AREA OF LAW PRINCIPLE/AUTHORITY

TRESSPASS TO THE BATTERY

PERSON Defined as an act by the defendant that directly and
intentionally causes some physical contact with the claimant
without the claimant’s consent

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

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

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

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

ASSAULT
Any act of the defendant that directly and intentionally causes
the claimant reasonably to apprehend the imminent infliction
of a battery

Elements of assault
a. Direct act
b. Intentional act

c. Reasonable apprehension of an imminent attack or

infliction of a battery
There must be the fear of actual physical contact
1. Stephens v Myers
 2. Mortin v Shoppee
The defendant must have the means of carrying out the
battery into effect.
3. Thomas v NUM
4. Read v Coker
5. Mortin v Shoppee

Words & Assault

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

NB: In Assault and Battery, the quantum of damages

recoverable depends on proof of actual loss
1. Nsiah v Ampratwum

DEFENCES AGAINST ASSAULT and

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

b. Self defence/ Defence of another person

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

c. Necessity
d. Lawful authority

FALSE IMPRISONMENT
An act of the defendant which directly and intentionally
causes the unlawful confinement of the claimant within an
area delimited by the defendant

Elements of False Imprisonment

a. Direct act
Must be a positive act that flows from defendant such that an
omission to act not hold
1. Appiah v Mensah
2. Asante v The Republic
3. Heard v Weardale Steel co
4. Wright v Wilson

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

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

Place and Area of confinement

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

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

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

An unlawful arrest constitutes false imprisonment.

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

MALICIOUS PROSECUTION
The tort of malicious prosecution occurs where the defendant
maliciously and without reasonable and probable cause
initiates judicial proceeding against the claimant which
terminates in favor of the claimant and which results in
damage to his reputation, person, or property

ELEMENTS OF MALICIOUS PROSECUTION

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

b. The prosecution terminated in claimants favour

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

c. The prosecution was undertaken without reasonable

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

d. The defendant was led by malice

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

e. As the result of the prosecution, the plaintiff has

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

DEFENCES TO MALICIOUS PROSECUTION

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

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

b. Physical Interference
The defendant must have physically interfered with the
claimants land
1. Perera v Vandiyar.
Physical interference does not necessarily mean the
defendant must be physically present on the land. Where the
defendant forces objects of any kind to come into contact
with the land of the claimant, the defendant may be liable for
trespass
2. Pickering v Rudd
 c. Intentional Act/ State of mind
The defendant must have intended to enter land, but need
not have intended to trespass. The act must be a voluntary
act.
1. Conway v George Wimpey & co
Therefore, it is no defence to show that the defendant was
unaware that the land on to which he had entered was land
that belonged to someone else or that the defendant made an
honest mistake of entering the land of the claimant
2. Conway v George Wimpey & co
3. Basely v Clarkson
However, it is a defence to show that he had no intention of
entering the land or that his action was purely involuntary
4. Smith v Stone

Negligent Trespass to the Land

trespass to land can be committed negligently
1. League Against cruel sports ltd v Scott
2. River Wear Commissioners v Adamson

SUBJECT MATTER OF TRESPASS

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

b. Trespass to the sub-soil

Trespass can also be committed against the subsoil
1. Cox v Mousley.
Entry below the surface at any depth constitutes trespass
2. Bulli Coal Mining v Osborne.

c. Trespass to the air space

An invasion of air space above may be trespass
1. Corbett v Hill
2. Kelson v Imperial tobacco co
NB; it is not every intrusion into the claimant’s air space that
will give rise to an action in trespass. It must be shown that
the intrusion was at such a height that it interfered with the
ordinary use and enjoyment of the property and structures
erected on the property
3. Lord Bernstein of Leigh v Skyviews and General Ltd

Types of Trespass
a. Wrongful Entry
The slightest crossing of the boundary may constitute
trespass, eg. Putting a hand through a window
1. Entick v Carrington
It may also take the form of abuse of entry
2. Hickman v Maisey

