LAW OF TORTS (UNIT 8-16): BY K. MULIFE

UNIT 8: NUISANCE

What is a nuisance?

A nuisance may be described as “unlawful interference with a person’s use of or enjoyment of

land, or of some right over or in connection with it unimpaired by noxious odors, noise, fumes,

smoke, steam and other interferences. Other examples of nuisances are roots of trees that

encroach on the plaintiff’s land and keeping a brothel in a residential area. Thus, nuisance can

be the following experiences:

1. Annoyance’

2. Irritation;

3. Pain;

4. Trouble, etc.

Nuisance is commonly a continuing wrong – that is to say, it consists in the establishment or

maintenance of some state of affairs which continuously or repeatedly causes the escape of

noxious things onto the plaintiff’s land. An escape of something on a single occasion would not

ordinarily be termed a nuisance.

Factors to Consider when Determining Whether or not the Tort of Nuisance has been

Committed

1. Incidence of the nuisance. The occurrence of the incidence must be frequent;

2. The duration of the incidence must be long or often and not a one-off incident;

3. The gravity of the wrongful act must be serious;

The locality of the nuisance will determine whether or not the act complained of is a nuisance

since what can be a nuisance in one locality may not be a nuisance in the other locality: e.g. in a

1

low residential area, holding kitchen parties may be frequently would amount to a nuisance as

opposed to high residential area because of the noise associated with kitchen parties.

What is Statutory Nuisance?

Statutory nuisance arises from legislative provisions that state the instances of a nuisance. In

short, the law indicates what’s a nuisance and when actionable. Every statutory nuisance is a

criminal offence created by statute.

Governments in most jurisdictions realize that legislation is vital to address public health

concerns and the environment in particular nuisances arising from factories, run down premises,

noise from bars, air etc.

The enforcement of the said legislation is largely effected by local authorities or statutory bodies

e.g. the Environmental Council of Zambia. Here, it is worthy to note that individual rights are

subordinated to community rights. For instance, in an industrial area, an individual property

owner (house owner) cannot bring all industries to a grinding halt for the sake of ensuring that he

enjoys his rights. The balance between individual and common rights is represented by the

phrase ‘give and take’. Thus a nuisance which is for the common good of a community is not

actionable. Examples would include the buzzing noise of a power station, the fumes, noise or

smoke from an oil or copper extraction plant. This type of common good is called ‘utility of the

defendant’s conduct.’

The tort of nuisance requires that the injured individual must tolerate certain occasional wrongful

acts by his neighbours as a price to obtaining the same indulgence from them. Fancifulness and

fastidiousness are discouraged. The Latin maxim for this principle is ‘de minimis non curat lex’

meaning ‘the law does not concern itself with triffles’. This maxim is related to another maxim

which says that ‘sic utere tuo ut alienum non laedas’ which means that ‘use your property as not

to injure your neighbours’.

Public Nuisance

2

Public Nuisance is one which materially affects the reasonable comfort and convenience of a

certain class of society this type of nuisance is usually a criminal offence but an individual who

suffers special damage i.e. damage beyond that suffered by other members of the public may

bring a civil action.

In ATTORNEY-GENERAL v. P.Y.A. QUARRIES (1957) 2QB. 169, quarry operations were

conducted in such a way that local residents were affected by dust and vibrations from

explosions. The court defined public nuisance as: “one which materially affects the reasonable

comfort and convenience of life of a class of her majesty’s subjects. The Defendant’s activities

were held to amount to a public nuisance.

In the case of CAMPBELL v. PADDINGTON CORPORATION (1911) 1. K.B. 869, the

Defendant’s wrongfully erected a stand in the highway which prevented the Plaintiff from letting

her premises for the purpose of viewing King Edward VII’s funeral procession. She was

successful in recovering damages

Examples of Public Nuisance include

1. Obstructing the highway or making it dangerous for traffic;

2. Carrying on offensive trade;

3. Keeping a disorderly house or brothel in a residential area;

4. Polluting a stream or air;

5. Organizing a festive of pop music which generates large-scale noise, traffic, and

apprehension.

Highways

Nuisance to the highway may be caused by-

Obstruction caused by scaffolding, repairs and parking of a motor vehicle for

unreasonably long period of time. Reasonable uses are lawful unless lasting for an

excessive time. Thus in the case of TREVETT V. LEE (1955) 1 W.L.R. 113 CA, half-

3

inch hosepipe laid across a road in daylight to bring water to the Defendants’ premises,

was held to be a reasonable use and therefore not a nuisance. So too, in the case of

DWYER V. MANSFIELD (1946) K.B. 437, where queues formed outside a shop,

obstructing neighboring premises, it was held that provided the shopkeeper carries on

business in a normal way and the queues are due to shortages, he would not be liable

even if a nuisance to neighbors were proved.

The aspect of dangerous activities amounting to a public nuisance can well be explained by an

example and case law: In the case of CASTLE V. ST. AUGUSTINE’S LINKS (1922) 38 T.L.R

615, a taxicab driver who lost an eye from a sliced golf ball recovered damages from the golf

club; the proximity of the hole to the road was a public nuisance.

Projections. There is no liability for things naturally on land, e.g. trees unless their

dangerous condition was known or ought to have been known but there is probably strict

liability in respect of artificial projections. In QUINN V. SCOTT [1965] 1 W.L.R. 1004,

a diseased tree fell and caused an accident. The National Trust was held liable as it had

means of knowing that it was diseased. In the case of BRITISH ROAD SERVICES V.

SLATER [1964] 1. W.L.R498, an overhanging branch caused goods on a lorry to fall off,

and an accident ensued. The Land owner was held not liable, as he neither created the

nuisance nor could he have been presumed to know about it.

About aspects of strict liability, the case of TARRY V. ASHTON [1876] 1 Q.B.D. 314,

provides guidance. In the case, the Plaintiff was injured by the fall of a lamp projecting from

the Defendant’s premises over the highway. The Defendant was held liable for the

negligence of an independent contractor whom he had employed to repair it.

Private Nuisance

A private nuisance is the imposition of liability as the result of an act or omission whereby a

person is annoyed, prejudiced or disturbed in the enjoyment of land. The disturbance may take

the form of physical damage to land or, more usually, of the imposition of discomfort upon the

occupier. Typical situations which may give rise to liability involve incursions by water, smoke,

smell, fumes, gas, noise, heat, vibrations, electricity, animals and vegetation. Wrongful

4

interference with the exercise of an easement, profit, or other similar right affecting the use or

enjoyment of land also come within the rubric of private nuisance.

The judicial definition of a private nuisance is the “interference for a substantial length of time

by owners or occupiers of property with the use or enjoyment of neighboring property.

Examples of private nuisance:

a) Obstruction of rights of way;

b) Interference with water supply;

c) Interference with access of air through a defined channel;

d) Interruption of light; and

e) Interference with support to land

f) Interference with the enjoyment of land generally

The occupier of property is entitled to a certain measure of freedom from damage to his property

or interference with his health, comfort and convenient enjoyment of his property by the entry

upon or proximity to that property of noxious things such as smoke, smells, noise, vibration and

damp.

In the case of THOMPSON-SCHWAB V. COSTAKI (1956)] 1 W.L.R. 335 C.A A householder

in a good residential street complained that two women were in the habit of picking up men in

neighboring streets and bringing them to the house next door to his for purposes of prostitution.

It was held that such activities could constitute an actionable nuisance.

Nature of the Tort

He who causes a nuisance cannot avail himself of the defence that he is merely making a

reasonable use of his own property. No use of property is reasonable which causes substantial

discomfort to other persons or is a source of discomfort to other persons or is a source of damage

to their property. The wrong character of the defendant’s act is not to be tested as it is

negligence, by asking whether he could have foreseen the damage. The proper angle of approach 5

is rather from the stand point of the victim of the loss or inconvenience than from the stand point

of the alleged offender. Thus in the case of CHRISTIE V. DAVEY (1893) 1 CH. 316, an

injunction was granted to restrain the Defendant from maliciously making a hullabaloo whenever

the Plaintiff played the piano.

In the case of personal discomfort the test is: has the Plaintiff suffered material discomfort

according to plain and sober and simple notions, taking into account the locality?

Though, usually, to some extent ‘continuing’ the act complained of may be temporary or even

instantaneous, duration is relevant, first, in deciding whether the complainant is too trivial to be

actionable, and, secondly, in deciding the appropriate remedy. The granting of an injunction to

restrain a temporary nuisance is rare, since damages are usually adequate.

Malice will not convert a lawful act into an unlawful act. Remember the case of BRADFORD

CORPORATION V. PICKLES. But the purpose or motive is taken into account in deciding

whether or not a person is justified in injuring or disturbing his neighbour with noxious things.

Sinking a shaft is lawful; making noise is lawful only within bounds.

