UNIVERISTY OF NAIROBI

Faculty of Law
General principles of Liability- Principle of Tort Law

LECTURE 1 & 2

GENERAL PRINCIPLE OF LIABILITY

1.1 Introduction
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The Character of Torts

‘What does tort mean?’ it seems to be generally accepted that the word itself is a surviving
relic of Norman French and means simply ‘wrong’. This does not tell us very much.

The law of tort is notoriously difficult to define.

Salmonds has defines a “tort” as “ a civil wrong for which the remedy is a common law
action for unliquidated damages and which is not exclusively the breach of a trust or other
merely equitable obligation”.

Winfield defines the meaning as follows1:

‘Tortuous liability arises from the breach of a duty primarily fixed by law; this duty it toward
persons generally and its breach is redressible by an action for unliquidated damages.’

This definition is helpful in that it shows that there are three elements

- a duty fixed by law - this does not necessarily, nor indeed usually, mean fixed by
statute but a duty which the courts have recognized.
- the duty must be owed generally - as we shall see individual torts have been
developed so that a general duty is owed to any person in a position to bring an action
based on that tort
- the breach of duty must entitle the claimant to general damages.

The nature of duty varies from tort to tort. For example where negligence is alleged, the duty
is to take responsible care; in the case of trespass to that person the duty is to refrain from
infringing a person’s bodily integrity.

The class of person to whom a duty is owed may be limited. for example in negligence, a
duty is owed to those who ought reasonably have been foreseen as likely to be affected by

1
W.V.H , Winfield & Jolowicz on Tort 16th ed. Sweet and Maxwell, 2002

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

failure to take reasonable care; in trespass to the person the duty is owed only to those
directly affected by the action.

The injury sustained must be of a type recognized by the law. In negligence for example it
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took many years for the courts to recognize that psychiatric amounted to an injury in the same
way as physical injury; in trespass to the person; and other torts, which are actionable per se,
it is unnecessary to prove damage, the infringement of the right being regarded as injury
enough.

The Function and Purposes of torts

The aim of the law of torts is twofold:

 To compensate someone who has suffered a wrong at the hands of the

defendant; and
 to deter a person from acting in such a way that another person’s rights are
infringed.
(i) Compensation

A person who has suffered injury is entitled to financial compensation which is intended, so
far as is possible, to put them in the position they would have been in but for the wrong doing
of the defendant. Where the damage is purely to property this may be possible, but real
difficulty arises in cases of personal injury.

The award of damages can also be regarded as ensuring that an injured party receives justice
in that loss caused by the tort is compensated. In some cases ‘the victim’ makes it clear that
the money is in reality no compensation for the loss, which has occurred. While the finding of
liability may go some way to satisfy the injured party’s desire for vengeance, having ‘had
their day in court’, it is only rarely that a punitive element of damages is payable.

From the defendant’s point of view, the concept of justice is also debatable. The amount of
damages is assessed purely by the effect on the claimant. A defendant who has caused serious
personal injury to a particular victim because of some personal characteristic of that victim
will find that the award far exceeds the amount which would have been payable to another,
less vulnerable, victim (Consider Thin Skull Principle to be discussed later).

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

The law does not always regard a person as having a legal claim. In negligence for example a
person who suffered psychiatric damage as a result of the defendants having negligently
caused harm to someone else, will only be able to bring an action when certain very strict
condition have been complied with. Page | 3

(ii) Deterrence

The deterrence effect of tort is debatable. This is illustrated by the decision of certain
publishers to go ahead and publish defamatory material in the belief that, if the ‘victim’
brings an action, the profit will outweigh any possible compensation. In such cases if an
action is brought damages can include a punitive element, but such a publisher may also
calculate that the ‘victim’ is unlikely to bring an action. An action for deformation frequently
has the effect of ensuring that the material becomes known to many more people, no legal aid
is available and the outcome is unpredictable as in many cases the final decision rest with a
jury. None of these are matters which a ‘victim’ is likely to ignore.

Where insurance is required, for example in relation to motor vehicle (Note the Road Traffic
Act), the deterrent effect is perhaps more effective. A person who is liable may well find that
once the insurance company has paid the compensation, the premium goes up. Defendants
may or may not care that their actions have caused injury to someone else, but all are likely to
be very concerned about the effect on their pockets.

