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PRELIMINARY MATTERS
• Derived from tortus: meaning broken or twisted
• Obligation is based on the operation of law independent of
the consent or agreement of parties.
- Iura in rem: rights against all persons
• Aimed essentially to maintain the status quo. Also:
- Protection of certain interests against certain types of
wrongful behaviour.
- giving redress to wrongs suffered by individuals through
monetary compensation.
• An act can be both a tort and a crime.
• Springs from 3 writs:
i. Trespass vi et armis et contra pacem regis
ii. detinue
iii. Trespass on the case
Trespass vi et armis (direct damage)
• Direct unauthorised act by the defendant
• Actionable per se
- Trespass to the person- vi et armis
- Trespass to goods- de bonis asportatis (not per se)
- Trespass to land- quare clausum fregit
Trespass on the case (Consequential damage)
• Responsible for greater part of modern law of torts. E.g.:
Nuisance, conversion, deceit. Defamation, malicious
prosecution, negligence
• Actionable upon prove of actual damage
Basis of liability
• Liability is for misfeasance i.e. positive actions causing
damage
• No liability without fault
- Except Ryland’s v Fletcher: strict liability
• Nominate torts refer to specific interests of the P which are
infringed and define conduct which constitutes the wrong e.g.
false imprisonment. Negligence is an exception
• Fault: based on either intentional act or negligence of D
i. Intentional conduct: party’s inadvertence to his conduct
and its consequences combined with a desire for those
consequences.
- Proved where the person doing the act knows of the
substantial certainty of the result.
- Prove of mere foreseeability: recklessness or negligence
ii. Negligence (as a mental element of intentional torts): total or
partial inadvertence of the D to his conduct or its
consequence.
• Objective approach is used to determine intention
• Law looks at the effect produced to determine whether D’s
act was so calculated to produce some effect that an intention
to do so should be imputed to him
“If in the circumstances, he had knowledge that certain consequences will
substantially result from his act, then he had the desire (intends) for those
consequences. (Streets on Torts)
TRESPASS TO PERSON
1. BATTERY
Intentional application of force to another by direct means or
through unwelcome physical contact, irrespective of whether
intent to harm or hostility is involved.
• Elements (6)
i. Direct act: D’s conduct must have caused the basis of the P’s
complaint.
- Scott v shepherd: D threw a squid in a market place which
subsequently injured P.
P. Vitoh & Uncle Rollo: Torts Summary
ii. Voluntary act: refers to whether the D was in control of his
actions.
- Gibbons v Pepper: horse on which D was running took fright
and runaway with him injuring P. Held to be battery as he was
the one riding the horse and no one whipped the horse.
iii. Positive act: “not doing is not trespass”. Actual exertion
required.
iv. Intentional or negligent act
v. Physical contact with the person of the P:
- Miller v AG: In order to found an action in assault and battery,
there must have been a direct and intentional application of
physical force to the person of the P by the D, such as a blow
inflicted with the hand or with a weapon or some other object.
- It is trespass to take fingerprints if a person in custody but
not yet convicted or committed for trial without his
consent [Dumbell v Roberts]
vi. Lack consent [Nash v Sheen]
- Express consent
- Presumption of consent: presumption of consent to all
non-hostile contacts merely incidental to living in a
community.
- Privileged contact (allowed by law): looks at nature of the
act and the intention with which the act was done.
Cole v turner (Holt CJ): “the least touching of another in anger is
battery. If 2 or more meet in a narrow passage and without any violence
or design of harm, one touched the other gently, no battery. But if one in
a desire to gain advantage shoves another aside in an inordinate and
violent manner, this is trespass.”
• Trespass is actionable per se but proof of damage will attract
consequential damages [Miller V AG]
2. ASSAULT
• An intentional conduct which puts a person in reasonable fear
or apprehension of imminent danger.
• To constitute an assault there must be an act constituting a
threat to do personal violence to the party complaining
coupled with a present ability to carry out that threat.
- Read v Coker: D’s workmen surrounded P, and threatened to
break his neck if he did the not leave.
• Has all elements of battery except physical contact
Miller v AG: To point a loaded revolver at another person in such a
hostile manner and within a shooting distance as in the present case, and
which conduct put the other person in reasonable fear or apprehension of
an immediate battery constituted an assault
• Mere words per se no matter how menacing donot constitute
assault.
- Word that create a reasonable apprehension of imminent
physical contact constitute assault
▪ R v Wilson: “get out the knives”
- Words accompanying an act can negate assault.
▪ Tuberville v Savage: P put his hand on his sword and said
“if it were not the assize-time, I would not take such
language from you”
Bruce v Dyer: Usually, when there is no actual intention to use violence
there can be no assault. When there is no power to use violence to the
knowledge of the P there can be no assault. There need not be in fact any
actual intention or power to use violence, for it is enough if the P on
reasonable grounds believes that he is in fact in danger of violence. So, if
a person shakes his fist at another, the person so assaulted may strike
back, if on reasonable grounds he believes that he is in danger.
3. UNLAWFUL ARREST
Common Law
Criminal Procedure Code, 1960 (Act 30)
Articles 14 & 21 of Constitution
- Art. 14: protection of liberty except for lawful arrest or
custody by the State

- Art 21: general freedoms incl. movement
• Police officer’s powers of arrest at common law:
Christie v Leachinsky (Viscount Simon): ‘(1) If a policeman arrests
without warrant upon reasonable suspicion of felony, or of other crime of
a sort which does not require a warrant, he must in ordinary circumstances
inform the person arrested of the true ground of arrest. He is not entitled
to keep the reason to himself or to give a reason which is not the true
reason. (2) If the citizen is not so informed but is nevertheless seized, the
policeman, apart from certain exceptions, is liable for false imprisonment.
(3) The requirement that the person arrested should be informed of the
reason why he is seized naturally does not exist if the circumstances are
such that he must know the general nature of the alleged offence for which
he is detained. (4) The requirement that he should be so informed does
not mean that technical or precise language need be used. The matter is
a matter of substance, and turns on the elementary proposition that
in this country a person is, prima facie, entitled to his freedom and is
only required to submit to restraints on his freedom if he knows in
substance the reason why it is claimed that this restraint should be
imposed. (5) The person arrested cannot complain that he has not been
supplied with the above information as and when he should be, if he
himself produces the situation which makes it practically impossible to
inform him, e.g., by immediate counter-attack or by running away.
1. Arrest with a warrant (Sec 71-81 of Act 30)
• Warrant can be issued only by a judge upon compliant or
charge made before him on oath.
• Warrant remains in force until execution or cancellation by
the court
• Person executing the warrant must bring arrested person must
be brought before the court mentioned in the warrant with an
endorsement showing place and time of execution.
• Police can search premises of a lawfully arrested person and
seize material relevant to the prosecution of said crime.
• Requirements of warrant: Must
- State briefly the offence with which the person against
whom it is used is being charged
- Indicate the name or other description of the person
- Order the person(s) to whom it is directed to apprehend
the person and bring him before the issuing court or other
court with jurisdiction to answer the charges against him.
2. Arrest without a warrant (Sec 10 & 12 of Act 30)
2.1. Arrest by a police officer (Sec. 10)
• May arrest without warrant any person who:
- Commits an offence in his presence
- Obstructs a police officer in the lawful execution of his
duty
- Has escaped or attempted to escape from lawful custody
- Had in his possession any implement adapted or intended
for use in the unlawful entry of any building and gives no
reasonable excuse for same
- Has in his possession anything which may be reasonably
suspected to be stolen property.
• May arrest without warrant any person whom he suspects
upon reasonable grounds of:0
- Having committed a crime
- Being about to commit a crime where
▪ there is no other practical way of prevention of the
crime
▪ such person is found in a yard, highway or other
place at night
- Being a person who a warrant of arrest has been issued
- Being a deserter of the armed forces
- Having committed an act outside GH which would have
been a crime if committed in GH.
• Test for reasonableness:
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- Dallison v Caffrey (Lord Denning): “whether a
reasonable man, assumed to know and possessed of the
information which in fact was possessed by the D would
believe that there was reasonable and probable cause.”
2.2. Arrest by a private person (Sec. 12)
• May arrest without warrant any person who in his presence
commits any offence:
- Involving the use of force/violence
- Whereby bodily harm is caused to any person
- In the nature of stealing or fraud
- Involving injury to public property
- Involving injury to property owned by or in the lawful
care/custody of the private person
• May also arrest any person who he reasonably suspects of
having committed any of the 5 offences
- The offence must have actually been committed
• For the arrest to be lawful:
- The basis of the arrest must be reasonable
- The arrest must relate to one of the 5 offences
- The offence must actually have been committed by the
person arrested.
Walter v Smith: D arrested P upon suspicion that he had been stealing
from his bookstore and selling in his own.
Held: Where a person instead of having recourse to legal proceedings by
applying for a judicial warrant for arrest or laying an information or
issuing other process well known to the law gives another into custody,
he takes a risk upon himself by which he must abide, and, if in the result,
it turns out that the person arrested was innocent and that therefore the
arrest was wrongful, he cannot plead any lawful excuse.
When Arrest becomes unlawful; If
i. The person is not told he is being arrested.
- Asante v The Rep: where the policeman merely told the
A that he was wanted at, or being invited to the police
station, A was not legally obliged to go there for a mere
chat”
ii. The arrest does not follow due procedure set out under law
empowering the arrest.
iii. The person is not told true reason for arrest.
iv. The officer has a warrant but not at the time of arrest and
person was not at time committing a crime that permits arrest
without warrant
v. More restraint than necessary to prevent his escape is used.
Exceptions: circumstances under which these infractions would
not make an arrest unlawful.
i. if the person is caught in flagrante delicto i.e. caught red-
handed
ii. if the person makes it impossible to carry out due procedure
- Asumani Bugembe v AG: P assaulted police officer and
pulled him out of shop before he could lay hands on P and
arrest him
4. FALSE IMPRISONMENT
• Protects rights guaranteed under Art 14,15 & 21 of Const.
Art 14: Any person who is unlawfully arrested, restricted or detained by
any other person shall be entitled to compensation therefrom that other
person.
• Founded on imprisonment and absence of justification.
Assumption is that D departed from due process.
Appiah v Mensah: False imprisonment is a complete deprivation of
liberty for any time, however short, so long as it is without lawful excuse
• Elements:
i. Imprisonment without justification by the defendant.
- Warner v Riddiford: To constitute imprisonment it was
not necessary that the person should be locked up within

