CAVENDISH UNVERSITY ZAMBIA

SCHOOL OF LAW

COURSE: CUZL124- General Principles of law of Tort

LECTURER: Frazer Moonde
Cell: 0977375903
Email: fmoonde@cavendish.co.zm

SUMMARISED LECTURE NOTES

Topic – 1: Meaning and nature of Tort

1. Definition of Tort
A Tort is a Civil Wrong, as opposed to a Crime, for which the remedy is a common Law action
for unliquidated damages.

A tort is neither a breach of a contract nor a breach of trust.

Unliquidated damages means unspecified or unquantified damages.

The Law of tort is premised on the idea that hurt no one in words or actions couched as “alterum
non leadere”. Thus, the law of torts serves the following functions and purposes:
➢ Provides remedies for wrongs;
➢ Provides compensation for loss;
➢ Acts as both individual and public deterrent;
➢ Provides protection to individuals and communities; and
➢ Acts as means for both corrective and distributive justice.
Take note of the following important terms in tort Law:
➢ Tortfeasor- is a person who commits a tort or civil wrong.
➢ Malfeasance- is a willful or intentional act that causes harm to another person.
➢ Misfeasance - is unwillful or unintentional act that causes harm to another person.
➢ Nonfeasance-is failure to act where action is required.

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2. Tort or Torts?
A question usually arises amongst academics and scholars as well as Lawyers alike as to whether
nomenclature is Law of tort or Law of torts.
Whether it should be a `Law of Tort` or `Law of torts` is a matter of dispute and there are two
schools of thoughts on the issue. One is called the Specific Torts Theory which maintains that
there should be a `Law of Torts; The other is referred to as the General Principle of Liability
Theory which propounds the idea of a `law of Tort’.

There are two (2) competing theories in this regard as alluded to above. According to one theory,
there is a general principle that all wrongs are actionable as tort unless there is any legal
justification. The other Theory says that there is no general principle as liability as such but only
a definite number of torts as trespass, negligence, nuisance, defamation, etc. and the plaintiff has
no remedy unless he brings his case under one of the nominate torts.

3. Essentials of Tort
Tortious Liability arises from a breach of duty primarily fixed by law and its breach is
redressible by an action for unliquidated damages.
There are three (3) essential elements which constitute a tort. These are:
➢ A wrongful act or omission
➢ Duty imposed by law
➢ Damages

4. Damnum sine Injuria versus Injuria sine Damnum

Damnum sine Injuria means damage or loss without being a legal wrong (damage or loss without
legal remedy). Injuria sine Damnum, on the other hand, means a breach or infringement of a
private legal right but no damage has been done.

Cases
- Gloucester grammar school case [1410] Y.B. Hill 11 Hen, 4 of 47.
- Mayor & Co. of Bradford V Pickles [1895] AC 587

5. Tort versus Crime

A crime is an unlawful act which is an offence against the public and renders the person
guilty of the act liable to legal punishment usually imprisonment. The following are
features of a Crime:
➢ It is an unlawful act or default.
➢ It is an offence against the public.
➢ That person who commits a crime is prosecuted.
➢ If convicted will suffer some sort of penalty.

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 ➢ The penalty imposed is one prescribed by law.
The following are differences between a Tort and Crime:
➢ A tort is a civil wrong while a crime is a public wrong.
➢ A tort traditionally arises from breach of a legal duty, while crime arises from penal code
and other statutes.
➢ A tort only entitles the victim to an action for unliquidated damages while a crime attracts
penal sanctions which are fixed by statute.

