Lectures Week 7 Intentional Torts, June 30, 2014

University of Nairobi
School of Law
Ben@bmmusau.co.ke (http://www.bmmusau.com/
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LL.B2, The Law of Tort
Intentional Torts
Week 7
By
Benjamin Musau
Managing Partner
B M Musau & Co., Advocates
http://www.bmmusau.com/
Intentional Torts
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Trespass to the person and related torts
Wrongful interference with goods
Trespass to land
Defenses to intentional torts against the
person
Introduction
The torts of battery, assault and false imprisonment are core to the analysis of
trespass to the person.
The number of case law in this area were numerous during the 80s and 90s in
Kenya especially concerning false imprisonment, most actions of which were
brought against the state.
The global attitude has since shifted towards the protection of human rights
with the numerous conventions passed in this area, this has seen a decline in the
number of actions brought in this area.
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Trespass to the Person and Related
Torts
Introduction
Battery
Assault
Intentional physical harm other than trespass to the person
False Imprisonment
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Battery
Definition - Battery is any act of the defendant that directly and intentionally or
negligently causes some physical contact with the person of the claimant without
the claimants consent.
From this definition the following key elements can be deduced:
Defendants state of mind
No consent by the claimant
The character of the defendants act
Damages
Attention is drawn to the question of whether the act was intentional or
negligent.
N.B
It is an established fact that for action to lie in battery, the contact must be
direct.
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A. Negligently inflicted battery
Carelessness on the defendants part would not allow him to escape liability in trespass. Until
the decision in Letang v Cooper [1965] 1 QB 232, the torts of negligence and trespass were
both available in cases of direct injuries sustained as a result of careless conduct.
The academic confusion between negligence and trespass began not in Letangs case but 6
years earlier in Fowler v Lanning[1959] 1 QB 426 . In this case, Diplock LJ sought to ensure
the claimant could not gain an unfair advantage by relying on trespass rather than negligence
on the basis that with trespass the burden of proof would lie with the defendant to disprove
negligence on his part. Diplock aligned trespass to the person with the hitherto anomalous
principle, which result in imposing burden of proof on the claimant to show the defendants
negligence.
Fowler v Lanning did not abolish the principle that trespass to the person can be committed
negligently, it however shifted burden to the claimant to prove negligence where injury was
caused by negligent conduct.

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State of mind
The facts of Letang v Cooper are as follows: D negligently drove his car over Cs legs
while C was sunbathing on the grass car park of a hotel. More than 3 years later, C sued
D. The rules on limitation of actions provided that actions for negligence, nuisance or
breach of duty were barred after 3 years while other tort actions were barred after 6
years. C relied on trespass in an effort to prevent her action from being time-barred.
Lords Denning and Danckwerts insisted that there was no overlap between trespass and
negligence. It was though that if an act was intentional, it would result in trespass liability
and if negligent, in negligence liability.
Diplock on the other hand thought trespass could be committed negligently, but in such
cases the claimant had to prove both negligence alleged and that there was resulting
harm. This would mean that the claimant would gain no practical advantage from
framing his action in trespass than negligence.
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State of mind
Following Letang V Cooper, actions in negligent trespass have disappeared in
practical terms. Academically, the debate on relevance of negligence on trespass
persists.
There are still instances the claimant would gain an advantage in framing a case
in trespass than in negligence. E.g In negligence law, a defendant is only liable
for reasonably forseable harm while in trespass all the damage ensuing from the
defendants unlawful act is recoverable.
Most modern trespass actions are based on the defendants intentional act.
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State of mind
B. Intentional Act
Two meanings can be derived from this:
The defendant intended to act in the way he did
The defendant intended to both act in the way he did and to have the resulting
contact with the claimant.
In most cases, this distinction is of little significance. For instance if A throws a
punch at B and hits B, there is little distinction. However, if A aims a gun at a tree
which ends up bouncing back and striking B, it is clear the act was intended but
not the outcome. In such a case, holding A liable would be stretching the tort too
far.
If however, A aims at B and instead misses and shoots C whose standing next to B,
he may be held liable on basis of recklessness by applying the notion of transferred
intent(not yet established in the English legal context, it is an American notion)
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State of mind
Battery can be both a tort and a crime. In Haystead v Chief Constable of
Derbyshire[2000]3 All ER 890 the defendant was charged with criminal
assault for punching a woman in the face with the result that she dropped the
baby she was holding. The tortious counterpart of this crime is battery.
In the above case, the court didnt subscribe to the concept of transferred
intent. The court likened it to a situation where the defendant could have used a
weapon to fell the baby, save that this was a case of recklessness and not
intentional battery.
The court emphasized the need for a sufficiently direct act to ground liability. It
was however reluctant to address the question of whether intention applied to
the defendants actions only or it extended to the outcomes of the actions as
well. Regardless, the courts stand indicated its unwillingness to allow such
defendants to escape liability.

