GENERAL NEGLIGENCE

There must first exist a duty of care, a breach of that duty & damages arising from the breach [Alhassan Kotokoli v.
Moro Hausa]

The existence of a duty of care is a matter of law & this is determined by precedent, that is, whether the courts have
already held that a duty of care was owed in such circumstances.

In situations where there is no precedent, the courts take into consideration certain principles. The courts identify
reasonable foresight of harm, proximity between the plaintiff & defendant & whether it was fair, just & reasonable.
The first two principles are established by Lord Atkin in Donoghue v. Stevenson & the third in the Caparo Case.

Reasonable Foresight of harm

The plaintiff must determine whether the injury he faced was reasonably foreseeable. Such injury could be in the
form of physical injury, damage to property and economic loss.

*Rescue

It is reasonably foreseeable that in the event of an accident, someone other than the defendant’s servant might try to
rescue the person in danger & might suffer injury in the process. Therefore where the defendant through his
negligent conduct puts X in danger & the plaintiff comes to his rescue, the defendant owes the plaintiff a duty of care.
[Chadwick v. BTC] [Baker v. T.E Hopkins][Haynes v. Harwood]

Distinguished, since no one was in imminent danger [Cutler v. United Diaries]

*Nervous Shock

Primary victim: Nervous shock was not distinct from physical injury, thus the plaintiff must show that it was
reasonably foreseeable that the defendant’s conduct would expose him to injury. [Page v. Smith]

Secondary victim: A plaintiff may recover damages for nervous shock brought on by injury caused not to him but to a
near relative or by the fear of such injury. [Hambrock v. Stokes] An extension has been made where the plaintiff did
not see or hear the incident but came on its immediate aftermath. [Boardman v. Sanderson]

Class of persons: The possible range of class of persons whose claims may be recognised was between the closest
of family ties including that of parent and child or husband and wife. The ordinary bystander may not succeed under
the circumstances. Alcock v. Chief Constable of South Yorkshire extends this class of persons to all relationships
based on ties of love and affection. Thus the persons who share ties founded on love and affection with the injured
are included within the class of persons.

Proximity to the accident: The person must have been close both in time and space to the accident. It is not
necessary for the person to have been present at the time of the accident, and under the aftermath doctrine one who
came very soon upon the scene after it had occurred should not be excluded.

Means by which the shock was caused: The shock must have been brought about through the sight or hearing of the
event or of its immediate aftermath by the person making the claim. Shock brought about through communication
from a third party is not accepted.

*Pecuniary Loss

For the plaintiff to succeed the economic loss must either be the immediate consequence of the negligence, arise
from damage to person or property, or must be consequent upon injury to person or property. [Hedley Byrne v.
Heller][SCM v. Whitall] [Electrochrome v. Welsh Plastics][Spartan Steel v. Martin]

PRODUCT LIABILITY
There must first exist a duty of care, a breach of that duty & damages arising from the breach [Alhassan Kotokoli v.
Moro Hausa]

The existence of a duty of care is a matter of law & this is determined by precedent, that is, whether the courts have
already held that a duty of care was owed in such circumstances.

In situations where there is no precedent, the courts take into consideration certain principles. The courts identify
reasonable foresight of harm, proximity between the plaintiff & defendant & whether it was fair, just & reasonable.
The first two principles are established by Lord Atkin in Donoghue v. Stevenson & the third in the Caparo Case.

As far as the law relating to the liability of a manufacturer to a consumer is concerned, the issue is settled by
precedent. The law is that a manufacturer who sells his products in such a form which shows that he intends them to
reach the ultimate consumer with no reasonable possibility of intermediate examination & also knowing that if
reasonable care is not used in the preparation or putting up of the products, the consumer may be injured, owes a
duty to the consumer to take reasonable care. [Donoghue v. Stevenson]

Manufacturer: The plaintiff must show that the defendant was a manufacturer. The cases have held that
manufacturer includes producers, repairers, masons, assemblers, etc. [Brown v. Coterill]

Product: The product may be used internally [Donoghue v. Stevenson] or externally [Grant v. Australian Knitting Mills
Ltd] or for other use.

Sale: Whether the goods are supplied through sale or gift of samples, the manufacturers would be liable in
negligence. [Hawkins v. Couldson & Purley][Evans v. Triplex Safety Glass]

Ultimate Consumer: This covers any user who may foreseeably be harmed by the product. Extended to include
bystander [Stennet v. Hancock]

No reasonable possibility of intermediate examination: The plaintiff must establish that the manufacturer did not
intend intermediate examination of the product before its use. [Dransfield v. British Insulated Cables]

Want of reasonable care: Where the circumstances require the defendant rather than the plaintiff to explain what
happened, the plaintiff may rely on res ipsa loquitur. [Aboagye v. Kumasi Breweries] [Acheampong v. Overseas
Breweries]

Preparation or putting up: Manufacturing could include designing, packaging or distributing the product. [Watson v.
Buckley]

Life/ Property: The injury must be to the consumer’s life or property. [Donoghue v. Stevenson][Hedley Byrne v. Heller]