6. Tort versus Contract

A contract is simply an enforceable agreement.
➢ Liability under arises from the law while liability under contract arises from an
agreement by the parties.
➢ Damages in tort are unliquidated while damages in contract are liquidated.
Topic – 2: Other Elements of Tort
1. Acts and Omissions
An act is something done or performed especially voluntarily. An Omission, on the other hand, is
failure to do something especially the neglect of duty.
-Stovin v Wise [1996] 3 ALL ER 801
Acts and omissions may either be voluntary or involuntary.
2. Mental Elements
The most notable elements under tortious liability are intention, malice, motive and negligence.
These concepts are interrelated.
➢ Intention means foreknowledge of the act coupled with the desire of it.
➢ Malice means intentional ill-will against a person. See the case of Brommage V
Prosser [1825] B & C 247.
➢ Motive is a willful desire that leads one to act in a particular way. A wrongful act does
not become lawful merely becausee the motive is good see Bradford V Pickles.
➢ Negligence means careless conduct.
3. Independent, Joint and Several Tortfeasors
Sometimes damage may be caused to other person by several wrongdoers, called Tortfeasors,
either independent of each other or jointly, that is acting together. Read the case of Koursk
[1924] p.40 (CA)
4. Capacity
The question of capacity deals with the question relating to who can use and be sued for torts.
Four (4) categories of entities are considered below:
➢ The state. According to section 4 of the State Proceedings Act CAP 71 of the laws of
Zambia, the stateis liable in tort of an individual would. Read section 4(1-5) of state
proceedings Act. By section 12 (1), the attorney- General of the Republic is to be sued as
Defendant in all proceedings against the state, including tort.

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 ➢ Minors. In law of tort, there is no defense of infancy as such and minors are much liable
to be sued for their torts as is an adult. See Gorely V Codd [1967] 1 WLR 19. However,
there is an exception to this rule when it comes to suing a minor in negligence. It is
relevant to determine what the minor ought reasonably to have foreseen. See Mullin V
Richards [1998] 1 WLR 1304.
➢ Incorporated Entities. Once an entity is incorporated, it assumes separate legal
personality that is distinct from its shareholders. Thus, companies may sue and be
sued for torts in their own name except for tort of defamation. See Mayor of
Manchester V Williams [1891] 1 94.
➢ Persons Non Compos Mentis. Just like Minors, persons of unsound mind are
liable to be sued in tort. Insanity may not be a defence in tort unless for torts that
require malice as an essential element. Read the Case of Hansbury V Hansbury
[1892] 8 T.L.R.559.
Topic – 3: Trespass to Person
1. Meaning of Trespass to Person
Trespass to person means a direct or an intentional interference with a person`s body or liberty.
There are three (3) main forms of trespass to person, namely; assault, battery and false
imprisonment and their common element is that the wrong must be committed by `direct means`.

Assault
Assault is an act of the defendant which caused the plaintiff reasonable apprehension of the
infliction of a battery on them by the defendant.
For an action for assault to succeed, the plaintiff must prove the following:
➢ International Act (Fowler V Lauring [1959] 1 QB 426)
➢ Presense of the ability and intention to carry out the threat to inflict bodily harm (Stevens
V Myers [1830] C&P 349)
Assault is an incomplete battery. It is a mere attempt to have physical contact with another
without their consent. Words may or may not constitute an assault (R V Ireland [1998] AC 147)
and the fear by the plaintiff must be a reasonable and founded one (R V St. George [1840] 9 C&
P 483)
Battery
Battery, like assault, is an intentional tort and the two usually of go hand in hand. Assault is an
incomplete battery while battery is a complete assault. Battery is an intentional and direct
application of force to another person (Pursell V Horne [1838] 3 N&P564)
There are two (2) key elements of the tort of battery, namely;
➢ The use of force
➢ Hostile intent

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-Clarke V State [1999]
-Momis V Masden[1952] 1 ALL ER 925
-Cole V Turner (1704) 6 Mod R. 149

False Imprisonment
False imprisonment is the infliction of bodily restraint which is not expressly or impliedly
authorized by the Law. It is an act that directly and intentionally places a restraint upon the
plaintiff’s freedom of movement without lawful justification.
The word `false` is used to signify unlawful, wrongful or erroneous imprisonment. On the other
hand, the word `imprisonment` implies that plaintiff has been deprived of their right to move
freely or go where they wish.
The following are the elements of false imprisonment that must be established in order for one to
succeed at Law:
➢ The restraint must be total.
Bird V Jones [1845] 7 Q3 742
➢ No means of escape.
Mefadzean V Construction
Forestry [2007] VSCA 289
➢ Detention must be unlawful.

