AREA OF LAW PRINCIPLE/AUTHORITY

TRESPASS TO
THE PERSON
BATTERY

Defined as an act by the defendant that directly and intentionally

causes some physical contact with the claimant without the
claimant’s consent

ELEMENTS OF BATTERY
A. DIRECT ACT
The wrongful act must flow directly from the defendant. The act
must be the continuation of the defendant’s act
1. Scott v Shepherd
2. Gibbons v Pepper
3. Dodwell v Burford
4. Leame v Bray
5. Miller v Attorney General
6. Holmes v Mather
7. Cowell v Laming
NB: In Battery, the act must be a positive act. Omission or failure to
act would not amount battery
8. Innes v Wylie
9. Adu Kofi v Amanado

B. INTENTIONAL
The action of the defendant must be intentional and intend to
achieve the outcome of the act. Intention is an objective test.
1. Miller v Attorney General
2. Scott v Shepherd
3. Fagan v Metropolitan Police Commissioner
An action of trespass to person cannot lie in the absence of
intentionality or negligence
4. Stanley v Powell
It is the act and not the injury or damage sustained that must be
intentional
5. Wilson v Pringle

C. PHYSICAL CONTACT
There must be actual physical infliction of physical force
1. Murray v Minister of Defence
2. Collins v Wilcock
The gravity of the contact is insignificant. The slightest touch can
amount to battery
3. Wilson v Pringle
The slightest touch in anger may amount to battery
 4. Cole v Turner Holt CJ
Touching of one’s private part can also constitute battery
5. Guarro v US
The physical contact need not be bodily contact. Once the defendant
brings in some material into contact with the person of the claimant,
battery can lie.
6. Section 86 (2)(d)
7. Pursell v Horn (throwing water)
8. Hopper v Reeve (pulling a chair)
9. Fagan v Metropolitan Police Commissioner
10. Greene v Goddard
11. R v Cotesworth (spitting)
12. Nash v Sheen
13. Haystead v Chief Constable of Derbyshire
If the contact is intentional and direct, a mistaken belief that it is
lawful is irrelevant

D. NO CONSENT
The plaintiff must not have consented to the contact or the contact
should have been unwelcomed.
1. Wilson v Pringle
2. Dumbell v Roberts (trespass to even take a person’s fingerprint without consent)
3. Callis v Gunn
4. Re F v West Berkshire Health Authority Per Lord Goff
5. Campbell v Samuels
6. Nash v Sheen
7. Guarro v US
NB: we must make allowances for privileged contacts. This
doesn’t amount to battery
1. Coward v Baddeley
2. Wiffin v Kincard
Examples of privileged contacts are football, sitting by another
person in a bus etc.
However, one cannot consent to grievous bodily harm
3. Comfort & another v The Republic
4. Christopher v Bare
If the contact is intentional and direct, the mistaken belief that it is
lawful is irrelevant
5. Poland v Parr

ASSAULT

Any act of the defendant that directly and intentionally causes the
claimant reasonably to apprehend the imminent infliction of a
battery
 ELEMENTS OF ASSAULT
a. Direct act
b. Intentional act
The first two elements have already been discussed. Let’s focus on
the 3rd element.

C. REASONABLE APPREHENSION OF AN IMMINENT ATTACK OR

INFLICTION OF A BATTERY
It is not necessary for the claimant to prove that he actually
experienced fear. What must be proved is that it was reasonable for
the claimant to expect an imminent battery
1. Stephens v Myers
There must be the fear of actual physical contact
2. Stephens v Myers
3. Mortin v Shoppee
The defendant must have the means of carrying out the battery into
effect.
Thus, if it is clearly impossible for the defendant to carry out the
threat, assault will not lie.
4. Thomas v NUM
5. Read v Coker
6. Mortin v Shoppee

WORDS & ASSAULT

Generally, mere words cannot amount to an assault. It must be
accompanied by an intent to do violence followed by a threatening
act.
1. R v Mead
However, if the words in themselves are sufficient to put the
claimant in reasonable fear of an imminent attack, then assault has
been committed.
2. Khorasandjian v Bush
3. Janvier v Sweeney
4. R v Wilson
5. R v Ireland and Burstow
NB: however words in some cases can negate assault
6. Tuberville v Savage
Conditional threats, if the defendant has the ability to carry out the
threat can amount to assault.
7. Read v Coker
Knowledge that the defendant cannot carry out the battery can
sometimes negate assault
8. Blake v Barnard
9. Thomas v NUM
This means if the claimant reasonably believes in the threat or that
he reasonably believes that he is in fact in danger of violence, then
it can amount to assault
10. R v St. George
11. Osborne v Veitch
NB: The intervention of a 3rd party, per the circumstances of the
case can sometimes negate assault
1. Thomas v National Union of Mine Workers (NUM)

NB: In Assault and Battery, the quantum of damages recoverable

depends on proof of actual loss
1. Nsiah v Ampratwum

DEFENCES AGAINST ASSAULT

and BATTERY

A. C ONSENT
Generally, the defendant would have a complete defence, where the
claimant consents to what would otherwise amount to assault and
battery. Consent may be express or implied.
Participants in violent sports impliedly consent to risks ordinarily
incidental to such sports
1. Wright v Mclean
They do not however consent to excessive or deliberate unfair play
as such act will amount to battery
2. R v Billinghurst.
Consent is limited to the act for which permission is given and
therefore anything outside that amounts to battery
3. Nash v Sheen
In cases of children, consent by parents or guardians would be
enough.
Consent would be vitiated by fraud
4. R v Williams
However, fraud should relate to a real act by the defendant but not
where the act is merely relating to a collateral aspect of the
defendant’s act
5. Hegarty v Shine
Consent by a show of authority, threat of force or actual application
of force is not true consent
6. Freeman v Home Office
Generally, a person incapable of giving consent cannot give consent
e.g. a drunk person or an unconscious person.

Consent cannot also be given to grievous bodily harm

7. Christopher v Bare
8. Comfort v The Republic

B . SELF DEFENCE / D EFENCE OF ANOTHER PERSON

For a defendant to succeed under this defence he must show that;
he committed the trespass in order to defend himself/ another
person/ property; that in the circumstances, it was reasonable for
him to do so; that he used reasonable force.
1. Seaman v Cuppledick
2. Leward v Basely
The person being defended can be a total stranger
3. Handcock v Baker
That it was reasonable for him to do so
That he used reasonable force/ that the force was not
disproportionate to evil prevented
4. Lane v Holloway
5. Codd v Cabe
6. Cockroft v Smith
NB; however that revenge as self defence would fail
7. Barfoot v Reynolds
Self defence/ defence to property would succeed if the evil is
imminent and not when it has passed
8. Creswell v Sirl
9. Bird v Holdbrook.

c. Necessity
One may justify a trespass on the grounds of necessity

d. Lawful authority

FALSE IMPRISONMENT

An act of the defendant which directly and intentionally causes the

unlawful confinement of the claimant within an area delimited by
the defendant

ELEMENTS OF FALSE IMPRISONMENT

A . D IRECT ACT
Must be a positive act that flows from defendant such that an
omission to act not hold
1. Appiah v Mensah
2. Asante v The Republic
3. Heard v Weardale Steel co (the omission part)
4. Wright v Wilson

B. INTENTIONAL
Intention to do an act and achieve an outcome
1. Sayers v Harlow Urban council
2. Asante v The Republic

C. CONFINEMENT
The tort is committed only when the liberty of the claimant is
totally restrained such that there is no reasonable means of escape
or reroute.
1. Bird v Jones
2. Wright v Wilson
NB: the confinement need not be in a building alone.
The area must have a boundary and the boundary must be fixed or
delimited by the defendant.
If a person has a reasonable means of escape or reroute then an
action for false imprisonment cannot lie.
3. Bird v Jones
4. Wright v Wilson
NB: However, if the only means of escape is at risk of the
claimant’s life or limb or is unreasonable, then a tort of false
imprisonment would lie.
5. Burton v Davies
6. R v Macquarie
7. Sayers v Harlow Urban D.C.

Place and Area of confinement

The barriers created by the defendant need not be physical alone.
To constitute a detention, the defendant must detain the claimant in
some specific place.
Assertion of authority even in an open place is enough to satisfy
this requirement
1. Harnett v Bond
2. Watson v Marshall
3. Section 88 of Act 29
NB: A restraint on movement in the street even by a mere threat of
force which intimidates a person into compliance without laying
hands on him is false imprisonment.
This means that the claimant need not establish that they had been
touched by the defendant.
4. Warner v Riddiford
5. Grainger v Hill
NB: However, where there is no application of physical force, there
must be evidence of total submission by the claimant to the
defendant since if he refuses or evades going with the defendant,
then it can’t be said that there was total submission.

Period of Restraint
There is no fixed period of restraint required and therefore however
short the restraint, an action for false imprisonment may lie
provided the requirements are met
If the detention is for a short time, then nominal damages would be
awarded especially when no damage has been suffered
1. Re Waters and
An owner of a premise can impose reasonable conditions on how
his premise is used and which includes how persons exit the
premise.
2. Robinson v Balmain New Ferry co
 3. Herd v Weardale Steel co
However, since it would make no sense that anyone would enter
contract ousting their right to reasonable safe employment, the
courts again are of the notion that it would amount false
imprisonment if an owner keeps a customer locked up on the
premises because he refuses to pay.
4. Sunbolf v Alford
NB: A person who has been lawfully imprisoned cannot plead false
imprisonment to acts subsequent to his imprisonment.
However, an action for negligence might lie if a prisoner suffered
injury as a result of such confinement and if another prisoner or a
prison officer who acted in bad faith, locked up within the confines
of a prison, a person who was lawfully imprisoned this could
amount to false imprisonment
5. Hague v Deputy Governor of Parkhurst Prison

Knowledge of detention
knowledge is not a necessary ingredient of the tort
1. Meering v Graham-White Aviation co
The claimant’s knowledge of the detention is not relevant to the
existence of the cause of action but to the recoverability of damages
such that if he knew not of the detention and suffered no damage
then he is entitled to nominal damages
2. Murray v Ministry of Defence

An unlawful arrest constitutes false imprisonment.

An action for false imprisonment will lie against any person who
authorizes or directs the unlawful arrest or detention of the plaintiff
by a merely ministerial officer of the law
1. Onogen v. Leventis
2. Amadjei v Opoku Ware
3. Narwu v Armah
Mere information given to an officer, on which he acts at his own
discretion, is no ground of liability for false imprisonment
4. Nkrumah v Foli
5. Appiah v Boakye
To give false information to the police for the arrest of a person
knowing that is false would amount to being liable for an action of
false imprisonment.
6. Musa v Limo Wulana
However, a defendant is not liable in false imprisonment merely
because he makes a false imprisonment deliberately.
7. Tando v Adu

DEFENCES TO FALSE
 IMPRISONMENT

1. Lawful authority
2. necessity
3. consent

EXCEPTIONS TO THE TRESSPASS

RULE

Trespass is actionable per se. BUT

Trespass can be based on negligence but if you do so then the
negligence must be proved.
1. Letang v Cooper
There was no physical contact and injury was nervous shock
2. Rule in Wilkinson v Downton

THE RULE IN WILKINSON v

DOWNTON

Practical joke resulting in Injury. A deliberate or willful act or

misrepresentation calculated to cause harm and actually causing
harm
1. Janvier v Sweeney

MALICIOUS PROSECUTION

The tort of malicious prosecution occurs where the defendant

maliciously and without reasonable and probable cause initiates
judicial proceeding against the claimant which terminates in favor
of the claimant and which results in damage to his reputation,
person, or property.
 ELEMENTS OF MALICIOUS PROSECUTION
In order to succeed in a claim for malicious prosecution, the
claimant (the onus is on the claimant to prove the elements) must
prove each aspect of the tort, namely;

A. CLAIMANT HAS BEEN PROSECUTED BY THE DEFENDANT

The plaintiff must prove that he has been prosecuted by the
defendant.
This means proof either that the defendant himself conducted the
prosecution or procured, instigated, directed, ordered or was
actively instrumental in the prosecution being set in motion
1. Soadwah v. Obeng
2. Nana Akuamoah Boateng v. Yeboah
Being a prosecutor or actively involved in the prosecution could
arise where the defendant gave false information to the police and
made it clear that he is prepared to be a witness
3. Martin v Watson
4. Walters v Pacific Delivery Services
Where the facts of the alleged crime are exclusively within the
knowledge of the defendant and it is practically impossible for the
police to make independent judgement about whether or not to
proceed with prosecution, then the defendant can be said to have
been actively instrumental in the prosecution
5. Martin v Watson
If the defendant merely reported the matter to the police who do
their own investigations before charging the plaintiff, the defendant
is not liable
6. Soadwah v. Obeng
7. Danby v Beardsley (missing clippers)
Merely going with the police to point out the claimant does not
amount to being actively instrument in the prosecution
8. Nkrumah v Foli
NB: The prosecution which is the basis of a malicious prosecution
action must be a criminal prosecution

B. THE PROSECUTION TERMINATED IN CLAIMANTS FAVOUR

The prosecution must have been reasonably terminated in the
claimants favor.
And this would be satisfied where;
the claimant was acquitted of the charge in question, but convicted
of a lesser offence
1. Boaler v Holder
the claimant was convicted in a lower court, but his conviction was
quashed on appeal
2. Reynolds v Kennedy
the claimant was acquitted
3. Davies v Gell
Even if acquittal was on a technicality, such as a defect in the
indictment
4. Wicks v Fentham
the claimant proves that the defendant discontinued prosecution
5. Watkins v Lee
6. Nana Akuamoah Boateng v. Yeboah
Or withdrew the charge, even if without prejudice to recommence
7. Casey v Automobiles Renault
the Attorney-General entered a nolle prosequi staying further
proceedings on the indictment is termination in the plaintiffs favor,
although nolle prosequi carries with it liberty to prosecute on the
same facts and charge later
8. Nana Akuamoah Boateng v. Yeboah

C. THE PROSECUTION WAS UNDERTAKEN WITHOUT REASONABLE

AND PROBABLE CAUSE
The claimant has to prove that at the time he was prosecuted the
defendant had no reasonable cause for doing so.
1. Hicks v Faulkner (Hawking J)
2. Herniman v. Smith
3. Yeboah v Boateng (appeal)
4. Gibbs v Rea
Reasonable and probable cause depends on or has two elements
namely;
Objective test; whether a reasonable man, having knowledge of
facts which the defendant knew at the time he instituted the
prosecution, would have believed that the claimant was probably
guilty of the crime imputed
5. Delegal v Highley
Subjective test; whether the defendant did honestly believe the
claimant was guilty
6. Glinski v McIver
7. Abbott v Refuge Assurance Co. Ltd

D. THE DEFENDANT WAS LED BY MALICE

The claimant must also prove malice on the part of the defendant.
He must show that the criminal prosecution was led by ill will and a
motive other than bringing the claimant to justice
1. Wershof v Metropolitan Police Commander
Malice relates to the prosecutor's motive
2. Glinski v Mclver (Lord Devlin)
Prosecution of the plaintiff on any motive other than bringing him
to justice is malice
3. Turner v Ambler
4. Haddrick v Heslop
5. Stevens v Midland Counties Railway
NB: Note that malice is not the same as hatred or anger.
The fact that the defendant was actuated by personal spite against
the claimant will not make the prosecution malicious if the
defendant’s major motive was to see justice done
6. Brown v Hawkes

E. AS THE RESULT OF THE PROSECUTION , THE PLAINTIFF HAS

 SUFFERED DAMAGES
The claimant must also prove damages.
Damage may be in the form of; Damage to name (fame), Damage to
his person (where he could lose his life or liberty eg. where he is
imprisoned) or Damage to property if he is made to incur charges
and expenses for his defence
1. Saville v Robertson
2. Wiffen v Bailey
3. Berry v British Transport Commission (BTC)
4. Boateng v Yeboah

DEFENCES TO MALICIOUS
PROSECUTION

a. That the claimant was actually found guilty of the offence

1. Herniman v Smith
b. Merely gave information or lodged complaint to
police/prosecutor
2. Nkrumah v Foli
3. Danby v Beardsley
4. Soadwah v Obeng

TRESPASS TO Trespass to land is an unjustifiable interference with the possession

of land.
LAND NB: The tort is committed against possession and not ownership of
land.
Possession here means power to use the land and to exclude others,
i.e. occupation or physical control of the land and power to exclude
others.
ELEMENTS
A. D IRECT A CT
The injury caused must be direct
1. Pickering v Rudd
And not consequential. (An indirect or consequential interference
with land is nuisance)
2. Esso Petroleum co. v Southport co.
The act complained of must be a positive act and not an omission to
act.

B . PHYSICAL INTERFERENCE
The defendant must have physically interfered with the claimants
land
1. Lavender v Betts
2. Perera v Vandiyar
Physical interference does not necessarily mean the defendant must
be physically present on the land.
Where the defendant forces objects of any kind to come into contact
with the land of the claimant, the defendant may be liable for
trespass
3. Pickering v Rudd

C. INTENTIONAL ACT/ STATE OF MIND

The defendant must have intended to enter land, but need not have
intended to trespass. The act must be a voluntary act.
1. Conway v George Wimpey & co
Therefore, it is no defence to show that the defendant was unaware
that the land on to which he had entered was land that belonged to
someone else or that the defendant made an honest mistake of
entering the land of the claimant
2. Conway v George Wimpey & co
3. Basely v Clarkson
However, it is a defence to show that he had no intention of
entering the land or that his action was purely involuntary
4. Smith v Stone
NEGLIGENT TRESPASS TO THE LAND
Trespass to land can be committed negligently
1. League Against cruel sports ltd v Scott
2. River Wear Commissioners v Adamson

D. POSSESSION
At the time of the trespass, the claimant should have been in
possession of the land. Possession has been defined as being in
physical control of the land and having the power to exclude others
from the land
1. Nunekpeku v Ametepe

SUBJECT MATTER OF TRESPASS

The subject matter of trespass is land and everything attached to it.
The general rule is that he who owns the land is presumed to own
everything "up to the sky and down to the center of the earth."
Cujus est solum ejus est usque ad coelum et ad inferos”.
a. Trespass to the surface
Any kind of direct interference with the surface is trespass, e.g.,
digging, throwing stones is trespass to the surface
1. Harrison v Duke of Rutland
2. Hickman v Maisey
3. Ellis v Loftus Iron co (the horse kicking through the fence)

b. Trespass to the sub-soil

Trespass can also be committed against the subsoil
1. Cox v Mousley.
Entry below the surface at any depth constitutes trespass
2. Bulli Coal Mining v Osborne.
 c. Trespass to the air space
An invasion of air space above may be trespass
1. Corbett v Hill
2. Kelson v Imperial tobacco co
NB; it is not every intrusion into the claimant’s air space that will
give rise to an action in trespass.
It must be shown that the intrusion was at such a height that it
interfered with the ordinary use and enjoyment of the property and
structures erected on the property
3. Lord Bernstein of Leigh v Skyviews and General Ltd

Types of Trespass
a. Wrongful Entry
The commonest form of trespass consists of a personal entry on the
claimant’s land by the defendant.
For example, the slightest crossing of the boundary may constitute
trespass, eg. Putting a hand through a window
1. Entick v Carrington
2. Ellis v Loftus Iron Co
Trespass by wrongful entry may also take the form of abuse of
entry. For example, a person can use the highway for the purpose of
passage, i.e. travelling from one point to the other. Where the
highway is used for some purpose that is not reasonably incidental
to the purpose of passage, the user of the highway may commit the
tort of trespass against the person who is in possession of the
highway.
3. Hickman v Maisey
4. Harrison v Duke of Rutland

b. Remaining on Land
One may have right of entry at his initial entry, but he becomes a
trespasser when his right of entry ceases and he refuses to leave
immediately and/or remove his objects from the land when asked
by the owner.
If he refuses to leave, it will be deemed that he has committed the
tort of trespass from the moment of his refusal to leave
1. Konskier v Goodman
2. Minister of Health v Bellotti
3. Cowell v Rosehill Race court

c. Placing objects on the Land/ Continuing trespass

It is a trespass to place any chattel on the claimant’s land.
This form of trespass is called continuing trespass.
This is because the trespass continues as long as the object remains
on the land
1. Westripp v Baldock (placing ladders, planks and sand against plaintiff’s wall)
2. Arthur v Anker
3. Konskier v Goodman
 d. Trespass ab initio
Where the defendant enters upon land with the authority of the law
and later abuses that right he becomes a trespasser ab initio, that is,
from the moment he enters on the claimant’s land
1. Chic fashions ltd v Jones
2. Cinnamond v British Airport Authority
3. Jeffrey v Black
NB: The rule only applies where the subsequent abuse is a positive
wrongful act as opposed to an omission.
4. The Six Carpenters Case

e. Trespass to the Subsoil

Trespass can also be committed against the subsoil
1. Cox v Mousley
NB: Where the possession of the surface and the subsoil is in the
hands of different persons it is only the owner of the subsoil who
can maintain an action in trespass to the subsoil and it is only the
owner of the surface who can maintain an action in trespass to the
surface
Entry below the surface at any depth constitutes trespass
2. Bulli Coal Mining v Osborne

f. Trespass above and beneath the surface

The basic maxim is that Cujus est solum ejus est usque ad coelum
et ad inferos - meaning whoever owns or possesses the surface of
land also owns or possesses everything above it to the heavens and
everything below it to the center
1. Corbett v Hill
2. Kelson v Imperial tobacco co.
Thus according to the maxim, any invasion of the ground beneath
the surface, at however great a depth, and any invasion of the air
space above, at however great a height, will constitute a trespass to
the possessor of the surface

g. Trespass to airspace
An invasion of air space above may be trespass
1. Corbett v Hill
2. Kelson v Imperial tobacco co
NB; it is not every intrusion into the claimant’s air space that will
give rise to an action in trespass. It must be shown that the intrusion
was at such a height that it interfered with the ordinary use and
enjoyment of the property and structures erected on the property.
3. Lord Bernstein of Leigh v Skyviews and General Ltd
In the Bernstein case, it had to do with aircrafts flying overhead. In
Anchor Brewhouse Developments Ltd v Berkley House
(Docklands) Developments Ltd, a distinction was drawn between
an aircraft and a structure, which overhangs land.
It was held that a crane that swings over land is trespass.
Bernstein was confined to the specific issue of overflying aircraft,
so that in Anchor the claimant could obtain an injunction to prevent
the trespass of the boom of the crane into their air space despite the
high cost of complying with the injunction order
NB: In Ghana, actions involving the trespass by aircrafts is
regulated by the Ghana Civil Aviation Act, 2004(Act 678).
Section 29(1) of the Act provides that: An action does not lie in
respect of trespass or in respect of nuisance by reason only of (a)
the flight of an aircraft over a property at a height above the ground,
which, having regard to wind, weather and the circumstances of the
case is reasonable…