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

c. Placing objects on the Land/ Continuing trespass

It is a trespass to place any chattel on the claimant’s land. This
form of trespass is called continuing trespass. This is because
the trespass continues as long as the object remains on the
land
1. Westripp v Baldock
2. Arthur v Anker
3. Konskier v Goodman

d. Trespass ab initio
Where the defendant enters upon land with the authority of
the law and later abuses that right he becomes a trespasser
ab initio, that is, from the moment he enters on the claimant’s
land
1. Chic fashions ltd v Jones
2. Cinnamond v British Airport Authority

e. Trespass to the Subsoil

Trespass can also be committed against the subsoil
1. Cox v Mousley
Entry below the surface at any depth constitutes trespass
2. Bulli Coal Mining v Osborne
 f. Trespass above and beneath
Whoever owns or possesses the surface of land also owns or
possesses everything above it to the heavens and everything
below it to the center
1. Corbett v Hill
2. Kelson v Imperial tobacco co.

g. Trespass to airspace
An invasion of air space above may be trespass
1. Corbett v Hill
2. Kelson v Imperial tobacco co
NB; it is not every intrusion into the claimant’s air space that
will give rise to an action in trespass. It must be shown that
the intrusion was at such a height that it interfered with the
ordinary use and enjoyment of the property and structures
erected on the property.
3. Lord Bernstein of Leigh v Skyviews and General Ltd

WHO CAN SUE IN TRESPASS TO LAND

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

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

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

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

b. Justification by law
First, the police have powers to enter premises and search.
Secondly, there is a right to enter upon the claimant’s land in
pursuance of a public right of way eg footpath. Thirdly, there
is a right at common law to enter the claimant’s land, for
example, to abate a nuisance or the power of a landlord to
enter premises to disdain for rent

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

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

b. Injunction
This is a discretionary remedy; the court may award damages
in lieu of injunction. An injunction is particularly useful where
the trespass is continuing or threatened
 c. Re-Entry
A person entitled to possession may re-enter and use
reasonable force to eject a trespasser
1. Hemmings v Stoke Poges Golf Club

WRONGFUL INTERFERENCE TRESPASS TO GOODS/ CHATTEL

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

Acts of Trespass
Trespass to goods can be committed in various forms such as;
a. Taking goods out of the possession of another
1. Brewer v Dew
2. Heyden v Smith
3. Forson v Koens

b. destroying or damaging
1. Marriage of Michaels

c. merely using goods

1. Penfolds Wines Pty Ltd. v Elliott

d. Wrongfully moving goods from one place to another

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

Proof of Damage
trespass to goods is also actionable per se thus the mere
wrongful moving or touching of a chattel without any harm
being caused is actionable
1. Kirk v Gregory
Asportation is not necessarily dispossession
2. Kirk v Gregory
3. Burroughes v Bayne
 State of mind of the defendant
Originally, trespass to chattels was regarded as a strict liability
offence and the defendant was responsible for all the direct
consequences of his act, whether he was negligent or not.
However, the current position of the law is that the act must
be either intentional or negligent
1. Fowler v Lanning
2. Schemmell v Pomeroy.
NB: there is no liability for an interference with goods that is
merely accidental or involuntary
3. National Coal Board v Evans and Co (Cardiff)
4. Halaby v. Halaby and Others
5. Beals v Hayward

Nature of the Interference

The interference must be direct therefore there can be no
trespass if the interference is indirect or consequential
1. Hutchings v Maughan

The claimant’s Possession

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

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

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

State of mind of the defendant

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

Subject matter of conversion

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

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

matter of an action in conversion; however, money capable of
being identified may be converted such as
Bank notes
8. Burn v Morris
Coins
9. Orton v Butler
Bag of money
10. Taylor v Plumer.
 Acts of conversion
The following types of acts will amount to conversion
 Taking goods or dispossession
To take goods out of possession of another, without lawful
justification, may be to convert them
1. Fouldes v Willoughby
2. Kabbara Brothers Transport v Anin and Others.
It is conversion to seize goods under legal process without
justification
3. Cuff v Broadlands Finance Ltd
Also, forcing someone to hand over goods under duress is
conversion by taking
4. Grainger v Hill.