4 walls but that he was restrained in his freedom of action
by another.
ii. The imprisonment must be total. i.e. confined in all
directions. There no reasonable means of escape or that the
P, as a reasonable person, did not know and was not expected
to know of any reasonable means of escape.
- Merely failing to facilitate the departure of a person from
one’s premises does not amount to F.I
iii. Direct act from the D i.e. the D must have imprisoned the P
by himself or caused a law enforcement agent to effect the
imprisonment.
- Narwu v Armah: Where a complainant gives
information to a police officer and the officer acts
according to his own judgement and makes an arrest, the
C incurs no liability for F.I. But where the C does not
merely give information but directs the office to effect the
arrest, the officer in that case is considered as the servant
of the C and the C will be liable for F.I
- Where information given by the C on which the P is
arrested is false to C’s knowledge, F.I will lie [Musa v
Limo Wulana
iv. Intentional act of the D. i.e. the D, as a reasonable person,
must have had foresight that his act would result in the
imprisonment of the plaintiff.
- Merely failing to facilitate the departure of a person from
one’s premises does not amount to F.I.
▪ Herd v Weardale Steel: company refused to
convey miner who had stopped worked before time
and kept him there until the end of his shift.
MALICIOUS PROSECUTION (an action on the case)
• Assumption is that although the process is regular it has been
perverted.
• Time does not start to run until the P’s acquittal
• Elements (Musa v Limo-Wulana):
i. Proof of prosecution by the D: i.e. must establish that D
himself conducted the prosecution or procured, instigated,
directed, ordered or was actively instrumental in the
prosecution being set in motion.
- D is not liable if he merely reported the matter to the
police who do their own investigation before charging.
- To go with the police to point a person out is not to
prosecute him.
- D is liable if he lies to obtain the prosecution of P.
- The prosecution must be criminal.
▪ Civil Exceptions: bankruptcy and winding up
ii. Termination of trial in P’s favour: P must have been
acquitted and discharged of the offence. Includes
- conviction on lesser offense.
- Acquittal on appeal
- An entry of nolle prosequi by the AG or his authorised
official under Article 88 of constitution.
Nana Akuamoah Boateng v Yeboah: Y was asked after being found
guilty after arbitration for paying money to Kontihene without N’s
consent, to pay moneys as pacification. After payment they reported
N to the police for extorting from them. When police refused to
prosecute, the institutes private prosecution in the district court. Prima
facie case was found against N but AG subsequently entered a nolle
prosequi. Held: on the evidence there was want for reasonable and
probable cause from which in the circumstances an inference of
malice could be made. The prosecution had damaged the fame and
reputation of R.
iii. Absence of reasonable and probable cause:
Hicks v Faulkner: an honest belief in the guilt of the accused based
upon a full conviction, founded upon reasonable grounds, of the
existence of a state of circumstances, which, assuming them to be
true, would reasonably lead any ordinary prudent and cautious man,
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placed in the position of the accuser to the conclusion that the person
was probably guilty of the crime imputed.’
Depends on
- The relevant facts known to the D at the time the
prosecution was initiated. (objective test)
- The genuineness of the D’s belief based on those facts
(subjective test)
- Legal advice from counsel who is fully briefed and
apprised of the full facts will absolve D from liability.
- Want of reasonable and probable cause should be
established by itself and not inferred from the existence of
malice.
iv. Malice
- Prosecution of P on any motive for binging him to justice.
- Where justice is present but other motives are present as
well, the court will determine the primary motive.
v. Damage: Saville v Roberts:
- Name
- Person (i.e. he could lose his life or liberty)
- Property (i.e. if he is made to incur charges and expense
for his defence)
THE RULE IN WILKINSON V DOWNTON
• An action on the case for intentional affliction of physical
harm by indirect means.
• Elements:
i. Deliberate or wilful act or misrepresentation
ii. Calculated to cause harm to the P
iii. Actually causing harm to the P
Wilkinson v Downton: D played a practical joke on P telling her, falsely,
that her husband had been involved in an accident and was seriously
injured. She suffered nervous shock and other physical consequences
spending large sums on medical expenses.
Held: an action would lie to recover the expenses on medical treatment.
“It is difficult to imagine that such a statement, made suddenly and with
apparent seriousness, could fail to produce grave effects under the
circumstances upon any buy an exceptionally indifferent person and
therefore an intention to produce such an effect must be imputed. And it
is no answer in law to say that more harm was done than anticipated.”
INTENTIONAL INTERFERENCE TO PROPERTY.
1. TRESPASS TO LAND (quare clausum fregit)
• Intentionally or negligently entering or remaining on or
directly causing any physical matter to come into direct
contact with land in the possession of another.
• Quare clausum fregit: because every man’s land is in the eye
of the law, enclosed and set apart from his neighbours either
by actual physical or invisible boundaries.
• protects possession not ownership
• Elements
i. Direct act
ii. Positive act: i.e. affirmative act by D
- An omission to act leading to interference with land does
not constitute trespass.
iii. Physical Interference with Land.
- Lavender v Betts: landlord, served a notice to quit, and
obtained entry to the property by deceit to the wife of the tenant
whereupon he proceeded to remove the doors and windows so
that the P could no longer live there. Held: landlord had
committed trespass
iv. Voluntary act
- It is immaterial whether the D was aware he was
trespassing.
- If through the actions of others D trespasses on the P’s
land, those others not D will be held liable. Smith v Stone
- Mistake either of law or fact is not a defence

v. Lack of consent.
- Where a person enters someone’s land by his consent, he
becomes a trespasser if he refuses to leave when the
consent is revoked.
- He must however, be given reasonable time to leave the
premises.
- Forcing objects or causing some foreign matter to enter or
come into physical contact with another’s land is trespass.
▪ Foreign matter: anything with size or mass e.g. gas
vi. Intentional /negligent.
• Capacity to sue
- Actionable at the suit of the person in possession or with
right of immediate possession of the land at the time when
the trespass was being committed.
▪ possession: occupation or physical control of the
land and the power to exclude others.
- Wuta Ofei v Danquah: D built on Ps land although P had put
pillars on the land after acquisition. Held: trespass
-Proof of ownership or occupation is prima facie proof of
possession.
- An owner not in possession can only sue if act affects his
reversionary interests
- Trespasser in possession incl. adverse possessor has a title
good against the whole world except the true owner
[Owiredu v Mim Timber]
- A tenant may sue landlord during tenancy
- If a person uses a public access route for purposes other
than passing, the owner of the land on which the road lies
can sue in trespass
• No capacity to Sue
- Mere use of land, without exclusive rights of possession
- Mere occupation of premises
▪ E.g. employer accommodation, hostel hotel
• Subject Matter
- General rule is that he who owns the land is presumed to
own everything “up to the sky and down too the centre of
the earth” i.e. owns the surface, sub-soil and airspace.
- Bernstein of Leigh v Skyviews General: “the right of the
owner of land in the airspace above his land is restricted
to such height as is necessary for the ordinary use and
enjoyment of his land and the structures on it.”
- Section 29, Ghana Civil Aviation Act, 2004 (Act 678):
no action can lie in respect of trespass or nuisance by
reason if transient harmless incursion of an airspace by an
aircraft.
2. TRESPASS TO CHATTELS**
• Committed by intentionally or negligently interfering with a
chattel in possession of another.
• Provides wider cover of protection than conversion because a
mere act of interference is sufficient and there is no need to
prove special damage.
o Fouldes v Willoughby: the slightest touching of a
chattel is actionable as trespass.
• The D’s act must be the act which causes the trespass.
• The interference must be deliberately or intentionally made.
o No liability for involuntary or accidental acts.
• Capacity to sue
- The D’s act must disturb the plaintiff in his possession of
the chattel.
- The chattel must be within his control of physical grasp or
otherwise
- Hamps v Darby: domesticated animals as long as they have
animus revertendi are in the possession of their keeper who has
right to immediate possession.
• Exceptions to the rule on possession
- Trustees for chattels in the hands of beneficiaries.
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- An executor or administrators can sue for interferences
which occurred before probate or letters of administration.
- An owner of franchise which entitles him to goods can sue
in relation to interference on goods before he has actual
possession.
- Bailment
▪ For fixed term: bailor has no possession. Only
bailee can sue
▪ At will: both bailor and bailee can sue third parties.
3. CONVERSION***
Kuwaiti Airways v Iraqi Airways: Conversion is the principal means
whereby English law protects ownership of goods. Misappropriation of
another’s goods constitutes conversion.
• Covers wrongly taking, detaining or disposing of chattel
belonging to another
• Historically name trover and modelled upon detinue sur
trover.
• Conversion is an intentional interference or dealing with the
chattel which seriously inconsistent with the possession or
right to immediate possession of another
- Fouldes v Willougby: “a simple asportation of a chattel,
without any intention of making further use of it although
it may be sufficient foundation for an action of trespass, is
not sufficient to establish a conversion.”
• Remedies: mere pecuniary compensation
• Capacity to sue:
- P must have either actual possession or a right to
immediate possession at the time of the interference.
- Mere possession without title is sufficient to maintain an
action.
▪ Person in possession has sufficient title against the
wrongdoer who has not rights at all.
▪ Armory v Delamire: chimney sweeper boy sued
goldsmith in conversion for stones stolen out of
jewel he found.
- Owner out of possession can sue in an action n the case
for damage done to his reversionary interest which respect
to interferences which would make the reversionary
interest valueless.
• Possession connotes the power to control and the intention to
exclude all others from the enjoyment of the chattel. i.e.
animus possidendi and factum.
- Occupier or owner of a house or land to which things are
attached has a right to them.
▪ Right of true owner will prevail against the finder
- If they are loose on the land, the nature of the chattel, the
extent of public access to the land, whether the owner
occupies the land etc will be relevant in deciding whether
the owner of the land has the necessary animus and
factum.
• Bailment: bailee of goods may sue in relation to chattels in
his charge.
- Bailor can sue as well if bailment is at will
- An involuntary bailee is not liable where although he
takes reasonable steps to restore goods delivered to him to
its owner, he mistakenly delivers the goods to another
person who he honestly beliefs is the true owner or his
agent, thus misdelivering the goods.
- He will be liable if he was negligent or disposes of the
goods.
• Right to immediate possession: The P must be
unconditionally entitled to assume the possession of goods if
he so wishes.
- A buyer under sale transaction not involving credit has no
sufficient interest to sue unless he has paid the purchase.

