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FACULTY OF LAW

NATURE AND HISTORY OF TORTS

Introduction.

The course aims at developing the-students’ understanding of elements of the various torts and their
appropriate remedies. This intended understanding is premised on the justification that society is
entangled with prevalent civil wrongs affecting individual interests. It is therefore necessary for the
learner to acquire knowledge of the law governing torts in order to protect these threatened interests.

By the end of the course students' well be able to demonstrate ability to analyze factual situations; identify
torts and tortfeasors, distinguish torts from offences; advice on appropriate remedies as well as defenses to
rise against tortuous claims.

Definition and nature of a tort

A tort is a civil wrong whose liability arises from the breach of a duty primarily fixed J-SS by
law; towards persons generally and is re-derisible by an action for unliquidated damages. In a
nutshell, the law of torts, as a branch of civil law aims at attaining Corrective justice and
distributive justice.

Foundations and Premises of tortuous liability

Wilfred & Jolowie in their authoritative book entitled, Tort, 8 th Edn at page 87, lays down three
broader categories on which tortuous liability may be founded. These are
(1) The consequence of a tortfeasor’s act or omission, where such a person is under
special relationship with the wrong doers may be found liable for acts and omissions of
their servants, under the principle of vicarious liability.
(2) Fault. Liability for fault may be attributed to the wrong intention of the torifeasor, or
purely on negligence of such person. Actions of strictly Liability are also based on fault.
(3) Resultant Burden. Quite a number of tortuous liabilities require proof of a legal injury
(suffering damage) which is directly connected to the defendant’s conduct. Nonetheless,
certain actions such as trespass and libel, are actionable per se (as of right) Nonetheless
certain action such as trespass and libel, are actionable per se (as of right) and need not
require prior proof of actual damage.
In summary, tortuous liability or a right for an action on tort is founded on intention, fault,
vicarious liability, strict liability or statutory liability. These categories shall be discussed later.
Distinction between a tort and a crime.
A reprehensive conduct/wrongdoing leading to prosecution of the offender in a court exercising
civil jurisdiction as a tort and a crime, may at the same time be actionable in a court exercising
criminal jurisdiction as a tort and a crime, if one is to make an informed decision on which
1 is to make an informed decision on which
approach to pursue between a tort and a crime, if one
approach to pursue, between a tort and a crime, where a factual scenario has arisen. The major
distinction between these two terms is in nature /clarification of these wrongs, which gives rise to
further clear distinctions.
(1) Nature of Wrong. A tort is a civil wrong made against an individual by a tortfeasor to
whom law imposes a duty. On the other hand, a crime is a public wrong committed by
 an offender against the state (government).
(2) Aim. The law of torts aims at achieving redressible justice in form of compensation
towards the victim of the wrong with unliquidated damages; while that of a crime is to
deter crime commission through punishment of the offender.
(3) Parties. In a tort, the victim of the wrong will institute an action in his/her own name as
plaintiff against the wrong will institute an action in his or her own name as plaintiff
against the wrongdoer as defendant, while a criminal wrong will be instituted in the
name of the state e.g Uganda vs Matovu Joshua, the accused.
(4) Mode of institution of Proceedings. A tort is instituted in court by a claim statement
while a criminal wrong will be instituted in the name of the state e.g Uganda vs Matovu.
(5) Burden of Proof. A Plaintiff has the burden of proof on his /her tortuous claim, while
the state/Prosecution has the burden. This leaves the complainant with the responsibility
of testifying as a state witness, and no more.
(6) Standard of proof. A tort, like any other civil liability is proved on a balance of
probabilities; while a crime is proved beyond reasonable doubt Any slightest doubt in
the prosecution case is resolved in the accused’s favour.
(7) Limitation of actions.. Ail. Causes of action in tort, .are subject to the law of limitation;
while an alleged commission of a crime can be raised and prosecuted at any time no
matter the passage of time, except where a statute expressly provides otherwise e.g
offences of treason, misprision to treason etc.
(8) Withdraw/settlement of actions. A plaintiff who commences an action in tort is free to
settle or compromise with the defendant. He can thus withdraw his court action; yet
public pokey is against compromise of criminal cases. Any possible withdraw of a
criminal offence is done with the written approval of the Director of Public Prosecutions
(DPP) by way of a nolle proseque.
(9) Result A tort, successfully prosecuted can’ result in a defendant being ordered to meet
damages plus costs; while a criminal conviction can result into a custodial sentence -with
or without a fine.

Distinction between a tort and a breach of contract.

Liability under a tort* is premised on defendant’s breach of a duty owed to the plaintiff, i.e the law lays
down an assumption of responsibility in circumstances in which, but for absence, of consideration would be a
contract. (NoctonvsAshburton [1914] A.C 932). On the other hand only, a party who has furnished
consideration can enforce a promise under a contract.

The importance of the law of torts.

The importance of the law of torts can be analyzed under the following heads i.e the fault principle,
deterrence; and responsibility.

a) The fault principle: Through its fault principle, the law of torts has achieved much success in
obtaining compensation to accident victims.
2 Unlike social security, payments under tort do, not
suffer limits and put into account matters like pain and suffering, loss of amenity, loss of
promotion prospects and extra expenses incurred as a result of die injury, all the claimant need
show in tort is that the injuries as a result of the injury. All the claimants need show in tort is that
the injuries he suffered were caused by defendant’s fault under foreseeable circumstances.

b) Deterrence: The principle that a defendant wrong doer can be called upon to pay for damages
 caused by his fault serves the deterrence purpose, thereby preventing harmful conduct in society.

c) Responsibility:. Through its corrective justice that the person at fault should meet compensation,
this has in a way fostered the duty of responsibility. This deep - seated idea to meet compensation
to victims of civil wrongs has served as a powerful intuitive factor in peoples’ attitudes to
accidents.

The criticism against the fault based tortious system is undoubtedly expensive to administer, compared to
social security. Recovery on a small claim may be attained at colossal legal fees, let alone the lengthy
litigation period.

Kind of torts: the course study will focus on discussion of particular torts such as Trespass to the person,
Trespass to goods, trespass to land, negligence, Occupiers liability, Claims under the law Reform
(Miscellaneous Provisions) Act. Nuisances, liability for escape of dangerous things the rule under
Rylands v Fletcher, Liability for dangerous animals, Defamation and damages.

In discussing each of the above mentioned torts, emphasis shall be put on their respective elements,
remedies and defences.

Trespass. Trespass will be discussed under three major categories i.e trespass to a person, trespass to
goods and trespass to land.

a) Trespass to the person. A trespass to a person. Involves the intentional and direct- interference with
a person’s body or liberty. It is founded on the justification that much as government has an
obligation to enforce criminal law, through the exercise of its powers to arrest, detention and
prosecution; such powers must be balanced with the individual’s inalienable rights and liberties to
freedom. The tort of trespass to a person may take any of the following forms: Assault. Battery.
Wrongful arrest, False Imprisonment, or Malicious Prosecution.

i. Assault. An assault connotes the direction and wrongful act of the defendant which
causes the claimant reasonable apprehension (expectation) of danger. The threat must
have reason to believe that the defendant has capacity to carry out the threat immediately.
Thus in Stephen (1840) 4 C & P,349 ,the defendant advanced towards the claimant with a
clenched / fist after developing a sharp misunderstanding with the claimant at a parish
meeting. His blow was intercepted by a third party before .landing on the claimant’s
body. The claimant successfully sued the defendant under assault. It is no defence that the
claimant was courageous enough to counter the defendant’s attach on him. Mere use of
threatening words does not necessarily constitute an assault. (Mead’s v Belt’s case
91823) 1 Lew.CC184 ER 1006). However, where such words are used recklessly and
have resulted, into nervous shock, an action in negligence may lie against the defendant.
In Wilkinson v Downton [1897] 2 O.B 57. D, by way 'of a practical joke, falsely told C,
a married woman that her husband had met with an accident arid ‘that she was to go with
a cad to fetch him home. The effect of this upon the claimant, who was found to be a
person of normal fortitude, was that she suffered a violent shock. Wright J, observed
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that the defendant had willfully done an act calculated to cause physical harm to the
plaintiffs right to safety, and indeed caused physical harm to her. That that proposition
without more stated good cause for the defendant's liability there being no justification
alleged for the wrongful act.

ii. Battery. This is the intentional and direct application of force to another person under a
 hostile circumstance. In other words, it is an assault carried to its logical conclusion i.e.
the striking of the plaintiff against his will. The least touching of another in anger battery.
A battery thus means any intentional physical contact which is not generally acceptable
in the conduct of human life.

Defences of battery

I. Consent. This can operate as a defence to the tort of battery, with certain limits. Its more
applicable more in cases of medical treatment, in Airedale NHS v Bland [1993] 1 All SR 821,
881; Lord Browne-Wilkinson observed that any treatment given by a doctor to a patient which is
invasive i.e if it interferes with the integrity of the patient is unlawful, unless done with express
consent form the patient or his/her next of kin.

II. Necessity. Necessity presupposes that challenging situation where one is confronted with two
evils. In such a case, necessity is a defence where the choice taken carries the wider benefit to the
victim of the battery. The defence of necessity, is, increasingly by raised-,where/ medical;
treatment administered to adults without their consents. (See: Clovis Njareketa’s case). Also
read (St. Georges Health Care NHS Trust v S (1998.) 3 All ER 763).

III. Statutory authority. In effecting an arrest or a re- arrest;’ a person doing so is authorized by the
Criminal Procedure Code Act, to use reasonable force. If such person be sued for battery, the
defence of statutory authority will be available to him/her.

IV. Self-defence. Where a defendant receives a provocative blow from the plaintiff, he is entitled to
use reasonable' force to repulse or contain such attack, in which case, the defence will be
available. But where the defendant reacts to such attack with a savage retaliation, he will be liable
on battery. (See: Lane v Holloway [1968] 1 O.B 379). The defences of statutory- authority and
self-defence are also available where a defendant is sued under assault.