Breach of Duty

In determining whether there has been a breach of the duty of care owed, the standard of care is examined .i.e. the
degree of care required by the defendant in performing the activity from which the negligence action arises. The law
uses the reasonable man as the yardstick for determining the standard of care. The standard of the reasonable man
is an impersonal test and is independent of the idiosyncrasies of the particular person whose conduct is in question.
[Glasgow Corp v. Muir]

Factors used in determining the standard of care include;

Likelihood of Injury: .i.e. whether the defendant is engaged in a dangerous activity. The more dangerous the activity,
the greater the care required. [Bolton v. Stone]

Magnitude of injury: The law requires a degree of care which is proportional to the seriousness of the injury risked.
[Paris v. Stepney]

Importance/ Social Value of Activity or the end to be achieved: Where the end to be achieved is of national
importance or social benefit, the courts lower the standard of care. [Daborn v. Bath Tramway][Watt v. Hertfordshire]

Expense involved in safety measures against the risk: Where there is a great risk which no precaution can
substantially be reduced, the duty of care may be reduced by entirely ceasing operations. Where the risk is slight,
slight precautions may be taken. [Latimer v. AEC]

Compliance with general & approved practice: The standard of care may be reduced if it is shown that the defendant
conformed to standard practices accepted as normal by other members of the community in similar circumstances.
[Roe v. Minister of Health]

Res ipsa Loquitur: Where the circumstances require the defendant rather than the plaintiff to explain what happened,
the plaintiff may rely on res ipsa loquitur. Three conditions must however be satisfied to succeed;

The event must be of a kind which ordinarily would not happen unless someone failed to take care [Sochaki v. Sals]

The defendant must have been in control [Ude v. Bonjut]

There must be no explanation [Barkway v. South Wales] [Adjei v. Yeboah]

Where the maxim applies, the burden shifts to the defendant. [Decker v. Atta] [Dumgya SCC]

Resultant Damage

For there to be damage, the plaintiff must show that he was left worse off than before. [Rothwell v. Chemical
Insulating Co]

Two issues are considered here .i.e. causation & remoteness of damage.

The defendant has to establish a causal connection between the defendant’s lack of care & the damage suffered.
The “But for” Test is applied & it provides that if the plaintiff would have suffered injury in spite of the defendant’s lack
of care, then injury was not caused by the defendant. [Wilsher v. Essex Area Health Authority][Barnett v. Chelsea
Hospital Management Ctee]
Concerning remoteness of damage, two schools of thought arise .i.e. the wagon mound school & the polemis school
of thought. According to the wagon mound rule, the resultant damage must be reasonably foreseeable. [Wagon
Mound Case] The polemis rule on the other hand states that once the defendant breached his duty, he was
responsible for all direct injury arising, & there is no need to determine whether injury was foreseeable. [Re Polemis]
[Smith v. Leech Brain]

Novus Actus Interveniens: If there is an intervening act which the defendant could not have foreseen, then the
defendant was not liable. [Brandon v. Osborne] If the intervening act is something which is likely to happen, it is no
defence. [Haynes v. Harwood]

Elections

Where a person is put in alternative danger & he elects what to him is the less perilous, the defendant is liable if he is
injured. [Jones v. Boyce][Ekow v. Enechukwu][Yeboah v. Yamak]

Defences

Contributory Negligence: S1(1) of the Civil Liability Act provides that where any person suffers damage as a result
partly of the fault of another & partly his fault, a claim in respect of that damage shall not be defeated by reason of the
fault of the person who suffered damage, but the damages recoverable would be reduced to such an extent as the
courts think is just & equitable having regard to the plaintiff’s share of responsibility. [Livox v. Jones Quarries] [Owens
v. Brimmell]

Volenti Non Fit Injuria: If the defendant shows that the plaintiff agreed to the risk taken by the defendant, the plaintiff
would not succeed. [Gyasi v. State Mining Corp] [Bowater v. Rowley Regis Corp]

OCCUPIERS LIABILTY
There must first exist a duty of care, a breach of that duty & damages arising from the breach [Alhassan Kotokoli v.
Moro Hausa]

The existence of a duty of care is a matter of law & this is determined by precedent, that is, whether the courts have
already held that a duty of care was owed in such circumstances.

In situations where there is no precedent, the courts take into consideration certain principles. The courts identify
reasonable foresight of harm, proximity between the plaintiff & defendant & whether it was fair, just & reasonable.
The first two principles are established by Lord Atkin in Donoghue v. Stevenson & the third in the Caparo Case.
*As far as the law relating to the liability of an occupier to a contractual visitor is concerned, the issue is settled by
precedent. An occupier is a person in control or possession of the premises, & a contractual visitor is a person
coming to the premises in pursuance of a contract. The nature of an occupier’s obligation in relation to the safety of
premises would be contained in the contract. If the contract is silent on this, the law implies that the occupier has the
duty to ensure that his premises have been constructed with as much care & skill as anyone can make them for the
purpose which the contractual visitor is to use it. [Frances v. Cockrell]

