MPM 553

TORTIOUS LIABILITY OF
PROCUREMENT

COURSE OUTLINE
Nature of Tort
Trespass
Negligence

Breach of Statutory Duty

Rylands v. Fletcher Rule
Nuisance
General Defences and Remedies

Reference Books

1. Curson, L. B., 1998, Dictionary of Law, Fifth Edition, Financial Times

Pitman
Publishing,

2. Bradgate R, 2000. Commercial Law, Third Edition, Antony Rowe Ltd.

3. Brazier, M. et al, Street on Tort, 10th Edition

4. Hodgson, J. et al, Blackstones Law of Torts

5. Rogers, W. V. H., Winfield and Jolowicz on Tort, 14 th Edition

6. Lewis, J. R., 1976. Law for the Construction Industry, The Macmillan
Press Limited

7. Uff, J. 1999. Construction Law, 7th Edition, Sweet & Maxwell Limited

8. Bondzi-Simpson, P. E. 2002. Law of Contract, Excellent Publishing and Printing

9. Furmson, M. P. 2001. Cheshire & Fifoots Law of Contract; 14th Edition;

10. Bradgate R, 2000. Commercial Law, Third Edition, Antony Rowe Ltd.

11. Willis, C. J. et al. Practice and Procedure for the Quantity Surveyor- 10 th
Edition, Oxford Blackwell Scientific Publications

12. Brobbey, S. A. 2008. The law of Chieftancy in Ghana, Advanced Legal

Publication,

13. Coe, J. J. Jr. 1997. International Commercial Arbitration: American Principles

and Practice in a Global Context

Definition of Tort
The word tort is derived from the Latin tortus
meaning crooked or twisted.
French= tort meaning wrong.
English law, tort denotes certain civil wrongs
Tort may be defined as a civil wrong independent
of contract, or as a liability arising from breach of
a legal duty owed to persons generally.

AIMS OF LAW OF TORT

to protect interests in the person, land, goods
and reputation of another
to award damages for invasion of these
interests.
It may not cover interests in economic, family
relations etc.

Remedy for tort

The main remedy is compensatory damages to
compensate the victim of the wrong.
The courts, however, have power to award
punitive or exemplary damages in special
circumstances.

Tort and other Legal Actions

Batty v Metropolitan Property Realisation [1978]
2 WLR 500
A purchaser of a defective house brought an
action against a developer for breach of a
warranty that the house was fit for habitation and
for negligence in having the house constructed on
unsuitable ground.
held ; an action by the client against his Architect
or engineer will generally be brought in contract

Importance of law of Tort in C. I.

the operations within the industry involve great
risk of dangerous situations.
The major areas of tort that affect procurement
Trespass
Negligence,
Doctrine of Rylands v Fletcher,
Breach of Statutory Duty and
Nuisance,

Trespass
defined as an act affecting ones personal liberty
or property without any invitation of any sort or if
aware, is objected to.
It may be to
-Person
-land including building
-goods including construction materials and
equipment
Trespass is actionable per se (without proof of any
damage).

Areas of Trespass
The usual topics treated under Trespass are:
-battery,
-assault
-false imprisonment
-Intentionally causing Physical Harm
-malicious prosecution

Trespass to Land
A trespasser to land has been defined as
one who goes on to the land of another without
any invitation of any sort and whose presence
is either unknown to the proprietor, or, if
known, is objected to practically.
Trespass to land is however committed in three
forms:

Whenever a person intentionally or negligently;

Enters upon the land of another
remains on the land of another;
causes to be placed or thrown any material
object upon the land of another,

Trespass to Goods
is the intentional or negligent interference with
the possession of another persons goods.
The interference must be direct and forcible
(though a mere touching may be trespass).

NEGLIGENCE
Means- heedless or careless conduct, whether in
omission or commission.
Connotes - the complex concept of duty, breach
and damage suffered.
There must be the existence of DUTY,
BREACH and CAUSATION.

CONCEPT OF DUTY OF CARE

The plaintiff must establish that the defendant owe a
duty at least to someone to act
Or refrain from acting.
The defendant had conducted himself a manner that
that duty is owed to the plaintiff himself personally.
In some circumstances such economic loss the law
may deny duty

FORESEABILITY AND OMISSIONS

It is said that one must take care not to cause injury
to others
there is no general duty to act for the benefit of
others
the rule is that you must not harm your neighbour,
not that you are required to save him.

