Negligence Law by Okiya

CAVENDISH UNIVERSITY

UGANDA

BACHELOR OF LAWS (LLB)

MODULE STUDY PACK

LLB 125; NEGLIGENCE AND STRICT LIABILITY

PREPARED

BY

Mr. OKIYA JIMMY JANSKY

EMAIL, [email protected],

[email protected]

PHONE, +256781410203 +256759748994

PREPARED BY Mr. OKIYA JIMMY JANSKY

LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAi

mailto:[email protected]

"Education is a progressive discovery of our own ignorance."

NEGLIGENCE AND STRICT LIABILITY TEACHING SCHEDULE:

CAVENDISH FORMAT.

Cavendish University Uganda

Year One Semester Two

Teaching Schedule

Module Code / Name LLB 125: Negligence, Strict Liability

Description

Discussion of the basic doctrines of the law of negligence e.g. the duty to take care

(Donoghue v. Stevenson); res ipsa loquitur, remoteness of damage etc. Economic and

technological developments and the law of negligence.

Week Delivery Method Activities Resources Comments

1

Lecture Welcome students to the course

Talk about what is expected of

the students throughout the

semester

Talk about students’ expectations

Module description to students

and learning outcomes

.

Tutorial


LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAii

Discussion of the first lecture

2

Introduction to the Law of Negligence

Duty of Care

Breach of Duty

Proof of Negligence

Heydon J.D, Economic Torts,

London, Sweet & Maxwell,

1973

Ames Phillip S., General

Principles on the Law of Torts,

1st Edition, London,

Butterworths & Co, 1959

Tutorial Question & Answer Session

3 Test of proving Negligence

Causation & Remoteness

of damages



1973


Principles on the Law of

Torts, 1st Edition, London,


Assessment Coursework

4 Lecture Remedies to Negligent Actions

Contributory Negligence

Defences in Negligence



1973




Butterworths & Co, 1959.



Tutorial Question and answer session


LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAiii

1973





5 Lecture Strict Liability

Nuisance Heydon J.D, Economic Torts,


1973







1973



6 Lecture Occupier`s Liability

Rule in Ryland Vs Fletcher

Tutorial Feedback on the coursework

7 Lecture Defences in Occupier`s Liability

Remedies in Occupiers liability


LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAiv






1973





Tutorial Question & Answer session

8 Lecture Vicarious Liability

Introduction to Vicarious

Liability



1973





Assessment Coursework

9 Lecture When can a master be liable for a

servant`s actions

Defences



1973




LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAv




10

Lecture Defamation

Introduction to Defamation



1973





Tutorial Feedback on coursework

11

Lecture Proof of Defamation

Defences in Defamation

Remedies to defamation



1973






12 Lecture Damages

Types of Damages



1973





LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAvi

Tutorial Butterworths & Co, 1959

13 Assessment of Damages

Remoteness of Damages



1973






Learning outcomes:

On completion of this module a student should:

1. Understand the concept of negligence

2. Evaluate and analyse the tort of negligence and its

applicability in Uganda

3. Evaluate and analyse the issue of strict liability, invasion of

privacy, nuisance, occupiers liability and its applicability in

Uganda

4. Advise on the different remedies in case of breach and

available defences

Reference:


LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAvii

Core Texts

Tony Weir, (1996); A Casebook on Torts, 6th Edition London Sweet & Maxwell 1988, 8th

Edition, Sweet & Maxwell.

Recommended Texts

Heydon J.D, Economic Torts, London, Sweet & Maxwell, 1973

Ames Phillip S., (1959); General Principles on the Law of Torts, 1st Edition, London,

Butterworths & Co,

Page Keeton & Robert E. Keeton, Torts Cases and Materials American Casebook Series,

West PUBLISHING Co

P.S.Atiyah, (1967); Vicarious Liability in the Law of Torts, London, Butterworths.

Prepared by:

OKIYA JIMMY JANSKY.

Lecturer/Researcher

Cavendish University Uganda,

Opp. United States of America Embassy

Nsambya, Ggaba Road,

Kampala, Uganda.

Email; [email protected] [email protected]

Phone Contacts; 0781410203, 0701512503


LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAviii

mailto:[email protected]


LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAix

TABLE OF CONTENTSUNIT ONE: NEGLIGENCE......................................................................................................................1

INTRODUCTION.....................................................................................................................................1

THE ELEMENTS......................................................................................................................................1

DUTY OF CARE...................................................................................................................................1

BREACH OF DUTY OF CARE.........................................................................................................18

CAUSATION OR DAMAGE OR INJURY.......................................................................................... 29

DEFENCES.............................................................................................................................................37

NEGLIGENCE IN PARTICULAR DUTY AREAS...............................................................................43

DANGEROUS PREMISES AND OCCUPIER LIABILITY..................................................................47

NEGLIGENT MISSTATEMENT...........................................................................................................65

UNIT TWO: STRICT LIABILITY.........................................................................................................82

INTRODUCTION...................................................................................................................................82

FACTS.....................................................................................................................................................83

JUDGEMENT..........................................................................................................................................84

LIVERPOOL ASSIZES.......................................................................................................................84

EXCHEQUER PLEAS........................................................................................................................84

COURT OF EXCHEQUER CHAMBER............................................................................................84

HOUSE OF LORDS............................................................................................................................87

SIGNIFICANCE......................................................................................................................................89

CHANGE TO THE LAW...........................................................................................................................89

ASSESMENT OF THE APPLICATION............................................................................................89

APPLICATION OF RYLAND’S PRINCIPLE IN SEVERAL COUNTRIES...................................94

REMEDIES..............................................................................................................................................97


LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA1

DEFENCES.............................................................................................................................................97

UNIT THREE: VICARIOUS LIABILITY IN TORT...........................................................................99

INTRODUCTION...................................................................................................................................99

GENERAL RULE.................................................................................................................................102

WILLFUL TORTS OF SERVANT:......................................................................................................106

UNIT FOUR: NUISANCE......................................................................................................................111

INTRODUCTION.................................................................................................................................111

PRIVATE NUISANCE.....................................................................................................................111

PUBLIC NUISNCE...............................................................................................................................116

WORKERS COMPENSATION PROCEDURES.....................................................................................116

MOTOR ACCIDENT COMPENSATION................................................................................................120

UNIT FIVE: DEFAMATION.................................................................................................................122

INTRODUCTION.................................................................................................................................122

REMEDIES TO DEFAMED PARTIES................................................................................................125

UNIT SIX: LIABILITY FOR FIRE & DANGEROUS PREMISES..................................................126

INTRODUCTION.................................................................................................................................127

LIABILITY FOR FIRE.....................................................................................................................127

POSITION UNDER COMMON LAWS...............................................................................................128

DANGEROUS PREMISES...................................................................................................................132

LICENCEE............................................................................................................................................133

UNIT SEVEN: PRINCIPLES GOVERNING THE AWARD OF DAMAGES IN CIVIL CASES.138

INTRODUCTION.................................................................................................................................139

DEFINITION AND CLASSIFICATION OF DAMAGES...............................................................139

CLASSIFICATION OF DAMAGES....................................................................................................141

RULES AND PRINCIPLES IN AWARDING DAMAGES.................................................................151



WHERE ASCERTAINMENT IS DIFFICULT OR IMPOSSIBLE......................................................155

AGGRAVATION AND MITIGATION OF DAMAGES....................................................................167

CONTRIBUTION AND APPORTIONMENT.....................................................................................172

DISTINCT RULES FOR MEASURE OF DAMAGES IN CONTRACT & TORT.............................172

SOME RECOMMENDATIONS ON PRACTICE & PROCEDURE...................................................177

REFERENCE.......................................................................................................................................180



UNIT ONE: NEGLIGENCE

INTRODUCTION

Negligence has been so pervasive, that it has transformed even the strict liability tort of trespass,

such that fault is required. The case of Stanley v Powell [1891] 1 QB 86, it was held

that where there is no intent, and negligence is negative, the plaintiff cannot recover whether he

framed the action in trespass or case. Thus, it has been a unifying force in tort law, by requiring

fault before liability is imposed.

However, it has also had a counter-balancing potential, as by expanding liability laterally, it has

made the question of causation more complex extending it to omissions, and other more complex

connections which weren’t ever envisaged by the tort of trespass. Further, the concept of fault,

introduced to provide interpersonal justice, has now expanded to consider questions of social

needs, distributive justice and stricter liability. With the mid-20 th Century, the law of tort has

become more a tool to compensate accident victims, and distribute cost among those best able to

bear it, than an admonitory tool. Thus, the lack of consensus as to the purpose of tort law, and its

relative inability to cope with the question of accident compensation in a welfare-driven society

has meant that the system is under constant stress.

THE ELEMENTS OF NEGLIGENCEIntroduction

Negligence is the breach of a legal duty of care by an inadvertent act or omission which injures

another person.

Negligence involves:

A duty of care - the D owed the P a duty to take care in

the circumstances.



A breach of that duty - the D’s act or omission failed to

reach the standard of carefulness required by the

circumstances and so there is a breach of the duty to take

care.

Causation - the D’s breach caused the P’s damage

Damage - the damage P suffered is legally recognizable

and not too remote from the breach of duty.

Donoghue v Stevenson [1932] AC 562 established the tort of negligence. Lord

Atkin saying that “In English law, there must be and is some

general conception of relations giving rise to a duty of

care…”

The House of Lords found that the P could recover damages from the manufacturer, even

though there was no contract between the parties, where negligence allowed the snail to enter the

bottle. Lord Atkin enunciated the neighbour principle:

“You must take reasonable care to avoid acts or omissions

which you can reasonably foresee would be likely to injure

your neighbor.”

Who then is your neighbor?

“Persons who are so closely and directly affected by one’s

act that one ought reasonably to have them in

contemplation.”



1. The Duty of Care

For an action in negligence, the D must owe a duty of care to the P in the given circumstances.

Lord Atkin in Donoghue v Stevenson [1932] AC 562 said:

“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.”

Thus, the test to establish a duty of care is:

(i) Reasonable foreseeability

(ii) Proximity (or the tests which have replaced it) where there isn’t an established duty of care.

The Notion of Reasonable foreseeability

The duty of care is primarily premised on reasonable foreseeability, as no liability will arise in its

absence. This is a question of law, and in standard cases, such as motor accidents, manufacturers

of defective goods and so on, the foreseeability of harm where there is a lack of care, it is

obvious in the circumstances, and the precedents are well-established, and it is not an issue.

Reasonable Foreseeability as an Essential Test for Duty

Nova Mink v Trans Canada Airlines [1951] 2 D.L.R. 241, during whelping

season, mink, they are prone to devour their young when frightened by noise. The Court held

that once the defendant is “apprised” of this harm, they may be required to alter their activities

such that the risk is reduced or eliminated - that is desist from flying low over the ranch - to show

that reasonable care had been taken.



Palsgraf v Long Island Railway Co. (1928) 162 N.E. 99 The plaintiff was

standing on the platform to catch a train, when another man jumped onto a train as the doors

were closing, and got caught between the doors. The train guards pushed him into the train, and

in the process, a paper package of fire crackers fell under the train, the impact causing an

explosion. As a result, scales toppled over, and injured the platform. The Court held that the

plaintiff was not reasonably foreseeable, as they were at the opposite end of the platform. That is,

they were beyond the range of reasonably foreseeable peril. It was held that “the victim does not

sue derivatively or by right of subrogation to vindicate an interest invaded in the person of

another….he sues for breach of duty to him.” That is “a wrong to another cannot be the basis of

the plaintiff’s claim and even less a wrong to a mere property interest.”

The Scope of Reasonable Foreseeability

Chapman v Hearse (1961) 106 CLR 112 Chapman, due to his negligent driving

was involved in an accident, on a dark and gloomy night. His vehicle had turned over, and he

was thrown onto the highway. A Doctor Cherry whilst in the process of helping him, was struck

by Hearse, and killed. The question was whether Chapman was contributory negligent. Chapman

argued that it was not reasonably foreseeable, as it was not reasonable to foresee that Doctor

Cherry would have come been struck and killed in rescuing Chapman. However, the Court held

that it was “a consequence of the same general character that was reasonably foreseeable as not

unlikely to follow a collision on a dark, wet night upon a busy highway” (at 120). That is, it is

not necessary to foresee the precise sequence of events, just that something of the general

character is reasonably foreseeable in are a sequence of events which are not unlikely in the

circumstances. It was held that it was reasonably foreseeable that a person aiding others in an

accident could be injured themselves. All that is required is that consequences of the same

general kind are not unlikely.

The Concept of Proximity

With Jaensch v Coffey, a new element of negligence was required to establish a duty of care

in cases where there isn’t an established duty of care; there is a requirement of proximity



between the parties, for negligence to lie. However, this has increasingly been put in doubt in the

cases of Hill v Van Erp and Perre v Apand, where the HC has raised grave doubts as to its

usefulness as a universal determinant of a duty of care.

Proximity at its Height!

Jaensch v Coffey (1984) 155 CLR 549 Deane J cited Lord Atkin’s explanation

that where there is a chance for intermediate examination, of the bottle before it reached the

consumer, then there was no longer a requisite ‘proximity’ and that the consumer is no longer

within the class of ‘neighbours.’ That is Deane J cited that Lord Atkin stated that the duty of

care based on reasonable foreseeability would be too wide unless restricted by the notion of

proximity. The plaintiff’s husband had been injured due to the defendant’s negligence, in a motor

cycle accident. The plaintiff, having seen her husband struggling for life in the hospital,

developed severe anxiety and depression caused by her worry about her husband’s state of health

over a period of weeks, Mrs Coffey argued that it was reasonably foreseeable that a spouse

would suffer psychiatric disability as a result of injury to her husband. However, the Court held

that reasonable foreseeabilty alone was too broad a principle. However, it was held that Mrs

Coffey’s involvement at the hospital when her husband was injured, in the aftermath was

sufficient to satisfy proximity requirements. It was developed as a limitation on the neighbour

principle. The question is what is involved in the notion of nearness and closeness. The HC held

that there were three kinds of relationships, which fulfilled this:

(i) Physical proximity (in the sense of space and time)

(ii) Circumstantial proximity, such as an overriding proximity

(iii) Causal proximity.

Cook v Cook (1986) 162 CLR 376, the defendant was a learner driver, whom the

plaintiff invited to drive with him. The Plaintiff was injured in an accident due to the negligence

of the Plaintiff, because the Plaintiff had accelerated instead of braking when faced with a

dangerous situation. The HC held that whilst the duty of care owed to general motorists is the

same as those for other motorists, as the plaintiff knew of the skill levels of the plaintiff, and

accepted the risks, the defendant, in relation to the plaintiff will be judged according to the



standards of a reasonable learner driver. However, the plaintiff was still successful, as it was held

that the defendant’s negligence was so egregious that it did not satisfy the duty of care required

of a reasonable learner driver.

Gala v Preston (1991) 100 ALR 29 Preston and Gala were part of a group of four

youths, who after having consumed a good deal of alcohol, stole a car and crashed it. Preston

was hurt in the crash, and sued Gala for negligence. At first instance, there was a judgement for

him; however, this was reversed by the Full Court of the Supreme Court of Queensland. On

appeal to the HC, Mason CJ, Deane, McHugh, Gaudron JJ held that the parties were not in a

relationship of proximity such as to give rise to a relevant duty of care, since it was not possible

or feasible for a court to determine what was an appropriate standard of care to be expected of

the first appellant as the driver of the vehicle. Brennan, Toohey and Dawson JJ, in separate

judgements, found that Preston would be unsuccessful, for different reasons.

Nagle v Rottnest Island Authority [1993] 112 ALR 393, in this case Nagle

was injured when he dived off a partially submerged rock ledge in the Basin, in Rottnest Island.

His injuries were caused when he struck himself on one of the rocks which were adjacent to the

platform, and below the low water mark. Rottnest Island Authority was under a statutory duty to

manage and control for the benefit of the public the public reserve on the coast of the Island.

That reserve adjoined the Basin. It promoted the Basin as a swimming venue, and encouraged

the public to use it for that and other purposes by installing, maintaining and servicing various

facilities on that part of the reserve which was immediately adjacent to the Basin. Brennan J

dissenting allowed the appeal by Nagle on the basis that:

(i) The respondent brought itself into a relationship of proximity with those visitors who

lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to

any foreseeable risks of injury to which they might be exposed. This was a case in which it was

possible to ascertain the existence of a generalised duty of care without looking to foreseeability,

a concept which in many other situations is the influential, if not decisive, and determinant of the

existence of a relationship of proximity.



(ii) The giving of a warning that the ledge was unsafe for diving was the action that a reasonable

person in the respondent’s situation would have taken to guard against the foreseeable risk of

injury which existed.

(iii) The likelihood was that the appellant would have been deterred from diving by an

appropriate warning sign.

Bryan v Maloney (1995) 69 ALJR 375 Bryan, a professional builder for the Qs, who

sold it to Mrs Maloney, who upon inspection, found nothing to be wrong with the property.

However, within 6 months, there were cracks in the house, and extensive damage was suffered.

The damage was caused because Bryan hadn’t laid the footings properly. Mrs. Maloney was

successful at first instance. On appeal to the HC, the question was whether the relationship

between Bryan and Mrs. Maloney was sufficiently proximate to attract liability. The Court held

that as a house is the most significant investment a buyer it is reasonably foreseeable that the

builder’s negligence would cause economic loss not only to the first buyer, but also to

subsequent buyers. Further, it was held that there was a causal proximity between subsequent

buyers and the builder. It was held that the relationship between the builder and the subsequent

owners was comparatively similar to that between the builder and the original owners. The HC

held that had the building collapsed and caused personal injury or property damage, the builder

would be liable, so there is no reason why the builder should not be liable for the economic loss

incurred in rectifying the situation. The builder argued that allowing liability to be incurred

would cause an indeterminate liability. However, the HC held that this was not so, as the builder

would only be liable once, after which the building is fixed. Thus, a new, novel tort liability of

economic loss for a subsequent loss to a subsequent owner due to a builder’s negligence was

found. It is worth noting that Brennan J found the notion of proximity to be too elastic to provide

any real test.

Proximity Downgraded or Abolished

Hill v Van Erp (1997) 71 ALJR 487 Hill drew up Mrs. Curry’s will and got Mr

Van Erp to witness the will, which included Mrs. Van



Erp as one of the beneficiaries. However, s 15(1) of the Succession Act 1981 (Old) states that

where a beneficiary’s spouse witnesses the will, then, that disposition is null and void. So, the

bequest Mrs. Curry had left Mrs. Van Erp went to Mrs. Curry instead, and Van Erp sued Hill for

negligence. Hill admitted the negligence, but argued that she did not owe a duty of care. At first

instance, Mrs. Van Erp was successful. In dismissing the appeal by Hill, the HC took the

opportunity to downgrade the significance of proximity. Dawson J (with whom Toohey J

concurred) stated that:

(i) Proximity is:

(a) Not a unifying principle

(b) Not a universal determinant of the existence of a duty of care.

However it:

(c) Expresses a result, rather than a process

(d) And is a convenient way of labeling the extra requirement, in addition to reasonable

foreseeability to establish a duty of care.

(ii) Further, he put forward a three stage inquiry in order to establish a duty of care:

(1) Is the harm reasonably foreseeable? Noting that more than reasonable foreseeability alone is

required

(2) Where a new category of liability is suggested, examine established categories by way of

analogy to achieve incremental development.

(3) Determine whether the incremental development is justified by reference to policy

considerations.

(iii) He held that imposing liability on a solicitor was consistent with community standards, and

further, that liability was not a determinant. It was held to be determinant by the contents of the

will. Further, it does not conflict with contractual obligations, as contractual and tortious liability

can be concurrent. Further, he held that there needs to be special consideration in relation to

wills, as the defects will not become apparent until after the death of the testatrix. The specificity

of the situation with regard to wills in relation to beneficiaries distinguishes it from other third

parties. It was held that finding the solicitor liable in such a situation does not curtail their



legitimate pursuit of commercial advantage. It was further held that the community relied on

solicitors as specialists.

This decision brought Australia in line with other common law countries

Perre v Apand (HC) [1999] 73 ALJR 1190, a pand was the distributor of potato

seeds, and had negligently provided seeds diseased seed to the Sparnons - the owners of the

property next to the Perres. They produced a crop infected with bacterial wilt. Whilst the Perres

crop was not infected, they exported the bulk of their crop to WA, where there was legislation

prohibiting the sale of potatoes grown, harvested, packed or cleaned anywhere within a 20 km

radius of where the infected crop was. The Perres sued Apand for damages for negligence. It was

not disputed that the loss suffered by the Perres was reasonably foreseeable and the evidence

revealed that Apand knew persons such as the appellants would be liable to suffer economic loss

in the event of an outbreak of bacterial wilt.

Apand argued that imposing a duty of care in this situation would impose an indeterminate

liability for an indeterminate time and to an indeterminate class of persons. Further, they argued

that a duty to take care to avoid economic loss to another was inconsistent with commercial

standards, these being that one is free to gain an economic advantage. However, the Court held

that there was a determined class of people - those within 20 km radius of the affected property,

and that it did not unreasonably deter economic freedom. The HC allowed the appeal, and in

doing so, replaced the notion of proximity with five different tests:

(1) The protected Interests and salient features test (Gleeson CJ and Gummow J)

(2) Recognised Legal Rights Test (Gaudron J)

(3) Three Stage Caparo v Dickman test (Kirby J)

(4) Incremental Approach (McHugh and Hayne JJ)

(5) Factors in Combination and Incremental approach (Callinan J)

Protected Interests and Salient Features Test

Protected interests are those kinds of detriment the law is willing to protect. Examples:

A. Exportation sales



B. Loss of land value

C. Loss of tenants

Salient features => Must identify the salient features which combine to give rise to a sufficiently

close relationship to attract a duty. Examples:

A. The defendant’s control over the nature and location of the experiment

B. Plaintiff’s inability to take steps to protect themselves against the risk exposed.

C. The legislation imposing a 20 km quarantine zone made loss certain upon disease.

Having applied the test to the fact situation, Gleeson CJ and Gummow J found that there was a

sufficiently close and direct relationship between Perre and Apand to attract a duty of care.

Recognised Legal Rights Test

It was noted that the law recognises pure economic loss in some areas already. This states that a

duty of care is established where a person knows or ought to know where their acts or or

omissions may impair the Plaintiff’s rights, and Plaintiff is not in a position to protect their own

interests. It was held that in such situations, the law ought to impose a Duty of Care to take

reasonable care not to act in such a way as to impair reasonably foreseeable rights.

Three Stage Caparo v Dickman Test

In order to determine whether a Duty of Care exists, three questions need to be answered:

(1) Was it reasonably foreseeable that conduct or omissions are likely to cause harm to a

category of persons whom P belonged to?

(2) Does a relationship of proximity or neighbourhood exist between the plaintiff and the

defendant?

(3) Is it fair, just and reasonable that the law imposes a Duty of Care for the plaintiff’s benefit?

It was held that terms such as “reasonable”, “fair” “proximity” etc. are simply labels to direct the

judge to think about the conceptual framework of negligence actions. None of these should be

elevated to the status of pre-conditions.



Incrementalism

This test was developed as there was a concern with predictability. Are there good reasons to

expand the Duty of Care beyond the existing categories? In order to answer this, three questions

must be asked:

(1) Does it come within an est. Duty of Care?

(2) If not, was the harm suffered foreseeable?

(3) If so, the Court should examine analogous cases where the Court has determined whether a

Duty of Care has examined. In doing this, the Court should look at the policy considerations, and

the reasoning, and apply these in the specific case.

This test has been criticized for its temporal specificity.

Combination of Factors and Incrementalism

This test is compendious (slightly incoherent). It was held that courts should move incrementally

and cautiously, and in doing so look at factors such as proximity and foreseeability.

To Whom is a Duty of Care Owed?

1.Consumers

Donoghue v Stevenson [1932] AC 562.The Court found that there was a sufficiently

close relationship between the consumer and the manufacturer to attract a duty of care. Lord

Atkin enunciated the neighbour principle which stated that there is a requirement to take

reasonable care to avoid acts or omissions which you can reasonably foresee will injure your

neighbour. Further, a neighbour was held to be anyone who is so closely and directly affected by

your acts. They are people who you ought to reasonably have in contemplation when acting or

refraining from acting.

Grant v Australian Knitting Mills [1932] AC 85 Doctor Grant bought two pairs

of underpants and singlets. He developed an acute rash, and spent three months in hospital as a

result, and his doctor feared for his life. This was caused by an excess of sulphates The HofL,



applying Donoghue v Stevenson found that the manufacturer was liable. The manufacturer

argued that there was no duty of care, as there was an opportunity for intermediate examination.

However, the HofL held that as the defect was latent, Doctor Grant couldn’t reasonably be

expected to know of the defect, and further, as the garments were worn as expected to be worn,

there was a duty of care.

2.Road Users

Bourhill v Young [1943] AC 92 Young, a motorcyclist was killed in a motorcycle

accident, due to his negligence. Bourhill was a bystander, who was standing on the other side of

a tram when the accident occurred. He sued Young’s estate for nervous shock resulting from the

accident. The HofL held that whilst Young owed a duty of care to many, there was no such duty

towards an unseen bystander.

3. Users and Purchasers of Premises

Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, before this

case, the duty of care owed to users of premises differed upon the category of the user. For

example, a different duty was owed to invitees compared to that owed to a trespasser. In this

case, Zaluzna, upon entering Safeway store in an affluent Melbourne suburb, slipped and fell on

the floor, as a result of the floor being damp. She sued the store. The HC held that occupiers have

a general duty to take reasonable care to safeguard from injury to those who enter the land. The

Court further held that the distinction between invitees, licencees and trespassers was artificial,

and thus, was abolished.

Bryan v Maloney (1995) 69 ALJR 375, this is the case of the builder and the

subsequent owner. The Court held that there was a duty of care despite the fact that the only

connecting factor between the parties was the house.

4.School Children

Geyer v Downs (1977) 138 CLR 91, an eight year old child was hit on the head with

a bat by another child when they were playing before school. The Court held that the principal of



the school owed a duty of care to its students, and that this is to be fulfilled by providing

supervision while the school gates are open.

5.The Unborn Child

Watt v Rama [1972] VR 353, the plaintiff’s mother was involved in a car accident

whilst pregnant. The child was born with brain damage as a result of the defendant’s negligence

in the accident. The plaintiff argued that her injuries occurred during the course of the accident,

or because of it. The Court held that the plaintiff was born with injury due to pre natal negligence

can sue. It held that the duty of care involved a duty to take care not to injure a person where it is

reasonably foreseeable that the injury will occur. In the current circumstances, a potential duty

exists if and when the child is born. The actual duty is crystallised when the child is born, and

acquires a legal identity.

Lynch v Lynch, a mother was found to owe a duty of care to an unborn child who was

injured as a result of injuries caused by her negligent driving. However, the Court restricted the

application of such a duty strictly to the circumstances of the case, as there is a very low

threshold which needs to be crossed to establish a duty of care in motor vehicle accidents.

6.Rescuers

Chapman v Hearse (1961) 106 CLR 112 The question in this case was whether

Chapman had been contributorily negligent in relation to Doctor Cherry’s death, who was struck

by Hearse when he was rescuing Chapman, who was lying on the road as a result of a car

accident caused by his negligence. The Court held that the threshold for establishing a duty of

care is low when dealing with a rescuer, and thus, Chapman was contributorily negligent.

7.Other Categories

Home Office v Dorset Yacht Co. Ltd [1970] AC 1004 Juvenile offenders

housed in a Boy’s Home were taken on an excursion to an island. Due to the warden’s

negligence, some of the boys escaped using a yacht owned by the Dorset Yacht Co. They sued

the Home Office. The Court found that the Home Office owed a duty of care to those in the



vicinity. However, this was held to be confined by the circumstances and proximity of the said

property.

Weeler & Co v Foot and Mouth Research Institute [1965] 3 WLR

1082 GET FACTS!!!!!!!!!!!!

Alcock v Chief Constable of Police [1992] 1 AC 310, there was a disaster at a

football stadium when a stand collapsed due to the negligence of the defendants who allowed it

to become overcrowded, 95 people were crushed to death. The game had been televised live at

the time. Thus, not only were people at the stadium witness to this terrible tragedy, but people at

home witnessed it on their television screens. This was a class action for nervous shock. The

HofL held that there needed to be a sufficient relationship of proximity required to give rise to a

duty of care. This involved “close ties of love and affection” as well as some sort of physical

proximity in time and space.

Wartime

Shaw Savill v The Commonwealth (1940) 66 CLR 344, this was an action

by Shaw Savill against the Commonwealth for damages for the damage caused to the motor

vessel Coptic in a collision between the HMAS Adelaide and the Coptic. It was held that where

an action of negligence is brought against the Commonwealth for acts done in the course of

active naval or military operations against the enemy must fail.

Legal Profession

Rondell v Warsley [1969] 1 AC 191 and Gianarelli v Wraith(1988) 62

ALJR 611 both held that barristers are immune from negligence actions for in-court work and

this also extends to some out of court work. This is because it is preferable not to interfere with

the judicial process. This immunity extends to solicitors acting as advocates.



Hall v Simons [2000] 3 All ER 673, in three separate cases, clients brought claim

their former solicitors, which was defended on the basis that they were immune from an action in

negligence. The HofL considered whether the immunity should be abolished, or whether it was

still justified on policy grounds, especially the public interest in preventing collateral attacks on

court decisions, and in ensuring that advocates respected their overriding duty to the Court. It

was held that immunity should be abolished, on the basis that immunity is not required to deal

with collateral attacks on civil and criminal decisions, and that the public interest is satisfactorily

safeguarded by independent principles and powers of the Court. Further, it was held that the

immunity was not required to ensure that barristers respected their duty to the Court. This was

based on the fact that doctors, who had both a duty to the patients and a duty to adhere to an

ethical code, are not immune from negligence actions. Further, experiences in other jurisdictions

such as Canada demonstrate that such a view is rather pessimistic, and moreover, there are many

benefits with abolishing immunity. These include the end of an anomalous exception to

providing remedy for a wrong committed, and there was no fear of a flood of actions. A barrister

by performing his duty to the court to the detriment of his client could never be called negligent,

and there is no possibility of a finding of negligence where a barrister his conduct was bona fide

dictated by his perception of his duty to the Court.

Hill v Van Erp (1997) 71 ALJR 487, the HC has allowed negligence actions against

solicitors in certain, restricted circumstances.

The Case of the Unforeseeable Plaintiffs

Bourhill v Young [1943] AC 92 In this case, the plaintiff was unable to recover, as it

was held that it was unforeseeable that an unseen bystander would suffer from nervous shock as

a result of an accident, and thus, no duty of care existed.

Levi v Colgate-Palmolive Ltd (1941) 41 SR (NSW) 48, the plaintiff had

received a free sample box of products from the defendants. This included a sachet of bath salts,



which the plaintiff used, resulting in a rash, which lasted for a long time. In determining whether

a duty of care existed to especially sensitive plaintiffs two questions must be asked:

(i) If the Defendant owes a Duty of Care and breaches it, and an abnormal plaintiff by reason

of the abnormality suffers an injury, can they recover on this basis?

(ii) Does the fact that the plaintiff has an abnormality create a special duty of care?

The Court held that the answer to the first question was in the affirmative, and the second

question was negative.

Further, it was held that if the defendant knows of the plaintiff’s abnormality, then a special duty

of care is found. However, no such duty exists in the normal course of events.

Haley v London Electricity Board [1965] AC 778, the plaintiff was a blind

man who fell into a ditch dug by the London Electric Board, as the safety fence they had erected

was too low for him to detect it with his cane. The London Electric Board argued that he was an

unforeseeable plaintiff. However, the HofL held that it was reasonably foreseeable that a blind

person would walk along the pavement, and could be injured as a result of inadequate safety

measures.

Mt Isa Mines v Pusey (1971) 125 CLR 383 The plaintiff was an engineer and

witnessed two electricians who worked for the company being electrocuted. The plaintiff went to

rescue them and saw the resulting horrible burns. He developed a psychiatric disorder which was

latent when he saw this. The HC found that he was reasonably foreseeable, despite a pre-existing

susceptibility, and he was awarded damages.

Qualifications to the Duty of Care

Novus Actus Interveniens

Chapman v Hearse (1961) 106 CLR 112, in this case Chapman argued that

Hearse’s actions in hitting Doctor Cherry constituted a novus actus interveniens, and thus, he

no longer owed a duty of care, as the causal connection was broken. However, the Court held



that it was exactly this sort of action which was reasonably foreseeable, and thus, there was no

novus actus interveniens and Chapman still owed a duty of care.

The Opportunity for Intermediate Examination

Farr v Butters [1932] 2 KB 606 Crane manufacturers sold a crane, unassembled to

builders where a crane erector would assemble it for the builders. The erector when he was

erecting the crane found that parts of it were ill-fitting, and accordingly marked the areas with

chalk. However, before the defects were remedied, the erector began working on it; it fell on and

killed him. It was held that as the defects were discoverable on reasonable inspection, and having

in fact been discovered by the deceased, the manufacturers did not owe a duty of care.

Grant v Australian Knitting Mills [1936] AC 85. The Court held that there was

no opportunity for intermediate examination in this fact situation, as the excess of sulphates in

the underwear were a latent defect, and it was not reasonable to expect Doctor Grant to have

discovered this upon examination.

Different Kinds of Losses in negligence

Physical Damage to Person or Property

This is the most straight forward kind of loss, and the Courts are not in the least hesitant to find a

Duty of Care in these situations.

Nervous Shock

Bourhill v Young, Mt Isa Mines v Pusey and Jaensch v Coffey were

examples of nervous shock cases.

McLoughlin v O’Brian [1983] AC 410, a mother suffered nervous shock as a result

of seeing her family in hospital. One of the members died due to their injuries. It was held that

there is a three stage test to find for nervous shock:

(i) Does the person fall into a class of persons able to sue?



(ii) Proximity in time and space

(iii) How was the shock caused?

Quayle v the State of New South Wales [1995] Aust Torts Reports An

aboriginal man was taken by his brother to a local hospital, suffering from alcohol withdrawal

symptoms. The nurse on duty handed him over to police even though he had committed no

offence. The deceased hung himself in a police cell. The police asked the brother to identify the

body in the back of a police van on a public street. Not only the brother, but the mother and other

brothers were also compensated for nervous shock in the form of prolonged and pathological

grief caused by the police and the hospital’s actions. This case was not appealed, mainly due to

the unwanted publicity it would attract if appealed.

2. Breach of Duty in negligence

The Negligent Act

The Plaintiff must prove that the defendant has breached the standard of care required of a

reasonable person. The standard of care is a question law, and whether this has been breached is

a question of fact. The standard is that of a reasonable person. Is the risk foreseeable? There are

two main areas which determine the standard of care, and whether it has been breached:

(i) Foreseeability is a necessary, but not sufficient condition for the breach. The D must take

precautions against the risk.

(ii) The calculus of negligence determines the significance of the risk.

