General negligence

The area to be explored is general negligence

In the case of allasan kotokoli v moro hausa edusei j stated that for an action of negligence to succeed the plaintiff must
prove that there was in existence a duty owed to him, a breach of that duty by the defendant and injury resulting from the
breach.

Definition of duty of care- in derry v peak it was stated that a duty of care arises when there was such a proximity between
persons or properties of parties that absence of care might cause damage by one to the other

A duty of care may arise under two main situations. They are precedent situations and novel situations

Precedence situations

Rescue-

• The rule is that if by the negligent act of the defendant a person is put in peril the defendant owes a duty of care to
anyone who was reasonably foreseeable to come to the rescue of those in peril-chadwick v btc. Two trains collided
and the plf who had once suffered psycho-neurotic symptoms went to rescue and later suffered anxiety neurosis. It
was held that they owed a duty of care to the plf as it was reasonably foreseeable that in such an accident someone
would come to the rescue
• Must not act wantonly of show disregard for own life-morris in baker v t e hopkins
• A busybody cannot recover under this action-cutler v united diaries . He plf was injured when he entered a field to
calm some horses. There was no one in danger. It was held that the plf was a busybody and that with no one in
danger he volunteered to the horses at his own risk

Nervous shock

• Definition of nervous shock- reaction to an immediate and horrifying impact resulting in some recognizable
psychiatric illness. This is serious mental disturbance outside the range of normal human experience and not
merely the ordinary emotions of anxiety, grief or fear-page v smith. The claimant had suffered from ME over a
period of time and was in recovery when he was involved in a minor car accident due to the defendant's negligence.
The claimant was not physically injured in the collision but the incident triggered his ME and had become chronic and
permanent so that he was unable to return to his job as a teacher. A defendant, who is under a duty to care to the
plaintiff, whether as primary or secondary victim, is not liable for damages of nervous shock unless the shock results
in some recognized psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it
relevant that the illness takes a rare form or is of unusual severity
• Sorrow and grief are not recoverable-hinz v berry
• Class of persons-They have close relationship with the injured person-mcloughlin v o'brian, alcock v chief
constable of south Yorkshire-lord wilberforce
• Proximity in time and space-mcloughlin v o'brian
• Means by which such shock was caused-must be through sight or hearing or immediate aftermath and not
communication by a third person-mcloughlin v obrian

Pecuniary loss
 • Duty of care exists where the economic loss was reasonably foreseeable from the defendant’s act -hedley byrne v
heller & partners
• Test is if it was reasonably foreseeable and direct-scm v whittal-lord denning-except where such loss is the
immediate consequence of the negligence, Spartan steel and alloy v martin and co. SCM v Whittal- The
defendants, building contractors, were rebuilding a boundary wall when a workman damaged an electric cable
owned by the electricity board which ran alongside the road. The cable supplied electric current to several factories
in the road in the plaintiffs’ typewriter factory. Plaintiffs alleged that the defendants had negligently damaged the
cable causing a seven hour power failure in their factory and resulting in damage to materials, machines and
consequential loss of production. Held-the contractors were working near an electric cable which they knew supplied
electricity to the whole neighborhood. They knew that if they damaged the cable the current would be cut of and
damage would be suffered by the factory owners and so they owed a duty of care. spartan steel and alloy v martin
and co
• A duty arises where there is damage to person or property-denning in SCM v Whittal
• If the loss is consequent upon injury to person or property- electrochrome v welsh plastics. The def’s servant
negligently drove into a fire hydrant and damaged it. This resulted in the cut off of water supply to the plf’s factory.
The plf lost a day’s work in their factory. It was held that there was no injury as the duty held no to damage the fire
hydrant was owed to the owner and not to the plf who were not the owners.

Novel situation

• The loss must have been reasonable foreseeable. Donoghue v Stevenson. Mrs Donoghue went to a cafe with a
friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so
that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and
also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the
bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury
as a result. She commenced a claim against the manufacturer of the ginger beer. Lord atkin held that "The rule that
you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question " Who
is my neighbour ?" receives a restricted reply. 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 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."
• There must have been a relationship of proximity between the parties-donoghue v stevenson
• It must be fair, just and reasonable that the law impose a duty-Caparo industries v dickman. A company called
Fidelity plc, manufacturers of electrical equipment, was the target of a takeover by Caparo Industries plc. Fidelity was
not doing well. In March 1984 Fidelity had issued a profit warning, which had halved its share price. In May 1984
Fidelity's directors made a preliminary announcement in its annual profits for the year up to March. This confirmed
the position was bad. The share price fell again. At this point Caparo had begun buying up shares in large numbers. In
June 1984 the annual accounts, which were done with the help of the accountant Dickman, were issued to the
shareholders, which now included Caparo. Caparo reached a shareholding of 29.9% of the company, at which point it
made a general offer for the remaining shares, as the City Code's rules on takeovers required. But once it had control,
Caparo found that Fidelity's accounts were in an even worse state than had been revealed by the directors or the
auditors. It sued Dickman for negligence in preparing the accounts and sought to recover its losses. This was the
difference in value between the company as it had and what it would have had if the accounts had been accurate.
Lord bridge held that there should exist between the party owing the duty and the party to whom it is owed a
relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one
in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the
one party for the benefit of the other
Breach of duty

This is measured by the standards of a reasonable man-menlove v vaughan

• Likelihood of injury/foreseeability of harm-bolton v stone. The plf was hit and injured by a cricket player on a cricket
ground which was surrounded by a seven feet fence. There was evidence that over a period of 28 years only 6 balls
have made it over the fence. It was held that a man is not in breach of his duty in respect to an injury which was so
unlikely to happen as would make the man provide against it
• Magnitude/seriousness of the risk-paris v stepney borough council. The plaintiff, a one-eyed man employed by the
defendants, was working in conditions involving some risk of eye injury, but the likelihood of injury was not sufficient
to call upon the defendants to provide goggles to a normal two-eyed workman. In the case of the plaintiff, however
goggles should have been provided for, whereas the risk to a two-eyed man was of the loss of one eye, the plaintiff
risked the much greater injury of total blindness. It was held that because the risk of greater injury to the employee
ne eye, the employer was in breach of duty in not providing protection measures
• The importance or social value of the activity engaged in or the end to be achieved-daborn v bath tramway The
plaintiff was driving an ambulance with a left-hand drive and with one driving mirror on the left-hand side attached
to the windscreen. The ambulance was completely shut in at the back so that the plaintiff was unable to see anything
close behind her. The defendant driver negligently tried to overtake her when she signaled with her left hand that
she was to turn right. The driver of the motor bus collided with the plaintiff’s ambulance and the plaintiff sustained
severe injuries. She sued the driver and his employers. It was held that in measuring due care one must balance the
risk against the end to be served
• Expenses involved in the safety measures as against the risk-latimer v AEC. A rainstorm caused the def’s factory to
be flooded and the floor covered with an oily cooling mixture. Sawdust was used to cover the floor but it got finished
and so some areas were left untreated. The plf was working in an untreated area and fell and injured his ankle while
attempting to load a heavy barrel. It was held that the def had done all that a reasonable employer was expected to
do having regard to the degree of risk
• Compliance with the general and approved practice. However the approved practice itself must be reasonable- roe
v minister of health. An anesthetic was administered to the plf by the def who was a medical doctor. The anesthetic
was kept glass ampoule in phenol. The phenol unfortunately seeped into the bottle through invisible cracks. It
contaminated the anesthetic resulting in the plf becoming permanently paralyzed. The doctor had visible examined
the anesthetic before administering it. It was held that that was the approved practice at the time and so the def was
not negligent as he took all the precautions that a person in his position would have done at the time

