THE LAW OF TORT

(Summary LAW OF TORT OR BASIC LAW)

2.1. Features of law of Tort
Law of Tort has the following features
 This is a Civil wrong for which redress is available before a court of
law (in form of compensation)
 The compensation is made in return for the injury that is suffered
by the aggrieved party i.e. this is made before the Court.
 Tort and Contract differ in the following way; that is, the latter, the
agreement is already made between two parties but in tort, the
wrong is against society where there was necessarily no written
contract.
 A note to an individual can be punishable by society in the form of
criminal procedures which are designed to address the wrong.
2.2 Specifics to the Engineer
Two aspects related to an engineer are careless act and negligence
1. Careless acts: errors in calculation, poor supervision.
2. Negligent advice.
Negligence gives rise to- defendant and plaintiff. Defendant- Person who
defends himself in court, Plaintiff-Complainer in court
 It is very important in tort (in common law).This situation will arise due
to failure to measure up to the reasonable expectation in contract.
 Negligence is therefore a breach of a duty to take care which result into
damage which is undesired by the defendant to the plaintiff i.e. conduct
by the defendant is not intentional.
2.2.1 Liabilities
Liabilities that arise out of negligence are:
i. There is existence for duty of care, foresee that what you do affects
other people.
ii. A breach of this duty (to take care) must be established and that the
standard of the contract has been exhibited by the reasonable action
in your circumstances.
iii. There has to have been damages caused to the plaintiff as a
consequences’ of the defendants breach of duty.
2.2.2. Issues to be established
It is important that the following are established:
i. There is casual connection between the defendants breach and the
plaintiff damage.
ii. We have to justify/establish whether it was reasonably foreseen and
that the defendant conduct would inflict injury to the plaintiff.
iii. The extent of the damage.
2.2.3. Professional negligence
A professional person is expected to exercise the standard of care that a
reasonably competent practitioner in that field can exercise (e.g. a Registered

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Engineer); if you are not able to exercise that standard of work, it becomes
professional negligence.
2.2.4 Contributory negligence
A case where the plaintiff suffers damage partly due to his own fault and by the
fault of another person. The damage recovered by the plaintiff should be
reduced by taking into account the plaintiff’s share liability to the damage.
2.2.5 Remedies
These may be in form damages, injunction, etc.
i. Damages: this is the most important remedy. Damages are
designed to place the plaintiff in a position that he had been if
the tort would not have been committed. The purpose of the
damages is to compensate the plaintiff and not to punish the
defendant. In case of exemplary damages then you seek
assessment.
ii. Injunction –the court stops further tort from going on. It
prevents commission, continuation or repetition of the injury.
iii. Remoteness of damages; the claims of the plaintiff may not be
sufficient connected to the defendant’s wrong (negligence to
make the defendants liable.
2.2.6. Limitation of Action
Three years is the limitation of action for negligence giving rise to personal
injury or 6 years from the time the owner (plaintiff) becomes aware of the effect.
2.2.7. Further issues
Vicarious liability. A person has committed a tort and another person may be
liable although actually he has not committed it. In this case both of those
persons are liable as joint tort (common in cases of master servant relationship
or agent).
A master is liable for the tort of a servant who commits it in the course of his
duty/employment. The court will check whether the servant was so else or not
in the course of his employment or was ’on a frolic of his own”.
Defendants
i. Content-this is available to the defendant if the plaintiff has agreed to
the commissioner of the tort against himself.
ii. Volenti nofit injuria- the plaintiff has invited the risk on the tort
“volenti non fit injuria” e.g. working along a track owned by the
railway and knowing very well that the train can come along.
iii. Vicarious liability –one person commits a tort and another is liable
though he did not actually commit the tort.

OBLIGATION OF THE ENGINEER

3.1 Obligation of the Engineer to the Employer
i) Serviceability
The project when complete must be fit for use as per intent purpose e.g. a road
should not be a killer road, building project; should not collapse, water project,
should supply water reliably.

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(ii)In design duties
 We should exercise reasonable care and skill (economy) by adopting
establishing practice i.e. you are not doing research. If new technology
which has never been used then the employer must be informed for the
potential risk and agree to take the chance. So failure in such
circumstances may be taken as potential risk.
 In contract, there is only a contract between Eng A and Employer not
between Eng B and the Employer. Eng A remains liable unless the
employer concurs in delegation of responsibility to Eng B (cf: vicarious
liability)
 Delegation design
In contract, there is only a contract between Eng A and Employer not
between Eng B and the Employer. Eng A remains liable unless the
employer concurs in delegation of responsibility to Eng B (cf: Vicarious
liability).
iii) In supervision
The purpose of supervision is to ensure that the work is carried out by the
contract in accordance with the contract. Reasonable supervision must be
accorded by the Engineer to achieve this.
In major projects we have Resident Engineer (RE) but in minor works the
engineers will make frequent and adequate site visits to check on important
items or stages of work.
iv) Contract administration
Administrative aspects include the following
a. Issue the construction drawings on time, on demand by the Contractor
and as –build –drawings after completion of the project.
b. Issuing of certificates for work done and ordering variation or variation
orders. This should be accurately and promptly. However care must be
taken to follow due process when variation orders may substantially alter
the scope of works or when materials to be used are substantially
altered.
iv. Liability in Tort
In contract, duties are set out by the contract, but in tort the Engineer still
owes the duty to the employer, contractor, user and visitors as follows:
 To the employer-Any economic loss due to failure of any part beyond the
contract period (6yrs limitation for simple contract).
 To contractor and sub contractors: When on site if the engineer’s
instructors contribute to their injury or economic loss or if the design
was faulty such that the failure of the project ensued from faulty design
then contractor /sub-contractors should be indemnified.
 To used and visitors –The Engineer should have in mind the user/visitor
to the project and he owes such people a duty to care.
vi) Certification for payments

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The Engineer should act impartially between the Employer and the Contractor-
Never make advance payments; Payments may only be certified for materials
on site and for work done.
3.2 Role of the Resident Engineer
i) Responsibilities:
In general all the work must be carried out in certification by the Engineer. The
RE must therefore familiarize himself with all work.
These duties are covered under FIDIC document:
a. To watch and supervise, test, examine on behalf of the engineer.
b. To implement delegated instruction on behalf of engineer aware.
ii) Duties
a) To check the requirement of the specification in regard to the materials
and workmanship that they are being complied to by the contractor.
b) Issue any further drawings and directions.
c) Coordinate the various contractors on site.
d) To measure the amount of work done for payment purpose.
e) Ensure that the contractor sticks to schedule of work.
f) Forward claims from the contractor to the engineer and vise versa.
g) To keep an accurate record of all major events on site. This is where
eventually there might arise a change in design, work schedule or
stoppage of work e.g. industrial proceedings. To control the cost of the
contract.
iii) Limitation of the Resident Engineer
a) The Resident Engineer has no powers to order extra work or to order
work which can cause delay.
b) The Resident Engineer has no power to relieve the contractor of any of
the duties under contract or deviate from the approved drawings.
c) The Resident Engineer cannot settle the claims and dispute.
d) TheResident Engineer cannot certify the claim.
e) The Resident Engineer has no power of any matter pertaining to the
contactor.
iv) Caution
The Resident Engineer can be overtaken by engineer or the Resident Engineer’s
decision can be reversed by the eng. (Fidic Clause 2 (2b).
If the contractor is not satisfied with any of the Resident Engineers decision he
can refer to the engineer for reversal, revision z9Fidic Clause (2(2b).
a) Duties of the Engineering Assistants
To assist the Resident Engineering in his duties (assigned one section after
another).In the organization of the weekly meetings, called RE meetings. These
are important to:
i. Discuss the progress of the projects to;
ii. Set targets
iii. To provide forum for guidance to the young engineers.
b) Inspectors

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 i) They work continually in their area of skill and must be able to judge quality
and quantity of workmanship especially the good finish and should be able to
delete when something is wrong.
ii) Inspectors keep abreast with all work progress and on all fronts of the
works.
c) Office staff.
Office staffs are responsible for the preparation of documents and their
general upkeep. They should clear the office including filling, running of
errants and any other work relevant to the RE. The office staff is always
on standby to facilitate and support any activity in the RE’s office.

3.4. Contractor’s site staff

The key staff on the contractor’s side is the site Agent (SA).The SA is
required by the RE to do the following.

i. Should be clearly decisive in their instruction.

ii. He should be very prompt willingly in the supply of information as
requested
iii. He should be able to receive willingly any complaints on site.
iv. All instruction to the site is through the site agent.
v. He should be fair, reasonable and understanding.

The SA is therefore expected that:

i. He has to be competent.
ii. He should be trustworthy not to cover up work behind the schedule.
3.5 VARIATION
These are alteration of additional or omissions (FIDIC Clause 51 & 52).
Summary of relevant FIDIC Clauses.
i. The ordered variation (Clause 51)
What they are and how they are ordered
ii. Valuation of ordered variation (Clause 52 (1).
iii. Notice of claims (Clause 52(1), (2),(5)
iv. Valuation of works.

INTRODUCTION

The word tort has been derived from the Latin tortus which means crooked or
twisted in French, tort means a wrong. In law, tort denotes certain civil wrongs.
It means, a tort is a civil wrong. Sir F. Pollock has defined tort as” an act which
causes harm to determinate person, Whether intentionally or not, not being a
breach of a duty arising out of personal relation or contract ,and which is
either contrary to law, or an omission of a specific legal duty, or a violation of
an absolute right.

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Every tort results from the breach of a certain duty which is primarily fixed by
law, unlike other civil wrongs, such as breach of contract, where the duty in
question is fixed by the parties themselves. Thus, the duty not to defame,
injure or damage the property of any person is one fixed by the law and its
breach may constitute a tort, whereas the duty to supply goods under
contract of sale is a duty created by the parties themselves in their contract of
sale is a duty imposed on persons generally, i.e. on every individual, but
other ,cases the duty is imposed only on the parties concerned ,e.g. the duties
created by a contract are imposed only on the parties to the contract and on
no one else. Similarly, the duty in tort is owed to every other person, unlike in
contract cases where one contracting party owes his contractual obligation to
the other contracting party and to one else.

A tort, as such, differs from other civil wrongs in a number of aspects. It is a

common law wrong, which is usually remedied by an award of “Unliquidated
Damages”. Unliquidated damages are those whose quantum or assessment is
left for the determination to a court at its discretion. These are distinct from
liquidated damages which are fixed by the plaintiff; certain other remedies are
also available which will be considered when the various torts are separately
dealt with.

A person who commits a tort is called a, torfeassor. Where two or more

persons commit a tort, they are known as joint tortfeasors. They may be sued
jointly, or any one of them be sued for the whole of the damage. In case of joint
tortfeasor, there is a right of contribution, under which the court may
apportion the damages between them in such a way as is just, having regard to
their respective degrees of blame (Law Reform Act (Cap.26,section 3).

FUNCTION OF THE LAW OF TORTS

The primary function of the law of torts is to compensate persons injured by

the civil wrong of others, by compelling the tortfeasor to pay for the damage
occasioned by his tort. Besides this, there are certain other functions and these
include the following.

a) To determine rights between parties to a dispute. A party to a

dispute may bring an action for a declaration of his rights; and once the
court makes a declaration, the rights of the parties are determined.