Vaughan v Menlove (1837) 132 ER 490, the defendant’s hayrig caught on fire,

and this spread to the neighbour’s property. This occurred despite the neighbour’s warning of the

hazard. However, the defendant had disregarded it as he believed it wasn’t a risk. The defendant

argued he ought not to be responsible where he bona fide did not believe in a significant risk. It

was held that it should be assessed against the other person.

“Negligence is the omission to do something which a

reasonable man guided upon those considerations which

ordinarily regulate the conduct of human affairs, would PREPARED BY Mr. OKIYA JIMMY JANSKY


do, or something which a prudent and reasonable man

would not do.”

Blythe v Birmingham Waterworks (1856) 11 Exch 781 per Alderson B the

factors which ordinarily regulate conduct are:

“whether the act or omission in question is one which a reasonable person would recognize as

posing an unreasonable risk must be determined by balancing the magnitude of the risk in the

light of the likelihood of an accident happening, the possible seriousness of its consequences,

against the difficulty, expense or other disadvantage of desisting from the venture or taking a

particular precaution.”

Wyong Council v Shirt (1980) 146 CLR 40, the plaintiff was an inexperienced

water skier on a remote lake. Wyong Council had dredged a channel of deep water to allow boats

to get from the edge. They had put up a notice stating “Deep Water.” Upon seeing the notice, the

plaintiff came off his skies, and as a result, bumped his head on the rock bed and suffered severe

injuries as a result. He sued in negligence for their negligence in erecting the misleading sign.

Mason J noted that foreseeability of risk and likelihood are two different concepts, and

foreseeability doesn’t necessarily relate to likelihood. It was held that a risk is foreseeable as

long as it is not “far-fetched or fanciful.” Whether a reasonable person in the Defendant’s

position would have foreseen a risk to the plaintiff or a class of persons in the Plaintiff’s position,

if so, the tribunal of fact would ask what a reasonable person in the Defendant’s position would

do in response. The HC found that the jury’s finding against the Council was open to them as “a

risk of injury which is remote in the sense that it is extremely unlikely to occur or may

nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and

therefore foreseeable.”

Nagle v Rottnest Island Authority (1993) 177 CLR 423 Nagle was injured

when he dived off a partially submerged rock ledge in the Basin, in Rottnest Island. His injuries

were caused when he struck himself on one of the rocks which were adjacent to the platform, and



below the low water mark. Rottnest Island Authority was under a statutory duty to manage and

control for the benefit of the public the public reserve on the coast of the Island. That reserve

adjoined the Basin. It promoted the Basin as a swimming venue, and encouraged the public to

use it for that and other purposes by installing, maintaining and servicing various facilities on

that part of the reserve which was immediately adjacent to the Basin. The HC found on appeal

that the injury in diving off the rock was a foreseeable risk, and that foolhardiness was not

relevant, and agreed with the trial judge, and found for the plaintiff.

H v Royal Alexandria Hospital (1990) Aust Torts Reports 81-000, the

plaintiff was a haemophiliac child who was given blood transfusions in March 1982 and

September 1983. He contracted HIV as a result of one of these transfusions, and contracted

AIDS. He sued the hospital for negligence. However, it was initially unknown that AIDS could

be contracted through blood transfusions. It was held that the Defendant was not negligent in

respect to the transfusion in 1982, as the risk could not been foreseen in March 1982.

Damage of Negligence

Likelihood

Bolton v Stone [1951] 1 All ER 1078, the plaintiff was hit by a cricket ball from the

cricket ground across the road from her house. It was 90 metres from the batsman to her house.

The Plaintiff’s neighbour testified that balls had entered her backyard five to six times in over

thirty years. Balls were rarely hit out of the ground. Lord Reid held that “the test to be applied

here, is whether the risk of damage to a person…was so small that a reasonable man…from the

point of view of safety would have thought it right to refrain from taking steps to prevent the

damage. It was found that the likelihood in this case was negligible, and the appeal failed.

Wagon Mound No 2 [1966] 2 All ER 709, the owners of two ships sued a charterer

alleging that the loss of their ships to fire was caused by the Defendant’s negligence in

discharging large quantitities of furnace oil into the harbour. The Privy Council found that it was

reasonably foreseeable that the oil spilt on the water may catch fire. It was argued that the



officers of the Wagon Mound would regard furnace oil as being very difficult to ignite on water,

and that they would have regarded it as a “possibility but one which would become an actuality

only in very exceptional circumstances“. The Privy Council held that Bolton v Stone did

not preclude negligence for all small risks. Lord Reid held that:

“A reasonable man would only neglect such a risk if he had some valid reason for doing so:

example, that it would involve considerable expense to eliminate the risk. He would weigh the

risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone

had been an unlawful activity there can be little doubt but that Bolton v Stone would have

been decided differently. In their lordships’ judgment Bolton v Stone did not alter the general

principle that a person must be regarded as negligent if he does not take steps to eliminate a risk

which he knows or ought to know is a real risk and not a mere possibility which would never

influence the mind of a reasonable man. What that decision did was to recognise and give effect

to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if

the circumstances are such that a reasonable man, careful of the safety of his neighbour, would

think it right to neglect it.”

Seriousness

Paris v Stepney Borough Council [1951] AC 367, the plaintiff lost his second

eye as a piece of metal entered his eye due to the defendant (his employer’s) negligence in

failing to provide safety goggles. It was held that “in considering…the precautions which an

employer ought to take for the protection of his workmen, it must…be right to take into

account…the likelihood of an accident happening, and the gravity of the consequences.” It was

further held that there it is a duty of employers to take additional precautions where they know of

the gravity of the consequences to specific employees; where they have knowledge of special

circumstances which affect the gravity. It was held that by Lord McDermott that “what may

happen to the person is as important as the actions.” Thus, the risk and degree of injury are

relevant factors in determining whether a breach has occurred.



DAMAGE OR INJURY

Watt v Hertfordshire County Council [1954] 1 WLR 835, the Defendant

was the employer of a fireman who received an emergency call about a woman trapped under a

heavy vehicle very close to the fire station. As the special vehicle used to carry a heavy jack used

for such purposes was out, the fireman loaded it onto a normal fire truck. He had to in the course

of getting to the scene, apply his brakes suddenly. The jack hit the plaintiff, and the plaintiff sued

the employer for negligence. The employer was found to be negligent at first instance. The Court

of Appeal found that they were not negligent and it was held that the utility of the conduct must

be considered, and balanced against the risk taken. It was held that “in measuring due care, you

must balance such a risk against the measures necessary to eliminate the risk…you must balance

the risk against the end to be achieved…the waving of life or limb justifies taking a considerable

risk.”

Daborn v Bath Tramways [1946] 2 All ER 333, the defendant was driving a left-

hand drive ambulance, and had a sign which stated that it was a left-hand drive ambulance. It

collided with a bus when turning right. It was held that the utility of using the vehicle

outweighed the risk.

Practical Alternatives

In looking at whether an alternative is practical, factors such as expense, convenience etc. of

implementation needs to be taken into account.

Caledonia Colliers v Speirs (1957) 97 CLR 202, the plaintiff’s husband was

killed at a level crossing when hit by a train carrying trucks which lost control and ran down a

steep embankment. No measures such as points on the line, which would stop derailed trains,

were taken. The escape of the trucks was reasonably likely to occur and it was reasonably

foreseeable that the Plaintiff would be injured. It was held that a finding of negligence was open

to the jury. The Defendant argued that installing the points in the line was not a practical

alternative as there would be inconvenience in slowing trains down, and a risk of derailment. The



HC held that the danger was such that it required drastic measures, and further that the

Defendant’s argument gave undue weight to derailment.

Vozza v Tooth (1964) 112 CLR 316, the plaintiff an employee of the defendant was

injured when a bottle burst when it was removed from the pasteuriser. He was provided with

leather gloves to safeguard from injury. However, these were too thin to prevent injury. The jury

found that the employer had been negligent. The HC reversed this decision on appeal as it was

held that the P had not adduced sufficient evidence that it would have been reasonable to install

machine handling or practical to provide thicker gloves. In fact, it was found that thicker gloves

would have meant that the P could not handle the bottles. It is up to Plaintiff to show that

alternatives are practical.

Nelson v John Lysaght (1975) 50 ALJR 104, the Plaintiff slipped and injured

them whilst carrying a heavy coil of wire. It was held that the provision of non-slip shoes were

insufficient safety measures. Measures put in place to improve safety after the accidents were

accepted as evidence of reasonably practical measures that could have been put in place to avert

the accident.

Mercer v Communication for Road Transport (1936) 56 CLR 580, the

Plaintiff was injured when the Defendant’s tram crashed, as the driver had collapsed. The

conductors had made every effort to stop the tram. The Plaintiff argued that an automatic

stopping system was a reasonably practical alternative which could have been implemented.

These had been installed in all electric trains in Sydney, but not the trams. However, the

defendant argued that such a system was not in place in any other tramway. However, the HC

held that a finding of negligence was open to the jury, as general trade practice may fall short of

the required standard of care.

Time to Assess Risk

Roe v Minister for Health [1954] 2 QB 66, two plaintiffs who went to hospital

for a minor operation were given a spinal anaesthetic which had been stored in a container of



phenoyl. They were paralysed waist down due to the presence of phenoyl in the anaesthetic

which had seeped through invisible cracks in the glass container in which the anaesthetic was

stored. It was held that the Defendant hadn’t been negligent by the standard of medical

knowledge in 1940. The Court noted that the plaintiff’s situation was terrible; it wasn’t possible

to compensate under tort, and to do so would go against community standards.

Who is the Reasonable Person

Glasgow v Muir [1943] AC 448, in which Lord MacMillan held that legal liability, is

limited to actions which a reasonable person of ordinary intelligence would contemplate. In

dealing with the reasonable person, the idiosyncracies of the defendant are excluded, and the

reasonable person is free from over-apprehension and over-confidence

Paptonakis v Aust Telecommunications Commission (1985) 156 CLR

7, described the reasonable person as the “hypothetical reasonable person on a hypothetical,

Bondi tram.” (Deane J).

Age

McHale v Watson (1966) 115 CLR 199, it was held in this case that a child is

judged upon the standards of a reasonable person of the same age and experience as the plaintiff

Physical and Intellectual Disability

McHale v Watson (1966) 115 CLR 199, the Defendant was a boy of 12 who threw

a metal spike towards a wooden post, which hit a girl of 9. The plaintiff argued that the test

should be one which determined the standard of care in relation to the reasonable man. However,

the HC found that childhood is not idiosyncratic, and found that the trial judge had not

misdirected the jury by saying that the liability of a twelve year old is different to that of an

adult, it was held that whilst abnormal or idiosyncratic characteristics can’t be taken into account

that does not preclude a lack of foresight or capacity not special to himself, but relevant to all in

his station in life. It was held that youth is judged by the capacity or prudence of a person of that

age.



Adamson v Motor Vehicle Insurance Trust (1956) 58 WALR 56, the

plaintiff was run over by a Mr B, who was suffering from delusions, and believed that his

workmates were trying to kill him, and that he had to escape. He stole a vehicle and drove

recklessly along the road. The Court found that on the facts, he was not insane at the time of

driving as he knew what he was doing, and knew it was wrong. Further, as a matter of law, it was

found that insanity is not a defence to tortious liability.

Plaintiff’s Knowledge of Defendant’s Competence, Skill or Disability

Cook v Cook (1986) 68 ALR 353. The plaintiff was an experienced driver, who

invited the defendant, a learner driver to drive with him. In the course of their driving, the

defendant accelerated instead of decelerating in trying to avoid a parked car. The HC held that

whilst the D’s conduct should be judged against the same objective test as other drivers in

relation to users of the highway who were unaware of the defendant’s inexperience, the standard

of care owed to the plaintiff was one which is determined by judging their conduct against that of

a reasonable learner driver, as the P knew of the D’s inexperience. However, it was found that

the defendant’s negligence was so gross, that the plaintiff was successful.

Special Skills - Professional and Specialist Standards

Sidaway v Bethlehem Hospital [1984] 1 All ER 1018, the Bolam principle

was used to determine the standard of care required. This stated that a doctor is not negligent if

he/she acts in accordance with practice accepted by a responsible body of doctors. However, it

was held that this test only applied to actual procedures, and not advice given.

Rogers v Whittaker (1992) 175 CLR 479, the P was almost blind in one eye from

age 9, and sought advice from an ophthalmic surgeon with regards to it. The surgeon stated that

appearance and sight would improve if they had a particular operation. The operation was

undertaken with due care and skill. However, the P sued the surgeon for failure to disclose risks,

as she developed sympathetic opthalmia, and lost sight in her good eye. The P was successful at



first instance. On appeal to the HC, it was held that a medical practitioner that a medical

practitioner has a duty to exercise due skill and care in all aspects of treatment and advice. The

standard of skill and care is that of an ordinary person who professes to have that skill. In order

to determine the standard, the evidence of peers will be taken into account, but is not conclusive.

The Court will decide the matter by giving paramount consideration to the fact that a person has

the right to make their own decisions about their lives. The factors used to determine the

adequacy of the standard of care are:

(i) Nature of treatment

(ii) Patient’s desire for the information

(iii) The temperament and health of the patient

(iv) The general surrounding circumstances

A medical practitioner has to warn the patient of a material risk about the procedure if it is one

which a reasonable patient in the P’s position is likely to give significance to, or if the

practitioner is aware of the particularities of the patient, and knows that the particular patient

would attach significance to it, they have to disclose it.

Proof of Negligence

Generally, the onus is on the plaintiff to prove on the balance of probabilities (BoP) that the

Defendant was in breach of a duty of care.

In some circumstances, there is direct evidence of this, and in others, inferences need to be

drawn. In order to succeed, the Plaintiff must prove that the inference is more probable than not.

These inferences must be drawn from proven facts.

Holloway v McFeeters (1956) 96 CLR 99, the Plaintiff’s husband was struck and

killed by y an unidentified motor vehicle driver. There were no eye-witnesses. However,

evidence from the anterior movements of the deceased, and tyre marks on the roadway suggested

that the deceased was struck whilst crossing the road, along the centre of the road. It was held

that inferences drawn from actual proven facts are just as much evidence as the facts themselves.

Further, it was held that sufficient evidence existed that inferences could be drawn that it was



more probable than not that the car was driven in a negligent manner and that this caused the

accident.

TNT v Brooks (1979) 23 ALR 945, the Plaintiff’s husband was killed in a road

accident. He was driving a loaded semi-trailer in a northerly direction when there was a collision

between his truck, and another, travelling in the opposite direction. Both drivers were killed, and

there were no witnesses. Three possible scenarios were possible on the facts:

(a) The P’s H was driving on the wrong side of the road

(b) The other truck was driving on the wrong side of the road

(c) Both were driving down the middle of the road.

The HC found that an inference could be drawn that it was more probable than not that the other

vehicle was on the wrong side of the road.

Res Ipsa Loquitor

The event or matter speaks for itself.

Mummery v Irvings P/L (1956) 96 CLR 99, the Plaintiff entered the Defendant’s

shed to buy timber, and saw the Defendant’s foreman working on a circular saw, and moved

towards him, when he was hit by a flying piece of wood. The trial judge had not left the question

of negligence to the jury. It was held that this could be open to the jury defendant upon whether

the jury could draw inferences towards negligence as a result of res ipsa loquitor. It was held

that res ipsa loquitor is not a legal principle, but a “general index to those cases in which mere

proof of an occurrence…constitutes prima facie evidence of negligence.” Evidence was adduced

to partially explain the cause of the wood hitting the plaintiff as the evidence tended to establish

that the wood was thrown by the circular saw. The question wasn’t how the wood flew across the

area, but how it flew from the circular saw. However, the Court couldn’t find for the P as there

was no evidence of the circular saw and many others, and further the P couldn’t rely on res ipsa

loquitor, as some evidence was adduced.



Scott v London & St Katherine Docks Co [1865] All ER 158-9, it was held

that “where the thing…is under the management of Defendant and the accident is such that in the

ordinary course of things does not happen if those who have the management use proper care, it

affords evidence, in the absence of explanation by the Defendant, that the accident arose from a

want of care.” In this case, a bag of sugar fell on the P’s head, and injured him. The Defendant

called no evidence and the Court found that if Plaintiff could illustrate that the circumstances

were under Defendant’s control, and that the accident would not have accrued except for the

Defendant’s negligence, then the Court is able to find negligence. However, they don’t have to.

This doctrine does not shift the onus of proof from the Plaintiff to the Defendant. It remains with

Plaintiff. However, the Defendant bears the evidentiary onus to adduce evidence if no other

explanation of the injury or accident is produced. Where there is no explanation, the jury may

make a finding for the Plaintiff.

The Effect of the Doctrine

The effect of the doctrine, as held in Mummery v Irvings is that a finding of negligence

MAY result. This isn’t a legal principle that is to be strictly adhered to.

3. Causation or damage or injury

Causation in fact requires that once the plaintiff has demonstrated that the defendant was

negligent, they must further demonstrate that the negligence caused the Plaintiff’s injury.

Causation in law looks at the remoteness of damage.

The ‘But For’ Test

This involves determining whether the injuries would have been suffered but for the defendant’s

negligence.

Barnett v Chelsea & Kensington Hospital Management Committee

(1969) 1 QB 428, the P’s husband fell ill after drinking some tea, and went to casualty to

find that there was only a nurse, as the doctor had gone home. The nurse called the doctor, who



told him to go home & see his doctor. The husband died five hours later from arsenic poisoning

as there had been arsenic in the tea. The Plaintiff sued the hospital and the doctor, claiming that

their negligence caused her husband’s death. The Court held that the doctor was negligent in not

coming into the hospital, but, the doctor’s negligence hadn’t caused the Plaintiff’s husband’s

death, and thus, he was not liable. Evidence was adduced that even if he had attended, he would

only have been able to give an intravenous drip four hours later. Expert evidence suggested that

his chances weren’t good. The Plaintiff had failed to establish that her husband’s death resulted

from Defendant’s negligence, on the Burden of Proof. If the Plaintiff would have been injured

even if the Defendant hadn’t been negligent, then Defendant’s negligent did not cause the death

in legal terms.

March v Stramare (1991) 171 CLR 448. The defendant had parked his truck in

the middle of the road, with his hazard and rear lights on. The plaintiff, as he was drunk, drove

into the back of the truck. He sued for negligence. It was found that the defendant was not liable

on appeal to the Full Court. On appeal to the HC, the trial judge’s decision was restored. The HC

commented on the limitations of the ‘but for’ test where there are multiple causes. They held

that:

(i) The ‘but for’ test has limited used

(ii) It cannot be an exclusive criterion for causation.

(iii) It must be tempered by value judgements and policy considerations.

(iv) Common sense must be looked at too.

SRA of NSW v Wiegold (1991) 25 NSWLR 500, the plaintiff was employed by

the Defendant and was injured when he fell down a railway embankment at night. He was no

longer able to work after the accident, and was provided with worker’s comp. He grew Indian

hemp to provide sufficient money by selling marijuana. He was arrested, convicted and

imprisoned. He sued the defendant. The question was whether he would have been imprisoned

but for the Defendant’s negligent. The trial judge held that the defendant was negligent. They

held that the ‘but for’ test was singularly inappropriate.



Chappel v Hart (1998) 156 ALR 517, the plaintiff’s oesophagus was injured during

surgery without negligence. This damaged her vocal cords and she partially lost her voice. She

sued the doctor for negligence in not letting her know of the risk. She argued that had she known,

she would have put off the surgery, and hired the best surgeon possible. The Court discussed the

‘but for’ test with regard to determining whether the plaintiff would have not had the surgery. In

some circumstances the ‘but for’ test doesn’t work. For example, if it had been that the

anaesthetic had gone wrong, where even if she knew of the risks of the perforation, and had put

the operation back, she would still be injured. However, as the damage was due to the

perforation, she was successful.

Increased Risk

M’Ghee v National Coal Board (1972) 3 All ER 1008, the plaintiff was

employed to clean up brick film. He sued the National Coal Board for their negligence in failing

to provide showers to wash the dust off, which caused severe dermatitis. The evidence could not

demonstrate that it was more probable than not that the failure to provide showers caused the

dermatitis. However, it showed an increased risk. The HofL found the employers liable.

Wilberforce LJ held that whilst logically if there was only an increased risk, then this is not the

cause of the injury. However, it was held that on policy grounds, that an increased risk satisfies

the requirement of causation. It was held that where a breach of a duty creates a risk, and there is

a disease, then the party creating the risk should be held liable.

Wilsher v Essex Area Health Authority (1988) AG 1974, in this case

M’Ghee was severely criticised in Wilsher v Essex as the law requires proof of fault.

Demonstrating an increased risk doesn’t satisfy the evidentiary burden to show that the

Defendant’s actions cause the Plaintiff’s injury. They suggested in M’Ghee had succeeded as

both risk factors were provided by the Defendant. In the current fact situation, there was an

innocent contributing factor, and the defendant’s contributing factor, and the P failed, as they

could only demonstrate increased risk, not that the Defendant had caused the injury.



M’Ghee discussed a “material increase of risk.” This was criticised in Wilsher v Essex as “the

law requires proof of fault causing damage.”

Bennett v Minister for Community Welfare (1992) 176 CLR 408, the

plaintiff was a ward of the state that was injured when trained in a detention center run by the

Defendant. The Defendant acknowledged that Plaintiff, as a ward of the state was entitled to

independent legal rights and advice. They had been negligent in providing this to him. In 1976,

when he was no longer a ward of the state, the Plaintiff got his own independent advice, and was

advised that he could not recover for his injury (negligently). 1979, after getting further advice,

he sued the defendant for the loss of a right to sue, as his original action had become statute

barred. The Minister admitted the negligence, but argued that the negligence was a novus actus

interveniens, and so, there was no causal connection between the negligence and the damage.

However, the HC rejected this argument, holding that had the Defendant fulfilled their duty, the

Plaintiff wouldn’t have had to obtain advice at a later date, and thus, the negligence of the advice

at the later date had no effect. Gaudron, on her own found for the Plaintiff on the basis of

M’Ghee style of reasoning. She suggested that in the absence of evidence that the Defendant’s

breach had no effect, the breach had no effect, and the breach would be taken to have caused or

materially contributed to the injury or damage.

Multiple Sufficient Causes

Alternative Causes

What is the situation where the P’s injury would probably have occurred anyway? E.g. where the

Plaintiff has a pre-existing condition, and the negligence accelerates it.

Holton v Berkshire Area Health A thirteen year old boy fell out of a tree, and injured

his leg. The hospital failed to treat it properly for five days. He would develop osteo-arthritis.



The HofL held that where on the Burden of Proof, the plaintiff would have developed the

condition regardless of the Defendant’s negligence, the Defendant is not liable.

Von Hartman v Kirk Where the Defendant accelerates death, the Defendant is liable, but

only pays damages for the period of acceleration.

Additional Causes

Where two separate individual causes combine to cause a loss, both the Defendants are liable as

concurrent tort feasors, and both will contribute to the P’s loss.

Performance Cars Ltd v Abraham (1962) 1 QB 33, the defendant drove into the

Plaintiff’s Rolls Royce. A fortnight ago, another car had hit the Plaintiff’s car. There was some

overlap in repairs, and it already needed respraying due to the first accident. The Court held that

the second defendant did not have it flowing to them that they had to pay for the damage caused

by the first accident. The fact that the first tortfeasor didn’t want to take on his share of the costs

shouldn’t affect the second tortfeasor.

Baker v Willoughby [1970] AC 476, the Plaintiff suffered serious injury to his

ankle. He suffered pain, loss of amenity etc. In a hold up three years later, in a hold up, he was

shot in the ankle, and it was so serious that at his leg had to be amputated. The respondent (the

first tortfeasor) argued that he shouldn’t be liable for any loss, as there was no longer a leg. The

appellant argued that the injury hadn’t shortened his life, and so there was still damage. The

Court held that whilst the Court normally takes into account the vicissitudes of life in calculating

damages, this is not applicable in the current situation to suggest that there is no loss. The Court

held that at best, damages could be reduced for pain and suffering, as there is no longer a leg, and

so, the Plaintiff can’t argue pain and suffering on the basis of the leg. The Court held that the

defendant was liable for all loss caused by him except the additional loss caused by the thief.

That is, the defendant couldn’t rely on the second accident to reduce liability for the loss

‘swallowed up’ in the second accident. It was held that damages don’t compensate for the injury



itself, but for the loss suffered as a result. The second tortfeasor is only liable for the additional

loss only, as you must take the victim as you find them.

Faulkner v Keffalinos (1970) 45 ALJR 80, the defendant injured his leg in as a

result of the original tortfeasor’s negligence. He was further injured in a second accident, causing

him to lose all earning capacity. It was unsure who the second tortfeasor was. The Court held

that where the second incident is a non-tortious act, the Court will take it into account as one of

the “vicissitudes of life.” It was held that the defendant could rely on the second accident

toreduce damages on the “vicissitudes of life” principle. Thus, the first tortfeasor was only liable

for the loss of earning capacity up until the second accident.

Intervening Causation

Chapman v Hearse (1961) 106 CLR 112, the question was whether Hearse’s act in

running over Doctor Cherry was a novus actus which broke the chain of causation between

Chapman’s actions and Doctor Cherry’s death. It was held that as Chapman’s negligence had

contributed to the death, and this was the sort of situation which was foreseeable, Hearse’s

actions weren’t a novus actus and that both were partly liable.

Mahoney v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, an

employee was injured at work, and he sued the employer. The employer argued that Doctor

Mahoney’s negligent treatment had caused, or contributed to the employee’s injuries. The Court

held that exacerbation of injury by medical treatment is a reasonably foreseeable where an injury

is negligently caused. IT was held that negligent treatment doesn’t necessarily break the causal

connection. However, where professional and reliable treatment is ordinarily available, and the

Plaintiff’s injury is exacerbated, then, the doctor providing the medical services is liable for the

degree of exacerbation.

March v Stramare (1991) 171 CLR 506. The defendant had parked his car in the

middle of the road, and the Plaintiff, a drunk driver, drove into his tail. The question was whether



the drunk drivers dribbling the car into the back of the truck break the causal chai? The Courts

held that the Plaintiff’s negligence didn’t break the causal connection, as where the Defendant’s

wrongful conduct is the very reason for the Plaintiff’s or the third party’s negligent action, then

the causal connection is not broken.

Remoteness of Damage

Re Polemis & Furness Withy & Co Ltd (1921) 3 KB 560, it was held that if

the damage is too remote, the D is not liable. It is known as the “Direct Consequences Test.”

Universe Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The

Wagon Mound No 1) [1961] AC 388 Prior to the Wagon Mound looked at whether

the injury or damage was a direct consequence of the Defenedant’s act. It was criticised due to

the burden placed on the Defendant. The employees of the charterers of the ship allowed a large

quantity of oil to be discharged into Sydney Harbour. It spread across a large part of the bay and

congealed on a wharf and around a ship. The plaintiff’s workmen gave instructions that no

welding work should be carried out. The manager told them to continue. They continued until

the wharf and the ship caught alight. The Privy Council held that Polemis is no longer good law,

and that liability is imposed where the consequences are reasonably foreseeable. It was held that

the d was not liable, as on the evidence, the damage was not reasonably foreseeable.

Universe Tankship (UK) v Miller Steamship Co Pty Ltd (The

Wagonmound (No 2)) [1967] 1 AC 617, per Lord Reid “reasonably foreseeable”

means “A real risk…would occur to the mind of the reasonable man…which he would not brush

aside as far-fetched or fanciful.” The actions were brought by the owners of two ships sued a

charterer alleging that the loss of their ships to fire was caused by the defendant’s negligence in

discharging large quantitities of furnace oil into the harbour. The Privy Council found that it was

reasonably foreseeable that the oil spilt on the water may catch fire. It was argued that the

officers of the Wagon Mound would regard furnace oil as being very difficult to ignite on water,

and that they would have regarded it as a “possibility but one which would become an actuality

only in very exceptional circumstances“. It was held that the defendant is liable for damage



caused not only by the defendant, but that which fell within by the class or category of damage

which is reasonably foreseeable, if the officers had seen the damage as a possibility, which could

only become an actuality in exceptional circumstances. The defendant’s in Wagon Mound 2

were held liable.

Hughes v Lord Advocate (1963) AC 837, it was held that it does not matter if the

exact circumstances are not foreseen, as long as harm of the kind could be foreseen. That is, it is

not required that the exact manner be foreseen, as long as the harm could be foreseen. Workers

working on a dark street went on a break, leaving an open manhole. They had surrounded it by a

canvas tent, and a ladder to get in. There were red paraffin lamps around it. Two young boys

went in, and one of the lamps was knocked over, and there was an explosion. The younger boy

fell into the manhole as a result, and suffered severe burns. The HofL held that the defendant

owed a duty and breached it, and although the injuries of a different degree weren’t foreseeable,

however, something of the kind was foreseeable. Whilst the manner was unforeseeable, the harm

could have been foreseeable.

Mt Isa Mines v Pusey (1970) 125 CLR 383, the HC held that a mental disorder

of some kind was reasonably foreseeable as a result of their negligence. The degree of that

disorder need not be foreseen. The HC held that what is required is:

A. Not foresight of the particular course of events

B. Only some harm of a like kind.

C. The “comfortable latitudinarian” doctrine - this is a broad test.

Egg Shell Skull Cases

Enunciates the concept of take the plaintiff as you find them, the extent of harm need not be

foreseeable as long as the KIND of harm is foreseeable.



Dulieu v White (1901) 2 KB 405, the plaintiff may suffer from some pre-existing

weakness or the defendant’s negligent act may cause injury resulting in some susceptibility to

further illness or injury

Smith v Leech Brian & Co (1964) 1 QB 518, the plaintiff was a worker and he

got burnt and this enhanced cancer. As it was reasonably foreseeable that there would be a burn,

responsibility extends to the fatal cancer which developed from an unusual pre-malignant

condition of the victim.

Robertson v Post Office (1974) 2 All ER 737, the plaintiff suffered brain

damage after getting a tenus shot for graze and it was reasonably foreseeable that the medical

treatment would go wrong and therefore the defendant is liable for damage.

Defences

The most common defence argued is that the defendant did not breach the duty. Whether the

duty has been breached is decided by a tribunal of fact. Sometimes, it is argued that no duty was

owed.

Contributory Negligence

The historical position at common law was that it was a complete defence.

Butterfield v Forrester (1809) 103 ER 926, it was held that if the defendant

could establish that the P was guilty of a failure to take care of his or her safety, then, the

defendant is not held to be liable.

Davies v Mann 152 ER 588, the situation espoused in Butterfield was modified by the

“last opportunity rule.” This stated that whoever had the last opportunity to avoid the accident

would be liable.

This rule was further modified in Alford v Magee (1952) 85 CLR 437; The HC

fiddled with the cases and the applicable cases, and stated that where the defendant had a real PREPARED BY Mr. OKIYA JIMMY JANSKY


opportunity to avoid the accident, they should be liable. If the defendant’s actions were later in

time, the defendant would be liable. Where defendant had an advantage, the defendant is liable.

All these rules looked at laying the blame on either party’s shoulders; there was no notion of

apportionment.

Thus, Section 10 of the Law Reform (Miscellaneous Provisions) Act 1965 was enacted, which

means that contributory negligence is no longer strictly a defence, but a plea for the reduction of

damages. The act is a cornucopia of tort reforms in NSW.

Section 10 states: “where a person suffers damage…partly of his own fault, and partly the fault

of any other person…a claim…shall not be defeated, but the damages recoverable…shall be

reduced to such extent as the court thinks just & equitable, having regard to the claimants share

in the responsibility of damage.

Apportionment of responsibility is a question of fact. “Damage” is defined to include any loss of

life and personal injury. “Fault” is defined as “negligence or other act or omission which gives

rise to a liability in tort.”

The apportionment of liability is measured in terms of percentage.

Pennington v Norris (1956) 96 CLR 10; The P was run over by the defendant on

a dark, wet night. He had had a few drinks too. The Tasmanian Supreme Court held that the P’s

damages would be reduced by 50% due to contributory negligence. On appeal to the HC, it was

held that the damages would only be reduced by 20%. The HC held that it must be a “just and

equitable” apportionment of responsibility between P&D.

Generally, in NSW, a 30% reduction is large, 25% still quite large, and a 15-20% reduction more

likely.



Culpability means the “degree of departure from the standard of care of the reasonable man.”

The act gives wide discretion to the tribunal of fact.

Froom v Butcher (1975) 3 All ER 520; It was held that negligence depends on the

breach of a duty of care, but contributory negligence doesn’t. The P is guilty of contributory

negligence if he ought to reasonably have foreseen that, if he did not act as a reasonable prudent

man, he might be hurt himself. It was a reduction in damages for the failure of the P to wear a

seatbelt.

Lord Denning stated that where the failure to take care for one’s own safety made all the

difference, he would apportion a 25% reduction, where there is a significant contribution, he’d

apportion 15%. (In Froom v Butcher, however, this is in no way binding, just interesting).

Davies v Swan Motor Co (1949) 2 KB 291, for contributory negligence, there is

no requirement that Plaintiff owe a Duty of Care to anyone, just that they failed to take

reasonable care for their own safety.

There is further a question as to whether there is a causal link between the Plaintiff’s loss and

their negligence. It must be foreseeable.

Jones v Livox Quarries (1952) 2 QB 608, the Plaintiff was riding a motor cycle

on the back of a truck. Any reasonable person would think it foreseeable that they would fall off

or that another vehicle could run into the back of their truck. It was held that the Plaintiff is

guilty of contributory negligence, as he should have foreseen that standing on the back of the

truck would lead to injury. He had been injured when someone ran into the back of the truck.

Gent-Diver v Neville (1953) QSR 1, the Plaintiff was a pillion passenger on a

motorbike. He knew that the front light was defective. The collision was due to the fact that the

driver was driving on the wrong side of the road, it wasn’t due to the fact that the headlight

wasn’t on, and so there was no causal link, and thus, no reduction. It was held that there was no



contributory negligence, because although the Plaintiff knew the lights were defective, the

accident was not caused by defective lights, but by the defendant was on the wrong side of the

road.

The standard of care applicable to the Plaintiff is reasonableness and the calculus of negligence

is applicable.

Caterson v Comm for Railway (1973) 128 CLR 99, the Plaintiff was a man

who lived in the country seeing a friend off at the station. He carried his baggage onto the train

and it moved off. He had left his 14 years old son at the station. The next station was 130 km.

The Plaintiff’s home was 80 kilometers away. The Plaintiff jumped off the moving train, and

was injured. He sued the defendant in negligence for not warning him that the train was moving

off. The question of contributory negligence arose. The Court held that “where the Plaintiff has

been so placed that they can only escape by taking a risk, the question of reasonableness is

weight between the inconvenience caused, and the risk taken.” It was held that the Plaintiff was

not contributorily negligent.

The risk taken by the P is considered in light of the situation of risk created by the defendant

(McLean v Tedman (1984) 155 CLR 306). Plaintiffs are judged quite leniently, as

the plaintiff’s conduct is judged in light of the situation created by the Defendant.