-Buyer of goods sold on credit may sue if there is no
seller’s lien on the goods.
• Conversion is based on intentional conduct.
- No need to prove an intention to consciously do wrong.
- Negligence cannot ground an action.
- Ignorance and accident are no defence
• Strict liability i.e. no need to prove fault on D’s part.
Youngdong Industries v Roro Services (Date-Bah): Conversion is a
tort of strict liability. In other words, if an at amounts to conversion, it is
irrelevant to the liability of the tortfeasor whether he/she is aware of that
fact or not, or is at fault.
• Subject matter
-Tangible property: i.e. chattels that can be lost and found.
-Intangible property (chose in action) if represented in the
ordinary course of business by a special written document
e.g. bonds
• Specific examples of conversion
- Where a person in possession of P’s chattel refuses to
hand it over upon demand.
▪ Withholding for reasonable time to investigate an
ascertain the title of the person demanding does not
amount to conversion.
- Denying P the right to have access to his own chattel.
▪ Act must constitute absolute denial and
repudiation of P’s rights.
▪ African Drug v Kumasi City Council: D locked
P out of store for non-payment of rent thus
preventing P form accessing his import licence for
drugs. P’s goods were auctioned because he was
unable to take delivery.
4. DETINUE***
• Any legally unjustified detention of a P’s goods.
• P would have to prove that he had right of immediate
possession and that D refused to hand the chattel over on
demand.
• Coterminous with conversion.
• Remedies
- The value of the thing as assessed
- Specific restitution or else the value & damages from its
retention
- Specific restitution & damages for its detention.
Differences between detinue & conversion
• In detinue P is liable to D even where he is no longer in
possession of the goods unless he can show the loss was
accidental.
• Action in Detinue is in rem; conversion is in personam.
• Value of goods assessed
- Conversion: as at the time pf the conversion
- Detinue: at the time of the judgement.
Standard Chartered Bank (GH) v Nelson: “we think the
confusion…arises from the difficulty of counsel and the judges in
appreciating the thin but clear line between the torts of conversion and
detinue. In the former, the action is for restitution intergrum, and damages
may be exacted on account of the special quality of the chattel. In the
latter, the dealing with the chattel is unlawful and the action is for the
recovery of the chattel or its value together with damages for
consequential loss where so warranted or indicated.”
DEFENCES TO INTENTIONAL TORTS TO
PERSON & PROPERTY.
1. Inevitable mistake: refers to action where the D did not act
either intentionally or negligently.
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- “an accident not avoidable by any such precautions as a
reasonable man doing such an act there and then would be
expected to take.
- Onus of proof is on the P to prove that D acted negligently
or intentionally.
2. Consent
- Anyone who consents to an act cannot complain of
trespass: volenti non fit injuria
- Must relate to the act complained of and must be freely
given.
- Vitiated by fraud, or if obtained by show of authority,
threat of force or actual use of force; or intoxication.
3. Self-defence: D must show that he committed the trespass in
order to:
- defend himself
- That in the circumstances it was reasonable for him to do
so
- That he used reasonable force.
4. Defence of the person of another: justify battery in defence
of another incl. a stranger from felonious attacks.
5. Defence of one’s property: a person may use reasonable
force to defend land or chattel in his possession against any
person threatening to commit or committing trespass to the
property.
- Force is not justified if the threat is not imminent or has
passed.
6. Necessity
7. Abatement of Nuisance:
Lemmon v Webb: “I think it is clear that a man is not bound to permit a
neighbour’s tree to overhang the surface of his land, however long the
space above may have been interfered with by the growth of the tree. Nor
can it, I think be doubted that if he can get rid of the interference or
encroachment without committing a trespass or entering upon the land of
his neighbour, he may so whenever he pleases and that no notice or
previous communication is required by law.”
8. Discipline: discipline of the person complaining or on whose
behalf the compliant of trespass is being lodged.
- The force used must be reasonable.
9. Contributory negligence
NUISANCE
Based on annoyance and inconvenience. Difference between
public and private lies in the degree and range of exposure.
1. PUBLIC NUISANCE
• Protects public health, decency, convenience and safety.
• Crime under Sections 285-298 of Act 29.
• Its effect must be on the public as a whole
• Individual may sue in torts if he can show that he has suffered
damage over ad above that suffered by the public
2. PRIVATE NUISANCE (action on the case)
• Lies in general for indirect non-trespassory interference
• D is guilt if private nuisance if does an unreasonable act
which either
- Indirectly causes physical injury to land
- Substantially interferes with another’s use or enjoyment
of his land or both.
- Reasonableness: The court looks at both the D’s conduct
and its effect on the P to determine reasonableness.
- Bamford v Turnley: Those acts necessary for common
and ordinary use and occupation of land and houses may
be done, if done reasonably without risking an action in
nuisance e.g. burning weeds
• Are Surrounding circumstances are relevant?