(iii) False imprisonment. The tort of false imprisonment consists of the complete restriction of
the claimant’s freedom of movement. (Bird v Jones (1845) 7 OB 742). Such restraint must have
been made without lawful excuse or justification,(See: Patrick Mugwanya v Attorney General
HCCS No. 154/2009). In Issa Bukenva v Attorney General [1986] HCB 67.the plaintiff sued
for false imprisonment following his arrest and detention in police custody for 16 days before he
was taken to court. It was held that even if the arrest was lawful, the failure to produce the
plaintiff to court within 24 hours from the time of his arrest to the time he was produced in court
made such detention illegal. His suit succeeded. The tort is actionable per se i.e without proof of
damages.

Defences to False imprisonment

(I) Acting under valid authority. A defendant authorized under a valid warrant to arrest has no
duty to satisfy himself on whether or not allegations. Made against the suspect are credible,
but to arrest. If then sued for wrongful arrest and false imprisonment, he can successfully
raise the defence of authority. Equally
4 so a private person who acts on reasonable suspicion,

can arrest, without suffering any liability.' (See:' Charles Lubowa v Kalvango& 3 Ors.
HCCS No. 1141/1987).

(II) (II) Justification and necessity. In Thames Valiev Police v Hepburn.fyy[2002] EWCA
Civ. 1841, Sedley LJ, observed that it is the bedrock of civil liberties that a citizen’s freedom
 of person and movement is inviolable except where the law' unequivocally gives the state
power to restrict it. If a person obstructs a police officer in execution of his duties an offence
is committed and the power of arrest arises. That and not an implied power of arrests arise.
That, and not an implied power to detain or manhandle people who are doing nothing wrong,
is how the law protects 'officers executing a search warrant' from' interference. The defence
of necessity was invoked successfully in Austin v Commissioner of Police of Metropolis
[2005] EWHC 480. In this case, the police while suppressing an unauthorised demonstration
involving thousands of people in central London sealed off the area around Oxford Circus and detained
hundreds of people for a period of hours, under non-conducive conditions. Court held that the acts of
the police were not wrongful hut intended to prevent serious injury and possible death to
persons for whom they were responsible.Also see: Fernandes v Commercial Bank of
Africa Ltd &Anor. [1969] E.A 482.
(III) Reasonable condition. This can be a defence where parties-have a contract and .that
claimant desires to take his way before fulfilling the contractual duties towards the-other.
(Robinson v Balmin Ferry Co. Ltd [1910] A.C 295).
(IV) Malicious prosecution. The tort of malicious prosecution is premised on five ingredients: (a)
that the defendant prosecuted the plaintiff (b) that proceedings in the criminal prosecution
ended in the plaintiffs favour, (c) that there was no reasonable or probable cause for the
prosecution, (d) that the defendant was actuated/driven by malice, and (e) the defendant
suffered damage (Yusuf Khanbhai v Wm.O’swald & Co. & Anor. 15 K.L.R 53. Bukenya
v AG (1986) HCB 76) The damage envisaged here may take any of the three categories,
viz ,damage to the plaintiff fame through scandalous accusations, Damage to plaintiff’s
person e.g where he has been imprisoned and damage to the plaintiff’s e.g where plaintiff has
put to charge and expenses (See Berry v BTC (1962) 1 Q B 306).
(V) The defendant initiated a Prosecution. The defendant indirectly acts through government
agents/official e.g the police, to set the official process into motion. Normally, merely
providing information to the prosecuting authority would not be enough to give rise to
liability on malicious prosecution. The circumstances must be that facts in question could be
known only to the defendant, and this has seriously impaired the prosecutor’s discretion
where the information was provided falsely and maliciously. (See: Martin v Watson [1996]
1 A.C 74).
 The prosecution failed. The prosecution must end with the claimant’s, Acquittal.
 Absence of reasonable cause. A reasonable cause is an honest belief in the guilt of
the accused based upon a full conviction, founded upon reasonable grounds, of the
existence of a state of circumstances, which assuming them to be true would
reasonably lead any ordinary prudent and cautious man, placed in the position of the
accuser, to die conclusion that the person charged was probably guilty" ot the crime
imputed. (Herniman v Smith [1938] A.C 305).
 Malice. This refers to defendant’s bad motive other than to secure ends of justice.

5
Defences to malicious prosecution. These are: acting without malice; acting on reasonable cause:
conviction of the claimant on the preferred charges; and independent act of the prosecution .

Remedies for trespass to a person.

These include special damages, General damages and sometimes exemplary damages.
  Special damages: These are -not .presumed..They: are losses which are awarded at die court’s
discretion. The claimant must plead and prove. Special damages suffered before they are
awarded. They arise whereby a plaintiff suffers financial loss e.g on medical bills as result of the
defendant’s actions, or where he suffered loss of earnings still as a result of the defendants
wrongful actions .Documentary evidence is essential though oral evidence can also suffice.

 General damages: These are' presumed to flow from the defendant’s conduct. They are.
Awarded as of right. Court will exercise discretion at fixing the quantum.

 Exemplary damages: -These are deterrent in nature and are given to serve as an example where
die defendant has acted with highhandedness towards the t plaintiff in utter disregard of his
human rights. In Samuel Kaggwa Byekwaso v Attorney General [1982] HCB 101, the plaintiff
was detained for 15 months, violently treated and sometimes- denied food. Court held that he was
entitled to exemplary damages.

 Trespass to Goods. This involves the direct and wrongful interference with, the goods of another.
The plaintiff must have been in possession of the subject goods; though he need not be their legal
owner. The claimant must also have a right to immediate possession of the goods. There are two
types of trespass to goods; i.e conversion and detinue.

 Conversion In an action for conversion of goods, a claimant sues for the denial of his entitlement
to possession of the goods; or an assertion of a right inconsistent with his right, and not
necessarily for disturbance of his factual possession of the same. (Bwavu Mpologoma Grower’s
Coop Ltd v Gasston &Ors.E.A.C.A No. 9/1959). Any chattel can be the subject .of conversion.
Liability, on conversion is strict.' What is essential to prove is the defendant’s intention to do the
act and not the intention to bring about the consequence. There must be an act of some land; an
omission will not suffices. In Ashby v Tolhurst [1937] 2 K.B 242, the attendant at a car park
allowed a stranger to take away the plaintiffs car. The employers were held not liable for
conversion. Their servant though negligent had done no act. Other defences under conversion
include: the exercise of a right for distress, or where goods are sold in a marker overt. Here a buyer who
without notice of the seller’s defect in title honestly buys the goods 1 will: receive a good title/as'
against' the claimant. The remedies for conversion is damages assessed at the market value of the
chattle . (Thawer v Clark 12 K.L.R 22). The claimant is however under a duty to mitigate his
loss. Also, self-help is permissible as long as peaceful and does not involve no more force than is
reasonable. Finally the owner of drained goods who claims that distress was wrongful is entitled
to have to return the goods to the Tatter, at: the- hearing, if court so directs this remedy is termed
replevin.

(ii) Detinue. This is wrongful withholding of the chattels of another. The essential elements to
prove are that (a) plaintiff is entitled to possession, and (b) that the defendant has kept
determining the goods after the plaintiff has makes a demand for their return ( Gullen v Parsram
& Anor. (1962) E.A 159.

Defences for Coversion & detrine 6

 Lack of possession. Where the original taking of the property was lawful but the same is either
lost or destroyed by defendant at the time the plaintiff makes a demand for the return of property,
lack of possession is good defense.(Charles Dough Cullen v parsram & Anor.[1962] E A
159).
  Absence of a demand. A plaintiff who fails to make a demand for the return of the property prior
to suing cannot succeed.

Remedies for Detinue and conversion

 An order for restitution. This can be made where the property withheld under by the defendant
is still under a good state.

 Damages. These can be special, general or exemplary depending on the circumstances of each
case.

(c) Trespass to land. Trespass to land is the unjustified interference with the possession
of land. In other words, it is the unauthorized entry upon the soil. Here the law of tort
jealously guards the right of enjoyment of private property. Trespass to land is actionable
per se. It is strict liability tort as neither mistake; nor inadvertence will afford a defence.
To maintain an action for trespass to land, the plaintiff must prove that at the time of the
’defendant's trespass, he was in actual possession of the land or had assumed a
reversionary right (right to possession as owner), of the land; and that the defendant’s
interference was intentional. (Khatibu bin Mamadi v Issaji Nurbhai 4 Z.I..R 55). For
avoidance of doubt, lodgers and domestic servants cannot commence an action in trespass,
but rather the right accrues to tenants under. _ leases as. Well as registered-proprietors’ in
possession; Trespass' to land is a continuing tort and gives rise to actions from day-to-day
as long as it lasts.
Defences for trespass to land,

 Licence. This is the express authorization to enter ana use ones’ land, for an agreed
period of time.
 Justification by law. Public officers like soldiers on war, can enter ones’ land
without causing liability in trespass on government
 Claim of right, e.g by a bonafide purchaser for value, without notice;
 Good Motive, e.g where a defendant enters to prevent the spread of a nuisances to
his land.
 Mistake.

Remedies for trespas to land are;

An action for:

 Recovery of land (ejectment)

 Re-entry.

 Mesne profits.

 Permanent injunction restraining the defendant, his servants and or agents against any
7
future trespass.

 General damages for trespass.

Negligence: (Duty and Breach)

Negligence as a tort is based on the fault principle; Negligence is breach of a legal duty to take care owned by the
defendant to the plaintiff which results into damage undesired by the plaintiff. The ingredients of negligence are :
i. A legal duty on the part of the defendant to plaintiff to exercise care in such conduct or
action within the scope of his duties.
ii. Breach of that duty
iii. Consequential damage to the plaintiff.

