Tortiuos Liability

MPM 553

TORTIOUS LIABILITY OF PROCUREMENT

COURSE OUTLINE

Nature of TortTrespass Negligence

Breach of Statutory Duty Rylands v. Fletcher Rule

Nuisance

General Defences and Remedies

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

Pitman Publishing, • 2. Bradgate R, 2000. Commercial Law, Third Edition, Antony Rowe Ltd. • 3. Brazier, M. et al, Street on Tort, 10th Edition • 4. Hodgson, J. et al, Blackstone’s Law of Torts • 5. Rogers, W. V. H., Winfield and Jolowicz on Tort, 14th Edition • 6. Lewis, J. R., 1976. Law for the Construction Industry, The Macmillan

Press Limited

• 7. Uff, J. 1999. Construction Law, 7th Edition, Sweet & Maxwell Limited • 8. Bondzi-Simpson, P. E. 2002. Law of Contract, Excellent Publishing and Printing • 9. Furmson, M. P. 2001. Cheshire & Fifoot’s Law of Contract; 14th Edition; • 10. Bradgate R, 2000. Commercial Law, Third Edition, Antony Rowe Ltd. • 11. Willis, C. J. et al. Practice and Procedure for the Quantity Surveyor- 10 th

Edition, Oxford Blackwell Scientific Publications • 12. Brobbey, S. A. 2008. The law of Chieftancy in Ghana, Advanced Legal

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

and Practice in a Global Context

Definition of Tort

• The word ‘tort’ is derived from the Latin “tortus” meaning crooked or twisted.

• French= “tort” meaning wrong.

• English law, tort denotes certain civil wrongs • Tort may be defined as a civil wrong independent

of contract, or as a liability arising from breach of a legal duty owed to persons generally.

AIMS OF LAW OF TORT

• to protect interests in the person, land, goods and reputation of another

• to award damages for invasion of these interests.

• It may not cover interests in economic, family relations etc.

Remedy for tort

• The main remedy is compensatory damages to compensate the victim of the wrong.

• The courts, however, have power to award punitive or exemplary damages in special circumstances.

Tort and other Legal Actions

Batty v Metropolitan Property Realisation [1978] 2 WLR 500

• A purchaser of a defective house brought an action against a developer for breach of a warranty that the house was fit for habitation and for negligence in having the house constructed on unsuitable ground.

• held ; an action by the client against his Architect or engineer will generally be brought in contract

Importance of law of Tort in C. I.

• the operations within the industry involve great risk of dangerous situations.

• The major areas of tort that affect procurement

Trespass

Negligence,

Doctrine of Rylands v Fletcher,

Breach of Statutory Duty and

Nuisance,

Trespass

• defined as an act affecting one’s personal liberty or property without any invitation of any sort or if aware, is objected to.

• It may be to -Person -land including building -goods including construction materials and equipment

• Trespass is actionable per se (without proof of any damage).

Areas of Trespass

• The usual topics treated under Trespass are:

-battery,

-assault

-false imprisonment

-Intentionally causing Physical Harm

-malicious prosecution

Trespass to Land

• A trespasser to land has been defined as

one who goes on to the land of another without any invitation of any sort and whose presence is either unknown to the proprietor, or, if known, is objected to practically.

• Trespass to land is however committed in three forms:

Whenever a person intentionally or negligently;

• Enters upon the land of another

• remains on the land of another;

• causes to be placed or thrown any material object upon the land of another,

Trespass to Goods

• is the intentional or negligent interference with the possession of another person’s goods.

• The interference must be direct and forcible (though a mere touching may be trespass).

NEGLIGENCE

•Means- heedless or careless conduct, whether in omission or commission.

• Connotes - the complex concept of duty, breach and damage suffered.

• There must be the existence of DUTY, BREACH and CAUSATION.

CONCEPT OF DUTY OF CARE

• The plaintiff must establish that the defendant owe a duty at least to someone to act

• Or refrain from acting.

• The defendant had conducted himself a manner that that duty is owed to the plaintiff himself personally.

• In some circumstances such economic loss the law may deny duty

FORESEABILITY AND OMISSIONS

It is said that one must take care not to cause injury to others

there is no general duty to act for the benefit of others

the rule is that you must not harm your neighbour, not that you are required to save him.