McLean v Tedman (1984) 155 CLR 306, the plaintiff was a garbo, who was

crossing the road when Brambles (one of the defendants) overtook the garbage truck, and ran

over him. The garbo would run back & forth, and emptying the bins on either side. The plaintiff

sues both the driver, and his own employer for negligence. The employer and the driver argue

contributory negligence on the part of the plaintiff. The employer argues that the P had been

instructed not to carry out the work in this way, but to travel up a street, emptying all bins on one

side, then emptying the bins on the other. The defendant argued that the plaintiff was negligent in

not taking a proper lookout for his own safety. However, the HC held that as the employer knew

that all the garbos didn’t adhere to the instructions given, and the employer did nothing about



this, they were negligent in allowing an unsafe system of work, and the driver, by overtaking at

an unsafe speed created the dangerous situation, and thus, the P was not contributorily negligent.

Volenti Non Fit Injuria

Where a plaintiff voluntarily assumes the risk, this is a complete defence to a claim of

negligence. Where a defendant can show that the plaintiff voluntarily assumed the risk, the

defendant cannot be liable. However, the defence of volenti cannot be pleaded in motor vehicle

or work accidents due to s 76 of the Motor Accidents Act 1988 and s 151o of the Workers

Compensation Act 1987.

In order to show volenti the defendant has to prove that:

1 The plaintiff knew of the facts constituting danger (knew the risk)

2 Fully appreciated the danger inherent in those facts

3 Fully accepted the risk of injury.

American Cigarette Co (overseas) Pty Ltd (No 3) (1987) VR 289, the P

was a smoker who contracted lung cancer who sued in negligence for the defendant’s failure to

warn of the risk of contracting lung cancer. The defendant brought a defence of volenti, stating

that the plaintiff knew or ought to have known the risks of smoking. The plaintiff applied to

strike out the defence. The Courts held that constructive knowledge was not acceptable to

constitute a defence of volenti. It was held that plaintiff’s knowledge must have been express,

and that actual, rather than constructive knowledge was required.

Imperial Chemical Industries v Shatwell [1965] AC 656, the HofL held

that the general rule is that voluntary assumption of risk will NOT defeat a claim of an employee

against an employer.

Insurance Commissioner v Joyce (1948) 77 CLR 39; Latham CJ held that

where the plaintiff is a passenger in a car of a drunken driver, the P should fail on any one of the

following three grounds:



1. No breach of duty to a willing passenger

2. P was contributorily negligent in getting into the car.

3. The P voluntarily assumed the risk.

Roggenkamp v Bennet (1950) 80 CLR 292, the plaintiff was FULLY aware of

the defendant’s drunkenness and plaintiff accepted the risk. Whether this is so is a question of

fact, and can be inferred from the plaintiff’s behaviour. As a result of the above, it was held that

the defendant had a defence of violenti and plaintiff couldn’t bring an action.

Rootes v Shelton (1967) 116 CLR 383, the plaintiff was a very good water skier

who was performing a cross-over with another skier. This was also known as “Russian

Roulette.” The plaintiff was injured while performing the cross-over, as the driver of the speed

boat was driving too close to another craft, and he collided with it. The defendant argued volenti.

However, the Court held that the P had assumed the risks involved in the “Russian Roulette”

manoeuvre, but not that of the negligent driving of the speed boat driver. The plaintiff’s action

was successful. It was held that the P may accept inherent risks involved with the sport, but not

non-inherent risks, or the risk of negligence outside the sport.

Kent v Scattini (Full Ct of WASC), the plaintiff was a sixteen years old who was

sitting on the steps of the P.O. when they were sprayed by other kids with water. The plaintiff &

her friends armed with similar equipment took after the other car, and were travelling at

80km/hr, when the car failed to take a bend, and the plaintiff was injured. She sued the driver of

the car. The defendant argued volenti. The Court held that she had only assumed risk in regard to

the spraying of water, and not in regard to the defendant’s negligent driving, and thus, the P was

successful. It was held that plaintiff is only barred from recovery for losses which are caused by

the result of a known and accepted risk.

Illegality

This is referred to as a defence, but is usually used to deny that a duty of care existed.



Henwood v Municipal Tramsways Trust (Sth Aust) (1938) 60 CLR

438, the plaintiff was the mother of the deceased who was killed when leaning out the

window to vomit. The tram carriages were too wide, and went very close to the staunchons. The

deceased was killed when he hit his head on one, whilst vomiting. The defendant was aware of

previous serious accidents, and hadn’t warned people, except to put up a sign to say that leaning

out of tram windows is prohibited. The P sued the trust. The trust argued that the son had

committed an illegal act, and thus, they weren’t liable. On appeal to the HC, McTiernan and

Dixon JJ held that one must look at the purpose of the law which the P has contravened. If it is to

disentitlte P, then, the D is absolved of liability. If not, the defendant is still liable.

Jackson v Harrison Jacobs J held that “a legal duty… presupposes that a tribunal of fact

can properly establish a standard of care…if the courts decline to permit the establishment of an

appropriate standard of care then it cannot be said that there is a duty of care.”

Gala v Preston (1991) 172 CLR 243, four youths stole a car, and went for a joyride,

when they met with an accident. The plaintiff (one of the youths) sued the defendant (the driver

of the car) in negligence. The question was whether the illegal act deprived him of his ability to

sue. Mason CJ, Deane, Gaudron and McHugh JJ held that whilst illegality doesn’t automatically

deprive the P of a right to sue, where they are in a joint illegal enterprise, it is not feasible to

determine the appropriate standard of care, and thus, no duty arises.

Negligence - Particular Duty Areas

Product Liability

Donoghue v Stevenson [1932] AC 262 imposed a duty of care that “a

manufacturer of products…owes a duty to the consumer to take reasonable care.”



Junior Books v Veitchi held that “manufacturer” is to be broadly understood.

Haseldine v Daw holds repairers liable.

O’Dwyer v Leo Buring [1966] WAR 67 imposes liability for the negligent design of

a product. Adelaide Chemical & Fertiliser Co v Carlyle (1940) 64 CLR 514

imposes liability for the negligent marketing of a product. Norton Aust Pty Ltd v

Streets Icecream Pty Ltd (1969) 120 CLR 635 imposed liability for the failure

to warn of dangers of proper use.

Grant v Australian Knitting Mills [1936] AC 85. The defendants tried to

distinguish this case from D v S as the underwear was easy to inspect. However, as the excess of

sulphates in the underwear was latent, no reasonable inspection would have made it

discoverable.

Running alongside common law liability are statutory provisions which impose liability.

SOGA 1923 whilst it only applies to contracts for the sale of goods implies warranties into

contracts that the goods must:

Have fitness of purpose, be of merchantable quality and cannot be excluded.

However, it is of limited use as the doctrine of privity of contract means that the ability to bring

an action is restricted.

Part V Division 2A of the TPA and more accurately, S 74B of the TPA gives consumers or

persons acquiring title through or under a consumer can bring an action against a manufacturer in

respect of goods unsuitable for the purpose. S 74C allows for an action in respect of false

description of goods, S 74D for goods of unmerchantable quality, S74E for goods not

corresponding with a sample, and S 74K prohibits the exclusion or modification of this division.



Under S 74 a (3) and (4) manufacturer is defined broadly, and includes a corporation which:

allows its name or brand on goods, holds itself out as a manufacturer and is an importer, and the

manufacturer has no Australian place of business.

A consumer is defined as a person acquires goods where: the price does not exceed the

prescribed amount. (Was $40 000) or, where the price was greater, but the goods were of a kind

ordinarily acquired for personal, domestic or household use.

Due to constitutional limitations, the TPA only applies to corporations. However, the FTA

applies where the manufacturer isn’t a corporation

Part VA of the TPA, enacted in 1992 imposes liability upon manufacturers and importers of

defective goods and applies to goods: if their safety is not such as persons generally are entitled

to expect.” (S 75A)

A corporation supplying such goods is liable for damages to a person, where the person is

injured or killed, (S 75AD). The remedy for other persons who suffer consequential losses is

found under S 75 AE. The remedy for damage to personal, domestic or household goods is found

under S 75 AF. Remedy where land or buildings are damaged is found under s 75 AG. S75AK

provides the defences, S 75 deals with contributory negligence, and s 75AQ stipulates a three

year time limit.

Under the TPA, a plaintiff doesn’t have to prove the existence of either a Duty of Care or

negligence. So, where possible, a plaintiff would be best advised to plead two causes of action,

one in tort, and one under the TPA.

However, it is important to keep in mind the effect of walking on cross-vesting legislation.

Phillip Morris Inc v Adam Brown Male Fashion Pty Ltd (1981) 148

CLR 457 accrued jurisdiction means that a court, any court, apart from those which have their



jurisdiction specifically specified is allowed to hear and determine other matters to properly hear

the matter before them.

Abnormal Plaintiffs

Levi v Colgate-Palmolive (1941) 41 SR (NSW) 48 Mrs. Levi sued Colgate as

she contracted a very severe dermatological condition due to using free samples provided by the

defendant. The HC held that as her reaction was very, very rare, she was so unusual that she was

an unforeseeable plaintiff. As the bath salts were harmless to everyone else, she was

unforeseeable, and owed no duty of care. She didn’t succeed on the basis of the egg-shell skull

cases, as there the Ps were injured just like everybody else, just to a much greater degree. It was

held that “the bath salts supplied to P were innocuous to normal persons…the skin irritation

which she suffered…was attributable exclusively to hypersensitiveness.”

Haley v London Electricity Board [1965] AC 778, the P, a blind man, was

injured, when he fell into a ditch dug by the LEB, as they had not provided a barrier which was

sufficiently high for him to detect it with his cane. It was held that the P was not unforeseeable,

as it was foreseeable that a blind person would walk along the pavement, and could be injured if

proper safety measures were not undertaken. Here it was held that D “ought to anticipate the

presence of such persons within the scope and hazard of their operations.”

The Unborn Child

Watt v Rama [1972] VR 353, the P was a woman who suffered severe brain damage

due to an accident which her mother was involved in due to the defendant’s negligence. The D

argued that the P couldn’t recover, as an unborn child has no legal rights. However, the Court

held that the rights of the unborn child are potential rights, which crystallize when it is born.



Lynch v Lynch (1991) 25 NSWLR 491. A child sued a mother for negligence in

causing injuries when she was in her womb due to a motor vehicle accident. The child was

successful, as it was found that it was owed a duty of care. However, the Court restricted the

application of such a duty strictly to the circumstances of the case, as there is a very low

threshold which needs to be crossed to establish a duty of care in motor vehicle accidents.

Mackay v Essex Health Authority [1982] QB 1166, the plaintiffs sued a

doctor and a pathological lab on the basis that they were negligent in failing to properly conduct

tests to determine whether the mother had rubella. The mother wasn’t treated, or warned of the

dangers of continuing with the pregnancy. The child was born with severe disabilities. The

plaintiffs were mother & child. The mother argued that she couldn’t terminate the pregnancy as

she didn’t know, caused by the defendants’ negligence. The child’s claim was that their

negligence caused her to be born. An interlocutory application by the defendants was to strike

out both claims. However, it was held that the mother’s claim would be allowed, but the child’s

claim would be struck out. The Court of Appeal agreed, holding that the child did not have a

cause of action. The child’s claim was one of wrongful life, and the mother’s one of wrongful

birth. It has been held that whilst a cause of action exists for wrongful birth, no such action exists

for wrongful life.

Dangerous Premises & Occupier’s Liability

Introduction

The foundation of liability for this is occupational control. It is control associated with and

arising from the presence in and use of or activity in the premises. Thus, a plaintiff would look to

the tenant, and not the landlord for relief if injured on leased premises. Whilst possession is a

good test for control, it doesn’t have to be exclusive to make the defendant liable. Thus, a

licensee or indeed, anyone with a right to invite people over someone else’s land could be an

appropriate defendant in a suit. (Wheat v Lacon [1966] AC 552, Kevan v

Commissioner for Railways [1972] 2 NSWLR 710) PREPARED BY Mr. OKIYA JIMMY JANSKY


Premises include land and fixtures; however, this has been widely read. London Graving

Dock v Horton [1951] AC 737, held that this includes moveable structures, e.g.

scaffolding

Swinton v China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553

is an example where ships and gangways were held to be premises.

The Old Common Law Approach

The pre-Zaluzna position involved a special duty of care dependent upon the class of visitor to

the premises. The classes were:

A. Invitees

B. Licensees

C. Persons entering under contract (invitee)

D. Persons entering in exercise of legal power (invitee)

E. Persons entering as of public right (licensee)

F. Trespassers

As the Courts were dissatisfied with this approach, as it became increasingly complex and

formalistic, thus, the Courts encouraged circumvention of the differing duties by allowing

“concurrent resort to Atkinian duty of care” where there was any deviation from “mere

occupancy.”

The Concurrent duties approach held that an ordinary Duty of Care overrides a “special duty.”

(Hackshaw v Shaw (1984) 155 CLR 614, Papatonakis v Australian

Telecommunications Commission (1985) 156 CLR 7)

Voli v Inglewood Shire Council (1963) 110 CLR 74, special duty has to be

proven where the breach comprised something in the “static” condition of the premises.



Papatonakis v Australian Telecommunications Commission (1985)

156 CLR 7 held that a general duty of care needs to be established if the breach arose out of

the activities, or positive actions of the occupier.

The law allowed for recovery in different circumstances depending upon the class of the

plaintiff. These were: where there were dangers which the defendant knew or should have known

of in relation to invitees. Where the defendant knew of dangers to licensees, where acts were

done deliberately to cause harm to trespassers.

The Current Position in Australia

The classical formulation has now been virtually rejected. The modern formulation is that a

general duty of care is owed to a person entering land, regardless of the distinction between

invitee, licensee and trespasser where there are circumstances where a general duty will lie.

Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, the plaintiff

went shopping at a Safeway store in an affluent Melbourne suburb on a wet Saturday morning.

She slipped and was injured in the foyer, and sued in negligence. It was held by Mason, Wilson,

Deane and Dawson JJ that “all that is necessary is to determine whether in all the circumstances,

including the fact of the D’s occupation of premises, and the manner of the P’s entry upon them,

the D owed a duty of care under the ordinary principles of negligence.” Thus, they spelt an end

to the “so-called special duties resting on an occupier of land with respect to persons entering as

[invitees], licensees or trespassers.” It was held that the manner of entry is not a decisive factor,

and that there are no hard & fast rules regarding it. The question of the manner of entry is more

applicable in the question of the standard of care.

Papatonakis v Australian Telecommunications Commission (1985) 57

ALR 1 .The question of whether an occupier’s duty extends to include a duty in relation to

independent contractors was left open. That is, there a duty to “see that reasonable care is taken.”



Modbury Triangle Shopping Centre Pty Ltd v Anzil (23.9.2000) HCA,

this was a question which turned upon breach. The P worked in a video shop in the shopping

center. There was a large car park in front of the Shopping Centre, which had previously been lit

up until late at night. However, Modbury took the view of turning off the car park lights when

most of the shops closed. So, the car park was dark when the video shop closed. The P was

mugged in the car park as a result. The Court held that the D hadn’t been negligent, as the

calculus of negligence had fallen their way.

Liability of Statutory Authorities

Local councils are statutory authorities. Under their enabling acts, they have the power, and not a

duty to act. Thus, the Courts held that where a statute has given them a POWER to act, why

should the common law impose a duty to act?

Questions arise as to the distinction between misfeasance and non feasance. Will a statutory

authority be held liable for misfeasance? Further, what if the actions are ultra vires?

Anns v Merton London Borough Council (1978) AC 728, this case was not

followed in either the HofL or in Australian courts, but, it is important, due to the concepts it

enunciated. The P bought a house within the D’s council area. It had been built without their

knowledge on faulty foundations. The P sued the council as it has the power to approve building

plans and the power to inspect the construction. The Court held that the council was liable as it

was reasonably foreseeable that if the council hadn’t inspected the construction, someone would

suffer. The Court held the following in relation to the liability of statutory authorities:

Intra vires & a policy decision - the courts will not interfere.

Ultra vires & a policy decision - the courts will assess whether (in) action was negligent

Not a policy decision, but an operational one - the courts will assess whether (in) action was

negligent.



Sutherland Shire Council v Heyman (1985) 157 CLR 424, the fact

situation was almost identical to those in Anns. The HC in this case declined to follow Anns on

the question of where a DoC arises - that is they declined to use the distinction between policy

and operational decisions - and instead used reliance as the test. The majority Mason CJ,

Brennan and Deane (in separate judgements) held that:

In general, there is no duty to exercise statutory powers.

The duty arises where the authority, by its conduct places itself in a position where other people

rely on it to take care for their safety.

The Duty arises where the D ought to foresee that:

(i) The P reasonably relies on the D to perform the function

(ii) The P will suffer damage if the D fails.

The Court held that the D was not liable, as the P hadn’t relied on the Council’s inspections.

They could have, but they didn’t. Further, the Council did nothing to induce the P to rely on it.

The HC found unanimously for the D. Two minority judges found that there was a duty, but no

breach. Mason CJ held that policy or operational distinctions are not relevant in determining

whether a duty exists. It is relevant on the question of breach. He further introduced the concept

of general reliance.

Parramatta City Council v Lutz (1988) 12 NSWLR 293 Lutz was the owner

of a property next to a derelict house. The Council had the power to demolish any derelict

buildings, even where the owner doesn’t. Lutz had repeatedly asked for the building demolished.

The Council had failed to do so, and a fire started in that property, spreading to her property,

destroying her house. It was held that as Lutz had specifically relied on the council to demolish

the building, and as the council had induced her to do so, there was a DoC. Both Kirby P and

McHugh JA held that the council was liable to P as the P had “generally relied” on it to exercise

its statutory powers. McHugh JA went on to state that “I think…that this Court should adopt as a

general rule of the common law, the concept of general reliance.”



Pyrenees Shire Council v Day (1998) ALJR 1, there were three Ps - the owner

of a fish and chip shop, the tenant, and the owner of the property next door. The Council

inspected a flat behind the shop, and found the fireplace to be very dangerous. The inspector

warned the then tenant not to light a fire. The inspector issued a notice to the owner regarding

fixing the fireplace. The owner sells the flat, and a new owner, and a new tenant arrives. The

tenant lights a fire, and the place burns down. The plaintiff’s sued the council, as the inspector

had come, and knew of the danger, and it didn’t do anything. The HC held that the owner

couldn’t succeed as they hadn’t specifically relied on the council. The tenants and the adjoining

owner were successful, as they had relied on the council. The majority (Brennan CJ, Gummow

and Kriby JJ): rejected the concept of general reliance (too vague, uncertain, and relies on a

“general expectations of community.”), only McHugh, Toohey JJ approved the concept of

general reliance; Brennan CJ held that there was no specific reliance by the P (owner) here. It

was held that a duty arises where the “autority is empowered to control circumstances give rise

to a risk and where a decision not to exercise power to avoid a risk would be irrational in that it

would be against the purpose of the statute.” Gummow J held that the council had esclusive

control and knowledge of this situation, and should so be reliable; the control mechanisms are

misfeasance or nonfeasance here the council by its actions, placed itself in such a position which

imported a Duty of Care. The policy or operational distinction is not a clear cut basis for

determining liability, but there will be no liability for the quasi-legislative of statutory bodies

(e.g. zoning prescriptions) or core areas of policy making. Kirby J held that proximity is not a

universal identifier of a Duty of Care. BUT, more than reasonable foreseeability is required. You

look at a spectrum of proximity factors, which involves determining whether:

A. The gravity of the risk is high

B. The claimants were not strangers to the Council, but ratepayers.

C. The council had statutory power expressly to prevent fires

D. The council had exclusive knowledge of dangers

E. These are sufficient to impose a Duty of Care. He further held that the following should be

taken into account:

F. Policy considerations



G. The test in Caparo v Dickman for a Duty of Care.

Crimmins v Stevedoring Industry Finance Committee (1999) 167

ALR1. Stevedoring is a statutory body. A waterside worker died as a result of contracting

mesothelioma as a result of inhaling asbestos fibres. The deceased’s wife sued the statutory body

for negligence, arguing that the Authority failed to warn of the dangers of asbestos, failed to

instruct as to those dangers, failed to provide respiratory equipment, failed to encourage

employers to introduce safety measures for the handling of asbestos, failed to ensure that

employees were aware of the risks of exposure to asbestos and failed to properly inspect the

conditions under which stevedoring operations were carried out. The Stevedoring Industry

Finance Committee assumed “all the liabilities and obligations of the Authority that existed” as

at 26 February 1978. The Authority allocated the waterside workers for work in accordance with

the needs of the various employers the workers having no say in the allocation.

McHugh J and Gleeson CJ agreeing: analysed the precedents in similar cases to reveal their

“bases in principle and policy.” Held that there may be special factors which negative a duty

for a public authority where a duty would be owed by a private individual. The common law

courts should take caution in imposing affirmative duties of care on statutory authorities. In

novel cases, the duty should be determined by the following questions:

Was it reasonably foreseeable that the Defendant’s act or omission including a failure to exercise

of statutory power would cause injury?

Did the defendant have the power to protect a specific class including the P (rather than the

public at large).

Was the P vulnerable?

Did the D know of the risk to the specific class including the P if D didn’t exercise their power?

Would the duty impose liability for the “core policy making” or “quasi-legislative” functions of

the body?

Are there any policy reasons to deny duty (Example the Duty of Care is inconsistent with a

statutory scheme).



Gaudron J: an obligation imposed on an authority by the Act is consistent with the Duty of

Care., The P is vulnerable; D knew of the asbestos; the authority had power to control or

minimize risk.

Gummow J agreeing with Hayne J: inappropriate to ask whether a Duty of Care is inconsistent

with a statute; the starting point must be the statute; in the present case, the relevant statute was a

complete statement for the regulation of the subject matter; the authority lacked any power over

safety.

Kirby J: Applied the Caparo “3 stage enquiry” and imposed a Duty of Care.

Hayne J: The powers of authority were “quasi-legislative.”; the authority was not in control of

the situation. Thus, there was no Duty of Care.

Callinan J: Right to exercise control, and actual control as an indicator of a Duty of Care.

Ryan v Great Lakes Council 9 August 2000 Federal Court Australia

Lindgren J held on the DoC issue that; there were no clear principles laid down by the HC.; This

was a novel case as a duty was claimed towards the “consuming public.” This is generally not

an identifiable class, and there isn’t a duty to exercise powers in one particular place (cf

Pyrenees, Lutz), but in respect of many places.; The predominant methodology in determining

whether a DoC exists is one of cautious, incremental development of principle, based on analogy

with previous cases.; One has to examine precedent cases to reveal their bases in principle and

policy.; In a novel case involving a statutory authority, the issue of Duty of Care should be

determined by answering the following:

1. Was it reasonable foreseeable that act or omission would cause injury.

2. Did D have the power to protect a specific class including P (rather than public at large).

3. was the P vulnerable.

4. Did D know (or ought defendant to have known) of risk?



5. Would duty impose liability for “core policy making” or quasi legislative” functions, if so then

NO duty

6. Are there policy reasons to deny duty?

Commence with examination of relevant legislation to discern nature of powers and expectations

of parliament.

Referred to NZ, Canadian, and English cases, esp. Stovin v Wise [1996] AC 923

Which held that the general principle is that there is no liability for a failure to exercise a

statutory power. IT made use of the public law test (like Brennan CJ in Pyrenees). The

question is whether it would have been “irrational for the Council to decide not to exercise its

power?”

He held that the current case was similar to Pyrenees, Lutz & Crimmins in the following areas:

1. Powers have objects which include “public health”

2. P was vulnerable.

3. Council knew there were problems.

The case is unlike Pyrenees, Lutz & Crimmins because:

4. Duty is claimed to be towards “consuming public generally” not identified individuals

5. The problem was not at a known problem site, but in respect of many unknown sites

6. The council was not in a position to prevent contamination, only minimize it.

7. The issue of a breach raises complex issues as to priority of allocation of council resources.

8. Causation problems…which source of contamination caused the P’s illness?

9. Cost of identifying and eliminating all sources of contamination is too onerous.

It was foreseeable that injury would occur if the Council didn’t exercise its powers, but

foreseeability alone is not sufficient for a Duty of Care.

Proximity is not a necessary element of a duty in all cases (Hill v Van Erp) however, it is a

useful concept. In Pyrenees, Lutz and Crimmins the relationship between the P and the public

authority was much closer than in this case.

There are several considerations, on policy grounds which render it unfair, unjust and

unreasonable to impose a duty:

1 Indeterminate class of Ps



2 Duty to “minimize” contamination too vague and uncertain a concept.

3 Indeterminate nature of the burden on the council because of the non-specificity of the

sources of contamination.

4 Question of cost and ordering priorities.

Kiefel J’s reasoning on the issue of a Duty of Care was similar.

Lee J dissenting would have imposed a duty on the council on the facts.

Highway Authorities

The old rule was that statutory authorities were not liable for non-feasance in their role as

highway authorities. (Gorringe v Transport Commission (1950) 80 CLR 357

and Buckle v Bayswater Road Bd)

Hughes v Hunters Hill Ccl NSW Ct of Appeal held that the Gorringe rule

survived the decision in Sutherland v Heyman

Ghantous v Hawkesbury Shire Council HCA June 2001, the plaintiff

tripped and fell due to a depression in the footpath. The question was whether the defendant

owed Mrs Ghantous a Duty of Care.

Brodie Shire Council v Singleton HCA June 2001, the plaintiff was driving a

truck loaded with concrete across an old timber bridge, when it collapsed, and the plaintiff was

injured. He sued the council.

In both the above cases, the HC denied immunity for nonfeasance by highway authorities. The

reasoning for this was delivered in a joint judgment by Gaudron, McHugh and Gummow JJ, with

Kirby J agreeing:

In highway cases, the law of negligence has subsumed nuisance



In so far as they exclude the operation of the tort of negligence, Buckle, and Gorringe should

no longer be followed.

The relevant considerations for this are:

1. No such rule in other jurisdictions: Canada, USA, NZ, in UK matter covered by statute so

common law rule no longer applies in country of origin.

2. Decisions often turn upon capricious distinctions between misfeasance and nonfeasance,

and between what is the highway, and what other infrastructure (Examples drains, sewers) is.

3. The misfeasance or nonfeasance distinction is illusory especially on the issue of repair or

maintenance work. That is, an authority can be liable for an attempt to reduce danger, but not if

they left it is).

4. Policy questions: the purposes served by the immunity now are not those served in England

in Ages past.

5. The argument that without immunity, authorities will be subject to new indeterminate

financial hazards and scrutiny of financial and budgetary matters is not tenable. They have

insurance, and other corporations are “obliged to order their affairs to meet the rule of law.”

6. The argument that precedent demands the maintenance of immunity is not accepted: “stare

decisis…should not always trump the need for desirable change in the law.” (per McHugh J in

Perre v Apand)

7. Nuisance or negligence

8. The immunity and statute: RTA act refers to “immunities of a council in relation to a public

road” without defining the immunity. This does not have the effect of entrenching the immunity,

but rather attracts that immunity which may exist from time to time. What will replace the rule in

Buckle and Gorringe? The abolition of immunity doesn’t mean strict liability. The content and

breach of the DoC is to be determined according to the ordinary law of negligence…Wyong v

Shirt

Gleeson CJ, Hayne and Callinan JJ dissented.

In Brodie, the appeal was allowed, and the case remitted to the Court of Appeal for decision on

the issue of breach. Ghantous’ appeal was dismissed, as there was no breach of a duty by the

council.



Liability for Defective Structures

This is the liability of non-occupiers to visitors or occupiers of negligently constructed buildings.

Builders, developers, engineers, architects and local government all owe a duty of care to injured

persons. But, what of the situation where there is no physical injury, only purely economic loss

(that, is the cost of repair of defective structures).

Economic Loss

Dutton v Bognor Regis UBC [1972] 1 QB 373 It was held that the council owed

a Duty of Care to the P, and that it was liable for a failure to properly inspect faulty foundation.

Lord Denning talked of a “material loss” - the cost of repair to avert threatened injury.

Anns v Merton London Borough Council [1978] AC 728 It was held that the

council owed a Duty of Care in respect of negligently failing to properly inspect foundations.

The damage was referred to as “material.” This case relied upon Dutton. However, since this

case, the HofL has declined to follow Anns and overruled Dutton.

Murphy v Brentwood District Council [1991] AC 398, it was held that the council was not

liable in relation to faulty foundations, as there was no Duty of Care, as the loss was purely

economic.

Sutherland Shire Council v Heyman (1985) 157 CLR 424, the HC held

that the Duty of Care of a statutorily authority is dependent on the reasonable reliance of the P on

D. The P’s loss was economic.

Armidale Shire Council v Finlayson, where the P was successful against the council

because of reliance, and notwithstanding the fact that the loss was purely economic

Builders

Builders are clearly liable where an injury is caused by an undiscovered defect on ordinary

negligence principles. (Murphy v Brentwood [1991] AC 398), but of the situation

where the loss is purely economic?



Bryan v Maloney (1995) Aust Torts Reps 81-320 The P was the third owner of

a house, seven years after construction. There was extensive cracking due to the builder’s

negligence in laying faulty footings. The majority (Mason CJ, Deane, and Dawson JJ) held that:

P’s loss was purely economic.

The Duty of Care was dependent upon proximity and various factors of justice and policy which

were relevant. These were:

(a) The negligent failure by D to carry out a fundamental requirement of the original contract to

build could give rise to a Duty of Care in tort to a third party.

(b) (Policy) The question of indeterminacy is irrelevant as only the P is affected by D’s

negligence.

(c) (Policy) The purchase of a home is often the most important commercial transaction a P

would ever make, and the D is much better able to avoid, evaluate, and safeguard against a latent

defect.

(d) (Policy) it avoids the anomalous situation where the D is liable if personal injury flowed from

the negligent conduct, but not for economic loss incurred to prevent the same.

(e) There was an assumption of responsibility by D, and reliance by P.

Architects

Voli v Inglewood Shire Council (1963) 100 CLR 74, the P was injured when a

stage collapsed due to the insufficiency of the joists. The architect was held to be liable for their

negligent failure to specify proper joists. The professional is bound “to exercise due skill, care

and diligence…not an extraordinary degree of skill…but…the competence and skill usual among

architects.”

Councils

Sutherland Shire Council v Heyman (1985) 157 CLR 424, the existence of

a DoC is dependant upon reliance, and the nature of damage is relevant (purely economic loss).

Note, Brennan J dissenting.

Nervous Shock



The Nature of Nervous Shock

Jaensch v Coffey (1984) 155 CLR 549 per Brennan J it is the “sudden sensory

perception - that is by seeing, hearing or touching - of a person, thing or event, which is so

distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and

causes a recognizable psychiatric illness.”

Mt Isa Mines v Pusey (1970) 125 CLR 383 at 394 per Windeyer J, “sorrow

does not sound in damages…it is…today a known medical fact that severe emotional distress can

be the starting point of a lasting disorder of the mind.” This is because, damages are the gist of

an action in negligence, and thus, something more lasting than mere sorrow is required to allow

recovery.

Swan v Williams (1987) 9 NSWLR 172, the P was diagnosed of suffering an

abnormal grief reaction. Samuels J held that an abnormal grief reaction was not a psychiatric

illness, and so there was no claim in nervous shock. However, Priestlye and McHugh JJ held that

it was sufficient to ground a claim.

Andrewatha v Andrewatha (1987) 44 SASR 1, the P was a man who cared for

his wife who had been severely disabled in a car accident for a prolonged period of time. He

suffered a depression as a result, and sued in negligence for nervous shock. However, he was

unsuccessful, as the Court held that the depressive state was a result of the prolonged care, rather

than the shock of the accident. That is, the Court held that the illness must result from a sudden

trauma or shock. Thus, his depressive state was resultant from the prolonged stress of caring for

his disabled wife, was not nervous shock.

Recovery for Nervous Shock

Victorian Railways v Coultas (1888) 13 App Case 222 (PC) The P was a

passenger in a carriage driven by her husband. They crossed a level crossing as a train

approached. The P suffered a terrible shock and suffered a miscarriage. The Court accepted that

the reason for this was because an employee had forgotten to draw the boom gates. The Privy

Council held that in the absence of physical injury, recovery for nervous shock was barred.



This situation gradually changed, and in the 20th Century, nervous shock was actionable

regardless of physical injury.

Dulieu v White [1901] 2 KB 669 allowed for nervous shock for the fear of the

plaintiff’s own safety.

Hambrook v Stokes [1925] 1 KB 141 it was held that recovery for nervous shock

for the fear for the safety of a close relative.

Chester v Waverley (1939) 62 CLR 1, the P was a mother of a small child who

had gone missing. Employees had dug a deep trench, which had filled with water. The child had

fallen in, and had drowned. She was at the scene when the trench was dredged, and she saw the

body. She brought an action in negligence for the nervous shock she suffered. However, the HC

held that it was unforeseeable that the mother would suffer a psychiatric illness in such

circumstances.

Dooley v Cammel Laird [1951] 1 Lloyds Rep 271, a load fell from a crane the

P was operating, due to the negligence of other persons. He was aware that many of his

workmates were working directly under the crane. He was certain that he had killed many of his

workmates, and suffered a severe psychiatric illness. No-one actually died in the accident.

However, he was successful in suing his employer for nervous shock.

Mt Isa Mines v Pusey (1970) 125 CLR 383 Is another example of nervous shock

resulting from the fear of safety of others.

Chadwick v British Transport Commission (1967) 2 All ER 945, the P

lived near a railway line, and there was a dreadful train crash, in which many were killed. The P

heard the crash, and ran from his home to provide aid. He crawled into the wreckage to try and

rescue people. Whilst he didn’t affect a rescue, he talked to people and kept the calm whilst they

waited to be cut free. He wasn’t himself injured, but suffered nervous shock. He was successful

in his action against the Transport Commission.

Proximity Issues and Primary/Secondary Victims

Jaensch v Coffey (1984) 155 CLR 549, the P hadn’t been at the scene of the

accident, and she first knew of the accident when she was informed by police. She rushed to the

hospital, and saw her husband in the ICU, and had been told by hospital staff to prepare for the



worst. She thought that he would die, and suffered various psychiatric difficulties as a result. She

sued the negligent driver to recover for nervous shock. The HC held that the accident and its

aftermath were sufficient. It was held that the accident and its aftermath extended to the hospital

“up to and including immediate post-accident treatment.” The Court looked at these issues under

the banner of proximity. The Courts held that she could recover as she was reasonably

foreseeable, and because she was involved in the aftermath.

Alcock v Chief Constable [1992] 1 AC 310 This action rose out of the

Hillsborough disaster where there was a stampede after a soccer semi-final. The police had

negligently allowed 1 of the stands and the area in front of it to become grossly overcrowded.

The pen collapsed and many were crushed to death. There were 95 killed, and 400 injured as a

result. People elsewhere in the ground, and those at home saw it, as the game had been televised

live. This was a test case brought for 16 Ps, all of whom had seen what had happened, and knew

people in the stadium. Some Ps was in the stadium, knowing they had friends and relatives there.

Others had seen it on TV, and knew of people in the stadium. None of the Ps succeeded. Whilst

this was decided under the banner of proximity, there are relevant principles still to be extracted.

