Chapter 1

LAW OF TORTS

Introduction

What is a tort? - What are torts about? How do we define a "tort?"' It

is difficult to define a tort because of the variety of behaviour which may

constitute a tort. The word derives from the Latin "tortus" which means
broken or twisted. Thus literally speaking, torts are concerned with
"twisted" or wrongful behaviour. It is a civil wrong. Civil wrongs
amounting to torts come in one of three ways:
(i) through an intentional wrongful act that harms body and/or property
and this includes assault, battery or trespass to land;
(ii) through negligence which unintentionally causes physical, property or
economic injury to a person to whom we owe a duty of care;
(iii) through defamation — false and legally inexcusable aspersions on a
person's reputation.
For example:
(i) Kofi intentionally or negligently interferes with Ama's body through an
embrace or a kiss.
(ii) Kofi negligently causes physical injury to Ama or Ama's property.
(iii)Kofi interferes with Ama's enjoyment of her land.
(iv)Kofi defames Ama (falsely calls Ama a prostitute or a lesbian).
(v) Kofi conspires with John to cause Ama financial loss.
All five situations will amount to torts in our modern Ghanaian law.
Three elements are shared by all the five complaints noted above:
(i) human behaviour categorized as wrongful by the law;
(ii) such behaviour interferes with an interest of another protected by the
law;
and (iii)the victim is allowed to seek redress in the civil courts (i.e. it is a
civil wrong) for a monetary compensation.
Two things further stand out:
(i) For a tort to be committed, the interest invaded must be one which is
protected against the particular wrongful conduct — note that some
interests (interest in security of the person or property may be better
protected than others e.g. economic loss).
(ii) The type of person the tortfeasor is or his relationship to the victim is
also relevant e.g. Rylands v. Fletcher3 principle requires an occupier as the
tortfeasor.

The same act may give a cause of action in both torts and some other
branch of the law, e.g. taxi driver negligently causes injury to A — this may
amount to a tort as well as breach of contract.
Is a tort dependent upon the fact that it gives a right to sue for unliquidated
damages? — Yes, to some extent. But this is true of contract and trusts as
well!!!
(i) Easiest way of looking at torts is that it is concerned with providing a
remedy to people harmed by others.
(ii) The more complex but closer to the reality view is that it is concerned
with the protection of certain interests against certain types of wrongful
behaviour. As already noted there are two relevant issues here:
a) the interest invaded must be protected: and
b) the type of wrongdoer; the relationship between the tortfeasor and the
victim as well as the wrongfulness of conduct are relevant considerations, in
the decision to compensate victims of wrongdoing through torts law, e.g.
(i) Rylands v. Fletcher — one who allows a dangerous thing to escape from
land he does not occupy does not commit this tort.
(ii) Occupier's liability — occupier and visitor relationship must be
established before we can tell whether there will be liability.

A traditional way of describing torts law is to contrast it with other branches

of law, usually contract and crime.

Distinction between torts and contract

(a) Formal
Contract obligation is based on agreement between the parties. But torts
obligation is created by operation of law independent of the consent or
agreement of the parties.

(b) Substantive
The purpose of contract is always to protect the interest in the performance
of promises by others. But the interests protected by Torts are diverse but
essentially they aim at maintaining the status quo.

c) Contract gives damages to compensate the plaintiff for disappointment

of expectations under the contract. But tort gives damages only for
deterioration in the plaintiff 's position; and so for many torts there can be
no liability if the plaintiffs life or property is unaffected by the defendant's
wrongful conduct.

d) Contractual rights are available only against a particular person, i.e.

iura in personam. But the rights created by the law of torts are available
against all persons, i.e. iura in rem.

e) Contact liability is for nonfeasance, i.e. omission to act or positive

action failing to achieve a particular promised outcome or result. But tort
liability is concerned with misfeasance, that is positive actions causing
damage.

Distinction between torts and crime

(a) An act may be both a tort and a crime, e.g. kissing a girl on the lips or
depriving me of my pen
(i) unlawful harm (crime) stealing (crime)
(ii) battery (tort) conversion (tort)
(b) The aim of criminal law is to protect the public interest in the
suppression of certain behaviour usually by threatening punishment — thus
influencing behaviour. The aim of torts law is to give private redress to
wrongs suffered by individuals through monetary compensation. NB: it
shares this with contract as noted above.
C
Ghana torts law belongs to that part of the received English principles of
law called the common law. The common law was developed in England,
through a process which is amply and authoritatively discussed in the
books. Our modem torts law bears the marks of this history. A sketch of the
history follows.
The real origins of torts law are uncertain. Common law as a system of
substantive law sub-divided into well-known branches (e.g. torts) is of quite
recent origin — mid 19th century. But common law has existed as a system
of law for some nine centuries.

Procedures not principles

Pre-19th century common lawyers viewed law not in terms of doctrines but
rather in terms of certain specific writs available to redress specified
wrongs. In the early periods after the Norman Conquest (13th century), the
principle was firmly established that no plaintiff could bring an action in the
King's courts of common law without one of the King's writs — issued
from the Chancery. The number of such writs became limited and were
framed to govern certain specific kinds of wrongs. Each writ was a separate
pigeon-hole, having its own procedure and its own substantive law. A
plaintiff selected that which fitted the facts of his case: Was a wrong writ
fatal to an action?
The modem law of torts springs from three of these writs:
(1) trespass vi et armis;
(2) trespass on the case; and
(3) detinue (abolished in England in 1977).
The action for trespass vi et armis et contra pacem Regis dates as far back
as
King John's reign in 13th century. Most trespasses were redressed in local
courts: the King's courts only if vi et armis. Originally, also it was directed
at serious and forcible breaches of the King's peace. In other words, it was
a combined civil and criminal proceeding. By the end of the 13th century,
the allegation of contra pacem became a jurisdictional ploy — and not
because of the facts; it may also have been inserted to prevent a defendant
from waging his law. Hence vi et armis — with force and violence.
Originally, it was a crime and anyone convicted of trespass was fined and
may even be imprisoned. Gradually, the law- gave the victim a right to
monetary compensation. Thus paying the way for trespass to become a tort.
Finally, towards the end of the 1711 century (1697)), the fine was abolished
by statute and the writ was converted into an exclusively civil remedy.
Three categories of trespass came to be recognised:
a) Trespass to the person — vi et armis
b) Trespass to goods — de bonis asportatis
c) Trespass to land — quare clausum fregit.
The common feature of all three was their insistence on: (a) an act done by
the defendant; hence, if the defendant were forcibly carried onto plaintiff's
land by third parties, it was not trespass; (b) which is direct; and (c)
forcible; thus, merely causing injury, loss or damage was not trespass.
Eventually, as elsewhere noticeable in the evolution of the common law,
fact was replaced by fiction and so force came to mean merely that the
interference was unauthorised. The defendant's act need not have therefore
been accompanied by any (great) display of force or violence, just that it
was unwelcome, foul or hostile. Thus trespass was established by showing:
condense
a) an act by the defendant — therefore no trespass, if the defendant is
carried by others onto die plaintiffs land
b) that was direct e.g:
(i) throwing a log at you - direct therefore trespass
(ii) constructing the roof of my house in such a way as makes it shoot rain-
water on to your land — consequential therefore not trespass
(c) forcible interference with the plaintiff's right.
Insistence on an act, directness and lack of authorisation as the basis for
success in trespass meant that several kinds of injuries fell outside the scope
of the writ of trespass vi et armis, thus: aspersion.
(a) If A voluntarily submitted himself or his properly to B's action, the
writ will not issue against B, even if B's action had caused him injury, e.g. a
patient and a negligent doctor.
(b) If A's injury was only an indirect consequence of B's action, again
this was not trespass, e.g. throwing of log - hits any person trespass; thrown
on to the road, A passing hits his leg against it — no trespass. That is
intentionally
putting a log in someone's way and causing him to trip over it and fall is not
trespass because the injury is consequential and not direct. Occasionally
though, the courts were generous in determining the directness as a causal
issue — Scott v. Shepherd.
(c) If the injury was caused by mere omission, no trespass, for the
maxim was: Not doing is not trespass.

The writ of trespass on the case (special trespass) was, developed to fill in
these gaps left by trespass vi et armis. The major point of difference,
procedural in content, between trespass and case, was that, in trespass, a
plaintiff confined himself to conventional words in the writ and reserved his
substantial allegations for the declaration. In case, however, the naked facts
upon which he relied were lengthily set out in the writ itself.
For the rest of the controversy over why it was called case see relevant
historical textbooks.
For our present purpose (he thing to remember is that the writ of trespass on
the case was developed to fill in the gaps in the older writ of trespass vi et
armis. Because it was not limited to direct and unauthorised interference
only, case is responsible for the greater pail of our modem torts law. Thus,
actions of nuisance, conversion, deceit, defamation, malicious prosecution,
various torts protecting economic interests and negligence evolved from
case.
Trespass, because of its quasi-criminal origins, required no proof of any
actual damage. The invasion of the .plaintiff's rights by the criminal conduct
was in itself considered a tort. Thus, trespass vi et armis is actionable per se.
An important feature of case, however, was that, unlike trespass vi et armis,
it was not actionable per se.
Therefore to succeed in case one had to prove actual damage. This historical
distinction between the two writs, however, remains of great importance
because the torts deriving from them retain the distinguishing features of
the two writs as we have already noted.
All modem trespasses, except perhaps trespass de bonis asportatis, are still
actionable per se. But no modern torts action derived from case is
actionable per se.

Chapter 2
THE BASIS OF LIABILITY IN MODERN TORTS LAW

There are two competing interests of the individual which the law of torts
has traditionally sought to adjust:
a) the individual's interest in his security; and
b) his freedom of action.
In the earlier days of the common law, it appeals that, since the basic
emphasis was on procedure and forms of action, very little attention was
given to the mental condition of people committing torts. Not even the devil
can know the thoughts of man, so it was said. If A caused a direct and
forcible injury to another that was trespass and the law did not bother about
whether A's conduct had been intentional, negligent, or accidental, i.e.
without fault. So it was said that liability in trespass was strict.1
Strict liability, i.e. liability imposed without inquiring into whether the
injury complained of was attributable to the defendant's fault, best promotes
interest in the individual's security. So it had been said that medieval
common law put emphasis on interest in security at the expense of freedom
of action. -For, it is in the interest of the victim that the law should ignore
all questions relating to the mental state of the defendant at the time of the
tort, so that he can claim compensation, irrespective of culpability or
innocence of the tortfeasor.
The second competing interest mentioned, is freedom of action. This is
obviously hampered if the individual acts at his peril, e.g. if you promote
the individual's interest in his security by imposing strict liability, you are
limiting his freedom of action. So, if you want to promote freedom of
action, you have to do away with strict liability, at least in a system where
there is no liability insurance (even if) or anything else redistributing the
loss.3
The doctrinal foundations of the modern law of torts were developed
largely in the 19th century — at the height of the industrial revolution —
when the intellectual climate was dominated by notions of free enterprise,
open market etc. This climate favoured freedom of action over security. It
was argued that imposing liability on entrepreneurs and other men of action
for injuries blamelessly caused would dampen their enthusiasm and blunt
the initiative and hold action needed for the growth of the economy. As one
judge put it — "If trains run at 10 m.p.h. there would be fewer accidents but
life would be intolerably slow."
This 19th century faith in free and private enterprise led to the emergence of
the cardinal principle underlying most of the modem English tort law: "no
liability without fault."
Liability in the Ghanaian law of torts which is derived largely from English
common law is thus based principally on fault, i.e. liability in toil is based
on either intentional act or negligence. The fault element is satisfied by
proving that the defendant did the act either (internationally) or negligently.
But there also remains what Lord Macmillan referred to in Read v. Lyons5
as vestigial relics (i.e. pockets) of strict liability, e.g. Rylands v. Fletcher —
a decision which is based on the principle sic uti tuo ut alienum laedat. By
intentional conduct is meant a party's advertence to his conduct and its
consequences, combined with a desire for those consequences. Intention
requires proof. Because it is difficult to prove subjective intention,
constructive intention is used, e.g. Wright J in Wilkinson v. Downton. NB:
The concept of constructive intention is, of course, not popular in criminal
law.
In torts, an objective rather than a subjective approach is used for the
determination of intention. Here the law looks at the effect produced to
determine whether defendant's act was so calculated to produce some such
effect that an intention to do so should be imputed to him. Thus Street, for
example, argues:

"If in the circumstances he had knowledge that certain consequences will

substantially result from his act, then the defendant had the desire (i.e. he
intends) for those consequences."

So, if A points a loaded gun at B, knowing that pulling the trigger will
result in some disastrous consequences, then if he pulls it, he must be
presumed to have intended the consequence thereof. His shooting B is
intentional; for, it is taken that a reasonable man would conclude that you
intended the result. A plea claiming ignorance will be of no avail. But this
concept of constructive intent must be distinguished from recklessness and
negligence. As pointed out by Prosser. The mere knowledge or appreciation
of the risk short of substantial certainty is not the equivalent of intent."
Intention can only be proved where the person doing the act knows of the
substantial certainty of the result; where mere foreseeability is proved, it
might be negligence or recklessness.
In the famous case of Wilkinson v. Downton, Justice Wright applied the
concept in a question form thus:

"One question is whether the defendant's act was so plainly calculated to

produce some effect of the kind which was produced, that an intention to
produce it ought to be imputed to the defendant, regard being had to the fact
that the effect was produced on a person proved to be in an ordinary stale of
health?"

Negligence
Negligence, as a tort by itself, is perhaps the most important tort today. As
has been pointed out by others, the centre of gravity of torts law has shifted
to negligence. But negligence is also a constituent element in other torts, i.e.
used for determining liability in other torts — the fault basis. As a mental
element in other toils, i.e. the intentional torts, it means, usually, total or
partial inadvertence of the defendant to his conduct and/or the consequence
of it, e.g. a bank security officer who falls asleep thus enabling a thief to
steal from the bank is guilty of negligence as a tort.
Is there such a thing as unintentional trespass? See Lord Denning in Letang
v. Cooper.

Chapter 3

THE TASK OR AIM OF THE LAW OF TORTS

Prof. Glanville Williams has set out in a well-known article what he

believes to be the main aim of the common law of torts. These he states as:
(l)appeasement, (2) justice, (3) deterrence, and (4)compensation.
Of these, the prevalent view today seems to be that compensation is the
most important. The authors Hepple and Mathews, for example, state in
their book: "the primary function of the law of toils is to define the
circumstances in which a person whose interests are harmed by another
may seek compensation." The traditional way in which torts law has
achieved this aim of compensation has been through shifting the loss from
the person who suffered it to the person whose fault caused it. It did not
seek to spread the loss. Liability insurance has emerged in the last two
centuries as an important means for spreading the loss.
The 19th century has also, as earlier indicated, shifted the centre of gravity
of Toils from the intentional torts to those based on negligence. Industrial
and traffic accidents which followed in the trail of industrialisation in that
century have largely been caused negligently rather than intentionally. Such
industrial and traffic accidents are predictable, as a result of which people
nowadays take liability insurance policies to cover them. This predictability
has led to on-going critical reappraisal of the traditional task of torts law.
Those who criticise the present approach of torts law to the compensation of
personal injuries argue that private liability insurance and oilier schemes of
loss distribution have virtually destroyed the basis of liability in tort, i.e.
fault.
For deterrence, the objective usually cited to justify fault as a basis of
liability, no longer works in a good number of cases because defendants do
not satisfy the judgments from their own pockets — their insurers do this
for them — All this leads to arguments for strict liability.
Should we replace Torts law as a framework for our system of
compensation for personal injuries with an administrative law scheme
employing concepts of strict liability and compensation from a fund
financed by premiums or by tax?
For us, as pointed out by Date-Bali and Fiadjoe, in Ghana, an answer to
such a question must depend on a number of factors:
1. The cost of the new system.
2. The availability of administrative resources to manage the scheme.
3. The likelihood or otherwise of adverse effects on the economy.
For the foreseeable future, therefore, we are justified in assuming that Torts
law will remain central to our system of compensation for personal injuries
and property damage. From this perspective, the study of Torts law
remains a worthwhile and productive enterprise.
In the succeeding chapters, we will tum our attention to the substantive
torts.

Chapter 4

BATTERY
The tort of battery is committed by the intentional application of force to
another by direct means or through an unwelcome, physical contact,
irrespective of whether intent to harm or hostility involved. The elements of
this tort are:
1. Direct act of defendant — This requirement may be illustrated by
the following cases:
a) Scott v. Shepherd — per De Grey, C.J. (not lawfulness or
unlawfulness lest but direct or indirect).

b) In Leame v. Bray Lord Ellenborough observed:

"it is a settled distinction that where the immediate act itself occasions a
prejudice or is an injury to the plaintiff's person, land etc. trespass vi et
armis will lie: where the act itself is not an injury but a consequence from
that act is prejudicial to the plaintiffs person goods etc., trespass will not lie
... If the injury be committed by the immediate act complained of, the action
must be trespass; if the injury be merely consequential upon act, an action
upon the case is the proper remedy."

c) Miller v. Attorney-General

d) Covell v. Laming4 — The defendant rode his ship against that of i ic

plaintiff and caused injury to it thereby. The defendant had apparently tried
to steer clear of the plaintiffs ship but run into it (according to the report
either through negligence or ignorance). It was argued that, unless the
plaintiff could show that the defendant intended to bring his ship into the
plaintiffs and did so willfully, the action in trespass must fail. Lord
Ellenborough:

"... Whether the injury complained of arises directly or follows

consequentially, from the act of the defendant, I consider as the only just
and intelligible criteria of trespass and case. If, in the dark, I ignorantly ride
against another man on horseback, this is undoubtedly trespass, although 1
was not aware of his presence till we came into contact. It makes no
difference that here the parties were sailing on shipboard. The defendant
was at the helm, and guided the motions of his vessel. The winds and waves
were only instrumental in carrying her along in the direction which he
communicated. The force, therefore, proceeded from him; and the injury
which the plaintiff sustained was the immediate effect of that force."

From the cases, we can see that this element is not a 'directional.' Point but
an issue of "causation”. The defendants conduct must have caused the basis
in the case of battery that would be the physical contact.

2. The act complained of must be voluntary: This refers to controllability,

not whether the defendant acted willingly. This is illustrated by the case of.
Gibbons v. Pepper. In this case, the defendant rode a horse which took
fright and ran away with him. He couldn't stop the horse, so he shouted to
bystanders to give way. The plaintiff who could not get out of the way fast
enough was ran over by the horse. The defendant tried to show that the
accident was inevitable. Held: If I ride a horse and A whips the horse so that
it runs away with me and runs over another, A, not I, is liable in battery. But
if I, by spurring it, was the cause of such accident, then I am guilty.
Similarly if A takes B's hand and strikes C, A is the trespasser not B.

3. State of mind of defendant: To succeed, the plaintiff must establish

that the defendant acted either intentionally or negligently. As noted earlier,
intentionally here means deliberately; negligently refers to inadvertence or
recklessness.
That there can be a thing like negligent trespass or battery, however, was
doubted by Lord Denning in Letang v. Cooper.6 In that case, Lord Denning
observed:
"The truth is that the distinction between trespass and case is obsolete. We
have a different sub-division altogether. Instead of dividing actions for
personal injuries into trespass (direct damage) or case (consequential
damage), we divide the causes of action now according as the defendant did
the injury intentionally or unintentionally. If one man intentionally applies
force directly to another, the plaintiff has a cause of action in assault and
battery, or, if you so please to describe it, in trespass to the person ... if he
does not inflict injury intentionally but only unintentionally, the plaintiff
has no cause of action today in trespass. His only cause of action is in
negligence and then only on proof of want of reasonable care."

Diplock L.J. took the view that Denning had gone too far, i.e. his statement
was not necessary for the resolution of the dispute at hand. It was obiter.
Lord Denning's view noted above was supported in Wilson v. Pringle.
However, the orthodox view remains that trespass and the torts deriving
from it, e.g. battery, can be committed by intentional or unintentional
conduct.
Does the intention (state of mind) for trespass relate to the contact or
injury? In Wilson v. Pringle, the Court of Appeal said that it is intention to
make contact that constitutes trespass, not the formulation in one's mind of
a design.

Additional Cases:
a) Miller v. Attorney-General: intentionally applied force to the plaintiff.
b) Stanley v. Powell — pheasant shooting party, jury negatived
negligence. Held: No trespass in the absence of negligence by the
defendant. Here the plaintiff failed because he did not prove negligence.
c) Fowler v. Lanning, arises from Stanley v. Powell: ei incumbit probatio,
qui dicit non qui negat. literally, the burden of proof lies on the one
asserting a thing, not the one denying it.
d) Holmes v. Mather10 — horses were so startled by the barking of a dog
that they run with the groom and the defendant. Per Bramwell B:

"If the act that does an injury is an act of direct force vi et ermis, trespass is
the proper remedy (if there is any remedy) where the act is a wrongful,
either as being wilful or as being the result of negligence... where the act is
not wrongful for either of these reasons, no action is maintainable, though
trespass would be the proper form of action if it were wrongful."

4. There must be physical contact with the person of plaintiff.

This contact can be person to person or through an instrument. The
following cases illustrate the principle:
a) R. v. Cotesworth: The defendant spat into the plaintiffs face. Held:
battery, per Holt C.J.
b) Dumbell v. Roberts.] The plaintiff while on his way home in his
employer's uniform, was stopped by two defendants (police constables) and
questioned concerning a bag containing some soap flakes he was carrying.
Soap flakes were rationed goods during the war. The constables were
dissatisfied with the plaintiffs answers; they arrested and detained him, but
made no inquiries as to his name or address as required by law. In an action
for false imprisonment, Scott L.J. made this statement that it is
trespass to take fingerprints of a person in custody but not yet convicted or
even committed for trial without his or her consent.
c) Fagan v. Metropolitan Police Commissioner (car on to foot of
constable) — where there is a battery it does not matter whether the battery
is inflicted directly by the body of the offender or through the medium of
some weapon or instrument controlled by the action of the defendant.
d) Agbovi v. Setordzie
e) Cole v. Turner — Holt C.J. "the least touching of another in anger is a
battery." But should the touching be hostile before it can be trespass?
Relying on Cole v. Turner, the Court of Appeal answered yes in Wilson v.
Pringle. But this view was rejected by the House of Lords in Collins v.
Wilson. See also In Re F (per Lord Goff) where the rejection in Collins v.
Wilson was affirmed.
But how about removing his hat or throwing water on his clothes? For
example in Pursell v. Horn, an action was brought for trespass against the
defendant for assaulting the plaintiff, and throwing water upon him, and
also wetting and damaging his clothes. Trespass. The declaration stated that
the defendant Elizabeth, on, &c, assaulted the plaintiff, "and then cast and
threw divers large quantities of boiling water on the plaintiff, and also then
wetted, damaged, and spoiled the clothes and wearing apparel, to wit, one
great coat," & c., of the value, &c, "which the plaintiff then wore: "by
means of which he was hurt, scalded, &c, and forced to expend money in
endeavouring to cure himself." Lord Denman C J. I think that a battery
does not necessarily mean something done cominus. But it must imply
personal violence; and I think that the matter justified by this plea is not a
battery. The rule must be absolute. Littledale J. The argument for the
plaintiff on the first point would go the length of saying that to shoot at a
person and hit him would be no battery. Patterson and Williams JS.
concurred. Rule absolute.
It is battery to throw water over a man or to overturn a chair on which he is
sitting, eg Dodwell v. Burfpjd. The defendant struck a horse which the
plaintiff was riding and the plaintiff was thrown and injured. Held that it
was battery

5. Lack of Consent
The plaintiff must prove that he or she did not consent to the contact. This
can be proved in three ways:
(i) Express consent:
It is not a battery, if the defendant proves that the plaintiff expressly agreed
or submitted to the contract. Many events of everyday occurrence, e.g. a
haircut, a surgical operation or a passionate embrace will be battery but for
the fact that consent operates as a defence to action in battery.
(Football, boxing etc. but not boxing during football — but man nodding
during a header will be, covered!!). A good example is —
a) Christopher v. Bare. The defendant suggested in the pleadings that the
plaintiff was assaulted with his consent. It was held: Assault must be an act
against the will of a party assaulted: therefore it cannot be said that a party
has been assaulted with his own permission.
b) Nash v. Sheen: The plaintiff asked a hairdresser for a permanent
wave; instead the hair was given tone rinse which dyed the plaintiffs hair
an unpleasing colour and caused him a painful rash all over his body. Held:
dye was applied without the plaintiff's express consent; the consent which
was given was for a permanent wave. So there was a battery.

(ii) Presumption of consent

There is a presumption, in general, of consent to all non-hostile contacts
merely incidental to living in a community. Thus, in Cole v. Turner, Holt
C.J. said:
"if two or more meet in a narrow passage and without any violence or
design of harm, one touches the other gently, no battery. But if one in a
desire to gain advantage shoves another aside in an inordinate and violent
manner, this is a trespass."

(iii) Privileged contact

Privileged contact (allowed by law), may be illustrated by Wiffin v.
Kincard. In this case, the defendant touched the plaintiff with his constable
staff; later, he held him by the collar. Held: the touch in order to engage the
plaintiffs attention was not a battery. Also in Coward v. Baddeley, the
plaintiff sued for assault and false imprisonment. The defendant justified
his action on the ground that he was first assaulted by the plaintiff. The
facts show that the defendant was engaged in extinguishing a fire. The
plaintiff told him he was doing it badly. The defendant told him to mind his
own business. The plaintiff then put his hand on the defendant's shoulders,
turned him round to show him how the hose should be managed.
Thereupon defendant gave plaintiff into custody. The jury was told that in
the circumstances, the defendant's arrest of the plaintiff were unjustified
unless plaintiffs act had been hostile. This direction was held to be correct.
It was also held that there was absence of intent for criminal assault such as
to justify an arrest: the court expressed the view that perhaps the plaintiff
could be liable for battery because the defendant could not be said to have
consented to the way he was handled by the plaintiff.
To determine whether a contact is privileged, look at:
a) Nature of the act. — a blow or a pat?
b) Intention with which the act was done.
Sexual touching can amount to a battery — Guarro v. US e.g. pinching a
person's buttocks.

6. Positive act not omission to act

In battery, liability depends on an act, not a failure/omission/refusal to act.
The maxim is: 'Not Doing Is Not Trespass'. The case of Innes v. Wylie
illustrates the point. In that case the plaintiff who had been expelled from a
club attempted to enter the rooms of the club, but was prevented by a
policeman who stood in the doorway and refused to let the plaintiff pass.
Lord Denman, CJ instructing the jury said at 263:

"You will say, whether, on the evidence, you think the policeman
committed an assault on the plaintiff, or was merely passive. If the
policeman was entirely passive like a door or a wall put to prevent the
plaintiff from entering the room, and simply obstructing the entrance of the
plaintiff, no assault has been committed on the plaintiff and your verdict
will be for the defendant. The question is did the policeman take any active
measures to prevent the plaintiff from entering the room, or did he stand in
the doorway passive, and not move at all."

They found for the plaintiff. So presumably they found that the policeman
had taken active measures to block the plaintiffs way. See also Adu Kofi v.
Amanado.

Questions
"Come and kill me today" says a wife to her husband who then administers
a slap to her face: Does this amount to consent?
Chapter 5

ASSAULT

Assault — This tort is unique in the common law in providing relief for a
mere emotional disturbance unaccompanied by external physical contact.
Assault seeks to protect the plaintiff's interest in freedom from being
subjected to mental anxiety. The law, i.e. the requirements, are
substantially the same as that of battery, except that, in assault, there is only
an apprehension of imminent physical contact.
Assault may thus be described as an incomplete battery. Timorousness on
the part of the plaintiff is relevant; provided the defendant excites
apprehension or fear of contact in him, there is assault. But note not just
fear; it must be fear of contact. For example, neither a gesture (a) behind
bar, or (b) by a person firmly secured from causing harm to others can
constitute assault because any fear one feels of being hurt would be
considered unreasonable in law. For in the person's situation, he cannot
carry out his threat. This means for the threat of battery to amount to
assault, the threat must be real or reasonable.
In Read v. Coker,the plaintiff, a paper stainer, was in financial difficulties
and owed rent. The defendant paid the rent and bought his equipment under
an agreement which secured for the plaintiff a weekly allowance. One day,
the defendant asked him to leave the premises. The lain tiff refused. The
defendant thereupon collected together his workmen who musterec round
the plaintiff tucking up their sleeves and aprons and threatened to break the
p. tin tiffs neck if he did not leave. The plaintiff left, and brought an action
for assault. It was held: No words can amount to assault; but there were
here threats of violence, exhibiting an intention to execute the threat,
coupled with ability to act. i.e. present ability to carry the threat into
execution. As was stated by Jervis C.J:

"... If anything short of actual striking will in law constitute Lin assault, the
facts here clearly showed that defendant was guilty of assault. There was a
threat of violence exhibiting an intention to assault, and a present ability to
carry the threat into execution."

It is not every threat then which constitutes assault. To constitute an

assault, there must be an act constituting a threat, to do personal violence to
the party, complaining, coupled with a present ability to carry out the
threat. There must be some act done denoting an intention to commit a
battery plus the ability there and then to carry out the threat. The concern
therefore is with an intentional conduct which puts a person in reasonable
fear or apprehension of imminent battery.
A vivid analogy is the difference between the BARK of a dog, which
equals
assault and the BITE which is battery. The law of assault thus has all the
ingredients of a battery except physical contact. The tort, however stresses
two things: (a) an act manifesting an intention or threat of the defendant to
commit battery; and (b) the defendant's ability to execute this intention, i.e.

the defendant was in a position to commit and did manifest an intention to

commit battery: see Thomas v. National Union of Mine workers (South
Wales Area); and Stephen v. Myers. In Stephens v. Myers the plaintiff was
acting as chairman at a parish meeting, and sat at the head of the table at
which the defendant also sat. There were about six or seven people between
the plaintiff and the defendant. In the course of some angry discussion, the
defendant made himself totally intolerable (interrupted the proceedings)
and a motion was moved and passed to eject him from the meeting. The
defendant said he would rather pull the chairman out of the chair than allow
himself to be turned out. He advanced threateningly towards the chairman
with his fists clenched but he was stopped by the church warden before he
got near enough to do any harm. The plaintiff (i.e. the chairman) sued him
for assault. Tindal C.J. in his summing up said:

"It is not every threat, when there is no actual personal violence, that
constitutes an assault, there must, in all cases, be the means of carrying the
threat into effect. The question I shall leave to you will be whether the
defendant was advancing at the time in a threatening attitude, to strike the
chairman, if he had not been stopped; then, though he was not near enough
at the time to have struck him, yet if he was advancing with that intent, I
think it amounts to an assault in law. If he was so advancing that, within a
second or two of time, he would have reached the plaintiff, it seems to me
it is an assault in law. ..."

The jury found for the plaintiff, so it is assault.

Therefore, if we look at assault from this angle, that is, a threat and ability
to carry out the threat, to point an unloaded gun at another constitutes no
assault. The point is illustrated by the decision in Blake v. Barnard!" Here
there was proof of the pointing of a pistol at the plaintiff's head, but there
was no proof of the pistol being loaded. The court held there was no
assault.
Attempts have been made to diminish the authority of the case on the
grounds that it was decided on a pleading point. But it is entirely consistent
with the old law's conception of assault as a threat of battery plus present
ability to effect the threat.
We may also look at the decision in Osborn v. Veitch. There, it was held
that to point a half-cocked gun to the head of another, and threaten to shoot
was an assault, since cocking the gun was as good as having loaded it. See
also Miller v. A-G per Abban J (as he then was): To point a loaded revolver
at another in such a hostile manner and within shooting distance and which
conduct puts that other person in reasonable fear or apprehension of a
battery constitutes assault.
But, in R. v. St. George, it was held that to point an unloaded gun at
another in circumstances that if it had been loaded its discharge would have
been likely to cause injury is an assault, unless the intended victim knows it
to be empty. In contrast with the decision in Blake v. Barnard, it was held
that, whether loaded or unloaded, a pistol is a pistol and to point it at a
person therefore constitutes assault. Once the plaintiff apprehends
imminent physical contact, then, it is an assault. This is contrary to the
decision in Blake v. Barnard.
In Mortin v. Shoppee,10 the defendant chased the plaintiff with an uplifted
whip intending to strike him but the plaintiff escaped. Chasing with an
uplifted whip was held to be assault, because the defendant was advancing
with intent and he had the ability to execute the threat. In Read v. Coker,
the mere surrounding of the plaintiff with servants was held to constitute
assault.
Can mere words constitute an assault? In the old law, words per se, no
matter how menacing, did not constitute assault. This was justified on
grounds that merely saying and not doing does not constitute trespass. In
Meade v. Belt's. Case,11 the defendants went to Meade's house at night and
threatened to show him if he came out. They sang threatening war songs
and used violent language. Meade came out with a loaded gun and shot one
of them. It was held that the attack on the house at night constituted assault,
and not the words per se. But in R. v. Wilson, the appellant was caught
poaching by a gamekeeper. He was charged with assault on the
gamekeeper with intent to evade arrest. The arrest was found unlawful
because only the name instead of the name plus address, as required by
statute, was asked for by the gamekeeper. The poacher was convicted of
common assault and appealed. It was held that when he was surprised by
the gamekeeper, he shouted "Get out knives." Per Lord Goddard, C.J.:
"... No doubt what the court thought was the serious part of this case ... was
that the man threatened to get out knives. He called out "Get out knives",
which itself would be an assault, in addition to kicking the gamekeeper."
R. v. Wilson thus hold that words can cause assault, provided they create a
reasonable apprehension of imminent physical contact.
Even if words alone cannot constitute assault, words accompanying an act
can negate assault, so it was held in Tuberville v. Savage. This was an
action for assault, battery and wounding; the defendant alleged
provocation. The evidence to prove the provocation was that the plaintiff
put his hand on his sword and said: "if it were not assize-time, I would not
take such language from you." Was that an assault? The court held that it
was not. For what the plaintiff meant was that he would not assault him
because the judges were in town. The intention as well as the act equals
assault.

"Therefore if one strike another upon the hand, or arm or breast in

discourse, it is no assault, there being no intention to assault; but, if one,
intending to assault, strike at another and miss him, this is an assault; so if
he holds up his hand against another in a threatening manner and says
nothing, it is an assault."
Judgment was given in favour of the plaintiff in the substantive suit. A
point to note here is that the touching of the sword was considered an
assault by itself.
Bruce v. Dyer,' provides a reasonable rationalisation of the controversy
over loaded and unloaded guns, toy weapons and words. In that case,
Ferguson J put die point as follows:

"Usually, when there is no actual intention to use violence there can be no

assault. When there is no power to use violence to the knowledge of the
plaintiff there can be no assault. There need not be in fact any actual
intention or power to use violence, for it is enough if the plaintiff on
reasonable ground believes that he is in fact in danger of violence. So if a
person shakes his fist at another the person so assaulted may strike back, if
he, on reasonable grounds, believes that he is in danger."

Principles governing the award of damages: battery and assault

Assault and battery are actionable per se. Once the tort is acknowledged,
damages are at large. Any consequential loss, e.g. damage to chattels or
physical injuries, is recoverable, if it is not too remote. But the quantum of
the damages depend on proof of actual loss.
In Nsiah v. Ampratwum, Apaloo J (as he then was) assessed general
damages at £1,500 in favour of the plaintiff because he found the

"assault was outrageous in the extreme and was, entirely unprovoked. The
plaintiff was severely beaten and left for dead and with a stroke of bad
luck, may well have died ... In all the circumstances of this case, and
bearing in mind that the first defendant used these sanitary labourers as
tools to vent his private vengeance on the plaintiff and did so callously. ..."
See also Glover v. London S. S.W. Rly., and Cobbold
v. Grand.
Chapter 6

UNLAWFUL ARREST

Everyone in Ghana is entitled to freedom from physical restraint and

is protected against unlawful interference with his or her freedom of
movement and personal liberty. The tort of unlawful arrest secures
these freedoms. The law on unlawful arrest is to be found in three
sources: (a) the common law; (b) the Criminal; Procedure Code, 1960
(Act 30) as amended by N.R.C.D. 235: and (c) articles 14 and 21 of
the Constitution. 1992 of Ghana.

The case of Christie v. Leachinsky provides the common law rules. In

that case, the appellants who were Liverpool police officers arrested
the respondent at his warehouse in Liverpool, without a warrant. At
the time, they suspected and had reasonable grounds for suspecting
that he had stolen or feloniously received, at Leicester, a bale of cloth
then in the warehouse, but they did not give this as the ground of the
arrest. Instead they said they were arresting him on a charge of
"unlawful possession" under the Liverpool Corporation Act, 1921,
though in the circumstances, the Act gave them no power of arrest
without warrant. The respondent was taken to the police station and
brought before a magistrate on the unlawful possession charge. In an
action for false imprisonment, the appellants sought to justify the
arrest and detention on the common law ground. Per Viscount
Simons."
"(1) If a policeman arrests without warrant upon reasonable suspicion
of felony, or of other crime of a soil which does not require a warrant,
he must in ordinary circumstances inform the person arrested of the
true ground of arrest. He is not entitled to keep the true, ground to
himself or to give a reason which is not true. In other words, a citizen
is entitled to know on what charge suspicion of what crime he is
seized.
(2) If the citizen is not so informed hut is nevertheless seized, the
policeman, apart from certain-exceptions is liable for false
imprisonment.
(3) The requirement that the person arrested should be informed of the
reason why he is seized naturally. does if the circumstances are such
that he must know the alleged offence for which he is detained.
4) The requirement that he should be so informed does not mean that
technical or precise language need be used. The matter is a matter of
substance, and turns on the elementary proposition that, in this
country, a person is, prima facie, entitled to his freedom and is only
required to submit to restraints on his freedom if he knows in
substance the reason why it is claimed that this restraint should be
imposed.
(5) The person arrested cannot complain that he has not been supplied
with the above information, as and when he should be if he himself
produces the situation which makes it practically impossible to inform
him e.g. by immediate counterattack or by running away....
These principles equally apply to a private person who arrests on
suspicion."
Per Lord Simonds at 591:

"Blind, unquestioning obedience is the law of tyrants and of slaves: it

does not yet flourish on English soil."

Nobody therefore has a right to an another unless authorised by-law.

As indicated earlier, the law on arrest is contained in the Criminal
Procedure Code, I960 (Act 30). Under the general law i.e. Act 30
there are two types of arrest:
1. Arrest with a warrant, in which case there can be no action
because the warrant is issued by a judicial officer and the judicial
officer's intervention ends any action, i.e. false Imprisonment. This is
because, constitutionally, a judge enjoys immunity from action.
2. Arrest without warrant.
Both types of arrest are regulated by various provisions of Act 30.

1. Arrest with a warrant under sections 71-81 of Act 30

Sections 72-73(1) provide that the warrant can be issued only by a
judge upon a complaint or charge made before him on oath. Section
73(2) requires that the warrant must:
a) state briefly the offence with which the person against whom it is
issued is charged;
b) indicate the name or other description of the person e.g. Koku
Mensah; and
c) order the person persons to whom it is directed to apprehend the
person against whom it is issued and, bring him before the issuing
court or some other court with jurisdiction over the matter to answer
the charge(s) against him and to be further dealt with according to law.
The warrant remains force until executed or cancelled by the issuing
court. The warrant may be directed to more officers or persons than
one. The person executing the warrant is required without unnecessary
delay, to bring be person arrested before the court mentioned in the
warrant, with an endorsement showing time and .place of the
execution.
Where a person has been lawfully arrested, the police can search the
premises or his person and seize material relevant to the prosecution
of any crime committed by any person. Generally, therefore, the law
requires arrests to be made with a warrant
2. Arrest without warrant
The law distinguishes between arrest private , individuals, and by law
enforcement agents e.g. the police, without a warrant. In this case, a
police officer or other law enforcement agent having police powers
has greater protection than a private citizen i.e. greater powers of
arrest without warrant. This is regulated by sections 10 and 12 of Act
30 as amended by the Criminal Code (Amendment) Decree, 1975
(NRCD 235).
(a) Arrest by a private person:
Section 12 of Act 30 as amended by the Criminal Code (Amendment)
Decree, 1975 (NRCD 235) regulates this subject. The relevant rules
are briefly stated below. A private person may arrest without warrant
any person who, in his presence, commits five offences namely

1. any offence involving the use of force, or violence;

2. any offence whereby bodily harm is caused to any person;
3. any offence in the nature of stealing or fraud;
4. any offence involving injury to public properly;
5. any offence involving injury to property owned by, or in the
lawful care or custody of that private person.
Further, a private person may arrest without warrant any person whom
he reasonably suspects of having committed any of the offences
mentioned above, provided that an offence of that nature has in fact
been committed. The case of Waller v. Smith & Sons explains this
provision. In that case, the plaintiff was for nine years assistant
manager at a bookstall of the defendants at the King's Cross Railway
Station of the Great Northern Railway. Early in 1912, at the half
yearly stocktaking, deficiencies were discovered. It was clear this
must be due to pilfering on the part of one or more of the defendants'
servants. Stocks were taken in February, and April and further
deficiencies were noted. The defendants, in order to detect the culprit,
set a trap. Copies of the book "Traffic" were marked and delivered at
the bookstall at King's Cross. An agent of the defendants went to a
shop at Staines kept by the plaintiff and his wife to purchase a copy of
the book. One of the marked ones was sold to him. The book had been
taken by the plaintiff on 15 June, 1912 from the bookstall without
payment having been made and without the knowledge, of the
manager or the assistants. After inquiries, it was discovered that the
plaintiff had also breached his contract by setting up, together with his
wife, a rival company. The plaintiff was questioned and he gave
unsatisfactory answers as to how he came to possess the marked book.
Mr. Hornby honestly believed the plaintiff to have been responsible
for the thefts which had been going on, and handed him over to the
police. He was taken to the police court and charged with stealing the
book. He was eventually acquitted. His defence, which was accepted
by the jury, was that, in taking the book, he had no felonious intent. In
the substantive suit, the defendant did not allege that he had stolen the
book and did not associate him with the earlier thefts. He instituted his
action for false imprisonment and malicious prosecution.
Sir Rufus Isaacs C.J., relying on the statement of law, as is to be found
in Bullen & Leake's Precedents of Pleading (3r ed) p. 797 stated the
applicable law as follows:
"At common law, a police constable may arrest a person if he has
reasonable cause to suspect that a felony has been committed although
it afterwards appears that no felony has been committed, but that is not
so, when a private person makes or causes the arrest, for to justify his
action he must prove, inter alia, that a felony has actually been
committed. ... I have come to the conclusion that it is necessary for a
private person to prove that the same felony had been committed for
which the plaintiff had been given into custody. ..."

He stated:
"A private individual is justified in himself arresting a person or
ordering him to be arrested where a felony has been committed and he
has reasonable grounds of suspicion that the person accused is guilty
of it ~ that means the felony for which he has been arrested."

He further stated:
"Where a person, instead of having recourse to legal proceedings by
applying for a judicial warrant for arrest or laying an information or
issuing other process well known to the law, gives another into
custody, he takes a risk upon himself by which he must abide, and, if,
in the result, it turns out that the person arrested was innocent, and that
therefore the arrest was wrongful, he cannot plead any lawful excuse
unless he can bring himself within the proposition of law which I have
enunciated in this judgment. In this case although the defendants
thought, and indeed it appeared that they were justified in thinking,
that the plaintiff was the person who had committed the theft, it turned
out in fact that they were wrong. The felony for which they have
handed the plaintiff into custody had not in fact been committed, and,
therefore, the very basis upon which they must rest any defence of
lawful excuse for the wrongful arrest of another fails them in this case.
Although I am quite satisfied, not only that they acted with perfect
bona fide in the matter but were genuinely convinced after reasonable
inquiry that they had in fact caught the perpetrator of the crime, it now
turns out that they were mistaken, and it cannot be established that the
crime had been committed for which they gave the plaintiff into
custody; they have failed to justify in law the arrest, and there must,
therefore, be judgment for the plaintiff. .. ."

In summary, the law allows a private individual to arrest another on

suspicion.
However three conditions must be satisfied otherwise the arrest will
be unlawful. First,
the basis for the suspicion must be reasonable. Second, the arrest must
be related to the five offences listed above. Third the offence must
have actually been committed by the person being arrested. The law is
thus clear that when a private individual arrests another without a
warrant and the suspected offence is found not to have been
committed for whatever reason he opens himself to a suit for unlawful
arrest.

(b) Arrest by police officer

This subject is regulated by section 10 of Act 30 as amended by the
Criminal Code (Amendment) Decree, 1975 (NRCD 235). As with the
case of an arrest by an individual without a warrant, the applicable
rules provide for two different scenarios. Thus:
(1) A police officer may arrest without warrant any person who:
a) commits an offence in his presence;
b) obstructs a police officer in the execution of his duty, i.e. in the
lawful execution of his duty;
c) has escaped or attempted to escape from lawful custody;
d) has in his possession any implement adapted or intended for use
in unlawfully entering any building, and who gives no reasonable
excuse for his possession of it;
e) has in his possession anything which may reasonably be
suspected to be stolen property.
It must be noted that, unlike arrest by a private individual, here in the
case of a police officer or a law enforcement agent, there, is no
requirement that the offence must be committed in his presence and
there is no limit on the offences for which the arrest can be made.
(2) A police officer may arrest without warrant any person whom
he suspects upon reasonable grounds:
a) of having committed an offence;
b) of being about to commit an offence, where there is no other
practicable way of preventing the commission of the offence;
c) of being about to commit an offence, where he finds such a person
in any highway, yard, building or other place during the night;
d) of being a person for whom a warrant of arrest has been issued by
a court;
e) of being a deserter from the Armed Forces;
f) of having been concerned in any act committed outside Ghana,
which, if committed in Ghana, would have been punishable as an
offence, and for which he is, under any enactment, liable to be arrested
and detained in Ghana.

In the case of arrests by police officers on suspicion, the law only

requires that the police officer grounds for suspecting the arrestee be
reasonable. The decision in Dallison v. Caffery provides the test for
what is reasonable. In that case, an amount of £173 was stolen from
the office of a solicitor at Dunstable. A man named Dallison was
arrested and charged with the offence. At the Quarter Sessions,
counsel for the prosecution offered no evidence against the plaintiff,
stating that it was a case of mistaken identity. Accordingly, the
plaintiff was acquitted and discharged. The police officer in charge
was Caffery. The plaintiff sued Caffery for false imprisonment and
malicious prosecution. The judge dismissed the claim. He appealed.
Lord Denning was satisfied that the defendant had reasonable cause
for suspecting that the plaintiff had committed the crime. The test for
reasonableness for the arrest is objective namely:
"Whether a reasonable man, assumed to know the law and possessed
of the information which in fact was possessed by the defendant
would believe that there was reasonable and probable cause."

General provisions relating to arrest

Section 3 of Act 30 is relevant here. To arrest a person you must
actually touch or confine the body of the arrestee, unless he submits to
custody by word or deed. A case which illustrates this requirement is
the case of Asante v. The Republic. In that case K lodged a complaint
that she had been assaulted by the appellant. An escort police
constable was detailed to go with her to invite the appellant to the
police station. The police constable, when the appellant was found,
showed him his identity card and invited him to the police station. The
appellant refused to go. The police constable did not tell him why he
was wanted at the station. Upon the appellant's refusal, the police
constable seized his ignition key thus preventing him from driving
away. To retrieve the key, the appellant knocked the police constable
down and whilst the police constable was on the ground, kicked him
injuring him and damaging his trousers. The appellant was convicted
of two charges of assault on the police constable in the execution of
his duty and of causing damage to the property of the police constable.
He appealed arguing:
a) his arrest was unlawful on the evidence;
b) ipso facto, he was justified in resisting unlawful arrest; and
c) his conviction on charge 2 was bad because the value of the
property rather than the value of damage was considered.
His appeal was allowed on the ground that the arrest was unlawful
because:
The police constable failed to put the appellant under lawful arrest by
not informing him of the cause of the arrest as required by section 10
of Act 30 (now NRCD 235) which empowers a police man to arrest
without warrant; and the police constable committed assault on the
appellant by refusing to leave the spot where the appellant was and
seizing his ignition key which was not an integral part of the process
of arresting the appellant.
Anterkyi J stated at 193:
"And if as the jeep id shows, the EPWI merely told the appellant that
he was wanted. It or being invited to the police station, the appellant
was not legally obliged to go there for a mere chat."

The conviction on charge two was also set aside because the appellate
court agreed with him.

Section 4. If you are arresting A by warrant and you believe he has

entered a house, the occupier is required to afford you reasonable
facilities to search the place for the person. If this fails, you can break
into the place to effect the arrest.

Section 5. The person effecting the arrest may likewise break out to
liberate himself.
Section 6. DPP v. Hawkson; Lewis v. Chief Constable. Person
arrested is to be subjected to no more restraint than is necessary to
prevent his escape, see Article 15 of 1992 Constitution.

Section 7. Unless the arrestee is caught in flagrante delicto, the

arrestor shall inform the arrestee of the cause of the arrest; where he is
acting under a warrant, notify the arrestee of the substance of the
warrant and show it to him if he so desires. We can illustrate this
provision by reference to the decision in Yaw v. Cobbina. In Yaw v.
Cobbina, the plaintiff had earlier lodged a complaint for the ejection
of his caretakers from the farm.
Until late in 1958, he was the chief of Yamfo, a town near Sunyani.
He was destooled and notice to that effect was published in the
Gazette of November 1958. He was further ordered to hand over all
the stool properties to Nana Boama 11, the new chief, who was
authorised to seize and take possession of such properties. He was
allegedly restrained when he would not give up the black stools and
imprisoned in Sunyani. Police justification was that he was arrested
and detained for committing in their presence the offence of hindering
the recovery of the stool property. He further alleged that he was not
told the reason why he was arrested. The plaintiff sued for £5,000
damages for unlawful arrest and false imprisonment. Held: The arrest
and detention were not unlawful and the plaintiff was released, as
soon as the police decided not to prosecute him. It was not unlawful
because it was in consequence of his refusal to hand over the black
stools, an act which was an offence liable to summary conviction
under the Statutes Law
(Amendment) (No. 2) Act, 1957, s. 7. In the circumstances, he ought
to have known the reason for his detention and it was not necessary
for him to be told.

In Asumani Bugembe v. Attorney-General, from conflicting evidence,

the court found that the plaintiff was injured when resisting arrest in
his shop at Nakawa, in the city of Kampala but that the police failed to
inform the plaintiff of the reason for his arrest. The plaintiff sought
damages for assault. Benne Ag. C.J. (Uganda) said:

"I am satisfied on a balance of probabilities, that Sergeant Aliangwa

did go to the plaintiff's shop after the plaintiff had refused to make a
statement to Detective Constable Loumi; that because the plaintiff
threatened Loumi, Aliangwa had decided to arrest the plaintiff; that
before he could do so and before he had laid hands on the plaintiff, the
plaintiff assaulted him and pulled him into the shop. I believe that
Aliangwa and the other members of the police party were on the
defensive throughout, although no doubt they fought back in
defending themselves against overwhelming odds. I am satisfied that
the plaintiffs injuries were sustained in this affray, while the police
were lawfully defending themselves against an unruly mob of whom
the plaintiff was the leader. I am satisfied that, when Inspector Kasoro
and his party of police arrived on the scene, the plaintiff and his mob
were actively engaged in attacking Sergeant Aliangwa and another
policeman.
In my judgment, Inspector Kasoro was justified in arresting the
plaintiff. The plaintiff was not at that time lawfully resisting an
attempt to arrest him. As already indicated, I believe that the plaintiff
resorted to violence before Sergeant Aliangwa laid hands on him. One
of the requirements of a lawful arrest at common law is that the person
arrested should be informed of the reason of his arrest: see Ciiristie v.
Leachinsky [1947] A.C. 573 and Mwangi s/o Njeroge v. R. (1954) 21
E.A.C.A, 377 (K). There are two exceptions to this rule which are
stated thus in speech of Viscount Sirnon in the English cases:
1. The requirement that the person arrested should be informed of the
reason
why he is seized naturally does not exist if the circumstances are such
that
he must know the general nature of the alleged offence for which he is
detained. ...
2. The person arrested cannot complain that he has not been supplied
with
the above information as and when he should be, if he himself
produces
the situation which makes it practically impossible to inform him,
example by
immediate counter-attack or by running away.

In my judgment both these exceptions are applicable to the

circumstances of the instant case. I find that the plaintiff's arrest by
Inspector Kasoro was lawful. The plaintiff's case is dismissed and he
is ordered to pay the defendant's costs. "

Section 8. The arrestee is to be decently searched and all things found

on him placed in safe custody.

Section 9. The arrestee must be taken with all reasonable despatch to a

police station other place where the arrestee can be taken and to be
told, without delay of the cl t against him. The arrestee is to be given
reasonable facilities for obtaining legal advice taking steps to furnish
bail and making arrangements for his defence or release

Section 14. Any private person arresting without warrant shall

without unnecessary delay hand arrestee over to a police
officer/station or take him to nearest police station

Section 15. A person taken into custody without warrant shall be

released not later 48 hours unless he is earlier brought before a court.
He can be bonded with or without sureties to appear before such court
or police station or place and at such time is stated in the bond.
As indicated at the beginning of this chapter, article 14 of Constitution
1992 1 provides rules for the tort of unlawful arrest,

Article 14 of the Constitution, 1992 provides as follows::

"(1) Every person shall be entitled to his personal liberty and no
person shall be deprived of his personal liberty except in the following
cases and in accordance with procedure permitted by law—
(a) in execution of a sentence or order of a court in respect of a
criminal offence of which he has been convicted; or
b) in execution of an order of a court punishing him for contempt of
court; or
c) for the purpose of bringing him before a court in execution of an
order of a court; or
d) in the case of a person suffering from an infectious contagious
disease, a person of unsound mind, a person addicted to drugs or
alcohol or a vagrant, for the purpose of his care or treatment or the
protection of the community; or
e) for the purpose of the education or welfare of a person who has
not attained the age of eighteen years; or
f) for the purpose of preventing the unlawful entry of that person into
Ghana, or of effecting the expulsion, extradition or other lawful
removal of that person from Ghana or for the purpose of restricting
that person while he is being lawfully conveyed through Ghana in the
course of his extradition or removal from one country to another; or
(g) upon reasonable suspicion of his having committed or being about
to commit a criminal offence under the laws of Ghana.
(2) A person who is arrested, restricted or detained shall be
informed
immediately in a language that he understands, of the reasons for his
arrest,
restriction or detention and of his right to a lawyer of his choice.
(3) A person who is arrested, restricted or detained —
a) for the purpose of bringing him before a court in execution of an
order of a court; or
b) upon reasonable suspicion of his having committed or being
about to commit a criminal offence under the laws of Ghana, and who
is not released
shall be brought before a court within forty-eight hours after the arrest,
restriction or detention.
4) Where a person arrested, restricted or detained, under paragraph
(a) or (b) of clause 3 of this article is not tried within a reasonable
time, then, without prejudice to any further proceedings that may be
brought against him, he shall be released, either unconditionally or
upon reasonable conditions, including in particular, conditions
reasonably necessary to ensure that he appeals at a later date for trial
or for proceedings preliminary to trial.
5) A person who is unlawfully arrested, restricted or detained by
any other person shall be entitled to compensation from that other
person.
(6) Where, a person is convicted and sentenced to a term of
imprisonment
for an offence, any period he has spent in lawful custody in respect of
that offence
before the completion of his trial shall be taken into account in
imposing the term
of imprisonment.
(7) Where a person who has served the whole or a part of his
sentence is acquitted on appeal by a court, other than the Supreme
Court, the court may certify to the Supreme Court that the person
acquitted be paid compensation; and the Supreme Court may, upon
examination of all the facts and the certificate of the court concerned,
award such compensation as it may think fit; or, where the acquittal is
by the Supreme Court, it may order compensation to be paid to the
person acquitted."
Chapter 7

FALSE IMPRISONMENT

The tort seeks to protect a person's interest in freedom from physical

restraint (i.e. protects freedom of movement) and therefore the right to move
about freely and apparently also the plaintiffs belief in this freedom. This
right is also protected by articles 14, 15, 21(l)(g); (2); (4); and (5) of the
Constitution, 1992. As a trespass, the act which causes the restrain must be
direct and must be intentionally done by the defendant. Whether it can be
negligently caused will be dealt with later. Further. The act must cause the
confinement of the plaintiff to an area delimited by the defendant.

False imprisonment is founded on two ingredients:

(a} imprisonment (b) absence of justification. "False" simply means
erroneous, wrongful or unlawful and not untruthful. "Imprisonment''
should not bring a prison to mind. The term is used loosely to denote a
confinement any place. Neither physical contact nor anything resembling
prison is necessary. Imprisonment has thus been said to be in:

"the restraint of a man's liberty, whether it be in the open field, or in the

stocks or cage, or in the gaol. And, in all these places, the party so restrained
is said to be a prisoner, so long as he hath not his liberty freely to go at all
times to all places whither he will, without bail or main prize." Termes de la
Ley.

Thus in Warner v. Riddiford,1 the defendant, a beer-house operator,

employed the plaintiff to carry on his business at weekly wages
determinable, under the agreement, on a month's notice. The defendant gave
the plaintiff a week's notice, checked the accounts and asked the plaintiff to
make up the difference. The plaintiff refused on the ground that he had not
been given the stipulated months’ notice. The defendant brought in two
police officers. One of the officers, when the plaintiff tried to go upstairs,
refused to allow him to do so. Later, he was allowed to go accompanied.
When he persisted in refusing to make the difference, he was taken into
custody and charged with embezzlement. He was discharged. The plaintiff
then brought the action for false imprisonment. The judge, in his direction to
the jury, told them that they had to consider three questions: whether there
was any imprisonment by whom?; and any legal justification for it? on (1)
he told them:
"to constitute an imprisonment, it was not necessary that the person should
be locked up within four walls, but that, if he was restrained in his freedom
of action by another that was an act of imprisonment, and that the way in
which the plaintiff had been constrained in his own house and the restraint
put upon his person by refusing him permission to leave the room and go
upstairs in his own house, was in itself an imprisonment..."
On appeal, this direction was held to be a correct statement of the law.
But the restraint in order to amount to imprisonment must be total. In other
words, the person must be confined in all directions. If it is only partial,
leaving a reasonable means of escape, then no false imprisonment has
occurred. A case in point is Bird v. Jones?' In that case, the defendant
blocked one side of the Hammersmith Bridge to form a grandstand for a
boat race, thus preventing the plaintiff's passage. The plaintiff refused to
cross by the opposite path. It was held that there was no false imprisonment
because he had reasonable means of leaving. The plaintiff was not restrained
in every direction; therefore the restraint was not total. Another example is
Wright v. Wilson: In this case, A's chamber adjoins to B's chamber and has a
door that opens into it by which there is a passage to go out. A has another
door which C stops, so that A cannot go out. It was held that there was no
false imprisonment, because A may go out by the door in B's chamber. He
will be a trespasser, but can sue C in an action on the case. C.J. Holt stated
that an auction in false imprisonment will fail when a man has two doors
through which he can go out and one is blocked, leaving the other free,
though the second one, he can go through only as a trespasser, But an escape
route which exposes A to danger is unreasonable and amounts to false
imprisonment.
This decision raises the following question: What do we mean by the means
of escape being unreasonable. For example, let us look at a few examples:
a) A is in a pool naked. B steals his clothes. Is it false imprisonment, if A is
thereby compelled to remain in the pool? Or, is it reasonable that he can
come out of the water naked? See Sayers v. Harlow Urban D.C
b) A turns a key on someone in a room on the ground floor with windows.
c) Same facts as in (b) except that the room is at the top of a skyscraper
with windows open.
a) A parks his car in a parking lot blocking B, who then misses an
important business meeting.
b) A drains petrol from B's car to prevent B from driving away.
c) Can a person refused a passport so that he cannot travel outside sue for
false imprisonment? Is he or she imprisoned at all?
Merely to fail to facilitate the departure of a person from one's premises
does not amount to false imprisonment. In Herd v. Weardale Steel, Coal and
Coke Coy., a miner went down into the defendant's coal mine on the
agreement that he would work for a fixed time and, at the expiration of that
time, he would conveyed to the surface by means of machinery supplied by
the employers. He stopped work earlier in breach of his contract and
demanded to be conveyed to the surface at once. The employers refused and
he remained in the mine till the agreed closing time. In an action for false
imprisonment, it was held that he had no cause of action because the miner
had no right to use the machinery whenever he wants. Therefore, for the
period he remained in the mine till the end of his regular shift, he had not, in
law, been imprisoned. So if A enters a train or a bus, the doors are locked
and it stops only at certain points, if it stops for some reason in between, A
cannot demand to be allowed go out there. If he demands and is refused, this
is no false imprisonment.

Again in Robinson v. Balmain New Ferry Coy Ltd.,' the defendants-

respondents carry on and operate the business of a harbour steam ferry
between Sydney and Balmain. They had a wharf on the Sydney side of the
ferry and you had to enter by a turnstile and go out by another if you want.
The appellant entered the wharf intending to cross to Balmain by one of the
steamers. Discovering that the next steamer would come in twenty minutes
time, he decided to leave but refused to pay the toll at the exit turnstile (one
penny). After some struggle, he succeeded in leaving. He brought an action
for false imprisonment; judgment was given against the company. It
appealed and succeeded. On further appeal by the appellant to the Privy
Council, it was held that the toll imposed was reasonable, so no liability in
false imprisonment. It was held further that failure to provide gratuitous exit
from the premises to the appellant did not constitute false imprisonment.
From this case we can conclude that a passenger on a tro tro; train, plane etc.
cannot demand to get off at an unscheduled point. However, this case must
not be treated as implying that you can detain people to enforce a contract.
In Sunbolf v. Alford the defendant innkeeper detained the plaintiff-customer
for not paying his bill. It was held to be false imprisonment.
False imprisonment can thus take place-anywhere — in the plaintiffs own
house, in the mine, on a bridge or highway. Wherever the place, the
requirements are that the plaintiff should be totally restrained in a place
whose boundaries are delimited by the defendant.
Imprisonment can result from words or acts or both. So consider the
following two situations: (a) A visits the boyfriend B at his apartment; then
informs B that their affair is over. B starts screaming and threatening to
create a scene, if A leaves the apartment. This goes on for ten minutes. False
imprisonment? (b) A points a loaded gun at B and says "Don't move" —
False imprisonment?

Must the plaintiff be aware of the restraint to succeed?

Two cases generally considered as stating two different positions on this
point may be discussed here. In the first case, Herring v. Boyle, the plaintiff,
suing by his next friend, was an infant of ten years. He was in the
defendant's school during holidays. When the school vacated, his mother
came to take him home for a few days but the defendant refused saying he
would not let him go until some money owed to the school had been paid.
He would not let the mother see the child cither. After persistent demand and
refusal, a writ of habeas corpus was taken out. The plaintiff was then
released and taken home by his mother. No proof was given that the plaintiff
knew of the earlier denial to his mother; neither was there any evidence of
actual restraint on him. He also appeared to have enjoyed it. It was held that
there was no false imprisonment of the plaintiff.
The second case was Meeting v. Graham-White Aviation Co., per
Warrington, L.J. and Lord Atkin, Lord Atkin took the view that
consciousness of the confinement was irrelevant to the question of false
imprisonment. For the sake of the full import of that case, the two opinions
are reproduced here in full.

Warrington L.J.
"This is an appeal by the defendants from a judgment delivered by Bray, J.
after trial before himself with a special jury in an action for false
imprisonment and malicious prosecution. The jury found, speaking, for the
moment, quite generally, in the plaintiffs favour, both on the issues of false
imprisonment and on the issues raised in the action for malicious
prosecution, and awarded the plaintiff 250/ damages in respect of false
imprisonment, 1250l for malicious prosecution, and an additional 200l,
defending the plaintiff against the charge of larceny which had been
preferred against him, and which was the subject of the alleged malicious
prosecution.
The defendant's appeal both in respect of the findings of the jury against
them on the issues of false imprisonment and on the findings of the jury and
judgment of the learned judge on the issues raised by the action for
malicious prosecution. And they originally appealed against the award of the
200/ in respect of the father's costs of defending the plaintiff. But that
particular objection has been withdrawn. Therefore, if we are in the
plaintiffs favour on the question of malicious prosecution, the damages will
stand as they were found by the jury — namely, 1250l, with the addition of
200l, for the costs.
I propose to state generally, without going into the details of the evidence,
the facts of this case, and then to take in detail the questions asked of the
jury and their answers, and see whether there was evidence on which the
jury could properly come to the conclusion that they did. It will then be
necessary to see, having found those facts, whether the learned judge in the
court below was right in finding, as he had to find, that there was an absence
of reasonable and probable cause.
The plaintiff is an infant, and at the date of the occurrence in question he
was between eighteen and nineteen years old. He was employed at the
Graham White aviation works, the aerodrome, at Hendon. His father was a
merchant, carrying on business in the City, and having a residence at
Finchley, not far from the Hendon aerodrome. The boy had had 100l
premium paid for him by his father to the defendant company; he had
obtained a pilot's certificate; and he had also, I gather, acquired a
considerable amount of experience as a mechanic in the company's works,
so much so that at the time of the occurrences in question he was designing
an aeroplane of his own. Whether it was a good or a bad design is of no
consequence. But he was engaged in designing an aeroplane of his own. For
that purpose he, of course, required a certain amount of materials and tools
of such a nature as were possessed by the defendant company. He applied to
one of the officials of the defendant company, a gentleman of the name of
Liddle, as to the possibility of obtaining certain materials and tools from
the defendant company, and he was told there was a difficulty about it, but
that he might ,apply to Martin, who was the chief storekeeper of the
defendant company and it wa possible that he might be able to obtain at any
rate some of the things he wanted
The plaintiffs home was with his father at Finchley. But inasmuch is h»
being a pilot and instructor in the aviation school at Hendon, sometimes
found h necessary to be up quite early in the morning, he occupied a
bedroom in a cottage called Rose Cottage, occupied by a man named Lamb,
the cottage being ,Wi outside the ground of the aerodrome. So matters were
with regard the plaintiff.

There had been for some considerable time extensive thefts of material and
other things from the defendant company, and those representing the
defendant company were much exercised about the same, and were clearly
very anxious to stop it. On the 26th Jan. 1918 certain verbal statements were
made by two pilots in the employ of the defendant company, a man named
Russell and a man named Somersfield, to one or more of the amateur police
who were employed at the works, and who may be conveniently referred to
as the works police. This was reported to the managing director, and he
desired to have their statements put in writing. They were put into writing.
They consist of the two statements dated the 28th January which have been
so frequently referred to in the course of the argument before us.
The effect of those two statements - I do not propose to read them at length -
seems to me to be that a certain keg of varnish had been traced to the
possession of the plaintiff, that it had been first placed in one of the hangars
on the aerodrome ground; that it had been removed by the plaintiff from that
hangar to another; and that it had afterwards been moved from the
aerodrome ground altogether to Rose Cottage, and the persons who made the
statements had heard that it had been or was about to be taken from Rose
Cottage to elsewhere
With that particular incident connected with the varnish there was associated
in those statements the name of the plaintiff, the name of Martin the
storekeeper, and Mr. Brackenridge, who was the head of the school as I
understand, or, at any rate, a very important person in the aviation school
and who it was said knew at all events all about the original removal of the
varnish to the hangar, although it was said that he had taken no notice of the
incident.
The other matter which the two statements suggested was a supposed
intimacy between Martin and the plaintiff. It was said that they were in
association; that die plaintiff had frequently taken Martin up for flights in hi
aeroplane, and the suggestion obviously was that Martin and die plaintiff
were much too friendly with each other.

