GNEXT LAW CHAMBERS

UGANDA CHRISTIAN UNIVERSITY.
NAME: OCHOO RONALD

REG.No.

S10B11-604

COURSE:

BACHELOR OF LAWS

COURSE UNIT:

NAGLIGENCE AND STRICT LIABILITY

LECTCURER:

Mrs. KISSEKA LYDIA

TUTOR:

Mr. ARINAITWE PATSON

DUE DATE:

07- WED- 2012

established the principle of strict liability for a loss as a result of escape. 2012 Resolving legal issues in the matter of David Dumba. Blackburn J added a limitation on liability 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 in 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. Gnext Law Chambers Associate Counsel. thus contamination of water from a spring half a Kilometre in Kinawataka village. Whether or not Mogas Petroleum Limited is strictly liable under rule of Rylands Vs Fletcher The case of Rylands v Fletcher (1868) LR 3 HL 33O. The case went through four courts and it became a starting point under liability. with high concentration of a chemical with PH of 10. Moses Golola. on 14th February 2012. the mine was filled with water and the plaintiff sued in negligence. After using the water. a company engaged in petroleum importation. ISSUES: (i) Whether or not Mogas Petroleum Limited is strictly liable under rule of Rylands Vs Fletcher (ii) Whether or not Dumba. In Charing Cross Electric supply v Hydraulic Power Company. the company was liable under the rule for the power burst which caused flood in the . Mogas had not carried out any environmental impact assessment as to the knowledge of the company secretary and NEMA too had not assessed before the selection of the containers by Mogas. there was a leakage of two underground cylinders and a tanker. During the construction. It’s essential that the thing be brought on the land by an owner or occupier for his own purposes. Mogas blames the heavy down pour of rain for causing the damage to its plantation. On appeal to the House of Lords. Semakokiro.5 and magnetic particles used in storage of petroleum products which were toxic and very harmful. Semakokiro and Goloa have an action under nuisance (iii) Whether or not NEMA and Mogas Petroleum Limited are liable under negligence (iv) Whether or not there are any possible defences and remedies LAW APPLICABLE: (i)The Constitution of the Republic of Uganda of 1995. storage and supply in Uganda. they stumbled on mine shafts of Fletcher’s mines which connected to Ryland’s land. In the process of storage. BRIEF FACTS: The defendants are Mogas Petroleum Limited. Rylands employed private constructors to build a reservoir on his land. In this case. UEB was liable for the shock that befell the plaintiff after stepping on the dangerous cables that UEB had left hanging. In the case of David Dibya v Uganda Electricity Board [1980] HCB 119.For a case to fall under the rule in Rylands v Fletcher. Ochoo Ronald Ross March 7. Golola and David Dumba were hospitalized with vomiting and nose bleeding and Dumba’s cabbage plantation dried up after using the water to irrigate it.GNEXT LAW CHAMBERS TO: FROM: DATE: RE: Managing Partner. and Semakokiro against Mogas Petroleum Limited and NEMA. the following must be established: A) Bringing on the land. (ii) The National Environment Act Cap 153 (iii) Case Law DISCUSSION / RESOLVING ISSUES: i.