* As far as the law relating to the liability of an occupier to an invitee is concerned, the issue is settled by precedent.
An occupier is a person in control or possession of the premises & an invitee is a person who comes to the premises
for a purpose in which the occupier has a material interest. The law states that an occupier owes a duty to an invitee
to take reasonable care to prevent injury to the invitee arising from unusual danger. Danger is unusual so long as it is
not normal for us to expect that danger to be where it is. [Indemaur v. Dames] [Walker v. Midland]

* As far as the law relating to the liability of an occupier to a licensee is concerned, the issue is settled by precedent.
An occupier is a person in control or possession of the premises & a licensee is person permitted to enter premises
for their own purposes not of business or material nature. The law states that an occupier owes a duty to a licensee
to warn him of concealed danger which is not known or not obvious to him. Thus unless it is a hidden trap, there is no
duty. [Mersey Docks v. Procter] [Fairman v. Perpetual Investment] [Lowery v. Walker]

*As far as the law relating to the liability of an occupier to a trespasser is concerned, the issue is settled by
precedent. An occupier is a person in control or possession of the premises, & a trespasser is one who enters the
land without a right nor permission to be there. The law states that if the occupier knew of the trespasser’s presence
or of facts which make that presence reasonably probable, & he knew from the condition of his land that the
trespassers may injure themselves & he is an occupier with vast resources & it will cost little to take care of the risk,
then he owed a duty of common humanity to trespasser. [Herrington v. British Rlwy]

Breach of Duty

In determining whether there has been a breach of the duty of care owed, the standard of care is examined .i.e. the
degree of care required by the defendant in performing the activity from which the negligence action arises. The law
uses the reasonable man as the yardstick for determining the standard of care. The standard of the reasonable man
is an impersonal test and is independent of the idiosyncrasies of the particular person whose conduct is in question.
[Glasgow Corp v. Muir]

Factors used in determining the standard of care include;

Likelihood of Injury: .i.e. whether the defendant is engaged in a dangerous activity. The more dangerous the activity,
the greater the care required. [Bolton v. Stone]

Magnitude of injury: The law requires a degree of care which is proportional to the seriousness of the injury risked.
[Paris v. Stepney]

Importance/ Social Value of Activity or the end to be achieved: Where the end to be achieved is of national
importance or social benefit, the courts lower the standard of care. [Daborn v. Bath Tramway][Watt v. Hertfordshire]

Expense involved in safety measures against the risk: Where there is a great risk which no precaution can
substantially be reduced, the duty of care may be reduced by entirely ceasing operations. Where the risk is slight,
slight precautions may be taken. [Latimer v. AEC]

Compliance with general & approved practice: The standard of care may be reduced if it is shown that the defendant
conformed to standard practices accepted as normal by other members of the community in similar circumstances.
[Roe v. Minister of Health]

Res ipsa Loquitur: Where the circumstances require the defendant rather than the plaintiff to explain what happened,
the plaintiff may rely on res ipsa loquitur. Three conditions must however be satisfied to succeed;

The event must be of a kind which ordinarily would not happen unless someone failed to take care [Sochaki v. Sals]

The defendant must have been in control [Ude v. Bonjut]

There must be no explanation [Barkway v. South Wales] [Adjei v. Yeboah]

Where the maxim applies, the burden shifts to the defendant. [Decker v. Atta] [Dumgya SCC]

Resultant Damage

For there to be damage, the plaintiff must show that he was left worse off than before. [Rothwell v. Chemical
Insulating Co]

Two issues are considered here .i.e. causation & remoteness of damage.

The defendant has to establish a causal connection between the defendant’s lack of care & the damage suffered.
The Balfour Test is applied & it provides that if the plaintiff would have suffered injury in spite of the defendant’s lack
of care, then injury was not caused by the defendant. [Wilsher v. Essex Area Health Authority][Barnett v. Chelsea
Hospital Management Ctee]
Concerning remoteness of damage, two schools of thought arise .i.e. the wagon mound school & the polemis school
of thought. According to the wagon mound rule, the resultant damage must be reasonably foreseeable. [Wagon
Mound Case] The polemis rule on the other hand states that once the defendant breached his duty, he was
responsible for all direct injury arising, & there is no need to determine whether injury was foreseeable. [Re Polemis]
[Smith v. Leech Brain]

Novus Actus Interveniens: If there is an intervening act which the defendant could not have foreseen, then the
defendant was not liable. [Brandon v. Osborne] If the intervening act is something which is likely to happen, it is no
defence. [Haynes v. Harwood]

Elections

Where a person is put in alternative danger & he elects what to him is the less perilous, the defendant is liable if he is
injured. [Jones v. Boyce][Ekow v. Enechukwu][Yeboah v. Yamak]

Defences

Contributory Negligence: S1(1) of the Civil Liability Act provides that where any person suffers damage as a result
partly of the fault of another & partly his fault, a claim in respect of that damage shall not be defeated by reason of the
fault of the person who suffered damage, but the damages recoverable would be reduced to such an extent as the
courts think is just & equitable having regard to the plaintiff’s share of responsibility. [Livox v. Jones Quarries] [Owens
v. Brimmell]

