WHAT IS A TORT?
A tort is a civil wrong other than a breach of contract whose remedy is
a common law action for damages or other relief. However, not every
wrong is a tort. A single action may give rise to a tort and a crime.
The law of tort protects various personal and proprietary interests.
Tortious liability arises from the breach of a duty primarily fixed by
law; this duty is towards persons generally and its breach is
redressable by an action for unliquidated damages.
TORT AND CRIME DISTINGUISHED
Tort
It is a wrong redressable by an action for unliquidated damages.
The party suing is an individual or private person.
Crime
It is a wrong the action of which involves punishment.
Almost always the party suing is the state.
THE PARTIES TO A SUIT (CAPACITY / LEGAL LIABILITY IN TORTS)
GOVERNMENT
At common law no action in tort lay against the state (crown) for wrongs
expressly authorized by the crown or for wrongs committed by its
servants in the course of their employment.
However, under the Government Proceedings Act1, the Government is liable
for tortious acts. Section 4(2) provides; “Subject to the provisions of
this Act, the government shall be subject to all those liabilities in
tort to which if it were a full person of full age and capacity it would
be subject;
i. In respect of torts committed by its servants or agents.
ii. In respect of any breach of those duties which a person owes to his
servants or agents at common law by reason of being their employer.
iii. In respect of any breach of duties attaching at common law to the
ownership occupation, possession or control of property.
However, Section 13A provides that before one can sue the government he
must give a 30 days notice.
Dorset Yatch Co Ltd v Home Office
Facts: An action was brought by owner of property against the home
office in respect of damage to his property done by runaway borstal
boys. Seven borstal boys ran away one night when the three officers in
charge of them were, contrary to instructions, all in bed. They boarded
one of the many vessels in the harbour, started it and collided with the
plaintiff’s yacht, which they then boarded and damaged further. The
defendant (Home Office) was held liable for not protecting the plaintiff
from the ravages of the borstal boys.
FOREIGN GOVERNMENTS / SOVEREIGNS
Diplomats and foreign sovereign states enjoy absolute immunity to
criminal and civil liability before a Kenyan court unless the immunity
had been waived by submission to Kenyan Jurisdiction (under the Vienna
Convention on Diplomatic Relations, 1961).
This applies only where the act was done in the exercise of the
sovereignty of the state. Immunity ceases when one engages in private
and commercial venture. Immunity can be waived leading to a person being
charged.
• Bankrupts
May sue or be sued for torts committed.
• Minors
After an early period of uncertainty the common law adopted 21 years as
the age of majority for most purposes and it remained at this until 1970
when it was reduced by statute to 18 years.2
A minor can sue and be sued for tort. A minor can however not sue or be
sued in his own name but by his “next friend” (guardian ad litem3).
In the law of tort there is generally no defense of minority and a minor
is as much liable to be sued for his tort as is an adult. In Gorely v
Codd (1967), the defendant, a 16 ½ year old boy was held liable when he
accidentally shot the plaintiff with an air rifle in the course of
lurking about.
Minority however may be a defense in an action for the tort of
negligence or malice. This is to be inferred from the fact that a young
child may well be incapable of the necessary mental state for liability
in such torts.
In an action for negligence against a young child, therefore, it is
insufficient to show that he behaved in a way which would amount to
negligence on the part of the adult. It must be shown that his behaviour
was unreasonable for the child of his age.
Parents are not liable for the torts of their children, but in
situations where it is established that the child was under control of
the parent the commission of the tort by the child will result to
liability of the parent.
• Persons Of Unsound Mind
Liability depends on whether the person knew what he was doing when he
committed the tort. This can be proven by a psychiatrist.
In Morris v. Mardsen (1952), the defendant rented a room at a hotel.
While there he attacked the manager of the hotel. At that time he was
suffering from a disease of the mind. It was established that he knew
the nature and quality of his act, but he did not know that it was wrong.
It was held that as the defendant knew that nature and quality of his
act, he was liable in tort for assault and battery. It was immaterial
that he did not know what he was doing was wrong.
Unsoundness of mind is thus certainly not itself a ground of immunity
from liability in tort, and it is submitted that the true question in
each case is whether the defendant was possessed of the requisite state
of mind for liability in the particular tort in which he is charged.
Husbands And Wives
Married women can sue and be sued for torts committed according to the
1935 Law Reform (Married women and tort feasors ) Act.
The Law now recognizes women as Femme Sole (having legal capacity to sue
and be sued). Under common law the wife was never liable for her torts
but her husband was liable for both his torts and those of his wife.
• Corporations
A corporation can sue and be sued in its own name for torts committed,
but there are some torts which, by their nature, it is impossible to
commit against a corporation, such as assault or false imprisonment.
A corporation can sue for the malicious presentation of a winding–up
petition or defamation, though the precise limits of the latter are unclear.
Liability of Corporations is however limited. Thus if a servant commits
a tort that is ultra vires the corporation then the corporation is not
liable.
• Unincorporated Associations
These cannot sue or be sued for torts committed but they can institute a
representative suit. The members of the association are not liable for
the torts of the association but the individual members are liable for
their own torts.
• Partners
They are personally liable for their own torts. They can sue and be sued
by writing down all the names of the partners and of that partnership.
Each and every partner is liable for a tort committed in the course of
the business. It was so held in Hamlyn v. Houston (1903).
• Aliens
A friendly alien has no disability and has no immunity. An alien enemy
is one whose state or sovereign is in war with the sovereign of the
state in question. As thus defined an alien enemy unless he is within
the realm of license of the sovereign cannot sue in the sovereign‟s courts.
He can however be sued and can defend an action and if the decision goes
against him, he can appeal.