According to Brown Lj,: Thomas v Cuartennine (1898) 8 O.B 685.

There is such thing as negligence in the abstract. Negligence is the neglect of some care which one is
bound to exercise towards somebody, hence there can be liability for negligence unless in particular case,
the defendant was subject to a legal duty to take care. What then does duty means?

Duty means restriction of the defendant’s freedom of conduct and the particular restrictions here is that of
behaving as a reasonably careful man would behave in the like circumstances. The question to be
determined is whether a prudent and reasonable man would in the like circumstances have behaved in like
circumstances have behaved in the manner the defendant has done. Moreover, the defendant must owe
this duty not merely to persons generally, but to the plaintiff in particular.

The question whether in any particular circumstances a duty of care exists is a question of law. There is
no standard principle from which it can be deduced that of care does or not arise.

In Denoghue v Stevenson (1932) A.C 562. Lord Arkin gave the following test as a general guide.

You must take reasonable care to avoid acts or omission which you can reasonably foresee would be
likely to injure your neighbor. Who then in law is your neigbour? The answer seems to be persons who
are closely and directly affected by my acts that I ought reasonably to have them in contemplation when I
am directing my mind to acts or omissions which are called in question.

Persons using the Highway and other places frequented by public

Every person using a highway owes a duty of care towards other persons on the highway. The rule applies
equally to other places such as Taxi parks, Railway stations; etc the duty arises from the close proximity
of people and things in such places which makes it necessary for all persons to be mutually careful.
Accordingly, a person on highway or market place is liable in negligence if he fails to exercise due care
so that some other person is injured or his property damaged

Causation, remoteness i.e. Scope of liability and Contributory negligence.

 Causation and Damage.

Where damage results from multiple causes, the courts resort to the test of but for cause ‘This notion is. Based on the
view that the defendant should be liable only to the extent that his conduct was a condition of the claimant’s hurt /
injury.

 Proximity/ foreseeability. A plaintiff in negligence must show that the particular -injury he suffered was
foreseeable and that the injury was brought about
8 in a foreseeable manner.(See: Namyalo v Ratanshi [1968]
E.A 14: Mustafa Lule v West Buganda District Administration [1971] U.L.R 126). In Overseas Tankship
(U.K) Ltd v Morts Pock and Engineering Co. Ltd [1961] A.C 388, court emphasized this position when it
laid down the rule that the essential factor in determining liability. ‘on negligence is whether the damage is
of such a kind as a reasonable man would have foreseen; and further that a man should never escape
liability however indirect the damage, if he foresaw or could have reasonably foreseen the intervening
 events which led to its being done.

Kinds of damages: These can be physical bodily harm and damage to property or psychiatric injury and
illness.

(a) Physical harm law of negligence recognizes a general duty of care protecting the personal
safety and tangible property interests of the claimant. In MarcFarlane v Tavside Health
Board [200] 2 A.C 59 the plaintiff sued for pain and suffering she underwent when she
had a scission birth, as a result of an unexpected pregnancy following a failed vasectomy
operation carried out on her husband. Her claim succeeded in part.
(b) Psychiatric injuries and .illness (Injun without impact). This category involves primary victims
as well as secondary victims. A primary victim is one who suffers the injury after being
directly involved in an accident and is either himself physically or put in fear of injury. As
a rule of law, such victim is entitled to recover subject to the rules of causation and
remoteness^ of damages. (Page v Smith [1996] 1 A.C 155). In this case, a
defendant',Driving, Carelessly, caused a collision between his car and that being driven by
the plaintiff. The latter, dough sustained no physical injury later suffered a reaction which
led to a revival of an ME condition { myalgic encephalomyelitis); which left him ,chronically
ill and . Unable, to work. His suit succeeded. ’ In Dulieu v White & Sons [1901] 2 K. B
669.the plaintiff a pregnant woman was seated behind die counter of her husband's bar;
when suddenly a horse was driven into the bar. Fearing for her personal safety, she
suffered nervous shock and gave birth to a pre mature baby. The defendant was held liable
in negligence. On the other hand a secondary victim is a person who suffers psychiatric
injury a consequence of witnessing or being informed about an accident, involving
another. In Alcock v Chief Constable of South Yorkshire [1992] 1 A.C 310.relatives -
and friends of spectators who were crushed to death inside a football stadium its a result of
polite negligence brought actions for damages based on psychiatric illness suffered in
reaction to the event. Some had witnessed the scene at the ground while others had
watched it transmitted live on' national television. Many victims suffered inability or
difficulty in carrying out normal life activities such as normal work, family responsibilities
or any activity they would have normally engaged in before the disaster. Others underwent
personality changes such as being moody, irritable forgetfulness, frequent unprovoked
outbursts of anger and quarrelsomeness. The court laid down the test, that to succeed a
secondary victim as plaintiff had to prove that (a) his illness or condition was caused by a
‘shock’ of some kind; (b) that he either witnessed the event directly or came upon its aftermath;
and (c) that his relationship with the victim was sufficiently proximate’. In Harnbrook Stokes
[1925] \ K.B 141. The defendants left their lorry at the top of a steep hill. Soon it began to
run away down the hill. The plaintiff s wife who had left her children around the corner,
on seeing this, developed a severe nervous shock for fear of her children's safety and as a
result, she died. It was held that the defended was liable. Contrast the above cases with
Bournel v Young (1942) 2 ALL ER 396.
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c) Pure economic loss. These losses have no connection to Personal or physical harm but include
financial loss or expenditure incurred as a result of the defendant’s negligence, interruption to
an expected stream of income such wages or rents or failure to make gain as expected form a
valuable contract or from an expected legacy under a will. Liability on economic loss may
result from following categories,: Negligent misstatements, Negligence in the performance of
 a service, Loss arising from defects in buildings and products, Relational economic loss arising
from damage to property of a 'Third Party' etc.' Of these all, the law still places greater
concern on liability for misstatements as is laid down in Healey Bryne& Co. Ltd v Heller &
Partners Ltd [1964] A.C 465; and liability on negligence in performance of a service as laid
in Henderson v Merret Syndicates Ltd [1.9951 2 A.C 145. In this case court observed that
if a person assumes a responsibility to another in respect of certain services, there is no
reason why he should not be liable in damages for that other in respect of economic loss
which flows from the negligent performance of those services. That all what a plaintiff must
prove is existence. of a 'special relationship’ between him and the defendant. The court will
then impose a duty of care on the fair, just and reasonable'' grounds. In Smith v Eric & Bush
(A Firm) [1989] 2 A 11 ER 514. a valuer who valued a house for a building society or local
authority for the purpose of a mortgage application for a typical house purchase, knowing that
the mortgage would probably and the mortgagor, would certainly rely on the valuation, and
knowing that the mortgagor was the intending purchaser for the house and had paid for the
valuation, owed a duty of care to both parties to carry out his valuation with reasonable, skill,
and care,, He was a "professional man on whose skill all the parties placed their reliance.
Proof of negligence.

The onus of proving negligence lies on the plaintiff. He must prove not only that the defendant was
negligent but that .the defendant’s negligence was the cause of the injuries he suffered. This uphill task
has been made easy by the res ipsa Loquitor rule.

Res ipsa `Loqultor.

This is a rule-of. Evidence and not law. Ordinarily a plaintiff under seeking to recover a tort of
negligence has a duty to set out particular facts on the defendant’s negligence. Where a plaintiff is
unable to do this, he will rely on the principle of res ipsa Ioquitor, to establish the defendant’s
negligence. The rule simply put is that ‘facts speak for themselves’ thereby leading an inference to the
defendant’s negligence. It is usually invoked where the thing alleged to have been the cause of the
accident was under the sole control of the defendant be it directly or through his servant/agent.
(EmbuPublic Road Sendees Ltd v Jemima Riiml [1968] E.A 22), In Scott v London & St.
Catherine’s Dock Company [1865] 3 H C 596, the plaintiff was a customs officer doing his
rounds.11WheE he passed: the defendant’s ware house six bags of sugar fell on him. The defendant
could offer no explanation as to how the accident happened. It was held that there was reasonable
evidence of negligence. In Byreness v Boadale [1863] 2 H C 722.the plaintiff was walking on a public
street when a barrow of flour fell from an upper floor through the window of the defendant’s house and
injured him. It was held that the accident was prima facie evidence of negligence to cast on the
defendant the burden of showing how the accident could have occurred if it was not by his negligence.
In Walsh v Holst & Co. Ltd [1958] 1 W.L.R 800, a building was being demolished and die plaintiff
who was 'walking on the road was hit on the head by a brick. There was no evidence to show how it
had happened. It was held that res ipsa loquitor operated to shift the burden of proof on the defendant
1
Since the defendants were able to show that they had exercised all due diligence, court absolved them
0
from liability on negligence.

Defences for negligence.