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State of mind
Where contact with the claimant is not problematic, the defendant need not
have intended any harm. Battery becomes actionable per se-without proof of
damage/ injury. It is only to be shown that the defendant understood the
contact was beyond that generally acceptable in the everyday conduct of life.
Wilson v Pringle[1987] QB 237 termed such contact hostile touching.
Hostile in that the defendant was doing something the claimant would object
to.
The use of the word hostile was doubted as being appropriate to describe the
necessary state of mindin F v West Berkshire Health Authority[1989] 2 All
ER 545 at 564.
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No consent by the claimant
Absence of consent is an element of the cause of action in battery. The claimant
must show absence of consent. In Freeman v Home Office[1983] 3 All ER
585 at 594-595 the principle that onus lies with the claimant was established.
Facts
The claimant, a prisoner alleged he was injected with mood changing drugs against
his will. Held that battery is a specific and unpermitted intrusion on the
claimants body, thus it was for the claimant to establish he did not agree to the
intrusion. This he failed to do.
That which constitutes a valid consent is often a fundamental issue especially in
the medical context. The issue of what exactly the patient consented to and
whether he was competent to consent arises. Once a claimant casts doubt on
the reality of a purported consent , consent may be treated as a defence.

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Character of the Defendants act
There must be a positive act by the defendant in an action for battery. No battery is
committed if an incident involving contact over which the defendant has no control
occurs.
There can be no battery if there is no contact with the claimant.
What extent of contact is sufficient? It has been stated that such contact should be
construed to satisfy physical molestation. Illustrations have been given to expound
on this: the brief gentle touching of another in a narrow passage is not battery, while
the least touching of another in anger amounts to battery. Courts are not expected to
give protection against the unavoidable contacts in everyday life.
The requirement of directness of the act applies. It is not enough the act causes the
contact. The contact must follow immediately from the act of the defendant, or be a
continuing act.
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Damages
Battery being actionable per se, damages can be awarded even if the claimant
suffers no tangible harm.
The courts can award additional damages on account of insult or injury to
feelings in respect of a battery that caused harm.
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Assault
Often, the commission of an assault occurs just before the commission of a
battery.
Definition- An assault is any act by the defendant that directly and
intentionally or negligently causes the claimant reasonably to apprehend the
imminent infliction of a battery.
In assault, the apprehension of contact must be established.
Usually where there is a battery, there is an assault, unless the person is hit from
behind.
Assault includes; brandishing a gun at someone, aiming an intercepted blow etc
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Assault
The case of the unloaded gun
There has been debate on whether brandishing an unloaded gun
amounts to assault. In Stephens v Myers (1830) 4 C & P 349 it was
held that there must be a means of carrying the threat into force for it to
amount to assault. Blake v Barnard(1840) 9C & P 626 was of a
similar opinion holding that the defendant could not have intended
battery.
In criminal law, pointing an unloaded gun at someone is an assault. A
modern day court is expected to hold a similar finding in relation to a
tort as a reasonable person would not be expected to know the gun is
unloaded and as such still experience reasonable apprehension. Where a
person is paranoid and as such apprehends a threat when another waves
his hands during a conversation does not amount to assault.
Words that instil reasonable fear of battery amount to assault. This was
the position taken in R v Ireland [1998] AC 147.
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Intentional physical harm other than
trespass to the person
This tort arises from the Wilkinson v Downton [1897] 2 QB 57 Case.
Facts
C was told by D, who knew to be untrue that her husband had been seriously
injured in an accident. Believing this, she suffered nervous shock resulting in
serious physical illness, and was held to have a cause of action.
Wright held the practical joker liable on the basis that he had wilfully done an act
calculated to cause injury on the plaintiff which it did. It was not clear whether
the defendant intended such harm caused. However, the judge stated that such
intention can be imputed in some cases as was in this case.
The decision in Wilkinson was recast as a negligence case in Carrier v
Bonham[2001] QCA 234 . It is recommended that modern case law follow this
course as it is unlikely the practical joker intended anything more than short
term distress.