2. Defences

The following defences are available to the defendant in an action for false imprisonment:
➢ Consent
➢ Necessity
➢ Self-defence
➢ Lawful Arrest

3. Remedies
The following remedies are available to the plaintiff:
➢ Damages
➢ Injunction
➢ Self-help

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Topic – 4: Vicarious Liability
1. Meaning of vicarious Liability
Vicarious Liability simply means that one person takes the place of another so far as Liability is
concerned because of ones`s relationship to another (launcbury V Morgans [1971]2 QB 245).
It is not a distinct tort but rather a process by which one person is held liable for the torts
committed by another.
2. Special Relationships
As stated above, vicarious liability is premised on the existence of a special relationship between
the parties, that is one who has committed a tort, and the one who is to be deemed liable for the
tort of another. The following are relationships of particular importance in as for as this doctrine
is concerned:

a. Employees
The principle here is that an employer is liable for damage caused to another by their employee
while that employee was carrying out duties of their work.

Who is an employee?
- Read Employment Act No.3 of 2019 for definition of an employee.
- In Sadler V Henlock (1835) 4 E&B the Court stated that an employee is one who is bound to
obey Lawful orders given by the employer as to the manner in which work shall be done.
- Section 3 defines an employer.
Common Law Tests for Determining an Employment relationship.
The following are Common law tests:
➢ Control test
A person is said to be an employee if the employer controls that person in the doing
of their work. See Yemens V Noakes.
➢ Integration or Organisation test
Under this test, the question is whether or not the person was an integral part of the
organisation despite them doing work that the employer does not control for lack of
skill, such as surgeon at a hospital or pilot at an airline and other specialists. See
Cassidy V Ministry of Health [1951] 2 KB 343
➢ Multiple test
This test takes into account all the relevant factors to determine whether one is an
employee or not. It is `multiple` because it takes into account all the other factors that
may be left out by the two tests stated above (Merssey Docks V Coggins [1947]
AC1.

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Course of Employment
It is not enough to prove that one is an employee, but the plaintiff must further demonstrate that
the acts complained of were committed during the Course of employment.
- Board V Landon General Omnibus Co. [1900] 2 QB 530 CA
- Lumpus v London General Omnibus Co. [1862] 1 H and C.
The salmonmd Test
An act will be deemed to be done in the course of employment if it is:
➢ A wrongful act authorized by the employer; and
➢ A wrongful and unauthorized mode of doing some act authorized by the employer.
The Test in Lister V Hesley Hall Ltd [2001] 1 AC 215
This test refined the above test. The proper approach to the course of employment is no longer
to ask the question whether the acts were modes of doing authorized acts in the course of
employment but the question is whether the tort is closely connected with the employment that it
would be fair and just to hold the employer liable.
It is important to note that the issue of course of employment is a question of fact and it is
necessary to analyse all surrounding circumstances in order to reach a conclusion.
b. Agents

A principal is liable for negligence of their agent while acting in the course of the principal`s
authority. See Heatons transport V Transport [1973] AC 15.

c. Partners

Partners are vicariously liable for torts committed by their co-partner acting in the ordinary
Course of the firm’s business as agents, firstly, to the firm; and secondly to one another. See
Hamlyn V Houston and Co. [1903] 1 KB 81.