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

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

Destroying or altering
To destroy goods is to convert them, if done intentionally But
if done negligently give rise to liability in negligence and not
conversion
1. Richardson v Atkinson
It is also conversion to alter the identity of a chattel
2. Hollins v Fowler

 Goods lost or destroyed

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

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

2. Hollings v Fowler
3. Sheridan v New Quay Co.

Exceptions
There are exceptions to the principle that receiving is
conversion. They include the following;
a. Where the goods are sold in market overt (open
market) according to the customs of the market, the
buyer will obtain a good title to the goods if the seller
did not have a good title provided he acted in good
faith and did not have notice of any defect in the
seller‘s title
1. Section 22 of the sale of goods Act

b. Where an agent, having authority in the ordinary

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

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

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

NB: In order to maintain an action the claimant must have

possession or the right to immediate possession of the goods
at the time of the conversion
1. Gordon v Harper
2. Farrant v Thompson
3. Penfolds Wines Pty Ltd v Elliot

Possession or right to possession may be also acquired as

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

b. Lien and Pledge

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

A pledge unlike the lien confers a further power to sell the

good should the owner default in his payment of the debt .

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

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

e. Finder
The finder of a good has the right of a finder of a chattel
against later possessors unsupported by an earlier title.
Though neither parties are the true owner of the chattel, a
finder would have a stronger possessory title, which he could
protect by the action in trover
1. Amory v Delamirie
An occupier of premises has rights superior to those of the
finder over goods upon or in, but attached to, the premises
only if, before finding, the occupier has manifested an
intention to exercise control over the building and the things
that may be upon it or in it.
2. Parker v British Airways Board

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

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

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

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

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

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

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

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

Refusal to surrender on demand is the essence of detinue and

judgment may be made by the court for;
a. the value of the goods as assessed and damages for
their return
b. the return of the goods and damages for their return

The value of the goods is assessed as at the date of the trial

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

Negligence can be defined in 2 ways;

NEGLIGENCE
(NEGLIGENT INVASIONS OF
INTERESTS IN THE PERSON,
PROPERTY INTERESTS AND
ECONOMIC INTERESTS)
a. It may signify the attitude of mind of a party
committing a tort, that is, mental inadvertence or
carelessness.
1. Letang v Cooper
2. Fowler v Lanning

b. Negligence may be an independent tort consisting of

the breach of a specific duty, recognized by law and
owed to the claimant which is our focus of discussion
here.
The definition of Negligence was formulated in Blyth v
Birmingham Waterworks Co where the notion of the
reasonable man first appears; “Negligence is the omission to
do something which a reasonable man upon those
considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and
reasonable man‘ would not do”.

The tort of Negligence means more than heedless or careless

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

NB: Negligence is Not actionable per se and thus the need to

prove actual damage for the tort to be actionable. It also lies
for consequential and indirect injuries.

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

DUTY OF CARE
In the great case of Donoghue v Stevenson where Lord Atkin
in dictum espoused certain principles in law as relating to a
duty of care owed to the claimant.

 The narrow Principle- under Manufacturer’s or

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

 Neighbour Principle
Lord Atkin again in Donoghue v Stevenson explained “…You
must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your
neighbour. Who then in law is my neighbour? The answer
seems to be persons who are so closely and directly affected
by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my
mind to the acts or omissions which are called in question…”
1. Home Office v Dorset Yacht Co per Lord Reid

 Are the categories of Duty of Care closed?