Lord Oliver held that primary victims “involved either mediately or immediately as a

participant.” A secondary victim was “no more than the passive and unwilling witness of injury

caused to others.” He emphasized that this distinction was merely a label, and not a rule of law.

It was held that all the Ps in this case were secondary victims. In order for a secondary victim to

succeed in a nervous shock, it was held that the following criteria had to be fulfilled:

1. The P must have close ties of love and affection to the victim. This will be presumed in some

situations (e.g. spouses, parent/child) and will have to be proven by evidence in other cases.

2. The P must have been present at the accident, or its aftermath, and witnessed it through the

p’s own unaided senses.

3. The psychiatric injury must have been caused by direct perception of the accident or its

immediate aftermath.

The HofL held that the duty did not extend to those who saw the accident on TV or to the

morgue afterwards. It was held that there was “no pressing policy need” to extend recovery as



there is “no logical stopping point…where the elements of immediacy, closeness of time and

space and direct visual or aural perception are absent.”

White & Others v the Chief Constable of South Yorkshire H of Lords

3.12.1998, the police brought an action for nervous shock from the events of Hillsborough.

The H of L held that the police were not rescuers, but gave assistance to the injured. The police

were never in physical danger themselves. Further, it was held that they weren’t rescuers, as they

were doing their jobs. Thus, they were unsuccessful on this ground. They further argued that the

police were employees, and therefore they were ‘primary victims’ because of the duty owed to

them by their employer, but the ordinary principles for the recovery for nervous shock still

applies. That is, Alcock control mechanisms, and thus, they did not succeed. Further, two policy

grounds were enunciated to deny liability and these were firstly, a question of whether the police

should recover where the victims of the deceased did not and secondly the risk of a wide scope

of potential liability for psychiatric harm.

Coates & Anor v GIO of NSW (1995) 36 NSWLR 1 Kirby P held that recovery

for nervous shock is not precluded merely by the fact that the deceased’s children were not in the

sight or hearing of the accident or its aftermath. He held that the law should recognise that “it

is…the direct emotional involvement of a P in an accident” that is relevant to nervous shock.

The factors relevant to a Duty of Care in Australia for nervous shock today are:

1. Reasonable foreseeability of nervous shock injury

2. Recognised psychological illness

3. Sudden shocks

4. Involvement in an accident or aftermath.

5. Close ties of love and affection to victim(s).

Morgan v Tame [2000] NSWCA 121 12 May 2000 The Respondent was

involved in a car accident. In the course of investigating the accident, a "P4 Report" was

completed by the Police. The P4 Report had been incorrectly filled out and showed the

Respondent as having a blood-alcohol reading of 0.14. That was the reading of the other driver

involved in the accident. The correct reading for the Respondent was nil. The Respondent was



informed of the error by her solicitor. Subsequently she was told by the Police that the entry was

a mistake and that it had been corrected. Notwithstanding that the Respondent was informed that

all parties knew that the P4 Report had been filled out incorrectly, she developed a psychotic

depressive illness. It was held that it was not reasonably foreseeable that a person would develop

a psychiatric illness due to an error in filling out an accident form.

Annets, the P was not successful, as there was no sudden shock, and had not been involved in

the accident or the aftermath.

However, the above two cases have been granted special leave to appeal to the HC, so this is not

settled law.

Quayle v State of New South Wales [1995] Aust Torts Reports 81-

367, the Ps was the mother and two brothers of an aboriginal man who hung himself in

prison. He had been suffering from severe depression, and alcohol withdrawal symptoms, and

thus, the brothers took him to Broken Hill Hospital. The hospital handed him over to the police,

who unlawfully detained him, at which time he hung himself. A police officer ran into a brother,

and told him that his brother had hung himself. The police asked the other brother to identify the

body on a public street, as they were taking him to the hospital morgue. All plaintiffs were

successful, as a single judge of the District Court held that third party communication should be

compensable.

Section 4 of The Law Reform (Miscellaneous Provisions) Act 1944 provides liability…(for)

injury caused…by an act neglect or default by which a…person is killed injured or put in peril

shall extend to…nervous shock sustained by…

(a) A parent or the husband or wife of the person killed etc….

(b) Any other member of the family where such a person was killed (etc), “within the sight or

hearing of such member of the family.”

Note Kirby P’s judgment in Coates v GIO. This legislation does not deny a P the right to

rely on the c. law, but the question has been left open by the HC in Jaensch v Coffey.

Negligent Misstatement

Derry v Peak It was held that P could only recover where the misstatement was fraudulent.PREPARED BY Mr. OKIYA JIMMY JANSKY


Candler v Crane Christmas Lord Denning dissenting held that the D, an accountant

owed a duty to a third party who he or his employer may show the accounts to. This duty

extended to persons who used the accounts for any transaction for which the accountant knew

they were prepared.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 4652, the

majority of the HofL preferred Lord Denning’s approach in Candler v Crane. The plaintiffs were

advertising agents who placed ads for their clients Easy Power. They would provide the money

required, and recover the expenses from the client later. They requested a credit report on Easy

Power from the bank, which they provided. However, there was a disclaimer, which excluded

liability. In obiter, the HofL held that if:

(1) “In a sphere in which a person is placed…

(2) That others could reasonably rely upon his judgement or skill…

(3) A person takes it upon himself to give information or advice…or allows his information or

advice to be passed on to another person

(4) Who…he knows or should know will place reliance upon it,

(5) Then a duty of care arises.”

Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556

Evatt wished to invest in a subsidiary of MLC’s and asked MLC’s advice regarding whether it

was a viable investment. MLC stated that it was, and Evatt invested in the company. However, it

went backrupt, and Evatt sued MLC. The question was whether MLC owed a duty of care. The

HC found that there was DoC, and applied Hedley Byrne v Heller. Barwick CJ held that

the D is liable, notwithstanding a lack of a special skill. A willingness to proffer the information

was sufficient. However, the PC held that there was no DoC where there is no specialized skill.

Shaddock v Parramatta City Council (1981) 36 ALR 385, the P’s solicitor

called Parramatta Council to determine whether there were any road widening proposals. They

also sent a written request for the information. The Council stated that no such plans existed.

This was a misstatement, as the clerk filling out the form had neglected to check whether any

proposals were proposed. There were road widening proposals for both roads on which the

property Shaddock bought, and thus, the zoning was no longer commercial (the property was too



small). Thus, they sued the council. Each of the five justices of the HC held that they preferred

Barwick CJ’s view in MLC v Evatt that no specialized skill is required in itself, but rather, it

is a factor in determining whether there was reasonable reliance. Gibbs CJ held that the principle

of reasonable reliance “would…accord with general principle that a person should be under NO

duty to take reasonable care that advice or information he gives is correct unless:

(1) He knew or ought to know that the other relies on him to take such reasonable care

(2) And may act in reliance on the advice or information…

(3) And unless it would be reasonable for that other person so to rely and act.

San Sebastian Pty Ltd v Minister Administering the Environmental

Planning and Assessment Act (1986) 162 CLR 340 The P was a property

developer who saw plans published by Sydney City Council and the EPA about the

redevelopment of Wooloomoloo. It wasn’t a final plan, and nor did it state that these plans would

be put into effect. The developer bought property in Wooloomoloo on the basis of these plans.

However, they were dropped. San Sebastian sued the council and the EPA arguing that they had

been negligent in preparing and publishing the plans. The Court looked at the scope of the Duty

of Care, and to whom it was owed. It was held that the D was not liable on the basis that:

(1) It is necessary that the D intends that P (or a class of persons of whom P is one) should act

on the statement

(2) And D must make the statement with the intention of inducing P in reliance on the

statement to act or refrain from acting in a particular way

(3) In circumstances where defendant would realize that economic loss would be suffered if the

statement were incorrect.

In the case of Caparo Industries Plc v Dickman [1990] 2 AC 605, the HofL

took a narrow view of a Duty of Care. The auditors of a company were negligent in preparing

accounts which were relied upon by a potential investor who bought lots of shares on the basis of

those accounts. The company folded, and the investor sued the auditor. The HofL held that no

duty existed, where the defendant has no specific knowledge of the transaction in respect of

which the plaintiff relies on the information or advice. They further look at the purpose for which

the information is given.



Similarly in the case of R Lowe Lippman Figdor &Frannck v AGC Advances

Ltd (1992) VR 671 It was held that a Duty of Care doesn’t exist merely because the D

knows that the information will be communicated to the P. The D must make the statement with

intent to induce the P to rely on and act upon it.

In the case of Esanda Finance Corporation Ltd v Peat Marwick

Hungerfords (1997) 71 ALJR 448 Peat was a very large firm of chartered

accountants, who were the auditors of a company. Esanda was a finance company which lent a

large sum of money to an organization by the name of Excel on the basis of the audited accounts

provided by Peat Marwick, who handed over a copy of the accounts to Esanda. Excel goes

bankrupt, and Esanda commenced proceedings in the SASC, and Esanda submitted a statement

of claim stating that Peat Marwick owed a duty of care, and it did not include that Peat had made

the statement with the intent of inducing Esanda to rely on it. The Ds sought to have the

statement of claim struck out as a proper cause of action had not been disclosed. The appeal to

the HC was regarding the strke-out application. The question was whether Esanda had disclosed

a proper cause of action - whether they had pleaded all the elements of the action. The HC

provided separate judgments.

Brennan CJ held that the P must prove that:

A. D knew or ought reasonably to have known that the information or advice would be

communicated to the P

B. And that information or advice would be communicated for a purpose which would be “very

likely to lead P to enter into a transaction”

C. And it would be “very likely that P would enter into such a transaction in reliance on that

information” and thereby risk economic loss.

Thus, Brennan CJ held that there was no duty.

Dawson J held that there is a requirement for proximity and reasonable reliance. Where there is

no request from the P, the D must intend to induce the P to act. He adopts the “purpose” test in

Caparo. (No duty)



Gummow J held that the intention must extend to knowledge that something will happen as a

virtual certainty. But, gives no general rule, as it would be inappropriate on a strike out

application (No duty)

McHugh J held that intent to induce reliance of P is not a necessary element as there may be a

request for information, or an assumption of responsibility or other factors (not specified) which

give rise to a Duty of Care. Policy considerations such as increased cost of auditing, decrease in

competition, reduction in the standard of services, cost of insurance, fair and efficient loss

absorption, and that the fault of the auditor is only a secondary cause of loss means that no duty

exists. Gaudron and Toohey JJ held that the “law has not yet developed to a point permitting

precise definition or description.”

In the case of Tepko v Water Board HCA 5 April 2001 Tepko owned a lot of land

in Western Sydney. The company wanted the land rezoned in order to subdivide it into

residential property. They required water and sewerage facilities to be connected. They borrowed

a very large amount of money in Swiss Francs in order to get this done. There was difficulty in

getting the land rezoned, and thus, in making payments. The bank requested an estimate for the

cost of the connection. The Water Board refused. The P lobbied local members of the NSW

Parliament, and persuaded a local member to approach the Minister for Natural Resources for the

information. The member gets a letter from the minister which gives an estimate of 2/1/2 million

dollars. The bank puts the company into liquidation and appoints a receiver, as it believes that

the company can never pay back the money. The letter is from the Minister to the MP. The figure

is wildly inaccurate, and the true estimate is less than a million. The P sues the Water Board

arguing that its negligence caused the bank to put the company into liquidation. The majority of

the HC (Gleeson CJ, Gummmow & Hayne JJ in a joint judgment, & Gaudron J) held that the

Water Board did not owe Tepko a DoC. The majority:

A. Referred to Barwick CJ in Evatt and San Sebastian and held that:

(1) The speaker must/ought to realize that the recepient intends to act on the information.

(2) It is reasonable in all circumstances for the recipient to accept and to rely on the utterance of

the speaker.



B. Referring to case of Perre v Apand, significant matters for the existence of a Duty of

Care include:

(3) Foresight of the likelihood of harm

(4) Knowledge or means of knowledge of an ascertainable class of vulnerable persons.

The minority (Kirby and Callinan JJ in a joint judgment and McHugh J) imposed a DoC because:

D had a monopoly on the information.

The P trusted the D to make a proper estimate.

D knew that in due course P is likely to be in a close business relationship with the D.

Omissions

Generally, liability is incurred only for an action, not for failing to act. A pure omission is not

tortious. A pure or mere omission is where the failure to act is the only conduct causally linked

to the P’s loss. Where an omission takes place in the course of a larger activity, it is not a mere or

pure omission, and it is actionable.

In some circumstances, there will be a legally recognised pre-existing duty to take positive

action, (Example occupier of land). In the case of Hargrave v Goldman (1963) 110

CLR 40 the D was a farmer who had a huge property in WA. A very large tree was struck by

lightning and caught on fire. The farmer, when he became aware of it, took tankers of water out

to it, chops it down, and sprays the water over it. It smoulders for a couple of days, after which it

flared up again, destroying both his and his neighbour’s property. The neighbours sued the

farmer arguing that a Duty of Care existed. The HC agreed, stating that there is a duty “to

exercise reasonable care where there is a fire upon his land (although not started or continued by

him) of which he knows or ought to know, if by the exercise of reasonable care, it can be

rendered harmless or its danger to neighbours diminished. On appeal to the PC, the PC went

further than the HC and stated that “the development towards a measured duty of care by

occupiers to remove or reduce hazards to their neighbours…the standard ought to require of the

occupier what it is reasonable to expect of him in his individual circumstances.”



In the case of Geyer v Downs (1977) 138 CLR 91 A student who goes to school

early is hit over the head with a softball bat by another student. The principal knew that students

arrived early, and omitted to provide supervision. The HC held that as the students are the pupils

of the school, by virtue of the relationship, the school had a duty to refrain them from hurting one

another.

Smith v Leurs (1945) 70 CLR 256, the defendants were the parents of a thirteen

year old boy that fired a stone at another child, using a slingshot, damaging his eyesight. The HC

held that the parents owed a DoC to control their son. However, it was held that they had not

breached their duty, as the parents had forbidden the boy from using it in the general direction of

other people.

Wormald v Robertson [1992] Aust Torts Reports 81-180 Demonstrated

that a publican who knew of the drunken state of a patron who assaults another patron, is liable.

The publican owes a Duty of Care to their patrons that they restrain the drunk from assaulting

them.

L v The Commonwealth (1976) 10 ALR 269 There is a duty upon prison

authorities to separate remand prisoners from convicted, violent prisoners, to ensure their safety.

Lounds v Woods (1996) Aust Torts Reps 81-376, the plaintiff was a young

epileptic man who was on holiday with his parents near Terrigal. He suffered an epileptic fit, and

the mother remembered that there was a doctor up the road. She sent the daughter to call on the

doctor, who refused to come, as he was too busy. The mother also called an ambulance, but the P

had suffered irreversible brain damage by the time it had arrived due to oxygen deprivation.

Evidence was adduced that had the doctor arrived at the time he was asked to, he could have

stopped it by administering a normally available drug. Kirby and Priestle JJ found that the doctor

owed a DoC due to his circumstantial proximity, and the societal and policy consideration, which

lay an expectation upon doctors that they come to people’s aid. However, there is no requirement

of a general duty to rescue.



Rescuers

The Duty of Care owed to rescuers is independent of the duty owed to the person put in peril.

Haynes v Harwood (1934) All ER 103) - the position used to be that the duty owed

to rescuers was dependant upon that owed to the rescuee.

Videan v British Transport Commissioner [1963] 2 All ER 860 It was held

that whether the rescuee was a trespasser, or guilty of contributory negligence is irrelevant in

regard to the duty owed to the rescuer, which is independent.

Horsley v Maclaren (“The Ogopogo) [1971] 2 Lloyds Rep 410, a

passenger fell from a yacht due to his own fault, and the owner’s unsuccessful maneouvres

prompted another passenger to jump after him. The owner (if found negligent) would have been

responsible for the drowning of the second.

The duty owed to rescuers is based on their foreseeability. This is aptly demonstrated in

Chapman v Hearse (1961) 106 CLR 112.

Crossley v Rawlinson (1981) 3 All ER 675, the plaintiff was an Automobile

Association man who saw the D’s truck on fire on the other side of the road. The tarpaulin hadn’t

been properly affixed the tarpaulin, causing it to drag across the road surface, sparking off a fire.

The P tripped on a manhole, and injured himself. It was held that he wasn’t owed a Duty of Care,

as it wasn’t foreseeable that he would trip over and hurt himself.

Harrison v British Railways [1981] 3 All ER 679 The railway employee ran to

catch the train and was hanging on to the moving train. The guard leans out to pull him in and

they both fall out. The duty was still owed to the rescuer. The guard should have pulled the

emergency stop leaver so there was a 20% reduction of damages.

The argument of volenti has been refuted on the basis that the duty thrust upon the rescuer in an

emergency, whether legal or moral intercedes to exclude all real choice, regardless of the rescuer

being a volunteer or a professional.

Baker v Hopkins [1959] 3 All ER 225, the P was the executor of the estate of a

doctor, who went down a well to rescue workers who had been overcome by fumes. He too was

overcome by the fumes, and died. It was held that he was owed a Duty of Care by the employer,



and the Court held that there was no contributory negligence, as the P’s actions must be judged

in the emergency that existed.

Pure Economic Loss

There is no longer blanket exclusion for recovery on the basis of purely economic loss in

Australia. This is still the case in England.

Weller & Co v Foot & Mouth Disease Research Institute [1966] 1 QB

569 The D was the F&M, whose negligence allowed F&M disease to escape. The cattle in the

area were affected. The farmers had to kill their cattle. The Plaintiffs were stock engineers and

stock yards, who made huge losses, when the stockyards were closed as a result of the outbreak.

They sued the institute. However, the Court refused to impose a duty of care to purely economic

loss. This was based purely on the following policy reasons:

(a) Indeterminate liability

(b) Disproportion between the D’s liability and the extent of culpability

(c) Concurrent duties in tort and contract

(d) The need for certainty in the law

(e) The effect of insurance.

Caltex Oil (Aust) Pty Ltd v the Dredge “Willemstad” (1976) 136 CLR

529 Caltex had an oil depot on the shores of Botany Bay. The Oil Refinery was owned by the

Australian Oil Refinery, across the bay. They built a pipeline under the bay from the refinery to

Caltex. The Willemstad ran over and smashed the pipeline due to the master’s negligence. The

oil could no longer be passed through the bay, and Caltex had to pay for trucks to go around the

bay to collect the oil. The pipeline was owned by the refinery, and so, Caltex sued on the basis of

purely economic loss, and was successful. The HC held that the general rule is that damages are

not recoverable for economic loss which is NOT consequential upon injury to person or

property. Foreseeability alone is not sufficient to allow for recovery. In exceptional cases, where

the D has knowledge or means of knowledge that P individually, or P as an ascertained member

of a class (and not merely a member of an unascertained class) is likely to suffer economic loss,

the D will owe a Duty of Care. The Court held that it would not formulate a principle that would



cover all cases in which a duty is owed…all facts of a particular case must be considered (Gibbs

J). Stephen J held that policy considerations are also relevant.

Each of the justices delivered a separate judgment, and there is no discernable single ratio. In

Mitsui OSK Lines Ltd v The Ship ‘Mineral Transporter’ (1983) 2

NSWLR 564; (1986) AC 1 (PC) The Supreme Court applied Caltex however, the PC

applied the no recovery test, and was scathing in its criticism of Caltex. However, no attention

has been paid to the PC’s criticism.

The cases after Caltex have shown the difficulty of applying it.

Ball v Consolidated Rutile Ltd (1991) 1 QdR 524, the P was a professional

prawn trawler, who trawled in the bay. The D was a sand mining company, who allowed a larger

sand dune to slip into the bay, causing lots of pollution and debris, which caused the D’s

business to suffer. However, the P failed, as they could not demonstrate that the D knew of the

Ps individually, or as members of an ascertained class.

Christopher v MV ‘Fiji Gas’ (1993) Aust Torts Reps 81-202 The Ps were

crew members of the Antonia which was damaged as a result of the negligent navigation of the

Fiji Gas which ran into the Antonia. The Ps sued for loss of income. But, the Plaintiffs were

unsuccessful, as the Court applied Caltex’s distinction between ascertained and unascertained

classes. The Court held that the distinction was “not very satisfactory” but there was no

alternative test. The difficulty was at the margins in differentiating between ascertained and

unascertained classes. It was held that Plaintiffs were members of an unascertained class.

Hawkins v Clayton (1988) 164 CLR 539 Hawkins was the executor of a client and

also a beneficiary. Clayton had prepared a will, and kept it in safe-keeping in the offices. They

did not realize that the client had died, and the will remained in the offices, until Clayton retired,

at which time, a solicitor realised the mistake. The property was now worth considerably less.

The Court held that they could have found the P easily had they checked. The question was

whether Clayton owed a duty of care. This was determined on proximity principles. It was held

that in cases of pure economic loss, the relationship of proximity will be characterized by some

additional element which will commonly, but not necessarily consist of known reliance or the



assumption of responsibility. It was held that the factors determinative of the existence of

proximity vary in different categories of cases. It was held that Clayton owed a DoC.

Bryan v Maloney (1995) 69 ALJR 375, the Ps loss was held to be the cost of

repairing the faulty footings. The courts looked at significant policy considerations. It was held

that cases of mere economic loss are special, and they commonly involve “an identified element

of known reliance…or the assumption of responsibility or a combination of the two.”

Perre v Apand (1999) 73 ALJR 1190, the P was a potato farmer in S.A. and they

shared a boundary with a property to whom the D’s supplied seed. The D negligently supplied

seed infected with bacterial wilt. Whilst the P’s crop was unaffected, they suffered economic

loss, as their main market was W.A, which had a statute which prohibited the importation of

potatoes “grown, harvested, brushed or packed” within a 20 km radius of the affected property.

The D knew of the existence of this statute. The HC referred to and approved Caltex stating that

there is no general rule that there is a Duty of Care not to cause reasonably foreseeable financial

harm. However, there are circumstances where recovery for pure economic loss is available. The

major policy considerations in this arena are the need to avoid indeterminate liability, and a need

to avoid making ordinary commercial activity tortious. The Court held that they were members

of an “ascertained class” and the D knew, or had the means to know who the members of the

class were at the time of the negligent act. It was held that just because the class is large, does not

mean that liability is indeterminate. The P’s vulnerability was an impornant factor (Gleeson CJ,

McHugh, Gummow, Kirby and Callinan JJ)

Gleeson CJ:

1. Favours an incremental development of the law

2. The Caparo test relies on concepts which are imprecise

3. The P’s vulnerability, propinquity, control exercised by defendant are all important factors.

4. Defendant had knowledge of an “ascertainable class of vulnerable persons.”

Gaudron J held that categories of case - protection of legal rights - a discrete category of liability

for pure economic loss.

Mchugh J:

1. Caparo test relies on concepts which are indeterminate and imprecise.



2. No duty merely because defandant impairs a “precise legal right.”

3. Incremental approach is the most satisfactory.

4. Reliance and assumption of responsibility are indicators of plaintiff’s “vulnerability.”

5. The degree and nature of “vulnerability sufficient to found a duty will vary from category to

category and case to case.

Gummow J:

A. Doesn’t favour “the imposition of fixed categories”

B. Prefers the approach of Stephen J in Caltex - “salient features” which combine to constitute a

sufficiently close relationship to give rise to a duty.

C. The salient features of this case are that the defendant knew of the risk to the plaintiff,

defendant had control of the risk, and plaintiff had known power to protect them.

Kirby J:

D. Still favours Caparo test.

E. Finds a DoC on a 3 stage test:

(a) Reasonable foreseeability

(b) Proximity factors: vulnerability, geographical proximity.

(c) Policy

Hayne J:

1. Favours an incremental development

2. Factors important in recognizing a Duty of Care in economic loss cases are indeterminate

liability, allow commercial dealings defendant’s act of importing seed to SA was illegal had it

been done deliberately.

Callinan J:

A. Favours incrementa development.

B. Factors which in comb. Est. proximity includes:

(1) D was in control

(2) P member of a determinate class

(3) Geographical propinquity

(4) Commercial propinquity



(5) P powerless to abate/prevent loss.

(6) No impediment to ordinary commercial activity

Economic Loss Connected to Injury to Person/Property

Economic loss connected to injury to person or property is recoverable dependent upon questions

of causation and remoteness of damage.

SCM v Whittal [1971] 1 QB 337, the plaintiff conducted a manufacturing business,

which suffered due to the negligence of an electrical contractor, who severed a cable which cut

power to the factory. This destroys goods which were in the course of production. The plaintiff

recovered the value of the damaged goods, and profit which would have been made on sale of

damaged goods. However, the defendant wasn’t liable for other profits lost by plaintiff solely by

reason of disruption to production e.g. goods which might have been for disruption. This later

damage was held not to be recoverable, as it was not caused by the damage to property.

Spartan Steel & Alloys v Martin [1973] QB 27, the P failed to recover lost

profits not consequential upon damage to the plaintiff’s property.

Death

At common law, the death of one person has never been regarded as an injury to another. At

common law, actio personalis moritur cum persona means that if the victim or tortfeasor dies

prior to judgment, the action perishe as well. However legislative reform allows for the survival

of a cause of action to the estate of the deceased. Some causes of action and heads of damage are

excluded.

S 2 of the Law Reform (Miscellaneous Provisions) Act states that “all causes of action shall

survive against or… for the benefit of the estate.” Except defamation, seduction inducing a

spouse to leave damages recoverable does not include:

A. Exemplary damages

B. Damages for loss of earnings or earning capacity where death is caused by D’s act, damages

calculated without reference to loss or gain to estate consequence upon death



Where death is caused by defendant’s act, no damages are awarded for pain or suffering or

mental harm, or for loss of expectation of life.

One amount is awarded and then, apportioned amongst claimants as the Court thinks fit. The

basic principle is that dependants are to be compensated for pecuniary loss resulting from the

death: either actual, or prospective.

Parker v the Commonwealth held that damages “should be calculated in reference to

a reasonable expectation of pecuniary benefit…from continuance of the life.”

S 3(1) states that “when…the death of a person is caused by a wrongful act…and the act is such

as would (if death had not ensued) have entitled the party injured to maintain an action and

recover damages…then…the person who would have been liable…shall be liable to an action for

damages…”

S 3(2) states that funeral expenses can be recovered.

S 3 (3) in assessing damages, insurance, superannuation, pension payable as a result of death

are not taken into account.

S 4 allows an action to be brought for the following relatives: wife, husband, brother, sister

(including half brothers and sisters), parent, child, de facto spouse of deceased.

S 7 (definitions) defines parent to include grandparents step parents, person “in loco parentis’,

and child includes grandchild, stepchild.

The Stella [1900] P 161 the widow of a man, who died in a shipping accident, where he

drowned, brought an action on his behalf. He had been a paying customer; however, an exclusion

clause excluded liability for death or injury. The Court held that the exclusion clause was valid,

and thus, the widow had no action under Lord Campbell’s Act as the deceased would have had

no action, had he survived.

Nunan v Southern Railways [1924] 1 KB 223 A widow was held to have a cause

of action where the ticket of the deceased limited liability. The widow’s damages were not

limited because her action under legislation was new and separate from the personal contract

between the deceased and the railway company.

The wrongful act causing death need not be tortious.



Woolworths v Crotty (1942) 66 CLR 603 Mr Crotty was killed by a faulty light

globe he bought at Woolworths which electrocuted him. It was held that the “wrongful act”

could be a breach of an implied term in the contract.

The relatives are required to establish that the wrongful act caused death.

Haber v Walker [1963] VR 339 Haber was involved in a serious car accident, which

rendered him very disabled. He also suffered a severe depressive illness caused by the accident,

leading him to commit suicide. The relatives sued the negligent driver. The D argued that the

causal connection had not been established between the accident and the suicide. Ultimately the

Court found for the widow, holding that it was the accident which caused the severe depressive

illness, which caused the deceased to commit suicide.

Under s 10 (4) of the Act, contributory negligence will not affect the relatives claim. This is

subject to s75 of the MAA and s 151N (5) of the Workers Comp Act.

McIntosh v Williams [1979] 2 NSWLR 543, holds that the action is brought by the

legal personal representative of the deceased - either the executor or the administrator of the

estate. This person brings the action on behalf of all entitled victims.

Concurrent Liability

Concurrent liability occur where more than one tortfeasor is negligent and causes plaintiff’s

damage.

The different types of tortfeasors include joint tortfeasors, several concurrent tortfeasors and

several tortfeasors causing different damage.

Joint tortfeasors are where more than one party acts together and jointly cause plaintiff’s

damage. This includes:

A. Vicarious liability

B. Agency

C. A duty imposed jointly e.g. two occupiers jointly liable to the injured P.

D. Where two or more defendants take concerted action to a common end e.g. author, publisher,

and printer of defamatory material.



Traditionally at common law, the rule in Merryweather v Nixon 101 ER 1337 one

tortfeasor could not recover any contribution from another. This position has been abolished by s

5 of the Law Reform (Miscellaneous Provisions) Act 1944. This allows a concurrent tortfeasor

(whether joint or several) to recover from the others a contribution to the damages paid to the

plaintiff.

The contributions legislation is:

A. Only applicable in tort, and not in contract or other areas.

B. The contribution can be claimed by “any tortfeasor liable in respect of damage” so this

includes a defendant who has settled a claim, not only one against whom a judgment has been

entered.

A Contribution can only be claimed from a defendant who has contributed to the “same damage”

that is, joint or several concurrent tortfeasors.

B The contribution can be claimed from a defendant who “is or would if sued have been liable”

so it is immaterial whether the P actually sues all defendants or that contribution proceedings are

brought after the plaintiff’s claim would be statute barred.

C The contribution recoverable in terms of amount is “such as may be found by the court to be

just and equitable having regard to the extent” of the defendant’s responsibility for the damage.

D Under the leg’n a tortfeasor can join another tortfeasor to the proceedings.

Lister v Romford Ice and Cold Storage [1957] AC 555 the plaintiff was the

employee of Romford Ice, who was injured due to the negligence of a fellow employee - his

father. The p sued the employer for vicarious liability for the employee’s negligence. The

plaintiff is awarded damages, and then, the employer sues the negligent employee for

contribution to damages, and receives 100% contribution from the employee. S 3 of the

Employees Liability Act 1991 states that the joint tortfeasor rule does not apply to a

situation which is comparable to Lister.

SAMPLE QUESTIONS ON NEGLIGENCE

QUESTION ONE

a) Discuss the term Negligence as understood in Law.



b) Discuss the various ingredients of proving Negligence in a court of Law.

c) Examine the possible defences one may point to avoid liability for the wrong of Negligence.

QUESTION TWOWhat is the theoretical difference between causation and remoteness?QUESTION THREECan you think of any situations in which the ‘but for’ test might be an inadequate device for settling disputes concerning causative links?

PRACTICAL QUESTION FOURDavid leaves an old paraffin lamp burning in his garden shed, where there is a strong draught. As a result fire starts, and spreads rapidly. This fire combines with another fire, the source of which is unknown, and the fire produced by this combination threatens Penny’s house, which is located a quarter of a mile away. Penny is holding a garden party at the time, and a general panic ensues. Richard, the butler, drops a tray containing rare antique glasses, one of which cuts the arm of Ben, a haemophiliac, who bleeds to death before hospital treatment can be obtained. Penny’s house is destroyed in the conflagration. Advise David, on his liability in tort, if any.

UNIT TWO: STRICT LIABILITY

INTRODUCTIONIn most of the torts we have dealt with so far, we have seen that either intention or negligence

has been essential condition of the defendant’s liability. We will not discuss wrongs in which

there is stricter liability that in others and where a much higher standard of care is required than PREPARED BY Mr. OKIYA JIMMY JANSKY


in ordinary torts of negligence, in other words where the defendant is liable for any damage

which may result from his or act act independent of the existence of either intent or negligence.

The most important of such cases of strict liability is the rule in Rylands v Fletcher 1868. The

rule in this case is the most-often quoted example of strict liability. Basically it states that:

an occupier of land who brings onto it anything likely to

do damage if it escapes, and keeps that thing on the land,

will be liable for any damage caused by an escape

Rylands v Fletcher [1868] UKHL 1 was a decision by the House of Lords

which establishes a new area of English tort law. Rylands employed contractors to build a

reservoir, playing no active role in its construction. When the contractors discovered a series of

old coal shafts improperly filled with debris, they chose to continue work rather than properly

blocking them up. The result was that on 11 December 1860, shortly after being filled for the

first time, Rylands's reservoir burst and flooded a neighbouring mine, run by Fletcher, causing

£937 worth of damage. Fletcher brought a claim under negligence, through which the case

eventually went to the Exchequer of Pleas. The majority ruled in favour of Rylands; however,

Bramwell B, dissenting, argued that the claimant had the right to enjoy his land free of

interference from water, and that as a result the defendant was guilty of trespass and the

commissioning of a nuisance. Bramwell's argument was affirmed, both by the Court of

Exchequer Chamber and the House of Lords, leading to the development of the "Rule in

Rylands v Fletcher" that;

"the person who for his own purpose 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".



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This doctrine was further developed by English courts, and made an immediate impact on the

law prior to Rylands, English courts had not based their decisions in similar cases on strict

liability, and had focused on the intention behind the actions rather than the nature of the actions

themselves. In contrast, Rylands imposed strict liability on those found detrimental in such a

fashion without having to prove a duty of care or negligence, which brought the law into line

with that relating to public reservoirs and marked a significant doctrinal shift. Academics have

criticised it, however, both for the economic damage such a doctrine could cause and for its

limited applicability.

The tort of Rylands v Fletcher has been disclaimed in various jurisdictions, including

Scotland, where it was described as "a heresy that ought to be extirpated", and Australia, where

the High Court chose to destroy the doctrine in Burnie Port Authority v General

Jones Pty Ltd. Within England and Wales, however, Rylands remains valid law, although

the decisions in Cambridge Water Co Ltd v Eastern Counties Leather plc

and Transco plc v Stockport Metropolitan Borough Council make it clear

that it is no longer an independent tort, but instead a sub-tort of nuisance.

Facts

In 1860, John Rylands paid contractors to build a reservoir on his land, intending that it should

supply the Ainsworth Mill with water. Rylands played no active role in the construction, instead

contracting out to a competent engineer. While building it, the contractors discovered a series of

old coal shafts and passages under the land filled loosely with soil and debris, which joined up

with Thomas Fletcher's adjoining mine. Rather than blocking these shafts up, the contractors left

them. On 11 December 1860, shortly after being filled for the first time, Ryland’s reservoir burst

and flooded Fletcher's mine, the Red House Colliery, causing £937 worth of damage. Fletcher

pumped the water out, but on 17 April 1861 his pump burst, and the mine again began to flood.

At this point a mines inspector was brought in, and the sunken coal shafts were discovered.

Fletcher brought a claim against John Rylands, the owner, and Jehu Horrocks, the manager of

Rylands' reservoir on 4 November 1861.