Volenti Non Fit Injuria: If the defendant shows that the plaintiff agreed to the risk taken by the defendant, the plaintiff
would not succeed. [Gyasi v. State Mining Corp] [Bowater v. Rowley Regis Corp]

EMPLOYER’S DUTY TO HIS WORKMEN

There must first exist a duty of care, a breach of that duty & damages arising from the breach [Alhassan Kotokoli v.
Moro Hausa]

The existence of a duty of care is a matter of law & this is determined by precedent, that is, whether the courts have
already held that a duty of care was owed in such circumstances.
In situations where there is no precedent, the courts take into consideration certain principles. The courts identify
reasonable foresight of harm, proximity between the plaintiff & defendant & whether it was fair, just & reasonable.
The first two principles are established by Lord Atkin in Donoghue v. Stevenson & the third in the Caparo Case.

*As far as the law relating to the duty of an employer to his workman is concerned, the issue is settled by precedent.
The law states that an employer owes his workman a threefold duty to provide them with competent fellow workmen,
adequate tools & working gear & a proper system of work.

Duty to provide competent fellow workmen: An employer has a duty to provide workmen competent to deal with the
business as well as dangers that may arise at the workplace. [Black v. Fife Coal Co]

Duty to provide adequate tools & working gear: An employer has a duty to provide workmen with adequate tools &
working gear for the work. He need not manufacture the tools, but may purchase from a reputable supplier. Where
special risks are involved, the employer must take reasonable steps to ensure that his workers use the gear. [Davie
v. New Merton] [Clifford v. Challen] [Smith v. Leech Brain] [Withers v. Perry Chain]

Duty to provide a safe system of work: Includes the role of each worker, the time work should be carried out &
organisation of work. [Kussasi v. Ghana Cargo Handling]

Three tests may be used in determining who an employer is.

Integration/ Organizational Test: Under a contract of service, a person is employed as part of the business & his work
forms an integral part of the business. Under a contract for service, work does not form an integral part of the
business, though it is done for the business. [Stevenson v. MacDonald]

Entrepreneurial Test: The owner of the business & the person taken the financial risk is considered as the employer.
[Mersey Docks v. Coggins]

Control Test: This considers the person who controls the workman as his employer. [Performing Right Society v.
Mitchell & Booker]

Breach of Duty

In determining whether there has been a breach of the duty of care owed, the standard of care is examined .i.e. the
degree of care required by the defendant in performing the activity from which the negligence action arises. The law
uses the reasonable man as the yardstick for determining the standard of care. The standard of the reasonable man
is an impersonal test and is independent of the idiosyncrasies of the particular person whose conduct is in question.
[Glasgow Corp v. Muir]
Factors used in determining the standard of care include;

Likelihood of Injury: .i.e. whether the defendant is engaged in a dangerous activity. The more dangerous the activity,
the greater the care required. [Bolton v. Stone]

Magnitude of injury: The law requires a degree of care which is proportional to the seriousness of the injury risked.
[Paris v. Stepney]

Importance/ Social Value of Activity or the end to be achieved: Where the end to be achieved is of national
importance or social benefit, the courts lower the standard of care. [Daborn v. Bath Tramway][Watt v. Hertfordshire]

Expense involved in safety measures against the risk: Where there is a great risk which no precaution can
substantially be reduced, the duty of care may be reduced by entirely ceasing operations. Where the risk is slight,
slight precautions may be taken. [Latimer v. AEC]

Compliance with general & approved practice: The standard of care may be reduced if it is shown that the defendant
conformed to standard practices accepted as normal by other members of the community in similar circumstances.
[Roe v. Minister of Health]

Res ipsa Loquitur: Where the circumstances require the defendant rather than the plaintiff to explain what happened,
the plaintiff may rely on res ipsa loquitur. Three conditions must however be satisfied to succeed;

The event must be of a kind which ordinarily would not happen unless someone failed to take care [Sochaki v. Sals]

The defendant must have been in control [Ude v. Bonjut]

There must be no explanation [Barkway v. South Wales] [Adjei v. Yeboah]

Where the maxim applies, the burden shifts to the defendant. [Decker v. Atta] [Dumgya SCC]

Resultant Damage

For there to be damage, the plaintiff must show that he was left worse off than before. [Rothwell v. Chemical
Insulating Co]

Two issues are considered here .i.e. causation & remoteness of damage.

The defendant has to establish a causal connection between the defendant’s lack of care & the damage suffered.
The Balfour Test is applied & it provides that if the plaintiff would have suffered injury in spite of the defendant’s lack
of care, then injury was not caused by the defendant. [Wilsher v. Essex Area Health Authority][Barnett v. Chelsea
Hospital Management Ctee]

Concerning remoteness of damage, two schools of thought arise .i.e. the wagon mound school & the polemis school
of thought. According to the wagon mound rule, the resultant damage must be reasonably foreseeable. [Wagon
Mound Case] The polemis rule on the other hand states that once the defendant breached his duty, he was
responsible for all direct injury arising, & there is no need to determine whether injury was foreseeable. [Re Polemis]
[Smith v. Leech Brain]