WHO CAN SUE IN TRESPASS TO LAND

Trespass to land is a wrong to possession, not ownership.
Therefore only a person who is entitled to immediate possession
can sue i.e. one who was in possession of the land at the time the
trespass was committed
1. Nunekpeku v Ametepe
Possession connotes occupation or physical control of land.
The degree of physical control necessary to constitute possession
may vary from case to case.
The type of conduct which indicates possession will vary with the
type of land.
In the case of a building, for example, possession may be evidenced
by occupation, or, if unoccupied, by having the key or means of
entry, or building a wall around the land or cultivating it for pasture
or even erecting pillars
2. Wuta Ofei v Danquah.
NB: Mere ownership without possession is not sufficient
NB: A landlord therefore cannot sue if the lease has not expired
because the tenant is the one in possession.
However, the landlord may sue if he can prove that there is damage
to his reversionary interest
3. Portland Management Ltd. v Harte
NB: The mere use or occupation without excessive possession is
also not sufficient
4. Allan v Liverpool Overseers
5. White v Bayley.
6. Hill v Tupper

Trespass by relation
A person who has right to immediate possession of land and enters
the land in exercise of that right is deemed to have been in
possession ever since the accrual of the right of entry.
That person can thus sue for trespass committed since the accrual of
her right of entry

Co-ownership
A tenant in common or joint tenant of land cannot sue his co-tenant
in trespass because each of the co-tenants is entitled to possession,
unless the defendant’s act amounts to the total exclusion or ouster
of the claimant or destructive waste of the joint property

DEFENCES
a. License
There is no trespass where there is express or implied consent
1. Hurst v Picture theatres ltd
2. Robson v Hallet.
It is only when the consent is exceeded or revoked that a trespass
can occur.

b. Justification by law
First, the police have powers to enter premises and search.
In Ghana, the power of the police to enter a premises to effect arrest
and searches without the consent of the owner or occupier of the
premises is provided for in Sections 4 and 5 of Act 30.
Secondly, there is a right to enter upon the claimant’s land in
pursuance of a public right of way e.g. footpath.
Thirdly, there is a right at common law to enter the claimant’s land,
for example, to abate a nuisance or the power of a landlord to enter
premises to disdain for rent

c. Necessity
It is a defence to show that it was necessary for the defendant to
enter upon the claimant’s land
1. Rigby v Chief Constable of Northampton

REMEDIES
a. Damages
The claimant may seek remedy in damages as of right, but where
the trespass is a trivial one, then damages will be nominal.
If the land is damaged, the measure is the loss in value of the land.
It is possible that the claimant may be able to recover aggravated or
exemplary damages where the case is an appropriate one for the
grant of such a remedy.

b. Injunction
This is a discretionary remedy; the court may award damages in lieu
of injunction.
An injunction is particularly useful where the trespass is continuing
or threatened

c. Re-Entry
A person entitled to possession may re-enter and use reasonable
force to eject a trespasser
1. Hemmings v Stoke Poges Golf Club

d. Self-Redress/ Self help

NB: There can be the remedy of self-help however this remedy is
only available where
 (i) the case was a simple one where legal proceeding
would have been inappropriate and
(ii) (ii) where urgent action was plainly necessary
1. Burton v Winters

e. Mesne Profits
An action will lie for the damage, which the claimant has suffered
as a result of being out of possession.
The claimant may sue for profits that the defendant has made from
his occupation and for damages for deterioration and costs of
obtaining possession. NB: The rent that accrues and has not been
paid is called mesne profits.
1. Inverugie Investments Ltd. v Hackett

WRONGFUL
INTERFERENCE
WITH
GOODS/TRESPASS TRESPASS TO GOODS/ CHATTEL
TO CHATTEL
Trespass to goods is also known in Latin as de bonis aspotartis.
When a person directly and intentionally or negligently interferes
with goods which are in the possession of the claimant then that act
can be trespass to goods.
This tort seeks to protect the claimant‘s interest in;
a. the retention of possession of his goods
b. the physical condition of his goods
c. protecting the chattels against intermeddling
These were all explained in Forson v Koens

ELEMENTS
a. Direct act
The interference must be direct.
There can be no trespass if the interference is indirect or
consequential
1. Hutchings v Maughan

b. State of mind of the defendant

Originally, trespass to chattels was regarded as a strict liability
offence and the defendant was responsible for all the direct
consequences of his act, whether he was negligent or not.
However, the current position of the law is that the act must be
either intentional or negligent
1. Fowler v Lanning
2. Schemmell v Pomeroy.
NB: there is no liability for an interference with goods that is
merely accidental or involuntary
3. National Coal Board v Evans and Co (Cardiff)
 4. Halaby v. Halaby and Others
5. Beals v Hayward

c. The claimant’s Possession

At the time of the unlawful interference, the claimant must be in
possession of the goods.
1. Ward v Macauley
Possession connotes both power of exercising physical control
(factum) and intention to exercise such control (animus) on his own
behalf.
2. Johnson v Diprose per Lord Esher
3. Forson v Koens
4. Hamps v Darby
5. Wilson v Baker
6. Wilson v Lombank
7. Peachey v Wing.
NB: Ownership is immaterial.

ACTS OF TRESPASS
Trespass to goods can be committed in various forms such as;
a. Taking goods out of the possession of another
1. Brewer v Dew
2. Heyden v Smith (cutting and taking trees away)
3. Forson v Koens

b. destroying or damaging
1. Marriage of Michaels

c. merely using goods

1. Penfolds Wines Pty Ltd. v Elliott

d. Wrongfully moving goods from one place to another

1. Kirk v Gregory
2. Fouldes v Willoughby
Even merely bringing one’s person into contact with the goods of
another was explained to amount to trespass in
3. Fouldes v Willoughby

Proof of Damage
Trespass to goods is also actionable per se thus the mere wrongful
moving or touching of a chattel without any harm being caused is
actionable
1. Kirk v Gregory
Asportation is not necessarily dispossession
2. Kirk v Gregory
3. Burroughes v Bayne

DAMAGES
A claimant can be awarded damages for goods he has rights over
but has been deprived of.
The damages awarded will be per the value of the goods.
Where the claimant has only a limited interest in the goods, he will
not be awarded damages per the full value of the goods but per the
value of the limited interest he has in the goods.
1. Roberts v Roberts per Burbury CJ.

CONVERSION

Conversion may be defined as an intentional dealing with goods

which is inconsistent with the possession or right to immediate
possession of another person.
The intentional conduct of one resulting in an interference with the
goods of another can be described as conversion.
NB: The tort of conversion protects the claimant’s interest in the
dominion and control of his goods.
It does not protect the claimant’s interest in the physical condition
of the goods.
NB: Conversion is therefore concerned with title to personal
property.

ELEMENTS
a. STATE OF MIND OF THE DEFENDANT
There can only be conversion if there is intentional conduct
resulting in an interference with the goods of the claimant
1. Ashby v Tolhurst.
To amount to conversion the intentional act must be such that the
defendant had the intent to deal with the claimant’s goods by
exercising dominion over them on his behalf or on behalf of any
other person other than the claimant although he may not know of
or intend to challenge the property or possession of the claimant.
NB: It is therefore not a defence for a defendant even if he acted in
good faith and mistaken the goods of the claimant to be his or
another’s
2. Caxton Publishing Co Ltd v Sutherland Publishing Co
Ltd.

b. SUBJECT MATTER OF CONVERSION

Any good can be a subject matter for conversion.
However the goods should be tangible to qualify as a subject matter
to recover else there can be no right to recover that property
1. Doodeward v Spence.
Some Intangible property may be converted such as;
Cheques
 2. Lloyds Banks v Chartered Bank of India
3. Australia and China
Shares
4. Gorman v H W Hodgetts & Co
5. R v Hansford
Insurance policies
6. Wills v Wells
7. Watson v McClean

At Common Law, money as currency could not be the subject

matter of an action in conversion; however, money capable of being
identified may be converted such as
Bank notes
8. Burn v Morris
Coins
9. Orton v Butler
Bag of money
10. Taylor v Plumer.

c. POSSESSION
In order to maintain an action, the claimant must have possession or
the right to immediate possession of the goods at the time of the
conversion
1. Gordon v Harper
2. Farrant v Thompson
3. Penfolds Wines Pty Ltd v Elliot

ACTS OF CONVERSION
The following types of acts will amount to conversion
 Taking goods or dispossession
To take goods out of possession of another, without lawful
justification, may be to convert them
1. Fouldes v Willoughby
2. Kabbara Brothers Transport v Anin and Others.
It is conversion to seize goods under legal process without
justification
3. Cuff v Broadlands Finance Ltd
4. GCB V Tabury
Also, forcing someone to hand over goods under duress is
conversion by taking
5. Grainger v Hill.

 Conversion by detaining
A refusal to surrender goods upon lawful and reasonable demand is
conversion
1. Eason v Newman
The gist is that in refusing to hand over the claimant’s goods, the
defendant has shown an intention to keep it defiance of the
claimant’s right
2. Clayton v Le Roy
Therefore detention constitutes conversion only when it is adverse
to the person claiming possession, so that the person claiming the
goods must show an intention to keep them in defiance of the
claimant as discussed in
3. Marshall v Dibble
4. Helson v McKenzies

 Conversion by using
If defendant uses claimant goods and redelivers it to him, its
conversion.
It is irrelevant if he used the goods for a short period because during
this time the interference with possession is complete
1. Aitken Agencies Ltd v Richardson
2. Schemmell v Pomeroy

 Destroying or altering
To destroy goods is to convert them, if done intentionally but if
done negligently give rise to liability in negligence and not
conversion
1. Richardson v Atkinson (partially substituting liquor for water in a vessel)
It is also conversion to alter the identity of a chattel
2. Hollins v Fowler

 Goods lost or destroyed

Intentional destruction of goods in possession of another will be
conversion however, mere careless or negligent loss of goods in the
possession of another will not be conversion because there is no
voluntary act
1. Howard v Harris

 Conversion by receiving
A buyer who receives goods to which the seller has no title is liable
in conversion to the true owner.
The basis of liability in such cases is that the receiver, however
innocent he may have been, has been a party to the denial of the
claimant’s title and to interference with his right to the possession
of goods.
1. Fine Art society v Union Bank of London
NB: However, if a defendant in good faith receives goods as a
carrier or warehouseman then he does not commit conversion.
The reason is that the purpose for the transfer to the carrier or
warehouseman is not to pass any property or interest in the goods.
2. Hollings v Fowler
3. Sheridan v New Quay Co.

Exceptions
There are exceptions to the principle that receiving is conversion.
They include the following;
a. Where the goods are sold in market overt (open market)
according to the customs of the market, the buyer will
 obtain a good title to the goods if the seller did not have a
good title provided he acted in good faith and did not have
notice of any defect in the seller‘s title

b. Where a merchantable agent, having authority in the

ordinary course of his business to dispose of goods, is in
possession of such goods with the consent of the owner,
any disposition of them made by him in the course of the
business of the agent to a bona fide purchaser for value as if
he had the authority of the owner
1. Section 30 of the Sale of Goods Act

c. Where a seller or pledgor with a voidable title sells the

goods before the title is voided, the purchaser will get a
good title, which cannot later be rescinded, provided he
bought in good faith and without notice of the seller’s
defect in title. Because at the time of the sale the seller had
a title to the goods, albeit a voidable one, he can pass a
good title. The purchaser then commits no conversion
1. Section 29 of the sale of goods Act.

Who can sue?

NB: In order to maintain an action the claimant must have
possession or the right to immediate possession of the goods at the
time of the conversion
1. Gordon v Harper
2. Farrant v Thompson
3. Penfolds Wines Pty Ltd v Elliot

Possession or right to possession may be also acquired as follows;

a. Bailment
Bailment is where a person takes possession of goods belonging to
another with same’s consent. The owner is the bailor and the one
taking possession of the good with consent would be the bailee. A
bailee of goods has lawful possession and so can maintain an action
in conversion against any person who interferes with that
possession
1. The Winkfield

b. Lien and Pledge

A lien is a right to retain a possession of a chattel until a debt is
paid. The holder of the lien may sue in conversion and this right to
sue even extends to the owner of the good should he take back the
good when he has not settled the debt
1. Lord v Price
A pledge unlike the lien confers a further power to sell the good
should the owner default in his payment of the debt.

c. Sale
Where goods were sold on credit, the buyer could ordinarily sue the
seller in conversion if the seller wrongfully sold the goods to a third
party. But if the seller exercised his right of stoppage in transitu
upon the buyer becoming insolvent, the buyer could no longer sue
1. Bloxam v Sanders

d. Licensee
A licensee may be able to sue in conversion
1. Northam v Bowden

e. Finder
The finder of a good has the right of a finder of a chattel against
later possessors unsupported by an earlier title. Though neither
parties are the true owner of the chattel, a finder would have a
stronger possessory title, which he could protect by the action in
trover
1. Amory v Delamirie
When one owns land, he is prima facie in possession of everything
on it. This can be rebutted but until it is, the law would assume the
possessor of the land is in possession of the chattel found on it.
2. South Staffordshire water co v Sharman
3. Ahiable v Dosu
An occupier of premises has rights superior to those of the finder
over goods upon or in, but attached to, the premises only if, before
finding, the occupier has manifested an intention to exercise control
over the building and the things that may be upon it or in it.
4. Parker v British Airways Board
5. Hannah v Peel

DAMAGES
The general rule is that the claimant in an action for conversion is
entitled to recover the full value of the goods converted.
Where the claimant has a limited interest in the goods he cannot
recover the full value.
The measure of damages will depend upon what the claimant’s title
to sue is based on.
If the act of conversion relied on by the claimant is a sale, and by
the time when the claimant knows or ought to know of the sale, the
value has increased, the claimant can recover that higher value
1. Chubb Cash Ltd v John Crilley & Son.
If the claimant incurs pecuniary loss as a direct consequence of the
conversion he may recover this as special damage in addition to the
market value of the goods, provided this damage is not too remote
2. Roberts v Roberts
Where the evidence discloses not only conversion but a cynical
disregard for the claimant‘s rights, exemplary damages may be
awarded
3. The Mediana
4. Rooks v Bernard.
If the defendant returns the goods before the trial, the court may
reduce the damages awarded
 5. Fisher v Prince
6. Solloway v McLaughing
An action for damages for conversion can always be stayed if the
defendant offers to hand over the property in dispute
7. USA v Dollfus Mieg et Compagnie
8. Hiort v The London Northwestern Railway Co

DETINUE

It is one of the oldest available remedies at Common Law for

wrongful dispossession of goods. It has since been abolished by the
section 2(1) of the Torts (Interference with Goods) Act, 1977.
The tort could be committed in 2 ways;
a. By wrongfully refusing to deliver goods to the person
entitled to them
1. Alicia Hosier Ltd v Brown Shipley and Co Ltd

b. By a Bailee negligently losing the goods in breach of his

duty under the bailment
1. Goodman v Boycott
2. Houghland v R R Law (Luxury Coaches) Ltd

The main object of detinue is that it enables a claimant to sue for

specific restitution, i.e. for his goods to be restored to him.
Thus if the claimant wishes to recover the goods in specia he must
sue in detinue, not conversion.
However, the court‘s power to order specific restitution is
discretionary and ought not to be exercised when the chattel is an
ordinary article of commerce, and of no special value or interest,
and not alleged to be of any special value to the claimant, and
where damages would fully compensate
1. Whitely v Hill

In an action for detinue, the claimant must prove that;

a. He has an immediate right to possession of the goods
b. The defendant, who is in actual possession of the goods,
has failed or refused to deliver up after a proper demand
had been made for their return. It is this feature that
distinguishes the tort of detinue from that of conversion.
The defendant will be liable where, prior to the demand for the
return of the goods by the claimant, the goods have been lost or
destroyed, whether by accident or by negligence of the defendant
unless he proves that the goods were not lost or destroyed through
his negligence
1. Coldfman v Hill
 NB: Refusal to surrender on demand is the essence of detinue and
judgment may be made by the court for;
a. the value of the goods as assessed and damages for their
return
b. the return of the goods and damages for their return

The value of the goods is assessed as at the date of the trial not as at
the date of possession. This is because the tort of detinue is not
complete until the defendant fails to deliver up the chattels at the
time of the judgment
1. General and Finance Facilities Ltd v Cooks Cars
(Romford) Ltd
2. Egan v State Transport Authority.
If the value of the goods has increased between the date of the
refusal to surrender and the date of judgment, the action should be
brought in detinue, but if there has been a decrease in value during
the period, the claimant‘s action lies in conversion.
3. Rosenthal v Alderton and Sons Ltd
Where the defendant has improved the article by his work or by
spending money on it the claimant cannot claim the increased value.
In such a case the court would normally order restitution on the
claimant paying the assessed value of the improvements effected by
the defendant.

Negligence can be defined in 2 ways;

NEGLIGENCE a. It may signify the attitude of mind of a party committing a
(NEGLIGENT INVASIONS tort, that is, mental inadvertence or carelessness.
OF INTERESTS IN THE 1. Letang v Cooper
PERSON, PROPERTY
2. Fowler v Lanning
INTERESTS AND
ECONOMIC INTERESTS)
b. Negligence may be an independent tort consisting of the
breach of a specific duty, recognized by law and owed to
the claimant which is our focus of discussion here.
The definition of Negligence was formulated in Blyth v
Birmingham Waterworks Co where the notion of the reasonable
man first appears; “Negligence is the omission to do something
which a reasonable man upon those considerations which
ordinarily regulate the conduct of human affairs, would do, or
doing something which a prudent and reasonable man‘ would not
do”.

The tort of Negligence means more than heedless or careless

conduct, whether in omission or commission: it properly connotes
the complex concept of duty, breach, and damage thereby suffered
by the person to whom the duty was owing.
1. Lochgelly Iron & Coal Co v M’Mullan Ltd per Lord
Wright
2. Allhasan Kotokoli v Moro Hausa per Edusei J

NB: Negligence is Not actionable per se and thus the need to prove
actual damage for the tort to be actionable. It also lies for
consequential and indirect injuries.

ELEMENTS OF NEGLIGENCE
The tort of negligence is composed of several elements. The
claimant must prove that the defendant;
1. Owed him a duty of care (to take reasonable care to protect
him from the kind of harm suffered) at the time of the
alleged injurious interaction
2. Was in breach of that duty
3. The breach of that duty led or caused the claimant’s
injury or damage
NB: Let’s take note that for an action on negligence to succeed, all
these elements must be present. We thus take the elements in
seriatim.

DUTY OF CARE

The first attempt to formulate a general conception of relations

giving rise to a duty of care was made in Heaven v Pender by Brett
MR. He stated that “Whenever one person is by circumstances placed in such a
position with regard to another that everyone of ordinary sense who did think would at once
recognise that, if he did not use ordinary care and skill in his own conduct with regard to
those circumstances, he would cause danger of injury to the person or property of the other,
a duty arises to use ordinary care and skill to avoid such danger”
His statement was to the effect that a duty is owed to anyone who
might reasonably suffer by one’s actions if ordinary skill and care
isn’t taken.
1. Heaven v Pender
This was qualified in Derry v Peek where it was said that a duty of
care arises if there was such proximity between the persons or
properties of the parties that a want/ absence of care might occasion
damage by one to another
2. Derry v Peek
The next opportunity to formulate the acceptable general criterion
arose in the great case of Donoghue v Stevenson where Lord Atkin
in dictum espoused certain principles in law as relating to a duty of
care owed to the claimant based on the proximity and reasonable
foreseeability principles.

 THE NARROW PRINCIPLE- UNDER MANUFACTURER’S OR

PRODUCT LIABILITY
In Donoghue v Stevenson Lord Atkin explained “A manufacturer
of products which he sells in such a form as to show that he intends
them to reach the ultimate consumer in the form in which they left
him with no reasonable possibility of intermediate examination and
with the knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in an injury to
the consumers life or property owes a duty to the consumer to take
that reasonable care”.
A duty is thus imposed on manufacturers in respect of the
production of certain types of goods, i.e. those which could not be
inspected before consumption or use.
This principle is known as the narrow rule and subsequent cases
have applied and extended it in a variety of ways.
Manufacturers has been extended to include retailers, repairers of
goods and suppliers of drinking water and even assemblers etc.
Products‘ has been held to include not just food and drink but cars,
houses, hair-dye and underwear or anything in use or consumed.
The ultimate consumer‘ has been extended to cover a bystander
injured by a defective product.
1. Aboagye v KBL
2. Grant v KBL
3. Overseas Breweries ltd v Acheampong
4. Grant v Australian Knitting company

 NEIGHBOR PRINCIPLE
Lord Atkin again in Donoghue v Stevenson explained “…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…”
1. Home Office v Dorset Yacht Co per Lord Reid

 ARE THE CATEGORIES OF DUTY OF CARE CLOSED?