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http://en.wikipedia.org/wiki/Cambridge_Water_Co_Ltd_v_Eastern_Counties_Leather_plc

http://en.wikipedia.org/wiki/Burnie_Port_Authority_v_General_Jones_Pty_Ltd


http://en.wikipedia.org/wiki/High_Court_of_Australia

http://en.wikipedia.org/wiki/Strict_liability


Judgment

Liverpool Assizes

The tort of trespass was inapplicable, because the law at the time did not class one-off events as

"trespass"; an action was instead taken under the tort of nuisance. The case was first heard by

Mellor J and a special jury in September 1862 at the Liverpool Assizes; a court order led to an

arbitrator from the Exchequer of Pleas being appointed in December 1864. The arbitrator

decided that the contractors were liable for negligence, since they had known about the old mine

shafts. Rylands, however, had no way of knowing about the mine shafts and so not liable.

Exchequer of Pleas

The case then went to the Exchequer of Pleas, where it was heard between 3 and 5 May 1865. It

was heard on two points. Firstly, whether the defendants were liable for the actions of the

contractors and secondly, whether the defendants were liable for the damage regardless of their

lack of negligence. They decided for the first point that the defendants were not liable, but more

split on the second point. Pollock CB, Martin B and Channell B held that the defendants were

not liable, as since a negligence claim could not be brought there was no valid case. Bramwell

B, dissenting, argued that the claimant had the right to enjoy his land free of interference from

water, and that as a result the defendant was guilty of trespass and the commissioning of a

nuisance. He stated that

"the general law in matters wholly independent of

contract" should be that the defendants were liable, "on

the plain ground that the defendants have caused water

to flow into the [claimant]'s mines, which but for the

defendant's act would not have gone there".

Court of Exchequer Chamber





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Fletcher appealed to the Exchequer Chamber of six judges. The prior decision was overturned in

favour of the appellant Fletcher. Blackburn J spoke on behalf of all the judges and said that:

Blackburn J gave the leading judgment.

We think that the true rule of law is, that the person

who for his own purposes brings on his lands 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. He can excuse himself by shewing that the

escape was owing to the Plaintiff’s default; or

perhaps, that the escape was the consequence of vis

major, or the act of God; but as nothing of this sort

exists here, it is unnecessary to inquire what excuse

would be sufficient. The general rule, as above

stated, seems on principle just. The person whose

grass or corn is eaten down by the escaping cattle of

his neighbour, 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

”



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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 will be mischievous if it gets on his

neighbour's, should be obliged to make good the

damage which ensues if he does not succeed in

confining it to his own property. But for his act in

bringing it there no mischief could have accrued, and

it seems but just that he should at his peril keep it

there, so that no mischief may accrue, or answer for

the natural and anticipated consequence. And upon

authority this we think is established to be the law,

whether the things so brought are beasts, or water,

or filth, or stenches.

Blackburn J's opinion relied on the liability for damages to land available through the tort of

chattel trespass and the tort of nuisance, as well as the in scienter action, injury by a

domesticated animal known to have a disposition to injure. Rylands appealed.

House of Lords

The House of Lords dismissed the appeal and agreed with the determination for Fletcher. Lord

Cairns, in speaking for the House of Lords, stated their agreement of the rule stated above by



http://en.wikipedia.org/wiki/Hugh_Cairns,_1st_Earl_Cairns


Justice Blackburn, but added a further limitation on liability, which is that the lad from which the

escape occurs must have been modified in a way which would be considered non-natural,

unusual or inappropriate. The case was then heard by the House of Lords on 6 and 7 July 1868,

with a judgment delivered on 17 July. Oddly the court consisted of only two judges, Lord

Cairns and Lord Cranworth; Lord Colonsay failed to attend. The eventual judgment

confirmed Blackburn's decision and general principle, adding a requirement that the use be "non-

natural". The judgment of Lord Cairns LC was as follows.



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“Lord Cairns LC fully concurred with Blackburn J

My Lords, the principles on which this case must be

determined appear to me to be extremely simple.

The Defendants, treating them as the owners or

occupiers of the close on which the reservoir was

constructed, might lawfully have used that close for

any purpose for which it might in the ordinary course

of the enjoyment of land be used; and if, in what I

may term the natural user of that land, there had

been any accumulation of water, either on the

surface or underground, and if, by the operation of

the laws of nature, that accumulation of water had

passed off into the close occupied by the Plaintiff,

the Plaintiff could not have complained that that

result had taken place. If he had desired to guard

himself against it, it would have lain upon him to

have done so, by leaving, or by interposing, some

barrier between his close and the close of the

Defendants in order to have prevented that

operation of the laws of nature....

On the other hand if the Defendants, not stopping at

the natural use of their close, had desired to use it

for any purpose which I may term a non-natural use,

”



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for the purpose of introducing into the close that

which in its natural condition was not in or upon it,

for the purpose of introducing water either above or

below ground in quantities and in a manner not the

result of any work or operation on or under the land,

- and if in consequence of their doing so, or in

consequence of any imperfection in the mode of their

doing so, the water came to escape and to pass off

into the close of the Plaintiff, then it appears to me

that that which the Defendants were doing they were

doing at their own peril; and, if in the course of their

doing it, the evil arose to which I have referred, the

evil, namely, of the escape of the water and its

passing away to the close of the Plaintiff and injuring

the Plaintiff, then for the consequence of that, in my

opinion, the Defendants would be liable. As the case

of Smith v. Kenrick is an illustration of the first

principle to which I have referred, so also the second

principle to which I have referred is well illustrated

by another case in the same Court, the case of Baird v

Williamson 15 CB (NS) 317, which was also cited in the argument at the

Bar.



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SIGNIFICANCE of the rule in rylands v fletcher 1868

Change to the law

Early English common law had, in many instances, imposed liability on those who had caused

harm regardless of wrongful intent or negligence. Trespass was considered a remedy for all

tortious wrongs, and sometimes used as a synonym for torts generally. Over the centuries,

however, judges focused more on the intent and negligence behind the actions than the nature of

the actions themselves, leading to the development of negligence and nuisance and the further

development of trespass, at the time of Rylands, the previous case relied upon was Vaughan

v Menlove, decided in the Court of Common Pleas in 1837. The case had almost identical

facts to Rylands, but strict liability was never even considered. The case is instead thought of as

one of the best attempts of early 19th Century English judges to build up the law of negligence.

The outcome of Rylands meant that judges would again impose strict liability on defendants

who accumulated dangerous things on their land without any need to prove negligence or

wrongful intent. The decision won support for bringing the law relating to private reservoirs up

to standard with the law relating to public reservoirs, which contained similar statutory

provisions thanks to a pair of private Acts of Parliament passed in 1853 and 1864.

Assessment

The decision in Rylands initially faced little criticism within England and Wales, although many

American scholars and judges of the time felt that judgment was a poor one. Doe CJ of the New

Hampshire Supreme Court wrote that it

"Put a clog upon natural and reasonably necessary uses of

matter and tend to embarrass and obstruct much of the

work which it seems to be a man's duty carefully to do".



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The American interpretation was based primarily on the idea that it would cause economic harm.

Further American criticism is based on the idea that it is poor law. Firstly, they argue, it is not

trespass, since the damage is not direct, and secondly, it is not a nuisance, because there is no

continuous action. Glofcheski, writing in the Hong Kong Law Journal, notes that the doctrine

has not flourished... a tort imposing strict liability should be closely interpreted and

circumspectly applied". It has been argued that the decision was never entirely accepted by the

judiciary as a whole, and that it is difficult to justify. This is for two reasons; firstly, it is a case

of very limited applicability, and it has been suggested that it be folded into a general principle of

strict liability for "ultra-hazardous" activities. Secondly, subsequent case law in England and

Wales, particularly in Rickards v Lothian, has undermined the "non-natural use" element

by introducing a cost/benefit analysis which severely limits the decision's usefulness.

Developments

The party that can be sued in a Rylands claim is an owner or occupier of land, along with

anyone who stores or collects the dangerous material, as in Rainham Chemical Works

Ltd v Belvedere Fish Guano Co Ltd. The party suing was initially one with an

interest in land, but Perry v Kendricks Transport Ltd confirmed that an interest in

land was not necessary to bring a claim. Historically, personal injury claims have been allowed,

as in Hale v Jennings [1938] 1 All ER 579. More recent cases, however, such as the

wHouse of Lords decision in Transco plc v Stockport Metropolitan Borough

Council [2003] UKHL 61, have confirmed that Rylands is "a remedy for damage to land

or interests in land. It must...follow that damages for personal injuries are not recoverable under

the rule".

In Cambridge Water Lord Goff opined that the rule in Rylands should not further be

developed, and that rather than being an independent tort it should be instead considered a sub-

tort of nuisance. Statutory provisions, such as the Environmental Protection Act 1990, were a

more modern and appropriate way of addressing environmental problems which would

previously have been covered by Rylands. Subsequently, Transco disapproved of the Australian



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http://en.wikipedia.org/w/index.php?title=Perry_v_Kendricks_Transport_Ltd&action=edit&redlink=1

http://en.wikipedia.org/w/index.php?title=Rainham_Chemical_Works_Ltd_v_Belvedere_Fish_Guano_Co_Ltd&action=edit&redlink=1


http://en.wikipedia.org/w/index.php?title=Rickards_v_Lothian&action=edit&redlink=1



decision in Burnie Port Authority v General Jones Pty Ltd to absorb Rylands

into the general law of negligence, deciding that Rylands should continue to exist but, as Lord

Bingham said, as a "sub-species of nuisance...while insisting upon its essential nature and

purpose; and...Restate it so as to achieve as much certainty and clarity as is attainable". It is now

a sub-tort, rather than an independent tort; they have confirmed that it will be allowed to remain.

Donal Nolan has argued that to consider Rylands as part of private nuisance is unsound. Private

nuisance requires the claimant to have an interest in land, while Rylands does not; although

exceptions to this rule have occasionally been made in private nuisance, in Hunter v Canary

Wharf Ltd [1997] AC 655 , the House of Lords ruled that to make exceptions would transform

nuisance from a tort against land to a tort against the person, and should not be permitted. John

Murphy, Professor of Common Law at the University of Manchester, agrees with Nolan, and

makes the additional point that nuisance is focused on a loss of enjoyment to land, not physical

damage as Rylands is (Murphy (2004) 647). It has also been concerned that the reasonable use

test, which appears in nuisance, is not applicable to cases brought under Rylands.

THE MAIN ELEMENTS IN THE RULE OF RYLAND V FLETCHER 1868

1. Brings, collects and keeps

The first requirement under Rylands is that the defendant "for his own purposes brings onto land

and collects and keeps there". In Rylands, this was the keeping of water in a reservoir; other

cases in England and Wales have illustrated what sort of material is considered. In British

Celanese v AH Hunt [1969] 1 WLR 959, the accumulation was of metal foil strips.

"for his own purpose" is not understood to be "for his benefit", although that was what Blackburn

was referring to at the time; in Smeaton v Ilford Corp [1954] Ch 450, Rylands was held to

apply to a local authority accumulating sewage on its land, although there was no benefit to the

local authority from doing this.



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http://en.wikipedia.org/w/index.php?title=British_Celanese_v_AH_Hunt&action=edit&redlink=1

http://en.wikipedia.org/wiki/University_of_Manchester


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2. Mischief and escape

The next element of Rylands is that the thing be something "likely to do mischief if it escapes".

Before Transco plc v Stockport Metropolitan Borough Council this did not

have to be a dangerous item (see below); the risk was instead in its behaviour if it escapes. In

Rylands the "thing" was water. Other examples are fire, as in Jones v Festiniog

Railway [1868] LR 3 QB 733 , gas, as in Batchellor v Tunbridge Wells

Gas Co [1901)]84 LT 765 ,fumes, as in West v Bristol Tramways Co

[1908] 2 KB 14, and electricity, as in Hillier v Air Ministry [1962] CLY 2084.

The extent of the "thing’s accumulation can also be considered, as in Mason v Levy

[1967] 2 QB 530, where it was not just the type of thing kept but the sheer amount which

created the danger. It is essential for a Rylands claim that there be an escape of a dangerous

thing "from a place where the defendant has occupation of or control over land to a place which

is outside his occupation or control". In Read v J Lyons & Co Ltd [1947] AC 156,

an explosion in a munitions factory killed an inspector on the property. Rylands was held not to

apply, because there was no escape. The dangerous thing that escapes does not always have to be

the thing which was accumulated, but there must be a causal link. In Miles v Forest Rock

Granite Co (Leicestershire) Ltd [1918] 34 TLR 500, explosives stored on the

defendant's land led to the escape of rocks in a blast, and the defendant was found liable.

It should be noted that in Transco plc v Stockport Metropolitan Borough

Council [2004] 2 A.C. 1, 11, Lord Bingham stated obiter that;

"I do not think the mischief or danger test should be at all

easily satisfied. It must be shown that the defendant has

done something which he recognised, or judged by the

standards appropriate at the relevant place and time, he

ought reasonably to have recognised, as giving rise to an PREPARED BY Mr. OKIYA JIMMY JANSKY


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http://en.wikipedia.org/w/index.php?title=Mason_v_Levy&action=edit&redlink=1

http://en.wikipedia.org/w/index.php?title=Hillier_v_Air_Ministry&action=edit&redlink=1

http://en.wikipedia.org/w/index.php?title=West_v_Bristol_Tramways_Co&action=edit&redlink=1

http://en.wikipedia.org/w/index.php?title=Batchellor_v_Tunbridge_Wells_Gas_Co&action=edit&redlink=1

http://en.wikipedia.org/w/index.php?title=Batchellor_v_Tunbridge_Wells_Gas_Co&action=edit&redlink=1

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exceptionally high risk of danger or mischief if there

should be an escape, however unlikely an escape may

have been thought to be."

3. Non-natural use

The requirement of "non-natural use", which was created when the case went to the House of

Lords, was described by Lord Moulton, in Rickards v Lothian[1913] AC 263,

as "some special use bringing with it increased danger to others". Because the idea of something

being "non-natural" is a subjective one, the interpretation of this principle has varied over the

years. In Musgrove v Pandelis, a car filled with petrol was considered "non-natural",

while in Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd

[1921] All ER 48, so was the operation of a munitions factory during war-time. There is no

single concrete test to define what is "non-natural", for reasons given by Lord Bingham in

Transco plc v Stockport Metropolitan Borough Council [2003] UKHL

61; "[non-natural use] is not a test to be inflexibly applied. A use may be extraordinary and

unusual at one time or in one place but not so at another time or in another place...I also doubt

whether a test of reasonable user is helpful, since a user may well by quite out of the ordinary but

not unreasonable".

DEFENSES

There are several defences in England and Wales to a claim under Rylands v Fletcher; act of

an unknown third party, contributory negligence, consent and statutory authority. An act of an

unknown third party will absolve the defendant of liability, as in Perry v Kendricks

Transport Ltd [2003] UKHL 61. In Northwestern Utilities Ltd v London

Guarantee and Accident Co Ltd [1936] AC 108, the principle was established

that if a claimant knows of the unknown third party and their actions, the defendant is

additionally likely to be able to deny liability. As Rylands requires strict liability, any

contributory negligence voids most of the claim. Initially it was sufficient to offset the case itself;




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with the Law Reform (Contributory Negligence) Act 1945, courts instead apportion damages,

taking into account how much of the harm was contributed by the claimant. Nevertheless,

contributory negligence is still a viable partial defence to a Rylands claim. Other valid defences

are where the claimant has consented, expressly or impliedly, to the accumulation of the "thing",

and where there is statutory authority for the accumulation.

APPLICATION OF THE PRINCIPLE IN RYLAND V FLETCHER IN SEVERAL

COUNTRIES

1. Scotland

The principles of Rylands v Fletcher were initially applied in Scots law, first in the case of

Mackintosh v Mackintosh [1864] 2 M 1357, where a fire spreading from the

defendant's land to the claimant's land caused property damage. Scots lawyers and judges applied

Rylands differently to their English counterparts, however. While the rule is interpreted in

England and Wales as being distinct from negligence and the rules of duty of care and liability

applied there, the principle in Scotland was that "negligence is still the ground of liability. The

only difference is that in such cases the proprietor is doing something upon his property which is

in its nature dangerous and not necessary (or usual?) in the ordinary management of the

particular kind of property, and he is therefore bound to observe a higher degree of diligence to

prevent injury to his neighbour". The use of Rylands in Scots law, which was started in

Mackintosh, finally came to an end in RHM Bakeries v Strathclyde Regional

Council [1985] SC (HL) 17. Lord Fraser, as part of his judgment, stated that the

idea of strict liability that was brought into play by Rylands was not a part of Scots law, and the

idea that it ever had been valid was "a heresy that ought to be extirpated".

2. United States

Within the United States, there are many situations in which strict liability is applied to actions,

and Rylands is commonly cited as the origin of that rule; it was first applied in Ball v. Nye

99 Mass. 582 , by the Supreme Court of Massachusetts. The Supreme Court of Minnesota



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also adopted it in Cahill v. Eastman 18 Minn. 324, while the Supreme Courts of New

York, New Hampshire and New Jersey all rejected the principle, in Losee v. Buchanan

51 NY 476, Brown v. Collins 53 NH 442, and Marshall v. Welwood

respectively 38 NJL 339 Woodside III (2003) 8. The Supreme Court of New Jersey, however,

reversed Welwood in 1983 in DEP v. Ventron Corp 468 A.2d 150. Many courts in

the United States have attempted to use Rylands to justify absolute liability, which it was never

intended to do; while absolute liability is where no defence is applicable, in Rylands itself

Lord Cairns accepted that there were some situations where the case should not be applied

(Woodside III (2003) 7).

3. Australia

In Australia, the principles of Rylands v Fletcher were "killed off" by the High Court of

Australia in Burnie Port Authority v General Jones Pty Ltd (1994) 120

ALR 42. The High Court's view was that the Rylands principles "should now been seen ... as

absorbed by the principles of ordinary negligence, and not as an independent principle of strict

liability". Contrasting this, the principles have escaped destruction in Hong Kong, where the

courts are yet to follow the examples set by Australia and England and Wales, and Rylands

remains an independent tort.

Summary of the case:

Facts

The defendant occupied land near to where the plaintiff operated a coal mine. The coal seams

extended under the defendant's land. These had been previously worked but the tunnels and

shafts had been cut off and forgotten about. The defendant obtained approval to construct a

reservoir to provide water for his mill. The water from this reservoir permeated the old coal

shafts beneath and flooded the plaintiff's mine. The defendant succeeded in the Court of

Exchequer. The plaintiff appealed to the Exchequer Chamber.



http://en.wikipedia.org/wiki/Hong_Kong




http://en.wikipedia.org/wiki/Absolute_liability

http://en.wikipedia.org/wiki/United_States

http://en.wikipedia.org/w/index.php?title=DEP_v._Ventron_Corp&action=edit&redlink=1

http://en.wikipedia.org/w/index.php?title=Marshall_v._Welwood&action=edit&redlink=1

http://en.wikipedia.org/w/index.php?title=Brown_v._Collins&action=edit&redlink=1

http://en.wikipedia.org/w/index.php?title=Losee_v._Buchanan&action=edit&redlink=1

http://en.wikipedia.org/wiki/New_Jersey_Supreme_Court


http://en.wikipedia.org/wiki/New_York_Supreme_Court

http://en.wikipedia.org/wiki/New_York_Supreme_Court

http://en.wikipedia.org/w/index.php?title=Cahill_v._Eastman&action=edit&redlink=1

Issues before court

1. The issue was whether the law imposed an absolute duty upon an occupier to keep a

potentially dangerous substance on his land or;

2. Whether the occupier needed to take only reasonable and prudent precautions to do so.

The Decision (court holding)

Blackburn J (delivering the judgement of the court):

"the person who for his own purpose brings on his lands

[…] anything likely to do mischief if it escapes, must keep

it at his peril and is prima facie answerable for all the

damage which is the natural consequence of its escape."

Note once again

Fletcher employed competent contractors to build a reservoir on his land. During the

work, the contractors discovered an old mine whose shafts and passages connected with

another mine on neighbouring land owned by Rylands. The contractors did not inform

Fletcher and did not block up the shafts. When the reservoir was filled with water, the

water escaped from Fletcher’s mineshaft into Ryland’s thereby causing damage.

Rylands sued on the grounds of Fletcher’s negligence. Fletcher himself had not been

negligent as he had no knowledge of the existence of the shafts. He was not vicariously

liable for the actions of the contractors as they were not his employees.

The case eventually went to the House of Lords on appeal who upheld the original

judgement that Fletcher was liable in tort.



During the appeal Lord Cairns, in agreeing with the above statement, added the

qualification that the rule only applied to a “non-natural” use of the land, and not to

circumstances where a substance accumulated naturally on land. The word “natural” has

since been extended to mean “ordinary”.

Contractors; A defendant was held to be negligent for the negligence of his contractors.

REMEDIES

The owner of land close to the escape can recover damages for:

1. Physical harm to the land itself (as in Rylands v Fletcher) and to other property.

2. It is no longer clear if a claimant can recover for personal injury.

THE VARIOUS DEFENCES TO THE RULE IN RYLAND V FLETCHER 1868

A number of defences have been developed to the rule in Rylands v Fletcher.

1. Consent

The express or implied consent of the claimant to the presence of source of the danger, provided

there has been no negligence by the defendant, will be a defence.

2. Common Benefit

If the source of the danger was maintained for the benefit of both the claimant and defendant, the

defendant will not be liable for its escape. This defence is either related to the defence of consent

or the same thing. According to Winfield & Jolowicz, p551, "common benefit seems redundant

(and indeed misleading) as an independent defence".

3. Act of a stranger

The defendant will not be liable if a stranger was responsible for the escape.



In Rickards v Lothian [1913] AC 263: The D was not liable when an unknown

person blocked a basin on his property and caused a flood, which damaged a flat below.

4. Statutory authority

A statute may require a person or body to carry out a particular activity. Liability under Rylands

v Fletcher may be excluded upon the interpretation of the statute.

SAMPLE QUESTIONS ON STRICT LIABILITY

QUESTION ONE

Examine the case of Rylands V Fletcher (1865)3 H & C.774 and discuss all the legal principles therein.

QUESTION TWO

Explain the phrase ‘Non-natural user of land’as used in strict liability civil wrongs.

QUESTION THREE

Assess all the possible defences that one may raise to avoid tortuous liability for strict liability wrongs.(8 marks)

QUESTION FOUR

Explain what is meant by strict liability and state it relevance today.

QUESTION FIVEExamine relevance of the defences laid down in Rylands v Fletcher in the law of Tort today.

QUESTION SIXDiscuss the rules governing liability for animals on the highways with relevant case laws.

UNIT THREE: VICARIOUS LIABILITY IN TORT



INTRODUCTIONUsually one is responsible for his own acts and not for the acts of others. But in certain

circumstances a person may be held liable for a tort committed by another, i.e. where A is held

liable for the tort of B committed against C, although A is no party to the tort. This is called

vicarious liability. This topic will be discussed under two heads:

a) The liability of a master for the torts of his servants.

b) The liability of a principal for the torts of an independent contractor employed by him.

c) Liability of master for the torts of his servant:

Who is a servant? A servant is a person who, by agreement expresses or implied is employed by

another and is subject to the command of that other as to the manner in which he shall do his

work. (Yeomens Vs. Hoakes. [1880] 6 Q. B. 532),

Every servant is in the employment of his master, but it does not follow that every person

employed is a servant. The test to be applied to ascertain whether a person doing work for

another is or is not his servant is to consider whether the master has complete control of him as

to the way in which he does his work. If he has, the person employed is a servant, otherwise not.

Fukasi Kabugo Vs. Attorney General of Uganda Civil Suit No. 1101 of

1974

Before: Allen, J.

Facts: In 1973 the Ministry of Health decided to mount a campaign against T.B which was very

common in Uganda. They contracted the World Health Organisation (WHO) which agreed to

assist by supplying the vaccine, transport, a consultant and the necessary personnel.

In return the Ministry of Health had to produce local counterparts to work with. As a result 75%

of the children aged 1 -13 years were vaccinated with (WHO) financing the programme paying

the local volunteers when they also trained and supervised with the help of the Ministry all over



the country. The Plaintiff after being vaccinated developed acute osteomyelitis of the right

humerus which he claimed was due to negligence of the Defendant’s servant. He sued arguing

that since these servants were under the control of the Ministry of Health, the Defendant was

vicariously liable in negligence.

The Defendant denied any negligence and further argued that if there was any negligence, he

would not be liable since the vaccinators were not employed by the Uganda Government but

WHO.

HELD:

1. Negligence was not established as there was no evidence to establish that vaccination

was done improperly.

2. The Defendant can only be liable in this case if it can be established that the staff who

did the vaccination were his servants.

The immediate question would be as to whether there was a contract of service and the normal

tests therefore have been held to be:

a) The master’s power of selection of his servants;

b) Payment of wages;

c) The master’s right to control the method of doing work; and

d) The master’s right of suspension or dismissal.

3. Moreover it was observed by Mocatta, J. in Whittaker Vs. Minister of

Pensions and National Insurance (1967) 1 Q.B. 156 that “the

greater the degree of control exercisable by the

employer the more likely it is that the contract is



one of services”. Nevertheless, there may be a contract of service in the

absence of a right to control the method of doing work, in the case of Horren Vs.

Swinton & Pendlebury Borough Council (1965) 1 W.L.R. 576.

If I were to adopt the above prepositions of law, I would hold that WHO was the

employer of the vaccination team and not the Uganda Government.

4. Where however, a person delegates a task or duty to another not a servant or employs

another, not a servant to do something for his benefit or the joint benefit of himself

and the other whether the other be called an agent or independent contractor such a

person will be liable for the negligence of the other in the performance of the task,

duty or act as the case may be.

5. This liability for casual delegation seems, however to have been more or less

restricted to cases involving loan or use of vehicles but there is no reason why it

should not be extended to services such as those rendered in the present case.

6. In the present case therefore if negligence was proved, and in face of vague, unhelpful

or not particularly relevant precedents, I would hold both the Uganda Government

and WHO jointly liable in negligence to the Defendant for “there can be no doubt that

the vaccination programme was for the benefit of the people of Uganda and for the

Government of Uganda (Defendant) in particular.

7. The Defendant had a very considerable interest in the project and supplied

counterpart staff and administrative assistance all the way down. They were clearly

concerned that it should be carried out efficiently and effectively and without

negligence.



Thus, whether the relationship of master and servant exists is a question of fact depending on all

the circumstances of the case. The test to be generally applied lies in the nature and degree of

detailed control over the person alleged to be a servant.

GENERAL RULE

A master is liable for all torts committed by his servant in the course of his employment and

within the scope of his authority. An act is said to be done within the course of the servant’s

employment where, although itself unauthorized it is so incidental to some act or class of acts

which the servant was authorized to do that it m0oay be said to be a mode, though an improper

one, of performing them.

Thus whether a particular tort is committed in the course of the servant’s employment is a

question of fact. The following principles may, however, be laid down to determine this

question.

A tort is committed by the servant in the course of his employment if it consists of:-

a) A wrongful act or omission expressly or impliedly authorized by the master; or

b) A wrongful act or omission which is an unauthorized manner of doing something

authorized by the master; or

c) A wrongful and unauthorized act or omission which is subsequently ratified by the

master.

The basis of the liability of a master is that a person who employs others to do for him what he

would otherwise have to do for himself is liable to answer to third parties not merely for the

instructions that he gives but also for the manner in which those instructions are carried out. In

other words, a master is responsible not only for what he authorizes his servant to do but also for

the way in which the servant does it. PREPARED BY Mr. OKIYA JIMMY JANSKY


Thus a master is held responsible for all torts which he has previously authorized or subsequently

ratified, and also for torts which he has not authorized if they are so closely connected with

authorized acts that they may be regarded as modes of doing those acts.

On the other hand, if the tort committed by a servant is not so connected with an act authorized

by his master as to be regarded an improper mode of doing that act, but is an entirely

independent act of the servant, then the tort is committed outside the course of the employment,

and the master is not liable. Again, a tort is not committed in the course of the employment if the

servant was acting wholly for his own purpose, not for his master’s. The servant is then said to

be “on a frolic of his own”.

Examples:

The driver of a petrol lorry, whilst transferring petrol from the lorry to an underground tank,

struck a match to light a cigarette and threw it on the ground. A fire resulted which caused great

damage. Held, his employers were liable. Though the act of negligence was done for his own

convenience it was a negligent method of doing the work he was employed to do viz watching

over the flow of the petrol. (Century Insurance Co. Vs. N. Ireland Transport

Boards, (1942) A. C. 509).

John Imina vs. Arua Town Council Civil Suit No. 1245 of 1973

High Court Before: Kantinti, J.

Vicarious liability Liability of master for servant’s acts done in the course of his employment

one it is that the servant was employee of master there is a presumption that he was in course of

his employment. Burden lies on the master to prove the contrary.

FACTS:

The Plaintiff’s claim against the Defendant was for damages in negligence for the injuries he

suffered in an accident. The Plaintiff was working as a turn boy for Arua Town Council in 1973.



On 23rd March 1973 he was told by the town clerk to tow a vehicle which was stuck on the road.

On 24th March 1973 he and the driver of the tractor went to tow the vehicle which did not belong

to the Council. While towing the said vehicle, the tractor overturned and the Plaintiff was

involved in an accident. The day of the accident was Saturday and not an official working day.

ISSUES:

1. Was the driver acting in the course of the employment?

2. Was the Plaintiff an authorized passenger?

HELD:

1. The principle governing liability of a master for the negligence of his servant is that

where the driver was the owner’s servant, the inquiry was whether the driver was

driving solely for his own purposes or partly for the purpose of the owner and, the

question in such a case was whether the servant was acting within the scope of his

employment at the material time. If he was then a mere permission might be enough

to fix the master with liability.

2. Once the Plaintiff has pleaded and proved that at the time of accident, the driver was

driving the car which he was employed to drive, a prima facie case has been

established that he was acting within the scope of his employment and the burden of

proving the opposite shifts to the employer.

3. In the instant case there was abundant evidence to show that both the Plaintiff and the

driver were instructed to use the tractor which caused the accident and therefore the

driver was acting within the scope of his employment and the Plaintiff was an

authorized passenger.

Example:



2. A housemaid, whose duty it was to light fires, found that a fire would not burn and,

believing that chimney to be choked, lit some straw in it and set the house on fire.

Held her master was not liable. Her duty was to light fires, not to clean chimneys.

(Makemzie Vs. Mcleod (1834) 10 Bing 385).

3. The Defendant sent a car-man and clerk with a horse and car to deliver some wine

and to bring back some empty bottles. The car-man, on his return, instead of

performing his duty and driving to the Defendant’s office, drove in quite another

direction on private business of the clerk and while they were thus driving, the

Plaintiff was run over. Held, the master was not liable, the servant being on a frolic of

his own. (Storey vs. Ashton, (1869) L. R. 4 Q. B. D 476.

Peter Ndula vs. Attorney General of Uganda

Civil Suit No.9 of 1976

Before: Nyamchoncho, J.

FACTS:

The Plaintiff brought an action against the Attorney General for personal injuries he sustained

when he was knocked down by the Defendant’s car. The Defendant’s car was being driven by a

Police constable who was supposed to deliver the Secretary General of O.A.U. The driver

testified that at the time of the accident he was driving on his own and did not have his masters

consent to drive the car at that time.

HELD:

The said police constable had set out on a floric of his own when the accident happened. The

driver had no permission of his employer to take the car and therefore Attorney General was not

vicariously liable.

WILLFUL TORTS OF SERVANT:

A master is liable even for the willful torts of his servant committed within the scope and in the

course of his employment though committed purely for the servant’s own benefit. Thus where PREPARED BY Mr. OKIYA JIMMY JANSKY


the Plaintiff went to the Defendants’, a firm of solicitors, for the purpose of selling some

property and delivered the same to their managing clerk, who then sold the property in his own

name and absconded with the proceeds, it was held that the Defendants were liable, as the clerk

was carrying out the duties for which he was employed. (Lloyd Vs. Grace & Co.

(1912) A. C. 716).

Torts expressly forbidden:

If the wrongful act is done in the course of employment and it’s a mere impropriety in the mode

of performing the servant’s duty. It is immaterial that the servant had express orders not to

commit that impropriety; for the master cannot discharge himself from liability by giving

instructions to the servant as to the manner in which his duty shall be performed.

Thus, where a garage hand had been expressly forbidden to drive vehicles (though it was part of

his general duties to move them) and contrary to his express instructions he drove a vehicle and

damaged it, it was held that his employers were liable, the servant having acted in the course of

the employment. (L. C. C Vs. Cathermoles (Garages) Ltd. (1953) I. W. L. R.

997.

Byarugaba vs. Kilembe Mines Ltd. [1972] B. A. 341

Master and servant – Vicarious liability.

Master and servant – work unauthorized but within course of employment – master liability.

FACTS:

The Plaintiff, a miner employed by the Defendant claimed damages for injuries sustained in a

rock- fall in the mine. As a result both legs were amputated. The Plaintiff had been ordered to

work in the stop by the gang boss before the necessary supports had been fitted.

+

HELD:



1. The gang boss had disobeyed instructions and ordered the Plaintiff to work in the stop

before the necessary supports had been fitted.

2. This was merely an unauthorized method of doing his work and his employers were

liable for negligence.

Assault by servant:

When the criminal act is done by the servant deliberately of his own caprice, the master is not

liable. But where the wrongful act is done in the course of employment the master is liable.

Thus, where the Plaintiff, a passenger sustained injuries in consequence of being pulled violently

out of Railway carriage by one of the Defendant’s porters, who acted under the erroneous

impression that the Plaintiff was in the wrong carriage, the Defendants were held liable. The

porter was doing in a blundering way that which he was employed to do i.e. to see that

passengers were in the right train. (Bayley vs. Manchester Rly (1873) L. R. 8 C. P. 148.

MUWONGE vs. Attorney General of Uganda

[1967] E. A. 17

The Appellant’s father was killed during a riot. He was shot by a policeman who with his fellow

policeman had been instructed to disperse the riotous crowds by the use of rifles.

HELD:

(Newbold P.) Since use of rifles must have been something contemplated by their seniors, the

Government should be liable.

An act of a policeman in using his rifle would not be in the exercise of his duties if there is clear

evidence that its use (rifle) was for his own purpose and unconnected in any way whatsoever

with his duties.



A master would be held liable for the wrongs of his servants if these wrongs were committed

during the course of their employment therefore Attorney General was liable. The law is that

even if the servant is acting deliberately, wantonly, negligently or criminally, even if he is acting

for his own benefit, nevertheless if what he did was merely a manner of carrying out what he was

employed to carry out, then his acts are acts for which his master is liable.

It should be noted that the fact that the wrongful act is also criminally punishable makes no

difference to the master’s liability for the tort of his servants, committed in the course of his

employment. Thus, where the Defendant’s manager went to the Plaintiff’s house for the recovery

of the price of furniture supplied by the Defendant and there assaulted the Plaintiff, it was held

that the mere fact that the assault was criminal offence and note a tortious act, did not affect the

liability of the Defendant for the act of his servant. (Dyre vs. Lunday (1895) I.Q. 13.

742.