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 b)To prevent a Continuance or Repetition of Harm. Where the injury
complained of is of a continuous nature or likely to be repeated by the
tortfeasor, the injured party may be granted an injunction to prevent its
continuance or repetition, e.g., in case of trespass to land.

c)To Protect Certain Rights Recognized by Law. There are certain

rights which every individual is entitled to and which are recognized by
law. These rights are protected by the law of torts e.g. a person’s
reputation or rights to good name is protected by the tort for negligence
which imposes a duty of care on every other person.

d)To Restore Property to is Rightful Owner. Where property is

wrongfully taken away from its rightful owner or otherwise dealt with
contrary to his rights, he may seek a restitution of the property or its
value since wrongful act amounts to the tort of trespass to goods (or
land).

MALICE

Malice means ill-will or desire to cause damage to someone. In legal sense,

malice means a wrongful act which is done purposely without having a lawful
excuse. In tort, the intention or motive for an action is generally irrelevant. The
general rule is that a bad intention does not make a lawful action as unlawful
and similarly an innocent or good intention is not a defense to a tort.

Bradford Corporation v. pickles (1895) P, with a view to inducing Bradford

Corporation to buy his land at a high price, sank a shaft on his land which
interfered with the water flowing in undefined channels into the corporation
reservoir. The Corporation applied for an injunction to restrain P from
collecting the underground water. Held: that an injunction would not lie. P was
entitled as owner to draw from his land the underground water. His ‘Malice’, If
any, In trying to force the purchase of land, was irrelevant. No use of property
which would be legal if done with a proper motive can be illegal if done with an
improper motive.

Wikinson v.Downton (1897) A, as a practical joke, told Mrs. B that her

husband had met with an accident. Mrs. suffered a nervous shock and was ill
as a result. Mrs. B brought an action against A for false and malicious
representation. The fact that A passed the information as a like was irrelevant,
and Mrs. B was entitled to damages.

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Malice in itself is not a tort, but it can be an important element in certain torts.
Main examples of such torts are: Malicious prosecutions, malicious falsehood,
defamation, conspiracy and in certain cases nuisance.

NATURE OR TORTTIOUS LIABILITY

Tort is a civil wrong which is usually remedied by an award of unliquidated

damages. Prof. P.H. Winfield asserts that “tortuous liability arises from the
breach of a duty primarily fixed by law: such duty is towards persons generally,
and its breach is redressible by an action for unliquidated damages”

Every person is under a duty to compensate for his wrongful acts which have
resulted in injury to another person. It is duty to compensate that determines
his liability in tort. Generally, the plaintiff must prove that he has suffered
harm and that there has in consequence been a violation of his right. Some
civil wrong are actionable even if no damage is suffered e.g. trespass to land.
Whether the plaintiff has any remedy in some cases of tort depends on the
following two principles of general application.

1)Damnum Sine Injuria: Literally translated, this phase means “Harm

without legal injury”. It refers to circumstances where a person has
suffered actual harm without any violation of his legal right. A person
aggrieved in this has no legal remedy.

Mogul steamship Co. v. McGregor, Gow & Co.(1882) Certain ship-

owners reduced their freight charges for the sole purpose of driving their
rival out of business. The plaintiff, who had thus been driven out of
business, brought an action against the ship-owners, Held; A trader
ruined by the legitimate competition of his rivals could have no redress
in tort.
2)Injuria Sine Dumno: This refers to a situation where a person suffers
a violation of his right without any actual loss or damage sustained by
him. This is especially so in the case of tort which are actionable “per se’
(I.e. without proof of any damage) e.g. trespass to land, libel etc.

The court can award the damage to the plaintiff in such cases.

Ashby v. White, (1703) In this case the defendant, a returning officer,

wrongfully refused to register a properly tendered vote of the plaintiff who was
a legally qualified voter. In spite of this, the candidate for whom the vote was
tendered was elected, and so loss was suffered by the rejection of the vote. It

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was held that the defendant was liable because he deprived the plaintiff of his
legal right registering his vote.

The tortuous liability can be determined on the basis of the following principle:

The Fault principle

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

(i) Intention
Where a person does a wrongful act desiring that its consequences
should follow, he is said to have intended it; and to that extent there
is some amount of fault on his part.
(ii) Recklessness
An act is said to be done recklessly where it is done without caring
whatever its consequences might be, Recklessness, as such, constitute
fault on the part of the wrongdoer.
(iii) Negligence
A person is also at fault where he does a wrongful act negligently i.e.
where the circumstances are such that he ought to have foreseen the
consequences of his act and avoided it altogether.(Here we are
concerned with negligence as an element of fault.

Distinction between Tort, Crime and Breach of Contract

We may distinguish between a tort, a crime and a breach of contact .as under:
(i)Tort and Crime
A crime is breach of public rights whereas a tort is a civil wrong. The main
object of criminal proceeding is the punishment to the Criminal persons but
the object of punishment in tort is not punishment. Its main aim is the
compensation to the plaintiff for the loss or injury caused by the defendant i.e.
Damages. Some cases may be actionable under criminal law and law of torts
e.g. If ‘A’ assaults ‘B’ there is both a crime and a tort.

(ii)Tort and Breach of Contract:

In contract, the duties are fixed by the parties to a contract. But in tort, the
duties are fixed by law (Common law or statute1).In some cases, a breach of
contract and tort may take place simultaneously. We assume ‘X’ employs a
private surgeon to operate his wife. If ‘Y’ fails to perform his duty properly then

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‘X’ has a cause of action against ‘Y’ for (i) breach of the contractual duty of
care, and (ii) the tort of negligence.

GENERAL DEFENCES

A person sued in tort has at his disposal certain defences, some of which are
restricted to particular torts (e.g. contributory negligence is a defence only to
the tort of negligence), while other are of a general nature. Specific defences are
dealt with together with their respective torts. This section is restricted to
general defences.

The following general defences are available to a defendant in every action for
tort where they are appropriate:-

(a)Volenti non fit Injuria

(b)Inevitable Accident
(c)Act of God
(d)Necessity.
(e) Self-defence
(f)Mistake
(g)Statutory Authority
(h)Exemption Clauses (or Disclaimers)

Volenti Non Fit Injuria

Volenti non fit Injuria is also known as the voluntary assumption of risk.
Where a defendant pleads this defence, he is in effect saying that the plaintiff
consented to the act which is now being complained of. The plaintiff consented
to the act which is now being complained of. The plaintiff’s consented may be
either express or implied from his conduct. Before “Volenti” can be upheld as a
defence. it must be proved that the plaintiff was at the material time aware of
the nature and extent of the risk involved, for a person cannot consent to what
is not within his knowledge. By his consent the plaintiff voluntarily assumes
the risk of whatever consequences might follow from the act he has consented
to,, Consequently, where “volenti” is successfully pleaded its effect is to deny
the plaintiff any remedy at all against the defendant.
Volenti non fit injuria means no injury can be done to a willing person. For
example, a football player cannot complain for being injured while playing the
game, similarly, s surgeon can claim this defence if the person is being
operated dies during the process of operation. It also applies in other sport like
boxing, cricket etc.

Khimji v.Tangu Mombasa Transport Co. Ltd (1992) The plaintiffs were the
personal representatives of a deceased who met his death while travelling as a
passenger I the defendant’s Bus. The bus reached a place where the road was
flooded and it was risky to cross. The driver was reluctant to continue but
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some of the passengers, including the deceased, insisted that the journey
should be continued. The driver eventually yielded and continued with some of
the passengers, including the deceased. The bus got drowned together with all
those aboard it. The deceased’s body was found the following day. Held: The
Plaintiffs’ action against the defendants could not be maintained because the
deceased knew the risk involved and assumed it voluntarily and so the defence
of volenti non fit injuria rightly applied.
Apart from instances like those of the above case, the defence of ‘volenti’ has
been pleaded in a number of situations,, including the following; 1) A
passenger injured by the act of a driver whom he knew to be under the
influence of drink at the material time,; 2) A spectator at a game, match or
completion injured by the act of his surgeon, where the patient has consented
to the operation. The viability of the defence depends on the circumstances of
each case, otherwise the defendant and s on the circumstances of each case,
otherwise the consenting party does not, by his consent , necessarily give an
open to the other party to act decently, high-handedly or in any manner he
pleases. Moreover, volenti is not available as a defence to certain actions. This
is particularly so in rescue cases. Where the defendant creates a situation in
which some person is put in imminent danger, and the plaintiff, at the risk of
his own life and safety, rescues the endangered person incurring injury or
damage in the rescue process, the defendant cannot plead that the plaintiff has
voluntarily assumed the risk to his life; he is liable for the injury or damage
sustained by the plaintiff.

Haynes v. Harwood, (1935) The defendant’s servant left a van and horses
unattended in a crowed street. A boy threw a stone at the horses and they
boiled. This exposed a woman and some children nearby to some grave danger.
The plaintiff, a police constable, managed to stop both horses; but he did so at
great personal risk and fact sustained severe injuries. In an action doctrine of
voluntarily assumption of risk did not apply because the plaintiff, in rescuing
the persons in imminent danger, had acted under an emergency caused by the
defendant’s wrongful act. (2)It was immaterial that the persons to be saved
were strangers, and the defendants were liable.

Inevitable Accident:
An Inevitable accident is one which cannot be prevented by the exercise of
ordinary care, caution and skill. It therefore occurs only where there is not
negligence on the part of the person whose act is principle, and since an
inevitable accident does not impose fault on the part of the alleged wrongdoer,
it follows that an injury which has resulted from an inevitable accident is not
actionable tort.
Stanley v. Powell, (1891) The plaintiff was employed to carry cartridges for a
shooting party. A member of the party fired at a pheasant but the bullet, after

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hitting a tree, rebounded into the plaintiff’s eye. The plaintiff sued. Held: the
defendant was not liable plaintiff’s injury resulted from an inevitable accident.

Act of God
An act of God (or is major) is also an inevitable accident caused by natural
forces unconnected with human beings e.g. storm, flood, earthquake, thunder
etc. In this case also, any resultant injury is not attributed to anyone’s fault as,
therefore, not actionable in tort.
Nichols v. Marsland, (1876) The defendant had a number of artificial lakes on
his land, an unprecedented rain such as had never been witnessed in living
memory caused the banks of the lakes to burst and the escaping water carried
away four belonging to the plaintiff.Held:The plaintiff’s bridges were swept by
act God and the defendant was not liable.

Necessity
A person may sometimes find himself in a position whereby he is forced to
interfere with rights of another person so as to prevent harm to himself or his
property, For instance, if he is about to be shot he may feel constrained to use
the person next to him as a shield against the gunman; or being hungry he
may steal food in order to survive; or being about to fall into a pit he may grab
another person for support, in the process taking the latter with him into the
pit. In all these cases he may seek to justify his action as a matter of necessity.
It is based on the maxim “salus populi lex” i.e. the welfare of the people is the
supreme law.
All the cases decided on the defence of necessity point to the fact that this
defence is difficult to maintain and is very rarely allowed by court. The general
rule is that no person should unduly interfere with the person or property of
another. It is only in exceptional circumstances of person or properly of
another; it is only in exceptional circumstances of an urgent situation of
imminent danger that this defence may be upheld.

Cope v. Sharpe, (1992) The defendant committed certain acts of trespass on

the plaintiff’s land in order to prevent fire from spreading to his master’s land.
The fire never in fact caused the damage and would not have done so even if
the fire spreading to the masters’ land was real and imminent. Held: The
defendant was not liable as the risk to his master’s property was real and
imminent and a reasonable person in his position would have done what the
defendant did.
In view of the difficulty posed by the above defence, it is not advisable for a
defendant to rely solely on it, especially where there are other defences. It is
fair to plead it as an alternative to another defence.