Lord McMillan in Donoghue v Stevenson also explains that No, the
categories are never closed.
For example, New cases involving circumstances (third parties) not
catered for by the neighbour principle began to emerge and also
people we did not contemplate would be affected by our actions.
This means, at least, as Asquith LJ said in Candler v Crane
Christmas & Co that in accordance with changing social needs and
standards new classes of persons legally bound or entitled to the
exercise of care may from time to time emerge. New duty situations
are being continually recognized.
1. Carmarthenshire County Council v Lewis
2. Barnes v Hampshire County Council
3. Buckland v Guildford Gas Light and Coke Co
4. Levine v Morris

THE SCOPE OF DUTY

For these new cases, the Judges tried to use different yardsticks; one
is the Anns Test, but this has been rolled away
 a. Anns Test (Proximity)
In Anns v Merton LBC, Lord Wilberforce proposed a two-stage test
for duty;
 First, one has to ask whether, as between the alleged
wrongdoer and the person who suffered damage there is a
sufficient relationship of proximity or neighborhood such
that, the harm caused to the claimant was foreseeable and
such showing the existence of a duty.
 If yes, was there any valid policy reason to deny the
existence of a duty to the claimant
As time went on, the Judges begun to retreat from the Anns test.
Lord Keith for example demanded that the claimant identify policy
grounds why a duty should arise and why the defendant should be
made responsible for his welfare
1. Governors of the Peabody Donation Fund v Sir Lindsay
Parkinson & Co Ltd
2. Yuen Kun-yen v AG of Hong Kong
It became clear beyond doubt that foreseeability of harm alone is
not enough to create a duty of care
3. Hill v Chief Constable of West Yorkshire

B . C APARO TEST (A DDED FORESEEABILITY )

The modern approach to duty of care elicited from the Caparo
Industries plc v Dickman case states that for duty of care to be
satisfied
 the claimant must be foreseeable
 there must be a relationship of proximity between the
claimant and the defendant
 it must be fair, just and reasonable in the circumstances for
a duty of care to be imposed on the defendant
Each limb of this test requires closer consideration;

I. THE CLAIMANT MUST BE FORESEEABLE

a. The defendant is liable when it is established that he should
have reasonably foreseen the claimant as an individual (or
member of class) to be affected by his conduct
1. Haley v London Electricity Board
2. Bourhill v Young

b. Injury that occurred must be foreseeable

1. Palsgraf v Long Island Railroad
2. Hay (Bourhill) v Young (the pregnant woman)
3. Roe v Minister of Health

II. PROXIMITY
In many instances proximity and reasonable foreseeability may be
thought of as informing each other.
Proximity, we might therefore surmise, is concerned with the
factual relationship between the parties.
Logically, it is concerned with the existence of that relationship
prior to the failure in care.
It is because of the presence of proximity that a duty is recognizable
and, where recognized, gives rise to an obligation of care
1. Goodwill v British Pregnancy Advisory service
Thus, where there is no relationship between the parties, an
omission would not hold the defendant liable for a duty of care.
A Bad Samaritan, who neglects even to summon aid to the victims
of a road accident and prioritizes getting to work on time, is not
liable for his omission. The law imposes no duty to rescue.
2. Stovin v Wise
Also, on the issue of Failure to control or guard against the acts of
third parties, the general rule is that individuals are not subject to
any duty to protect their neighbors from others tortious conduct
outside the circumstances in which the principles of vicarious
liability operate. And this is so even if the loss or injury in question
is readily foreseeable and preventable
3. Weld-Blundell v Stephens
4. Smith v Leurs
5. Glaister v Appelby-in-Westmorland Town Council

III. FAIR, JUST AND EQUITABLE

Considerations of fairness usually based on public policy arise in
cases involving professional negligence and the work of public
authorities or cases involving pure economic loss and psychiatric
harm/nervous shock, rescuers.
Fair and just operates as a sword as well as a shield, to impute
liability and to deny liability. Or it operates in the negative and the
positive.
In the negative, just like in the Ann’s Test, policy considerations
could be the basis why a duty of care would not be imputed or limit
the circumstances in which a duty of care would be imposed on the
defendant.
1. Marc Rich & co AG v. Bishop Rock Marine Co ltd
2. Turner v Ashton (the thieves)
3. X v Bedfordshire County Council,
4. Elguzouli-Daf v Metropolitan Police Commissioner.
On the positive scale, it has become clear that considerations of
fairness, justice, and reasonableness can also be employed to
ground the imposition of a duty of care; either in circumstances in
which no such duty has previously existed, or in circumstances
where a duty has previously been denied.
1. Stovin v Wise
2. White v Jones (the 2 daughters against the solicitor)
3. Arthur JS Hall & Co v Simons
 BREACH OF DUTY

The question here is whether the defendant has measured up to the

standard expected of him or her in the circumstances.
The court does this by asking the following questions
 Whether risk of harm to the claimant was reasonably
foreseeable by the hypothetical person in the position of the
defendant
1. The Wagon Mound (no. 2)

 What is the appropriate standard of conduct that was

applicable to the interaction between the claimant and the
defendant. An objective test is applied. The test is
objective in the sense that it is a generalized standard, made
to suit the hypothetical reasonable person rather than the
actual defendant and it is an external standard, in that it
focuses upon external acts and omissions (rather than upon
any state of mind). what would a man of ordinary prudence,
a man using ordinary care and skill or a hypothetical man
do in the circumstances that the defendant found himself?
1. Glasgow Corpn v Muir
2. Bolton v Stone (the cricket case)

 Whether the defendant fell below the standard of conduct

expected by the law
1. Paris v Stepney Borough council (the one-eyed man)

If the defendant causes loss or injury to the claimant, but is able to

show that he acted in a way that a reasonable person would have
acted, no liability will attach
1. Al-Sam v Atkins

FACTORS RELEVANT TO ESTABLISHING THE REQUIRED STANDARD FACTORS

EXTRANEOUS TO THE DEFENDANT
NB: I have learnt from Dennis’ class that these factors apply when
we are using the neighbor principle or the one with new cases (3rd
parties) where professionals are not involved!

a. The likelihood of harm

The courts look at the fact that the defendant should have
anticipated the possibility of harm occurring when he engaged in a
particular conduct. (activity that involves high risk). The more
likely that a risk of harm will manifest itself, the greater the need
for precaution to be taken
1. Northwestern Utilities Ltd v London Guarantee and
Accident Co Ltd
The more remote the likelihood of the event occurring to cause
harm to the claimant, the more the court would hold that the
defendant not be found liable since they could not have anticipated
the occurrence of such a harm.
2. Bolton v Stone
3. Hilder v Associated Portland Cement Manufacturers Ltd

b. The potential magnitude/seriousness of harm

The gravity or potential gravity of the harm is determined from the
categories of persons harmed. For example, are children and the
physically challenged.
1. Paris v Stepney Borough Council (the one eyed man)
2. Haley v London Electricity Board (the blind man)
3. Yachuk v Oliver Blais (selling petrol to a child)

c. Public/social utility of the defendant’s conduct

In setting the standard of care, the courts will also take into account
any relevant social utility associated with the defendant’s conduct.
This means the court would look at how useful to society is the
activity defendant is engaged in. (look at the ends to be served by
the defendants conduct). Is it important enough to society so as to
justify the assumption of abnormal risk that led to injury to the
claimant?
1. Daborn v Bath Tramways Motor Co Ltd (the left handed ambulance)
2. Watt v Hertfordshire (the firemen carrying the heavy jack)
3. Sidaway v Bethlehem Royal Hospital
4. Rigby v Chief Constable of Northamptonshire

d. Relative Cost of avoiding the harm

It is relevant to consider how extensive and costly the measures
necessary to eliminate the risk would be. In essence there is a
balancing of costs: the cost of averting a danger measured against
the cost of the danger transpiring
1. Latimer v A.E.C.
2. the Wagon Mound (no. 2) (the court said it would have cost nothing to avoid harm)
Usually avails only public authorities
3. Knight v Home Office
In the case of a private individual or enterprise there comes a point
where, if the defendant lacks the resources to minimize a significant
risk of injury to others, he must cease to engage in the relevant
activity
4. Latimer v A.E.C.

e. Emergencies
Frequently, a defendant may act in an emergency, with little time
for reflective decision-making, in a manner that falls below the
standard of care normally expected of him
1. Parkinson v Liverpool Corporation
It is equally the case that he may act somewhat incautiously in an
emergency with a view to assisting another
2. Watt v Hertfordshire County Council
In either case, the courts will fix the appropriate standard of care
mindful of the circumstances

f. Hurley burley of life situations

The tort of negligence does not demand perfection. It does not
require that those to whom a duty of care is owed should be
safeguarded against every conceivable risk.
1. Carmarthenshire County Council v Lewis
Courts should be slow to characterize incidents in family life as
negligence given the rough and tumble of home life
2. Sturges v Kingston-upon-Thames Borough Council
The courts also make allowances for the exigencies of everyday life
and common sense. The rationale being that the courts do not want
to stifle initiative.
3. Porter v Barking Dagenham Borough

PROFESSIONAL NEGLIGENCE
Whether the defendant is a plumber or an architect or a consultant,
surgeon, the primary question is whether in all the circumstances
the defendant acted with the skill and competence to be expected
from a person undertaking his particular activity and professing
his specific skill.
The standard of care imposed will reflect the level of skill and
expertise that the professional holds himself out as having, or which
it is otherwise reasonable to expect in the circumstances
1. Chaudhry v Prabhakar.
What is reasonably expected would be that the defendant must
exhibit the degree of skill which a member of the public would
expect from a person in his or her position.
The law will presume that the professional person will have
sufficient time and resources properly to provide the service
requested.
The reasonable man is the reasonable plumber/ architect/ doctor
who are expected to have a certain knowledge that all doctors etc
are credited with
2. Whitehouse v Jordan
It would be irrelevant that they were inexperienced, or doing a job
which should have been done by a consultant, or just grossly
overworked.
3. Wilshire v Essex Area Health Authority

THE TEST OF PROFESSIONAL NEGLIGENCE

The standard of the ordinary skilled man exercising or professing to
have that special skill. If a surgeon fails to measure up to that
standard in any respect, he has been negligent
1. Whitehouse v Jordan

To determine the standard demanded in a particular job, the

following are adhered to;
a. Expert evidence of proper practice must be called.
 Where practice is disputed, conformity with a
responsible body of opinion will suffice
1. Bolam v Friern Hospital Management Committee
2. Edward Wong Finance Co Ltd v Johnson
To constitute evidence of proper, non-negligent practice, expert
opinion must be shown to be reasonable and responsible
3. Bolitho v City & Hackney Health Authority per Lord
Browne-Wilkinson
The court has to be satisfied that the exponents of the body of
opinion relied on can demonstrate that such opinion has a logical
basis
4. Maynard v West Midlands Regional Health
Authority
b. The court however is the final arbiter of what
constitutes professional negligence and would not
accept unrealistic standards of skill and knowledge.
Care must be taken to relate what is expected of the
professional to the expertise he claims to hold, and not
to demand unrealistic standards of skill and knowledge.
1. Luxmore-May v Messenger May-Baverstock
2. Bolitho v City & Hackney Health Authority per Lord
Browne-Wilkinson

NB: In situations where the defendant holds himself as possessing a

certain skill (and he does not), the standard would be that of a
reasonable man holding that skill.
1. Wells v Cooper
Also if you know that someone does not have the skill and yet you
seek his expertise, then you cannot hold him liable when he
performs below expectation.

ONUS OF PROOF
In an action of negligence against the defendant, the onus of
proving negligence is on the claimant.
He would have to prove that;
1. The defendant was negligent
2. That his negligence resulted in the claimant’s loss or injury.
Should the evidence be evenly balanced so that the accident might
have been the result of lack of care or competence, but might just as
easily have occurred without carelessness, the claimant fails for he
will not have established negligence to the required standard of
proof
3. Ashcroft v Mersey Regional Health Authority
In many cases of alleged negligence, the claimant knows only that
he has been injured and not how he came about to be injured.
In a number of such cases, however, the claimant may be able to
invoke the principle of res ipsa loquitur.

BREACH OF DUTY IN RES IPSA LOQUITUR SCENARIOS

The phrase res ipsa loquitur means the thing speaks for itself.
This maxim is used where breach of duty cannot be established,
where there is absence of explanation but the thing causing harm is
shown to be under the management of the defendant or his servants,
then the court will be prepared to infer that the defendant was
negligent without hearing detailed evidence from the claimant as to
what the defendant did or did not do.
1. Scott v London and St. Katherine’s Docks Co

ELEMENTS OF RES IPSA LOQUITAR

Megaw LJ In Lloyde v West Midlands Gas Board, explained that
the doctrine would apply in the assessment of the effect of evidence
in certain circumstances;
NB: The three separate requirements must be satisfied.

a. Absence of explanation
It is not possible for him to prove precisely what was the relevant
act or omission which set in train the events leading to the accident.
This limb merely means that if the court finds on the evidence
adduced how and why the occurrence took place, then there is no
room for inference.
1. Barkway v South Wales transport co ltd
Res ipsa loquitur is only available where there is no explanation for
the accident.
2. Asafo v Catholic Hospital of Apam
3. Hasnem Enterprises Ltd. v. Electricity Corporation of
Ghana
4. Ward v Tesco Stores Ltd

b. The harm must be of such a kind that it does not

ordinarily happen if the proper care is taken
The harm must be one that negligence can be inferred and would
have not occurred if the defendant had taken proper care.
1. Scott v London and St. Katherine’s Docks Co
2. Ward v Tesco Stores Ltd

c. The instrumentality causing the accident must be within

the exclusive control of the defendant
If the defendant is not in control, res ipsa loquitur does not apply.
The defendant must be in control of the instrument causing the
damage
1. Turner v Mansfield Corpn
2. McGowan v Stott
3. Gee v Metropolitan Rly
4. Easson v London and North Eastern Rly Co

In a situation where one of two or more persons is in control, if the

instrumentality is in the control of one of several employees of the
same employer, and the claimant cannot point to the particular
employee who is in control, the rule may still be invoked so as to
make the employer vicariously liable
5. Cassidy v Ministry of Health
 6. Morris v Winsbury-White
The court has extended the doctrine such that when the defendant’s
duty is so extensive that he is answerable for the negligence of his
independent contractor, and an accident occurs while the
independent contractor is performing the work delegated to him, the
claimant can invoke res ipsa loquitur against both the defendant and
his independent contractor.
7. Walsh v Holst & co ltd

EFFECTS OF RES IPSA LOQUITAR

If in the circumstances, res ipsa loquitur applies, its effect is to
make it relevant to infer negligence from the facts of the accident.
This simply means that there is in law evidence on which the judge
may properly find for the claimant.
The distinctive function of the rule is to permit an inference of
negligence from proof of the injury and the physical instrumentality
causing it, even though there is no proof of the facts identifying the
human agency responsible
1. McGowan v Scott
NB: It is clear, then, that the effect of res ipsa loquitur is to afford
prima facie evidence of negligence.
Once res ipsa loquitur has been successfully invoked to raise an
inference of negligence against the defendant, if the defendant fails
to adduce any countervailing evidence, the judge will be entitled to
find for the claimant.
NB: The burden of proof does not shift to the defendant, but rather
the principle is still in operation unless the defendant can adduce
evidence to show that that he wasn’t negligent.
NB: It was said that if the defendant successfully negatives any of
the conditions required for res ipsa loquitur, the claimant must
prove, by affirmative evidence, that it was the defendant’s
carelessness that caused the damage.
It means that the application of the maxim will not shift the burden
of proof, which will remain on the claimant throughout, but it will
allow the court to draw an inference of negligence.
2. Ng Chun Pui v Lee Chuen Tat

DAMAGE

Let us remind ourselves that negligence is an action on the case tort

and thus not actionable per se.
For an action in negligence to hold, the claimant needs to prove
some damage suffered.
The damage suffered must have ensued as a result of a breach of a
duty of care owed to the claimant by the defendant.
GENERAL GUIDELINES ON WHETHER THE DAMAGE WAS ATTRIBUTABLE TO
THE DEFENDANT
A. FORESEEABLE
The damage or injury should be foreseeable at the time of the
defendant’s conduct.
This does not apply only to the kind of injury but also to the extent
of the injury.

B . PUBLIC POLICY
Public policy is used to stop the floodgates otherwise there would
be no end to claims
1. Weller v Foot & Mouth Disease Institute

KINDS OF INJURY

I. PHYSICAL INJURY OR DAMAGE

Well according to her slides, this type of damage is straight forward
and easily proved.
Here, the claimant has actually suffered some physical injury or
damage. For example, he may have lost an arm or be impaled as a
cause of the negligence of the defendant.
1. Sharp v Avery & Kerwood

II. PSYCHIATRIC HARM OR NERVOUS SHOCK

This transcends ordinary grief, sorrow or distress which are actually
irrecoverable.
A psychiatric harm is a medically recognized condition of a
sustained nature that disturbs the normal functioning of the mind.
It might or might not be accompanied by overt physical symptoms.
A claimant who became mentally ill because of the shock to his
nervous system caused by an incident that either threatened his own
safety
1. Dulieu v White
Or involved witnessing exceptionally distressing injuries to others
2. Hambrook v Stokes bros
could in certain circumstances recover compensation for psychiatric
harm.
Claimant must have become mentally ill due to shock to his nervous
system caused by:

a. an incident that threatened his own safety

The claimant is referred to as the primary victim of the defendant’s
negligence.
The claimant involved in an accident through the defendant’s
negligence may suffer severe physical injury and may as well
succumb to mental illness triggered by the terror of the accident and
his consequent pain and suffering, or an accident may occur in
which the claimant is involved but in which he suffers no bodily
injury, only shock and fear that cause psychiatric illness
 1. Page v. Smith
2. Dulieu v. White

b. witnessing exceptional distressing injuries caused to others

The claimant is a secondary victim of the defendant’s negligence.
the claimant may not be directly involved in the original accident,
and be at no personal risk of physical injury, but nonetheless
witness injury to others and suffer psychiatric harm in consequence.
A good example would be a mother who witnesses a horrific injury
to her children
1. Hambrook v. Stokes Bros
A series of decisions have set limits, often referred to as control
mechanisms, on who may claim as a secondary victim of
psychiatric harm which are primarily intended to keep litigation in
this area within manageable limits.
To recover damages, a secondary victim must generally prove
either that; (these were given in the Alcock case)
a. A close tie of love or affection with the primary victim
(such a tie being presumed to exist between certain persons
such as spouses, or parents and their children)
2. McLoughlin v O’Brien

b. proximity in time and place to the accident.

He was proximate in time and space to the incident that he
witnessed and which sparked his nervous shock.
He witnessed the incident or came upon the immediate aftermath of
the incident happening to the primary victim
3. Alcock v. Chief Constable of South Yorkshire Police

c. The relevant psychiatric illness must be shown to result

from the trauma of the event or its immediate aftermath
4. Vernon v Bosely

NB: Where professional involvement purportedly leads to

psychiatric harm, by virtue that it is the job of the professional, he
would not be able to claim in the name of a viewer of the incident
since it is work after all.
His employer owes a duty of care to him thus anything not done
directly by the employer to cause the harm is not recoverable.
1. White v Chief Constable of South Yorkshire Police

OTHER EXAMPLES OF SECONDARY VICTIMS

Bystanders
As a bystander only, it should be foreseeable that he would suffer
such shock.
Practical and policy reasons, militated against such liability
1. McFarlane v. E. E. Caledonia Ltd

Rescuer or participant claiming for nervous shock

NB: The law renders no applause for the good Samaritan.
For a rescuer to successfully claim, the psychiatric harm should be
foreseeable, and during the rescue or participation reasonably, he
believed himself to be at risk
1. White v Chief Constable of South Yorkshire Police
For a rescuer to claim, the rescue should have been necessary and
the rescuer should have acted reasonably
2. Chadwick v British Transport Corporation
NB: Rescuers are an exception to the rule that the claimant must
have a tie of close affection with the primary victim.

III. PURE ECONOMIC LOSS

Where the harm/ damage / injury suffered does not involve the
physical or mental body of a person.
It may involve such things as money expended and opportunities to
profit forgone as a result of the defendant’s failure to take care.
For an action of the sort to succeed, the claimant must prove to the
court that the defendant owed him a duty to safeguard him against
these sort of losses.
NB: This restrictive approach to economic loss means that, in
practice, economic loss is generally only recoverable when the
claimant can establish;
 A special relationship between himself and the defendant
1. Williams v Natural Life Health Foods Ltd
 Or where the loss is consequential upon physical damage
also suffered by the claimant

A special/personal relationship between claimant and the

defendant
The original difficulty relating to economic loss resulting from
careless statements was that a person suffering economic loss
through relying on a fraudulent statement could sue in the tort of
deceit.
The House of Lords held that to establish deceit the claimant must
prove fraud – that is, broadly, that the defendant knew that his
statement was untrue, or was reckless as to its untruth.
Mere negligence was considered insufficient
1. Derry v Peek.
However, this opened the floodgates for a multiplicity of suits for a
statement made fraudulently thus the court in Hedley Byrne & co v
Heller & partners sought to rightly interpret the application of
Derry v peek.
The House was careful not to formulate rules that might expose a
maker of careless statements to liability to a large indeterminate
class of claimants.
NB: Instead, their Lordships said that the claimant seeking to
recover for negligent misstatements must establish that the
statement was made within a relationship where the claimant could
reasonably rely on the skill and care of the defendant in making the
statement.
He must show some special relationship with the defendant which
properly resulted in the defendant undertaking responsibility for the
accuracy of the statements made.
Subsequent cases came to further explain special relationship.
NB: Lord Diplock suggested that liability for misstatements should
arise only in the context of certain professional relationships where
giving advice was the primary purpose of the relationship
2. Williams v Natural Life Health Foods Ltd.
NB: It is as well to note at the outset that special relationships exist
not just where the defendant has made a statement or proffered
advice upon which the claimant relies, but also where he has
undertaken to perform various forms of service.
The defendant undertakes an assumption of responsibility of one
form or another:
 when the defendant makes a statement or proffered advice
upon which the claimant relies (negligent misstatements)
3. Derry v Peek
4. Hedley Byrne & Co ltd v. Heller & Partners

 where the defendant has undertaken to perform various

forms of service. Cases of this nature often involve lawyers.
5. Fordwuoh v law Chambers
6. Caparo Industries plc v Dickman

NB: these criteria was given in Caparo v Dickman industries

 The defendant must be fully aware of the nature of the
transaction that the claimant was involved or interested in
for which he needed the information

 The defendant must either have communicated the

information directly to the claimant or know that the
information he is giving out would be communicated to the
claimant
7. Smith v Bush
8. Williams v Natural Life Health Foods Ltd

 The defendant must specifically anticipate that the claimant

would properly and reasonably rely on the information
when deciding whether or not to engage in the transaction
in question and the claimant actually relied on the
information given
9. James McNaughton Paper Group v Hicks Anderson

 The transaction for which the information is needed must

be connected with interests that it is reasonable to require
the defendant to protect

NB: Advice or information must not be given on a social occasion,

however, if in a social occasion the defendant voluntarily assumes
responsibility in a business connection and the advice is not given
on a purely social occasion
 10. Mutual life citizens assurance v Evans
11. Chaudhry v Prabhakar

IV. INJURY/DAMAGE TO PROPERTY

A claimant may claim for damage to his property or chattel.
Here there are two questions asked;
a. that the subject matter of the claim is property damage
b. that the claimant is the right person to sue.
NB: Property damage involves some deleterious change in the
physical state or structure of property. These changes impair the
functional characteristics of the thing in question. It is actual
physical harm to property
1. Murphy v Brentwood District Council
NB: Where no such damage has materialized, the loss caused by the
need to repair defective property, to obviate the danger to person or
property, constitutes merely an economic loss.
It has always been clear that physical damage to, or defects in,
property which simply render it less than value for money, but not
dangerous, will be classified as economic loss.
Thus, the explanation of the murphy case would be that, if the
ceiling had actually collapsed on Mr Murphy, injuring him or
destroying his piano, he might have had a claim for personal
injuries or property damage against the builder.
However, unless and until such actual physical damage occurs, the
loss associated with the cost of making the house safe (or any
diminution in its value) is purely economic.