Plaintiffs trespass, at a prohibited place. In Vidian &Anor v British Transport Commission [1963] 2 All
E.R 860.an infant plaintiff sued for injuries sustained while on a railway line, by the alleged negligence
of the defendant’s servant, then driving s motor trolley. There was a prohibition against non-staff -
members walking at the point where the plaintiff suffered, the injuries from. It was held that the plaintiff
was a trespasser, and could not succeed against the defendant.
Volenti non fit injuria This plea is to the effect that no injury is done to one who consents. In other
words it can be raised against a plaintiff who takes no regard to the safer/ of his life by opting to
assume an eminent danger. It is thus a defence to: (a) actions brought by spectators injured while
attending dangerous- sports; (b) actions arising from injuries to workers in specially dangerous
professions; and (c) actions brought by passengers injured by their Intoxicated drivers. In
Khimii&Anor.vTanga Mombasa Transport Co. Ltd. [19621 E.A 419 appellants as
administrators of estates of the deceased claimed, damages under the Law Reform (Miscellaneous
Provisions) Ordinance or, Invoked where the thing alleged to have been the cause of the accident
was under the sole control of the defendant be it directly or through his servant/agent. (Embu
Public Road Sendees Ltd v Jemima Riiml [1968] E.A 22), In Scott v London & St.
Catherine’s Dock Company [1865] 3 H C 596, the plaintiff was a customs officer doing rounds.
When he passed: the defendant’s ware house six bags of sugar fell on him. The defendant could
offer no explanation as to how the accident happened. It was held that there was reasonable
evidence of negligence. In Byreness v Boadale [1863] 2 H C 722.the plaintiff was walking on a
public street when a barrow of flour fell from an upper floor through the window of the
defendant’s house and injured him. It was held that the accident was prima facie evidence of
negligence to cast on the defendant the burden of showing how the accident could have occurred
if it was not by his negligence. In Walsh v Holst & Co. Ltd [1958] 1 W.L.R 800, a building was
being demolished and die plaintiff who was 'walking on the road was hit on the head by a brick.
There was no evidence to show how it had happened. It was held that res ipsa loquitor operated to
shift the burden of proof on the defendant Since the defendants were able to show that they had
exercised all due diligence, court absolved them from liability on negligence.

Defenses for negligence.

Plaintiffs trespass, at a prohibited place. In Vidian & Anor v British Transport Commission [1963] 2 All
E.R 860 an infant plaintiff sued for injuries sustained while on a railway line, by the alleged negligence
of the defendant’s servant, -then driving s motor trolley. There was a prohibition against non-staff -
members walking at the point where the plaintiff suffered, the injuries from. It was held that the plaintiff
was a trespasser, and could not succeed against the defendant.
Volenti non fit injuria. This plea is to the effect that no injury is done to one who consents. In other words it
can be raised against a plaintiff who takes no regard to the safer/ of his life by opting to assume an
eminent danger. It is thus a defence to: (a) actions brought by spectators injured while attending
dangerous- sports; (b) actions arising from injuries to workers in specially dangerous professions; and (c)
actions brought by passengers injured by their Intoxicated drivers. In Khimii & Anor.vTanga
Mombasa Transport Co. Ltd. [19621 E.A 419 appellants as administrators of estates of the deceased
claimed. damages under the Law Reform (Miscellaneous Provisions) Ordinance, on behalf of the
deceased’s estate. behalf of the decease's estate.
1
The deceases were travelling on the bus of the
respondents. On reaching the bank of a swllen 1river, the driver of the bus on which the deceases were
travelling refused to attempt to cross. The passengers got off and transferred to another larger bus still
belonging to the respondents. Its driver made a- first : attempt to cross,- but found it unsafe. He urged the
passengers to get off the bus but instead they urged him to continue like the other bus in front of him
which has succeeded crossing. He thus made another attempt but the bus stuck a submerged object,
lulling all the passengers on board. The respondents raised a defence of volenti non fit injuria. In
upholding the same court observed that if die passengers fully appreciating the risk, nevertheless desired
to incur it to avoid inconveniences to themselves, they are deemed to have waived the carriers duty in
relation to a particular act and accepted the ordinary risk attendant to it.
 Success of the defence of volenti non fit injuria, In order to succeed, the defendant must
prove (a) -that there was an express or implied agreement between the plaintiff and the
defendant, by the plaintiff to run a risk of injury caused by the defendant; and (b) that the
plaintiff then assumes the risk knowingly that the loss will fall on him. (Mohamedi
Mitha & Anor v Sant Singh Jandu CS No. 574/1962 & CS No. 600/19621.
 Contributory negligence. This plea is to the effect that the plaintiff was equally at fault;
otherwise he wouldn’t have suffered injuries. The effect of this defence is to minimize on
the defendant, as same will be reduced ; to the-extent of his contribution .to the
occurrence of the accident/wrong complained of. In Yosefu Musisi v National Water
& Sewerage Corporation (NWSC) HCCS No. 149/1973.the plaintiff through his next
friend, sued the defendant for injuries he sustained when he fell into a trench dug by the
defendant’s servants. At the time of the accident, the plaintiff was aged four and a half
years. The trench was two meters long and had not been covered for the last 6 months.
For the
Plaintiff it was contended that the defendant did not put any wooden pieces or fill in earth yet -it
was near the home of the plaintiff; though the defendant claimed that the plaintiff was
contributory negligent. It was held that the whole situation indicated incompetence and
negligence on the part of the defendant. They had a duty to reduce on the amount of
inconvenience and to
 the danger to the public to minimum levels. That in order to find a child contributory
negligent, it had to be proved that he failed to show the amount of care expected of a child
of his age. If the child was incapable of realizing the consequences of his conduct, he would
be relieved from liability on being negligent .particularly if he indulges /into the natural
instincts of-a child--of his age. In the case of Dickson v Bell (1816) 5 H & S 198.the
defendant sent his servant a girl of 13 years to fetch a loaded gun, which the defendant kept
in the house where he stayed. He sent a message to the landlord asking him to ' remove the
priming before he let the girl have the gun. The landlord did so but the removal of the
priming was not sufficient to render the gun safe. The girl pointed the gun at the plaintiff’s
son, a child, of 8 years; and pulled the trigger. The gun went off and the child was injured.
It was held that the defendant was liable. In Phillipo Munvampirwa v Associated Match
Company HCCS No. 341/1970, the plaintiff brought a suit against the defendant alleging
negligence on the part of the defendant's driver. The plaintiff’s leg had been fractured when
the defendant's lorry loaded with logs of wood collided with a tree; and one of the log fell
onto the plaintiffs leg. The plaintiff who was a defendant’s employee had participated in
loading the logs on the lorry and very weak ropes had been used. It was inter a lia held that
the fact that the plaintiff used old and weak ropes without demanding for strong ropes,
1
contributed to the injuries suffered by
2 him. That the plaintiff was therefore 50%
contributory negligent.
 The doctrine of alternative danger. A man .may be taking, reasonable .care, for his own
safety also later events may show that he would have been safer had he acted differently.
Where a plaintiff is suddenly put in a position of danger by the wrongful acts of the
 defendant, then by the doctrine of alternative danger, he is not required to show more
judgment and self-control in attempting to avoid danger than might reasonably be expected
of him in the circumstances. Thus what is done or not done in the agony of the moment
cannot be fairly called contributory negligence. But in such circumstances, a • person must
exercise care any reasonable man would. In YakoboOkole v Nsubuga [1974] HGB 186. -
the plaintiff who was a tone-by sustained injury when he jumped off an over loaded lorry
when said lorry staggered as if to fall down. The defendant denied negligence, contending
that the plaintiff was contributory negligent. It was held that even if the plaintiff had
jumped off the lorry when it was about to fall or lean against the road, as the defence
maintains, the plaintiff could not have been guilty of contributory negligence. The doctrine
of alternative danger or agony of the moment could still apply in his favour. Also read:
Saver v Harlow[1956] W.L.R 623.
 Intervening natural event (Inevitable accident). This borders on real misfortune i.e that without
the fault or negligence of the defendant, an event still occurs resulting into damage to the
plaintiff. It involves a supervening event to the extent that no amount of care expected of a
reasonable man would have saved the situation in the circumstances.
 Intervening act of a third party (nova causa interveniens').This arises where the defendant’s
breach of duty does no more than provide the occasion for an entirely independent act of a third
party and if that act is the immediate cause of the plaintiff’s damage, then the defendant is not
liable. (Weld Blundell v Stephens [1920] A.C 956).
Vicarious liability.
The principle of vicarious liability;' was developed from the law of agency. The common maxim here
is that he who works through others work for himself. Accordingly, a third party who has done no
fault can never the less be found liable for the tortious acts and omissions of another who stands in a
special relationship with him e.g employee employer relationship. To succeed under vicarious
liability, the plaintiff must show that the alleged, servant was under the control and bound to obey the
orders of the alleged master at the time he occasioned damage to him. Simply put, the claimant must
prove (a) that the injury I damage suffered by him was occasioned by the defendant’s servant or agent; (b)
that such servant or agent was at the time he inflicted damage on the plaintiff acting within the ordinary course
of his employment. It is immaterial that the defendant had directed the servant not to do the act. In other words,
liability with attach to the defendant even if the servant does something wantonly for his own purpose (Piovano
v Attorney General of HCCS No. 373 /1963; Muwonge v Attorney General of Uganda [19671
E.A 17; Pate] & Anor v Tandree & Anor.[19361 K.L.R 8). Also read; West Nile -District
Administration v Dritto [1969] E.A 324: on the four question test- in determining whether an
r
employee-emipoyer relationship exists between the, actual tortfeasor and the defendant.
^

Defences to an action under vicarious liability.

• Employees floric of bis own. This is a total defence where the defendant employer can show that
though his servant, the tortfeasor committed the wrong when he was not in the ordinary course of
1 ordinary defences to negligence as discussed above
the master’s employment ® Besides, other
3
are also available to the defendant.

Nuisance.

The word nuisance is derived from a French word, ‘nure’ which means, to hurt or annoy. Nuisance
has also been defined as anything done to hurt or annoyance the land, tenements or hereditament of
another and not amounting to trespass to land. According to Winfield & Jolowitz on Torts, 8thEdn a
nuisance is described as the unlawful interference with a person’s use or enjoyment of land or some
right over it or in - connection with in The tort is committed, whenever a-person is wrongfully-
disturbed in the use and enjoyment of his land. Generally, it arises from the duties owed by
neighboring occupiers of land.

No one should use his land which is likely to affect his neighbor’s use of his land. Although a tort
of nuisance is usually committed only where the plaintiff and defendant are owners or occupiers of
land, in certain circumstances, it can be committed in places like a highway, or even a river.

There arc two types/kinds of nuisance; Private and Public.