The deterrent effect is also reinforced in the case of professionals who are subject to strict
codes of practice, for example health care professionals, lawyers and accountants.
Professionals governing bodies usually have powers to prevent future practice where the
codes are not obeyed thus preventing a wrongdoer from earning a living.

The Interest protected by the law of torts

Common law develops incrementally by virtue of the doctrine of precedent but it is possible
to classify, in broad terms, the general nature of interests which the law of torts protects:

 Personal security
 property
 reputation

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

 Economic interests.

Personal Security

This is the most obviously protected by the torts of trespass to the person and trespass to land. Page | 4
When negligence is studied it is clear that this tort also has a part to play in ensuring that an
individual does not suffer harm by the unreasonable acts or omissions of others. Nuisance
helps to protect occupier of land from activities on neighboring land, which are detrimental to
health or comfort.

Property

Property is protected by the torts of trespass to land and interference with goods. In Ryland’s
v Fletcher (1868) LR 1 Exch 265 the Court used the tort nuisance by providing a remedy for
wrongful interference with the use of land or damage caused to land, in both cases caused by
some activity or omission on the wrongdoer’s land. Negligence also has a role to play where
property is damaged as a result of failure to take reasonable care.

Reputation

A person’s reputation is protected by the torts of defamation. This may help to protect
privacy by preventing publication of true but detrimental information.

Economic Loss

Economic loss is an oddity. Damages are calculated to take account of financial loss
sustained by the victim of a tort. But there are restrictions on the availability of a claim in
negligence for what is described as ‘pure economic losses’.

The ‘economic’ torts of deceit, malicious falsehood, passing off and interference with trade
may ensure that a business is protected from unfair competition. Economic loss will also be
compensated where the law of contract can be used. Generally, a tort consists of some act
done by the defendant whereby he has without ‘just cause’ or excuse caused some form of
harm to the plaintiff. An action of tort is usually a claim for pecuniary (monetary)
compensation in respect of damage suffered as the result of the invasion of a legally protected
interest.

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

The law would normally distinguish between two concepts: damnum, which means the
damage suffered, and injuria, which is an injury having legal consequences.

 Damnum sine injuria

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The mere fact that a person has suffered damage does not entitle him to maintain an action in
tort. Before an action can succeed, the harm suffered must be caused by an act, which is
violation of a right, which the law vests in the plaintiff or injured party. Damage suffered in
the absence of violation of such legal right is known as damnum sine injuria. Damnum sine
injuria occurs in the following instances: where the harm done may be caused by some
person who is merely exercising his own rights; that is in the case of the loss inflicted on
individual traders by competition in trade, or when the damage is done by a man acting under
necessity to prevent a greater evil, or in the exercise of statutory authority.

The courts may hold, on balancing the respective interests of the parties; that sound policy
requires that the interests of the defendant should prevail over those of the plaintiff. So the
natural right to support of a landowner is subordinate to the natural right of his neighbor to
exploit his property by the extraction of underground water not percolating through defined
channels, whether the defendant has acted intentionally or carelessly, as was in the case of
Bradford Corporation v Pickles (1895).

 Injuria Sine Damnum

This means that although no actual damage is done, there is a violation of a legal right of the
plaintiff. This is actionable in court. In Ashby v White (1703), a returning officer,
wrongfully refused to register a properly tendered vote of the plaintiff who was a legally
qualified voter. In spite of this, the candidate for whom the vote was tendered was elected,
and no loss was suffered by the rejection of the vote. Held that the defendant was liable
because the plaintiff was denied of his legal right of registering his vote.

Torts are of two kinds – namely, those, which are actionable per se, and those, which are
actionable only on proof of actual damage resulting from them. Thus the action of
trespassing upon another’s land is actionable even though it has done the plaintiff no harm.
The importance which the law places on the security of the plaintiff’s interests in such a case
can be seen from the fact that the onus lies on the defendant to justify his conduct – e.g., in an

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

action of libel the defendant must show that the statement is true or privileged or protected by
whatever other defences that may be available. On the other hand, in torts such as negligence
or malicious prosecution the onus lies on the plaintiff to show that the conduct of the
defendant is legally unjustified. Page | 6

Cases

Marzetti v. Williams, Banker refusing customer ‘s cheque

An action will lie against a banker , having sufficient funds in his hands belonging to a
customer, for refusing to honor his cheque, although the customer did not thereby sustain any
actual loss or damage.