In respect of loss or damage to property is owed only to a person

having legal ownership of, or a possessory title to, the property
concerned at the time when the loss or damage occurred.
2. Leigh Sillivan Ltd v Aliakmon Shipping Co Ltd

CAUSATION AND REMOTENESS

OF DAMAGE

Despite the defendant owing a duty of care and being in breach of

that duty, the defendant will not be liable unless his conduct has
caused the claimant’s damage and that damage is not too remote in
law.
The claimant must usually show causation which is a “chain”
linking defendant’s conduct to the injury endured by the claimant. If
there is a break in the chain then, the defendant could escape
liability. (There is some amount of negligence but because of public
policy considerations, the defendant’s liability is restricted or
sometimes negated)

Causation in fact
The claimant has to prove on the balance of probabilities that the
defendant’s breach of duty caused the damage. The task of the
claimant is to establish a prima facie case that, on the balance of
probabilities, the fault of the defendant caused or materially
contributed to the injury.
Where the claimant has proved a breach of duty by the defendant
and can establish that the breach increased the risk of the injury to
which the claimant succumbed, and there is no proof of any
alternative cause, the defendant will be liable
1. Bonnington Castings Ltd v Wardlaw

Tests
a. The but for test
In determining causation in fact, the courts rely on the so-called
“but for” test.
If the damage would not have happened but for a particular fault
then that fault is the cause of the damage; if it would have happened
just the same, fault or no fault, the fault is not the cause of the
damage. i.e. “but for” the defendant’s negligence would the
accident have occurred? If the answer is no, the defendant would be
held liable
1. Barnett v Chelsea and Kensington Hospital Management
Committee
2. Cork v Kirby MacLean Ltd per Lord Denning
In proving evidence of causation, balance of probabilities
sometimes are used.

b. Loss of chance
1. Hotson v East Berkshire Area Health Authority
2. Gregg v Scott

c. more likely than not

Where it is more likely than not that the wrongful conduct of the
defendant caused the claimants loss or injury then it would be said
that the negligence of the defendant is the cause of the damage to
the claimant

d. Where there are multiple causes

Multiple causes operate as a novus actus interveniens to break the
chain of causation. When this happens, the defendant can no longer
be said to be liable to the claimant
1. Yanmoah v Yamak
If an intervening act which the defendant did not foresee interfered
with the defendant’s conduct, then he is not liable because the chain
of causation has been broken
The novus actus interveniens may operate in 3 ways
the intervening act of a third party
If the act of a third party is the true cause of the claimant's damage,
the defendant will not be liable however The third party‘s act must
be voluntary in order to amount to a novus actus interveniens
1. the Oropesa
2. Scott v Shepherd
The act of the 3rd party must also be independent of the act of the
defendant to amount to an actus novus interveniens. Where the act
of the 3rd party is not truly independent of the defendants act, the
defendant would still be liable
3. The Oropesa
4. Smith v Littlewoods per Lord Goff
5. Brandon v Osborne

It may be an intervening act of the claimant himself

The intervening act could be an intervening act of the claimant
himself that is if the claimant for example harms himself after an
accident caused by the defendant
1. Ekwo v Enechukwu
2. McKew v Holland
3. Brandon v Osborne
4. Adu v Gliksten west Africa

Act of God
A novus actus may also take the form of a natural event or an act of
nature . The courts will generally be reluctant to find that a natural
event breaks the chain of causation, as the claimant has no one else
to sue if the defendant is exonerated.
However, if the natural event or an act of nature is independent of
the negligence of the defendant, the defendant will not be liable
1. Carslogie Steamship v Royal Norwegian Government
2. Nichols v Marsland

REMOTENESS OF DAMAGE

Generally, a claimant may not be granted any remedy for

negligence if the damage suffered is too remote a consequence of
the defendant’s breach.
Usually influenced by public policy considerations. Public policy
determines that it is not fair to allow the claimant to claim for every
trivial loss due to the defendants conduct
1. the Wagon Mound No. 1

The test of remoteness

Two schools of thought is dealing with the remoteness of damage.
a. The direct consequences test
The first school, extends liability to all physiological consequences
 whether foreseeable or not. Usually works in personal injury case-
restrictive.
According to this test, once the defendant is proved to have been in
breach of the of care, he is liable for all the direct consequences of
that breach.
Directness here includes all consequences flowing in an
uninterrupted sequence, this is without the intervention of new
forces, human or natural.
Therefore, according to this school, the fact that the defendant could
not foresee a particular consequence of his act is immaterial, if it
was a direct consequence.
The rule called the Polemis Rule
1. Re Polemis

The egg-shell skull principle

In personal injury cases, the courts seem to favor the Polemis rule,
or, at any rate, one can say that decisions in this area are closer to
Polemis.
The extent of damage principle is also illustrated by the egg-shell
skull rule.
This rule states that the defendant must take the claimant as he finds
him, as regards his physical characteristics.
1. Dulieu v White
2. Smith v Leech Brain

b. The reasonable foreseeability test

The second school holds that foreseeability is the test for culpability
as well as compensation.
According to this view, it is not sufficient that some injury to the
plaintiff was foreseeable. The particular injury for which a claim is
made must satisfy the same test, standing on its own; that is the
injury itself must be reasonably foreseeable.
Thus, the defendant is liable only if the kind of damage that
occurred was foreseeable
1. The Wagon Mound case no. 1
The Wagon Mound case thus re-established reasonable
foreseeability as the test for remoteness of damage in negligence
cases.
The Privy Council expressly here overruled Re Polemis, declaring it
as bad law.

An occupier is anyone who is in occupation or control of the

OCCUPIER’S premise at a given time
LIABILITY 1. Wheat v E. Lacon & co ltd
He has a right to the possession of the premises occupied with a
power to exclude therefrom all other persons.
NB: The injury or loss suffered by those who come into the
premises is the thus the occupier’s liability.
Premises is very diverse. It could be fixed or a movable structure as
it includes buildings, vehicles, race-stands, railway carriages etc.
Once the occupier is in control and has the right to exclude others
from entry therein.
NB: The obligations of the occupier for damage which occurs on
his premises depend on the character of the entrant.
In this respect, the law draws a distinction between lawful and
unlawful visitors.
An unlawful entrant is termed a trespasser. Generally, the liability is
to all lawful visitors

CATEGORIES OF PERSONS
LAWFUL ENTRANTS
A. CONTRACTUAL VISITOR
The occupier owes a duty to contractual visitors that the premises
are safe.
The contractual visitor is anyone who comes to the premises in
pursuance of a contract which is often beneficial to the occupier and
the visitor.
NB: Where there exists a contract between the parties, the nature
and extent of the occupier's obligations in relation to the safety of
the premises will be a matter of construction from the contract.
NB: Where the contract is silent, there would be an implied
warranty that the premises are safe for the purposes contemplated
by the parties.
1. Frances v Cockrell
2. Maclenan v Segar
NB: The occupier, however is not responsible for defects which
could not reasonably be discovered by inspection as far as the
construction, alteration, repair or maintenance of the premises are
concerned.
The duty owed then is that an occupier warrants that his premises
are as safe, for the purposes of the contract, as reasonable care and
skill on the part of anyone can make them.
It matters not if what caused the event through negligence was
caused by servants or workers or independent contractors of the
occupier
3. Woodward v Mayor of Hastings
The occupier would still be liable unless the occupier can prove;
a. that the defect is one which he could not have noticed
reasonably
1. Gillmore v L.C.C. and

b. that he took reasonable steps to employ a competent

individual contractor to make sure that the premises are safe
2. Ferguson v Welsh
3. Haseldine v C.A. Daw & son ltd
Thus, where the occupier could not have discovered the defect,
even by the exercise of reasonable care, there is no liability
4. Gillmore v L.C.C
NB: It is no defence for the occupier to say that the defect was an
open danger which was obvious to all. The occupier must see to it
that his premises are safe for the purposes of his contract
NB: Look at Bell v Travco, where the court held that there was no
liability because the defendants obligation was inside of the
premises and not outside of it. Personally, I don’t agree so I don’t
use it as one of my authorities but for essay purposes, its key to
note.

B. INVITEES
These are on the premises at the invitation of the occupier.
An example is a customer in a shop.
There is also a mutual benefit shared by the occupier and the
invitee.
The duty, then, is that an occupier must take reasonable care to
prevent injury to the invitee from unusual danger of which he
knows or ought to know of.
1. Indemaur v Dames
2. Griffiths v Smith
The law is that, to discharge the duty, the occupier must warn the
invitees through notice or lighting, guarding or otherwise, to
prevent injury to them.
Danger perhaps ceases to be a danger when warning is given or
when it is obvious enough or ought to have known by a reasonable
person.
NB: However, the invitee must keep within the bounds of his
invitation.
The law protects an invitee so long as he keeps within the limits of
his invitation.
If he exceeds his invitation, he may become a trespasser
3. Walker v Midland Railway co
4. Mersey Docks & Harbor Board v Proctor
It is clear also therefore that an invitation may be limited as to place
and as to time. So that customers may not be considered as invited
after the shutters have been let down.

NB: We can also look at Pearson v Coleman bros but here let me
state that, it was because the claimant was a child, that was why the
court explained that since she wasn’t moving around out of
curiosity but looking for a spot to ease herself and was mauled by
the lion, the defendants were liable.

C. LICENSEES
Licensees are those with permission to enter the premises usually
for their own benefit and where it is mutual benefit, it is not one of
business nature.
Example is wedding guests at a party organized on the occupier’s
premises.
NB: The occupier owes no duty to a licensee and the licensee takes
premises which he is merely permitted to enter as he finds them
However, the exception is that where there are concealed danger on
the premises, known to the occupier and not known to the licensee
1. Lowery v Walker
Or obvious to him, then he ought to warn the licensee of such
potential dangers
2. Mersey Docks & Harbor Board v Proctor per Lord Summer
If the danger is obvious, the licensee will fail because no duty of
care is owed him.
If a reasonable man using reasonable care would have seen it, then
it is an obvious danger
3. Fairman v Perpetual investment building
If the danger was unknown to the occupier then no duty is owed
him
4. Morgan v Girls society

UNLAWFUL ENTRANTS
A trespasser is one who enters a premises where he neither has right
or permission to enter. His presence on the premises is unknown to
the occupier and even if known, is practically objected to by the
occupier
1. Addie v Dumbreck
Generally, an occupier, owes no liability for injury to unlawful
visitors however, the occupier must not deliberately inflict injury or
harm on trespassers
2. Bird v Holdbrook
However, when the presence of the trespasser is known, the
occupier must refrain from doing anything with reckless disregard
of his presence
3. Excelsior Wire Rope co v Callan
The occupier must also not create new dangers without giving
warnings.

The initial rule concerning trespassers was that a trespasser enters

the land of another at his own risk and is owed no duty other than
that of not inflicting damage intentionally or recklessly if the
trespasser is known to be present
1. Addie v Dumbreck
With the exception given that the duty of an occupier to a trespasser
was the duty to take care not to injure trespassers whose presence
was foreseeable or reasonably to anticipated, having regard to all
the circumstances, including the gravity and likelihood probable
injury, the character of the intrusion, the nature of the place where
the trespass occurred and the state of the occupier's knowledge.
2. Videan v British Transport Corporation (BTC),

However, the rule in Addie was revised in Herrington v British

Railway where the court found for the trespasser under the doctrine
of Common humanity; the duty of common humanity is employed
where the occupier becomes aware of the presence of the trespasser
or the likelihood of his presence.
1. Herrington v British Railway
The doctrine is used especially in cases involving children
2. Pannett v McGuiness
Thus, the more serious the danger, the more obligation on the
 occupier to avoid it by giving warning especially if it has to do with
children.
NB: One important point to keep in mind is that the rule in Addie
has not been jettisoned by these more recent and less harsh rules.
It is still the law that an occupier does not normally owe a trespasser
a duty of care.
The recent developments have merely modified the Addie rule to
accommodate or take account of situations where the occupier
becomes aware of the presence of the Trespasser or the real
likelihood of that presence.
The duty of common humanity strictly therefore is not entry related
but arises from knowledge of the presence or is presence-related.
This is unlike the duty to lawful visitors which is entry related.

EMPLOYER’S The employer, owes a duty of care to;

1. His employees
LIABILITY TO HIS 2. All persons as specified by statute.
EMPLOYEES AND 3RD 3. 3rd parties affected by the act of his employees (under
vicarious liability)
PARTIES We would thus take them in seriatim.

THE EMPLOYER’S PERSONAL

DUTY OF CARE TO HIS EMPLOYEES

NB: At common law, the duty of care owed by the employer to his
employee is a personal one of general nature which is non-
delegable.
1. Wilson & Clyde coal co. v English per Lord Wright (defendant
delegated the task of ensuring a safe system of work to another employee (miners) whose negligence resulted in the claimant’s
injury)

2. Harris v Brights Asphalt contractors per Slade J

3. Issah v Mim Timber (the tree felling niqqa)
Lord Wright stated that this obligation is in 3 folds; these are;
 The employer must provide a competent staff of men
 The employer must provide adequate plant and materials,
and
 The employer must provide proper system of work and
effective supervision

Let’s take this in seriatim also;

a. Provision of competent staff of men
This means the employer must not be negligent in staffing.
He must take reasonable steps in employing competent personnel
to tackle the issue at hand.
Where the employer employs insufficiently qualified or
inexperienced person for a particular task which results in the
injury to his employee, the employer would be found liable
1. Black v Fife coal co (defendant employed a collier manager who had no experience of carbon monoxide in
a pit where its presence was a possible danger)

NB: Competent staffing also means the employer must be careful

not to employ persons who engage in horseplay or who assault
others at work which the employer knows of or should have
reasonably known of.
If an employee is injured by the violent horseplay or assault by
another employee, the employer may be found liable.
2. Hudson v Ridge Manufacturing co (employers employed employee who they knew to
have the propensity to carry out foolish pranks which he actually did resulting in the injury of another employee)

b. Provision of Adequate plant and Material

The employer must take care not to injure his employees.
The employer has a duty to provide his employees with
appropriate and adequate plant and material i.e. adequate
equipment to work with including safety devices and protective
clothing etc.
1. Smith v Baker per Lord Herschel (plaintiff employed by defendant railway co. to drill holes
near a crane operated by employees of the defendant. Crane swung over plaintiff’s head without warning and plaintiff was fully
aware of this danger he was exposed to. A stone fell off the crane and injured the claimant. Court did not allow volenti to hold)

2. Vaughan v Roper & co.

3. Clifford v Challen & sons
NB: The employer is as well under a duty to maintain and supervise
the maintenance of existing equipment.
The failure to provide these will constitute a breach of his duty
towards his employees.
4. Wilsons & Clyde Coal Co Ltd v English (dicta)
5. Ataa v Ashanti Goldfields co. (claimant’s husband was among miners who died from a cage
hauling miner to the surface which broke and fell into water causing death of miners. Evidence showed that a leakage from the
engine room could and possibly did render the brakes ineffective and this could have been prevented if the defendant applied
dynamic braking)

6. Toronto Power Co Ltd v Paskwan

NB: Should the employer buy a reputable make of tool from a
reputable source which turns out to have a latent defect which he
cannot discover upon reasonable inspection, then the employer
would not be liable
7. Davie v New Merton Board Mills ltd
NB: Equipment is interpreted broadly to mean any plant and
machinery, vehicle, aircraft and clothing. Every article of every kind
furnished by the employer for purposes of his business and not
merely for the use of his employees will be regarded as equipment
(Lord Jauncy)
8. Coltman v Bibby Tankers ltd (ship sank killing all crew, ship in the case was interpreted as
equipment)

9. Knowles v Liverpool city council per Lord Jauncy

c. Provision of a proper system of working and effective

supervision
The employer must provide a safe place of working and a safe
system of work.
The environment where the work is done must be conducive and
safe.
Lord Green (in Speed v Thomas) defined system of work as the
physical layout of the job, the sequence in which work is to be
carried out, the provision of warnings and notices, the issue of
special instructions where necessary.
1. General cleaning contractors v Christmas (the claimant was a window cleaner.
His employers instructed her in the sill method of cleaning windows. She had to hold on to the window sash while cleaning. The
window fell on his fingers and he fell to the ground. It was held that the employers were in breach of their personal duty of care
and they should have told the claimant to test the sashes to see if they were loose and provided him with wedges. They had failed
to provide a safe system of work)

2. Speed v Thomas Swift & Co Ltd per Lord Green

Sometimes even after providing the safe system of work, the
employer must supervise that the employee makes use of these
equipment or warn them of the hazards in not using the
equipment
3. Pape v Cumbria county council (employers were held liable for the claimant's dermatitis
caused by contact with cleaning products. Although the employers had provided protective gloves they had failed to warn
cleaning staff of the danger of sustained exposure of the skin to the cleaning products, and had also failed to advise them to wear

the gloves at all times)

What if the danger cannot be guarded against?

The principle here is that that if a job has risks to health and safety
which are not common knowledge but which the employer knows,
or ought to know about and against which he cannot guard, he
should tell a prospective employee about the risk if it might affect
his decision to accept the offer
4. White v Holbrook precision castings (claimant was employed as a laborer for three
months, then offered a job as grinder. Grinders almost always suffer from white finger as a result of vibration. Claimant suffered
from white finger and had to go back to a less well-paid job. He sued his employers for negligence in not providing a safe system
of work. Though there was nothing the employer could do to guard against this problem it was held that if a job has risks to health
and safety which are not common knowledge but which the employer knows, or ought to know about and against which he
cannot guard, he should tell a prospective employee about the risk if it might affect his decision to accept the offer.