Novus Actus Interveniens: If there is an intervening act which the defendant could not have foreseen, then the
defendant was not liable. [Brandon v. Osborne] If the intervening act is something which is likely to happen, it is no
defence. [Haynes v. Harwood]

Elections

Where a person is put in alternative danger & he elects what to him is the less perilous, the defendant is liable if he is
injured. [Jones v. Boyce][Ekow v. Enechukwu][Yeboah v. Yamak]

Defences

Contributory Negligence: S1(1) of the Civil Liability Act provides that where any person suffers damage as a result
partly of the fault of another & partly his fault, a claim in respect of that damage shall not be defeated by reason of the
fault of the person who suffered damage, but the damages recoverable would be reduced to such an extent as the
courts think is just & equitable having regard to the plaintiff’s share of responsibility. [Livox v. Jones Quarries] [Owens
v. Brimmell]

Volenti Non Fit Injuria: If the defendant shows that the plaintiff agreed to the risk taken by the defendant, the plaintiff
would not succeed. [Gyasi v. State Mining Corp] [Bowater v. Rowley Regis Corp]

EMPLOYER’S DUTY TO THIRD PARTIES

There must first exist a duty of care, a breach of that duty & damages arising from the breach [Alhassan Kotokoli v.
Moro Hausa]

The existence of a duty of care is a matter of law & this is determined by precedent, that is, whether the courts have
already held that a duty of care was owed in such circumstances.
In situations where there is no precedent, the courts take into consideration certain principles. The courts identify
reasonable foresight of harm, proximity between the plaintiff & defendant & whether it was fair, just & reasonable.
The first two principles are established by Lord Atkin in Donoghue v. Stevenson & the third in the Caparo Case.

*As far as the law relating to the liability of an employer to a third party is concerned, the issue is settled by
precedent. The law states that an employer is liable for the wrongs committed by his employee in the course of
employment.

The employee therefore must have been acting in the course of his employment, & his act must be sufficiently related
to the work he was authorised to do. [Century Insurance v. Northern Island Road Transport] [Beard v. London
Omnibus] [Ricketts v. Tilling]

If the servant was doing an act not authorised by his employer, the employer is not liable but if it is merely a wrong
way of performing an authorised act, the employer would be liable. [Lister v. Hesley Hall]

If an express prohibition given by an employer delimits the scope of the servant’s employment, the prohibition would
be in the course of employment. If it prohibits an improper method of carrying out work, it would be within the course
of employment. [Canadian Pacific Rly v. Lockhart] [Rand Ltd v. Craig]

Breach of Duty

In determining whether there has been a breach of the duty of care owed, the standard of care is examined .i.e. the
degree of care required by the defendant in performing the activity from which the negligence action arises. The law
uses the reasonable man as the yardstick for determining the standard of care. The standard of the reasonable man
is an impersonal test and is independent of the idiosyncrasies of the particular person whose conduct is in question.
[Glasgow Corp v. Muir]

Factors used in determining the standard of care include;

Likelihood of Injury: .i.e. whether the defendant is engaged in a dangerous activity. The more dangerous the activity,
the greater the care required. [Bolton v. Stone]

Magnitude of injury: The law requires a degree of care which is proportional to the seriousness of the injury risked.
[Paris v. Stepney]

Importance/ Social Value of Activity or the end to be achieved: Where the end to be achieved is of national
importance or social benefit, the courts lower the standard of care. [Daborn v. Bath Tramway][Watt v. Hertfordshire]
Expense involved in safety measures against the risk: Where there is a great risk which no precaution can
substantially be reduced, the duty of care may be reduced by entirely ceasing operations. Where the risk is slight,
slight precautions may be taken. [Latimer v. AEC]

Compliance with general & approved practice: The standard of care may be reduced if it is shown that the defendant
conformed to standard practices accepted as normal by other members of the community in similar circumstances.
[Roe v. Minister of Health]

Res ipsa Loquitur: Where the circumstances require the defendant rather than the plaintiff to explain what happened,
the plaintiff may rely on res ipsa loquitur. Three conditions must however be satisfied to succeed;

The event must be of a kind which ordinarily would not happen unless someone failed to take care [Sochaki v. Sals]

The defendant must have been in control [Ude v. Bonjut]

There must be no explanation [Barkway v. South Wales] [Adjei v. Yeboah]

Where the maxim applies, the burden shifts to the defendant. [Decker v. Atta] [Dumgya SCC]

Resultant Damage

For there to be damage, the plaintiff must show that he was left worse off than before. [Rothwell v. Chemical
Insulating Co]

Two issues are considered here .i.e. causation & remoteness of damage.