Private nuisance:

A private nuisance is committed where a person’s private rights in his land are wrongfully disturbed;
whether physically or by allowing noxious things to escape onto his land. Thus it is a nuisance to
obstruct an easement or to allow- a weak structure to dangerously hang above another’s land, or to
allow7- smoke, noise, gas, fumes escape onto the plaintiffs land thereby inconveniencing him. In
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 K.B 468.the plaintiff was a breeder of silver
foxes which were very sensitive to any disturbances during breeding seasons, the defendant way
developing neighboring- lands as: a housing estate ;and thought that the plaintiff’s business might
disturb his customers. He instructed his son to fire a gun near the fox cages. The son did so .After
four days, the plaintiff sued the defendant for committing a private nuisance. It was held that the act
of the defendant through his son amounted to a nuisance.

1
4
 A private nuisance affects some particular individual or individuals as distinguished from the public
at large. It consists of some unauthorized user of a person's own property which causes damage to the
property of another or some unauthorized -interference with another’s enjoyment of his property,
causing damage. The essence of 'this tort is the damage it causes to the plaintiff. However, no action
shall He in respect of damage which is so trifling that the average person will complain of. The maxim
is dejminimis non curatlex, which means that the law does_ not concern itself with very slight things.

The law of nuisance is based on, maxim that use your own property that you cause no harm to
another. The test whether a defendant has committed a nuisance, is whether or not he has acted
reasonably. In this regard, a balance has to be struck between the right of the occupier to do what he
likes on his own property-and that of his neighbor not to be interfered with. It is impossible to give any
precise or universal fomula but it may broadly be said that a useful test is what is reasonable according
to ordinary usage of mankind in society. In St. Helien Smelting Co. Ltd v Tippings [1865] A bought
an estate in die neighborhood where many manufacturing works were carried on. Among others were
works of copper smelting. It was not proved whether or not those works were in actual operation when
the estate was bought. The vapours from those works when they were in operation were proved to be
injurious to the trees on A’s estate. It was held that A was entitled to damages even though the area was
full of similar factories.

Public nuisances.

Public nuisance is a wrong against the public either by doing a thing which tends to bring annoyance to
the general public or by neglecting to do anything which the common good requires. It is an act
affecting the public at large or some considerable portion of it

A public nuisance is also known as a common nuisance. It affects the comfort and

Public nuisance is also known as a couiaion nuisance. It affects the comfort and convenience of a class
of persons but not necessarily every member of the public. Thus, obstruction of a highway is public
nuisance. A music festival accompanied by large scale noise is also a public nuisance. It is also a public
nuisance to do any act which is a source of danger to the public. e.g releasing a large quantity of fuel on
the road. In Amina Nantongo v Hiral Muhammed [1975] H.C.B. the driver of a petrol tanker belonging
to the respondent had driven it to BP depot in Industrial Area where it was filled with petrol. He then
proceeded to his employer’s office to collect customs documents as the petrol was destined for Rwanda.
On his way, he stopped and parked the tanker off the tarmac at the side of Kisenyi Road in Nakivubo in
order to pick some rice he had left for milling. Although there was no rain on the morning of the accident,
there were pools of water from an earlier rain. ‘There 'were some garages around carrying on the
wielding, but there were no wielding activities going on at that time. When the driver returned, he tried to
start the motor vehicle but it was stuck in the mud. The driver was unable to get the tanker out and
consequently, petrol escaped due to the driver’s effort to start the vehicle. More than 40 minutes elapsed
between the start of the leakage and the outbreak of the fire on die petrol which was caused by a man who
had deliberately stuck a match box. He had been prevented from stealing petrol by fire men. It was held
1
that an act whether in itself criminal or not constituted a public nuisance if it caused injury or damage or
5
annoyance to the public or obstruction in the exercise of common rights.

Therefore, a public nuisance is any act or omission which endangers the lives, health, safety or comfort of
the public or by which the public, or some considerable section of it arc obstructed in the exercise of a
common right. Ordinarily, actions for public nuisance are brought by the Attorney General against the
wrongdoer. However, an individual can bring an action in public nuisance if lie can show that either he

has suffered a particular injury beyond that which has- been suffered by the rest of the public. In the case
of Soltau v Deheld [1851] the plaintiff resided next to a Roman Catholic Chapel. The defendant a priest
took it upon himself to ring the chapel bell throughout the day and night. The plaintiff brought an action
in nuisance to stop it. It was held that the ringing of the bell was a public nuisance but since the plaintiffs
house was next to the Chapel, he suffered more than the rest of the community and was therefore entitled
to bring an action to stop it.

Generally a nuisance is actionable if it is a continuing wrong. A disturbance or inconvenience on an

isolated occasion will not ordinarily be treated as a nuisance. In Bolton v Stone [1951] A.C 850, plaintiff
while standing on the highway just outside her home was injured by a cricket ball struck from the
defendant’s ground which adjoined'the highway. The ground had been used for cricket for over 80 years
and it was very rare for balls to be hit over the fence, which was 10 feet high above the highway. The ball
had travelled over 100 yards before hitting the plaintiff. It was held that the act of hitting a cricket ball
onto the highway in circumstances like those in the case could not amount to a nuisance.

The plaintiff in a nuisance. For the plaintiff to succeed in a nuisance, he must show that he has title to
or at least some interest in the property which is alleged to have been damaged or whose enjoyment is
alleged to have been affected by the nuisance otherwise, the action will not succeed. In Kalone v Lasckev
[1907] 2 K.R 144, a bucket supporting a water tank in the house fell down by reason of vibrations caused
by the defendant’s engine in adjoining premises and the plaintiff was injured. The plaintiff had no interest
in the premises. She merely resided thereon with her husband who was a manager of the company that
had leased the premises. It was held that, the working of the engine was a nuisance but the plaintiff could
not recover any thing as she had no interest in the premises.

The law of nuisance protects only normal and ordinary persons. A plaintiff, who is abnormally sensitive
e.g because of old age, has no special protection and cannot recover in nuisance for injury which a normal
person would not have suffered. Similarly, a person who has put his premises to a trade which is delicate
or abnormality sensitive cannot recover in nuisance. In Robinson v Kilkert [18891 41 Ch. D. 88, the
plaintiff carried out an unexceptionally delicate trade in which he used an unequally delicate stock of
paper. The stock paper was-damaged by the heat from the: defendant’s, premises below. It was held that
the plaintiff could not recover in nuisance as the damage would not have occurred if he were carrying on
an ordinary trade and in any case the defendant’s use of his property was reasonable.

The Defendant in nuisance.

The person liable in nuisance is primarily the occupier of the premises which are the source of the
nuisance including a tenant. Liability does not necessarily fall on the owner of the premises although he
may be successfully sued. In the case of Mint v Good [1951] 1 K-B 517, a boy of ten years was walking
along a public footpath when from which the wall collapsed had let the premises in question to a tenant.
Bug the plaintiff sued the owner of the premises himself. It was held that the defendant was liable.
1
Adopted nuisance. 6

When a nuisance is caused by one person but is adopted by another, the person so adopting it is liable and
cannot plead that the nuisance was not created by him. In Sedleigh-Denfield v Ocallaghan [1940p
A.C2886, a trespasser- placed a pipe into aW ditch which was on the defendant's land without the
defendant's knowledge or consent. The pipe was meant to carry off rain water and all its down wash.
When the defendant became aware of the existence of the pipe, they used it to draw their own field.
Subsequently, the pipe became blocked and the water overflowed onto the plaintiffs land. It was held, that
the defendants were liable in nuisance because they had adopted the trespasser’s act as their own.

Defences in nuisance.

 Prescription. A prescription right to continue ‘a nuisance is acquired after 20 years, under common
law.
 Reasonable use of property. See: Robinson v Kilkert, the defendant has to prove that he has used his
property reasonably and not maliciously, otherwise, the defence will not apply.
 Deminims/toncuratlex. If the damage is so minor or trivial, the plaintiff will not recover.

Remedies for an action in nuisance

 Abatement/stopping of the nuisance. This is the removal of the nuisance by a party injured. The
removal must be peaceful, without danger to life or limb, and upon prior notice to the land owner
to which an entry is desired.
 Damages. The principle applicable to case of nuisance is whether the defendant inhured his
neighbur. The measure of damagesis the devaluation of the property in consequence of the
nuisance. The plaintiff must prove some special damages. In Davy v Harrow corporation
[1958] 1 Q.B 60, the plaintiff’s house was damaged by the penetration of roots from the
defendant’s trees on the adjoining lands. The plaintiff’s action for damages in nuisance
succeeded.
 Injunction. In order to obtain an in junction, it must be shown that the injury complained of is
present or impending or is such by reason of its gravity or its permanent character cannot be
adequately compensated for by damages. See: ChritievDaw [1893] 1 Ch.D 316.
Occupiers liability.

An occupier of premises is liable if persons suffer injury by reason of defective or dangerous state of
premises on such person's premises. These persons fall into three

Categories:

(a) Licensees and guests.

(b) Invitees and customers; arid
(c) Trespassers.

Licensees.

A license is a person who enters premises under a license, express or implied from the occupier e.g a
guest is a license. Similarly, persons who enter premises to solicit for orders or to beg or to hold any
communication with the occupier is a licensee. When a licensee is injured on the land occupied by the
licensor, he can only maintain an action against
1 his licensor when the danger through which he
7
sustained the injury was one which the licensor knew of, but of which the licensee was unaware.
If however, the danger is obvious, the licensee must look out for himself. The licensee is expected to
take his own precautions. (Mersey Docks Harbor Board v Proctor [1923] A.C 252; Pearson v
Lambet [1950] 2 K.-B 353).