GENERAL DEFENCES IN TORT LAW
1. PLAINTIFF‟S DEFAULT/CONTRIBUTORY NEGLIGENCE
This defence may be relied upon if the plaintiff is also to blame for
his suffering. The defendant must prove that:
i. The plaintiff exposed himself to the danger/risk by act or omission
ii. The plaintiff was at fault or negligent
iii. The plaintiff’s negligence or fault contributed to his suffering
This defence doesn’t absolve the defendant from liability. It merely
reduces the amount of damages payable by the defendant to the extent of
the plaintiff‟s contribution.
This defence is unavailable if the plaintiff is a child of tender years.
If the plaintiffs were to sue and the defendant proved that the
plaintiff was on the wrong, that can constitute a defense. Under Common
Law, if a person contributed to a tort, that prevented him from suing.
It was a complete defence.
The law was however changed by statute under the Common Law Reform Act
of 1945. A plaintiff on the wrong can recover as long as he has not
contributed to 100% to the tort. Thus if he has contributed 40% he can
recover 60%.
2. ACTS OF GOD
Where damage is caused directly by natural circumstances which no human
foresight can provide against and of which human prudence is not bound
to recognize the possibility, the defense of act of God applies.
For this defense to succeed it must be shown that the act was not
foreseeable and that it was unusual.
3. VOLENTI NON FIT INJURIA
This defense is available in circumstances where the plaintiff with full
knowledge of the risk voluntarily agrees to undertake the same .The
defendant must prove
a) That the plaintiff had actual knowledge of nature and extent of the risk.
b) That the plaintiff agreed to incur the risk voluntarily as was the
case in Tugwell VBurnett.
4. NECCESSITY
It may be relied upon if the tort complained of was necessary to protect
the society. It is usually relied upon by the state for acts taken to
protect the society at large as the interest of the public prevail.
(solus populi suprema lex)
The critical thing is that the act done has to be reasonable. Necessity
is limited to cases involving an urgent situation or imminent peril. The
measures taken must be reasonable and this will depend on whether there
is human life or merely property in danger.
5. STATUTORY AUTHORITY
This defense may be relied upon by the defendant (usually the State or
its agents) if the nuisance is authorized by statute. The defendant has
a complete defense only if he can prove that he acted in accordance with
the provisions of the Act. Whether the defence succeeds or not depends
on the interpretation of the Statute
SPECIFIC TORTS
1. NEGLIGENCE
In the words of Anderson B in Blyth v Burmingham Water Works Co.
negligence is the omission to do something which a reasonable man guided
upon those regulations which ordinarily regulate the conduct of human
affairs would do or do something which a reasonable and prudent man
would not have done.
ELEMENTS OF NEGLIGENCE
The tort of negligence consists of three elements which a plaintiff must
prove in any action based on negligence.
- Legal duty of care.
- Breach of duty.
- Loss or damage.
LEGAL DUTY OF CARE
The plaintiff must prove that the defendant owed him a duty of care in
the circumstances. The circumstance must have been such that the
defendant knew or ought to have known that acting negligently would
injure the plaintiff.
Who owes another a legal duty of care?
As a general rule every person owes his neighbour a legal duty of care.
In the words of Lord Atkin in Donoghue v Stevenson (1932), a person owes
a duty of care to his neighbours. This is the so-called neighbour
principal. You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your
neighbour. Who then in law is my neighbour?
The answer seems to be persons who are so closely and directly affected
by my acts that I ought to reasonably have them in contention as being
so affected when am directing my mind to the acts or omissions which are
called into question.
Whether a person owes another a duty of care will depend on whether such
a person could reasonably have foreseen injuring the other.
Standard of care
As a general rule the standard of care expected of the defendant is that
of a reasonable man of reasonable prudence. This is a person who has the
minimum information and knowledge necessary to act reasonably in any
situation.
Where professionals and experts are involved the standard of care is
that of a reasonably competent professional.
The concept of reasonable man is an artificial concept developed by law
to promote objectivity.
It is independent of personal subjectivity and prejudices.
Unforeseen plaintiffs
These are circumstances in which a defendant does not owe a plaintiff a
duty of care. In such circumstance the plaintiff cannot sustain an
action against the defendant irrespective of negligence.
In Kings v. Phillips where an expectant mother suffered nervous shock by
reason of hearing the son‟s scream while 70 yard s away, it was held
that she could not recover since the defendant driver owed her no legal
duty of care.
In Bourhill v. Young an expectant mother suffered a nervous shock on
hearing a loud band and seeing a pool of blood as a result of an
accident caused by a negligently ridden motorcycle. It was that she
could not recover since the motorcyclist could not have reasonably
foreseen her suffering.
BREACH OF DUTY
The plaintiff must prove that the defendant acted negligently thereby
breaching his legal duty of care. The plaintiff must prove specific acts
or omissions the part of the defendant. The plaintiff must adduce
evidence to prove his case.
However in certain circumstances negligence is proved without evidence.
These cases are referred to as Res ipsa loquitor which literally means
“it speaks for itself”.
This is a rule of evidence by which the plaintiff is deemed to have
established negligence on the part of the defendant without adducing any
evidence.
Requirements of Res Ipsa
Absence of explanation; the plaintiff has no evidence on the negligent
acts or omissions of the defendant.
Such a thing does not ordinarily occur when proper care is taken
The instrument or object which causes the harm was exclusively within
the control of the defendant or his servants or his agents.
In Scott v London and St Catherine’s dock the plaintiff a custom’s
officer was injured by sugar bags falling on him inside the defendant’s
warehouse. It was held that the principle of Res ipsa applied and he did
not have to prove negligence on the part of the defendant.