Having received those written statements, which, by the way arc addressed
to Mr. Grahame-White, the managing director of the company' Mr.
Grahame-White, after consultation with the authorised police officer merely
with his own works' police, but the authorised officers of the Metropolian
Police — decided on applying to the magistrate for a search warrant.
Application was made to the magistrate on an information which was sworn
by Hutchins who was secretary of the company. That information, which is
dated the 30 Jan 19 is was in these terms: "During the past three months,
November, December, and January, a considerable quantity of aeroplane
material comprising sheet steel brass bolts and sockets, wood and fabric,
also varnish and petrol have been stolen from the Grahame-White Aviation
Company's works. From information I have received in statement form and
supplied to me by the police'' — by the police there he means his own
works' police "I have every reason to believe, and do believe, that
considerable quantities of the said stolen property have been taken to the
address of one of the firm's assistant store-keepers, Charles Lamb, Rose
Cottage, Collindeeplane, Hendon. I respectfully ask that a search warrant be
issued for the purpose of searching the said house."
At that time, so far as the facts of this case are concerned, the only thing that
there was reason to believe had been taken to Rose Cottage was the keg of
varnish. That was the thing as to which the defendant company had the
written information. However, the magistrate granted the search warrant,
and, in addition to it merely being a search warrant, it authorised also the
arrest of Lamb. The search warrant was placed in the hands of two detective
officers of the Metropolitan Police, Askew and Burgess, and on the 5th Feb.
it was executed by them in the presence of officers of the defendant
company.
The result of that search was that there was found in the bedroom occupied
by the plaintiff a bundle of things called turnbuckles, about a dozen of them,
and there was also found in the same bedroom a bundle of what are
sometimes called wire strainers and sometimes short ends. Both of them are
connected with the construction of aeroplanes. There was found in the
drawer of the kitchen, with which, so far as I know, the plaintiff was not at
all connected, two small coils of wire. In a chest in the stable, as to which it
was not shown that the plaintiff had any connection whatsoever; they found
some more wire, and, what is most important of all, they found an inner tube
with the defendant company's name upon it, that tube belonging to the
under-carriage of an aeroplane. They found also in this chest in the stable a
varnish brush and a piece of sheet brass, a small piece only, apparently part
of what had been a larger piece, which was stamped with the defendant
company's identification mark, and which, no doubt, had been the property
of the defendant company.
Besides these articles the police found on the premises — and I understand
in that pail of the premises with which the plaintiff had to do — a number of
tools and material connected with the manufacture of aeroplanes, but which
things the defendant company or the officers of the defendant company
could not identify as theirs. They also found in the bedroom occupied by
plaintiff — and this is a matter of great importance — drawings and
sketches of the aeroplane which he was manufacturing.
The police having made their search arrested Lamb. They then inquired at
what time it was likely that the plaintiff would be back again at the cottage.
He was not at the cottage at the time, nor, so far as we can see, was he upon
the aerodrome ground at the time. This was about six o'clock. They
ascertained the address of his father. They were told that the plaintiff himself
would most likely be back at the aerodrome at about nine o'clock. They did
not make any appointment with him, but it was known — and this is of some
importance — to the works' police that the two detectives, Askew and
Burgess, wished to question the plaintiff, and that they expected that he
would be there about nine o'clock.
Hutch ins and Hickie — whose name I have not mentioned before, and who
was the superintendent of the works' police — with the two detectives then
went off to the house of the plaintiff's father. What took place there I will
leave for the moment, because I wish to deal with what happened to the
plaintiff.
Prudence, who was a sergeant of the works' police, had been told it was
desired to interrogate the plaintiff at the defendant company's offices, and
that he was, when he came back, to inform of the fact, and see if he could,
that he should be at the defendant company's office for that purpose.
Prudence interpreted and carried out his instructions in this way. He told two
of the company's police, a man named Dorry and a man named Liddington,
to convey this information to the plaintiff. Dorry and Liddington saw the
plaintiff come out of the works and go across the field towards this cottage.
They say they saw him signal with an electric torch and receive an answer
from the cottage. They then started off, one way and one the other.
Liddington went straight across the field towards that part of the hedge
against which was the curtilage of the hedge against which was the curtlings
of the cottage. The other man went off to the left and down a lane by a
footpath which led in the same direction. But the point is that two men
commissioned by a third to convey a message to the plaintiff thought it
necessary to do so in this extremely elaborate way.
Dorry got to the cottage asked for the plaintiff. He saw him and told him that
his presence was desired up at the works, and the plaintiff said: "All right, I
will get my mackintosh and I will come along." So they started, and the
plaintiff suggested that they had better go a short cut through a place in the
fence separating the aerodrome from the cottage, and there was found the
other constable, Liddington. They all three went up to the defendant
company's offices together. The plaintiff was taken or invited to go to the
waiting room of the offices there to wait until he was wanted. Prudence,
Dorry, and Liddington were due to go off duty at eight o'clock in the
evening. It was then past eight, and, therefore, they were at liberty to go off
duty. But they were told that it was desired that they should remain on duty
until the Metropolitan detectives had come back. They accordingly remained
on duty, and they remained in the immediate neighbourhood of the waiting
room in which the plaintiff was.
Meanwhile Prudence had communicated by telephone with the detectives
and with Hickie and Hutchins who were in their company that they had the
plaintiff at the works. The detectives and Hickie therefore returned to the
defendant company's works, and one of them, in giving his evidence before
the police magistrate, said that he there found the plaintiff detained. The
plaintiff had, however, when he was first taken to the waiting room, asked
what he was there for, what they wanted him for, and said that if they did not
tell him he should go away. They then told him that what they wanted him
for was to make inquiries because there had been things stolen and he was
wanted to give evidence. On that statement he stayed. Askew and Burgess
with Hickie then arrived at the defendant company's offices after the
interview that they had had with the plaintiffs father, and, therefore, for the
moment I will leave what took place subsequently, and consider what was
the effect of what had already taken place with reference to the plaintiff and
the question of his imprisonment.
The learned judge in the court below asked the jury this question in
reference to it: "Had the plaintiff been detained in the waiting-room
before the detective and Hickie arrived?" Answer: "Yes." On behalf of
the defendant company it was contended before us that there was no
evidence that the plaintiff had been detained in the waiting-room before
the detectives and Hickie arrived. They say that he was perfectly free to
go where he liked, and that he knew he was free to go where he liked,
that he could have gone away if he pleased: he did not desire to go
away, and, accordingly, that he was never under any compulsion or
under anything which could amount to an imprisonment. In my opinion
there was evidence on which the jury might properly come to the
conclusion that from the moment that the plaintiff had come under the
influence of these two men, Dorry and Liddinglon, he was no longer a
free man.
It was said by one of them, I think it was by Dorry, at the trial, that he
was very anxious that the plaintiff should come from the cottage to the
works at the earliest moment, as he did not want him to be at the
cottage and find out what had taken place in the execution of the search
warrant. I should be inclined to draw an inference in favour of the view
which the jury have expressed from the fact that when so simple a
matter as sending a message down to the plaintiff that he was wanted
up there was concerned, that they should have taken the trouble to
employ three people, a police sergeant and two constables, to convey
that message to the plaintiff. Then, again, that the message should be
conveyed by the two constables in the way in which it was conveyed;
that one should go round one way and one should go another; that one
should approach the cottage by the lane and footpath, and that the oilier
should approach it by the aviation grounds. I cannot resist the
conclusion that they meant to intercept the plaintiff.
Then they accompanied him together across the ground and when he
was in the place the sergeant communicated with the detectives, and
told them that they had got him there. Having got him there, and
having got him there with a view to satisfying the desire of the
detectives expressed before they left for Finchley, that they should
have him there to interrogate, can anybody believe that they were not
keeping him there until the arrival of these detectives?
In addition to that is the fact that the other two constables Dorry and
Liddington, and Sergeant Prudence as well, though really entitled to go
off duty, were kept there until the arrival of the detectives. Why were
they kept there? What had they to do? What had they to do if it was not
intended in some way to restrict the movements of the plaintiff— I do
not mean to say at some future time to arrest him, but it was intended
then to keep control over his will and over his movements.
To my mind there was ample evidence justifying the conclusion to
which the jury had come, agreeing in that respect with Askew's own
opinion, that the plaintiff had been detained by the officers of the
company. If that had been so, then it is admitted that that act was a
wrongful imprisonment, because it was an imprisonment by a private
person, and a private person has not the privilege which a constable has
of imprisoning a man on mere suspicion that a felony has been
committed. I think therefore that that was a correct finding of the jury,
and that what they found was a false imprisonment.
Then they were asked a further question: "Were the detectives when
they formally arrested the plaintiff in the waiting-room acting as agents
and with the authority expressed or implied of the defendants?" They
did arrest the plaintiff under circumstances which I will mention
directly when I come to that part of the case, because they bear more
on the question of malicious prosecution than upon the question of
wrongful imprisonment. One of the detectives, Burgess, did in fact
arrest the plaintiff. Were they acting as agents, and with the authority,
express or implied, of the defendants? The jury answered that in the
affirmative that they were. Now there, I think, the jury had no evidence
on which they could properly come to that conclusion. The evidence
satisfies me, first, that Mr. Grahame-White, the managing director, left
the question to Mr. Hutchins, the question as to what should be done
with reference to the prosecution, and may be said almost to have
washed his hands of it as soon as he directed the application for the
search warrant, and that Hutchins and Hickie the works' superintendent
of police, and the other two officers of the company, were quite alive to
the fact that, so far as the arrest was concerned at all events, they
almost throw the responsibility upon the constables of the Metropolitan
Police.
I think that that evidence satisfies me that the officers of the defendant
company did not give the plaintiff in charge, but that in that matter the
Metropolitan Police acted on their own responsibility, and by virtue of
the powers which were conferred upon them as police constables. That
being so, the arrest of the plaintiff by them was not wrongful, because I
think that they had at the time they arrested him sufficient reasonable
ground for suspecting that a felony had been committed, and that the
plaintiff had been involved in the commission of that felony. I think,
therefore, that die arrest by the Metropolitan Police was not wrongful,
was made on their own responsibility, and not as agents of the
defendant company.
That being so, but for which Mr. Gregory has said on the plaintiffs
behalf a very difficult question would be involved, because the jury
have made no distinction between the damages incurred by the false
imprisonment which only lasted something under an hour, and the
subsequent formal arrest and its consequences. But Mr. Gregory, on the
plaintiffs behalf, has agreed that, there being no wrongful
imprisonment by the arrest on the part of the police constables, the only
wrongful imprisonment being that by the officers of the company for a
short time in the waiting-room, we may reduce the damages awarded
by the jury to a nominal sum. That accordingly I think ought to be
done. That will dispose of the question of wrongful imprisonment.

ATKIN L.J.
I think that we are obliged to take it that the issue as to false
imprisonment raised on the pleadings was extended by the assent of
both parties to an allegation that the plaintiff had in fact been falsely
imprisoned at the works of the defendants before he was formally
arrested by the detective sergeant. In respect of that it is said that that,
after all, cannot be true because the plaintiff himself never supposed
that he was imprisoned at the time. He used language which indicated
that he was intending to go away if the persons who were proposing to
see him and to take his evidence did not come soon. Therefore it is said
that inasmuch as the plaintiff did not know that he was being
imprisoned it is not possible that there could be evidence that he was
imprisoned. I think that the case is important when that contention is to
be dealt with, because it seems to me upon a review of the possibilities
of what is meant by imprisonment, that it is perfectly possible for a
person to be imprisoned in law without his knowing the fact and
appreciating that he is imprisoned.
It appears to me that a person could be imprisoned without his knowing
it. I think a person can be imprisoned while he is asleep, while he is in
a state of drunkenness, while he is unconscious, and while he is a
lunatic. Those are cases where it seems to me that the person might
properly complain if he were imprisoned, though the imprisonment
began and ceased while he was in that state. Of course, the damages
might be diminished and would be affected by the question whether he
was conscious of it or not.
So a man might in fact, to my mind, be imprisoned by having the key
of a door turned against him so that he is imprisoned in a room in fact
although he does not know that the key has been turned. It may be that
he is being detained in that room by persons who are anxious to make
him believe that he is not in fact being imprisoned, and at the same
time, his captors outside that room may be boasting to persons that he
is imprisoned, and it seems to me that if we were to take the case as an
instance supposing it could be proved that Prudence had said while the
plaintiff was waiting: "I have got him detained there waiting for the
detective to come in and take him to prison" — it appears to me that
would be evidence of imprisonment. It is quite unnecessary to go on to
show that in fact the man knew that he was imprisoned.
If a man can be imprisoned by having the key turned upon him without
his knowledge, so he can be imprisoned if, instead of a lock and key or
bolts and bars, he is prevented from, in fact, exercising his liberty by
guards and warders or policemen. They serve the same purpose.
Therefore it appears to me to be a question of fact. It is true that in all
cases of imprisonment so far as the law of civil liability is concerned
that "stone walls do not a prison make," in the sense that they are not
the only form of imprisonment, but any restraint within defined bounds
which is a restraint in fact may be an imprisonment."
Article 14(5) of the Constitution, 1992 provides:
"Any person who is unlawfully arrested, restricted or detained by any
other person shall be entitled to compensation therefore from that other
person."
Does this statement imply a constitutional choice between the two
contending schools of thought? Cf. Date-Bah " and Veitch. " On
balance, we are entitled to agree with Veitch that the provision is
capable of supporting cither school. The framers must be taken to have
known the existence of the controversy but chose not to take sides. In
the end, a better reconciliation would be to treat the issue of
consciousness as an award issue. If the plaintiff is aware, then he is
entitled to higher compensation. If not, nominal damages may be
justified.
Problems relating to the requirement of directness
An arrest often involves or results in restraint on a person. An unlawful
arrest therefore constitutes false imprisonment e.g. I go to a police
station on my own free will or at the invitation of an officer, then get
arrested unlawfully — this is false imprisonment]. Where A instigates
the police to arrest B, if the arrest becomes unlawful, A is liable for
false imprisonment because it is the direct act of A, which caused the
arrest in those circumstances. If, however, A informs the police about a
state of affairs, they institute their own investigations and arrest B, then
there is no false imprisonment, even if the arrest so effected is unlawful
because the arrest docs not result from the direct act of A. It is not often
easy to make the distinction between informing and directing.
For the proper test here, see Thomas Bingham M.R. in Davidson v.
Chief Constable:'
"Whether what [the informer] did went beyond laying information
before police officers for them to lake such action as they saw fit and
amounted to some direction, or procuring, or direct request, or direct
encouragement that they should act by way of arresting...."

In Onogen v. Leventis,the plaintiff was a store-keeper of the defendant

company, in charge of the company's drinkables and provisions store at
Market Circle in Takoradi. It appeared that the company lost 70 cases
of Heineken beer and the general agent of the company informed the
police. The plaintiff was arrested and detained for 26 hours before
being granted bail. Subsequently, he was prosecuted and was acquitted.
He then brought an action for false imprisonment, wrongful dismissal
and malicious prosecution. Adumua-Bossman J (as he then was)
quoted Salmond on Torts, (10th ed.), at p. 374 with approval as
follows:
"An action for false imprisonment will lie against any person who
authorises or directs the unlawful arrest or detention of the plaintiff by
a merely ministerial officer of the law. ...
He makes that ministerial officer his agent and is responsible for any
arrest or detention so procured or authorised, as if it were his act. It is
necessary, however, even in such a case to prove actual direction or
authorisation, such as is sufficient to make the ministerial officer the
agent of the defendant. Mere information given to such an officer, on
which he acts at his own discretion, is no ground of liability. So no
false imprisonment."

But in Austin v. Dowling, the plaintiff was a lodger in the defendant's

premises. It appeared lie owed some money, was sued and paid. But he
still owed a small sum. One day, when he returned to his lodgings, he
discovered that the drawers in his bedroom had been emptied and his
private cupboards and their contents removed. He went to report at
Clifton Police Station and was accompanied back at his request by a
police officer. At the house the plaintiff demanded from the defendant's
wife his property and was refused. The plaintiff went upstairs, broke
the door of a bed-room in the defendant's house occupied by another
lodger with his shoulders and a screw-driver.
When he returned downstairs, the defendant's wife handed the plaintiff
over to the police for the felony of breaking open the door. He was
taken into custody and walked lo the police station. After hearing the
circumstances of the case, the inspector in charge declined to detain the
plaintiff unless the defendant signed the charge sheet. The defendant
signed the charge sheet. The plaintiff was charged with "feloniously
breaking and entering into a bed-room" in the defendant's house. The
plaintiff was detained for 171/2 hours before being brought before
magistrates where he was discharged. He brought action for false
imprisonment and malicious prosecution and was non-suiled. He
appealed. Willes J, Keating J, and Montague Smith J said there was
evidence of false imprisonment because, signing the charge sheet after
police say: no detention unless so signed, amounts to authorising the
police to imprison the plaintiff— it was the doing of an act which
caused the plaintiff to be kept in custody.
This case must be distinguished from a situation where A offers the
police mere assistance to do their work. Thus in Nkrumah v. Foli. It
was held that accompany the police to point out the plaintiff to them is
not instigation. Again in Amadjei v. Opoku Ware, ' two policemen on
patrol duty were told by the respondents that A,B,C,D and E were
holding an unlawful meeting and should be arrested. When the police
were interviewing the appellant, the respondents came and ordered
their arrest, whereupon one policeman said "You are arrested." The
plaintiff brought the action for false imprisonment. The high Court
dismissed the action. Upon appeal, it was held that the facts disclosed
authorisation by the respondents of the appellants' arrest and unlawful
detention. So it amounts to false imprisonment and the appeal was
allowed.
So where a complainant gives information to a police officer, and the
officer acts according to his own judgment and makes an arrest, the
complainant incurs no liability for false imprisonment. But where the
complainant does not merely give information but directs the officer lo
effect the arrest, the officer in that case is considered as the servant of
the complainant and the complainant will be liable for false
imprisonment — Narwu v. Armah.
The situation will not be different where the information given by A to
the police is to his knowledge false. Musa v. Limo-Wulana20 shows
where the information given by A to the police is to his knowledge
false, an action in false imprisonment will lie:
(a) Is the law looking for intention to imprison or intention to do the act
leading to imprisonment? In Warner v. Riddiford, it was held that the
relevant consideration was intention to do the act which causes or
results in the imprisonment,
(b) Can the false imprisonment be committed negligently? Sayer's case
suggests only intentionally.
Chapter 8

MALICIOUS PROSECUTION

The tort seeks to protect two conflicting interests:

a) On one hand, social policy demands that criminals are prosecuted, and
again that individuals be free to help in this exercise.
b) On the other hand, it is equally important that the individual's freedom
from unnecessary arrest and prosecution should be protected.
NB: In false imprisonment, the assumption is that the defendant departed
from due process. In malicious prosecution, it is assumed the process is
regular but has been perverted.
NB: For purposes of limitation, time does not start to run in an action for
malicious prosecution until the plaintiff s acquittal

According to the decision in Musa v. Limo-Wulana (discussed below), to

succeed the plaintiff must prove five elements namely:
(a) that the defend initiated a prosecution against him
(b) that the criminal proceedings terminated in the plaintiff's favour
c) that the defendant undertook or instigated or procured the prosecution;
with no reasonable or probable cause;
d) that the defendant acted maliciously; and
e) that the plaint If suffered damage as a result of the prosecution.
We shall take these elements seriatim.
(1) Proof of prosecution by the defendant
The plaintiff must prove that he has been prosecuted by the defendant. This
means proof either that: (a) the defendant himself conducted the prosecution;
or (b) procured, instigated, directed, ordered or was actively instrumental in
the prosecution being set in motion. This requirement may be illustrated by
the decision in Soadwah v. Obeng. The appellant had, in a letter to the
police, complained that the respondents had broken into his room and stolen
his properties while he was away from home. He, in writing the letter,
supported by affidavit, had relied on information given him by his son and^
uncle. He called for immediate investigation and police action. The police
conducted their investigation. The investigation officer advised against
prosecution, but his superior, the Assistant Commissioner of Police of
Sunyani, thought otherwise and ordered a prosecution. The prosecution of
the respondents on stealing from the appellants' home ended in their
acquittal and discharge. Thereupon, the respondents brought an action in the
High Court Sunyani against the appellant for malicious prosecution. The
trial judge, concluding that the appellant "was instrumental in putting the
law in force and instigated the prosecution," found for the respondents. The
appellants appealed. It was held, allowing the appeal, that the respondent had
failed to prove as the evidence clearly showed, that it was the appellants and
not the police who initiated the prosecution.
The requirement is therefore that the plaintiff must establish that the
defendant actively instigated the prosecution or was instrumental in getting
the proceedings going. If the defendant merely reported the matter to the
police who do their own investigations before charging the plaintiff, the
defendant is not liable as in Soadwah v. Obeng. The point is further brought
out by the case of Danby v. Beardsley. The plaintiff had been in the service
of the defendant (doctor) as groom and gardener and left. While gardener, he
lent to his successor two pairs of horse-clipping machines to clip the horses.
When he resigned, he took them away. The defendant who had seen the
machines in his stables thought they were his. When he did not see them
again, he asked his groom about them and was told the plaintiff had taken
them away, and that they belonged to the plaintiff. Nevertheless, the
defendant sent for the police. He told them he had lost two pairs of clippers
and that they had last been seen with the plaintiff. The police made further
inquiry and also searched the plaintiff and found two pairs of clippers similar
to the ones supposedly lost. Without further communication the defendant,
police arrested the plaintiff and charged him with the offence. In an action,
for false imprisonment and malicious prosecution by the plaintiff, it was held
that malicious prosecution must fail because there was no evidence that the
defendant had been instrumental in putting the criminal law into force and
therefore was not the prosecutor. We may also recall that in Onogen v.
Leventis,3 the employers were held not to have actively instigated the arrest
and therefore were not liable for malicious prosecution.

If you knowingly make a false complaint which results in A being

prosecuted, the first requirement is satisfied. In Musa v. Limo-Wulana,the
appellant made a complaint against the defendants that they had been
unlawfully fishing in the village dam, the only source of drinking water for
the village. They were acquitted and discharged and brought action. No
evidence was led by the appellant on whether they suffered damage. The
Court of Appeal restated the five requirements which a plaintiff for
malicious prosecution must prove to succeed. On damage, the Court of
Appeal quoted Saville v. Roberts with
approval. But to go with the police to point a person out is not to prosecute
him: see Nkrumah v. Foli. But where the informant lies to obtain the
prosecution there is malicious prosecution. In Martin v. Watson, the House
of Lords held that an informant who falsely and maliciously gives
information to the police can be said to have initiated prosecution for
purposes of malicious prosecution. See also Walters v. Pacific Delivery
Services Ltd.
The prosecution which is the basis of a malicious prosecution action must be
a criminal prosecution. But note the exception where bankruptcy and
winding up proceedings which are civil actions were held sufficient to
support an action in malicious prosecution. The case is Quartz Hill Mining
Co. v. Eyre. In this case, the defendant, a shareholder of the plaintiff's
company, instructed brokers to sell his shares, and signed a transfer. Later,
the brokers told him they were finding it difficult to sell the shares but they
did not transfer them back to the defendant. After waiting for ten or eleven
days, he brought a petition for the winding up of the company on the
grounds that there was fraud in the formation of the company and also that it
could not carry on business for profit. At that time, the company had
property of a large amount and its debts were insignificant. The defendant
had also ceased to be a shareholder, his shares having been sold by the
brokers unknown to him. When he discovered his shares had been sold, he
gave notice to withdraw the petition which was ultimately dismissed without
costs. The company sued him for falsely and maliciously and without
reasonable and probable cause bringing the petition.
At the trial, no proof of damage to the company was given beyond the costs
of defending itself against the petition and upon this ground the company's
action was dismissed. On appeal, it was held that malicious prosecution
would lie because the petition was injurious to the credit of the company.
There was want of reasonable and probable cause since it was a going
concern contrary to the petitioner's claims; so the jury ought to have been
asked whether the petitioner was actuated by malice. Here an action which is
normally civil was allowed to support a suit in malicious prosecution
because apparently its effect on the company was similar to that of a
criminal prosecution
2.
Termination in the plaintiff's favour
This element means that the plaintiff must have been acquitted and
discharged of the offence. This is because the tort relies on termination, in
the plaintiff's favour, of the criminal proceedings. For this reason, it is
irrelevant whether the conviction is one against which there is no right of
appeal or one which has been obtained by the fraud of the prosecutor. The
last point is illustrated by the decision in Base-Be v. Mathews. Here the
plaintiff alleged that the defendant falsely and maliciously and without
reasonable and probable cause, initiated prosecution against the plaintiff
before a justice of peace, where he was charged with assaulting and beating
her and was convicted, fined and costs were awarded against him, there
being no appeal from the said conviction. It was held that the rule that, for a
plaintiff to succeed in an action in malicious prosecution, he must show that
the criminal prosecution terminated in his favour applies even to convictions
for which there was no appeal.
Termination in his favour also means that the plaintiff was not convicted of
the particular offence preferred against him. If convicted of a lesser offence,
proceedings have terminated in his favour, e.g. manslaughter for murder or
dishonestly receiving for stealing. The authority is Boaler v. Holder.11 In
that case, the plaintiff was indicted under section 4 of the Newspaper Libel
Act for publishing a libel knowing it to be false. He was committed for trial.
At the trial, the jury found him guilty of publishing die libel, but found that
he did. not know it was false. This, in fact, amounted to a verdict of not
guilty. But the plaintiff was sentenced to a term of imprisonment. On his
release, he brought an action for malicious prosecution against the
defendant. The judge withdrew the case from the jury, when it was shown
that the plaintiff had been convicted. On appeal, Day J decided that there
should be a new trial, because the plaintiff who had been charged with the
graver offence under section 4 had been convicted of the lesser offence
under section 5. This conviction was no bar to an action for malicious
prosecution under section 4. Wills J concurred. He pointed out that the
plaintiff had not been convicted of the offence for which he was put on his
trial. He noted that to put a man on his trial for a much graver offence than
you have any chance of convicting him is a legal wrong. In his view
therefore the plaintiff had made out that he had been put on his trial
wantonly and that there was an absence of reasonable and probable cause for
the actual charge brought against him.
But where a plaintiff is bound to be of good behaviour, that is fatal to
malicious prosecution. Where he or she is convicted in a court of first
instance but acquitted on appeal that is termination in his favour.
An entry of nolle prosequi by the Attorney-General, as he may be entitled to
do under article 88 of the Constitution, 1992, or an officer lawfully
authorised by him is termination in the plaintiffs favour, although nolle
prosequi carries with it liberty to prosecute on the same facts and charge
later. Before 1963, our law which followed the English law, was not clear on
the matter. For, in England, it was the law that entry of nolle prosequi was
not sufficient termination in the plaintiffs favour — Goddard v. Smith.12
But, it was held in an Australian case that it was: Gilchrist v. Gardener}3
Our law became saddled with these two conflicting positions.
The West African Court of Appeal preferred the Australian view in Malek
Khoury v. Tabbara. In this case, the plaintiff-appellant brought the action for
malicious prosecution against the respondent-defendant for maliciously and
without reasonable and probable cause preferring against him, a charge of
obtaining by false pretences a sum of money. He averred that the
proceedings were terminated when the Solicitor-General entered a nolle
prosequi. He asserted that this satisfied the requirement, for malicious
prosecution, of termination in the plaintiff's favour of the prosecution. The
learned trial judge felt himself bound by Goddard v. Smith, to dismiss the
action and the plaintiff appealed. It was held, relying on the alternative
Australian case of Gilchrist v. Gardener that the appeal should be allowed.
Foster-Sutton P (concurred in by Coussey J.A. and Kingsley J as they then
were) said he preferred the reasoning in the latter case to the earlier one, as
an exception to the general rule that, in a malicious prosecution action, the
plaintiff must prove termination of criminal proceedings in his favour.
The situation remained uncertain until 1963, when the Supreme Court settled
the issue in Nana Akuamoah Boateng v. Yeboah.15 In that case, the
appellants had been successfully sued in the High Court, Accra. They
appealed to the Supreme Court on two main grounds: (a) They had
reasonable and probable cause for the prosecution, and (b) they had acted
without malice. The facts were that the respondent was the Omanhene of
Kwahu. He lodged a complaint against the appellants that they had paid dues
to the Adontenhene of Abetifi without his consent. An arbitration presided
over by the Krontihene was held. The arbitration found the appellants
wrong, and they apologised to the Omanhene. They paid pacification fees in
accordance with custom and also provided some drinks (schnapps). Then the
appellants complained to the police that the respondent had extorted money
from them. The police refused to take any action, as they felt that the
complaint disclosed nothing criminal. The appellants instituted a private
prosecution in the district magistrate's court. That court found that a prima
facie case had been made out and committed the respondent to stand trial.
The Attorney-General subsequently entered a nolle prosequi. After that, the
respondent instituted this action against which appellants appealed. The
appeal was dismissed. The Court of Appeal was of the view that, having
regard to the circumstances, malicious prosecution had been made out. The
appellants knew that all that had happened was the application of customary
law, so the respondent had not extorted the money. Even though the
prosecution was after counsel's advice and was in fact conducted by counsel,
yet the fact that counsel was not told of the arbitration, the fact that they
were found guilty by the said arbitration and the moneys paid were for
pacification, rendered the involvement of counsel worthless. So, on the
evidence, it was reasonable to conclude that there was want of reasonable
and probable
cause from which, in the circumstances an inference of malice could be
made. On damage, the Court of Appeal held that the prosecution damaged
the fame and reputation of the respondent.

3. Absence of reasonable and probable cause

.
The plaintiff must prove that the defendant prosecuted him without
reasonable and probable cause. The plaintiff may establish this in one of two
ways. By showing that:
a) the prosecutor (whether the defendant himself or herself or a surrogate in
law) had no honest belief in the plaintiff's probable guilt when he prosecuted
him; or
b) the prosecutor had such belief but that the facts would not lead an
ordinarily prudent and cautious person to that conclusion, i.e. the plaintiff
was rash in his judgment.
Reasonable and probable cause was explained in Hicks v. Faulkner.16 The
defendant was the landlord of a house in the Belgrave Road, St. John's
Wood. The father of the plaintiff was tenant of that house. In February 1879,
the defendant brought an action in the county court against the plaintiff's
father for alleged arrears of rent. The father's defence was that he had given
up the premises before the alleged rent accrued. To support this claim, the
father called the plaintiff who swore that he had, at his father's request, given
the key to the defendant. After that action, the defendant indicted the
plaintiff at the Central Criminal Court for perjury. The plaintiff was
acquitted. He then brought a malicious prosecution action against the
defendant. Judgment was given in favour of the defendant. Subsequently the
plaintiff obtained a rule nisi for a new trial (i.e. the plaintiff appealed) on two
grounds, namely that: (a) the judge misdirected the jury; and (b) the verdict
was against the weight of evidence. Now the disputed direction was as
follows:

"The judge told the jury alternatively that if they could not arrive at a
conclusion as to which of the parties was speaking the truth, the plaintiff had
not made out his case and defendant was entitled to judgment; if they
thought that the plaintiff did give up the key but the defendant, owing to a
defective memory, had forgotten the occurrence and went on with the
prosecution honestly believing that the plaintiff had sworn falsely and
corruptly, then the jury would not be justified in saying that the defendant
maliciously and without reasonable and probable cause prosecuted plaintiff,
and defendant would be entitled to judgment."
The rule was discharged on the grounds that this direction was right (i.e. the
appeal failed).
Hawkins J in this case provides us with a definition of reasonable and
probable cause which has been approved and used by many courts in the
common law world ad infinitum:
"An honest belief in the guilt of the accused based upon full conviction,
founded upon reasonable grounds, of the existence of a state of
circumstances, which, assuming them to be true, would reasonably lead any
ordinarily prudent and cautious (i.e. one not RASH) man, placed in the
position of the accuser, to the conclusion that the person charged was
probably guilty of the crime imputed. There must be: first an honest belief of
the accuser in the guilt of the accused; Secondly, such belief must be based
on an honest conviction of the existence of the circumstances which led the
accuser to that conclusion; Thirdly, such secondly-mentioned belief must be
based upon reasonable grounds; by this I mean such grounds as would lead
any fairly cautious man in the defendant's situation so to believe; Fourthly,
the circumstances so believed and relied on by the accuser must be such as
amount to reasonable ground for the belief in the guilt of the accused. ..."

Turning to the facts of the case before the court, he posed the following
rhetorical question:

"If a man has never had reason to doubt, but on the contrary, has ever had
reason to trust the general accuracy of his memory, and that memory
presents to him a vivid apparent recollection that a particular offence took
place in his presence within a recent period of time, is it not reasonable to
believe in the existence of it?"

NB: This does not mean that the accuser is always justified in relying on his
memory or the trustworthy statement of an informant. At all times, the
question will be whether it was reasonable to do so. So it will be
unreasonable to rely on a memory known to be unreliable or an
untrustworthy informant.

From Hawkins J definition, it is clear that reasonable and probable cause

depends on or has two elements namely,
a) facts (objective aspect of the test); and
b) the genuineness of the defendant's belief based on them (the subjective
aspect).
In the case of (a), the relevant facts are those known to the defendant at the
time the prosecution was initiated i.e. he cannot avoid liability by pointing to
facts showing that the plaintiff was guilty, if these were not known to him
until later: see Delegal v. Highley
In the case of (b), the question is: Did the defendant honestly believe in the
plaintiffs guilt or not; nor did he honestly believe that there was reasonable
and probable cause. This is because the existence of reasonable and probable
cause is a question of law for the judge, as was held in Glinski v. Mclver.
The defendant's knowledge of facts negativing the plaintiff's guilt is relevant
to the honesty of his belief.
Another relevant consideration is taking legal advice: Abbott's Case; see
Boateng v. Yeboah.These last two cases decided that provided counsel is
fully briefed and apprised of the full facts, the interposition of legal advice
before the prosecution will absolve the defendant of liability. In other words,
the advice will meet the reasonable and probable test.
Conviction at first instance may not be conclusive evidence of reasonable
and probable cause where quashed on appeal — for the conviction may have
been procured by perjured evidence.
Hawkin's definition was adopted by the House of Lords in Herniinan v.
Smith and also by the Ghana Court of Appeal in Yeboah v. Boateng. In
Herniinan v. Smith, the plaintiff, together with one Richard, was charged
with conspiracy to defraud the defendant and with obtaining money from
him by false pretences on four different occasions. They were convicted at
first instance trial and sentenced each to twelve months' imprisonment. The
conviction and sentence were set aside by the Court of Criminal Appeal. The
court felt that there was not sufficient evidence in the case of the plaintiff to
go to the jury and that, in the circumstances, it would be safer to quash die
conviction of Richard as well. Thereafter, the plaintiff brought an action for
malicious prosecution against the defendant. The case was tried by Talbot J
and a common jury and judgment was entered for the defendant. The judge
had left the following three questions to the jury, which they answered in the
affirmative:
1) Has it been proved that the defendant commenced and proceeded with
the prosecution without any honest belief that the plaintiff was guilty of
fraud?
2) Has it been proved that the defendant failed or neglected to take
reasonable care to inform himself of the true facts before commencing or
proceeding with the prosecution?
(3) Has it been proved that the defendant, in commencing or proceeding
with the prosecution, was actuated by motives other than a desire to bring to
justice one whom he honestly believed to be guilty? The jury answered all
three questions in the affirmative.
The judge held that there was no reasonable and probable cause for the
prosecution and entered judgment for the plaintiff. The defendant appealed
and the Court of Appeal set aside the judgment of the court of first instance.
The Court of Appeal was of the view that the evidence did not justify the
learned judge leaving the first two questions to the jury. In their opinion,
there was no want of reasonable and probable cause.
The plaintiff appealed to the House of Lords. The House of Lords, per Lord
Atkin, approved Hawkins J's definition of reasonable and probable cause —
Hicks v. Faulkner23. But Lord Atkin disagreed with Hawkins J's statement
in the above case that the reasonableness of the accuser's belief in the
existence of the facts on which he acted was a question of fact for the jury.
Lord Atkin also felt that the additional question of whether the facts so
believed amount to reasonable cause for believing the accused to be guilty
was also one for the judge, i.e. it was a question of law. Given that view, he
agreed with the Court of Appeal that there was no want of reasonable and
probable cause for the prosecution. He continued thus:

"... It was further said that he should have asked for a further explanation
from Hemiman. No doubt circumstances may exist in which it is right before
charging a man with misconduct to ask him for an explanation. But certainly
there can be no general rule laid down, and where a man is satisfied, or has
apparently sufficient evidence, that in fact he has been cheated, there is no
obligation to call on the cheat and ask for an explanation which may only
have the effect of causing material evidence to disappear or be
manufactured. It is not required of any prosecutor that he must have tested
every possible relevant fact before he takes his action. His duty is not to
ascertain whether there is a defence, but whether there is reasonable and
probable cause for a prosecution. ..."

The requirement of reasonable and probable cause was further explained in

Glinski v. Mclver. In this case on 13 September 1955, defendant, a Criminal
Investigation Department detective sergeant, arrested the plaintiff, believing
him to be involved in a series of frauds on textile manufacturing houses and
going under a different name (Davies). The plaintiff was not picked out at an
identification parade as the man known as Davies and was subsequently
released. On September 21, 1955 a solicitor working with the legal
department of the New Scotland Yard delivered to counsel a brief for the
prosecution of certain persons and also advise on "Glinski aspect of the
matter." On 22 September, the plaintiff gave evidence for the defence at a
criminal trial. The police believed he had, at that trial, perjured himself. The
solicitor after consultation with counsel (the defendant was present), issued a
warrant for the arrest of the plaintiff and charged him with conspiracy to
defraud. The plaintiff alleged that the defendant told him he was being tried
for giving evidence at ihe oilier trial. He was tried on the conspiracy charge
and acquitted. He sued the defendant for damages for false imprisonment
and malicious prosecution. The judge put the following questions to the jury
on the malicious prosecution action:
a) Has it been proved that the police officer, in starting the prosecution of
the appellant for conspiracy to defraud was actuated by malice, that is, any
motive or motives oilier than a desire to bring the appellant to justice? Yes.
b) Did the police officer honestly believe on the relevant date (29
September) that the appellant was guilty of the offence of conspiracy to
defraud? No.
The judge decided there was no reasonable and probable cause for the
prosecution. The defendant appealed to the Court of Appeal which allowed
the appeal. The plaintiff then appealed to the House of Lords. It was held,
dismissing the appeal, that:
(1) The second question should not have been left to the jury because,
though it is the law that malice can, in appropriate cases, be inferred from an
absence of reasonable and probable cause for prosecution, it is also the law
that want of reasonable and probable cause should be established by itself
and should not be inferred from the existence of malice. Per Viscount
Simonds:
"A prosecutor who relies on competent legal advice cannot be said to lack
reasonable and probable cause for a prosecution just as a prosecutor is
justified in acting on information about facts given him by a reliable
witness."
Lord Denning thought that the word "guilty" in Hawkin J's definition could
be misleading. All that a prosecutor must satisfy himself on is whether there
is a proper case to lay before a court. He is concerned to bring every man
who should be put before court, but he is not concerned to convict him.
4. Malice:
The plaintiff must prove that the defendant was actuated by malice in
prosecuting him. Malice covers not only spite and ill-will but also any
motive other than a desire to bring a criminal to justice. According to Lord
Devlin in Glinski v. Mclyer, malice relates to the prosecutor's motive. This
means that the prosecution must have been with ill-will or spite. Prosecution
of the plaintiff on any motive other than bringing him to justice is malice.
Thus to succeed in an action for malicious prosecution, as Weir notes26 the
plaintiff must show that the defendant was both a knave and a fool. The
performance of a duty required by law cannot evidence malice — Abbots
case. See Lord Devlin in Glinski v. Mclver where the defendant prosecutes
with two motives, i.e. one genuine, one malicious; the court has to determine
which motive predominated in the making of the decision to prosecute in
order to decide whether an action in malicious prosecution will lie.
5. Damage
Being an action on the case, the plaintiff must prove damage as a result of
the prosecution to succeed. Chief Justice Holt laid down the heads of
damage recognised under this tort in the case of Saville v. Roberts.21 Here
the plaintiff alleged that the defendant maliciously and wickedly, intending
to oppress the plaintiff, caused him to be maliciously indicted of a riot. And
that he was acquitted. He alleged injury was caused to his name and he was
put to expenses in defending himself. Chief Justice Holt held that there are
three sorts of damages, any one of which is sufficient to support the action.
a) damage to his name, (i.e. necessarily and naturally affects the fair fame
of the person) if he is accused of scandalous matter;
b) damage to his person where he could lose his life, or liberty (if he is,
for example, imprisoned); and
c) damage to his property, if he is made to incur charges and expenses for
his defence.
See on head I - Akuamoah Boateng v. Yeboah; Gyimah v. Donkor cf.
Wiffen v. Bailey and Berry v. B. T. C29.
What amounts to damage on point (c) was explained in Wiffen v. Bailey.30
In that case the plaintiff, as occupier, was asked to clean certain rooms in his
house considered dirty. When he failed to do this, Bailey, acting on die
instructions of the defendant counsel, preferred a complaint before the
Romford Justices. At the hearing, the justices dismissed the complaint and
awarded the defendant costs. The plaintiff in the trial had, in defending
himself, incurred further costs. He brought the present action for malicious
prosecution against defendants. At the hearing, the jury found that the
defendants were actuated by malice in bringing the complaint and the judge
ruled that there was no reasonable and probable cause. The defendants
appealed. It was held that the difference between solicitor and client costs
and party and party costs was not legal damage for purposes of an action in
malicious prosecution. So the appeal was allowed (Coram: Buckley,
Phillimore, and Pickford, L.J.J.). The court felt that there was no damage
within the heads of damage listed by Chief Justice Holt in Savillle v.
Roberts, to support an action in malicious prosecution.
But in Berry v. B.T.C., the plaintiff pulled the communications cord, while
travelling on a train between Brighton and Lancing. He was charged with a
breach of section 12 of the Regulation of Railways Act, 1865, convicted and
fined. On appeal, her conviction was quashed and she was awarded fifteen
guineas costs. She brought an action for malicious prosecution claiming,
inter alia, that, by reason of the charge, she had been injured in her
reputation and had been held up in ridicule and suffered pain of mind, and
had been put to expense in defending herself. The defendants put up the
defence that the statement of claim disclosed no damage of which the
plaintiff was entitled to complain at law and thus disclosed no cause of
action. Diplock J. upheld the defendant's contention and dismissed the claim
with costs. The plaintiff appealed on the ground that the judge misdirected
himself both in substance and in law. It was held, allowing the appeal, that
the expenses incurred by the plaintiff in the course of her defence in the
court of summary trial and before the recorder, over and above the sum of 15
guineas awarded her, were sufficient to support an action for malicious
prosecution (£64 2s, £29 17s). Thus, a distinction was drawn between the
position in respect of criminal proceedings and civil proceedings.
Chapter 9

THE RULE IN WILKINSON v. DOWNTON

The rule created an action on the case for intentional infliction of physical
harm by indirect means. Briefly put, it states that any act done wilfully,
calculated to cause and actually,causing physical harm to another (per
Wright in Janvier v. Sweeney) is an actionable wrong,

Elements
These are:
a) a deliberate or wilful act or misrepresentation;
b) calculated to cause harm to the plaintiff; and
c) actually causing harm to the plaintiff.
The locus classicus is Wilkinson v. Downton. In that case, the defendant in
the execution of a practical joke, falsely told plaintiff that her husband had
asked him to tell her that he had been injured in an accident with both legs
broken and that she was to go at once in a cab to get him. She suffered a
nervous shock, vomiting and other physical consequences. She spent a large
sum on medical expenses as a result. The consequences were not in any way
the result of previous ill-health; for she was in ordinary state of health and
mind. It was held that an action would lie to recover the expenses on medical
treatment, per Wright J:
"The defendant has, as I assume for the moment, wilfully done an act
calculated to cause physical harm to the plaintiff i.e. to infringe her legal
right to personal safety, and has thereby in fact caused physical harm to her.
That proposition, without more, appears to me to state a good cause of
action, there being no justification alleged for the act. This willful injuria is
in law malicious, although no malicious purpose to cause harm which was
caused, nor any motive of spite, is imputed to the defendant....
One question is whether the defendant's act was so plainly calculated to
produce some effect of the kind which was produced, that an intention to
produce it ought to be imputed to the defendant regard being had to the fact
that (lie effect was produced on a person proved to be in an ordinary stale of
health and mind. I think that it was. It is difficult to imagine that such a
statement, made suddenly and with apparent seriousness, could fail to
produce grave effects under the circumstances upon any but an exceptionally
indifferent person, and therefore an intention to produce such an effect must
be imputed, and it is no answer in law to say that more harm was done than
anticipated, for that is commonly the case with most wrongs. ..."
He continued with the following example:

"... Suppose that a person is in a precarious and dangerous condition, and

another person falsely tells him that his physician has said that he has but a
day to live. In such a case if death ensued from the shock caused by the false
statement, I cannot doubt that the case might be one of criminal homicide; or
that, if a serious aggravation of illness ensued, damages might be
recovered."

On the facts there was no precedent before 1875. The plaintiff could not
have brought an action for trespass, which lay only for the direct physical
infliction of harm or threat of it. In this case, the plaintiff had been
physically injured. But only as a result of her mental shock following upon
her belief in the words spoken. She could not have sued for this mental
suffering in the tort of deceit because of the absence of fraud and reliance.
Here she was claiming for damages not for reliance but for her mere belief in
the truth of what the defendant said and the effect that belief had on her
mind.
The rule was applied in Janvier v. Sweeney. In that case, the plaintiff was a
maidservant; the defendants were detectives. They wanted to read certain
letters of the plaintiff's mistress. They represented to her that she was
suspected of collaborating with the Germans and, if she did not bring out the
letters they would report her boy-friend to the authorities as a traitor and
have her deported. The plaintiff fell ill, and had nervous shock. The court
held that the act of the defendant was wilful and aimed at causing harm
under the rule in Wilkinson v. Downton.
Two other cases may be considered. The first is Burnett v. George:4 The
plaintiff was subjected to harassment by unwelcome phone calls. The rule in
Wilkinson v. Downton was thought to be applicable but the plaintiff failed
because she could not prove any damage, i.e. impairment to her health.
The second is Khorasandjian v. Bush: This was a case of harassment by
phone calls. The plaintiff succeeded on the Wilkinson v Downton principles
because of the risk that the cumulative effect of continued and unrestrained
phone calls would cause physical or psychiatric illness.
In the recent case of D v. National Society for the Prevention of Cruelty to
Children6 in which Lord Denning was unwilling to extend the principle, the
defendants had information that die plaintiff was maltreating her child. They
sent an officer to investigate. The information was false and the plaintiff was
severely shocked by the experience. The issue was whether the defendants
were bound to disclose the identity of their informant; but disclosure here
depended on whether there was a claim against the defendants on the facts in
the first instance. In the end, it was decided that disclosure must be refused
on public interest grounds and therefore there was no claim against the
defendants.
Chapter 10

INTENTIONAL INTERFERENCE WITH PROPERTY

TRESPASS TO LAND (Or Trespass quare ckmsiim fregit — Direct interference

with land in possession of another).
1. This is the name of that species of wrongs redressible at common law by the
old
writ of trespass which deals with unjustifiable interference with land in the
possession o[
another. In Blackstonc's Commentaries,' we find the following description of the tort:

"Every unwarrantable entry on another's soil, the law entitles a trespass by breaking
the close; the words of the writ of trespass commanding the defendant to show cause
quare clausum querentis fregit. For every man's land is in the eye of the law, enclosed
and jet apart from his neighbour's; and that, either by a visible and material fence, as
one field is divided from another by a hedge; or, by an ideal invisible boundary,
existing only in the contemplation of the law, as when one man's land adjoins to
another's in the same field."
2. The torts protects the interest of the plaintiff in having his land free from physical
intrusion. It does not protect ownership as such, but possession; however, since often
the owner is in possession, the purpose of many suits in trespass is not only recovery
of damages, but to settle disputed rights over land. Thus the toil serves three distinct
purpose: (a) it provides _damages in the law; (b) it settles title to land; and (c) it
provides protection against abuse of powers by officialdom. Possession here means
power to use the land and to exclude others, i.e. occupation or physical control of the
land and power to exclude others.
3. The tort may thus be comprehensively defined as "intentionally or negligently
entering or remaining on or directly causing any physical matter to come into contact
with land in the possession of another." That is to say, it is a trespass to enter or
remain on the land of another intentionally or negligently or to cause anything which
has mass to come into direct contact .with land in the possession of another, e.g.
throwing stones on to the land.
What arc the elements of this Tort? What constitutes the trespass?

4. What are the elements of this tort? What constitutes the trespass?

DIRECT ACT
As a trespass, the act complained of must be direct, e.g. crossing the land, felling
trees, shooting over the land, shooting into the land: sec Pickering v. Rudd, per Lord
Ellenborough. In that case the house of Rudd adjoined to the garden of Pickering A
Virginian Creeper which grew in the garden of Pickering spread itself over the side
of Rudd's house. Rudd a barber, decided to hang a sign board on that side of the
house covered by die Virginian Creeper. He managed by means of ropes and a
scaffolding suspended over the garden, without touching the surface: of Pickering's
premises, to cut away such a portion of the creeper as was sufficient to admit his sign
board and fixed the board to his own house, projecting sonic three to four inches
from the surface wall. Pickering sued Rudd for trespass, alleging both the cutting of
the creeper and the projection of the board into his air space. Rudd justified the
cutting by the fact of its projection into his premises. Pickering argued that more
harm had been done by Rudd than was necessary. Verdict for Rudd Mere Lord
Ellenborough expressed the view that it is a trespass to lire a gun into someone's
land. Lord Ellenborough also said it would not be a trespass to pass over a man's land
in a balloon.
POSITIVE ACT
The tort depends on an affirmative/positive act. An omission to act leading to
interference with another's land, does not constitute a trespass, although it may
provide the foundation for an action in nuisance. As noted already, there must be an
affirmative act by the defendant, e.g. (i) A fells a tree which falls into B's land —
trespass; (ii) A discovers a tree on his land eaten by termites and ready to fall but
does nothing about it. On a windy day, the wind blows down the tree and it falls into
B's land — no trespass. This is because this was not the result of a positive act;
neither does it flow from a direct or immediate act.

PHYSICAL INTERFERENCE
There must be physical interference with the land. As an example, we may look at
the case of Lavender v. Belts.4 The defendant let to the plaintiff a flat consisting of
the first and second floors of a dwelling-house on a weekly tenancy basis. The
plaintiff was making irregular payment of the rent. The rent fell into arrears. After
about two years, he served a notice to quit on the plaintiff who ignored the notice and
continued in possession. In February 1941, the defendant gave another quit notice
and from April refused to receive any rent in order to avoid any waiver of the quit
notice. In November 1941, the defendant, without making an application as he was
required by statute, i.e. the Increase of Rent and Mortgage Interest Restrictions Acts,
1920-1933 to a court for possession, because the plaintiff had become a statutory
tenant, obtained admission to the flat on the pretext of going to have a private
discussion with the plaintiffs wife. He gave instructions to men he had brought with
him to remove all the doors and windows, with the result that the plaintiff could live
in it only at considerable discomfort and danger to his health. The defendant had
asked police to be present while the windows and doors were being removed. The
plaintiff sued for trespass and breach of the covenant for quiet enjoyment. It was held
he must succeed and punitive damages would be awarded, per Lord Atkinson.
We may contrast this with the decision in the case of Perera v. Vandiyar. In
this case also, the plaintiff was a statutory tenant. To evict him, the landlord
cut off the supply of gas and electricity to the Hat from his end of the
premises and the tenant was forced to leave. After a week, the supply was
reconnected. The tenant then sued the landlord for breach of the implied
covenant for quiet enjoyment, and an injunction restraining the landlord
from further breaches of that covenant. He also added a claim for damages
for eviction. Judgment was given to the plaintiff and the landlord appealed
on the question of damages. Held, allowing the appeal, that there was no tort
of eviction. That any evidence of eviction on the facts amounted only to a
breach of contract. There was no interference with any part of the premises
and therefore no action in trespass, per Sir Raymond Evershed M.R.,
Birklett L.J., Romer C.J.

LACK OF CONSENT
Where a person enters someone's land with the leave and licence of the
landlord, then the licensee becomes a trespasser, if he refuses to leave after
the licence has been revoked, i.e. he overstays, provided he has been given
reasonable lime to leave the premises. What is reasonable lime will depend
on the situation. We may illustrate this point with two cases: Hurst v.
Picture Theatres Ltd. The plaintiff had paid six pence to watch a film at the
defendant's cinema theatre. After the performance had begun, the plaintiff
who was suspected by management to have entered without paying was
asked to leave but he refused insisting that he had a ticket. Eventually, he
was forced out. He brought this action for assault and false imprisonment.
The defendants justified their conduct, inter alia, on the grounds that they
were entitled, without assigning any reason, to ask the plaintiff to leave the
theatre and if he refused, to remove him forcibly. Judgment was given to the
plaintiff and the defendants appealed. The appeal was dismissed. The
appellate court noted that:
"the purchaser of a ticket for a seat at a theatre or other similar
entertainment has a right to stay and witness the whole performance
provided he behaves properly and complied with the rules of management.
The licence granted him by the sale of a ticket includes a contract not to
revoke the licence arbitrarily during the performance."

So battery and false imprisonment were committed on him.

The second case was Cowell v. Rosehill Race Course Co. Ltd.8 Here the
plaintiff-appellant sued the defendant-respondent for damages for assault.
The defendant replied by saying that the plaintiff was trespassing on his
land and what he alleged to be assault was the reasonable force he had used
to remove him from the land. The plaintiff had paid four shillings to watch a
race meeting being held by the defendants. In the course of the meeting, the
defendants asked the plaintiff to leave and, upon his refusal, forcibly
removed him from the course. The plaintiff alleged further that he had
acquired a right to be there which could not be prematurely revoked, and
that the purported revocation was
ineffectual. It was held (Evatt J. dissenting), that no action for assault would
lie, reasonable force having been used for the removal. This is because the
plaintiff merely had a contractual right which was revocable mid not a
proprietary interest in the land. If the right was unjustifiably interfered with,
his proper course would be an action for breach of contract. The court
declined to follow the English decision of Hurst. Since then the conclusion
in Cowell has been preferred to that of Hurst. So if you are on somebody's
land with his permission, then you commit no trespass. You become a
trespasser only if he revokes your licence and you still remain there after:
see also Robson v. Hallett.
The defendant need not enter the land physically but by forcing objects to
get onto the land of A, or by causing some foreign matter (anything with
size or mass such as gas, flame or beams from torchlight) to enter or come
into physical contact with another's land, he commits a trespass. — Recall
Pickering v. Rudd .

THE ACT MUST BE VOLUNTARY

The act complained of as the trespass must be the voluntary act of the
defendant Here it is immaterial whether A was aware he was trespassing.
But, if through the action of others, the defendant trespasses on the land of
A, it is those others who are liable to A in trespass. This is illustrated by
Smith v. Stone.11 In that case, an action was brought against Stone for
trespass to Smith's land. Stone pleaded that he was forcibly carried onto
Smith's land by others and did not go there on his own volition. Justice Roll
held that the trespass was committed by those who carried Stone onto
Smith's land and not Stone. He gave this example: If A drives my cattle onto
B's land, A is the trespasser and not I, the owner of the cattle.
But we must distinguish (a) involuntary acts of the kind described above
from (b) an honest mistake. Mistake, as such, is no defence in trespass. If
you cut your neighbour's grass in bona fide belief that you are cutting your
own, it is nonetheless trespass. Here it does not matter whether the mistake
is one of law or fact, provided the physical act of entry was voluntary, e.g. A
strays off a footpath in the dark or B delivers goods by mistake to the wrong
address and places them on the land of the occupier without his consent. A
and B are liable in each example in trespass to land.
Thus, in Basely v. Clarkson,1" the defendant, in mowing grass on his own
land, mistakenly, because the boundary between his land and the plaintiff's
was ill-defined, mowed the plaintiff's land and took the grass away. He paid
the plaintiff two shillings as sufficient amends when the action was
instituted against him. It was held that this was trespass because the act
appeared voluntary and his intention and knowledge are not traversable, i.e.
they cannot be known.
STATE OF MIND OF DEFENDANT
As in all cases of trespass, the plaintiff must prove that the defendant acted
cither negligently or intentionally and the tort action will succeed without
the necessity of proving damage.

WHO MAY SUE IN TRESPASS TO LAND

Trespass lo land is actionable at the suit of the person in possession of the
land at the time when the trespass was committed,
Possession entails, inter alia, the occupation or physical control of the land.
The
degree of physical control necessary to constitute possession may vary from
case to case. The type of conduct which indicates possession will vary with
the type of land. In the case of a building, for example, possession may be
evidenced .by occupation, or, if unoccupied, by having the key or oilier
means of entry: see Wuta Ofei v. Danquah per Lord Guest (P.C.). In that
case, the plaintiff acquired land which he did not immediately occupy but
put pillars on. The defendant built on it. It was held to be Trespass. The
presence of the pillars was taken to evidence possession.
Examples of acts amounting to possession:
a) Building a wall around it;
b) shooting over it
c) taking grass from it;
d) cultivating or using it for pasture; and
e) having the key to the house.
Proof of ownership is prima facie proof of possession. So is occupation. The
rule as applied in Mensah v. Peniana is "Mellior est conditio posidentis ubi
neuter his habet" — where both plaintiff and defendant are trespassers, the
defendant will prevail. See also Oshodemirim v. Tetteh. In Graham v. Peat,
the plaintiff with possession under a void statute, was held to have
possession to maintain action for trespass. In trespass to land, averment of
ownership amounts to averment of possession. In Owiredu v. Mini Timber
Co. Ltd., Ollennu J observed that it was a settled law that a person in
possession of land, though himself a trespasser, is entitled to maintain an
action for trespass against any person who disturbs his said possession
except the person in whom title to the land is vested or anyone claiming in
the right of the true owner (i.e. agent or representative). In Nunekpeku v.
Ametepe, the defendant pleaded that he was in possession. The Supreme
Court therefore held that, in such a case, the plaintiff had to prove that he
was in possession at the lime defendant entered upon the land and
dispossessed him of it.
Note, however, that the mere use of land, without exclusive rights of
possession, (i.e. the power to exclude others) cannot support a suit in
trespass. In Hill v. Tupper, an incorporated canal company, by deed, granted
to the plaintiff the sole and exclusive right liberty of putting or using
pleasure boats for hire on their canal. He brought an action against the
defendant for setting up a rival concern on the canal.
It was held that the grant did not create such an estate or interest in the
plaintiff as to enable him to maintain an action in his own name against a
person who disturbed this right by putting and using pleasure boats for hire
on the canal. Chief Baron Pollock was of the view that the grant merely
operated as a licence or covenant on the part of the grantors and is binding
on them, as between themselves and the plaintiff. But it gives him no right
of action in his own name for any infringement of the supposed exclusive
right. If he has been disturbed, he must obtain permission from the canal
company, to sue in their name.
Mere occupation of premises is also not sufficient to support an action in
trespass, e.g. a lecturer in his bungalow is a licensee and not a tenant and so
cannot sue. Similarly, lodgers, such as guests at a hotel and students in their
dormitories, cannot sue in trespass because they do not have sufficient
possession of their rooms. See, on this point, the decision in Allan v.
Liverpool Overseers.
Again a servant who, for better execution of his duties, is given occupation
of premises cannot maintain an action for trespass to the premises, in his
own name. The last point is illustrated by the decision in White v. Bayley.20
In that case, the plaintiff was employed by the trustees of a society and paid
£75 a year for managing and living on their premises. The agreement was
terminable after six months’ notice. The trustees gave notice to quit and
took possession of the premises. The plaintiff forcibly re-entered. In an
action by the plaintiff, he was non-suited and the trustees obtained
injunction compelling the plaintiff to give up possession Byles J in his
judgment stated:
"The first count of the declaration complains of trespass to land. That
clearly does not lie unless the plaintiff has some estate in the land the
plaintiff had the use but not the occupation of the premises."
Willes J pointed out by way of explanation that if the employee were held to
be vested with occupancy, then the relationship of master and servant or
principal and agent would not hold, since if the servant or agent has been
guilty of misconduct and his appointment is terminated, the servant might
set his master at defiance, and though the master be right in putting an end
to the master-servant relationship, the servant might insist upon holding on
until the expiry of a notice to quit.

SUBJECT MATTER OF TRESPASS

The subject matter of trespass is land and everything attached to it. The
general rule is that he who owns the land is presumed to own everything "up
to the sky and down to the centre of the earth." Cujus est solum ejus est
usque ad coelum et ad inferos — whosoever has the soil, also owns
everything up to the heavens above and down to the centre beneath earth..
Land, in its legal signification, has an indefinite extent upwards so that, by a
conveyance of land, all buildings erected on it, growing timber and water,
being there upon it likewise pass. Any interference with the super-incumbent
column of air may give rise to an action in trespass. In law, land extends also
downwards, so that whatever is in a direct line between the surface and the
centre of the earth belongs to the owner of the surface. The subject matter of
this tort is thus land. This can be divided into surface soil, sub-soil and air
space for purposes of the tort of trespass to land.

(a) Trespass to the surface

Any kind of direct interference with the surface is trespass, e.g., digging,
throwing stones, cutting timber etc. Improper use of a highway may also
constitute trespass. In Harrison v. Duke ofRutland',2~ the defendant owned
the land adjoining the highway and the soil of the highway. The plaintiff
went on the highway expressly to interfere with his game by driving away
the grouse to be shot. He was asked to stop and, when he persisted, the
servants of the defendant held him down until it was no longer necessary. He
brought an action for assault and false imprisonment. The defendant counter-
claimed that the plaintiff was a trespasser. Judgment was given to the
plaintiff. On appeal by both the plaintiff and the defendant, the plaintiff on
the sufficiency of amount paid and the defendants on the trespass issue, it
was held that, since the plaintiff was on the highway for a purpose other than
passing or repassing on it, he was trespassing. So the judgment given in his
favour was set aside.

Again in Hickman v. Maisey, the plaintiff was the owner of land crossed by
a highway. He let out pail to a trainer of horses for the training and trial of
race horses. One could watch the training from the highway. The defendant
who owned a publication which gave account of the performance of race
horses in training used to stand on the highway to watch (spy on) the
training. The trainer objected to this and the plaintiff gave the defendant
notice to discontinue his practice. But he refused. On this occasion, he
walked back and forth on a portion of the highways, the soil of which was
vested in the plaintiff, for about one and a half hours with glasses and took
notes. The plaintiff sued him for trespass and injunction to restrain him.
Judgment was given to the plaintiff. The defendant then brought application
for a new trial. It was held that the defendant had exceeded the ordinary and
reasonable user of the highway and he was therefore guilty of trespass. His
application was therefore dismissed.

(b) Trespass to the sub-soil

There can be trespass to the sub-soil especially where mineral rights have
been granted away: see Cox v. Moulsey. So interference with the sub-soil is
actionable as trespass at the suit of the person in possession of the sub-soil.
(c) Airspace
The law grants a reasonable airspace above the land to the person in
possession of the land. It is a trespass to violate the allowed airspace above
the ground. Here we may recall Lord Ellenborough's statement in Pickering
v. Rudd2 that it would not be a trespass to pass over a person's land in a
balloon. We may also note that, in this case, it was held that there was no
trespass by the projection of the board into the airspace above the plaintiffs
land.
This decision is inconsistent with the one in Kelsen v. Imperial Tobacco Co.
Lid."' The defendants had erected three metal signs advertising their wares.
With the permission of the plaintiff's landlords, they replaced them with a
new sign which encroached slightly on the airspace above the plaintiff's roof.
The plaintiff knew all about this because he allowed the defendants
maintenance men to go on his roof through the skylight which he otherwise
never used. Five years later, after certain business difficulties with the
defendants, the plaintiff demanded the removal of the sign and when the
defendants refused, he sued them for an injunction and succeeded. McNair J
held that this was not a mere nuisance but a trespass and therefore injunction
would lie. The case resolved any doubts as to whether mere interference with
the airspace without physical contact could be trespass. Kelsen's case has
been distinguished from Pickering v. Rucht on the ground that here the
interference was permanent.
But in Ellis v. Loftus Iron Co., the defendant's horse kicked and bit the
plaintiff's mare through the fence and injured it. It was held that this was
trespass by the horse for which the defendant was liable. The horse's mouth
and feet protruded through the fence over the plaintiffs land, — so it
amounted to trespass, even though the trespass was transient. Per Coleridge
C.J.:
"It is clear that, in determining the question of trespass or no trespass, the
court cannot measure the amount of the alleged trespass; if the defendant
place a part of his foot on the plaintiffs land unlawfully, it is in law as much
a trespass as if he had walked half a mile on it."
The Trespass in this case was transient. See also DOUGHERTY v. STEPP.
From these two cases (i.e. Kelsen's & Ellis) it is clear that to violate
someone's airspace is trespass whether the violation is permanent or
temporary. Note, however, that, by virtue of section 29 of the Ghana Civil
Aviation Act, 2004 (Act 678), no action can lie in respect of trespass or
nuisance by reason of transient harmless incursion of an airspace by an
aircraft.
Another interesting case that deals with trespass to the airspace above
someone's land as a species of trespass to land, is Bernstein of Leigh v.
Skyviews General Ltd. ° Are the landowner's rights in the air space above
the property unlimited? The answer in above case was in the negative. It was
held (per Griffiths J) — that the right of the owner of land in the airspace
above his land is restricted to such height as is necessary for the ordinary use
and enjoyment of his land and the structures on it.
Chapter 11

TRESPASS TO CHATTELS

Introduction
The law provides a series of actions for the protection of chattels against
intentional interference. These actions can be fully understood in the
context of the days when formalism and fiction filled the law — through the
forms of action. For as Salmond said,the "forms of action are dead but their
ghosts still haunt the precincts of the law."
As Dixon J said, in Penfolds Wines Proprietary Ltd v. Elliott in English, (as
well as Ghanaian) law, what amounts to an infringement upon the
possessory and proprietary rights of the owner of a chattel is a question still
governed by categories of specific wrongs. These categories are:
a) trespass de bonis asportatis (trespass to chattels, goods, personalty or
moveable property);
b) conversion;
c) detinue (abolished in England since 1977)
d) replevin; and
e) innominate injury to the possession of another for which there existed a
special action on the case for the protection of reversionary interests.
Detinue was the oldest, being a retinue of the old writ of debt. The writ of
trover which is an antecedent of conversion is an action on the case and was
developed as a result of the inadequacy of debt or detinue action which
could be side-stepped by wager (compurgation) of law.
These two writs (trespass and detinue) left gaps in the law. The action on
the case called trover was developed to fill these gaps. But, later, it was
found so useful that it was developed to swallow the other two. Thus, today,
in the case of minor interferences, the action available is that of trespass "de
bonis." Whereas major interferences are met with conversion. Conversion,
therefore, has become the chief method for protecting chattels from
intentional interference. Let us now consider seriatim the actions mentioned
above by Dixon J.

Trespass to chattels (goods)

This tort is committed by intentionally or negligently interfering with a
chattel in the possession of another. The interference must be direct. As
Salmond puts it,4 the tort: "Consists in committing without lawful
justification any act of direct physical interference with a chattel in the
possession of another person." See also Forson v. Koens.
The interference may be an act which brings the plaintiff's body into contact
with the chattel. Thus, it is a trespass to take away a chattel or to do wilful
damage to it. It is a trespass to lean against somebody's car or to throw
water at it. It is equally a trespass to hit somebody's goat or to catch and take
a feather off somebody's hen.
It provides a wider cover of protection than conversion because a mere act
of interference is sufficient and there is no need to prove special damage.
You do not need to prove a denial of title either; that is, the interference
need not be adverse to title. But it is narrower than conversion because of
the requirement that the interference be direct. The defendant's act must be
the act which directly causes the trespass. So, for example, it is no trespass
if the defendant puts poison in food for the plaintiff's dog to consume and it
does; or puts a barrier across a road into which the plaintiff drives his car.
However, there is no reed for the plaintiff to come into contact with the
chattel physically. For example, to throw a stone at a car is trespass.
In the earlier cases, trespass to chattels involved asportation or carrying off.
Later, it was extended to cover situations where the chattel, though
damaged, was not taken away. Finally, it was applied to any physical
interference with chattel in the possession of another.
De bonis is now limited to intentional interference with chattel. For, while
an action will lie for negligent interference which causes damage, this has
been absolved into the general field of negligence actions.

It is actionable per se
The orthodox rule remains that this tort is actionable per se, that is, without
any proof of actual damage. Any unauthorised touching or moving of a
chattel is actionable at the suit of the possessor, even though no damage
ensues (e.g. erase a tape-recording, show a letter to an unauthorised person.
However, a New Zealand judge has held that an intentional interference
with a chattel without asportation is not actionable unless there is harm. The
case is Everitt v. Martin. In that case the plaintiff, while alighting from his
car in a car park, had his coat caught on the dilapidated fender of the
defendant's adjoining car. In an action for damages, the court found that the
defendant was negligent in the sense that he, knowing his car's condition,
should have foreseen the likelihood of such an injury when parking his car
in the heart of a big city. The defendant argued that the plaintiff had
committed trespass, that is by allowing his coat to make contact with the
defendant's car! The judge held that there was no right of action in the case
of merely accidental contacts, where no damage is done. He referred to
Slater v. Swan.9 But it is doubtful whether the latter case really supported
his position because it was an action on the case.
hi Slater v. Swan, the plaintiff alleged, in an action on the case, that the
defendant beat his horse violently and thus deprived him of its services for
several days. The defendant demurred. The defendant alleged that the
plaintiff had positioned his horse in such a way that a cart he had hired to
take his goods could not come in. That he whipped the horse to remove it
from there. Chief Justice Raymond ruled that, in an action on the case,
there was no liability in the absence of special damage. He left it to the jury
to decide whether the defendant had used more force than was necessary to
remove the horse and cart from his door. The jury found for the defendant.
Chief Justice Raymond said that "if a hackney coach stands before a
tradesman's door and hinders customers, he may lawfully take hold of the
horses and lead them away, and is not bound to take his remedy for
damages." The taking of the horse would be justified because of the
obstruction. Secondly, there was no liability because the force involved in
the taking was reasonable and therefore did not constitute damage in law.
Besides, there is continuing authority for the orthodox view that trespass to
chattels, like all trespasses, is actionable per sc. The case is William Leiich
v. Leydon.10 Here the appellants were manufacturers of mineral water.
They sold these beverages to customers in bottles embossed with their name
and took steps to ensure that the property in the bottles remained with them.
The respondent dealt in aerated waters. In addition to the bottled ones, he
had installed in his shop a soda fountain. He made no inquiry of his
customers as to their ownership of the receptacles provided, and made no
examination of the receptacles beyond seeing that they were sufficiently
clean to receive the drink. The appellants brought the action for suspension
and interdict against the respondent for the use of their bottles. It was held
that the respondent was under no duty to examine the bottles before filling
them or inquire into their history and therefore the appellants were not
entitled to interdict*. (In this case there were clear statements supporting the
actionable per se position). See also Fouldes v. Willoughby '' where it was
held that the slightest touching of a chattel is actionable as trespass.
However, it seems clear from a close reading of the cases that the question
of actionability is determined by policy considerations.
In favour of a policy of actionability per se, we may argue that there is a
genuine claim by people to have no interference with certain types of
property. For example, if I leave my toothbrush and you use it, you may not
damage it or do any harm to the brush but I may never use it again. Or
underwear taken from drying line and worn!! Or, a man comes to sit in your
car and refuses to leave when you ask him, but insists on a lift. He may
cause no harm to the seat. But if you evict him, even reasonably, he might
be able to sue you for battery unless you can set up his trespass against him.
So trespass must be actionable per se.
Against such a policy, it may be argued that there is no sound reason for
according protection to non-harmful contacts with chattels. Too much
premium should not be placed on property. Contacts with chattels should
not evoke the same emotive feelings for the necessity of protection as
trespasses to the person. These are serious arguments especially if we
remember that it was held in Fouldes v. Willoughby that the slightest
touching Of a chattel is actionable as trespass.

To put the matter to rest, it may be helpful to remind ourselves of what

Latham CJ. said in the Penfold Wines case:

"A mere taking or asportation of a chattel may be a trespass without the

infliction of any material damage. The handling of a chattel without
authority is a trespass... Unauthorised user of goods is a trespass;
unauthorised acts of riding a horse, driving a motor car, using a bottler are
all equally trespasses, even though the horse may be returned unharmed or
car unwrecked or the bottle unbroken."