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The basis of the sui generis nature of the principle in Wilkinson v Downton
derives from the fact that the nature of harm that was intended by the defendant
would not have sufficed to found an action on the case and the case of Victorian
Railways Commissioners v Coultas(1888) 13 App Cas 222 prohibited
recovery under negligence for nervous shock.
The decision in Wainwright v Home Office[2004] 2 AC 406 proposed a
reclassification of Wilkinson v Downton as a negligence case , whereby the
defendant failed to take appropriate care to avoid causing psychiatric harm to
the claimant. Regardless, the rule in Wilkinson remains.
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False imprisonment
Introduction
Character of the defendants act
Knowledge of the claimant
Who is liable for a false imprisonment
Damages
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Introduction
Definition - An act of the defendant which indirectly and intentionally (or
possibly) negligently causes the confinement of the claimant within an area
delimited by the defendant
In some instances, false imprisonment is accompanied with battery and assault.
This tort protects interest in freedom from confinement and against the loss of
liberty more generally.
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The defendant must do an act intended to effect confinement. Malice is
however not a requirement.
Intentional confinement done in good faith may make one still liable. This was
the case in R v Governor of Brockhill Prison ex p Evans [2001] 2 AC 19 a
prison governor who calculated the claimants day of release in accordance with
the law as understood at the time of her conviction was held liable when a
subsequent change of law meant the prisoner should have been released 59 days
earlier.
Negligence in some instances can be a basis to engage liability for false
imprisonment. If a person locks a door unaware a person is inside a room, it
would suffice. However, a remedy was made available in the tort of negligence
as opposed to false imprisonment in Clarke v Crew[1999] NLJR 899 where a
prisoner was negligently detained beyond that authorised by the court.
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False imprisonment is actionable per se. The courts however insist on total as
opposed to partial restraint of the person. Where there is even a small
allowance for escape e.g an alternative route, or through trespass on a third
partys land, there would be no false imprisonment.
Though confinement needs to be total it need not be in prison as the name
suggests. It can be in a house. The largeness of the area of confinement depends
on the circumstances of each case. Key is that the boundaries be fixed by the
defendant.
Where a person can only escape at the risk of injury or if it is unreasonable for
him to escape, it would constitute false imprisonment.
The barriers of constraint need not be physical. Restraint by a mere threat of
force that intimidates a person into compliance without laying hands on
someone is false imprisonment.