Effects of Res Ipsa
- It provides prima facie evidence on the part of the defendant
- It shifts the burden of proof from the plaintiff to the defendant and
if the defendant‟s explanation is credible the plaintiff loses the case
However, the defendant is not liable if the loss or damage suffered is
not traceable to the negligent act or omission of the defendant.
THE LAW OF TORTS NOTES
DEFENCES TO NEGLIGENCE
1. Contributory negligence
This defense is available in circumstances in which the plaintiff is
also to blame for the loss or injury. The defendant must adduce evidence
to establish the plaintiff’s contribution.
The defendant must prove:-
- That the plaintiff exposed himself to danger.
- That the plaintiff was at fault or negligent.
- That the plaintiff’s fault or negligence contributed to his suffering.
Effect of contribution
It reduces the amount of damages recoverable by the plaintiff by the
extent of his contribution. However, children of tender years are not
guilty of contribution.
2. Voluntary assumption of risk (volenti non fit injuria)
This defense is available in circumstances where the plaintiff with full
knowledge of the risk voluntarily agrees to undertake the same. The
defendant must prove
That the plaintiff had actual knowledge of nature and extent of the risk
That the plaintiff agreed to incur the risk voluntarily
In Dann v Hamilton the plaintiff had taken a ride on a vehicle driven by
a drunken person and his was aware of this fact and as a consequence an
accident occurred. The defendant’s plea of volenti failed since the
plaintiff had not consented to incur the risk.
However in Tugwell v Bunnet where the defendant’s vehicle expressly
stated that passengers rode at their own risk and the driver at the
material time was drunk to the plaintiff’s knowledge but took a ride in
the motor vehicle and was injured, the defendant’s defense of volenti
succeeded since the plaintiff appreciated the risk and agreed to incur
the same.
3. Statutory authority
If the conduct complained of by the plaintiff is authorized by statute
and the defendant has acted in accordance with the provision of the
statute the defendant has a complete defense to the plaintiff’s action.
However whether or not the defense is complete depends on the
interpretation of the statute.
STRICT LIABILITY: THE RULE IN RYLANDS v. FLETCHER
Anyone who in the course of non – natural use of his land, accumulates
thereon for his own purposes anything likely to do mischief if it
escapes is answerable for all direct damage thereby caused.
This is the rule in Rylands v. Fletcher where the defendant employed
independent contractors to construct a water reservoir on the land,
which was separated from the plaintiffs land by adjoining land. In the
course the works the contractors came upon some old shafts and passages
filled with earth. The contractors did not block them up. Unknown to
them, the shafts connected their land with the plaintiff’s mines. When
the water filled the reservoir, it seeped through the old shafts and
into the plaintiff‟s mines thence flooding them. It was found as a fact
that the defendant was not negligent, although the contractors had been.
However, although the defendant was neither negligent nor vicariously
liable in the tort of his independent contractors, he was held liable by
the Court of Exchequer chamber and the House of Lords. The judgment of
the Court of Exchequer chamber was delivered by Blackburn J. at P. 279
-280 and it has become a classical exposition of doctrine.
“We think that the true rule of law is, that the 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 in at his peril, and, if he
does not do so, is prima facie answerable for all the damage which is
the natural consequences of its escape.”
This may be regarded as the „rule in Rylands v. Fletcher’
But what follows is equally important. The court further said:
“He can excuse himself by showing that the escape was owing to the
plaintiff’s default; or the act of God: it is unnecessary to inquire
what excuse would be sufficient”.
The general rule, as above stated, seems to be just in principle.
“The person whose grass or corn is eaten down by the escaping cattle of
his neighbour, or whose mine is flooded by the water from the
neighbour’s reservoir, whose cellar is invaded by filth of his
neighbours or whose habitation is made unhealthy by the fumes and noise
and vapours of his neighbours alkali works, is damnified without any
fault of his own; and it seems reasonable and just that the neighbour,
who has brought something on his own property which was naturally there
harmless to others so long as it is confirmed to his own property, but
which he knows to be mischievous if it gets on his neighbours should be
obliged to make good the damage which ensues if he does not succeed in
confining it to his property. But for his act in bringing it there no
mischief could have accrued, and it seems but just that he should at his
peril keep it there so that no mischief may accrue, or answer for the
natural and anticipated consequences and upon authority, this we think
is established to be the law whether the things so brought be beasts, or
water, or filth, or stenches.”
Lord Cairns in the House of Lords upheld this judgment but restricted
the scope of the rule to where the defendant made a “non-natural use” of
the Land.
This decision makes it clear that liability was strict in the sense that
the defendant’s liability was neither personal nor based on a mere
vicarious liability for the negligence of his independent contractors.
LOSS OR DAMAGE
The plaintiff must prove that as a result of the defendant’s breach of
duty he suffered loss or damage.
The plaintiff’s loss must be traceable to the defendant’s breach of
legal duty, failing which the plaintiff’s damage is deemed to be remote
and therefore irrevocable.
The defendant is reasonably liable for any loss which is reasonably
foreseeable from his acts or omissions. It was so held in The Wagon
Mound II.
Question has arisen as to what losses the defendant must have foreseen
and courts have taken the view that as long as some loss is foreseeable
the defendant is liable for any loss.
In Bradford v. Robinsons Rental Co. Ltd, where the plaintiff was exposed
to extreme cold and fatigued, in the course of his employment by his
employers and as a consequence suffered from frost bite, it was held
that the defendants were liable, since his suffering from frost bite was
reasonably foreseeable.
REQUIREMENTS OF THE RULE IN RYLANDS v. FLETCHER 1. THE THING
The rule does not require that the thing should both likely to escape
and likely to do mischief on escaping. If this were the case, there
would be little difference between the rule in Rylands v.Fletcher and
negligence. Furthermore, in Rylands v. Fletcher,the thing need not be
dangerous initself. The most harmless objects may cause damage on escape
from a person land.