In the case of HOLLYWOOD SILVER FOX FARM LTD V. EMMETT [1936] 2 K.B. 468- the

Defendant, acting maliciously, fired guns close to the Plaintiff’s fox farm during the breeding

time, thereby causing considerable loss. He was held liable.

If damage was only suffered because either the Plaintiff or his property was abnormally

sensitive, the Defendant will not be liable.

Who can Sue?

Nuisance is an infringement of rights of enjoyment of property, i.e. an injury to the person in

actual occupation, and so, as a rule, he alone can sue.

Persons Liable

Generally, the occupier of premises is liable for all nuisances which exist upon them

during the period of his occupancy. His duty is not merely to refrain from positive acts of

6

misfeasance which cause harm to his neighbours, but also to take care that such harm is

not caused by his omission or by third parties or by nature, and to abate it if it does.

The occupier is liable even for nuisance created by his independent contractor if he

engaged in work which there is a special danger of causing a nuisance, e.g. extensive

building operations. In the case of BOWER V. PEARE [1876] 1 Q.B.D.321- the

Defendant employed a builder to pull down his house. The builder undertook to support

the Plaintiff’s house which adjoined it, but it was nevertheless damaged. It was held that

the Defendant was liable for infringement of the Plaintiff’s right of support.

The person who caused the nuisance is the person primarily liable. In the case of

THOMPSON V. GIBSON (1841) 7 M& W. 456. The builder of premises which

obstructed the public’s access to the Plaintiff’s market was liable though not in

occupation and thus powerless to abate the nuisance.

Defences

1. Consent ;

2. Prescriptive right- this arises after twenty years, but time only begins to run when the act

in fact becomes a nuisance. Public nuisance cannot be justified by prescriptive right. In

the case of STURGES V. BRIDGMAN (1879) 11 CH.D 852, the Defendant had used his

machinery for 20 years, but the vibrations caused by it only became a nuisance when the

Plaintiff put up a consulting room at the end of the garden near the noise. The Defendant

had no prescriptive right.

3. Statutory authority;

4. Contributory negligence

Remedies for Nuisance Action for Damages;

Injunction; and

Abatement –An occupier may without notice remove things which have escaped onto his

own land (e.g. branches). In an emergence, e.g. fire likely to spread – he may enter 7

another’s land to abate it: otherwise he should first give notice and a reasonable time to

permit the other occupier to abate it himself. Exercise of the right of abatement destroys

any right of action in respect of the nuisance,

Note: the tort of nuisance and that of trespass are closely related. The only distinction between

the two is that trespass to land is actionable per se where as nuisance requires proof of damage.

UNIT 9: STRICT LIABILITY: RULE IN RYLANDS v. FLETCHER

STRICT LIABILITY

In the law of torts, strict liability means tortuous liability which is set upon the defendant without

need to prove intent, negligence or fault on their part. Liability is established provided that the

plaintiff proves that it was the defendant's object (thing) that caused him the damage.

DEFINITION OF THE RULE IN RYLANDS AND FLETCHER

The may be formulated as follows:

‘ A person who for his own purposes brings on his land and collects and keeps there anything

likely to do mischief if it escapes must keep it in at his peril, and, if he does not do so, is prima

facie answerable for all the damage which is the natural consequence of its escape’

Facts in the case of RYLANDS V. FLETCHER (1868) L.R. 3 H.L. 330, two defendants

constructed a reservoir upon their land, in order to supply water to their mill, and upon the site

chosen for this purpose there was a disused and filled-up shaft of an old coal mine, the passages

of which communicated with the adjoining mine of the plaintiff. Through the negligence of the

contractors or engineers by whom the work was done (and were not the employees of the

defendants) this fact was not discovered, and the danger caused by it was not guarded against.

When the reservoir was filled, the water escaped down the shaft and thence into the plaintiff’s

mine, which it flooded, causing damage.

The defendants (who had not themselves been negligent) were held liable.

8

The basis of liability is the artificial accumulation of things not in or on the land by the ordinary

course of nature. Thus, if rain falls on the defendant’s land, and the resultant water passes off by

natural gravitation on to the plaintiff’s premises, there is no liability under Rylands v. Fletcher.

Who may sue?

The right of action is not limited to the adjoining occupier. If I happen to be on somebody else’s

land at a time when a fire spreads to that land and my motor-car or property is destroyed, I have

just as much right as against the person who improperly allows the fire to escape from his land as

the owner of the land on which I happen to be. In CHARING CROSS ELECTRICITY SUPPLY

CO. V. HYDRAULIC POWER CO. [1914] 3 K.B. 772, a water company had statutory authority

as licensees to place water mains in a highway. Water escaped, damaging the electric cables of

the Plaintiff, who was there by a similar authority. It was held that the former were liable on the

principle of Ryland V. Fletcher.

Who may be Sued?

Primarily liability rests upon occupancy or control of premises, rather than on the fact of the

defendant has failed to control the thing that caused the mischief.

The plaintiff must prove that:

1. The defendant made a non-natural (i.e. extraordinary, exceptional or abnormal) use of his

land. It is a question of fact, subject to a ruling of the judge whether the particular object

can be dangerous or the particular use can be non-natural, and in deciding this question,

all the circumstances of the time and place and practice must be taken into consideration

so that what might be regarded as dangerous or non-natural may vary according to those

circumstances;

2. The defendant brought onto his land something which was likely to do mischief (i.e.

dangerous thing e.g. water, chemicals, fire, electricity, etc) if it escaped;

3. The substance in question escaped; and

4. Damage was caused to the plaintiff's property (or person) as a result of the escape."

9

Points to Consider

1. The duty is strict, the occupier being liable without proof of negligence or other fault;

2. He is liable for the default of the independent contractors;

3. He is not liable unless there is an “escape” of the dangerous/noxious thing. In the case of

READ V. J. LYONS & CO. LIMITED (1947) A.C. 156, the Respondents operated a

weapons factory. The Appellant, who was an inspector, suffered injuries in an explosion

in the shell-filling room. No negligence was shown and her action failed because there

had been no “escape” so Ryland v. Fletcher could not apply;

4. There is no liability for damage caused by the escape of things that are naturally on the land

unless the Defendant actively caused their escape.

5. It is uncertain whether the rule in Rylands v. Fletcher, applies to injuries to the person as well

as to property. English courts seem to favour the conclusion that damages for personal

injuries are not recoverable as was stated obiter in the case of READ v. LYONS cited above.

On the contrary, the High Court in Australia seem to favour the conclusion that damages for

personal injuries and damages for damage done to chattels may be recovered under the rule

in Rylands v. Fletcher by an occupier of premises. See the case of BENNING v. WONG

(1969) 43 A.L.J.R. 467.

Defences or Exceptions to the Rule in Rylands v. Fletcher

1. Consent of the Plaintiff. The rule in Rylands v. Fletcher is not applicable to the escape

of things brought or kept upon his land by the defendant with the consent (express or

implied) of the plaintiff. In such cases the defendant is not liable except for negligence.

This is where the claimant expressly or impliedly consents to the presence of the thing on

the defendant’s property. The Defendant would not be liable if any damage results as a

consequence of the escape.

2. Act of Stranger. This is where the escape was caused by the wrongful act of a third

person over whom the defendant had no control. Thus if a trespasser lights a fire on my

land, I am not liable if it burns my neighbour’s property, unless with knowledge or 10

presumed knowledge of its existence I have failed to extinguish it within a reasonable

time. So in BOX v. JUBB (1879) 4 Ex. D. 76, the defendants were held not responsible

for damage done through an overflow from their reservoir, when that overflow was

caused by an act of a third person who emptied his own reservoir into the stream which

fed that of the that of the defendant. And in RICKARDS V. LOTHIAN (1913) A.C. 263,

the defendant was not held liable for an escape of water to a lower floor of a building was

caused by a third party’s maliciously interference with the lavatory waste pipe.

But it should be noted that an occupier may be liable in negligence for acts of a stranger

even though he escapes liability under the rule in Rylands v. Fletcher. When the

stranger’s acts is of a kind which ought to have been anticipated and guarded against, the

occupier will be held liable for a failure to take reasonable care. Thus is NORTH-

WESTERN UTILITIES V. LONDON GUARANTEE AND ACCIDENT CO. LTD.

(19360] A.C. 108, the appellants, who were carrying gas at high pressure under the

streets of Edmonton, Alberta, were held liable when an hotel insured by the respondents

was destroyed owing to the escape of gas due to a leak caused by the operations of third

persons, since those operations were conspicuous and ought to have been foreseen and

guarded against. But “they left it all to chance”, and were thereby held liable in

negligence.

3. Where the escape was caused by an act of God. This, in a nutshell is where the escape

was caused by natural forces which are beyond human foresight. In NICHOLAS V.