SELF DEFENCE
It sometimes said that a person who is attacked does not owe his attacker a
duty to escape. Everyone whose person is threatened is entailed to defend

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himself might find himself liable to his alleged attacker, Thus, where a person
assaulted i.e. threatened with immediate harm, but no harm is actually
inflicted on him, he should not himself use force in an effort to defend
himself. Where force has actually been applied (i.e. where there has been a
battery the person attacked has a right to defend himself in the same way, i.e.
by applying force. But the force used in self-defence must be reasonable and
proportionate to the used in attacking him: otherwise if it is reasonable or
excessive in the circumstances he will himself be liable to his attacker. Thus a
person attacked with a fist, pocket knife or small stick may respectively defend
himself with a fist, pocket knife or small stick, or he may even use lesser gun,
clearly the force used by him in self –defense will be unreasonable and
disproportionate and he will be liable to his attacker.

Creswell v. Sirl, (1948) A dog owned by plaintiff, C attacked during the night
some in-lamb ewes owned by S. The god had just stopped worrying the sheep
and started towards S, who shot it when it was 40 yards away sued for
trespass to good (dog).Held; S was justified in shooting was justified in shooting
the dog if (i) it was actually attacking the sheep; or (ii) if left the dog would
renew the attack on them, and shooting was the only practicable and
reasonable means of preventing revival. The onus on justifying the trespass lay
on the defendant.(protecting livestock against dogs is now on a statutory
basis’s 9 of the Animal Act,1971).
An occupier of property may also defend his property where his interest therein
is wrongfully interfered with. Once again, reasonable force must be used in the
defence of property. A trespasser, for instance, may be lawfully ejected using
reasonable force. The use of force which is not called for in the circumstances’
entails legal liability on the part of the person purporting to defend his
property.

MISTAKE
The general rule is that a mistake is no defence in tort, whether it is a mistake
of law or of fact. Mistake of fact may be relevant as a defence to any tort in
some exceptional cases. This could arise in cases of malicious prosecution,
false imprisonment and deceit. For example, where a police officer arrests a
person about to commit a crime but the person arrested is innocent then the
police officer is not liable. In this case, the mistake is reasonable ground for the
defence in the tort .Mistake cannot be a defence for conversion or defamation.

STATUTORY AUTHORITY
Where a statute authorities a particular act, a person who does it is not liable
in tort. The authorization of an act is also an authorization of its natural
consequences. But the person acting must do so in good faith and within the
scope of the powers conferred by the statute; or else he will not be protected.
Where the person acting exceeds the powers conferred by the statute, the
compensation payable by him to the injured party cannot be more than what is

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provided by the statute itself. The statute may stipulate a definite sum, or it
may give powers to certain official to assess the loss suffered by the injured
party. Thus, where a person has acted in pursuance of the provisions of a
statute, he may plead statutory in his defence; and where the statute does not
protect him from liability 9e.g.where he has exceeded his powers) and the
injured party claims by way of compensation a sum in excess of that stipulated
by the statute, he may plead the statute in mitigation. This is especially in
what is known as statutory torts.

Vaughan v.Taff Vale Railway Co.(1860) A railway company was authorized by

statute to run a railway which traversed the plaintiff’s land. Sparks from the
engine set fire to the plaintiff woods. Held: that the railway company was not
liable. It had taken all known care to prevent emission of spark. The running of
locomotive was statutorily authorized.

Exemption Clause (or Disclaimers)

This is different from contract where the duties imposed on the parties are
created by the parties themselves. For this reason a strict construction is
imposed by common law on any exemption clause whose purport is to displace
a duty of care created by law. Thus, under the “contra proferentem rule’ an
exception clause which does not expressly cover negligence. But where the
exemption clause is phrased in such a way that a duty imposed by law is
expressly displaced, and then the exemption clause may be relied upon as a
defence to an action brought in tort, as was the case in Hedley-Byrne & co.ltd
v. Heller & Co. Ltd. (1963).

CAPACITY:
The general rule is that any person may sue or be sued in tort. All persons are
subjected to the same laws. However, some special rules apply in certain
circumstances which restrict, forbid or qualify the right to sue or be sued. It
means certain person cannot sue, while some other persons cannot be sued.
Capacity means the capacity of parties or persons to sue or to be sued in law of
torts. The capacity of various persons in the law of torts is explained as under.

THE GOVERNMENT
The Government Proceedings Act (Cap 40) makes the Government subject to
liabilities in tort as if it were a private person of full age and capacity .Section 4
(1) of this Act provides that the Government is liable.
(a) in respect of torts committed by its servants or agent;
(b) In respect of any breach of those duties which a person owes to his servants
or agents at common law by reason of being their employer; and
(c)In respect of any breach of the duties attaching at common law to the
ownership, occupation, possession or control of property.
The Government is also liable statuary torts i.e. torts arising from breach of a
duty imposed by statute. However, the Government is not liable for any thing

14
done or omitted to be done by any person while discharging any
responsibilities of a judicial process (Sec: 4 (5).The Government is not also
liable for torts committed by public officers who are appointed and paid by
local authorities, or members of public corporation like Kenya Railways, Maize
and produce Board of Kenya etc.

Infants and Minors

As a general rule minority is no defence in tort. Infants can sue and be sued in
the same way as any other person. However, the age of an negligence of the
wrongdoer are the main cause of the tort. In the case of development where it
could be said that he should be found legally responsible for his negligent acts.
A child may be also guilty of negligence if old enough to take precautions for
his own safety. In Attorney –General v. Vinod, (1971) E.A., a child aged 8 and
half years was held partly to blame for an accident.
An infant may not be liable in tort in a case which is a breach of contract.
Similarly; an infant will be liable in tort if this tort is independent of a contract.

Burnard v. Haggis, (1963) A minor hired a horse for riding and was told by the
owner not to jump over it. But he jumped the horse and injured it. Held: The
minor was liable for his tort which was of independent of the contract.
Generally, a parent or guardian is not liable for the torts of his children unless
he authorizes the tort. But a parent or guardian is liable for torts committed by
children in negligence.

Bebee v. Sales, (1916) A parent permitted his son aged 15 to remain I

possession of a shotgun, with which the son had already caused harm and in
respect of which complaints had been made. Held: The father was liable for
injury to another boy’s eye.

Husband and wife

The position of husbands and wives in tort is covered by two English statutes.
These are: the Married women’s property Act 1882 and the Law Reform
(Married Women and Tortfeasors) Act, 1935.The Former Act is a statute of
general application is Kenya. The latter statute applies in Kenya to the extent of
paragraphs (b) and (c) of section 1.
A married woman is liable in tort and may sue or be sued in tort in the same
way as though she were a female sole (i.e. a single or unmarried woman).A wife
can sue her husband in tort for the protection and security of her property. In
Kenya, a husband is still liable for his wife’s torts. Both husbands have the
capacity to sue and be sued in tort. At common law husband could not sue his
wife in tort, and a wife could not sue her husband in tort except for the
protection of her own property.

The president

15
The Constitution of Kenya (section 14) provides that the President of Kenya is
not “liable to any proceedings whatsoever in any court”. It means that no civil
or criminal proceeding can be instituted against the president while he is office.

Heads of State and Diplomats

The Heads of foreign states, Diplomats of foreign mission and certain other
person connected to them are immune from the jurisdiction of the local courts.
Their immunity is provided by the Vienna Convention on Diplomatic Relation,
signed in 1961, the relevant articles of which are given the force of law in
Kenya by “The privileged and Immunities Act (Cap.179).

Corporation:
The cooperation can sue and be sued in their own names. They are liable to
actions in tort. A cooperation is also liable for torts committed by its servants
and agents. But if a servant of a cooperation commits a tort which is “ultra
vires” (Beyond the powers) then the cooperation is not liable. Similarly, a
cooperation is not liable for some torts of personal nature e.g. personal
defamation, battery etc.

Trade unions:
The trade unions have capacity to sue in tort but actions against them in tort
are limited. Section 23 of the Trade Unions Act (Cap.233) provides that no
action shall be brought against a trade union for torts committed by its
members or officials in respect of any act done in contemplation or in
furtherance of a trade dispute. For Example. If a trade union calls a strike, it
cannot be sued by an employer for the tort inducing a breach of contract.
A trade union can be sued for breach of contract. The members and official of a
trade union can be sued for actions in torts committed in their personal
capacity.

Persons of unsound mind

These are generally liable in tort unless intent is a necessary element and their
condition is such that they could not have formed such intent.
Morriss v. Marsden,(1952) Defendant took a room at a Brighton hotel. While
there he attacked the manager of the hotel (Plaintiff).It was established that
defendant was suffering from disease of the mind at the time of the attack that
he knew the nature and quality of his act, but he did not know that what he
was doing was wrong. Held: That as defendant knew the nature and quality off
his act he was liable in tort for the assault and battery. It was immaterial that
he did not know that what he was doing was wrong.

Aliens and Non-Citizens:

An alien is under no disability and can sue and be sued. However, an enemy
alien cannot sue, but if sued can defend himself.

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 Judicial Offences:
Judicial officers are protected from civil liability for any act done or ordered by
them in the discharged of their judicial functions. Thus, where a judge or
magistrate utters words which tend to reflect on a person’s reputation, Or
orders a party’s property to be attached in satisfaction of a judgment-debt, no
action can respectively be brought against his for trespass. Besides judicial
officers, officers of the court are also protected against civil liability for acts
done in pursuance of a judicial order or warrant. This means that a court
broker cannot be sued fro attaching property under a warrant duly issued by
court, if he acts within the powers conferred on him by the warrant. The
protection to judicial officers and officers of court is afforded by the Judicature
Act (Cap.8) section 6.

VICARIOUS LAIBILITY
Every person is obviously liable for his own wrongful acts. Liability in this case
is personal. In certain circumstances, however, a person may assume
responsibility for torts or wrongful acts committed by another person, e.g. an
employer may be held responsible for the torts of his employee. Liability in this
latter case is categorized as Vicarious Liability. So it is the liability of one
person on the behalf of the other person.
1. There must be Master/Servant relationship between the parties
concerned.
2. The servant must have been acting in the course of his employment at
the material time.

Once it is established that the wrongdoer was at the material time acting as a
servant of some other person, and that he was then acting in the course of his
employment,his master will be liable for any employers often find themselves
being sued for torts committed by their employees.

Who is a servant?
Ordinarily, the nature of a servant’s work should present no problem.
Unfortunately, Problems arise from the need to discharge a servant from a
independent contractor.
A servant is a person employed under a contract of service and acts on the
orders of his master. The master therefore controls the way the servant’s work
is done. On the other hand, an independent contractor is employed under a
contract for service and independent contractor is employed under a contract
for services and himself determines the way the work in question is done. An
independent contractor therefore does not act on the orders of his employer
and is his own master as regards the execution of the work he is employed to
do. Thus, if A owns a vehicle and employs B to drive it for him,, B is A’s
servant; but where A is not the owner of the vehicle and engages B (the owner

17
or driver) on special hire to drive him to some place (S),B is not a servant but
an independent contractor. Again where A engages B is not a servant but an
independent contractor. Again where A engages B to build a house for him, and
A himself directs the manners in which are complied with, B is a servant; but
where A engages B, a professional builder and relies on his expertise and
refrains from Interfering with the construction work is in this case an
independent contractor.

The distinction between a servant and an independent contractor is important

because an employer is liable for the wrongful acts of his employee only if the
latter is his servant; he is not liable where the employee is an independent
contractor. An independent contractor is personally liable for his we wrongful
acts.

