negligence law by okiya
TRANSCRIPT
CAVENDISH UNIVERSITY
UGANDA
BACHELOR OF LAWS (LLB)
MODULE STUDY PACK
LLB 125; NEGLIGENCE AND STRICT LIABILITY
PREPARED
BY
Mr. OKIYA JIMMY JANSKY
EMAIL, [email protected],
PHONE, +256781410203 +256759748994
PREPARED BY Mr. OKIYA JIMMY JANSKY
LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAi
"Education is a progressive discovery of our own ignorance."
NEGLIGENCE AND STRICT LIABILITY TEACHING SCHEDULE:
CAVENDISH FORMAT.
Cavendish University Uganda
Year One Semester Two
Teaching Schedule
Module Code / Name LLB 125: Negligence, Strict Liability
Description
Discussion of the basic doctrines of the law of negligence e.g. the duty to take care
(Donoghue v. Stevenson); res ipsa loquitur, remoteness of damage etc. Economic and
technological developments and the law of negligence.
Week Delivery Method Activities Resources Comments
1
Lecture Welcome students to the course
Talk about what is expected of
the students throughout the
semester
Talk about students’ expectations
Module description to students
and learning outcomes
.
Tutorial
PREPARED BY Mr. OKIYA JIMMY JANSKY
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Discussion of the first lecture
2
Introduction to the Law of Negligence
Duty of Care
Breach of Duty
Proof of Negligence
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Principles on the Law of Torts,
1st Edition, London,
Butterworths & Co, 1959
Tutorial Question & Answer Session
3 Test of proving Negligence
Causation & Remoteness
of damages
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Principles on the Law of
Torts, 1st Edition, London,
Butterworths & Co, 1959
Assessment Coursework
4 Lecture Remedies to Negligent Actions
Contributory Negligence
Defences in Negligence
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Principles on the Law of Torts,
1st Edition, London,
Butterworths & Co, 1959.
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
Tutorial Question and answer session
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LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAiii
1973
Ames Phillip S., General
Principles on the Law of Torts,
1st Edition, London,
Butterworths & Co, 1959
5 Lecture Strict Liability
Nuisance Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Principles on the Law of
Torts, 1st Edition, London,
Butterworths & Co, 1959
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Tutorial Question & Answer Session
6 Lecture Occupier`s Liability
Rule in Ryland Vs Fletcher
Tutorial Feedback on the coursework
7 Lecture Defences in Occupier`s Liability
Remedies in Occupiers liability
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Principles on the Law of
Torts, 1st Edition, London,
Butterworths & Co, 1959
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Principles on the Law of
Torts, 1st Edition, London,
Butterworths & Co, 1959
Tutorial Question & Answer session
8 Lecture Vicarious Liability
Introduction to Vicarious
Liability
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Principles on the Law of Torts,
1st Edition, London,
Butterworths & Co, 1959
Assessment Coursework
9 Lecture When can a master be liable for a
servant`s actions
Defences
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Principles on the Law of Torts,
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1st Edition, London,
Butterworths & Co, 1959
Tutorial Question and answer session
10
Lecture Defamation
Introduction to Defamation
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Principles on the Law of Torts,
1st Edition, London,
Butterworths & Co, 1959
Tutorial Feedback on coursework
11
Lecture Proof of Defamation
Defences in Defamation
Remedies to defamation
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Principles on the Law of Torts,
1st Edition, London,
Butterworths & Co, 1959
Tutorial Question and answer session
12 Lecture Damages
Types of Damages
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Principles on the Law of Torts,
1st Edition, London,
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Tutorial Butterworths & Co, 1959
13 Assessment of Damages
Remoteness of Damages
Heydon J.D, Economic Torts,
London, Sweet & Maxwell,
1973
Ames Phillip S., General
Principles on the Law of Torts,
1st Edition, London,
Butterworths & Co, 1959
Tutorial Question & Answer Session
Learning outcomes:
On completion of this module a student should:
1. Understand the concept of negligence
2. Evaluate and analyse the tort of negligence and its
applicability in Uganda
3. Evaluate and analyse the issue of strict liability, invasion of
privacy, nuisance, occupiers liability and its applicability in
Uganda
4. Advise on the different remedies in case of breach and
available defences
Reference:
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Core Texts
Tony Weir, (1996); A Casebook on Torts, 6th Edition London Sweet & Maxwell 1988, 8th
Edition, Sweet & Maxwell.
Recommended Texts
Heydon J.D, Economic Torts, London, Sweet & Maxwell, 1973
Ames Phillip S., (1959); General Principles on the Law of Torts, 1st Edition, London,
Butterworths & Co,
Page Keeton & Robert E. Keeton, Torts Cases and Materials American Casebook Series,
West PUBLISHING Co
P.S.Atiyah, (1967); Vicarious Liability in the Law of Torts, London, Butterworths.
Prepared by:
OKIYA JIMMY JANSKY.
Lecturer/Researcher
Cavendish University Uganda,
Opp. United States of America Embassy
Nsambya, Ggaba Road,
Kampala, Uganda.
Email; [email protected] [email protected]
Phone Contacts; 0781410203, 0701512503
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TABLE OF CONTENTSUNIT ONE: NEGLIGENCE......................................................................................................................1
INTRODUCTION.....................................................................................................................................1
THE ELEMENTS......................................................................................................................................1
DUTY OF CARE...................................................................................................................................1
BREACH OF DUTY OF CARE.........................................................................................................18
CAUSATION OR DAMAGE OR INJURY.......................................................................................... 29
DEFENCES.............................................................................................................................................37
NEGLIGENCE IN PARTICULAR DUTY AREAS...............................................................................43
DANGEROUS PREMISES AND OCCUPIER LIABILITY..................................................................47
NEGLIGENT MISSTATEMENT...........................................................................................................65
UNIT TWO: STRICT LIABILITY.........................................................................................................82
INTRODUCTION...................................................................................................................................82
FACTS.....................................................................................................................................................83
JUDGEMENT..........................................................................................................................................84
LIVERPOOL ASSIZES.......................................................................................................................84
EXCHEQUER PLEAS........................................................................................................................84
COURT OF EXCHEQUER CHAMBER............................................................................................84
HOUSE OF LORDS............................................................................................................................87
SIGNIFICANCE......................................................................................................................................89
CHANGE TO THE LAW...........................................................................................................................89
ASSESMENT OF THE APPLICATION............................................................................................89
APPLICATION OF RYLAND’S PRINCIPLE IN SEVERAL COUNTRIES...................................94
REMEDIES..............................................................................................................................................97
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DEFENCES.............................................................................................................................................97
UNIT THREE: VICARIOUS LIABILITY IN TORT...........................................................................99
INTRODUCTION...................................................................................................................................99
GENERAL RULE.................................................................................................................................102
WILLFUL TORTS OF SERVANT:......................................................................................................106
UNIT FOUR: NUISANCE......................................................................................................................111
INTRODUCTION.................................................................................................................................111
PRIVATE NUISANCE.....................................................................................................................111
PUBLIC NUISNCE...............................................................................................................................116
WORKERS COMPENSATION PROCEDURES.....................................................................................116
MOTOR ACCIDENT COMPENSATION................................................................................................120
UNIT FIVE: DEFAMATION.................................................................................................................122
INTRODUCTION.................................................................................................................................122
REMEDIES TO DEFAMED PARTIES................................................................................................125
UNIT SIX: LIABILITY FOR FIRE & DANGEROUS PREMISES..................................................126
INTRODUCTION.................................................................................................................................127
LIABILITY FOR FIRE.....................................................................................................................127
POSITION UNDER COMMON LAWS...............................................................................................128
DANGEROUS PREMISES...................................................................................................................132
LICENCEE............................................................................................................................................133
UNIT SEVEN: PRINCIPLES GOVERNING THE AWARD OF DAMAGES IN CIVIL CASES.138
INTRODUCTION.................................................................................................................................139
DEFINITION AND CLASSIFICATION OF DAMAGES...............................................................139
CLASSIFICATION OF DAMAGES....................................................................................................141
RULES AND PRINCIPLES IN AWARDING DAMAGES.................................................................151
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WHERE ASCERTAINMENT IS DIFFICULT OR IMPOSSIBLE......................................................155
AGGRAVATION AND MITIGATION OF DAMAGES....................................................................167
CONTRIBUTION AND APPORTIONMENT.....................................................................................172
DISTINCT RULES FOR MEASURE OF DAMAGES IN CONTRACT & TORT.............................172
SOME RECOMMENDATIONS ON PRACTICE & PROCEDURE...................................................177
REFERENCE.......................................................................................................................................180
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UNIT ONE: NEGLIGENCE
INTRODUCTION
Negligence has been so pervasive, that it has transformed even the strict liability tort of trespass,
such that fault is required. The case of Stanley v Powell [1891] 1 QB 86, it was held
that where there is no intent, and negligence is negative, the plaintiff cannot recover whether he
framed the action in trespass or case. Thus, it has been a unifying force in tort law, by requiring
fault before liability is imposed.
However, it has also had a counter-balancing potential, as by expanding liability laterally, it has
made the question of causation more complex extending it to omissions, and other more complex
connections which weren’t ever envisaged by the tort of trespass. Further, the concept of fault,
introduced to provide interpersonal justice, has now expanded to consider questions of social
needs, distributive justice and stricter liability. With the mid-20 th Century, the law of tort has
become more a tool to compensate accident victims, and distribute cost among those best able to
bear it, than an admonitory tool. Thus, the lack of consensus as to the purpose of tort law, and its
relative inability to cope with the question of accident compensation in a welfare-driven society
has meant that the system is under constant stress.
THE ELEMENTS OF NEGLIGENCEIntroduction
Negligence is the breach of a legal duty of care by an inadvertent act or omission which injures
another person.
Negligence involves:
A duty of care - the D owed the P a duty to take care in
the circumstances.
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A breach of that duty - the D’s act or omission failed to
reach the standard of carefulness required by the
circumstances and so there is a breach of the duty to take
care.
Causation - the D’s breach caused the P’s damage
Damage - the damage P suffered is legally recognizable
and not too remote from the breach of duty.
Donoghue v Stevenson [1932] AC 562 established the tort of negligence. Lord
Atkin saying that “In English law, there must be and is some
general conception of relations giving rise to a duty of
care…”
The House of Lords found that the P could recover damages from the manufacturer, even
though there was no contract between the parties, where negligence allowed the snail to enter the
bottle. Lord Atkin enunciated the neighbour principle:
“You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbor.”
Who then is your neighbor?
“Persons who are so closely and directly affected by one’s
act that one ought reasonably to have them in
contemplation.”
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1. The Duty of Care
For an action in negligence, the D must owe a duty of care to the P in the given circumstances.
Lord Atkin in Donoghue v Stevenson [1932] AC 562 said:
“You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbour. Who then in law is my neighbour? The
answer seems to be persons who are so closely and
directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are
called in question.”
Thus, the test to establish a duty of care is:
(i) Reasonable foreseeability
(ii) Proximity (or the tests which have replaced it) where there isn’t an established duty of care.
The Notion of Reasonable foreseeability
The duty of care is primarily premised on reasonable foreseeability, as no liability will arise in its
absence. This is a question of law, and in standard cases, such as motor accidents, manufacturers
of defective goods and so on, the foreseeability of harm where there is a lack of care, it is
obvious in the circumstances, and the precedents are well-established, and it is not an issue.
Reasonable Foreseeability as an Essential Test for Duty
Nova Mink v Trans Canada Airlines [1951] 2 D.L.R. 241, during whelping
season, mink, they are prone to devour their young when frightened by noise. The Court held
that once the defendant is “apprised” of this harm, they may be required to alter their activities
such that the risk is reduced or eliminated - that is desist from flying low over the ranch - to show
that reasonable care had been taken.
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Palsgraf v Long Island Railway Co. (1928) 162 N.E. 99 The plaintiff was
standing on the platform to catch a train, when another man jumped onto a train as the doors
were closing, and got caught between the doors. The train guards pushed him into the train, and
in the process, a paper package of fire crackers fell under the train, the impact causing an
explosion. As a result, scales toppled over, and injured the platform. The Court held that the
plaintiff was not reasonably foreseeable, as they were at the opposite end of the platform. That is,
they were beyond the range of reasonably foreseeable peril. It was held that “the victim does not
sue derivatively or by right of subrogation to vindicate an interest invaded in the person of
another….he sues for breach of duty to him.” That is “a wrong to another cannot be the basis of
the plaintiff’s claim and even less a wrong to a mere property interest.”
The Scope of Reasonable Foreseeability
Chapman v Hearse (1961) 106 CLR 112 Chapman, due to his negligent driving
was involved in an accident, on a dark and gloomy night. His vehicle had turned over, and he
was thrown onto the highway. A Doctor Cherry whilst in the process of helping him, was struck
by Hearse, and killed. The question was whether Chapman was contributory negligent. Chapman
argued that it was not reasonably foreseeable, as it was not reasonable to foresee that Doctor
Cherry would have come been struck and killed in rescuing Chapman. However, the Court held
that it was “a consequence of the same general character that was reasonably foreseeable as not
unlikely to follow a collision on a dark, wet night upon a busy highway” (at 120). That is, it is
not necessary to foresee the precise sequence of events, just that something of the general
character is reasonably foreseeable in are a sequence of events which are not unlikely in the
circumstances. It was held that it was reasonably foreseeable that a person aiding others in an
accident could be injured themselves. All that is required is that consequences of the same
general kind are not unlikely.
The Concept of Proximity
With Jaensch v Coffey, a new element of negligence was required to establish a duty of care
in cases where there isn’t an established duty of care; there is a requirement of proximity
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between the parties, for negligence to lie. However, this has increasingly been put in doubt in the
cases of Hill v Van Erp and Perre v Apand, where the HC has raised grave doubts as to its
usefulness as a universal determinant of a duty of care.
Proximity at its Height!
Jaensch v Coffey (1984) 155 CLR 549 Deane J cited Lord Atkin’s explanation
that where there is a chance for intermediate examination, of the bottle before it reached the
consumer, then there was no longer a requisite ‘proximity’ and that the consumer is no longer
within the class of ‘neighbours.’ That is Deane J cited that Lord Atkin stated that the duty of
care based on reasonable foreseeability would be too wide unless restricted by the notion of
proximity. The plaintiff’s husband had been injured due to the defendant’s negligence, in a motor
cycle accident. The plaintiff, having seen her husband struggling for life in the hospital,
developed severe anxiety and depression caused by her worry about her husband’s state of health
over a period of weeks, Mrs Coffey argued that it was reasonably foreseeable that a spouse
would suffer psychiatric disability as a result of injury to her husband. However, the Court held
that reasonable foreseeabilty alone was too broad a principle. However, it was held that Mrs
Coffey’s involvement at the hospital when her husband was injured, in the aftermath was
sufficient to satisfy proximity requirements. It was developed as a limitation on the neighbour
principle. The question is what is involved in the notion of nearness and closeness. The HC held
that there were three kinds of relationships, which fulfilled this:
(i) Physical proximity (in the sense of space and time)
(ii) Circumstantial proximity, such as an overriding proximity
(iii) Causal proximity.
Cook v Cook (1986) 162 CLR 376, the defendant was a learner driver, whom the
plaintiff invited to drive with him. The Plaintiff was injured in an accident due to the negligence
of the Plaintiff, because the Plaintiff had accelerated instead of braking when faced with a
dangerous situation. The HC held that whilst the duty of care owed to general motorists is the
same as those for other motorists, as the plaintiff knew of the skill levels of the plaintiff, and
accepted the risks, the defendant, in relation to the plaintiff will be judged according to the
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standards of a reasonable learner driver. However, the plaintiff was still successful, as it was held
that the defendant’s negligence was so egregious that it did not satisfy the duty of care required
of a reasonable learner driver.
Gala v Preston (1991) 100 ALR 29 Preston and Gala were part of a group of four
youths, who after having consumed a good deal of alcohol, stole a car and crashed it. Preston
was hurt in the crash, and sued Gala for negligence. At first instance, there was a judgement for
him; however, this was reversed by the Full Court of the Supreme Court of Queensland. On
appeal to the HC, Mason CJ, Deane, McHugh, Gaudron JJ held that the parties were not in a
relationship of proximity such as to give rise to a relevant duty of care, since it was not possible
or feasible for a court to determine what was an appropriate standard of care to be expected of
the first appellant as the driver of the vehicle. Brennan, Toohey and Dawson JJ, in separate
judgements, found that Preston would be unsuccessful, for different reasons.
Nagle v Rottnest Island Authority [1993] 112 ALR 393, in this case Nagle
was injured when he dived off a partially submerged rock ledge in the Basin, in Rottnest Island.
His injuries were caused when he struck himself on one of the rocks which were adjacent to the
platform, and below the low water mark. Rottnest Island Authority was under a statutory duty to
manage and control for the benefit of the public the public reserve on the coast of the Island.
That reserve adjoined the Basin. It promoted the Basin as a swimming venue, and encouraged
the public to use it for that and other purposes by installing, maintaining and servicing various
facilities on that part of the reserve which was immediately adjacent to the Basin. Brennan J
dissenting allowed the appeal by Nagle on the basis that:
(i) The respondent brought itself into a relationship of proximity with those visitors who
lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to
any foreseeable risks of injury to which they might be exposed. This was a case in which it was
possible to ascertain the existence of a generalised duty of care without looking to foreseeability,
a concept which in many other situations is the influential, if not decisive, and determinant of the
existence of a relationship of proximity.
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(ii) The giving of a warning that the ledge was unsafe for diving was the action that a reasonable
person in the respondent’s situation would have taken to guard against the foreseeable risk of
injury which existed.
(iii) The likelihood was that the appellant would have been deterred from diving by an
appropriate warning sign.
Bryan v Maloney (1995) 69 ALJR 375 Bryan, a professional builder for the Qs, who
sold it to Mrs Maloney, who upon inspection, found nothing to be wrong with the property.
However, within 6 months, there were cracks in the house, and extensive damage was suffered.
The damage was caused because Bryan hadn’t laid the footings properly. Mrs. Maloney was
successful at first instance. On appeal to the HC, the question was whether the relationship
between Bryan and Mrs. Maloney was sufficiently proximate to attract liability. The Court held
that as a house is the most significant investment a buyer it is reasonably foreseeable that the
builder’s negligence would cause economic loss not only to the first buyer, but also to
subsequent buyers. Further, it was held that there was a causal proximity between subsequent
buyers and the builder. It was held that the relationship between the builder and the subsequent
owners was comparatively similar to that between the builder and the original owners. The HC
held that had the building collapsed and caused personal injury or property damage, the builder
would be liable, so there is no reason why the builder should not be liable for the economic loss
incurred in rectifying the situation. The builder argued that allowing liability to be incurred
would cause an indeterminate liability. However, the HC held that this was not so, as the builder
would only be liable once, after which the building is fixed. Thus, a new, novel tort liability of
economic loss for a subsequent loss to a subsequent owner due to a builder’s negligence was
found. It is worth noting that Brennan J found the notion of proximity to be too elastic to provide
any real test.
Proximity Downgraded or Abolished
Hill v Van Erp (1997) 71 ALJR 487 Hill drew up Mrs. Curry’s will and got Mr
Van Erp to witness the will, which included Mrs. Van
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Erp as one of the beneficiaries. However, s 15(1) of the Succession Act 1981 (Old) states that
where a beneficiary’s spouse witnesses the will, then, that disposition is null and void. So, the
bequest Mrs. Curry had left Mrs. Van Erp went to Mrs. Curry instead, and Van Erp sued Hill for
negligence. Hill admitted the negligence, but argued that she did not owe a duty of care. At first
instance, Mrs. Van Erp was successful. In dismissing the appeal by Hill, the HC took the
opportunity to downgrade the significance of proximity. Dawson J (with whom Toohey J
concurred) stated that:
(i) Proximity is:
(a) Not a unifying principle
(b) Not a universal determinant of the existence of a duty of care.
However it:
(c) Expresses a result, rather than a process
(d) And is a convenient way of labeling the extra requirement, in addition to reasonable
foreseeability to establish a duty of care.
(ii) Further, he put forward a three stage inquiry in order to establish a duty of care:
(1) Is the harm reasonably foreseeable? Noting that more than reasonable foreseeability alone is
required
(2) Where a new category of liability is suggested, examine established categories by way of
analogy to achieve incremental development.
(3) Determine whether the incremental development is justified by reference to policy
considerations.
(iii) He held that imposing liability on a solicitor was consistent with community standards, and
further, that liability was not a determinant. It was held to be determinant by the contents of the
will. Further, it does not conflict with contractual obligations, as contractual and tortious liability
can be concurrent. Further, he held that there needs to be special consideration in relation to
wills, as the defects will not become apparent until after the death of the testatrix. The specificity
of the situation with regard to wills in relation to beneficiaries distinguishes it from other third
parties. It was held that finding the solicitor liable in such a situation does not curtail their
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legitimate pursuit of commercial advantage. It was further held that the community relied on
solicitors as specialists.
This decision brought Australia in line with other common law countries
Perre v Apand (HC) [1999] 73 ALJR 1190, a pand was the distributor of potato
seeds, and had negligently provided seeds diseased seed to the Sparnons - the owners of the
property next to the Perres. They produced a crop infected with bacterial wilt. Whilst the Perres
crop was not infected, they exported the bulk of their crop to WA, where there was legislation
prohibiting the sale of potatoes grown, harvested, packed or cleaned anywhere within a 20 km
radius of where the infected crop was. The Perres sued Apand for damages for negligence. It was
not disputed that the loss suffered by the Perres was reasonably foreseeable and the evidence
revealed that Apand knew persons such as the appellants would be liable to suffer economic loss
in the event of an outbreak of bacterial wilt.
Apand argued that imposing a duty of care in this situation would impose an indeterminate
liability for an indeterminate time and to an indeterminate class of persons. Further, they argued
that a duty to take care to avoid economic loss to another was inconsistent with commercial
standards, these being that one is free to gain an economic advantage. However, the Court held
that there was a determined class of people - those within 20 km radius of the affected property,
and that it did not unreasonably deter economic freedom. The HC allowed the appeal, and in
doing so, replaced the notion of proximity with five different tests:
(1) The protected Interests and salient features test (Gleeson CJ and Gummow J)
(2) Recognised Legal Rights Test (Gaudron J)
(3) Three Stage Caparo v Dickman test (Kirby J)
(4) Incremental Approach (McHugh and Hayne JJ)
(5) Factors in Combination and Incremental approach (Callinan J)
Protected Interests and Salient Features Test
Protected interests are those kinds of detriment the law is willing to protect. Examples:
A. Exportation sales
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B. Loss of land value
C. Loss of tenants
Salient features => Must identify the salient features which combine to give rise to a sufficiently
close relationship to attract a duty. Examples:
A. The defendant’s control over the nature and location of the experiment
B. Plaintiff’s inability to take steps to protect themselves against the risk exposed.
C. The legislation imposing a 20 km quarantine zone made loss certain upon disease.
Having applied the test to the fact situation, Gleeson CJ and Gummow J found that there was a
sufficiently close and direct relationship between Perre and Apand to attract a duty of care.
Recognised Legal Rights Test
It was noted that the law recognises pure economic loss in some areas already. This states that a
duty of care is established where a person knows or ought to know where their acts or or
omissions may impair the Plaintiff’s rights, and Plaintiff is not in a position to protect their own
interests. It was held that in such situations, the law ought to impose a Duty of Care to take
reasonable care not to act in such a way as to impair reasonably foreseeable rights.
Three Stage Caparo v Dickman Test
In order to determine whether a Duty of Care exists, three questions need to be answered:
(1) Was it reasonably foreseeable that conduct or omissions are likely to cause harm to a
category of persons whom P belonged to?
(2) Does a relationship of proximity or neighbourhood exist between the plaintiff and the
defendant?
(3) Is it fair, just and reasonable that the law imposes a Duty of Care for the plaintiff’s benefit?
It was held that terms such as “reasonable”, “fair” “proximity” etc. are simply labels to direct the
judge to think about the conceptual framework of negligence actions. None of these should be
elevated to the status of pre-conditions.
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Incrementalism
This test was developed as there was a concern with predictability. Are there good reasons to
expand the Duty of Care beyond the existing categories? In order to answer this, three questions
must be asked:
(1) Does it come within an est. Duty of Care?
(2) If not, was the harm suffered foreseeable?
(3) If so, the Court should examine analogous cases where the Court has determined whether a
Duty of Care has examined. In doing this, the Court should look at the policy considerations, and
the reasoning, and apply these in the specific case.
This test has been criticized for its temporal specificity.
Combination of Factors and Incrementalism
This test is compendious (slightly incoherent). It was held that courts should move incrementally
and cautiously, and in doing so look at factors such as proximity and foreseeability.
To Whom is a Duty of Care Owed?
1.Consumers
Donoghue v Stevenson [1932] AC 562.The Court found that there was a sufficiently
close relationship between the consumer and the manufacturer to attract a duty of care. Lord
Atkin enunciated the neighbour principle which stated that there is a requirement to take
reasonable care to avoid acts or omissions which you can reasonably foresee will injure your
neighbour. Further, a neighbour was held to be anyone who is so closely and directly affected by
your acts. They are people who you ought to reasonably have in contemplation when acting or
refraining from acting.
Grant v Australian Knitting Mills [1932] AC 85 Doctor Grant bought two pairs
of underpants and singlets. He developed an acute rash, and spent three months in hospital as a
result, and his doctor feared for his life. This was caused by an excess of sulphates The HofL,
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applying Donoghue v Stevenson found that the manufacturer was liable. The manufacturer
argued that there was no duty of care, as there was an opportunity for intermediate examination.
However, the HofL held that as the defect was latent, Doctor Grant couldn’t reasonably be
expected to know of the defect, and further, as the garments were worn as expected to be worn,
there was a duty of care.
2.Road Users
Bourhill v Young [1943] AC 92 Young, a motorcyclist was killed in a motorcycle
accident, due to his negligence. Bourhill was a bystander, who was standing on the other side of
a tram when the accident occurred. He sued Young’s estate for nervous shock resulting from the
accident. The HofL held that whilst Young owed a duty of care to many, there was no such duty
towards an unseen bystander.
3. Users and Purchasers of Premises
Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, before this
case, the duty of care owed to users of premises differed upon the category of the user. For
example, a different duty was owed to invitees compared to that owed to a trespasser. In this
case, Zaluzna, upon entering Safeway store in an affluent Melbourne suburb, slipped and fell on
the floor, as a result of the floor being damp. She sued the store. The HC held that occupiers have
a general duty to take reasonable care to safeguard from injury to those who enter the land. The
Court further held that the distinction between invitees, licencees and trespassers was artificial,
and thus, was abolished.
Bryan v Maloney (1995) 69 ALJR 375, this is the case of the builder and the
subsequent owner. The Court held that there was a duty of care despite the fact that the only
connecting factor between the parties was the house.
4.School Children
Geyer v Downs (1977) 138 CLR 91, an eight year old child was hit on the head with
a bat by another child when they were playing before school. The Court held that the principal of
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the school owed a duty of care to its students, and that this is to be fulfilled by providing
supervision while the school gates are open.
5.The Unborn Child
Watt v Rama [1972] VR 353, the plaintiff’s mother was involved in a car accident
whilst pregnant. The child was born with brain damage as a result of the defendant’s negligence
in the accident. The plaintiff argued that her injuries occurred during the course of the accident,
or because of it. The Court held that the plaintiff was born with injury due to pre natal negligence
can sue. It held that the duty of care involved a duty to take care not to injure a person where it is
reasonably foreseeable that the injury will occur. In the current circumstances, a potential duty
exists if and when the child is born. The actual duty is crystallised when the child is born, and
acquires a legal identity.
Lynch v Lynch, a mother was found to owe a duty of care to an unborn child who was
injured as a result of injuries caused by her negligent driving. However, the Court restricted the
application of such a duty strictly to the circumstances of the case, as there is a very low
threshold which needs to be crossed to establish a duty of care in motor vehicle accidents.
6.Rescuers
Chapman v Hearse (1961) 106 CLR 112 The question in this case was whether
Chapman had been contributorily negligent in relation to Doctor Cherry’s death, who was struck
by Hearse when he was rescuing Chapman, who was lying on the road as a result of a car
accident caused by his negligence. The Court held that the threshold for establishing a duty of
care is low when dealing with a rescuer, and thus, Chapman was contributorily negligent.
7.Other Categories
Home Office v Dorset Yacht Co. Ltd [1970] AC 1004 Juvenile offenders
housed in a Boy’s Home were taken on an excursion to an island. Due to the warden’s
negligence, some of the boys escaped using a yacht owned by the Dorset Yacht Co. They sued
the Home Office. The Court found that the Home Office owed a duty of care to those in the
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vicinity. However, this was held to be confined by the circumstances and proximity of the said
property.
Weeler & Co v Foot and Mouth Research Institute [1965] 3 WLR
1082 GET FACTS!!!!!!!!!!!!
Alcock v Chief Constable of Police [1992] 1 AC 310, there was a disaster at a
football stadium when a stand collapsed due to the negligence of the defendants who allowed it
to become overcrowded, 95 people were crushed to death. The game had been televised live at
the time. Thus, not only were people at the stadium witness to this terrible tragedy, but people at
home witnessed it on their television screens. This was a class action for nervous shock. The
HofL held that there needed to be a sufficient relationship of proximity required to give rise to a
duty of care. This involved “close ties of love and affection” as well as some sort of physical
proximity in time and space.
Wartime
Shaw Savill v The Commonwealth (1940) 66 CLR 344, this was an action
by Shaw Savill against the Commonwealth for damages for the damage caused to the motor
vessel Coptic in a collision between the HMAS Adelaide and the Coptic. It was held that where
an action of negligence is brought against the Commonwealth for acts done in the course of
active naval or military operations against the enemy must fail.
Legal Profession
Rondell v Warsley [1969] 1 AC 191 and Gianarelli v Wraith(1988) 62
ALJR 611 both held that barristers are immune from negligence actions for in-court work and
this also extends to some out of court work. This is because it is preferable not to interfere with
the judicial process. This immunity extends to solicitors acting as advocates.
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Hall v Simons [2000] 3 All ER 673, in three separate cases, clients brought claim
their former solicitors, which was defended on the basis that they were immune from an action in
negligence. The HofL considered whether the immunity should be abolished, or whether it was
still justified on policy grounds, especially the public interest in preventing collateral attacks on
court decisions, and in ensuring that advocates respected their overriding duty to the Court. It
was held that immunity should be abolished, on the basis that immunity is not required to deal
with collateral attacks on civil and criminal decisions, and that the public interest is satisfactorily
safeguarded by independent principles and powers of the Court. Further, it was held that the
immunity was not required to ensure that barristers respected their duty to the Court. This was
based on the fact that doctors, who had both a duty to the patients and a duty to adhere to an
ethical code, are not immune from negligence actions. Further, experiences in other jurisdictions
such as Canada demonstrate that such a view is rather pessimistic, and moreover, there are many
benefits with abolishing immunity. These include the end of an anomalous exception to
providing remedy for a wrong committed, and there was no fear of a flood of actions. A barrister
by performing his duty to the court to the detriment of his client could never be called negligent,
and there is no possibility of a finding of negligence where a barrister his conduct was bona fide
dictated by his perception of his duty to the Court.
Hill v Van Erp (1997) 71 ALJR 487, the HC has allowed negligence actions against
solicitors in certain, restricted circumstances.
The Case of the Unforeseeable Plaintiffs
Bourhill v Young [1943] AC 92 In this case, the plaintiff was unable to recover, as it
was held that it was unforeseeable that an unseen bystander would suffer from nervous shock as
a result of an accident, and thus, no duty of care existed.
Levi v Colgate-Palmolive Ltd (1941) 41 SR (NSW) 48, the plaintiff had
received a free sample box of products from the defendants. This included a sachet of bath salts,
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which the plaintiff used, resulting in a rash, which lasted for a long time. In determining whether
a duty of care existed to especially sensitive plaintiffs two questions must be asked:
(i) If the Defendant owes a Duty of Care and breaches it, and an abnormal plaintiff by reason
of the abnormality suffers an injury, can they recover on this basis?
(ii) Does the fact that the plaintiff has an abnormality create a special duty of care?
The Court held that the answer to the first question was in the affirmative, and the second
question was negative.
Further, it was held that if the defendant knows of the plaintiff’s abnormality, then a special duty
of care is found. However, no such duty exists in the normal course of events.
Haley v London Electricity Board [1965] AC 778, the plaintiff was a blind
man who fell into a ditch dug by the London Electric Board, as the safety fence they had erected
was too low for him to detect it with his cane. The London Electric Board argued that he was an
unforeseeable plaintiff. However, the HofL held that it was reasonably foreseeable that a blind
person would walk along the pavement, and could be injured as a result of inadequate safety
measures.
Mt Isa Mines v Pusey (1971) 125 CLR 383 The plaintiff was an engineer and
witnessed two electricians who worked for the company being electrocuted. The plaintiff went to
rescue them and saw the resulting horrible burns. He developed a psychiatric disorder which was
latent when he saw this. The HC found that he was reasonably foreseeable, despite a pre-existing
susceptibility, and he was awarded damages.
Qualifications to the Duty of Care
Novus Actus Interveniens
Chapman v Hearse (1961) 106 CLR 112, in this case Chapman argued that
Hearse’s actions in hitting Doctor Cherry constituted a novus actus interveniens, and thus, he
no longer owed a duty of care, as the causal connection was broken. However, the Court held
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that it was exactly this sort of action which was reasonably foreseeable, and thus, there was no
novus actus interveniens and Chapman still owed a duty of care.
The Opportunity for Intermediate Examination
Farr v Butters [1932] 2 KB 606 Crane manufacturers sold a crane, unassembled to
builders where a crane erector would assemble it for the builders. The erector when he was
erecting the crane found that parts of it were ill-fitting, and accordingly marked the areas with
chalk. However, before the defects were remedied, the erector began working on it; it fell on and
killed him. It was held that as the defects were discoverable on reasonable inspection, and having
in fact been discovered by the deceased, the manufacturers did not owe a duty of care.
Grant v Australian Knitting Mills [1936] AC 85. The Court held that there was
no opportunity for intermediate examination in this fact situation, as the excess of sulphates in
the underwear were a latent defect, and it was not reasonable to expect Doctor Grant to have
discovered this upon examination.
Different Kinds of Losses in negligence
Physical Damage to Person or Property
This is the most straight forward kind of loss, and the Courts are not in the least hesitant to find a
Duty of Care in these situations.
Nervous Shock
Bourhill v Young, Mt Isa Mines v Pusey and Jaensch v Coffey were
examples of nervous shock cases.
McLoughlin v O’Brian [1983] AC 410, a mother suffered nervous shock as a result
of seeing her family in hospital. One of the members died due to their injuries. It was held that
there is a three stage test to find for nervous shock:
(i) Does the person fall into a class of persons able to sue?
