LECTURE 1: OVERVIEW OF THE SOURCES OF LEGAL LIABILITY

Lecture Outline

1.1 Introduction

1.2 Objective

1.3 Tort

1.4 Contract

1.5 Statute

1.1 INTRODUCTION

In the introductory course we discussed at length and defined what risk is all about. Liability is a duty that we
owe others. Men and women in a civil society are expected to direct their actions so as not to injure others or
damage their properties. The behavior of men and women has led to the formulation and enactment of laws
that govern their relationships. These relationships are critical in determining the duties that one owes another.

In Kenya today and indeed in the whole world, liabilities towards others and the financial consequences have
become increasingly complicated and onerous. This has come about due to technological advancement, business
and professional practices, moral attitudes and the price of human labor. It is therefore necessary to gain a
satisfactory understanding of the legal provisions and basis of business and individual relationships with others.
It is also important to note that laws are made by nations and these laws have a significant impact on various
relationships and create certain responsibilities to those that they are expected to regulate.

Liabilities may arise in various ways, but three basic sources are important. You should be able to familiarize
yourself with these sources which are: tort, contract and statute.

1.2 OBJECTIVES

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 At the end of the course the student should be able:

 To have a broad overview of the sources of legal liability

 To use decided cases to be able to explain and apply to real business relationships and transactions

 To utilize the knowledge to avoid any liability that the student may come across when he/she becomes a
manager

NOTE: The details of and types of tort will be discussed in the chapters that follow

1.3 Tort:

Definition:

A civil wrong for which the remedy is a common Law Action for unliquidated damages and which is not

exclusively the breach of contact. It is also a breach of a duty which a person owes to his fellow human

being in general to regulate his actions in order that he should not cause injury to them or damage their

property.

Unliquidated damages here means that the extent of loss or damages cannot be determine in advance,

but can be determined later by the courts. In cases where the value of risk is known for example damage

to a car in an accident whose value is known, it is easy to predetermine the loss. Such predetermined

loss or damage is referred to as “Liquidated Damages”

Tort may take the form of negligence, nuisance, trespass or defamation.

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 1.4 Contract:

Definition:

An agreement which creates obligations between the parties to the contract which are enforceable at law.

For a contract to exist there must be an agreement consisting of:-

 Offer by one party

 Acceptance by another party.

 The contract must be contained in a deed or under a seal.

 There must be valuable consideration given by one or both parties.

 The agreement must have been reached with the intention of creating a legal relationship and by its
character must be seen doing so

 The parties must have legal capacity to enter into the legal relationship. These capacities include:

Sound mind

Legal majority of age.

Authority to act

 The parties must comply with certain formalities imposed by law.

Differences in Breach.

Contract: Is a violation of a right created by an agreement or promise (normally voluntarily assumed)

Tort: Breach of duty of care owed to another according to societal norms

1.5 Statute:

A statute is a legislation enacted by the state (parliament and even local authorities create bylaws) which create
relationships between the state and the citizens and relationship between one citizen and another or citizens
and businesses or between one business and another business. In some countries where the form of
government is a federation, we have the: Federal Government, States and Cities and Counties. At all these levels

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laws are passed to govern the people. Whether we are in a parliamentary system or federal system, the
constitution is the supreme law and overrides all other laws. From this law certain obligations are placed on the
citizens and businesses.

Activity:

1. Using appropriate definitions, differentiate between tort, contract and statute as sources of legal liability

2. What are the requirements for a binding contract?

3. In your own view what responsibilities does a citizen have towards another citizen?

LECTURE 2: NEGLIGENCE

Lecture Outline

2.1 Introduction

2.2 Objectives

2.3 Definition of Negligence

2.4 Proof of Negligence

2.5 Duty to Take Care

2.6 Duty of Care Illustrated in the Neighbour Principle

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2.7 Legal Duty

2.8 Standard of Care

2.9 Onus of Proof

2.10 Summary

2.1 Introduction

In the last lecture we defined what tort was and we stated that there were various forms of tort. As

major source of liability negligence can be seen in many areas of our lives. Individuals are exposed to

one form of negligent act or another which may lead to losses.

2.2 Objectives of the Lecture

At the end the lecture the student should understand:

 The nature of and various definitions of negligence

 Duty of care

 Proof of negligence

 The Neighbour principle

2.3 Definition:

Negligence is the most common form of tort. Various definitions have been given of negligence. Let us remind
ourselves of these definitions from the other sources of liability can we?

1. It was defined in Blythe V. Birmingham Waterworks Co. (1856) as :-

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“Omission to do something which reasonable man guided by those considerations which ordinarily regulate the
conduct of human affairs would do, or doing something which a prudent and reasonable man would not do”.

2. In Vaughan V Taff. Rly co. (1860) it was defined as:

“Negligence is the absence of care according to the circumstances.

3. The English Law Reform Committee (1939) defined it as:

“Failure to exercises due care in a case in which a duty to take care exists”

4 The law of torts 13th Ed. P72, Winfield and Jolowicz defines negligence as “ the breach of legal duty to
take care which results in damage, undesired by the defendant, to the plaintiff”

5 Unfair contract terms Act 1977(English) defines negligence as breach:

- Of any obligation arising from the express or implied terms of a contract which requires skill in the
performance of the contract.

- Of any common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty)

- Of the common duty of care imposed by the occupiers liability Act 1957 or the occupiers liability Act
(Northern Ireland) 1957.

Activity:

Look for the Kenyan equivalent of the Unfair Contract Terms Act and see how negligence is defined

2.4 Proof of Negligence

How do we know that negligence exists?

Let us look at what a plaintiff must prove to show that actually there was negligence on the part of the
defendant.

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The defendant was under a duty to exercise care towards the plaintif

Duty of care has been defined below. You may want to refer to it.

There was a breach of that duty

A breach may be define as failure to undertake a responsibility

The plaintif sustained damage as a result

This means that there was a loss suffered by the plaintiff as a result of the breach

The breach of duty was the proximate cause of damage.

This means that there was no other cause of the loss/damage except the act of breaching the duty

Activity

Familiarize yourself with the doctrine of proximate cause as discussed in other units

2.5 Duty to Take Care

We have referred to duty of care in the proof of negligence. Let us now understand what the duty of care is all
about.

A duty to take care must exist before there can be negligence. This therefore means that each person has a duty
to his fellow men to regulate:

 His personal actions and conduct

 The conditions of his property and business.

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  The activities of his employees.

 The relationship between him/her and others

This is so as not to cause injury or damage to others or their properties. Failure to observe this duty renders one
guilty of negligence.

2.6 Duty of Care as Illustrated in “Neighbour Principle”

2.6.1 Background

Can you recall the discussion on the duty of care?

Let us see how the Neighbour Principle illustrates this important concept.

The neighbour principle as a maxim came up during the 20 th century with a main objective of defining the person
whom a duty to take care is owed. The principle has been the main pillar in the tort of negligence, although its
extensions could be applied to other legal liabilities as well. In “The Law of Torts” 13 th Ed. P72, Winfield and
Jolowicz defines negligence as:

“The breach of legal duty to take care which results in damage, undesired by the defendant, to the plaintif”

This then means one has to take reasonable care not to inflict harm on his “neighbour”- a neighbor being one
who will suffer damage or loss as a result of my negligent acts. The duty to take care rotates mainly on the
foreseeability and reasonableness of the person doing the act. This duty of care was not firmly established until
the famous case of DONOGHUE v. STEVENSON (1932) ac 562 which determined a duty of care to anybody who
will be jeopardized by your acts.

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 .What is a negligent act?

A negligent act is generally agreed to be an act, which a reasonable man would not do (The reasonableness here
being based on an ordinary rational person). If the consequences of one’s acts can be reasonably foreseeable,
then if such acts lead to the harm, damage or loss to another person, the person who caused them can be taken
to task for negligence. This raises the questions:

 To whom do I need to take care or to whom do I owe a duty? This is where the Neighbour principle
comes in.

 Somebody would also ask how did this principle come about?, or of what importance is it to me now
that I know it?” or even further could the same principle developed in the early 20 th century still be
applicable to current times?

These and many more other questions are the basis of discussion here. We might however, not be very
exhaustive since a verdict in one case may not be applicable to another case with different backgrounds but
similar facts, but it is our belief that this should help you understand the principle, its origin, development and
application.

Let us look at the other aspects of the Neighbour Principle:

The origin and development of the Neighbor principle under which it considers who is my neighbor, why I need
to take care and duty to take care, the importance and application of the principle to the liability insurance; and
finally instances where the duty to care is not called for and therefore the neighbour principle would not apply.

The discussions include cases that have been quoted from the English legal system.

2.6.1 The Origins and Development of the Principle.

The origin of the Neighbour Principle cannot be well understood unless the origin of the duty of care is
understood first. This is because the neighbour Principle is corollary to the duty of care, that is, it is based on the

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duty to take care and if there is no duty of care then there would not be need for being one’s neighbour in this
context. In fact every other discussion that can be made on this principle must base itself on the duty of care.

2.6.2 Origins of the Duty to Take Care.

A person is not liable for every negligent act, which he or she commits. There has always been some control
device, which has identified and limited the situations in which a person may be held legally liable for the
consequences of his negligence. The principle control device today is the requirement that the defendant owes
the plaintiff a duty of care. This requirement was not articulated as a general principle until the judgment was
articulated as a general application in HEAVEN V. PENDER (1883) 11QBD 503.

In this case, a shipowner contracted with a master painter for the painting of his ship and with the defendant
dockworker for the erection of the necessary staging. The staging gave way and the plaintiff, the painter’s
employee, fell and suffered injury. It was held that the defendant was liable as it was in breach of his obligation
to the plaintiff to use ordinary care and skill in supplying a safe staging.

In this stage of the English legal development, the tort of negligence was only applicable to damage caused in
certain particular circumstances, such as road accidents, but was not a principle of general application. The need
for such a principle of general application was brought about by the social, industrial and technological changes
of the Industrial Revolution. However, the economic and philosophical views which were prevalent during this
period meant that the law of contract played the dominant role in the law of obligations. Laissez-faire ideology
led to the view that an obligation should not be imposed on a person unless they had agreed to it. As tortuous
obligations were generally thought to be imposed by law, rather than being based on agreement, the law of tort
played a minor part at this stage. Although there were some attempts in the late 19 th centaury to develop a
general test, it was not until 1932 that a test of the existence of a duty of care was established in the case of
DONOGHUE V. STEVENSON (1932) AC 562.

The facts of the case were that the defendants were manufacturers of ginger beer. A friend of the plaintiff
purchased a bottle of ginger beer in an opaque bottle. The plaintiff poured half of the ginger beer into a glass
and drank it without any problem. When she poured the remaining half into the glass she saw the remains of a
decomposed snail and suffered stress that required hospitalization. She sued the manufacturers of the ginger
beer in negligence despite the fact that she had no contract with either the retailer or the manufacturer. The
House of Lords held that the defendants, being the manufacturers of the ginger beer, owed a duty of care to the
plaintiff, as the ultimate consumer or purchaser of the ginger beer, to take reasonable care to ensure that the
bottle did not contain some substance which was likely to cause injury to health.

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Lord Atkins stated his famous neighbour test as a general test for determining whether a duty of care existed or
not stated as follows:-

“ you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour. Who then in law is my neighbour? The answer seems to be……… persons who are so
closely to and directly affected by my act that I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions which are called in question”

NOTE

The decision of the House of Lords is important for two particular reasons. Learn and understand these two
important reasons.

a) First it destroyed the Privity fallacy. This idea laid down that where the defendant was liable to one
person for breach of contract, he could not be liable to a third party in tort for the same act or omission.
On the facts of the case the defendant would have been liable to the first and for breach of contract in
selling him a defective product, if the friend had suffered damage. By creating a tortuous duty to the
plaintiff the House of Lords began the removal of the privity fallacy from English law.

b) A new category to duty was created: that of manufacturers of dangerous products who owe duty to their
ultimate consumers. This has now been known as the narrow rule.

2.6.3 The Development of the Neighbour Principle

Let us now turn to the famous pronouncements of Lord Atkin.

The statement of principles made by Lord Atkin has come to be known as the “Neighbour Principle”. As has been
noted, its importance lies in providing a unifying framework for the tort of negligence and a general principle,
which can be applied to new situations, not falling within the traditional categories.

However, part of the judiciary was reluctant to accept that this statement of principle had the effect of
constituting a general principle which was applicable to new situations. As late as 1951 in the case of CANDLER v
CRANE CHRISTMAS AND Co. (1951) 2KB 164 majority of the court of Appeal were unwilling to extend liability for
negligent misstatement causing economic loss. This was an appeal case heard by Cohen, Asquith and Denning.

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Knowing that the accounts were wanted for the purpose of inducing the plaintiff to invest in the company, on the
company’s instructions the defendant accountants prepared the company’s accounts and balance sheet. Due to
the defendants’ negligence, the accounts did not give a true statement for the company’s financial position. The
plaintiff invested British Pounds 2,000 but lost it as the company went into liquidation. In his views Lord Denning
argued that the old authorities had to be re-examined in the light of Donoghue but this argument was rejected
by the majority who slavishly followed the old precedents, which pre-dated Donoghue, and refused to subject
them to fresh analysis in the light of Donoghue.

The Majority therefore held that the plaintiff could not maintain an action for negligence against the defendants
as they did not owe him a duty of care, there being no contractual or fiduciary relationship between them.

The decision in the Candler case was a real set back to the development of the neighbour principle. However, in
the landmark case of HEDLEY BYNE & Co. LTD. v. HELLER & PARTNERS LTD. (1964) AC 465 the Candler decision
was disapproved and the House of the Lords DID extend liability for negligent misstatement. In this case the
appellants, an advertising agency, wished to make enquiries about the financial reliability of one of their
customers, Easipower Ltd. Their bankers made enquiries orally then in writing, stating that Easipower Ltd was
financially sound, although this information was given without responsibility.

The appellants relied on this advice which proved to be inaccurate and they suffered considerable losses when
Easipower went into liquidation. It was held that a duty of care in making a statement may arise when the
parties are in a “special relationship”

But the appeal was dismissed because the respondents had excluded their responsibility. The judges, however,
did not apply the ordinary Donoghue principles for fear that it would lead to too great an ambit of liability; but it
was a significant decision because it demonstrated that the House of Lords were prepared to expand the ambit
of liability in negligence in appropriate cases.

However, in 1970 Lord Atkin’s statement of the principle was given explicit recognition by the House of Lords as
being a statement of general principle, which could be applied to all cases of negligence. This was in the case of
HOME OFFICE v. DORSET YACHT CO. (1970) AC 1004; (1970) 2 WLR 1140.

In this case, the appellants were responsible for the operation and running of a Borstal Institution. Several
inmates were on a training exercise under the supervision of three Borstal officers when they escaped one night
and damaged the respondent’s yatch, which was moored nearby. The question is: Did the appellants owe any
duty of care to the yatch owners? It was held that the appellants should have reasonably foreseen that if they

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failed to exercise reasonable care in controlling and supervising the inmates in their charge, damage of the kind,
which occurred, was likely to be caused. There was no ground in public policy for granting the appellants
immunity from liability in negligence. Lord Reid sitting in the Appeal said:

“ Donoghue V. Stevenson.. may be regarded as a milestone, and the well-known passage in Lord Atkin’s speech
should, I think, be regarded as a statement of principle. It is not to be treated as if it were a statutory definition.
It will require qualification in new circumstances. But I think that the time has come when we can and should say
that it ought to apply unless there is some justification or valid explanation for its exclusion”.

Lord Reid’s judgment was an important one because it gave the courts significant freedom to develop the tort of
negligence and to apply it to new situations.

This development of a general principle which could be applied to all cases was taken a stage further in the case
of ANNS v. MERTON LONDON BOROUGH COUNCIL (1978) AC 728. The plaintiffs were lessees and occupiers of
flats in a block built in 1962 by a private builder and developer. Some of the plaintiffs had taken their leases in
1962 and others had acquired them subsequently by assignment from original lessees. In 1970, the building
began to suffer damage, e.g. cracks in the walls, due to the movement of the foundations. Under by-laws made
pursuant to the Public Health Act 1936, the Local Authority –the defendants –had power (but no duty) to inspect
the foundations of new buildings. The most likely cause of the movement was inadequate (too shallow)
foundations. Assuming this to be so, and assuming that the Local Authority had carried out an inspection
pursuant to its powers, but had done so negligently, it owed a duty of care to subsequent occupiers. It was held
that both a statutory power and a statutory duty could give rise to a duty of care and if there had been a
negligent exercise by the council of their power to inspect the foundations, they would be liable to plaintiffs.

The builder may also be liable, either under Dohoghue v. Stevenson or for breach of his statutory duty to comply
with the relevant by-laws. Lord Wilberforce said:

“ Through the trilogy of cases in this House, Dohoghue v. Stevenson, Hedley Byne & Co. Ltd. v. Heller & Partners
and Home office v. Dorset Yatch the position has now been reached that in order to establish that a duty of care
arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous
situations in which a duty of care has been held to exist. Rather, the question has to be approached in two
stages. First, one has to ask whether, as has been alleged that the wrongdoer and the person who has suffered
damage there is sufficient relationship of proximity or neighbourhood such that, in the reasonable
contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case a
prima facie duty to care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider
whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the
class of persons to whom it is owed or the damages to which a breach of it may give rise.”

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This two-tier approach was in many ways the high-water mark in the development of the Neighbour principle. It
has been frequently used in the courts. It provided a principle which could be applied to all cases and the effect
of its application in some cases was to expand considerably the tort of negligence.

2.6.3 Importance and Application of the Neighbour Principle to Liability Insurance.

How can we apply this principle to Liability Insurance?

We can see this through decided cases.

Since the development of the principle, a lot of controversies have risen as to its use and applicability in cases of
negligence. The first major critism of the two tier approach of Lord Wilberforce is found in the decision of the
House of Lords in GOVERNORS of the PEADBODY DONATION FUND v. SIR LINDSAY PARKINSON & CO. (1985) AC
210 in which Lord Keith noted the tendency to treat Lord Wilberforce’s judgment as if it was of a “definite
character” he based his approach to what is “just and reasonable”, although this does not appear to be
significantly different.

Further critism was leveled against Lord Wilberforce’s two tier approach in the case of LEIGH AND SILLIVAN LTD.
v. ALIAKMON SHIPPING CO. LTD. (1986) AC & Bounds: (1985) IQB 350 (CA). In his ruling Lord Oliver adopted a
more conservative approach that did Lord Wilberforce where he stated it was not correct to regard the
Wilberforce ruling as establishing some new and revolutionary test of the duty of care, the logical application of
which was going to enable the court in every case to say whether or not the duty of care exists. In particular
Oliver LJ said that the courts were not free to evolve their own conception of policy without regard to
established lines of authority.

A more fundamental assault was made on the approach adopted by Anns in a recent decision of the House of
Lords in CURRAN v. NORTHERN IRELAND CO-OWNERSHIP HOUSING ASSOCIATION LTD (1987) AC 718. The
plaintiffs had relied upon Anns in arguing that they were owed a duty of care by the defendants. But Lord Bridge
who gave the only judgment of the House of Lords said that Anns “ ……… may be said to represent the high-
water mark of a trend in the development of the law of negligence by your Lordships’ House towards the

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elevation of the “neighbourhood” principle derived from the speech of Lord Atkin in Donoghue V. Stevenson into
one of the general application from which a duty of care may always be derived unless there are clear
countervailing considerations to exclude it”.

Despite the criticisms however, the neighbour principle adopted into the Donoghue V. Stevenson case has
registered major achievements in relation to its application to various legal liabilities. To portray this important
move clearly, we shall look at its relevance in regard to negligence (although this has been briefly mentioned in
trespass, and vicarious liability).

Can we look at it with reference to Negligence?

Negligence was defined in the case of BLYHE v. BIRMINGHAM WATERWORKS CO. (1986) IL Exch. 781 as “the
omission to do something which a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human afairs would do, or doing something which a prudent and reasonable man
would not do”. The omission of the duty of care is the main basis of the Neighbour Principle in Negligence. The
following cases would bring out this interrelationship more vividly.

In AL-KANDARI v. J.R. BROWN & CO. (1988) 2WLR 671, the plaintiff was married to a Kuwait. The wife was given
custody care and control of the children and the husband undertook to deposit his passport with his solicitors,
the defendants forwarded the passport to London agents with instructions to take it to the Kuwait Embassy.
While it was there the husband persuaded the Embassy to release it to him. He then arranged for the plaintiff to
be kidnapped and he used the passport to take the children to Kuwait. The plaintiff claimed damages for, inter
alia, negligence. It was held that she was entitled to succeed. The defendants owed the plaintiff a duty to take
reasonable care to keep the passport in their possession and they had been in breach of that duty. The damages
suffered by the plaintiff had been a natural and probable consequence of the breach of the duty.

In CARMATHENSHINE COUNTY COUNCIL v. LEWIS (1955) 2WLR 517, The council were responsible for a Nursery
School which was situated about 100 meters from a main road. One day whilst a class teacher was attending a
child, who had injured himself, a boy aged four walked out of the classroom and left the school premises. The
boy ran into the main road and caused a driver to swerve and hit a lamppost. The lorry driver was killed and his
widow brought an act against the council, alleging negligence by them or their servants. It was held that the

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council owed a duty of care to prevent the young children under their control from escaping and causing to
those on the highway. They had been in breach of that duty and the widow was entitled to damage.

SCM (United Kingdom) Ltd. v. WJ WHITALL & SON LTD (1970) 3WLR 694. In considering a preliminary question of
law, it was assumed that the defendant had been negligent in damaging a high voltage cable and that the
plaintiffs, manufacturers of typewriters and copying machines, had suffered damage to their machinery, and loss
of production, as a consequence of the resulting power failure at the factory. It was held that the defendants
would be liable for the material damage suffered by the plaintiffs and the loss of profit truly consequent thereon,
but not for any other economic loss.

The Neighbour Principle can also be applied in other forms of tort such as trespass, vicarious liability and
defamation.

Can we now look at it with reference to Vicarious Liability?

Note: Vicarious Liability will be discussed in detail later

This is the liability for the tort of others; that is it arises when one party assumes responsibility for the tort of
another. Vicarious liability can arise between husband and wife (common law), parents & children, partners,
unborn children and between principal and agent. In all these relationships mentioned the first one delegates
his/her authority to the second and with it assumes liability arising out of this delegated authority.

Irrespective of whom the authority has been delegated, the neighbour principle still applies, because duty of
care still rests with the person who undertakes the task. Illustrative cases could be considered to elaborate this.

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ANGUS v. GLASGOW CORPORATION (1977) SLT 206.

Adding on extra five miles to a three and a half mile journey, a lorry driver undertook a delivery via his house. He
called home, he said, to collect some spectacles as his other ones had broken and he was unable to drive safely
without them; the court accepted this explanation. Shortly after leaving his home, as a result of his negligence
his lorry was involved in an accident with a car. The lorry driver’s were held liable, as he had been acting in the
course of his employment. At this material time, he had not completely abandoned his employer’s business and
engaged on a new independent journey.

ARMAGUS LTD. v. MUNDO GAS SA: THE OCEAN FROST (1986) AC 717. This is a case of vicarious liability but
where the employee acts out of scope and so relieving the employer from being vicariously liable for those acts.
The plaintiffs were prepared to buy the defendants’ vessel but only if the latter would immediately rehire her.
Negotiations for the sale and rehire were carried out by a broker on behalf of the plaintiffs, with the defendants
chartering and transportation manager. He was bribed by the broker to enter into a contract for the rehire of the
vessel for a three-year period. The defendant, however, wished to hire the vessel for only a year and signed a
charter back for one year. The plaintiffs were told by their broker that his one-year charter form was purely for
internal reasons but that there had in fact been a three-year charter. At the end of the first year, the defendants
declined to continue with the hire of the vessel.

The plaintiffs claimed damages for wrongful reputation. They said that the manager had actual or ostensible
authority to enter into the three-year charter and the defendants were vicariously liable for deceit on the part of
the manager.

It was held that the plaintiffs could not succeed. Ostensible authority on the part of the agent, either to enter
into the contract or to state he that he had permission to do so would only exist where the principle has
specifically represented that there was such authority. Where as here an agent claimed that he had permission
to enter into a contract when he did not, the principle would not be bound by such representations. The mere
fact that the manager was acting as such did not mean that the plaintiffs knew that he would be unable to do so
without prior approval especially in view of the fact that this charter contained unusual provisions.

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 Can we now look at it with reference to Trespass?

Note: Trespass will be discussed in detail in a later lecture

In the case of VIDEAN V. BRITISH TRANSPORT COMMISSION (1963) 3 W LR 374 a station master’s two year old
son made his way on to the railway line. The driver of a motor trolley, approaching along the railway line
negligently, failed to see the child until the last moment. The stationmaster leaped to his son’s aid: the boy was
saved, although badly injured; the stationmaster lost his life. It was held that the boy was not entitled to
damages. He was a trespasser on the line and the trolley driver owed him no duty of care since his presence
there was not reasonably foreseeable. However, the stationmaster’s widow was entitled to compensation, as the
stationmaster’s presence on the track was reasonably foreseeable.

With the defendant or the vehicle he was driving. Contact with objects held or thrown or fired by the defendant
is held to be “direct”.

We shall first consider trespass to land in this lecture

2.6.5 Limits to the Application of the Neighbour Principle.

The extent to which the Neighbour principle can be applied depends, to a very large extent, on the extent to
which the duty of care is limited. This therefore means that in situations where duty of care is limited. This
therefore means that in situations where duty of care is restricted, the application of the neighbour will also be
similarly restricted. The following are instances where the duty of care is restricted:-

(a) Where there is no economic loss: there is no duty of care if the plaintiff has not suffered any economic loss.
This was seen in the case of JEB FASTENERS v. MARKS BLOOM & CO.(1983) 1 ALL ER 583. The defendant
accountants prepared accounts for their client and negligently overstated the value of the stock. The defendant’s
clients were in financial difficulties and were seeking financial support. The plaintiff then took over the company
after seeing the accounts. He then brought an action in negligence against the defendants. It was held that a

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duty of care owed to the plaintiff but the action failed on the grounds of causation. The reason being the plaintiff
was not concerned with the value of the stock.

(b) There is no duty to act for the benefit of others: Care is only required by law where one’s acts or omission will
lead to loss or damage to the other party. But there is no duty for one to act for the benefit of others. The rule
here is that: “I must not harm my neighbour (misfeasance)”, Not, “I am required to save him (Non- feassance)”

(c) Where negligence and public law are concerned: Under normal circumstances negligence or duty to care
imposed on certain institutions is limited. Certain institutions may not be required to pay for negligence- this is a
statutory provision and liability is often limited to these statutory provision. This was illustrated in the case of
MARSHALL v. OSMOND (1983) 3 WLR 13. The plaintiff was traveling as a passenger in a car he knew to be stolen.
The police were in pursuit. The car stopped and the plaintiff tried to run away in order to escape arrest. At this
point he was struck by either the police car or some part of the stolen car after it had been hit by the police car
and he was injured. The plaintiff brought an action against the police officer, for damages, claiming that his
injuries had been caused by the officers negligent driving. It was held that the plaintiff’s action would fail.
Although the police officer as driver owed the same duty to the plaintiff as he owed to anyone else to exercise
such care as was reasonable in all circumstance, had not been negligent “In all the circumstances”. The police
officer had made an error judgment but not, in the circumstance, of such a degree as to amount to negligence.