MARSLAND [1875-76] 2 EX.D, the Defendant was in possession of artificial pools

formed by damming a natural stream. The embankments and weirs were well and

carefully constructed and were adequate for all ordinary occasions. A very violent storm

however broke down the embankments, and the rush of water down the stream carried

away certain bridges, in respect of which damage the action was brought. It was held, not

withstanding Rylands v. Fletcher, that the defendant was not liable, inasmuch as the jury

had found that there was no negligence on the part of anyone and that the accident was

due directly to the act of God.

11

4. Default of the Claimant. The rule in Rylands v. Fletcher is not applicable where the

escape was owing to the plaintiff’s default. Again if the plaintiff is a trespasser on the

land, he cannot complain of the things he may find there, nor if he goes out of his way to

encounter danger can he blame the defendant for any harm he may suffer. So also where

the damage would not be have occurred but for some special or non-natural user of the

plaintiff’s property the defendant will not be liable under this rule.

Also note that where the claimant’s default’s amounts to contributory negligence, they

will have their damages reduced in proportion to their responsibility for the damage

suffered.

5. Statutory Authority. That the Defendant had statutory authority to bring the thing on his

land and accumulate it. In GREEN v. CHELSEA WATERWORKS CO (1894) 70 L.T.

547, a main belonging to the defendant company burst, and the water flooded the

plaintiff’s premises. It was held that the company, being authorized by Act of Parliament

to lay the main, and having a statutory duty to maintain a continuous supply of water, and

having been guilty of no negligence, was not liable in damages to the plaintiff.

Remedies

1. Damages; and

2. Injunction

UNIT 10: LIABILITY FOR ANIMALS

COMMON LAW LIABILITY RELATING TO ANIMALS

Introduction

At common law, the responsibility of the owners of animals for damage done by them developed

along two main lines; one a branch of the law of trespass, and the other a branch of the which

imposes upon the owner of a dangerous animal or thing a duty to take measures to prevent it

from doing damage. 12

Strict Liability for Dangerous Animals

Certain animals are in their nature so dangerous to mankind that the keeper of them could not be

heard to say that he did not know of their character. Hence under this branch of the law there are

two classes of animals: (1) animals ferae naturae, e.g. a tiger or a lion, which are obviously of a

dangerous nature, although individual animals may more or less be tamed; (2) animals mansuete

naturae, e.g. a dog, a cow, or a horse, which have in individual cases given indications of the

development of a vicious or dangerous disposition.

Where the animal is ferae naturae, strict liability falls on its keeper to ensure that it does not

cause mischief. He who keeps a dangerous animal keeps it at his peril. The liability is for any

damage caused by the animal of a dangerous species: it is irrelevant that the particular animal is

in fact tame, or was acting out of fright rather than viciously. Thus when damage is done by a

dangerous animal its keeper is liable without proof that the animal had a tendency to do such

damage, or (if the animal had such a tendency) that the defendant knew of it.

Liability for non-dangerous species

When damage is done by an animal of a non-dangerous species, the plaintiff must show that the

animal had certain abnormal characteristics (tendency contrary to the nature of animals of that

class), and that its keeper had knowledge, actual or constructive, of those characteristics. It is not

necessary to prove that the animal has on any previous occasion actually done the kind of harm

complained of; it is enough that it has sufficiently manifested a tendency to do or has done the

particular kind of damage complained of.

STATUTORY LIABILITY

The law has placed an obligation on the keepers of the animals. The keepers are to ensure that

the animals are well secured to avoid committing torts such as nuisance, negligence. In Zambia,

the legislation in perspective is the Public Pounds and Trespass Act chapter 253 of the Laws of

Zambia.

Liability for Injury to Livestock caused by Dogs13

Section 27 (2)(b) states that the owner or occupier of land from which a dog came is liable for

any damage it does to any game or animal in any fenced camp or enclosed place. According to

section 2 of the Act, the term “animal” includes “cattle, horses, sheep, goats and pigs”.

Liability under this section is quite independent of the proof of knowledge or negligence on the

part of the keeper of the dog.

Cattle Trespass

The occupier of land is liable without proof of negligence for damage done by animals in his

possession which trespasses on the land of his neighbor

Defences

1. Contributory negligence and fault of the Plaintiff;

2. Plaintiff a trespasser

3. Act of God; and,

(a) Volenti non fit injuria. But an act of a stranger (e.g. in letting the animal loose or inciting

it to do mischief) is not a defence because the act of a third party is one of the

circumstances against which the person creating the risk should take precautions. Thus in

BEHRENS V. BERTRAM MILLS CIRCUS [1957] 2 Q.B. 1, the keeper was leading

circus elephants to the ring. A small dog snapped at them. They turned and knocked the

Plaintiff's booth, and then were at once brought under control. Circus-owners were held

liable. It was no defence that the elephants acted out of fright, and not viciously; nor that

the dogs had been brought in by a stranger.

UNIT 11: TORTS RELATING TO GOODS

LIABILITY FOR DEFECTIVE PRODUCTS

Goods that a person sale to another should be of merchantable quality and be fit for the purpose

that they are procured for. If the goods are defective and fail to meet the expected standard, the 14

purchaser has a legal right to claim for damages and or replacement. The supplier is liable for

such defective products. However, prior information about the state of the goods before purchase

can waive the purchaser’s right to claim should the goods turn out to be defective. The statute

that supports the above propositions is the Sale of Goods Act 1883.

Goods are usually items that an individual can claim possession and ownership. Note though that

a person can possess goods but not own such goods!

The law of torts recognizes that a person who owns goods should be protected from abusive,

deprivation from his goods and thus be able to claim damages and other rights in the event that

such rights are unlawfully interfered with.

Among the torts that seek to protect a person’s right to such goods are those of trespass to goods

and conversion.

INTERFERENCE WITH GOODS: TORTS OF TRESPASS TO GOODS AND CONVERSION

Trespass to Goods

The tort of trespass consists in committing without lawful justification any act of direct physical

interference with goods in the possession of another. Thus it is a trespass to take away goods or

to do willful damage to them.

The tort may be committed against an animal, e.g. it is a trespass to beat a dog or kill it by giving

it poisoned meat, to willfully frighten a horse so that it runs away, or to drive cattle out of a field

in which they lawfully are.

Trespass to goods is actionable per se without any proof of actual damage. Any unauthorized

touching or moving of an object is actionable at the suit of the possessor of it, even though no

harm ensues.

Trespass to goods like trespass to land, is essentially an injury to possession and not to

ownership. The plaintiff, therefore, must have been in actual possession at the time of the

interference complained of.

Conversion15

A conversion is an act of willful interference without lawful justification, with any chattels in a

manner inconsistent with the right of another, whereby that other is deprived of the use and

possession of it. The tort of conversion is committed by – (1) wrongly taking another’s property;

(2) by wrongly detaining another another’s property, and (3) by wrongly disposing of another’s

property.

In OAKLEY V. LYSTER (1931)1 K.B. 148, the Plaintiff leased land and dumped material there.

The Defendant acquired freehold and wrongfully claimed that the material was his. He used

some of the material himself and his solicitors warned the Plaintiff not to enter on the land. The

Defendant was held liable for Conversion of the material.

Points to Note

When things are found on land, and the true owner is untraceable, it has been suggested

that they vest in the possessor of the land, unless he clearly had no intention to control

things found there. But there are decisions to the contrary which are probably

irreconcilable. In SOUTH STAFFS WATER CO.V. SHARMAN (1896) 2 Q.B. 44, the

Plaintiffs employed the Defendant to clear a pool on their land. He found two gold rings

in the mud. It was held that the Plaintiff’s were entitled to them.

A person not entitled to immediate possession (e.g. a bailor of goods for a fixed term or a

purchaser of goods which are still subject to the vendor’s lien) cannot sue for conversion.

But the act of conversion itself will often give him the right to immediate possession. In

MULLINER V.FLORENCE (1878) 3 Q.B.D. 484, an innkeeper had a lien over the

Plaintiff’s goods for another debt. By selling them he destroyed the lien, and the Plaintiff

could therefore sue for conversion.

Defences to Trespass and Conversion

Authority of the Law;

Retaking the Goods;

Licence; and

16

Abatement of nuisance

Remedies

Recaption: A person entitled to possession of goods of which he has been wrongfully

deprived may retake them, provided he uses no more than reasonable force. But it is

uncertain he may enter upon the land of an innocent third party to do so.

Action for Damages: The Plaintiff is entitled to the full value of the chattel at the date of

the conversion, and to other damages if not too remote. In SOLLOWAY V.

MCLAUGHLIN (1938) A.C. 247, the plaintiff recovered at a higher rate for shares which

had been converted and had fallen in value since the date of conversion.