- Yes: If interference is alleged with P’s enjoyment
- No: If interference is alleged with material injury to
property.
• Factors the court considers:
i. Purpose of D’s conduct-mental state: if the D’s primary object
in doing an act is to injure his neighbour then that conduct is
in law unreasonable.
ii. Suitability of the locality: whether D is carrying out his activity
in a place suitable or designated for it. E.g. using residential
area for prostitution.
iii. Nature of use to which D puts the land: natural user is not per
se conclusive as to reasonable use.
- Where conduct is inevitable but could be mitigated it will
be held unreasonable if not mitigated.
- Duration of unreasonable conduct is not conclusive i.e.
can be on temporary conduct.
iv. Authorised Acts-Statutory Duties: one must use reasonable
care when operating under a statute.
v. Nature of damage: recovery of damages depends on
foreseeability by the D of the relevant type of damage [Wagon
Mound (No. 2)]
- Material Injury to Property: irrelevant to plead
suitability of the locality.
▪ Proof of sensible damage to property
▪ Injury must be substantial
▪ Injury must have diminished the value of the
property.
- Substantial interference with enjoyment (i.e. personal
discomfort or inconvenience)
▪ Interference must be substantial
▪ P need not prove injury to health, loss of sleep is
sufficient
▪ suitability of the locality is important
▪ interference may be substantial even though
temporary
• Capacity to sue and be sued
- One with proprietary or other interest in the land may sue.
▪ Owner can sue if he has possession as well as the
tenant
▪ Reversioner can sue if he can prove that his
proprietary interest in the reversion has been
permanently interfered with.
- The one who created the nuisance can be sued even if
done through his servants or agents
▪ He is liable for acts of independent contractors
only if the act done is one which in its very nature
involves a special danger of the nuisance being
complained of.
- An occupier of land continues a nuisance if with
knowledge or presumed knowledge of its existence he
fails to take steps to bring it to an end, when he has ample
time for doing so.
▪ He adopts the nuisance if he makes use of the
structure causing a nuisance.
- Prima facie D is not liable if he did not create the nuisance
but if in entering the premises he knew or ought to have
known of it, then he is liable.
DEFENCES TO NUISANCE
1. PRESCRIPTION (only private): lies where D can show the
he has acquired a right to commit the nuisance.
- Acquires the rights if he has committed the act openly and
without a show of force for 20years before the action.
- Nec vi, nec clam, nec precario
2. CONSENT
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3. STATUTORY AUTHORITY (complete defence): if a
statute authorised an activity, then D is not answerable for
inevitable interference.
- Onus of proof inevitable interference lies on D
4. ABATEMENT OF NUISANCE
REMEDIES
1. Damages: P is entitled to compensation. May recover for:
- Physical damage to his property
- Depreciation in the value of his property
- Loss of business from the nuisance
- Personal injuries
2. Injunction
3. Abatement
RYLANDS V FLETCHER (Blackburn J)
• Considered one of the most important surviving cases of
absolute or strict liability in torts.
• The law holds a person liable for harm caused by his act
whether he did it intentionally or negligently i.e. without fault
- D will be liable even though he exercised due care to
prevent the escape.
“a person, who, in the course of a non-natural user of his land,
accumulates or is held to be responsible for the accumulation on it of
anything likely to do harm if it escapes, is liable for the damage to the use
of the land of another, which results from the escape of the thing from his
hand. [Streets on Torts]
• Foreseeability or at least knowledge if the risk is a
prerequisite to the recovery of damages
• Elements
i. “Non-natural user” of the land: special use of the land which
use brings with it increased dangers.
- It must not be the ordinary use or use for the general
benefit.
ii. “Things” within the rule: things likely to do mischief if they
escape.
- It need not be dangerous in themselves but must have the
character of causing danger if they escape.
- Only tangible things eg. Gas, humans, water.
iii. Accumulation: will not apply to things which accumulate or
grow on the land naturally
iv. Escape: “Escape for the purposes of applying R v F, means
escape from a place where the D has occupation of or control
over land to a place which is outside his occupation” [Read v
Lyons]
• D is only liable if the thing escaping causes damage.
- D will be liable for any injury to land as a result of the
escape of the thing as well as consequential damage
• P with proprietary interest in the land onto which the thing
which caused the damaged escaped can recover.
- Occupier can recover for personal injuries.
• Defences
i. Consent: If P impliedly or expressly consents to the
accumulation of the thing which escapes, he cannot sue if it
escapes.
- P can recover if he establishes negligence where consent
is proved.
ii. The Act of Third Parties: if the escape is caused by the
deliberate unforeseeable act of 3rd parties.
- D is liable if he could have foreseen or prevented the act
of the 3rd parties and did not,
iii. Act of God: if an escape is caused, through natural causes and
without human intervention “in circumstances which no
human foresight can provide against, and of which human
prudence is not bound to recognize the possibility”.

- For an extraordinary occurrence to amount to an act of
God, it must be the kind of thing which happens rarely or
happens once 20, 50 or more years.
ECONOMIC TORTS
ACTS done intentionally to cause harm to another’s right to earn
a living by unlawful means.
1. PASSING OFF (Purest of economic torts)
• Aimed at dishonest competitive practices.
• Protects traders against misrepresentations aimed at their
customers, which are calculated to damage their goodwill or
trade.
• Jif Lemon Case: “the essence of the action for passing off is
a deceit practised on the public and it can be no answer, in a
case, where it is demonstrable that the public has or will be
deceived, that they would not have been if they were more
careful, literate or more perspicacious”.
• Examples:
- Selling products in same type of packaging which is
associated with that of the competitor without
distinguishing them in some way.
- Using same name as competitor
- Failure to correct customer’s self-induced
misapprehension where he says or does something that
shows that he is mistaking his product for a competitor’s.
2. INTERFERENCE WITH CONTRACTUAL RELATIONS
• Lumley v Gye principle
• Committed if a person, without justification, knowingly and
intentionally interferes with a contract between 2 other persons
• The procurer liability is dependent in the contracting party
having done an actionable wrong and is held liable as an
accessory to the liability of the contracting party.
• Factors (D.C Thompson v Deakin):
- There must be a valid contract
- Intention requires knowledge of the contract. i.e. that the
D must turn a blind eye to it and intend to interfere with it
- Recklessness is sufficient
- No liability if inducement is to terminate contract lawfully
- P must be the intended target
• Forms of Inducement:
i. Direct Persuasion: may be lawful or unlawful
- breach must be a reasonable consequence of the
persuasion.
- D may act through an intermediary
- Mere advice is not persuasion
ii. Direct Prevention (intervention): where D does an
unlawful act to prevent a person from performing his
contract with another.
iii. Indirect prevention or intervention: a breach must be a
necessary consequence of D’s unlawful conduct.
• Defence of justification
3. CONSPIRACY (offshoot of criminal law)
• Consists of an agreement between 2 or more persons to injure
another:
- By unlawful means
- In a combination to do a lawful act to injure
- Doing a lawful act by unlawful means
• Where a combination to do a lawful act to injure is used, it
must be clear that the intention is to damage P rather than to
serve the bona fide and legitimate interests of D.
• Where a D has mixed motives, liability depends on the
predominant one.
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• Defence of justification available
4. CAUSING LOSS BY UNLAWFUL MEANS
• Elements (OBG v Allen)
- A wrongful interference with the actions of 3rd party in
which the P has an economic interference
- An intention thereby to cause loss to P
• Does not include acts which may be unlawful against a 3rd
party but which do not affect his freedom to deal with P.
• Unlawful means: acts against the 3rd party which are
actionable by that 3rd party.
5. INTIMIDATION (Variant of causing loss)
• Committed if D threatens to use
- unlawful means to compel a person to do his wishes to the
detriment of that person.
- Unlawful coercion against A and compels him to act the
detriment of B.
6. INJURIOUS FALSEHOOD
Ratcliffe v Evans: “an action will lie for written or oral falsehood
…where they are maliciously published, where they are calculated in the
ordinary course of things to produce and where they do produce, actual
damage.
• When will an action lie:
- Any type of interest in land, trademarks, patent, trade
names
- where business reputation is maliciously disparaged but
no imputation entitling action in defamation is made.
• Interference with prospective advantage even social
• Test is whether a reasonable man will take the D’s claim in
denigration of P’s goods seriously.
• To succeed P must prove
- malicious statement e.g. by showing D’s absence of belief
in the truth of the statement he made
- The statement must be a false one made about the P or his
property
- There must be a publication i.e. made to a 3rd party
- that the false statement caused him pecuniary loss.
GENERAL NEGLIGENCE (action on the case)
• Liability is based in the general public sentiment of moral
wrongdoing for which the offender must pay.
• Alhassan Kotokoli v Moro Hausa: “in a strict legal analysis,
negligence means more than heedless or careless conduct
whether an omission or commission: it properly connotes the
complex concept of duty, breach and damage thereby suffered
by the person to whom the duty was owing”.
1. DUTY OF CARE
• A person cannot be held negligent in torts unless he owned
some duty to the P and the duty is breached.
• The existence of a duty of care in a given circumstance,
depends to a significant extent if public policy considerations
as perceived by the judges.
• 3 circumstances of duty by precedence: Duty arising from:
- public calling e.g. surgeon
- public office
- control of dangerous things
• Tests for the ascertainment of the existence of a duty:
- Nature of the interest: the interest infringed must be one
which the law protects against negligent conduct.
- The type of injury: the injury must have been such that a
reasonable man would have foreseen and provided against
it.
• In novel situations:

- arises when the person or property of one was in such
proximity to the person or property of another that, if due
care was not taken, damage might be done by the one to
the other.
Lord Atkin; Donoghue v Stevenson: neighbour principle: “the rule that
you are to love your neighbour becomes in law you must not injure your
neighbour... you must take reasonable care to avoid acts or omissions
persons who are so closely 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.
- 3 factors to be considered (Caparo Industries)
i. Reasonable foresight of harm
ii. Proximate relationship between the parties
iii. Whether it is fair, just and reasonable to impose a duty in
the circumstances.
Rescue Cases
• Negligently creating a situation of danger may entail liability
to a rescuer for injury sustained by him or her in attempting to
aid a person imperilled.
• Wagner v Int. Rly Co (Cardozo J): “the emergency begets
the man. The wrongdoer may not have foreseen the coming of
a deliverer. He is accountable as if he had.”
• Videan v British Transport Commission: the right of the
rescuer is an independent right and is not derived from that of
the victim.
- The rescuer can sue even if the victim is guilty of
contributory negligence or is excluded from suing by a
contractual stipulation.
Nervous Shock
• 2 theories:
- Impact theory: shock is only an extension of physical
injury. Therefore, if no physical injury is foreseeable, then
there is no liability for shock.
- Shock theory: nervous shock is a distinct kind of injury.
Test for liability is whether it is reasonably foreseeable
that injury by shock would arise from the D’s negligence.
• Primary victims: where shock is caused to a primary victim
of the negligence, all that the law requires is foreseeability of
harm, not necessarily of shock. [Page v Smith]
• Secondary Victims:
Mcloughlin v O’Brian: P brought an action for the psychiatric effect of
the shock she sustained from seeing the immediate effect of a horrific
accident involving her husband and children in which 1 child died.
- 3 elements to be considered:
i. the class of persons whose claims should be recognised: The
closer the tie the greater the claim for consideration.
ii. the proximity of such persons to the accident: it must be close
in both time and space
iii. The means by which the shock was caused. The shock must
come through sight or hearing of the event or its immediate
aftermath by the P
- Foreseeability in any given set of circumstances is
ultimately a question of fact.
Pecuniary Loss
Hedley Byrne Heller & Partners
• Recovery for loss of profit or gain without any damage to
person or property
• The loss of foreseeable profit should be recoverable only if it
was foreseeable to a specifically identifiable person and not
just a member of an indeterminate group.
• P can recover if the loss:
- Is the immediate consequence of D’s negligence
- Arises from damage to person or property
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- Is consequent upon injury to person or property
• In any other case, the loss will be deemed remote and not
recoverable.
2. BREACH OF DUTY (Standard of Care)
• Involves measuring the D’s conduct against the standard
required of persons engaging in the activity or conduct in
question by the law.
• Standard of care is an objective one: reasonable man
• Reasonable man is the model of the standard to which all
persons are required to conform.
- “the man on the Madina bus” [Bannerman]
- Eliminates the personal equation and is independent of the
idiosyncrasies of the particular person whose conduct is
in question.
• 5 main factors assessed at the time when the harmful conduct
occurred and having regard to the circumstances.
• Factors:
i. The likelihood of injury: whether the D is engaging in an
activity which is fraught with danger.
- The more dangerous the activity, the greater the degree of
care required.
- A person cannot be said to have breached his duty in
respect of injury which is so unlikely that the reasonable
man will not provide against it. [Bolton v Stone]
ii. The magnitude/Seriousness of the risk: the law requires a
degree of care which is commensurate with the seriousness
of the injury risked.
iii. The Importance or social value of the activity engaged in:
where the object to be achieved is of national or societal
benefit, the courts are minded to lower the standard of care.
- Daborn v Bath Tranway: “in determining whether a party is
negligent, the standard of reasonable care is that which is
reasonably to be demanded in the circumstances…The purpose
to be served if sufficiently important, justifies the assumption of
abnormal risk…In considering whether reasonable care has been
observed, one must balance the risk against the consequences of
not assuming that risk”
iv. Expenses involved in safety measures as against the risk:
in the case of very great risk which no precautions can
substantially reduce, the duty of care may be discharged by
ceasing the dangerous operations altogether.
- Where the risk is slight, slight precautions will suffice.
v. Compliance with general and approved practice: whether
the D’s conduct conformed to standard practices accepted as
normal and general by other members of the community in
similar circumstances.
- D must show that the approved practice in the community
itself is reasonable.
RES IPSA LOQUITOR (Evidence & procedure in Negligence)
• Burden of proof lies on the P or the one alleging to show that
D breached duty owed or that P was injured because D failed
to measure up to the required standard of care.
• Res Ipsa Loquitor: the thing speaks for itself
• It is a rule of evidence.
• Arises in situations where fairness requires that the D should
be called upon to explain what happened.
- i.e. in circumstances where the mere fact that an accident
occurs raises an inference of negligence against the D.
• 3 Conditions (Scott v London & St Katherine Docks Co):
i. The instrumentality causing the accident must be within the
exclusive control of the D.
- Control: actual control and the right and opportunity to
control.

- Where P cannot point to the one or any of D’s servants
who is in control, the rule will be invoked so as to make
D vicariously liable.
ii. The accident must be of such a kind as does not ordinarily
happen if proper care is taken
iii. Absence of explanation by D: the maxim cannot be invoked
where the facts are sufficiently known.
- Explanation must be exact: D must show from the
explanation that he was not in breach of his duty of care.
• To rely on the maxim, it is not always necessary that it should
be specifically pleaded, but the facts, from which it is intended
that the presumption should be drawn must be pleaded.
[Nelson v Klutse]
- i.e. fair notice to the D that the maxim is to be invoked.
• A decision that res ipsa applies entitles the P to judgement
unless the D can exonerate himself by either
- giving a true explanation of how the accident occurred
without negligence on his part or
- proving that in all circumstances, he has exercised due
diligence.
3. DAMAGE
• P must have suffered damage out of D’s breach.
- n action for compensation should not be set in motion on
a trivial injury: “de minimus non curat lex”
Causation and Remoteness of Damage
• To establish the relevant causal connection, P has to show that
on a balance of probabilities the D’s breach cause the loss
which he suffered.
• “But for” Test: i.e. would the injury have occurred but for D’s
conduct
• Novus Actus Interveniens: If there is an intervening act
which the wrongdoer could not have foreseen, the D is not
liable because the chain of causation is broken.
- It will not lie if the intervention is the very kind of the
which is likely to happen, if want of care which is alleged
takes place e.g. rescue.
• Elections: where a person is put in alternative danger and he
elects what to him is the less perilous, D is liable if he is
injured.
- The injury sustained is not to be attributed to rashness and
imprudence.
Resultant Damage (2 Schools)
i. Polemis Rule: used mostly in personal injury cases
Once D is proved to have been in breach of his duty of care, he is
liable for all the direct consequences of that breach.
- Directness includes all consequences of that negligence,
though in nature and magnitude, those consequences were
such as no reasonable man would have anticipated.
ii. Wagon Mound Rule: foreseeability is the test for
culpability and compensation.
- The particular injury for which a claim is made must be
reasonably foreseeable.
DEFENCES
1. Contributory Negligence: where P fails to take reasonable care
for safety of his own interest in relation to the conduct for
which he seeks to blame the D.
• Part 1; Civil Liability Act 1963 (Act 176)
- Sec 1: A claim of damage shall not be defeated by reason
of the fault of the person suffering the damage.
- Sect 2 & 3: the courts must in determining the issue of
negligence must determine the relative contributions of P
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& D and reduce the damages to be awarded to P in
proportion to his contribution.
• Requires the foreseeability of harm to oneself
• P’s negligence must be operative i.e. in respect of the risk to
which his negligence exposed him and not some other risk.
2. Volenti Non Fit Injuria (voluntary assumption of risk): a
willing exposure to injury or loss, or its risks, releases others
from the duty of care which would normally devolve upon
them, provided the willingness is genuine.
• 3 possible scenarios: P may have
- agreed that D was not to be liable
- been to blame or either faulty either in whole or in part for
his own injury.
- To the D conforming to a standard which is lower than
normally required by the law.
• D must prove that the P voluntarily and freely with full
knowledge of the risk agreed to incur it.
• Factors taken into account: fear, poverty, altruism, dependence
and modesty.
• An employee will rarely be held volens, if he was injured while
obeying his employer’s instructions.
- Except where the risk he ran was necessarily or ordinarily
incidental to his work
Bowater v Rowley Regis: “For the purpose of the rule…a man
cannot be said to be truly willing unless he is in a position to choose
freely. And freedom of choice predicates, not only full knowledge of
the circumstances of which the freedom of choice is conditioned, so
that he may be able to chose wisely, but the absence from his mind of
any feeling of constraint so that nothing shall interfere with the
freedom of his will.
EMPLOYER’S DUTY TO HIS WORKMEN
Wilson & Clyde Coal v English: “a duty which rests on the
employer and which is personal to the employer, to take reasonable
care for the safety of his workmen, whether the employer be an
individual, firm or a company, and whether or not the employer takes
any share in the conduct of the operations.
• The employer owes a duty of care to his workers which is
personal and of a general nature.
• The employer must protect his employees from foreseeable
harm even if they cannot foresee the ultimate consequences.
• The duty is owed to each individual employee.
- Each workman’s particular circumstances which are
known or which ought to be known by the employer will
determine the standard of care to be taken.
- Merely because one particular employee is likely to suffer
greater pain does not impose a duty to take special care in
respect of that employee.
▪ Except where the operation on which the
particular employee is engaged is in itself a
dangerous one which needs special care.
- The employer is not required by law to dismiss the
employees, if this is the only way of avoiding liability.
• The duty is personal to the employer
- It is not discharged merely because he engages others to
do the work on his behalf.
- He is liable if contracts others to do the work unless he
they exercise reasonable care and are competent to do the
work required of them.
• The actual duties:
i. Competent Workman: to appoint and put in charge persons
competent to deal with the dangers arising in the work.
- Covers fellow workmen as well as supervisors put in
charge by the employer.

