TORT LAW

BATTERY

The tort of battery is committed by the direct and intentional or negligent application of an
unwelcome physical force to another irrespective of whether intent to harm or hostility is
involved.

ELEMENTS:

1. Direct act of the defendant

2. The Act must be voluntary

3. State of mind of the defendant that is intentionally.

4. Physical contact with the person of the plaintiff

5. Lack of consent to contact

6. Positive act not ommission

1. DIRECT Act OF the DEFENDANT :

Scott vs Shepherd:
The defendant threw a squib, which is a small, lit firework, into a busy marketplace with lots of
people and stalls. In order to protect themselves and avoid damage, the squib was thrown on by
two other people. When it landed near to the complainant, it exploded and caused injury to his
face. He later lost the use of one of his eyes. The original thrower, the defendant, was charged
with assault and trespass.

The defendant was found liable for trespass.

In Leame vs Bray:

Lord Ellenborough observed:

"it is a settled distinction that where the immediate act itself occasions a prejudice or is an injury
to the plaintiff's person, land etc. trespass vi et armis will lie. Where the act itself is not an injury
but a consequence from that act is prejudicial to the plaintiff's person, goods etc., trespass will
not lie.

If the injury be committed by the immediate act complained of, the action must be trespass;

if the injury be merely consequential upon that act, an action upon the case is the proper
remedy."

Covell vs Laming :

The defendant rode his ship against that of the plaintiff and caused injury to it thereby. The
defendant had apparently tried to steer clear off the plaintiff's ship but run into it (according to
the report either through negligence or ignorance). It was argued that, unless the plaintiff could
show that the defendant intended to bring his ship into the plaintiff's and did so wilfully, the
action in trespass must fail.

Lord Ellenborough explained the law thus:

"Whether the injury complained of arises directly or follows consequentially, from the act of the
defendant, I consider as the only just and intelligible criteria of trespass and case. If, in the dark, I
ignorantly ride against another man on horseback, this is undoubtedly trespass, although I was
not aware of his presence till we came into contact. It makes no difference that here the parties
were sailing on shipboard. The defendant was at the helm, and guided the motions of his vessel.
The winds and waves were only instrumental in carrying her along in the direction which he
communicated. The force, therefore, proceeded from him; and the injury which the plaintiff
sustained was the immediate effect of that force."

From the cases, we can see that this element is not a 'directional' point but an issue of
"causation." The defendant's conduct must have caused the basis of the plaintiff's complaint - in
the case of battery, that would be the physical contact.

2. THE Act COMPLAINED OF MUST BE VOLUNTARY:

This means the plaintiff must prove that the defendant was in control of the act, not whether the
defendant acted willingly.

Gibbons vs Pepper:

In this case, the defendant rode a horse which took fright and ran away with him. He could not
stop the horse, so he shouted to bystanders to give way. The plaintiff who could not get out of
the way fast enough was ran over by the horse. The defendant tried to show that the occurrence
was inevitable. It was held that the action against the defendant must fail.

The Court made the following illustrations: If I ride a horse and Albert whips the horse so that it
runs away with me and runs over another, Albert, not I, is liable in battery.

But if I, by spurring it, was the cause of such accident, then I am guilty. Similarly if Albert takes
Benjamin's hand and strikes Cate, Albert is the trespasser not Benjamin.

3. STATE OF MIND OF DEFENDANT:

In the formative years of the law of torts, people lived far apart from each other. Since the law
was concerned with protecting the security of the individual, the state of mind in which the
defendant acted was not inquired into by the law. Thus the plaintiff will succeed in trespass (that
is battery) if he establishes that the defendant acted either

1. intentionally or

2. negligently.

As noted earlier, intentionally here means deliberately; negligently refers to inadvertence or

recklessness.

That there can be a thing like negligent trespass or battery, however, was doubted by Lord
Denning in:

Letang vs Cooper:

In that case, Lord Denning observed:

The truth is that the distinction between trespass and case is obsolete. We have a different sub-
division altogether. Instead of dividing actions for personal injuries into trespass (direct damage)
or case (consequential damage), we divide the causes of action now according as to whether the
defendant did the injury intentionally or unintentionally.

If one man intentionally applies force directly to another, the plaintiff has a cause of action in
assault and battery, or, if you so please to describe it, in trespass to the person if he does not
inflict injury intentionally but only unintentionally, the plaintiff has no cause of action today in
trespass.

His only cause of action is in negligence and then only on proof of want of reasonable care."
Diplock L.J took the view that Denning had gone too far, that his statement was not necessary
for the resolution of the dispute at hand. It was obiter.

Lord Denning's view, noted above received some support in Wilson vs Pringle. However, the
orthodox view remains that trespass and the torts deriving from it, example battery, can be
committed by defendant intentionally or unintentionally.

Does the intention (state of mind) for trespass relate to the contact or injury?

In Wilson vs Pringle:

Facts:

The plaintiff had a fall at school which caused an injury to his left hip, from which he still
suffers.

The defendant pulled the bag off the plaintiff's shoulder, causing the fall.

The defendant claimed the act was one of ordinary horseplay and induced by the plaintiff, as it
was a school regulation that bags should not be carried over the shoulder.

Issue:

Whether the defendant committed trespass to the person and negligence by pulling the plaintiff's
bag off his shoulder, causing the plaintiff to fall and sustain an injury to his left hip.

HELD:

The court ruled in favour of the plaintiff for damages to be assessed.

Reasoning:
The court ruled that there was no threat and therefore no assault.

A battery requires either an intention to harm or overt hostility, and the use of only a slight
degree of force is not a battery if done by way of a joke or in friendship.

the Court of Appeal said that it is the intention to make contact that constitutes trespass, not the
formulation in one's mind of a design.

Miller vs Attorney-General:

intentionally applied force to the plaintiff.

Stanley vs Powell:

Powell, who was the member of a shooting party, fired at a pheasant but the pellet from his gun
glanced off a tree and accidentally wounded Stanley, another member of the party. It was held
that Powell was not liable. If the act is willful or negligent, the defendant would be liable.

Letang vs Cooper:

Plaintiff was having a sunbath in the parking lot when defendant riding on a motorbike crushed
his legs.

Since there was no intention on part of the defendant the plaintiff's motion failed.

Fowler vs Lanning:

arises from Stanley vs Powell. In that case the principle was laid down that ei incumbit probatio,
qui dicit non qui negat.- literally, the burden of proof lies on the one asserting a thing, not the one
denying it.

Holmes vs Mather:
horses were so startled by the barking of a dog that they run with the groom and the defendant.
Per Bramwell B: "If the act that does an injury is an act of direct force vi et armis, trespass is the
proper remedy (if there is any remedy) where the act is wrongful, either as being willful or as
being the result of negligence... where the act is not wrongful for either of these reasons, no
action is maintainable, though trespass would be the proper form of action if it were wrongful."

4. THERE MUST BE PHYSICAL CONTACT WITH THE PERSON OF PLAINTIFF.

This contact can be person to person or through an instrument. The following cases illustrate the
principle:

R vs Cotesworth:

The defendant spat into the plaintiff's face. Held: battery.

Dumbell vs Roberts:

The plaintiff while on his way home in his employer's uniform, was stopped by two defendants
(police constables) and questioned concerning a bag containing some soap flakes he was
carrying. Soap flakes were rationed goods during the war. The constables were dissatisfied with
the plaintiff's answers; they arrested and detained him, but made no inquiries as to his name or
address as required by law. In an action for false imprisonment, Scott L.J. made this statement
that it is trespass to take fingerprints of a person in custody but not yet convicted or even
committed for trial without his or her consent.

Fagan vs Metropolitan Police Commissioner:

(car on to the foot of constable) - where there is a battery it does not matter whether the battery is
inflicted directly by the body of the offender or through the medium of some weapon or
instrument controlled by the action of the defendant.

But how about removing a person's hat or throwing water on his clothes?
Pursell vs Horn:

In this case the defendant threw water on the claimant and got both the claimant and the
claimant’s clothes, wet.

Issue:

The issue in this case was what degree of direct physical contact was required in order for a
claim in battery to be successful. Essentially the question was whether it was necessary for direct
contact to occur between the bodies of the claimant and defendant or whether indirect contact
would suffice.

Held:

The court held that throwing water on a person can constitute a battery, regardless of the lack of
physical contract between the defendant and the claimant’s bodies.

Note that it is battery to throw water over a man or to overturn a chair on which he is sitting.

Dodwell vs Burford.

In this case the defendant struck a horse which the plaintiff was riding and the plaintiff was
thrown and injured. It was held that it was battery

5. LACK OF CONSENT

The plaintiff must prove that he did not consent to the contact and this can be proved in 3 ways:
1. Express consent:

It is not a battery, if the defendant proves that the plaintiff' expressly agreed or submitted to the
contact. Many events of every day occurrence, example, a haircut, a surgical operation or a
passionate embrace will be battery but for the fact that consent operates as a defence to an action
in battery. (Football, boxing etc. but not boxing during football - but man nodding during a
header will be, covered!!).

Christopherson vs Bare:

The defendant suggested in the pleadings that the plaintiff was assaulted with his consent. It was
held that assault must be an act against the will of a party assaulted: therefore it cannot be said
that a party has been assaulted with his own permission.

Nash vs Sheen:

The plaintiff asked a hairdresser for a permanent wave; instead the hair was given a tone rinse
which dyed the plaintiff's hair an unpleasing colour and caused him a painful rash all over his
body. It was held that the dye was applied without the plaintiff's express consent; the consent
which was given was for a permanent wave. So there was a battery.

2. Presumption of consent:

There is a presumption, in general, of consent to all non-hostile contacts merely incidental to

living in a community.

Cole vs Turner:

Holt C.J. said: "if two or more meet in a narrow passage and without any violence or design of
harm, one touches the other gently, no battery. But if one, in a desire to gain advantage shoves
another aside in an inordinate and violent manner, this is a trespass."

3. Privileged contact.

Privileged contact (allowed by law).

Wiffin vs Kincard:

In this case, the defendant touched the plaintiff with his constable staff to draw his attention;
later, he held him by the collar. It was held that the touch in order to engage the plaintiff's
attention was not a battery.

Coward vs Baddeley:

the plaintiff' sued for assault and false imprisonment. The defendant justified his action on the
ground that he was first assaulted by the plaintiff. The facts show that the defendant was engaged
in extinguishing a fire. The plaintiff told him he was doing it badly.

The defendant told him to mind his own business. The plaintiff then put his hand on the
defendant's shoulders, turned him round to show him how the hose should be managed.
Thereupon defendant gave plaintiff into custody. The jury were told that in the circumstances,
the defendant's arrest of the plaintiff was unjustified unless plaintiff's act had been hostile.

This direction was held to be correct. It was also held that there was absence of intent for
criminal assault such as to justify an arrest: the court expressed the view that perhaps the plaintiff
could be liable for battery because the defendant could not be said to have consented to the way
he was handled by the plaintiff. To determine whether a contact is privileged, look at:

(1.) Nature of the act a blow or a pat?

(2.)Intention with which the act was done.

Sexual touching can amount to a battery - Guarro vs US, example, pinching a person's buttocks.

6. POSITIVE Act; NOT OMISSION TO act

In battery, liability depends on an act, not a failure/omission/refusal to act. The maxim is: 'Not
Doing Is Not Trespass'.

Innes vs Wylie :

In that case the plaintiff who had been expelled from a club attempted to enter the rooms of the
club, but was prevented by a policeman who stood in the doorway and refused to let the plaintiff
pass. Lord Denman, CJ instructing the jury said:

You will say, whether, on the evidence, you think the policeman committed an assault on the
plaintiff, or was merely passive. If the policeman was entirely passive like a door or a wall put to
prevent the plaintiff from entering the room, and simply obstructing the entrance of the plaintiff,
no assault has been committed on the plaintiff and your verdict will be for the defendant.

The question is did the policeman take any active measures to prevent the plaintiff from entering
the room, or did he stand in the doorway passive, and not move at all."

They found for the plaintiff. So presumably they found that the policeman had taken active
measures to block the plaintiff's way.

ASSAULT

This tort is unique in the common law in providing relief for a mere emotional disturbance
unaccompanied by external physical contact. Assault seeks to protect the plaintiff's interest in
freedom from being subjected to mental anxiety.

The law, that is, the requirements, is substantially the same as that of battery, except that, in
assault, there is only an apprehension of imminent physical contact but no contact at all.
Assault may thus be described as an incomplete battery. Timorousness on the part of the plaintiff
is irrelevant; provided the defendant excites apprehension or fear of contact in him, there is
assault. Not just fear; it must be fear of contact. For example, neither a gesture.

1. behind bar, or

2. by a person firmly secured from causing harm to others can constitute assault because any fear
one feels of being hurt would be considered unreasonable in law.

For in the person's situation, he cannot carry out his threat. This means for the threat of battery to
amount to assault, the threat must be real or reasonable or executable.

In Read vs Coker:

the plaintiff, a paper stainer, was in financial difficulties and owed rent. The defendant paid the
rent and bought his equipment under an agreement which secured for the plaintiff a weekly
allowance. One day, the defendant asked him to leave the premises.

The plaintiff refused. The defendant thereupon brought together his workmen who mustered
round the plaintiff tucking up their sleeves and aprons and threatened to break the plaintiff's neck
if he did not leave.

The plaintiff left, and brought an action for assault.

HELD:

No words can amount to assault; but there were here threats of violence, exhibiting an intention
to execute the threat, coupled with ability to act. That is, present ability to carry the threat into
execution. As was stated by Jervis C.J:
"If anything short of actual striking will in law constitute an assault, the facts here clearly
showed that defendant was guilty of assault. There was a threat of violence exhibiting an
intention to assault, and a present ability to carry the threat into execution."

It is not every threat then which constitutes assault. To constitute an assault, there must be:

1. an act constituting a threat to do personal violence to the complainant,

2. a present ability to carry out the threat.

There must be some act done denoting an intention to commit a battery plus the ability there and
then to carry out the threat. The concern therefore is with an intentional conduct which puts a
person in reasonable fear or apprehension of imminent battery.

A vivid analogy is the difference between the BARK of a dog, which equals assault and the
BITE which is battery.

The law of assault thus has all the ingredients of a battery except physical contact. The tort,
however stresses two things:

1. An act manifesting an intention or threat of the defendant to commit battery; and

2. the defendant's ability to execute this intention, i.e. the defendant is in a position to commit
and did manifest an intention to commit battery there and then.

Thomas vs National Union of Mineworkers :

In this case, the defendants organised a strike and picketed around the work-place and hurled
insults at those workers who were going to work in defiance of the strike. The working miners
were in a vehicle. It was held that no amount of violent threats or gestures could, in the
circumstances, amount to assault because there was no capacity to carry out the intention into
effect.

In Stephens vs Myers:

the plaintiff was acting as chairman at a parish meeting, and sat at the head of the table at which
the defendant also sat. There were about six or seven people between the plaintiff and the
defendant. In the course of some angry discussion, the defendant made himself totally intolerable
(interrupted the proceedings) and a motion was moved and passed to eject him from the meeting.

The defendant said he would rather pull the chairman out of the chair than allow himself to be
turned out. He advanced threateningly towards the chairman with his fists clenched but he was
stopped by the church warden before he got near enough to do any harm. The plaintiff (that's, the
chairman) sued him for assault. Tindal C.J., in his summing up to the jury, said:

"It is not every threat, when there is no actual personal violence, that constitutes an assault, there
must, in all cases, be the means of carrying the threat into effect.

The question I shall leave to you will be whether the defendant was advancing at the time in a
threatening attitude, to strike the chairman, if he had not been stopped; then, though he was not
near enough at the time to have struck him, yet if he was advancing with that intent, I think it
amounts to an assault in law.

If he was so advancing that, within a second or two of time, he would have reached the plaintiff,
it seems to me it is an assault in law.

The jury found for the plaintiff; meaning the defendant's conduct constituted an assault.

CHALLENGES: Therefore, if we look at assault from this angle, that is, a threat and ability to
carry out the threat then to point an unloaded gun at another constitutes no assault.
Blake vs Barnard.

Here there was proof of the pointing of a pistol at the plaintiff's head, but there was no proof of
the pistol being loaded. The court held there was no assault.

Attempts have been made to diminish the authority of the case on the grounds that it was decided
on a pleading point.

But it is entirely consistent with the old law's conception of assault as a threat of battery plus the
ability to effect the threat there and then.

Osborn vs Veitch

here, it was held that to point a half-cocked gun to the head of another, and threaten to shoot was
an assault, since cocking the gun was as good as having loaded it.

Miller vs Attorney general:

Abban J said: "To point a loaded revolver at another in such a hostile manner and within
shooting distance and which conduct puts that other person in reasonable fear or apprehension of
a battery constitutes assault."

But, in R vs St. George:

it was held that to point an unloaded gun at another in circumstances that if it had been loaded its
discharge would have been likely to cause injury is an assault, unless the intended victim knows
it to be empty.

In contrast with the decision in Blake vs Barnard, in R vs St. George, it was held that, whether
loaded or unloaded, a pistol is a pistol and to point it at a person therefore constitutes assault.

Once the plaintiff apprehends imminent unpermitted physical contact, then, it is an assault. This
is contrary to the decision in Blake vs Barnard and probably does not accord with the theory of
the tort of assault.
In Mortin vs Shoppee:

the defendant chased the plaintiff with an uplifted whip intending to strike him but the plaintiff
escaped. Chasing with an uplifted whip was held to be assault, because the defendant was
advancing with intent and he had the ability to execute the threat immediately. Remember that in
Read vs Coker, the mere surrounding of the plaintiff with servants was held to constitute assault.
How about chasing a person without a whip?

CAN MERE WORDS CONSTITUTE AN ASSAULT?

In the old law, words per se, no matter how menacing, did not constitute assault. This was
justified on grounds that merely saying and not doing does not constitute trespass.

In Meade vs Belt:

the defendants went to Meade's house at night and threatened to show him if he came out. They
sang threatening war songs and used violent language. Meade came out with a loaded gun and
shot one of them. It was held that the attack on the house at night constituted assault, and not the
words per se.

But in R vs Wilson:

the appellant was caught poaching by a gamekeeper. He was charged with assault on the
gamekeeper with intent to evade arrest. The arrest was found unlawful because only the name
instead of the name plus address, as required by statute, was asked for by the gamekeeper. The
poacher was convicted of common assault and appealed. It was held that when he was surprised
by the gamekeeper, he shouted "Get out knives." Per Lord Goddard, C.J.:
"No doubt what the court thought was the serious part of this case... was that the man threatened
to get out knives. He called out "Get out knives", which itself would be an assault, in addition to
kicking the gamekeeper."

R vs Wilson thus holds that certain words can cause assault, provided they create a reasonable
apprehension of imminent physical contact.

HOW ABOUT A CONDITIONAL THREAT OF BATTERY?

Even if words alone cannot constitute assault, words accompanying an act can negate assault, so
it was held in:

Tuberville vs Savage:

This was an action for assault, battery and wounding; the defendant alleged provocation. The
evidence to prove the provocation was that the plaintiff put his hand on his sword and said: "if it
were not assize-time, I would not take such language from you.

Was that an assault?

The court held that it was not. For what the plaintiff meant was that he would not assault him
because the judges were in town. The intention manifested and the act equal the assault

"Therefore, if one strikes another upon the hand, or arm or breast in discourse, it is no assault,
there being no intention to assault. But, if one, intending to assault, strike at another and miss
him, or hits somebody else other than his intended target this is an assault; so if he holds up his
hand against another in a threatening manner and says nothing, it is an assault."

Judgment was given in favour of the plaintiff in the substantive suit. A point to note here is that
the touching of the sword without the accompanying words was considered an assault by itself
because it was a gesture which suggested that the defendant was about to attack the plaintiff with
the sword.
All the cases discussed so far are grappling with one challenge - namely, whether given the
nature of the protection offered by the tort of assault and the risk of misuse, the fear that the
plaintiff entertained a threatened battery is REASONABLE ENOUGH IN THE
CIRCUMSTANCES.

Tuberville vs Savage:

Facts

A man placed his hand on his sword and told another, “If it were not assize-time, I would not
take such language.” The justices of assize were in town.

Issues

The question was as to whether laying a hand on a sword and stating “If it were not assize-time, I
would not take such language,” constituted an unlawful assault by placing another in
apprehension of immediate violence.

Decision/Outcome:

The Court held that an assault requires both:

(1) the intention and

(2) the act of assault.

Even an act of, for example, striking a man, without an intention to assault, does not constitute
an assault. Accordingly, the Court held that the facts did not give rise as the man merely
stipulated that he would have the intention to assault if it were not assize-time. It was, indeed,
assize-time and the man’s declaration expressly stipulated that he would not and did not intend
tocommit an assault. Thus, there could have been no assault as there were no intention nor act of
assault, nor imminent threat thereof

Bruce vs Dyer:

provides a reasonable rationalisation of the controversy over loaded and unloaded guns, toy
weapons and words. In that case, Ferguson J put the point as follows:

"Usually, when there is no actual intention to use violence there can be no assault. When there is
no power to use violence to the knowledge of the plaintiff there can be no assault. There need not
be in fact any actual intention or power to use violence, for it is enough if the plaintiff on
reasonable ground believes that he is in fact in danger of violence. So if a person shakes his fist
at another, the person so assaulted may strike back, if he, on reasonable grounds, believes that he
is in danger."

PRINCIPLES GOVERNING THE AWARD OF DAMAGES : battery and assault:

Assault and battery are actionable per se. Once the tort is acknowledged, damages are at large.
Any consequential loss, example, damage to chattels or physical injuries, is recoverable, if it is
not too remote. But the quantum of the damages depends on proof of actual loss that is to say
consequential loss must be strictly proved. But general damages are at large.

In Nsiah vs Ampratwum:

Apaloo J, assessed general damages at £1,500 in favour of the plaintiff because he found the
"assault was outrageous in the extreme and was, entirely unprovoked. The plaintiff was severely
beaten and left for dead and with a stroke of bad luck, may well have died... In all the
circumstances of this case, and bearing in mind that the first defendant used these sanitary
labourers as tools to vent his private vengeance on the plaintiff and did so callously. ... I would
award a large sum of damages.
Collins vs Wilcock

Definition of battery, unlawful touching when beyond scope of police authority

Facts

A police officer wished to question a woman in relation to her alleged activity as a prostitute.
The woman decided to walk away, but the police officer was intent on stopping her and in order
to do so, grabbed her arm in order to prevent her from walking away. Under the Street Offences
Act, the police officer had no power to detain the woman. The woman struggled with the police
officer and scratched him. She was charged with assaulting a police officer in the course of his
duty.

Issues

The issue in this case was whether the conviction for assaulting a police officer was lawful given
the lack of legal authority on the part of the police officer to restrain the woman.

Decision

It was held that the police officer was acting outside the scope of his powers as he had no power
to arrest the woman in that situation and therefore, was acting outside of the scope of his duties
as a police officer.

There was no question therefore of assaulting a police officer in the course of his duty. It was
held further that the grabbing on the part of the police officer, without the power to make an
arrest, amounted to an unlawful assault (a battery).

The woman was entitled to resist as an action of self-defence. Her conviction was therefore
quashed. The court took the opportunity to clarify the meaning of battery as a touching of
another with hostile intent or in other words any intentional touching outside of the scope of
what normally acceptable

CHAPTER 6
UNLAWFUL ARREST

Everyone in Ghana is entitled to freedom from physical restraint as stated in (Article 14 of the
1992 Constitution) and is protected against unlawful interference with his or her freedom of
movement and personal liberty. The tort of unlawful arrest secures these freedoms.

That is when you arrest a person in violation of the law, you commit the tort of unlawful arrest.
The law on unlawful arrest is to be found in three sources:

1. the common law;

2. the Criminal Procedure Act, 1960 (Act 30) as amended by N.R.C.D. 235; and

3. articles 14, 15, 19 and 21 of the Constitution, 1992 of Ghana.

THE COMMON LAW RULES

Christie vs Leachinsky:

This case provides the common law rules on arrest. In that case, the appellants who were
Liverpool police officers arrested the respondent at his warehouse in Liverpool, without a
warrant. At the time, they suspected and had reasonable grounds for suspecting that he had stolen
or feloniously received, at Leicester, a bale of cloth then in the warehouse, but they did not give
this as the ground of the arrest.

Instead they said they were arresting him on a charge of "unlawful possession" under the
Liverpool Corporation Act, 1921, though in the circumstances, the Act gave them no power of
arrest without a warrant. The respondent was taken to the police station and brought before a
magistrate on the unlawful possession charge.
In an action for false imprisonment, the appellants sought to justify the arrest and detention on
the common law ground. Per Viscount Simons."

(1.) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime
of a sort which does not require a warrant, he must in ordinary circumstances inform the person
arrested of the true ground of arrest.

He is not entitled to keep the true ground to himself or to give a reason which is not true. In other
words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

(2.) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain
exceptions, is liable for false imprisonment.

(3.) The requirement that the person arrested should be informed of the reason why he is seized
naturally does not exist if the circumstances are such that he must know the general nature of the
alleged offence for which he is detained example, if he is caught "red handed.

(4.) The requirement that he should be so informed does not mean that technical or precise
language need be used. The matter is a matter of substance, and turns on the elementary
proposition that, in this country, a person is, prima facie, entitled to his freedom and is only
required to submit to restraints on his freedom if he knows in substance the reason it is claimed
that this restraint should be imposed.

(5.) The person arrested cannot complain that he has not been supplied with the above
information, as and when he should be, if he himself produces the situation which makes it
practically impossible to inform him example by immediate counterattack or by running away.
These principles equally apply to a private person who arrests on suspicion."

Per Lord Simonds ,"Blind, unquestioning obedience is the law of tyrants and of slaves: it does
not yet flourish on English soil."
Therefore, according to the common law principles as enunciated in the House of Lords, nobody
has a right to arrest another unless authorised by law.

As indicated earlier, the statutory law on arrest is contained in the Criminal Procedure Act, 1960
(Act 30).

STATUTORY LAWS ON Unlawful Arrest In Ghana

1. General provisions relating to arrest:

Section 3 of Act 30 is relevant here. To arrest a person you must actually touch or confine the
body of the arrestee, unless he submits to custody by word or deed.

Asante vs The Republic:

In that case, a woman lodged a complaint that she had been assaulted by the appellant. An escort
police constable, was detailed to go with her to invite the appellant to the police station. The
police constable, when the appellant was found, showed him his identity card and invited him to
the police station.

The appellant refused to go. The police constable did not tell him why he was wanted at the
station. Upon the appellant's refusal, the police constable seized the ignition key of his car, thus
preventing him from driving away.

To retrieve the key, the appellant knocked the police constable down and, while the police
constable was on the ground, kicked him injuring him and his trousers.

The appellant was convicted of two charges of assault on the police constable in the execution of
his duty and of causing damage to the property of the police constable. He appealed arguing that:

1. his arrest was unlawful on the evidence;

2. ipso facto, he was justified in resisting the unlawful arrest; and

3. his conviction on charge 2 was bad because the value of the property rather than the value of
damage was used...

His appeal was allowed on the ground that the arrest was unlawful because:

(1.) The police constable failed to put the appellant under lawful arrest by not informing him of
the cause of the arrest as required by section 10 of Act 30 (now NRCD 235) which empowers a
police man to arrest without warrant, and

(2.) the police constable committed assault on the appellant by refusing to leave the spot where
the appellant was and seizing his ignition key which was not an integral part of the process of
arresting the appellant.

Anterkyi J stated thus:

"And if, as the record shows, the police officer merely told the appellant that he was wanted at,
or being invited to the police station. The appellant was not legally obliged to go there for a mere
chat."

Can the police sit in your car and insist on being driven to the police station? No.

The conviction on charge two was also set aside because the appellate court agreed with him that
the value of the damage to the uniform, not the cost of a new one, should have been used.

Section 4.
If you are arresting by a warrant and you believe he has entered a house, the occupier is required
to afford you reasonable facilities to search the place for the person. If he fails, you can break
into the place to effect the arrest.

Section 5.

The person effecting the arrest may likewise break out to liberate himself.

Section 6.

DPP vs Hawkson; Lewis vs Chief Constable. These cases decide that a person arrested is to be
subjected to no more restraint than is necessary to prevent his escape (see Article 15 of 1992
Constitution).

Section 7.

Unless the arrestee is caught in flagrante delicto, (that is, in the act) the arrestor shall inform the
arrestee of the cause of the arrest; where he is acting under a warrant, he must notify the arrestee
of the substance of the warrant and show it to him if he so desires.

Yaw vs Cobbina :

the plaintiff had earlier lodged a complaint for the ejection of his caretakers from the farm. Until
late in 1958, he was the chief of Yamfo, a town near Sunyani. He was destooled and notice to
that effect was published in the Gazette of November 1958. He was further ordered to hand over
all the stool properties to Nana Boama II, the new chief, who was authorised to seize and take
possession of such properties.

He was allegedly restrained when he would not give up the black stools and imprisoned in
Sunyani. Police justification was that he was arrested and detained for committing in their
presence the offence of hindering the recovery of the stool property. He further alleged that he
was not told the reason why he was arrested.

The plaintiff sued for £5,000 damages for unlawful arrest and false imprisonment. It was held
that the arrest and detention were not unlawful and the plaintiff was released, as soon as the
police decided not to prosecute him.
It was not unlawful because it was in consequence of his refusal to hand over the black stools, an
act which was an offence liable to summary conviction under the Statutes Law (Amendment)
(No. 2) Act, 1957, section 7.

In the circumstances, he ought to have known the reason for his detention and it was not
necessary for him to be told.

Asumani Bugembe vs Attorney-General:

From conflicting evidence, the court found that the plaintiff was injured when resisting arrest in
his shop at Nakawa, in the city of Kampala but that the police failed to inform the plaintiff of the
reason for his arrest.

The plaintiff sought damages for assault. Bennett, C.J. (Uganda) said:

"I am satisfied on a balance of probabilities, that Sergeant Aliangwa did go to the plaintiff's shop
after the plaintiff had refused to make a statement to Detective Constable Loumi; that because
the plaintiff threatened Loumi, Aliangwa had decided to arrest the plaintiff; that before he could
do so and before he had laid hands on the plaintiff, the plaintiff assaulted him and pulled him
into the shop.

I believe that Aliangwa and the other members of the police party were on the defensive
throughout, although no doubt they fought back in defending themselves against overwhelming
odds.

I am satisfied that the plaintiff's injuries were sustained in this affray, while the police were
lawfully defending themselves against an unruly mob of whom the plaintiff was the leader. I am
satisfied that, when Inspector Kasoro and his party of police arrived on the scene, the plaintiff
and his mob were actively engaged in attacking Sergeant Aliangwa and another policeman

In my judgment, Inspector Kasoro was justified in arresting the plaintiff. The plaintiff was not at
that time lawfully resisting an attempt to arrest him. As already indicated, I believe that the
plaintiff resorted to violence before Sergeant Aliangwa laid hands on him.

One of the requirements of a lawful arrest at common law is that the person arrested should be
informed of the reason for his arrest:

There are two exceptions to this rule which were stated by Viscount Simon in the English cases:
1. The requirement that the person arrested should be informed of the reason why he is seized
naturally does not exist if the circumstances are such that he must know the general nature of the
alleged offence for which he is detained....

2. The person arrested cannot complain that he has not been given the above information as and
when he should be, if he himself produces the situation which makes it practically impossible to
inform him, example by immediate counter-attack or by running away.

In my judgment both these exceptions are applicable to the circumstances of the instant case.

I find that the plaintiff's arrest by Inspector Kasoro was lawful. The plaintiff's case is dismissed
and he is ordered to pay the defendant's costs."

Section 8.

The arrestee is to be decently searched and all things found on him placed in safe custody. The
purpose of this search is to, inter alia, seize anything he can use to harm himself or others while
in custody.

Section 9.

The arrestee must be taken with all reasonable despatch to a police station or other place where
the arrestee can be taken and to be told, without delay, of the charge against him. The arrestee is
to be given reasonable facilities for obtaining legal advice, taking steps to furnish bail and
making arrangements for his defence or release.

Section 14.

Any private person arresting without warrant shall without unnecessary delay hand arrestee over
to a police officer or police station or take him to nearest police station.

Section 15.

A person taken into custody without warrant shall be released not later than 48 hours unless he is
earlier brought before a court.
He can be bonded with or without sureties to appear before such court or police station or place
and at such time as may be stated in the bond.

Generally, the law requires arrests to be made with a warrant.

Under Act 30, there are two types of arrest:

(1) ARREST WITH A Warrant,

in which case there can be no action because the warrant is issued by a judicial officer and the
judicial officer's intervention ends any action, example, false Imprisonment. This is because,
constitutionally, a judge enjoys immunity from action for even wrongs committed in the course
of discharging his functions.

(2) ARREST WITHOUT warrant. Both types of arrest are regulated by various provisions of Act
30.

ARREST WITH A WARRANT UNDER SECTIONS 71 to 81 OF Act 30

Sections 72 and 73(1) provide that the warrant can be issued only by a judge upon a complaint or
charge made before him on oath. Section 73(2) requires that the warrant must:

1. state briefly the offence with which the person against whom it is issued is

2. indicate the name or other description of the person example Kofi Mensah; and
3. order the person or persons to whom it is directed to apprehend the person against whom it is
issued and bring him before the issuing court or some other court with jurisdiction over the
matter to answer the charge(s) against him and to be further dealt with according to law.

The warrant remains in force until executed or cancelled by the issuing court. The warrant may
be directed to more officers or persons than one. The person executing the warrant is required,
without unnecessary delay, to bring the person arrested before the court mentioned in the warrant
with an endorsement showing the time and place of the execution.

Where a person has been arrested, the police can search the premises or his body and seize
material relevant to the prosecution of any crime committed by any person.

ARREST WITHOUT WARRANT

The law on arrests without a warrant distinguishes between arrests by private individuals and by
law enforcement agents such as the police. In this case, a police officer or other law enforcement
agent having police powers, has greater protection under the law than a private citizen, that is
greater powers of arrest without warrant. This is regulated by sections 10 and 12 of Act 30 as
amended by the Criminal Procedure Act (Amendment) Decree, 1975 (NRCD 235)..

ARREST BY A PRIVATE PERSON:

Section 12 of Act 30 as amended by the Criminal Procedure Act (Amendment) Decree, 1975
(NRCD 235) regulates this subject. Section 12 provides for two separate scenarios. Scenario 1
relates to an occurrence which the person sees.

The relevant rules are briefly stated below. A private person may arrest without warrant any
person who, in his presence, commits any of 5 offences namely:

1. any offence involving the use of force or violence;

2. any offence whereby bodily harm is caused to any person;

3. any offence in the nature of stealing or fraud;

4. any offence involving injury to public property;

5. any offence involving injury to property owned by, or in the lawful care or custody of, that
private person.

Scenario 2: A private person may arrest without warrant any person whom he reasonably
suspects of having committed any of the offences mentioned above, provided that an offence of
that nature has in fact been committed. In other words, in scenario 2, the arrest is being effected
on suspicion, since the one effecting the arrest was not there when the offence was committed.

Walter vs Smith & Sons:

In that case, the plaintiff was for nine years assistant manager at a bookstall of the defendants at
the King's Cross Railway Station of the Great Northern Railway. Early in 1912, at the half yearly
stocktaking, deficiencies were discovered. It was clear this must be due to pilfering on the part of
one or more of the defendants' servants. Stocks were taken in February, and April and further
deficiencies were noted.

The defendants, in order to detect the culprit, set a trap. Copies of the book "Traffic" were
marked and delivered at the bookstall at King's Cross. An agent of the defendants later went to a
shop at Staines kept by the plaintiff and his wife to purchase a copy of the book. One of the
marked ones was sold to him.

The book had been taken by the plaintiff on 15 June, 1912 from the bookstall without payment
having been made and without the knowledge of the manager or the assistants.

After inquiries, it was discovered that the plaintiff had also breached his contract by setting up,
together with his wife, a rival company. The plaintiff was questioned and he gave unsatisfactory
answers as to how he came to possess the marked book.
Mr. Hornby, a manager of the defendant honestly believed the plaintiff to have been responsible
for the thefts which had been going on, and handed him over to the police. He was taken to the
police court and charged with stealing the book.

He was eventually acquitted. His defence which was accepted by the jury was that, in taking the
book, he had no felonious intent. Thereafter, he sued his employers for unlawful arrest and false
imprisonment.

Sir Rufus Isaacs C.J., relying on the statement of law, as is to be found in Bullen & Leake's
Precedents of Pleading stated the applicable law as follows:

"At common law, a police constable may arrest a person if he has reasonable cause to suspect
that a felony has been committed although it afterwards appears that no felony has been
committed, but that is not so, when a private person makes or causes the arrest, for to justify his
action he must prove, inter alia, that a felony has actually been committed.

I have come to the conclusion that it is necessary for a private person to prove that the same
felony had been committed for which the plaintiff had been given into custody...." He stated:

"A private individual is justified in himself arresting a person or ordering him to be arrested
where a felony has been committed and he has reasonable grounds of suspicion that the person
accused is guilty of it - that means the felony for which he has been arrested." He further stated:

"Where a person, instead of having recourse to legal proceedings by applying for a judicial
warrant for arrest or laying an information or issuing other process well known to the law, gives
another into custody, he takes a risk upon himself by which he must abide, and, if, in the result, it
turns out that the person arrested was innocent, and that therefore the arrest was wrongful, he
cannot plead any lawful excuse unless he can bring himself within the proposition of law which I
have enunciated in this judgment.

In this case, although the defendants thought, and indeed it appeared that they were justified in
thinking, that the plaintiff was the person who had committed the theft, it turned out in fact that
they were wrong.
The felony for which they have handed the plaintiff into custody had not in fact been committed,
and, therefore, the very basis upon which they must rest any defence of lawful excuse for the
wrongful arrest of another fails them in this case.

Although I am quite satisfied, not only that they acted with perfect bona fide in the matter but
were genuinely convinced after reasonable inquiry that they had in fact caught the perpetrator of
the crime, it now turns out that they were mistaken, and it cannot be established that the crime
had been committed for which they gave the plaintiff into custody; they have failed to justify in
law the arrest, and there must, therefore, be judgment for the plaintiff...."

In summary, the law allows a private individual to arrest another on suspicion where the offence
was not committed in her presence. However, three conditions must be satisfied, otherwise the
arrest will be unlawful.

1. The basis for the suspicion must be reasonable.

2. The arrest must relate to one of the five offences listed above.

3. The offence must have actually been committed by the person being arrested.

The law is clear that, when a private individual arrests another without a warrant and only on
suspicion and the suspected offence is found not to have been committed for whatever reason, he
opens himself to a suit for unlawful arrest and possibly false imprisonment.

ARREST BY POLICE OFFICER:

This subject is regulated by section 10 of Act 30 as amended by the Criminal Procedure Act
(Amendment) Decree, 1975 (NRCD 235). The applicable rules are as follows:
(1) A police officer may arrest without warrant any person who:

1. commits an offence in his presence;

2. obstructs a police officer in the execution of his duty, that is in the lawful execution of his
duty;

3. has escaped or attempted to escape from lawful custody;

4. has in his possession any implement adapted or intended for use in unlawfully entering any
building, and who gives no reasonable excuse for his possession of it;

5. has in his possession anything which may reasonably be suspected to be stolen property. It
must be noted that, unlike arrest by a private individual, here in the case of a police officer or a
law enforcement agent, the requirement that the offence must be committed in his presence is
just one of the circumstances and there is no limit on the offences for which the arrest can be
made.

(2) A police officer may also arrest without warrant any person whom he suspects upon
reasonable grounds:

1. of having committed an offence;

2. of being about to commit an offence, where there is no other practicable way of preventing the
commission of the offence;

3. of being about to commit an offence, where he finds such a person in any highway, yard,
building or other place during the night;
4. of being a person for whom a warrant of arrest has been issued by a court;

5. of being a deserter from the Armed Forces;

6. of having been concerned in any act committed outside Ghana, which, if committed in Ghana,
would have been punishable as an offence, and for which he is, under any enactment, liable to be
arrested and detained in Ghana.

In the case of arrests by police officers on suspicion, the law only requires that the police
officer's grounds for suspecting the arrestee be reasonable. Unlike in the case of an arrest by a
private individual on suspicion, there is no requirement that the offence which the law
enforcement agent suspected to have been committed SHOULD HAVE IN FACT BEEN
COMMITTED.

Dallison vs Caffery:

This case provides the test for what is reasonable in the circumstance.

In that case, an amount of £173 was stolen from the office of a solicitor at Dunstable. A man
named Dallison was arrested and charged with the offence. At the Quarter Sessions, counsel for
the prosecution offered no evidence against the plaintiff, stating that it was a case of mistaken
identity.

Accordingly, the plaintiff was acquitted and discharged. The police officer in charge was
Caffery. The plaintiff sued Caffery for false imprisonment and malicious prosecution. The judge
dismissed the claim. He appealed. Lord Denning was satisfied that the defendant had reasonable
cause for suspecting that the plaintiff had committed the crime. He said the test for
reasonableness for the arrest is objective namely:

"Whether a reasonable man, assumed to know the law and possessed of the information which in
fact was possessed by the defendant would believe that there was reasonable and probable
cause."
If the statute creating the offence specifies where the arrestee is to be taken to or kept or who has
the power to effect the arrest, non-compliance with the statute renders the arrest unlawful.

If the statute says a person who is satisfied can arrest, the law requires objective not subjective
satisfaction. Therefore, the grounds of satisfaction can be reviewed by the Courts

CONSTITUTIONAL PROVISIONS

As indicated at the beginning of this chapter, article 14, 15, 19 and 21 of the Constitution also
provide rules for the tort of unlawful arrest.

ARTICLE 14: of the Constitution, provides as follows:: "

(1) Every person shall be entitled to his personal liberty and no person shall be deprived of his
personal liberty except in the following cases and in accordance with procedure permitted by
law-

(a. ) in execution of a sentence or order of a court in respect of a criminal offence of which he

has been convicted; or

(b. ) in execution of an order of a court punishing him for contempt of court; or

(c. ) for the purpose of bringing him before a court in execution of an order of a court; or

(d. ) in the case of a person suffering from an infectious or contagious disease, a person of
unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or
treatment or the protection of the community, or

(e. ) for the purpose of the education or welfare of a person who has not attained the age of
eighteen years; or
(f. ) for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting
the expulsion, extradition or other lawful removal of that person from Ghana or for the purpose
of restricting that person while he is being lawfully conveyed through Ghana in the course of his
extradition or removal from one country to another; or

(g. ) upon reasonable suspicion of his having committed or being about to commit a criminal
offence under the laws of Ghana..

(2) A person who is arrested, restricted or detained shall be informed immediately in a language
that he understands, of the reasons for his arrest, restriction or detention and of his right to a
lawyer of his choice.

Lewis vs Chief Constable of South Wales Constabulary:

In this case two people were arrested on suspicion of burglary. They were not informed of the
reasons at the point of arrest. They were taken to the police station. One was given the reasons 10
minutes later, the second was told 23 minutes later. The Court held that the arrests, though
initially unlawful were remedied later. So the unlawful arrest claim could not succeed.

Does this reasoning satisfy the requirement in Article 14(2)? Possibly.

(3) A person who is arrested, restricted or detained-

(1.) for the purpose of bringing him before a court in execution of an order of a court; or

(2. ) upon reasonable suspicion of his having committed or being about to commit a criminal
offence under the laws of Ghana, and who is not released shall be brought before a court within
48 hours after the arrest, restriction or detention.
(4) Where a person arrested, restricted or detained, under paragraph (a) or (b) of clause 3 of this
Article is not tried within a reasonable time, then, without prejudice to any further proceedings
that may be brought against him, he shall be released, either unconditionally or upon reasonable
conditions, including in particular, conditions reasonably necessary to ensure that he appears at a
later date for trial or for proceedings preliminary to trial.

(5) A person who is unlawfully arrested, restricted or detained by any other person shall be
entitled to compensation from that other person.

(6) Where a person is convicted and sentenced to a term of imprisonment for an offence, any
period he has spent in lawful custody in respect of that offence before the completion of his trial
shall be taken into account in imposing the term of imprisonment.

(7) Where a person who has served the whole or a part of his sentence is acquitted on appeal by a
court, other than the Supreme Court, the court may certify to the Supreme Court that the person
acquitted be paid compensation; and the Supreme Court may, upon examination of all the facts
and the certificate of the court concerned, award such compensation as it may think fit; or, where
the acquittal is by the Supreme Court, it may order compensation to be paid to the person
acquitted.

The Supreme Court has determined the factors that may be taken into account in determining the
compensation in the case of Dodzi Sabbah vs Attorney-General.

Wood C.J. held as follows:

The determinant factors must necessarily include:

1. the gravity of the offence with which this appellant was charged

2. the period of incarceration

3. the stigma associated with the offence charged

4. the seriousness of the injustice meted out to the applicant

5. coupled with the nature of the sentence imposed.

6. We may also take into account the specific pecuniary and proved losses suffered as a result of
the incarceration."

ARTICLE 15 prohibits, inter alia, torture, cruel and indecorous treatment of an arrestee.

ARTICLE 19: contains provisions on fair trial which if not complied with may create a cause of
action in unlawful arrest.

ARTICLE 21: especially clause 1(g), 2, 4 and 5 are also relevant for this tort.

ARTICLE 21

CLAUSE 1 (g): freedom of movement which means the right to move freely in Ghana, the right
to leave and to enter Ghana and immunity from expulsion from Ghana.

Clause (2):A restriction on a person's freedom of movement by his lawful detention shall not be
held to be inconsistent with or in contravention of this article.

CLAUSE (4): Nothing in, or done under the authority of, a law shall be held to be inconsistent
with, or in contravention of, this article to the extent that the law in question makes provision-

(a) for the imposition of restrictions by order of a court, that are required in the interest of
defence, public safety or public order, on the movement or residence within Ghana of any
person; or
(b) for the imposition of restrictions, by order of a court, on the movement or residence within
Ghana of any person either as a result of his having been found guilty of a criminal offence under
the laws of Ghana or for the purposes of ensuring that he appears before a court at a later date for
trial for a criminal offence or for proceedings relating to his extradition or lawful removal from
Ghana; or

(c) for the imposition of restrictions that are reasonably required in the interest of defence, public
safety, public health or the running of essential services, on the movement or residence within
Ghana ofany person or persons generally, or any class of persons; or

(d) for the imposition of restrictions on the freedom of entry into Ghana, or of movement in
Ghana, of a person who is not a citizen of Ghana; or

(e) that is reasonably required for the purpose of safeguarding the people of Ghana against the
teaching or encourages disrespect for the nationhood of Ghana, the national symbols and
emblems, or incites hatred against other members of the community except sofar as that
provision or, as the case may be, the thing done under the authority of that law is shown not to be
reasonably justifiable in terms of the spirit of this Constitution.

CLAUSE (5): Whenever a person, whose freedom of movement has been restricted by the order
of a court under paragraph (a) of clause (4) of this article, requests at any time article,requests
during the period of that restriction not earlier than 7 days after the order was made, or 3 months
after he last made such request, as the case may be, his case shall be reviewed by that court.

When we examine the common law rules, the relevant statutory and constitutional law principles
noted in this chapter, it is submitted that there is a close affinity through them.
CHAPTER 7

FALSE IMPRISONMENT

This tort seeks to protect a person's interest in freedom from physical restraint. It protects
freedom of movement) and therefore the right to move about freely and apparently also the
plaintiff's belief in this freedom.

This right is also protected by articles 14, 15, 21(1)(g) (2); (4); (5); and (6) of the Constitution.
As a trespass:

1. the act which causes the restraint must be direct and

2. Must be intentionally done by the defendant. Whether it can be negligently caused will be
dealt with later. Note that the Sayers case decided that the tort can only be committed by acting
intentionally to confine another, not negligently. Further,

3. the act must cause the confinement of the plaintiff to an area delimited by the defendant ie, the
defendant must confine the plaintiff within a particular space.

False imprisonment is founded on two ingredients:

1. imprisonment

2. absence of justification.
False" simply means erroneous, wrongful or unlawful and not untruthful. "Imprisonment" should
not bring a prison to mind.

The term is used loosely to denote a confinement to any place. Neither physical contact nor
anything resembling prison is necessary. Imprisonment has thus been said to be:

"the restraint of a man's liberty, whether it be in the open field, or in the stocks or cage. And, in
all these places, the party so restrained is said to be a prisoner, so long as he has not his liberty
freely to go at all times to all places.

Warner vs Riddiford:

In this case the defendant was a beer-house operator. He employed the plaintiff to carry on his
business at weekly wages determinable, under the agreement, on a month's notice. The defendant
gave the plaintiff a week's notice, checked the accounts, found there was a shortage and asked
the plaintiff to make up the difference. The plaintiff refused on the ground that he had not been
given the stipulated month's notice. The defendant brought in two police officers.

One of the officers, when the plaintiff who lived on the upstairs floor of the premises where he
sold the drinks tried to go upstairs, refused to allow him to do so.

Later, he was allowed to go accompanied. When he persisted in refusing to make up the

difference, he was taken into custody and charged with embezzlement. He was discharged.

The plaintiff then brought the action for false imprisonment. The judge, in his direction to the
jury, told them that they had to consider three questions:

1. whether there was any imprisonment?

2. by whom?; and
3. any legal justification for it?

On (1) he told them: "to constitute an imprisonment, it was not necessary that the person should
be locked up within four walls, but that, if he was restrained in his freedom of action by another.
Also that it was an act of imprisonment, and that the way in which the plaintiff had been
constrained in his own house and the restraint put upon his person by refusing him permission to
leave the room and go upstairs in his own house, was in itself an imprisonment.

On appeal, this direction was held to be a correct statement of the law. But the restraint in order
to amount to imprisonment, must be total.

In other words, the person must be confined in all directions. If it is only partial, leaving a
reasonable means of escape, then no imprisonment has occurred.

Bird vs Jones.

In that case, the defendant blocked one side of the Hammersmith Bridge to form a grandstand for
a boat race, thus preventing the plaintiff's passage. The plaintiff refused to cross by the opposite
path. It was held that there was no false imprisonment as he had reasonable means of leaving the
place.

The plaintiff was not restrained in every direction; therefore the restraint was not total.

Wright vs Wilson:

In this case, Albert's chamber adjoins to Ben's chamber and has a door that opens into it by
which there is a passage to go out. Albert has another door which Cate stops, so that Albert
cannot go out.

HELD:
It was held that there was no imprisonment, because Albert may go out by the door in Ben's
chamber.

He will be a trespasser, but can sue Cate in an action on the case. C.J. Holt stated that an action
in false imprisonment will fail when a man has two doors through which he can go out and one is
blocked, leaving the other free, though the second one, he can go through only as a trespasser.
But an escape route which exposes Albert to danger is unreasonable and amounts to
imprisonment. This decision raises the following question:

What do we mean by the means of escape being reasonable? Let us look at a few examples:

1. Albert is in a pool naked. Ben steals his clothes. Is it false imprisonment, if Albert is thereby
compelled to remain in the pool? Or, is it reasonable that he can come out of the water naked?

2. You turn a key on someone in a room on the ground floor with windows.

3. Same facts as in (2) except that the room is at the top of a skyscraper with windows open.

4. Albert parks his car in a parking lot blocking Ben, who then misses an important business
meeting.

5. Albert drains petrol from Ben's car to prevent Ben from driving away.

Can a person who is refused a passport so that he cannot travel outside the country sue for false
imprisonment? Is he imprisoned at all? Merely to fail to facilitate the departure of a person from
one's premises does not amount to false imprisonment.
Herd vs Weardale Steel:

a miner went down into the defendant's coal mine on the agreement that he would work for a
fixed time and, at the expiration of that time, he would be conveyed to the surface by means of
machinery supplied by the employers.

He stopped work earlier in breach of his contract and demanded to be conveyed to the surface at
once. The employers refused and he remained in the mine till the agreed closing time.

In an action for false imprisonment, it was held that he had no cause of action because the miner
had no right to use the machinery whenever he wants. Therefore, for the period he remained in
the mine till the end of his regular shift, he had not, in law, been imprisoned.

So if Albert enters a train or a bus, the doors are locked and it stops only at certain points, if it
stops for some reason in between, Albert cannot demand to be allowed to go out there. If he
demands and is refused, this is no false imprisonment.

Robinson vs Balmain New Ferry Ltd:

the defendants-respondents carry on and operate the business of a harbour steam ferry between
Sydney and Balmain.

They had a wharf on the Sydney side of the ferry and you had to enter by a turnstile and go out
by another if you want. The appellant entered the wharf intending to cross to Balmain by one of
the steamers. Discovering that the next steamer would come in twenty minutes time, he decided
to leave but refused to pay the toll at the exit.

After some struggle, he succeeded in leaving. He brought an action for false imprisonment;
judgment was given against the company. It appealed and succeeded. On further appeal by the
appellant to the Privy Council, it was held that the toll imposed was reasonable, so no liability in
false imprisonment. It was held further that failure to provide gratuitous exit from the premises to
the appellant did not constitute false imprisonment.
From these cases, we can conclude that a passenger on a public transport, train, plane etc. cannot
demand to get off at an unscheduled point.

However, Robinson's case must not be treated as implying that you can detain people to enforce
a contract.

Sunbolf vs Alford :

the defendant innkeeper detained the plaintiff-customer for not paying his bill. It was held to be
false imprisonment.

Hospitals which detain patients for non-payment of their bills must be ware!

Imprisonment can thus take place anywhere in the plaintiff's own house, in the mine, on a bridge
or the highway. Wherever the place, the requirements are that the plaintiff should be totally
restrained in a place whose boundaries are delimited by the defendant.

Imprisonment can result from words or acts or both. So consider the following two situations:

(1.) Alice visits the boyfriend Ben at his apartment; then informs Ben that their affair is over.
Ben starts screaming and threatening to create a scene, if Alice leaves the apartment. This goes
on for ten minutes. Imprisonment? No.

(2.) Albert points a loaded gun at Ben and says "Don't move." And Ben stands glued to the
ground: False imprisonment? Possibly.

MUST THE PLAINTIFF BE AWARE OF THE RESTRAINT TO SUCCEED??

Two cases generally considered as stating two different positions on this point are discussed
here.
In Herring vs Boye:

the plaintiff, suing by his next friend, was an infant of ten years. He was in the defendant's
school. When the school vacated, his mother came to take him home for a few days but the
defendant refused saying he would not let him go until some money owed to the school had been
paid and won't let the mother see the child either. After persistent demand and refusal, a writ of
habeas corpus was taken out by the plaintiff and the mother.

Then the defendant allowed the plaintiff to be taken home by his mother. No proof was given
that the plaintiff knew earlier of the denial to his mother, neither was there any evidence of actual
restraint on him.

He also appeared to have enjoyed his stay in the school. It was held that there was no false
imprisonment of the plaintiff because the child did not know he was restrained. So this case
decides that consciousness is a relevant consideration. No consciousness, no imprisonment.

Meering vs Graham-White Aviation Co.:

Lord Atkin took the view that consciousness of the confinement was irrelevant to the question of
false imprisonment.

In Onogen vs Leventis:

the plaintiff was a store-keeper of the defendant company, in charge of the company's drinkables
and provisions store at Market Circle in Takoradi. It appeared that the company lost 70 cases of
Heineken beer and the general agent of the company informed the police.

The plaintiff was arrested and detained for 26 hours before being granted bail. Subsequently, he
was prosecuted and was acquitted.

He then brought an action for

1. false imprisonment,

2. wrongful dismissal and

3. malicious prosecution.

Adumua-Bossman J quoted Salmond on Torts, with approval as follows:

"An action for false imprisonment will lie against any person who authorises or directs the
unlawful arrest or detention of the plaintiff by an officer of the law.

He makes that officer of the law his agent and is responsible for any arrest or detention so
procured or authorised, as if it were his act. It is necessary, however, even in such a case to prove
actual direction or authorisation, such as is sufficient to make the officer of the law the agent of
the defendant. Mere information given to such an officer of the law, on which he acts at his own
discretion, is no ground of liability. So no false imprisonment."

But in Austin vs Dowling:

the plaintiff was a lodger in the defendant's premises. It appeared he owed some money, was
sued and paid. But he still owed a small sum. One day, when he returned to his lodgings, he
discovered that the drawers in his bed-room had been emptied and his private cupboards and
their contents removed.

He went to report at the Police Station and was accompanied back at his request by a police
officer. At the house, the plaintiff demanded from the defendant's wife his property and was
refused.

The plaintiff went upstairs, broke the door of a bed-room in the defendant's house occupied by
another lodger with his shoulders and a screw-driver.

When he returned downstairs, the defendant's wife handed the plaintiff over to the police for the
felony of breaking open the door. He was taken into custody and walked to the police station.

After hearing the circumstances of the case, the inspector in charge declined to detain the
plaintiff, unless the defendant signed the charge sheet. The defendant signed the charge sheet.
The plaintiff was charged with "feloniously breaking and entering into a bed-room" in the
defendant's house. The plaintiff was detained for 17 and half hours before being brought before
magistrates, where he was discharged. He brought action for false imprisonment and malicious
prosecution and was non-suited.

He appealed. Willes J, Keating J, and Montague Smith J said there was evidence of false
imprisonment because, signing the charge sheet after police say: no detention unless so signed,
amounts to authorising the police to imprison the plaintiff - it was the doing of an act which
caused the plaintiff to be kept in custody.

This case must be distinguished from a situation where a person offers the police mere
assistance to do their work.

Nkrumah vs Foli:

it was held that to accompany the police to point out the plaintiff to them is not instigation.

Amadjei vs Opoku Ware:

two policemen on patrol duty were told by the respondents that A,B,C,D and E, the appellants
were holding an unlawful meeting and should be arrested. When the police were interviewing the
appellant, the respondents came and ordered their arrest, whereupon one policeman said "You
are arrested." The plaintiff brought the action for false imprisonment. The High Court dismissed
the action. Upon appeal, it was held that the facts disclosed authorisation by the respondents of
the appellants' arrest and unlawful detention. So it amounts to false imprisonment and the appeal
allowed.
So where a complainant gives information to a police officer, and the officer acts according to
his own judgment and makes an arrest, the complainant incurs no liability for false
imprisonment. But where the complainant does not merely give information but

(1.) directs the officer to effect the arrest, the officer in that case is considered as the servant of
the complainant and the complainant will be liable for false imprisonment as held in Narwu vs
Armah."

(2.) How about when the complainant uses subtlety and

(3) intimidation to overcome police hesitation example, My uncle the IGP, will hear about
this!!! This will amount to authorisation for the arrest.

The situation will not be different where the information given by a person to the police is to his
knowledge false.

Musa vs Limo- Wulana:

This case shows where the information given by a person to the police is to his knowledge false,
an action in false imprisonment will lie: -

Is the law looking for

1. intention to imprison or

2. intention to do the act leading to imprisonment?

In Warner vs Riddiford:
it was held that the relevant consideration was intention to do the act which causes or results in
the imprisonment.

Can false imprisonment be committed negligently? Sayer's case suggests only intentionally.

MALICIOUS PROSECUTION

The tort seeks to protect two conflicting interests:

1. On one hand, social policy demands that criminals are prosecuted, and again that individuals
be free to help in this exercise.

2.On the other hand, it is equally important that the individual's freedom from unnecessary arrest
and prosecution should be protected.

In false imprisonment, the assumption is that the defendant departed from due process.

In malicious prosecution, it is assumed the process is regular but has been perverted.

The action for malicious prosecution, usually follows an unsuccessful criminal prosecution of a
person.

For purposes of limitation, time does not start to run in an action for malicious prosecution until
the plaintiff's acquittal.
Musa vs Limo-Wulana:

In that case, it was held that to succeed, in malicious prosecution, the plaintiff must prove 5
elements namely:

1. that the defendant initiated a criminal prosecution against him;

2. that the criminal proceedings terminated in the plaintiff's favour;

3. that the defendant undertook or instigated or procured the prosecution with no reasonable or
probable cause;

4. that the defendant acted maliciously; and

5. that the plaintiff suffered damage as a result of the prosecution.

(1) PROOF OF PROSECUTION BY THE DEFENDANT

The plaintiff must prove that he has been prosecuted by the defendant. This means proof either
that:

(1. ) the defendant himself conducted the prosecution; or

(2. ) he procured, instigated, directed, ordered or was actively instrumental in the prosecution
being set in motion.
Soadwah vs Obeng:

The appellant had, in a letter to the police, complained that the respondents had broken into his
room and stolen his properties while he was away from home. He, in writing the letter, supported
by affidavit, had relied on information given him by his son and uncle. He called for immediate
investigation and police action. The police conducted their own investigation.

The investigation officer advised against prosecution, but his superior, the Assistant
Commissioner of Police of Sunyani, thought otherwise and ordered a prosecution. The
prosecution of the respondents on stealing from the appellant's home ended in their acquittal and
discharge. Thereupon, the respondents brought an action in the High Court Sunyani against the
appellant for malicious prosecution.

The trial judge, concluding that the appellant "was instrumental in putting the law in force and
instigated the prosecution," found for the respondents. The appellant appealed. It was held,
allowing the appeal, that the respondent had failed to prove that it was the appellant, and not the
police, who initiated the prosecution.

The requirement is therefore that the plaintiff must establish that the defendant actively
instigated the prosecution or was instrumental in getting the proceedings going.

If the defendant merely reported the matter to the police who do their own investigations before
charging the plaintiff, the defendant is not liable as in Soadwah vs Obeng.

Danby vs Beardsley:

The plaintiff had been in the service of the defendant (doctor) as groom and gardener and left.
While gardener, he lent to his successor two pairs of horse-clipping machines to clip the horses.
When he resigned, he took them away. The defendant who had seen the machines in his stables
thought they were his. When he did not see them again, he asked his groom about them and was
told the plaintiff had taken them away, and that they belonged to the plaintiff Nevertheless, the
defendant sent for the police. He told them he had lost two pairs of clippers and that they had last
been seen with the plaintiff. The police made further inquiry and also searched the plaintiff and
found two pairs of clippers similar to the ones supposedly lost. Without further communication
with the defendant, the police arrested the plaintiff and charged him with the offence. The
plaintiff' was acquitted in an action for false imprisonment and malicious prosecution by the
plaintiff, it was held that malicious prosecution must fail because there was no evidence that the
defendant had been instrumental in putting the criminal law into force and therefore was not the
prosecutor.

We may also recall that in Onogen vs Leventis:

the employers were held not to have actively instigated the arrest and therefore were not liable
for malicious prosecution.

If you knowingly make a false complaint which results in the person being prosecuted, the first
requirement is satisfied.

Musa vs Limo-Wulana:

The appellant made a complaint against the defendants that they had been unlawfully fishing in
the village dam, the only source of drinking water for the village.

They were acquitted and discharged and brought action. No evidence was led by the defendants
on whether they suffered damage.

The Court of Appeal restated the 5 requirements which a plaintiff for malicious prosecution must
prove to succeed. On damage, the Court of Appeal quoted Saville vs Roberts" with approval.

But to go with the police to point a person out is not to prosecute him as held in Nkrumah vs
Foli.
But where the informant lies to obtain the prosecution, there is malicious prosecution.

In Martin vs Watson:

the House of Lords held that an informant who falsely and maliciously gives information to the
police can be said to have initiated prosecution for purposes of malicious prosecution.

The prosecution which is the basis of a malicious prosecution action must be a criminal
prosecution. But note the exception where bankruptcy and winding up proceedings which are
civil actions were held sufficient to support an action in malicious prosecution.

Quartz Hill Mining Co. vs Eyre:

In this case, the defendant, a shareholder of the plaintiff's company, instructed brokers to sell his
shares, and signed a transfer. Later, the brokers told him they were finding it difficult to sell the
shares at they did not transfer them back to the defendant. After waiting for ten or eleven days,
he brought a petition for the winding up of the company on the grounds that there was fraud in
the formation of the company and also that it could not carry on business for profit. At that time,
the company had property of a large amount and its debts were insignificant.

The defendant had also ceased to be a shareholder, his shares having been sold by the brokers
unknown to him. When he discovered his shares had been sold, he gave notice to withdraw the
petition which was ultimately dismissed without costs. The company sued him for falsely and
maliciously and without reasonable and probable cause bringing the petition.

At the trial, no proof of damage to the company was given beyond the costs of defending itself
against the petition and upon this ground the company's action was dismissed.

On appeal, it was held that malicious prosecution would lie because the petition was injurious to
the credit of the company. There was want of reasonable and probable cause since it was a going
concern contrary to the petitioner's claims; so the jury ought to have been asked whether the
petitioner was actuated by malice. Here an action which is normally civil was allowed to support
a suit in malicious prosecution because apparently its effect on the company was similar to that
of a criminal prosecution on a human being.
2. TERMINATION IN THE PLAINTIFF'S FAVOUR

The second condition to be proved by the plaintiff is that the criminal proceedings ended in his
favour. This means that the plaintiff must be acquitted and discharged of the offence. This is
because the tort relies on termination, in the plaintiff's favour, of the criminal proceedings. For
this reason, it is irrelevant whether the conviction is one against which there is no right of appeal
or one which has been obtained by the fraud of the prosecutor.

Basé-Bé vs Mathews.

Here the plaintiff alleged that the defendant falsely and maliciously and without reasonable and
probable cause, initiated prosecution against the plaintiff before a justice of peace, where he was
charged with assaulting and beating her and was convicted, fined and costs were awarded against
him, there being no appeal from the said conviction. It was held that the rule that, for a plaintiff
to succeed in an action in malicious prosecution, he must show that the criminal prosecution
terminated in his favour applies even to convictions for which there was no appeal.

Termination in his favour also means that the plaintiff was not convicted of the particular offence
preferred against him. If convicted of a lesser offence, proceedings have terminated in his favour,
e.g. manslaughter for murder or dishonestly receiving for stealing.

Boaler vs Holder:

In that case, the plaintiff was indicted under section 4 of the Newspaper Libel Act for publishing
a libel knowing it to be false. He was committed for trial. At the trial, the jury found him guilty
of publishing the libel, but found that he did not know it was false. This, in fact, amounted to a
verdict of not guilty of the original charge. But the plaintiff was sentenced to a term of
imprisonment. On his release, he brought an action for malicious prosecution against the
defendant.
The judge withdrew the case from the jury, when it was shown that the plaintiff had been
convicted. On appeal, Day J decided that there should be a new trial, because the plaintiff who
had been charged with the graver offence under section 4 had been convicted of the lesser
offence under section 5.

This conviction was no bar to an action for malicious prosecution under section 4. Wills J
concurred. He pointed out that the plaintiff had not been convicted of the offence for which he
was put on his trial. He noted that to put a man on his trial for a much graver offence than you
have any chance of convicting him is a legal wrong. In his view therefore the plaintiff had made
out that he had been put on his trial wantonly and that there was an absence of reasonable and
probable cause for the actual charge brought against him.

But where a plaintiff is bound to be of good behaviour, that is fatal to malicious prosecution.
Where he or she is convicted in a court of first instance but acquitted on appeal, that is
termination in his favour.

An entry of nolle prosequi by the Attorney-General, as he may be entitled to do under article 88

of the Constitution, 1992, or, by an officer lawfully authorised by him is termination in the
plaintiff's favour, although nolle prosequi carries with it liberty to prosecute on the same facts
and charge later.