UNIT 12: DEFAMATION

Introduction

Besides the protection of material interests such as bodily safety and property security, men have

also framed legal rules for the protection of non-material interests such as personality. These

rules protect the self respect, reputation and privacy of the individual and fall within the tort of

defamation- a tort that consists in the publication of a false and defamatory statement concerning

another person without lawful justification.

Actions in defamation are personal and die with the plaintiff (‘actio personalis moriturcum

persona’), except where the defamation affects the plaintiff’s family. Similarly, because the

defamatory statement must refer to a specific plaintiff, it is not possible to defame a whole class

of people. Thus said a judge in J’ANSON v. STUART; “if a man wrote that all lawyers were

thieves, no particular lawyer could sue unless there was something to point to the particular

individual”. But if a class is so small or so completely ascertainable that what is said of the class

is necessarily said of every member of it, then a member of the class can sue.

Some words are uttered with a hidden meaning and this hidden meaning is only known to the

person using them and his class or companions or neighbours. The hidden meaning is known as

17

‘innuendo’. In TOLLEY v. FRY AND SONS LTD (1931) A.C. 323, the plaintiff was a well-

known amateur golfer. The defendants published an advertisement without the plaintiff’s consent

containing his picture and underneath the following words: “the caddy to Tolley said, ‘oh sir,

good short, sir! That ball see it go, sir. My word, how it flies, like a cartet of fry’s, they’re handy

they are good, and priced low, sir”. The plaintiff brought an action for libel, alleging an

innuendo. It was said that a person reading the advertisement would assume that the plaintiff had

been paid for allowing the use of his name in it, and that in consequence he had prostituted his

amateur status as a golfer. It was held that the evidence showed that the advertisement was

capable of this construction and the plaintiff was awarded damages.

An innuendo is proved by witnesses who know the hidden meanng.

What is a Defamatory Statement?

A defamatory statement is one which has the tendency to injure the reputation of the person to

whom it refers; which tends to lower him in the estimation of right-thinking members of society

generally and in particular to cause him to be regarded with feelings of hatred, contempt,

ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-

thinking member of society. Hence the test is an object one, and it is no defence to say that the

statement was not intended to be defamatory, or uttered by way of a joke.

A statement may be defamatory although no one to whom it is published believes it to be true. A

publication is not sufficient unless it is made to a person who understands the defamatory

significance of the statement, and who also understands that it refers to the plaintiff.

The test of the defamatory nature of a statement is its tendency to excite against the plaintiff the

adverse opinions or feelings of other persons. The typical form of defamation is an attack upon

the moral character of the plaintiff, attributing to him any form of disgraceful conduct, such as

crime, dishonesty, untruthfulness, ingratitude, or cruelty. Again a statement is defamatory if it

amounts to a reflection upon the fitness or capacity of the plaintiff in his profession or trade, or

in any undertaking assumed by him.

18

What is not defamatory today may be defamatory tomorrow, or vice versa, for the political and

social ideas of the reasonable man alter with times. E.g. during the religious wars in the middle

ages it was defamatory in some European Countries to a man a Catholic. And during the first and

second world wars, it was defamatory to call someone a German. These terms are no longer

defamatory.

The wrong of defamation is of two kinds – namely, libel and slander

Distinction between Libel and Slander

1. Libel is a defamatory statement published in a permanent and visible form. Such as

writing, printing, pictures, effigies, films, broadcasting and probably tape recordings. The

reading out of a letter has been held to be Libel.

Slander is a defamatory statement which is spoken or conveyed in some transitory form

whether visible or audible, such as gestures or inarticulate but significant sounds. It is not

actionable without proof of special damage (i.e., actual damage which is not too remote.

2. Libel is both a tort and a criminal offence (see e.g. section 191 of the Penal Code, Cap

87 of the Laws of Zambia)

Slander is a civil injury only.

3. Libel is actionable per se.

Slander, is save in special cases, actionable only on proof of actual damage (i.e. the loss

of some material advantage apart from loss of reputation). Slander is actionable per se in the

following cases:

The imputation of a criminal offence which is punishable by imprisonment;

An imputation that the Plaintiff is suffering from an existing contagious disease

such a nature as to exclude him from society;

An imputation against a female of unchastity or adultery; and

19

Words spoken of the Plaintiff which are calculated to disparage him in any office,

profession, calling, trade or business held or carried on by him at the time of

publication

Injurious Falsehood

A defamatory statement must be distinguished from one which is merely injurious. Both are

falsehoods told by one man to the prejudice of another. However, an injurious statement is a

falsehood told about another which in no way affects his reputation but nevertheless in some

other manner causes loss to him. Thus it is not defamatory to state that a certain tradesman has

ceased to carry out business; yet if this statement is willfully false, an action will lie for it.

Abuse

Mere insult or vulgar abuse does not amount to defamation whether it be written or spoken.

What must be Proved?

1. That the statement is defamatory:

2. That the statement referred to the plaintiff-

3. That the statement was published (i.e. made known) to some third person.

Points to Note

1. A postcard or telegram is presumed to be published if dispatched;

2. Every repetition of a libel is a fresh publication;

3. But a mere distributor e.g. a bookseller or a newsvendor is not liable unless he knew or

ought to have known of the libel

Defences

1. Justification

20

It is a good defense that the allegation is true in substance even if not in every detail. This is so

even though the defendant is proved to have been actuated by malicious and improper motives.

Honest belief in the truth of the statement is no defense. See the case of ALEXANDER V. N.E.

(1865) 6 B &S 340. An allegation that the Plaintiff had been convicted of travelling without a

ticket and fined, with three weeks imprisonment in default, was held justified by proof of the

conviction and the fine with two weeks imprisonment in default.

2. Fair Comment

A fair comment on a matter which is of public interest (e.g. the administration of justice, the

conduct of the government and of public servants, the mode in which local authorities and other

public bodies perform their functions, the management of public institutions, or of a private

business of large extent) or is submitted to public criticism (e.g. books and every form of

published literature, works of art publicly exhibited, and public musical or dramatic

performances) is not actionable. This right is one of the aspects of the fundamental principle of

freedom of expression, and the courts are zealous to preserve it unimpaired. The defence of fair

comment is a denial of the libel.

The defence has three elements. It must be shown that the words complained of are (1) comment,

(2) fair comment, and (3) fair comment on a matter of public interest.

3. Comment

It is essential to the plea of fair comment that the defamatory matter must appear on the face of it

to be a comment and not a statement of fact. To come within a plea of fair comment the facts on

which the comment is based must be stated or referred to and the imputation must appear as an

expression of the defendant’s opinion on those facts. The facts which form the basis of the

comment must be in existence when the comment is made.

The comment must be on a matter of public interest or is submitted to public criticism e.g. the

official conduct of a politician, a work of art, and advertised goods. This is usually a question

decided by the Judge.

Fair Comment on Facts Truly Stated

21

Here there are three points to consider: (i) the facts must be truly stated; (ii) the comment must

be fair; (iii) imputation of corruption or dishonourable motives must be warranted by the facts’

(i) The Facts must be Truly Stated

The comment must not misstate facts: no comment can be fair which is built upon facts which

are invented or misstated. But not all the facts referred to need be proved, provided that the

comment is fair having regard to such facts as are provided. The facts must be stated or indicated

in the alleged libel.

(ii) The Comment Must be Fair

Malice negatives the fairness of the comment and the absence of genuine belief in the truth of the

comment is the strongest possible evidence of malice. It is also said that comment is to be

classed as unfair, even in the absence of dishonesty or malice, if the critic fails to show a certain

degree of moderation, judgment and competence.

An attack on a person’s moral character is not a fair comment. In MCQUIRE V. WESTERN

MORNING NEWS (1903) 2 K.B. 100, a critic described a play as “dull, vulgar and degrading.”

the Court said that it should not even have been left for them to decide. In CAMPBELL V.

SPOTTISWOODE([1863) 3 B&S 769- It was imputed that a scheme of the Plaintiff’s for

propagating the gospel in China was a mere pretext for puffing an obscure newspaper” it was

held the Defendant’s belief that this was true was no defense, since in fact it was not true. As it

attacked the Plaintiff’s character it was not a fair comment.

(iii) Imputation of Corrupt Motive

A man’s moral character is not a permissible subject of adverse comment, and this is so even

though the person attacked occupies some public position which makes his character a matter of

public interest. He who says or suggests that a person is dishonest, corrupt, immoral, untruthful,

inspired by base and sordid motive, must either justify his accusation by proving it to be true, or

show that the imputation is a correct inference from the facts commented on. In CAMPBELL v.

SPOTTISHWOODE (1863) 3B&S. 769, it was held actionable to suggest , however honestly,

22

that the editor of a religious magazine, in advocating a scheme for missions to the heathen, was

in reality an imposter inspired by motives of pecuniary gain.