Invitees.
An invitee is a person who is on the premises for some purpose in which he and the occupier has a
common interest e.g a customer in a shop. The distinction between an invitee and a licensee is that the
inviter an d invitee have a common interest but the licensor and licensee have none. Those who are
invited as guests whether from the worldly advantages which the hosts may remotely have into view.

The duty of an inviter is to prevent damage to the invitee from unusual danger. If the invitee acting
reasonably and exercising due care for his own safety does, not appreciate the existence of danger or its
nature, it will be to him unusual danger. (Latherm v Johnson [1913] 1 K.B 399; Bakahoineki v
Bunvoro District Local Administration [1970] E.A31Q).

Trespasser.

A trespasser is one who goes' onto the land of another without permission of whatever sort and whose
presence is either unknown to the occupier or has been objected to. The duty of an occupier towards a
trespasser comes lowest on-the scale. The general principle is that he who enters wrongfully does so at
his own risk But a trespasser is not entirely without rights. The general rule is thus subject to the
qualification that the occupier must not (a) do any act calculated to injure the trespasser; or (b) do
any act which if done carelessly must reasonably contemplated as likely to injure him.

Therefore, a trespasser will have a right of action if the occupier deliberately sets a vicious dog on him
or if he is injured by a mantrap put on the land for the purpose of trapping trespassers. In Hardy v
Central London Railways [1920] 3 K.B 459, a railway company had at one of their stations a moving
stare case which led from the booking hall to the underground platforms open to the street as there was
no physical obstruction to prevent any of those in the booking hall walking-on to the stare case. Th ere
was a tax-collector at the barrier near the bottom ‘of the stare case. Children from the neighborhood
were in the habit of frequenting especially during the evening hours and playing on the stare cases by
running it down and up; but they were always warned off by the tax-collector at the bottom and a clerk
at die booking office. These were always assisted by the railway policeman whose duty was to drive
out children from the booking hall. He used to do this twice in every hour. On the fateful day, the
plaintiff, a boy of about 5 years who was then under the care of a bigger brother, peeped and on
realizing that the policeman was away sneaked inside and to the state case where they began playing.
Then, die plaintiff threw his hand on die machine which chopped off his fingers, and hence bringing
this action. It was held that the plaintiff was a trespasser and that the defendant was not liable. In IMK
v Tigampentia & Anor.[1985] HCB 32, the respondents formally plaintiff sued the appellant
company in. tort of vicarious liability upon the negligence of their driver While they had been allowed
by die said driver with their boxes of fish at a fare of Shs. 300/=, the said driver reluctantly failed to
control the lorry at the bridge. The lorry rolled back, and the driver jumped out. The vehicle overturned
and rested on its left side with its rear, part in the water. The respondents received severe injuries,
hence this suit.

The second appellant had contended that their company was carrying on the business of tea, coffee
and clove transporters from Zambia, Zaire, through Uganda to Kenya and that they had given strict
orders to their driver not to carry passengers1and that the respondents were therefore trespassers. In
8
allowing the appeal, it was held that, the owner of the vehicle owes no duty to passengers whose
presence he has neither authorized nor could reasonably foresee if they were injured in an accident by
his servant's negligent driving. On the facts of this case, there was no doubt that the respondents were
trespassers as against the appellants. The driver had clear instructions not to carry passengers which he
disobeyed. Therefore the question whether he was an agent of the appellants at the time he contracted
 to carry the respondents does not arise. That to be effective the notice of prohibition should he
displayed in a language which is understood by the person it is meant to affect but the law does not
require such display. A trespasser is always a trespasser whether he knows it or not. That the master
will always be liable for the tort committed by the servant even if he had forbidden from doing the act ,
though forbidden was tacitly allowed. There was no evidence that the company had direct knowledge
as the officers of the company did not know that the driver was carrying passengers in disobedience of
the prohibition.

Strict liability

The rule in Ryland s v Flecher [1867] L.R 330.

The rule in Rylands v Fletcher is that the occupier of land who for his own purpose brings and keeps
on his land anything of non natural use which is likely to cause damage if it escapes must keep it at
own peril and is liable for all the diect consequences of its escapes even if he has not breen guilty of
negligence.in this case, the defendant employed an independent contractor experienced in such matters
to constructor experienced in such matters to construct a water reservoir. In the course of the works,
constrctors came across an old shaft and passages which although no one suspected this
communicated with the plaintiff’s mines. The contractors failed to to block up these shafts and passage
with the result that when the reserves was filled, the water from it over flooded plaintiff’s mines. It was
found as a fact that the defeda nt had not been negligent but nevertheless the court held that he was
liable for damages caused by the flooding and this decision was affirmed by the house of Lords. Lord
Blackburn in delivering the judgment observed that,

We think that the true rule of law is that a person who for his own purpose brings 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 so, he is primafacie answerable for all the damage which is the natural
consequence of the escape. Therefore, the rule applies to anything which a person brings,
collects, and keeps on. his land other than by way of natural use of land which in particular
circumstances is likely to give rise to undue risk of damage to others.

Therefore, in order to establish the defendant5s liability under the rule the plaintiff must show that:

 The defendant has broght to the land which he occupies and kept there in non-natural use,
something which if it escapes will cause damage.
 That the thing has in fact escaped.
 That the plaintiff has thereby suffered damage

In the ccae of Crowhurst v Amershan Burrial Board [1878] 4 Exch. 5 the defendants planted yew
trees on the boundary of their land, the branches of which, projected over land occupied by the plaintiff.
The plaintiffs horse nibbled the branches and was poisoned to death. The defendants were held liable.
They had brought trees on their land whose branches had escaped; and it is not a natural use of land to
plant poisonous trees which overhang other’s fields in which domestic animals are kept. In Ponting v
Noakes [18941 2 O.B 281. the plaintiffs horse entered on the defendant’s land and ate poisonous plants
1
9
which led to its death. It was held that, the defendant was not liable if has neighbor’s Sorse‘strayed on his
land and ate the poisonous plant. For it the plaintiff‘s duty to keep his horses from straying.
Defences/exceptions to the rule
 Act of God. The defendant can escape liability by showing that the escape was caused by an act
of God i.e an occurrence which no reasonable man would have contemplated. In Nichols v
 Marshland [1876] 2 Bxch. 1, the defendant was an owner of an estate containing anti -social
pools caused by damming a natural stream. A particularly violent storm greater and more violent
than any of the land in human memory broke down the dams and resulting rash of water carried
away the plaintiffs bridges. It was held that, the defendant had not been negligent and was not
liable under the rule because the accident was due to an act of God.
 Default of the plaintiff. The defendant will escape liability if the dangerous thing has escaped
because of the plaintiffs default.
 Consent of the' plaintiff. The defendant will be under no liability if the dangerous thing?-has
been brought' on the- defendant5s land with the knowledge1 and consent of the plaintiff. For in
such a case, the principle of volenti non fit injuria will apply.
 Act of a stranger. The defendant will escape liability if he can show that the escape was due to
die wrongful act of a stranger over which he had no control. In Rickatta v Lothians [1913] A.C
263, the plaintiff leased a 2nd Floor premises from the defendant who himself occupied the 4 th
Floor. One night, some, malicious third person blocked the outlet of a 4 th Floor basin and turned
the tap on. The water overflowed and damaged the plaintiffs goods. It was held that the defend
ant was not liableand the rule in Rylands v Fletcher was not applicable. The escape was caused by
the wrongful act of a third party and the water supply was a natural user of the land.
 Statutory authority. The rule has no application where the defendant acted in pursuance of a
statutory authority in placing the dangerous thing on the land from which it escaped. In Greene v
Chelsea Water Works [1870] 70 L.T 647, a water mine belonging to the defendant burst and
flooded to the plaintiffs premises. The defendant had been authorized to lay the mines by an Act
of Parliament. It was held that in the absence of negligence, they were not liable.
Liability under fire
Long before the case of Rylands v Fletcher, it was already established that a person was liable for the
escape of fire and therefore the owner of the fire was boun to keep it at his own peril. But the situation has
now been brought within the rule in Ryknds v Fletcher. It should be noted that in many cases, die rule in
Rylands v Fletcher will not impose liability because fire would have been lit in a natural user of land but
the defendant will not escape liability if lie is negligent. In Sulim Omani v Jackson Ongeva C.A No.
2/1971, the appellant gave the respondent permission .to use part of his land; When clearing this portion,
the respondent set fire to the grass and inspite of the precautions taken, the fire escaped because of die
strong wind, damaging the plaintiffs property. It w ras held that proof of defendant5s negligence was an
essential element in liabilities for fire, with the exception to the rule in Rvland v Fletcher that if an
occupier starts fire intentionally he is under a duty to prevent it from causing damage otherwise he is
acting at his own peril. In Abdullah Ramathan v Kinoluwe C.A No. 103/1967, the plaintiff brought an
action for damages to his crops by the spread of fire from the defendant’s shamba to the plaintiffs land. It
was held that if a person, starts fire .on his shamba and it spreads'into somebody’s land, he cannot plead
that it was merely bad luck!! It is necessary for a person who starts fire to control it, and where he fails
and it spreads into somebody else’s land, he must pay compensation for damage caused.
Liability for animals.
There are two classes of animals: (1) animals farete naturae ie these are animals of a wild nature, and (2)
2
animals manuetae naturae i.e animals of a tame nature/domesticated
0 animals.
A person who keeps a wild or Domest nimal known by him. To be. viciouskeeps tit at his peril and is
liable for all the natural consequences of not keeping it securely. (Burry v Campbell [1915] K. L. R 68).
Whether a particular animal fall within the category of dangerous or tamed classis a question of law and
the test is whether that particular land of animal is by its particular nature dangerous to human kind.
Dangerous .animals are those which ordinarily are kept in captivity e.g lions, leopards, tigers etc. On the
other hand dogs, cats and horses are all tamed and domesticated animals. Keeping domestic animals is
less risky than keeping wild animals. A person keeping domestic animals can be liable, for damage
caused by such animal only where it can be proved against him that he was aware of the animal’s
propensity to cause harm. This, rule is known, as the scienter rule. In order to prove scienter.; the plaintiff
need not show that • the animal had previously done the thing complained of. He needs establish only
propensity to do_the wrong thing complained of and that its owner was aware of such propensity. E.g. if
A's dog attacked B, B is only required to show that A’s dog had a tendency to attack human beings. The
scienter will not be proven by showing that the dog had bitten other dogs.
Liability on dangerous animals does not depend on ownership but on control of the animal. In Yesero
Mngenyl v Secnrico Uganda Ltd HCCS No. 438/1971, the plaintiff, an advocate visited a Bank to cash
a cheque. He later returned to- the same bank on learning that he had misplaced his car key. The bank had
officially closed the day’s business and he had to go through tire rear door. There was a guard dog with its
handier positioned about 27 feet away. The dog then not on a chain rushed up to the plaintiff and bit him.
There was no evidence to show that this dog had ever bitten a person before. The dog had however been
trained to attack human beings only after it is ordered by tits, handler: It was argued for the defendant that
the dog was a- tamed animal and that no scienter had been established. It was held that, the dog had been
deliberately trained by.thedefendant company to attack human beings. The defendant could not claim that
the particular dog was in the circumstances like any other ordinary dog. In attacking the plaintiff the dog
was not indulging into unnatural propensity but what it had been trained to do. The defendant knew that
their dog was so trained and was liable.
Defences to scienter.
 Act of God.
 Act of a stranger. If the harm is due to the act of a stranger, the owner or one in control of the
animal will not be liable provided he can show that he had done what he is reasonably expected to
do to prevent other persons from meddling with the animinal,.
Claims under the law reform (miscellaneous provisions) Act Cap.79