The law was settled in 1963, when the Supreme Court decided the issue in:

Nana Akuamoah Boateng vs Yeboah:

In that case, the appellants had been successfully sued in the High Court, Accra. They appealed
to the Supreme Court on two main grounds:

(1) They had reasonable and probable cause for the prosecution, and

(2) they had acted without malice.

The facts were that the respondent was the Omanhene of Kwahu. He lodged a complaint against
the appellants that they had paid customary dues to the Adontenhene of Abetifi without his
consent.

An arbitration presided over by the Krontihene was held. The arbitration found the appellants
wrong, and they apologised to the Omanhene. They paid pacification fees in accordance with
custom and also provided some drinks (schnapps). Then the appellants complained to the police
that the respondent had extorted money from them. The police refused to take any action, as they
felt that the complaint disclosed nothing criminal.

The appellants instituted a private prosecution in the district magistrate's court. That court found
that a prima facie case had been made out and committed the respondent to stand trial.

The Attorney-General subsequently entered a nolle prosequi. After that, the respondent instituted
this action against which appellants appealed. The appeal was dismissed. The Court of Appeal
was of the view that, having regard to the circumstances, malicious prosecution had been made
out. The appellants knew that all that had happened was the application of customary law, so the
respondent had not extorted the money.

Even though the prosecution was after counsel's advice and was in fact conducted by counsel, yet
the fact that counsel was not told of the arbitration, the fact that they were found guilty by the
said arbitration and the moneys paid were for pacification, rendered the involvement of counsel
worthless.

So, on the evidence, it was reasonable to conclude that there was want of reasonable and
probable cause from which, in the circumstances an inference of malice could be made. On
damage, the Court of Appeal held that the prosecution damaged the fame and reputation of the
respondent.

3. ABSENCE OF REASONABLE AND PROBABLE CAUSE.

The existence of reasonable and probable cause is a question of law.

The plaintiff must prove that the defendant prosecuted him without reasonable and probable
cause. The plaintiff may establish this in one of two ways. By showing that:
1. the prosecutor (whether the defendant himself or herself or a surrogate in law) had no honest
belief in the plaintiff's probable guilt when he prosecuted him; or

2. the prosecutor had such belief but that the facts would not lead an ordinarily prudent and
cautious person to that conclusion, that is the plaintiff was rash in his judgment.

Reasonable and probable cause was explained in:

Hicks vs Faulkner:

The defendant was the landlord of a house in the Belgrave Road, St. John's Wood. The father of
the plaintiff was tenant of that house.

In February 1879, the defendant brought an action in the county court against the plaintiff's
father for alleged arrears of rent. The father's defence was that he had given up the premises
before the alleged rent accrued.

To support this claim, the father called the plaintiff who swore that he had, at his father's request,
given the key to the defendant. After that action, the defendant indicted the plaintiff at the
Central Criminal Court for perjury.

The plaintiff was acquitted. He then brought a malicious prosecution action against the
defendant. Judgment was given in favour of the defendant i.e. the plaintiff lost the action.
Subsequently the plaintiff obtained a rule nisi for a new trial (i.e. the plaintiff appealed) on two
grounds, namely that:

1.the judge misdirected the jury; and

2. The verdict was against the weight of evidence.

Now the disputed direction was as follows:

"The judge told the jury alternatively that if they could not arrive at a conclusion as to which of
the parties was speaking the truth, the plaintiff had not made out his case and defendant was
entitled to judgment; if they thought that the plaintiff did give up the key but the defendant,
owing to a defective memory, had forgotten the occurrence and went on with the prosecution
honestly believing that the plaintiff had sworn falsely and corruptly, then the jury would not be
justified in saying that the defendant maliciously and without reasonable and probable cause
prosecuted plaintiff, and defendant would be entitled to judgment."

The rule was discharged on the grounds that this direction was right (i.e. the appeal failed).
Hawkins J in this case provides us with a definition of reasonable and probable cause which has
been approved and used by many courts in the common law world ad infinitum:

"An honest belief in the guilt of the accused based upon full conviction, founded upon
reasonable grounds, of the existence of a state of circumstances, which, assuming them to be
true, would reasonably lead any ordinarily prudent and cautious (i.e. one not RASH) man, placed
the position of the accuser, to the conclusion that the person charged was probably guilty of the
crime imputed.

There must be:

1. first an honest belief of the accuser in the guilt of the accused;

2. Secondly, such belief must be based on an honest conviction of the existence of the
circumstances which led the accuser to that conclusion;

3. Thirdly, such secondly-mentioned belief must be based upon reasonable grounds; by this I
mean such grounds as would lead any fairly cautious man in the defendant's situation so to
believe;

4. Fourthly, the circumstances so believed and relied on by the accuser must be such as amount
to reasonable ground for the belief in the guilt of the accused...." Turning to the facts of the case
before the court, he posed the following rhetorical question:
"If a man has never had reason to doubt, but on the contrary, has ever had reason to trust the
general accuracy of his memory, and that memory presents to him a vivid apparent recollection
that a particular offence took place in his presence within a recent period of time, is it not
reasonable to believe in the existence of it?" NB: This does not mean that the accuser is always
justified in relying on his memory or the trustworthy statement of an informant.

At all times, the question will be whether it was reasonable to do so. So it will be unreasonable
to rely on a memory known to be unreliable or an untrustworthy informant. From Hawkins J
definition, it is clear that reasonable and probable cause depends on or has two elements namely,

(1) facts (objective aspect of the test); and

(2) the genuineness of the defendant's belief based on them (the subjective aspect). In the case of
(1), the relevant facts are those known to the defendant at the time the prosecution was initiated
i.e. he cannot avoid liability by pointing to facts showing that the plaintiff was guilty, if these
were not known to him until later:

In the case of (2), the question is: Did the defendant honestly believe in the plaintiff's guilt or
not?; not, did he honestly believe that there was reasonable and probable cause. This is because
the existence of reasonable and probable cause is a question of law for the judge, as was held in
Glinski vs Mclver.

The defendant's knowledge of facts negativing the plaintiff's guilt is relevant to the honesty of
his belief. Another relevant consideration is taking legal advice.

These last two cases decided that provided counsel is fully briefed and apprised of the full facts,
the interposition of legal advice before the prosecution will absolve the defendant of liability. In
other words, the advice will meet the reasonable and probable test.
Conviction at first instance may not be conclusive evidence of reasonable and probable cause,
where the conviction is quashed on appeal have been procured by perjured evidence. - for the
conviction may

Hawkin's definition was adopted by the House of Lords in Herniman vs Smith and also by the
Ghana Court of Appeal in Yeboah vs Boateng.

In Herniman vs Smith:

the plaintiff, together with one Richard, was charged with conspiracy to defraud the defendant
and with obtaining money from him by false pretences on four different occasions.

They were convicted at first instance trial and sentenced each to twelve months' imprisonment.
The conviction and sentence were set aside by the Court of Criminal Appeal.

The court felt that there was not sufficient evidence in the case of the plaintiff to go to the jury
and that, in the circumstances, it would be safer to quash the conviction of Richard as well.
Thereafter, the plaintiff brought an action for malicious prosecution against the defendant. The
case was tried by Talbot J and a common jury and judgment was entered for the defendant. The
judge had left the following three questions to the jury:

(1) Has it been proved that the defendant commenced and proceeded with the prosecution
without any honest belief that the plaintiff was guilty of fraud?

(2) Has it been proved that the defendant failed or neglected to take reasonable care to inform
himself of the true facts before commencing or proceeding with the prosecution?

(3) Has it been proved that the defendant, in commencing or proceeding with the prosecution,
was actuated by motives other than a desire to bring to justice one whom he honestly believed to
be guilty?

The jury answered all three questions in the affirmative. The judge held that there was no
reasonable and probable cause for the prosecution and entered judgment for the plaintiff. The
defendant appealed and the Court of Appeal set aside the judgment of the court of first instance.
The Court of Appeal was of the view that the evidence did not justify the learned judge leaving
the first two questions to the jury. In their opinion, there was no want of reasonable and probable
cause.

The plaintiff appealed to the House of Lords. The House of Lords, per Lord Atkin, Hawkins J's
definition of reasonable and probable cause in Hicks vs Faulkner . But Lord Atkin disagreed
with Hawkins J's statement in the above case that the reasonableness of the accuser's belief in the
existence of the facts on which he acted was a question of fact for the jury.

Lord Atkin also felt that the additional question of whether the facts so believed amount to
reasonable cause for believing the accused to be guilty was also one for the judge, i.e. it was a
question of law. Given that view, he agreed with the Court of Appeal that there was no want of
reasonable and probable cause for the prosecution. He continued thus:

It was further said that he should have asked for a further explanation from Herniman. No doubt
circumstances may exist in which it is right before charging a man with misconduct to ask him
for an explanation.

But certainly there can be no general rule laid down, and where a man is satisfied, or has
apparently sufficient evidence, that in fact he has been cheated, there is no obligation to call on
the cheat and ask for an explanation which may only have the effect of causing material evidence
to disappear or be manufactured.

It is not required of any prosecutor that he must have tested every possible relevant fact before he
takes his action. His duty is not to ascertain whether there is a defence, but whether there is
reasonable and probable cause for a prosecution. ..."

The requirement of reasonable and probable cause was further explained in Glinski vs Mclver,

In this case on 13 September 1955, defendant, a Criminal Investigation Department detective

sergeant, arrested the plaintiff, believing him to be involved in a series of frauds on textile
manufacturing houses and going under a different name (Davies). The plaintiff was not picked
out at an identification parade as the man known as Davies and was subsequently released.
On September 21, 1955 a solicitor working with the legal department of the New Scotland Yard
delivered to counsel a brief for the prosecution of certain persons and also to advise on "Glinski
aspect of the matter." On 22 September, the plaintiff gave evidence for the defence at a criminal
trial. The police believed he had, at that trial, perjured himself.

The solicitor after consultation with counsel (the defendant was present), issued a warrant for the
arrest of the plaintiff and charged him with conspiracy to defraud. The plaintiff alleged that the
defendant told him he was being tried for giving evidence at the other trial. He was tried on the
conspiracy charge and acquitted. He sued the defendant for damages for false imprisonment and
malicious prosecution. The judge put the following questions to the jury on the malicious
prosecution action:

(a) Has it been proved that the police officer, in starting the prosecution of the appellant for
conspiracy to defraud was actuated by malice, that is, any motive or motives other than a desire
to bring the appellant to justice? Yes.

(b) Did the police officer honestly believe on the relevant date (29 September) that

the appellant was guilty of the offence of conspiracy to defraud? No. The judge decided there
was no reasonable and probable cause for the prosecution. The - defendant appealed to the Court
of Appeal which allowed the appeal. The plaintiff then appealed to the House of Lords. It was
held, dismissing the appeal, that:

(1) The second question should not have been left to the jury because, though it is the law that
malice can, in appropriate cases, be inferred from an absence of reasonable and probable cause
for prosecution, it is also the law that want of reasonable and probable cause should be
established by itself and should not be inferred from the existence of malice. Per Viscount
Simonds:

"A prosecutor who relies on competent legal advice cannot be said to lack reasonable and
probable cause for a prosecution just as a prosecutor is justified in acting on information about
facts given him by a reliable witness."
Lord Denning thought that the word "guilty" in Hawkin J's definition could be misleading. All
that a prosecutor must satisfy himself on is whether there is a proper case to lay before a court.
He is concerned to bring every man who should be put before court, but he is not concerned to
convict him.

4. MALICE:

The plaintiff must prove that the defendant was actuated by malice in prosecuting him. Malice
covers not only spite and ill-will but also any motive other than a desire to bring a criminal to
justice. According to Lord Devlin in Glinski vs Mclver, malice relates to the prosecutor's motive.
This means that the prosecution must have been with ill-will or spite. Prosecution of the plaintiff
on any motive other than bringing him to justice is malice.

Thus to succeed in an action for malicious prosecution, as Weir notes" the plaintiff must show
that the defendant was both a knave and a fool. The performance of a duty required by law
cannot evidence malice - Abbots case. See Lord Devlin in Glinski v Mclver where the defendant
prosecutes with two motives, i.e. one genuine, one malicious; the court has to determine which
motive predominated in the making of the decision to prosecute in order to decide whether an
action in malicious prosecution will lie. Note that malice can be inferred from the absence of
reasonable and probable cause but not vice versa - Glinski vs Mclver.

5. DAMAGE

Being an action on the case, the plaintiff must prove damage as a result of the prosecution to
succeed. Chief Justice Holt laid down the heads of damage recognised under this tort in the case
of :

Saville vs Roberts.:

Here the plaintiff alleged that the defendant maliciously and wickedly, intending to oppress the
plaintiff, caused him to be maliciously indicted of a riot. And that he was acquitted. He alleged
injury was caused to his name and he was put to expenses in defending himself.
It was held that there are three types of damages, any one of which is sufficient to support the
action.

(1.) damage to his name, (that is, necessarily and naturally affects the fair fame of the person) if
he is accused of scandalous matter;

(2.) damage to his person where he could lose his life, or liberty (if he is, for example,
imprisoned); and

(3. damage to his property, if he is made to incur charges and expenses for his defence.

What amounts to damage on point 4 was explained in:

Wiffen vs Bailey:

In that case the plaintiff, as occupier, was asked to clean certain rooms in his house considered
dirty. When he failed to do this, Bailey, acting on the instructions of the defendant counsel,
preferred a complaint before the Romford Justices.

At the hearing, the justices dismissed the complaint and awarded the defendant costs. The
plaintiff in the trial had, in defending himself, incurred further costs. He brought the present
action for malicious prosecution against defendants.

At the hearing, the jury found that the defendants were actuated by malice in bringing the
complaint and the judge ruled that there was no reasonable and probable cause. The defendants
appealed.

It was held that the difference between solicitor and client costs and party and party costs was
not legal damage for purposes of an action in malicious prosecution. So the appeal was allowed.

The court felt that there was no damage within the heads of damage listed by Chief Justice Bolt
in Savillle vs Roberts ,support an action in malicious prosecution.
But in Berry vs B.T.C.:

the plaintiff pulled the communications cord, while travelling on a train between Brighton and
Lancing. He was charged with a breach of section 12 of the Regulation of Railways Act, 1865,
convicted and fined.

On appeal, her conviction was quashed and she was awarded fifteen guineas costs. She brought
an action for malicious prosecution claiming, inter alia, that, by reason of the charge, she had
been injured in her reputation and had been held up in ridicule and suffered pain of mind, and
had been put to expense in defending herself.

The defendants put up the defence that the statement of claim disclosed no damage of which the
plaintiff was entitled to complain at law and thus disclosed no cause of action. Diplock J. upheld
the defendant's contention and dismissed the claim with costs.

The plaintiff appealed on the ground that the judge misdirected himself both in substance and in
law.

It was held, allowing the appeal, that the expenses incurred by the plaintiff in the course of her
defence in the court of summary trial and before the recorder, over and above the sum of 15
guineas awarded her, were sufficient to support an action for malicious prosecution .

Thus, a distinction was drawn between the position in respect of criminal proceedings and civil
proceedings.

CHAPTER 9

THE RULE IN WILKINSON vs DOWNTON'

The rule created an action on the case for intentional infliction of physical harm by indirect
means.
Briefly put, it states that any act done wilfully, calculated to cause and actually causing physical
harm to another as held in Janvier vs Sweeney is an actionable wrong.

ELEMENTS

These are:

1. a deliberate or wilful act or misrepresentation;

2.calculated to cause harm to the plaintiff; and

3. actually causing harm to the plaintiff.

Wilkinson vs Downton.

In that case, the defendant in the execution of a practical joke, falsely told plaintiff that her
husband had asked him to tell her that he had been injured in an accident with both legs broken
and that she was to go at once in a cab to get him. She suffered nervous shock, vomiting and
other physical consequences. She spent a large sum on medical expenses as a result.

The consequences were not in any way the result of previous ill-health; for she was in ordinary
state of health and mind. On the facts, there was no precedent before 1875. The plaintiff could
not have brought an action for trespass, which lay only for the direct physical infliction of harm
or threat of it. In this case, the plaintiff had been physically injured.

But only as a result of her mental shock following upon her belief in the words spoken. She
could not have sued for this mental suffering in the tort of deceit because of the absence of fraud
and reliance. Here she was claiming for damages not for reliance but for her mere belief in the
truth of what the defendant said and the effect that belief had on her mind. It was held that an
action would lie to recover the expenses on medical treatment. per Wright J:

"The defendant has, as I assume for the moment, wilfully done an act calculated to cause
physical harm to the plaintiff i..e. to infringe her legal right to personal safety, and has thereby in
fact caused physical harm to her. That proposition, without more, appears to me to state a good
cause of action, there being no justification alleged for the act. This wilful injuria is in law
malicious, although no malicious purpose to cause the harm which was caused, nor any motive
of spite, is imputed to the defendant....

One question is whether the defendant's act was so plainly calculated to produce some effect of
the kind which was produced, that an intention to produce it ought to be imputed to the defendant
regard being had to the fact that the effect was produced on a person proved to be in an ordinary
state of health and mind. I think that it was. It is difficult to imagine that such a statement, made
suddenly and with apparent seriousness, could fail to produce grave effects under the
circumstances upon any but an exceptionally indifferent person, and therefore an intention to
produce such an effect must be imputed, and it is no answer in law to say that more harm was
done than anticipated, for that is commonly the case with most wrongs...." He continued with the
following example:

"... Suppose that a person is in a precarious and dangerous condition, and another person falsely
tells him that his physician has said that he has but a day to live. In such a case if death ensued
from the shock caused by the false statement, I cannot doubt that the case might be one of
criminal homicide; or that, if a serious aggravation of illness ensued, damages might be
recovered."

Janvier vs Sweeney:

In that case, the plaintiff' was a maidservant; the defendants were detectives. They wanted to
read certain letters of the plaintiff's mistress. They represented to her that she was suspected of
collaborating with the Germans and, if she did not bring out the letters they would report her
boy-friend to the authorities as a traitor and have her deported. The plaintiff fell ill, and had
nervous shock. The court held that the act of the defendant was wilful and aimed at causing harm
under the rule in Wilkinson vs Downton.
Burnett vs George:

The plaintiff was subjected to harassment by unwelcome phone calls. The rule in Wilkinson vs
Downton was thought to be applicable but the plaintiff failed because she could not prove any
damage, i.e. impairment to her health.

Khorasandjian vs Bush:

This was a case of harassment by phone calls. The plaintiff succeeded on the Wilkinson vs
Downton principles because of the risk that the cumulative effect of continued and unrestrained
phone calls would cause physical or psychiatric illness.

D vs National Society for the Prevention of Cruelty to Children:

Lord Denning was unwilling to extend the principle. The facts were that the defendants had
information that the plaintiff was maltreating her child. They sent an officer to investigate. The
information was false and the plaintiff was severely shocked by the experience. The issue was
whether the defendants were bound to disclose the identity of their informant; but disclosure here
depended on whether there was a claim against the defendants on the facts In the end, it was
decided that disclosure must be refused on public interest grounds and therefore there was no
claim against the defendants.

CHAPTER 10

INTENTIONAL INTERFERENCE WITH PROPERTY

TRESPASS TO LAND.
1. This is the name of that species of wrongs redressible at common law by the old writ of
trespass which deals with unjustifiable interference with land in the possession of another.

In Blackstone's Commentaries, ' we find the following description of the tort: "

Every unwarrantable entry on another's soil, the law entitles a trespass by breaking the close; the
words of the writ of trespass commanding the defendant to show cause quare clausum querentis
fregit.

For every man's land is in the eye of the law, enclosed and set apart from his neighbour's. And
that, either by a visible and material fence, as one field is divided from another by a hedge; or, by
an ideal invisible boundary, existing only in the contemplation of the law, as when one man's
land adjoins to another's in the same field.

2. The tort protects the interest of the plaintiff in having his land free from physical intrusion. It
does not protect ownership as such, but possession; however, since often the owner is in
possession, the purpose of many suits in trespass is not only recovery of damages, but to settle
disputed rights over land.

Thus the tort serves three distinct purposes:

(1.) it provides damages in the law;

(2.) it settles title to land; and

(3.) it provides protection against abuse of powers by officialdom.

Possession here means power to use the land and to exclude others, that is occupation or
physical control of the land and power to exclude others.

3. The tort may thus be comprehensively defined as "intentionally or negligently entering or

remaining on or directly causing any physical matter to come into contact with land in the
possession of another.
That is to say, it is a trespass to enter or remain on the land of another intentionally or negligently
or to cause anything which has mass to come into direct contact with land in the possession of
another such as throwing stones on to the land.

ELEMENTS OF THIS TORT.

1. Direct Act

2. Physical Interference

3. Positive Act

4. Lack of consent

5. Voluntary Act

6. State of mind of the defendant. That is either negligently or intentionally.

DIRECT Act.

As a trespass, the act complained of must be direct, example:

1. crossing the land,

2. felling trees,
3. shooting over the land,

4. shooting into the land:

Pickering vs Rudd:

In that case the house of Rudd adjoined to the garden of Pickering. A Virginian Creeper which
grew in the garden of Pickering spread itself over the side of Rudd's house. Rudd, a barber,
decided to hang a sign board on that side of the house covered by the Virginian Creeper.

He managed by means of ropes and a scaffolding suspended over the garden, without touching
the surface of Pickering's premises, to cut away such a portion of the creeper as was sufficient to
admit his sign board and fixed the board to his own house, projecting some three to four inches
from the surface wall. Pickering sued Rudd for trespass, alleging both the cutting of the creeper
and the projection of the board into his air space.

Rudd justified the cutting by the fact of its projection into his premises. Pickering argued that
more harm had been done by Rudd than was necessary.

HELD:

It was held for Rudd. It was also held that it is a trespass to fire a gun into someone's land.

POSITIVE Act.

The tort depends on an affirmative/positive act. An omission to act leading to interference with
another's land, does not constitute a trespass, although it may provide the foundation for an
action in nuisance. As noted already, there must be an affirmative act by the defendant, example.

(1.) Albert fell a tree which falls into Ben's land is trespass;

(2) Albert discovers a tree on his land eaten by termites and ready to fall but does nothing about
it. On a windy day, the wind blows down the tree and it falls into Ben's land - no trespass. This is
because this was not the result of a positive act; neither does it flow from a direct or immediate
act.
PHYSICAL INTERFERENCE

There must be physical interference with the land.

Lavender vs Betts:

The defendant let to the plaintiff a flat consisting of the first and second floors of a dwelling-
house on a weekly tenancy basis. The plaintiff was making irregular payment of the rent. The
rent fell into arrears. After about two years, he served a notice to quit on the plaintiff who
ignored the notice and continued in possession. In February 1941, the defendant gave another
quit notice and from April refused to receive any rent in order to avoid any waiver of the quit
notice.

In November 1941, the defendant, without making an application as he was required by statute,
that is the Increase of Rent and Mortgage Interest Restrictions Acts, 1920 to 1933 to a court for
possession, because the plaintiff had become a statutory tenant, obtained admission to the flat on
the pretext of going to have a private discussion with the plaintiff's wife.

He gave instructions to men he had brought with him to remove all the doors and windows, with
the result that the plaintiff could live in it only at considerable discomfort and danger to his
health. The defendant had asked police to be present while the windows and doors were being
removed. The plaintiff sued for trespass and breach of the covenant for quiet enjoyment.

HELD:

It was held he must succeed and punitive damages would be awarded, per Lord Atkinson.

We may contrast this with the decision in the case of Perera vs Vandiyar.

In this case also, the plaintiff was a statutory tenant. To evict him, the landlord cut off the supply
of gas and electricity to the flat from his end of the premises and the tenant was forced to leave.
After a week, the supply was reconnected. The tenant then sued the landlord for breach of the
implied covenant for quiet enjoyment, and an injunction restraining the landlord from further
breaches of that covenant. He also added a claim for damages for eviction.

Judgment was given to the plaintiff and the landlord appealed on the question of damages.

Held:

allowing the appeal, that there was no tort of eviction. That any evidence of eviction on the facts
amounted only to a breach of contract. There was no interference with any part of the premises
and therefore no action in trespass.

LACK OF CONSENT

Where a person enters someone's land with the leave and licence of the landlord, then the
licensee becomes a trespasser only, if he refuses to leave after the licence has been revoked, that
is he overstays, provided he has been given reasonable time to leave the premises.

Cowell vs Rosehill Race Course Co. Ltd:

the plaintiff-appellant sued the defendant-respondent for damages for assault. The defendant
replied by saying that the plaintiff was trespassing on his land and what he alleged to be assault
was the reasonable force he had used to remove him from the land.

The plaintiff had paid four shillings to watch a race meeting being held by the defendants.

In the course of the meeting, the defendants asked the plaintiff to leave and, upon his refusal,
forcibly removed him from the course. The plaintiff alleged further that he had acquired a right
to be there which could not be prematurely revoked, and that the purported revocation was
ineffectual.

HELD:

It was held, that no action for assault would lie, reasonable force having been used for the
removal. This is because the plaintiff merely had a contractual right which was revocable and not
a proprietary interest in the land. If the right was unjustifiably interfered with, his proper course
would be an action for breach of contract.

So if you are on somebody's land with his permission, then you commit no trespass. You become
a trespasser if he revokes your licence and you still remain there after:

The defendant need not enter the land physically but by forcing objects to get onto the land of
another person , or by causing some foreign matter (anything with size or mass such as gas,
flame or beams from torchlight) to enter or come into physical contact with another's land, he
commits a trespass. - Recall Pickering vs Rudd.

THE Act MUST BE VOLUNTARY

The act complained of as the trespass must be the voluntary act of the defendant. Here it is
immaterial whether the person was aware he was trespassing. But, if through the action of
others, the defendant trespasses on the land of another person, it is those others who are liable to
plaintiff in trespass.

Smith vs Stone:

In that case, an action was brought against Stone for trespass to Smith's land. Stone pleaded that
he was forcibly carried onto Smith's land by others and did not go there on his own volition.

HELD:

it was held that the trespass was committed by those who carried Stone onto Smith's land and not
Stone.

He gave this example: If Albert drives my cattle onto Ben's land, Albert is the trespasser and not
I, the owner of the cattle.

But we must distinguish

1. involuntary acts of the kind described above from

2. an honest mistake. Mistake, as such, is no defence in trespass.

If you cut your neighbour's grass in the bona fide belief that you are cutting your own, it is
nonetheless trespass. Here it does not matter whether the mistake is one of law or fact, provided
the physical act of entry was voluntary. Example Albert strays off a footpath in the dark or Ben
delivers goods by mistake to the wrong address and places them on the land of the occupier
without his consent. Albert and Ben are liable in trespass to land.

In Basely vs Clarkson:

the defendant, in mowing grass on his own land, mistakenly, because the boundary between his
land and the plaintiff's was ill-defined, mowed the plaintiff's land and took the grass away.

He paid the plaintiff two shillings as sufficient amends when the action was instituted against
him.

HELD:

It was held that this was trespass because the act appeared voluntary and his intention and
knowledge are not traversable, that is they cannot be known.

STATE OF MIND OF DEFENDANT

As in all cases of trespass, the plaintiff must prove that the defendant acted either negligently or
intentionally and the tort action will succeed without the necessity of proving damage.

Who MAY SUE IN TRESPASS TO LAND

Trespass to land is actionable at the suit of the person in possession of the land at the time when
the trespass was committed.
Possession entails, inter alia, the occupation or physical control of the land. The degree of
physical control necessary to constitute possession may vary from case to case. The type of
conduct which indicates possession will vary with the type of land. In the case of a building, for
example, possession may be evidenced by occupation, or, if unoccupied, by having the key or
other means of entry:

Wuta Ofei vs Danquah:

In that case, the plaintiff acquired land which he did not immediately occupy but put pillars on.
The defendant built on it. It was held to be Trespass. The presence of the pillars was taken to
evidence possession.

Examples of acts amounting to possession:

1. Building a wall around it;

2. shooting over it;

3. taking grass from it;

4. cultivating or using it for pasture; and

5. having the key to the house.

Proof of ownership is prima facie proof of possession. So is occupation.

The rule as applied in Mensah vs Peniana is "Mellior est conditio posidentis ubi neuter ius habet"
- where both plaintiff and defendant are trespassers, the defendant will prevail.

In Graham vs Peat:

the plaintiff with possession under a void statute, was held to have possession to maintain action
for trespass. In trespass to land, averment of ownership amounts to averment of possession.
In Owiredu vs Mim Timber Co. Ltd.:

Ollennu J observed that it was a settled law that a person in possession of land, though himself a
trespasser, is entitled to maintain an action for trespass against any person who disturbs his said
possession except the person in whom title to the land is vested or anyone claiming in the right of
the true owner (that is agent or representative).

In Nunekpeku vs Ametepe:

the defendant pleaded that he was in possession. The Supreme Court therefore held that, in such
a case, the plaintiff had to prove that he was in possession at the time defendant entered upon the
land and dispossessed him of it.

Note, however, that the mere use of land, without exclusive rights of possession, (i.e. the power
to exclude others) cannot support a suit in trespass.

Hill vs Tupper:

an incorporated canal company, by deed, granted to the plaintiff the sole and exclusive right or
liberty of putting or using pleasure boats for hire on their canal. He brought an action against the
defendant for setting up a rival concern on the canal.

It was held that the grant did not create such an estate or interest in the plaintiff as to enable him
to maintain an action in his own name against a person who disturbed this right by putting and
using pleasure boats for hire on the canal.

Chief Baron Pollock was of the view that the grant merely operated as a licence or covenant on
the part of the grantors and is binding on them, as between themselves and the plaintiff. But it
gives him no right of action in his own name for any infringement of the supposed exclusive
right. If he has been disturbed, he must obtain permission from the canal company, to sue in their
name.

Mere occupation of premises is also not sufficient to support an action in trespass. Example, a
lecturer in his bungalow is a licensee and not a tenant and so cannot sue. Similarly, lodgers, such
as guests at a hotel and students in their dormitories, cannot sue in trespass because they do not
have sufficient possession of their rooms.

Allan vs Liverpool Overseers:

Again a servant who, for better execution of his duties, is given occupation of premises cannot
maintain an action for trespass to the premises, in his own name.

White vs Bayley.

In that case, the plaintiff was employed by the trustees of a society and paid £75 a year for
managing and living on their premises. The agreement was terminable after six months notice.
The trustees gave notice to quit and took possession of the premises. The plaintiff forcibly re-
entered. In an action by the plaintiff, he was non-suited and the trustees obtained injunction
compelling the plaintiff to give up possession. Byles J in his judgment stated:

"The first count of the declaration complains of trespass to land. That clearly does not lie unless
the plaintiff has some estate in the land, the plaintiff had the use but not the occupation of the
premises."

Willes J pointed out by way of explanation that if the employee were held to be vested with
occupancy, then the relationship of master and servant or principal and agent would not hold,
since if the servant or agent has been guilty of misconduct and his appointment is terminated, the
servant might set his master at defiance, and though the master be right in putting an end to the
master-servant relationship, the servant might insist upon holding on until the expiry of a notice
to quit.

SUBJECT MATTER OF TRESPASS

The subject matter of trespass is land and everything attached to it. The general rule is that he
who owns the land is presumed to own everything "up to the sky and down to the centre of the
earth." Cujus est solum ejus cst usque ad coelum et ad inferos - whosoever has the soil, also
owns everything up to the heavens above and down to the centre beneath earth.

Land, in its legal signification, has an indefinite extent upwards so that, by a conveyance of land,
all buildings, growing timber and water, erected and being there upon it likewise.

Any interference with the super-incumbent column of air may give rise to an action in trespass.
In law, land extends also downwards, so that whatever is in a direct line between the surface and
the centre of the earth belongs to the owner of the surface. The subject matter of this tort is thus
land and can be divided into:

1. surface soil,

2. sub-soil and

3. air space for purposes of the tort of trespass to land.

TRESPASS TO THE SURFACE

Any kind of direct interference with the surface is trespass, example, digging, standing on,
throwing stones, cutting timber etc. Improper use of a highway may also constitute trespass.

In Harrison vs Duke of Rutland:

the defendant owned the land adjoining the highway and the soil of the highway. The plaintiff
went on the highway expressly to interfere with his game by driving away the grouse to be shot.
He was asked to stop and, when he persisted, the servants of the defendant held him down until it
was no longer necessary. He brought an action for battery and false imprisonment. The defendant
counter-claimed that the plaintiff was a trespasser. Judgment was given to the plaintiff. On
appeal by both the plaintiff and the defendant, the plaintiff on the sufficiency of amount paid and
the defendants on the trespass issue, it was held that, since the plaintiff was on the highway for a
purpose other than passing or repassing on it, he was trespassing. So the judgment given in his
favour was set aside.

Hickman vs Maisey:

the plaintiff was the owner of land crossed by a highway. He let out part to a trainer of horses for
the training and trial of race horses. One could watch the training from the highway.

The defendant who owned a publication which gave account of the performance of race horses in
training used to stand on the highway to watch (spy on) the training. The trainer objected to this
and the plaintiff gave the defendant notice to discontinue his practice.

But he refused. On this occasion, he walked back and forth on a portion of the highway, the soil
of which was vested in the plaintiff, for about one and a half hours with glasses and took notes.
The plaintiff sued him for trespass and injunction to restrain him. Judgment was given to the
plaintiff. The defendant then brought application for a new trial. It was held that the defendant
had exceeded the ordinary and reasonable user of the highway and he was therefore guilty of
trespass. His application was therefore dismissed.

TRESPASS TO THE SUB-SOIL

There can be trespass to the sub-soil especially where mineral rights have been granted away: see
Cox vs Moulsey." So interference with the sub-soil is actionable as trespass at the suit of the
person in possession of the sub-soil.

TRESPASS TO AIRSPACE

The law grants a reasonable airspace above the land and it is a trespass to violate the allowed
airspace above the ground. See Lord Ellenborough's statement in Pickering vs Rudd, that it
would not be a trespass to pass over a person's land in a balloon.

But note that, in this case, it was also held that there was no trespass by the projection of the
board into the airspace above the plaintiff's land. But other cases show Lord Ellenborough may
have suffered from an over statement.
This statement is inconsistent with the one in Kelsen vs Imperial Tobacco Company Ltd.

The defendants had erected three metal signs advertising their wares. With the permission of the
plaintiff's landlords, they replaced them with a new sign which encroached slightly on the
airspace above the plaintiff's roof. The plaintiff knew all about this because he allowed the
defendants' maintenance men to go on his roof through the skylight which he otherwise never
used.

Five years later, after certain business difficulties with the defendants, the plaintiff demanded the
removal of the sign and when the defendants refused, he sued them for an injunction and
succeeded.

It was held that this was not a mere nuisance but a trespass and therefore injunction would lie.

The case resolved any doubts as to whether mere interference with the airspace without physical
contact could be trespass.

Kelsen's case has been distinguished from Pickering vs Rudd on the grounds that here the
interference was permanent.

Ellis vs Loftus Iron Co.:

the defendant's horse kicked and bit the plaintiff's mare through the fence and injured it. It was
held that this was trespass by the horse for which the defendant was liable. The horse's mouth
and feet protruded through the fence over the plaintiff's land, so it amounted to trespass, even
though the trespass was transient. Per Coleridge C.J.:

"It is clear that, in determining the question of trespass or no trespass, the court cannot measure
the amount of the alleged trespass; if the defendant place a part of his foot on the plaintiff's land
unlawfully, it is in law as much a trespass as if he had walked half a mile on it."

The trespass in this case was transient. See also Dougherty vs Stepp."

From these two cases (that is Kelsen's & Ellis), it is clear that to violate someone's airspace is
trespass.
However, by virtue of section 29 of the Ghana Civil Aviation Act, 2004 (Act 678), no action can
lie in respect of trespass or nuisance by reason of transient harmless incursion of a person's
airspace by an aircraft.

Another interesting question that relates to trespass to the airspace above someone's land as a
species of trespass to land was addressed in:

Bernstein of Leigh vs Skyviews General Ltd:

the question is: Are the landowner's rights in the air space above his property unlimited? The
answer in the above case was in the negative.

It was held that the interest of the owner of land in the airspace above his land is - restricted to
such height as is necessary for the ordinary use and enjoyment of his land and the structures on
it."

So how about cranes used by builders, which swing back and forth in the air over the land of
people in the area of the construction work? It is submitted that the answer to this question
should depend on the decision in the Bernstein case.

CHAPTER 11

TRESPASS TO CHATTELS.

The law provides a series of actions for the protection of chattels against intentional interference.
These actions can be fully understood in the context of the days when formalism and fiction
filled the law - through the forms of action. For as Salmond said, the "forms of action are dead
but their ghosts still haunt the precincts of the law."

As Dixon J said, in Penfolds Wines Proprietary Ltd vs Elliott in English, (as well as Ghanaian)
law, what amounts to an infringement upon the possessory and proprietary rights of the owner of
a chattel is a question still governed by categories of specific wrongs. These categories are:
1. trespass de bonis asportatis (trespass to chattels-goods, personality or moveable property);

2. conversion;

3. detinue (abolished in England since 1977)

4. replevin; and

5. special action on the case for the protection of reversionary interests.

Detinue was the oldest, being a retinue of the old writ of debt. The writ of trover which is an
antecedent of conversion is an action on the case and was developed as a result of the inadequacy
of debt or detinue action which could be side-stepped by wager (compurgation) of law.

These two writs (trespass and detinue) left gaps in the law. The action on the case called trover
was developed to fill these gaps. But, later, it was found so useful that it was developed to
swallow the other two. Thus, today, in the case of minor interferences, the action available is that
of trespass "de bonis." Whereas major interferences are met with conversion. Conversion,
therefore, has become the chief method for protecting chattels from intentional interference. Let
us now consider seriatim the actions mentioned above by Dixon J.

TRESPASS TO CHATTELS (GOODS)

This tort is committed by intentionally or negligently interfering with a chattel in the possession
of another. The interference must be direct.

As Salmond puts it, the tort: "Consists in committing without lawful justification any act of
direct physical interference with a chattel in the possession of another person.
See also Forson vs Koens.

The interference may be an act which brings the plaintiff's body into contact with the chattel.
Thus, it is a trespass to take away a chattel or to do wilful damage to it. It is a trespass to lean
against somebody's car or to throw water at it. It is equally a trespass to hit somebody's goat or to
catch and take a feather off somebody's hen.

It provides a wider cover of protection than conversion because a mere act of interference is
sufficient and there is no need to prove special damage. You do not need to prove a denial of title
either; that is, the interference need not be adverse to title. But it is narrower than conversion
because of the requirement that the interference be direct. The defendant's act must be the act
which directly causes the trespass.

So, for example, it is no trespass if the defendant puts poison in food for the plaintiff's dog to
consume and it does; or puts a barrier across a road into which the plaintiff drives his car.
However, there is no need for the plaintiff to come into contact with the chattel physically. For
example, to throw a stone at a car is trespass.

In the earlier cases, trespass to chattels involved asportation or carrying off . Later, it was
extended to cover situations where the chattel, though damaged, was not taken away. Finally, it
was applied to any physical interference with chattel in the possession of another.

De bonis is now limited to intentional interference with chattel. For, while an action will lie for
negligent interference which causes damage, this has been absolved into the general field of
negligence actions.

IT IS ACTIONABLE Per Se

The orthodox rule remains that this tort is actionable per se, that is, without any proof of actual
damage. Any unauthorised touching or moving of a chattel is actionable at the suit of the person
in possession, even though no damage ensues (example, crase a tape- recording, show a letter to
an unauthorised person."
The orthodox view is supported by.

William Leitch vs Leydon:

Here the appellants were manufacturers of mineral water. They sold these beverages to
customers in bottles embossed with their name and took steps to ensure that the property in the
bottles remained with them. The respondent dealt in aerated waters. In addition to the bottled
ones, he had installed in his shop a soda fountain. He made no inquiry of his customers as to
their ownership of the receptacles provided, and made no examination of the receptacles beyond
seeing that they were sufficiently clean to receive the drink. The appellants brought the action for
suspension and interdict against the respondent for the use of their bottles.

HELD:

It was held that the respondent was under no duty to examine the bottles before filling them or
inquire into their history and therefore the appellants were not entitled to interdict. (In this case
there were clear statements supporting the actionable per se position).

In Fouldes vs Willoughby:

it was held that the slightest touching of a chattel is actionable as trespass.

However, a New Zealand judge has held that an intentional interference with a chattel without
asportation is not actionable unless there is harm.

The case is Everitt vs Martin:

In that case the plaintiff, while alighting from his car in a car park, had his coat caught on the
dilapidated fender of the defendant's adjoining car. In an action for damages, the court found that
the defendant was negligent in the sense that he, knowing his car's condition, should have
foreseen the likelihood of such an injury when parking his car in

the heart of a big city. The defendant argued that the plaintiff had committed trespass, that is by
allowing his coat to make contact with the defendant's car! The judge held that there was no right
of action in the case of merely accidental contacts, where no damage is done.
He referred to Slater vs Swan." But it is doubtful whether the latter case really supported his
position because it was an action on the case.

In Slater vs Swan:

the plaintiff alleged, in an action on the case, that the defendant beat his horse violently and thus
deprived him of its services for several days. The defendant demurred. The defendant alleged
that the plaintiff had positioned his horse in such a way that a cart he had hired to take his goods
could not come in. That he whipped the horse to remove it from there. Chief Justice Raymond
ruled that, in an action on the case, there was no liability in the absence of special damage. He
left it to the jury to decide whether the defendant had used more force than was necessary to
remove the horse and cart from his door.

The jury found for the defendant. Chief Justice Raymond said that "if a hackney coach stands
before a tradesman's door and hinders customers, he may lawfully take hold of the horses and
lead them away, and is not bound to take his remedy for damages." The taking of the horse
would be justified because of the obstruction. Secondly, there was no liability because the force
involved in the taking was reasonable and therefore did not constitute damage in law.

POLICY ISSUES

However, it seems clear, from a close reading of the cases, that the question of actionability is
determined by policy considerations. In favour of a policy of actionability per se, we may argue
that there is a genuine claim by people to have no interference with certain types of property. For
example,

1. if I leave my toothbrush and you use it, you may not damage it or do any harm to the brushes
but I may never use it again.

2. Or underwear taken from drying line and worn

3. Or, a man comes to sit in your car and refuses to leave when you ask him, but insists on a lift.
He may cause no harm to the seat. But if you evict him, even reasonably, he might be able to sue
you for battery unless you can set up his trespass against him. So trespass must be actionable per
se.

Against such a policy, it may be argued that there is no sound reason for according protection to
non-harmful contacts with chattels. Too much premium should not be placed on property.
Contacts with chattels should not evoke the same emotive feelings for the necessity of protection
as trespasses to the person. These are serious arguments especially if we remember that it was
held in;

Fouldes vs Willoughby:

It was held that the slightest touching of a chattel is actionable as trespass. But we may have to
counter these kinds of consideration with the fear that people might resort to self-help actions, if
the law makes it difficult to seek a judicial remedy.

In the Penfold Wines Limited vs Elliott:

It was held that: A mere taking or asportation of a chattel may be a trespass without the infliction
of any material damage. The handling of a chattel without authority is a trespass,Unauthorised
user of goods is a trespass; unauthorised acts of riding a horse, driving a motor car, using a bottle
are all equally trespasses, even though the horse may be returned unharmed or car unwrecked or
the bottle unbroken."

Relationship between person suing and the chattel interfered with.

This tort primarily protects possession not ownership. An owner Not In Possession can not,
therefore, generally speaking, sue in trespass. The rule is that the defendant's act must disturb the
plaintiff in his possession of the chattel.

Ward vs Macauley:
The plaintiff was the landlord of a house which he let ready furnished to Lord Montfort. In
levying execution against Lord Montfort, the defendant, Sheriff of Middlesex, seized part of the
furniture although he was told it belonged to the plaintiff.

The plaintiff brought an action for trespass against the defendant. At the trial, Lord Kenyon, C.J.
thought trespass could not lie and that perhaps Trover; however, judgment was given for the
plaintiff for the value of the goods with liberty for the defendant to move to enter nonsuit. In the
words of Lord Kenyon C.J:

"The distinction between Trespass and Trover is well settled: the former is founded on
possession; the latter on property. Here plaintiff had no possession; his remedy was by Trover
founded on his property in the goods taken.So no trespass.

Thus, to succeed, the plaintiff must prove that he was in possession of the chattel at the time of
the interference; that is, either that the chattel was within his control by way of physical grasp or
otherwise.

For example, Albert leaves his goods in his house and goes to work. He is, in law, still in
possession of them. Ben leaves things in his car which he parks in the car park in front of the
University Bookshop. He is still in possession.

This principle of possession is important, particularly for rural communities in Ghana as

illustrated by the decision in;

Hamps vs Darby:

The defendant was a farmer who, on the crucial date, had a crop of valuable peas on his farm.
The plaintiff kept racing pigeons as a hobby. He released them daily for exercise and they
usually returned after 15 to 20 minutes. On the crucial day, he released nine birds which settled
on and did serious damage to the defendant's crops.

After shouting unsuccessfully to drive them away, the defendant took his gun and without first
firing a warning shot, shot at the pigeons killing 4 and injuring a fifth. The plaintiff brought an
action in the county court and the judge awarded him £200 damages.

The defendant appealed. The appeal was dismissed.

The court held inter alia:

1. the owner of tamed or reclaimed pigeons continues to have property in and possession of his
birds after they have flown from his dove-cote, so long as the birds retain an animus revertendi to
his control.

2. No justification proved because plaintiff did not establish that shooting them was the only
thing he could do. The onus was on him to justify the shooting." So an action in trespass can be
maintained.

In Re Winkfield:

This was an appeal from the order of a lower court presided over by Sir Francis Jeune dismissing
a motion made on behalf of the Postmaster-General. On April 5, 1900, there occurred a collision
between the steamship, The Mexican and the Winkfield. The Mexican was sank as a result of the
collision.

The owners of the Winkfield, under a decree limiting liability to £32,514 17s. 10d. paid that
amount into court. The Postmaster-General on behalf of himself and the Postmasters-General of
the Cape Colony and Natal claimed, inter alia, to recover from that sum the value of letters,
parcels etc. in his custody as bailee and lost on board The Mexican. It was agreed by all the
parties that the claim was one by a bailee who was under no liability to his bailor for the loss in
question, the legal position of which was settled by Claridge's case. On the authority of that case,
therefore, the court dismissed the claim.

On appeal it was held by the Court of Appeal, that the bailee in possession can recover the value
of goods, although he will have a perfect defence to an action by the bailor for damages for the
loss of the thing bailed, in an action against a stranger for loss of goods caused by the stranger's
negligence; that is possession is good against a stranger whatever the rights are between the
bailor and the bailee.

There seems no requirement in trespass that the possession should be lawful. It may well be
therefore that, as against a stranger, a thief of a chattel may bring an action for trespass to it.

This point may be illustrated with the case of ;

Wilson vs Lombank Ltd:

The plaintiff bought a car from a person who had no title to sell. Apparently, the defendants had
also bought the same car at one time. The plaintiff took the car to a garage for repairs. A
representative of the defendants took the car away when the repairs were finished. And, when
they discovered it belonged to someone else, delivered it to the true owner. The plaintiff brought
this action for damages for trespass claiming the full value he had paid as well as the cost of the
repairs.

Judge Hinchcliffe said he was entitled to succeed because he had possession though no title
"because he had a right to immediate possession as well as possession."

Where you sell goods upon a judgment as a judgment creditor, you have to prove the judgment
upon an action for trespass.

This was decided in White vs Morris:

In this case one Robinson who had carried on business as a draper at Sunderland became
insolvent. He assigned all his household furniture and stock in trade to trustees for the benefit of
his creditors.

The trustees took possession and sold the goods to Robinson and one Story, the latter paying for
them partly in money and partly by bills. When the bills became due, and Story could not meet
them, the present plaintiff, White, agreed to lend Robinson and Story £120 with the goods in
question as security. The goods were accordingly assigned to White.

By the deed of assignment, Robinson and Story covenanted to pay White the £120 on a given
day with interest and assigned to White all the goods in a certain shop and dwelling place (in
respect of which this action was brought), to hold the goods and premises assigned until payment
of the money and with a power to White to sell upon default in payment.

Morrison, Gibson and Wheatley who were manufacturers at Manchester were creditors of
Robinson at the time of the first assignment. They declined to concur in that assignment and after
the trustees had sold the property to Robinson and Story they sued Robinson in the Sunderland
county court and obtained judgment against him.

Taylor and Thompson executed this judgment and sold the goods. The only evidence of the
seizure and sale was, the production of the writ of mandate directed to them with the
indorsement of the high bailiff
In an action by the plaintiff for damages to the goods, it was held that "when goods are assigned
as security for an advance of money, upon trust to permit the assignor to remain in possession of
them until default in payment at the time stipulated... the assignee has a suflicient possession to
enable him maintain trespass against a wrongdoer." The judgment creditor in the circumstances
has to prove the judgment.

THE FOLLOWING EXCEPTIONS TO THIS RULE ON POSSESSION MAY BE NOTED .

1. Trustees are allowed to sue for trespass to chattels in the hands of beneficiaries.

2. The title of personal representatives (administrators and executors) is treated by the law as
relating back to the time of death of the deceased and they are allowed to sue for interference in
the estate of the deceased including chattels which occurred before probate or letters of
administration.

3. In a bailment for a fixed term, the bailor has no possession. But, in a bailment at will, both
bailor and bailee can sue third parties although physically the goods interfered with are in the
hands of the bailee. For bailment for a fixed term, only the bailee can sue. The bailee can sue for
full value of the chattel, although there is a legal duty on him to hand over that part of the
damages that is over and above his interest, as was noted in The Winkfield."

4. The owner of a franchise which entitles him to goods can bring an action in trespass in respect
of interference with the goods before he has actually seized them.

MEASURE OF DAMAGES

Where he is deprived completely, a plaintiff is entitled to recover full value of the chattel. The
plaintiff who is successful in an action for partial damage is entitled to actual damage, that is
partial.
REQUISITE MENTAL REQUIREMENT

The law is that, for trespass to goods, it must be shown that the interference was deliberately or
intentionally made.

The best authority on the mental state required by law for an action in trespass to chattels is:

National Coal Board vs Evans:

An electrical cable had been placed under the land of a county council by the plaintiffs or their
predecessors without the knowledge of the owners of the land. The council contracted with the
first defendants to excavate a trench on this land, handing to them a plan which did not show the
cable. The first defendants sub-contracted with the second defendant to excavate the trench; and
their driver, in the course of doing so with a mechanical excavator, damaged the cable.

The plaintiffs brought an action in trespass against both defendants and obtained judgment.

The defendants appealed.

HELD:

It was held by the Court of Appeal that the appeal must be allowed.

There was no liability in trespass, since the act was involuntary and accidental. The defendants
were utterly blameless. The injury was, attributable to the plaintiffs or their predecessors, who
had committed trespass by placing their cable under the land of the county council without their
knowledge or consent. By "not intentional", in the above case, we must understand that the court
meant that the driver did not deliberately commit trespass to the cable.

Halaby vs Halaby:

The plaintiff was an agent for the firm Halaby Brothers. In 1957, the West African Court of
Appeal ordered the partnership properties to be sold. The defendants went to Nandom to carry
out the sale.
They found all the goods had been removed from the firm's store. Upon inquiry, they discovered
the goods and a safe belonging to the firm in a store which the plaintiff claimed to be his. They
sold the goods and took the safe to Kumasi where it was opened before the registrar.

Apparently some of the goods sold belonged to the plaintiff. He therefore brought an action for
trespass and claimed £1,166 3s. 6d., the value of the goods sold, £200 in cash removed, he
alleged, from the safe and £4,000 general damages. The action was dismissed and the plaintiff
appealed. It was held that the appeal must be dismissed.

The trespass complained of was involuntary and accidental. The defendant cannot be held liable
for any damage as such damage was largely attributable to the plaintiff's own fraudulent act in
removing the firm's goods into his own store. (Clear authority for the proposition that for there to
be liability in trespass to goods, the interference must have been intentional).

So the plaintiff in an action in trespass to chattels must prove that the defendant acted
intentionally.

If the interference resulted from negligent conduct, then the plaintiff should bring the action in
the tort of negligence.

CHAPTER 12

CONVERSION

This tort is concerned essentially with conduct which is an affront to another's property or title in
a chattel. In other words, it seeks to protect a person's ownership, control and general dominion
over his or her chattels. As Lord Nichols said in:

Kuwaiti Airways Corporation vs Iraqi Airways:

Conversion is the principal means whereby English law protects ownership of goods.
Misappropriation of another's goods constitutes conversion. Committing this tort gives rise to an
obligation to pay damages."

This statement was quoted with approval by Date-Bah, JSC in the Yungdong case.

In the Standard Chartered Bank (Ghana) Ltd. vs Nelson:

the Supreme Court said: Conversion, then, is the wrongful possession of goods or chattels
belonging to another and the use thereof by that other."

To understand this tort, we must delve into its origin and development. There are 3 main ways by
which a person may deprive another of his chattel and thereby open himself to an action in law:

1. by wrongly taking it;

2. by wrongly detaining it; or

3. by wrongly disposing of it.

In (1), the possession of the tortfeasor is wrongful ab initio.

In (2), he may acquire or detain it, but he so acts that it is lost to the actual owner.

Possession lawfully but retains it wrongfully.

In (3), he need not take it nor wrongfully detain it , but he so acts that it is lost to the actual
owner.
Originally the law provided three distinct forms of action for the redress of these three situations
mentioned, namely:

1. Trespass de bonis asportatis, for wrongly taking the chattel.

2. Detinue, for wrongful detention of the chattel.

3. Trover, for wrongful disposal of the chattel

Trespass and detinue date from the early beginnings of the law. Trover was later developed.
( 15th to 16th century).

In the modern law, the term conversion covers the 3 situations described above, but, originally, it
was limited only to the third situation.

Originally, therefore, to convert goods meant to dispose of them, to deal with them in such a way
that neither the owner nor the wrongdoer had any further possession of them, example by
consuming, destroying or selling them.

To take away someone else's goods, however, unlawful, was not to convert them. Nor did the
mere detention of the goods of another in defiance of the owner's title amount to conversion,
example money converted by the thief spending it, food by eating it, jewels by pawning them.

Conversion now covers the whole field because, as a result of a historical development, it was
extended to appropriate or cover the territory which was formerly occupied by the other forms of
action.

HISTORICAL DEVELOPMENT

Before trover was developed, interferences now amounting to conversion were redressed by
detinue. This is because the defendant in detinue, who was charged with unjustly detaining goods
of the plaintiff, was not allowed to object to the action on the grounds that he had already
disposed of them and therefore no longer detained them.

Trover was developed, because detinue was an unsatisfactory remedy since it permitted wager of
the law (a form of licensed perjury as noted earlier under trespass). So pleaders began to avoid
all forms of action in which wager was allowed by the law and invented other forms of action in
which the plaintiff was allowed the benefit of a jury.

The declaration in trover was simply a variation of the declaration in detinue. The only material
difference was that in trover the defendant was sued for wrongly converting the chattel to his
own use, while in detinue the allegation was one of unjustly detaining it. Detinue was of two
kinds:

1. detinue sur bailment; and

2. detinue sur trover;

(1.) was the appropriate remedy if the defendant got the property through a bailment or contract
between the parties or some-how lawfully (bailment); and

(2.) where the defendant had found the goods or come into possession of them in a manner other
than by contract with the owner (finding)

Allegations of bailment and finding were, however, fictional, immaterial and untraversable. The
means by which the defendant obtained possession of the goods was unimportant.

The only issues were

1. Did the goods belong to the plaintiff?

2.) Has the defendant unjustly detained them?

The action of trover (and later conversion) was modelled upon that of detinue sur trover Here the
plaintiff alleged three things:

1. that he had possession of certain goods ut de bonis propriis - a legal fiction (could have
alleged a bailment instead);

2. that he casually lost them and defendant found them (enough to say, 'devenerunt ad manus
defendentis');

3. the defendant did not return them but wrongfully converted them to his own use. Trespass and
trover were both actions founded upon possession and for centuries they remained as alternative
remedies for the wrongful taking or damaging of chattels. There was one important difference,
that is in the measure of damages.

The theory of trespass was that the plaintiff remained owner, with his possession merely
interrupted or interfered with. Thus, when the chattel was tendered back to him he had to accept
it. His recovery was limited to damages to the chattel or to his possession, often considerably less
than the value.

The theory of trover on the other hand was that the defendant, by "converting" the chattel to his
own use, had appropriated the plaintiff's property for which he was required to compensate him.
The plaintiff was therefore not required to take back the chattel when tendered to him and he
recovered, as damages, the full value of the chattel at the time and place of conversion. Thus the
defendant was forced to buy the chattel through trover.

The basic difference between trespass and trover or conversion was poignantly brought out in:

Fouldes vs Willoughby:
The owner of two horses had come on board a ferry from Birkenhead to Liverpool. The ferryman
refused to carry the horses. The owner refused to take them back on shore, and so the ferryman
took the bridle from the owner turned the horses loose at the landing. The owner stayed put on
board, and did not try to get the horses back. He sued the ferryman for conversion.

The judge at the trial told the jury that the defendant ferryman, by taking the horses from the
plaintiff and turning them out of the vessel, had been guilty of a conversion. The ferryman
appealed.

The Exchequer Court held that the ferryman was not guilty of conversion, because there was no
interference with the plaintiff's "general right of dominion" over the horses. “In my opinion,”
said Lord Abinger CJ,

“he should have added to his direction, that it was for them to consider what was the intention of
the defendant in so doing. It is a proposition familiar to all lawyers, that a simple asportation of a
chattel, without any intention of making any further use of it, although it may be a sufficient
foundation for an action of trespass, is not sufficient to establish a conversion. It has never yet
been held that the single act of removal of a chattel, independent of any claim over it, either in
favour of the party himself or any one else, amounts to a conversion of the chattel.”

Rolfe B gave a now well recognised definition of conversion that it is,

"a taking with the intent of exercising over the chattel an ownership inconsistent with the real
owner's right of possession".

Instead, the ferryman was liable for trespass

When, therefore, a man takes that chattel, either for the use of himself or of another, it is a
conversion. So, if a man has possession of my chattel, and refuses to deliver it up, this is an
assertion of a right inconsistent with my general dominion over it and the use which at all times
and in all places, I am entitled to make of it; and consequently amounts to an act of conversion.
But the question here is, where a man does an act, the effect of which is not for a moment to
interfere with my dominion over the chattel, but, on the contrary, recognising throughout my title
to it, can such an act as that be said to amount to a conversion? I think it cannot.

Thus the action in trover failed in the case because there was no intention on the part of the
defendant to interfere with the plaintiff's right or dominion over the horses.

WHAT IS CONVERSION THEN?

Conversion may be defined in the case of:

Fouldes vs Willoughby:

as an intentional interference or dealing with the chattel, which is seriously inconsistent with the

1. possession or

2. Right to immediate possession of another.

Quoting with approval Lord Nicholls' discussion on the nature of the tort in Kuwaiti Air
Corporation vs Iraqi Airways (Numbers 4 & 5) , the Supreme Court of Ghana in

Yungdong Industries Limited vs Roro Services reflected on the tort thus:

"Mere unauthorised retention of another's goods is not conversion of them. Mere possession of
another's goods without title is not necessarily inconsistent with the rights of the owner. To
constitute conversion detention must be adverse to the owner, excluding him from the goods. It
must be accompanied by an intention to keep the goods."
In similar vein, the Supreme Court of Ghana stated in;

Standard Chartered Bank (Ghana) Limited vs Nelson:

thus, conversion, then, is the wrongful possession of goods or chattel belonging to another and
the use thereof by that other.

As stated in the Kuwaiti case, there are three elements contained in this interference:

1. the defendant's conduct was inconsistent with the rights of the owner (or other person entitled
to possession).

2. the conduct was deliberate not accidental.

3. the conduct was so extensive an encroachment on the rights of the owner as to exclude him
from the use and possession of the goods.

The contract is with lesser acts of interference. If these cause damage they may give rise to
claims for trespass or in negligence, but they do not constitute conversion.

TITLE TO SUE (CAPACITY)

In conversion, the plaintiff must have either

1. actual possession or
2. a right to immediate possession at the time of the interference.

Thus, although the tort of conversion protects ownership, and although from the point of view of
the defendant, his action can only be challenged, if it is inconsistent with ownership or the
plaintiff's title, the interest that the plaintiff must prove to succeed is short of actual ownership.

Armory vs Delamirie;

In this case, the plaintiff, a chimney sweeper's boy, found a jewel and carried it to the defendant's
shop (the defendant was a goldsmith) to know what it was, and delivered it to the apprentice
who, under the pretence of weighing it, took out the stones, and informed his master that it was
worth three and half pence. The master offered the money to the boy who refused to take it and
insisted on having the jewel back. The apprentice gave him back the socket without the stones.
He sued in trover.

HELD:

It was held as follows:

1. The finder of a jewel, though he does not by such finding acquire an absolute property or
ownership, yet he has such a property as will enable him to keep it against all but the rightful
owner, and can consequently bring an action in trover.

2. The action in law must be against the master, who gives credit to his apprentice and is
answerable for his neglect.

3. The measure of damages should be assessed at the value of the jewel of the finest water that
would fill the socket, that is the value of the best jewels.

Thus mere possession, without title, was held in this case to be sufficient to maintain an action in
conversion.
The reason for permitting the person in possession to sue in conversion is said to be that the
person in possession has sufficient title against the wrongdoer who has no rights at all. He is also
in a better position to account to the true owner should he come back later.

But an owner not in possession cannot maintain an action in trover.

So it was held in Gordon vs Harper:

What is possession for the purposes of this tort? The determination of what would suffice as
possession to support an action in conversion can only be confidently speculated on by reference
to the decided cases and principles emerging therefrom.

Professor Street defines it in terms of an animus possidendi - an intention and a factum" (power).
He explains that possession connotes the power to control and the intention to exclude all others
from the enjoyment of the chattel. This ideal and simplified conception is watered down in its
application in the cases.

In Ahiable vs Dosu:

it was held that the owner of land was prima facie owner of chattels found in it unless he
divested himself by abandonment, sale or gift.

If one does not know about a chattel, you can hardly be said to have an intention to exclude
others from its use or enjoyment. Yet the tort often protects damage to things in the sub-soil and
it can hardly be said that a person knows what is beneath the soil. The law distinguishes between
chattels found in or attached to land and those found on land. The following three cases discuss
the law on possession relating to chattels found in or attached to the land:

South Staffordshire Water Company vs Sharman:

In 1895, the plaintiff's employed the defendant together with a number of other workmen to
clean a pool for them. During the cleaning, the defendant found two gold rings at the bottom of
the pool and refused to give them to the plaintiff's when required. He gave them to the police
who, failing to find the owner, returned them to him. The plaintiff's sued the defendant in detinue
for the recovery of the rings. The county court gave judgment for the defendant on the authority
of Armory vs Delamirie." No contract existed between them requiring the handing over of things
found during the cleaning. The plaintiffs appealed.

The appeal was allowed .

Speaking for the appellate court, Lord Russell, relying on Pollock & Wrights', Essay on
Possession in the Common Law quoted the law thus:

"The possession of land carries with it in general, by our law, possession of everything which is
attached to or under that land, and, in the absence of a better title elsewhere, the right to possess
it.

And it makes no difference that the possessor is not aware of the thing's existence... It is free to
any one who requires a specific intention as part of a de facto possession to treat this as a
positive rule of law. But it seems preferable to say that the legal possession rests on a real de
facto possession constituted by the occupier's general power and intent to exclude unauthorised
interference.

Where a person has possession of a house or land, with a manifest intention to exercise control
over it and the things which may be upon or in it, then, if something is found on that land,
whether by an employee of the owner or a stranger, the presumption is that the possession of that
thing is in the owner of the 'locus in quo"."

In Elwes vs Brigg Gas Co.:

the plaintiff, Lord of the Manor of Brigg, demised to the defendants, for 99 years, a piece of land
in Brigg, in December 1885, reserving to himself all mines and minerals. In April 1886, the
defendant's company, while excavating the land prior to the erection of a gasholder, discovered,
embedded in the clay about six feet below the surface, a prehistoric boat (about 2000 years old).

The plaintiff asked for the delivery to him of the boat and the defendant declined, asserting that
the boat belonged to them. The plaintiff sued. It was held that the plaintiff had a lawful
possession of the boat, good against all the world and therefore the property in the boat. It was
immaterial that he was unaware of the existence of the boat. The licence to remove and dispose
extended to the clay and ordinary soil likely to be found in pursuing the licence to excavate but
did not extend to what was unknown and not contemplated and therefore did not comprise the
boat.
In London Corporation vs Appleyard;

the plaintiffs, freeholders of a building site, had leased it to Albert who was financed by Ben. A
clause in the agreement required the handing over of "every relic or article of antiquity, rarity or
value" to the plaintiffs. Albert wrote to Ben confirming that they held the property in trust for
Ben.

Ben entered into a building-contract with Cate for the construction of a new building. Two
workmen of Cate, while working on the site, found, in the cellar, an old wall safe built into the
wall. Inside the safe was a wooden box containing bank notes issued in 1943 or 1944 to the value
of £5,728. The true owners were never found. On the issue of who was entitled to the bank notes
in the absence of the true owner, the court held that it was the corporation. This conclusion was
reached by the court on the grounds that:

1. the safe being built into the wall formed part of the demised premises and so the safe and its
contents belonged either to A or B, one or other of whom was in possession of the premises and
thus had a better title than the finders.

2. The bank notes were articles of value within the clause by which the corporation had reserved
such things to themselves.

3. possession was in Ben either because (i) they financed it or (ii) because of the letter they were
written by Albert.

These three cases state clearly the principle that the occupier or owner of a land to which things
are attached has a right to them when found. They indicate that possession of the premises will
prevail, against the finder. But the right of the true owner will always prevail; that is the true
owner of a chattel found on land has a title superior to that of anybody else.

As was stated in Moffat vs Kazana:

the true owner's right to sue is based not on possession but on a right to immediate possession.
The distinction between chattels found on land and in land makes trivials important. If a chattel
is found on a dry patch, the finder has possession; if in mud, the owner or occupier has
possession! But may be this is to encourage finders to be honest, though the criminal law already
seems to do this.

As regards chattels found on the land, as opposed to attached to or under, there is a conflict as to
who has the right to sue. Harris in his article" suggests that, on public policy grounds, the owner
has this right, since there is a chance that he will remember where he placed it and go back for it.

From the point of view of the protection of the true owner, possession must be said to vest in the
occupier of the land on which the chattel is found as against the finder. But the law does not
always work in this way.

Bridges vs Hawkesworth.

Bank notes were accidentally dropped by the owner in the shop of the defendant. The plaintiff
found them on the floor. He gave them to the shop-keeper to find the owner. Later, he sought to
recover them from the shop- keeper who refused to surrender them to him. In an action by the
plaintiff, the county court judge decided that the defendant was entitled to the custody of the
notes as against the plaintiff. This was reversed on appeal by the Court of Queen's Bench. This is
how Patterson J explained the decision on appeal:

"The notes were never in the custody of the defendant, nor within the protection of his house,
before they were found, as they would have been had they been intentionally deposited there;
and the defendant has come under no responsibility. except from the communication made to
him by the plaintiff, the finder, and the steps taken by way of advertisement.