Course of Employment:
An act is said to have been done by a servant in the course of employment
where it is proved to have been authorized or sanctioned by his master. Thus,
where the master authorizes his servant to do a wrongful act, he will be
responsible for the consequences of the servant’s wrongful act, Where the
servant is authorized to do a particular act in a proper manner, but does I in
a wrongful and unauthorized manner, the master is still responsible for the
consequences of the act. What is important is the fact that the act was
authorized by the master. Once master’s authority is proved it is considered as
the responsibility of the master and he is declared as liable for this tort.

Limpus v. London General Ominibus Co., (1862) An accident was caused by

the one of defendant’s drivers who drew across the road to abstract a rival
omnibus. The defendant pleaded in defence that he had issued each one of its
drivers a card which stated that they “must not on any account race with or
obstruct another omnibus. “Held: The defendant was liable and it was no
defence that it had issued specific instructions to its drivers not to race with or
obstructs other vehicles.

Rose v. Plenty, (1976) Plenty was employed as a milk rounds man, and his
work required the use of a vehicle called a milk float. “His employment contract
contained the following prohibition “Children and young persons must not in
any circumstances be employed by you in the performance of your
duties.”Plenty nevertheless employed the plaintiff, a 13-year old boy to help
him distribute the milk. On one occasion the plaintiff was sitting with his foot
danging down so that he might be able to jump of the plaintiff leg and broke it.
Held: plenty’s employer was liable because plenty, by employing the plaintiff,
did so for his employer’s business and the disregarded of the prohibition did
not take the employee outside the course of his employment.

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(NOTE: In the above case plenty himself also held liable to the plaintiff)

It is important to note that a master is liable for the tort of his servant only if
the tort was committed while the servant was acting in the course of his
employment .It sometimes happens, however, that a servant may do an act
which is completely outside the scope of his employment, e.g. a conductor may
decide on his own to drive his master’s vehicle .In this case the servant is said
to be on a frolic of his own and the master is not liable for his wrongful acts.

Vicarious Liability in Practice:

Besides Employer/Employee relationship including Government/servant
relationship) there are certain other instance in which the principle of vicarious
liability applies .One of these is to be found in the law of agency: a principle is
liable for torts committed by his Agent where such torts are committed in the
course of an Agent’s duties. Parent. Child relationship, too, may give rise to
vicarious liability on the part of the committed by his child unless he has been
negligent in permitting his child to use a dangerous thing or in failing to
exercise proper control and supervision.

Newton v. Edgerloy, (1959) A father allowed his 12-year old son to use a
shotgun. He ordered the son never to use it in the presence of other children
but failed to ensure that his order was obeyed. While the son was using the
shot-gun, he injured the plaintiff .Held: The father was vicariously liable for the
son’s tort.
Also since a corporation is an artificial person, most of its tortuous liability is of
a vicarious nature.

Liability for Independent Contactors:

An employer is not liable for the torts of an independent contractor or of any
servant employed by the contractor. This rule been based on the fact that the
employer does not have strict right of exceptions to this rule .It means an
employer will be still liable for the actions of an independent contractor in the
following cases.
(a)Where the employer retains his control on the contractor.
(b)Where contactor made is itself a tort e.g. a nuisance.
(c)Where the rule in Ryland’s v. Fletcher, (1866) applies.

STRICT LIABILITY
Strict Liability is an exception to the fault principle. It is liability without fault.
Where a tort is one of strict liability there is no need to prove fault on the
defendant’s part. Once the plaintiff is proved to have suffered damage from the
defendant‘s wrongful act, the defendant is liable notwithstanding with there
may have been no fault on his part. A specific instance of strict liability is
afforded by the Rule in Ryland’s v. Fletcher discussed below.

19
Although strict without fault but it does not mean that wrongdoer or tortfeasor
has no defence at all. Certain defences may be available in some specific
circumstances in case of strict liability.

We may also distinguish between absolute liability and strict Liability. Where
there is absolute liability, a wrong is actionable without proof of fault on the
part of the tortfeasor and in addition there is no defence whatsoever to the
action. Where there is strict liability, a wrong is actionable without proof of
fault but some defences may be also available.

Strict liability maybe considered in the following cases;-

(i) The Rule in Ryland’s v. Fletcher, (1866).

(ii) Liability for fire, and
(iii) Liability for animals

The Rule in Ryland’s v. Fletcher

The following statement is commonly called the Rule in Rylands v. Fletcher:
“The person who, for his own purposes brings on his land and collects and keep
there anything likely to do mischief 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 consequences if its escape.”

This is a rule of strict liability and negligence in this case is irrelevant. This
rule was formulated on the basis of the following case:-

Ryland’s v. Fletcher, (1866) The defendants constructed a reservoir on their

land for the purpose of supplying water to their mill. The site chosen had a
disused and filled up shaft of an old coal-mine, whose passages communicated
with the adjoining mine of the plaintiff. But this fact was not known to the
defendant, who therefore took no precaution against it. When the reservoir was
filled, the water escaped down the shaft into the plaintiff mine, flooding it and
causing damage. Held: the defendants were liable and it was immaterial that
there was no fault on their part.
The Court considered that the situation that arose in the above case was the
first of its kind. There was no establishment rule based on which the
defendants could be made liable. Yet it was clear that the damage suffered by
the plaintiff was caused by the defendant and that the circumstances called
for compensation to be paid by the defendants to the plaintiff .The court
therefore formulated the above Rule (the Rule in Ryland’s v. Fletcher)and on
the basis of it made the defendants liable even though no fault could be
proved on their part. In Ryland’s v. Fletcher itself the defendant for their own
purposes brought on to their land water, collected and kept it there in a

20
reservoir specially constructed for that purpose. The water was something
likely to do mischief if it escaped. It did escape down the shaft and actually did
mischief since it escaped .It did escape down the shaft and actually did
mischief since it escaped. It did plaintiff’s mine. The damage to the plaintiff’s
mine was the natural consequence of the escape of the water. Accordingly the
Rule Formulated by the court applied and the defendants were liable to the
plaintiff.

It should be observed that the Rule refers to “anything likely to do mischief”.

Although in Ryland’s v. Fletcher it was water which escaped, obnoxious fumes,
poisonous leaves on the branch of a tree, bees from a bee-farm, electricity etc.

Limits of the Rule

The application of the Rule in Ryland’s v. Fletcher is not automatic. The
following conditions must be satisfied before the rule can apply:
(i)Non-Natural User:

There must be a non-natural user of land, i.e. the defendant must have used
his land in a way that is not ordinarily natural. In other words, and there must
be an artificial accumulation of things not naturally found on the defendant’s
land: this is the basis of the Rule; just as there was an artificial accumulation
of water in a reservoir by the defendants in Ryland’s v. Fletcher: the water was
not naturally found on the defendant’s land and by bringing collecting and
keeping it there the defendants had engaged in a non-natural user of their
land. Another instance is afforded by the following case.

Need for Escape:

There must be an actual escape from the defendant’s land. Thus, the non-
natural user of land must be accompanied by an escape of the thing which is
the source of the mischief in question. It will be recalled that in Ryland’s v.
Fletcher the water did escape from the defendants’ land to the plaintiff mine.
Indeed, for the Rule under consideration to apply, it is not sufficient that there
was an escape: the escape must be from the defendant’s land to a place outside
it, otherwise if the thing escape and causes damage within the defendant’s
land, the Rule does not apply.

Read v. J. Lyons &Co., (1997) The defendant were authorized by the

Minister of supply to manage and control a munitions factory for the purpose
of manufacturing high-explosive shells for the government .The plaintiff was
directed to work as an inspector I the factory. The plaintiff was in the
defendant’s shell-filling shop when an explosion occurred, killing one person
and injuring several others, including the plaintiff. In her action against the
defendants the plaintiff sought to rely on the Rule in Ryland’s. v. Fletcher.
Held: Escape for the purpose of the Rule in Ryland’s v. Fletcher means escape

21
from land in the occupation or control of the defendant to a place outside it,
and since the plaintiff was injured while on land under the occupation and
control of the defendant; there was no escape and the Rule did not therefore
apply.

(ii)Natural User of Land

One of the conditions for the application of the rule is that there must have
been a non-natural User of the land. Where there is a natural user of the land,
the rule does not apply and the defendant is protected against the Rule. It is
pointed out: “It is not every use to which land is put that bring into play that
principle. It must be some special use bringing with it increased danger to
others, and must not merely be the ordinary use of the land or such a use as is
proper for the general benefit of the community”. Therefore the plaintiff’s action
did not succeed in the following case.

Ross v. fedden (1972) The supply and overflow pipes of a water-closet burst,
looting the premises of the plaintiff which were on the lower floor of a house
shared with the defendant. Held: The pipes, being for the convenience and use
of the defendant, were a natural user of the premises and there could be no
liability under the Rule.

(iii)No Escape
Also given as one of the conditions for the application of the Rule is the need
for an escape. The absence of escape is therefore a possible defence to the
defendant.

Defences in Rule Ryland’s v. Fletcher

The case of Ryland’s v. Fletcher itself suggested three defences available to a
defendant in an action brought against him under this Rule. This are:
(a) Plaintiff’s Fault:
Where the escape in question resulted from some fault on the part of the
plaintiff, this may be pleaded by the defendant as a defence to an action
brought him by the plaintiff under the Rule. For in this plaintiff has himself
brought about his own suffering.
(b) Act of God
Act of God is also a defence to an action brought under the Rule.
(c) Act of stranger
Where the escape is caused by the intervention of persons over whom the
defendant has no control and whose intervention was not foreseeable, this is a
defence to an action brought under the Rule, particularly where the stranger’s
act was deliberate or intentional.

Rickards v. Lothian (1913) The plaintiff leased second-floor offices in a

building occupied by the defendant. His stock-in-trade was seriously damaged
by water from a fourth-floor lavatory basin. The outlet of the lavatory basin had

22
been plunged with nails, soap, penholders and string and its tap had been
turned fully on. According to the defendant’s caretaker all was well when he left
the place previous evening. But it was clear that the plugging of the outlet and
the turning of the tap was the malicious act of some person. Held: The escape
of the water had been caused by the malicious act of a third party over whom
the defendant had no control; the control; the defendant could not therefore
be liable under the Rule in Ryland’s v. Fletcher.
The above case pointed out, however, that even if the escape of the water had
been caused by the defendant this would still not be a proper case for the
application of the Rule in Ryland’s v. Fletcher. The reason for this is given
below

In addition to above defences, some general defences like “volenti non fit
injuria”, statutory authority are also available in this rule.

The Rule in Ryland’s v. Fletcher can also apply in the following cases.
1. The liability for fire
2. The liability for animals
The liability for fire due to negligence is actionable in tort. It is also a case of
strict liability. Similarly, if a fire starts without negligence but it spreads due to
negligence of a person then that person will be liable for damages caused by
the spread of the fire.

The liability for animals may arise I both nuisance and negligence. An occupier
of land is liable for damage done by his cattle if they trespass on the land of his
neighbors and thereby cause damage. Similarly, a person who keeps dangerous
animals like lions, leopards, dogs, etc is liable strictly for any injury by such
animals, even in the absence of negligence e.

SPECIFIC TORTS

The word tort refers to civil wrongs committed by different persons. Some
specific torts are:
1. Trespass
2. Nuisance
3. Negligence
4. Defamation

The main characteristics of this tort together with damages and their defences
are explained as under:

TRESPASS
There are three types of trespass. These are:-
1. Trespass to land;

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 2. Trespass to the Person; and
3. Trespass to Goods

Trespass is actionable per se i.e. without proof of any damage: once it is

established that a trespass has been committed, the plaintiff is entailed to legal
redress, whether or not he has suffered damage; the actual damage suffered (if
any) merely gauges the extent of the redress (or compensation) which the
plaintiff is entailed to. Trespass, as such, is a classic illustration of the
principle ‘injuria sine damno’.It is this fact that distinguishes it from negligence
which is actionable only upon proof of damage.

