ZAMBIA OPEN UNIVERSTY

NAME: ANGELA NAMASIKU

COURSE: LAW OF TORT

STUDENT NO: 21911785

SEMESTER: 1

YEAR OF STUDY: 2020

LECTURER: MR JULIUS NKHUWA

EMAIL ADDRESS: namasikuangela91@gmail.com

CONTACT: 0977407652

DUE DATE: 11th DECEMBER 2020

QUESTION 1

This essay is aimed to discuss negligence based on the case of Roberts’s v Rams bottom.

FACTS

Rams bottom the defendant suffered cerebral hemorrhage unknown to him, he entered and drove
his car to town, and he was unaware throughout that he was unfit to drive but his consciousness
was impaired or clouded. He was aware of his surrounding and the traffic conditions though he
made series of deliberate and voluntary inefficient movements with his hand to manipulate the
car controls. He suddenly experienced feeling of queerness and collided with a stationary
vehicle, still unaware that he was fit to drive he drove away and collided into another parked car
on the road side as a result the parked car to Robert was damaged and Roberts together with her
passengers were injured. The plaintiff sued for loss and the personal injury caused by the
defendants negligent driving. The defendant denied negligence and pleaded that he was in a state
of automatism and was not responsible for his action.

It was held that in an action for negligence for a car driver , the standard of care by which his
actions where to be judged was an object standard and that, albeit he would be able to escape
liability if his actions at the relevant time were beyond his control so as to amount automatism in
law. Thus the defendant Rams bottom was held liable.

Having stated the facts of the case above, it’s only fair that we discuss negligence. Negligence as
a tort is a breach of a legal duty to take care which results in damage to the claimant. For one to
be successful in the claim of negligence they must be (I) a legal duty owed,(2) breach of that
duty, (3) consequential damage.

DUTY OF CARE

A duty arises when the law recognizes a relationship between the two parties, and due to this
relationship one party has the obligation to exercise the same level of reasonable care that
another person in the same situation would exercise. This was seen in the neighbor principle that
Lord Atkins formulated from the case of Donoghue v Stevenson. It states that you must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbor. Who, then, in law is my neighbor? The answer seems to be-persons who
are so closely and directly affected by my act that 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.

The facts of Donoghue v Stevenson were that a manufacturer of ginger beer sold to a retailer
ginger beer in an opaque bottle. The retailer resold it to A, who treated a young woman of her
acquaintance with its contents. It was alleged that these included the decomposed remains of a
snail which had found its way into the bottle at the factory. The young woman alleged that she
became seriously ill in consequence and sued the manufacturer for negligence. The House of
Lords held that the manufacture was liable.

BREACH OF DUTY

This is the element for the court to determine if the defendant breached a duty of care by doing
or not doing what a reasonable man can do in a similar circumstance. In the case of Blyth v
Birmingham waterworks Co, Negligence is the omission to do something which a reasonable
man, guided upon those considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man would not do. An example of
the question of whether someone did absolutely everything a reasonable person would do is
illustrated in the case of Goldman v. Hargrave where, in dealing with the liability of the
defendant for failing to extinguish a fire started on his land by natural causes, the Privy Council
held that the standard was what It was reasonable to expect of him in his individual
circumstances. "Less must be expected of the infirm than of the able-bodied ... [and the
defendant] should not be liable unless it is clearly proved that he could, and reasonably in his
individual circumstances should, have done more.

The likelihood of harm occurring; as seen in the case of Bolton v. Stone where the claimant
was standing on the highway in a road adjoining a cricket ground when she was struck by a ball
which a batsman had hit out of the ground. Such an event was foreseeable and, indeed, balls had
to the defendant's knowledge occasionally been hit out of the ground before. Nevertheless, taking
into account such factors as the distance from the pitch to the edge of the ground, the presence of
a seven foot fence and the upward slope of the ground in the direction in which the ball was
struck, the House of Lords considered that the likelihood of injury to a person in the claimant's
position was so slight that the cricket club was not negligent in allowing cricket to be played
without having taken additional precautions such as increasing the height of the fence. As Lord
Reid said: "I think that reasonable men do in fact take into account the degree of risk and do not
act upon a bare possibility as they would if the risk were more substantial."