(d) Where professional Negligence is concerned: In a case of professional negligence, Professional liability will
only arise if there is contractual relationship between the professional and the client. This was exemplified in the
case of BOLAM v. FRIERN HOSPITAL MANAGEMENT COMMITTEE (1957) I WLR 582 in the following terms: “here
you get a situation which involves the use of some special skill or competence, then the test as to whether there
has been negligence or not is not the test of the man on the top of the clapham omnibus, because he has not
got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have skill…
he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art”.

(e) Case of Nervous Shock: Another type of loss in respect of which courts have been reluctant to admit a duty of
care is nervous shock. To the lawyer nervous shock means a mental injury or psychiatric illness and not simply
grief and sorrow. This was defined in the case of BRICE v. BROWN (1984) 1 ALL ER 997. The plaintiff was a 42-
year-old woman with a hysterical personality disorder from which she had suffered infrequently since childhood.
She was a passenger in a taxi, which collided with a bus; her daughter was badly cut on the forehead, an injury
that looked more alarming than it actually was and from which she made a good recovery. The plaintiff’s mental
state was worse after the accident and she made an attempt at suicide, and indulged in “unsocial and bizarre
behavior”. The defendant argued that the precise nature and extent of nervous shock must be foreseeable by a

19
defendant before liability will attach. It was held that Nervous shock consisted of mental injury or psychiatric
illness as opposed to grief and sorrow, and physical (organic) illness.

2.6.6 CONCLUSION

In the fore discussion, we have established the origins importance (uses) and limits of the neighbor principle.
Emphasis should however be made that the principle cannot be viewed in isolation especially when it is an
important element of the duty of care which in it self controls and defines the occurrence of a negligent act.
Therefore the discussion is wide and in a few places it must have found to be overlapping but all for the sake of
clearly identifying and describing the principle as it is used today to establish the insurance of liability with
specific reference to the tort of negligence.

2.7 Legal Duty

We have just discussed in great detail the neighbor principle which tells us that we owe our neighbor a duty of
care. Let us revisit the duty of care and see how it exists in various circumstances. A legal duty exists where a
duty to take care exists.

The plaintiff or injured party must have a direct relationship with the defendant that the defendant has to have
him in contemplation that there is an infringement on his legal right

2.6.1 Damnum Sine Injuria

This is defined as “Loss without violation of a legal right”.

In this case although the plaintiff suffers loss, there is no infringement of his legal right and therefore he is
without remedy.

Examples

1) Where a person is injured in a road accident the driver owes a legal duty to the injured, but has no
legal duty to the servant of the injured.

2) There is no legal duty to the master of an injured person.

3) Any other person who only suffers an economic loss on account of an accident.

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 4) Where a property is damaged through negligence the negligent tortfeasor owes legal duty only to
the owners or possessor of the chattel not to the one who had a contract to use it or to posses it at
some future date.

2.6.2 Economic Loss:

An economic loss is the loss suffered by a third party consequent to damage caused by negligent torfeasor. The
law does not allow recovering such loss.

Reason:

This lies partly in public policy that we cannot load the loss suffered by many to one individual

Case 1;

Electrochrone, Ltd. V. Walsh Plastic Ltd (1968). The defendant’s servant negligently drove their lorry so as to
collide with and damage a fire hydrant near the defendant’s factory on an industrial estate. Water escaped and
the supply of water through the main had to be stopped for some hours. The plaintiff factory had its water cut
off and this caused the loss of a days work at the factory. The main and the hydrant were not owned by the
plaintiffs, but by the owners of the industrial estate.

Held:

Action did not lie because there was no actionable wrong, as a legal duty was only owed to the owners of the
estate and not the factory.

Note: where the damage caused affects an individual directly as a matter of remoteness certain losses may be
claimed.

Case 2:

Spartan Steel and Alloys v. Martins and Co. (Contractors) (1972). By negligently cutting a cable a contractor
caused an interruption of the power supply to the plaintiffs, factory thus causing damages to molten steel. The
action for damages was for:-

(a) Pounds 368 – the value of the metal in the cause of processing.

21
 (b) Pounds 400 - the profit which would have been made on that metal.

(c) Pounds 1767 – The profit which would have been made on further lots of metal which would have
been processed in the time it took for the electricity supply to be restored.

Held:

Only pounds 368 and pounds 400 were recoverable. Pounds 1767 were purely economic loss not following
directly from the foreseeable damage to the plaintiffs property and was too remote.

2.8 Standard of Care

2.8.1 General:

The law does not demand the highest possible standard of care, but reasonable care under the prevailing
circumstances. However, certain circumstances may demand varying standard of care e.g.

- Adults: These will require normal standards of care.

- Children and the disabled: These will require a high standard of care because of their age.

- Professional Conduct: The law requires that professionals will exercise a standard of care as they apply
their skills commensurate with the expected skills of the profession.

2.8.2 Test of Negligence

The test of negligence will be judged by the action of the man in the street i.e. the ordinary man except for most
informed or professional.

2.8.3 Breach of Duty

(a) Liability for negligence or breach of duty may arise at common law. However, there are increasing duties
imposed by statute.

Statutes define duties of various people. e.g.

Occupiers Liabilities Act 1957 –Duties towards visitors.

Defective Premises Act 1972- Duties of landlords’

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Statutes regulating Professionals for example: Public Accountants, Medics, Engineers and others.

Sex Discrimination Act 1975 - Injury to feelings

(b) Misstatement/ misrepresentation

Note the case of Hedley Byrne and Co. Ltd. v. Heller and Partners (1963) Ltd.

(c) Remoteness of Damage.

The plaintiff must prove that negligence was the proximate cause.

2.9 Onus of Proof

Onus of proof usually rests with the plaintiff. He must prove that the defendant failed in his duty to take
reasonable care and that this failure was the proximate cause of the loss or accident. In certain circumstances in
which a prima facie liability rests on one of the parties on proof of occurrence of an accident, the onus is
transferred to defendants to disprove negligence.

2.9.1 Res Ipsa Loquitur

The term means “The thing speaks for itself”. In this case the plaintiff merely proves that the accident occurred
and the onus then rests on the defendant to disprove negligence or as provided for in the Law Reform
(Contributory Negligence) Act 1945 (English) to establish that a degree of balance attaches to the plaintiff and
that damages should be reduced accordingly.

Case:

Scott v. London Dock Co. (1965)

Bags of sugar fell while being hoisted up at the docks and injured the plaintiff. This was held to be a case of Res
Ipsa Liquitur. Said the judge:-

“If a thing causing the mischief is shown to be under the control and management of the defendant and the
accident is such as in the ordinary course of things does not happen if those who have the management use

23
and proper care, it afords reasonable evidence, in the absence of explanation by the defendant that the
accident arose from want of care”.

Three requirements must be met before the maximum can be called in aid:.

a) The thing must be under the defendant’s exclusive control

b) The damage would not have occurred had proper care been taken.

c) There must be no adequate and reasonable explanation of the accident.

Case:

Walsh v. Holst (1958) the defendants were demolishing a building adjacent to the highway. The plaintiff was
injured by falling masonry and sued for negligence. It was held Res Ipsa Liquitur applied, as there was no
evidence to show that all proper and reasonable Precautions had been taken.

Contrast:

Byrne v. Boadle (1863) a barrel of flour fell from the defendants premises on the head of a passer-by. It was held
this was a Prima facie evidence of negligence and shifted the burden of proof to the plaintiff. See also the Mary
Awinja (University of Nairobi student killed by a falling boulder during the construction of the Lillian Towers in
mid 1980s)

2.10 Strict Liability

Definition

Two definitions are normally used to describe the tort of strict liability Let us learn them.

“The occupier of land who brings and keeps upon it anything likely to do damage if it escapes”.

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“Non natural use of land i.e. things brought on the land that are not naturally there”.

Examples of non-natural

 Wild animal kept in a residential area

 Constructed water reservoirs that are not naturally there.

 Accumulation of things

In both of these definitions it is to be understood that in strict liability, liability exists irrespective of negligence.

2.10.1 Land mark Case

The land mark case in strict liability was the case of Rylands v. Fletcher (1868). The facts of the case were as
follows:

The defendants collected in a reservoir on their land water which escaped and flooded the plaintiffs mine
destroying the mines and were sued for damage.

In this case two major factors were noted:

Water can cause mischief when it escapes and negligence is therefore immaterial.

The rule is not applicable to things which are naturally on the land.

Application of the Rylands v. Flecther rule

 There must be an escape of the damage causing thing from the place where the defendant had
occupation of, or control over, land, to a place which was outside his occupation or control.

 A non-natural use of land

This means extraordinary use in the circumstance which is dangerous.

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Case to Illustrate Accumulation of things

Whalley v. Lancashire and Yorkshire G. (1884)

A voluntary embankment caused an accumulation of flood water. This endangered the safety of the railway and
to get rid of the water the defendants pierced the embankment so that the flood water escaped on to the
neighboring land with violence and caused damage which it would not have done had it naturally gravitated on
to the land. The defendants were held liable.

Exception to the Rule

The following situations are an exception to the Rylands v Fletcher rule

a) Consent of the plaintiff especially if the plaintiff benefits from the thing causing demange. Case:
(Richard v. Lothan 1913).

Facts of case:

Water had been brought to the premises for the benefits of all tenants and placed at upper levels water
escaping and flowing downwards and causing damage to the tenants on the lower floors cannot be subjected to
the rule of strict liability unless there was negligence.

b) Default of the plaintiff

If the plaintiff is trespassers or is guilty of willful or intentional act.

c) Act of a stranger

If a stranger eg trespasses caused the escape of the damage causing thing

d) Act of God (vis major)

e) Statutory Authority

2.10.2 Strict Liability for Fire

Fire caused accidentally would not create a liability on the occupier of premises if it escapes to the neighboring
premises except if negligently or intentionally caused.

OR

26
If the defendant keeps large quantities of combustible materials, and if he violates existing covenants or laws and
by laws, in this case the Rylands v Fletcher rule will apply i.e.

- He brought on to his land things likely to catch fire and kept them there in such conditions that, if they
did ignite the fire would be likely to spread to the plaintiffs land.

- He did so in the course of some non-natural use.

- The thing ignited and the fire spread.

2.10.3 Railways

Notwithstanding the statutory authority the railways may be liable for damage caused to agricultural land or
crops by escape of sparks or cinders. However, the liability is limited.

2.10.4 Animals

Animals Act 1971 (English)

a) The Act abolished previous common law rule of:

- Ferae naturae (wild by nature)

- Scienter (known to have mischievous propensity to do harm)

- Dog’s owner strict liability for injury to cattle or poultry

- Cattle trespass

b) Replaces the scienter rule as follows:

Animals which belong to a dangerous species that may cause damage of injury the keeper is liable.

Definition of dangerous species

- One which is not commonly domesticated

- Whose fully grown animals normally have such characteristics that they are likely unless restrained to
cause severe damage, example – lions, tigers, snakes etc.

Case

May v. Burdett (1846)

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The owner of monkey who knew of its mischievous propensity was held liable for injuries caused to the plaintiff
because the monkey bit him.

Note: A license must be given for keeping wild animals.

c) Dogs : Strict liability to damage caused to livestock by defendants dog and poultry.

Keeping and use of Guard Dogs

- Guard dogs must be under control where they guard

- A license may be required

- The owner is not liable for injuries sustained by trespassers.

First Bite Rule

Where a dog is known to have bitten visitors to the premises before any subsequent bites the owner may be
liable. He is expected to control the dog.

Unattended Animal

The owner may be liable for damage caused by such animals.

Case: Illidge v. Goodwin (1931)

The defendant’s horse and cart were left unattended in the streets when a passerby whipped the horse causing
it to back the cart into the plaintiff’s window. The defendant was held liable because he knew the possible
mischief that such animals may cause when startled.

2.10 SUMMARY

In this lecture we have looked in detail the consequences of negligence as a tort. We have learnt that negligence
creates a duty to care. This duty may be applied or expected in different ways depending on how it originates

28
and the capacity of the negligent party. The neighbor principle illustrates that we owe duty to even the people
we do not know and we must always be aware of our actions that may injure such people. Strict liability as
defined and illustrated in the neighbor principle is where we act in a manner that is not usually normal or carry
out activities in a place where they are not to take place. Animals which have a propensity to do mischief must
be properly controlled so that they do not cause damage.

ACTIVITY

1. Explain what you understand by the Term “Res ipsa loquitur”

2. What do you understand by having no capacity to act. What standards of care do people with various
capacities have towards other people?

3. Explain the implication of the “Neighbour Principle”

4. What was the effect of the English Act 1971 on animals?

5. Explain the effect of: First bite rule, unattended animals

6. Explain the effect of the Ryland v Fletcher rule including the exception to the rule.

References

Smyth Colin, Study Course 070 (1981).The CII Tuition Service

29
LECTURE 3: NUISANCE

Lecture Outline

3.1 Introduction

3.2 Objectives

3.3 Definitions

3.4 Types of Nuisances

3.1 Introduction.

Human relations are important because our interactions with each other may lead to losses incurred by one or
more people. As was explained in the last lecture on negligence duty to care is owed to all those that we interact
with or those affected by our actions. You should refer to the last lecture for need or want of duty of care.

3.2 Objectives

By the end of this lecture you should:

 Understand and define Nuisance

 Understand various examples of nuisance

 Understand the application in Liability Insurance

3.3 Definitions

Let us look at some of the definitions given by various authorities:

(a) Professor Winfield defined nuisance as: “an unlawful interference with a persons use or enjoyment of land
or of some right over or in connection with it”.

30
(b) Blackstone defined it as; “something that worketh hurt, inconvenience or damage”.

(c) In tort law, it is defined as “a wrong arising from unreasonable or unlawful use of property to the annoyance
or damage of another or of the public”.

For nuisance to be actionable it must have the following features;

Injury: There must be a wrongful act which causes some injury.

Damages: One must have proof that there was a damage that led to a loss.

Continuous: Nuisance will only become material if it is injected for a considerable length of time but not just for
some short period.

3.4 Types of Nuisances

Nuisance is divided into two categories; Public and Private Nuisance

3.4.1 Public Nuisance

The term Public nuisance covers a wide variety of minor crimes that threaten the health, morals, safety,
comfort, convenience, or welfare of a community. Violators maybe punished by a criminal sentence, a fine, or
both. A defendant may also be required to remove a nuisance or to pay the costs of removal.

Public nuisance may interfere with public health, such as in the keeping of diseased animals or malarial
pond. Public safety nuisances include shooting fireworks in the streets, storing explosives, practicing medicine
without a license, or harbouring a vicious dog. Obstructing a highway or creating a condition to make travel
unsafe or nuisance threatening the public convenience.

A public nuisance interferes with the public as a class, not merely one person or a group of citizens. No civil
remedy exists for a private citizen harmed by a public nuisance, even if her harm was greater than

31
 The harm suffered by others; a criminal prosecution in the exclusive remedy. However, if the individual
suffers harm that is different from that suffered by the general public; she may maintain a tort action for
damages.

Some of the decided cases that support this are as follows:

Soltau vs. De Held. 1851

The plaintiff resided in a house next to a Roman Catholic chapel of which the defendant was the priest.
The chapel bell rang at all hours of the day and night. The plaintiff brought an action against the defendant.

Held: That the ringing of the bell was a public nuisance and the plaintiff suffered more than the

community as a whole.

Campbell vs. Paddington Borough Council. 1911

The defendant erected a stand across a certain highway to enable the members of the council to view the

funeral procession of King Edward VII. The erection of the stand obstructed the view from the plaintiffs

widow.

Held:

That the plaintiff had suffered some special loss and was entitled to recover damages.

NOTE:

Some nuisance can be both public and private in certain circumstances where the public nuisance

substantially interferes with the use of an individual’s adjoining land. For example, polluting of a river

might constitute both a public and a private nuisance. This is known as a mixed nuisance.

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3.4.2 Private Nuisance

A Private nuisance is an interference with a person’s enjoyment and use of his land. The law recognizes

that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the
property and to reasonable comfort and convenience in its occupation.

Examples of private nuisance abound.

Nuisance that interfere with the physical condition of the land include vibration or blasting that damage a house,
destruction of crops, raising of a water table, or the pollution of soil, a stream, or an underground water supply.

Nuisances interfering with the comfort, convenience, or health of an occupant are foul odors, noxious gases,
smoke, dust, loud notices, excessive light, or high temperatures. A nuisance may also disturb an

occupant’s mental tranquility, such as a neighbour who Keeps a vicious dog, even though an injury is

only threatened in the future.

Nuisance also depends on the place if occurrence, what may be a nuisance in one place may not be so in

another, for example a tannery emitting awful smell would indeed be a nuisance in a residential area in

Nairobi, but if not it’s in the industrial area.

In some cases an action against nuisance may not succeed e.g.

Noise made deliberately to annoy the plaintiff who is so sensitive may render the person responsible for making
such noise liable or not liable to pay damages as in the case below:

Christie v Danvey. 1893

The plaintiff and the defendant were neighbours. The plaintiff taught music in his house. The defendant disliked
this and deliberately created noise by banging at the doors and hitting the ceiling of his flat to annoy the plaintiff.
Sensitivity of the issue also maters, a too sensitive plaintiff cannot recover damages for an act which may not

33
have an adverse effect on normal persons. The standards of judging it would be to consider the effect of the
alleged act of nuisance on persons of ordinary habits and not those with an over sensitive nature as stated in the
same case.

Robinson V Kilvertt, 1889

The defendant manufactures paper boxes in the cellar of his house and he leased the upper floor to the
defendant. The operation was uncomfortable to the plaintiff and caused injury to feelings.

Held:

That the defendant was liable and it was no defense that the plaintiff himself came to the place of nuisance.

Malice

Malice is not relevant in deciding whether a person is liable in tort or not. In nuisance, the presence of evil
intention or malice may sometimes be a determining factor in liability. Where the law allows a person to do
some act and he does so out if sheer spite or ill will, he may be held liable in tort of nuisance. This may be seen
in the case below.

Hollywood Silver Fox Farm v Emmett, 1836

The defendant bearing malice against the plaintiff, instructed his son to fire 12 bore gun near plaintiffs farm to
encourage the miscarriage of vixen (female fox) which actually occurred

Held: That the defendant was liable because the act though lawful was committed out of sheer malice.

Remedies

 Damages: This is an ordinary common law remedy. The damages claimed by the plaintiff are always
unliquidated i.e. court has the power to fix them.

 Injunction: This is an equitable remedy. Its granted at the discretion of the court in the circumstance that
the injury to the person is of permanent nature or nuisance to them. But for taking such an action he is
under duty to give reasonable notice to the person concerned that he intends to put an end to the cause
of nuisance himself.

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Defenses

 Prescriptive right: A right to commit a private nuisance maybe acquired by prescription as an easement
i.e. by showing that the defendant had been carrying on an illegal act of nuisance for a period of 20years.

 Statutory Right: The people residing near a Nairobi airport cannot sue the airport authority for nuisance
in respect of excessive noise of the aircraft.

 Consent: Where person expressly allows the defendant to make unreasonable use of his property he
cannot later on complain of nuisance unless he withdraws his consent and informs the defendant.

 Triviality: The defendant may prove that the act complained of as nuisance is grossly insignificant and
temporary in its operations for example smoke or smell arising from a house on an afternoon.

 Reasonableness: The defendant may prove that the act complained of as nuisance is the result of lawful
use of his own land e.g. digging shafts on his own land.

SUMMARY

Nuisance as a tort has the effect of causing some discomfort or interference with another’s comfort. This
discomfort must lead to some annoyance by the person in discomfort. We have learnt that there are two types
of nuisances, private and public. One who suffers as a result of nuisance has two major remedies: compensation
for damages suffered, or an injunction that the perpetrator of the nuisance must discontinue the nuisance. For
private nuisance to hold it must be a continuous one. That is it must not be an event that would take a few
moments. We have been able to look at some of the defenses available in a case of nuisance and the student
should be able to understand them.

ACTIVITY

1. Give the various definition of nuisance

35
2. Differentiate between private and public nuisance giving examples of each

3. What remedies are available in a case of nuisance?

4. Give four defenses in a case of nuisance

REFERENCES

SmythColin,StudyCourse070,The CII TuitionService

Vaughan

36
LECTURE 4: THE TORT OF TRESPASS

Lecture Outline

4.1 Introduction

4.2 Objectives

4.3 Common law form of action

4.4 Forms of trespass

4.5 Defense

4.6 Duty to Trespasser

4.7 Criminal Trespass

4.8 Remedies

4.1 INTRODUCTION

Definition: An unlawful intrusion that interferes with one’s person or property. The tort originated in England
with the action of trespass. Initially, trespass was any wrongful conduct directly causing injury or loss, in modern
law trespass in a unauthorized entry upon land. A trespass gives the aggrieved party the right to bring a civil
lawsuit and collect damages as compensation for the interference and for any harm suffered. Trespass in an
intentional tort and, in some circumstances, can be punished as a crime.

4.2 OBJECTIVES

The objectives of this lecture are:

1. To give the student an overview of the tort of Trespass

2. To understand the origins of the tort of trespass

3. To appreciate the general defenses to trespass

4. To make it possible for the student to apply the knowledge and use it to identify various types of trespass

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4.3 Common law form of action

Trespass is one of the ancient Forms of Action that arose under the common Law of England as early as the 19 th
Century. It was considered a breach of the king’s peace for which the wrongdoer might be summoned before the
king’s court to respond in civil proceedings for the harm caused. Because the king’s courts were primarily
interested in a land ownership disputes, the more personal action of trespass developed slowly at first.

Around the middle of the 14th Century, the clerks of the king’s courts began routinely giving out writs that
permitted a plaintiff to begin a trespass action. Before that time criminal remedies for trespass were more
common. The courts were primarily concerned with punishing the trespasser rather than compensating the
landowner. From the beginning a defendant convicted of trespass was fined; a defendant who could not pay the
fine was imprisoned. The fine in this criminal proceeding developed into an award of damages to the plaintiff.
This change marked the beginning of tort action under the common law.

As trespass developed into a means of compelling the defendant to compensate the plaintiff for injury to his
property interests, it took two forms; an action for trespass on real property and an action for injury to personal
property.

In an action for trespass on land, the plaintiff could recover damages for the defendant’s forcible interference
with the plaintiff’s possession of his land. Even the slightest entry onto the land without the plaintiff’s
permission gave the plaintiff the right to damages in a nominal sum.

An action for trespass to chattel was available to seek damages from anyone who had intentionally or forcibly
injured personal property. The injury could include carrying of the plaintiff’s property or harming it, destroying it,
or keeping the plaintiff from holding or using it as he/she had a right to do.

Later, an additional cause of Action was recognized for injuries that were not forcible or direct. This action was
called trespass on the case or action on the case because its purpose was to protect the plaintiff’s legal rights,
rather than her person or land, from intentional force.

Over the years the courts recognized other forms of actions that permitted recovery for injuries that did not
exactly fit the forms of trespass or on the case. Eventually, writs were also issued for these various types of
actions. For example, a continuing trespass was a permanent invasion of someone’s rights as when a building

38
overhang a neighbour’s land. A trespass for mesne profits was a form of action against a tenant who wrongfully
took profits, such as a crop, from the property while he occupied it. A trespass to try title was a form of action to
recover possession of real property from someone who was not entitled to it. This action “tried title” so that the
court could order possession for the person who turned out to be the rightful owner.

These common-law forms of action had serious shortcomings. A plaintiff who could not fit her complaint exactly
into one of the forms could not proceed in court, even if she obviously had been wronged. Modern law has been
remedied this situation by enacting rules of civil Procedure that replace the common-law forms with more
flexible ways of wording a civil compliant. The various trespass actions are still important, however, because
modern property laws are largely based on them. The rights protected remain in force, and frequently even the
old names are still used.

4.4 Forms of Trespass.

We shall look at trespass to land, chattel and the person in the preceding lectures in detail. For purposes of
understanding trespass in general let us understand what it means to trespass to land.

The word trespass is used to describe the intentional and wrongful invasion of another’s real property. An action
for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the real property,
such as the owner of an apartment building, a tenant, or a member of the tenant’s family. The action can be
maintained against anyone who interferes with the right or ownership or possession or occupation, whether the
invasion is by a person or by something that a person has set in motion. For example, a hunter who enters fields
where hunting is forbidden is a trespasser, and so is a company that throws rocks onto neighbour’s land when it
is blasting.

Every unlawful entry onto another’s property is trespass, even if no harm is done to the property. A person who
has a right to come onto the land may become a trespasser by committing wrongful acts after entry. For
example, a mail carrier has a privilege to walk up the sidewalk at a private home but is not entitled to go through
the front door into the house. A person who enters property with permission but stays after he has been told to
leave also commits a trespass. Moreover, an intruder cannot defend himself in a trespass action by showing that
the plaintiff did not have a completely valid legal right to the property. The reason for all of these rules is that the
action of trespass exists to prevent breaches of peace by protecting the quiet possession of real property.

In a trespass action, the plaintiff does not have to show that the defendant intended to trespass but only that
she intended to whatever caused the trespass. It is no excuse that the trespasser mistakenly believed that she

39
was not doing wrong or that she did not understand the wrong. A child can be a trespasser, as can a person who
thought that she was on her own land.

Injury to the property is not necessary for the defendant to be guilty of trespass, although the amount of
damages awarded will generally reflect the extent of the harm done to the property. For example, a person could
sue birdwatchers who intruded onto his land but would probably receive only nominal damages. A farmer who
discovers several persons cutting down valuable hardwood tress for firewood could recover a more substantial
amount in damages.

Trespassers are responsible for nearly all the consequences of their unlawful entry, including those that could
not have been anticipated or are the result of nothing more wrongful than the trespass itself. For example, it a
trespasser carefully lights a fire in the stove of a lake cabin and a fault in the stove causes the cabin to burn
down, the trespasser can be held liable for the fire damage.

Courts have had to consider how far and above and below the ground the right to possession of land extends.

United States V. Causby, 328 U.S. 256, 66 S Ct. 1062, 90 L. Ed. 1206 (1946),

The U.S. Supreme court held the federal government liable for harm caused to a poultry business by law-altitude
military flights. The court concluded that because the airspace above land is like a public highway, ordinary
airplane flights cannot commit trespass, In this case, however, the planes were flying below levels approved by
federal law and regulations, so the government was held responsible. Its activity was a “talking” of a private
property, for which the Fifth Amendment to the US constitution requires just compensation.

It may be a trespass to tunnel or mine under another’s property, to force water or soil under the property, to
build a foundation that crosses under the boundary line. Underground encroachments are usually an exception
to the rule that no harm needs to be shown in order to prove trespass. Generally, trespass actions are permitted
only where there is some damage to the surface or some interference with the owner’s rights to use her
property.

