CAVENDISH UNIVERSITY ZAMBIA

SCHOOL OF LAW

COURSE:CUZL213- Nominate Torts

LECTURER: FRAZER MOONDE
CELL:0977375903
Email: fmoonde@cavendish.co.zm

SUMMARISED LECTURE NOTES

Topic -1: Negligence
1. Meaning of Negligence
The learned authors of “Charles worth and Percy on negligence “write that the word
‘negligence’ has three (3) meanings at law as follows:
 A state of mind in which it is opposed to intention
 Careless conduct
 The break of duty to take care that is imposed by either common law or statute law
Negligence is simply neglect of some care which we are bound by law to be exercise towards
somebody. As a tort, negligence is breach of a legal duty to take care which results in damage to
the claimant.
To succeed under the tort of negligence, the plaintiff must prove the following elements:
 Owing of duty of care by the defendant
 Breach of duty of care
 Damage
These are discussed below.
Duty
The word ‘duty’ connotes the relationship between one person and another imposing on the one
obligation; for the benefit of that other; to take reasonable care in all the circumstances.
The fundamental question to ask is does the defendant owe the plaintiff duty of care?” The case
of Donoghue v Stevenson[1932]AC562Laid down the foundation to answer the foregoing
question.
It is not every careless act that a person may be held responsible in tort law nor even for every
careless act that careless act that causes damage.

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The defendant will only be liable in negligence if they are under a legal duty of care (lamb v
Camden LBC [1981]QB 625).
The following tests have developed to help in discovering as to whether a duty of care existed
and whether the claimant was within the ambit of that duty of care. These are:
 The Neighbour Principle
The duty of care can be established using the neighbor principle. A neighbor is only person
of persons who are so closely and directly affected by the acts of the defendant that the
defendant ought reasonably to have them in contemplation as being affected when that
defendant is directly his or her mind to the acts of omissions which are called in question
(Donoghue V Stevenson).
 Reasonable Foresight Test
If a reasonable man could have foreseen the consequences of the act then the defendant is
liable. If on the other hand, a reasonable man could not have foreseen the consequences,
then they are too remote and hence the defendant is not liable.

-Grant v Australian Knitting Mills Ltd (1936) AC85

-Herschtal v Steward and Arden ltd (1940) 1 kb 155 at p.160
-Mcloughlin v O Brian (1983) 1 AC 410
-Re Polemis and Funis Co. (1921) 3 KB 560

 The Caparo Test

This three stage test was developed in the celebrated case of Caparo Industries Plc V
Dickman (1990) 2 AC 605 to refine the two tests above and iron out the crease brought
by them. Under this test for a duty of care to arise.
 The loss must be reasonably foreseable
 There must be a relationship between the defendant and the plaintiff
 It must be fair, just and reasonable that the law should impose a duty.

Breach
The breach of the duty of care occurs when the defendant fails to meet the required standard of
recognised behavior in human endeavor and the standard of care that is required is that of an
ordinary prudent or reasonable person(Goldman V Hargrave (1966) 2 ALL BR 989). The
question that is asked here is “has the defendant breached that duty?” The key elements that must
be determined in order to show breach of duty are:
 The Reasonable Man’s Test
The question here is whether the defendant acted as any reasonable person would have
acted under similar circumstances. If the defendant acted reasonably then there is no

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 breach of duty of care. On the other hand, if the defendant acted unreasonably, then there
is breach of duty of care.
 Standard of Care
Once it has been shown that a duty take care arises, it becomes necessary to inquire how
much care the law requires to be exercised (Goldman V Hargrave [1967] 1 AC 645).
The standard of care is a question of law but whether or not, n any given case that
standard has been attained is a question of fact for the judge to decide, having regard to
all the circumstances of the case (Qualcast Ltd V Haynes [1959] AC 743). In assessing
the standard of care, the court will also take into account the following matters:
1.The likelihood of harm occurring
2.The seriousness of the consequences if the defendant fails to take care.
 Evidence of negligence
It is for the plaintiff to prove, on a balance of probabilities, that the defendant was
negligent.However, sometimes, it is open for the court to infer negligence from the
circumstances in which the accident occurred – this is the rule of evidence in negligence
(and not a tort or defence) known as res ipsaloguitur. It operates like the presumption
operate and disappear like a bursting bubble once it serves its purpose or when countered.
See the case of (Scott v London [1865] 3 H).
Three (3) condition must be proved in order for res ipsa loquitur to apply. These are:
 There must be an absence of an explanation form the defendant as how the accident
happened.
 The ‘thing’ which caused the damage must be under the control (or management) of the
defendant (or servants to the defendant)
 The accident must be such as would not ordinarily occur without negligence.
Damage
After proving duty of care and breach of that duty, the plaintiff must go on to prove that they
suffered damage. Damage means that the plaintiff suffered loss or injury as a result of the breach
of duty by the defendant. Damage must not be remote. Tests have been developed in order to
show that the damage caused was as a result of the defendant’s negligent act. There are:
 Causation
By causation, we mean that the acts or omissions of the defendant produced the damage
or injury or loss of the plaintiff. Read the case of Roe V Minister of Health [1954] 2 All
ER131.
Causation, maybe causation in fact and causation in law. Under causation in fact, the
plaintiff must show that, as a matter of fact, that the defendants breach of duty caused the
harm. While, under causation in law, the plaintiffs must prove that the damage occurred
to him was caused by the defendant who owed him a duty of care and that the damage
was not too remote to the wrongful act (Barnet vChelsea and Kenrington Hospital
Management Committee [1969] 1 QB428).