The rule has been applied to a large number of objects including water,
gas, electricity, explosives, oil, vibrations, poisonous leaves of
trees, a flag post, a revolving chair at a fair ground, acid smuts from
a factory, a car, fire and even at one time gypsies.
In Musgrove v. Pandelis, the court applied Blackburn J‟s test literally
where the collected thing did not itself escape but caused the escape of
something else. In this case, the defendant was held liable under
Rylands v. Fletcher for the escape of a fire which started in the engine
of his car was found to be an object likely to do mischief if it escaped.
The artificiality of this approach was however rejected in Mason v. Levy
Auto parts in relation to a fire which began in wooden packing cases
stored in the defendants land. The test applied was whether the objects
were likely to catch fire and the fire spread outside the defendant‟s
premises.
The liability was a strict one if this occurred.
In A.G. v. Corke a landowner was held liable under Rylands v. Fletcher
for permitting the camping on his land of gypsies (caravan-dwellers) who
trespassed and committed damage on the neighbouring land. This case was
however received general disapproval in applying the rule in Rylands v.
Fletcher to human beings. The objection has been that „things‟ does not
include humanbeings and that liability in the above case should have
been based on nuisance or negligence.
2. ACCUMULATION
The thing must be brought into the land for the defendant‟s purposes.
The defendant need not own the land into which the thing is brought.
A temporary occupier of land such as a lessee or a person physically
present on the land but not in legal occupation of it such as a licensee
is equally within the scope of the rule and is liable for damage caused
upon escape or a thing he has brought onto the land.
In Charing Cross Electricity Supply Co-v- Hydraulic Power Company, the
rule applied to one who had the statutory power to lay electricity
cables under the highway.
In Rigby v. Chief Constable of North Amptonshire, the court stated that
the rule applied to cases where the defendant was in no sense in
occupation of the land; in this case by firing a canister of gas into
the plaintiffs.
The requirement that the thing should be on the land for the purpose of
the defendant does not mean that it must benefit the defendant.
In Smeaton v. Ilford Corporation it was stated that a local authority
which was under a statutory duty to collect sewage collected it for its
own purposes within the rule in Rylands v. Fletcher.
Where the thing is naturally present on the defendant cannot be liable
for its escape under
Rylands-v-Fletcher. The escape of weeds, rocks and floodwater is thus
outside the scope of therule but recent decisions have established
possibility of can action in nuisance for such escape.
The accumulation must thus be voluntary.
3. NON-NATURAL USER OF LAND
This is the most flexible and elusive ingredient of liability. Blackburn
J. understood „natural‟ to mean things naturally on the land and not
artificially created. However uncertainty crept as a result of Lord
Cairns qualification that must be „a non-natural user‟ of the land.
Through a series of cases, courts have come to look upon „natural‟ as
signifying something which is ordinary and usual even though it might be
artificially instead of non-artificial. Non-natural use of land was
explained by the Privy Council in Richard v. Lothian as per Lord Moulton.
„It must be some special use bringing with it increased danger to others
and must not merely be the ordinary use of the land or such a use as is
proper for the general benefit of the community.‟
What is natural is now viewed differently in different cases.
Non-natural use of land is generally constituted by certain activities
as the storage on the land in bulk of water, electricity, gas and the
collection of sewage by local authorities.
It is however, arguable that many of the above examples should be held
to be natural use according to the Privy Council‟s definitions as being
for the general benefit of the community. In British Celenese Ltd v.
A.H. Hunt Ltd, it was held that the benefit derived by the community
fromthe manufacturing of electrical and electronic components made the
use of land for such purpose and the storing of strips of metal foil
thereon a natural use of the land.
It is thus to be noted that the scope of „non-natural user‟ of land has
narrowed over the years.
The decision will now depend on the facts of each case. It has been held
that generating steam or electricity is not „non-natural‟ but that
storing of industrial water under pressure, or gas and electricity in
bulk is a non-natural use.
4. ESCAPE
There is no liability under the rule unless there is an escape of the
substance from the land where it is kept. In Read-v-Lynns & co Ltd. the
defendants operated on ammunition factory as agents of the Ministry of
Supply. The plaintiff was an appointed inspector for the ministry. In
the course of carrying out her duties in the factory, an explosion
occurred causing her injuries. She based her claim against the
defendants on Rylands-v-Fletcher making no assertion that the defendants
had been negligent. It was held that Rylands-v- Fletcher was
inapplicable because there had been no escape of the thing that
inflicted the injury. The House of Lords defined escape as:
“Escape from a place where the defendant had occupation and control over
land to a place which is outside his occupation or control.”
It was stated further in this case that Rylands-v-Fletcher is
conditioned by 2 elements;
a) The condition of escape from the land of something likely to do
mischief if it escaped.
b) The condition of non-natural user of the land.
The House of Lords emphasized that the absence of an escape was the
basis of their decision in this case.
5. DAMAGE
Rylands –v-Fletcher is not actionable per se and therefore there must be
proof of actual damage.This appears to mean actual damage to person or
property and it excludes a mere interference with the plaintiff‟s
enjoyment of this land, such as would be a ground in an action in nuisance.
Damage recoverable under the rule is limited to damage to person or
property.
In Hale-v-Jennings Bros, the court held that an occupier of land was
entitled to damages for personal injury under the Rule in
Rylands-v-Fletcher.
In Cattle-v-Stocker Waterworks co, it was held that purely economic loss
was not recoverable.
*DEFENCES TO THE RULE IN RYLANDS v. FLETCHER *
1. CONSENT OF THE PLAINTIFF
If the plaintiff has permitted the defendant to accumulate the thing the
escape of is complained of, then he cannot sue if it escapes.