Where the employee is disadvantaged, the employer must take

reasonable steps in providing a safe system of work for the
employee
5. Paris v Stepney Borough Council
This means that if the employer takes reasonable steps in
providing a safe system of work and effective supervision, he
would not be found liable for the injury suffered by the employee
6. Woods v Durable suites ltd.
NB: The law however, does not require employers to dismiss
employees if this is the only way of avoiding liability
7. Withers v Perry Chain

LIABILITY FOR STRESS

The employer is also under a duty to avoid exposing the employee
to health endangering situations like stress
1. Walker v Northumberland County Council
2. Hatton v Sutherland
 DUTY OF CARE PLACED BY
STATUTE (statutory duty)

Sometimes, the extent of the duty imposed on the employer is

established under statute e.g. Section 9(a), (c), 118 of the Labor
Act 2003 (Act 651). However, for the claimant to claim against the
employer under statute, he must prove that;
a. He belongs to the class of persons the statute sought
protect
1. Westwood v The Post office (the claimants were the administrators of an employee.
He fell through a trapdoor in the lift motor room at a local telephone exchange and suffered fatal injuries. On the door of
the room was a sign Notice. Only the authorized attendant is permitted to enter to which the deceased was not the
authorized attendant. The court held that he was entitled to the protection afforded by the Act since he was a person
employed to work in office premises and those premises included the lift motor room)

2. Groves v Lord Wimborne

b. The damage suffered was within the contemplation of the

objects of the statute. i.e. the damage suffered must fall
within what the statute was meant to remedy.
1. Gorris v Scott (ship owner was required by statute to provide pens for cattle on board his ship. He failed
to do so, with the result that the claimant’s cattle were swept overboard. It was held that the ship owner was not liable
for the loss, because the damage the statute was intended to prevent was the spread of contagious diseases, not the
sweeping overboard of the cattle)

c. The injury must be caused by the defendant’s breach of

the statutory duty (causation).
The claimant must show causal connection between the breach
and the subsequent damage
1. Bonnington castings ltd v Wardlaw (C, who was D’s employee, contracted
pneumoconiosis after inhaling silicon dust at work. The dust came from two sources; swing grinders and pneumatic
hammers. Only the dust thrown out by the swing grinders was regarded as tortious. The dust generated by the hammers
was not, however, tortuously produced. The question that arose, then, was whether it was the innocent or the tortious’ dust
that had caused C’s condition. There was no evidence at all as to the proportions of ‘innocent’ and tortious dust that C had
inhaled. It was therefore impossible to apply the usual but for test since C could not show on the balance of probabilities
that, had a proper extraction mechanism been used, he would not have contracted the disease. The House of Lords
nonetheless found for C

DELEGATION OF DUTY
NB: Delegation of the statutory requirement to other employees or
to an independent contractor does not absolve the employer of his
personal duty and his liability for a breach of the duty.
We have already stated that the duty is a personal duty which is
not delegable.
However, if the employer can prove that;
a. The duty was delegated to the claimant himself and it is
the claimant who was at fault then he establishes a good
defense
1. Ginty v Belmont building supplies (claimant in replacing asbestos fell through
the roof. Defendant had instructed claimant to use boards because the roof was unsafe and he failed thus was at fault)

2. Ross v Associated Portland cement manufacturers ltd.

b. The employer shows that he has complied with his

 statutory duty by taking all reasonable steps to prevent his
delegate from committing breaches of the regulations

QUANTUM OF DAMAGES
Usually, the quantum of damages is what is imposed by statute
1. Atkinson v Newcastle & Gateshead Water Co (C brought an action for
damages against D for not keeping their pipes charges as required by the Act whereby his premises situated within the limits of
D’s Act was burnt down)

However, sometimes, the claimant can claim beyond the

provisions of statute usually to prevent injustice (usually insurance
cases and the defendant may have to pay
2. Monk v Warbey (C suffered bodily injuries in a road accident. The driver of the car was uninsured and
impecunious. The claimant recovered his consequential financial loss by suing the owner of the car who, in breach of his statutory
duty, had allowed his friend to drive uninsured against third party risks)

EMPLOYERS DUTY OF CARE

UNDER VICARIOUS LIABILITY

Vicarious liability occurs when one person is made liable for the
tort of another and in this circumstance, an employer made liable
for the tort of his employee.
The principle is said to be based on fault and therefore the need
for noting some justifications for the principle which lord Pearce
has also elaborated in;
1. Imperial Chemicals ltd v Shatwell Lord Pearce’s dictum
Some justifications elaborated in Kumado are;
a. It serves the loss distribution function of the law of torts,
i.e. the employer is better able to distribute the cost of this
liability either through insurance or to his customers
b. It encourages the employer to exercise better control over
his employees, thus supporting the policy of accident
prevention.
c. It encourages the employer to be careful in the selection of
employees.
d. The employer takes the benefits of the work of the
employee, so he should also shoulder the risks attached to
that activity.
e. From the victim's point of view, the compensation function
of torts law requires that liability be imposed on the
employer who is in a better position to pay rather than the
employee who may be a person of straw.
f. Often the duty breached by the employee is a duty owed
by the employer; therefore, it is only fair that he should
carry the can
NB: Vicarious liability arises from the employer-employee
relationship and not the relationship between the employer and an
independent contractor.
Who then is an employer, an employee and an independent
contractor?
The court, in answering this question, employs various tests which
would be enumerated below;

a. Integration /Organization Test:

One must distinguish between contract of service and contract for
services.
That a worker who is an employee does his work as an integral part
of the business whereas an independent contractor is not
integrated into the business but is merely accessory to it.
The reasoning is that under a contract of service, a man is
employed as part of the business and his work is done as an
integral part of the business; whereas under a contract for services
(independent contractor), his work, although done for the
business, is not integrated into it but is only accessory to it.
A chauffeur would, for example, be an employee, whereas a taxi
driver would be an independent contractor on this reasoning.
1. Stevenson v McDonald per Lord Denning (A mgt engineer wrote a book
using info he gained while working for his firm. Some was from the text of lectures that he wrote and delivered and some
was form material he acquired while on an assignment. He died before publication. Since he was in the employment of
the claimants, they sought to claim the book)

2. Whittaker v Minister of Pensions and National

Insurance
3. Short v J &W Henderson ltd
4. Ready Mixed Concrete (South East) Ltd v Minister of
Pensions per Mackenna J
5. Massey v Crown Life Insurance
6. Young and Woods v West
7. Market Investigations Ltd v Min of Social Security

b. Control test:
Considers the person who controls/commands the workman as his
employer and therefore the one answerable for his wrongs.
A person was an employee if his employer has the right to control
not only what work he does but the way in which the work is done.
Who has the right to dismiss and who can be dismissed?
1. Yewens v Noakes per Bramwell J
2. Performing Right Society ltd v Mitchell & Booker
3. Kussasi v Ghana cargo handling co.
In a situation of borrowed employee, the same principle applies.
Who has the power to dismiss the employee? Who has the right to
tell the employee exactly how to do the work? That person is the
employer and owes a duty to the employee and is vicariously liable
to acts done by the employee
4. Mersey Docks & Harbour board v Coggins (C hired out a
crane and its skilled operator to D. Although the power of dismissal remained with the C, the contract provided that the
 operator was to be the servant of D. The operator was negligent in handling the crane while under the immediate control
of D in unloading a ship, although the D could not instruct him in the working of the machine, and the court had to decide
who would be vicariously liable. The court held that the D still had ultimate control over the operator and the crane and
was therefore vicariously liable)

5. O’Reilly v Imperial chemical industries

c. Entrepreneurial Test/ Economic reality test:

Whose business is it? / Is the party taking a financial risk with the
chance of loss as well as profit?
1. Ready market investigations v Minister of Social
Security

THE TEST FOR LIABILITY

For vicarious liability to lie, the following test or guidelines are
used;
a. The act must have been committed in the course of the
employee’s employment:
The vicarious liability principle states that, the employer is liable
for the tort of his employee which was committed in the course of
his employment.
To that extent, the fact that the employee was doing his work
negligently or carelessly would not absolve the employer from
being vicariously liable so long as it was done in the course of his
employment. i.e. even if the servant doing an act authorised by the
master but doing it wrongly, the employer would still be liable.
1. Century insurance ltd. v Northern Ireland Road Transport
per Viscount Simon LC (the driver of a petrol tanker, while transferring gasoline from the vehicle to an
underground tank at a filling station, stuck a match in order to light a cigarette and then threw it, still alight, on the floor. His
employers were held liable for the ensuing explosion and fire, since the driver’s negligent act was merely an unauthorized manner
of doing what he was employed to do, that is, to deliver gasoline)

2. Rickets v Tilling (plaintiff suffered injuries owing to the negligent driving of an omnibus by the defendant's
servant. When the bus came to its final terminus, their driver allowed the conductor to turn it round, while he sat beside him.
Owing to the negligent driving of the conductor, the bus mounted a pavement, knocked down a lamp post and several persons
were severely injured. The court held that the driver was negligent either in allowing the conductor to drive the bus or in not
seeing that the conductor drove properly. This was negligence in the course of his employment and negligence for which the
defendants (his masters) were liable.

3. Akyigina v Adjei (driver of appellants knocked down and killed the deceased to which his executors sued the
appellants to be vicariously liable for the act of the driver. Court held that since the vehicle was owned by the appellant who
employed the driver who drove the vehicle at the material time to cart sand and stone, a presumption was raised that the
accident occurred at a time when the driver was driving in the course of his master's business)

4. Guardian Royal Exchange ltd v Appiah (The respondent brought action for
damages for injuries she sustained in a motor accident at Nsawam caused by the negligent driving of the company’s driver who
died in the accident. At the material time the deceased driver had been asked to pick the car at a garage in Accra, wash it and
return it to the garage. The company argued that taking cognizance of the fact that the accident occurred outside Accra, the
deceased could not have been driving in the course of his employment and that he was on the frolic of his own. The Court was
however of the view that since the driver was authorized by the appellants to take the car out and wash it, it made no difference
that the appellants did not authorize and would not have authorized the place, means and manner he decided to do it and
consequently the company would be liable for any wrongful acts of the driver)

5. Whatman v Pearson (contrast with storey v ashton)

6. Smith v Stages
The mere fact that an employer has placed prohibitions upon the
conduct of the employee will not, of itself, operate to restrict the
course of employment, if the act fell within the course of
employment even though prohibited.
7. Plumb v Cobden flour mills
8. Limpus v London General omnibus co (D expressly prohibited their drivers from
racing with, or obstructing, other buses. The driver, however, obstructed the claimant’s bus to pick two lady passengers and, in
doing so, caused a collision in which several passengers were injured. It was held that the defendants were vicariously liable for
the tort of their driver because at the time of the accident he was vicariously doing an authorized act (driving a bus) in an
unauthorized mode and manner)

NB: The act must be committed within the scope of the workers
employment. i.e. the act must be authorized by the employer such
 that if the act was not authorized by the employer then the
employer would not be liable. I.e. the servant being on a frolic of
his own
9. Beard v London Omnibus (conductor of an omnibus drove the bus through side streets outside the
bus route at a fast rate without the presence of the driver. He knocked and injured the claimant. Court held that the conductor
was not in the scope of his employment or in the course of his employment)

An unauthorized act which is not in the scope of the workers

employment would not make the master liable.
10. Joel v Morrison per Parker B
11. Storey v Ashton (the worker finished his deliveries before taking the detour)
12. Attorney General v Dadey (don’t use the fire car to give lifts which he did. Court said he was
neither in the scope or course of his employment)

NB: The employer is not liable for tort of an independent

contractor (or actor)
13. Incorporated girl society v Morgan
14. Beard v London Omnibus

Employee Protecting Masters Property

The employee is under a duty to take reasonable steps to protect
his master’s property in case of emergency.
1. Poland v Parr
2. Dyer v Munday
3. Parker v Sekondi/Takoradi Municipal council
Whether he exceeds this duty is adjudged based on the degree of
deviation and on case by case basis.

There are 2 major defenses to an action in negligence. These are;

DEFENCES TO a. Contributory negligence; if successful operates as a partial
NEGLIGENCE defense and only limits the defendant’s liability for the
claimant’s injury
b. Volenti nonfit injuria; if successful operates as a complete
defense
We would thus discuss these in seriatim

CONTRIBUTORY NEGLIGENCE
Contributory negligence is a failure by the claimant to take
reasonable care for his own safety that contributes to the damage
about which he complains.
Previously, contributory negligence was a complete defense but this is no longer the case
because it led to unfairness which brought about other rules such as the “last opportunity
rule” which meant in a situation where the claimant and the defendant all contributed to the
claimant’s injury, the last person to have had the opportunity to avoid the injury would be
liable. This principle also led to unfairness and in Ghana for example has been abolished by
statute.
In Ghana, the law on contributory negligence is found in
1. Section 1(1) and (2) of the Civil liability act 1976 (Act 176)
The liability would thus have to be apportioned between the
claimant and the defendant as how the court thinks equitable and
just.
This means that the damages which the claimant would have been
awarded by the court would fall as the blame would be shared
among claimant and defendant
NB: A duty of care owed is unimportant here. All that is needed is
that the claimant had contributed to causing the harm or injury
2. Froom v Butcher per Lord Denning
3. Capps v Miller
NB: The claimant's lack of care must actually contribute to the
damage done.
This means that the claimant's injury must fall within the general
scope of the risk taken i.e. the injury must be foreseeable.
Therefore, the standard of care that must be reached in
contributory negligence is that of a reasonable man in the
circumstances would do or not do.
4. Jones v Livox Quarries per Lord Denning
5. O’Connell v Jackson
6. Jones v Boyce
7. Owens v Brimmell per Watkin J (for knowingly accepting a lift from a
drunk driver)
Where the claimant is a child, the appropriate standard of care is
that which could reasonably be expected, taking into account the
child’s age and development
8. Gough v Thorne
9. Yachuk v Oliver Blais
NB: This might seem silly, but note that apportionment cannot be
100% for since doing so would mean lumping the whole
responsibility for the injury on the claimant and not shared at all

VOLENTI NONFIT INJURIA

Also referred to as voluntary assumption of risk.
A literal translation of the Latin phrase is no injury is done to one
who consents.
Thus, a person who voluntarily consents to the harm done to him
may not sue on it.
1. White v Blackmore
NB: The catch however here is that, the defendant relying on
volentis must show that the claimant voluntarily, freely and
knowingly consented to the risk and agreed to incur it (Volenti not
scienti nonfit inuria).
2. Gyasi v State Gold mining corp.
Consent may be express or implied, depending on the facts of the
case.
Generally, the courts are reluctant to allow the maxim to apply in
relation to workplace/ employer- employee relationship.
NB: In fact, where the act to which the servant is said to be volens
arises out of his ordinary duty, the court would not allow the
maxim to apply.
For the maxim to apply, the master must prove that the servant
freely agreed that should injury befall him, the risk was to be his
and not his masters
3. Smith v Baker & sons
4. Bowater v Rowley Regis
NB: In rescue cases also, the defense of volenti does not apply
where the claimant consciously or deliberately takes a risk in order
to rescue someone from imminent danger or personal injury or
death.
This is because the rescuer is deemed to be acting instinctively due
to his moral or social conscience, and therefore not exercising real
freedom of choice.
In addition, in a rescue case the defendant's negligence will have
happened before the rescuer takes the risk, and therefore the
claimant cannot be said to have consented to the defendant's
behavior
5. Haynes v Harwood
6. Chadwick v British railway board
7. Baker v Hopkins & sons
Similarly, in a driver-passenger case, the court are also unwilling to
allow the defense of volenti to apply
8. Dann v Hamilton
NB: The whole point here is that the courts put a very high criteria
on the applicability on volentis which is mostly impossible to meet
and therefore the use of contributory negligence would be a safer
way to go as a defense.

EXCLUSION/ LIMITATION OF LIABILITY

Liability can also be expressly excluded or limited by a contract
between the parties or by way of a notice or an agreement.
Sometimes, the exclusion or limitation as we studied under
contract even purports to exclude or limit liability for injury caused
as a result of the defendant’s negligence.
This means that an exclusion or limitation notice or clause may be
used to impose a lesser duty of care or even none at all.
1. Ashdown v Samuel Williams & Sons Ltd
2. White v Blackmore
Remember we also mentioned in contract that the courts are
readier to allow a limitation clause than an exclusion clause and
imposes some strict requirement on its applicability one of which is
a consistent course of dealing. Refer to your contract notes if you
want more. This is torts!!!

ILLEGALITY (EX TURPI CAUSA)

In certain situations, tort law grants a negligent defendant a
defence if the claimant whom he injured was acting in breach of
the criminal law or acting unlawfully at the relevant time.
This defence, which is often referred to by the maxim “ex turpi
 causa non oritur actio”.
It means that a person injured as a result of his or her own
unlawful act may not be able to claim compensation.
If at the material time when the negligence of the defendant
caused injury to the claimant, the claimant was doing an unlawful
act, the defendant may raise this defence.
Ex turpi cause in most cases operates with contributory negligence
1. Turner v Ashton
2. Henwood v Municipal Tramsway trust

LIMITATION OF ACTIONS
This defence is basically having to do with statutes of limitations
that bar the claimant from bringing an action against the
defendant.
Thus, here, where the claimant establishes the negligence of the
defendant which has resulted in the claimant’s injury, the defence
that can be raised by the defendant can be that, his action is
barred by statute anyway

ECONOMIC TORTS

INTERFERENCE WITH A
PERSON’S TRADE OR BUSINESS
THROUGH FALSE
REPRESENTATIONS)

The tort to be discussed under this chapter deals with acts done
intentionally to cause harm to another’s right to earn a living by
wrongful means. There are various ways through which the
defendant can do these acts. Under this chapter we discuss the
acts of the defendant through false representations to injure the
trade or business of the claimant.

PASSING OFF

This tort covers instances where the defendant sells goods or carry
on his business in such a manner as to mislead the public into the
belief that the goods or business of the defendant are those of the
claimant.
This tort seeks to protect traders against misrepresentations aimed
at their customers that are calculated to damage the trader’s
goodwill.

ELEMENTS
Lord Diplock in Erven Warnink BV v Townend & Sons (Hull) Ltd laid
down the elements for passing off;
a. There must be a misrepresentation made by the
defendant in the course of trade
There must be a basic misrepresentation by the defendant.
There must have been a putting out of a false statement or create
a false narrative about a product.
The basic misrepresentation must be related to trade.
1. McCollough v May (C was a popular children’s radio presenter called Uncle Mac. D begun selling “Uncle
Mac” puffed wheats without BBC C’s employer’s permission. Even though cereal used the name associated to C and also designed
in such a way to associate the cereal with D, the court held for D explaining that the claimant was a presenter and not a cereal
producer and thus the public was not going to be deceived and thus no passing off)

Trade here is liberally/ broadly defined and includes pursuit of a

variety of profession including the work of musicians and artistes
2. Society of Incorporated accountants v Vincent (C used the initials FSAA
which D was also using even though he hadn’t passed the requisite exams or part of the group. The court held the act of D as
passing off)

3. Hines v Winnick (C played an orchestra for D on a radio in which he used the name Dr Crock and his crockpots.
D sought to replace C with another musician to play Dr crock in C’s stead. C sued and the court held that there was no difference
thus held against D)

4. Lord Byron v Johnston

However, trade does not cover every activity
5. Kean v McGiven (a political party was not able to protect itself against another calling his own party the Social
Democrat Party even though this could in effect lead to confusion. The court held that the concept of trade did not extend this
far)

b. The misrepresentation must be directed/ aimed at

deceiving prospective customers or ultimate consumers
The misrepresentation must be made either to prospective
customers of the claimant or to ultimate consumers of goods or
services supplied by him
1. Erven Warnink BV v Townend & Sons (Hull) Ltd (C were producers of a
Dutch Liquor called “advocaat”. D produce a similar drink and sold as “keeling’s old English advocaat”)

And that conduct of the defendant must have been calculated

towards or likely to mislead the public into believing that the
product of the defendant is that of the claimant.
2. Phones4ultd v Phones4u.co.uk
NB: Actual deceive need not be proved since likelihood of deceit
would be sufficient
3. Baume & Co Ltd v Moore Ltd (D imported watches with very close to that of C’s name. court
held that there’s a possibility that the goods would be taken as though they are that of C)

However, if it is unlikely to be confused by the misrepresentation,

then there is no passing off
4. Newsweek Inc v BBC (C were publishers of weekly news magazine called “Newsweek, D undertook a
television show called “Newsweek”. Court held that an action on passing off would not lie since customers are not likely to be
confused

5. McCollough v May
It would not be a defence that the customer should have done due
diligence and if they had been, they would not have been
deceived. Take your customer as you find him!
6. Reckitt & Colman Products Ltd. v. Borden Inc (the Jeff lemon case) per
 Lord Oliver (C sold lemon juice under the name Jiff lemon which came in plastic yellow container that was shaped
like a lemon, D started producing lemon juice in a similar lemon shaped plastic container that was only slightly larger with a
flattened side)

c. The misrepresentation must be calculated or be likely to

injure or damage the claimant’s business or goodwill
Here, actual damage need not be proved.
There is no need to show actual damage or that damage was in
fact caused to the trader
1. Draper v Trist
Likelihood or foreseeable damage would suffice and as such it
would be unnecessary to prove that any member of the public was
actually deceived.
Damage subsists in reduced profit or damage to goodwill or
reputation

FORMS OF PASSING OFF

a. Using the claimant’s trade name as though it were that of
the defendant (dishonest competitive trading)
NB: A trade name is one under which goods are sold or made by a
certain person and which by established usage has become known
to the public.
NB: To establish the name as a trade name, the claimant must
prove that the name has acquired a secondary meaning that is so
closely associated with the claimant’s own product that its use by
the defendant is calculated to deceive purchasers. i.e. A name that
has garnished credibility by established usage.
1. Powell v Birmingham Vinegar Brewery (for 34 years C and predecessors sold
sauce named “Yorkshire Relish”. D produced and begun selling sauce and called it “Yorkshire Relish”. Though their label was
different in color, both contained Yorkshire Relish at the top in large curved letters. Court held that the name was a trade name
and D was passing off)

NB: The protection of a trade name is not only restricted to traders

and manufacturers.
An artist, writer or musician who “gets to be known under a
particular name which becomes inevitably part of his stock in trade
is entitled to claim that it is his name and that anyone who adopts
the name is inflicting on him an injury
2. Hines v Winnick (Dr Crock and his crockpots)
NB: The claimant must prove that the name is a trade name or it
has received goodwill because a mere name that describes the
product would not prevent others from using it e.g. cellular
textiles.
3. Reddaway v Banham (C produced belts which he called “Camel Hair Belting for many years. D a former
employee of C started his belting business and called it Camel Hair Beltings. Court held per Lord Herschell that C’s name had
acquired a secondary meaning through its broad notoriety and that the public had clearly associated Camel hair belting with the
product of C and thus D using same name is likely to get purchasers thinking they are buying D’s product)

4. Hendricks v Montague
5. Maxim’s ltd v Dye (maxims restaurant)

b. Imitating the appearance of the claimant’s goods

The defendant is liable for passing off if in marketing his goods, he
imitates or copies the appearance of claimant’s goods in a manner
likely to confuse the public
1. White Hudson v Asian ltd (C produced cough sweets in an orange wrapping and named Hacks. D
begun producing cough sweets too but in a white wrapping but later changed to an orange wrapping just like C’s own and named
it Petco Peckos. The majority of C’s customers were persons not able to read English. They acquired the habit of simply calling for
“red pepper cough sweets”. An injunction was granted to restrain the defendants from selling their sweets in the same type of
wrappers without distinguishing them in some way)

2. Reckitt & Colman Products Ltd. v. Borden Inc (the Jiff lemon case)
3. Bollinger (J) v Costa Brava wine co (D marketed ‘Spanish Champagne’, a sparkling
Spanish wine. C was one of several manufacturers of champagne in the Champagne region of France. Th e court found that
members of the public bought D’s wine in the mistaken belief that they were buying champagne from the vineyards of
Champagne. It was held D had committed the tort of passing off)

4. Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd

c. Using a product name that is too similar to that of the

claimant
When the defendant uses a name that is too similar to that of the
claimant, that can be liable for passing off
1. United biscuit ltd v Asda stores (C manufactured “Penguin” a chocolate-coated sandwich
biscuit. For a long time, C sold Penguin biscuits in predominantly red packaging with a yellow band, featuring the word Penguin in
back. This was the trade name of C. D produced and advertised a chocolate biscuit which they called “Puffin”. The court held that
the name was too similar to that of C and as such C’s trade and goodwill was threatened)

2. Reddaway v Banham (camel hair belting and camel hair beltings)

3. Hendricks v Montague (universal life assurance society and Universe life assurance ass.)

d. Claiming goods were manufactured by the claimant when

they were actually not
Where the defendant markets his goods as thought they were the
works of the claimant but were actually not, that could be passing
off
1. Lord Byron v Johnston (The defendants sold books of poems and advertised them as being the works
of Lord Byron, when someone in fact wrote them. The court held that there was a clear misrepresentation designed to take

advantage of a famous name)

DEFENCES
It would be no defence on the part of the defendant that should
the customer had done due diligence, he would not have been
ridden off.
The only defence available is that of consent

REMEDIES
a. Injunction to restrain the defendant from further passing
off activities
b. Damages for loss to either reputation, goodwill, client or
profit.