Trespass to Land
Trespass to land is committed where the plaintiff’s possession of land is
wrongfully interfered with. It is the fact of possession rather than ownership
that is important: as such the plaintiff may be anyone in possession of the
land, whether he is the owner or a tenant. Wrongful interference with
possession in relation to the plaintiff’s land may take the form of wrongfully
entering upon it, or wrongfully remaining on it, or wrongfully placing or
projecting any material object on it.

Trespass by wrongful Entry

This is committed where there is physical contact with plaintiff land, however
slight. It includes acts like encroaching on the land or walking through
authority, sitting on the plaintiff’s fence or putting a hand through his window
etc. Also an abuse of a right of entry may constitute a trespass, e.g. a person
authorized to enter premises for the purpose of repairing them becomes a
trespasser when he picks and eat fruits on the premises without authority. If a
person misuses this authority, it is also known as trespass.

Trespass by remaining on land

This type of trespass is committed by a person who, having been originally
authorized to enter upon land, is subsequently asked to leave such person
becomes a trespasser when he fails to leave the land within a reasonable time.

Trespass by placing things on land

Trespass by placing things on land is committed by him who places any
material thing on the plaintiff’s land, or who allows such material thing or
noxious substance, to encounter (or cross the boundary of) the plaintiff’s land.
This type of trespass is like nuisance, but the two are different in the following
respects.
1.In trespass the injury is direct since it effects the plaintiff’s possession; but in
nuisance the injury is direct because it is the plaintiff’s comfort and convince
in the use and enjoyment of his land that is affected, rather than it possession.

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2. Another distinction arising from the explanation given above is that while
trespass relates to possession of land, nuisance relates to the user or
enjoyment of land: in trespass the plaintiff’s possession is at stake, while in
nuisance it is use and enjoyment of the land is at stake.

3. Trepass is actionable per se, whereas nuisance, just like negligence is only
actionable upon proof of damage .The following case is instructive

Kelsen v. Imperial Tobaccos Co...Ltd, (1957) The defendant erected an

advertising sigh post which protruded by 8 inches into the air-space above the
plaintiff’s land .Held: The defendant act constituted a trespass but not a
nuisance since the plaintiff had suffered no inconvenience.

Continuing Trespass:
As long as the act constituting a trespass remains, without the trespasser
doing anything to avoid it, there is said to be a continuing trespass. This arises
where, for instance, the trespasser chooses to remain on the plaintiff’s land or
fails to remove there from any matter that is the cause of the trespass. Where
there is a continuing trespass, the plaintiff may bring several actions against
the defendant. This is because if the trespass continues, the plaintiff continues
to suffer and there is always a fresh cause of action.

Trespass by relation:
The plaintiff’s possession of land relates back to the time when he first
acquired a right to possess the land and he is deemed to have been in
possession of it from that time. A possessor of land may therefore sue any
person who committed an act of trespass on the land even before he himself
took actual possession of it. Since the plaintiff’s right of action is based on a
title which legally relates back to an earlier period, the trespass in question is
known as trespass by relation. It is all based on the doctrine of relation back.
Example: A owns land which he selles off to B. A year passes before B has
taken actual possession of the Land: but in the meantime C has committed an
act trespass on the land; B may sue C for trespass notwithstanding that he
had not yet taken possession of the land when the act of trespass was
committed; B’s title relates back to the time when he become entitled to take
possession i.e. the time when he bought the land from A.

Is Trespass a Crime?
Trespass to land is normally a civil wrong, but it may give rise to criminal
proceedings in some cases. The Trespass Act (Cap.294) states that a trespasser
can be prosecuted criminally if he enters on somebody’s land with intent to
steal goods or commit any other offence.Otherwise.a trespasser to land is a tort
and it is actionable per se, i.e. without proof of special damage.

Defences

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The main defences to an action for trespass to land are as under:
(i)Prescription:
Land acquired by possession is also said to have been acquired by prescription.
The new owner may plead title by prescription as a defence to an action
brought by the previous owner to recover the land. Defendant may also plead
prescription, as by proving a right of common grazing or right of way over the
plaintiff’s land.
(ii)Act of Necessity:
The necessity may be pleaded as a defence to an action of trespass to land
entry to put fire for public safety.
(iii)Statutory authority
Where the authority is conferred by law, whether by statute or by court order,
this is also an available defence e.g. the authority of a court broker.
(iv)Entry by licence:
An entry authorized or licensed by the plaintiff is not actionable in trespass
unless the authority or licence given is abused.

Remedies:

The remedies in aspect of trespass to land include:

(i) Damages: The plaintiff may recover monetary compensation from the
defendant, the extent of which depends on the effect of the
defendant’s act on the value of the land in question.
(ii) Ejection: Where a person wrongfully enters to
remains on another’s land, He may be ejected using reasonable force;
unreasonable force may entail liability for assault. An ejectment may
also be based on a court order (an eviction order)
(iii) Action for Recovery of Land: The plaintiff may bring an action to
recover his land from the defendant where there has been a wrongful
dispossession. It is common for such action to be coupled with the
above two remedies.
(iv) Injunction: In addition to the above remedies, an injunction may be
obtained to ward off a threatened trespass or to prevent the
continuance of an existing one.
(v) Distress damage Feasant: In the case of trespass by placing things
(or in the case of chattel trespass) the plaintiff has a right to detain
the defendant’s chattel or animal which is the cause of the trespass in
question.

TRESPASS TO THE PERSON

Like trespass to land, trespass to the person is three-fold. It may consist of

assault, battery or false imprisonment.

Assault:

26
An assault is committed by a person when he threatens to use force against
the person of another, thus putting the other person in fear of immediate
danger; e.g. shaking a fist or pointing a gun menacingly at the person of
another. It is important that the person threatened must be put in fear of
immediate danger, otherwise there will be no assault. An assault is a tort as
well as a crime.

Battery:
While assault is constituted by the mere use of a threat calculated to induced
fear is defined as the tactual application of force against the person of another
without lawful justification; e.g. Punching the plaintiff’s nose, smacking his
bottoms or slapping him on the chick, etc. An act an only amount to a battery
if it intentional and voluntary. Thus, a person who suffers injury in the process
of scrambing for a taxi will find it difficult to maintain an action for battery
against anyone.
False Imprisonment
There is said to be a false imprisonment where a person is totally deprived of
his freedom without lawful justification .Whether physical or otherwise, e.g.
Locking up a person I a room whose only exist is the locked door, or
surrounding him such that it is practically impossible for him to leave where
he is, or telling him that if he leaves where he is standing he will be shot using
a gun which he knows to be physically present at that time. It is interesting to
note that a false imprisonment may be committed even without the plaintiff’s
knowledge, e.g. by locking him up in his bedroom while he is asleep and then
reopening the door before he has awoken. On being informed of these facts the
plaintiff may sue the person who did the locking and reopening of his bedroom.
The length of time during which a false imprisonment lasts is immaterial but is
a relevant factor in gauging the extent of the defendant’s liability in damages.

Defences
(i) Parental Authority: A person has a right to reasonably chastise or
discipline his children. This means that where a parent beats his
child or looks him up in room for some time by way of reasonable
chastisement, he cannot be sued for battery or false
imprisonment .Similarly, if a parent gets a knife and threatens that he
will cut off his child’s mouth unless the child stops abusing grown-
ups, no action can be brought against him for assault.

When a child is at school his entire parent’s rights of ordinary control

over him are delegated to the school authority (or teachers) and are
exercised by the latter in ‘loco parentis’. Reasonable chastisement by
the school authority, e.g. reasonable punishment by teachers is not
actionable in tort.

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 NOTE: According to R.V. Jackson (1891) a husband has no right to
chastise his wife.
(ii) Judicial Authority:
An act done under order of court is not actionable as a trespass. We
saw at the beginning of this Chapter that acts done in a judicial
capacity are not actionable in tort. It follows that where a judge orders
a corporal punishment of a number of strokes, no action for battery
can be brought against him or the person administering the stokes.
(iii) General Defences
The defendant may also rely on the general defences already considered.
Self-defence is a particularly viable defence to assault and battery. Volenti
(or the plaintiff’s consent), may also be pleaded. Thus, a patient who has
consented to a medical operating cannot turn round and sue the surgeon
for trespass (battery).Similarly, a player or spectator who suffers injury in
the course of a game whose rules are being followed cannot sue for trespass.
Also, statutory authority may be pleaded as a defence.

Remedies:
1. Damages:
An award of damages is the most obvious and usual remedy. The amount of
damages awarded depends on the circumstances of each case, having
regard to matters like injury suffered, the period of false imprisonment etc.
2. Habeas Corpus
The writ of Habeas Corpus is a remedy to false imprisonment. The writ
directs the person in whose custody the applicant detained to produce him
before the High Court; the Court may order his release if it appears that
there are not sufficient grounds for detaining him.

TRESPASS TO GOODS, CONVERSION AND DETINUE

A trespass to goods is committed by a person who directly and intentionally
interferes with goods in the possession of another without lawful
justification. The plaintiff may be a person either in possession or entitled
to immediate possession of the goods, The wrongful interference may be
constituted by removing the goods from one place to another (e.g. taking
them away from the plaintiff’s possession), using the goods (e.g. wearing the
plaintiff’s shirt),or destroying or damaging the goods (e.g. tearing the
plaintiff’s shirt).

Note: A finder of lost property is not liable for trespass where the owner of
the property is not known to him and cannot be easily ascertained.

Conversion

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 Like trespass to goods, conversion is based on possession and is actionable
only if the defendant’ act was intentional but not where the defendant was
merely negligent. Conversion is constituted by a dealing with goods in a
manner that is inconsistent with the right of the person in possession of the
goods or entailed to their immediate possession, ,e.g. Where A intentionally
sells B’s goods to C without any authority from B, or where A intentionally
delivers B’s goods to some other person without any justification at all.
Every person is presumed to intend the natural and probable consequences
of his intentional acts, and it follows from this that where a person used the
property of another in such away as to risk its confiscation he is liable for
its conversion.

Moorgate Mercantile Co. v. Finch,(1962) A borrowed a care from .He used

the car to smuggle contra-band watches, and in the process he was arrested
and the car confiscated. Held: A was liable for conversion of the car because
he had intentionally, acted in a manner that was likely to lead to its
confiscation.
Instances of conversion do commonly overlap those of trespass. But is must
be remembered that there are certain acts which are actionable strictly as
trespass but not as conversion. In conversion there is a denial of the
plaintiff’s title, but this is not necessarily so in trespass. Moreover, it is
common for conversion to be committed by a person in possession of the
goods in question 9e.g a bailee) but it would be unusual for such person to
commit a trespass on the goods. Where the tort of conversion is established,
the damages awarded equal the value of the goods converted, while in
trespass this is not necessarily the case.

DETINUE:
Detinue is committed where goods are wrongfully withheld or detained from a
person entailed to their immediate possession, including a withholding by a
bailee from a bailor. Thus, where A borrows a hoe from B and subsequently
fails or refuses to return it to B when its return is due, B may sue A for detinue
and A will be liable even where the hoe is proved to have been stolen from him
at the time when its return was due. But before the action can be maintained,
it must be proved that B demanded a return of the hoe and A failed and
or/refused to return it. Detinue has an advantage over conversion in that its
entails the plaintiff to have the goods specifically delivered to him and its only
where this not feasible that damages may be awarded instead. Conversion, on
the other hand, is primarily remedied by an award of damage.