The defendant has to establish a causal connection between the defendant’s lack of care & the damage suffered.
The Balfour Test is applied & it provides that if the plaintiff would have suffered injury in spite of the defendant’s lack
of care, then injury was not caused by the defendant. [Wilsher v. Essex Area Health Authority][Barnett v. Chelsea
Hospital Management Ctee]

Concerning remoteness of damage, two schools of thought arise .i.e. the wagon mound school & the polemis school
of thought. According to the wagon mound rule, the resultant damage must be reasonably foreseeable. [Wagon
Mound Case] The polemis rule on the other hand states that once the defendant breached his duty, he was
responsible for all direct injury arising, & there is no need to determine whether injury was foreseeable. [Re Polemis]
[Smith v. Leech Brain]
Novus Actus Interveniens: If there is an intervening act which the defendant could not have foreseen, then the
defendant was not liable. [Brandon v. Osborne] If the intervening act is something which is likely to happen, it is no
defence. [Haynes v. Harwood]

Elections

Where a person is put in alternative danger & he elects what to him is the less perilous, the defendant is liable if he is
injured. [Jones v. Boyce][Ekow v. Enechukwu][Yeboah v. Yamak]

Defences

Contributory Negligence: S1(1) of the Civil Liability Act provides that where any person suffers damage as a result
partly of the fault of another & partly his fault, a claim in respect of that damage shall not be defeated by reason of the
fault of the person who suffered damage, but the damages recoverable would be reduced to such an extent as the
courts think is just & equitable having regard to the plaintiff’s share of responsibility. [Livox v. Jones Quarries] [Owens
v. Brimmell]

Volenti Non Fit Injuria: If the defendant shows that the plaintiff agreed to the risk taken by the defendant, the plaintiff
would not succeed. [Gyasi v. State Mining Corp] [Bowater v. Rowley Regis Corp]

DECEIT
The tort of deceit has five elements, as outlined in Kusi v. Kusi

False Representation: The defendant must make a false representation to the plaintiff. Includes half-truths,
ambiguities. [Schneider v. Heath] The representation could be made to a class of persons & not directly at the
plaintiff [Peek v. Gurney]

The defendant must know that the representation is false, or he was reckless as to the truth of the representation.

The defendant must intend that the plaintiff rely on the representation.

Reliance: The plaintiff must rely on the statement. .i.e. He must act partly or wholly due to the statement. [Smith v.
Chadwick]

Damage: The plaintiff must suffer damage [Smith v. Chadwick]

NEGLIGENT MISSTATEMENTS
There must first exist a duty of care, a breach of that duty & damages arising from the breach [Alhassan Kotokoli v.
Moro Hausa]

The existence of a duty of care is a matter of law & this is determined by precedent, that is, whether the courts have
already held that a duty of care was owed in such circumstances.

In situations where there is no precedent, the courts take into consideration certain principles. The courts identify
reasonable foresight of harm, proximity between the plaintiff & defendant & whether it was fair, just & reasonable.
The first two principles are established by Lord Atkin in Donoghue v. Stevenson & the third in the Caparo Case.

*As far as the law relating to liability for negligent misstatements is concerned, the issue is settled by precedent. The
law states that a person giving advice is held to have accepted responsibility for his answer being given carefully.

Thus a reasonable man would have three options available; he may decline to answer, give an answer with a
qualification that he accepted no responsibility for it, or answer without any qualification. [Hedley Byrne v. Heller]
[Assurance Co v. Evatt]

Breach of Duty

In determining whether there has been a breach of the duty of care owed, the standard of care is examined .i.e. the
degree of care required by the defendant in performing the activity from which the negligence action arises. The law
uses the reasonable man as the yardstick for determining the standard of care. The standard of the reasonable man
is an impersonal test and is independent of the idiosyncrasies of the particular person whose conduct is in question.
[Glasgow Corp v. Muir]

Factors used in determining the standard of care include;

Likelihood of Injury: .i.e. whether the defendant is engaged in a dangerous activity. The more dangerous the activity,
the greater the care required. [Bolton v. Stone]

Magnitude of injury: The law requires a degree of care which is proportional to the seriousness of the injury risked.
[Paris v. Stepney]

Importance/ Social Value of Activity or the end to be achieved: Where the end to be achieved is of national
importance or social benefit, the courts lower the standard of care. [Daborn v. Bath Tramway][Watt v. Hertfordshire]
Expense involved in safety measures against the risk: Where there is a great risk which no precaution can
substantially be reduced, the duty of care may be reduced by entirely ceasing operations. Where the risk is slight,
slight precautions may be taken. [Latimer v. AEC]

Compliance with general & approved practice: The standard of care may be reduced if it is shown that the defendant
conformed to standard practices accepted as normal by other members of the community in similar circumstances.
[Roe v. Minister of Health]

Res ipsa Loquitur: Where the circumstances require the defendant rather than the plaintiff to explain what happened,
the plaintiff may rely on res ipsa loquitur. Three conditions must however be satisfied to succeed;

The event must be of a kind which ordinarily would not happen unless someone failed to take care [Sochaki v. Sals]

The defendant must have been in control [Ude v. Bonjut]

There must be no explanation [Barkway v. South Wales] [Adjei v. Yeboah]

Where the maxim applies, the burden shifts to the defendant. [Decker v. Atta] [Dumgya SCC]

Resultant Damage

For there to be damage, the plaintiff must show that he was left worse off than before. [Rothwell v. Chemical
Insulating Co]

Two issues are considered here .i.e. causation & remoteness of damage.