Relationship between person suing and the chattel interfered with

This tort primarily protects possession not ownership. An owner out of

possession can, therefore, generally speaking, not sue in trespass. The rule is
that the defendant's act must disturb the plaintiff in his possession of the
chattel. Thus in Ward v. Macauley, the plaintiff was the landlord of a house
which he let ready furnished to Lord Montfort. In levying execution against
Lord Montfort, the defendant, Sheriff of Middlesex, seized part of the
furniture although he was told it belonged to the plaintiff. The plaintiff
brought an action for trespass against the defendant. At the trial, Lord
Kcnyon, C.J. thought trespass could not lie and that perhaps Trover;
however judgment was given for the plaintiff for the value of the goods with
liberty for the defendant to move to enter nonsuit. In the words of Lord Ken
yon C.J:

"The distinction between Trespass and Trover is well settled: the former is
founded on possession; the latter on property. Here plaintiff had no
possession; his remedy was by Trover founded on his property in the goods
taken. ..."

So no trespass.
Thus, to succeed, the plaintiff must prove that he was in possession of the
chattel at the lime of the interference; that is, either that the chattel was
within his control by way of physical grasp or otherwise. For example, A
leaves his goods in his house and goes to work. He is, in law, still in
possession of the car B leaves things in his car which he parks in the car
park in front of the University Bookshop. He is still in possession of the car
and its contents.
This principle of possession is important, particularly for rural communities
in Ghana as illustrated by the decision in Hamps v. Darby The defendant
was a farmer who, on the crucial date, had a crop of valuable peas on his
farm-. The plaintiff kept racing pigeons as a hobby. He released them daily
for exercise and they usually returned after 15 to 20 minutes. On the crucial
day, he released nine birds which settled on and did serious damage to the
defendant's crops. After shouting unsuccessfully to drive them away, the
defendant took his gun and without first firing a warning shot, shot at the
pigeons killing 4 and injuring a fifth. The plaintiff brought an action in the
county court and the judge awarded him £200 damages. The defendant
appealed. The appeal was dismissed per Greene M.R. and Evershed L.J. The
court held inter alia:

(1) "... the owner of tamed or reclaimed pigeons continues to have property
in and possession of his birds after they have flown from his dove-cote, so
long as the birds retain an animus revertendi to his control.

(2) No Justification proved because plaintiff did not establish that

shooting them was the only thing he could do. The onus was on him to
justify the shooting." So an action in trespass can be maintained by the
plaintiff.
Reference can also be made to the decision in the Winkfield. ' This was an
appeal from the order of a lower court presided over by Sir Francis Jeune
dismissing a motion made on behalf of the Postmaster-General. On April 5,
1900, there occurred a collision between the steamship, The Mexican and
the Winkfield. The Mexican was sank as a result of the collision. The
owners of the Winkfield under a decree limiting liability to £32,514 17s.
lOd. paid that amount into court. The Postmaster-General on behalf of
himself and the Postmasters-General of the Cape Colony and Natal claimed,
inter alia, to recover from that sum the value of letters, parcels etc. in his
custody as bailee and lost on board The Mexican. It was agreed by all the
parties that the claim was one by a bailee who was under no liability to his
bailor for the loss in question, the legal position of which was settled by
Claridge's case. ' On the authority of that case, therefore, the court dismissed
the claim. On appeal it was held by the Court of Appeal (Collins M.R.,
Stirling and Matthew L.J J concurring) that the bailee in possession can
recover the value of goods, although he will have a perfect defence to an
action by the bailor for damages for the loss of the thing bailed, in an action
against a stranger for loss of goods caused by the stranger's negligence; that
is possession is good against a stranger whatever the rights arc between the
bailor and the bailee.
There seems no requirement in trespass that the possession should be
lawful. It may well be therefore that, as against a stranger, a thief of a
chattel may bring an action for trespass to it. This point may be illustrated
with the case of Wilson v. Lombank Ltd. The plaintiff bought a car from A
who had no title to sell. Apparently, the defendants had also bought the
same car at one time. The plaintiff took the car to a garage for repairs. A
representative of the defendants took the car away when the repairs were
finished. And, when they discovered it belonged to someone else, delivered
it to the true owner. The plaintiff brought this action for damages for
trespass claiming the full value he had paid as well as the cost of the repairs.
Judge Hinchcliffe said he was entitled to succeed because he had possession
though no title "because he had a right to immediate possession as well as
possession."
Where you sell goods upon a judgment as a judgment creditor, you have to
prove the judgment upon an action for trespass. This was decided in White
v. Morris. In this case one Robinson who had earned on business as a draper
at Sunderland became insolvent. He assigned all his household furniture and
stock in trade to trustees for the benefit of his creditors. The trustees took
possession and sold the goods to Robinson and one Story the latter paying
for them partly in money and partly by bills. When the bills became due,
and Story could not meet them, the present plaintiff, White, agreed to lend
Robinson and Story £120 with the goods in question as security. The goods
were accordingly assigned to White. By the deed of assignment, Robinson
and Story covenanted to pay White the £120 on a given day with interest
and assigned to White all the goods in a certain shop and dwelling place (in
respect of which this action was brought), to hold the goods and premises
assigned until payment of the money and with a power to White to sell upon
default in payment.
Morrison, Gibson and Wheatley who were manufacturers at Manchester
were creditors of Robinson at the time of the first assignment. They
declined to concur in that assignment and after the trustees had sold the
property to Robinson and Story they sued Robinson in the Sunderland
county court and obtained judgment against him.
Taylor and Thompson executed this judgment and sold the goods. The only
evidence of the seizure and sale was, the production of the writ of mandate
directed to them with the indorsement of the high bailiff
In an action by the plaintiff for damages to the goods, it was held that "when
goods are assigned as security for an advance of money, upon trust to permit
the assignor to remain in possession of them until default in payment at the
time stipulated ... the assignee has a sufficient possession to enable him
maintain trespass against a wrongdoer." The judgment creditor in the
circumstances has to prove the judgment.

The following exceptions to this rule on possession may be noted

1. Trustees are allowed to sue for trespass to chattels in the hands of
beneficiaries.
2. The title of personal representatives (administrators and executors) is
treated by the law as relating back to the time of death of the deceased and
they are allowed to sue for interference in the estate of the deceased which
occurred before probate or letters of administration.
3. In a bailment for a fixed term, the bailor has no possession. But, in a
bailment at will, both bailor and bailee can sue third parties although
physically the goods interfered with are in the hands of the bailee. For
bailment for a fixed term, only the bailee can sue. The bailee can sue for full
value of the chattel, although there is a legal duty on him to hand over that
part of the damages that is over and above his interest, as was noted in The
Winkfield.
4. The owner of a franchise which entitles him to goods can bring an
action in trespass in respect of interference with the goods before he has
actually taken control of them.

Measure of damages
Where he is deprived completely, a plaintiff is entitled to recover full value
of the chattel. The plaintiff who is successful in an action for partial damage
is entitled to actual damage, i.e. partial.

Requisite mental requirement

The law is that, for trespass to goods, it must be shown that the interference
was deliberately or intentionally made. The best authority on the mental
state required by law for an action in trespass to chattels is National Coal
Board v. Evans. An electrical cable had been placed under the land of a
county council by the plaintiffs or their predecessors without the knowledge
of the owners-of the land. The council contracted with the first defendants
to excavate a trench on this land, handing to them a plan which did not the
cable. The first defendants sub-contracted with the second defendant to
excavate the
trench; and their driver, in the course of doing so with a mechanical
excavator damaged the cable. The plaintiffs brought an action in trespass
against both defendants and obtained judgment. The defendants appealed.
It was held by the Court of Appeal (Cohen, Simpleton and Morris L.JJ) that
the appeal must be allowed. There was no liability in trespass, since the act
was involuntary and accidental. The defendants were utterly blameless. The
injury was, in the main, attributable to the plaintiffs or their predecessors,
who had committed trespass by placing their cable under the land county
council without their knowledge or consent. By "not intentional", in the
above
case, we must understand that the court meant that the driver did not
deliberately trespass to the cable.
Halaby v. Halaby is also useful on this point. The plaintiff was an agent for
the firm Halaby Brothers. In 1957, the West African Court of Appeal
ordered the partnership properties to be sold. The defendants went to
Nandom to carry out the sale. They found all the goods had been removed
from the firm's store. Upon inquiry, they discovered the goods and a safe
belonging to the firm in a store which the plaintiff claimed to be his. They
sold the goods and took the safe to Kumasi where it was opened the
registrar. Apparently some of the goods sold belonged to the plaintiff. He
therefore brought an action for trespass and claimed £1,166 3s. 6d., the
value of the good £200 in cash removed, he alleged, from the safe and
£4,000 general damages. The was dismissed and the plaintiff appealed. It
was held that the appeal must be dismissed. The trespass complained of was
involuntary and accidental. The defendant cannot be held liable for any
damage as such damage was largely attributable to the plaintiff fraudulent
act in removing the firm's goods into his own store. (Clear authority
proposition that for there to be liability in trespass to goods the interference
must have been intentional).
So the plaintiff in an action in trespass to chattels must prove that the
defendant acted intentionally. If the interference resulted from negligent
conduct, then the plaintiff should bring the action in the tort of negligence.

Chapter 12

CONVERSION

Introduction
This tort is concerned essentially with conduct which is an affront to
another's property or title in a chattel. In other words, it seeks to protect a
person's ownership, control and general dominion over them. As Lord
Nicholls said in KUWAITI AIRWAYS CORPORATION v. IRAQI
AIRWAYS (Nos. 4 & 5) [2002] A.C. 883 at 1092:
"Conversion is the principal means whereby English law protects ownership
of goods. Misappropriation of another's goods constitutes conversion.
Committing this tort gives rise to an obligation to pay damages." This
statement was quoted with approval by: Dr. Date-Bah, JSC in the
YUNGDONG case (infra).
To understand this tort, we must delve into its origin and development. We
shall attempt this briefly here.1
There are three main ways by which A may deprive another of chattel and
thereby open himself to an action in law:
a) by wrongly taking it;
b) by wrongly detaining it; or
c) by wrongly disposing of it.
In (a), the possession of the tortfeasor is wrongful ab initio. In (b), he may
acquire possession lawfully but retains it wrongfully. In (c), he need not
take it nor wrongfully detain it, but he so acts that it is lost to the actual
owner.
Originally the law provided three distinct forms of action for the redress of
these three situations mentioned, namely:
a) Trespass de bonis asportatis for wrongly taking the chattel.
b) Detinue for wrongful detention of the chattel.
c) Trover for wrongful disposal of the chattel.
Trespass and detinue date from the early beginnings of the law. Trover was
later developed, (15th to 16th century).
In the modem law, the term conversion covers the three situations described
above, but, originally, it was limited only to the third situation. Originally,
therefore, to convert goods meant to dispose of them, to deal with them in
such a way that neither the owner nor the wrongdoer had any further
possession of them, e.g. by consuming, destroying or selling them. To take
away someone else's goods, however, unlawful, was not to convert them.
Nor did the mere detention of the goods of another in defiance of the
owner's title amount to conversion, e.g. money converted by the thief
spending it, food by eating it, jewels by pawning them. Conversion now
covers the whole field because, as a result of a historical development, it
was extended to appropriate or covet the territory which was formerly
occupied by the other forms of action.

Historical development
Before trover was developed, interferences now amounting to conversion
were redressed by detinue. This is because the defendant in detinue, who
was charged with unjustly detaining goods of the plaintiff, was not allowed
to object to the action on the grounds that he had already disposed of them
and therefore no longer detained them.
Trover was developed, because detinue was an unsatisfactory remedy since
it permitted wager of the law (a form of licensed perjury as noted earlier
under trespass). So pleaders began to avoid all forms of action in which
wager was allowed by the law and invented other forms of action in which
the plaintiff was allowed the benefit of a jury. The declaration in trover was
simply a variation of the declaration in detinue. The only material difference
was that in trover the defendant was sued for wrongly converting the chattel
to his own use, while in detinue the allegation was one of unjustly detaining
it.
Detinue was of two kinds: (a) detinue sur bailment; and (b) detinue sur
trover.
a) was the appropriate remedy if the defendant got the property through a
bailment or contract between the parties or some-how lawfully (bailment);
and
b) where the defendant had found the goods or come into possession of
them in a manner other than by contract with the owner (finding).
Allegations of bailment and finding were, however, fictional,
immaterial and untraversable. The means by which the defendant obtained
possession of the goods was unimportant. The only issues were
Did the goods belong to the plaintiff?
Has the defendant unjustly detained them?
The action of trover (and later conversion) was modelled upon that of
detinue sur trover. Here the plaintiff alleged three things:
a) that he had possession of certain goods de bonis propriis — a legal
fiction (could have alleged a bailment instead);
b) that he casually lost them and defendant found them enough to say,
ldevenerunt ad manus defendentis');
c) the defendant did not return them but wrongfully converted them to his
own use.
Trespass and trover were both actions founded upon possession and for
centuries they remained as alternative remedies for the wrongful taking or
damaging of chattels. There was one important difference as to the measure
of damages.
The theory of trespass was that the plaintiff remained owner, with his
possession merely interrupted or interfered with, so that when the chattel
was tendered back to him he had to accept it. His recovery was limited to
damages to the chattel or to his possession, often considerably less than the
value of the chattel.
The theory of trover on the other hand was that the defendant, by
"converting" the chattel to his own use, had appropriated the plaintiffs
property for which he was required to compensate him. The plaintiff was
therefore not required to take back the chattel when tendered to him and he
recovered, as damages, the full value of the chattel at the time and place of
conversion. Thus the defendant was forced to buy the chattel through trover.
The basic difference between trespass and trover or conversion was
poignantly brought out in Fouldes v. Willoughby. This was an action in
trover for two horses. The defendant was manager of a ferry. The plaintiff
embarked upon the defendant's ferry with two horses and paid the
appropriate fare. When the defendant came on board, he was told that the
plaintiff had misbehaved on board; he therefore told the plaintiff that he
would not carry his horses and that he should take them off the boat. The
plaintiff refused to do this. The defendant then took the horses off the boat
and put them onshore and they were conveyed to a hotel by his brother. The
plaintiff remained on board and was conveyed to the other bank. Later, the
horses were sold to defray the cost of keeping them. The plaintiff thereupon
brought this action for trover.
The learned judge, in summing up, told the jury that the defendant, by
taking the horses from the plaintiff and turning them out of the vessel, had
been guilty of conversion unless they thought the plaintiffs conduct justified
his removal from the boat and he had refused to go without the horses. The
defendant appealed. It was held that this was a misdirection because, per
Lord Abinger C.B.:
"... a simple asportation of a chattel, without any intention of making any
further use of it, although it may be a sufficient foundation for an action of
trespass, is not sufficient to establish a conversion."

The intention of the defendant should have been put to the jury. For, if his
object was simply to induce the plaintiff to go on shore himself, then the
defendant had not done anything inconsistent with or adverse to the rights
which the plaintiff had in the horses. Baron Alderson explained the law in
the following terms:

"Any asportation of a chattel for the use of the defendant or a third person
amounts to conversion; for this simple reason, that it is an act inconsistent
with the general right of dominion which the owner of the chattel has in it,
who is entitled to the use of it at all times and in all places. When, therefore,
a man takes that chattel, either for the use of himself or of another, it is a
conversion. So, if a man has possession of my chattel, and refuses to deliver
it up, this is an assertion of a right inconsistent with my general dominion
over it and the use which at all limes and in all places, I am entitled to make
of it; and consequently amounts to an act of conversion. ... But the question
here is, where a man does an act, the effect of which is not for a moment to
interfere with my dominion over the chattel, but, on the contrary,
recognising throughout my title to it, can such an act as that be said to
amount to a conversion? / think it cannot."

Thus the action in trover failed in the case because there was no intention on
the part of the defendant to interfere with the plaintiffs right or dominion
over the horses.
What is conversion then?
Conversion may be defined (in the words of Street or Baron Alderson in
Fouldes v. Willonghby6) as an intentional interference or dealing with the
chattel, which is seriously inconsistent with the possession or right to
immediate possession of another.
Quoting with approval Lord Nicholls' discussion on the nature of the tort in
KUWAITI AIRWAYS CORPORATION v. IRAQI AIRWAYS (Nos. 4 &
5) at 1054, the supreme court of Ghana (per Dr. Date-Bali JSC) at p. 846 in
YOUNGDONG INDUSTRIES LTD. v. RORO SERVICES "reflected on
the tort thus;
" Mere unauthorised retention of another's goods is not conversion of
them. Mere possession of another's goods without title is not necessarily in
consistent with the rights of the owner. To constitute conversion detention
must be adverse to the owner, excluding him from the goods. It must be
accompanied by an intention to keep the goods". In similar vein, the
Supreme Court of Ghana stated in STANDARD CHARTERED BANK
(GHANA) LTD. v. Nelson [1998-1999] SC GLR 810 at 817 thus:
….conversion, then, is the wrongful possession of goods or chattel
belonging to another and the use thereof by that other." See also T. K.
SERBEH & Co. LTD v MENSAH, [2002-2006] SC GLR 341.
There are two elements contained in this interference: (a) dealing with the
chattel in a manner inconsistent with the right of the person entitled to it;
and (b) exhibiting an intention, by such dealing, to deny another's right or to
assert a right which is adverse to or at variance with his. Therefore an action
in conversion cannot succeed, if the interference does not lend itself to the
conclusion that the defendant is setting up a rival claim.
TITLE TO SUE (Capacity)
In conversion, the plaintiff must have either actual possession or a right to
immediate possession at the time of the interference. Thus, although the tort
of conversion protects title, and although from the point of view of the
defendant, his action can only be challenged, if it is inconsistent with
ownership or the plaintiff's title, the interest that the plaintiff must prove to
succeed is short of actual ownership.
This is exemplified by the decision in Armory v. Delamirie? In this case, the
plaintiff, a chimney sweeper's boy, found a jewel and carried it to the
defendant's shop (the defendant was a goldsmith) to know what it was, and
delivered it to the apprentice who, under the pretence of weighing it, took
out the stones, and informed his master that it was worth three and half
pence. The master offered the money to the boy who refused to take it and
insisted on having the jewel back. The apprentice gave him back the socket
without the stones. He sued in trover. It was held (per Pratt CJ.) as follows:
1. The finder of a jewel, though he does not by such finding acquire an
absolute property or ownership, yet he has such a property as will enable
him to keep it against all but the rightful owner, and can consequently bring
an action in trover.
2. The action in law must be against the master, who gives credit to his
apprentice and is answerable for his neglect.
3. The measure of damages should be assessed at the value of the jewel of
the finest water that would fill the socket, i.e. the value of the best jewels.
Thus mere possession, without title, was held in this case to be sufficient to
maintain an action in conversion.
The reason for permitting the person in possession to sue in conversion is
said to be that the person in possession has sufficient title against the
wrongdoer who has no rights at all. He is also in a better position to account
to the true owner should he come back later. But an owner not in possession
cannot maintain an action in trover. So it was held in Gordon v. Harper?
However, an owner out of possession is not entirely remediless. He can sue
in an action on the case for damage done to his reversionary interest with
respect to those interferences which would make the reversionary interest
valueless see the Pen fold Wines Proprietary Ltd. v. Elliot case. A case in
point is Mears v. London & South Western Rly. Co. The plaintiff was the
owner of a certain barge which he had hired to a third person. The
defendant's servants negligently caused damage of a permanent nature to it,
while they were lifting a boiler from the barge. At the time the damage took
place, the barge hiring agreement was still subsisting. The defendants
denied any liability. It was held (per Erie C.J. and Williams J) that trover
will lie for a permanent injury done to a chattel while the owner's right to
possession is suspended. The determination of what would suffice as
possession to support an action in conversion can only be confidently
speculated on by reference to the decided cases and principles emerging
therefrom.

What is possession for the purposes of this tort?

Professor Street defines it in terms of an animus possidendi — an intention
and a factum (power). He explains that possession connotes the power to
control and the intention to exclude all others from the enjoyment of the
chattel. This ideal and simplified conception is watered down in its
application in the cases. For example, if one does not know about a chattel,
you can hardly be said to have an intention to exclude others from its use or
enjoyment. Yet the tort often protects damage to things in the subsoil and it
can hardly be said that a person knows what is beneath the soil. In Ahiable
v. Dosu, it was held that the owner of land was prima facie owner of
chattels found in it unless he divested himself by abandonment, sale or gift.
For the purposes of possession in the tort, the law distinguishes between
chattels found in or attached to land and those found on land. The following
three cases discuss the law on possession relating to chattels found in or
attached to the land:
1. South Staffordshire Water Co. v. Sharman.13 In 1895, the plaintiffs
employed the defendant together with a number of other workmen to clean a
pool for them. During the cleaning, the defendant found two gold rings at
the bottom of the pool and refused to give them to the plaintiffs when
required. He gave them to the police who, failing to find the owner returned
them to him. The plaintiffs sued the defendant in detinue for the recovery of
the rings. The county court gave judgment for the defendant on the authority
of Armory v. Delamirie. No contract existed between them requiring the
handing over of things found during the cleaning. The plaintiffs appealed.
The appeal was allowed (per Lord Russell of Killowen C.J., Wills J
concurring). Speaking for the appellate court, Lord Russell, relying on
Pollock & Wrights', Essay on Possession in the Common Law at p. 41,
quoted the law thus:

"The possession of land carries with it in general, by our law, possession of

everything which is attached to or under that land, and, in the absence of a
better title elsewhere, the right to possess it.
And it makes no difference that the possessor is not aware of the tiling's
existence ... It is free to anyone who requires a specific intention as part of a
de facto possession to treat this as a positive rule of law. But it seems
preferable to say that the legal possession rests on a real de facto possession
constituted by the occupier's general power and intent to exclude
unauthorised interference... Where a person has possession of a house or
land, with a manifest intention to exercise control over it and the things
which may be upon or in it, then, if something is found on that land,
whether by an employee of the owner or a stranger, the presumption is that
the possession of that tiling is in the owner of the “locus in quo”
2. In Elwes v. Brigg Gas Co., the plaintiff, Lord of the Manor of Brigg,
demised to the defendants, for 99 years, a piece of land in Brigg, in
December
1885, reserving to himself all mines and minerals. In April 1886, the
defendant's company, while excavating the land prior to the erection of a
gasholder, discovered, embedded in the clay about six feet below the
surface,
a prehistoric boat (about 2000 years old). The plaintiff asked for the
delivery
to him of the boat and die defendant declined, asserting that the boat
belonged
to them. The plaintiff sued. It was held that the plaintiff had a lawful
possession of the boat, good against all the world and therefore the property
in
the boat. It was immaterial that he was unaware of the existence of the boat.
The licence to remove and dispose extended to the clay and ordinary soil
likely to be found in pursuing the licence to excavate but did not extend to
what was unknown and not contemplated and therefore did not comprise the
boat.
3. In London Corporation v. Appleyard, the plaintiffs, freeholders of a
building site, had leased it to A who was financed by B. A clause in the
agreement required the handing over of "every relic or article of antiquity,
rarity or value" to the plaintiffs. A wrote to B confirming that they held the
property in trust for B. B entered into a building contract with C for the
construction of a new building. Two workmen of C, while working on the
site, found, in the cellar, an old wall safe built into the wall. Inside the safe
was a wooden box containing bank notes issued in 1943 or 1944 to the
value of £5,728. The true owners were never found. On the issue of who
was entitled to the bank notes in the absence of the true owner, the court
held that it was the corporation. This conclusion was reached by the court
on the grounds that:
a) the safe being built into the wall formed part of the demised premises
and so the safe and its contents belonged either to A or B, one or other of
whom was in possession of the premises and thus had a better title than the
finders.
b) The bank notes were articles of value within the clause by which the
corporation had reserved such things to themselves.
c) possession was in B either because (1) they financed it or (ii) because
of the letter they were written by A.
These three cases state clearly the principle that the occupier or owner of a
land to which things are attached has a right to them when found. They
indicate that possession of the premises will prevail, against the finder. But
the right of the tine owner will always prevail; that is the true owner of a
chattel found on land has a title superior to that of anybody else. As was
stated in Moffat v. Kazana,18 the true owner's right to sue is based not on
possession but on a right to immediate possession.
The distinction between chattels found on land and in land makes trivials
important. If a chattel is found on a dry patch, the finder has possession; if
in mud, the owner or occupier has possession! But maybe this is to
encourage finders to be honest, though the criminal law already seems to do
this.
As regards chattels found on the land, as opposed to attached to or under,
there is a conflict as to who has the right to sue. Harris in his article19
suggests that, on public policy grounds, the owner has this right, since there
is a chance that he will remember where he placed it and 4»o back for it.
From the point f view of the protection of the true owner, possession must
be said to vest in the occup.er of the land on which the chattel is found as
against the finder. But the law does not always work in this way. We can
illustrate this observation with the decision in Bridges v. Hawkesworth.
Bank notes were accidentally dropped by the owner in the shop of the
defendant. The plaintiff found them on the floor. He gave them to the shop-
keeper to find the owner. Later, he sought to recover them from the shop-
keeper who refused to surrender them to him. In an action by the plaintiff,
the county court judge decided that the defendant was entitled to the custody
of the notes as against the plaintiff. This was reversed on appeal by the
Court of Queen's Bench. This is how Patterson J explained the decision on
appeal:
"The notes were never in the custody of the defendant, nor within the
protection of his house, before they were found, as they would have been
had they been intentionally deposited there; and the defendant has come
under no responsibility, except from the communication made to him by the
plaintiff, the finder, and the steps taken by way of advertisement. ... We
find, therefore, no circumstances in this case to take it out of the general rule
of law, that the finder of a lost article is entitled to it as against all persons
except the real owner, and we think that that rule must prevail and that the
learned judge was mistaken in holding that the place in which they were
found makes any legal difference."
Similarly in Hannah v. Peel, the defendant was owner of a house he had
never occupied himself. While the house was requisitioned, the plaintiff, a
lance-corporal, found in a bedroom used as a sick bay, loose in a crevice on
top of a window frame, a Brooch the owner of which was unknown. On the
advice of his commanding officer, he handed it over to the police and
received a receipt for it. There was no evidence that the defendant had any
knowledge of the existence of the brooch before it was found by plaintiff.
But the police, to whom the plaintiff handed it to ascertain its owner, gave it
to the defendant who, claiming it because it was on his premises, sold it.
The plaintiff thereupon sued the defendant for the return of the brooch or its
value and damages for its detention. Birket J. held that the plaintiff must
succeed. The judge based his decision on Bridges v. Hawkesworth. He was
satisfied that the brooch was "lost" in the ordinary sense of the word and
"found" again in the ordinary sense. The defendant had no knowledge of it
until it was brought to his notice. The finder was held entitled to the chattel
as against the owner of the premises who had also not been physically in
occupation of the premises. [NB: the fact that the owner was never in
occupation may probably have been the reason the case was so decided].
However, in Hibbert v. McKieman,22 the appellant went on to the links of a
gold club and took eight golf balls "animus furandi," (to use Chief Justice
Goddard's description of his intention) which, it was found, had been
abandoned by their former owners. He knew a police officer had been
stationed there to warn off trespassers. The appellant was arrested, charged
with stealing the bails and convicted. He appealed. The appeal was
dismissed. Lord Goddard C.J., said:
"Every householder or occupier of land means or intends to exclude thieves
and wrongdoers from the property occupied by him, and this confers on him
a special property in goods found on his land sufficient to support an
indictment if the goods are taken therefrom, not under a claim of right, but
with a felonious intent."
[NB: l. The club was held to have possession in the balls enmeshed in grass
on the surface of the golf course.
2. The court took account of the fact that the club had positioned a
policeman on the precincts to warn off trespassers - this was held to
constitute the animus possidendi. For his apart, Pritchard J expressed
himself as follows:
"Before it can be said that the members did acquire such a possession of the
balls, I think it must appear from the facts found that they intended to
exclude others from interfering with the balls, and that they had over them a
degree of power which was sufficient for the purpose of giving effect to
such intent. In my judgment, it is clear on the facts that the members did so
intend and had such power."

It seems then that there are cases supporting both views. It would appear
that the preferable statement of the law in this regard would be, namely that
whether the owner of the land is in possession of chattels found loosely on
the land depends on whether he intends and has the power to exercise
physical control over them. If they are under or attached to the land, this
will be presumed; if, on the other hand, they are loose on the land, the
nature of the chattel, the extent of public access to the land, whether the
owner occupies the land, and other like factors will be relevant in deciding
whether the owner of the land has the necessary animus and factum to be
said to be in possession of them when found.

RIGHT TO IMMEDIATE POSSESSION

As noted already, the plaintiff in an action in conversion must prove cither
that he was in possession of the chattel at the time of the interference or had
a right to immediate possession of it. By right to immediate possession, we
mean that the plaintiff must be unconditionally entitled to assume
possession of the goods if he so wishes. Such an unconditional right to
possession is sufficient to ground an action in conversion. Thus, in Lord v.
Price, the plaintiff bought two lots of cotton at an auction under conditions
which required him to pay a deposit at the time of the sale and the balance
immediately after and before delivery. The Plaintiff paid the deposit but did
not pay the residue of the purchase money and left the cotton in the field
where the auction had been held. On the same day, he removed 112 of the
lots. When he went later to take the rest it was gone, removed by the defend
mistakenly. The plaintiff sued for alleged conversion. The learned assessor
dismissed the plaintiffs action on the ground that the vendor's lien for
unpaid purchase-money prevented the plaintiff from maintaining trover and
gave leave to the plaintiff to move the Court of Exchequer for a new trial. A
rule having been accordingly obtained, t was held (per Bramwell B. and
Amphlett B) that the rule must be discharged on the grounds that the action
cannot be maintained without a right of present possession in the plaintiff.
That right was in the vendor who was entitled to retain possession of the
goods until the balance had been paid. The vendor could have maintained
the action but not the plaintiff.
In conversion cases based on sale then, it would seem that a buyer under a
sale transaction not involving credit has no sufficient interest to sue unless
he has paid the purchase price. Where however the goods are sold on credit,
there is no seller's lien and the plaintiff may then sue. This rule involving
credit sales was developed in Bloxam v. Sanders. The defendant, a hop-
merchant, on several days sold various parcels of hops to B by contract. The
usual time for payment in the trade was the second Saturday subsequent to
the purchase. B did not pay for the hops at the usual time and the defendant
gave notice that unless they were paid for by a certain date they would be
resold. They were not paid for and the defendant resold a part with B's
consent. B afterwards became bankrupt. The defendant then sold the rest
without the assent of B or his assignees (the plaintiffs in this case). The
defendant delivered accounts of sales of the hops sold without B's consent
and charged B warehouse rent and commission. The hops were stated to
have been sold for B. Apart from the hops bought from the defendants, B
had also placed some in their warehouse for sale by them. Some of that and
the one bought from the defendants were left in the warehouse. B's
assignees demanded these from the defendants and they refused to deliver
them. Whereupon the assignee brought this action. The jury found that the
defendant had not rescinded the contract of sale. Bayley gave judgment to
the plaintiffs in respect of hops not bought from the defendants. As regards
those bought from them, he held that an action in conversion will not lie.
This is because although a vendee of goods acquires a right of property by
the contract of sale, yet he does not acquire a right of possession to the
goods until he pays or tenders the price.

"Where goods are sold and nothing is said as to the time of the delivery, or
time of payment, and everything the seller has to do with them is complete,
the property vests in the buyer, so as to subject him to the risk of any
accident which may happen to the goods, and the seller is liable to deliver
them whenever they are demanded upon payment of the price; but the buyer
has no right to have possession of the goods till he pays the price. ... If the
goods are sold on credit, and nothing is agreed upon as to the time of
delivering the goods, the vendee is immediately entitled to the possession,
and the right of possession and the right of property vest at once in him; but
his right of possession is not absolute; it is liable to be defeated if he
becomes insolvent before he obtains possession.

MENTAL STATE REQUIRED FOR LIABILITY IN CONVERSION

In Simmons v. Lillystone, we find the following statement of principle by
Baron Parke:

"... in order to constitute a conversion, there must be an intention of the

defendant to take to himself the property in the goods, or to deprive the
plaintiff of it. If the entire article is destroyed, as for instance, by burning it,
that would be a taking of the property from the plaintiff and depriving him
of it, although the defendant might not be considered as appropriating it to
his own use. In this case, nothing is done but cutting the timber, and by
accident, it is washed away by the river ... we think that does not amount to
conversion."

The basic rule then is that conversion is based on intentional conduct.

Negligently interfering with a chattel is not enough. There is no need for an
intention on the part of the defendant to consciously do wrong. It is enough
that the defendant did die act intentionally, which is inconsistent with the
true owner's right to possession. Ignorance and accidents are thus no
defences to conversion. That is to say the defendant must do intentionally
the act which the plaintiff relies on as conversion — not that the defendant
intends to commit conversion.
Williams v. Geese illustrates the view that negligence does not constitute
conversion. This was an action for trover of a coat and pantalons. The
defendant kept a public house at Oxford frequented by fanners. The
plaintiff's clothes, packed in a box, were deposited in the defendant's kitchen
behind the settee by a person who said the box was to stay till called for.
The box was never seen again by the plaintiff but when he inquired for it,
the defendant said "I suppose it is behind the settee." The court gave verdict
for the plaintiff with leave for the defendant to move to enter a non-suit
instead, on the ground that there was no evidence of conversion. A rule nisi
was obtained and was subsequently made absolute. In a similar action by a
sister of the plaintiff against the defendant, it was proved that the defendant
received parcels for carriers; that the parcels were placed behind the settee
and when the parcel in question was asked for the defendant's wife said:
"my husband has sent it, no doubt, by Croft the Carrier: he has a bad
memory, it is a pity you did not speak to me." Verdict was given for the
defendant. The plaintiff moved for a new trial on the ground that the wife's
language showed that the defendant had interfered by giving directions,
which would amount to conversion. The court rejected this contention. In
the opinion of the court, the evidence disclosed only negligence and that
will not support an action in conversion.
Ashby v. Tolhurst is to the same effect. Here the owner of a motor car left it
in a private parking ground. On payment of one shilling, he received a ticket
containing a receipt for the one shilling followed by a provision:
"The proprietors do not take any responsibility for the safe custody of any
car or articles nor for any damage to the cars or articles however caused ...
all cars being left in all respect entirely at their owners' risk."
When the owner returned for his car, the attendant told him that he had just
given it to the owner's friend. The man who had so obtained the car had
neither the key nor the ticket. The car was never recovered. The owner
brought this action against the car park proprietors for damages, among
others, for conversion by misdelivery. The county court judge found for the
plaintiff and the defendant appealed. It was held (per Greene MR, Romer
and Scott L.JJ) that:
The relation between proprietors and car owner was that of licensor and
licensee; therefore the proprietors came under no liability whatsoever. No
possession could therefore pass to the proprietors.
The attendant's act did not amount to misdelivery.
Even if a contract of bailment could be inferred and the act of the attendant
constituted misdelivery, the proprietors were relieved of all liability by the
conditions.
No term could be implied that no ticket, no parting with car.
This case is authority for the proposition that negligence will not constitute
conversion.

STRICT LIABILITY
Liability in conversion is strict i.e. no need to prove fault on the part of
defendant. This is illustrated by the decision in Rollins v. Fowler, B
fraudulently obtained cotton from F. H (a cotton broker who was ignorant of
B's fraud on F) purchased it in good faith from B in the belief that M, one of
his ordinary clients, would accept it. M did afterwards accept it. H received
only a broker's commission from M. It was held that H bought of B as a
principal and by transferring to M had committed conversion against F the
true owners:
"Any person who, however, innocently obtains possession of the goods of a
person who has been fraudulently deprived of them and disposes of them,
whether for his own benefit or that of any other person, is liable in
conversion."

Cleasby J said robustly at 639 that:

"... the liability under it (i.e. conversion) is founded upon what has been
regarded as a salutory rule for the protection of property, that persons deal
with the properly in chattels or exercise acts of ownership over them at their
peril."

See also Kabbara Bros. Transport v. Anin Here the plaintiffs' vehicle, at the
instance of the first defendant (judgment creditor), was seized by a deputy
sheriff, and sold by the second defendant (auctioneer) to the third defendant,
a bona fide purchaser. The vehicle did not belong to the judgment debtor.
Counsel for the second defendant objected to the action on the ground that
the second defendant was acting as agent for the deputy sheriff who is an
officer of the court. Counsel for the third defendant objected on the ground
that his client bought as an innocent purchaser for value. Edusei J (as he
then was) overruled the objections. In his view:
"There had been an adverse dealing with the plaintiffs' property in the
vehicle with the result that the plaintiffs have been deprived of the
immediate use and enjoyment of the said vehicle. Any person dealing
adversely with the property of , the plaintiffs may have to answer his claim
and the action of trover or conversion against any such person."

Dr. Date-Bah, JSC has underlined the point more recently in

YOUNGDONG INDUSTRIES LTD v. RORO SERVICES, [2005-2006]
SC GLR 810 at 841 thus:
….conversion is a tort of strict liability. In other words, if an act amounts to
conversion, it is irrelevant to the liability of the tort feasor whether he or she
is aware of that fact or not or is at fault.

SUBJECT MATTER OF CONVERSION

Types of property which can be converted traditionally were those based on
the fiction of "losing and finding." Only tangible property i.e. chattels could
be lost and found and therefore form the subject mailer of conversion. For
example, land could not be lost or found, so could not form the subject
matter of conversion. So also choses in action could not form the subject
matter of conversion. Commercial convenience and business exigencies
however, dictated a review of this fiction. Thus, it is that intangible properly
or choses in action, if represented in the ordinary course of business by a
special
written document (e.g. stocks, bonds, bills, the value of a cheque), were
added to the subject matter of conversion. Conversion of the document is
taken as conversion of a chattel equal in value to the face value evidenced
by the document. In Ghana, an even higher inroad has been made into the
rule that only tangible property can form the subject mater of conversion. In
De Wills Archbold v. C.F.A.O.. Hayfron-Benjamin J (as he then was) held
that a musical composition which had not even been reduced into writing
had been converted. The law in this area was further developed in Hartley v.
Ejura Farms?
CONVERSION IN RELATION TO BAILMENTS
A bailee of goods is considered as having sufficient possession of chattels in
his charge to enable him sue. If the bailment is at will the bailor may also
sue. The principles governing this area of the law were discussed in Penfold.
Here the law distinguishes between a voluntary and an involuntary bailee. If
goods are delivered into the possession of a person whom the law
characterises as an involuntary bailee (a person who comes into possession
of a chattel through no act of his own and without his consent), then if that
person lakes reasonable steps to restore the goods to the one he honestly
believes to be the true owner, or an accredited agent of the owner, and if the
goods are as a result of this honest mistake misdelivered to a person other
than the true
owner, the law will absolve the involuntary bailee provided he was not
negligent. But if he disposes of the goods otherwise, he will be liable. Two
cases throw light on this last point. The first is Hiort v. Bott: The plaintiffs
sent the defendant an invoice for barley, which staled that the bailey was
bought by the defendant from the plaintiffs through G as a broker and also a
delivery order which made the barley deliverable to the order of the
consignor or consignee. The defendant had not in fact ordered any barley
from the plaintiffs. G called on the defendant who showed him the
documents and told him it was a mistake. G said that it was, and asked the
defendant to endorse the order to him, for the purpose, as he said, of saving
the expense of obtaining a fresh delivery order. The defendant indorsed the
order to G, who got the barley from the carriers and then absconded, hi an
action for trover for the bailey, the jury found that the defendant had no
intention of appropriating the barley to his own use but indorsed the order
for the purpose
of correcting what he believed to be an error and returning the bailey to the
plaintiff. It was held that trover will lie. The defendant, by indorsing the
order for G, did an unauthorised act and deprived the plaintiff of their
property.
Elvin & Powell v. Plummer Roddis & Co. The plaintiffs were rain-coat
manufacturers. X entered their ware-house and ordered £350 worth of rain-
coats. X asked that the goods be sent to the Brighton branch of the
defendants. X then sent a telegram to this branch which read: "Goods
dispatched to your branch in error. Sending van to collect." He then sent
his accomplice in a van to collect them. The accomplice
handed in a trade card of the plaintiffs. The defendants, after making
reasonable inquiries, gave him the rain-coats. X and his accomplice were
never seen again. The plaintiffs sued on two counts: 1. That the defendants
were bailees and liable because they were negligent; and 2. conversion.
Hawke J rejected both claims because, according to him, in the case of
count one, the defendants had not been negligent. On count two, the
plaintiffs' counsel admitted that no evidence existed that the defendant
intended to deny the plaintiffs' right in the goods or to assert any light
inconsistent with it. But ordinarily this should not absolve the defendant
because, in Hiort v. Bolt, the jury expressly found that the defendant in
signing the order had no intention of appropriating the barley to his own
use. He distinguished Hiort v. Bott from the present case on the grounds that
here the defendants were involuntary bailees (I.B.). So no liability.

SPECIFIC EXAMPLES OF CONVERSION

CONVERSION BY REFUSAL TO SURRENDER ON DEMAND

If a person in possession of the plaintiff's chattel refuses to hand it over on
demand, this constitutes conversion. The defendant, however, must still be
in possession at the time of the demand. The law allows a person to
investigate within reasonable time to ascertain the title of the person
demanding. Therefore withholding for a reasonable time to investigate will
not amount to conversion under this head. Demand and refusal is therefore
only evidence of conversion.

DENIAL OF ACCESS TO PLAINTIFFS' TITLE

Conversion can be committed by denying to a plaintiff the right to have
access to his own chattel. However, the act must constitute an absolute
denial and repudiation of the plaintiffs' rights. The principle can be
illustrated by the decision in Oakley v. Lyster. The plaintiff-respondent, a
demolition contractor, bought and undertook to clear away an aerodrome
which had become useless after the armistice. In consequence, he became
entitled to about 8000 tons of hard core and tar macadam. To clear the stuff
from where it was, he rented a space of three and half acres of land on die
opposite side of the road and there deposited the stuff. He sold a large
portion of it but had still at the material time about 4000 tons left. While his
tenancy of the three and a half acres was still subsisting, the defendant-
appellant bought the freehold of the property on which they were. The
defendant-appellant convinced himself that he had an immediate right to the
area covered by the tenancy as well as the stuff. So he refused to let the
plaintiff take his stuff. The plaintiff sued in conversion and judgment having
been given to him, the defendant appealed. It was held (Scrutton, Greer &
Slesser L.JJ) that the appeal must be dismissed. It was clear to the judges
that the appellant was exercising dominion over the stuff inconsistent with
the rights of the true owner and with the intention of denying the plaintiff's
rights over them.
The above case may ‘be contrasted with England v. Cowley where a
statement that goods arc not to be removed until rent is paid was held by a
majority of the court not to amount to an absolute interference with the
plaintiffs' rights and therefore not conversion. On this point of partial or
absolute denial, see also the decision in Simmons v. Lillystone where
denials were deemed partial and therefore no conversion was committed.
Contrast England v. Cowley with the Ghanaian case of African Drug Co. v.
Kumasi City Council44 In this case the plaintiffs were licensees of a store at
Kumasi market owned by the defendants. Because the plaintiffs were in
arrears of rent, a servant of the defendants locked them out of their store,
thus preventing their access to documents in the store which included an
import licence for drugs. Because of the plaintiffs' failure to gain access to
this licence they were unable to take delivery from the Customs Department
of the drugs and the Department eventually sold them at a public auction as
unclaimed goods. On these facts, Mensa Boison J (as he then was) said:

"The defendants' act of locking out the plaintiffs was found wilful, and
evinced an intention to exercise dominion over whatever chattels were in
the store, by the refusal to hand over the keys initially. The defendants must
suffer the risk that the chattels included [the import license], which by its
peculiar nature may be said to represent the consignment of drugs. I find the
defendants were guilty of conversion of the [import licence.]"

Thus Mensa Boison J 'as he then was) held a non-absolute denial of access
to the plaintiffs' documents to I e conversion.
Wansborough &pnor. v. Maton is an example of a situation in which the
denial of access was absolute. The plaintiffs were tenants of the defendant.
They erected a barn on the land. After the expiration of the tenancy, they
left the land and wanted to take away the bam. The defendants refused
unless they agreed with him on another matter in dispute. Afterwards the
plaintiffs sent people to bring the bam. The defendant was on the premises
at that time; he sent the men away and locked the gates after them. The
plaintiffs then brought the suit for trover. It was held that the defendant was
liable since the bam was not a fixture and could therefore not be considered
as part of the freehold.

Chapter 13

DETINUE

Any legally unjustified detention of a plaintiff's goods constitutes detinue.

The plaintiff would have to prove that he had a right to immediate
possession and that the defendant refused to hand them over on demand.
Thus expressed, it becomes coterminous with the tort of conversion and is
embraced by it. Generally, therefore, whenever C lies, D will also be
available. The difference lies in the fact that, in detinue, even where the
defendant no longer has the goods in his possession at the time of the
demand, he is liable to the plaintiff, unless he can show the loss was
accidental. On this last point, see the case of Houghland v. R.R. Law
(Luxury) Coaches Ltd. It is also a defence in detinue if the defendant can
show that he took possession of the plaintiff's goods on grounds of necessity
see Sorrel v. Paget} and General & Finance Facilities Ltd. v. Cooks Cars.
Also detinue differs from conversion in the areas of remedies as Diplock J
said in General & Finance Facilities Ltd. v. Cooks Cars. Conversion is an
action in personam. The action in detinue is in rem. Conversion is thus for
mere pecuniary compensation but detinue may afford: (a) the value of the
thing as assessed; (b) specific restitution or else value plus damages for its
retention; and (c) specific restitution and damages for its detention. Detinue
also entitles the plaintiff to the issue of a writ for delivery. Relief (a) is the
usual remedy, for relief (b).
In conversion the value of the goods is assessed as at the time of the
Conversion. But, in detinue, it is assessed as at the time of the judgment.
This has a great commercial value; for the market price of the goods may be
higher at the time of judgment. Cf Tabury v. GCB where damage to fish that
had been unlawfully detained was assessed as at the time of detention, not
of judgment. The decision here was given clearly per incuriam.

The Supreme Court of Ghana (per Hayfron - Benjamin) in STANDARD

CHARTERED BANK (GHANA) LTD. v. NELSON, [1998-1999] SC GLR
810 at 822 brought out the difference between CONVERSION and
DETINUE as follows:

"We think the confusion ...arises from the difficulty of counsel and the
judges in appreciating the thin but clear line of distinction between the torts
of detinue and conversion. In the former, the action is for restitution
intergrun, and damages may be exacted on account of the special quality of
the chattel. In the latter, the dealing with the chattel is unlawful and the
action is for the recovery of the chattel or its value together with damages
for consequential loss where so warranted or indicated".

This distinction detennines the measure of damages between the two torts.
Date-Bah, JSC put it in the YUNGDONG INDUSTRIES case thus:
'the normal measure of damages conversion is the value of the goods
converted, together with any consequential loss which is not remote. In
contrast, the normal measure of damages for detinue, which lays emphasis
on the return of the goods is the loss arising through the detention of the
goods, in addition to the value of the goods, where the court has not ordered
their return'
Advantage of detinue over conversion Advantage of detinue over
conversion may be summarised thus:

(i) The plaintiff can sue in detinue, even though the goods are no longer in
the
possession of defendant;
(ii) the plaintiff can obtain specific restitution of his goods in detinue
(important when, the article is of symbolic significance);
(iii)the plaintiff is entitled to the value of the goods as at the time of
judgment (can take account of inflation).
(iv)damage for loss of goods can also be claimed by the plaintiff separately
from the value of the goods.

Advantage of conversion over detinue

Where the good? depreciate in value, it will be wise to sue in conversion so
as to claim value as at the date of the conversion.

Chapter 14

DEFENCES TO INTENTIONAL TORTS TO PERSON AND PROPERTY

Mistake and inevitable accident
1. Inevitable accident
This defence refers to actions where the defendant did not act either
intentionally or negligently. Sir Frederic Pollock said of inevitable
accident:1 "An accident not avoidable by any such precautions as a
reasonable man doing such an act there and then could be expected to take."
The onus of proving that the defendant acted intentionally or negligently is
today on the plaintiff. In Fowler v. Learning: in an action for damages for
trespass to the person, the plaintiff alleged simply "that the defendant shot
the plaintiff and that by reason thereof the plaintiff sustained personal
injuries and suffered loss and damage. The defendant pleaded that the
statement of claim was bad in law and disclosed no cause of action against
him on the ground that it did not allege that the said shooting was
intentional or negligent. The issue for detenination was on whom fell the
"onus of proof of the negligent nature of the shooting; the plaintiff or the
defendant? Held:
No trespass if the injury to the plaintiff, though the direct consequence of
the act of the defendant, was caused unintentionally and without negligence.
Onus of proving negligence, for unintentional trespass, lies on the plaintiff.
So the plaintiff must allege and prove either that the defendant acted
intentionally or negligently or plead facts which show that he acted
negligently. Where an occurrence could not have been avoided by the
exercise of reasonable care on the part of the defendant, i.e. inevitable, then
there is no trespass, if not done intentionally: see Letang v. Cooper.3 So that
inevitable accident is not a defence as such but rather than an important
element of trespass is missing, example: A hits you with his car because of a
defect in the steering wheel, which no amount of care would have
prevented, he will not be liable; for, in this case, he neither acted
intentionally nor could he have avoided doing so by taking precaution.
2. Consent
As a general proposition of law, anyone who consents to an act cannot
complain of trespass: volenti non fit injuria. Consent may be given
expressly by words or inferred from conduct, e.g. a boxer cannot complain
when he is hit in the ring. Also a footballer cannot complain if he is kicked
in a match; but if the opponent does something completely out of the game,
e.g. going out for the eye, no consent can be said to have been given to that.
The consent which will be a defence must relate to the act complained of. It
must be freely given. In the case of children, consent by parents or
guardians will be enough. Consent may be vitiated by fraud, where the fraud
relates to the real act of the defendant. But this is not so where the fraud
merely relates to a collateral aspect of the defendant's act.
The decision in Hegarty v. Shine illustrates this point.4 In this case, the
plaintiff and the defendant had been living for two years in a state of
concubinage and the defendant being infected with venereal disease, of
which the plaintiff was ignorant, had sex with and infected her with the
venereal disease. In an action by the female plaintiff for: (a) breach of
promise of marriage; and (b) assault of the plaintiff and infecting her with
venereal disease, the trial judge directed the jury that:
"As a matter of law, an assault implied an act of violence, committed upon a
person against his or her will and that as a general rule, when the person
consented to the act, there was no assault; but that if the consent was
obtained by the fraud of the party committing the act, the fraud vitiated the
consent, and the act became, in view of the law an assault, and that therefore
if the defendant knowing that he had venereal disease, and that the probable
and natural effect of his having connection with the plaintiff would be to
communicate to her venereal disease, fraudulently concealed from her his
condition, in order to induce, and did thereby induce her to have connection
with him; and if but for that fraud she would not have consented to have had
such connection; and if he had with her the connection so procured and
thereby communicated to her such venereal disease, he had committed an
assault, and one for which they might on the evidence award substantial
damages."
It was held that this charge amounted to a misdirection. Sexual intercourse
with the consent of the female cannot be an assault. There was no deceit as
to the nature of the act to be done, but a lengthened cohabitation of the
parties, and deliberate consent to the act or acts out of which the cause of
action had arisen. On the facts, the plaintiff consented to have sexual
intercourse with the defendant, who then, but without her knowledge, was
affected with venereal disease. In law, the consent proved extends to both
the act and its consequence. Per Palles, C.B.
"An action is brought for trespass to the person. That is denied and
accordingly the plaintiff must show that an assault was committed. The
evidence proves that the act was done by the consent of the plaintiff and
therefore that she was not assaulted. In order to avoid the consent, she relies
upon fraud. She asks the court to relieve her from the consequences of a
consent which she in fact gave. This is not open to her, because if the
contract be an immoral one, neither party can be allowed to enter into the
consideration for it, whether to sustain the cause of action or to avoid the
consent..."
Cf. R. v. Williams: In this case, the appellant was the choirmaster at a
Presbyterian Church. It was arranged that he should teach two girls, (one
sixteen years, the other nineteen) singing and voice production. On two
occasions when he gave lessons he had sexual intercourse with, the sixteen
year girl and, on two other occasions, committed indecent assault on the
nineteen year old. He was charged with rape, convicted and he appealed
arguing that he ought not to have been charged on the evidence with rape
.The evidence established that on the first day he told the sixteen she was
not singing as she should and was not getting her notes properly and told her
to lie down on a settee
He then removed a portion of her clothing and placed upon the lower part of
her body an instrument which was defective anyway and could not have
been affected by the breathing. He asked the girl to take a deep breath
thrice. He looked at the instrument and purported to write down something
in a book. He then dropped on her and proceeded to have sex with her. She
asked: "What are you doing?" He said:

"It is quite alright, do not worry. I am going to make an air passage. This is
my
method of training. Your breathing is not quite right and I have to make an
air
passage to make it right. Your parents know all about it, it has all been
arranged: before God, Vera, it is quite alright I will not do you any harm."
'
With the second girl, on the same pretext, he fingered her saying he was
making an opening for the air to pass. The girl submitted, believing what he
told her. She did not know what he did was wrong; nor did she know he was
sexing her. Held dismissing the appeal, that the consent was fraudulently
obtained. So no consent
Consent obtained by show of authority, threat of force or actual application
of force is not consent in law, e.g. a policeman or woman who tells plaintiff
to follow him or /her to the station, has no defence, if plaintiff goes because
of show of authority
The authority is Latter v. Braddell.The plaintiff was a housemaid of Mrs B
On returning from holidays, Mrs. B accepted the evidence of the
chairwoman that the plaintiff was pregnant. The plaintiff denied that she
was. Mrs. B sent for the doctor to come and examine her. The doctor asked
her to undress. She protested and wept but took off her clothes and
submitted to the examination. She was not pregnant but was dismissed all
the same. She sued Mr. and Mrs. B and the doctor. At the trial the judge
withdrew from the jury the case against the Bs and the jury found in favour
of the doctor The plaintiff obtained a rule nisi for a new trial. In the
Common Pleas Division, Lindley J upheld his own trial decision, Lopes J
dissenting.
On appeal to the Court of Appeal, the Court of Appeal unanimously upheld
the decision of Lindley J (i.e. plaintiff lost). Bramwell, L.J., said:

"Very likely plaintiff thought defendants had a right to have her examined-
but the truth is, she submitted to it, and it is impossible to say the jury were
wrong in finding that she submitted. She may have submitted under an
erroneous notion of law, but it was not through fear of violence..."

The decision in this case is questionable because the impact of the

employed-employee relationship on the maid's supposed consent does not
appear to have been given sufficient consideration.
If the plaintiff is drunk or otherwise incapable of giving consent, he cannot
give consent.
As noted earlier, consent must relate to the act complained of, e.g. Beatty v.
lllingworth. The plaintiff who was being operated on for removal of a
diseased ovary, instructed the defendant surgeon: "If you find both ovaries
diseased you must remove neither," to which he replied, as she was going
under the anaesthetic, "You may be sure I shall not remove anything I can
help." He removed both ovaries, which were diseased, whereupon her
fiancée refused to marry her. Hawkins, J., directed the jury that they were
still at liberty to infer her tacit consent, and they accordingly found for the
defendant.
This case only shows the law's willingness to be more liberal with doctors to
enable them do what they consider best for patients. However as St.
George's NHS Trust v. S shows, it is a trespass to operate upon a pregnant
woman who refuses to allow her child to be born by Caesarean section. And
in Airedale NHS Trust v. Bland Lord Keith stated that instructions that a
person, brought to a hospital unconscious, does not want a surgical
operation would be effective unless it was thought not to cover the
particular situation or that, if confronted with the reality of the situation, he
or she would change his or her mind. The Court of Appeal stated:

"Where the patient has given an advance direction before becoming

incapable, treatment and care should normally be subject to the advance
directive. However, if there is reason to doubt the reliability of the advance
direction (e.g. it might sensibly be thought not to apply to the circumstances
which have arisen) then an application for a declaration may be made."

3. Self defence
For a defendant to succeed under this defence he must show that he
committed the trespass in order to: (1) defend himself; (2) that in the
circumstances it was reasonable for him to do so; and (3) that he used
reasonable force.
In Codd v. Cabe: Lord Bramwell held that no more force than was
reasonable was used, and therefore there was no trespass. But this is no
licence for revenge. If after the first act of violence against a defendant,
there is no reasonable threat of further violence, a trespass will be
actionable.
Cockroft v. Smith: The plaintiff sued for trespass for assault, battery, and
mayhem. The defendant pleaded self defence. It was admitted to be a good
defence. But it was argued that the act which was claimed to be in self-
defence must not be disproportional to the initial assault, e.g. for every
assault, it is not reasonable to bang a man with a cudgel. The facts were that
the clerk of a court sued an attorney for biting off his forefinger in a scuffle
in court. The evidence showed that the plaintiff first tilled the form on
which the defendant sat. Then second, the plaintiff ran his finger towards
defendant's eye, who bit it off. Holt C.J. held that, in itself, it was not a
defence that the
plaintiff first pointed his finger towards the defendant's eyes, for a man must
not "in case of a small assault, give a violent or unreasonable return."
What is reasonable force is a question of fact to be decided in each case.
E.g. Street's example:

A pins Miss B to the wall and repeatedly kisses her against her will, and the
only means by which Miss B can compel A to desist is by lacerating his
wrist with scissors. Does she have any defence to an action of trespass by
A?

4. Defence of the person of another

A servant may justify a battery in defence of his master and vice versa. The
illustrative case is Barfoot v. Reynolds which was an action of trespass,
assault and battery against Reynolds and Westwood. Reynolds in his
defence pleaded assault on his son, while Westwood pleaded that he was a
servant to Reynolds and that the plaintiff having assaulted his master in his
presence, he, in defence of his master struck the plaintiff. The plea was held
ill, for the assault on the master might be over and the servant cannot strike
by way of revenge but in order to prevent injury. The right way of pleading
is that the plaintiff would have beaten the master if the servant had not
intervened.
The second case Seaman v. Cuppledick was an action for assault and
battery. The defendant justified no action on the grounds that he had acted
in defence of his servant; that the plaintiff assaulted his servant and would
have beaten him but for his intervention. The court held:
"A man may use force in defence of his goods, if another will take them;
and so if a man will strike your cattle, you may justify in defence of them;
and so a man may defend his son or servant but he cannot break the peace
for them: but if another does assault the servant, the master may defend him
and strike the other, if he will not let him alone."

Cf. Leward v. Basely, an action for assault and battery on the wife of the
plaintiff by the defendant husband and wife. The defendant pleaded that the
plaintiff first assaulted his wife. The plaintiff replied that the defendant was
going to wound her husband. To this the defendant demurred. The court
held that a wife might justify an assault in defence of her husband. So might
a servant of his master but not a master of his servant because he might have
an action per quod servitium amisit. If the defendant was holding his hand
to strike the husband, the wife might make an assault to prevent the blow.
These cases seem to limit the right to use force to members of one's family.
But there is no reason why we should read them so narrowly. A total
stranger can also be defended against felonious acts. We may support this
point with the case of Handcock v. Baker.16 Here the plaintiff brought
action for trespass to his house and assault on him as well as false
imprisonment. The defendants averred that they entered the house and took
hold of the plaintiff to prevent him from murdering his wife. It was held that
this was justification enough, i.e. good defence.

DEFENCE OF ONE'S PROPERTY

A person may use reasonable force to defend land or chattel in his
possession against any person threatening to commit or committing trespass
to the property. But if the threat is not imminent or has passed, force is not
justified. The principle is illustrated by Creswell v. Sirl. In that case the
plaintiff's dog and another dog chased sheep in a field at night, and as a
consequence, several of the sheep aborted. The defendant, to whose father
the sheep belonged, went into the field and thinking the dogs were fierce
and wild and that it would not be safe to catch hold of them, shot and killed
the plaintiffs dog, when it had left the sheep and was coming towards him.
The plaintiff sued for trespass to the dog. The county court held that the
defendant's defence failed because die dog had stopped attacking the sheep
at the time he shot it. The defendant appealed. The appellate court held that
the test applied by the county court judge was too narrow. The proper test,
per Scott L.J. should be:
"The onus of proof is on the defendant to justify the preventive measure of
shooting the dogs. He has, by proof, to establish two propositions, but each
proposition may be established in either of two ways:
(1) That at the time of shooting, the dog was either
a) actually attacking the animals in question, or
b) if left at large would renew the attack so that the animals would be left
presently subject to real and imminent danger unless renewal was
prevented.
(2) That either —
a) there was in fact no practical means, other than shooting, of stopping
the present attack or preventing such renewal, or
b) that the defendant, having regard to all the circumstances in which he
found himself, acted reasonably in regarding the shooting as necessary for
the protection of the animals against attack or renewed attack."
Bird v. Holdbrook is a further illustration of the principle. In this case, the
defendant, for the protection of his garden of flower-roots and tulips, some
of which had been stolen, set a spring gun, without notice, in a walled
garden, at a distance from his house, with the express intention of catching
the thief. The plaintiff who climbed over the wall in pursuit of a stray fowl
was injured. It was held that the defendant was liable in damages because
the method used to protect the garden, i.e. the spring gun, in the
circumstances was not reasonable.
Clearly then the use of force to protect interests in property is harder to
justify than use of force in self defence. So, if a guy is trespassing on your
land, you are not entitled to shoot him with an arrow, as a way of defending
your land.

NECESSITY
One may justify a trespass on the grounds of necessity. Our authority is
Mouse's case. ' It was an action for trespass brought by Mouse for a casket
and a hundred and thirteen pounds. The facts were that the ferryman of
Gravesend took 47 passengers into his barge to London, among whom was
Mouse. There was a big storm which threatened both passengers and
luggage. So the luggage were thrown into the water to save the men. It was
held:
In case of necessity, for the saving of the lives of passengers, it was lawful
for the defendant, being a passenger, to cast the casket of the plaintiff out of
the barge with the other things in it.
If the ferryman should overload the ferry, it is a valid defence in such
circumstances as above for any passenger to cast things out of the barge and
the ferryman will be liable to the luggage owners for the loss of their goods
for it was his fault. But where the danger is the result of an act of God, e.g.
storm, then everyone ought to bear his loss.

ABATEMENT OF NUISANCE
It is a defence to an action in trespass that it was to abate a nuisance: see
Lemnion v. Webb.21 In that case it was said that the owner of land which is
overhung by trees glowing on his neighbour's land is entitled, without
notice, if he does not trespass on his neighbour's land, to cut the branches so
far as they overhang, though they have done so for (a long time) more than
twenty years. The facts were that the appellant and the respondent were
adjoining landowners. On the appellant's land near the boundary were
several large old trees, whose branches overhung the respondent's land and
had done so for more than 20 years. The respondent, without giving notice
and without trespassing on the appellant's land, cut off a number of branches
to the boundary line. The appellant sued him, inter alia, for damages for
trespass. It was held per Lord Macnaghten:"
"I think it is clear that a man is not bound to permit a neighbour's tree to
overhang the surface of his land, however long the space above may have
been interfered with by the growth of the tree. Nor can it, I think, be
doubled that, if he can get rid of the interference or encroachment, without
committing a trespass or entering upon the land of his neighbour, he may do
so whenever he pleases, and that no notice or previous communication is
required by law."
DISCIPLINE
Trespass might also be justified on the grounds that it was to discipline the
person complaining or on whose behalf the complaint is lodged provided tire
force used is reasonable. Ash v. Ash, was an action for assault, battery and
false imprisonment. According to the facts Lady Ash pretending that her
daughter, the plaintiff, was troubled in mind, brought an apothecay to give
her physick; she was bound and would have been compelled to lake physick
and was confined for about two or three hours. The jury gave her £2000
damages. On a motion for a new trial because of the excessiveness of the
damages, the motion was granted. In other words, while it was agreed that
trespass may be justified on grounds of discipline, on this occasion the
defendant would fail because excessive force was used. Also Ryan v.
Fildes& Or, the plaintiff, a schoolboy of 10 years, attending a non-provided
school was by reason of indiscipline boxed on the ear by his schoolmistress.
As a result of the blow which was found not to have been a violent one, the
boy became deaf in one ear. The class in which the boy was working at the
time of the incident consisted of 46 boys. He sued for damages, for assault,
i.e. battery. It was held, per Tindal J, that he must succeed against Fildes.
What she did exceeded reasonable and proper punishment.
"The blow struck was moderate in the sense that it was not a violent blow,
but, as punishment, it was not moderate punishment, because not proper way
of punishing a child to strike it on the head or the ear.
"It appeals ... by the Law of England, when a parent sends his child to
school, he delegates to teachers at the school the power to inflict reasonable
and moderate corporal punishment when required, in the same way as he, as
parent, would have power to inflict moderate and reasonable corporal
punishment in a proper case and that he delegates to the teacher the taking of
such steps as arc necessary to maintain discipline with regard to the child
committed to the teacher's care. ..."
Finally, we may look at Hook v. Cunard. Here, the plaintiff sued for
damages for false imprisonment and indecent assault. It seemed that he was
confined on the allegations of the daughter of a passenger on a ship. The
evidence did not suggest that the captain of the ship believed in the
allegation but confined the plaintiff to please the passenger and to avoid
unwelcome publicity. It was held, per Slade J., that the master of a merchant
ship is justified at common law in arresting and confining in a reasonable
manner and for a reasonable lime any sailor or other person on board his
ship only if he has reasonable cause to believe, and if he docs in fact believe,
that the arrest and confinement arc necessary for the preservation of order or
discipline, or for the safety of the vessel or persons or property on board.
This ruling, it must be noted, will apply equally to the driver of a vehicle or
the pilot (captain) of an aircraft.
Lane v. Holloway. ' Is contributory negligence a defence to trespass? Yes, in
Barnes v. Nayer
Chapter 15

NUISANCE
Nuisance may take one of two forms, a public or private nuisance. Public
nuisance protects public health, decency, convenience and safety. This in
reality is a crime and is taken care of in sections 285-298 of the Criminal
Code, 1960 (Act 29). It covers matters such as: (a) selling unwholesome
food; (b) hindering burials; (c) carrying on a noxious trade; (d) drunken,
riotous or disorderly conduct; (e) throwing rubbish in the streets; and (f)
displaying one's naked body in public.
What is public nuisance was explained in A-G v. P.Y.A. Quarries Ltd.1 hi
this case, the quarry owners so conducted their operations that neighbouring
householders were discomfited by vibrations from explosions and by the
dust which emanated from the quarry in dry weather. There was evidence
that nuisance from the vibration and dust could be avoided by the exercise
of proper care. It was held that the vibrations and dust were a public
nuisance and an injunction had been properly granted to restrain the quany
owners from carrying on their business in such a manner as to occasion a
nuisance to her majesty's subjects by dust or by vibration. Here Lord
Denning said that: "public nuisance must be referable to the generality of
Her Majesty's subjects. So widespread in its range, so indiscriminate in its
effects .... that it becomes the responsibility of the whole community." So an
act becomes public nuisance when its effect is on the public as a whole
rather than on one individual.
RELEVANCE IN THE LAW OF TORTS
Public nuisance, may lend itself to an action in torts by an individual only if
that individual can show that he has suffered damage over and above that
suffered by the public, e.g. if you go and buy food and contract cholera, you
can show you have suffered damage over and above the public and so you
must be able to claim. In Southport Corpn. v. Esso Petroleum the
defendants' tanker ran aground in the Ribble estuary and to save life aboard,
the master lightened the ship by jettisoning a large quantity of oil This oil
was carried onto the plaintiffs' beach and they spent a great deal of money to
clear it. The trial judge gave judgment in favour of the defendants on the
ground that the plaintiffs had failed to prove negligence. This was approved
on appeal to the House of Lords. In the House of Lords, Lord Denning said
that the term public nuisance covers a multitude of sins, great and small.
Public nuisance is not dependent on user of land. See also Halsey v. Esso
Petroleum;3 Tate & Lyle v. Greater London Council.
Both private and public nuisance are based on annoyance and
inconvenience. In other words, the constituent elements are conceptually the
same. The difference between them lies in the degree and range of exposure.

PRIVATE NUISANCE
Private nuisance lies in general for indirect non-trespassory interference
being an action on the case. A defendant is guilty of private nuisance, if he
does an unreasonable act which either (a) indirectly causes physical injury
to land; or; (b) substantially interferes with another's use or enjoyment of his
land or of an interest in land or both. The crux of nuisance then is
unreasonableness of conduct. Consequently, problems in nuisance really
turn on reasonableness. In determining the reasonableness, the courts look at
both the defendant's conduct and its effect on the plaintiff. Note however
that when interference is alleged with a plaintiffs enjoyment, the
surrounding circumstances are relevant, but not so relevant when the alleged
interference is with material injury to property.
Some common forms of private nuisance are: (i) noise — excessive tolling
of church bells; (2) pestilential smells; (3) vibrations; and (4) escaping
fumes from factories. Private nuisance represents a balancing of conflicting
interests, (e.g. taxi horns, radio music), and the courts are principally
concerned with the mutual adjustment of rights. Living in close
communities as we do nowadays, one has to put up with a reasonable degree
of nuisance. As was said in Bamford v. Turnley, per Baron Bramwell:
"Those acts necessary for the common and ordinary use and occupation of
land and houses may be done, if done reasonably without risking an action
in nuisance e.g. burning weeds, emptying cesspools and making of noises
during repairs." And so in Sedleigh-Denfield v. O'Callagan the boundary
between the appellant's premises and those of the respondents was a hedge
and a ditch, both of which belonged to the respondents. Without informing
the respondents, a trespasser laid a pipe in the ditch and some three years
later, when this pipe got blocked, the appellant's garden was flooded. It
appeared that one of the respondents' servants had cleared out the ditch
twice yearly. The appellant claimed damages in nuisance. It was held that he
would succeed because the respondents who knew or ought to have known
of the existence of the nuisance, permitted it to continue without taking
reasonably prompt and efficient action to abate it. In that case, the flooding
was considered as going beyond what the appellants could reasonably be
expected to endure and so it was nuisance.
In determining whether an act constitutes private nuisance, the courts take
certain factors into account. We shall consider these factors seriatim.