Chase more v. Richards (1859)(interception of percolating water)

A landowner and mill owner who had for about six years enjoyed the use of a stream, which
was chiefly supplied by percolating underground water, lost the use of the stream after an
adjourning owner dug on his own ground an extensive well for the purpose of supplying
water to the inhabitants of the district. In an action brought by the landowner it was held that
he had no right of action.

Gloucester Grammar School Case (Setting up rival school)

Where the defendant, a schoolmaster, set up a rival school next door to the plaintiff’s and
boys from the plaintiff’s school flocked to the defendant’s it was held that no action could be
maintained. Competition is no ground of action whatever damage it may cause, provided
nobody’s legal rights are infringed.

Mogul steamship Co. v Mc Gregor, Gow & Co. (1892) Driving rival trader out of market

A, B, C and D, ship-owners, who shipped tea from one port to another, combined together, to
keep the entire trade in their hands and consequently to drive F, a rival ship-owner, out of
trade by offering special terms to customers who deal with them to the exclusion of F. F sued
A, B, C and D for the loss caused to him by their acts. It was held that F had no right of
action, for no legal right of F had been infringed. Damage done by competition in trade was
not actionable.

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

Earl Cowley v. Countess Cowley (using of name of another man’s house)

Where the marriage of a commoner with a peer had been dissolved by decree at the instance
of the wife, and she afterwards, on marrying a commoner, continued to use the title she had
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acquired by her first marriage, it was held that she did not thereby, though having no legal
right to the user, commit such legal wrong against her former husband, as to entitle him, in
the absence of malice, to an injunction to restrain her the use of the title.

Butt v. Imperial Gas Co. (1866)- obstruction to view of a shop

The plaintiff carried on his business in a shop, which had a board to indicate the material in
which he dealt. The defendant by virtue of statutory power erected a gas meter that obstructed
the view of his premises. In an action by the plaintiff’s to restrain by injunction the erection
of the gas meter as it injured him by obstructing the view of his place of business, it was held
that no injunction could be granted for the injury complained of.

Dickson v Reuters Telegraph Company (1877) – Mis-delivery of telegram

A sent a telegram to B for the shipment of certain goods. The telegraph, company mistaking
the registered address of C for that of B, delivered the telegram to C. C, acting on the
telegram, sent the goods to A. A refused to accept the goods stating that he had ordered the
goods not from C, but from B. C sued the telegraph company for damages for the loss
suffered by him. It was held that C had no cause of action against the company, for the
company did not owe any duty of care to C, and no legal right of C would therefore be said to
have been infringed.

SOURCES OF TORT LAW

Statute

A statute is a law passed by Parliament. Statutory Law is known as legislation. In the

Kenya, Parliament is the supreme legal authority in so far as enactment of law is concerned,
provided the said statute conforms to the Constitution. A statute can change the law
developed by judges in courts. A judge in a court of law can interpret a statute but cannot
change it even if he thinks there is a defect in a statute. Only Parliament can change a statute
by passing another statute.

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

Cases (Case Law)

Much of the common Law had been created and developed by judges when they give
judgements in disputes, which come before the courts. When judges decide a case, they not
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only have to give a decision in favour of one party or another – they have to give a reason for
the decision.

The reasons for the decision are known as the ratio decidendi. The binding principle of law
in a case is found in the ratio decidendi.

Hierarchy of Courts

Supreme Court

Court of Appeal

High Court

Chief Magistrates Courts

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

LECTURE 3 &4

GENERAL ELEMENT IN TORTS

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TORT AND MENTAL ELEMENT

Tortuous liability arises because the defendant interferes with protected interest of the
claimant, and the mental state of the defendant, when relevant, is usually measured by
reference to an objective assessment of his conduct. This assessment of “fault”, for the
purpose of tortuous liability, is not the equivalent of the elements of mens rea in many
crimes. A tort that does not require the claimant to prove malice, intention or negligence is
known as a tort of strict liability.

In torts two mental states are relevant:

(i) intention
(ii) malice

 Intention

In the criminal law, the general principle is that a person must intend to commit the crime if
they are to be found guilty (the element of mens rea). It is very rarely the case that a person
must be shown to have intended to commit a tort although where this can be shown; the
claimant may find it easier to establish a case.

Where a person wishes to produce a result forbidden by law and where he foresees it and
carries on regardless of the consequences, he is said to act intentionally.