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

The Scope of Duty

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

b. Caparo test (Added foreseeability)

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

The claimant must be foreseeable

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

b. Injury that occurred must be foreseeable

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

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

Fair, just and equitable

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

BREACH OF DUTY
The question here is whether the defendant has measured up
to the standard expected of him or her in the circumstances.
The court does this by asking the following questions
 Whether risk of harm to the claimant was reasonably
foreseeable by the hypothetical person in the position
of the defendant
1. The Wagon Mound (no. 2)

 What is the appropriate standard of conduct that was

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

 Whether the defendant fell below the standard of

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

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

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

FACTORS RELEVANT TO ESTABLISHING THE REQUIRED

STANDARD
FACTORS EXTRANEOUS TO THE DEFENDANT

a. The likelihood of harm

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

b. The potential magnitude/seriousness of harm

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

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

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

d. Relative Cost of avoiding the harm

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

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

f. Hurley burley of life situations

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

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

The test of professional negligence

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

To determine the standard demanded in a particular job, the

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

NB: In situations where the defendant holds himself as

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

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

BREACH OF DUTY IN RES IPSA LOQUITUR SCENARIOS

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

Elements of Res ipsa loquitar

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

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

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

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

c. The instrumentality causing the accident must be

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

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

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

Effects of res ipsa loquitar

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

DAMAGE
Let us remind ourselves that negligence is an action on the
case tort and thus not actionable per se. For an action in
negligence to hold, the claimant needs to prove some damage
suffered. The damage suffered must have ensued as a result
of a breach of a duty of care owed to the claimant by the
defendant.
General guidelines on whether the damage was attributable
to the defendant
a. Foreseeable
The damage or injury should be foreseeable at the time of the
defendants conduct. This does not apply only to the kind of
injury but also to the extent of the injury.

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

kinds of injury
 Physical Injury or damage
Find out. Well according to her slides, this type of damage is
straight forward and easily proved

 Psychiatric Harm or Nervous shock

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

a. an incident that threatened his own safety

The claimant is referred to as the primary victim of the
defendant’s negligence. The claimant involved in an accident
through the defendants negligence may suffer severe physical
injury and may as well succumb to mental illness triggered by
the terror of the accident and his consequent pain and
suffering, or an accident may occur in which the claimant is
involved but in which he suffers no bodily injury, only shock
and fear that cause psychiatric illness
1. Page v. Smith
2. Dulieu v. White
 b. witnessing exceptional distressing injuries caused to
others.
The claimant is a secondary victim of the defendant’s
negligence. the claimant may not be directly involved in the
original accident, and be at no personal risk of physical injury,
but nonetheless witness injury to others and suffer psychiatric
harm in consequence. A good example would be a mother
who witnesses a horrific injury to her children
1. Hambrook v. Stokes Bros
A series of decisions have set limits, often referred to as
control mechanisms, on who may claim as a secondary victim
of psychiatric harm which are primarily intended to keep
litigation in this area within manageable limits. To recover
damages, a secondary victim must generally prove either that;
 a close tie of love or affection with the primary victim
(such a tie being presumed to exist between certain
persons such as spouses, or parents and their
children)
2. McLoughlin v. O’Brien

 proximity in time and place to the accident. He was

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

 The relevant psychiatric illness must be shown to

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

Where professional involvement purportedly leads to

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

Other examples of Secondary victims

 Bystanders
As a bystander only, it should be foreseeable that he would
suffer such shock. Practical and policy reasons, militated
against such liability
2. McFarlane v. E. E. Caledonia Ltd
  rescuer or participant claiming for nervous shock
The law renders no applause for the good Samaritan. For a
rescuer to successfully claim, he the psychiatric harm should
be foreseeable, and during the rescue or participation
reasonably believed himself to be at risk
3. White v Chief Constable of South Yorkshire Police
For a rescuer to claim, the rescue should have been necessary
and the rescuer should have acted reasonably
4. Chadwick v British Transport Corporation

 Pure Economic Loss

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

A special/personal relationship between claimant and the

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

 where the defendant has undertaken to perform

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

 The defendant must be fully aware of the nature of

the transaction that the claimant was involved or
interested in for which he needed the information

 The defendant must either have communicated the

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

 The defendant must specifically anticipate that the

claimant would properly and reasonably rely on the
information when deciding whether or not to engage
in the transaction in question
9. James McNaughton Paper Group v Hicks Anderson
  The transaction for which the information is needed
must be connected with interests that it is reasonable
to require the defendant to protect

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

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

 Injury/Damage to Property
A claimant may claim for damage to his property or chattel.
Here there are two questions asked;
a. that the subject matter of the claim is property
damage
b. that the claimant is the right person to sue.