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(ii) Proximity in time and space
(iii) How was the shock caused?
Quayle v the State of New South Wales [1995] Aust Torts Reports An
aboriginal man was taken by his brother to a local hospital, suffering from alcohol withdrawal
symptoms. The nurse on duty handed him over to police even though he had committed no
offence. The deceased hung himself in a police cell. The police asked the brother to identify the
body in the back of a police van on a public street. Not only the brother, but the mother and other
brothers were also compensated for nervous shock in the form of prolonged and pathological
grief caused by the police and the hospital’s actions. This case was not appealed, mainly due to
the unwanted publicity it would attract if appealed.
2. Breach of Duty in negligence
The Negligent Act
The Plaintiff must prove that the defendant has breached the standard of care required of a
reasonable person. The standard of care is a question law, and whether this has been breached is
a question of fact. The standard is that of a reasonable person. Is the risk foreseeable? There are
two main areas which determine the standard of care, and whether it has been breached:
(i) Foreseeability is a necessary, but not sufficient condition for the breach. The D must take
precautions against the risk.
(ii) The calculus of negligence determines the significance of the risk.
Vaughan v Menlove (1837) 132 ER 490, the defendant’s hayrig caught on fire,
and this spread to the neighbour’s property. This occurred despite the neighbour’s warning of the
hazard. However, the defendant had disregarded it as he believed it wasn’t a risk. The defendant
argued he ought not to be responsible where he bona fide did not believe in a significant risk. It
was held that it should be assessed against the other person.
“Negligence is the omission to do something which a
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do, or something which a prudent and reasonable man
would not do.”
Blythe v Birmingham Waterworks (1856) 11 Exch 781 per Alderson B the
factors which ordinarily regulate conduct are:
“whether the act or omission in question is one which a reasonable person would recognize as
posing an unreasonable risk must be determined by balancing the magnitude of the risk in the
light of the likelihood of an accident happening, the possible seriousness of its consequences,
against the difficulty, expense or other disadvantage of desisting from the venture or taking a
particular precaution.”
Wyong Council v Shirt (1980) 146 CLR 40, the plaintiff was an inexperienced
water skier on a remote lake. Wyong Council had dredged a channel of deep water to allow boats
to get from the edge. They had put up a notice stating “Deep Water.” Upon seeing the notice, the
plaintiff came off his skies, and as a result, bumped his head on the rock bed and suffered severe
injuries as a result. He sued in negligence for their negligence in erecting the misleading sign.
Mason J noted that foreseeability of risk and likelihood are two different concepts, and
foreseeability doesn’t necessarily relate to likelihood. It was held that a risk is foreseeable as
long as it is not “far-fetched or fanciful.” Whether a reasonable person in the Defendant’s
position would have foreseen a risk to the plaintiff or a class of persons in the Plaintiff’s position,
if so, the tribunal of fact would ask what a reasonable person in the Defendant’s position would
do in response. The HC found that the jury’s finding against the Council was open to them as “a
risk of injury which is remote in the sense that it is extremely unlikely to occur or may
nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and
therefore foreseeable.”
Nagle v Rottnest Island Authority (1993) 177 CLR 423 Nagle was injured
when he dived off a partially submerged rock ledge in the Basin, in Rottnest Island. His injuries
were caused when he struck himself on one of the rocks which were adjacent to the platform, and
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below the low water mark. Rottnest Island Authority was under a statutory duty to manage and
control for the benefit of the public the public reserve on the coast of the Island. That reserve
adjoined the Basin. It promoted the Basin as a swimming venue, and encouraged the public to
use it for that and other purposes by installing, maintaining and servicing various facilities on
that part of the reserve which was immediately adjacent to the Basin. The HC found on appeal
that the injury in diving off the rock was a foreseeable risk, and that foolhardiness was not
relevant, and agreed with the trial judge, and found for the plaintiff.
H v Royal Alexandria Hospital (1990) Aust Torts Reports 81-000, the
plaintiff was a haemophiliac child who was given blood transfusions in March 1982 and
September 1983. He contracted HIV as a result of one of these transfusions, and contracted
AIDS. He sued the hospital for negligence. However, it was initially unknown that AIDS could
be contracted through blood transfusions. It was held that the Defendant was not negligent in
respect to the transfusion in 1982, as the risk could not been foreseen in March 1982.
Damage of Negligence
Likelihood
Bolton v Stone [1951] 1 All ER 1078, the plaintiff was hit by a cricket ball from the
cricket ground across the road from her house. It was 90 metres from the batsman to her house.
The Plaintiff’s neighbour testified that balls had entered her backyard five to six times in over
thirty years. Balls were rarely hit out of the ground. Lord Reid held that “the test to be applied
here, is whether the risk of damage to a person…was so small that a reasonable man…from the
point of view of safety would have thought it right to refrain from taking steps to prevent the
damage. It was found that the likelihood in this case was negligible, and the appeal failed.
Wagon Mound No 2 [1966] 2 All ER 709, the owners of two ships sued a charterer
alleging that the loss of their ships to fire was caused by the Defendant’s negligence in
discharging large quantitities of furnace oil into the harbour. The Privy Council found that it was
reasonably foreseeable that the oil spilt on the water may catch fire. It was argued that the
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officers of the Wagon Mound would regard furnace oil as being very difficult to ignite on water,
and that they would have regarded it as a “possibility but one which would become an actuality
only in very exceptional circumstances“. The Privy Council held that Bolton v Stone did
not preclude negligence for all small risks. Lord Reid held that:
“A reasonable man would only neglect such a risk if he had some valid reason for doing so:
example, that it would involve considerable expense to eliminate the risk. He would weigh the
risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone
had been an unlawful activity there can be little doubt but that Bolton v Stone would have
been decided differently. In their lordships’ judgment Bolton v Stone did not alter the general
principle that a person must be regarded as negligent if he does not take steps to eliminate a risk
which he knows or ought to know is a real risk and not a mere possibility which would never
influence the mind of a reasonable man. What that decision did was to recognise and give effect
to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if
the circumstances are such that a reasonable man, careful of the safety of his neighbour, would
think it right to neglect it.”
Seriousness
Paris v Stepney Borough Council [1951] AC 367, the plaintiff lost his second
eye as a piece of metal entered his eye due to the defendant (his employer’s) negligence in
failing to provide safety goggles. It was held that “in considering…the precautions which an
employer ought to take for the protection of his workmen, it must…be right to take into
account…the likelihood of an accident happening, and the gravity of the consequences.” It was
further held that there it is a duty of employers to take additional precautions where they know of
the gravity of the consequences to specific employees; where they have knowledge of special
circumstances which affect the gravity. It was held that by Lord McDermott that “what may
happen to the person is as important as the actions.” Thus, the risk and degree of injury are
relevant factors in determining whether a breach has occurred.
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DAMAGE OR INJURY
Watt v Hertfordshire County Council [1954] 1 WLR 835, the Defendant
was the employer of a fireman who received an emergency call about a woman trapped under a
heavy vehicle very close to the fire station. As the special vehicle used to carry a heavy jack used
for such purposes was out, the fireman loaded it onto a normal fire truck. He had to in the course
of getting to the scene, apply his brakes suddenly. The jack hit the plaintiff, and the plaintiff sued
the employer for negligence. The employer was found to be negligent at first instance. The Court
of Appeal found that they were not negligent and it was held that the utility of the conduct must
be considered, and balanced against the risk taken. It was held that “in measuring due care, you
must balance such a risk against the measures necessary to eliminate the risk…you must balance
the risk against the end to be achieved…the waving of life or limb justifies taking a considerable
risk.”
Daborn v Bath Tramways [1946] 2 All ER 333, the defendant was driving a left-
hand drive ambulance, and had a sign which stated that it was a left-hand drive ambulance. It
collided with a bus when turning right. It was held that the utility of using the vehicle
outweighed the risk.
Practical Alternatives
In looking at whether an alternative is practical, factors such as expense, convenience etc. of
implementation needs to be taken into account.
Caledonia Colliers v Speirs (1957) 97 CLR 202, the plaintiff’s husband was
killed at a level crossing when hit by a train carrying trucks which lost control and ran down a
steep embankment. No measures such as points on the line, which would stop derailed trains,
were taken. The escape of the trucks was reasonably likely to occur and it was reasonably
foreseeable that the Plaintiff would be injured. It was held that a finding of negligence was open
to the jury. The Defendant argued that installing the points in the line was not a practical
alternative as there would be inconvenience in slowing trains down, and a risk of derailment. The
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HC held that the danger was such that it required drastic measures, and further that the
Defendant’s argument gave undue weight to derailment.
Vozza v Tooth (1964) 112 CLR 316, the plaintiff an employee of the defendant was
injured when a bottle burst when it was removed from the pasteuriser. He was provided with
leather gloves to safeguard from injury. However, these were too thin to prevent injury. The jury
found that the employer had been negligent. The HC reversed this decision on appeal as it was
held that the P had not adduced sufficient evidence that it would have been reasonable to install
machine handling or practical to provide thicker gloves. In fact, it was found that thicker gloves
would have meant that the P could not handle the bottles. It is up to Plaintiff to show that
alternatives are practical.
Nelson v John Lysaght (1975) 50 ALJR 104, the Plaintiff slipped and injured
them whilst carrying a heavy coil of wire. It was held that the provision of non-slip shoes were
insufficient safety measures. Measures put in place to improve safety after the accidents were
accepted as evidence of reasonably practical measures that could have been put in place to avert
the accident.
Mercer v Communication for Road Transport (1936) 56 CLR 580, the
Plaintiff was injured when the Defendant’s tram crashed, as the driver had collapsed. The
conductors had made every effort to stop the tram. The Plaintiff argued that an automatic
stopping system was a reasonably practical alternative which could have been implemented.
These had been installed in all electric trains in Sydney, but not the trams. However, the
defendant argued that such a system was not in place in any other tramway. However, the HC
held that a finding of negligence was open to the jury, as general trade practice may fall short of
the required standard of care.
Time to Assess Risk
Roe v Minister for Health [1954] 2 QB 66, two plaintiffs who went to hospital
for a minor operation were given a spinal anaesthetic which had been stored in a container of
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phenoyl. They were paralysed waist down due to the presence of phenoyl in the anaesthetic
which had seeped through invisible cracks in the glass container in which the anaesthetic was
stored. It was held that the Defendant hadn’t been negligent by the standard of medical
knowledge in 1940. The Court noted that the plaintiff’s situation was terrible; it wasn’t possible
to compensate under tort, and to do so would go against community standards.
Who is the Reasonable Person
Glasgow v Muir [1943] AC 448, in which Lord MacMillan held that legal liability, is
limited to actions which a reasonable person of ordinary intelligence would contemplate. In
dealing with the reasonable person, the idiosyncracies of the defendant are excluded, and the
reasonable person is free from over-apprehension and over-confidence
Paptonakis v Aust Telecommunications Commission (1985) 156 CLR
7, described the reasonable person as the “hypothetical reasonable person on a hypothetical,
Bondi tram.” (Deane J).
Age
McHale v Watson (1966) 115 CLR 199, it was held in this case that a child is
judged upon the standards of a reasonable person of the same age and experience as the plaintiff
Physical and Intellectual Disability
McHale v Watson (1966) 115 CLR 199, the Defendant was a boy of 12 who threw
a metal spike towards a wooden post, which hit a girl of 9. The plaintiff argued that the test
should be one which determined the standard of care in relation to the reasonable man. However,
the HC found that childhood is not idiosyncratic, and found that the trial judge had not
misdirected the jury by saying that the liability of a twelve year old is different to that of an
adult, it was held that whilst abnormal or idiosyncratic characteristics can’t be taken into account
that does not preclude a lack of foresight or capacity not special to himself, but relevant to all in
his station in life. It was held that youth is judged by the capacity or prudence of a person of that
age.
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Adamson v Motor Vehicle Insurance Trust (1956) 58 WALR 56, the
plaintiff was run over by a Mr B, who was suffering from delusions, and believed that his
workmates were trying to kill him, and that he had to escape. He stole a vehicle and drove
recklessly along the road. The Court found that on the facts, he was not insane at the time of
driving as he knew what he was doing, and knew it was wrong. Further, as a matter of law, it was
found that insanity is not a defence to tortious liability.
Plaintiff’s Knowledge of Defendant’s Competence, Skill or Disability
Cook v Cook (1986) 68 ALR 353. The plaintiff was an experienced driver, who
invited the defendant, a learner driver to drive with him. In the course of their driving, the
defendant accelerated instead of decelerating in trying to avoid a parked car. The HC held that
whilst the D’s conduct should be judged against the same objective test as other drivers in
relation to users of the highway who were unaware of the defendant’s inexperience, the standard
of care owed to the plaintiff was one which is determined by judging their conduct against that of
a reasonable learner driver, as the P knew of the D’s inexperience. However, it was found that
the defendant’s negligence was so gross, that the plaintiff was successful.
Special Skills - Professional and Specialist Standards
Sidaway v Bethlehem Hospital [1984] 1 All ER 1018, the Bolam principle
was used to determine the standard of care required. This stated that a doctor is not negligent if
he/she acts in accordance with practice accepted by a responsible body of doctors. However, it
was held that this test only applied to actual procedures, and not advice given.
Rogers v Whittaker (1992) 175 CLR 479, the P was almost blind in one eye from
age 9, and sought advice from an ophthalmic surgeon with regards to it. The surgeon stated that
appearance and sight would improve if they had a particular operation. The operation was
undertaken with due care and skill. However, the P sued the surgeon for failure to disclose risks,
as she developed sympathetic opthalmia, and lost sight in her good eye. The P was successful at
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first instance. On appeal to the HC, it was held that a medical practitioner that a medical
practitioner has a duty to exercise due skill and care in all aspects of treatment and advice. The
standard of skill and care is that of an ordinary person who professes to have that skill. In order
to determine the standard, the evidence of peers will be taken into account, but is not conclusive.
The Court will decide the matter by giving paramount consideration to the fact that a person has
the right to make their own decisions about their lives. The factors used to determine the
adequacy of the standard of care are:
(i) Nature of treatment
(ii) Patient’s desire for the information
(iii) The temperament and health of the patient
(iv) The general surrounding circumstances
A medical practitioner has to warn the patient of a material risk about the procedure if it is one
which a reasonable patient in the P’s position is likely to give significance to, or if the
practitioner is aware of the particularities of the patient, and knows that the particular patient
would attach significance to it, they have to disclose it.
Proof of Negligence
Generally, the onus is on the plaintiff to prove on the balance of probabilities (BoP) that the
Defendant was in breach of a duty of care.
In some circumstances, there is direct evidence of this, and in others, inferences need to be
drawn. In order to succeed, the Plaintiff must prove that the inference is more probable than not.
These inferences must be drawn from proven facts.
Holloway v McFeeters (1956) 96 CLR 99, the Plaintiff’s husband was struck and
killed by y an unidentified motor vehicle driver. There were no eye-witnesses. However,
evidence from the anterior movements of the deceased, and tyre marks on the roadway suggested
that the deceased was struck whilst crossing the road, along the centre of the road. It was held
that inferences drawn from actual proven facts are just as much evidence as the facts themselves.
Further, it was held that sufficient evidence existed that inferences could be drawn that it was
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more probable than not that the car was driven in a negligent manner and that this caused the
accident.
TNT v Brooks (1979) 23 ALR 945, the Plaintiff’s husband was killed in a road
accident. He was driving a loaded semi-trailer in a northerly direction when there was a collision
between his truck, and another, travelling in the opposite direction. Both drivers were killed, and
there were no witnesses. Three possible scenarios were possible on the facts:
(a) The P’s H was driving on the wrong side of the road
(b) The other truck was driving on the wrong side of the road
(c) Both were driving down the middle of the road.
The HC found that an inference could be drawn that it was more probable than not that the other
vehicle was on the wrong side of the road.
Res Ipsa Loquitor
The event or matter speaks for itself.
Mummery v Irvings P/L (1956) 96 CLR 99, the Plaintiff entered the Defendant’s
shed to buy timber, and saw the Defendant’s foreman working on a circular saw, and moved
towards him, when he was hit by a flying piece of wood. The trial judge had not left the question
of negligence to the jury. It was held that this could be open to the jury defendant upon whether
the jury could draw inferences towards negligence as a result of res ipsa loquitor. It was held
that res ipsa loquitor is not a legal principle, but a “general index to those cases in which mere
proof of an occurrence…constitutes prima facie evidence of negligence.” Evidence was adduced
to partially explain the cause of the wood hitting the plaintiff as the evidence tended to establish
that the wood was thrown by the circular saw. The question wasn’t how the wood flew across the
area, but how it flew from the circular saw. However, the Court couldn’t find for the P as there
was no evidence of the circular saw and many others, and further the P couldn’t rely on res ipsa
loquitor, as some evidence was adduced.
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Scott v London & St Katherine Docks Co [1865] All ER 158-9, it was held
that “where the thing…is under the management of Defendant and the accident is such that in the
ordinary course of things does not happen if those who have the management use proper care, it
affords evidence, in the absence of explanation by the Defendant, that the accident arose from a
want of care.” In this case, a bag of sugar fell on the P’s head, and injured him. The Defendant
called no evidence and the Court found that if Plaintiff could illustrate that the circumstances
were under Defendant’s control, and that the accident would not have accrued except for the
Defendant’s negligence, then the Court is able to find negligence. However, they don’t have to.
This doctrine does not shift the onus of proof from the Plaintiff to the Defendant. It remains with
Plaintiff. However, the Defendant bears the evidentiary onus to adduce evidence if no other
explanation of the injury or accident is produced. Where there is no explanation, the jury may
make a finding for the Plaintiff.
The Effect of the Doctrine
The effect of the doctrine, as held in Mummery v Irvings is that a finding of negligence
MAY result. This isn’t a legal principle that is to be strictly adhered to.
3. Causation or damage or injury
Causation in fact requires that once the plaintiff has demonstrated that the defendant was
negligent, they must further demonstrate that the negligence caused the Plaintiff’s injury.
Causation in law looks at the remoteness of damage.
The ‘But For’ Test
This involves determining whether the injuries would have been suffered but for the defendant’s
negligence.
Barnett v Chelsea & Kensington Hospital Management Committee
(1969) 1 QB 428, the P’s husband fell ill after drinking some tea, and went to casualty to
find that there was only a nurse, as the doctor had gone home. The nurse called the doctor, who
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told him to go home & see his doctor. The husband died five hours later from arsenic poisoning
as there had been arsenic in the tea. The Plaintiff sued the hospital and the doctor, claiming that
their negligence caused her husband’s death. The Court held that the doctor was negligent in not
coming into the hospital, but, the doctor’s negligence hadn’t caused the Plaintiff’s husband’s
death, and thus, he was not liable. Evidence was adduced that even if he had attended, he would
only have been able to give an intravenous drip four hours later. Expert evidence suggested that
his chances weren’t good. The Plaintiff had failed to establish that her husband’s death resulted
from Defendant’s negligence, on the Burden of Proof. If the Plaintiff would have been injured
even if the Defendant hadn’t been negligent, then Defendant’s negligent did not cause the death
in legal terms.
March v Stramare (1991) 171 CLR 448. The defendant had parked his truck in
the middle of the road, with his hazard and rear lights on. The plaintiff, as he was drunk, drove
into the back of the truck. He sued for negligence. It was found that the defendant was not liable
on appeal to the Full Court. On appeal to the HC, the trial judge’s decision was restored. The HC
commented on the limitations of the ‘but for’ test where there are multiple causes. They held
that:
(i) The ‘but for’ test has limited used
(ii) It cannot be an exclusive criterion for causation.
(iii) It must be tempered by value judgements and policy considerations.
(iv) Common sense must be looked at too.
SRA of NSW v Wiegold (1991) 25 NSWLR 500, the plaintiff was employed by
the Defendant and was injured when he fell down a railway embankment at night. He was no
longer able to work after the accident, and was provided with worker’s comp. He grew Indian
hemp to provide sufficient money by selling marijuana. He was arrested, convicted and
imprisoned. He sued the defendant. The question was whether he would have been imprisoned
but for the Defendant’s negligent. The trial judge held that the defendant was negligent. They
held that the ‘but for’ test was singularly inappropriate.
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Chappel v Hart (1998) 156 ALR 517, the plaintiff’s oesophagus was injured during
surgery without negligence. This damaged her vocal cords and she partially lost her voice. She
sued the doctor for negligence in not letting her know of the risk. She argued that had she known,
she would have put off the surgery, and hired the best surgeon possible. The Court discussed the
‘but for’ test with regard to determining whether the plaintiff would have not had the surgery. In
some circumstances the ‘but for’ test doesn’t work. For example, if it had been that the
anaesthetic had gone wrong, where even if she knew of the risks of the perforation, and had put
the operation back, she would still be injured. However, as the damage was due to the
perforation, she was successful.
Increased Risk
M’Ghee v National Coal Board (1972) 3 All ER 1008, the plaintiff was
employed to clean up brick film. He sued the National Coal Board for their negligence in failing
to provide showers to wash the dust off, which caused severe dermatitis. The evidence could not
demonstrate that it was more probable than not that the failure to provide showers caused the
dermatitis. However, it showed an increased risk. The HofL found the employers liable.
Wilberforce LJ held that whilst logically if there was only an increased risk, then this is not the
cause of the injury. However, it was held that on policy grounds, that an increased risk satisfies
the requirement of causation. It was held that where a breach of a duty creates a risk, and there is
a disease, then the party creating the risk should be held liable.
Wilsher v Essex Area Health Authority (1988) AG 1974, in this case
M’Ghee was severely criticised in Wilsher v Essex as the law requires proof of fault.
Demonstrating an increased risk doesn’t satisfy the evidentiary burden to show that the
Defendant’s actions cause the Plaintiff’s injury. They suggested in M’Ghee had succeeded as
both risk factors were provided by the Defendant. In the current fact situation, there was an
innocent contributing factor, and the defendant’s contributing factor, and the P failed, as they
could only demonstrate increased risk, not that the Defendant had caused the injury.
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M’Ghee discussed a “material increase of risk.” This was criticised in Wilsher v Essex as “the
law requires proof of fault causing damage.”
Bennett v Minister for Community Welfare (1992) 176 CLR 408, the
plaintiff was a ward of the state that was injured when trained in a detention center run by the
Defendant. The Defendant acknowledged that Plaintiff, as a ward of the state was entitled to
independent legal rights and advice. They had been negligent in providing this to him. In 1976,
when he was no longer a ward of the state, the Plaintiff got his own independent advice, and was
advised that he could not recover for his injury (negligently). 1979, after getting further advice,
he sued the defendant for the loss of a right to sue, as his original action had become statute
barred. The Minister admitted the negligence, but argued that the negligence was a novus actus
interveniens, and so, there was no causal connection between the negligence and the damage.
However, the HC rejected this argument, holding that had the Defendant fulfilled their duty, the
Plaintiff wouldn’t have had to obtain advice at a later date, and thus, the negligence of the advice
at the later date had no effect. Gaudron, on her own found for the Plaintiff on the basis of
M’Ghee style of reasoning. She suggested that in the absence of evidence that the Defendant’s
breach had no effect, the breach had no effect, and the breach would be taken to have caused or
materially contributed to the injury or damage.
Multiple Sufficient Causes
Alternative Causes
What is the situation where the P’s injury would probably have occurred anyway? E.g. where the
Plaintiff has a pre-existing condition, and the negligence accelerates it.
Holton v Berkshire Area Health A thirteen year old boy fell out of a tree, and injured
his leg. The hospital failed to treat it properly for five days. He would develop osteo-arthritis.
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The HofL held that where on the Burden of Proof, the plaintiff would have developed the
condition regardless of the Defendant’s negligence, the Defendant is not liable.
Von Hartman v Kirk Where the Defendant accelerates death, the Defendant is liable, but
only pays damages for the period of acceleration.
Additional Causes
Where two separate individual causes combine to cause a loss, both the Defendants are liable as
concurrent tort feasors, and both will contribute to the P’s loss.
Performance Cars Ltd v Abraham (1962) 1 QB 33, the defendant drove into the
Plaintiff’s Rolls Royce. A fortnight ago, another car had hit the Plaintiff’s car. There was some
overlap in repairs, and it already needed respraying due to the first accident. The Court held that
the second defendant did not have it flowing to them that they had to pay for the damage caused
by the first accident. The fact that the first tortfeasor didn’t want to take on his share of the costs
shouldn’t affect the second tortfeasor.
Baker v Willoughby [1970] AC 476, the Plaintiff suffered serious injury to his
ankle. He suffered pain, loss of amenity etc. In a hold up three years later, in a hold up, he was
shot in the ankle, and it was so serious that at his leg had to be amputated. The respondent (the
first tortfeasor) argued that he shouldn’t be liable for any loss, as there was no longer a leg. The
appellant argued that the injury hadn’t shortened his life, and so there was still damage. The
Court held that whilst the Court normally takes into account the vicissitudes of life in calculating
damages, this is not applicable in the current situation to suggest that there is no loss. The Court
held that at best, damages could be reduced for pain and suffering, as there is no longer a leg, and
so, the Plaintiff can’t argue pain and suffering on the basis of the leg. The Court held that the
defendant was liable for all loss caused by him except the additional loss caused by the thief.
That is, the defendant couldn’t rely on the second accident to reduce liability for the loss
‘swallowed up’ in the second accident. It was held that damages don’t compensate for the injury
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itself, but for the loss suffered as a result. The second tortfeasor is only liable for the additional
loss only, as you must take the victim as you find them.
Faulkner v Keffalinos (1970) 45 ALJR 80, the defendant injured his leg in as a
result of the original tortfeasor’s negligence. He was further injured in a second accident, causing
him to lose all earning capacity. It was unsure who the second tortfeasor was. The Court held
that where the second incident is a non-tortious act, the Court will take it into account as one of
the “vicissitudes of life.” It was held that the defendant could rely on the second accident
toreduce damages on the “vicissitudes of life” principle. Thus, the first tortfeasor was only liable
for the loss of earning capacity up until the second accident.
Intervening Causation
Chapman v Hearse (1961) 106 CLR 112, the question was whether Hearse’s act in
running over Doctor Cherry was a novus actus which broke the chain of causation between
Chapman’s actions and Doctor Cherry’s death. It was held that as Chapman’s negligence had
contributed to the death, and this was the sort of situation which was foreseeable, Hearse’s
actions weren’t a novus actus and that both were partly liable.
Mahoney v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, an
employee was injured at work, and he sued the employer. The employer argued that Doctor
Mahoney’s negligent treatment had caused, or contributed to the employee’s injuries. The Court
held that exacerbation of injury by medical treatment is a reasonably foreseeable where an injury
is negligently caused. IT was held that negligent treatment doesn’t necessarily break the causal
connection. However, where professional and reliable treatment is ordinarily available, and the
Plaintiff’s injury is exacerbated, then, the doctor providing the medical services is liable for the
degree of exacerbation.
March v Stramare (1991) 171 CLR 506. The defendant had parked his car in the
middle of the road, and the Plaintiff, a drunk driver, drove into his tail. The question was whether
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the drunk drivers dribbling the car into the back of the truck break the causal chai? The Courts
held that the Plaintiff’s negligence didn’t break the causal connection, as where the Defendant’s
wrongful conduct is the very reason for the Plaintiff’s or the third party’s negligent action, then
the causal connection is not broken.
Remoteness of Damage
Re Polemis & Furness Withy & Co Ltd (1921) 3 KB 560, it was held that if
the damage is too remote, the D is not liable. It is known as the “Direct Consequences Test.”
Universe Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The
Wagon Mound No 1) [1961] AC 388 Prior to the Wagon Mound looked at whether
the injury or damage was a direct consequence of the Defenedant’s act. It was criticised due to
the burden placed on the Defendant. The employees of the charterers of the ship allowed a large
quantity of oil to be discharged into Sydney Harbour. It spread across a large part of the bay and
congealed on a wharf and around a ship. The plaintiff’s workmen gave instructions that no
welding work should be carried out. The manager told them to continue. They continued until
the wharf and the ship caught alight. The Privy Council held that Polemis is no longer good law,
and that liability is imposed where the consequences are reasonably foreseeable. It was held that
the d was not liable, as on the evidence, the damage was not reasonably foreseeable.
Universe Tankship (UK) v Miller Steamship Co Pty Ltd (The
Wagonmound (No 2)) [1967] 1 AC 617, per Lord Reid “reasonably foreseeable”
means “A real risk…would occur to the mind of the reasonable man…which he would not brush
aside as far-fetched or fanciful.” The actions were brought by the owners of two ships sued a
charterer alleging that the loss of their ships to fire was caused by the defendant’s negligence in
discharging large quantitities of furnace oil into the harbour. The Privy Council found that it was
reasonably foreseeable that the oil spilt on the water may catch fire. It was argued that the
officers of the Wagon Mound would regard furnace oil as being very difficult to ignite on water,
and that they would have regarded it as a “possibility but one which would become an actuality
only in very exceptional circumstances“. It was held that the defendant is liable for damage
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caused not only by the defendant, but that which fell within by the class or category of damage
which is reasonably foreseeable, if the officers had seen the damage as a possibility, which could
only become an actuality in exceptional circumstances. The defendant’s in Wagon Mound 2
were held liable.
Hughes v Lord Advocate (1963) AC 837, it was held that it does not matter if the
exact circumstances are not foreseen, as long as harm of the kind could be foreseen. That is, it is
not required that the exact manner be foreseen, as long as the harm could be foreseen. Workers
working on a dark street went on a break, leaving an open manhole. They had surrounded it by a
canvas tent, and a ladder to get in. There were red paraffin lamps around it. Two young boys
went in, and one of the lamps was knocked over, and there was an explosion. The younger boy
fell into the manhole as a result, and suffered severe burns. The HofL held that the defendant
owed a duty and breached it, and although the injuries of a different degree weren’t foreseeable,
however, something of the kind was foreseeable. Whilst the manner was unforeseeable, the harm
could have been foreseeable.
Mt Isa Mines v Pusey (1970) 125 CLR 383, the HC held that a mental disorder
of some kind was reasonably foreseeable as a result of their negligence. The degree of that
disorder need not be foreseen. The HC held that what is required is:
A. Not foresight of the particular course of events
B. Only some harm of a like kind.
C. The “comfortable latitudinarian” doctrine - this is a broad test.
Egg Shell Skull Cases
Enunciates the concept of take the plaintiff as you find them, the extent of harm need not be
foreseeable as long as the KIND of harm is foreseeable.
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Dulieu v White (1901) 2 KB 405, the plaintiff may suffer from some pre-existing
weakness or the defendant’s negligent act may cause injury resulting in some susceptibility to
further illness or injury
Smith v Leech Brian & Co (1964) 1 QB 518, the plaintiff was a worker and he
got burnt and this enhanced cancer. As it was reasonably foreseeable that there would be a burn,
responsibility extends to the fatal cancer which developed from an unusual pre-malignant
condition of the victim.
Robertson v Post Office (1974) 2 All ER 737, the plaintiff suffered brain
damage after getting a tenus shot for graze and it was reasonably foreseeable that the medical
treatment would go wrong and therefore the defendant is liable for damage.
Defences
The most common defence argued is that the defendant did not breach the duty. Whether the
duty has been breached is decided by a tribunal of fact. Sometimes, it is argued that no duty was
owed.
Contributory Negligence
The historical position at common law was that it was a complete defence.
Butterfield v Forrester (1809) 103 ER 926, it was held that if the defendant
could establish that the P was guilty of a failure to take care of his or her safety, then, the
defendant is not held to be liable.
Davies v Mann 152 ER 588, the situation espoused in Butterfield was modified by the
“last opportunity rule.” This stated that whoever had the last opportunity to avoid the accident
would be liable.
This rule was further modified in Alford v Magee (1952) 85 CLR 437; The HC
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opportunity to avoid the accident, they should be liable. If the defendant’s actions were later in
time, the defendant would be liable. Where defendant had an advantage, the defendant is liable.
All these rules looked at laying the blame on either party’s shoulders; there was no notion of
apportionment.
Thus, Section 10 of the Law Reform (Miscellaneous Provisions) Act 1965 was enacted, which
means that contributory negligence is no longer strictly a defence, but a plea for the reduction of
damages. The act is a cornucopia of tort reforms in NSW.
Section 10 states: “where a person suffers damage…partly of his own fault, and partly the fault
of any other person…a claim…shall not be defeated, but the damages recoverable…shall be
reduced to such extent as the court thinks just & equitable, having regard to the claimants share
in the responsibility of damage.
Apportionment of responsibility is a question of fact. “Damage” is defined to include any loss of
life and personal injury. “Fault” is defined as “negligence or other act or omission which gives
rise to a liability in tort.”
The apportionment of liability is measured in terms of percentage.
Pennington v Norris (1956) 96 CLR 10; The P was run over by the defendant on
a dark, wet night. He had had a few drinks too. The Tasmanian Supreme Court held that the P’s
damages would be reduced by 50% due to contributory negligence. On appeal to the HC, it was
held that the damages would only be reduced by 20%. The HC held that it must be a “just and
equitable” apportionment of responsibility between P&D.
Generally, in NSW, a 30% reduction is large, 25% still quite large, and a 15-20% reduction more
likely.
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Culpability means the “degree of departure from the standard of care of the reasonable man.”
The act gives wide discretion to the tribunal of fact.
Froom v Butcher (1975) 3 All ER 520; It was held that negligence depends on the
breach of a duty of care, but contributory negligence doesn’t. The P is guilty of contributory
negligence if he ought to reasonably have foreseen that, if he did not act as a reasonable prudent
man, he might be hurt himself. It was a reduction in damages for the failure of the P to wear a
seatbelt.
Lord Denning stated that where the failure to take care for one’s own safety made all the
difference, he would apportion a 25% reduction, where there is a significant contribution, he’d
apportion 15%. (In Froom v Butcher, however, this is in no way binding, just interesting).
Davies v Swan Motor Co (1949) 2 KB 291, for contributory negligence, there is
no requirement that Plaintiff owe a Duty of Care to anyone, just that they failed to take
reasonable care for their own safety.
There is further a question as to whether there is a causal link between the Plaintiff’s loss and
their negligence. It must be foreseeable.
Jones v Livox Quarries (1952) 2 QB 608, the Plaintiff was riding a motor cycle
on the back of a truck. Any reasonable person would think it foreseeable that they would fall off
or that another vehicle could run into the back of their truck. It was held that the Plaintiff is
guilty of contributory negligence, as he should have foreseen that standing on the back of the
truck would lead to injury. He had been injured when someone ran into the back of the truck.
Gent-Diver v Neville (1953) QSR 1, the Plaintiff was a pillion passenger on a
motorbike. He knew that the front light was defective. The collision was due to the fact that the
driver was driving on the wrong side of the road, it wasn’t due to the fact that the headlight
wasn’t on, and so there was no causal link, and thus, no reduction. It was held that there was no
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contributory negligence, because although the Plaintiff knew the lights were defective, the
accident was not caused by defective lights, but by the defendant was on the wrong side of the
road.
