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CAVENDISH UNIVERSITY UGANDA

BACHELOR OF LAWS (LLB)


MODULE STUDY PACK LLB 125; NEGLIGENCE AND STRICT LIABILITY PREPARED BY Mr. OKIYA JIMMY JANSKY EMAIL, Okiyajimmy@gmail.com, Jimmy.jansky@yahho.com PHONE, +256781410203 +256759748994

PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAi

"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 Description LLB 125: Negligence, Strict Liability 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 Week Delivery Method Lecture 1 Talk about what is expected of the students throughout the semester Talk about students expectations Module description to students and learning outcomes Tutorial Discussion of the first lecture Introduction to the Law of Negligence 2 Duty of Care Heydon J.D, Economic Torts, London, Sweet & Maxwell,
PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAii

technological developments and the law of negligence. Activities Resources Welcome students to the course .

Comments

Breach of Duty Proof of Negligence

1973

Ames Tutorial Question & Answer Session 1st

Phillip Edition, &

S.,

General London,

Principles on the Law of Torts, Butterworths Co, 1959

Test of proving Negligence of damages Assessment Coursework

Heydon J.D, Economic Torts, 1973 Ames Phillip S., General

Causation & Remoteness London, Sweet & Maxwell,

Principles on the Law of Torts, 1st Edition, London, 4 Lecture Tutorial Remedies to Negligent Actions Contributory Negligence Defences in Negligence Butterworths & Co, 1959 Heydon J.D, Economic Torts, London, Sweet & Maxwell, 1973 Ames 1st Phillip Edition, S., General London,

Question and answer session

Principles on the Law of Torts, Butterworths & Co, 1959. Heydon J.D, Economic Torts, London, Sweet & Maxwell, 1973

Ames 1st

Phillip Edition,

S.,

General London,

Principles on the Law of Torts,

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Butterworths & Co, 1959

Lecture

Strict Liability Nuisance Heydon J.D, Economic Torts, London, Sweet & Maxwell, 1973 Ames Phillip S., General

Principles on the Law of Torts, 1st Edition, London, Tutorial 6 Lecture Tutorial 7 Lecture Question & Answer Session Occupier`s Liability Rule in Ryland Vs Fletcher Feedback on the coursework Defences in Occupier`s Liability Remedies in Occupiers liability Heydon J.D, Economic Torts, London, Sweet & Maxwell, 1973 Ames Phillip S., General Butterworths & Co, 1959

Principles on the Law of Torts, 1st Edition, London, Butterworths & Co, 1959 Heydon J.D, Economic Torts, London, Sweet & Maxwell, 1973
PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDAiv

Ames

Phillip

S.,

General

Principles on the Law of Torts, 1st Edition, London, Butterworths & Co, 1959 Tutorial Question & Answer session

Lecture

Vicarious Liability Introduction Liability to Vicarious

Heydon J.D, Economic Torts, London, Sweet & Maxwell, 1973 Ames 1st Phillip Edition, S., General London,

Principles on the Law of Torts, Butterworths & Co, 1959 Assessment 9 Lecture Coursework When can a master be liable for a Heydon J.D, Economic Torts, servant`s actions Defences Ames 1st Tutorial Question and answer session Phillip Edition, S., General London, London, Sweet & Maxwell, 1973

Principles on the Law of Torts, Butterworths & Co, 1959

Lecture 10

Defamation Introduction to Defamation

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


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Tutorial

Feedback on coursework

Ames 1st

Phillip Edition,

S.,

General London,

Principles on the Law of Torts, Butterworths & Co, 1959 Lecture 11 Proof of Defamation Heydon J.D, Economic Torts, Defences in Defamation London, Sweet & Maxwell, 1973 Ames 1st 12 Lecture Damages Types of Damages Phillip Edition, S., General London,

Tutorial

Remedies to defamation Question and answer session

Principles on the Law of Torts, Butterworths & Co, 1959 Heydon J.D, Economic Torts, London, Sweet & Maxwell, 1973 Ames 1st Tutorial 13 Assessment of Damages Remoteness of Damages Phillip Edition, S., General London,

Principles on the Law of Torts, Butterworths & Co, 1959 Heydon J.D, Economic Torts, London, Sweet & Maxwell, 1973 Ames 1st Phillip Edition, S., General London,

Principles on the Law of Torts, Butterworths & Co, 1959


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Tutorial

Question & Answer Session

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: Core Texts Tony Weir, (1996); A Casebook on Torts, 6 th Edition London Sweet & Maxwell 1988, 8 th 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, 1 st 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.