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A restraint by assertion of authority is enough for liability to arise.
Change in conditions of detention after lawful detention do not render such
detention unlawful.
False imprisonment must result from a direct act of the defendant which
deprives the claimant of his liberty. It is not false imprisonment where
detention does not arise from direct conduct of the defendant. It would not be
false imprisonment to make a person to be detained by the authorities following
the making of false statements to authorities.
False imprisonment is conventionally thought to result from positive acts.
However, in Herd v Weardale Steel, Coal and Coke Co [1915] AC 67 the
question arose whether liability can arise from a mere omission.
FACTS
C , a miner employed by Ds, descended into a mine pursuant to their contract
of employment. During his shift C requested that Ds carry him
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Character Defendants act
to the surface in their cage. Ds in refusing his request did not commit any
breach of contract, as their contractual obligation was to transport C to
the surface at the end of his shift. The action in false imprisonment failed.
From the case, failure to provide a means of egress from premises is not a tort.
Where there is no duty to provide one. The herd case failed to clarify whether
failure to carry out a duty, whether contractual or otherwise may constitute
false imprisonment in the absence of a positive act by the defendant.
This was clarified in the Governor of Brockhill case already discussed. It
was held that a tort had been committed where the prisoner was not released as
per the changed time schedule.
Where a direct and intentional confinement can be established, it becomes up
to the defendant to justify that confinement. Failure to justify, renders the
defendant liable no matter how short the period of confinement. The length of
confinement is considered for purposes of assessing damages.
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Knowledge of the claimant
The claimant need not have been aware of the imprisonment at the material
time of confinement.
Prior to 1988, this position was in conflict. In Herring v Boyle, where a boy was
unaware he had been detained in school for non payment of fees, the action for
brought failed. The position was however clarified post 1988.
In Meering v Grahame White Aviation Co(1919) 122 LT 44 a man
persuaded by police to remain in his office but unaware that he would have been
prevented from leaving had he tried to leave, successfully recovered damages for
imprisonment.
This approach was endorsed in Murray v Ministry of Defence[1988] 2 All
ER 521 where the court stated that actual knowledge of detention is not a
necessary element of false imprisonment.
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Who is liable for false imprisonment?
It is necessary to determine who can be sued when a person is wrongfully
detained. In Aitken v Bedwell (1827) Mood & M 68 the question Who was
active in promoting and causing the confinement? was proposed to assist in
determining who would be liable.
The following illustrations are used to examine the range of possible scenarios:
where a person gives information to the police and the police exercise their
judgement to remand the accused, does not make the informant liable. It is
important it be shown that the remanding of the accused was an act of the
informant rather than the police. However, if the police refuse to detain the
accused unless the informant charges him and signs the charge sheet makes the
informant and not the police liable for the detention. This was the position
established in Austin v Dowling(1870) LR 5 CP 534.
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Damages
False imprisonment is actionable per se. In addition to damages for loss
of liberty the court may compensate for injury to feelings and loss of
reputation.
Save in exceptional circumstances, damages are to be awarded only to
compensate the claimant and not to punish the defendant.
In very few instances have aggravated damages been awarded. Such
awards are normally made where the claimant was humiliated in the
course of detention. In assault and battery cases, it is inappropriate to
award aggravated damages except in wholly exceptional cases.
Exemplary damages are granted in exceptional cases as well. They are
only granted where the sum of basic and aggravated damages is
inadequate to punish the defendant for his oppressive behaviour.
Basically the amount of compensation to which a claimant is entitled will
be affected by whether he would have suffered the loss and damage had
things been done the way they should have been done.
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This is to be discussed under the following sub titles:
1. Introduction
2. Conversion
3. Trespass to goods
4. Residual torts
WRONGFUL INTERFERENCE WITH
GOODS
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Introduction
The law is expected to protect persons whose title to, or possession of goods is
interfered with, or whose goods are damaged by intentional conduct.
The following chattel torts form the basis of consideration:
1. Trespass to goods- This affords a remedy where there has been an intentional
or careless direct interference with goods in the claimants possession at the
time of trespass, whether that be by taking the goods from him or damaging
the goods without removing them.
2. Detinue- this provides a remedy in the case of wrongful detention of goods.
3. Conversion- this affords a remedy where a defendant wrongfully converts
goods to his own use.