The standard of care applicable to the Plaintiff is reasonableness and the calculus of negligence
is applicable.
Caterson v Comm for Railway (1973) 128 CLR 99, the Plaintiff was a man
who lived in the country seeing a friend off at the station. He carried his baggage onto the train
and it moved off. He had left his 14 years old son at the station. The next station was 130 km.
The Plaintiff’s home was 80 kilometers away. The Plaintiff jumped off the moving train, and
was injured. He sued the defendant in negligence for not warning him that the train was moving
off. The question of contributory negligence arose. The Court held that “where the Plaintiff has
been so placed that they can only escape by taking a risk, the question of reasonableness is
weight between the inconvenience caused, and the risk taken.” It was held that the Plaintiff was
not contributorily negligent.
The risk taken by the P is considered in light of the situation of risk created by the defendant
(McLean v Tedman (1984) 155 CLR 306). Plaintiffs are judged quite leniently, as
the plaintiff’s conduct is judged in light of the situation created by the Defendant.
McLean v Tedman (1984) 155 CLR 306, the plaintiff was a garbo, who was
crossing the road when Brambles (one of the defendants) overtook the garbage truck, and ran
over him. The garbo would run back & forth, and emptying the bins on either side. The plaintiff
sues both the driver, and his own employer for negligence. The employer and the driver argue
contributory negligence on the part of the plaintiff. The employer argues that the P had been
instructed not to carry out the work in this way, but to travel up a street, emptying all bins on one
side, then emptying the bins on the other. The defendant argued that the plaintiff was negligent in
not taking a proper lookout for his own safety. However, the HC held that as the employer knew
that all the garbos didn’t adhere to the instructions given, and the employer did nothing about
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this, they were negligent in allowing an unsafe system of work, and the driver, by overtaking at
an unsafe speed created the dangerous situation, and thus, the P was not contributorily negligent.
Volenti Non Fit Injuria
Where a plaintiff voluntarily assumes the risk, this is a complete defence to a claim of
negligence. Where a defendant can show that the plaintiff voluntarily assumed the risk, the
defendant cannot be liable. However, the defence of volenti cannot be pleaded in motor vehicle
or work accidents due to s 76 of the Motor Accidents Act 1988 and s 151o of the Workers
Compensation Act 1987.
In order to show volenti the defendant has to prove that:
1 The plaintiff knew of the facts constituting danger (knew the risk)
2 Fully appreciated the danger inherent in those facts
3 Fully accepted the risk of injury.
American Cigarette Co (overseas) Pty Ltd (No 3) (1987) VR 289, the P
was a smoker who contracted lung cancer who sued in negligence for the defendant’s failure to
warn of the risk of contracting lung cancer. The defendant brought a defence of volenti, stating
that the plaintiff knew or ought to have known the risks of smoking. The plaintiff applied to
strike out the defence. The Courts held that constructive knowledge was not acceptable to
constitute a defence of volenti. It was held that plaintiff’s knowledge must have been express,
and that actual, rather than constructive knowledge was required.
Imperial Chemical Industries v Shatwell [1965] AC 656, the HofL held
that the general rule is that voluntary assumption of risk will NOT defeat a claim of an employee
against an employer.
Insurance Commissioner v Joyce (1948) 77 CLR 39; Latham CJ held that
where the plaintiff is a passenger in a car of a drunken driver, the P should fail on any one of the
following three grounds:
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1. No breach of duty to a willing passenger
2. P was contributorily negligent in getting into the car.
3. The P voluntarily assumed the risk.
Roggenkamp v Bennet (1950) 80 CLR 292, the plaintiff was FULLY aware of
the defendant’s drunkenness and plaintiff accepted the risk. Whether this is so is a question of
fact, and can be inferred from the plaintiff’s behaviour. As a result of the above, it was held that
the defendant had a defence of violenti and plaintiff couldn’t bring an action.
Rootes v Shelton (1967) 116 CLR 383, the plaintiff was a very good water skier
who was performing a cross-over with another skier. This was also known as “Russian
Roulette.” The plaintiff was injured while performing the cross-over, as the driver of the speed
boat was driving too close to another craft, and he collided with it. The defendant argued volenti.
However, the Court held that the P had assumed the risks involved in the “Russian Roulette”
manoeuvre, but not that of the negligent driving of the speed boat driver. The plaintiff’s action
was successful. It was held that the P may accept inherent risks involved with the sport, but not
non-inherent risks, or the risk of negligence outside the sport.
Kent v Scattini (Full Ct of WASC), the plaintiff was a sixteen years old who was
sitting on the steps of the P.O. when they were sprayed by other kids with water. The plaintiff &
her friends armed with similar equipment took after the other car, and were travelling at
80km/hr, when the car failed to take a bend, and the plaintiff was injured. She sued the driver of
the car. The defendant argued volenti. The Court held that she had only assumed risk in regard to
the spraying of water, and not in regard to the defendant’s negligent driving, and thus, the P was
successful. It was held that plaintiff is only barred from recovery for losses which are caused by
the result of a known and accepted risk.
Illegality
This is referred to as a defence, but is usually used to deny that a duty of care existed.
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Henwood v Municipal Tramsways Trust (Sth Aust) (1938) 60 CLR
438, the plaintiff was the mother of the deceased who was killed when leaning out the
window to vomit. The tram carriages were too wide, and went very close to the staunchons. The
deceased was killed when he hit his head on one, whilst vomiting. The defendant was aware of
previous serious accidents, and hadn’t warned people, except to put up a sign to say that leaning
out of tram windows is prohibited. The P sued the trust. The trust argued that the son had
committed an illegal act, and thus, they weren’t liable. On appeal to the HC, McTiernan and
Dixon JJ held that one must look at the purpose of the law which the P has contravened. If it is to
disentitlte P, then, the D is absolved of liability. If not, the defendant is still liable.
Jackson v Harrison Jacobs J held that “a legal duty… presupposes that a tribunal of fact
can properly establish a standard of care…if the courts decline to permit the establishment of an
appropriate standard of care then it cannot be said that there is a duty of care.”
Gala v Preston (1991) 172 CLR 243, four youths stole a car, and went for a joyride,
when they met with an accident. The plaintiff (one of the youths) sued the defendant (the driver
of the car) in negligence. The question was whether the illegal act deprived him of his ability to
sue. Mason CJ, Deane, Gaudron and McHugh JJ held that whilst illegality doesn’t automatically
deprive the P of a right to sue, where they are in a joint illegal enterprise, it is not feasible to
determine the appropriate standard of care, and thus, no duty arises.
Negligence - Particular Duty Areas
Product Liability
Donoghue v Stevenson [1932] AC 262 imposed a duty of care that “a
manufacturer of products…owes a duty to the consumer to take reasonable care.”
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Junior Books v Veitchi held that “manufacturer” is to be broadly understood.
Haseldine v Daw holds repairers liable.
O’Dwyer v Leo Buring [1966] WAR 67 imposes liability for the negligent design of
a product. Adelaide Chemical & Fertiliser Co v Carlyle (1940) 64 CLR 514
imposes liability for the negligent marketing of a product. Norton Aust Pty Ltd v
Streets Icecream Pty Ltd (1969) 120 CLR 635 imposed liability for the failure
to warn of dangers of proper use.
Grant v Australian Knitting Mills [1936] AC 85. The defendants tried to
distinguish this case from D v S as the underwear was easy to inspect. However, as the excess of
sulphates in the underwear was latent, no reasonable inspection would have made it
discoverable.
Running alongside common law liability are statutory provisions which impose liability.
SOGA 1923 whilst it only applies to contracts for the sale of goods implies warranties into
contracts that the goods must:
Have fitness of purpose, be of merchantable quality and cannot be excluded.
However, it is of limited use as the doctrine of privity of contract means that the ability to bring
an action is restricted.
Part V Division 2A of the TPA and more accurately, S 74B of the TPA gives consumers or
persons acquiring title through or under a consumer can bring an action against a manufacturer in
respect of goods unsuitable for the purpose. S 74C allows for an action in respect of false
description of goods, S 74D for goods of unmerchantable quality, S74E for goods not
corresponding with a sample, and S 74K prohibits the exclusion or modification of this division.
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Under S 74 a (3) and (4) manufacturer is defined broadly, and includes a corporation which:
allows its name or brand on goods, holds itself out as a manufacturer and is an importer, and the
manufacturer has no Australian place of business.
A consumer is defined as a person acquires goods where: the price does not exceed the
prescribed amount. (Was $40 000) or, where the price was greater, but the goods were of a kind
ordinarily acquired for personal, domestic or household use.
Due to constitutional limitations, the TPA only applies to corporations. However, the FTA
applies where the manufacturer isn’t a corporation
Part VA of the TPA, enacted in 1992 imposes liability upon manufacturers and importers of
defective goods and applies to goods: if their safety is not such as persons generally are entitled
to expect.” (S 75A)
A corporation supplying such goods is liable for damages to a person, where the person is
injured or killed, (S 75AD). The remedy for other persons who suffer consequential losses is
found under S 75 AE. The remedy for damage to personal, domestic or household goods is found
under S 75 AF. Remedy where land or buildings are damaged is found under s 75 AG. S75AK
provides the defences, S 75 deals with contributory negligence, and s 75AQ stipulates a three
year time limit.
Under the TPA, a plaintiff doesn’t have to prove the existence of either a Duty of Care or
negligence. So, where possible, a plaintiff would be best advised to plead two causes of action,
one in tort, and one under the TPA.
However, it is important to keep in mind the effect of walking on cross-vesting legislation.
Phillip Morris Inc v Adam Brown Male Fashion Pty Ltd (1981) 148
CLR 457 accrued jurisdiction means that a court, any court, apart from those which have their
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jurisdiction specifically specified is allowed to hear and determine other matters to properly hear
the matter before them.
Abnormal Plaintiffs
Levi v Colgate-Palmolive (1941) 41 SR (NSW) 48 Mrs. Levi sued Colgate as
she contracted a very severe dermatological condition due to using free samples provided by the
defendant. The HC held that as her reaction was very, very rare, she was so unusual that she was
an unforeseeable plaintiff. As the bath salts were harmless to everyone else, she was
unforeseeable, and owed no duty of care. She didn’t succeed on the basis of the egg-shell skull
cases, as there the Ps were injured just like everybody else, just to a much greater degree. It was
held that “the bath salts supplied to P were innocuous to normal persons…the skin irritation
which she suffered…was attributable exclusively to hypersensitiveness.”
Haley v London Electricity Board [1965] AC 778, the P, a blind man, was
injured, when he fell into a ditch dug by the LEB, as they had not provided a barrier which was
sufficiently high for him to detect it with his cane. It was held that the P was not unforeseeable,
as it was foreseeable that a blind person would walk along the pavement, and could be injured if
proper safety measures were not undertaken. Here it was held that D “ought to anticipate the
presence of such persons within the scope and hazard of their operations.”
The Unborn Child
Watt v Rama [1972] VR 353, the P was a woman who suffered severe brain damage
due to an accident which her mother was involved in due to the defendant’s negligence. The D
argued that the P couldn’t recover, as an unborn child has no legal rights. However, the Court
held that the rights of the unborn child are potential rights, which crystallize when it is born.
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Lynch v Lynch (1991) 25 NSWLR 491. A child sued a mother for negligence in
causing injuries when she was in her womb due to a motor vehicle accident. The child was
successful, as it was found that it was owed a duty of care. However, the Court restricted the
application of such a duty strictly to the circumstances of the case, as there is a very low
threshold which needs to be crossed to establish a duty of care in motor vehicle accidents.
Mackay v Essex Health Authority [1982] QB 1166, the plaintiffs sued a
doctor and a pathological lab on the basis that they were negligent in failing to properly conduct
tests to determine whether the mother had rubella. The mother wasn’t treated, or warned of the
dangers of continuing with the pregnancy. The child was born with severe disabilities. The
plaintiffs were mother & child. The mother argued that she couldn’t terminate the pregnancy as
she didn’t know, caused by the defendants’ negligence. The child’s claim was that their
negligence caused her to be born. An interlocutory application by the defendants was to strike
out both claims. However, it was held that the mother’s claim would be allowed, but the child’s
claim would be struck out. The Court of Appeal agreed, holding that the child did not have a
cause of action. The child’s claim was one of wrongful life, and the mother’s one of wrongful
birth. It has been held that whilst a cause of action exists for wrongful birth, no such action exists
for wrongful life.
Dangerous Premises & Occupier’s Liability
Introduction
The foundation of liability for this is occupational control. It is control associated with and
arising from the presence in and use of or activity in the premises. Thus, a plaintiff would look to
the tenant, and not the landlord for relief if injured on leased premises. Whilst possession is a
good test for control, it doesn’t have to be exclusive to make the defendant liable. Thus, a
licensee or indeed, anyone with a right to invite people over someone else’s land could be an
appropriate defendant in a suit. (Wheat v Lacon [1966] AC 552, Kevan v
Commissioner for Railways [1972] 2 NSWLR 710) PREPARED BY Mr. OKIYA JIMMY JANSKY
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Premises include land and fixtures; however, this has been widely read. London Graving
Dock v Horton [1951] AC 737, held that this includes moveable structures, e.g.
scaffolding
Swinton v China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553
is an example where ships and gangways were held to be premises.
The Old Common Law Approach
The pre-Zaluzna position involved a special duty of care dependent upon the class of visitor to
the premises. The classes were:
A. Invitees
B. Licensees
C. Persons entering under contract (invitee)
D. Persons entering in exercise of legal power (invitee)
E. Persons entering as of public right (licensee)
F. Trespassers
As the Courts were dissatisfied with this approach, as it became increasingly complex and
formalistic, thus, the Courts encouraged circumvention of the differing duties by allowing
“concurrent resort to Atkinian duty of care” where there was any deviation from “mere
occupancy.”
The Concurrent duties approach held that an ordinary Duty of Care overrides a “special duty.”
(Hackshaw v Shaw (1984) 155 CLR 614, Papatonakis v Australian
Telecommunications Commission (1985) 156 CLR 7)
Voli v Inglewood Shire Council (1963) 110 CLR 74, special duty has to be
proven where the breach comprised something in the “static” condition of the premises.
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Papatonakis v Australian Telecommunications Commission (1985)
156 CLR 7 held that a general duty of care needs to be established if the breach arose out of
the activities, or positive actions of the occupier.
The law allowed for recovery in different circumstances depending upon the class of the
plaintiff. These were: where there were dangers which the defendant knew or should have known
of in relation to invitees. Where the defendant knew of dangers to licensees, where acts were
done deliberately to cause harm to trespassers.
The Current Position in Australia
The classical formulation has now been virtually rejected. The modern formulation is that a
general duty of care is owed to a person entering land, regardless of the distinction between
invitee, licensee and trespasser where there are circumstances where a general duty will lie.
Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, the plaintiff
went shopping at a Safeway store in an affluent Melbourne suburb on a wet Saturday morning.
She slipped and was injured in the foyer, and sued in negligence. It was held by Mason, Wilson,
Deane and Dawson JJ that “all that is necessary is to determine whether in all the circumstances,
including the fact of the D’s occupation of premises, and the manner of the P’s entry upon them,
the D owed a duty of care under the ordinary principles of negligence.” Thus, they spelt an end
to the “so-called special duties resting on an occupier of land with respect to persons entering as
[invitees], licensees or trespassers.” It was held that the manner of entry is not a decisive factor,
and that there are no hard & fast rules regarding it. The question of the manner of entry is more
applicable in the question of the standard of care.
Papatonakis v Australian Telecommunications Commission (1985) 57
ALR 1 .The question of whether an occupier’s duty extends to include a duty in relation to
independent contractors was left open. That is, there a duty to “see that reasonable care is taken.”
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Modbury Triangle Shopping Centre Pty Ltd v Anzil (23.9.2000) HCA,
this was a question which turned upon breach. The P worked in a video shop in the shopping
center. There was a large car park in front of the Shopping Centre, which had previously been lit
up until late at night. However, Modbury took the view of turning off the car park lights when
most of the shops closed. So, the car park was dark when the video shop closed. The P was
mugged in the car park as a result. The Court held that the D hadn’t been negligent, as the
calculus of negligence had fallen their way.
Liability of Statutory Authorities
Local councils are statutory authorities. Under their enabling acts, they have the power, and not a
duty to act. Thus, the Courts held that where a statute has given them a POWER to act, why
should the common law impose a duty to act?
Questions arise as to the distinction between misfeasance and non feasance. Will a statutory
authority be held liable for misfeasance? Further, what if the actions are ultra vires?
Anns v Merton London Borough Council (1978) AC 728, this case was not
followed in either the HofL or in Australian courts, but, it is important, due to the concepts it
enunciated. The P bought a house within the D’s council area. It had been built without their
knowledge on faulty foundations. The P sued the council as it has the power to approve building
plans and the power to inspect the construction. The Court held that the council was liable as it
was reasonably foreseeable that if the council hadn’t inspected the construction, someone would
suffer. The Court held the following in relation to the liability of statutory authorities:
Intra vires & a policy decision - the courts will not interfere.
Ultra vires & a policy decision - the courts will assess whether (in) action was negligent
Not a policy decision, but an operational one - the courts will assess whether (in) action was
negligent.
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Sutherland Shire Council v Heyman (1985) 157 CLR 424, the fact
situation was almost identical to those in Anns. The HC in this case declined to follow Anns on
the question of where a DoC arises - that is they declined to use the distinction between policy
and operational decisions - and instead used reliance as the test. The majority Mason CJ,
Brennan and Deane (in separate judgements) held that:
In general, there is no duty to exercise statutory powers.
The duty arises where the authority, by its conduct places itself in a position where other people
rely on it to take care for their safety.
The Duty arises where the D ought to foresee that:
(i) The P reasonably relies on the D to perform the function
(ii) The P will suffer damage if the D fails.
The Court held that the D was not liable, as the P hadn’t relied on the Council’s inspections.
They could have, but they didn’t. Further, the Council did nothing to induce the P to rely on it.
The HC found unanimously for the D. Two minority judges found that there was a duty, but no
breach. Mason CJ held that policy or operational distinctions are not relevant in determining
whether a duty exists. It is relevant on the question of breach. He further introduced the concept
of general reliance.
Parramatta City Council v Lutz (1988) 12 NSWLR 293 Lutz was the owner
of a property next to a derelict house. The Council had the power to demolish any derelict
buildings, even where the owner doesn’t. Lutz had repeatedly asked for the building demolished.
The Council had failed to do so, and a fire started in that property, spreading to her property,
destroying her house. It was held that as Lutz had specifically relied on the council to demolish
the building, and as the council had induced her to do so, there was a DoC. Both Kirby P and
McHugh JA held that the council was liable to P as the P had “generally relied” on it to exercise
its statutory powers. McHugh JA went on to state that “I think…that this Court should adopt as a
general rule of the common law, the concept of general reliance.”
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Pyrenees Shire Council v Day (1998) ALJR 1, there were three Ps - the owner
of a fish and chip shop, the tenant, and the owner of the property next door. The Council
inspected a flat behind the shop, and found the fireplace to be very dangerous. The inspector
warned the then tenant not to light a fire. The inspector issued a notice to the owner regarding
fixing the fireplace. The owner sells the flat, and a new owner, and a new tenant arrives. The
tenant lights a fire, and the place burns down. The plaintiff’s sued the council, as the inspector
had come, and knew of the danger, and it didn’t do anything. The HC held that the owner
couldn’t succeed as they hadn’t specifically relied on the council. The tenants and the adjoining
owner were successful, as they had relied on the council. The majority (Brennan CJ, Gummow
and Kriby JJ): rejected the concept of general reliance (too vague, uncertain, and relies on a
“general expectations of community.”), only McHugh, Toohey JJ approved the concept of
general reliance; Brennan CJ held that there was no specific reliance by the P (owner) here. It
was held that a duty arises where the “autority is empowered to control circumstances give rise
to a risk and where a decision not to exercise power to avoid a risk would be irrational in that it
would be against the purpose of the statute.” Gummow J held that the council had esclusive
control and knowledge of this situation, and should so be reliable; the control mechanisms are
misfeasance or nonfeasance here the council by its actions, placed itself in such a position which
imported a Duty of Care. The policy or operational distinction is not a clear cut basis for
determining liability, but there will be no liability for the quasi-legislative of statutory bodies
(e.g. zoning prescriptions) or core areas of policy making. Kirby J held that proximity is not a
universal identifier of a Duty of Care. BUT, more than reasonable foreseeability is required. You
look at a spectrum of proximity factors, which involves determining whether:
A. The gravity of the risk is high
B. The claimants were not strangers to the Council, but ratepayers.
C. The council had statutory power expressly to prevent fires
D. The council had exclusive knowledge of dangers
E. These are sufficient to impose a Duty of Care. He further held that the following should be
taken into account:
F. Policy considerations
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G. The test in Caparo v Dickman for a Duty of Care.
Crimmins v Stevedoring Industry Finance Committee (1999) 167
ALR1. Stevedoring is a statutory body. A waterside worker died as a result of contracting
mesothelioma as a result of inhaling asbestos fibres. The deceased’s wife sued the statutory body
for negligence, arguing that the Authority failed to warn of the dangers of asbestos, failed to
instruct as to those dangers, failed to provide respiratory equipment, failed to encourage
employers to introduce safety measures for the handling of asbestos, failed to ensure that
employees were aware of the risks of exposure to asbestos and failed to properly inspect the
conditions under which stevedoring operations were carried out. The Stevedoring Industry
Finance Committee assumed “all the liabilities and obligations of the Authority that existed” as
at 26 February 1978. The Authority allocated the waterside workers for work in accordance with
the needs of the various employers the workers having no say in the allocation.
McHugh J and Gleeson CJ agreeing: analysed the precedents in similar cases to reveal their
“bases in principle and policy.” Held that there may be special factors which negative a duty
for a public authority where a duty would be owed by a private individual. The common law
courts should take caution in imposing affirmative duties of care on statutory authorities. In
novel cases, the duty should be determined by the following questions:
Was it reasonably foreseeable that the Defendant’s act or omission including a failure to exercise
of statutory power would cause injury?
Did the defendant have the power to protect a specific class including the P (rather than the
public at large).
Was the P vulnerable?
Did the D know of the risk to the specific class including the P if D didn’t exercise their power?
Would the duty impose liability for the “core policy making” or “quasi-legislative” functions of
the body?
Are there any policy reasons to deny duty (Example the Duty of Care is inconsistent with a
statutory scheme).
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Gaudron J: an obligation imposed on an authority by the Act is consistent with the Duty of
Care., The P is vulnerable; D knew of the asbestos; the authority had power to control or
minimize risk.
Gummow J agreeing with Hayne J: inappropriate to ask whether a Duty of Care is inconsistent
with a statute; the starting point must be the statute; in the present case, the relevant statute was a
complete statement for the regulation of the subject matter; the authority lacked any power over
safety.
Kirby J: Applied the Caparo “3 stage enquiry” and imposed a Duty of Care.
Hayne J: The powers of authority were “quasi-legislative.”; the authority was not in control of
the situation. Thus, there was no Duty of Care.
Callinan J: Right to exercise control, and actual control as an indicator of a Duty of Care.
Ryan v Great Lakes Council 9 August 2000 Federal Court Australia
Lindgren J held on the DoC issue that; there were no clear principles laid down by the HC.; This
was a novel case as a duty was claimed towards the “consuming public.” This is generally not
an identifiable class, and there isn’t a duty to exercise powers in one particular place (cf
Pyrenees, Lutz), but in respect of many places.; The predominant methodology in determining
whether a DoC exists is one of cautious, incremental development of principle, based on analogy
with previous cases.; One has to examine precedent cases to reveal their bases in principle and
policy.; In a novel case involving a statutory authority, the issue of Duty of Care should be
determined by answering the following:
1. Was it reasonable foreseeable that act or omission would cause injury.
2. Did D have the power to protect a specific class including P (rather than public at large).
3. was the P vulnerable.
4. Did D know (or ought defendant to have known) of risk?
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5. Would duty impose liability for “core policy making” or quasi legislative” functions, if so then
NO duty
6. Are there policy reasons to deny duty?
Commence with examination of relevant legislation to discern nature of powers and expectations
of parliament.
Referred to NZ, Canadian, and English cases, esp. Stovin v Wise [1996] AC 923
Which held that the general principle is that there is no liability for a failure to exercise a
statutory power. IT made use of the public law test (like Brennan CJ in Pyrenees). The
question is whether it would have been “irrational for the Council to decide not to exercise its
power?”
He held that the current case was similar to Pyrenees, Lutz & Crimmins in the following areas:
1. Powers have objects which include “public health”
2. P was vulnerable.
3. Council knew there were problems.
The case is unlike Pyrenees, Lutz & Crimmins because:
4. Duty is claimed to be towards “consuming public generally” not identified individuals
5. The problem was not at a known problem site, but in respect of many unknown sites
6. The council was not in a position to prevent contamination, only minimize it.
7. The issue of a breach raises complex issues as to priority of allocation of council resources.
8. Causation problems…which source of contamination caused the P’s illness?
9. Cost of identifying and eliminating all sources of contamination is too onerous.
It was foreseeable that injury would occur if the Council didn’t exercise its powers, but
foreseeability alone is not sufficient for a Duty of Care.
Proximity is not a necessary element of a duty in all cases (Hill v Van Erp) however, it is a
useful concept. In Pyrenees, Lutz and Crimmins the relationship between the P and the public
authority was much closer than in this case.
There are several considerations, on policy grounds which render it unfair, unjust and
unreasonable to impose a duty:
1 Indeterminate class of Ps
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2 Duty to “minimize” contamination too vague and uncertain a concept.
3 Indeterminate nature of the burden on the council because of the non-specificity of the
sources of contamination.
4 Question of cost and ordering priorities.
Kiefel J’s reasoning on the issue of a Duty of Care was similar.
Lee J dissenting would have imposed a duty on the council on the facts.
Highway Authorities
The old rule was that statutory authorities were not liable for non-feasance in their role as
highway authorities. (Gorringe v Transport Commission (1950) 80 CLR 357
and Buckle v Bayswater Road Bd)
Hughes v Hunters Hill Ccl NSW Ct of Appeal held that the Gorringe rule
survived the decision in Sutherland v Heyman
Ghantous v Hawkesbury Shire Council HCA June 2001, the plaintiff
tripped and fell due to a depression in the footpath. The question was whether the defendant
owed Mrs Ghantous a Duty of Care.
Brodie Shire Council v Singleton HCA June 2001, the plaintiff was driving a
truck loaded with concrete across an old timber bridge, when it collapsed, and the plaintiff was
injured. He sued the council.
In both the above cases, the HC denied immunity for nonfeasance by highway authorities. The
reasoning for this was delivered in a joint judgment by Gaudron, McHugh and Gummow JJ, with
Kirby J agreeing:
In highway cases, the law of negligence has subsumed nuisance
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In so far as they exclude the operation of the tort of negligence, Buckle, and Gorringe should
no longer be followed.
The relevant considerations for this are:
1. No such rule in other jurisdictions: Canada, USA, NZ, in UK matter covered by statute so
common law rule no longer applies in country of origin.
2. Decisions often turn upon capricious distinctions between misfeasance and nonfeasance,
and between what is the highway, and what other infrastructure (Examples drains, sewers) is.
3. The misfeasance or nonfeasance distinction is illusory especially on the issue of repair or
maintenance work. That is, an authority can be liable for an attempt to reduce danger, but not if
they left it is).
4. Policy questions: the purposes served by the immunity now are not those served in England
in Ages past.
5. The argument that without immunity, authorities will be subject to new indeterminate
financial hazards and scrutiny of financial and budgetary matters is not tenable. They have
insurance, and other corporations are “obliged to order their affairs to meet the rule of law.”
6. The argument that precedent demands the maintenance of immunity is not accepted: “stare
decisis…should not always trump the need for desirable change in the law.” (per McHugh J in
Perre v Apand)
7. Nuisance or negligence
8. The immunity and statute: RTA act refers to “immunities of a council in relation to a public
road” without defining the immunity. This does not have the effect of entrenching the immunity,
but rather attracts that immunity which may exist from time to time. What will replace the rule in
Buckle and Gorringe? The abolition of immunity doesn’t mean strict liability. The content and
breach of the DoC is to be determined according to the ordinary law of negligence…Wyong v
Shirt
Gleeson CJ, Hayne and Callinan JJ dissented.
In Brodie, the appeal was allowed, and the case remitted to the Court of Appeal for decision on
the issue of breach. Ghantous’ appeal was dismissed, as there was no breach of a duty by the
council.
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Liability for Defective Structures
This is the liability of non-occupiers to visitors or occupiers of negligently constructed buildings.
Builders, developers, engineers, architects and local government all owe a duty of care to injured
persons. But, what of the situation where there is no physical injury, only purely economic loss
(that, is the cost of repair of defective structures).
Economic Loss
Dutton v Bognor Regis UBC [1972] 1 QB 373 It was held that the council owed
a Duty of Care to the P, and that it was liable for a failure to properly inspect faulty foundation.
Lord Denning talked of a “material loss” - the cost of repair to avert threatened injury.
Anns v Merton London Borough Council [1978] AC 728 It was held that the
council owed a Duty of Care in respect of negligently failing to properly inspect foundations.
The damage was referred to as “material.” This case relied upon Dutton. However, since this
case, the HofL has declined to follow Anns and overruled Dutton.
Murphy v Brentwood District Council [1991] AC 398, it was held that the council was not
liable in relation to faulty foundations, as there was no Duty of Care, as the loss was purely
economic.
Sutherland Shire Council v Heyman (1985) 157 CLR 424, the HC held
that the Duty of Care of a statutorily authority is dependent on the reasonable reliance of the P on
D. The P’s loss was economic.
Armidale Shire Council v Finlayson, where the P was successful against the council
because of reliance, and notwithstanding the fact that the loss was purely economic
Builders
Builders are clearly liable where an injury is caused by an undiscovered defect on ordinary
negligence principles. (Murphy v Brentwood [1991] AC 398), but of the situation
where the loss is purely economic?
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Bryan v Maloney (1995) Aust Torts Reps 81-320 The P was the third owner of
a house, seven years after construction. There was extensive cracking due to the builder’s
negligence in laying faulty footings. The majority (Mason CJ, Deane, and Dawson JJ) held that:
P’s loss was purely economic.
The Duty of Care was dependent upon proximity and various factors of justice and policy which
were relevant. These were:
(a) The negligent failure by D to carry out a fundamental requirement of the original contract to
build could give rise to a Duty of Care in tort to a third party.
(b) (Policy) The question of indeterminacy is irrelevant as only the P is affected by D’s
negligence.
(c) (Policy) The purchase of a home is often the most important commercial transaction a P
would ever make, and the D is much better able to avoid, evaluate, and safeguard against a latent
defect.
(d) (Policy) it avoids the anomalous situation where the D is liable if personal injury flowed from
the negligent conduct, but not for economic loss incurred to prevent the same.
(e) There was an assumption of responsibility by D, and reliance by P.
Architects
Voli v Inglewood Shire Council (1963) 100 CLR 74, the P was injured when a
stage collapsed due to the insufficiency of the joists. The architect was held to be liable for their
negligent failure to specify proper joists. The professional is bound “to exercise due skill, care
and diligence…not an extraordinary degree of skill…but…the competence and skill usual among
architects.”
Councils
Sutherland Shire Council v Heyman (1985) 157 CLR 424, the existence of
a DoC is dependant upon reliance, and the nature of damage is relevant (purely economic loss).
Note, Brennan J dissenting.
Nervous Shock
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The Nature of Nervous Shock
Jaensch v Coffey (1984) 155 CLR 549 per Brennan J it is the “sudden sensory
perception - that is by seeing, hearing or touching - of a person, thing or event, which is so
distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and
causes a recognizable psychiatric illness.”
Mt Isa Mines v Pusey (1970) 125 CLR 383 at 394 per Windeyer J, “sorrow
does not sound in damages…it is…today a known medical fact that severe emotional distress can
be the starting point of a lasting disorder of the mind.” This is because, damages are the gist of
an action in negligence, and thus, something more lasting than mere sorrow is required to allow
recovery.
Swan v Williams (1987) 9 NSWLR 172, the P was diagnosed of suffering an
abnormal grief reaction. Samuels J held that an abnormal grief reaction was not a psychiatric
illness, and so there was no claim in nervous shock. However, Priestlye and McHugh JJ held that
it was sufficient to ground a claim.
Andrewatha v Andrewatha (1987) 44 SASR 1, the P was a man who cared for
his wife who had been severely disabled in a car accident for a prolonged period of time. He
suffered a depression as a result, and sued in negligence for nervous shock. However, he was
unsuccessful, as the Court held that the depressive state was a result of the prolonged care, rather
than the shock of the accident. That is, the Court held that the illness must result from a sudden
trauma or shock. Thus, his depressive state was resultant from the prolonged stress of caring for
his disabled wife, was not nervous shock.
Recovery for Nervous Shock
Victorian Railways v Coultas (1888) 13 App Case 222 (PC) The P was a
passenger in a carriage driven by her husband. They crossed a level crossing as a train
approached. The P suffered a terrible shock and suffered a miscarriage. The Court accepted that
the reason for this was because an employee had forgotten to draw the boom gates. The Privy
Council held that in the absence of physical injury, recovery for nervous shock was barred.
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This situation gradually changed, and in the 20th Century, nervous shock was actionable
regardless of physical injury.
Dulieu v White [1901] 2 KB 669 allowed for nervous shock for the fear of the
plaintiff’s own safety.
Hambrook v Stokes [1925] 1 KB 141 it was held that recovery for nervous shock
for the fear for the safety of a close relative.
Chester v Waverley (1939) 62 CLR 1, the P was a mother of a small child who
had gone missing. Employees had dug a deep trench, which had filled with water. The child had
fallen in, and had drowned. She was at the scene when the trench was dredged, and she saw the
body. She brought an action in negligence for the nervous shock she suffered. However, the HC
held that it was unforeseeable that the mother would suffer a psychiatric illness in such
circumstances.
Dooley v Cammel Laird [1951] 1 Lloyds Rep 271, a load fell from a crane the
P was operating, due to the negligence of other persons. He was aware that many of his
workmates were working directly under the crane. He was certain that he had killed many of his
workmates, and suffered a severe psychiatric illness. No-one actually died in the accident.
However, he was successful in suing his employer for nervous shock.
Mt Isa Mines v Pusey (1970) 125 CLR 383 Is another example of nervous shock
resulting from the fear of safety of others.
Chadwick v British Transport Commission (1967) 2 All ER 945, the P
lived near a railway line, and there was a dreadful train crash, in which many were killed. The P
heard the crash, and ran from his home to provide aid. He crawled into the wreckage to try and
rescue people. Whilst he didn’t affect a rescue, he talked to people and kept the calm whilst they
waited to be cut free. He wasn’t himself injured, but suffered nervous shock. He was successful
in his action against the Transport Commission.
