LAW OF TORTS

INTRODUCTION
The word tort has been derived from the Latin term “tortum”, which means ‘to
twist’. It means a conduct which is not straight or lawful, but, on the other hand,
twisted or unlawful.1 Tort has been defined variously by different writers.
Winfield says that "tortious liability arises out of breach of duty primarily fixed
by the law: this duty is towards persons generally and its breach is redressable
by an action for unliquidated damages". According to Salmond “Tort is a civil
wrong for which the remedy is a common law action for unliquidated (i.e.
unspecified or unascertained) damages, and which is not exclusively the breach
of a contract or the breach of a trust, or other merely equitable obligation. A
person who commits a tort is called a tortfeasor and if they are more than one,
they are known as joint tortfeasors.

ESSENTIAL CONSTITUENTS OF TORT

1. Wrongful Act: There must be a wrongful act committed by a person or

wrongful omission of the act done by the defendant.
2. Legal Damage or legal injury: The wrongful act must give rise to legal
damage to a person, the plaintiff.
3. Legal Remedy by way of unliquidated damages: When there is a
wrongful act or omission which is recognized in law, there must be some
legal remedy to compensate for the loss.

Tort as a civil wrong provides for remedy, in common law. Whenever there is an
infringement or invasion of legal right, the person whose legal right was violated
can approach to recover damages, though he may not have suffered actual harm.
There are two kinds of torts:

 Those torts which are actionable per se- actionable without the proof of
any damage or loss.
 Torts which are actionable only on proof of damage caused by an act.

Injuria sine damno falls under the first category, there is no requirement to prove
that as a consequence of an act, the plaintiff has suffered any harm. The opposite

1
http://www.legalserviceindia.com/legal/article-574-various-definitions-of-the-term-tort-and-comment-on-any-
one-better-known-to-you.html Accessed on 14TH/2/ 2023

1
of it is Damnum Sine Injuria which means that there is damage but without any
legal injury. The maxims are divided into three parts as follows: -

 Damnum/Damno means actual physical loss.

 Injuria means infringement of a legally protected right or interest.
 Sine means without.

1. Injuria Sine Damnum2

This means ‘’infringement of a legally protected right or interest without actual

physical loss.’’ It reflects a situation where a person suffers infringement or
violation of his rights without any actual loss or damage. In such a case it is not
necessary for the plaintiff to prove actual loss/damage suffered by him in order
to obtain damages [compensation].

In the case Ashby vs. White, the plaintiff was a qualified voter at a parliamentary
election, while the defendant who was a returning officer in election wrongfully
refused to register a vote of the plaintiff. Although the plaintiff didn’t suffer any
loss by the rejection of the vote as the candidate, he wanted to vote for on the
election won. The legal rights of the plaintiff were infringed and therefore the
defendant was held liable.

2. Damnum Sine Injuria3

This means ‘‘actual physical loss without infringement of a legal right or
interest.’’ It arises where a person has suffered actual or substantial loss without
infringement/violation of any legal rights. In this case the law does not provide
any remedy. This is the case with losses due to ordinary trade competitions.

For example, the case, Gloucester Grammar School Case4 Defendant was teacher
in the plaintiff’s school and thereafter left the school. Due to some dispute the
defendant left the plaintiff school and started his own school. As the defendant
was very much liked by his students, children left the plaintiff school and joined
the defendant’s school. Plaintiff sued defendant for monetary loss. It was held
that defendant was not liable. Compensation is no ground of action as no legal
right is violated.

2
https://lawtimesjournal.in/injuria-sine-damno-damnum-sine-injuria/ accessed on 14TH/2/2023
3
https://indianlegalsolution.com/gloucester-grammar-school-case-case-comment/ 14TH/2/2023
4
(1410) YB Hill II Hen,4 of 47 page 21

2
TORT AND BREACH OF CONTRACT

 A tort can be defined as civil wrong, for which remedy is an action for
damages, and which is not only the breach of contract breach of trust or
other merely equitable obligation. A breach of contract is a broken promise
to do or provide something.

 In a tort, the duty is primarily fixed by law5. In breach of contract the duty
is primarily fixed by the parties.6

 Breach of Contract is an infringement of rights in personum. Tort is an

infringement of rights in rem.7

 Damages in Tort are always unliquidated. Damages in Breach of the

contract are liquidated and unliquidated.

 The main remedy is specific performance in a breach of contract while in

tort the main remedy is damages.

 In tort, damages are awarded in order to place the aggrieved party in the
position he would have been had the tort not been committed8 while in
breach of contract, damages are awarded in order to place the aggrieved
party in the position he would have been had the contract not been
breached.9

 In tort, sometimes, the motive is an essential factor to regulate the liability,

for example, Malicious prosecution. A person injured may be allowed for
such damages which he has not suffered actually. A motive is not an
essential factor in breach of contract.