INJURIOUS/ MALICIOUS
 FALSEHOOD

This is an interference with the economic livelihood of the

claimant, that involves a malicious statement (without
justification), whether written or oral, which is published and
calculated to injure the goodwill of the claimant’s business and
actually does causes damage to the claimant’s business.
1. Ratcliffe v Evans (C and his father operated a business. When C’s father died, D published an article stating
that C’s business no longer existed after his father’s death. This was untrue and C sued)

ELEMENTS
a. There must be a false statement
This false statement can be written or oral
1. Ratcliffe v Evans
The claimant must prove that the statement was untrue
2. Joyce v Sengupta (C was a royal made. Publications were made by D alleging that C had stolen some
confidential letters and had been sacked to which C claims to be malicious and untrue)

b. The false statement must be maliciously published

Publication here means communicated to a 3rd party.
The publication is malicious because it is untrue and the defendant
knows or ought to know this but does it anyway without any
justification.
1. Joyce v Motors Survey (C became the tenant of one of D’s lock-up garages in order to have premises
at which he could be registered as a tyre dealer. D subsequently wished to evict C in order to sell the entire property with vacant
possession. D therefore told the Post Office not to forward any more mail to him at that address, and told the tyre manufacturers’
association that he was no longer trading there. D’s conduct was held to constitute malicious falsehood)

2. CF Malachy v Soper
NB: The publication must not be a mere puff or exaggeration.
The test to determine whether the statement would be a mere
puff is where a reasonable man would take the defendant’s claim
in denigration of the claimant’s goods seriously
3. White v Mellin

c. The statement must be about the claimant’s business/

trade
The malicious publication of the untrue statement must be about
the claimant and his business or trade
1. De Beers Abrasive Products Ltd v International General
Electric Co of New York
It is not enough that any false statement resulted in harm to the
claimant. Thus, the statement must at least indirectly refer to the
claimant or his business
2. Marathon mutual ltd v Waters
Business here could include enterprises associated with business
including;
An interest in land
3. Ratcliffe v Evans
Employment prospects
4. Joyce v Spentuga
Deprive a person of marriage prospects
5. Shepherd v Wakeman

d. The statement must be calculated to cause harm and

must cause harm to the claimant’s business
There must be intention that pecuniary loss be suffered.
The statement must be calculated to cause harm in the sense that,
it is of its nature really likely to cause harm to the claimant’s
goodwill
1. Ratcliffe v Evans
2. Kaye v Robertson
The claimant must show that the statement caused him to suffer
some actual harm which is quantifiable or some pecuniary loss.
3. Fielding v Variety incorporated
4. Ajello v Worsley
5. Shapiro v La Morta

REMEDY
Quite obviously, damages is an available remedy to a claimant in
an action of malicious/injurious falsehood against a defendant.
1. Fielding v Variety Incorporated
Injunction can be said to be an available remedy to a claimant in an
action of malicious/injurious falsehood against a defendant
especially when the false statement is of a continuous nature

DEFENCE
Truth is a defence for this tort

DECEIT

Defines as a false representation made knowingly, or without

belief in its truth, recklessly, careless whether it be true or false
with the intention that the claimant should act in reliance upon the
misrepresentation and which causes damage to claimant as a
consequence of his reliance upon it.
1. Pasley v Freeman
2. Derry v Peek
 ELEMENTS
a. False representation
There must have been a false representation by the defendant.
It may be spoken, written or by conduct that is calculated to
mislead the claimant.
1. R v Barnard
The representation must be made to the claimant or to a class of
persons to which the claimant is part
2. Pasley v Freeman

b. Knowledge
As already noted, in order for the defendant to be liable, he must
have made the statement knowingly, or without belief in its truth,
or recklessly, careless whether it be true or false
1. Derry v Peek
2. Edington v Fitzmaurice
Sometimes the representation begins of as accurate, but
circumstances change which renders the representation untrue. If
the defendant knows of this change in circumstances but does not
make the claimant aware but allows the claimant to believe that
the former representation is accurate, that may amount to a deceit
3. With v O’Flanagan
4. Incledon v Watson

c. Intention to deceive
The defendant must have intended that the claimant or the class
of persons to which the claimant belongs would rely on the false
representation.
1. Peek v Gurney per Lord Cairns
2. Bisset v Wilkinson
3. Smith v Chadwick
4. Esso petroleum v Mardon
5. Langridge v Levy
6. Caparo v Dickman

d. Reliance of the claimant

The claimant must rely on the false representation such that the
representation must have influenced the claimant
1. Downs v Chappel
This means that if the claimant did not rely on the representation
then an action of deceit would not lie
2. Horsefall v Thomas
3. Atwood v Small
And in like manner, a claimant who was not deceived cannot also
claim.

e. Damage/ Loss
The claimant must suffer loss as a result of relying on the false
representation made by the defendant
1. Archer v Brown
2. Doyle v Olby (ironmongers)

DEFENCE
A claimant who is actually not deceived cannot successfully sue
under this tort.

INTERFERENCE WITH A
PERSON’S TRADE OR BUSINESS
BY MEANS OTHER THAN BY
FALSE REPRESENTATION
(Interference with trade and contractual
relations)

 INTERFERENCE WITH TRADE

CONSPIRACY

Conspiracy in this respect occurs when two or more people agree

to injure another person in the course of his trade

ELEMENTS
a. Combination
Two or more persons acting with a common purpose.
The ancient fiction that a husband and wife were one person in the
eyes of the common law no longer prevents spouses being liable
together for the tort of conspiracy
1. Midland Bank Trust Co Ltd v Green (No 3)
Directors and their company may conspire together since the
company is a separate legal entity
2. Belmont Finance Corporation Ltd v Williams Furniture Ltd

b. Purpose of the conspiracy

The purpose for which the parties combined against the claimant
must be proved to be to injure or harm the claimant’s trade.
Thus, if the purpose was to promote or protect the interest of the
defendant, but not to injure the claimant’s business, then the
defendants would not be liable for conspiracy
1. Crofter Hand Woven Harris Tweed Co Ltd v Veitch (C produced
tweed cloth for export. D were trade union officials working for a rival firm that made yarn for cloth. The Union sabotaged the
claimant’s company in order to get a rise in pay. Held: the major purpose of the conspiracy was to promote the interest of the
defendants, not to damage the claimant’s interests)

2. Mogul Steamship Co v Macgregor Gow & Co

3. Sorrell v Smith per Lord Cave
When appropriate, the action of the defendant may not be to
promote its own interest, but that of other people and in this case,
they would not be liable for conspiracy because they seek to
protect the interest of other persons save themselves
4. Scala ballroom v Ratcliffe
NB: Also, being aware that damage to the claimant is an inevitable
consequence of their collective action cannot be taken to be
synonymous with having that consequence as one’s predominant
purpose of seeking to injure the claimant’s trade.
In other words, merely because the defendants are aware that it is
inevitable that their action may injure the claimant’s trade would
not substitute if their action was to protect or promote their own
interest
5. Lonrho ltd v Shell petroleum ltd
Later cases however held that an action for conspiracy will lie
against the defendants if unlawful means were used to further the
defendant’s interests
6. Lonrho plc v Fayed

c. Harm
The claimant must prove that he suffered actual pecuniary loss for
an action for conspiracy to lie
1. Lonrho v Fayed

d. No justification
There must be no justification for the defendant’s conduct

 INTERFERENCE WITH CONTRACTUAL RELATIONS

INDUCING BREACH OF
CONTRACT

This tort is committed if a defendant knowingly and intentionally

induces a 3rd party to break his contract with the claimant which
results in the claimant suffering a loss. Here, unlawful means is
irrelevant
1. Lumley v Gye (the opera singer)
2. Bowen v Hall
ELEMENTS
a. Breach
There must be a valid contract which is breached.
1. Torquay hotel co v Cousins
Thus, if the contract was void or voidable and therefore
unenforceable, then a putative procurement of its breach would
not a cause of action
1. Proform sports mgt v Proactive sports mgt
The point to note is that, there must be a valid contract which is
breached

b. Inducement
The valid contract which is breached must have been induced by
the defendant.
The inducement may be through direct or indirect means.
Direct inducement or persuasion e.g. Through better wage/salary
to cause a 3rd party to breach his contract with the claimant
1. Campden v Forcey
Or indirect means through for example intimidation (an act or
threat of an act that is unlawful, made with the intention of forcing
a person to do something that causes damage, injury or loss to
that person or others)
2. Rookes v Barnard
3. J.T Stratford v Lindley
NB: Mere advice which simply flags up, rather than creates, a
good reason to break a contract, ought not, to suffice
4. Torquay hotel co v Cousins
5. Camden v Forcey
Nor can there be said to be inducement if it is clear that the
contract breaker would have broken the contract in any event
6. Jones bros v Stevens

c. Knowledge and intention

The defendant must have known of the contract between the
claimant and the 3rd party and intended that it be broken
1. Mainstream Properties v Young
2. Jones bros v Stevens
Knowledge here is either actual or constructive, so that if the
defendant’s actions shows that he ought to have known of the
contract, then it would be sufficient such as when he intentionally
turns a blind eye to the contract
3. Emerald construction v Lowthian
 In the Mainstream case, the defendant knew of the contract but
had been lied to by the employees that it would not affect the
contract and he genuinely believed in it thus the court did not hold
against him because he did not intend to cause a breach of the
contract.

d. Damage or loss
The claimant must suffer loss as a result of the breach of the
contract by the 3rd party
1. Greig v Insole
Thus, if no damage or loss is suffered then the action fails
2. Jones bros v Stevens

e. No justification
There must have been no justification for the inducing a breach by
the defendant.
Thus, if the inducing the breach was justified, then the action
would fail.
1. Brimelow v Casson
2. Merkur Island Shipping Co. v Laughton

DEFENCE
Justification is a defence
REMEDIES
a. General damages
b. Injunction

The unlawful indirect interference with a person’s use or

NUISANCE enjoyment of land.
Nuisance can be classified into 3 categories; Public Nuisance,
Private Nuisance, Statutory Nuisance.
Let’s take each of them in discussion

PRIVATE NUISANCE

NB: Usually deals with disputes between neighboring landowners.

It may be defined as any activity or state of affairs causing a
substantial and unreasonable interference with a claimant’s land
or his use or enjoyment of that land.

ELEMENTS
a. Reasonableness
The crux of nuisance is the unreasonableness of the defendants
conduct.
The primary question thus is whether the defendant’s activity was
reasonable according to the ordinary usages of mankind living in
that particular society
1. Sedleigh-Denfield v O’Callaghan per Lord Wright

b. Damage
The claimant must have suffered some damage from the
defendant’s unreasonable conduct.
The damage caused by the nuisance must however be foreseeable.
NB: There’s a distinction made between nuisance that causes
material damage and those that cause Personal discomfort or
inconvenience.
NB: Where the unreasonable conduct of the defendant causes
material (sensible) damage to the claimant’s land (property), the
defendant would be liable
1. St Helens Smelting Co v Tipping
NB: Where the interference causes substantial personal
discomfort, the court will apply a reasonableness test to determine
whether it amounts to a nuisance.

A number of factors will be taken into account to determine

whether the defendant’s conduct was reasonable.
In determining the reasonableness, the courts look at both the
defendant's conduct and its effect on the plaintiff

FACTOR DETERMINING REASONABLENESS

a. Locality
Lands are demarcated for particular uses. The court thus considers
whether the defendant carries his activity in a suitable location or a
place designated for it.
Thus, where the defendant’s activity occurs in a locality which has
not been designated for it, then it may be unreasonable and
amount to a nuisance for example setting up a factory or
prostitution ring in a residential area.
1. Thompson-Schwab v Costaki (prostitution ring in a residential area)
2. Laws v Florinplace ltd (sex shop)
3. Aidoo v Adjei (chop bar near residential area)
4. Ball v Ray (stable in residential area)
5. Leeman v Montagu (poultry farm in residential area)
6. Halsey v Esso Petroleum (oil plant at night disturbing sleep with smell and noise)
Sometimes the claimant may have lived with the activity of the
defendant and not complained because he knew not of the
nuisance. But once the claimant becomes aware of the nuisance,
an action can lie
7. Sturges v Bridgman (the physician and the confectioner)
This means that if the defendant’s activity is suitable or not
unreasonable for the locality, then an action of nuisance cannot lie
 8. Moy v Stoop (the nursery school issue)
If the plan of the community is amended, to suit the activity if the
defendant, then his action may not be a nuisance
9. Gillingham Borough council v Midway dock co.
And that also means even if the plan is amended but does not suit
the activity of the defendant, he may still be liable for nuisance
10. Wheeler v JJ Saunders (pig niqqa)

b. Purpose of the defendant’s conduct

If the primary purpose of the defendant’s conduct was to injure or
vex the claimant, then his action in law would be unreasonable
1. Christie v Davey
2. Hollywood silver fox farm v Emmett
NB: However, if the act of the defendant is lawful, the motif for
doing such an act even if malicious, he would not be liable
3. Bradford corp v Pickles

NB: There are other important points that can be informative

when it comes to the test for reasonableness of the conduct of the
defendant. These are not in her slides but in Offei. Refer to Offei!

c. Duration
The shorter the duration of the interference, the less likely it is that
the use would be found unreasonable, provided the activity is
carried on with reasonable skill and care and the interference is
minimized
1. Andrea v Selfridge & co
NB: However, the temporary nature of the activity alone would not
be a reason why the activity of the defendant would be qualified
too trivial to constitute nuisance
2. De Keyser’s Royal Hotel Ltd v Spicer Bros

d. A Single or isolated event

Generally, a single or isolated event would not constitute nuisance
1. Bolton v Stone (the cricket case in negligence, remember?)
NB: However, if that single or isolated event is attributed to a pre-
existing state of affairs, then it may amount to a nuisance.
In this case, the event would be construed as a continuing state of
affairs
2. Midwood v Manchester corp
3. Spencer v Smee

e. Sensitivity
If a claimant puts his land to an extraordinary or sensitive use and
as a result suffers material damage then the defendant will not be
held liable.
In other words, if the damage is due to the sensitivity of the
claimant’s land, then no nuisance is committed.
A man cannot increase the liability of his neighbor by applying his
own property to special uses, whether for business or pleasure
1. Eastern & South African Telegraph Co v Cape Town
Tramways
2. Walter v Selfe
3. Robinson v Kilvert

f. Public utility
In deciding whether or not to grant an injunction, the court may
take into account public utility.
The more useful the defendant’s activity, the less likely it is that
the court will grant an injunction.
1. Miller v Jackson

WHO CAN SUE?

One with an interest in the land!
One with interest may be an owner in possession of the land, a
lessee under a lease, or a person having a statutory right of
occupancy
1. Read v Lyons
NB: A person having no legal, equitable or statutory interest in
property, such as a guest, a lodger or a member of the owner’s
family, cannot sue for private nuisance
2. Malone v Laskey
NB: Even an owner who is not in possession of the land cannot sue
if the action of the defendant occurred during the period of the
occupancy of the tenant or leasee
3. Cooper v Crabtree
NB: The owner not in possession can however sue if he can prove
that the damage caused by the defendant would have a lasting
effect to affect his revisionary interest upon reentry then he can
sue
4. Colwell v St. Pancras Borough Council

WHO CAN BE SUED?

Prima facie, the creator of the nuisance would be liable to be sued.
He is liable if it was committed by himself, or his servant and even
a trespasser, if he knew of the nuisance but did nothing to remedy
it.
1. Sedleigh-Denfield v O’Callaghan
The occupier is also liable for a nuisance arising out of the natural
condition of his land if he knows the risk and fails to take
appropriate action to abate the nuisance
2. Goldman v Hargrave
3. Leakey v National Trust
4. Smith v Littlewoods Ltd
5. Lippiatt v South Gloucestershire Council
The occupier may be liable even if he no longer occupies the land
from which the nuisance emanated so long as the nuisance was
caused whilst he was in occupation
6. Thomas v Gibson
NB: Generally, a landlord who has leased out his premises would
not be liable for any nuisance arising therefrom, unless;
i. The landlord granted the lease for a purpose that
constitutes nuisance
1. Tetley v Chitty
ii. The nuisance existed prior to granting of the lease and the
landlord knew or ought to have known of the nuisance
before letting
2. Brew bros v Snax ltd
iii. If the landlord reserved the right to enter and make
repairs.
Here he may be liable whether he knew of the defect that gave rise
to the nuisance or not
3. Wringe v Cohen

PUBLIC NUISANCE

Public nuisance is defined as an act or omission which materially

affects the reasonable comfort of a class of persons
1. Attorney General v PYA Quarries Ltd
NB: Public nuisance is a common law crime as well as a tort.
NB: In public nuisance there is no requirement that the claimant
must have an interest in land in the sense normally insisted upon
in private nuisance.
Examples of public nuisance at common law include such diverse
activities as carrying on trades which cause discomfort to others
2. Attorney General for Ontario v Orange Productions
Keeping a disorderly house, selling food unfit for human
consumption, obstructing the highways
3. Lyons v Gulliver,
Throwing fireworks about in the street and holding an ill-organized
festival.
4. R v Johnson
Dumping garbage in a near the residential area
5. C.F.C. construction company v Accra City Council

ELEMENTS
a. Nuisance that is widespread and indiscriminate in range
b. Damage
 STATUTORY NUISANCE

Nuisance designated so by statute.

Statute determines elements that constitutes breach

WHO CAN SUE IN PUBLIC/ STATUTORY NUISANCE

a. The attorney general, the local authorities
b. A claimant who suffers particular damage, over and above
the damage suffered by the rest of the public, may
maintain an action in nuisance.

REMEDIES
a. Damages
Recoverability of damages in private nuisance depends on
foreseeability by the defendant of the relevant type of damage
1. Wagon mound (No. 2)
The claimant may claim general damages and/or Specific damages
for personal injury or loss of property as a result of the nuisance
suffered.
As mentioned, damage in nuisance falls under 2 categories;
i) Damage maybe material injury to property
2. Tarry v Ashton
ii) Or to personal discomfort or inconvenience.
The claimant is entitled to monetary compensation for the damage
he has suffered as a result of the nuisance.
Thus, he may recover for physical damage to his property,
depreciation in the value of his property, loss of business from the
nuisance and personal injuries
NB: With damage to property, it is well established that damage to
one’s property or chattel when successful in an action for nuisance,
public or private can be remedied by awarding damages
3. Midwood & Co Ltd v Manchester Corpn
4. Halsey v Esso Petroleum Co Ltd (damages were awarded for damage to
washing on a clothes line)
NB: With regard to economic loss/ loss of business, it is clear, as
Lord Hoff mann recognised in Hunter, that consequential economic
loss in the form of the claimant’s inability to use the land for the
purposes of his business is recoverable.
5. Hunter v Canary Warf
6. Rylands v Fletcher
NB: With the recovery for personal injuries, personal injuries are
recoverable for public nuisance.
However, with private nuisance, personal injuries are not, per se,
recoverable in an action for private nuisance.
Nonetheless, an action will lie where the injury to the amenity of
the land consists in the fact that persons on it are liable to suffer
inconvenience, annoyance or illness.
The point is one of emphasis that personal injury, to be
recoverable, must be seen in terms of a diminution in the capacity
of the land to be enjoyed.
That being so, where defective wiring in a neighboring house
causes a fire that spreads to the claimant’s house, the claimant
should be allowed to recover not only for the damage caused to
his house but also for any burns he sustains because it is not only
the land, but also the amenity of the land (characterised in
terms of the ability to live there free from burns) that has been
affected
7. Hunter v Canary Warf

b. Injunction
This is discretionary by the court and most of the cases mentioned
fall here.

c. Abatement of nuisance
This can include self-help to an extent

DEFENCES
a. Public Utility (public interest):
The more useful the defendant’s activity, the less likely it is that
the court will grant an injunction.
1. Miller v Jackson
However, the mere fact that the defendant’s action is useful would
not in itself be a defence
2. Adams v Ursell
3. Bellow v Cement ltd

b. Statutory authority
The fact that the activity giving rise to the interference complained
of is authorized by statute seems to be an almost absolute
defence.
1. Allen v Gulf Oil refinery
However, if the statute merely confers permissive power, then the
power must be exercised so as not to interfere with private rights.
2. Metropolitan Asylum District Managers v Hill

c. Prescription
This lies where a defendant can show that he has acquired a right
to commit the nuisance.
To acquire this right, he must have
 i) continuously committed it for at least 20 years before
the action;
ii) he must have done it openly,
iii) and the claimant must be aware during this relevant
period.
The time however does not begin to run until the claimant is aware
that the nuisance is in existence
1. Sturges v Bridgman (the physician and the confectioner)
NB: However, this defence is not available in respect of public
nuisance.

d. Consent
Consent can also operate as a defence. However, it must not be
induced by fraud
1. Kiddle v City Business property

e. Contributory negligence
Contributory negligence can sometimes be allowed as defence in
public nuisance cases
1. Trevett v Lee dictum

d. Mitigation
Where the claimant can reasonably mitigate the damage or abate
the nuisance, but didn’t, it may operate as a defense but this
would not completely absolve the defendant from liability
Also, if the defendant can prove that he has abated the nuisance,
then that can be a defence against the tort

ESCAPE OF Deals with the obligation which the law casts on a person who
lawfully brings on his land something which, though harmless
DANGEROUS THINGS whilst it remains there, will naturally do mischief if it escapes out
FROM LAND of his land.
the person who, for his own purposes brings on his land, and collects and
RYLANDS V FLETCHER keeps there anything likely to do mischief if it escapes, must keep it in at his
peril, and, if he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape
1. Rylands v Fletcher per Blackburn J
Lord Cairns on appeal added that the defendant is only liable if, in
bringing it there, he is making a non-natural use of the land.