Proximity Issues and Primary/Secondary Victims
Jaensch v Coffey (1984) 155 CLR 549, the P hadn’t been at the scene of the
accident, and she first knew of the accident when she was informed by police. She rushed to the
hospital, and saw her husband in the ICU, and had been told by hospital staff to prepare for the
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worst. She thought that he would die, and suffered various psychiatric difficulties as a result. She
sued the negligent driver to recover for nervous shock. The HC held that the accident and its
aftermath were sufficient. It was held that the accident and its aftermath extended to the hospital
“up to and including immediate post-accident treatment.” The Court looked at these issues under
the banner of proximity. The Courts held that she could recover as she was reasonably
foreseeable, and because she was involved in the aftermath.
Alcock v Chief Constable [1992] 1 AC 310 This action rose out of the
Hillsborough disaster where there was a stampede after a soccer semi-final. The police had
negligently allowed 1 of the stands and the area in front of it to become grossly overcrowded.
The pen collapsed and many were crushed to death. There were 95 killed, and 400 injured as a
result. People elsewhere in the ground, and those at home saw it, as the game had been televised
live. This was a test case brought for 16 Ps, all of whom had seen what had happened, and knew
people in the stadium. Some Ps was in the stadium, knowing they had friends and relatives there.
Others had seen it on TV, and knew of people in the stadium. None of the Ps succeeded. Whilst
this was decided under the banner of proximity, there are relevant principles still to be extracted.
Lord Oliver held that primary victims “involved either mediately or immediately as a
participant.” A secondary victim was “no more than the passive and unwilling witness of injury
caused to others.” He emphasized that this distinction was merely a label, and not a rule of law.
It was held that all the Ps in this case were secondary victims. In order for a secondary victim to
succeed in a nervous shock, it was held that the following criteria had to be fulfilled:
1. The P must have close ties of love and affection to the victim. This will be presumed in some
situations (e.g. spouses, parent/child) and will have to be proven by evidence in other cases.
2. The P must have been present at the accident, or its aftermath, and witnessed it through the
p’s own unaided senses.
3. The psychiatric injury must have been caused by direct perception of the accident or its
immediate aftermath.
The HofL held that the duty did not extend to those who saw the accident on TV or to the
morgue afterwards. It was held that there was “no pressing policy need” to extend recovery as
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there is “no logical stopping point…where the elements of immediacy, closeness of time and
space and direct visual or aural perception are absent.”
White & Others v the Chief Constable of South Yorkshire H of Lords
3.12.1998, the police brought an action for nervous shock from the events of Hillsborough.
The H of L held that the police were not rescuers, but gave assistance to the injured. The police
were never in physical danger themselves. Further, it was held that they weren’t rescuers, as they
were doing their jobs. Thus, they were unsuccessful on this ground. They further argued that the
police were employees, and therefore they were ‘primary victims’ because of the duty owed to
them by their employer, but the ordinary principles for the recovery for nervous shock still
applies. That is, Alcock control mechanisms, and thus, they did not succeed. Further, two policy
grounds were enunciated to deny liability and these were firstly, a question of whether the police
should recover where the victims of the deceased did not and secondly the risk of a wide scope
of potential liability for psychiatric harm.
Coates & Anor v GIO of NSW (1995) 36 NSWLR 1 Kirby P held that recovery
for nervous shock is not precluded merely by the fact that the deceased’s children were not in the
sight or hearing of the accident or its aftermath. He held that the law should recognise that “it
is…the direct emotional involvement of a P in an accident” that is relevant to nervous shock.
The factors relevant to a Duty of Care in Australia for nervous shock today are:
1. Reasonable foreseeability of nervous shock injury
2. Recognised psychological illness
3. Sudden shocks
4. Involvement in an accident or aftermath.
5. Close ties of love and affection to victim(s).
Morgan v Tame [2000] NSWCA 121 12 May 2000 The Respondent was
involved in a car accident. In the course of investigating the accident, a "P4 Report" was
completed by the Police. The P4 Report had been incorrectly filled out and showed the
Respondent as having a blood-alcohol reading of 0.14. That was the reading of the other driver
involved in the accident. The correct reading for the Respondent was nil. The Respondent was
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informed of the error by her solicitor. Subsequently she was told by the Police that the entry was
a mistake and that it had been corrected. Notwithstanding that the Respondent was informed that
all parties knew that the P4 Report had been filled out incorrectly, she developed a psychotic
depressive illness. It was held that it was not reasonably foreseeable that a person would develop
a psychiatric illness due to an error in filling out an accident form.
Annets, the P was not successful, as there was no sudden shock, and had not been involved in
the accident or the aftermath.
However, the above two cases have been granted special leave to appeal to the HC, so this is not
settled law.
Quayle v State of New South Wales [1995] Aust Torts Reports 81-
367, the Ps was the mother and two brothers of an aboriginal man who hung himself in
prison. He had been suffering from severe depression, and alcohol withdrawal symptoms, and
thus, the brothers took him to Broken Hill Hospital. The hospital handed him over to the police,
who unlawfully detained him, at which time he hung himself. A police officer ran into a brother,
and told him that his brother had hung himself. The police asked the other brother to identify the
body on a public street, as they were taking him to the hospital morgue. All plaintiffs were
successful, as a single judge of the District Court held that third party communication should be
compensable.
Section 4 of The Law Reform (Miscellaneous Provisions) Act 1944 provides liability…(for)
injury caused…by an act neglect or default by which a…person is killed injured or put in peril
shall extend to…nervous shock sustained by…
(a) A parent or the husband or wife of the person killed etc….
(b) Any other member of the family where such a person was killed (etc), “within the sight or
hearing of such member of the family.”
Note Kirby P’s judgment in Coates v GIO. This legislation does not deny a P the right to
rely on the c. law, but the question has been left open by the HC in Jaensch v Coffey.
Negligent Misstatement
Derry v Peak It was held that P could only recover where the misstatement was fraudulent.PREPARED BY Mr. OKIYA JIMMY JANSKY
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Candler v Crane Christmas Lord Denning dissenting held that the D, an accountant
owed a duty to a third party who he or his employer may show the accounts to. This duty
extended to persons who used the accounts for any transaction for which the accountant knew
they were prepared.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 4652, the
majority of the HofL preferred Lord Denning’s approach in Candler v Crane. The plaintiffs were
advertising agents who placed ads for their clients Easy Power. They would provide the money
required, and recover the expenses from the client later. They requested a credit report on Easy
Power from the bank, which they provided. However, there was a disclaimer, which excluded
liability. In obiter, the HofL held that if:
(1) “In a sphere in which a person is placed…
(2) That others could reasonably rely upon his judgement or skill…
(3) A person takes it upon himself to give information or advice…or allows his information or
advice to be passed on to another person
(4) Who…he knows or should know will place reliance upon it,
(5) Then a duty of care arises.”
Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556
Evatt wished to invest in a subsidiary of MLC’s and asked MLC’s advice regarding whether it
was a viable investment. MLC stated that it was, and Evatt invested in the company. However, it
went backrupt, and Evatt sued MLC. The question was whether MLC owed a duty of care. The
HC found that there was DoC, and applied Hedley Byrne v Heller. Barwick CJ held that
the D is liable, notwithstanding a lack of a special skill. A willingness to proffer the information
was sufficient. However, the PC held that there was no DoC where there is no specialized skill.
Shaddock v Parramatta City Council (1981) 36 ALR 385, the P’s solicitor
called Parramatta Council to determine whether there were any road widening proposals. They
also sent a written request for the information. The Council stated that no such plans existed.
This was a misstatement, as the clerk filling out the form had neglected to check whether any
proposals were proposed. There were road widening proposals for both roads on which the
property Shaddock bought, and thus, the zoning was no longer commercial (the property was too
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small). Thus, they sued the council. Each of the five justices of the HC held that they preferred
Barwick CJ’s view in MLC v Evatt that no specialized skill is required in itself, but rather, it
is a factor in determining whether there was reasonable reliance. Gibbs CJ held that the principle
of reasonable reliance “would…accord with general principle that a person should be under NO
duty to take reasonable care that advice or information he gives is correct unless:
(1) He knew or ought to know that the other relies on him to take such reasonable care
(2) And may act in reliance on the advice or information…
(3) And unless it would be reasonable for that other person so to rely and act.
San Sebastian Pty Ltd v Minister Administering the Environmental
Planning and Assessment Act (1986) 162 CLR 340 The P was a property
developer who saw plans published by Sydney City Council and the EPA about the
redevelopment of Wooloomoloo. It wasn’t a final plan, and nor did it state that these plans would
be put into effect. The developer bought property in Wooloomoloo on the basis of these plans.
However, they were dropped. San Sebastian sued the council and the EPA arguing that they had
been negligent in preparing and publishing the plans. The Court looked at the scope of the Duty
of Care, and to whom it was owed. It was held that the D was not liable on the basis that:
(1) It is necessary that the D intends that P (or a class of persons of whom P is one) should act
on the statement
(2) And D must make the statement with the intention of inducing P in reliance on the
statement to act or refrain from acting in a particular way
(3) In circumstances where defendant would realize that economic loss would be suffered if the
statement were incorrect.
In the case of Caparo Industries Plc v Dickman [1990] 2 AC 605, the HofL
took a narrow view of a Duty of Care. The auditors of a company were negligent in preparing
accounts which were relied upon by a potential investor who bought lots of shares on the basis of
those accounts. The company folded, and the investor sued the auditor. The HofL held that no
duty existed, where the defendant has no specific knowledge of the transaction in respect of
which the plaintiff relies on the information or advice. They further look at the purpose for which
the information is given.
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Similarly in the case of R Lowe Lippman Figdor &Frannck v AGC Advances
Ltd (1992) VR 671 It was held that a Duty of Care doesn’t exist merely because the D
knows that the information will be communicated to the P. The D must make the statement with
intent to induce the P to rely on and act upon it.
In the case of Esanda Finance Corporation Ltd v Peat Marwick
Hungerfords (1997) 71 ALJR 448 Peat was a very large firm of chartered
accountants, who were the auditors of a company. Esanda was a finance company which lent a
large sum of money to an organization by the name of Excel on the basis of the audited accounts
provided by Peat Marwick, who handed over a copy of the accounts to Esanda. Excel goes
bankrupt, and Esanda commenced proceedings in the SASC, and Esanda submitted a statement
of claim stating that Peat Marwick owed a duty of care, and it did not include that Peat had made
the statement with the intent of inducing Esanda to rely on it. The Ds sought to have the
statement of claim struck out as a proper cause of action had not been disclosed. The appeal to
the HC was regarding the strke-out application. The question was whether Esanda had disclosed
a proper cause of action - whether they had pleaded all the elements of the action. The HC
provided separate judgments.
Brennan CJ held that the P must prove that:
A. D knew or ought reasonably to have known that the information or advice would be
communicated to the P
B. And that information or advice would be communicated for a purpose which would be “very
likely to lead P to enter into a transaction”
C. And it would be “very likely that P would enter into such a transaction in reliance on that
information” and thereby risk economic loss.
Thus, Brennan CJ held that there was no duty.
Dawson J held that there is a requirement for proximity and reasonable reliance. Where there is
no request from the P, the D must intend to induce the P to act. He adopts the “purpose” test in
Caparo. (No duty)
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Gummow J held that the intention must extend to knowledge that something will happen as a
virtual certainty. But, gives no general rule, as it would be inappropriate on a strike out
application (No duty)
McHugh J held that intent to induce reliance of P is not a necessary element as there may be a
request for information, or an assumption of responsibility or other factors (not specified) which
give rise to a Duty of Care. Policy considerations such as increased cost of auditing, decrease in
competition, reduction in the standard of services, cost of insurance, fair and efficient loss
absorption, and that the fault of the auditor is only a secondary cause of loss means that no duty
exists. Gaudron and Toohey JJ held that the “law has not yet developed to a point permitting
precise definition or description.”
In the case of Tepko v Water Board HCA 5 April 2001 Tepko owned a lot of land
in Western Sydney. The company wanted the land rezoned in order to subdivide it into
residential property. They required water and sewerage facilities to be connected. They borrowed
a very large amount of money in Swiss Francs in order to get this done. There was difficulty in
getting the land rezoned, and thus, in making payments. The bank requested an estimate for the
cost of the connection. The Water Board refused. The P lobbied local members of the NSW
Parliament, and persuaded a local member to approach the Minister for Natural Resources for the
information. The member gets a letter from the minister which gives an estimate of 2/1/2 million
dollars. The bank puts the company into liquidation and appoints a receiver, as it believes that
the company can never pay back the money. The letter is from the Minister to the MP. The figure
is wildly inaccurate, and the true estimate is less than a million. The P sues the Water Board
arguing that its negligence caused the bank to put the company into liquidation. The majority of
the HC (Gleeson CJ, Gummmow & Hayne JJ in a joint judgment, & Gaudron J) held that the
Water Board did not owe Tepko a DoC. The majority:
A. Referred to Barwick CJ in Evatt and San Sebastian and held that:
(1) The speaker must/ought to realize that the recepient intends to act on the information.
(2) It is reasonable in all circumstances for the recipient to accept and to rely on the utterance of
the speaker.
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B. Referring to case of Perre v Apand, significant matters for the existence of a Duty of
Care include:
(3) Foresight of the likelihood of harm
(4) Knowledge or means of knowledge of an ascertainable class of vulnerable persons.
The minority (Kirby and Callinan JJ in a joint judgment and McHugh J) imposed a DoC because:
D had a monopoly on the information.
The P trusted the D to make a proper estimate.
D knew that in due course P is likely to be in a close business relationship with the D.
Omissions
Generally, liability is incurred only for an action, not for failing to act. A pure omission is not
tortious. A pure or mere omission is where the failure to act is the only conduct causally linked
to the P’s loss. Where an omission takes place in the course of a larger activity, it is not a mere or
pure omission, and it is actionable.
In some circumstances, there will be a legally recognised pre-existing duty to take positive
action, (Example occupier of land). In the case of Hargrave v Goldman (1963) 110
CLR 40 the D was a farmer who had a huge property in WA. A very large tree was struck by
lightning and caught on fire. The farmer, when he became aware of it, took tankers of water out
to it, chops it down, and sprays the water over it. It smoulders for a couple of days, after which it
flared up again, destroying both his and his neighbour’s property. The neighbours sued the
farmer arguing that a Duty of Care existed. The HC agreed, stating that there is a duty “to
exercise reasonable care where there is a fire upon his land (although not started or continued by
him) of which he knows or ought to know, if by the exercise of reasonable care, it can be
rendered harmless or its danger to neighbours diminished. On appeal to the PC, the PC went
further than the HC and stated that “the development towards a measured duty of care by
occupiers to remove or reduce hazards to their neighbours…the standard ought to require of the
occupier what it is reasonable to expect of him in his individual circumstances.”
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In the case of Geyer v Downs (1977) 138 CLR 91 A student who goes to school
early is hit over the head with a softball bat by another student. The principal knew that students
arrived early, and omitted to provide supervision. The HC held that as the students are the pupils
of the school, by virtue of the relationship, the school had a duty to refrain them from hurting one
another.
Smith v Leurs (1945) 70 CLR 256, the defendants were the parents of a thirteen
year old boy that fired a stone at another child, using a slingshot, damaging his eyesight. The HC
held that the parents owed a DoC to control their son. However, it was held that they had not
breached their duty, as the parents had forbidden the boy from using it in the general direction of
other people.
Wormald v Robertson [1992] Aust Torts Reports 81-180 Demonstrated
that a publican who knew of the drunken state of a patron who assaults another patron, is liable.
The publican owes a Duty of Care to their patrons that they restrain the drunk from assaulting
them.
L v The Commonwealth (1976) 10 ALR 269 There is a duty upon prison
authorities to separate remand prisoners from convicted, violent prisoners, to ensure their safety.
Lounds v Woods (1996) Aust Torts Reps 81-376, the plaintiff was a young
epileptic man who was on holiday with his parents near Terrigal. He suffered an epileptic fit, and
the mother remembered that there was a doctor up the road. She sent the daughter to call on the
doctor, who refused to come, as he was too busy. The mother also called an ambulance, but the P
had suffered irreversible brain damage by the time it had arrived due to oxygen deprivation.
Evidence was adduced that had the doctor arrived at the time he was asked to, he could have
stopped it by administering a normally available drug. Kirby and Priestle JJ found that the doctor
owed a DoC due to his circumstantial proximity, and the societal and policy consideration, which
lay an expectation upon doctors that they come to people’s aid. However, there is no requirement
of a general duty to rescue.
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Rescuers
The Duty of Care owed to rescuers is independent of the duty owed to the person put in peril.
Haynes v Harwood (1934) All ER 103) - the position used to be that the duty owed
to rescuers was dependant upon that owed to the rescuee.
Videan v British Transport Commissioner [1963] 2 All ER 860 It was held
that whether the rescuee was a trespasser, or guilty of contributory negligence is irrelevant in
regard to the duty owed to the rescuer, which is independent.
Horsley v Maclaren (“The Ogopogo) [1971] 2 Lloyds Rep 410, a
passenger fell from a yacht due to his own fault, and the owner’s unsuccessful maneouvres
prompted another passenger to jump after him. The owner (if found negligent) would have been
responsible for the drowning of the second.
The duty owed to rescuers is based on their foreseeability. This is aptly demonstrated in
Chapman v Hearse (1961) 106 CLR 112.
Crossley v Rawlinson (1981) 3 All ER 675, the plaintiff was an Automobile
Association man who saw the D’s truck on fire on the other side of the road. The tarpaulin hadn’t
been properly affixed the tarpaulin, causing it to drag across the road surface, sparking off a fire.
The P tripped on a manhole, and injured himself. It was held that he wasn’t owed a Duty of Care,
as it wasn’t foreseeable that he would trip over and hurt himself.
Harrison v British Railways [1981] 3 All ER 679 The railway employee ran to
catch the train and was hanging on to the moving train. The guard leans out to pull him in and
they both fall out. The duty was still owed to the rescuer. The guard should have pulled the
emergency stop leaver so there was a 20% reduction of damages.
The argument of volenti has been refuted on the basis that the duty thrust upon the rescuer in an
emergency, whether legal or moral intercedes to exclude all real choice, regardless of the rescuer
being a volunteer or a professional.
Baker v Hopkins [1959] 3 All ER 225, the P was the executor of the estate of a
doctor, who went down a well to rescue workers who had been overcome by fumes. He too was
overcome by the fumes, and died. It was held that he was owed a Duty of Care by the employer,
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and the Court held that there was no contributory negligence, as the P’s actions must be judged
in the emergency that existed.
Pure Economic Loss
There is no longer blanket exclusion for recovery on the basis of purely economic loss in
Australia. This is still the case in England.
Weller & Co v Foot & Mouth Disease Research Institute [1966] 1 QB
569 The D was the F&M, whose negligence allowed F&M disease to escape. The cattle in the
area were affected. The farmers had to kill their cattle. The Plaintiffs were stock engineers and
stock yards, who made huge losses, when the stockyards were closed as a result of the outbreak.
They sued the institute. However, the Court refused to impose a duty of care to purely economic
loss. This was based purely on the following policy reasons:
(a) Indeterminate liability
(b) Disproportion between the D’s liability and the extent of culpability
(c) Concurrent duties in tort and contract
(d) The need for certainty in the law
(e) The effect of insurance.
Caltex Oil (Aust) Pty Ltd v the Dredge “Willemstad” (1976) 136 CLR
529 Caltex had an oil depot on the shores of Botany Bay. The Oil Refinery was owned by the
Australian Oil Refinery, across the bay. They built a pipeline under the bay from the refinery to
Caltex. The Willemstad ran over and smashed the pipeline due to the master’s negligence. The
oil could no longer be passed through the bay, and Caltex had to pay for trucks to go around the
bay to collect the oil. The pipeline was owned by the refinery, and so, Caltex sued on the basis of
purely economic loss, and was successful. The HC held that the general rule is that damages are
not recoverable for economic loss which is NOT consequential upon injury to person or
property. Foreseeability alone is not sufficient to allow for recovery. In exceptional cases, where
the D has knowledge or means of knowledge that P individually, or P as an ascertained member
of a class (and not merely a member of an unascertained class) is likely to suffer economic loss,
the D will owe a Duty of Care. The Court held that it would not formulate a principle that would
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cover all cases in which a duty is owed…all facts of a particular case must be considered (Gibbs
J). Stephen J held that policy considerations are also relevant.
Each of the justices delivered a separate judgment, and there is no discernable single ratio. In
Mitsui OSK Lines Ltd v The Ship ‘Mineral Transporter’ (1983) 2
NSWLR 564; (1986) AC 1 (PC) The Supreme Court applied Caltex however, the PC
applied the no recovery test, and was scathing in its criticism of Caltex. However, no attention
has been paid to the PC’s criticism.
The cases after Caltex have shown the difficulty of applying it.
Ball v Consolidated Rutile Ltd (1991) 1 QdR 524, the P was a professional
prawn trawler, who trawled in the bay. The D was a sand mining company, who allowed a larger
sand dune to slip into the bay, causing lots of pollution and debris, which caused the D’s
business to suffer. However, the P failed, as they could not demonstrate that the D knew of the
Ps individually, or as members of an ascertained class.
Christopher v MV ‘Fiji Gas’ (1993) Aust Torts Reps 81-202 The Ps were
crew members of the Antonia which was damaged as a result of the negligent navigation of the
Fiji Gas which ran into the Antonia. The Ps sued for loss of income. But, the Plaintiffs were
unsuccessful, as the Court applied Caltex’s distinction between ascertained and unascertained
classes. The Court held that the distinction was “not very satisfactory” but there was no
alternative test. The difficulty was at the margins in differentiating between ascertained and
unascertained classes. It was held that Plaintiffs were members of an unascertained class.
Hawkins v Clayton (1988) 164 CLR 539 Hawkins was the executor of a client and
also a beneficiary. Clayton had prepared a will, and kept it in safe-keeping in the offices. They
did not realize that the client had died, and the will remained in the offices, until Clayton retired,
at which time, a solicitor realised the mistake. The property was now worth considerably less.
The Court held that they could have found the P easily had they checked. The question was
whether Clayton owed a duty of care. This was determined on proximity principles. It was held
that in cases of pure economic loss, the relationship of proximity will be characterized by some
additional element which will commonly, but not necessarily consist of known reliance or the
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assumption of responsibility. It was held that the factors determinative of the existence of
proximity vary in different categories of cases. It was held that Clayton owed a DoC.
Bryan v Maloney (1995) 69 ALJR 375, the Ps loss was held to be the cost of
repairing the faulty footings. The courts looked at significant policy considerations. It was held
that cases of mere economic loss are special, and they commonly involve “an identified element
of known reliance…or the assumption of responsibility or a combination of the two.”
Perre v Apand (1999) 73 ALJR 1190, the P was a potato farmer in S.A. and they
shared a boundary with a property to whom the D’s supplied seed. The D negligently supplied
seed infected with bacterial wilt. Whilst the P’s crop was unaffected, they suffered economic
loss, as their main market was W.A, which had a statute which prohibited the importation of
potatoes “grown, harvested, brushed or packed” within a 20 km radius of the affected property.
The D knew of the existence of this statute. The HC referred to and approved Caltex stating that
there is no general rule that there is a Duty of Care not to cause reasonably foreseeable financial
harm. However, there are circumstances where recovery for pure economic loss is available. The
major policy considerations in this arena are the need to avoid indeterminate liability, and a need
to avoid making ordinary commercial activity tortious. The Court held that they were members
of an “ascertained class” and the D knew, or had the means to know who the members of the
class were at the time of the negligent act. It was held that just because the class is large, does not
mean that liability is indeterminate. The P’s vulnerability was an impornant factor (Gleeson CJ,
McHugh, Gummow, Kirby and Callinan JJ)
Gleeson CJ:
1. Favours an incremental development of the law
2. The Caparo test relies on concepts which are imprecise
3. The P’s vulnerability, propinquity, control exercised by defendant are all important factors.
4. Defendant had knowledge of an “ascertainable class of vulnerable persons.”
Gaudron J held that categories of case - protection of legal rights - a discrete category of liability
for pure economic loss.
Mchugh J:
1. Caparo test relies on concepts which are indeterminate and imprecise.
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2. No duty merely because defandant impairs a “precise legal right.”
3. Incremental approach is the most satisfactory.
4. Reliance and assumption of responsibility are indicators of plaintiff’s “vulnerability.”
5. The degree and nature of “vulnerability sufficient to found a duty will vary from category to
category and case to case.
Gummow J:
A. Doesn’t favour “the imposition of fixed categories”
B. Prefers the approach of Stephen J in Caltex - “salient features” which combine to constitute a
sufficiently close relationship to give rise to a duty.
C. The salient features of this case are that the defendant knew of the risk to the plaintiff,
defendant had control of the risk, and plaintiff had known power to protect them.
Kirby J:
D. Still favours Caparo test.
E. Finds a DoC on a 3 stage test:
(a) Reasonable foreseeability
(b) Proximity factors: vulnerability, geographical proximity.
(c) Policy
Hayne J:
1. Favours an incremental development
2. Factors important in recognizing a Duty of Care in economic loss cases are indeterminate
liability, allow commercial dealings defendant’s act of importing seed to SA was illegal had it
been done deliberately.
Callinan J:
A. Favours incrementa development.
B. Factors which in comb. Est. proximity includes:
(1) D was in control
(2) P member of a determinate class
(3) Geographical propinquity
(4) Commercial propinquity
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(5) P powerless to abate/prevent loss.
(6) No impediment to ordinary commercial activity
Economic Loss Connected to Injury to Person/Property
Economic loss connected to injury to person or property is recoverable dependent upon questions
of causation and remoteness of damage.
SCM v Whittal [1971] 1 QB 337, the plaintiff conducted a manufacturing business,
which suffered due to the negligence of an electrical contractor, who severed a cable which cut
power to the factory. This destroys goods which were in the course of production. The plaintiff
recovered the value of the damaged goods, and profit which would have been made on sale of
damaged goods. However, the defendant wasn’t liable for other profits lost by plaintiff solely by
reason of disruption to production e.g. goods which might have been for disruption. This later
damage was held not to be recoverable, as it was not caused by the damage to property.
Spartan Steel & Alloys v Martin [1973] QB 27, the P failed to recover lost
profits not consequential upon damage to the plaintiff’s property.
Death
At common law, the death of one person has never been regarded as an injury to another. At
common law, actio personalis moritur cum persona means that if the victim or tortfeasor dies
prior to judgment, the action perishe as well. However legislative reform allows for the survival
of a cause of action to the estate of the deceased. Some causes of action and heads of damage are
excluded.
S 2 of the Law Reform (Miscellaneous Provisions) Act states that “all causes of action shall
survive against or… for the benefit of the estate.” Except defamation, seduction inducing a
spouse to leave damages recoverable does not include:
A. Exemplary damages
B. Damages for loss of earnings or earning capacity where death is caused by D’s act, damages
calculated without reference to loss or gain to estate consequence upon death
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Where death is caused by defendant’s act, no damages are awarded for pain or suffering or
mental harm, or for loss of expectation of life.
One amount is awarded and then, apportioned amongst claimants as the Court thinks fit. The
basic principle is that dependants are to be compensated for pecuniary loss resulting from the
death: either actual, or prospective.
Parker v the Commonwealth held that damages “should be calculated in reference to
a reasonable expectation of pecuniary benefit…from continuance of the life.”
S 3(1) states that “when…the death of a person is caused by a wrongful act…and the act is such
as would (if death had not ensued) have entitled the party injured to maintain an action and
recover damages…then…the person who would have been liable…shall be liable to an action for
damages…”
S 3(2) states that funeral expenses can be recovered.
S 3 (3) in assessing damages, insurance, superannuation, pension payable as a result of death
are not taken into account.
S 4 allows an action to be brought for the following relatives: wife, husband, brother, sister
(including half brothers and sisters), parent, child, de facto spouse of deceased.
S 7 (definitions) defines parent to include grandparents step parents, person “in loco parentis’,
and child includes grandchild, stepchild.
The Stella [1900] P 161 the widow of a man, who died in a shipping accident, where he
drowned, brought an action on his behalf. He had been a paying customer; however, an exclusion
clause excluded liability for death or injury. The Court held that the exclusion clause was valid,
and thus, the widow had no action under Lord Campbell’s Act as the deceased would have had
no action, had he survived.
Nunan v Southern Railways [1924] 1 KB 223 A widow was held to have a cause
of action where the ticket of the deceased limited liability. The widow’s damages were not
limited because her action under legislation was new and separate from the personal contract
between the deceased and the railway company.
The wrongful act causing death need not be tortious.
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Woolworths v Crotty (1942) 66 CLR 603 Mr Crotty was killed by a faulty light
globe he bought at Woolworths which electrocuted him. It was held that the “wrongful act”
could be a breach of an implied term in the contract.
The relatives are required to establish that the wrongful act caused death.
Haber v Walker [1963] VR 339 Haber was involved in a serious car accident, which
rendered him very disabled. He also suffered a severe depressive illness caused by the accident,
leading him to commit suicide. The relatives sued the negligent driver. The D argued that the
causal connection had not been established between the accident and the suicide. Ultimately the
Court found for the widow, holding that it was the accident which caused the severe depressive
illness, which caused the deceased to commit suicide.
Under s 10 (4) of the Act, contributory negligence will not affect the relatives claim. This is
subject to s75 of the MAA and s 151N (5) of the Workers Comp Act.
McIntosh v Williams [1979] 2 NSWLR 543, holds that the action is brought by the
legal personal representative of the deceased - either the executor or the administrator of the
estate. This person brings the action on behalf of all entitled victims.
Concurrent Liability
Concurrent liability occur where more than one tortfeasor is negligent and causes plaintiff’s
damage.
The different types of tortfeasors include joint tortfeasors, several concurrent tortfeasors and
several tortfeasors causing different damage.
Joint tortfeasors are where more than one party acts together and jointly cause plaintiff’s
damage. This includes:
A. Vicarious liability
B. Agency
C. A duty imposed jointly e.g. two occupiers jointly liable to the injured P.
D. Where two or more defendants take concerted action to a common end e.g. author, publisher,
and printer of defamatory material.
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Traditionally at common law, the rule in Merryweather v Nixon 101 ER 1337 one
tortfeasor could not recover any contribution from another. This position has been abolished by s
5 of the Law Reform (Miscellaneous Provisions) Act 1944. This allows a concurrent tortfeasor
(whether joint or several) to recover from the others a contribution to the damages paid to the
plaintiff.
The contributions legislation is:
A. Only applicable in tort, and not in contract or other areas.
B. The contribution can be claimed by “any tortfeasor liable in respect of damage” so this
includes a defendant who has settled a claim, not only one against whom a judgment has been
entered.
A Contribution can only be claimed from a defendant who has contributed to the “same damage”
that is, joint or several concurrent tortfeasors.
B The contribution can be claimed from a defendant who “is or would if sued have been liable”
so it is immaterial whether the P actually sues all defendants or that contribution proceedings are
brought after the plaintiff’s claim would be statute barred.
C The contribution recoverable in terms of amount is “such as may be found by the court to be
just and equitable having regard to the extent” of the defendant’s responsibility for the damage.
D Under the leg’n a tortfeasor can join another tortfeasor to the proceedings.
Lister v Romford Ice and Cold Storage [1957] AC 555 the plaintiff was the
employee of Romford Ice, who was injured due to the negligence of a fellow employee - his
father. The p sued the employer for vicarious liability for the employee’s negligence. The
plaintiff is awarded damages, and then, the employer sues the negligent employee for
contribution to damages, and receives 100% contribution from the employee. S 3 of the
Employees Liability Act 1991 states that the joint tortfeasor rule does not apply to a
situation which is comparable to Lister.
SAMPLE QUESTIONS ON NEGLIGENCE
QUESTION ONE
a) Discuss the term Negligence as understood in Law.
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b) Discuss the various ingredients of proving Negligence in a court of Law.
c) Examine the possible defences one may point to avoid liability for the wrong of Negligence.
QUESTION TWOWhat is the theoretical difference between causation and remoteness?QUESTION THREECan you think of any situations in which the ‘but for’ test might be an inadequate device for settling disputes concerning causative links?
PRACTICAL QUESTION FOURDavid leaves an old paraffin lamp burning in his garden shed, where there is a strong draught. As a result fire starts, and spreads rapidly. This fire combines with another fire, the source of which is unknown, and the fire produced by this combination threatens Penny’s house, which is located a quarter of a mile away. Penny is holding a garden party at the time, and a general panic ensues. Richard, the butler, drops a tray containing rare antique glasses, one of which cuts the arm of Ben, a haemophiliac, who bleeds to death before hospital treatment can be obtained. Penny’s house is destroyed in the conflagration. Advise David, on his liability in tort, if any.
UNIT TWO: STRICT LIABILITY
INTRODUCTIONIn most of the torts we have dealt with so far, we have seen that either intention or negligence
has been essential condition of the defendant’s liability. We will not discuss wrongs in which
there is stricter liability that in others and where a much higher standard of care is required than PREPARED BY Mr. OKIYA JIMMY JANSKY
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in ordinary torts of negligence, in other words where the defendant is liable for any damage
which may result from his or act act independent of the existence of either intent or negligence.
The most important of such cases of strict liability is the rule in Rylands v Fletcher 1868. The
rule in this case is the most-often quoted example of strict liability. Basically it states that:
an occupier of land who brings onto it anything likely to
do damage if it escapes, and keeps that thing on the land,
will be liable for any damage caused by an escape
Rylands v Fletcher [1868] UKHL 1 was a decision by the House of Lords
which establishes a new area of English tort law. Rylands employed contractors to build a
reservoir, playing no active role in its construction. When the contractors discovered a series of
old coal shafts improperly filled with debris, they chose to continue work rather than properly
blocking them up. The result was that on 11 December 1860, shortly after being filled for the
first time, Rylands's reservoir burst and flooded a neighbouring mine, run by Fletcher, causing
£937 worth of damage. Fletcher brought a claim under negligence, through which the case
eventually went to the Exchequer of Pleas. The majority ruled in favour of Rylands; however,
Bramwell B, dissenting, argued that the claimant had the right to enjoy his land free of
interference from water, and that as a result the defendant was guilty of trespass and the
commissioning of a nuisance. Bramwell's argument was affirmed, both by the Court of
Exchequer Chamber and the House of Lords, leading to the development of the "Rule in
Rylands v Fletcher" 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 consequence of its escape".
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This doctrine was further developed by English courts, and made an immediate impact on the
law prior to Rylands, English courts had not based their decisions in similar cases on strict
liability, and had focused on the intention behind the actions rather than the nature of the actions
themselves. In contrast, Rylands imposed strict liability on those found detrimental in such a
fashion without having to prove a duty of care or negligence, which brought the law into line
with that relating to public reservoirs and marked a significant doctrinal shift. Academics have
criticised it, however, both for the economic damage such a doctrine could cause and for its
limited applicability.