The defendant has to establish a causal connection between the defendant’s lack of care & the damage suffered.
The Balfour Test is applied & it provides that if the plaintiff would have suffered injury in spite of the defendant’s lack
of care, then injury was not caused by the defendant. [Wilsher v. Essex Area Health Authority][Barnett v. Chelsea
Hospital Management Ctee]

Concerning remoteness of damage, two schools of thought arise .i.e. the wagon mound school & the polemis school
of thought. According to the wagon mound rule, the resultant damage must be reasonably foreseeable. [Wagon
Mound Case] The polemis rule on the other hand states that once the defendant breached his duty, he was
responsible for all direct injury arising, & there is no need to determine whether injury was foreseeable. [Re Polemis]
[Smith v. Leech Brain]
Novus Actus Interveniens: If there is an intervening act which the defendant could not have foreseen, then the
defendant was not liable. [Brandon v. Osborne] If the intervening act is something which is likely to happen, it is no
defence. [Haynes v. Harwood]

Elections

Where a person is put in alternative danger & he elects what to him is the less perilous, the defendant is liable if he is
injured. [Jones v. Boyce][Ekow v. Enechukwu][Yeboah v. Yamak]

Defences

Contributory Negligence: S1(1) of the Civil Liability Act provides that where any person suffers damage as a result
partly of the fault of another & partly his fault, a claim in respect of that damage shall not be defeated by reason of the
fault of the person who suffered damage, but the damages recoverable would be reduced to such an extent as the
courts think is just & equitable having regard to the plaintiff’s share of responsibility. [Livox v. Jones Quarries] [Owens
v. Brimmell]

Volenti Non Fit Injuria: If the defendant shows that the plaintiff agreed to the risk taken by the defendant, the plaintiff
would not succeed. [Gyasi v. State Mining Corp] [Bowater v. Rowley Regis Corp]

DEATH IN RELATION TO TORTS

S16 of the Civil Liability Act governs the law on death in relation to torts.

16(1) - Where the death of a person is caused by the fault of another that would have entitled the party injured, but
for the death, to maintain an action and recover damages the person who would have been so liable is liable to an
action for damages for the benefit of the dependants of the deceased. Thus this would not apply if the act was not
wrongful, or if the deceased lived long enough to sue the wrongdoer.

16(2) - Only one action may be brought in respect of the death.

16(3) - The action may be brought by the personal representative of the deceased or if, at the expiration of six
months from the death, any of the dependants if the personal representative has not taken office or an action has not
been brought by the personal representative of all or any of the dependants.
If compensation was paid by the wrongdoer to the deceased while he was alive & he received it in full satisfaction, an
action would not lie. [Read v. Great Eastern Rly]. If the agreement limits the amount the deceased would have
received, the dependants may sue. [Nunan v. Midland Rly]

Dependants may only claim for reasonable expectation of pecuniary advantage, not a speculative possibility. [Blake
v. Midland Rly] [Barnet v. Cohen] [Taff Vale Rly Co v. Jenkins]

Incomplete….

LIBEL
Prove that statement is defamatory

Plaintiff must show that statement is capable of a defamatory meaning. Four tests namely;

*Words must be a false publication without justification or lawful excuse, calculated to injure the reputation of another
by exposing him to hatred, ridicule or contempt. [Parmiter v. Coupland]

*Words must cause others to shun your company. [Youssoupoff v. MGM Pictures] [Villers v. Monsley] [Byrne v.
Dean]

*Words used damage a person in his profession, business, office or trade. [Tournier v. National Provincial Bank]
[Jones v. Jones]

*The words would lower the plaintiff in the estimation of right-thinking members of society. [Sim v. Stretch]

Interpretation of the words to determine whether they are actually defamatory

The words must be given their natural & meaning in context except where innuendo is pleaded & if it paints the
plaintiff in an adverse light, they are defamatory. An innuendo is an allegation that the words were used in a
defamatory sense other than their ordinary meaning & must be founded on facts & matters & not only on
interpretation. True innuendo- Extrinsic facts were to known to a group, making the words defamatory. [Cassidy v.
Daily Mirror Newspaper] [Lewis v. Daily Express] [Hough v. London Express Newspaper]

Reference
The plaintiff must show that something in the defamatory statement referred to him. Where the statement is directed
at a group of persons, problems arise in identifying who it is directed to. The size & of the class of persons matters
thus the bigger the class the more difficult to identify. [Le Fanu v. Malcolmson] [Knupfer v. London Express]
[Newstead v. London Express]

Publication

The defamatory words must be published, i.e. they must be made known to at least one person other than the one
about whom they are spoken. There would be no publication if a third party eavesdrops, no publication occurs. [Huth
v. Huth]The defendant would be held to have published statements which he intends a third party to know or should
have foreseen that it might come to his attention. [Pullman v. Hill] [Theaker v. Richardson] Each sale of material
containing the defamatory statement is a fresh publication. [Sadgrove v. Hole] [Vizetelly v. Mudie’s Select Library] A
vendor in the ordinary course of his business is not liable if he can prove he did not know it contained libel & his
ignorance was not based on negligence. [Emmens v. Pottle]