The burden of proving that a comment is fair is on the defendant. He must establish that the facts

upon which the comment is based are true, and that the comment thereupon is warranted in the

sense that it is such as might be made by a reasonable man.

4. Privilege

A privilege statement may be defined as one which is made in such circumstances as to be

exempt from the rule that a man attacks the reputation of another at his own risk. The defendant

being privileged is either wholly free from responsibility or is liable only on proof that he was

animated by a malicious motive and not by any genuine intention to use his privilege for the

purpose for which the law gave it to him. It is not the statement but the occasion which is

privileged. If the occasion is privileged it is for some reason, and the defendant is only entitled to

the protection of the privilege if he uses the occasion for that reason.

Privilege is of two kinds, distinguished as absolute and qualified.

A. Qualified Privilege

There is qualified privilege for statements made;

1. In discharge of a duty, whether legal, social or moral, but only if made to a person with a

corresponding interest to receive it;

2. In the public interest to a person in authority e.g., a letter to an M.P. about some local

impropriety ;

3. In fair and accurate reports of Parliamentary proceedings and public judicial

proceedings;

4. In extracts from Parliamentary Papers, whether printed or broadcast;

5. In professional communications between solicitor and client, the foundation of the

privilege is the importance in the interests of justice that such communications should be

23

free and unfettered by any fear of the consequences. The privilege is limited to the legal

profession and covers all professional communications passing for the purpose of getting

or giving professional advice, and exists even if counsel does not accept the retainer;

6. In protection of a lawful interest of the person making it e.g. if it is made in the defence

of his property or reputation. The other side must have a duty to protect that interest

The statement must be made honestly and without any indirect or improper motive

B. Absolute Privilege

A statement made in circumstances of absolute privilege is not actionable, however false and

malicious it is. Qualified privilege, however, is rebutted by proof of express malice, i.e. spite but

not negligence.

There is absolute privilege for statements made:

1. In Parliament by a member of the House

2. In Parliament Papers published by order of the House

3. In Judicial proceedings, by the judge, jury, parties, witnesses and advocates if made in

reference to the proceedings. The privilege extends to Tribunals which act judicially.

4. Fair, accurate, and contemporaneous reports of public judicial proceedings published in

newspapers.

5. Communications between husband and wife;

6. Certain statements made by one officer of the state to another in the course of official

duty

5. Consent

It is a defence that the plaintiff has expressly or impliedly consented to the publication

complained of

24

6. Apology

The offer or the making of an apology is in general no defence to an action for libel, although it

may be given in evidence in mitigation of damages. In actions for libel contained in a public

newspaper or periodical the defendant may plead that it was inserted without actual malice and

without gross negligence and that before the commencement of the action or at the earliest

opportunity afterwards he inserted in the newspaper or periodical a full apology, or, if the

periodical is ordinarily published at intervals exceeding one week, had offered to publish such

apology in any newspaper or periodical selected by the plaintiff. Every such defence must be

accompanied by a payment of money into court by way of amends.

If the offer is accepted, no further proceedings can be taken against the person making the offer,

though the Court may order him to pay costs and expenses. If the offer is rejected, it is a defense

for the defendant to prove that the words were published innocently and that the offer was made

as soon as was practicable and has not been withdrawn. If the publisher was not the author of the

words, he must prove that they were written by the author without malice.

Remedies

1. Injunction. An application can be made to Court to restrain the Defendant and or his

Agents from continuing to publish or utter words that are defamatory to the Plaintiff. If

damages cannot atone the damage suffered by the Plaintiff, the Court will award an

injunction to the Plaintiff.

2. Damages. Damages should be compensatory and not punitive. They may be aggravated

e.g. by reason of the mental suffering caused by the defamation; or mitigated, e.g., by the

making of a full apology, the Plaintiff’s previous bad reputation or provocation by the

Defendant.

MALICIOUS PROSECUTION/MALICIOUS ABUSE OF PROCESS

What is Malicious Prosecution?

This is the wrongful or improper setting in motion of criminal proceedings against the plaintiff

with the object of harassing or injuring his feelings. Further, the Court acquits the plaintiff.25

It is an actionable wrong to institute maliciously and without reasonable and probable cause

criminal proceedings- a conviction in which might injure a person’s reputation, personal freedom

or property.

In order to succeed, the plaintiff must prove the following:

1. That he was prosecuted in a court of law and not merely questioned by the police;

2. That the proceedings terminated in his favor, whether by acquittal, discontinuance of the

prosecution, a successful appeal or otherwise;

3. That the Defendant acted without reasonable and probable cause, i.e. that he had no

honest belief, based on reasonable grounds, that the Plaintiff was guilty;

4. That s/he suffered damage as a result of the prosecution. Damage means, damage to the

plaintiff’s fame, his person or his property.

It is important to note that if reasonable suspicion against the plaintiff existed when he was

prosecuted his action will fail.

Note: acquaint yourself with the Defamation Act, Cap 68 of the Laws of Zambia.

UNIT 13 THE ECONOMIC TORTS

INTRODUCTION: Liability for statements

Liability for statements arises where the statement is untrue. Words, if untrue: (i) may injure a

person’s reputation if published to a third person i.e. defamation; (ii) may cause direct injury by

shock to the person to whom they are addressed e.g. WILKINSON v. DOWNTON; (iii) may

cause someone to act in reliance upon them and so cause loss or damage to someone else i.e.

malicious falsehood; and, (iv) may cause a person to rely and act upon them and suffer loss or

damage as a result i.e. deceit

26

DECEIT

The tort of deceit consists in the act of making a willfully false statement with intent that the

plaintiff shall act in reliance on it, and with the result that he does so act and suffers harm in

consequence.

There are four main elements in this tort: (1) there must be a false representation of fact; (2) the

representation must be made with knowledge of its falsity, (3) it must be made with the intention

of that it should be acted on by the plaintiff, or by a class of persons which includes the plaintiff,

in the manner which resulted in damage to him; it must be proved that the plaintiff has acted

upon the false statement, and sustained damage by so doing.

The False Representation of Fact

Three points are to be noted. Firstly, the false statement may be made either by word or by

conduct. Secondly, the defendant must have made a positive false statement; a mere passive non-

disclosure of the truth, however deceptive in fact, does not amount to deceit in law in the absence

of a contractual duty to speak (as with the duty of disclosure required in a contract of insurance)

no such duty can arise in tort. The principle is subject to the following qualifications:

1. The non-disclosure of part of the truth may make the statement or the residue positively false.

It is permissible to tell the whole truth or to tell none of it, but it is not always possible to

merely tell part of it.

2. Active concealment of a fact is equivalent to a positive statement that the fact does not exist

3. If the defendant makes a statement which he believes to be true and he afterwards discovers

that it is false before it has been acted on by the plaintiff, or if he makes a statement which is

true when made but becomes false to his knowledge before it has been acted on, it is his duty

to disclose the truth.

4. In certain cases there is a statutory duty of disclosure.

Thirdly, the misrepresentation must be a false statement of fact, and not a mere broken promise.

Knowledge of the Statement’s Falsity27

A false statement is not actionable in deceit unless it is willfully false. Thus in DERRY v. PEEK

(1889) 14 App. Cas. 337, directors of a tramway company which had authority to use steam

power with the consent of the Board of Trade, believing, honestly but unreasonably, that this

consent would be given as a matter of course, issued a prospectus in which it was stated that

they had the right to use steam power without reference to any condition. In reliance on this

statement the plaintiff took shares in the company. The promoters were held not liable in

damages, on the ground that there was no proof that the error was fraudulent.

Intent that Statement shall be acted on

A false statement is not actionable, whatever damage may result from acting in reliance on it,

unless it was made with intent that the plaintiff should act in reliance on it in the manner in

which he did act. The only person entitled to rely on a statement and to act accordingly is he who

is intended to rely on it and to act upon it by the person making it.

Damage to the Plaintiff

No action will lie for a false statement unless the plaintiff did in fact rely and act upon it. If

although the plaintiff relied on the statement, he would have acted as he did even had the

statement not been made, he will have no cause of action.

Note that the statement need not have been made to the Plaintiff himself. See the case of

LANGRIDGE V. LEVY 91837] 2 M. & W. 519. The Defendant had falsely represented to the

Plaintiff’s father when selling him a gun that it was of good make and safe. It burst in the

Plaintiff’s hand. It was held that the Defendant was liable for deceit.

MALICIOUS FALSEHOOD/INJURIOUS FALSEHOOD: SLANDER OF TITLE

The wrong of injurious falsehood consists in false statements made to other persons concerning

the plaintiff whereby he suffers financial loss (or special damage) through the actions of those

others.

The tort of injurious falsehood is to be distinguished from and those of deceit and defamation.

The wrong of deceit consists in false statements made to the plaintiff himself whereby he is

28

induced to act to his own loss; in the tort of malicious falsehood the false statement is made to

other persons concerning the plaintiff.