The tort of Rylands v Fletcher has been disclaimed in various jurisdictions, including
Scotland, where it was described as "a heresy that ought to be extirpated", and Australia, where
the High Court chose to destroy the doctrine in Burnie Port Authority v General
Jones Pty Ltd. Within England and Wales, however, Rylands remains valid law, although
the decisions in Cambridge Water Co Ltd v Eastern Counties Leather plc
and Transco plc v Stockport Metropolitan Borough Council make it clear
that it is no longer an independent tort, but instead a sub-tort of nuisance.
Facts
In 1860, John Rylands paid contractors to build a reservoir on his land, intending that it should
supply the Ainsworth Mill with water. Rylands played no active role in the construction, instead
contracting out to a competent engineer. While building it, the contractors discovered a series of
old coal shafts and passages under the land filled loosely with soil and debris, which joined up
with Thomas Fletcher's adjoining mine. Rather than blocking these shafts up, the contractors left
them. On 11 December 1860, shortly after being filled for the first time, Ryland’s reservoir burst
and flooded Fletcher's mine, the Red House Colliery, causing £937 worth of damage. Fletcher
pumped the water out, but on 17 April 1861 his pump burst, and the mine again began to flood.
At this point a mines inspector was brought in, and the sunken coal shafts were discovered.
Fletcher brought a claim against John Rylands, the owner, and Jehu Horrocks, the manager of
Rylands' reservoir on 4 November 1861.
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Judgment
Liverpool Assizes
The tort of trespass was inapplicable, because the law at the time did not class one-off events as
"trespass"; an action was instead taken under the tort of nuisance. The case was first heard by
Mellor J and a special jury in September 1862 at the Liverpool Assizes; a court order led to an
arbitrator from the Exchequer of Pleas being appointed in December 1864. The arbitrator
decided that the contractors were liable for negligence, since they had known about the old mine
shafts. Rylands, however, had no way of knowing about the mine shafts and so not liable.
Exchequer of Pleas
The case then went to the Exchequer of Pleas, where it was heard between 3 and 5 May 1865. It
was heard on two points. Firstly, whether the defendants were liable for the actions of the
contractors and secondly, whether the defendants were liable for the damage regardless of their
lack of negligence. They decided for the first point that the defendants were not liable, but more
split on the second point. Pollock CB, Martin B and Channell B held that the defendants were
not liable, as since a negligence claim could not be brought there was no valid case. Bramwell
B, dissenting, argued that the claimant had the right to enjoy his land free of interference from
water, and that as a result the defendant was guilty of trespass and the commissioning of a
nuisance. He stated that
"the general law in matters wholly independent of
contract" should be that the defendants were liable, "on
the plain ground that the defendants have caused water
to flow into the [claimant]'s mines, which but for the
defendant's act would not have gone there".
Court of Exchequer Chamber
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Fletcher appealed to the Exchequer Chamber of six judges. The prior decision was overturned in
favour of the appellant Fletcher. Blackburn J spoke on behalf of all the judges and said that:
Blackburn J gave the leading judgment.
We think that the true rule of law is, that the person
who for his own purposes brings on his lands and
collects and keeps there anything likely to do
mischief if it escapes, must keep it at his peril, and,
if he does not do so, is prima facie answerable for all
the damage which is the natural consequence of its
escape. He can excuse himself by shewing that the
escape was owing to the Plaintiff’s default; or
perhaps, that the escape was the consequence of vis
major, or the act of God; but as nothing of this sort
exists here, it is unnecessary to inquire what excuse
would be sufficient. The general rule, as above
stated, seems on principle just. 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 his neighbour's reservoir, or whose cellar is
invaded by the filth of his neighbour's privy, or
whose habitation is made unhealthy by the fumes
and noisome vapours of his neighbour's alkali works,
is damnified without any fault of his own; and it
”
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seems but reasonable and just that the neighbour
who has brought something on his own property
(which was not naturally there), harmless to others
so long as it is confined to his own property, but
which he knows will be mischievous if it gets on his
neighbour's, should be obliged to make good the
damage which ensues if he does not succeed in
confining it to his own property. 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 consequence. And upon
authority this we think is established to be the law,
whether the things so brought are beasts, or water,
or filth, or stenches.
Blackburn J's opinion relied on the liability for damages to land available through the tort of
chattel trespass and the tort of nuisance, as well as the in scienter action, injury by a
domesticated animal known to have a disposition to injure. Rylands appealed.
House of Lords
The House of Lords dismissed the appeal and agreed with the determination for Fletcher. Lord
Cairns, in speaking for the House of Lords, stated their agreement of the rule stated above by
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Justice Blackburn, but added a further limitation on liability, which is that the lad from which the
escape occurs must have been modified in a way which would be considered non-natural,
unusual or inappropriate. The case was then heard by the House of Lords on 6 and 7 July 1868,
with a judgment delivered on 17 July. Oddly the court consisted of only two judges, Lord
Cairns and Lord Cranworth; Lord Colonsay failed to attend. The eventual judgment
confirmed Blackburn's decision and general principle, adding a requirement that the use be "non-
natural". The judgment of Lord Cairns LC was as follows.
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“Lord Cairns LC fully concurred with Blackburn J
My Lords, the principles on which this case must be
determined appear to me to be extremely simple.
The Defendants, treating them as the owners or
occupiers of the close on which the reservoir was
constructed, might lawfully have used that close for
any purpose for which it might in the ordinary course
of the enjoyment of land be used; and if, in what I
may term the natural user of that land, there had
been any accumulation of water, either on the
surface or underground, and if, by the operation of
the laws of nature, that accumulation of water had
passed off into the close occupied by the Plaintiff,
the Plaintiff could not have complained that that
result had taken place. If he had desired to guard
himself against it, it would have lain upon him to
have done so, by leaving, or by interposing, some
barrier between his close and the close of the
Defendants in order to have prevented that
operation of the laws of nature....
On the other hand if the Defendants, not stopping at
the natural use of their close, had desired to use it
for any purpose which I may term a non-natural use,
”
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for the purpose of introducing into the close that
which in its natural condition was not in or upon it,
for the purpose of introducing water either above or
below ground in quantities and in a manner not the
result of any work or operation on or under the land,
- and if in consequence of their doing so, or in
consequence of any imperfection in the mode of their
doing so, the water came to escape and to pass off
into the close of the Plaintiff, then it appears to me
that that which the Defendants were doing they were
doing at their own peril; and, if in the course of their
doing it, the evil arose to which I have referred, the
evil, namely, of the escape of the water and its
passing away to the close of the Plaintiff and injuring
the Plaintiff, then for the consequence of that, in my
opinion, the Defendants would be liable. As the case
of Smith v. Kenrick is an illustration of the first
principle to which I have referred, so also the second
principle to which I have referred is well illustrated
by another case in the same Court, the case of Baird v
Williamson 15 CB (NS) 317, which was also cited in the argument at the
Bar.
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SIGNIFICANCE of the rule in rylands v fletcher 1868
Change to the law
Early English common law had, in many instances, imposed liability on those who had caused
harm regardless of wrongful intent or negligence. Trespass was considered a remedy for all
tortious wrongs, and sometimes used as a synonym for torts generally. Over the centuries,
however, judges focused more on the intent and negligence behind the actions than the nature of
the actions themselves, leading to the development of negligence and nuisance and the further
development of trespass, at the time of Rylands, the previous case relied upon was Vaughan
v Menlove, decided in the Court of Common Pleas in 1837. The case had almost identical
facts to Rylands, but strict liability was never even considered. The case is instead thought of as
one of the best attempts of early 19th Century English judges to build up the law of negligence.
The outcome of Rylands meant that judges would again impose strict liability on defendants
who accumulated dangerous things on their land without any need to prove negligence or
wrongful intent. The decision won support for bringing the law relating to private reservoirs up
to standard with the law relating to public reservoirs, which contained similar statutory
provisions thanks to a pair of private Acts of Parliament passed in 1853 and 1864.
Assessment
The decision in Rylands initially faced little criticism within England and Wales, although many
American scholars and judges of the time felt that judgment was a poor one. Doe CJ of the New
Hampshire Supreme Court wrote that it
"Put a clog upon natural and reasonably necessary uses of
matter and tend to embarrass and obstruct much of the
work which it seems to be a man's duty carefully to do".
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The American interpretation was based primarily on the idea that it would cause economic harm.
Further American criticism is based on the idea that it is poor law. Firstly, they argue, it is not
trespass, since the damage is not direct, and secondly, it is not a nuisance, because there is no
continuous action. Glofcheski, writing in the Hong Kong Law Journal, notes that the doctrine
has not flourished... a tort imposing strict liability should be closely interpreted and
circumspectly applied". It has been argued that the decision was never entirely accepted by the
judiciary as a whole, and that it is difficult to justify. This is for two reasons; firstly, it is a case
of very limited applicability, and it has been suggested that it be folded into a general principle of
strict liability for "ultra-hazardous" activities. Secondly, subsequent case law in England and
Wales, particularly in Rickards v Lothian, has undermined the "non-natural use" element
by introducing a cost/benefit analysis which severely limits the decision's usefulness.
Developments
The party that can be sued in a Rylands claim is an owner or occupier of land, along with
anyone who stores or collects the dangerous material, as in Rainham Chemical Works
Ltd v Belvedere Fish Guano Co Ltd. The party suing was initially one with an
interest in land, but Perry v Kendricks Transport Ltd confirmed that an interest in
land was not necessary to bring a claim. Historically, personal injury claims have been allowed,
as in Hale v Jennings [1938] 1 All ER 579. More recent cases, however, such as the
wHouse of Lords decision in Transco plc v Stockport Metropolitan Borough
Council [2003] UKHL 61, have confirmed that Rylands is "a remedy for damage to land
or interests in land. It must...follow that damages for personal injuries are not recoverable under
the rule".
In Cambridge Water Lord Goff opined that the rule in Rylands should not further be
developed, and that rather than being an independent tort it should be instead considered a sub-
tort of nuisance. Statutory provisions, such as the Environmental Protection Act 1990, were a
more modern and appropriate way of addressing environmental problems which would
previously have been covered by Rylands. Subsequently, Transco disapproved of the Australian
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decision in Burnie Port Authority v General Jones Pty Ltd to absorb Rylands
into the general law of negligence, deciding that Rylands should continue to exist but, as Lord
Bingham said, as a "sub-species of nuisance...while insisting upon its essential nature and
purpose; and...Restate it so as to achieve as much certainty and clarity as is attainable". It is now
a sub-tort, rather than an independent tort; they have confirmed that it will be allowed to remain.
Donal Nolan has argued that to consider Rylands as part of private nuisance is unsound. Private
nuisance requires the claimant to have an interest in land, while Rylands does not; although
exceptions to this rule have occasionally been made in private nuisance, in Hunter v Canary
Wharf Ltd [1997] AC 655 , the House of Lords ruled that to make exceptions would transform
nuisance from a tort against land to a tort against the person, and should not be permitted. John
Murphy, Professor of Common Law at the University of Manchester, agrees with Nolan, and
makes the additional point that nuisance is focused on a loss of enjoyment to land, not physical
damage as Rylands is (Murphy (2004) 647). It has also been concerned that the reasonable use
test, which appears in nuisance, is not applicable to cases brought under Rylands.
THE MAIN ELEMENTS IN THE RULE OF RYLAND V FLETCHER 1868
1. Brings, collects and keeps
The first requirement under Rylands is that the defendant "for his own purposes brings onto land
and collects and keeps there". In Rylands, this was the keeping of water in a reservoir; other
cases in England and Wales have illustrated what sort of material is considered. In British
Celanese v AH Hunt [1969] 1 WLR 959, the accumulation was of metal foil strips.
"for his own purpose" is not understood to be "for his benefit", although that was what Blackburn
was referring to at the time; in Smeaton v Ilford Corp [1954] Ch 450, Rylands was held to
apply to a local authority accumulating sewage on its land, although there was no benefit to the
local authority from doing this.
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2. Mischief and escape
The next element of Rylands is that the thing be something "likely to do mischief if it escapes".
Before Transco plc v Stockport Metropolitan Borough Council this did not
have to be a dangerous item (see below); the risk was instead in its behaviour if it escapes. In
Rylands the "thing" was water. Other examples are fire, as in Jones v Festiniog
Railway [1868] LR 3 QB 733 , gas, as in Batchellor v Tunbridge Wells
Gas Co [1901)]84 LT 765 ,fumes, as in West v Bristol Tramways Co
[1908] 2 KB 14, and electricity, as in Hillier v Air Ministry [1962] CLY 2084.
The extent of the "thing’s accumulation can also be considered, as in Mason v Levy
[1967] 2 QB 530, where it was not just the type of thing kept but the sheer amount which
created the danger. It is essential for a Rylands claim that there be an escape of a dangerous
thing "from a place where the defendant has occupation of or control over land to a place which
is outside his occupation or control". In Read v J Lyons & Co Ltd [1947] AC 156,
an explosion in a munitions factory killed an inspector on the property. Rylands was held not to
apply, because there was no escape. The dangerous thing that escapes does not always have to be
the thing which was accumulated, but there must be a causal link. In Miles v Forest Rock
Granite Co (Leicestershire) Ltd [1918] 34 TLR 500, explosives stored on the
defendant's land led to the escape of rocks in a blast, and the defendant was found liable.
It should be noted that in Transco plc v Stockport Metropolitan Borough
Council [2004] 2 A.C. 1, 11, Lord Bingham stated obiter that;
"I do not think the mischief or danger test should be at all
easily satisfied. It must be shown that the defendant has
done something which he recognised, or judged by the
standards appropriate at the relevant place and time, he
ought reasonably to have recognised, as giving rise to an PREPARED BY Mr. OKIYA JIMMY JANSKY
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exceptionally high risk of danger or mischief if there
should be an escape, however unlikely an escape may
have been thought to be."
3. Non-natural use
The requirement of "non-natural use", which was created when the case went to the House of
Lords, was described by Lord Moulton, in Rickards v Lothian[1913] AC 263,
as "some special use bringing with it increased danger to others". Because the idea of something
being "non-natural" is a subjective one, the interpretation of this principle has varied over the
years. In Musgrove v Pandelis, a car filled with petrol was considered "non-natural",
while in Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd
[1921] All ER 48, so was the operation of a munitions factory during war-time. There is no
single concrete test to define what is "non-natural", for reasons given by Lord Bingham in
Transco plc v Stockport Metropolitan Borough Council [2003] UKHL
61; "[non-natural use] is not a test to be inflexibly applied. A use may be extraordinary and
unusual at one time or in one place but not so at another time or in another place...I also doubt
whether a test of reasonable user is helpful, since a user may well by quite out of the ordinary but
not unreasonable".
DEFENSES
There are several defences in England and Wales to a claim under Rylands v Fletcher; act of
an unknown third party, contributory negligence, consent and statutory authority. An act of an
unknown third party will absolve the defendant of liability, as in Perry v Kendricks
Transport Ltd [2003] UKHL 61. In Northwestern Utilities Ltd v London
Guarantee and Accident Co Ltd [1936] AC 108, the principle was established
that if a claimant knows of the unknown third party and their actions, the defendant is
additionally likely to be able to deny liability. As Rylands requires strict liability, any
contributory negligence voids most of the claim. Initially it was sufficient to offset the case itself;
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with the Law Reform (Contributory Negligence) Act 1945, courts instead apportion damages,
taking into account how much of the harm was contributed by the claimant. Nevertheless,
contributory negligence is still a viable partial defence to a Rylands claim. Other valid defences
are where the claimant has consented, expressly or impliedly, to the accumulation of the "thing",
and where there is statutory authority for the accumulation.
APPLICATION OF THE PRINCIPLE IN RYLAND V FLETCHER IN SEVERAL
COUNTRIES
1. Scotland
The principles of Rylands v Fletcher were initially applied in Scots law, first in the case of
Mackintosh v Mackintosh [1864] 2 M 1357, where a fire spreading from the
defendant's land to the claimant's land caused property damage. Scots lawyers and judges applied
Rylands differently to their English counterparts, however. While the rule is interpreted in
England and Wales as being distinct from negligence and the rules of duty of care and liability
applied there, the principle in Scotland was that "negligence is still the ground of liability. The
only difference is that in such cases the proprietor is doing something upon his property which is
in its nature dangerous and not necessary (or usual?) in the ordinary management of the
particular kind of property, and he is therefore bound to observe a higher degree of diligence to
prevent injury to his neighbour". The use of Rylands in Scots law, which was started in
Mackintosh, finally came to an end in RHM Bakeries v Strathclyde Regional
Council [1985] SC (HL) 17. Lord Fraser, as part of his judgment, stated that the
idea of strict liability that was brought into play by Rylands was not a part of Scots law, and the
idea that it ever had been valid was "a heresy that ought to be extirpated".
2. United States
Within the United States, there are many situations in which strict liability is applied to actions,
and Rylands is commonly cited as the origin of that rule; it was first applied in Ball v. Nye
99 Mass. 582 , by the Supreme Court of Massachusetts. The Supreme Court of Minnesota
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also adopted it in Cahill v. Eastman 18 Minn. 324, while the Supreme Courts of New
York, New Hampshire and New Jersey all rejected the principle, in Losee v. Buchanan
51 NY 476, Brown v. Collins 53 NH 442, and Marshall v. Welwood
respectively 38 NJL 339 Woodside III (2003) 8. The Supreme Court of New Jersey, however,
reversed Welwood in 1983 in DEP v. Ventron Corp 468 A.2d 150. Many courts in
the United States have attempted to use Rylands to justify absolute liability, which it was never
intended to do; while absolute liability is where no defence is applicable, in Rylands itself
Lord Cairns accepted that there were some situations where the case should not be applied
(Woodside III (2003) 7).
3. Australia
In Australia, the principles of Rylands v Fletcher were "killed off" by the High Court of
Australia in Burnie Port Authority v General Jones Pty Ltd (1994) 120
ALR 42. The High Court's view was that the Rylands principles "should now been seen ... as
absorbed by the principles of ordinary negligence, and not as an independent principle of strict
liability". Contrasting this, the principles have escaped destruction in Hong Kong, where the
courts are yet to follow the examples set by Australia and England and Wales, and Rylands
remains an independent tort.
Summary of the case:
Facts
The defendant occupied land near to where the plaintiff operated a coal mine. The coal seams
extended under the defendant's land. These had been previously worked but the tunnels and
shafts had been cut off and forgotten about. The defendant obtained approval to construct a
reservoir to provide water for his mill. The water from this reservoir permeated the old coal
shafts beneath and flooded the plaintiff's mine. The defendant succeeded in the Court of
Exchequer. The plaintiff appealed to the Exchequer Chamber.
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Issues before court
1. The issue was whether the law imposed an absolute duty upon an occupier to keep a
potentially dangerous substance on his land or;
2. Whether the occupier needed to take only reasonable and prudent precautions to do so.
The Decision (court holding)
Blackburn J (delivering the judgement of the court):
"the person who for his own purpose brings on his lands
[…] anything likely to do mischief if it escapes, must keep
it at his peril and is prima facie answerable for all the
damage which is the natural consequence of its escape."
Note once again
Fletcher employed competent contractors to build a reservoir on his land. During the
work, the contractors discovered an old mine whose shafts and passages connected with
another mine on neighbouring land owned by Rylands. The contractors did not inform
Fletcher and did not block up the shafts. When the reservoir was filled with water, the
water escaped from Fletcher’s mineshaft into Ryland’s thereby causing damage.
Rylands sued on the grounds of Fletcher’s negligence. Fletcher himself had not been
negligent as he had no knowledge of the existence of the shafts. He was not vicariously
liable for the actions of the contractors as they were not his employees.
The case eventually went to the House of Lords on appeal who upheld the original
judgement that Fletcher was liable in tort.
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During the appeal Lord Cairns, in agreeing with the above statement, added the
qualification that the rule only applied to a “non-natural” use of the land, and not to
circumstances where a substance accumulated naturally on land. The word “natural” has
since been extended to mean “ordinary”.
Contractors; A defendant was held to be negligent for the negligence of his contractors.
REMEDIES
The owner of land close to the escape can recover damages for:
1. Physical harm to the land itself (as in Rylands v Fletcher) and to other property.
2. It is no longer clear if a claimant can recover for personal injury.
THE VARIOUS DEFENCES TO THE RULE IN RYLAND V FLETCHER 1868
A number of defences have been developed to the rule in Rylands v Fletcher.
1. Consent
The express or implied consent of the claimant to the presence of source of the danger, provided
there has been no negligence by the defendant, will be a defence.
2. Common Benefit
If the source of the danger was maintained for the benefit of both the claimant and defendant, the
defendant will not be liable for its escape. This defence is either related to the defence of consent
or the same thing. According to Winfield & Jolowicz, p551, "common benefit seems redundant
(and indeed misleading) as an independent defence".
3. Act of a stranger
The defendant will not be liable if a stranger was responsible for the escape.
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In Rickards v Lothian [1913] AC 263: The D was not liable when an unknown
person blocked a basin on his property and caused a flood, which damaged a flat below.
4. Statutory authority
A statute may require a person or body to carry out a particular activity. Liability under Rylands
v Fletcher may be excluded upon the interpretation of the statute.
SAMPLE QUESTIONS ON STRICT LIABILITY
QUESTION ONE
Examine the case of Rylands V Fletcher (1865)3 H & C.774 and discuss all the legal principles therein.
QUESTION TWO
Explain the phrase ‘Non-natural user of land’as used in strict liability civil wrongs.
QUESTION THREE
Assess all the possible defences that one may raise to avoid tortuous liability for strict liability wrongs.(8 marks)
QUESTION FOUR
Explain what is meant by strict liability and state it relevance today.
QUESTION FIVEExamine relevance of the defences laid down in Rylands v Fletcher in the law of Tort today.
QUESTION SIXDiscuss the rules governing liability for animals on the highways with relevant case laws.
UNIT THREE: VICARIOUS LIABILITY IN TORT
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INTRODUCTIONUsually one is responsible for his own acts and not for the acts of others. But in certain
circumstances a person may be held liable for a tort committed by another, i.e. where A is held
liable for the tort of B committed against C, although A is no party to the tort. This is called
vicarious liability. This topic will be discussed under two heads:
a) The liability of a master for the torts of his servants.
b) The liability of a principal for the torts of an independent contractor employed by him.
c) Liability of master for the torts of his servant:
Who is a servant? A servant is a person who, by agreement expresses or implied is employed by
another and is subject to the command of that other as to the manner in which he shall do his
work. (Yeomens Vs. Hoakes. [1880] 6 Q. B. 532),
Every servant is in the employment of his master, but it does not follow that every person
employed is a servant. The test to be applied to ascertain whether a person doing work for
another is or is not his servant is to consider whether the master has complete control of him as
to the way in which he does his work. If he has, the person employed is a servant, otherwise not.
Fukasi Kabugo Vs. Attorney General of Uganda Civil Suit No. 1101 of
1974
Before: Allen, J.
Facts: In 1973 the Ministry of Health decided to mount a campaign against T.B which was very
common in Uganda. They contracted the World Health Organisation (WHO) which agreed to
assist by supplying the vaccine, transport, a consultant and the necessary personnel.
In return the Ministry of Health had to produce local counterparts to work with. As a result 75%
of the children aged 1 -13 years were vaccinated with (WHO) financing the programme paying
the local volunteers when they also trained and supervised with the help of the Ministry all over
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the country. The Plaintiff after being vaccinated developed acute osteomyelitis of the right
humerus which he claimed was due to negligence of the Defendant’s servant. He sued arguing
that since these servants were under the control of the Ministry of Health, the Defendant was
vicariously liable in negligence.
The Defendant denied any negligence and further argued that if there was any negligence, he
would not be liable since the vaccinators were not employed by the Uganda Government but
WHO.
HELD:
1. Negligence was not established as there was no evidence to establish that vaccination
was done improperly.
2. The Defendant can only be liable in this case if it can be established that the staff who
did the vaccination were his servants.
The immediate question would be as to whether there was a contract of service and the normal
tests therefore have been held to be:
a) The master’s power of selection of his servants;
b) Payment of wages;
c) The master’s right to control the method of doing work; and
d) The master’s right of suspension or dismissal.
3. Moreover it was observed by Mocatta, J. in Whittaker Vs. Minister of
Pensions and National Insurance (1967) 1 Q.B. 156 that “the
greater the degree of control exercisable by the
employer the more likely it is that the contract is
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one of services”. Nevertheless, there may be a contract of service in the
absence of a right to control the method of doing work, in the case of Horren Vs.
Swinton & Pendlebury Borough Council (1965) 1 W.L.R. 576.
If I were to adopt the above prepositions of law, I would hold that WHO was the
employer of the vaccination team and not the Uganda Government.
4. Where however, a person delegates a task or duty to another not a servant or employs
another, not a servant to do something for his benefit or the joint benefit of himself
and the other whether the other be called an agent or independent contractor such a
person will be liable for the negligence of the other in the performance of the task,
duty or act as the case may be.
5. This liability for casual delegation seems, however to have been more or less
restricted to cases involving loan or use of vehicles but there is no reason why it
should not be extended to services such as those rendered in the present case.
6. In the present case therefore if negligence was proved, and in face of vague, unhelpful
or not particularly relevant precedents, I would hold both the Uganda Government
and WHO jointly liable in negligence to the Defendant for “there can be no doubt that
the vaccination programme was for the benefit of the people of Uganda and for the
Government of Uganda (Defendant) in particular.
7. The Defendant had a very considerable interest in the project and supplied
counterpart staff and administrative assistance all the way down. They were clearly
concerned that it should be carried out efficiently and effectively and without
negligence.
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Thus, whether the relationship of master and servant exists is a question of fact depending on all
the circumstances of the case. The test to be generally applied lies in the nature and degree of
detailed control over the person alleged to be a servant.
GENERAL RULE
A master is liable for all torts committed by his servant in the course of his employment and
within the scope of his authority. An act is said to be done within the course of the servant’s
employment where, although itself unauthorized it is so incidental to some act or class of acts
which the servant was authorized to do that it m0oay be said to be a mode, though an improper
one, of performing them.
Thus whether a particular tort is committed in the course of the servant’s employment is a
question of fact. The following principles may, however, be laid down to determine this
question.
A tort is committed by the servant in the course of his employment if it consists of:-
a) A wrongful act or omission expressly or impliedly authorized by the master; or
b) A wrongful act or omission which is an unauthorized manner of doing something
authorized by the master; or
c) A wrongful and unauthorized act or omission which is subsequently ratified by the
master.
The basis of the liability of a master is that a person who employs others to do for him what he
would otherwise have to do for himself is liable to answer to third parties not merely for the
instructions that he gives but also for the manner in which those instructions are carried out. In
other words, a master is responsible not only for what he authorizes his servant to do but also for
the way in which the servant does it. PREPARED BY Mr. OKIYA JIMMY JANSKY
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Thus a master is held responsible for all torts which he has previously authorized or subsequently
ratified, and also for torts which he has not authorized if they are so closely connected with
authorized acts that they may be regarded as modes of doing those acts.
On the other hand, if the tort committed by a servant is not so connected with an act authorized
by his master as to be regarded an improper mode of doing that act, but is an entirely
independent act of the servant, then the tort is committed outside the course of the employment,
and the master is not liable. Again, a tort is not committed in the course of the employment if the
servant was acting wholly for his own purpose, not for his master’s. The servant is then said to
be “on a frolic of his own”.
Examples:
The driver of a petrol lorry, whilst transferring petrol from the lorry to an underground tank,
struck a match to light a cigarette and threw it on the ground. A fire resulted which caused great
damage. Held, his employers were liable. Though the act of negligence was done for his own
convenience it was a negligent method of doing the work he was employed to do viz watching
over the flow of the petrol. (Century Insurance Co. Vs. N. Ireland Transport
Boards, (1942) A. C. 509).
John Imina vs. Arua Town Council Civil Suit No. 1245 of 1973
High Court Before: Kantinti, J.
Vicarious liability Liability of master for servant’s acts done in the course of his employment
one it is that the servant was employee of master there is a presumption that he was in course of
his employment. Burden lies on the master to prove the contrary.
FACTS:
The Plaintiff’s claim against the Defendant was for damages in negligence for the injuries he
suffered in an accident. The Plaintiff was working as a turn boy for Arua Town Council in 1973.
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On 23rd March 1973 he was told by the town clerk to tow a vehicle which was stuck on the road.
On 24th March 1973 he and the driver of the tractor went to tow the vehicle which did not belong
to the Council. While towing the said vehicle, the tractor overturned and the Plaintiff was
involved in an accident. The day of the accident was Saturday and not an official working day.
ISSUES:
1. Was the driver acting in the course of the employment?
2. Was the Plaintiff an authorized passenger?
HELD:
1. The principle governing liability of a master for the negligence of his servant is that
where the driver was the owner’s servant, the inquiry was whether the driver was
driving solely for his own purposes or partly for the purpose of the owner and, the
question in such a case was whether the servant was acting within the scope of his
employment at the material time. If he was then a mere permission might be enough
to fix the master with liability.
2. Once the Plaintiff has pleaded and proved that at the time of accident, the driver was
driving the car which he was employed to drive, a prima facie case has been
established that he was acting within the scope of his employment and the burden of
proving the opposite shifts to the employer.
3. In the instant case there was abundant evidence to show that both the Plaintiff and the
driver were instructed to use the tractor which caused the accident and therefore the
driver was acting within the scope of his employment and the Plaintiff was an
authorized passenger.
Example:
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2. A housemaid, whose duty it was to light fires, found that a fire would not burn and,
believing that chimney to be choked, lit some straw in it and set the house on fire.
Held her master was not liable. Her duty was to light fires, not to clean chimneys.
(Makemzie Vs. Mcleod (1834) 10 Bing 385).
3. The Defendant sent a car-man and clerk with a horse and car to deliver some wine
and to bring back some empty bottles. The car-man, on his return, instead of
performing his duty and driving to the Defendant’s office, drove in quite another
direction on private business of the clerk and while they were thus driving, the
Plaintiff was run over. Held, the master was not liable, the servant being on a frolic of
his own. (Storey vs. Ashton, (1869) L. R. 4 Q. B. D 476.
Peter Ndula vs. Attorney General of Uganda
Civil Suit No.9 of 1976
Before: Nyamchoncho, J.
FACTS:
The Plaintiff brought an action against the Attorney General for personal injuries he sustained
when he was knocked down by the Defendant’s car. The Defendant’s car was being driven by a
Police constable who was supposed to deliver the Secretary General of O.A.U. The driver
testified that at the time of the accident he was driving on his own and did not have his masters
consent to drive the car at that time.
HELD:
The said police constable had set out on a floric of his own when the accident happened. The
driver had no permission of his employer to take the car and therefore Attorney General was not
vicariously liable.
WILLFUL TORTS OF SERVANT:
A master is liable even for the willful torts of his servant committed within the scope and in the
course of his employment though committed purely for the servant’s own benefit. Thus where PREPARED BY Mr. OKIYA JIMMY JANSKY
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the Plaintiff went to the Defendants’, a firm of solicitors, for the purpose of selling some
property and delivered the same to their managing clerk, who then sold the property in his own
name and absconded with the proceeds, it was held that the Defendants were liable, as the clerk
was carrying out the duties for which he was employed. (Lloyd Vs. Grace & Co.
(1912) A. C. 716).
Torts expressly forbidden:
If the wrongful act is done in the course of employment and it’s a mere impropriety in the mode
of performing the servant’s duty. It is immaterial that the servant had express orders not to
commit that impropriety; for the master cannot discharge himself from liability by giving
instructions to the servant as to the manner in which his duty shall be performed.
Thus, where a garage hand had been expressly forbidden to drive vehicles (though it was part of
his general duties to move them) and contrary to his express instructions he drove a vehicle and
damaged it, it was held that his employers were liable, the servant having acted in the course of
the employment. (L. C. C Vs. Cathermoles (Garages) Ltd. (1953) I. W. L. R.
997.
Byarugaba vs. Kilembe Mines Ltd. [1972] B. A. 341
Master and servant – Vicarious liability.
Master and servant – work unauthorized but within course of employment – master liability.
FACTS:
The Plaintiff, a miner employed by the Defendant claimed damages for injuries sustained in a
rock- fall in the mine. As a result both legs were amputated. The Plaintiff had been ordered to
work in the stop by the gang boss before the necessary supports had been fitted.
+
HELD:
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1. The gang boss had disobeyed instructions and ordered the Plaintiff to work in the stop
before the necessary supports had been fitted.
2. This was merely an unauthorized method of doing his work and his employers were
liable for negligence.
Assault by servant:
When the criminal act is done by the servant deliberately of his own caprice, the master is not
liable. But where the wrongful act is done in the course of employment the master is liable.
Thus, where the Plaintiff, a passenger sustained injuries in consequence of being pulled violently
out of Railway carriage by one of the Defendant’s porters, who acted under the erroneous
impression that the Plaintiff was in the wrong carriage, the Defendants were held liable. The
porter was doing in a blundering way that which he was employed to do i.e. to see that
passengers were in the right train. (Bayley vs. Manchester Rly (1873) L. R. 8 C. P. 148.
MUWONGE vs. Attorney General of Uganda
[1967] E. A. 17
The Appellant’s father was killed during a riot. He was shot by a policeman who with his fellow
policeman had been instructed to disperse the riotous crowds by the use of rifles.
HELD:
(Newbold P.) Since use of rifles must have been something contemplated by their seniors, the
Government should be liable.
An act of a policeman in using his rifle would not be in the exercise of his duties if there is clear
evidence that its use (rifle) was for his own purpose and unconnected in any way whatsoever
with his duties.
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A master would be held liable for the wrongs of his servants if these wrongs were committed
during the course of their employment therefore Attorney General was liable. The law is that
even if the servant is acting deliberately, wantonly, negligently or criminally, even if he is acting
for his own benefit, nevertheless if what he did was merely a manner of carrying out what he was
employed to carry out, then his acts are acts for which his master is liable.
It should be noted that the fact that the wrongful act is also criminally punishable makes no
difference to the master’s liability for the tort of his servants, committed in the course of his
employment. Thus, where the Defendant’s manager went to the Plaintiff’s house for the recovery
of the price of furniture supplied by the Defendant and there assaulted the Plaintiff, it was held
that the mere fact that the assault was criminal offence and note a tortious act, did not affect the
liability of the Defendant for the act of his servant. (Dyre vs. Lunday (1895) I.Q. 13.
742.
It must, however, be remembered that the liability of master does not extinguish that of the
servant. Both servant and master are jointly and severally liable for the tort of the servant.
Hence, the person injured may maintain the action against either.
a) Liability of an employer for the tort of his independent
contractor:
Generally, an employer is not responsible for the torts of his independent contractor.