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  `But for` Test
The question that is asked here is “But for the defendant’s actions, would the harm
suffered by the plaintiff occurred?” (Cork v Kirby Machean Ltd)
 Novus Actus Interveniens
This simply means a new act intervening. For the defendant to be liable alone, the chain
of event leading to causation must not break. Whether or not an act is sufficient to
amount to a new intervening act is a question of fact arrived at after analysis of all the
surrounding circumstances (Bakes V Willougby [1970] AC 467). If there is a break of
chain of events, liability may be apportioned between all the parties involved (Wright v
Lodge and Shepherd [1993] 4 All OR 299)
 Egg- Shell Skull Rule
This rule simply provides that the defendant takes the victim as they find them and that
the defendant may not be allowed to chain that the plaintiff was susceptible to injury as
they either had abnormally sensitive infirmities (Smith v Leech Brian and Co.Ltd
[1962] 2 QB 4050.
 Remoteness of Damage
If damages are too remote, then the defendant is not liable (Liesbosch Dredger v Edison
SS [1933] AC 440).
2. Pure Economic Loss
An injured party is generally entitled to damages for their finacial loss both actual and
prospective (Liffen vAtson [1940] 1 KB 556). Financial loss must be consequent upon the
negligent conduct of the defendant resulting in injury to the person or to the goods and property
to the plaintiff (Cattle v Stockton Waterworks Co. [1875] L.R. 10). The plaintiff can recover
heads of damage like loss of earnings where an injury makes the plaintiff unable to work,
medical costs and other costs incurred from treatment or clinical care as well as loss of profits
(Hedly Byrne & Co. Ltd V Heller & Partners Ltd. [1964] AC 465).
3. Psychiatric Illness (Nervous Shock)
This is a branch of negligence where the plaintiff`s claim is that they suffered psychiatric or
mental illness as a result of the act of the defendant (Wilkinson V Downtown [1897] 2 PB 57).
4. Defences
The following are the defences available to the defendant in an action for negligence:
 Movus Actus Intervenieus
 Volenti Non Fit Injuria
 Contributory Negligence
 Act of God
 Inevitable Accident

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5. Remedies
The following remedies are available to the plaintiff:
 Damages
 Injunction
Topic – 2: Trespass to Goods
1. Meaning of trespass to Goods
Trespass to goods is a wrongful physical interference with the goods in possession of another
(Fouldes V Willougby [1841] 8 M & W 538). Trespass is an interference with possession, it
follows that if the plaintiff was not in possession (actual or Constructive) at the date of the
alleged meddling, they cannot sue for trespass.
2. Types of Trespass to Goods
There are two (2) main types of trespass to goods, namely;
 Conversion
 Detinue
These are briefly discussed below.
Conversion
Conversion is committed when the defendant deals with the goods of the plaintiff which deprives
the plaintiff of the use or possession of those goods. It is committed when the defendant
wrongfully takes possession of the goods or wrongfully disposes them, or wrongfully misuses
them, or destroys them or wrongfully refuses to give them back when demanded. There must be
a deliberate act of depriving the plaintiff of their rights in relation to goods. It must be a willful
interference, without lawfuljustification, with the property and hence the act is deliberate
(Hollins V Fowler [1875] LR7)
Detinue
Detinue is the unlawful retention of goods belonging to another thereby denying them the right
to possession of the same goods. The defendant may have obtained the goods with the
permission of the plaintiff but fails or refuses to return them when asked.