Implied consent will also be a defence; thus a person becoming a tenant
of business or domestic premises that the time when the condition of the
adjoining premises occupied by the landlord is such that the happening
of the Ryland v. Fletcher type is likely to ensue, is deemed to have
consented to take the risk of such an event occurring.
In Kiddle-v-City Business Properties Ltd, the plaintiff became a tenant
of the defendant in a house below the house occupied by the defendant
(Landlord). The gutter of the Landlord’s house was blocked and when it
rained, an overflow of rainwater from the blocked gutter at the bottom
of the sloping roof in possession of the Landlord and above the tenant‟s
premises damaged the stock in the tenant’s premises. It was held that
the Landlord had a defence as the tenant impliedly consented to the risk
of rainwater overflowing into his premises.
If the accumulation benefits both the plaintiff and the defendant, the
plaintiff may be deemed to have consented to its accumulation e.g. where
for the benefit of several occupants‟ rainwater is accumulated on the
roof or a water closet installed or water pipes fitted, the several
occupants are deemed to have consented.
On the other hand, the defence is not available as between a commercial
supplier of gas in respect of gas mains under the highway. In any event
an occupier will not be presumed to have consented to installations
being left in a dangerously unsafe state.
2. CONTRIBUTORY NEGLIGENCE (PLAINTIFF‟S OWN DEFAULT)
If the damage is caused solely by the act or default of the plaintiff
himself or where the plaintiff is contributorily negligent, he has no
remedy.
If for instance a person knows that there is danger of his mine being
flooded by his neighbors operations on adjacent lands and courts the
danger of doing some act which renders the flooding probable, he cannot
complain, as stated in Miles-v-Forest Rock Granite Co.Ltd.
In Dunn v. Birmingham Canal & Co, where the plaintiff worked a mine
under the canal of the defendant and had good reason to know that they
would thereby cause the water from the canal to escape into this mine,
it was held that they could not sue in Rylands v. Fletcher when the
water actually escaped and damaged their mine. Cockburn C. J. said; “The
plaintiff saw the danger, and may be said to have courted it.”
3. ACTS OF THIRD PARTIES (ACTS OF A STRANGER)
Where the occupier of land accumulates things on his land, the rule will
not apply if the escape of the thing is caused by the unforeseeable act
of a stranger.
In Rickards v. Lothian the plaintiff failed in his claim against the
defendant where a third party had deliberately blocked up the waste pipe
of a lavatory basin in the defendant premises, thereby, flooding the
plaintiff‟s premises.
The basis of the defense is the absence of any nature of control by the
defendant over the acts of a stranger on his land and thus the burden is
on him to show that the escape was due to the unforeseen act of a
stranger without any negligence on his own part.
If on the other hand, the act of the stranger could reasonably have been
anticipated or its consequences prevented, the defendant will still be
liable.
While it is clear that a trespasser is a „stranger‟ for this purpose,
other person included in this term depend on circumstances.
The occupier is of course liable for the defaults of these servants in
the course of an independent contractor unless it is entirely collateral.
He is liable for the folly of a lawful visitor as well as the misconduct
of any member of his family he has control over.
It has also been argued that he ought to be responsible for guests and
licensees on his land but a distinction ought to be taken here or it
would be harsh to hold an occupier liable for the act of every casual
visitor who has bare permission to enter his land and of whose
propensities to evil he may know nothing of e.g. an afternoon caller who
leaves the garden gate open or a tramp who asks for a can of water and
leaves the tap on.
Possibly the test is, “can it be inferred from the facts of the
particular case that the occupier and such control over the licensee or
over circumstances which made his act possible that he ought to have
prevented it? If so, the occupier is liable, otherwise not.”
As regards the issue of dangerous elements brought on the owners land by
another person, the owner is not liable under the rule as in Whitemorses
v. Standford
4. ACT OF GOD
Where escape is caused directly by natural causes without human
intervention in “circumstances which not human foresight can provide
against and of which human prudence is not bound to recognize
possibility” the defense of act of God applies and the occupier is thus
not liable.
5. STATUTORY AUTHORITY
Sometimes, public bodies storing water, gas, electricity and the like
are by statute exempted from liability so long as they have taken
reasonable care.
It is a question of statutory interpretation whether, and, if so, to
what extent liability under Ryland-v-Fletcher has been excluded.
In Green v. Chelsea Waterworks Co. a main pipe belonging to a waterworks
company which was authorized by parliament to lay the main, burst
without any negligence on the part of the company and the plaintiff
premises were flooded; the company was held not liable.
On the other hand, In Charing Cross Electricity Co v. Hydraulic Power
Co. where the facts were similar, the defendants were held liable. The
defendant had no exemption upon the interpretation of their statute.
The distinction between the cases is that the Hydraulic Power Company
were empowered by statute to supply water for industrial purposes, that
is, they had permissive power but not a mandatory authority, and they
were under no obligation to keep their mains charged with water at high
pressure, or at all.
On the other hand, the Chelsea water works Company were authorized by
statute to lay mains and were under a statutory duty to maintain a
continuous supply of water it was an inevitable consequence and damage
would be caused by occasional bursts and so by necessary implication the
statute exempted them from liability where there was no “negligence‟.
The question whether the rule in Rylands v. Fletcher applies in all its
strictness to local authorities has been considered but not decided.
VICARIOUS LIABILITY
The expression “vicarious liability” signifies liabilities which A may
incur to C for damage caused to C by the negligence or other tort of B.
It is not necessary that A should not have participated in any way in
the commission of the tort nor that a day owed in Law by A to C shall
have been broken.
What is required is that A should stand in particular relationship to B
and that B‟s tort should be referable in a certain manner to that relation.