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Prepared by: OKIYA JIMMY JANSKY. Lecturer/Researcher Cavendish University Uganda, Opp. United States of America Embassy Nsambya, Ggaba Road, Kampala, Uganda. Email; okiyajimmy@gmail.com jimmy.jansky@yahoo.com Phone Contacts; 0781410203, 0701512503

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TABLE OF CONTENTS
TABLE OF CONTENTS.................................................................................................. 1 UNIT ONE: NEGLIGENCE...........................................................1 INTRODUCTION........................................................................................................ 1 THE ELEMENTS OF NEGLIGENCE...............1 2. Breach of Duty in negligence.........................................................................17 DAMAGE OR INJURY............................................................................................ 21 Proof of Negligence......................................26 Defences............................................................................................................... 35 Negligence - Particular Duty Areas........................................................................41 Dangerous Premises & Occupiers Liability...............................45 Negligent Misstatement........................................................................................ 62 .................................................................................. 77 UNIT TWO: STRICT LIABILITY....................................77 INTRODUCTION...................................................................................................... 77 SIGNIFICANCE of the rule in rylands v fletcher 1868..........................85 REMEDIES.............................................................................................................. 93 THE VARIOUS DEFENCES TO THE RULE IN RYLAND V FLETCHER 1868 .................93 UNIT THREE: VICARIOUS LIABILITY IN TORT..........................94 INTRODUCTION...................................................................................................... 94 GENERAL RULE...................................................................................................... 97 WILLFUL TORTS OF SERVANT:.............................................................................101 INTRODUCTION.................................................................................................... 106 Private Nuisance.............................................................................................. 106
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Public Nuisance................................................................................................... 111 ................................................................................. 116 ................................................................................ 116 UNIT FIVE: DEFAMATION.....................................116 INTRODUCTION.................................................................................................... 116 Remedies to the Defamed Party..........................................................................119 UNIT SIX: LIABILITY FOR FIRE & DANGEROUS PREMISES....................120 INTRODUCTION.................................................................................................... 121 DANGEROUS PREMISES....................................................................................... 127 LICENCEE............................................................................................................. 127 INTRODUCTION .........................................................133 DEFINITION AND CLASSIFICATION OF DAMAGES.......133 CLASSIFICATION OF DAMAGES............................................................................ 135 RULES AND PRINCIPLES IN AWARDING DAMAGES............................................147 WHERE ASCERTAINMENT IS DIFFICULT OR IMPOSSIBLE....................................153 AGGRAVATION AND MITIGATION OF DAMAGES..............167 CONTRIBUTION AND APPORTIONMENT...................172 DISTINCT RULES FOR MEASURE OF DAMAGES IN CONTRACT & TORT.................................................................................................................... 173 SOME RECOMMENDATIONS ON PRACTICE & PROCEDURE......179

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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 werent 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 NEGLIGENCE


Introduction 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.
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A breach of that duty - the Ds act or omission failed to reach care. Causation - the Ds breach caused the Ps 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

the

standard

of

carefulness

required

by

the

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

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 ones 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:
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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 isnt 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
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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 plaintiffs 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 isnt 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.

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Proximity at its Height! Jaensch v Coffey (1984) 155 CLR 549 Deane J cited Lord Atkins 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 plaintiffs husband had been injured due to the defendants 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 husbands 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 Coffeys 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 defendants 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
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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 respondents 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.

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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 hadnt 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 builders 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 builders 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. Currys 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 beneficiarys 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:
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(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
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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 defendants control over the nature and location of the experiment B. Plaintiffs 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.

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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 Plaintiffs 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 plaintiffs 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.
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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 couldnt 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 Youngs estate for nervous shock resulting from the
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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, 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 plaintiffs mother was involved in a car accident whilst pregnant. The child was born with brain damage as a result of the defendants 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
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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

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 Cherrys 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 Boys Home were taken on an excursion to an island. Due to the wardens 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
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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
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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 plaintiffs 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
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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 Hearses 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.
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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 OBrian [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 hospitals 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
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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 defendants hayrig caught on fire, and this spread to the neighbours property. This occurred despite the neighbours warning of the hazard. However, the defendant had disregarded it as he believed it wasnt 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 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.
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Mason J noted that foreseeability of risk and likelihood are two different concepts, and foreseeability doesnt 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 Defendants position would have foreseen a risk to the plaintiff or a class of persons in the Plaintiffs position, if so, the tribunal of fact would ask what a reasonable person in the Defendants position would do in response. The HC found that the jurys 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.