3.Defences
The following defenses are available to the defendant to avoid liability under trespass to goods:
 Jues tertii
This simply translates “the right of third party”. Under this defense, the defendant pleads
that some third party has a superior title to that of the plaintiff’s (Armory v Declaration
[1722] EWHC 594)

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  Authority of law such as bailiffs and through court orders.
 Abatement of nuisance
4. Remedies
The following remedies are available to the plaintiff’s under trespass to goods:
 Damages
 Redelivery
 Retaking of goods (Recaption)
 Replevin (Howard v British Board [1980] 1WLR 1375)

Topic-3: Trespass to Land

1. Meaning of Trespass to land
Trespass to land occurs when there is an unjustified interference with the possession of
land (Powler v Lanning [1959] 1 QB426). This trespass to land is committed by either
entering upon the land in possession of the plaintiffs unlawfully, or remaining upon such
land when asked to vacate the land or by merely placing any object upon that land- in any
of these cases without lawful justification, among others. It is actionable perse as it does
not require the defendant to prove actual damages (Entick v Carrington [1765] 2 Wills
KB 275)
2. Possession
Possession, which may be actualor constructive means that the plaintiff’s continues to
exercise a claim over the land to the exclusion of others in that lands use. Trespass to
land, like the tort of trespass to goods, consists of interference with possession and
hence ownership may not be relevant unless the owner is also in possession of the land,
either actual or constructively (Towers Co.v Gray [1961])
3. Entry
The other crucial element to be proved is that of entry. Entry is a must and any
intrusion on the land in possession of another without their consent, whether voluntary
or by mistake amounts to trespass (Basely V Clackson [1681] 3 Lev 37). But entry
which is involuntary, as opposed to that by mistake, may not amount to trespass as in
situations where one is thrown or pushed into someone’s land (Smith v Stone [1647]82
ER533)

Therefore, the following acts by the defendant may amount to trespass:

 Placing a Ladder against one’s premises
 Driving a nail into another person’s wall
 Growing a plant upon someone’s land
 Remaining after determination of license

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  Use of entry other than that for which authorized to enter

4. Trespass Ab Initio
Ab Initio is a Latin term meaning “from the beginning” Thus, if a person enters land under
the authority of the person in possession, as a licencee but ends up abusing that authority by
either committing a misfeasance or non feasance, they are deemed to be trespassers from
the beginning . The Law considers this person a to be a trespasser from the beginning and
their authority toenter that land revoked retrospectively (Chic Fashions V Jones [1968] 2
QB 299) and the Six Carpenter’s case[ 1572] ).

5. Remedies
The following remedies are available to the plaintiff subject to the defendant’s defenses of
licence and justification by law:
 Re-entry
This is a self-help measure whereby the person can re-enter the premises. Self-help is a
remedy available to a land owner against trespassers (Hemming V Stick [1920) 1720).
 Recovery of Land (Ejectment)
By an action for ejectment, a person dispossessed of Land recover it from the defendants.
It is different from self-help measure as the plaintiff’s seeks an order of the court to effect
the defendants and recover the land unlawfully dispossessed ( Asher V Whit Lock
[1865] LR QB)
 Jus Tertii
 Mesne Profits
Mesne profits are profits of land taken by a person in possession of land for wrongful
dispossession of land (Simon Lwando V ZCCM SCZ/8/291/2008)
 Distress Damage Feasant
This is a remedy that entitles the possession of land to seize the trespassing cattle or
animals or other chattels and detain them until compensation, which is commensurable
with the damage caused by the cattle or animals, is paid to restore the loss. The detention
of the animals must be done while the animals are on the land so trespassed and not later
after the trespass has been completed (Annet Auther and Another V Thomas
Auker[1998] QB 564)

Topic-4: Product Liability

1. Conceptual Framework
Product
The word product is intended to refer to ‘goods’ that is a thing and not to some service or
process. See sale of goods Act 1890 for purposes of detailed definition of product. For
purposes of product liability, Primary, Primary agricultural produce and game, which have

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 not gone through the industrial process, have been specifically excluded from the list of
goods considered as product. Money is also not regarded as a product for purpose of product
Liability.
Product Liability
Products liability is a manufacture’s or seller’s liability in tort for any damage or injuries
suffered by a buyer, user or bystander as a result of defective products (black’s law
Dictionary at p.1326). It is a legal theory by which liability is imposed on the manufacturer
or seller of a defective product and can be based on a theory of negligence (tort), strict
liability or breach of warranty (contract)(MacPherson v Buick motor [1916].
Defect
A product is defective if it contains an imperfection or shortcoming in a part essential to that
product operation (black laws Dictionary at p.481). see also the case of A V National
Blood Authority [2001] 3All ER 289 which espouses the notion of defect.
A product is defect if:
 It is by its very nature highly dangerous
 If used may become highly dangerous
 Failure to give adequate instructions as to the product’s careful use
 Absence of proper warnings against misuse or abuse
 If it contains a foreign matter accidentally or deliberately introduced in it during the
manufacturing and storage as well as distribution process.