Res Ipsa Loquitor-the thing speaks for itself

• The thing causing damage must be under the management/control of the defendant or his servants-ude v bonjut.
The def left his house to his gf and others and travelled. Those in charge left the tap running and water overflowed
and damaged the plf’s goods downstairs. It was held that he was liable as the place was in occupation for which he
was responsible.
• The accident is such that in the ordinary course of things it does not happen when care is taken-scott v london st
katherine docks
• Absence of explanation. Explanation must be exact and show that there was no breach of duty-mbadiwe v yaya.
The plf parked his car on the left side of a road. The def’s car ran into the rear of it. The def explained that the plf’s
car was badly parked and that he would have hit the gate had he not hit the car. It was held that the explanation
given was unreasonable and that his statement meant that there was more space to pass but he chose to hit the car.
• The plf must not know of the cause of the accident-barkaway v south wales transport. The appellant’s husband was
killed while traveling in the defendants’ omnibus which veered across the road when the offside front tyre burst and
fell over an embarkment. The cause of the accident was a defect in the tyre. It was held that if sufficient facts are
 known as to the cause of the accident, res ipsa does not apply and the onus of roof was on the plf to prove
negligence.

Resultant damage

• Causation- ‘but for’ test- barnet v. Chelsea and kensington hospital management committee. A night watchman
was taken to a hospital complaining of vomiting. The duty casualty officer refused to see him; and told him to go
home and get his own doctor. A few hours later he died of arsenic poisoning. It was held that although the doctor
was negligent he was not liable as the death was not a result of the negligence
• Remoteness of damage-two schools of thought
o liability for all direct consequences-re polemis
• This is usually applied to personal injury cases-smith v leech brain
the deceased was employed as a laborer and galvanizer. He got a burn on his lips as a result of
contact with molten metal. He burn was treated but later developed into cancer. This was
because he had a pre-malignant condition resulting from contact with tar. The deceased died of
cancer. The court held that the burn was the promoting agency of cancer in the tissues which
already had a pre-malignant condition. The question was whether the employers would have
foreseen the burn. If a man is negligently run over... it is no answer to the sufferer’s claim for
damages that he would have suffered less injury... if he had not had an unusually thin skull or an
unusually weak heart

o Liability for only foreseeable consequences-wagon mound

Novus actus interveniens

If there is an intervening event it breaks the chain of causation. However the chain of causation is not broken if the thing that
happened is the very likely thin to happen but for the negligence of the defendant-adu v gliksten. The plaintiff's vehicle was
damaged as a result of an accident which was clearly caused by the negligence of the second defendant, servant of the first
defendant. The car had been parked when the defendant rammed into it. The plaintiff's driver then in charge of the vehicle,
left it unattended on the high road. When he returned to it the next day with his master, the plaintiff herein, he found that
several parts had been stolen from the vehicle, with the result that it was uneconomic to repair it. When asked why he did
not arrange for a watchman to watch the vehicle in his absence he said he "was perplexed at the sight of the accident and
rushed to inform the lorry owner’’. It was held that the driver's answer indicates that he was thrown into a dilemma as a
result of the accident. He took a course which though not unreasonable in the circumstances turned out to be less than
prudent. But as it was the defendants' negligence which put him in that dilemma they are liable for the full consequences of
that negligence

Elections

When a person is put in a situation where he is to choose between two evils and he elects the less dangerous alternative, the
defendant is liable should any injuries occur- ekwo v enechukwu. The plaintiff was a passenger in the defendant’s lorry.
During the course of the journey the seat he was sitting on came out of its position due to negligent fixing by the defendant.
The plaintiff fell with his right hand under the seat and broke his hand badly. The plaintiff refused to go to the hospital when
the defendant offered but opted to be taken to a native doctor. The plaintiff had refused to go to the hospital because he was
afraid his hand might be amputated. Some days later he was taken to the hospital suffering from a septic wound and had his
arm amputated. The doctor expressed the view that if he had come to the hospital immediately his arm might have been
saved. The West African court of appeal held that his belief and choice to go to the native doctor was reasonable especially
with the common knowledge that a portion of the population of Nigeria held strong beliefs in native doctors. Therefore the
plaintiff was not contributory negligent and so the defendant was held liable for the amputation as well.

Defences

Contributory negligence-this is when the plaintiff's own negligent conduct in combination with that of the defendant resulted
in injury to the plaintiff. In a situation like this the plaintiff is liable for his part of the contribution-part 1 of civil liability act
1963(act 176), section 1(1)

Apportionment of liability in case of contributory negligence

(1) Where a person suffers damage as the result partly of the fault of any other person and partly of the fault of that person
or the fault of someone for whom that person is responsible, a claim in respect of that damage shall not be defeated by
reason of the fault of the person suffering damage, but the damages recoverable shall be reduced to the extent that the
Court thinks just and equitable having regard to the plaintiff’s share in the responsibility for the damage.

Contributory negligence

The plaintiff's negligence must be in respect to the risk he exposed himself into-jones v livox quarries ltd, owens v brimmell.
The plf accepted a ride from the def knowing very well that he was drunk. They had spent the night drinking. An accident
occurred with the plf sustaining injuries. It was held that the plf contributed to her injury as she knew the state of the def and
yet accepted the ride.

Volenti non fit injuria

This is when the plaintiff consents or exposes himself to the risk to injury-cutler v united diaries. The Claimant was injured
when he entered a field to calm some horses. His claim for compensation was unsuccessful as the horses presented no
immediate danger to persons or property and there was no need for him to intervene. He was thus held to be volens.