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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 Plaintiffs 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 personwas so small that a reasonable manfrom 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 Defendants 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.
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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 employers) negligence in failing to provide safety goggles. It was held that in consideringthe precautions which an employer ought to take for the protection of his workmen, it mustbe right to take into accountthe 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 riskyou must balance the risk against the end to be achievedthe waving of life or limb justifies taking a considerable risk. Daborn v Bath Tramways [1946] 2 All ER 333, the defendant was driving a lefthand 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.
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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 plaintiffs 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 Defendants 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.
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Mercer v Communication for Road Transport (1936) 56 CLR 580, the Plaintiff was injured when the Defendants 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 hadnt been negligent by the standard of medical knowledge in 1940. The Court noted that the plaintiffs situation was terrible; it wasnt 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
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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 cant 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. Plaintiffs Knowledge of Defendants 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 Ds conduct should be judged against the same objective test as other drivers in relation to users of the highway who were unaware of the defendants 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 Ds inexperience. However, it was found that the defendants negligence was so gross, that the plaintiff was successful.

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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) Patients 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 Ps 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.

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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 Plaintiffs 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 Plaintiffs 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) (c) The Ps H was driving on the wrong side of the road Both were driving down the middle of the road. (b) The other truck was driving on the wrong side 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 Defendants shed to buy timber, and saw the Defendants 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
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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 occurrenceconstitutes 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 wasnt how the wood flew across the area, but how it flew from the circular saw. However, the Court couldnt find for the P as there was no evidence of the circular saw and many others, and further the P couldnt 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 thingis 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 Ps head, and injured him. The Defendant called no evidence and the Court found that if Plaintiff could illustrate that the circumstances were under Defendants control, and that the accident would not have accrued except for the Defendants negligence, then the Court is able to find negligence. However, they dont 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 isnt a legal principle that is to be strictly adhered to. 3. Causation or damage or injury

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Causation in fact requires that once the plaintiff has demonstrated that the defendant was negligent, they must further demonstrate that the negligence caused the Plaintiffs 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 defendants negligence. Barnett v Chelsea & Kensington Hospital Management Committee (1969) 1 QB 428, the Ps 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 husbands death. The Court held that the doctor was negligent in not coming into the hospital, but, the doctors negligence hadnt caused the Plaintiffs husbands 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 werent good. The Plaintiff had failed to establish that her husbands death resulted from Defendants negligence, on the Burden of Proof. If the Plaintiff would have been injured even if the Defendant hadnt been negligent, then Defendants 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 judges 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.
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(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 workers 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 Defendants 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 plaintiffs 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 doesnt 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 MGhee 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
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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

MGhee was severely criticised in Wilsher v Essex as the law requires proof of fault. Demonstrating an increased risk doesnt satisfy the evidentiary burden to show that the Defendants actions cause the Plaintiffs injury. They suggested in MGhee had succeeded as both risk factors were provided by the Defendant. In the current fact situation, there was an innocent contributing factor, and the defendants contributing factor, and the P failed, as they could only demonstrate increased risk, not that the Defendant had caused the injury. MGhee 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 wouldnt 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 MGhee style of reasoning. She suggested that in the absence of evidence that the Defendants 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.
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Multiple Sufficient Causes Alternative Causes What is the situation where the Ps 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 Defendants 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 Ps loss. Performance Cars Ltd v Abraham (1962) 1 QB 33, the defendant drove into the Plaintiffs Rolls Royce. A fortnight ago, another car had hit the Plaintiffs 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 didnt want to take on his share of the costs shouldnt 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 shouldnt be liable for any loss, as there was no longer a leg. The appellant argued that the injury hadnt shortened his life, and so there was still damage. The
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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 cant 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 couldnt rely on the second accident to reduce liability for the loss swallowed up in the second accident. It was held that damages dont 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 tortfeasors 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 Hearses act in running over Doctor Cherry was a novus actus which broke the chain of causation between Chapmans actions and Doctor Cherrys death. It was held that as Chapmans negligence had contributed to the death, and this was the sort of situation which was foreseeable, Hearses actions werent 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 Mahoneys negligent treatment had caused, or contributed to the employees 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 doesnt necessarily break the causal
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connection. However, where professional and reliable treatment is ordinarily available, and the Plaintiffs 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 Plaintiffs negligence didnt break the causal connection, as where the Defendants wrongful conduct is the very reason for the Plaintiffs or the third partys 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 Defenedants 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 plaintiffs 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 riskwould occur to the mind of the reasonable manwhich 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 defendants negligence in
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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 defendants 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 werent 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.