“An independent contractor is one who undertakes to produce a given result, but so that in the
actual execution of the work he is not under the order or control of the person for whom he does
it, and may use his own discretion in things not specified beforehand”. (Pollok, Torts, 15th
edition P. 63), the servants of the independent contractor stand in the same position as their
master, so that the employer of the contractor is not liable for torts committed by the contractor’s
servants.
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This general rule is however subject to three exceptions:-
1. Where the act which the contractor is employed to do is itself a tort, the employer is
liable.
Example:
A company which had no statutory powers to take up streets directed their contractors to open
trenches in the streets of Sheffield. In doing so the contractor’s servant left a heap of stones over
which the Plaintiff fell and was injured.
HELD:
The Defendant Company was liable for the consequence of their unlawful act. (Ellis Vs.
Sheffield Gas Consumers Co. (1853) 2 E & B 767).
2. Where the employer is under an obligation whether imposed by agreement or statue,
to do a thing and he employs an independent contractor to do it on his behalf, he is
liable if the contractor fails to do it or does it improperly.
Example:
A statute imposed a duty upon the Defendant of making a bridge that would open in a particular
way. They employed a contractor to build the bridge and, owing to his negligence, the bridge
would not open it that way. The Defendants were held liable. (Hole Vs. Sittingbourne
Rly (1861) 6 H 7 N, 488).
3. Where the act, which the contractor is employed to do is one which, if done by the
employer himself, would, though lawful in it, be one at his peril, he is liable, if the
contractor does it improperly.
Example:
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The Plaintiff and Defendant were owners of two adjourning houses, the Plaintiff being entitled to
have his house supported by the Defendant’s soil. The Defendant employed a contractor to pull
down and rebuild his house. The Plaintiff’s house suffered damage owing to the contractor
negligently failing to ensure that it had sufficient support. Held, the Defendants were liable.
(Bower Vs. Peate (1876), I. Q. B. D. 321).
It should be noted that the employer is never liable for what is called the collateral or casual
negligence of an independent contractor employed by him. As we know a master has control
over his servant as to the way he does his work and it is his duty to see that the work is so done
as not to cause damage to others.
SAMPLE QUESTIONS ON VICARIOUS LIABILITY
QUESTION ONE
Discuss the application of the principles of vicarious liability in East Africa?
QUESTION TWO
Discuss the various elements constituting vicarious liability?
QUESTION THREE
Discuss in nutshell the justification of vicarious liability today?
UNIT FOUR: NUISANCE
INTRODUCTION
The word Nuisance is derived from the French word “nuire” which means to do hurt or to
annoy. According to Stephens, he defined nuisance as anything done to hurt or annoyance of the
land, tenement or hereditaments of another and not amounting to a trespass. Nuisance may also
be described as unlawful interference with a person’s use or enjoyment of land, or some right
over or in connection with it. Nuisance are of two kinds i.e. (a) Public and (b) Private, although
there some act or omission which amount to all of them
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Private Nuisance
Hargrave v Goldman (1963) 110 CLR 40 per Windeyer J nuisance is “an
unlawful interference with a person’s use or enjoyment of land, or some right over or in
connection with it.”
Harley v Esso Petroleum (1961) 2 All ER 145 This was a test case brought by
the plaintiff, who lived in a terrace in Fullham London against Esso who had an oil depot on the
banks of the River Thames. Tankers would arrive from up the river and oil would be transferred
from the river tankers and into storage tanks. Then, road tankers would come and take the oil
from there. A night shift was introduced. The plaintiff sued under nuisance for the noise from the
pumps, a pungent smell, and acid smuts which rose out of the chimneys which soiled their
washing, and damaged their cars. The P sought an injunction - the general remedy for nuisance.
The courts held that the P was entitled to succeed as it was held that the emissions of acid smuts
seriously impaired the enjoyment of land. Further, the smell wasn’t “merely trivial” and was
particularly pungent. Finally, the noise at night was held to be a serious nuisance which went
beyond a triviality.
St Helens Smelting Co v Tipping (1865) 11 ER 1483, the court held that a
private nuisance could occur:
(A) By interference with the P’s use and enjoyment of land
(B) By material damage to property.
It was held that the factor of locality was irrelevant where there is material damage to property
(i.e. who’s there first). In other cases, the question of locality is a factor to be considered. (Not
necessarily a decisive factor). This case was approved in Harley v Esso.
Title to Sue
Oldham v Lawson (No 1) (1976) VR 654 Where the P is not the owner; they have
no proprietary interest in the property, and thus had no standing to sue. In this case, the A
leasehold interest is sufficient. The Court held that as the P’s wife owned the property, the
husband had no title to sue.
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Khorasandjian v Bush (1993) QB 727, the P was successful in an action for
nuisance as the D had been making phone calls and other harassing conduct. This was despite the
fact that she had no proprietary interest - she lived with her parents, and thus, didn’t own the
property.
Hunter & Ors v Canary Wharf (1997) All ER 426 overruled Khorasandjian
and re-established the requirement that the P must have a proprietary interest in the land to sue.
Which Rights are Protected
Victoria Park Racing & Recreation Grounds Co LTd v Taylor (1937)
58 CLR 479, the P owned a racecourse, and Taylor’s property shared a boundary with the
racecourse. He constructed a platform on his property such that you could watch the races. He
entered into an agreement with the local radio station whereby they could broadcast the race. The
HC held that the D’s actions did not affect the use and enjoyment of the property, as it was a
racecourse, and the D’s actions did not disrupt its operation as a racecourse. It had an effect on
the takings the owner got, but it was held that an action in nuisance does not protect that interest.
Dollar Sweets Pty Ltd v Federated Confectioners Association of
Australia (1986) VR 383, the defendants were unionists who picketed Dollar sweets
which they had formed a large picket line outside the P’s premises, preventing other employees
from entering the premises. The Supreme Court of Victoria held that this constituted nuisance, as
the use and enjoyment of land was hampered by the defendant’s preventing others from entering
the P’s premises. It was held to interfere with the P’s right to free access to and from the
property.
Broderick Motors Pty Ltd v Rother (1986) Aust Torts Reps 88-059,
the D purchased a car from a used car dealer, which was not in good working condition. As a
result, he parked the car on the street, with a sign which stated: “For Sale; Distance Travelled:
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Unknown; Purchased from: Broderick Motors. Be the 10th owner of this bomb.” The plaintiff
sued in nuisance. However, it was held that it was not nuisance as the D had simply parked the
car on the street, and had not interfered with the use and enjoyment of his land.
Animal Liberation Vic (Inc) v Gasser (1991) 1 VR 51 The defendants were
opposed to the use of animals in a circus, and demonstrated outside the plaintiff’s circus. Patrons
had to walk the “gauntlet” with demonstrators shouting slogans. This was held to be nuisance by
the Ds by “besetting” the property and putting entrants in fear for their safety.
Factors in Determining What Conduct is Nuisance
Halsey v Esso looked at whether the factors of smell, noise, and pollution were “mere
trivialities.” That is, the real question is, was the D’s conduct reasonable?
Munro v Southern Dairies Ltd (1955) VLR 332 It was held that triviality is
measured according to ordinary notions.
St Helens Smelting Co v Tipping Held that the question of locality is only relevant in
cases of intangible interference, and not where there is material damage, and even then, it is one
of many factors considered.
Clarey v The Principal & Council of The Women’s College [1953] 90
CLR 170, the defendants were the Women’s college who leased premises to students in which
the neighbours brought an action in nuisance for the noise generated by the students. However,
the HC held that the noises were of the sort incidental to the occupation of the property, and thus,
the neighbours were unsuccessful.
McKenzie v Powley the Plaintiffs were the neighbours of a Salvation Army hall, who
commenced services at 7 am on a Sunday. The plaintiffs brought an action in nuisance, and the
SASC agreed that the noise constituted a nuisance at 7 am, but not at 9 am.
Robinson v Kilvert (1889) 41 Ch D 88, the P used a warehouse to store delicate
paper products, and a manufacturing process of the D’s required heating, the heat damaging the
Ps products. However, it was held that where P is involved in “an exceptionally delicate trade”
he cannot recover for nuisance.
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Hollywood Silver Fox Farm v Emmett (1936) 2 KB 468, the D’s son fired
off shots close to the pens of silver foxes under the instructions of D, maliciously in order to
annoy the P. When alarmed, silver foxes eat their young, and refuse to breed, and this happened
as a result of the D’s son’s actions. The Court held that as the D had acted maliciously, the P
would recover, even though the P’s activity was hypersensitive.
Who Is Liable
The D does not need to have proprietary rights in the land from which the nuisance emanates.
Fennell v Robson Excavation Pty Ltd (1977) 2 NSWLR 486 The D was a
contractor who was found to be liable for creating a nuisance even though he was not in
occupation or possession of the land. He had excavated so much land that the Plaintiff’s house
started sinking.
Where an owner adopts or continues a nuisance, they are liable.
Sedliegh-Denfield v O’Callaghan (1940) AC 880 The local council installed a
drainage pipe on the D’s land. In installing it, they had trespassed. The D didn’t know of this, but
when they came to know of it, they used the pipe to drain their property. The result was that
some of the drainage had overflowed on to the Ps property. The court held that the D was liable
for nuisance, as they ahead allowed the nuisance to continue, and they had further adopted it. D
“continues a nuisance if with knowledge of its existence, he fails to take any reasonable means to
bring it to an end.” D adopts nuisance “if he makes any use of (the thing) which constitutes the
nuisance.”
Montana Hotels v Fasson Pty Ltd (1986) 69 ALR 258, the Ds were in
possession of a faulty downpipe, which caused the hotel to be flooded. However, it was held that
the Ds weren’t liable as the D didn’t know or ought not to know of the downpipe. There is an
obligation to stop nuisance where the D knows of it.
Goldman v Hargrave [1967] 1 AC 645 (PC) It was held that once the farmer
became aware of a danger on the property they should have taken steps to eliminate or reduce the
danger. The PC held that it wasn’t the actions of what the reasonable person would have done
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that is taken into account, but the D’s resources - physical and financial, which are taken into
account.
Leakey v National Trust [1980] QB 485, the Trust was the occupier of a
property which was on Burrow Hump, which was liable to slip. The D knew of this, and did
nothing. The P suffered damage as a result, and the D was held to be liable in nuisance, as they
didn’t take any remedial action, and their resources were more than sufficient to undertake the
work. This followed Goldman v Hargrave.
Defence of Statutory Authorisation
Where an act of parliament expressly or impliedly authorizes the creation of a nuisance, it is a
proper defence.
Managers of The Metropolitan District Asylum v Hill (1881) 6 App
Cas 193 The asylum was a creature of statute, which was charged with the job of setting up a
hospital for people with contagious diseases. The neighbours brought an action in nuisance. The
Ds argued that they were statutorily authorized to set up the hospital, and thus, were immune
from an action for nuisance. The court held that where a statute expressly states the
authorisation, this is true, where it is implied; the onus is on the D to demonstrate the
authorisation. The Court held that the weight of evidence didn’t favour the authorisation.
York Bros (Trading) Pty Ltd v The Commissioner for Main Roads
(1983) 1 NSWLR 391, the Commissioner built a road bridge across a navigable river,
which obstructed the flow of the river. The Ps sued in nuisance. The Ds argued statutory
authorisation by the Main Roads Act. The NSWSC held that the act did not provide a defence.
Powell J held that:
A Prima facie, it is not the intent of the legislature to authorize nuisance.
B D must show that the work was reasonably necessary
C And that it was properly performed
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D And that there was no reasonable way of performing the work without creating a nuisance, in
light of available scientific knowledge
Public Nuisance
Public nuisance affects the public at large, is a crime, the action is brought by the Attorney
General, and private individuals don’t have standing to sue unless they have suffered particular
damage that is over that which suffered by the public at large.
AG v PYA Quarries Ltd (1957) 2 QB 169 Denning J held the following on the
question of how many persons are “the Public”:
“I decline to answer how many people…I prefer to look at the reason of the thing… a public
nuisance is…so widespread in its range or so indiscriminate in its effect that it would not be
reasonable to expect one person to take proceedings…but it should be taken on the responsibility
of the community at large.”
Worker’s Compensation
The Worker’s Compensation Act 1987 has been significantly amended by the NSW
parliament in 2001, with the Compensation Court hearing only existing claims and eventually
ceasing operations. New claims are to be determined by the Compensation Commission with the
aid of expert panels. Common law rights are subject to further amending legislation still to be
finalized. These rights are to be substantially limited. A judicial enquiry headed by Justice
Sheahan was set up to look at some of these proposed changes and has recently reported to
parliament.
The pieces of legislation governing Worker’s compensation in NSW are: the Workers
Compensation Act 1987, Workplace Injury Management and Workers Compensation Act
1998, and Workers Compensation Legislation Amendment Act 2001 (still to be proclaimed).
The former two pieces of legislation are to be read as if they are part of the same act. Where
there is a discrepancy, the later act prevails, (Section 2A). The 1987 act continues to govern
liability to pay compensation, entitlements (other than to lump sums) and Common Law claims.
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It is anticipated that c. law claims will be significantly restricted or even abolished by further
amending legislation in 2001 or 02.
The 1998 Act primarily deals with rehabilitation and injury management and procedures for
claims (including conciliation). The claims and procedures provisions have been amended by the
2001 act and apply now only to old claims. “Injury management” is defined as the process that
comprises activities and procedures that are undertaken or established for the purpose of
achieving a timely, safe and durable return to work for injured workers. (Section 42(1))
The 2001 Act makes significant amendments relating to lump sum compensation and sets up
new claims procedures. Disputed claims are referred to the Workers Compensation
Commission for assessment. The Compensation Court only has jurisdiction in respect of
existing claims. It will eventually cease to exist.
The legislation at present:
Creates rights on a no-fault basis for injured workers and their dependants (where the
worker is deceased) Is in addition to common law rights BUT
Limits workers right to damages at common law requires workers to elect between
recovery at workers compensation and common law recovery.
Section 4 defines a worker as “a person who has entered into or works under a contract of service
or apprenticeship with an employer…” N.B. it includes state government employees, but, fed
government employees have their own scheme. The common law provides the definition of a
‘contract of service.’ (Zujis v Wirth, Stevens v Brodribb, Hollis v Vabu). Under sch1
of the 1998 Act, some contractors (Example outworkers) and certain industries (Examples cane
cutters, timber fellers, fencers) are classified as deemed workers.
Injury s4 ’87 Act:
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Personal injury arising out of or in the course of employment includes diseases of gradual onset
(S15 & 16) includes aggravation, acceleration, exacerbation of any disease or illness or
condition.
Psychological injury (S 11A)
Dust diseases (Workers Compensation (Dust Diseases) Act)
Journey provisions injuries received on a periodic journey (home to work & back) are
compensable provided there is no interruption or deviation which materially increases risk of
injury (S10)
THERE MUST BE A CAUSAL CONNECTION BETWEEN THE
EMPLOYMENT AND THE INJURY
Serious and willful misconduct by the worker disqualifies them from compensation unless the
injury results in serious permanent disability or death. (S14)
Periodic payments - a weekly sum
Total incapacity for the first 26 weeks of total incapacity the worker is paid the current weekly
wage rate, with reference to the AWARD rate. After this time, the worker is paid a lesser
amount, prescribed under the Act (having regard to dependants) or 90% of the A.W.R.
whichever less is. (S36)
Notional Total Incapacity where the employer’ can’t provide suitable light work to employee
who is partially incapacitated, the employee is deemed totally incapacitated and is entitled to
compensation accordingly. This is restricted to one year. (S 38(2)) (S 38)
Partial incapacity - where a worker is unable to do pre-accidental work and is being paid a lesser
wage ‘cost of the partial incapacity is entitled to the difference between actual and probable
weekly earnings but for the injury.
Lump Sum Benefits for claims under pre-2001 legislation: Are in addition to weekly benefits.
Section 66 Lump sum compensation for permanent loss or impairment of body parts - Table of
Disabilities
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Section 67 pain & suffering compo subject to a threshold - worker must be entitled to at least
10% of max payment under s66.
Max amount payable is avail. Only in a “most extreme case” (section 67(3))
Lump sum benefits as stated under 2001 legislation (Applies to injuries occurring after
commencement of the Act)
Section 65 &66 omitted new section 66 lump sum compensation for permanent impairment
calculated as prescribed by the regulations on the basis of the degree of permanent impairment
resulting from injury. Degree of impairment to be agreed or assessed by approved medical
specialist (with provision for appeal to a panel only on very limited grounds) new section 67
compo for pain & suffering only for workers whose degree of permanent impairment is greater
than that prescribed by the regulations. Max amount not to exceed $50 000.
Death Benefits
Section 25 - wholly defendant persons paid a lump sum, if more than one the sum is
apportioned. Dependant children entitled to weekly compo payment to age 16 or 21 if student
Partial dependants awarded a portion of lump sum in discretion of commission
Medical expenses - Section 60
Common Law claims under W.C. Act sig. Limitations on entitlement to and calculation of
damages. Election provisions worker must elect b/w commencement of proceedings @ c.law &
payment of workers compensation benefits under s66/7 (section 151A) Election is irrevocable
(without leave of court and deterioration in worker’s condition) If a worker elects to proceed @
criminal law, and is unsuccessful, then cannot come back to s66/7 claim. If damages awarded,
then a worker is not entitled to any workers compensation benefits and any benefits already paid
will have to be repaid.
The time limit for common law claims is three years…except with leave of the Court. (Section
151D)
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The threshold for criminal law damages discourages minor claims. S 151G states that the sum for
damages for pain and suffering is to be awarded only in most extreme cases and if damages
assessed at below a specific figure, then NO damages payable, and a deductible (i.e. reduction)
applies up to a higher figure. S151H states that there will be no damages for economic loss
unless there has been a serious injury - one where there is at least 25% of the s66 benefit would
be payable or damages over a certain amount would be payable for non-economic loss.
Motor Accidents Compensation
The Motor Accidents Act 1999 unlike the Workers Compensation Act leaves the common law
regarding negligence intact. It simply ‘fiddles’ with the damages available and provides a
threshold before one can sue.
It commenced on 1.10.99 and applies to accidents after that date. The old act (MAA1988) as
amended applies to matters arising before that date. It significantly alters and reduces the rights
of claimants to compensation for injuries received in motor accidents. The political motivation
for this is to reduce costs of compensation, legal costs, and thereby the cost of “Green Slip”
insurance. It is designed as an assessment and settlement procedure whose aim is to keep cases
out of the court system.
Definitions:
Motor accident: accident or incident caused by the fault of the owner or driver of a motor vehicle
in the use or operation of the vehicle.
Injury: personal injury includes pre-natal injury, psychological or psychiatric injury, and damage
to artificial members.
Procedure for all claims:
Report to police & lodge notification within 28 days of accident (section 70)
Insurer must notify within ten days whether it accepts provisional liability for medical treatment.
SAMPLE QUESTION ON NUISANCE
QUESTION ONE
Define and discuss the relevance of Nuisance law today?
QUESTION TWO
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Discuss with valid ingredients the two types of Nuisance in the Society
QUESTION THREE
Compare and contrast public Nuisance and Private Nuisance in the Society?
UNIT FIVE: DEFAMATION
INTRODUCTIONDefamation is where a statement is published to a third party other than plaintiff injuring their
reputation and lowering their self-esteem in society. It is of two types namely;
TYPES OF DEFAMATION
1 libel which is a defamatory stamen in permanent form as seen in Monson v Tussand
(1849)1 QB 671 where court decided on a wax statute, court further held that anything
which has a permanent lasting form can libel including chalk marks on a wall and it is actionable
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per se meaning one is liable without any proof of damages. This defamation can be prosecuted as
crime as well as tort while;
2 slander according to Winfield and Jolowicz is where defamatory statement is made by a
transitory representation usually an orally spoken representation and is temporary. It is
prosecuted as a tort only. It requires proof some injury before a law suit can be brought. Slander
defamation becomes actionable per se under the following circumstance;
Circumstances under slander defamation
Imputation of a criminal conduct where a defendant accuses the plaintiff of a criminal
conduct punishable by imprisonment (most probably not a traffic offence). In Groom
V Crooker [1939] 1KB 194 it was held that there was no need of proof of
damage needed for the solicitor had any criminal record on him. It should however be
noted that words which express suspicion cannot be actionable per se.
Imputation on a plaintiff that they are unfit to run a business. Section 2 of the
defamation act1952 stated that words said to discourage the plaintiff in any office,
vocation or profession.in this case it applies to comments directed at a specific profession
in tasks like accusing a boss of a given firm to have an affair with an employee so can
affect how they are going to perform their duties and obligations. In Berkoff V
Burchill (1996) 4 ALLER a well-known journalist made remarks about Steven
Berkoff an actor and director saying that the film director was a notorious hideous
looking person like a monster comparing the monsters appearance with him and could
not manage the acting. Court held that the words were defamatory for they the plaintiff
up to contempt, scorn and ridicule.
Imputation of a contagious disease though this rule is largely out dated but very
significant. When someone is imputed that they have a contagious disease it can lead to
job loss, social exclusions of that person from society in instances like one being imputed
HIV or AIDS or Ebola such a person will have a such a slander defamation actionable
per se for it holds them up to contempt and lowers their self-esteem.
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Imputation of unchastely most especially on women specifically on adultery and
fornication. When a woman imputed in such a manner they are taken as prostitutes in
society and their reputation will be damaged there by lowering their self-esteem. Such
slander is actionable per se.
For defamation to succeed the plaintiff must prove that the following;
ELEMENTS OF DEFAMATION
1. That the statement was a defamatory one injuring a person’s reputation by exposing him
or her to hatred, contempt, and ridicule in society. In Houlton V Jones an article in
newspapers stated that one jones was having an extra marital affair yet he was married
court held that this was a defamatory statement affecting his reputation in society which
knew him as a married man. The court has to determine whether the written or spoken
words were defamatory as a matter of law. If court was in doubt because connotation of
the written/spoken words was ambiguous, then the court had to submit the question to
jury to decide.
2. That the statement was referred to the plaintiff and that it was injurious since the whole
point of defamation law is to take care of injures to reputation, the plaintiff must show it
was aimed at them and their reputation were hurt by the full statement in instances like
losing out on work, rejection by relatives and friends. Someone who already had a
terrible reputation most likely will not collect much in such a suit. If the statement was
made to a group of persons (group defamation) then only one of them can sue for
defamation representing the rest i.e. like doctors in Mulago killed a patient, it would be
one of them to represent the rest in filing the suit.
3. That the statement must be published i.e. the third party other than the plaintiff must have
attained access to the defamatory statement. Publishing not only refers to printing
statements in books or newspapers but also other ways likes televising, art and rumors.
It is from this that the onus will shift to the defendant to prove not liable through claims of;
Unintentional defamation
Consent
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The available defenses for the defendant in such circumstances are;
The truth or justification can justify the defamatory comment by proving it’s the truth. In
Sutherland V Stopes [1925] AC 47, the statement must be true in substance and fact
so as long as the statement is substantially true but not completely true the defense will succeed.
If using a rumor that the defendant uses another person’s beliefs or suspicions as the foundation
of his defense, he can only rely on justification if the underlying facts were true. It is no defense
to say that what he was repeating is what he or she had heard.
A Fair comment on a matter in the public interest is a full defense like justification. This is a
particular useful defense, however this defense only applies to expression of the opinion (like I
think…., the truth is …) although the difference between these can sometimes be hard to
determine.
Privileges is another defense in certain situations the night to free speech becomes more
important than the right not to be defamed, there are two types of privileges viz absolute
privileged and qualified privileges. In Absolute privileges is where there complete freedom of
information is needed it can witnessed statements made in parliament, statements in judicial
proceedings ,fair and accurate reports of judicial proceedings, communication by a minister of
other officer of the state to another in the course of duty and Qualified privileges is when the
need for freedom is slightly lower. At common law where a person who makes a
communication has an interest or duty to the person To Whom It May Concern and the person
has the corresponding interest or duty to receive. The burden of proving privilege is on the
defendant but the plaintiff may defeat malice however he or she must show malice by clear and
convincing proof.
Remedies to the Defamed Party
Application to the court for injunction to stop the comment being published if the plaintiff
discovered that discovered that some defamatory comment will is being published or will be
published in the future or a permanent injunction, to prevent any republications as well as
damages, as seen as Karitas Karisimbi V Red pepper Uganda (2004) where
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the court granted permanent injunctions to the plaintiff to stop publication of the defaming
statements.
In conclusion it should be noted that defamation is mainly of two types namely slander and libel
but only libel is actionable per se while slander is not actionable per se with exception of a few
circumstances where it becomes actionable that is one has to prove special damages.
SAMPLE QUESTION ON DEFAMATION
QUESTION ONE
Distinguish libel and slander with relevant authorities and discuss the relevance of the law of
defamation today?
QUESTION TWO
Discuss all the elements that one must show to prove defamation?
QUESTION THREE
Explain the meaning of the phrase ‘’libel’’ and “Slander” as applied in defamation with all their ingredients?
UNIT SIX: LIABILITY FOR FIRE & DANGEROUS PREMISES
Unit Contents
Liability for Fire
i) Origin of the principle governing liability for fire
ii) Scope of the principle
iii) Protection under the Fire Prevention (Metropolis) Act, 1774
iv) Position under common law
v) Defences available under the rule
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Dangerous Premises
i) Persons under the principle
ii) Position of a Licencee
iii) Position of an Invitee
iv) Position of a Trespasser
v) Defences
Learning Out Comes
By the end of this unit, participants are expected to;
a) Explain the principles governing liability for fire under common law jurisdiction;
b) Know the available remedies under the rule;
c) Know the different defences under the rule;
d) Explain the principle governing dangerous animals;
e) Know the different persons or parties under the principle; and
f) Know the remedies and defences available under the principle.
INTRODUCTIONLIABILITY FOR FIRE
Prior to the case of Rylands vs. Fletcher, it was already established that a person was
liable for the escape of fire and, therefore, the owner of the fire was bound to keep it in at his
peril. The situation has however now been brought within the scope of the rule in Rylands
vs. Fletcher and liability is now dependent on the same principles as have just been
discussed.
It is noted however that no action is maintainable against any person in whose building or on
whose estate a fire begins accidentally. This does not mean that a person is absolved from any
liability for accidental fire whether resulting from negligence or not. The judicial view is that a
person will be liable for the fires caused by his negligence. In England, for instance, it has been
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held that the Fire Prevention (Metropolis) Act, 1774, confers no protection even if the fire begins
without negligence that is “accidentally”…provided that the spread of it which caused the
damage was due to negligence.1
It should be noted that in many cases the rule in Rylands vs. Fletcher will not impose
liability because the fire will have been lit in natural user of the land. The defendant will
however be liable if he is negligent.
Salim Omari vs. Jackson Ongea Civil Appeal No. 2 of 1971
Facts:
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 the strong winds. Was the respondent liable?
Held:
i) The learned Resident Magistrate relied on a passage by Biron Ag. C.J. in
Rehutulla vs. The Commissioner of Transport2: which reads as follows:
“It is, I consider well established in law that to hold an
occupier of premises liable in damages for the fire
breaking out of such premises, there must be established
negligence on his part”.
1 Musporve vs. Panlelis (1919). 2. KB. 43.2 (1969) H.C.R. No. 293
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This statement of law was induced by the Fire Prevention (Metropolis) Act, 1774 which
provided that “no action, suit or process whatsoever shall be entertained or prosecuted against
any person on whose house chamber, stable, barn on other building or whose estate any fire shall
accidentally begin.
Position under Common Law
Under Common Law a person was bound to make good any damage caused by a fire which
started on his premises and moved to another. The act quoted above restricted this absolute
liability only in so far as was accidental i.e. produced merely by chance or where the cause could
not be traced. The passage in the judgement cited above was not a comprehensive statement of
the law. The rule in Ryland vs. Fletcher still applies. There Blackburn J said;
“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 it escapes must
keep it at his own peril, and if he does not do so, is prima
facie answerable for all the damage which is the natural
consequence of its escape”.
There are exceptions to the rule in the case where the damage is caused by an act of God, default
of the plaintiff or an act of a third party or statutory authority. Subject to these exceptions if an
occupier of lands starts a fire intentionally or by negligence, he is under a duty at his peril to
prevent it from doing damage to others.
In this case, what was set as a defence was that the damage is caused by an act of God in that
reasonable precautions were taken to confine the fire to the respondent’s land but it was blown
into the adjoining shamba. There was no evidence to show what the intensity of the wind was or
that it was anything in the nature of a storm. An ordinary high wind is something quite usual or
natural and the precautions taken should have been such as to anticipate a high wind. I consider
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with the due respect to the trial magistrate that the circumstances did not show an Act of God as
would absolve the respondent from liability. He was negligent in that he did not guard against a
foreseeable eventuality and for this reason I allow the appeal.
Abdullah Ramadhani vs. Asinate Kinomwe Civil Appeal No. 103 of
1967 (Tanzania High Court)
Facts:
The plaintiff brought an action for damage to his crop by the spread of fire from the defendant’s
shamba to the plaintiff’s land. In prior criminal proceedings the defendant had been found guilty
of having set fire to crops and was fined. The defendant appealed against criminal conviction
which was quashed because it had not been proved that the defendant had willfully and
unlawfully set fire to crops as required by S.32 of the Penal Code.
Held:
1. The Civil action was not extinguished by the successful appeal in a criminal proceeding,
for the basis of liability is different.
2. In regard to civil liability the court stated;
“If a person starts fire on his shamba and it spreads
into somebody else’s shamba of course he cannot plead
that it was merely bad lack. It is necessary for a person
who stars fire in his shamba, to control, it and if he
cannot or does not control it, and it spreads into
somebody else’s shamba he must pay compensation for
the damage he has done”.
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Ruhutulla Badeli vs. The Commissioner of Transport, The East
African Railway and Harbours Civil Case No. 157 of 1967 (Tanzania
High Court)
Facts:
By a lease entered into in or about March, 1996, the plaintiff demised to the administration
premises situated at Vwawa. The premises were destroyed by fire on 27th November, 1996 and
the plaintiff sued for damages in tort.
HELD:
Biron, Ag, C.J. noted that;
“It is I think not disputed that the law in this country with
regard to liability for fire is the same as in England as
provided for in S.2 (2) and S.2 (2)… Although the law in
England regarding liability for fire was at one time
absolute, since the passing of the Fire Prevention
(Metropolis) Act 1774 which extends to the whole
country” no action, suit or process whatsoever shall be
entertained or prosecuted against any person in whose
estate any fire shall accidentally begin”.
Without citing any authority it is well established that responsibility for damage will not lie
unless negligence has been established. I consider that it is now well established that in cases of
fire the doctrine of res ipsa loquitor (so as to render the occupier of the premises where a fire
breaks out liable) without any further proof of negligence will not apply. Without indulging in an
academic exercise as to how fire can and do break out, it is, I consider will established in law
that for an occupier of premises to be liable in damage for fire breaking out on such premises,
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Collingwood vs. Home & Colonial Stores (1936). 155. L.T. 550
Facts:
A fire broke out in the defendant’s premises as a result of the defective condition of the electrical
wiring and spread to the premises of the plaintiff.
Held:
The defendant could claim the protection of the statute because they had not been negligent; nor
was Rylands vs. Fletcher rule applicable; for the installation of electric wiring was a reasonable
and natural user of premises.
Balfour vs. Darty Kin (1957). 1. QB. 496. C.A
Facts:
The pipes in the defendant’s flat were frozen and an independent contractor was employed to
thaw them. He applied a blow lamp to the pipes which were partly covered with felt. The felt
caught fire and the fire spread rapidly to the plaintiff’s house and caused considerable damage.
Held:
I. The independent contractor was negligent; and
II. A house holder is liable for the escape of fire from his premises due to negligence of an
independent contractor and the defendant was, therefore, liable.
Again, if a person who, without statutory authority brings fire into dangerous proximity to
another’s land, he does so at his peril, and is liable if it does damage whether he has been
negligent or not. Thus where the defendant, without statutory authority used a steam engine on a
highway, it was held that the defendant was liable for the damage resulting from the escape of
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sparks, a part from negligence.3 But railway companies acting under statutory authority are
generally liable only for fires caused by their negligence.
DANGEROUS PREMISES
While discussing nuisance, we noted that the occupier of the premises is liable in nuisance if,
owing to the defective state of those premises, injury is caused to persons on adjoining land or on
the highway. In the present discussion we shall now consider the liability of the occupier of the
premises to persons who suffer injury by reason of the defective or dangerous state of the
premises to persons who suffer injury by reason of the defective or dangerous state of the
premises while such persons are actually on the premises themselves. These persons fall into the
following categories:
a) Persons coming by permission, solely of their own choice, and on their own business
(examples licencees and guests).
b) Persons induced to come on business and interest of the occupant alone, or of themselves
and the occupant (examples invitees, customers).
c) Persons entering into premises without permission (example trespassers).
LICENCEE
A licencee is a person who enters on premises under a licence expressed or implied, from the
occupier. For example, a guest at a house is a licencee. Similar persons who enter premises to
solicit orders, or to beg, to hold any communication with the occupier are licencees.
When a licencee is injured on land occupied by the licensor he can only maintain an action
against his licensor when the danger through which he has sustained injury was one which the
licensor knew but of which the licencee was unaware. The licensor knows of the danger if he
knows that there is present a physical object capable of being put in a dangerous condition by the
action of third persons who are likely to act in such a way as to put it in a dangerous condition.
3 James vs. Festining Rail Co. L.R. 3 Q.B. 733PREPARED BY Mr. OKIYA JIMMY JANSKY
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And this is so, although the licensor could not know, and did not foresee, the precise manner in
which the dangerous condition would translate itself into an actual casualty.4
If however, the danger is obvious, the licensee must look out for himself. It is one to be expected,
he must expect and take his own precautions.5 (Mersy Dooks and Hariour Board Vs
Procter (1923) A.C.253).
But the occupier must not create new traps without taking precautions to protect the licencees
against them. For instance, a person who knows that the public are going over his ground is not
entitled, without warning or notice to put a dangerous beast which is likely to do some injury to
persons crossing the grounds. (Lowry Vs Walker (1911) A.C.1014).
(b) INVITEE
An invitee is a person who is on the premises for some purpose in which he and the occupier
have a common interest. For instance, an intending customer entering a shop is an invitee.
The distinction between an invitee and a licencee is that the invitor and the invitee have a
common interest, but the licensor and the licencee have none. Those who are invited as guests
whether from benevolence or for social reasons, are not in law invitees but licencees. The law
does not take account of the worldly advantages which the host may remotely have in view.