If may arise when

• The plaintiff agreed that the defendant was not liable

• The plaintiff was guilty of contributory negligence

• The plaintiff agreed to defendant conforming to a standard of care which is lower than normally required by law

It must be proven that the plaintiff voluntarily and freely with full knowledge of the risk, agreed to the conduct-gyasi v
state gold corporation & Anor. The plaintiff was an employee of the first defendants and so was the driver of the car. While
negotiating a sharp curve, the driver went into the lane of the other vehicle resulting in a collision. The plaintiff sought for
damages. It was contended by the defendants that the plaintiff had control of the vehicle and had allowed the manner in
which the vehicle was driven that day. It was held that there was no evidence whatsoever to support the contention that the
plaintiff having full knowledge of the nature and extent of the risk involved consented to it. Neither could it be said that the
plaintiff was guilty of conduct which permitted the negligent manner in which the defendants' driver drove the vehicle nor
was there any evidence of acquiescence on the part of the plaintiff. Being in control of a driver in charge of a vehicle on
which one was travelling required more than merely being able to tell him to reduce his speed. There must be evidence of
the driver being under the complete dominion of the passenger which was not the case here

Negligence in relation to chattels

Manufacturer's liability principle in donoghue v Stevenson- MPSUWAPLP
A manufacturer of products which he sells in such a form as to show that he intends to reach the ultimate consumer in the
form in which they left him with no reasonable possibility of intermediate examination and with knowledge that the
absence of reasonable care in the preparation of putting up of the products will result in an injury to the consumer's life or
property owes a duty to the consumer to take that reasonable care

Manufacturer includes repairers, masons, designers, assemblers and even suppliers of articles-brown v cotterill. The
defendant, a mason negligently erected a tombstone and as a result it fell on the plaintiff who was lawfully in the churchyard.
It was held that he was a manufacturer and therefore liable.

Products include things used externally and internally-grant v australian knitting mills. The plaintiff contracted dermatitis
through wearing woolen underpants which had been manufactures by the defendants. The disease was caused by the excess
of sulphites negligently left in the underpants by the defendant. It was held that the defendant was liable as no logical
distinction could be drawn between a noxious thing taken internally and a noxious thing applied externally.

The sale of product is not limited to items given in exchange for consideration but also items such as free samples-hawkins v
coulsdon and purley udc-Denning

Ultimate user is anyone foreseeably harmed by the defective product-stennet v hancock. The owner of a lorry took one of
the wheels of the vehicle to a motor repairer with instructions to reassemble it. The defendant did it. While driving It the
flange came off and injured the plaintiff. It was held that the plaintiff was an ultimate consumer and so by manufacturing a
product negligently and resulting in injury to the plaintiff he was liable.

The test for determining whether there was no reasonable intermediate examination is whether the manufacturer
contemplated that any defect will remain there at the time of their use by the plaintiff-dransfield v british insulated cables-
hawkes j the defendants were manufacturers of a bull ring, a ring through which overhead trolley wire passed and which has
been supplied to a corporation to be used in their overhead system of wires. An employee while working on the wires was
knocked down from a wagon and killed by the breaking of the ring. The ring had not at anytime time been subjected to a test
either by the defendant or the corporation. It was held that although the defendants were negligent in the manufacture of
the ring there was an opportunity for intermediate examination of the ring by the corporation and that would have disclosed
the defect.

• If the consumer detects the defect but uses the product, the consumer might be held to be contributory negligent-
rimmer v liver pool city council
• If the consumer misuses the product in an unfashionable way, the manufacturer may not be liable-aswan v lupdine
• A defect may be in the design, the container, labelling or packaging-street 8th edition

In english law the burden of proof laid on the plaintiff to show absence of reasonable care-lord macmillan in donoghue v
stevenson

Preparation and putting up-The rule is based on the control of the production process of the product and also extend to
distributors who are expected to test the product- Donoghue v Stevenson. Lord Macmillan stated that it covered such
negligent acts as occur in the actual manufacture of the products.

The manufacturer must be in control of the production process-lord macmillan in donoghue v stevenson

The injury must be to the consumer's life or property as well as economic loss-Hedley byrne v heller partners

In Ghana, res ipsa loquitur applies- aboagye v kumasi brewery ltd . The plaintiff was drinking beer with some friends when he
found a rotten palm nut in the beer. He had a funny feeling after seeing the palm nut and felt like vomiting. During the night
he vomited and had frequent stools. He was seen by a doctor the next day who noted that his symptoms were due to
poisoning. . it was held that the fact that the nut was found in the beer raised the legal maxim res ipsa loquitur and presumed
negligence of the manufactures in the preparation of the beer.
Employer’s liability
In Wilson & Clyde coal co. ltd v English it was said by Lord Wright that an employer owes a personal duty to his employee to
provide a competent staff of men, adequate material and a proper system and effective supervision. Whether an employer
owes a duty is a question of fact.

However this does not imposes on the employer a duty to take special care in respect of an employee who would suffer
greater injury should it occur except what the employee is doing is in itself dangerous-paris v stepney. The plaintiff, a one-
eyed man employed by the defendants, was working in conditions involving some risk of eye injury, but the likelihood of
injury was not sufficient to call upon the defendants to provide goggles to a normal two-eyed workman. In the case of the
plaintiff, however goggles should have been provided for, whereas the risk to a two-eyed man was of the loss of one eye, the
plaintiff risked the much greater injury of total blindness. It was held that the work in itself was not a dangerous one and so
the defendant were not ordinarily obliged to provide goggles as part of the system of work and that the plaintiff’s disability
was not relevant to the severity of duty owed to him in that the work did not expose him to a greater risk of injury but a
greater injury

The law does not require employers to dismiss employees if it is the only way of avoiding liability-withers v perry chain. The
plaintiff, an employee of the defendant’s had to stop the job because of dermatitis due to grease contact. The employers
took all precautions against contracting of the disease by providing gloves and cream against irritant in the grease. The
employee contracted the dermatitis 3 times each of which she was out of the job and was re-employed on her own
insistence. She was simply allergic to the grease. It was held that the employers were under no duly to discuss or to refuse to
employ an adult employee who wished to do a job merely because there might be the same skin risk to the employee in
doing the work

The employer owes a personal duty to provide competent workman-black(butler) v fife coal co ltd, hudson v ridge
manufacturing co ltd. The husband of plaintiff was killed by an outbreak of poisonous gas while working in the employment
of defenders, a limited company, in a coal mine of which they were owners. In an action for damages at common law and
alternatively under Employers' Liability Act 1880 (c 42) (repealed), the sheriff-substitute found that defenders were liable
inasmuch as they had failed to appoint officials competent for the working of the mine.

The employer must provide adequate appliances and tools. The employer is not liable for defective tools provided they
were procured from reputable manufacturers and the defect was not discoverable upon inspection- davie v new merton
brd. Mills the defendant had bought some tools with a defect not discoverable upon inspection nor was intermediate
examination by the employers between the time of its manufacture and its use reasonably to be expected. The plaintiff used
the tool and got injured by in his left eye. It was held that the defendants were no liable as they had taken reasonable care to
provide proper appliances and were not responsible for the negligence of the manufacturers.