(a) The purpose of the defendant's conduct — mental state

If the defendant's primary object in doing an act is to injure his neighbour,
then that conduct is in law unreasonable. Thus in Christie v. Davey, the
parties lived in semi-detached houses. The plaintiff gave music lessons and
held musical parties in his house, which annoyed the defendant
considerably. Maliciously and for the purpose of vexing and annoying the
plaintiff, the defendant blew whistles, knocked on trays or boards,
hammered, shrieked and shouted, when lessons or parties were in progress
in the plaintiff's house. It was held that the interference could be restrained
by injunction, but it would be otherwise, if both parties had been perfectly
innocent, i.e. if the interference had been merely coincidental. This means if
a defendant does what he is reasonably expected to do, even if maliciously,
he will not be liable, even if his conduct injures his neighbour.
Compare the above case with Bradford Corporation v. Pickles.8 Here the
appellants owned water works and the respondent owned land from which
water flowed naturally on to the ground from which the appellants enjoyed a
valuable supply of water. The defendant commenced operations on his land,
which had the effect of discolouring and diminishing the appellant's water
supply and they sought an injunction to restrain his harmful activities which,
they alleged, were actuated by malice and with a view to inducing them to
buy the land. It was held that the injunction would not be granted because
the respondent's action was lawful and no matter how ill his motive might
be he had a right to act as he did. See also to the same effect: Hollywood
Silver Fox Farm v. Emmett.

(b) Suitability of the locality

The law realises that it is governmental policy to divide up land for various
uses. The courts therefore consider whether a defendant is carrying out his
activity in a place suitable or designated for it. So it may well be a nuisance
to set up a factory in a residential area or set up a stable there or use
residential area for prostitution as in Thompson-Schwab v. Costaki. In that
case, the plaintiff lived in a good residential street in the West End of
London and the defendants used a home in the same street for the purposes
of prostitution. It was held that this was prima facie evidence of nuisance, as
having regard to the usages of civilised society and to the character of the
neighbourhood, the defendant's activities amounted to an unreasonable
interference with the comfortable and convenient enjoyment of the
plaintiff's residence and an interlocutory injunction was granted to restrain
it. Or using premises as a sex shop, see Laws v. Florinplace Ltd. On
persistent unwanted phone calls see Khorasandjin v. Bush. Aidoo v. Adjei
held that it is nuisance to operate a chop bar near a residential area! In Ball
v. Ray14 it was held that keeping horses in a residential area was actionable
nuisance. But, in Moy v. Stoop, a day nursery was set up in a residential
area with its children weeping. It was held that, prima facie, the crying of
the children was not actionable, but if it can be proved that the children cry
as a result of neglect, then it may be actionable nuisance.
What about cockerels crowing at ungodly hours? This question is important
because of the keeping of poultry in homes these days. In Leeman v.
Montagu the plaintiff bought a house in an area which was partly rural, but
largely residential. In an orchard which was about 100 yards from the house,
the defendant kept some 750 cockerels which were in the habit of crowing
from 2 a.m. until 7 or 8 a.m. This noise made it impossible for the plaintiff
to sleep. It was held, that a nuisance had been proved and the plaintiff was
entitled to an injunction to restrain the defendant from carrying on the
business of poultry breeder in this manner. On the question of the
importance of sleep, see also Halsey v. Esso Petroleum. Again, in Sturges v.
Bridgman, a confectioner and a physician occupied adjoining premises. In
connection with his business for more than 20 years, the confectioner used
two large pestles and mortars and the noise and vibrations did not seem to
the physician to be a nuisance until he built a consulting room at the end of
his garden against the wall of the confectioner's kitchen in which the pestles
and mortars were operated. The physician sought an injunction to restrain
the use of the pestles and mortars in such a manner as to cause him
annoyance. It was held that he would succeed. The confectioner could not
claim that he was protected by prescription, since until the consulting room
was built there had been no actionable nuisance.
This decision may also be explained in terms of the unarticulated value the
court gave to the physician's service to society as compared to that of the
confectioner.

Nature of use to which defendant puts land

Generally, natural user is not per se conclusive as to reasonable use (Note
that, unlike Rylands v. Fletcher the defendant can put his land to non-natural
use so long as his conduct is reasonable). Thus in Matania v. National
Provincial Bank, temporary noise and dust caused by alterations being made
to a building were held to be a nuisance since the interference was
substantial. This case also shows that the duration of the unreasonable
conduct is not conclusive. It could be nuisance even if only temporary.
Where conduct is inevitable but could be mitigated, it will be held to be
unreasonable if not mitigated. In C.F.C. Construction Ltd .v A.T.C.C., the
plaintiff brought an action to restrain the defendants or their agents from
continuing or repeating nuisance by dumping garbage and refuse which
emitted pestilential smells in a quarry adjoining their properties. Justice
Crabbe found, as a fact, that the garbage dumped emitted pestilential smells
which amounted to actionable nuisance. In Abotchie v. Saad the suitability
of the locality for the defendant's trade was considered by justice Crabbe as
of great importance. The plaintiffs complained that the defendant installed
vibrating machine emitting offensive smells. When the plaintiff complained,
the machine was removed only to be reinstalled later and the defendant then
the defendant turned deaf ears to all the plaintiffs’ complaints. The court
held that, as the defendant had not proved or adduced evidence to show the
suitability of the locality for his activity he was liable and injunction was
granted.

Authorised Acts — Statutory Duties

Can nuisance lie against one under a statutory duty? The law is that where
one operates under a statute one must use reasonable care. Therefore
theoretically, a person operating under a statute, may be liable in nuisance.
A case in points is Manchester Corpn v. Farmworth. There is a farmer, the
respondent ,sought damages and injunction against the appellants on the
ground of nuisance. The respondent alleged that poisonous fumes were
emitted from the chimneys of generating stations erected by the appellants
in pursuance of powers conferred by statute. It was held that the appeal will
be decided in favour of the respondent as the appellant has not shown that
they have used all reasonable diligence in preventing their generating station
from creating a nuisance. Thus it is clear that the common law does not
override the statute . It simply requires that for a person discharging a a
statutory duty to escape liability, the person must prove that he or she has
carried out the task reasonably.

Nature of the Damage.

As Lord Reid said in Wagon Mound (No.2), recovery of damages in private
nuisance depends on foreseeability by the defendant of the relevant type of
damage. Being an action on the case and not a trespass, proof of damage is
necessary. Damage may fall in one or other or both of the following
categories: a) it may be material injury to property:
b) personal discomfort or inconvenience . What is the distinction between
sensible material interference with the plaintiff’s property and personal
discomfort or inconvenience? The distinction is discussed hereafter.
a) In St. Helen’s Smelting Co. v. Tipping the plaintiff bought an estate
consist6ing of about 13200 acres near to the +defendant’s copper smelting
works . The vapour from the works proved injurious to the plaintiff trees
and crops and he claimed to be entitled to damage . It was held he would
succeed . That the jury was correctly directed that an actionable injurY was
one producing sensible discomfort and that every man unless enjoying rights
obtained by prescription or agreement was bound to use his property in such
a way as not to injure that of his neighbour . The law was not concerned
with trifling inconveniences and everything had to be considered from a
reasonable point of view. Here suitability of locality is held to be defence if
there is proof of sensible injury to property.e locality is not relevant factor
where property damage is concerned. See also the Canadian case of Schenck
v. Province of Ontario.

The basic principles then are:

a) Proof of sensible damage to property;
b) injury must be substantial; and
c) the injury must have diminished the value of the property.

If (c) is proved, it is irrelevant to plead suitability of the locality. As to the

meaning of material injury the courts have not decided whether the test is
scientific or ordinarily by reference to the custom of the trade, but see
Hunter v. Canary Wharf Property is not defined either. In practice, however,
the courts consider the suitability of the locality relevant: see Pullback
Colliery v. Woodman per Erie Lorebury.

(b) Substantial interference with enjoyment (Personal discomfort or

inconvenience)
Where the complaint is in respect of personal discomfort, then such
interference must be substantial. The plaintiff, however, need not prove
actual injury to health; in fact, the loss of one night's sleep is sufficient.
However, it is not nuisance merely to operate a power station near a church.
So in Heath v. Brighton Corpn. the plaintiffs, the incumbent and trustees of
a church, sought an injunction to restrain the alleged nuisance caused by the
defendant's electricity works which were in the immediate vicinity of the
church. It was not alleged that die low hum or noise of the machinery had
led to a diminution of the congregation; the only person who was personally
annoyed was the incumbent. But he was not prevented from preaching or
conducting the accustomed services. It was held the plaintiffs had not shown
a sufficiently serious annoyance to entitle them to the injunction which they
claimed.
Interference may be substantial even though temporary: see Matania v. Nat.
Provincial Bank. Here dust and temporary noise were held to be a nuisance.
See also De Keyser's Royal Hotel Ltd. v. Spicer Bros. Ltd.
Under this head of damage the courts hold the suitability of the locality as
important. Nowadays, the courts are developing a doctrine whereby a
defendant guilty of a situation likely to cause injury is likely to answer in
nuisance. In Bolton v. Stone during a cricket match, a batsman drove a
ball out of the ground and it hit and injured the plaintiff. The ball traveled
nearly a 100 yards and cleared a protective fence which was, in effect, 17 ft.
above the cricket pitch and 78 yards from the striker. There was evidence that
the ball had been hit out of the ground on some six occasions during the last
30 years. It was held the plaintiff was not entitled to damages cither in
negligence or nuisance as the probability of such an injury would not be
anticipated by a reasonable man.

Who can sue in nuisance?

The law is that one who has proprietary or other interest in the land may sue.
The owner can sue, if he has possession as well as the tenant. However, a
reversioner can sue only if he can show that his proprietary interest in the
reversion has been permanently interfered with. It is doubtful though if a
person who is merely in occupation can sue. In Malone v. Laskey,32 the
defendants let a house to a tenant who sub-let it to a company, whose manager
resided on the premises with his wife the plaintiff. The defendants were not
liable to do repairs to the house, but, following complaints to the defendants,
they sent two men to put an iron bracket underneath a water tank in the
lavatory. Three months later, due to vibration from machinery in the
defendant's premises adjoining the house, the bracket fell upon and injured the
plaintiff. It was held that the plaintiff was without a remedy. Here the plaintiff
failed because she was in occupation but had no interest in the land.
However, in Moss v. Christchurch Rural Council,34 a spark flew from the
defendant's steamroller (as it was at the material time it constituted a nuisance)
and the resulting fire destroyed the plaintiff's cottage which was let to a
weekly tenant. It was held that the plaintiff could recover the difference
between the money value of his interest in the property before and after the
fire, not the cost of rebuilding. It must be noted that in the above case title was
not discussed.

Who can be sued?

Generally, it is the one (although he may have given up possession) who
commits the nuisance, even if done through servants or agents. He is liable for
the acts of independent contractors only if the act done is one which, in its
very nature, involves a special danger of the nuisance being complained of.
In Bower v. Peate33 the parties owned adjoining houses and the defendant
employed a contractor to pull down his and rebuild it. The contractor failed to
provide sufficient support during the excavation of the foundations and the
plaintiff's house was damaged. Cockbum C.J. laid down a test for this. His test
has been criticised as being too wide. The occupier liable for nuisance by the
independent contractor if from the instructions he gives, a nuisance was likely
to occur.
Acts of trespassers (failure to remedy)
The House of Lords settled this in Sedleigh-Denfield v. O'Callaghan.'' The
rationale here is that an occupier of land continues a nuisance if, with
knowledge or presumed knowledge of its existence, he fails to take steps to
bring it to an end, when he has ample time for doing so and adopts it if he
makes use of the structure causing a nuisance. It was held per Moulton L.J. in
British Road Services v. Slater, that a branch of a tree on a land by the road
was a continuing nuisance although the defendants were absolved on the
grounds that the defendants having inherited the nuisance were not liable for
the consequences of failing to remedy it until they were aware that it was a
nuisance or with ordinary and reasonable care, should have become so aware.
In Tarry v. Ashton, the defendant was in occupation of a house from the front
of which a heavy lamp projected over the pavement. As the lamp was
becoming dangerous, the defendant employed an independent contractor to
repair it. Nevertheless, as a result of the contractor's negligence, the lamp fell
down and injured die plaintiff. It was held that the plaintiff was entitled to
damages as the defendant was in breach of his duty to make the lamp
reasonably safe.
Prima facie therefore the defendant is not liable if he did not create the
nuisance. But, if, in entering the premises, he knew or ought to have known of
it, then he is liable. This applies to patent and latent nuisances. But, even
though a nuisance is patent to the eye, when a landlord enters the premises, he
will not be liable if it can be shown that no reasonable man would have
considered it as a nuisance.

Personal injuries
These are recoverable in respect of public nuisance. Private nuisance has no
authority, but, in principle, where there is damage to the person as well as
property, then such consequential damage ought to be recoverable.

Defences to nuisance
Prescription: This lies where a defendant can show that he has acquired a right
to commit the nuisance. To acquire this rights he must have committed it for at
least 20 years before the action; he must have done it openly, without a show
of force, and without the plaintiff's permission: the maxim is "nee vi, nee
clam, nec precario." However this defence is not available in respect of public
nuisance.

Consent: Must not be induced by fraud etc.: see Kiddle v. City Business
Properties Ltd..

Statutory authority: (a complete defence) This must be done reasonably

though: see Northwestern Water Bd. v. Dept. of Transport;'10 if a statute
authorised an activity, then the defendant will not be answerable for inevitable
interference. But it is for the defendant to prove inevitability.
hi Haley v. London Electricity Board! the appellant a blind man, on his way to
work, tripped over a hammer with a long handle which the respondents had
leaned against a railing to protect pedestrians from an excavation which they
had made. There was no negligence on the pail of the respondents and the
defendants were found to have given adequate warning to people with good
sight. It was held that:
"since it was reasonably foreseeable that blind people will pass that way, the
defendants had failed to discharge their duty to take reasonable care not to act
in a way likely to injure any person who may reasonably be expected to walk
along the road. Lord Guest said there is ... no authority ... which would compel
one to take the view that the obligation ol those responsible for the safety of
foot pavements is restricted to those persons who have normal sight ... they
must have regard to all road users, which includes the blind and other
persons." So when a person operates under a statute, he will only be protected
if in discharging his statutory duties he acts reasonably. See also Allen v. Gulf
Oil Refinery Ltd.

Abatement of nuisance
It is in reality a defence to trespass to land, where the defendant can show that
he committed the trespass to abate a nuisance to him. In Lemmon v. Webb43
without giving notice to the appellant and without trespassing on his land, the
respondent cut off some branches of the appellant's trees, which were
overhanging his soil. It was held that the respondent was entitled to do this.
But abatement is a remedy which the law does not favour and the House of
Lords said that if there are two ways of abating a nuisance the less
mischievous is to be followed.
Remedies
These are three: damages, injunction and abatement. But it must be borne in
mind that injunction is a discretionary remedy which the court can refuse to
grant, even though the plaintiff proves his case.
The plaintiff is entitled to compensation for the damage he has suffered as a
result of the nuisance. Thus he may recover for: (a) physical damage to his
property; (b) depreciation in the value of his property; and (c) loss of business
from the nuisance and (d) personal injuries.
Where the nuisance is a continuing one, the award of damages in one action
for nuisance does not bar subsequent actions.

Chapter 16

RYLANDS v. FLETCHER
The rule known by this case is considered one of the most important surviving
cases of absolute or strict liability in Torts. One, in fact, of the leading
examples of circumstances in which the law says a person acts at his own
peril, i.e. the law holds you liable for harm caused by your act whether you did
it intentionally or negligently (without fault). The rule was laid down by
Blackburn J in the Court of Exchequer Chamber in the case of Rylands v.
Fletcher.
The defendants owned a mill run by water. In order to improve the water
system, they employed a firm of contractors to build a reservoir on their land.
The defendants took all the care in appointing the contractors. The contractors,
however, failed to exercise due care and certain old shafts which led to the
mines of the plaintiff were not blocked. When the reservoir was filled with
water, the water sipped through these shafts and flooded the mines of the
plaintiff causing considerable damage. Delivering the judgment of the Court of
Exchequer Chamber which held the defendants liable, Blackburn laid down
the rule in the following words:"
"... What is the obligation which the law casts on a person who, like the
defendants, lawfully brings on his land something which, though harmless
whilst it remains there, will naturally do mischief if it escapes out of his land.
...? We think that the true rule of law is, that the person who for his own
purposes brings on his land and collects and keeps there anything likely to do
mischief if it escapes, must keep it at his peril, and, if he does not do so, is
prima facie answerable for all the damage which is the natural consequence of
its escape."
The defendants appealed to the House of Lords. The appeal was dismissed.
But, in the process, the House of Lords (per Lord Cairns) narrowed down the
principle or rule as laid down by Blackburn J. Lord Cairns, in the House of
Lords, qualified the generality of Blackburn's language by saying that the use
to which the person was putting his land must have been "a non-natural user of
the land1'.
At first, it would appeal that Lord Cairns' qualification to Blackburn's rule is in
effect a new rule. But, on a closer analysis, it seems fair to say that his
qualification softens the rigour of the original rule and turns a rigid rule into a
flexible yardstick which enables the courts, by determining what is natural and
non-natural user to inject their view of the economic and social needs of the
moment into the application of the rule.
The rule as qualified (or subverted) by the House of Lords is stated by Street
thus:

"A person who, in the course of a non-natural user of his land, accumulates or
is held to be responsible for the accumulation on it of anything likely to do
harm if it escapes, is liable for the damage to the use of the land of another,
which results from the escape of the thing from his land."
The rule was developed at a time, when as a result of the change from an
agricultural to an industrial society, the law was already moving away from
strict liability. It has therefore been suggested by some writers that the rule
simply illustrates the attachment of the English courts to interests in land. But
to take the explanation from Blackburn J. himself:
"The general rule, as above stated, seems on general principle just. The person
whose grass or corn is eaten by the escaping cattle of his neighbours, or whose
mine is flooded by the water from his neighbour's reservoir, or whose cellar is
invaded by the filth of his neighbour's privy or whose habitation is made
unhealthy by the fumes and noisome vapours of his neighbour's alkali works is
damnified without any fault of his own; and it seems but reasonable and just
that the neighbour, who has brought something on his own property which
was not naturally there, harmless to others so long as it is confined to his own
property, but which he knows to be mischievous if it gets on his neighgbour's,
should be obliged to make good the damage which ensues if he does not
succeed in confining it to his own property."
As was noted in CWC v. ECL, the general tenor of Blackburn J's statement of
~ the principle is that foreseeability or at least knowledge of the risk is a
prerequisite to the recovery of damages. But that the liability is strict in the
sense that the defendant is liable, even though he has exercised due care to
prevent the escape. Let us now examine the key elements of the rule.

(a) What is a "non-natural user" of the land?

The Privy Council had occasion to determine what "non-natural user" means
in the case of Richards v. Lothian. In this case, the plaintiff-respondent was
the tenant of the second floor of premises belonging to the defendant-
appellant. He suffered damages as a result of an overflow of water from a
lavatory basin situated on an upper floor of the same premises. This was
caused by the water-tap being turned on full and the waste pipe plugged, as
found by the jury, "by the malicious act of some person." At the County Court
at Melbourne, liability was upheld. The defendant appealed and the County
Court decision was reversed by the Supreme Court of Victoria. A further
appeal was made to the High Court of Australia which restored the County
Court's decision. And a further appeal was made by the defendant-appellant to
the Privy Council. Negligence having been negatived, the Privy Council
considered the applicability of Rylands v. Fletcher to the facts and said per
Lord Moulton:
"It is not every use to which land is put that brings into play that principle. It
must be some special use, bringing with it increased danger to others, and
must not merely be the ordinary use of the land or such use as is proper for the
general benefit of the community."

On the facts of the case, the Privy Council said:

"The provision of a proper supply of water to the various parts of a house is

not only reasonable, but has become, in accordance with modem sanitary
views, an almost necessary feature of town life. It is recognized as being so
desirable in the interests of the community that, in some form or other, it is
usually made obligatory in civilized countries. Such a supply cannot be
installed without causing some concurrent danger of leakage or overflow. It
would be unreasonable for the law to regard those who install or maintain such
a system of supply as doing so at their own peril, with an absolute liability for
any damage resulting from its presence even when there has been no
negligence...."

As has been observed already, the non-natural user qualification enables the
courts to adapt the rule to changed circumstances. Compare for this purpose
the following two cases of performance of public duty, on the question of
putting land to non-natural use:
a) Carrying on an industrial duty is not putting land to non-natural use in an
industrial society: Read v. Lyons\u
b) In Rainham Chemical Works Ltd. v. Belvedere Fish Guano Co.12 -
manufacture of ammunition during war time held not to be non-natural use of
the land.
Doubt was expressed by Viscount Simon about die correctness of Rainham's
case in the Read v. Lyons. To summarise on non-natural user, from the cases,
it means:
a) Special use of the land.
b) Which use brings with it increased dangers
c) It must not be the ordinary use or use for the general benefit. See also
Vanderpuye v. Pioneer Shoe Factory Ltd.

(b) What are "things" within the rule

These are things likely to do mischief, if they escape. It means that the things
need not be dangerous in themselves but must have the character of causing
danger if they escape. It need not necessarily, be the thing which was
accumulated on the land. Things so far held within the rule: electricity; gas;
water; explosives; and fire: see Mason v. Levy Auto Parts of England Ltd.15
In Attorney-General v. Corke, it was held that the owner of land who allowed
caravan-dwellers to live on it was liable in Rylands v. Fletcher for
interferences which they caused on adjoining land. Thus, here, human beings
were held to be "things" within the Rule!
It seems fair also to assume that only tangible things are likely to come under
this rule.

(c) Accumulation
Justice Blackburn talked of "a person who, for his own purposes brings,
collects and keeps there the thing that caused the mischief." This means that
the rule will not apply to things which accumulate or grow on the land
naturally. The authorities are Pontardawe Rural Council v. Moore-
Gwyne;Dublin v. Ghana Housing Corporation.

(d) Escape
There must be an escape of the thing. The escape which will satisfy the rule
was explained by Viscount Simon in Read v. Lyons. In that case, the plaintiff-
appellant was injured in an explosives factory, while on an inspection duty, by
a high explosive shell during the process of manufacture. There was no
allegation of negligence on the part of the defendants who were operating the
factory under a contract. It was held that there was no liability under Rylands
v. Fletcher because there had been no escape of a thing from their premises
and the rule would not apply because of the absence of an essential condition
for its application. At page 168, Viscount Simon explained that escape means:

"Escape, for the purpose of applying Rylands v. Fletcher, means escape from a
place where the defendant has occupation of or control over land to a place
which is outside his occupation or control." This serves as a further check on
the application of Rylands v. Fletcher.

This condition is further illustrated by Pouting v. Noakes.A horse reached over

the defendant's land and ate of a yew tree's leaves and was poisoned. It was
held that Rylands v. Fletcher did not apply because the tree did not extend
beyond the defendant's land and so there was no sufficient escape.

EXTENT OF DEFENDANT'S LIABILITY

The defendant is liable for any injury to land as a result of the escape of the
thing as well as consequential damage. Unless the thing escaping causes
damage, no action will lie under this rule. Indeed in Jones v. Festimog Rly
Co., a claim was allowed where the sparks from a railway engine set fire to
haystack on the plaintiffs laud on the Rylaiuls v. Fletcher rule. And also in
Musgrave v. Pandelts, damage to the plaintiff’s furniture caused by escaping
fire was held recoverable.

Any special capacity for plaintiff?

But it must be remembered that, in both cases, the plaintiffs were occupiers of
the land. So is the action available only to occupiers of the land to which the
thing escaped? Indeed. Lord Macmillan seems to be emphasising the interest
of the plaintiff in the land as a basis of the liability when he said in Read v.
Lyons that we must remember that Rylands v. Fletcher derives from a
conception of mutual duties of adjoining or neighbouring landowners and its
congeners are trespass lo land and nuisance.

Can a plaintiff who is not an occupier recover for injuries to chattels or

person?
In Halsey v. Esso Petroleum it was held that the plaintiff could recover on
Rylands v. Fletcher principles for injury to his car, though the car was
stationed on the highway and not on the plaintiff's land. See also Perry v.
Kendricks Transport. ' But, in Welter v. Foot & Mouth Disease Research
Institute,' doubt was expressed which suggests that a plaintiff with no
proprietary interest in the land on lo which the thing which caused the damage
escaped, cannot recover.

Type of injury recoveralle

In Read v. Lyons,' (lie House of Lords, in an obiter, cast considerable doubt on
whether a plaintiff car recover for personal injuries as distinct from injury to
land or chattels. However, we can say here that the Court of Appeal has
decided in Hale v. Jennings Brothers3 that an occupier can recover in respect
of personal injuries. Here a tenant of a stall at a fair suffered personal injuries
as the result of the escape of a chair-o-plane of the defendant. It was held that
Rylands v. PI etcher applied and she should recover.
The rule was in issue in the Ghanaian case of Dublic v. Ghana Housing
Corporation. In this case, the plaintiff and defendants were neighbours in a
low lying area surrounded by hills. After rains, water rushed down from the
hills. To prevent its estate from being flooded, the defendants constructed
gutters on their land to divert the cause of the water and thus prevent the estate
from being flooded. The plaintiff whose property was lower down the line
than that of the defendants took no such precautions. As a result, the water
flooded her house and her tenants moved. She sued the defendants first for
trespass but subsequently amended her claim to include liability under the
Rule. The action failed under the Rule because, according to the trial judge
there was no evidence that the defendants at any time accumulated water
anywhere on their property.
The reader is also encouraged to read the cases of Vanderpuye v. Pioneer Shoe
Factory Ltd and Attraah v. Aboah.

DEFENCES TO AN ACTION IN RVLANDS v. FLETCHER

To start with, reference can be made to Blackburn J in Rylands v. Fletcher.35
There he said: "He [i,e, the defendant] can excuse himself by showing that the
escape was owing to plaintiff's default; or. perhaps, that the escape is the
consequence of Vis Major, or the act of God." This sentence contains three
possible defences.

CONSENT — Voluntarily given.

If the plaintiff expressly or impliedly consents to the accumulation of the thing
which escapes, then he cannot sue if it escapes. So, before a plaintiff can
recover, where consent is proved, then he must establish negligence, i.e. bring
his action in the tort of negligence. The decisions on this defence are all well
reviewed in Peters v. Prince of Wales Theatre.

THE ACT OF THIRD PARTIES

Liability is excluded if the escape is caused by the deliberate unforeseeable act
of third parties. But if the defendant could have foreseen or prevented the act
of the third parties and did not, then he is liable: see Richards v. Lothian; and
Box v. Jubb . In the latter case, the defendants were held not liable for damage
done through an overflow from their reservoir because the overflow was
caused by an act of a third party who emptied his own reservoir into the stream
which fed the defendants' reservoir. See also Perry v. Kendricks.'

ACT OF GOD
If an escape is caused, through natural causes and without human intervention,
"/'// circumstances which no human foresight can provide against, and of
which human prudence is not bound to recognize the possibility," then it is
said this defence is available. Thus in Nichols v. Mankind'0 where a most
violent thunderstorm caused flooding, the defence succeeded. In Ruck v.
Williams41 Baron Bramwell made a statement which is perhaps a rough guide
for this defence. Talking about an extraordinary storm; he said:

"We call it extraordinary, but, in truth, it is not an extraordinary storm which

happens once in a century, or in 50 or 20 years; on the contrary, it would be
extraordinary if it did not happen. There is a French saying 'that there is
nothing so certain as that which is unexpected.' In like manner, there is
nothing so certain as that something extraordinary will happen now and then."

This means, for example, that for an extraordinary occurrence to amount to an

act of God, it must be the kind of thing which happens rarely or happens once
20, 50 or more years.
So, in Greenock Corpn v. Caledonian Ryl Co., an extraordinary and
unprecedented rainfall was held not to be an act of God. The House of Lords
explained that, in Nichols v. Marsland, the jury had found that no reasonable
person could have anticipated the storm and because the court did not want to
disturb the jury's finding, that is why the defence succeeded.
Chapter 17

ECONOMIC TORTS
The torts to be discussed in this chapter deal with acts done intentionally to
cause harm to another's right to earn a living by wrongful means. They seek to
protect the sanctity of contracts and trade generally. For this reason, we have
to distinguish between acts done as (1) genuine competition; and (2) pressure
which interferes with the trade or contract of another through illegal means.
For example, a supermarket which sets up next to a street comer shop and
thereby kills another's business is not committing an economic tort! And we
have to keep in mind the fact that the basic concern here is to protect a
person's right to earn a living.

A. PASSING OFF
This is the purest of economic torts. Its purpose is almost exclusively the
protection of economic interests. We can begin consideration of this tort by
contrasting it with the tort of deceit. While deceit protects a businessman who
is the direct target of a fraudulent misrepresentation, passing off protects
traders against misrepresentations aimed at their customers, which are
calculated to damage their trade or goodwill. The -common law at first
confined the action to the use by A of B's trade name or trade mark in
connection with A's business or goods in a way intended to make B's
customers * believe the goods were produced by B. So the action was aimed at
dishonest competitive practices. To drive the point home, let us take some
examples:
(a) Reddaway v. Banham
The plaintiff manufactured machine belting for many years, .with the name
"Camel Hair Belting." The defendants, who had previously been in the
plaintiff's employment, went into business and started stamping his goods as
"Camel Hair
Beltings." This was held to be passing off.

(b) White Hudson & Co. Ltd. v. Asian Organisation Ltd.

The appellant sold cough sweets in red paper wrappers called "Hacks.'' The
majority of their customers were persons not able to read English. They
acquired the habit of simply calling for "red paper cough sweets." Five years
later, the respondent began selling sweets in Singapore in similar wrappers but
marked "PETCO PECKOS." The appellants were given an injunction to
restrain the respondents from selling their sweets in the same type of wrappers
without distinguishing them in some way.
(c) J. Bolingcr v. Costa Brava Wine Co. Ltd.
The plaintiffs produced wine in the Champagne district of France and supplied
it in England and Wales. The wine called "Champagne" had a high reputation
and had been sold for many years. The defendant imported wine from Spain,
which he marketed under the name of "Spanish Champagne." The plaintiffs
sought an injunction to restrain the defendants from passing off, as champagne,
wine that was not produced in the Champagne district of France. The injunction
was granted.

(d) Reckitt & Colman Products Ltd. v. Borden Inc. (the Jif Lemon Case)
The plaintiffs sold lemon juice in lemon-shaped bottles, a practice developed by
them. The defendants began getting them restrained from doing so. The
plaintiffs succeeded in getting them restrained from selling juice produced by
them in a similarly-shaped bottle.

(e) Warnink v. Townend

Ratio protecting a name exclusively associated with a region in the champagne
case noted above was extended to products exclusively associated with a
particular method. Injunction was granted against a product not made from eggs
and spirit being called advocaat.

In the Jif Lemon case, in answer to the submission that a trader is entitled to
expect the public to exercise a reasonable degree of diligence in distinguishing
between competing products at p. 888, Lord Oliver said:

"The essence of the action for passing off is a deceit practised on the public and
it can be no answer, in a case where it is demonstrable that the public has been
or will be deceived, that they would not have been if they had been more
careful, more literate or more perspicacious. Customers have to be taken as they
are found."

So a trader who discovers from something that the customer says or does that
the customer is mistaking his product for a competitor's though not from
anything he has said, may be liable in passing off if he does not correct the
customer's self-induced misapprehension.
B. INTERFERENCE WITH CONTRACTUAL RELATIONS
It is a tort for A to intentionally induce B to break his contract with C, or to
prevent B from performing it, both to the damage of C. The damage is what
C would suffer in the ordinary course of business, as well as the intended
damage.
The point is illustrated by the decision in Lumley v. Gye. Johanna, a niece
of the German composer, Richard Wagner, contracted to sing exclusively in
the plaintiff's theatre. The defendant, who was fully aware of this contract
persuaded her not to perform. The defendant was held liable in tort.
This was a ground breaking decision in 1853. The difficulty for a court at
the time finding a procurer of a breach of contract liable was that the
appropriate action for the wrong committed by the contracting party lay in
contract; but no such action would be against the procurer. For, as the
orthodox rule put it at the time, only a party to a contract could be sued for a
breach of contract. The solution settled on by the court to go round this
blockade was to allow the procurer to be sued in tort, by an action on the
case. The point as the House of Lords stressed recently is that the person
procuring the breach of contract was held liable as an accessary to the
liability of the contracting party. The procurer's liability therefore depended
on the contracting party having committed an actionable wrong.
In D.C. Thompson & Co. Ltd. v. Deakin, the plaintiffs were publishers.
They asked all their employees to undertake not to-become members of a
trade union. They dismissed one who did. Other unionised employees of the
plaintiffs called out a strike and asked for assistance from other unions. A
company which supplied the plaintiffs with paper noticed reluctance on the
part of their drivers to deliver to the plaintiffs, so they said they could no
longer carry out deliveries because of the "action of trade unions." The
plaintiffs sought an injunction to restrain the unions from procuring this
alleged breach of contract. In the course of his judgment, Morris LJ.
described the essentials of this tort as follows: "The tort is committed if a
person, without justification, knowingly and intentionally interferes with a
contract between two other persons." The plaintiffs' action failed here
because it was not proved that the unions had knowledge of the contract in
question. Also no unlawful means had been used to bring about the breach.
From D.C. Thompson & Co. Ltd. v. Deakin, the following additional points
can be noted about this tort:

a) There must be a valid contract (any kind of contract); contractual

expectations are not enough. So if A teaches B dancing in the hope of
engaging him and C induces him to sign instead with C, no tort.
b) Carelessness is not enough because the tort is one of intention. The
intention here requires knowledge of the contract, or, as Lord Denning put it
in Torquay Hotel Co. Ltd. v. Cousins, the defendant must "turn a blind eye
to it and intend to interfere with it."
c) But recklessness is sufficient.
d) No liability if the inducement is to terminate contract lawfully.
e) The plaintiff must be the intended target.
Inducement for purposes of the action may assume three forms:
a) Direct Persuasion, i.e. persuasion of A to break with B. Here the breach
must be a reasonable consequence of the inducement. The defendant may
act through an intermediary. Liability does not require the defendant to use
unlawful means; persuasion is enough; on the other hand mere advice is not
persuasion and involves no liability. See also Camden v. Forcey.
b) Direct prevention (intervention) where A docs an unlawful act (e.g.
kidnaps B) to prevent B from performing his contract with C: see GWK
Ltd. v. Dunlop Rubber Co. Ltd.
c) Indirect prevention or intervention, i.e. when A induces B to breach his
contract with C, see J.T. Stratford & Sons Ltd. v. Lindley.1'1 Here, a breach
must be a necessary consequence of the defendant's conduct, and has to be
unlawful. "Indirect interference is only unlawful if unlawful means arc
used:" per Lord Denning in Torquay Hotel Co. Ltd. v. Cousins.

Defence
The defendant may plead justification. The point is illustrated by Brimelow
v. Casson. In that case the plaintiff paid his chorus girls such low wages
that, to make ends meet, they had to practise prostitution. The defendants
who ran a protection society for theatre workers induced theatre proprietors
not to allow the plaintiff to use their theatre, to get the plaintiff to raise
wages. Contracts were broken in some cases and, in others, proprietors
refused to enter into new ones. It was held that the defendant's action was
justified because the plaintiff's conduct was compelling the girls to resort to
immorality.
Further, if A has a legally enforceable financial stake in IVs affairs, he may
be justified in inducing B to break his contract with C. Sec also Merkur
Island Shipping Co. v. Laughlon.

C. CONSPIRACY
This action is an off-shoot of the criminal law. It consists in an agreement
between two or more persons to injure X by unlawful means or in a
combination to do a lawful act to injure X or to do a lawful act by unlawful
means. Sometimes an act if done by an individual will be lawful, but
becomes unlawful by virtue of the fact that it is done in combination. This is
because of the power of the combination. The unlawful acts may be (a)
criminal; (b) tortious; or (c) acts in breach of statute. In case of (c), the
plaintiff
should have an independent cause of action for the breach of the statute. In
the case of conspiracy consisting of a combination to do a lawful act to
injure X, it must be clear that the ulterior motive (i.e. the intention) is to
damage the plaintiff rather than to serve the bona fide and legitimate
interests of the defendants. As has been said by an eminent judge Viscount
Simon in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch:

"The test is not what is the natural result to the plaintiffs of such combined
action, or what is the resulting damage which the defendants realize or
should realize will follow, but what is in truth the object in the minds of the
combiners when they acted as they did. It is not consequence that matters,
but purpose; the relevant conjunction is not 'so that' but 'in order that'."

In that case and in Mogul Steamship Co. v. Macgregor Gow '& Co., it was
held lawful to drive the plaintiff out of business in order to protect the
defendant's own business.
But there will be liability if the action taken exceeds the protection of
legitimate interests: see Huntley v. Thornton. Where a defendant acts on
mixed motives, liability depends on the predominant motive. For the
defence of justification: see Scala Ballroom? In this case, the plaintiffs
decided to refuse admission to coloured persons. The Musicians' Union
which had many coloured persons among its members gave notice that none
of its members would perform in the ballroom till the ban was lifted. The
plaintiff sought an injunction to restrain the defendants, officials of the
union, from persuading or attempting to persuade their members not to
perform. It was held that an injunction would not lie. The defendants'
purpose, the protection of their members' interests, was legal. See also
Lonrho Ltd. v. Shell Petroleum Co. Ltd (No. 2).

D. INTIMIDATION
This tort is committed if the defendant threatens to use unlawful means to
compel A to comply with his wishes and does so to his detriment; or
threatens to use unlawful coercion against A and compels him to act to the
detriment of B. In Rookes v. Barnard the BOAC case, the plaintiff, an
employee of BOAC (being dissatisfied with the union) resigned from his
union but continued to work for BOAC. Union officials, some of whom
were employees of BOAC and were anxious to maintain a closed shop,
threatened BOAC with strike action, unless they dismissed the plaintiff.
Strike action would have involved breaches of contract by the employees
concerned. BOAC dismissed the plaintiff and he sued the defendants for
intimidating BOAC. The House of Lords held the plaintiff could recover.
Also, in Tarleton v. M'gawky2'1 the defendants fired guns at Africans in
order to frighten them away from trading with his rival. He was held liable
in the tort. (How about employing flatulence!)

E. CAUSING LOSS BY UNLAWFUL MEANS

The tort of intimidation, it has been suggested, is only a variant of a broader
tort known as "causing loss by unlawful means." The broader tort was
recognised by Lord Reid in J.T. Stratford & Son Ltd. v. Lindley when he
says:

"The respondents' action (in calling a strike) made it practically impossible

for the appellants to do any new business with the barge-hirers. It was not
disputed that such interference with business is tortuous, if any unlawful
means are employed."

This tort was by the decision in OBG v. Allan separated from the principle
of accessory liability laid down in Lumley v. Gye, namely inducing breach
of a contract.
The tort of causing loss by unlawful means differs from the tort of inducing
breach of contract, the Lumley v. Gye principle, as originally formulated, in
at least four respects. First, unlawful means was a tort of primary liability,
not requiring a wrongful act by anyone else, while Lumley v. Gye created
accessory liability, dependent upon the primary wrongful act of the
contracting party. Secondly, unlawful means required the use of means
which were unlawful under some oilier rule (independently unlawful),
whereas liability under Lumley v. Gye required only the degree of
participation in the breach of contract which satisfied the general
requirements of accessory liability for the wrongful act of another person.
Thirdly, liability for unlawful means did not depend upon the existence of
contractual relations; it was sufficient that the intended consequence of the
wrongful act was damage in any form, for example, to the claimant's
economic expectations. Under Lumley v. Gye the breach of contract was of
the essence. If there was no primary liability, there could be no accessory
liability. Fourthly, although both were described as torts of intention, the
results which the defendant had to have intended were different. In unlawful
means the defendant had to have intended to cause damage to the claimant
(although usually that would be a means of enhancing his own economic
position).
The elements of this tort as stated by Lord Hoffman in OBG v. Allan are:
A wrongful interference with the actions of a third party in which the
plaintiff has an economic interest, and
An intention thereby to cause loss to the claimant.
The most important question here is what constitutes "unlawful means."
Acts against third parties count as unlawful means only if they are
actionable by that third party. To quote Lord Hoffman:
"Unlawful means ... consists of acts intended to cause loss to the claimant
(i.e. plaintiff) by interfering with the freedom of a third party in a way
which is unlawful as against that third party and which is intended to cause
loss to the claimant. It does not ... include acts which may be unlawful
against a third party but which do not affect his freedom to deal with the
claimant."

F. INJURIOUS FALSEHOOD
Care should be taken not to confuse this tort with defamation
. The tort protects interests in the reputation and goodwill of one's business.
The law was thus stated by the Court of Appeal in Ratcliffe v. Evans:

"An action will lie for written or oral falsehood ... where they are
maliciously published, where they are calculated in the ordinary course of
things to produce, and, where they do produce, actual damage." Originally,
this tort addressed unwarranted attacks on title to land; hence it was known
as slander of title. Later, it was extended to goods — slander of goods.
Since Ratcliffe's case, it is now referred to as "injurious falsehood."

Any type of interest in land, trademarks, patent, trade names, copyright,

company shares — all can found action in this tort. For this proposition, see
Joyce v. Motor Surveys.30 Here, the plaintiff was a tenant of the defendant.
To evict him and be able to sell the entire property with vacant possession,
the defendant told the Post Office not to forward any more mails to him at
that address and told the tyre manufacturers' association that he was no
longer trading there. The court held the defendant liable for injurious
falsehood.
The action will also be available, where business reputation is maliciously
disparaged; but no imputation entitling action in defamation is made.
Interference with prospective advantage, even social, comes within the
ambit of this tort. Thus, to deprive A of a marriage by falsely informing the
intended husband that A is already married is tortious: see Shepherd v.
Wakeman.31
For this action, the test is whether a reasonable man will take the
defendant's claim in denigration of the plaintiff's goods seriously. Thus in
White v. Mellin32 W bought bottles of infant’s food made by M for sale in
his shop. He affixed to it a label that said Dr. V's food for infants and
invalids, a product of W, was better than any other. Held no injurious
falsehood. Just mere puff.
By way of a summary, for the action for injurious falsehood to succeed the
following requirements must be established:
a) The plaintiff must prove malicious statement, by showing, for e.g.
absence of belief in the truth of the statement on the part of the maker, the
defendant.
b) The statement must be a false one about the plaintiff or his property.
Not just that a false statement has caused him harm.
c) There must be publication i.e. the statement must be made to a third
party.
d) The plaintiff must prove that the false statement caused him pecuniary
loss.

Chapter 18

Introduction
Winfield in his article "Foundation of Liability in Tort"' recounts a debate
between Salmond on one hand and Winfield and Pollock on the other; which
can be summarised as follows:
a) Salmond argues that the Law of Toils consists of a body of rules
establishing specific wrongs and thus denies any discernible general
principles of liability.
b) Winfield and Pollock counter that there runs through all Torts, and
therefore the Law of Torts, a general principle of liability.
Salmond's view, though it presents a static picture of torts law, is a close
description of the nominate torts discussed in the preceding chapters. The
nominate toils do refer to specific interests of the plaintiff which are
infringed and they define conduct which constitutes the wrong, e.g. false
imprisonment.
Negligence breaks away from this closed-category principle. It provides a
fluid principle of liability, infinitely adaptable by the controlled
manipulation of its elements of duty of care, breach and damage. This has
enabled negligence to annex and expand to cover the sacred terrain of the
nominates. This development, in turn, makes the view of toils law as an
aggregation of distinct, civil wrongs increasingly unreal and wins the
argument for Winfield and Pollock. As Lord Macmillan said in Donoghue v.
Stevenson:

"The grounds of action may be as various and manifold as human errancy;

and the conception of legal responsibility may develop in adaptation to
altering social conditions and standards. The criterion of judgment must
adjust and adapt itself to the changing circumstances of life. The categories
of negligence are never closed. The cardinal principle of liability is that the
party complained of should owe to the party complaining a duty to lake care,
and that the party complaining should be able to prove that he has suffered
damage in consequence of a breach of that duty. Where there is room for
diversity of view, it is in determining what circumstances will establish such
a relationship between the parties as to give rise, on the one side, to a duty to
lake care, and on the other side to a right to have care taken."

Preliminary Observations
By way of recapitulation, we may note that there are two meanings or senses
in which the term negligence is employed in torts law, namely:
a) a menial element which supports actions in some torts, e.g. battery; and
b) an independent tort which consists of a breach of a legal duty, followed
by damages.
As an element in another tort, negligence means either:
(a) inadvertence] by the defendant to the nature of his
or ] conduct or its probable consequences

(b) indifference ]

Basis of negligence liability

The liability for negligence as a toil, according to Lord Atkin in Donoghue
v. Stevenson, is based upon a general public sentiment of moral wrongdoing
for which the offender must pay. There is thus injected into this tort, as its
justification, a moral fault. In the legal sense, "fault" has come to mean no
more than a departure from conduct required of a person for the protection
of others. In practice, however, this moral justification is contradicted by
three things:
a) The objectivity of the negligence lest, which often is indifferent to the
moral blamelessness of the particular defendant.
b) The operation of the res ipsa loquitur rule, which saddles a defendant
with an onus of proving innocence, which is often undischargeable.
c) The doctrine of vicarious liability which may cast liability on a blameless
employer.
It must be admitted though that, in the great majority of cases, liability in
negligence indeed coincides with the defendant's blameworthiness or some
moral delinquency on his pail, e.g. the taxi driver who runs through the red
light and collides with another car. Beyond these, however, negligence
works as an arbitrary prescription of liability rather than a regulator of
liability upon a moral principle. Thus, there is a constant conflict between
this moral basis of negligence and compensation as a function of torts.
As a result of this conflict between the moral core (or foundation) of
negligence, which insists on no liability without fault and the compensation
function of the law of torts, which urges that the innocent be compensated,
irrespective (regardless) of fault, there is noticeable a dualism in this tort,
namely:
Negligence introduces a fault element into some torts which were once
strict.
It covertly extends strict liability into areas ostensibly governed by fault.

What then is negligence as a tort?

In the case of some torts e.g. battery, the definition of the tort allows us to
form a clear mental picture of the defendant's conduct in committing it. The
tort of negligence docs not lend itself to such easy imaging. The tort derives
from the old writ o trespass on the case. It is therefore actionable only on
proof of damage.

In Haynes v. Harwood,'' Greer L.J put the matter neatly thus:

"Negligence in the air will not do; negligence, in order to give a cause of
action, must be the neglect of some duty owed to the person who makes the
claim." Baron Alderson in Blyth v. Birmingham Water Works Co? also
defined it thus:

"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."
Quoting Lord Wright in Lochgelly Iron & Coal Co. v. M'Mullan, Edusei J
(as he then was) drew out the elements involved in the tort in Allasan
Kotokoli v. Mow Hausa as follows:

"In a strict legal analysis, negligence means more than heedless or careless
conduct, whether in omission or commission: it properly connotes the
complex concept of duty, breach, and damage thereby suffered by the person
to whom the duty was owing."

So negligence as a tort is not coterminous with carelessness, or heedless

conduct. Mere careless conduct then is not enough to attract liability under
this tort. Negligence, as a tort, as the statement of Edusei J (as he then was)
just quoted indicates, covers the three-tier concept of duty, breach and
damage.
Thus, the mere fact that a man is injured by another's act gives, in itself, no
cause of action in negligence, unless the act lacks due care and the duty to be
careful exists, i.e. is imposed by law. That is to say a person cannot be held
negligent in torts law, unless he owed some duty to the plaintiff and that
duty was breached, e.g. a houseowner or occupier is not liable in negligence,
if he fails to repair a broken stair-case; but he is liable if B (to whom he
owes a duty in relation to the house) is hurt by the broken stair-case without
any warning to him.
Let us proceed to a discussion of the three elements: duty, breach and
damage. We begin with duty of care.

Duty of care
What is a duty of care? We may here recall Brett M.R's statement in Heaven
v. Pender. According to that statement a duty is owed to anyone who might
reasonably be expected to suffer.
This was qualified in Deny v. Peek, where it was said that a duty to lake care
arises, if there was such proximity between the persons or properties of the
parties that want (absence, lack) of care might occasion damage by one to
the other.
The duty defines the interests protected by the tort of negligence i.e. the
conduct which is actionable. The existence of a duty is therefore a matter of
law. In the early years, this was strictly dependent on precedent.
In the formative years of the tort of negligence, we notice three
circumstances in which inadvertent injury was redressible by a civil action
on the case:

a) Duty arising from a public calling: e.g.an innkeeper to client, a public

carrier, a surgeon, and the attorney. In these cases, the inadvertence entailed
liability just as much as an intentional harm
b) Duty arising from public office: As the principle was then stated "every
breach of a public duty causing wrong and loss to another is an injury and
actionable." this results from the trust and confidence reposed in the officer
concerned.
c) Duty arising from control of dangerous things.
There are two tests generally for the ascertainment of the existence of a duty
of care:
(i) The first test looks at the nature of the interest. The interest infringed
must be one which the law protects against negligent conduct.
(ii) The second is the type of injury. The injury must have been such that a
reasonable man would have foreseen and provided against it.
Under the two tests, it is clear that the standard is an abstract one. If a
reasonable man, placed in the circumstances of the defendant, would have
foreseen that his conduct might endanger or prejudice (harm/damage) others
in regard to their legally protected interests, then the defendant is deemed to
have been under a legal duty towards such others to exercise appropriate
care. It follows that the foreseeability of harm will not generate a duty of
care towards persons apparently outside the area of risk. Neither will the
foreseeability of harm generate a duty of care if, in the circumstances, a
reasonable man would not deem it necessary to lake any precautions. In
other words: (a) what the reasonable man would foresee determines the
existence of the duty, and (b) what the reasonable man would do determines
the scope or content of the duty.
The usefulness of the duty of care device for negligence liability becomes,
on such an analysis, immediately obvious: namely, it is a policy device for
judicial monitoring of the type of wrongs, on grounds of policy, to be
considered actionable as negligence. So, no hard and fast rules about this
duty of care issue.
The clearest formulation of a general principle for determining the existence
of the duty of care is to be found in Donoghue v. Stevenson11 in Lord
Atkin's neighbour principle enunciated therein. In this case, ginger-beer was
bought for the appellant by a friend. The ginger-beer was contained in an
opaque bottle. There was the decomposed remains of a snail in the bottle,
which the appellant alleged shocked her and made her suffer severe gastro-
enteritis. She brought the present action alleging that the manufacturer of the
ginger-beer was liable to her for negligently packing his drink. By three-two
decision, it was held by the House of Lords that, assuming those facts to be
proved, an action would lie in negligence.
Lord Atkin developed his neighbour principle for determining duty in novel
situations in this case. He asserted that through all the earlier cases in which
the courts held that liability arose out of negligent conduct, one general
central principle was common. He formulated this common principle at page
120 of the report as follows:
"The rule that you are to love your neighbour becomes in law, you must not
injure your neighbour; and the lawyer's question, who is my neighbour?
receives a restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? The answer seems to be —
persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question."
A duty to take care then arises when the person or property of one was in
such proximity to the person or property of another that, if due care was not
taken, damage might be done by the one to the other. Same as Brett M.R.
had echoed in Heaven v. Pender12 earlier. In other words, proximity reflects
the concept of a neighbour in law. But, by proximity, we should not
understand mere physical closeness - it extends to the close and direct
relations thai the act complained of affects, i.e. persons whom the one
alleged to be bound lo take care would know would be directly affected by
the careless act or those whom a reasonable person in his or her position
would contemplate as likely to be affected adversely.
Donoghue v. Stevenson thus revolutionised the law of negligence by
providing a general principle by which to determine the new situations
which the law would recognise as creating a duty between persons.
Henceforth, in the words of Lord Macmillan in the same case, we are not to
consider that the categories of negligence are closed. This made a break
from the early approach where duty situations sprang primarily from
individual precedents coalescing into three groups as noted already.
Donoghue v. Stevenson also disposed of the privity of contract obstacle to
the development of negligence law attributed to Winterboottom v. Wright,
that where there was a contractual relationship between a manufacturer and
another, there can be no liability in tort to a third party injured by the
negligent performance of the contract.
The proximity test reflected in the neighbour principle establishes a prima
facie duty. If, then, a prima facie duty exists, one must look to discover
whether there are any considerations which ought to: (a) negative', or (b)
reduce; or (c) limit the scope of the duty or the class of persons to whom it is
owed or the damages to which a breach of it may give rise. This became
known as the two-tier approach to the acceptance of a duty in novel
situations
The fear that die neighbour principle might lead to the opening of the
floodgates to litigation has resulted in many fudges' unwillingness to admit
that the neighbour principle is a principle of general application to the tort of
negligence. This fear was poignantly brought out by Widgery J in Weller v.
Food &Mouth Disease Institute.
It was not until 38 years after Donoghue v. Stevenson was decided that the
English House of Lords, through Lord Reid in Dorset Yacht Co. Ltd. v.
Home Office, accepted that the neighbour principle was a statement of
general principle relative to the determination of the existence of a duty of
care in the tort of negligence and was to apply, though neither slavishly nor
like a statutory definition, unless there was some justification or valid
explanation for its exclusion.
In Dorset Yacht Co. Ltd. v. Home Office, seven borstal boys escaped from
an island camp and entered the plaintiffs yacht which Was moored nearby,
cast her adrift and caused considerable damage to the yacht and its contents.
The plaintiffs pleaded that the borstal officers, knowing the boys' criminal
potentials or propensities and history of previous escapes, owed them a duty
of care to ensure that they did not escape and that they had failed to maintain
effective control over them at night. They sought to hold the Home Office
vicariously liable for the negligence of the officers. The Home Office denied
any liability on the part of either itself or its officers, stressing that they did
not owe the plaintiff a duty. It was held that the Home Office owed a duty of
care to the plaintiff. But, in their judgment, the House of Lords clarified the
duty of care concept and therefore the role of Lord Atkins' neighbour
principle in determining the duly. They stressed that, closely analysed, the
concept of duty of care is simply a control device adopted by the judges lo
limit the scope of liability in the practical world, and, in so doing, they are
guided by questions of policy rather than any universally applicable
principle. They adopted Lord Denning's assertion in the Court of Appeal
that:
"It is [i.e. duty of care] I think, at the bottom a matter of public policy which
we as judges must resolve. This talk of duty or no duty is simply a way of
limiting the range of liability for negligence."
We should not be surprised by this lukewarm attitude to Donoghue v.
Stevenson. Before Dorset Yacht in 1970, the Court of Appeal had in Candler
v. Crane, Christmas Co.19 refused to extend liability for negligent
misstatement in the light of Donoghue v. Stevenson and instead preferred to
abide by decisions made before Donoghue v. Stevenson; that is to say that
rather than rely on Donoghue v. Stevenson, they chose to rely on precedents.
But the two-tier approach has been criticised. Notably by Lord Keith in
Governor of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co.
Ltd. Lord Keith stressed, in that case, that the acceptance of duty in novel
situations must have regard to all the circumstances of the case as well as lo
whether it was just and reasonable to do so. Lord Bridge put the final nail in
the coffin of the two-tier approach in Caparo Industries, where he seems to
lake us back to the pre-1932 categorisation and to deny the "modern"
developments when he says:

"... it is preferable ... that the law should develop novel categories of
negligence incrementally and by analogy with established categories, rather
than by a massive extension of a prima facie duty of care restrained only by
indefinable considerations which ought to negative, or to reduce or limit the
scope of the duty or the class of persons to whom it is owed."

The trend towards reining in Donoghue v. Stevenson's neigbour principle as

the sole determinant for the existence of a duty of care has thus been
consolidated in Caparo. This case provides three factors which must be
considered in determining whether a duty of care should be recognised in
novel situations. These are (a) reasonable foresight of harm; (b) proximate
relationship between the parties; and (c) whether it is fair, just and
reasonable to impose a duty in the circumstances. Of these three, the first
two are encapsulated in the neighbour principle. The third raises policy
considerations.
Types of duly situations dealing with negligence
The role the duty of care concept plays in negligence can be best understood
by looking at its development in some areas. We look principally at three
areas: Rescue; nervous shock; and pecuniary loss.

Rescue cases
For the sake of clarity, we start with an illustration of the problem: X by his
negligent conduct puts Y in danger. Z sees Y in danger and goes to his
rescue and is injured. The question is does X owe Z a duty of care? If he
does, then Z can bring an action against X; so Z must establish that X owes
him/her a duly of care, while engaging in the activity in question. In the past,
guided by the principle in Dorset Yacht, the courts were reluctant to give
relief in cases of rescue. Two cases illustrate the point.
The first case is Haynes v. Harwood. In this case, the plaintiff, a police
constable, was on duty inside a police station in a street in which, at the
material time, were a large number of people, including children. Seeing the
defendant's runaway, unattended horses with a van attached coming down
the street, he rushed out and eventually stopped them, sustaining injuries in
consequence, in respect of which he claimed damages. It was held that:
on the evidence, the defendant's servant was negligent in leaving the horses
unattended in a busy street;
that, as the defendant must or ought to have contemplated that someone
might attempt to stop the horses in an endeavour to prevent injury to life and
limb, and, as the police were under a general duty to intervene to protect life
and property, the act of, and the injuries to, the plaintiff were the actual and
probable consequences of defendant's negligence; and
that the maxim volenti non fit injuria did not apply to prevent the plaintiff
recovering.
Lord Justice Greer explained the decisions thus:
"What is meant by negligence? Negligence in the air will not do, negligence,
in order to give a cause of action, must be the neglect of some duty owed to
the person who makes the claim ...
I personally have no doubt that a policeman or indeed any one — and still
more a policeman - using the highway for the purpose of stopping a runaway
horse and thereby preventing serious accidents and possibly preventing loss
of life is within the category of those lawfully using the highway.
I agree to this extent that the mere fact of a spectator running out into the
road to stop a runaway horse will not entitle him to succeed in an action for
the consequential damage. All the circumstances must be considered and, if
this act is one which everybody would expect from a normally courageous
man, doing what he does in order to protect other people, I do not think the
observation accurately represents the law of this country."
Lord Justice Greer thus drew a distinction between a mere spectator whose
claim should be denied and a person under an obligation whose claim should
be accepted. His colleague Lord Maugham L.J. also said:

"To avoid misconception, I wish to repeat that 1 am not expressing the

opinion that, if the plaintiff here had been a layman, instead of a police man
on duty, the result would necessarily have been otherwise; that question docs
not arise. My present view is that a rescuer, who acts on such a moral
compulsion, that, having regard to his powers and his opportunities, he
would feel disgraced if he merely stood by, would be entitled to succeed in
such an action as this."

The second case is Baker v. T.E. Hopkins. In that case, a company, which
carried on business as builders and contractors, undertook work on a well,
which involved clearing it of water. The well was some 50ft deep and 6ft in
diameter. H, a director of the company, and W, another workman employed
by the company, erected a platform 29ft down the well and some 9ft above
the water and lowered onto it a petrol-driven pump. After the engine of this
pump had worked for about an hour and half, it stopped and a haze of fumes
was visible in the well. The working of the petrol pump created a dangerous
concentration of carbon monoxide, a colourless gas. H returned to the well
after working hours that evening and observed the haze and noticed a smell
of fumes.
On the following morning, at about 7.30 a.m., H instructed the two workmen
to go to the well, but said to W, "Don't go down that bloody well until I
come." They arrived at the well and shortly after and before H's arrival, one
entered the well and was followed by the other. Both were overcome by
fumes. A doctor, who was called to the well, went down the well with a rope
lied around his body in order to see if he could rescue the men, though
warned not to go. He was also overcome by fumes. An attempt was made to
haul him to the surface by the rope but the rope got jammed and there was
some delay in his being brought to the surface. He died shortly afterwards.
The court found that H had acted in good faith, but lacked experience and
did not appreciate the
great danger that would be created in the well and did not seek expert advice
on the proper method of emptying the well. In an action for damages for
negligence resulting in the death of W and the doctor judgment was given
against the company, ten per cent of the responsibility being attributed to W.
On appeal, it was held that:

(i) The defendant company were liable for negligence causing W's death
because the method adopted to empty the well had created a situation of
great danger to anyone descending the well on the morning in question and
the defendant company were negligent in that no clear warning of the deadly
danger was given to W on that morning, H's order not to go down the well
until he came was insufficient to discharge the defendant company's legal
duty to take reasonable care not to expose W to unnecessary risk; though the
apportionment of ten per cent of the responsibility to W would not be
disturbed,

(ii) the defendant company were liable for negligence causing the death of
the doctor because it was a natural and probable consequence of the
defendant company's negligence towards the two workmen that someone
would attempt to rescue them, and the defendant company should have
foreseen that consequence; accordingly, the defendant company were in
breach of duty towards the doctor. Morris L.J. explained the decision further
as follows:

"The company could and should in my judgment have anticipated that, if as a

result of their negligence, their men were exposed to great danger in the well,
it would be a natural and probable consequence that someone would attempt
to rescue. Subject to a consideration of certain further submissions ... it
seems to me therefore that it is shown that Dr. Baker's death was a result of
the company's negligence.

... There is happily in all men of goodwill an urge to save those who are in
peril. Those who put them in peril can hardly be heard to say that they never
thought that rescue might be attempted or be heard to say that the rescue
attempt was not caused by the creation of the peril.

... If A by negligence places B in peril in such circumstances that it is a

foreseeable result that someone will try to rescue B and if C does so try -
ought C in any appropriate sense to be described as a 'volunteer'? In my
judgment the answer is No. I confess that, it seems to me ungracious of A
even to suggest it... C's intervention comes at the moment when there is
some situation of peril and the cause of or the responsibility for the creation
of the peril may be quite unknown to C. If C, actuated by an impulsive desire
to save life, acts bravely and promptly and subjugates any timorous over-
concern for his own well-being or comfort, I cannot think that it would be
either rational or seemly to say that he freely and voluntarily agreed to incur
the risks of the situation which had been created by A's negligence.

... If a rescuer acts with a wanton disregard of his own safety it might be that,
in some circumstances it might be held that any injury to him was not the
result of the negligence that caused the situation of danger. "

On his part, Willmer L.J. put the same point as follows:

"Assuming the rescuer not to have acted unreasonably, therefore, it seems to

me that he must normally belong to the class of persons who ought to be
within the contemplation of the wrong doer as being closely and directly
affected by the latter's act."
For a comparative perspective, we may note that the same point was made by
Cardozo J in Wagner v. Int. Ry. Co.:

"Danger invites rescue. The cry of distress is the summons to relief. The law
does not ignore these reactions of the mind in tracing conduct to its
consequences. It recognizes them as normal. It places their effect within the
range of the natural and probable. The wrong that imperils life is a wrong to
the imperiled victim; it is a wrong also to his rescuer."

In spite of what Lord Maugham said in Haynes, a close reading of the two
cases reveals that, if the rescuers had been ordinary persons, with no
responsibility for the safety of life, they would have had no claim because
they would have been considered as having voluntarily assumed the risk of
injury to themselves. This conclusion can be illustrated by Culler v. United
Dairies — where because the court concludes that the horse threatened harm
to no one, the plaintiff was considered a busy-body. In that case, a horse
belonging to the defendants and attached to one of their vans was seen by the
plaintiff
running past his house without the driver. It entered a field immediately
adjoining, and separated by a hedge from the plaintiff's garden, and the
driver, who had followed it was trying to pacify it. But, as it continued very
restive, the driver, who was excited, shouted "Help, help'', whereupon the
plaintiff went over the hedge and attempted to hold the horse, and, in the
process, was injured seriously. There was evidence that the horse had
bolted once before, if not twice. The jury found (a) that the plaintiff did not
freely and voluntarily, with full knowledge of the nature of the risk he ran,
impliedly agree to incurit;
(b) that the defendants were guilty o£ negligence in employing the horse to
draw the van;
(c) and that that negligence was the cause of the accident. Nevertheless the
court held that:

(i) the negligence (if any) of the defendants in employing the horse could not
be said to be the cause of the accident, in as much as there was a novus actus
interveniens namely, the plaintiff's attempt to hold the horse, which he must
have known was attended with risk and therefore that the principle of volenti
non fit injuria applied and precluded plaintiff from recovering,
Scrutton L.J. simply stated:

"If a horse bolts in the highway and a bystander tries to stop it and is injured,
the owner of the horse is under no legal liability to the injured person."

Lord Justice Slesscr added:

"If a man sees his child in great peril in the street from a runaway horse, and,
moved by paternal affection, dashes out and is injured in attempting to stop
the horse, it may in those circumstances, well be said that there is in law no
novus actus interveniens."
Thus, on policy grounds, the common law insisted that the rescuer must be
(a) an expert qualified to rescue the particular situation or (b) a parent
motivated by parental concern (c) a person whose normal duties will require
him or her to intervene before he can be accepted by the courts as belonging
to the class of persons to whom the negligent defendant owes the duty. A
father, for example, who, moved by paternal affection, goes to the aid of his
child would fall within the class of persons to whom the defendant owed the
duty, i.e. the defendant ought reasonably to have contemplated that the
father, if around, would go to the aid of his child.
The turning point against this structural way of thinking and looking at the
problem of duty to rescuers came with Videan v. British Transport
Commission.34 A father, a station-master on leave, jumped from a platform
in an attempt to save his two-year old boy from being run over by a trolley.
The father was killed and the child received injuries. The defendant argued,
in defence, that the child on the track was a trespasser, and not recognized by
the common law. The father was thus the rescuer of a person not in existence
in the eyes of the law and to whom the defendant owed no duty. Secondly,
the substantive station master, if any one existed, to whom a duty was owed
by the defendant, should have gone to the rescue. It was held that it was not
foreseeable that the child would be there, but, being there, it was foreseeable
that the rescuer (father) should attempt to save him. Lord Denning stated that
the right of the rescuer is an independent right and is not derived from that of
the victim. The victim may have been guilty of contributory negligence, as in
Baker v. Hopkins, or the right may be excluded by contractual stipulation —
but still the rescuer can sue. So also the victim may be a trespasser and
excluded on that ground, but still the rescuer can sue.
By this decision, the thrust of the earlier cases was blunted. A person who,
by his negligence, puts another in peril owes a duty to whoever goes in to
rescue provided that the rescuer himself is not acting wantonly; even, if
acting wantonly, this may only go to contribution.
This change in judicial attitude led to the decision in Chadwick v. British
Transport Commission. Two trains collided. Ninety persons were killed and
several injured. The plaintiff had once suffered psycho-neurotic symptoms
but, at the time of this incident, had been living for about sixteen years
without any problems. He went to the rescue and took an active part in the
operations. He suffered anxiety neurosis as a result of participation in the
rescue operations. The defendant admitted that the accident was caused by
negligence for which they were legally responsible, but denied any liability
to the plaintiff. The court held that the defendants were in breach of their
duty to the plaintiff because it was reasonably foreseeable that, if such an
accident occurred, someone would go to the rescue of the people. That his
illness was suffered as a result of that breach. Reasons:

(i) It was reasonably foreseeable in the event of such an accident as had

occurred that someone other than defendant's servants might try to rescue
passengers and might suffer injury in the process. Accordingly, the
defendants owed a duty of care to Chadwick.

(ii) Injury by shock to a rescuer, physically unhurt, was reasonably

foreseeable, and the fact that the risk run by a rescuer was not exactly the
same as that run by a passenger did not deprive the rescuer of his remedy.

(iii)Damages were recoverable for injury by shock notwithstanding that the

shock was not caused by the injured person's fear for his own safety or for
the safety of his children.

(iv)As a man who had lived a normal busy life in the community with no
mental illness for 16 years, there was nothing in Chadwick's personality to
put him outside the ambit of the defendant's contemplation so as to render
the damage suffered by him too remote.
Thus it became admitted that negligently creating a situation of danger may
entail liability to a rescuer for injury sustained by him or her in attempting to
aid a person imperilled. As Cardozo J. put it in Wagner v. Int. Rly. Co.

"The emergency begets the man. The wrongdoer may not have foreseen the
coming of a deliverer. He is as accountable as if he had."
A close reading of the foregoing cases reveals that foreseeability is not the
sole determinant of duty. There are weighty policy considerations at play
here. It is clear that the courts, on policy grounds, want to encourage
altruistic action

Nervous shock
1. Nowhere in the law of negligence is the uncertainty surrounding the
contours of its three component units — duty, breach, damage — more
visible than in the nervous shock cases. Until recently the courts have been
reluctant to give damages for such shocks especially where no physical
injury was found. The reasons for this reluctance (all rooted in policy) may
be summarised as:
a) difficulty in assessing damages;
b) the danger of fictitious claims; and
c) fear of excessive litigation.
2. Two theories have dominated discussions on nervous shock. The first is
the impact theory. This holds that shock is only an extension of physical
injury. Therefore if no physical injury is foreseeable, then there is no liability
for shock. The second is the shock theory. This postulates that "nervous
shock" is a distinct kind of injury. The test for liability is therefore whether it
is reasonably foreseeable that injury by shock would arise from the
defendant's negligence. In Page v. Smith, a majority of the House of Lords
rejected the impact theory and embraced the shock theory. They decided
that, where the shock is caused to a primary victim of the negligence, all that
the law requires is foreseeability of harm, not necessarily of shock. But to
understand the importance of the decision in Page v. Smith, it is useful for us
to examine the evolution of judicial attitude to nervous shock through the
earlier cases.
For the reasons earlier noted, in certain cases of nervous shock, it was held
that no duty of care existed. In Bourhill v. Young4", for example, Young,
while negligently driving his motor-cycle at an excessive speed, collided
with a motor-car and was killed. The appellant was a fish seller who at the
time was about eight months pregnant. She was standing about 45 feet away
from the point where the collision took place, on the blind side of a
stationary tram-car, unloading her basket. She suffered fright resulting in
severe nervous shock which disabled her from carrying on her trade for some
time. She admitted that, at the time, she had no reasonable fear of immediate
bodily injury to herself. When she had her child, it was still-born because of
injuries sustained by her. She sued for negligence. It was held that the action
must fail. The motor-cyclist owed her no duty of care, because she was not
within the area of potential danger within the contemplation of the negligent
conduct. Injury to her, therefore, was not within that which the cyclist oifght
to have reasonably contemplated as the area of potential danger which would
arise as the result of his negligence.
On the general issue of liability for nervous shock in the tort of negligence,
Lord Macmillan explained that:

"It is no longer necessary to consider whether the "infliction of what is called

mental shock may constitute an actionable wrong. The crude view that the
law should take cognizance only of physical injury resulting from actual
impact has been discarded, and it is now well recognized that an action will
lie for injury by shock sustained through the medium of the eye or the ear
without direct contact. The distinction between mental shock and bodily
injury was never a scientific one, for mental shock is presumably in all cases
the result of, or at least accompanied by, some physical disturbance in the
sufferer's system. And a mental shock may have consequences more serious
than those resulting from physical impact. But, in the case of mental shock,
there are elements of greater subtlety than in the case of an ordinary physical
injury and these elements may give rise to debate as to the precise scope of
legal liability.... The duty to take care is the duty to avoid doing or omitting
to do anything the doing or omitting to do which may have as its reasonable
and probable consequence injury to others, and the duty is owed to whom
injury may reasonably and probably be anticipated, if the duty is not
observed. There is no absolute standard of what is reasonable and probable.
It must depend on circumstances and must always be a question of degree."