The duty of an invitor is to prevent damage to an invitee from unusual danger. If an invitee
acting reasonably and exercising due care for his own safety, does not appreciate the existence of
the danger, or its nature, it will be to him an unusual danger.6 The invitor is liable for damage
caused to the invitee by reason of the existence of a trap of which the invitor knew or ought to
have known about. It is not necessary, however that the danger which caused the accident to the
invitee should be hidden. The invitor may still be liable to the invitee for a danger of which the
4 Pearson Vs Lambeth Borough Council (1950) 2 KB 3555 Lathan Vs R. Johnson & Nephew Ltd. (1913) 1 KB 399.
6 Horton Vs London Graving Dock Co. Ltd (1949) K.B 584PREPARED BY Mr. OKIYA JIMMY JANSKY
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invitee was aware, but which he could not avoid by the exercise of reasonable care on his part,
unless the invitor can prove that the invitee was not only aware of it but voluntarily accepted the
risk.7
Invitees may be divided in two categories:
a) Those who do not pay for their presence on the premises; and
b) Those who are on the premise on payment.
Persons falling under category (a) are entitled to expect, (using reasonable care on their part for
their own safety) that the occupier shall on his part use reasonable care to prevent damage from
unusual danger, which he knows or ought to know. The duty is limited to those places to which
the invitee might reasonably be expected to go in the belief reasonably entertained, that he was
entitled or invited to do so.
With regard to the persons falling under category (b) there the occupier of premises agrees for
reward that a person shall have the right to enter and use them for a mutual contemplated
purpose, the contract between the parties contained in an implied warranty that the premises are
safe for that purpose as reasonable care or skill on the part of any one can make them.
In England, the liability of the occupier towards persons entering into his property is now
governed by the occupier’s Liability Act, 1957. The Act has abolished the distinction between
the two categories “licencees” and “invitees”: they all are “visitors.” A visitor may be defined as
anyone who has the express or implied permission of the occupier to be on the premise. For
example, a guest to dinner is in house with the express permission of the host purpose of which
he has been invited. He is not invited to use any part of the premises for the purposes which he
knows are wrongly dangerous and constitute an improper use. The plaintiff entered the premises
7 Ibid.
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as an invitee but became a trespasser at the time of his fall into the ditch because he had started
to do his own acts.
Lowery Vs Smaller (1911) A.C 10.
Facts:
The defendant turned a savage horse into a field of which he was the occupier and which to his
knowledge, members of the public habitually used on their way to a station. The defendant had
verbally objected to this use by the public and at one time had put up a “No Trespassers” sign but
had taken no more effective measure because some members of the public were his customers.
The plaintiff was attached, bitten and stamped on by the horse.
Held:
The plaintiff the defendant’s implied permission to go across the field and so could recover.
Ashdown vs. Samuel Williams & Sons Ltd (1957)1 QB 409.)
Facts:
In a dock area there were a number of railway sidings. A notice declared that “every person
whilst on the said property is there entirely at his own risk” and then went on to amplify that
warning at some length. The plaintiff was lawfully on the property; was in a position of “visitor”
and was injured by the defendant’s shunting operations which were admittedly negligent.
Held:
The plaintiff having been warned, the defendants were absolved from liability for their
negligence.
© TRESPASSER
A trespasser is a person who goes on the land of another without permission of any sort and
whose presence is either unknown to the occupier, or, if it is known, is objected to. It would thus
seem that no one is trespasser who enters by authority of law, by permission of the occupier
(express or implied) or by the occupier’s acquiescence in continued acts of trespass.
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The duty of an occupier towards a trespasser comes lowest in the scale. The general principle is
that he who enters wrongly does so at his own risk. But a trespasser is not entirely without right
and the general rule is subject to the qualification that the occupier must not;
a) Do any act which is calculated to injure the trespasser or
b) Do any act which if done carelessly must reasonably be contemplated as likely to injure
him.
Thus 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 by the occupier with the object of injuring
trespassers. On the other hand, if a trespasser is injured merely by some concealed danger on the
premises or by some reasonable method of protection of the premises (e.g. broken glass along
the top of a wall; an ordinary house dog) he will have no right of redress. Moreover it is not the
duty of the occupier to look out for the possibility of the existence of a trespasser on his land. He
may, for example, go shooting on his land without previously searching for trespassers who
might be wounded.
Mounton vs. Poulter, (1930) K.B 185)
Facts:
The defendant, a nursery man, was felling an elm tree for the occupier of land. Knowing that the
tree is about to fall and did not repeat the warning he had previously given to children to go away
and the tree fell and injured the plaintiff aged ten. Held: The defendant was liable, even though
the plaintiff was a trespasser, for he had acted in reckless disregard of the plaintiff’s presence.
Hardy Vs Central London Rly. (1920).3 K.B 459.
Facts:
The plaintiff, a child, was injured on the moving stair case of an underground railway. Children
were in the habit of playing on the staircase but were driven away by station officials whenever
they were seen by them. Held: the plaintiff was a trespasser and could not recover.
5. Act of God
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An act of God is an event which 'no human foresight can provide against, and of which human
prudence is not bound to recognise the possibility' (per Lord Westbury, Tennent v
Earl of Glasgow (1864) 2 M (HL) 22 at 26-27). Nichols v Marsland
(1876) 2 ExD 1: Exceptionally heavy rain caused artificial lakes, bridges and waterways to
be flooded and damage adjoining land. The D was not liable.
6. Default of the claimant
If the escape is the fault of the claimant there will be no liability. Alternatively, there may be
contributory negligence on the part of the claimant.
SAMPLE QUESTION ON LIABILITY FOR FIRE AND DANGEROUS PREMISES
QUESTION ONE
Discuss the origin of the principle of liability for fire and dangerous premises?
QUESTION TWO
Discuss the scope of the principle of liability for fire and dangerous premises?
QUESTION THREE
Discuss the common law standing on the principle of liability for fire and dangerous premises?
UNIT SEVEN: PRINCIPLES GOVERNING THE AWARD OF
DAMAGES IN CIVIL CASES
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Unit Contents
vi) Working definition
vii)Classification of damages
viii) Rules and Principles in awarding damages
ix) Application in tort
x) Remoteness
xi) Application in contract
xii)Aggravation and mitigation of damages
xiii) Aggravation in tort
xiv) Mitigation in tort
xv) Contribution and apportionment
xvi) Distinct rules for measure of damages in contract and tort
xvii) Appeals
xviii) Recommendations on practice and procedure
Learning Out Comes
By the end of this unit, participants are expected to know;
a) the legal definition of damages;
b) the different classification of damages;
c) the rules and principles governing the award of damages;
d) how to ascertain damages;
e) the application of the rules in contract and tort;
f) how damages become remote;
g) the principles governing mitigation of damages in tort and contract;
h) how damages are apportioned;
i) the distinct rules for measure of damages in contract and tort;
j) how these principles are applied in pleadings and practice;
k) how damages are proved; and
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l) Come up with the necessary recommendations on the law governing award of damages in
civil cases.
INTRODUCTION
DEFINITION AND CLASSIFICATION OF DAMAGES
I. DEFINITION OF DAMAGES
1. Damages are the pecuniary recompense given by process of law to a person for the
actionable wrong that another has done him.8 Lord Greene MR, in Hall
Brothers SS Co. Ltd V. Young9 defined the term damages thus:
“Damages’ to an English lawyer imports this idea,
that the sums payable by way of damages are sums
which fall to be paid by reason of some breach of duty
or obligation, whether that duty or obligation is
imposed by contract, by the general law, or
legislation.”
Indeed, this is the way damages are broadly appreciated in most jurisdictions in the
Commonwealth, including Uganda.
2. Damages are, in their fundamental character, compensatory, not punishment. Whether the
matter complained of is a breach of contract or tort, the primary function of damages is to
place the plaintiff in as good a position, so far as money can do it, as if the matter
8 12 Halsbury’s Law (4th edn) Para 12029 [1939] I KB748, at 756 (CA).
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complained of had not occurred. As we shall see later, this primary notion is controlled
and limited by various considerations, but the central idea remains compensation.
Accordingly, damages are usually measured by the material loss suffered by the
plaintiffs. As a general rule, the plaintiff must not receive more, nor should he receive
less than the appropriate measure of damages commensurate with his or her ‘material
losses.
3. However, in certain circumstances, the court may award more than the normal measure
of damages, by taking into account the defendant’s motives or conduct, and in this case
the damages may be ‘aggravated damages’ which are compensatory or ‘exemplary
damages’ which are punitive.10 We shall return to this distinction later.
4. A statute may create a civil action for damages directly, and may also define the criteria
for the assessment of damages. By statute, common law remedies may be excluded or
limited, or a limit may be put on the damages recoverable.11 Examples of such statutes in
Uganda include the Law Reform (Miscellaneous Provisions) Act, Cap
79; the Employment Act12 2006, National Environment Act13,
Cap 153; Occupation Safety and Health Act14 2006; and
Workers Compensation Act, Cap 225. In this context, damages may be
referred to as ‘statutory damages’.
CLASSIFICATION OF DAMAGES
10 12 Halsbury’s Law (4th edn) para 111211 12 Halsbury’s Law (4th edn) Para 111512 See for instance 66 (4), 67 (4), 70 (3), 78, 79, 87, 88, 89, 90, 92, and 96 (4) of the Employment Act, 2006.13 See for instance, s. 67 of the National Environment Act, which enables the award of compensation on an environmental restoration order.14See for instance s. 102 of the Occupational Safety and Health Act which enables the application of a statutory penalty to the compensation of the victim of a statutory offence.
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1. Generally speaking, there are three kinds of damages: general damages, special damages
and nominal damages.
General and special damages
2. General damages, according to Lord Macnaghten in the oft-cited case of
Storms V. Hutchinson 1905 AC 51515, are such as the law will presume to
be the direct natural or probable consequence of the act complained of. Special damages,
on the other hand, are such as the law will not infer from the nature of the act. They do
not follow in the ordinary course. They are exceptional in their character, and, therefore,
they must be claimed specially and proved strictly.
3. Indeed, because of their peculiar nature, the law requires a plaintiff to give warning in his
pleadings of the items constituting his claim for special damages with sufficient
specificity in order that there may be no surprise at the trial. See Musoke V.
Departed Asians Custodian Board [1990- 1994] EA 219; Uganda
Telecom V. Tanzania Corporation [2005] EA 351; Mutekanga V.
Equator Growers (U) Ltd [1995-1998] 2 EA 219; Uganda
Breweries Ltd. V. Uganda Railways Corporation Supreme Court
Civil Appeal No. 6 of 2001 (unreported).
4. In current usage; ‘special damages’ relate to past pecuniary loss calculable at the date of
trial, whilst ‘general damages’ relate to all other items of damage whether pecuniary or
non-pecuniary. Thus in a personal injuries claim, special damages encompass past
expenses and loss of earnings, whilst ‘general damages’ will include anticipated future
loss as well as damages for pain and suffering and loss of amenity.16 See Uganda
Commercial Bank V. Deo Kigozi [2002] 1 EA 293.
15 [1905] AC 515 16 12 Halsbury’s Laws of England (4th edn) Para 1113
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5. In other words, special damages, both in the law of contract and tort, denote the damages
arising out of the special circumstances of the case which, if properly pleaded, may be
superadded to the general damages which the law implies in every breach of contract and
every infringement of an absolute right.17
6. It is important to note that he term ‘special damage’ is sometimes used in actions on the
case brought for a public nuisance, such as an obstruction of a river or highway, to denote
the actual and particular loss which the plaintiff must allege and prove beyond what is
sustained by the general public.18.
Nominal Damages
7. Nominal damages have been famously referred to as a mere peg on which to hand costs.
According to Maule J. in Beaumont V. Great head19, nominal damages, in
fact, mean a sum of money that may be spoken of, but that has no existence in point of
quantity. For instance, where the seller brings an action for the non-acceptance of goods,
the price of which has risen since the contract was made. In practice, a small sum of
money is awarded; say one dollar or its equivalent.
8. However, nominal damages must be distinguished from, small or contemptuous damages,
which indicate the court’s opinion that the action ought not to have been brought.20 This
distinction is borne out by Njareketa V. Director of Medical Services
Mulago [1950] 17 EACA 6021 where Sir Barclay Nihill C. J. reduced a
17 Ashby V. White [1703] 2 Ld Raym 93618Ratcliffe V. Evans [1892] 2 Q B 524 at 528, 529, (CA). See also Byabazaire V. Mukwano Industries (unreported).19 (1846) 2 CB 494; 135 ER 1039.2012 Halsbury’s Laws of England (4th edn) Para 1112 21[1950] 17 EACA 60. The appellant, a patient of 24, had a malignant growth on his leg: it was found necessary to amputate his leg to save his life; the patient at first consented but afterwards withdrew his consent. The second defendant, a government surgeon, went on to perform the life-saving medical operation and the plaintiff successfully brought an action in
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substantial award that the trial judge had made in favor of the appellant and termed as “
merely nominal damages” to one cent and set aside the learned trial judge’s order as to
costs. The facts of that case provide room for interesting reading.
9. There is a great deal of confusion on this point, and for clarification, we can quote from
the famous passage of Lord Halsbury L.C in The Medina [1900] AC 11322.
“Nominal damages’ is a technical phrase, which means
that you have negatived anything like real damage,
but that you are affirming by your real damage that
there is an infraction of a legal right, which, though it
gives you no right to any real damages at all, yet
gives you a right to the verdict or judgement because
your legal right has been infringed. But the term
‘nominal damages’ does not mean small damages.”
(emphasis added).
the High Court of Uganda against the defendants for damages arising out of the trespass committed to his person calculated at 30,000/=. The trial judge awarded the plaintiff what he termed as ‘nominal damages’ in addition to costs against the defendants. The appellant appealed for a larger quantum of damages and the defendants cross appealed on the issue of damages. Held, but for the action of the second defendant, the appellant’s children would now be fatherless and his wife a widow. Instead of expressing gratitude to the second defendant he is now pressing for payment by the second defendant for injury done to him…What timority! He has in fact suffered no damage by reason of the trespass. This being the case we think the damages fixed by the learned trial judge, although he regarded them as merely nominal, are in fact high taking into regard the class and community from which the appellant comes… it is not due to our lack of compassion for the appellant to the realization that it is necessary to protect the government medical department and all surgeons from unscrupulous claims of this nature that we reduce the nominal damages awarded to the appellant to one cent and set aside the learned judge’s order as to costs. The appellant may certainly be a fit subject for charitable assistance but he is entitled to nothing in law, and he should never have brought this action. 22The Medina [1900] AC 113: [1900 – 3] ALL.ER Rep 126.
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10. Thus, a plaintiff in an action for wrongful deprivation may recover substantial damages
for the deprivation, though he may have incurred no out-of pocket expenses consequent
thereon. By way of conclusion on this point, it may be appropriate to quote again from
Lord Halsbury:
“A plaintiff is entitled to ‘nominal damages’ where;
a)His rights have been infringed, but has not in fact
sustained any actual damage from the infringement,
or he fails to prove that he has; or
b)Although he has sustained actual damage, the
damage arises not from the defendant’s wrongful act
but from the conduct of the plaintiff himself; or
c) The plaintiff is not concerned to raise the question of
actual loss, but brings his action simply with the view
of establishing his right.”23
Exemplary damages
11. A keen reader of our law reports will soon observe that litigation lawyers in Uganda have
a strange obsession for exemplary damages yet very few actually understand the nature
and essence of this kind of damages. They will jump at every opportunity to declare in
their plaints. “We want exemplary damages, My Lord.” Mercifully for their adversaries,
2312 Halsbury’s Law (4th edn) Para 1114 PREPARED BY Mr. OKIYA JIMMY JANSKY
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the courts of judicature do not at all share the lawyers’ enthusiasm and have, in fact,
safely avoided setting a dangerous precedent24.
12. But what exactly are exemplary damages? The dictum of McCardie J. in
Butterworth V. Butterworth [1920] P 12625 is as helpful today as it was
the past century:
“Simply put, the expression exemplary damages mean
damages for ‘example’s sake’. These kinds of damages
are clearly punitive or exemplary in nature. They
represent a sum of money of a penal nature in addition
to the compensatory damages given for the pecuniary
or physical and mental suffering.”
13. The award of exemplary damages was considered by the House of Lords in the landmark
case of Rookes V. Barnard26. Lord Devlin stated that in his view there are only
three categories of cases in which exemplary damages are awarded, namely:
a) Where there has been oppressive, arbitrary, or unconstitutional action by the
servants of the government, and
b) Where the defendant’s conduct has been calculated by him to make a profit
which may well exceed the compensation payable to the plaintiff, and
24Except for the dicta in Sin… V. Ankole District Administration Civil Suit No. 463 of 1969 which were based on the dissent of other Commonwealth courts with respect to the principles formulated in Rookes V. Barnard [1964] All ER 367. See E. Vietch, The Law of Tort in East Africa, PP. 252- 253 for the commentary on this odd case.25Butterworth V. Butterworth & Englefield [1920] P 126. 26 [1964] All ER 367 AT 410-411. In some courts within the Commonwealth, there have been some criticisms of the principles formulated by the House of Lords in Rookes V. Barnard. See for example Austrian Consolidated Press Ltd V. Uren [1967] 3 All ER 523, PC.
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c) That some law for the time being in force authorises the award of exemplary
damages.
Furthermore, according to Lord Devlin in Rookes V. Barnard, above when
considering the making of an award of exemplary damages, three matters should be
borne in mind:
a) Plaintiff cannot recover exemplary damages unless he or she is the victim of
punishable behavior ;
b) The power to award exemplary damages should be used with restraint; and
c) The means of the parties are material in the assessment of exemplary damages.
14. It has been held in two cases, Kiwanuka V. Attorney General (Uganda)27,
and Visram & Karsan V. Bhatt28, by the Court of Appeal for Eastern Africa that
the dicta of the House of Lords in Rookes V. Barnard, above, accurately stated the
law of East Africa with respect to exemplary damages. The principles formulated in
Rookes V. Barnard, above, were also endorsed by Spry VP of the East Africa
Court of Appeal in the oft-cited case of Obongo & Another V. Municipal
Council of Kisumu [1971] EA 91; by the High Court of Uganda in following
cases: Ongom & Another V. Attorney-General [1979] HCB 267;
Kyambadde V. Mpigi District Administration [1983] HCB 44;
Nsaba Buturo V. Munnansi Newspaper [1982) HCB 134,
Ntabgoba V. Editor- in-chief of the New Vision & Another
[2004] 2 EA 234; Bhadelia Habib Ltd V. Commissioner General,
URA [1997-2001] UCL 202; and most recently by the Supreme Court of Uganda
27 EACA No. 19 of 1965 (CA)28[1965] EA 789
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in the landmark case of Fredrick J. K. Zaabwe V. Orient Bank & Others
Supreme Court Civil Appeal No. 4 of 2006 (unreported).
15. In all the cases referred to above, the court was firmly aware of the nature of exemplary
damages and when they should be awarded. By way of emphasis, however, we need to
restate here the rationale behind the award of exemplary damages: exemplary damages
should not be used to enrich the plaintiff, but to punish the defendant and deter him from
repeating his conduct.
16. It is a considered view that in an action where an outrage has been committed against the
plaintiff by the defendant and the court forms the opinion that it should give punitive
damages to register its disapproval of the wanton and willful disregard of the law, it is
entirely proper to award exemplary damages in addition to general damages and special
damages, if any.29 However, an award of exemplary damages should not be excessive.
The punishment imposed must not exceed what would be likely to have been imposed in
criminal proceedings, if the conduct were criminal.30 All circumstances of the case must
be taken into account, including the behaviour of the plaintiff and whether the defendant
had been provoked.31 For instance, although abuse of police powers should almost
always attract exemplary damages, this is by no means a statement of an independent
principle. Litigation lawyers would, of course, disagree
AGGRAVATED DAMAGES
17. There is a thin line between exemplary damages and aggravated damages, and as a result,
there has arisen a lot of confusion of thought in this area. But actually the two concepts
are different, as the supreme court of Uganda recently explained in the landmark case of
29See for instance London V. Ryder [1953] I All ER 741, where the court utilized the award of exemplary damages to teach a defendant who had acted with a cynical disregard of the plaintiff’s rights a lesson that “a tort does not pay.”30Per Spry V.P. in Obongo & Another V. Municipal Council of Kisumu [1971] EA 91 31See O’Connor V. Hewiston [1879] Crim LR 46, CA; Archer V. Brown [1985] QB 401
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Fredrick J. K. Zaabwe V. Orient Bank & Others Supreme Court
Civil Appeal No. 4 of 2006 (unreported.32
18. Aggravated damages are “extra compensation to a plaintiff for injury to his feelings and
dignity caused by the manner in which the defendant acted. Exemplary damages, on the
other hand, are damages, which in certain circumstances only, are allowed to punish a
32“With regard to exemplary damages, the appellant seems to equate them with aggravated damages. SPRY, V.P. explained the difference succinctly in OBONGO -VS- KISUMU MUNICIPAL COUNCIL [1971] EA 91, at Page 96; “The distinction is not always easy to see and is to some extent an unreal one. It is well established that when damages are at large and a court is making a general award, it may take into account factors such as malice or arrogance on the part of the defendant and this injury suffered by the plaintiff, as for example, by causing him humiliation or distress. Damages enhanced on account of such aggravation are regarded as still being essentially compensatory in nature. On the other hand, exemplary damages are completely outside the field of compensation and, although the benefit goes to the person who was wronged, their object is entirely punitive.”In the circumstances of this case, as discussed in this judgement, I do not think this is a case that qualifies for an award of exemplary damages as envisaged in ROOKES –VS- BARNARD AND OTHERS [1964] AC 1129, which is very well considered by SPRY – VP in his judgment in the Obongo case (supra) at Page 94. The gist of those exemplary damages may be awarded in this class of case. In the words of SPRY, V.P. at P.94 these are: “first, where there is oppressive, arbitrary or unconstitutional action by the servants of the government and, secondly, where the defendant’s conduct was calculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff. As regards the actual award, the plaintiff must have suffered as a result of the punishable behaviour; the punishment imposed must not exceed what would be likely to have been imposed in criminal proceedings if the conduct is to be taken into account. It will be seen that the House took the firm view that exemplary damages are penal, not consolatory as had sometimes been suggested.” It has to be borne in mind that the respondents were private persons and not acting on behalf of any government or authority. I think this is a case where the appellant should receive enhanced compensatory damages not only for the unwarranted and wrongful deprivation of his property, but also because of the conduct and apparent arrogance of the respondents. In my view, this is not the type of case where the respondents are likely to repeat their wrongs on the appellant. In considering an award of enhanced or substantial general damages, one must take into account the station in life of the appellant. He is a senior lawyer and a respected member of society. He has a family who all lived on the property from which they were wrongfully evicted. Part of the property was used as offices for his law chambers. The appellant testified that as a result of this eviction, he had to find alternative accommodation for his family. He lost not only some of his books and files but also his clients. His livelihood as a lawyer was compromised. He suffered much humiliation and distress. He has since been denied use of his property for the period of about 10 years. The appellant had made a total claim for Shs. 307,000,000/=, I am of the view that this is a case where substantial damages should be awarded. Given the circumstances of this case, I would award to the appellant Shs. 200,000,000/= (two hundred million) as aggravated damages. Per Katureebe JSC, who delivered the opinion of the Court.
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defendant for his conduct in inflicting the harm complained of.”33 For the distinction
between these two species of damages, see also the following cases: Obongo &
Another V. Municipal Council of Kisumu [1971] EA 91; Ongom &
Another V. Attorney-General [1979] HCB 267; Kyambadde V.
Mpigi District Administration [1983] HCB 44; Nsaba Buturo V.
Munnansi Newspaper [1982] HCB 134; Ntabgoba V. Editor-in-
chief of the New Vision & Another [2004] 2 EA 234; Bhadelia
Habib Ltd. V. Commissioner General, URA [1997-2001] UCL
202; Ahmed Ibrahim Bholm V. Car & General Ltd Supreme
Court Civil Appeal No. 12 of 2002.
19. For a finer distinction between exemplary damages and aggravated damages, it is
appropriate again to refer the famous passage of Lord Devlin in the landmark case of
Rookes V. Barnard, above:
“English law recognized the awarding of exemplary
damages, that is, damages whose object was to punish or
deter and which were distinct from aggravating damages
(whereby the motives and conduct of the defendant
aggravating the injury to plaintiff would be taken into
account in assessing compensatory damages)… The fact
that the injury to the plaintiff has been aggravated by the
malice or by the manner of doing the injury, that is, the
insolence or arrogance by which it is accompanied, is not
justification for an award of exemplary damages;
33Per McCarth J. in Huljich V. Hall [1973] 2 NZLR 279 at 287; a case from New Zealand. PREPARED BY Mr. OKIYA JIMMY JANSKY
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aggravated damages can do in this type of case what
otherwise could be done by exemplary damages.”
20. From the foregoing, it is imperative that we need to comprehend the distinction between
aggravated damages and exemplary damages. Aggravated damages are, by their nature,
intended to compensate the plaintiff whereas exemplary damages are, by their nature,
intended to punish the defendant.34
21. When is it proper to award aggravated damages? The short answer is when aggravating
circumstances exist in the act or intention of the wrongdoer. Such damages, although
compensatory, may be given under a different head to represent a solatium to the plaintiff
for the distress, anxiety and further injury to feelings, reputation, dignity etc caused by
the manner in which the defendant acted. In every case considered appropriate for the
award of aggravated damages, the court should always point out what it considers to be
‘aggravating circumstances’ in order to justify the basis of its award. Common examples
of ‘aggravating circumstances’ or ‘aggravating factors’ from the reported cases include,
but are not necessarily limited to, malice, ill-will, or persistence in a falsehood exhibited
by a defendant to the detriment of the plaintiff. Consider the case of a publisher who
unsuccessfully attempts to plead and prove justification in answer to a defamation claim
arising out of a libelous article.35 The courts frown upon such an attitude on the part of
the defendant and view it as an aggravated factor.
LIQUIDATED DAMAGES
22. Liquidated damages are unique to claims for breach of contract. The parties may agree by
contract. The parties may agree by contract that a particular sum is payable on the default
34For the essential distinction between aggravated and exemplary damages, it is often said that the former represents a solatium to the plaintiff, and the latter a punishment of the defendant. Per Mahon J. in A v. B [1974] I NZLR 673 at 677. See also Loomis V. Rohan (1974) 46 DLR (3d) 423. 35See for instance Ntabgoba V. Editor-in-chief of the New Vision & Another [2004] 2 EA 234.
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of one of them, and if the agreement is not obnoxious as a ‘penalty’ such a sum
constitutes ‘liquidated damages’ and is payable by the party in default. The term is also
applied to sums expressly made payable as liquidated damages under a statute. In every
other case, where the court has to quantify or assess the damages or loss, whether
pecuniary or non-pecuniary, the damages are said to be ‘unliquidated’.36
23. In all cases where the parties by their contract agreed a sum payable in case default of by
one of them, it is always a question of law for the court to determine whether or not such
a sum should be paid by the party in default.
24. If this sum is a genuine pre-estimate of the loss which is likely to flow the breach, then it
represents damages, called ‘liquidated damages’ and it is recoverable without the
necessity of proving the actual loss suffered. If, however, the stipulated sum is not a
genuine pre-estimate of the loss but it is in the nature of a ‘’penalty’ intended to secure
performance of the contract then, it is not recoverable, and the plaintiff must prove what
damages he can.37
RULES AND PRINCIPLES IN AWARDING DAMAGES
I. Some general rules and principles
1. No damages can be given on an indictment.38
36 12 Halsbury’s Laws of England (4th edn) Para 110937 12 Halsbury’s Law (4th edn) Para 1116. See also Dunlop Pneumatic Tyre CO. ltd V. New Garage & Motor Co. Ltd. [1915] AC 79 at 86, 87 per Lord Dunedin: “The question whether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided upon the terms of each particular contract, judged of as at the time of the making of the contract, not at the time of the breach.”38Seeles’ case (1639) Cro EAR 557; 79 ER 1080.
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2. In all civil actions, the law does not so much regard the intent of the actor as the loss and
damage to the party suffering.39 This rule is recognized more in breach than observance.
This does not always mean that a court proceeded on wrong principle. We shall explain
this later. But for illustration, we can all remember here the dicta of Sir Barclay Nihill
C.J in Njareketa, above:
“The appellant does not seem to comprehend that but for
the action of the second defendant, the appellant’s
children would now be fatherless and his wife a widow.
Instead of expressing gratitude to the second
defendant he is now pressing for payment by the second
defendant for injury done to him… what timority!”40
3. The law presumes damage in respect of any unlawful act.41 The essence of this rule is
that whenever there is a breach of a contract or any injury to a legally enforceable right or
interest, nominal damages are recoverable even though the plaintiff may not be able to
prove actual damage. See Ongom & Another V. Attorney-General
[1979] HCB 267; Bhadelia Habib Ltd. V. Commissioner General,
URA [1997-2001] UCL 202; Ssendi Edward V. Crown Beverages
Ltd [2005] 2 ULSR 7; Karim Hirji V. Kakira Sugar Works Ltd.
[2005] 2 ULSR 60.
4. Public policy considerations may operate to prevent a plaintiff from claiming damages in
an unworthy cause. Courts are the custodians of public morals and they may justifiably
preclude a plaintiff from an award of damages in order to register their disapproval with
the plaintiff’s case if it offends public policy or outrages morality. This power is implicit
39Bessey V. Olliot and Lambert (1682) T Raym 467: 83 ER 244.40See endnote 14. 41In the oft-cited case of Ashby V. White 92 ER 126, Holt CJ stated the principle thus: “Every injury imports damage, though it does not cost the party a shilling and it is impossible to prove the contrary. Any injury imports damage when a man is hindered of his rights.”
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in the provisions of S. 14 (2) (c ) and S. 14 (3) of the Judicature Act, Cap 13, which read
in relevant:
“14. Jurisdiction of the High Court.
(2) Subject to the Constitution and this Act, the
jurisdiction of the High Court shall be exercised-
(a)
………………………………………………………………………………………
……….
(b)
………………………………………………………………………………………
……….
(c) Where no express law or rule is applicable to any
matter in issue before the High Court, in conformity with
the principles of justice, equality and good conscience.
(3) The applied law, the common law and the doctrines of
equity shall be in force only insofar as the circumstances
of Uganda and of its peoples permit, and subject to such
qualifications as circumstances may render necessary.”
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For instance, in Njarekata V. Director of Medical Service Mulago, above, the
Court of Appeal for Eastern Africa held that a twenty four year old appellant, with a wife and
children depending on him, who withdrew his consent to a life-saving medical operation, was not
entitled to nominal damages but rather contemptuous damages only for the trespass committed
against him by a skilled doctor. Delivering the opinion of the court, Sir Barclay Nihill CJ said:
“It is not due to our lack of compassion for the appellant
but to the realisation that it is necessary to protect the
government medical department and all surgeons from
unscrupulous claims of this nature that we reduce the
nominal damages awarded to the appellant to one cent
and set aside the learned judge’s order as to costs. The
appellant may certainly be a fit subject for charitable
assistance, but he is entitled to nothing in law, and he
should never have brought this action.”42
5. It is my hope that this case can remind your Lordships of your public duty to keep mere
busy bodies out of the court room.
42 For a similar approach, see also Udale V. Bloomsbury Area Health Authority [1983] 2 ALLER 522, which held that it was contrary to public policy to award damages to a mother whose child had been conceived after the mother had undergone a negligently performed sterilization operation to cover the cost of carrying out necessary extensions to the home and of bringing up the child because:
a) It was highly undesirable that the child should learn that a court had declared that his life or birth was a mistake and that he was unwanted or rejected.
b) The appropriate measure of damages in such a case would denigrate virtue.c) Medical practitioners who would incur liability would be placed under pressure to
authorize or carry out abortions, andd) The birth of healthy, a normal baby was a beneficial, not a detrimental, event.
However, those public policy considerations did not preclude an award of damages for lost income and also of pain, suffering, inconvenience, anxiety and the disruption to the family’s finances caused by the unexpected pregnancy.
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6. In sum, the rules and principles I have briefly highlighted in this part may appear to
contradict themselves or other rules of the common law and equity. That may be so but it
should not be strange for a judicial mind in the Commonwealth. The rules of the common
law and equity must be given a harmonious interpretation taking into regard the
circumstances of the case at bar. It is important to clarify this matter because in future,
some lawyers appearing before courts of law may implore court to hold that one rule of
the common law exclude another. Such an approach to the rules and principles governing
damages can only have the effect of creating absurdity and exacerbating the confusion
that underlies this area of the law.
II. Whether proof of actual damage is essential
1. We have already observed above that whenever an injury is done to a right, the
law will presume damage. Thus, as a general rule, proof of actual damage is not
essential to entitle a plaintiff to an award of damages of breach of contract or
injury to a right. Nominal damages will be enough in such a case. Nominal
damages here mean a reasonable or moderate sum.
2. However, in certain circumstances, actual damage must be proved if a plaintiff is
to be awarded any damages at all. These cases include incidences where a
corporate entity alleges that it has been defamed43; or actions alleging an
interference by a third party with a contractual relationship between A and B; so,
if C produces B to breach B’s agreement with A, A must prove actual damage to
43The People V. The Lord’s Bar- reported in East African Law Reports. PREPARED BY Mr. OKIYA JIMMY JANSKY
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maintain a claim for damages against C.44 Another common example is that of
product liability claims. A plaintiff customer must prove actual damage in order
to sustain a civil claim for damages against the manufacture: See Ssendi
Edward V. Crown Beverages Ltd. [2005] 2 ULSR 7.
WHERE ASCERTAINMENT IS DIFFICULT OR IMPOSSIBLE
1. It is an ancient rule of the common law that the difficulty of assessing damages is no
reason for the court not granting them.45 Indeed, the difficulty of assessing damages is not
a ground for giving only a nominal sum.46 Thus, even where it is impossible to assess the
appropriate measure of damages with certainty and precision, the defendant must not be
relieved of his liability to pay the plaintiff any damages at all in respect of a breach of
contract or any other actionable wrong.47 In all such cases where ascertainment of
damages is difficult, the court must attempt to ascertain damage in some way or other.48
2. It follows that the sum total of the foregoing dicta is that a trial judge must not at all
abdicate his or her duty to assess the appropriate measure of damages. Indeed, best
judicial practice dictates that even where the plaintiff fails to prove his claim, a trial judge
should still put on record his or her observations relating to the appropriate measure of
damages he would have awarded in the event that the plaintiff had otherwise succeeded
in proving his claim. This would enable the appellate courts to review his or her
assessment of damages, if necessary, and make appropriate final orders without having to
remit the case to the trial court for assessment of damages. This practice could help us
achieve expediency in the administration of justice.
44Per Kennedy L.J. in National Phonograph Co. Ltd V. Edison-Bell [1908] 1 Ch 335. 45Bovet V. Walter (1917) 62 Sol Jo 104. 46Ungar V. Sugg (1892) 9 RPC 114, CA. 47 Chaplin V. Hicks [1911] 2 KB 786.48Hall V. Ross (1813) 1 Dow 201 3 ER 672, HL.