PROFESSIONAL NEGLIGENCE
Consultants and professionals are expected by law to
display reasonable competence in the delivery of
services.
The duty of care required is based on the contractual
agreement between the two.
The duty of care may arise concurrently in tort and
contract. The Professionals Act

PROFESSIONAL NEGLIGENCE
CONTD
The law experts the professional to display an
average amount of competence
An unqualified person who has experience and holds
himself out as a qualified person would not be excuse
of his negligence.
A higher standard is required from an experienced
consultant than a young surveyor.

DOCTRINE OF RES IPSA

LOQUITUR
The plaintiff should prove the negligence of the
defendant by specific acts or omissions
The could be hardship in plaintiff proving the
defendant is guilty.
This hardship is avoided by the development of the
doctrine Rea Ipsa Loquitur

Three conditions must be fulfilled before the

principle or maxim is upheld
the thing causing the accident must be under the
control or management of the defendant
the accident must be such as ordinarily cannot
occur without negligence.
there must be absence of explanation of the cause
of the accident by the defendant.

OTHER ASPECTS OF NEGLIGENCE

Particular situations of negligence affecting the
construction industry include
Occupiers Liability
Employers Liability
Liability for goods
Negligent Misstatement

OCCUPIERS LIABILITY
An occupier may be defined as anyone who
owes sufficient degree of physical control and
possession over property.
A licensee may be a person who is on the
occupiers premises either by an express or
implied consent of the occupier.

OCCUPIERS LIABILITY CONTD

Duty of Common Humanity
common law the occupier owes the trespasser no
duty of care.
The exist the duty of common humanity
This duty arises when the occupier is aware or is
believe to be aware that danger exist.
The occupier can offer some reasonable protection
to the trespasser

OCCUPIERS LIABILITY CONTD

Children
some special points which should be noted:
that children are less careful than adults.
What may be a warning to an adult may not be
so to a child
With child trespassers on his land the occupier
must prevent the recurrence of the trespass

OCCUPIERS LIABILITY CONTD

Independent Contractors
Where a danger is caused to a visitor by an
independent contractor employed by the occupier

the occupier shall not be answerable for the danger

EMPLOYERS' LIABILITY
Employer's common law duties
Provision of competent staff
provision of safe place to work
proper plant and equipment
a safe system of work

COMPETENT STAFF
The employer has an obligation to select competent
fellow employees
a correlative duty to give them proper instruction in
the use of equipment.

SAFE PLACE OF WORK

An employer must take such steps as are
reasonable to see that the premises are safe

ADEQUATE PLANT AND EQUIPMENT

has a 'duty of taking reasonable care to
provide proper appliances
and to maintain them in a proper condition
SAFE SYSTEM OF WORKING

VICARIOUS LIABILITY
This is liability which arises because of one
persons relationship to another
principal is generally liable for the acts of his
servant where he performs negligently in the
course of his employment
LIABILTY FOR PRODUCTS
liability for products was in respect of a
contract between a seller and buyer.

o
NEGLIGENT MISSTATEMENT
a statement of a professional which is being
relied on by the plaintiff causes an injury to him
as a result of negligence of the professional
during the course of his work.
Clay v A. J. Crump Ltd [1964] 1 QB 533
Brett M.R. (Heaven v Pender (1883), 11 QBD
503)

BREACH OF STATUTORY DUTY

INTRODUCTION
Statutory duty has been accepted as a completely
new head of tort distinct from negligence
It provides that if a certain thing must be done and
the default results in injury to another person, the
victim can sue the other person for damages.
It is a separate tort because the are cases where the
defendant has been acquitted of negligence but held
liable on the same facts for breach of statutory duty

BREACH OF STATUTORY DUTY CONTD

Duty must be owed to the Plaintiff
If the statute was not aimed at protecting the
Plaintiff his claim will fail
The Defendant must in fact be Guilty of his
Statutory duty

BREACH OF STATUTORY DUTY CONTD

INDUSTRIAL SAFETY LEGISLATION
industrial safety legislation is one area where the courts
have consistently allowed such common law actions
Some Regulations made are:

Insurance Act, 2006 Act 724

Factories, Offices and Shops Act, 1970, Act 328
Workmans Compensation Law
PNDC Law 187, 1987
Labour Act, 2003, Act 651
Environmental Protection Act

BREACH OF STATUTORY DUTY CONTD

The Insurance Act
It requires an owner of a commercial building
under construction to insure the liability(ies) in
respect of constructional risk arising out of
negligence of servant which may result in:
1 (a) bodily injury to any workman on the site or
any member of the public