4.4.1 Trespass by one entitled to possession.

In nearly all states, a person who forcibly enters onto land is guilty of a crime, even if that person is entitled to
possession of the land. For example, a landlord who personally tries to eject a tenant creates a potentially
explosive situation. To discourage such “self help” the states provide legal procedures for the rightful owner in

40
trespass for his forcible entry, but the occupant can sue for Assault and Battery of damage to her personal
property.

4.4.2 Continuing trespass.

A trespass is continuing when the offending object remains on the property of the person entitled to possession.
A building or fence that encroaches on a neighbour’s property creates a continuing trespass, as does a tree that
has fallen across a boundary line. Some courts have allowed a series of lawsuits where there is a continuing
trespass, but the prevailing view is that the dispute should be settled in its entirety in one action.

The remedies can be tailored to the particular kind of harm done. A defendant might have to pay damages to
repair the plaintiff’s property or compared the plaintiff for the diminished values of her property. Where a
structure or object is on the plaintiff’s property, the defendant may be ordered to remove it.

4.5 Defenses

In some cases a defendant is not liable for trespass even though she has intruded onto another’s property. Pubic
official, for example, do not have any special right to trespass, but housing inspector with a search Warrant can
enter someone’s building whether the owner consents or not. A police officer can pursue a criminal across
private property without liability for trespass. The police defense to a claim of trespass is her lawful authority to
enter.

A hotel employee who enters s guest’s room to perform housekeeping service is not a trespasser because it is
customary to assume that guests want such services. It charged with trespass by the guest, the hotel would
claim the guest consented to the employee’s entry.

A landlord does not have the right to enter a tenant’s apartment whenever the landlord wants. However, the
landlord usually has the right to enter to make repairs. The landlord must arrange a reasonable time for the
repairs, but the tenant’s consent to this arrangement is either contained in the lease or is implied from the
landlord’s assumption of responsibility for making repairs inside the apartment.

A person in not guilty of trespass if e goes onto another’s land to protect life or property during an emergency.
For example, a passerby who sees someone pointing a gun at another person may cross onto the property and
subdue the person with the gun. Someone at the scene of a traffic accident may go onto private property to pull
a victim from one of the vehicles.

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Permission to enter someone’s property can be given either by consent or by license. Consent simply means
giving permission or allowing another onto the land. For example, a person who lets neighbourhood children
play in her yard has given consent. Consent may be implied from all the circumstances. A homeowner who calls a
house painter and asks for an estimate cannot later complain that the painter trespassed by coming into her
yard.

Sometimes consent to enter another’s land is called license, or legal permission. This license is not necessarily a
certificate and maybe in the form of a written agreement. For example, an electric company might have a license
to enter a private property to maintain electric lines or to read the electric meter. The employees cannot act
unreasonably when they make repairs, and they and the company are liable for any damage they cause to the
property.

4.6 Duty to trespasser

A homeowner is limited in what he can do to protect his family and property from trespassers. The homeowner
cannot shoot children who keep cutting across the lawn or set traps or deadly spring-operated guns to kill
anyone who trespasses on the property. Deadly, Force in any manner is generally not justifiable except in self-
Defense while preventing a violent felony. Mere trespass is not a felony.

The owner or person in possession of real property can be held liable if guests are injured on the property
because of the owner’s negligence. A property owner generally does not have the same duty to make the
premises safe for a trespasser, however. A trespasser assumes the risk of being injured by an unguarded
excavation, a fense accidentally electrified by a falling wire, or a broken stair. The occupant of the real property
has a duty only to refrain from intentionally injuring a trespasser on the premises.

These general rules have several exceptions, however. A property who knows that people frequently trespass at
a particular place on his land must act affirmatively to keep them out or exercise care to prevent their injury. If
the trespasser always be expected to understand and appreciate dangers. Therefore, if the property owner has a
swimming pool, the law would classify owner must take reasonable precautions to prevent a trespassing child
from harm. In owner from liability if a child trespassed and drowned in the pool.

4.7 Criminal Trespass.

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At common law a trespass was not criminal unless it was accomplished by violence or breached the peace. Some
modern statutes make any unlawful entry onto another’s property, it is always considered criminal, and penalties
may be increased for more serious or malicious acts. Criminal intent may have to be proved to convict under
some statutes, but in some states trespass is a criminal offenses regardless of the defendant’s intent.

Some statutes consider a trespass criminal only if the defendant has an unlawful purpose in entering or
remaining in the place where he has no right to be. The unlawful purpose may be an attempt to disrupt a
government office, theft or Arson, Statues in some states specify that a trespass is not criminal until after s
warning, either spoken or by posted signs, has been given to the trespasser. Criminal trespass is punishable by
fine or imprisonment or both. Trespass n. entering another person’s property without permission of the owner
or his/her agent and without lawful authority (like that given to a health inspector) and causing any damage, no
matter how slight. Any interference with the owner’s (or a legal tenant’s) use of the property is a sufficient
showing of damages and is a civil wrong (tort) sufficient to form the basis for a lawsuit against the trespasser by
the owner or a tenant using the property. Trespass include erecting a fence on another’s property swimming the
boom of a crane with loads of building materials over another’s real estate. In addition to damages, a court may
grant an injunction prohibiting any further continuing, repeated or permanent trespass.

4.8 Remedies

There are some cases, where an officer will not be justified by the warrant or authority of a court, having
jurisdiction. These exceptions are generally founded on some matter of public policy or convenience; for
example, when a warrant was issued against a mail carrier, though the officer was justified in serving the
warrant, he was liable to an indictment for detaining such mail carrier under the warrant, for by thus detaining
him, he was guilty of “ willfully obstructing or retarding the passage the passage of the mail, or of the driver or
carrier”

The declaration should contain a concise statement of the injury complained of, whether to the person, personal
or real property, and it must allege that the injury was committed vi et armis and contra pacem; in which
particulars it differs from a declaration in case.

The general issue is not guilty. But as but few matters can be given in evidence under this plea, it is proper to
plead special matters of defense.

The judgment is generally for the damages assessed by the jury, and for costs, when the judgment is for the
defendant, it is that he recovers his costs.

4.9 SUMMARY

4.10 ACTIVITY

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References

LECTURE 5: TRESPASS TO LAND

Lecture Outline:

5.1 Introduction

5.2 Objectives

5.3 Definition of Land

5.4 What constitutes Trespass to Land

5.5 Who may sue in a case of Trespass to Land

5.6 Trespass by Relation

5.7 Defenses to Trespass to Land

5.8 Remedies to Trespass to Land

5.9 Cases to Trespass to Land

5.10 Kenyan Perspective

5.11 Summary

5.1 INTRODUCTION

In the tort of trespass we consider the relationship of one’s property and other people. Everyone wishes to enjoy
his/her property without any interference from anywhere. Such interference by other people may lead to either
damage or loss to his/her property. There are various forms of trespass. These include trespass to land, chattel
and the person. Trespass has been defined in Webster’s dictionary as “an unlawful” act committed with force

44
and violence (Vi et armis) on the person property or relative right of another; a tort involving some violence
however slight; also the action for injuries done by such an act”. Thus, if a person collides with another, that may
be trespass to the person. This tort involves the plaintiff suffering damage as a result of direct contact.

Trespass is also defined as the unjustifiable interference with the possession of land, goods or rights and
freedoms of the person. The negligence principle and duty of care apply here only as far as the duties owed to a
negligent trespass are concerned.

This is illustrated in the case of BRITISH RAILWAYS BOARD V. HERRINGTON (1972) 2WLR 537. The respondent, a
six-year-old boy, was playing in a field beside which ran the appellants railway line. The fence between the field
and the line was in a bad state of repair and in fact, people often broken though it to cross the railway line. Some
weeks before the appellants had been told of the presence of children on the line. The respondent passed
through the fence and was electrocuted on the live rail. It was held that the appellants owed the respondent a
duty of common humanity and though he was a trespasser, he was entitled to recover damages.

5.2 Objectives

At the end of this lecture the student should be able to:

 Define Trespass to land

 Understand the various forms of trespass to land

 Identify who can sue under trespass

 Understand the remedies available to a plaintiff

 Identify defenses to trespass to land

5.3 Definitions

Let us look at some of definitions so that we can understand what land is and what trespass to it means.

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Land in law includes not just the surface of soil and the subsoil beneath it but includes also any structures and
buildings on its surface. According to Oxford advanced learners dictionary, land is defined as the solid part of the
earth’s surface (contrasted with sea or water).

Therefore trespass to land is the name given to that form if trespass which is constituted by “unjustifiable
interference with the possession of land”. The view formerly held was that the owner of the land would not
generally have a right of action unless he was in possession of the land. The owner out of possession would have
a right of action if his reversionary interest (where the possession of land reverts to the guarantors) in the end
was being damaged.

However, in Moya Drift farm Ltd. V. Theuri (1971) E.A. 114, the applicant was the absolute and indefeasibly
owner of registered land (Registration of Titles Act (Cap. 281) section 23), but he was not in actual possession of
land. Nevertheless, the court of Appeal awarded the appellant a perpetual injunction and mesne profits against
the respondent, who was trespassing on the appellants land and refusing the appellant and its servants entry.

As Spry, V.P. said in this case, “The Act (Registration of Title Act) gives a registered proprietor his title on
registration and, unless there is any other person lawfully in possession, such as a tenant, I think that title carries
with it legal possession: there is nothing in the Act to say or eve suggest that his title is imperfect until he has
taken physical possession”.

5.4 What Constitutes Trespass to Land?

5.4.1 Trespass by wrongful entry:-

The commonest form of trespass consists in a personal entry by the defendant, or by some other person or
animal through his procurement, into land or building occupied by the plaintiff. The slightest crossing of the
boundary is sufficient for example to put one’s leg across the fense or to sit upon the fense or to put one’s hand
through a window provided there is some physical contact, with the plaintiff property that is enough to
constitute a trespass to land.

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There may be sufficient physical interference if something is deliberately placed where natural forces will carry it
to the land of the plaintiff for example, if oil is jettisoned in such circumstances that wind and waves must carry it
to the shore of the plaintiff. The matter constituted trespass need not be tangible, it may be a gas.

Trespass to land is actionable per se without any proof of damage. If the entry is intentioned in the sense of
being a voluntary act, it is actionable even though made under a mistake and though the defendant honestly
believe that the land was his own or that he had a right of entry on it. There is no foundation for the assumption
that a man cannot be a trespasser unless he knows he is one.

Trespass by wrongful entry may be described under the following sub-headings.

(a) Accidental Trespass

The state of limitations 1623, s 5, enacts that in all actions of trespass quare clausum freight the
defendant may claim is a disclaimer of any title or claim to the land, that the trespass was by
negligence or involuntary, and a tender or offer of sufficient amends before action brought, in which case the
plaintiff is barred of his. This seems to imply that an involuntary trespass is actionable if no amends are
tendered.

The modern view is that it might be a good defense to prove that the trespass was accidental and
involuntary for example trespass by one’s cat.

(b) Statutory right of entry:

If a person is granted permission by statute to enter a land and goes beyond what his or her

permission allowed he/she is construed to have committed trespass to land. The tort may be
committed by lawful abusing a right of entry, remaining on land after authority to remain there has
been revoked or throwing rubbish onto another’s land.

c. Trespass by abuse of right of entry: Highways:-

Any person who uses a highway for any purpose reasonably and ordinary incident to passage, such as
sitting down to rest or perhaps even to sketch) becomes a trespasser against the owner of the subsoil. It is
trespass to dis-pasture ones cattle on the highway or to go there for purposes of persistently watching
what is being done on the adjoining land.It is not a trespass to walk along a highway with the object of
committing a crime elsewhere.

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. 5.4.2 Trespass by Remaining on the Land:

Even a person who has lawfully entered on land in the possession of another, commits trespass if he remains
there after his right of entry has ceased. To refuse or omit to leave the plaintiff’s land is as much as a trespass as
to enter land originally without right.

Any person who is present by the leave and license of the occupier may, as a general rule when the license has
been properly terminated, be sued or ejected as a trespasser, if after requesting and after the lapse of a
reasonable time he fails to leave the premises. A reasonable degree of force may be applied or used to control
the movement of a trespasser or eject him. As was the case of Simpson v. Weber (1925) 41 T.L.R. 302 This must
be distinguished from the case of a person lawfully in possession of land who refuses to give it up on the
termination of his lease or other interest.

5.4.3 Trespass by Placing Things on Land.

It is a trespass to place anything upon the plaintiff’s land, (in the case of Turner V.Thorne (1960) 21 D.R.L. 2(d) 29
(Parcels delivered in error) or cause any physical object or noxious substances (McDonald v. Associated Fuels
(1954) 3 D.L.R. 775 (Blowing carbon into a house is a trespass). To cross boundary of the plaintiff’s land or even
simply to come into physical contact with the land, though there may be no crossing of the boundary.

For example, to turn cattle upon that land, or to throw stones upon it or to drive nails into a wall, or to lean on a
ladder, planks, or a shed, or to pile rubbish against it. (Westipp v. Baltock (1939).

5.4.4 Trespass Beneath and Above the Surface

In general he who owns or possesses the surface of land owns or possesses all the underlying strata also
(Gorbett V. Hill (1870) L.R.9 E.q. 671). Any entry beneath the surface, therefore, at whatever depth, is an
actionable trespass. Where the possession of the surface has become separated from that of the subsoil (as by
conveyance of the subsoil for mining purposes, reserving the surface) any Infringement of the horizontal and
boundary thus created is trespass. It is also commonly said that the ownership and possession of the column of
space above and infinitum. The owner of the land has in private law right to use for his own purposes, to the
exclusion of all other persons, the airspace above it and as such he may cut the over-hanging branches of a tree
growing in his neighbours land, whether they do him harm or not yet he has no right of action against the owner
of the tree unless he can show actual damage.

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It ought not to follow from this that any entry above the surface is in itself an actionable trespass. Such an
extension of the rights of a landowner would be an extension of the rights of a land would be an unreasonable
restriction of this right of the public to the use of the atmospheric space above the earth surface.

In respect of aeroplanes and other aircraft, this matter is now dealt with by a statute. It is provided that no action
shall be in respect of trespass or in respect, nuisance, by reason only of the flight of an aircraft over any property
at a height above the ground, which, having regard to wind, weather and all circumstances of the case, is
reasonable, or the ordinary incidents of such flights, so long as certain provisions of the Act or any orders made
there under are observed. However, the owner of the air is liable for all material loss or damage caused by it, or
by a person in, or an article or person falling from it. While in flight, taking off, or running, whether to person or
property, without proof of negligence or intention, or damage had been caused by the willful act, neglect, or
default of the owner of the aircraft except where there is a contributory negligence, and gives the owner a right
of action over against the person whose negligence actually caused the damage.

5.5 Who May Sue in a Case of Trespass to Land?

5.5.1 A Lessee:

A lessee can sue for trespass because of the right he has been given by the lessor even a lessor
in such a

case can be regarded as a trespasser.

5.5.2 Tenant

A landlord cannot sue for mere trespass to land in the occupation of his tenant; such an action
can be

brought only by the tenant as was in the case of Attersoll Vs Stephen (1808) Tannt 183; 190

5.5.3 Land Lord

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 The landlord can bring action if he can prove more than a mere trespass, namely, actual harm
done to the property, such as sort to affect the value of his reversionary interest in it as
was in the case of Cottreau V. Roggerson (1966) 53 D.L.R.

5.5.4 Owner:

Ownership of land includes a reasonable distance beneath it. Mere use of land without the
exclusive possession of it is not a sufficient title to find an action of trespass for the
disturbance of that use. A lodger or boarder has no possession of the room in which he is
lodged and cannot sue in trespass for the disturbance of his use of it as was in the case of
Allan v. Liverpool Overseers (1874) LR 9 180.

5.6 Trespass by Relation:

He who has a right to the immediate possession of land and enters in exercise of that right is deemed by a legal
action to have been in possession ever since the accrual of his right of entry, and may accordingly sue for any
trespass committed since that time.

5.6.1 Trespass as Between Co-owners:

One tenant in common or joint tenant of land cannot sue his co-tenant in trespass or ejectment
unless the

act of the defendant amounts either to the total exclusion, or ouster of the plaintiff or to
destructive waste of the common property as was in the case of Murray V. Hall (1849) 7 CB
441

5.7 Defenses in Trespass to Land:

5.7.1 Licence:

A person will have a good defense to trespass if he can prove that he has a license. A license is
that consent which without passing any interests in the property to which it relates, merely
prevents the acts from which consent is given for being wrongful. The license given may
be express or implied license to entre upon land on delivering goods or rendering a service.

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 5.7.2 Justification by law:

Entry to land in many cases will be justified by law. Police officers (city or local municipal police
officer, administrative police, chief, etc) have both statutory and common law powers to
enter upon land; many other officers who are employed by the government departments,
statutory boards and local authorities, can enter upon land pursuant to statutory authority,
so long as he complies with specific conditions. However, when a constable is lawfully on
the premises (for example with the consent of the

occupier or, it seems, pursuant to a lawful entry under section (8) he may seize anything which
he reasonably believes to be evidence of any offenses provided he has reasonable grounds
to believe it would otherwise he concealed, destroyed etc.

5.7.3 Act of Necessity:

Entry upon land of another is justifiable on the grounds of necessity. For example, putting out
fire for public safety on or in defense of the country or entry on land to save a child from being
fatally harassed by a bull.

5.7.4 Prescription:

A defendant may plead prescription, as by showing a right of common grazing or right of way
over the plaintiff’s land. For instance, the defendant may argue that the land was owned
communally by the family or tribe or clan.

5.7.5 Involuntary Act

The act of trespass was involuntary and without any negligence. For example, where a horse or
donkey runs away with the defendant may argue that it was completely out of his reasonable
care to prevent the horse from trespassing to the plaintiff’s land. But it will be no defense or
donkey has for a reasonable period been doing this as he would have taken corrective
measures to avoid this. It is the nature of animals like cats and dogs to be trespassing and
so they are excuses.

5.7.6 Juster Tii:

That is a person trespassing had the right or title to possession of land. That is he has better title
than the plaintiff.

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 5.8 Remedies to Trespass to Land:

5.8.1 Re-entry

The person entitled to possession can enter or re-enter the premises. It is an offense for

anyone, safe the displaced residential occupier to use or threaten violence for the

purposes of security entry to any premises occupied by another.

5.8.2 Distress Damage Feasant:

It is unlawful for any occupier of land to seize any chattel which is unlawfully upon his land and
have done or are doing damage there, and to detain it till payment of compensation for the
damage done. This right is known as that of distress damage feasant. Normally, the things so
distrained were cattle or other trespassing animals, but the animals Act 1971 section
seven has abolished the right to seize and detain any animals by way of distress damage
feasant, and substituted, a new remedy which gives the occupier a power of sale. But distress
damage feasant still exists and it is established that the right extends to all chattel or
animate. Thus a railway company has been held entitled to seize and detain a locomotive
engine which has wrongfully encumbering its lines. So an occupier is not obliged to return a
cricket ball or football which has broken his window pane. The right of distress damage feasant is based
in general, only in the occupier of land. Mere use without exclusive possession is, it may
be assumed, as

sufficient to confer this right as it is to confer the right to eject a trespasser or to sue in an action.

5.8.3 Ejectment

The plaintiff is entitled to use reasonable force to disposes the trespassers or to obtain the court orders
for his ejection. The court may also allow the plaintiff to use other people in ejection process. For
example the police. Here court will tale in to consideration the use of force to eject the trespasser but if
any only reasonable force should be used not to injure the trespasser.

5.8 4 Injunctions:

One can sue for injunction to restrict the defendant from continued trespassing.

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5.8.5 Sue for Damages

Occurs where the plaintiff has suffered physical damage to land or to property and sues for compensation to the
extent.

5.8.6 Mesne Profit

The action mesne profit is another species of action for trespass and lies for the damages which the
plaintiff has suffered out of possession of land. If the claimant was successful, he got possession of
land and no compensation for having been kept out of it, the action for mesne profits enables the
plaintiff to claim not only profit taken by the defendant during his occupancy but also damages for
deterioration and the reasonable costs of getting possession.

In Visram and Karssam V. Bhah (1965) E.A. 789. The plaintiff had leased to the defendant undefined
area in one of his plot for quarrying at a monthly rent. Defendant fenced the area but did not fence it
properly and so the plaintiff observed the quarrying operations of the defendants. It appears they were
quarrying outside the area.

Plaintiff merely complained of the quarrying outside the area leased. Plaintiff brought to action on
expiry of the lease for trespass. The judge awarded Kshs. 98,285. the award exceeds the total value of
the plot although it was considered the trespass was innocent.

On appeal the award was reduced to Shs. 9,396 being the amount of profit which the plaintiff lost due to
trespass.

5.9 CASES ON TRESPASS TO LAND

(ILLUSTRATIONS ON RISKS TO TRESPASS TO LAND)

(a) (Anderson V. Buckton, 1915) (Trespass by Cattle).

In this case the defendant’s cattle infected by a contagious disease trespassed on an

adjoining pasture and infected the plaintiff’s cattle. It was held that the defendant was

liable for the damages arising from the spread of the disease and for the damage to the

53
 grass.

(b) Moya Drift Farm Ltd., v. Theuri (1973) E.A.114.

The appellant was the absolute and indefeasible owner of registered land, but he was not in actual
possession of the land. Nevertheless the court of Appeal awarded the appellant a perpetual injunction
and mesne profits against the respondent, who was trespassing on the appellant’s land and refusing
the appellant and its servants entry. As spry, V.P., said in this case “The Act gives a registered
proprietor his title on registration and, unless there is any other person lawfully in possession, such as a
tenant, I think that cattle carries with it legal possession; there is nothing in the Act to say or even
suggest that his title is imperfect until he has taken physical possession”.

(c) Wuta V. Danguah (1961) 3 ALI E.R. 596

The plaintiff acquired land in Ghana which she did not physically occupy but she marked the land
with pillars according to Ghanaian customs. Because the plaintiff did not occupy the land
physically, the defendant placed some objects on that land and the plaintiff brought action against
defendant on trespass to her land and as such succeeded in her action for trespass. The council
held that any title is sufficient for possession even if one has not put up any structure or building on it.

5.10 KENYAN PERSPECTIVE:

The trespass Act (Cap. 244) of Kenya is more or less a copy of British law relating to the

same. The Kenyan courts have used this act with the help of the British law, common law

and in reference to decision reached by British courts.

In Kenya most cases brought to courts in connection with trespass to land have been mostly between
neighbouring landowners, farm owners, and trespass by cattle.

In case trespass by cattle the Act defines cattle as including bulls, cows, horses, sheep, goats, pigs and
even poultry, but not cats and dogs. It is in the nature of cats and dogs to trespass.

Most plaintiffs or defendants have failed to succeed due to ignorance of law and lack of

54
 layers who can guide them on which defenses or proofs they can apply for consideration

by the court.

Some critics have criticized the almost whole adoption of British law as this, law fails to recognize
some African customs and traditions on land and trespass to the same. Some sections of this Act
contradicts with African concept on the trespass to land hence some quarters feel African justice has
been replaced by British justice which is not necessarily just in Kenyan context. For example what
trespass would a father have committed by grazing his cattle in his son’s land which his father gave him
if the son insists he committed trespass?

5.11 SUMMARY

Trespass to land has been defined as “unjustifiable interference with the possession of land”. We have
seen through the discussions that there are various conditions that would constitute trespass to land
among them: wrongful entry, remaining on land when asked to leave, placing things on land, excavating
underneath one’s land, interfering with space above one’s land etc. It is important that the students
understand who has rights over land that this individual may feel aggrieved through an action of trespass
to trespasser may have in a case of trespass against him. The learner should familiarize
himself/herself with these defenses.

ACTIVITY

1. Explain what constitutes trespass to land

2. What remedies does the owner of land have against a trespasser?

3. What does the case of Wuta v Dunguah illustrate?

55
4. How does ownership of land affect trespass to land?

5. Define the following terms: mesne profits, lessee, lessor and tenant as they relate to trespass to
land

6. What defenses does a trespasser have against a case of trespass

References:

Winfield and Jolowics on Torts

Tudor Jackson: The law of Torts

R.F.V. Hauston: The law of Torts:

Ashiq Hussain A textbook of General Principles and Commercial law of Kenya

56
LECTURE 6: RISK OF TRESPASS TO CHATTEL

Lecture Outline

6.1. Introduction

6.2 Objectives

6.4 Conversion

6.5 Who can sue under Trespass to Chattel

6.6 Tenets of Conversion

6.7 Defenses to Conversion

6.8 Measures of Conversion

6.9 Remedies to conversion

6.10 Trespass and conversion distinguished

6.11 Detinue

6.12 Replevin

6.13 Summary

6.1 INTRODUCTION

Chattels mean goods. Trespass means any legal wrong for or any direct and forcibly injury to person, land or
chattels. The tort of trespass consists in committing without lawful justification, any act of direct physical
interference with goods in the possession of another. Trespass is committed to a person’s goods, if there is
wrongful physical interference within them, such as for example, as motor vehicle is struck by B.S. A, however,
will have no remedy in law against B in trespass unless he can prove that B’s conduct in causing damage to this
property was negligent. So in committing trespass to chattel, there must be willful and unlawful act to the right
use of such property.

The tort of trespass is wider than conversion in that a mere act of interference is sufficient, special damages
need not be proved and it is not necessary to prove denial a title and must narrow and direct. The tort may be
committed against an animal. For example to beat a dog. Even negligent damage, (Provided that it is direct and

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not merely consequential: falls within the scope of trespass. Physical interference usually consist in some form,
physical contact, some application of force by which the chattel is moved from its place or otherwise affected.

5.2 Objectives

The objectives of the Lecture are:

1. To help the student understand the ramifications of taking another persons property

2. To apply the law related to chattel in everyday’s life

3. To differentiate between trespass to chattel, conversion and detinue

4. To be able to understand and use the available defenses available when confronted by trespass situations

6.3 Definition of Trespass to Chattel

Trespass to goods or chattel can be defined as the wrongful interference with the enjoyment of, and the right to
use a good. For example it’s a trespass to take away or to do willful damage to another person’s goods. An
example of trespass to goods is found in the case of KICK VS GREGORY. The plaintiff was the executer of one who
had died in his own house. The defendant, alarmed by the fact that the servant and others were feasting and
drinking in the house, moved certain rings from one room to another in the mistaken but genuine belief that it
was necessary to do so. The defendant was held liable for the loss of the loss of the rings.