5
Vivienne Harpwood, Modern Tort Law, (Psychology Press, 2005), 127
6
Shirlaw v Shouthern Foundaries (1939) 2 KB 206
7
Nicholas Hopkins, Modern Studies in Property Law, Volume 7, (Bloomsbury 2013), 342
8
Lim V Camden &Islington Area Health Authority (1980) AC 174, 187

9
Addis V Gramophone (1909) AC 488.

3
TORT AND CRIME

Criminal law and civil law differ with respect to how cases are initiated (who may
bring charges or file suit), how cases are decided (by a judge or a jury), what
kinds of punishment or penalty may be imposed and what standards of proof
must be met.

A tort differs from a crime in the following respects: -

 Torts are civil wrongs whereas crimes are criminal wrongs.

Therefore, torts are governed by the civil procedure code and tried
in civil courts while crimes are governed by the criminal procedure
code and tried in criminal courts.

 Under the law of torts, the aim of civil law is not to punish, but to
compensate the aggrieved party through the award of damages
whereas criminal law aims at punishing the accused by payment of
fines, imprisonment or the death penalty in case of capital offences.

 In tort, civil proceedings are instituted by a private individual while

in crime, the proceedings are instituted by the state in most cases.

 In tort, the proof is on a ‘’balance of probabilities’’ while in crime, the

proof is ‘’beyond reasonable doubt.’’

CAPACITY OF THE PARTIES

Every person who is of the age of majority, is of sound mind, and not disqualified
from contracting by any law to which he is subject is competent to contract
according to the law to which he is subject. However, there are certain categories
of persons whose power to make contracts is limited by law, namely minors,
insane or drunk persons, and corporations.10

Contractual Capacity of Infants or Minors

An infant or minor is any person who has not attained the age of 18.11

Contracts entered into by an infant are binding/valid, voidable or void depending

on their nature and purpose.

10
[1919] 2 KB 571
11
Section 2 of the Age of Majority Act

4
1. Binding/Valid contracts

The infant can sue or be sued on these contracts that are legally enforceable.
Both parties are bound to honour their obligations.

These contracts fall into the following categories;

• Contracts for the Supply of “Necessaries”

Necessaries mean goods suitable to the condition in life of such an infant or

minor and to his actual requirement at the time of sale and delivery.12

In Nash v. Inman, the defendant was an infant college student. Before proceeding
to college, his father bought him all the necessary clothing material. While in
college, he however, bought additional clothing material from the plaintiff but
did not pay for them and was sued. His father gave evidence that he had bought
him all the necessary clothing material. It was held that he was not liable as the
goods were not necessaries when supplied.

• Contracts for the Supply of “Other Necessaries”

These are necessaries other than those covered by Section 4 (2) of the Sale of
Goods Act. E.g. Legal services, transport to and from work, lodging facilities etc.

An infant is bound by any contract for the supply of such necessaries. Under the
Sale of Goods Act, whenever an infant is supplied with necessaries, he is liable
to pay not the agreed price but what the court considers as reasonable.

• Educational Contracts

An infant is bound by a contract whose purpose is to promote his education or

instruction.

• Contracts of Beneficial Service

A contract will be of beneficial service to the minor if, it will enable the minor to
earn a living, improve skill, occupation and profession. Case law demonstrates
that an infant can sue or be sued and is bound by contracts whose object is to
benefit him as a person. In Doyle v. White City Stadium, the plaintiff a minor
was licensed to do boxing subject to rules laid down by the British Boxing Board.
One of the rules of the body empowered it to withhold payment of any price
money won if a boxer was disqualified in a competition. The plaintiff was
disqualified on one occasion and the Board withheld payment. The plaintiff sued.
Question was whether the plaintiff was bound by the contract between him and

12
Section 4 (2) of the Sale of Goods Act

5
the Board. It was held that he was as in substance it was intended to benefit him
hence the money was irrecoverable.

3. Voidable Contracts

Certain contracts entered into by an infant are voidable i.e. the infant is entitled
to repudiate/avoid the contract during infancy or within a reasonable time after
attaining the age of majority. The infant escapes liability on it by avoiding the
contract. The infant cannot be sued on the contract during infancy. Examples
include: Partnership agreements and lease or tenancy agreement. An infant
partner is not liable for debts and other liabilities of the partnership during
infancy since the contract is voidable at his option, under Section 12 of the
Partnership Act.
If the infant does not avoid the contract during infancy, or within a reasonable
time after attaining the age of majority, he is liable for debts and other obligations
of the firm from the date he became partner according to Section 13 of the Act.
In Davis v. Beynon-Harris where an infant had taken up a lease but failed to
repudiate the contract during infancy or within a reasonable time thereafter, it
was held that he was liable under the contract.

4. Void Contracts

Under the provisions of the Infants Relief Act (1874) which applies in Kenya as
a statute of general application, certain contracts entered into by infants are
void. These are contracts which have no legal effect at all. They confer no rights
and impose no obligations on the parties. Such contracts include;

 All accounts stated with infants: These are debts admitted by an infant.
The infant cannot be sued on such admission.
 Contracts for the supply of goods other than necessaries.
 Money lending contracts: An infant is not bound to repay any monies
borrowed from a 3rd party as the contract is void.