BREACH OF STATUTORY DUTY CONTD

(b) loss of life to any workman on the site or any
member of the public
(c) damage of property of any workman on the site or
any member of the public
2.(a) the owner of a commercial building is to insure the
building against collapse, fire, earthquake etc
(b) The policy covers the legal obligations of the owner
or occupier against
loss or damage to property,
bodily injury or death suffered by any user and
third parties

BREACH OF STATUTORY DUTY CONTD

The Labour Act
It provides that in any contract of employment the
duties of the employer include to;
Provide work and appropriate raw materials,
machinery
Take all practicable steps to ensure that the
worker is free from risk of personal injury or
damage

BREACH OF STATUTORY DUTY CONTD

The duty of the worker also include to:
Work conscientiously in the lawfully chosen
occupation
Exercise due care in the execution of assigned work
Obey lawful instructions regarding the organization
and execution of his or her work
Take all reasonable care for the safety and health of
fellow workers

BREACH OF STATUTORY DUTY CONTD

The right of worker as provided in the Act as;
To work under satisfactory, safe and healthy
conditions
To be trained and retained for the development of
the workers skills
To receive information relevant to his or her work

BREACH OF STATUTORY DUTY CONTD

Environmental Protection Act

Disability Act
Building Regulation

GENERAL DEFENCES IN TORT

VOLENTI NON FIT INJURIA
Means that a person who has voluntarily
consented to the commission of a tort may not
sue on it.
Examples occur in sports

GENERAL DEFENCES IN TORT CONTD

MISTAKE
Mistake, either of law or of fact, is no defence
in tort.
Ignorance of the law is not excuse
For mistake of fact, there are exceptions to the
rule that it is no defence e.g false
imprisonment

GENERAL DEFENCES IN TORT CONTD

NECESSARIES
Damage done intentionally may be excused if
done from necessity
Available only when the defendant was
compelled by the circumstances to prevent a
greater evil
Leigh v Gladstone (1909) prisoner was on
hunger strike and was fed by the wadens

GENERAL DEFENCES IN TORT CONTD

INEVITABLE ACCIDENT
It means some happening which cannot be
avoided by the taking of ordinary precautions
Stanley v Powell (1891)- member of shooting
party fired a gun , hit a tree and found its way
into the eyes of another worker.

GENERAL DEFENCES IN TORT CONTD

STATUTORY AUTHORITY
It is a defence to an action in tort to show that
a statute authorized the alleged wrong
The authority given by statute may be
Absolute
Conditional
Metropolitan District Asylum Board v Hill
(1881) siting of smallpox hospital in a
residential area

GENERAL DEFENCES IN TORT CONTD

SELF DEFENCE
One may use reasonable force to defend
himself against unlawful force
Defendant may not be liable provided that the
amount of force used is reasonable and
appropriate to the harm threatened
A person may use reasonable force in the
defect of hid goods

GENERAL DEFENCES IN TORT CONTD

CONTRIBUTORY NEGLIGENCE
o It is a defence both to an action in negligence
and breach of statutory duty.
o The carelessness of employees are as
claimants is treated leniently than the
negligence of employers. Staveley Irons case
Civil Liability Act 1963 (Act 176)- liability of an
employee is to be reduced by the proportion of
negligence

DOCTRINE OF RYLANDS v FLETCHER

Requirements
Blackburn J decided that to succeed in this tort the
claimant must show:

That the defendant brought something onto his land

That the defendant made a non-natural use of his land
The thing was something likely to do mischief if it
escaped
The thing did escape and cause damage

DOCTRINE OF RYLANDS v FLETCHER

Foreseeability
In Cambridge Water Co Ltd v Eastern Countries
Leather plc it was established that the harm of
the relevant type must have been foreseeable.

REMEDIES
The owner of land close to the escape can recover
damages for:
Physical harm to the land itself and to other property.
E.g Halsey v Esso Petrol- claim of compensation for
damages to paintwork by acid spray
It is no longer clear if a claimant can recover for
personal injury as in Hale v Jennings
Non-occupiers
It is not clear if a person who is not an occupier of land
close to the escape can obtain damages for personal
injuries under this tort.

DEFENCES
A number of defences have been developed to
the rule in Rylands v Fletcher
Consent
Common Benefit
Act of a Stranger
Statutory Authority
Act of God
Default of the claimant

NUISANCE
DEFINITION
A thing, person or act that causes trouble or
annoyance.
Types of Nuisance in law
Private Nuisance injury or interference with
use and enjoyment of land or an interest in
land
Public Nuisance- common nuisance affects
class of people or community

Damages caused by nuisance

Physical injury to land
Substantial interference with enjoyment
Remedies
Injunction
damages
Ghanaian law position

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