the chemical particles and gas which injured the people and their crops escaped from the tanker and the cylinders which ushers in the principle. Therefore escape is an essential element. The question of something being a non-natural use is a question of fact and law which involves ascertainment and assessment of relevant facts and identification of the content of the legal concept of it. In Cambridge Water Company v Eastern counties Leather plc [1994]2 AC 264. for a reasonable man. there must be an escape from one tenement to another and secondly and a claim cannot include a claim of death or personal injury since such a claim cannot relate to any rate e) Foreseeability.” According to the above statement. where Lord Moulton stated that “it’s not every use of which land is put that brings into play that principle. Mogas petroleum limited brought onto the land two underground cylinders and a tanker whereby the gas in the cylinders was toxic and very harmful to human beings and crops illustrated through the way the cabbage plantations dried after it was irrigated and the people vomiting and nose bleeding after taking the water. there is foreseeability in the likeliness part of it. this should have called for care to ensure no escape to cause damage. In Wagon Mould (2). it was held that foreseeability of harm of the relevant type by the defendant was a prerequisite for the recovery of damages under nuisance and the Fletcher rule. they were not naturally there and they brought with them danger of gas when it escaped since it contaminated water used by the community and people suffered. It was illustrated that the claim in nuisance or the rule under Rylands v Fletcher can arise if the elements complained of take place wholly on land for single occupier.GNEXT LAW CHAMBERS large part of London. In Reads v Lyon. In Rickards v Lothian expanded on the element of likely to do mischief where Lord Moulton reviewed the point that the use of land must be special use bringing with it increased danger to others and not merely the ordinary use of land.” The thing brought onto the land shall not occur naturally there. As a matter of fact. not of the ordinary as it was illustrated in the case of Transco plc V Stockport MBC [2004] AC 1. One has to foresee risk to be able recover damages. Therefore. In relation to the above problem question. which he knows to be mischievous and he should at his peril keep it there…or answer for the natural and anticipated consequences. the distance between the spring and where the cylinders were installed was half a kilometer.” Hence in the above situation. the chemical partials and gas that was stored in containers was capable of causing danger in case of an escape. In the above situation. the cylinders were brought onto the land. This was defined in Rickards v Lothian [1913] AC 156. Dangerous things to be foreseen are not considered dangerous per se but those which are in relation to the type of damages. Mogas should have foreseen this in the first place. The thing must be capable of being dangerous upon entering the neighbor’s land. Basically there should be an escape of something dangerous. lord Goff quoted Blackburn J’s statement in the Transco case focusing on the words “likely to do mischief if it escapes. Mogas Petroleum Limited is liable since they brought onto the land . In relation to the above. It was defined by Viscount Simon in Reads v Lyons [1945] KB 216 as “escape from a place which the defendant has occupant of or control over to a place which is outside his occupation or control. c) Things likely to do mischief. d) Escape. Mogas limited should have fore seen the likely of damage in case of an escape since chemical particles are always dangerous if not handled with care. The thing needs not to be dangerous in itself but it must be likely to cause damage should an escape occur. b) Non-natural user. It must be some special use bringing with it increased danger to others and must not merely be ordinary use of land or such a use as is proper for the general benefit of the community.

For a person to prove unreasonable there should be prove on the extent of the harm and the nature of locality. utility of the defendants act and abnormal sensivity. In Haynes V Harwood (1934) ALLER 103. Limited (1991). They should have foreseen the risk and put into consideration the masses that lived in that location and used the spring as the source of water. Basically. Under this foreseeability is established as to the fact that they built the concrete wall owing to the fact there could be a spillage in the near future or in time to come. However. Moses in this case can prove what happened to him after taking the water. where any private person is injured in some way peculiar to himself that is if he can show that he has suffered some particular or special los over and above the ordinary inconvenience suffered by the public at large. an act that has caused nuisance. to give a cause of an action for negligence an act must . it was affirmed that the essence of private nuisance is a wrong committed by one land owner against a neighboring land owner so that to succeed in a claimant must have a sufficient proprietary interest in the land affected. Negligence as a tort is breach of a legal duty to care which results in damage to the claimant. Semakokiro does not have a preparatory interest and therefore he cannot sue under nuisance iii. This is an unreasonable interference with the public right to property. smoke. In Esso petroleum co. to inflict injury and legally it is an activity which duly interferes with the use of land. then he can sue in tort of public nuisance. one has to prove particular damage. In relation to the above. In Cambridge case. Ddumba. Whether or not Dumba. In this case. Private nuisance as per Winfield and Jolowiz is unlawful interference with a person’s use or enjoyment of land or some rights over or in connection with it. He has peculiar interest in the land. Moses can sue under public nuisance. In Gillinghams Borough council v Medway Dock co. it was held the foreseeability is a prerequisite for liability and a defendant will only be liable for the reasonably foreseeable consequences of the unreasonable user. The general rule is that a private person cannot bring an action for public nuisance. In Hunter v Canary wharf Limited [1997] AC 655. ltd v Southport Corporation. can sue under private nuisance for his cabbage plantation that dried after using contaminated water to irrigate. stench. The general principle was laid down in Thompson swab v Ostaka [1956] WLR 335 that title is the basis of an action in nuisance. There is need for being reasonable under private nuisance through it varies according to ordinary usage of people living there. The plaintiff must also prove that the nuisance emanated from the defendant’s property. This therefore does not absolve them of the liability that they owe to the public and the community around the place of its location. Semakokiro and Goloa have an action under nuisance Nuisance means to do harm. For one to plead private nuisance. And the interference by the defendants must be both substantial and unreasonable. it was defined as that branch of law of tort closely concerned with protection of the environment. the overt act was the escape of toxic chemicals from the cylinders causing damage to people’s water thus injuring their health and crops. Private nuisance includes smell. private and public. there must be an overt act. it was stated that public nuisance is primarily concerned with the effect of the act complained of to the sufficient number of the public.Whether or not NEMA and Mogas Petroleum Limited are Liable under negligence. This was from the cylinders that were brought onto the land by Mogas limited. noise among others.GNEXT LAW CHAMBERS the dangerous thing (Oil and the chemicals) which escaped and caused damage to the community. ii. Nuisance is in two kinds that is. the being hospitalized with vomiting and nose bleeding which was not suffered by every member of the society making him vulnerable.