The law reform miscellaneous Act, (herein after referred to as “the act”), applies to causes of action
which arose on or after 3rd December, 1953, when the took effect. Accordingly, section 5 of the act,
provides a statutory cause of action known as “death caused by negligence.” Its effect is that an action

ismaintainable where death is caused by the wrongful act,neglect or default of any person provided
suchwrong is such as would have availed a right to sue to the injured person if he/she did not actually die.
The element of this tort, are similar to those under to the general law of negligence with the exception that
here the victim must have suffered death and not mere bodily or financial injurey. The second difference
is that while an action under the general law ofneglience will be commenced by the victim himself or by
his next friend , action under the act , are commenced posthumous (after the death of ) the victim, by and
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for the benefit of the deceased’s family members.
1 It is no defence for the defendant over that he was
under common employment with deceased. Even where there was an express agreement in the contract of
service between the deceased and defendant employer limiting the right to liability for person injuries,
such clause is null and void.(S.15 (2)of the Act).
Section 6 of the Act confers aright too sue for damages on any executor, administrator or by members of
the deceased’s family.The category of persons with capacity to institute an action is extensive and
includes a wife and orben of the deceased; the husband and or childrenamother or father of the
deceased; and the next of kin. (Matovu v Kironde H.C.C.S No.132/1961).such suits are brought for the
benefits of the members of the decesed’sfaily.where there is no executor or administrator, family
members should agree on who sue as not every beneficiary can bring a separate suit to cover his/her
independent interest. The court can only entertain one suit in respect of the subject matter. (s.6 (3), of the
Act). Once the is made to institute a court action, the plaintiff is required to deliver his/her plaint to the
defendant with a list of full particulars of the beneficiaries, and the nature of claim in respect of the
damages being sought.(S.8 of theAct).

In uganda, damages under the Law reform (Miscellaneous Provisions) Act are awarded to the
beneficiaries not for bereavement but for loss of dependency and future expectations of life. (U.E.B
vMusoke). The court can award pecuniary damages including burial expenses (S.9, of the Act).
(Sebuliba v katende [1982]H.C.B 56).

Loss of expectation of life & future dependency: the basic principle isthat a dependant is entitled toa full
compensation for the pecuniary benefit lost and this can be calculated in reference to a reasonable
expectstion of a pecuniary benefit as of right, from the continuance of life.(Miller v StirlingAstaldi (E.A)
Ltd(1950) K.LR 22 ), In assessing dependency, courts are guided by the rules/method suggested by lord
wright, in Davies v Powell Duffry Associated collieries Ltd (1942) A.C 601,617cited
withapprovalinOsinde v onyang[1975] H.C.B 92;

o The starting point is the amount of wages the deceased was earning.
o Next, is the estimate of how much was required for the deceased’s personal living expenses?
o The balance would give adatum or or a basic figure which will generally be turned into a lump
sum by taking a certain number of years purchase. This sum may be downscaled putting into
account uncertainties, like future fortunes of the beneficiaries’ e.g where for instance a widow
remarries and ceases to be a dpendant; and other matters like speculation and doubts.

Suffice to note is that when court is assessing damages, it will not take into account any sum of money
paid or payable to the estate under a contract of insurance between the deceased and his insurers.(S.9,of
the Act).

In Osinde v Oyango, the plaintiff as widow to the deceased, brought an action on her own behalf and on
behalf her two daughters aged 18 and 12 years respectively. Her late husband though an elderly man of 60
years, was still economically productive as fitting mechanic at jute Factory,Tororo. Besides, they would
jointly work on family gardens and such efforts would yield an income of about Ug.shs. 10,000/= p.a.
The said husband was knocked dead by the negligent conduct of the family lost on the financial fortune
and children were chased from school for inability to pay fees. Her claim for prospectivefinancial
assistance under the law Reform (Miscellaneous provisions) Act succeeded. In Makumbi v Kigezi
African Bus Co.Ltd [1986] H.C.B 68;the plaintiff a 50 year old man as father of the deceased sued the
2
2
defendant for loss of servictum, loss of expectations of life. On the fateful day, the plaintiff was
trvavellingona bus together with his wife and a 2 year old child along Masaka road. Somewhere, they met
a trailer coming from the opposite direction. The bus moved further on its left hand side to give space to
the trailer to pass. In so doing, the bus fell off the road and rolledseveral times into the wampy valley,
resting on its top with its tyres up. The plaintiffs said 2 year old child died,hence the suit. On loss of
prospective financial assistance, the plaintiffs councilcontended that there was justification for court to
grant this remedy because in Afrcan society when children grow up, they contribute financially not only
to their families but also to their kindred. That, parents therefore, look uponchildren as an investment. It
was held that loss of servitum is actionable by a parent, but only recoverable where it is proven that child
was capable of rendering those services. In the preent case, the deceased was still an infant and thus
incapable to render any such services to its family. It was futher held that it would be too perspective a
possibility that when a child n African society grows up, it will contribute financially to the family and
kindred. That there are numerous unpredictable contingents for a child to fulfill his parents expectation in
life. The claim was equall disallowed. That, death of child deprives itsits parents their expectations tolive
and enjoy as they watch over their child’s growth. For this reason, the plaintiff was awarded damages. In
public Trustev city council of Nairobi (1965) E.A 758; a young boy then sitting at his parents’
verandah was hit by a piece of metal which fell off from the defendant’s grass-cutting machine. He died
from the sustained injuries a fortnight after. The father of the deceasdedled evidence to justify damages
for loss of future expectations in life by contending that he had intended his late son to study and become
a doctor. He showed how he had an income generating job that could see his through his future dreams if
it weren’t for the defendant’s negligent conduct. It was held inter alia that the evidence of the deceased’s
father that intended to educate his child to be a doctor was highly speculative, though it raised reasonable
expectation of a pecuniary advantage to the father. In sebuliba vKatende[1982] H.C.B 56; In Sebuliba v
Katende (1982) H.C.B. 56, the plaintiff as father of the deceased, filled the suit as against the defendant
under the Law Reform (Miscellaneous Provision) Act for General and Special damages arising of the
fatal accident his son suffered as a result of the defendants drivers negligence. The deceased a 16 year
died while in S1 when traveling as a passenger on the defendant’s motor vehicle. The plaintiff contended
inter alia that the family had lost on the deceased services. It was held that although African children
while at school are expected to assist in domestic work when they return home in evenings, weekends and
holidays a plaintiff can succeed on this claim if he can prove his loss of these services form the deceased.

Further, that the deceased lived in his house as part of the family members and was old enough to render
those services.

Claims for pain and suffering are not recoverable where the deceased became unconscious at the time of
suffering the fatal injuries till death, or where he dies instantly (Anderson v East High Commission1
T.L.R 541 (1949). Likewise, claims for loss of companionship or that of clothes the deceased was
wearing at the time he suffered the fatal injuries are also not recoverable (Osinde v Onyango)

The defences under these claims are the same as those under the general law of negligence.

Defamation

The law of defamation is intended to protect human honor, integrity and reputation from being violated
through malicious false attacks. It is thus the law guarantying the right and freedom to privacy. The
present law of defamation was developed from the activities of the Star Chamber, in the 17th Century
which set out to punish the crime of political libel in order to suppress seditious publication which had
come with the spread of printing. It thus plays the2 role of peace keeping.
3

In Sejjoba v Rwabigonji (1977) H.C B 41, 43court defined a defamatory statement as one which has
tendency to injure the reputation of person to whom it refers by lowering him in the estimation of
the right thinking members of society generally, and in particular to Cause him to be regarded with
feelings of hatrate, contempt, ridicule, fear, and disesteem.
The court further gave typical examples of defamatory statements to include an attack upon the moral
character of the plaintiff, attributing to him any form of disgraceful conduct, such as commission of a
crime, dishonesty, cruelty and so on.

The essential elements of defamation are:-

(a) That the defendant made a publication to someone other than the plaintiff (a third party)
(b) That the publication was defamatory of the plaintiff i.e. calculated to injure the plaintiff’s feelings
or loss of self-respect.
(c) The publication was false and made without justifications.
(d) The publication referred to the plaintiff.