2. Liability Under Tort

Liability under tort, most specifically negligence, may be invoked when it is found that the
plaintiff’s may not be covered under the competition and consumer protection act No. 24.
of 2010. If the plaintiff acquires goods which later turn out to be defective under sale or
similar contract, the first and recommended option is to sue the manufacturer, supplier or
seller in contract for breach of implied undertaking relating to quality (see section 14 of sale
of goods Act, 1890). Read also the case of Donoghue V Stevenson.
Negligence on the part of the producer or manufacturer must be proved before liability can
be established, and proof is the same as in any other cause of negligence. Res ipsa loquitur
does not apply here as negligence must be both averred and proved as Lord Macmillan
guided in the Donoghue Case.

3. Liability Under Contract

A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the
property in goods agreement to the buyer for a money consideration, called the price
(Section 1 of the Sale of Goods Act, 1890). Thus, as started above, the first option available
to abuyer of defective products is to sue under contract for breach of warranty in terms of

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 section 14 (3) of sale of goods Act, 1890. Liability is governed by contract such as privity of
contract entertained in litigation.
4. Strict Liability
Tort Law, as regards liability for dangerous goods, regardless of whether that danger was
inherent, has evolved to impose strict liability (Rogers V Toni Home Permanent Co. N.E
2d 612 [1958]).

5. Defences
The following defences are available to the manufacturer of goods to abate liability for
defective or dangerous goods:
 User`s knowledge of the defect
If it is shown that the consumer or user was aware of the defect in the product, then the
manufacturer may not be liable. Liability may only be found where the defect is hidden
and unknown to the consumer as one who consumes or uses a product they are aware to
be noxious may not later complain of the consequences (Fart v Butters [1932] 2
KB606).
 Contributory negligence (Mason V Williams and Williams [1955]1 WLR 549).
 Defect caused after the manufacturer has parted with the products (Donoghue v
Stevenson and Grant v Australian Knitting Mills).
 Inspection contemplated before use
Where the manufacturer, contemplates that, in the ordinary course of things, their product
will not be used until after an examination or test is first made, that manufacturer is not
liable for defects which such an examination or test ought to have revealed (Buckner V
Ashby and Horner Ltd [1941] 1 K.B 321).

Topic – 5: Nuisance
1. Nature of Nuisance
Nuisance is based on the saying “use your property in such a way as not to harm that of
others” (Cambridge Water Co. V Eastern Countries Leather Plc [1994] 2 AC 264).

Nuisance occurs when the defendant uses their land unreasonably to the detriment of his
neighbor (Miller V Jackson [1977] QB 966).It is the unlawful interference with a
person`s use or enjoyment of land, or some other right over or in connection with. Thus, a
plaintiff must:
 Show proprietary right over land either as owner, leaseholder or tenant (Malone
V Laskey [1907] 2 KN 141)
 Show that there was unreasonable interference with their land by the defendant
 Show interference with quite enjoyment of their land.

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The courts, over time have developed factors used to determine whether there is a nuisance
committed by the defendant. These are:
 Character of Neighborhood
The character of the neigbour is key in determing whether the use of land by the
defendant is unreasonable (Sturges V Bridgeman [1879] 11 ch.D)

 Sensitivity of the claimant

If the complaint is sensitive to situations and circumstances where a reasonable person
under the similar situations and circumstances may not complain then the interference
cannot be regarded as nuisance (Robinson V Kilvert [1889] 41 CH.D 88).

 Duration of Nuisance
The activity complained of must be a continuing one as opposed to a one-off activity
(Crown river Cruises V Kimbolton Fireworks [1996] 2 Lloyds Rep. 533).

 Public Benefit
If it can be shown that the activities complained of where done in public interest, then
they may not amount to a nuisance as public interest prevails over individual and
sectional interests. Thus, noise and dust occasioned by the construction of public roads is
done in the public interest and may not amount to a nuisance.

 Malice
Activities by the defendant which are done with malice, spite and hostility prime facie
show unreasonableness (Hollywood Silver Fox Farm Ltd V Emmett [1936] 2 KB 468).

The tort of nuisance primarily serves two purposes – it involves the protection of the use of land
(or property) and secondly, that protection is from unreasonable interference. It is a branch of the
Law of tort most closely concerned with environmental protection in modern day use of the word
and actions under this tort have concerned:

 Water pollution
 Land pollution
 Air pollution
 Pain
 Irritation
2. Statutory Nuisance
This type of nuisance arises from provisions specifically categorizing certain acts as nuisance. To
fall within the definition of statutory nuisance, an activity needs to be or likely to be: a nuisance;
posing a threat to public health and these usually are offences under various codes such as
environmental protection, food and drugs, public health highway, etc.