Contractual Capacity of Persons of Unsound Mind

A contract entered into by a person of unsound mind is voidable at his option by

establishing that:

• The other party was aware of his mental condition.

• He was too insane to understand his acts.

According to Lopes L.J. “In order to avoid a fair contract on the ground of
insanity, the mental capacity of the one contracting must be known to the other

6
contracting party. The defendant must plead and prove not merely his insanity
but the plaintiff’s knowledge of that fact and unless he proves these 2 things he
cannot succeed.” A contract entered into by a person of unsound mind ceases
to be voidable if ratified by him when he is of sound mind. A person of unsound
mind is liable to pay a reasonable amount, if supplied with necessaries.13

GENERAL DEFENSES IN TORTS

This is a set of ‘justifications’ or ‘excuses’ that you can undertake to escape
liability in tort only if your actions have qualified a set of conditions that go with
these defenses.

 Volenti Non-Fit Injuria (Consent)

“Harm suffered with consent is not actionable”. It means that no action can be
brought against a person who caused injury, if the person by his own will and
wish was ready to suffer harm. Consent is of two kinds: Express and implied.
Consent given in written or oral form is express consent. On other hand, consent
that can be inferred from conduct of parties and which need not be express is
implied consent. An example of implied consent is if a person is operated by
doctor it means he consented that part of his body is cut, so as to be cured from
the decease. If a player entered into a ground it means that he is aware about
the risk while playing the game that some injury might be caused to him if
accident occurs in the same way. Hence in the court of law, harm suffered with
consent is not actionable.14

Other examples are:

 When you yourself call somebody to your house you cannot sue your
guests for trespass;
 If you agree to the publication of something you were aware of, then you
cannot sue him for defamation.

For the defense to be available the act should not go beyond the limit of what
has been consented and that the consent of the plaintiff was freely given.

The defense of consent was illustrated in the case of Khimji-vs-Tanga Mombasa

Transport Co. Ltd (1962). In this case the plaintiffs were the personal

13
Section 4 (2) of the Sale of Goods Act
14
Nital S. Nandedkar. General Defenses or Justification for Tortious Liability. Journal of Law of Torts and Consumer
Protection Law. 2019; 2(2): 20–23p.

7
representatives of the deceased who met his death while travelling as a passenger
in the defendant’s bus. The bus reached a place where the road was flooded and
it was risky to cross. The driver was reluctant to continue the journey but some
of the passengers, including the deceased, insisted that the journey should be
continued. The driver eventually yielded and continued with some of the
passengers, including the deceased. The bus got drowned together with all the
passengers aboard. As a result, the deceased’s dead body was found the following
day. It was held that the plaintiff’s action against the defendant could not
succeed because the deceased knew the risk involved and assumed it voluntarily
hence the defense of volenti non fit injuria rightly applied.

 Inevitable Accident.

According to Sir Fredric Pollock, “those accidents in which a person of ordinarily

prudence cannot avoid in spite of all reasonable care on his part in the
circumstances in which they occur” are inevitable accidents.15 No action can be
brought against a person who does a legal act with reasonable care and another
person is in Jordan with the act which occurred in the circumstances which
cannot be avoided. An injury arising out of an inevitable accident is not
actionable in tort because the law of torts is based on the fault principle.

In Brown v. Kendall (1850), the dogs of the plaintiff and the defendant were
fighting with each other. The defendant tried to separate them and while doing
so, he accidentally hit the plaintiff in the eye causing him some serious injuries.
The incident was purely an inevitable accident for which no claim could lie. So,
the court held that the defendant is not liable for the injuries suffered by the
plaintiff as it was purely an accident.

 Vis Major (Act of God).

According to Sir Fredric Pollock “act of God” is an operation of natural forces

unexpected that no human forces or skill could reasonably be expected to
anticipate it16.” Therefore, any acts or incidents which are the result of natural
forces and unconnected with the agency of the man are called as act of God. Act
of God is a kind of inevitable accident in which the natural forces play their role
and causes damage. For example, heavy rainfall, storms, tides, etc.

Essentials required for this defense are:

 Natural forces

15
Dr. J. N. Pande, Law of Torts and Consumer Protection Act, Central law publication, sixth ed.,2007, p.n.34
16
Ibid at 9

8
  There must be an extraordinary occurrence and not the one which could
be anticipated and guarded against reasonably.

The injury in this case is not connected to anyone’s fault hence it is not
actionable in tort.

In Nichols v. Marsland (1876).17 the defendant created an artificial lake on his

land by collecting water from natural streams. Once there was an extraordinary
rainfall, heaviest in human memory. The banks of the lake got destroyed and
washed away all the four bridges belonging to the plaintiff. The court held that
the defendants were not liable as the same was due to the Act of God.

 Necessity

This point is based on the maxim ‘solus populi suprema Lex’ means the welfare
of the people is the supreme law. The maxim has stated that at the time of
necessity individual interest has to be sacrificed. Even if the act was done
intentionally it is not actionable and serves as a good defense where an it is done
to prevent greater harm. It gives a person or a state a privilege to use or take the
property of another.