In order to succeed in case of trespass to chattel there must be proof of damage by the plaintiff. Trespass to
chattel is actionable per-se. you do not have to prove that there was loss of profits or damage. Any unauthorized
towing or moving of an object is actionable at the suit of the possession of it. It was once unnecessary for the
plaintiff in an action of trespass to prove intention or negligence. However, the general principle that liability:-
trespass to goods is strict has been weakened by two exceptions. One of the exceptions is the highway accidents.
A person whose property is on or adjoining the highway has been damaged accidentally as a result of the
activities of the use of the highway can recover only if he establishes negligence. Inevitable accident is also an
exception in the case of proof of damage. This was explained in the case of National COAL BOARD Vs EVANS
where the plaintiff’s procedures in title laid an electric cable under the land of a county council without
informing it as the defendants’ contractors whom it employed to conduct this excavation in the course of which
the cable was damaged. The court of appeal held that inevitable accident was a good defense to an action for

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trespass. The accident was mainly attributable to the acts of the plaintiff in the wrongful placing their cable in
another’s land therefore the defendant’s were excused as being without fault.

The plaintiff must also prove wrongful interference. This means that the defendant had no legal rights to
interfere with the goods or chattel. Therefore must also be direct and unlawful application of force. Here there is
no need to prove actual damage to the property. Force does not necessarily involve physical contact as long as
there is denial. You must prove negligence on the part of the defendant. The defendant must have had no right
of possession. There are many examples of possession. For example: Tenants; agents who can sue for damages
for the good entrusted on him by the principal; trustee. Bailees who have possessional right and can sue in
trespass.

A reversionary right is also another proof of trespass to chattel. This can be defined as the right that any person
in possession has to convert the property or even to sell it. For example the lessee does not have reversionary
interest: a person who hires a car does not have reversionary rights but the owner has. It follows therefore that if
one does not have possession, he/she cannot succeed in trespass. Owners of good, tenants, bailees, agents,
hirers and trustees have the right to sue trespass to goods they possess. In SULLIVAN VS OSMAN (1959).the
plaintiff claimed 16,490/= as special damage alleging that the defendant without authority or consent,
wrongfully and willfully interfered with the lorry by ordering the driver employed by the respondent to drive the
said vehicle to the corp. station. He incurred damages and loss in that he was deprived of the use of the vehicle
in transport for 49 days. He was charged and convicted in 6 traffic offences which convictions were subsequently
set aside on appeal. Judge of appeal heard that there cannot be no doubt that any actual physical interference
by the defendant or his agent with the goods of which the right of possession lies with the plaintiff constitute
trespass in the case of goods whether due to physical damage without removing them or removing them
without physically damaging them.

6.4 Conversion

Another form of trespass to chattel is conversion. It is defined as a wrong committed by dealing with the
goods or a person which constitutes an unjustifiable denial of his rights in them or the assertion of rights
consistent therewith. Therefore when one interferes with another’s goods such that he denies the owner
of them the right of immediate possession, then this is conversion and is treated as a crime. But a mere
possession, then this is conversion of such goods with title does not constitute conversion unless the title
of such goods are denied to a person. For example a bailed negligently allows goods in his charge to be
destroyed, the plaintiff loss is just the same as if the bailee had wrongfully sold them to a third party but
there is no conversion because the negligence (as opposed to deliberate destruction) is not an ascertain
of any rights in the goods. There are a number of situations which constitute risk of conversion. In
respect to chattel. One of these is when goods are wrongfully sold even if sold in good faith. This was
the ruling in the case of CONSOLIDATED COMPANY VS CURTS (1892). In this case an auctioneer

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 was handed goods to sell by the client. The client was not the true owner and the auctioneer quite
unaware of the true position sold the goods. The court held that he was liable for conversion.

There also exists a risk of conversion where property is wrongly retained. This was the ruling in the
case of AMIRY Vs DELMIRE (1721). In this case the plaintiff, a chimney sweeper found a jewel which
he handed to the defendant for valuation. The defendant refused to return it to the plaintiff. The courts
held that the defendant was liable for conversion. The risk of conversion also exists where a chattel is
wrongfully destroyed. For example if one destroys chattel of another and as a result the chattel changes
its identity then there is conversion. But a mere damage to property may not constitute conversion.
Conversion may occur where one disposes of a chattel belonging to someone without his permission.
This was the ruling in the case of NORTH CENTRAL WAGON AND FINANCE COMPANY LTD. VS
GRAHAM (1950). In this case one “A” instructed defendant “C” to sell his car, the company sued him
for conversion and the court held that the company could succeed because they had breached the
contract of hire. Where the defendant is in possession of the plaintiff’s goods, there is an act of
conversion if there exists an unjustified refusal to return them. But it has been heard that there is no
conversion if the defendant simply refuses to allow the plaintiff to remove them. This assertion was
explained in the case of ENGLAND Vs COWLEY. In this case “M” owned money to both the plaintiff
and the defendant her landlord. The plaintiff heard that a bill of sale over “M” furniture and put
a man into “M’s” house to take charge of it. When the plaintiff attempted to remove the furniture the
defendant forbade him to do so and stationed a policeman at the gate to make sure that he did not.
The court held that the defendant was liable for conversion.

6.5 Who can Sue?

Any person who is entitled to immediate possession as against the defendant may sue. He may even sue
the true owner where the goods are returned to him for some specific purpose, but he later refuses to
deliver it. For example “A” rents a television set from “B” for three months for which he has paid rent in
advance. After having used it for one months. Some fault developed in the set, and “A” takes it to “B”
for checking. But “B” refuses to re-deliver the set to “A”. In such a case. Though B is the true owner, he
will still is liable in conversion to “A”.

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 6.6 Tenets of Conversion

There are three major tenets of conversion and the first one is that there must be some sort of delivery
without title. The denial of passion is either temporary or permanent and whether you are holding
goods when exactly knowingly that they do not belong to not belong to you.

5.7 Measures of Conversion

Where the defendant is no longer in possession of the plaintiff goods because for instance he has
destroyed them or disposed them, it amounts to conversion. The plaintiffs remedy is judgment for the
value of the goods together with any consequential loss which is not too remote. After some initial
hesitation it now seems to be generally accepted that the value should be assessed at the date of the
conversion. The only remedy for conversion at common law was the purely personal one of damages.
However, when the defendant was in possession of the goods and refused to deliver them up, his act
was not only conversion but also detinue and the form of judgment might include an order for the delivery of
the goods. The problem of a measure of conversion where there is improvement of goods is
illustrated by MUNRO Vs WILLMOTT. The plaintiff was given a temporary license to leave “let car” in the
defendant’s yard. After the car had been there for some years, the defendant wished to convert
the yard into a garage but was unable to communicate with the plaintiff. Accordingly, he “did up” the car
(then worth 120 dollars) at a cost of 85 dollars and then sold it for 100 dollars. In proceedings for
conversion, the judge felt obliged to assess the value of the car at the date of judgment (120 dollars) but
gave credit for the sum expected by the defendant, leaving 35 dollars as the damages recoverable by the
plaintiff.

6.8 Defenses to Conversion

In case one is faced with the risk of conversion, the following are ineffectual defenses. Mistake is one of
the defenses. Although a conversion is necessarily an intellectual wrong in the sense that it need not be
knowingly wrongful. A mistake of law or fact is no defense to anyone who intentionally interferes with
a chattel in a manner inconsistent with the right or another. He does so “SUR PERICULO” and takes
the risk of the existence of a sufficient lawful justification for the act. If it turns out that there is no
justification, he is just as responsible in an action of conversion as if he had fraudulently
misappropriated the property’

Contributing negligence is another defense where at common law there were a number of statements
to the effect that contributory negligence was no defense. The majority view was that an owner of
property was entitled to be as careless as he liked. As liability in conversion is strict, the strange results
was that a person is not bound to look after his own property as carefully as other people are to
look after it for him. Section 11(i) of 1977 Act dismissed the defense of contributory negligence in
proceedings found in conversion or an intentional trespass to goods.

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 Remoteness of damage is also an ineffectual defense where a defendant has willfully interfered with
goods without lawful justification and loss occurs from the interference, the fact that such a loss was
not intended, or even that it was not the natural or probable result, is no defense. This was supported by the
case of HIORT Vs BOTT. In this case the plaintiff by mistake fraudulently included by his own agent,
consigned certain barley to the defendant which he had not offered. They also made a delivery order
which made the barley deliverable “to the order of consignor” to enable him to obtain it from the
carrier. The plaintiff’s agent thereupon informed the defendant that the consignment was a mistake and induced
him to endorse and handover the delivery order to him (the agent) in order that the goods might be
obtained by him from the carrier and redelivered to the plaintiff. The agent obtained the possession of
the barley, sold it and absconded with the proceeds. In this case the defendant was held liable. The
other ineffectual defense is when the defendant is acting on account of another. The defendant is equally liable
if he has acted for the benefit of another person as his agent or servant. However merely ministerial
dealing with the goods at the request of the owner having the control over them is not conversion.
When the act is done for the benefit of the two owners and with the honest intention of restoring the property
it is still amounts to loss of the property. The fact that loss is not permanent cannot be used as a defense
for conversion. Loss of deprivation of possession need not be permanent. The period of disposition is
what is relevant with respect to determination of damages, but makes no difference to the nature of the
wrongs.

6.8.1 Effectual Defenses

There are however a number of defenses available in cases of conversion. One can argue that he was in
mere custody of the goods and did not have the intention of destroying the goods although this is
not a strong defense. The other defense which can be used is to adopt the defense if contributory
negligence but one must argue that the plaintiff contributed by giving authority to deliver the goods.
Similarly, the defendant can argue that the plaintiff’s possession was not immediate or that the plaintiff
had insufficient possession.

6.9 Remedies to Conversion.

Some remedies can also be taken incase of the risk of conversion. Reception is one of the remedies and
the plaintiff is entitled to possession of goods which have been wrongfully taken away from him
provided he was no more than reasonable force. There can also be an order for specific restitution. The
court may in its discretion order specific restitution of the goods if the award of damages is not an
adequate remedy. For example in case of goods which are not easily available in the market. Also an

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 action for damage can be taken as a remedy. The plaintiff is entitled to claim the full value of the goods
and damages for any inconvenience suffered by him while he is deprived by their use.

6.10 Trespass and Conversion Distinguished.

There exists a difference between trespass and conversion. Trespass is a wrong to the actual possession.
Conversion is a wrong to the person entitled to immediate possession. Trespass consists of damaging or
interfering with the goods of another without intending to exercise adverse possession over them while
conversion is a breach made adversely in the continuity of the owner’s dominion over the goods.

6.11 Detinue

It is defines as “the wrongful withholding of the goods of another”. This is the requirement that you
only need to reposes your property trespassed upon. This is common in bailment where the bailee
refuses to return the property. In other words, you only strive to re-poses what has been taken. This is
also one of the risks arising from trespass to chattel. One only sues for the goods which have been taken
and not for damage. At common law a claim in detinue laid the suit of person who had immediate right
to the possession of the goods against another who is in actual possession of them and who upon
proper demand failed or refused to deliver them without lawful excuse. If the plaintiff succeeds he obtains
judgment which may take one of the following forms.

i) For the value of the chattel as assessed and also for damages for its detention.

ii) For the future of the chattel or recovery of its value as assessed and also for its detention.

iii) For the return of the chattel and damages for its detention

The difference between conversion and detinue is that in conversion the plaintiff has been denied and in detinue
the plaintiff may still have a title to the particular property.

6.12 Replevin

This is another form of trespass to goods which is an ancient cause which is theoretically applicable to any
trespassory taking of goods but in practice is limited to taking by wrongful distress. The modern procedures in
the action’s for the plaintiff to apply to the registrar of the court, who will see that the goods alleged to have

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been wrongfully taken are restored to the plaintiff on his giving security to prosecute on action of REPLEVIN in
the country court or in the high court. Whenever a chattel has been taken by one out of the possession of
another whether by way of distress or otherwise, the latter may be by way of proceedings in replevin recover
immediate and provisional possession of them, pending the results of an action brought by him to determine the
rights of the parties. The right to replevy goods is a right to get them back at once and provisionally. On giving
security to bring an action of reprelevin instead of having first to establish one’s title to them in an action of
conversion detinue or trespass, the plaintiff need to prove that at the commencement of the action he was the
owner or entitled to possession of the chattel(s) in question.

Replevin is allowable only when the chattel(s) have been taken by a trespass by the defendant out of the
plaintiff’s possession. The procedure if there is a risk that the goods may be destroyed or disposed of before trial
of the action but it is not confined to such situations. An order was made under it in HOWARD E. PERRY AND
COMPANY LTD. VS. BRITISH RAILWAYS BOARD. Even tough goods were in no danger and the industrial action was
acute and damages would not adequately compensate the plaintiff’s for the injury to their business. There are
cases where replevin is not available.

For mere detention.

For dispute as to the title or right of possession Replevin is exercised in cases of distress whether for
rents, for rates, damage feasant or otherwise (though it is legally available for all firms). For example, if
the plaintiff succeeds in an action of replevin. i.e. keeps the property which has been thus provisionally
restored to him and has a judgment for all damages for example annoyance in his trade. However, if the
defendant succeeds, e.g. has judgment for the restitution of the property, replevin enables a man whose
possession of goods have been taken away to obtain their return until the right of the goods can be
determined by a court of law. This procedure has been regulated by statute. The plaintiff goes before
court registrar and either deposits or enters into a bond with a securities conditioned to commence an
action of replevin with a specified time to prosecute it with effects without delay and to return the
goods if they have not been redelivered. If he succeeds i.e. he may recover any special damage sustained and
also the value of the goods if they have not been redelivered.

He may also recover the expenses of replevin bond and any special damage which he sustained by
wrongful taking.

6.13 SUMMARY:

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Generally, an action for trespass to goods lies where there is wrongful interference with another persons goods
which are in his possession. Since the interference includes actual taking of or a direct and immediate injury to
the goods. This tort aims to protect personal property. The student should be able to understand the general
differences between trespass, conversion, detinue and replevin. Possession is key to a case of trespass to chattel
and the student should be able to who has legal possession to chattel.

ACTIVITY

1. What constitutes trespass to chattel?

2. What do you understand by “legal possession”?

3. Define the term “Reversionary Rights” as used in trespass to chattel

4. Differentiate between detinue and replevin

REFERENCES

1. Heuston R.F.V and R.A. Buckley The law of Tort,

2. Ashia Hussein, General Principles and commercial law of Kenya

3. Winfield and Jolowiez on tort (thirteenth Edition) W.V.H. Rodgers.

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LECTURE 7: TORT OF TRESPASS TO THE PERSON

Lecture Outline

7.1 Introduction

7.2 Objectives

7.3 Definition of Trespass to the Person

7.4 Defenses to False Imprisonment, Assault and Battery

7.5 Summary

7.1 INTRODUCTION:

The term trespass has been used by lawyers and laymen in three senses of varying degrees of generality:-

In its widest and original significance, it includes any wrongful act, any infringement or transgression of the rule
of right. This use is common in the authorized version of the bible and was presumably familiar when that
version was first published it never obtained recognition on the technical language of law and is now archaic
even in popular speech.

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 In a second and narrow signification, its true legal sense, the term means any legal wrong for which the
appropriate remedy was a write of trespass viz any direct and forcible injury to person, land or chattels.

The third and narrowest is that in which, in accordance with popular speech it is limited to one particular kind of
trespass in the second sense i.e. the tort of trespass to land (trespass quare clausum fregit). It is important also
to realize that actions which lead to personal injury may bring action against the person carrying out an
unauthorized act. As related to other forms of trespass, everyone is entitled to safety and peace of mind and our
actions must be such that they do not interfere with this right.

7.2 Objective

At the end of the lecture the student should understand the three types of trespass to the
person and relate it to everyday’s life.

7.3 Definition of Trespass to the Person

Trespass to the person is any direct and immediate interference with personal liberty and is actionable even
without proof of damage. The law goes to great lengths to protect a person of full age and capacity from
interference with his personal liberty.

Trespass to a person may take the following forms:-

i) Assault

ii) Battery

iii) False imprisonment and abuse to legal process.

7.3.1 Assault

Assault is the act of putting another person in a reasonable state fear or apprehension that the plaintiff is
in real danger. It’s therefore a conduct or threat to do violence to another. The threat must be accompanied by
the ability to carry it out. There need not be bodily contact for assault to arise for example pointing an unloaded

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gun to another person or even threatening to pull a person from a chair at a meeting may constitute an act of
assault.

Mere words do not constitute an assault. However, insulting or even menacing with the intent to do violence
must be expressed in threatening acts not merely in threatening speech. There need be no actual intention or
power to use violence for it is enough if the plaintiff on reasonable grounds believes that he is in dander of it.

It is not an assault to shake ones fist at a man standing on the other side of the road, or to utter oral threats with
no show of force.

Also more passive obstruction does not constitute an assault although if the plaintiff is thereby hindered
from going about his lawful occupations he may use reasonable force by way of self defense.

An assault is not merely a tort but also a criminal offense and the civil and criminal remedies may
sometimes be concurrent and cumulative. In assault the plaintiff must have been put in a reasonable state of
fear. He must prove that he was caused to fear or that he suffered loss. Therefore an act is not assault if it does
not cause reasonable fear to the aggrieved party. For example it cannot be said that a child caused assault to a
normal and grown-up person. Most the cases of assault come from an age when the means of the
communication and of inflicting violence were less developed than today and so a modern court might hold
some oral threats actionable. Contrary wise words accompanying an act may render harmless what might
otherwise be an assault.

Just as there can be a battery without an assault, so also there can be an assault without a Battery, as
where the defendant has no intention of carrying through his threatening gesture but knows that the plaintiff is
unaware of this. This is explained in the case of STEPHENES vs. MYERS, the plaintiff was in the chair at a parish
meeting.

The defendant who sat at the same table six to seven places away from the plaintiff, became vociferous
and a large majority of the members were agitated. It was resolved that he be expelled. He said he would rather
pull the plaintiff out of the chair than be ejected and he advanced with clenched fist upon the plaintiff, but was
stopped by the church-warden who sat next but one to the plaintiff. He was held liable for assault.

7.3.2 Battery

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Battery is the intentional and direct application of force to another person. This is coupled with physical injury.
It’s therefore the actual unwarrantable striking of another person or mere touching in a rude manner, pouring
water on or spiting in another’s face.

In battery it’s immediately whether the force is applied directly or indirectly to the person. However, it
should be noted that not every body contact is a battery, for the parties intention and circumstances must be
taken into account e.g. traveling in a crowded bus in peak hours will create inevitably the situation in which
people will come into bodily contact with each other.

It is battery to project heat, light, noise or vappour onto another person in such a manner as to cause
physical injury or personal discomfort. However, the appropriate tort for personal injuries resulting from medical
treatment is battery, but not negligible whether the infliction of such things as heat. Light or blowing smoke
upon a person would be held to be battery is uncertain, but there is no doubt that if injury is thereby caused it
would be actionable on the principle of WILKINS Vs DOWNTON, where A by way of practical joke, falsely told the
plaintiff, a married woman, that her husband had met with an accident whereby both his legs were broken. She
believed this was so violently upset by the consequent nervous shock that she had a serious illness. A. was held
liable.

If however, there is “force” in the technical sense. No physical hurt is necessary, for all forms of trespass
are actionable per se, where there is consent to the contact there is no battery and the same is true if the
plaintiff thought not infact consenting. So conducts himself as to lead the defendant reasonable to believe that
consent exists. This is explained in the case of COLE Vs TURNER. Hold C.J. said that. “The least touching of
another in anger is a battery”. However, the court of Appeal in WILSON Vs PRINGLE has laid down that a battery
involves a “hostile” touching. Though this seems to mean little more than the defendant willfully interferes with
the plaintiff in a way to which he is known to object.

In the above case, the defendant, a schoolboy had on his own admission pulled the plaintiff’s bag from
his shoulder and thereby caused him to fall to the ground and injure himself. Such horsebly, it seems, may or
may not be battery, according to whether the tribunal of fact can discern the ingredient of “hostility”

In all cases, the test must be whether the physical contact so persisted that under the circumstances it had gone
beyond generally accepted standards of conduct. For battery therefore there must be voluntary act by the
defendant. I do not commit battery against you (D) if X seizes my arm and uses it like a club. Here X and X alone is
liable. But the act need be intentional only as to the contact and intention. To bring about the harmful

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consequence is not required: If D pushes P into a swimming pool and injury occurs, then assuming D’s act to be
“hostile” there is liability for the injury even though it was neither desired nor even foreseen by D.

7.3.3 False Imprisonment

False imprisonment is a tort, and possibly a crime, wherein a person is intentionally confined without legal
authority.

The element of the tort is:

Intention to confine another person against his or her will. In Australia, this element will be fulfilled if the
imprisonment is negligently occasioned. In the United States, the possibility of false imprisonment arises if the
imprisonment causes bodily harm or if the alleged victim is aware of the confinement of another person against
his or her will.

Absence of a reasonable means of escape.

A means of escape will not be reasonable if it endangers personal safety, such as leaping from the widow of a tall
building. In some jurisdictions, awareness of the confinement by the person so confined is sufficient. In both
England and Australia, consciousness of imprisonment is not an element of the tort.

Absence of legal authority on the part of the person acting to confine another constitutes false imprisonment.

The following are false imprisonment scenarios.

 The taking hostage of a bank’s customers and employees by the bank robbers

 The detainment of a customer by a business owner (e.g. hotel operator, apartment owner, Credit Card
Company) for the failure to pay a bill. However, there is something known as the “merchant’ exception”.

 A store operator may detain a suspected thief for a reasonable period of time to conduct an investigation
of the facts or situation.

Not all detainments constitute false imprisonment.

Police Privilege

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A police officer has the right to detain someone if there is probable cause to believe a crime has been
committed, and that the person is involved, or the officer has reasonable suspicion that the person has been, is,
or is about to been engaged in criminal activity based on specific and articulable facts and inferences.

Shopkeeper’s Privilege

A store owner holds the common law shopkeeper’s privilege, under which he is allowed to detain a suspected
shoplifter of store property for a reasonable period of time, with cause to believe that the person detained in
fact committed, or attempted to commit theft of store property. The shopkeeper’s privilege, although recognized
in most jurisdictions, is not as broad a privilege as that of a police officer’s and therefore one must pay special
attention to the temporal element, that is, the shopkeeper may only detain the suspected criminal for relatively
short period of time.

Rationale

The privilege accorded a shopkeeper has been justified by the very practical need for some degree of protection
for shopkeepers in their dealings with suspected shoplifters. Absent of such privileges, a shopkeeper would be
faced with the dilemma of either allowing suspects to leave without challenge or acting upon his suspicion and
risking a false arrest.

Requirement

Most US states recognize a privilege, usually limited to shopkeepers to detain temporarily for investigation
anyone whom they reasonably suspect of having tortuously taken their goods or his attempting to. In America to
properly exercise this privilege all the following conditions must be satisfied:

1. Investigation on or near premises; the detention itself must be effected either on the store premises
or in the immediate vicinity thereof. A majority of courts state the privilege to detain is lost once
they leave the store’s property. US courts do allow shopkeepers to chase after the person to
recapture their lost merchandise when they are in “fresh pursuit” The investigation must be to
determine ownership of the property, not to force a confession.

2. Reasonable suspicion: The shopkeeper must have reasonable grounds to suspect the particular
person detained.

3. Reasonable force only: Reasonable, non-deadly force may be used to effect the detention. Use of
force is justified when the suspect is in immediate flight or violently resists detention. They may not
handcuff a customer, lay them on the ground, sit them on the ground or not allow them to look for a

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 receipt. Credibility and contradictory testimony is for a fact finder, i.e. a jury or judge to determine.
Doing so is evidence to support damages of false imprisonment, and even gross negligence if the
conduct involved an award of exemplary damages.

4. Reasonable period and manner detention. The detention itself maybe only for the period of time
necessary or reasonable investigation (usually very short) and must be conducted in a reasonable
manner. US Courts have found that it may be only for 10 and never longer than 15 Minutes. A
detention can be accomplished by means which retains the party so detained from removing from
one place to another as he may see proper.

If one of the conditions is not satisfied the shopkeeper losses the privilege and can be liable for false
imprisonment, and any other torts they commit.

Note: Reasonable mistake protected:

Where these conditions are established, the shopkeeper is immune from liability for false arrest, battery, etc. –
Even though it turns out that the person detained was innocent of any wrongdoing if they satisfied all the
requirements.

The shopkeeper’s privilege does not give immunity for defamation claims against the stores;

They are not entitled to qualified privilege to publicly accuse the suspect of shoplifting. Statements may be made
privately during the course of investigation or they must be able to show such statements were made without
malice (that is a statement made with knowledge of its falsity or with reckless disregard as to its truth). To avoid
liability for defamation, the person must be acting in good faith, the communication passes only to persons
having an interest or duty in the matter to which the communications relate.

Purpose

The privilege for the most part is to be able to return the stolen goods. The shopkeeper may not force a
confession. They do have a right to conduct a contemporaneous search of the person and the object within that
person’s control.

Claim of False imprisonment

To prevail under a false imprisonment claim, a plaintiff must prove; (1) willful detention; (2) without consent; and
(3) without authority of law.

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The test of liability is not based on the store patron’s guilt or innocence, but instead on the reasonableness of
the store’s action under the circumstances; the Trier of fact usually determines whether reasonable belief is
established. A guilty shoplifter can still sue for false imprisonment then if the detention was unreasonable.

Illustration 1 of a case

In Louisiana, a pharmacist and his pharmacy was found guilty by a trial court of false imprisonment. They stalled
for time and instructed a patient to wait while simultaneously and without the patient’s knowledge calling the
police. The pharmacist was suspicious of the patient’s prescription, which her doctor had called in previously.
When the police arrived, they arrested the patient, while the patient was in prison, the police verified with her
doctor that the prescription was authentic and that it was meant for her. After this incident, the patient sued the
pharmacy and its employees. She received $ 20,000 damages. An appeal court reversed the judgment, because it
believed the elements of false imprisonment were not met.

Illustration 2 of a case.

In Colorado, a woman sued a police officer for false imprisonment after being arrested for not leashing her dog.
The plaintiff was in her car when she was approached by the officer, and when she asked to produce her driver’s
license and failed to do so, she was arrested. She won her claim, despite the fact that having lost the case of not
leashing her dog, the court reasoned that the officer did not have proper legal authority in arresting her, because
he arrested her for not producing her driver’s license as opposed to the dog leash violation.

Meerig V. Graham White

The plaintiff was suspected of stealing and was asked by 2 of the defendant’s security to accompany them to the
company’s office and he accepted, the plaintiff would see the 2 defendants from the window. His security was at
liberty he brought action against them for false imprisonment and the court favoured him because from the time
the security guard asked him for company he was under their influence therefore not a free man.

Birds vs. Jones

The defendant enclosed part of the public footway and placed seats on it for use by spectators in sports on the
river sports. They charged a fee to that enclosure the plaintiff to pass along footway and climbed on the seats
without paying the fee. The defendants refused to let him go forward by telling him to go back and use the

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bridge crossing the river to the other side. He declined to do so and remained the closure for half an hour. The
court held that he had another way of going to his destiny thus no false imprisonment.

This infliction of bodily restraint which is not expressly or impliedly authorized by the law is false imprisonment.
Both “false” and “imprisonment” are somewhat misleading terms. “False” is used in the less common sense of
“erroneous” or “wrong”. It’s quite possible to commit the tort without “imprisonment” of a person in the
common acceptance of the term.