A defamatory publication can take the form of slander or libel .A person publishes a slander when he
speaks words defamatory of plaintiff in the presence of third person (Odongkara v Bob Astles (1970)
E.A 374. In other words, a statement is slanderous where its publication is not reduced into a print form.
On the other hand, libelous statements are those communicated while under their print form. These
include letters of whatever kind, e-mails, telegrams, photographs, news telecasts etc

In Ssejjoba v Rwabigonji, the defendant as a parent, wrote two letters to the school Head Master and to
the District Education Officer, respectively, against the plaintiff then a P.6 Teacher and acting
Headmaster of a school where a defendant had an allegedly an undisciplined daughter. In these letters,
the defendant accused the plaintiff of disgraceful conduct such as drunkardness, and crime of
adultery, hording and overcharging of dishonesty in handling the school choir funds, cruelty
towards pupils. While in court, the defendant further accused the plaintiff of murder or
manslaughter, of pupil, whom he alleged was beaten to death by the plaintiff. In the same letter, he
defendant accused the plaintiff of being drunk in class, canning pupils, neglecting his duties so as to
carry his own business, refusing to allow pupils from attending religious instructions and services,
failure to co-operate with the rest of the staff and parents, causing his pupils to fail examinations by
his neglect and dismissing pupils from school without reason.

The above statements of the defendants reflect a clear example of defamatory libel indeed these
statements said about the plaintiff were untrue and the defendant’s defence of justification failed. No
wonder, the court held that the absence of any genuine belief in the truth of statement was conclusive
proof of malice, and that even where a genuine belief would be consistent with existence of malice,
then the motive was an improper one. Thus if defendant uses the occasion for a malicious purpose,
he would be liable in defamation, even though he claims that what he said was believed to be true.

Innuendo

An innuendo arises where a defendant uses in addition to ordinary words any implication or inference
which a reasonable reader guided not only by any special but only by general knowledge, and not
fettered by any legal rules of construction would draw from the words (Jones v Skelton (1963) 1
W.L.R. 1362 at p.1370-1371). In other words, innuendo are used to convey an elusive meaning and a
2
claimant in defamation is required say in his particulars what meaning he attributes to the defendant’s
4
statement. See: (AbubakerMayanja v The White Fathers &Ors.H.C.C.S No. 643/1960)
Defences to defamation

1. Justification
2. Fair comment
3. Privilege (a) absolute or (b) qualified
4. Apology
 Justification (Truth)A defendant can plead justification in a suit for defamation. This is another
way or relying on the power of truth. That the plaintiff should not run away from what society
knows as his true status. The essence of the defence is to remind the plaintiff that the status at
which the publication placed him is actually where he belongs and no higher, since reputation is
what others think you are and not what you perceive to be in society. It is advisable that this
defence be raised in addition to other defenses.
The reason is that should it fail, then the defendant may suffer aggravated damages for his
reckless and wanton publication.
 Fair comment
This can be raised where the plaintiff is a public figure and it was imperative for the defendant to
make the statement which had the effect of educating the public on who such official was in
relation to the discharge of his duties. It is found on bedrock assumption that honest criticism
ought to be made in any public institution or office. Provided the matter commented upon is in
public interest, then it is open to anyone. Nonetheless fair comment cannot be applicable to
statements of fact. Fair comment is commonly raised by journalist against defamatory suits
Read: (AdokoNekyon v TanganyikaStandard Ltd H.C.C.S No 393/1964 (U).
 Privilege. This arises where the law recognizes that the freedom of communication without fear
of an action is more important than the protection of a person’s reputation, in this regard,
statement made on the plenary during parliamentary proceeding as well as those made during any
judicial inquiry or trial, are privileged.
(a) Absolute privilege. This category includes: Statements made in Parliament, Judicial Proceedings,
Communications between certain officers of State; and Law Reports. Read: Mandavia
vMangat&Orrs (1954) K.L.R 68.
(b) Qualified privilege: This could be given at common law or statute. At common law, the law looks
t duty and interest i.e. the defendant must have a legal, moral or social duty to communicate while
his recipient equally had a corresponding interest to receive the communication. On the other
hand, statutes generally give qualified privilege under the following circumstances:
(i) A fair and accurate report of proceedings in public of a legislature anywhere in the world;
(ii) A fair and accurate report of proceedings in public before a court anywhere in the world;
(iii) A fair and accurate report of proceedings in public of a person appointed to hold a public
inquiry by a government or legislature anywhere in the world;
(iv) A fair and accurate report of proceedings in public anywhere in the world of an
international organization or international conference;
2
(v) A fair and accurate copy of an extract
5 from any register or other documents required by
law to be open to public inspection;
(vi) A notice or advertisement published by or on the authority of a court, or of a judge or
officer of court, anywhere in the world;
 (vii) A fair and accurate copy of an extract from a matter published by government or
legislature anywhere in the world; and
(viii) A fair and accurate copy or extract from matter published anywhere in the world by an
international organisation or an international conference.

NB. Malice may destroy the defence of qualified privilege. Read: (Tanganyika Transport v Nooray
[1961] E.A 55; H. Suleman Ltd. VN.R. Sayani [1963] E.A 603).

Apology. This serves as a mitigativedefence. To succeed, the defendant must show that he was truly
honest but merely misled to act on wrong information in making the publication. Further, that he was
remorseful for the mess, the publication generated against the plaintiff. The period within which the
apology is made from the material date of the offending publication, is a relevant factor. Quick and
immediate apologies are likely to be accepted as honest while belated apologies may not be effective at
all.

Remedies for tortious liabilities.

Article 126 (2)(c) of the Constitution of the Republic of Uganda enjoins courts to grant adequate
compensation to victims of wrongs. Where a tort has thus been committed, the plaintiff is entitled to
compensation in money for the injuries sustained. The principle is that money is the universal solvent and
everything that is either a gain or a loss can be turned into money.

Classifications/kinds of damages.

(a) Contemptuous Damages. Under this head, the amount awarded is merely derisory, e.g 1 shilling
only. The purpose of the award is to show that while it could be true that the plaintiff’s right has
technically been infringed upon, nonetheless, court has a low opinion of the claimant, who is
regarded to have deserved what the defendant did to him.
(b) Nominal Damages. Nominal damages are awarded when the claimant’s right has been infringed
though such plaintiff has suffered no actual damage although he has a complete cause of action
because the tort is actionable per sc. (Njareketa v The Director of Medical Services, Mulago).
(c) Compensation Damages. The object of the award is to make good or replace the loss caused by
the wrong or injury and nothing more. The principle is restitution integram. This category is
divided into two types viz General and Special damages.
(i) General Damages. These are damages which the law implies or presumes naturally to
flow or accrue from the wrongful act of the defendant and may be recovered without any
proof of any amount. Such damages are recoverable where they are immediate, direct and
proximate to the injury suffered by the plaintiff. They are awarded at the court’s
discretion and a court of appeal will not interfere with such award even if it would have
awarded a different figure except where the lower court followed wrong principles or
awarded an amount which is too high or too low as to appear potentially erroneous in the
circumstances.
(ii) Special Damages.These damages,
2
sometimes called actual or particular damages are
constituted of items which may6not be presumed to flow from the event but which the
plaintiff is required to plead and prove strictly. In other words, they are particular
damages beyond the general damages which results from particular circumstances of the
case and of the plaintiff’s claim to be compensated for which he ought to give warning in
his pleadings in order that there may be no surprise at trial.
 (d) Exemplary Damages. These are awarded when aggravating circumstances exist in th e act of
intention of the wrongdoer and in such event, the court may award additional damages, either to
deter the wrongdoer from repeating the act or compensatory for the wounded feelings of the
plaintiff. They are commonly awarded under libel or assault damages.

Action for personal injuries.

(a) Non-pecuniary loss. These include pain and sufferings and loss of amenities. Under this head,
court considers any consequential inconveniences associated with medical treatment and worry
about the effect of the injury including those attributed to compensation neurosis. In Wise v Kaye
[1962] 1 Q.B 638; the claimant remained unconscious from the moment of the accident and was
deprived of all attributes of life, but life itself. His action for damages succeeded. Also read: West
& Sons v Shephard [1964] A.C 326.
(b) Pecuniary loss.
(i) Lump sum, structured or periodically payments. In accident cases, the victim may suffer
loss of earnings and other related expenses. The court must as far as possible try and
convert future pecuniary losses into present capital sum. Pecuniary loss payments will
also take into account deductions that can rightly be made in cases of plaintiff’s
contributory negligence.
(ii) Interest on damages for personal injury. These can also be awarded under deserving
circumstances.

Destruction of Damage to property.

(a) Destruction. Where property is totally destroyed as a result of the defendant’s tortious liability,
the normal measure of damages will be its value at the time and place of destruction.
(b) Damage. Where property is damaged, the normal measure is the amount by which its value has
been diminished; and in case of chattels, the cost of repairs will be the guiding factor.

Land and Buildings.

Similar principles as those governing chattels apply. Additional remedies however under this category
include:

(i) Self-Help. The challenge with this remedy is that person exercising it is the worst judge of
exactly how much he is entitled do without exceeding his rights.
(ii) Abatement of a nuisance. Equally the challenge here is that before it is exercised, the plaintiff
must first give notice of his intended entry on the defendant’s land. The only exception is
where the effect of the nuisance is eminently severe with propensity to cause immediate
danger or harm to life or security.
(iii) Injunction. These are prohibitory orders restraining a defendant from doing a wrong on the
contested land. It could take the form of a permanent injunction, temporary injunction or
interim injunction. In deserving circumstances the court may as well issue a mandatory
2 intended to order the defendant to take positive actions
injunction. A mandatory injunction is
7
to rectify the consequences of his conduct