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CONVERSION
Conversion entails intentional dealing with goods that is seriously inconsistent
with the possession or right to immediate possession of another person.
The tort protects the claimants interest in the dominion and control of his goods.
It does not protect his interest in their physical condition. As such the tort
concerns itself in title to personal property.
This tort is to be discussed in the following sub-topics:
Interest of the claimant
The subject matter
Type of act
Examples of actions amounting to conversion
Conversion as between co-owners
Damages

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Interest of the Claimant
Claimant must have either possession or the right to immediate possession in
order to sue. Equitable rights do not suffice for these purposes. The law of
conversion favours possession rather than ownership.
If a landlord rents out a furnished apartment for a fixed term and a third party
commits conversion in respect of the apartment, the landlord will not have a
right to sue under conversion but the tenant will.
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The nature of interests of the claimant may take various forms: bailment, lien and
pledge, sale, licensee, finder and third party rights(jus tertii)

Bailment
This is the temporary placement of control over or possession of personal
property by one person, the bailor, into the hands of another, the bailee, for a
designated purpose upon which the parties have agreed.
The bailee in a bailment arrangement can sue third parties in conversion.
If the bailment is determinable by will, the bailor can sue as he will be deemed to
have an immediate right to possession.

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A bailment which originally gave to the bailor no immediate right to possess
may become a bailment at will.
Where both a bailor and bailee enjoy concurrent rights to sue in conversion,
they both cannot exercise these rights against the defendant.
The successful claimant who sues first must account to the other for the
proportion of the damages representing his interest in the property.
The crucial issue for the bailor who owns the goods is whether he enjoys a right
to immediate possession:is the bailment one at will?
It often is a case of interpreting the contract to decide whether a particular act
of the bailee determines the bailment, or at least makes it determinable at will.
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Lien and Pledge
Where goods are entrusted to another to carry out particular services, the
person in possession of the goods acquires lien over the goods. He will be
entitled to retain the goods until he is paid for the services.
If title to goods has passed to a third party, that is, the claimant and the
defendant is aware of this, the defendant loses his right to retain the goods and
is required to deliver them to the claimant.
The holder of a lien has sufficient possessory interest to sue in conversion. If a
lien holder wrongfully parts with possession of the goods, he loses his lien, his
act itself amounts to a conversion.
A pledge confers interest more than a lien. It confers powers to sale in default
of payment on the agreed date. In Donald v Suckling( 1866) LR 1 QB 585 a
repledge did not end the pledge and the original pledgor could not sue the
second pledgee without tendering the sum owing.

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Also, the assignee of a pledgor cannot sue the pledgee who sells the goods because
until the sum owing is paid, there is no immediate right to possession.

Sale
It is sometimes difficult to determine which of the parties to a contract for sale of
goods has an interest sufficient to support an action in conversion. Does the buyer
have sufficient right to immediate possession of the goods? Or is it the vendor?
In Empresa Exportadora de Azucar v IANSA(1983) 2 Lloyds Rep 171 had
contracted to buy and paid for two cargoes of sugar to be shipped to them in Chile
by the defendants from Cuba. On the orders of the Cuban Govt, following a military
takeover in Chile, the ship discharging the first cargo, sailed away with the cargo
partially unloaded and the second ship was diverted back to Cuba part way through
its voyage.
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The buyers were held to have an immediate right to possession of both the
partially unloaded cargo and the diverted cargo and succeeded in their action
for conversion against the sellers.

Licensee
In some instances a licensee may sue in conversion. In Northam v Bowden
(1855) 11 Exch 70 the claimant had a licence to prospect certain land for tin,
and the defendant, without permission carted away some of the soil on his land.
It was held that if the claimant had a right to the gravel and soil for the purpose
of getting any mineral that could be found in it, he had such possession of the
whole as entitled him to maintain an action for its conversion against a wrong
doer.
Licencees of goods are expected to be accorded a similar treatment.