ELEMENTS
a. Non- natural use of the land
Bringing the land into some special use, which brings with it
increased danger to others, and must not merely be the ordinary
use of the land or such use as is proper for the general benefit of
the community
1. Rickards v Lothian per Lord Moulton
This evidently means that if the land is not put in a non-natural use
then the rule would not apply
2. Reads v Lyons (using land for industrial duty in an industrial area)
3. Rainham Chemical Works Ltd v Belvedere Fish Guano Co
(manufacturing of ammunition in wartimes is not a non-natural use of land)

4. Vanderpuye v Pioneer shoe factory ltd (it was a warehouse, keeping shoes and
raw materials was not a non-natural use of the land)

5. British Celanese v AH Hunt

b. Things
Things within the rule are things likely to do mischief, if they
escape.
It means that the things need not be dangerous in themselves but
must have the character of causing danger if they escape or are on
their own.
E.g. of things include water, sewage, fires deliberately made or
brought onto the land or arising accidentally in a dangerous object
which is likely to catch fire easily or to do damage if it escapes
1. Mason v Levy Auto parts of England ltd
Gas, electricity, gas oil, acid smuts, fumes, explosives, and decayed
wire rope, colliery spoil, trees, vibrations, a flagpole, a chair-o-
plane
Even caravan dwellers who committed nuisances
2. Attorney General v Corke (the caravan dwellers case)
Thus, it seems fair to say that only tangible things are likely to
come under this rule.

c. Accumulation
The thing must have been accumulated or brought unto the
defendant’s land for the rule to apply.
1. Jones v Festiniog railway (the locomotive engine)
2. Musgrove v Pandelis (that a car can amount to a dangerous thing)
Such accumulation must be voluntary on the part of the defendant
such that things that naturally grow or accumulate on the land
would not suffice e.g. grass, trees etc.
3. Pontardawe Rural Council v. Moore-Gwynne
4. Dublin v. Ghana Housing Corporation (def. fearing flooding, redirected rain course
which ended up flooding claimants house who was downhill and took no such precaution. Court held that there was no
accumulation)

5. Smith v Kendrick (the water was naturally accumulated and was not voluntarily brought there by def)
6. Leakey v National Trust
7. Giles v Walker
NB: In case of things which naturally accumulate on the land, the
claimant must look to negligence or nuisance and not Reylands v
Fletcher since the defendant is under a duty to do what was
reasonable to prevent the risk known or foreseeable damage to
the other person or his property
8. Goldman v Hargrave

d. Escape
There must be an escape of the thing from the land of origin i.e.
the defendants land or area under the defendant’s control or
occupation to a place outside his occupation or control.
This means that if the thing does not escape from the land of
origin, the rule would not apply
1. Read v Lyons per Viscount Simon (the explosives caused the injury on the def. land)
2. Ponting v Noakes (the horse reached over the def. land, ate leaves and was poisoned. Rule didn’t apply cos
the tree did not extend beyond the def. land)

e. Damage
The thing escaping must cause damage for an action to lie under
the rule.
The defendant is liable for any injury to land as a result of the
escape of the thing as well as consequential damage.
1. Jones v Festiniog railway (the locomotive engine)
2. Musgrove v Pandelis (that a car can amount to a dangerous thing)
NB: Damage must however must be foreseeable.
The defendant must have known or ought reasonably to have
known that those things might, if they escaped, cause damage of
the relevant kind
3. Cambridge Water Co v Eastern Leather Works

WHO CAN SUE

The plaintiff must have an interest in the land to sue.
1. Read v Lyons
2. Weller v Foot & Mouth Disease Research Institute (doubt was
expressed which suggests that a plaintiff with no proprietary interest in the land on which the thing which caused the damage
escaped, cannot recover)

However, there are some cases where a plaintiff can bring an

action even though he has no interest in the premises and this
usually applies in highway situations.
3. Halsey v Esso Petroleum
4. Perry v Kendricks Transport

REMEDIES
a. Damages
Damages are recoverable as a remedy under this rule.
Damages for damage to land/chattel as the result of the escape
1. Read v Lyons
Damages for personal Injuries are also recoverable
2. Hale v Jennings Brothers
3. Shiffman v Order of St John
4. Perry v Kendricks Transport Ltd
5. Rigby v Chief Constable of Northamptonshire

DEFENCES
a. Consent
This must be voluntary.
If the plaintiff expressly or impliedly consents to the accumulation
of the thing which escapes, then the defendant would not be
 liable.
There would however be liability where the claimant though given
consent can prove negligence on the part of the defendant.
1. Peters v Prince of Whales theatres
2. Kindle v City business properties

b. The deliberate unforeseeable act of a third part

Liability is excluded if the escape is caused by the deliberate
unforeseeable act of third parties
1. Perry v Kendricks Transport Ltd (an unforeseen child opened the lid of a petrol tank and
threw in a match which caused damage. Def. not liable cos they couldn’t have foreseen or prevented the act)

2. Box v Jubb
3. Rickards v Lothiam
However, if the defendant could have foreseen or prevented the
act of the third parties and did not, then he is liable
4. Richards v Lothian
5. Northwestern Utilities Ltd v London Guarantee and
Accident Co

c. Act of God
If an escape is caused, through natural causes and without human
intervention, circumstances which no human foresight can provide
against, and of which human prudence is not bound to recognize
the possibility, then it is said this defense is available.
1. Tennent v Earl of Glasgow per lord Westbury
2. Nichols v Marsland
NB: Baron Bramwell gave the guideline for the defense as an act of
God is one which is extraordinary.
It is extraordinary if it rarely happens, for example once in a
century or in 50 or 20 years or more. i.e. These are occurrences
that rarely happen
3. Ruck v Williams per Baron Bramwell
4. Greenock Corp v Caledonian Rly (an extraordinary and unprecedented rainfall causing
flooding was held not to be an act of God because the flooding must have been anticipated and as such anyone who interferes
with the water course would be liable if he didn’t provide an alternative route for the water)

d. Default of the claimant

Blackburn J in Rylands v. Fletcher stated that: the defendant can
excuse himself by showing that the escape was owing to plaintiff's
default; or perhaps, that the escape is the consequence of Vis
Major, or the act of God.
Thus, if the damage has been caused by an act of or fault of the
claimant himself, then he has no remedy.
1. Ponting v Noakes
2. Eastern and SA Telegraph Co Ltd. v Cape Town Tramways
Co Ltd

Defamation is a generic term given to Libel and Slander.

DEFAMATION It provides a remedy with which a person can protect his
reputation from attack. Or it protects the claimant’s interest in his
reputation.
Defamation also protects the right to freedom of speech.
NB: Defamation can be defined as anything which tends to lower
the integrity, status, pride, perception of the claimant in the
estimation of a right-thinking members of the society.
A person is thus defamed if one does anything to expose another
to hatred, ridicule or contempt.
1. Sim v Stretch (C had a maid for a limited time, who re-entered the service of D. Upon the maid’s arrival, D sent a
telegram to C asking C to send the maid her possessions, the money C borrowed from her and her wages. C sued for libel claiming
that the telegram was defamatory in nature because it implied financial difficulties on C. Lord Atkin thus in deciding whether the
words were defamatory stated that the test in deciding whether words or conduct of a person are defamatory, we need to ask if
the words tend to lower the C in the estimation of right-thinking members of the society generally.

2. Parmiter v Coupland (C was a mayor of Winchester. A series of libels were published of him in a local
newspaper implying that he was corrupt and ignored his duties as mayor and justice of the peace of is borough. The court thus
stated that a defamatory statement is one which is calculated to injure the reputation of another, by exposing him to hatred,
contempt or ridicule.

3. Berkoff v Burchill (D were a journalist and a newspaper publisher. In one review, d described C as inter ala as
being notoriously hideous looking and in another as only marginally better looking than the creature Frankenstein. C claimed that
the statements were defamatory and exposed him to ridicule and caused people to shun him. The court held that the statements
by D were defamatory in nature)

DISTINCTION BETWEEN LIBEL AND SLANDER

At common law, there are two types of defamation; Slander and
Libel.
Libel is an attack on reputation in a permanent form.
It is generally committed in writing or printing of words contained
in a newspaper, book, movie, photograph or statute.
1. Youssoupoff v MGM Pictures Ltd (D made a film which falsely imputed that the claimant
had been raped and seduced by Rasputin. The defamatory matter was in the pictorial. The defamatory matter was in a pictorial
part of the movie and the court held that to be libel)

Slander on the other hand is defamation in temporary or transient

form. It is committed by speech or gestures.
NB: There are two main juridical differences between Libel and
Slander;
a. Libel, which tends to provoke a breach of the peace, is a
crime. Thus, libel is a crime as well as a tort. Slander is only
a tort.
b. Libel is actionable per se whereas slander is subject to
some exceptions, actionable on proof of actual damage

EXCEPTIONAL CIRCUMSTANCES WHERE SLANDER

IS ACTIONABLE PER SE
NB: Slander is generally not actionable per se.
However, slander is actionable per se in the following cases, and so
will have the same effect as libel;
a. Imputation of a crime
It is slander actionable per se to allege that the claimant has
committed a criminal offence punishable by imprisonment, but a
specific offence need not be mentioned.
1. Gray v Jones (D called C a convicted person. The court held that the words were in fact actionable without proof
of special damage because the words could exclude C from the society and make him subject to ridicule, hatred and contempt)

Thus, it would be actionable per se to say “I know enough to put

you in gaol” or “I know enough of your illegal activities which can
put you behind bars for life.”
This is because such allegations can expose the claimant to social
ridicule and cause other persons to shun and avoid him
2. Webb v Beavan
NB: If the perpetrator, having been arrested, can only be punished
by a fine for the offence in question (and not by imprisonment),
the imputation of the commission of the crime remains outside the
exception.
3. Hellwig v Mitchell

b. Imputation of a contagious disease

It is actionable per se to allege that the claimant is currently
suffering from a contagious or infectious and repulsive disease like
Aids, Leprosy, since this would tend to cause others to shun or
avoid him.
1. Bloodworth v Gray (AIDS)
2. Taylor v Perkins (leprosy)

c. Imputation of unchastity or adultery to any woman

It is actionable per se when the defendant uses any words, which
imputes unchastity and adultery to any woman.
1. Hotchand v Gentleman Salam per Djabanor J
Imputation of unchastity has also been held to include the
imputation of lesbianism
2. Kerr v Kennedy (D said that C used to live with women and that she was a lesbian. C sued for defamation and
court held for C that calling a woman a lesbian may be lascivious)

d. Imputation of unfitness, dishonesty or incompetence

with respect to one’s profession/trade
It is actionable per se when the Defendant imputes unfitness,
dishonesty and incompetence to a professional claimant with
respect to his profession, trade, calling or business. E.g. that a
surgeon is incompetent; that a banker is fraudulent; that an
engineer has no technique; that a lawyer knows no law; that a
trader is insolvent.
NB: The words are actionable even though they are not said of the
claimant in the actual conduct of his profession so long as the
imputation they carry is designed to disparage him in his
particular calling.
Words are also actionable per se if they impute some want of
integrity or some corrupt or dishonest conduct in the office,
whether an office of profit or of honor
1. Maccaba v Lichtenstein

SPECIAL DAMAGE IN SLANDER

NB: In cases of slander which are actionable per se, the claimant
would be able to claim only general damages.
To claim more than general damages (special damages), the
claimant cannot recover merely on account of his loss of
reputation.
Claimant will be able to recover only if he can prove the he has
suffered some special (material) damage. E.g. loss of employment,
the refusal of persons to enter into contracts with the claimant,
loss of client etc.
1. Coward v Wellington (loss of employment)
2. Storey v Challands (refusal of persons to enter contracts with C)
NB: The loss of mere companionship or friends in the society can’t
be brought under special damages since it has no material value.

ELEMENTS OF DEFAMATION
In a defamation action, the claimant must be able to establish the
following elements;
a. The words were defamatory
b. The defamatory words referred to the claimant
c. The words must be published

Let’s take each of the elements in discussion;

THE WORDS WERE DEFAMATORY

A defamatory statement may be defined as one which tends to
lower the claimant in the estimation of right-thinking members of
society generally
1. Sim v Stretch
This may be done by exposing the claimant to hatred, ridicule or
contempt
2. Parmiter v Coupland
3. Berkoff v Burchill
Or causing people to shun or avoid him or to discredit him in his
office, trade or profession
NB: It is clear that being made a laughing stock is not sufficient as it
is an injury to feelings and not reputation
4. Blennerhasset v Novelty Sales Services Ltd (a newspaper advertisement was
headed ‘Beware of Yoyo and went on to imply that C, a worthy man, had now been placed under supervision in a quiet place in
the country by reason of his fascination with his Yoyo. Although the C, a stockbroker, showed that his arrival at the Stock
Exchange on the day after the publication was greeted with jeers, ribaldry and laughter, the statement was held not to be

defamatory.

WORDS OF ABUSE/ VULGAR ABUSE

It seems well established that words spoken as mere vulgar abuse,
insult, or vituperation are not actionable in slander.
But this is not entirely accurate.
NB: Whether particular words constitute slander or mere abuse
depends upon the circumstances in which they were spoken.
Thus, e.g., if A calls B a dirty whore in the heat of a violent quarrel,
this may be mere vulgar abuse and not actionable. However, the
same words spoken in cold blood would be slander.
The onus therefore is on the defendant to satisfy the court that the
words were of heat and anger, that they were understood by
persons who were present to be such.
1. Fields v Davis (D called C, who was a married woman, a tramp. It was held that the words were not defamatory
because they were uttered by D in a fit of temper and were understood by those around as being mere vulgar abuse)

2. Bakare v Ishola (there had been a fight preceded by an altercation between two parties. In the heat of anger D
had, in the presence of on-lookers, called C a thief; ex-convict, and had just come out of prison. The court held that the words
complained of were vulgar abuse, as they had been spoken while the parties were exchanging words which led to blows)

3. Bonsu v Forson (C and D, who had been very close friends, lost their temper and quarreled heatedly. C alleged
that D called him a thief, a hopeless lawyer and if it had not been for one Owusu Afriyie, he would have no clients and a hopeless
MP. It was held that the words were capable of a defamatory meaning but as they had been spoken in the heat of passion,
argument and so on the words are not construed as defamatory)

NB: If the defamatory words are written or printed, but not

spoken, the defendant cannot argue that it is vulgar abuse, since
he would have had time to reflect upon what he was writing.
4. Benson v West African Pilot Ltd (it was reported n D’s newspaper to the effect that C was
an idiot and a simpleton. D contended that there were mere vulgar abuse and not actionable. The court rejected this assertion
and stated that there is a distinction in law between spoken vulgar abuse and written one. The former is not actionable while the
latter is)

Thus, vulgar abuse would not be actionable but words of abuse in

cold blood would be defamatory in nature
5. Ibeanu v Uba (D’s goat was stolen. C passing by went to sympathize to D whom in the presence of witness called
C a thief and that C had brought thieves with whom they stole D’s goat and that he has now come back to express condolence.
The court held that these was not mere vulgar words but contained actionable slander since it was clear from the evidence that

there was no quarrel between the parties)

6. Bell v Stone (calling someone a villain is defamation)

7. M’gregor v Gregory (black sheep)
8. Alexander v Jerkins (a habitual drunk)

WORDS OF OPINION
A statement may be defamatory, even though the maker states it,
not as fact, but as mere opinion
1. Braddock v Bevins (D’s election address at a local election was the subject of qualified privilege in a
defamation action)

Here too, one must take into account circumstances of time and
place when the statement was made
2. Dolby v Newnes (a statement at a private dinner party, although not defamatory, may become so if repeated
in a magazine)

3. Slazengers Ltd v C Gibbs & Co (it was defamatory to state during the war with Germany that
the claimants were a German firm that was likely to be closed down)

INNUENDO
The initial question in any defamation action is whether the words
complained of are capable of bearing a defamatory meaning.
Quite apart from direct attacks on the claimant’s reputation,
defamation may also include implied or veiled attacks, which are
generally referred to as innuendo.
Sometimes the claimant argues that the words spoken by the
defendant bears an inner meaning, which renders them
defamatory.
Thus, even though the words are not defamatory on the surface,
they are so because of an innuendo (inner meaning).
This may depend on factors known to the recipient of the
statement at the time of publication and this is something the
claimant must prove.
NB: However, if a defamatory meaning is derived from words
themselves, this is not an innuendo.

TYPES OF INNUENDOS
In law of defamation, there are 2 types of innuendos:
• True or Legal innuendo
• False or popular innuendo

TRUE / LEGAL INNUENDO

This arises in circumstances where the claimant alleges that the
statement is defamatory because specific facts known to the
reader gives to the statement a meaning other than, or additional
to, its ordinary meaning.
Thus, a claimant who pleads true or legal innuendo contends that
although the words used are not defamatory on their face, they do
convey a defamatory meaning to persons to whom they are
published, because of certain special facts or circumstances not set
out in the words themselves but known to these persons.
NB: It arises when the words are read in conjunction with facts not
stated but known to the hearer.
NB: Thus, the hearer must know the extrinsic facts at the time the
words are published to him and not learn the facts later
1. Grapelli v Derek Block (Holding) ltd (C, a renowned musician employed D to promote
him. They purported to arrange various concerts but did so without his authority. When they were canceled, D told the venue
owners that they were cancelled because C was seriously ill and it would be surprising if he ever toured again. About 5 months
later, D advertised a number of concerts to be given by C on dates which included some of the dates on which the canceled tours
were to have been taken. C then found out about the statements by D and claimed damages claiming the facts gave rise to an
innuendo that D had given a false reason for cancelling the concert which they knew to be false. The court allowing the appeal by
D held that a claimant cannot rely on events subsequent to publication to establish the words referred or would have referred to
him)

The claimant must prove that those facts were actually known to
some people
2. Fulham v Newcastle Chronicle and Journal Ltd (C had been appointed
deputy headmaster of a school. D published an article claiming that C was a former catholic priest who had left his parish and later
married. The court held that where an innuendo is relied upon, C must specify the persons who are said to know the special facts
that would lead them to the identification or meaning relied upon)

A true innuendo arises solely from the facts or circumstances,

which are not apparent from the words themselves but which give
the words a meaning they would not ordinarily have
3. Cassidy v Daily Mirror Newspapers Ltd (D published a photograph of Mr Cassidy
with a woman, implying that they were engaged. C, wife of Mr. Cassidy sued, saying that this gave her acquaintances the
impression that she was not married to Mr. Cassidy, and so it amounted to a charge that she was living in sin with him. D argued
that, as they had not mentioned C, they could not be said to have defamed her. It was held that to those who knew Mrs. Cassidy,
the photograph would have conveyed the meaning she argued for, and so she was defamed in the eyes of those people)

4. Tolley v Fry & Sons, Ltd (it was implied in a cartoon forming part of an advertisement that a famous
amateur golfer had, by consenting to the use of his name, compromised his amateur status. In fact, he had not consented, and
knew nothing of the advertisement until it appeared. There was held to be libel by innuendo)

5. Mirror Newspapers Ltd v Fitzpatrick (the defamatory statement was that an actress
had attended a social function. But while innocent on its face, the statement was capable of conveying, to those who knew the
further facts that the actress had said she was too ill to take part in the production of a film at that time. The defamatory
implication, therefore, was that the actress had lied about the state of her health)

FALSE / POPULAR INNUENDO

Here the claimant contends that the words are defamatory, not
because of any extrinsic facts or circumstances known to those to
whom the words were published, but because of some defamatory
inference that reasonable persons generally would draw from the
words themselves.
The words may have a meaning beyond their literal meaning which
is inherent in them and arises by inference or implication.
1. Lewis v Daily telegraphy (two newspapers published a story in which it was reported that officers
of the London Fraud Squad were inquiring into the affairs of the R Co and its subsidiary companies. The House of Lords considered
three possible meanings: first, that there was an investigation in progress; secondly, that the claimants were suspected of fraud;
and, finally, that the claimants were guilty of fraud Lord Reid held that in determining the meaning to be given to the words the
question to be asked was what meaning would be conveyed to the ordinary person. Such a person does not live in an ivory tower
and he is not inhibited by a knowledge of the rules of construction. So, he can and does read between the lines in the light of his
general knowledge and experience of world affairs. Their Lordships held that only the first two meanings were possible. It is
impossible in this case, they said, for the statement that an enquiry was taking place to convey the impression that the subject of
the enquiry was guilty of fraud. Acceptance of the second meaning, that the claimants were suspected of fraud, involves a false
innuendo. No extrinsic evidence is required for this meaning to be attributed; it is simply an implication that can be drawn or an
impression that may be gained from a reading of the words themselves)

THE WORDS REFERRED TO THE

CLAIMANT
In order to be actionable, the defamatory words must be
understood to be published of and concerning the claimant i.e. the
words complained of must refer to the claimant.
1. Knuppfer v London Express Newspapers (C was the head of the British branch of
the Young Russian Party. D published an article alleging association between Hitler and the party. Whilst C was not specifically
mentioned, witness at trial intimated that they understood the article referred to C. On appeal, the court held that it is an
essential element of defamation that the words complained of should be published of the claimant and as such the words cannot
be said to refer to C)

NB: The claimant need not be mentioned in the statement, nor

need everyone reading it know that he was referred to.
It suffices if ordinary sensible people, proved to have special
knowledge of the facts, might reasonably believe that the
statement referred to the claimant.
i.e. The identification of the claimant depends upon whether
reasonable persons would believe that the words complained of
referred to him.
2. Morgan v Odhams Press Ltd (D was a journalist collecting material on a gang story, whereby he
put a key witness under his surveillance while investigations were ongoing. The witness left D’s lodging to spend some days with C
with whom she has been seen in public. The witness returned to D’s lodging after some of the gang members had been convicted.
D then published his story which included a photograph of and with the witness’s name indicated. A later article suggested that
the witness was kidnapped by gang members however did not mention the claimant by name or description. C sued for libel
arguing that by innuendo the article associated him with the gang and thus the kidnapping. The house of lords thus held that one
must first consider the nature of the article and the class of persons likely to read and then determine the impression the article
would have had ordinary sensible reader who read the article casually and not in expectation of precision)

Also, if a statement does not refer to the claimant but a

subsequent statement sheds light on the first and makes the
identification clearer then it may be taken into account
3. Hayward v Thompson (words used in the first were defamatory of C, and were understood to be aimed
at him (even though they did not expressly identify him), the judge is allowed to look at the second publication to see to whom
the first publication referred)

UNINTENTIONAL REFERENCE TO THE CLAIMANT

The claimant may be defamed although the defendant did not
intend it.
NB: The defendant need not intend to refer to the claimant i.e. it is
not necessary to show that the defendant intended the statement
to be defamatory of the claimant, or even knew of the claimant’s
existence.
1. Hulton v Jones (D published a story of the discreditable doings in Dieppe of a fictitious character called Artemus
Jones, who was said to be a churchwarden in Peckham (a suburb of London). C who had been baptized Thomas Jones but called
himself Thomas Artemus Jones, abbreviated to Artemus Jones, was a barrister not a churchwarden; he did not live in Peckham,
nor had he visited Dieppe. He had, however, contributed articles to the very newspaper, which published the fictitious story. He
sued its proprietors for libel and the House of Lords upheld the decision on appeal)

NB: It is no defence that the defendant intended to refer to

another person.
The defendant may be liable where his statement is not true of
one person but is, in fact, defamatory of another person of the
same name and description who was not known to the defendant
and who suffered injury as a result of the publication of the
statement
2. Newstead v London Express Newspapers ltd (D in their newspaper stated
that Harold Newstead, a thirty-year-old Camberwell man had been convicted of bigamy which was true of a Camberwell barman
of that name, but not of C, a barber, who was also aged about 30 years, and lived in Camberwell. C contention that the words
were capable in law of being understood to refer to him was upheld)

DEFAMATION OF A CLASS OF GROUP

Generally, a group of people cannot be defamed as a class and as
such it is only individual members who may have an action.
NB: Where a statement is derogatory of a group of people, the
question of whether any member may sue depends on such
matters as the size of the class impugned and the generality of the
charge made.
The smaller the class, and the more particular the imputation, the
more readily may the ordinary reasonable person infer that the
claimant (among others) was referred to.
1. Knuppfer v London Express Newspapers per Lord Porter (C, a
Russian refugee, was a member of the Young Russian Political Party, which had 24 members in Britain and several thousand
members abroad. The article alleged that this group was Nazis. It was held that the claimant could not show that the article was
capable of referring to him as it referred mainly to the activities of the group overseas and so his action was dismissed.)