The commonest instance in Law is the liability of a master for the torts
of his servants. Vicarious liability generally arises from a contract
service
MASTER-SERVANT RELATIONSHIP
WHO IS A SERVANT?
Since vicarious liability generally arises from a contract of service
(“servant”) not a contract of services (“independent contractor”) it is
important to determine the indications of a contract of service.
In an often cited statement in Short v. J & W Henderson Ltd Lord
Thankkerton said that there are four indications of a contract of service;
a) The master’s power of selection of is servant
b) The payment of wages or other remuneration
c) The master’s right to control the method of doing the work, and
d) The master’s right of suspension
This list has been found helpful in determining whether a master-servant
relationship exists but it is not conclusive. It is not possible to
compile an exhaustive list of all the relevant considerations. The court
stated in Market Investigation Ltd v. Minister of Social Security (1969
) per Cooke J:
The most that can be said is that control will no doubt always have to
be considered, although it can no longer be regarded as the sole
determining factor; and that factors which may be of importance are such
matters as whether he hires his own equipment, whether he is own
helpers, what degree of financial risk he takes, what degree of
responsibility for investment and management he has, and whether and how
far he has an opportunity of profiting from sound management in the
performance of his task.
The control test is however not conclusively determinant of
master-servant relationship especially when dealing with professionals
or men of a particular skill.
In Morren v. Swinton the defendants engaged a firm of consultant
engineers to supervise the construction of certain sewage works. Under
the contract, the defendants were supposed to appoint a resident
engineer (to be approved by the consultants) to supervise the works
under the general supervision and control of the consultants. The
plaintiff was appointed as a resident engineer by the defendant and
approved by the consultants pursuant to the terms of the contract. He
was paid by the defendant and was entitled to holidays with pay and was
liable to be dismissed by the defendants. He was however delegated to
the consultants and was under their general supervision and control
Held: Absence of control by the defendant was not necessarily the most
important test. Theother factors were enough to show that the plaintiff
was clearly employed by the defendant under a contract of service.
It is thus important to state that whether or not a contract of service
exists will depend on the general nature of the contract and no complete
general test exists. More helpful is the well-known statement of Denning
L. J. inStevens v. Brodribb Co. Pty. Ltd.
“It is often easy to recognize a contract of service when you see it,
but difficult to say wherein the distinction lies. One feature which
seems to run through the instances is that, under a contract of service,
a man is employed as part of a business, and his work is done as an
integral part of the business; whereas under a contract of services, his
work, although done for the business, is not integrated into it but is
only an accessory to it.”
An independent contractor will commonly be paid “by the job” whereas a
servant will generally receive remuneration based upon time worked. But
a piece worker is still a servant; and a building contractor is under a
contract of service notwithstanding that it may contain provisions for
payment by time.
Once the Master-servant relationship is established, the master will be
liable or all torts committed by the servant in the course of the
employment.
a) Hospitals
It has held that radiographers, house surgeons, house time-assistant
medical officers and probably staff anesthetics are employees of the
hospital authority for various liabilities. But visiting consultants and
surgeons are not employees of the hospital and thus the hospital is not
liable.
In Hillyer v. St-Bartholomew’s Hospital the plaintiff bought an action
against the governor of a hospital for injuries allegedly caused to him
by negligence of an operating surgeon. The hospital was a charitable body.
Held: That the action was not maintainable. The court further stated
that the only duty undertakenby the governors of public hospital towards
a patient who is treated in the hospital is to use due care and skill in
selecting their medical staff. The relationship of master and servant
does not exist between the governors and the physicians and surgeons who
give their service at the hospitals (i.e. who are not servant of the
hospital.) The court further stated that the nurses and other attendants
assisting at the operation cease, for the time being, to be the servant
o the governor, in as much as they take their orders during that period
from the operating surgeon alone and not from the hospital authorities.
Where there is a contract between the doctor and the patient, the
hospital is not liable.
A hospital is thus liable for negligence of doctor and surgeons employed
by the hospital authority under a contract of service arising in the
course of the performance of their professional duties. The hospital
owes a duty to give proper treatment to its patients.
In Cassidy v. Minister of Health the plaintiff entered a hospital for an
operation of this left hand, which necessitated post-operational
treatment. While undergoing the treatment he was under the care of a
surgeon who performed the operation and who was a whole-time assistant
medical officer of the hospital, the house surgeon and members of the
nursing staff, all of whom were employed under a contract of service. At
the end of the treatment it was found that his hand had been rendered
useless.
Held: The hospital was liable
A hospital may also be liable for breach of duty to patients to provide
proper medical service although it may have delegated the performance of
that duty to persons who are not its servants and its duty is improper
or inadequately performed by its delegate.
An example is where the hospital authority is negligent in failing to
secure adequate staffing as where a delegate is given a task, which is
beyond the competence of a doctor holding a post of seniority.
b) Hired Servants
A difficult case arises where A is the general employer of B but C, by
an agreement with A (whether contractual or otherwise) is making
temporary use of B‟s services.
If B, in the course of his employment commits a tort against X, is it A
or C who s vicariously liable to X? It seems that it must be one or the
other but not both A&C.
In Mersoy Docks and Harbour Board v. Coggins and Griffith (Liverpool)
Ltd. A employed B as the driver of a mobile crane. A let the crane to C
together with B as driver to C. The contract between A and C provided
that B should be the servant of C but was paid by A and A alone had the
power to dismiss him. In the course of loading a ship, X was injured by
the negligent way in which B worked the crane. At the time of the
accident C had the immediate direction and control of the operations to
be executed by B and crane e.g. to pick up and move a pieces of cargo,
but he had no power to direct how B should work the crane and manipulate
its controls.
Held: That A as the general or permanent employer of B was liable to X.
The court held that there is a very strong presumption that a servant
remains to be the servant employer although he may be the servant of the
hirer.