• If the job involves special risks, the employer must provide protective materials and reasonable steps should be
taken to see that they are used-clifford v challen & sons the plaintiff was employed by the defendants and had to
use synthetic glue in the course of his work. The glue could cause dermatitis unless a special cream was used and the
arts which made contact with the glue was washed. Precautionary measures were put on the notice board and the
cream was kept in the factory store to which the workmen had access. The foreman of the defendant took no steps
to ensure its use by the workmen. The plaintiff contacted dermatitis. It was held that the protective cream should
have been provided in the shop and a system provide where the workmen would use it according to government
notice. The defendant were in breach of that duty and so liable
• The employer must protect his workers from foreseeable harm-smith v leech brain
 • Woods v durable suites- the plaintiff was an experienced workman of 56 years and had specifically be instructed by
the manager to use the protective measures against synthetic glue. He did not fully observe them and as a result
contracted dermatitis. It was held that the defendants had discharged their duty to take reasonable care for the
safety of their workman and not to subject them to unnecessary risks and that they were under no duty to provide a
foreman constantly watching and ensuring that a workman of his age and experience took precautions as he has
been instructed to take.

The employer is to protect his employees from foreseeable harm- lord parker in smith v leech brain & co ltd

The employer must provide a safe system of work-Kussasi v Ghana cargo handling. The plaintiff, a professional driver, was
employed by the defendants as a fork-lift driver. Whilst on duty driving a fork-lift, conveying bags of rice from one point to
another a pallet of 36 bags of rice crashed from a crane on him. He became unconscious and was rushed to the Effia
Nkwanta Hospital where he was admitted for eight days. At the time of the accident the crane was being driven by an
employee of the co-defendants, the Ghana Railway and Ports Authority. The plaintiff says that the defendants failed to
provide a safe system of work for their workmen for they knew that goods were likely to fall from slings of pallets on to the
quay whilst they were slung over the heads of its workers engaged below without any provision being made for warning
them before the goods were lowered to the quay. It was held that a master does not provide a safe system of work by merely
providing a manual especially to an illiterate workman if no responsible person on behalf of the defendants supervised the
workmen. There was no supervisor present at the time of the accident. If there was one, he was negligent in the discharge
of his duties. The plaintiff had to keep his attention on the load he was to collect. Meanwhile the crane driver was ready and
placing other loads at a different spot at the quay. It was therefore the duty of the defendants to provide proper methods of
signaling 1 and warning to the plaintiff and other workmen engaged in off-loading the rice. I hold therefore that the
defendants owed a duty to provide a reasonable system of work for the plaintiff. This they failed to do

Defenses

Contributory negligence-clifford v challen. The plaintiff was also negligent and so the damages were borne equally

Volenti non fit injuria-withers v perry chain if the employment necessarily involves particular risks the employer would be
held to have no duty to remove these risks and a workman injured in consequence of undertaking them will not recover in
negligence.

Occupier’s liability
The area of law is negligence specifically liability of the occupier of premise to……………………

The obligations of the occupier for damage which occurs on his premises depend on the character of the entrant

Lawful visitors

Contractual visitor- a person who comes into the premises in pursuance of a contract with the occupier. The duty owed to
them is that his premises are as safe for the purposes of the contract as reasonable care and skill on the part of anyone can
make them. Frances v cockrell

• Where the occupier could not have discovered the defect even by the exercise of reasonable care, there is no
liability-gilmore v LCC. The defendant joined a physical training class organized by the defendant for a small fee while
engaging in one of the exercises the plaintiff slipped and suffered injury. It was held that the duty of the council was
to provide a floor which was reasonably safe in the circumstances and they failed.
 • This duty does not apply to the external part of the premises- bell v travco hotels. The plaintiff fell and suffered
injuries while walking down the quarter mile drive way which was the only road for pedestrians to and from the
hotel. He sued that the defendant failed to warn her an invitee of any unusual danger on their premises. It was held
that the principal of the duty of an occupier was relevant only to the interior premises.

Invitee- a person who comes into the premises for purpose in which both visitor and occupier have mutual economic or
business interest. The duty owed to them is to prevent injury from unusual danger which he knows or ought to have
known. Indemaur v dames. The plaintiff went to the defendant’s premises to examine several burners and to test the
apparatus they had fixed on the defendant’s premises. He fell through a hole accidentally without any fault or negligence on
his part and was injured. The hole was used by the defendant in connection with his sugar business. It was held that the hole
was unreasonably dangerous to persons not usually employed upon the premises but having a right to be there the
defendant was guilty of a breach of duty towards the plaintiff in failing to have the hole fenced.

• The law protects the invitee as long as he keeps within the limits of his invitation-walker v midland. A guest in an
inn, the property of respondent company, left his bedroom in the middle of the night to go to a water-closet. There
were properly lighted and easily accessible closets in the same corridor, but he went into a dark ‘service room’ the
door of which was shut but not locked, and fell down the unguarded well of a lift at the end of the room and was
killed. It was held that the general duty of an innkeeper to take proper care for the safety of his guests does not
extend to every room in his house, at all hours of night or day, but must be limited to those places into which guests
may be reasonably supposed to be likely to go, in a reasonable belief that they are entitled or invited to do so
• Pearson v coleman. A child, visiting the circus, left the tent to relieve herself. She passed the lions’ runway, where
she was mauled. She sought damages for personal injury.it was held that the only people invited into that enclosure
were those who came through the proper entrance. However, having entered the circus as an invitee, and there
being no proper facilities, it was foreseeable that a child would not take heed of the warnings, and for this purpose
she was an invitee. The circus was liable in negligence.

NOTE- the same duty is owed to visitors who enter as of right

Licensee- a person who comes into the premises for social reason with permission (express or implied) of the occupier. The
duty owed is to warn the licensee of concealed dangers actually known to him and not to the licensee or obvious to him.
Fairman v perpetual investment building. The plaintiff lodged in a flat let out by the defendant with her sister on the fourth
floor. Her sister’s husband was the tenant. While descending the stairs, she caught her heel in a depression fell and was
injured. It was held that as a licensee the only duty owed to her is to not expose her to concealed dangers or traps and that
the action failed because that danger was obvious

• He has a duty to warn them of new dangers created by him-lowery v walker. The defendant did not prevent the
public from crossing his field in the way to the railway station. He put a horse in the field which was to his knowledge
savage and it attacked and injured the plaintiff. Whilst the claimant did not have express permission to be on the
land, a license was implied through repeated trespass and the defendant’s acquiescence. By failing to warn the
plaintiff of the new danger he had breached his duty
• If a danger is not known to an occupier then no duty id owed to him-morgan v girls’ society. Plaintiff was on his way
to visit the tenants of offices in a building owned by the defendants. The door leading to the left was partially open,
and the plaintiff thinking that the lift was there, stepped through the door, fell down the shaft and was injured. In an
action for damages for the injuries received the defendants contended that they had contracted with independent
contractors to keep the lift in good working order, and that they did not know and could not reasonably be expected
to know that the lift was out of order. They employed people who knew better than they about lifts. I do not think
the defendants were guilty of any default. In this case the defendants created no trap. The trap was not discovered
by the people who ought to have discovered it. No concealed danger existed of which they knew or ought to have
known, because they employed competent people to advise them.
Unlawful visitors

Trespassers

There is no duty of care owed to the trespasser except not to inflict deliberate harm or should not act in reckless disregard
of trespasser’s presence if known-addie v dumbreck.