Damage: when the defendant breaches his duty of care owed to the plaintiff the resultant harm is
called damage, this was illustrated in the case of Michael Chilufya Sata v Zambian bottlers,
where the plaintiff didn’t not drink the beverage thus he didn’t suffer any damage. Therefore the
defendant was not liable.

In conclusion Rams bottom was liable because he failed to act like a reasonable being would
under such circumstances.
QUESTION 4

DEFINE ASSAULT: Assault is an act of the defendant which causes the claimant reasonable
Apprehension of the infliction of a battery on him by the defendant. To throw water at a person is
an assault but if any drops fall upon him it is battery": riding a horse at a person is an assault but
riding it against him is a battery. Pulling away a chair, as a practical joke, from one who is about
to sit on it is probably an assault until he reaches the floor, for while he is falling he reasonably
expects that the withdrawal of the chair will result in harm to him. When he comes in contact
with the floor, it is a battery. Therefore having said the above statements it is clear that assault
has elements.

APPREHENSION

Apprehension in simpler terms is the fear that the defendant inflicts in the clamant. It is
irrelevant if the claimant is courageous and is not frightened by the threat or that he could easily
defeat the defendant's attack: "apprehend" is used in the sense of "expect". The claimant must,
however, have reason to apprehend that the defendant has the capacity to carry out the threat
immediately

Apprehension was clearly illustrated in the case of Stephens v. Myers the defendant, advancing
with clenched fist upon the claimant at a parish meeting was stopped by the churchwarden, who
sat next but one to the claimant. The defendant was held to be liable for assault.

Another case that illustrates more about assault is that of R v. Ireland, where the court in
Ireland went further and held that an assault could be committed by malicious silent telephone
calls. The defendant's purpose was to convey a message to the victim just as surely as if he had
spoken to her, the victim is assailed by uncertainty about his intentions. Fear may dominate her
emotions, and it may be fear that the caller's arrival at her door may be imminent. She may fear
the possibility of immediate personal violence.

Another case that illustrates assault is that of DPP V K, the facts where that the defendant was a
15 year old school boy who stole a dangerous chemical substance from the lab. However when
he was in the bathroom and heard someone coming he panicked. Eventually he poured it in the
dryer intending to clear it later, subsequently the next user was sprayed in the face, and therefore
the defendant was charged with assault.

It was held that the defendant’s action in taking the risk that the machine would be used
subsequently by another before he could render it safe amounted to recklessness

In conclusion from the cases above assault committed against Philip, because the hard look he
was given made him have fear which resulted into him exiting in a rush through the back room
of the door.
QUESTION 5

Defamation is defined as any intentional false communication, either written are spoken, that
harms a person’s reputation decreases the respect, regard or confidence in which a person is held;
or induces disparaging, hostile or disagreeable opinions or feelings against a person is known as
defamation. In simpler terms defamation is the act of making untrue statement about another
which damages his / her reputation; there are two types of defamation, slander and libel. Slander
is a form of defamation which is by word of mouth whilst libel is published defamation. For a
person to sue for defamation certain essentials have to be proven. Below are the elements one
has to prove for the victim to win a law suit.

Statement: there must be a statement which can be spoken, written, pictured or even gestured
for someone to win the lawsuit of defamation.

Publication: for statement to be published a third party must have seen, heard or read the
defamatory statement. If there is no publication then there is no injury of reputation thus no
action will arise.

Injury: the above statement must have caused an injury to the subject of the statement. This
means that the statement must tend to injure the reputation of the person to whom it refers.

Falsity: the defamatory statement must be false; if the statement is not false then it will not be
considered as a defamatory statement.

Unprivileged: in order for the statement to be defamatory, the statement must be unprivileged;
this is a certain circumstance where one cannot sue someone for defamation.