DEFENCE
Not many defences are available to a defendant in an action brought in respect
of a wrong to good. But where defendant has a right to possess the goods he

29
has a good defence, e.g. a seller exercising a right of lien. Besides general
defends like statutory or judicial authority may be relied upon.

REMEDIES
If the plaintiff succeeds he can recover either the goods or their value. He can
claim the full value of goods and damages for any inconvenience suffered by
him. The Court also order at its direction specific restriction of the goods if the
award of damages is not an adequate remedy.

NUISANCE
This tort is committed whenever a person is wrongfully disturbed in the use
and enjoyment of his land. Generally, it arises form the duties owed by
neighboring occupiers of land: no one should use his property in a way which
is likely to affect his neighbor’s use of his own land. Thus, if A and B are
neighbors, and A owns plot X while B owns plot Y,A may use plot X in a way he
chooses but he must not in doing so effect B’s use of plot Y,or else he will be
liable in nuisance.
Although the tort of nuisance is usually committed only where the plaintiff and
defendant are owners or occupiers of land, in certain circumstances the tort
may be committed in places like a highway or even a river. There are two types
of nuisance private nuisance and public nuisance.

Private Nuisance
A private nuisance is committed where a person’s private rights in his land are
wrongfully disturbed whether physically or by allowing noxious things to
escape on to his land. Thus, it is nuisance to obstruct an easement or private
right or way; or to allow a weak structure to hang precariously above the
plaintiff; or to allow smoke, noise, gas, funes etc., to escape onto the plaintiff’s
land thereby inconveniencing him: etc.

Holywood Silver foxes v. Emmett,(1936) The plaintiff was a breeder of silver

foxes, which were very sensitive to any disturbance during seasons .The
defendant developing the neigbouring land as a housing estate and though that
the plaintiff’s business might discourage his customers. He instructed his son
to fire a gun near the fox cages. The son did so and after four days the plaintiff
sued. Held: The act of defendant through his son amounted to a nuisance.

Public Nuisance
Public nuisance is also known as common nuisance. It affects the comfort and
convince of a class of persons but not necessarily every member of the music
festival accompanied by large-scale noise. It is also a public nuisance to do any
act which is a source of danger to the public, e.g. releasing a large quantity of
petrol onto the highway. In all these cases, it is not the private rights of an

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individual that are affected but the comfort and convinced of the community
around or the public at large.

Soltau v. De Held, (1851) The plaintiff resided next to a Roman Catholic

Chapel. The defendant, a priest, took it upon himself to ring the chapel bell
throughout the day and night. The plaintiff brought an action to stop it. Held:
The ringing of the bell was a public nuisance but the rest of plaintiff’s house
was next to the chapel he suffered more than the rest of the community and
was therefore entailed to bring an action to stop it.

Continuing Wrong
Generally, nuisance is actionable only when it is a continuing wrong. A
disturbance or inconvenience on an isolated occasion will not ordinarily be
treated a as nuisance.

Bolton v.Stone (1951)The plaintiff, while standing on the highway just outside
her home, was injured by a cricket ball struck from the defendant’s ground
which adjoined the highway. The ground had been used for cricket for over 80
years and it was very rare for balls to be hit over the fence, which was 10 feet
high above the highway and 17 above the pitch. The ball had travelled over 100
yards before hitting the plaintiff. Held: An isolated act of hitting a cricket ball
onto the highway in circumstances like those of this case could not amount to
a nuisance.

It is only in very exceptional circumstances that an isolated act may entail

liability in nuisance. An example of this is afforded by Ryland’s v. Fletcher
where, as we saw above, water escape only on one occasion causing damage to
the plaintiff mine.

The plaintiff in Nuisance

Since private nuisance generally covers only damage to property or its
enjoyment, the plaintiff in an action brought to remedy a nuisance must show
that he has title to, or at least some interest in the property which is alleged to
have been damaged or whose enjoyment is alleged to have been affected by the
nuisance. Otherwise, the action will not succeed.

Molone v. Laskey, (1907) A bracket supporting a water tank in a house fell by

reason of vibrations by the defendant’s engine in adjoining premises and the
plaintiff was injured. The plaintiff had no interest in the premises; she merely
resided with her husband, who was manager of the company that had leased
the premises. Held; The working of the engine was a nuisance, but the plaintiff
could not recover anything as she had no interest in the premises.

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The law of nuisance protects only ordinary or normal persons. A plaintiff who
is abnormally sensitive, e.g. because of old age or heart attack, has no special
protection and cannot recover in nuisance for injury which a normal person
would not have suffered. Similarly, a plaintiff who has put his premises to a
use or trade which is delicate or abnormally sensitive cannot recover I
nuisance where it is proved that the damage suffered would not have arisen if
the premises had been put to an ordinary use or trade.

Robison v. Kilvert, (1889) The plaintiff carried on an exceptionally delicate

trade in which he used an equally delicate stock of paper. This stock of paper
was damage by heat from the defendant’s premise below. The heat was
required for the defendant’s business of paper or manufacture. Held: The
plaintiff could not recover in nuisance as the damage would not have occurred
if he were carrying on an ordinary trade; and in any case the defendant’s use of
his property was reasonable.

The Defendant in Nuisance

The person liable in nuisance is primarily the occupier of the premises which
are the source of the nuisance; including a tenant liability does not necessarily
fall on the owner of the premises, although he too may be success fully sued:

Mint v Good (1951) A boy of 10 years was walking along a public footpath
when a wall collapsed on him and injured him. The defendant, the owner of the
premises from which the wall collapsed, had let the premises in question to
tenants; but the plaintiff sued the defendant himself. Held: The defendant was
liable.

Adopted Nuisance:
Where a nuisance is accused by one person but is adopted by another, the
person so adopting it is liable and cannot plead that the nuisance was not
created by him.

Sedleigh-Denfiels v. o’ Callaghan,(1940)A trespasser placed pipe in a ditch

which was on the defendant’s land, without the knowledge or consent of the
defendant. The pipe was meant without the knowledge or consent of the
defendant. The pipe was meant to a carry of rainwater and all its down was.
When the defendants became aware of the pipe they used it to drain their won
field. Subsequently the pipes become blocked and the water overflowed onto
the plaintiff’s land. Held: The defendants were liable in nuisance, because they
had adopted the trespasser’s act as their own.

De Minimis Non Curat Lex (or Triviality)

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A person aggrieved by a nuisance can only maintain an action where the
damage suffered by him is substantial. But if the damage suffered is so trivia,
minor or negligible that no reasonable person would have to complain, no such
action may be maintained; and if sued the defendant may plead ‘de minimis no
curat lex’.
(ii)Reasonable Use of Property
If the defendant can prove that the nuisance complained of resulted from a
reasonable use of his property, as in Robison v. Kilvert discussed, this will
some extent afford him a defence.
NOTE: Whether the use to which the property was reasonable in the
circumstances is determined from the standpoint of the victim of the nuisance,
because the essence of this tort is that no person ought to be wrongfully
disturbed in the use and enjoyment of his land.
(iv) Prescription:
A prescription right to continue a nuisance is acquired after twenty years.
Thus, where a nuisance has been committed on the plaintiff’s landform a
continues period of twenty years, the plaintiff cannot thereafter maintain an
action in respect of the nuisance; and if he does, the defendant may plead
prescription in defence.
(iv)Public Benefit
Public benefit, as a defence to an action brought to remedy a nuisance, has
only a limited application. Private right must generally be respected. The
only exception is where there is statutory authority to derogate from such
rights. But even then there is need to act reasonably and within the
statutory limit; otherwise the person acting will be liable in nuisance,
notwithstanding that his act was intended to benefit the public. Thus,
where an authority had general powers to provide hospitals and is set up a
fever hospital in a heavily populated area, it was held liable in nuisance to
people in the neighborhood (the hospital could have conveniently been set
up elsewhere).
(v)General Defence:
Some of the general defences already discussed, e.g. volenti non fit injuria
may be relied upon by a defendant in an action brought against him in
respect of a nuisance.

Remedies:
1. Abatement:
This remedy is by way of self-help. A person aggrieved by a nuisance is at
liberty to abate (or stop) it. But the act of abatement must be peaceful
and, where feasible, after notice to the tortfeasor; otherwise, by a
dramatic turn of events, the aggrieved party might, to abate nuisance,
render himself liable in nuisance instead.
Chirsstie v.Davey, (1893) The plaintiff used to conduct music lessons in
his room, which was adjacent to the defendant, who was annoyed by the

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 disturbance, continuously banged the partitioning wall so as to disrupt
the plaintiff’s music lessons. Held: The plaintiff was entailed to an
injunction to restrain the defendant from interrupting the music lessons.
(ii)Injunctions:
This is a remedy which is granted to the plaintiff to restrain the defendant
from committing the nuisance. It is awarded where the nuisance already
exist or is impending.
(iii)By this remedy, the plaintiff is entitled to full compensation in monetary
terms, so as to make good the damages caused by the defendant’s nuisance;
as far as money can do it, but the plaintiff can only recover what was
reasonably foreseeable as likely to result from the defendant’s act. In this
connection, regard must be had to the gravity of the nuisance and the
extent to which the defendant’s act be said to have been unreasonable, or
wrongful.
Davey v. Harrow Corporation, (1858). The plaintiff house was damaged by
the penetration of roots which came from trees on the adjoining land of the
defendant. The plaintiff brought an action for damages for nuisance. Held:
The plaintiff was entailed to succeed in his action.
NOTE:
The above case observed that if the tees encroached onto adjoining land,
whether by branches or roots, and caused damage, an action for nuisance
would lie and it was immaterial whether the trees were planted or self-
grown.

NEGLIGENCE
Negligence is one of the most important torts in the law. It was defined by
judge Alderson in case of Blyth v. Birmingham Waterworks co. (1856) in the
words:
“The omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man not do”.

As a tort, negligence consists of the following three elements:

1. The duty of Care
2. Breach of the Duty of Care
3. Injury to the plaintiff
The Duty of care
Lord Atkin defined a duty of care in Donoghue v. Stevenson (1932) as the duty
to take reasonable care to avoid acts or omission reasonable foreseeable as
likely to cause injury to your neighbor. This raises the question: who is my
neigbour? Lord Atkin goes on to say that your neighbor in law is a person who
is closely and directly affected by your act that you ought reasonably to have
him in your contemplation.

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In the case of a driver very other road user (including his own passenger and
also a pedestrian) is his neighbor in law; the driver owes all these duty of care;
the duty to have regard to them and to drive or use his vehicle safety. An
employee is his employer’s neighbor in law; the employer owes him a duty of
care; the duty to maintain a safe system of work. A patient too is a neighbor to
the hospital authority responsible for his treatment; the hospital owes him a
duty to avoid act that might be injurious to his health. Also, an occupier of
premises owes his visitors a duty to maintain the premises in a safe condition
or good state of repair, while a manufacturer or producer of goods owes his
consumers a duty to ensure that his goods are free from anything that might
cause damage or injury to the consumers.

Breach of the duty

It is important to distinguish between the duty of care and the standard of
care. The duty of care, as we have seen, answers the question whether the
defendant was under any legal obligation towards the plaintiff .The standard of
care, on the other hand, is a yardstick by which the defendant’s conduct is
measured; it answers the question whether the defendant did what a
reasonable man would have done in the circumstance. Thus, the standard of
care required of every person is that of the reasonable man.
The duty of care is said to be breached where the defendant fails to exhibit that
standard of care required of him. In other words, the defendant is said to have
breached his duty of care where a reasonable man in his position would not
have done what he did.