We find, therefore, no circumstances in this case to take it out of the general rule of law, that the
finder of a lost article is entitled to it as against all persons except the real owner, and we think
that that rule must prevail and that the learned judge was mistaken in holding that the place in
which they were found makes any legal difference."

Similarly in Hannah vs Peel:

the defendant was owner of a house he had never occupied himself. While the house was
requisitioned, the plaintiff, a lance-corporal, found in a bedroom used as a sick bay, loose in a
crevice on top of a window frame, a Brooch the owner of which was unknown. On the advice of
his commanding officer, he handed it over to the police and received a receipt for it.

There was no evidence that the defendant had any knowledge of the existence of the brooch
before it was found by plaintiff. But the police, to whom the plaintiff handed it to ascertain its
owner, gave it to the defendant who, claiming it because it was on his premises, sold it.

The plaintiff thereupon sued the defendant for the return of the brooch or its value and damages
for its detention.

It was held that the plaintiff must succeed.

The judge based his decision on Bridges vs Hawkesworth. He was satisfied that the brooch was
"lost" in the ordinary sense of the word and "found" again in the ordinary sense.

The defendant had no knowledge of it until it was brought to his notice. The finder was held
entitled to the chattel as against the owner of the premises who had also not been physically in
occupation of the premises.

The fact that the owner was never in occupation may probably have been the reason the case was
so decided].

However, in Hibbert vs McKiernan:

the appellant went on to the links of a gold club and took eight goli' balls "animus furandi, to use.

Chief Justice Goddard's description of his intention) which, it was found, had been abandoned by
their former owners. He knew a police officer had been stationed there to warn off trespassers.
The appellant was arrested, charged with stealing the balls and convicted. He appealed. The
appeal was dismissed. Lord Goddard C.J., said:

"Every householder or occupier of land means or intends to exclude thieves and wrongdoers
from the property occupied by him, and this confers on him a special property in goods found on
his land sufficient to support an indictment if the goods are taken therefrom, not under a claim of
right, but with a felonious intent."
1.The club was held to have possession in the balls enmeshed in grass on the surface of the golf
course.

2. The court took account of the fact that the club had positioned a policeman on the precincts to
warn off trespassers- this was held to constitute the animus possidendi.

For his apart, Pritchard J expressed himself as follows: Before it can be said that the members
did acquire such a possession of the balls, I think it must appear from the facts found that they
intended to exclude others from interfering with the balls, and that they had over them a degree
of power which was sufficient for the purpose of giving effect to such intent. In my judgment, it
is clear on the facts that the members did so intend and had such power."

It seems then that there are cases supporting both views. It would appear that the preferable
statement of the law in this regard would be, namely that whether the owner of the land is in
possession of chattels found loosely on the land depends on whether he intends and has the
power to exercise physical control over them.

If they are under or attached to the land, this will be presumed; if, on the other hand, they are
loose on the land, the nature of the chattel, the extent of public access to the land, whether the
owner occupies the land, and other like factors will be relevant in deciding whether the owner of
the land has the necessary animus and factum to be said to be in possession of them when found.

RIGHT TO IMMEDIATE POSSESSION

As noted already, the plaintiff in an action in conversion must prove either that he was in
possession of the chattel at the time of the interference or had a right to immediate possession of
it. By right to immediate possession, we mean that the plaintiff must be unconditionally entitled
to assume physical control of the goods if he so wishes. Such an unconditional to possession is
sufficient to ground an action in conversion.
Lord vs Price:

the plaintiff bought two lots of cotton at an auction under conditions which required him to pay a
deposit at the time of the sale and the balance immediately after and before delivery. The
Plaintiff paid the deposit but did not pay the residue of the purchase money and left the cotton in
the field where the auction had been held. On the same day, he removed one of the lots. When he
went later to take the rest it was gone, removed by the defendant mistakenly. The plaintiff sued
for alleged conversion. The learned assessor dismissed the plaintiff's action on the ground that
the vendor's lien for unpaid purchase-money prevented the plaintiff from maintaining trover and
gave leave to the plaintiff to move the Court of Exchequer for a new trial.

A rule having been accordingly obtained, it was held that the rule must be discharged on the
grounds that the action cannot be maintained without a right of present possession in the
plaintiff. That right was in the vendor who was entitled to retain possession of the goods until the
balance had been paid. The vendor could have maintained the action but not the plaintiff.

In conversion cases based on sale then, it would seem that a buyer under a sale transaction not
involving credit has no sufficient interest to sue unless he has paid the purchase price. Where
however the goods are sold on credit, there is no seller's lien and the plaintiff may then sue.

This rule involving credit sales was developed in Bloxam vs Sanders:

The defendant, a hop-merchant, on several days sold various parcels of hops to B by contract.
The usual time for payment in the trade was the second Saturday subsequent to the purchase.
Ben did not pay for the hops at the usual time and the defendant gave notice that unless they
were paid for by a certain date they would be resold. They were not paid for and the defendant
resold a part with Ben's consent. Ben afterwards became bankrupt.

The defendant then sold the rest without the assent of Ben or his assignees (the plaintiffs in this
case). The defendant delivered accounts of sales of the hops sold without Ben's consent and
charged B warehouse rent and commission. The hops were stated to have been sold for Ben.
Apart from the hops bought from the defendants, B had also placed some in their warehouse for
sale by them. Some of that and the one bought from the defendants were left in the warehouse.

Ben's assignees demanded these from the defendants and they refused to deliver them.
Whereupon the assignee brought this action. The jury found that the defendant had not rescinded
the contract of sale. Bayley J gave judgment to the plaintiffs in respect of hops not bought from
the defendants. As regards those bought from them, he held that an action in conversion will not
lie. This is because although a vendee of goods acquires a right of property by the contract of
sale, yet he does not acquire a right of possession to the goods until he pays or tenders the price.

"Where goods are sold and nothing is said as to the time of the delivery, or time of payment, and
everything the seller has to do with them is complete, the property vests in the buyer, so as to
subject him to the risk of any accident which may happen to the goods, and the seller is liable to
deliver them whenever they are demanded upon payment of the price; but the buyer has no right
to have possession of the goods till he pays the price.

If the goods are sold on credit, and nothing is agreed upon as to the time of delivering the goods,
the vendee is immediately entitled to the possession, and the right of possession and the right of
property vest at once in him; but his right of possession is not absolute; it is liable to be defeated
if he becomes insolvent before he obtains possession."

Mental State Required for Liability in Conversion.

In Simmons vs Lillystone:

we find the following statement of principle by Baron Parke: in order to constitute a conversion,
there must be an intention of the defendant to take to himself the property in the goods, or to
deprive the plaintiff of it. If the entire article is destroyed, as for instance, by burning it, that
would be a taking of the property from the plaintiff and depriving him of it, although the
defendant might not be considered as appropriating it to his own use. In this case, nothing is
done but cutting the timber, and by accident, it is washed away by the river we think that does
not amount to conversion."

The basic rule then is that conversion is based on deliberate conduct. Negligently interfering with
a chattel is not enough. There is no need for an intention on the part of the defendant to
consciously do wrong. It is enough that the defendant did the act intentionally, which is
inconsistent with the true owner's right to possession. Ignorance and accidents are thus no
defences to conversion. That is to say the defendant must do intentionally the act which the
plaintiff relies on as conversion - not that the defendant intends to commit conversion.

Williams vs Geese;
 illustrates the view that negligence does not constitute conversion. This was an action for trover
of a coat and pantalons. The defendant kept a public house at Oxford frequented by farmers. The
plaintiff's clothes, packed in a box, were deposited in the defendant's kitchen behind the settee by
a person who said the box was to stay till called for. The box was never seen again by the
plaintiff but when he inquired for it, the defendant said "I suppose it is behind the settee." The
court gave verdict for the plaintiff with leave for the defendant to move to enter a non-suit
instead, on the ground that there was no evidence of conversion.

A rule nisi was obtained and was subsequently made absolute. In a similar action by a sister of
the plaintiff against the defendant, it was proved that the defendant received parcels for carriers;
that the parcels were placed behind the settee and when the parcel in question was asked for, the
defendant's wife said: "my husband has sent it, no doubt, by Croft the Carrier: he has a bad
memory, it is a pity you did not speak to me." Verdict was given for the defendant.

The plaintiff moved for a new trial on the ground that the wife's language showed that the
defendant had interfered by giving directions, which would amount to conversion. The court
rejected this contention. In the opinion of the court, the evidence disclosed only negligence and
that will not support an action in conversion.

Ashby vs Tolhurst:

is to the same effect. Here the owner of a motor car left it in a private parking ground. On
payment of one shilling, he received a ticket containing a receipt for the one shilling followed by
a provision:

"The proprietors do not take any responsibility for the safe custody of any car or articles therein
nor for any damage to the cars or articles however caused... all cars being left in all respect
entirely at their owners' risk."

When the owner returned for his car, the attendant told him that he had just given it to the
owner's friend. The man who had so obtained the car had neither the key nor the ticket. The car
was never recovered. The owner brought this action against the car park proprietors for damages,
among others, for conversion by misdelivery. The county court judge found for the plaintiff and
the defendant appealed.
It was held:

1. The relation between proprietors and car owner was that of licensor and licensee; therefore the
proprietors came under no liability whatsoever. No possession could therefore pass to the
proprietors.

2. The attendant's act did not amount to misdelivery.

3. Even if a contract. of bailment could be inferred and the act of the attendant constituted
misdelivery, the proprietors were relieved of all liability by the conditions.

4. No term could be implied that no ticket, no parting with car.

This case is authority for the proposition that negligence will not constitute conversion.

STRICT LIABILITY

Liability in conversion is strict that is no need to prove fault on the part of defendant. This is
illustrated by the decision in:

Hollins vs Fowler:

Ben fraudulently obtained cotton from Frank. Henry (a cotton broker who was ignorant of Ben's
fraud on Frank purchased it in good faith from Ben in the belief that Mensah, one of his ordinary
clients, would accept it. Mensah did afterwards accept it. Henry received only a broker's
commission from Mensah. It was held that Henry bought of Ben as a principal and by
transferring to Mensah had committed conversion against Frank the true owners:
"Any person who, however, innocently obtains possession of the goods of a person who has been
fraudulently deprived of them and disposes of them, whether for his own benefit or that of any
other person, is liable in conversion."

Cleasby J said that:

the liability under it (i.e. conversion) is founded upon what has been regarded as a salutory rule
for the protection of property, that persons deal with the property in chattels or exercise acts of
ownership over them at their peril."

Kabbara Brothers Transport vs Anin:

Here the plaintiffs' vehicle, at the instance of the first defendant (judgment creditor), was seized
by a deputy sheriff, and sold by the second defendant (auctioneer) to the third defendant, a bona
fide purchaser. The vehicle did not belong to the judgment debtor. Counsel for the second
defendant objected to the action on the ground that the second defendant was acting as agent for
the deputy sheriff who is an officer of the court. Counsel for the third defendant objected on the
ground that his client bought as an innocent purchaser for value. Edusei J overruled the
objections. In his view:

"There had been an adverse dealing with the plaintiffs' property in the vehicle with the result that
the plaintiffs have been deprived of the immediate use and enjoyment of the said vehicle. Any
person dealing adversely with the property of the plaintiffs may have to answer his claim and the
action of trover or conversion against any such person.

Date-Bah, has underlined the point more recently in Youngdong Industries Ltd. vs Roro
Services thus:

"conversion is a tort of strict liability. In other words, if an act amounts to conversion, it is

irrelevant to the liability of the tortfeasor whether he or she is aware of that fact or not, or is at
fault."

SUBJECT MATTER OF CONVERSION.

Types of property which can be converted traditionally were those based on the fiction of "losing
and finding.

Only tangible property that is chattels could be lost and found and therefore form the subject
matter of conversion. For example, land could not be lost or found, so could not form the subject
matter of conversion. So also choses in action could not form the subject matter of conversion.

Commercial convenience and business exigencies however, dictated a review of this fiction.
Thus, it is that intangible property or choses in action, if represented in the ordinary course of
business by a special written document (such as stocks, bonds, bills, the value of a cheque), were
added to the subject matter of conversion.

Conversion of the document is taken as conversion of a chattel equal in value to the face value
evidenced by the document. In Ghana, an even higher inroad has been made into the rule that
only tangible property can form the subject matter of conversion.

In De Wills Archbold vs C.F.A.O:

It held that a musical composition which had not even been reduced into writing had been
converted.

The law in this area was further developed in Harlley vs Ejura Farms.

CONVERSION IN RELATION TO Bailment

A bailee of goods is considered as having sufficient possession of chattels in his charge to enable
him sue. If the bailment is at will the bailor may also sue. The principles governing this area of
the law were discussed in Penfold .

Here the law distinguishes between a voluntary and an involuntary bailee. If goods are delivered
into the possession of a person whom the law characterises as an involuntary bailee (a person
who comes into possession of a chattel through no act of his own and without his consent), then
if that person takes reasonable steps to restore the goods to the one he honestly believes to be the
true owner, or an accredited agent of the owner, and if the goods are as a result of this honest
mistake misdelivered to a person other than the true owner, the law will absolve the involuntary
bailee provided he was not negligent.
But if he disposes of the goods otherwise, he will be liable. Two cases throw light on this last
point.

Hiort vs Bott:

The plaintiffs sent the defendant an invoice for barley, which stated that the barley was bought
by the defendant from the plaintiffs through G as a broker and also a delivery order which made
the barley deliverable to the order of the consignor or consignee.

The defendant had not in fact ordered any barley from the plaintiffs. G called on the defendant
who showed him the documents and told him it was a mistake. G said That it was, and asked the
defendant to endorse the order to him, for the purpose, as he aid, of saving the expense of
obtaining a fresh delivery order.

The defendant indorsed he order to G, who got the barley from the carriers and then absconded.
In an action for trover for the barley, the jury found that the defendant had no intention of
appropriating the barley to his own use but indorsed the order for the purpose of correcting what
he believed to be an error and returning the barley to the plaintiff. It was held that trover will lie.
The defendant, by indorsing the order for G, did an unauthorised act and deprived the plaintiff of
their property.

Elvin & Powell vs Plummer Roddis & Co .:

The plaintiffs were rain-coat manufacturers. X entered their ware-house and ordered £350 worth
of rain-coats. X asked that the goods be sent to the Brighton branch of the defendants. X then
sent a telegram to this branch which read: "Goods dispatched to your branch in error. Sending
van to collect.

He then sent his accomplice in a van to collect them. The accomplice handed in a trade card of
the plaintiffs. The defendants, after making reasonable inquiries, gave him the rain-coats. X and
his accomplice were never seen again. The plaintiffs sued on two counts:

1. That the defendants were bailees and liable because they were negligent; and

2. conversion. Hawke J rejected both claims because, according to him, in the case of count one,
the defendants had not been negligent. On count two, the plaintiffs' counsel admitted that no
evidence existed that the defendant intended to deny the plaintiffs' right in the goods or to assert
any right inconsistent with it.

But ordinarily, this should not absolve the defendant because, in Hiort vs Bott, the jury expressly
found that the defendant in signing the order had no intention of appropriating the barley to his
own use.

He distinguished Hiort vs Bott from the present case on the grounds that here the defendants
were involuntary bailees (I.B.). So no liability.

SPECIFIC EXAMPLES OF CONVERSION

Conversion by Refusal to Surrender on Demand

If a person in possession of the plaintiff's chattel refuses to hand it over on demand, this
constitutes conversion. The defendant, however, must still be in possession at the time of the
demand. The law allows a person to investigate within reasonable time to ascertain the title of
the person demanding.

Therefore withholding for a reasonable time to investigate will not amount to conversion under
this head. Demand and refusal is therefore only evidence of conversion.

Denial of Access to Plaintiffs' Title

Conversion can be committed by denying to a plaintiff the right to have access to his own
chattel. However, the act must constitute an absolute denial and repudiation of the plaintiffs'
rights.

The principle can be illustrated by the decision in:

Oakley vs Lyster:

The plaintiff-respondent, a demolition contractor, bought and undertook to clear away an

aerodrome which had become useless after the armistice. In consequence, he became entitled to
about 8000 tons of hard core and tar macadam. To clear the stuff from where it was, he rented a
space of three and half acres of land on the opposite side of the road and there deposited the
stuff. He sold a large portion of it but had still at the material time about 4000 tons left. While his
tenancy of the three and a half acres was still subsisting, the defendant-appellant bought the
freehold of the property on which they were.

The defendant-appellant convinced himself that he had an immediate right to the area covered by
the tenancy as well as the stuff. So he refused to let the plaintiff take his stuff. The plaintiff sued
in conversion and judgment having been given to him, the defendant appealed.

It was held that the appeal must be dismissed. It was clear to the judges that the appellant was
exercising dominion over the stuff inconsistent with the rights of the true owner and with the
intention of denying the plaintiff's rights over them.

The above case may be contrasted with England vs Cowley:

where a statement that goods are not to be removed until rent is paid was held by a majority of
the court not to amount to an absolute interference with the plaintiffs' rights and therefore not
conversion. On this point of partial or absolute denial, see also the decision in:

Simmons vs Lillystone:

where denials were deemed partial and therefore no conversion was committed.

Contrast England vs Cowley with the Ghanaian case of :

African Drug Company vs Kumasi City Council:

In this case the plaintiffs were licensees of a store at Kumasi market owned by the defendants.
Because the plaintiffs were in arrears of rent, a servant of the defendants locked them out of their
store, thus preventing their access to documents in the store which included an import licence for
drugs. Because of the plaintiffs' failure to gain access to this licence they were unable to take
delivery from the Customs Department of the drugs and the Department eventually sold them at
a public auction as unclaimed goods.
On these facts, Mensa Boison J said:"

"The defendants' act of locking out the plaintiffs was found wilful, and evinced an intention to
exercise dominion over whatever chattels were in the store, by the refusal to hand over the keys
initially. The defendants must suffer the risk that the chattels included [the import license, which
by its peculiar nature may be said to represent the consignment of drugs. I find the defendants
were guilty of conversion of the import licence."

Thus it was held a non-absolute denial of access to the plaintiffs' documents to be conversion."

Wansborough & Another vs Maton:

is an example of a situation in which the denial of access was absolute. The plaintiffs were
tenants of the defendant. They erected a barn on the land. After the expiration of the tenancy,
they left the land and wanted to take away the barn. The defendants refused unless they agreed
with him on another matter in dispute. Afterwards the plaintiffs sent people to bring the barn.
The defendant was on the premises at that time; he sent the men away and locked the gates after
them. The plaintiffs then brought the suit for conversion. It was held that the defendant was
liable since the barn was not a fixture and could therefore not be considered as part of the
freehold.

Special Action on the case for the loss of the Reversionary Interest

An owner out of possession is not entirely remediless. He can sue in an action on the case for
damage done to his reversionary interest with respect to those interferences which would make
the reversionary interest valueless,

Mears vs London & South Western Railway Company.

The plaintiff was the owner of a certain barge which he had hired to a third person. The
defendant's servants negligently caused damage of a permanent nature to it, while they were
lifting a boiler from the barge. At the time the damage took place, the barge hiring agreement
was still subsisting. The defendants denied any liability. It was held, that trover will lie for a
permanent injury done to a chattel while the owner's right to possession is suspended.
Penfolds Wines Property Limited vs Elliott

Tort; conversion; interference with proprietary rights.

Facts: Penfolds sold its wines in bottles that were permanently embossed with its name.
Purchasers of the wine were supposed to return the empty bottles to Penfolds, which remained
owner of the bottles. Some purchasers of Penfolds wine kept the bottles and used them to buy
wine from Elliott, an hotelier, who would fill empty bottles brought to him with his own bulk
supplies of wine. Penfolds sought an injunction against Elliott, to stop him doing this.

Issue: Did Elliott's conduct amount to conversion of Penfolds' bottles?

Decision: Elliott's conduct did not amount to conversion.

"The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate
right of possession of the person who has the property or special property in the chattel.

Damage to the chattel is not conversion, nor is use, nor is a transfer of possession otherwise than
for the purpose of affecting the immediate right to possession, nor is it always conversion to lose
the goods beyond hope of recovery. An intent to do that which would deprive 'the true owner' of
his immediate right to possession or impair it may be said to form the essential ground of the
tort. There is nothing in the course followed by the [defendant] in supplying wine to his
customers who brought bottles to receive it involving any deprival or impairment of property in
the bottles, that is, of the immediate right to possession.

The re-delivery of the bottles to the persons who left them could not amount to a conversion
because its purpose was not to confer any right over the property but merely to return or restore
them to the person who had left them there to be filled.

It was not an act derogating from the proprietary right of the [plaintiff
CHAPTER 13

Detinue

Any legally unjustified detention of a plaintiff's goods constitutes detinue. The plaintiff would
have to prove that he had a right to immediate possession and that the defendant refused to hand
them over on demand. Thus expressed, it becomes coterminous with the tort of conversion and is
embraced by it.

Generally, therefore, whenever Conversion lies, Detinue will also be available.

The difference lies in the fact that, in detinue, even where the defendant no longer has the goods
in his possession at the time of the demand, he is liable to the plaintiff, unless he can show the
loss was accidental.

It is also a defence in detinue if the defendant can show that he took possession of the plaintiff's
goods on grounds of necessity.

Also detinue differs from conversion in the areas of remedies as said in

General & Finance Facilities Ltd. vs Cooks Cars.

Conversion is an action in personam. The action in detinue is in rem. Conversion is thus for mere
pecuniary compensation but detinue may afford:

1. the value of the thing as assessed;

2. specific restitution or else value plus damages for its retention; and
3. specific restitution and damages for its detention.

Detinue also entitles the plaintiff to the issue of a writ for delivery. Relief (1) is the usual
remedy.

For relief (2), see Civil Procedure Rules ( C I 47) .

In conversion the value of the goods is assessed as at the time of the Conversion. But, in detinue,
it is assessed as at the time of the judgment. This has a great commercial value; for the market
price of the goods may be higher at the time of judgment.

Tabury vs GCB;

where damage to fish that had been unlawfully detained was assessed as at the time of detention,
not of judgment. The decision here was given clearly per incuriam."

The Supreme Court of Ghana in:

Standard Chartered Bank Limited vs Nelson:

brought out the difference between CONVERSION and Detinue as follows:

"We think the confusion arises from the difficulty of Counsel and the judges in appreciating the
thin but clear line of distinction between the torts of detinue and conversion.

In Conversion, the action is for restitution intergrum and damages may be exacted on account of
the special quality of the chattel.

In Detinue, the dealing with the chattel is unlawful and the action is for the recovery of the
chattel or the value together with damage for consequential loss where so warranted or
indicated."

ADVANTAGES OF Detinue OVER CONVERSION:

1. The plaintiff can sue in detinue, even though the goods are no longer in the possession of
defendant;

2. the plaintiff can obtain specific restitution of his goods in detinue (important when the article
is of symbolic significance);

3. the plaintiff is entitled to the value of the goods as at the time of judgment (can take account of
inflation).

4.damage for loss of goods can also be claimed by the plaintiff separately from the value of the
goods."

ADVANTAGE OF CONVERSION OVER Detinue

Where the goods depreciate in value, it will be wise to sue in conversion so as to claim value as
at the date of the conversion. Where the goods appreciate in value, you should sue in Detinue
because the value of the chattel will be assessed as at the time of judgment.

SUMMARY OF DIFFERENCES BETWEEN TRESPASS, CONVERSION AND Detinue

1. Trespass is based on Possession; Conversion on ownership. Trespass differs from Conversion

in the measure of damages. Trespass assumes owner or person in possession remains owner.
Defendant's acts merely interferes with his possession. So, if the chattel is tendered back, the
owner must take it back and recover damages for the interference.

2. Conversion is an action In Personam. Detinue is an action In Conversion, assumes that the

defendant, by converting, has taken the ownership and deprived the owner of the chattel. So it is
a compulsory sale of the chattel to him. So the owner is not compelled to take it back when
tendered by the defendant.
3. In Detinue, the defendant is not allowed to say that he does not have the chattel any more.
Unless he can prove that its loss is not through his negligence.

4. Conversion and Detinue are the same in one respect - Demand and Refusal. Your choice will
depend on (1.) the nature of the economy and (2.) the relief your client wants.

If the client's interest is in getting the actual chattel back, then you sue in Detinue.

5. Where the goods appreciate in value, sue in Detinue because damages will be calculated as at
the date of judgment.

6. Where the goods depreciate in value, sue in Detinue because value will be calculated as at the
date of the conversion.

7. Trespass gives wider protection than Conversion because a mere interference without damage
is sufficient to found an action. But Trespass offers less protection than Conversion because of
the requirement of directness.

8. If client wants the chattel back and not its value, sue in Detinue because you can get an order
for restitution that is , return of the chattel.

CHAPTER 14

DEFENCES TO INTENTIONAL TORTS TO PERSON AND PROPERTY

MISTAKE AND INEVITABLE ACCIDENT

1. INEVITABLE ACCIDENT

This defence refers to actions where the defendant did not act either intentionally or negligently.
Sir Frederic Pollock said of inevitable accident: "An accident not avoidable by any sure cautions
as a reasonable man doing such an act there and then could be expected.

The onus of proving intention or negligence is today on the plaintiff.

In Fowler vs Lanning:

in an action for damages for trespass to the person, the plaintiff alleged simply "that the
defendant shot the plaintiff" and that by reason thereof the plaintiff sustained personal injuries
and suffered loss and damage.

The defendant pleaded that the statement of claim was bad in law and disclosed no cause of
action against him on the ground that it did not allege that the said shooting was intentional or
negligent.

The issue for determination was on whom fell the "onus of proof" of the negligent nature of the
shooting; the plaintiff or the defendant?

Held:

(1.) No trespass if the injury to the plaintiff, though the direct consequence of the act of the
defendant, was caused unintentionally and without negligence.

(2) Onus of proving negligence, for unintentional trespass, lies on the plaintiff. So the plaintiff
must allege either intention on the part of the defendant or plead facts which constitute
negligence.

Where the occurrence could not have been avoided by the exercise of reasonable care on the part
of the defendant, that is inevitable, then no trespass, if not done intentionally: see Letang vs
Cooper.

So that inevitable accident is not a defence as such but rather describes a situation where an
important element of trespass is missing.
John hits you with his car because of a defect in the steering wheel, which no amount of care
would have prevented. He will not be liable. For, in this case, he neither intended to do what he
has done nor could he have avoided doing so by taking precaution.

2. CONSENT :volenti non fit injuria

As a general proposition of law, anyone who consents to an act cannot complain of trespass:
volenti non fit injuria. Consent may be given expressly by words or inferred from conduct,
example.

1. a boxer cannot complain when he is hit in the ring.

2. Also a footballer cannot complain if he is kicked in a match; but if the opponent does
something completely out of the game, example gouging out the eye, no consent can be said to
have been given to that. Consent may also be established by proof of privilege.

The consent which will be a defence must relate to the act complained of. It must be freely given.
In the case of children, consent by parents or guardians will be enough. Consent may be vitiated
by fraud, where the fraud relates to the real act of the defendant. But this is not so where the
fraud merely relates to a collateral aspect of the defendant's act.

Hegarty vs Shine:

In this case the plaintiff and the defendant had been living for two years in a state of concubinage
and the defendant being infected with venereal disease, of which the plaintiff was ignorant, had
sex with and infected her with the venereal disease. In an action by the female plaintiff for:

1. breach of promise of marriage; and

2. battery against the plaintiff and infecting her with venereal disease, the trial judge directed the
jury that:

"As a matter of law, an assault implied an act of violence, committed upon a person against his
or her will and that as a general rule, when the person consented to the act, there was no assault.
But that if the consent was obtained by the fraud of the party committing the act, the fraud
vitiated the consent, and the act became, in the view of the law a battery.

And that therefore if the defendant knowing that he had venereal disease, and that the probable
and natural effect of his having connection with the plaintiff would be to communicate to her
venereal disease, fraudulently concealed from her his condition, in order to induce, and did
thereby induce her to have connection with him; and if but for that fraud she would not have
consented to have had such connection; and if he had with her the connection so procured and
thereby communicated to her such venereal disease, he had committed a battery, and one for
which they might on the evidence award substantial damages."

HELD:

It was held that this charge amounted to a misdirection. Sexual intercourse with the consent of
the female cannot be an assault. There was no deceit as to the nature of the act to be done, but a
lengthened cohabitation of the parties, and deliberate consent to the act or acts out of which the
cause of action had arisen.

On the facts, the plaintiff consented to have sexual intercourse with the defendant, who then, but
without her knowledge, was affected with venereal disease.

In law, the consent proved extends to both the act and its consequence.

The court said, An action is brought for trespass to the person. That is denied and accordingly the
plaintiff must show that a battery was committed. The evidence proves that the act was done by
the consent of the plaintiff and therefore that she was not assaulted. In order to avoid the consent,
she relies upon fraud. She asks the court to relieve her from the consequences of a consent which
she in fact gave.

This is not open to her, because if the contract be an immoral one, neither party can be allowed
to enter into the consideration for it, whether to sustain the cause of action or to avoid the
consent.

R vs Williams;

In this case, the appellant was the choirmaster at a Presbyterian Church. It was arranged that he
should teach two girls, (one 16 years, the other 19) singing and voice production. On two
occasions when he gave lessons, he had sexual intercourse with, the 16 year girl and, on two
other occasions, committed indecent assault on the 19 year old.
He was charged with rape, convicted and he appealed arguing that he ought not to have been
charged on the evidence with rape. The evidence established that on the first day, he told the
sixteen year old she was not singing as she should and was not getting her notes properly and
told her to lie down on a settee.

He then removed a portion of her clothing and placed upon the lower part of her body an
instrument which was defective anyway and could not have been affected by the girl's breathing.
He asked the girl to take a deep breath thrice. He looked at the instrument and purported to write
down something in a book.

He then dropped on her and proceeded to have sex with her. She asked: "What are you doing?"
He said:

"It is quite alright, do not worry. I am going to make an air passage. This is my method of
training. Your breathing is not quite right and I have to make an air passage to make it right.
Your parents know all about it, it has all been arranged; before God, Vera, it is quite alright. I
will not do you any harm."

With the second girl, on the same pretext, he fingered her saying he was making an opening for
the air to pass. The girl submitted, believing what he told her. She did not know what he did was
wrong; nor did she know he was sexing her that is having sexual intercourse with her. It was
held, dismissing the appeal, that the consent was fraudulently obtained. So no consent.

Consent obtained by show of authority, threat of force or actual application of force or duress,
undue influence or other inducement is not consent in law, example, a policeman or woman who
tells plaintiff to follow him or her to the station, has no defence, if plaintiff goes because of show
of authority. But if you consent because you think the person has a right to touch you, though it
turns out to be wrong, it is valid consent.

Latter vs Braddell:

The plaintiff was a housemaid of Mrs. B. On returning from holidays, Mrs. B accepted the
evidence of the chairwoman that the plaintiff was pregnant. The plaintiff denied that she was.
Mrs. B sent for the doctor to come and examine her. The doctor asked her to undress. She
protested and wept but took off her clothes and submitted to the examination. She was not
pregnant but was dismissed all the same. She sued Mr. and Mrs. B and the doctor.

At the trial, the judge withdrew from the jury the case against the Bs and the jury found in favour
of the doctor. The plaintiff obtained a rule nisi for a new trial. In the Common Pleas Division,
Lindley J upheld his own trial decision, Lopes J dissenting.

On appeal to the Court of Appeal, the Court of Appeal unanimously upheld the decision of
Lindley J (that is plaintiff lost). Bramwell, L.J., said:

"Very likely plaintiff thought defendants had a right to have her examined; but the truth is, she
submitted to it, and it is impossible to say the jury were wrong in finding that she submitted. She
may have submitted under an erroneous notion of law, but it was not through fear of violence.

The decision in this case is questionable because the impact of the employer-employee
relationship on the maid's supposed consent does not appear to have been given sufficient
consideration.

If the plaintiff is drunk or otherwise incapable of giving consent, he cannot give consent.

As noted earlier, consent must relate to the act complained of, example,

Beatty vs Illingworth:

But the law provides health delivery personnel with mere elbow room in this regard, as shown in
the above case.

The plaintiff who was being operated on for removal of a diseased ovary, instructed the
defendant surgeon: "If you find both ovaries diseased you must remove neither," to which he
replied, as she was going under the anaesthetic, "You may be sure I shall not remove anything I
can help.

He removed both ovaries, which were diseased, whereupon her fiancee refused to marry her.
Hawkins, J: directed the jury that they were still at liberty to infer her tacit consent, and they
accordingly found for the defendant.

This case only shows the law's willingness to be more liberal with doctors to enable them do
what they consider best for patients.

However as St. George's NHS Trust vs S shows, it is a trespass to operate upon a pregnant
woman who refuses to allow her child to be born by Caesarean section.

And in Airedate NHS Trust vs Bland, Lord Keith stated that instructions that a person, brought to
a hospital unconscious, does not want a surgical operation would be effective unless it was
thought not to cover the particular situation or that, if confronted with the reality of the situation,
he or she would change his or her mind.

The Court of Appeal stated:

"Where the patient has given an advance direction, before becoming incapable, treatment and
care should normally be subject to the advance directive. However, if there is reason to doubt the
reliability of the advance direction (e.g. it might sensibly be thought not to apply to the
circumstances which have arisen) then an application for a declaration may be made." Example,
a Jehovah witness involved with a note in his pocket against blood transfusion under any
circumstance.

3. SELF DEFENCE

For a defendant to succeed under this defence he must show that he committed the trespass in
order to:

(1) defend himself;

(2) that in the circumstances it was reasonable for him to do so; and

(3) that he used reasonable force.

In Codd vs Cabe:

Lord Bramwell held that no more force than was reasonable was used, and therefore there was
no trespass. But this is no licence for revenge. If after the first act of violence against a
defendant, there is no reasonable threat of further violence, a trespass will be actionable.

Cockroft vs Smith:

The plaintiff sued for trespass for assault, battery, and mayhemn. The defendant pleaded self
defence. It was admitted to be a good defence.

But it was argued that the act which was claimed to be in self-defence must not be
disproportional to the initial assault. Example for every assault, it is not reasonable to bang a man
with a cudgel.

The facts were that the clerk of a court sued an attorney for biting ofl' his forefinger in a scuffle
in court.

The evidence showed that the plaintiff first tilted the form on which the defendant sat. Then
second, the plaintiff ran his finger towards defendant's eye, who bit it off. Holt C.J. held that, in
itself, it was not a defence that the plaintiff first pointed his finger towards the defendant's eyes,
for a man must not "in case of a small assault, give a violent or unreasonable return."

What is reasonable force is a question of fact to be decided in each case. E.g. Street's example:

A pins Miss B to the wall and repeatedly kisses her against her will, and the only means by
which Miss B can compel A to desist is by lacerating his wrist with scissors. Does she have any
defence to an action of trespass by A?

4. DEFENCE OF THE PERSON OF ANOTHER

A servant may justify a battery in defence of his master and vice versa.
Barfoot vs Reynolds:

which was an action of trespass, assault and battery against Reynolds and Westwood. Reynolds
in his defence pleaded assault on his son, while Westwood pleaded that he was a servant to
Reynolds and that the plaintiff having assaulted his master in his presence, he, in defence of his
master struck the plaintiff. The plea was held ill, for the assault on the master might be over and
the servant cannot strike by way of revenge but in order to prevent injury.

The right way of pleading is that the plaintiff would have beaten the master if the servant had not
intervened.

Seaman vs Cuppledick:

was an action for assault and battery The defendant justified his action on the grounds that he
had acted in defence of his servant; that the plaintiff assaulted his servant and would have beaten
him but for his intervention. The court held:

"A man may use force in defence of his goods, if another will take them; and so if a man will
strike your cattle, you may justify in defence of them; and so a man may defend his son er
servant but he cannot break the peace for them: but if another does assault the servant, the master
may defend him and strike the other, if he will not let him alone."

Leward vs Basely :

an action for assault and battery on the wife of the plaintiff by the defendant husband and wife.
The defendant pleaded that the plaintiff first assaulted his wife. The plaintiff replied that the
defendant was going to wound her husband. To this the defendant demurred.

The court held that a wife might justify an assault in defence of her husband. So might a servant
of his master but not a master of his servant because he might have an action per quod servitium
amisit. If the defendant was holding his hand to strike the husband, the wife might make an
assault to prevent the blow.

These cases seem to limit the right to use force to members of one's family. But there is no
reason why we should read them so narrowly. A total stranger can also be defended against
felonious acts. We may support this point with the case of
Handcock vs Baker;

Here the plaintiff brought action for trespass to his house and assault on him as well as false
imprisonment. The defendants averred that they entered the house and took hold of the plaintiff
to prevent him from murdering his wife. It was held that this was justification enough, that is,
good defence.

DEFENCE OF ONE'S PROPERTY

A person may use reasonable force to defend land or chattel in his possession against any person
threatening to commit or committing trespass to the property. But if the threat is not imminent or
has passed, force is not justified. The principle is illustrated by:

Creswell vs Sirl;

In that case, the plaintiff's dog and another dog chased sheep in a field at night, and as a
consequence, several of the sheep aborted. The defendant, to whose father the sheep belonged,
went into the field and thinking the dogs were fierce and wild and that it would not be safe to
catch hold of them, shot and killed the plaintiff's dog, when it had left the sheep and was coming
towards him. The plaintiff sued for trespass to the dog.

The county court held that the defendant's defence failed because the dog had stopped attacking
the sheep at the time he shot it. The defendant appealed. The appellate court held that the test
applied by the county court judge was too narrow. The proper test, per Scott J. should be:

"The onus of proof is on the defendant to justify the preventive measure of shooting the dogs. He
has, by proof, to establish two propositions, but each proposition may be established in either of
two ways:

1. That at the time of shooting, the dog was either

(a) actually attacking the animals in question, or

(a) if left at large would renew the attack so that the animals would be left presently subject to
real and imminent danger unless renewal was prevented.

2.That either-

(a) there was in fact no practical means, other than shooting, of stopping the present attack or
preventing such renewal, or

(b) that the defendant, having regard to all the circumstances in which he found himself, acted
reasonably in regarding the shooting as necessary for the protection of the animals against attack
or renewed attack."

Bird vs Holdbrook:

is a further illustration of the principle. In this case, the defendant, for the protection of his
garden of flower-roots and tulips, some of which had been stolen, set a spring gun, without
notice, in a walled garden, at a distance from his house, with the express intention of catching the
thief.

The plaintiff who climbed over the wall in pursuit of a stray fowl was injured. It was held that
the defendant was liable in damages because the method used to protect the garden, that is the
spring gun, in the circumstances was not reasonable.

The explanation of this decision may lie in the fact that the use of force to protect interests in
property is harder to justify than use of force in self defence. So, if a guy is trespassing on your
land, you are not entitled to shoot him with an arrow, as a way of defending your land.

NECESSITY

One may justify a trespass on the grounds of necessity.

Mouse's case.

It was an action for trespass brought by Mouse for a casket and a hundred and thirteen pounds.
The facts were that the ferryman of Gravesend took 47 passengers into his barge to London,
among whom was Mouse. There was a big storm which threatened both passengers and luggage.
So the luggage were thrown into the water to save the men.

It was held:

(1) In case of necessity, for the saving of the lives of passengers, it was lawful for the defendant,
being a passenger, to cast the casket of the plaintiff out of the barge with the other things in it.

(2) If the ferryman should overload the ferry, it is a valid defence in such circumstances as above
for any passenger to cast things out of the barge and the ferryman will be liable to the luggage
owners for the loss of their goods for it was his fault. But where the danger is the result of an act
of God, that us storm, then everyone ought to bear his loss.

ABATEMENT OF NUISANCE

It is a defence to an action in trespass that it was to abate a nuisance: so it was decided in

Lemmon vs Webb:

In that case it was said that the owner of land which is overhung by trees growing on his
neighbour's land is entitled, without notice, if he does not trespass on his neighbour's land, to cut
the branches so far as they overhang, though they have done so for (a long time) more than
twenty years.

The facts were that the appellant and the respondent were adjoining landowners. On the
appellant's land near the boundary were several large old trees, whose branches overhung the
respondent's land and had done so for more than 20 years.

The respondent, without giving notice and without trespassing on the appellant's land, cut off a
number of branches to the boundary line. The appellant sued him, inter alia, for damages for
trespass. It was held per Lord Macnaghten:
"I think it is clear that a man is not bound to permit a neighbour's tree to overhang the surface of
his land, however long the space above may have been interfered with by the growth of the tree.

Nor can it, I think, be doubted that, if he can get rid of the interference or encroachment, without
committing a trespass or entering upon the land of his neighbour, he may do so whenever he
pleases, and that no notice or previous communication is required by law."

DISCIPLINE

Trespass might also be justified on the grounds that it was to discipline the person complaining
or on whose behalf the complaint is lodged, provided the force used is reasonable. The point may
be illustrated by the decision in

Ash vs Ash:

This was an action for assault, battery and false imprisonment. According to the facts, Lady Ash,
pretending that her daughter, the plaintiff, was troubled in mind, brought an apothecary to give
her physick; she was bound and would have been compelled to take physick and was confined
for about two or three hours. The jury gave her £2000 damages.

On a motion for a new trial because of the excessiveness of the damages, the motion was
granted. In other words, while it was agreed that trespass may be justified on grounds of
discipline, on this occasion the defence would fail because excessive force was used.

Ryan vs Fildes & Others:

the plaintiff, a schoolboy of 10 years, (attending a non-provided school) was by reason of

indiscipline boxed on the ear by his schoolmistress. As a result of the blow which was found not
to have been a violent one, the boy became deaf in one ear. The class in which the boy was
working at the time of the incident consisted of 46 boys. He sued for damages, for assault, that is
battery. It was held, per Tindal J, that he must succeed against Fildes. What she did exceeded
reasonable and proper punishment.
"The blow struck was moderate in the sense that it was not a violent blow, but, as punishment, it
was not moderate punishment, because not proper way of punishing a child to strike it on the
head or the ear.

"It appears by the Law of England, when a parent sends his child to school, he ... delegates to
teachers at the school the power to inflict reasonable and moderate corporal punishment when
required, in the same way as he, as parent, would have power to inflict moderate and reasonable
corporal punishment in a proper case and that he delegates to the teacher the taking of such steps
as are necessary to maintain discipline with regard to the child committed to the teacher's
care. ..."

In Hook vs Cunard:

Here, the plaintiff sued for damages for false imprisonment and indecent assault. It seemed that
he was confined on the allegations of the daughter of a passenger on a ship. The evidence did not
suggest that the captain of the ship believed in the allegation but confined the plaintiff to please
the passenger and to avoid unwelcome publicity.

It was held, per Slade J., that the master of a merchant ship is justified at common law in
arresting and confining in a reasonable manner and for a reasonable time any sailor or other
person on board his ship only if he has reasonable cause to believe, and if he does in fact believe,
that the arrest and confinement are necessary for the preservation of order or discipline, or for the
safety of the vessel or persons or property on board. This ruling, it must be noted, will apply
equally to the driver of a vehicle or the pilot (captain) of an aircraft or train conductor etc.

Lane vs Holloway. Is contributory negligence a defence to trespass? Yes, in Barnes vs Nayer."

CHAPTER 15

NUISANCE

Nuisance may take one of two forms, a public or private nuisance. Public nuisance protects
public health, decency, convenience and safety.
This in reality is a crime and is taken care of in sections 285-298 of the Criminal Offences Act,
1960 (Act 29). It covers matters such as:

1. selling unwholesome food;

2. hindering burials;

3. carrying on a noxious trade;

4. drunken, riotous or disorderly conduct;

5. throwing rubbish in the streets; and

6. displaying one's naked body in public.

PUBLIC Nuisance was explained in:

Attorney General vs P.Y.A. Quarries Ltd :

In this case, the quarry owners so conducted their operations that neighbouring householders
were discomfited by vibrations from explosions and by the dust which emanated from the quarry
in dry weather. There was evidence that nuisance from the vibration and dust could be avoided
by the exercise of proper care.

HELD:

It was held that the vibrations and dust were a public nuisance and an injunction had been
properly granted to restrain the quarry owners from carrying on their business in such a manner
as to occasion a nuisance to her majesty's subjects by dust or by vibration.

Here Lord Denning said that: "public nuisance must be referable to the generality of Her
Majesty's subjects. So widespread in its range, so indiscriminate in its effects that it becomes the
responsibility of the whole community." So an act becomes public nuisance when its effect is on
the public as a whole rather than on one individual.

In other words, public nuisance is nuisance which

1. affects the public generally;

2. is widespread in its range, and

3. is indiscriminate in its effects that is does not affect one person only.

RELEVANCE IN THE LAW OF TORTS

An individual can sue in public nuisance, only if that individual can show that he has suffered
damage over and above that suffered by the public, example if you go and buy food and contract
cholera, you can show you have suffered damage over and above the public and so you must be
able to claim.

In Southport Corporation vs Esso Petroleum;

the defendants' tanker ran aground in the Ribble estuary and to save life aboard, the master
lightened the ship by jettisoning a large quantity of oil. This oil was carried onto the plaintiffs'
beach and they spent a great deal of money to clear it. The trial judge gave judgment in favour of
the defendants on the ground that the plaintiffs had failed to prove negligence. This was
approved on appeal to the House of Lords. In the House of Lords, Lord Denning said that the
term public nuisance covers a multitude of sins, great and small.

Public nuisance is not dependent on user of land unlike the action under the Rule in Rylands vs
Fletcher.
Both private and public nuisance are based on annoyance and inconvenience. In other words, the
constituent elements are conceptually the same. The difference between them lies in the degree
and range of exposure to the act constituting the nuisance..

PRIVATE NUISANCE

Private nuisance lies in general for indirect non-trespassory interference being an action on the
case. A defendant is guilty of private nuisance, if he does an unreasonable act which either:

1. indirectly causes physical injury to land, or,

2. substantially interferes with another's use or enjoyment of his land or of an interest in land or
both.

The crux of nuisance then is unreasonableness of conduct. Consequently, problems in nuisance

really turn on reasonableness. In determining the reasonableness, the courts look at both the
defendant's conduct and its effect on the plaintiff. Note however that when interference is alleged
with a plaintiff's enjoyment, the surrounding circumstances are relevant, but not so relevant when
the alleged interference is with material injury to property.

Some common forms of private nuisance are:

1. noise - excessive tolling of church bells;

2. pestilential smells;

3. vibrations; and

4. escaping fumes from factories.

Private nuisance represents a balancing of conflicting interests, (example taxi horns, radio
music), and the courts are principally concerned with the mutual adjustment of rights.

Living in close communities as we do nowadays, one has to put up with a reasonable degree of
nuisance.

Bamford vs Turnley:

Those acts necessary for the common and ordinary use and occupation of land and houses may
be done, if done reasonably without risking an action in nuisance example burning weeds,
emptying cesspools and making of noise during repairs." How about excessive noise during
sexual intercourse.

Fact:

Plaintiff complained of the smoke and smell arising from the burning of bricks by the Defendant
on his land not far from the Plaintiff’s house. Evidence submitted at trial indicated that the kiln
operation was a temporary one, engaged in for private purposes and that Defendant operated the
kilns as far as possible from his neighbor’s property. At trial, the judge concluded that, as the
location of the kilns was sufficiently removed from Plaintiff’s property and that the operation
was a reasonable use upon private land. He found for Defendant, and Plaintiff sought review.

Facts 2

The defendants burnt bricks in a kiln and this sent noxious fumes to the surrounding country,
affecting various neighbours. It made them and their servants ill. They sued to prevent the
nuisance.

At first instance it was held that the brick smoke was reasonable because the defendant had only
been using the kiln in order to build a home.

Issue:
Is it a defense to say that Plaintiff was using land in a reasonable manner?

Held:

The court reversed the lower court’s ruling, stating that a Defendant’s use of land, even if private
and for beneficial use, is not justification for the infringement on his neighbor’s rights.

Discussion:

Bamford is an early case raising some of the issues typically surrounding private nuisance
claims. Nuisance arises from an allegation of injury to person or property. The injury need not be
physical; it can include injury to rights, property enjoyment, or “quality of life” issues. The law
of nuisance recognizes two distinct categories of claims: private nuisance and public nuisance.

Bamford, as noted, is a case of the former, when a nuisance interferes with another’s current
possessory or beneficial interest in the use or quiet enjoyment of land. As the court stated, “those
acts necessary for the common and ordinary use and occupation of land and houses may be done,
if conveniently done, without subjecting those who do them to an action.

The court reasons, however, that part of the expense of private land use is the compensation to
others who may be damaged in the process, and the actor would then be liable for compensation.

Sedleigh-Denfield vs O'Callagan:

the boundary between the appellant's premises and those of the respondents was a hedge and a
ditch, both of which belonged to the respondents. Without informing the respondents, a
trespasser laid a pipe in the ditch and some three years later, when this pipe got blocked, the
appellant's garden was flooded.

It appeared that one of the respondents' servants had cleared out the ditch twice yearly. The
appellant claimed damages in nuisance.

It was held that he would succeed because the respondents who knew or ought to have known of
the existence of the nuisance, permitted it to continue without taking reasonably prompt and
efficient action to abate it.

In that case, the flooding was considered as going beyond what the appellants could reasonably
be expected to endure and so it was nuisance.
In determining whether an act is unreasonable and therefore constitutes private nuisance, the
courts take certain factors into account. These factors are:

(1.) The purpose of the defendant's conduct:

mental state If the defendant's primary object in doing an act is to injure his neighbour, or
interfere with the neighbour's use and enjoyment of his land or an interest therein or cause his
neighbor discomfort.. then that conduct is in law unreasonable and thus constitutes private
nuisance.

Christie vs Davey:

the parties lived in semi-detached houses. The plaintiff gave music lessons and held musical
parties in his house, which annoyed the defendant considerably. Maliciously and for the purpose
of vexing and annoying the plaintiff, the defendant blew whistles, knocked on trays or boards,
hammered, shrieked and shouted, when lessons or parties were in progress in the plaintiff's
house.

It was held that the interference could be restrained by injunction, but it would be otherwise, if
both parties had been perfectly innocent, that is if the interference had been merely coincidental.
This means if a defendant does what he is reasonably expected to do, even if maliciously, he will
not be liable, even if his conduct injures his neighbour.

This was the basis of the decision in Bradford Corporation vs Pickles:

Here the appellants owned water works and the respondent owned land from which water flowed
naturally on to the ground from which the appellants enjoyed a valuable supply of water.

The defendant commenced operations on his land, which had the effect of discolouring and
diminishing the appellant's water supply and they sought an injunction to restrain his harmful
activities which, they alleged, were actuated by malice and with a view to inducing them to buy
the land. It was held that the injunction would not be granted because the respondent's action was
lawful and, no matter how ill his motive might be, he had a right to act as he did.

(2. Suitability of the locality

The law realises that it is governmental policy to divide up land for various uses. The courts
sometimes to determine whether conduct is a nuisance consider whether a defendant is carrying
out his activity in a place suitable or designated for it. So it may well be a nuisance to set up a
factory in a residential area or set up a stable there or use residential area for prostitution.

Thompson-Schwab vs Costaki:

In that case, the plaintiff lived in a good residential street in the West End of London and the
defendants used a home in the same street for the purposes of prostitution. It was held that this
was prima facie evidence of nuisance, as having regard to the usages of civilised society and to
the character of the neighbourhood, the defendant's activities amounted to an unreasonable
interference with the comfortable and convenient enjoyment of the plaintiff's residence and an
interlocutory injunction was granted to restrain it. Or using premises as a sex shop, see Laws vs
Florinplace Ltd.

On persistent unwanted phone calls see Khorasandjias v Bush.

Aidoo vs Adjei:

held that it is nuisance to operate a chop bar near a residential area.

In Ball vs Ray:

it was held that keeping horses in a residential area was actionable nuisance.

But, in:

Moy vs Stoop:

a day nursery was set up in a residential area with its children weeping. It was held that, prima
facie, the crying of the children was not actionable nuisance, but if it can be proved that the
children cry as a result of neglect, then it may be actionable nuisance.
What about cockerels crowing at ungodly hours? This question is important because of the
keeping of poultry in homes these days.

In Leeman vs Montagu:

the plaintiff bought a house in an area which was partly rural, but largely residential. In an
orchard which was about 100 yards from the house, the defendant kept some 750 cockerels
which were in the habit of crowing from 2 a.m. until 7 or 8 a.m.

This noise made it impossible for the plaintiff to sleep.

HELD:

It was held, that a nuisance had been proved and the plaintiff was entitled to an injunction to
restrain the defendant from carrying on the business of poultry breeder in this manner. On the
question of the importance of sleep, see also Halsey vs Esso Petroleum.

Sturges vs Bridgman:

a confectioner and a physician occupied adjoining premises. In connection with his business for
more than 20 years, the confectioner used two large pestles and mortars and the noise and
vibrations did not seem to the physician to be a nuisance until he built a consulting room at the
end of his garden against the wall of the confectioner's kitchen in which the pestles and mortars
were operated.

The physician sought an injunction to restrain the use of the pestles and mortars in such a manner
as to cause him annoyance.

It was held that he would succeed. The confectioner could not claim that he was protected by
prescription, since until the consulting room was built there had been no actionable nuisance.

This decision may also be explained in terms of the unarticulated value the court gave to the
physician's service to society as compared to that of the confectioner. When it is alleged that
conduct interferes with plaintiff's enjoyment or use of his land or an interest in it, the surrounding
circumstances are considered relevant.

But this is not so, when an alleged interference causes material injury or damage to plaintiff's
property.
Thus in Abotchie vs Saad;

the suitability of the locality for the defendant's trade was considered by Justice Crabbe as of
great importance. The plaintiffs complained that the defendant installed vibrating machine which
emitted offensive smells.

Because of the plaintiff's complaint the machine was removed only to be reinstalled later. The
defendant turned deaf ears to all the plaintiff's complaints.

The court held that as the defendant had not proved or adduced evidence to show the suitability
of the locality for his activity, he was not liable and an injunction was granted against him.

NATURE OF USE TO WHICH DEFENDANT PUTS LAND

Generally, natural user is not per se conclusive as to reasonable use (Note that, unlike Rylands vs
Fletcher, the defendant can put his land to non-natural use so long as his conduct is reasonable).

Thus in Matania vs National Provincial Bank:

temporary noise and dust caused by alterations being made to a building were held to be a
nuisance since the interference was substantial. This case also shows that the duration of the
unreasonable conduct is not conclusive. It could be nuisance even if only temporary. Where
conduct is inevitable but could be mitigated, it will be held to be unreasonable if not mitigated.

In C.F.C. Construction Ltd. vs A.T.C.C:

the plaintiff brought an action to restrain the defendants or their agents from continuing or
repeating nuisance by dumping garbage and refuse which emitted pestilential smells in a quarry
adjoining their properties. Justice Crabbe found, as a fact, that the garbage dumped emitted
pestilential smells which amounted to actionable nuisance.

AUTHORISED ACTS -- STATUTORY DUTIES

Can nuisance lie against one under a statutory duty? The law is that where one operates under a
statute, one must use reasonable care. Therefore, theoretically, a person operating under a statute
may be liable in nuisance.

A case in point is:

Manchester Corporation vs Farmworth;

There a farmer, the respondent, sought damages and injunction against the appellants on the
ground of nuisance. The respondent alleged that poisonous fumes were emitted from the
chimneys of a generating station erected by the appellants in pursuance of powers conferred by
statute.

It was held that the appeal would be decided in favour of the respondent as the appellants had not
shown that they had used all reasonable diligence in preventing their generating station from
creating a nuisance. Thus, it is clear that the common law does not override the statute.

It simply requires that for a person discharging a statutory duty to escape liability, the person
must prove that he or she has carried out the task reasonably.

NATURE OF THE DAMAGE

As Lord Reid said in Wagon Mound (No. 2) :

recovery of damages in private nuisance depends on foreseeability by the defendant of the

relevant type of damage.

Being an action on the case and not a trespass, proof of damage is necessary. Damage may fall in
one or other or both of the following categories:

(1) it may be a material injury to property; or

(2) personal discomfort or inconvenience. What is the distinction between sensible material
interference with the plaintiff's property and personal discomfort or inconvenience? The
distinction is discussed hereafter.
In St. Helen's Smelting Co. vs Tipping;

the plaintiff bought an estate consisting of about 1300 acres near to the defendant's copper
smelting works. The vapour from the works proved injurious to the plaintiff's trees and crops and
he claimed to be entitled to damages.

HELD: It was held that the plaintiff would succeed.

That the jury was correctly directed that an actionable injury was one producing sensible
discomfort and that every man, unless enjoying rights obtained by prescription or agreement,
was bound to use his property in such a way as not to injure that of his neighbour. The law was
not concerned with trifling inconveniences and everything had to be considered from a
reasonable point of view. Here suitability of the locality is held to be no defence if there is proof
of sensible injury to property. That is locality is not a relevant factor where property damage is
concerned.

THE BASIC PRINCIPLES FOR PHYSICAL INJURY TO PROPERTY THEN ARE:

1. Proof of sensible damage to property;

2. injury must be substantial; and

3. the injury must have diminished the value of the property.

If (3) is proved, it is irrelevant to plead suitability of the locality. As to the meaning of material
injury the courts have not decided whether the test is scientific or ordinarily by reference to the
custom of the trade, but see Hunter vs Canary Wharf." Property is not defined either. In practice,
however, the courts consider the suitability of the locality relevant:
(b) Substantial interference with enjoyment (Personal discomfort or inconvenience)

Where the complaint is in respect of personal discomfort, then such interference must be
substantial. The plaintiff, however, need not prove actual injury to health; in fact, the loss of one
night's sleep is sufficient. However, it is not nuisance merely to operate a power station near a
church.

In Heath vs Brighton Corporation:

the plaintiffs, the incumbent and trustees of a church, sought an injunction to restrain the alleged
nuisance caused by the defendant's electricity works which were in the immediate vicinity of the
church. It was not alleged that the low hum or noise of the machinery had led to a diminution of
the congregation; the only person who was personally annoyed was the incumbent. But he was
not prevented from preaching or conducting the accustomed services. It was held the plaintiffs
had not shown a sufficiently serious annoyance to entitle them to the injunction which they
claimed.

Interference may be substantial even though temporary:

Matania vs National Provincial Bank:

Here, dust and temporary noise were held to be a nuisance.

Under this head of damage the courts hold the suitability of the locality as important. Nowadays,
the courts are developing a doctrine whereby a defendant guilty of a situation likely to cause
injury is likely to answer in nuisance.

In Bolton vs Stone:

during a cricket match, a batsman drove a ball out of the ground and it hit and injured the
plaintiff. The ball traveled nearly a 100 yards and cleared a protective fence which was, in effect,
17 ft. above the cricket pitch and 78 yards from the striker. There was evidence that the ball had
been hit out of the ground on some six occasions during the last 30 years. It was held the plaintiff
was not entitled to damages either in negligence or nuisance as the probability of such an injury
would not be anticipated by a reasonable man.

Who CAN SUE IN NUISANCE?

The law is that one who has proprietary or other interest in the land may sue. The owner can sue,
if he has possession as well as the tenant. However, a reversioner can sue only if he can show
that his proprietary interest in the reversion has been permanently interfered with. It is doubtful
though if a person who is merely in occupation can sue.

In Malone vs Laskey:

the defendants let a house to a tenant who sub-let it to a company, whose manager resided on the
premises with his wife, the plaintiff. The defendants were not liable to do repairs to the house,
but, following complaints to the defendants, they sent two men to put an iron bracket underneath
a water tank in the lavatory. Three months later, due to vibration from machinery in the
defendant's premises adjoining the house, the bracket fell upon and injured the plaintiff. It was
held that the plaintiff was without a remedy. Here, the plaintiff failed because she was in
occupation but had no interest in the land.

However, in Moss vs Christchurch Rural Council:

a spark flew from the defendant's steamroller (as it was at the material time it constituted a
nuisance) and the resulting fire destroyed the plaintiff's cottage which was let to a weekly tenant.
It was held that the plaintiff could recover the difference between the money value of his interest
in the property before and after the fire, not the cost of rebuilding. It must be noted that in the
above case title was not discussed.

WHO CAN BE SUED?

Generally, it is the one (although he may have given up possession) who commits the nuisance,
even if done through servants or agents. He is liable for the acts of independent contractors only
if the act done is one which, in its very nature, involves a special danger of the nuisance being
complained of.

In Bower vs Peate:

the parties owned adjoining houses and the defendant employed a contractor to pull down his
and rebuild it. The contractor failed to provide sufficient support during the excavation of the
foundations and the plaintiff's house was damaged. Cockburn C.J. laid down a test for this. His
test has been criticised as being too wide. The occupier is liable for nuisance by the independent
contractor, if from the instructions he gives, a nuisance was likely to occur.

Acts OF TRESPASSERS (FAILURE TO REMEDY)

The House of Lords settled this in Sedleigh-Denfield vs O'Callaghan:

The rationale here is that an occupier of land continues a nuisance if, with knowledge or
presumed knowledge of its existence, he fails to take steps to bring it to an end, when he has
ample time for doing so and adopts it if he makes use of the structure causing a nuisance.

It was held in:

British Road Services vs Slater:

that a branch of a tree on a land by the road was a continuing nuisance although the defendants
were absolved on the grounds that the defendants having inherited the nuisance were not liable
for the consequences of failing to remedy it until they were aware that it was a nuisance or with
ordinary and reasonable care, should have become so aware.

In Tarry vs Ashton:

the defendant was in occupation of a house from the front of which a heavy lamp projected over
the pavement. As the lamp was becoming dangerous, the defendant employed an independent
contractor to repair it. Nevertheless, as a result of the contractor's negligence, the lamp fell down
and injured the plaintiff. It was held that the plaintiff was entitled to damages as the defendant
was in breach of his duty to make the lamp reasonably safe.

Prima facie therefore the defendant is not liable if he did not create the nuisance. But, if, in
entering the premises, he knew or ought to have known of it, then he is liable. This applies to
patent and latent nuisances. But, even though a nuisance is patent to the eye, when a landlord
enters the premises, he will not be liable if it can be shown that no reasonable man would have
considered it as a nuisance.

PERSONAL INJURIES

These are recoverable in respect of public nuisance. Private nuisance has no authority, but, in
principle, where there is damage to the person as well as property, then such consequential
damage ought to be recoverable especially as this is an action on the case.

DEFENCES TO NUISANCE

1. PRESCRIPTION: This lies where a defendant can show that he has acquired a right to commit
the nuisance. To acquire this rights he must have committed it for at least 20 years before the
action; he must have done it openly, without a show of force, and without the plaintiff's
permission: the maxim is "nec vi, nec clam, nec precario. However, this defence is not available
in respect of public nuisance. The 20 years need not be continuous.

Consent: Must not be induced by fraud or undue influence etc:

2. STATUTORY AUTHORITY: (a complete defence) This must be done reasonably though: see
Northwestern Water Board vs Department of Transport;" if a statute authorised an activity, then
the defendant will not be answerable for inevitable interference. But it is for the defendant to
prove inevitability.

In Haley vs London Electricity Board ;

the appellant, a blind man, on his way to work tripped over a long handled hammer which the
respondents had leaned against a railing to protect pedestrians from an excavation which they
had made. There was no negligence on the part of respondent and the defendants were found to
have given adequate warning to people with good sight. It was held that:

"since it was reasonably foreseeable that blind people will pass that way, the defendants had
failed to discharge their duty to take reasonable care not to act in a way likely to injure any
person who may reasonably be expected to walk along the road. Lord Guest said there is... no
authority... which would compel one to take the view that the obligation of those responsible for
the safety of foot pavements is restricted to those persons who have normal sight... they must
have regard to all road users, which includes the blind and other persons.

1. ABATEMENT OF NUISANCE

It is in reality a defence to trespass to land, where the defendant can show that he committed the
trespass to abate a nuisance to him.

In Lemmon vs Webb:

without giving notice to the appellant and without trespassing on his land, the respondent cut off
some branches of the appellant's trees, which were overhanging his soil. It was held that the
respondent was entitled to do this.

But abatement is a remedy which the law does not favour and the House of Lords said that if
there are two ways of abating a nuisance the less mischievous is to be followed.

REMEDIES

These are three:

1. damages,

2. injunction and
3. abatement.

But it must be borne in mind that injunction is a discretionary remedy which the court can refuse
to grant, even though the plaintiff proves his case.

The plaintiff is entitled to compensation for the damage he has suffered as a result of the
nuisance. Thus he may recover for:

1. physical damage to his property,

2. depreciation in the value of his property; and

3. loss of business from the nuisance and

4. personal injuries and (4) general damages for substantial interference with the plaintiff's use of
his land or an interest in it.

Where the nuisance is a continuing one, the award of damages in one action for nuisance does
not bar subsequent actions.

CHAPTER 16

RYLANDS vs FLETCHER

The rule known by this case is considered one of the most important surviving cases of absolute
or strict liability in Torts. One, in fact, of the leading examples of circumstances in which the law
says a person acts at his own peril, that is the law holds you liable for harm caused by your act
whether you did it intentionally or negligently 'without fault. The rule was laid down by
Blackburn J in the case of
Rylands vs Fletcher:

In that case, the defendants owned a mill run by water. In order to improve the water system,
they employed a firm of contractors to build a reservoir on their land. The defendants took all the
care in appointing the contractors. The contractors, however, failed to exercise due care and
certain old shafts which led to the mines of the plaintiff were not blocked.

When the reservoir was filled with water, the water sipped through these shafts and flooded the
mines of the plaintiff causing considerable damage. Delivering the judgment of the Court of
Exchequer Chamber which held the defendants liable, Blackburn posed a question and in answer
laid down the rule in the following words:

"What is the obligation which the law casts on a person who, like the defendants, lawfully brings
on his land something which, though harmless whilst it remains there, will naturally do mischief
if it escapes out of his land.?

We think that the true rule of law is that the person who for his own purposes bring: on his land
and collects and keeps there anything likely to do mischief if it escapes, must keep it 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."

The defendants appealed to the House of Lords. The appeal was dismissed. But, in the process,
the House of Lords narrowed down the principle or rule as laid down by Blackburn.

Lord Cairns, in the House of Lords, qualified the generality of Blackburn's language by saying
that the use to which the person was putting his land must have been "a non-natural user of the
land.

At first, it would appear that Lord Cairns' qualification to Blackburn's rule is in effect a new rule.
But, on a closer analysis, it seems fair to say that his qualification softens the rigour of the
original rule and turns a rigid rule into a flexible yardstick which enables the courts, by
determining what is natural and non-natural user, to inject their view of the economic and social
needs of the moment into the application of the rule.

The rule as qualified (or subverted) by the House of Lords is stated thus: "A person who, in the
course of a non-natural user of his land, accumulates or is held to be responsible for the
accumulation on it of anything which he knew is likely to do harm if it escapes, is liable for the
damage to the use of the land of another, which results from the escape of the thing from his
land."

The rule was developed at a time, when as a result of the change from an agricultural to an
industrial society, the law was already moving away from strict liability. It has therefore been
suggested by some writers that the rule simply illustrates the attachment of the English courts to
interests in land. But to take the explanation from Blackburn J. himself:

"The general rule, is above stated, seems on general principle just. The person whose grass or
corn is eaten by the escaping cattle of his neighbours, or whose mine is flooded by the water
from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy or
whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali
works is damnified without any fault of his own; and it seems but reasonable and just that the
neighbour, who has brought something on his own property which was not naturally there,
harmless to others so long as it is confined to his own property, but which he knows to be
mischievous if it gets on his neighbour's, should be obliged to make good the damage which
ensues if he does not succeed in confining it to his own property.