Lord Wright also noted that:

"This general concept of reasonable foresight as the criterion of negligence

or breach of duly (strict or otherwise) may be criticized as too vague, but
negligence is a fluid principle, which has to be applied to the most diverse
conditions and problems of human life. It is a concrete, not an abstract, idea.
It has to be fitted to the facts of the particular case. ..."

Continuing, Lord Wright stated:

"What is now being considered is the question of liability and this ... must
generally depend on a normal standard of susceptibility. This, it may be said,
is somewhat vague. That is true, but definition involves limitation which it is
desirable to avoid further than is necessary in a principle of law like
negligence which is widely ranging and is still in the stage of development is
here, as elsewhere, a question of what the hypothetical reasonable man,
viewing the position, I suppose, ex post facto, would say it was proper to
foresee. What danger of particular infirmity that would include must depend
on all the circumstances, but generally, I think a reasonably normal
condition, if medical evidence is capable of defining it, would be tire
standard. ..."

In King v. Philips, a taxi-cab driver negligently backed his cab without

looking where he was going and ran into a small boy on a tricycle. His
mother who was in her home 70 to 80 yards away heard his scream, and,
looking out of the window, saw his peril. She suffered nervous shock. The
question was whether she could recover damages on that account. It was held
that she could not recover because no "hypothetical reasonable observer",
(Lord Wright in Bourhill v. Young4 ) could reasonably or probably have
anticipated that injury, either physical or nervous, could have been caused to
her by the backing of the taxi without due attention as to where it was going;
and, accordingly, the driver owed no duty to the plaintiff and was not
negligent towards her. Lord Denning thought the damage too remote.
In addition to the other reasons we have noted for the reluctance of the courts
to allow liability in these cases, we may also observe that it looks like their
reluctance was due to the fact that, as a whole, the law lags behind scientific
knowledge. Yet as early as 1901, in Dulieu v. White, Kennedy J. was willing
to found liability for nervous shock negligently caused, though he expressed
the view that "the shock, where it operates through the mind, must be a
shock which arises from a reasonable fern- of immediate personal injury to
one self." hi this case, the defendants were held liable, when their servant
negligently drove a pair-horse van into the front of a public-house, with
resultant shock and illness to the plaintiff who was standing behind the bar.
She gave birth prematurely in consequence. The reasons why her damages
were held recoverable seem to have been the fact that:
a) she was within the area of potential danger,
b) she took fright out of fear for her own safety, i.e. presence and fright for
one's safety.
But, even before Page v. Smith,49 it seems settled that shock, if reasonably
foreseeable, may give rise to a claim, even though it is not caused by fear for
oneself or one's child. We may recall here that in Chadwick v. B.T.C. the
plaintiff suffered psycho-neurosis and anxiety neurosis after helping in
rescuing many people after the collision of two trains in which 90 people
died and several others were injured. The court held that, even though he was
a volens (volunteer), the Railway Commission owed him a duty of care,
which duty was breached and his illness was suffered as a result of this
breach. This conclusion was because it was reasonably foreseeable that,
when such accidents occur, people would come to rescue the victim and
might be injured in the process.
The result of the cases, or what clearly stands out from the cases, is that it is
nowadays unnecessary for the plaintiff to show that he was himself in danger
of physical impact. Foreseeability of injury from shock is what the law
requires. So the "shock theory" has now assumed ascendancy. Again, the
issue is one of policy. The foreseeability of harm and the defendant's
knowledge of the plaintiff's presence would be sufficient to create a duty.
In their recent decision, Page v. Smith, the English House of Lords has made
an interesting distinction between primary victims and secondary victims of
negligence causing nervous shock. The court held that two different tests
arise in the cases of primary and secondary victims in relation to shock. In
the case of primary victims of an accident who suffer shock the test will be
the same as for physical injury; namely whether the defendant could
reasonably foresee that his conduct would expose the plaintiff to the risk of
personal injury, whether physical or psychiatric. For secondary victims, that
is, persons who were not participants in an accident as Lord Berwick put it,
the test will be whether injury by shock was foreseeable in a person of
normal fortitude. This is a control mechanism introduced as a matter of
policy to limit the number of potential claimants. These control mechanisms
have no place where the plaintiff is a primary victim. As Lord Lloyd
explained, in cases involving nervous shock, it was necessary to distinguish
between the primary victim and secondary victims. In claims by secondary
victims, it may be legitimate to use hindsight in order to be able to apply the
test of reasonable foreseeability at all. However, hindsight has no part to play
where the plaintiff is the primary victim.
The leading case on secondary victims and nervous shock is now Mcloughlin
v. O'Brian. This was a case on appeal.

Facts
The appeal arose from a tragic road accident on October 19, 1973, near
Withersfield, Suffolk. The plaintiff's husband and three of her children were
involved in an accident when their car collided with a lorry driven by the
first defendant and owned by the second. That lorry had been in collision
with another lorry driven by the third defendant and owned by the fourth. It
was admitted that the accident to the car was caused by the defendant's
negligence. As a result of the accident, the husband suffered bruising and
shock; George, aged seventeen, suffered facial and head injuries, cerebral
concussion, fractures of both scapulae and bruising and abrasions; Kathleen,
aged seven, suffered concussion and other injuries; Gillian, aged three, was
so seriously injured that she died almost immediately. At the time, the
plaintiff was at her home about two miles away. An hour or so later, the
accident was reported to her by a neighbour, Mr. Pilgrim, who told her that
he thought George was dying, and did not know the whereabouts of her
husband or the condition of her daughter. He then drove her to
Addenbrooke's hospital, Cambridge. There she saw Michael, a fourth child
not in the accident, who told her that Gillian was dead. She saw through a
corridor window Kathleen crying, with her face out and begrimed with dirt
and oil. She could hear George shouting and screaming. She was taken to her
husband who was sitting with his head in his hands, his shirt hanging off him
and he was covered in mud and oil. He saw his wife and stalled sobbing. She
was then taken to see George; the whole of his left face and side were
covered. He appeared to recognize her and then lapsed into unconsciousness.
Finally, she was taken to Kathleen who had been cleaned up but was too
upset to speak and simply clung to her mother. There could be no doubt that
those circumstances, witnessed by the plaintiff, were distressing in the
extreme and capable of producing an effect going well beyond that of grief
and sorrow.
The plaintiff later brought proceedings against the four defendants for what
was pleaded as severe shock, organic depression and change of personality.
The trial judge was asked to assume that her condition had been caused or
contributed to by shock, as distinct from grief or sorrow and that the plaintiff
was a person of reasonable fortitude.

Decision in the trial court and Court of Appeal

The trial court judge held, however, in a most careful judgment reviewing
the authorities, that the defendants owed no duty of care to her because the
possibility of her suffering injury by nervous shock, in the circumstances,
was not reasonably foreseeable. His judgment was upheld on appeal but not
on the same ground. Lord Justice Stephenson took the view that the
possibility of injury to her by nervous shock was reasonably foreseeable and
that the defendants owed her a duty of care. However, he held that
considerations of policy prevented her from recovering. Lord Justice
Griffiths held that injury by nervous shock to the plaintiff was "readily
foreseeable" but that the defendants owed her no duty of care; the duty was
limited to those on the road nearby. Lord Justice Cumming-Bruce agreed
with both judgments.

Decision in the House of Lords

The critical question in the appeal to the House of Lords was whether a
person in the position of the plaintiff, i.e. a secondary victim — one who was
not present at the scene of grievous injuries to her family but who came upon
them at an interval of time and space, could recover damages for nervous
shock — such shock was now recognized and identifiable as an illness as
any that might be caused by direct physical impact.

Existing law

Lord Wilberforce noted the position on the authorities as they then stood
namely:
1. While damages could not, at common law, be awarded for grief and
sorrow, a claim for damages for nervous shock caused by negligence could
be made without the need of showing direct impact or fear of immediate
personal injuries for oneself.
2. A plaintiff might recover damages for nervous shock brought on by
injury caused not to him or herself but to a near relative or by the fear of
such injury.
3. Subject to paragraph four infra, there was no English case in which a
plaintiff had been able to recover nervous shock damages where the injury to
the near relative occurred out of sight and earshot of the plaintiff. In
Hambrock v. Stokes Bros53 an express distinction was made between shock
caused by what the mother saw with her own eyes and what she might have
been told by bystanders, liability being excluded in the latter case. The crux
of what the House of Lords was called upon to decide, in the case, in the
view of Lord Wilberforce, was whether to allow the latter claim.
4. An extension of the latter case had been made where die plaintiff did not
see or hear the incident but came on its immediate aftermath. In Boardman v.
Sanderson54 the father was within earshot of the accident to his child and
likely to come on the scene; he did so and suffered damage from what he
then saw. In Marshall v. Lionel Enterprises55 the mother was in her home
100 yards away, and on communication by a third party, ran to the scene of
the accident and there suffered shock. Their lordships had to decide whether
to validate these extensions.
5. A remedy on account of nervous shock was given to a man who came to
a serious accident involving many people immediately thereafter and acted
as a rescuer: Chadwick v. British Railways Board56 Shock was caused
neither by fear for himself nor on account of a near relative. The principle of
rescuer cases should be accepted, but the house had to consider whether, and
how far, it could be applied to cases like the present.
Lord Wilberforce continued that throughout these developments, the courts
had proceeded in the traditional manner of the common law from case to
case, on a basis of logical necessity. Unless the law was to draw an arbitrary
line at the point of direct sight and sound, the extension under paragraph 4
above required acceptance in the interests of justice. On the logical
progression in the decided cases, it was hard to see why the present plaintiff
should not succeed. But he noted that he and his colleague Lordships had
been deeply impressed by the arguments of the two Lord Justices in the
Court of Appeal that at the margin, the boundaries of a persons's
responsibility for acts of negligence had to be fixed as a matter of policy.
On the approach of Lord Atkin stating the neighbour principle in Donoghue
v. Stevenson, foreseeability had to be accompanied and limited by the law's
judgment as to persons who ought, according to its standards of value or
justice, to have been in contemplation.

Policy arguments against liability

In Lord Wilberforce's view, the policy arguments against a wider extension
came under four heads: First, it might be said that such extension might lead
to a proliferation of claims and possibly fraudulent claims, to the
establishment of an industry of lawyers and psychiatrists who would
formulate a claim for nervous shock damages for all, or many, road and
industrial accidents. Secondly, it might be claimed that an extension of
liability would be unfair to defendants, as imposing damages out of
proportion to the negligent conduct complained of. In so far as such
defendants were insured, a large additional burden would be placed on
insurers, and ultimately on the insured: road users or employers. Thirdly, to
extend liability beyond the most direct and plain case would greatly increase
evidentiary difficulties and lengthen litigation. And fourthly, as the Court of
Appeal agreed, an extension of the scope of liability ought only to be made
by the legislature, (separation of powers argument!). According to the
learned law lord, just because shock in its nature was capable of affecting a
wide range of people, there remained, a real need for the law to place some
limitation on the extent of admissible claims.

Factors to be taken into account

In his considered view, three elements had to be considered: the class of
persons whose claims should be recognized; the proximity of such- persons
to the accident; and the means by which the shock was caused:
(i) As regards the class of persons, the possible range was between the
closest of family ties - of parent and child, or husband and wile - and the
ordinary bystander. The existing law recognised the claims of the first: it
denied those of the second, either on the basis that such persons had to be
assumed to be possessed of fortitude to enable them to endure the calamities
of modern life, or that the defendants could not be expected to compensate
the world at large. Those positions were justifiable and since the present case
fell within the first class, it was strictly unnecessary to say more. His
lordship thought, however, that other cases involving less close relationships
must be very carefully scrutinised. The closer the tie the greater the claim for
consideration.
(ii) On proximity to the accident, it was obvious that it must be close in
both time and space. After all, it was the fact and consequence of the
defendant's negligence that must be proved to have caused the nervous
shock. Experience had shown that to insist on direct and immediate sight or
hearing would be impractical mid unjust and that under what might be called
the "aftermath" doctrine, one who, from close proximity, came very soon on
the scene should not be excluded. The result in Benson v. Lee was correct
and indeed inescapable. But a strict test of proximity by sight or hearing
should be applied by the courts. (iii)As to communication, there was no case
in which the law had compensated shock brought about by a third party. The
shock must come through sight or hearing of the event or of its immediate
aftermath by the person making the claim (i.e. the plaintiff). Whether some
equivalent of sight or hearing, for example, through simultaneous television,
would suffice might have to be considered. Lord Edmund-Davies, said that
the sole basis on which the Court of Appeal had dismissed the claim was
that of public policy — on the ground of what might be called the
''floodgates" argument. His lordship was unconvinced that the number and
area of claims in shock cases would be substantially increased or enlarged
were the defendants here held liable-.
in the present case, two totally different points arising from the speeches of
two of their lordships called for further attention, both relating to the Court
of Appeal's invoking of public policy. Lord Bridge seemingly doubted that
any regard should have been had to such a consideration, the sole test of
liability being the reasonable foreseeability of injury to the plaintiff through
nervous shock resulting from the defendants' conceded default. And, such
foreseeability having been established, it followed that, in law, no other
course was open to the Court of Appeal than to allow the appeal. Lord
Edmund-Davies could not accept that approach. Nor could his Lordship
agree with what he understood Lord Scarman to say, that public policy had
no relevance to liability to law.
For Lord Edmund-Davies the proposition that "... the policy issue ... is not
justiciable" was as novel as it was startling. So novel that in this appeal it
was never mentioned during the hearing in the house. And startling because
it ran counter to well established law. As Lord Reid had said in British
Railways Board v. Herring ton: "Legal principles cannot solve the problem.
How far occupiers are to be required by law to take steps to safeguard such
children must be a matter of public policy." In accordance with the
authorities, public policy issues were justiciable. As Winfield had said:
"The difficulty of discovering what public policy is at any given moment
certainly does not absolve the bench from the duty of doing so. The judges
are bound to take notice oi' it and of the changes which it undergoes, and it is
immaterial that the question may be one of ethics rather than of law."
In the present case, the Court of Appeal did just that, and they were right in
doing so. But they concluded that public policy required them to dismiss
what they clearly regarded as anotherwise undeniable claim. In that they
were wrong.
Lord Russell said that if the effect, on the wife and mother, of the results of
the defendants' negligence was considered to have been reasonably
foreseeable, his lordship did not see any justification for not finding them
liable in damages therefor. He would not shrink from regarding, in an
appropriate case, that policy was something which might feature in a judicial
decision. In the last analysis, any policy consideration seemed to be rooted in
a fear of floodgates opening. His lordship was not impressed by that fear
certainly not sufficiently to deprive the plaintiff of just compensation for the
reasonably foreseeable damage done to her.
Lord Scarman, accepting Lord Bridge's approach to the law and the
conclusion he reached, also shared the Court of Appeal's anxieties and
differed from that court in that he was persuaded that, in this branch of the
law, it was not for the courts but for the legislature to set limits, if any be
needed, to the law's development. He felt that the present appeal raised
directly a question as to the balance in English law between the functions of
judge and legislature. The distinguishing feature of the common law was
judicial development and formulation of principle. Policy considerations
would have to be weighed; but the objective of judges was the formulation of
principle. And if principle inexorably required a decision which entailed a
degree of policy risk, the court's function was to adjudicate according to
principle, leaving policy curtailment to the judgment of Parliament. If
principle led to results which were thought to be specially unacceptable,
Parliament could legislate to draw a line or map out a new path. In this case,
common law principle required the judges to follow the logic of the
"reasonably foreseeable test" so as in appropriate circumstances, to apply it
untrammeled by spatial, physical, or temporal limits.
But his Lordship was not sure that the result was sociably desirable. He
foresees social and financial problems, if damages for nervous shock should
be made available to persons, other than parents and children, who, without
seeing or hearing the accident, or being present in the immediate aftermath,
suffered nervous shock in consequence of it. There was a powerful case for
legislation such as that enacted in New South Wales and the Australian
Capital Territories.
Why then he asked, should not the courts draw the line, as the Court of
Appeal tried to do in the present case? Simply because the policy issue as to
where to draw the line was not justiciable. His lordship would allow the
appeal for the reasons developed by Lord Bridge.
Lord Bridge.said that the whole area of English law concerning the liability
of a tortfeasor who had negligently killed or physically injured A to pay
damages to B for the psychiatric illness resulting from A's death or injury
stood in urgent need of review. The basic difficulty of the subject arose from
the fact that the crucial answers to the questions it raised lay in the difficult
field of psychiatric medicine. The first hurdle a plaintiff claiming damages of
the kind in question must surmount was to establish that he was suffering,
not merely grief, distress or any other normal emotion, but a positive
psychiatric illness; and must then establish the necessary chain of causation
in fact between his psychiatric illness and the death or injury of one or more
third parties negligently caused by the defendant. The all-important question
was whether the chain of causation, considered ex post facto in the light of
what had happened, was "reasonably foreseeable" by the "reasonable man."
The answer to that depended on what knowledge was to be attributed to tlie
hypothetical reasonable man of the operation of cause and effect in
psychiatric medicine — which was far from being an exact science.
It would seem that the consensus of informed judicial opinion was probably
the best yardstick available to determine whether, in any given
circumstances, the emotional trauma resulting from the death or injury of
third parties, or ex hypothesi attributable to the defendant's negligence, was a
foreseeable cause in law, as well as the actual cause in fact, of the plaintiff's
psychiatric or psychosomatic illness. The question for decision was
whether the law, as a matter of policy, drew a line which exempted from
liability a defendant whose negligent act or omission was actually and
foreseeably the cause of the plaintiff's psychiatric illness. His Lordship
considered the relevant authorities and said that, in approaching the question
whether the law should, as a matter of policy, define the criterion of liability
in negligence for causing psychiatric illness by reference to some factor
other than that of reasonable foreseeability, it was well to remember that
they were concerned only with the question of liability of a defendant who
was ex hypothesi guilty of fault in causing the death, injury or danger which
had in turn triggered off the psychiatric illness.
His Lordship saw no ground for suggesting that lo make the defendant liable
for reasonably foreseeable psychiatric illness caused by his negligence
would be to impose a crushing burden on him out of proportion to his moral
responsibility. The successful claims in this field and the quantum of
damages they would attract were likely to be moderate.
To attempt to draw a line at the further point which any of the decided cases
happened to have reached, and lo say that it was for the legislature, not the
courts, to extend the limits of liability any further, would be an unwarranted
abdication of the court's function of developing and adapting principles of
the common law to changing conditions, in a particular corner of the
common law which exemplified the important and indeed necessary part
which that function had to play. This was an area of the law of negligence
where the court should resist the temptation to try yet once more to freeze
the law in a rigid posture which would deny justice to some who, in the
application of the classic, principles of negligence derived from Donoghue
v. Stevenson, ought to succeed.
The defendant's duty must depend on reasonable foreseeability and must be
adjudicated only on a case by case basis. If asked where the thing was lo
slop, his lordship would answer: "Where in the particular case the good
sense of the judges, enlightened by progressive awareness of mental illness,
decided."
The most important result of this case is that it removes nervous shock in
the case of secondary claimants from any special categorisation in
negligence. This is now dependent on factors of space, time and the
relationship of the plaintiff to the victim as well as the victim's injuries.
These factors are left to the good sense of the judges. However, we must
note the disagreements among the law lords on the role of policy in the
application of the factors.
The English House of Lords followed the analysis of Lord Wilberforce in
the 0'Brian's case in Alcock v. Chief Constable of South Yorkshire, by
taking the view that all relationships based on lies of love and affection are
covered by his "class of persons" category. This extends the category lo all
relationships where it can be established that lies of love and affection exist.
But this does not make the precise identification of the relevant relationships
any easier in the marginal cases. For example, should we include
classmates, school-males, people with whom we fellowship? Does any kind
of amorous relationship qualify - a mistress, a person with whom the
secondary victim is in an adulterous relationship? It is respectfully
submitted that, at the very least relationships which smell of a hint of
immorality should, on policy grounds, be excluded.

PECUNIARY LOSS
In the beginning, the courts maintained that acts which, although they do
foreseeable harm, namely damage another in his financial interests, did not
involve physical injury to his person or property, are not actionable as
negligence.
It may be recalled that in Donoghue v. Stevenson, Lord Atkin had talked
about injury to person or property. Thus, the law as it stood until the 1960s
was that there was no liability for depriving a person of profit, e.g Weller v.
Foot & Mouth Disease Institute.
The policy reasons behind the courts' general reluctance to impose a duty,
where, as a result of negligence, the plaintiff had suffered purely pecuniary
loss, may here be noted:

a) Problems of limiting the extent of liability, or the floodgates fear, e.g., A

fails to deliver machinery to B, a manufacturer — should A be liable to all
B's employees who lose wages as a result of this: see Electrochrome;65 and
Waller's Case; and Cattle v. Stockton Water Works
b) Sometimes the person suffering the loss may be in a better position to
absorb it than the negligent defendant, e.g. Electro chrome.
c) General judicial reluctance to establish liability for unintentional
invasion of economic interests: see Weller v. Fool & Mouth Disease.
d) Difficulty of classifying purely pecuniary loss. A buys an article which
is defective. Generally there would be no liability in torts on the part of the
manufacturer, unless the article has caused damage of a physical nature. But
see: Dutton v. Bagnor Regis. U.D.C.
Flowing from this reluctance, it was maintained, for example, for a long
time that false statements causing pecuniary loss to the plaintiff did not
constitute a cause of action in negligence, but only in deceit or contract. The
courts, it was maintained, were concerned with physical loss or damage to
the person or property and not intangible loss resulting from misstatement.
Thus in Candler v. Crane X'mas; an accountant carelessly prepared a
company's accounts. He knew, at the time, that, this was to be shown to a
prospective investor. The investor, relying on the rosy picture painted in the
accounts invested heavily in the company. Later, the company went into
liquidation and he sought to sue the accountants for negligently preparing
the accounts. It was held by the majority of the Court of Appeal that, absent
a contractual or fiduciary relationship between accountant and the plaintiff,
there would be no liability." This judgment produced one of the most
famous judicial proses of a dissenting judge. Lord Denning, the judge noted:

"... If you read the great cases ... you will find that in each of them the
judges were divided in opinion. On the one side, there were the timorous
souls who were fearful of allowing a new cause of action. On the other side,
there were the bold spirits who were ready to allow if justice so required. It
was fortunate for the common law that the progressive view prevailed. ... I
beg leave to quote those cases and those passages against those who would
emphasise the paramount importance of certainty at the expense of justice.
It needs only a little imagination to see how much the common law would
have suffered if those decisions had gone the other way."

Denning also thought that liability for negligence should not depend on the
nature of the damage (so immaterial to him whether physical injury to life or
property is absent). The primary question is whether a duty exists. See also
on the situation where, according to Lord Denning, a duty of care will exist
for liability for misstatement.
The way was paved for a change in this attitude by the momentous decision
in Hedley Byrne v. Heller & Partners. Suffice it to note here that, by
recognizing liability for pecuniary loss and placing this on the same level as
injury to person or property, this case revolutionized the tort of negligence
in much the same way as Donoghue v. Stevenson had done earlier.
Since then two High Court decisions have allowed recovery for loss of
profit or gain without any damage to person or property.
a) Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp: Here a solicitor
carelessly failed to register an option to purchase a farm. The owner of the
farm later sold it to another, so the plaintiff lost the chance of exercising the
option. Oliver J held that the plaintiffs executor (the plaintiff died at the
time) could recover in tort against the solicitor.
b) Ross v. Counters: A solicitor so negligently executed a will that a
bequest failed. Megary V-C held that the disappointed beneficiary could
recover the value of the bequest from the solicitor. Megary said that the loss
of foreseeable profit should be recoverable only if it was foreseeable to a
specifically identifiable person and not just a member of an indeterminate
group.
Three cases arise from the Hedley Byrne revolution. The first is the case of
S.CM. (U.K.) Ltd. v. W.J. Whitall & Sons Ltd. In that case, the defendants
were building contractors. While rebuilding a boundary wall, one of their
workmen damaged an electric cable owned by the electricity board which
ran alongside the road. The cable supplied electricity to several factories
bordering the road, including the plaintiffs factory. The plaintiffs
manufactured typewriters and copying machines. They suffered particularly
because at the time of the interruption, they had molten materials in their
machines. These materials solidified owing to lack of electric heat. The
company was put to much trouble in getting the machines clear. They had to
strip them down and chip away the solidified material and reassemble the
machines. Some parts of the machines were damaged beyond repair. They
lost the value of these items as well as profit from one full day's production.
The plaintiffs brought this action alleging that the defendants had
negligently damaged the cable thereby causing a seven-hour power failure in
their factory, resulting in damage to materials and machines and
consequential loss. In their amended statement of claim, the plaintiffs
alleged that the defendants were negligent, and that the consequences of
their acts were reasonably foreseeable and that they owed a duty to the
plaintiffs to take reasonable care not to damage the cable. The defendants
denied that they owed any duty of care to the plaintiffs or that they were
negligent. Alternatively, they also argued thai the damages were too remote.
On the preliminary issue of whether, on these facts, the defendants were
liable in law to the plaintiffs for the damage claimed, i.e. whether they owed
the plaintiffs a duty of care, Thesiger J. decided that defendants were liable.
They appealed. The Court of Appeal (Denning M.R.. Winn &. Buckley LJJ)
upheld Thesiger's holding and dismissed the appeal. The Court of Appeal
was of the view that, on the allegations in the amended statement of claim,
(that the defendants knew that the cable supplied current to the factory
owners in the neighbourhood and that, if they damaged the cable, the current
would be cut off and damage would be suffered), the defendants owed the
plaintiffs a duty of care and, accordingly, they were liable for the material
damage and consequent loss of production suffered.
The following extracts from Denning M.R's judgment explains the rationale
behind the appellate court's decision:

"It must be accepted that the contractors were negligent in damaging the
cable and that they ought reasonably to have foreseen that, if they damaged
the cable, the supply of current to factories would be likely to be interfered
with and that the occupiers, such as the plaintiffs, would be likely to suffer
loss and damage, including injury to their property... It is well settled that
when a defendant by his negligence causes physical damage to the person or
property of the plaintiff, in such circumstances that the plaintiff is entitled to
compensation for the physical damage, then he can claim, in addition, for
economic loss consequent on it. Thus a plaintiff who suffers personal
injuries recovers his loss of earnings; and a ship owner, whose ship is sunk
or damaged, recovers for his loss of freight."

"Did the contractors owe a duty of care to the factory owners? I think it
plain that they did. They were working near an electric cable which they
knew supplied current to all the factory owners in the neighbourhood. They
knew that, if they damaged the cable, the current would be cut off and
damage would be suffered by the factory owners. Those simple facts put
them under a duty to take care not to injure the cable: and this was a duty
which they owed to all factory owners in die vicinity. It comes straight
within the principle laid down by Lord Atkin in Donoghue v. Stevenson.
Applying that case, I hold that the contractors are liable for all the material
damage done to the factory owners and any loss of profit consequent
thereon."
"The law is the embodiment of common sense: or, at any rate, it should be.
In actions of negligence, when the plaintiff has suffered no damage to his
person or property, but has only sustained economic loss, the law does not
usually permit him to recover that loss. The reason lies in public policy. It
was first stated by Blackburn J in Cattle v. Stockton Water Works Co.
(1975) L.R. 10 Q.B. 453, 557 and has been repeated many times since. He
gave this illustration: When a mine is flooded by negligence, thousands of
men may be thrown out of work. None of them is injured, but each of them
loses wages. Has each of them a cause of action? He dought not. So here I
would ask: When an electric cable is damaged, many factories may be
stopped from working. Can each of them claim for their loss of profit? I
think not. It is not sensible to saddle losses on this scale onto one sole
contractor. Very often such losses occur without anyone's fault. A mine may
be flooded, or a power failure may occur, by mischance as well as by
negligence. Where it is only mischance, everyone grumbles but puts up with
it. No one dreams of bringing an action for damages. So also when it occurs
by negligence. The risk should be borne by the .whole community who
suffer the losses rather than rest on one pair of shoulders, that is, on one
contractor who." may, or may not, be insured against the risk. There is not
much logic in this but. still it is the law."
He then goes on to explain that damage, when no injury occurs either to
property or person, is denied because it is too remote. He continues:

"I must not be taken, however, as saying that economic loss is always too
remote, There are some exceptional cases when it is the immediate
consequence of the negligence and is recoverable accordingly. Such is the
case when a banker negligently gives a good reference on which a man
extends credit and loses the money. The plaintiff suffers economic loss only,
but it is the immediate - almost, I might say, the intended consequence of the
negligent reference and is recoverable accordingly. Another is when the
defendant by his negligence damages a lorry which is carrying the plaintiffs
goods. The goods themselves are not damaged, but the lorry is so badly
damaged that the goods have to be unloaded and carried forward in some
other vehicle. The goods' owner suffers economic loss only, namely, the
cost of unloading and carriage, but he can recover it from the defendant
because it is immediate and not too remote."
The second case is Electrochrome Ltd. v. Welsh Plastics Ltd."' Here the
plaintiffs and defendants had their factories on the same industrial estate and
were supplied water on the same circuit. A servant of the defendants
negligently drove their lorry and collided with and damaged a fire hydrant
which was near the defendants' factory. Water flowed from the damaged
hydrant and therefore the water supply was cut off at the mains. As a result
of the cutting off of the water supply, the plaintiffs were without water
and this caused the loss of a day's work at their factory (estimated at £29
10s). The main and the hydrant did not belong to the plaintiffs but seemed to
belong to the owners of the industrial estate.
The plaintiffs brought the present action in negligence to recover the amount
of their loss from the defendants. It was held, per Geoffrey Lane J. that the
action did not lie because there was no injury suffered by the plaintiffs or
their property although they suffered damage, i.e. it was pure economic loss.
According to Justice Geoffrey Lane, the duty owed by the defendants not to
negligently damage the hydrant was owed to the owners of the hydrant but
not the plaintiffs. He stated the rationale for his decision as follows:84
"In the case of water being cut off in this manner one can imagine a whole
series, may be hundreds, of actions being brought against the defendants
based on this type of negligence ... the complexity of society would mean in
effect that there might be no end to the concatenation of resulting damage."
Thus, here, duty was denied because of the fear of provoking an endless
chain of claims.
The third case is Spartan Steel &. Alloys Ltd. v. Martin & Co. In that case
the defendants' employees were digging up a road with a power-driven
excavating shovel when they negligently damaged an electric cable which,
to their knowledge, supplied the plaintiffs' factory with electricity. The
plaintiffs were thus without electricity for about fourteen hours, which was
the time it look the Electricity Board to repair the cable. The plaintiffs were
manufacturers of stainless steel. At the time the power was shut off, there
was an arc furnance in which metal was being melted in order to be
converted into ingots. Electricity was needed throughout to maintain the
temperature and melt the metal. When the power was cut off, there was
danger that the metal might solidify in the furnance and do damage to the
lining of the furnance. So the plaintiffs used oxygen to melt the metal and
poured it out of the furnance. But that depreciated the value of the metal,
which was assessed as £368. In addition, if the processing of that particular
metal had been properly completed, the plaintiffs would have made a profit
of £400. Furthermore, during the period of the power cut off, the plaintiffs
would have been able to process four more metals and earned a profit of
£1767. In their action, they sought to claim all these sums as damages
against the defendants for negligence.
The defendants admitted liability for the £368 and reluctantly for the £400,
but denied the claim for £1767. The last sum to them was pure economic
loss which was too remote.
Faulks J. ruled against them and they appealed. The Court of Appeal per
[Denning and Lawton L.J. with Edmund Davies L.J. dissenting (i.e. 2-1)]
held that the appeal should be allowed. The plaintiffs could recover £400 as
damages, as the loss of profit from the metal was foreseeable financial
damage immediately consequential on the foreseeable physical damage to
the metal, but they were not entitled to recover the loss of profit from the
four unprocessed metals due to the negligent interruption of the electricity
supply. Edmund Davies L.J. thought, however, that the appeal should be
dismissed. Where a defendant who owes a duty to a plaintiff breaches that
duty and, as both a direct and a reasonably foreseeable result of that injury,
the plaintiff suffers only economic loss, he is entitled to recover that loss as
damages and, since the plaintiff's loss was both the direct and foreseeable
consequence of the defendant's negligence, they were rightly awarded
damages for their financial loss.
For the last word on pecuniary loss and public policy, let us look at Weller
v. Foot and Mouth Disease Institute.87 In that case the plaintiffs were
auctioneers. The defendants occupied premises where they did experiments
with foot and mouth disease virus. As a result of the escape of virus from the
institute (African virus!), cattle in the area became infected. The Ministry of
Agriculture therefore closed down two markets in the area. During the
closure, the plaintiffs were unable to carry on their business and they
brought their action.
The institute raised a preliminary objection that, even if they were careless
and loss to plaintiffs was foreseeable and they had caused the loss still there
would be no cause of action since failure to make a profit was not damages
in the law, i.e. no duty. The judge upheld this objection. The plaintiffs, case
failed; it was held that the duty of care in this case was owed only to those
whose person or property right be foreseeably injured by the failure to take
care. Widgery J. explained his decision thus:

"It may be observed that if this argument is sound, the defendants- liability-
is likely to extend far beyond the loss suffered by the auctioneers, for in an
agricultural community the escape of foot and mouth disease virus is a
tragedy which can foreseeably affect almost all businesses in that area. The
affected beasts must be slaughtered, as must others to whom the disease may
conceivably have spread. Other farmers are prohibited from moving their
cattle and may be unable to bring them to market at the most profitable time;
transport contractors who make their living by the transport of animals are
out of work; dairymen may go short of milk, and sellers of cattle feed suffer
loss of business. The magnitude of these consequences must not be allowed
to deprive the plaintiffs of their rights, but it emphasizes the importance of
this case."

Thus in the case of pecuniary loss, the law became settled as follows:
a) If the loss is the immediate consequence of the negligence, it is
recoverable.
b) If the loss arises from damage to person or property, it is recoverable.
c) If the loss is consequent upon injury to person or property, it is
recoverable.
In all other cases, the loss is remote and is not recoverable. That is to say
duty is recognised in the first three, but denied otherwise.

CONCLUSION
By way of summary then we may note that the factors taken into account by
the courts in admitting a duly of care are:
1. reference to earlier authorities, i.e. precedent
2. in novel situations, three factors are decisive, namely,
a) reasonable foresight of harm
b) proximate relationship between parties i.e. are they neighbours in law;
and
c) whether it is fair, just and reasonable to impose duty as stated in Caparo.
At the end of the examination of the case law on the rescue, nervous shock
and pecuniary loss cases, what stands out clearly is that certain important
principles have been developed. Nevertheless, at the end of the day, the
existence of a duty of care, in a given circumstance, depends, to a significant
extent, on public policy considerations as perceived by the judges.
The factors which may inhibit imposition of a duty of care are:
a) Distinction between misfeasance and non-feasance.
b) Availability of an alternative remedy,- e.g. under a contract as in Simaan
General Contracting Co. v Pilkington Glass Ltd (No. 2) case or possibility of
judicial review.
c) Unwillingness to undermine established principles of the common law
or equity.
d) No duty recognised previously, i.e absence of precedent (timorous souls)
or where a long line of authority has denied duty in those circumstances.
e) Role of Parliament, i.e. the courts' perception of which institution should
appropriately deal with situation, i.e. where Parliament has intervened to
regulate a particular issue, the courts, as a matter of policy, would be
unwilling to go beyond what Parliament has done by extension of the
common law.
Are there, degrees of a duty of care? See Assalah v. Appiah & Ors. In this
case, the court said that an articulator driver who is entering a main road
from a side street owes a higher duty of care to other road users than a driver
of ordinary vehicles. By this statement the court seemed to be suggesting
that there are degrees of duty of care. This is clearly a misstatement of law
which betrays a certain lack of comfort with the concept of a duty of care.
The judge could only have intended to say that the standard of care to be
expected of such a driver is higher than to be expected of an ordinary driver.
Also see the note on this case by Professor (Mrs.) Mensa-Bonsu in Vol 16
I982-S5 U.G.L.J. LSI where she points out the error.

Negligence
Additional information for readers to note

1. Liability in negligence for acts of third parties: see Smith v. Littlewoods

Organisation Lid!"
2. Lord Templeman in CBS Songs v. Amstrad Consumer Electronics pic.
3. Smith v. Bums; Donoghue v. Stevenson — the not so golden
anniversary.

Nervous shock or psychiatric illness

a) Victorian Rly. Commissioners v. Coulias — no duty for nervous shock
arising from defendant's negligence because not the type of injury normally
arising from negligence.
b) Alcock v. Chief Constable of South Yorkshire, ' adopted Lord
Willberforce's three elements approach in O'Brian for imposing liability in
nervous shock cases as opposed to Lord Bridge's reliance in the same case
on foreseeabilily of harm which alone was said to be inadequate.

Other interesting negligence cases

1. Mckay v. Essex Area Health Authority. ' Is it negligent to give birth at all
to a child? e.g. where parents are so poor they cannot bring him up and he
ends up being wayward!!!
2. Emeh v. Kensington & Chelsea Westminster AHA. Unwanted child (is
the birth of a child whose arrival disrupts family finance a beneficial event
to the parents or detrimental event?
3. Criticism of immunity of banisters from negligence action, Whelan &
Veljanovsky.
Chapter 19

BREACH OF DUTY — STANDARD OF CARE

The second element which the plaintiff in an action for negligence must
prove is that the defendant's conduct amounted to a breach of the duty owed.
Proving this breach involves measuring the defendant's conduct against the
standard required of persons engaging in the activity or conduct in question
by the law.
The standard used for arriving at or resolving the issue of breach is that of
the reasonable man. This involves a balancing of the risks involved in the
activities being used as the basis of the negligent action against other factors
such as, for example, advantages. The standard of care required by the law of
negligence is an objective one.' What is objective for this purpose is
incorporated in the concept of the "reasonable man" — or, as per Tindal C.J.
in Menlove v. Vaughan, "the man of ordinary prudence".
But the point here really is not so much that the law adopts an objective
standard or uses the reasonable man concept to determine when a breach of
duty will be said to have occurred. The important tiling is that, generally, the
courts treat certain personal characteristics of the defendant as irrelevant,
personal characteristics such as age.
In deciding then what the standard of care is and whether it has been
breached, the courts take into account certain key matters or factors:

a) The likelihood o" injury or foreseeability of harm

b) The magnitude o seriousness of the risk or harm
c) The social value of the defendant's conduct or enterprise or the
importance of the activity being engaged in for society or the end to be
achieved.
d) The difficulty or expense involved in averting the foreseeable harm or
taking safety measure i as against the risk.
e) Whether the activity or conduct complies with general and approved
practice. These factors have been outlined in cases such as Kite v. Nolan and
Daborn v. Bath Tramways.
All these factors are assessed as at the time when the harmful conduct
occurred and having regard to the circumstances then obtaining. We shall
now consider these factors one by one.

1. The likelihood of injury

Here the courts consider whether the defendant is engaging in an activity
which is fraught with danger. The more dangerous the activity, the greater
the degree of care required. The point can be illustrated by the decision in
Bolton v. Stone. In that case a person on the side road of residential houses
was hit and injured by a player on a cricket ground abutting on that highway.
The ground was enclosed on that side by a seven-feet fence,
the top of which, owing to a slope, stood seventeen feet above the level of
the pitch. The wicket from which the ball was hit was about 78 yards from
this fence and 100 yards from the place where the injury occurred. There was
evidence that while over a period of years balls have been struck over the
fence on very rare occasions (6 in 28 years), the hit now in question was
altogether exceptional. It was held that the members of the club were not
liable in damages to the injured person whether on the ground of negligence
or nuisance. Lord Porter put the principle succinctly thus:

"... in order that the act may be negligent there must not only be a reasonable
possibility of its happening, but also of injury being caused, hi the words of
lord Thankerton in Bourhill v. Young the duty is to exercise such reasonable
care as will avoid the risk of injury to such persons as he can reasonably
foresee might be injured by failure to exercise such reasonable care. ... It is
not enough that the event be such as can reasonably be foreseen; the further
result that injury is likely lo follow must also be such as a reasonable man
would contemplate, before he can be convicted of actionable negligence. Nor
is the remote possibility of injury occurring enough; there must be sufficient
probability to lead a reasonable man to anticipate it."

So, in principle, a person cannot be said to have breached his duty in respect
of an injury
which is so unlikely that the reasonable man will not provide against it.

2. The magnitude or seriousness of the risk

The law does not require the highest possible degree of care, but that which
is commensurate with, inter alia, the seriousness of injury risked. This
depends on the consequences of the activity in question. Thus, in Paris v.
Stepney Borough Council,8 it was held that in the case of a workman
suffering to the employer's knowledge, from a disability which, though it did
not increase the risk of an accident occurring, did increase the risk of serious
injury if an accident should befall him, the special risk of injury is a relevant
consideration in determining the precautions which the employer should take
in the fulfilment of the duty of care which he owes to the workman.

3. The importance or social value of the activity engaged in or the end to

be achieved
In deciding whether the defendant is in breach, the courts consider the social
value or importance of the conduct, enterprise or activity engaged in. Where
the object to be achieved is of national importance or societal benefit, the
courts are minded to lower the standard of care. In Daborn v. Bath
Tramway,D was driving an ambulance with a left-hand drive and with one
driving minor on the left hand side attached to the windscreen. The
ambulance was completely shut in at the back so that D was unable to see
anything close behind her. On the back of the ambulance, a large warning
notice was painted: "Caution - Left hand drive - No signals." D, unaware of
the fact that there was a motor car behind her, made all the necessary signs
and turned to the right in the process of which an omnibus collided with her
ambulance and injured her. She sued the driver and the employers of the
omnibus in negligence and the question was whether she was negligent
herself. It was held that, upon the facts, the omnibus driver was negligent.
There was no negligence on D's pail because she had given the correct hand
signals before starting to turn. Per Asquith L.J. at 336:

"In determining whether a party is negligent, the standard of reasonable care

is that which is reasonably to be demanded in the circumstances. A relevant
circumstance to take into account may be the importance of the end to be
served by behaving in this way or in that. As has often been pointed out, if
all the trains in this country were restricted to a speed of 5 miles an hour,
there would be fewer accidents, but our national life would be intolerably
slowed down. The purpose to be served, if sufficiently important, justifies
the assumption of abnormal risk. ... In considering whether reasonable care
has been observed, one must balance the risk against the consequences of not
assuming that risk."

He then concluded that, on such a balance, the plaintiff had not been
negligent.
Again in Walt v. Hertfordshire C.C.11 a fireman was injured by lifting-gear
(jack) while travelling in a lorry not specially fitted for carrying the gear to
an emergency where a woman was trapped under a heavy vehicle. It was
held that, though the fire authorities were under a duty to provide proper
appliances and to take reasonable care to avoid exposing their firemer to
unnecessary risks, they were not negligent in requiring the firemen to take
abnom al risks which they were ready to take in order to save life and limb.
Per Denning L.J.:1"
"It is well set led that in measuring due care you must balance the risk
against the measures necessary to eliminate the risk. To that proposition
there ought to be added this: you must balance the risk against the end to be
achieved."
In these cases, the law's attitude clearly is that necessity may justify the
taking of greater risk, i.e. a lower standard of care. As Lord Justice Asquith
puts it in Daboni v. Bath Tramway, one must balance the risk against the
consequences of not taking it.

4. Expenses involved in safety measures as against the risk

Here a varying standard obtains. In the case of very great risk which no
precautions can substantially reduce, the duty of care may be discharged only
by ceasing the dangerous operations altogether. But where the risk is slight,
slight precautions will suffice. The point is discussed in the case of Latimer
v. A.E.C. Ltd.14 During an unusually heavy rainstorm, the floors of a large
factory were flooded and an oily cooling mixture, normally contained in a
channel in the floor, along which it was pumped to machinery, rose and
mixed with the flood waters, so that, when they subsided, the floor became
slippery. So far as supplies permitted, sawdust was spread on the floor, but
some areas were left untreated because the company run out of saw dust. A
workman, working in a gangway which had not been treated with sawdust,
was attempting to load a heavy barrel on to a trolley when he slipped and
injured his ankle. He brought an action against his employers, claiming
damages in respect of his injuries. It was held: (a) that the employers were
not negligent, as they had done all a reasonable employer could be expected
to do for the safety of their servants, having regard to the degree of risk; and
(b) there was no breach of statutory duty since the floor was structurally
sound and could not be said not to be properly maintained because it was in a
transient and exceptional condition of being wet and oily; whether such
temporary inefficiency constituted a breach of a duty was a question of
degree. So the workman's action failed.

5. Compliance with general and approved practice

Since the standard of care is determined by reference to community
valuations, considerable evidentiary weight is attached to whether the
defendant's conduct conformed to standard practices accepted as normal and
general by other members of the community in similar circumstances. The
defendant, thus, may be able to escape liability by showing that his conduct
in the circumstances accorded with accepted community practice, i.e. that he
had followed the usual and approved practice. However, he must show that
the approved practice itself is reasonable, for it has been said: "Neglect of
duty does not cease by repetition to be neglect of duty," per Lord Tomlin in
Bank of Montreal v. Dominion Guarantee Co. The common practice itself
may be condemned as negligent, if unreasonable.
The determination of the reasonableness or otherwise of the conduct is made
based on circumstances prevailing at the time it was engaged in. Thus in Roe
v. Minister of Health, Lord Denning said: "We must not look at the 1947
accident with 1954 spectacles. We must not condemn as negligence that
which is only misadventure." See also Thompson v. Smith Shiprepairers Ltd.
The courts also make allowances for the existence of differing views within
professions. The courts will not choose between them. They will simply
determine whether the defendant's conduct conforms to the demands of a
school of thought within the profession.
In engaging in this balancing exercise, the courts, as has already been
indicated, use the yardstick of the reasonable man.
Who is the "reasonable man"?
The standards which the law requires a person to attain must be objectively
established. A person will be regarded as negligent, if he fails to act
according

if it is more difficult for him. as an individual, to do so than to

others. The reason is that we are all entitled to expect a certain level
of protection from the acts of others. So the concept of the
reasonable man does two things:
a) it judges whether the defendant was careless: but
b) it also defines the level of safety a plaintiff is entitled to
expect.
This infuses social judgment into the negligence process.
We may recall the objectivity of the test for determining breach of
duty or the irrelevance of the idiosyncracies of individual
defendants. The reasonable man is at the heart of this objective test.
He is said to be the model of the standard to which all persons are
required to conform. He is the embodiment of all the qualities
which we demand of the good citizen (a better person than
probably any single one of us!). This means that individuals are
often held guilty of legal fault for failing to live up to a standard
which, as a matter of fact, they cannot meet.
The reasonable man's standard, then, is. in a sense, a certain
average of conduct which sacrifices the peculiarities, generally, of
the individual defendant. Thus, Lord Macmillan in Glasgow Corpn.
v. Muir, said that the standard of the reasonable man eliminates the
personal equation and is independent of the idiosyncracies of the
particular person whose conduct is in question. The reasonable man
has been described variously in the books and learned journals. A
sample follows.

"He is the man on the Madina bus. Or the man who comes home in
the evening, hugs his children, listens attentively to their school
stories etc. He is the man who represents the greatness of mankind.
But we must remember he is just a variable."

In some sense also, we might say the reasonable man is a slippery

fellow, not easy to identify. Not surprising, the nature of the
reasonable man has engaged the text-writers over the years.
A.P. Herbert in his book The Uncommon Law says of him:

"Devoid, in short of any human weakness, with not a single saving

vice, sans prejudice, procrastination, ill-nature, avarice, and
absence of mind, as careful for his own safety as he is for that of
others, this excellent but odious creature stands like a monument in
our courts of justice, vainly appealing to his fellow citizens to order
their lives after his own example."
The reasonable man is therefore not equal to the average man. Or
as is often also said the reasonable man adapts himself to the
changing world, the unreasonable man tries to change the world to
suit himself. Thus the question whether A's conduct falls short of
what is expected of him is determined according to the reasonable
man who is a reflection, as an abstraction of law, of the objective
community ideal. The individual's moral notions and qualities,
like courage, self-control and will-power, are irrelevant, whether
higher or lower.
Why the objective test, we may ask? Holmes offers the following
explanation for this objective test in his book The Common Man:

"... the law does not attempt to see men as God sees them, for more
than one sufficient reason ... If, for instance, a man is born hasty
and awkward, is always having accidents and hurting himself or his
neighbours, no doubt his congenital defects will be allowed for in
the courts of Heaven, but his slips are no less troublesome to his
neighbours than if they sprang from some guilty neglect."

And as Lord Macmillan said in Glasgow Corpn.v. Muir:

"Some persons are by nature unduly timorous and imagine every

path beset with lions; others, of more robust temperament, fail to
foresee or nonchalantly disregard even the most obvious dangers.
The reasonable man is presumed to be free from over-apprehension
and from over-confidence."
Though objective, the reasonable man's test allows for certain
exceptions to the extent to which the personal equations of the
defendant are irrelevant in deciding whether his conduct in the
circumstances is negligent or not. In McHale v. Watson, the High
Court of Australia held that the standard to be applied to a child is
the standard for a child of corresponding age. But the standard
remained objective. So that the fact that the particular child is slow,
absent-minded etc., is irrelevant.
A similar point was made in Yachuck v. Oliver Blais where the
court said that in the case of a child, the standard to be used is that
of "a normal boy of his age and intelligence." The infant appellant,
nine years of age (accompanied by his younger brother, seven years
of age) made false representations to an employee at the
respondent's gasoline station and had five cents gasoline sold to
him. They were going to use it for an Indian war dance they had
seen on television. While in the process, he got badly burnt and
sued the respondents for damages for negligence. It was held that
the injuries suffered by the infant appellant must be attributed
solely to the negligence of the respondent's employee and that, on
the facts, contributory negligence would not be imputed to the
infant appellant. The negligence of the respondent's employee
consisted in putting into the hands of the small boy who, on the
evidence, was no more capable of taking care of himself in the
circumstances in which he was placed than a normal boy of his age
might be expected to be, and who had no knowledge of the
peculiarly dangerous explosive quality of gasoline, a dangerous
substance with which a reasonable man, taking thought, would
have foreseen that the child was likely to do himself an injury. To
put a highly inflammable substance into the hands of a small boy
was to subject him to temptation and the risk of injury, and that
was no less true if the boy had resorted to deceit to overcome the
supplier's scruples.
Breach of Duty - Standard of Care
But if a child engages in adult games, then he or she has to measure
up to the skills of a reasonable adult engaging in those activities,
i.e. the standard of care of an adult. Persons who acquire certain
skills must reasonably attain the standard required of that skill or
profession. It is no defence then to argue that one acted lo the best
of his ability, if that falls below the standard required by that skill.
In Roe v. Minister of Health, the anaesthetist was held not liable
because he had shown normal competence. Doctors must conform
to the level of skill of a reasonable doctor not that of the man on the
Madina trotro. [Cf. Wells v. Cooper; — degree of care of
reasonably competent carpenter; Condon v. Blast — higher degree
of care expected of footballer from a higher league.
By way of summary then, we must remember that the standard of
the reasonable man is a rough approximation of prevailing social
morality, ll does not depend on the slate of mind in the tortfeasor.
An act which is intended by the doer lo be beneficial, or which is
believed by him to be harmless is nevertheless negligent where a
reasonable man would have recognised the dangers and abstained
from the act or acted differently. The reasonable man's qualities are
partly derived from common experience and practice, and partly
from the idealisation of the norms of social behaviour.

What, in summary then is the role or contribution of the reasonable

man's test to the action in negligence?

Three contributions mainly:

a) By preferring an objective standard of judging behaviour, the
law avoids the invidious task of having to scrutinize each specific
defendant's subjective capacity - the law is content to judge merely
the external manifestations of the defendant's conduct by asking
whether it measures up to the norm set by the reasonable man —
plugging a major escape route.
b) The reasonable man's test furnishes a means for keeping the
standard of care sufficiently flexible to be applied to different
factual situations, climes, ages, cultures etc.
c) The reasonable man's formula enables a large dose of "grass-
root" sentiment to be injected into the daily administration of the
law by linking the legal standard of care to accepted community
standards and evaluations and to common sense. This allows the
rules of conduct to remain adjustable to changing social patterns,
reflections and judgment.
EVIDENCE AND PROCEDURE IN NEGLIGENCE: Res ipsa
loquitur

In an ordinary negligence suit, the burden of showing that the

defendant breached the duty he owed or the plaintiff was injured
because the defendant failed to measure up to the standard of care
required lies on the plaintiff or he who alleges. But, in certain
cases, it is thought unfair to ask the plaintiff to provide this proof
because somebody else (i.e. the defendant) is in a better position to
explain what happened. Those situations where fairness requires
that the defendant, rather than the plaintiff, should be called upon
to explain what happened are described as "res ipsa loquitur — the
thing speaks for itself (literally)." That is to say, in some
circumstances, the mere fact that an accident occurs raises an
inference of negligence against the defendant. Then we say the
occurrence tells its own story, e.g. a barrel of flour that falls out of
a warehouse on top of a passer-by in the street is more consistent
with negligence on the part of the warehouseman than any other
explanation: see Byrne v. Boadle. This common sense view of
things has become complicated because of the use of a Latin
phrase to express it: Res ipsa loquitur.
The incident which calls the maxim into play must be such as
raises three triggers:
1. That the incident was caused by the breach by somebody of a
duty of care to plaintiff
2. That the defendant was that somebody
3. No explanation must be forthcoming from the defendant.
These factors were laid down in Scott v. London & Docks Co. In
Scott v. The London and St. Katherine Docks Co., the plaintiff, a
customs officer while near the door of the defendant's warehouse
was injured by some sugar bags falling on him. The judge directed
the jury to find a verdict for the defendant on the grounds of lack
of evidence of negligence by the plaintiff, who called no evidence.
On appeal, it was held, without reference to the maxim, that the
plaintiff must succeed where: (1) the thing causing damage is
shown to be under the management of the defendant or his
servants; (2) the accident is such as in the ordinary course of
things does not happen if those who have the management of the
thing use proper care; and (3) where there is absence of
explanation by the defendant.
This has since been known as the res ipsa loquitur rule or
principle. It is not a principle of substantive law but a rule of
evidence, an expression which is convenient to apply to those
circumstances in which a plaintiff in negligence discharges his
task of establishing want of care on the part of the defendant
without having to prove any specific negligent act or omission by
the defendant. In such cases where the three conditions in Scott v.
London and St. Katherine Docks Co. exist, then there is a prima
facie case of breach.
The maxim is dependent on the absence of explanation from the
defendant. The law says that if there is proof of the relevant facts
before the court then there will be no need for invoking the
doctrine. This means we cannot invoke the maxim where the facts
are sufficiently known. The point is made in Barkway v. S. W.
Transport Co. Ltd.
In that case, the plaintiff was injured when the defendants' bus
veered across the road and fell over an embankment. The
defendants called evidence to establish that the accident was the
result of speed and defective tyres. The court held that, as the
cause of the accident was known, res ipsa loquitur had no
application, but found the defendants were liable as negligence
was established on the facts.
The explanation however must be "exact." This means that, where
there is an explanation, for the defendant to escape liability, he
must, from the explanation, show he was not in breach of his duty
of care. This may be illustrated by the decision in Mbadiwe v.
Yaya — the plaintiff had parked his car to the left of the road. The
defendant's (driver) lorry ran into the rear of it. The driver gave
evidence that the other lorry was badly parked and that he would
have hit the gate of the bridge, if he had not hit the other car. A
mechanic gave evidence that the accident was due to brake failure
as a result of a loose nut. It was held that the accident raised a
presumption of negligence and the onus was on the defendant to
disprove negligence, but he failed to discharge this. His admission
that, if he did not hit the truck, he would have hit the bridge was
evidence that there was room enough to pass by the car but he
preferred to hit it. The explanation of brake failure was
unreasonable. This ruling was applied in the case of Adjei Yeboah.
The second condition for the application of the rule is that the
instrumentality causing the accident must be within the exclusive
control of the defendant. Control does not mean actual control
only but also the right and opportunity to control. Thus, where A
gives his car to B, and B parks it outside unattended and it moves
to damage the House of C, then C can rely on res ipsa loquitur in a
suit in negligence against A: see Parker v. Miller. In Ude v.
Bonjut— the defendant had left his house to his girlfriend and
others and traveled. Those in charge left a tap on and water
overflowed and ran into and damaged the goods of the plaintiff
whose shop was downstairs. The courts held that the plaintiff had
no means of explaining how the accident occurred but the
defendant had.
The onus of proof was on the defendant, there being evidence that
the accident had been caused by negligence on the part of someone
left behind in occupation for which he was responsible. Thus,
where the plaintiff cannot point to the one or any of the servants of
the defendant who is in control, the rule will be invoked so as to
make the defendant vicariously liable.
The third requirement is that the harm must be of such a kind as
does not ordinarily happen if proper care is taken. The courts have
applied the maxim to things falling from the sky as in Scott v.
London & St. Katherine Docks Co. Ltd., or accidents resulting
from defective machines as in Mbadiwe v. Yaya or accidents
from apparatus or vehicles- Sochaki v. Sas- In the last case an
ordinary domestic ire was left unattended and furniture in the
room caught fire. It was held that res ipsa loquitur did not apply
because everybody knows that fires occur through accidents which
happen without negligence on anybody's part.
Should the plaintiff specifically plead res ipsa loquitur'? In Nelson
v. Klutse the applicant, a police corporal, lived in Tema and
commuted to Accra. While travelling in a Mercedes Benz bus to
Accra on this occasion, the bus, running on its right side, was hit
by a truck driven by the defendant Kofi Klutse. Many persons
(eighteen), including the applicant were injured while one person
died. The applicant claimed damages for injuries sustained and
judgment was given in her favour. This decision was reversed by a
majority judgment of the Supreme Court. The applicant's claim at
the High Court was negligence and the Supreme Court held that
she should have established the particulars of negligence, and,
having failed to do so, she could not rely on res ipsa loquitur. The
applicant applied for a review against the majority decision. And
the review court held, reversing the ordinary panel, that, to rely on
the maxim, it was not always necessary that it should be
specifically pleaded, but the facts, from which it is intended that
the presumption should be drawn, must be pleaded.
Th s case is important for the circumstances in which the maxim is
invoked. The case decided that failure to plead the maxim is not
fatal to a claim. So long as the pleadings show clearly that the
doctrine of res ipsa loquitur is to be invoked then that is sufficient.
That is to say "Fair notice is the case which has to be met so that
the opposing party may direct his evidence to the issue disclosed
by them." (Lord Norman). Thus the pleadings must give "fair
notice" to the defendant that the maxim is to be invoked and where
counsel is in doubt as to whether his pleadings disclose the
invocation of the doctrine then he is wise to plead it specifically.
As Dr. Fiadjoe pointed out,40 if this is not done as in the decision
in Nelson v. Klutse the distinction between res ipsa loquitur and
straight negligence is blurred. According to Dr. Fiadjoe, in Nelson
v. Klutse, die pleadings of the plaintiff did not give "fair notice" to
the defendants. The full bench of the Court therefore erred in
holding otherwise. But Obeng Manu does not agree with Dr.
Fiadjoe. For him, this case shows the proper nature and role of the
maxim, namely a label which describes the situations where the
facts on the ground justify an inference of negligence by the
defendants. Viewed from this perspective, it did not matter
whether the plaintiff specifically, pleaded reliance on the maxim.
The review decision has been applied in subsequent cases. An
example is the case of Asante Kramo v. A-G. Here the plaintiff
was a nineteen year old housewife. She was referred to the
Okomfo Anokye Hospital with a ruptured ectopic pregnancy. She
was operated upon. In the course of the operations, her right aim
became swollen and gangrenous, following blood transfusion
administered to her by the nursing staff through a vein in the right
arm. The aim was later amputated to save her life. She brought the
present action against the State for damages for negligence on the
part of the hospital staff. She gave particulars of negligence in her
claim and also pleaded reliance on res ipsa loquitur. She failed to
prove the particulars but the trial judge found that the proven facts
raised a presumption of negligence. Since there was no
explanation from the defendant, judgment was given in her favour.
The trial judge (Taylor J as he then was) said, among others, that,
in actions founded on res ipsa loquitur, it was unnecessary to plead
res ipsa loquitur. What the plaintiff must plead are facts which,
when taken together, lead to an inference of negligence.

What is the effect legally of the invocation of the maxim?

The view is held that the maxim does not state a principle of law.
Lord Shaw observed that: if that phrase res ipsa loquitur had not
been in Latin nobody could have called it a principle. It is a rule of
evidence. Its effect, however, has been an issue of disagreement
between the English and Australian judicial authorities.
The English view is that a decision that res ipsa loquitur applies
entitles the plaintiff to judgment unless the defendant can
exonerate himself by either giving a true explanation of how the
accident actually occurred without negligence on his part, or by
proving that, in all the circumstances, he has exercised due
diligence. Thus, the English view shifts the legal burden of proof
on the defendant; so that where there are alternative explanations,
he must show that, either the accident was due to a specific cause
which absolves him of negligence, or, that he had used all
reasonable care in the matter. The English view was applied in
Decker v. Atta. " In that case, a lorry driven by the appellant
overturned and seriously injured the respondent who was carried
as a fare passenger. At the trial, the respondent relied on res ipsa
loquitur. The appellants argued that the truck was roadworthy and
that the accident was due to a sudden breaking of the shaft and the
corrugated nature of the road. It was held that the facts raised a
prima facie case of negligence, and, in rebutting this, there was a
burden on the appellant to how that the vehicle was in a good and
roadworthy condition at the time of the accident. Apaioo and
Sowah JJ.A. (as they were) thought that the nature of the roads put
a greater obligation on the appellant to show by evidence the steps
he had taken to make the vehicle withstand
the road; and that he should not have taken die journey at all
knowing the road was in that state of disrepair. I
The Australian view is that where the maxim applies the onus on
the defendant would be to produce or offer a reasonable
explanation equally consistent with negligence or no negligence.
As long as he gives an explanation which is reasonable, the burden
of proving negligence and that the defendant's negligence caused
the accident, still rests on the plaintiff. Here the burden of proof on
the defendant is evidential only. The legal burden remains on the
plaintiff throughout the trial.
The Australian approach is more persuasive, given the principle
that proof of liability in negligence is on the plaintiff. On the
English view, the whole onus is shifted onto the defendant and,
therefore, if he cannot absolutely prove innocence, then he is
liable. The liability is brought close to strict liability.
In Ghana, the English view — the legal burden of proof is on the
defendant — is accepted. The case of Decker v. Atta tried to
grapple with the two views. In Dumgya v. S.C.C., also the English
view was generally accepted. In this case, the walls I of the
Kumasi Sports Stadium collapsed during a football match and one
Kofi Asabere was killed. Evidence showed that the wall collapsed
because only one pillar supported it. The defendants denied
negligence and pleaded that they had taken all reasonable care.
The plaintiffs relied on res ipsa loquitur. The trial judge held that
res ipsa loquitur did not apply, as the cause of death was known.
On appeal, it was held that the evidence showed a prima facie case
of negligence which the defendants failed to rebut; and since the
accident occurred from want of care, reliance could be placed on
res ipsa loquitur in the absence of further evidence. The appellate
court noted that the walls of a Sports Stadium do not normally
collapse if those in control used proper care. Res ipsa loquitur thus
applied.
For additional discussion, see Lord Pearson in Henderson v.
Jenkins on distinction between legal burden and evidential burden
and Barkway v. South Wales Transport Co. Ltd.
Chapter 20

RESULTANT DAMAGE
CAUSATION AND REMOTENESS OF DAMAGE

Some preliminary issues

So far we have discussed two of the constituent elements of the tort
of negligence, namely duty of care and breach of that duty. In this
chapter, we will examine the third and final element. As Lord
Hoffman recently put it:
: damage, that
"……A claim in tort based on negligence is incomplete without
proof of damage, in this sense is an abstract concept of being
worse off, physically or economically, compensation is an
appropriate remedy. It does not mean simply a physical change
which is consistent with making one better, as in the case of a
successful operation, with being neutral, having no perceptible
effect upon one's health or capability. How much worse off must
one be? An action for compensation should not be set in motion on
account trivial injury. DE MINIMIS NON CURAT LEX...."
This third requirement for a negligence action is commonly
expressed by saying that the plaintiff must have suffered damage as
a result of the defendant's breach. This deceptively simple
statement raises many complex questions which can be put into
three main heads:

(a) There is the question whether indeed the plaintiffs damage was
"the result of the defendant's negligence, i.e. whether the defendant
in fact caused the damage. This is referred to by American lawyers
as "cause in fact." Usually answered by the "substantial factor" test
in the U.S., and, elsewhere, by the "but for' test. Thus, in
determining resultant damage, the first screening of all claims in
negligence involves establishing whether the defendant's tortious
conduct was at all a causal factor in what the plaintiff has suffered
— as indicated above, the most widely used test is the but for test
(i.e. would that injury not have happened but for the defendant's
conduct?). If the injury would have happened m spits of his
conduct, then, from the causal point of view, the defendant's
conduct is irrelevant, e.g. failure to provide adequate life-boats in a
ship as in the case of the famous Titanic boat — if the ship listed so
badly that no boats could have been lowered in any event then, if
the passengers die, their death could not have been caused by the
failure. The but for test is generally fool proof except when another
cause is present which by itself could have caused the accident, e.g.
when two fires merge. It introduces a certain amount of speculation
into the equation. For how can we say with assurance that:

(i) the pregnant woman would not have given birth to a deformed
child but for the injury she received in a collision. (Bourhill v.
Young); or
(ii) a motorist who exceeds the speed limit of 30 kph and drives at
35 kph and is unable to prevent himself from hitting a small boy
who darts across his path, would not have done so but for the extra
speed. (King v. Philips).
Multiple causes particularly bring out the limitations of the but for
test. Take the following example from Atiyah's Accidents,
Compensation and the Law, at p. 99: "A & B negligently set fire
separately which unite to destroy C's house." Clearly the but for test
would be difficult to apply here. See McGee v. National Coal
Board and Wilsher v. Essex Area Health Authority.' And for
successive causes look at Baker v. Willoughby; Jobling v.
Associated Dairies and Evans. To establish the relevant causal
connection, the plaintiff has to show that, on a balance of
probabilities, the defendant's breach caused the loss which he
suffered. It must be stressed, however, that causation is to be
understood as the man in the street, that is in a non-technical sense.
(b) The second set of questions relates to a number of issues which
all concern the attempt to find some restrictions on liability for
negligence. Ghanaian law, like English law, generally discusses
these questions under the heading, Remoteness of Damage, though
many of the issues are also discussed under duty of care. American
lawyers generally talk of "proximate cause", though they are now
clearly unanimous in thinking that this has nothing to do with
"cause in fact."
(c) The third type of problem concerns the assessment of damages,
i.e. putting a money value on the loss, damage or injury.

Resultant Damage
There are two schools of thought as far as the question of damage
which completes the ne8ugcnce trio (formula), is concerned, and
for which the defendant must therefore be held liable.
The first school (or test), extends liability to all physiological
consequences whether foreseeable or not. This has exerted the
strongest appeal in personal injury cases. According to this view,
once the defendant is proved to have been in breach of the of Care)
ne s liable for all the direct consequences of that breach. The one
who has was whole thing in motion" has a lesser claim to sympathy
than his innocent victim; once his conduct is unreasonable, the
relevance of foreseeability as a test for liability is finished
(exhausted). This school holds that foreseeability is necessary only
for the determination of the question of liability, i.e. breach.
"Foreseeability goes to culpability not compensation" per Lord
Sumner in Well-Blundell v. Stephens.
Directness here includes all consequences flowing in an
uninterrupted sequence, this is without the intervention of "new
forces" — human or natural. Therefore, according to this school,
the fact that the defendant could not foresee a particular
consequence of his act is immaterial, if it was a direct consequence.