The general rule is that no person should interfere with the person or property
of another. The defense of necessity may be accepted only in exceptional cases
of imminent danger. Hence the act which causes certain damage is an excuse
when done for the great of the people or to avoid harm.

In Cope v. Sharpe [1912], the defendant entered the plaintiff’s premises to stop
the spread of fire in the adjoining land where the defendant’s master had already
been working. Since the defendant’s act was to prevent greater harm so he was
not held liable for trespass.

 Self (Private) Defense.

Private defense means to save your body and property from any injury which is
going to be caused by the act of another. Private defense is therefore distributed
between two kinds of defense: one is as to body and secondly as to property.18
The law has given permission to protect life or property and for that, it has
allowed the use of reasonable force to protect oneself or one’s property. If excess
force has been used by another person so as to save himself or his property than

17
(1876) 2 Ex D 1
18
Dr. J. N. Pande, Law of Torts and Consumer Protection Act, Central law publication, sixth ed.,2007, p.n.38

9
is required, then the act does not fall under the justification for law of torts.
For example: -

In Collins v. Renison, the plaintiff went up a ladder for nailing a board on a wall
in the defendant’s garden. The defendant threw him off the ladder and when
sued he said that he just gently pushed him off the ladder and nothing else. It
was held that the force used was not justifiable as the defense.

 Statutory Authority.
This is the authority given by statute or law. Once the authority has been given
by law to perform certain act and during performance of that act, if the injury
has been caused to anyone then it is excused even if it would constitute a tort.
It is a defense and the injured party has no remedy except for claiming
compensation as may have been provided by the statute.

In Hammer Smith Rail Co. v. Brand,19 the value of the property of the plaintiff
depreciated due to the loud noise and vibrations produced from the running
trains on the railway line which was constructed under a statutory provision.
The court held that nothing can be claimed for the damage suffered as it was
done as per the statutory provisions and if something is authorized by any
statute or legislature then it serves as a complete defense. The defendant was
held not liable in the case.

 Mistake.

The mistake is of two types:

 Mistake of law
 Mistake of fact

When a defendant acts under a mistaken belief in some situations then he may
use the defense of mistake to avoid his liability under the law of torts. Mistake
of law is absolutely no defense. For example, if a person trespasses over the land
of another he cannot take the defense that he honestly believed that the land
belonged to him.20 However, mistake of fact may be relevant as a defense in tort
in some exceptional circumstances e.g. malicious prosecution, false
imprisonment and deceit. Therefore, where a police officer arrests a person about

19
(1869) LRHL 171
20
Ibid at 9

10
to commit a crime but the person arrested turns out to be innocent, the police
officer is not liable.

In Morrison v. Ritchie & Co, the defendant by mistake published a statement

that the plaintiff had given birth to twins in good faith. The reality of the matter
was that the plaintiff got married just two months before. The defendant was
held liable for the offence of defamation and the element of good faith is
immaterial in such cases.

Judicial Acts

All judicial officers, judges and magistrate are exempted from any liabilities of
work done by them in discharge of their judicial duties. This exemption is
available to all the judicial officers and judges of subordinate courts and higher
courts of the country. This exemption has been given to all judicial members to
discharge their duties independently and without any fear and favour.

Parental and Quasi Parental Authority

Parental authority is the authority given to the parents to use force against their
children, but it should be reasonable one. It does a not amount to tortious act,
if parents use force against their children so as to teach them discipline. There
is certain quasi-parental authority like teachers in the same way. Teachers are
also given authority to use reasonable force against their students so as to make
them good human beings while doing so if injury has been caused then it is
excused from liability.21

Act Causing Slight Harm or Trivial

Slight harm means small acts or trivial or an ordinary damage to a person caused
by an act of another. This is based on maxim de minimis non curat lex to mean
the law does not concern itself with trifles. For example, taking a sip of water

21
Ibid at 9

11
from the bottle of another, pushing the person while boarding on train, falling of
dust by fast running car, pulling or etc. All these things are very small, one
cannot be actionable under the eyes of law hence excused from tortious
liability.22

SPECIFIC TORTS

There are four specific torts to be considered: -

 Nuisance
 Defamation
 Negligence
 Trespass

NUISANCE

Nuisance is a tort relating to land arising from an action or omission which

causes an offence, annoyance, trouble or injury. Prof. Winfield defines nuisance
as an unlawful interference with a person’s use or enjoyment of his land or some
right over or in connection with it, for purposes of law of tort.23 Examples of
nuisances interfering with the comfort, convenience, or health of an occupant
are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high
temperatures.

Nuisance, is actionable only when it is a continuing wrong. A disturbance or

inconvenience on an isolated occasion is not treated as a nuisance except in few
exceptional cases e.g. Rylands-vs-Fletcher, where water escaped only on one
occasion causing damage to the plaintiff.

Nuisances are of two types, namely, Private Nuisance and Public Nuisance.
These are explained as follows: -

 Private Nuisance.