It must, however, be remembered that the liability of master does not extinguish that of the

servant. Both servant and master are jointly and severally liable for the tort of the servant.

Hence, the person injured may maintain the action against either.

a) Liability of an employer for the tort of his independent

contractor:

Generally, an employer is not responsible for the torts of his independent contractor.

“An independent contractor is one who undertakes to produce a given result, but so that in the

actual execution of the work he is not under the order or control of the person for whom he does

it, and may use his own discretion in things not specified beforehand”. (Pollok, Torts, 15th

edition P. 63), the servants of the independent contractor stand in the same position as their

master, so that the employer of the contractor is not liable for torts committed by the contractor’s

servants.



This general rule is however subject to three exceptions:-

1. Where the act which the contractor is employed to do is itself a tort, the employer is

liable.

Example:

A company which had no statutory powers to take up streets directed their contractors to open

trenches in the streets of Sheffield. In doing so the contractor’s servant left a heap of stones over

which the Plaintiff fell and was injured.

HELD:

The Defendant Company was liable for the consequence of their unlawful act. (Ellis Vs.

Sheffield Gas Consumers Co. (1853) 2 E & B 767).

2. Where the employer is under an obligation whether imposed by agreement or statue,

to do a thing and he employs an independent contractor to do it on his behalf, he is

liable if the contractor fails to do it or does it improperly.

Example:

A statute imposed a duty upon the Defendant of making a bridge that would open in a particular

way. They employed a contractor to build the bridge and, owing to his negligence, the bridge

would not open it that way. The Defendants were held liable. (Hole Vs. Sittingbourne

Rly (1861) 6 H 7 N, 488).

3. Where the act, which the contractor is employed to do is one which, if done by the

employer himself, would, though lawful in it, be one at his peril, he is liable, if the

contractor does it improperly.

Example:



The Plaintiff and Defendant were owners of two adjourning houses, the Plaintiff being entitled to

have his house supported by the Defendant’s soil. The Defendant employed a contractor to pull

down and rebuild his house. The Plaintiff’s house suffered damage owing to the contractor

negligently failing to ensure that it had sufficient support. Held, the Defendants were liable.

(Bower Vs. Peate (1876), I. Q. B. D. 321).

It should be noted that the employer is never liable for what is called the collateral or casual

negligence of an independent contractor employed by him. As we know a master has control

over his servant as to the way he does his work and it is his duty to see that the work is so done

as not to cause damage to others.

SAMPLE QUESTIONS ON VICARIOUS LIABILITY

QUESTION ONE

Discuss the application of the principles of vicarious liability in East Africa?

QUESTION TWO

Discuss the various elements constituting vicarious liability?

QUESTION THREE

Discuss in nutshell the justification of vicarious liability today?

UNIT FOUR: NUISANCE

INTRODUCTION

The word Nuisance is derived from the French word “nuire” which means to do hurt or to

annoy. According to Stephens, he defined nuisance as anything done to hurt or annoyance of the

land, tenement or hereditaments of another and not amounting to a trespass. Nuisance may also

be described as unlawful interference with a person’s use or enjoyment of land, or some right

over or in connection with it. Nuisance are of two kinds i.e. (a) Public and (b) Private, although

there some act or omission which amount to all of them



Private Nuisance

Hargrave v Goldman (1963) 110 CLR 40 per Windeyer J nuisance is “an

unlawful interference with a person’s use or enjoyment of land, or some right over or in

connection with it.”

Harley v Esso Petroleum (1961) 2 All ER 145 This was a test case brought by

the plaintiff, who lived in a terrace in Fullham London against Esso who had an oil depot on the

banks of the River Thames. Tankers would arrive from up the river and oil would be transferred

from the river tankers and into storage tanks. Then, road tankers would come and take the oil

from there. A night shift was introduced. The plaintiff sued under nuisance for the noise from the

pumps, a pungent smell, and acid smuts which rose out of the chimneys which soiled their

washing, and damaged their cars. The P sought an injunction - the general remedy for nuisance.

The courts held that the P was entitled to succeed as it was held that the emissions of acid smuts

seriously impaired the enjoyment of land. Further, the smell wasn’t “merely trivial” and was

particularly pungent. Finally, the noise at night was held to be a serious nuisance which went

beyond a triviality.

St Helens Smelting Co v Tipping (1865) 11 ER 1483, the court held that a

private nuisance could occur:

(A) By interference with the P’s use and enjoyment of land

(B) By material damage to property.

It was held that the factor of locality was irrelevant where there is material damage to property

(i.e. who’s there first). In other cases, the question of locality is a factor to be considered. (Not

necessarily a decisive factor). This case was approved in Harley v Esso.

Title to Sue

Oldham v Lawson (No 1) (1976) VR 654 Where the P is not the owner; they have

no proprietary interest in the property, and thus had no standing to sue. In this case, the A

leasehold interest is sufficient. The Court held that as the P’s wife owned the property, the

husband had no title to sue.



Khorasandjian v Bush (1993) QB 727, the P was successful in an action for

nuisance as the D had been making phone calls and other harassing conduct. This was despite the

fact that she had no proprietary interest - she lived with her parents, and thus, didn’t own the

property.

Hunter & Ors v Canary Wharf (1997) All ER 426 overruled Khorasandjian

and re-established the requirement that the P must have a proprietary interest in the land to sue.

Which Rights are Protected

Victoria Park Racing & Recreation Grounds Co LTd v Taylor (1937)

58 CLR 479, the P owned a racecourse, and Taylor’s property shared a boundary with the

racecourse. He constructed a platform on his property such that you could watch the races. He

entered into an agreement with the local radio station whereby they could broadcast the race. The

HC held that the D’s actions did not affect the use and enjoyment of the property, as it was a

racecourse, and the D’s actions did not disrupt its operation as a racecourse. It had an effect on

the takings the owner got, but it was held that an action in nuisance does not protect that interest.

Dollar Sweets Pty Ltd v Federated Confectioners Association of

Australia (1986) VR 383, the defendants were unionists who picketed Dollar sweets

which they had formed a large picket line outside the P’s premises, preventing other employees

from entering the premises. The Supreme Court of Victoria held that this constituted nuisance, as

the use and enjoyment of land was hampered by the defendant’s preventing others from entering

the P’s premises. It was held to interfere with the P’s right to free access to and from the

property.

Broderick Motors Pty Ltd v Rother (1986) Aust Torts Reps 88-059,

the D purchased a car from a used car dealer, which was not in good working condition. As a

result, he parked the car on the street, with a sign which stated: “For Sale; Distance Travelled:



Unknown; Purchased from: Broderick Motors. Be the 10th owner of this bomb.” The plaintiff

sued in nuisance. However, it was held that it was not nuisance as the D had simply parked the

car on the street, and had not interfered with the use and enjoyment of his land.

Animal Liberation Vic (Inc) v Gasser (1991) 1 VR 51 The defendants were

opposed to the use of animals in a circus, and demonstrated outside the plaintiff’s circus. Patrons

had to walk the “gauntlet” with demonstrators shouting slogans. This was held to be nuisance by

the Ds by “besetting” the property and putting entrants in fear for their safety.

Factors in Determining What Conduct is Nuisance

Halsey v Esso looked at whether the factors of smell, noise, and pollution were “mere

trivialities.” That is, the real question is, was the D’s conduct reasonable?

Munro v Southern Dairies Ltd (1955) VLR 332 It was held that triviality is

measured according to ordinary notions.

St Helens Smelting Co v Tipping Held that the question of locality is only relevant in

cases of intangible interference, and not where there is material damage, and even then, it is one

of many factors considered.

Clarey v The Principal & Council of The Women’s College [1953] 90

CLR 170, the defendants were the Women’s college who leased premises to students in which

the neighbours brought an action in nuisance for the noise generated by the students. However,

the HC held that the noises were of the sort incidental to the occupation of the property, and thus,

the neighbours were unsuccessful.

McKenzie v Powley the Plaintiffs were the neighbours of a Salvation Army hall, who

commenced services at 7 am on a Sunday. The plaintiffs brought an action in nuisance, and the

SASC agreed that the noise constituted a nuisance at 7 am, but not at 9 am.

Robinson v Kilvert (1889) 41 Ch D 88, the P used a warehouse to store delicate

paper products, and a manufacturing process of the D’s required heating, the heat damaging the

Ps products. However, it was held that where P is involved in “an exceptionally delicate trade”

he cannot recover for nuisance.



Hollywood Silver Fox Farm v Emmett (1936) 2 KB 468, the D’s son fired

off shots close to the pens of silver foxes under the instructions of D, maliciously in order to

annoy the P. When alarmed, silver foxes eat their young, and refuse to breed, and this happened

as a result of the D’s son’s actions. The Court held that as the D had acted maliciously, the P

would recover, even though the P’s activity was hypersensitive.

Who Is Liable

The D does not need to have proprietary rights in the land from which the nuisance emanates.

Fennell v Robson Excavation Pty Ltd (1977) 2 NSWLR 486 The D was a

contractor who was found to be liable for creating a nuisance even though he was not in

occupation or possession of the land. He had excavated so much land that the Plaintiff’s house

started sinking.

Where an owner adopts or continues a nuisance, they are liable.

Sedliegh-Denfield v O’Callaghan (1940) AC 880 The local council installed a

drainage pipe on the D’s land. In installing it, they had trespassed. The D didn’t know of this, but

when they came to know of it, they used the pipe to drain their property. The result was that

some of the drainage had overflowed on to the Ps property. The court held that the D was liable

for nuisance, as they ahead allowed the nuisance to continue, and they had further adopted it. D

“continues a nuisance if with knowledge of its existence, he fails to take any reasonable means to

bring it to an end.” D adopts nuisance “if he makes any use of (the thing) which constitutes the

nuisance.”

Montana Hotels v Fasson Pty Ltd (1986) 69 ALR 258, the Ds were in

possession of a faulty downpipe, which caused the hotel to be flooded. However, it was held that

the Ds weren’t liable as the D didn’t know or ought not to know of the downpipe. There is an

obligation to stop nuisance where the D knows of it.

Goldman v Hargrave [1967] 1 AC 645 (PC) It was held that once the farmer

became aware of a danger on the property they should have taken steps to eliminate or reduce the

danger. The PC held that it wasn’t the actions of what the reasonable person would have done



that is taken into account, but the D’s resources - physical and financial, which are taken into

account.

Leakey v National Trust [1980] QB 485, the Trust was the occupier of a

property which was on Burrow Hump, which was liable to slip. The D knew of this, and did

nothing. The P suffered damage as a result, and the D was held to be liable in nuisance, as they

didn’t take any remedial action, and their resources were more than sufficient to undertake the

work. This followed Goldman v Hargrave.

Defence of Statutory Authorisation

Where an act of parliament expressly or impliedly authorizes the creation of a nuisance, it is a

proper defence.

Managers of The Metropolitan District Asylum v Hill (1881) 6 App

Cas 193 The asylum was a creature of statute, which was charged with the job of setting up a

hospital for people with contagious diseases. The neighbours brought an action in nuisance. The

Ds argued that they were statutorily authorized to set up the hospital, and thus, were immune

from an action for nuisance. The court held that where a statute expressly states the

authorisation, this is true, where it is implied; the onus is on the D to demonstrate the

authorisation. The Court held that the weight of evidence didn’t favour the authorisation.

York Bros (Trading) Pty Ltd v The Commissioner for Main Roads

(1983) 1 NSWLR 391, the Commissioner built a road bridge across a navigable river,

which obstructed the flow of the river. The Ps sued in nuisance. The Ds argued statutory

authorisation by the Main Roads Act. The NSWSC held that the act did not provide a defence.

Powell J held that:

A Prima facie, it is not the intent of the legislature to authorize nuisance.

B D must show that the work was reasonably necessary

C And that it was properly performed



D And that there was no reasonable way of performing the work without creating a nuisance, in

light of available scientific knowledge

Public Nuisance

Public nuisance affects the public at large, is a crime, the action is brought by the Attorney

General, and private individuals don’t have standing to sue unless they have suffered particular

damage that is over that which suffered by the public at large.

AG v PYA Quarries Ltd (1957) 2 QB 169 Denning J held the following on the

question of how many persons are “the Public”:

“I decline to answer how many people…I prefer to look at the reason of the thing… a public

nuisance is…so widespread in its range or so indiscriminate in its effect that it would not be

reasonable to expect one person to take proceedings…but it should be taken on the responsibility

of the community at large.”

Worker’s Compensation

The Worker’s Compensation Act 1987 has been significantly amended by the NSW

parliament in 2001, with the Compensation Court hearing only existing claims and eventually

ceasing operations. New claims are to be determined by the Compensation Commission with the

aid of expert panels. Common law rights are subject to further amending legislation still to be

finalized. These rights are to be substantially limited. A judicial enquiry headed by Justice

Sheahan was set up to look at some of these proposed changes and has recently reported to

parliament.

The pieces of legislation governing Worker’s compensation in NSW are: the Workers

Compensation Act 1987, Workplace Injury Management and Workers Compensation Act

1998, and Workers Compensation Legislation Amendment Act 2001 (still to be proclaimed).

The former two pieces of legislation are to be read as if they are part of the same act. Where

there is a discrepancy, the later act prevails, (Section 2A). The 1987 act continues to govern

liability to pay compensation, entitlements (other than to lump sums) and Common Law claims.



It is anticipated that c. law claims will be significantly restricted or even abolished by further

amending legislation in 2001 or 02.

The 1998 Act primarily deals with rehabilitation and injury management and procedures for

claims (including conciliation). The claims and procedures provisions have been amended by the

2001 act and apply now only to old claims. “Injury management” is defined as the process that

comprises activities and procedures that are undertaken or established for the purpose of

achieving a timely, safe and durable return to work for injured workers. (Section 42(1))

The 2001 Act makes significant amendments relating to lump sum compensation and sets up

new claims procedures. Disputed claims are referred to the Workers Compensation

Commission for assessment. The Compensation Court only has jurisdiction in respect of

existing claims. It will eventually cease to exist.

The legislation at present:

Creates rights on a no-fault basis for injured workers and their dependants (where the

worker is deceased) Is in addition to common law rights BUT

Limits workers right to damages at common law requires workers to elect between

recovery at workers compensation and common law recovery.

Section 4 defines a worker as “a person who has entered into or works under a contract of service

or apprenticeship with an employer…” N.B. it includes state government employees, but, fed

government employees have their own scheme. The common law provides the definition of a

‘contract of service.’ (Zujis v Wirth, Stevens v Brodribb, Hollis v Vabu). Under sch1

of the 1998 Act, some contractors (Example outworkers) and certain industries (Examples cane

cutters, timber fellers, fencers) are classified as deemed workers.

Injury s4 ’87 Act:



Personal injury arising out of or in the course of employment includes diseases of gradual onset

(S15 & 16) includes aggravation, acceleration, exacerbation of any disease or illness or

condition.

Psychological injury (S 11A)

Dust diseases (Workers Compensation (Dust Diseases) Act)

Journey provisions injuries received on a periodic journey (home to work & back) are

compensable provided there is no interruption or deviation which materially increases risk of

injury (S10)

THERE MUST BE A CAUSAL CONNECTION BETWEEN THE

EMPLOYMENT AND THE INJURY

Serious and willful misconduct by the worker disqualifies them from compensation unless the

injury results in serious permanent disability or death. (S14)

Periodic payments - a weekly sum

Total incapacity for the first 26 weeks of total incapacity the worker is paid the current weekly

wage rate, with reference to the AWARD rate. After this time, the worker is paid a lesser

amount, prescribed under the Act (having regard to dependants) or 90% of the A.W.R.

whichever less is. (S36)

Notional Total Incapacity where the employer’ can’t provide suitable light work to employee

who is partially incapacitated, the employee is deemed totally incapacitated and is entitled to

compensation accordingly. This is restricted to one year. (S 38(2)) (S 38)

Partial incapacity - where a worker is unable to do pre-accidental work and is being paid a lesser

wage ‘cost of the partial incapacity is entitled to the difference between actual and probable

weekly earnings but for the injury.

Lump Sum Benefits for claims under pre-2001 legislation: Are in addition to weekly benefits.

Section 66 Lump sum compensation for permanent loss or impairment of body parts - Table of

Disabilities



Section 67 pain & suffering compo subject to a threshold - worker must be entitled to at least

10% of max payment under s66.

Max amount payable is avail. Only in a “most extreme case” (section 67(3))

Lump sum benefits as stated under 2001 legislation (Applies to injuries occurring after

commencement of the Act)

Section 65 &66 omitted new section 66 lump sum compensation for permanent impairment

calculated as prescribed by the regulations on the basis of the degree of permanent impairment

resulting from injury. Degree of impairment to be agreed or assessed by approved medical

specialist (with provision for appeal to a panel only on very limited grounds) new section 67

compo for pain & suffering only for workers whose degree of permanent impairment is greater

than that prescribed by the regulations. Max amount not to exceed $50 000.

Death Benefits

Section 25 - wholly defendant persons paid a lump sum, if more than one the sum is

apportioned. Dependant children entitled to weekly compo payment to age 16 or 21 if student

Partial dependants awarded a portion of lump sum in discretion of commission

Medical expenses - Section 60

Common Law claims under W.C. Act sig. Limitations on entitlement to and calculation of

damages. Election provisions worker must elect b/w commencement of proceedings @ c.law &

payment of workers compensation benefits under s66/7 (section 151A) Election is irrevocable

(without leave of court and deterioration in worker’s condition) If a worker elects to proceed @

criminal law, and is unsuccessful, then cannot come back to s66/7 claim. If damages awarded,

then a worker is not entitled to any workers compensation benefits and any benefits already paid

will have to be repaid.

The time limit for common law claims is three years…except with leave of the Court. (Section

151D)



The threshold for criminal law damages discourages minor claims. S 151G states that the sum for

damages for pain and suffering is to be awarded only in most extreme cases and if damages

assessed at below a specific figure, then NO damages payable, and a deductible (i.e. reduction)

applies up to a higher figure. S151H states that there will be no damages for economic loss

unless there has been a serious injury - one where there is at least 25% of the s66 benefit would

be payable or damages over a certain amount would be payable for non-economic loss.

Motor Accidents Compensation

The Motor Accidents Act 1999 unlike the Workers Compensation Act leaves the common law

regarding negligence intact. It simply ‘fiddles’ with the damages available and provides a

threshold before one can sue.

It commenced on 1.10.99 and applies to accidents after that date. The old act (MAA1988) as

amended applies to matters arising before that date. It significantly alters and reduces the rights

of claimants to compensation for injuries received in motor accidents. The political motivation

for this is to reduce costs of compensation, legal costs, and thereby the cost of “Green Slip”

insurance. It is designed as an assessment and settlement procedure whose aim is to keep cases

out of the court system.

Definitions:

Motor accident: accident or incident caused by the fault of the owner or driver of a motor vehicle

in the use or operation of the vehicle.

Injury: personal injury includes pre-natal injury, psychological or psychiatric injury, and damage

to artificial members.

Procedure for all claims:

Report to police & lodge notification within 28 days of accident (section 70)

Insurer must notify within ten days whether it accepts provisional liability for medical treatment.

SAMPLE QUESTION ON NUISANCE

QUESTION ONE

Define and discuss the relevance of Nuisance law today?

QUESTION TWO



Discuss with valid ingredients the two types of Nuisance in the Society

QUESTION THREE

Compare and contrast public Nuisance and Private Nuisance in the Society?

UNIT FIVE: DEFAMATION

INTRODUCTIONDefamation is where a statement is published to a third party other than plaintiff injuring their

reputation and lowering their self-esteem in society. It is of two types namely;

TYPES OF DEFAMATION

1 libel which is a defamatory stamen in permanent form as seen in Monson v Tussand

(1849)1 QB 671 where court decided on a wax statute, court further held that anything

which has a permanent lasting form can libel including chalk marks on a wall and it is actionable



per se meaning one is liable without any proof of damages. This defamation can be prosecuted as

crime as well as tort while;

2 slander according to Winfield and Jolowicz is where defamatory statement is made by a

transitory representation usually an orally spoken representation and is temporary. It is

prosecuted as a tort only. It requires proof some injury before a law suit can be brought. Slander

defamation becomes actionable per se under the following circumstance;

Circumstances under slander defamation

Imputation of a criminal conduct where a defendant accuses the plaintiff of a criminal

conduct punishable by imprisonment (most probably not a traffic offence). In Groom

V Crooker [1939] 1KB 194 it was held that there was no need of proof of

damage needed for the solicitor had any criminal record on him. It should however be

noted that words which express suspicion cannot be actionable per se.

Imputation on a plaintiff that they are unfit to run a business. Section 2 of the

defamation act1952 stated that words said to discourage the plaintiff in any office,

vocation or profession.in this case it applies to comments directed at a specific profession

in tasks like accusing a boss of a given firm to have an affair with an employee so can

affect how they are going to perform their duties and obligations. In Berkoff V

Burchill (1996) 4 ALLER a well-known journalist made remarks about Steven

Berkoff an actor and director saying that the film director was a notorious hideous

looking person like a monster comparing the monsters appearance with him and could

not manage the acting. Court held that the words were defamatory for they the plaintiff

up to contempt, scorn and ridicule.

Imputation of a contagious disease though this rule is largely out dated but very

significant. When someone is imputed that they have a contagious disease it can lead to

job loss, social exclusions of that person from society in instances like one being imputed

HIV or AIDS or Ebola such a person will have a such a slander defamation actionable

per se for it holds them up to contempt and lowers their self-esteem.



Imputation of unchastely most especially on women specifically on adultery and

fornication. When a woman imputed in such a manner they are taken as prostitutes in

society and their reputation will be damaged there by lowering their self-esteem. Such

slander is actionable per se.

For defamation to succeed the plaintiff must prove that the following;

ELEMENTS OF DEFAMATION

1. That the statement was a defamatory one injuring a person’s reputation by exposing him

or her to hatred, contempt, and ridicule in society. In Houlton V Jones an article in

newspapers stated that one jones was having an extra marital affair yet he was married

court held that this was a defamatory statement affecting his reputation in society which

knew him as a married man. The court has to determine whether the written or spoken

words were defamatory as a matter of law. If court was in doubt because connotation of

the written/spoken words was ambiguous, then the court had to submit the question to

jury to decide.

2. That the statement was referred to the plaintiff and that it was injurious since the whole

point of defamation law is to take care of injures to reputation, the plaintiff must show it

was aimed at them and their reputation were hurt by the full statement in instances like

losing out on work, rejection by relatives and friends. Someone who already had a

terrible reputation most likely will not collect much in such a suit. If the statement was

made to a group of persons (group defamation) then only one of them can sue for

defamation representing the rest i.e. like doctors in Mulago killed a patient, it would be

one of them to represent the rest in filing the suit.

3. That the statement must be published i.e. the third party other than the plaintiff must have

attained access to the defamatory statement. Publishing not only refers to printing

statements in books or newspapers but also other ways likes televising, art and rumors.

It is from this that the onus will shift to the defendant to prove not liable through claims of;

Unintentional defamation

Consent



The available defenses for the defendant in such circumstances are;

The truth or justification can justify the defamatory comment by proving it’s the truth. In

Sutherland V Stopes [1925] AC 47, the statement must be true in substance and fact

so as long as the statement is substantially true but not completely true the defense will succeed.

If using a rumor that the defendant uses another person’s beliefs or suspicions as the foundation

of his defense, he can only rely on justification if the underlying facts were true. It is no defense

to say that what he was repeating is what he or she had heard.

A Fair comment on a matter in the public interest is a full defense like justification. This is a

particular useful defense, however this defense only applies to expression of the opinion (like I

think…., the truth is …) although the difference between these can sometimes be hard to

determine.

Privileges is another defense in certain situations the night to free speech becomes more

important than the right not to be defamed, there are two types of privileges viz absolute

privileged and qualified privileges. In Absolute privileges is where there complete freedom of

information is needed it can witnessed statements made in parliament, statements in judicial

proceedings ,fair and accurate reports of judicial proceedings, communication by a minister of

other officer of the state to another in the course of duty and Qualified privileges is when the

need for freedom is slightly lower. At common law where a person who makes a

communication has an interest or duty to the person To Whom It May Concern and the person

has the corresponding interest or duty to receive. The burden of proving privilege is on the

defendant but the plaintiff may defeat malice however he or she must show malice by clear and

convincing proof.

Remedies to the Defamed Party

Application to the court for injunction to stop the comment being published if the plaintiff

discovered that discovered that some defamatory comment will is being published or will be

published in the future or a permanent injunction, to prevent any republications as well as

damages, as seen as Karitas Karisimbi V Red pepper Uganda (2004) where



the court granted permanent injunctions to the plaintiff to stop publication of the defaming

statements.

In conclusion it should be noted that defamation is mainly of two types namely slander and libel

but only libel is actionable per se while slander is not actionable per se with exception of a few

circumstances where it becomes actionable that is one has to prove special damages.

SAMPLE QUESTION ON DEFAMATION

QUESTION ONE

Distinguish libel and slander with relevant authorities and discuss the relevance of the law of

defamation today?

QUESTION TWO

Discuss all the elements that one must show to prove defamation?

QUESTION THREE

Explain the meaning of the phrase ‘’libel’’ and “Slander” as applied in defamation with all their ingredients?

UNIT SIX: LIABILITY FOR FIRE & DANGEROUS PREMISES

Unit Contents

Liability for Fire

i) Origin of the principle governing liability for fire

ii) Scope of the principle

iii) Protection under the Fire Prevention (Metropolis) Act, 1774

iv) Position under common law

v) Defences available under the rule



Dangerous Premises

i) Persons under the principle

ii) Position of a Licencee

iii) Position of an Invitee

iv) Position of a Trespasser

v) Defences

Learning Out Comes

By the end of this unit, participants are expected to;

a) Explain the principles governing liability for fire under common law jurisdiction;

b) Know the available remedies under the rule;

c) Know the different defences under the rule;

d) Explain the principle governing dangerous animals;

e) Know the different persons or parties under the principle; and

f) Know the remedies and defences available under the principle.

INTRODUCTIONLIABILITY FOR FIRE

Prior to the case of Rylands vs. Fletcher, it was already established that a person was

liable for the escape of fire and, therefore, the owner of the fire was bound to keep it in at his

peril. The situation has however now been brought within the scope of the rule in Rylands

vs. Fletcher and liability is now dependent on the same principles as have just been

discussed.

It is noted however that no action is maintainable against any person in whose building or on

whose estate a fire begins accidentally. This does not mean that a person is absolved from any

liability for accidental fire whether resulting from negligence or not. The judicial view is that a

person will be liable for the fires caused by his negligence. In England, for instance, it has been



held that the Fire Prevention (Metropolis) Act, 1774, confers no protection even if the fire begins

without negligence that is “accidentally”…provided that the spread of it which caused the

damage was due to negligence.1

It should be noted that in many cases the rule in Rylands vs. Fletcher will not impose

liability because the fire will have been lit in natural user of the land. The defendant will

however be liable if he is negligent.

Salim Omari vs. Jackson Ongea Civil Appeal No. 2 of 1971

Facts:

The appellant gave the respondent permission to use part of his land. When clearing this portion

the respondent set fire to the grass and inspite of the precautions taken the fire escaped because

of the strong winds. Was the respondent liable?

Held:

i) The learned Resident Magistrate relied on a passage by Biron Ag. C.J. in

Rehutulla vs. The Commissioner of Transport2: which reads as follows:

“It is, I consider well established in law that to hold an

occupier of premises liable in damages for the fire

breaking out of such premises, there must be established

negligence on his part”.

1 Musporve vs. Panlelis (1919). 2. KB. 43.2 (1969) H.C.R. No. 293



This statement of law was induced by the Fire Prevention (Metropolis) Act, 1774 which

provided that “no action, suit or process whatsoever shall be entertained or prosecuted against

any person on whose house chamber, stable, barn on other building or whose estate any fire shall

accidentally begin.

Position under Common Law

Under Common Law a person was bound to make good any damage caused by a fire which

started on his premises and moved to another. The act quoted above restricted this absolute

liability only in so far as was accidental i.e. produced merely by chance or where the cause could

not be traced. The passage in the judgement cited above was not a comprehensive statement of

the law. The rule in Ryland vs. Fletcher still applies. There Blackburn J said;

“We think, that the true rule of law is that the person who

for his own purpose brings on his land and collects and

keeps there anything likely to do mischief it escapes must

keep it at his own peril, and if he does not do so, is prima

facie answerable for all the damage which is the natural

consequence of its escape”.

There are exceptions to the rule in the case where the damage is caused by an act of God, default

of the plaintiff or an act of a third party or statutory authority. Subject to these exceptions if an

occupier of lands starts a fire intentionally or by negligence, he is under a duty at his peril to

prevent it from doing damage to others.

In this case, what was set as a defence was that the damage is caused by an act of God in that

reasonable precautions were taken to confine the fire to the respondent’s land but it was blown

into the adjoining shamba. There was no evidence to show what the intensity of the wind was or

that it was anything in the nature of a storm. An ordinary high wind is something quite usual or

natural and the precautions taken should have been such as to anticipate a high wind. I consider



with the due respect to the trial magistrate that the circumstances did not show an Act of God as

would absolve the respondent from liability. He was negligent in that he did not guard against a

foreseeable eventuality and for this reason I allow the appeal.

Abdullah Ramadhani vs. Asinate Kinomwe Civil Appeal No. 103 of

1967 (Tanzania High Court)

Facts:

The plaintiff brought an action for damage to his crop by the spread of fire from the defendant’s

shamba to the plaintiff’s land. In prior criminal proceedings the defendant had been found guilty

of having set fire to crops and was fined. The defendant appealed against criminal conviction

which was quashed because it had not been proved that the defendant had willfully and

unlawfully set fire to crops as required by S.32 of the Penal Code.

Held:

1. The Civil action was not extinguished by the successful appeal in a criminal proceeding,

for the basis of liability is different.

2. In regard to civil liability the court stated;

“If a person starts fire on his shamba and it spreads

into somebody else’s shamba of course he cannot plead

that it was merely bad lack. It is necessary for a person

who stars fire in his shamba, to control, it and if he

cannot or does not control it, and it spreads into

somebody else’s shamba he must pay compensation for

the damage he has done”.



Ruhutulla Badeli vs. The Commissioner of Transport, The East

African Railway and Harbours Civil Case No. 157 of 1967 (Tanzania

High Court)

Facts:

By a lease entered into in or about March, 1996, the plaintiff demised to the administration

premises situated at Vwawa. The premises were destroyed by fire on 27th November, 1996 and

the plaintiff sued for damages in tort.

HELD:

Biron, Ag, C.J. noted that;

“It is I think not disputed that the law in this country with

regard to liability for fire is the same as in England as

provided for in S.2 (2) and S.2 (2)… Although the law in

England regarding liability for fire was at one time

absolute, since the passing of the Fire Prevention

(Metropolis) Act 1774 which extends to the whole

country” no action, suit or process whatsoever shall be

entertained or prosecuted against any person in whose

estate any fire shall accidentally begin”.

Without citing any authority it is well established that responsibility for damage will not lie

unless negligence has been established. I consider that it is now well established that in cases of

fire the doctrine of res ipsa loquitor (so as to render the occupier of the premises where a fire

breaks out liable) without any further proof of negligence will not apply. Without indulging in an

academic exercise as to how fire can and do break out, it is, I consider will established in law

that for an occupier of premises to be liable in damage for fire breaking out on such premises,

there must be positively established negligence on his part.PREPARED BY Mr. OKIYA JIMMY JANSKY


Collingwood vs. Home & Colonial Stores (1936). 155. L.T. 550

Facts:

A fire broke out in the defendant’s premises as a result of the defective condition of the electrical

wiring and spread to the premises of the plaintiff.

Held:

The defendant could claim the protection of the statute because they had not been negligent; nor

was Rylands vs. Fletcher rule applicable; for the installation of electric wiring was a reasonable

and natural user of premises.

Balfour vs. Darty Kin (1957). 1. QB. 496. C.A

Facts:

The pipes in the defendant’s flat were frozen and an independent contractor was employed to

thaw them. He applied a blow lamp to the pipes which were partly covered with felt. The felt

caught fire and the fire spread rapidly to the plaintiff’s house and caused considerable damage.

Held:

I. The independent contractor was negligent; and

II. A house holder is liable for the escape of fire from his premises due to negligence of an

independent contractor and the defendant was, therefore, liable.

Again, if a person who, without statutory authority brings fire into dangerous proximity to

another’s land, he does so at his peril, and is liable if it does damage whether he has been

negligent or not. Thus where the defendant, without statutory authority used a steam engine on a

highway, it was held that the defendant was liable for the damage resulting from the escape of



sparks, a part from negligence.3 But railway companies acting under statutory authority are

generally liable only for fires caused by their negligence.

DANGEROUS PREMISES

While discussing nuisance, we noted that the occupier of the premises is liable in nuisance if,

owing to the defective state of those premises, injury is caused to persons on adjoining land or on

the highway. In the present discussion we shall now consider the liability of the occupier of the

premises to persons who suffer injury by reason of the defective or dangerous state of the

premises to persons who suffer injury by reason of the defective or dangerous state of the

premises while such persons are actually on the premises themselves. These persons fall into the

following categories:

a) Persons coming by permission, solely of their own choice, and on their own business

(examples licencees and guests).

b) Persons induced to come on business and interest of the occupant alone, or of themselves

and the occupant (examples invitees, customers).

c) Persons entering into premises without permission (example trespassers).

LICENCEE

A licencee is a person who enters on premises under a licence expressed or implied, from the

occupier. For example, a guest at a house is a licencee. Similar persons who enter premises to

solicit orders, or to beg, to hold any communication with the occupier are licencees.

When a licencee is injured on land occupied by the licensor he can only maintain an action

against his licensor when the danger through which he has sustained injury was one which the

licensor knew but of which the licencee was unaware. The licensor knows of the danger if he

knows that there is present a physical object capable of being put in a dangerous condition by the

action of third persons who are likely to act in such a way as to put it in a dangerous condition.

3 James vs. Festining Rail Co. L.R. 3 Q.B. 733PREPARED BY Mr. OKIYA JIMMY JANSKY


And this is so, although the licensor could not know, and did not foresee, the precise manner in

which the dangerous condition would translate itself into an actual casualty.4

If however, the danger is obvious, the licensee must look out for himself. It is one to be expected,

he must expect and take his own precautions.5 (Mersy Dooks and Hariour Board Vs

Procter (1923) A.C.253).

But the occupier must not create new traps without taking precautions to protect the licencees

against them. For instance, a person who knows that the public are going over his ground is not

entitled, without warning or notice to put a dangerous beast which is likely to do some injury to

persons crossing the grounds. (Lowry Vs Walker (1911) A.C.1014).

(b) INVITEE

An invitee is a person who is on the premises for some purpose in which he and the occupier

have a common interest. For instance, an intending customer entering a shop is an invitee.

The distinction between an invitee and a licencee is that the invitor and the invitee have a

common interest, but the licensor and the licencee have none. Those who are invited as guests

whether from benevolence or for social reasons, are not in law invitees but licencees. The law

does not take account of the worldly advantages which the host may remotely have in view.