However the occupier owes a duty of common humanity-herrington v british railway board. The child had got through a
gap in the fence near the railway line. The board, as occupiers, were aware of previous trespasses but had failed to maintain
the integrity of the fence. The board was held liable for injuries to a six year old child who had been playing on the railway
line. The House of Lords held that the occupier of the railway premises owed a duty of common humanity to the child. Until
this case no duty of care was owed to trespassers.

• The duty does not arise until the occupier has actual knowledge either of the presence of the trespasser or facts
which makes it likely that the trespasser would come on his land
• The duty is to take reasonable steps to enable the trespasser avoid the danger-pannett v mcguiness & Co

Deceit
• Defendant must make a fraudulent misrepresentation-derry v peak.
• A statement of opinion would be actionable when indeed that opinion is not held-west London
commercial bank v kitson. The defendants directors of a company accepted a bill of exchange and
represented to one Ashdown that by the private acts of parliament by which the company was
formed they had the authority to do so. This representation was false. The plaintiffs who acted on it
suffered loss. It was held that the misrepresentation was on fact and not law and so they were
liable.
• It is also actionable to state half-truths and ambiguities-schneider v heath. The defendant
described the ship as clever, useful vessel for general purposes and that the vessel and her stores
are to be taken with all faults. The plaintiff bought the vessel and later found out that the bottom
was worm eaten, her keel was broken and she was unseaworthy. The plaintiff therefore refused to
continue with the purchase and demanded back her deposit. The defendant knew of these faults
and kept the vessel afloat so the faults would be concealed. It was held that it was fraud to take
steps to conceal the truth and that although the vessel was to be sold with all faults the defendant
could not avail himself to such stipulation if he knew of the secret faults and used means to prevent
the buyer from discovering them or made a fraudulent representation of her condition at the time
of the sale.
• The representation need not be made to the plaintiff but there must be an intention that the plaintiff should rely
on it-Landgridge v levy. The plaintiff’s father bargained with the defendant for the purchase of a gun for his own use
and that of his sons. The defendant stated that it had been made by a custom manufacturer and that it was good,
safe and secure. In reliance of what was told the father used the gun but it burst and injured him. It was later found
out that the gun was badly made and was made by a manufacturer of inferior quality from that represented
• Where representation is made to a limited class then there is no liability to those outside the
class-peek v gurney. A prospectus for an intended company was issued by promoters who were
aware of the disastrous liabilities of the business of Overend & Gurney which the company was to
purchase. The prospectus made no mention of a deed of arrangement under which those liabilities
were, in effect, to be transferred to the company. The appellant bought shares in the company and,
when it was wound up, he was declared liable as a contributory and had to pay almost £100,000. He
sought an indemnity against the directors, alleging misrepresentation and concealment of facts by
 the directors in the prospectus. It was held that his claim would fail because the statement was
intended to mislead only the original allottees and as he was a bought the share from a shareholder
he was not a member of that class
• The plaintiff must rely on the statement-smith v chadwick. The plaintiff sued the accountants and promoters of a
company. The plaintiff claimed he took shares in the company due to a certain misrepresentation that one Grieves
was a director of the company whereas this was not true. The plaintiff did not know nor have he heard of this man.
The plaintiff could not recover as he could not have relied on that statement if he neither knew the man nor have
heard of him.
• The plaintiff must suffer damage-kusi v kusi. The plaintiff, a licensed moneylender, lent a certain sum of money to
the defendant. The defendant offered as security for the loan several farms and an uncompleted house. Upon the
defendant's failure to pay the loan, the plaintiff exercised his right of sale. The defendant's family later sued the
plaintiff and set aside the sale on the ground that the properties which the defendant mortgaged were family
properties, whereupon the plaintiff sued the defendant for the recovery of the unsatisfied balance of the loan and
N¢590.00 damages for fraud and deceit. to sustain the tort of fraud the plaintiff had to prove not only that the
defendant made representations as to existing facts which were false to his knowledge but also that he intended that
the plaintiff should act on the false representations and be deceived by them. There must be proved an actual
intention to deceive the plaintiff. Then the plaintiff must go on to establish that he was influenced by the
misrepresentation, to his detriment. What was required was proof that he suffered damage as a result of the
misrepresentation: that is, that the one event caused the other and that he relied upon the truth of the
representation

Negligent misstatements
A duty of care in making non-negligent statements would be imposed whenever a special relationship exists between the
parties and responsibility is not disclaimed-hedley byrne v heller partners

A special relationship exists when-mcnaughton v hicks. The plaintiff was negotiating with a third party about a takeover bid.
The third party instructed the defendant, their accountants, to prepare accounts as quickly as possible. The plaintiff relied on
the accounts which were carelessly drawn up to make a bid. The plaintiff subsequently made a loss. The Court of Appeal
found that the defendant did not owe a duty of care to the plaintiff. There was insufficient proximity for a special relationship
as the defendant did not know the accounts would be sent to the bidder for the particular transaction. Account given by the
defendants was in general terms and accordingly it was not fair, just and reasonable to impose on the defendants a duty of
care to the plaintiffs

• The advice was required for a purpose made known to the defendant
• The defendant knew that the advice would be communicated to the plaintiff for the purpose made known
• The defendant knew that the advice was likely to be used without independent inquiry
• The advice is so acted upon to the plaintiff’s detriment

Duty would arise if adviser gains financially from the reliance by the advisee on the advice-anderson v Rhodes. In that case
the plaintiffs and the first defendants operated as wholesalers in the vegetable and fruit market. The first defendants, a
company of good standing sometimes acted as commission agents for other buyers. The practice in this business was that
payment came later after delivery. The second defendant was employed as salesman and buyer for the first defendants. The
third defendant was the first defendant's manager. As a result of the fact that the accounts of the first defendants were net
regularly brought up to date, they did not realize that a principal for whom lie second defendants placed certain orders was in
arrears. The second defendant, when he placed some orders on behalf of the principal (Taylors Ltd) with the plaintiffs,
represented to the plaintiffs that T Ltd. (i.e. the principal) was creditworthy. They took delivery of the potatoes sold to them
thereby but were unable to pay for them having become insolvent. The plaintiffs brought the action for damages against the
defendants on the ground of negligence in representing to them hat T Ltd were credit-worthy, and without which
representation they would not have entered into the transactions. Held by Cains J that they were liable: "the representation
here concerned a business transaction whose nature made clear the gravity of the enquiry and the importance and influence
attached to the answers." There was in the circumstances a duty to exercise care in the representation which was not done. If
first defendants had kept their accounts reasonably carefully they would have realised that they had evidence which made
the credit-worthiness of T Ltd doubtful.