As was noted in,

Cambridge Water Company Ltd. vs Eastern Counties Leather plc:

the general tenor of Blackburn J's statement of the principle is that knowledge or at least
foreseeability of the risk is a prerequisite to the recovery of damages. But that the liability is
strict in the sense that the defendant may be held liable, even though he has exercised 'the due
care to prevent the escape.

Cambridge Water Company vs Eastern Counties Leather

Facts:

The Defendants were engaged in leather tanning at Sawston. During their work, as a result of the
process of degreasing pelts, small quantities of a solvent known as Perchloroethene (PCE) was
spilt on the floor of the building in which the Defendants carried out their activities. These
solvents eventually seeped through the building floor and into the soil, which eventually meant
that they contaminated the Claimant’s borehole at Sawston Mill near Cambridge, some 1.3 miles
away. The borehole was used to extract and supply water to local residents and consequently this
meant that the water available for extraction as contaminated and to such a degree that it could
not be safely used by the Claimants. The Claimants brought a claim against the Defendants on
the grounds of nuisance, negligence and the rule in Rylands vs Fletcher.

Issues

The issue in the case was whether the rules for remoteness of damage and foreseeability of the
type of damage caused apply to cases involving the rule in Rylands vs Fletcher and nuisance in
the same way they do for negligence cases.

Decision / Outcome

It was held that the necessity to prove foreseeability of the type of damage suffered and to deal
with remoteness of damage more generally applies equally to cases based on negligence,
nuisance and the rule in Rylands vs Fletcher. It was held further that the damage in this case was
too remote as it was not possible for the Defendants to reasonably foresee a spillage which would
eventually lead to contamination of a water borehole so far away. The Defendants were therefore
not liable for the damage.

WHAT IS A "NON-NATURAL USER" OF THE LAND?"

The Privy Council had occasion to determine what "non-natural user" means in the case of

Rickards vs Lothian:

In this case, the plaintiff-respondent was the tenant of the second floor of premises belonging to
the defendant-appellant. He suffered damages as a result of an overflow of water from a lavatory
basin situated on an upper floor of the same premises. This was caused by the water-tap being
turned on full and the waste pipe 'plugged, as found by the jury, "by the malicious act of some
person." At the County Court at Melbourne, liability was upheld. The defendant appealed and the
County Court decision was reversed by the Supreme Court of Victoria.

A further appeal was made to the High Court of Australia which restored the County Court's
decision. And a further appeal was made by the defendant-appellant to the Privy Council.
Negligence having been negatived, the Privy Council considered the applicability of Rylands vs
Fletcher to the facts and said:

"It is not every use to which land is put that brings into play that principle. It must be some
special use, bringing with it increased danger to others, and must not merely be the ordinary use
of the land or such use as is proper for the general benefit of the community. "

On the facts of the case, the Privy Council said:"The provision of a proper supply of water to the
various parts of a house is not only reasonable, but has become, in accordance with modern
sanitary views, an almost necessary feature of town life. It is recognized as being so desirable in
the interests of the community that, in some form or other, it is usually made obligatory in
civilized countries.

Such a supply cannot be installed without causing some concurrent danger of leakage or
overflow. It would be unreasonable for the law to regard those who install or maintain such a
system of supply as doing so at their own peril, with an absolute liability for any damage
resulting from its presence even when there has been no negligence.

As has been observed already, the non-natural user qualification enables the courts to adapt the
rule to changed circumstances. Compare for this purpose the following two cases of performance
of public duty, on the question of putting land to non-natural use:

(1.) Carrying on an industrial duty is not putting land to non-natural use in an industrial society:
Read vs Lyons;"

2.) In Rainham Chemical Works Ltd. vs Belvedere Fish Guano Company:

manufacture of ammunition during war time held not to be non-natural use of the land. Doubt
was expressed by Viscount Simon about the correctness of Rainham's case in the Read vs
Lyons.

To summarise on non-natural user, from the cases, it means:

1. Special use of the land.

2. Which use brings with it increased dangers, and

3. It must not be the ordinary use or use for the general benefit.

Over time, the concept of natural use, in the sense of ordinary use, has been expended to embrace
a wide variety of uses, including not only domestic uses but also recreational uses and even some
industrial uses. Per Lord Goff .

WHAT ARE "THINGS" WITHIN THE RULE

This refers to anything likely to cause injury, if it escapes. It means that the thing need not be
dangerous in itself but must have the character of causing damage to your neighbour's property if
it escape. It need not necessarily be the thing which was accumulated on the land. Things so far
held within the rule:

1. electricity;

2. gas;

3. water;

4. explosives; and

5. fire:
In Attorney-General vs Corke:

it was held that the owner of land who allowed caravan-dwellers to live on it was liable in
Rylands vs Fletcher for interferences which they caused on adjoining land. Thus, here, human
beings were held to be "things" within the Rule. It seems fair also to assume that only tangible
things are likely to come under this rule.

ACCUMULATION

Justice Blackburn talked of "a person who, for his own purposes brings, collects and keeps there
the thing that caused the mischief." This means that the rule will not apply to things which
accumulate or grow on the land naturally.

The Rule was in issue in the Ghanaian case of:

Dublin vs Ghana Housing Corporation:

In this case, the plaintiff and defendants were neighbours in a low lying area surrounded by hills.
After rains, water rushed down from the hills. To prevent its estate from being flooded, the
defendants constructed gutters on their land to divert the course of the water and thus prevent the
estate from being flooded.

The plaintiff whose property was lower down the line than that of the defendants took no such
precautions. As a result, the water flooded her house and her tenants moved. She sued the
defendants first for trespass but subsequently amended her claim to include liability under the
Rule.

The action failed under the Rule because, according to the trial judge there was no evidence that
the defendants at any time accumulated water anywhere on their property.

ESCAPE
There must be an escape of the thing. The escape which will satisfy the rule was explained by
Viscount Simon in

Read vs Lyons;

In that case, the plaintiff-appellant was injured in an explosives factory, while on an inspection
duty, by a high explosive shell during the process of manufacture. There was no allegation of
negligence on the part of the defendants who were operating the factory under a contract.

It was held that there was no liability under Rylands vs Fletcher because there had been no
escape of a thing from their premises and the rule would not apply because of the absence of an
essential condition for its application. Viscount Simon explained that escape means: "Escape,
for the purpose of applying Rylands v Fletcher, means escape from a place where the defendant
has occupation of or control over land to a place which is outside his occupation or control." This
serves as a further check on the application of Rylands vs Fletcher.

This condition is further illustrated by Ponting vs Noakes.:

A horse reached over the defendant's land and ate of a yew tree's leaves and was poisoned. It was
held that Rylands vs Fletcher did not apply because the tree did not extend beyond the
defendant's land and so there was no sufficient escape.

EXTENT OF DEFENDANT'S LIABILITY

Unless the thing escaping causes damage, no action will lie under the Rule. The defendant is
liable for any injury to land as a result of the escape of the thing as well as consequential
damage.

In Jones vs Festimog Railway Company:

a claim was allowed where sparks from a railway engine set fire to haystack on the plaintiff's
land under the Rule.

And also in Musgrave vs Pandelis," damage to the plaintiff's furniture caused by escaping fire
was held recoverable.
ANY SPECIAL CAPACITY FOR PLAINTIFF?

But it must be remembered that, in both cases, the plaintiffs were occupiers of the land. So is the
action available only to occupiers of the land to which the thing escaped? Indeed, Lord
Macmillan seems to be emphasising the interest of the plaintiff in the land as a basis of the
liability when he said in Read vs Lyons ;

that we must remember that Rylands vs Fletcher derives from a conception of mutual duties of
adjoining or neighbouring landowners and its congeners are trespass to land and nuisance.

Can a plaintiff who is not an occupier recover for injuries to chattels or person?.

In Halsey vs Esso Petroleum;

it was held that the plaintiff could recover on Rylands vs Fletcher principles for injury to his car,
though the car was stationed on the highway and not on the plaintiff's land.

In Weller vs Foot & Mouth Disease Research Institute:

doubt was expressed which suggests that a plaintiff with no proprietary interest in the land on to
which the thing which caused the damage escaped, cannot recover. It is a reasonable reading of
the case law to conclude that, as with private nuisance, an action under the Rule is concerned
with neigbouring occupiers only.

TYPE OF INJURY RECOVERABLE

In Read vs Lyons," the House of Lords, in an obiter, cast considerable doubt on whether a
plaintiff can recover for personal injuries as distinct from injury to land or chattels However, we
can say here that the Court of Appeal has decided in Hale vs Jennings Brothers" that an occupier
can recover in respect of personal injuries. Here a tenant of a stall at a fair suffered personal
injuries as the result of the escape of a chair-o-plane of the defendant. It was held that Rylands vs
Fletcher applied and she should recover.

Attraah vs Aboah; the case shows how the Rule can be useful to the Ghanaian community in the
face of some of our farming methods.

DEFENCES TO AN ACTION IN RYLANDS vs FLETCHER

To start with, reference can be made to Blackburn J in Rylands vs Fletcher." There he said: "He
[i,e, the defendant] can excuse himself by showing that the escape was owing to plaintiff's
default; or, perhaps, that the escape is the consequence of Vis Major, or the act of God." This
sentence contains three possible defences, namely,

1. Defendant's Fault,

2. Vis major or force majeur, and

3. An act of God.

CONSENT-Voluntarily Given. Volenti non fit Injuria

If the plaintiff expressly or impliedly consents to the accumulation of the thing which escapes,
then he cannot sue if it escapes. So, before a plaintiff can recover, where consent is proved, then
he must establish negligence, that is bring his action in the tort of negligence. The decisions on
this defence are all well reviewed in Peters vs Prince of Wales Theatre.

THE Act OF THIRD PARTIES

Liability is excluded if the escape is caused by the deliberate unforeseeable act of third parties.
But, if the defendant could have foreseen or prevented, the act of the third parties and did not,
then he is liable:

In Box vs Jubb.:

In that case, the defendants were held not liable for damage done through an overflow from their
reservoir, because the overflow was caused by an act of a third party who emptied his own
reservoir into the stream which fed the defendants' reservoir.

Act OF GOD

If an escape is caused, through natural causes and without human intervention, "in circumstances
which no human foresight can provide against, and of which human prudence is not bound to
recognize the possibility," then it is said this defence is available.

Nichols vs Marsland:

where a most violent thunderstorm caused flooding, the defence succeeded.

In Ruck vs Williams:

Baron Bramwell made a statement which is perhaps a rough guide for this defence. Talking
about an extraordinary storm; he said:

"We call it extraordinary, but, in truth, it is not an extraordinary storm which happens once in a
century, or in 50 or 20 years; on the contrary, it would be extraordinary if it did not happen.
There is a French saying 'that there is nothing so certain as that which is unexpected.' In like
manner, there is nothing so certain as that something extraordinary will happen now and then."
This means, for example, that for an extraordinary occurrence to amount to an act of God, it must
be the kind of thing which happens rarely or happens once 20, 50 or more years.

So, in Greenock Corporation vs Caledonian Railway Co.

an extraordinary and unprecedented rainfall was held not to be an act of God. The House of
Lords explained that, in Nichols vs Marsland, the jury had found that no reasonable person could
have anticipated the storm and because the court did not want to disturb the jury's finding, that is
why the defence succeeded.

CHAPTER 17

ECONOMIC TORTS

The torts to be discussed in this chapter deal with acts done intentionally to cause harm to
another's right to earn a living by wrongful means. They seek to protect the sanctity of contracts
and trade generally. For this reason, we have to distinguish between acts done as

(1) genuine competition; and

(2) pressure which interferes with the trade or contract of another through illegal means.

For example, a supermarket which sets up next to a street corner shop and thereby kills another's
business is not committing an economic tort! And we have to keep in mind the fact that the basic
concern here is to protect a person's right to earn a living.

PASSING OFF
This is the purest of economic torts. Its purpose is almost exclusively the protection of economic
interests. We can begin consideration of this tort by contrasting it with the tort of deceit. While
deceit protects a businessman who is the direct target of a fraudulent misrepresentation, passing
off protects traders against misrepresentations aimed at their customers, which are calculated to
damage their trade or goodwill.

The common law at first confined the action to the use by Albert of Bens trade name or trade
mark in connection with Albert's business or goods in a way intended to make Ben's customers
believe the goods were produced by Ben. So the action was aimed at dishonest competitive
practices. To drive the point home, let us take some examples:

Reddaway vs Banham:

The plaintiff manufactured machine belting for many years, with the name "Camel Hair Belting."
The defendants, who had previously been in the plaintiff's employment, went into business and
started stamping his goods as "Camel Hair Beltings." This was held to be passing off.

White Hudson & Co. Ltd. vs Asian Organisation Ltd.

The appellant sold cough sweets in red paper wrappers called "Hacks." The majority of their
customers were persons not able to read English. They acquired the habit of simply calling for
"red paper cough sweets." Five years later, the respondent began selling sweets in Singapore in
similar wrappers but marked "Petco Peckos.

The appellants were given an injunction to restrain the respondents from selling their sweets in
the same type of wrappers without distinguishing them in some way.

J. Bolinger vs Costa Brava Wine Company Ltd.

The plaintiffs produced wine in the Champagne district of France and supplied it in England and
Wales. The wine called "Champagne" had a high reputation and had been sold for many years.

The defendant imported wine from Spain, which he marketed under the name of "Spanish
Champagne." The plaintiffs sought an injunction to restrain the defendants from passing off, as
champagne, wine that was not produced in the Champagne district of France. The injunction was
granted.

Reckitt & Colman Products Ltd. vs Borden Inc. (the Jif Lemon Case):

The plaintiffs sold lemon juice in lemon-shaped bottles, a practice developed by them. The
defendants began getting them restrained from doing so. The plaintiffs succeeded in getting them
restrained from selling juice produced by them in a similarly-shaped bottle.

Warnink vs Townend

Ratio protecting a name exclusively associated with a region in the champagne case noted above
was extended to products exclusively associated with a particular method. Injunction was
granted against a product not made from eggs and spirit being called advocaat.

In the Jif Lemon case, in answer to the submission that a trader is entitled to expect the public to
exercise a reasonable degree of diligence in distinguishing between competing products, Lord
Oliver said:

"The essence of the action for passing off is a deceit practised on the public and it can be no
answer, in a case where it is demonstrable that the public has been or will be deceived, that they
would not have been if they had been more careful, more literate or more perspicacious.
Customers have to be taken as they are found."

So a trader who discovers from something that the customer says or does that the customer is
mistaking his product for a competitor's though not from anything he has said, may be liable in
passing off if he does not correct the customer's self-induced misapprehension.

INTERFERENCE WITH CONTRACTUAL RELATIONS

It is a tort for Albert to intentionally induce Ben to break his contract with Cate, or to prevent
Ben from performing it, both to the damage of Cate. The damage is what Cate would suffer in
the ordinary course of business, as well as the intended damage.

Lumley vs Gye:

Johanna, a niece of the German composer, Richard Wagner, contracted to sing exclusively in the
plaintiff's theatre. The defendant, who was fully aware of this contract persuaded her not to
perform. The defendant was held liable in tort.

This was a ground breaking decision in 1853. The difficulty for a court at the time finding a
procurer of a breach of contract liable was that the appropriate action for the wrong committed
by the contracting party lay in contract; but no such action would be against the procurer.

For, as the orthodox rule put it at the time, only a party to a contract could be sued for a breach of
contract. The solution settled on by the court to go round this blockade was to allow the procurer
to be sued in tort, by an action on the case." The point as the House of Lords stressed recently is
that the person procuring the breach of contract was held liable as an accessory to the liability of
the contracting party. The procurer's liability therefore depended on the contracting party having
committed an actionable wrong."

In D.C. Thompson & Co. Ltd. vs Deakin:

the plaintiffs were publishers. They asked all their employees to undertake not to become
members of a trade union.

They dismissed one who did. Other unionised employees of the plaintiffs called out a strike and
asked for assistance from other unions. A company which supplied the plaintiffs with paper
noticed reluctance on the part of their drivers to deliver to the plaintiffs, so they said they could
no longer carry out deliveries because of the "action of trade unions."

The plaintiffs sought an injunction to restrain the unions from procuring this alleged breach of
contract. In the course of his judgment, Morris L.J. described the essentials of this tort as
follows: "
The tort is committed if a person, without justification, knowingly and intentionally interferes
with a contract between two other persons." The plaintiffs' action failed here because it was not
proved that the unions had knowledge of the contract in question. Also no unlawful means had
been used to bring about the breach.

From D.C. Thompson & Co. Ltd. vs Deakin, the following additional points can be noted about
this tort:

1. There must be a valid contract (any kind of contract); contractual expectations are not enough.
So if John teaches Kennedy dancing in the hope of engaging him and James induces him to sign
instead with James, no tort.

2. Carelessness is not enough because the tort is one of intention. The intention here requires
knowledge of the contract, or, as Lord Denning put it in Torquay Hotel Co. Ltd. vs Cousins," the
defendant must "turn a blind eye to it and intend to interfere with it."

3. But recklessness is sufficient.

4. No liability if the inducement is to terminate contract lawfully.

5. The plaintiff' must be the intended target.

INDUCEMENT FOR PURPOSES OF THE ACTION MAY ASSUME THREE FORMS:

1. Direct Persuasion, that is persuasion of A to break with B. Here the breach must be a
reasonable consequence of the inducement. The defendant may act through an intermediary.
Liability does not require the defendant to use unlawful means; persuasion is enough; on the
other hand mere advice is not persuasion and involves no liability.

2. Direct prevention (intervention) where Alert does an unlawful act (example kidnaps Ben) to
prevent Ben from performing his contract with Cate.
3. Indirect prevention or intervention, that is when Albert induces Ben to breach his contract
with Cate, see J.T. Stratford & Sons Ltd. vs Lindley." Here, a breach must be a necessary
consequence of the defendant's conduct, and has to be unlawful.

"Indirect interference is only unlawful if unlawful means are used:" per Lord Denning in
Torquay Hotel Co. Ltd. vs Cousins,"

DEFENCE

The defendant may plead justification. The point is illustrated by:

Brimelow vs Casson:

In that case the plaintiff paid his chorus girls such low wages that, to make ends meet, they had
to practise prostitution. The defendants who ran a protection society for theatre workers induced
theatre proprietors not to allow the plaintiff to use their theatre, to get the plaintiff to raise wages.
Contracts were broken in some cases and, in others, proprietors refused to enter into new ones. It
was held that the defendant's action was justified because the plaintiff's conduct was compelling
the girls to resort to immorality.

Further, if Albert has a legally enforceable financial stake in Ben's affairs, he may be justified in
inducing Ben to break his contract with Cate.

CONSPIRACY

This action is an off-shoot of the criminal law. It consists in an agreement between two or more
persons to injure Another Person by unlawful means or in a combination to do a lawful act to
injure Another Person or to do a lawful act by unlawful means.

Sometimes an act if done by an individual will be lawful, but becomes unlawful by virtue of the
fact that it is done in combination.
This is because of the power of the combination. The unlawful acts may be

(1) criminal;

(2) tortious; or

(3) acts in breach of statute.

In case of (3), the plaintiff should have an independent cause of action for the breach of the
statute. In the case of conspiracy consisting of a combination to do a lawful act to injure another
person . it must be clear that the ulterior motive (i.e. the intention) is to damage the plaintiff
rather than to serve the bona fide and legitimate interests of the defendants.

As has been said by an eminent judge Viscount Simon in

Crofter Hand Woven Harris Tweed Co. Ltd. vs Veitch:

"The test is not what is the natural result to the plaintiffs of such combined action, or what is the
resulting damage which the defendants realize or should realize will follow, but what is in truth
the object in the minds of the combiners when they acted as they did. It is not consequence that
matters, but purpose; the relevant conjunction is not 'so that' but 'in order that'."

In that case and in ;

Mogul Steamship Company vs Macgregor Gow & Co:

it was held lawful to drive the plaintiff out of business in order to protect the defendant's own
business.
But there will be liability if the action taken exceeds the protection of legitimate interests:

Huntley vs Thornton;

Where a defendant acts on mixed motives, liability depends on the predominant motive. For the
defence of justification: see Scala Ballroom. In this case, the plaintiffs decided to refuse
admission to coloured persons. The Musicians' Union which had many coloured persons among
its members gave notice that none of its members would perform in the ballroom till the ban was
lifted. The plaintiff sought an injunction to restrain the defendants, officials of the union, from
persuading or attempting to persuade their members not to perform. It was held that an injunction
would not lie. The defendants' purpose, the protection of their members' interests, was legal.

INTIMIDATION

This tort is committed if the defendant threatens to use unlawful means to compel Albert to
comply with his wishes and does so to his detriment; or threatens to use unlawful coercion
against Albert and compels him to act to the detriment of Ben.

In Rookes vs Barnard' the BOAC case;

the plaintiff, an employee of BOAC (being dissatisfied with the union) resigned from his union
but continued to work for BOAC. Union officials, some of whom were employees of BOAC and
were anxious to maintain a closed shop, threatened BOAC with strike action, unless they
dismissed the plaintiff. Strike action would have involved breaches of contract by the employees
concerned. BOAC dismissed the plaintiff and he sued the defendants for intimidating BOAC.
The House of Lords held the plaintiff could recover.

Also, in Tarleton vs M'gawley,:

the defendants fired guns at Africans in order to frighten them away from trading with his rival.
He was held liable in the tort. (How about employing flatulence!!!)
CAUSING LOSS BY UNLAWFUL MEANS

The tort of intimidation, it has been suggested, is only a variant of a broader tort known as
"causing loss by unlawful means." The broader tort was recognised in J.T. Stratford & Son Ltd.
vs Lindley when he says:

"The respondents' action (in calling a strike) made it practically impossible for the appellants to
do any new business with the barge-hirers. It was not disputed that such interference with
business is tortuous, if any unlawful means are employed."

This tort was by the decision in OBG vs Allan separated from the principle of accessory liability
laid down in Lumley vs Gye, namely inducing breach of a contract.

The tort of causing loss by unlawful means differs from the tort of inducing breach of contract,
the Lumley vs Gye principle, as originally formulated, in at least four respects. First, unlawful
means was a tort of primary liability, not requiring a wrongful act by anyone else, while Lumley
vs Gye created accessory liability, dependent upon the primary wrongful act of the contracting
party.

Secondly, unlawful means required the use of means which were unlawful under some other rule
(independently unlawful), whereas liability under Lumley vs Gye required only the degree of
participation in the breach of contract which satisfied the general requirements of accessory
liability for the wrongful act of another person. Thirdly, liability for unlawful means did not
depend upon the existence of contractual relations; it was sufficient that the intended
consequence of the wrongful act was damage in any form, for example, to the claimant's
economic expectations.

Under Lumley vs Gye the breach of contract was of the essence. If there was no primary
liability, there could be no accessory liability. Fourthly, although both were described as torts of
intention, the results which the defendant had to have intended were different. In unlawful
means, the defendant had to have intended to cause damage to the claimant (although usually
that would be a means of enhancing his own economic position). The elements of this tort as
stated by Lord Hoffman in OBG vs Allan are:
1. A wrongful interference with the actions of a third party in which the plaintiff has an
economic interest, and

2. An intention thereby to cause loss to the claimant.

The most important question here is what constitutes "unlawful means." Acts against third
parties count as unlawful means only if they are actionable by that third party. To quote Lord
Hoffman:

"Unlawful means consists of acts intended to cause loss to the claimant (ie. plaintiff) by
interfering with the freedom of a third party in a way which is unlawful as against that third party
and which is intended to cause loss to the claimant. It does not... include acts which may be
unlawful against a third party but which do not affect his freedom to deal with the claimant."

INJURIOUS FALSEHOOD

Care should be taken not to confuse this tort with defamation. The tort protects interests in the
reputation and goodwill of one's business. The law was thus stated by the Court of Appeal in

Ratcliffe vs Evans:

An action will lie for written or oral falschood ... where they are maliciously published, where
they are calculated in the ordinary course of things to produce, and, where they do produce,
actual damage." Originally, this tort addressed unwarranted attacks on title to land; hence it was
known as slander of title. Later, it was extended to goods slander of goods. Since Ratcliffe's
case," it is now referred to as "injurious falsehood."

Any type of interest in land, trade marks, patent, trade names, copyright, company shares - all
can found action in this tort.
Joyce vs Motor Surveys:

Here, the plaintiff was a tenant of the defendant. To evict him and be able to sell the entire
property with vacant possession, the defendant told the Post Office not to forward any more
mails to him at that address and told the tyre manufacturers' association that he was no longer
trading there. The court held the defendant liable for injurious falsehood.

The action will also be available, where business reputation is maliciously disparaged; but no
imputation entitling action in defamation is made. Interference with prospective advantage, even
social, comes within the ambit of this tort.

Thus, to deprive A of a marriage by falsely informing the intended husband that A is already
married is tortious:

For this action, the test is whether a reasonable man will take the defendant's claim in denigration
of the plaintiff's goods seriously.

White vs Mellin:

W bought bottles of infants' food made by M for sale in his shop. He affixed to it a label that said
Dr. V's food for infants and invalids, a product of W, was better than any other. Held no
injurious falsehood. Just mere puff.

By way of a summary, for the action for injurious falsehood to succeed the following
requirements must be established:

1. The plaintiff must prove malicious statement, by showing, for example absence of belief in the
truth of the statement on the part of the maker, the defendant.

2. The statement must be a false one about the plaintiff or his property. Not just that a false
statement has caused him harm.

3. There must be publication that is, the statement must be made to a third party.
4. The plaintiff must prove that the false statement caused him pecuniary loss."

CHAPTER 18

GENERAL NEGLIGENCE

Winfield in his article "Foundation of Liability in Tort recounts a debate between Salmond on
one hand and Winfield and Pollock on the other; which can be summarised as follows:

(1.) Salmond argues that the Law of Torts consists of a body of rules establishing specific
wrongs and thus denies any discernible general principles of liability.

(2.) Winfield and Pollock counter that there runs through all Torts, and therefore the Law of
Torts, a general principle of liability. Salmond's view, though it presents a static picture of torts
law, is a close description of the nominate torts discussed in the preceding chapters. The
nominate torts do refer to specific interests of the plaintiff which are infringed and they define
conduct which constitutes the wrong, such as false imprisonment.

Negligence breaks away from this closed-category principle. It provides a fluid principle of
liability, infinitely adaptable by the controlled manipulation of its elements of duty of care,
breach and damage. This has enabled negligence to annex and expand to cover the sacred terrain
of the nominates. This development, in turn, makes the view of torts law as an aggregation of
distinct, civil wrongs increasingly unreal and wins the argument for Winfield and Pollock.
"The grounds of action may be as various and manifold as human errancy; and the conception of
legal responsibility may develop in adaptation to altering social conditions and standards. The
criterion of judgment must adjust and adapt itself to the changing circumstances of life.

The categories of negligence are never closed. The cardinal principle of liability is that the party
complained of should owe to the party complaining a duty to take care, and that the party
complaining should be able to prove that he has suffered damage in consequence of a breach of
that duty. Where there is room for diversity of view, it is in determining what circumstances will
establish such a relationship between the parties as to give rise, on the one side, to a duty to take
care, and on the other side to a right to have care taken."

PRELIMINARY OBSERVATIONS

By way of recapitulation, we may note that there are two meanings or senses in which the term
negligence is employed in torts law, namely:

1. a mental element which supports actions in some torts, such as battery; and

2. an independent tort which consists of a breach of a legal duty, followed by damages.

As we have noted in earlier chapters, negligence as an element in another tort means either:

1. inadvertence) by the defendant to the nature of his conduct or its probable consequences or

2. indifference or

3. carelessness or even recklessness.

BASIS OF NEGLIGENCE LIABILITY

The liability for negligence as a tort, according to Lord Atkin in:

Donoghue vs Stevenson:

is based upon a general public sentiment of moral wrongdoing for which the offender must pay.
There is thus injected into this tort, as its justification, a moral fault. In the legal sense, "fault"
has come to mean no more than a departure from conduct required of a person for the protection
of others. In practice, however, this moral justification is contradicted by 3 things:

1. The objectivity of the negligence test, which often is indifferent to the moral blamelessness of
the particular defendant.

2. The operation of the res ipsa loquitur rule, which saddles a defendant with an onus of proving
innocence, which is often undischargeable.

3. The doctrine of vicarious liability which may cast liability on a blameless employer.

It must be admitted though that, in the great majority of cases, liability in negligence indeed
coincides with the defendant's blameworthiness or some moral delinquency on his part, example,
the taxi driver who runs through the red light and collides with another car. Beyond these,
however, negligence works as an arbitrary prescription of liability rather than a regulator of
liability upon a moral principle. Thus, there is a constant conflict between this moral basis of
negligence and compensation as a function of torts.

As a result of this conflict between the moral core (or foundation) of negligence, which insists on
no liability without fault and the compensation function of the law of torts, which urges that the
innocent be compensated, irrespective (regardless) of fault, there is noticeable a dualism in this
tort, namely:

1. Negligence introduces a fault element into some torts which were once strict.

2. It covertly extends strict liability into areas ostensibly governed by fault.

WHAT THEN IS NEGLIGENCE AS A TORT?

In the case of some torts such as battery, the definition of the tort allows us to form a clear
mental picture of the defendant's conduct in committing it. The tort of negligence does not lend
itself to such easy imaging. The tort derives from the old writ of trespass on the case. It is
therefore actionable only on proof of damage.

In Haynes vs Harwood, the court said:

"Negligence in the air will not do; negligence, in order to give a cause of action, must be the
neglect of some duty owed to the person who makes the claim." Baron Alderson in :

Blyth vs Birmingham Water Works Company also defined it thus:

"Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do."

In Lochgelly Iron and Coal Company vs McMullan, Edusei J drew out the elements involved in
the tort in Allasan Kotokoli vs Moro Hausa as follows:
"In a strict legal analysis, negligence means more than heedless or careless conduct, whether in
omission or commission: it properly connotes the complex concept of duty, breach, and damage
thereby suffered by the person to whom the duty was owing."

So negligence as a tort is not coterminous with carelessness, or heedless conduct. Mere careless
conduct then is not enough to attract liability under this tort. Negligence, as a tort, as the
statement of Edusei J, just quoted indicates, covers the three- tier concept of duty, breach and
damage.

Thus, the mere fact that a man is injured by another's act gives, in itself, no cause of action in
negligence, unless the act lacks due care and the duty to be careful exists, that is, is imposed by
law. That is to say a person cannot be held negligent in torts law, unless he owed some duty to
the plaintiff and that duty was breached, example a house owner or occupier is not liable in
negligence, if he fails to repair a broken stair-case; but he is liable if B (to whom he owes a duty
in relation to the house) is hurt by the broken stair-case without any warning to him.

DUTY OF CARE

In Heaven vs Pender:

A duty is owed to anyone who might reasonably be expected to suffer.

Derry vs Peek:

where it was said that a duty to take care arises, if there was such proximity between the persons
or properties of the parties that want (absence, lack) of care might occasion damage by one to the
other. The duty defines the interests protected by the tort of negligence that is the conduct
which is actionable. The existence of a duty is therefore a matter of law. In the early years, this
was strictly dependent on precedent. In the formative years of the tort of negligence, we notice
three circumstances in which inadvertent injury was redressible by a civil action on the case:
1. Duty arising from a public calling: that is an innkeeper to client, a public carrier, a surgeon,
and the attorney. In these cases, the inadvertence entailed liability just as much as harm which is
caused deliberately

2. Duty arising from public office: As the principle was then stated "every breach of a public
duty causing wrong and loss to another is an injury and actionable."- this results from the trust
and confidence reposed in the officer concerned.

3. Duty arising from control of dangerous things. There are two tests generally for the
ascertainment of the existence of a duty of care:

1. The first test looks at the nature of the interest. The interest infringed on must be one which
the law protects against negligent conduct.

2. The second is the type of injury. The injury must have been such that a reasonable man would
have foreseen and provided against it. Under the two tests, it is clear that the standard is an
abstract one.

If a reasonable man, placed in the circumstances of the defendant, would have foreseen that his
conduct might endanger or prejudice (harm/damage) others in regard to their legally protected
interests, then the defendant is deemed to have been under a legal duty towards such others to
exercise appropriate care.

It follows that the foreseeability of harm will not generate a duty of care towards persons
apparently outside the area of risk." Neither will the foreseeability of harm generate a duty of
care if, in the circumstances, a reasonable man would not deem it necessary to take any
precautions. In other words:

1. what the reasonable man would foresee determines the existence of the duty, and
2. what the reasonable man would do determines the scope or content of the duty.

The usefulness of the duty of care device for negligence liability becomes, on such an analysis,
immediately obvious: namely, it is a policy device for judicial monitoring of the type of wrongs,
on grounds of policy, to be considered actionable as negligence. So, no hard and fast rules about
this duty of care issue.

The clearest formulation of a general principle for determining the existence of the duty of care
is to be found in Lord Atkins 'neighbour principle' enunciated in

Donoghue vs Stevenson:

In this case, ginger-beer was bought for the appellant by a friend. The ginger-beer was contained
in an opaque bottle. There was the decomposed remains of a snail in the bottle, which the
appellant alleged shocked her and made her suffer severe gastro-enteritis. She brought the
present action alleging that the manufacturer of the ginger-beer was liable to her for negligently
packing his drink. By three-two decision, it was held by the House of Lords that, assuming those
facts to be proved, an action would lie in negligence that is the manufacturer owed her a duty of
care.

Lord Atkin developed his neighbour principle for determining duty in novel situations in this
case. He asserted that through all the earlier cases in which the courts held that liability arose out
of negligent conduct, one general central principle was common. He formulated this common
principle as follows:

"The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour; and the lawyer's question, who is my neighbour? receives a restricted reply. You
must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be -
persons who are so closely and directly affected by my act that I ought reasonably to have them
in contemplation as being so affected when I am directing my mind to the acts or omissions
which are called in question.'
This has become known as the NEIGHBOUR PRINCIPLE.

A duty to take care then arises when the person or property of one was in such proximity to the
person or property of another that, it is reasonably foreseeable that if due care was not taken,
damage might be done by the one to the other. Same as Brett M.R. had echoed in Heaven vs
Pender earlier.

In other words proximate relationship creates a neighbor in law. But, by proximity, we should
not understand mere physical closeness- it extends to the close and direct relations that the act
complained of affects, that is persons whom the one alleged to be bound to take care would
know would be directly affected by the careless act or those whom a reasonable person in his or
her position would contemplate as likely to be affected adversely.

Donoghue vs Stevenson" thus revolutionised the law of negligence by providing a general

principle by which to determine the new situations which the law would recognise as creating a
duty between persons. Henceforth, in the words of Lord Macmillan in the same case, we are not
to consider that the categories of negligence are closed. This made a break from the early
approach where duty situations sprang primarily from individual precedents coalescing into three
groups as noted already.

Donoghue vs Stevenson also disposed of the privity of contract obstacle to the development of
negligence law attributed to Winterbottom vs Wright," that where there was a contractual
relationship between a manufacturer and another, there can be no liability in tort to a third party
injured by the negligent performance of the contract.

The proximity test reflected in the neighbour principle establishes a prima facie duty. If, then, a
prima facie duty exists, one must look to discover whether there are any considerations which
ought to:

1. negative; or

2.reduce; or
3. limit the scope of the duty or the class of persons to whom it is owed or the damages to which
a breach of it may give rise.

This became known as the two-tier approach to the acceptance of a duty in novel situations.

The fear that the neighbour principle might lead to the opening of the floodgates to litigation has
resulted in many judges' unwillingness to admit that the neighbour principle is a principle of
general application to the tort of negligence. This fear was poignantly brought out in Weller vs
Foot & Mouth Disease Institute

It was not until 38 years after Donoghue vs Stevenson was decided that the English House of
Lords, through Lord Reid in:

Dorset Yacht Company Ltd. vs Home Office:

accepted that the neighbour principle was a statement of general principle relative to the
determination of the existence of a duty of care in the tort of negligence and was to apply, though
neither slavishly nor like a statutory definition, unless there was some justification or valid
explanation for its exclusion.

In Dorset Yacht Company Ltd. vs Home Office:

seven borstal boys escaped from an island camp and entered the plaintiff's yacht which was
moored nearby, cast her adrift and caused considerable damage to the yacht and its contents. The
plaintiffs pleaded that the borstal officers, knowing the boys' criminal potentials or propensities
and history of previous escapes, owed them a duty of care to ensure that they did not escape and
that they had failed to maintain effective control over them at night. They sought to hold the
Home Office vicariously liable for the negligence of the officers.

The Home Office denied any liability on the part of either itself or its officers, stressing that they
did not owe the plaintiff a duty. It was held that the Home Office owed a duty of care to the
plaintiff. But, in their judgment, the House of Lords clarified the duty of care concept and
therefore the role of Lord Atkins' neighbour principle in determining the duty.
They stressed that, closely analysed, the concept of duty of care is simply a control device
adopted by the judges to limit the scope of liability in the practical world, and, in so doing, they
are guided by questions of policy rather than any universally applicable principle. They adopted
Lord Denning's assertion in the Court of Appeal that:

"It is i.e. duty of care I think, at the bottom a matter of public policy which we as judges must
resolve. This talk of duty or no duty is simply a way of limiting the range of liability for
negligence."

We should not be surprised by this lukewarm attitude to Donoghue vs Stevenson.

Before Dorset Yacht in 1970, the Court of Appeal had in Candler vs Crane, Christmas Co.
refused to extend liability for negligent misstatement in the light of Donoghue vs Stevenson and
instead preferred to abide by decisions made before Donoghue vs Stevenson; that is to say that
rather than rely on Donoghue vs Stevenson, they chose to rely on precedents.

But the two-tier approach has been criticised. Notably by Lord Keith in Governor of the Peabody
Donation Fund vs Sir Lindsay Parkinson & Co. Ltd. Lord Keith stressed, in that case, that the
acceptance of duty in novel situations must have regard to all the circumstances of the case as
well as to whether it was just and reasonable to do so. Lord Bridge put the final nail in the coffin
of the two-tier approach in Caparo Industries, where he seems to take us back to the pre 1932
categorisation and to deny the "modern" developments when he says:

it is preferable that the law should develop novel categories of negligence incrementally and by
analogy with established categories, rather than by a massive extension of a prima facie duty of
care restrained only by indefinable considerations which ought to negative, or to reduce or limit
the scope of the duty or the class of persons to whom it is owed.

Actually Lord Bridge was quoting from Brennan J., of the High Court of Australia in Sutherland
Shire Consul vs Heyman.

The trend towards reining in Donoghue vs Stevenson's neigbour principle as the sole determinant
for the existence of a duty of care has thus been consolidated in:
Caparo vs Dickman.

This case provides three factors which must be considered in determining whether a duty of care
should be recognised in novel situations. These are :

1. reasonable foresight of harm;

2. proximate relationship between the parties; and

3. whether it is fair, just and reasonable to impose a duty in the circumstances. Of these three, the
first two are encapsulated in the neighbour principle. The third raises policy considerations.

TYPES OF DUTY SITUATIONS DEALING WITH NEGLIGENCE

The role the duty of care concept plays in negligence can be best understood by looking at its
development in some areas. We look principally at three areas:

1. Rescue;

2. nervous shock; and

3. pecuniary loss.

RESCUE CASES

For the sake of clarity, we start with an illustration of the problem: Albert by his conduct through
negligence puts Ben in danger. Cate sees Ben in danger and goes to his rescue and is injured.
The question is does Albert owe Cate a duty of care? If he does, then Z can bring an action
against Albert ; so Cate must establish that Albert owes him/her a duty of care, while engaging in
the activity in question. In the past, guided by the principle in Dorset Yacht," the courts were
reluctant to give relief in cases of rescue. Two cases illustrate the point.

Haynes vs Harwood.:

In this case, the plaintiff, a police constable, was on duty inside a police station in a street in
which, at the material time, were a large number of people, including children. Seeing the
defendant's runaway, unattended horses with a van attached coming down the street, he rushed
out and eventually stopped them, sustaining injuries in consequence, in respect of which he
claimed damages. It was held that:

1. on the evidence, the defendant's servant was negligent in leaving the horses unattended in a
busy street;

2. that, as the defendant's servant must or ought to have contemplated that someone might
attempt to stop the horses in an endeavour to prevent injury to life and limb, and, as the police
were under a general duty to intervene to protect life and property, the act of, and the injuries to,
the plaintiff were the actual and probable consequences of defendant's servant's negligence; and

3. that the maxim volenti non fit injuria did not apply to prevent the plaintiff recovering.

Lord Justice Greer explained the decisions thus:

"What is meant by negligence? Negligence in the air will not do. negligence, in order to give a
cause of action, must be the neglect of some duty owed to the person who makes the claim
I personally have no doubt that a policeman or indeed any one- and still more a policeman using
the highway for the purpose of stopping a runaway horse and thereby preventing serious
accidents and possibly preventing loss of life is within the category of those lawfully using the
highway.

I agree to this extent that the mere fact of a spectator running out into the road to stop a runaway
horse will not entitle him to succeed in an action for the consequential damage. All the
circumstances must be considered and, if this act is one which everybody would expect from a
normally courageous man, doing what he does in order to protect other people, I do not think the
observation accurately represents the law of this country,"

Lord Justice Greer thus drew a distinction between a mere spectator whose claim should be
denied and a person under an obligation whose claim should be accepted. His colleague Lord
Maugham L.J. also said:

"To avoid misconception, I wish to repeat that I am not expressing the opinion that, if the
plaintiff here had been a layman, instead of a police man on duty, the result would necessarily
have been otherwise; that question does not arise. My present view is that a rescuer, who acts on
such a moral compulsion, that, having regard to his powers and his opportunities, he would feel
disgraced if he merely stood by, would be entitled to succeed in such an action as this."

Baker vs T.E. Hopkins.

In that case, a company, which carried on business as builders and contractors, undertook work
on a well, which involved clearing it of water. The well was some 50ft deep and 6ft in diameter.
H, a director of the company, and W. another workman employed by the company, erected a
platform 29ft down the well and some 9ft above the water and lowered onto it a petrol-driven
pump. After the engine of this pump had worked for about an hour and half, it stopped and a
haze of fumes was visible in the well. The working of the petrol pump created a dangerous
concentration of carbon monoxide, a colourless gas. H returned to the well after working hours
that evening and observed the haze and noticed a smell of fumes.

On the following morning, at about 7.30 a.m., H instructed the two workmen to go to the well,
but said to W, "Don't go down that bloody well until I come." They arrived at the well and
shortly after and before H's arrival, one entered the well and was followed by the other. Both
were overcome by fumes. A doctor, who was called to the well, went down the well with a rope
tied around his body in order to see if he could rescue the men, though warned not to go.

He was also overcome by fumes. An attempt was made to haul him to the surface by the rope but
the rope got jammed and there was some delay in his being brought to the surface. He died
shortly afterwards. The court found that H had acted in good faith, but lacked experience and did
not appreciate the great danger that would be created in the well and did not seek expert advice
on the proper method of emptying the well.

In an action for damages for negligence resulting in the death of W and the doctor, judgment was
given against the company, ten per cent of the responsibility being attributed to W. On appeal, it
was held that:

(1) The defendant company were liable for negligence causing W's death because the method
adopted to empty the well had created a situation of great danger to anyone descending the well
on the morning in question and the defendant company were negligent in that no clear warning
of the deadly danger was given to W on that morning, H's order not to go down the well until he
came was insufficient to discharge the defendant company's legal duty to take reasonable care
not to expose W to unnecessary risk; though the apportionment of ten per cent of the
responsibility to W would not be disturbed.

(2) the defendant company were liable for negligence causing the death of the doctor because it
was a natural and probable consequence of the defendant company's negligence towards the two
workmen that someone would attempt to rescue them, and the defendant company should have
foreseen that consequence; accordingly, the defendant company were in breach of duty towards
the doctor.

Morris L.J. explained the decision further as follows:

"The company could and should in my judgment have anticipated that, if as a result of their
negligence, their men were exposed to great danger in the well, it would be a natural and
probable consequence that someone would attempt to rescue. Subject to a consideration of
certain further submissions... it seems to me therefore that it is shown that Dr. Baker's death was
a result of the company's negligence.
There is happily in all men of goodwill an urge to save those who are in peril. Those who put
them in peril can hardly be heard to say that they never thought that rescue might be attempted or
be heard to say that the rescue attempt was not caused by the creation of the peril.

If Albert by negligence places Ben in peril in such circumstances that it is a foreseeable result
that someone will try to rescue Ben and if Cate does so try ought Cate in any appropriate sense to
be described as a "volunteer? In my judgment the answer is No. I confess that, it seems to me
ungracious of Albert even to suggest it... Cate's intervention comes at the moment when there is
some situation of peril and the cause of or the responsibility for the creation of the peril may be
quite unknown to Cate. If Cate, actuated by an impulsive desire to save life, acts bravely and
promptly and subjugates any timorous over-concern for his own well-being or comfort, I cannot
think that it would be either rational or seemly to say that he freely and voluntarily agreed to
incur the risks of the situation which had been created by Albert 's negligence.

If a rescuer acts with a wanton disregard of his own safety it might be that, in some
circumstances it might be held that any injury to him was not the result of the negligence that
caused the situation of danger."

On his part, Willmer L.J. put the same point as follows:

"Assuming the rescuer not to have acted unreasonably, therefore, it seems to me that he must
normally belong to the class of persons who ought to be within the contemplation of the wrong
doer as being closely and directly affected by the latter's act."

For a comparative perspective, we may note that the same point was made by Cardozo J in
Wagner vs International Railway Company.

"Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore
these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal.
It places their effect within the range of the natural and probable. The wrong that imperils life is
a wrong to the imperiled victim; it is a wrong also to his rescuer."
In spite of what Lord Maugham said in Haynes," a close reading of the two cases reveals that, if
the rescuers had been ordinary persons, they would have had no claim because they would have
been considered as having voluntarily assumed the risk of injury to themselves.

This conclusion can be illustrated by Cutler vs United Dairies" - where because the court
concludes that the horse threatened harm to no one, the plaintiff was considered a busy-body. In
that case, a horse belonging to the defendants and attached to one of their vans was seen by the
plaintiff running past his house without the driver. It entered a field immediately adjoining, and
separated by a hedge from the plaintiff's garden, and the driver, who had followed it was trying
to pacify it.

But, as it continued to be very restive, the driver, who was excited, shouted "Help, help",
whereupon the plaintiff went over the hedge and attempted to hold the horse, and, in the process,
was injured seriously. There was evidence that the horse had bolted once before, if not twice,
The jury found

1. that the plaintiff did not freely and voluntarily, with full knowledge of the nature of the risk he
ran, impliedly agree to incur it;

2. that the defendants were guilty of negligence in employing the horse to draw the van;

3. and that that negligence was the cause of the accident. Nevertheless the court held that:

1. the negligence (if any) of the defendants in employing the horse could not be said to be the
cause of the accident, in as much as there was a novus actus interveniens namely, the plaintiff's
attempt to hold the horse, which he must have known was attended with risk and therefore that
the principle of volenti non fit injuria applied and precluded plaintiff from recovering. Scrutton
L.J. simply stated:"

"If a horse bolts in the highway and a bystander tries to stop it and is injured, the owner of the
horse is under no legal liability to the injured person." Significantly, his colleague Lord Justice
Slesser added: If a man sees his child in great peril in the street from a runaway horse, and,
moved by paternal affection, dashes out and is injured in attempting to stop the horse, it may in
those circumstances, well be said that there is in law no novus actus interveniens."
Thus, on policy grounds, the common law insisted that the rescuer must be,

1. an expert qualified to intervene in the particular situation or

2. a parent motivated by parental concern or

3. a person whose normal duties will require him or her to intervene, before he can be accepted
by the courts as belonging to the class of persons to whom the negligent defendant owes the
duty.

A father, for example, who, moved by paternal affection, goes to the aid of his child would fall
within the class of persons to whom the defendant owed the duty, i.e. the defendant ought
reasonably to have contemplated that the father, if around, would go to the aid of his child.

The turning point against this structural way of thinking and looking at the problem of duty to
rescuers came with Videan vs British Transport Commission. A father, a station-master on
leave, jumped from a platform in an attempt to save his two-year old boy from being run over by
a trolley.

The father was killed and the child received injuries. The defendant argued, in defence, that the
child on the track was a trespasser, and not recognized by the common law. The father was thus
the rescuer of a person not in existence in the eyes of the law and to whom the defendant owed
no duty.

Secondly, the substantive station master, if any one existed, to whom a duty was owed by the
defendant, should have gone to the rescue.

It was held that it was not foreseeable that the child would be there, but, being there, it was
foreseeable that the rescuer (father) should attempt to save him. Lord Denning stated that the
right of the rescuer is an independent right and is not derived from that of the victim.

The victim may have been guilty of contributory negligence, as in Baker vs Hopkins," or the
right may be excluded by contractual stipulation - but still the rescuer can sue. So also the victim
may be a trespasser and excluded on that ground, but still the rescuer can sue.
By this decision, the thrust of the earlier cases was blunted. A person who, by his negligence,
puts another in peril owes a duty to whoever goes in to rescue provided that the rescuer himself
is not acting wantonly; even, if acting wantonly, this may only go to contribution.

This change in judicial attitude led to the decision in Chadwick vs British Transport
Commission. Two trains collided. Ninety persons were killed and several injured. The plaintiff
had once suffered psycho-neurotic symptoms but, at the time of this incident, had been living for
about sixteen years without any problems. He went to the rescue and took an active part in the
operations.

He suffered anxiety neurosis as a result of participation in the rescue operations. The defendant
admitted that the accident was caused by negligence for which they were legally responsible, but
denied any liability to the plaintiff.

The court held that the defendants were in breach of their duty to the plaintiff because it was
reasonably foreseeable that, if such an accident occurred, someone would go to the rescue of the
people. That his illness was suffered as a result of that breach. Reasons:

1. It was reasonably foreseeable in the event of such an accident as had occurred that someone
other than defendant's servants might try to rescue passengers and might suffer injury in the
process. Accordingly, the defendants owed a duty of care to Chadwick.

2. Injury by shock to a rescuer, physically unhurt, was reasonably foreseeable, and the fact that
the risk run by a rescuer was not exactly the same as that run by a passenger did not deprive the
rescuer of his remedy.

3. Damages were recoverable for injury by shock notwithstanding that the shock was not caused
by the injured person's fear for his own safety or for the safety of his children.

4. As a man who had lived a normal busy life in the community with no mental illness for 16
years, there was nothing in Chadwick's personality to put him outside the ambit of the
defendant's contemplation so as to render the damage suffered by him too remote.
Thus it became admitted that negligently creating a situation of danger may entail liability to a
rescuer for injury sustained by him or her in attempting to aid a person imperilled. As Cardozo J
put it in Wagner vs International Railway Company.

"The emergency begets the man. The wrongdoer may not have foreseen the coming

of a deliverer. He is as accountable as if he had." A close reading of the foregoing cases reveals

that foreseeability is not the sole determinant of duty. There are weighty policy considerations at
play here. It is clear that the courts, on policy grounds, want to encourage altruistic action

NERVOUS SHOCK

Nowhere in the law of negligence is the uncertainty surrounding the contours of its three
component units - duty, breach, damage - more visible than in the nervous shock cases. Until
recently the courts have been reluctant to give damages for such shocks especially where no
physical injury was found. The reasons for this reluctance (all rooted in policy) may be
summarised as:

1. difficulty in assessing damages;

2. the danger of fictitious claims; and

3. fear of excessive litigation.

Two theories have dominated discussions on nervous shock in the context of the tort of
negligence, especially on the issue of duty of care. The first is the impact theory. This holds that
shock is only an extension of physical injury. Therefore if no physical injury is foreseeable, then
there is no liability for shock. The second is the shock theory. This postulates that "nervous
shock" is a distinct kind of injury. The test for liability is therefore whether it is reasonably
foreseeable that injury by shock would arise from the defendant's negligence.
In Page vs Smith:

a majority of the House of Lords rejected the impact theory and embraced the shock theory.
They decided that, where the shock is caused to a primary victim of the negligence, all that the
law requires is foreseeability of harm, not necessarily of shock. But to understand the importance
of the decision in Page vs Smith, it is useful for us to examine the evolution of judicial attitude to
nervous shock through the earlier cases."

For the reasons earlier noted, in certain cases of nervous shock, it was held that no duty of care
existed.

In Bourhill vs Young:

Young, while negligently driving his motor-cycle at an excessive speed, collided with a motor-
car and was killed. The appellant was a fish seller who at the time was about eight months
pregnant. She was standing about 45 feet away from the point where the collision took place, on
the blind side of a stationary tram-car, unloading her basket.

She suffered fright resulting in severe nervous shock which disabled her from carrying on her
trade for some time. She admitted that, at the time, she had no reasonable fear of immediate
bodily injury to herself. When she had her child, it was still-born because of injuries sustained by
her.

She sued for negligence. It was held that the action must fail. The motor-cyclist owed her no
duty of care, because she was not within the area of potential danger within the contemplation of
the negligent conduct. Injury to her, therefore, was not within that which the cyclist ought to
have reasonably contemplated as the area of potential danger which would arise as the result of
his negligence that is, she was not a neighbor in law of the motorist.

On the general issue of liability for nervous shock in the tort of negligence, Lord Macmillan
explained that:

"It is no longer necessary to consider whether the infliction of what is called mental shock may
constitute an actionable wrong. The crude view that the law should take cognizance only of
physical injury resulting from actual impact has been discarded, and it is now well recognized
that an action will lie for injury by shock sustained through the medium of the eye or the ear
without direct contact.

The distinction between mental shock and bodily injury was never a scientific one, for mental
shock is presumably in all cases the result of, or at least accompanied by, some physical
disturbance in the sufferer's system.

And a mental shock may have consequences more serious than those resulting from physical
impact. But, in the case of mental shock, there are elements of greater subtlety than in the case of
an ordinary physical injury and these elements may give rise to debate as to the precise scope of
legal liability....

The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting
to do which may have as its reasonable and probable consequence injury to others, and the duty
is owed to whom injury may reasonably and probably be anticipated, if the duty is not observed.

There is no absolute standard of what is reasonable and probable. It must depend on

circumstances and must always be a question of degree." Lord Wright also noted that:

"This general concept of reasonable foresight as the criterion of negligence or breach of duty
(strict or otherwise) may be criticized as too vague, but negligence is a fluid principle, which has
to be applied to the most diverse conditions and problems of human life. It is a concrete, not an
abstract, idea. It has to be fitted to the facts of the particular case. .

Continuing, Lord Wright stated:

"What is now being considered is the question of liability and this:

must generally depend on a normal standard of susceptibility. This, it may be said, is somewhat
vague. That is true, but definition involves limitation which it is desirable to avoid further than is
necessary in a principle of law like negligence which is widely ranging and is still in the stage of
development. It is here, as elsewhere, a question of what the hypothetical reasonable man,
viewing the position, I suppose, ex post facto, would say it was proper to foresee.

What danger of particular infirmity that would include must depend on all the circumstances, but
generally, I think a reasonably normal condition, if medical evidence is capable of defining it,
would be the standard.
In King vs Philips:

a taxi-cab driver negligently backed his cab without looking where he was going and ran into a
small boy on a tricycle. His mother who was in her home 70 to 80 yards away heard his scream,
and, looking out of the window, saw his peril. She suffered nervous shock.

The question was whether she could recover damages on that account. It was held that she could
not recover because no "hypothetical reasonable observer", (Lord Wright in Bourhill vs Young")
could reasonably or probably have anticipated that injury, either physical or nervous, could have
been caused to her by the backing of the taxi without due attention as to where it was going; and,
accordingly, the driver owed no duty to the plaintiff and was not negligent towards her. Lord
Denning thought the damage too remote.

In addition to the other reasons we have noted for the reluctance of the courts to allow liability in
these cases, we may also observe that it looks like their reluctance was due to the fact that, as a
whole, the law lags behind scientific knowledge.

Yet as early as 1901, in :

Dulieu vs White:

Kennedy J. was willing to found liability for nervous shock negligently caused, though he
expressed the view that "the shock, where it operates through the mind, must be a shock which
arises from a reasonable fear of immediate personal injury to one self." In this case, the
defendants were held liable, when their servant negligently drove a pair-horse van (it is a van
drawn by horses) into the front of a public-house, with resultant shock and illness to the plaintiff
who was standing behind the bar. She gave birth prematurely in consequence. The reasons why
her damages were held recoverable seem to have been the fact that:

(1. she was within the area of potential danger,

2. she took fright out of fear for her own safety. i.e. presence and fright for one's safety.
But, even before Page vs Smith," it seems settled that shock, if reasonably foreseeable, may give
rise to a claim, even though it is not caused by fear for oneself or one's child. We may recall here
that in Chadwick vs B.T.C., the plaintiff suffered psycho-neurosis and anxiety neurosis after
helping in rescuing many people after the collision of two trains in which 90 people died and
several others were injured.

The court held that, even though he was a volens (volunteer), the Railway Commission owed
him a duty of care, which duty was breached and his illness was suffered as a result of this
breach. This conclusion was because it was reasonably foreseeable that, when such accidents
occur, people would come to rescue the victim and might be injured in the process.

The result of the cases, or what clearly stands out from the cases, is that it is nowadays
unnecessary for the plaintiff to show that he was himself in danger of physical impact.
Foreseeability of injury from shock is what the law requires. So the "shock theory" has now
assumed ascendancy.

Again, the issue is one of policy. The foreseeability of harm, and the defendant's knowledge of
the plaintiff's presence would be sufficient to create a duty, whether the harm or damage is
PHYSICAL or nervous shock.

In their recent decision,

Page vs Smith:

the English House of Lords have made an interesting distinction between primary victims and
secondary victims of negligence causing nervous shock. The court held that two different tests
arise in the cases of primary and secondary victims in relation to shock.

In the case of primary victims of an accident who suffer shock the test will be the same as for
physical injury; namely whether the defendant could reasonably foresee that his conduct would
expose the plaintiff to the risk of personal injury, whether physical or psychiatric.

For secondary victims, that is, persons who were not participants in an accident as Lord Berwick
put it, the test will be whether injury by shock was foreseeable in a person of normal fortitude.

This is a control mechanism introduced as a matter of policy to limit the number of potential
claimants. These control mechanisms have no place where the plaintiff is a primary victim. As
Lord Lloyd explained, in cases involving nervous shock, it was necessary to distinguish between
the primary victim and secondary victims. In claims by secondary victims, it may be legitimate
to use hindsight in order to be able to apply the test of reasonable foreseeability at all. However,
hindsight has no part to play where the plaintiff is the primary victim.
The leading case on secondary victims and nervous shock is now :

Mcloughlin vs O'Brian:

This was a case on appeal. Almost the entire report is reproduced here because of the importance
of the judgment in the House of Lords, especially the opinion of Lord Wilberforce.

In that case a tragic road accident occurred in October, 1973, near Withersfield, Suffolk. The
plaintiff's husband and three of her children were involved in an accident when their car collided
with a lorry driven by the first defendant and owned by the second. That lorry had been in
collision with another lorry driven by the third defendant and owned by the fourth.

It was admitted that the accident to the car was caused by the defendant's negligence. As a result
of the accident, the husband suffered bruising and shock; George, aged seventeen, suffered facial
and head injuries, cerebral concussion, fractures of both scapulae and bruising and abrasions;
Kathleen, aged seven, suffered concussion and other injuries; Gillian, aged three, was so
seriously injured that she died almost immediately.

At the time, the plaintiff was at her home about two miles away. An hour or so later, the accident
was reported to her by a neighbour, Mr. Pilgrim, who told her that he thought George was dying,
and did not know the whereabouts of her husband or the condition of her daughter.

He then drove her to Addenbrooke's hospital, Cambridge. There she saw Michael, a fourth child
not in the accident, who told her that Gillian was dead. She saw through a corridor window
Kathleen crying, with her face out and begrimed with dirt and oil. She could hear George
shouting and screaming. She was taken to her husband who was sitting with his head in his
hands, his shirt hanging off him and he was covered in mud and oil.

He saw his wife and started sobbing. She was then taken to see George; the whole of his left face
and side were covered. He appeared to recognize her and then lapsed into unconsciousness.
Finally, she was taken to Kathleen who had been cleaned up but was too upset to speak and
simply clung to her mother. There could be no doubt that those circumstances, witnessed by the
plaintiff, were distressing in the extreme and capable of producing an effect going well beyond
that of

grief and sorrow. The plaintiff later brought proceedings against the four defendants for what
was pleaded as severe shock, organic depression and change of personality. The trial judge was
asked to assume that her condition had been caused or contributed to by shock, as distinct from
grief or sorrow and that the plaintiff was a person of reasonable fortitude.

Decision in the trial court and Court of Appeal The trial court judge held, however, in a most
careful judgment reviewing the authorities, that the defendants owed no duty of care to her
because the possibility of her suffering injury by nervous shock, in the circumstances, was not
reasonably foreseeable. His judgment was upheld on appeal but not on the same ground.

Lord Justice Stephenson took the view that the possibility of injury to her by nervous shock was
reasonably foreseeable and that the defendants owed her a duty of care. However, he held that
considerations of policy prevented her from recovering. Lord Justice Griffiths held that injury by
nervous shock to the plaintiff was "readily foreseeable" but that the defendants owed her no duty
of care; the duty was limited to those on the road nearby. Lord Justice Cumming-Bruce agreed
with both judgments.

Decision in the House of Lords

The critical question in the appeal to the House of Lords was whether a person in the position of
the plaintiff, that is a secondary victim-one who was not present at the scene of grievous injuries
to her family but who came upon them at an interval of time and space, could recover damages
for nervous shock-such shock was now recognized and identifiable as an illness as any that
might be caused by direct physical impact.

Existing law

Lord Wilberforce noted the position on the authorities as they then stood namely:. While
damages could not, at common law, be awarded for grief and sorrow, a claim for damages for
nervous shock caused by negligence could be made without the need of showing direct impact or
fear of immediate personal injuries for oneself.

2. A plaintiff might recover damages for nervous shock brought on by injury caused not to him
or herself but to a near relative or by the fear of such injury.

3. Subject to paragraph four infra, there was no English case in which a plaintiff had been able to
recover nervous shock damages where the injury to the near relative occurred out of sight and
earshot of the plaintiff.

In Hambrock vs Stokes Brothers:

an express distinction was made between shock caused by what the mother saw with her own
eyes and what she might have been told by bystanders, liability being excluded in the latter case.
The crux of what the House of Lords was called upon to decide, in the case, in the view of Lord
Wilberforce, was whether to allow the latter claim.

1. An extension of the latter case had been made where the plaintiff did not see or hear the
incident but came on its immediate aftermath.

In Boardman vs Sanderson:

the father was within earshot of the accident to his child and likely to come on the scene; he did
so and suffered damage from what he then saw.

In Marshall vs Lionel Enterprises:

the mother was in her home 100 yards away, and on communication by a third party, ran to the
scene of the accident and there suffered shock. Their lordships had to decide whether to validate
these extensions of nervous shock was given to a man who came to a serious accident involving
many people immediately thereafter and acted as a rescuer:
Chadwick vs British Railways Board:

Shock was caused neither by fear for himself nor on account of a near relative. The principle of
rescuer cases should be accepted, but the house had to consider whether, and how far, it could be
applied to cases like the present.

Lord Wilberforce continued that throughout these developments, the courts had proceeded in the
traditional manner of the common law from case to case, on a basis of logical necessity. Unless
the law was to draw an arbitrary line at the point of direct sight and sound, the extension under
paragraph 4 above required acceptance in the interests of justice. On the logical progression in
the decided cases, it was hard to see why the present plaintiff should not succeed. But he noted
that he and his colleague Lordships had been deeply impressed by the arguments of the two Lord
Justices in the Court of Appeal that, at the margin, the boundaries of a persons's responsibility
for acts of negligence had to be fixed as a matter of policy.

On the approach of Lord Atkin stating the neighbour principle in Donoghue vs Stevenson,"
foreseeability had to be accompanied and limited by the law's judgment as to persons who ought,
according to its standards of value or justice, to have been in contemplation.

POLICY ARGUMENTS AGAINST LIABILITY

In Lord Wilberforce's view, the policy arguments against a wider extension came under four
heads:

1. First, it might be said that such extension might lead to a proliferation of claims and possibly
fraudulent claims, to the establishment of an industry of lawyers and psychiatrists who would
formulate a claim for nervous shock damages for all, or many, road and industrial accidents.
2. Secondly, it might be claimed that an extension of liability would be unfair to defendants, as
imposing damages out of proportion to the negligent conduct complained of. In so far as such
defendants were insured, a large additional burden would be placed on insurers, and ultimately
on the insured: road users or employers.

3. Thirdly, to extend liability beyond the most direct and plain case would greatly increase
evidentiary difficulties and lengthen litigation. And fourthly, as the Court of Appeal agreed, an
extension of the scope of liability ought only to be made by the legislature. (separation of powers
argument!). According to the leamed law lord, just because shock in its nature was capable of
affecting a wide range of people, there remained, a real need for the law to place some limitation
on the extent of admissible claims.

FACTORS TO BE TAKEN INTO ACCOUNT

In his considered view, three elements had to be considered:

1. the class of persons whose claims should be recognised;

2. the proximity of such persons to the accident; and

3. the means by which the shock was caused:

(1.) As regarded the class of persons, the possible range was between (1) the closest of family
ties of parent and child, or husband and wife - and

(2) the ordinary bystander. The existing law recognised the claims of the first: it denied those of
the second, either on the basis that such persons had to be assumed to be possessed of fortitude to
enable them to endure the calamities of modern life, or that the defendants could not be expected
to compensate the world at large.
Those positions were justifiable and since the present case fell within the first class, it was
strictly unnecessary to say more. His lordship thought, however, that other cases involving less
close relationships must be very carefully scrutinised. The closer the tie the greater the claim for
consideration.

(2) On proximity to the accident, it was obvious that it must be close in both time and space. It
was, after all, the fact and consequence of the defendant's negligence that must be proved to have
caused the nervous shock. Experience had shown that to insist on direct and immediate sight or
hearing would be impractical and unjust and that under what might be called the "aftermath"
doctrine, one who, from close proximity, came very soon on the scene should not be excluded.
The result in Benson vs Lee was correct and indeed inescapable. But a strict test of proximity by
sight or hearing should be applied by the courts.

(3) As to communication, there was no case in which the law had compensated shock brought
about by a third party.

The shock must come through sight or hearing of the event or of its immediate aftermath by the
person making the claim (i.e. the plaintiff). Whether some equivalent of sight or hearing, for
example, through simultaneous television, would suffice might have to be considered.

His Lordship did not feel that his indications, as sketched in the foregoing paragraphs introduced
a new principle. Nor did his Lordship see why the law should retreat behind the lines already
drawn. He would allow her appeal.

Lord Edmund Davies, concurring in the result, said that the sole basis on which the Court of
Appeal had dismissed the claim was that of public policy on the ground of what might be called
the "floodgates" argument. His Lordship was unconvinced that the number and area of claims in
shock cases would be substantially increased or enlarged were the defendants here held liable.