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Finder
Since possession is sufficient to ground a claim in conversion, someone who
finds a chattel can keep it and protect his rights to do so against third parties.
In Parker v British Airways Board[1982] QB 1004 at 1017 it was stated that
the finder of a chattel acquires rights over it if the true owner is unknown and
the chattel appears to have been abandoned or lost and he takes it into his care
and control. He acquire a right to keep it against all but the true owner or one
who can assert a prior right to keep the chattel which was subsisting at the time
when the finder took the chattel into his care and control.
In Amory v Delamirie(1722) 1 Stra 505 a chimney sweeps boy who found a
jewel was able to sue when the goldsmiths apprentice to whom he had handed
the jewel for valuation refused to return it to him.
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Any employee or agent who finds goods in the course of his employment, does so on
behalf of his employer who acquires a finders rights. Anybody with finders rights
has an obligation to take reasonable steps to trace the true owner.
An occupier of land or a building has rights superior to those of a finder over goods
in, under or attached to that land or building. A brooch buried under the soil in a
public park found belonged to the land owners.
Third Party rights( Jus tertii)
Courtesy of the Torts( Interference with Goods) Act 1977, the defendant in a
conversion action or other wrongful interference is entitled to prove that a third
party has a better right than the claimant with respect to all or any part of the
interest claimed by the claimant.
This provision was aimed at avoiding a multiplicity of actions by allowing interested
third parties to be joined in actions; to protect defendants
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Against the risk of being liable to different claimants in respect of the same
interference, and to limit the claimants damages to actual loss.
The relevant date of ascertaining the interests of the third party is the date of
alleged conversion.
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The Subject Matter
Any good is convertible. This includes negotiable instruments. The full value
represented by cheques is recoverable in conversion.
Conversion is seen to lie also in respect of intangible property. In Wills v
Wells(1818) 2 Moore CP 247, a life insurance policy was held to be convertible.
The intangible right must however be represented in the ordinary course of business
by a special written instrument, though not negotiable, will be recoverable.
In OBG Ltd v Allans[2007]UKHL 21 the courts were faced with the argument
that conversion should be extended beyond the class of document cases just referred
so as to encompass a chose in action in the form of debts and contractual liabilities.
The courts by a majority rejected extension of conversion beyond cases in which
rights were recorded in a document.
In later days the dissenting view of Lord Nicholls in the case became preferred. He
was of the view that the existence of a document is
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The Subject Matter
Irrelevant. Intangible rights can be misappropriated even when not recorded in
a document, and that in principle the intangible right not recorded in writing
may merit just as much protection as a recorded right.
From that stand, a document is seen to be treated as an evidence of a right, it is
not conclusive proof of a right.
In the medical arena, advances in science have introduced complex questions
concerning property rights in human body parts. Say, if a husband about to
undergo chemo therapy stores his sperm for later use by his wife in a sperm
bank, and the bank uses it without his consent to inseminate a patient other than
his wife, will the bank be liable for conversion?
There has been divergent views on this. In Dobson v North Tyneside Health
Authority[1996] 4 All ER 474 , the claimants daughters brain was removed
after she had died in a hospital and stored at the 2
nd
defendants
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The Subject Matter
Hospital. The brain was later disposed of. The claimants sued the hospital for
failing to preserve it as it deprived them of the opportunity to discover whether
the tumors were benign or malignant.
The court dismissed the conversion claim reaffirming the principle that there is
property rights in a corpse or its parts. Only where significant process has been
undertaken to alter that body or preserve it for scientific or exhibition
purposes, can any title to the body be claimed.
Obiter dicta in the case suggested that the approach taken applied o products
taken from human living bodies in the same way it applied to organs and tissues
from dead bodies.
The question of the status of sperm stored was addressed in Yearworth v
North Bristol NHS Trust[2009] EWCA Civ 37 . As much as cases for
accidental destruction of sperm brought by men who had made agreements
with health institutions were founded on negligence, the case
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The Subject Matter
points towards the availability of an action in conversion. The key question was
whether or not the loss of sperm constituted damage to the mens property.
The court held that although the Human Tissue Act 2004 circumscribed the ability of
men to direct the use of their stored sperm, they had property in it. As such an action
could lie in conversion for destruction of sperm.
The reasoning that led to such a conclusion went like this: first, a distinction between
capacity to own body parts or products which have and which have not been subject
to the exercise of work or skill is not entirely logical. Second, the men alone
generated by their bodies and ejaculated the sperm. Third, the sole object of their
ejaculation is that it may be later used for their benefit. Fifth, the men retained
absolute negative control over the sperm in that they could direct in what ways it not
be used.
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Type of Act
There can only be a conversion if there is positive conduct that interferes
with the claimants goods.( this is with the exception of statutory conversion
created under sec 2(2) of the Torts(Interference with Goods Act 1977).
The above stand was illustrated in Ashby v Tolhurst[1937] 2 KB 242. A 3
rd