PROFESSIONAL NEGLIGENCE

Consultants and professionals are expected by law to display reasonable competence in the delivery of services.

The duty of care required is based on the contractual agreement between the two.

The duty of care may arise concurrently in tort and contract. The Professionals Act

PROFESSIONAL NEGLIGENCE CONT’D

The law experts the professional to display an average amount of competence

An unqualified person who has experience and holds himself out as a qualified person would not be excuse of his negligence.

A higher standard is required from an experienced consultant than a young surveyor.

DOCTRINE OF RES IPSA LOQUITUR

• The plaintiff should prove the negligence of the defendant by specific acts or omissions

• The could be hardship in plaintiff proving the defendant is guilty.

• This hardship is avoided by the development of the doctrine Rea Ipsa Loquitur

Three conditions must be fulfilled before the principle or maxim is upheld

the thing causing the accident must be under the control or management of the defendant

the accident must be such as ordinarily cannot occur without negligence.

there must be absence of explanation of the cause of the accident by the defendant.

OTHER ASPECTS OF NEGLIGENCE

Particular situations of negligence affecting the construction industry include

•Occupiers Liability

•Employers Liability

•Liability for goods

•Negligent Misstatement

OCCUPIERS’ LIABILITY

• An occupier may be defined as anyone who owes sufficient degree of physical control and possession over property.

• A licensee may be a person who is on the occupier’s premises either by an express or implied consent of the occupier.

OCCUPIERS’ LIABILITY CONT’D

Duty of Common Humanity• common law the occupier owes the trespasser no

duty of care.

• The exist the duty of common humanity

• This duty arises when the occupier is aware or is believe to be aware that danger exist.

• The occupier can offer some reasonable protection to the trespasser


Childrensome special points which should be noted:

that children are less careful than adults.

What may be a warning to an adult may not be so to a child

With child trespassers on his land the occupier must prevent the recurrence of the trespass


Independent Contractors

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

• the occupier shall not be answerable for the danger

EMPLOYERS' LIABILITY

Employer's common law duties

Provision of competent staff

provision of safe place to work

proper plant and equipment

a safe system of work

COMPETENT STAFF The employer has an obligation to select competent

fellow employees

a correlative duty to give them proper instruction in the use of equipment.

SAFE PLACE OF WORKAn employer must take such steps as are

reasonable to see that the premises are safe

ADEQUATE PLANT AND EQUIPMENT has a 'duty of taking reasonable care to

provide proper appliances

and to maintain them in a proper condition

SAFE SYSTEM OF WORKING

VICARIOUS LIABILITY This is liability which arises because of one

person’s relationship to another principal is generally liable for the acts of his

servant where he performs negligently in the course of his employment

LIABILTY FOR PRODUCTS • liability for products was in respect of a

contract between a seller and buyer.

o

NEGLIGENT MISSTATEMENT a statement of a professional which is being

relied on by the plaintiff causes an injury to him

as a result of negligence of the professional during the course of his work.

Clay v A. J. Crump Ltd [1964] 1 QB 533

Brett M.R. (Heaven v Pender (1883), 11 QBD 503)

BREACH OF STATUTORY DUTY

INTRODUCTION

Statutory duty has been accepted as a completely new head of tort distinct from negligence

It provides that if a certain thing must be done and the default results in injury to another person, the victim can sue the other person for damages.

It is a separate tort because the are cases where the defendant has been acquitted of negligence but held liable on the same facts for breach of statutory duty

BREACH OF STATUTORY DUTY CONT’D

Duty must be owed to the Plaintiff If the statute was not aimed at protecting the

Plaintiff his claim will fail

The Defendant must in fact be Guilty of his Statutory duty


INDUSTRIAL SAFETY LEGISLATION

• industrial safety legislation is one area where the courts have consistently allowed such common law actions

• Some Regulations made are:

• Insurance Act, 2006 Act 724 • Factories, Offices and Shops Act, 1970, Act 328• Workman’s Compensation Law• PNDC Law 187, 1987• Labour Act, 2003, Act 651• Environmental Protection Act


The Insurance Act

It requires an owner of a commercial building under construction to insure the liability(ies) in respect of constructional risk arising out of negligence of servant which may result in:

1 (a) bodily injury to any workman on the site or any member of the public


(b) loss of life to any workman on the site or any member of the public

(c) damage of property of any workman on the site or any member of the public

2.(a) the owner of a commercial building is to insure the building against collapse, fire, earthquake etc

(b) The policy covers the legal obligations of the owner or occupier against

loss or damage to property, bodily injury or death suffered by any user and third parties


The Labour ActIt provides that in any contract of employment the

duties of the employer include to;

• Provide work and appropriate raw materials, machinery

• Take all practicable steps to ensure that the worker is free from risk of personal injury or damage


The duty of the worker also include to:

Work conscientiously in the lawfully chosen occupation

Exercise due care in the execution of assigned work

Obey lawful instructions regarding the organization and execution of his or her work

Take all reasonable care for the safety and health of fellow workers


The right of worker as provided in the Act as;

• To work under satisfactory, safe and healthy conditions

• To be trained and retained for the development of the workers skills

• To receive information relevant to his or her work


• Environmental Protection Act

• Disability Act

• Building Regulation

GENERAL DEFENCES IN TORT

“VOLENTI NON FIT INJURIA”

• Means that a person who has voluntarily consented to the commission of a tort may not sue on it.

Examples occur in sports

GENERAL DEFENCES IN TORT CONT’D

MISTAKE Mistake, either of law or of fact, is no defence

in tort. Ignorance of the law is not excuse For mistake of fact, there are exceptions to the

rule that it is no defence e.g false imprisonment


NECESSARIES Damage done intentionally may be excused if

done from necessity

Available only when the defendant was compelled by the circumstances to prevent a greater evil

Leigh v Gladstone (1909) – prisoner was on hunger strike and was fed by the wadens


INEVITABLE ACCIDENT

• It means some happening which cannot be avoided by the taking of ordinary precautions

• Stanley v Powell (1891)- member of shooting party fired a gun , hit a tree and found its way into the eyes of another worker.


STATUTORY AUTHORITYIt is a defence to an action in tort to show that

a statute authorized the alleged wrong

The authority given by statute may be Absolute ConditionalMetropolitan District Asylum Board v Hill

(1881) siting of smallpox hospital in a residential area


SELF DEFENCEOne may use reasonable force to defend

himself against unlawful forceDefendant may not be liable provided that the

amount of force used is reasonable and appropriate to the harm threatened

A person may use reasonable force in the defect of hid goods


CONTRIBUTORY NEGLIGENCEo It is a defence both to an action in negligence

and breach of statutory duty.o The carelessness of employees are as

claimants is treated leniently than the negligence of employers. Staveley Iron’s case

Civil Liability Act 1963 (Act 176)- liability of an employee is to be reduced by the proportion of negligence

DOCTRINE OF RYLANDS v FLETCHERRequirements Blackburn J decided that to succeed in this tort the

claimant must show:

That the defendant brought something onto his land

That the defendant made a non-natural use of his land

The thing was something likely to do mischief if it escaped

The thing did escape and cause damage

DOCTRINE OF RYLANDS v FLETCHER

Foreseeability

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

REMEDIESThe owner of land close to the escape can recover

damages for:• Physical harm to the land itself and to other property.

E.g Halsey v Esso Petrol- claim of compensation for damages to paintwork by acid spray

• It is no longer clear if a claimant can recover for personal injury as in Hale v Jennings

Non-occupiersIt is not clear if a person who is not an occupier of land

close to the escape can obtain damages for personal injuries under this tort.

DEFENCES

A number of defences have been developed to the rule in Rylands v Fletcher

ConsentCommon BenefitAct of a StrangerStatutory AuthorityAct of GodDefault of the claimant

NUISANCE

• DEFINITION A thing, person or act that causes trouble or

annoyance. • Types of Nuisance in law Private Nuisance – injury or interference with

use and enjoyment of land or an interest in land

Public Nuisance- common nuisance affects class of people or community

Damages caused by nuisance

• Physical injury to land

• Substantial interference with enjoyment

Remedies

• Injunction

• damagesGhanaian law position

THANKS FOR YOUR

ATTENTIONHave A Nice Day

Tortiuos Liability

Documents

Transcript of Tortiuos Liability