In the present case, two totally different points arising from the speeches of two of their lordships
called for further attention, both relating to the Court of Appeal's invoking of public policy.

Lord Bridge seemingly doubted that any regard should have been had to such a consideration,
the sole test of liability being the reasonable foreseeability of injury to the plaintiff through
nervous shock resulting from the defendants' conceded default. And, such foreseeability having
been established, it followed that, in law, no other course was open to the Court of Appeal than
to allow the appeal.

Lord Edmund-Davies could not accept that approach. Nor could his Lordship agree with what he
understood Lord Scarman to say, that public policy had no relevance to liability to law.

For Lord Edmund-Davies the proposition that "... the policy issue justiciable" was as novel as it
was startling. So novel that in this appeal it was never is not mentioned during the hearing in the
house.

And startling because it ran counter to well established law. As Lord Reid had said in British
Railways Board vs Herrington:

"Legal principles cannot solve the problem. How far occupiers are to be required by law to take
steps to safeguard such children must be a matter of public policy." In accordance with the
authorities, public policy issues were justiciable. As Winfield had said:

"The difficulty of discovering what public policy is at any given moment certainly does not
absolve the bench from the duty of doing so. The judges are bound to take notice of it and of the
changes which it undergoes, and it is immaterial that the question may be one of ethics rather
than of law.

In the present case the Court of Appeal did just that, and they were right in doing so. But they
concluded that public policy required them to dismiss what they clearly regarded as an otherwise
undeniable claim. In that they were wrong.

Lord Russell said that if the effect on the wife and mother of the results of the defendants'
negligence was considered to have been reasonably foreseeable, his Lordship did not see any
justification for not finding them liable in damages therefor. He would not shrink from regarding,
in an appropriate case, that policy was something which might feature in a judicial decision. In
the last analysis, any policy consideration seemed to be rooted in a fear of floodgates opening.
His Lordship was not impressed by that fear- certainly not sufficiently to deprive the plaintiff of
just compensation for the reasonably foreseeable damage done to her.
Lord Scarman, accepting Lord Bridge's approach to the law and the conclusion he reached, also
shared the Court of Appeal's anxieties and differed from that Court in that he was persuaded that,
in this branch of the law, it was not for the courts but for the legislature to set limits, if any be
needed, to the law's development. He felt that the present appeal raised directly a question as to
the balance in English law between the functions of judge and legislature.

The distinguishing feature of the common law was judicial development and formulation of
principle. Policy considerations would have to be weighed; but the objective of judges was the
formulation of principle. And if principle inexorably required a decision which entailed a degree
of policy risk, the court's function was to adjudicate according to principle, leaving policy
curtailment to the judgment of Parliament. If principle led to results which were thought to be
specially unacceptable, Parliament could legislate to draw a line or map out a new path. In this
case, common law principle required the judges to follow the logic of the "reasonably
foreseeable test" so as in appropriate circumstances, to apply it untrammeled by spatial, physical,
or temporal limits.

But his Lordship was not sure that the result was sociably desirable. He foresees social and
financial problems, if damages for nervous shock should be made available to persons, other than
parents and children, who, without seeing or hearing the accident, or being present in the
immediate aftermath, suffered nervous shock in consequence of it. There was a powerful case for
legislation such as that enacted in New South Wales and the Australian Capital Territories.

Why then he asked, should not the courts draw the line, as the Court of Appeal tried to do in the
present case? Simply because the policy issue as to where to draw the line was not justiciable.
His Lordship would allow the appeal for the reasons developed by Lord Bridge.

Lord Bridge said that the whole area of English law concerning the liability of a tortfeasor who
had negligently killed or physically injured Albert to pay damages to Ben for the psychiatric
illness resulting from Albert's death or injury stood in urgent need of review. The basic difficulty
of the subject arose from the fact that the crucial answers to the questions it raised lay in the
difficult field of psychiatric medicine.

The first hurdle a plaintiff claiming damages of the kind in question must surmount was to
establish that he was suffering, not merely grief, distress or any other normal emotion, but a
positive psychiatric illness; and must then establish the necessary chain of causation in fact
between his psychiatric illness and the death or injury of one or more third parties negligently
caused by the defendant.

The all-important question was whether the chain of causation, considered ex post facto in the
light of what had happened was "reasonably foreseeable" by the "reasonable man." The answer
to that depended on what knowledge was to be attributed to the hypothetical reasonable man of
the operation of cause and effect in psychiatric medicine - which was far from being an exact
science.

It would seem that the consensus of informed judicial opinion was probably the best yardstick
available to determine whether, in any given circumstances, the emotional trauma resulting from
the death or injury of third parties, or ex hypothesi attributable to the defendant's negligence, was
a foreseeable cause in law, as well as the actual cause in fact, of the plaintiff's psychiatric or
psychosomatic illness.

The question for decision was whether the law, as a matter of policy, drew a line which
exempted from liability a defendant whose negligent act or omission was actually and
foreseeably the cause of the plaintiff's psychiatric illness.

His Lordship considered the relevant authorities and said that in approaching the question
whether the law should, as a matter of policy, define the criterion of liability in negligence for
causing psychiatric illness by reference to some other than that of reasonable foreseeability, it
was well to remember that they were concerned only with the question of liability of a defendant
who was ex hypothesi guilty of fault in causing the death, injury or danger which had in turn
triggered off the psychiatric illness.

His Lordship saw no ground for suggesting that to make the defendant liable for reasonably
foreseeable psychiatric illness caused by his negligence would be to impose a crushing burden on
him out of proportion to his moral responsibility. The successful claims in this field and the
quantum of damages they would attract were likely to be moderate.

To attempt to draw a line at the further point which any of the decided cases happened to have
reached, and to say that it was for the legislature, not the courts, to extend the limits of liability
any further, would be an unwarranted abdication of the court's function of developing and
adapting principles of the common law to changing conditions, in a particular corner of the
common law which exemplified the important and indeed necessary part which that function had
to play.

This was an area of the law of negligence where the house should resist the temptation to try yet
once more to freeze the law in a rigid posture which would deny justice to some who, in the
application of the classic, principles of negligence derived from Donoghue vs Stevenson, ought
to succeed.

The defendant's duty must depend on reasonable foreseeability and must be adjudicated only on
a case by case basis. If asked where the thing was to stop, his lordship would answer: "Where in
the particular case the good sense of the judges, enlightened by progressive awareness of mental
illness, decided."

The most important result of this case is that it removes nervous shock in the case of secondary
claimants from any special categorisation in negligence. This is now dependent on factors of
space, time and the relationship of the plaintiff to the victim as well as the victim's injuries.
These factors are left to the good sense of the judges. However, we must note the disagreements
among the law lords on the role of policy in the application of the factors.

The English House of Lords followed the analysis of Lord Wilberforce in the O'Brian's case in
Alcock vs Chief Constable of South Yorkshire, by taking the view that all relationships based on
ties of love and affection are covered by his "class of persons" category.

This extends the category to all relationships where it can be established that ties of love and
affection exist. But this does not make the precise identification of the relevant relationships any
easier.

PECUNIARY LOSS

In the beginning, the courts maintained that acts which, although they do foreseeable harm,
namely damage another in his financial interests, did not involve physical injury to his person or
property, are not actionable as negligence.
It may be recalled that in Donoghue vs Stevenson, Lord Atkin had talked about injury to person
or property. Thus, the law as it stood until the 1960s was that there was no liability for depriving
a person of profit, example Weller vs Foot & Mouth Disease Institute. The policy reasons behind
the courts' general reluctance to impose a duty, where, as a result of negligence, the plaintiff had
suffered purely pecuniary loss, may here be noted:

(a) Problems of limiting the extent of liability, or the floodgates fear, example Albert fails to
deliver machinery to Ben, a manufacturer - should Albert be liable to all Ben's employees who
lose wages as a result of this: see Electrochrome, and Weller's Case; and Cattle vs Stockton
Water Works.

1. Sometimes the person suffering the loss may be in a better position to absorb it than the
negligent defendant, example Electrochrome. (c) General judicial reluctance to establish liability
for unintentional invasion of economic interests: see Weller vs Foot & Mouth Disease.

2. Difficulty of classifying purely pecuniary loss. A buys an article which is defective. Generally
there would be no liability in torts on the part of the manufacturer, unless the article has caused
damage of a physical nature.

Flowing from this reluctance, it was maintained, for example, for a long time that false
statements causing pecuniary loss to the plaintiff did not constitute a cause of action in
negligence, but only in deceit or contract. The courts, it was maintained, were concerned with
physical loss or damage to the person or property and not intangible loss resulting from
misstatement.

Candler vs Crane Christmas :

an accountant carelessly prepared a company's accounts. He knew, at the time, that, this was to
be shown to a prospective investor. The investor, relying on the rosy picture painted in the
accounts invested heavily in the company. Later, the company went into liquidation and he
sought to sue the accountants for negligently preparing the accounts.

HELD:
It was held by the majority of the Court of Appeal that, absent a contractual or fiduciary
relationship between the accountant and the plaintiff, there would be no liability. This judgment
produced one of the most famous judicial proses of a dissenting judge. Lord Denning, the judge
noted:"

If you read the great cases, you will find that in each of them the judges were divided in opinion.

On the one side, there were the timorous souls who were fearful of allowing a new cause of
action.

On the other side, there were the bold spirits who were ready to allow if justice so required. It
was fortunate for the common law that the progressive view prevailed.

I beg leave to quote those cases and those passages against those who would emphasise the
paramount importance of certainty at the expense of justice. It needs only a little imagination to
see how much the common law would have suffered if those decisions had gone the other way."

Denning" also thought that liability for negligence should not depend on the nature of the
damage (so immaterial to him whether physical injury to life or property is absent). The primary
question is whether a duty exists. See also on the situation where, according to Lord Denning, a
duty of care will exist for liability for misstatement.

The way was paved for a change in this attitude by the momentous decision in:

Hedley Byrne vs Heller & Partners:

Suffice it to note here that, by recognizing liability for pecuniary loss and placing this on the
same level as injury to person or property, this case revolutionized the tort of negligence in much
the same way as Donoghue vs Stevenson's had done earlier.

Since then two High Court decisions have allowed recovery for loss of profit or gain without any
damage to person or property.
Midland Bank Trust Company Limited vs Hett, Stubbs & Kemp:

Here a solicitor carelessly failed to register an option to purchase a farm. The owner of the farm
later sold it to another, so the plaintiff lost the chance of exercising the option. Oliver J held that
the plaintiff's executor (the plaintiff died at the time) could recover in tort against the solicitor,

Ross vs Caunters:

A solicitor so negligently executed a will that a bequest failed. Megary V-C held that the
disappointed beneficiary could recover the value of the bequest from the solicitor. Megary said
that the loss of foreseeable profit should be recoverable only if it was foreseeable to a
specifically identifiable person and not just a member of an indeterminate group. Three cases
arise from the Hedley Byrne revolution.

SCM (UK) Ltd. vs W.J. Whitall & Sons Ltd:

In that case, the defendants were building contractors. While rebuilding a boundary wall, one of
their workmen damaged an electric cable owned by the electricity board which ran alongside the
road. The cable supplied electricity to several factories bordering the road, including the
plaintiff's factory. The plaintiffs manufactured typewriters and copying machines.

They suffered particularly because at the time of the interruption, they had molten materials in
their machines. These materials solidified owing to lack of electric heat. The company was put to
much trouble in getting the machines clear. They had to strip them down and chip away the
solidified material and re-assemble the machines. Some parts of the machines were damaged
beyond repair. They lost the value of these items as well as profit from one full day's production.

The plaintiff's brought this action alleging that the defendants had negligently damaged the cable
thereby causing a seven-hour power failure in their factory, resulting in damage to materials and
machines and consequential loss. In their amended statement of claim, the plaintiffs alleged that
the defendants were negligent, and that the consequences of their acts were reasonably
foreseeable and that they owed a duty to the plaintiffs to take reasonable care not to damage the
cable.
The defendants denied that they owed any duty of care to the plaintiffs or that they were
negligent. Alternatively, they also argued that the damages were too remote.

On the preliminary issue of whether, on these facts, the defendants were liable in law to the
plaintiffs for the damage claimed, that is whether they owed the plaintiffs a duty of care,
Thesiger J. decided that defendants were liable. They appealed.

The Court of Appeal upheld Thesiger's holding and dismissed the appeal.

The court was of the view that, on the allegations in the amended statement of claim, (that the
defendants knew that the cable supplied current to the factory owners in the neighbourhood and
that, if they damaged the cable, the current would be cut off and damage would be suffered), the
defendants owed the plaintiffs a duty of care and, accordingly, they were liable for the material
damage and consequent loss of production suffered.

The following extracts from Denning M.R's judgment explains the rationale behind the appellate
court's decision:

"It must be accepted that the contractors were negligent in danaging the cable and that they ought
reasonably to have foreseen that, if they damaged the cable, the supply of current to factories
would be likely to be interfered with and that the occupiers, such as the plaintiffs, would be
likely to suffer loss and damage, including injury to their property.

It is well settled that when a defendant by his negligence causes physical damage to the person or
property of the plaintiff, in such circumstances that the plaintiff is entitled to compensation for
the physical damage, then he can claim, in addition, for economic loss consequent on it.

Thus a plaintiff who suffers personal injuries recovers his loss of earnings; and a ship owner,
whose ship is sunk or damaged, recovers for his loss of freight.""

"Did the contractors owe a duty of care to the factory owners? I think it plain that they did. They
were working near an electric cable which they knew supplied current to all the factory owners
in the neighbourhood.

They knew that, if they damaged the cable, the current would be cut off and damage would be
suffered by the factory owners. Those simple facts put them under a duty to take care not to
injure the cable: and this was a duty which they owed to all factory owners in the vicinity.
It comes straight within the principle laid down by Lord Atkin in Donoghue vs Stevenson.
Applying that case, I hold that the contractors are liable for all the material damage done to the
factory owners and any loss of profit consequent thereon.

"The law is the embodiment of common sense: or, at any rate, it should be. In actions of
negligence, when the plaintiff has suffered no damage to his person or property, but has only
sustained economic loss, the law does not usually permit him to recover that loss. The reason lies
in public policy.

It was first stated by Blackburn J in Cattle vs Stockton Water Works Co. and has been repeated
many times since. He gave this illustration: When a mine is flooded by negligence, thousands of
men may be thrown out of work. None of them is injured, but each of them loses wages.

Has each of them a cause of action? He thought not. So here I would ask: When an electric cable
is damaged, many factories may be stopped from working.

Can each of them claim for their loss of profit? I think not. It is not sensible to saddle losses on
this scale onto one sole contractor. Very often such losses occur without anyone's fault. A mine
may be flooded, or a power failure may occur, by mischance as well as by negligence. Where it
is only mischance, everyone grumbles but puts up with it.

No one dreams of bringing an action for damages. So also when it occurs by negligence. The risk
should be borne by the whole community who suffer the losses rather than rest on one pair of
shoulders, that is, on one contractor who may, or may not, be insured against the risk. There is
not much logic in this but still it is the law."

He then goes on to explain that damage, when no injury occurs either to property or person, is
denied because it is too remote. He continues: I must not be taken, however, as saying that
economic loss is always too remote.

There are some exceptional cases when it is the immediate consequence of the negligence and is
recoverable accordingly. Such is the case when a banker negligently gives a good reference on
which a man extends credit and loses the money.

The plaintiff suffers economic loss only, but it is the immediate - almost, I might say, the
intended consequence of the negligent reference and is recoverable accordingly. Another is when
the defendant by his negligence damages a lorry which is carrying the plaintiff's goods.
The goods themselves are not damaged, but the lorry is so badly damaged that the goods have to
be unloaded and carried forward in some other vehicle. The goods' owner suffers economic loss
only, namely, the cost of unloading and carriage, but he can recover it from the defendant
because it is immediate and not too remote."

The second case is Electrochrome Ltd. vs Welsh Plastics Ltd:

Here the plaintiffs and defendants had their factories on the same industrial estate and were
supplied water on the same circuit.

A servant of the defendants negligently drove their lorry and collided with and damaged a fire
hydrant which was near the defendants' factory. Water flowed from the damaged hydrant and
therefore the water supply was cut off at the mains.

As a result of the cutting off of the water supply, the plaintiffs were without water and this
caused the loss of a day's work at their factory (estimated at £29 10s). The main and the hydrant
did not belong to the plaintiffs but seemed to belong to the owners of the industrial estate.

The plaintiffs brought the present action in negligence to recover the amount of their loss from
the defendants. It was held, per Geoffrey Lane J. that the action did not lie because there was no
injury suffered by the plaintiffs or their property although they suffered damage, that is it was
pure economic loss. According to Justice Geoffrey Lane, the duty owed by the defendants not to
negligently damage the hydrant was owed to the owners of the hydrant but not the plaintiffs. He
stated the rationale for his decision as follows:

"In the case of water being cut off in this manner one can imagine a whole series, may be
hundreds, of actions being brought against the defendants based on this type of negligence... the
complexity of society would mean in effect that there might be no end to the concatenation of
resulting damage."

Remember Megary V-C said in Ross Caunters that Loss of reasonably foreseeable profit should
be recoverable only if it was foreseeable to a SPECIFICALLY IDENTIFIABLE PERSON and
not just to a MEMBER OF AN INDETERMINABLE GROUP. Thus, here, duty was denied
because of the fear of provoking an endless chain of claims.
Spartan Steel & Alloys Limited vs Martin & Company:

In that case the defendants' employees were digging up a road with a power-driven excavating
shovel when they negligently damaged an electric cable which, to their knowledge, supplied the
plaintiffs' factory with electricity. The plaintiffs were thus without electricity for about fourteen
hours, which was the time it took the Electricity Board to repair the cable.

The plaintiffs were manufacturers of stainless steel. At the time the power was shut off, there
was an arc furnance in which metal was being melted in order to be converted into ingots.
Electricity was needed throughout to maintain the temperature and melt the metal.

When the power was cut off, there was danger that the metal might solidify in the furnance and
do damage to the lining of the furnance. So the plaintiffs used oxygen to melt the metal and
poured it out of the furnance. But that depreciated the value of the metal, which was assessed as
£368.

In addition, if the processing of that particular metal had been properly completed, the plaintiffs
would have made a profit of £400. Furthermore, during the period of the power cut off, the
plaintiffs would have been able to process four more metals and earned a profit of £1767. In their
action, they sought to claim all these sums as damages against the defendants for negligence.

The defendants admitted liability for the £368 and reluctantly for the £400, but denied the claim
for £1767. The last sum to them was pure economic loss which was too remote.

Faulks J. ruled against them and they appealed.

HELD:

The Court of Appeal, held that the appeal should be allowed. The plaintiffs could recover £400
as damages, as the loss of profit from the metal was foreseeable financial damage immediately
consequential on the foreseeable physical damage to the metal, but they were not entitled to
recover the loss of profit from the four unprocessed metals due to the negligent interruption of
the electricity supply.

Edmund Davies L.J. thought, however, that the appeal should be dismissed. Where a defendant
who owes a duty to a plaintiff breaches that duty and, as both a direct and a reasonably
foreseeable result of that injury, the plaintiff suffers only economic loss, he is entitled to recover
that loss as damages and, since the plaintiff's loss was both the direct and foreseeable
consequence of the defendant's negligence, they were rightly awarded damages for their financial
loss.

For the last word on pecuniary loss and public policy, let us look at Weller vs Foot and Mouth
Disease Institute." In that case the plaintiffs were auctioneers. The defendants occupied premises
where they did experiments with foot and mouth disease virus. As a result of the escape of virus
from the institute (African virus!), cattle in the area became infected. The Ministry of Agriculture
therefore closed down two markets in the area. During the closure, the plaintiffs were unable to
carry on their business and they brought their action.

The Institute raised a preliminary objection that, even if they were careless and loss to plaintiffs
was foreseeable and they had caused the loss still there would be no cause of action since failure
to make a profit was not damage in the law, i.e. no duty. The judge upheld this objection.

The plaintiff's case failed. It was held that the duty of care in this case was owed only to those
whose person or property might be foreseeably injured by the failure to take care. Widgery J
explained his decision thus:

"It may be observed that if this argument is sound, the defendants' liability is likely to extend far
beyond the loss suffered by the auctioneers, for in an agricultural community the escape of foot
and mouth disease virus is a tragedy which can foreseeably affect almost all businesses in that
area.

The affected beasts must be slaughtered, as must others to whom the disease may conceivably
have spread. Other farmers are prohibited from moving their cattle and may be unable to bring
them to market at the most profitable time; transport contractors who make their living by the
transport of animals are out of work; dairymen may go short of milk, and sellers of cattle feed
suffer loss of business.

The magnitude of these consequences must not be allowed to deprive the plaintiffs of their
rights, but it emphasizes the importance of this case."

Thus in the case of pecuniary loss, the law became settled as follows:

1. If there is a contractual or fiduciary relationship between the parties, the loss is reasonable.
2. If the loss is the immediate consequence of the negligence, it is recoverable

3. If the loss arises from damage to person or property, it is recoverable.

4. If the loss is consequent upon injury to person or property, it is recoverable.

In all other cases, the loss is remote and is not recoverable. That is to say duty is recognised in
the first four, but denied otherwise.

CONCLUSION

By way of summary then we may note that the factors taken into account by the courts in
admitting a duty of care are:

1. reference to earlier authorities, that is precedent

2. in novel situations, three factors are decisive, namely,

1. reasonable foresight of harm

2. proximate relationship between parties that is are they neighbours in law? according to Lord
Atkin in Donoghue vs Stevenson

3. whether it is fair, just and reasonable to impose duty as stated in Caparo.At the end of the
examination of the case law on the rescue, nervous shock and pecuniary loss cases, what stands
out clearly is that certain important principles have been developed. Nevertheless, at the end of
the day, the existence of a duty of care, in a given circumstance, depends, to a significant extent,
on public policy considerations as perceived by the judges.
The factors which may inhibit imposition of a duty of care are:

1. Distinction between misfeasance and non-feasance.

2.Availability of an alternative remedy, example under a contract as in Simaan's or the possibility

of judicial review.

3. Unwillingness to undermine established principles of the common law or equity. case

4. No duty recognised previously, that is absence of precedent (timorous souls) or where a long
line of authority has denied duty in those circumstances.

4. Role of Parliament, that is the courts' perception of which institution should appropriately deal
with situation, that is where Parliament has intervened to regulate a particular issue, the courts,
as a matter of policy, would be unwilling to go beyond what Parliament has done by extension of
the common law.

Are there degrees of a duty of care? See Assalah vs Appiah & Others:

In this case, the court said that an articulator driver who is entering a main road from a side street
owes a higher duty of care to other road users than a driver of ordinary vehicles. By this
statement, the court seemed to be suggesting that there are degrees of duty of care. This is clearly
a misstatement of law which betrays a certain lack of comfort with the concept of a duty of care.
The judge could only have intended to say that the standard of care to be expected of such a
driver such as articulated driver, is higher than to be expected of an ordinary driver."

NEGLIGENCE

Additional information for readers to note

1. Liability in negligence for acts of third parties: see Smith v Organisation Ltd. Littlewoods

2. Lord Templeman in CBS Songs vs Amstrad Consumer Electronics plc .

3. Smith vs Burns, Donoghue vs Stevenson"- the not so golden anniversary.

Nervous shock or psychiatric illness

(a) Victorian Railway Commissioners vs Coultas - no duty for nervous shock arising from
defendant's negligence because not the type of injury normally arising from negligence.

(b) Alcock vs Chief Constable of South Yorkshire," adopted Lord Wilberforce's three elements
approach in O'Brian for imposing liability in nervous shock cases as opposed to Lord Bridge's
reliance on the same case on foreseeability of harm which alone was said to be inadequate.

Other interesting negligence cases

1. Mckay vs Essex Area Health Authority. Is it negligent to give birth at all to a child? example
where parents are so poor they cannot bring him up and he ends up being wayward.

2. Emeh vs Kensington & Chelsea Westminster AHA. Unwanted child (is the birth of a child
whose arrival disrupts family finance a beneficial event to the parents or detrimental event?

3. Criticism of immunity of barristers from negligence action, Whelan & Veljanovsky.

BREACH OF DUTY-STANDARD OF CARE

The second element which the plaintiff in an action for negligence must prove is that the
defendant's conduct amounted to a breach of the duty owed. Proving this breach involves
measuring the defendant's conduct against the standard required of persons engaging in the
activity or conduct in question by the law.

The standard used for arriving at or resolving the issue of breach is that of the reasonable man.
This involves a balancing of the risks involved in the activities being used as the basis for the
negligent action against other factors such as, for example, advantages. The standard of care
required by the law of negligence is an objective one. What is objective for this purpose is
incorporated in the concept of the "reasonable man as per Tindal C.J. in Menlove vs Vaughan,
"the man of ordinary prudence".

But the point here really is not so much that the law adopts an objective standard or uses the
reasonable man concept to determine when a breach of duty will be said to have occurred. The
important thing is that, generally, the courts treat certain personal characteristics of the defendant
as irrelevant, personal characteristics such as age.

In deciding then what the standard of care is and whether the duty of care has been breached, the
courts take into account certain key matters or factors:

1. The likelihood of injury or foreseeability of harm

2. The magnitude or seriousness of the risk or harm

3. The social value of the defendant's conduct or enterprise or the importance of the activity
being engaged in for society or the end to be achieved.

4. The difficulty or expense involved in averting the foreseeable harm or taking safety measures
as against the risk.
5. Whether the activity or conduct complies with general and approved practice. These factors
have been outlined in the cases of Kite vs Nolan' and Daborn vs Bath Tramways."

All these factors are assessed as at the time when the harmful conduct occurred and having
regard to the circumstances then obtaining. We shall now consider these factors one by one.

1. THE LIKELIHOOD OF INJURY

Here, the courts consider the nature of the activity the defendant is engaging in that is whether
the defendant is engaging in an activity which is fraught with danger. The more dangerous the
activity, the greater the degree of care required. The point can be illustrated by the decision in

Bolton vs Stone:

In that case, a person on the side road of residential houses was hit and injured by a player on a
cricket ground abutting on that highway. The ground was enclosed on that side by a seven-feet
fence, the top of which, owing to a slope, stood seventeen feet above the level of the pitch. The
wicket from which the ball was hit was about 78 yards from this fence and 100 yards from the
place where the injury occurred. There was evidence that while over a period of years balls have
been struck over the fence on very rare occasions (6 in 28 years), the hit now in question was
altogether exceptional. It was held that the members of the club were not liable in damages to the
injured person whether on the ground of negligence or nuisance. Lord Porter put the principle
succinctly thus:

in order that the act may be negligent there must not only be a reasonable possibility of its
happening, but also of injury being caused. In the words of Lord Thankerton in Bourhill vs
Young' the duty is to exercise such reasonable care as will avoid the risk of injury to such
persons as he can reasonably foresee might be injured by failure to exercise such reasonable care.

It is not enough that the event be such as can reasonably be foreseen; the further result that injury
is likely to follow must also be such as a reasonable man would contemplate, before he can be
convicted of actionable negligence. Nor is the remote possibility of injury occurring enough;
there must be sufficient probability to lead a reasonable man to anticipate it." So, in principle, a
person cannot be said to have breached his duty in respect of an injury which is so unlikely that
the reasonable man will not provide against it.
2. The magnitude or seriousness of the risk

The law does not require the highest possible degree of care, but that which is commensurate
with, inter alia, the seriousness of injury risked. This depends on the consequences of the activity
in question.

Paris vs Stepney Borough Council:

it was held that in the case of a workman suffering to the employer's knowledge, from a
disability which, though it did not increase the risk of an accident occurring, did increase the risk
of serious injury if an accident should befall him, the special risk of injury is a relevant
consideration in determining the precautions which the employer should take in the fulfilment of
the duty of care which he owes to the workman.

3. The importance or social value of the activity engaged in or the end to be achieved In deciding
whether the defendant is in breach, the courts consider the social value or importance of the
conduct, enterprise or activity engaged in. Where the object to be achieved is of national
importance or societal benefit, the courts are minded to lower the standard of care.

In Daborn vs Bath Tramway:

D was driving an ambulance with a left- hand drive and with one driving mirror on the left hand
side attached to the windscreen. The ambulance was completely shut in at the back so that D was
unable to see anything close behind her. On the back of the ambulance, a large warning notice
was painted: "Caution - Left hand drive - No signals." D, unaware of the fact that there was a
motor car behind her, made all the necessary signs and turned to the right in the process of which
an omnibus collided with her ambulance and injured her.

She sued the driver and the employers of the omnibus in negligence and the question was
whether she was negligent herself. It was held that, upon the facts, the omnibus driver was
negligent.

There was no negligence on D's part because she had given the correct hand signals before
starting to turn. Per Asquith L.J:
"In determining whether a party is negligent, the standard of reasonable care is that which is
reasonably to be demanded in the circumstances. A relevant circumstance to take into account
may be the importance of the end to be served by behaving in this way or in that. As has often
been pointed out, if all the trains in this country were restricted to a speed of 5 miles an hour,
there would be fewer accidents, but our national life would be intolerably slowed down.

The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk.

In considering whether reasonable care has been observed, one must balance the risk against the
consequences of not assuming that risk." He then concluded that, on such a balance, the plaintiff
had not been negligent.

Watt vs Hertfordshire C C:

a fireman was injured by lifting-gear (jack), while travelling in a lorry not specially fitted for
carrying the gear to an emergency where a woman was trapped under a heavy vehicle. It was
held that, though the fire authorities were under a duty to provide proper appliances and to take
reasonable care to avoid exposing their firemen to unnecessary risks, they were not negligent in
requiring the firemen to take abnormal risks which they were ready to take in order to save life
and limb. Per Denning L.J.:12

"It is well settled that in measuring due care, you must balance the risk against the measures
necessary to eliminate the risk. To that proposition there ought to be added this: you must
balance the risk against the end to be achieved."

In these cases, the law's attitude clearly is that necessity may justify the taking of greater risk,
that is a lower standard of care. As Lord Justice Asquith puts it in Daborn vs Bath Tramway,
one must balance the risk against the consequences of not taking it.

4. Expenses involved in safety measures as against the risk

Here a varying standard obtains. In the case of very great risk which no precautions can
substantially reduce, the duty of care may be discharged only by ceasing the dangerous
operations altogether. But where the risk is slight, slight precautions will suffice. The point is
discussed in the case of:
Latimer vs AEC Ltd:

During an unusually heavy rainstorm, the floors of a large factory were flooded and an oily
cooling mixture, normally contained in a channel in the floor, along which it was pumped to
machinery rose and mixed with the flood waters, so that, when they subsided, the floor became
slippery.

So far as supplies permitted, sawdust was spread on the floor, but some areas were left untreated
because the company run out of saw dust. A workman, working in a gangway which had not
been treated with sawdust, was attempting to load a heavy barrel on to a trolley when he slipped
and injured his ankle. He brought an action against his employers, claiming damages in respect
of his injuries. It was held:

1.that the employers were not negligent, as they had done all a reasonable employer could be
expected to do for the safety of their servants, having regard to the degree of risk. and

2. there was no breach of statutory duty since the floor was structurally sound and could not be
said not to be properly maintained because it was in a transient and exceptional condition of
being wet and oily; whether such temporary inefficiency constituted a breach of a duty was a
question of degree. So the workman's action failed.

5. Compliance with general and approved practice Since the standard of care is determined by
reference to community valuations,

considerable evidentiary weight is attached to whether the defendant's conduct conformed to

standard practices accepted as normal and general by other members of the community in similar
circumstances.

The defendant, thus, may be able to escape liability by showing that his conduct in the
circumstances accorded with accepted community practice, that is that he had followed the usual
and approved practice. However, he must show that the approved practice itself is reasonable, for
it has been said: "Neglect of duty does not cease by repetition to be neglect of duty," per Lord
Tomlin in Bank of Montreal vs Dominion Guarantee Co. The common practice itself may be
condemned as negligent, if unreasonable.

The determination of the reasonableness or otherwise of the conduct is made based on

circumstances prevailing at the time it was engaged in. Thus in Roe vs Minister of Health, Lord
Denning said: "We must not look at the 1947 accident with 1954 spectacles. We must not
condemn as negligence that which is only misadventure.

The courts also make allowances for the existence of differing views within professions. The
courts will not choose between them. They will simply determine whether the defendant's
conduct conforms to the demands of a school of thought within the profession.

In engaging in this balancing exercise, the courts, as has already been indicated, use the yardstick
of the reasonable man.

Who IS THE "REASONABLE MAN"?

The standards which the law requires a person to attain must be objectively established. A person
will be regarded as negligent, if he fails to act according to that standard, even if it is more
difficult for him, as an individual, to do so than to others. The reason is that we are all entitled to
expect a certain level of protection from the acts of others. So the concept of the reasonable man
does two things:

1. it judges whether the defendant was careless; but

2. it also defines the level of safety a plaintiff is entitled to expect.

We may recall the objectivity of the test for determining breach of duty or the irrelevance of the
idiosyncracies of individual defendants. The reasonable man is at the heart of this objective test.
He is said to be the model of the standard to which all persons are required to conform. He is the
embodiment of all the qualities which we demand of the good citizen (a better person than
probably any single one of us!). This means that individuals are often held guilty of legal fault
for failing to live up to a standard which, as a matter of fact, they cannot meet.

The reasonable man's standard, then, is, in a sense, a certain average of conduct which sacrifices
the peculiarities, generally, of the individual defendant.

Thus, Lord Macmillan, in:

Glasgow Corporation vs Muir:

said that the standard of the reasonable man eliminates the personal equation and is independent
of the idiosyncracies of the particular person whose conduct is in question. The reasonable man
has been described variously in the books and learned journals. A sample follows. "He is the
man on the Madina commercial bus

Or the man who comes home in the evening. hugs his children, listens attentively to their school
stories etc. He is the man who represents the greatness of mankind. But we must remember he is
just a variable." In some sense also, we might say the reasonable man is a slippery fellow, not
easy to identify. Not surprising, the nature of the reasonable man has engaged the text-writers
over the years.

A.P. Herbert in his book, "The Uncommon Law" says of him: "Devoid, in short of any human
weakness, with not a single saving vice, prejudice, procrastination, ill-nature, avarice, and
absence of mind, as careful for his own safety as he is for that of others, this excellent but odious
creature stands like a monument in our courts of justice, vainly appealing to his fellow citizens to
order their lives after his own example."

The reasonable man is therefore not equal to the average man. Or, as is often also said, the
reasonable man adapts himself to the changing world, the unreasonable man tries to change the
world to suit himself.
Thus the question whether a person's conduct falls short of what is expected of him is determined
according to the reasonable man who is a reflection, as an abstraction of law, of the objective
community ideal. The individual's moral notions and qualities, like courage, self-control and
will-power, are irrelevant, whether higher or lower.

Why the objective test, we may ask? Holmes offers the following explanation for this objective
test in his book" The Common Man":

the law does not attempt to see men as God sees them, for more than one sufficient reason If, for
instance, a man is born hasty and awkward, is always having accidents and hurting himself or his
neighbours, no doubt his congenital defects will be allowed for in the courts of Heaven, but his
slips are no less troublesome to his neighbours than if they sprang from some guilty neglect.

And as Lord Macmillan said in:

Glasgow Corporation vs Muir:

"Some persons are by nature unduly timorous and imagine every path beset with lions; others, of
more robust temperament, fail to foresee or nonchalantly disregard even the most obvious
dangers. The reasonable man is presumed to be free from hension and from over-confidence."

Though objective, the reasonable man's test allows for certain exceptions to the extent to which
the personal equations of the defendant are irrelevant in deciding whether his conduct in the
circumstances is negligent or not.

In McHale vs Watson:

the High Court of Australia held that the standard to be applied to a child is the standard for a
child of corresponding age. But the standard remained objective. So that the fact that the
particular child is slow, absent-minded etc., is irrelevant.

Yachuck vs Oliver Blais:

where the court said that in the case of a child, the standard to be used is that of "a normal boy of
his age and intelligence." The infant appellant, nine years of age (accompanied by his younger
brother, seven years of age) made false representations to an employee at the respondent's
gasoline station and had five cents gasoline sold to him. They were going to use it for an Indian
war dance they had seen on television. While in the process, he got badly burnt and sued the
respondents for damages for negligence.

It was held that the injuries suffered by the infant appellant must be attributed solely to the
negligence of the respondent's employee and that, on the facts, contributory negligence would
not be imputed to the infant appellant.

The negligence of the respondent's employee consisted in putting into the hands of the small boy
who, on the evidence, was no more capable of taking care of himself in the circumstances in
which he was placed than a normal boy of his age might be expected to be, and who had no
knowledge of the peculiarly dangerous explosive quality of gasoline, a dangerous substance with
which a reasonable man, taking thought, would have foreseen that the child was likely to do
himself an injury.

To put a highly inflammable substance into the hands of a small boy was to subject him to
temptation and the risk of injury, and that was no less true if the boy had resorted to deceit to
overcome the supplier's scruples.

But if a child engages in adult games, then he or she has to measure up to the skills of a
reasonable adult engaging in those activities, Ryan vs Hickson," that is the standard of care of an
adult. Persons who acquire certain skills must reasonably attain the standard required of that skill
or profession. It is no defence then to argue that one acted to the best of his ability, if that falls
below the standard required by that skill.

In Roe vs Minister of Health:

the anaesthetist was held not liable because he had shown normal competence. Doctors must
conform to the level of skill of a reasonable doctor not that of the man on the Madina
commercial bus.
Wells vs Cooper:

degree of care - of reasonably competent carpenter.

Condon vs Blasi:

higher degree of care expected of footballer from a higher league.

By way of summary then, we must remember that the standard of the reasonable man is a rough
approximation of prevailing social morality.

This enables us to see that, with exceptions, liability in negligence does not turn upon proof of a
culpable state of mind in the individual tortfeasor an act which is intended by the doer to be
beneficial, or which is believed by him to be harmless is nevertheless negligent where a
reasonable man would have recognised the dangers and abstained from the act or acted
differently.

Thus the steady habit of men, engaged in a given activity, to behave in a particular way will not
exonerate them from a charge of negligence if the court is of the opinion that they ought not to
have done so because the practice was potentially harmful. The reasonable man's qualities are
partly derived from common experience and practice, and partly from the idealisation of the
norms of social behaviour,

What, in summary then is the role or contribution of the reasonable man's test to the action in
negligence? Three contributions mainly:

1. By preferring an objective standard of judging behaviour, the law avoids the invidious task of
having to scrutinize each specific defendant's subjective capacity - the law is content to judge
merely the external manifestations of the defendant's conduct by asking whether it measures up
to the norm set by the reasonable man-plugging a major escape route.

2. The reasonable man's test furnishes a means for keeping the standard of care sufficiently
flexible to be applied to different factual situations, climates, ages, cultures etc.
3. The reasonable man's formula enables a large dose of "grass-root" sentiment to be injected
into the daily administration of the law by linking the legal standard of care to accepted
community standards and evaluations and to common sense. This allows the rules of conduct to
remain adjustable to changing social patterns.

EVIDENCE AND PROCEDURE IN NEGLIGENCE:

Res Ipsa Loquitur

In an ordinary negligence suit, the burden of proving negligence lies on the plaintiff or he who
alleges. But, in certain cases, it is thought unfair to ask the plaintiff to provide this proof because
somebody else (that is the defendant) is in a better position to explain what happened.

Those situations where fairness requires that the defendant, rather than the plaintiff, should be
called upon to explain what happened are described as "Res Ipsa Loquitur - the thing speaks for
itself (literally).

That is to say, in some circumstances, the mere fact that an accident occurs raises an inference of
negligence against the defendant. Then we say the occurrence tells its own story.

Example a barrel of flour that falls out of a warehouse on top of a passer-by in the street is more
consistent with negligence on the part of the warehouseman than any other explanation.

This common sense view of things has become complicated because of the use of a Latin phrase
to express it: Res ipsa loquitur.

The incident which calls the maxim into play must be such as raises three triggers:

1. That the accident was caused by the breach by somebody of a duty of care to plaintiff. That is
from our experience the incident would not nonnally occur unless there was a breach by
someone

2. That the defendant was that somebody

3. No explanation must be forthcoming from the defendant.

These factors were laid down in:

Scott vs London & Saint Katherine Docks Company:

the plaintiff, a customs officer while near the door of the defendant's warehouse was injured by
some sugar bags falling on him. The judge directed the jury to find a verdict for the defendant on
the grounds of lack of evidence of negligence by the plaintiff, who called no evidence.

On appeal, it was held, without reference to the maxim, that the plaintiff must succeed where:

1. the thing causing damage is shown to be under the management of the defendant or his
servants;

2. the accident is such as in the ordinary course of things does not happen if those who have the
management of the thing use proper care; and

3. where there is absence of explanation by the defendant.

This has since been known as the res ipsa loquitur rule or principle. It is not a principle of
substantive law but a rule of evidence, an expression which is convenient to apply to those
circumstances in which a plaintiff in negligence discharges his task of establishing want of care
on the part of the defendant without having to prove any specific negligent act or omission.

In such cases where the three conditions in Scott vs London and St. Katherine Docks Co. exist,
then there is a prima facie case of breach.

The first requirement is that the harm must be of such a kind as does not ordinarily happen if
proper care is taken.

The courts have applied the maxim to things falling from the sky as in Scott vs London & St.
Katherine Docks Company Limited or accidents resulting from defective machines as in
Mbadiwe vs Yaya or accidents from apparatus or vehicles
Sochaki vs Sas:

In the last case an ordinary domestic fire was left unattended and furniture in the room caught
fire. It was held that res ipsa loquitur did not apply because everybody knows that fires occur
through accidents which happen without negligence on anybody's part.

The second condition for the application of the rule is that the instrumentality causing the
accident must be within the exclusive control of the defendant. Control does not mean actual
control only but also the right and opportunity to control.

Thus, where Albert gives his car to Ben, and Ben parks it outside unattended and it moves to
damage the house of Cate, then Cate can rely on res ipsa loquitur in a suit in negligence against
Albert :

In Ude vs Bonjur:

the defendant had left his house to his girlfriend and others and traveled. Those in charge left a
tap on and water overflowed and ran into and damaged the goods of the plaintiff whose shop was
downstairs.

HELD:

The courts held that the plaintiff had no means of explaining how the accident occurred but the
defendant had.

The onus of proof was on the defendant, there being evidence that the accident had been caused
by negligence on the part of someone left behind in occupation for which he was responsible.

Thus, where the plaintiff cannot point to the one or any of the servants of the defendant who is in
control, the rule will be invoked so as to make the defendant vicariously liable.

The maxim is dependent on the absence of explanation from the defendant. The law says that if
there is proof of the relevant facts before the court then there will be no need for invoking the
doctrine.
This means we cannot invoke the maxim where the facts are sufficiently known. The point is
made in

Barkway vs SW Transport Company Ltd:

In that case, the plaintiff was injured when the defendants' bus veered across the road and fell
over an embankment. The defendants called evidence to establish that the accident was the result
of speed and defective tyres.

The court held that, as the cause of the accident was known, res ipsa loquitur had no application,
but found the defendants were liable as negligence was established on the facts.

The explanation however must be "exact." This means that, where there is an explanation, for the
defendant to escape liability, he must, from the explanation, show he was not in breach of his
duty of care. This may be illustrated by the decision in;

Mbadiwe vs Yaya:

the plaintiff had parked his car to the left of the road. The defendant's (driver) lorry ran into the
rear of it. The driver gave evidence that the other lorry was badly parked and that he would have
hit the gate of the bridge, if he had not hit the other car.

A mechanic gave evidence that the accident was due to brake failure, as a result of a loose nut. It
was held that the accident raised a presumption of negligence and the onus was on the defendant
to disprove negligence, but he failed to discharge this.

His admission that, if he did not hit the truck, he would have hit the bridge was evidence that
there was room enough to pass by the car but he preferred to hit it. The explanation of brake
failure was unreasonable.

This ruling was applied in the case of Adjei vs Yeboah."

Should the plaintiff specifically plead res ipsa loquitur? The answer to the question depends on
the view you take about the nature of the maxim.

In Nelson vs Klutse:

the applicant, a police corporal, lived in Tema and commuted to Accra. While travelling in a
Mercedes Benz bus to Accra on this occasion, the bus, running on its right side, was hit by a
truck driven by the defendant, Kofi Klutse. Many persons (eighteen), including the applicant
were injured, while one person died.

The applicant claimed damages for injuries sustained and judgment was given in her favour. This
decision was reversed by a majority judgment of the Supreme Court.

The applicant's claim at the High Court was negligence and the Supreme Court held that she
should have established the particulars of negligence, and, having failed to do so, she could not
rely on res ipsa loquitur.

The applicant applied for a review against the majority decision. And the review court held,
reversing the ordinary panel, that, to rely on the maxim, it was not always necessary that it
should be specifically pleaded, but the facts, from which it is intended that the presumption
should be drawn, must be pleaded.

This case is important for the circumstances in which the maxim is invoked. The case decided
that failure to plead the maxim is not fatal to a claim.

So long as the pleadings show clearly that the doctrine of res ipsa loquitur is to be invoked then
that is sufficient. That is to say "Fair notice is the case which has to be met so that the opposing
party may direct his evidence to the issue disclosed by them." (Lord Norman).

Thus the pleadings must give "fair notice" to the defendant that the maxim is to be invoked and
where counsel is in doubt as to whether his pleadings disclose the invocation of the doctrine then
he is wise to plead it specifically.

As Dr. Fiadjoe pointed out," if this is not done as in the decision in Nelson vs Klutse the
distinction between res ipsa loquitur and straight negligence is blurred.

According to Dr. Fiadjoe, in Nelson vs Klutse, the pleadings of the plaintiff did not give "fair
notice" to the defendants. The full bench of the Court therefore erred in holding otherwise.
But Obeng Manu does not agree with Dr. Fiadjoe. For him, this case shows the proper nature and
role of the maxim, namely a label which describes the situations where the facts on the ground
justify an inference of negligence by the defendants. Viewed from this perspective, it did not
matter whether the plaintiff specifically, pleaded reliance on the maxim.

The review decision has been applied in subsequent cases. An example is the case of;

Asante Kramo vs Attorney-General;

Here the plaintiff was a nineteen year old housewife. She was referred to the Okomfo Anokye
Hospital with a ruptured ectopic pregnancy. She was operated upon. In the course of the
operations, her right arm became swollen and gangrenous, following blood transfusion
administered to her by the nursing staff through a vein in the right arm.

The arm was later amputated to save her life. She brought the present action against the State for
damages for negligence on the part of the hospital staff. She gave particulars of negligence in her
claim and also pleaded reliance on res ipsa loquitur. She failed to prove the particulars but the
trial judge found that the proven facts raised a presumption of negligence.

Since there was no explanation from the defendant, judgment was given in her favour. The trial
judge said, among others, that, in actions founded on res ipsa loquitur, it was unnecessary to
plead res ipsa loquitur. What the plaintiff must plead are facts which, when taken together, lead
to an inference of negligence.

What is the effect legally of the invocation of the maxim? The view is held that the maxim does
not state a principle of substantive law. Lord Shaw observed that: if that phrase res ipsa loquitur
had not been in Latin nobody could have called it a principle. It is a rule of evidence. Its effect,
however, has been the progeny of the dichotomy between English and Australian authorities.

The English view is that a decision that res ipsa loquitur applies entitles the plaintiff to judgment,
unless the defendant can exonerate himself by either:

1. giving a true explanation of how the accident actually occurred without Négligence on his
part, or by
2. proving that, in all the circumstances, he has exercised due diligence. Thus, the English view
shifts the legal burden of proof on the defendant; so that where there are alternative explanations,
he must show that, either the accident was due to a specific cause which absolves him of
negligence, or, that he had used all reasonable care in the matter.

The English view was applied in

Decker vs Atta:

In that case, a lorry driven by the appellant overturned and seriously injured the respondent who
was carried as a fare passenger.

At the trial, the respondent relied on res ipsa loquitur. The appellants argued that the truck was
roadworthy and that the accident was due to a sudden breaking of the shaft and the corrugated
nature of the road. It was held that the facts raised a prima facie case of negligence, and, in
rebutting this, there was a burden on the appellant to show that the vehicle was in a good and
roadworthy condition at the time of the accident.

Apaloo and Sowah thought that the nature of the roads put a greater obligation on the appellant
to show by evidence the steps he had taken to make the vehicle withstand the road; and that he
should not have taken the journey at all knowing the road was in that state of disrepair.

The Australian view is that, where the maxim applies, the onus on the defendant would be to
produce or offer a reasonable explanation equally consistent with negligence or no negligence.
As long as he gives an explanation which is reasonable, the burden of proving negligence and
that the defendant's negligence caused the accident, still rests on the plaintiff. Here the burden of
proof on the defendant is evidential only. The legal burden remains on the plaintiff throughout
the trial.

The Australian approach is more persuasive, given the principle that proof of liability in
negligence is on the plaintiff. On the English view, the whole onus is shifted onto the defendant
and, therefore, if he cannot absolutely prove innocence, then he is liable. The liability, where res
ipsa loquitor applies is brought close to strict liability in the English view.
In Ghana, the English view that the legal burden of proof is on the defendant, is accepted. The
case of Decker vs Atta" tried to grapple with the two views.

In Dumgya vs SCC:

In this case also, the English view was generally accepted. In this case, the walls of the Kumasi
Sports Stadium collapsed during a football match and one Kofi Asabere was killed. Evidence
showed that the wall collapsed because only one pillar supported it. The defendants denied
negligence and pleaded that they had taken all reasonable care. The plaintiffs relied on res ipsa
loquitur.

The trial judge held that res ipsa loquitur did not apply, as the cause of death was known. On
appeal, it was held that the evidence showed a prima facie case of negligence which the
defendants failed to rebut; and since the accident occurred from want of care, reliance could be
placed on res ipsa loquitur in the absence of further evidence.

The appellate court noted that the walls of a Sports Stadium do not normally collapse, if those in
control used proper care. Res ipsa loquitur thus applied.

CHAPTER 20

RESULTANT DAMAGE CAUSATION AND REMOTENESS OF DAMAGE

A claim in tort based on negligence is incomplete without proof of damage. Damage, in this
sense, is an abstract of being worse off, physically or economically, that compensation is an
appropriate remedy.

It does not mean simply a physical change which is consistent with making one better, as in the
case of a successful operation, or with being neutral; having no perceptible effect upon one's
health or capability. How much worse off must one be? An action for compensation should not
be set in motion on account of a trivial injury.

De Minimis Non Curat Lex

This third requirement for a negligence action is commonly expressed by saying that the plaintiff
must have suffered damage as a result of the defendant's breach. This deceptively simple
statement raises many complex questions which can be put into three main heads:

CAUSATION

1. There is the question whether indeed the plaintiff's damage was "the result" of the defendant's
negligence, that is whether the defendant in fact caused the damage. This is referred to as "cause
in fact." Usually answered by the "substantial factor" test in the, known as the "But for" Test.

Thus, in determining resultant damage, the first screening of all claims in negligence involves
establishing whether the defendant's tortious conduct was at all a causal factor in what the
plaintiff has suffered as indicated above, the most widely used test is the but for test (that is
would that injury not have happened but for the defendant's conduct?).

If the injury would have happened in spite of his conduct, then, from the causal point of view,
the defendant's conduct is irrelevant, e.g. failure to provide adequate life-boats in a ship as in the
case of the famous Titanic boat - if the ship listed so badly that no boats could have been lowered
in any event then, if the passengers die, their death could not have been caused by the failure.

The but for test is generally foolproof except when another cause is present which by itself could
have caused the accident, example when two fires merge. It introduces a certain amount of
speculation into the equation. For how can we say with assurance that:

1. the pregnant woman would not have given birth to a deformed child but for the injury she
received in a collision. (Bourhill vs Young); or

2. a motorist who exceeds the speed limit of 30 kph and drives at 35 kph and is unable to prevent
himself from hitting a small boy who darts across his path, would not have done so but for the
extra speed. (King vs Philips)."

Multiple causes particularly bring out the limitations of the but for test. Take the following
example from Atiyah's Accidents. Albert & Ben negligently set fire separately which unite to
destroy Cate's house." Clearly the but for test would be difficult to apply here.
 To establish the relevant causal connection, the plaintiff has to show that, on a balance of
probabilities, the defendant's breach caused the loss which he suffered. It must be stressed,
however, that causation is to be understood as the man in the street, that is in a non-technical
sense.

REMOTENESS OF DAMAGE

2. The second set of questions relates to a number of issues which all concern the attempt to find
some restrictions on liability for negligence. Ghanaian law, like English law, generally discusses
these questions under the heading, Remoteness of Damage, though many of the issues are also
discussed under duty of care.

ASSESSMENT OF DAMAGES

3. The third type of problem concerns the assessment of damages, that is putting a money value
on the loss, damage or injury.

RESULTANT DAMAGE

There are two schools of thought as far as the question of damage which completes the
negligence trio (formula), is concerned, and for which the defendant must therefore be held
liable.

DIRECT CONSEQUENCES

The first school (or test), extends liability to all physiological consequences whether foreseeable
or not. This has exerted the strongest appeal in personal injury cases. According to this view,
once the defendant is proved to have been in breach of the duty of care, he is liable for all the
direct consequences of that breach. The one who has "set the whole thing in motion" has a lesser
claim to sympathy than his innocent victim; once his conduct is unreasonable, the relevance of
foreseeability as a test for liability is finished (exhausted).

This school holds that foreseeability is necessary only for the determination of the question of
liability, that is breach.

Foreseeability goes to culpability not compensation" per Lord Sumner in Well-Blundell vs

Stephens." Directness here includes all consequences flowing in an uninterrupted sequence, that
is, without the intervention of "new forces" - human or natural. Therefore, according to this
school, the fact that the defendant could not foresee a particular consequence of his act is
immaterial, if it was a direct consequence.

The case usually cited as the authority for this test (indeed its progenitor) is:

Re Polemis:

Messrs Polemis and Boyazides, the owners of the Greek Steamship Thrasyvoulos, chartered the
ship to Furness, Withy and Company who loaded in its hold, in tins, a quantity of petrol. During
the voyage, the tins leaked and, in consequence, there was a considerable quantity of petrol
vapour in the hold.

At Casablanca in Morocco, it became necessary for the stevedores, servants of the Furness, to
shift some of the cases. For this purpose, they placed a number of heavy planks at the end of the
hatchway for use as a platform. While a sling containing the cases was being hoisted, the rope
was negligently allowed to come into contact with these planks and to displace one of them,
which fell into the hold. The falling plank caused an ignition of the petrol vapour and there was
an outbreak of fire which completely destroyed the ship.

The ship owners (Polemis) claimed the value of the ship from the charterers, the Furness. The
charterers, in their defence, relied on a clause in the charter-party which exempted them from
liability for perils caused by "act of God, the King's enemies, loss or damage from fire on board.

The owners of the Polemis replied by saying that the clause was inoperative where the peril was
caused by the negligence either of the charterers or their servants. This issue was referred to
arbitration. Therefore, at first sight, it might seem that the claim had little or nothing to do with
the tort of negligence. The claim was upon a contract and the issue was whether the negligence
(in the sense of carelessness) of the defendants disentitled them from relying on the exemption
clause. But the charterers expressly pleaded that the damage was too remote and the case was
regarded as one of tort before the court of first instance, Sankey J (as he then was) and the Court
of Appeal.

The arbitrators found as a fact that the causing of the spark could not reasonably have been
anticipated from the falling of the plank, though some damage to the ship might reasonably have
been anticipated.

On this finding, the Court of Appeal unanimously held the charterers liable to the owners for the
loss. The court was of the view that the charterers were negligent in letting the plank fall into the
hold.

Being negligent, they were liable for all the direct consequences of that negligence, though, in
nature and magnitude, those consequences were such as no reasonable man would have
anticipated. This is referred to as the Polemis Rule.

FORESEEABLE CONSEQUENCES

The second school holds that foreseeability is the test for culpability as well as compensation.
According to this view, it is not sufficient that some injury to the plaintiff was foreseeable.

The "particular injury" for which a claim is made must satisfy the same test, standing on its own
footing; that is the injury itself must be reasonably foreseeable. This is referred to generally as
the Wagon Mound Rule.

The Rule arose out of the decision in the Wagon Mound Case."

In Re WAGON MOUND

The appellants were charterers of an oil-burning vessel which was taking in bunkering oil in
Sydney Harbour. Through the carelessness of their servants, a large quantity of the oil was
spilled into the harbour.

The oil was carried by wind and tide to the wharf owned by the respondents, shipbuilders and
ship repairers, who were at the time refilling a vessel in the wharf, a job for which they were
using electric and oxy-acetylene welding equipment.
Some cotton waste or rag on a piece of debris floating on the oil underneath the wharf was set on
fire by molten metal falling from the wharf, and the flanies from the cotton waste or rag set the
floating oil on fire, either directly or by first setting fire to a wooden pile coated with oil, and,
thereafter, a conflagration developed which seriously damaged the wharf and the equipment on
it.

The respondent brought an action to recover compensation for the damage. The trial judge found,
on the evidence, that the appellants did not know and could not reasonably be expected to have
known that the furnance oil was capable of being set afire when spread on water. In addition, he
found that, apart from damage by fire, the respondents had suffered some damage from the
spillage of the oil because it fouled their slipways. He considered this damage the "direct result
of the escape of the oil."

The Privy Council (per Viscount Simon) rejected the Re Polemis Rule as an aberration. They
held that foreseeability was the proper test both for culpability and compensation. The council
said: "

"It does not seem consonant with current ideas of justice or morality that for an act of
negligence, however slight or venial, which results in some trivial foreseeable damage the actor
should be liable for all consequences however unforeseeable and however grave, so long as they
can be said to be 'direct'.

It is a principle of civil liability, subject only to qualifications which have no present relevance,
that a man must be considered to be responsible for the probable consequences of his act. To
demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires
the observance of a minimum standard of behaviour"

Privy Council Decision

The Wagon Mound case thus re-established reasonable foreseeability as the test for remoteness
of damage in negligence cases. The Privy Council expressly here overruled Re Polemis,
declaring it as bad law.
As already mentioned, in personal injury cases, the courts seem to favour the Polemis rule, or, at
any rate, one can say that decisions in this area are closer to Polemis.

For example, in

Smith vs Leech Brain & Co. Ltd.

the court held that the decision in Wagon Mound was not intended to vary the rule, long
established in personal injury cases, that a tortfeasor takes his victim as he finds him, that is
talem qualem. This case was a widow's claim under the Law Reform Act, 1934 and the Fatal
Accidents Acts, 1846-1908 for damages arising out of an accident to her husband in the course
of his employment by the first defendants.

The deceased was employed as a labourer and galvanizer. About ten years before the action, he
had a burn on his lips as a result of contact with molten metal. The burn was treated at that time,
but, later, it resulted in cancer which appeared to have been because he might have had a pre-
malignant condition resulting from contact with tar. The deceased had worked for nine years in
gasworks. He died from the cancer.

The defendants were held negligent in not providing him with adequate protection. The major
question then was whether the cancer which the plaintiff's husband had admittedly got, and the
death resulting from it, were caused in whole or in part by the burn. On this, the court found that
the burn was the promoting agency of cancer in tissues which already had a pre-malignant
condition. On the question of damages, Lord Goddard said:

"For my part, I am quite satisfied that the Judicial Committee in the Wagon Mound case did not
have what I may call, loosely, the thin skull cases in mind. It has always been the law of this
country that a tortfeasor takes his victim as he finds him. It is unnecessary to do more than refer
to the short passage in the decision of Kennedy J.

In Dulieu vs White where he said: 'If a man is negligently run over or otherwise negligently
injured in his body, it is no answer to the sufferer's claim for damages that he would have
suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually
weak heart. And he continued:

'The test is not whether these employers could reasonably have foreseen that a burn would cause
cancer and that he would die. The question is whether these employers could reasonably have
foreseen the type of injury he suffered, namely, the burn. What, in the particular case, is the
amount of damage which he suffers as a result of

that burn depends upon the characteristics and constitution of the victim." This decision quite
clearly follows the Polemis tradition, although Lord Parker, in his judgment, expressed his
preference for the Wagon Mound rule.

The same could perhaps be said of the House of Lords' decision in:

Hughes vs Lord Advocate:

where in disagreeing with lower courts, the House dispelled all apprehensions that the
foreseeability test was to be deployed with pro-defendant bias in a very narrow fashion. The
House of Lords held that a freak explosion of an overturned paraffin lamp, as distinct from the
ordinary danger it represented of causing a fire by spilling, was still substantially the same type
of accident, defined as damage by burns. It was true the injury was a good deal greater in extent
than was foreseeable, and the known source of danger, the lamp, behaved in a totally
unpredictable manner, but that could be dismissed as immaterial.

The test of remoteness under Polemis in the case of economic or non physical damage is more
restrictive.

Note that the difference in the decision between Wagon Mound Nos. 1 and 2 is the fact of
different findings of fact. So it is not correct that No. 1 is overruled by No. 2 as suggested by
Dias & Markennis.
Note further that there is no difference in the result in personal injury cases, whether one goes by
Polemis or Wagon Mound. But in property damage cases, Wagon Mound uses a narrower
approach,

Novus Actus Interveniens

No matter which school one accepts, however, the law is that, if there is an intervening act which
the wrongdoer could not have foreseen, then the defendant is not liable. The chain of causation is
said to have been broken. This is often expressed by saying that, where there is a novus actus
interveniens, then the defendant is not liable. The kind of issue at play here may be illustrated by
examining the following questions:

1. A traffic victim is left prostrate on the road and is then stripped by pickpockets is the negligent
motorist liable? No -

2. A contractor leaves an unguarded hole in the pavement into which plaintiff is deliberately
pushed by a personal enemy? No liability. Adu vs Gliksten.

(3.) Facts are similar to 2 above, except that here the plaintiff stumbles into the hole in the dark
or perhaps is carelessly jostled by a passer-by in a hurry? Liability.

The principle is illustrated by:

Brandon vs Osborne’

This is an action by the plaintiffs (husband and wife) for damages for injuries sustained by them
while in a shop occupied by the first defendants. The plaintiffs were shopping at the time of the
injury. The second defendants were repairing the roof of the shop. As a result of the negligence
of the second defendants, a portion of the skylight, forming part of the roof, fell and a piece of
glass struck the male plaintiff. Although it did not cut him, it caused him a severe shock. At the
time he was hit by the glass, his wife was standing quite close to him.
She was not struck or touched by the falling glass, but, on seeing it fall, she immediately and
instinctively put out her hand and clutched her husband's arm and tried to pull him away from the
spot. She strained her leg in that effort in a way which brought about the recurrence of
thrombosis from which she had at one time suffered but from which she had been free for some
years. The defendants argued that the female plaintiff was not entitled to recover because her
injury was caused by her intervening to pull her husband out of the danger she thought was
threatening him.

Swift J. held that, notwithstanding her intervention, she was entitled to recover. (He applied
Jones vs Boyce. He explained his decision as follows:

"In such circumstances as these, it would be for the jury to say whether, where the primary cause
of the injury was the negligence of the defendants in breaking the glass roof so that portions of it
fell on the male plaintiff and close to her, the injury to her leg was caused by an improper act of
hers which contributed to the mischief. If she did something which a reasonable person in the
circumstances ought not to have done she would not be entitled to damages, but if what she did
was done instinctively and was in the circumstances a natural and proper thing to do, I think she
is entitled to recover."

And he continued:

"It seems to me that where a person sustains injury through a combination of acts, some done by
the defendants and some by himself, it is for the jury to say, having regard to the whole of the
circumstances, whether,

1. the injury is the natural and probable consequence of the defendants' act, and

2.whether the plaintiff has been guilty of contributory negligence. If in this case the female
plaintiff had been standing in a place of perfect safety, and saw, as she says she did, the 'glass
raining down upon her husband' and had time to think what was the wisest thing to do, it might
possibly be said that she was guilty of negligence by going into the danger, but, having regard to
the place she was in and the frightening nature of the accident..., I think that, acting instinctively
as she did in clutching her husband's arm and trying to drag him out of danger, she did nothing
wrong or anything that can be called contributory negligence."

In Haynes vs Harwood,

It was said that, novus actus interveniens is no defence, that is does not arise, if the intervention
is the very kind of thing which is likely to happen, if the want of care which is alleged takes
place such as rescue.

ELECTIONS

Often the question arises whether a plaintiff, who, when put in alternative danger by the act of a
defendant, takes the danger he considers the lesser one, has broken the chain of causation.

For example, A, in a trotro, finds the truck swerving dangerously from side to side. Believing an
accident imminent, A jumps out of the truck and breaks his leg. Does his jumping out break the
chain of causation?

The courts generally take a liberal attitude of this kind of situation. They would say that, where a
person is put in alternative danger and he elects what to him is the less perilous, the defendant is
liable if he is injured.

This was established in:

Jones vs Boyce:

The plaintiff brought this action against a coach proprietor for so negligently conducting the
coach that plaintiff was obliged to jump off the coach in consequence of which his leg was
broken. Evidence was adduced to show that the coupling reign was defective; it broke and to
stop the coach the driver drove to the side of the road where it was eventually stopped by a post.
Lord Ellenborough directed the jury thus:
1. Was the proprietor of the coach liable for failing to provide safe and proper means of
conveyance?

2. Was that default the cause of the injury to the plaintiff?

"for if it was not so far conducive as to create such a reasonable degree of alarm, and
apprehension in the mind of the plaintiff, as rendered it necessary for him to jump down from the
coach in order to avoid immediate danger, the action is not maintainable. To enable the plaintiff
to sustain the action, it is not necessary that he should have been thrown off the coach, it is
sufficient if he was placed by the misconduct of the defendant in such a situation as obliged him
to adopt the alternative of a dangerous leap, or to remain at certain peril; if that position was
occasioned by the default of the defendant, the action may be supported.

On the other hand, if the plaintiff's act resulted from a rash apprehension of danger, which did
not exist, and the injury which he sustained is to be attributed to rashness and imprudence, he is
not entitled to recover. The question is, whether he was placed in such a situation as to render
what he did a prudent precaution, for the purpose of self preservation.

If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for
the consequences."

The complexity of the issues involved here is further brought out by the decisions in the
following cases:

In Ekwo vs Enechukwu:

the plaintiff was a passenger on the defendant's lorry from Port Harcourt to Onitsha. During the
course of the journey, the seat upon which he was sitting, due to negligent fixing by the
defendant or his servants, came out of its position. The plaintiff fell with his right hand under the
seat and broke his hand badly.

Inmediately after the accident, the defendant's driver offered to take the plaintiff to the hospital at
Aba. The driver of the second defendant's lorry also offered to take him to the hospital in Port
Harcourt.
The plaintiff refused to go to either hospital for fear that his hand might be amputated, and
elected to be taken to a native doctor at Asa. Some days later, he was taken to hospital suffering
from a septic wound of his hand, which was festering and gangrenous and his arm was
amputated.

The doctor who attended the plaintiff in hospital gave evidence that the treatment and amputation
were the result of the septic wound; he expressed the view that, if the plaintiff had come into the
hospital immediately, her arm might have been saved from amputation.