The question whether A or C is liable depends on how many factors; e.g.
Who is the paymaster, who can dismiss, how long does the alternative
service last, what machinery is employed etc.
The courts have however generally adhered to the view that the most
satisfactory test is, who at the particular time has authority to tell B
not only what he is to do, but how he is to do it. This is question of
fact involving all he circumstances of the case.
c) Loan of Chattels
In Omrod v. Crosville Motor Services Ltd. (1953) the owner of a car was
attending the Monte Carlo motor rally. He asked a friend to drive his
car from Birkernhead to Monte Carlo where they were to have a holiday
together. During the journey, on a diverted route, the car was involved
in an accident.
Held: At the time of the accident, the car was being used wholly or
partially for the owner’s purposes and thus the friend was an agent of
the owner and in so far as the friend was liable of negligence, the
owner was vicariously liable for his negligence.
BUSINESS LAW NOTES
LIABILITY IN RESPECT OF AN INDEPENDENT CONTRACTOR
The employer is generally not liable for torts committed by an
independent contractor. The employer is however liable if he is deemed
to have committed the tort.
This may occur in the following instances:
1. Whether the employer has authorized the commission of the tort
In many circumstances, the law will attribute to a man the conduct of
another being, whether human or animal, if he has instigated that conduct.
He who instigates or procures another to commit a tort is deemed to have
committed the tort himself.
In Ellis v. Sheffield gas Consumers Co the defendant who had no
authority to up the street employed a contractor to open trenches and
lay gas pipes along a street.
The contractor carelessly left a heap of stones on the footpath; the
plaintiff fell over them and was injured.
Held: the defendants were liable since the contract was to do an illegal
act, a public nuisance. Thedecision would have been different had it
been lawful for the defendant to dig up the streets.
2. Torts of Strict Liability
The employer is liable in those circumstances e.g. in Rylands-v-Fletcher
the employer was held liable for the acts of his independent contractors
as this was a case of strict liability.
These in torts of strict liability, the employer will be liable even
where the tort e.g. the escape is caused by the negligence of an
independent contractor.
In Terry v. Aston, the defendant employed an independent contractor to
repair a lamp attached to his house and overhanging the footway. As it
was not security fastened, the lamp fell on the plaintiff, a passer-by
and the defendant was held liable, because: it was the defendant‟s duty
to make the lamp reasonably safe, the contractor had failed to do that.
Therefore, the defendant has not done his duty and is liable to the
plaintiff for the consequences.
Here liability was strict.
3. Negligence
When there is an element of personal negligence on the part of the
employer as to make him liable for the acts of an independent
contractor. E.g. Where the employer is negligent or careless in
employing an independent contractor for instance, where the contractor
is incompetent.
Failure to provide precaution in a contract where there is risk of harm
unless precaution is taken can make the employer liable for the tort of
the contractor.
In Robinson v. Beaconsfield Rural Council, the defendant employed an
independent contractor, one hook, to clean out cesspools in their district.
No arrangements were made for the disposal of the deposits of sewage
upon being taken from the cesspools by hook. Hook men deposited the
sewerage on the plaintiff land.
Held: The defendants had a duty to dispose the sewerage and, on
construction of the contract, they had not contract with hook for
discharge of this duty (disposing of the sewage) hence they were liable
for the acts of the hook’s men in disposing it on to the plaintiff land.
4. Where the Duty of Care Is Wide
An example is where the independent contractor is dealing with hazardous
circumstances, or works which from their very nature, pose danger to
other persons.
In Holiday v. National Telephone Co, the defendant, a Telephone Company,
was lawfully engaged in laying telephone wires along a street. They
passed the wires through tubes, which they laid a trench under the level
of the pavement.
The defendants contracted with a plumber to connect these tubes at the
joints with lead and solder to the satisfaction of the defendant foreman.
In order to make the connections between the tubes, it was necessary to
obtain a flare from a benzoline lamb of applying heat to the lamb. The
lamb was provided with a safety valve.
The plumber dipped the lamp into a caldron of melted solder, which was
placed over a fire on his footway. The safety valve not being in working
order caused the lamb to explore. The plaintiff, who was passing on the
highway was splashed by the molten solder and injured.
Held: The defendant were liable because having authorized the
performance of work which fromits nature was likely to involve danger to
persons using the highway were bound to take care that those who
executed the work for them did not negligently cause injury to such persons.
ESSENTIALS FOR THE LIABILITY OF THE MASTER
For a master to be liable for his servant’s torts the tort must have
been committed “in the course of employment”. An act is done in the
course of employment if;
a) It was a wrongful act authorized by the master
b) It was a wrongful and unauthorized mode of doing something authorized
by the master.
In London County Council v. Caltermoles (Garages) Ltd, the defendant
employed a general garage hank, part of whose job involved moving
vehicles around the garage. He was only supposed to push the vehicles
and not to drive them. On one occasion, he drove a vehicle in order to
make room for other vehicles. Whilst doing so, he negligently damaged a
vehicle belonging to the plaintiff.
Held: That the negligent act was within the course of the garage hand’s
employment although he had carried his duties in an unauthorized manner.
His master was thus vicariously liable.
In Muwonge v. Attorney-General of Uganda, the appellant’s father was
killed during a riot. The shot which killed him was fired by a policeman
who had seen the appellant’s father ran towards a house and had
concluded that the appellant‟s father was a rioter.
Held: The firing of the shot was act done with the exercise of the
policeman‟s duty in which thegovernment of Uganda was liable as a master
even though the act was wanton, unlawful and unjustified.