Actionable per se: No need to show damage once the tort is established

SLANDER
Prove that statement is defamatory

Plaintiff must show that statement is capable of a defamatory meaning. Four tests namely;

*Words must be a false publication without justification or lawful excuse, calculated to injure the reputation of another
by exposing him to hatred, ridicule or contempt. [Parmiter v. Coupland]

*Words must cause others to shun your company. [Youssoupoff v. MGM Pictures] [Villers v. Monsley] [Byrne v.
Dean]

*Words used damage a person in his profession, business, office or trade. [Tournier v. National Provincial Bank]
[Jones v. Jones]

*The words would lower the plaintiff in the estimation of right-thinking members of society. [Sim v. Stretch]

Interpretation of the words to determine whether they are actually defamatory

The words must be given their natural & meaning in context except where innuendo is pleaded & if it paints the
plaintiff in an adverse light, they are defamatory. An innuendo is an allegation that the words were used in a
defamatory sense other than their ordinary meaning & must be founded on facts & matters & not only on
interpretation. True innuendo- Extrinsic facts were to known to a group, making the words defamatory. [Cassidy v.
Daily Mirror Newspaper] [Lewis v. Daily Express] [Hough v. London Express Newspaper]

Reference

The plaintiff must show that something in the defamatory statement referred to him. Where the statement is directed
at a group of persons, problems arise in identifying who it is directed to. The size & of the class of persons matters
thus the bigger the class the more difficult to identify. [Le Fanu v. Malcolmson] [Knupfer v. London Express]
[Newstead v. London Express]

Publication

The defamatory words must be published, i.e. they must be made known to at least one person other than the one
about whom they are spoken. There would be no publication if a third party eavesdrops, no publication occurs. [Huth
v. Huth]The defendant would be held to have published statements which he intends a third party to know or should
have foreseen that it might come to his attention. [Pullman v. Hill] [Theaker v. Richardson] Each sale of material
containing the defamatory statement is a fresh publication. [Sadgrove v. Hole] [Vizetelly v. Mudie’s Select Library] A
vendor in the ordinary course of his business is not liable if he can prove he did not know it contained libel & his
ignorance was not based on negligence. [Emmens v. Pottle]

Proof of damage is required for the plaintiff to succeed.

Special Damage

The plaintiff must have suffered a material loss as a result of the defamation. Material loss refers to loss that can be
quantified in money. [Allsop v. Allsop] [Coward v. Mellington] [Storey v. Challands]. There must be a causal
connection between the damage & the slander. The test is reasonable foreseeability of harm [Lynch v. Knight]

Exceptions

There are however exceptions to this rule that are actionable without proof damage.
Imputation of crime: Where a person orally imputes that the plaintiff has committed a crime for which he could be
imprisoned or suffer death. [Hellwig v. Mitchell] [Webb v. Beavan] [Chuku v. Nkrumah]

Imputation of a loathsome disease: [Bloodworth v. Gray] [Taylor v. Perkins]

Slander in respect of an office, profession, trade or business: Where words are uttered about a person & they tend to
disparage him in his office, profession or business. [Jones v. Jones]

Imputation of unchastity:

Defences

Absolute Privilege: Conversation is privileged based on the occasion the statement is made, the nature of the
communication or the writer.

 *Executive matters: Communications related to state matters [Atitsogbe v. Harley]

 *Judicial proceedings: Statements made from the Bar & statements made before tribunals, committees &
commissions are privileged. [Scott v. Stanfield]
 *Legislative Proceedings: All proceedings in parliament are absolutely privileged & parliamentarians enjoy
immunity for statement made in Parliament. [Church of Scientology v. Johnson-Smith]
 *Solicitor-Client Communications:

Qualified Privilege: Five categories

Words relating to matters of common interest: [Hunt v. Great Northern Rly]

Words protecting the interest of the publisher: [Osbourne v. Boutler]

Words protecting the interest of another: The defendant must have a duty to make that statement [Watt v. Longdon]

Public Interest: [Wason v. Walter] [Enahoro v. Associated Newspapers]

Misconduct of public official: [Harrison v. Bush]

Malice: Qualified privilege can be destroyed by proof of malice. [Groom v. Cocker]

Excess of privilege: Qualified privilege would be defeated by excess of privilege. Eg. Where defamatory material is
distributed beyond persons who should legitimately receive it. [Adam v. Ward] [Tackyie v. Kabbah]

Inadequacies would not undermine qualified privilege [Tsikata v. Independent Newspapers]

Fair Comment: Comments or criticism on matters of public interest made honestly without malice. Three conditions
must be satisfied;

Comment must be on a matter of public interest: [Seymour v. Butterworth]

Comment must be based on fact: [Thomas v. Bradbury]. If it contains a defamatory factual statement, it must be
justified. It must be based on true facts [Kemsley v. Foot]

Comment must be an opinion: [Boohene v. Abeyie] [Turner v. MGM Pictures] [Slim v. Daily Telegraph]

Justification: Where the defendant asserts that the publication is true, he must establish the truth of the material
elements. [Wakley v. Cooke] Absolute defence.

Consent: A party who consents to the publication of the defamatory matter cannot succeed in an action.