2. Foxcroft v Lacy (where proceedings were pending against 17 persons, it was held that one of them could sue a
third party who said of them all that these defendants helped to murder HF)

NB: Even where the class is too large to permit every member to
sue, an individual within the class may still be able to sue if other
facts contained in the statement in question may narrow the class
sufficiently for him to be defamed and, if the claimant can show
that the statement was especially referable to him, he may sue
3. Le Fanu v Malcomson (D published an article suggesting that in some of the Irish factories cruelties
were practiced upon employees. There were circumstances in the article as a whole, including a reference to Waterford, which
enabled the jury to identify C’s Waterford factory as the one at which the article was aimed. C’s action succeeded)

The general rule thus laid down in Knuppfer is that where a class of
persons is defamed, no one person can succeed, unless he proves
that the defamatory statement
a. was capable of referring to him
b. was in fact understood to refer to him

DEFAMATION OF CORPORATE BODIES

Logically speaking, the reason why a class of persons cannot be
defamed and as such cannot have an action save the individual
member in the group is because in an action, the law only
recognizes “persons.”
Persons may be natural persons (human beings) or artificial
persons (e.g. a company).
Generally, only persons may sue or be sued.
A corporation is a person in law and has therefore a reputation of
its own.
Thus, companies may sue in defamation
1. Orme v Associated Newspaper Group (a newspaper alleged misconduct against the
Unification Church (the Moonies). The church’s leader in England, called Orme, was not mentioned in the piece, but said that it
could be taken to mean that he knew about, and condoned the conduct complained of. It was held that the statement was
capable of being read that way by reasonable readers. Thus, a statement that a corporate body is poorly or dishonestly managed
may reflect on its officers and be actionable by them)
NB: But local authorities or departments of central government
cannot sue in defamation though.
This is seen as more in pursuance of public policy since it would be
unduly inhibiting on freedom of speech in a democracy to allow
such bodies to sue to protect their governing reputation
2. Derbyshire County Council v The Times Newspapers Ltd

THAT THE WORDS WERE PUBLISHED

The claimant must prove that the words of which he complains
were published.
NB: Published here means that the words were communicated by
the defendant to, at least, one person other than the claimant
himself.
This is because the tort of defamation protects a person from
injury to his reputation among other people, and not from injury to
feelings about himself.
1. Pullman v Walter Hill and Co per Lord Esher (C were members of a
partnership firm. They owned property which they had contracted to sell. In the meantime, they let a hoarding which was erected
on the property to D. A dispute arose b/n D and the purchasers of the property regarding the hoarding. D wrote a letter addressed
to C alleging they had no right to let the hoarding due to the sale of the land. C claimed that the letter written to them was
defamatory. The letter was dictated by the managing director of D to a clerk, who wrote them out in a type-writing machine. The letter was then copied by an
office-boy in a copying-press. Upon reaching its destination, it was read by two other clerks. The key issue was whether these facts amounted to a “publication” of
the letter for the purposes of libel. C contended that there was a publication to the respective clerks in each offices The Court held that the letter must be taken to
have been published both to the C’s clerks and D’s clerks and that on neither occasion was the publication privileged. Lord Esher held that there is a “publication”
of a letter wherever the writer of the letter shows it to any person other than the person to whom it is written. If some individual wishes not to publish a letter,
where the letter contains defamatory matter, he must either keep it to himself or send it himself straight to the person to whom it is written.

Because of this element, it would be important to know when the

defendant who probably intended to address his remarks to the
claimant alone can be held liable for the fact that 3rd parties have
learnt of the defamatory statement.
NB: Thus, the principle is that if the defendant intended that the
remarks be published to the 3rd parties or ought to have foreseen
such publication, then he is liable and not otherwise. i.e. the
defendant is not responsible for publication to a person to whom
he did not intend to publish and to whom he could not reasonably
have foreseen the words would be published
2. Theaker v Richardson (that it is to be expected that a husband might open an unstamped brown
envelope lying on the doormat of the matrimonial home and looking like a circular, even though it is sealed and addressed to his
wife)

3. Huth v Huth (D sent an allegedly defamatory letter in an unclosed envelope to his 4 children implying that there
were illegitimate. The letter was taken out by the butler in breach of his duties out of curiosity and read. C contended that D knew
that the document was likely to be taken out of the envelope and read and as such must be responsible for it. The court on appeal
held that it could not be presumed that such letter would be opened in the ordinary course of business and as such D could not be
taken to have known that the letter would have been taken out of the envelope and as such no publication)

4. Powel v Gelston (he is not liable where a father wrongfully opens his son’s letter)
5. White v J & F Stone (A defendant is thus not liable for an ‘unsuspected overhearing of the words’ spoken
by him to the claimant)

NB: However, a correspondent should expect that clerks of a

businessman-claimant might, in the ordinary course of business,
open letters addressed to him at his place of business but not
when they are marked ‘personal’, ‘private’, etc.
He is therefore responsible for the publication to them where the
correspondence is not so marked.
6. Pullman v Walter Hill and Co
NB: If the defamatory words are written on a post card or
contained in a telegraph, there is a rebuttable presumption that
they are published to the post office officials and to telegraph
operators
NB: Communication of defamatory matter by a husband to his wife
and vice versa is not publication.
The reason is that husband and wife are treated as one person
7. Wennhak v Morgan
NB: But the communication by a third party to one spouse of
matter defamatory of the other spouse or the communication to a
third party by one spouse of matter defamatory of the other is
publication.
8. Watt v Longsdon
NB: There is no publication if the defamatory words could not be
understood by the person to whom they are addressed, e.g. where
the latter is too blind to read or is illiterate, or is too deaf to hear,
or where he does not understand the language in which words are
written or spoken

NB: For the purpose of publication, the author of defamation is

liable in respect not only of the first publication (which is usually
intended) but all other republications that he may reasonably
expect.
Thus, a person who writes to a newspaper editor hoping his letter
will be published may well become liable for the mass circulation
which the published letter would receive.
NB: Every publication or republication is a new defamation and
thus, the person who republishes is liable in addition to the
primary liability of the original publisher so that the writer of the
article, the editor, the publisher, the printer, and even the
newsagent and street vendor
1. Truth (NZ) ltd v Holloway
Nor is it a defence that in publishing a defamatory statement the
defendant was merely repeating what someone told him
2. M’Pherson v Daniels per Bayley J
However, recently, it has been held that a person is only liable for
the damage attributable to further publication by third parties if
such extended publication was a natural and probable
consequence of the defendants own initial publication
3. Slipper v BBC (Slipper was a detective superintendent. He complained about a film made and broadcast by the
BBC, which dealt with his abortive efforts to bring back one of the Great Train Robbers, Ronnie Biggs, from Brazil. Slipper claimed
that a press review of the film and its later public broadcast portrayed him in a defamatory light, and that the BBC were
responsible for the repetition of the libel in the newspaper reviews of the film. The Court of Appeal treated the matter as one of
causation and remoteness, rather than turning on any particular rule relating to defamation. Did the reviews amount to a novus
actus interveniens, breaking the chain of causation? If repetition of the libel was the natural and probable consequence of the
original publication, the original publisher would remain liable)

The Court of Appeal refined the test to include consideration of

whether the defendant actually knew, or whether a reasonable
person in the defendant’s position would have realized, that there
was the significant risk that his remarks were likely to be reported
more widely.
If these tests were satisfied, there would be no injustice in making
the defendant liable for harm caused by such extended publication
 4. McManus v Beckham

DEFENCES
a. Unintentional defamation
Generally, liability for publication of a defamation is a strict liability
and as such an unintentional defamation would not absolve the
defendant from liability. However, the law in UK has introduced to
the effect that if the defamation was innocent and unintentional, a
defendant may escape liability if he is willing to publish a
reasonable correction and apology called offer of amends which
may be done even before the action commences.

b. Consent
The consent, express or implied, of the person defamed is a
complete defence
1. Chapman v Ellesmere
2. Cookson v Harewood

c. Justification (truth)
At common law, truth is a solid defence.
Truth provides a defence on the question of fact;
i. If the statement made about the claimant is true, then
there can be no action for defamation.
It would thus be complete defence to an action for libel or slander
that the words complained of were true in substance
ii. The defendant must prove that the statement is true in
substance in each and every respect and fact, and if, an
innuendo has been pleaded, the truth of that must also be
proved.
1. Alexander v North Eastern Rly co (C had been convicted of riding a train without
having purchased a valid ticket which had a penalty of fine and imprisonment of 14days if he defaulted. D published a
notice that C was convicted and issued a fine or 3weeks imprisonment if in default. C alleged that D has committed libel
by describing the penalty inaccurately. D argued that the conviction was described with substantial and sufficient
accuracy and the words so as they differed in literal meaning from the conviction was not libelous. The court held that
the substance of the libel was true and as such held for D)

iii. The onus of proof is on the defendant on the balance of

probabilities that the statement was true, and not for the
claimant to show that the statement was false (or true).
iv. The fact that the defendant was actuated by malice is
irrelevant if the statement was true.
This is because the law will not permit a man to recover damages
in respect of an injury to a character which he does not possess.
1. M’Pherson v Daniels per Littledale J
v. Where the defendant repeats a defamatory statement, he
has heard from another source, he must prove that the
statement is true and not simply that it is true such a
statement was made to him
1. Truth (NZ) ltd v Holloway

d. Fair comment
Designed to protect statements, which the defendant makes, but
which are of opinion on matters of public interest and comment is
based on true facts.
1. London Artists Ltd v Littler (Lord Denning referred to a matter of public interest as whenever it is
such as to affect people at large, so that they may be legitimately interested in, or concerned at what is going on; or what may

happen to them or others)

Public interest is therefore satisfied by showing that the public

either has a legitimate interest or a legitimate concern in its issues
2. South Hetton Coal Ltd v North- Easton News Association
For this defence to succeed, the defendant must prove that;
i) that the words used are comment and not fact;
ii) that the comment is on a matter of public interest
Matters of public interest in the sense that the public in general
has a legitimate interest in them.
Matters of government and public administration, religious
institutions, and also when the officer’s private life gets impinged
with his office then it may be of public interest.
Also, matters which are expressly or impliedly subject to public
criticism and attention e.g. theatre productions may all be public
interest
iii) that the comment is an opinion based on true facts
3. Kemsley v Foot
iv) That the comment is fair and made without malice
The comment must be based on true facts.
A comment cannot be fair if the facts on which it is based are
untrue.
Also, the comment must be honestly believed to be true.
It does not matter that the comment was wrong, exaggerated or
prejudiced provided it was a case of an honest man expressing a
genuine opinion on a matter of public interest.
The motive with which the statement is made is a crucial issue.
If the statement was made with dishonest motive, then it will be
more difficult for the defendant to invoke the defence.
4. Campbell v Spottiswoode
NB: The defence may be rebutted by showing that the defendant
was acting out of malice. Thus, the defendant must not be
actuated by malice.
5. Thomas v Bradbury Agnew & Co Ltd
NB: The onus of proof that the defendant was actuated by malice
is on the claimant
6. Telnikoff v Masutevitch

PRIVILEGES
Freedom of speech may outweigh protection of reputation on
certain occasions.
On such occasions, privilege is granted to the statement.
Privilege may be absolute or qualified.
NB: Absolute privilege is not affected by malice, whereas qualified
privilege is destroyed by malice.
NB: Absolute privilege is a complete defence to an action for libel
and slander, no matter how false the words may be or how
malicious the defendant is.

ABSOLUTE PRIVILEGE
The following are occasions where Absolute privileges may arise;
a. Parliamentary privilege
Statements made in the course of Parliamentary proceedings are
absolutely privileged.
1. Article 115 and 116 of the 1992 Constitution
The privilege is limited to the confines of Parliament.
It will not protect an MP outside the Parliament.
No action will lie against an MP for defamation in respect of
anything said in Parliamentary proceedings, either in debate or
committee or in petitions to Parliament.

b. Judicial privilege
Statements made in the course of judicial proceedings by judge,
juror, counsel, solicitor, parties and witnesses are absolutely
privileged.
This privilege also applies to documents used.

c. Executive privilege
This privilege includes communications between high-ranking
officers of state such as Ministers or Ambassadors and High
Commissioners.
1. Chatterton v Secretary of State for India
2. Atitsogbe v Harley (Hayfron Benjamin said even if the action was properly brought, the statement was
issued when Mr Harley was in an Executive position and therefore the occasion was privileged”

QUALIFIED PRIVILEGE
Qualified privilege differs from absolute privilege in that it can be
defeated by malice.
NB: Qualified privilege protects the maker of the statement from
suit provided that the maker acted honestly and without malice.
The defence of qualified privilege can be destroyed by showing
that the defendant was actuated by malice.
It is for the claimant to prove that the defendant was actuated by
malice.
Malice means that the defendant had no honest belief in the truth
of his statement
1. Horrocks v Lowe
2. Tackyie v. Kabbah

REMEDIES
a. Injunction
Where the claimant becomes aware that the defamatory material
 is about to be published, he can apply to the court for an injunction
to prevent the publication.
Injunctions are discretionary though.
1. Bestobell paint v Biggs

b. Damages
Where defamation has been proved, generally, the claimant may
be entitled to nominal damages.
However, where the claimant can prove special damage, then he
may be entitled to special damages.
Punitive damages may also be awarded where e.g. the defendant
decided to publish a libel, calculating that the possible damages
would not be exercised by the profit he would make on the book
1. Cassell v Broome

DEATH IN RELATION TO The occurrence of death has 2 effects in torts;

a. It may create liability. i.e. giving rise to actions in favor of
TORTS the deceased’s dependents
b. It may extinguish liability i.e. it may affect existing causes
of action in which the deceased was involved.

DEATH CREATING LIABILITY

At common law, the position of the law was that the death of a
party destroyed all causes of action in torts i.e. liability was
extinguished both against the deceased and against person whom
the deceased had action against.
1. Baker v Bolton
This position of the common law has however been modified by
the Fatal Accidents Act of 1846 and Law Reform (Miscellaneous
Provisions) Act 1934 in UK.
In Ghana, damages recoverable in respect of death of a victim is
governed by the Civil Liability Act, 1963 (Act 176).
The act establishes that when death ensues from a tort, the estate
of the deceased may go to court to claim on behalf of the
deceased.

NB: For there to be liability, the claimant must establish all the
following requirements to be able to successfully claim;
a. The death was caused by the wrongful act of the
defendant;
The act causing the death must be tortious and as such if it is not,
then the defendant would not be liable.
The defendant’s liability should have been already established by
e.g. the verdict of a court. i.e. it must have been already
established that the defendant’s wrongful act caused the death of
the deceased.
1. Amponsah v Appiagyei & ors
 2. Amoah v Anthony
3. Boakye & anor v Effa
4. Boateng v Boahen

b. The defendant must not have a defence against the

action:
The preliminary tortious action must have been established and
the defendant should not have had a defence against that action.
If the defendant raises a defence, then the case has to be properly
handled before proceeding to awarding damages for death. i.e. if
there is a total denial of liability, it must be settled before
proceeding.
Any defence that would have been available against the deceased
had he lived and sued can be raised against the action by the
dependants.
1. Read v Great Eastern railway co.

c. The deceased must have not settled the claim or agreed

to waive the claim:
If the deceased in his lifetime agreed not to sue the defendant,
then no action would lie against him at the instance of his
dependants.
Sometimes also, the defendant may have decided to pay some
amount to the deceased in lieu of the occurrence and this would
be factored and cannot be reversed. i.e. if the deceased settled the
claim, no action will lie.
Thus, where the deceased while alive already brought an action or
accepted compensation, the dependants cannot bring a fresh one.
1. Read v Great Eastern railway co.

d. The action must not be statute barred:

If the action is statute barred before the deceased’s death or
before the action is brought, then no action will lie.
1. Dede v Tetteh

WHO CAN BRING SUCH AN ACTION?

Where the death of a person is caused by the fault of another, the
personal representatives of the deceased may bring an action on
behalf of the deceased’s estates.
1. Section 16(3) of the Civil Liability Act1963 (Act 176)
Where the deceased dies leaving a will, the personal
representatives are those that the will stipulates as the executors
of the will.
However, where the deceased des intestate, the personal
representatives are those stipulated by law e.g. those whose
names appear on the letters of administration, the customary
successor, etc.
If after the expiration of 6months after the death, no personal
representative has taken office, any of the dependants can take up
the action on behalf of the remaining dependants
2. Section 16(3) of Act 176
In the claim, the claimant must furnish the defendant with
particulars of the persons for whom and on whose behalf the
action is brought and of the nature of the claim in respect of which
damages are sought to be recovered.
3. Section 16(5) of Act 176
The action shall be commenced within three years after the death
4. Section 16(6) of Act 176
NB: Only one action maybe brought in respect of the death for the
benefit of all the dependants
5. Section 16(2) of Act 176

WHO THEN ARE DEPENDANTS?

These are the beneficiaries of the estate of the deceased.
In Ghana, a dependant is a family member of the deceased.
Family member is based on the matrilineal or the patrilineal
system.
Also, by reason of adoption under the relevant law on adoption
(formal or customary) obliged to maintain and who suffers loss or
mental distress as a result of the death are deemed in Ghana as
dependants.
1. Section 15 of Act 176
2. Commentary on Yeboah v Mckenzie

WHAT CAN BE CLAIMED?

Section 18 of Act 176 deal with the damages recoverable for the
wrongful death to the dependants.
A claim may be brought for general damages for the wrongful
death.
Generally, these losses cannot be quantified.
The court may award damages which it considers proportionate to
the loss resulting from the death to the dependants.
1. Section 18 (a) and (b) of Act 176
And also consider reasonable compensation for mental distress
resulting from the death of the dependants.
Here the act provides that the damages shall not exceed
100million cedis.
2. Section 18(2) of Act 176
Damages may also be claimed for pain and suffering which is
usually given when the deceased was alive for some time before
dying.
There can also be a claim for specific damages.
These expenses can be quantified and thus the claimant may seek
to recover these specific expenses.
So that expenses actually incurred by the deceased before the
death and in respect of funeral and any other expenses incurred by
the dependants or the personal representative by reason of the
wrongful act may be claimed.
NB: However, it is reasonable funeral expenses etc.
3. Section 18(3) of Act 176

CAN THE DEPENDANTS RECOVER FOR

PROSPECTIVE LOSS?
Still on the recovery of damages, it is said that the dependants can
claim for a reasonable expectation of pecuniary advantage in
future had the deceased survived.
The dependants can take into consideration prospective loss
where it is reasonably probable.
Thus, the dependants may be allowed to claim for reasonable
expectation of pecuniary benefit from the continuance of life.
1. Tuff Vale railway co v Jenkin
NB: It must however not be a mere speculative possibility of
pecuniary benefit but rather that he has lost a reasonable
probability of pecuniary advantage to be successful.
The latter accessible the former is not.
2. Barnett v Cohen per McCardie J

ASSESSING OF DAMAGES
Kumador has explained how the damages are going to be assessed,
I don’t get it.
NB: In accessing, there are certain sums of money the court would
not allow to be factored in or would not be taken into account
when assessing the damages recoverable by the dependants.
These include;
a. Donations/ generosity of others
1. Peacock v Amusement Equipment
b. Pensions/ gratuity etc. that would accrue to the claimant
because of the loss of their loved one i.e. the deceased
2. Pidduck v Eastern Scottish Omnibus
c. Any sums paid by insurance
NB: However, Section 21 of Act 176 provides that if the death was
partly due to the contributory negligence of the deceased, in
assessing the damages, these may be factored in to reduce the
damages.
NB: Also, while the sums may be paid, they are paid after all the
just debts of the deceased are paid before the court gives the
compensation to the claimant.

DEATH EXTINGUISHING LIABILITIES

There are certain actions which are extinguished when a person
dies. These includes;
a. a cause of action for breach of promise to marry or
seduction or for inducing one spouse to leave or remain
apart from the other or for damages for adultery
b. claim for compensation under the Workmen’s
Compensation Act. i.e. say a workman gets injured at work
and seeks to claim for the injury but dies, that claim
extinguishes
1. Section 24 of Act 176

Put together by;

BONNEY GODSON