely makes it
clear in some way that his land is private property.

If the occupier can reasonably anticipate the presence of children, however, he must take
more active steps such as keeping up his fences. In Pannet v. P. McGuiness & Co. Ltd;
it was held that if the danger is great and he, the occupier, is unable or unwilling to erect
a fence, then he must set a watchman to warn off children.

Note that in a situation where the trespasser is injured not by the land but by the steps
taken by the occupier to keep him off the land, the law tends to draw a distinction
between deterrent dangers and retributive dangers. Thus, the occupier may with impunity
set around his property, dangers such as broken glass on top of walls, spikes, fierce dogs
etc. provided these are obvious from the outside and set there solely to deter trespassers
from entry. However, he is not allowed to set within his property, hidden dangers such as
traps or spring guns to punish trespassers having entered.

Passing Off

The essence of the economic tort of passing off is the selling of goods or carrying on of
business in such a manner as to mislead the public into believing that the defendant’s
products or business is that of the plaintiff’s and the law on this matter is designed to
protect traders against that form of unfair competition which consists in acquiring for
one’s self by means of false or misleading devices, the benefit or the reputation already
achieved by rival traders. In the case of Spalding & Bros. v. A.W. Gamage Ltd; Lord
Parke described the right which is protected by this tort as “the property in the business or
goodwill likely to be injured by misrepresentation.”

In Leather Cloth v. American Leather Cloth Co.; Lord Kingsdown stated that “the
fundamental rule is that one man has no right to put up his goods for sale as the goods of
a rival trader.”

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In the leading case of Erwen Warnink B.V. v. J. Townend & Sons Ltd, the tort was
extensively analyzed. Here, the plaintiffs were manufacturers of a drink known as
Advocaat made of, inter alia, eggs and spirits with a mixture of wine. The defendants,
had, for several years, manufactured another alcoholic drink known as Egg Flip, made up
of eggs and wine and marketed their product under the name of Egg Flip up to 1974. In
1974, the defendants began to market their product as Keeling’s Own English Advocaat
and captured an appreciable share of the English market for advocaat. The HL held that
no one was likely to be deceived into believing that the defendant’s drink was Dutch
Advocaat. I.e. that they were buying the plaintiff’s product. Therefore, no form of passing
off arose. However, they further held that the name Advocaat was generally understood
to denote a distinct specie of drink by virtue of which the plaintiffs had built up their
reputation and goodwill and the defendants’ misrepresentation had induced the public
into believing that they were buying Advocaat, causing damage to the plaintiff’s business
and goodwill. On this basis, therefore, a cause of action arose.

Lord Diplock pointed out five (5) essential ingredients necessary in order to succeed in an
action for passing off. There must be –

(A) A Misrepresentation,
(B) Made by a trader in the course of trade,
(C) To the prospective customers of his or ultimate consumer of goods and services
supplied by him,
(D) Which is calculated to injure the business or goodwill of another trader in the sense it
is a reasonably foreseeable consequence,
(E) Which causes actual damage to the business or goodwill to the trader by whom the
action is brought or will probably do so.

(A) Misrepresentation

Misrepresentation may take any of the following forms –

(1) Marketing a product as That of the Plaintiffs – It is an actionable passing off for
the defendant to sell merchandise with the direct statement that the goods are
manufactured by the plaintiff when they are not. In Byron v. Johnson; the defendant
published advertised poems as those of Lord Byron’s when they were actually written by
another person of a different name. It was held that the defendants were liable in passing
off.

(2) Using a Plaintiff’s Name – To engage in the same line of business as that of the
plaintiff and to use a similar name may be passing off. A well known example of this
type of passing off is found in the case of Hendrix v. Montague; where the Universal
Life Assurance Society was granted an injunction restraining the defendant’s company
which was incorporated subsequently from carrying on business under the name of
Universal Life Assurance Association. In this case, James L.J. said, “Now, is there such a
similarity between those names as that the one is in the ordinary course of business
affairs, likely to be confused with the other. Are persons who have heard of Universal

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likely to be misled into going to the universe? I should think, speaking for myself, very
likely indeed. Many people do not care to bear in mind exactly the very letters of
everything they have heard of.”

In the Nigerian case of Niger Chemists Ltd v. Nigeria Chemists; the plaintiffs had
carried on business as chemists and druggists for several years and had several branches
in Eastern Nigeria. The defendants later founded a firm carrying on exactly the same type
of business in one of the towns in Eastern Nigeria under the name of Nigeria Chemists.
The plaintiffs contended that the defendants’ use of a name similar to their own was
actionable passing off and they sought an injunction to restrain its further use. Palmer J.
granted the injunction, holding that the use of the name Nigeria Chemists was calculated
to deceive persons who know of and intend to deal with Niger Chemists. He stated that,
“It seems to me, as a matter of common sense, that when two firms trade in the same
town, in the same street and in the same line of business, one calling itself Niger
Chemists and the other, Nigeria Chemists, there must be a grave risk of confusion and
deception.”