It remains to consider who is “a reasonable man”. Of ordinary prudence. At

least one judge has described him as the “man on the city bus”. Thus, in
looking for the reasonable man we do not look for a person possessed of any
special attributes or qualities; but it all depends on the circumstances of each
case. In an accident case, for instance, the question to be asked is: what would
a reasonable driver, properly directing himself, have done in the
circumstances? In which case what must be borne I mind is an ordinarily
prudent driver, not necessarily one who has been to a diving school. But where
a person professes to have some specialized knowledge or skill,e.g an
advocate ,accountant or a doctor, the standard of care required of him is not
that of the man on the city bus; rather he must do what a reasonable
advocate, accountant or doctor, properly directing himself, would have done in
the circumstance.

Injury to the Plaintiff

Proof of the existence of a duty of care on the part of the defendant, and its
breach by the defendants, is not enough to establish liability in negligence. The

35
plaintiff must go further and prove that he has suffered damage, or injury, as a
result of the defendant’s breach of his duty of care. But even then, the plaintiff
can only recover damages for injuries suffered if a reasonable man in the
defendant’s position ought to have foreseen that his act or omission would
result in injury to the plaintiff. The test applied is therefore that of foresee
ability. Any injury that was not reasonable foreseeable is said to be too remote
and cannot be recovered by the plaintiff.

Cases on Negligence Generally

Donoghue v. Stevenson, (1932). A man bought from a retailer a bottle of

ginger –beer manufactured by the defendant .The man gave the bottle to his
lady fried who became ill from drinking the contents. The bottle contained the
decomposed remains of a snail. The bottle was opaque so that the noxious
substance could not have been seen and was not discovered until the lady was
refilling her glass.The consumer sued the manufacturer in negligence. Held: (by
the house of Lord): that the manufacturer was liable to the consumer
negligence.

Delieu v. White &Sons, (1901) The plaintiff a pregnant woman was sitting
behind the counter of her husband’s bar when suddenly a horse was driven
into the bar. Fearing for her personal safety she suffered nervous shock and
gave birth to a premature baby. Held: The plaintiff entailed to recover in
negligence.

Hambrook v. Stokes, (1925). The defendant left their lorry at the top of a
steep hill. Soon, it began to run away down the hill. The plaintiff wife, who had
left her children round a corner, received a severe nervous shock for fear of her
children’s safety; and as a result, she died .Held: The defendant was liable.

Fatal Accident Where the Victim of Negligence is Dead:

Negligence sometimes results in the death of the victim. In such cases,

obviously the victim himself cannot sue. But this does not mean that the
tortfeasor is left free. The action is brought of the members of the victim’s
family and may be instituted by his executor or administrator or by and in the
names of the members of his family. These provisions are like those of the
English Fatal Accident Acts on which Hambrook v. Stokes was based (in that
case, whose facts are given above, it, was the victim husband who sued).

Proof of Negligence
Like in any other civil action, the burden to prove negligence generally lies on
the plaintiff; he must prove that the defendant owed him a duty of care, that

36
the defendant has breached that duty and that he (the plaintiff) has suffered
damages in consequence. In certain cases, however the plaintiff’s burden of
proof is relied by the doctrine of ‘res ipsa loquitur’, where it is applicable.
Res ipsa loquitur literally means: The facts speak themselves. ‘This is so where
an accident order occurs in circumstances in which I ought not to have
occurred; e.g. Where a car travelling on a road and overturns; where a crane
suddenly collapses; where a barrel of flour suddenly drops from a warehouse;
where a heavy load suddenly falls off a moving vehicle ;etc. In all these (and
other like) cases the accident ought not to occur unless there was negligence
on the part of someone, presumably the defendant. An explanation from the
defendant is therefore called for. According, where the circumstances of a case
are res ipsa loquitor there is an interference of negligence on the part of the
defendant, i.e. the defendant is initially presumed to have been negligent.
Because of this, a provisional burden is put on the defendant to give a
reasonable explanation as to how the accident might have occurred. In the
absence of such explanation there is nothing to rebut the presumption of
negligence and the defendant there is accordingly held liable. A judge has
explained the operation and effect of the doctrine of res ipsa loquitor in the
following terms:

“The doctrine of res ipsa loquitur is one which a plaintiff, by proving that an
accident occurred in circumstances in which an accident ought not to have
occurred, thereby discharges in the absence of any explanation by the
defendant, the original burden of showing negligence on the part of person who
caused the accident. The plaintiff, in those circumstances, does not have to show
any specific negligence, he merely shows that an accident of that nature should
not have occurred in those circumstances, which leads to the inference, the
only reasonable interference, that the only reason for the accident must therefore
be the negligence of the defendant.

(Embu Public Road Services Ltd v. Riimi, 1968)

Res ipsa loquitur is a rule of evidence not of law. It merely assists the plaintiff
(where applicable) in proving negligence against the defendant. But before it
can be applied, three conditions must be satisfied:
1. The thing inflicting the injury(e.g. a vehicle) must have been under the
control of the defendant or someone over whom the defendant exercises
control; (e.g. his driver)
2. The event must be such that it could not have happened without
negligence.
3. There must be no evidence or explanation as to why or how the event
occurred.

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 Embu Public Road services v. Riimi,(1968) The plaintiff husband, a
passenger in the defendant’s bus when the bus overturned. The accident
was caused by the breakage of the main spring of the road but, which put
the driver into a position of emergency. The bus was travelling along
straight stretch of road at the time of the accident, and there was a lapse of
time between the breaking of the spring and the overturning of the bus.
Held: 1) Where the circumstances of the accident give arise to the
interference of negligent the defendant, in order to escape liability, has to
show that there was a probable cause of the accident which does imply
negligent, or that his explanation for the accident is consistent only with an
absence of negligence. (2) since the emergency in this case could have been
controlled by a reasonable competent driver there was no reasonable
explanation as to why the accident occurred and the defendant was
therefore liable in negligent in negligence under the doctrine of res ipsa
loquitur.

Contributory Negligence
Of all the defences available to a defendant in an action for negligence,
contributory negligence deserves special mention. Contributory negligence
means any act or conduct of the party injured which may have contributed
to the injuries he received.
Previously, where the plaintiff partly contributed to his injury in addition to
the defendant act, the plaintiff thereby lost his right of action and could not
sue the defendant. This common law was changed in England in 1945 by
the Law Reform 9contributory Negligence) Act. In Kenya, it was changed by
the Law Reform Act (cap 26.The present law provides:

“Where any person suffers damages as the result partly of his own fault and
partly of the fault of any other person or persons, a claim in respect of that
damages shall not be defeated by reason of the fault of the person suffering
the damage, but the damages recoverable in respect thereof shall be reduced
to such extent as the court thinks just and equitable having regard t the
claimant’s share in the responsibility for the damage.”

Contributory Negligence of Employees:

The Factories Act (Cap.514) makes provisions relating to the guarding of
dangerous machinery. If a worker is injured because a machine is not
properly guarded, he may sue his employer for breach of statutory duty
and /or negligence. The Act imposes many duties on employers, but the
breach of these duties does not always give a civil remedy. Any omission by
the employer will render him liable to his employees, though he can plead
contributory negligence as defence.

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 Negligent Misstatement:
Previously, the general rule was that a person was liable of negligent acts
but not for negligent misstatements.
In Candler v. Crane, Christmas & Co.(1951),it was held that an account
who negligently prepared certain accounts for a particular transaction was
under no liability in tort in respect of those accounts, even though a
plaintiff in reliance on the accounts invested money in a company and
suffered financial injury as a consequences.

OCCUPIERS’ LIABILITY:
The occupiers’ liability to a person coming to his premises was based at
common law until the Occupiers Liability Act 1957 was passed in England.
In Kenya, the law relating to occupiers’ liability has been contained in “The
Occupier Liability Act (Cap 34) the main provision of this Act are given
below:
1. The visitors are person who have express or implied permission to enter
or use the premises of a person. It means they are lawfully on the
occupiers’ premises.
2. The occupier of premises owes “the common duty of care” to all his
visitors. The common duty of care is also defined as “a duty to take such
care as in all the circumstances of the case is reasonable to see visitor
will be reasonably safe in using the premises for the purpose for which
he is invited or permitted by the occupier to be there”.
3. The duty concerns “dangers due to the state of premises or to things
done or omitted to be done on them e.g. warning about a slippery floor”.
4. The occupier is not liable for the negligence of an independent
contractor, provided he is satisfied that the contractor was competent
and that the work had been properly performed.
5. The common duty of care does not impose on an occupier any obligation
to a visitor who has willingly accepted a risk.
6. The circumstances relating to the duty of care should also consider the
following factors:
(a) An occupier must be prepared for children to be less careful than
adults; and
(b) An occupier may except that a person in the exercise of his calling will
appreciate and guard against any special risks ordinarily incident to it,
so far as the occupier leaves him free to do so.

The occupiers’ Liability Act has clarified the duties of an occupier of

premises towards persons who are lawfully on his premises. The Act does

39
 not effect the position of trespassers. The general rule is that an occupier
of premises owes no active duty to trespassers. A trespasser enters the
property of another person at his own risk.

Defences:
In Occupier Liability, the following defences may be available:-
(i) The visitor was given the warning by the occupier.
(ii) The plaintiff took risk willingly
(iii) The occupier employed a competent independent contractor.

DEFAMATION

Meaning of “Defamation”
The tort of defais constituted by the publication of a false statement, without
justification, which tends to lower the plaintiff’s reputation in the estimation of
right –thinking members of society or to injure him in his office, trade or
profession, or which causes him to be shunned or avoided. No person should
therefore publish a false statement which adversely effects the reputation of
another, if such statement is without justification; or he may do so at the risk
of incurring liability for defamation. Instances of defamation are given in the
cases cited below.

Elements of Defamation:
1. The defendant must have made a false statement. This is important
because no action may be maintained by the plaintiff based on a true
statement.
2. The statement must be defamatory. This means that it must be such that
its effect is to arouse odium, contempt or ridicule from right thinking
members of the society. In other words it must tend to lower the reputation
of the person referred to in the estimation of such members of society.
Thus, where A makes a statement that B has VD or Aids, or that B is a
criminal or a crook, or untrustworthy etc., and right –thinking members of
society react to the statement by shunning or avoiding B, or ridiculing him
etc., clearly such statement is defamatory and A may only escape liability,
if he can successfully rely on one or more of the defences which are
discussed below.

A statement may be defamatory in the natural sense of the language used.

This is so where the statement directly imputes some state (e.g. disease) or
misconduct on the person referred to. A statement may be defamatory
indirectly or in a roundabout way. The defamatory matter is merely alluded to
without any explicit statement .A statement which indirectly refers to a

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 particular matter is called an innuendo and the defamation constituted by it
is defamation by innuendo.

Cassidy v. Daily Mirror Newspaper Ltd. (1929) The defendant published a

statement that the plaintiff’s husband was engaged to some third party. The
plaintiff was at that time solely from the husband .The plaintiff alleged that
the defendants’ statement bore the innuendo that she lived with a man not
her husband in immoral cohabitation. Held: The defendant‘s statement
conveyed to reasonable persons a bad effect on the plaintiff’s moral character,
the innuendo alleged by the plaintiff was therefore established and the
plaintiff was entailed to succeed in her action against the defendants.

3. The defamatory statement must refer to the plaintiff .In addition to the
above elements; the plaintiff must prove that the statement complained of
refers to him. But the plaintiff need not have been specifically named; it is
sufficient if right –hinking members of the society understand the statement
to refer to him. Thus, a plaintiff will have a cause of action where either he
was specifically named or where (for instance) the defamatory statement was
accompanied by a cartoon which may easily relate to the plaintiff.