If the act is not done within the course of employment, the master is
not liable. In Twine v. BeansExpress a van driver employed by the
defendant had been expressly forbidden to give lifts to unauthorized
persons and a notice to this effect was displayed on the dashboard. The
van driver gave a lift to a person who was killed in a subsequent
accident due to the negligence of the van driver. The widows of the
deceased brought an action against defendant.
Held: The action by the widows failed because the driver was acting
outside the course of his employment. In this case the act was expressly
unauthorized.
GENERAL GUIDELINE IN DETERMINING WHETHER AN ACT WAS COMMITTED DURING THE COURSE OF EMPLOYMENT
1. Look at the mode of doing the work the servant is employed to do
In Century Insurance C v. Northern Ireland Road Transport Board, one of
the respondent‟s employees was delivering petrol to garage. While the
petrol was flowing from the lorry to the tank, he lit a cigarette and
negligence threw away the lighted match which caused an explosion
damages the appellant‟s property. The action of the employee was treated
as being within the course of employment. On appeal it was held that the
respondents were liable for the damage caused for such an action, whilst
for the comfort and convenience of the employee could not be treated as
isolated act as it was a negligent method of conducting his work.
In Bayley v. Manchester Sheffield and Lincolnshire Railway the plaintiff
was in a train traveling to Macclesfield and he explained this to the
mistakenly believed that the plaintiff was the wrong train (that train
was not traveling to Macclesfield) and violently ejected the plaintiff
who suffered injuries.
Held: The defendants were liable because the porter was acting within
the cause ofemployment.
2. Whether the act was authorized within the limits of time and space e.g. if one is employed to work between 8.00 a.m. and 5.00 p.m., the master is only liable for torts committed within that time frame.
Ruddiman & Company v. Smith, the plaintiff was using the lower room of
the defendant„s housewhile the defendant used the upper room for
carrying on business. In the upper room there was a lavatory. The clerk,
after duty, went to the lavatory to wash his hands but on turning on the
tap and finding no water, went away without turning the tap off. When
water turned on the morning, it overflew into the lower room and damaged
the plaintiff goods.
Held: The employer was liable for whether or not the use of the
lavatory. Within the scope of theclerk‟s employment, it was an event
incidental to his employment.
In Storey v. Aston, the defendant, a wine merchant, sent his car man and
clerk to deliver wine and pick up empty bottles. On their way back, they
diverted to visit the clerks house in the course of which they
negligently knocked down the plaintiff and injure him.
Held: The defendant was not liable for the injury caused by the
negligent driving of the car manfor he was, that time, engaged in a new
and completely unauthorized journey.
3. Whether the act was the initiative of the servant or the master had a certain control.
In Warren v. Henlys Ltd, erroneously believing that the plaintiff had to
drive away from the garage without paying or surrendering coupons for
petrol which had been put in the tank of his car, a petrol pump
attendant used violent language to him.
The plaintiff paid his bill and gave the necessary coupons and after
calling the police, told the attendant that he would report him to his
employers.
The pump attendant then assaulted and injured him. In an action for
personal injuries against his employers.
It was held that the defendants were not liable for the wrongful act of
their employee. Since the act was one of the personal vengeances and was
not done in the course of employment; it not is an act of a class which
the employee was authorized to do or a mode of doing an act within that
class.
In Poland v. John Parr and Sons, Arthur Hall, a carter was employed by
John Parr. Parr and his son were conveying a wagon with bags of sugar.
Arthur, on his way home for dinner was walking else to the wagon. The
plaintiff, a schoolboy, was walking home in the same direction with his
hand upon one of the bags of sugar.
Honestly and reasonably thinking that the boy was stealing, Arthur gave
him a blow on the back of his neck as a result whereof he fell and the
wheel of the wagon injured his foot which was amputated.
Held: In the circumstances, the carter had implied authority to make
reasonable efforts to protectand preserve the defendants property; that
the violence exerted was not so excessive as to take his act outside the
scope of authority and that the defendant were liable.
4. Where there is an express prohibition
An express prohibition does not negate liability i.e. a master does not
escape liability simply because he had an express prohibition. For
liability to be determined, two factors are considered:
i. Whether the prohibition limits the sphere of employment. If it does,
the master is not liable for an act done outside the sphere. (Sphere).
ii. Where the prohibition deals with the contract within the sphere of
employment. If it does, the employer will be liable. (Mode)
In Canadian Pacific Railway Co v. Lockhart a servant of the appellant
Company in disregard of written notices prohibiting employers from using
private cars for the purpose of the company’s business unless adequately
insured, used his uninsured motorcar as a means of execution of work
which he was ordinarily employed to do in the course of which he injured
the respondent.
Held: The means of transport was incidental to the execution of work,
which the servant wasemployed to do and that the prohibitions of the use
of an uninsured motorcar merely limited the mode of executing the work,
breach of the prohibition did not exclude the liability of the company
to the respondent.
In Rand v. Craig, Carters were employed by a contractor to take rubbish
from certain works to his dump and were strictly forbidden not to hip it
anywhere else. Some of the carters, without knowledge of the
contractors, and in contravention of their orders took the rubbish to a
piece of unfenced land belonging to the plaintiff as it was nearer the
works that the dump of contractor.
Held: The illegal acts complained of where not within the sphere of the
carter’s employment and consequently the contractor was not liable for them.
5. Whether the act was a deliberate criminal act
In Lloyd-v-Grace Smith & Co., the plaintiff had sought advice from the
defendants, a firm of solicitors, whose managing clerk conducted
conveyance work without supervision. He advised the plaintiff to sell
some property, fraudulently persuading her to sign certain documents
that transferred the property to him. He disposed of it and kept the
proceeds.
Held: Even though the fraud had not been committed for the benefit of
the employers, nevertheless they were liable, for the clerk had been
placed in position to carry over such work and had acted throughout in
the course of his employment.