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3. Public Nuisance
This is a type of nuisance that affects the public or a class of people opposed to an individual. It,
like statutory nuisance, is a common law offence and the public may bring a class action against
the perpetrator (R v Ruffle [1991] 13 CR). Actions such as obstruction of highways and public
roads, carrying on of an offensive trade or practice, water pollution and other related activities
that affect the public amount to public nuisance (Attorney General v PYA Quarries [1957] 2
QB 169).
4. Private Nuisance
Private nuisance may be described as unlawful interference with a person`s use or enjoyment of
Land, or some other rights over or in connection with it (Read v Lyons and Co. Ltd [1945] KB
216). Lord Lloyd in the case of Hunter v Canary What Ltd [1977] AC 655, said that the tort of
private nuisance takes three (3) forms. These are:
 Encroachment on a neighbor,s Land
 Direct physical injury to the Land
 Interference with the enjoyment of the land.

Under private nuisance, for the plaintiff to succeed, they must be able to show that there was
interference, which must relate to the use or enjoyment of land. Secondly, they must be able to
show that the interference was unreasonable. Thirdly, they must show that there was damage
suffered. This is different from the requirement in public nuisance which requires the plaintiff to
show that they suffered special damage.
5. Defences
The following defences may be available to the defendant to avoid liability at law:
 Statutory Authority
It is generally a defence to prove that the interference is an inevitable result of what was
allowed or authorised by statute.

 Prescription
Twenty years` Continuance Commitment of nuisance will by prescription, legalise a
private nuisance but not a public one (Sturges v Bridgeman [1879] 11 Ch.D 862).
 Jus Tertii (Nicholls v Ely Beet sugar factory Ltd [1935] 1 Ch, 343 (C.A)).
 Necessity
 Act of God

6. Remedies
The following remedies are available to the plaintiff:

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  Abatement
 Injunction
 Damages

TOPIC – 6: Defamation
1. Freedom of Speech and Defamation

Freedom of Speech
Article 20 of the Constitution of Zambia Act No.18 of 1996 protects freedom of speech
and free speech but also protects people`s reputations. Therefore, the freedom of
expression and free speech is subject to defamation laws in that the constitution has
recognized the need to “protect reputations” of others in as far as we are enjoying this
freedom to say whatever we want.

Defamation
Defamation is the act of communicating false statement about a person that injure the
reputation of that person. Parker, B stated that defamation is the publication, without
lawful justification or lawful excuse, which is calculated to injure the reputation of
another, by exposing them to hatred, contempt or redicule (Parmiter v Coupland [1840]
6 M & W 105). It tends to lower the plaintiff in the estimation of right-thinking members
of society (Sim v Stretch [1936] 2 All ER 1237).

Categories of Defamation
There ae two (2) categories of defamation. There are:
 Libel
 Slander
Libel is a written defamatory statement. On the other hand, slander is a spoken or oral
defamatory statement. Slander can also be conveyed by gestures.
The Defamation Act
The defamation Act, Cap 68 of the laws of Zambia Consolidates and amends the Law relating to
libel, other than criminal libel and slander.
Criminal Libel
Criminal Libel is provided for under sections 191 and 192 of the Penal Code Act, Cap 87 of the
Laws of Zambia.
Therefore, libel may either be a tort or Crime; meaning that one may pursue the defendant under
civil proceedings or the accused may be prosecuted for a crime.

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Defamation of the president
In term of section 69 of the penal code, defamation of the president, either by way of Libel or
Slander is a criminal offence punishable at law in this country.
2. Differences between libel and slander
The following are some of the major difference between libel and slander:
 Libel is a crime as well as a tort.
 Libel is actionable per se, that is without proof of special damage; in slander special
damage must be proved except in special cases stated below.

Cases in which slander is actionable per se

The following are circumstances in which damage will be presumed to occur due to the nature of
the allegations and their impact on the reputation of the plaintiff:
i. Imputation of a criminal offence punishable with imprisonment (Simmon v Mitchell
[1830] 6. APP. Cas 156).
ii. Imputation of contagious and infectious disease (Blood worth v Gray [1844] ).
iii. Imputation of unchastity to a female (kerr v Kennedy [1942] 1 KS 409).
iv. Imputation of unfitness to office or incompetence (Section 3 and 5 of the Defamation
Act and Book v Arnold [1895] 1 Q3571).
Special Damage
Special damage is damage of a kind which is not presumed by the law, but must be expressly
pleaded and proved.

3. Elements of Defamation
The following are the essential elements that need to be proved for an action of defamation to
succeed:
 The statement words must be defamatory
 Youssuopoff V Metro-Goldwyn [1934]
 Sim V Stretch.