Lawyer can be sued for negligent misstatement –fordwuoh v law chambers

Death in relation to torts

This action is derivative and would not lie if there was a defense to the action had the deceased lived, if the deceased had
agreed not to sue, had been settled (read v great eastern railway corporation) or was statute barred.

The plaintiff’s action is for the loss of their breadwinner and so measurement is based on pecuniary loss to the dependants
and not limited by any contract between the deceased and the defendant. Nunan v southern railway co. John Nunan was a
passenger on a train belonging to the defendants, which travelled from Charing Cross to Milton Range Halt. When they
arrived at Milton Range Halt, he and other passengers were going across the railway lines in order to leave when, owing to
the negligence of the defendants' servants, they were run into by another train and Nunan and others were killed. At the
time of his death, he was being carried under a contract which limited the liability of the defendants to £100. It was held (per
Bankes, Scrutton, Atkin LL.JJ) that the important thing under the Fatal Acts was whether he could have sued them had he
lived. If he could have then, although by the contract his claim would have been limited to £100, this will not affect his
dependants' action.

This action is to protect purely pecuniary interest and not mental suffering-blake v midland railway corporation. The
widow of Blake who was killed in a railway collision which occurred as a result of the negligence of the defendants. The
deceased was a merchant. The trial judge (Parke B), in his direction to the jury, used language which did not clearly indicate
that the plaintiff could not recover for mental suffering after the death (they could recover only for pecuniary loss caused by
the death). Coleridge J was of the view that, under Lord Campbell's Acts, the measure of damages was not the loss or
suffering of the deceased, but the injury resulting from his death to his family

Funeral expenses may be recovered –section 18(5) of act 176, baaye v prempeh

"Dependant", in relation to a person whose death is caused by a wrongful act, includes any member of the family of the
deceased, and any other person whom he was by reason of adoption under the Adoption Act, 1962 (Act 104) or otherwise
obliged to maintain and who suffers loss or mental distress as a result of the death;

"Member of the Family" means when used in relation to a citizen of Ghana anyone of those persons mentioned in the First
Schedule according as the family is based on the paternal or maternal system; when used in relation to a person who is not a
citizen of Ghana, the wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter,
grandson, grand-daughter, stepson, step-daughter, brother, sister, half-brother or half-sister.

Section 16—Action where Death Caused by Wrongful Act.

Where the death of a person is caused by the fault of another such as would have entitled the party injured, but for his death,
to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an
action for damages for the benefit of the dependants of the deceased.

The action shall be commenced within three years after the death.

Section 18—Damages.

(1) The damages under section 16 of this Act shall be—

(a) the total of such amounts (if any) as the court considers proportionate to the loss resulting from the death to each of the
dependants, respectively, for whom or on whose behalf the action is brought, and

(b) Subject to subsection (2), the total of such amounts (if any) as the court shall consider reasonable compensation for
mental distress resulting from the death of such dependants.

(5) In addition, damages may be awarded in respect of expenses actually incurred by the deceased before his death and in
respect of funeral and other expenses incurred by the dependants or the personal representative by reason of the wrongful
act.

(7) The amount recovered in the action shall, after deducting the costs not recovered from the defendant, be divided among
the persons entitled in such shares as the court may have determined.

Prospective loss can be recovered provided that the plaintiff had reasonable expectation of pecuniary benefit from the
continuance of life-taff vale railway corporation v jenkin. Action brought by the respondent on behalf of himself and his wife
under the Fatal Accidents Act, 1846 against the appellants for the loss of their daughter, aged 16, who was killed in a railway
accident for which appellants were responsible. At the time of her death, the respondent's daughter was an apprentice
dressmaker with two more months to complete her apprenticeship. She was an exceptionally clever girl and there was a good
chance of her making substantial earnings on the completion of her apprenticeship. The respondent was a fireman in a
colliery company, who suffered from varicose veins and was not in robust health. The wife kept a small green grocer's shop. it
was proved that, at the date of her death, the deceased who lived with her parents was nearing the completion of her
apprenticeship as a dressmaker and was likely in the near future to earn remuneration which might quickly have become
substantial, then there was evidence of damage which the jury could reasonably rely on

Prospective loss can be recovered when it is showed that there was a reasonable probability of pecuniary advantage and
not a mere speculative possibility of pecuniary benefit- Barnett v cohen.

Assessment of pecuniary loss

Davies v powell duffryn associated, baaye v prempeh -assess dependency in a lump sum and apportion it to the
dependants. Action by the widows of two employees of the respondents (Daniels Davies, John Sidney) fatally injured by an
explosion in one of the mines of the respondents. They attributed the accident to the breach of statutory duty and negligence
on the part of respondents

• (a) First is to ascertain amount of wages

• (b) Personal and living expenses
• A-b=basic figure
• Covert the basic figure into a lump sum by taking a certain number of years’ purchase and taxing this lump sum
down by having due regards to uncertainties in life

Damages can be recovered for shortened expectation of life and the assessment of damages is for the prospect of a
predominantly happy life-ayimavor’s case
Section 20-the court must not take into account these in assessing damages

• Sum payable on the death of the deceased under any contract of insurance
• Pension, gratuity in consequence of the death

Contributory negligence-section 21, baaye v prempeh

Section 24-the following causes of action die with a torfeasor

• cause of action for breach of promise to marry

• seduction
• inducing one spouse to leave or remain apart from the other
• adultery
• claim for compensation under the Workmen's Compensation Ordinance

Defamation
Defamation is governed by customary law and common law principles. Section 54 of the courts act states that in a dispute
between two person's in Ghana the applicable law would be their personal laws.

Customary law

Customary law protects reputation and injured feelings- wankyiwaa v wereduwaa

Customary law does not draw a distinction between libel and slander-apaloo JA in anthony v UCC.

Slander at customary law is actionable per se provided false-atiase v abbottey. The plaintiff a shopkeeper sued the
defendant for defaming her as a prostitute and saying that she used her store for prostitution and not for selling goods.
Publication of defamatory words under customary law are actionable if false and it does not matter whether they may be
rejected at common law as mere words or vulgar abuse uttered in the heat of a quarrel. There are two remedies-order for
retraction and apology, award for damges

Truth is not always a defence at customary law

Common law

At common law slander is distinguished from libel as this is essential in proving damage.

• Slander is not actionable per se but libel is.

• Slander is only a tort while libel can be a tort and a crime
• Slander is oral, impermanent and transcient.