Neither physical contact nor anything resembling a prison is necessary, if a lecturer locks his class in the
lecture room after the usual time for dismissal have arrived that is false imprisonment and is a man us restrained
from leaving his own house or any part of it or be forcibly detained in the public street, is also false
imprisonment.

Therefore imprisonment is the restrain of man’s liberty whether it be in the field or in the stocks or cage
in the street or in a man’s own house as well as in the common goal. In all these as he has not this liberty freely
to go at all times to all places. This definition was accepted by the court of appeal in MEERIG Vs GRAHAME-
WHITE AVIATION COMPANY (1920) 122 L.T. 44.51.53.

Facts of the case, the plaintiff was suspected of stealing a key of varnish from the defendants his
employers was asked by two of their police to go with them to the company office. He assented and on arrival he
was taken or invited to go to the waiting room, the two policemen remaining on the neighborhood.

The defense was the plaintiff was perfectly free to go where he liked. He knew it and he did not desire
because the plaintiff from the time that he came under the influence of the police was no longer a free man.

The basis of law as stated in this case outlined that personal liberty is important so that interference with
it must be deterred even when there is no consciousness nor harm.

In cases of false imprisonment restraint must be complete. The tort of false imprisonment is not
committed unless motion be restrained in every direction. This was illustrated in case of BIRD Vs. JONES. In this
case the defendants enclosed part of the public footway, put seats in it for the use of spectators of a regatta on
the river and charged for admission to the enclosure.

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 The plaintiff insisted on passing along this part of the foot path and climbed over the fence of the enclosed
without paying the charge. The defendant refused to let him go forward but he was told that he might go back
into the carriage way and cross to other side of the bridge if he wished.

He declined to do so and remained in the enclosure for half an hour. The defendants were held not to have
committed false imprisonment since the plaintiff had the right and avenue to leave. However, if a plaintiff suffers
damage an action on the case might lie. Also to constitute false imprisonment, the person must be derived
means of escape. It someone pretended to turn the key, it would seem unreasonable if he made no attempt to
see whether the door was in fact locked. False imprisonment contravenes the right enshrined in the constitution
of freedom of Movement. No action for false imprisonment will lie against a person who has procured the
imprisonment of another by obtaining against him a judgment or other factual order of court of justice even
though that judgment or order is erroneous, irregular or without jurisdiction.

The proper remedy in such a case is an action for malicious prosecution or other malicious abuse of a
legal process. This fact can be seen in the case of AB SINDANO Vs ANKOLE DISTRICT ADMINISTRATION SUIT NO.
463(1969).

In this case a legal chief and other officers to find graduated tax defaulters arrested the Plaintiff. He was
forcefully removed from a bus by two askaris acting on authority of the chief. The plaintiff had his hands by the
same rope to a wooden post which supported

Street light equipments at a trading centre. He was left for forty minutes which was untied and matched
off escorted by the chief and askaris to the headquarters where he was detained in a room for about 12hrs. The
judge held that the plaintiff was unlawfully arrested and imprisoned. He was awarded damage amounting to khs.
10,000, which included exemplary damages.

7.3.4. Battery

Intentional and direct application of force to another person coupled by actual physical injury. It
constitutes bodily contracts, striking, weird touching of another person.

Not all bodily contracts amount to battery for instance, in crowd companies or traveling of attending to a
pregnant woman to save a life.

Battery Cause personal injury

Stanley vs. Powell

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 The defendant while firing a pheasant accidentally and without negligence shot the plaintiff with a pellet
that ricocheted from a tree at a considerable angle. It was held that there was no negligence and therefore no
liability. However, this case did not go far as entirely to equate trespass to the person and negligence and until
1957 it was thought that in trespass the defendant must prove that he was not negligent.

Fowler vs. Lanning 1959

It was held that the burden of proving negligence in all actions for unintentional trespass to the person
lies on the plaintiff, In this case the plaintiff in his statement of claim alleged that the defendant shot the plaintiff
whereby he sustained personal injuries and has suffered loss and damage, on a hearing of a preliminary point of
law, it was held that the statement of claim disclosed no cause of action; for in such a case whether or not the
alleged trespass occurred on the highway, the onus is on the plaintiff to prove that the defendant caused the
injuries intentionally or negligently and accordingly such intention or negligence must be pleaded and if
negligence is pleaded particulars must be given.

7.4 DEFENSES IN CASES OF FALSE IMPRISONMENT. ASSAULT & BATTERY

Most of defense depends upon conditions which in general negate liability in Tort.

7.4.1 Defense of Reasonable Condition.

It is no Tort to prevent a man from leaving your premises because he will not fulfill a reasonable
condition subject to which he entered. This was established in the case of ROBINSON Vs BALMAIN FERRY
COMPANY LTD. The plaintiff paid a penny for entry to the defendant’s wharf from which he proposed to cross the
river by one of the defendants ferry boats. A boat had just gone and as there was not another one for twenty
minutes the plaintiff wished to leave the wharf and was directed to a turnstile which was its exit. There he
refused to pay another penny which was its exit as was stated on the notice board. And the defendant declined
to let him leave the wharf unless he did pay. The judicial committee held that this was not false imprisonment,
the court regarded charge for a penny for exit as reasonable.

7.4.2 Imprisonment and arrest.

A lawful sentence of imprisonment passed by a court provides a complete defense for an action for false
imprisonment and whatever maybe the position to judicial review. A charge in the conditions in which the
prisoner is kept gives rise to no action or false imprisonment. However in a case involving detention in a police

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cell’ it has been said that keeping a person in conditions threatening his health would render the detention
unlawful.

A person who arrests another in pursuance of a valid warrant cannot be sued. A policeman must have a warrant
to arrest. The burden of proof of justifying an arrest is upon the person effecting it and if he fails to do so he us
liable for false imprisonment.

The existence of personal grounds for suspicious gives the police officer discretion whether or not to arrest and
like other public officers invested with discretion. He must exercise it in good faith and without taking into
account irrelevant matters. Reasonable suspicion is a condition precedent of the rightfulness of an arrest but is
not conclusion. Where the police officer believes that the plaintiff would be more likely to confess for exercising
the discretion to arrest and not render the arrest unlawful.

The law requires that in ordinary circumstances a person arrested must be informed of the ground on which
he is arrested and the officer is not entitled to remain silent or to fabricate a hold charge. Where the arrest is by
a private individual, he does not have to inform the plaintiff of the facts of the arrest or of the ground it is
obvious.

Once a person is arrested he must be taken before a magistrate as soon as is reasonable possible (at most
before fourteen days are over).

Detention may be justified in the following circumstances.

i) Where detention without charge is necessary to secure or preserve evidence relating to an offense
for which the suspect is under arrest is a serious arrest or to obtain such evidence by questioning
him.

ii) An offense for which the suspect is under arrest is a serious arrestable offense

iii) The investigation is being conducted diligently and expeditiously.

A person who is unlawfully detained may use self help to escape including reasonable force though this is a
risky course since the power of arrest is likely to depend not only upon the commission of an offense but in the
alternative upon a reasonable suspicious thereof. Hence even an innocent man who forcibly resists arrest maybe
liable in Tort for battery if the arrestor had reasonable grounds for his suspicion. False imprisonment maybe
distinguished from abuse of legal process.

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 A defendant may be liable for false imprisonment although he did not personally detain the plaintiff so long
as he acted through an intermediary who exercised an independent discretion of his own.If A makes a charge
against B before a magistrate and the magistrate orders arrest of B then A has set in motion a judicial for false
imprisonment. However, he may be liable for abuse of legal procedure.

7.4.3 Defenses to Trespass of Assault

There are various defenses that are available in respect to the Tort of trespass to the Person

Consent: This was seen in the case of NJEREKETA V. DIRECTOR OF MEDICAL SERVICES 1950 The
appellant was a patient aged 24 had a malignant growth on his leg. It was found necessary to amputate the leg in
order to save the life of the plaintiff. The plaintiff first consented to this act but later withdrew. The doctor went
ahead with operation. After the patient healed, he filed a suit claiming damages, amounting to 30,000/-, The
judge was of the view that the patient suffered no loss or damage from the operation. On the contrary the
operation saved the life of the plaintiff. The judge also put into consideration the circumstances in which the
alleged trespass was committed. Thus where a person is performing professional duty, liability does not attach to
him.

Contributory negligence:

This is generally does not assume to be a defense to assault and battery or false imprisonment. Thus
where one contributes or does not an act that occasions trespass to himself, then he is partly liable for the
trespass. As where one acted in breach of s statutory duty, contributory negligence can be pleaded as a defense.

Self defense:

It is lawful for any person to use a reasonable defense for the protection of himself or any other person
against any unlawful use of protection use of force. The relationship of parties may be relevant to the
reasonableness of force used. Force is not reasonable if it is either:-

- Unnecessary is greater than is requisite for the purpose

- Disproportionate to the evil to be prevented.

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For example if you are attacked with a deadly weapon, you can defend yourself with a deadly weapon or with
other weapon which may protect your life.

Prevention of trespass or ejection of a trespasser:

It is lawful for any occupier of land or any other person with the authority of the occupier to use a
reasonable degree of force in order to prevent a trespasser from entering or to control his movements or to eject
him after entry. Reasonable force may be justified when used to control or eject a trespasser taking part in a
demonstration on private premises. However, it should be noted that this right is conferred only to occupier of
land (or his agent) because he is the only one entitled to complain of a trespass and to take legal proceedings in
respect thereof. A trespasser cannot be forcibly repelled or ejected until he has been requested to leave the
premises and reasonable opportunity of doing so peaceably has been afforded him. Generally, therefore, it the
trespasser in the course of eviction makes or threatens to make an assault upon the person evicting him, the
case becomes one of the defense of the person and thereafter any force may be used which is reasonable within
the rules as to self defense case becomes one of defense of the person and thereafter any force maybe used
within the rule as to self-defense even though it involves beating or physical harm. If the trespasser enters or
seeks to enter by means of forcible offense. The case falls within the rule that any force is justifiable which is
necessary to prevent the commission of such offense.

Defendant acting in support of the law.

Sometimes an assault or imprisonment maybe justified on the ground that the defendant was acting in
support of law. However, in such a case the onus of proving legal justification lies on the defendant.

Sometimes the prior of public interest or act of state is not enough. One who relies upon a statutory
power of entry for public or mental health purposes must prove that all the statutory conditions precedent have
been complied with or else an assault upon him may be justifiable.

Parental and other authority: A parent is not guilty of an assault if he physically interferes with his child
by way of reasonable restraint or chastisement, or for therapeutic reasons e.g. to take a blood test.

If the child is sent away to school, the schoolmaster is entitled to administer reasonable chastisement to
the child or to expel him for reasonable cause. It is not an assault for prison officers to take reasonable steps to
preserve the health of those in custody e.g. by forcibly feeding.

Inevitable accident: An inevitable accident has been defined as an event over which the defendant had no
control, and the effects of which could not have been avoided by exercise of the greatest care and skill

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 Inevitable accident provides a good excuse for a prima-facie trespass which is otherwise actionable.
This was illustrated in the case of STANELY V. POWELL. In this case, the defendant whilst firing at a
pheasant accidentally and without negligence short the plaintiff who was employed to carry cartilages
for a shooting party with a pellet which ricocheted from a tree at a considerable angle. The judge held
that this was an inevitable accident and thus the defendant was not liable.

Statutory authority: Where there is statutory authority or power granted to arrest a person, such an
arrest cannot be construed to be false imprisonment.

Various legislations have authorized medical examination of test which would otherwise constitute
serious trespass e.g. blood test and the breath test under the road safety Act 1967 of laws of
England. Relevant Kenyan Law”

7.5 SUMMARY

This lecture has examined various aspects of trespass to the person. It is important that we differentiate
between battery, assault and false imprisonment. As a tort, trespass to the person boarders on crime. It is
therefore important to remember the aspects of the tort that does not make it a crime. The most important
thing to remember is that as a tort it creates certain civil wrongs which an individual can bring personal claim
against the perpetrator of the wrong.

We were able to examine various defenses available and cases to illustrate various aspects of the trespass as a
tort. This should be properly understood

ACTIVITY

1. Differentiate between assault and battery as used in trespass to the person and discuss circumstances that
may lead to or may not be regarded as constituting the two forms of trespasses.

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2. What is the rationale behind the American shopkeeper’s privilege under the tort of false imprisonment? Try
and find out the provision under the Kenyan laws

3. Explain some of the defenses available in assault.

REFERENCES

1. Winfield and Jolowicz on tort

2. Ashing Hussein Commercial Law of Kenya

3. Salmond and Heuston Law of torts

4. Insurances of Liability – C.11 Tuition Book

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LECTURE 8: DEFAMATION

Outline of the Lecture

8.1 Introduction

8.2 Objectives

8.3 Definitions

8.4 Essentials of Defamation

8.5 Types of Defamation

8.6 Defamation of a Class

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8.1 Introduction

Defamation is the publication of a statement which reflects upon a person’s reputation and tends to lower him in
the estimation of right-thinking members of the society generally or tends to make them shun or avoid him.
Personal relationships are expected to promote respect and honour and not to foster hatred. Businesses are also
expected to guard against improper communication that will not harm the reputation of the public or those
people they deal with. Professionals are expected to keep in confidence information related to their clients.
Employers are also expected to keep information related to their employees confidential and vice versa.
Responsible reporting of any information is also expected for those that are in the media so as not injure the
reputation of those they are reporting about. The law therefore protects people against malicious reporting that
are not factual.

8.2 Objectives

At the end of the lecture the student should:

Utilize the information to guard himself/herself against possible legal action against him/her

To help the student in his/her career to advise employer on the repercussion of defamation

8.3 Definitions

It is sometimes defined simply as the publication of a statement which tend to bring a person into “hatred,
ridicule, contempt or fear”

However, this is not adequate for a statement may be defamatory even if it does not excite in reasonable people
such strong feeling as “ hatred, contempt and ridicule”, Indeed it is important that the possibility of being
shunned and avoided be considered for it may happen without exhibition of the said feelings.

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This was made clear by Slesser L.J. in the case of YOUSSOUPOFF V. METRO-GOLWYN-MAYER PICTURE LTD. Where
a cinematograph film falsely imputed that the plaintiff, a Russian Princess, was raped or seduced by the
notorious monk, Rasputin, when he stated his view that “It tended to make the plaintiff be shunned and avoided
and that without any moral discredit on her part”.

The feelings referred to in the definition should be exhibited by a reasonable man which therefore excludes
people who are so lax or cynical that they would think non the worse of a man whatever was imputed of him and
those who are censorious as to regard even trivial accusations as injurious to one’s reputation.

Lord Atkin in the case of SIM V. STRETCH held the opinion that, right thinking, is a value judgment and the type of
conduct will vary with time, hence what was defamation in Victorian times may not be defamation now.

In the case of BYRNE V. DEAN (1937) the plaintiffs, a club member had been compooned as a sneak as he had
divulged to the police that illegal gaming machines were used in the club. It was held that no right-thinking
member of the society could think of him thus for discharging his publics duty hence his action failed.

It must also be understood that publication in reference to defamation is making known certain information to
another person other than the defamed. It doesn’t have to be on a large scale.

A statement that disparages a man in his reputation in relation to his office, profession, trade, calling or business
may be defamatory although injurious statements which do not reflect on a person’s reputation are not
defamatory but may be actionable if made maliciously.

Note:

1. If the reputation defames only within a class of people, such as a club, then it is

not defamation unless any person generally reasonable would take the same view

2. A mere abuse and/or insult however unpleasant cannot be defamation so long as they are understood to
be abuses or insults. In PENFOLD V. WESTCOTE, the words, “you blackguard, rascal, sounded, Penfold,
you are a thief”, were held not to be defamation except the word.

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Defamation can therefore be in two forms which are, slander libel.

8.4 Essentials of Defamation

Whether defamation consists of libel or slander the following requirements are common to both, and must be
proved by the plaintiff:-

(a) The statements or publications must be made to a person other than the plaintiff i.e. they must refer to
plaintiff.

(b) The matter published must be calculated to make those who know the plaintiff think lowly or him.

(c) The matter published was defamatory according to attitudes of right thinking members of the public.

1. The statements or publication must be made to a person other than the plaintiff- if the plaintiff is
mentioned by name, there is no difficulty about it, and it is to be observed that there is no
requirement that the defendant should have intended to refer to the plaintiff. In Hulton V.
Jones . H & Co. the defendants were newspaper proprietors and published in their paper a
humorous account of a motor festival at Dieppe England in which imputation were cast on the
morals of one Artemus Jones, a church warden at Peckham. This person was intended to be, and
was believed by the writer of the article and the editor of the paper to be purely fictitious. Infact
there was a barrister named Artemus Jones who was not a church warden did not live at
Peckham and had taken no part in the Dieppe festival. He sued H. & Co. for libel, and friends of
his swore that they believed that the articles referred to him’. The verdict was entered in favour
of the plaintiff. The house of lords held that if reasonable people would think the language to be
defamation of the plaintiff it was immaterial that the defamations intended to defame him.

8.4.1 Nomination of Name

Material may be defamatory of the plaintiff even though it does not mention him by name and even if
it contains no “Key or pointer” indicating that it refers to him. In Morgan v. Oldham Press Ltd. “A newspaper
article alleged that a girl had been kidnapped by a dog-dogging gang. At the relevant time the girl had been
staying at the plaintiff’s flat and the plaintiff produced six witnesses who swore that they understood
from the article that he was connected with the gang”. The house Lord held that these facts constituted
sufficient material to leave the jury.

Where a publication does not sufficiently identify the plaintiff he may nevertheless rely for
identification on a subsequent publication by the defendant.

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 2. Words must be “maliciously” published. Publication is the communication of the words
to at least one person other than the person defamed. Communication to plaintiff himself is not enough
for defamation is an injury to one’s reputation, and reputation is what other people think of a man, and
not his own opinion of himself. It is normally said that the words must be published “maliciously”, but this
is purely formal. Though the word is usually inserted in the plaintiff statement of claim, no one takes any
notice of it at the trial except for the purpose of inflating damages where there has been spite or deliberateness.

8.4.2 How communication can become defamatory

Communications which may not be defamatory include:-

(i) Those between husband and wife

(ii) Assent to the publication

3. Words must be defamatory

A plaintiff is not entitled to bring a libel action on a letter which he has never seen and of the
contents of which he is unaware but which he merely suspects to have been written and to contain
words defamatory of him.

Abusive Words:

Spoken words which are prima facie slanderous are not actionable if it is clear that they were uttered
merely as general vituperation and were so understood by those who heard them. Slanderous words to
one person may not be slanderous to another.

8.5 Types of Defamation

8.5.1 Slander:

In slander the defamatory statement is made in spoken words or in some other transitory form,
whether visible or audible, such as gesture or inarticulate but significant sounds. It is not always easy to
determine whether in a particular case the proper cause of action is libel or slander. Libel is not merely an
actionable tort but also a criminal offence, whereas slander is a civil injury only. Libel is in all cases actionable
per se, but slander is, save in special cares, actionable only on proof of actual damage.

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 8.5.1.1 Actionable per se,

In the following cases, slander is actionable per se without proof of special damage, (1) an
imputation that the plaintiff has committed a criminal offense, (2) an imputation that the plaintiff
suffer from an existing contagious or infections disease, (3) an imputation of unchastity against a
woman, (4) an imputation against the plaintiff in the way of his business or office.

8.5.1.2 Criminal

An imputation of criminal offense to be actionable per se must amount to a direct charge and must
not be a mere suggestion or statement of suspicion. The crime charged need not be indictable, but it must
amount to an offense punishable with imprisonment in the first instance and not be an offense
punishable by fine merely even though there is power to imprison in default of payment of fine.

The basis of this rule if not that the words put the person defamed in jeopardy of a criminal
prosecution, but that other people were likely to shun and avoid a person guilty of the conduct alleged.
So it is actionable per se, to say of a man that he is a “convicted person” even though such an allegation does
not put him in jeopardy of a prosecution. It would follow that a slander imputing to a corporation the
commission of a criminal offense which in the case of a natural person would be punishable with imprisonment
is actionable per se,

8.5.1.3 Suffering from disease

An imputation that the plaintiff suffers an existing contagious or infections disease may cause other
persons to shun the plaintiff. Here again the basis of the rule is that imputation is likely to cause slander.
The diseases included are venereal disease, leprosy or plague and probably any contagious skin complaint
caused by personal uncleanliness perhaps today AIDS is included.

It is provided by the slander of Women, Act 1891, that words spoken and published which impute
unchastity or adultery to any women or girl shall not require special damage to render them actionable.

The plaintiff cannot recover more costs than damage unless the judge certifies at the end or after
the trial that there was reasonable ground for bringing the action.

8.5.4 Protection:

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 Any defamatory imputation upon a man in the way of his profession, business or office is
actionable per se, for example a charge of insolvency against a trader, of incompetence against a
surgeon, of ignorance, against a lawyer. This is so however, humble the profession or calling. A
defamatory charge, however humble the profession of a business in which he is no longer
engaged or in respect of an office which he no longer holds is not actionable per se.

Defamation Act 1952, section 2 in accordance with the recommendation of the porter committee
provides that in an action for slander in respect of words calculated to disparage the plaintiff in any
office, profession calling, trading or business held or carried on by him at the time of the publication, it shall no
be necessary to allege or prove special damages, whether or not the words are spoken of the plaintiff in the
way of his office, profession, calling trade or business. It was once thought not actionable per se to say of a
workman that he is not a member of a trade of a trade union but today a different view might be held.

In all other cases of slander, the plaintiff must plead and prove that he suffered special damage as
the natural and probable result of the publication of the defamatory matter. The special damage
required in actions for slander must be the loss of some definite material advantage, it must not consist
merely of the loss of reputation itself. Further when special damage is proved, damages can be recovered not
merely for it but for injury to the plaintiff’s reputation generally i.e. compensation is not limited to the
amount of actual loss proved although proof of some actual loss is an essential foundation for a clam for
general damages.

Special damage must not be remote but the law of causation in defamation does not differ from that in
other torts. Special damage in too remote if it is due not to the original slander but to a repetition for the
plaintiff of the slander his business has fallen away because such a result must have been due not to the
original slander but to the subsequent propagation of it by means of repetition. But it is otherwise if the
original slander is published to so many persons that the diminution of the plaintiff’s business may be
reasonably attributed to it rather than to subsequent repetition.

There are in many event two exceptions to the rule that damage caused by the repetition of a slander
is too remote, when the original statement is made to a person who is under a legal or moral duty to repeat it,
when the repetition has been authorized or intended or perhaps foreseen by the defendant.

The tort of slander can be explained by the case of Gray v. Jones K.B.(1939) I ALLER 798.

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 The plaintiff brought an action for slander, alleging that the defendant had said of him, “you are a
convicted person. I will not have you here, you have a conviction”. The defendant submitted that the words
were not capable of being actionable without proof of special judgment was given for the plaintiff.

Judge Atkinson held:-

“The argument for the defendant is that, the true view is that the reason why words imputing a crime
are actionable is that the plaintiff is put in jeopardy of a criminal prosecution and therefore if the words
merely imply that the plaintiff has been guilty of a criminal offense and her been convicted and it is a
thing of the past, then it is not actionable without proof of special damage, because the plaintiff is not put
in jeopardy. That raises the question as plaintiff may bring an action for such defamation without proof of
special damage?. It is because the misconduct alleged is of so serious a character that the law visit it with
punishment and is therefore so likely to cause other people to shun the person defamed and to exclude him
from society, that damage is presumed? Or is the fact that he is put in jeopardy? In my opinion, the former
view is the sound one.

8.5.2 Libel

This is defined as defamation in permanent form. For example writing, or a caricature. In Britain, it is
provided by section of the Defamation Act 1952 that radio and television transmission is libel as opposed to
slander. It was held that in Yousoupoff V. MGM pictures Ltd.(1931) where the plaintiff was depicted to
have been raped by Rasputin, that a film is permanent form. The better view is that a gramophone record
or cassette is also publication permanent form.

How is it actionable?

Libel is actionable “per se” that is without proof of damage. It is assumed that loss will flow from
defamation in permanent form. Libel may sometimes be a crime in Kenya. Libel consists of publishing to a
“third party” without lawful excuse an untrue and defamatory statement. Normally it is in writing or print.
Pictures, sculptures or cartoons can also be libellous.

The following case illustrates this point: MONSON V. TUSSUDS LTD. COURT OF APPEAL 1891-4 ALL ER
REP 1051

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 The plaintiff had been tried in Scotland upon a charge of having murdered Hambrough by
shooting him. The defense was that Hambrough was killed by the accidental discharge of his own
gun. The jury returned a verdict of “not proven” shortly after trial, the defendant s placed in their exhibition
a portrait model of the plaintiff, bearing his name, with a gun close by described as “his gun”. The model was
displayed in a room containing figures of Napoleon I. a convict murderer, a suicide and another person charged
in connection with the alleged Ardlamout Murder. The plaintiff applied for an interim injunction
restraining the exhibition of his effigy until the trial of an action for libel UPES L.J. …………….. Libels are
generally in writing or printing, but this is not necessary; the defamatory matter may be convened in some
other permanent form. For instance, a statutes a caricature, an effigy, chalk marks on wall, signs, or picture
may constitute libel. The plaintiff’s case therefore is libel……………….

Another case illustrating libellous acts is: YOUSSOUPOFF V. METRO-GOLDWYN-MAYER PICTURE LTD.
Court of Appeal (1934) 50 TLR 581

The plaintiff claimed damages for an alleged libel which she said was contained in a sound film entitled
“Rasputin, the mad monk” alleging that the defendants had published in the film pictures and words
which were understood to mean that she, therein called “Princes Natasha”, HAD BEEN seduced by Rasputin. The
jury returned a verdict in favour of the plaintiff and awarded her ₤25,000 damages. The defendants
unsuccessfully appealed to the court of Appeal.

SLENDER L.J. This action is one of libel and raises at the outset an interesting and difficult
problem which. I believe, to be a movel problem whether the product of the combined photographic
and talking instrument which produces this modern film does. If it throws upon the screen and impresses
upon the ear defamatory matter, produce which can be complained as a libel or as slander. In my view this action
was framed in libel, the photographic part of the material is a permanent matter to be seen by the eye
and is the proper subject for an action of libel if defamatory.

In the United Kingdom, the Defamation Act 1952, provides that words shall be construed as
including a reference to pictures, visual images, gestures and other methods of signifying
meaning. The Broadcasting Act 1990 defines publishing either in words or pictures to be includes in a
programme shall be treated as publication in permanent form- Libel. The theatres Act 1968 provides
amendment of law of defamation. This caters for both slander and libel (including criminal libel so long as it
relates to publication of words in the cause of a performance of play shall be treated as publication in
permanent form. It also says that “words” includes, pictures, visual images, gestures and other methods of
signifying meaning.