In the wrong of defamation, the false and hurtful statement attacks the reputation of the plaintiff

but it is not in the wrong of injurious falsehood.

Malicious falsehood has a number of disadvantages over defamation for a claimant. Unlike

defamation, a claimant must prove malice, falsehood and actual or likely financial loss.

The only advantage of malicious falsehood is that it can apply to any statement whereas in

defamation the statement must be defamatory in nature. This is the one area in which it would be

advisable to consider a malicious falsehood action in place of defamation. There may be many

statements which can cause financial loss but which are not defamatory. For example, to falsely

say of a solicitor that he has retired, cannot be defamatory but could be very damaging resulting

in loss of earnings. If the solicitor could show that the statement was made maliciously, he could

bring an action for malicious falsehood

In the wrong of malicious falsehood, it should be noted that no action lies for a false statement

unless it has been made maliciously: here, carelessness alone, however gross, does not suffice to

establish liability. Malice means some dishonest or otherwise improper motive. Thus one who

has his application for employment refused as the result of an inaccurate (but not dishonest)

medical report has no remedy in this tort against the careless doctor.

An action for injurious falsehood lies in a variety of conduct e.g. in cases of slander of title

(i.e. where the defendant questions the plaintiff’s ownership of property), slander of goods

(where the defendant disparages the plaintiff’s title), passing off (where the defendant is selling

his goods or services under the pretence that they are those for another man) and in analogous

cases where damage has been willfully done without just cause or excuse.

Defences

1. That the statement was not addressed to the plaintiff and the defendant would not

therefore have expected the plaintiff to act on it.

2. That the defendant had no knowledge of the falsity of the statement. 29

Remedies

1. Injunction

2. Declaratory (of title) judgment as to the defendant’s title in an action for slander of title

or goods upon the plaintiff which the defendant has challenged.

3. Damages.

PASSING OFF

The legal and economic basis of this tort is to provide protection for the right of property which

exists in an established business, commercial or professional reputation or goodwill. The gist is

that the goods are in effect telling a falsehood about themselves which is calculated to mislead.

The law on this matter is designed to protect traders against that form of unfair competition

which consists in acquiring for oneself, by means of false or devices, the benefit of the reputation

already achieved by rival traders. Normally the defendant seeks to acquire this benefit by passing

off his goods as and for the goods of the plaintiff. T he representation must be such as to cause

confusion in the public mind between the plaintiff’s goods or business and that for the defendant.

Examples are: using a similar trading name, wrapping, identification mark, or description of

goods.

In BOLLINGER V. COSTA BRAVA WINE CO. LIMITED [1960] CH 262. The Defendants,

producers of sparkling wine made in Spain, sold it as “Spanish Champagne.” it was held that the

description of ‘Champagne” referred exclusively to wines grown in the Champagne districts of

France and the Defendants were consequently guilty of Passing Off. It was further held that the

law governing trade competition is wide enough to prevent a person attaching to his product a

name or description with which it has no natural connection inorder to make use of the reputation

and goodwill gained by a product genuinely indicated by that name and description.

The wrong of passing off is not confined to cases of the sale of goods but assumes many forms,

of which the following are the most important:

1. A direct statement that the merchandise or business of the defendant is that of the

plaintiff;30

2. Trading under a name so closely resembling that of the plaintiff as to be mistaken for it

by the public;

3. Selling goods under a trade name already appropriated for goods of that kind by the

plaintiff, or under any name so similar thereto at to be mistaken for it;

4. Selling goods with the trade mark of the plaintiff or any deceptive imitation attached

thereto;

5. Imitating the appearance of the plaintiff’s goods so as to deceive the public

Remedies: (1) injunction (2) either damages or an account of profits at the plaintiff’s option.

INTERFERENCE WITH TRADE: CONSPIRACY, INTIMIDATION, INDUCING A BREACH

OF CONTRACT

1. INTERFERENCE WITH TRADE IN THE LIGHT OF INDUCING A BREACH OF

CONTRACT:

If a third party (A) internationally and without lawful justification induces B to break his contract

with C, C has a right of action against A for the damage which he suffers thereby.

It is no justification for the defendant to say that he had an honest doubt whether he was

interfering with the plaintiff’s contract, or that he had acted without malice, or in good faith, or

that the breach was really for the plaintiff’s benefit, if he had only properly understood the

position. It is enough to show that the defendant did an act which must damage the plaintiff – it

need not be proved that he intended it to do so. In EMERALD CONSTRUCTION CO.

LIMITED V. LOWTHIAN [1966] 1 W.L.R 691: Union officials took action to hamper the work

of sub-contractors and thus induce the main contractors to terminate their contract. They did not

know the terms of the contract but were indifferent as to whether such termination would be

lawful or unlawful. An injunction was granted to restrain them.

Note also that the intentional use of unlawful means by A against B which precludes him from

entering into a contract with C will give C a right of action against A. See: TARLETON V.

MCGAWLEY: In order to prevent the Plaintiff trading with natives in Africa, the Defendant, a

31

rival trader, fired a cannon at a native canoe. It was held that the Defendant was liable for the

damage thereby suffered by the Plaintiff.

2. INTERFERENCE WITH TRADE IN THE LIGHT OF INTIMIDATION

The tort of intimidation is committed if A threatens to act unlawfully against B with the intention

of causing B to act to the detriment of C. For example, an action will lie at the suit of a trader

who has been compelled to discontinue his business by means of threats of personal violence

made against him by the defendant with that intention. Thus, in ROOKES V. BARNARD [1964]

A.C. 1129, the threat was that strike action on the part of all AESD men employed by BOAC

would occur within three days unless the plaintiff was withdrawn from the design department.

The plaintiff was a unionist; although once he had been a shop steward in AESD, and the

defendants Barnard and Fistal were two fellow employees of BOAC, union members, and

Silverthorne, the local trade union official, who was not himself under a contract of employment

with BOAC. The threat made by the defendants was a wrongful act, being in breach of the no-

strike agreement made between BOAC and the union. So there were threats of wrongful acts

aimed and directed at the plaintiff’s employment with the object and result of causing its

termination, for BOAC, were so impressed by the threat that they respondent to it by giving

Rookes one week’s notice of dismissal. On appeal, the House of Lords held that the defendants’

threats constituted the tort of intimidation.

The threat complained of must be a threat to do an act which is in itself illegal. No threat to

exercise one’s legal rights can amount to a cause of action, even if made for the purpose of

intimidation or coercion, and even if inspired by malicious motives.

If the party intimidated does not respond to the threat, then the plaintiff cannot sue, because he

has not been damaged. The damage to the plaintiff must be linked to the coercion of the

threatened party.

32

Courts treat economic loss in the same way as physical loss and is in general justifiable on the

ground that intimidation of any kind is highly objectionable and that there is no reason to limit

the unlawful acts which constitute the wrong to those which are criminal or tortuous as distinct

from those which are breaches of contract. Actionable threats are not limited to trade disputes.

The defence of justification is allowed to the tort of conspiracy and inducement of breach.

3. INTERFERENCE WITH TRADE IN THE LIGHT OF CONSPIRACY

When two or more persons, without lawful justification, combine for the purpose of willfully

causing damage to the Plaintiff, and actual damage results therefrom, they commit the tort of

conspiracy.

CROFTER HAND WOVEN HARRIS TWEED CO. LIMITED V. VEITCH [1942] A.C. 435:

Trade union officials, for the purpose of raising wages on the island of Lewis, persuaded the

Dockers not to handle mainland wool which, it was alleged, was undercutting that spun on the

island. The Dockers (without breaking any contract) complied. It was held that the union

officials were not liable in conspiracy for the damage caused to the mills using mainland wool,

since their purpose was to benefit members of their union.

Note that it is not a tort to threaten a lawful act, however, malicious the intention.

CONCLUSION

This unit has introduced you to economic torts namely deceit, malicious falsehood, passing off

and interference with trade.

UNIT 14: VICARIOUS LIABILITY

INTRODUCTION

The term does not indicate a distinct tort, but rather a process by which one person can be held

liable for a tort committed by the other.

In order for the doctrine of vicarious liability to apply, the following conditions must co-exist:

1. The relationship of master and servant must exist between the defendant and the person

committing the wrong complained of;

33

2. The servant must in committing the wrong have been acting in the course of his

employment

BASIS AND REASONS FOR VICARIOUS LIABILITY

The fundamental basis and reasons for Vicarious Liability is that it provides an avenue for a

claimant to sue and be compensated for the any wrongful act/ omissions committed by the

agents- representing the interests of the Principal.

Vicarious liability also insulates the agent from liability in the event that the agent truthfully and

genuinely conducts his duties in the course of his work. Therefore:

The other rationale for this deviation is that the employer is in control of the behaviour of his

employee; that the employer must bear the burden of employing a negligent worker and that the

employer has greater ability to pay damages to the plaintiff.