Where a document containing defamatory matter is published by reading out loud to a third person or where
publication of the statement is to a clerk to whom it was dictated it is slander not libel-osborn v thomas boulter.
The plaintiff wrote to the defendants, his brewers complaining of the quality of the beer. The defendants sent one of
their emloyees to investigate and report. After the defendant dictated a letter to his typist in which he alleged that
the plaintiff had been adding water to the beer. Forrester v tyrell. The defendant received an anonymous letter while
at a meeting of a lodge of which both lie and; the plaintiff were members. The defendant read the letter to himself
and then, by leave of the chairman, read it to the members present. The jury found that the letter contained
defamatory matter reflecting on the plaintiff. This was held to be a publication of the libel.
 • Libel is written, permanent and visible to the eye-lopes LJ in monsoon v Tussads in an earlier murder trial of the
plaintiff, a verdict of not proven had been returned by the jury. There, he put up a successful defence of accident. In
their exhibitions of wax figures, the defendants placed the effigy of the plaintiff in the "chamber of horrors" which
contained models of many murderers and malefactors and the plaintiff was represented as happened in the killing,
the subject of the murder case. The plaintiff sued for libel and an interlocutory injunction to restrain the exhibition of
the model of himself. It was held that the defamatory matter may be conveyed in some other permanent form of
statue, a caricature, an effigy, chalk marks on a wall, signs or pictures may constitute a libel

Libel also includes films, radio, television and public performances of plays

Article 21

(1) All persons shall have the right to -(a) freedom of speech and expression, which shall include freedom of the press and
other media;

(b) freedom of thought, conscience and belief, which shall include academic freedom;

(c) freedom to practice any religion and to manifest such practice;

(d) freedom of assembly including freedom to take part in processions and demonstrations;

Article 12

(1) The fundamental human rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive,
Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural
and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.

(2) Every person in Ghana, whatever his race, place of origin , political opinion, colour, religion, creed or gender shall be
entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for
the rights and freedoms of others and for the public interest.

Article 162

(1) Freedom and independence of the media are hereby guaranteed.

(2) Subject to this Constitution and any other law not inconsistent with this Constitution, there shall be no censorship in
Ghana.

(3) There shall be no impediments to the establishment of private press or media; and in particular, there shall be no law
requiring any person to obtain a licence as a prerequisite to the establishment or operation of a newspaper, journal or other
media for mass communication or information.

(4) Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or
interference by Government, not shall they be penalized or harassed for their editorial opinions and views, or the content of
their publications.

(5) All agencies of the mass media shall, at all times, be free to uphold the principles, provisions and objectives of this
Constitution, and shall uphold the responsibility and accountability of the Government to the people of Ghana.

(6) Any medium for the dissemination of information to the public which publishes a statement about or against any person
shall be obliged to publish a rejoinder, if any, from the person in respect of whom the publication was made.
Article 164

The provisions of articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of
national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of
other persons.

Article 165

For the avoidance of doubt, the provisions of this Chapter shall not be taken to limit the enjoyment of any of the fundamental
human rights and freedoms guaranteed under Chapter 5 of this Constitution

Elements of defamation

• Proof that the communication is capable of a defamatory meaning

The test is whether the words tends to lower the plf in the estimation of right thinking members of the society
generally-lord atkin in sim v stretch-the defendant sent a telegram to the plaintiff asking hi, to send the possessions of a
maid as well as money borrowed from her. The plaintiff alleged that it meant he was in pecuniary difficulties and had to
borrow from a maid. It was held that the words were not capable of a defamatory meaning.

Mere abusive personal attacks spoken in the heat of an argument are not defamatory-bonsu v forson

• The words are actually defamatory. The words must be interpreted in their fair and natural meaning as ordinary
people would understand it except where innuendo is pleaded-cassidy v daily mirror newspapers. The defendant
published in a newspaper a photograph of one Mr. C and a Miss X together with the words "Mr. M.C, the race-horse
owner, whose engagement has been announced." The plaintiff was and was known among her
acquaintances as the lawful wife of MC. But the defendants did not know this. She brought an action for libel
pleading innuendo. It was held that the publication could be defamatory and, as the jury had found that the
photograph and the caption conveyed to reasonably-minded people an aspersion on the plaintiffs moral character,
she was entitled to succeed. Grubb v british united press- The plaintiff was the rector in a village of Somerset.
Unhappy events between him and his parishioners culminated in a meeting of the parishioners, rector and rural clan.
Persons not on the electoral roll and the press were asked to leave before the meeting started. The defendant
newspaper published, on the next day, an article with large headlines in which they stated the above facts and also
that the plaintiff charged £20 for wedding bells. The plaintiff sued and pleaded innuendo. It was held that an
innuendo is an allegation that words were used in a defamatory sense other than their ordinary meaning and must
be founded on facts and matters and cannot be founded only on interpretation because, if the words bear the
interpretation imputed to them, they are defamatory in their ordinary meaning.

• The words were in reference to the plf-knupfer v london express newspaper. The newspaper published an article
referring to an as association of political refugees which, it was admitted, could have been defamatory if it had been
written about a named individual. The appellant was head of the U.K. branch of the association which consisted of 24
members. It was held that the applicant was not entitled to damages as the words were written of a class and he had
failed to show that they were pointed at him as an individual, i.e. there was no reference to him..

When the words are spoken or written about a group or class the size of the class, generality of the charge and extravagance
of the accusation are considered-browne v dc thomson & co. ltd. the defendants' newspaper published an article stating that
in Queenstown, the Roman Catholic authorities had instructed that all protestant shop assistants should be dismissed. The
seven persons who alone exercised religious authority on behalf of the Roman Catholic Church sued for libel and succeeded.

• The words were published-pullman v hill.

If a person becomes aware of the defamatory matter through stealing or eavesdropping there is no publication-huth v huth.
The defendant posted a statement to the plaintiffs, in a sealed envelope, which they alleged was defamatory. In breach of his
duty and out of curiosity, the statement was taken and read by a butler. The plaintiff claimed that this constituted a
publication of the libel for which the defendant was responsible. It was held that the statement was not published in law and
the plaintiff’s action failed.

Libraries, news vendors and bookshops are not liable for libel contained in their books if proved that his ignorance was not
due to any negligence on his own part and that he did not know and had no ground for supposing that the newspaper
contained libelous matter-vizetelly v mudie’s select library. The proprietors of a circulatory library circulated copies of a
book which, unknown to them, contained a libel on the plaintiff. In an action for libel brought against them, they failed to
show that it was not through their negligence that they did not know the book contained the libel when they circulated it. It
they were liable as publishers of the libel.

For slander there is a need to prove damage. However, there are certain exceptions

• Imputation of crime-hellwig v Mitchell. The defendant, manager of a hotel, in the presence of others, said to the
plaintiff "I cannot have you in here, you were on the premises last night with a crowd and you behaved yourself in a
disorderly manner and you had to be turned out." It was held that the plaintiff’s action for damages would not
succeed as the defendant's words did not impute the commission of a criminal offence punishable with
imprisonment in the first instance and, for this reason, they were not actionable without proof of special damage.
Webb v goaler-‘I know enough to put you in a goal’ is actionable per se

• Imputation of a loathesome disease-bloodworth v gray. The defendant had, on several occasions, suggested to
others that his son-in-law, the plaintiff, was suffering from venereal disease. The plaintiff brought an action for
defamation. It was held that, notwithstanding the plaintiff’s failure to prove special damage, he was entitled to
succeed as the defendants’ words were actionable per se. Taylor v perkins-thou art leprous knave was held to be
actionable.