Many torts require the defendant to have intended to do the act, which amounts to the tort. In
trespass to the person, for example, the defendant must have intended to touch the claimant in
order to be liable although they need not have intended to commit battery. A trespass to land
cannot be committed by a parachutist who is blown onto land by the wind.

It is worth noting that the defendant must intend to do the act amounting to the trespass, but
he need not intend to cause the harm. The Practical jokey can be made liable for the joke

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

which goes wrong, but a person who suffers a fit and strikes someone as a result will not be
liable in trespass as he does not intend his act. He may be liable in negligence where, for
example, he drives a car contrary to medical advice and runs someone down.
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In the tort of negligence, the defendant is liable for unintended consequences of an act.
Liability rests on the fact that the defendant failed to foresee the potential consequences and
thus failed to guard against them. If the consequences are intended, then some other torts may
have been committed. By way of example, if a motorist deliberately rams another vehicle,
there may be liability for trespass to the person or to goods, but there will be no liability for
negligence.

 Malice

In some rare circumstances, the defendant’s motive may be relevant. An improper motive
usually referred to as malice and its presence can have the effect or rendering what might
otherwise be a reasonable action unreasonable and therefore unlawful.

Malice in tort posses’ two distinct meanings. It may be:

- The intentional doing of some wrongful act without proper excuse; or

- Acting with some collateral or improper motive

There is a general principle that malice is irrelevant in tort law. If a person’s has a right to do
something then his motive in doing it is irrelevant. Equally, the fact that a person violates
another’s right intentionally rather than carelessly does not aggravate that person’s
responsibility in tort.

Examples of this are found in the tort of malicious falsehood and in nuisance. Malice may
also defeat the defense of qualified privilege available in defamation.

In Bradford Corporation v Pickles (1895)

The defendants had extracted percolating water which flowed under his land in undefined
channels, with the result that the water supply to the claimant’s reservoir was reduced. The
defendant’s motive was to compel the claimant to buy his land at his price. The claimant’s
action failed as the defendant had a right to extract the water and his motive was irrelevant.

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

There are exceptions to this principle.

For example, malice may be relevant to liability without being part of the definition of the
tort. In private nuisance the question is whether the defendant’s behavior is reasonable and a
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bad motive (malice) may be a factor in deciding that an act in a nuisance.

In Christie v Davey. The plaintiff had been giving music lessons in his semi-detached house
for several years. The Defendant irritated by the noise banged on the walls, shouted, blew
whistles and beat tin tray’s with malicious intention of annoying his neighbour and spoiling
the music lesson. An injunction was granted to restrain the defendant’s behavior.

In Hollywood Silver Fox Farm v Emmett [1936] the defendant, after a quarrel with the
claimant, made arrangements for guns to be fired close to the border of his own land and that
of the claimant during the breeding season of the claimant’s silver foxes. He was aware that
the foxes were sensitive to noise at this time. An injunction was granted to restrain him.

This case must be distinguished from Bradford Corporation v Pickles as in Christie and
Emmett, the actions of the respective defendants in making a noise on their own land must be
judged against the interest of neighbouring occupiers. There is neither an absolute right to
make noise nor an absolute protection from noise. Once again, the essential task of the tort of
private nuisance, attempting to balance conflicting interests, is apparent. The reason for
making the noise may become relevant factor in determining whether the amount of noise is
an unreasonable interference.

Negligence

Negligence is a tort in its own right but the word is used here in the sense of careless conduct.
In practice, most decided torts cases turn on negligence. It is important to note that it does not
truly describe a state of mind; when a court finds a defendant not to be negligent, it is making
an assessment of his conduct by looking back to the time when that conduct cased harm to
the claimant. The person who totally disregards the safety of other but does not injure them
may be morally reprehensible but is not guilty of negligence; the person who tries his best
and still falls below the relevant legal standards of behavior is liable in tort for damages he
causes.

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

Strict Liability

It is not always necessary to prove fault and carelessness in order to establish liability in tort.
Sometimes tort holds a defendant liable even when that defendant has taken every reasonable
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care to avoid an accident - that is, the law imposes strict liability on the defendant. An
example of strict liability (typically called vicarious liability) is the liability of an employer
for the torts that an employee commits in the course of the employer’s business.

Another example of strict liability is liability for dangerous substances that escapes and cause
damage to another person’s use and enjoyment of land( See Rylands v Fletcher [1868]; there
too it is not necessary to prove that such damage was the result of carelessness and fault.