- Competence will depend on the nature and operations of
the employer.
ii. Adequate Tools: the employer must take care to provide
appliances.
- Employer need not manufacture the tools but must take
care to procure the tools from reputable manufacturers or
the market overt.
- If the work involves special risk, the employer must
provide protective materials and take reasonable steps that
should be taken to see that they were used.
iii. Safe System of work: omnibus term to describe how the work
should be carried out. Included the different parts to be played
by various employees, the time for work and the organisation
of the work
- Long established practice in trade is regarded as strong but
inconclusive evidence of a reasonable conduct.
• Factories Offices & Shops Act, 1970 (Act 328) as amended.
VICARIOUS LIABILITY- EMPLOYER’S DUTY TO 3RD PARTIES
• An employer is liable for the acts or torts of servants
committed in the course of his employment.
- 2 classes if persons i.e. Servants or independent contractor
• Based on the principle “respondeat superior”
• Who is an employee?
i. Integration or Organization Test [Stevenson v
Macdonald]: crucial to the test is the distinction between a
contract of service or contract for services.
- A contract of service exists where:
▪ The master has power to select his servant
▪ Wages or remuneration is paid
▪ The master has the right to control the method of
doing his work
▪ The master has a right to dismiss or suspend the
person.
ii. Entrepreneurial Test: If A is the owner of the business and
carries it out for himself and bears the loss or benefits from
the profit, then A is an independent contractor and not
employer. i.e. the contract is for services not of services.
[Market Investigations Case]
- Where a workman is hired to another employer, the
employer who owes him the duty of care is the one
vicariously liable.
iii. Control Test: considers the person who controls the
workman as his employer and therefore the one who is
vicariously answerable for his wrongs.
• Tests of Liability
i. Was the servant doing an act of a kind not authorized by the
master or is it just a wrongful performance of an authorized
act. [Lister v Hesley Hall]
- Concentration be on the relative closeness of the
connection between the nature of the employment and the
particular tort.
ii. Was the servant acting within authorised limits of time?
- Acts within scope of his job:
▪ Stays on for a few minutes after working hours to
complete a given task.
▪ Takes slight detour for his own purposes while
performing his master’s duties
- Acts outside scope of his job:
▪ Servant on holidays calls at office and injures
another.
▪ Takes major detour for his own purposes while
performing his master’s duties. (on a frolic of his
own)
- It is always a question of degree.
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• Effect of express prohibition.
- Arises where the master expressly prohibits the employee
not to do the very act in the course of which he commits
the tort.
- Distinction is drawn between
▪ The mode of doing an act
▪ The act itself
- If the prohibition is regarded as delimiting the scope of the
servant’s employment, the prohibited act will be outside
the course of the employment.
- If the prohibition is an improper method of carrying out
the servant’s authorised duty, the prohibited act will be
within the course of the employment.
• Effect of express prohibition.
- The servant is under a duty to take reasonable steps to
protect his master’s property in the case of emergency.
- Whether the servant’s act exceeds the implied duty is a
matter of degree.
- Where damage is caused with a car, the fact of ownership
of the car is prima facie evidence that the car, at the
material time, was being driven by master, owner or his
servant.
OCCUPIER’S LIABILITY- NEGL. IN RELATION TO PREMISES
• Obligations of the occupier for damage which occur on his
premises depend on the character of the entrant.
Lawful Visitors
i. Persons entering as of right: e.g. policemen, meter readers,
factory inspectors.
ii. Contractual Visitors: persons who enter the premises in
pursuance of a contract.
• the nature and extent of the occupier’s obligations in
relation to the safety of the premises will be a matter of
construction from the contract.
- There will be an implied term into the contract if the
contract is silent on the point.
- What the term is will be determined from the contract
generally.
• Occupier generally warrants that his premises are as safe
for the purposes of the contract as reasonable care and
skill on the part of anyone can make them.
- Where the occupier could not have discovered the defect,
even by the exercise of reasonable care and skill there is
no liability.
- Duty is generally only owed to interior of premises.
- If the premises are used for sports or to watch
entertainment, the warranties are that the premises are fit
for that purpose having regard to that activity.
• It is no defence that the defect was an open danger which
was obvious to all.
Frances v Cockrell: D engaged services of independent contractors to
construct stands for persons to watch a steeplechase race. P who paid for
admission was injured when the stand which had been negligently
constructed collapsed. D did not know that the stand had been negligently
constructed.
iii. Invitees: a person who enters the premises for purposes which
the occupier has business or material interest.
• An occupier must take reasonable care to prevent injury to
the invitee from unusual danger of which he knows or
ought to know.
- Unusual danger: if it is not customary to have that danger
in the place where it is found.
- The occupier ought to know those dangers which are
discoverable by the exercise of reasonable care and skill.

• The occupier must warn the invitees through notice,
lightning or guarding etc. to prevent injury to them.
• If the invitee exceeds the limit of his invitation, he may
become a trespasser ad out of the law’s protection.
- Invitation may be limited to place and time.
- Situation may be different if it is a child.
Indemaur v Davies: P, a gas-fitter, fell in a hole accidentally while he
went to D’s premises to examine and test gas burners. D was guilty for
leaving the hole unfenced.
iv. Licensees: entrants with permission to enter for their own
purposes of which the occupier has no material or business
interest.
• A licensee takes premises which he is merely permitted to
enter as he finds them.
• Occupier is under a duty to warn the licensee of concealed
dangers actually known to him and not known or obvious
to the licensee.
- Obvious danger: one that a reasonable man using
reasonable care would have seen it.
- Once permission has been given to use the premises, the
occupier has to warn them of new dangers created by him.
- There is no duty on the occupier if the danger is not known
by him.
Unlawful Visitor (Trespasser): a person who enters the land and vii. Liability is based on control of the production process by M
has neither the right nor the permission to be there. His presence
is unknown and rejected by the occupier.
• Addie’s Case: Generally, a trespasser enters premises at his viii. Injury must be to consumer’s life or property or economic loss.
own risk except that deliberate harm should not be caused to
him. LIABILITY FOR MISSTATEMENTS
- “No occupier is under any duty to potential trespassers, whether
adults or children, to do anything to protect them from danger
on his land, however likely it may be that they will come and run
into danger and however lethal the danger may be.”
• Duty of Common Humanity: [Herrington v British
Railway Board]
- Duty of an occupier is what a conscientious humane man
with his knowledge, skill and resources could reasonably
have been expected to have done or refrain from doing to
mitigate the risk of injury which the particular danger
exposes the trespasser.
- The duty only arises where the occupier becomes aware
of the presence or the real likelihood of the presence of
the trespasser i.e. strictly presence-related.
▪ Test is substantial probability of the T’s presence.
- The level of precautions expected of the occupier is
subjective taking into account the knowledge, ability and
resources of the occupier.
▪ O is expected to do more if T is likely to be a child
Herrington v British Railway Board: The P, a child had gone through
a fence onto the railway line, and been badly injured. The Board knew of
the broken fence, but argued that they owed no duty to a trespasser.
NEGLIGENCE IN RELATION TO CHATTELS
MANUFACTURER’S LIABILITY
“A manufacturer of products, which he sells in such a form as to
show that he intends them to reach the ultimate consumer in the
form which they left him with no reasonable possibility of
intermediate examination and with the knowledge that the absence
of reasonable care in the preparation or putting up of the products
will result in an injury to the consumer’s life or property , owes a
duty to the consumer to take that reasonable care”. [Lord Atkin;
Donoghue v Stevenson].
i. Manufacturer: includes producers, repairers, masons and
suppliers of articles who have done some work on the article.
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P a g e | 11
ii. Product: any item capable of causing damage. Involves things
taken internally or externally or merely for other use e.g. cars.
iii. Sale: whether supplied though gift of samples or sale.
iv. Ultimate Consumer: covers any user, whether known or
unknown to the manufacturer. i.e. anyone foreseeably harmed
by the defective product.
v. Intermediate Inspection:
- The consumer must use the product exactly as it left the
manufacturer and how it was intended to be used.
▪ If the consumer misuses the product in an
unfashionable way, the M will not be liable.
- Mere opportunity for inspection after it had left the
manufacturer will not be enough.
▪ Consumer who uses the product even after detecting
the defect might be guilt of contributory negligence.
- A warning or instructions relating to the use of the product
by M, may be sufficient discharge of the liability.
- Defect refers to the “Thing in the product which caused
P’s injury.
vi. Burden of proof for want of reasonable care lies on the P.
- Res ipsa applies in GH to create a presumption of
negligence in some circumstances.
Aboagye v Kumasi Brewery: rotten palm-nut in beer bottle
caused P to suffer from food poisoning.
i.e. covers acts as occur in the actual manufacture of the
products.
1. DECEIT
• Addresses the intention to deceive.
• To succeed P must be able to establish fraud on the part of D.
- A careless statement which is not dishonest will not found
an action
• Fraudulent misrepresentation: “a statement which is made
either knowing it to be false, without belief in its truth, or
recklessly, careless as to whether it be true or false.” [Lord
Herschell; Derry v Peek]
• Once fraud is proved, the defendant’s motive is irrelevant
• Generally, silence gives no cause of action.
- Where a person is under a legal obligation to speak and he
deliberately refuses, he is guilty of fraud
Derry v Peek: D in a company prospectus stated the Co. had the right
to use steam powered trams as opposed to horse powered trams in the
firm belief that they would get approval to run steam powered trams.
The approval application was later refused. The claimant purchased
shares in the company in reliance of the statement made and brought
a claim based on the alleged fraudulent representation of the
defendant. Held: The statement was not fraudulent but made in the
honest belief that approval was forthcoming.
• Elements [Kusi v. Kusi]
i. D must make a fraudulent misrepresentation
- D must either know that it is false or make it recklessly
not caring whether it is true.
- Actionable statements-
▪ Statement of opinion if that opinion is not held.
▪ Statement of future if at the time of making it he did
not have that intention.
▪ Half-truths, ambiguities and actions to conceal the
truth.
▪ Fraudulent representation made through innocent
agent
- P is liable if he is aware that events subsequent to the
making of a statement make it no longer true and fails to
correct it.