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 8.6 Defamation of Class:

The question where an individual can sue in respect of words which are directed against a group,
or body, or class of person generally is considered in Kigozi v. Hon, A. Mayanja Civil suit No. 145
(1965)

The defendant who was an M.P. in Uganda government read a speech alleging that some
members of Board of Directors of a Coffee Board of Uganda were taking out of the country to their
personal accounts abroad. In his statement no individual member of the board was named and therefore
the plaintiff who was a member of the Board brought a suit in his own name for defamation.

The judge held that the plaintiff was entitled to succeed for he could show that defamation related
to him being one of the eight members of the board.

a) The crucial question is whether the words were published “of the plaintiff” in the sense that he
can be said to be personally pointed at rather than the application of any arbitrary general rules.

b) Normally where the defamatory statements are directed to a class the plaintiff is entitled to say that
the words were written in reference spoken of him.

c) Words which appear to apply to a class may be actionable if there is something in the words, or
circumstances under which they were published which indicate a particular plaintiff or plaintiffs.

d) Again if the reference is to a limited class or group, e.g. trustees, members of a firm, tenants of a
particular building so that the words are said to refer to each member, all may sue.

8.7 Defamation Act CAP 36

East Africa, Kenya in particular, the courts have adopted case law “state decisis” and the law related
to defamation (Libel) has also importance here.

The following East Africa cases illustrate defamation in permanent form:-

ODONKORO V. ASTLE (1970) E.A. 374

The plaintiff was an assistant superintendent of police and he claimed that the defendant who was a
Television operations manager falsely and maliciously said on the plaintiff to one Mr. Otim Oryem that he
was one of a group of persons meeting for the purpose of working out a plan to cause chaos and to over-throw
the Government of Uganda. The verdict was passed in favour of the plaintiff. The judge said that a person

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publishing a libel or slander which speaks words defamatory of another to or in presence of a third
person, and if that particular statement is defamatory then that person can bring action against that
defendant.

LALOBO V. LAKIDU

A reporter of a newspaper known as “The people” interviewed the defendant and the edited form
that newspaper. The plaintiff complained that the defendant falsely and maliciously posed to the
public false statement concerning him in the way of his occupation, employment and office and his
conduct therewith.

The defendants’ council argued that the material was not published by the defendants but by the
reporter and printers of the newspaper, they also argued out that the reporter was an accurate record
of the interview and therefore the defendant did not libel the plaintiff in cases of slander defamatory
statement is weighed in spoken words or in some transmitory form and where as in Libel it is made in a
permanent form.

8.8 Innuendo

Is an apparent innocent statement but when considered in light of the current situation, its
defamatory, a statement may not be defamatory on the face of it but will be if coupled with certain
extrinsic (not contained or included within) evidence. Thus an otherwise innocent statement may support
an innuendo which is defamatory.

The fact that the plaintiff relies upon “innuendo” must be specifically pleaded. The plaintiff must give the
meaning of the innuendo, and he should bring the grounds which make that innuendo defamatory. As with
ordinary statements it is the fact of defamation which is the test and the defendant will be liable even if
he had no knowledge of the extrinsic facts upon which the innuendo rests.

Supportive Cases:

1. CASSIDY V. DAILY MIRROR NEWSPAPER LTD.

Court of Appeal, (1920) All ER Rep. 117. The plaintiff, who also called herself Mrs. Corrigan was
married to a gentleman who described himself equally as either Cassidy or Corrigan. Mr. Cassidy occasionally
stayed with his wife or at her flat and became known to her acquaintances. However, Mr. Cassidy was
notorious for his love of both horses and women, and at one race meeting was photographed in the
company of a young lady. He announced to the photographer printed the photographs and underneath set
out of the announcement of the engagement. The acquaintances of Mrs. Corrigan (Cassidy) , upon seeing
the photograph naturally thought that she was not married to Mr. Cassidy and accordingly she had held

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that the “extrinsic” information was sufficient to attach an innuendo to an otherwise seemingly innocent
photograph. The defendants were not able to plead innuendo as their defense.

In the above case, two things came out clearly:-

i. The words published were capable of meaning “Corrigan is a single man” and hence people who
know of Corrigan were therefore aware-innuendo.

ii. Liability for libel does not depend of the intention of the defamer but on the fact of defamation.

2. TOLLEY V FRY AND SONS LTD. (House of LORD (1931) All ER Rep 131).

It was imputed in a cartoon forming part of an advertisement that a famous amateur golfer
had by consenting the use of his name compromised his amateur status. He had
however not consented and he knew nothing of the advertisement until it appeared in the
newspaper. The court held that they were liable by innuendo

8.9 Defenses

The word defense is defined by oxford dictionary as an argument used to answer an accusation
or support an idea. A plaintiff who fails to prove the necessary ingredients of the
particular tort on which he relies will, of course, fail in his action. Even if he does prove these
ingredients, however, he may still fail if the defendant shows that he is entitled to rely
upon some specific defense. There is various defenses which apply in the tort of
defamation.

1. Truth

In order to succeed in an action for defamation, the statement must be true for truth is a complete
defense to an action of libel or slander

2. Defense of justification

It requires the defendant to prove that the information publishing the same. It is upon the defendant to plead
justification but not for the plaintiff to prove the falsity of the statement for the law presumes that for the favour
of the plaintiff. Where the statement falls short of whole truth, but it is substantially true, it is still on acceptable
defense. For example, if A writes that B was imprisoned for 5years for stealing, when in reality he was
imprisoned for 4 years for the same, the statement is substantially true, but if the statement was grossly
exaggerated, the plea of justification would not provide a good defense.

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 The reason for allowing a plea of justification is that, even if defamation injuries a man’s reputation and
leads people to think low of him, when the statement is true about him, his reputation has been reduced to it’s
proper level.

This can well be illustrated in the case of Alexander v. Northern Eastern ey. Co. (1965), the plaintiff
brought an action for libel based on the following notice which was published by the defendant; NE Railway
Company, Caution, J. Alexander was charged before the magistrate at Dollington for riding in a train from Leeds,
for which his ticket was not available, and refusing to pay the proper fare. He was convicted in the penalty of
₤91s l0d including costs, or three weeks imprisonment. In reality the plaintiff had been sentenced to fourteen
days, imprisonment in default of payment of the fine and costs. The court of Queen’s Bench held that the
defense of justification succeeded.

3. A fair comment

Comments on matters of public interest is a good defense in tort of defamation. A person is entitled to express
his opinion on matters of public interest. But for the defense to succeed, it must be proved that the expression
was one of honest opinion and not an assertion of fact, and it was fair.

The defense can only succeed if the comment is not malicious, meaning that it is not made on the basis
of prejudicing the plaintiff reputation.

It must be made in good faith and the defendant should believe what he said was truth and didn’t
maliciously distort the information. An attacked of an individual moral character is not a fair comment.

Some of the matters which may become the topics of fair comment are: affairs of state and acts of
officials, affair of public institutions and local authorities, books, pictures, words of art, theatre, concerts and
other public entertainment. The difficulty in this defense is to determine what is fair. The judgment of Diplock J.
in Silkin Beaverbrook Newspapers Ltd. provides a useful guide for determining a fair comment.

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 In the case of London Artist S. Ltd. V Lither (1969)2 ALLER 193, four top performance terminated their
contracts, through their agents the plaintiffs. The defendant published that the plaintiffs all of them connected
with the entertainments industry, had taken part in a plot to end a successful play. In action for libel, the
defendant pleaded justification but the defense was withdrawn later. It was held that the statement was a
matter of public interest.

4. Denial

The defendant can also deny the information, meaning that he didn’t cause the alleged Defamation. In the case
of sale of libellous material, whereby if a libel is contained in a newspaper or a magazine, the sale of every copy
is deemed a prima facie publication, the Defendant being a sales man can offer the following defenses: that he
did not know that the material contained libel, his ignorance was not due to any negligence on his part and that
he did not know, and had no reason for supposing that the new proper contained libelous material.

In the case of Emmens v. Bottle, 1885, a newspaper-vendor was held not liable for libel in a newspaper
sold by him in the ordinary course of his business, for he had neither knowledge of the libel nor had any reason
to suppose that the newspaper contained defamatory material.

5. Privilege defense:

Defense is allowed for statements made on what are described as privileged occasions. This is because the
court found that there some occasions on which freedom of communication without fear of an action for
defamation is more important that the protection of a person’s reputation. Privileged occasion may be absolute
privilege or qualified privilege.

Absolute privilege is whereby the complete freedom of communication without fear is regarded as such
paramount importance that actions for defamation cannot be entertainment at all. A person defamed in such an
occasion is left without legal redress however outrageous the untrue statement was.

Qualified privileges, on the other hand, protects the defendant only if he acted honestly and without malice. If
the plaintiff is able to prove “express malice” the privilege is displayed and he may recover damages. In case of
absolute privilege the defamation Act (cap. 36), section 9. of Kenya provides that, any action for libel in respect
of the publication of parliamentary report shall be a defense for the defendant to produce to the court a

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certificate under the hand of the speaker of the National Assembly that such a report was published by the order
or under the authority of the Assembly concerned, together with an affidavit verifying such certificate. This
section effectively protects freedom of speech in the National Assembly. Also similar protection is given by
sections 10 and 11 of the defamation Act (cap. 36), to any person who publishes copies of or extracts from
parliamentary reports. Statements made in judicial proceedings by a judge, magistrate, counsel, parties and
witness to the proceedings, related is the matter in hand, are also absolutely privileged. This enables the persons
concerned with judicial proceedings to speak freely. The protection given to the judges and magistrate is
outlined under section 6 of the judicature Act (cap. 8). A statement made by spouse to the other is also
absolutely privileged but not those made by spouses to a third party.

A fair and accurate report in any newspaper of judicial proceedings is absolutely privileged, but this
protection does not extend to the publication of any blasphemous, seditious or indecent matters
(Defamation Act (cap. 36), section 6)

In the case of Church of Scientology of California v Johnson Smith (1972). The plaintiff alleged that the
defendant, a member of parliament had made defamatory remarks concerning them order to defeat the
pleas alleged malice and established what this by soughing to adduce evidence which included what
the defendant was not held liable because of the parliamentary privilege.

Qualified privilege on the other side is limited in occasion whereby they are made in a manner that they have a
moral, social or legal duty in them. There must be a reciprocal duty to receive them for example where an
employer gives a testimonial in respect of an employee.

The case of Farmer v. Uganda Argus Ltd. (1964) E.A. 565, whereby the Attorney General of Uganda, in
exercise of statutory powers, ordered an article of public prosecution to discontinue certain criminal
proceedings. Shortly after, the Uganda Argus published an article headed: “Government staff “con.-man
trail……..” the plaintiffs alleged libel and the defendant pleaded qualified privilege. The plea of privilege
failed. This was because neither the reporter of the published article nor the Newspaper had any privilege or
privy to the proceedings. Also there was no corresponding interest or duty in the public to whom it was
published to receive it. Therefore the court awarded damages.

Another relevant case is that one for Walt V. Longsdon who was both members of the same firm. A
third party who was a member of the same firm made written defamatory statement about the
plaintiff and the wife of the plaintiff. The court ruled that to the chairman showed the letter to the firm’s
chairman of the firm was qualified privileged because the reciprocal right of interest to receive and to
give present.

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 But in the case of the wife the court ruled out that the publication was not privileged because even if
he wife had the interest to receive the defendant didn’t owe her any duty.

7.10 SUMMARY

While it is true that the law of defamation has gone a long way in protecting the reputation of each
individual, it is also true that it is still inadequate. Even though a plaintiff is paid damages it does very little
in repairing the damages already done, unless it is adequately published.

Indeed, the mere retraction fully and prominently of defamatory statement publicly can even do
more in repair of the damage than damages.

The defenses available in defamation, although necessary to preserve freedom of speech may have
the effect that a wholly unfounded and exceedingly damaging allegations may still result in a verdict for the
defendant which on its face reveals nothing about the jury’s opinion as to the truth.

It is therefore generally agreeable that the law of defamation needs some widespread “renovation
and refurbishment” for the structure will be with us for the foreseeable future.

ACTIVITY

1. Define defamation and give the different versions of defamation

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 2. Explain the essentials of defamation

3. Explain the effect of class defamation

4. Discuss the various defenses available in an action of defamation

REFERENCES

1. Ashiq Hussein: General Principles and Commercial Law of Kenya

2. http:/www.google.com.

3. Winfield and Jolowicz on tort

4. Salmond and Heuston Law of torts

5. Insurances of Liability – C.11 Tuition Book

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LECTURE 8: DEFENSES

Lecture Outline

8.1 Introduction

8.2 Objectives

8.3 Effects of Limitation of Action Laws

8.4 Defenses to Nuisance

8.5 Defenses to Defamation

8.6 Defenses to Negligence

8.7 Defenses to Trespass

8.1 Introduction

A successful defense absolves the defendant from full or partial liability for damages. Apart from proof that there
was no breach of duty, they are principal defenses to tortuous liability.

Defenses in tortuous liability are many and available to a defendant in all aspects of liability action. In some
cases, a statute of limitations may prevent or render a particular defense useless. Almost all countries provide a
limit on the time in which a case may be brought for personal injuries. The time limits can be as short as one
year, but are most often two to three years or other longer period.

8.2 Objectives

i. By the end of the lecture the student should be able to utilize and appreciate the various defenses
available in tort.

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 ii. As a student of management and especially insurance he/she should be able to advice clients, employer,
employees on available defenses available when faced with liability claims

8.3 Effects of Limitation of Action Laws

Generally, the time for bringing a claim begins to run from the time of injury. A number of countries, however,
apply a “discover rule” providing that the statute of limitations runs, not necessarily from the time of injury, but
from the time when the plaintiff knows of his claim. In countries with a discovery rule, it is more difficult to
determine when the statute of limitations applies in a particular case.

In the case of an express warranty, the terms of the warranty control and the product-related defenses available
in strict liability or negligence are not available. Even product misuse or contributory negligence is not a defense
if it is warranted that the product can be misused in a particular way.

With respect to an implied warranty, the situation is somewhat more complicated. In the case of an injured
consumer, many courts treat a warranty action as one for strict liability and permits the same defense as are
discussed below, such as assumption of risk.

In an attempt to escape liability, a defendant may argue that legislation (such as zoning laws or licenses)
authorizes a particular activity. Legislative authority will not excuse a defendant from liability if the conduct is
unreasonable.

A defendant may not escape liability by arguing that others are also contributing to the harm, damages will be
apportioned according to a defendant’s share of the blame. Moreover, a defendant is able even where his or her
actions without the actions of others would have constituted a nuisance.

Defendants sometimes argue that a plaintiff “came to a nuisance” by moving onto land next to an already
operating source of interference. A new owner is entitled to the reasonable use and enjoyment of his or her land
the same as anyone else, but the argument may be considered in determining the reasonableness of the
defendant’s conduct. It may also have an impact in determining damages the purchase price may have reflected
the existence of the nuisance.

8.4 Defenses to Nuisance

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8.4.1 Prescription

The defendant must show that he or she has been committing the nuisance for 20years, and that the claimant
did not object in that time. For prescription to succeed, the defendant needs to show that he has acquired a
prescriptive right against the defendant. If the defendant moves premises to the area of the nuisance, the
defendant cannot rely on a prior period of non-complaint. There is an deemed to have accepted the situation.
Public nuisance cannot be justified by this defense.

8.4.2 Volenti Non Fit Injuruia

This is Latin for “to the willing, no injury is done”. It operates when the claimant either expressly or implicitly
consents to the risk of loss or damage. For example, if a spectator at an ice hockey match is injured when a
player strikes the puck in the ordinary course of play, causing it to fly out of the rink and hit him or her, this is a
foreseeable even and spectators are assumed to accept that risk of injury when buying a ticket. A slightly more
limited defense may arise where the defendant has been given a warning, whether expressly to the claimant or
by a public notice, sign or otherwise, that there is a danger of injury. The extent to which defendants can rely on
notices to exclude or limit liability varies from country to country. This is an issue of police as to whether
(prospective) defendants should not only warn of a known danger, but also take active steps to fense the site and
take other reasonable precautions to prevent the known danger from befalling those foreseen to be at
risk.

8.4.3 Statutory Authority-

There is no nuisance if the defendant’s action is specifically authorized by statute. For example, people living
near the Jomo Kenyatta International Airport can not sue the Airport Authority for nuisance in respect of
excessive noise of the aircrafts.

8.4.4 Act of God: This might include, for example, water overflowing from the defendant’s well in an usually
heavy rainstorm.

8.4.5 Reasonableness

The defendants may prove that the act complained of a nuisance is the result of lawful use of his own land e.g.
digging shafts of his own land.

8.4.6 Triviality

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The defendant may prove that the act complained of as nuisance is grossly insignificant and temporary in its
operation e.g. smoke or smell arising from A’s house in one afternoon.

8.4.7 Consent

Where a person expressly or implicitly allows the defendant to make unreasonable use of his property, he can
not latter on complain of nuisance, unless he withdraws his consent and informs the defendant.

8.5 Defenses to Defamation.

8.5.1 Truth or justification

An essential element of defamation by libel/slander is that the statement published was false. Consequently, if
the statement was, in fact true, there can be no defamation, regardless of defendant’s motivation. Truth is an
absolute defense to a claim of libel. Where statement falls short of whole truth, but if it is substantially true,
it is an acceptable defense. Where a person embarks upon this defense, he must be must be sure that he can
prove it, otherwise he will be required to pay substantial damages.

8.5.2 Privilege

The of the word “privilege” is that a person stands in such relation to the fact of the case that he is justified in
saying or writing what would be slanderous or libelous in anyone else.

 Absolute privilege

Every communication irrespective of its being false or malicious is

protected Occasion absolutely privileged. Include:

1. Statements made in parliamentary by a member.

2. Statements made in court arising out of judicial proceedings.

3. Statements made in professional communication between advocate and client

4. Communication between husband and wife.

 Qualified privilege.

Where, a person who makes or communicates defamatory statement is doing so in the discharge of a duty, social
or moral, but if only made to a person who has corresponding interest or duty to receive it. Examples are:

1. Where the defendant makes a statement in defending his reputation to a person who has an interest to hear
it.

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2. Communications made to persons in public positions for public good.

3. Fair and impartial reports of parliamentary proceedings, judicial proceedings at lawfully convened meetings of
certain public bodies discussing matters of public concern published in a paper.

 Conditional privilege.

A conditional privilege is a defense to an action for defamation, unless the defendant abused the
privilege when publishing the statement.

A privilege is abused when a defendant publishes a defamatory statement about plaintiff,

without a good faith belief in the truth of the statement; or without reasonable grounds believing
the statement true; or motivated by hatred or ill towards plaintiff. Plaintiff has the burden of
proving by a predonderance of the evidence all of the necessary to establish that the privilege
was abused by defendant.

8.5.3 Apology

The defendant ACT (1970) Kenya provides that, the defendant (a publisher) in an action contained in a
newspaper or other periodical may make an offer of amends in the following circumstances:-

(1) That the publication was without malice or gross negligence.

(2) That the words were published innocently, and the publisher did not know of the circumstances by
virtue of which they might be understood to be defamatory of the plaintiff.

(3) That he did intend to publish them of the plaintiff, and did not know of circumstances which may
lead to refer to him.

(4) That as soon as the publisher discovered libel, he offered a suitable apology to the plaintiff and a
suitable correction. If the offer is accepted by the plaintiff no further action in tort can be taken. but
in case of rejection, the defendant must prove that the words were published innocently and the
offer to amend was made as soon as their defamatory nature was discovered.

8.6 Defenses in Negligence.

8.6.1 Contributory Negligence

To use contributory negligence, the defendant would have to argue that the plaintiff breached the standard of
care which he owed himself or herself, that this breach was a cause in fact of the harm that occurred, and that
the breach was not too remote. Essentially, a contributory negligence argument involves the defendant applying
the negligence analysis to the plaintiff’s actions. Although a successful contributory negligence argument used by

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the plaintiff’s to constitute a complete answer and defense to liability, now it would only lead to the amount of
damage liability being apportioned between the plaintiff and defendant.

“In any action for damages that is founded upon the fault or negligence of the defendant fault or negligence is
found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in
proportion to the degree of fault or negligence found against the parties respectively”.

A more difficult defense involves demonstrating that the plaintiff knew the risks and accepted them. When a
health and safety professional relies upon voluntary assumption of risk as a defense one is essentially saying that
because the plaintiff was aware of the risks of the defendant’s negligent act and agreed to it anyway, he or she
should be denied recovery if harm actually occurs.

The acceptance of risk may be express or may arise by necessary implication from the conduct of the parties, but
it will arise, in cases such as the present, only where there can truly be said to be an understanding on the part
of both parties that the defendant assumed no responsibility to take due care for the safety of the plaintiff and
that the plaintiff did not expect him to. Common sense dictates that only rarely will a plaintiff genuinely consent
to accept the risk of the defendant’s negligence.

In a decided case of Fireman’s Fund American Insurance Co. v Coleman (US), six employees who were severely
burned when highly flammable solvent-based glue ignited brought actions against four co-employees. The
supreme court of Alabama held that the supervisory personnel who were responsible for safety inspections and
OSHA compliance could be found liable.

In Muslim v. Summers, it was held that the duty by the employer to provide an employee with a reasonably safe
place to work could be delegated to or assumed by the plant superintendent and, if such delegation or
assumption occurred, duty may also have been breached by superintendent.

However, in Rounds v. Standex Intern, it was held that maintenance of a safe workplace, including suitable
machinery and tools, is a duty of the employer, and such duty is “nondelegable” Therefore, the employer could
not escape liability for breach either by purporting to delegate the duty itself to another or by merely delegating
performance of the duty.

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Frequently, more than one person has acted negligently to create an injury. Under the common-law rule of
contributory negligence, a plaintiff whose own negligence was a contributing cause of her injury was barred from
recovering from a negligent defendant. For example, a driver negligently enters an intersection in the path of an
oncoming car, resulting in a collision. The other driver was driving at an excessive speed and might have a voided
the collision if she had been driving more slowly. Thus, both drivers negligence contributed to the accident.
Under the doctrine of contributory negligence neither driver would be able to recover from the other, due to her
own negligence in causing the accident.

The doctrine of contributory negligence seeks to keep a plaintiff from recovering from the defendant where the
plaintiff is also at fault. However, this doctrine often leads to unfair results. For example, even if a defendant’s
negligence is the overwhelming cause of the plaintiff’s injury, even slight negligence on the part of the plaintiff
completely bars his recovery. However, it should be recognized that the negligence of many defendants such as
corporations and manufacturers, the contributory negligence, corresponding risk of injury to workers which can
completely eliminate the liability for their negligence, reduce their incentive to act safely. As a result, courts and
statues have considerably weakened the doctrine of contributory negligence.

For instance, in the United States this is either a mitigatory defense or it may be an absolute defense. When used
as a mitigatory defense, it is often known as comparative negligence. Under comparative negligence a
plaintiff/claimant’s award is reduced by the percentage of contribution between two vehicles, the court must
only make a finding that both drivers were negligent, but it must also apportion the contribution made by each
driver as a percentage, e.g. that the blame between the drivers is 20% attributable to the plaintiff/claimant: 80%
to the defendant. The court will then quantify the damages for the actual loss or damage sustained, and then
reduces the amount paid to the plaintiff/claimant by 20%. If the defendant proves both that the
plaintiff/claimant also acted negligently and that this negligence contributed to the loss or damages suffered this
is a complete defense.

This doctrine has been widely criticized as being too draconian, in that a plaintiff whose fault was comparatively
minor might recover nothing from a more egregiously irresponsible defendant. In all but four US States, it has
been replaced judicially or legislatively by the doctrine of comparative negligence. Comparative negligence has
also been criticized, since it would allow a plaintiff who is recklessly 95% negligent to recover 5% of the damages
from the defendant, and often more than when a jury is feeling sympathetic. Economists have further criticized
comparative negligence, since under the leaned Hand Test it will not yield optimal precaution levels.

8.6.2 Illegality: “E turpi causa non oritur action”

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Ex turpi causa non oritur action is the illegality defense, the Latin for “no right of action arises from a despicable
cause”. If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish
or reduce the defendant’s liability. Thus, is a burglar is badly challenged by the property owner and sustains
injury when jumping from a second story window to escape apprehension, there is no cause of action against the
property owner even though that injury would not have been sustained “but for” the property owner’s
intervention; or if a trespasser tries to escape and when asked to stop he proceeds to run and rams into a closing
door and is badly injured he becomes responsible for his own injuries..

8.6.3 Inevitable Accident

Aside from failing to meet the elements of negligence, not all accidents result in compensable injuries. If an
accident cannot be avoided even if reasonable care is taken, then negligence cannot be proven – for instance, if a
driver has an unexpected seizure and causes an accident, negligence cannot be proven unless the driver had
reason to expect the seizure.

8.6.4 Act of God (vis major)

This was defined by James, L.J. in Nugent v Smith (1876) as an event which is due to:

“Natural causes directly and exclusively without human intervention and that could not have been prevented by
any amount of foresight and pains and care reasonably have been expected”.

This definition thus included phenomena of nature such as storms, earthquakes, floods and others over which
man has no control

8.6.5 Volenti non fit injuria

The term means “to him who is willing there can be no injury, or no injustice is done to the consenting person”.
Assumption of risk is a proper defense i.e. a victim sustained injuries as a result of a relationship or transaction
they entered with full knowledge and acceptance of the risks commonly associated with such undertakings.

Under the assumption of risk defense, a defendant can avoid liability for his negligence by establishing that the
plaintiff voluntarily consented to encounter a known danger created by the defendant’s negligence. Assumption
of risk may be express or implied. Under express assumption of risk, persons agree in advance that one person
consents to assume the risk of the other’s negligence. For example, a skier who purchases a lift ticket at a ski
resort usually expressly agrees to assume the risk of any injury that might occur while skiing. Thus, even if the ski

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negligently fails to mark a hazard on a trial resulting in an injury to a skier, the ski resort may invoke the
assumption of risk defense in the skier’s subsequent lawsuit.

Assumption of risk may also be implied from a plaintiff’s conduct. For example, the defendant gives the plaintiff,
a painter, a scaffold with a badly frayed rope. The plaintiff fully aware of the rope’s condition, proceeds to use the
scaffold and is injured. The defendant can raise the implied assumption of risk defense. The defense is similar to
the contributory negligence defense, in the above example. The defendant might also argue that the plaintiff was
contributorily negligent for using the scaffold when he knew the rope was frayed.

The implied assumption of risk defense has caused a great deal of confusion in the courts because of its
similarity to contributory negligence, and with the rise of comparative fault, the defenses has diminished in
importance and is viable today only in a minority of jurisdictions.

Even if a plaintiff has established that the defendant owed a duty to the plaintiff, breached that duty and
proximately caused the defendant’s injury, the defendant can still raise defenses that reduce or eliminate his
liability. These defenses include contributory negligence, comparative negligence, and assumption of risk.