The learned trial judge held that the plaintiff was contributorily negligent in refusing to go to
hospital and going instead to a native doctor and this caused the amputation, that the amputation
was too remote a consequence of defendant's negligence; that the plaintiff's behaviour was
unreasonable and therefore the defendants could not be held liable for the further damage caused
by his own act. He, therefore, awarded damages only on the footing of a fracture of the bones of
the right hand. The plaintiff appealed against that decision.

On appeal, two issues were considered:

1. Did plaintiff act unreasonably in choosing the course he did?

2. Can it be said with reasonable certainty that an independent cause intervened between the
defendants' negligence and the necessity for the amputation?

The West African Court of Appeal was of the view that in the determination of the first issue, it
must be remembered that the accident occurred in Nigeria where it is common knowledge that a
considerable proportion of the population still hold a strong belief in their native doctors.

The relevance of the belief lay in the fact of its existence and not whether the belief is
reasonable. The court therefore concluded that, in choosing as he did, the plaintiff had not acted
unreasonably.

On the second issue, the West African Court of Appeal understood the doctor's evidence as only
suggesting that, the plaintiff might have been saved, if he had come straight to hospital and
refused to interprete it to mean there was no physical connection between the negligence and the
amputation. They allowed the appeal and increased the damages accordingly.
In Yeboah vs Yamak:

the plaintiff and her daughter were passengers in a lorry driven by the third defendant and owned
by the first and second defendants. The lorry collided with another and they sustained injuries.
The driver of the defendants was held liable in negligence for the collision. The remaining
question therefore concerned only damages. The defendants contested the expenses in
connection with a visit to the native doctor, contending that it was unnecessary.

Djabanor J did not agree with the defendants. Having regard to the background of the plaintiffs,
especially their way of life and the superstitions and prejudices of the community from which
they came, a visit in these circumstances to the native doctor was not unnecessary or
unreasonable. He said: "native doctors perform wonders in bone healing."

In establishing causation in negligence, especially where there are multiple causes, it is enough
for the plaintiff to establish that a defendant's negligence increased the risk of his being harmed.
If the injury resulted and there was no proof of any alternative cause, then liability followed
despite lack of a conclusive causal link: see Fitzgerald vs Lane. Liability will also be imputed to
any negligent party whose breach of duty is proved to have created a risk that injury will be
caused to another.

CHAPTER 21

DEFENCES

1. CONTRIBUTORY NEGLIGENCE'

Contributory negligence is a conduct by the plaintiff showing an unreasonable disregard for the
safety of his own interest, which disregard together with the defendant's negligence causes harm
to that interest.

Until 1945 in England, and 1963 in Ghana, contributory negligence was a complete defence to
an action in negligence. This common law rule still operates in some jurisdictions because of the
operation of the maxim, in pari delicto, potior est conditio defendentis. This defence seems to
draw its force from the same moral well which led to the creation of negligent liability in the first
case that is the feeling that a plaintiff guilty of contributory negligence was himself "at fault" or
"to blame" for his injuries. The legal justification for this was, however, expressed in terms of
"cause" and led to such indefensible rules as "the last opportunity rule."

In Ghana, the law on contributory negligence is to be found in Part 1 of the Civil Liability Act,
1963 (Act 176).

Section 1(1) of Act 176 provides as follows:

"Where any person suffers damage as the result partly of the fault of any other person and partly
of his own fault or the fault of someone for whom he is responsible (in this part referred to as
contributory negligence), a claim in respect of that damage shall not be defeated by reason of the
fault of the person suffering damage, but the damages recoverable in respect thereof shall be
reduced to such extent as the court thinks just and equitable having regard to the plaintiff's share
in the responsibility for the damage:

Provided that--

1. if, having regard to all the circumstances of the case, it is not possible to establish different
degrees of fault, the liability shall be apportioned equally;

2. this section shall not operate to defeat any defence arising under a contract;

3. where any contract or enactment providing for the limitation of liability is applicable to the
claim, the amount of damages recoverable by the plaintiff by virtue of this section shall not
exceed the maximum limit so applicable.

Note that in this statutory definition as well as at common law, a plaintiff is said to contribute to
his injury or to be guilty of contributory negligence, where he fails to take reasonable care for his
own safety in relation to the conduct for which he seeks to blame the defendant.
In Jones vs Livox Quarries Limited:

the plaintiff who worked in the defendant's quarry rode on the towbar of a vehicle against the
express orders of his employers. Later, while the vehicle was almost at a standstill, another
vehicle, also of the defendants, negligently ran into him from the back as he stood on the towbar
and he was crushed between the two vehicles.

The trial judge held him guilty of contributory negligence, which he estimated at 20 per cent and
he appealed.

The appeal was dismissed; so also was a cross-appeal by the defendants Lord Denning
explained that: "

"Although contributory negligence does not depend on a duty of care, it does depend on
foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so
contributory negligence requires the foreseeability of harm to oneself. A person is guilty of
contributory negligence if he ought reasonably to have foreseen that, if he did not act as a
reasonable, prudent man, he might be hurt himself; and, in his reckonings, he must take into
account the possibility of others being careless.

The question in every case is: What faults were there which caused the damage? Was his fault
one of them?

If the plaintiff, whilst riding on the towbar, had been hit in the eye by a shot from a negligent
sportsman, I should have thought that the plaintiff's negligence would in no way be a cause of his
injury.

It all comes to this: if a man carelessly rides on a vehicle in a dangerous position, and
subsequently, there is a collision in which his injuries are made worse by reason of his position
than they would otherwise have been, then his damage is partly the result of his own fault, and
the damages recoverable by him fall to be reduced accordingly."

The Jones case thus stresses that, for the plaintiff's negligence to be operative, it must be in
respect of the risk to which the plaintiff's negligence exposed him, and not some other risk.
The plaintiff must have failed to take reasonable care.

In O'Connell vs Jackson:

the plaintiff, an experienced motorist, failed to wear a crash helmet in circumstances in which a
reasonably prudent moped rider would have worn one. He was involved in an accident as a result
of the negligence of the defendant. At the trial, the defendant admitted negligence, but argued
that the plaintiff had contributed to the damage by failing to wear the helmet. The learned trial
judge rejected this contention. On appeal, it was held that the appeal must succeed.

The Court of Appeal was of the view that it was unreasonable for the plaintiff to ride a moped
cycle at twenty miles per hour in a busy traffic area without a crash helmet, and, from the
medical evidence, we concluded that the plaintiff's injuries would have been minimised if he had
worn one.

The plaintiff's contributory negligence was assessed at 15 per cent.

Owens vs Brimmell:

The plaintiff and defendant were friends. The plaintiff had often been driven by the defendant in
the defendant's car. In the early evening of the day in question, they went out together, drank at a
number of public houses and finally a club. During the course of this drinking spree, each drank
between eight and nine pints of beer. At about 2 a.m. the following day, on their way back home,
the defendant who was driving the car, lost control of it, hit a lamp post and the plaintiff received
severe injuries. The plaintiff brought an action for damages. The defendant admitted liability but
alleged that the plaintiff was himself contributorily negligent

1. in not wearing a seat belt; and

2. in accepting a lift knowing or being reckless to the possibility that the defendant's ability to
drive was impaired by drink. Watkins J rejected the contributory negligence claim based on the
failure to wear the seat belt on the grounds that the defendant had failed to satisfy him, on a
balance of probabilities, that the injury would have been less severe if the plaintiff had worn the
seat belt. But he reduced the damages awarded to the plaintiff because he was satisfied that the
plaintiff was contributorily negligent in taking the ride in the circumstances. He used the
following proposition:"

"...a passenger may be guilty of contributory negligence if he rides with the driver of a car whom
he knows has consumed alcohol in such quantity as is likely to impair to a dangerous degree, that
driver's capacity to drive properly and safely. So, also, may a passenger be guilty of contributory
negligence if he, knowing that he is going to be driven in a car by his companion later,
accompanies him upon a bout of drinking, which has the effect, eventually, of robbing the
passenger of clear thought and perception and diminishes the driver's capacity to drive properly
and carefully. Whether this principle can be relied upon successfully is a question of fact and
degree to be determined in the circumstances out of which the issue is said to arise."

After providing that contributory negligence will no longer be a complete or absolute defence to
an action in negligence, sections 2 and 3 of Act 176 oblige the court before which the issue of
negligence is tried to determine the relative contributions of the plaintiff and the defendant and to
reduce the damages to be awarded to the plaintiff in proportion to his or her contribution.

Volenti Non Fit Injuria

This defence is sometimes also referred to as voluntary assumption of risk Pollock observed in
his book, Torts' that the whole law of negligence presupposes the absence of consent on the part
of the plaintiff.

The common law does not cuddle its children. Therefore, as a rule, willing self-exposure to
injury or loss, or its risk, releases others from the duty of care which would normally devolve
upon them, provided the willingness is genuine.

This is what is described in negligence as the defence of volenti non fit injuria, or consent. In
determining whether there is before the court evidence which will vitiate any such claim of
consent, account is taken of factors such as fear, poverty, dependence, altruism and modesty.
As Atiyah notes" if we can forget all legal classification for a moment, it would seem that there
are three possible reasons why the plaintiff's own conduct should deprive him of a right of action
against a negligent defendant;

(1) the plaintiff may have agreed that the defendant was not to be liable.

Example of situation (1):

(a.) Albert allows Ben onto his land, without that, Ben trespasses to land.

(b.) Boxer in a boxing ring or footballer on the field, who makes body contact -no assault or
battery.

(c.) You may use my premises etc. "at your own risk." But for absence of consideration, this
could create contract.

(2) The plaintiff may have been to blame, or at fault, in whole or in part for his own injury-
contributory negligence. Example of situation (2):

A person may be treated as having impliedly "agreed to assume a risk" from the mere fact that he
has done something presenting a great risk or an unjustified risk e.g. taking a ride in a car driven
by a drunk; or a person who does something which involves a strong probability of being
injured; which was unjustified and unreasonable having regard to the circumstances.

(3) The plaintiff may have agreed to the defendant conforming to a standard of conduct which is
lower than normally required by the law. Example of situation (3): Where, in addition to doing
something which involves a risk, the plaintiff agrees to the defendant imposing the risk on him.

Here the plaintiff is not agreeing to acquit the defendant of liability should injury occur, example
Murray vs Harringway Arena" that is flying puck at an ice-hockey match. The case was decided
on the basis that no duty is owed by organisers of sporting events to guard spectators against
dangers normally incidental to the sport in question, or
Hall vs Brooklands Auto Racing Club - car at a race track. An attempt to rely on the defence of
volenti non fit injuria is likely to involve one or more of these situations.

However, it must be stressed that to succeed in the defence of volenti non fit injuria, the
defendant must prove the fact that the plaintiff voluntarily and freely with full knowledge of the
risk, agreed to incur it. The point was made in

Gyasi vs State Gold Mining Corpn.

It was an action by the plaintiff against the defendants for damages for injuries sustained in a
motor accident. The first defendants, by their pleadings and evidence, argued that the action must
fail because the plaintiff had control of their vehicle on the day of the accident but had allowed,
permitted or acquiesced in the manner in which their driver had driven the vehicle on that day,
thereby relying on volenti non fit injuria.

Applying the above principle, the defence failed. The court, presided over by Owusu- Addo J,
argued that, on the evidence, it could not be said that the plaintiff had consented to the manner in
which the driver had driven the vehicle. Nor could it be said that the plaintiff had permitted or
acquiesced in the negligent manner in which the defendant's driver had driven the vehicle.

The court was of the view that, for it to be said that anybody was controlling a driver, the
evidence must show the driver to be under the complete dominion of that other person. It was not
enough that the other person could ask the driver to reduce his speed. An employee, from the
foregoing remarks, it should be clear, will rarely be held volens, if, when he was injured, he was
obeying his employer's instructions, except where the risk he ran was necessarily or ordinarily
incidental to his work.

In Bowater vs Rowley Regis Corpn:

the plaintiff was a carter employed by the defendants to collect road sweepings. He was ordered
by the foreman of the defendants to take out a horse which, to the knowledge of both of them,
had run away, on at least two previous occasions, when driven by a fellow employee. The
plaintiff protested but the foreman said that it was an order of the borough surveyor.
Some days later, the horse ran away and the plaintiff was thrown from his cart and suffered
personal injuries. He sued the defendants, alleging that they were negligent in that they failed to
provide him with a horse which was safe and suitable for the work which he had to perform. The
trial judge upheld the defence of volenti raised by the defendants and the plaintiff appealed. On
the plea of volenti, Scott L.J. said:

"That maxim has to be applied with specially careful regard to the varying facts of human affairs
and human nature in any particular case just because it is concerned with the intangible factors of
mind and will.

For the purpose of the rule a man cannot be said to be truly 'willing' unless he is in a position to
choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on
which the exercise of choice is conditioned, so that he may be able to choose wisely, but the
absence from his mind of any feeling of constraint so that nothing shall interfere with the
freedom of his will. Without purporting to lay down any rule of universal application, I venture
to doubt whether the maxim can very often apply in circumstances of an injury to a servant by
the negligence of his master.

When the servant is engaged specifically for the performance of a dangerous duty and the
presence of danger is a mutually recognized element in the bargain for remuneration, the servant
obviously undertakes the risk for the sake of higher pay..." e.g. horse- breaker; or a person
working in an explosives factory; or a test pilot, etc. Lord Justice Goddard also stressed:

"The maxim non fit injuria is one which in the case of master and servant is to be applied with
extreme caution. Indeed, I would say that it can hardly ever be applicable where the act to which
the servant is said to be 'volens' arises out of his ordinary duty, unless the work for which he is
engaged is one in which danger is necessarily involved. A man, however, whose occupation is
not one of a nature inherently dangerous but who is asked or required to undertake a risky
operation is in a different position. To rely on this doctrine the master must show that the servant
undertook that the risk should be on him. It is not enough, that, whether under protest or not, he
obeyed an order or complied with a request which he might have declined as one which he was
not bound either to obey or to comply with.

For this maxim or doctrine to apply it must be shown that a servant who is asked or required to
use dangerous plant is a volunteer in the fullest sense, that, knowing of the danger, he expressly
or impliedly said that he would do the job at his own risk and not at that of his master."
From the cases, it is clear that, for the defence to apply it must be shown that the plaintiff chose
to be exposed to or undertake the risk. For the choice to be operative, the plaintiff must be aware
of it. He cannot be said to have chosen, if there are any constraints on his freedom of choice or
ability to act willingly, that is as a free agent."

CHAPTER 22

EMPLOYER'S DUTY TO HIS WORKERS AND TO THIRD PARTIES'

A. DUTY TO HIS EMPLOYEES

At common law, a master owes a duty of care to his workers. It is a personal one of a general
nature. Lord Wright summed up the duty thus (quoted with approval by Owusu- Addo J in

Issah vs Mim Timber:

in the case of Wilson & Clyde Coal Co. Ltd. vs English:

a duty which rests on the employer and which is personal to the employer, to take reasonable
care for the safety of his workmen, whether the employer be an individual, a firm, or a company,
and whether or not the employer takes any share in the conduct of the operations."

Before them he had stated":

"the obligation is three-fold:

1. the provision of a competent staff of men,

2. adequate material and

3. a proper system and effective supervision.

Who IS AN EMPLOYEE?

To address this question adequately, it must be remembered that the nature of employment is
now changing: part-timers; agency workers; home workers; contract workers; trainees etc.

The question who is the employee/workman/servant for the purposes of the application of the
vicarious liability principle has to be understood against the background of this changing work
environment. There are a number of tests for determining this:

1. INTEGRATION TEST or ORGANIZATION TEST:

Stevenson vs Macdonald:

Crucial to this test is the distinction between a contract of service and a contract for services.
Under a contract of service, a person is employed as part of the business and his work is done as
an integral part of the business. Whereas under a contract for services, his work, though done for
the business, is not integrated into it but is only accessory to it.

Here the workman is an independent contractor. The law is that an employee is not answerable
vicariously to an independent contractor.

In distinguishing between a servant and an independent contractor, Lord Thankerton stated in

Stevenson vs Macdonald that a contract of service existed where certain indicia were present,
namely:

1. the master's power of selection of his servant

2. the payment of wages or other remuneration

3. the master's right to control the method of doing the work

4. the master's right of suspension and dismissal. (i.e. disciplinary powers).

In Ready Mixed Concrete Limited vs Minister of Pensions:

3 conditions were laid down for the existence of a contract of service or employment, that is
master or servant relationship and provided another variant of the integration test:

1. the employee agrees to provide his work and skill to his employer in return for a wage or other
remuneration;

2. the employee agrees, expressly or impliedly, to be directed as to the mode of performance to

such a degree as to make the other his employer; and

3. the other terms of the contract are consistent with there being a contract of employment.

2. ENTREPRENEURIAL TEST:

In the Market Investigations case, it was said that, for the entrepreneurial test, there were three
critical questions, namely"

1. Whose business is it?

2. Is the party (the alleged employee) carrying on the business for himself or for a superior?

3. Is the party taking a financial risk with the chance of loss as well as profit? If A is the owner
of the business and carries it out for himself and bears the loss or benefits from the profit, then A
is an independent contractor and not an employer; the contract then is for services and not of
service.

3. CONTROL TEST

This test considers the person who controls the workman as his employer and therefore the one
who is vicariously answerable for his wrongs. As in many other aspects of the law, it is a matter
of degree.

Yewens vs Noakes:

it was said that: employee was anyone who was subject to the command of the master as to the
manner in which he shall do his work."

In Kussasi vs Ghana Cargo Handling Company:

it was said that the test is: "Does the alleged master have power of controlling his acts and
dismissing him for disobedience"?

Certain thorny questions rear their head:

(1) Where an employee of a master is loaned to another employer temporarily, who owes him the
duty of care in the interim?
 (2) If a tractor is hired out with its driver, who owes a duty of care to the driver- the owner of the
tractor or the one who has hired it? For a solution to question two, we must take a look at

Mersey Docks & Harbour Board vs Coggins:

Here, the harbour authority who let the crane and a driver to a firm of stevedores employed, paid
and had power to dismiss him, but the conditions of hire stated that the crane driver should be
regarded as a servant of the hirers (stevedores). The stevedores were entitled to control the
moving of the cargo but had no power to tell the driver how to work his crane. It was held that
the harbour authorities were liable for the crane driver's negligence as they were entitled to give
the orders as to how the work should be done.

Now, where a workman is hired to another employer, that employer who would be vicariously
liable for his torts according to the principles of Mersey Docks vs Coggins, is also the employer
"who owes him the duty of care."

This is the result of the decision in;

O'Reilly vs Imperial Chemical Industries Ltd .:

In that case, the plaintiff, lorry driver, was employed by British Road Services who paid him and
had power to dismiss him, but he and his lorry were put at the disposal of the defendants on a full
time basis. The defendants controlled and assisted in a general way the loading and unloading of
the lorry but, because an unsafe method of loading was adopted, the plaintiff received injuries as
a result of the fall of a drum of Terylene. He claimed damages for negligence against defendants.
It was held that his claim could not succeed. The plaintiff had failed to show that the defendants
had the right to direct how the unloading was to be carried out and, for this reason, the
relationship of master and servant did not exist between them for the occasion of the unloading
of the lorry and the defendants did not owe to the plaintiff the duty of providing a safe system of
work.

The duty then is owed to each individual employee and therefore each workman's particular
circumstances which are known or which ought to be known to the employer will determine the
standard of care to be taken. But merely because one particular employee is likely to suffer
greater pain does not impose a duty to take special care in respect of him on the employer, unless
the operation on which the particular employee is engaged is in itself a dangerous one which
needs special care.
In Paris vs Stepney Borough Council:

for instance, a workman who had only one eye, as the defendant knew, was employed as a
garage hand by the defendants. While working on the back axle of a vehicle, he struck a u-bolt
with a hammer in order to facilitate its removal. A chip of metal flew off and injured his good
eye.

He was not wearing goggles and he claimed damages against the defendants on the grounds that
they were negligent in failing to provide, and require the use of goggles as part of the system of
work. It was held, on appeal, that, as the operation in question was not in itself a dangerous one,
the defendants were not obliged normally to provide goggles as part of the system of work; and
that the plaintiff's disability was not relevant to the stringency of the duty owed him in that
respect because that disability exposed him not to a greater risk of injury, but only to a risk of
greater injury.

But the law does not require employers to dismiss employees, if this is the only way of avoiding
liability - Withers vs Perry Chain." Whether an employer owes the duty is a question of fact.

Thus, in Wilson & Clyde Coal Co. Ltd. vs English,:

a miner brought an action for damages in respect of personal injuries against his employers. The
question arose whether they were liable in respect of these injuries as they had delegated to a
competent servant the duty of taking due care in the provision of a reasonably safe system of
work in the mine. It was held that the miner was entitled to succeed because the employers could
not avoid their duty to provide a competent staff of men, adequate material and a proper system
of work and effective supervision by delegation.

The duty then is clearly personal to the employer, i.e., it is not discharged merely because he
engages others to do the work on his behalf. He is liable unless those he asked to do the work
exercise reasonable care and are competent to do the work as required of them.

What exactly the duty entails can sometimes be problematic.

In Qualcast (Wolverhampton) Ltd. vs Haynes:

 where boots were available but the defendant did not wear them, it was held that the employer
was not liable. This case, however, is difficult to understand. As regards the workman's failure to
wear spats destroying his case, it is understandable, for he could have these for the asking. Now
what about the boots? If an employer is to provide for his workmen because of the special
dangers to which the nature of their work might expose them, is this duty discharged merely by
making it possible for the workers to buy them? I think not.

The employer's duty, as has been already stated, is three-fold. He has a duty to provide:

1. competent staff or fellow workmen i.e. personnel;

2. adequate plant in the premises i.e. machinery, tools and raw materials and

3. a safe system of work. This phrase relates to the general management and effectiveness of
supervision. The duty is to provide a safe system of work. Let us now consider each component
of the duty seriatim.

1. Competent workman

The duty to provide competent fellow workmen was the basis of the decision in:

Black (Butler) vs Fife Coul Co, dot Ltd

In this case, the husband of the plaintiff was killed by an outbreak of poisonous gas, while
working in the coal mine of the defendant company, a limited liability company. In an action
under the common law and alternatively under the Employer's Liability Act, 1880, the trial court
found that the defendants were liable for not providing competent officials for the working of the
mine. On appeal, the Court of Session held that they were not liable under common law, having
used reasonable care to appoint managers of the necessary qualifications and experience, but
they were liable under the Employer's Liability Act, 1880. In a further appeal to the House of
Lords, it was held, reversing the Second Division of the Court of Session's decision, that there
was a duty on the defendants, as owners of the mine, to appoint and put in charge persons
competent to deal with the dangers arising in the mine; that they had not discharged that duty and
were therefore liable at common law for the sum of £400 awarded by the sheriff substitute.
Hudson vs Ridge Manufacturing Co. Ltd;

where an employee was injured by the foolish prank of a fellow employee, whose propensity for
mischief was known to the employers, the employers were held liable.

This component covers fellow workmen as well as supervisors put in charge by the employer.
They must have the competence to respond to the myriad of situations likely to occur at the
work-place. This will therefore depend on the nature of the operations of the employer.

2. Adequate tools

The employer must take care to provide adequate appliances and failure to supply such
appliances is a breach of duty. But this does not mean that the, employer must manufacture the
tools. As long as he takes care to procure the tools from reputable manufacturers or from market
overt, he has discharged his duty.

In Davie vs New Merton Board Mills;

the plaintiff's employers, the defendants here, had bought some tools including a drift on the
open market with a defect not discoverable on inspection, nor was intermediate examination by
the employers between the time of its manufacture and its use reasonably to be expected.

The plaintiff used the tool as a maintenance fitter and, owing to the defect in it, a piece flew off
the drift, when it was struck with a hammer by the plaintiff in the course of using it and
destroyed the sight of his left eye. There was no negligence in the employers' system of
maintenance and inspection and the accident was solely due to the defect in the drift.

It was held that the employers were not liable to the plaintiff for the injury to him caused by the
defective drift, since they had fulfilled their duty to him, namely to take reasonable care to
provide proper appliances and were not responsible for the negligence of the manufacturers, who
had no contractual relationship with the employers and, in manufacturing the tool, were not
acting as persons to whom the employers had delegated the performance of any duty that it was
for them to perform.
If the work involves special risks, the employer must provide protective materials and reasonable
steps should be taken to see that they were used.

In Clifford vs Challen & Sons;

a workman employed by the defendants had to use synthetic glue which could cause dermatitis
unless a special cream was used and any parts of the skin on to which some fell had to be
washed. These precautionary measures, set out in a government notice, were put on the notice
board of the defendants' work place. The cream was kept in the factory store to which the
workmen had access. The foreman of the defendants took no steps to ensure its use by the
workmen.

The plaintiff contracted dermatitis and claimed damages from his employers on the ground that
his injury resulted from their having failed to supply a safe system of work. It was held that the
protective cream should have been provided in the shop itself and a system established whereby
the men would use it according to the government notice. By failing to do this, the defendants
were in breach of their duty to the plaintiff and were liable to him in damages.

However, because of the plaintiff's contributory negligence, the amount of damages was to be
borne equally by the parties.

Also in Smith vs Leech Brain & Co. Ltd.

it may be recalled the galvanizer employed by the defendants was splashed by molten metal and
he later contracted cancer from which he died. It was found that the defendant had been
negligent and that the burn was the promotion agent, promoting cancer in tissues which already
had a pre-malignant condition as a result of the plaintiff having worked at a gas works.

It was held that the man's widow was entitled to damages under the Law Reform (Miscellaneous
Act), 1934, and the Fatal Accidents Acts, 1846-1908, as the type of injury the man suffered was
reasonably foreseeable although the defendants could not have foreseen the ultimate
consequences. Lord Parker laid down the test in the following words:

"the test is not whether these defendants could have foreseen that a burn would cause cancer and
that the man would die.
The question is whether these defendants could reasonably foresee the type of injury which is
suffered, namely, the burn." This means the employer must protect his employees from
foreseeable harm.

But in Woods vs Durable Suites Ltd, :

the plaintiff, an experienced workman of 56 years, had been specifically instructed by the
manager to use the protective measures against synthetic glue and the possibility of contracting
dermatitis. He did not fully observe them and, as a result, contracted dermatitis.

It was held that the defendants had discharged their duty to take reasonable care for the safety of
their workmen and not to subject them to any unnecessary risk and that they were under no duty
to provide a foreman, constantly watching to ensure that a workman of his age and experience
took precautions he had been instructed to take, as they had given him proper instructions and
provided him with the requisite materials and facilities for his protection.

3. Safe system of work

This is an omnibus term used to describe how the work should be carried out, including the
different parts to be played by various employees, the time for work and the organisation of
work. Long established practice in a trade is regarded as strong evidence of reasonable conduct;
but this is not conclusive. It has been held, in one case, that the system of work was unsafe when
a servant at a stone quarry was injured by blasting because the warning signal was not given at a
reasonable enough time to enable him leave the place. See Kussasi vs Ghana Cargo Handling"
fork lift driver hit by pallet of rice;

DEFENCES

The same defences are available as in other forms of negligence. Contributory negligence is
important, as could be seen in Clifford vs Challen, in reducing damages. Although the courts are
unwilling to allow the doctrine of voluntary assumption of risk, if the employment necessarily
involves particular (Withers vs Perry Chain) risks (e.g. cinema stunt man), the employer would
be held to have no duty to remove these risks and a workman injured in consequence of
undertaking them will not recover in negligence. It must always be borne in mind that the basic
question is whether the employer has failed to take reasonable care for the safety of his workman
and the tripartite division does not necessarily exhaust the field.

An employer who delegates to an independent contractor will probably be liable for the latter's
negligence, if the work might normally have been done by the employer's servant. Beyond that,
the extent of his liability for the negligence of independent contractors is doubtful, as
exemplified by Davie vs New Morton Board Mills Ltd.

The matter is also covered by statute. See the Factories, Offices and Shops Act (Act 325) as
amended by PNDC Law 66 and PNDC Law 275.

B. EMPLOYER'S DUTY TO THIRD PARTIES or VICARIOUS LIABILITY

The law is that an employer is answerable to the victim(s) of his servant's torts. This liability is
based on the principle of "respondeat superior" - vicarious liability. The basis of this principle is
hard to fathom in a system of law said to be based on fault. We may therefore begin by noting
the traditional justifications. The following justifications are usually given for this principle:

1. It serves the loss distribution function of the law of torts, i.e. the employer is better able to
distribute the cost of this liability either through insurance or to his customers.

2. It encourages the employer to exercise better control over his employees, thus supporting the
policy of accident prevention.

3. It encourages the employer to be careful in the selection of employees. (Yet vicarious liability
operates almost as strict liability!)

4. The employer takes the benefits of the work of the employee, so he should also shoulder the
risks attached to that activity.
5. From the victim's point of view, the compensation function of torts law requires that liability
be imposed on the employer who is in a position to pay rather than the employee who may be a
person of straw.

6. Often the duty breached by the employee is a duty owed by the employer; therefore, it is only
fair that he should carry the can.

THE PRINCIPLE OF LIABILITY TO THIRD PARTIES

As with employer's duty to his workers, VICARIOUS LIABILITY IS CONCERNED with the
EMPLOYER and his WORKER The principle states that an employee is liable for the wrongs
(torts) committed by his worker in the cause of the employee's employment. There are three
issues here:

1. Is the WRONGDOER an employee of the Employer?

2. Was the wrong committed in the course of doing his master's business? or

3. Does the wrong have a CLOSE CONNECTION to his work or is it sufficiently WORK-
RELATED as distinct from PERSONAL

The principle was formulated in the 1st edition of Salmond on Torts (1907) thus:

"A wrongful act is deemed to be done in the COURSE OF THE EMPLOYMENT if: it is either.

(1) a Wrongful act AUTHORISED by the Master or

(2) a wrongful and UNAUTHORISED MODE of doing some act authorized by the master. It is
clear that the master is responsible for acts actually authorised by him: for liability will exist in
this case, even if the relation between the parties was merely one of agency, and not one of
service at all. But, a master, as opposed to the employer of an independent contractor, is liable
even for acts which he has not authorized, provided they are so connected with acts which he has
authorized that they may rightly be regarded as MODES-although improper modes of doing
them." See Lord Steyn in Lister vs Hosley Hall."

Since Lister, it is no longer the law that intentional acts were not usually to be regarded as
connected with acts authorized by an employer.

The question is whether the wrongful conduct was so closely connected with acts the employee
was authorised to do that the wrongful conduct was to be fairly and properly regarded as done by
the employee while acting in the ordinary course of his employment. The close connection,
however, is FACT SENSITIVE and does not provide guidance as to the TYPE or DEGREE
which will be sufficient to trigger that test.

We may use some cases to place the test in context.

Century Insurance Company Limited vs Northern Ireland Road Transport Board:

where Lord Salmond claimed that a servant's smoking was part of and was done in the course of
business.

In that case the appellants had insured the respondents against liability to third parties caused in
the running of a petrol tanker belonging to the respondents. Under an agreement between the
respondents and X, a petroleum refiner, the respondents undertook to deliver petrol to any
destination ordered by X. There was a clause in that agreement that the employees of the
respondent would obey and carry out any instructions by X, while carrying out the terms of the
agreement. On this occasion, an employee of the respondents (Davison), while delivering petrol
from a tanker to an underground tank of a customer of X_{v} lighted a cigarette and negligently
threw away the lighted match. As a result there was a fire outbreak and considerable damage was
caused to property.

The appellants settled the claims arising and, in this action, sought to indemnify themselves on
the grounds that, because of the clause in the agreement between the respondents and X, Davison
was an employee of X at the time of the accident. The issues were:
1. Was Davison at the material time an employee of X or the respondents.

2. Was his negligent act done in the course of his employment. The trial judge answered the
questions in favour of the appellants and, on appeal, the Court of Appeal reversed his decision.
On further appeal to the House of Lords, the appeal was dismissed.

Viscount Simon said: "they also serve who only stand and wait." So Davison's negligence in
smoking at the time and throwing away the lighted match was done in the course of his
employment to the respondents and so the respondent's policy with the appellants was operative
to cover this liability.

Beard vs London Omnibus Company:

in that case, Romer C.J. said that a bus conductor does not drive as part of the course of his
employment. The plaintiff, while riding a Bicycle, was run over by an omnibus belonging to the
defendants. At the material time, according to the plaintiff's evidence, the bus was being driven
by the conductor. Apparently the bus had come to its last stop and, while the driver was out
cating, the conductor drove it in order to bring it to the point where it will begin its return
journey.

It was then that the bus hit the bicycle. Judgment was given for the defendants and the plaintiff
appealed. The appeal was dismissed. According to the Court of Appeal, the plaintiff had not
established by evidence, that the conductor, at the time he was driving the bus, was acting within
the course of his employment. Lord Justice Vaughan Williams tried to provide a balanced but
clear view of the matter:

"I think very strongly that it would be unfortunate that it should go forth to the public that,
whenever a conductor is found exercising some function of the driver, no case can be made
against the omnibus proprietor unless the plaintiff is in a position to call evidence to account for
the temporary absence of the driver.

It seems to me to be a sounder view that, where a driver and a conductor are sent out in charge of
an omnibus and complaint is made of some act done by the conductor, it should be left to the
jury to say whether that act so complained of was within the authority given to the conductor.
It is all very well to say that one knows that the authority given to a driver, is to drive and that
given to the conductor is to conduct, but it is incorrect to say that one is entitled to deal with the
case on that hypothesis."

The third case is Akyigina vs Adjei,:

a driver of the appellants, while driving his vehicle knocked down and killed one Adjetey Kofi.
An action for damages was brought by the administrators of the estate of Adjetey for
compensation under the Civil Liability Act 1963 (Act 176). Judgment was given in favour of the
respondents.

The appellants appealed arguing, inter alia, that the learned judge was wrong in holding them
vicariously liable because, at the time of the accident, the driver was not acting in the course of
the appellant's business.

The appeal was dismissed. The Court of Appeal held that since the vehicle was owned by the
appellant who employed the driver who drove the vehicle at the material time to cart sand and
stone, a presumption was raised that the accident occurred at a time when the driver was driving
in the course of his master's business. The onus shifted on the appellant to rebut this
presumption; he had not rebutted it.

Ricketts vs Tilling:

an action by the plaintiff for damages. It appeared that the plaintiff suffered injuries owing to the
negligent driving of an omnibus by the defendant's servant. When the bus came to its final
terminus, their driver allowed the conductor to turn it round, while he sat beside him.

Owing to the negligent driving of the conductor, the bus mounted a pavement, knocked down a
lamp post and several persons (one of them died for which the conductor was convicted of
manslaughter) were severely injured. The plaintiff, one of those knocked down, received severe
injuries.

At the trial, the learned judge held, on the authority of Beard vs London General Omnibus Co.,
that there was no evidence that the conductor had any authority from the defendants to drive the
bus.

Accordingly, he gave judgment in favour of the defendants. The plaintiff applied for judgment or
new trial (appealed).
A new trial was ordered. In the opinion of the Court of Appeal, the driver was negligent either in
allowing the conductor to drive the bus or in not seeing that the conductor drove properly. This
was negligence in the course of his employment and negligence for which the defendants (his
masters) were liable. On these facts, the question of the cause of the injury should have been left
to the jury.

Beard's case was distinguished on the grounds that the case was decided on its facts. It was
pointed out that in that case there was no evidence either that the conductor drove the bus in the
course of his employment or on the authority of anyone for whose negligence the masters could
be held liable. As Romer L.J. said in that case:

"I agree that the plaintiff's appeal fails. If one sees in the streets of London an omnibus
admittedly belonging to the defendant company driven in the ordinary way by a person who
appears to be a driver, the presumption is that he is authorised by the company. That presumption
may be rebutted.

In this case it was rebutted by the plaintiff's evidence, for it was proved that the de facto driver
was not the person authorised to drive, but a person authorised and employed to act as conductor.
In such a case the onus of showing some special authority given to the conductor to do the act
which he did lies upon the plaintiff.

No such authority was shown, and no case of necessity to do the acts which the conductor did
was suggested, nor do the facts lead to any presumption that a case of necessity had arisen.

The plaintiff has not met the onus of proof which was on him by giving the requisite evidence;
and I therefore think that the judgment appealed against was right. Appeal dismissed."

TESTS OF LIABILITY

The following cases illustrate the detour which is in or outside the scope of one's employment.

In Whatman vs Pearson:

the defendant, who was engaged in constructing sewer, employed a number of people with
horses and carts to cart the soil excavated from the construction site to another place. The men
were allowed one hour for dinner but were under instructions never to leave their horses, carts or
work. One of the employees, contrary to instructions, went home to dinner at a place about one-
quarter of a mile out of his way, left his cart and horse unattended in the street in front of his
door.

The horse ran away and damaged the plaintiff's railways. The trial judge left the question
whether the driver had been negligent and whether he was, at the time, acting within the scope of
his employment to the jury.

And the jury answered in the affirmative. On appeal, it was held that the issue had been properly
left to the jury and that the jury had ample evidence on which to base their holding. Byles J thus
justified the conclusion:

"When the servant left the horse at his own door without any person in charge of it, he was
clearly acting within the general scope of his authority to conduct the horse and cart during the
day." also on the same point noted:

Keating J "Upon the first point, Mr. Chamber's contention in substance is that there was such an
amount of deviation by the defendant's servant from the line of his duty, that he ceased to be
acting in the course of the employment of his master. It is always, however, a question of
degree."

Zagloul vs Kumasi Brewery Limited:

In that case, on the 17th March 1961, a delivery van belonging to the defendant company,
collided with the plaintiff's taxi car at the junction of Kwame Nkrumah Avenue and Farrar
Avenue, Accra, and caused extensive damage to it. The collision was caused by the negligence
of the defendant's driver who turned into Farrar Avenue from Kwame Nkrumah Avenue without
giving any signal to vehicles approaching from the opposite direction.

We may compare the Whatman and Zagloul cases with the cases where a servant is held to be on
a frolic of his own.

In Rayner vs Mitchell:
the employee of the defendant damaged the plaintiff's cab. The employee's job involved carting
beer to the customers of the defendant (the defendant was a brewer of beer) and on his return
journey to the brewery he called for empty casks wherever they would be likely to be collected
and he was paid a commission by the defendant for this. On the day of the accident, the driver
had, without permission, taken the defendant's horse and cart for his own purposes, namely, to
deliver a child's coffin at a relative's house. On his way back and before the accident, he had
called at a public house, collected two empty barrels and the accident took place shortly later.
The master was held not liable (per Coleridge C.J) because the servant was not acting within the
scope of his employment."

Lister & Others vs Hesley Hall Limited:

In this case, between 1979 and 1982, the claimants were resident at a school for boys with
emotional and background behavioural difficulties, owned by the defendants. The latter
employed G to take care of the boys as warden of the school's boarding annex. Unknown to his
employers, G systematically sexually abused the claimants, while they were resident at the
school. He was eventually convicted of multiple offences involving sexual abuse.

Subsequently, the claimants brought actions for personal injury against the defendants, alleging,
inter alia, that they were vicariously liable for the torts committed by their employee, G. It was
held: When determining whether an employer was vicariously liable for an employee's wrongful
act, it was necessary to concentrate on the relative closeness of the connection between the
nature of the employment and the particular tort, taking a broad approach to the nature of the
employment by asking what was the job on which the employee was engaged for his employer.
The employers were held liable to the claimants on the application of this test.

Paul Graham & others vs Commercial Bodyworks Ltd.:

In this case, a terrible incident occurred at the bodyworks repair shop of the defendants. A friend
and an employee of the plaintiff/applicant lit his overall which he had sprinkled with a highly
inflammable thinning agent. The overall went up in flames and the plaintiff/applicant was caused
considerable injury.

The employee, Mr. Wilkinson disappeared and the plaintiff/applicant had no recollection of the
incident. The trial judge categorised the co-employees actions as deliberate and "clearly reckless"
about the risks he created. The only question for the trial judge was whether the
defendant/respondent were vicariously liable for the ex- employee's action It was held that they
were not and the plaintiff appealed. In discussing the law, Lord Justice Longmore said thus:
There is no decided case which governs the present case. But as Lord Nicholls" said assistance
given by previous court decisions can be particularly valuable. I can mainly confine the relevant
authorities to those that concerned intentional conduct in the workplace.

Before doing so, however, it is useful to have in mind the two Canadian authorities of Bazley vs
Curry and Jacobi vs Griffiths which were followed in Lister vs Hesley Hall and said by Lord
Steyn to be the starting point for any inquiry about vicarious liability at any rate in sex cases.

It is the first of these cases that is particularly useful because McLachlin J (as she then was)
considered the principles of vicarious liability at paras 41-42 saying:

"Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in
determining whether an employer is vicariously liable for an employee's unauthorized,
intentional wrong in cases where precedent is inconclusive, courts should be guided by the
following principles:

1) They should openly confront the question of whether liability should lie against the employer,
rather than obscuring the decision beneath semantic discussions of "scope of employment" and
"mode of conduct".

2) The fundamental question is whether the wrongful act is sufficiently related to conduct
authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is
generally appropriate where there is a significant connection between the creation or
enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's
desires. Where this is so, vicarious liability will serve the policy considerations of provision of
an adequate and just remedy and deterrence. Incidental connections to the employment
enterprise, like time and place (without more), will not suffice. Once engaged in a particular
business, it is fair that an employer be made to pay the generally foreseeable costs of that
business. In contrast, to impose liability for costs unrelated to the risk would effectively make the
employer an involuntary insurer.

3) In determining the sufficiency of the connection between the employer's creation or

enhancement of the risk and the wrong complained of, subsidiary factors may be considered.
When related to intentional torts, the relevant facts may include, but are not limited to the
following:

1. the opportunity that the enterprise afforded the employee to abuse his or her power:

2. the extent to which the wrongful act may have furthered the employer's aims (and hence be
more likely to have been committed by the employee);

3. the extent to which the wrongful act was related to friction, confrontation or intimacy inherent
in the employer's enterprise;

4. the extent of power conferred on the employee in relation to the victim;

5. the vulnerability of potential victims to wrongful employee's power..

Applying these general considerations to sexual abuse by employees, there must be a strong
connection between what the employer was asking the employee to do (the risk created by the
employer's enterprise) and the wrongful act. It must be possible to say that the employer
significantly increased the risk of the harm by putting the employee in his or her position and
requiring him to perform the assigned tasks.

The policy considerations that justify imposition of vicarious liability for an employee's sexual
misconduct are unlikely to be satisfied by incidental considerations of time and place. For
example, an incidental or random attack by an employee that merely happens to take place on the
employer's premises during the working hours will scarcely justify holding the employer liable.

Such an attack is unlikely to be related to the business the employer is conducting or what the
employee was asked to do and, hence, to any risk that was created. Nor is the imposition of
liability likely to have a significant deterrent effect; short of closing the premises or discharging
all employees, little can be done to avoid the random wrong. Nor is foreseeability of harm used
in negligence law the test.

What is required is a material increase in the risk as a consequence of the employer's enterprise
and the duties he entrusted to the employee, mindful of the policies behind vicarious liability."
14. Although all this was, no doubt, said with sex abuse cases primarily in mind, it is a useful
gencral statement of the position and justifies an inquiry into the question whether there is a
close connection between the creation or enhancement of a risk and the wrong that accrues
therefrom.

On the facts of this case I would, by reference merely to the passage quoted above, conclude that,
although the defendant employers did create a risk by requiring their employees to work with
thinning agents, it is difficult to say that the creation of that risk was sufficiently closely
connected with Mr. Wilkinson's highly reckless act of splashing the thinner onto Mr. Graham's
overalls and then using a cigarette lighter in his vicinity. It is only the first of McLachlin J's five
factors that is present in this case.

The other factors tell against the imposition of liability. The wrongful act did not further the
employer's aims; there was no friction or confrontation inherent in the employer's enterprise and
such intimacy as there was likewise had no connection with that enterprise; it is inappropriate to
talk either of power conferred on Mr. Wilkinson in relation to Mr. Graham or any particular
vulnerability of Mr. Graham to the wrongful exercise of such power.

15. That is not, of course, the end of the matter because it is necessary to see (as Lord Nicholls
said) whether there are useful authorities in what is here the relevant field of intentional (non-
sexual) wrongdoing that might controvert the above conclusion

16. The United Kingdom authorities tend to resolve themselves into two groups. On the one hand
there are cases in which the use of reasonable force or the existence of friction in the nature of
the employment; thus a night-club owner may be vicariously liable for injuries caused by force
used by a bouncer in the course of his duties and a rugby club owner may be vicariously liable
for injuries caused by a punch-up during or in the immediate aftermath of a game.

Similarly there are cases of what one might call normal friction in the workplace which gets out
of hand as opposed to uncalled for antagonism which, while occurring in the workplace,
originates outside it.

17. Weddell vs Barchester Health Care and Wallbank vs Wallbank Fix Designs Ltd. form an
instructive contrast. In the first case the employer of a care home was held not to be vicariously
liable when one employee made a call out of hours to another employee (Mr. Marsh) requesting
him to do a voluntary shift to replace a sick employee. Mr. Marsh, who had a history of
antagonism with the first employee (Mr. Weddal), was at home in an inebriated state having had
a row.
He declined to come: instead he bicycled to the care home and launched an unprovoked attack on
Mr. Weddall. The employer was held not be vicariously liable. Mr. Wallbank, in the second case,
was at work in the normal way and was somewhat curt with a co-employee when indicating that
he needed help with loading bed frames onto a conveyor bell. There was some minor history of
difficulty between them but on this occasion the co-employee lost his temper and threw Mr.
Wallbank 12 feet across the factory floor onto a table.

The employer was in that case held to be vicariously liable because the possibility of friction is
inherent in any employment relationship particularly in a factory where instant instructions and
quick reactions were required. None of these cases is decisive of the present case.

18. Somewhat closer is a second group of cases in which the nature of the employment is not
such as to require the exercise of some force or to involve the kind of friction inherent in an
employment relationship. These cases arise from intentional acts at the workplace (whether
horse-play or rather more serious conduct) and do not usually give rise to vicarious liability. This
group is best exemplified by two Scottish cases.

In Wilson vs Exel UK Ltd.;

an employee, who supervised the defendant's health and safety policy, pulled Ms. Wilson's
ponytail making a ribald remark while he did so. This was little more than a prank but Ms.
Wilson sustained some injury. The Inner House held that the supervisor's actions were not
connected with his employment; in pulling Ms. Wilson's ponytail he was not doing anything in
relation to his health and safety duties. The acts of the supervisor were a mere frolic for which
the employer was not vicariously liable. Lord Carloway (with whom Lord President Hamilton
and Lord Reed agreed) discussed cases within the first group I have described and then said:

But there is a crucial distinction between these cases and the situation where the employee is not
doing something connected with his duties but is engaged on a "frolic" of his own, in the sense
of acting purely on a private venture unconnected with his work. A barmaid, charged simply
with serving customers, who assaults a customer with a glass, does not bring home liability to
her employer (Deatons Property vs Flew, quoted in Lister vs Hesley Hall (supra).

As Lord Reed said in Ward vs Scotrail Railways:

there can be no vicarious liability based upon a co-employee's sexual harassment where that
involved "an unrelated and independent venture of his own; a personal matter, rather than a
matter connected to his authorized duties.

Gibson vs British Rail Maintenance is an illustration of a pursuer correctly abandoning a case of

vicarious liability based upon the consequences of a prank carried out by co-employees.

The cases are all consistent with the dictum of McLachlin in Bazley vs Currie (supra at para
that: "an incidental or randoin attack by an employee that merely happens to take place on the
employer's premises during working hours will scarcely justify holding the employer liable. Such
an attack is unlikely to be related to the business the employer is conducting or what the
employee was asked to do."

The most recent English authority on pranks at work brought to our attention was;

Aldred vs Narancy;

in which a co-employee pushed a wash basin against Ms. Aldred in order to startle her. She
turned round quickly to see what was going on and injured her back in the process. Applying the
traditional Salmond test this court held that the co-employee's act was not so connected with the
authorised act of going into the wash room for normal purposes that it was appropriate to impose
vicarious liability on her employers, Smith vs Crossley Brothers Limited is to the same effect
but obiter,

These cases were of course, pre Lister vs Hesley Hall and it is for that reason that I have relied
more on the Scottish cases which post- dated Lister.

In these circumstances I do not think that the fact that the defendants can be said to have vested
discretion in Mr. Wilkinson to use the thinners and that he was obliged to do so carefully by
reason of his contractual obligations carries the matter any further. That is little different from
any employer-employee relationship. Nor do I think that the fact that the defendant could be said
to have created the risk is sufficient to impose liability. The real cause of Mr. Graham's injuries
was the no doubt frolicsome but reckless conduct of Mr. Wilkinson which cannot be said to have
occurred in the course of his employment.
23 While having considerable sympathy for Mr. Graham in all the circumstances of this case, I
fear his appeal must be dismissed. The extract is long. But it contains such wisdom on
developments on vicarious liability that the author believes it should be beneficial to the reader.

EFFECT OF EXPRESS PROHIBITION

Sometimes the master expressly prohibits the employee not to do the very act in the course of
which he commits the tort. The issue which then arises is whether the master should be held
liable in the circumstances.

Here a distinction is drawn between:

1. the mode of doing an act; and

2. The act itself.

The rule is that an express prohibition will not always absolve the master from liability.
However, in certain appropriate circumstances, an express prohibition will exonerate him. The
rule is justified on the grounds that, if it were otherwise, a master could simply try to avoid
liability by generally enjoining his employees not to be negligent. A few cases will help illustrate
the point:

Canadian Pacific Railway Company vs Lockhart per Lord Thankerton;

Limpus vs London General Omnibus" racing buses case.

Rand Limited vs Craig for acts of a servant for his own convenience deliberately outside scope.

The effect of the cases is that if the prohibition is regarded as delimiting the scope of the
servant's employment, the prohibited act will be outside the course of employment. If what is
prohibited is an improper method of carrying out the servant's authorised duty, it will be within
the course of employment.

Morris vs Martin:
a master was held liable for the theft of a mink coat by the servant to whom it had been entrusted
for cleaning. The English Court of Appeal was of the view that, if the theft had been by a servant
who had no duties in relation to the coat, the master would not have been liable.

PROTECTING MASTER'S PROPERTY

Further, the servant is under a duty to take reasonable steps to protect his master's property in
case of emergency. Whether the servant's acts exceed this implied authorisation is a matter of
degree.

In Broom vs Morgan:

it was held that a procedural bar in favour of a servant does not necessarily inure to the benefit of
a master.

Buobuh vs Ministry of Interior:

Where the plaintiff proves that the damage was caused with a car, the fact of ownership of that
car is prima facie evidence that the car, at the material time, was being driven by master or
owner, or his servant. Aboaku vs Tettey; see also Akyigina vs Adjei.

What if a vehicle is under hire purchase? In this case, the purchaser has complete possession and
the true owner exists to collect payment in installments of the purchase price.

In Fynn vs Badu:

It was held that the person in possession, directing the movement of the truck is the master.
CHAPTER 23

NEGLIGENCE IN RELATION TO Premises.

OCCUPIER'S LIABILITY (that is liability for damage which occurs on the premises)

The obligations of the occupier for damage which occurs on his premises depend on the
character of the entrant. In this respect, the law draws a distinction between lawful and unlawful
visitors.

The term, "lawful visitors," covers four categories of entrants:

1. contractual visitors;

2. invitees;

3. licensees (non-business); and

4. persons entering as of right, example policemen, factory inspectors, meter-readers etc.

Contractual visitors are persons who enter the premises in pursuance of a contract.

An invitee is a person who enters the premises for a purpose in which the visitor and the occupier
have a mutual economic, material or business interest; that is to say one who enters premises to
do business with the occupier or a person both permitted to enter and whose entry is in the
interest of the occupier, example a customer in a shop.
A licensee is the one who enters premises by the permission of the occupier for a social purpose,
example a person permitted to take a short cut across land or a social visitor. Thus a person
whose presence is only tolerated is also a licensee.

An Occupier

An occupier is the one who is in occupation or control of the premises. He or she need not be a
lessee; only a right to the possession of the premises occupied with a right to exclude therefrom
all other persons.

The unlawful visitor is the trespasser.

LAWFUL VISITORS

1. Contractual Visitors

Where there exists a contract between the parties, the nature and extent of the occupier's
obligations in relation to the safety of the premises will be a matter of construction from the
contract. More often than not the contract does not contain any clause on the safety of the
premises. If the contract is silent on the point, a term will be implied into the contract. What the
term is will be determined from the contract generally. But, essentially, it is that the premises are
safe for the purposes contemplated by the parties.

Frances vs Cockrell:

the defendant and some other persons engaged the services of an independent contractor to erect
stands for the accommodation of persons who wished to watch some steeplechase races. The
plaintiff who had paid for admission was injured, when the stand, as a result of being negligently
done, collapsed.

Neither the plaintiff nor the defendant knew that the stand had been improperly constructed.
HELD:

It was held that there was an implied warranty in the contract between the plaintiff and the
defendant, that due care had been used in the construction of the stand by those whom the
defendant employed to do the work. This warranty was breached by the collapse of the stands.
Therefore, the defendant was liable to the plaintiff.

Maclenan vs Segar:

the plaintiff, an unmarried woman, claimed damages from the defendant, as a result of a fire
outbreak at the defendant's hotel, while the plaintiff was staying there as a guest. It was found
that the fire resulted from the absence of reasonable skill and care on the part of those who
carried out a kitchen fire scheme earlier and that the defendant was negligent in not making
further inquiry than he did after a previous fire outbreak.

HELD:

It was held that, by the contractual relationship existing between an innkeeper and a guest, there
was an implied warranty by the keeper that the inn-premises were, for the purpose of personal
use by the guests, as safe as reasonable care and skill on the part of anyone could make them.

The innkeeper was, however, not responsible for defects which could not reasonably be
discovered by inspection as far as the construction, alteration, repair or maintenance of the
premises are concerned. Again the defendant was held liable to the plaintiff.

The duty owed then is that an occupier warrants that his premises are as safe, for the purposes of
the contract, as reasonable care and skill on the part of anyone can make them. It matters not that
the negligence is that of the occupier's servants or independent contractors.

Premises for this purpose would include buildings, vehicles, race-stands, railway carriages, etc.

However, where the occupier could not have discovered the defect, even by the exercise of
reasonable care, there is no liability.
Gillmore vs LCC:

Here the plaintiff joined a physical training class, organised by the defendant council, for a small
fee. While engaged in one exercise, involving hopping on one leg and lunging at another to force
her to put her raised leg down, the plaintiff slipped and suffered injury. The whole class, at that
time, were wearing rubber shoes. It appeared also that there had been a discussion as to whether
the floor should be covered with matting or dingget.

HELD:

It was held that the duty of the council was to provide a floor which was reasonably safe in the
circumstances and this they had failed to do. Furthermore, that the accident did not result from a
risk which the plaintiff had agreed to take, and so the defence of volenti non fit injuria was not
available.

The above case involved the interior of a premises. A case on the exterior was:

Bell vs Travco Hotels:

The plaintiff, a paying guest at the defendant's hotel, fell and suffered injuries while walking
down the quarter-mile drive-way which was the only road for pedestrians to and from the hotel.
He claimed damages for breach of a warranty that the premises were as safe as reasonable care
and skill could make them, and also that they failed to warn her, an invitee, of an unusual danger
on their premises. The trial judge found for the plaintiff but, on appeal, the judgment was
reversed on the grounds that the duty was only owed in respect of the interior of premises.

The only duty here was to see to it that the drive-way was reasonably safe for pedestrians and
that the defendants had discharged this duty, and that there was no unusual danger here.

Thus, it will be seen that, in the above case, both Lords Goddard and Singleton felt that the
principle of duty of care of an occupier to contractual visitors was relevant only to the interior of
premises. However, Charlesworth has argued that the principle should be the same in spite of
Lord Goddard's view.

It is no defence for the occupier to say that the defect was an open danger which was obvious to
all. The occupier must see to it that his premises are safe for the purposes of his contract. If the
premises are used for sports or to watch entertainment, the warranties are that the premises are fit
for that purpose, having regard to the normal risks of that entertainment or sport.

2. INVITEES

As noted earlier, these are persons who come to the premises for a purpose in which they and the
occupier have a material a business or an economic interest. Such is the case of

Indemaur vs Dames:

The plaintiff, a journey-man gas fitter in the employ of a patentee, went on to the defendant's
premises to examine several burners and to test new apparatus they had fixed on the defendant's
premises. While thus engaged, and in circumstances in which the evidence is conflicting, he fell
through a hole accidentally, without any fault or negligence on his part and was injured.

The hole was used by the defendant in connection with his sugar business. It was held that, in as
much as the plaintiff was upon the defendant's premises on lawful business, in the course of
fulfilling a contract in which he or his employer and the defendant both had an interest and the
hole or shoot was from its nature unreasonably dangerous to persons not usually employed upon
the premises, but having a right to go there, the defendant was guilty of a breach of duty towards
him in suffering the hole to be unfenced.

The duty, then, is that an occupier must take reasonable care to prevent injury to the invitee from
unusual danger of which he knows or ought to know. What is unusual danger? Perhaps a danger
is still unusual even though it is known. It is unusual, if it is not customary to have such a danger
in the place where it is found; for example, an unguarded hole leading to an office block is an
unusual danger. Or a train approaching a level crossing with the gates open; or pieces of glass at
a park where children play; or trees lining an airport.

Even if there is an unusual danger, the occupier is only liable for those dangers about which he
knows or ought to know. The law is that he ought to know those dangers which are discoverable
by the exercise of reasonable care and skill.

In Griffiths vs Smith:
the managers of a school, created by the Education Acts, issued invitations to, among others, the
appellant to attend an exhibition, on the school premises, of work done by the pupils, one of
whom was the appellant's son. While this display was in progress, the floor of the room
collapsed and the appellant suffered severe injuries in respect of which she sued the managers for
damages. It was held that:

1. the managers were a public authority within the protection of the Public Authorities Protection
Act, 1893;

2. the authorisation of the display was in exercise of their functions as such;

3. the neglect or default proved against the managers was the neglect or default in the exercise of
their statutory duty;

4. the appellant was an invitee and not a mere licensee; and

5. the action failed not having been brought within six months by the appellants as required by
statute.

The law is that, to discharge the duty, the occupier must warn the invitees through notice or
lighting, guarding or otherwise, to prevent injury to them. Danger perhaps ceases to be a danger
when warning is given or when it is obvious enough or ought to have been known by a
reasonable person.

The law protects an invitee so long as he keeps within the limits of his invitation. If he exceeds
his invitation, he may become a trespasser. Example a guest in a hotel, as an invitee, remains so,
for as long as he keeps within that part of the hotel to which he is reasonably expected to be.

See Walker vs Midland- the guest who went to look for the water closet but entered the well of a
lift and died. So, for example, a door marked private may mark the limits of one's invitation.
How about a male guest who enters a door marked "Ladies"?
But for a child, the situation may be different. The law may be liberal in determining whether the
child has exceeded the limits of his/her invitation.

Pearson vs Coleman Brothers.

the plaintiff, a seven year old girl, who had gone to watch a circus with her twelve year-old
sister, went out during the performance to relieve herself. There was no lavatory and so she got
out of the fence and, seeing an attractive spot for her purpose, went there to do her thing but, in
so doing, she came near to the lions' cage and was mauled.

In a claim by the plaintiff for damages, it was held that, as the plaintiff was an invitee to the
circus and wandered about not out of curiosity but in a reasonable search of a secluded spot to
relieve herself, she must be taken to have reached the spot where she was injured pursuant to the
original invitation to the circus.

It was not clear whether the zoo lager had been sufficiently marked off to show the child that it
was a prohibited spot and so the defendants were liable in damages, as keepers of dangerous
beasts, for a breach of a duty to the plaintiff to keep the beasts so confined as to be incapable of
injuring her.

We may compare this decision with Mersey Docks & Habour Board vs Proctor.

In this case, the husband of the respondent widow was working on some ship and left to go to the
toilet in a thick fog. The man's body was found in the west float (there were two floats - east and
west - and the deceased was working in the east float) opposite to a point where there was a gap
in the line of chains, the chain having been taken down for the convenience of some men
working on the quay and having been left down for several days.

The quayside of the west float was nearly 50 yards out of the man's proper course. The widow
brought this action under the Fatal Accidents Act, 1846 against the appellants for damages for
the husband's death.

The majority of the House of Lords (three to two) held, reversing the Court of Appeal's decision,
that, in the circumstances, the failure of the appellants to keep the chain in position was not a
breach of any duty owed by them to the deceased and that the action must fail.
It is clear also therefore that an invitation may be limited as to place and as to time. So that
customers may not be considered as invited after the shutters have been let down.

3. LICENSEES

Licensees are entrants with permission to enter for their own purposes, as distinct from mutual
interest, or where there was mutual interest, it is not of a business or material nature. So a
licensee is a person on premises with the permission of the occupier given as a matter of grace
and not as a matter of business and the law ignores the worldly advantages which the licensor
may have in mind.

Mersey Docks and Harbour Board vs Proctor:

Lord Sumner summed up the position neatly thus:

a licensee takes premises which he is merely permitted to enter as he finds them. The one
exception to this is that the occupier must not lay a trap for him or expose him to a danger not
obvious nor to be expected there under the circumstances. If the danger is obvious, the licensee
must look out for himself.

As is usual in cases of duties of care, the reasonable man is the standard on both sides. The
licensor must act with reasonable diligence to prevent his premises from misleading or
entrapping a licensee....

The licensee is to take reasonable care of himself and cannot call a thing a trap, the existence of
which a reasonable man would have expected or suspected, so as to guard himself from falling
into it."

The duty of the occupier then is to warn the licensee of concealed dangers actually known to him
and not known to the licensee or obvious to him or to be suspected to be where it is. So, unless
there is a hidden trap or terror, there is no duty. If the danger is obvious, the licensee will fail
because no duty of care is owed him. If a reasonable man using reasonable care would have seen
it, then it is an obvious danger.
Fairman vs Perpetual Investment Building:

In this case, the plaintiff lodged in a flat, let out by the defendants, with her sister, on the fourth
floor of which her sister's husband was tenant. While descending the stairs, she caught her heel in
a depression, fell and was injured. In an action against the defendants for damages, the trial judge
found that:

1. the defendants were not guilty of negligence;

2. the state of the staircase was not dangerous at the time of the accident;

3. the depression which caused the plaintiff to fall was not in the nature of a concealed danger or
trap, but was obvious and could have been seen by the plaintiff, if she had looked.

On appeal, the House of Lords held that the only duty owed by the defendants to the plaintiff
was not to expose her to a concealed danger or trap and that the action failed because, on the
facts as found, this particular danger was obvious.

If a danger is not known to an occupier then no duty is owed by him.

Morgan vs Girls' Society:

the plaintiff, on his way to visit the tenants of offices in a building owned by the defendants, saw
the lift door partially open and, thinking the lift was there, stepped through the door, fell down
the shaft and was injured. In an action against the defendants for damages, the defendants argued
that they had contracted with independent contractors to keep the lift in good working order and
that they did not know and could not reasonably be expected to have known that the lift was out
of order. It was held that the plaintiff was a licensee, the negligence was that of the independent
contractors and that there was no trap of which the defendants knew or ought to have known. So,
judgment was given for the defendants.

Once permission has been given to people to use the premises, the occupier has to warn them of
new dangers created by him.

Lowery vs Walker:

the defendant did not prevent members of the public from crossing his field on the way to the
railway station, but put a horse which, to his knowledge, was savage in that field and it attacked
and injured the plaintiff, as he was making his way across it. It was held that the plaintiff who
was not a trespasser, was entitled to damages.

UNLAWFUL VISITORS

Trespasser

A trespasser is one who enters the land and has neither the right nor permission to be there. His
presence is unknown, and, if known, is practically rejected by the occupier. The law on trespass
was governed by Addie's case until 1972. According to Lord Dunedin in Addie's case, the term
covers the wicked and the innocent; the burglar; the arrogant invader of another's land; the
walker blindly unaware that he is walking where he has no right to walk; or the wandering child.
Let us look at the pre-Addie line of cases.

The law before the decision in Addie's case was that neither the occupier nor his servants should
inflict intentional injuries on a trespasser. The steps taken by the occupier towards the trespasser
must be reasonable.

Bird vs Holdbrook:
 the defendant set a spring gun in his garden with a view to protecting his tulips "of the choicest
and most expensive description", some of which had recently been stolen. When the plaintiff
entered the garden for the innocent purpose of recovering a pea-hen which had strayed there, he
set off the gun and received severe injuries as a result. It was held that, although he was a
trespasser, the plaintiff was entitled to damages as the defendant had not displayed notices
warning of the presence of the guns."

Generally, however, a trespasser enters premises at his own risk, except, as aforesaid, deliberate
harm is not to be caused to him. However if the trespasser's presence is known, the occupier
must refrain from doing anything with reckless disregard of his presence.

Excelsior Wire Rope Co. vs Callan:

Here a company, having works near a railway, under a licence from an adjoining landowner,
constructed a siding on the land and erected a post on it to which a pulley block called sheave
was attached. The siding adjoined some fields which were let to the local authority as
playground. The fence between the siding and fields had disappeared and, to the knowledge of
the company, children frequented the siding and played around the sheave without interruption
except when the haulage machinery was about to be put into motion, which occurred about three
times a week.

On one occasion, when haulage machinery was about to be moved, two of the company's
employees went to the sheave to see that the rope was properly adjusted and to drive away
children as was customary.

When the men went back to start the machine, a little girl, aged five, was seen swinging on the
rope and the movement of the rope caused her hands to be caught in the pulley and crushed. Her
brother, aged nine, was similarly injured, while coming to her rescue. In an action by their father
against the company for injuries sustained by the children, it was held that, since the company
was aware that the children were likely to be in the area, they had failed in their duty not to
expose the children to the danger and, the danger being apparent, it was not material whether the
children were trespassers or not. The company was liable.

The occupier is also not to create new dangers without warning.

Mourton vs Poulter:
the defendant felled a large elm tree which was growing on land on which children, who were
trespassers, were playing at the material time and it fell on and injured the plaintiff, a ten year old
boy.

The plaintiff was held entitled to damages as the defendant had committed a breach of the duty
that he owed even to a trespasser not to do any act, which would alter the condition of the land
and might injure him without giving him a warning once his or her presence on the occupier's
land is known to the occupier. However, to make the occupier liable, there must be some act
done with the deliberate intention of doing harm to the trespasser, or at least some act done with
reckless disregard of the presence of the trespassers.

Addie vs Dumbreck.

In this case, a four year old boy was crushed to death in the terminal wheel of a haulage system
belonging to a colliery company. The haulage system was on some field which was insufficiently
fenced to keep out the public. The wheel was dangerous but attractive to children who played in
the vicinity. The accident occurred because the wheel had been set in motion by the company's
servants without any measures to avoid accident to persons who frequented the place. The boy
had been warned off the area by his father.

In an action for damages by the father against the company, it was held that the boy was a
trespasser and went on to the company's premises at his own risk, and that the company owed
him no duty to protect him from injury. The company could therefore not be in breach of a non-
existent duty. Thus Addie's case established the principle that, generally speaking, no duty is
owed to the trespasser.

Dissatisfaction with what was felt to be the harsh rule laid down in Addie led to a number of
avoidance techniques:

1.distinction between occupancy and activity duty

2. making independent contractors liable to persons injured on another's land;

3. the concept of allurements or attractions where children were concerned; and

4. recognising a licence more liberally. Eventually, these techniques left the law in a mess and
great need of reform.