Intention, Motive, Negligence and Recklessness

An obligation to make reparation for damage caused by a wrongful act arises from the fault,
and not from the intention. An invasion of the civil right of another is in itself a legal wrong,
carrying with it liability to repair its necessary or natural consequences, in so far as these are
injurious to the person whose right is infringed, whether the motive which prompted it be
good, bad or indifferent.

A thing that is not a legal injury or wrong is not made actionable by being done with a bad
intent. It is no defense to an action in tort for the wrong –doer to plead that he did not intend
to cause the damage, if damage has resulted owing to an act or omission on his part, which is
actively or passively the effect of his volition.

A want of knowledge of the illegality of his act or omission afford no excuse, except where
fraud or malice is the essence of that act or omission. For every man is presumed to intend
and to know the natural and ordinary consequences of his acts. The defendant will be held
liable for the natural and necessary consequence of his act, whether he in fact contemplated
them or not. See Scott v Shepherd- the lighted squib case.

The lesser state of mind may be regarded as negligence or recklessness. These distinction
have been illustrated by admirable illustration by Professor Street.

“if a man throws a stone at a woman, his trespass to her person is intentional, that he threw it
because she had jilted him would be immaterial in determining his liability in trespass- that

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

would be his motive. If he did not throw the stone for the purpose of hitting her but ought to
have foreseen that it was likely that the stone would hit her, his act would be unintentional
but nevertheless negligent. If the stone hit her solely because it rebounded off a tree at which
he had thrown it his conduct would be voluntary; and the hit would be accidental. But, if Page | 13
while he was holding the stone in his hands, a third party seized his arm and by twisting it
compelled him to release his hold on it, whereupon it fell on the woman, his conduct would
be involuntary and could never give rise to a liability on his part..”

NB: in the case where the stone thrown at a tree rebounds and hits the woman it is assumed
that the risk that the stone on rebound may hit the woman could not be reasonably foreseen
which negatives negligence, and therefore, it is an accident though the act of throwing the
stone is voluntary. In this case also there will be no liability

Where the third person twists the arm of the person holding the stone and the stone gets
released, the act of the person holding the stone is involuntary and so he would not be liable
for trespass; but, the person twisting the arm and compelling the release of the stone so that it
may hit the woman will be guilty of trespass.

Malfeasance: Misfeasance: and Non-feasance

Malfeasance- refers or applies to the commission of an unlawful act. It is generally applicable

to those unlawful; acts, such as trespass, which is actionable per se and do not require proof
of negligence or malice.

Misfeasance- this term refers or is applicable to improper performance of some lawful act.

Non-feasance- applies to the failure or omission to perform some act, which there is an
obligation to perform.

Fault

Liability for tort generally depends upon something being done by a man which can be
regarded as a fault for the reason that it violates another man’s right. But liability may also
arise without fault. Such liability is known as absolute or strict liability.

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 UNIVERISTY OF NAIROBI
Faculty of Law
General principles of Liability- Principle of Tort Law

Consequently the law of tort presupposes two extreme i.e. non-liability even where there is a
fault and of liability without a fault.

As between these two extreme are the variety of intentional and negligent wrongs begging the
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question whether there is any consistent theory of liability, all that can be said is that it
wholly depends upon flexible public policy, which in turn is a reflection of the compelling
social need of the time.

Most torts are based on the fault principle. Under this principle, it is necessary to establish
some fault on the part of the wrong does because he can be made liable in tort. A person is
said to be at fault where he fails to live up to some ideal standard of conduct set by law.
Three elements are relevant in the determination of fault, and any one of them may be relied
upon:-

(i) Intention:

Where a person does a wrongful act desiring that its consequences should follow, he is
said to have intended it; and to that extent there is some amount of fault on his part.

(ii) Recklessness:

An act is said to be done recklessly where it is done without caring whatever its
consequences might be. Recklessness, as such constitutes fault on the part of the
wrongdoer.

(iii) Negligence

a person is also at fault where he does a wrongful act negligently i.e. where the
circumstances are such that he ought to have foreseen the consequences of his act and
avoided it altogether. (Here, we are concerned with negligence as an element of fault).

The deficiencies of a fault –based system in providing speedy compensation for accident
victims who suffer personal injuries are now frequently debated. Schemes to provide
compensation without proof of fault are proposed in certain fields of activity, for example in
medical negligence cases.

END.

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