• Slander in respect of an office, profession, trade or business-jones v jones

• Imputation of unchastity- kerr v kennedy plaintiff alleged that the defendant had uttered and published that she was
a lesbian. It was held to be an imputation of unchastity.

The damage should have been caused by the defamatory matter and resulted in material loss to the plaintiff

The test for causation is reasonable foreseeability-lynch v knight. The plaintiff brought an action to recover damages from
the defendant for slander uttered by him to her husband, imputing that she had almost been seduced by B before her
marriage and that die husband ought not to allow B to visit at his house. The ground of Special damage was that in
consequence of the (statement) slander, her husband sent her home to her parents, whereby she lost the consortium of her
husband. It was held that the cause of the complaint thus set forth would not sustain the action because the alleged ground
of special damage did not show a natural and reasonable consequence of the slander. It was said that if the imputation had
been that she had broken her matrimonial vows, i.e. committed adultery, then the husband's behaviour would have been
expected. But, as a reaction to the particular situation, no one would have foreseen the consequence as being the turning out
of the wife from the matrimonial home

The loss must be capable of being quantified in money-allsop v allsop

Under customary law slander is the only action under defamation and it is actionable per se-ampong v aboraa. the plaintiff
who was a candidate for the Akropong Stool was called "slave and beast" by the defendant. The plaintiff sued for damages
for damages for slander the, in an amendment to his statement of claim, pleaded to have the matter dealt with under
customary law. The court held that the epithet "slave" by itself was actionable under customary law without proof of special
damage, although whether it still carried its former sting.

Defenses

Absolute privilege

• Executive matters-communications relating to state matters are absolutely privileged-atitsogbe v harlley. The
defendant, as the Inspector-General of the Ghana Police Service and Vice-Chairman of the erstwhile National
Liberation Council and subsequently Vice-Chairman of the Presidential Commission published a National Liberation
Council document an abstract of which appeared in the Ghanaian Times and other information media. The plaintiff
alleged that the publication was defamatory of him and further that the defendant in causing it to be published was
actuated by malice. He therefore brought a libel action against the defendant after the latter had ceased to be either
the Inspector-General or the Vice-Chairman. At the material time when the document was published the National
Liberation Council was the supreme executive body in the country. The publication was therefore absolutely
privileged.

• Judicial proceedings-any statement made from the bar are absolutely privileged-scott v stansfield. a county court
judge, while sitting in court said to the plaintiff "You are a harpy preying on the vitals of the poor:" The words were
held to be absolutely privileged

• Legislative proceedings- all proceedings in parliament are absolutely privileged-per brown in church of scientology
v johnson-smith. The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the
defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying
on statements made in Parliament. It was held that what was said in parliamentary proceedings could not be
examined outside of parliament

• solicitor-client communications-more v weaver. In a discussion between a solicitor and client on whether a loan
should be called in the plaintiff was defamed. The statement was held to be absolutely privileged

Qualified privilege

• Word relating to matters of common interest-hunt v great northern railway. The defendants in a printed monthly
circular issued to their servants stated that they had dismissed the plaintiff for gross neglect of duty. The occasion
was privileged in the absence of malice as it clearly to the interest of the defendants that their servants should know
that gross conduct would be followed by dismissal.

• Words protecting the interest of the publisher-somerville v hawkins

• Words protecting the interest of another. There are two conditions. The recipient must be interested in the
communication and the maker must be under some obligation to communicate-watt v longdon. the foreign
manager of a company, wrote to a director, the defendant, and said that the managing director, the plaintiff, was "a
blackguard, a thief, a liar who lived and lives exclusively to satisfy his own passions and lust." The defendant showed
this letter to the plaintiffs wife and to the chairman of the board of directors of the company. The allegations
contained in the letter were unfounded but the defendant believed them to be true. The plaintiff sued for libel. It was
held that he was entitled to damages as the publication of the letter to his wife was not upon a privileged occasion
since the defendant did not have sufficient interest or duty, legal, moral or social, to make the communication.
Publication to the chairman of the board of directors was, however, held privileged.

• Public interest-wason v walter. the Times of which the defendant was proprietor, published an accurate report of a
debate in the House of Lords during which Earl Russell, Earl Derby and the Lord Chancellor spoke in disparaging terms
about a statement made of the Lord Chief Baron by the plaintiff in a petition to the house It was held that the action
 could not succeed, as a faithful newspaper report of a debate, in either house of Parliament, which contains matter
spoken in the: course of debate disparaging to the character of an individual, will not give that individual a right of
action against the newspaper proprietor.

• Misconduct of public official-harrison v bush. The plaintiff a county judge was charged with committing during an
election gross acts of violence for which the secretary of state caused an inquiry into the allegations to be made and
if proved that he be removed by the crown. The communication was privileged in respect of the interest and the duty
of the defendant and also in respect of a corresponding interest of the secretary of state.

Qualified privilege is destroyed by

• Malice-groom v crocker

• Excess of privilege. This is when material is circulated beyond people who should legitimately receive it- adam v
ward. The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus
bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their
secretary, Sir E Ward, the defendant, to write a letter to General Scobell, which was released to the press, vindicating
him and in turn containing defamatory statements about the plaintiff. It was held that the occasion was privileged
and there was no evidence of malice on the part of either the Council or defendant

Fair comment-comment on matters of public interest made honestly without malice

• Comment must be on a matter of public interest-boohene v abeyie. The plaintiff claimed damages for libel
published in the pioneer newspaper owned by the second defendants who were printers and publishers. The plaintiff
alleged that the article was to the effect that the plaintiff made certain dismissals for political reasons and that the
plaintiff though a graduate had no qualification in airway technique. There was no evidence of malice since the first
defendant had published what he honestly believed.

• Comment must be based on fact-kemsley v foot. The politician and journalist Michael Foot had printed an article in
Tribune, a Labour Party newspaper, condemning the London Evening Standard for unethically publishing a certain
story. Lord Kemsley, who owned other newspapers, maintained that the article's headline, "Lower than Kemsley",
impugned the standards of the Kemsley press. The defence of fair comment was allowed to stand because there was
sufficient subject-matter on which the comment could be based. The comment implied that kemsley was dishonest
and low but not as low as the press. The comment implied a certain conduct and commented on that conduct

• Comment must be an opinion-boohene v abeyie, slim v daily telegraph-lord denning. Fair comment is available to
an honest man expressing an honest opinion whether exaggerated, wrong or prejudiced.

Justification- publication is true must establish truth of all material elements-wakley v cooke.

Consent

Libel act 1843- this act allows the defendant to express remorse and offer amends. If plaintiff rejects it the defendant can
refer to it in his pleading and the court would take it into account in fixing damages.