Property damage involves some deleterious change in the

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

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

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

CAUSATION AND REMOTENESS OF

DAMAGE
Despite the defendant owing a duty of care and being in
breach of that duty, the defendant will not be liable unless his
conduct has caused the claimant‘s damage and that damage is
not too remote in law. The claimant must usually show
causation which is a “chain” linking defendant’s conduct to
the injury endured by the claimant. If there is a break in the
chain then, the defendant could escape liability. (There is
some amount of negligence but because of public policy
considerations, the defendant’s liability is restricted or
sometimes negated)
• Causation in fact
The claimant has to prove on the balance of probabilities that
the defendant‘s breach of duty caused the damage. The task
of the claimant is to establish a prima facie case that, on the
balance of probabilities, the fault of the defendant caused or
materially contributed to the injury.
Where the claimant has proved a breach of duty by the
defendant and can establish that the breach increased the risk
of the injury to which the claimant succumbed, and there is no
proof of any alternative cause, the defendant will be liable
1. Bonnington Castings Ltd v Wardlaw

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

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

c. more likely than not

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

It may be an intervening act of the claimant himself

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

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

REMOTENESS OF DAMAGE
Generally, a claimant may not be granted any remedy for
negligence if the damage suffered is too remote a
consequence of the defendant’s breach. Usually influenced by
public policy considerations. Public policy determines that it is
not fair to allow the claimant to claim for every trivial loss due
to the defendants conduct
1. the Wagon Mound No. 1
The test of remoteness
Two schools of thought is dealing with the remoteness of
damage.
a. The direct consequences test
The first school, extends liability to all physiological
consequences whether foreseeable or not. Usually works in
personal injury case-restrictive. According to this test, once
the defendant is proved to have been in breach of the of care,
he is liable for all the direct consequences of that breach.
Directness here includes all consequences flowing in an
uninterrupted sequence, this is without the intervention of
new forces, human or natural. Therefore, according to this
school, the fact that the defendant could not foresee a
particular consequence of his act is immaterial, if it was a
direct consequence. The rule called the Polemis Rule
1. Re Polemis

The egg-shell skull principle

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

1. Dulieu v White
2. Smith v Leech Brain

b. The reasonable foreseeability test

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

An occupier is anyone who in occupation or control of the

OCCUPIER’S LIABILITY premise at a given time
1. Wheat v E. Lacon & co ltd
He has a right to the possession of the premises occupied with
a power to exclude therefrom all other persons.
The injury or loss suffered by those who come into the
premises is the thus the occupier’s liability.
Premises is very diverse. It could be fixed or a movable
structure as it includes buildings, vehicles, race-stands, railway
carriages etc.
Once the occupier is in control and has the right to exclude
others from entry therein. The obligations of the occupier for
damage which occurs on his premises depend on the
character of the entrant. In this respect, the law draws a
distinction between lawful and unlawful visitors. An unlawful
entrant is termed a trespasser. Generally, the liability is to all
lawful visitors
Categories of Persons
 Lawful entrants
a. Contractual visitor
The occupier owes a duty to contractual visitors that the
premises are safe.
The contractual visitor is anyone who comes to the premises
in pursuance of a contract which is often beneficial to the
occupier and the visitor.
Where there exists a contract between the parties, the nature
and extent of the occupier's obligations in relation to the
safety of the premises will be a matter of construction from
the contract. Where the contract is silent, there would be an
implied warranty that the premises are safe for the purposes
contemplated by the parties.
1. Frances v Cockrell
2. Maclenan v Segar
The occupier, however is not responsible for defects which
could not reasonably be discovered by inspection as far as the
construction, alteration, repair or maintenance of the
premises are concerned.
The duty owed then is that an occupier warrants that his
premises are as safe, for the purposes of the contract, as
reasonable care and skill on the part of anyone can make
them.
It matters not if what caused the event through negligence
was caused by servants or workers or independent
contractors of the occupier
 3. Woodward v Mayor of Hastings
The occupier would still be liable unless the occupier can
prove;
a. that the defect is one which he could not have noticed
reasonably
4. Gillmore v L.C.C. and