The duty of an invitor is to prevent damage to an invitee from unusual danger. If an invitee

acting reasonably and exercising due care for his own safety, does not appreciate the existence of

the danger, or its nature, it will be to him an unusual danger.6 The invitor is liable for damage

caused to the invitee by reason of the existence of a trap of which the invitor knew or ought to

have known about. It is not necessary, however that the danger which caused the accident to the

invitee should be hidden. The invitor may still be liable to the invitee for a danger of which the

4 Pearson Vs Lambeth Borough Council (1950) 2 KB 3555 Lathan Vs R. Johnson & Nephew Ltd. (1913) 1 KB 399.

6 Horton Vs London Graving Dock Co. Ltd (1949) K.B 584PREPARED BY Mr. OKIYA JIMMY JANSKY


invitee was aware, but which he could not avoid by the exercise of reasonable care on his part,

unless the invitor can prove that the invitee was not only aware of it but voluntarily accepted the

risk.7

Invitees may be divided in two categories:

a) Those who do not pay for their presence on the premises; and

b) Those who are on the premise on payment.

Persons falling under category (a) are entitled to expect, (using reasonable care on their part for

their own safety) that the occupier shall on his part use reasonable care to prevent damage from

unusual danger, which he knows or ought to know. The duty is limited to those places to which

the invitee might reasonably be expected to go in the belief reasonably entertained, that he was

entitled or invited to do so.

With regard to the persons falling under category (b) there the occupier of premises agrees for

reward that a person shall have the right to enter and use them for a mutual contemplated

purpose, the contract between the parties contained in an implied warranty that the premises are

safe for that purpose as reasonable care or skill on the part of any one can make them.

In England, the liability of the occupier towards persons entering into his property is now

governed by the occupier’s Liability Act, 1957. The Act has abolished the distinction between

the two categories “licencees” and “invitees”: they all are “visitors.” A visitor may be defined as

anyone who has the express or implied permission of the occupier to be on the premise. For

example, a guest to dinner is in house with the express permission of the host purpose of which

he has been invited. He is not invited to use any part of the premises for the purposes which he

knows are wrongly dangerous and constitute an improper use. The plaintiff entered the premises

7 Ibid.



as an invitee but became a trespasser at the time of his fall into the ditch because he had started

to do his own acts.

Lowery Vs Smaller (1911) A.C 10.

Facts:

The defendant turned a savage horse into a field of which he was the occupier and which to his

knowledge, members of the public habitually used on their way to a station. The defendant had

verbally objected to this use by the public and at one time had put up a “No Trespassers” sign but

had taken no more effective measure because some members of the public were his customers.

The plaintiff was attached, bitten and stamped on by the horse.

Held:

The plaintiff the defendant’s implied permission to go across the field and so could recover.

Ashdown vs. Samuel Williams & Sons Ltd (1957)1 QB 409.)

Facts:

In a dock area there were a number of railway sidings. A notice declared that “every person

whilst on the said property is there entirely at his own risk” and then went on to amplify that

warning at some length. The plaintiff was lawfully on the property; was in a position of “visitor”

and was injured by the defendant’s shunting operations which were admittedly negligent.

Held:

The plaintiff having been warned, the defendants were absolved from liability for their

negligence.

© TRESPASSER

A trespasser is a person who goes on the land of another without permission of any sort and

whose presence is either unknown to the occupier, or, if it is known, is objected to. It would thus

seem that no one is trespasser who enters by authority of law, by permission of the occupier

(express or implied) or by the occupier’s acquiescence in continued acts of trespass.



The duty of an occupier towards a trespasser comes lowest in the scale. The general principle is

that he who enters wrongly does so at his own risk. But a trespasser is not entirely without right

and the general rule is subject to the qualification that the occupier must not;

a) Do any act which is calculated to injure the trespasser or

b) Do any act which if done carelessly must reasonably be contemplated as likely to injure

him.

Thus a trespasser will have a right of action if the occupier deliberately sets a vicious dog on him

or if he is injured by a mantrap put on the land by the occupier with the object of injuring

trespassers. On the other hand, if a trespasser is injured merely by some concealed danger on the

premises or by some reasonable method of protection of the premises (e.g. broken glass along

the top of a wall; an ordinary house dog) he will have no right of redress. Moreover it is not the

duty of the occupier to look out for the possibility of the existence of a trespasser on his land. He

may, for example, go shooting on his land without previously searching for trespassers who

might be wounded.

Mounton vs. Poulter, (1930) K.B 185)

Facts:

The defendant, a nursery man, was felling an elm tree for the occupier of land. Knowing that the

tree is about to fall and did not repeat the warning he had previously given to children to go away

and the tree fell and injured the plaintiff aged ten. Held: The defendant was liable, even though

the plaintiff was a trespasser, for he had acted in reckless disregard of the plaintiff’s presence.

Hardy Vs Central London Rly. (1920).3 K.B 459.

Facts:

The plaintiff, a child, was injured on the moving stair case of an underground railway. Children

were in the habit of playing on the staircase but were driven away by station officials whenever

they were seen by them. Held: the plaintiff was a trespasser and could not recover.

5. Act of God



An act of God is an event which 'no human foresight can provide against, and of which human

prudence is not bound to recognise the possibility' (per Lord Westbury, Tennent v

Earl of Glasgow (1864) 2 M (HL) 22 at 26-27). Nichols v Marsland

(1876) 2 ExD 1: Exceptionally heavy rain caused artificial lakes, bridges and waterways to

be flooded and damage adjoining land. The D was not liable.

6. Default of the claimant

If the escape is the fault of the claimant there will be no liability. Alternatively, there may be

contributory negligence on the part of the claimant.

SAMPLE QUESTION ON LIABILITY FOR FIRE AND DANGEROUS PREMISES

QUESTION ONE

Discuss the origin of the principle of liability for fire and dangerous premises?

QUESTION TWO

Discuss the scope of the principle of liability for fire and dangerous premises?

QUESTION THREE

Discuss the common law standing on the principle of liability for fire and dangerous premises?

UNIT SEVEN: PRINCIPLES GOVERNING THE AWARD OF

DAMAGES IN CIVIL CASES



Unit Contents

vi) Working definition

vii)Classification of damages

viii) Rules and Principles in awarding damages

ix) Application in tort

x) Remoteness

xi) Application in contract

xii)Aggravation and mitigation of damages

xiii) Aggravation in tort

xiv) Mitigation in tort

xv) Contribution and apportionment

xvi) Distinct rules for measure of damages in contract and tort

xvii) Appeals

xviii) Recommendations on practice and procedure

Learning Out Comes

By the end of this unit, participants are expected to know;

a) the legal definition of damages;

b) the different classification of damages;

c) the rules and principles governing the award of damages;

d) how to ascertain damages;

e) the application of the rules in contract and tort;

f) how damages become remote;

g) the principles governing mitigation of damages in tort and contract;

h) how damages are apportioned;

i) the distinct rules for measure of damages in contract and tort;

j) how these principles are applied in pleadings and practice;

k) how damages are proved; and



l) Come up with the necessary recommendations on the law governing award of damages in

civil cases.

INTRODUCTION

DEFINITION AND CLASSIFICATION OF DAMAGES

I. DEFINITION OF DAMAGES

1. Damages are the pecuniary recompense given by process of law to a person for the

actionable wrong that another has done him.8 Lord Greene MR, in Hall

Brothers SS Co. Ltd V. Young9 defined the term damages thus:

“Damages’ to an English lawyer imports this idea,

that the sums payable by way of damages are sums

which fall to be paid by reason of some breach of duty

or obligation, whether that duty or obligation is

imposed by contract, by the general law, or

legislation.”

Indeed, this is the way damages are broadly appreciated in most jurisdictions in the

Commonwealth, including Uganda.

2. Damages are, in their fundamental character, compensatory, not punishment. Whether the

matter complained of is a breach of contract or tort, the primary function of damages is to

place the plaintiff in as good a position, so far as money can do it, as if the matter

8 12 Halsbury’s Law (4th edn) Para 12029 [1939] I KB748, at 756 (CA).



complained of had not occurred. As we shall see later, this primary notion is controlled

and limited by various considerations, but the central idea remains compensation.

Accordingly, damages are usually measured by the material loss suffered by the

plaintiffs. As a general rule, the plaintiff must not receive more, nor should he receive

less than the appropriate measure of damages commensurate with his or her ‘material

losses.

3. However, in certain circumstances, the court may award more than the normal measure

of damages, by taking into account the defendant’s motives or conduct, and in this case

the damages may be ‘aggravated damages’ which are compensatory or ‘exemplary

damages’ which are punitive.10 We shall return to this distinction later.

4. A statute may create a civil action for damages directly, and may also define the criteria

for the assessment of damages. By statute, common law remedies may be excluded or

limited, or a limit may be put on the damages recoverable.11 Examples of such statutes in

Uganda include the Law Reform (Miscellaneous Provisions) Act, Cap

79; the Employment Act12 2006, National Environment Act13,

Cap 153; Occupation Safety and Health Act14 2006; and

Workers Compensation Act, Cap 225. In this context, damages may be

referred to as ‘statutory damages’.

CLASSIFICATION OF DAMAGES

10 12 Halsbury’s Law (4th edn) para 111211 12 Halsbury’s Law (4th edn) Para 111512 See for instance 66 (4), 67 (4), 70 (3), 78, 79, 87, 88, 89, 90, 92, and 96 (4) of the Employment Act, 2006.13 See for instance, s. 67 of the National Environment Act, which enables the award of compensation on an environmental restoration order.14See for instance s. 102 of the Occupational Safety and Health Act which enables the application of a statutory penalty to the compensation of the victim of a statutory offence.



1. Generally speaking, there are three kinds of damages: general damages, special damages

and nominal damages.

General and special damages

2. General damages, according to Lord Macnaghten in the oft-cited case of

Storms V. Hutchinson 1905 AC 51515, are such as the law will presume to

be the direct natural or probable consequence of the act complained of. Special damages,

on the other hand, are such as the law will not infer from the nature of the act. They do

not follow in the ordinary course. They are exceptional in their character, and, therefore,

they must be claimed specially and proved strictly.

3. Indeed, because of their peculiar nature, the law requires a plaintiff to give warning in his

pleadings of the items constituting his claim for special damages with sufficient

specificity in order that there may be no surprise at the trial. See Musoke V.

Departed Asians Custodian Board [1990- 1994] EA 219; Uganda

Telecom V. Tanzania Corporation [2005] EA 351; Mutekanga V.

Equator Growers (U) Ltd [1995-1998] 2 EA 219; Uganda

Breweries Ltd. V. Uganda Railways Corporation Supreme Court

Civil Appeal No. 6 of 2001 (unreported).

4. In current usage; ‘special damages’ relate to past pecuniary loss calculable at the date of

trial, whilst ‘general damages’ relate to all other items of damage whether pecuniary or

non-pecuniary. Thus in a personal injuries claim, special damages encompass past

expenses and loss of earnings, whilst ‘general damages’ will include anticipated future

loss as well as damages for pain and suffering and loss of amenity.16 See Uganda

Commercial Bank V. Deo Kigozi [2002] 1 EA 293.

15 [1905] AC 515 16 12 Halsbury’s Laws of England (4th edn) Para 1113



5. In other words, special damages, both in the law of contract and tort, denote the damages

arising out of the special circumstances of the case which, if properly pleaded, may be

superadded to the general damages which the law implies in every breach of contract and

every infringement of an absolute right.17

6. It is important to note that he term ‘special damage’ is sometimes used in actions on the

case brought for a public nuisance, such as an obstruction of a river or highway, to denote

the actual and particular loss which the plaintiff must allege and prove beyond what is

sustained by the general public.18.

Nominal Damages

7. Nominal damages have been famously referred to as a mere peg on which to hand costs.

According to Maule J. in Beaumont V. Great head19, nominal damages, in

fact, mean a sum of money that may be spoken of, but that has no existence in point of

quantity. For instance, where the seller brings an action for the non-acceptance of goods,

the price of which has risen since the contract was made. In practice, a small sum of

money is awarded; say one dollar or its equivalent.

8. However, nominal damages must be distinguished from, small or contemptuous damages,

which indicate the court’s opinion that the action ought not to have been brought.20 This

distinction is borne out by Njareketa V. Director of Medical Services

Mulago [1950] 17 EACA 6021 where Sir Barclay Nihill C. J. reduced a

17 Ashby V. White [1703] 2 Ld Raym 93618Ratcliffe V. Evans [1892] 2 Q B 524 at 528, 529, (CA). See also Byabazaire V. Mukwano Industries (unreported).19 (1846) 2 CB 494; 135 ER 1039.2012 Halsbury’s Laws of England (4th edn) Para 1112 21[1950] 17 EACA 60. The appellant, a patient of 24, had a malignant growth on his leg: it was found necessary to amputate his leg to save his life; the patient at first consented but afterwards withdrew his consent. The second defendant, a government surgeon, went on to perform the life-saving medical operation and the plaintiff successfully brought an action in



substantial award that the trial judge had made in favor of the appellant and termed as “

merely nominal damages” to one cent and set aside the learned trial judge’s order as to

costs. The facts of that case provide room for interesting reading.

9. There is a great deal of confusion on this point, and for clarification, we can quote from

the famous passage of Lord Halsbury L.C in The Medina [1900] AC 11322.

“Nominal damages’ is a technical phrase, which means

that you have negatived anything like real damage,

but that you are affirming by your real damage that

there is an infraction of a legal right, which, though it

gives you no right to any real damages at all, yet

gives you a right to the verdict or judgement because

your legal right has been infringed. But the term

‘nominal damages’ does not mean small damages.”

(emphasis added).

the High Court of Uganda against the defendants for damages arising out of the trespass committed to his person calculated at 30,000/=. The trial judge awarded the plaintiff what he termed as ‘nominal damages’ in addition to costs against the defendants. The appellant appealed for a larger quantum of damages and the defendants cross appealed on the issue of damages. Held, but for the action of the second defendant, the appellant’s children would now be fatherless and his wife a widow. Instead of expressing gratitude to the second defendant he is now pressing for payment by the second defendant for injury done to him…What timority! He has in fact suffered no damage by reason of the trespass. This being the case we think the damages fixed by the learned trial judge, although he regarded them as merely nominal, are in fact high taking into regard the class and community from which the appellant comes… it is not due to our lack of compassion for the appellant to the realization that it is necessary to protect the government medical department and all surgeons from unscrupulous claims of this nature that we reduce the nominal damages awarded to the appellant to one cent and set aside the learned judge’s order as to costs. The appellant may certainly be a fit subject for charitable assistance but he is entitled to nothing in law, and he should never have brought this action. 22The Medina [1900] AC 113: [1900 – 3] ALL.ER Rep 126.



10. Thus, a plaintiff in an action for wrongful deprivation may recover substantial damages

for the deprivation, though he may have incurred no out-of pocket expenses consequent

thereon. By way of conclusion on this point, it may be appropriate to quote again from

Lord Halsbury:

“A plaintiff is entitled to ‘nominal damages’ where;

a)His rights have been infringed, but has not in fact

sustained any actual damage from the infringement,

or he fails to prove that he has; or

b)Although he has sustained actual damage, the

damage arises not from the defendant’s wrongful act

but from the conduct of the plaintiff himself; or

c) The plaintiff is not concerned to raise the question of

actual loss, but brings his action simply with the view

of establishing his right.”23

Exemplary damages

11. A keen reader of our law reports will soon observe that litigation lawyers in Uganda have

a strange obsession for exemplary damages yet very few actually understand the nature

and essence of this kind of damages. They will jump at every opportunity to declare in

their plaints. “We want exemplary damages, My Lord.” Mercifully for their adversaries,

2312 Halsbury’s Law (4th edn) Para 1114 PREPARED BY Mr. OKIYA JIMMY JANSKY


the courts of judicature do not at all share the lawyers’ enthusiasm and have, in fact,

safely avoided setting a dangerous precedent24.

12. But what exactly are exemplary damages? The dictum of McCardie J. in

Butterworth V. Butterworth [1920] P 12625 is as helpful today as it was

the past century:

“Simply put, the expression exemplary damages mean

damages for ‘example’s sake’. These kinds of damages

are clearly punitive or exemplary in nature. They

represent a sum of money of a penal nature in addition

to the compensatory damages given for the pecuniary

or physical and mental suffering.”

13. The award of exemplary damages was considered by the House of Lords in the landmark

case of Rookes V. Barnard26. Lord Devlin stated that in his view there are only

three categories of cases in which exemplary damages are awarded, namely:

a) Where there has been oppressive, arbitrary, or unconstitutional action by the

servants of the government, and

b) Where the defendant’s conduct has been calculated by him to make a profit

which may well exceed the compensation payable to the plaintiff, and

24Except for the dicta in Sin… V. Ankole District Administration Civil Suit No. 463 of 1969 which were based on the dissent of other Commonwealth courts with respect to the principles formulated in Rookes V. Barnard [1964] All ER 367. See E. Vietch, The Law of Tort in East Africa, PP. 252- 253 for the commentary on this odd case.25Butterworth V. Butterworth & Englefield [1920] P 126. 26 [1964] All ER 367 AT 410-411. In some courts within the Commonwealth, there have been some criticisms of the principles formulated by the House of Lords in Rookes V. Barnard. See for example Austrian Consolidated Press Ltd V. Uren [1967] 3 All ER 523, PC.



c) That some law for the time being in force authorises the award of exemplary

damages.

Furthermore, according to Lord Devlin in Rookes V. Barnard, above when

considering the making of an award of exemplary damages, three matters should be

borne in mind:

a) Plaintiff cannot recover exemplary damages unless he or she is the victim of

punishable behavior ;

b) The power to award exemplary damages should be used with restraint; and

c) The means of the parties are material in the assessment of exemplary damages.

14. It has been held in two cases, Kiwanuka V. Attorney General (Uganda)27,

and Visram & Karsan V. Bhatt28, by the Court of Appeal for Eastern Africa that

the dicta of the House of Lords in Rookes V. Barnard, above, accurately stated the

law of East Africa with respect to exemplary damages. The principles formulated in

Rookes V. Barnard, above, were also endorsed by Spry VP of the East Africa

Court of Appeal in the oft-cited case of Obongo & Another V. Municipal

Council of Kisumu [1971] EA 91; by the High Court of Uganda in following

cases: Ongom & Another V. Attorney-General [1979] HCB 267;

Kyambadde V. Mpigi District Administration [1983] HCB 44;

Nsaba Buturo V. Munnansi Newspaper [1982) HCB 134,

Ntabgoba V. Editor- in-chief of the New Vision & Another

[2004] 2 EA 234; Bhadelia Habib Ltd V. Commissioner General,

URA [1997-2001] UCL 202; and most recently by the Supreme Court of Uganda

27 EACA No. 19 of 1965 (CA)28[1965] EA 789



in the landmark case of Fredrick J. K. Zaabwe V. Orient Bank & Others

Supreme Court Civil Appeal No. 4 of 2006 (unreported).

15. In all the cases referred to above, the court was firmly aware of the nature of exemplary

damages and when they should be awarded. By way of emphasis, however, we need to

restate here the rationale behind the award of exemplary damages: exemplary damages

should not be used to enrich the plaintiff, but to punish the defendant and deter him from

repeating his conduct.

16. It is a considered view that in an action where an outrage has been committed against the

plaintiff by the defendant and the court forms the opinion that it should give punitive

damages to register its disapproval of the wanton and willful disregard of the law, it is

entirely proper to award exemplary damages in addition to general damages and special

damages, if any.29 However, an award of exemplary damages should not be excessive.

The punishment imposed must not exceed what would be likely to have been imposed in

criminal proceedings, if the conduct were criminal.30 All circumstances of the case must

be taken into account, including the behaviour of the plaintiff and whether the defendant

had been provoked.31 For instance, although abuse of police powers should almost

always attract exemplary damages, this is by no means a statement of an independent

principle. Litigation lawyers would, of course, disagree

AGGRAVATED DAMAGES

17. There is a thin line between exemplary damages and aggravated damages, and as a result,

there has arisen a lot of confusion of thought in this area. But actually the two concepts

are different, as the supreme court of Uganda recently explained in the landmark case of

29See for instance London V. Ryder [1953] I All ER 741, where the court utilized the award of exemplary damages to teach a defendant who had acted with a cynical disregard of the plaintiff’s rights a lesson that “a tort does not pay.”30Per Spry V.P. in Obongo & Another V. Municipal Council of Kisumu [1971] EA 91 31See O’Connor V. Hewiston [1879] Crim LR 46, CA; Archer V. Brown [1985] QB 401



Fredrick J. K. Zaabwe V. Orient Bank & Others Supreme Court

Civil Appeal No. 4 of 2006 (unreported.32

18. Aggravated damages are “extra compensation to a plaintiff for injury to his feelings and

dignity caused by the manner in which the defendant acted. Exemplary damages, on the

other hand, are damages, which in certain circumstances only, are allowed to punish a

32“With regard to exemplary damages, the appellant seems to equate them with aggravated damages. SPRY, V.P. explained the difference succinctly in OBONGO -VS- KISUMU MUNICIPAL COUNCIL [1971] EA 91, at Page 96; “The distinction is not always easy to see and is to some extent an unreal one. It is well established that when damages are at large and a court is making a general award, it may take into account factors such as malice or arrogance on the part of the defendant and this injury suffered by the plaintiff, as for example, by causing him humiliation or distress. Damages enhanced on account of such aggravation are regarded as still being essentially compensatory in nature. On the other hand, exemplary damages are completely outside the field of compensation and, although the benefit goes to the person who was wronged, their object is entirely punitive.”In the circumstances of this case, as discussed in this judgement, I do not think this is a case that qualifies for an award of exemplary damages as envisaged in ROOKES –VS- BARNARD AND OTHERS [1964] AC 1129, which is very well considered by SPRY – VP in his judgment in the Obongo case (supra) at Page 94. The gist of those exemplary damages may be awarded in this class of case. In the words of SPRY, V.P. at P.94 these are: “first, where there is oppressive, arbitrary or unconstitutional action by the servants of the government and, secondly, where the defendant’s conduct was calculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff. As regards the actual award, the plaintiff must have suffered as a result of the punishable behaviour; the punishment imposed must not exceed what would be likely to have been imposed in criminal proceedings if the conduct is to be taken into account. It will be seen that the House took the firm view that exemplary damages are penal, not consolatory as had sometimes been suggested.” It has to be borne in mind that the respondents were private persons and not acting on behalf of any government or authority. I think this is a case where the appellant should receive enhanced compensatory damages not only for the unwarranted and wrongful deprivation of his property, but also because of the conduct and apparent arrogance of the respondents. In my view, this is not the type of case where the respondents are likely to repeat their wrongs on the appellant. In considering an award of enhanced or substantial general damages, one must take into account the station in life of the appellant. He is a senior lawyer and a respected member of society. He has a family who all lived on the property from which they were wrongfully evicted. Part of the property was used as offices for his law chambers. The appellant testified that as a result of this eviction, he had to find alternative accommodation for his family. He lost not only some of his books and files but also his clients. His livelihood as a lawyer was compromised. He suffered much humiliation and distress. He has since been denied use of his property for the period of about 10 years. The appellant had made a total claim for Shs. 307,000,000/=, I am of the view that this is a case where substantial damages should be awarded. Given the circumstances of this case, I would award to the appellant Shs. 200,000,000/= (two hundred million) as aggravated damages. Per Katureebe JSC, who delivered the opinion of the Court.



defendant for his conduct in inflicting the harm complained of.”33 For the distinction

between these two species of damages, see also the following cases: Obongo &

Another V. Municipal Council of Kisumu [1971] EA 91; Ongom &

Another V. Attorney-General [1979] HCB 267; Kyambadde V.

Mpigi District Administration [1983] HCB 44; Nsaba Buturo V.

Munnansi Newspaper [1982] HCB 134; Ntabgoba V. Editor-in-

chief of the New Vision & Another [2004] 2 EA 234; Bhadelia

Habib Ltd. V. Commissioner General, URA [1997-2001] UCL

202; Ahmed Ibrahim Bholm V. Car & General Ltd Supreme

Court Civil Appeal No. 12 of 2002.

19. For a finer distinction between exemplary damages and aggravated damages, it is

appropriate again to refer the famous passage of Lord Devlin in the landmark case of

Rookes V. Barnard, above:

“English law recognized the awarding of exemplary

damages, that is, damages whose object was to punish or

deter and which were distinct from aggravating damages

(whereby the motives and conduct of the defendant

aggravating the injury to plaintiff would be taken into

account in assessing compensatory damages)… The fact

that the injury to the plaintiff has been aggravated by the

malice or by the manner of doing the injury, that is, the

insolence or arrogance by which it is accompanied, is not

justification for an award of exemplary damages;

33Per McCarth J. in Huljich V. Hall [1973] 2 NZLR 279 at 287; a case from New Zealand. PREPARED BY Mr. OKIYA JIMMY JANSKY


aggravated damages can do in this type of case what

otherwise could be done by exemplary damages.”

20. From the foregoing, it is imperative that we need to comprehend the distinction between

aggravated damages and exemplary damages. Aggravated damages are, by their nature,

intended to compensate the plaintiff whereas exemplary damages are, by their nature,

intended to punish the defendant.34

21. When is it proper to award aggravated damages? The short answer is when aggravating

circumstances exist in the act or intention of the wrongdoer. Such damages, although

compensatory, may be given under a different head to represent a solatium to the plaintiff

for the distress, anxiety and further injury to feelings, reputation, dignity etc caused by

the manner in which the defendant acted. In every case considered appropriate for the

award of aggravated damages, the court should always point out what it considers to be

‘aggravating circumstances’ in order to justify the basis of its award. Common examples

of ‘aggravating circumstances’ or ‘aggravating factors’ from the reported cases include,

but are not necessarily limited to, malice, ill-will, or persistence in a falsehood exhibited

by a defendant to the detriment of the plaintiff. Consider the case of a publisher who

unsuccessfully attempts to plead and prove justification in answer to a defamation claim

arising out of a libelous article.35 The courts frown upon such an attitude on the part of

the defendant and view it as an aggravated factor.

LIQUIDATED DAMAGES

22. Liquidated damages are unique to claims for breach of contract. The parties may agree by

contract. The parties may agree by contract that a particular sum is payable on the default

34For the essential distinction between aggravated and exemplary damages, it is often said that the former represents a solatium to the plaintiff, and the latter a punishment of the defendant. Per Mahon J. in A v. B [1974] I NZLR 673 at 677. See also Loomis V. Rohan (1974) 46 DLR (3d) 423. 35See for instance Ntabgoba V. Editor-in-chief of the New Vision & Another [2004] 2 EA 234.



of one of them, and if the agreement is not obnoxious as a ‘penalty’ such a sum

constitutes ‘liquidated damages’ and is payable by the party in default. The term is also

applied to sums expressly made payable as liquidated damages under a statute. In every

other case, where the court has to quantify or assess the damages or loss, whether

pecuniary or non-pecuniary, the damages are said to be ‘unliquidated’.36

23. In all cases where the parties by their contract agreed a sum payable in case default of by

one of them, it is always a question of law for the court to determine whether or not such

a sum should be paid by the party in default.

24. If this sum is a genuine pre-estimate of the loss which is likely to flow the breach, then it

represents damages, called ‘liquidated damages’ and it is recoverable without the

necessity of proving the actual loss suffered. If, however, the stipulated sum is not a

genuine pre-estimate of the loss but it is in the nature of a ‘’penalty’ intended to secure

performance of the contract then, it is not recoverable, and the plaintiff must prove what

damages he can.37

RULES AND PRINCIPLES IN AWARDING DAMAGES

I. Some general rules and principles

1. No damages can be given on an indictment.38

36 12 Halsbury’s Laws of England (4th edn) Para 110937 12 Halsbury’s Law (4th edn) Para 1116. See also Dunlop Pneumatic Tyre CO. ltd V. New Garage & Motor Co. Ltd. [1915] AC 79 at 86, 87 per Lord Dunedin: “The question whether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided upon the terms of each particular contract, judged of as at the time of the making of the contract, not at the time of the breach.”38Seeles’ case (1639) Cro EAR 557; 79 ER 1080.



2. In all civil actions, the law does not so much regard the intent of the actor as the loss and

damage to the party suffering.39 This rule is recognized more in breach than observance.

This does not always mean that a court proceeded on wrong principle. We shall explain

this later. But for illustration, we can all remember here the dicta of Sir Barclay Nihill

C.J in Njareketa, above:

“The appellant does not seem to comprehend that but for

the action of the second defendant, the appellant’s

children would now be fatherless and his wife a widow.

Instead of expressing gratitude to the second

defendant he is now pressing for payment by the second

defendant for injury done to him… what timority!”40

3. The law presumes damage in respect of any unlawful act.41 The essence of this rule is

that whenever there is a breach of a contract or any injury to a legally enforceable right or

interest, nominal damages are recoverable even though the plaintiff may not be able to

prove actual damage. See Ongom & Another V. Attorney-General

[1979] HCB 267; Bhadelia Habib Ltd. V. Commissioner General,

URA [1997-2001] UCL 202; Ssendi Edward V. Crown Beverages

Ltd [2005] 2 ULSR 7; Karim Hirji V. Kakira Sugar Works Ltd.

[2005] 2 ULSR 60.

4. Public policy considerations may operate to prevent a plaintiff from claiming damages in

an unworthy cause. Courts are the custodians of public morals and they may justifiably

preclude a plaintiff from an award of damages in order to register their disapproval with

the plaintiff’s case if it offends public policy or outrages morality. This power is implicit

39Bessey V. Olliot and Lambert (1682) T Raym 467: 83 ER 244.40See endnote 14. 41In the oft-cited case of Ashby V. White 92 ER 126, Holt CJ stated the principle thus: “Every injury imports damage, though it does not cost the party a shilling and it is impossible to prove the contrary. Any injury imports damage when a man is hindered of his rights.”



in the provisions of S. 14 (2) (c ) and S. 14 (3) of the Judicature Act, Cap 13, which read

in relevant:

“14. Jurisdiction of the High Court.

(2) Subject to the Constitution and this Act, the

jurisdiction of the High Court shall be exercised-

(a)

………………………………………………………………………………………

……….

(b)

………………………………………………………………………………………

……….

(c) Where no express law or rule is applicable to any

matter in issue before the High Court, in conformity with

the principles of justice, equality and good conscience.

(3) The applied law, the common law and the doctrines of

equity shall be in force only insofar as the circumstances

of Uganda and of its peoples permit, and subject to such

qualifications as circumstances may render necessary.”



For instance, in Njarekata V. Director of Medical Service Mulago, above, the

Court of Appeal for Eastern Africa held that a twenty four year old appellant, with a wife and

children depending on him, who withdrew his consent to a life-saving medical operation, was not

entitled to nominal damages but rather contemptuous damages only for the trespass committed

against him by a skilled doctor. Delivering the opinion of the court, Sir Barclay Nihill CJ said:

“It is not due to our lack of compassion for the appellant

but to the realisation that it is necessary to protect the

government medical department and all surgeons from

unscrupulous claims of this nature that we reduce the

nominal damages awarded to the appellant to one cent

and set aside the learned judge’s order as to costs. The

appellant may certainly be a fit subject for charitable

assistance, but he is entitled to nothing in law, and he

should never have brought this action.”42

5. It is my hope that this case can remind your Lordships of your public duty to keep mere

busy bodies out of the court room.

42 For a similar approach, see also Udale V. Bloomsbury Area Health Authority [1983] 2 ALLER 522, which held that it was contrary to public policy to award damages to a mother whose child had been conceived after the mother had undergone a negligently performed sterilization operation to cover the cost of carrying out necessary extensions to the home and of bringing up the child because:

a) It was highly undesirable that the child should learn that a court had declared that his life or birth was a mistake and that he was unwanted or rejected.

b) The appropriate measure of damages in such a case would denigrate virtue.c) Medical practitioners who would incur liability would be placed under pressure to

authorize or carry out abortions, andd) The birth of healthy, a normal baby was a beneficial, not a detrimental, event.

However, those public policy considerations did not preclude an award of damages for lost income and also of pain, suffering, inconvenience, anxiety and the disruption to the family’s finances caused by the unexpected pregnancy.



6. In sum, the rules and principles I have briefly highlighted in this part may appear to

contradict themselves or other rules of the common law and equity. That may be so but it

should not be strange for a judicial mind in the Commonwealth. The rules of the common

law and equity must be given a harmonious interpretation taking into regard the

circumstances of the case at bar. It is important to clarify this matter because in future,

some lawyers appearing before courts of law may implore court to hold that one rule of

the common law exclude another. Such an approach to the rules and principles governing

damages can only have the effect of creating absurdity and exacerbating the confusion

that underlies this area of the law.

II. Whether proof of actual damage is essential

1. We have already observed above that whenever an injury is done to a right, the

law will presume damage. Thus, as a general rule, proof of actual damage is not

essential to entitle a plaintiff to an award of damages of breach of contract or

injury to a right. Nominal damages will be enough in such a case. Nominal

damages here mean a reasonable or moderate sum.

2. However, in certain circumstances, actual damage must be proved if a plaintiff is

to be awarded any damages at all. These cases include incidences where a

corporate entity alleges that it has been defamed43; or actions alleging an

interference by a third party with a contractual relationship between A and B; so,

if C produces B to breach B’s agreement with A, A must prove actual damage to

43The People V. The Lord’s Bar- reported in East African Law Reports. PREPARED BY Mr. OKIYA JIMMY JANSKY


maintain a claim for damages against C.44 Another common example is that of

product liability claims. A plaintiff customer must prove actual damage in order

to sustain a civil claim for damages against the manufacture: See Ssendi

Edward V. Crown Beverages Ltd. [2005] 2 ULSR 7.

WHERE ASCERTAINMENT IS DIFFICULT OR IMPOSSIBLE

1. It is an ancient rule of the common law that the difficulty of assessing damages is no

reason for the court not granting them.45 Indeed, the difficulty of assessing damages is not

a ground for giving only a nominal sum.46 Thus, even where it is impossible to assess the

appropriate measure of damages with certainty and precision, the defendant must not be

relieved of his liability to pay the plaintiff any damages at all in respect of a breach of

contract or any other actionable wrong.47 In all such cases where ascertainment of

damages is difficult, the court must attempt to ascertain damage in some way or other.48

2. It follows that the sum total of the foregoing dicta is that a trial judge must not at all

abdicate his or her duty to assess the appropriate measure of damages. Indeed, best

judicial practice dictates that even where the plaintiff fails to prove his claim, a trial judge

should still put on record his or her observations relating to the appropriate measure of

damages he would have awarded in the event that the plaintiff had otherwise succeeded

in proving his claim. This would enable the appellate courts to review his or her

assessment of damages, if necessary, and make appropriate final orders without having to

remit the case to the trial court for assessment of damages. This practice could help us

achieve expediency in the administration of justice.

44Per Kennedy L.J. in National Phonograph Co. Ltd V. Edison-Bell [1908] 1 Ch 335. 45Bovet V. Walter (1917) 62 Sol Jo 104. 46Ungar V. Sugg (1892) 9 RPC 114, CA. 47 Chaplin V. Hicks [1911] 2 KB 786.48Hall V. Ross (1813) 1 Dow 201 3 ER 672, HL.