Each of the partners is liable for the tort of the other partners if committed in the ordinary course
of the firm`s business, but not for torts committed by one of the partners outside the scope of
their express or usual authority as a partner.

d. Independent Contractors
An independent contractor is different from an employee as they are engaged under a contract
for services as opposed to employees who are engaged under a contract of service. An
independent contractor is a person who carries on business independently on their account and
contracts to do certain work, which they decide for themselves on how it should be done. See
Marketing Investigator Ltd V. Minister of Social Security [1969] 2 QB773

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As a general rule, an employer is not vicariously liable for the negligence of an independent
contractor, that independent contractor’s employees or their agents in the execution their contract
(Pickard V Smith [1861] 10 CB and Hardakens V District Council [1896] 1 QB335).
There is an exception to the above general rule. This may arise where an employer contracts with
an independent contractor to do some act, which they are not entitled to do, or to perform. If this
happens, then an employer is liable for negligence of the independent contractor.
e. Children
As a general rule, a parent is not liable for negligence of their child unless that child is their
servant or agent or partner (North V Wood [1914] 1 QB 269; Donaldson V McNiven [1952] 2
ALL QR961). Parents are liable for their negligence and they are under a duty to exercise such
control over their children, as a prudent parent would. The age of the child is a material factor to
be taken into account when deliberating on this. See Bebee V Sales [1916] 1 WLR 19 and
Newton V Edgerly [1959] 1 WLR 1031
3. Basis for Vicarious Liability
The basis for vicarious liability is that it provides an avenue for victims of tortious acts to
commence actions under tort and obtain compensation for any wrongful act or omission
committed by agents, employees and partners in the course of agents undertaking assignments to
fulfil their principal`s interest. This also protects the agents to suffer liability for wrongs
committed in the truthful pursuit of their principal’s interests.
The master or principal can seek compensation from their servant for any loss suffered in the
atonement of their wrongs to third parties. Thus, the liability of the servant is ongoing and does
not end by the fact that their master ids held responsible for their acts.
Topic – 5: Strict Liability
1. What is strict (absolutely) Liable?
Strict Liability is liability without fault (Goodwin V Reilly, 1Dist.176). It is tortious liability
imposed upon a defendant without the need for the plaintiff to prove intent, fault or negligence
on the defendant’s part. Liability is established provided that the plaintiff proves that it was the
defendant’s thing that caused the damage.

2. Liability for Dangerous thing

What are dangerous things?
Dangerous things are those things which are dangerous in themselves, irrespective of the use to
which they are put or the circumstances of their use. Whether or not a thing is dangerous is a
question of Law (Blacker V Lake and Elliot Ltd [1912] and Read V J. Lyons and Co Ltd
[1947] AC 156).
Thus, the following things have been held to be dangerous things by courts:
➢ Water artificially accumulated
➢ Sewage
➢ Fire

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 ➢ Gas
➢ Electricity
➢ Poison
➢ Explosive
➢ Chemicals
➢ Acid
➢ Oil
➢ Paraffin
The Rule in Rylands V Fletcher
The origin or the modern rule of liability for the escape of dangerous things in this case of
Rylands V Fletcher [1868] Le 3HL330 which arose as a result of the escape of water into the
plaintiff’s mine caused to be constructed upon land. Black burn, J opined that:
We think that the rule of Law is that the person who for his own purposes brings on his land and collects and keeps
anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie
answerable for all the damage which is the natural consequences of its escape. He can excuse himself by showing that
the escape was owing the plaintiffs defaults; or perhaps that the escape was the consequences of Vis major or the act of
God.

In order to succeed, the plaintiff must prove the following:

➢ Things brought on land
The plaintiff has to show that the defendant brought unto their land the things that caused
mischief as there is no liability for things naturally upon land (Giles V Walker [1890]
LR 24 QBD 656). However, if it can be shown that the defendant was responsible for the
escape of something that was naturally on their land, then the defendant would be liable
( Pontardawe V Moore-Gwyn[1929] 1 ch 656)

➢ Likely to do mischief
For the rule to apply, it must be shown that the damage of the relevant type was
foreseeable as the result of an escape. The defendant, will however, be liable
notwithstanding that they had taken all responsible care and skill to prevent the escape
(Cambridge water Co V Eastern Countries Leather PLC [1994]2 WLR 53 HL

➢ Escape
The defendant is not liable unless there is an escape of the thing. Thus, it is essential for
the plaintiff to prove that the thing escaped from the area outside the occupation and
control of the defendant.