- Where a servant commits deceit in the course of his
employment, his master is vicariously liable.
West London Commercial Bank V Kitson: Ds accepted a bill of
exchange representing falsely that they had authority to do so. The Ps
acted on it suffered loss. Held: that the misrepresentation was on fact
and not law and so they were liable
ii. Defendant must intend that the plaintiff act or fail to act
because of the representation
- The representation need not be made to the P but there
must be an intention that the plaintiff should rely on it.
- Where representation is made to a limited class then there
is no liability to those outside the class.
iii. The plaintiff must have actually acted in reliance on the
misstatements
- It must be proved that the representation was at least one
of the reasons for the plaintiff acting as he did.
Smith v. Chadwick: The plaintiff bought shares in a company on the
faith of a prospectus which contained the untrue statement that a certain
person was a director of the company. The plaintiff had never heard of
this person and could therefore not convince the court that he relied on
the statement in the prospectus. And so, his action failed.
iv. The Plaintiff must suffer damage as a result of his
reliance on the representation.
Kusi v Kusi: D offered several farms and an uncompleted building as
security for a loan he took from P. The D’s family sued P when he
exercised a right of lien on the property saying that it was family
property. P sued D for deceit saying that though D knew of the family
character of the properties, he fraudulently offered them as his own to
secure a loan.
• Remedy for Deceit: The remedy is damages. [Doyle v.
Olby (Ironmongers) Ltd]
- Normally a claim in deceit is for pecuniary or economic
loss, but personal injury and property damage are
recoverable too.
2. NEGLIGENT MISSTATEMENTS
• Misstatement, may be
- of law; opinion; fact or intention.
- By voluntary undertaking; in the course of business; a
person under duty to speak.
• A duty of care in making non-negligent statements would be
imposed whenever a special relationship exists between the
parties and responsibility is not disclaimed
Hedley Byrne V Heller & Partner: The plaintiff wanted to check the
creditworthiness of a customer and so asked their bank to check it from
the bank of the customer. The bank sent a report stating that they were
creditworthy but would not take responsibility for the report. The
plaintiff acted on it to his detriment as it was found out that the customer
Easipower was not credit worthy.
Held: Irrespective of any contract, if someone who is possessed of a
special skill undertakes to apply that skill for the assistance of another
person, who relies upon such skill, then a duty of care will arise. In
certain circumstances a professional adviser might be liable even in the
absence of a contractual or fiduciary relationship between himself and
the person who had suffered some economic loss.
(defendants would have been liable but for the disclaimer)
• Liability will not be imposed merely because it is foreseeable
that P would rely on the P.
- There must be a close proximity between the maker and
the recipient of the advice.
- It must be fair, just and reasonable to impose the duty.
• Condition for Proximity:
- The advice was required for a purpose made known to the
defendant
- The D knew that the advice would be communicated to
the plaintiff for the purpose made known to the P in order
that P may use same for his purposes.
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P a g e | 12
- The D knew that P would act on the advice without
independent inquiry
- The advice is acted upon to the detriment of the plaintiff
McNaughton V Hicks: P was negotiating with a 3rd party about a takeover
bid. The 3rd party instructed the D, their accountants, to prepare accounts
as quickly as possible. The plaintiff relied on the accounts which were
carelessly drawn up to make a bid and subsequently made a loss.
Held: The Court of Appeal found that the defendant did not owe a duty
of care to the plaintiff. There was insufficient proximity for a special
relationship as the defendant did not know the accounts would be sent to
the bidder for the particular transaction. Account given by the defendants
was in general terms and accordingly it was not fair, just and reasonable
to impose on the defendants a duty of care to the plaintiffs
• Knowledge may be actual or inferred from conduct.
• The duty would arise if adviser gains financially from the
reliance by the advisee on the advice.
3. DEFAMATION
Governed by customary law and common law principles.
A. UNDER COMMON LAW:
At common law slander is distinguished from libel as this is
essential in proving damage.
- Libel is actionable per se unlike Slander
- Slander is only a tort while libel can be a tort and a crime
- Slander is oral, impermanent and transient.
• Where a document containing defamatory matter is published
by reading out loud to a third person or dictated to a clerk to
whom it was it is slander not libel.
Forrester v Tyrell: D defendant received an anonymous letter while at a
meeting of a lodge of which both he and the plaintiff were members. The
defendant read the letter to himself and then, by leave of the chairman,
read it to the members present. Held: It was a publication of the libel.
Osborn v Thomas Boulter: P wrote to the defendants, his brewers
complaining of the quality of the beer. After sending an employee to
investigate and report, the defendant dictated a letter to his typist in which
he alleged that the plaintiff had been adding water to the beer.
Held: the act may only amount to slander. Action failed as the
communication and the occasion was in the ordinary course of business
of the defendant.
Medlum v. Australian Broadcasting Corporation: Refused to follow
Forrester v Tyrrel. Held: reading aloud a script only amounted to slander
• Libel is written, permanent and visible to the eye.
- also includes films, radio, television and public performances
of plays
Monsoon v Tussauds: P was acquitted of murder. Defendant later put an
effigy of him during their exhibitions of wax figures, in the "chamber of
horrors" which contained models of many murderers.
Held: that the defamatory matter may be conveyed in some other
permanent form of statue, a caricature, an effigy, chalk marks on a wall,
signs or pictures. It constituted a libel
• Constitutional Provisions Against Defamation
- Article 12: The fundamental Human Rights and freedoms
enshrined in chapter 5 shall be respected and upheld. It is
however subject to respect for the rights and freedoms of
others and for the public interest.
- Article 21: Guarantees freedom of speech and expression,
freedom of the press and other media; freedom of thought,
conscience and belief (including academic freedom),
freedom of religion and of assembly
- Article 162: Guarantees freedom and independence of the
media.
▪ Any medium which publishes a statement about or
against any person shall be obliged to publish a
rejoinder, if any, from that person.

- Article 164: The provisions above are subject to laws that
are reasonably required in the interest of national security,
public order, public morality and for the purpose of
protecting the reputations, rights and freedoms of
other persons.
ELEMENTS OF DEFAMATION
i. The P must prove that the communication is capable of a
defamatory meaning.
• The test is whether the words tends to lower the plaintiff in
the estimation of right-thinking members of the society
generally.
- Sim v. Stretch [Lord Atkin]: D sent a telegram to the P asking him,
to send the possessions of a maid as well as money borrowed from
her. P alleged that it meant he was in pecuniary difficulties and had
to borrow from a maid. Held: The words were not capable of a
defamatory meaning.
• Mere abusive personal attacks spoken in the heat of an
argument are not defamatory
- Bonsu v Forson: The parties were very good friends. In an argument
it was alleged that the D said “…you are a thief…you are a hopeless
lawyer and if it wasn’t for Owusu Afriyie you would have had no
clients…you are a hopeless MP”. Held: Since the words were
spoken in the heat of a quarrel, they were not actionable
ii. The words must actually be defamatory.
• The words must be interpreted in their fair and natural
meaning as ordinary people would understand it except where
innuendo is pleaded
Cassidy V Daily Mirror Newspapers: D published in a newspaper a
photograph of one Mr C and a Miss X together with the words "Mr M.C,
the race-horse owner, whose engagement has been announced." The
P was and was known among her acquaintances as the lawful wife
of MC. But the D did not know this. She brought an action for libel
pleading innuendo.
Held: The publication could be defamatory. The caption conveyed to
reasonably-minded people an aspersion on the plaintiff’s moral character,
she was entitled to succeed.
• Innuendo [Grubb v Bristol United Press]
- A defamatory imputation whereby extrinsic facts known to
the third party gives the words used a secondary meaning in
addition to or alteration of their ordinary meaning
- True/ Legal Innuendo: is not defamatory on its face. A legal
innuendo statement can be defamatory when combined with
certain extrinsic or outside circumstances.
- False Innuendo: It is a defamatory statement made that has
an implied meaning, so only individuals who have the
necessary contextual knowledge can appreciate and
understand that the comment is defamatory.
iii. The words must make reference to the plaintiff
Knupfer V London Express Newspaper: D published an article
referring to an as association of political refugees which, it was admitted,
could have been defamatory if it had been written about a named
individual. The appellant was head of the U.K. branch of the association
which consisted of 24 members. Held: The words were written of a class
and he had failed to show that they were pointed at him as an individual.
• When the words are spoken or written about a group or class:
the size of the class, generality of the charge and extravagance
of the accusation are considered
iv. The words must be published
• “There is a “publication” of a letter wherever the writer of the
letter shows it to any person other than the person to whom it
is written. If some individual wishes not to publish a letter,
where the letter contains defamatory matter, he must either
P. Vitoh & Uncle Rollo: Torts Summary
P a g e | 13
keep it to himself or send it himself straight to the person to
whom it is written.” [Pullman v Hill]
Pullman V Hill: A letter about the Plaintiffs, 2 of the members of a
partnership, was written on behalf of the Ds, and sent by post in an
envelope addressed to the firm. The letter was dictated by the MD of the
Ds to a clerk who took down the words in shorthand then wrote them out
in full using a typewriter. The letter so written was copied by an office
boy from whom it reached its destination. It was in the ordinary course of
business opened by a clerk of the firm and was read by two other clerks.
Held: The letter must be taken to have been published both to the
plaintiff's clerks and the defendant's clerks and that neither occasion was
privileged.
• If a person becomes aware of the defamatory matter through
stealing or eavesdropping there is no publication
- Huth V Huth: The defendant posted a statement to the plaintiffs, in
a sealed envelope, which they alleged was defamatory. In breach of
his duty and out of curiosity, the statement was taken and read by a
butler. The plaintiff claimed that this constituted a publication of the
libel for which the defendant was responsible. Held: The statement
was not published.
SLANDER
• There is a need to prove damage.
- The damage should have been caused by the defamatory
matter and resulted in material loss to the plaintiff.
- The test for causation is reasonable foreseeability
- The loss must be capable of being quantified in money
• Situations Where Damage Need Not Be Proved
- Imputation of crime
- Imputation of a loathsome disease
- Slander in respect of an office, profession, trade or business
- Imputation of unchastity
B. UNDER CUSTOMARY LAW
Wankyiwaa v Wereduwaa: In a quarrel, the defendant spoke and
published that the plaintiff’s vagina stinks.
Held: The fact that the words of abuse were spoken in the heat of a quarrel
does not itself negative liability. At customary law, abuse per se is a civil
wrong that can be redressed by a pecuniary award or damage.
• Customary law protects reputation and injured feelings
• It does not draw a distinction between libel and slander –
[Anthony v UCC (Apaloo JA)]
- Slander at customary law is actionable per se provided it is
false.
• Truth is not always a defence at customary law.
- Atiase v Abbottey: The plaintiff a shopkeeper sued the defendant
for defaming her as a prostitute and saying that she used her store
for prostitution and not for selling goods. Held: Publication of
defamatory words under customary law are actionable if false and it
does not matter whether they may be rejected at common law as
mere words or vulgar abuse uttered in the heat of a quarrel.
• Under customary law slander is the only action under
defamation and it is actionable per se
- Ampong v Aboraa: The plaintiff who was a candidate for the
Akropong Stool was called "slave and beast" by the defendant. The
plaintiff sued for damages for damages for slander under customary
law. Held: The epithet "slave" by itself was actionable under
customary law without proof of special damage, although whether it
still carried its former sting.
Remedies under Customary Law
• Order for retraction and apology
• Award of damages