A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or

unlawful use of one's property in a manner that substantially interferes with the
enjoyment or use of another individual's property, without an actual trespass or
physical invasion to the land. This could be encroachment on a neighbour's land,

22
Dr. J. N. Pande, Law of Torts and Consumer Protection Act, Central law publication, sixth ed.,2007, p.46
23
Winfield on Tort, Sixth Edition, 1954, p.536.

12
direct physical injury to a neighbour's land or interference with the neighbour's
quiet enjoyment of their land.

Examples of private nuisance:

 loud noises well above the norm,

 directing rain water onto another person's property,

 the encroachment of Japanese knotweed and its rhizomes onto a property

from a neighbouring land was held to constitute private nuisance, even in
the absence of actual physical damage, because the risk of future damage
given by the invasive nature of the plant and high costs of removal
constituted an immediate interference with the use and enjoyment of land

 smell coming from a waste disposal site.

 Public Nuisance

A public nuisance also known as general or common nuisance is a criminal

wrong; it is an act or omission that obstructs, damages, or inconveniences the
rights of the community. This is when the act or omission causing offence,
annoyance, trouble or injury affects the public generally24 or a class of persons.
In order to prove a public nuisance, it is necessary to show that the nuisance
affects a number of people. Examples are blocking of a highway, Sewage leaking
into rivers etc.

Public nuisance does not create a civil action for any person unless the person
can show that he has suffered some special injury beyond that which is suffered
by the rest of the public. For example, in circumstances where the public
nuisance substantially interferes with the use of an individual's adjoining land.
Therefore, to bring an action in public nuisance, he must prove: -
a) That he has suffered a particular special injury beyond that suffered by
the rest of the public.
b) That the injury suffered is substantial in character and not trivial.
c) That the injury is direct and not merely consequential.

24
Dr. Vijay Chitnis, Law of Torts, p.71-72.

13
Defenses to Nuisance.

 Prescription is a valid defense for private nuisance but not public. If a

private nuisance continues for 20 years, it becomes legal by prescription,
assuming the defendant can show that it has been continuous and the
claimant has been aware of it. A limitation is that the 20 years is from
when the activity became a nuisance, not from when the activity started.
 Statutory authority, when an activity is authorized by legislation; this
applies to both public and private nuisance.
 Consent; If the party claiming injury from the nuisance gave consent to
the activity or condition, but now claims nuisance, the defendant may be
able to avoid liability based on the consent. However, consent will not
always eliminate a defendant’s liability. This is due to a public policy.
 Triviality: -Nuisance is actionable where the damage suffered is
substantial. Therefore, the defendant can plead that the damage caused
due to the nuisance is so trivial, minimal, minor or negligible that no
reasonable person would complain.

NEGLIGENCE.
‘Negligence’ is ‘Lack of Proper Care’. According to Baron Alderson negligence
means: “Omission to do something which a reasonable man guided by those
considerations which regulate conduct of human affairs would do, or doing
something which a reasonable man would not do”. 25 It consists of failure by the
defendant to observe ordinary care or skill towards the plaintiff to whom the
defendant owes the duty of observing ordinary care and skill and which has
caused the plaintiff damage or injury to person or property.

The following are the essential elements of negligence

 A duty of care –a duty of care must be owed to a person

 A breach of that duty –a person’s act/omission must have failed to reach
the standard of carefulness required by the circumstances and so there is
a breach of the duty to take care.
 Causation –the breach must have caused the damage to another person.
 Damage – the damage suffered must be legally recognizable and not too
remote from the breach of duty.26

25
Blyth v. Birmingham Watenvork
26
Winfield & Jolowicz, Tort, 16th edn, p 103.

14
Duty of care: The outcome of negligence cases depends on whether the defendant
owed a duty to the plaintiff. A duty arises when the law recognizes a relationship
between the defendant and the plaintiff requiring the defendant to act in a
certain manner, often with a standard of care, toward the plaintiff.

For example, if a defendant was loading bags of grain onto a truck and struck a
child with one of the bags, the first question that must be resolved is whether
the defendant owed a duty of care to the child. If the loading dock was near a
public place, such a public sidewalk, and the child was merely passing by, then
the court may be more likely to find that the defendant owed a duty to the child.
On the other hand, if the child was trespassing on private property and the
defendant didn't know that the child was present at the time of the accident,
then the court would be less likely to find that the defendant owed a duty.

In the case of Donoghue V. Stevenson (1932)27 The ruling in this case established
the civil law tort of negligence and obliged businesses to observe a duty of care
towards their customers. While attending a store, MS Donoghue was given a
bottle of ginger beer, purchased for her by a friend. The bottle was later
discovered to contain a decomposing snail. Since the bottle was not made of clear
glass, Donoghue consumed most of its contents before she became aware of the
snail. She later fell ill and a physician diagnosed her with gastroenteritis.

Donoghue subsequently took legal action against Mr. David Stevenson, the
manufacturer of the ginger beer. The leading judgement, delivered by Lord Atkin
in 1932, established that Stevenson was responsible for the well-being of
individuals who consumed his products, given that they could not be inspected.

The case established that manufacturers have a duty of care to the end
consumers or users of their products. According to Lord Atkin’s “a manufacturer
of products, which he sells, owes a duty to the consumer to take reasonable
care”. This precedent has evolved and now forms the basis of laws that protect
consumers from contaminated or faulty goods.