b. that he took reasonable steps to employ a competent

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

b. Invitees
These are on the premises at the invitation of the occupier. An
example is a customer in a shop. There is also a mutual
benefit shared by the occupier and the invitee. The duty, then,
is that an occupier must take reasonable care to prevent
injury to the invitee from unusual danger of which he knows
or ought to know of.
1. Indemaur v Dames
2. Griffiths v Smith
The law is that, to discharge the duty, the occupier must warn
the invitees through notice or lighting, guarding or otherwise,
to prevent injury to them. Danger perhaps ceases to be a
danger when warning is given or when it is obvious enough or
ought to have known by a reasonable person.
However, the invitee must keep within the bounds of his
invitation. The law protects an invitee so long as he keeps
within the limits of his invitation. If he exceeds his invitation,
he may become a trespasser
3. Walker v Midland Railway co
4. Mersey Docks & Harbor Board v Proctor
It is clear also therefore that an invitation may be limited as to
place and as to time. So that customers may not be
considered as invited after the shutters have been let down.
NB: We can also look at Pearson v Coleman bros but here let
me state that, it was because the claimant was a child, that
was why the court explained that since she wasn’t moving
around out of curiosity but looking for a spot to ease herself
and was mauled by the lion, the defendants were liable.

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

 Unlawful Entrants
A trespasser is one who enters a premises where he neither
has right or permission to enter. His presence on the premises
is unknown to the occupier and even if known, is practically
objected to by the occupier
1. Addie v Dumbreck
Generally, an occupier, owes no liability for injury to unlawful
visitors however, the occupier must not deliberately inflict
injury or harm on trespassers
2. Bird v Holdbrook
However, when the presence of the trespasser is known, the
occupier must refrain from doing anything with reckless
disregard of his presence
3. Excelsior Wire Rope co v Callan
The occupier must also not create new dangers without giving
warnings.
The initial rule concerning trespassers was that a trespasser
enters the land of another at his own risk and is owed no duty
other than that of not inflicting damage intentionally or
recklessly if the trespasser is known to be present
1. Addie v Dumbreck
With the exception given that that the duty of an occupier to
a trespasser was the duty to take care not to injure
trespassers whose presence was foreseeable or reasonably to
anticipated, having regard to all the circumstances, including
the gravity and likelihood probable injury, the character of the
intrusion, the nature of the place where the trespass occurred
and the state of the occupier's knowledge.
2. Videan v British Transport Corporation (BTC),

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

Railway where the court found for the trespasser under the
doctrine of Common humanity; the duty of common
humanity is employed where the occupier becomes aware of
the presence of the trespasser or the likelihood of his
presence.
1. Herrington v British Railway
The doctrine is used especially in cases involving children
2. Pannett v McGuiness
Thus, the more serious the danger, the more obligation on the
occupier the more obligation of the occupier to avoid it by
giving warning especially if it has to do with children.

NB: One important point to keep in mind is that the rule in

Addie has not been jettisoned by these more recent and less
harsh rules. It is still the law that an occupier does not
normally owe a trespasser a duty of care. The recent
developments have merely modified the Addie rule to
accommodate or take account of situations where the
occupier becomes aware of the presence of the Trespasser or
the real likelihood of that presence. The duty of common
humanity strictly therefore is not entry related but arises from
knowledge of the presence or is presence-related. This is
unlike the duty to lawful visitors which is entry related.

Put together by;

BONNEY GODSON