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3. The approach above suggested is not entirely unprecedented. Indeed, Infact an
examination of the judicial approach adopted by the High Court of Uganda and approved
by the Court of Appeal for East Africa in the well-known case of Felix Onama V.
The Uganda Argus Ltd.49 highlights more about this.
4. For purposes of illustration of this principle, however, we can summarize that case here.
The appellant sued the respondent for libel in respect of a report of a press conference
published in the aftermath of the publication of a report of parliamentary proceedings.
The trial judge in the High Court of Uganda held, inter alia, that the report of
parliamentary proceedings was privileged and the report of the press conference was not
defamatory of the appellant; in case he was incorrect, the trial
judge assessed the damages at Ugx. Shs. 50,000/=
having regard to a number of factors like the
appellant’s social and political standing. Spry J.A., on
appeal, approved of the approach followed by the trial judge and was unable to differ
from the trial judge’s findings. This case, for all intents and purposes, is a good precedent
on the topic of the day.
5. Claims for damages based in various species of tort will always present the court with
special difficulties in assessment of damages. The measures of damages for personal
injury cases and cases other than personal injuries are controlled by a set different of
rules and principles. Thus apart from the fundamental principles relating to the measure
of damages prove actual damage in order to sustain a civil claim for damages against the
manufacture: See Ssendi Edward V. Crown Beverages Ltd. [2005] 2
USLR 7
49 [1968] EA 511; [1969] EA 92PREPARED BY Mr. OKIYA JIMMY JANSKY
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II. WHERE ASCERTAINMENT IS DIFFICULT OR IMPOSSIBLE
1. It is an ancient rule of the common law that the difficulty of assessing damages is no
reason for the court not granting them. Indeed, the difficulty of assessing damages is not
a ground for giving only a nominal sum. Thus, even where it is impossible to assess the
appropriate measure of damages with certainty and precision, the defendant must not be
relieved of his liability to pay the plaintiff any damages at all in respect of a breach of
contract or any other actionable wrong. In all such cases where ascertainment of damages
is difficult, the court must attempt to ascertain damage in some way or other.
2. It follows that, the sum total of the foregoing dicta is that a trial judge must not at all
abdicate his or her duty to assess the appropriate measure of damages. Indeed, best
judicial practice dictates that even where the plaintiff fails to prove his claim, a trial judge
should still put on record his or her observations relating to the appropriate measure of
damages he would have awarded in the event that the plaintiff had otherwise generally,
the trial judge must also be alive to those principles governing the case at bar specifically.
Because of time and other considerations, we cannot discuss these principles today.
6. The following cases render ascertainment of damages difficult or impossible for many a
trial judge: actions brought under the Law Reform Miscellaneous Provisions Act, Cap
79 ( death as a cause of action), defamation, personal injury cases involving permanent
disability, product liability, medical malpractice, professional negligence, nuisance, and
cases involving continuing damage, inter alia. But to be fair to judges, quite often the
parties involved in litigation and their lawyers are usually guilty of failure to produce
evidence or guiding parameters for the court’s consideration, with the result that the trial
judge finds himself in that unenviable position where he is left with nothing at all but his
own discretion to fall back on if he is to determine the quantum of damages. I will make
more remarks on this undesirable practice later.
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7. Another puzzling problem for the trial judge is whether he or she should follow the scale
of awards set by earlier cases. To what extent is the court limited by the scale of damages
set by earlier cases? Judicial opinion is greatly divided on this point. I shall reserve my
views for the conclusion of this paper.
Interest on damages
8. The other area that presents difficulty in assessment of damages is the question whether
to include interest on an award of damages. The jurisdiction of court to award interest on
damages is controlled by S. 26 of the Civil Procedure Act, Cap 71 which reads as
follows:
SECTION 26 Interests.
1)Where an agreement for the payment of interest is
sought to be enforced, and the court is of opinion that
the rate agreed to be paid is harsh and
unconscionable and ought not to be enforced by legal
process, the court may give judgment for the
payment of interest at such rate as it may think just.
2)Where and insofar as a decree is for the payment of
money, the court may, in the decree, order interest at
such rate as the court deems reasonable to be paid
on the principal sum adjudged from the date of the
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suit to the date of the decree, in addition to any
period prior to the institution of the suit, with further
interest at such rate as the court deems reasonable
on the aggregate sum so adjudged from the date of
the decree to the date of payment or to such earlier
date as the court thinks fit.
3)Where such a decree is silent with respect to the
payment of further interest on the aggregate sum
specified in subsection (2) from the date of the
decree to the date of payment or other earlier date,
the court shall be deemed to have ordered interest at
6 percent per year.”
9. In my view, the law is clear on this point. However, a great deal of litigation has evolved
on the issue of interest on damages. It is not proposed to discuss this question in detail
within this paper. Broadly speaking, however, the conflict that arises in this area revolves
around judicial interpretation of the word ‘reasonable’. Although it would appear that the
range of judicial opinion on this matter is open, the Supreme Court of Uganda has
endeavored to be consistent. See Sietco Vs. Noble Builders U Ltd.
Supreme Court Civil Appeal No. 31 of 1995; Kengrow Industries
Ltd. V. C.C. Chandran Supreme Court Civil Appeal No. 7 of
2001; Premchandra Shenoi & Anor V. Maximov Oleg Petrovich
Supreme Court Civil Appeal No. 9 of 2003; Ahmed Ibrahim
Bholm V. Car & General Ltd. Supreme Court Civil Appeal No. 12
of 2003; Administrator General V. Bwanika James & Others
Supreme Court Civil Appeal No. 7 of 2003.
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10. I find it appropriate here to quote from passage of Order, JSC in Premchandra
Shenoi & Anor V. Maximov Oleg Petrovich, SCCA No. 09/2003,
above, because it is a correct statement of the principle relating to the award of interest on
damages:
“In considering what rate of interest the respondent
should have been awarded in the instant case, I agree
that the principle applied by this court in SIETCO V. NOBLE
BUILDERS (U) Ltd Supreme Court Civil Appeal No. 31 of
1995 to the effect that it is a matter of the Court’s
discretion is applicable. The basis of awards of interest is
that the defendant has taken and used the plaintiff’s
money and benefited. Consequently, the defendant ought
to compensate the plaintiff for the money. In the instant
case the learned Justices of Appeal, rightly in my opinion,
said that the appellants had received the money for a
commercial transaction. Hence the court rate of 6% was
not appropriate and I agree with them. The rate of
interest of 20% awarded by the court of Appeal was more
appropriate.”50
50 See also the passage of Tsekooko, JSC in Ahmed V. Car & General Ltd, Supreme Court Civil Appeal No. 12 of 2002: There was no complaint about interest awarded at 45% p.a. counsel for the appellant did not give reasons for claiming such high rate of interest. No explanation was given by the trial judge for such a high rate of interest. However under s. 26 (2) Civil Procedure Act, the rate of interest is awarded on a discretionary, basis unless it is agreed to by the parties.I think that in these proceedings the award of interest on the decretal amount at the rate of 45% was uncalled for and is too high. On the facts, it is patently unjust. I would award interest at 10% p.a. on $18700 (special damages) from 17/3/1999 till payment in full. I would award interest of 8% on Shs. 5m/= (general damages) from the date of judgement till
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III. RESTITUTION IN INTEGRUM
1. Restitutio in integrum, or rather restitution, is a general rule applicable to
assessment of damages arising out of all wrongful acts. This rule is, perhaps, the
most important principle guiding the award of damages in civil cases. It refers to
the principle or rule that the court must in all cases award damages with the object
of compensating the plaintiff for his or her loss. In other words, as a general rule,
damages should not be used to serve any other function; neither should the
plaintiff be unjustly enriched under the guise of an award of damages nor should
the defendant be unjustly punished under the same guise. See Obongo &
Another V. Municipal Council of Kisumu [1971] EA 91;
Ongom & Another V. Attorney-General [1979] HCB 267;
Kyambadde V. Mpigi District Administration [1983] HCB
44; Nsaba Buturo V. Munansi Newspaper [1982) HCB 134,
Ntabgoba V. Editor- in-chief of the New Vision & Another
[2004] 2 EA 234.
2. Browen LJ in The Argentino appreciated the rule thus:
“The court has no power to give more; it ought
not to award less.”51
3. It follows therefore that make an appropriate assessment of damages, the first and
paramount consideration should be restitution. In practice, whether tort or
contract, the court should pause the follow the question: “how much would
restore the plaintiff to its situation just before the wrongful act?” Technically
payment in full.”51Per Bowen LJ in the Argentino (1889) 14 App Ca 519, HL.
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speaking, other questions or considerations would be irrelevant and it would be a
misdirection to follow them.
Application in Contract
4. Thus, it has been held that the general intention of the law in giving damages for
breach of contract is that the plaintiff should be placed in the position as he would
have been in the contract had been performed.52 No more, no less. Gullabhai
Ushillingi V. Kampala Pharmaceuticals Ltd53 Supreme
court Civil Appeal 6 of 1999; Kengrow Industries Ltd. V.
C.C. Chandran Supreme Court Civil Appeal No. 7 of 2001;
Ahmed Ibrahim Bholm V. Car & General Ltd. Supreme
Court Civil Appeal No. 12 of 2003; Bank of Uganda V.
Masaba & Others [1999] 1 EA 2; Uganda Telecom V.
Tanzanite Corporation [2005] EA 351.
Application in tort
5. Where any injury is to be compensated by damages, in settling the sum of money
to be given for reparation the court should as nearly as possible get at the sum of
money which will put the party who has been injured or who has suffered in the
same position as he would have been in if he had not sustained the wrong for
which he is now getting his compensation or reparation.54 No more, no less See
Interfreight Forwarders (U) Ltd. V. EADB Supreme Court
52Per Wertheim V. Chicoutimi Pulp Co [1911] AC 301; See also Robinson V. Harman [1843-60] All ER Rep 383.53Per Mulenga JSC in Gullabhai Ushillingi Vs. Kampala Pharmaceuticals Ltd Supreme Court Civil Appeal NO. 6 of 1999: “I respectfully agree that this is the correct statement of the law. I would add that it is premised on the principle of restitution in intergrum. Damages are intended to restore the wronged party into the position he would have been in if there had been no breach of contract. Thus, in the case of employment for a fixed period and receive the full remuneration for it. And in the case of the contract terminable on notice, receive remuneration for that period, or for would be paid in lieu of the notice”. 54Per Lord Blackburn in Livingstone V. Rawyards Coal Co (1880) 5 App Ca 25, HL.
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Civil Appeal No. 33 of 1992; Musoke V. Departed Asians
Custodian Board [1990-1994] EA 219; Mutekanga V.
Equator Growers (U) Ltd [19995-1998] 2 EA 219; Uganda
Breweries Ltd. V. Uganda Railways Corporation Supreme
Court CIVIL Appeal NO. 6 OF 2001 (unreported); Karim
Hirji V. Kakira Sugar Works Ltd. [2005] 2 ULSR 60.
6. Indeed, in practice, owing to the principle of restitution, liability for income tax
must be considered by the court in determining quantum of damages to prevent
double recovery (where the damages themselves are not taxable in the hands of
the recipient) or unfair diminution of judicial compensation (where the damages
themselves are taxable in the hands of the recipient).
IV. REMOTENESS
Damages must be proximate
1. It is trite law that damages should not be recovered where they are too remote
with regard to the wrongful act. In other words, the rule is that the damages
(material loss alleged) must be proximate, and fairly and reasonably connected
with the breach of contract or wrong.55 One who commits a wrongful act is not
liable for damage which is not the natural or ordinarily consequence of such an
act, unless it is shown that the defendant has notice of special circumstances as to
render him so liable.56 See Bank of Uganda V. Masaba & Others [199] 1 EA 2;
Uganda Telecom V. Tanzanite Corporation [2005] EA 351;
55Hadley V. Baxendale (1843-60) All ER Rep 461; See also the dicta of Martin B in Wilson V. Newport Dock Co (1866) LR 1 Exch 177 for a restatement of the principle. 56 Per Borill CJ in Sharp V. Powell (1872) LR 7 CO 253
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2. Thus, in my view, the rule of remoteness practically requires that a proper
assessment of damages in any particular case before a trial court should indicate
exactly where, in the opinion of the court, the law draws the; line on the extent of
damages that can be recovered. See Sendi Edward V. Crown Beverages Ltd
[2005] 2 ULSR 7, where the appellant was precluded from claiming damages for
alleged impotence arising out of drinking a defective soda product manufactured
by the appellant.
Damages assessed once and for all
3. It is an ancient rule of the common law that damages must be assessed once and
for all; for all injuries past, present, and future. This principle is frequently slated
in the form of a legal proverb, “Nemo debet bis vexari pro eadem cause. Thus a
plaintiff who recovers damages in one suit would barred from bringing a second
action under the same cause of action for consequential damage he sustains even
though he were put to great expense, in consequence of the injury he has received;
for it shall be intended that the jury (or court) considered all possible
consequences on the trial of the first action.57
4. However, the rule is not as strict as it may sound. In certain cases, a plaintiff may
be entitled to bring a further action. The test was appropriate stated by Borill CJ
in Gibbs V. Cruickshank58 thus:
‘The test whether a previous action is a bar is not whether
the damages sought to be recovered are different but
whether the cause of action is the same.”
57Fetter V. Beale Holt (1701) KB 12. 58 Gibbs V. Cruickshank as reported in LR 8 CP.
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5. In my view, the foregoing legal position enunciated at common law does not
differ from what our Civil Procedure Act, Cap 71 prescribes in Section 7 on the
doctrine of re judicata:
SECTION 7 Res judicata.
“No court shall try any suit or issue in which the
matter directly and substantially in issue has been
directly and substantially in issue in a former suit
between the same parties, or between parties under
whom they or any of them claim, litigating under
the same title, in a court competent to try the
subsequent suit or the suit in which the issue has
been subsequently raised, and has been heard and
finally decided by that court.”
Remoteness and intervening cause
6. It is a well-established rule of law that if a defendant’s breach of contract or duty
is the primary and substantial cause of the damage sustained by plaintiff, the
defendant will be responsible for the whole loss, though it may have been
contributed to or amplified by the wrongful conduct of a third person.59 In other
words, a defendant who acts negligently towards a plaintiff is at law responsible
for the resulting injury to the plaintiff, even though but for the intervening act of a
59 Per Lord Alverstone CJ in the oft-cited case of De La Bere V. Pearson Ltd [1907] 1 KB 483. See also the dicta of Hamilton LJ in Lathan V. R Johnson (1913) KB 398.
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third person or of the plaintiff himself, the injury suffered by the plaintiff would
not have occurred. See, Overseas Touring Co. (Road Services) Ltd.
V. African Production Agency (1949) Ltd. [1962] EA 190,
where a transport company was held liable to pay the cost of a customer’s oil tins
even if the majority of these items were stolen by a crowd that gathered after the
transport company’s lorry was involved in a collision with another vehicle.
7. However, this rule should not be interpreted as creating a carte blanche enabling
plaintiffs to present whimsical claims for damages. The parent rule, that of
remoteness, can always be called in aid to help indicated exactly where the law
should draw the line between recoverable and unrecoverable damages with regard
to cases involving intervening circumstances.
8. For instance; in one case, through the negligence of Railway Company’s servant,
a railway engine fell over from the defendant company’s railway line into the
garden of the plaintiff. Damage was done to the flowers in the garden of the
plaintiff by a crowd that assembled there. It was held that the damage done by the
crowd (undoubtedly an intervening cause) was too remote in the circumstances of
this case.60 This judicial approach to a complex question demonstrates the
harmonization of conflicting rules of the common law that I referred to earlier on.
Application in tort
9. In keeping with the rule of remotes, it is generally accepted that tortuous liability
of a defendant must be limited to injury that was reasonably foreseeable as a
direct consequence of his wrongful act in those circumstances. Thus, a court of
law confronted with the problem of assessing damages arising out of a
defendant’s negligence would do well to adopt an objective test of ‘reasonable
60Scholes V. Northern London Railway CO. (1893) (1870) 21 LT. 835.PREPARED BY Mr. OKIYA JIMMY JANSKY
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foreseeability’, qualified in certain circumstances by public policy considerations.
There are a number of reported cases that demonstrate the continuing relevancy of
this time honoured principle. The leading case in this area is, as you may recall ,
Re Polemis.61
Application in contract
10. In keeping with the rule of remoteness, it is generally accepted that the liability of
a defendant for breach of contract must be limited to losses that are the proximate,
probable and likely consequences of the breach, or such as may be taken to have
been fairly in the contemplation of the parties when the contract was entered into.
This principle is explained at great length in the oft-cited case of Hadley V.
Baxendale.62
Application in contract
11. There is great doubt among many legal minds as to whether or not the rule of
remoteness is the same for damages claimed in tort and contract. My view is that
the, rule of remoteness is the same in actions on contract as tort: that damages
which the plaintiff is entitled to must result directly from the wrongful act of the
defendant and that no claim can be made to damages which are too remotely
connected with it. The essence of this rule is to preclude entitlement to damages
which are either too speculative or uncertain.
12. Indeed, there may be differences in the application of this rule to the various
actions and one should approach judicial precedents on this point with the
necessary circumspection. As a matter of practical guidance, the trial court must
have greater regard for the circumstances of the particular case at bar than for
61[1921] 3 KB 560.62[1843-60] All ER Rep. 461
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judicial evaluation of an earlier case, notwithstanding the range of benefits such
comparison may bring forth.
AGGRAVATION AND MITIGATION OF DAMAGES
1. In addition to the rules discussed above, I would like to briefly talk about the twin
principles of aggravation and mitigation of damages, incidentally, our discussion of
aggravated damages touched on aggravation.
Aggravation in contract
2. Damages in an action for breach of conduct are ordinarily confined to losses which are
capable of being appreciated in money. However in certain exceptional circumstances,
the court would be justified in looking at all what happened or was likely to happen down
to the day of trial to increase the plaintiff’s pecuniary and non-pecuniary loss. These
circumstances are called aggravating factors and they have the effect of increasing the
quantum of damages. See Ahmed Ibrahim Bholm V. Car & General Ltd.
Supreme Court Civil Appeal No. 12 of 2003, where court awarded 5/= in
addition to other damages to the appellant because it found that appellant had been
humiliated, harassed and embarrassed by this employers with the object of bringing an
end to the employment relationship.
3. For instance, the conduct of a defendant may be a relevant factor in the assessment of
damages if it accounts for more than the ordinary losses that a plaintiff would be put by
reason of a breach of a particular contract. In such cases, it is not unusual for a plaintiff to
aver aggravation in the following terms: “that defendant’s conduct occasioned injury to
feelings and dignity of the plaintiff.” Let’s take the following examples:
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4. A forty- year old putative father breaches a promise to marry his 36 year old girlfriend
of ten years’ standing while she is pregnant. To commit this breach, he uses the
opportunity of a family re-union to accuse her of infidelity.
5. An institutional employer summarily dismisses a soon-to-retire employee two days
before the latter was to become eligible for pension benefits under an institutional
employee pension scheme. To commit this breach, the agents of the employer post a
notice on the company notice board that the old man has been terminated because it is
suspected he is a thief. No fair hearing for the old man.
6. In both cases, the plaintiff may recover substantial damages without proof of actual
damage. This is because the facts cases disclose an aggravating factor. The breach of
contract in both cases is underscored by aggravation.
Aggravation in tort
7. Similarly, in tort, the existence of aggravating factors will have the effect of increasing
the plaintiff’s damages. Some of the circumstances of aggravation that arise in the
reported cases include; the exercise of illegal powers by the state or agents of the state,
insult, levity, arrogance, insolence, and the defendant’s insistence in a wrongful for
instance where a publisher pleads and attempts rather unsuccessfully to prove the defense
of justification in answer to an action for libel without exploring out-of-court remedies.
See Obongo & Another V. Municipal Council of Kisumu [1971] EA
91; Ongom & Another V. Attorney-General [1979] HCB 267;
Kyambadde V. Mpigi District Administration [1983] HCB 44;
Nsaba Buturo V. Munansi Newspaper [1982] HCB 134;
Ntabgoba V. Editor-in-chief of the New Vision & Another [2004]
2 EA 234; Machira V. Mwangi [2001] 1 EA 110.
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8. Where the court forms the opinion that the defendant’s conduct is in the nature of
aggravation, it may award additional damages to compensate the injury to the plaintiff’s
feelings, pain and suffering that is presumed to have been occasioned.
Some remarks on pleading and practice
9. Generally speaking aggravating factors need not be stated in the plaintiff. These matters
are admissible in evidence at the trial even though not specifically pleaded. However, if is
desirable that pleadings should indicate circumstances of aggravation to avoid surprise at
trial. See Ongom & Another V. Attorney-General [1979] HCB 267.
Mitigation in contract: Duty of plaintiff to mitigate damages
10. It is a well-established rule of common law that the plaintiff has a duty to mitigate
damages. This rule was ably articulated by Cockburn CJ in the landmark case of Frost
V. Knight63 thus:
“In assessing damages for breach of performance, a court
will of course take into account whatever the plaintiff
has done, or has had the means of doing, and as a prudent
man, ought in reason to have done, whereby his loss has
been, or would have been, diminished.”
11. Thus, the plaintiff cannot claim any part of the damage which is due to his neglect to
take such steps that would have the effect of reducing his loss. If the action he has taken
has actually diminished his loss, such diminution may be taken in account.64
63
64
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12. The plaintiff carries the ultimate burden to prove, on a balance of probabilities, that he
discharged this duty. However, if the defendant contends that the loss proved by the
plaintiff could have been minimized or avoided altogether by the taking of some step
which the plaintiff could reasonably have taken but did not take, the onus is on the
defendant to make out that contention on the evidence.65
13. But in all breach of contract claims, the court must inquire into the availability of
circumstances of mitigation that the plaintiff could have called in his aid. However, it has
been held that a sum of money paid to the plaintiff by insurer in respect of loss suffered
by him is not to be taken as a mitigation factor.66
Mitigation in Tort
14. Generally speaking, a plaintiff is not bound to spend money to minimize his damages in
tort. However, where the damage that arises out of a tort committed by the defendant is
akin to a damage that would arise out of a breach of contract, the law imposes a duty on
the plaintiff to mitigate his losses. For instance, a cab driver whose motor vehicle is
unlawfully detained cannot maintain a claim for ‘loss or earnings’ without taking
reasonable steps to mitigate his loss. See UCB V. Deo Kigozi [2002] 1 EA
293.
15. Furthermore, in tort, a plaintiff carries a duty to act reasonably after a tort has been
committed against them. Thus, a plaintiff who, in remedying injury occasioned him by
the defendant, flies to London for a medical operation that could have been procured in
Kampala cannot be rewarded in damages for his unreasonable behaviour. Similarly, a
plaintiff who, refuses treatment for the effects of an assault or battery and thereby allows
himself or herself to suffer greater injury than originally done him, attracts only scorn
65
66
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from the court, but not damages, for his unreasonable behaviour. See for instance,
African Highland Produce Ltd. V. Kisorio [2001] EA 1, where a
plaintiff, of relatively considerable means could have retrieved his damaged motor
vehicle from the garage in 21 days following the traffic accident but rather chose hire a
luxurious land cruiser motor vehicle at an unreasonably high rate and for an
unnecessarily long period, was precluded from recovering the damages he claimed
because he did not act prudently.
16. Lastly, mitigation in tort denotes all the circumstances which a defendant may adduce in
evidence with a view to securing a reduction of damages that will be awarded to the
plaintiff in the suit. In this regard, the following circumstances of mitigation have been
judicially considered: (a) provocation by the plaintiff as to occasion the assault; (b)
poverty of the defendant (c) offer of an apology and an out-of-court settlement by a
publisher of a libelous article (d) reasonable and probable cause in answer to a claim of
damages for false imprisonment, etc.
CONTRIBUTION AND APPORTIONMENT
1. Where the trial court makes a finding on the evidence that two or more parties are to
blame for the injury arising out of, say, a road collision, it should proceed to apportion or
distribute the blame between the parties depending on their level of contribution (or
causation) in the circumstances. Assessment of damages in this way presents
considerable difficulties for judges and it is advisable that court should invite technical
expertise, at the cost of the parties, to help determine these matters.
2. It is not possible to lay down a single principle guiding contribution and apportionment of
damages but neither should it be left to realm of mystery. In all cases where appointment
is possible, the court’s inquiry must proceed along this line: how far was the eventual
damage/loss caused by the actions of each of the parties involved? Liability is broadly
apportioned in percentages and the appellate court will not lightly interfere with
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apportionment of blame made by the trial court. See Overseas Touring Co. (Road
Services) Ltd. V. African Production Agency (1949) Ltd. [1962]
EA 190, Uganda Breweries Ltd. V. Uganda Railways Corporation
Supreme Court Civil Appeal No. 6 of 2001 (unreported).
3. In practice, matters touching contribution and apportionment should be specifically
pleaded and proved because these are the kind of circumstances (i.e. usually negligence)
for which particulars are needed. See Order 6 rule 3 Civil Procedure Rules SI 71-1
(particulars to be given where necessary).
DISTINCT RULES FOR MEASURE OF DAMAGES IN CONTRACT & TORT
1. The breadth of the commons law represents what is both good and bad about such a
system of judge-made rules and principles. Therefore, I expect to be understood when I
say here that, because the common law has developed a myriad rules and principles
relating distinctively to the measure of damages in both tort and contact respectively, it is
bad. The breadth or diversity of the common law is bad in the sense that it renders it
difficult for us to discuss these distinct rules at great length in today’s forum. I am
consoled by the fact in over 30 years of my devotion to the legal profession; I am yet to
hear of a single meeting of legal minds anywhere in the Commonwealth where the entire
body of the common law was discussed exhaustively.
2. Thus, whereas I have endeavored to discuss the basic rules and principles that are
common to measure of damages in both tort and contract, it is not proposed to discuss the
distinct rules as well in this paper. But I am sure that your Lordships will ably appreciate
them in the course of your vocation.
E. Appeals
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1. Assessment of damages is principally the duty of the trial court. Indeed, although
appellate courts within Commonwealth, including ours, are by statute enabled to invoke
any of the powers of a trial court, in practice, they will not engage in the activity of
assessment of damages except in the most exceptional circumstances. See Fredrick J.
K. Zaabwe V. Orient Bank & Others Supreme Court Civil Appeal
No. 4 of 2006 (unreported).
2. The role of the appellate court in the province of damages as articulated by Greer LJ in
Flint V. Lovell67 is the correct statement of the legal principle applicable in the
appellate courts of Ugandan with regard to damages in civil suits:
“An appellate court will be disinclined to reverse the
finding of a trial judge as to the amount of damages
merely because it thinks that had it tried the case in the
first instance it would have given a greater or lesser sum.
In order to justify reversing the trial judge on the question
of amount of damages, it will generally be necessary that
the appellate court should be convinced either;
a) That the trial judge acted upon some wrong
principle of law, or
b) That the amount awarded was so extremely
high or very small as to make it, in the
judgement of the appellate court, an entirely 67[1935] 1 KB 354.
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erroneous estimate of the damage to which the
plaintiff is entitled.
3. The above principle has been applied by the Supreme Court of Uganda in a number of
cases. See Impressa Federici V. Irene Nabwire Supreme Court Civil
Appeal No. 3 of 2000; Uganda Breweries Ltd. V. Uganda
Railways Corporation Supreme Court Civil Appeal No. 6 of 2001
(unreported); Kengrow Industries Ltd. V. C.C. Chandran
Supreme Court Civil Appeal No. 7 of 2001; Premchandra Shenoi
& Anor V. Maximov Oleg Petrovich Supreme Court Civil Appeal
No. 9 of 2003; Ahmed Ibrahim Bholm V. Car & General Ltd.
Supreme Court Civil Appeal No. 12 of 2003; and Administrator
General V. Bwanika James & Others Supreme Court Civil Appeal
No. 7 of 2003; Bank of Uganda V. Masaba & Others [1999] 1 EA
2, inter alia.
Wrong principle68
68See also the judgment speech of Tsekooko, JSC in Ahmed Ibrahim Bholm V. Car & General Ltd. Supreme Court Civil Appeal No. 12 of 2002:“The trial judge found that the appellant “was harassed, embarrassed and humiliated by the General Manager.” Because of that holding, the learned judge awarded the appellant Shs. 30m/=. My understanding of the findings of the judge is that although he described the damages as general damages (which must be due to the way the 5th issues was framed), on the evidence and the pleadings, these are punitive or exemplary damages which the appellant had claimed in the plaint and he adduced evidence to prove such damages.…On damages it is now established that an appellate court will not reverse a judgment, or part of judgment of a court below on a question of damages unless the appellate court is satisfied that the judge acted on a wrong principle or that the amount awarded was so extremely large or so very small as to make it an entirely erroneous estimate of the damage: See Singh V. Kumbhal (1948) 15 EACA 21; Henry. H. Ilanga Vs. M. Manyoka (1961) EA
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4. Per Oder, JSC in Uganda Breweries Ltd. V. Uganda Railways
Corporation Supreme Court Civil Appeal No. 6 of 2001
(unreported):
“In my view, the award of Shs. 280 the million or DM400,
000 cannot be left to stand. On the authority of Bank
of Uganda- VS- F. W. Masaba, supra, this court can
interfere with the award, because it was not properly
assessed and was made on wrong principles.
… In the circumstances, I would award (DM 213, 116. 36 as
special damages to the respondent.”
Entirely erroneous estimate
5. Per Oder, JSC in Administrator General V. Bwanika
James & Others Supreme Court Civil Appeal No. 7 of
2003:
“The Court of Appeal held the view that the provisions of
the Currency Reform Statute (repealed) did not apply to
the instant case. I agree with that view.
705 and Obongo’s case (supra) at Page 96.
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It is trite law that an appellate court should not interfere
with an award of damages by a trial court unless the
award is based on an incorrect principle or is manifestly
too low or too high. In the instant case, the learned
Justices of Appeal interfered with the award of damages
by the trial Court and awarded a lower figure. Be that as it
may, my opinion is that the sum of Shs. 424,891,540/=,
representing the purchase price of Shs. 93,995,560/= of
the commercial building, which the appellant should have
paid to the respondents is still too excessive.
This state of affairs arose because the Hon. Justices of
Appeal used the Future Value Interest Factor (FVIF)
formula in assessing what should be awarded to the
respondents.
In my view, the respondents would be fairly compensated
if the award to them was assessed by subjecting the sum
of Shs. 93,995,560/= to a factor of 10% per annum at
simple interest for the period of 17 years. This is the
period from 1986, when the suit cheque was paid to the
appellant’s account to May 2003, when the Court of
Appeal varied the trial Court’s award of damages to the
respondents. This plus the principal would yield the
amount payable under this item to Shs. 226,788,012/= (of
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The award of general damages of Shs. 10,000,000/= to
each of the respondents, making a total of Shs.
10,000,000/= awarded by the Court of Appeal to all the
respondents was, in my opinion fair in the circumstances
of the case. It is not excessive. I would not interfere with
that item of the award.
In the result, I would make a total award of Shs.
326,788,012/= payable to the respondents. This sum
should carry interest at 6% (the court rate) from 7/7/2003,
the date of the Court Appeal judgment till payment in
full.”
6. This general rule should also guide a High Court Judge in determining appeals from the
magistrate’s courts. Once a trial court has determined the measure of damages, this
principle presents the appellant with insurmountable difficulties, and rightly so in my
view. Litigation on a very imprecise point like assessment of damages should not be
unnecessarily encouraged.
SOME RECOMMENDATIONS ON PRACTICE & PROCEDURE
Below are some practical recommendations relating to assessment of damages?
Proof of damages
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1. In all civil cases, the burden of proving claims in a suit rests on the plaintiff and the
standard of proof is on the balance of probabilities. Although the law presumes
general damages to flow from the wrong complained of, it is trite law that the plaintiff
must plead and prove claims of special damages, if any. This rule applies where the
suit proceeds inter parte or ex parte. Thus, even where the defendant neither files a
defence nor enters appearance, the plaintiff bears the burden to prove his claim to the
required standard. The burden and standard of proof do not become any less:
Mutekanga V. Equator Growers (U) Ltd [1995-1998] II EA
219. See also Kyambadde V. Mpigi District Administration
[1983] HCB 44 for the proposition that although special damages must be strictly
proved, they need not be supported by documentary evidence in all cases.
2. Indeed, even where a party admits liability, the suit must be set down for a proper
inquiry into the issue of damages: Impressa Federici V. Irene Nabwire
Supreme Court Civil Appeal No. 3 of 2000 (unreported). This is
why it is fondly said within the common law jurisdictions that damages are always in
issue.
3. However, what is less trite is that prudence, if not the law, requires the parties or their
lawyers to provide the court with proper guidance relating to the inquiry of damages
generally. They seem to be content when it comes to the various reliefs prayed for.
Consider the typical dilemma of a trial judge as presented here by Ogoola J. (as the
was) in Bhadelia Habib Ltd. V. Commissioner General, URA
[1997-2001] UCL 202:
“On the plaintiff’s claims for damages, I am therefore left
only with the issues of general damages. On this one, both
counsel for the plaintiff and the defendant were
PREPARED BY Mr. OKIYA JIMMY JANSKY
LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA179
uncharacteristically unhelpful. The plaintiff’s counsel
merely alleged a claim of Shs. 20 million, not a word on
why that figure, or how it is arrived at.
The latter counsel did not challenge the substantive claim,
or the figure. In these circumstances, I am left with
nothing at all but my own discretion to fall back on.
Considering the plaintiff’s propensity for a little
exaggeration of his claims in this case, I am prepared to
award him general damages in the amount of Shs. 5
million.”
4. My recommendation is that the parties, their lawyer as well as the trial court must
give ample resources to the inquiry of damages during litigation. The impression,
among some quarters of the bar and bench (especially the lower bench) that general
damages are “damages at large” and any figure picked “from the blue” would
suffice, is at best, disturbing and, at worst, entirely erroneous in my view.
The END
(THE END OF NEGLIGENCE AND STRICT LIABILTY
MODULE)
God bless all the readers
“I REMAIN YOUR TRUE LECTURER Mr. JIMMY OKIYA
JANSKY”
CAVENDISH UNIVERSITY UGANDAPREPARED BY Mr. OKIYA JIMMY JANSKY
LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA180
“DELIVERING BRITISH EDUCATION WITH A LOCAL TOUCH”
"Knowledge speaks, but wisdom listens."
REFRENCE
Heydon J.D, (1973), Economic Torts, London, Sweet & Maxwell,
Ames Phillip S., (1959): The General Principles on the Law of Torts, 1st Edition, London, Butterworths & Co.
Tony Weir, (1996): A Casebook on Torts, 6th Edition London Sweet & Maxwell 1988, 8th Edition, Sweet & Maxwel.
Page Keeton & Robert E. Keeton, Torts Cases and Materials American Casebook Series, West
PUBLISHING Co
P.S.Atiyah, (1967); Vicarious Liability in the Law of Torts, London, Butterworths.
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LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA181
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