Breach of Duty: Once it’s established and proven that a defendant owed a duty
of care to the plaintiff, the second element of negligence a plaintiff must prove is
a breach of that duty of care. This is when a person or company has a duty of
care to another and fails to live up to that standard of care. A defendant breaches
such a duty by failing to exercise reasonable care in fulfilling the duty as
expected. A plaintiff must prove that the defendant’s act or omission caused the

27
(1932) A C 562.

15
plaintiff to be exposed to unreasonable risk of injury and/or harm. In other
words, the defendant failed to meet their obligation to the plaintiff and therefore
put the plaintiff in harm’s way.

Cause in Fact/Causation: A plaintiff must prove that the defendant's

actions were the actual cause of the plaintiff's injury. This is referred to as
causation, meaning that, were it not for the defendant's actions, the plaintiff's
injury would not have occurred. The child in the example above could prove this
element by showing that were it not for the defendant's negligent act of tossing
the grain, the child would not have suffered harm.

Damages: A plaintiff in a negligence case must prove that he has suffered

damage or injury as a result of the defendant’s breach of duty of care, usually in
the form of physical injury to a person or to property, like a car in a car accident.
It's not enough that the defendant failed to exercise reasonable care. The failure
to exercise reasonable care must result in actual damages to a person to whom
the defendant owed a duty of care and a personal injury claim must be brought
to court within the appropriate time frame.

Defenses to Negligence.

The following are the defenses for negligence:28

Contributory negligence: This is the failure by a plaintiff to take reasonable care

for their own safety in the circumstances where that failure contributed to the
accident or the plaintiff contributed to their own injuries because of their own
actions or omissions. Common examples of contributory negligence include:

 failing to wear a seat belt

 intoxication
 a pedestrian running out onto the road
 an employee failing to wear proper safety equipment provided by the
employer.

Inevitable accident: -this is an accident which could not be avoided by the

exercise of care, knowledge, skills or diligence. Therefore, where the act is as a

28
http://www.legalservicesindia.com/article/1297/Negligence-As-A-Tort:-Meaning-Essentials-And-
Defences.html accessed on 22/8/2020

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result of inevitable accident, the defendant is not liable. The issue of inevitable
accident mainly arises in respect of motor vehicle accidents, for example:

 a diabetic driver suffering a hypoglycemic attack

 an object suddenly entering a driver’s eye

 a driver suffering a coughing attack

 a driver being stung by a bee

 a tyre blow out

 a driver suffering a black out.

In the case of Brown Vs Kendal, (1859); the plaintiffs and the defendant dogs
were fighting, while the defendant was trying to separate them, he accidentally
hit the plaintiff in his eye who was standing nearby. The injury to the plaintiff
was held to be a result of an inevitable accident and the defendant was not liable.

Volenti non fit injuria: This applies where the claimant has freely consented to
the negligent act. It amounts to an agreement by the claimant to exempt the
defendant from a duty of care that he would otherwise owe. Consent can be given
expressly where the claimant agrees to the risk of injury, or may be implied from
the claimant's conduct.

Act of God or Vis Major: It is an act which could not, by any amount of human
foresight have been foreseen or if foreseen, could not by any amount of human
care and skill, have been prevented. Such as storm, extra ordinary fall of rain
earthquake etc.

In the case of Nichols Vs Marsland (1875) the defendant had a series of artificial
lakes on his land in construction or maintenance of which there had been no
negligence. Owing to an exceptional heavy rain, some of the reservoirs burst and
carried away four country bridges. It was held that the defendant was not liable
as the water escaped by the act of God.

TRESPASS

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This is the unlawful interference with a person, land or goods without any lawful
justification. It is the unlawful interference with the rights of another or an act
of infringement of the rights of another without justification. There are three
types of trespass, namely;

A. Trespass to Land.
B. Trespass to Person.
C. Trespass to Goods.

A. Trespass to Land.

This means the unjustifiable interference with the possession or unjustifiable

entry on the land of another. Trespass to land is actionable per se, i.e. without
proof of actual damage. Once it is established that the trespass has been
committed, the plaintiff is entitled to redress whether or not he has suffered
damage. The action is based on the principle of ‘’injuria sine damnum,’’ hence it
is not a defense that no damage has been caused to the plaintiff by the trespass.

Trespass to land is generally a civil wrong. However, it may amount to a criminal

proceeding e.g. a trespasser can be prosecuted criminally if he enters somebody’s
land with the intention to steal goods or commit an offence. Trespass by the
animals of a person is treated as if he has committed the trespass himself, hence
the owner of such animals for damage caused by them to the plaintiff’s land.

Trespass to land may take place in any one or more of the following ways: -

 Wrongful entry to the land of another person.

 Walking through the land of another person without permission.
 Throwing or placing objects on the land of another person.
 Sitting on the plaintiff’s fence.