3. The approach above suggested is not entirely unprecedented. Indeed, Infact an

examination of the judicial approach adopted by the High Court of Uganda and approved

by the Court of Appeal for East Africa in the well-known case of Felix Onama V.

The Uganda Argus Ltd.49 highlights more about this.

4. For purposes of illustration of this principle, however, we can summarize that case here.

The appellant sued the respondent for libel in respect of a report of a press conference

published in the aftermath of the publication of a report of parliamentary proceedings.

The trial judge in the High Court of Uganda held, inter alia, that the report of

parliamentary proceedings was privileged and the report of the press conference was not

defamatory of the appellant; in case he was incorrect, the trial

judge assessed the damages at Ugx. Shs. 50,000/=

having regard to a number of factors like the

appellant’s social and political standing. Spry J.A., on

appeal, approved of the approach followed by the trial judge and was unable to differ

from the trial judge’s findings. This case, for all intents and purposes, is a good precedent

on the topic of the day.

5. Claims for damages based in various species of tort will always present the court with

special difficulties in assessment of damages. The measures of damages for personal

injury cases and cases other than personal injuries are controlled by a set different of

rules and principles. Thus apart from the fundamental principles relating to the measure

of damages prove actual damage in order to sustain a civil claim for damages against the

manufacture: See Ssendi Edward V. Crown Beverages Ltd. [2005] 2

USLR 7

49 [1968] EA 511; [1969] EA 92PREPARED BY Mr. OKIYA JIMMY JANSKY


II. WHERE ASCERTAINMENT IS DIFFICULT OR IMPOSSIBLE

1. It is an ancient rule of the common law that the difficulty of assessing damages is no

reason for the court not granting them. Indeed, the difficulty of assessing damages is not

a ground for giving only a nominal sum. Thus, even where it is impossible to assess the

appropriate measure of damages with certainty and precision, the defendant must not be

relieved of his liability to pay the plaintiff any damages at all in respect of a breach of

contract or any other actionable wrong. In all such cases where ascertainment of damages

is difficult, the court must attempt to ascertain damage in some way or other.

2. It follows that, the sum total of the foregoing dicta is that a trial judge must not at all

abdicate his or her duty to assess the appropriate measure of damages. Indeed, best

judicial practice dictates that even where the plaintiff fails to prove his claim, a trial judge

should still put on record his or her observations relating to the appropriate measure of

damages he would have awarded in the event that the plaintiff had otherwise generally,

the trial judge must also be alive to those principles governing the case at bar specifically.

Because of time and other considerations, we cannot discuss these principles today.

6. The following cases render ascertainment of damages difficult or impossible for many a

trial judge: actions brought under the Law Reform Miscellaneous Provisions Act, Cap

79 ( death as a cause of action), defamation, personal injury cases involving permanent

disability, product liability, medical malpractice, professional negligence, nuisance, and

cases involving continuing damage, inter alia. But to be fair to judges, quite often the

parties involved in litigation and their lawyers are usually guilty of failure to produce

evidence or guiding parameters for the court’s consideration, with the result that the trial

judge finds himself in that unenviable position where he is left with nothing at all but his

own discretion to fall back on if he is to determine the quantum of damages. I will make

more remarks on this undesirable practice later.



7. Another puzzling problem for the trial judge is whether he or she should follow the scale

of awards set by earlier cases. To what extent is the court limited by the scale of damages

set by earlier cases? Judicial opinion is greatly divided on this point. I shall reserve my

views for the conclusion of this paper.

Interest on damages

8. The other area that presents difficulty in assessment of damages is the question whether

to include interest on an award of damages. The jurisdiction of court to award interest on

damages is controlled by S. 26 of the Civil Procedure Act, Cap 71 which reads as

follows:

SECTION 26 Interests.

1)Where an agreement for the payment of interest is

sought to be enforced, and the court is of opinion that

the rate agreed to be paid is harsh and

unconscionable and ought not to be enforced by legal

process, the court may give judgment for the

payment of interest at such rate as it may think just.

2)Where and insofar as a decree is for the payment of

money, the court may, in the decree, order interest at

such rate as the court deems reasonable to be paid

on the principal sum adjudged from the date of the



suit to the date of the decree, in addition to any

period prior to the institution of the suit, with further

interest at such rate as the court deems reasonable

on the aggregate sum so adjudged from the date of

the decree to the date of payment or to such earlier

date as the court thinks fit.

3)Where such a decree is silent with respect to the

payment of further interest on the aggregate sum

specified in subsection (2) from the date of the

decree to the date of payment or other earlier date,

the court shall be deemed to have ordered interest at

6 percent per year.”

9. In my view, the law is clear on this point. However, a great deal of litigation has evolved

on the issue of interest on damages. It is not proposed to discuss this question in detail

within this paper. Broadly speaking, however, the conflict that arises in this area revolves

around judicial interpretation of the word ‘reasonable’. Although it would appear that the

range of judicial opinion on this matter is open, the Supreme Court of Uganda has

endeavored to be consistent. See Sietco Vs. Noble Builders U Ltd.

Supreme Court Civil Appeal No. 31 of 1995; Kengrow Industries

Ltd. V. C.C. Chandran Supreme Court Civil Appeal No. 7 of

2001; Premchandra Shenoi & Anor V. Maximov Oleg Petrovich

Supreme Court Civil Appeal No. 9 of 2003; Ahmed Ibrahim

Bholm V. Car & General Ltd. Supreme Court Civil Appeal No. 12

of 2003; Administrator General V. Bwanika James & Others

Supreme Court Civil Appeal No. 7 of 2003.



10. I find it appropriate here to quote from passage of Order, JSC in Premchandra

Shenoi & Anor V. Maximov Oleg Petrovich, SCCA No. 09/2003,

above, because it is a correct statement of the principle relating to the award of interest on

damages:

“In considering what rate of interest the respondent

should have been awarded in the instant case, I agree

that the principle applied by this court in SIETCO V. NOBLE

BUILDERS (U) Ltd Supreme Court Civil Appeal No. 31 of

1995 to the effect that it is a matter of the Court’s

discretion is applicable. The basis of awards of interest is

that the defendant has taken and used the plaintiff’s

money and benefited. Consequently, the defendant ought

to compensate the plaintiff for the money. In the instant

case the learned Justices of Appeal, rightly in my opinion,

said that the appellants had received the money for a

commercial transaction. Hence the court rate of 6% was

not appropriate and I agree with them. The rate of

interest of 20% awarded by the court of Appeal was more

appropriate.”50

50 See also the passage of Tsekooko, JSC in Ahmed V. Car & General Ltd, Supreme Court Civil Appeal No. 12 of 2002: There was no complaint about interest awarded at 45% p.a. counsel for the appellant did not give reasons for claiming such high rate of interest. No explanation was given by the trial judge for such a high rate of interest. However under s. 26 (2) Civil Procedure Act, the rate of interest is awarded on a discretionary, basis unless it is agreed to by the parties.I think that in these proceedings the award of interest on the decretal amount at the rate of 45% was uncalled for and is too high. On the facts, it is patently unjust. I would award interest at 10% p.a. on $18700 (special damages) from 17/3/1999 till payment in full. I would award interest of 8% on Shs. 5m/= (general damages) from the date of judgement till



III. RESTITUTION IN INTEGRUM

1. Restitutio in integrum, or rather restitution, is a general rule applicable to

assessment of damages arising out of all wrongful acts. This rule is, perhaps, the

most important principle guiding the award of damages in civil cases. It refers to

the principle or rule that the court must in all cases award damages with the object

of compensating the plaintiff for his or her loss. In other words, as a general rule,

damages should not be used to serve any other function; neither should the

plaintiff be unjustly enriched under the guise of an award of damages nor should

the defendant be unjustly punished under the same guise. See Obongo &

Another V. Municipal Council of Kisumu [1971] EA 91;

Ongom & Another V. Attorney-General [1979] HCB 267;

Kyambadde V. Mpigi District Administration [1983] HCB

44; Nsaba Buturo V. Munansi Newspaper [1982) HCB 134,

Ntabgoba V. Editor- in-chief of the New Vision & Another

[2004] 2 EA 234.

2. Browen LJ in The Argentino appreciated the rule thus:

“The court has no power to give more; it ought

not to award less.”51

3. It follows therefore that make an appropriate assessment of damages, the first and

paramount consideration should be restitution. In practice, whether tort or

contract, the court should pause the follow the question: “how much would

restore the plaintiff to its situation just before the wrongful act?” Technically

payment in full.”51Per Bowen LJ in the Argentino (1889) 14 App Ca 519, HL.



speaking, other questions or considerations would be irrelevant and it would be a

misdirection to follow them.

Application in Contract

4. Thus, it has been held that the general intention of the law in giving damages for

breach of contract is that the plaintiff should be placed in the position as he would

have been in the contract had been performed.52 No more, no less. Gullabhai

Ushillingi V. Kampala Pharmaceuticals Ltd53 Supreme

court Civil Appeal 6 of 1999; Kengrow Industries Ltd. V.

C.C. Chandran Supreme Court Civil Appeal No. 7 of 2001;

Ahmed Ibrahim Bholm V. Car & General Ltd. Supreme

Court Civil Appeal No. 12 of 2003; Bank of Uganda V.

Masaba & Others [1999] 1 EA 2; Uganda Telecom V.

Tanzanite Corporation [2005] EA 351.

Application in tort

5. Where any injury is to be compensated by damages, in settling the sum of money

to be given for reparation the court should as nearly as possible get at the sum of

money which will put the party who has been injured or who has suffered in the

same position as he would have been in if he had not sustained the wrong for

which he is now getting his compensation or reparation.54 No more, no less See

Interfreight Forwarders (U) Ltd. V. EADB Supreme Court

52Per Wertheim V. Chicoutimi Pulp Co [1911] AC 301; See also Robinson V. Harman [1843-60] All ER Rep 383.53Per Mulenga JSC in Gullabhai Ushillingi Vs. Kampala Pharmaceuticals Ltd Supreme Court Civil Appeal NO. 6 of 1999: “I respectfully agree that this is the correct statement of the law. I would add that it is premised on the principle of restitution in intergrum. Damages are intended to restore the wronged party into the position he would have been in if there had been no breach of contract. Thus, in the case of employment for a fixed period and receive the full remuneration for it. And in the case of the contract terminable on notice, receive remuneration for that period, or for would be paid in lieu of the notice”. 54Per Lord Blackburn in Livingstone V. Rawyards Coal Co (1880) 5 App Ca 25, HL.



Civil Appeal No. 33 of 1992; Musoke V. Departed Asians

Custodian Board [1990-1994] EA 219; Mutekanga V.

Equator Growers (U) Ltd [19995-1998] 2 EA 219; Uganda

Breweries Ltd. V. Uganda Railways Corporation Supreme

Court CIVIL Appeal NO. 6 OF 2001 (unreported); Karim

Hirji V. Kakira Sugar Works Ltd. [2005] 2 ULSR 60.

6. Indeed, in practice, owing to the principle of restitution, liability for income tax

must be considered by the court in determining quantum of damages to prevent

double recovery (where the damages themselves are not taxable in the hands of

the recipient) or unfair diminution of judicial compensation (where the damages

themselves are taxable in the hands of the recipient).

IV. REMOTENESS

Damages must be proximate

1. It is trite law that damages should not be recovered where they are too remote

with regard to the wrongful act. In other words, the rule is that the damages

(material loss alleged) must be proximate, and fairly and reasonably connected

with the breach of contract or wrong.55 One who commits a wrongful act is not

liable for damage which is not the natural or ordinarily consequence of such an

act, unless it is shown that the defendant has notice of special circumstances as to

render him so liable.56 See Bank of Uganda V. Masaba & Others [199] 1 EA 2;

Uganda Telecom V. Tanzanite Corporation [2005] EA 351;

55Hadley V. Baxendale (1843-60) All ER Rep 461; See also the dicta of Martin B in Wilson V. Newport Dock Co (1866) LR 1 Exch 177 for a restatement of the principle. 56 Per Borill CJ in Sharp V. Powell (1872) LR 7 CO 253



2. Thus, in my view, the rule of remoteness practically requires that a proper

assessment of damages in any particular case before a trial court should indicate

exactly where, in the opinion of the court, the law draws the; line on the extent of

damages that can be recovered. See Sendi Edward V. Crown Beverages Ltd

[2005] 2 ULSR 7, where the appellant was precluded from claiming damages for

alleged impotence arising out of drinking a defective soda product manufactured

by the appellant.

Damages assessed once and for all

3. It is an ancient rule of the common law that damages must be assessed once and

for all; for all injuries past, present, and future. This principle is frequently slated

in the form of a legal proverb, “Nemo debet bis vexari pro eadem cause. Thus a

plaintiff who recovers damages in one suit would barred from bringing a second

action under the same cause of action for consequential damage he sustains even

though he were put to great expense, in consequence of the injury he has received;

for it shall be intended that the jury (or court) considered all possible

consequences on the trial of the first action.57

4. However, the rule is not as strict as it may sound. In certain cases, a plaintiff may

be entitled to bring a further action. The test was appropriate stated by Borill CJ

in Gibbs V. Cruickshank58 thus:

‘The test whether a previous action is a bar is not whether

the damages sought to be recovered are different but

whether the cause of action is the same.”

57Fetter V. Beale Holt (1701) KB 12. 58 Gibbs V. Cruickshank as reported in LR 8 CP.



5. In my view, the foregoing legal position enunciated at common law does not

differ from what our Civil Procedure Act, Cap 71 prescribes in Section 7 on the

doctrine of re judicata:

SECTION 7 Res judicata.

“No court shall try any suit or issue in which the

matter directly and substantially in issue has been

directly and substantially in issue in a former suit

between the same parties, or between parties under

whom they or any of them claim, litigating under

the same title, in a court competent to try the

subsequent suit or the suit in which the issue has

been subsequently raised, and has been heard and

finally decided by that court.”

Remoteness and intervening cause

6. It is a well-established rule of law that if a defendant’s breach of contract or duty

is the primary and substantial cause of the damage sustained by plaintiff, the

defendant will be responsible for the whole loss, though it may have been

contributed to or amplified by the wrongful conduct of a third person.59 In other

words, a defendant who acts negligently towards a plaintiff is at law responsible

for the resulting injury to the plaintiff, even though but for the intervening act of a

59 Per Lord Alverstone CJ in the oft-cited case of De La Bere V. Pearson Ltd [1907] 1 KB 483. See also the dicta of Hamilton LJ in Lathan V. R Johnson (1913) KB 398.



third person or of the plaintiff himself, the injury suffered by the plaintiff would

not have occurred. See, Overseas Touring Co. (Road Services) Ltd.

V. African Production Agency (1949) Ltd. [1962] EA 190,

where a transport company was held liable to pay the cost of a customer’s oil tins

even if the majority of these items were stolen by a crowd that gathered after the

transport company’s lorry was involved in a collision with another vehicle.

7. However, this rule should not be interpreted as creating a carte blanche enabling

plaintiffs to present whimsical claims for damages. The parent rule, that of

remoteness, can always be called in aid to help indicated exactly where the law

should draw the line between recoverable and unrecoverable damages with regard

to cases involving intervening circumstances.

8. For instance; in one case, through the negligence of Railway Company’s servant,

a railway engine fell over from the defendant company’s railway line into the

garden of the plaintiff. Damage was done to the flowers in the garden of the

plaintiff by a crowd that assembled there. It was held that the damage done by the

crowd (undoubtedly an intervening cause) was too remote in the circumstances of

this case.60 This judicial approach to a complex question demonstrates the

harmonization of conflicting rules of the common law that I referred to earlier on.

Application in tort

9. In keeping with the rule of remotes, it is generally accepted that tortuous liability

of a defendant must be limited to injury that was reasonably foreseeable as a

direct consequence of his wrongful act in those circumstances. Thus, a court of

law confronted with the problem of assessing damages arising out of a

defendant’s negligence would do well to adopt an objective test of ‘reasonable

60Scholes V. Northern London Railway CO. (1893) (1870) 21 LT. 835.PREPARED BY Mr. OKIYA JIMMY JANSKY


foreseeability’, qualified in certain circumstances by public policy considerations.

There are a number of reported cases that demonstrate the continuing relevancy of

this time honoured principle. The leading case in this area is, as you may recall ,

Re Polemis.61

Application in contract

10. In keeping with the rule of remoteness, it is generally accepted that the liability of

a defendant for breach of contract must be limited to losses that are the proximate,

probable and likely consequences of the breach, or such as may be taken to have

been fairly in the contemplation of the parties when the contract was entered into.

This principle is explained at great length in the oft-cited case of Hadley V.

Baxendale.62

Application in contract

11. There is great doubt among many legal minds as to whether or not the rule of

remoteness is the same for damages claimed in tort and contract. My view is that

the, rule of remoteness is the same in actions on contract as tort: that damages

which the plaintiff is entitled to must result directly from the wrongful act of the

defendant and that no claim can be made to damages which are too remotely

connected with it. The essence of this rule is to preclude entitlement to damages

which are either too speculative or uncertain.

12. Indeed, there may be differences in the application of this rule to the various

actions and one should approach judicial precedents on this point with the

necessary circumspection. As a matter of practical guidance, the trial court must

have greater regard for the circumstances of the particular case at bar than for

61[1921] 3 KB 560.62[1843-60] All ER Rep. 461



judicial evaluation of an earlier case, notwithstanding the range of benefits such

comparison may bring forth.

AGGRAVATION AND MITIGATION OF DAMAGES

1. In addition to the rules discussed above, I would like to briefly talk about the twin

principles of aggravation and mitigation of damages, incidentally, our discussion of

aggravated damages touched on aggravation.

Aggravation in contract

2. Damages in an action for breach of conduct are ordinarily confined to losses which are

capable of being appreciated in money. However in certain exceptional circumstances,

the court would be justified in looking at all what happened or was likely to happen down

to the day of trial to increase the plaintiff’s pecuniary and non-pecuniary loss. These

circumstances are called aggravating factors and they have the effect of increasing the

quantum of damages. See Ahmed Ibrahim Bholm V. Car & General Ltd.

Supreme Court Civil Appeal No. 12 of 2003, where court awarded 5/= in

addition to other damages to the appellant because it found that appellant had been

humiliated, harassed and embarrassed by this employers with the object of bringing an

end to the employment relationship.

3. For instance, the conduct of a defendant may be a relevant factor in the assessment of

damages if it accounts for more than the ordinary losses that a plaintiff would be put by

reason of a breach of a particular contract. In such cases, it is not unusual for a plaintiff to

aver aggravation in the following terms: “that defendant’s conduct occasioned injury to

feelings and dignity of the plaintiff.” Let’s take the following examples:



4. A forty- year old putative father breaches a promise to marry his 36 year old girlfriend

of ten years’ standing while she is pregnant. To commit this breach, he uses the

opportunity of a family re-union to accuse her of infidelity.

5. An institutional employer summarily dismisses a soon-to-retire employee two days

before the latter was to become eligible for pension benefits under an institutional

employee pension scheme. To commit this breach, the agents of the employer post a

notice on the company notice board that the old man has been terminated because it is

suspected he is a thief. No fair hearing for the old man.

6. In both cases, the plaintiff may recover substantial damages without proof of actual

damage. This is because the facts cases disclose an aggravating factor. The breach of

contract in both cases is underscored by aggravation.

Aggravation in tort

7. Similarly, in tort, the existence of aggravating factors will have the effect of increasing

the plaintiff’s damages. Some of the circumstances of aggravation that arise in the

reported cases include; the exercise of illegal powers by the state or agents of the state,

insult, levity, arrogance, insolence, and the defendant’s insistence in a wrongful for

instance where a publisher pleads and attempts rather unsuccessfully to prove the defense

of justification in answer to an action for libel without exploring out-of-court remedies.

See Obongo & Another V. Municipal Council of Kisumu [1971] EA

91; Ongom & Another V. Attorney-General [1979] HCB 267;

Kyambadde V. Mpigi District Administration [1983] HCB 44;

Nsaba Buturo V. Munansi Newspaper [1982] HCB 134;

Ntabgoba V. Editor-in-chief of the New Vision & Another [2004]

2 EA 234; Machira V. Mwangi [2001] 1 EA 110.



8. Where the court forms the opinion that the defendant’s conduct is in the nature of

aggravation, it may award additional damages to compensate the injury to the plaintiff’s

feelings, pain and suffering that is presumed to have been occasioned.

Some remarks on pleading and practice

9. Generally speaking aggravating factors need not be stated in the plaintiff. These matters

are admissible in evidence at the trial even though not specifically pleaded. However, if is

desirable that pleadings should indicate circumstances of aggravation to avoid surprise at

trial. See Ongom & Another V. Attorney-General [1979] HCB 267.

Mitigation in contract: Duty of plaintiff to mitigate damages

10. It is a well-established rule of common law that the plaintiff has a duty to mitigate

damages. This rule was ably articulated by Cockburn CJ in the landmark case of Frost

V. Knight63 thus:

“In assessing damages for breach of performance, a court

will of course take into account whatever the plaintiff

has done, or has had the means of doing, and as a prudent

man, ought in reason to have done, whereby his loss has

been, or would have been, diminished.”

11. Thus, the plaintiff cannot claim any part of the damage which is due to his neglect to

take such steps that would have the effect of reducing his loss. If the action he has taken

has actually diminished his loss, such diminution may be taken in account.64

63

64



12. The plaintiff carries the ultimate burden to prove, on a balance of probabilities, that he

discharged this duty. However, if the defendant contends that the loss proved by the

plaintiff could have been minimized or avoided altogether by the taking of some step

which the plaintiff could reasonably have taken but did not take, the onus is on the

defendant to make out that contention on the evidence.65

13. But in all breach of contract claims, the court must inquire into the availability of

circumstances of mitigation that the plaintiff could have called in his aid. However, it has

been held that a sum of money paid to the plaintiff by insurer in respect of loss suffered

by him is not to be taken as a mitigation factor.66

Mitigation in Tort

14. Generally speaking, a plaintiff is not bound to spend money to minimize his damages in

tort. However, where the damage that arises out of a tort committed by the defendant is

akin to a damage that would arise out of a breach of contract, the law imposes a duty on

the plaintiff to mitigate his losses. For instance, a cab driver whose motor vehicle is

unlawfully detained cannot maintain a claim for ‘loss or earnings’ without taking

reasonable steps to mitigate his loss. See UCB V. Deo Kigozi [2002] 1 EA

293.

15. Furthermore, in tort, a plaintiff carries a duty to act reasonably after a tort has been

committed against them. Thus, a plaintiff who, in remedying injury occasioned him by

the defendant, flies to London for a medical operation that could have been procured in

Kampala cannot be rewarded in damages for his unreasonable behaviour. Similarly, a

plaintiff who, refuses treatment for the effects of an assault or battery and thereby allows

himself or herself to suffer greater injury than originally done him, attracts only scorn

65

66



from the court, but not damages, for his unreasonable behaviour. See for instance,

African Highland Produce Ltd. V. Kisorio [2001] EA 1, where a

plaintiff, of relatively considerable means could have retrieved his damaged motor

vehicle from the garage in 21 days following the traffic accident but rather chose hire a

luxurious land cruiser motor vehicle at an unreasonably high rate and for an

unnecessarily long period, was precluded from recovering the damages he claimed

because he did not act prudently.

16. Lastly, mitigation in tort denotes all the circumstances which a defendant may adduce in

evidence with a view to securing a reduction of damages that will be awarded to the

plaintiff in the suit. In this regard, the following circumstances of mitigation have been

judicially considered: (a) provocation by the plaintiff as to occasion the assault; (b)

poverty of the defendant (c) offer of an apology and an out-of-court settlement by a

publisher of a libelous article (d) reasonable and probable cause in answer to a claim of

damages for false imprisonment, etc.

CONTRIBUTION AND APPORTIONMENT

1. Where the trial court makes a finding on the evidence that two or more parties are to

blame for the injury arising out of, say, a road collision, it should proceed to apportion or

distribute the blame between the parties depending on their level of contribution (or

causation) in the circumstances. Assessment of damages in this way presents

considerable difficulties for judges and it is advisable that court should invite technical

expertise, at the cost of the parties, to help determine these matters.

2. It is not possible to lay down a single principle guiding contribution and apportionment of

damages but neither should it be left to realm of mystery. In all cases where appointment

is possible, the court’s inquiry must proceed along this line: how far was the eventual

damage/loss caused by the actions of each of the parties involved? Liability is broadly

apportioned in percentages and the appellate court will not lightly interfere with



apportionment of blame made by the trial court. See Overseas Touring Co. (Road

Services) Ltd. V. African Production Agency (1949) Ltd. [1962]

EA 190, Uganda Breweries Ltd. V. Uganda Railways Corporation

Supreme Court Civil Appeal No. 6 of 2001 (unreported).

3. In practice, matters touching contribution and apportionment should be specifically

pleaded and proved because these are the kind of circumstances (i.e. usually negligence)

for which particulars are needed. See Order 6 rule 3 Civil Procedure Rules SI 71-1

(particulars to be given where necessary).

DISTINCT RULES FOR MEASURE OF DAMAGES IN CONTRACT & TORT

1. The breadth of the commons law represents what is both good and bad about such a

system of judge-made rules and principles. Therefore, I expect to be understood when I

say here that, because the common law has developed a myriad rules and principles

relating distinctively to the measure of damages in both tort and contact respectively, it is

bad. The breadth or diversity of the common law is bad in the sense that it renders it

difficult for us to discuss these distinct rules at great length in today’s forum. I am

consoled by the fact in over 30 years of my devotion to the legal profession; I am yet to

hear of a single meeting of legal minds anywhere in the Commonwealth where the entire

body of the common law was discussed exhaustively.

2. Thus, whereas I have endeavored to discuss the basic rules and principles that are

common to measure of damages in both tort and contract, it is not proposed to discuss the

distinct rules as well in this paper. But I am sure that your Lordships will ably appreciate

them in the course of your vocation.

E. Appeals



1. Assessment of damages is principally the duty of the trial court. Indeed, although

appellate courts within Commonwealth, including ours, are by statute enabled to invoke

any of the powers of a trial court, in practice, they will not engage in the activity of

assessment of damages except in the most exceptional circumstances. See Fredrick J.

K. Zaabwe V. Orient Bank & Others Supreme Court Civil Appeal

No. 4 of 2006 (unreported).

2. The role of the appellate court in the province of damages as articulated by Greer LJ in

Flint V. Lovell67 is the correct statement of the legal principle applicable in the

appellate courts of Ugandan with regard to damages in civil suits:

“An appellate court will be disinclined to reverse the

finding of a trial judge as to the amount of damages

merely because it thinks that had it tried the case in the

first instance it would have given a greater or lesser sum.

In order to justify reversing the trial judge on the question

of amount of damages, it will generally be necessary that

the appellate court should be convinced either;

a) That the trial judge acted upon some wrong

principle of law, or

b) That the amount awarded was so extremely

high or very small as to make it, in the

judgement of the appellate court, an entirely 67[1935] 1 KB 354.



erroneous estimate of the damage to which the

plaintiff is entitled.

3. The above principle has been applied by the Supreme Court of Uganda in a number of

cases. See Impressa Federici V. Irene Nabwire Supreme Court Civil

Appeal No. 3 of 2000; Uganda Breweries Ltd. V. Uganda

Railways Corporation Supreme Court Civil Appeal No. 6 of 2001

(unreported); Kengrow Industries Ltd. V. C.C. Chandran

Supreme Court Civil Appeal No. 7 of 2001; Premchandra Shenoi

& Anor V. Maximov Oleg Petrovich Supreme Court Civil Appeal

No. 9 of 2003; Ahmed Ibrahim Bholm V. Car & General Ltd.

Supreme Court Civil Appeal No. 12 of 2003; and Administrator

General V. Bwanika James & Others Supreme Court Civil Appeal

No. 7 of 2003; Bank of Uganda V. Masaba & Others [1999] 1 EA

2, inter alia.

Wrong principle68

68See also the judgment speech of Tsekooko, JSC in Ahmed Ibrahim Bholm V. Car & General Ltd. Supreme Court Civil Appeal No. 12 of 2002:“The trial judge found that the appellant “was harassed, embarrassed and humiliated by the General Manager.” Because of that holding, the learned judge awarded the appellant Shs. 30m/=. My understanding of the findings of the judge is that although he described the damages as general damages (which must be due to the way the 5th issues was framed), on the evidence and the pleadings, these are punitive or exemplary damages which the appellant had claimed in the plaint and he adduced evidence to prove such damages.…On damages it is now established that an appellate court will not reverse a judgment, or part of judgment of a court below on a question of damages unless the appellate court is satisfied that the judge acted on a wrong principle or that the amount awarded was so extremely large or so very small as to make it an entirely erroneous estimate of the damage: See Singh V. Kumbhal (1948) 15 EACA 21; Henry. H. Ilanga Vs. M. Manyoka (1961) EA



4. Per Oder, JSC in Uganda Breweries Ltd. V. Uganda Railways

Corporation Supreme Court Civil Appeal No. 6 of 2001

(unreported):

“In my view, the award of Shs. 280 the million or DM400,

000 cannot be left to stand. On the authority of Bank

of Uganda- VS- F. W. Masaba, supra, this court can

interfere with the award, because it was not properly

assessed and was made on wrong principles.

… In the circumstances, I would award (DM 213, 116. 36 as

special damages to the respondent.”

Entirely erroneous estimate

5. Per Oder, JSC in Administrator General V. Bwanika

James & Others Supreme Court Civil Appeal No. 7 of

2003:

“The Court of Appeal held the view that the provisions of

the Currency Reform Statute (repealed) did not apply to

the instant case. I agree with that view.

705 and Obongo’s case (supra) at Page 96.



It is trite law that an appellate court should not interfere

with an award of damages by a trial court unless the

award is based on an incorrect principle or is manifestly

too low or too high. In the instant case, the learned

Justices of Appeal interfered with the award of damages

by the trial Court and awarded a lower figure. Be that as it

may, my opinion is that the sum of Shs. 424,891,540/=,

representing the purchase price of Shs. 93,995,560/= of

the commercial building, which the appellant should have

paid to the respondents is still too excessive.

This state of affairs arose because the Hon. Justices of

Appeal used the Future Value Interest Factor (FVIF)

formula in assessing what should be awarded to the

respondents.

In my view, the respondents would be fairly compensated

if the award to them was assessed by subjecting the sum

of Shs. 93,995,560/= to a factor of 10% per annum at

simple interest for the period of 17 years. This is the

period from 1986, when the suit cheque was paid to the

appellant’s account to May 2003, when the Court of

Appeal varied the trial Court’s award of damages to the

respondents. This plus the principal would yield the

amount payable under this item to Shs. 226,788,012/= (of

which Shs. 142,792,452/= is accrued interest).PREPARED BY Mr. OKIYA JIMMY JANSKY


The award of general damages of Shs. 10,000,000/= to

each of the respondents, making a total of Shs.

10,000,000/= awarded by the Court of Appeal to all the

respondents was, in my opinion fair in the circumstances

of the case. It is not excessive. I would not interfere with

that item of the award.

In the result, I would make a total award of Shs.

326,788,012/= payable to the respondents. This sum

should carry interest at 6% (the court rate) from 7/7/2003,

the date of the Court Appeal judgment till payment in

full.”

6. This general rule should also guide a High Court Judge in determining appeals from the

magistrate’s courts. Once a trial court has determined the measure of damages, this

principle presents the appellant with insurmountable difficulties, and rightly so in my

view. Litigation on a very imprecise point like assessment of damages should not be

unnecessarily encouraged.

SOME RECOMMENDATIONS ON PRACTICE & PROCEDURE

Below are some practical recommendations relating to assessment of damages?

Proof of damages



1. In all civil cases, the burden of proving claims in a suit rests on the plaintiff and the

standard of proof is on the balance of probabilities. Although the law presumes

general damages to flow from the wrong complained of, it is trite law that the plaintiff

must plead and prove claims of special damages, if any. This rule applies where the

suit proceeds inter parte or ex parte. Thus, even where the defendant neither files a

defence nor enters appearance, the plaintiff bears the burden to prove his claim to the

required standard. The burden and standard of proof do not become any less:

Mutekanga V. Equator Growers (U) Ltd [1995-1998] II EA

219. See also Kyambadde V. Mpigi District Administration

[1983] HCB 44 for the proposition that although special damages must be strictly

proved, they need not be supported by documentary evidence in all cases.

2. Indeed, even where a party admits liability, the suit must be set down for a proper

inquiry into the issue of damages: Impressa Federici V. Irene Nabwire

Supreme Court Civil Appeal No. 3 of 2000 (unreported). This is

why it is fondly said within the common law jurisdictions that damages are always in

issue.

3. However, what is less trite is that prudence, if not the law, requires the parties or their

lawyers to provide the court with proper guidance relating to the inquiry of damages

generally. They seem to be content when it comes to the various reliefs prayed for.

Consider the typical dilemma of a trial judge as presented here by Ogoola J. (as the

was) in Bhadelia Habib Ltd. V. Commissioner General, URA

[1997-2001] UCL 202:

“On the plaintiff’s claims for damages, I am therefore left

only with the issues of general damages. On this one, both

counsel for the plaintiff and the defendant were



uncharacteristically unhelpful. The plaintiff’s counsel

merely alleged a claim of Shs. 20 million, not a word on

why that figure, or how it is arrived at.

The latter counsel did not challenge the substantive claim,

or the figure. In these circumstances, I am left with

nothing at all but my own discretion to fall back on.

Considering the plaintiff’s propensity for a little

exaggeration of his claims in this case, I am prepared to

award him general damages in the amount of Shs. 5

million.”

4. My recommendation is that the parties, their lawyer as well as the trial court must

give ample resources to the inquiry of damages during litigation. The impression,

among some quarters of the bar and bench (especially the lower bench) that general

damages are “damages at large” and any figure picked “from the blue” would

suffice, is at best, disturbing and, at worst, entirely erroneous in my view.

The END

(THE END OF NEGLIGENCE AND STRICT LIABILTY

MODULE)

God bless all the readers

“I REMAIN YOUR TRUE LECTURER Mr. JIMMY OKIYA

JANSKY”

CAVENDISH UNIVERSITY UGANDAPREPARED BY Mr. OKIYA JIMMY JANSKY


“DELIVERING BRITISH EDUCATION WITH A LOCAL TOUCH”

"Knowledge speaks, but wisdom listens."

REFRENCE

Heydon J.D, (1973), Economic Torts, London, Sweet & Maxwell,

Ames Phillip S., (1959): The General Principles on the Law of Torts, 1st Edition, London, Butterworths & Co.

Tony Weir, (1996): A Casebook on Torts, 6th Edition London Sweet & Maxwell 1988, 8th Edition, Sweet & Maxwel.

Page Keeton & Robert E. Keeton, Torts Cases and Materials American Casebook Series, West

PUBLISHING Co

P.S.Atiyah, (1967); Vicarious Liability in the Law of Torts, London, Butterworths.



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