Herrington vs British Railway Board:

A six year old child was playing on a field close to a railway track which had been electrified. He
trespassed on to the line through a broken fence and was, though saved from death, severely
injured. He brought this action for damages against the defendants who, on the authority of
Addie's case, denied any liability.

The trial judge found for the plaintiff and the defendants appealed. The appeal was dismissed. In
dismissing the arguments of the defendants, the trial judge was deliberately flouting the decision
in Addie's case in the hope that the defendants would appeal and the appeal would offer the
higher courts the opportunity to reform the law. A further appeal by the defendants to the House
of Lords offered the chance he had hoped for. The law lords, in dismissing the appeal, developed
the duty of common humanity. This duty is fully explained in the opinions of Lord Reid,
Wilberforce and Diplock, especially the following extracts: Lord Reid:

it appears to me that an occupier's duty to trespassers must vary according to his knowledge,
ability and resources.

the question whether an occupier is liable in respect of an accident to a trespasser on his land
would depend on whether a conscientious humane man with his knowledge, skill and resources
could reasonably have been expected to have done, or, refrained from doing before the accident,
something which would have avoided it. If he knew before the accident that there was a
substantial probability that trespassers would come, I think that most people would regard as
culpable failure to give any thought to their presence.

He might often reasonably think, weighing the seriousness of the danger and the degree of
likelihood of trespassers coming against the burden he would have to incur in preventing their
entry or making his premises safe, or curtailing his activities on his land, that he could not fairly
be expected to do anything. But if he could at small trouble and expense take some effective
action, again, I think that most people would think it inhumane and culpable not do that." Lord
Wilberforce quoting Windeyer J. in Cardy with approval said:

"The trespasser in his relation to the occupier, thus, really stands outside the law of negligence,
for to him, considered simply as an entrant upon the land, the occupier has no duty of care.

Such a duty may, however, arise from some circumstances beyond the mere facts of entry, as for
example, from the occupier's knowledge of the trespasser's presence and of his proximity to
dangerous operations. It arises, not as a duty to him as a trespasser, but to him as an individual
whose relation to the occupier has become that of a 'neighbour'.

No man has a duty to make his land safe for trespassers. But, if he has made it dangerous and the
danger he has created is not apparent, he may have a duty to warn people who might come there
of the danger of doing so. Whether there be such a duty in a particular case must depend upon
the circumstances, including the likelihood of people coming there. But if they would be likely to
come, the duty does not, in my view, disappear, because in coming they would be trespassing. It
is a duty owed to likely comers, to those who would be intruders as well as those who would be
welcome." Summarising the occupier's duty of common humanity to trespasser, Lord Diplock

said:

1. The duty does not arise until the occupier has actual knowledge either of the presence of the
trespasser upon his land or of facts which make it likely that the trespasser will come on to his
land; and has also actual knowledge of facts as to the condition of his land or activities carried
upon it, which are likely to cause personal injury to a trespasser who is unaware of the danger.
He is under no duty to the trespasser to make any inquiry or inspection to ascertain whether or
not such facts do exist. His liability does not arise until he actually knows of them.

2. Once the occupier has actual knowledge of such facts, his own failure to appreciate the
likelihood of the trespasser's presence or the risk to him involved, does not absolve the occupier
from his duty to the trespasser if a reasonable man possessed of the actual knowledge of the
occupier would recognize that likelihood and that risk.

3. The duty when it arises is limited to taking reasonable steps to enable the trespasser to avoid
the danger. Where the likely trespasser is a child too young to understand or heed a written or a
previous oral warning, this may involve providing reasonable physical obstacles to keep the child
away from the danger.

4. The relevant likelihood to be considered is of the trespasser's presence at the actual time and
place of danger to him. The degree of likelihood needed to give rise to the duty cannot, I think,
be more closely defined than as being such as would impel a man of ordinary humane feelings to
take some steps to mitigate the risk of injury to the trespasser to which the particular danger
exposes him. It will thus depend on all the circumstances of the case; the permanent or
intermittent character of the danger: the severity of the injuries which it is likely to cause; in the
case of children, the attractiveness to them of that which constitutes the dangerous object or
condition of the land; the expense involved in giving effective warning of it to the kind of
trespasser likely to be injured, in relation to the occupier's resources in money or in labour."

The degree of likelihood of the trespasser's presence on the land appears not governed by
ordinary principles of foreseeability.

In Herrington vs British Railways Board:

The House of Lords spoke of substantial probability of trespasser's presence.

THE TEST OF COMMON HUMANITY

1. The duty of common humanity combines an objective and a subjective test. Objective because
it is measured by the conduct of the reasonable man. But subjective because this measure is only
by reference to the knowledge of the particular occupier

2. The content of the occupier's duty, that is the level of precautions expected of him also
embcdies subjective considerations. The occupier's duty varies according to his knowledge,
ability and resources because trespassers force a relationship of "proximity" or "neighbourhood"
on the occupier. Thus a trespasser should expect an impoverished occupier to take fewer
precautions than a wealthy one.
3. One important point to keep in mind is that the rule in Addie has not been jettisoned by these
more recent and less harsh rules. It is still the law that an occupier does not normally owe a
trespasser a duty of care. The recent developments have merely modified the Addie rule to
accommodate or take account of situations where the occupier becomes aware of the presence of
the Trespasser or the real likelihood of that presence. The duty of common humanity strictly
therefore is not entry related but arises from knowledge of the presence or is presence-related.
This is unlike the duty to lawful visitors which is entry related.

The operation of the test of humanity used by the House of Lords for determining the liability of
the occupier towards trespassers in the light of present social conditions in Herrington vs British
Railways Bd,.can be seen in the case of

Pannett vs McGuiness & Company.

Here, demolition contractors were occupiers of a site in a busy urban area where large numbers
of children were to be expected. At the completion of the demolition, it became necessary to
burn a quantity of rubbish on the site. The defendants realized that this activity would be an
attraction to children and so employed three workmen to keep the children away. The latter had
chased children, including the plaintiff, a child of five, away on several occasions. One
afternoon, the three men absented themselves from the site at a time when a fire was burning and
during this period, the plaintiff entered the site and was burned.

The Court of Appeal, in holding the defendants liable, stressed the hazardous nature of the
activity and its attraction to children, together with the substantial likelihood of trespass. In these
circumstances, the occupier's duty went beyond merely chasing the children away and the
defendants were therefore vicariously liable for the default of their men in absenting themselves
from the site.

This decision is obviously in line with the duty of common humanity. The defendants employed
the men to keep the children away from the fire because they recognized the need. But, having
employed the men, is it fair to expect them to take additional steps to ensure that the men were
never absent while the fire was burning? Should the fact that the defendants were not aware, on
that day, that their men were absent matter in determining their liability? Is the employment of
the vicarious liability principle to circumvent the defendants' lack of knowledge that their men
were absent fair, reasonable and just to them? It is submitted that the decision may have been
different if the plaintiff were not a child.
CHAPTER 24

NEGLIGENCE IN RELATION TO CHATTELS'

At first, the law concerned itself with negligence in relation to chattels dangerous in themselves.
Thus in Dixon v. Bell, it was held that a master who entrusted a loaded gun to a young servant
was liable to a third party injured by the servant's firing of the gun, on the ground that the chattel
was in a state capable of doing mischief. But then no firm rule was made.

So, when in Langridge vs Levy:

the defendant sold a gun, having a concealed defect in it, to the father of the young plaintiff, and
the plaintiff was injured in consequence of the defect in the weapon, the court was invited to
deduce from Dixon vs Bell the principle that there was liability for putting into circulation things
of a dangerous nature, the court refused. However, it found for the plaintiff on the ground of
fraud of the defendant in misrepresenting the facts relating to the gun. Still, it is fair to note that,
at one time, the classification of a chattel as dangerous or not was important for this type of
negligence.

In the course of time, attempts were made to modernise the law as far as dangerous chattels were
concerned.

Heaven vs Pender:

Here the plaintiff, an employee of an independent contractor engaged by the defendant, was
painting a ship in the defendant's dock, when he was injured because a rope supplied by the
defendant, slinging the staging on which he was standing, was defective. There was evidence of
failure by the defendant to take care, but it was not found that he knew of the defect. It was held
that, just as he would be liable as invitor had he remained in control of the dock, by analogy with
that rule, he would be liable for appliances supplied for immediate use in his dock, although he
handed over control of the dock to the plaintiff's employer, there was a duty to take care in
respect of dangers of which the defendant ought to be aware. Lord Justice Cotton summed up the
situation neatly thus:"
"Anyone who without due warning supplies to others for use an instrument or thing which to his
knowledge, from its construction or otherwise, is in such a condition as to cause danger negligent
act." is liable for injury caused to others by reason of his

Dominion Natural Gas Co. vs Collins:

the plaintiff was injured by an explosion of gas apparatus negligently installed by the defendants,
and he was held to be entitled to recover. The court, per Lord Denning, advised:

"what that duty (of care) is will vary according to the subject-matter of the things involved. It
has, however, again and again, been held that, in the case of articles dangerous in themselves,
such as loaded firearms, poison, explosives and other things "ejusdem generis", there is a
peculiar duty to take precaution imposed upon those who send forth or install such articles when
it is necessarily the case that other parties will come within their proximity."

From the cases therefore, before 1932, the following general principles emerged:

1. in the case of articles dangerous in themselves there is a duty on those who distribute them to
take the necessary precaution.

2. It is also clear that there is liability on those who send forth those things.

3. The duty is owed to the immediate transferee as well as to any other person into whose hands
the article falls, provided that due notice is not given.

The phrase "chattels dangerous in themselves" has been applied to loaded guns, gas, poison etc.
Though there is no such declared class, the essential point is that certain things require more care
and the courts will recognise a duty of care accordingly. In respect of cases involving things not
dangerous per se, a duty is imposed if:

1. there is a contractual relationship between the seller and the user of the article; and
2. if the defect is known to the seller and he does not disclose it to the purchaser. In such a case,
the duty is to an immediate transferee only.

Donoghue vs Stevenson:

In this case a shop assistant, the appellant, drank some ginger-beer which had been manufactured
by the respondents. The ginger-beer which was in a dark, opaque bottle had been sold by the
respondents to a retailer who in turn sold the drink for consumption by the appellant. The drink
was bought for the appellant by a friend.

As a second glassful was being poured out for her, the appellant noticed a decomposed snail float
out of the bottle.

She became seriously ill and claimed damages for negligence. It was held that the respondents
owed the appellant a legal duty to take care that the bottle did not contain noxious matter and
they would be liable to her if that legal duty was broken, as the manufacturer of an article of
food, medicine or the like, sold by him to a distributor in circumstances which prevent the
distributor or the ultimate purchaser or consumer from discovery, by inspection, of any defect, is
under a legal duty to the ultimate consumer to take reasonable care that the article is free from
defects likely to cause injury to health. Lord Atkin developed the law thus:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems
to be - persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the acts or omissions
which are called in question."

And so, from this case, we have the modern products liability principle which states that: "... a
manufacturer of products, which he sells in such a form as to show that he Intends them to reach
the ultimate consumer in the form in which they left him with no reasonable possibility of
intermediate examination and with the knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in an injury to the consumer's life or
property, owes a duty to the consumer to take that reasonable care."

The courts have not been content to keep within this rule and the words emphasised above have
been extended in later cases. For the subsequent development of this liability principle therefore,
we turn to the expansion of the principle through the extension of the these words.
MANUFACTURER

The cases have held that manufacturer includes producers, repairers, masons, assemblers and
even suppliers of articles, provided that these suppliers have done some work on the article
supplied. Thus, in Brown v. Cotterill, the defendant, a monumental mason, negligently erected a
tombstone, as a result of which it fell on the plaintiff who was lawfully in the churchyard. He
was held liable in negligence, applying the principles in Donoghue vs Stevenson, thus making a
mason a manufacturer. The term will not apply to retailers except second hand car dealers.

PRODUCT

The product in Donoghue vs Stevenson itself was an article of food to be taken internally, but
this does not affect the extent to which the principle applies.

In Grant vs Australian Knitting Mills Limited

the plaintiff bought some "golden fleece" woollen underwear and contracted dermatitis, because
the garment contained excess sulphite which, it was found, had been negligently left in it in the
process of manufacture. The defect could not have been detected by reasonable examination. It
was held that the plaintiff could recover damages in contract from the retailers for breach of an
implied warranty or condition under the Australian legislative equivalent to section 14 of the
English Sale of Goods Act, 1893 and that the manufacturers were liable in tort as they were in
breach of their duty of care.. From this case, it is clear that the product, to which the principle
would be applied, could involve things taken internally or externally or merely for other use e.g.
vehicles or buildings. Thus product means any item capable of causing damage, e.g. hair dye,
lifts, underpants.

SALE

Going strictly by Lord Atkin's formulation in Donoghue v. Stevenson, it might be argued that the
principle should apply only if the product was the subject of a sale transaction. But there seems
to be no difference between a sale and a supply of free samples. Certainly, this was the point
made by Lord Denning in

Hawkins vs Couldson & Purley UCD:

In this case, the plaintiff, a licensee, fell, while descending the steps of a house in the possession
of the defendants and suffered injuries. The defective condition of one of the steps combined
with the insufficiency of light, amounted to a concealed danger. The physical facts which
constituted the danger were known to the defendants, through their officials, but they did not
appreciate the risk involved. Applying the objective test, the judge found that a reasonable man
would have appreciated the danger and held the defendants liable in negligence.

On appeal, it was held that the judge had applied the proper test and rightly found against the
defendants. In the course of his judgment, Lord Denning expressed the view that, whether the
goods are supplied through sale or gift of samples, the manufacturers will be liable in negligence,
if injury results. He said further that, if hospital authorities treat a patient negligently, they should
be liable even though the services were rendered gratuitously. So also when a driver gives a
friend a lift.

In Lord Denning's own words in Hawkins vs Coulsdon & Purley U.D.C.:

"Suppose that the manufacturer of a special soap sends out samples by way of gift to members of
the public, and owing to negligence in manufacture, a user of the soap suffers from dermatitis.
Surely there is a cause of action, even though the manufacturers did not actually know of its evil
character at the time. Again, suppose that hospital authorities treat a patient negligently, they are
liable, even though they give their services gratuitously. If they give him food which through
their carelessness has been mixed with some injurious ingredient, are they not also liable even
though they did not know of its injurious character. There is no difference in principle between
such a case and the case where the driver of a car gives a friend a lift."

ULTIMATE CONSUMER

The consumer in Donoghue vs Stevenson was the ultimate user of that chattel. The term covers
any user, whether known or unknown, to the manufacturer, i.e. any one foreseeably harmed by
the "defective" product. In the case of Stennet v. Hancock," the term was extended to include a
bystander.i.c. a pedestrian In that case, the defendant garage owner negligently reassembled the
flange on the wheel of X's lorry. When, later, X was driving the lorry on the highway, the flange
came off the lorry, mounted the pavement, and injured the plaintiff, a pedestrian. Following
Donoghue v Stevenson, the defendant was held liable for his negligent repair. Thus the trend is
to extend the term to cover any one foreseeably harmed by the "defective" product.

No reasonable possibility OF INTERMEDIATE EXAMINATION

In Donoghue vs Stevenson, the drink was in an opaque bottle. So the appellant could not see the
"defect". If the plaintiff knows of the defect and still uses the chattel, then, this may affect the
liability of the manufacturer. If the consumer detects the defect but uses the product, the
manufacturer may not necessarily be absolved completely of liability; the consumer might be
held to be contributorily negligent.

The test therefore is not whether intermediate inspection is possible, but whether the
manufacturer contemplated that any defect in the goods will remain there at the time of their use
by the plaintiff, despite their passing through many intermediaries. The question, in other words,
is whether the manufacturer contemplated intermediate examination of the product before its use.
So it was held in

Dransfield vs British Insulated Cables’

The plaintiff was the widow of the deceased who was employed by Bournemouth Corporation,
who was killed by the breaking of a bull-ring, when knocked from a wagon. The defendants,
were manufacturers of the bull ring which was used by Bournemouth Corporation.

The plaintiff brought this action alleging that the breaking of the bull-ring was due to the
negligence of the defendants in the course of welding it for the purpose for which it was used.
The defendants denied negligence and also argued that they were under no duty to the deceased
with whom they had no contractual relations. It was held that, although the defendants were
negligent in the manufacture of the ring and that negligence caused the accident, the defendants,
as manufacturers, were not liable in damages to the plaintiff because there was a reasonable
possibility of intermediate examination by the Bournemouth Corporation, which would have
disclosed the defect in the manufacture of the ring.
Points to note:

1. The essential factor is that the consumer must use the product exactly as it left the
manufacturer. And use it as it is intended to be used.

2. The mere opportunity for inspection after it has left the manufacturer will not be enough Did
the manufacturer expect the defect to remain in the product at the point of use?.

3. If the manufacturer gives a warning or instructions relating to use of the product (e.g. test
before use) this may be sufficient discharge of the duty.

4. If the consumer misuses the product in an unfashionable way, the manufacturer will not be
liable: See Aswan vs Lupdine, e.g. using a biro pen to open a milk tin!

WANT OF REASONABLE CARE

The House of Lords in Donoghue vs Stevenson was not called upon to find out who was
negligent and at what stage in the preparation of the product. But Lord Macmillan, in his
judgment, said that the burden of proof lay on the plaintiff and that, in such a case, there was no
room for the application of the maxim res ipsa loquitur.

With this may be compared the position in Grant vs Australian Knitting Mills," where the rule
was applied and it was not expected that the plaintiff would single out the person who was
negligent. It was left to the court to presume negligence from all the circumstances.

In Ghana, res ipsa loquitur will apply.

In Aboagye vs Kumasi Brewery Limited:

the plaintiff, while drinking with some friends, found a rotten palm-nut in the beer bottle after he
had drank about three-quarters of the contents of the bottle. He said that he felt funny after seeing
the rotten nut and felt sick. In the night, he was actually sick and had frequent stools. He was
examined in the morning by a doctor who stated that the vomiting and the diarrhoea were caused
by food poisoning. In an action for negligence by the plaintiff, the defendants denied that the
beer contained any nut at all or that they had been negligent. The court had to decide three
questions, namely:

(1) was there nut in the beer:

(2) was this caused by negligence of the defendant; and

(3) did the plaintiff become sick as a result of drinking the beer? The court answered all three
questions in the affirmative and judgment was given in favour of the plaintiff. He was awarded
250 cedis general damages for pain and suffering.

Overseas Breweries Ltd. vs Acheampong:

Here, the plaintiff, who described himself as a "practiced beer drinker", drank Club beer which
was contaminated with kerosene. The trial judge found as a fact that the system adopted by the
manufacturer was thorough and carefully devised. The defendants denied negligence. The court
nevertheless held that the fact that kerosene was found in the beer showed negligence on the part
of someone in the defendants' establishment in spite of their thorough system of cleaning. The
plaintiff was awarded damages of $800 for pain and suffering.

Clearly, therefore, under Ghanaian law, the maxim res ipsa loquitur may operate to create a
presumption of negligence in appropriate circumstances.

We may compare these two Ghanaian cases with Daniels & Daniels vs White :

where the manufacturers of lemonade which contained carbolic acid were excused on proof that
their method of filling and cleaning the bottles was foolproof. Is this a fair result? In this case,
the plaintiff (husband and wife) sued the manufacturers and the retailer of a bottle of lemonade
(R. White's Lemonade) for injuries received because the bottle contained 38 grams of carbolic
acid.

Both plaintiffs relied on Donoghue vs Stevenson in the action against the manufacturer. The
carbolic acid was used in washing the bottles. The male plaintiff also sued the retailer relying on
the Sale of Goods Act for a breach of an implied warranty relating to the quality (merchantable
quality) because this was a sale by description.
The action under Donoghue vs Stevenson failed. The judge was of the view that the duty owed
by a manufacturer to the consumer was not to ensure that the product was perfect (that is not
strict), but merely to take reasonable care to see that no injury was done to the consumer and
that, on the evidence, this duty had been completely fulfilled. The male plaintiff, however,
succeeded on the attack by way of the Sale of Goods Act against the retailer.

PREPARATION or PUTTING UP

The manufacturer's liability principle is based on control of the production process of the product
by the manufacturer, according to Lord Macmillan in Donoghue vs Stevenson. Donoghue's case
thus covers such negligent acts as occur in the actual manufacture of the products. But, as Street
points out in his book," a defect may be in the design or in the container or even in the labeling
or packaging of the product; in such circumstances, the principle ought to apply.

(1) It would include dispensers of medication in hospitals- labelling, mixing, diluting

concentrates etc.

(2) Re-bagging rice, sugar into smaller bags. In other words, these activities should constitute
"manufacturing" for purposes of the principle. The principle was also extended to distributors
who might be expected to test the product.

LIFE OR PROPERTY

Finally, the injury must be to the consumer's life or property. In 1932, when this principle was
developed, it could not go beyond the life or property of the consumer. Even as late as 1947 the
courts would not extend the principle. One case will illustrate this unwillinguess.

In Candler vs Crane Christmas”

the defendants, a firm of accountants and auditors were negligent but not fraudulent in preparing
the accounts of a certain company. Relying on the accuracy of the accountants, the plaintiff
subscribed £2000 for shares. The company went into liquidation and plaintiff lost his money.
He sued the defendant for damages for negligence or breach of their duty to give accurate
information. It was held that in the absence of a contractual or fiduciary relationship between the
parties, the plaintiff's action would fail, as defendants owed him no duty. But thanks to Hedley
Byrne vs Heller & Partners, the principle now covers economic loss.

The liability excludes the defective product itself. Can a chattel be divided into component parts?
Example wine bottle; wine and cork? Why not; each in itself is a product.

Chapter 25

LIABILITY FOR MISSTATEMENTS

Liability for misstatements arises in three main ways:

1. Deceit;

2. negligent misstatement

3. defamation.

In this chapter, we shall discuss the first two.

1. DECEIT
To succeed in deceit, the plaintiff must be able to establish fraud in the maker of the statement,
that is the tort of deceit is committed by one who makes a fraudulent misrepresentation to
another who acts upon it to his detriment.

Fraud, for the purposes of this tort was defined in

Derry vs Peek

as a false representation which is made without any belief in its truth, or, recklessly careless
whether it be true or false. Once fraud is proved, the defendant's motive is irrelevant.

In addition, there must be a representation of fact made with the intention that it be relied upon;
and the plaintiff must actually have relied upon the statement. The statement of fact may be:

(1) oral

(2) written or

(3) intended from conduct.

Generally, silence gives no cause of action. But where a person is under a legal obligation to
speak and he deliberately refuses, he is guilty of fraud.

Where the statement is made to a limited class, then, there is no liability to those outside the
class. The person making the statement must have made the statement with knowledge that it is
false. This tort, distinguishes the careless man from the dishonest one. This tort seeks to catch
only the dishonest men. In other words, the careless person may be liable in negligence; but the
dishonest one will be liable in deceit.

In Arthur vs Basil:
it was held that a careless statement which is not dishonest will not found an action in tort.

Le Lievre vs Gould:

shows that the tort addresses intention to deceive.

DECEIT

The ingredients of the tort of Deceit [see Annan J. in Kusi vs Kusi and Jackson L.J. in Eco
Capital Ltd. vs Ludsin Overseas Ltd., are 5, namely:

1. The defendant makes a false or fraudulent representation to the claimant; . The defendant
knows that the representation is false, alternatively, he is reckless as to whether it is true or false;

2. The defendant intends that the claimant should act in reliance on the false representation;

3. The claimant does act in reliance on the representation; and

4. As a consequence, the claimant suffers loss.

Let us proceed to examine these constituent elements.

(1) The defendant must make a fraudulent representation

A statement of future intention is actionable if, at the time of making it, the defendant did not
have that intention and there is sufficient factual content in the representation, that is that at the
time of making the statement he did have that intention. Similarly, a statement of opinion is at
least a representation that the defendant actually holds that opinion, example:

West London Commercial Bank Limited vs Kitson:

where a representation about the effect of a private Act of Parliament was held to be actionable
in deceit; however, it is not clear whether this will apply to the general law.

There is liability for stating half-truths, ambiguities and actions taken to conceal the truth,
example.

Schneider vs Heath:

where the defendant took steps to hide from a prospective buyer the fact that his ship had rotten
timber, he was held liable in the tort of deceit. Further, if you are aware that events subsequent to
the making of a statement make it no longer true or you make a statement and discover its falsity
later and you fail to correct it, you are liable. This is different from the situation where you make
an accurate statement of future intention and you change your mind afterwards. Where a servant
commits deceit in the course of his employment, his master is vicariously liable. There is also
liability where a principal makes a fraudulent representation through an innocent agent.

NB: It is no answer to the claim for the defendant to say he did not intend to deceive the
claimant.

(2.) The representation need not be made to the plaintiff e.g. Langridge vs Levy, But where the
representation is made to a limited class, then there is no liability to those outside that class:

Peek vs Gurney:

where it was held that statements in a prospectus issued by the defendant were intended by him
to be acted upon only by those who acquired shares by subscription from the company (to whom
the prospectus would have been issued) and not by subsequent purchasers of the shares on the
market. There, the fact that it is foreseeable that plaintiff would rely on the statement is not
enough.

(3. The plaintiff must rely on the statement

It must be proved that the representation was at least one of the reasons for the plaintiff acting as
he did:

Smith vs Chadwick

Here the plaintiff bought shares in a company on the faith of a prospectus which contained the
untrue statement that a certain person was a director of the company. The plaintiff had never
heard of this person; he could therefore not convince the court that he relied on the statement in
the prospectus. And so his action failed.

(4. The Plaintiff must suffer damage

Normally a claim in deceit is for pecuniary or economic loss, but personal injury and property
damage are recoverable.

The tort came up in the case of

Kusi vs Kusi:

In that case, the defendant was a licensed gold-smith. The plaintiff lent some money to the
defendant. The defendant offered several farms and an uncompleted house as security for the
loan. The defendant defaulted in paying back the loan. The plaintiff exercised his right of sale of
the properties.

Later, the defendant's family sued the plaintiff and set aside the sale of the properties on the
ground that the properties offered by the defendant as security for the loan were family
properties.
The plaintiff then sued the defendant for deceit saying that though the defendant knew of the
family character of the properties, yet he fraudulently offered them as his own to secure the loan.
Addressing the tort of deceit, the trial judge, said:

"The action is in tort for damages for deceit as well as for the unpaid balance of the loan. To
sustain the tort the plaintiff will have to prove not only that the defendant made representations
as to existing facts which were false to his knowledge but also that he intended that the plaintiff
should act on the false representations and be deceived by them.

There must be proved an actual intention to deceive the plaintiff. Then the plaintiff must go on to
establish that he was influenced by the misrepresentation, to his detriment. What is required is
proof that he suffered damage as a result of the misrepresentation: that is, that the one event
caused the other and that he relied upon the truth of the representation.

Clearly if the plaintiff knew that the representation was false, and a fortiori where had himself
induced the making of the representation or had acted in concert with the defendant to defraud a
third party, the plaintiff cannot succeed since he was not deceived and did not in any case rely on
the representation. Again there must be damage to the plaintiff and this must be proved to be the
consequence of his acting on the representation."

On the basis of the law espoused above and the facts found by the court from the evidence that
was adduced before it, the learned judge concluded that the plaintiff had made out the tort.
Judgment was therefore given in favour of the plaintiff.

5. REMEDIES

Invariably an action for damages, as approved by the House of Lords example Doyle vs Olby
(Ironmongers) Ltd." As Lord Blackburn said in Livingston vs Rawyards Coal Co. and Lord
Browne-Wilkinson summarised in Smith New Court Securities vs Citibank :

in my judgment the following principles apply in assessing the damages payable where the
plaintiff has been induced by a fraudulent misrepresentation to buy property:
 (1) the defendant is bound to make reparation for all the damage directly flowing from the
transaction;

(2) although such damage need not have been foreseeable, it must have been directly caused by
the transaction;

(3) in assessing such damage, the plaintiff is entitled to recover by way of damages the full price
paid by him, but he must give credit for any benefits which he has received as a result of the
transaction;

(4) as a general rule, the benefits received by him include the market value of the property
acquired as at the date of acquisition; but such general rule is not to be inflexibly applied where
to do so would prevent him obtaining full compensation for the wrong suffered;

(5) although the circumstances in which the general rule should not apply cannot be
comprehensively stated, it will not apply where either (a) the misrepresentation has continued to
operate after the date of the acquisition of the asset so as to induce the plaintiff to retain the asset
or (b) the circumstances of the case are such that the plaintiff is, by reason of the fraud, locked
into the property.

(6) In addition, the plaintiff is entitled to recover consequential losses caused by the transaction;

(7) the plaintiff must take all reasonable steps to mitigate his loss once he has discovered the
fraud."

NEGLIGENT MISSTATEMENT

Before Hedley Byrne vs Heller & Partners, there was only a duty to be honest. There was, in
general, no duty to be careful in making a statement. Pre-1964 law was that a person who
negligently made a false statement is not liable to one who relies on it to his detriment and
suffers damage thereby, except where there is a contract or fiduciary relationship or fraud.

This was confirmed in the majority decision in Candler vs Crane Christmas.

The courts were reluctant to recognize liability for negligent statements because it was thought,
that to some extent, different considerations applied to words than acts.

But the reluctance to recognise a duty of care in the maker of a statement on which another relies
and suffers a foreseeable loss seemed to have been rooted in other considerations as well:

(1.) the statement may be made without any intention that it be relied upon;

(2. the loss might be considered as more remote because it usually arises from the fact that
plaintiff relied on the statement rather than from the statement itself; and

(3. finally the fear of excessive liability; that is to say the courts were afraid that the financial
burden on the defendant might be too much were he to be held liable for all the foreseeable loss
arising from a negligent statement.

(4.) Then, in 1964, in Hedley Byrne vs Heller:

It was held that a duty of care in making non-negligent statements would be imposed whenever a
special relationship exists between the parties and responsibility is not disclaimed as in Hedley.
Suffice it to reproduce here the opinion of Lord Reid since the other Law Lords spoke in similar
vein. Lord Reid:

"I cannot do better than adopt the following statement of the case from the judgment of McNair,
J.
This case raised certain interesting questions of law as to the liability of bankers giving
references as to the credit-worthiness of their customers. The [appellants] are a firm of
advertising agents. The [respondents] are merchant bankers. The appellants'case against the
respondents is that, having placed on behalf of a client, Easipower, Ltd. on credit terms
substantial orders for advertising time on television programmes and for advertising space in
certain newspapers on terms under which they, the [appellants], became personally liable to the
television and newspaper companies, they caused inquiries to be made through their own bank of
the [respondents] as to the credit-worthiness of Easipower, Ltd., who were customers of the
[respondents] and were given by the [respondents] satisfactory references.

These references turned out not to be justified, and the [appellants] claim that in reliance on the
references, which they had no reason to question, they refrained from canceling the orders so as
to relieve themselves of their current liabilities."

The appellants now seek to recover this loss from the respondents as damages on the ground that
these replies were given negligently and in breach of the respondents' duty to exercise care in
giving them.

In his judgment McNair, J. said:"

"On the assumption stated above as to the existence of the duty, I have no hesitation in holding:

(1) that Mr. Heller was guilty of negligence in giving such a reference without making plain as
he did not that it was intended to be a very guarded reference, and

(2) that properly understood according to its ordinary and natural meaning the reference was not
justified by facts known to Mr. Heller."
Before your Lordships the respondents were anxious to contest this finding, but your Lordships
found it unnecessary to hear argument on this matter being of opinion that the appeal must fail
even if Mr. Heller was negligent.

Accordingly I cannot and do not express any opinion on the question whether Mr. Heller was in
fact negligent. But I should make it plain that the appellants' complaint is not that Mr. Heller
gave his reply without adequate knowledge of the position, nor that he intended to create a false
impression, but that what he said was in fact calculated to create a false impression and that he
ought to have realised that. The same applies to the respondents' letter of November 11.

MCNAIR J. gave judgment for the respondents on the ground that they owed no duty of care to
the appellants. He said:

'I am accordingly driven to the conclusion by authority binding upon me that no such action lies
in the absence of contract or fiduciary relationship. On the facts before me there is clearly no
contract, nor can I find a fiduciary relationship. It was urged on behalf of the [appellants] that the
facts that Easipower, Ltd. were heavily indebted to the [respondents] and that the [respondents]
might benefit from the advertising campaign financed by the [appellants], were facts from which
a special duty to exercise care might be inferred. In my judgment, however, these facts, though
clearly relevant on the question of honesty if this had been in issue, are not sufficient to establish
any special relationship involving a duty of care even if it was open to extend the sphere of
special relationship beyond that of contract and fiduciary relationship."

This judgment was affirmed by the Court of Appeal both because they were bound by authority
and because they were not satisfied that it would be reasonable to impose on a banker the
obligation suggested

Before coming to the main question of law, it may be well to dispose of an argument that there
was no sufficiently close relationship between these parties to give rise to any duty. It is said that
the respondents did not know the precise purpose of the inquiries and did not even know whether
National Provincial Bank, Ltd. wanted the information for its own use or for the use of a
customer: they knew nothing of the appellants.

I would reject that argument. They knew that the inquiry was in connexion with an advertising
contract, and that it was at least probable that the information was wanted by the advertising
contractors. It seems to be quite immaterial that they did not know who these contractors were:
there is no suggestion of any speciality which could have influenced them in deciding whether to
give information or in what form to give it.

I shall therefore treat this as if it were a case where a negligent misrepresentation is made
directly to the person seeking information, opinion or advice, and I shall not attempt to decide
what kind or degree of proximity is necessary before there can be a duty owed by the defendant
to the plaintiff.

The appellants' first argument was based on Donoghue vs Stevenson. That is a very important
decision, but I do not think that it has any direct bearing on this case. That decision may
encourage us to develop existing lines of authority, but it cannot entitle us to disregard them.
Apart altogether from authority I would think that the laws must treat negligent words differently
from negligent acts. The law ought so far as possible to reflect the standards of the reasonable
man, and that is what Donoghue (or McAlister) vs Stevenson sets out to do. The most obvious
difference between negligent words and negligent acts is this.

Quite careful people often express definite opinions on social or informal occasions, even when
they see that others are likely to be influenced by them; and they often do that without taking that
care which they would take if asked for their opinion professionally, or in a business connexion.
The appellants agree that there can be no duty of care on such occasions, and we were referred to
American and South African authorities where that is recognized, although their law appears to
have gone much further than ours has yet done.

But it is at least unusual casually to put into circulation negligently-made articles which are
dangerous. A man might give a friend a negligently-prepared bottle of home-made wine and his
friend's guests might drink it with dire results; but it is by no means clear that those guests would
have no action against the negligent manufacturer.

Another obvious difference is that a negligently-made article will only cause one accident, and
so it is not very difficult to find the necessary degree of proximity or neighbourhood between the
negligent manufacturer and the person injured.

But words can be broadcast with or without the consent or the foresight of the speaker or writer.
It would be one thing to say that the speaker owes a duty to a limited class, but it would be going
very far to say that he owes a duty to every ultimate "consumer" who acts on those words to his
detriment.

It would be no use to say that a speaker or writer owes a duty, but can disclaim responsibility if
he wants to. He, like the manufacturer, could make it part of a contract that he is not to be liable
for his negligence: but that contract would not protect him in a question with a third party at least
if the third party was unaware of it.

So it seemed to me that there is good sense behind our present law that in general an innocent but
negligent misrepresentation gives no cause of action. There must be something more than the
mere misstatement. I therefore turn to the authorities to see what more is required.

The most natural requirement would be that expressly or by implication from the circumstances
the speaker or writer has undertaken some responsibility, and that appears to me not to conflict
with any authority which is binding on this House. Where there is a contract there is no difficulty
as regards the contracting parties: the question is whether there is a warranty. The refusal of
English law to recognize any jus quaesitum tertio causes some difficulties, but they are not
relevant here.

Then there are cases where a person does not merely make a statement, but performs a gratuitous
service. I do not intend to examine the cases about that, but at least they show that in some cases
that person owes a duty of care apart from any contract, and to that extent they pave the way to
holding that there can be a duty of care in making a statement of fact or opinion which is
independent of contract.

Much of the difficulty in this field has been caused by

Derry vs Peek.

The action was brought against the directors of a company in respect of false statements in a
prospectus. It was an action of deceit based on fraud and nothing else. But it was held that the
directors had believed that their statements were true although they had no reasonable grounds
for their belief.

The Court of Appeal held that this amounted to fraud in law, but naturally enough this House
held that there can be no fraud without dishonesty and that credulity is not dishonesty. The
question was never really considered whether the facts had imposed on the directors a duty to
exercise care. It must be implied that on the facts of that case there was no such duty. But that
was immediately remedied by the Directors Liability Act, 1890, which provided that a director is
liable for untrue statements in a prospectus unless he proves that he had reasonable ground to
believe and did believe that they were true

It must now be taken that Derry vs Peek did not establish any universal rule that in the absence
of contract, an innocent but negligent misrepresentation cannot give rise to an action. It is true
that Lord Bramwell said: "To found an action for damages there must be a contract and breach,
or fraud"; and for the next twenty years it was generally assumed that Derry vs Peek decided
that.

But it was shown in this House in

Nocton vs Lord Ashburton:

that that is much too widely stated. We cannot therefore now accept as accurate the numerous
statements to that effect in cases between 1889 and 1914, and we must now determine the extent
of the exceptions to that rule.

Nocton vs Lord Ashburton:

In that case a solicitor was sued for fraud. Fraud was not proved, but he was held liable for
negligence. Viscount Haldane L.C. dealt with Derry vs Peek and pointed out that while the
relationship of the parties in that case was not enough, the case did not decide

that where a different sort of relationship ought to be inferred from the circumstances, the case is
to be concluded by asking whether an action for deceit will lie There are other obligations
besides that of honesty the breach of which may give a right to damages. These obligations
depend on principles which the judges have worked out in the fashion that is characteristic of a
system where much of the law has always been judge-made and unwritten."

It hardly needed Donoghue vs Stevenson to show that that process can still operate. Lord
Haldane quoted a passage from the speech of Lord Herschell in Derry vs Peek where he
excluded from the principle of that case.

'those cases where a person within whose special province it lay to know a particular fact has
given an erroneous answer to an inquiry made with regard to it by a person desirous of
ascertaining the fact for the purpose of determining his course." Then he explained the
expression "constructive fraud" and said:
What it really means in this connexion is not moral fraud in the ordinary sense, but breach of the
sort of obligation which is enforced by a court which from the beginning regarded itself as a
court of conscience."

He went on to refer to "breach of special duty" and said: If such a duty can be inferred in a
particular case of a person issuing a prospectus, as, for instance, in the case of directors issuing to
the shareholders of the company which they direct a prospectus inviting the subscription by them
of further capital, I do not find in Derry vs Peek an authority for the suggestion that an action for
damages for misrepresentation without an actual intention to deceive may not lie.'

I find no dissent from these views by the other noble and learned Lords. Lord Shaw of
Dunfermline also quoted the passage which I have quoted from the speech of Lord Herschell,
and, dealing with equitable relief, he approved a passage in an argument of Sir Roundell Palner
which concluded:

in order that a person may avail himself of relief founded on it he must show that there was such
approximate relationship between himself and the person making the representation as to bring
them virtually into the position of parties contracting with each other."

an interesting anticipation in 1873 of the test of who is my neighbour. Lord Haldane gave a
further statement of his view in Robinson vs National Bank of Scotland a case to which I shall
return. Having said that in that case there was no duty excepting the duty of common honesty, he
went on to say:

"In saying that I wish emphatically to repeat what I said in advising this House in the case of
Nocton vs Lord Ashburton, that it is a great mistake to suppose that, because the principle in
Derry vs Peek clearly covers all cases of the class to which I have referred, therefore the freedom
of action of the courts in recognizing special duties arising out of other kinds of relationship
which they find established by the evidence is in any way affected. I think, as I said in Nocton's
case, that an exaggerated view was taken by a good many people of the scope of the decision in
Derry vs Peek.

The whole of the doctrine as to fiduciary relationship, as to the duty of care arising from implied
as well as express contracts, as to the duty of care arising from other special relationships which
the courts may find to exist in particular cases, still remains, and I should be very sorry if any
word fell from me which should suggest that the courts are in any way hampered in recognizing
that the duty of care may be established when such cases really occur.'

This passage makes it clear that Lord Haldane did not think that a duty to take care must be
limited to cases of fiduciary relationships in the narrow sense of relationships which had been
recognised by the Court of Chancery as being of a fiduciary character. He speaks of other special
relationships, and I can see no logical stopping place short of all those relationships where it is
plain that the party seeking information or advice was trusting the other to exercise such a degree
of care as the circumstances required, where it was reasonable for him to do that, and where the
other have the information or advice when he knew or ought to have known that the inquirer was
relying on him. I say "ought to have known" because in questions of negligence we now apply
the objective standard of what the reasonable man would have done.

"A reasonable man, knowing that he was being trusted or that his skill and judgment were being
relied on, would, I think, have three courses open to him. He could keep silent or decline to give
the information or advice sought: or he could give an answer with a clear qualification that he
accepted no responsibility for it or that it was given without that reflection or inquiry which a
careful answer would require: or he could simply answer without any such qualification. If he
chooses to adopt the last course he must, I think, be held to have accepted some responsibility for
his answer being given carefully, or to have accepted a relationship with the inquirer which
requires him to exercise such care as the circumstances require."

If that is right then it must follow that Candler vs Crane Christmas & Co. was wrongly decided.
There the plaintiff wanted to see the accounts of a company before deciding to invest in it.

The defendants were the company's accountants and they were told by the company to complete
the company's accounts as soon as possible because they were to be shown to the plaintiff who
was a potential investor in the company. At the company's request the defendants showed the
completed accounts to the plaintiff, discussed them with him, and allowed him to take a copy.

The accounts had been carelessly prepared and gave a wholly misleading picture. It was obvious
to the defendants that the plaintiff was relying on their skill and judgment and on their having
exercised that care which by contract they owed to the company, and I think that any reasonable
man in the plaintiff's shoes would have relied on that.

This seems to me to be a typical case of agreeing to assume a responsibility: they knew why the
plaintiff wanted to see the accounts and why their employers, the company, wanted them to be
shown to him, and agreed to show them to him without even a suggestion that he should not rely
on them.

The majority of the Court of Appeal held that they were bound by Le Lievre vs Gould and that
Donoghue v. Stevenson had no application. In so doing I think that they were right. The Court of
Appeal have bound themselves to follow all rationes decidendi of previous Court of Appeal
decisions, and, in the face of that rule, it would have been very difficult to say that the ratio in Le
Lievre vs Gould did not cover Candler's case.

Lord Denning, who dissented, distinguished Le Lievre v. Gould on its facts, but, as I understand
the rule which the Court of Appeal have adopted, that is not sufficient if the ratio applies; and
this is not an appropriate occasion to consider whether the Court of Appeal's rule is a good one.
So the question which we now have to consider is whether the ratio in Le Lievre vs Gould can be
supported, But before leaving Candler's case one must note that Cohen, L.J, attached
considerable importance to a New York decision Ultramares Corporation vs Touche, a decision
of Cardozo, C.J. But I think that another decision of that great judge, Glanzer vs Shepard, is
more in point because in the latter case there was a direct relationship between the weigher who
had a certificate and the purchaser of the goods weighed, who the weigher knew was relying on
his certificate: there the weigher was held to owe a duty to the purchaser with whom he had no
contract The Ultramares case can be regarded as nearer to Le Lievre v Gould.

Le Lievre vs Gould:

a surveyor, Gould, gave certificates to a builder, who employed him. The plaintiffs were
mortgagees of the builders' interest and Gould knew nothing about them or the terms of their
mortgage; but the builder, without Gould's authority, chose to show them Gould's report. I have
said that I do not intend to decide anything about the degree of proximity necessary to establish a
relationship giving rise to a duty of care, but it would seem difficult to find such proximity in this
case and the actual decision in Le Lievre vs Gould may therefore be correct.

The decision, however, was not put on that ground: if it had been Cann vs Willson would not
have been overruled. Lord Esher, M.R., held that there was no contract between the plaintiffs and
the defendant and that this House in Derry vs Peek had "restated the old law that, in the absence
of contract, an action for negligence cannot be maintained when there is no fraud." Bowen, L.J.-
gave a similar reason he said:

"Then Derry vs Peek decided this further point - viz. that in cases like the present (of which
Derry vs Peek was itself an instance) there is no duty enforceable in law to be careful."
He added that the law of England

'does not consider that what a man writes on paper is like a gun or other dangerous instrument;
and, unless he intended to deceive, the law does not, in the absence of contract, hold him
responsible for drawing his certificate carelessly."

So both he and Lord Esher held that Cann vs Willson was wrong in deciding that there was a
duty to take care. We now know on the authority of Donoghue vs Stephenson that Bowen, L.J.
was wrong in limiting duty of care to guns or other dangerous instruments, and I think that, for
reasons which I have already given, he was also wrong in limiting the duty of care with regard to
statements to cases where there is a contract. On both points Bowen, L.J, was expressing what
was then generally believed to be the law, but later statements in this House have gone far to
remove those limitations.

I would therefore hold that the ratio in Le Lievre vs Gould was wrong and that Cann vs Willson
ought not to have been overruled.

Now I must try to apply these principles to the present case. What the appellants complain of is
not negligence in the ordinary sense of carelessness, but rather misjudgment in that Mr. Heller,
while honestly seeking to give a fair assessment, in fact made a statement which gave a false and
misleading impression of his customer's credit. It appears that bankers now commonly give
references with regard to their customers as part of their business.

I do not know how far their customers generally permit them to disclose their affairs, but even
with permission it cannot always be easy for a banker to reconcile his duty to his customer with
his desire to give a fairly balanced reply to an inquiry; and inquirers can hardly expect a full and
objective statement of opinion or accurate factual information such as skilled men would be
expected to give in reply to other kinds of inquiry.

So it seems to me to be unusually difficult to determine just what duty, beyond a duty to be

honest, a banker would be held to have undertaken if he gave a reply without an adequate
disclaimer of responsibility or other warning. It is in light of such considerations that I approach
an examination of the case of Robinson vs National Bank of Scotland.
It is not easy to extract the facts from the report of the case in the Court of Session. Several of the
witnesses were held to be unreliable and the principal issue in the case, fraud, is not relevant for
present purposes. But the position appears to have been this. Harley and two brothers Inglis
wished to raise money. They approached an insurance company on the false basis that Harley
was to be the borrower and the Inglis brothers were to be guarantors.

To satisfy the company as to the financial standing of the Inglis brothers Harley got his London
bank to write to McArthur, a branch agent of the National Bank of Scotland, and McArthur on
July 28, 1910, sent a reply which was ultimately held to be culpably careless but not fraudulent.
Robinson, the pursuer in the action, said that he had been approached by Harley to become a
guarantor before the inquiry was made by Harley but he was disbelieved by the Lord Ordinary
who held that he was not brought into the matter before September.

This was accepted by the majority in the Inner House and there is no indication that any of their
Lordships in this House questioned the finding that the letter of July 28, 1910, was not obtained
on behalf of Robinson. Harley and the brothers Inglis did not proceed with their scheme in July,
but they resumed negotiations in September. The company wanted an additional guarantor and
Harley approached Robinson. A further reference was asked and obtained from McArthur on
October . I about the brothers Inglis, but no point was made of this. The whole case turned on
McArthur's letter of July 28, 1910. After further negotiation the company made a loan to Harley
with the brothers Inglis and Robinson as guarantors. Harley and the brothers Inglis all became
bankrupt and Robinson had to pay the company under his guarantee. Robinson sued the National
Bank of Scotland and McArthur.

He alleged that McArthur's letter was fraudulent and that he had been induced by it to guarantee
the loan. He also alleged that McArthur had a duty to disclose certain facts about the brothers
Inglis which were known to him, but this alternative case played a very minor part in the
litigation. Long opinions were given in the Court of Session on the question of fraud, but the
alternative case of a duty to disclose was dealt with summarily. The Lord Justice Clerk (Lord
Scott Dickson) said:

'It appears to me that there was no such duty of disclosure imposed upon Mr. McArthur towards
the pursuer as would justify us in applying the principle on which Nocton's case was decided.....

As Lord Dundedin referred to cases of liability of a solicitor to his client for erroneous advice
and of similar liability arising from a fiduciary relationship and said "such decisions seem to me
to have no bearing on or application to the facts of the present case.
He also drew attention to the last sentence of the letter of July 28, 1910, which he said would
become important if fraud were out of the case. That sentence is: "The above information is to be
considered strictly confidential and is given on the express understanding that we incur no
responsibility whatsoever in furnishing it." Lord Salvessen, who dissented, did not deal with the
point and Lord Guthrie merely said that here there was no fiduciary relationship. In this House
an unusual course was taken during the argument.

I quote from the Session Cases report:

...after counsel for the respondents had been heard for a short time Earl Loreburn informed him
that their lordships, as at present advised, thought that there was no special duty on McArthur
towards the pursuer, that the respondents were not liable unless McArthur's representations were
dishonest; and that their lordships had not been satisfied as yet that the representations were
dishonest... that under the circumstances the House was prepared to dismiss the appeal; but that
they considered that the pursuer had been badly treated, though he had not any cause of action at
law, and that, therefore, their lordships were disposed to direct that there should be no costs of
the action on either side.

EARL LOREBURN said that counsel might prefer to argue the case further and endeavour to
alter these views, but of course he would run the risk of altering their lordships' views as to the
legal responsibility as well as upon the subject of costs."

Counsel then-wisely no doubt - said no more, and judgment was given for the bank but with no
costs here or below.

That case is very nearly indistinguishable from the present case. Lord Loreburn regarded the fact
that McArthur knew that his letter might be used to influence others besides the immediate
inquirer as entitling Robinson to found on it if fraud had been proved. But it is not clear to me
that he intended to decide that there would have been sufficient proximity between Robinson and
McArthur to enable him to maintain that there was a special relationship involving a duty of care
if the other facts had been sufficient to create such a relationship. I would not regard this as a
binding decision on that question. With regard to the bank's duty Lord Haldane said:

"There is only one other point on which I wish to say anything, and that is the question which
was argued by the appellant, as to there being a special duty of care under the circumstances
here.
I think the case of Derry vs Peek in this House has finally settled in Scotland, as well as in
England and Ireland, the conclusion that in a case like this no duty to be careful is established.
There is the general duty of common honesty, and that duty of course applies in the
circumstances of this case as it applies to all other circumstances. But when a mere inquiry is
made by one banker of another, who stands in no special relationship to him, then, in the absence
of special circumstances from which a contract to be careful can be inferred, I think there is no
duty excepting the duty of common honesty to which I have referred."

I think that by 'a contract to be careful' Lord Haldane must have meant an agreement or
undertaking to be careful. This was a Scots case and by Scot's law there can be a contract without
consideration: Lord Haldane cannot have meant that similar cases in Scotland and England
would be decided differently on the matter of special relationship for that reason. I aun, I think,
entitled to note that this was an extempore judgment. So Lord Haldane was contrasting a "mere
inquiry" with a case where there are special circumstances from which an undertaking to be
careful can be inferred. In Robinson's case any such undertaking was excluded by the sentence in
McArthur's letter which I have quoted and in which he said that the information was given 'on
the express understanding that we incur no responsibility whatever in furnishing it.'

It appears to me that the only possible distinction in the present case is that here there was no
adequate disclaimer of responsibility. Here, however, the appellant's bank, who were their agents
in making the enquiry, began by saying that they wanted to know in confidence and without
responsibility on our part', that is . on the part of the respondent. So I cannot see how the
appellants can now be entitled to disregard that and maintain that the respondents did incur a
responsibility to them.

The appellants founded on a number of cases in contract where very clear words were required to
exclude the duty of care which would otherwise have flowed from the contract. To that argument
there are, I think, two answers. In the case of a contract it is necessary to exclude liability for
negligence, but in this case the question is whether an undertaking to assume a duty to take care
can be inferred; and that is a very different matter. Secondly, even in cases of contract general
words may be sufficient if there was no other kind of liability to be excluded except liability for
negligence; the general rule is that a party is not exempted from liability for negligence "unless
adequate words are used"-per Scrutton, L.J. in Rutte vs Palmer. It being admitted that there was
here a duty to give an honest reply, I do not see what further liability there could be to exclude
except liability for negligence: there being no contract there was no question of warranty.
I am therefore of the opinion that it is clear that the respondents never undertook any duty to
exercise care in giving their replies. The appellants cannot succeed unless there was such a duty
and therefore in my judgment this appeal must be dismissed." (1) As Lord Reid put the point in
Hedley Bryne vs Heller & Partners:

"A reasonable man, knowing that he was being trusted or that his skill and judgment were being
relied on, would, I think, have three courses open to him.

1. he could keep silent or decline to give the information or advice sought; or

2. he could give an answer with a clear qualification that he accepted no responsibility for it or
that it was given without that reflection or inquiry which a careful answer would require; or

3. he could simply answer without any such qualification.

If he chooses to adopt the last course, he must, I think, be held to have accepted some
responsibility for his answer being given carefully, or to have accepted a relationship with the
inquirer which requires him to exercise such care as the circumstances require."

For the circumstances in which this relationship will arise, we refer to Lord Neil in
MacNaughten Ltd vs Hicks, namely:

1. ) the purpose for which the statement was made;

(2. the purpose for which the statement was communicated

(3.) the relationship between (i) the adviser; (ii) the advisee; or (iii) any third party;
(4. the size of any class to which the advisee belongs;

(5. the state of knowledge of the adviser; and

(6. the reliance by the advisee.

(2) The misstatement may be a misstatement /

(a) of law;

(b) opinion;

(c) fact; or

(d) intention.

(3) The misstatement may be by-

(a) voluntary undertaking;

(b) in the course of business; or

(c) a person under duty to speak.

(4) Liability will not be imposed merely because it is foreseeable that the plaintiff would rely on
the statement. There must be close proximity between the maker and the recipient of the advice
and as a matter of public policy it must be fair, just and reasonable to impose the duty: Caparo
and McNaughton Ltd. vs Hicks Anderson case:

(1) The relationship of proximity arises only if there is knowledge of the purpose for which the
information is required and knowledge that it is likely to be relied on for that purpose.

(ii) Necessary condition for proximity between adviser and the advisee:

1. the advice is required for a purpose made known, actually or inferentially to the adviser at the
time of the advice;

2. the adviser knows his or her statement will be communicated, actually or inferentially, that his
advice will be communicated to the advisee in order that the advisee may use it for that purpose;

3. it is known, actually or inferentially that the advisee will act on the advice for that purpose
without further inquiry; and

4. it is acted upon by the advisee for the purpose to his or her detriment.

5.The duty will also arise if the adviser gains financially from reliance by the advisee on the
advice.

Anderson vs Rhodes & others :

In that case the plaintiffs and the first defendants operated as wholesalers in the vegetable and
fruit market. The first defendants, a company of good standing sometimes acted as commission
agents for other buyers. The practice in this business was that payment came later after delivery.
The second defendant was employed as salesman and buyer for the first defendants . The third
defendant was the first defendant's manager.

As a result of the fact that the accounts of the first defendants were not regularly brought up to
date, they did not realize that a principal for whom the second defendants placed certain orders
was in arrears. The second defendant, when he placed some orders on behalf of the principal
(Taylors Ltd) with the plaintiffs, represented to the plaintiff's that T Ltd. (that is the principal)
was creditworthy. They took delivery of the potatoes sold to them thereby but were unable to pay
for them having become insolvent. The plaintiffs brought the action for damages against the
defendants on the ground of negligence in representing to them that T Ltd were credit-worthy,
and without which representation they would not have entered into the transactions. Held by
Cains J that they were liable: "the representation here concerned a business transaction whose
nature made clear the gravity of the enquiry and the importance and influence attached to the
answers."

There was in the circumstances a duty to exercise care in the representation which was not done.
If first defendants had kept their accounts reasonably carefully they would have realised that they
had evidence which made the credit-worthiness of T Ltd. doubtful.

(6) From the foregoing cases, it is evident that liability may be affected by (a) disclaimer, (b) the
fact that the statement was off-the-cuff; and (c) the social nature of the occasion. The plaintiff
must prove reliance on the statement and such reliance must cause him loss. The reliance here is
a causal concept i.c. plaintiff must show that but for his reliance on the statement, he would not
have suffered loss. The plaintiff must prove lack of due care, not just error of judgment!!!
Silence on defendant's part cannot found an action in negligent misstatement on Hedley Byrne vs
Heller principles.

(7) In Assurance Co. vs Evatt:

it was held by the Judicial Committee of the Privy Council, by majority decision, that the duty
arises only if his adviser is in the business of giving advice. Speaking for their Lordships, Lord
Diplock confirmed this:

"But, in their Lordships' view, references to 'such care as the circumstances require' presupposed
an ascertainable standard of skill with which the advisor was acquainted or had represented that
he was. Unless he carried on the business or profession of giving advice he could not be
reasonably expected to know whether any or what degree of skill was called for, and he could
not be reasonably held to have accepted the responsibility of conforming to a standard of skill of
which he was unaware simply Because he answered the inquiry with knowledge that the advisee
intended to rely on his answer. The reference should be understood as restricted TO ADVISORS
WHO CARRIED ON THE BUSINESS OR PROFESSION OF GIVING ADVICE of the
kind sought by them in the course of that business." However, the authority of this case as an
accurate interpretation of Hedley Byrne is seriously weakened by the fact that three of the five
law lords who decided the Hedley Byrne case were here, but were divided: one with the
majority; two dissented.

The courts have held that policy considerations weigh heavily in determining success with this
tort. So, for example, an advice given on a social occasion may not found an action under this
tort.

As Lord Justice Christopher Clarke put it in Jonathan Paul Hunt and others vs Optima
(Cambridge) Limited, Strutt & Parker. In order to recover in the tort of negligent misstatement
the clainant must show that he relied on the statement in question: James McNaughton Paper
Group Ltd. vs Hicks Anderson & Co.

It must operate upon his mind in such a way that he suffers loss on account of his reliance e.g.
by buying at too high, or selling at too low, a price, or making an agreement or doing something
which he would not otherwise have made or done: Smith vs Chadwick

SPECIAL SITUATION FOR LAWYERS?

The English courts have held that no such cause of action is available for the conduct of
barristers in court but for that of a solicitor. Otherwise, a litigant will sue a barrister for
negligence and start the case all over again; besides, a barrister is an officer of the court with
certain responsibilities:

Among the reasons for the immunity of barristers from negligent suits on policy

grounds three may be noted:

(1. A barrister owes a duty both to the court and his client: the public interest requires him to be
protected from the anxiety of a threatened law-suit.

(2. ) The public interest requires that the decision of one court should not be questioned by
another except through the appeal process.

(3. Immunity from suit granted by the Constitution applies to all participants in the judicial
process, including the barrister.

In Ghana, our position is different. In Ghana, the law allows such an action against a legal
practitioner. The rationale was provided by Justice Apaloo in Fordwuoh vs Law Chambers.
Apaloo said:

"We think that in a fast developing country like our own, where the numerical strength of the
legal profession is on the increase, it is in the public interest that professional standards should be
closely watched and that lapses in lawyers must be seriously viewed and where, as here, such
lapses result in grave financial losses to lay clients, they must be adequately compensated."

Finally, it is respectfully submitted that to the extent to which the decision in:

Appenteng vs BWA." was based on Candler's case, that decision is no more good law. Our
courts would therefore have no choice but to apply Hedley Byrne.

DEATH IN RELATION TO TORTS

The topic is covered by the Civil Liability Act, 1963 (Act 176) in Parts 3 and 4.

Death has the effect of doing one of two things in the law of torts:

(1. It may create liability: see section 16 of Act 176.

(2.) It may extinguish liability: see section 24 of Act 176.

But in order to understand the provisions of Act 176 fully, we need to address the English law on
the subject before the enactment of Act 176.

A. Death creating liability

At common law

At common law, causes of action in torts were generally destroyed by the death of one party.
That is

1. actions against the deceased are extinguished; and

2. actions the deceased has against others are extinguished.

The death, however caused, did not confer a cause of action on anyone against the tortfeasor.
For, the effect of the operation of the maxim actio personalis moritur cum persona was that it
was better to kill than to injure. This rule is reflected in decisions such as

Baker vs Bolton:

This was an action against the defendants, as proprietors of a stage-coach, on which the plaintiff
and his late wife were travelling from Portsmouth to London, when it was overturned. The
plaintiff was himself severely bruised and his wife was so badly injured that she died about a
month later in hospital.

He appeared to have been very much attached to the wife, who helped him considerably in his
business. He sued for negligence and claimed among others that - "by means of the premises, the
plaintiff had wholly lost and been deprived of the comfort, fellowship and assistance of his said
wife, and had from thence hitherto suffered and undergone great grief, vexation, and anguish of
mind."

Lord Ellenborough, in directing the jury, said the jury could only take into account the bruises
sustained by the plaintiff himself, the loss of his wife's company and the distress of mind he had
suffered because of her from the time of the accident to her death, adding that:

"In a civil court, the death of a human being could not be complained of as an injury, and in this
case the damages as to the plaintiff's wife must stop with the period of her existence."

REFORMS Under 1846 Acts

The Fatal Accidents Acts of 1846 (also known as Lord Campbell's Acts) were passed in the UK
to soften the rigours of the operation of the common law rule. The Acts did not abolish the
common law rule, but merely created exceptions to it to cater for situations where death was
caused by the wrongful act or omission of another. Under the Acts, if the person killed would
have had a cause of action had he lived, then the wrongdoer will be liable. Every such action was
only for the benefit of the wife, husband, parents, or child of the deceased person, that is the
dependants. All such actions had to be brought within twelve months of the deceased's death.

The English statutes applied in Ghana as "statutes of general application" until the passage of the
Civil Liability Act, 1963 (Act 176).

NATURE OF THE RELIEF INTRODUCED BY THE REFORMS.

There must, under the exceptions introduced by the 1846 Acts, be a wrong done to the deceased.

(1. It follows that if the act causing the death was not tortious, the defendant will not be liable,
that is the dependants' action was derivative.
(2. It also follows that, if the defendant would have had a good defence to an action by the
deceased in his lifetime, there was no liability.

(3. If the deceased in his lifetime had agreed not to ate the defendant, no action will lie against
him at the instance of his dependants.

(4. If the deceased had settled his claim, no action will lie.

The last but one point is illustrated by the case of:

Read vs Great Eastern Railway Company.

This was an action brought by the plaintiff, (widow of Deseased. Read) as executrix of the
deceased, to recover damages for injuries sustained by the latter through the negligence of the
defendants as a result of which he died.

The defendants argued that the action could not be maintained because they had, while the
deceased was alive, paid to him,, and he accepted, a sum of money in full satisfaction and
discharge of all claims and causes of action which he had against them.

It was held by the Court, that this was a good demurrer to the action, because the Act (Lord
Campbell's Act) which enabled a person to sue, where if a person received an injury which
ultimately led to his death, the operation of the maxim or axion action personalis moritur cum
persona would have resulted in denial of action in respect of his death, did not create a fresh
cause of action in respect of the executor or administrator.

It gave the executor a right of action where the deceased has not received, in his lifetime,
anything which would be a bar to his maintaining an action. Thus, where the deceased, while
alive, has already brought an action or accepted compensation, the executor cannot bring a fresh
one.

(5.) If the action was statute-barred before the deceased's death, no action will lie.
 (6. Any defence that would have been available against the deceased had he lived and sued can
be raised against the action by his dependants.

What if the tortfeasor limited his liability to a fixed sum of money? For this let us examine the
case of

Nunan vs Southern Railway Company.

John Nunan was a passenger on a train belonging to the defendants, which travelled from
Charing Cross to Milton Range Halt. When they arrived at Milton Range Halt, he and other
passengers were going across the railway lines in order to leave when, owing to the negligence
of the defendants' servants, they were run into by another train and Nunan and others were killed.
At the time of his death, he was being carried under a contract which limited the liability of the
defendants to £100.

The widow brought this action under the Fatal Accidents Act of 1846. The defendants contended
that, since the deceased had so contracted with them, no damages in excess of

that amount could be awarded under the Fatal Accidents Act to his widow. Swift J held that the
widow's claim was not limited by the alleged contractual terms and gave her judgment for £800.
The defendants appealed.

It was held, that the important thing under the Fatal Accidents Acts was whether he could have
sued them had he lived. If he could have then, although by the contract his claim would have
been limited to £100, this will not affect his dependants' action. Not only can they sue, there is no
limitation on their damages because (quoting Lord Blackurn in the Vera Cruz) their cause of
action is "new in its species, new in its quality, new in its principle, in every way new." The
defendants' action is for the loss of their breadwinner. Therefore, the alleged limitation must be
measured by the pecuniary loss to the dependants.

Nature of the interest created by the reforms

The 1846 Acts gave no indication as to the type of interest protected. But the courts have held
that the Acts protect purely pecuniary interest. The purpose of the award is to provide the
dependants with a capital sum which, with prudent management, will be sufficient to provide
them material benefits of the same standard and duration as would have been provided them by
the deceased had he or she lived.

The point was made in Blake vs Midland Railway Company.

This was an action by the widow of Blake who was killed in a railway collision which occurred
as a result of the negligence of the defendants. The deceased was a merchant. The trial judge
(Parke B), in his direction to the jury, used language which did not clearly indicate that the
plaintiff could not recover for mental suffering after the death (they could recover only for
pecuniary loss caused by the death).

The defendants brought a motion for a new trial because they argued that, as damages for
pecuniary loss, the £6000 awarded was excessive and therefore, the jury must have wrongly
taken into account the mental suffering of the plaintiffs. It was held (per Coleridge J and
Crompton) that a new trial must be ordered. Coleridge J was of the view that, under Lord
Campbell's Acts, the measure of damages was not the loss or suffering of the deceased, but the
injury resulting from his death to his family. He said:"

"that it was (as the title says) an Act for Compensating the Families of Persons Killed, not for
solacing their wounded feelings. That if they could recover for mental suffering, there might be
difficulty in computing the degree of mental anguish of each member of the family.

Then not only the child without filial piety, but a lunatic child and a child of very tender years,
and a posthumous child, on the death of the father. may have something for pecuniary loss, but
cannot come in pari passu with the other children and must be cut off from the solacium."

So the jury could not take into account the mental suffering of the plaintiff." Under the 1846
Acts, funeral expenses were held not recoverable: see McCardie J in Barnett vs Cohen.

But, in the case of Baaye vs Prempeh:

 Apaloo J (as he then was) allowed a claim for funeral expenses. This was a judgment before Act
176, and may have been a slip. Now, by virtue of section 18(4) of Act 176, damages may be
recovered in respect of funeral expenses in Ghana.

DAMAGES RECOVERABLE

We have seen that the dependants may bring action for pecuniary loss. Under the law, it seems
that they can also recover prospective loss, where this is reasonably probable.

In the case of prospective loss, it was decided in

Agbedor vs Yeboa:

that the factors to be taken into account are the prevailing social conditions generally example

1. family structure; and

2. formal relationship between sons and fathers, daughters and mothers.