WHO IS A SERVANT?

A servant is any person employed by another to do work for him on the terms that the servant is

to be subject to the control and direction of his employer in respect of the manner in which his

work is done.

Characteristics of a master/servant relationship:

There is usually a continuous relationship and the master is generally liable for the

vicarious acts of the servant.

The subject matter of the contract is to carry on continuous work;

The servant is under the control of the master who directs as to how, when and where the

work is to be carried out. Note that where the servant is rent out by one employer to

another, the lending employer continues to retain the control over the worker if he

continues to pay him. This was the decision in the case of MERSEY DOCKS AND

HARBOUR BOARD v. COGGINS AND GRIFFITH (LIVERPOOL) LTD (1947) AC.

Facts of this case are that the appellant board owned a number of mobile cranes, each

34

driven by a skilled workman engaged and paid by them, which they were accustomed to

let out on hire. The respondents, master stevedores, hired one of these cranes so driven to

load a ship. The contract provided that the driver should be the servant of the hirers. In

the course of the loading a third party was injured through the driver’s negligence. At the

time of the accident the stevedores had the immediate direction and control of the

operations to be executed by the crane-driver e.g. the power to order him to pick up and

move a particular piece of cargo. But they had no power to manipulate the crane or its

controls. It was held that the appellant board as the driver’s general employers were

responsible for his negligence.

Additional questions that arise under such circumstances are ‘who can dismiss, how long

the alternative service lasts, what machinery is employed? ;

The servant supplies labour only;

The servant receives a fixed hourly/weekly/monthly wage;

The servant does not supply materials for the job; and

The servant does not provide equipment other than the small tools of trade.

Note that a superior servant is not the master of the inferiors who are under his control, and he is

not responsible for their torts.

EMPLOYER AND INDEPENDENT CONTRACTOR/ EMPLOYEES

An Independent Contractor, on the other hand, merely undertakes to produce a given result and

retains the control of his work. Therefore, the Employer is not liable for the actions/omissions of

the Independent Contractor save for the fact that as a general rule, a man is not liable for the acts

of an independent contractor. The following are the exceptions to this rule:

When the contract is to do something unlawful;

Where the Defendant has been negligent in the appointment of that contractor;

Where the defendant has interfered with the mode of doing the work; and

In cases of strict liability, i.e. certain statutory duties

Characteristic of an employer and Independent Contractor/Employees:

A relationship organized around the completion of a once-off piece of work;

35

The employer is generally not liable for the vicarious acts of independent contractors;

Various methods of payment, including lump sum per job;

The Independent Contractor owns her or his own business;

The Independent Contractor has control over what is done, how it is done, when and

where it is done and whether the Contractor does it personally;

The Independent Contractor is free to hire other people, on her or his own terms, to do

the work which has been agreed to be undertaken;

The Independent Contractor can provide the same services to more than one person or

business at the same time;

The Independent Contractor provides the materials for the job;

The Independent Contractor provides equipment and machinery necessary for the job,

other than the small tools of the trade or equipment which in an overall context would not

be an indicator of a person in business on their own account; and

The Independent Contractor controls the hours of work in fulfilling the job obligations.

DISTINCTION BETWEEN A SERVANT AND AN INDEPENDENT CONTRACTOR

1. A servant is an agent who works under the supervision and direction of his employer; an

independent contractor is one who is his own master.

2. A servant is a person employed to obey his employer’s orders from time to time; an

independent contractor is a person engaged to do certain work, but to exercise his own

discretion as to the mode and time of doing it – he is bound by his contract, but not by

his employer’s orders;

3. A servant is employed under a contract of service (i.e. a contract where the master can

not only order or require what is to be done but how it shall be done) whereas an

independent contractor is employed under a contract of services (i.e. a contract where the

master can only order or require what is to be done) . Other marks of a contract of service

are: (i) the master’s power of selection of his servant, (II) the payment of wages or other

remuneration, (iii) the master’s right of suspension or dismissal.

4. A servant is an integral part of the defendant’s business whereas an independent

contractor runs his own business.

36

THE COURSE OF EMPLOYMENT

An act is done in the course of a servant’s employment if it is of a class of act which he is

expressly or impliedly authorized to do.

A master is not responsible for a wrongful act done by his servant unless it is done in the course

of his employment. It is deemed to be so done if it is either (1) a wrongful act authorized by the

master, or (2) a wrongful and unauthorized mode of doing some act authorized by the master. In

other words, a master is responsible not merely for what he authorizes his servant to do, but also

for the way in which he does it. If a servant does negligently that which he was authorized to do

carefully (E.g. in the case of CENTURY INSURANCE CO. V. NORTHERN IRELAND ROAD

TRANSPORT BOARD [1942] A.C. 509. a driver of a petrol lorry caused an explosion by

lightening a cigarette and throwing the match on the floor, while discharging his load. It was held

that it was a negligent method of carrying out an authorized act, (i.e. his work) and his employers

were accordingly liable.), or if he does fraudulently that which he was authorized to do honestly,

or if he does mistakenly that which he was authorized to correctly, his master will answer for that

negligence, fraud or mistake.

A master is not responsible for the negligence or other wrongful act of his servant simply

because it is committed at a time when the servant is engaged on his master’s business, or

because it is committed while using the tools or equipment provided by the master. It must be

committed in the course of that business, so as to form part of it, and not merely coincident in

time with it.

Even express prohibition of the wrong act is no defence to the master at common law, if that act

was merely a mode of doing what the servant was employed to do. Thus in LIMPUS v.

LONDON GENERAL OMNIBUS CO. (1862) 1 H. & C. 526, the defendant company was held

liable for an accident caused by the act of one of its drivers in drawing across the road so as to

obstruct a rival omnibus. It was held to be no defence that the company had issued specific

instructions to its drivers not to race with or obstruct other vehicles: the driver whose conduct

was in question was engaged to drive and the act which did the mischief was a negligent mod of

driving for which his employers must answer, irrespective of any authority or of any prohibition.

37

The liability of a master extends to fraud (See the case of LLYOD V. GRACE, SMITH & CO.

[1912] A.C. 716 in which a Solicitor’s managing clerk induced a client by fraud to transfer a

mortgage to him and absconded with the proceeds. The Solicitor was held liable, since the

damage was caused by an abuse of authority bestowed on the clerk), assault, arson or trespass no

less than to negligence.

UNIT 15: DEATH IN RELATION TO TORT

DEATH AS EXTINGUISHING LIABILITY

The death of a person resulting from injuries tortuously inflicted may in exceptional cases

extinguish liability in tort or it may create fresh liabilities towards his dependents.

At common law, a right of action in tort was terminated by the death of either party (“actio

personalis moritur cum person”). Therefore, no one could sue for loss inflicted by another’s

death.

DEATH AS CREATING LIABILITY:

Relationship between the Fatal Accidents Acts 1846 to 1908 of the United Kingdom and the

Law Reform (Miscellaneous Provisions) Act, Cap 74 of the Laws of Zambia

The common law rule that no person has any legally protected interest in the life of another has

been to a great extent derogated from by statute, but it still remains the general principle.

In Zambia, actions arising out of fatal accidents are governed by the Fatal Accidents Acts 1846

to 1908 of the United Kingdom as read with sections 2 and 3 of the Law Reform (Miscellaneous

Provisions) Act, Cap 74 of the Laws of Zambia. The objective of these Acts is to provide

maintenance for those relatives who have been deprived of maintenance by the death. The Fatal

Accidents Acts 1846 to1908 and the Law Reform (Miscellaneous Provisions) Act, Cap 74 of the

Laws of Zambia having merely established exceptions to it.

Where there is a claim under the Fatal Accidents Act, 1846, section 2 of that Act allows the

dependants of the deceased person to recover by way of damages the value of their dependency,

which is limited to the loss of the pecuniary benefit arising from the relationship of the

dependants to the deceased, which they would have enjoyed had the deceased continued to live.

38

As regards to Cap 74 of the Laws of Zambia, section 2 that provides that on the death of any

person all causes of action subsisting against or vested in him shall survive against or for the

benefit of his estate except for causes of action for defamation or seduction or for inducing one

spouse to leave or remain apart from the other or to claims for damages on the ground of

adultery.

By section 2 (2 of the Act: where a cause of action survives for the benefit of the estate of a

deceased person, the recoverable damages-

(a) Shall not include any exemplary damages;

(b) In the case of a breach of promise to marry, shall be limited to such damage, if any, to the

estate of that person as flows from the breach of promise to marry;

(c) Where the death of that person has been caused by the act or omission which gave rise to

the cause of action, the recoverable damages are not affected by any loss or gain to his estate

consequent on his death, except that a sum in respect of funeral expenses may be included.