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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 defendants 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.

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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 opportunity to avoid the accident, they should be liable. If the defendants 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 partys 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 damagepartly of his own fault, and partly the fault of any other persona claimshall not be defeated, but the damages recoverableshall 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 Ps damages would be reduced by 50% due to contributory negligence. On appeal to the HC, it was
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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 doesnt. 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 ones own safety made all the difference, he would apportion a 25% reduction, where there is a significant contribution, hed 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 Plaintiffs 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.
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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 wasnt due to the fact that the headlight wasnt 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 Plaintiffs 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 plaintiffs 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
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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 didnt 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 2 3 The plaintiff knew of the facts constituting danger (knew the risk) Fully appreciated the danger inherent in those facts 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 defendants 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 plaintiffs knowledge must have been express, and that actual, rather than constructive knowledge was required. Imperial Chemical Industries v Shatwell [1965] AC 656, against an employer. the HofL held

that the general rule is that voluntary assumption of risk will NOT defeat a claim of an employee

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Insurance Commissioner v Joyce (1948) 77 CLR 39; 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.

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

Roggenkamp v Bennet (1950) 80 CLR 292, the plaintiff was FULLY aware of the defendants drunkenness and plaintiff accepted the risk. Whether this is so is a question of fact, and can be inferred from the plaintiffs behaviour. As a result of the above, it was held that the defendant had a defence of violenti and plaintiff couldnt 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 plaintiffs 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 defendants 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.
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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 hadnt 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 werent 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 careif 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 doesnt 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 productsowes a duty to the consumer to take reasonable care.
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Junior Books v Veitchi held that manufacturer is to be broadly understood. Haseldine v Daw holds repairers liable. ODwyer 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.

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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 isnt 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 doesnt 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
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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 didnt 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 personsthe skin irritation which she sufferedwas 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 defendants negligence. The D argued that the P couldnt 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
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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 wasnt 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 couldnt terminate the pregnancy as she didnt know, caused by the defendants negligence. The childs 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 mothers claim would be allowed, but the childs claim would be struck out. The Court of Appeal agreed, holding that the child did not have a cause of action. The childs claim was one of wrongful life, and the mothers 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 & Occupiers 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 doesnt have to be exclusive to make the defendant liable. Thus, a licensee or indeed, anyone with a right to invite people over someone elses land could be an appropriate defendant in a suit. (Wheat v Lacon [1966] AC 552, Kevan v Commissioner for Railways [1972] 2 NSWLR 710)

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Premises include land and fixtures; however, this has been widely read. London Graving Dock v Horton [1951] AC 737, 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. held that this includes moveable structures, e.g.

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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 Ds occupation of premises, and the manner of the Ps 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 occupiers 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.

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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 hadnt 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 Ds 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 hadnt 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
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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 hadnt relied on the Councils inspections. They could have, but they didnt. 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 doesnt. 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 thinkthat 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
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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 plaintiffs sued the council, as the inspector had come, and knew of the danger, and it didnt do anything. The HC held that the owner couldnt succeed as they hadnt 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 deceaseds wife sued the statutory body
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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 Defendants 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 didnt 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
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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 isnt 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
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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 problemswhich source of contamination caused the Ps illness? 9. Cost of identifying and eliminating all sources of contamination is too onerous. It was foreseeable that injury would occur if the Council didnt 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 Js 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.

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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, 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.
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the plaintiff

tripped and fell due to a depression in the footpath. The question was whether the defendant

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. 5. Policy questions: the purposes served by the immunity now are not those served in England The argument that without immunity, authorities will be subject to new indeterminate in Ages past. 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 decisisshould 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 doesnt 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).