DEFENCES FOR DEFAMATION
1. Absolute privilege: statements made in some contexts, of a
certain kind and by some people are absolutely privileged.
i. Executive matters: communications relating to state matters
ii. Judicial proceedings: any statement made from the bar as
well as statements made before tribunals, committees and
commissions. [Art 114; 132 and 127)
- Extends to counsel, jurors, witnesses and parties.
iii. Legislative proceedings: [Art 96- 97; 115-116]
iv. Solicitor-client communications
2. Qualified privilege
i. Words relating to matters of common interest
ii. Words protecting the interest of the publisher
iii. Words protecting the interest of another: There are two
conditions.
- The recipient must be interested in the communication
- The maker must be under some obligation to
communicate
iv. Public interest:
- Fair and accurate reports of parliamentary and judicial
proceedings.
- statements made to help in the apprehension of
criminals.
v. Misconduct of public official
• Qualified privilege is destroyed by:
- Malice
- Excess of privilege: This is when material is circulated
beyond people who should legitimately receive it.
3. Fair comment-comment on matters of public interest made
honestly without malice
• conditions to establish fair comment [Boohene V Abeyie]
i. Comment must be on a matter of public interest
ii. Comment must be based on fact
iii. Comment must be an opinion: “Fair comment is available
to an honest man expressing an honest opinion whether
exaggerated, wrong or prejudiced”. Slim v Daily
Telegraph [Lord Denning]
Boohene V Abeyie: plaintiff claimed damages for libel published in
the pioneer newspaper owned by the second defendants who were
printers and publishers. The plaintiff alleged that the article was to the
effect that the plaintiff made certain dismissals for political reasons and
that the plaintiff though a graduate had no qualification in airway
technique.
Held: There was no evidence of malice since the first defendant had
published what he honestly believed.
4. Justification- Operates where the publication is true and all
material elements are established as truth.
- Truth is an absolute defence under common law.
[Wakley v Cooke]
5. Consent
Libel act 1843- this act allows the defendant to express remorse
and offer amends. If plaintiff rejects it the defendant can refer to
it in his pleading and the court would take it into account in fixing
damages.
P. Vitoh & Uncle Rollo: Torts Summary
P a g e | 14
DEATH IN RELATION TO TORTS
• Civil Liability Act, 1963 (Act 176)
- Death has the effect of either:
▪ Creating liability (Section 16)
▪ Extinguishing liability (Section 24)
• This action would not lie if:
- There was a defence to the action had the deceased lived
- The deceased had agreed not to sue,
- The issue had been settled or was statute barred.
• This action is to protect purely pecuniary interest and not
mental suffering [Blake V Midland Railway Corporation]
- Section 18(5): Funeral expenses may be recovered
- The action is for the loss of breadwinner and so
measurement is based on pecuniary loss to the
dependents and not limited by any contract between the
deceased and the defendant.
Nunan V Southern Railway Co. : John Nunan was a passenger on a train,
being carried under a contract which limited the liability of the defendants
to £100.Upon arrival while crossing the railway lines in order to leave,
owing to the negligence of the defendants' servants, they were run into by
another train and killed.
Held: The most important thing is whether he could have sued them had
he lived. If he could have then, although by the contract his claim would
have been limited to £100, this will not affect his dependents’ action.
• Section 15: Definition of Dependents and Family
"Dependant" here includes any member of the family of the
deceased, and any other person he duly adopted or
otherwise obliged to maintain and who suffers loss or
mental distress as a result of the death; [Yeboah V
Mckenzie]
- "Member of the Family" of
• A citizen of Ghana: Anyone of those persons
mentioned in the First Schedule according as the
family is based on the paternal or maternal system;
• A non-citizen of Ghana: the wife, husband,
father, mother, grandfather, grandmother,
stepfather, stepmother, son, daughter, grandson,
grand-daughter, stepson, step-daughter, brother,
sister, half-brother or half-sister.
• Section 16: Where Death Is Caused By Wrongful Act.
Where a person causes the death of another, if the deceased
could have maintained an action and recover damages if he
had survived, the defendant shall be liable to an action for
damages for the benefit of the dependents of the deceased.
- The action shall be commenced within three years after
the death.
• Section 18(1): Damages.: The damages under section 16 of
this Act shall be—
(a) Amounts (if any) the court considers proportionate to the
loss resulting from the death to each of the dependents,
(b) Subject to subsection (2), the total amounts (if any) the
court shall consider reasonable compensation for mental
distress resulting from the death of such dependents.
Subsection (2) limits the amount to £1000
• Prospective loss can be recovered provided that the plaintiff
had reasonable expectation of pecuniary benefit from the
continuance of life
 P a g e | 15

- it must be shown that there was a reasonable probability of • Claim for compensation under the workmen's compensation
pecuniary advantage and not a mere speculative possibility Ordinance
of pecuniary benefit.

Taff Vale Railway Corporation V. Jenkin: Couple’s daughter, 16, was

killed in a railway accident for which appellants were responsible. At the
time of her death, the respondent's daughter was an apprentice dressmaker
with two more months to complete her apprenticeship. She was an
exceptionally clever girl and there was a good chance of her making
substantial earnings on the completion of her apprenticeship. The father
was a fireman, who suffered from varicose veins and was not in robust
health. The wife kept a small green grocer's shop.
Held: The deceased who lived with her parents was nearing the
completion of her apprenticeship as a dressmaker and was likely in the
near future to earn remuneration which might quickly have become
substantial.

• Assessment of Pecuniary Loss

Damages are assessed by dependency in a lump sum and
apportion it to the dependents.]
- This was approved by Ghanaian Courts in [Baaye v
Prempeh|| Amakom Sawmill v Mensah]

• Method of Assessing Quantum Damages:

LUMP SUM = (a - b) x c

where
• a = Wages
• b = Personal and living expenses
• c = Number of active years to be purchased
• a - b=basic figure (Datum)

Payments based on generosities are not taken into account as

wages.

• Damages for Shortened Life Expectancy

- Damages can be recovered for shortened expectation of life
even though the person is dead or in a vegetative state.
[Atsyor v Donkor (Coussey J)]
- The assessment of damages is for the prospect of a
predominantly happy life but not the prospect of the length of
days. [Ayimavor’s case (Apaloo JA) adopted from
Benham V Gambling]

• Medical and funeral expenses as well as administrative

expenses incurred to bring the action are recoverable

• Section 20: The court must not take into account these in
assessing damages
- Sum payable on the death of the deceased under any
contract of insurance
- Pension, gratuity in consequence of the death

• Section 21: Contributory negligence: If the death was

caused partly by the fault of the defendant and partly by the
contributory negligence of the deceased, the damages
recoverable in the action may be reduced

• Section 24 – Non-Applicable Actions

The following causes of action die with the deceased

• Cause of action for breach of promise to marry

• Seduction
• Inducing one’s spouse to leave or remain apart from the
other
• Adultery

P. Vitoh & Uncle Rollo: Torts Summary