Note that no proceedings shall be maintainable in respect of a cause of action which has survived

against the estate of the deceased unless the proceedings were pending against the deceased at

the time of his death or the proceedings are taken not later than six months after his personal

representative took out representation.

The rights outlined above conferred by Cap 74 are in addition to and not in derogation of any

rights conferred on the dependants of deceased persons by the Fatal Accidents Acts, 1846 to

1908, of the United Kingdom.

Further, note that only one action is to be brought in the name of a personal representative for

actions surviving for the benefit of the deceased’s estate. The action must be brought within three

years after the date of death, or the date of the knowledge of the person for whose benefit the

action is brought, whichever is the later. The action is brought by the personal representative on

behalf of the relatives; but if there is no personal representative or if he does not commence an

39

action within six months, any relative entitled to the protection of the Acts may sue in his own

name on behalf of himself and the others.

There is no right of action unless the deceased himself could have sued had he been merely

injured by the defendant’s act and not killed.

Relatives are: husband, wife, children, grandchildren, parents, grandparents, brother, sisters,

aunts, uncles and their issue; the relationship may be traced through step-relatives, adoption or

illegitimacy, and relatives by marriage have the same rights as deceased’s own relatives.

If the deceased was guilty of contributory negligence the damages are reduced according to the

degree to which he was at fault.

Damages Recoverable: Claim for reasonable expectation for pecuniary benefit; future earnings

and funeral expenses;

Illustration:

BERNARD CHILUNDA v ZAKARIA CHINANZI (1979) Z.R. 195 (H.C.)

Facts:

The deceased, aged fifty-one years, died in a motor accident caused by the negligent driving of

the defendant. The plaintiff sued as a personal representative of the deceased's estate claiming

damages under the Fatal Accidents Acts 1846 to 1908, and the Law Reform (Miscellaneous

Provisions) Act 1967. He claimed that the deceased lost her normal expectation of a happy life

and her estate suffered loss and damage. In his evidence he stated that the deceased used to look

after their children but after her death he had to employ a servant. There was no other

dependence proved.

Held:

(i) Under the Fatal Accidents Acts, damages are intended to compensate the dependants of

the deceased for the loss of the pecuniary benefits derived from the relationship subsisting

between them. They are not necessarily restricted to compensation for the loss of support,

40

whether in cash or in kind. Generally the starting point for assessment of damages in cases of this

nature is the amount of dependency.

(ii) Under the Law Reform (Miscellaneous Provisions) Act 1967 damage are recoverable for

the benefit of the estate of the deceased.

(iii) In assessing damages for loss of expectation of life a very moderate figure should be

awarded.

UNIT 16: REMEDIES AND DEFENCES

REMEDIES - INTRODUCTION

A remedy in tort is a relief which a court makes in favour of a plaintiff. There are various kinds

of remedies, of which the most common is the award of damages, and equitable remedies, such

as injunction. In many cases remedies are subject to statutory provisions. The significant

difference between common law and equitable remedies is that a successful plaintiff is entitled to

common law remedies as of right and a court has no discretion to deny him that remedy. On the

other hand, equitable remedies are in the discretion of the court which can deny a successful

party his remedy if, to put it simply, the court considers that due to his own behaviour in the

case, he does not deserve it.

DAMAGES

This relief is made in form of a monetary award to the plaintiff. The general objective of

damages is to compensate the plaintiff or to put him or her in a position in which they were

before the wrongful act was committed. No profit can be made under the guise of damages.

Damages from one particular cause must be recovered once and for all.

Kinds of Damages

Damages may be compensatory or non-compensatory. Compensatory damages are for loss of

earnings or loss of amenities. Here, the basic principle is that of restitutio in integrum, i.e.,

putting the Plaintiff in the same position as if he had not suffered the wrong.

Non- compensatory damages include

41

(1) Nominal Damages

Nominal damages are an award, given in respect of torts actionable per se, of such a small

amount as to show that they are not intended to be compensation to the party recovering them

but to confirm the claim as legitimate. They are awarded if the successful Plaintiff has suffered

no actual loss or damage e.g. in actions for trespass to land.

(2) Contemptuous Damages

Contemptuous damages usually consist of an award of the smallest coin of the currency (e.g. one

ngwee). They are awarded when the court considers that, although the plaintiff has proved his

case, the action has been a waste of the court’s time and should never have been brought. They

must be distinguished from nominal damages where, although the award is small, the plaintiff

was perfectly justified in bringing the action.

(3) Exemplary damages or Punitive Damages

Exemplary damages are sometimes called vindictive or punitive damages. They are an exception

to the rule that a plaintiff must not be awarded more than his actual loss. They are given not only

as a pecuniary loss sustained, but also as a form of punishment to the defendant, with a view to

preventing similar wrongs in the future by warning that they would result in heavy damages

being awarded. They are only awarded in where the conduct of the defendant is particularly

reprehensible and in contumelious disregard of the plaintiff’s rights e.g. newspaper libels (See

the case of ATTORNEY-GENERAL v. KAPWEPWE (1974) ZR 207 (SC) and cases of abuse of

powers by government officials (see the case of: MWABA (1974) ZR 177

Exemplary damages may only be awarded when specifically pleaded.

These are awarded to punish the defendant and to deter him from similar behavior in the future.

AGGRAVATED DAMAGES

These may be awarded where the conduct of the defendant is such that the injury suffered by the

plaintiff is more distressing than it might have been in less aggravated circumstances and

therefore the plaintiff requires more than the usual amount of damages to compensate him for the

distress and injured feelings caused by the way the tort was committed against him. However,

there is authority for the saying that awards under this head should be moderate.

42

Although similar to exemplary damages, these are not meant to be punitive in nature (although

they may be in effect) but compensatory and their award is not subject to the same restrictions as

exemplary damages.

SPECIAL DAMAGES

Special damages are those damages which a court would not presume to flow from the event

which forms the basis for the action and to be recoverable they must be specially pleaded and

specifically proved (see the case of MHANGO (1983) ZR 61 (SC) and ATTORNEY–

GENERAL v. MPUNDU (1984) ZR 6 (SC).

The opposite of special damages are general or ordinary damages which are such as the law will

presume to flow naturally from that which forms the subject matter of the action.

Thus, in a running down case, general damages may be recovered for injury and inconvenience

due to the defendant’s negligence; but hospital expenses, loss of wages, etc, must be claimed

specifically as special damages.

DAMAGES IN SPECIFIC ACTIONS

Personal Injuries

Special considerations apply to personal injury cases, where restitutio in integrum is impossible.

Damages may be awarded under the following heads:

i. Pain and suffering;

ii. Loss of amenity or loss of enjoyment of life. Damages may be awarded even if the

Plaintiff is unconscious of his loss;

iii. Loss of expectation of life;

iv. Loss of earnings, both actual and prospective. The fact that the Plaintiff would have paid

tax on his earnings must be taken into account.

(v) Medical expenses and other damage.

INJUNCTIONS

Injunctions are either prohibitory or mandatory. A prohibitory injunction is an order restraining

the defendant from committing or repeating an injurious act – for example, a trespass to land or

the erection of a building which would obstruct the plaintiff’s lights. A mandatory injunction is

an order requiring the defendant to do some positive act for the purpose of putting an end to a

43

wrongful state of things created by him – for example pulling down a building which he has

already to the obstruction of the plaintiff’s lights.

Injunctions whether prohibitory or mandatory may be interlocutory or perpetual. An

interlocutory (or interim) injunction is one issued provisionary before the hearing of an action, in

order to prevent the commission of or continuance of an alleged injury in the meantime, pending

an inquiry into the case and a final determination of the right of the plaintiff to a perpetual

injunction.

Injunctions are discretionary remedies, i.e., they cannot be obtained as a matter of right. All

circumstances will be considered, in particular the nature and gravity of the injury and the

conduct of the parties. An injunction will not be granted if damages would be an appropriate

remedy.

EXTRA JUDICIAL REMEDIES

It is not necessary in all cases that a man should resort to judicial proceedings in order to seek

protection or redress in respect of injuries threatened or committed against him. In many

instances the law grants him liberty to help himself by his own act or strength. Examples of extra

judicial remedies are ejecting a trespasser, abating (i.e. terminating by own act of) a nuisance,

retaking chattels, self-defense and distress damage pheasant (i.e. an occupier of land can lawfully

seize any chattels which are lawfully upon his land and have done or are doing damage there,

and to detain them until payment of compensation for the damage are done.

OTHER REMEDIES

In appropriate cases the Court may order the specific restitution of land or chattels of which the

Plaintiff has been dispossessed.

The Plaintiff may obtain an order for an account of profits received by the Defendant in certain

cases, e.g. trespass to mines and quarries, passing off, and infringements of patents, etc.

44

45