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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, D. The Ps 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 builders negligence in laying faulty footings. The majority (Mason CJ, Deane, and Dawson JJ) held that: Ps 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.
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the HC held

that the Duty of Care of a statutorily authority is dependent on the reasonable reliance of the P on

(b) (Policy) The question of indeterminacy is irrelevant as only the P is affected by Ds 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 diligencenot an extraordinary degree of skillbutthe 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 plaintiffs 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 damagesit istoday 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
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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 plaintiffs 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
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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 didnt affect a rescue, he talked to people and kept the calm whilst they waited to be cut free. He wasnt 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 hadnt 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
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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 ps 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 pointwhere 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 werent 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
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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 deceaseds children were not in the sight or hearing of the accident or its aftermath. He held that the law should recognise that it isthe 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 81367, 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,
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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 causedby an act neglect or default by which aperson is killed injured or put in peril shall extend tonervous 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 Ps 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. 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 Dennings 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

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(3) A person takes it upon himself to give information or adviceor allows his information or advice to be passed on to another person (4) Whohe 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 MLCs and asked MLCs 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 Ps 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 CJs 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 wouldaccord 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 wasnt 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.
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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 doesnt 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
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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
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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 Ps 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
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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 neighbours 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 neighboursthe 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
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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 peoples 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 owners 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 Ds truck on fire on the other side of the road. The tarpaulin hadnt 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 wasnt owed a Duty of Care, as it wasnt 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
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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 Ps 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 Ds 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 masters negligence. The oil could no longer be passed through the bay, and Caltex had to pay for trucks to go around the
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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 owedall 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 PCs 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 Ds 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 Caltexs 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,
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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 relianceor 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 Ds supplied seed. The D negligently supplied seed infected with bacterial wilt. Whilst the Ps 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 Ps 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 Ps vulnerability, propinquity, control exercised by defendant are all important factors. 4. Defendant had knowledge of an ascertainable class of vulnerable persons.
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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 plaintiffs 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. Doesnt 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 defendants 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
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(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 wasnt 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, profits not consequential upon damage to the plaintiffs 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
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the P failed to recover lost

B. Damages for loss of earnings or earning capacity where death is caused by Ds act, damages calculated without reference to loss or gain to estate consequence upon death Where death is caused by defendants 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 benefitfrom continuance of the life. S 3(1) states that whenthe death of a person is caused by a wrongful actand the act is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damagesthenthe person who would have been liableshall 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 Campbells 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 widows 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.
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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 plaintiffs 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 plaintiffs 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
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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 plaintiffs 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 defendants responsibility for the damage. D Under the legn 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 employees 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.

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c) Examine the possible defences one may point to avoid liability for the wrong of Negligence. QUESTION TWO What is the theoretical difference between causation and remoteness? QUESTION THREE Can you think of any situations in which the but for test might be an inadequate device for settling disputes concerning causative links? PRACTICAL QUESTION FOUR David 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 Pennys 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. Pennys house is destroyed in the conflagration. Advise David, on his liability in tort, if any.

UNIT TWO: STRICT LIABILITY


INTRODUCTION
In most of the torts we have dealt with so far, we have seen that either intention or negligence has been essential condition of the defendants 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

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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, Rylands 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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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:

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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 Plaintiffs 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 seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others
BY Mr. OKIYA JIMMY so long as it is confined to his PREPARED own property, but JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA82

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 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 "nonnatural". 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, for the purpose of introducing into the close that
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LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA84

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".
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
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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 subtort 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 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
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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.

2. Mischief and escape

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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 "things 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 exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be."
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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; 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.
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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 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
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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.

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.
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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 Fletchers mineshaft into Rylands thereby causing damage.

Rylands sued on the grounds of Fletchers 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.

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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.

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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 landas 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 FIVE Examine relevance of the defences laid down in Rylands v Fletcher in the law of Tort today. QUESTION SIX Discuss the rules governing liability for animals on the highways with relevant case laws.

UNIT THREE: VICARIOUS LIABILITY IN TORT


INTRODUCTION
Usually 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:
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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 Defendants 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:
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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 masters power of selection of his servants; b) Payment of wages; c) The masters right to control the method of doing work; and d) The masters 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.
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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 servants 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 servants employment is a question of fact. The following principles may, however, be laid down to determine this question.
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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. 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 masters. 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
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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 servants 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 Plaintiffs 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. 2. HELD: 1. The principle governing liability of a master for the negligence of his servant is that where the driver was the owners 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
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Was the driver acting in the course of the employment? Was the Plaintiff an authorized passenger?