Defenses against Trespass to Land:

i. Prescription: -Land acquired by possession is said to have been acquired

by prescription. In this case the new owner may claim title by prescription
as a defense against the previous owner. A defendant may also
prescription by showing a right of common grazing or right of way over the
plaintiff’s land.
ii. Entry by license: -An entry authorized or licensed by the plaintiff is not
trespass unless the authority or license is abused by the defendant.
iii. Act of necessity: -Entry upon the land of another person is justifiable on
the ground of necessity. In this case the plaintiff is saying that it was

18
 actually necessary to trespass e.g. entry or trespass to put out fire for
public safety or in defense of the country.
iv. Statutory authority: -Where the authority is given by a statute (law),
there is no trespass to land e.g. brokers, auctioneers, etc. have right by
the court to enter the land of the plaintiff.

B. Trespass to Person.
This is a tort which involves wrongs being done to an individual. Even if the
victim suffers no physical harm, it can arise. The three main wrongs which fall
under the umbrella of trespass to the person include:

 battery;

 assault; and

 false imprisonment.

They cannot be committed by accident; they are intentional torts. Trespass to

the person is not a criminal wrong, it is a civil wrong. These are explained as
follows: -

Assault: It is an attempt or offer to apply force to the person of another directly

or indirectly. If the persons making the attempt or offer causes the other to
believe on reasonable grounds that he has the present ability to execute his
purpose as defined by Underhill. 29 It constitutes an attempt to commit battery
upon another individual or group of individual. It happens when a person
threatens to use force against the person (body) of another thus putting the other
person in fear of immediate and real danger e.g. shaking a fist, pointing a gun
menacingly at another, etc. assault is a tort as well as a crime.

Battery: However, slightly, battery consists of touching another person hostilely

or against his will. It amounts to mayhem, if the violence is so severe as to deprive
a person of any member of his body or of any sense serviceable to him in a fight.
In that case, the damages will be greater than those awarded in case of battery.
Battery corresponds to 'use of criminal force' according to section 350 of the
Indian Penal Code. Even slight touching of another in anger is battery as no
bodily harm is necessary.

29
Arthur Underhill, A Summary of the Law of Torts, 9th ed., 1911.

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The use of force may be direct, as in the case of slapping or pushing, or indirect,
when some object is brought into contact with the defendant, as in the case of
setting a dog, throwing something, spitting on face etc., and includes applying
force to some object which is already in physical contact with the plaintiff, as is
in the case of overturning the carriage in which plaintiff is seated, upsetting
ladder, on which one is standing, whipping the horse one is riding upon etc.

The wrongful act must involve physical contact that is what is necessary. Thus,
throwing of water does not constitute battery if water does not fall upon the
plaintiff. Hostile intent is the other element to constitute battery. Force must be
intentional and without any lawful justification. Pushing of another in a crowd
is no battery if it is not deliberate; nor will accidental touch be considered
wrongful; but a mere tap given on the shoulder to effect arrest is battery when
the arrest is unlawful. For the same reason, causing another to be medically
examined against his will constitutes battery as much as a forcible removal of a
spectator from the theatre.

Assault Battery

Battery includes intentional

Assault is the attempt to
Definition application of force to another person
commit battery.
without any lawful justification.

Threat of violence is enough to

Important
constitute assault. No physical Physical contact is mandatory
aspect
contact is necessary.

To cause harm
Purpose To threaten

Justification Self defense Self defense, Necessity

False imprisonment.

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However short, total restraint for some period, upon the liberty of another
without sufficient lawful justification. The restraint may be either physical or by
mere show of authority.30 Elements which constitute this tort are that: (1) the
imprisonment is without lawful justification and (2) it is caused by the defendant
or his servant during the course of employment. It will not constitute false
imprisonment where a person enters a place under some contract or a license,
and is prevented from going out as per terms and conditions of contract; or when
facilities for going out are not provided as they have not been contemplated by
the parties concerned.

Imprisonment may be caused by the defendant or his servant, but it cannot be

said that judicial officers like magistrate, causing arrests, are the agents of the
complainant and are liable for false imprisonment. But the case is otherwise with
a police officer who act as a ministerial agent of the complainant and causes
unlawful arrest. He is liable for false imprisonment, if he does not act under the
authority of law. In essence, the tort of false imprisonment is, only an
infringement of a person's right to freedom of movement granted by law, which
is a prerequisite of all civilized living.

Defenses against Trespass to Person:

i. Volenti non fit injuria: -A person who has voluntarily consented to come
into actual bodily contact with another e.g. in sports, etc. cannot complain
against another person who touches him in the course of playing the game.
ii. Private defense: -A person is within his legal rights to defend himself, his
property and family and can us reasonable force to do so. Therefore, a
person who uses reasonable force under such circumstances is not liable
for trespass to person.
iii. Statutory authority: -A person with legal authority to do an act cannot be
sued for trespass to person e.g. a police officer has statutory authority to
arrest a person in the preservation of a public place. However, reasonable
force must be used to effect such arrest.
iv. Parental authority: -People such as parents, teachers, etc. can inflict
reasonable punishment for the correction and benefit of the children.
Therefore, a parent can chastise or even lock-up a child reasonably
without being guilty of assault, battery or false imprisonment.
C. Trespass to Goods.