The case usually cited as the authority for this test (indeed its
progenitor) is Re Polemis. Messrs Polemis and Boyazides, the
owners of the Greek Steamship Thrasyvoulos, chartered the ship to
Furness, Withy and Co. who loaded in its hold in tins a quantity of
petrol. During the voyage, the tins leaked and, in consequence,
there was a considerable quantity of petrol vapour in the hold. At
Casablanca in Morocco, it became necessary for the stevedores,
servants of the charterers, to shift some of the cases. For this
purpose, they placed a number of heavy planks at the end of the
hatchway lor use as a platform. While a sling containing the cases
was being hoisted, the rope was negligently allowed to come into
contact with these planks and to displace one of them, which Jell
into the hold. The falling plank caused an ignition of the petrol
vapour and there was an outbreak of fire which completely
destroyed the ship.
The shipowners claimed the value of the ship from the charterers.
The chatterers, in their defence, relied on a clause in the charter-
party winch exempted them from liability for perils caused by "act
of God, the King's enemies, loss or damage from fire on board ..."
The owners replied by saying that the clause was inoperative where
the peril was caused by the negligence either of the charterers or
their servants. This issue was referred to arbitration. Therefore, at
first sight, it might seem that the claim had little or nothing to do
with the tort of negligence. The claim was upon a contract and the
issue was whether the negligence (in the sense of carelessness) of
the defendants disentitled them from relying on the exemption
clause. But the chatterers expressly pleaded that the damage was
loo remote and the case was regarded as one of tort before the court
of first instance, Sankey J (as he then was) and the Court of Appeal.
The arbitrators found as a fact that the causing of the spark could
not reasonably have been anticipated from the falling of the plank,
though some damage to the ship might reasonably have been
anticipated. On this finding, the Court of Appeal unanimously held
the charterers liable to the owners for the loss. The court was of the
view that the charterers were negligent in letting the plank fall into
the hold. Being negligent, they were liable for all the direct
consequences of that negligence, though, in nature and magnitude,
those consequences were such as no reasonable man would have
anticipated. This is referred to as the Polemis Rule.
The second school holds that foresceabilily is the test for
culpability as well as compensation. According to this view, it is
not sufficient that some injury to the plaintiff was foreseeable. The
"particular injury" for which a claim is made must satisfy the same
test, standing on its own fooling; that is the injury itself must be
reasonably foreseeable. This is referred to generally as the Wagon
Mound Rule. The Rule arose out of the decision in the Wagon
Mound Case."

Wagon Mound
The appellants were charterers of an oil-burning vessel which was
taking in bunkering oil in Sydney Harbour. Through the
carelessness of their servants, a large quantity of the oil was spilled
into the harbour. The oil was carried by wind and tide to the wharf
owned by the respondents, shipbuilders and ship repairers, who
were at the time refilling a vessel in the wharf. job for which they
were using electric and oxy-acetylene welding equipment.
Some cotton waste or rag on a piece of debris floating on the oil
underneath the wharf was set on fire by molten metal falling from
the wharf, and the flames from the cotton waste or rag set the
floating oil on fire, either directly or by first setting fire to a
wooden pile coated with oil, and, thereafter, a conflagration
developed which seriously damaged the wharf and the equipment
on it. The respondent brought an action to recover compensation
for the damage. The trial judge found, on the evidence, that the
appellants did not know and could not reasonably be expected to
have known that the furnance oil was capable of being set afire
when spread on water. In addition, he found that, apart from
damage by fire, the respondents had suffered some damage from
the spillage of the oil because it fouled their slipways. He
considered this damage the "direct result of the escape of the oil."
The Privy Council (per Viscount Simon) rejected the Re Polemis
Rule as an aberration. They held that foreseeability was the proper
test both for culpability and compensation. The council said:n

"It does not seem consonant with current ideas of justice or

morality that for an act of negligence, however slight or venial,
which results in some trivial foreseeable damage the actor should
be liable for all consequences however unforeseeable and however
grave, so long as they can be said to be 'direct'. It is a principle of
civil liability, subject only to qualifications which have no present
relevance, that a man must be considered to be responsible for the
probable consequences of his act. To demand more of him is too
harsh a rule, to demand less is to ignore that civilised order
requires the observance of a minimum standard of behaviour."

The Wagon Mound case thus re-established reasonable

foreseeability as the test for remoteness of damage in negligence
cases. The Privy Council expressly here overruled Re Polemis,
declaring it as bad law.

As already mentioned, in personal injury cases, the courts seem to

favour the Polemis rule, or, at any rate, one can say that decisions
in this area are closer to Polemis. For example, in Smith v. Leech
Brain & Co. Ltd.,14 the court held that the decision in Wagon
Mound was not intended to vary the rule, long established in
personal injury cases, that a tortfeasor takes his victim as he finds
him, i.e. talem qualem. This case was a widow's claim under the
Law Reform Act, 1934 and the Fatal Accidents Acts, 1846-1908
for damages arising out of an accident to her husband in the course
of his employment by the first defendants. The deceased was
employed as a labourer and galvanizer. About ten years before the
action, he had a burn on his lips as a result of contact with molten
metal. The bum was treated at that time, but, later, it resulted in
cancer which appeared to have been because he might have had a
pre-malignant condition resulting from contact with tar. The
deceased had worked for nine years in gasworks. He died from the
cancer.
The defendants were held negligent in not providing him
with adequate protection. The major question then was
whether the cancer which the plaintiffs husband had admittedly
got, and the death resulting from it, were caused in part by the
burn. On this, the court found that the bum was the promoting
cancer in tissues which already had a pre-malignant condition.
On the question of damages, Lord Goddard said:
"For my part, I am quite satisfied that the Judicial Committee
in the Wagon Mound case did not have what I may call,
loosely, the thin skull cases in mind. It has always been the
law of this country that a tortfeasor takes his victim finds him.
It is unnecessary to do more than refer to the short passage in
the decision of Kennedy J. Dulieu v. White where he said: 'If
a man is run over or otherwise negligently injured in his
body, it is no answer to the sufferer's claim for damages that
he would have suffered less injury, or no injury at all, if he
had not had an unusually thin skull or an unusually weak
heart. ..
And he continued

“The test is not whether these employers could reasonably have

foreseen that a bum would cause cancer and that he would die. The
question is whether these employers could reasonably have foreseen
the type of injury he suffered, namely, the bum. What, in the
particular case, is the amount of damage which he suffers as a result
of that bum depends upon the characteristics and constitution of the
victim."
This decision quite clearly follows the Polemis tradition, although
Lord Parker in his judgment expressed his preference for the Wagon
Mound rule. On this, see also Banque Keyser Ullman SA v.
Skandia (U.K) Insurance Co. Ltd.
The same could perhaps be said of the House of Lords' decision in
Hughes v. Lord Advocate where in disagreeing with lower courts,
the House dispelled all apprehensions that the foreseeability test
was to be deployed with pro-defendant bias in a very narrow
fashion, by holding that a freak explosion of an overturned parafin
lamp, as distinct from the ordinary danger it represented of causing
a fire by spilling, was still substantially the same type of accident,
defined as damage by bums. It was true the injury was a good deal
greater in extent than was foreseeable, and the know source of
danger, the lamp, behaved in a totally unpredictable manner, but
that could be dismissed as immaterial.
The test of remoteness under Polemis in the case of economic or
nonphysical damage is more restrictive. For this see Liesbisch
Dredger v. S.S. Edison.

On Wagon Mound and the 'egg-skull rule', see also

(i) Bradford v. Robinson Rentals
(ii) Robinson v. Post Office
(iii) Atiyah, p. 115.
Note that the difference in the decision between Wagon Mound
Nos. 1 and 2 is the fact of different findings of fact. So it is not
correct that No. 1 is overruled by No. 2 as suggested by Dias &
Markennis, p. 136.
Note further that there is no difference in the result in personal
injury cases, whether one goes by Polemis or Wagon Mound. But in
property damage cases, Wagon Mound uses a narrower approach,
One way of appreciating the convergence in effect of the two rules
is to try and understand —
a) What is "directness" in Polemis
b) What is "reasonable foreseeability" in Wagon Mound (No.2).

NOVUS ACTUS INTERVENIENS

No matter which school one accepts, however, the law is that, if
there is an intervening act which the wrongdoer could not have
foreseen, then the defendant is not liable. The chain of causation is
said to have been broken. This is often expressed by saying that,
where there is a novus actus interveniens, then the defendant is not
liable. The kind of issue at play here may be illustrated by
examining the following questions:
a) A traffic victim is left prostrate on the road and is then stripped
by pickpockets — is the negligent motorist liable? No.

b) A contractor leaves an unguarded hole in the pavement into

which plaintiff is deliberately pushed by a personal enemy? No
liability. Cf. Adu v. Gliksten.

c) Facts are similar to (b) above, except that here the plaintiff
stumbles into the hole in the dark or perhaps is carelessly jostled by
a passer-by in a hurry? Liability.

The principle is illustrated by Brandon v. Osborne. This is an action

by the plaintiffs (husband and wife) for damages for injuries
sustained by them while in a shop occupied by the first defendants.
The plaintiffs were shopping at the time of the injury. The second
defendants were repairing the roof of the shop. As a result of the
negligence of the second defendants, a portion of the skylight,
forming part of the roof, fell and a piece of glass struck the male
plaintiff. Although it did not cut him, it caused him a severe shock.
At the time he was hit by the glass, his wife was standing quite
close to him. She was not struck or touched by the falling glass, but,
on seeing it fall, she immediately and instinctively put out her hand
and clutched her husband's arms and tried to pull him away from
the spot. She strained her leg in that effort in a way which brought
about the recurrence of thrombosis from which she had at one time
suffered but from which she had been free for some years. The
defendants argued that she was not entitled to recover because her
injury was caused by her intervening to pull her husband out of the
danger she thought was threatening him.
Swift J. held that, notwithstanding her intervention, she was entitled
to recover. (He applied Jones v. Boyce). He explained his decision
as follows:

"In such circumstances as these, it would be for the jury to say

whether, where the primary cause of the injury was the negligence
of the defendants in breaking the glass roof so that portions of it fell
on the male plaintiff and close to her, the injury to her leg was
caused by an improper act of hers which contributed to the
mischief. If she did something which a reasonable person in the
circumstances ought not to have done she would not be entitled to
damages, but if what she did was done instinctively and was in the
circumstances a natural and proper thing to do, I think she is
entitled to recover."
And
continued

"It seems to me that where a person sustains injury through a

combination of acts some done by the defendants and some
by himself, it is for the jury to say, regard to the whole of the
circumstances, whether, (1) the injury is the natural and
probable consequence of the defendants' act, and (2) whether
 the plaintiff has been guilty of contributory negligence. If in
this case the female plaintiff had been standing in a place of
perfect safety, and saw, as she says she did..., the 'glass
raining down upon her husband' and had time to think what
was the wisest thing to do, it might possibly be said that she
was guilty of negligence by going into the danger; but,
having regard to the place she was in and the frightening
nature of the accident..., I think that, acting instinctively as
she did in clutching her husband’s arm and trying to drag him
out of danger, she did nothing wrong or anything that can be
called contributory negligence."

See on this point generally Haynes v. Harwood. In Haynes v.

Harwood, Greer novus actus interveniens is no defence, i.e. does
not arise, if the intervention is kind of thing which is likely to
happen, if the want of care which is alleged takes place
e.g. rescue.
ELECTIONS
Often the question arises whether a plaintiff, who, when put in
alternative danger act of a defendant, takes the danger he considers
the lesser one, has broken the c causation. For example, A, in a
trotro, finds the truck swerving dangerously from side. Believing
an accident imminent, A jumps out of the truck and breaks his leg
his jumping out break the chain of causation?
The courts generally take a liberal attitude of this kind of situation.
They say that, where a person is put in alternative danger and he
elects what to him is the less perilous, the defendant is liable if he
is injured. This was established in Jones v. Boyce. The plaintiff
brought this action against a coach proprietor for so negligently
conducting the coach that plaintiff was obliged to jump off the
coach in consequence of which his leg was broken. Evidence was
adduced to show that the coupling reign was defective; it broke
and to stop the coach the driver drove to the side of the road where
it was eventually stopped by a post. Lord Ellenborough directed
the jury thus:

1. Was the proprietor of the coach liable for failing to provide

safe and proper means of conveyance?
2. Was that default the cause of the injury to the plaintiff?

"for if it was not so far conducive as to create such a reasonable

degree of alarm, and apprehension in the mind of the plaintiff, as
rendered it necessary for him to jump down from the coach in
order to avoid immediate danger, the action is not maintainable.
To enable the plaintiff to sustain the action, it is not necessary that
he should have been thrown off the coach, is sufficient if he was
placed by the misconduct of the defendant in such a situation as
obliged him to adopt the alternative of a dangerous leap, or to
remain at certain peril; if that position was occasioned by the
default of the defendant, the action may be supported. On the other
hand, if the plaintiff's act resulted from a rash apprehension of
danger, which did not exist, and the injury which he sustained is to
be attributed to rashness and imprudence, he is not entitled to
recover. The question is, whether he was placed in such a situation
as to render what he did a prudent precaution, for the purpose of
self-preservation. ...
If I place a man in such a situation that he must adopt a perilous
alternative, 1 am responsible for the consequences."
The complexity of the issues involved here is further brought out
by the decisions in the following cases: Ekwo v. Enechukwu;
IYeboah v. Yamak; Adjei v. Yeboah. In Ekwo v. Enechukwu, the
plaintiff was a passenger on the defendant's lorry from Port
Harcourt to Onitsha. During the course of the journey, the scat
upon which he was sitting, due to negligent fixing by the
defendant or his servants, came out of its position. The plaintiff
fell with his right hand under the seat and broke his hand badly.
Immediately after the accident, the defendant's driver offered to
take the plaintiff to the hospital at Aba. The driver of the second
defendant's lorry also offered to take him to the hospital in Port
Harcourt. The plaintiff refused to go to either hospital for fear that
his hand might be amputated, and elected to be taken to a native
doctor at Asa. Some days later, he was taken to hospital suffering
from a septic wound of his hand, which was festering and
gangrenous and his arm was amputated. The doctor who attended
the plaintiff in hospital gave evidence that the treatment and
amputation were the result of the septic wound; he expressed the
view that, if the plaintiff had come into the hospital immediately,
might have been saved from amputation.
The learned trial judge held that the plaintiff was contributorily
negligent in refusing to go to hospital and going instead to a native
doctor and this caused the
amputation, that the amputation was too remote a consequence of
defendant's negligence; that the plaintiff's behaviour was
unreasonable and therefore the defendants could not be held liable
for the further damage caused by his own act. He, therefore,
awarded damages only on the footing of a fracture of the bones of
the right hand. The plaintiff appealed against that decision.
On appeal, two issues were considered:
1.Did plaintiff act unreasonably in choosing the course he did?
2.Can it be said with reasonable certainty that an independent cause
intervened between the defendants' negligence and the necessity for
the amputation?
The West African Court of Appeal was of the view that in the
determination of the first issue, it must be remembered that the
accident occurred in Nigeria where it is common knowledge that a
considerable proportion of the population still hold a strong belief
in their native doctors. The relevance of the belief lay in the fact of
its existence and not whether the belief is reasonable. The court
therefore concluded that, in choosing as he did, the plaintiff had not
acted unreasonably. On the second issue, the West African Court of
Appeal understood the doctor's evidence as only suggesting that,
the plaintiff might have been saved, if he had come straight to
hospital and refused to interprete it to mean there was no physical
connection between the negligence and the amputation. They
allowed the appeal and increased the damages accordingly.
In Yeboah v. Yaniak, the plaintiff and her daughter were
passengers in a lorry driven by the third defendant and owned by
the first and second defendants. The lorry collided with another aid
they sustained injuries. The driver of the defendants was held liable
in negligence for the collision. The remaining question therefore
concerted only damages. The defendants contested the expenses in
connection with a visit to the native doctor, contending that it was
unnecessary. Djabanor J. did not agree with the defendants. Having
regard to the background of the plaintiffs, especially their way of
life and tie superstitions and prejudices of the community from
which they came, a visit in these circumstances to the native doctor
was not unnecessary or unreasonable. He said: "native doctors
perform wonders in bone healing."
In establishing causation in negligence, especially where there are
multiple causes, it is enough for the plaintiff to establish that a
defendant's negligence increased the risk of his being harmed. If
the injury resulted and there was no proof of any alternative cause,
then liability followed despite lack of a conclusive causal link: see
Fitzgerald v. Lane. Liability will also be imputed to any negligent
party whose breach of duty is proved to have created a risk that
injury will be caused to another.
Chapter 21

DEFENCES
In this chapter we shall discuss the two defences to an action in
negligence namely, contributory negligence and volenti nonfit
injuria.

1. Contributory negligence1
Contributory negligence is conduct by the plaintiff showing an
unreasonable disregard for the safety of his own interest, which
disregard together with the defendant's negligence causes harm to
that interest.
Until 1945 in England, and 1963 in Ghana, contributory negligence
was a complete defence to an action in negligence. This common
law rule still operates in some jurisdictions because of the operation
of the maxim, in pari delicto, potior est conditio defendentis. This
defence seems to draw its force from the same moral well which
led to the creation of negligent liability in the first case i.e., the
feeling that a plaintiff guilty of contributory negligence was
himself "at fault" or "to blame" for his injuries. The legal
justification for this was, however, expressed in terms of "cause"
and led to such indefensible rules as "the last opportunity rule."
In Ghana, the law on contributory negligence is to be found in Part
I of the Civil Liability Act, 1963 (Act 176). Section 1(1) of Act 176
provides as follows:
"Where any person suffers damage as the result partly of the fault
of any other person and partly of his own fault or the fault of
someone for whom he is responsible (in this part referred to as
contributory negligence), a claim in respect of that damage shall
not be defeated by reason of the fault of the person suffering
damage, but the damages recoverable in respect thereof shall be
reduced to such extent as the court thinks just and equitable having
regard to the plaintiffs share in the responsibility for the damage:
Provided that —
a) if, having regard to all the circumstances of the case, it is not
possible to establish different degrees of fault, the liability shall be
apportioned equally;
b) this section shall not operate to defeat any defence arising
under a contract;
c) where any contract or enactment providing for the limitation
of liability is applicable to the claim, the amount of damages
recoverable by the plaintiff by virtue of this section shall not
exceed the maximum limit so applicable."

Note that in this statutory definition as well as at common law, a

plaintiff is said to contribute to his injury or to be guilty of
contributory negligence, where he fails to take reasonable care for
his own safety in relation to the conduct for which he seeks to
blame the defendant.
We may examine three cases to get the full import of this defence:
In Jones v. Livox Quarries Ltd., the plaintiff who worked in the
defendant's quarry rode on the towbar of a vehicle against the
express orders of his employers. Later, while the vehicle was
almost at a standstill, another vehicle, also of the defendants,
negligently ran into him from the back as he stood on the towbar
and he was crushed between the two vehicles. The trial judge held
him guilty of contributory negligence, which he estimated at twenty
per cent and he appealed. The appeal was dismissed; so also was a
cross-appeal by the defendants Lord Denning explained that:
"Although contributory negligence does not depend on a duty
of care, it does depend on foreseeability. Just as actionable
negligence requires the foreseeability of harm to others, so
contributory negligence requires the foreseeability of harm
to oneself. A person is guilty of contributory negligence if he
ought reasonably to have foreseen that, if he did not act as a
reasonable, prudent man, he might be hurt himself; and, in his
reckonings, he must take into account the possibility of others
being careless. ...
The question in every case is: What faults were there which
caused the damage?
Was his fault one of them?
... If the plaint ff, whilst riding on the towbar, had been hit in
the eye by a shot from a negligent sportsman, I should have
thought that the plaintiffs negligence
would in no way be a cause of his injury. ...
... It all comes to this: if a man carelessly rides on a vehicle
in a dangerous position, and subsequently, there is a collision
in which his injuries are made worse by reason of his position
than they would otherwise have been, then his damage is
partly the result of his own fault, and the damages
recoverable by him sall to be reduced accordingly."
The Jones case thus stresses that for the plaintiff's negligence to be
operative, it must be in respect of the risk to which the plaintiff's
negligence exposed him, and not some other risk.
The plaintiff must have failed to take reasonable care. In O'Connell
v. Jackson the plaintiff, an experienced motorist, failed to wear a
crash helmet in circumstances in which a reasonably prudent motor
rider would have worn one. He was involved in an accident as a
result of the negligence of the defendant. At the trial, the defendant
admitted negligence, but argued that the plaintiff had contributed to
the damage by failing to wear the helmet. The learned trial judge
rejected this contention. On appeal, it was held that the appeal must
succeed. The Court of Appeal (Russell, Edmund Davies, Cairns
L.JJ.), per Edmund Davies, was of the view that it was
unreasonable for the plaintiff to ride a moped cycle at twenty miles
per hour in a busy traffic area without a crash helmet, and, from the
medical evidence, concluded that the plaintiff's injuries would have
been minimised if he had worn one. The plaintiffs contributory
negligence was assessed at fifteen per cent.
The same conclusion was reached in Owens v. Brimmell: The
plaintiff and defendant were friends. The plaintiff had often been
driven by the defendant in the defendant's car. In the early evening
of the day in question, they went out together, drank at a number of
public houses .and finally a club. During the course of this drinking
spree, each drank between eight and nine pints of beer. At about 2
a.m. the following day, on their way back home, the defendant who
was driving the car, lost control of it, hit a lamp post and the
plaintiff received severe injuries. The plaintiff brought an action for
damages. The defendant admitted liability but alleged that the
plaintiff was himself contributorily negligent (a) in not wearing a
seat belt; and (b) in accepting a lift knowing or being reckless to the
possibility that the defendant's ability to drive was impaired by
drink. Watkins J rejected the contributory negligence claim based
on .he failure to wear the seat belt on the grounds that the defendant
had failed to satisfy him, on a balance of probabilities, that the
injury would have been less severe if the plaintiff had worn the seat
belt. But he reduced the damages awarded to the plaintiff because
he was satisfied that the plaintiff was contributorily negligent in
taking the ride in the circumstances. He used the following
proposition:
"... a passenger may be guilty of contributory negligence if he rides
with the driver of a car whom he knows has consumed alcohol in
such quantity as is likely to impair to a dangerous degree, that
driver's capacity to drive properly and safely. So, also, may a
passenger be guilty of contributory negligence if he, knowing that
he is going to be driven in a car by his companion later,
accompanies him upon a bout of drinking, which has the effect,
eventually, of robbing the passenger of clear thought and perception
and diminishes the driver's capacity to drive properly and carefully.
Whether this principle can be relied upon successfully is a question
of fact and degree to be determined in the circumstances out of
which the issue is said to arise."
After providing that contributory negligence will no longer be a
complete or absolute defence to an action in negligence, sections 2
and 3 of Act 176 oblige the court before which the issue of
negligence is tried to determine the relative contributions of the
plaintiff and the defendant and to reduce the damages to be awarded
to the plaintiff in proportion to his or her contribution.

2. Volenti non fit injuria This defence is sometimes also referred to

as voluntary assumption of risk
Pollock observed in his book, Torts that the whole law of
negligence presupposes . the absence of consent on the part of the
plaintiff. The common law does not cuddle its
children. Therefore, as a rule, willing self-exposure to injury or
loss, or its risk, releases others from the duty of care which would
normally devolve upon them, provided the willingness is genuine.

This is what is described in negligence as the defence of volenti

non fit injura, or consent. In determining whether there is before the
court evidence which will such claim of consent, account is taken
of factors such as fear, poverty, dependence altruism and modesty.
As Atiyah notes'' if we can forget all legal classification for a
moment, it would seem that there are three possible reasons why
the plaintiff's own conduct should deprive him of a right of action
against a negligent defendant:

(1) the plaintiff may have agreed that the defendant was not to be
liable.
Example of situation (1):
a) A allows B onto his land, without that B trespasses to land.
b) Boxer in a boxing ring or footballer on the field, who makes
body contact — no assault or battery.
c) You may use my premises etc. "at your own risk." But for
absence of consideration, this could create contract.

(2) The plaintiff may have been to blame, or at fault, in whole or

in part for his own injury -contributory negligence. Example of
situation (2): A person may be treated as having impliedly "agreed
to assume a risk" from the mere fact that he has done something
presenting a great risk or an unjustified risk e.g. taking in a car
driven by a drunk; or a person who does something which involves
strong probability of being injured; which was unjustified and
unreasonable having regard to the circumstances.

(3) The plaintiff may have agreed to the defendant conforming to a

standard of conduct which is lower than normally required by the
law. Example of situation (3): Where, in addition to doing
something which involves a risk, the plaintiff agrees to the
defendant imposing the risk on him. Here the plaintiff is not
agreeing to acquit the defendant of liability should injury occur,
e.g. Murray v. Harringway Arena " i.e. flying puck at an ice-hockey
match. The case was decided on the basis that no duty is owed by
organisers of sporting events to guard spectators against dangers
normally incidental to the sport in question, or Hall v. Brooklands
Auto Racing Club - car at a race track. An attempt to rely on the
defence of volenti non fit injuria is likely to involve one or more of
these situations.
However, it must be stressed that to succeed in the defence of
volenti non fit injuria, the defendant must prove the fact that the
plaintiff voluntarily and freely with full knowledge of the risk,
agreed to incur it. The point was made in Gyasi v. State Gold
Mining Corpn. It was an action by the plaintiff against the
defendants for damages for injuries sustained in a motor accident.
The first defendants, by their pleading; and evidence, argued that
the action must fail because the plaintiff had control of their vehicle
on the day of the accident but had allowed, permitted or acquiesced
in the manner in which their driver had driven the vehicle on that
day, thereby relying on volenti non fit injuria.
Applying the above principle, the defence failed. The court,
presided over by Owusu-Addo J, argued that, on the evidence, it
could not be said that the plaintiff had consented to the manner in
which the driver had driven the vehicle. Nor could it be said that the
plaintiff had permitted or acquiesced in the negligent manner in
which the defendant's driver had driven the vehicle. The court was
of the view that, for it to be said that anybody was controlling a
driver, the evidence must show the driver to be under the complete
dominion of that other person. It was not enough that the other
person could ask the driver to reduce his speed. An employee, from
the foregoing remarks, it should be clear, will rarely be held volens,
if, when he was injured, he was obeying his employer's instructions,
except where the risk he ran was necessarily or ordinarily incidental
to his work. In Bowater v. Rowley Regis Corpn,14 the plaintiff was
a carter employed by the defendants to collect road sweepings. He
was ordered by the foreman of the defendants to take out a horse
which, to the knowledge of both of them, had run away, on at least
two previous occasions, when driven by a fellow employee. The
plaintiff protested but the foreman said that it was an order of the
borough surveyor.
Some days later, the horse ran away and the plaintiff was thrown
from his cart and suffered personal injuries. He sued the defendants,
alleging that they were negligent in that they failed to provide him
with a horse which was safe and suitable for the work which he had
to perform. The trial judge upheld the defence of volenti raised by
the defendants and the plaintiff appealed. On the plea of volenti,
Scott L.J. said:

"That maxim has to be applied with specially careful regard to the

varying facts of human affairs and human nature in any particular
case just because it is concerned -with the intangible factors of mind
and will. For the purpose of the rule ... a man cannot be said to be
truly 'willing' unless he is in a position to choose freely, and
freedom of choice predicates, not only full knowledge of the
circumstances on which the exercise of choice is conditioned, so
that he may be able to choose wisely, but the absence from his mind
of any feeling of constraint so that nothing shall interfere with the
freedom of his will. Without purporting to lay down any rule of
universal application, I venture to doubt whether the maxim can
very often apply in circumstances of an injury to a servant by the
negligence of his master. When the servant is engaged specifically
for the performance of a dangerous duty and the presence of danger
is a mutually recognized element in the bargain for remuneration,
the servant obviously undertakes the risk for the sake of higher
pay…
"The maxim non fit injuria is one which in the case of master and
servant is to be applied with extreme caution. Indeed, I would say
that it can hardly ever be applicable where the act to which the
servant is said to be 'volens' arises out of his ordinary duty, unless
the work for which he is engaged is one in which danger is
necessarily involved. ... A man, however, whose occupation is not
one of a nature inherently dangerous but who is asked or required
to undertake a risky operation is in a different position. To rely on
this doctrine the master must show that the servant undertook that
the risk should be on him. It is not enough, that, whether under
protest or not, he obeyed an order or complied with a request
which he might have declined as one which he was not bound
either to obey or to comply with. ... For this maxim or doctrine to
apply it must be shown that a servant who is asked or required to
use dangerous plant is a volunteer h the fullest sense, that,
knowing of the danger, he expressly or impliedly said that he
would do the job at his own risk and not at that of his master."
From the cases, it is clear that, for the defence to apply it must be
shown that the plaintiff chose to be exposed to or undertake the
risk. For the choice to be operative, the plaintiff must be aware of
it. He cannot be said to have chosen, if there are any constraints 6n
his freedom of choice or ability to act willingly, that is as a free
agent.
Chapter 22

EMPLOYER'S DUTY TO HIS WORKERS AND TO THIRD

PARTIES

A. Duty to his employees

Introduction
At common law, a master owes a duty of care to his workers It is a
personal one of a general nature. Lord Wright summed up the duty
thus (quoted with approval by Owusu-Addo J in Issah v.
MimTimber) in the leading case of Wilson &. Clyde Coal Co. Ltd.
v. English:''

"... a duty which rests on the employer and which is personal to

the employer, to take reasonable care for the safety of his
workmen, whether the employer be an individual, a firm, or a
company, and whether or not the employer takes any share in the
conduct of the operations."

Before them he had stated":

"the obligation is three-fold: the provision of a competent staff of

men, adequate material and a proper system and effective
supervision."

The duty then is owed to each individual employee and therefore

each workman's particular circumstances which are known or
which ought to be known to the employer will determine the
standard of care to be taken. But merely because one particular
employee is likely to suffer greater pain does not impose a duty to
take special care in respect of him on the employer, unless the
operation on which the particular employee is engaged is in itself a
dangerous one which needs special care. In Paris v. Stepney
Borough Council for instance, a workman who had only one eye,
as the defendant knew, was employed as a garage hand by the
defendants. While working on the back axle of a vehicle, he struck
a u-bolt with a hammer in order to facilitate its removal. A chip of
metal flew off and injured his good eye. He was not wearing
goggles and he claimed damages against the defendants on the
grounds that they were negligent in failing to provide, and require
the use of goggles as part of the system of work. It was held, on
appeal, that, as the operation in question was not in itself a
dangerous one, the defendants were not obliged normally to
 provide goggles as part of the system of work; and that the
plaintiffs disability was not relevant to the stringency of the duty
owed him in that respect because that disability exposed him not
to a greater risk of injury, but only to a risk of greater injury.
But the law does not require employers to dismiss employees, if
this is the only way of avoiding liability — Withers v. Perry Chain.
Whether an employer owes the duty is a question of fact. Thus, in
Wilson & Clyde Coal Co. Ltd. v. English, a miner brought an
action for damages in personal injuries against his employers. The
question arose whether they were liable in respect of these injuries
as they had delegated to a competent servant the duty of taking due
care in the provision of a reasonably safe system of work in the
mine. It was held that the miner was entitled to succeed because the
employers could not avoid their duty to provide a competent staff
of men, adequate material and a proper system o effective
supervision by delegation. The duty then is clearly personal to the
i.e., it is not discharged merely because he engages others to do the
work on He is liable unless those he asked to do the work exercise
reasonable care and are competent to do the work as required of
them.
What exactly the duty entails can sometimes be problematic. In
Qualcast (Wolverhampton) Ltd. v. Haynes where boots were
available but the defendant did not wear them, it was held that the
employer was not liable. This case, however, is difficult to
understand. As regards the workman's failure to wear spats
destroying his case, it is understandable, for he could have these for
the asking. Now what about the boots? If an employer is to provide
for his workmen because of the special dangers to nature of their
work might expose them, is this duty discharged merely by making
it possible for the workers to buy them? I think not.
The employer's duty, as has been already stated, is three-fold. He
has a duty to provide:
1. competent staff c r fellow workmen i.e. personnel;
2. adequate plant in the premises i.e. machinery, tools and raw
materials and
3. a safe system of work. This phrase relates to the general
management and effectiveness of supervision. The duty is to
provide a safe system of work.
Let us now consider each component of the duty seriatim.
Competent Workman

The duty to provide competent fellow workmen was the basis of

the decision in Black (Butler) v. Fife Coal Co. Ltd. In this case, the
husband of the plaintiff was killed by an outbreak of poisonous
gas, while working in the coal mine of the defendant company, a
limited liability company. In an action under the common law and
alternatively under the Employer's Liability Act, 1880, the trial
court found that the defendants were liable for not providing
competent officials for the working of the mine. On appeal, the Co
art of Session held that they were not liable under common law,
having used reasonable care to appoint managers of the necessary
qualifications and experience, but they were liable under the
Employer's Liability Act, 1880. In a further appeal to the House of
Lords, it was held, reversing the Second Division of the Court of
Session's decision, that there was a duty on the defendants, as
owners of the mine, to appoint and put in charge persons
competent to deal with the dangers arising in the mine; that they
had not discharged that duty and were therefore liable at common
law for the sum of £400 awarded by the sheriff substitute.
Also, in Hudson v. Ridge Manufacturing Co. Ltd.,8 where an
employee was injured by the foolish prank of a fellow employee,
whose propensity for mischief was known to the employers, the
employers were held liable.
This component covers fellow workmen as well as supervisors put
in charge by the employer. They must have the competence to
respond to the myriad of situations likely to occur at the work-
place. This will therefore depend on the nature of the operations of
the employer.

2. Adequate tools
The employer must take care to provide adequate appliances and
failure to supply such appliances is a breach of duty. But this does
not mean that the employer must manufacture the tools. As long as
he takes care to procure the tools from reputable manufacturers or
from market overt, he has discharged his duty.
In Davie v. New Merton Brd. Mills, the plaintiff's employers, the
defendants here, had bought some tools including a drift on the
open market with a defect not discoverable on inspection, nor was
intermediate examination by the employers between the time of its
manufacture and its use reasonably to be expected. The plaintiff
used the tool as a maintenance fitter and, owing to the defect in it,
a piece flew off the drift, when it was struck with a hammer by the
plaintiff in the course of using it and destroyed the sight of his left
eye. There was no negligence in the employers' system of
maintenance and inspection and the accident was solely due to the
defect in the drift. It was held that the employers were not liable to
the plaintiff for the injury to him caused by the defective drift,
since they had fulfilled their duty to him, namely to take
 reasonable care to provide proper appliances and were not
responsible for the negligence of the manufacturers, who had no
contractual relationship with the employers and, in manufacturing
the tool, were not acting as persons to whom the employers had
delegated the performance of any duty that it was for them to
perform.
If the work involves special risks, the employer must provide
protective materials and reasonable steps should be taken to see
that they were used. In Clifford v. Challen & Sons, a workman
employed by the defendants had to use synthetic glue which could
cause dermatitis unless a special cream was used and any parts of
the skin on to which some fell had to be washed. These
precautionary measures, set out in a government notice, were put
on the notice board of the defendants' work place. The cream was
kept in the factory store to which the workmen had access. The
foreman of the defendants took no steps to ensure its use by the
workmen. The plaintiff contracted dermatitis and claimed damages
from his employers on the ground that his injury resulted from
their having failed to supply a safe system of work. It was held that
the protective cream should have been provided in the shop itself
and a system established whereby the men would use it according
to the government notice. By failing to do this, the defendants

were in breach of their duty to the plaintiff and were liable to him
in damages. However because of the plaintiff's contributory
negligence, the amount of damages was to borne equally by the
parties.
Also in Smith v. Leech Brain & Co. Ltd., it may be recalled the
galvaniser employed by the defendants was splashed by molten
metal and he later contracted from which he died. It was found that
the defendant had been negligent and that the burn was the
promotion agent, promoting cancer in tissues which already had a
pre- condition as a result of the plaintiff having worked at a gas
works. It was held that the man's widow was entitled to damages
under the Law Reform (Miscellaneous Act ) 1934, and the Fatal
Accidents Acts, 1846-1908, as the type of injury the man
reasonably foreseeable although the defendants could not have
foreseen consequences. Lord Parker laid down the test in the
following words:

"the test is not whether these defendants could have foreseen that a
burn would cause cancer and that the man would die. The question
is whether these defendants could reasonably foresee the type of
injury which is suffered, namely, the bum."

This means the employer must protect his employees from

foreseeable harm
But in Woods v. Durable Suites Ltd, the plaintiff, an experienced
workman of 56 years, had been specifically instructed by the
manager to use the protective measures against synthetic glue and
the possibility of contracting dermatitis. He did not fully observe
them and, as a 'result, contracted dermatitis. It was held that the
defendants had discharged their duty to take reasonable care for the
safety of their workmen and not to subject them to any unnecessary
risk and that they were under no duty to provide a foreman,
constantly watching to ensure that a workman of his age and
experience took precautions he had be m instructed to take, as they
had given him proper instructions and provided him with the
requisite materials and facilities for his protection.

3. Safe system of work

This is an omnibus term used to describe how the work should be
carried out, including the different parts to be played by various
employees, the time for work and the organisation of work. Long
established practice in a trade is regarded as strong evidence of
reasonable conduct; but this is not conclusive. It has been held, in
one c^se, t system of work was unsafe when a servant at a stone
quarry was injured because the warning signal was not given at a
reasonable enough time to leave the place. See Kussasi v. Ghana
Cargo Handling fork lift driver hit by pallet of rice; Issah v. Mim
Timber; Ali Chana v. Konongo Gold Mines Ltd .
Defences
The same defences are available as in other forms of negligence.
Contributory negligence is important, as could be seen in Clifford
v. Challen, in reducing damages. Although the courts are unwilling
to allow the doctrine of voluntary assumption of risk, if the
employment necessarily involves particular (Withers v. Perry
Chain) risks (e.g. cinema stunt man), the employer would be held
to have no duty to remove these risks and a workman injured in
consequence of undertaking them will not recover in negligence. It
must always be borne in mind that the basic question is whether
the employer has failed to take reasonable care for the safety of his
workman and the tripartite division does not necessarily exhaust
the field.
An employer who delegates to an independent contractor will
probably be liable for the latter's negligence, if the work might
normally have been done by the employer's servant. Beyond that,
the extent of his liability for the negligence of independent
contractors is doubtful, as exemplified by Davie v. New Morton
Board Mills Ltd.
The matter is also covered by statute. See the Factories, Offices
and Shops Act 1970 (Act 328) as amended by PNDCL 66 and
PNDCL. 275

.
B. EMPLOYER'S LIABILITY (DUTY) TO THIRD PARTIES
(VICARIOUS LIABILITY)

Introduction
The law is that an employer is answerable to the victim(s) of his
servant's torts. This liability is based on the principle of
"respondeat superior" — vicarious liability. The basis of this
principle is hard to fathom in a system of law said to be based on
fault. We may therefore begin by noting the traditional
justifications. The following justifications are usually given for
this principle:
1. It serves the loss distribution function of the law of torts, i.e.
the employer is better able to distribute the cost of this liability
either through insurance or to his customers.
2. It encourages the employer to exercise better control over his
employees, thus supporting the policy of accident prevention.
3. It encourages the employer to be careful in the selection of
employees. (NB: Yet vicarious liability operates almost as strict
liability!).
4. The employer takes the benefits of the work of the employee,
so he should also shoulder the risks attached to that activity.
5. From the victim's point of view, the compensation function of
torts law requires that liability be imposed on the employer who is
in a position to pay rather than the employee who may be a person
of straw.
6. Often the duty breached by the employee is a duty owed by
the employer; therefore, it is only fair that he should carry the can.
The principles of liability to third parties

There are two classes of persons for whose torts a person may be
vicariously liable: (a) servant; and (b) independent contractors.
For the difference between the two, see Lord
Denning in Stevenson v. Macdonald: In that case an accountant,
in the employment of the plaintiffs company delivered in the
course of his employment some public lectures in offered the died,
which he described certain business methods which the company
used in their work as management engineers. After he left the
service of the company, he manuscript of these lectures to the
defendants, publishers. The accountant the plaintiff became aware
of the intended publication, and issued a writ asking for an
injunction which was granted by Lloyd-Jacob J. On appeal, the
Court of Appeal reversed. Sir Raymond Evershed M.R. held that
there had been no breach because, although the accountant had
acquired a certain amount of "know-how" by applying the
plaintiffs methods, he had not learned or disclosed any trade secret
or
confidential formula. Nor had the plaintiff any property right in
the lectures which the accountant had delivered in the course of his
employment. The fact that ii: might have been his duty to deliver
certain lectures did not mean that he surrendered his them, e.g. a
lecturer has copyright in his lectures although delivered while in
the service of the university.
On the other hand, if a man is employed to prepare a particular
document for his employer's use, then in the absence of a special
agreement, the copyright in that document will vest in his
employer. It is for this reason that the right in an examination
paper vests in the university and not in the examiner who prepared
it. Accordingly, in Stevenson v. Macdonal the Court of Appeal
also held that the defendants were not entitled to publish that part
of the accountant's work which he had prepared as a manual for
the use of a particular client of the company.
The vicarious liability principle states that a master is liable for the
acts or torts of servants committed i i the course of his
employment. The main issue here is whether the servant was
acting in the course of his employment when this tort was
committed or the act was done. We may use four cases to place the
test in context. The first is Century Insurance Co. Ltd .v. Northern
Ireland Road Transport where Lord Salmond claimed that a
servant's smoking was part of the course of business.
In that case the appellants had insured the respondents against
liability to third parties caused by the use of a petrol tanker
belonging to the respondents. Under an agreement between the
respondents and X, a petroleum refiner, the respondents undertook
to deliver petrol to any destination ordered by X. There was a
clause in that agreement that the employees would obey and carry
out any instructions by X, while carrying out the terms of the
agreement. On this occasion, an employee of the respondents
(Davison) while delivering petrel from a tanker to an underground
tank, lighted a cigarette and negligently threw away the lighted
match. As a result, considerable damage was caused to property.
The appellants settled the claims arising and, in this action, sought
to indemnify themselves on the grounds that, because of the clause
in the agreement between the respondents and X, Davison was an
employee of X at the time of the accident. The issues were:
Was Davison at the material time an employee of X or the
respondents.
Was his negligent act done in the course of his employment.
The trial judge answered the questions in favour of the appellants
and, on appeal, the Court of Appeal reversed his decision. On
further appeal to the House of Lords, the appeal was dismissed.
Viscount Simon L.C. at 514 of the report said tersely: "they also
serve who only stand and wait." So Davison's negligence in
smoking at the time and throwing away the lighted match was
done in the course of his employment to the respondents and so the
respondent's policy with the appellants was operative to cover this
liability.
The second is Beard v. London Omnibus Co., in which Romer C.J.
said tha< a bus conductor does not drive as part of the course of
his employment. The plaintiff, while riding a bicycle, was run over
by an omnibus belonging to the defendants. At the material time,
according to the plaintiff's evidence, the bus was being driven by
the conductor. Apparently the bus had come to its last stop and
while the driver was out eating, the conductor drove it in order to
bring it to the point where it will begin its return journey. It was
then that the bus hit the bicycle. Judgment was given for the
defendants and the plaintiff appealed. The appeal was dismissed.
According to the Court of Appeal, the plaintiff had not established
by evidence that the conductor, at the time he was driving the bus,
was acting within the course of his employment. Lord Justice
Vaughan Williams tried to provide a balanced but clear view of
the matter: 4
"I think very strongly that it would be unfortunate that it should go
forth to the public that, whenever a conductor is found exercising
some function of the driver, no case can be made against the
omnibus proprietor unless the plaintiff is in a position to call
evidence to account for the temporary absence of the driver. It
seems to me to be a sounder view that, where a driver and a
conductor are sent out in charge of an omnibus and complaint is
made of some act done by the conductor, it should be left to the
jury to say whether that act so complained of was within the
authority given to the conductor. It is all very well to say that one
knows that the authority given to a driver is to drive and that given
to the conductor is to conduct, but it is incorrect to say that one is
entitled to deal with the case on that hypothesis."

The third case is Akyigina v. Adjei, a driver of the appellants,

while driving his vehicle knocked down and killed one Adjetey
Kofi. An action for damages was brought by the administrators of
the estate of Adjetey for compensation under the Civil Liability
Act 1963 (Act 176). Judgment was given in favour of the
respondents. The appellants appealed arguing, inter alia, that the
learned judge was wrong in holding them vicariously liable
because, at the time of the accident, the driver was not acting in
the course of the appellant's business. The appeal was dismissed.
The Court of Appeal held that since the vehicle was owned by the
appellant who employed the driver who drove the vehicle at the
material lime to cart sand and stone, a presumption was raised that
the accident occurred at a time when the driver was driving in the
course of his master's business. The onus shifted on the appellant
to rebut this presumption; he had not rebutted it.
The fourth case is Ricketts v. Tilling, ' an action by the plaintiff for
damages. It appeared that the plaintiff suffered injuries owing lo
die negligent driving of an omnibus by the defendant's servant.
When the bus came to its final terminus, their driver allowed the
conductor to turn it round, while he sat beside him. Owing to the
negligent driving of die conductor, the bus mounted a pavement,
knocked down a lamp post and several persons (one of them died
for which the conductor was convicted of manslaughter) were
severely injured. The plaintiff, one of those knocked down,
received severe injuries. At the trial, the learned judge held, on the
authority of Beard v. London General Omnibus Co., that there was
no evidence that the conductor had any authority from die
defendants to drive the bus. Accordingly, he gave judgment in
favour of the defendants. The plaintiff applied for judgment or
new trial (appealed). A new trial was ordered. In the opinion of the
Court of Appeal, the driver was negligent either in allowing the
conductor to drive the bus or in not seeing that the conductor drove
properly. This was negligence in the course of his employment and
negligence for which the defendants (his masters) were liable. On
these facts, the question of the cause of the injury should have
been left to the jury.
Beard's case was distinguished on the grounds that the case was
decided on its facts. It was pointed out that, in that case, there was
no evidence either that the conductor drove the bus in the course of
his employment or on the authority of anyone for whose
negligence the masters could be held liable. As Romer L.J. said in
that case:

"I agree that the plaintiff's appeal fails. If one sees in the streets of
London an omnibus admittedly belonging to the defendant
company driven in the ordinary way by a person who appears to be
a driver, the presumption is that he is authorised by the company.
That presumption may be removed. In this case it was rebutted by
the plaintiff's evidence, for it was proved that the de faclo driver
was not the person authorised lo drive, but a person authorised and
employed to act as conductor. In such a case the onus of showing
some special authority given to the conductor to do the act which
he did lies upon die plaintiff. No such authority was shown, and no
case of necessity to do the acts which the conductor did was
suggested, nor do the facts lead to any presumption that a case of
necessity had arisen. The plaintiff has not met die onus of proof
which was on him by giving the requisite evidence; and I therefore
think that the judgment appealed against was right. Appeal
dismissed."

Tests of liability
Traditionally, there are two main tests of vicarious liability:
(a) Was the servant doing an act of a kind not authorised by the
master or is it just a wrongful performance of an authorised act? If
the former, the master is not liable; if the latter, then the master is
liable. For a new perspective, see Lister & Ors .v. Hesley Hall
Ltd. In the Lister case, the House of Lords adopted Lord Steyn's
test in the same case namely:

"When determining whether an employer was vicariously liable

for an employee's wrongful act concentration should be on the
relative closeness of the connection between the nature of the
employment and the particular tort. Not just:
(i) Whether the employee had done an authorised act, or
(ii) Used an improper mode to carry out an authorised act."

(b) Another test is: Was the servant acting within authorised limits
of time? If a servant stays on for a few minutes after working
hours to complete a given job, it is within the scope of his job. A
servant on holidays, who calls at the office and injures another is
personally liable. If the servant makes a slight detour for his own
purposes while performing the master's duties, then he is within
scope of his duties.
The following cases illustrate die detour which is in or outside die
scope of one's employment. In Whatman v. Pearson, the
defendant, who was engaged in constructing sewer, employed a
number of people with horses and carts to cart the soil excavated
horn the construction site to another place. The men were allowed
one hour for dinner but were under instructions never to leave their
horses, carts or work. One of the employees, contrary to
instructions, went home to dinner at a place about one-quarter of a
mile out of his way, left his cart and horse unattended in the street
in front of his door. The horse ran away and damaged the
plaintiff's railways. The trial judge left the question whether the
driver had been negligent and whether he was, at the time, acting
within the scope of his employment to the jury. And the jury
answered in the affirmative. On appeal, it was held that the issue
had been properly left to the jury and that the jury had ample
evidence on which to base their holding. Byles J thus justified the
conclusion:

"When the servant left the horse at his own door without any
person in charge of it, he was clearly acting within the general
scope of his authority to conduct the horse and cart during the
day."

Keating J also on the same point noted:

"Upon die first point, Mr. Chamber's contention in substance is
that there was such an amount of deviation by die defendant's
servant from the line of his duty that he ceased to be acting in the
course of the employment of his master. It is always, however, a
question of degree."

To similar effect is the decision in Zagloul v. Kumasi Brewery

Ltd. In that case, on the 17th March 1961, between 10.45 and 11
p.m, a delivery van belonging to the defendant
company, collided with the plaintiff's taxi car number AG 8335 at
the junction of KwameNkrumah Avenue and Farrar Avenue,
Accra, and caused extensive damage collision was caused by the
negligence of the defendant's driver who turned* Avenue from
Kwame Nkrumah Avenue without giving any signal
approaching from the opposite direction.
We may compare the Whatman and Zagloul cases with the case
when a servant makes a major detour amounting to going on a
frolic of his own. In Rayner v. Mitchell, the employee of the
defendant damaged the plaintiff's cab. The employee's job
involved carting beer to the customers of the defendant (the
defendant was a brewer of beer) and on his return journey to the
brewery he called for empty casks wherever the) would be likely
to be collected and he was paid a commission by the defendant for
this. On the day of the accident, the driver had, without
permission, taken the defendant's horse and cart for his own
purposes, namely, to deliver a child's coffin at a relative's house.
On his way back and before the accident, he had called at a public
house, collected two empty barrels and the accident took place
shortly later. The master was held not liable (per Coleridge C.J)
because the servant was not acting within the scope of his
employment
Finally, we may look at the recent decision of Lister & Ors. v.
Hesley Hall Ltd? In this case, between 1979 and 1982, the
claimants were resident at a school for boys with emotional and
background behavioural difficulties, owned by the defendants. The
latter employed G to take care of the boys as warden of the
school's boarding annex. Unbeknown to his employers, G
systematically sexually abused the claimants, while they were
resident at the school. He was eventually convicted of multiple
offences involving sexual abuse. Subsequently, the claimants
brought actions for personal injury £ gainst the defendants,
alleging, inter alia, that they were vicariously liable for the torts
committed by their employee, G. It was held: When determining
whether an employer was vicariously liable for an employee's
wrongful act, it was necessary to concentrate or the relative
closeness of the connection between the nature of the employment
and the particular tort, taking a broad approach to the nature of the
employment by asking what was the job on which the employee
was engaged for his employer. The employers were held liable to
the claimants on the application of this test.
This decision thus adds an additional test to the earlier one which
look id for the existence or otherwise of the employer's
authorisation for what the employee did
Effect of express prohibition
Sometimes the master expressly prohibits the employee not to do
the very id in the course of which he commits the tort. The issue
which then arises is whether the master should be held liable in the
circumstances.
Here a distinction is drawn between:
(a) the mode of doing an act; and
(b) the act itself. The rule is that an express prohibition will not
always absolve the master from liability. However, in certain
appropriate circumstances, an express prohibition will exonerate
him. The rule is justified on the grounds that, if it were otherwise,
a master could simply try to avoid liability by generally enjoining
his employees not to be negligent. A few cases will help illustrate
the point: Canadian Pacific Rly. Co. v. Lockhart per Lord
Thankerton; Limpus v. London General Omnibus'— racing buses
of Rand Ltd. v. Craig for acts of a servant for his own convenience
deliberately outside scope. The effect of the cases is that if the
prohibition is regarded as delimiting the scope of the servant's
employment, the prohibited act will be outside the course of
employment. If what is prohibited is an improper method of
carrying out the servant's authorised duty, it will be within the
course of employment. Thus, in Morris v. Martin, a master was
held liable for the theft of a mink coat by the servant to whom it
had been entrusted for cleaning. The English Court of Appeal was
of the view that, if the theft had been by a servant who had no
duties in relation to the coat, the master would not have been
liable.

Protecting master's property

Further, the servant is under a duty to take reasonable steps to
protect his master's property in case of emergency. Whether the
servant's acts exceed this implied authorisation is a matter of
degree. The relevant cases are: Poland v. Parr; Dyer v. Munday;
Packer v. Sekondi/Takoradi Municipal Council; Akyigina v.
Adjei; Warren v. Henley's Ltd; Keppel Bus Co. v. Sa'ad Bin
Ahmad
In Broom v. Morgan it was held that a procedural bar in favour of
a servant does not necessarily inure to the benefit of a master. See
also Buobuh v. Ministry of Interior. Where the plaintiff proves that
the damage was caused with a car, the fact of ownership of that car
is prima facie evidence that the car, at the material time, was being
driven by master or owner, or his servant. Aboaku v. Tettey; see
also Akyigina v. Adjei. What if a vehicle is under hire purchase?
In this case, the purchaser has complete possession and the true
owner exists to collect payment of installments -purchase price. In
Fynn v. Badu, It was held that the person in possession, directing
the movement of the truck is the master. See also Dy-Yakah v.
S.C.C.

Who is an employee?

To address this question adequately, it must be remembered that

the nature of employment is now changing: part-timers; agency
workers; home workers; contract workers; trainees etc. The
question who is the employee/workman/servant for the purposes of
the application of the vicarious liability principle has to be
understood against the background of this changing work
environment. There are a number of tests for determining this:

1. Integration test or organization test: Stevenson v. Macdonald

per Lord Denning. Crucial to this test is the distinction between a
contract of service and a contract for services. Under a contract of
service, a person is employed as part of the business and his work
is done as an integral part of the business. Whereas under a
contract for services, his work, though done for the business, is not
integrated into it but is only accessory to it. Here the workman is
an independent contractor. |
In distinguishing between a servant and an independent contractor,
Lord Thankerton stated in Stevenson v. Macdonald that a contract
of service existed where certain indicia were present, namely:
a) the master's power of selection of his servant
b) the payment of wages or other remuneration
c) the master's right to control the method of doing the work
d) the master's right of suspension and dismissal.

See Short v. J. & W. Henderson Ltd. Mackenna J in Ready Mixed

Concrete (South East) Ltd. v. Minister of Pensions, laid down
three conditions for the existence of contract of service of
employment, i.e. master or servant relationship and provided
another the integration test:.

1. the employee agrees to provide his work and skill to his

employer in return wage or other remuneration;
2. the employee agrees, expressly or impliedly, to be directed as
to the performance to such a degree as to make the other his
employer; and
3. the other terms of the contract are consistent with there being
a contract of employment.
See Massey v. Crown Life Insurance; Young and Woods v.
West; Market Investigations Ltd. v. Min. of Social Security.

2. Entrepreneurial test:

In the Market Investigations case, it was said that, for the

entrepreneurial test, there were three critical questions, namely"
(a) Whose business is it?
(b) Is the party (the alleged employee) carrying on the business
for himself or for a superior?
(c) Is the party taking a financial risk with the chance of loss as
well as profit?
If A is the owner of the business and carries it out for himself and
bears the loss or benefits from the profit, then A is an independent
contractor and not an employers; the contract then is for services
and not of service.
Certain thorny questions rear their head: (1) Where an employee of
a master is loaned to another employer temporarily, who owes him
the duty of care in the interim? (2) If a tractor is hired out with its
driver, who owes a duty of care to the driver — the owner of the
tractor or the one who has hired it? For a solution to question two,
we must take a look at Mersey Docks & Harbour Board v.
Coggins. Here the harbour authority who let the crane and a driver
to a firm of stevedores employed, paid and had power to dismiss
him, but the conditions of hire stated that the crane driver should
be regarded as a servant of the hirers (stevedores). The stevedores
were entitled to control the moving of the cargo but had no power
to tell the driver how to work his crane. It was held that the
harbour authorities were liable for the crane driver's negligence as
they were entitled to give the orders as to how the work should be
done.
Now, where a workman is hired to another employer, that
employer who would be vicariously liable for his torts according
to the principles of Mersey Docks v. Coggins, is also the employer
"who owes him the duty of care." This is the result of the decision
in O'Reilly v. Imperial Chemical Industries Ltd.59 In that case, the
plaintiff, lorry driver, was employed by British Road Services who
paid him and had power to dismiss him, but he and his lorry were
put at the disposal of the defendants on a full time basis. The
defendants controlled and assisted in a general way the loading
and unloading of the lorry but, because an unsafe method of
loading was adopted, the plaintiff received injuries as a result of
the fall of a drum of Terylene. He claimed damages for negligence
against defendants. It was held that his claim could not succeed.
The plaintiff had failed to show that the defendants had the right to
direct how the unloading was to be carried out and, for this reason,
the relationship of master and servant did not exist between them
for the occasion of the unloading of the lorry and the defendants
did not owe to the plaintiff the duty of providing a safe system of
work.
3. Control test
This test considers the person who controls the workman as his
employer and therefore the one who is vicariously answerable for
his wrongs. As in many other aspects of the law, it is a matter of
degree. In Performing Right Society Ltd. v. Mitchell & Booker it
was held that the determination depended on the nature and degree
of detailed control over the person alleged to be a servant; Yewens
v. Noakes: employee was anyone who was subject to the
command of the master as to the manner in which he shall do his
work."
In Kussasi v. Ghana Cargo Handling Co., it was said that the test
is:

"Does the alleged master have power of controlling his acts and
dismissing him for disobedience"?

Though treated at the end of this chapter, the reader must

remember that in practice, the determination of whether A is B's
employer will be the first point in the application of the vicarious
liability principle.

Chapter 23

NEGLIGENCE IN RELATION TO PREMISES OR

OCCUPIER'S LIABILITY

(i.e. liability for damage which occurs on the premises)

Introduction

The obligations of the occupier for damage which occurs on his

premises depend on the character of the entrant. In this respect, the
law draws a distinction between lawful and unlawful visitors.
The term, "lawful visitors," covers four categories of entrants:
(1) contractual visitors;
(2) invitees;
(3) licensees (non-business); and
(4) persons entering as of right, e.g. policemen, factory inspectors,
meter-readers etc. Contractual visitors are persons who enter the
premises in pursuance of a contract. An invitee is a person who
enters the premises for a purpose in which the visitor and the
occupier have a mutual economic, material or business interest;
that is to say one who enters premises to do business with the
occupier or a person both permitted to enter and whose entry is in
the interest of the occupier, e.g. a customer in a shop. A licensee is
the one who enters premises by the permission of the occupier for
a social purpose, e.g. a person permitted to take a short cut across
land or a social visitor. Thus a person whose presence is only
tolerated is also a licensee.
An occupier is the one who is in occupation or control of the
premises. He or she need -not be a lessee; only a right to the
possession of the premises occupied with a power to exclude
therefrom all other persons. The unlawful visitor is the trespasser.
Let us now look at the obligation of the occupier as it relates to
each type of entrant or visitor.

LAWFUL VISITORS

1. Contractual Visitors
Where there exists a contract between the parties, the nature and
extent of the occupier's obligations in relation to the safety of the
premises will be a matter of construction from the contract. More
often than not the contract does not contain any clause on the
safety of the premises. If the contract is silent on the point, a term
will be implied into the contract. What the term is will be
determined from the contract generally. But, essentially, it is that
the premises are safe for the purposes contemplated by the parties.
Thus, in Frances v. Cockrell, the defendant and some other
persons engaged the services of an independent contractor to erect
stands for the accommodation of persons who wished to watch
some steeplechase races. The plaintiff who had paid for admission
was injured, when the stand, as a result of being negligently done,
collapsed. Neither the plaintiff nor the defendant knew that the
stand had been improperly constructed. It was held that there was
an implied warranty in the contract between the plaintiff and the
defendant, that due care had been used in the construction of the
stand by those whom the defendant employed to do the work. This
warranty was breached by the collapse of the stands. Therefore,
the defendant was liable to the plaintiff.
Again in Maclenan v. Segar, the plaintiff, an unmarried woman
claimed damages from the defendant, as a result of a fire outbreak
at the defendant's hotel, while the plaintiff was staying there as a
guest. It was found that the fire resulted from the absence of
reasonable skill and care on the part of those who carried out a
kitchen fire scheme earlier and that the defendant was negligent in
not making further inquiry than he did after a previous fire
outbreak. It was held that, by the contractual relationship existing
between an innkeeper and a guest, there was an implied warranty
by the keeper that the inn-premises were, for the purpose of
personal use by the guests, as safe as reasonable care and skill on
the pail of anyone could make them. The innkeeper was, however,
not responsible for defects which could not reasonably be
discovered by inspection as far as the construction, alteration,
repair or maintenance of the premises are concerned. Again the
defendant was held liable to the plaintiff.
The duty owed then is that an occupier warrants that his premises
are as safe, for the purposes of the contract, as reasonable care and
skill on the part of anyone can make them. It matters not that the
negligence is that of the occupier's servants or independent
contractors. Premises for this purpose would include buildings,
vehicles, race-stands, railway carriages, etc.
However, where the occupier could not have discovered the
defect, even by the exercise of reasonable care, there is no liability.
A case in point is Gillmore v. L.C.C. Here the plaintiff joined a
physical training class, organised by the defendant council, for a
small fee. While engaged in one exercise, involving hopping on
one leg and lunging at another to force her to put her raised leg
down, the plaintiff slipped and suffered injury. The whole class, at
that time, were wearing rubber shoes. It appealed also that there
had been a discussion as to whether the floor should be covered
with matting or It was held that the duty of the council was to
provide a floor which was reasonably safe in the circumstances
and this they had failed to do. Furthermore, that the accident did
not result from a risk which the plaintiff had agreed to take, and so
the defence of volenti non fit injuria was not available.
The above case involved the interior of premises. A case on the
exterior was Bell v. Travco Hotels. The plaintiff, a paying guest at
the defendant's hotel, fell and suffered injuries while walking
down the quarter-mile drive-way which was for pedestrians to and
from the hotel. He claimed damages for breach of a warranty the
premises were as safe as reasonable care and skill could make
them, and they failed to warn her, an invitee, of an unusual danger
on their premises. The trial judge found for the plaintiff. But, on
appeal, the judgment was reversed on the grounds that the duty
was only owed in respect of the interior of premises. The only
duty here was to see to it that the drive-way was reasonably safe
for pedestrians and that the defendants had discharged this duly,
and that there was no unusual danger here also.
Thus, it will be seen that, in the above case, both Lords Goddard
and Singleton felt that the principle of duty of care of an occupier
to contractual visitors was relevant only to the interior of premises.
However, Charles Worth has argued that the principle should be
the same in spite of Lord Goddard's view. The present writer
agrees with Charles Worth and would urge that position for
Ghanaian Law. Premises should be taken as a whole that is with
both the internal and external parts. The difference in the liability
would then depend on the character of the entrant.
It is no defence for the occupier to say that the defect was an open
danger which was obvious to all. The occupier must see to it that
his premises are safe for the purposes of his contract. If the
premises are used for sports or to watch entertainment, the
warranties are that the premises are fit for that purpose, having
regard to the normal risks of that entertainment or sport.

2. Invitees
As noted earlier, these are persons who come to the premises for a
purpose in which the occupier has a material interest. Such is the
case of Indemaur v. Dames. The plaintiff, a journey-man gas fitter
in the employ of a patentee, went on to the defendant's premises to
examine several burners and to test new apparatus they had fixed
on the defendant's premises. While thus engaged, and in
circumstances in which the evidence is conflicting, he fell through
a hole accidentally, without any fault or negligence on his part and
was injured. The hole was used by the defendant in connection
with his sugar business. It was held that, in as much as the plaintiff
was upon the defendant's premises on lawful business, in the
course of fulfilling a contract in which he or his employer and the
defendant both had an interest and the hole or shoot was from its
nature unreasonably dangerous to persons not usually employed
upon the premises, but having a right to go there, the defendant
was guilty of a breach of duty towards him in suffering the hole to
be unfenced.
The duty, then, is that an occupier must take reasonable care to
prevent injury to the invitee from unusual danger of which he
knows or ought to know. What is unusual danger? Perhaps a
danger is still unusual even though it is known. It is unusual, if it is
not customary to have such a danger in the place where it is found;
for example, an unguarded hole leading to an office block is an
unusual danger. Or a train approaching a level crossing with the
gates open; or pieces of glass at a park where children play; or
trees lining an airport.
Even if there is an unusual danger, the occupier is only liable for
those dangers about which he knows or ought to know. The law is
that he ought to know those dangers which are discoverable by the
exercise of reasonable care and skill. In Griffiths v. Smith,8 the
managers of a school, created by the Education Acts, issued
invitations to, among others, the appellant to attend an exhibition,
on the school premises, of work done by the pupils, one of whom
was the appellant's son. While this display was in progress, the
floor of the room collapsed and the appellant suffered severe
injuries in respect of which she sued the manager for damages. It
was held that:
1) the managers were a public authority within the
protection of the Public Authorities Protection Act, 1893;
2) the authorisation of the display was in exercise of their
functions as such;
3) the neglect or default proved against the managers was the
neglect or default in the exercise of their statutory duty;
4) the appellant was an invitee and not a mere licensee; and
5) the action failed not having been brought within six months
by the appellants as required by statute.

The law is that, to discharge the duty, the occupier must warn the
invitees through notice or lighting, guarding or otherwise, to
prevent injury to them. Danger perhaps ceases to be a danger when
warning is given or when it is obvious enough or ought to have
known by a reasonable person.
The law protects an invitee so long as he keeps within the limits of
his invitation. If he exceeds his invitation, he may become a
trespasser, e.g. a guest in a hotel, as an invitee, remains so, for as
long as he keeps within that part of the hotel to which reasonably
expected to be: see Walker v. Midland. — the guest who went to
look for the w.c, but entered the well of a lift and died. So, for
example, a door marked private may mark the limits of one's
invitation. How about a male guest who enters a door marked
"Ladies"?

But for a child, the situation may be different. Thus, in Pearson v.

Coleman Bros., the plaintiff, a seven year old girl, who had gone
to watch a circus with her twelve year-old sister, went out during
the performance to relieve herself. There was no lavatory and so
she got out of the fence and, seeing an attractive spot for her
purpose, went there to do her thing but, in so doing, she came near
to the lions' cage and was mauled. In a claim by the plaintiff for
damages, it was held that, as the plaintiff was an invitee to the
circus and wandered about not out of curiosity but in a reasonable
search of a secluded spot to relieve herself, she must be taken to
have reached the spot where she was injured pursuant to the
original invitation to the circus. It was not clear whether the zoo
lager had been sufficiently marked off to show the child that it was
a prohibited spot and so the defendants were liable in damages, as
keepers of dangerous beasts, for a breach of a duty to the plaintiff
to keep the beasts so confined as to be incapable of injuring her.

We may compare this decision with Mersey Docks & Hbr. Brd. v.
Procter. In this case, the husband of the respondent widow was
working on some ship and left to go to the toilet in a thick fog. The
man's body was found in the west float (there were two floats -
east and west - and the deceased was working in the east float)
opposite to a point where there was a gap in the line of chains, the
chain having been taken down for the convenience of some men
working on the quay and having been left down for several days.
The quayside of the west float was nearly 50 yards out of the
man's proper course. The widow brought this action under the
Fatal Accidents Act, 1846 against the appellants for damages for
the husband's death. The majority of the House of Lords (three to
two) held, reversing the Court of Appeal's decision, that, in the
circumstances, the failure of the appellants to keep the chain in
position was not a breach of any duty owed by them to the
deceased and that the action must fail.
It is clear also therefore that an invitation may be limited as to
place and as to time. So that customers may not be considered as
invited after the shutters have been let down.

3. Licensees
Licensees are entrants with permission to enter for their own
purposes, as distinct from mutual interest, or where there was
mutual interest, it is not of a business or material nature. So a
licensee is a person on premises with the permission of the
occupier given as a matter of grace and not as a matter of business
and the law ignores the worldly advantages which the licensor
may have in mind. In Mersey, Docks v. Procter, Lord Sumner
summed up the position neatly thus:

"a licensee takes premises which he is merely permitted to enter as

he finds them. The one exception to this is that the occupier must
not lay a trap for him or expose him to a danger not obvious nor to
be expected there under the circumstances. If the danger is
obvious, the licensee must look out for himself... As is usual in
cases of duties of care, the reasonable man is the standard on both
sides. The licensor must act with reasonable diligence to prevent
his premises from misleading or entrapping a licensee. ...
The licensee is to take reasonable care of himself and cannot call a
tiling a trap, the existence of which a reasonable man would have
expected or suspected, so as to guard himself from falling into it."