8.6.5 Comparative Negligence

Most countries, either by court decisions or statute, have now adopted some form of comparative
negligence in place of pure, contributory negligence. Under comparative negligence, or comparative fault as it is
sometimes known, a plaintiff’s negligence is not a complete bar to his/her recovery. Instead the plaintiffs’
damages are reduced by whatever percentage his/her own fault contributed to the injury. This requires the
jury to determine, by percentage, the fault of the plaintiff and defendant in causing the plaintiff’s injury. If for
example the jury determines that the plaintiff was 25 percent responsible for the accident and that the
defendant was 75% responsible. The plaintiff will then be allowed to recover 75% of her damages, or
shs.75,000/-.

Most countries have adopted the “50 percent rule” of comparative negligence. Under this rule the plaintiff
cannot recover any damages if her negligence was as great as or greater than, the negligence of the defendant.
This rule partially retains the doctrine of contributory negligence, reflecting the view that a plaintiff who is
largely responsible for her own injury is unworthy of compensation. A minority of states have adopted “pure
comparative fault” Under that rule even a plaintiff who is 80% at fault in causing her injury may still recover 20%
of damages, reflecting the defendant’s percentage of fault.

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8.6.6 Emergency

The defendant may plead that he acted in an emergency and that his action was reasonable under the
circumstances. For example: When a speeding ambulance damages a hawker’s wares along the street while
taking seriously injured persons to hospital in order to save their lives. The damage was not intended but the
ambulance driver had to find the shortest route to the hospital.

8.6.7 Necessity

This arises where damage is done in order to prevent a greater evil. Both the defendant and plaintiff by the
action and no one is to be blamed.

8.6.8 Remoteness of Damage

Where the damages suffered are too remote, they will not be recoverable. In this defense forseeability is a test
for both duty and remoteness. If the damage is not forseen then duty does not exist.

8.7 Defenses to Trespass

The standard defenses to trespass to the person, namely, necessity, consent, statutory authority, prescription
and involuntary.

8.7.1 Necessity

Entry upon the land of another is justifiable on the ground of necessity e.g. Putting out fire for public safety or in
defense of the country or a physician may touch a person without that persons consent in order to render
medical aid to him or her in an emergency.

8.7.2 Consent

A person who has, either expressly or impliedly consented to participation in a contact sport cannot claim in
battery against other participants for a contact permitted by the rules of that sport.

8.7.3 Prescription

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A defendant may plead prescription, as by showing a right of common grazing or right of way over the plaintiff’s
land.

8.7.4 Statutory Authority

Entry under a legal process is justified, but the misuse of such authority is not. For example water meter readers
or electricity meter readers must confine themselves to the meter boxes and not beyond that. Police who are
investigating a crime and posses a warrant from a judge have the authority to enter premises or even arrest an
individual suspected to have committed a certain offence.

8.7.5 Involuntary.

The act of trespass was involuntary and without any negligence e.g. where a horse runs away with the defendant
riding it and jumps over onto the neighbour’s land.

SUMMARY

The defenses which have been summarized in this chapter can also be found under each specific areas of tort
discussed in other lectures. We have looked at various aspects of tort and discussed the most common defenses
available to a defendant. As we have seen negligence is the most common form of tort. The student should
familiarize himself/herself with the defenses in negligence, nuisance, trespass and defamation. The student
should remember that these defences can only be useful if cases in tort are brought within a legally stipulated
period.

ACTIVITY

1. Discuss whether an Act of God defense can be used in a case of strict liability

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2. Explain what we mean by comparative negligence

3. Discuss the limitations of statutory authority defense as a Kenyan experience

4. Should people who participate in games like boxing and tae-kwondo who get injured by their opponents
deliberately be subjected to the defense of volenti non fit injuria?

5. A patient who is seriously sick and cannot communicate and is operated on and loses one of his limbs, can he
use lack of consent to claim from the doctor?

6. Discuss the merits or demerits of prescription in today Kenya

7. Explain what you understand by “e turpi causa non oritur action”

REFERENCES

1. Ashiq Hussein: General Principles and Commercial Law of Kenya

2. http:/www.google.com.

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LECTURE 9: MASTER AND SERVANT RELATIONSHIP (VICARIOUS LIABILITY)

Lecture Outline

9.1 Introduction

9.2 Objectives

9.3 Historical Development

9.4 Who is a Master?

9.5 Who is a Servant?

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9.6 Lending a Servant

9.7 Carelessness of a Servant

9.8 Mistakes of a Servant

9.9 Willful Wrong Servant

9.10 Theft by Servant

9.11 Damage to Goods Bailed

9.12 Fraud by Servant

9.1 Introduction

The master/servant relationship is the commonest instance of vicarious liability, and thus a proper
exposition of vicarious liability is required. Vicarious liability is the liability of one person for the acts and
omissions of another person. The dictum “Qui facit per alium facit per se” (he who does a thing through another
does it himself) is the guiding principle in vicarious liability. “A” should not have necessarily participated in the
commission of the task nor should a duty of care owed by “A” to the injured party have been breached. What is
required is that “A” should stand in a particular relationship to “B” (the tortfeasor) and that B’s tort shall be
referable to that relationship. Therefore in the master/servant relationship the master is vicariously liable for the
acts of the servant committed in the course of employment. It is important not to confuse vicarious liability with
the primary liability of A for damages caused to ‘C’ by the act of B. This may arise in two ways; first, where A is at
fault in selecting B for the act or allowing him to continue in employment. Most of the cases concern the liability
of an employer for injury caused to one of the servants by a fellow servant. Secondly, there may be primary
liability even though A is not in fact guilty of any negligence but is under a non-delegable duty.

9.2 Objectives

The objective of this lecture is:

 Enable a student use the knowledge to appreciate the vicarious relationship of servant and master

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 To make the student understand the responsibilities placed upon the master which will help him/her in the
career.

9.3 Historical development.

The early Anglo-Norman period was a transitional one where the idea of complete liability to the wrongs
of servants or slaves was changing to the one of complete liability only where there has been command or
consent on the part of the master of the servant’s wrong doing. From 1300 onward, the change continued until
by the early 16th century the command theory became established. Thenceforward, during that century and the
next, the master’s liability was restricted to the case where he had committed the act complained of. On this
basis the liability clearly is not vicarious, for a man who orders an unlawful act is a direct participant in the tort.

By the latter part of the 17th Century form of liability had become inadequate in view of rising commercial
prosperity and the increasing complexities of trade but nothing changed until the time of SIR JOHN HOLT. HOLT
established the rule that the master was liable not only for acts done at his express command but also for those
done by his implied command, this to be inferred from the general authority he had given his servant in his
employment. Liability was thus related to the scope of employment and the foundation for modern law
Nevertheless the principle of primary liability was retained and in form at least the question was still whether
the master would be shown to have been direct participant in the tort as having impliedly commanded it.

The relationship of master and servant was not itself a legal requirement of liability- it was merely a
factual element on the case from authority could be implied and other relationships might serve the purpose
equally well. By the end of the 18th century the idea begun to grow that some special importance attached to the
relationship of master and servant as ever and in thereafter primary liability was not required to make a master
liable for his servant’s tort. Liability is established from relationship is thinly vicarious so long as the servant is in
the course of his employment.

9.4 Who is a Master?

A master is one who is in control of, supervises, teaches, has authority over or instructs another. In most cases
the master owns the instruments of work, procedures of work and controls the end results of the work. We can
also say that a master is the one that remunerates the servant for services rendered.

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The relationship between master and servant has two aspects:

Internal – as between the master and the servant:

In this relationship, the master has a duty for the safety of the servant and therefore must not do things that may
injure the servant. Working conditions must be such that they do not endanger the well-being of the servant. He
must therefore warn the servant of areas of danger or high risk.

External – as between them and third parties:

Do you remember the dictum “Qui facit per aliem facit per se”?

This relationship is where third party liabilities and application of the dictum would apply. The servant not only
acts in an internal relationship, but may also promote the business of the master through third parties. The
master therefore becomes liable for the servants actions.

9.4.1 Test of the Relationship

Four tests can be considered for the existence of the relationship. They include:

a) The master’s power to select the servant

b) The payment of wages or other remunerations

c) The master’s right to control the method or manner of doing the work

d) The master’s right of suspension or dismissal

Under all these the servant must agree and continue to work under a contract of service.

9.5 Who is a Servant?

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Since vicarious liability generally arises from a contract of service (‘Servant”) but not from a contract of services
(‘Independent contractor”) it is necessary to determine the indicia of a contract of service. At the outset it
should be vicarious liability, but it seems to be assumed that the question “who is a servant?” should receive the
same answer almost regardless of the context in which it is asked. CALDER v. H. ITSON VICKER & SONS
(ENGINEERS) LTD. 1988 I.C.R. 232.

It may be thought that the starting point in the inquiry should be to ask whether the parties themselves have
expressly assigned their contractual relationship to one category or the other, but such a declaration can in fact
never be conclusive on to the legal classification of the relationship, though it is one factor to be taken into
account by the court and in FERGUSON V. JOHN DANSON & PARTNERS (CONTRACTORS) LTD 1976 I.N.L.R.1213
whereby even though the parties had declared their contractual relationship to one category of the other, such a
declaration ought to be wholly disregarded. Thus a building worker who rendered services on the express oral
understanding that he was a “labour only sub-contractor” was nonetheless held to be a party to a contract of
service for the purpose of the construction (working places)

Regulations 1966 since the remainder of the contractual relationship was indistinguishable from that
prevailing between master and servant. This “labour only subcontractor” practice also known as “the hump”
grew up mainly to avoid payment of income tax under the “pay as you earn system” Tax legislation now attempts
to meet the point by special provision for the building trade.

At one time it was generally accepted that the test of the relationship of master and servant was that of
control, and a contract of service was thought to be one by virtue of which the employer “can not only order or
require what is to be done, but how it shall be done”. This was illustrated in the case of COLLINS V
HERTFORDSHIRE COUNTY COUNCIL (1974) K.B. 598. This distinction worked fairly well in the nineteenth
century, but does not entirely fit the realities of modern business. In simple terms, it is not true to say that in all
contracts of employment the master tells the servant how to do the job; our nuclear physicist is an example in
point. There are many jobs where the master cannot tell the servant how to do something because he does not
know himself.

The master is often a large corporation run by managers and directors, who employ staff for their
specialist skills and knowledge for example professionally trained persons as the master of a ship, the captain of
an aircraft and the house surgeon at a hospital would do. So long as they produce results they are left largely to
their own devices and how they go about a particular job. It cannot be said, however, that all these people are
independent contractors. It has therefore, now been recognized that the absence of such control is not
conclusive against the existence of a contract of service and various attempts to find a more suitable test have
been made.

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Integration Test

Because of this difficulty, Lord Denning came up with the novel solution of the “integration test”. If the activities
of the servant were an integral part of the master’s business then a master/servant relationship then such a
relationship did exist. His well-known statement about this reads:-“it is often easy to recognize a contract of
service when you see it, but difficult to say wherein the distinction lies. A ship’s master, a chauffer and a reporter
on the staff of a newspaper are all employed under a contract of service; but a ship’s pilot a taxi-man, a
newspaper contributor are employed under a contract of services. One feature which seems to run through the
instance is that, under a contract of service, a man is employed as part of a business, whereas under a contract
of services, his work, although done for the business, is not integrated into it but is only accessory to it.

One example from precedent will suffice, in READY MIXED CONCRETE (SE) LTD v

MINISTRY OF PENSIONS AND NATIONAL INSURANCE (1968) the employers dismissed all their drivers
and re-employed them as independent haulers. The men were under certain restriction, for example they had to
wear the company uniform, have their vehicle available to the company at a figure to be agreed based on market
values. The drivers also had to obey the instructions of the foreman, on the other hand, they paid their own tax
and national insurance, were allowed to use the lorries for other jobs, had full control of routes and breaks for
refreshment and could (and did) employ substitute drivers. Was this a contract of service or services? The
following were considered

(i) The servant agrees that, in consideration of a wage or other remunerations, he will provide his own
work and skill in the performance of some services for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the
other’s control in a sufficient degree to make that other master;

(iii) The other provisions of the contract are consistent with its being a contract of service

In MARKET INVESTIGATIONS LTD. V. MINISTER OF SOCIAL SECURITY, SUPRA it was held that “ The most
that can be said is that control will no doubt always have to be considered, although it can no longer be regarded
as the sole determining factor, and that other factors which may be of importance are such matters as:-

i) Whether the man providing the services provided his own equipment,

ii) Whether he hires his own helpers.

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 iii) What degree of financial risk he takes,

iv) What degree of responsibility for investment and management he has, and

v) Whether and how far he has an opportunity (profiting from sound management in the performance
of his task”

Application to Hospitals

Since 1942, it has been held that radiographers, home surgeons, whole-time assistance medical officers and
probably, staff anesthetist are the servants of the authority for the purpose of vicarious liability. It has also been
suggested that even visiting consultants and surgeons under the National Health Services are servants for this
purpose. However, in many of the cases, there has been a tendency to treat the question of a hospital authority’s
liability not as one of vicarious liability only but also as one of the primary liability of the authority for breach of
its own duty to the patient. The plaintiff has the burden of showing negligence.

Application to Police.

As until 1964 no person stood in the position of “Master” to a police officer. This meant that anyone
injured by the tortuous conduct of the police could have redress only against the individual officers concerned.

This is no longer so. It is provided by the police Act, S 48, that the chief officer of police for any police
area shall be liable for torts committed by a constable under his direction and control in the performance of their
functions. In the case of Wiltshire police Authority v Wynn, it was held that “the police authority, not the chief
constable, is vicariously liable for police cadets. This statutory liability is equated with the liability of a master for
the torts of his servants committed in the course of their employment, but the chief officer of police does not
have to bear the damages personally. Any damages awarded or costs awarded against him are paid out of the
police fund.

9.6 Lending a servant

A difficult situation arises when one (A) lends out his servant to another (B) person and in the process for
his other person (B) the servant commits a tort against (X). The question that arises is; who is vicariously liable
for X, A or B? In Mersey Dock and Harboour Board v Coggins and Griffith (Liverpool) Ltd., A employed B as the
driver of a mobile crane, and let the crane together with B as driver to C. The contract between A and C provided
that B should be the servant of C but B was paid by A, and A alone had power to dismiss him. In the course of
loading a ship, X was injured by the negligent way in which B worked the crane. At the time of the accident C had
the immediate direction and control of the operations to be executed by B and his crane but he had no power to
direct how B should work the crane and manipulate its controls. The House of Lords held that A as a general or
permanent employer of B was liable to X.

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 In such cases, the burden of proof, which is heavy, can only be discharged in exceptional circumstances
and rests on A, the general or permanent employer to shift the prima facie responsibility for the negligence of B,
on to the hirer, C, who for the time being has the advantage of B’s services.

In cases where a complicated piece of machinery and a driver are lent, it is easier to infer that the
general employer continues to control the method of performance since it is his machinery and the driver
remains responsible to him for its safe keeping.

In cases where labour only is hired, particularly where it is not of a highly skilled character, is lent, it is
easier to infer that the hirer has control not merely in the sense of being able to tell the workmen what he wants
done, but also of deciding the manner of doing it.

The question whether A or C is liable depends on many factors:-

1. Who is paymaster

2. Who can dismiss

3. How long the alternative service last

4. What machinery is employed and who owns it?.

In cases of this kind, the courts have generally adhered to the view that the most satisfactory test, if it
can be applied, is, who at the particular time has authority to tell B not only what he is to do, but how he is to do
it. C. may control the particular task to be performed, but he is not liable unless he also controls the method of
performing it. If C, though he has no authority to do so, expressly directs to do the act which is negligently done
and cases damage, C, is generally liable with B as a joint tortfeasor, but A is not liable. A term in the contract
between A and C that B shall be the servant of C on the particular occasion in not conclusive but such contract
may entitle A to claim indemnity from C for the damages he has had to pay to X. Beyond determining the liability
of A and C “inter se” it has only an indirect bearing upon the question which of them is to regarded as master of
the workmen, B, on a particular occasion.

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9.7 Carelessness of servant.

A servant may commit a tort due to unlawful carelessness and cause damage to other people’s property or
injuries. If this happens in the course of employment then the master is held responsible for his servant’s
conduct. Thus a master is liable for any damage or injury caused to other people by the conduct of his servant if
sent to work at a place away from master’s premises and drives some distance from his place if work to get
midday lunch.

In the case of century Insurance Co. Ltd. Vs. Northern Ireland Road Transport Board, the driver of a petrol
lorry, employed by the defendant, while transferring petrol from the lorry to an underground tank in the
plaintiff’s garage, struck a match to light a cigarette and threw it on the floor and thereby caused a conflagration
and explosion which damaged the plaintiff’s property. The defendants were held liable, for the careless act of
their driver was done in the course of employment.

9.8 Mistake of Servant:

At times, a servant may cause damages to property and injuries by mistake. The servant has an implied authority
to make reasonable efforts to protect and preserve property belonging to his master in an emergency which
endangers it. For wrongful, because mistaken, acts done within the scope of that authority, master is liable.
Master is held liable for the default of strangers if the servant himself was negligent in the course of employment
in allowing strangers to do his job.

In the case of Ilkiw vs. Samuel, a lorry driver in the employment of the defendants permitted a stranger
to drive his vehicle, thereby causing an accident. The defendants were liable, on the ground that the driver
himself has been guilty of negligence in the course of his employment in permitting the stranger to drive
without even enquiring whether he was competent to do so. Apart from a master being liable default of
stranger, they are also liable if a servant does the job of another, provided that what he does is sufficiently
connected with his master’s business and is not too gross a departure from the kind of thing he is employed to
do.

In the case of Kay vs. I.T.W. Ltd., a Storekeeper employed by defendants needed to return a fork-lift truck to a
warehouse found his way blocked by large lorry belonging to a third party. He attempted to move the lorry
himself, and by his negligence in doing so, caused injury to a plaintiff. Since the storekeeper has been employed
to driver trucks and small vans, the act of trying to move the lorry was not so gross and extreme as to take it
outside the course of employment. The defendants were liable.

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9.9 Willful Wrong of a Servant.

A master is liable for any willful wrong of a servant provided the act done is still in the course of
employment even if it is expressly forbidden. In the case of Limpus vs London General Ominibus Co, a driver of
the defendant had printed instructions from the defendant not to race with the bus, or obstructs other
omnibuses. In a collision, the defendants were held liable because what he did was authorized to do, namely, to
promote the defendants passenger-carrying business in competition with their rival.

9.10 Theft by Servant

The theft to which the goods stolen had been entrusted is the dishonest performance by the servant of
what he was employed to do honestly, that is to take care of the goods and this is sufficient for liability. In
Mossirs vs. C.W. Martin and Sons Limited, the plaintiff had sent fur coat to X to be cleaned, and the defendant
with her permission sent it on to the defendant’s who were specialists cleaners. The defendants handed the coat
to their servant, for him to clean it, and the servant stole the coat. It was held by court of Appeal that on these
facts the defendants were liable.

It could have been decided on the short ground that the servant’s tort, that in conversion of the coat was
a wrongful mode of performing the task entrusted to him by the defendants, namely the cleaning and taking
care of the coat and thus was committed in the course of his employment. The court of Appeal placed much
reliance on the duty owed to the plaintiff by the defendants themselves as bailee of the coat by the servant to
whom they had delegated their own duty of care in respect of it, constituted a breach of that duty. This is the
alternative grounds for holding defendant liable because he had entrusted the coat to his servant.

There may be liability where there is no bailment to the employer and the servant is not custody of the custody
of the goods but where the employer’s duty is to take steps to keep property secure.

9.11 Damage to Goods Bailed.

If the gods have been entrusted by the Master to take care of by his servant and the servant negligently damages
them, his master will be vicariously liable to their owner, for the servant has done carelessly what he was
employed to do carefully. It makes no difference that the servant at the time of his negligence was using the
goods improperly for purposes entirely of his own, for example if he uses a car bailed to his master and
entrusted to his care for taking his own, for example of he uses a car bailed to his master and entrusted to his
care for taking his friends for a ride and he damages the car in an accident. He is mush guilty of negligence in
looking after the car as he would have been if the accident had occurred while he was using the car as he would

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have been if the accident had occurred while he was using the car for an authorized purpose. The car owner’s
claim is based on the fact that the servant was guilty of negligent driving at the time and place in question.

And if the servant was using the car for a joy ride then he was not at the place at that time in the course
of employment.

9.12 Fraud by Servant

Fraud involves the persuasion of the victims, by deception to part with his property or in some way to
act to his own detriment and to the profit of the person practicing fraud. Thus in Llord vs. Grace, Smith and
Company, the defendant’s clerk fraudulently persuaded the plaintiff to transfer her property to him. Vicarious
liability arises from the position in which he had been placed that enabled him to this. His acts were within the
scope of the apparent or ostensible authority which had been clothed by the defendants and it is for this reason
that they were liable in Uxobridge Permanent Benefit Building Society vs. Pickard, the clerk had full authority to
conduct the business of the solicitors office in the name and on behalf of his principle. It was within his actual
authority to commit fraud, within the business conducted by the solicitors so long as he was acting within the
scope of that class of act, his employer is bound whether or not the clerk is acting for his own purposes or for his
employers purposes.

SUMMARY

We have established that master/servant relationship has two aspects: internal relationship where the
master has to provide safety to the servant and the servant provides service to the master at some wage;
external relationship where the dictum Qui facit per aliem facit per se applies. This relationship is governed by a
contract of service that is the service given is continuous at a given wage. Servants’ actions such as willful wrong,
theft of bailed goods, fraud etc. that lead to third party losses puts the master in jeopardy because he has
control over the servant. The actions of servants who are lent to other people may cause damage while there.
The master may be responsible for such damage.

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ACTIVITY

1. Define a “master” and a servant. Explain the relationship the master has with the servant

2. Describe the dictum “Qui facit per aliem facit per se”

3. What is the test of the master/servant relationship?

4. Differentiate between a contract of service and a contract of services

5. What responsibility does the master have towards bailed goods?

6. Discuss circumstances where a master (A) lends out a servant (B) to (C) to operate equipment owned by (A)
and the following happen:

Servant B causes damage to the property of a third party (D)

(C) interferes with the work of (B) and damage to (C)’s property is done by (B)

Without any interference (B) causes damage through negligent operation of machinery to (C)’ property.

REFERENCES

1. Insurance of Liability - Collin Smyth CII Tuition. Trivion services, Cambridge, England.

2. Penal Code Act. CAP 63 LAWS OF KENYA

3. The laws of Kenya – Turdor Jackson

4. General and Commercial law of Kenya – Ashiq Hussein

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5. Hepple and Mathews – “TORT”

6. Jalowicz “ON TORT”

7. Class notes and discussion. (Group).

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LECTURE 10: THE RISKS INVOLVED IN AGENT - PRINCIPAL
RELATIONSHIP (VICARIOUS LIABILITY CONTINUED)

Lecture Outline

10.1 Introduction

10.2 Objectives

10.3 Definitions of Agent and Principal

10.4 How Agents are Created

10.5 Types of Agents

10.6 Authority to Act

10.7 Agent’s Duties

10.8 Principal’s Duties

10.9 Risks and Liabilities Arising from the Relationship

10.1 Introduction

The principal/agent relationship is a vicarious relationship as we saw in master/servant relationship.

Therefore the dictum “Qui facit per aliem facit per se” also applies here. In most cases, businesses and even
governments use agents to transact business on their behalf. This relationship is also a fiduciary relationship
requiring that each party acts from appoint of honesty and transparency.

10.2 Objectives

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The objective of the lecture is:

To empower the student with knowledge which the students will use to make decisions as an agent or as a
principal in the business world

10.3 Definitions

10.3.1 Agent

An agent is a person expressly or implicitly employed to do any act for another or represent another in
dealing with a third person. Usually the other is called the principal. Therefore the principal is a person for whom
another act in dealing with third parties. It follows from the above that an agent is merely a bridge that connects
the two parties to bring a contractual relationship. Therefore the act of an agent doe within the scope of his
authority binds the principal and the third parties. It is from this relationship that risks arise when one of the
parties fail to adhere to the obligations of the contract.

The principal therefore shall be vicariously liable for the misdeeds of an agent whether acting within
authority or without. The risks which plague the agent or the principal in their contractual relationship arises out
of the various agency situations. It would be prudent therefore to look at how agency arises out of:-

10.3.2 Principal

Like in the case of master/servant, a principal is the one that hires the services of an agent. This relationship is
more of contract for services rather than a contract of service. Agents are hired to provide a specific service and
when it is done, the contract ends. In most cases agents are not salaried but receive a commission for services
rendered.

10.4 How Agents are Created

There are four ways an agent can be created:

(a) Express agreement

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 (b) Implications or by conduct

(c) Necessity

(d) Ratification

10.4.1 Express Agreement or operation of Law

This type of agency will arise by express appointment of an agent. As a general rule no particular form
of appointment is necessary to create express agency. He may be appointed verbally or writing. The law
may also authorize a particular person to act agent of the other, e.g. Parastals Act as agent pf the
government. The agreement can also be mutual.

10.4.2 Implied Agency

This arises agency relationship is inferred from the conduct or situation of the parties. The most
examples which arise from this kind of arrangement include Agency by Estoppel, Agency by
cohabitation.

Agency by Estoppel

It arises where one is estopped from denying the fact that he had acted in a manner likely to suggest that he was
a principal. E.g. if a person allows another to order goods on his behalf and he often pays for them, he will then
be estopped from denying the authority to the third person. The rule of estopped was held in the case of SCARF
v JARDINE 1882. in this case, a retired partner of the deceased from negotiated a contract with the plaintiff, who
did not know at the time that the partner had retired. It was held that the person was liable. Estoppel only arises
out of contracts of employment.

Agency by cohabitation.

Where a man and wife are living together, the wife is presumed to be the husband’s agent. The wife can
therefore purchase some necessaries suitable to his style of living as falls within the wife’s province of
purchase. However, the husband may rebut the presumption if he forbidden her to pledge his credit.

10.4.3. Agency through Ratification

Agency can also be created through ratification. This happens where an agent has no authority to
contract on behalf of a principal or exceeds such authority as he had, but when the principal ratifies such
acts he will be bound. Therefore the effect of ratification renders a contract binding.

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 It has a retrospective effect, that is, the agency is to have come into existence from the moment the
agent first acted and not from the date of ratification. However, void contract cannot be ratified. This was
raised in the decision made in BROK V. HOOK 1871 that a forged signature cannot subsequently be
ratified as it is a nullity.

10.4.4 Agency by Necessity

An authority may be conferred by law where an agent has acted by reason of genuine emergency with a
view to protecting his principal’s goods which are in danger of being perished. His action must be
performed in good faith.

The above agency relationships can only arise where the agent and principal have capacity. The capacity
of principal is instrumental because in the absence of the agent he should be able to enter such a
contract or do the thing himself. Contracts therefore entered into by minors, insane people are avoidable.
Agents on the other hand must be sane people who have acquired advancement age. Therefore all contract
made between agents and third parties are binding and the principal bear the risk of all the acts of the
agent.

10.5 Types of Agents

Out of the agency relationship, certain types of agents are created namely:-

Actual agent

Actual agents are agents to whom the principal has given express or implied authority to act

Ostensible

Ostensible agents are those who have not been given any authority but make others to conclude others to
believe reasonable that he has authority to act.