Mogas is liable on behalf of their secretary since she was acting in the course of her duty. In determining whether a duty of care was breached. Mogas owed a duty of care to their neighbors in relation to the neighbor principle while NEMA had a statutory obligation to the masses to ensure their safety as per section 19(3) and 20 of the National Environmental Act. Causation is related to whether the defendant is liable for the consequences of his negligence while remoteness deals with the liability for all the consequences caused by the defendants. The escape has to be caused directly by natural causes without human aid. there has to be injury caused by the defendant’s breach of duty of care and this is linked to causation and remoteness of the damages. c) Consequential damage. basing on the neighbor principle. Had it not been for the rain. social utility of the fact and practicability of the precautions. Basing on the above discussion on negligence. In donoghue. there was breach of duty by the decomposing snail that was found in the drink. there was breach of care. they owed him care and more so under the neighbor principle. in the neighbor principle. by the want of care that is negligence of which he can avail himself as a cause of action. Lord Atkin in Donoghue v Stevenson started that negligence requires the existence of a duty of care which is breached by the defendant and causes damage to the claimant that is not too remote a consequence of the breach. This is illustrated by the heavy down pour that washed away the concrete foundation separating the company land from the adjacent land neighbouring Kinawataka village. NEMA and the secretary of Mogas were liable but basing on vicarious liability. This occurs where a person falls before the standard of care appropriate to the duty he owes. NEMA and Mogas limited owe Semakokiro a duty of care since he is in the location by the time of the injury. The duty need not be expressly directed to the plaintiff. The establishment of the existence of a duty of care was illustrated by Lord Atkin in Donoghue v Stevenson [1932] AC 532. Mogas and NEMA breached their duty owed to their neighbors and they should have foreseen that this was going to cause damage to their neighbors. A neighbor is a person who is so closely affected by our deeds that we should take care to avoid harming him and so under the neighbor principle you must take reasonable care to avoid acts which you can reasonably foresee would injure your neighbor. Proximity basically looks that the closeness and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act as was stated by Lord Atkin in Donogues case. The question what amounts to duty of care depends on the court’s assessment of what’s fair. There is proximity in this instance. Under negligence. Under negligence. if it includes him as one of the classes affected. one looks at the foreseeability of harm. magnititude of risk. there would not . And so since semakokiro used the water. people of kinawataka suffered damaged illustrated by the drying of crops and people falling sick in that they are vomiting and nose bleeding. Whether or not there are any possible defences and remedies To begin with the first defence that Mogas limited can raise is the defence of an act of God. thin skull rule. just and reasonable and t reasonably foreseeable and proximity. a) Duty of care.GNEXT LAW CHAMBERS be the neglect of some duty owed to the plaintiff. A person is only liable in negligence if he is under a legal duty to take care so it’s not in every situation that a person is held liable. Relating to this. b) Breach of that duty. The standard of care is what is appropriate to a reasonable man. iv.