This means the direct and intentional interference with goods which are in
possession of another person without lawful justification. The interference

30
Supra note 41, p. 253.

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includes the actual taking of or direct and immediate injury to the goods. For an
act to amount to trespass to goods, the plaintiff must establish the following: -

 That the act of the defendant was direct interference with possession of
the goods and not the person (plaintiff).
 That at the time of the trespass, the plaintiff had the possession of the
goods.
 That the defendant wrongfully interfered with the possession and not
ownership of the goods.
 That the act of the defendant was deliberate and intentional.

Trespass to goods are of two types, namely, Conversion and Detenue. These are
explained as follows: -

Conversion: -This means dealing with goods in a manner that is inconsistent

with the right of a person’s ownership to goods e.g. if A intentionally sells B’s
goods to C without any authority from B, A is guilty of conversion. Therefore,
conversion is denial of the person’s title.

Detenue: -This means the wrongful withholding or retention (detention) of goods

from the person entitled to their immediate possession e.g. if A lends his book to
B and B refuses to return it to A, B is said to have committed the tort of detenue.

Defenses to Trespass to Goods:

i. Right of lien: -This is the right given to a person over the property of
another e.g. an unpaid seller has a right of lien (right to keep and possess
the goods until the goods are paid for in full).
ii. Statutory authority: -A statute may also permit a person to interfere with
the goods of another without incurring liability on trespass to goods.
iii. Judicial authority: -Courts of law and judicial officers may authorize
interference with the goods of another e.g. authority to auctioneers to
attach and sell property of another.

DEFAMATION.

Defamation is injuring the reputation of a person to the right-thinking members

of the society. The tort of defamation is committed by publication of a false

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statement, which lowers a man's reputation and esteem in the judgment of right-
thinking members of society, or it causes others to avoid his company.
Publication or communication of the false statement must be made to a third
person, other than the husband or wife of the author of the false statement.
Every repetition of such statement is itself defamation afresh. It is obvious that
the third person, to whom defamatory statement is published, must know the
import and significance of such statement. Further the victim of defamation
must know that the statement refers to him.

Defamation in permanent form is called 'libel' and includes written statement,

typed or raised letters, pictures, photograph, cinema film, statue, etc. Slander is
defamation in transitory form, which may be exemplified by verbal speech, nod,
wink, shake of head, smile, hissing and finger language of the deaf and the dumb
and so on. According to the English law, in libel, plaintiff need not prove special
damage as it is defamation per se but, the plaintiff must prove special damage,
in case of slander, with some important exceptions.

Essentials of Defamation.

 A false statement of fact;

 The derogatory statement had been “published” – i.e., the account is

communicated to someone other than the person whom the statement is
about. The term publication does not necessarily mean it was printed in a
public document; it could have been spoken to another individual or
published in an online forum.
 The statement specifically “identifies” a person or organization/that the
statement concerns the plaintiff and tends to harm his or her reputation.
It needs to be shown that it is “of and concerning” the person in question.
However, if the subject’s identity has been either altered or omitted in the
statement, that person may not have a libel claim.
 There must be harm. The plaintiff must prove that his or her good name
has been harmed. If you say someone is a "deadbeat" and no one believes
it, there is no harm. On the other hand, if you say someone is a deadbeat,
and a bank declines to give that person a loan, he or she has a case against
you for defamation because there was harm done to that person because
of the statement.

Types of Defamation.
Libel is the publication of a defamatory statement in written or permanent form.
This could be an email, blog, tweet, text or WhatsApp message, newspaper

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article, TV or radio broadcast, video clip uploaded to the internet or hand written
letter.

Slander is concerned with non-permanent forms of expression, such as spoken

statements or gestures, which include a defamatory accusation.

Distinctions between Slander and Libel.

i. Slander is a civil wrong while libel is both a civil and criminal wrong.
ii. Slander is temporary and usually conveyed by speech or gesture whereas
libel is permanent and usually seen by the eye e.g. writing, cinema,
pictorial, etc.
iii. In slander, the plaintiff must prove actual damage because the wrong is
not long lasting whereas in libel, no actual damage needs to be proved
because it is more serious and long lasting.
iv. Slander may be uttered in the heat of the moment or under sudden
provocation, hence unintentional at times. On the other hand, libel shows
greater deliberation and raises the presumption of existence of malice.

Defenses to a defamation claim:

 truth/justification - if the statement is true,31 it will not be considered

defamatory, no matter how damaging it is. But the statement must be true
in all its parts and as a whole. The motive behind making such a statement
is not important.

 public interest - if the statement was published because this was

reasonably believed at the time to be in the public interest.

 privilege - certain situations in which an otherwise defamatory statement

is made, will preclude claims from being brought – e.g during
parliamentary debates or judicial proceedings.

 consent - if the individual consented to the publication of the defamatory

statements or accepted an apology, then they would not be allowed to bring
an action.

31
For example, see Reynolds v. Times Newspapers (1999) 4 All ER 609, p. 614 (HL).

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