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 Defendants 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:
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The Plaintiff brought an action against the Attorney General for personal injuries he sustained when he was knocked down by the Defendants car. The Defendants 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 servants own benefit. Thus where 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 its a mere impropriety in the mode of performing the servants 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.
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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. 2. The gang boss had disobeyed instructions and ordered the Plaintiff to work in the stop before the necessary supports had been fitted. 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 Defendants 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
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The Appellants 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 masters liability for the tort of his servants, committed in the course of his employment. Thus, where the Defendants manager went to the Plaintiffs 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.

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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 contractors 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 contractors 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:
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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 Defendants soil. The Defendant employed a contractor to pull down and rebuild his house. The Plaintiffs 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?
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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 persons 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 persons 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 wasnt 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 Ps use and enjoyment of land (B) By material damage to property.
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It was held that the factor of locality was irrelevant where there is material damage to property (i.e. whos 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 Ps 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, didnt 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 Taylors 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 Ds actions did not affect the use and enjoyment of the property, as it was a racecourse, and the Ds 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 Ps premises, preventing other employees
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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 defendants preventing others from entering the Ps premises. It was held to interfere with the Ps 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 plaintiffs 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 Ds 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 Womens College [1953] 90 CLR 170, the defendants were the Womens 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.
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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 Ds 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 Ds 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 Ds sons actions. The Court held that as the D had acted maliciously, the P would recover, even though the Ps 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 Plaintiffs house started sinking. Where an owner adopts or continues a nuisance, they are liable. Sedliegh-Denfield v OCallaghan (1940) AC 880 The local council installed a drainage pipe on the Ds land. In installing it, they had trespassed. The D didnt 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
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the Ds werent liable as the D didnt 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 wasnt the actions of what the reasonable person would have done that is taken into account, but the Ds 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 didnt 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 didnt 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
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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 dont 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 peopleI prefer to look at the reason of the thing a public nuisance isso widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedingsbut it should be taken on the responsibility of the community at large. Workers Compensation The Workers 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 Workers compensation in NSW are: the Workers Compensation Act 1987, Workplace Injury Management and Workers Compensation Act
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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.
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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 cant 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
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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 workers 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 yearsexcept with leave of the Court. (Section 151D)
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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
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QUESTION THREE Compare and contrast public Nuisance and Private Nuisance in the Society?

UNIT FIVE: DEFAMATION


INTRODUCTION
Defamation 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;
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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
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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 persons 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
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The available defenses for the defendant in such circumstances are; The truth or justification can justify the defamatory comment by proving its 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 persons 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
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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
PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA120

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.

INTRODUCTION
LIABILITY 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
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without negligence that is accidentallyprovided 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.
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

1 2

Musporve vs. Panlelis (1919). 2. KB. 43. (1969) H.C.R. No. 293 PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA122

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 respondents 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.
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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 defendants shamba to the plaintiffs 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 elses 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 elses 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:

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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 27 th 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 Act the passing which of the Fire to Prevention the whole (Metropolis) 1774 extends

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. Collingwood vs. Home & Colonial Stores (1936). 155. L.T. 550 Facts:

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A fire broke out in the defendants 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 defendants 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 plaintiffs house and caused considerable damage. Held: I. II. The independent contractor was negligent; and 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 anothers 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.

James vs. Festining Rail Co. L.R. 3 Q.B. 733 PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA126

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. 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

Pearson Vs Lambeth Borough Council (1950) 2 KB 355 PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA127

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 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
5

Lathan Vs R. Johnson & Nephew Ltd. (1913) 1 KB 399.

Horton Vs London Graving Dock Co. Ltd (1949) K.B 584 Ibid. PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA128

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 occupiers 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 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:

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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 defendants 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 defendants 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 occupiers 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.
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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 plaintiffs 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

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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
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xii) Aggravation and mitigation of damages xiii) xiv) xvi) xvii) xviii) Aggravation in tort Mitigation in tort Distinct rules for measure of damages in contract and tort Appeals Recommendations on practice and procedure

xv) Contribution and apportionment

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
PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA133

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 legislation. the general law, or

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 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.
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12 Halsburys Law (4th edn) Para 1202 [1939] I KB748, at 756 (CA). PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA134

3. However, in certain circumstances, the court may award more than the normal measure of damages, by taking into account the defendants 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 Act 14 2006; and Workers Compensation Act, Cap 225. In this context, damages may be referred to as statutory damages.