In Tussaud v. Tussaud; the plaintiff company, Madame Tussaud and Son Ltd, was
granted an injunction to restrain the registration of a proposed new company, Lewis
Tussaud Ltd, which was promoted by the defendant for the purposes of carrying on a
similar business or exhibition to that of the plaintiff.

(3) Using the plaintiff’s Trade Name – Passing off may be committed where the
defendant uses the plaintiff’s trade name. A trade name is one under which goods are sold
or made by a certain person and which, by established usage, has become known to the
public as indicating that those goods are the goods of that person.
In Powell v. Birmingham Vinegar Brewing Co.; the plaintiff successfully brought an
action against the defendants for an injunction to restrain them from passing off their
sauce as his by use of the term, ‘Yorkshire Relish’.

Note that purely descriptive names, that is to say names which indicate merely the nature
of the goods sold and not that they are the merchandise of any particular person, are not
protected. Examples include the case of Ragget v. Findlater for ‘stout’, the case of
British Vacuum Cleaner Co. v. New Vacuum Cleaner Co. Ltd, for ‘vacuum cleaner’
and also in the case of Re Woodward’s Trademark, it was held that ‘gripe water’ was
descriptive.

If a plaintiff wishes to establish that a name which is merely descriptive in nature as

relates to his product has acquired a secondary technical meaning, he must discharge a
very heavy burden. In Reddaway v. Banham; the plaintiff had for some years made
belting and sold it as camel hair belting, a name which had come to mean in the trade, the
plaintiff’s belting and nothing else. The defendants began selling belting made of the yarn
of camel’s hair and stamped it Camel Hair Belting so as to mislead purchasers into the
belief that it was the plaintiff’s belting, endeavoring then to pass off his goods as those of
the plaintiff’s. It was held that the plaintiff was entitled to an injunction restraining the
defendant from using the words ‘camel hair’ as descriptive of or in connection with

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belting made or sold or offered for sale by him and not manufactured by the plaintiff
without clearly distinguishing such belting from the plaintiff’s.

(4) Using the plaintiff’s Trademark – It may be tortious to use the plaintiff’s trademark.
A trademark is any design, picture, mark, name or other arrangement affixed to goods
which identifies those goods with the plaintiff, manufacturer or seller.
The Trademarks Act Cap 244 of the Laws of Sierra Leone 1960 at S.3, requires a register
of all trademarks together with the names and addresses of all their proprietors to be kept
in the office of the Registrar General.

(5) Imitating the Getup or Appearance of the Plaintiff’s Goods – Where there is
anything as the appearance or getup of the plaintiff’s goods which particularly identifies
those goods as merchandise of the plaintiff’s, the defendant will be liable for passing off
if, in marketing his own goods, he imitates or copies such appearance or getup in a
manner likely to confuse the public. In U.K. Tobacco Co. Ltd v. Carreras Ltd; the
defendants marketed cigarettes called Barrister in packets on which appeared a white man
in a barrister’s wig and gown. This was held to be actionable imitation of the getup of the
plaintiff’s cigarette called Bandmaster, whose packets featured a white man in a
bandmaster’s uniform.

(B) In the course of Trade

The misrepresentation must be made in the course of trade. Trade is liberally defined and
includes the pursuit of a trade and/or a person’s interest in his literary and performance
rights.
(C) A Representation to Customers or Ultimate Customers

The representation must be made either to prospective customers or the plaintiff or to the
ultimate customers of goods and services supplied by him.
See the case of Erwen Warnink B.V. v. J. Townend & Sons supra, where a foreign
based company established that it had customers in England.

If the parties have no common field of activity, that in itself does not defeat an action
provided that injury to goodwill from confusion is established.
In Harrods Ltd v. R. Harrod Ltd; a bank was able to restrain a money lender from
setting up a trade under the same name on the ground that it will endanger its reputation
if it were also thought to be a moneylender.

However, in the case of Granada Group Ltd v. Ford Motor Co. Ltd; the plaintiffs,
Granada TV, could not prevent the defendants from calling a new car model, Granada, on
the ground that there was neither a connection nor association between the two activities
or any proved confusion to the public.

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(D) Calculated to Deceive/Injure Goodwill

It is settled that the defendant may be liable for passing off although his conduct was
extremely honest and innocent in the sense that he had no intention to deceive. The tort is
whether a misrepresentation has in fact been made fraudulently or otherwise which will
foreseeably result in misleading the consumers. Liability is therefore strict and all the
plaintiff needs to show is that the defendant’s activities are calculated. I.e. likely to
deceive the public.

Note that it is not necessary to prove that the deception had actually taken place but it is
sufficient to prove that it is likely to occur in the future. If so, he may be awarded a “quia
timet” injunction.

In determining whether a confusion is likely, the court will take into account the
experience, perception and standard of literacy of the prospective purchaser of goods;
Johnston v. Orr-Ewing.

(E) The action lies even though no damage is proved; probability of

damage is enough.

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