Therefore making reference to statutes and decided cases Mr. Kasumba has an available defense
of privilege. Privilege is defined is defined by the oxford dictionary of law as special rights and
immunities enjoyed by the house of parliament and their members which enables them to carry
out their functions effectively and without external interference and another definition states that
these are legal immunities upon members of the legislature with regard to acts they may perform
in the legislature or on its behalf. From the two definitions above it is clear that parliamentary
privileges are basically conferred on legislatures as means to ensure freedom of expression
through speech in the house as members represent their constituents. In a society deemed to be
democratic freedom of expression is important as it gives the citizen through their
representatives the power to bring to light the malpractice in the process of governance. This
freedom ensures that the executive is held to account for their every administrative function and
it also ensures that members can speak in the house against a president without the fear arrest or
imprisonment. Members of the house can make accusation to the department of the president for
the misconduct and that would not amount to any defamation as the statements would be made
within the area of privilege.
Article 76(1) provides for the existence of privileges, powers and immunities for the national
assembly and its members, whose actual provision is provided the national assembly act, cap 12.
Article 76(1) states that a member of parliament has freedom of speech and debate in the national
assembly and that freedom shall not be ousted or questioned in a court or tribunal.(2) a member
of parliament shall have the powers , privileges and immunities , as prescribed.

The national assembly (powers and privilege) Act, cap 12, is an act to declare and define certain
powers, privileges and immunities of the national assembly ; to secure freedom of speech in the
national assembly; to regulate admittance to the precincts of the national assembly; to give
protection to the persons employed in the publication of the reports and other papers of the
national assembly; and to provide for matters incidental to or connected with the foregoing.

Freedom of speech

Freedom of speech as stated above is cardinal for the smooth function of a democratic society,
part II of the National Assembly act , section 3 states that there shall be freedom of speech and
debate in the national assembly, such freedom of speech and debate shall not be liable to be
questioned in any court or place outside the assembly. Then section 4 of the same act immunes
the house and its members from any civil or criminal proceedings one would want to bring
against a member doing an act within his line of duty. This was illustrated in the case of peter
Siwo v Times Newspaper Zambia ltd where the appellant sued the respondent for damages of
libel, the alleged libel arose out of news item headed we will deal with TAW culprits and an
opinion column published by the respondent, which alleged that the appellant had connived to
swindle the government and plunder the people of Zambia for his own ends. Both the story and
the opinion where made based on the statement made by the Attorney General to the national
assembly in which he disclosed that the appellant had greatly contributed to the government
losing a breach of contract case to TAW international leasing Inc. The respondent argued that the
statement was fair and accurate report of proceeding in public in the National Assembly and
published on the occasion of privilege; alternatively that the words were true and a fair comment,
the high court dismissed the action for libel and the appellant appealed to the supreme court on
the ground of absolute privilege could not avail the respondent because the Attorney –General in
his statement to the national assembly had not used the phrase connived to swindle or said that
the appellant was plundering society for his own ends.

It was held that where privilege word could lead to a reasonable interference that the defendant
was guilty of certain activities, it is not actionable to make reasonable comments thereon.

FREEDOM FROM ARREST

This is the need for protection from arrest since the Member of the house would be exercising
their freedom of speech within the house. This is when a member can criticize the president
minus the fear of being arrested for defamation, under the Defamation Act Cap 68. Section 5
states that for the duration of a meeting, members shall enjoy freedom from arrest for any civil
debt except a debt, the contraction of which constitutes a criminal offence. This was illustrated in
the case of Prebble v television news Zealand ltd, where the plaintiff an MP pursued a
defamation case, the defendant wished to argue for the truth of what was said, and sought to base
his argument on things said in parliament. The plaintiff responded that this would be a breach of
parliamentary privileges.

In conclusion it can be said that defamatory statements made by a member of the house under
his or her line of duty are not considered defamatory for he or she is under privilege to perform
his job without fear of arrest.
QUESTION 6

First and foremost, it is important for one to understand the basic meaning of this discussion that
is about strict liability as laid down the case of Ryland v Fletcher. Strict liability is liability for a
wrong that is imposed without the plaintiff having to prove that the defendant was at fought.
Thus in tort, strict liability is imposed for torts involving dangerous things and animals as this
was seen in the case of Ryland v Fetcher.