The duty of the occupier then is to warn the licensee of concealed

dangers actually known to him and not known to the licensee or
obvious to him. So, unless there is a hidden trap or tenor, there is
no duty. If the danger is obvious, the licensee will fail because no
duty of care is owed him. If a reasonable man using reasonable
care would have seen it, then it is an obvious danger. The point
may be further illustrated by the decision in Fairman v. Perpetual
Investment Building. In this case, the plaintiff lodged in a Hat, let
out by the defendants, with her sister, on the fourth floor of which
her sister's husband was tenant. While descending the stairs, she
caught her heel in a depression, fell and was injured. In an action
against the defendants for damages, the trial judge found that:
(1) the defendants were not guilty of negligence;
(2) the state of the staircase was not dangerous at the lime of the
accident;
(3) the depression which caused the plaintiff to fall was not in the
nature of a concealed danger or trap, but was obvious and could
have been seen by the plaintiff, if she had looked. On appeal, the
House of Lords held that the only duty owed by the defendants to
the plaintiff was not to expose her to a concealed danger or trap
 and that the action failed because, on the facts as found, this
particular danger was obvious.
Once permission has been given to people to use the premises, the
occupier has to warn them of new dangers created by him. Thus, in
Lowery v. Walker, the defendant did not prevent members of the
public from crossing his field on the way to the railway station, but
put a horse which, to his knowledge, was savage in that field and i
attacked and injured the plaintiff, as he was making his way across it.
It was held that tin; plaintiff who was not a trespasser, was entitled to
damages
If a danger is not known to an occupier then no duty is owed by him.
Thus, in Morgan v. Girls' Society,1* the plaintiff, on his way to visit
the tenants of offices in a building owned by the defendants, saw the
lift door partially open and, thinking the lift was there, stepped
through the door, fell down the shaft and was injured. In an action
against the defendants for damages, the defendants argued that they
had contracted with independent contractors to keep the lift in good
working order and that they did not know and could not reasonably be
expected to have known that the lift was out of order. It was held that
the plaintiff was a licensee, the negligence was that of the independent
contractors and that there was no trap of which the defendants knew
or ought to have known. So, judgment was given for the defendants

UNLAWFUL VISITORS

Trespasser
A trespasser is one who enters the land and has neither the
right nor permission to be there. His presence is unknown,
and, if known, is practically rejected by the occupier. The law
on trespass was governed by Addie's case until 1972.
According to Lord Dunedin in Addie's case, the term covers
the wicked and the innocent; the burglar; the arrogant invader
of another's land; the walker blindly unaware that he is
walking where he has no right to walk; or the wandering
child.
The law before the decision in Addie 's case was that neither
the occupier nor servants should inflict intentional injuries on
a trespasser. The steps taken by the occupier towards the
trespasser must be reasonable. Thus, in Bird v. Holdbrook,
the defendant set a spring gun in his garden with a view to
protecting his tulips "of the choicest and most expensive
description", some of which had recently been stolen. When
the plaintiff entered the garden for the innocent purpose of
recovering a pea-hen which had strayed there, he set off the
gun and received severe injuries as a result. It was held that,
he was a trespasser, the plaintiff was entitled to damages as
the defendant displayed notices warning of the presence of
the guns.
Generally, however, a trespasser enters premises at his own risk,
except, as aforesaid, deliberate harm is not to be caused to him.
However if the trespasser's presence is known, the occupier must
refrain from doing anything with reckless disregard of his presence.
So it was held in Excelsior Wire Rope Co. v. Callan. Here a
company, having works near a railway, under a licence from an
adjoining landowner, constructed a siding on the land and erected a
post on it to which a pulley block called sheave was attached. The
siding adjoined some fields which were let to the local authority as
playground. The fence between the siding and fields had
disappeared and, to the knowledge of the company, children
frequented the siding and played around the sheave without
interruption except when the haulage machinery was about to be
put into motion, which occurred about three times a week. On one
occasion, when haulage machinery was about to be moved, two of
the company's employees went to the sheave to see that the rope
was properly adjusted and to drive away children as was customary.
When the men went back to start the machine, a little girl, aged
five, was seen swinging on the rope and the movement of the rope
caused her hands to be caught in the pulley and crushed. Her
brother, aged nine, was similarly injured, while coming to her
rescue. In an action by their father against the company for injuries
sustained by the children, it was held that, since the company was
aware that the children were likely to be in the area, they had failed
in their duty not to expose the children to the danger and, the
danger being apparent, it was not material whether the children
were trespassers or not. The company was liable.
The occupier is also not to create new dangers without warning.
And so in Mourton v. Poulter the defendant felled a large elm tree
which was growing on land on which children, who were
trespassers, were playing at the material time and it fell on and
injured the plaintiff, a ten year old boy. The plaintiff was held
entitled to damages as the defendant had committed a breach of the
duty that he owed even to a trespasser not to do any act, which
would alter the condition of the land and might injure him without
giving him a warning once his or her presence on the occupier's
land is known to the occupier. However, to make the occupier
liable, there must be some act done with the deliberate intention of
doing harm to the trespasser, or at least some act done with reckless
disregard of the presence of the trespassers.
Then came Addle v. Dumbreck. In this case, a four year old boy
was crushed to death in the terminal wheel of a haulage system
belonging to colliery company. The haulage system was on some
field which was insufficiently fenced to keep out the public. The
wheel was dangerous but attractive to children who played in the
vicinity. The accident occurred because the wheel had been set in
motion by the company's servants without any measures to avoid
accident to persons who frequented the place. The boy had been
warned off the area by his father, hi an action for damages by the
father against the company, it was held that the boy was a
trespasser and went on to the company's premises at his own risk,
and that the company owed him no duty to protect him from injury.
The company could therefore not be in breach of a non-existent
duty. Thus Addie's case established the principle that, generally
speaking, no duty is owed to the trespasser.
A small exception was made to the Addie case, in Videan v. B.T.C.
Here, a two year old boy, son of a village stationmaster, who lived
with his family in the stationmaster's house adjoining the platform,
strayed onto the railway track from the platform. His father, a
stationmaster who was off duly, saw his son's life threatened by the
approach, at considerable speed, of a power-driven trolley. He and
the porter ran along the platform trying to signal the trolley driver
who could not understand them and only realised what was
happening when it was too late. The stationmaster, to son, jumped
from the platform onto the track in the path of the trolley and thugh
this action saved the boy, he himself was instantly killed, while the
boy sustained serious injuries. In an action by the widow in respect
of the husband's death and on behalf of the child against the B.T.C.,
the trolley-driver's employers, the judge found that the driver had
been at fault in driving too fast in wet conditions, in not keeping a
proper look-out and in not braking hard enough soon enough, and
that, if he had been taking care, the accident might have been
prevented. But he held
(a) that the child was a trespasser and that, as the driver's
negligence was not reckless or deliberate, he was not in breach of
the duty owed to a trespasser; and
(b) that the rescuer of a trespasser could be in no better position
than the rescued, and he dismissed both claims. On appeal, it was
held, dismissing the child's claim: (a) that the child was a trespasser
and there was no evidence that the presence of a child trespasser in
that place was foreseeable or ought to have been foreseen by
anyone;
(b) that the duty of an occupier to a trespasser was the duty to t2Lke
care not to injure trespassers whose presence was foreseeable or
reasonably to anticipated, having regard to all the circumstances,
including the gravity and likelihood probable injury, the character
of the intrusion, the nature of the place where the trespass occurred
and the state of the occupier's knowledge. Since the driver did not
know of nor could he anticipate the presence of a trespassing child
on the track and at no stage acted recklessly, the defendants were
not in breach of duty owed to a trespasser. However, allowing the
widow's claim in respect of the stationmaster, it was held that the
presence of the stationmaster in the performance of his duty to deal
with any emergency was well within the trolley-driver's
contemplation as a person towards whom he owed a duty to take
reasonable care and because the judge found that the driver, in
approaching he station, was acting negligently in relation to anyone
to whom he owed a duty of care and that negligence caused the
accident, the stationmaster, as the rescuer of a trespasser on the line
has a right of action independent of that of the trespasser and the
defendants were liable to the widow for his death.
Lord Denning M.R. was of the view that the position would have
been the same, if the rescuer had been a mere passer-by and not the
stationmaster rescuing his son, for a person who by his fault creates
a situation of peril must answer for it to anyone who attempts a
rescue, whether or not the victim rescued has a right of action.
Dissatisfaction with what was felt to be the harsh rule laid down in
Addie led to a number of avoidance techniques: (a) distinction
between occupancy and activity duty; (b) making independent
contractors liable to persons injured on another's land (c) the
concept of allurements or attractions where children were
concerned; and (d) recognising a licence more liberally. Eventually,
these techniques left the law in a mess and great need of refrom.
This led to the decision in Herrington v. British Railway
Board. A six year old child was playing on a field close to a
railway track which had been electrified. He trespassed on to
the line through a broken fence and was, though saved from
death, severely injured. He brought this action for damages
against the defendants who, on the authority of Addie's case,
denied any liability. The trial judge found for the plaintiff and
the defendants appealed. The appeal was dismissed. In
dismissing the arguments of the defendants, the trial judge
was deliberately flouting the decision in Addie's case in the
hope that the defendants would appeal and the appeal would
offer the higher courts the opportunity to reform the law. A
further appeal by the defendants to the House of Lords
offered the chance he had hoped for. The law lords, in
dismissing the appeal, developed the duly of common
humanity. This duly is fully explained in the opinions of Lord
Reid, Wilberforce and Diplock, especially the following
extracts: Lord Read:

"... it appeals to me that an occupier's duly to trespassers must

vary according to his knowledge, ability and resources.
... the question whether an occupier is liable in respect of an
accident to a trespasser on his land would depend on whether
a conscientious humane man with his knowledge, skill and
resources could reasonably have been expected to have done,
or, refrained from doing before the accident, something which
would have avoided it. If he knew before the accident that
there was a substantial probability that trespassers would
come, I think that most people would regard as culpable
failure to give any thought to their presence. He might often
reasonably think, weighing the seriousness of the danger and
the degree of likelihood of trespassers coming against the
burden he would have to incur in preventing their entry or
making his premises safe, or curtailing his activities on his
land, that he could not" fairly be expected to do anything. But
if he could at small trouble and expense take some effective
action, again, I think that most people would think it
inhumane and culpable not do that."

Lord Wilberforce quoting Windeyer J. in Cardy with

approval:

"The trespasser in his relation to the occupier, thus, really

 stands outside the law of negligence, for to him, considered
simply as an entrant upon the land, the occupier has no duty
of care. Such a duty may, however, arise from some
circumstances beyond the mere facts of entry, as for example,
from the occupier's knowledge of the trespasser's presence
and of his proximity to dangerous operations. It arises, not as
a duty to him as a trespasser, but to him as an individual
whose relation to the occupier has become that of a
'neighbour'. No man has a duty to make his land safe for
trespassers. But, if he has made it dangerous and the danger
he has created is not apparent, he may have a duty to warn
people who might come there of the danger of doing so.
Whether there be such a duty in a particular case must depend
upon the circumstances, including the likelihood of people
coming there. But if they would be likely to come, the duty
does not, in my view, disappear, because in coming they
would be trespassing. It is a duty owed to likely comers, to
those who would be intruders as well as those who would be
welcome."

Summarising the occupier's duty of common humanity to

trespasser, Lord Diplock said:

"First: The duty does not arise until the occupier has actual
knowledge either of the presence of the trespasser upon his
land or of facts which make it likely that the trespasser will
come which are likely to cause personal injury to a trespasser who
on to is unaware of the danger. He is under no duty to the
his trespasser to make any inquiry or inspection to ascertain
land; whether or not such facts do exist. His liability does not arise
and until he actually knows of them.
has Secondly: Once the occupier has actual knowledge of such
also facts, his own failure to appreciate the likelihood of the
actua trespasser's presence or the risk to him involved, does not
l absolve the occupier from his duty to the trespasser if
knowreasonable man possessed of the actual knowledge of the
ledge occupier recognize that likelihood and that risk.
of ThirdlThe duty when it arises is limited to taking reasonable
facts steps to enlable the tresplly the asser to avoid the danger.
as to Where the likely trespasser is achild too young to understand
the or heed a written or a previous oral warning, this may involve
condiproviding reasonable physical obstacles to keep the child
tion away from the dinger. Fourthly: The relevant likelihood to be
of hisconsidered is of the trespasser's presence at the actual time
land and place of danger to him. The degree of likelihood needed
or to give rise to the duty cannot, I think, be more closely
activi defined than as being such as would impel a man of ordinary
ties humane feelings to take some steps to mitigate the risk of
carri injury to the trespasser to which the particular danger exposes
ed him, It will thus depend on all the circumstances of the case;
upon the permanent or intermittent character of the danger; the
it, severity of the injuries which it is likely to cause; in the case
 of tiveness to them of that which constitutes the dangerous
child object or condition of the land; the expense involved in giving
ren, effective warning of it to the kind of trespasser likely to be
the injured, in relation to the occupier's resources in money or in
attrac labour."

The degree of likelihood of the trespasser's presence on the

land appearss not governed by ordinary principles of
foreseeability. In Herrington v. British Railways Bd. the
House of Lords spoke of substantial probability of trespasser's
presence. See also Ogwo v. Taylor.

The test of common humanity

1. The duty of common humanity combines an objective and a
subjective test. Objective because it is measured by the conduct of
the reasonable man. But subjective because this measure is only by
reference to the knowledge of the particular occupier
2. The content of the occupier's duty, that is the level of
precautions expected of him also embodies subjective
considerations. The occupier's duty varies according to his
knowledge, ability and resources because trespassers force a
relationship of "proximity" or "neighbourhood" on the occupier.
Thus a trespasser should expect an impoverished occupier to take
fewer precautions than a wealthy one.
3. One important point to keep in mind is that the rule in Addie
has not been jettisoned
by these more recent and less harsh rules. It is still the law that an
occupier does not normally owe a trespasser a duty of care. The
recent developments have merely modified the Addie rule to
accommodate or take account of situations where the occupier
becomes aware of the presence of the Trespasser or the real
likelihood of that presence. The duty of common humanity strictly
therefore is not entry related but arises from knowledge of the
presence or is presence-related. This is unlike the duty to lawful
visitors which is entry related.
The operation of the test of humanity used by the House of Lords
for determining the liability of the occupier towards trespassers in
the light of present social conditions in Herrington v. British
Railways Bd,.can be seen in the case of Pannett v. McGuiness &
Co. Here, demolition contractors were occupiers of a site in a busy
urban area where large numbers of children were to be expected.
At the completion of the demolition, it became necessary to bum a
quantity of rubbish on the site. The defendants realized that this
activity would be an attraction to children and so employed three
workmen to keep the children away. The latter had chased
children, including the plaintiff, a child of five, away on several
occasions. One afternoon, the three men absented themselves from
the site at a time when a fire was burning and during this period,
the plaintiff entered the site and was burned. The Court of Appeal,
in holding the defendants liable, stressed the hazardous nature of
the activity and its attraction to children, together with the
substantial likelihood of trespass. In these circumstances, the
occupier's duty went beyond merely chasing the children away and
the defendants were therefore vicariously liable for the default of
their men in absenting themselves from the site.
This decision is obviously in line with the duty of common
humanity. The defendants employed the men to keep the children
away from the fire because they recognized the need. But, having
employed the men, is it fair to expect them to take additional steps
to ensure that the men were never absent while the fire was
burning? Should the fact that the defendants were not aware, on
that day, that their men were absent matter in determining their
liability? Is the employment of the vicarious liability principle to
circumvent the defendants' lack of knowledge that their men were
absent fair, reasonable and just to them?
It is submitted that the decision may have been different if the
plaintiff were not a child.
Chapter 24

NEGLIGENCE IN RELATION TO CHATTELS

At first, the law concerned itself with negligence in relation to

chattels dangerous in themselves. Thus in Dixon v. Bell, it was held
that a master who entrusted a loaded gun to a young servant was
liable to a third party injured by the servant's firing of the gun on the
ground that the chattel was in a state capable of doing mischief. But
then no firm rule was made. So, when in Langridge v. Levy, the
defendant sold a gun, having a concealed defect in it, to the father of
the young plaintiff, and the plaintiff was injured in consequence of
the defect in the weapon, the court was invited to deduce from
Dixon v. Bell the principle that there was liability for putting into
circulation things of a dangerous nature, the court refused. However,
it found for the plaintiff op the ground of fraud of the defendant in
misrepresenting the facts relating to the gun. Still, it is fair to note
that, at one time, the classification of a chattel as dangerous or not
was important for this type of negligence.
In the course of time, attempts were made to modernise the laws as
far as dangerous chattels were concerned. A major step was taken in
Heaven v. Pender. Here the plaintiff, an employee of an independent
contractor engaged by the defendant, was painting a ship in the
defendant's dock, when he was injured because a rope supplied by
the defendant, slinging the staging on which he was standing, was
defective. There was evidence of failure by the defendant to take
care, but it was not found that he knew of the defect. It was held
that, just as he would be liable as invitor had he remained in control
of the dock, by analogy with that rule, he would be liable for
appliances supplied for immediate use in his dock, although he
handed over control of the dock to the plaintiff's employer, there
was a duty to take care in respect of dangers of which the defendant
ought to be aware. Lord Justice Cotton summed up the situation
neatly thus:

"Anyone who ... without due warning supplies to others for use an
instrument or thing which to his knowledge, from its construction or
otherwise, is in such a condition as to cause danger ... is liable for
injury caused to others by reason of his negligent act."

Again in Dominion Natural Gas Co. v. Collins, the plaintiff was

injured by an explosion of gas an apparatus negligently installed by
the defendants, and he was held to be entitled to recover. The court
per Lord Denning advised:

"what that duty (of care) is will vary according to the subject-matter
of the things involved. It has, however, again and again, been held
that, in the case of articles dangerous in themselves, such as loaded
firearms, poison, explosives and other things "ejusdem generis",
there is a peculiar duty to take precaution imposed upon those who
send forth or install such articles when it is necessarily the case that
other parties will come within their proximity."

From the cases therefore, before 1932, the following general

principles emerged:
(1) in the case of articles dangerous in themselves there is a duty
on those who distribute them to take the necessary precaution.
(2) It is also clear that there is liability on those who send forth
those things.
(3) The duty is owed to the immediate transferee as well as to any
other person into whose hands the article falls, provided that due
notice is not given.
The phrase "chattels dangerous in themselves" has been applied to
loaded guns, gas, poison etc. Though there is no such declared class,
the essential point is that certain things require more care and the
courts will recognise a duty of care accordingly. In respect of cases
involving things not dangerous per se, a duty is imposed if: (a) there
is a contractual relationship between the seller and the user of the
article; and (b) if the defect is known to the seller and he does not
disclose it to the purchaser. In such a case, the duty is to an
immediate transferee only.
Then came the decision in Donoghue v. Stevenson. In this case a
shop assistant, the appellant, drank some ginger-beer which had
been manufactured by the respondents. The ginger-beer which was
in a dark, opaque bottle had been sold by the respondents to a
retailer who in turn sold the drink for consumption by the appellant.
The drink was bought for the appellant by a friend. As a second
glassful was being poured out for her, the appellant noticed a
decomposed snail float out of the bottle. She became seriously ill
and claimed damages for negligence. It was held that the
respondents owed the appellant a legal duty to take care that the
bottle did not contain noxious matter and they would be liable to her
if that legal duty was broken, as die manufacturer of an article of
food, medicine or the like, sold by him to a distributor in
circumstances which prevent the distributor or the ultimate
purchaser or consumer from discovery, by inspection, of any defect,
is under a legal duty to the ultimate consumer to take reasonable
care that the article is free from defects likely to cause injury to
health. Lord Atkin developed the law thus:

"You must take reasonable care to avoid acts or omissions which

you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law, is my neighbour? The answer seems
to be - persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions
which are called in question."

And so, from this case, we have the modern products liability
principle which states that:
"... a manufacturer of products, which he sells in such a form as to
show that he intends them to reach the ultimate consumer in the form
in which they left him with no reasonable possibility of intermediate
examination and with the knowledge that the absence of reasonable
care in the preparation or putting up of the products will result in an
injury to the consumer's life or property, owes a duty to the consumer
to take that reasonable care."

The courts have not been content to keep within this rule and the
words emphasised above have been extended in later cases. For the
subsequent development of principle therefore, we turn to the
expansion of the principle through' the extension these words.

Manufacturer

The cases have held that manufacturer includes producers,

repairers, masons, assemblers and even suppliers of articles,
provided that these suppliers have done some work on the article
supplied. Thus, in Brown v. Cotterill, the defendant, a monumental
mason, negligently erected a tombstone, as a result of which it fell
on the plaintiff who was lawfully in the churchyard. He was held
liable in negligence applying the principles in Donoghue v.
Stevenson, thus making a mason a manufacturer. The term will not
apply to retailers except second hand car dealers.
Product
The in product Donoghue v. Stevenson itself was an article of food
to be taken internally, but this does not affect the extent to which
the principle applies. In Grant v. Australian Knitting Mills Ltd., the
plaintiff bought some "golden fleece" woollen underwear and
contracted dermatitis, because the garment contained excess
sulphite which, it was found, had been negligently left in it in the
process of manufacture. The defect could not have been detected
by reasonable examination. It was held that the plaintiff could
recover damages in contract from the retailers for breach of an
implied warranty or condition under the Australian legislative
equivalent to section 14 of the English Sale of Goods Act, 1893
and that the manufacturers were liable in tort as they were in
breach of their duty of care. From this case, it is clear that the
product, to which the principle would be applied, could involve
things taken internally or externally or merely for other use
vehicles or buildings. Thus product means any item capable of
causing damage, e.g. hair dye, lifts, underpants.

Sale
Going strictly by Lord Atkin's formulation in Donoghue v.
Stevenson, it might be argued that the principle should apply only
if the product was the subject of a sale transaction. But there seems
to be no difference between a sale and a supply of free samples.
Certainly, this was the point made by Lord Denning in Hawkins v.
Couldson & Purley U.D.C In this case, the Plaintiff, a licensee, fell,
while descending the steps of a house in the possession of the
defendants and suffered injuries. The defective condition of one of
the steps combined with the insufficiency of light, amounted to a
concealed danger.
The physical facts which constituted the danger were known to the
defendants, through their officials, but they did not appreciate the
risk involved. Applying the objective test the judge found that a
reasonable man would have appreciated the danger and held the
defendants liable in negligence. On appeal, it was held that the
judge had applied the proper test and rightly found against the
defendants. In the course of this judgement, Lord Denning
expressed the view that, whether the goods are supplied through
sale or gift of samples,
the manufacturers will be liable in negligence, if injury results. He
said further that, if the hospital authorities treat a patient
negligently, they should be liable even though the services were
rendered gratuitously. So also when a driver gives a friend a lift.
In Lord Denning’s own words in Hawkins v. Coulsdon & Purley
U.D.C.:

"Suppose that the manufacturer of a special soap sends out samples

by way of gift to members of the public, and owing to negligence
in manufacture, a user of the soap suffers from dermatitis. Surely
there is a cause of action, even though the manufacturers did not
actually know of its evil character at the time. Again suppose that
hospital authourities treat a patient negligently, they are liable, even
though they give their services gratuitously. If they give him food
which through their carelessness has been mixed with some
injurious ingredient, are they not also liable even though they did
not know of its injurious character. There is no difference in
principle between such cases and the case where the driver of a car
gives a friend a lift.

Ultimate consumer

The consumer in Donoghue v. Stevenson was the ultimate user of

that chattel.The term covers any user whether known or unknown,
to the manufacturer, i.e. any one foreseeably harmed by the
"defective" product. In the case of Stennet v Hancock the term, was
extended to include a bystander. In that case, the defendant garage
owner negligently reassembled the flange on the wheel of X's lorry.
When, later, X was driving the lorry on the highway, the flange
came off, the lorry mounted the pavement and injured the plaintiff
a pedestrian. Following Donoghue v. Stevenson, the defendant was
held liable for his negligent repair. Thus the trend is to extend the
term to cover anyone foreseeably harmed by the "defective"
product.

No reasonable possibility OF INTERMEDIATE EXAMINATION

In Donoghue v. Stevenson, the drink was in opaque bottle. So the
appellant could not see the “defect”. If the plaintiff knows of the
defect and still uses the chattel, then, this may affect the liability of
the manufacturer. If the consumer detects the defect but uses the
product, the manufacturer may not necessarily be absolved
completely of liability; the consumer might be held to be
contributorily negligent.
The test therefore is not whether intermediate inspection is
possible, but whether the manufacturer contemplated that any
defect in the goods will remain there at the time of their use by the
plaintiff, despite their passing through many intermediaries. Defect
here, it must be noted, does not carry the ordinary dictionary
meaning; but refers to the THING in the product which caused the
plaintiffs injury. The tiling could be good or bad. The question, in
other words, is whether the manufacturer contemplated
intermediate examination of the product before its use. So it was
held in Dransfield v. British Insulated Cables per Hawke J. The
plaintiff was the widow of a deceased employee of the
Bournemouth Corporation, who was killed by the breaking of a
bull-ring, when knocked from a wagon. The defendants, were
manufacturers of the bull ring which was used by Bournemouth
Corporation. The plaintiff brought this action alleging that the
breaking of the bull-ring was due to the negligence of the
defendants in the course of welding it for the purpose for which it
was used. The defendants denied negligence and also argued that
they were under no duty to the deceased with whom they had no
contractual relations. It was held that, although the defendants were
negligent in the manufacture o F the ring and that negligence
caused the accident, the defendants, as manufacturers, were not
liable in damages to the plaintiff because there was a reasonable
possibility of intermediate examination by the Bournemouth
Corporation, which would have disclosed the defect in the
manufacture of the ring.

Points to note:
L The essential factor is that the consumer must use the product
exactly as it left the manufacturer. And use it as it is intended to be
used.
2. The mere opportunity for inspection after it has left the
manufacturer will not be enough.
3. If the manufacturer gives a warning or instructions relating to
use of the product (e.g. test before use) this may be sufficient
discharge of the duty.
4. If the consumer misuses the product in an unfashionable way,
the manufacturer will not be liable: See Aswan v. Lupdine, e.g.
using a biro pen to open a milk tin

Want of reasonable care

The House of Lords in Donoghue v. Stevenson was not called upon
to find out who was negligent and at what stage in the preparation
of the product. But Lord Macmillan, in his judgment, said that the
burden of proof lay on the plaintiff and that, in sue i a case, there
was no room for the application of the maxim res ipsa loquitur.
With this may be compared the position in Grant v. Australian
Knitting Mills,1 where the rule was applied and it was not expected
that the plaintiff would single out the person who was negligent. It
was left to the court to presume negligence from all the
circumstances.
In Ghana, res ipsa loquitur will apply. In
v. Kumasi Brewery Ltd the plaintiff, while drinking with some
friends, found a rotten palm-nut in the beer bottle after he had
drank about three-quarters of the contents of the bottle. He said that
he felt funny after seeing the rotten nut and fell sick. In the night,
he was actually sick and had frequent stools. He was examined in
the morning by a doctor who stated that the vomiting and the
diarrhoea were caused by food poisoning. In an action for
negligence by the plaintiff, the defendants denied that the beer
contained any nut at all or that they had been negligent. The court
had to decide three questions, namely: (1) was the nut in the beer:
(2) was this caused by negligence of the defendant; and (3) did the
plaintiff become sick as a result of drinking the beer? The court
answered all three questions in the affirmative and judgment was
given in favour of the plaintiff. He was awarded 250 cedis general
damages for pain and suffering. See also Acheampong v. Overseas
Breweries Ltd. and Overseas Breweries Ltd. v. Acheampong. Here,
the plaintiff, who described himself as a 'practiced beer drinker",
drank Club beer which was contaminated with kerosene. The trial
judge found as a fact that the system adopted by the manufacturer
was thorough and carefully devised. The defendants denied
negligence. The court nevertheless held that the fact that kerosene
was found in the beer showed negligence on the part of someone in
the defendants' establishment in spite of their thorough system of
cleaning. The plaintiff was awarded damages of 800 cedis for pain
and suffering.
Clearly, therefore, under Ghanaian law, the maxim res ipsa loquitur
may operate to create a presumption of negligence in appropriate
circumstances.
We may compare these two Ghanaian eases with Daniels &
Daniels v. White where the manufacturers of lemonade which
contained carbolic acid were excused on proof that their method of
filling and cleaning the bottles was fool proof. Is this a fair result?
In this case, the plaintiff's (husband and wife) sued the
manufacturers and the retailer of a bottle of lemonade (R. White's
Lemonade) for injuries received because the bottle contained grams
of carbolic acid. Both plaintiffs relied on Donoghue v. Stevenson in
the action against the manufacturer. The carbolic acid was used in
washing the bottles. The male plaintiff also sued the retailer relying
on the Sale of Goods Act for a breach of an implied warranty
relating to the quality (merchantable quality) because this was a
sale by description. The action under Donoghue v. Stevenson
failed. The judge was of the view that the duly owed by a
manufacturer to the consumer was not to ensure that the product
was perfect (i.e. not strict), but merely to take reasonable care to
see that no injury was done to the consumer and that, on the
evidence, this duty had been completely fulfilled. The male
plaintiff, however, succeeded on the attack by way of the Sale of
Goods Act against the retailer.
Preparation or Putting up
The manufacturer's liability principle is based on control of the
production process of the product by the manufacturer, according
to Lord Macmillan in Donoghue v. Stevenson. Donoghue's ease
thus covers such negligent acts as occur in the actual manufacture
of the products. But, as Street points out in his book," a defect may
be in the container or even in the labeling or packaging of the
product; in such circumstances, the principle ought to apply. In
other words, these activities should constitute "manufacturing" for
purposes of the principle. The principle was also extended to
distributors who might be expected to test the product. See
Newdick; Watson v. Buckley; and Andrews v. Hopkinson

Life or property

Finally, the injury must be to the consumer's life or property. In

1932, when this principle was developed, it could not go beyond
the life or property of the consumer. Even as late as 1947 the courts
would not extend the principle. One case will illustrate this
unwillingness, hi Candler v. Crane Christmas28 the defendants
accountants and auditors were negligent but not fraudulent in
preparing the accounts of a certain company. Relying on the
accuracy of the accountants, the plaintiff subscribed £2000 for
shares. The company went into liquidation and plaintiff lost his
money. He sued the defendant for damages for negligence or
breach of their duty to have accurate information. It was held that
in the absence of a contractual or fiduciary relationship between the
parties, the plaintiffs action would fail, as defendants owed him no
duty. But thanks to Hedley Byrne v. Heller & Partners, the
principle now covers economic loss. See also Murphy v.
Brentwood District Counci.
NB: The liability excludes the defective product itself. Can a
chattel be divided into component parts? E.g. wine bottle; wine and
cork?

Chapter 25

LIABILITY FOR MISSTATEMENTS

Liability for misstatements arises in three main ways:

1. Deceit;
2. negligent misstatement; and
3. defamation.
In this chapter, we shall discuss the first two.

1. DECEIT
(a) Introduction
To succeed in deceit, the plaintiff must be able to establish fraud in
the maker of the statement, i.e. the tort of deceit is committed by
one who makes a fraudulent misrepresentation to another who acts
upon it to his detriment. Fraud, for the purposes of this tort was
defined in Derry v. Peek as a false representation which is made
without any belief in its truth, or, recklessly careless whether it be
true or false. Once fraud is proved, the defendant's motive is
irrelevant.
In addition, there must be a representation of fact made with the
intention that it be relied upon; and the plaintiff must actually have
relied upon the statement. The statement of fact may be oral or
written or intended from conduct. Generally, silence gives no cause
of action. But where a person is under a legal obligation to speak
and he deliberately refuses, he is guilty of fraud.
Where the statement is made to a limited class, then, there is no
liability to those outside the class. The person making the statement
must have made the statement with knowledge that it is false. This,
in tort, distinguishes the careless man from the dishonest one. This
tort seeks to catch only the dishonest men. In other words, the
careless person may be liable in negligence; but the dishonest one
will be liable in deceit. In Arthur v. Basil, it was held that a careless
statement which is not dishonest will not found an action in tort. Le
Lievre v. Gould — shows that the tort addresses intention to
deceive.

(b) Requirements of the tort of deceit

The requirements of the tort are:

(i) the defendant must make a fraudulent representation as defined
in Derry v. Peek, i.e., he must either know that it is false or make it
recklessly, not caring whether it is true or false;
(ii) he must intend that the plaintiff act or fail to act on the
representation;
(iii) the plaintiff must suffer damage as a result of his reliance on
the representation.
Let us proceed to examine these constituent elements.

(i) The Defendant must make a fraudulent representation

A statement of future intention is actionable if at the time of

making it the defendant did not have that intention and there is
sufficient factual content in the representation, i.e. that at the time
of making the statement he did have that intention. Similarly, a
statement of opinion is at least a representation that the defendant
actually holds that opinion .e.g. West London Commercial Bank
Ltd . v. Kitson where a representation about the effect of a private
Act of Parliament was held to be actionable in deceit; however it is
not clear whether this apply to the general law.
There is liability for stating half-truths, ambiguities and actions
taken to conceal the truth, e.g. in Schneider v. Heath where the
defendant took steps to hide from a prospective buyer the fact that
his ship had rotten timber, he was held liable in the tort of deceit
Further, if you are aware that events subsequent to the making of a
statement make it no longer true or you make statement and
discover its falsity later and you fail to correct it, you are liable.
This is different from the situation where you make an accurate
statement of future intention and you change your mind afterwards.
Where a servant commits deceit in the course of his employment,
his master is vicariously liable. There is also liability where a
principal makes a fraudulent representation through innocent agent.
ii) The representation need not be made to the plaintiff e.g.
Langridge v. Levy.
But where the representation is made to a limited class, then there
is no liability to those outside that class: see Peek v. Burney where
it was held that statements in a prospectus issued by the defendant
were intended by him to be acted upon only by those who acquired
shares by subscription from the company ( to whom the prospectus
would have been issued) and not by subsequent purchasers of the
shares on the market. There the fact that it is foreseeable that
plaintiff would rely on the statement is not enough.

(iii)
The plaintiff must rely on the statement must be proved that the
representation was at least one of the reasons for the plaintiff acting
as he did: see Smith v. Chadwick.8 Here the plaintiff bought shares
in a company on the faith of a prospectus which contained the
untrue statement that a certain person was a director of the
company. The plaintiff had never heard of this person; he could
therefore not convince the court that he relied on the statement in
the prospectus. And so his action failed.
(iv) The Plaintiff must suffer damage
Normally a claim in deceit is for pecuniary or economic loss, but
personal injury and property damage are recoverable: see Smith v.
Chadwick. The tort came up in the case of Kusi v. Kusi. In that
case, the defendant was a licensed gold-smith. The plaintiff lent
some money to the defendant. The defendant offered several farms
and an uncompleted house as security for the loan. The defendant
defaulted in paying back the loan. The plaintiff exercised his right
of sale of the properties. Later, the defendant's family sued the
plaintiff and set aside the sale of the properties on the ground that
the properties offered by the defendant as security for the loan
were family properties. The plaintiff then sued the defendant for
deceit saying that though the defendant knew of the family
character of the properties, yet he fraudulently offered them as his
own to secure the loan. Addressing the tort of deceit, the trial
judge, Annan J (as he then was) said:

"The action is in tort for damages for deceit as well as for the
unpaid balance of the loan. To sustain the tort the plaintiff will
have to prove not only that the defendant made representations as
to existing facts which were false to his knowledge but also that he
intended that the plaintiff should act on the false representations
and be deceived by them. There must be proved an actual intention
to deceive the plaintiff. Then the plaintiff must go on to establish
that he was influenced by the misrepresentation, to his detriment.
What is required is proof that he suffered damage as a result of the
 misrepresentation: that is, that the one event caused the other and
that he relied upon the truth of the representation. Clearly if the
plaintiff knew that the representation was false, and a fortiori
where had himself induced the making of the representation or had
acted in conceit with the defendant to defraud a third party, the
plaintiff cannot succeed since he was not deceived and did not in
any case rely on the representation. Again there must be damage to
the plaintiff and this must be proved to be the consequence of his
acting on the representation."

On the basis of the law espoused above and the facts found by the
court from the evidence that was adduced before it, the learned
judge concluded that the plaintiff had made out the tort. Judgment
was therefore given in favour of the plaintiff.
(v) Remedies
Invariably an action for damages, e.g. Doyle v. Olby
(Ironmongers) Ltd.

2. LIABILITY FOR NEGLIGENT MISSTATEMENT

a) Before lied ley Byrne v. Heller & Partners," there was only
a duly to There was, in general, no duly to be careful in making
a statement. Pre was that a person who negligently made a false
statement is not liable 13 one relies on it to his detriment and
suffers damage thereby, except where contract or fiduciary
relationship or fraud. This was confirmed in this majority
decision in Candler v. Crane, Xmas & Co. Candler's case was
applied in the Ghanaian case of Appenteng v. B.W.A.
b) Candler's case, then settled the law namely that, in the
absence of contractual or fiduciary relationship, a plaintiff could
not complain of negligent words which caused him damage. The
courts were reluctant to recognize liability for negligent
statements because it was thought that to some extent different
considerations applied to words than acts.
But the reluctance to recognise a duty of care in the maker of a
statement on which .another relies and suffers a foreseeable loss
seemed to have been rooted in other considerations as well:
(a) the statement may be made without any intention that it be
relied upon;
(b) the loss might be considered as more remote because it-
usually prises from the fact that plaintiff relied on the statement
rather than from the statement itself; and
(c) finally the fear of-excessive liability; that is to say the courts
were afraid that the financial burden on the defendant might be
too much were he to be held liable for all the foreseeable loss
arising 'from a negligent statement'.'
(c) Then, in 1964 in Hedley Byrne v. Heller, it was held that a
duty of care in making non-negligent statements would be
imposed whenever a special relationship exists between the
parties and responsibility is not disclaimed as in Hedley. Suffice
it to reproduce here the opinion of Lord Reid since the other
Law Lords spoke in similar vein. Lord Reid:

"I cannot do better than adopt the following statement of the

case from the judgment of McNair, J.:

'This case raised certain interesting questions of law as td the

liability of bankers giving references as to the credit-worthiness
of their customers. The [appellants] are a firm of advertising
agents. The [respondents] are merchant bankers. In outline, the
[appellants'] case against the [respondents] is that, having placed
on behalf of a client, Easipower, Ltd. on credit terms substantial
orders for advertising time on television programmes and for
advertising space in certain newspapers on terms under which
they, the [appellants], became personally liable to the television
and newspaper companies, they caused inquiries to be made
through their own bank of the [respondents] as to the credit-
worthiness of Easipower, Ltd., who were customers of the
[respondents] and were given by the [respondents] satisfactory
references. These references turned out not to be justified, and
the [appellants] claim that in reliance on the references, which
they had no reason to question, they refrained from canceling the
orders so as to relieve themselves of their current liabilities."

The appellants, becoming doubtful about the financial position

of Easipower, Ltd., got their bank to communicate with the
respondents who were Easipower Ltd's bankers. This was done
by telephone and the following is a contemporaneous note of the
conversation which both parties agree is accurate:

'Heller & Partners, Ltd. Minute of telephone conversation.

Call from National Provincial Bank, Ltd., , Bishopsgate, E.C.2
18.88. Person called: L. Heller, re Easipower, Ltd. They wanted
to know in confidence, and without responsibility on our part,
the respectability and standing of Easipower, Ltd., and whether
they would be good for an advertising contract for £8,000 to
£9,000. I replied the company recently opened an account with
us. Believed to be respectably constituted and considered good
for its normal business engagements. The company is a
subsidiary of Pena Industries, Ltd., which is in liquidation, but
we understand that the managing director, Mr. Williams, is
endeavouring to buy the shares of Easipower, Ltd., from the
liquidator. We believe that the company would not undertake
any commitments they are unable to fulfil.'

Some months later the appellants sought a further reference and

on Nov. 7, 1958, the city office of National Provincial Bank,
Ltd. wrote to the respondents in the following terms:
"Dear Sir, We shall be obliged by your opinion in confidence as
to the respectability and standing of Easipower, Ltd., Albemarle
Street, London, W.l and by stating whether you consider them
trustworthy, in the way of business, to the extent of £100,000 per
annum, advertising contract. Yours faithfully ...
On Nov, 11, 1958, the respondents replied as follows:

"CONFIDENTIAL”

For your private use and without responsibility on the part of the
bank or its officials.

'Dear Sir, In reply to you inquiry of 7th instant. We beg to

advise: Re Easipower Ltd. Respectably constituted company,
considered good for its ordinary business engagements. Your
figures are larger than we are accustomed to see. Yours
faithfully ... Per pro. Heller & Partners, Ltd.

National Provincial Bank communicated these replies to their

customers, the appellants, and it is not suggested that this was
improper or not w; man ted by modern custom. The appellants
relied on these statements and as a result they lost over £17,000
when Easipower, Ltd., went into liquidation
The appellants now seek to recover this loss from the
respondents damages on the ground that these replies were given
negligently and ii breach the respondents' duty to exercise care
in giving them. In his judgment McNair, J. said:

"On the assumption stated above as to the existence of the duty,

I have no hesitation in holding
(1) that Mr. Heller was guilty of negligence in giving such a
reference without making plain - as he did not - hat it was
intended to be a very guarded reference, and
(2) that properly understood according to its ordinary and natural
meaning the reference was not justified by facts known to Mr.
Heller."

Before your Lordships the respondents were anxious to context

this finding, but your Lordships found it unnecessary to hear
argument on this matter being of opinion that the appeal must
fail even if Mr. Heller was negligent. Accordingly I cannot and
do not express any opinion on the question whether Mr. Heller
was in fact negligent. But I should make it plain that the
appellants' complaint is not that Mr. Heller gave his reply
without adequate knowledge of the position, nor that he intended
to create a false impression, but that what he said was in fact
calculated to create a false impression and that he ought to have
realised that. The same applies to the respondents' letter of Nov.
11.

McNAIR J. gave judgment for the respondents on the ground

that they owed no duty of care to the appellants. He said:

'I am accordingly driven to the conclusion by authority binding

upon me that no such action lies in the absence of contract or
fiduciary relationship. On the facts before me there is clearly no
contract, nor can I find fiduciary relationship. It was urged on
behalf of the [appellants facts that Easipower, Ltd. were heavily
indebted to the [respondents and that the [respondents] might
benefit from the advertising campaign financed by the
[appellants], were facts from which an exercise from which an
specialised duty to exercise care might be inferred. In my
judgment, however, though clearly relevant on the question of
honesty if this had been in issue, are not sufficient to establish
any special relationship involving a duty of care even if it was
open to extend the sphere of special relationship beyond that of
contract and fiduciary relationship.'
This judgment was affirmed by the Court of Appeal both
because they were bound by authority and because they were not
satisfied that it would be reasonable to impose on a banker the
obligation suggested.
Before coming to the main question of law, it may be well to
dispose of an argument that there was no sufficiently close
relationship between these parties to give rise to any duty. It is
said that the respondents did not know the precise purpose of the
inquiries and did not even know whether National Provincial
Bank, Ltd. wanted the information for its own use or for the use
of a customer: they knew nothing of the appellants. I would
reject that argument. They knew that the inquiry was in
connexion with an advertising contract, and that it was at least
probable that the information was wanted by the advertising
contractors. It seems to be quite immaterial that they did not
know who these contractors were: there is no suggestion of any
speciality which could have influenced them in deciding whether
to give information or in what form to give it. I shall therefore
treat this as if it were a case where a negligent misrepresentation
is made directly to the person seeking information, opinion or
advice, and I shall not attempt to decide what kind or degree of
proximity is necessary before there can be a duty owed by the
defendant to the plaintiff.
The appellants' first argument was based on Donoghue (or
McAlister) v. Stevenson. That is a very important decision, but I
do not think that it has any direct bearing on this case. That
decision may encourage us to develop existing lines of authority,
but it cannot entitle us to disregard them. Apart altogether from
authority I would think that the laws must treat negligent words
differently from negligent acts. The law ought so far as possible
to reflect the standards of the reasonable man, and that is what
Donoghue (or McAlister) v. Stevenson sets out to do. The most
obvious difference between negligent words and negligent acts
is this. Quite careful people often express definite opinions on
social or informal occasions, even when they see that others are
likely to be influenced by them; and they often do that without
taking that care which they would take if asked for their opinion
professionally, or in a business connexion. The appellants agree
that there can be no duty of care on such occasions, and we were
referred to American and South African authorities where that is
recognized, although their law appears to have gone much
further than ours has yet done. But it is at least unusual casually
to put into circulation negligently-made articles which are
dangerous. A man might give a friend a negligently-prepared
bottle of home-made wine and his friend's guests might drink it
with dire results; but it is by no means clear that those guests
would have no action against the negligent manufacturer.
Another obvious difference is that a negligently-made article
will only cause one accident, and so it is not very difficult to find
the necessary degree of proximity or neighbourhood between the
negligent manufacturer and the person injured. But words can be
broadcast with or without the consent or the foresight of the
speaker or writer. It would be one thing to say that the speaker
owes a duty to a limited class, but it would be going very far to
say that he owes a duty to every ultimate "consumer" who acts
on those words to his detriment. It would be no use to say that a
speaker or writer owes a duty, but can disclaim responsibility if
he wants to. He, like the manufacturer, could make it part of a
contract that he is not to be liable for his negligence: but that
contract would not protect him in a question with a third party at
least if the third party was unaware of it.
So it seemed to me that there is good sense behind our present
law that in general an innocent but negligent misrepresentation
gives no cause of action. There must be something more than the
mere misstatement. I therefore turn to the authorities to see what
more is required. The most natural requirement would be that
expressly or by implication from the circumstances the speaker
or writer has undertaken some responsibility, and that appears to
me not to conflict with any authority which is binding on this
House. Where there is a contract there is no difficulty as regards
the contracting parties: the question is whether there is a
warranty. The refusal of English law to recognize any jus
quaesitum tertio causes some difficulties, but they are not
relevant here. Then there are cases where a person does not
merely make a statement, but performs a gratuitous service. I do
not intend to examine the cases about that, but at least they show
that in some cases that person owes a duty of care apart from
any contract, and to that extent they pave the way to holding that
there can be a duty of care in making a statement of fact or
opinion which is independent of contract.
Much, of the difficulty in this field has been caused by Derry v.
Peek. The action was brought against the directors of a company
in respect of false statements in a prospectus. It was an action of
deceit based on fraud and nothing else. But it was held that the
directors had believed that their statements were true although
they had no reasonable grounds for their belief. The Court of
Appeal held that this amounted to fraud in law, but naturally
enough this House held that there can be no fraud without
dishonesty and that credulity is not dishonesty. The question was
never really considered whether the facts had imposed on the
directors a duty to exercise care. It must be implied that on the
facts of that case there was no such duty. But that was
immediately remedied by the Directors Liability Act, 1890,
which provided that a director is liable for untrue statements in a
prospectus unless he proves that he had reasonable ground to
believe and did believe that they were true.
It must now be taken that Derry v. Peek did not establish any
universal rule that in the absence of contract, an innocent but
negligent misrepresentation cannot give rise to an action. It is
true that Lord Bramwell said: "To found an action for damages
there must be a contract and breach, or fraud"; and f or the next
twenty years it was generally assumed that Deny v. Peek
decided that. But it was shown in this House in Norton v. Lord
Ashburton that that is much loo widely stated. We cannot
therefore now accept as accurate the numerous statements to that
effect in cases between 1889 and 1914, and we must now
determine the extent of the exceptions to that rule.
In Norton v. Lord Ashburton a solicitor was sued for fraud.
Fraud was not proved, but he was held liable for negligence.
Viscount Haldane L.C. dealt with Derry v. Peek and pointed out
that while the relationship of the parties in that case was not
enough, the case did not decide

'that where a different sort of relationship ought to be inferred

circumstances, the case is to be concluded by asking whether an
from the action for deceit will lie ... There are other obligations
besides that of the honesty the breach of which may give a right
to damages. These obligations depend on principles which the
judges have worked out in the fashion that is characteristic of a
system where much of the law has always been judge-made and
unwritten.

It hardly needed Donoghue v. Stevenson to show that that

process can still operate. Lord Haldane quoted a passage from
the speech of Lord Herschell in Derry v. Peek where he
excluded from the principle of that case.

'those cases where a person within whose special province it lay

to know a particular fact has given an erroneous answer to an
inquiry made with a regard to it by a person desirous of
ascertaining the fact for the purpose of determining this course

Then he explained the expression "constructive fraud" and said:

'What it really means in this connexion is not moral fraud in the
ordinary sense, but breach of the sort of obligation which is
enforced by a court ordinary which from the beginning regarded
itself as a court of conscience.

He went on to refer to "breach of special duty" and said:

'If such a duty can be inferred in a particular case of a person

prospectus, as, for instance, in the case of directors issuing to the
shareholders of the company which they direct a prospectus
inviting the subscription by them of further capital, I do not find
in Derry v. Peek an authourity for the suggestion that an action
for damages for misrepresentation without an actual intention to
deceive may not lie.'

I find no dissent from these views by the other noble and

learned Lords. Lord Shaw of Dunfermline also quoted the
passage which I have quoted from the speech of Lord Herschell,
and, dealing with equitable relief he approved a passage in an
argument of Sir Roundell Palmer which concluded:

'in order that a person may avail himself of relief founded on it

he must show that there was such approximate relationship
between himself and the person making the representation as to
bring them virtually into the position of parties contracting with
each other.'
an interesting anticipation in 1873 of the test of who is my
neighbour
Lord Haldane gave a further statement of his view in Robinson
v. National Bank of Scotland a case to which I shall return.
Having said that in that case there was no duty excepting the
duty of common honesty, he went on to say

'In saying that 1 wish emphatically to repeat what I said in

advising this House in the case of Nocton v. Lord Ashburton,
that it is great mistake to suppose that, because the principle in
Derry v. Peek clearly covers all cases of the class to which I
have referred, therefore the freedom of action of the courts in
recognizing special duties arising out of other kinds of
relationship which they find established by the evidence is in
any way affected. I think, as I said in Nocton's case, that an
exaggerated view was taken by a good many people of the scope
of the decision in Derry v. Peek. The whole of the doctrine as to
fiduciary relationship, as to the duty of care arising from implied
as well as express contracts, as to the duty of care arising from
other special relationships which the courts may find to exist in
particular cases, still remains, and I should be very sorry if any
word fell from me which should suggest that the courts are in
any way hampered in recognizing that the duty of care may be
established when such cases really occur.'

This passage makes it clear that Lord Haldane did not think that
a duty to take care must be limited to cases of fiduciary
relationships in the narrow sense of relationships which had
been recognised by the Court of Chancery as being of a
fiduciary character. He speaks of other special relationships, and
I can see no logical stopping place short of all those
relationships where it is plain that the party seeking information
or advice was trusting the other to exercise such a degree of care
as the circumstances required, where it was reasonable for him
to do that, and where the other have the information or advice
when he knew or ought to have known that the inquirer was
relying on him. I say "ought to have known" because in
questions of negligence we now apply the objective of what the
reasonable man would have done.

"A reasonable man, knowing that he was being trusted or that

his skill and judgment were being relied on, would, I think, have
three courses him. He could keep silent or decline to give the
information or advice sought: or he could give an answer with
a clear qualification that he accepted responsibility for it or that
it was given without that reflection or inquiry which a careful
answer would require: or he could simply answer without any
such qualification. If he chooses to adopt the last course he
must, 1 think, be held to have accepted some responsibility for
his answer being given carefully, or accepted a relationship with
the inquirer which requires him to exercise such care as the
circumstances require."
If that is right then it must follow that Candler v. Crane
Christmas & Co. was wrongly decided. There the plaintiff
wanted to see the accounts of a company before deciding to
invest in it. The defendants were the company's accountants and
they were told by the company to complete the company's
accounts as soon as possible because they were to be shown to
the plaintiff who was a potential investor in the company. At the
company's request the defendants showed the completed
accounts to the plaintiff, discussed them with him, and allowed
him to take a copy. The accounts had been carelessly prepared
and gave a wholly misleading picture. It was obvious to the
defendants that the plaintiff was relying on their skill and
judgment and on their having exercised that care which by
contract they owed to the company, and I think that any
reasonable man in the plaintiffs shoes would have relied on that.
This seems to me to be a typical case of agreeing to assume a
responsibility: they knew why the plaintiff wanted to see the
accounts and why their employers, the company, wanted them to
be shown to him, and agreed to show them to him without even
a suggestion that he should not rely on them.
The majority of the Court of Appeal held that they were bound
by Le Lievre v. Gould and that Donoghue v. Stevenson had no
application. In so doing I think that they were right. The Court of
Appeal have bound themselves to follow all rationes decidendi
of previous Court of Appeal decisions, and, in the face of that
rule, it would have been very difficult to say that the ratio in Le
Lievre v. Gould did not cover Candler's case. Lord Denning,
who dissented, distinguished Le Lievre v. Gould on its facts, but,
as I understand the rule which the Court of Appeal have adopted,
that is not sufficient if the ratio applies; and this is not an
appropriate occasion to consider whether the Court of Appeal's
rule is a good one. So the question which we now have to
consider is whether the ratio in Le Lievre v. Gould can be
supported, But before leaving Candler's case I must note that
Cohen, L.J. (as he then was), attached considerable importance
to a New York decision Ultramares Corporation v. Touche, a
decision of Cardozo, C.J. But I think that another decision of
that great judge, Glanzer v. Shepard, is more in point because in
the latter case there was a direct relationship between the
weigher who had a certificate and the purchaser of the goods
weighed, who the weigher knew was relying on his certificate:
there the weigher was held to owe a duty to the purchaser with
whom he had no contract. The Ultramares case can be regarded
as nearer to Le Lievre v. Gould.
In Le Lievre v. Gould a surveyor, Gould, gave certificates to a
builder, who employed him. The plaintiffs were mortgagees of
the builders' interest and Gould knew nothing about them or the
terms of their mortgage; but the builder, without Gould's
authority, chose to show them Gould's report. I have said that I
do not intend to decide anything about the degree of proximity
necessary to establish a relationship giving rise to a duty of care,
but it would seem difficult to find such proximity in this case
and the actual decision in Le Lievre v. Gould may therefore be
correct. The decision, however, was not put on that ground: if it
had been Cann v. Willson would not have been overruled. Lord
Esher, M.R., held that there was no contract between the
plaintiffs and the defendant and that this House in Deny v. Peek
had "restated the old law that, in the absence of contract, an
action for negligence cannot be maintained when there is no
fraud." Bowen, L.J. — gave a similar reason: he said:

'Then Derry v. Peek decided this further point — viz. that in

cases like the present (of which Deny v. Peek was itself an
instance) there is no duty enforceable in law to be careful."
He added that the law of England

'does not consider that what a man writes on paper is like a gun
or other dangerous instrument; and, unless he intended to
deceive, the law does not, in the absence of contract, hold him
responsible for drawing his certificate carelessly.'

So both he and Lord Esher held that Cann v. Willson was wrong
in deciding that there was a duty to take care. We now know on
the authority of Donoghue v. Stephenson that Bo wen, L.J. was
wrong in limiting duty of care to guns or other dangerous
instruments, and T think that, for reasons which I have already
given, he was also wrong in limiting the duty of care with regard
to statement to cases where there is a contract. On both points
Bowen, L.J, was expressing what was then generally believed to
be the law, but later statements in this House lave gone far to
remove those limitations. I would therefore hold that the ratio in
Le Lievre v. Gould was wrong and that Cann v. Willson ought
not to have been overruled.
Now I must try to apply these principles to the present case.
What the appellants complain of is not negligence in the
ordinary sense of carelessness, but rather misjudgment in that
Mr. Heller, while honestly seeking to give a fair assessment, in
fact made a statement which gave a false and misleading
impression of his customer's credit. It appears that bankers now
commonly give references with regard to their customers as part
of their business. I do not know how far their customers
generally permit them to disclose their affairs, but even with
permission it cannot always be easy for a banker to reconcile his
duty to his customer with his desire to give a fairly balanced
reply to an inquiry; and inquirers can hardly expect a full and
objective statement of opinion or accurate factual information
such as skilled men would be expected to give in reply to other
kinds of inquiry. So it seems to me to be unusually difficult to
determine just what duty, beyond a duty to be honest, a banker
would be held to have undertaken if he gave a reply without an
adequate disclaimer of responsibility or other warning. It is in
light of such considerations that I approach an examination of
the case of Robinson v. National Bank of Scotland.
It is not easy to extract the facts from the report of the case in the
Court of Session. Several of the witnesses were held to be
unreliable and the principal issue in the case, fraud, is not
relevant for present purposes. But the position appears to have
been this. Harley and two brothers Inglis wished to raise money.
They approached an insurance company on the false basis that
Harley was to be the borrower and the Inglis brothers were to be
guarantors. To satisfy the company as to the financial standing
of the Inglis brothers Harley got his London bank to write to
McArthur, a branch agent of the National Bank of Scotland, and
McArthur on July 28, 1910, sent a reply which was ultimately
held to be culpably careless but not fraudulent. Robinson, the
pursuer in the action, said that he had been approached by
Harley to become a guarantor before the inquiry was made by
Harley but he was disbelieved by the Lord Ordinary who held
that he was pot brought into the matter before September. This
was accepted by the majority in the Inner House and there is no
indication that any of their Lordships in this House questioned
the finding that the letter of July 28, 1910, was not obtained on
behalf of Robinson. Harley and the brothers Inglis did not
proceed with their scheme in July, but they resumed negotiations
in September. The company wanted an additional guarantor and
Harley approached Robinson. A further reference was asked
and obtained from McArthur on Oct. 1 about the brothers Inglis,
but no point was made of this. The whole case turned on
McArthur's letter of July 28, 1910. After further negotiation the
company made a loan to Harley with the brothers Inglis and
Robinson as guarantors. Harley and the brothers Inglis all
became bankrupt and Robinson had to pay the company under
his guarantee. Robinson sued the National Bank of Scotland and
McArthur. He alleged that McArthur's letter was fraudulent and
that he had been induced by it to guarantee the loan. He also
alleged that McArthur had a duty to disclose certain facts about
the brothers Inglis which were known to him, but this alternative
case played a very minor part in the litigation. Long opinions
were given in the Court of Session on the question of fraud, but
the alternative case of a duty to disclose was dealt with
summarily. The Lord Justice Clerk (Lord Scott Dickson) said:
'It appears to me that there was no such duty of disclosure
imposed upon Mr. McArthur towards the pursuer as would
justify us in applying die principle on which Norton's case was
decided. ...

As Lord Dundedin referred to cases of liability of a solicitor to

his client for erroneous advice and of similar liability arising
from a fiduciary relationship and said "such decisions seem to
me to have no bearing on or application to the facts of the
present case." He also drew attention to the last sentence of the
letter of July 28, 1910, which he said would become important if
fraud were out of the case. That sentence is: "The above
information is to be considered strictly confidential and is given
on the express understanding that we incur no responsibility
whatsoever in furnishing it." Lord Salvessen, who dissented, did
not deal with the point and Lord Guthrie merely said that here
there was no fiduciary relationship. In this House an unusual
course was taken during the argument. I quote from the Session
Cases report:

'... after counsel for the respondents had been heard for a short
time Earl Loreburn informed him that their lordships, as at
present advised, thought that there was no special duty on
McArthur towards the pursuer; that the respondents were not
liable unless McArthur's representations were dishonest; and that
their lordships had not been satisfied as yet that the
representations were dishonest ... that under the circumstances
the House was prepared to dismiss the appeal; but that they
considered that the pursuer had been badly treated, though he
had not any cause of action at law, and that, therefore, their
lordships were disposed to direct that there should be no costs of
the action on either side. EARL LOREBURN said that counsel
might prefer to argue the case further and endeavour to alter
these views, but of course he would run the risk of altering their
lordships' views as to the legal responsibility as well as upon the
subject of costs.'

Counsel then — wisely no doubt — said no more, and judgment

was given for the bank but with no costs here or below.
That case is very nearly indistinguishable from the present
Loreburn regarded the fact that McArthur knew that his letter
might be used to influence others besides the immediate inquirer
as entitling Robinson to found on it if fraud had been proved.
But it is not clear to me that he intended to decide that there
would have been sufficient proximity between Robinson and to
enable him to maintain that there was a special relationship
involving a duty of care if the other facts had been sufficient to
create such a relationship. I would not regard this as a binding
decision on that question. With regard to the bank's Lord
Haldane said:
'There is only one other point on which I wish to say anything,
and that is the question which was argued by the appellant, as to
there being a special duty of care under the circumstances here. I
think the case of Derry v. Peek in this House has finally settled
in Scotland, as well as in England
and Ireland, the conclusion that in a case like this no duty to be
careful is established. There is the general duty of common
honesty, and that duty of course applies in the circumstances of
this case as it applies to all other circumstances. But when a
mere inquiry is made by one ranker of another, who stands in no
special relationship to him, then, in the absence
of special circumstances from which a contract to be careful can
be inferred, I think there is no duty excepting the duty of
common honesty to which I have referred.'

I think that by 'a contract to be careful' Lord Haldane must have

meant an agreement or undertaking to be careful. This was a
Scots case and by Scot's law there can be a contract without
consideration: Lord Haldane cannot have meant
that similar cases in Scotland and England would be decided
differently on the matter of special relationship for that reason. I
am, I think, entitled to note that this was an extempore judgment.
So Lord Haldane was contrasting a "mere inquiry" with a case
where there are special circumstances from which an
undertaking to be careful can be inferred. In Robinson's case any
such undertaking was excluded by the sentence in McArthur's
letter which I have
quoted and in which he said that the information was given 'on
the express understanding that we incur no responsibility
whatever in furnishing it.'
It appears to me that the only possible distinction in the present
case is that here there was no adequate disclaimer of
responsibility. Here, however, the appellant's bank, who were
their agents in making the enquiry, began by saying that 'they
wanted to know in confidence and without responsibility on our
part', i.e. on the part of the respondent. So I cannot see how the
appellants can now be entitled to disregard that and maintain that
the respondents did incur a responsibility to them.
The appellants founded on a number of cases in contract where
very clear words were required to exclude the duty of care which
would otherwise have flowed from the contract. To that
argument there are, I think, two answers. Inline case of a
contract it is necessary to exclude liability for negligence, bit in
mis case the question is whether an undertaking to assume a
duty to take care can be inferred; and that is a very different
matter. Secondly, even in cases of contract general words may
be sufficient if there was no other kind of liability to be excluded
except liability for negligence; the general rule is that a party is
not exempted from liability for negligence "unless adequate
words are used" – per Scrutton LJ. in Rutter v.Palmer. It being
admitted that there was here a duty to
give an honest reply, I do not see what further liability there
could be to exclude except liability for negligence: there being
no contract mere was no question of warranty.

I am therefore of opinion that it is clear that the respondents

never
undertook any duly to exercise care in giving their replies. The
appellants cannot succeed unless there was such a duty and
therefore in my judgment this appeal must be dismissed.

As Lord Reid put the point in Hedley Bryne v. Heller &

Partners:

"A reasonable man, knowing that he was being trusted or that

his skill and judgment were being relied on, would, I think, have
three courses open to him a) he could keep silent or decline to
give the information or advice sought- or (b) he could give an
answer with clear qualification that he accepted no
responsibility for it or that it was given without that reflection or
inquiry which a careful answer would require; or
(c) he could simply answer without any such qualification
If he chooses to adopt the last course, he must, I think be held
to" have accepted a relationship with the inquirer which require
him to exercise such care as the circumstances require.

For the circumstances in which this relationship will arise we

refer to Lord Neil in MacNaughten Ltd . v. Hicks, namely:
a) the purpose for which the statement was made;
b) the purpose for which the statement was communicated
c) the relationship between (i) the adviser (ii) the advisee; or
(iii) any third party
d) the size of any class to which the advisee belongs;
e) the state of knowledge of the adviser and
f) the reliance by the advisee
The misstatement may be a misstatement a) of law ; b) opinion ;
c) fact; and d) intention
The misstatement may be by
a) voluntary undertaking;
b) in the course of business; or
c) a person under duty to speak.
Liability will not be imposed merely because it is foreseeable
that the plaintiff would rely on statement. There must be close
proximity between the maker and the recipient of the advice and
as a matter of public policy it must be fair, just and reasonable to
impose the duty ;Caparo and McNaughton Ltd v. Hicks
Anderson cases.

(i) The relationship of proximity arises only if there is

knowledge of the purpose for which the information is required
and knowledge that it is likely to be relied on for that purpose.
(ii) Necessary condition for proximity between adviser and the
advisee:
1. the advice is required for a purpose made known, actually or
inferentially, to the adviser at the time of the advice;
2. the adviser knows his or her statement will be
communicated, inferentially, that his advice will be
communicated to the advisee in order that the advisee may use it
for that purpose;
3. it is known, actually or inferentially that the advisee will act
on the advice for that purpose without further inquiry; and

4. it is acted upon by the advisee for the purpose to his or her

detriment.
(iii)The duty will also arise if the adviser gains financially from
reliance by the advisee on the advice. Anderson v. Rhodes &
Ors. In that case the plaintiffs and the first defendants operated
as wholesalers in the vegetable and fruit market. The first
defendants, a company of good standing sometimes acted as
commission agents for other buyers. The practice in this
business was that payment came later after delivery. The second
defendant was employed as salesman and buyer for the first
defendants. The third defendant was the first defendant's
manager. As a result of the fact that the accounts of the first
defendants were net regularly brought up to date, they did not
realize that a principal for whom lie second defendants placed
certain orders was in arrears. The second defendant, when he
placed some orders on behalf of the principal (Taylors Ltd) with
the plaintiffs, represented to the plaintiffs that T Ltd. (i.e. the
principal) was creditworthy. They took delivery of the potatoes
sold to them thereby but were unable to pay for them having
become insolvent. The plaintiffs brought the action for damages
against the defendants on the ground of negligence in
representing to them hat T Ltd were credit-worthy, and without
which representation they would not have entered into the
transactions. Held by Cains J that they were liable:

"the representation here concerned a business

transaction whose nature made clear the gravity of
the enquiry and the importance and influence
attached to the answers."
There was in the circumstances a duty to exercise care in the
representation which was not done. If first defendants had kept
their accounts reasonably carefully they would have realised that
they had evidence which made the credit-worthiness of T Ltd
doubtful. From the foregoing cases, it is evident that liability may
be affected (a) disclaimer; (b) the fact that the statement was off-
the-cuff; and (c) the social nature of the occasion. The plaintiff
must prove reliance on the statement and such reliance must cause
him loss. The reliance here is a causal concept i.e. plaintiff must
show that but for his reliance on the statement, he would not have
suffered loss. The plaintiff must prove lack of due care, not just
error of judgment!!! Silence on defendant's part cannot found an
action in negligent misstatement on Hedley Byrne v. Heller
principles.
In Assurance Co. v. Evatt — it was held by the Judicial Committee
of the Privy Council, by majority decision, that the duty arises only
if his adviser is in the business of giving advice. Speaking for their
Lordships, Lord Diplock confirmed this:

"But, in their Lordships' view, references to 'such care as the

circumstances require' presupposed an ascertainable standard of
skill with which the advisor was acquainted or had represented that
he was. Unless he carried on the business or profession of giving
advice he could not be reasonably expected to know whether any or
what degree of skill was called for, and he could not be reasonably
held to have accepted the responsibility of conforming to a standard
of skill of which he was unaware simply because he answered the
inquiry with knowledge that the advisee intended to rely on his
answer. The reference should be understood as restricted TO
ADVISORS WHO CARRIED ON THE BUSINESS OR
PROFESSION OF GIVING ADVICE of the kind sought by them
in the course of that business."

However, the authority of this case as an accurate interpretation of

Medley Byrne is seriously weakened by the fact that three of the
live law lords who decided the Medley Byrne case were here, but
were divided: one with the majority; two dissented.
The courts have held that policy considerations weigh heavily in
determining success with this tort. So, for example, an advice given
on a social occasion may not found an action under this tort.

Special situation for Lawyers?

The English courts have held that no such cause of action is

available for the conduct of barristers in court but for that of a
solicitor. Otherwise, a litigant will sue a barrister for negligence
and start the case all over again; besides, barrister is an officer of
the court with certain responsibilities: See Rondel v. Worsley.
Among the reasons for the immunity of barristers from negligent
suits on policy grounds three may be noted:
a) A barrister owes a duty both to the court and his client: the
public interest requires him to be protected from the anxiety of a
threatened law-suit.
b) The public interest requires that the decision of one court
should not be questioned by another except through the appeal
process.
c) Immunity from suit granted by the Constitution applies to all
participants in the judicial process, including the banister.
In Ghana, our position is different. In Ghana, the law allows such
an action against legal practitioner. The rationale was provided by
Justice Apaloo in Fordwuoh v. Law Chambers. Apaloo said:

"We think that in a fast developing country like our own, where the
numerical strength of the legal profession is on the increase, it is in
the public interest professional standards should be closely watched
and that lapses in lawyers must be seriously viewed and where, as
here, such lapses result in grave losses to lay clients, they must be
seriously adequately compensated."
Finally, it is respectfully submitted that to the extent to which the
decision in Appenteng v. B.W.A. was based on Candler's case, that
decision is no more good law. Our courts would therefore have no
choice but to apply Hedley Byrne.
Chapter 26

DEATH IN RELATION TO TORTS

The topic is covered by the Civil Liability Act, 1963 (Act 176) in
Parts III and IV.
Death has the effect of doing one of two things in the law of torts:
a) It may create liability: see s. 16 of Act 176.
b) It may extinguish liability: see section 24 of Act 176.

But in order to understand the provisions of Act 176 fully, we need

to address the law on the subject before the enactment of Act 176.

A. Death creating liability

(i) At common law

At common law, causes of action in torts were generally destroyed
by the death of one party. That is (a) actions against the deceased
are extinguished; and (b) actions the deceased has against others are
extinguished. The death, however caused, did not confer a cause of
action on anyone against the tortfeasor. For, the effect of the
operation of the maxim actio personalis moritur cum persona was
that it was better to kill than to injure. This rule is reflected in
decisions such as Baker v. Bolton.
This was an action against the defendants, as proprietors of a stage-
coach, on which the plaintiff and his late wife were travelling from
Portsmouth to London, when it was overturned. The plaintiff was
himself severely bruised and his wife was so badly injured that she
died about a month later in hospital. He appeared to have been very
much attached to the wife, who helped him considerably in his
business as a publican. He sued for negligence and claimed among
others that –

"by means of the premises, the plaintiff had wholly lost and been
deprived of the comfort, fellowship and assistance of his said wife,
and had from thence hitherto suffered and undergone great grief,
vexation, and anguish of mind."

Lord Ellenborough, in directing the jury, said the jury could only
take into account the bruises sustained by the plaintiff himself, the
loss of his wife's company and the distress of mind he had suffered
because of her from the time of the accident to her death, adding
that:

"In a civil court, the death of a human being could not be

complained of as an injury, and in this case the damages as to the
plaintiff's wife must stop with the period of her existence."

(ii) Reforms under 1846

The Fatal Accidents Acts of 1846 (also known as Lord Campbell's
Acts) were passed in the UK to soften the rigours of the operation of
the common law rule. The Acts did not abolish the common law rule,
but merely created exceptions to it to cater for situations where death
was caused by the wrongful act or omission of another. Under the Acts
if the person killed would have had a cause of action had he lived, then
the wrongdoer will be liable. Every such action was only for the
benefit of the wife, husband, parents, or child of the deceased person,
i.e. the dependants. All such actions had to be within twelve months of
the deceased's death.
The English statutes applied in Ghana as ''statutes of general
application' until the passage of the Civil Liability Act, 1963 (Act
176).