➢ Non-natural use of land

See Ricards V Lothian [1913] AC 263. And LMS International Ltd V Styrene Ltd
[2005].

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 Non-natural use means some special use bringing with it increased danger to others and
must not merely be the ordinary use of land or such a use as is proper for the general
benefit of the community.

➢ Damage
The plaintiff must prove damage or loss suffered.

Who can sue under the Rule?

Anyone who suffers damage can sue.

Who can be sued under the Rule?

The following can be sued under the Rule:

➢ The owner of the Land

➢ The occupier of the land
➢ The owner of the dangerous thing

3. Liability for Dangerous Animals

There are two (2) category of animals that is fierce natural and mansuetae. The first category
includes animals belonging to a dangerous species; for example, lions, tigers, wolves etc. The
second comprises animals belonging to non-dangerous species such as dogs, cows, horses, etc.
The liability for damage caused by animals in both categories, is however, strict.

Read the case of Behrens V Bertram Mills Circus Ltd (1957) 1 ALL ER 583

4. Defences
The following defences are available under the two heads of strict liability in tort;
➢ Act of God
➢ Default of the plaintiff
➢ Consent of the plaintiff
➢ Independent act of third party
➢ Statutory authority
➢ Common benefit
5. Remedies

The following remedies are available to the plaintifts under strict liability ;
➢ Damage
➢ Injunction

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Topic - 6: Occupier`s Liability

1. Conceptual framework

Occupier

This is a word of convenience which simply denotes a person who has a sufficient degree of
control over premises to put them under duty of care towards those who come lawfully on the
premises (Wheat V E. Lacon Co. Ltd (1996) AC 552).

An occupier is the person in control of the property and ownership is irrelevant unless the owner
is also in occupation. This person has immediate control and supervision of who comes on to the
property. Control is thus decisive factor and it is immaterial that the occupier has no interest in
the property (AMF International Ltd V Magnet blowing Ltd [1968] 2 all 789)

Premises

Premises in respect of which a duty is owed are not restricted to building houses and other real
property but include objects upon the land as well which the visitor has been invited or permitted
to use (Wheeler V Copas [1981] 3 ALL ER 405)

Thus, premises include:

➢ grandstands
➢ electricity pylons
➢ aircraft
➢ railway carriages
➢ road carriages
➢ lorries
➢ trucks
➢ ships
➢ ladders
➢ lifts etc

Visitor

Invitees and licencees at common law are all regarded as visitors and these visitors may be
invited either expressly or impliedly. In terms of sections 3 and 4 of Occupiers` Liability Act, the
following are regarded as visitors;
➢ Persons entering under a contract
➢ Persons entering for the purpose of the occupier`s business or for a
business where both mutually benefit (occupier and invitee)

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 ➢ Persons entering the premises with the permission of the occupier
(Licencee)

2. Liability

Liability of an occupier is only owed to lawful visitors who come to the premises under the
authority and permission of the occupier. It follows, as seen under section 3 and 4 of the
Occupiers` Liability Act that the occupier owes a duty of care to all the lawful visitors under
their premises. The duty is to ensure that the visitor is reasonably safe and not a duty to make the
premises safe.

The following are issues of interest when speaking on the liability of an occupier in relation to
visitors:

Children
An occupier owes a higher duty of care to child visitors than the one owed to adults (section 3
(3) (a) of the Occupiers` Liability Act). In the case of Hawkins V Coulsdon and Purley urban
District [1954] 1 All Eng.LR 97, the Court stated that:

The difference between an adult visitor and a child visitor is that the child will meddle where an adult will not and so
what is safe for an adult may not be safe for a child.