RYLAND V FLETCHER

The defendants hired independent contractors to build a reservoir on their land, the contractors
found disused mines and failed to seal them properly, and they filled the reservoir with water. As
a result, water flooded through the mine shafts into the plaintiff’s mine on the adjoining property.
The plaintiff secured a verdict at Liverpool assizes. The courts of Exchequer Chambers held the
defendant liable and the House of Lords affirmed their decision.it was stated by Blackburn that
for this tort to succeed these elements must be proven

 The defendant brought something on the land

 He made a non-natural user on his land
 The thing is something that is likely to cause mischief if it escapes
 That they was in fact an escape
 The thing did escape must be hazardous in the event of an escape

According to Winfield the principle of strict liability states that, the person who for his own
purpose brings on his land and collect and keeps there anything likely to do mischief if it
escapes, must keep it at his own peril and if he does not do so, prima facie answerable for all the
damages which is the natural consequence for its escape.

DANGEROUS THING

The question impose here is what are some of the dangerous things. The dangerous thing can be
fire, gas blasting, ammunitions, elements, oil, noxious fumes and water as well. The dangerous
thing must rely on the factual decided by Blackburn on whether the thing is likely to do mischief
if it escapes.

THE THING MUST BE ON THE LAND

It is important to note that the thing must be put deliberately on the land otherwise the plaintiff
cannot succeed the claim for damages caused by the thing, this rule does not apply to the case
where the defendant is the free holder of the land where the dangerous thing is accumulated but
applies to places owned by the defendant or where the defendant has a franchise or statutory
right. In Ryland v fletcher the dangerous thing escaped from the defendant’s land that’s why it
was easy to hold them liable unlike in the case of Reads v Lyons where the thing was within the
land.
NON – NATURAL USE

In this element the thing brought on to the defendants land must bring with it increased damages
to others and must not merely be ordinary like the use of land or such a use for the benefit of the
community.

THE ESCAPE

The requirement of escape was firmly set in the law by the House of Lords' decision in Read v.
J. Lyons & Co. Ltd. The claimant was employed by the Ministry of Supply as an inspector of
munitions in the defendants ‘munitions factory and, in the course of her employment there, was
injured by the explosion of a shell that was being manufactured. It was admitted that high
explosive shells were dangerous. The defendants were held not liable. There were no allegation
of negligence on their part and Ryland v. Fletcher was inapplicable because there had been no
"escape" of the thing that inflicted the injury. "Escape" was defined as "escape from a place
where the defendant has occupation or control over land to a place which is outside his
occupation or control.

CAUSE DAMAGE

In Ryland v fletcher the decision of the court was based on the grounds that there was damage on
the land of the plaintiff due to the negligence of the defendant’s employees when they did not
seal the disused mines of the plaintiff which later on filled with water then caused damage to the
plaintiff’s land.

In conclusion they are defenses put in place for strict liability and these are the following.

VOLENTI NON FIT INJURIA

Where the claimant has expressly or impliedly consented to the presence of the source of danger
and there has been no negligence on the part of the defendant, the defendant is not liable. The
exception merely illustrates the general defense, valenti non fit injuria. The main application of
the principle of implied consent is found in cases where different floors in the same building are
occupied by different persons and the tenant of a lower floor suffers damage as the result of
water escaping from an upper floor, “In a block of premises each tenant can normally be
regarded as consenting to the presence of water on the premises if the supply is of the usual
character, but not if it is of quite an unusual kind, or defective or dangerous, unless he actually
knows of that. The defendant is liable if the escape was due to his negligence

COMMON BENEFIT

Where the source of the danger is maintained for the common benefit of the claimant and the
defendant, the defendant is not liable for its escape. The Cambridge Water case" suggests that
the rule may be inapplicable to the provision of services to a defined area such as a business park
or an industrial estate, but this statement is made in the context of non-natural use. The view that
there is a defense consumers of a generally- supplied service like gas or electricity seems
inconsistent with that of common benefit.

ACT OF STRANGER

According to Chief Baron Kelly, the defendant cannot be held liable for the damages caused by a
third party over whom the defendant had no control.