Innuendo
An innuendo is an oblique remark or indirect suggestion, usually of a derogatory nature.
Sometimes it happens that a statement does not convey any defamatory imputation in its natural
meaning but it may convey a defamatory remark owing to the particular circumstances (Cassidy
v Daily Mirror newspapers Ltd [1929] 2 KB 331).

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The defamatory meaning arises where the words used have extrinsic facts which are known to
the recipient. It is that part of statement of claim which states the latent meaning of the words
used which are not the face of them defamatory (Truth V.Z Ltd v Holloway [1960]).
The burden of proving that those words are defamatory lies on the plaintiff.
 The statement or words must refer to the plaintiff.
 Morgan v Odhams press [1971] 1 WLR 1239.
 Knuppfer v London Express [1944] AC 166.
 The statements or words must be published
 Bata V Bata [1942] W.N 366.
 Duke of Brunswick V Harmer [1849] 14 4B 185.
Note (Husband and Wife)
Communication of defamatory matter between spouses is not publication but a communication
by one of the spouses of that defamatory matter to a third party is publication (Wennan V Ash
[1838] 13 CB 836).
4. Defamation Versus Malicious Falsehood
Not all false and untrue allegations about another amount to defamation. An action may lie,
provided the false and untrue statements are made with malice under malicious falsehood. Those
statements may cause damage to the plaintiff by influencing how other persons behave towards
the plaintiff. Thus, malicious falsehood requires the making of a false statement with malice to
some person other than the plaintiff, as a result of which the plaintiff suffers damage. The
requirement of malice is satisfied if the defendant knows that the statement is false or they are
reckless, that is they make the statement not caring whether it is true or false but negligence is
not enough (Shapiro v La Morta [1823] 40 SIR 39 and Balden v Shorter [1933] Ch. 427).
At common law the plaintiff may maintain an action for malicious falsehood if they can show
that:
 The defendant published to third parties words which are false.
 That they referred to the plaintiff or their property or business.
 That they were published maliciously
 That special damage has followed as a direct and natural result of the defendant’s
publication.
It is important to note that the Tort of Defamation and Malicious falsehoods overlap. Despite the
overlap, the two torts differ in two ways:
 Malicious falsehood is both wider and narrower than defamation: it is wider in the
sense that the statement need not reflect upon the character or reputation of the
claimant: it is narrower in that in defamation the plaintiff need not prove the falsity of
the statement and broadly speaking, untrue defamatory statements are actionable
without proof of actual malice.

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  Malicious falsehood does not cover mere loss of reputation without proof of
pecuniary loss (Lonrho v Fayed (No.5) [1993] 1 WLR).
5. Defences
The following defences are available to the defendants in an action for defamation:
 Justification (or Truth)
The defendant may plead that the statement is the truth.
 Philadelphia Newspapers V Hepps (1986) 475 45
 Edward Jack Shamwana V Levy Mwanawasa (1994)
 Fair Comment
It is a defence to show that the statement is a fair comment in a matter is public interest.
 Baldwin v Rusbridges [2001] EMLR 47.
 Bonaventure Bweupe v this Attorney General (1984) ZR 21 (HC)
 Belden Ndoni v Por Newspapers Ltd and Times Print park Zambia Ltd SCZ No.8 of
2011
 Sata v Chimba and others (2010/46/1282)
For the defense of for comment to stand, the plaintiff’s must show that:
i. The matter commented on was of public interest.
ii. There was an observation or inference ( or comment) from facts and not an assertion of
facts ( Hunt v Star Newspaper Co. Ltd [1908] 2 KB 309 and London Artist v Littler
[1969] 2 QB 375)
iii. The comment was fair and bona fide (and without malice)

This defence, like that of justification has been recognized at statute. See Section of the
Definition of Act.
 Privilege
Privilege may either be absolute or qualified as a defence to an action of defamation.

Absolute Privilege
The following instances enjoy absolute privilege:
 Statement in parliament
 Article 76 (1) 8 the constitution of Zambia, 2016
 Church of Scientology v Johnson Smith [1972) 1 QB 522
 Reports, papers votes and proceedings ordered to be published by Parliament
 Communication between certain officers of the state
 Report of Court Proceedings