CLASSIFICATION OF DAMAGES

1. Generally speaking, there are three kinds of damages: general damages, special damages and nominal damages.

General and special damages


12 Halsburys Law (4th edn) para 1112 12 Halsburys Law (4th edn) Para 1115 12 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. 14 See 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. PREPARED BY Mr. OKIYA JIMMY JANSKY
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LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA135

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 16

[1905] AC 515 12 Halsburys Laws of England (4th edn) Para 1113 PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA136

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 courts opinion that the action ought not to have been brought. 20 This
Ashby V. White [1703] 2 Ld Raym 936 Ratcliffe 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. 20 12 Halsburys Laws of England (4th edn) Para 1112 PREPARED BY Mr. OKIYA JIMMY JANSKY
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distinction is borne out by Njareketa V. Director of Medical Services Mulago [1950] 17 EACA 6021 where Sir Barclay Nihill C. J. reduced a 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 judges 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
[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 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 appellants 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 judges 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. 22 The Medina [1900] AC 113: [1900 3] ALL.ER Rep 126. PREPARED BY Mr. OKIYA JIMMY JANSKY
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your legal right has been infringed. But the term nominal damages does not mean small damages. (emphasis added).

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 defendants wrongful act but from the conduct of the plaintiff himself; or

PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA139

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, 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 126 25 is as helpful today as it was the past century:

Simply put, the expression exemplary damages mean damages for examples sake. These kinds of damages are clearly punitive or exemplary in nature. They
12 Halsburys Law (4th edn) Para 1114 Except 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. 25 Butterworth V. Butterworth & Englefield [1920] P 126. PREPARED BY Mr. OKIYA JIMMY JANSKY
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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 defendants conduct has been calculated by him to make a profit which may well exceed the compensation payable to the plaintiff, and

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:

[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. PREPARED BY Mr. OKIYA JIMMY JANSKY
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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 in the landmark case of Fredrick J. K. Zaabwe V. Orient Bank & Others Supreme Court Civil Appeal No. 4 of 2006 (unreported).

27 28

EACA No. 19 of 1965 (CA) [1965] EA 789 PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA142

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

See 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 plaintiffs rights a lesson that a tort does not pay. 30 Per Spry V.P. in Obongo & Another V. Municipal Council of Kisumu [1971] EA 91 31 See OConnor V. Hewiston [1879] Crim LR 46, CA; Archer V. Brown [1985] QB 401 PREPARED BY Mr. OKIYA JIMMY JANSKY
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case of 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
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 defendants 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. PREPARED BY Mr. OKIYA JIMMY JANSKY
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allowed to punish a 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
33

for

an

award

of

exemplary

damages;

Per McCarth J. in Huljich V. Hall [1973] 2 NZLR 279 at 287; a case from New Zealand. PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA145

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
For 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. 35 See for instance Ntabgoba V. Editor-in-chief of the New Vision & Another [2004] 2 EA 234. PREPARED BY Mr. OKIYA JIMMY JANSKY
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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 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

12 Halsburys Laws of England (4th edn) Para 1109 12 Halsburys 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. PREPARED BY Mr. OKIYA JIMMY JANSKY
36 37

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I. Some general rules and principles

1. No damages can be given on an indictment.38

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 Instead of defendant, gratitude the to appellants the second children would now be fatherless and his wife a widow. expressing 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
Seeles case (1639) Cro EAR 557; 79 ER 1080. Bessey V. Olliot and Lambert (1682) T Raym 467: 83 ER 244. 40 See endnote 14. 41 In 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. PREPARED BY Mr. OKIYA JIMMY JANSKY
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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 plaintiffs case if it offends public policy or outrages morality. This power is implicit 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) .

PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA149

(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 judges order as to costs. The appellant may certainly be a fit subject for charitable

PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA150

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.

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.

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, and d) 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 familys finances caused by the unexpected pregnancy. PREPARED BY Mr. OKIYA JIMMY JANSKY
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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 defamed 43; or actions alleging an interference by a third party with a contractual relationship between A and B; so, if C produces B to breach Bs agreement with A, A must prove actual damage to 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 .