General agent

General agents on the other have been employed to transact all the business of the principal of a particular kind

Special agent

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 Special agents are employed to transact the business of the principal only on specific duty or act a
particular line of business..

10.6 Authority to Act

For agency relationship to hold, the principal must give the agent commensurate authority to perform
the tasks at hand. The authority should be sufficient to act in a particular manner he does. Authority can be
express and these are found in the words of the principal whether spoken or written. There are also
certain authorities given by implication. They are inferred from words of conduct of the principal and
the agent. His manifestation to the agent would indicate that agents have certain authority and hence
contracts made are binding to the principal.

Authority may also arise ostensibly or apparently as manifested by the agent. Authority therefore is very
essential in principal agent relationship. There are certain actions which may become binding. If the
agent omits certain facts. This may be used against the principal in a court of law. Armed with the above
authority, agents are free to carry the duties assigned to them. This raises some obligation which he has
to the principal.

10.7 Agent’s Duties

The main obligations or duties that an agent owes to the principal include:-

1. Agent must carry his work with reasonable skills, care and diligence and if he fails in the duties he
becomes liable to the principal for any loss suffered by him

2. The agent must keep proper accounts and must produce these to his principal. He should not mix
his principals money with his own unless the terms of agency permit him.

3. The agent must not make any secret profits or accept bribes. Where he does, he will be forced to
refund such an amount to his principal and forfeit his chance of receiving commission.

4. Agents must do the work under taken and must not further delegate his duties except where the
principal has allowed him.

5. The agent must not place himself between his duties and self interest and where he finds a clash
between his and those of principal he must uphold the interest of his principal.

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6. An agent should conduct himself with propriety to avoid creating disrepute upon principal
business in which he is engaged. The agent should not lower the reputation of the principal or
jeopardizes his business as to cause loss.

7. Where services involve personal relationships the agent should avoid conduct that makes
continued friendly association with principle impossible.

8. Agent should obey all reasonable instructions and directions of principal or regard to manner of
performing services he is instructed to perform

10.8 Principal’s Duties

1) The principal is not supposed to interfere with the work of an agent; the agent should be allowed to
work independently within his authority.

2) Principals have a duty and care to inform an agent of risks of physical harm pecuniary loss which
principal has reason to know that it exist in performance of authorized work and which principal has
reason to know that such risks are unknown to the agent.

3) The principal has a duty to render an account of monies or other property due to the agent.

4) The principal has a duty to pay a fair value of the services which the agent has performed and especially
if such services have been requested by the principal.

5) The principal has a duty to explain, clarify the work to be done explicitly. He should make it possible for
the agent to understand the terms and conditions of engagement.

10.9 Risks and Liabilities Which Arise Out of the Relationship

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 The duties of agent and principal which arise out of the contractual relationship carry with them
obligation, upon which failure to oblige either exposes the agent or principal to some liability and risks.
The liabilities which arise can be agent and principals themselves but can also extend to third parities to
whom the agent brings closer to the principal.

Where an agent acts under express authority and does some tortuous actions, the maxim “respondeat
superior” apply, this means let the superior respond. This therefore raises a situation where the
relationship has created a risk to the principal, the risk being liable for tort of the agent. The maxim
explain that one who multiplies his business though the agents must be “prima facie” liable for their
torts. However, such risks must arise in the course of employment.

The principal also risks losing his money if the agent is sued and uses the value due to the principal to
indemnify the plaintiff. However, the principal has to bear the risk of failure to indemnify the agent for
the work done.

Principals also risk losing their goods under lien when they have failed to remunerate the agent and to
pa other lawful expenses.

Agents under agency relationship also face risk of losing jobs when they act secretly and accept bribes.

Agents in their relationship with the principal face a myriad of risks especially to third parties where he
expressly assumes personal liability. The third party may, when contracting with an agent create a
condition that the agent agrees he will be personally liable for any breach of contract.

If an agent signs a negotiable instrument in his own name without making clear on the face of the
document that he us signing as agent, he then becomes liable.

The risks that the agent or principal faces may arise during the execution of their duties e.g. when a
principal fails to reimburse the agent on the work already done. Agency relationship is important since it
enables one to carry out work on behalf of another for a commission hence a potential form of
employment. The risks and liabilities often arise in any contract or agreement but it is upon the parties
to uphold the law and act within authority given in the contract

SUMMARY

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 The principal/Agent relationship is just another example of vicarious liability discussed earlier. We have
been able to see how agency relationships are created and the various types of agents. You should be able to
distinguish the various types and their impact on the principal. Both the principal and agent have certain duties
towards each other. The relation as we saw is a fiduciary one and it is important that honesty be seen in the
relationship.

As a vicarious relationship (external relationship), the agent who acts on behalf of the principal may
create liabilities through his involvement with third parties and the principal may be bound by these actions and
hence may incur losses. However, negligent and willful action and especially without authority, the agent may
become personally liable.

ACTIVITY

1. Explain how agents are created

2. Define an agent and a principal

3. What are the types of agents?

4. What do you understand by “authority to act”?

5. Explain five duties the agent has towards the principal and three duties the principal has towards the agent

6. Explain the maxim “respondeat superior”

REFERENCE

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Symith, Colin (FCII): Study Course 070, The CII Tuition Service

LECTURE 11: LIABILITY ARISING FROM CONTRACTS

Lecture Outline

11.1 Introduction

11.2 Objectives

11.3 Contract Wording

11.4 Professional Bodies

11.5 Plant Hire

11.6 Disclaimer Notices

11.7 Bailee

11.8 Common Carriers

11.9 Hotel Proprietor

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11.10 Occupiers of Premises

11.11 Summary

11.1 Introduction

A contract is an agreement voluntarily entered into by two or more parties to fulfill a certain purpose. The
contract creates obligations legally recognized at law. Such a contract, through it wording may seek to alter,
increase or even restrict a person’s common law liability. Breach of the obligations created by the parties to the
contract may lead to legal liabilities.

Contractual liability may arise in as many diverse situations depending on the diversity of the contract in terms of
its nature, scope and its wording. Contracts may not be enforced because of their illegality or failure to meet the
capacity to contract such as age of majority, insanity or lack of authority to act.

11.2 Objective

The objective of the lecture is:

To prepare a student for possible interpretation of a contract and its application in real life to avoid liabilities
arising out of contractual obligations.

11.3 Contract Wording

It is expected that the wording of a contract is stated clearly so that there is no doubt of the intentions of the
parties to the contract. Meaning of words must be common to all parties in the contract and must be words that
are in common usage both in general or specific business or profession.

11.3.1 Contra preferentem rule.

Where the parties to the contract are in dispute as to the meaning of the terms, the least favourable
interpretation will be adopted against the party who created the ambiguity. This is referred to as contra
preferentem. This will be awarded in spite of the existence of other clauses to limit or exclude liability.

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Let us look at some decided cases to illustrate the concept:

1. Alderslade v Hendon Laundry, Ltd. (1945). It was established in this case that indemnity does not protect
against negligence unless it so expressly provides. This means that the parties to the contract must be aware of
this provision and accept it.

2. Canada Steamship Lines Ltd. v Regem (1952). The employees of the Crown using welding equipment set fire
to a warehouse. The Crown were responsible for the fire and expected to invoke the indemnity and exemption
clauses to avoid liability. They could not take advantage of the existence of the indemnity and exemption clauses
due to their negligence.

3. Gillespie Bros & Co. v Roy Bowles Transport and Another (1973). A parcel of watches was stolen from a van
while the driver was signing for it in the warehouse. The defendants based their argument on the provision
under the Road Haulage Association Conditions of Carriage clause 3(4) (1967 revision) which constituted an
agreement in express terms that the trader will indemnify the carrier against all claims without exception,
including a claim arising from the negligence of the carrier himself or his servant. The Court of Appeal judge
Buckley L.J. said:

“It is however, a fundamental consideration in the construction of contracts of this kind that it is inherently
improbable that one party to the contract should intend to absolve the other party from the consequences of
the latter’s own negligence. The intention to do so must therefore be made perfectly clear for otherwise the
court will conclude that the exempted party was only to be free from liability in respect of damage occasioned
by causes other than negligence for which he is answerable”

NOTE:

It should however be noted that the position held by Buckley L.J was disapproved by the House of Lords in the
case of Smith and Others v South Wales Switchgear, Ltd. That the party in whose favour the indemnity clause

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was made (the preferens) was entitled to indemnity against the consequences of his own negligence or that of
his servants. It was argued that:

“The matter is essentially one of ascertaining the intention of the contracting parties from the language they
have used considered in the light of the surrounding circumstances which must be taken to have been within
their knowledge”.

11.3.2 Exemption Clause

An exemption clause limits or excludes certain types of losses or liabilities. When a loss occurs then one party to
the contract will not receive any indemnity.

11.3.3 Indemnity Clause

It describes the extent of compensation one party will receive on the happening of a described event, or when
there is a breach of the terms.

11.3.4 Fundamental Terms

There are general and fundamental terms in a contract. General terms touch on general aspects of the contract.
Fundamental Terms go to the root of the contract, that is they address the primary purpose of the contract.

Example: To complete the construction of a building in a specified period of time is a general obligation, but to
build to build a four story block using bricks is a fundamental obligation. Where there is a fundamental breach it
must be pleaded.

Let us look at a case to illustrate this concept:

Levison v Patent Steam Carpet Cleaning (1977): A valuable Chinese carpet sent for cleaning was lost by the
cleaners. It was held that a bailee who loses goods and seeks to rely on an exemption clause must, if the owner
pleads fundamental breach, show how the loss has occurred. The burden of proof is shifted to the bailee to show
that there was no breach of fundamental term. The fundamental term in this case was the production of the
carpet after it had been cleaned.

NOTE:

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If a party uses his superior power to impose an exception or limitation clause on the weaker party in the
contract, he will not be allowed to rely on it if he had himself been guilty of a breach going to the root of the
contract

11.4 Professional Bodies

These bodies such as Institution of Engineers, Architects and Quantity Surveyors, Contractors in the
Construction Industry and many others have their professional conditions that their members must follow or
which must be reflected in a contract with their principals. These conditions are based on the practice in the
trade. The intention of the conditions is to protect the employer (principal) in respect of claims made against him
which arise out of the execution of the work. The indemnity which is provided may therefore be qualified
dependent on the circumstances of the contract or works to be undertaken. The employer should accept liability
for his own negligence either wholly or in part and vice versa for the contractor. The contractor is not expected
to be responsible for inevitable or unavoidable damage. The contractor on the other hand must adhere to
professionalism and avoid subjecting an employer to unnecessary losses.

11.5 Plant Hire Contractors

Not all contractors have all the equipment they need for their work and therefore are forced to hire
some of the equipment or plant from others for example mobile cranes, excavators, bulldozers, concrete mixers
and the like. The Plant Hire Contractors may also have their own association with specific terms to be included in
the contract of hire.

Let us look at some of conditions that may be included in Plant Hire:

11.5.1 Handling of Plant

Condition one may read:

“When a driver or operator is supplied by the owner with the plant, the owner shall supply a
person competent in operating the plant and such a person shall be under the direction and control of the
hirer. Such drivers or operators shall for all purposes in connection with their employment in the
working of the plant be regarded as the servants or agents of the Hirer, who alone shall be
responsible for all claims arising in connection with the operation of the plant by the said drivers

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 or operators. The Hirer shall not allow any other person to operate such plant without the Owners’
previous consent to be confirmed in writing”.

What possible liability may arise from such a condition?

a. An incompetent driver may cause an accident causing losses to the hiring contractor and other third
parties

b. Only the Hirer can control the operator and if any other person interferes with the operation of the plant
for example the hiring party, then that party bears the loss for interfering with the operation of the plant.

c. In all circumstances, where the driver or operator acting as the agent of the Hirer causes losses, then the
Hirer becomes responsible for all claims against him

d. Where authority has been given in writing by the Hirer for another person to operate the plant, any
negligent acts that lead to losses the Hirer is responsible as the new operator becomes his agent.
However, where the Hiring party elects to provide his own driver or operator, any negligence by
his operator will rest upon him.

Condition two may read:

“During the continuance of the hire period the Hirer shall subject to other provisions (a) make good to
the Owner all loss or damage to the plant from whatever cause the same may arise, fair wear and tear
accepted, except as provided under the contract of hire, and shall also fully indemnify the Owner in respect of
all claims by any person whatsoever for injury to person(s) or property caused by or in connection with or
arising out of the use of the plant and in respect of all the costs and charges in connection with therewith
whether arising from statute or common law. In the event of loss of or damage to the plant, hire charges shall
be continued at idle time rates until settlement has been efected”.

What liabilities will arise from this one?

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a) The Hiring party is deemed to compensate any losses incurred by the Hirer as a result of damage to the plant
including fair tear and wear

b) Hiring party to be responsible for injuries/losses to third parties arising from Hiree’s negligence

c) Hiring part shall be responsible for any idle time that the plant is not in use.

11.5.2 Intention of the Wording

The intention of this wording is to protect both the plant owner and the hiring person against any
impropriety by either party. Especially responsibility is placed upon the Hirer to provide safe equipment and
competent drivers or operators. The Hiring party is expected not to interfere with the operation of the plant that
may place the safety of the plant and third parties at jeopardy.

Case law:

British Crane Hire Corporation v Ipswich Plant Hire (1974). The plaintiff and the defendant were both
engaged in the business of hiring out earth-moving equipment. The defendant was also involved in drainage
work on marshy ground and urgently requiring a crane, agreed to hire such a crane from the plaintiff, terms of
payment being agreed, but no mention being made of the plaintiff’s conditions of hire. The plaintiff sent the
defendant a copy of such conditions which provided, inter alia, that the hirer would be responsible for all
expenses arising out of the crane’s use. Before the defendant signed the form containing the conditions, the
crane sank into the marsh through no fault of the defendant and the plaintiff claimed from the defendant the
cost of recovering the crane. It was held, “allowing the plaintif’s claim, that the plaintif’s conditions of hire
applied since both parties were in the trade and of equal bargaining power and on the evidence the defendant
and the plaintif both understood that the plaintif’s conditions of hire would apply”.

11.6 Disclaimer Notices

The disclaimer notices clause restricts the ability of the bailees to deflect their legal responsibilities. The
Unfair Contract Terms Act now requires that a bailee or one party to a contract may not restrict his legal
responsibilities under the contract especially if one party does not participate in the construction of the contract.
Disclaimer notices are a way of contracting out of liability. The clause however, no longer can be used in
contracting out of liability for death or personal injury resulting from negligence.

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 A disclaimer notice must be brought to the attention of the bailor. Construction of the disclaimer notices
should be clear and displayed in a manner that it can be seen and understood. Examples of Disclaimer Notice
include:

“Cars are Parked at Owner’s Risk”

“Cars are driven at Owner’s Risk”

“Goods ones sold cannot be returned”

“The transporter shall not be responsible for goods lost in transit”

“Goods are carried at owner’s Risk”

Can you think of other disclaimer notices you have come across and their effect?

6.7 Bailees

Definition: A bailee is a person to whom property has been temporarily entrusted, either in return for
payment, or gratuitously. Gratuitously here means that the bailee does not pay any fee.

Bailees have responsibility over the goods bailed to them to ensure that they are not damaged or lost. As
we saw in vicarious liability, bailees become responsible for the action of their workers for negligent loss of the
bailed property.

The bailee for reward has a higher degree of liability than the gratuitous bailee. However, the owners
under common law is usually on the bailee whether for reward or gratuitous.

6.7.1 Contracting Out

Contracting out means restricting one’s common law liability toward the bailor. It is common for garage
owners, hoteliers, transporters and others to contract out liability by putting disclaimer clauses in the contracts

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or displaying the notices on their premises. The problem of contracting out is to prove that the bailor read the
notices, especially if they are not properly displayed.

Case: Sugar v L.M.S. Railway (1941). In this case a notice was printed on the face of a ticket

”For conditions see back” had been obliterated by the date stamp, with the result that the defendant
company was unable to prove that the conditions had been effectively brought to the plaintiff’s notice.

6.8 Common Carriers

What comes to your mind when we talk of a carrier?

There are all kinds of carriers but in our case we shall be considering carriers of goods. Let us now define
Common carrier:

It is a person who engages in transport of goods as a business and plies from one particular point to
another”

The common carrier can be an airline, train, ship and all modes of road transport. Such common carriers
are governed by various legislations including international conventions. At common law a common carrier has a
strict liability for the safety of the goods carried. Goods must be delivered in accordance with documentation of
delivery.

Restriction of Liability

Liability may be restricted in the following ways:

If the goods are valued goods such as jewellery, gold etc, a limit may be imposed.

If the goods are not properly declared unless the goods are lost due the criminal act of the carrier and
his servants

When the goods are declared, liability is restricted to the value so declared plus any charges for carriage

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 Condition of Carriage

The conditions are governed by practice and the standardized conditions.

Certain internationally accepted conditions also come into play especially for international Common
Carriers such as airlines and ships.

Liabilities are usually limited to certain values agreed under contract or by international conventions
between trading partners or governments. For example Warsaw and Hague Conventions on carriage by air or
sea..

Unfair Contract Terms Laws may also restrict or allow certain liabilities

11.9 Hotel Proprietor

Definitions:

Hotel is defined as “an establishment held by the proprietor as offering food, drink and if so required,
sleeping accommodation, without special contract, to any traveler/customer presenting himself who appears
able or willing to pay a fair sum for services rendered. Such individual must be in a fit condition to be received.

A guest is a person who has booked sleeping accommodation at an hotel before a time of loss or
damage. Liability towards him lasts during the period of booking in to the period of booking out. Every hotel has
official times for booking in and booking out.

11.9.1 Liability Arising

The following are some of the responsibilities the hotelier has:

Strict liability in respect of the safety of the property of the guest.

Fire that is negligently caused by hotelier hence hotels must ensure safety from fire

Property stolen, lost or damaged through the default, neglect or willful act of the proprietor or servant

Goods deposited by or on behalf of the guest expressly for safe custody with the proprietor, or a servant
through his authority

Where the guest or another person, acting on the guest’s authority, gave the property for safety but the
hotelier or his servant refused to take it.

Protection against any injury caused to the guest either by an intruder, or the work

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 Note:

It is expected that a guest would declare the valuable properties he is checking in with. If the guest does
not declare and give the valuable for safe custody, then he becomes responsible for his own loss.

11.9.2 Defenses

Only available defenses would be Act of God, Act of a stranger and Negligence of the guest.

11.10 Occupier’s and Owners of Property

Two kinds of people may enter another’s premises. These are visitors and trespassers. The occupier has a
common law duty towards a visitor that no harm shall come upon him. That is to take reasonable care in all
circumstances to see that the visitor will be reasonably safe while at the premises or in the use of the premises
for the purpose for which he was invited or permitted to be there.

11.10.1 Areas where duty or liability may be modified:

The occupier may extend, restrict, modify, or exclude his duty of care by agreement with the visitor or
otherwise. This could be done by bringing to the attention of the visitor an adequate notice to the visitor
modifying the duty.

The law provides that an occupier should expect that children are likely to take less care than adults and
therefore the occupier is expected to exercise his calling and guard against any special risks that may be
associated with children.

Merely warning the visitor of danger is not sufficient to discharge the occupier of his duty, unless the
warning was sufficient to keep the visitor reasonably safe. The case of Roles v Nathan (1963), two sweeps were
asphyxiated while working on a defective boiler on the defendant’s premises. It was held that the danger of
asphyxiation was a special risk incidental to the sweeps calling and the warning of danger given to the sweeps by
the occupier was sufficient, hence the occupier was not liable.

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 An occupier is not liable where the danger has been created by an independent contractor provided that
he acted reasonably in entrusting the contractor with the work and he took steps to ensure that he engaged a
competent contractor.

Defenses of volenti non fit injuria, statutory authority, invitation by occupier reduce the duty of the
occupier.

SUMMARY

In this lecture we were able to look at different areas where contracts are made. These are only but a
few examples, but in life we have a myriad of contracts where liability may arise and we must be aware of them.

Liability arising from contract as seen will depend on the legal obligations created by the parties to the
contract through the wording of the contract. Parties to the contract may vary, or modify their duties under the
contract as long as they collectively consent to the variations.

ACTIVITY

1. Define and explain the application of the following terms:

a) Contracting Out

b) Disclaimer Notices

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 c) Fundamental Terms

d) Indemnity Clause

e) Exemption Clause

2. Define a “Hotel” and state the liabilities arising from ownership of a hotel and the defenses available
to the hotelier.

3. What responsibilities do common carriers have?

4. Discuss possible liabilities that may arise from plant hire contracts stating circumstances where parties
to the contract may incur liability or may be released from liability.

5. Visit a library and research decided cases that may illustrate:

a) Disclaimer of liability

b) Liability of a Hotelier

c) Liability of an occupier of premises

d) Common Carier

REFERENCES

Symith, Colin (FCII): Study Course 070, The CII Tuition Service

LECTURE 12: LIABILITY ARISING FROM STATUTE

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Lecture outline

12. 1 Introduction

12.2 Objectives

12.3 Limitation of Action Acts

12.4 Kenyan Act Cap 26

12.5 Law Reform Acts History

12.6 Kenyan Acts

12.1 Introduction

Statutes are developed by Government and its subsidiaries or agents. In this lecture we shall only look at
some of the legislations that have been passed. It must be appreciated that it would be impossible to look at all
the legislations from which liability arises. Some of the legislations cited in this lecture are from the English Legal
System. However, we have also considered some of the Kenyan legislations. Whereas we have not touched on all
legislation, students must be warned that ignorance of the law is no defense and therefore they must familiarize
themselves with as many laws as possible.

12.2 Objectives

The objective is to make the student utilized the knowledge to apply in his/her day to day life and appreciate the
complexity of liability arising from statute.

12.3 Limitation of Action Acts

12.3.1 Definitions

Statute Barred: Means when actions cannot be brought.

It limits when action can be brought against the tortfeasor.

It state who can bring action

It also states who can be sued

It provides for establishing when damage/injury was discovered.

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12.3.2 History of Limitation of Actions Acts

Actio Personalis Moritur cum persona This maxim meant “Action dies with the person” This therefore implied
that before the advent of Fatal Accident Act (1846), if the tortfeasor died before action was brought, then such
action also died with him.

Fatal Accidents Act 1846

It mitigated the hardships experienced by dependants of the deceased by allowing such dependants to bring
action against the wrongdoer so long as:

 The deceased would have had a right of action.

 There is pecuniary loss suffered as a result of the death.

Relatives: wife, husband, parent, child, grandparents, grandchildren, brother adopted and illegitimate
children.

Measure of Damage:

It was based on actual net pecuniary loss suffered.

 Reasonable expectations of pecuniary benefits accrued from continued existence of the deceased i.e.
even the future pecuniary benefits growth.

 Calculation based on future earnings less amount spent on deceased himself.

 Benefits based on each dependant’s upkeep.

Bringing Action:

Could have been brought by:

 Personal representative within 3years.

 Any relative within six months if personal representative does not bring action.

Funeral Expenses

Reasonable funeral expenses were included:

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Period of limitation

1623 – Limit was set at six years

1936 – hen subject considered was discovered but six years was retained (by Law Revision Committee)

1954 - Reduced to 3 years

12.4 Limitation of Actions Act Cap 26 of the Laws of Kenya

Action under tort can be brought within 6 years.

If plaintiff cannot discover injury, he/she must bring action within 3 years of discovery.

If the plaintiff becomes disabled before action is brought, he/she must bring action within 3 years after such
disability or within 12 months after disability by his/her legal representatives

Action under contract can be brought within three years

Action under defamation can be brought within 12 months

Action in land can be brought within 12 years

12.5 Law Reform (Miscellaneous Revisions) Act 1934

The fatal Accidents Acts repealed the Actio Personalis Moritur Cum Persona maxim, that if the torfeasor was also
killed in the accident, any right of action against him was also extinguished by his deaths.

The act provided that:-

On death of any person all causes of action subsiding against or rested in him at the time of his death,
except defamation, survive against or for the benefit of his estate

Damages:

- Do not include exemplary damages.

- Damages are calculated without any reference to gain or loss to the estate.

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 - Funeral expenses.

- Damages may be paid in accordance to any will in place.

- Loss of expectation of life.

12.6 Law Reform (Personal Injury) Act 1948

Provided for reduction of any claim where claims maybe provided under other public schemes. Consider an Act
such as the Workmen Compensation where if there are other coverages under liability policies, payments from
the Workmen Compensation will be deducted.

12.7 The Law Reform (Husband and wife Act 1962)

It abolished the common law rule preventing spouses from suing each other in tort especially if substantial
benefit does not accrue to either party. However, in some states spouse battering may lead to compensation to
the battered spouse in certain cases this may be a criminal case leading to a jail term.

12.8 The Law Reform (Married women and Tortfeasors) Act 1935.

It provides that a judgment obtained against one joint tortfeasor is not a bar to an action against another or
others. However, any damages claimed must not exceed the total damages awarded. What this means is that if a
wife is sued and the award given by the court is say Kshs. 1,000,000/- and the wife can only pay Kshs. 600,000/-,
the plaintiff can now sue the husband for the balance.

Position before:

We should remember that the position before 1935 was that the husband was liable for all wife’s torts and was
expected to compensate the plaintiff for all the losses.

Position now:

Husband and wife are liable for their own torts separately except where they are operating as:-

- Agent and principal

- Master and servant

- Partners.

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12.9 Civic Liability (contribution) Act 1978

Provides for contribution between persons who are jointly or severally liable for the same damage and in certain
similar cases where two or more persons have paid or may be required to pay, compensation for the same
damage.

Initially, people under liability in contract could not seek remedy from a wrongdoer in tort. New liability under
contract and tort may be assigned to breach of contract and tort.

12.10 Third Party (Rights Against Insures) Act 1930.

As a result of suffering and hardships experienced especially when the responsible motorist becomes bankrupt.

- Rights are given against the insurers

- If the contract contains any conditions which purport to alter these legal rights they are declared of
no effect.

12.11 Partnership Act (1890)

Partners are liable jointly and severally for torts committed by any copartners in line with the practice of trade or
business carried out jointly.

Except:

 Where the act is without authority or out of authority.

 Where act is unrelated to business.

12.12 Children in Tort and Contract

Generally:

A child can sue and be sued in tort, but cannot conduct litigation in person. The minors must be represented by
the “next friend” and in defense by their “guardian ad litem”

Standard of care:

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The standard of care required of children is however, lower than that required of adults.

Case: Burnard v Haggis (1963)

12.13 SUMMARY

We have seen through various legislations how liability may or may not occur through the provisions of the
various laws. For example the Limitation of Actions Act show when action may be brought against the tortfeasor.
Beyond that period the tortfeasor is relieved from liability. Other laws also provide when liability attaches under
certain circumstances. The intention of legislation is to provide an avenue where justice is seen to be done. For
those who cause injuries/losses to others must be subjected to some penalty.

The statutes cited above are only but a representative of the very many statutes that are available in our legal
system. It is assumed that everyone knows the law and ignorance of it is not a defense. Students should
therefore familiarize themselves with various laws.

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