Once a defamatory statement is understood to refer to the plaintiff, the

defendant will be liable notwithstanding that it was not his intention to
defame the plaintiff and it makes no difference that he did not even know of
the plaintiff’s existence.

Newstead v. London Express Newspapers Ltd.(1940) The defendant

published a statement that one Harold Newstead had been convinced of
bigamy. This was true of a barman in Camberwell by those names but not
true of the plaintiff who also resided in camberwell and shared the same
nmes.Held: The statement was defamatory of the plaintiff and the defendant
was liable.

4. The defamatory statement must be published. A cause of action accrues to

the plaintiff only upon publication of the defamatory statement. Such
publication must be made to a third party. Where the defendant keeps the
statement under lock an okay and no one ever gets to read it, or where he
mutters it to himself, or where he communicates it to the person of whom it is
made and no one else, no defamation is communicated. Thus, if they are only
two persons in a room, A and B and A tells B that B is a common thief or that
he believes B has V.D; B cannot sue him for defamation. Publication to a
single individual is enough to find a cause of action. But communication
between spouses (husband and wives) are absolutely privileged, Thus, if A tell
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 his wife that B is a very dangerous character who ought to be relieved of his
office in the public interest cannot sue A for defamation.

Function of the Law of Defamation

The law of defamation protects a persons’ reputation. Every person has right
to a good name and no one should unduly interfere d with this right. It also
protects a person’s business interest. Therefore a false statement which tends
to injure the plaintiff in his trade, occupation or profession is actionable in
defamation. Finally, the law of defamation plays a role in the maintance of law
and order .This is achieved by giving the plaintiff a remedy (or remedies)
instead of leaving him to take the law into his own hands.

Types of Defamation:
Slander: Defamation a common or non-permanent form, including
defamation by word of month, is known as slander. As already pointed out,
Slander is actionable only upon proof of damage the plaintiff’s action can be
sustained only if he proves that he has suffered some damages as a result of
the defendant’s defamatory statement. In exceptional circumstances a
slanderous statement is actionable without the need of proving damage. These
exceptional circumstances are as follows:
1. Where the statement imputes a criminal offence punished by
imprisonment.
2. Where the statement imputes a contagious disease on the plaintiff.

Lords Bar v. People Newspaper,(1972) After a reporter from the defendant

newspaper had visited the Lords Bar s statement appeared in the paper
alleging that all the ladies in that bar had V.D. (venereal disease) and that the
manager of the bar employed only such ladies. The proprietor of the bar and
one of the bar-maids sued. Held: The plaintiffs were entailed to damages and
there was no need to prove damage.
3. Where the statement imputes unchastely on a woman.
4. Where the statement imputes incompetence on the plaintiff in his trade,
occupation or profession.

(b)Libel:
Libel differs from slander in the following respects. First, it is defamation in a
permanent or non –transient form, including written matter like a letter or an
article, scandalous pictures (particularly where they are accompanied by a
defamatory statement), firm or news tapes etc. Where defamatory matter is
dictated to a secretary and she subsequently transcribes it, the libel. Secondly,
while slander generally requires proof of damage before before it can be made
actionable, libel is actionable ‘perse’ (i.e. without proof of damage).Once a libel
is established, the plaintiff has a cause of action whether or not he has suffered
damage.

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Defamation of a Group (or Class)
Where a defamatory statement is made of a large group or class of person, it is
not actionable. Thus, where a statement is made to the effect that “all lawyers
are liars’’, or “all accountant are thieves” or “ all Nairobi women are loose” no
single lawyers’ accountant or Nairobi women may sue on it in defamation.

Knupffer v. London Express Newspaper (1944)

The defendant newspaper commented adversely on the activities of an
association which had a wide membership in several countries and only 24 in
the U.K. The chairman of the U.K branch complained that this article was an
attack on him personally. Held: The chairman’s action could not be sustained,
because when defamatory words are written or could not be sustained, because
when defamatory words are written or spoken of a class of persons it is not
open for a member of that class to say that words were written or spoken of
him as an individual.

REPETITION
Every repetition of defamatory constitutes a fresh cause of action and anyone
repeat it may be sued. A person who takes part in the distribution of such
defamatory matter, whether by way of sale (in the case of Newspaper) or
otherwise, is equally liable for defamation.

Defamation of Deceased Persons:

Defamation of a deceased person is not a tort the person responsible, may be a
prosecuted criminally if it is intended to hurt the feelings of the deceased’s
family or near relation.

Defamation by Innuendo:

Defences
A number of defences are available to a defendant sued for defamation. The
most obvious ones arise from the elements of the tort. Thus, the defendant may
in appropriate circumstances plead that there was no publication of the matter
complained of, or that the matter is not defamatory, or that it does not refer to
the plaintiff, or (in ordinary cases of slander) that no damage has been
suffered by the plaintiff. In addition the defendant may avail himself at least
one of the general defences e.g. consent of the plaintiff to the publication of the
matter complained of. Besides these, there are certain defences which have
relevance to this tort.
(a)Justification:
Truth, or justification, may be pleaded as a defence where the matter
complained of is true and the defendant can prove that it is true. In case the
defendant fails to establish the truth of the matter, the case against him
becomes more serious and aggravated damages may be awarded against him.
(b)Fair Comment:

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Fair comment on a matter of public interest is another defences available to the
defendant in a defamation suit. There must be facts truly stated, based on
which a comment is made; and the facts must not be mixed up with the
comment in such a way that it is difficult to distinguish the one from the other.
(C) Absolute Privilege:
Certain matters are not actionable at all in defamation, and are said to be
absolutely privileged. They include statements made by judges or magistrates
in the course of judicial proceedings as well as those made by members of
parliament debate, and communication between spouses.
(d)Qualified Privilege:
An accession is privileged, according to Pullman v. Hill Ltd (1891) “when the
person who makes the communication has a moral duty to make it to the
person to whom he does make it, and the person who received it has an
interest in hearing it”. An example is where a Head of Department makes a
report to his superiors about a subordinate official in his Department. He has a
duty to make such communication to his superiors and the Newspapers too
may avail themselves of this defence where the matter in question is of public
interest, such that they have a duty to communicate it to members of the
public and the latter in turn have an interest in receiving a report of the
matter. But the defendant is protected only where he has stated what he
believes to be true about the plaintiff provided that the statement was made
honestly and with a proper motive: Shan v. Consolidated Printers Ltd.
(1971).The defence is not available where the defendant’s statement is proved
to have been actuated by malice.
(d) Apology or Offer of Amends
The defendant is at liberty to offer to make a suitable correction of the
offending statement coupled with an apology and/or notice to persons to
whom the statement has been published that the words are alleged to be
defamatory of the plaintiff. Such offer may, in appropriate
circumstances, be relied upon as defence. But an apology is effective only
where it is genuine, not where it is equivocal.
The Defamation Act (Cap.36) provides that the defendant (a publisher) can
make an offer of amends in the cases when the publication was without malice
it was published innocently. And as soon as the publisher discovered libel, he
offered a suitable apology to the plaintiff.

REMEDIES:
The following remedies are available to the aggrieved party on the publication
of defamatory statements:

(a)Damages
In action of defamation, the plaintiff is entitled to recover damages for injury to
his reputation and also to his feelings; injury to feelings is usually assumed
and the plaintiff should recover damages for mental pain and sufferings and
anxiety arising out of his fear of the consequences of the publication, in

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addition to compensation for the insult suffered and the pain of false
accusation as well as the irritation and annoyance experienced as a result of
the defamation. The extent to which the defamatory matter is circulated is
relevant in determining the quantum of the damages. But the plaintiff must
take steps to mitigate the damage occasioned by the defamatory statement (e.g
by seeking a correction or an apology from the defendant), otherwise and in
particular where no actual damage: has been suffered) he is entitled only to
nominal damages. A failure by the defendant to withdraw or retract the
defamatory statement, or to publish an apology, entitles the plaintiff to
aggravated damages:
(b)Apology:
An apology, particularly where it is not equivocal, is another remedy available
to the plaintiff. This is because it has the effect of correcting the impression
previously made by the offending statement about the plaintiff.
(c) Injunction:
The court may also grant an injunction i.e. to issue the order for restraining
the publication of a libel. But the plaintiff must first prove that the defamatory
statement is untrue and its publication will cause irreparable damage to him.

LIMITATION OF ACTIONS:
The Limitations of Action Act (Cap.22) contains the period limits within the
action in tort can be brought. This Act provides:
(i) An action in tort must be brought within three years of the cause of
action occurring. Where the damage arising from the tort does not
become immediately apparent, the time begins from the date of the
damage accruing.
(ii) Where the plaintiff is under disability (such as infancy or insanity)at
the time when the tort is committed, time does not begin to run until
disability ceases.
(iii) Where the tort consist of a continuing wrong a new cause of action
arises daily from when the tort is committed, and the plaintiff can
recover damages for any damage suffered within the limitation
periods.
(iv) Where the right of action is based on fraud, or the right of action was
concealed by fraud, limitation will run from the date of discovery, or
from the time the plaintiff could have discovered it within reasonable
ordinary diligence.
(v) An action to recover a contribution from a joint tortfeasor under the
Law Reform Act (Cap.26) cannot be after the end of two years from the
date of which that right accrued to the first tortfeasor.
(vi) Where there has been successive conversion of goods, the rights of the
owner to recover his goods cease after the end of three years from the
date of first conversion.

SURVIVAL OF ACTIONS:

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A common law maxim is “action personslis moritur cum persona”. It means a
personal right of action dies with the person.Thus; it was not possible to bring
an action for personal wrongs of a deceased person. This general rule was
abolished by the Law Reform Act (Cap.26) of Kenya. This Act does not apply in
cases of defamation, seduction or to claims for damages on the grounds of
adultery .In all other cases, the Act provides:

(a)Where an action exists against a person at his death, it survives against his
estate, provided that proceeding had been commenced before his death, or that
proceedings are taken out representation.

(b)Where a right of action exists for the benefit of a person, it survives his
death, subject to the limitation periods in the Limitation of Actions Act(Ca[.22)

The Law Reform Act also states that any damages recoverable shall not include
exemplary damages. In the case of a breach of promise to marry, the damages
must be limited to the estate of that person as flows from the breach of promise
to marry. Where the death of that person has been caused by the act or
omission which gives rise to the cause of action, the damages shall be
calculated without reference to any loss or gain to his estate conquequent on
his death, except that a sum in respect of funeral expenses may be included.

The action can be brought by the personal representatives of the deceased.

This action must be brought within three years of his death.

The defendant of a deceased person have a right of action under the fatal
Accidents Act(Cap.32) if the death was caused by a wrongful act, neglect or
default on the part of the defendant so that if the deceased had remained alive
he could have brought an action in tort.
Passing Off:
When a person passes of his goods or business as those of another reputable
business firm, it is known as a tort of passing off. This tort can take the
following forms:
(i) Using the name of a reputable business firm.
(ii) Imitating a trade mark, description, wrapping etc.
This tort results in damaging the business interests of a firm. In these cases,
the plaintiff may sue not only for damages, but may ask for an injunction also.
Malicious Falsehood:
This tort is committed when a person makes a false and malicious statements
and such statement cause a financial loss to another person. These statements
may relate to the proprietary interests of another person. For example, ‘X’
alleges that ‘Y’ is offering certain goods for sale, in infringement of a patent
right owned by ‘Z’ this statement is not true.
The essentials of malicious falsehood are

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(a)The statement is false.
(b)There is a malice (i.e. ill-motive).
(C) It tends to make others acts based on this statement.

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