The law is that prospective loss, if reasonably probable is recoverable. But not recoverable if it is
a merely speculative possibility. Two cases explain the law on prospective loss and the attitude
of the courts on the point.

Taff Vale Railway Company vs Jenkin."

This was an action brought by the respondent on behalf of himself and his wife under the Fatal
Accidents Act, 1846 against the appellants for the loss of their daughter, aged 16, who was killed
in a railway accident for which appellants were responsible. At the time of her death, the
respondent's daughter was an apprentice dressmaker with two more months to complete her
apprenticeship. She was an exceptionally clever girl and there was a good chance of her making
substantial earnings on the completion of her apprenticeship. The respondent was a fireman in a
colliery company, who suffered from varicose veins and was not in robust health. The wife kept
a small greengrocer's shop.

The defendants argued that the action could succeed only if it could be shown that the deceased
had actually been contributing to the support of the respondents, that is evidence that the
respondents were depending on the deceased.

They argued that the case should be withdrawn from the jury because, on the facts, there was no
evidence of damage. The trial judge refused. The defendants appealed to the Court of Appeal
which dismissed the appeal because the judges could not agree on anything.

On further appeal to the House of Lords, it was held that the appeal must fail. In the view of the
House of Lords, it is not a condition precedent to the maintenance of an action under the Fatal
Accidents Acts of 1846, that the deceased should have been actually earning money or money's
worth or contributing to the support of the plaintiff at or before the date of the death, provided
that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of life.

Thus where, as in the present action, it was proved that, at the date of her death, the deceased
who lived with her parents was nearing the completion of her apprenticeship as a dressmaker and
was likely in the near future to earn remuneration which might quickly have become substantial,
then there was evidence of damage which the jury could reasonably rely on. Per Viscount
Haldane:

"The action is brought under Lord Campbell's Acts by the father on behalf of himself and
another for damages for the loss of the daughter. Now we have heard a good deal of authority
cited as to what the foundation of such an action is, but I do not think there is much difficulty in
coming to a conclusion as to the principle which underlies those authorities. The basis is not
what has been called solatium, that is to say, damages given for injured feelings or on the ground
of sentiment, but damages based on compensation for pecuniary loss.

But then loss may be prospective, and it is quite clear that prospective loss may be taken into
account. It has been said that this is qualified by the proposition that the child must be shown to
have been earning something before any damages can be assessed. I know of no foundation in
principle for that proposition either in the statute or in any doctrine of law which is applicable;
nor do I think it is really established by the authorities when you examine them." Per Lord
Atkinson:
"I think it has been well established by authority that all that is necessary is that a reasonable
expectation of pecuniary benefit should be entertained by the person who sues. It is quite true
that the existence of this expectation is an inference of fact - there must be a basis of fact from
which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the
proposition that it is necessary that two of the facts without which the inference cannot be drawn
are, first, the deceased earned money in the past, and second, that he or she contributed to the
support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only
pieces of evidence; and the necessary inference can, I think, be drawn from circumstances other
than and different from them." And per Lord Moulton:

"The fact of past contribution may be important in strengthening the probability of future
pecuniary advantage, but it cannot be a condition precedent to the existence of such probability."

Compare this case with Barnett vs Cohen's:

This was an action by the plaintiff, a wholesale trading engineer, to recover damages for the
death of his son, a boy of about four years, from injuries caused by the negligence of the
defendants and their servants. The deceased child was a bright and healthy boy. He had gone to
school when only two years old. The plaintiff is 40, his health is not good and he suffers from a
dilated heart.

The plaintiff claimed as damages, in addition to the loss of the reasonable expectation of
pecuniary benefit from the deceased boy if he had lived, the expenses connected with the burial
of his son, also the expenses which he incurred, as a Jew, in employing a watcher over the body
of his dead child, and also his loss through having to abstain from business for a space of time
after the death. The defendants denied that the plaintiff had sustained any pecuniary loss by
reason of the death of his son and said the action was not maintainable. They paid £10 into court
with a denial of liability. Two issues had to be resolved by the court:

(1. Was the coroner's evidence admissible at the trial?

(2.) Has the plaintiff proved the requisite pecuniary loss to establish a cause of action. It was held
on (b) that, in an action under Lord Campbell's Acts, it is not sufficient for the plaintiff to prove
that he has lost, by the death of the deceased, a mere speculative possibility of pecuniary benefit;
in order to succeed. It is necessary for him, to show that he has lost a reasonable probability of
pecuniary advantage. McCardie J said:

"I think that the only way to distinguish between the cases where the plaintiff has failed from the
cases where he has succeeded is to say that, in the former, there is a mere speculative possibility
of benefit, whereas in the latter, there is a reasonable probability of pecuniary advantage. The
latter is assessable. The former is non- assessable....

In the present action, the plaintiff has not satisfied me that he had a reasonable expectation of
pecuniary benefit. His child was under 4 years. The boy was subject to all the risks of illness,
disease, accident and death. His education and upkeep would have been a substantial burden to
the plaintiff for many years if he had lived. He might or might not have turned out a useful young
man.

He would have earned nothing till 16 years. He might never have aided his father at all. I cannot
adequately speculate one way or the other. In any event, he could scarcely have been expected to
contribute to the father's income, for the plaintiff even now possesses £1000 a year by his
business and may increase it further, nor could the son have been expected to aid in domestic
service.

The whole matter is beset with doubts, contingencies, and uncertainties...." He also said funeral
expenses were not recoverable; neither could the plaintiff recover for what he had spent to satisfy
Jewish religious custom.

The size of the father's own income was one of the reasons apparently why his action failed in
this case. If we conclude that the contribution of money's worth, e.g. service, may satisfy
dependency, then we would be entitled to question this aspect of the ruling.

ASSESSMENT OF THE PECUNIARY LOSS

Damages may be obtained on behalf of the dependants or the estate of the deceased. How are the
damages assessed? How is the quantum assessed? Should we take illegal income into account?
Probably, on public policy grounds, No! It must be remembered that the idea here is to find a
capital sum which a dependant can with prudent management maintain himself or herself on to
the same standard and duration as with the dependency.

The first course is to assess each dependency separately and then total them and award as
damages against the defendant. Of course, this is only possible where there are records. The
second method (the more popular course), is to assess the dependency in a lump sum and to
apportion it to the dependants.

This was the method enunciated by Lord Wright in

Davies vs Powell Duffryn Associated:

This was an action by the widows of two employees of the respondents (Daniels Davies, John
Sidney) fatally injured by an explosion in one of the mines of the respondents. They attributed
the accident to the breach of statutory duty and negligence on the part of respondents. Each
claimed damages under:

(1. The Fatal Accidents Act, 1846-1908, on behalf of the dependants of the deceased, and

(2.) the Law Reform (Miscellaneous Provision) Act, 1934, in respect of the deceased's shortened
expectation of life.

There was also a claim in each case for funeral expenses. The learned judge decided the question
of liability in favour of the plaintiff-appellant and found as a fact that the dependants depended
entirely on the earnings of the deceased.

The respondent appealed on the question of liability. The appellants cross-appealed on the
question whether the judge was right in taking the awards made to them under the Law Reform
Act into account in assessing the damages under the Fatal Accident Act. The respondents' appeal
was dismissed and so was the appellants' except that one judge thought Mrs. Williams' award
under the Fatal Accidents Act was too low. The appellant further appealed.

This was dismissed but the House of Lords allowed the appeal with respect to increasing that of
Mrs. Williams under the Fatal Accidents Act.
On the substantive question, the House of Lords were unanimously of the view that the learned
judge had rightly, in assessing damages under the Fatal Accidents Act, taken into account the
damages the widows were entitled to under Law Reform Act. On how to assess the loss of
dependency under the FAA, Lord Wright said:"

"The actual pecuniary loss of each individual entitled to sue can only be ascertained by
balancing, on the one hand, the loss to him of the future pecuniary benefit, and, on the other, any
pecuniary advantage which, from whatever source, comes to him by reason of the death.

It is a hard matter of pounds, shillings and pence, [cedis and pesewas] subject to the element of
reasonable future probabilities. The starting point is the amount of wages which the deceased
was earning, the ascertainment of which to some extent may depend on the regularity of his
employment. Then there is an estimate of how much was required or expended for his own
personal and living expenses.

The balance will give a Datum or BASIC FIGURE which will generally be turned into a lump
sum by taking a certain number of Year's Purchase. That sum, however, has to be taxed down by
having due regard to the uncertainties, for instance, that the widow might have married again and
thus ceased to be dependent, and other like matters of speculation and doubt."

This method of assessing the quantum of damages was approved by our courts in Amakom
Sawmill vs Mensah" and Baaye vs Prempeh." The method may be presented in algebraic form as
follows:

Wages =a

Living expenses=b

Datum=a-b
Years purchase=c

Lump sum=c(a+b) to be taxed down as appropriate

However, payments which depend on the generosity of others cannot be taken into account -

Peacock vs Amusement Equipment:

This was an action by the plaintiff, the husband of a woman who died as a result of injuries
sustained as a passenger on a miniature railway conducted by the first defendants and owned by
the second defendants.

The deceased left everything, by her will, to her two children by a previous marriage. The
principal asset of her estate was a grocery business. The children sold the business and, out of
affection for their father, voluntarily gave him £575 said to represent one-third of the deceased's
estate.

In an action by the husband for damages under the Fatal Accidents Acts 1846-1908, Parker J
held that the payment made by the children must be taken into account in assessing the damages
to which the plaintiff was entitled. The plaintiff appealed. It was held, on the appeal, that the
payment made by the children was a voluntary payment made out of consideration or affection
for the plaintiff and was not made in consequence of or by reason of the death and must not,
therefore, be taken into account in assessing the damages to which the plaintiff was entitled.
Somerveil L.J said:

I think it would be only in very unusual circumstances that a voluntary payment would be taken
into account when there was no expectation of it at the time of the 9123 death.

Burgess vs Florence Nightingale Hospital:

 an action by the plaintiff, the husband of the deceased further illustrates the point. The plaintiff
and the wife were dancing partners (professional). They derived their income from
demonstration fees and prize money won in competitions. Their joint fees were paid to the
husband in cash. He then put this money in a drawer from which both took whatever money was
necessary for any particular purpose. The wife, as a result of the negligence of a surgeon at the
defendant's hospital, died. The husband brought this action for damages under the Fatal
Accidents Acts, 1846 for, inter alia,

1. loss of his wife as dancing partner; and

2. loss of her contribution to their joint living expenses.

The plaintiff said because he could not find a suitable dancing partner as replacement, he
suffered loss of income. Held, per Devlin J:

"(1) That claim (a) must fail because it did not establish a benefit on the plaintiff under the FAA,
the arrangement being undoubtedly a business one. Here the wife's services were duly paid for,
that is to say she took her full half-share of the joint carnings. This in no way conferred a benefit
on the plaintiff nor was it suggested that a lady dancing partner would have asked for more but
for the fact that she was the wife of the other partner.

(2) The plaintiff could claim for (b) because when husband and wife with either separate
incomes or a joint income were living together and sharing their expenses, then, each, by the fact
of the sharing, was conferring a benefit on the other which arose from the relationship of
husband and wife; and accordingly, there was a benefit which came within the FAA and was
therefore recoverable by the husband."

Can a party claim for shortened expectation of life? Damages are recoverable under this head,
even though the person is dead, or even though he may have been unconscious for a time before
his or her death. In assessing damages, the courts, in appropriate cases, may have regard to the
victim's knowledge of impending death.
In Flint vs Lovell:

the plaintiff brought the action against the defendants to recover damages for the negligence of
the female defendant in driving a motor car into collision with the plaintiff's. The plaintiff
suffered serious personal injuries and medical evidence suggested strongly that his life
expectation has been shortened. The plaintiff was a vigorous gentleman of 70 years in good
health and condition, energetic and exceptionally active for his age. As a result of the accident,
he was not expected to live long. The judge gave £440 for the shortening of the plaintiff's normal
expectation of life and the defendant appealed.

It was held that the appeal must be dismissed.

The judge, in assessing the damages, was entitled to take into consideration, as one of the
elements of damages, the fact that the plaintiff's normal expectation of life had been materially
shortened.

In Atsyor vs Donkor:

it was held, that damages can be recovered for shortened expectation of life. This decision was
applied in Ayimavor's case." Here, it was held that, in a fatal accident suit by administrators of
the estate of the deceased, it is proper to award damages for loss of expectation of life. The Court
of Appeal per Apaloo J.A. (as by then was) adopted the House of Lords decision in Benham vs
Gambling as the correct basis for assessing damages for loss of expectation of life. That is to say
that the basis of the assessment of this head of damages should not be the prospect of the length
of days but the prospect of a predominantly happy life. The Court of Appeal also adopted the
English convention of awarding a low, almost nominal amount of damages for this type of claim.
(English £500). In Ayimavor, the Court of Appeal allowed 1000 for this type of claim for the
prospect of a reasonably happy life cut short by the accident.

You may recover for pain and suffering, though this may be claimed only if there was some life
in the victim, however, short, before his death. It means, if he is unconscious till death, you
cannot claim under this head.

Medical and funeral expenses are recoverable. And so are administrative expenses, if they were
incurred to enable the plaintiff bring the action.
B. SUMMARY OF THE LAW AS CONSOLIDATED IN THE CIVIL LIABILITY Act 1963 (Act
176) (Parts 3 & 4)

As the memo to Act 176 says, its aims include reform and codification, in one measure, of
certain aspects of civil liabilities in respect of:

(1) compensation for the families of persons killed in accidents; and

(2) survival of certain causes of action: see Memo to Acts of Ghana.

It is a re-enactment with slight amendments of the existing provisions of the English Fatal
Accidents Act, 1846 as amended. As noted earlier, the 1846 Acts were passed to reform the
common law relating to certain aspects of civil liabilities because of the increase in fatal
accidents, when railways were introduced into the U.K. New provisions introduced by Act 176,
example 18(1)(b), provide for award of mental distress resulting to each of the dependants,
limited to $2000.

Section 16 of Act 176 provides as follows:

(1) Where the death of a person is caused by the fault of another such as would have entitled the
party injured, but for his death, to maintain an action and recover damages in respect thereof, the
person who would have been so liable shall be liable to an action for damages for the benefit of
the dependants of the deceased.

(2) Only one action may be brought in respect of the death.

(3) The action may be brought by the personal representative of the deceased, or, if, at the
expiration of six months from the death, there is no personal representative, or, no action has
been brought by the personal representative, by all, or any of the dependants.
(4) The action, by whomsoever brought, shall be for the benefit of all the dependants.

(5) The plaintiff shall furnish the defendant with particulars of the persons for whom and on
whose behalf the action is brought and of the nature of the claim in respect of which damages are
sought to be recovered.

(6) The action shall be commenced within three years after the death."

SECTION 15 of Act 176:

defines who dependants are:

1. Any member of the family of deceased. This is amplified in the First Schedule of Act 176
namely: In this Part- "dependant", in relation to a person whose death is caused by a wrongful
act, includes:

(a.) any member of the family of the deceased, and

(b.) any other person whom he was by reason of adoption under the Adoption Act, 1962 (Act
104) or otherwise obliged to maintain and who suffers loss or mental distress as a result of the
death;

"member of the family" means:

(1) when used in relation to a citizen of Ghana anyone of those persons mentioned in the First
Schedule according as the family is based on the paternal or maternal system; (2) when used in
relation to a person who is not a citizen of Ghana, the wife, husband, father, mother, grandfather,
grandmother, stepfather, stepmother, son, daughter, grandson, grand-daughter, stepson, step-
daughter, brother, half-brother or half-sister.
2. Any other person adopted by him under the Adoption Act, 1962 (Act 104) or any other person
he is otherwise obliged to maintain and who suffers loss or mental distress as a result of the
death. - Foetus? At any age? Relevant for claims by posthumous child:

Section 18:

pecuniary loss plus mental distress. Mental distress not possible after 1966. (Ignored by the
courts):

"One would have thought that mental distress resulting from death to dependants required no
proof and the learned judge should have awarded something if not the maximum allowed."

Section 20:

This section deals with what courts must not take into account in assessing damages. These are:

(1.) any sum payable on the death of the deceased under any contract of insurance;

(2.) any pension, gratuity or other like benefit payable under any enactment or otherwise in
consequence of the death of the deceased.

Section 21:

Contributory negligence applicable here.

Section 27:

Claims in respect of the Estate of the deceased:

Section 27(1):
Damages recoverable for the benefit of the estate by virtue of this Act shall not include
exemplary damages.

SECTION 27 (2):

Where the death of the deceased was caused by the act which gives rise to the cause of action
for the benefit of the estate, the damages shall be calculated without regard to any loss or gain to
the estate consequent on the death, except that a sum for funeral expenses may be added.

DEATH EXTINGUISHING LIABILITY

(b) See Part 4 of Act 176

Section 24 - The following causes of action die with a tortfeasor:

(1) Breach of promise to marry

(2) Actions for seduction

(3) Inducing one's spouse to live or remain apart from the other.

(3) Adultery

(4) A claim for compensation under the Workmen's Compensation Law, 1987 (PNDCL 238).
See Limitation Decree, 1972 (N.R.C.D. 54).
Chapter 27

DEFAMATION

The legal protection for a person's reputation in Ghana is governed by two legal regimes:

1. customary law and

2. the received English common law principles.

In addition, since January 7, 1993, our appreciation of these two legal regimes will have to be
tampered by the provisions of Constitution, 1992 on freedom of expression and its allied rights,
including the fact that the Constitution also guarantees a person's right to an unsullied reputation
in Ghana and the Courts Act, 1993, Act 459.

Section 54 of the Courts Act, 1993 (Act 459):

stipulates that, in a tort dispute between two persons in Ghana, the applicable law shall be their
personal laws. Personal law is defined as the system of customary law to which a person is
subject. If a person is not subject to any system of customary law, then the personal law shall be
the common law. In the context of a defamation action, what this provision suggests, is that
customary law principles apply to such actions between two Ghanaians. In practice, however,
our courts and lawyers generally apply the English common law principles of defamation to all
actions possibly because of the undeveloped state of the customary defamation laws, with the
exception of the Akan customary laws; thanks to J.B. Danquah and Sarbah.

The substance of the law discussed in this chapter will, therefore, be the English principles.
Where relevant and available, references will be made to the appropriate customary law
principles.
1. The scope of defamation in customary law' is wider than at common law in that the former
protects reputation and injured feelings but the latter protects reputation only.

(2. ) Customary law does not draw a distinction between libel and slander. Indeed libel is said to
be unknown to the customary law for the simple reason that writing was unknown to customary
law - per Apaloo JA in

Anthony vs UCC:

but libel applies to effigies as well!!) Thus there is only one action of customary law - slander.

(3. Slander at customary law is actionable without proof of special damage. But, a few
exceptions apart, at common law, slander is only actionable upon proof of special damage.

(4. ) Truth is not always a defence in customary law slander. But it is always a solid defence at
common law. This attitude of the customary law seems to be based on a public policy which is
inhospitable to certain utterances. See, for example, Afful vs Okyere, where it was held
defamatory for the defendant to call plaintiff a "witch" and also say the plaintiff had killed his
two children.

(5. ) Article 21(1(a), (b) and (f) and chapter 12, especially clauses 1-5 of Article 165 of the 1992
Constitution, constitutionalise defamation law. See for this reason the development in the US
First Amendment principles of the concept of a public figure, as contrasted with a private person
in a defamation cases there.

(1) One purpose of the tort of defamation may be said to be the preservation of a balance
between the individual's right to protect his reputation and the general right to free speech.

Derbyshire County Council vs Times Newspapers Ltd.

where it was held that a democratically-elected public authority example district assembly, has
no cause of action at common law to bring an action in defamation!
Should it matter then whether a publication is defamatory in Ghana today that the Constitution,
1992 provides a right to a rejoinder, the publication of which is enjoined on the media? Does
Article 164 throw a damper on an expansive constitutional free speech regime in line with the
US, India and emerging trends in the UK??

Constitution guarantees not just FREE SPEECH but FREEDOM OF EXPRESSION which is
wider.

For example, in the U.S., it has been said that, debate on public issues should be uninhibited,
robust and wide-open and may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials (per Justice Brennan). It also has to be
conceded that, on balance, erroneous statement is inevitable in free debate. How relevant is this
viewpoint to the Ghanaian situation?

The tort of defamation protects a person from false imputations which harm his reputation with
others. This should be distinguished from false statements which do not damage his reputation
but cause or may harm him, for example, loss of custom such as is dealt with by economic torts.
(For example, a false statement that the plaintiff has ceased business - this may be actionable as
injurious falsehood).

Tort of privacy - Article 18(2) of the Constitution, 1992. This provision also constitutionalises
issues of the boundaries of privacy, free speech and the protection of reputation. But does the
article provide a general right to privacy or only in respect of the key words appearing in it.

LIBEL AND SLANDER

Modern English defamation law consists of the twin torts of slander and libel. The common law
has drawn a sharp dividing line between spoken defamatory utterances and imputations
conveyed by writing, signs, pictures and other means that confer some kind of permanence on
statements.
Thus defamation may be a libel which is actionable, without proof of special damage and may be
both a crime and a tort." Spoken defamation, a few isolated exceptions apart, is neither
actionable per se as a tort nor a criminal offence, unless the utterance amounts to some other
crime like sedition, blasphemy or breach of the peace. This division is not the result of a
conscious policy, but arises from historical accidents in the UK. The law was imported into
Ghana with these elements. The UK history is therefore useful to us.

HISTORY

Slander is the offspring of the common law. We note, in the Year Books, that, in the earlier part
of the sixteenth century, the common law courts began to allow an action on the case for
defamation. This was in competition with the ecclesiastical tribunals which had till then occupied
the field with penance as their remedy. At first, the common law action covered only cases
involving allegation of an offence triable at common law. The action was for slander which was
actionable without proof of damage.

At about the same time, the modern law of libel was dealt with by the Court of Star Chamber.
Apart from fining the offender, the Court occasionally awarded the complainant damages as
well. But, though concerned with defamatory writings, the Court treated oral words as libels;
conversely, in the common law courts, written words were actionable as slander.

The distinction was primarily one of courts. In other words, the common law courts treated both
written and oral defamation as slander. The Court of Star Chamber treated both written and oral
words as libel. After the abolition of the Court of Star Chamber, the King's Bench succeeded to
the jurisdiction in libel. Henceforth the two branches of defamation, libel and slander, were
administered by the same court.

The modern torts of slander and libel are, therefore, the product of two different lines of
development. The former is a creature of the action on the case as developed by the common law
courts, the latter was created by the Court of Star Chamber. When jurisdiction for both actions
became vested in one court the opportunity was missed to merge them into one action.

It was only at a later stage when the historical antecedents had been forgotten that a search began
for a priori reasons to justify the established dualism. In the meantime, the criminal and civil
aspects of libel became separated, and libel became fully a civil action.
MODERN DISTINCTION BETWEEN LIBEL AND SLANDER

Once both actions became available in the same court, the need arose to provide a more
justifiable distinction between them as part of this modernisation process. It has been claimed
that libel endures longer than slander, that more significance is attached to the written than the
spoken word by those to whom the communication is addressed, that libel conveys the
impression of deliberate calculation to injure reputation, while slander is usually born of sudden
irritability.

In addition to these psychological arguments, emphasis has also been laid on the allegedly
disparate areas of dissemination, libel usually contained in newspapers or other printed matter
being propagated further than oral statements addressed to a small circle of listeners.

Thus the modern law makes it harder to prove a slander than a libel by requiring the plaintiff's
damage in addition to the defamatory slur to succeed in slander. Libel because of its original
criminal connotation did not require proof of damages to succeed.

From the 17th century, the distinction between libel and slander has been between the spoken
and the written words. Spoken defamation was slander and written defamation was libel.

Even though this remains so today, there is greater difficulty in distinguishing between them than
this simplistic test would suggest. The rationale behind the distinction is that the impermanence
and transient nature of the spoken word makes it reasonable for the lax slander, while the
permanence of the written word justifies the strict sanction of libel.

Thus, books, newspapers and even effigies are libels. If the thing is written, permanent and
visible to the eye it amounts to libel.

In Monson vs Tussauds

in an earlier murder trial of the plaintiff, a verdict of not proven had been returned by the jury.
There, he put up a successful defence of accident. In their exhibitions of wax figures, the
defendants placed the effigy of the plaintiff in the "chamber of horrors" which contained models
of many murderers and malefactors and the plaintiff was represented as happened in the killing,
the subject of the murder case. The plaintiff sued for libel and an interlocutory injunction to
restrain the exhibition of the model of himself. The interlocutory injunction was refused but the
court did hold that the matter might be defamatory." Lopes L.J. said:

"Libels are generally in writing or printing, but this is not necessary; the defamatory matter may
be conveyed in some other permanent form example a statue, a caricature, an effigy, chalk
marks on a wall, signs or pictures may constitute a libel ..."

There is however, a large volume of unclear material on this matter. Take the case of sky writing
- will it be libel or slander? Take imputations which are merely audible but communicated
through a medium of temporary order - that is slander because it is transient. Now, take the same
spoken word which is permanent like the gramophone record - libel or slander?.

The distinction between libel and slander in this borderline area came up for consideration in the
case of

Youssoupoff vs M.G.M. Pictures Ltd.

in this case, the scene in a talkie film depicted on the screen itself were defamatory and held to
constitute libel. A Russian princess alleged that a film, entitled Rasputin, made by the
defendants, suggested that she had been raped or seduced by a monk.

She claimed damages for libel. It was held that she would succeed as it was defamatory to say of
a woman that she had been ravished and would tend to cause her to be shunned and avoided,
although it involved no moral turpitude on her part. But this does not look like an authority for
saying that audible but permanent defamatory matter is always libelous because the pictorial part
of the cinema film rather than the sound track was considered as the ratio decidendi.

Is reading aloud from a written material libel or slander? As you can see the question is of great
importance to broadcasters. The complication comes in if what is being aired is written.

Forrester vs Tyrrel:
Esther M.R. was of the opinion that reading aloud from a written material is a libel. In that case,
the defendant received an anonymous letter whilst at a meeting of a lodge of which both he and
the plaintiff were members. The defendant read the letter to himself and then, by leave of the
chairman, read it to the members present. The jury found that the letter contained defamatory
matter reflecting on the plaintiff. This was held to be a publication of the libel.

Osborn vs Boulter:

a firm of brewers, the defendants, wrote to one of their tenants, the plaintiff, who had
complained to them about the poor quality of their beer, and falsely suggested that it was inferior
because he had added water to it. The letter was dictated to a typist and the plaintiff maintained
that this constituted the publication of a libel. It was held that he must fail, for the
communication and the occasion of its publication being in the reasonable and ordinary course of
business, were privileged However the action failed because the publication was successfully
met with the defence of Qualified Privilege. Two of the judges Slesser and Scrutton LL.J., were
of the opinion that the reading aloud, in any case, would only have amounted to a slander. The
third Greer C.J. said it was libel libel.

The majority viewpoint is supported by the Australian case of Medlum vs Australian

Broadcasting Corporation where the court refused to follow Forrester vs Tyrrel and held that
reading from a script amounted to slander only.

This distinction needs to be drawn because libel is actionable per se, while slander, subject to
four exceptions, is actionable only upon proof of special damage. Also, the conclusion in the
Medium case is founded on the desire of Australian law to protect broadcasting as a matter of
public policy.

Let us now proceed to consider the substantive principles of defamation, both libel and slander
seriatim.

ELEMENTS OF DEFAMATION

Whether slander or libel, the basic elements to be proved are the same.
The plaintiff has to prove that a published statement is defamatory. What are its elements?

1. Proof that the communication is capable of a defamatory meaning.

Before going into detail, we may note some recent judicial statements quoted by Warby J., in
Simpson vs MGN & Anor.

"The natural and ordinary meaning of words for the purposes of a defamation claim is the single
meaning that would be conveyed by those words to the ordinary reasonable reader. The
principles that apply to the determination of that meaning are well-established. Both parties cite
the well-known formulation of Sir Anthony Clarke MR in Jeynes vs News Magazines Limited:

(1) The governing principle is reasonableness.

(2) The hypothetical reasonable reader is not naïve but he is unduly suspicious. He can read
between the lines. He can read in an implication more readily than a lawyer and may indulge in a
certain amount of loose thinking but he must be treated as being a man who is not avid for
scandal and someone who does not, and should not, select one bad meaning where other non-
defamatory meanings are available.

(3) Over-elaborate analysis is best avoided.

(4) The intention of the publisher is irrelevant.

(5) The article must be read as a whole and "bane and antidote" taken together.

(6) The hypothetical reader is taken to be representative of those who would read the publication
in question...
(8) It follows that "it is not enough to say that by some person or another the words might be
understood in a defamatory sense.'

As principle (3) indicates, the exercise is one of impression.

It was said in Gillick vs Brook Advisory Centres:

'Judges should have regard to the impression the words have made on themselves in considering
what impact it would have made on the hypothetical reasonable reader'. Principle (6) requires the
court to form a view on how the representative hypothetical reader of the particular publication
concerned would be likely to understand the words, bearing in mind where in the publication the
words appear; the reader's familiarity with the nature of publication in question; and any
expectations created by that familiarity.

I would add, however, that this is an exercise which needs to be undertaken with care.

The court can take judicial notice of facts which are common knowledge, but facts which are not
need in principle to be admitted or proved, not assumed. The court should beware of reliance on
impressionistic assessments of the characteristics of a newspaper readership.

At common law, a meaning is defamatory if it substantiaslly affects in an adverse manner the

attitude of other people towards the claimant, or has a tendency to do so:

Thornton vs Telegraph Media Group Ltd.

No single satisfactory judicial definition exists at common law; there is no applicable statutory
definition in Ghana, so we go by the English common law which provides FOUR TESTS for the
first element, namely:
The classical criterion was the one laid down by Parke B.

Parmiter vs Coupland;

Here the plaintiff brought an action on the case for a series of libels published of the plaintiff, the
late mayor of Winchester in the "Hampshire Advertiser" newspaper imputing to him perfidious
and corrupt conduct and ignorance of his duties as mayor and justice of the peace for the
borough. It was held that, in a case of defamation, the judge's duty is to tell the jury the law
regarding defamation and leave it to them to decide whether the words were in fact defamatory.

Baron Parke defined defamation to be a false publication without justification or lawful excuse,
calculated to injure the reputation of another by exposing him to hatred, ridicule or contempt,
example humorous caricature or cartoon, describing a person as hideously ugly may be
defamatory because it does not only suggest physical unattractiveness but that the person's
appearance is repulsive. Berkoff vs Burchill, Times, 9th August 1996 (but is the attack on
appearance or reputation?);

At common law, a meaning is defamatory, if it substantially affects IN AN ADVERSE

MANNER, the attitude of other people towards a person. Simpson vs MGN Ltd.

This test however, is not wide enough. Words may cause a person to be shunned by others as in
Youssoupoff vs M.G.M. Pictures." This was added to the test above.

Villers vs Monsley:

the defendant wrote of the plaintiff that he stunk of brimstone and that he had the itch. It was
held for plaintiff, Lord Wilmot saying: If any man deliberately or maliciously publishes anything
in writing concerning another which renders him ridiculous or tends to hinder mankind from
associating or having intercourse with him it is actionable.

(c) Another criterion which has been added to Baron Parke's is a situation. in which words used
damage a person in his profession, business, office or trade.
Tournier vs National Provincial Bank.

In that case, the plaintiff was a customer of the defendant bank. A cheque was drawn by another
customer in favour of the plaintiff who, instead of paying it into his account, indorsed it to a third
person who had an account at another bank. On the return of the cheque to the defendants, their
manager enquired about the person to whom it had been paid and was told it was a bookmaker.
This information the defendants disclosed to third parties.

The plaintiff succeeded in defamation. But here the law distinguishes between an attack which
affects the person's business, office, profession or trade and one which affects him personally:

In more recent times, an attempt has been made to restate the law and provide one criterion, by

Sim vs Stretch:

In that case, the plaintiff's housemaid was enticed away by the defendant who sent this telegram
to the plaintiff. "Edith has resumed her service with us today. Please send her possessions and
the money you borrowed, also her wages... ." In an action for damages for libel, the plaintiff
argued that the words of the telegram were defamatory, that they suggested that, out of necessity,
he had borrowed money from his housemaid and that he had failed to pay her wages.

It was held that the action must fail as the words of the telegram were not capable of a
defamatory meaning.

Lord Atkin stated the test for whether a publication is defamatory to be "would the words tend to
lower the plaintiff in the estimation of the right-thinking members of the society generally?" The
problem with this test is how to identify "right-thinking members" of society.

So, an examination of the cases shows that no single test is adequate.

Therefore, we have four tests. A publication must pass the four tests for us to have the assurance
that it is not capable of a defamatory meaning. Are mere abusive personal attacks, spoken in the
heat of argument, defamatory?

In Bonsu vs Forson:

the plaintiff and the defendant, who had been very close friends, lost their tempers and quarreled
heatedly. The plaintiff alleged that the defendant said of him: "You are a thief, you are a hopeless
lawyer and if it had not been for Owusu Afriyie, you would have no clients"; and "you are
hopeless M.P." It was held that the words were capable of a defamatory meaning but as they had
been spoken in the heat of passion, they were not defamatory. So, the law is that words spoken in
the heat of a quarrel, argument etc. are not defamatory.

2. The second element in the common law of defamation is the interpretation of the words to
determine whether they are actually defamatory. The words must be construed in their fair and
natural meaning as reasonable, ordinary people will understand except where innuendo is
pleaded. The natural and ordinary meaning of words for the purposes of a defamation claim is
the SINGLE MEANING that would be conveyed by those words to the ordinary reasonable
reader.

The hypothetical reasonable reader is not naïve but he is not unduly suspicious.

He can read between the lines. He can read in an implication more readily than a lawyer and may
indulge in a certain amount of loose thinking but he must be treated as a man who is not avid for
scandal and someone who does not and should not, select one bad meaning where other non-
defamatory meanings are available. The words must be interpreted in context. The plaintiff
cannot select out of a passage which, read as a whole, is not defamatory.

TRUE AND FALSE INNUENDO

An innuendo is a defamatory imputation whereby extrinsic facts. known to the reader or listener,
import into the words spoken or the statement some secondary meaning, in addition to or
alteration of their ordinary meaning. Thus, in a true or legal innuendo, some extrinsic facts must
be known to a group, which make the ordinary words defamatory.
An example of a true innuendo is :

Cassidy vs Daily Mirror Newspaper Ltd:

The defendant published in a newspaper a photograph of one Mr. C and a Miss X together with
the words "Mr. M.C, the race-horse owner, whose engagement has been announced." The
plaintiff was and was known among her acquaintances as the lawful wife of MC. But the
defendants did not know this. She brought an action for libel pleading innuendo. It was held that
the publication could be defamatory and, as the jury had found that the photograph and the
caption conveyed to reasonably-minded people an aspersion on the plaintiff's moral character,
she was entitled to succeed.

Anthony vs University of Cape Coast:

for a case of a false innuendo. However, innuendo must be specifically pleaded and proved.

The distinction between a true and a false innuendo was material in Grubb vs Bristol United
Press. The plaintiff was the rector in a village of Somerset. Unhappy events between him and his
parishioners culminated in a meeting of the parishioners, rector and rural clan. Persons not on the
electoral roll and the press were asked to leave before the meeting started. The defendant
newspaper published, on the next day, an article with large headlines in which they stated the
above facts and also that the plaintiff charged £20 for wedding bells.

The plaintiff sued and pleaded innuendo. It was held that an innuendo is an allegation that words
were used in a defamatory sense other than their ordinary meaning and must be founded on facts
and matters and cannot be founded only on interpretation because, if the words bear the
interpretation imputed to them, they are defamatory in their ordinary meaning. Also, if you plead
part only of an article as being a libel, you may not use another part of it as the sole support for
an innuendo.
Lewis vs Daily Express:

is also an example of a false innuendo. In that case, the defendant published that the Fraud
Squad was investigating the affairs of a company of which the plaintiff was the chairman. The
plaintiffs pleaded innuendo arguing that anyone who read the publication would think that they
were frauds. The words were found to be defamatory in their ordinary meaning. The innuendo
claim failed.

Hough vs London Express Newspaper Ltd.:

the defendants published an account of a boxer and the photograph of his curly-headed wife. The
plaintiff, another woman, in fact the boxer's wife, brought an action and produced witnesses who
gave evidence that they read the statement to mean the plaintiff was not the boxer even though
they were not misled, the innuendo was held proved because these were people who possessed
special facts and therefore might understand words in a defamatory sense. wire and,

Once a true innuendo has been held to exist, the principles of interpretation are the same as those
used for out and out defamatory statements. It is for the judge to rule whether the words are
capable of a defamatory meaning and the jury must decide (where the trial is by judge and jury)
whether, factually, they were defamatory considering all circumstances. In Ghana, the two
functions are performed by the judge, since civil actions are tried by judge only.

3. REFERENCE

The third element in defamation is that of reference to the plaintiff. i.c. there must be something
in the defamatory statement pointing to the plaintiff. In the words of Lord Atkin "To be
actionable, the defamatory words must be understood to be published of and concerning the
plaintiff." The easiest situation is where the plaintiff is named. Problems arise when the words
are spoken or written about a class or group and an individual member seeks to sue in
defamation.

In Knupfer vs London Express:

the newspaper published an article referring to an association of political refugees which, it was
admitted, could have been defamatory if it had been written about a named individual. The
appellant was head of the U.K. branch of the association which consisted of 24 members. It was
held that the applicant was not entitled to damages as the words were written of a class and he
had failed to show that they were pointed at him as an individual, that is there was no reference
to him.

This does not mean that the plaintiff must be specifically mentioned by name; but there should
be evidence connecting the plaintiff to the statement.

Le Fam vs Malcolmson:

the appellant wrote an article alleging cruelty in the respondent's factory. Although the letter, in
the course of denouncing the cruelty did not specifically refer to the respondent, it was held that,
even though defamatory matter might appear to refer to only a class, a person can, by innuendo,
show that it referred to him and such a person may maintain an action in respect of such
defamation.

The size of a class and defamation action by an individual member was discussed also in:

Browne vs D.C. Thomson & Company Ltd:

In that case, the defendants' newspaper published an article stating that in Queenstown, the
Roman Catholic Church authorities had instructed that all protestant shop assistants should be
dismissed. The seven persons who alone exercised religious authority on behalf of the Roman
Catholic Church sued for libel and succeeded. Lord Dunedin justified the decision saying:

If a certain set of people are accused of having done something, and if such accusation is
libelous, it is possible for the individuals in that set of people to show that they have been
damnified, and it is right they should have the opportunity of recovering damages as
individuals."
NB: From the three cases, the factors to be taken into account when a class is defamed are

(1) the size of the class;

(2) the generality of the charge; and

(3) the extravagance of the accusation. The bigger the class, the more difficult it will be for an
individual to rely on the words for his action. Conversely, if the class is small, an individual
should be able to sue.

It is immaterial also that the writer did not intend to refer to the plaintiff. Thus in

Hulton vs Jones:

Lord Loreburn had this to say: "Libel is a tortious act. What does the tort consist in? It consists in
using language which others, knowing the circumstances, would reasonably think to be
defamatory of the person complaining of and injured by it.

It was not what the defendant intends, but what the people around the area think of the words."
The point made, in the above quoted statement is illustrated by the decision in:

Newstead vs London Express:

In this case the defendant published an account of the trial for bigamy of a Harold Newstead, a
30 years old Camberwell man. The reporter had included the address and occupation of the
Harold Newstead of whom this report was a correct one but the sub-editor deleted it.

This want of particularity caused readers to think that the plaintiff, another Harold Newstead of
Camberwell of the same age, was meant. The statement was true of a Camberwell barman of that
name but not true of the plaintiff, a Camberwell hairdresser of the same name!! It was held to be
no defence that the words were true of, and intended to refer to another person and the jury was
held justified in finding that the words referred to the plaintiff.
4. PUBLICATION

The fourth element is publication. Libel and slander protect reputation. Therefore, unless the
defamatory matter is published, a person's reputation suffers nothing. Publication means making
known the defamatory matter, after it has been written or spoken, to some person other than the
person of whom it is written or said. It need not be to a large audience.

In Pullman vs Hill:

the alleged libel was contained in a letter about the plaintiffs, two of the members of a
partnership, written on behalf of the defendants, a limited liability company, and sent by post in
an envelope addressed to the firm. The letter was dictated by the managing director of the
defendants to a clerk who took down the words in shorthand then wrote them out in full using a
typewriter. The letter so written was copied by an officer from whom it reached its destination. It
was in the ordinary course of business opened by a clerk of the firm and was read by two other
clerks. It was held (reversing Day J's judgment) that the letter must be taken to have been
published both to the plaintiff's clerks and the defendant's clerks and that neither occasion was
privileged.

If published only to the one of whom it was written, there is no publication; for you cannot
publish a libel of a man to himself. If the person who becomes aware does so through stealing or
eavesdropping, there is no publication.

Huth vs Huth:

the defendant posted a statement to the plaintiffs, in a sealed envelope, which they alleged was
defamatory. In breach of his duty and out of curiosity, the statement was taken and read by a
butler. The plaintiff claimed that this constituted a publication of the libel for which the
defendant was responsible. It was held that the statement was not published in law and the
plaintiff's action failed.
Telegrams, SMS, e-mails, faxes and postcards are deemed published to all who handle them, if
only their contents are understandable. Similarly, libraries, news vendors and bookshops are
deemed to have published defamatory matter contained in what they sell or offer to their
customers.

The point was made in Sadgrove vs Hole." In Vizetelly vs Mudie's Select Library," the
proprietors of a circulatory library circulated copies of a book which, unknown to them,
contained a libel on the plaintiff.

In an action for libel brought against them, they failed to show that it was not through their
negligence that they did not know the book contained the libel when they circulated it. It was
held that they were liable as publishers of the libel.

The principle was further explained in

Emmens vs Pottle:

where it was held that the vendor of a newspaper in the ordinary course of his business, though
he is liable prima facie for libel contained in it, is not liable, if he can prove that he did not know
that it contained a libel; that his ignorance was not due to any negligence on his own part; and
that he did not know and had no ground for supposing that the newspaper was likely to contain
libelous matter. If he can prove these facts, he is not a publisher of a libel. He is in law an
innocent disseminator.

The rule also does not mean that these facilitators or distributors or facilities must read every
material they put out. Everything depends on whether there is general or widespread knowledge
that a particular newspaper or medium usually contains defamatory matter or that an author is in
the habit of doing so. If yes, then the seller is on notice to check material from those sources
before circulating them.

This rule will be very harsh on publishers or printers of newspapers and facilities such as
libraries or innocent disseminators, and so such an innocent disseminator is excused from
liability under two conditions:
1. where he has no reason to suspect the presence of defamatory matter; and

2. where he acted without negligence.

A lot of problems arise in the determination of this element of publication. Is a defendant liable
for unsuspected over-hearing (that is eavesdropping) of a defamatory matter? Or in the following
situations:

1. a parent opens the child's letter;

2. servant reads employer's unsealed letter (Huth vs Huth);"

3. confidential secretary reads letter;

4. A statement not heard by the recipient example because he is deaf, or not understood by him
because it is written in a language he does not know.

5. or a communication contained in a cassette or a letter addressed to an illiterate who gets a third

person to read it to him or a letter intercepted by the head of a school or by a spouse.

A defendant will be held to have published statements which he intends a third party to know or
should have foreseen might come to his attention: see Huth vs Huth. As a rule of thumb, a
defendant must know or anticipate, because it is reasonable, that a spouse might, in some
circumstances, open the other's letters. Similarly, a businessman's

(b) Imputation of a loathesome disease

Bloodworth vs Gray:
the defendant had, on several occasions, suggested to others that his son-in-law, the plaintiff, was
suffering from venereal disease. The plaintiff brought an action for defamation. It was held that,
notwithstanding the plaintiff's failure to prove special damage, he was entitled to succeed as the
defendants' words were actionable per se.

But it is not clear whether imputation of any other kind of disease will be actionable per se. It
may well be that an imputation of leprosy is actionable per se.

In Taylor vs Perkins:

the word "Thou art a leprous knave" were held actionable per se. Will an imputation of
HIV/AIDS or epilepsy qualify under this exception? Certainly, HIV/AIDS should be accepted.
Though unfortunate, there is no doubt that most people would shun the company of a person who
is alleged to be HIV/AIDS positive. The same perhaps should apply to epilepsy. We are all
witnesses of how people behave when another suffers an epileptic fit in their presence.
Invariably the reaction is to run away from the person, at least initially.

(c) Slander in respect of an office, profession, trade or business If the words are uttered about a
person and they tend to disparage him in his office, profession, trade or business, then the words
are actionable per se. The important thing to note is that the defamatory words must have been
spoken in relation to the plaintiff's profession, or trade.

Jones vs Jones

the defendant told another that the plaintiff, a headmaster, had committed adultery with the
school cleaner. It was held that the defendant's words were not actionable in the absence of proof
of special damage.

The English House of Lords held that the allegation did not relate to his conduct in his profession
and, regardless of its prejudicial effects on his employment, was not actionable per se. The
slander (if any) was on the headmaster as a man not on a man as a headmaster. Thus the kind of
imputation which is actionable per se under this head may have to be: you are a useless lawyer,
an incompetent doctor, a dishonest trader, a gambling banker. But .how about: a thieving
politician? It depends on whether we see politics "as a business, office, profession or both. But
the "thieving" charge alone may be actionable per se.

(d) Imputation of unchastity

In the UK, under the Slander of Women Act, 1891, it is slander to impute unchastity to a woman.
This include allegation of lesbianism. In Ghana, the law was laid down in Hotchand vs
Gentleman that:

1. Spoken words imputing unchastity to a woman are, under the customary law, actionable per
se.

2. "But it is also sound law that, if at the time the words were uttered, there were circumstances
known to the hearers, which clearly show that the words were not used in the sense of imputing
unchastity, then no action lies."

secretary is likely to open letters addressed to him unless marked "private" or "personal", or,
even if so marked, it may be opened by a confidential secretary! As Lord Justice Harman said in
Theaker vs Richardson:"

"the question of publication of a libel contained in a letter will depend on the state of the
defendant's knowledge, either proved or inferred, of the conditions likely to prevail in the place
to which the libel is destined."

REPETITIONS AND REPUBLICATIONS-

Each repetition is a fresh publication, thus giving plaintiff a cause of action." heart of defamation
lies in publication because the tort protects the estimation in which others hold the plaintiff.
What they have not heard or seen cannot influence their view of you. This is why the rule is that
any person who repeats or reproduces defamatory matter is also deemed to publish it. Every
person who passes the matter on to another is a publisher in law, even though he might not be the
originator. The

SLANDER

As noted earlier, as a tort, slander requires proof of special damage. In other words, the plaintiff
cannot succeed in an action in slander at common law unless he can show that he suffered
damage as a result of the slander. To this, there are four exceptions that is to say, four types of
slander which are actionable per se. They are:

(a) Imputation of crime

If a person, orally or verbally falsely imputes that the plaintiff has committed a crime for which
he could be punished corporally, i.e. to undergo imprisonment or suffer the death penalty, this is
actionable per se. Where the imputation attracts only a fine, it is not actionable per se.

Hellwig vs Mitchell:

the defendant, manager of a hotel, in the presence of others, said to the plaintiff "I cannot have
you in here, you were on the premises last night with a crowd and you behaved yourself in a
disorderly manner and you had to be turned out." It was held that the plaintiff's action for
damages would not succeed as the defendant's words did not impute the commission of a
criminal offence punishable with imprisonment in the first instance and, for this reason, they
were not actionable without proof of special damage.

The imputation need not be an imputation of a specific crime. It is enough, if the words suggest
that the plaintiff has committed some crime.

Such a case is the case of

Webb vs Beavan:
where the defendant said to the plaintiff, "I know enough to put you into Gloucester gaol" and it
was held that the words were actionable per se.

Chuku vs Nkrumah:

the words "rascal thief" were held actionable per se; but, since they were spoken in the heat of
anger, they were held not to impute a felony and therefore not defamatory. So if you say that you
know enough to put someone in Nsawam Prison, this will be actionable as slander.

3. Words like 'prostitute', etc. which plainly impute unchastity cannot be actionable without
proof of special damage, if it is clear that they were not intended to impute unchastity, but were
spoken merely as quarrel, vituperation or abuse and were so understood by the hearers.

The U.K. Act was explained in 1942 in the case of Kerr vs Kennedy,

In that case, the defendant said to another that the plaintiff 'used to live with other women i.e.
she is a lesbian. The court (per Asquith J) held that the imputation of lesbianism was an
imputation of unchastity under the 1891 legislation. Therefore, it was not necessary for the
plaintiff to prove damage. Should thisd apply Should this apply today? In Ghana? Elsewhere?
Does it cover homosexuality? Would it matter if you refer to someone as a "sexual worker"?

(e) Special damage

This means that the plaintiff must have suffered a material loss as a result of the defamation.
Two questions arise. First, what is material loss? Secondly, the problem of causation, that is the
connection between the words uttered and the resultant damage.

(i) Material loss

A loss that can be quantified in money, i.e. pecuniary loss.

In Allsop vs Allsop:

the plaintiff suffered physical illness as a result of her mental suffering following upon the
slander. This was held not to amount to special damage.

In Coward vs Wellington:

the wife of the plaintiff was in the service of Sir Samuel Meyrich and thereby maintained herself.
The defendant wrote a letter to Sir Samuel, imputing dishonesty to the plaintiff's wife, whereby
she was dismissed from her job to the damage of the plaintiff. It was held that, once the wife was
living apart from the plaintiff and thereby maintaining herself and was dismissed in consequence
of the defendant's letter reflecting on her character, the plaintiff can maintain action for special
damage. But if he dismissed her with intent to take her back again, the action will not lie.

Storey vs Challands:

The plaintiff was a commission agent in the employ of a company. The defendant, intending to
injure him in his trade, business and employment, spoke the following words: 'If you have
anything to do with Storey, you will live to regret it; he is a most unprincipled man; he had
borrowed of Martin a considerable sum and he could not get a shilling of it.' The plaintiff alleged
that, as a result of these words, a man who wanted to do business with him refrained from doing
business with him.

It was held that if you say that a commission agent is unprincipled and borrowed money without
paying back, it will not be actionable without a proof of special damage.

And special damage is proved if it is shown that, as a result of what was said, a man who wanted
to do business with him refrained from doing so. However, if Albert is going to deal with Ben
and asks Cate about Ben, this is a privileged communication, as everyone is quite at liberty to
state his opinion, bona fide, of the respectability of any person he is inquired about. Judgment
was given in favour of the plaintiff.
Causation

So far as causation is concerned, the test is reasonable foreseeability as in negligence.

Lynch vs Knight:

the plaintiff brought an action to recover damages from the defendant for slander uttered by him
to her husband, imputing that she had almost been seduced by B before her marriage and that the
husband ought not to allow B to visit at his house.

The ground of special damage was that in consequence of the (statement) slander, her husband
sent her home to her parents, whereby she lost the consortium of her husband. It was held that
the complaint thus set forth would not sustain the action because the alleged ground of special
damage did not show a natural and reasonable consequence of the slander.

It was said that if the imputation had been that she had broken her matrimonial vows, that is
committed adultery, then the husband's behaviour would have been expected. But, as a reaction
to the particular situation, no one would have foreseen the consequence as being the turning out
of the wife from the matrimonial home that is here was no causal connection between the slander
and the husband's reaction. The concept of foreseeability is here narrower than in negligence.

CUSTOMARY LAW

As noted in the preliminary remarks to this chapter, defamation is governed by two legal regimes
in Ghana. These are the customary law;58 and the received English common law.

From the authorities, it appears that damages were not awarded a successful party in defamation
at customary law. Whether this is an invariable outcome, the position today is that the courts
award pecuniary damages to a successful party whether the litigation is governed by customary
or common law.
Under the customary law, there is only one action, that is the action for slander which is
actionable per se. This was confirmed in Atiase vs Abbobtey.

Quacoe vs Dadson:

the plaintiff claimed £200 damages from the defendant, averring that the defendant, in a public
place in Anomabu and to the hearing of many persons, had said that he was an ex-convict. It was
held that these words were actionable per se.

Ampong vs Aboraa:

the plaintiff who was a candidate for the Akropong Stool was called "slave and beast" by the
defendant. The plaintiff sued for damages for the slander and, in an amendment to his statement
of claim, pleaded to have the matter dealt with under customary law. The court held that the
epithet "slave" by itself was actionable under customary law without proof of special damage,
although it doubted whether it still carried its former sting.

DEFENCES

There are five defences, namely:

(1) ABSOLUTE PRIVILEGE:

This defence covers either the occasion or context in which the statement is made, the nature of
the communication or the writer, the speaker or the publisher. This defence shows defamation
does not always protect reputation against free speech but sometimes it does the opposite. Even
though the publication might be defamatory, the interest in freedom of speech in certain
circumstances excuses the statement from liability. Thus, this defence acts as a complete bar to
the action. The defence cannot be defeated by proof of malice in the publisher. The explanation
is in public policy and the need to protect the public interest.

Four types of communications are absolutely privileged::

(1. Executive matters: Communications related to state matters are absolutely privileged.

Atitsogbe vs Harlley:

As Hayfron Benjamin J explained it in this case, even if the action was properly brought, the
statement was issued when Harlley was in executive position. So privileged. The defence also
covers diplomatic communication. For example, internal embassy memoranda.

Fayed vs Al- Tajir:

the acting ambassador of the United Arab Emirates in London sent a memorandum which was
critical of the plaintiff to one of his counsellors. The plaintiff sued and it was held the
memorandum was privileged. The law was explained by Lord Kerr:

I have reached the clear conclusion that the broad concept of international comity, in
combination with the settled rule within that concept expressed by the "inviolability" of
diplomatic documents, require us to hold that this dispute is not justifiable in our courts. In the
context of an action for defamation this consequence can be expressed by holding that the
publication of this document in he circumstance of this case is protected by absolute privilege;
and I so hold ..."

(2. Judicial proceedings - Articles 114(9), 132(3), and 127(3) of the Constitution, 1992. Any
statements made from the Bar and the Bench are absolutely privileged and so are statements
made before tribunals, committees and commissions of enquiry. It extends not only to judges but
to counsel, jurors, witnesses and the parties.

For example, in Scott vs Stansfield:

a county court judge, while sitting in court said to the plaintiff "You are a harpy preying on the
vitals of the poor:" The words were held to be absolutely privileged. This privilege protects the
public interest, not the judge - public interest in the independence of the judges and the judicial
process.

(3. Legislative proceedings - Articles 96, 97(1), 115, and 116 of the Constitution, 1992. All
proceedings in Parliament are absolutely privileged and all parliamentarians enjoy immunity
from court proceedings for acts, information and speeches made in Parliament. This protection
extends to committee sessions as well. It has been said that what is said or done inside
Parliament cannot be examined outside Parliament for purposes of supporting a cause of action
arising out of something said or done outside per Brown J in Church of Scientology vs Johnson-
Smith.

Also in Prebble vs T.V. New Zealand:

it was held that parliamentary material cannot be used either as a shield or a sword. Does
Parliament for this purpose extend to the whole geographical space occupied by the legislature,
example compound, coffee shops or committee rooms? The answer seems to be in the
affirmative.

(4. SOLICITOR-CLIENT COMMUNICATIONS

This extends to communications between solicitors and their clients, whether oral or written.
This means an action in defamation cannot be founded on information given by a client to a
lawyer and vice versa. This was the basis of the decision in More v Weaver. But doubt was
expressed about whether the privilege will cover every gossip 68 exchanged between a solicitor
and a client however irrelevant to their mutual business.

(2. QUALIFIED PRIVILEGE

The best generalisation of this defence is the one formulated by Baron Parke in Too Good vs
Spyring thus:
"(the defendant is liable for a defamatory publication) unless it is fairly made by a person in the
discharge of some public or private duty, whether legal or moral, or in the conduct of his own
affairs, in matters where his interest is concerned.

If fairly warranted by any reasonable occasion or exigency, and honestly made, such
communications are protected for the common convenience and welfare of society and the law
has not restricted the right to make them within any narrow limits." The law categorises this type
of privilege into five groups:

(1) Words relating to matters of common interest: For example, Hunt vs Great Northern
Railway," the defendants posted up a circular in such of their premises as would be frequented
by their employees, stating that the plaintiff had been dismissed for neglect of duty. The
privilege of common interest was held to extend to the defendants.

(2.Words protecting the interests of publisher: A defamatory statement published for the fair and
reasonable protection of the publisher's own interests is privileged. Thus a person may publish
anything which he believes to be in his interest, example recall Osbourne vs Boulter," where
allegations of watering beer were held privileged.

Somerville vs Hawkins:

The plaintiff had been dismissed from the defendant's service on suspicion of theft. When he
came to collect his wages, the defendant called two other employees of his and addressed them
thus in the presence of the plaintiff:

I have dismissed that man from my service for robbing me; do not speak to him any more in
public or in private, or I shall think you as bad as him." It was held privileged because it was
both the duty and in the interest of defendant to prevent his servants from associating with
persons of such character as he disapproved and the absence of malice must be presumed until
proved.

(3.) Words protecting the interest of another: Here qualified privilege is analogous to the defence
available in relation to the intentional torts. The defendant must show that in the circumstances,
he ought to do something to protect the other's interests. The defendant must have a duty
however characterised (i.e. whether social or legal or moral or otherwise) to make the statement.
There are two conditions:

(1. recipient must be interested in the communication; and

2.) the maker must be under some obligation to communicate. The test is whether the interest of
the person receiving the communication is of such a character as, by its very nature to create a
legal, moral or social duty in the defendant, in the circumstances, to make the stateinent in
question.

As noted above, the recipient of the communication must have an interest in the communication
and the maker must have a duty to report. These two factors must be present before this head of
defence can succeed.

Watt vs Longdon.:

Here the foreign manager of a company, wrote to a director, the defendant, 73 and said that the
managing director, the plaintiff, was "a blackguard, a thief, a liar who lived and lives exclusively
to satisfy his own passions and lust." The defendant showed this letter to the plaintiff's wife and
to the chairman of the board of directors of the company. The allegations contained in the letter
were unfounded but the defendant believed them to be true.

The plaintiff sued for libel. It was held that he was entitled to damages as the publication of the
letter to his wife was not upon a privileged occasion since the defendant did not have sufficient
interest or duty, legal. moral or social, to make the communication. Publication to the chairman
of the board of directors was, however, held privileged.

Instances of such situations are multitudinous. Often the fact that a confidential or close
relationship exists is held by the courts to create a moral or social duty upon one party to report
such communication to the third party. Thus, a mere relative or intimate friend of a lady may
inform her about the character of a fiancé for her own interest; and, if it turns out to be untrue
and yet he believed it, then it comes under this head.

Stuart vs Bell:
where a host informed his guest of his suspicions about the latter's servant. Stanley, the explorer
and his valet Stuart were staying with the mayor of Newcastle, Bell. The Edinburgh police made
a very carefully worded communication to the Newcastle police that there had been a robbery at
a hotel in Edinburgh where Stuart was staying and it might well be to make very careful and
cautious inquiry into the matter. The Newcastle police showed the letter to the mayor who after
consideration showed it to Stanley who dismissed Stuart. Stuart sued the mayor. Two of the three
judges held that the mayor had a moral duty to communicate and Stanley a material interest to
receive the communication. The other judge felt there was no such duty in this case.

(4. Public interest: Fair and accurate reports of parliamentary and judicial proceedings are
entitled to this qualified privilege: see articles 120 and 116(5) and (6) of the Constitution 1992.
Statements made to help in the apprehension and prosecution of criminals are also privileged.

In Wason vs Walter:

the Times of which the defendant was proprietor, published an accurate report of a debate in the
House of Lords during which Earl Russell, Earl Derby and the Lord Chancellor spoke in
disparaging terms about a statement made of the Lord Chief Baron by the plaintiff in a petition to
the house. The plaintiff brought an action for libel. It was held that the action could not succeed,
as a faithful newspaper report of a debate, in either house of Parliament, which contains matter
spoken in the course of debate disparaging to the character of an individual, will not give that
individual a right of action against the newspaper proprietor.

Chief Anthony Enahoro vs Associated Newspapers of Nigeria Limited:

that, for the defence to succeed in this type of cases, the defendant must prove that the report
was, not only fair and accurate, but also that it was published bona fide and without malice.

(v) Misconduct of public official: Where a person believes that there has been misconduct on the
part of a public officer, publication on the alleged misconduct is privileged.

In Harrison vs Bush:
the defendant and others wrote a petition to the Home Secretary asking him to set up an inquiry
into the conduct of the plaintiff who was a justice of the peace and the plaintiff sued for
defamation. Judgment was given on the basis of this principle in favour of the defendant.

Malice: Qualified privilege is destroyed by evidence of malice, that is improper motive. The
plaintiff can show that there is malice, if he can prove that the defendant made the statement to
serve a purpose other than justice. This is the basic difference between Absolute and Qualified
privilege.

In Groom vs Crocker.:

the plaintiff took an insurance policy with an insurance company by the terms of which he was
bound to leave all litigation in the hands of the company. The plaintiff was involved in an
accident which was entirely the fault of the second party in the collision. A passenger in the
plaintiff's car sued both the plaintiff and the second lorry driver and the plaintiff accordingly
informed the insurers.

The solicitors of the insurers, to gain an advantage for the company, maliciously stated in the
proceedings that the collision was due to the negligence of the plaintiff. Judgment was entered
against them and the plaintiff sued them for libel for saying that he caused the accident and for
breach of contract. Judgment was entered in favour of the plaintiff.

The court found that there was evidence of malice in the solicitor's communication. The court
therefore held that, even if the communication was qualified, the presence of malice destroyed it.

Excess of privilege: Qualified privilege will also be defeated by excess of privilege. For
example, the privilege may be deemed exceeded if material is circulated beyond persons who
should legitimately receive it: see the cases of Adam vs Ward," Tackyie v Kabbah.

INACCURACIES

It was held in Tsikata vs Independent Newspapers Publications:

that inaccuracies will not undermine the protective cover of qualified privilege (Times of
London, issue of 29 October, 1994).
In this case, Mr. Kojo Tsikata, then security chief of Ghana sued the London newspaper in
defamation. The action was in respect of a feature article published by the paper. The article was
based on the report of the Special Investigative Board (SIB) which investigated the abduction
and murder of three High Court Judges of Ghana and a retired Army Officer.

The article contained aspects of the report which were unfavourable to Mr. Tsikata but failed to
balance these by also making references to what was in Mr. Tsikata's favour.

In particular, the article failed to indicate that the then Attorney-General had examined the report
and expressed it as his considered opinion that the parts that were unfavourable and which had
been utilised by the paper did not constitute evidence of wrongdoing to justify prosecution for
any offence under the laws of Ghana; and therefore he (that is he Attorney-General) did not
intend to institute any prosecution. The English Court decided that once a publication was
covered by the qualified privilege defence, the defence will not be defeated by inaccuracies
contained in the publication.

(3.) FAIR COMMENT

These are comments or criticisms on matters of public interest, such comments being. made
honestly and without malice. For this defence to succeed, there are three conditions which must
be satisfied.

(1. The first condition is that the comment must be on a matter of public interest. The authorities
for this requirement are:

(a) Seymour vs Butterworth;

(b) Purcell vs Sowler

(c) Boohene vs Abeyie and

(d) Kemsley vs Foor

(2.) The second condition is that the comment must be based on a fact. If you cannot prove the
factual basis of the comment, then the defence may not hold - the facts must be true.
Thomas vs Bradbury:

If the statement on which comment is based contains a defamatory factual statement, this has to
be justified. Comment must be based on true facts.

For example in Kemsley vs Foot:

the comment "Lower than Kemsley" was made in an article in one newspaper condemning the
journalistic standards of the Evening Standard. Lord Kemsley owned newspapers but not the
Evening Standard. It was held by the House of Lords that, taken together, the article plus the
heading cast a slur on the journalistic standards of Kemsley newspapers, this was a sufficient
subtractum of fact on which a comment could be based.

Another example may be the statement: Albert is an opportunist. He has served in every
government since independence." The first part may be considered a comment on the second
part. Provided therefore that you can prove the second part, the defence will succeed. But, if only
the first part is made, then you can only avoid liability by justifying it, that is proving it.

Difficulties where imputation of dishonesty or self-seeking is involved:

In Campbell vs Spottiswoode:

the defendant alleged that the plaintiff's motive in attempting to organise a religious campaign to
spread Christianity among heathens was to increase sales of his newspaper. The defence of fair
comment failed the defendant because he could not establish a basis of fact for the statement

(3.)The comment must be an opinion. The law as expounded in cases such as Boohene vs Abeyie
and Turner vs MGM. Pictures" is that, provided there is a factual basis, opinion is free. In other
words, a defamation action based on an opinion will fail.
In evaluating such statements the courts adopt a stricter test than generally applies to fair
comment. But Lord Denning has said the test should be the same, i.e. whether the defendant
honestly holds that opinion.

In Slim vs Daily Telegraph:

Lord Denning said: Fair comment is available to an honest man expressing an honest opinion
whether exaggerated, wrong or prejudiced.

Recently, the English Court of Appeal held that the defence should be called "the defence of
HONEST OPINION rather than FAIR COMMENT, following the Courts in New Zealand,
Australia and the Republic of Ireland. The Court also felt that scientific disagreements should be
solved through the methods of science rather than through litigation. Otherwise courts would
become ORWELLIAN MINISTRY OF TRUTH: .

(d) Justification (See Order 57, Rule 3(2) and Rule 8 of C.I. 47). This defence means that the
defendant says the publication is true. The defendant must establish the truth of all the material
elements, that is to say the pith and substance of the statement; in other words, that the statement
is substantially true.

In Wakley vs Cooke:

for example, the defendant called the plaintiff a libellous journalist. The defendant pleaded
justification. In support, he proved that the plaintiff had once been found liable in libel. It was
held that the statement made the plaintiff a habitual libeller. This was not justified by proof that
he has once been found liable in a libel suit. So the defence failed.

It must be noted that truth or justification is an absolute defence to common law defamation.
Under English Defamation Act, 1952, where several charges are levelled, proof of some,
provided what is left does not materially injure the plaintiff, will be sufficient for purposes of the
defence. But it must be noted that nothing stops the plaintiff here in this action from relying only
on assertions, inter alia, that the defendant cannot establish.
Example, This defence is bound up with interpretation of statement: (a) X is suspected of fraud -
only fact of suspicion needs to be proved;

X has committed fraud- you have to prove fraud; A film produced by X is vulgar and degrading.
If, on public display at the time - Fair comment. (c)

(b) Consent

A party who consents to the publication of the defamatory matter cannot succeed in an action.

STATUTORY DEFENCES

Libel Act, 1843 (6 & 7 Victoria, c. 96) - Expression of remorse and offer of amends It must be
noted that, by virtue of the Second Schedule to the Courts, Act, 1993 (Act 459), a limited
defence is available under the above legislation. Sections 1 and 2 of the Act allow a defendant at
the first opportunity to express remorse and offer amends. If the plaintiff rejects it, the defendant
can refer to it in his pleadings. The Act requires the court to take this into account in fixing
damages or determining liability. The Act, or the part still in force is a statute of general
application according to the Courts Act, 1993 (Act 459).

See Order 57 Rule 5 of C.I 47 on payment into court as a defence