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Qualified privilege
This applies to persons who are under a legal, social or moral duty to make a communication,
and the recipient has an equivalent interest in receiving it ( Watt v Longsdon [1930] 1 KB 130)
The following instances fall under this defence:
 Qualified privilege of newspapers (Section 9 of Definition of Act)
 Reynold privilege (Reynods v Times Newspaper ltd [2001])
 Testimonial by employers
 Recommendation letters
 Offers to make amends
Sections 10and 11of the Definition Act provides that for this defence where the alleged
defamation was made, on hand without malice or negligence and unintentionally on the other
hand. Usually one will see this defence in practice when a newspaper or media outlet offer an
unreserved apology and retracts the story either in full or in part and acknowledges its mistake
( see Warrad Herod Phiri V the Programme manager Radio Maila Zambia Chipata
2002/43/31).
 Secondary Publication and Innocent Dissemination
This defense is usually available to a printer, seller, broadcast and service providers. For one to
rely on this defense, they must show that:
a) They were not the author, editor or publisher of the statement complained of
b) They took reasonable care in relation to its publication
c) They did not know and had no reason to believe what they did caused or contributed to
the publication of a defamatory statement.
 Apology
An apology for the defamatory statement by the defendant nay either mitigate damages and its
absence may aggravate them (Fielding v Variety [1967] 2 QB 841). Generally speaking, an
apology does not affect the liability of the defendant/accused and thus strictly speaking it is not a
defence per se.
 Limitation Act
A claim in defamation may become stale or statute barred as provided for by the Limitation of
Actions Act, 1939. Thus, the action may be challenged in that it has expired and must be brought
within 6 years from the date of publication.
 Consent
It is a defence under defamation that the plaintiff consented, either expressively or impliedly, to
the publication of which the plaintiff now complains by participating or authorising it (Rodgers
v Clifton (1803) and King v Warring (1803).

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6. Remedies
The following remedies are available to a successful plaintiff in an action for
defamation:
 Damages
 Injunction

Topic -7 Malicious Prosecution

1. Definition of Malicious Prosecution
According to Black’s Law Dictionary, malicious prosecution is the institution of criminal or
civil proceedings for an improper purpose and without probable cause ( Black’s Law
Dictionary at P.1044). It occurs where there is an institution of criminal or civil proceedings
against another without a reasonable cause. This is a tort consisting of an abuse of the
process of the court wrongfully instituting criminal or civil proceedings against another.
2. Damage
The claimant must prove that they suffered damage as a result of the prosecution which was
maliciously initiated and carried out and terminated in their savior. The case of Saville v
Roberts (1698) Classified damage for purpose of tort as of three(3) kinds, any of which
might ground the action:
 malicious prosecution might damage a person’s fame: or
 the safety of their person; or
 the security of their property by reasons of their expense in repelling on unjust attack.

Thus, assuming there is damage the plaintiff must prove that:

 The defendant prosecuted them
 The prosecution ended in the plaintiff’s favour
 The prosecution lacked reasonable and preamble cause
 The defendant acted maliciously.
3.Essential of the Tort of Malicious Prosecution
The tort of malicious prosecution has four (4) essentials as follows:
 Prosecution
To succeed, the plaintiff must prove that a prosecution took place and it is the defendant who
prosecuted or initiated the prosecution (Malz v Rosen [1966]1 WLR 1008; Martin v
Watson [1996] AC 74 and Attorney General and Others v Phiri,appeal No.161/2014).

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  Favourable termination of the prosecution
The plaintiff must show that the prosecution ended in their favour whether by means of an
acquittal, discontinuance, quashing due to defects. If the proceedings result in a conviction,
then suit under malicious prosecution will not lie against the defendant as a cause of action
only lies if the prosecution fails to secure a conviction (Park v Langley [17B] and Reynolds
v Kennedy [1724])
 Lack of reasonable and probable cause
It is for the plaintiff to prove that the defendant did not have reasonable and probable cause,
and not for the defendant to prove that they had (Abrath v North Eastern Railway
Company CA [1883] 11 QBD 440). For better understanding of the of reasonable and
probable cause read the following cases:
 Hicks v fault [878] 8 QBD 167
 Herniman v Smith [1938] AC305
Lord Devlin in the case of Glinski v McIver 19621 All BR 696 defined reasonable and probable
cause in the following way:
Reasonable and probable cause means that there must be cause (that is, sufficient grounds) for thinking that the
plaintiffs was probable guilty of the crime imputed.

Dixon, J notes in the case of Common Wealth Life Assurance Society Ltd V Brown [1935] 53
CLR 343, the prosecutor must believe that the probability of the accused’s guilty is such that
upon general grounds of justice a charge against them is warranted. Thus, there must, in the
prosecutor’s eyes, a case fit to be tried.

 Prosecution was instituted with malicious intent.