43 44

The People V. The Lords Bar- reported in East African Law Reports. Per Kennedy L.J. in National Phonograph Co. Ltd V. Edison-Bell [1908] 1 Ch 335. PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA152

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.

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.
Bovet V. Walter (1917) 62 Sol Jo 104. Ungar V. Sugg (1892) 9 RPC 114, CA. 47 Chaplin V. Hicks [1911] 2 KB 786. 48 Hall V. Ross (1813) 1 Dow 201 3 ER 672, HL. 49 [1968] EA 511; [1969] EA 92
45 46

PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA153

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 appellants 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 judges 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

II.

WHERE ASCERTAINMENT IS DIFFICULT OR IMPOSSIBLE


PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA154

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 courts 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.
PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA155

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 the court to be paid is harsh for and the unconscionable and ought not to be enforced by legal process, may give judgment payment of interest at such rate as it may think just.
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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
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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.

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 Courts discretion is applicable. The basis of awards of interest is that the defendant has taken and used the plaintiffs 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
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not appropriate and I agree with them. The rate of interest of 20% awarded by the court of Appeal was more appropriate.50

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.

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 payment in full. PREPARED BY Mr. OKIYA JIMMY JANSKY
50

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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 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 Ltd 53 Supreme
Per Bowen LJ in the Argentino (1889) 14 App Ca 519, HL. Per Wertheim V. Chicoutimi Pulp Co [1911] AC 301; See also Robinson V. Harman [1843-60] All ER Rep 383. 53 Per 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. PREPARED BY Mr. OKIYA JIMMY JANSKY
51 52

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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 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).
54

Per Lord Blackburn in Livingstone V. Rawyards Coal Co (1880) 5 App Ca 25, HL. PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA161

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;

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


Hadley 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 PREPARED BY Mr. OKIYA JIMMY JANSKY
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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.

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:

57 58

Fetter V. Beale Holt (1701) KB 12. Gibbs V. Cruickshank as reported in LR 8 CP. PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA163

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 defendants 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 third person or of the plaintiff himself, the injury suffered by the plaintiff would not have occurred. See, Overseas Touring Co. (Road Services) Ltd.
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. PREPARED BY Mr. OKIYA JIMMY JANSKY
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V. African Production Agency (1949) Ltd. [1962] EA 190 , where a transport company was held liable to pay the cost of a customers oil tins even if the majority of these items were stolen by a crowd that gathered after the transport companys 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 Companys servant, a railway engine fell over from the defendant companys 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
60

Scholes V. Northern London Railway CO. (1893) (1870) 21 LT. 835. PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA165

defendants negligence would do well to adopt an objective test of reasonable 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.
61 62

[1921] 3 KB 560. [1843-60] All ER Rep. 461 PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA166

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 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 plaintiffs 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
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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 defendants conduct occasioned injury to feelings and dignity of the plaintiff. Lets 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

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7. Similarly, in tort, the existence of aggravating factors will have the effect of increasing the plaintiffs 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 defendants 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 defendants conduct is in the nature of aggravation, it may award additional damages to compensate the injury to the plaintiffs 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


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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

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

63 64 65

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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 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
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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 courts 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]
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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 todays 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.

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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

67

[1935] 1 KB 354.
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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 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 See 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 5 th issues was framed), on the evidence
68

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4. Per Oder, JSC in Uganda Breweries Ltd. V. Uganda Railways Corporation (unreported): Supreme Court Civil Appeal No. 6 of 2001

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

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 705 and Obongos case (supra) at Page 96.
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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.

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.

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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 appellants account to May 2003, when the Court of Appeal varied the trial Courts 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).

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.
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6. This general rule should also guide a High Court Judge in determining appeals from the magistrates 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.

PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA179

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 plaintiffs 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 plaintiffs were uncharacteristically unhelpful. The 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 plaintiffs propensity for a little exaggeration of his claims in this case, I am prepared to

PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA180

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 UGANDA DELIVERING BRITISH EDUCATION WITH A LOCAL TOUCH

"Knowledge speaks, but wisdom listens."

PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA181

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.

PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA182

PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA183

PREPARED BY Mr. OKIYA JIMMY JANSKY LECTURER/ RESEARCHER CAVENDISH UNIVERSITY UGANDA184

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