The same care exhibited in adults may not be enough to avoid Liability for breach of duty of care
in children (Glasgow Corporation V Taylor [1922] AC 44).
Specialists (or Skilled) Visitors
The occupier may not be liable for injuries suffered by a skilled visitor unless the occupier acted
unreasonably in the leading up to the damage. Thus, it may be said that the duty owed to
specialist visitors is the opposite of that the duty owed to children (General Cleaning
Contractors Ltd V Christmas [1953] AC 180).
Warning
Generally, a warning sign of the danger discharges the liability of an occupier. This is where the
occupier warns their visitors of the particular danger, provided that the warning is sufficient to
enable the visitor to be reasonably safe. The rules change when dealing with illiterate and
children visitors (Bunker V Charles Brand & Son Ltd [1969]2 QB 480; Staples V West
Dorset District Council [1995] 93 LGR 536).
Exclusion Clauses
Common Law has allowed an occupier to exclude and limit their liability to non. contractual
entrants to their premises. This is solid provided that the occupier informed their visitor by
notice, which must be clear and unambiguous, of the exclusion clause or limitation of liability.
Above all, reasonable steps must be taken to bring to those visitors` attention that exclusion or

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limitation of liability (Ashdown V Samuel Williams and sons Ltd [1957] 1 QB 459; white V
Blackmore [1972]2 QB651).
Independent Contractors
There is no liability to an occupier for faults of Independent Contractors if the occupier acted
reasonably in entrusting work to that independent Contractor. In order to ride on this and avoid
liability, the occupier has a duty to check on the competence of the independent Contractor. If
they have not, it can be seen that they acted unreasonably (Ferguson V Welsh [1987]1 WLR
1553; Bottomley V Todmorden Cricket Club [2003] EWCA).
Trespassers
A trespasser is one who wrongly enters on land in the possession of another and has neither right
nor permission to be there. Occupiers owe no duty of care to trespassers (Robert Addie V
Dumbreck [1929]AC 358). The position of the law both at common law and statute is that only
lawful visitors are owed duty of care (Herrington V British railways Board [1972]AC 877).
3. Defences
The following defences are available under Occupiers` Liability:
➢ Contributory negligence
➢ Assumption of danger
➢ Assumption of risk
➢ Presence of exclusion clause

Topic – 7: Death in Relation to tort

Death of a person may affect tortious liability in two ways: it may extinguish liability for tort; or
it may create liability in tort.

1. Death as extinguish Liability

The rule in Baker V Bolton [1808]1 Camp.493
The rule stated that in a Civil Court the death of a human being cannot be complained of as an
injury. It followed that at Common Law, it was not possible even for a spouse to recover damage
for the death of their spouse, a parent for death of a child or an employer for that of an employee
(Clark V London General Omnibus CO. [1906] 2 KB 648).
Actio personalis moritur Cum persona (Personal action dies with a person)
This rule provided that as a general rule, death of either part extinguished a cause of action in tort
against the other. It mattered not whether it was a potential plaintiff or the potential defendant
who had died. The main exception to the rule arose where property had been appropriated by a
deceased person and added to their estate, an action could be sustained by the owner against the
deceased’s personal representative.
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2. Death as Creating Liability

Fatal Accidents Act 1846-1908

This Act departed largely from the Common Law positon that an action died with the death of
one of its parties. The main purpose of this Act is to provide for maintenance of relatives and
dependents of the deceased who have been deprived of maintenance by that death. Section 2 of
the Act allows dependants of the deceased to recover by the way of damages the value of their
dependency. What is recovered is limited to the loss of the pecuniary benefit arising from the
relationship with the deceased which they could have enjoyed had the deceased continues to live.

Law Reform (Miscellaneous Provisions) Act Cap 74 of the laws of Zambia

Section 2 of this Act provides for survival of causes of actions beyond the death of a party.
However, this action can only be brought by and in the name of the deceased`s personal
representative and there is no right of action unless the deceased themselves could have sued had
they been merely injured and not killed by the tortseasor`s actions (Bernard Chilunda V
Zakaria Chinanzi [1979] ZR 195 (HC)).

THE END!!!

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