The corporation constructed a concrete paddling pool for children in the bed of a stream and obstructed the natural flow of the stream. Tennent v Earl of Glasgow (1864) 2 M (HL) 22 at 26-27)was defined as an event which 'no human foresight can provide against. owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another. General Jones.GNEXT LAW CHAMBERS have been the contamination which led to damage. It was held that the extraordinary rainfall did not absolve the corporation from responsibility and that they were liable in damages. They can be .Therefore Mogas has a possibility and a chance of having this defence owing to the fact that their concrete wall was washed away after a heavy downpour as per the facts.Ltd (1936)AC 108. An act of God per Lord Westbury. In Burnie Port Authority v General Jones Pty Ltd. Owing to a rainfall of extraordinary violence the stream overflowed at the pond and damaged the property of the plaintiffs. the duty varies according to the magnitude of the risk involved. In Allen v Gulf Oil [1981] AC 1001. causation of the suffered injury among other things. In Northwestern Utilities Ltd v London guarantee and Accident Co. In Nichols v Marsland (1876) 2 ExD 1. In awarding damages. the privy council accepted the defences of act of God and the third party. A large quantity of frozen vegetables stored by General Jones in the cold rooms was ruined in the fire. In 1979. In “nuisance is authorised by statute if it is an inevitable consequence of an activity that is expressly or impliedly authorised by statute” . The defendant was not liable for the damages caused. Where the person is outside the defendant’s premises. but held the defendant liable for negligence because the risk involved was so great that the a high degree of care was expected of them. Nichols v Marsland was doubted by the House of Lords in. Thus Mogas should not have been negligent with its activities concerning the oil more so it has not even taken the initiative to ensure that it carries out the environmental Impact assessment thus making it operate more of illegally and thus not absolved of its duty and obligation to the surrounding people of Kinawataka. therefore making it liable and the defence failing if so. the Authority was carrying out work to extend the building. occupied three cold rooms in the warehouse building under an agreement with the Authority. alternatively. They should have taken appropriate action to prevent or rectify the situation and so Mogas Ltd should be held liable for not taking care to prevent the leakage and any other damages attached to it. Mogas Limited may also plead the defence of statutory authorisation. and of which human prudence is not bound to recognise the possibility' . Greenock Corporation v Caledonian Railway [1917] AC 556. The Posible remedies available to the plaintiffs The plaintiffs can be awarded damages for the loss they suffered that is Ddumba losing his cabbage plantation and their being hospiltalised after taking water that was contaminated at the risk of Mogas Limited. At the time of the fire. Exceptionally heavy rain caused artificial lakes. A statute may require a person or body to carry out a particular activity. statues may include a nuisance clause imposing or preserving the liability of nuisance. and not a result of a failure to take necessary care. a canning company. However. Liability under Rylands v Fletcher may be excluded upon the interpretation of the statute.” Therefore in accordance to the above facts oil needed very strict and restrictive care to be taken by Mogas as to its maintenance and storage this is because of the classification of oil as Hazardous under section 55 of The National Environmental Act cap 153. a waterfront warehouse owned by the Authority was destroyed by fire.. 1015 where the odour was said to be inevitable act of fulfilling the statute. It was stated that “A person who takes advantage of his or her control of premises to introduce a dangerous substance or to carry on a dangerous activity.government intervening to subsume the right of enjoyment of ones land in favour of public works – defendant still has to establish that the nuisance acts are an inevitable result of the statutory orders. the courts looks at many things like future expectations of the plaintiffs. bridges and waterways to be flooded and damage adjoining land. However as per the case of Mogas note should be taken that statutory authority can only succeed where the right procedures have been followed owing to the establishment of the body that is as demanded under section 19 (1) of the National Environmental Act cap 153.

Juridical Review (1998) 201.A. . In this case we shall tackle the case on a general basis owing to the fact they were all affected to the extent that they all can recover under general damages this was stated in the case of CONCLUSION: In conclusion therefore Ddumba. one has to indeed prove loss to be awarded special damages. Golola and Semmakokiro are entiltled to damages as per the statute and furthermore under section 56 of the National Environmental Act cap 153. 216–7.GNEXT LAW CHAMBERS awarded special damages if they prove personal injury in nuisance as it was emphasized in Hunter v Canary Wharf (1997)2 W. It should be noted. that there can be no liability for personal injury under the narrow rule in Rylands v Fletcher. NEMA as a public authority has failed on its duty and mandate to ensure that the public has confidence in its actions and duties and for that purpose it’s has to meet the cost of ensuring that the place is free of the foul smell and also ensure clear environmental.L. Warner. for example Ddumba who lost his cabbage plantation after irrigating it with contaminated water. they have to be compensated and Mogas in this circumstance has to pay the cost of treatment that could have accrued and also pay for the restoration of the environment damaged and the plants of the people.R 689. management strategies. although such liability can arise under the wide rule.) General damages can also be awarded by court for everyone who has an action.( K.

sweet and Maxwell. July 2004 2. 18th Edition. 3) Tony Weir. Uganda 11Review of EIA Application in Uganda. Warner. Oxford Legal Journals of Legal Studies Vol 24 of No 4 of 2004 BOOKS 1) Chris Turner. TORT. A CASE BOOK ON TORT.John Murphy.V. London STATUTES 1) The Constitution of The Republic of Uganda 1995 2) The National Environmental Act Cap 153 .A.2nd Edition. UNLOCKING TORT LAW.GNEXT LAW CHAMBERS REFFERENCES: Journals 1.Justin Ecaat.H Rogers. 2004. 2) W.K. Juridical Review (1998 3. NEMA. sweet and Maxwell. WINFIELD AND JOLOWICZ.

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