Nature of the relief introduced by the reforms

There must, under the exceptions introduced by the 1846 Acts, be a
wrong done to the deceased. It follows that if the act causing the death
was not tortious, the defendant will not be liable, i.e. the dependants'
action was derivative.
It also follows that, if the defendant would have had a good defence to
an action by the deceased in his lifetime, there was no liability. If the
deceased in his lifetime had agreed not to sue the defendant, no action
will lie against him at the instance of his dependants. If the deceased
had settled his claim, no action will lie. If the action was
statute -barred before the deceased's death, no action will lie. Any
defence that would have been available against the deceased had he
lived and sued can be raised against the action by his dependants.
The last but one point is illustrated by the case of Read v. Great
Eastern Rly. Co. This was an action brought by the plaintiff, (widow
of D. Read) as executrix of the deceased, to recover damages for
injuries sustained by the latter through the negligence of the
defendants as a result of which he died. The defendants argued that
the: action could not be maintained because they had, while the
deceased was alive, paid lo him,, and he accepted, a sum of money in
full satisfaction and discharge of all claims and causes of action which
he had against them.
It was held by the court (per Blackburn, Lush JJ) that this was a good
demurrer to the action, because the Act (Lord Campbell's Act) which
enabled a person to sue, where if a person received an injury which
ultimately led to his death, the operation of the
maxim or axiom action personalis moritur cum persona would have
resulted in denial of action in respect of his death, did not create a
fresh cause of action in respect of the executor or administrator. It
gave the executor a right of action where the deceased has not
received, in his lifetime, anything which would be a bar to his
maintaining an action.
Thus, where the deceased, while alive, has already brought an action
or accepted compensation, the executor cannot bring a fresh one.
What if the tortfeasor limited his liability to a fixed sum of money?
For this let us examine Nunan v. Southern Rly. Co.3 John Nunan was
a passenger on a train belonging to the defendants, which travelled
from Charing Cross to Milton Range Halt. When they arrived at
Milton Range Halt, he and other passengers were going across the
railway lines in order to leave when, owing to the negligence of the
defendants' servants, they were run into by another train and Nunan
and others were killed. At the time of his death, he was being carried
under a contract which limited the liability of the defendants to £100.
The widow brought this action under the Fatal Accidents Act of 1846.
The defendants contended that, since the deceased had so contracted
with them, no damages in excess of that amount could be awarded
under the Fatal Accidents Act to his widow. Swift J held that the
widow's claim was not limited by the alleged contractual terms and
gave her judgment for £800. The defendants appealed. It was held (per
Bankes, Scrutton, Atkin LL.JJ) that the important thing under the Fatal
Acts was whether he could have sued them had he lived. If he could
have then, although by the contract his claim would have been limited
to £100, this will not affect his dependants' action. Not only can they
sue, there is no limitation on their damages because (quoting Lord
Blackburn in the Vera Cruz) their cause of action is "new in its
specie.:, new in its quality, new in its principle, in every way new."
The defendants' action is for the loss of their breadwinner. Therefore,
the alleged limitation must be measured by the pecuniary loss to the
dependants.fdef

Nature of the interest created by the reforms

The 1846 Acts gave no indication as to the type of interest protected.

But the courts have held that the Acts protect purely pecuniary
interest. The purpose of the award is to provide the dependants with a
capital sum which, with prudent management, will be sufficient to
provide them material benefits of the same standard and duration as
would have been provided them by the deceased had he or she lived.
The point was made in Blake v. Midland Rly. Co.5 This was an action
by the widow of Blake who was killed in a railway collision which
occurred as a result of the negligence of the defendants. The deceased
was a merchant. The trial judge (Parke B), in his direction to the jury,
used language which did not clearly indicate that the plaintiff could
not recover for mental suffering after the death (they could recover
only for pecuniary loss caused by the death).
The defendants brought a motion for a new trial because they argued
that, as damages for pecuniary loss, the £6000 awarded was excessive
and therefore, the jury must have wrongly taken into account the
mental suffering of the plaintiffs. It was held (per Coleridge J and
Crompton) that a new trial must be ordered. Coleridge J was of the
view that, under Lord Campbell's Acts, the measure of damages was
not the loss or suffering of the deceased, but the injury resulting from
his death to his family. He said:6
"that it was (as the title says) an Act for Compensating the Families of
Persons Killed, not for solacing their wounded feelings... That if they
could recover for mental suffering, there might be difficulty in
computing the degree of mental anguish of each member of the
family... Then not only the child without filial piety, but a lunatic child
and a child of very tender years, and a posthumous child, on the death
of the father, may have something for pecuniary loss, but cannot
come in pari passu with the other children and must from the
be cut off solacium."
So the jury could not take into account the mental suffering of the
plaintiff.
Under the 1846 Acts, funeral expenses were held not recoverable:
see McCardie J. in Barnett v. Cohen. But, in the case of Baaye v.
Prempeh, Apaloo J (as he then was) allowed a claim for funeral
expenses. This was a judgment before Act 176, and been a slip.
Now, by virtue of section 18(5) of Act 176, damages may be
recover respect of funeral expenses.

Damages recoverable

We have seen that the dependants may bring action for pecuniary
loss. Under the law, it seems that they can also recover prospective
loss, where this is reasonably probable. In the case of prospective
loss, it was decided in Agbedor v. Yeboa, that the factors to be
taken into account are the prevailing social conditions generally
e.g. (a) family structure; and (b) formal relationship between sons
and fathers, daughters and mothers. Two cases explain the law on
prospective loss and the attitude of the courts on the point. The
first is Taff Vale Rly Co. v. Jenkin.
This was an action brought by the respondent on behalf of himself
an<|l his wife under the Fatal Accidents Act, 1846 against the
appellants for the loss of their daughter, aged 16, who was killed in
a railway accident for which appellants were responsible. At the
time of her death, the respondent's daughter was an apprentice
dressmaker with two more months to complete her apprenticeship.
She was an exceptionally clever girl and there was a good chance
of her making substantial earnings on the completion of her
apprenticeship. The respondent was a fireman in a colliery
company, who suffered from varicose veins and was not in robust
health. The wife kept a small greengrocer's shop
The defendants argued that the action could succeed only if it
could be shown that the deceased had actually been contributing to
the support of the respondents A i.e. evidence that the respondents
were depending on the deceased. They argued that die case should
be withdrawn from the jury because, on the facts, there was no
evidence of damage. The trial judge refused. The defendants
appealed to the Court of Appeal which dismissed the appeal
because the judges could not agree on anything. On further appeal
to the House of Lords, it was held that the appeal must fail. In the
view of the House of Lords, it is not a condition precedent to the
maintenance of an action under the Fatal Accidents Acts of 1846,
that the deceased should have been actually earning money or
money's worth or contributing to the support of the plaintiff at or
before the date of the death, provided that the plaintiff had a
reasonable expectation of pecuniary benefit from the continuance
of life. Thus where, as in the present action, it was proved that, at!
the date of her death, the deceased who lived with her parents was
nearing the completion of her apprenticeship as a dressmaker and
was likely in the near future to earn remuneration which might
quickly have become substantial, then there was evidence of
damage which the jury could reasonably rely on. Per Viscount
Haldane:

"The action is brought under Lord Campbell's Acts by the father

on behalf of himself and another for damages for the loss of the
daughter. Now we have heard a good deal of authority cited as to
what the foundation of such an action is, but I do not think there is
much difficulty in coming to a conclusion as to the principle which
underlies those authorities. The basis is not what has been called
solatium, that is to say, damages given for injured feelings or on
the ground of sentiment, but damages based on compensation for
pecuniary loss. But then loss may be prospective, and it is quite
clear that prospective loss may be taken into account. It has been
said that this is qualified by the proposition that the child must be
shown to have been earning something before any damages can be
assessed. I know of no foundation in principle for that proposition
either in the statute or in any doctrine of law which is applicable;
nor do I think it is really established by the authorities when you
examine them."

Per Lord Atkinson:

"I think it has been well established by authority that all that is
necessary is that a reasonable expectation of pecuniary benefit
should be entertained by the person who sues. It is quite true that
the existence of this expectation is an inference of fact - there must
be a basis of fact from which the inference can reasonably be
drawn; but I wish to express my emphatic dissent from the
proposition that it is necessary that two of the facts without which
the inference cannot be drawn are, first, the deceased earned
money in the past, and second, that he or she contributed to the
support of the plaintiff. These are, no doubt, pregnant pieces of
evidence, but they are only pieces of evidence; and the necessary
inference can, I think, be drawn from circumstances other than and
different from diem."

And per Lord Moulton:

"The fact of past contribution may be important in strengthening

the probability of future pecuniary advantage, but it cannot be a
condition precedent to the existence of such probability."

Compare this case with Barnett v. Cohen (per McCardie J). This
was an action by the plaintiff, a wholesale trading engineer, to
recover damages for the death of his son, a boy of about four
years, from injuries caused by the negligence of the defendants and
their servants. The deceased child was a bright and healthy boy.
He had gone to school when only two years old. The plaintiff is
40, his health is not good and he suffers from a dilated heart.
The plaintiff claimed as damages, in addition to the loss of the
reasonable expectation of pecuniary benefit from the deceased boy
if he had lived, the expenses connected with the burial of his son,
also the expenses which he incurred, as a Jew in employing a
watcher over the body of his dead child, and also his loss through
having abstain from business for a space of time after the death.
The defendants denied that the plaintiff had sustained any
pecuniary loss by reason of the death of his son and said the action
was not maintainable. They paid £10 into court with a denial of
liability. Two issues had to be resolved by the court:
a) Was the coroner's evidence admissible at the trial?
b) Has the plaintiff proved the requisite pecuniary loss to
establish a cause It was held on (b) that, in an action under Lord
Campbell's Acts, it is not sufficient for the plaintiff to prove that he
has lost, by the death of the deceased, a mere speculative
possibility of pecuniary benefit; in order to succeed. It is necessary
for him to show he has lost a reasonable probability of pecuniary
advantage. McCardie J said:

"I think that the only way to distinguish between the cases where
the plaintiff has failed from the cases where he has succeeded is to
say that, in the former, there is a mere speculative possibility of
benefit, whereas in the latter, there is a reasonable probability of
pecuniary advantage. The latter is assessable. The former is non-
assessable
In the present action, the plaintiff has not satisfied me that he had a
reasonable expectation of pecuniary benefit. His child was under 4
years. The boy was subject to all the risks of illness, disease,
accident and death. His education and upkeep would have been a
substantial burden to the plaintiff for many years if he had lived.
He might or might not have turned out a useful young man. He
would have earned nothing till 16 years. He might never have aided
his father at all.. I cannot adequately speculate one way or the
other. In any event, he could scarcely have been expected to
contribute to the father's income, for the plaintiff even row
possesses £1000 a year by his business and may increase it further,
nor could the son have been expected to aid in domestic service.
The whole matter is beset with doubts, contingencies, and
uncertainties
He also said funeral expenses were not recoverable; neither
could the plaintiff recover for what he had spent to satisfy
Jewish religious custom.
The size of the father's own income was one of the reasons
apparently why his action failed in this case. If we conclude
that the contribution of money's worth e.g, service, may satisfy
dependency, then we would be entitled to question this aspect of
ruling.
Damages may be obtained on behalf of the dependants or the
estate of the deceased. How are the damages assessed? How is the
quantum assessed? Should we take illegal income into account?
Probably, on public policy grounds, No! It must be remembered
that the idea here is to find a capital sum which a dependant can
with prudent management maintain himself or herself to the same
standard and duration as with the dependency.
The first course is to assess each dependency separately and then
total them and award as damages against the defendant. Of course,
this is only possible where there are records. The second method
(the more popular course), is to assess the dependency in a lump
sum and to apportion it to the dependants. This was the method
enunciated by Lord Wright in Davies v. Powell Duffryn
Associated. This was an action by the widows of two employees of
the respondents (Daniels Davies, John Sidney) fatally injured by
an explosion in one of the mines of the respondents. They
attributed the accident to the breach of statutory duty and
negligence on the part of respondents. Each claimed damages
under:
a) The Fatal Accidents Act, 1846-1908, on behalf of the
dependants of the deceased, and
b ) the Law Reform (Miscellaneous Provision) Act, 1934,
in respect of the deceased's shortened expectation of life.
There was also a claim in each case for funeral expenses. The
learned judge decided the question of liability in favour of the
plaintiff-appellant and found as a fact that the dependants
depended entirely on the earnings of the deceased. He apportioned
damages as follows:

A. Davies
1. Fatal Accidents Acts
a) To the widow - £5
b) To the daughter - £100
c) To the son - £150

2. Under Law Reform Act

To the widow £100 + £14 funeral expenses.

B. Williams
1. Fatal Accidents Acts
a) To the widow - £5
b) To the elder daughter - £50
c) To the younger daughter - £75
d) To the son - £100
2. Under Law Reform Act
To the widow £250 + £15 funeral expenses.

In fixing the sum £5 as damages payable to the widow in each case

under the Fatal Accidents Act, the learned judge took into account
the sum he had assessed as damages under the Law Reform Act
which in each case would go entirely to the widow because both
 deceased died intestate and neither left an estate exceeding £1000.
What he did was to give Mrs Davies under the Fatal Accidents Act
£705 less the £700 under Law Reform Act; Miss Williams £205
less £200 under Law Reform Act.
The respondent appealed on the question of liability. The appellants
cross-appealed on the question whether the judge was right in taking
the awards made to them under the Law Reform Act into account in
assessing the damages under the fatal Accident Act. The respondents'
appeal was dismissed and so was the appellants' except that one judge
thought Mrs. Williams' award under the Fatal Accidents Act was too
low. The appellant further appealed. This was dismissed but the
House of Lords allowed the appeal with respect to increasing that of
Mrs. Williams under the Fatal Accidents Act
On the substantive question, the House of Lords were unanimously of
the view that the learned judge had rightly, in assessing damages
under the Fatal Accidents Act, taken into account the damages the
widows were entitled to under Law Reform Act. On how to assess the
loss of dependency under the FAA, Lord Wright said:

"The actual pecuniary loss of each individual entitled to sue can only
be ascertained by balancing, on the one hand, the loss to him of the
future pecuniary benefit, and, on the other, any pecuniary advantage
which, from whatever source, comes to him by reason of the death. ...
It is a hard matter of pounds, shillings and pence, [cedis and pesewas]
subject to the element of reasonable future probabilities. The starting
point is the amount of wages which the deceased was earning, the
ascertainment of which to some extent may depend on the regularity
of his employment. Then there is an estimate of how much was
required or expended for his own personal and living expenses. The
balance will give a DATUM or BASIC FIGURE which will generally
be turned into a lu.np sum by taking a certain number of Year's
Purchase.19 That sum, however, has to be taxed down by having due
regard to the uncertainties, for instance, that the widow might have
married again and thus ceased to be dependent, and other like matters
of speculation and doubt."
This method of assessing the quantum of damages was approved
by our courts in Amakom Sawmill v. Mensah and Baaye v.
Prempeh? The method may be presented
lgebraic form
Wages = a
asfollows:
Living expenses = b
Datum = a-b
Years purchase = c
Lump sum = c(a-b)
However, payments which depend on the generosity of others
cannot be taken into account - Peacock v. Amusement
Equipment?1 This was an action by the plaintiff, the husband of a-
woman who died as a result of injuries sustained as a passenger on
a miniature railway conducted by the first defendants and owned
by the second defendants.
The deceased left everything, by her will, to her two children by a
previous marriage. The principal asset of her estate was a grocery
business. The children sold the business and, out of affection for
their father, voluntarily gave him £575 said to represent one-third
of the deceased's estate.
In an action by the husband for damages under the Fatal Accidents
Acts 1846-1908, Parker J held that the payment made by the
children must be taken into account in assessing the damages to
which the plaintiff was entitled. The plaintiff appealed. It was
held, on the appeal, that the payment made by the children was a
voluntary payment made out of consideration or affection for the
plaintiff and was not made in consequence of or by reason of the
death and must not, therefore, be taken into account in assessing
the damages to which the plaintiff was entitled. Somerveil L.J
said:
"... I think it would be only in very unusual circumstances that a
voluntary payment would be taken into account when there was no
expectation of it at the time of the death. ..."
Burgess v. Florence Nightingale Hosp, an action by the plaintiff,
the husband of the deceased further illustrates the point. The
plaintiff and the wife were dancing partners (professional). They
derived their income from demonstration fees and prize money
won in competitions. Their joint fees were paid to the husband in
cash. He then put this money in a drawer from which both took
whatever money was necessary for any particular- purpose. The
wife, as a result of the negligence of a surgeon at the defendant's
hospital, died. The husband brought this action for damages under
the Fatal Accidents Acts, 1846 for, inter alia, (a) loss of his wife as
dancing partner; and (b) loss of her contribution to their joint
living expenses.
The plaintiff said because he could not find a suitable dancing
partner as replacement, he suffered loss of income. Held, per
Devlin J:
"(1) That claim (a) must fail because it did not establish a benefit
on the plaintiff under the FAA, the arrangement being undoubtedly
a business one. Here the wife's services were duly paid for, that is
to say she took her full half-share of the joint earnings. This in no
way conferred a benefit on the plaintiff nor was it suggested that a
lady dancing partner would have asked for more but for the fact
that she was the wife of the other partner.
 (2) The plaintiff could claim for (b) because when husband and
wife with either separate incomes or a joint income were living
together and sharing their expenses, then, each, by the fact of the
sharing, was conferring a benefit on the other which arose from the
relationship of husband and wife; and accordingly, there was a
benefit which came within the FAA and was therefore recoverable
by the husband."

Can a party claim for shortened expectation of life?

Damages are recoverable under this head, even though

the person is dead, or even though he may have been
unconscious for a time before his or her death. In
assessing damages, the courts, in appropriate cases, may
have regard to the victim's knowledge of impending
death. In Flint v. Lovell, the plaintiff brought the action
against the defendants to recover damages for the
negligence of the female defendant in driving a motor
car into collision with the plaintiffs. The plaintiff
suffered serious personal injuries and medical evidence
suggested strongly that his life expectation has been
shortened. The plaintiff was a vigorous gentleman of 70
years in good health and condition, energetic and
exceptionally active for his age. As a result of the
accident, he was not expected to live
long. The judge gave £440 for the shortening of the
plaintiffs’ normal expectation of life and die defendant
appealed. It was held that the appeal must be dismissed
(per Greer &
Slesser L.JJ, Roche L.J. dubitante). The judge, in
assessing the damages, was entitled to take into
consideration, as one of the elements of damages, the
fact that the plaintiffs normal expectation of life had
been materially shortened.
In Atsyor v. Donkor, it was held by Coussey J (as he
then was) that damages can be recovered for shortened
expectation of life.

This decision was applied in Ayimavor's case. Here, it

was held that., in a fatal accident suit by administrators
of the estate of the deceased, it is proper to award
damages for loss of expectation of life. The Court of
Appeal per Apaloo J.A. 1 as by was) adopted the House
of Lords decision in Benham v. Gambling as the correct
basis for assessing damages or loss of expectation of
life. That is to say that the basis of the assessment of
this head f damages should not be the prospect of the
length of days but the prospect of a predominantly
happy life. The Court of Appeal also adopted the
English convention of awarding a low, almost nominal
amount of damages for this type of claim. (English
£500). In Ayimavor, the Court of Appeal allowed 1000
cedis for this type of claim for the prospect of a
reasonably happy life cut short by the accident.
You may recover for pain and suffering, though this
may be claimed only if there was some life in the
victim, however, short, before his death. It means;, if lie
is unconscious till death, you cannot claim under this
head.
Medical and funeral expenses are recoverable. And so
are administrative expenses, if they were incurred to
enable the plaintiff bring the action.

B. SUMMARY OF THE LAW AS

CONSOLIDATED IN THE CIVIL LIABILITY ACT
1963 (Act 176) (Parts 3 & 4)

As the memo to Act 176 says, its aims include reform

and codification, in one measure, of certain aspects of
civil liabilities in respect of: (1) compensation for the
families of persons killed in accidents; and (2) survival
of certain causes of action: see Memo to Acts of Ghana,
Vol. 1 pp. 177-178.
It is a re-enactment with slight amendments of the
existing provisions of the English Fatal Accidents Act,
1846 as amended. As noted earlier, the 1846 Acts were
passed to reform the common law relating to certain
aspects of civil liabilities because of the increase in fatal
accidents, when railways were introduced into the U.K.
New provisions introduced by Act 176, e.g. 18(l)(b),
provide for award of mental distress resulting to each of
the dependants, limited to 02000. Section 16 of Act 176
provides as follows:
"1. (1) Where the death of a person is caused by the
fault of another such as would have entitled the party
injured, but for his death, to maintain an action and
recover damages in respect thereof, the person who
would have been so liable shall be liable to an action for
damages for the benefit of the dependants of the
deceased.
2) Only one action may be brought in respect of the
death.
3) The action may be brought by the personal
representative of the deceased, or, if, at the expiration of
six months from the death, there is no personal
representative, or, no action has been brought by the
personal representative, by all, or, any of the
dependants.
4) The action, by whomsoever brought, shall be for
the benefit of all the dependants.
5) The plaintiff shall furnish the defendant with
particulars of the persons for whom and on whose
behalf the action is brought and of the nature of the
claim in respect of which damages are sought to be
recovered.
6) The action shall be commenced within three
years after the death."

Section 15 of Act 176 defines who dependants are:

1. Any member of the family of deceased. This is
amplified in the
First Schedule of Act 176 namely:
In this Part-
"dependant", in relation to a person whose death is
caused by a wrongful
act, includes -
a) any member of the family of the deceased, and
b) any other person whom he was by reason of
adoption under the Adoption Act, 1962 (Act 104) or
otherwise obliged to maintain and who suffers loss or
mental distress as a result of the death;

"member of the family" means –

(a) when used in relation to a citizen of Ghana anyone

of those persons mentioned in the First Schedule
according as the family is based on the paternal or
maternal system
FIRST SCHEDULE (Section 15)
 Paternal System Maternal System

Mother. Father, Mother, father wife,

wife, son, son, daughter],
daughter, brother, sister,
brother, sister, mother's mother
father's brother. mother's brother
NB: Husband mother's sister sister's
missing from son, sister's daughter
above list mother's sister's son,
mother's sister's
daughter . NB:
Husband missing
from this list.

(b) when used in relation to a person who is not a citizen

of Ghana the wife, husband, father, mother, grandfather,
grandmother, stepfather, son, daughter, grandson, grand-
daughter, stepson, step-daughter, brother, half-brother or
half-sister.

Yeboah v McKenzie

2. Any other person adopted by him under the Adoption Act, 1962
(Act '104) or any other person he is otherwise obliged to maintain
and who suffers loss or mental distress as a result of the death. —
Foetus? At any age? Relevant for claims by posthumous child: see
Blake v. Midland Railway Company,

Section 18 — pecuniary loss plus mental distress. Mental after

distress not possible 1966?

(Ignored by the courts):

"One would have thought that mental distress resulting from death
to dependants required no proof and the learned judge should have
awarded something if not the maximum allowed."
Section 20 - This section deals with what courts must not take into
account in assessing damages. These are:

a) any sum payable on the death of the deceased under any

contract of insurance;
b) any pension, gratuity or other like benefit payable under any
enactment or otherwise in consequence of the death of the
deceased.

Section 21 - Contributory negligence applicable here. See Baaye v.

Prempeh
Section 27 - Claims in respect of the Estate of the deceased:

"27. (1) Damages recoverable for the benefit of the estate by

virtue of this Act shall not include exemplary damages. by V1ItUe
of this Act

(2) Where the death of the deceased was caused by the act which
gives rise to the cause of action for the benefit of the estate the
damages shall be calculated without regard to any loss or gain to
the estate consequent on the death, except that a sum for funeral
expenses may be added.
'
(b) DEATH EXTINGUISHING LIABILITY

See Part 4 of Act 176

Section 24 - The following causes of action die with a tortfeasor:
a) Breach of promise to marry
b) Actions for seduction
c) Inducing one's spouse to live or remain apart from the other.
d) Adultery
e) A claim for compensation under the Workmen's
Compensation Law 1987 (PNDCL238). See Limitation Decree,
1972 (N.R.C.D. 54)
Chapter 27

DEFAMATION

Preliminary remarks
At the outset, it must be pointed out that legal protection for a
person's reputation in Ghana is governed by two legal regimes —
customary law and the received English common law principle.
In addition, since January 7, 1993 our appreciation of these two
legal regimes will have to be tampered by the provisions of
Constitution, 1992 on freedom of expression and allied rights
including the fact that the Constitution also guarantees a person's
right to an unsullied reputation.

Section 54 of the Courts Act, 1993 (Act 459) stipulates that in a

tort's dispute between two persons in Ghana the applicable law
shall be their personal laws. Personal law is defined as the system
of customary law to which a person is subject. If a person is not
subject to any system of customary law, then the personal law
shall be the common law. In the context of a defamation action,
what this provision suggests is that customary law principles
apply to such actions between two Ghanaians, in practice,
however, our courts and lawyers generally apply the English
common law principles of defamation to all actions. The
substance of the law discussed in this chapter will, therefore, be
the English principle. Where relevant and available, references
will be made to the appropriate customary law principles.
1(a) The scope of defamation in customary law is wider than at
(b) common law in that the former protects reputation and
(c) injured feelings but the laujer protects reputation only: see
(d) Atiase v. Abbobtey; Wankyiwaa v.Wereduwaa;lAmpong v.
Aboraa;4 and Afriyie v. Dansowah.5
Customary law does not draw a distinction between libel
and slanqer. Indeed
reason that
I
libel is said to be unknown to the customary law for the
simple
writing was unknown to customary law - per Apaloo J.A.
(as he then was) in
Anthony v. UC(f (but libel applies to effigies as well!!
Slander at customary law is actionable without proof of
spec al damage
only
solid Dased
provided false; but, few exceptions apart, at common law,
sland damage.
er is Truth is not always a defence in customary law slander. But
actio it is always a
nable defence at common law. The altitude of the customary Law
upon seems
proof on a policy which is inhospitable to certain utterances. See,
of fdr example,
speci AFFUL v. OKYERE (1997-1998) 1 GLR 730 where it was
al held defamatory for
1 The tort at common law is concerned with damage to one's
reputation not vanity or pride !!
the Defendant to call plaintiff a "witch" and also say the
Defendant had killed his two children.
(c) Article 21(l)(a) and chapter 12, especially clauses 1-5 of
article 165 of the 1992 Constitution, constitutionalise defamation
law. Sec for this reason the development in the US First
Amendment principles of the concept of a public figure, as
contrasted with a private person.
One purpose of the toil of defamation may be said to be the
preservation of a balance between the individual's right to protect
his reputation and the general right to free speech. See
Derbyshire County Council v. Times Newspapers Ltd, where it
was held that a democratically-elected public authority e.g.
district assembly, has no cause of action at common law to bring
an action in defamation!
Should it matter then whether a publication is defamatory in
Ghana today, that the Constitution, 1992 provides a right to a
rejoinder, the publication of which is enjoined on the media?
Does Article 164 throw a damper on an expansive constitutional
free speech regime in line with the US, India and emerging trends
in the UK?
For the US see - Gunther (10th ed.) pp. 1326-1343; New York
Times v. O'Sullivan; Chaplinsky v. New Hampshire, 315 U.S.
168 (1942). For example, in th U.S.,, it has been said that debate
on public issues should be uninhibited, robust and wide-open and
may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials (per Justice
Brennan). It also has to be conceded that, on balance, erroneous
statement is inevitable in free debate. How relevant is this
viewpoint to the Ghanaian situation?
f) The tort of defamation protects a person from false
imputations which harm his reputation with others. This should
be distinguished from false statements which do not damage his
reputation but cause or may harm him, for example, loss of
custom such as is dealt with by economic torts. (A false
statement that the plaintiff has ceased business - this may be
actionable as injurious falsehood).
g) Tort of privacy — Article 18(2) of the Constitution, 1992.
This provision also constitutionalises issues of the boundaries of
privacy, free speech and the protection of reputation. But does
the article provide a general right to privacy or only in respect of
the key words appealing in it?

Libel and slander *

Modem defamation consists of the twin torts of slander and libel.

The common law has drawn a sharp dividing line between
spoken defamatory utterances and imputations
conveyed by writing, signs, pictures and other means that confer
some kind of permanence on statements. Thus defamation may be a
libel which is actionable, without proof of special damage and may
be both a crime and a tort.1 Spoken defamation, a few isolated
exceptions apart, is neither actionable per se as a tort nor ii criminal
offence, unless the utterance amounts to some other crime like
sedition, blasphemy or breach of the peace. This division is the
result, less of conscious policy, than of a series of fortuitous
historical accidents in the UK. The law was imported into Ghana
with these elements. The UK history is therefore useful to us.

History*
Slander is the offspring of the common law. We note, in the Year
Books, that, in the earlier part of the sixteenth century, the common
law courts began to allow an action on the case for defamation. This
was in competition with the ecclesiastical tribunals which had till
then dominated the field without any more effective remedy than
penance! At first, the common law action covered only cases
involving imputation of an offence triable at common law, and such
slanders were held actionable without proof of
damage. I
At about the same time, the foundations of the modern law of libel
were being laid by the Star Chamber. The court did not invariably
content itself with fining the offender, but occasionally awarded the
complainant damages as well. Bui, although much concerned with
defamatory writings, the Star Chamber still treated words as libels,
while, conversely, in the common law courts, written imputations
were actionable as slander. The distinction was primarily one of
courts. In other words, the common law courts treated both written
and oral defamation as slander. The Court of Star Chamber treated
both written and oral words as libel. After the fall if the Star
Chamber, the King's Bench succeeded to the jurisdiction in libel and
henceforth the two branches of defamation, libel and slander, were
administered by the same court..
The modem torts of slander and libel are, therefore, the products of
two different lines of development. The former is a creature of the
action on the case as developed by the common law courts, the latter
was created by the Court of Star
court the
Chamber. When jurisdiction for both actions became vested in
one opportunity was missed to merge them into one action. It was
only at a later stage when the historical antecedents had been
forgotten that a search began for a priori reasons to justify the
established dualism.

Modern distinction between libel and slander

Once both actions became available in the same court, the need
arose a more justifiable distinction between them as part of this
modernisation process. It has been claimed that libel endures
longer than slander, that more significance is attached to the
written than the spoken word by those to whom the
communication is addressed, that libel conveys the impression of
deliberate calculation to injure reputation, while slander is usually
born of sudden irritability. In addition to these psychological
arguments, emphasis has also been laid on the allegedly disparate
area of dissemination, libel usually contained in newspapers or
other printed matter being propagated further than oral statements
addressed to a small circle of listeners. Undoubtedly, the common
law requirement of special damage for slander discourages some
trivial litigation, but at the cost of striking at the deserving and
unmeritorious litigant alike.
As far as the 17th century, the distinction between libel and
slander has been between the spoken and the written words.
Spoken defamation was slander and written defamation was libel.
Even though this remains so today, there is greater difficulty
indistinguishing between them than this simplistic test would
suggest. The rationale behind the distinction is that the
impermanence and transient nature of the spoken word makes it
reasonable for the lax slander, while the permanence of the written
word justifies the strict sanction of libel. Thus, books, newspapers
and even effigies are libels. If the thing is written, permanent and
visible to the eye it amounts to libel. In Monson v. Tussauds in an
earlier murder trial of the plaintiff, a verdict of not proven had
been returned by the jury. There, he put up a successful defence of
accident. In their exhibitions of wax figures, the defendants placed
the effigy of the plaintiff in the "chamber of horrors" which
contained models of many murderers and malefactors and the
plaintiff was represented as happened in the killing, the subject of
the murder case. The plaintiff sued for libel and an interlocutory
injunction to restrain the exhibition of the model of himself. The
interlocutory injunction was refused but the court did hold that the
matter might be defamatory. Lopes U said:
"Libels are generally in writing or printing, but this is not
necessary; the defamatory matter may be conveyed in some other
permanent form of statue, a caricature, an effigy, chalk marks on a
wall, signs or pictures may constitute a libel..."
There is however, a large volume of unclear material on this
matter especially because of advances in technology. Take the
case of sky writing — will it be libel or slander? Take imputations
which are merely audible but communicated through a medium of
temporary order — that is slander because it is transient. Now,
take the same spoken word which is permanent like the
gramophone record - libel or slander? The U.K. Defamation Act
of 1952 makes defamation through wireless telegraphy, libel.
The distinction between libel and slander in this borderline area
came up for consideration in the case of Youssoupoff v. M.G.M.
Pictures Ltd— in this case, the .scene in a talkie film depicted on
the screen itself were defamatory and held to constitute libel. A
Russian princess alleged that a film, entitled Rasputin, made by
the defendants, suggested that she had been raped or seduced by a
monk. She claimed damages for libel. It was held that she would
succeed as it was defamatory to say of a woman that she had been
ravished and would tend to cause her to be shunned and avoided,
although it involved no moral turpitude on her part. But this does
not look like an authority for saying that audible but permanent
defamatory matter libelous because the pictorial part of the
cinema film rather than the sound [rack considered as the ratio
decidendi.
Is reading aloud from a written material libel or slander? As you
can see question is of great importance to broadcasters. The
complication comes in if what is being aired is written. In the case
of Forrester v. Tyrrel, Esther M.R. w opinion that reading aloud
from a written material is a libel, hi that case, the defendant
received an anonymous letter while at a meeting of a lodge of
which both lie and; the plaintiff were members. The defendant
read the letter to himself and then, by leave of the chairman, read
it to the members present. The jury found that the letter contained
defamatory matter reflecting on the plaintiff. This was held to be a
publication of the libel.
On the other hand in the case of Osborn v. Boulter, a firm of
brewers, the defendants, wrote to one of their tenants, the plaintiff,
who had complained to them about the poor quality of their beer,
and falsely suggested that it was inferior because he had added
water to it. The letter was dictated to a typist and the plaintiff
maintained that this constituted the publication of a libel. It was
held that he must fail, for the communication and the occasion of
its publication being in the reasonable and ordinary course of
business, were privileged. Two of the judges Slesser and ScruUon
LL.J., were of the opinion that the reading aloud in any case
would only have amounted to a slander. The third Greer C.J. said,
libel. The majority viewpoint is supported by the Australian case
oi Medium v. Australian Broadcasting Corporation where: the
court refused to follow Forrester v. Tyrrel and held that reading
from a script amounted to slander only. This distinction needs to
be drawn because libel is actionable per se, whiles slander, subject
to four exceptions, is actionable only upon proof of special
damage.
Let us now proceed to consider the substantive principles seriatim.

ELEMENTS OF DEFAMATION
Whether slander or libel, the basic elements to be
proved are the same.
1. What then is defamation? The plaintiff has to
prove that a published statement is defamatory. The
first element is proof that the communication is
capable of a defamatory meaning. There are four
tests for determining this namely:
(a) The classical which was laid down by Parke B.
in Parmiter v. Couplands.19 Here the plaintiff
brought an action on the case for a series
of libels published of the plaintiff, the late mayor of
Winchester in the" Hampshire Advertiser"
newspaper imputing to him perfidious and corrupt
conduct and ignorance of his duties as mayor and
justice of the peace for the borough. It was held that,
in a case of defamation, the judge's duty is to tell the
jury the law regarding defamation and leave it to
them to decide whether the words were in fact
defamatory.
Baron Parke defined defamation to be a publication
without justification or lawful excuse, calculated to
injure the reputation of another by exposing him to
hatred, ridicule or contempt, e.g. humorous
caricature or cartoon, describing a person as
hideously ugly may be defamatory because it does
not only suggest physical unattractiveness but that
the person's appearance is repulsive!!! Berkoff v.
Burchill, Times, 9th August 1996 (but is the attack
on appearance or reputation'?)
(b) This test however, is not wide enough. Words
may cause a person to be shunned by others as in
Youssoupoff v. M.G.M. Pictures and this was added
to the test above. Similarly in Villers v. Monsley the
defendant wrote of the plaintiff that he stunk of
brimstone and that he had the itch. It was held for
plaintiff, Lord Wilmot saying: If any man
deliberately or maliciously publishes anything in
writing concerning another which renders him
ridiculous or tends to hinder mankind from
associating or having intercourse with him it is
actionable. See also Byrne v. Dean
c) Another criterion which should be added to
Baron Parke is a situation in which words used
damage a person in his profession or business or
office or trade. This was added by Lord Atkin in
Tournier v. Nat. Provincial Bank. In that case, the
plaintiff was a customer of the defendant bank. A
cheque was drawn by another customer in favour of
the plaintiff who, instead of paying it into his
account, indorsed it to a third person who had an
account at another bank. On the return of the cheque
to the defendants, their manager enquired about the
person to whom it had been paid and was told it was
a bookmaker. This information the defendants
disclosed to third parties. But here the law
distinguishes between an attack which affects the
person's business, office, profession or trade and one
which affects him personally: see Jones v. Jones. '
(d) In more recent times, an attempt has been
made to restate the law and provide one criterion, by
Lord Atkin in Sim v. Stretch. In that case, the
plaintiff’s housemaid was enticed away by the
defendant who sent this telegram to the plaintiff.
"Edith has resumed her service with us today.
Please send her possessions and the money you
bono wed, also her
wages ..." In an action for damages for libel, the
plaintiff argued that the words of the telegram were
defamatory, that they suggested that, out of
necessity, he had borrowed money from his
housemaid and that he had failed to pay her wages.
It was held that the action must fail as the words of
the telegram were not capable of a defamatory
meaning. Lord Atkin stated the test for whether a
publication is defamatory to be "would the words
tend to lower the plaintiff in the estimation of the
right-thinking members of the society generally?"
The problem with this test is how to identify "right-
thinking members" of society. So, an examination of
the cases shows that no single test is adequate.
Therefore, we have four tests. A publication must
pass the four tests for us to have the assurance that it
is not capable of a defamatory meaning.
Are mere abusive personal attacks, spoken in the
heat of argument, defamatory?
In Bonsu v. Forson, the plaintiff and the defendant,
who had been very close friends, lost their tempers
and quarrelled heatedly. The plaintiff alleged that
the defendant said of him: "You are a thief, you are
a hopeless lawyer and if it had not been for Owusu
Afriyie, you would have no clients"; and "you are
hopeless M.P." It was held that the words were
capable of a defamatory meaning but as they had
been spoken in the heat of passion, they were not
defamatory. So, the law is that words spoken in the
heat of a quarrel, argument etc. are not defamatory.
2. The second element in the common law of
defamation is the interpretation of the words to
determine whether they are actually defamatory.
The words must be construed in their fair and
natural meaning as reasonable, ordinary people will
understand except where innuendo is pleaded. The
words must be interpreted in context. The plaintiff
cannot select out of a passage which, read as
a whole, is not defamatory. An example of innuendo
is Cassidy v. Daily Mirror Newspaper Ltd. The
defendant published in a newspaper a photograph of
one Mr. C and a Miss X together with the words
"Mr. M.C, the race-horse owner, whose engagement
has been announced." The plaintiff was and
was known among her acquaintances as the
lawful wife of MC. But the defendants did not know
this. She brought an action for libel pleading
innuendo. It was held that the publication could be
defamatory and, as the jury had found that the
photograph
and the caption conveyed to reasonably-minded
people an aspersion on the plaintiffs moral
character, she was entitled to succeed. See Anthony
v. University of Cape Coast for a case of a false
innuendo. However, innuendo must be specifically
pleaded and proved.
True and false innuendo
An innuendo is a defamatory imputation whereby
extrinsic facts, known to the reader or listener,
import into the words spoken or the statement some
secondary meaning, in addition to or alteration of
their ordinary meaning. Thus, in a true or legal
innuendo, some extrinsic facts must be known to a
group, which make the ordinary words defamatory.
The distinction was material in Grubb v. Bristol
United Press.30 The plaintiff was the rector in a
village of Somerset. Unhappy events between him
and his parishioners culminated in a meeting of the
parishioners, rector and rural clan. Persons not on
the electoral roll and the press were asked to leave
before the meeting started. The defendant
newspaper published, on the next day, an article
with large headlines in which they stated the above
facts and also that the plaintiff charged £20 for
wedding bells. The plaintiff sued and pleaded
innuendo. It was held that an innuendo is an
allegation that words were used in a defamatory
sense other than their ordinary meaning and must be
founded on facts and matters and cannot be founded
only on interpretation because, if the words bear the
interpretation imputed to them, they are defamatory
in their ordinary meaning. Also, if you plead part
only of an article as being a libel, you may not use
another pail of it as the sole support for an innuendo.
Lewis v. Daily Express31 is also a case of false
innuendo. In that case, the defendant published that
the Fraud Squad was investigating the affairs of a
company of which the plaintiff was the chairman.
The plaintiffs pleaded innuendo arguing that anyone
who read the publication would think that they were
frauds. The words were found to be defamatory in
their ordinary meaning. The innuendo claim failed.
But in Hough v. London Express Newspaper Ltd.,
the defendants published an account of a boxer and
the photograph of his curly-headed wife. The
plaintiff, another woman, in fact the boxer's wife,
brought an action and produced witnesses who gave
evidence that they read the statement to mean the
plaintiff was not the boxer's wife and, even though
they were not misled, the innuendo was held proved
because these were people who possessed special
facts and therefore might understand words in a
defamatory sense.
Once a true innuendo has been held to exist, the
principles of interpretation are the same as those
used for out and out defamatory statements. It is for
the judge to rule whether the words are capable of a
defamatory meaning and the jury must decide
(where the trial is by judge and jury) whether,
factually, they were defamatory considering all
circumstances. In, Ghana the two functions are
performed by the Judge, since civil actions are tried
by judge only.

3. Reference
The third element in defamation is that of reference
to the plaintiff, i.e. there must be something in the
defamatory statement pointing to the plaintiff. In the
words of Lord Atkin "To be actionable, the
defamatory words must be understood to be
published of and concerning the plaintiff" Problems
arise when the words are spoken or written about a
class or group and an individual member seeks to
sue in defamation In Knupfer v. London Express 3,
the newspaper published an article referring to an as
association of political refugees which, it was
admitted, could have been defamatory if it had been
written about a named individual. The appellant was
head of the U.K. branch of the association which
consisted of 24 members. It was held that the
applicant was not entitled to damages as the words
were written of a class and he had failed to show
that they were pointed at him as an individual, i.e.
there was no reference to him.
This does not mean that the plaintiff must be
specifically mentioned by name; but there should be
evidence connecting the plaintiff to the statement. In
Le Fanu v Malcolmson, the appellant wrote an
article alleging cruelty in the respondent's factory.
Although the letter, in the course of denouncing the
cruelty did not specifically refer to the respondent, it
was held that, even though defamatory matter might
appear only to refer to a class, a person can, by
innuendo, show that it referred to him and such a
person may maintain an action in respect of such
defamation.
The size of a class and defamation action by an
individual member was discussed also in BROWNE
v. D.C. THOMSON & Co. Ltd. (1912) S.C 359. In
that case the defendants' newspaper published an
article stating that in Queenstown, the Roman
Catholic authorities had instructed that all protestant
shop assistants should be dismissed. The seven
persons who alone exercised religious authority on
behalf of the Roman Catholic Church sued for libel
and succeeded. Lord Dunedin j justified the decision
 saying:
‘… If a certain set of people are accused of
having done something, and if such accusation is
libelous, it is possible for the individuals in that set
of people to show that they have been damnified,
and it is right they should have the opportunity of
recovering damages as individuals.

NB: From the three cases, the factors to be taken

into account defamed are (1) size of class; (2)
generality of the charge; and (3) of the accusation.
The bigger the class, the more difficult it wi
individual to rely on the words for his action.
Conversely, if the class is small, an individual
should be able to sue.
It is immaterial also that the writer did not intend to refeu to the
plaintiff. Thus in Hulton v. Jones Lord Loreburn had this to say:
"Libel is a tortious act. What does the tort consist in? It consists
in using language which others, knowing the circumstances,
would reasonably think to be defamatory of the person
complaining of and injured by it. ... It was not what the defendant
intends, but what the people around the area think of the words."

The point made in the above quoted statement is illustrated by the

decision in Newstead v. London Express in this case the
defendant published an account of the trial for bigamy of a
Harold Newstead, a 30 years old Camberwell man. The reporter
had included the address and occupation of the Harold Newstead
of whom this report was a correct one but the sub-editor deleted
it. This want of particularity caused readers to think that the
plaintiff, another Harold Newstead of Camberwell of the same
age, was meant. The statement was tine of a Camberwell barman
of that name but not true of the plaintiff, a Camberwell
hairdresser of the same name!! It was held to be no defence that
the words were true of and intended to refer to another person
and the jury was held justified in finding that the words referred
to the plaintiff.

4. Publication
Libel and slander protect reputation. Therefore, unless the
defamatory matter is published, a person's reputation suffers
nothing. Publication means making known the defamatory
matter, after it has been written or spoken, to some person other
than the person of whom it is written or said. It need not be to a
large audience. In Pullman v. Hill, the alleged libel was contained
in a letter about the plaintiffs, two of the members of a
partnership, written on behalf of the defendants, a limited liability
company, and sent by post in an envelope addressed to the firm.
The letter was dictated by the managing director of the
defendants to a clerk who took down the words in shorthand then
wrote them out in full using a typewriter. The letter so written
was copied by an officer from whom it reached its destination. It
was in the ordinary course of business opened by a clerk of the
firm and was read by two other clerks. It was held (reversing Day
J's judgment) that the letter must be taken to have been published
both to the plaintiff's clerks and the defendant's clerks and that
neither occasion was privileged.
If published only to the one of whom it was written, there is no
publication; for you cannot publish a libel of a man to himself. If
the person who becomes aware does so through stealing or
eavesdropping, there is no publication. In Huth v. Huth39 the
defendant posted a statement to the plaintiffs, in a sealed
envelope, which they alleged was defamatory. In breach of his
duty and out of curiosity, the statement was taken and read by a
butler. The plaintiff claimed that this constituted a publication of
the libel for which the defendant was responsible. It was held that
the statement was not published in law and the plaintiff’s action
failed.
Telegrams and postcards are deemed published to all who handle
their contents are understandable. Similarly, libraries, news
vendors and bookshops are deemed to have published defamatory
matter contained in what they sell or offer to their customers. The
point was made in Sadgrove v. Hole. In Vizetelly v. Mudie's
Select Library, the proprietors of a circulatory library circulated
copies of a book which, unknown to them, contained a libel on the
plaintiff. In an action for libel brought against them, they failed to
show that it was not through their negligence that they did not
know the book contained the libel when they circulated it. It they
were liable as publishers of the libel.
The principle was further explained in Emmens v. Pottle, where
it was held though he is did not that the vendor of a newspaper in
the ordinary course of his business, liable prima facie for libel
contained in it, is not liable, if he can prove that he know that it
contained a libel; that his ignorance was not due to any negligence
on his own part; and that he did not know and had no ground for
supposing that tie newspaper was likely to contain libelous matter.
If he can prove these facts, he is not i publisher of a libel. He is in
law an innocent disseminator.
The rule also does not mean that these facilitators or distributors
or facilities must read every material they put out. Everything
depends on whether there is general or widespread knowledge that
a particular newspaper or medium usually contains defamatory
matter or that an author is in the habit of doing so. If yes, then the
seller is on notice to check material from those sources before
circulating them.
This rule will be very harsh on publishers or printers of
newspapers and facilities such as libraries or innocent
disseminators, and so such an innocent disseminator is excused
from liability under two conditions: (1) where he has no reason
to suspect the presence of defamatory matter; and (2) where he
acted without negligence.
A lot of problems arise in the determination of this element of
publication. Is a defendant liable for unsuspected over-hearing
(i.e. eavesdropping) of matter? Or in the following situations:
i) father opens son's letter;
(ii) servant reads employer's unsealed letter (Huth v. Huth);
(iii) confidential secretary reads letter;
(iv) A statement not heard by the recipient e.g. because he is
deaf, or not understood by him because it is written in a language
he does not know.
A defendant will be held to have published statements which he
intends a third party to know or should have foreseen might come
to his attention: see Huth v. Huth. As a rule of thumb, a defendant
must know or anticipate, because it is reasonable, that a spouse
might, in some circumstances, open the other's letters.
Similarly, a businessman's secretary is likely to open letters
addressed to him unless marked "private" or "personal" or even if
so marked, it may be opened by a confidential secretary! As Lord
Justice Harman said in Theaker v. Richardson
"the question of publication of a libel contained in a letter will
depend on the state of the defendant's knowledge, either proved or
inferred, of the conditions likely to prevail in the place to which
the libel is destined."

Repetitions and republications -

Each repetition is a fresh publication, thus giving plaintiff a cause
of action. The heart of defamation lies in publication because the
tort protects the estimation in which others hold the plaintiff. What
they have not heard or seen cannot influence their view of you.
This is why the rule is that any person who repeals or reproduces
defamatory matter is also deemed to publish it. Every person who
passes the matter on to another is a publisher in law, even though
he might not be the originator.

Slander
As a tort, it requires proof of special damage. In other words, the
plaintiff cannot succeed in an action in slander unless he can show
that he suffered damage as a result of the slander. To this, there
are four exceptions that is to say, for types of slander which are
actionable per se. They are:
(a) Imputation of crime
If a person, orally or verbally, falsely imputes that the plaintiff has
committed a crime for which he could be punished corporally, i.e.
to undergo imprisonment or suffer the death penalty, this is
actionable per se. Where the imputation attracts only a fine, it is
not actionable per se. Thus in Hellwig v. Mitchell, the defendant,
manager of a hotel, in the presence of others, said to the plaintiff
"I cannot have you in here, you were on the premises last night
with a crowd and you behaved yourself in a disorderly manner and
you had to be turned out." It was held that the plaintiff’s action for
damages would not succeed as the defendant's words did not
impute the commission of a criminal offence punishable with
imprisonment in the first instance and, for this reason, they were
not actionable without proof of special damage.
The imputation need not be an imputation of a specific crime. It is
enough, if the words suggest that the plaintiff has committed some
crime. Such a case is the case of Webb v. Beavan, where the
defendant said to the plaintiff, "I know enough to put you into
Gloucester gaol" and it was held that the words were actionable
per se. In die local case of Chuku v. Nkrumah, the words "rascal
thief” were held actionable per se; but, since they were spoken in
the heat of anger, they were held not to impute a felony and
therefore not defamatory.

(b) Imputation of a loathsome disease

In Bloodworth v. Gray, the defendant had, on several occasions,
suggested to others that his son-in-law, the plaintiff, was suffering
from venereal disease. The plaintiff brought an action for
defamation. It was held that, notwithstanding the plaintiff’s failure
to prove special damage, he was entitled to succeed as the
defendants’ words were actionable per se.
But it is not clear whether imputation of any other kind of disease
will be actionable per se. It may well be that an imputation of
leprosy is actionable per se. In Taylor v. Perkins, the word 'Thou
ait a leprous knave" were held actionable] per se. Will an
imputation of HIV/AIDS or epilepsy qualify under this exception?
Certainly, HIV/AIDS should be accepted. Though unfortunate,
there is no doubt that most people shun the company of a person
who' is alleged to be HIV/AIDS positive. The same perhaps
should apply to epilepsy. We are all witnesses of how people
behave when another suffers an epileptic fit in their presence.
Invariably the reaction is to run away from the person.
(c)Slander in respect of an office, profession, trade or business
If the words are uttered about a person and they tend to disparage
him profession, trade or business, then the words are actionable per
se. The to note is that the defamatory words must have been spoken
in relation to profession, or trade. In the case of Jones v. Jones, the
defendant told another plaintiff, a headmaster, had committed
adultery with the school cleaner that the defendant's words were not
actionable in the absence of proof of damage. The English House
of Lords held that the allegation did not conduct in his profession
and, regardless of its prejudicial effects on his was not actionable per
se. The slander (if any) was on the headmaster as a man as a
headmaster. Thus the kind of imputation which is actionable per
head may have to be: you are a useless lawyer, an incompetent
doctor trader etc.

(d) Imputation of unchastity

In the UK, under the Slander of Women Act, 1891, it is slander to
impute a unchastity to a woman. This includes allegation of
lesbianism. In Ghana, the law was Hotchand v. Gentleman Salami
per Djabanor J. that:

1. Spoken words imputing unchastity to a woman are, under the

cutomary law, actionable per se.
2. "But it is also sound law that, if at the time the words were
uttered, there were circumstances known to the hearers, which
clearly show that the words were not used in the sense of imputing
unchastity, then no action lies."
3. Words like 'prostitute', etc which plainly impute unchastity
actionable without proof of special damage, if it is clear that they
were not intended to impute unchastity, but were spoken merely as
quarrel vituperation or abuse and were so understood by the hearers.

The UK act was explained in 1942 in the case of KERR v.

KENNEDY (1942) 1 KB 409. In that case, the defendant said to
another that the plaintiff 'used to live with other women - she is a
lesbian: The court (per Asquith J) held that the imputation of
lesbianism was an imputation of unchastity under the 1891
legislation. Therefore, it was not necessary for the plaintiff to prove
damage.

(e) Special damage

This means that the plaintiff must have suffered a material loss as a
result of the defamation- Two questions arise. First, what is material
/loss? Secondly, the problem of causation, that is the connection
between the words uttered and the resultant damage.

(i) Causation
So far as causation is concerned, the test is reasonable foreseeability
as in negligence. Thus, in Lynch v. Knight, the plaintiff brought an
action to recover damages from the defendant for slander uttered by
him to her husband, imputing that she had almost been seduced by B
before her marriage and that die husband ought not to allow B to
visit at his house. The ground of Special damage was that in
consequence of the (statement) slander, her husband sent her home
to her parents, whereby she lost the consortium of her husband. It
was held that the cause of the complaint thus set forth would not
sustain the action because the alleged ground of special damage did
not show a natural and reasonable consequence of the slander. It was
said that if the imputation had been that she had broken her
matrimonial vows, i.e. committed adultery, then the husband's
behaviour would have been expected. But, as a reaction to the
particular situation, no one would have foreseen the consequence as
being the turning out of the wife from the matrimonial home. The
concept of foreseeability is here narrower than in negligence.

(ii) Material loss

A loss that can be quantified in money, i.e. pecuniary loss. In Allsop
v. Allsop, the plaintiff suffered physical illness as a result of her
mental suffering following upon the slander. This was held not to
amount to special damage.
In Coward v. Wellington, the wife of the plaintiff was in the service
of Sir Samuel Meyrich and thereby maintained herself. The
defendant wrote a letter to Sir Samuel, imputing dishonesty to the
plaintiffs wife, whereby she was dismissed from her job to the
damage of the plaintiff. It was held that, once the wife was living
apart from the plaintiff and thereby maintaining herself and was
dismissed in consequence of the defendant's letter reflecting on her
character, the plaintiff can maintain action for special damage. But if
he dismissed her with intent to take her back again, the action will
not lie.
So also in Storey v. Challands. The plaintiff was a commission agent
in the employ of a company. The defendant, intending to injure him
in his trade, business and employment, spoke the following words:
'If you have anything to do with Storey, you will live to regret it; he
is a most unprincipled man; he had borrowed of Martin a
considerable sum and he could not get a shilling of it.' The plaintiff
alleged that, as a result of these words, a man who wanted to do
business with him refrained from doing
This extends to communications between solicitors and their clients,
whether oral or written. This means an action in defamation cannot
be founded on information given by a client to a lawyer and vice
versa. This was the basis of the decision in More v. Weaver But
doubt was expressed about whether the privilege will cover every
gossip exchanged however irrelevant to the mutual business.

(b) Qualified privilege

The best generalisation of this defence is the one formulated
by Baron Parke in Too Good v. Spy ring thus
"(the defendant is liable for a defamatory publication) unless it is
fairly made by a person in the discharge of some public or private
duty, whether legal or moral, or in the conduct of his own affairs, in
matters where his interest is concerned. If fairly warranted by any
reasonable occasion or exigency, and honestly made, such
communications are protected for the common convenience and
welfare of society and the law has not restricted the right to make
them within narrow limits."
Textbook writers categorise this type of privilege into five groups:
(i) Words relating to matters of common interest: For
example, Hunt v. Great Northern Railway, the defendants posted
up a circular in such of their premises as would be frequented by
their employees, stating that the plaintiff had been dismissed for
neglect of duty. The privilege of common interest was held to
extend to the defendants.

(ii) Words protecting the interests of publisher: A defamatory

published for the fair and reasonable protection of the publisher's
own privileged. Thus a person may publish anything which he
believes to be in e.g. recall Osbourne v. Boutler, where
allegations of watering beer were held privileged.

Another illustration is that of Somerville v. Hawkins. The

plaintiff had been dismissed from the defendant's service on
suspicion of theft. When he came to collect his wages, the
defendant called two other employees of his and addressed them
thus in the presence of the plaintiff : "I have dismissed that man
from my service for robbing me; do not speak to him any more in
public or in private, or I shall think you as bad as him." It was
held privileged because it was both the duty and in the interest of
defendant to prevent his servants from associating with persons
of such character as he disapproved and the absence of malice
must be presumed until proved.

(iii) Words protecting the interest of another: Here qualified

privilege is analogous to the defence available in relation to the
intentional torts. The defendant must show that in the
circumstances, he ought to do something to protect the other's
interests. The defendant must have a duly however characterised
(i.e. whether social or legal or otherwise) to make the statement.
There are two conditions: (a) recipient must be interested in the
communication; and (b) the maker must be under some
obligation to communicate. The test is whether the interest of the
person receiving die communication is of such a character as, by
its very nature to create a legal, moral or social duty in the
defendant, in the circumstances, to make the statement in
question.

As noted above, the recipient of the communication must have an

interest in the communication and the maker must have a duly to
report, these two factors must be present before this head of
defence can succeed. This principle is made clear in Watt v.
Longdon. Here the foreign manager of a company, wrote to a
director, the defendant, and said that the managing director, the
plaintiff, was "a blackguard, a thief, a liar who lived and lives
exclusively to satisfy his own passions and lust." The defendant
showed this letter to the plaintiffs wife and to the chairman of the
board of directors of the company. The allegations contained in
the letter were unfounded but the defendant believed them to be
true. The plaintiff sued for libel. It was held that he was entitled
to damages as the publication of the letter to his wife was not
upon a privileged occasion since the defendant did not have
sufficient interest or duty, legal, moral or social, to make the
communication. Publication to the chairman of the board of
directors was, however, held privileged.

Instances of such situations are multitudinous. Often the fact that

a confidential or close relationship exists is held by the courts to
create a moral or social duty upon one party to report such
communication to the third party. Thus, a mere relative or
intimate friend of a lady may inform her about the character of a
fiancé for her own interest; and, if it turns out to be untrue and
yet he believed it, then it comes under this head. An illustration
of this head of cases is Stuart v. Bell J1 where a host informed his
guest of his suspicions about the latters servant. Stanley, the
explorer and his valet Stuart were staying with the mayor of
Newcastle, Bell. The Edinburgh police made a very carefully
worded communication to the Newcastle police that there had
been a robbery at a hotel in Edinburgh where Stuart was staying
and it might well be to make very careful and cautious inquiry
into the matter. The Newcastle police showed the letter to die
mayor who after consideration showed it to Stanley who
dismissed Stuart. Stuart sued the mayor. Two of the three judges
held that the mayor had a moral duly to communicate and Stanley
a material interest to receive the communication. The other judge
felt there was no such duly in this case.
(iv) Public interest: Fair and accurate reports of parliamentary
and judicial proceedings are entitled to this qualified privilege:
see articles 120 and 116(5) and (6) of the Constitution 1992.
Statements made to help in the apprehension and prosecution of
criminals are also privileged
business with him. It was held that if you say that a commission
agent is unprincipled and borrowed money without paying back, it
will not be actionable without a proof of special damage. And
special damage is proved if it is shown that, as a result of what was
said, a man who wanted to do business with him refrained from
doing so. However, if A is going to deal with B and asks C about B,
this is a privileged communication, as everyone is quite at liberty to
state his opinion, bona fide, of the respectability of any person he is
inquired about. Judgment was given in favour of the plaintiff.

CUSTOMARY LAW
As noted in the preliminary remarks to this chapter, defamation is
governed by two legal regimes in Ghana. These are the customary
law; and the received English common law.
From the authorities, it appears that damages were not awarded a
successful party in defamation at customary law. Whether this is
an invariable outcome, the position today is that the courts award
pecuniary damages to a successful party whether the litigation is
governed by customary or common law.
Under the customary law, there is only one action, that is the
action for slander which is actionable per se. This was confirmed
in Atiase v. Abbobtey. In Dadson, the plaintiff claimed £200
damages from the defendant, averring that the defendant, in a
public place in Anomabu and to the hearing of many persons, had
said that he was an ex-convict. It was held that these words were
actionable per se. Again in Ampong v. Aboraa, the plaintiff who
was a candidate for the Akropong Stool was called "slave and
beast" by the defendant. The plaintiff sued for damages for
damages for slander the, in an amendment to his statement of
claim, pleaded to have the matter dealt with under customary law.
The court held that the epithet "slave" by itself was actionable
under customary law without proof of special damage, although
whether it still carried its former sting.

DEFENCES
(a) Absolute Privilege:
This defence covers either the occasion on which the statement is
made, the nature of the communication or the writer. This defence
shows defamation does not always protect reputation against free
speech but sometimes it does the opposite. Even though the
publication might be defamatory, the interest in freedom of speech
circumstances excuses the statement from liability. Thus, this
defence act as a complete bar to the action. The defence cannot be
defeated by proof of malice in the publisher. The explanation is in
public policy and the need to protect the public interest.

Four types of communications are covered by this defence:

(i) Executive matters: Communications related to state matters are

absolutely privileged. This was held in Atitsogbe v. Harlley. As
Hayfron Benjamin J explained it in this case, even if the action was
properly brought, the statement was issued when Harlley was in
executive position. So privileged. The defence also covers
diplomatic communication. For example, internal embassy
memoranda. Thus in FAYED v. AL-TAJIR, the acting ambassordor
of the United Arab Emirates in London sent a memorandum which
was critical of the plaintiff to one of his counsellors. The plaintiff
sued an it was held the memorandum was privileged. The Law was
explained by Lord Kerr:

" I have reached the clear conclusion that the broad concept of
international comity, in combination with the settled rule within that
concept expressed by the "inviolability" of diplomatic documents,
require us to hold that this dispute is not justifiable in our courts. In
the context of an action for defamation this consequence can be
expressed by holding that the publication of this document in the
circumstance of this case is protected by absolute privilege; and I so
hold...."

(ii) Judicial proceedings — Articles 114(9), 132(3), and 127(3) of

the Constitution, 1992. Any statements made from the Bar are
absolutely privileged and so are statements made before tribunals,
committees and commissions. It extends not only to judges but to
counsel, the jurors, the witnesses and the parties. For example, in
Scott v. Stansfield, a county court judge, while sitting in court said
to the plaintiff "You are a harpy preying on the vitals of the poor:"
The words were held to be absolutely privileged. This privilege
protects the public interest, not the judge — public interest in the
independence of the judges and the judicial process.

(iii) Legislative proceedings — Articles 96, 97(1), 115, and 116 of

the Constitution, 1992. All proceedings in Parliament are absolutely
privileged and all parliamentarians enjoy immunity from court
proceedings for acts, information and speeches made in Parliament.
This protection extends to committee sessions as well. It has been
said that what is said or done inside Parliament cannot be examined
outside Parliament for purposes of supporting a cause of action
arising out of something said or done outside per Brown J in Church
of Scientology v. Johnson-Smith. Also in Prebble v. T. V. New
Zealand it was held that parliamentary material cannot be used either
as a shield or a sword. Does Parliament for this purpose extend to
the whole geographical space occupied by the legislature, e.g.
compound, coffee shops or committee rooms? The answer seems to
be in the affirmative.

(iv) Solicitor-client communications

In Wason v. Walter, the Times of which the defendant was
proprietor, published an accurate report of a debate in the House of
Lords during which Earl Russell, Earl Derby and the Lord
Chancellor spoke in disparaging terms about a statement made of the
Lord
Chief Baron by the. plaintiff in a petition to the house. The plaintiff
brough an action for libel. It was held that the action could not
succeed, as a faithful newspaper report of a debate, in either house of
Parliament, which contains matter spoken in the: course of debate
disparaging to the character of an individual, will not give that
individual a right of action against the newspaper proprietor.
But, as was held in Chief Anthony Enahoro v. Associated
Newspapers of Nigeria Ltd/3 for the defence to succeed in this type
of cases, the defendant must prove that the report was, not only fair
and accurate, but also that it was published bona fide and without
malice.
(v) Misconduct of public official: Where a person believes that then,
has been misconduct on the part of a public officer, publication on
the alleged misconduct is privileged. In Harrison v. Bush, 4 the
defendant and others wrote a petition to the Home Secretary asking
him to set up an inquiry into the conduct of the plaintiff who was a
justice of the peace and the plaintiff sued for defamation. Judgment
was given on the basis of this principle in favour of the defendant.
oner motive. mad e the between
Malice: Qualified privilege is destroyed by evidence of
malice, i.e. impr The plaintiff can show that there is malice,
if he can prove that the defendant statement to serve a
purpose other than justice. This is the basic difference
Absolute and Qualified privilege.
In Groom v. Crocker the plaintiff took an insurance policy
with an company by the terms of which he was bound to
leave all litigation in the company. The plaintiff was
involved in an accident which was entirely the second party
in the collision. A passenger in the plaintiffs car sued both
and the second lorry driver and the plaintiff accordingly
informed the ins solicitors of the insurers, to gain an
advantage for the company, malicious the proceedings that
the collision was due to the negligence of the plaintiff. was
entered against them and the plaintiff sued them for libel
for saying thajt the accident and for breach of contract.
Judgment was entered in favour of The court found that
there was evidence of malice in the solicitor's The court
therefore held that, even if the communication was
qualified, the malice destroyed it.

Excess of privilege: Qualified privilege will also be

defeated by excess For example, the privilege may be
deemed exceeded if material is circul
persons who should legitimately receive it: see the cases of Adam
v. Ward; Tackyie v. Kabbah.
We may also note here, the decision in Tsikata v. Independent
Newspapers. In this case, Mr. KojoTsikata, then security chief of
Ghana sued the London newspaper in defamation. The action was
in respect of a feature article published by the paper. The article
was based on the report of the Special Investigative Board (SIB)
which investigated the abduction and murder of three High Court
Judges of Ghana and a retired Army Officer. The article
contained aspects of the report which were unfavourable to Mr.
Tsikata but failed to balance these by also making references to
what was in Mr. Tsikata's favour. In particular, the article failed
to indicate that the then Attorney-General had examined the
report and expressed it as his considered opinion that the parts
that were unfavourable and which had been utilised by the paper
did not constitute evidence of wrongdoing to justify prosecution
for any offence under the laws of Ghana; and therefore he (i.e.
the Attorney-General) did not intend to institute any prosecution.
The English Court decided once a publication was covered by the
qualified privilege defence, the defence will not be defeated by
inaccuracies contained in the publication.
(c) Fair comment
These are comments or criticisms on matters of public interest,
such comments being made honestly and without malice. For this
defence to succeed, there are three conditions which must be
satisfied.
(i) The first element is that the comment must be on a matter
of public interest. The authorities for this requirement are: (a)
Seymour v.
Buttenvorth; (b) Purcell v. Sowler; (c) Boohene v. Abeyie and (d)
Kemsley v. Foot (ii) The second requirement is that the comment
must be based on a fact. If you cannot prove the factual basis of
the comment then the defence may not hold - the facts must be
true. Thomas v. Bradbury. If the statement on which comment is
based contains a defamatory factual statement, this has to be
justified. Comment must be based on [true] facts. For example in
Kemsley v. Foot, the comment "Lower than Kemsley" was made
in an article in one newspaper condemning the journalistic
standards of the Evening Standard. Lord Kemsley owned
newspapers but not the Evening Standard. It was held by the
House of Lords that, taken together, the article plus the heading
cast a slur on the journalistic standards of Kemsley newspapers,
this was a sufficient subtractum of fact on which a comment
could be based.
Another example may be the statement: "X is an opportunist. He
has served in every government since independence." The first
part may be considered a comment on the second part. Provided
therefore that you can prove the second part, the defence will
succeed. But, if only the first part is made, then you can only
avoid liability by justifying it that is proving it.
Difficulties where imputation of dishonesty or self-seeking is
involved: In Campbell v. Spottiswoode, the defendant alleged that
the plaintiff's motive in attempting to organise a religious
campaign to spread Christianity among heathens was to increase
sales of his newspaper. The defence of fair comment failed the
defendant because he could not establish a basis of fact for the
statement. (iii) The comment must be an opinion. The law as
expounded in cases such as Boohene v. Abeyie and Turner v. M-
G.M. Pictures*6 is pat, provided there is a factual basis, opinion
is free. In other words, a defamation action based on an opinion
will fail.
In evaluating such statements the courts adopt a stricter test than
generally applies to fair comment. But Lord Denning has said the
test should be the same, i.e. whether the defendant honestly holds
that opinion. In Slim v. Daily Telegraph Lord Denning said: Pair
comment is available to an honest man expressing an honest
opinion whether exaggerated, wrong or prejudiced.
(d) Justification
This defence means that the defendant says the publication is true.
The defendant must establish the truth of all the material
elements, that is to say the pith and substance of the statement; in
other words, that the statement is substantially true. In Wakley v.
Cooke, for example, the defendant called the plaintiff a libellous
journalist. The defendant pleaded justification. In support, he
proved that the plaintiff had once been found liable in libel. It was
held that the statement made the plaintiff a habitual libeller. This
was not justified by proo that he has once been found liable in a
libel suit. So the defence failed.
It must be noted that truth or justification is an absolute defence to
common law defamation. Under English Defamation Act, 1952,
where several charges are levelled, proof of some, provided what
is left does not materially injure the plaintiff, will be sufficient for
purposes ot the defence. Nothing stops the plaintiff here in this
action from relying only on assertions, inter alia, that the
defendant cannot establish.

This defence is bound up with interpretation of statement

on: e.g. (a) X is suspected of fraud — only fact of
suspicion needs to be proved
(b) X has committed fraud — you have to prove
fraud;
(c) A film produced by X is vulgar and degrading. If, on
public display at the time — Fair comment.

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

Libel Act, 1843 (6 & 7 Victoria, c. 96)

It must be noted that, by virtue of the Second Schedule to the
Courts, Act, 1993 (/ 459), a limited defence is available under
the above legislation. Sections 1 and 2 of 1 Act allow a
defendant at the first opportunity to express remorse and offer
amends. the plaintiff rejects it, the defendant can refer to it in
his pleadings. The Act required the court to lake this into
account in fixing damages or determining liability.