The question of whether malice exists is a matter of fact and the burden of proving it lies on
the plaintiff (see Abrath Case) Malice is simply an indirect and improper motive but can
mean more than this. The plaintiff must separately prove malice and lack of reasonable and
probable cause. The separation of the two is based on the fact that however spiteful an
accusation maybe: the personal feelings of the accuser are irrelevant to its probable truth. The
defendant may have had a reasonable and good case against the plaintiff which must not be
affected by initiated ill-motive (Brown v Hawkes [1891] 2 QB 718, Stevens v Midlands
Countries Ry (1854) 10 ex.352 and Gibbs v Rea [1998] AC 797).

TOPIC – 8: Remedies
There are four (4) main remedies under tort Law. These are:
 Damages
 Injunctions

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  Restitution
 Self-Help

1. Damages
Damages in the vast majority of cases are the pecuniary compensation, obtainable by
success in action, for a wrong which is either in tort or a breach of contract, the
compensation being in the form of a lump sum awarded at one time, unconditionally and
in form of money (Broome v Cassell and Co. [1972] AC 1027). The object of award of
damages is to give the claimant compensation for the damage, loss or injury they have
suffered. The heads or elements of damage recognized as such by the Law are divisible
into two main groups: Pecuniary and Non-Pecuniary Loss. The former comprises all
financial and material incurred, such as loss of business profits or expenses of medical
treatment. The latter comprises all loses which do not represent an inroad upon a person`s
financial or material assets, such as physical pain or injury to feelings.
The following are types of damages worth noting:
 Nominal damages
These are awarded where the claimant has failed to prove any loss or damage but has
established a cause of action, certain torts and all breaches of contract being actionable
without proof of damage. As the title nominal damage imply, they are damages only in name.
 Exemplary (or punitive) damage
These are awarded for wanton tortious conduct, the intention being to punish and not to
compensate.
 Restitutionary damages
These come into play when the defendant`s tort or breach of contract has given them a
benefit and the claimant has suffered no loss or at least has suffered a loss of smaller
proportion than the benefit to the defendant. Such an award is the direct opposite of
compensation.
 Contemptuous damages
These are given by a court where the court feels that a particular action should never have
been brought at all. The plaintiff is deemed to have wasted the court`s time with a frivolous
and an unfounded claim hence awarding these damages (Reynolds v Times newspapers
[1988] 3 WLR 862).

2. Injunction
This is a judgment or order of the court restraining the commission or continuance of some
wrongful act, or the continuance of some wrongful omission. Injunctions are generally sought
against torts such as nuisance, continuing or repeated trespass, passing off or interference with

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contract but can also be used for all torts such as assault and the like (Egan v Egan [1975]
ch.218
The following are some of the types of injunctions:
 Interim (or interlocutory) injunction
This is the type of an injunction used provisionally until the hearing of the case on merits.
The claimant, in order to obtain this injunction needs not established a prima facie case but
that there is a serious question to be tried (Cyanamid Co v Ethicon ltd [1975] AC396).
 Mandatory injunction
A mandatory injunction is an injunction by virtue of which the defendant is ordered to take
positive action to rectify the consequence of what they have already done (Redland Bricks
ltd v Morris [1970] AC 652.Lord Upjohn laid principles governing the grant of mandatory
injunction in the case of Redland Bricks v Morris as follows:
(i) damages will not be an adequate remedy for the harm to the claimant.
(ii) If the defendant has acted wantonly or has tried to steal a march on the claimant
or on the court, then the expense which the issue of a mandatory injunction would
cause the defendant to incur is immaterial, but where the defendant has acted
reasonably though, in the event, wrongly, the cost of remedying their earlier
activities is a most important consideration.
(iii) If a mandatory injunction is issued, the court must be careful to see that the
defendant knows as a matter of fact exactly what they have to do so that they can
give proper instructions to contractors for the carrying out of the work.
 Quia Timet Injunction
This is the type of an injunction granted where the applicant demonstrates that the
conduct of the defendant is such that, if it is allowed to continue, substantial damage to
the claimant, is almost bound to occur (Redland Bricks v Morris: Torquay Hotel Co
Ltd v Cousins [1969]2 Ch. 106).

3. Restitution
The court may grant an order for the specific restitution of property for recovery of land
and chattels. This is appropriate in instances where the plaintiff has been wrongfully and
unlawfully disposed of their goods or property. It prevents unjust enrichment on the part
of the defendant in some cases but ordering them to restore the property to the rightful
owner.

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 4. Self-Help
These are extrajudicial remedies whereby the person who has suffered a wrong takes
upon themselves to remedy the wrong without resorting to the help of the courts. It is not
necessary to approach the courts all the times as courts will become clogged with cases
hence the Law has allowed persons to use lawful and reasonable means to remedy
wrongs suffered on their own such as retaking of goods wrongfully converted, ejecting of
a trespasser or abatement of a nuisance.

THE END!!!

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