party drove away Cs car which he had left in Ds car park. During trial, C
testified that the attendant told him that he had given the car to the 3
rd
party.
His conversion suit rested on the assertion that from the word given it could
be inferred that the attendant took some active step in placing the thief into
possession of his car. The court failed to derive such an inference thus the
conversion suit failed.
Liability in conversion suits is strict. Intention is irrelevant. This was reinforced
in Caxton Publishing Co Ltd v Sutherland Publishing Co[1939] AC 178 at
202. It was decided that if the defendant deals with the goods in
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Type of Act
a manner which interferes with the claimants possession or immediate right to
possession, his act will constitute conversion even if he didnt intend to
challenge the property or possession of the true owner.
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Examples of Actions Amounting to
Conversion
An act amounts to conversion if it is sufficiently inconsistent with the rightful
possessors rights. In sale of goods transactions, such acts are clear. In other
transactions however, the courts have the discretion to determine whether the acts
amount to conversion or not. This is the case especially in breach of bailment and
physical damage to goods.
The courts as such have no clear outline of the factors to consider in their exercise of
discretion, but most common is the extent and duration of the control or dominion
over the goods, amount of damage to the goods and the cost and inconvenience to the
rightful possessor.
The following actions mount to conversion:
1. Taking goods or dispossessing
To take goods out of the possession of another, to steal or to seize under legal process
without justification is conversion. Mere movement of goods from one location to
another is not conversion. Movement only amounts
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Conversion
to conversion if the goods are moved to an unreasonable location with an intrinsic
risk of loss.
Deprivation of goods that is more than a mere moving will be conversion, as it
is presumed to be forcing the claimant to hand over goods under duress and
deprives him of their use.

2. Destroying or altering
Voluntary destruction of property is conversion. Mere damage is not
destruction, the quantum of harm constituting a destruction is a question of
degree.
A change of identity not amounting to destruction is not conversion.
If goods are used for a purpose which eliminates their utility as goods in their
original form, it amounts to conversion.
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Conversion
3. Using
Using goods as ones own, which are not, amounts to conversion.

4. Receipt, Disposition and delivery
Voluntary receipt of goods in consummation of a transaction intended by the
parties to give to the recipient some proprietary rights in the goods may
amount to conversion.
If the defendant receives the goods in good faith for purposes of storage or
transport, it does not amount to conversion. Receipt of goods by pledge is
conversion if the delivery is conversion.
With regards to disposition and delivery, there is no conversion where a person
agrees to sell goods to which he has no title, but does not transfer possession of
them.
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Conversion
5. Misdelivery by Carrier
If a carrier or warehouseman mistakenly delivers goods to the wrong person
commits conversion irrespective of whether or not his mistake is innocent.
Failure to deliver goods because they are lost or destroyed by accident or
carelessness is not conversion.

6. Refusal to surrender on demand
Refusal to surrender upon lawful and reasonable demand is conversion. This
includes a scenario where possession by the defendant was originally lawful.
Even if the defendant no longer has possession at the time of demand and refusal, it
is no defence to prove that prior to the accrual of the claimants title he wrongfully
parted with them.
49
Conversion
The defendant may postpone the surrender until after he has had a reasonable
time to confirm the title of the claimant, or if he is an employee after adequate
time to consult with the employer. Reasonableness is a question of fact.

7. Goods lost or destroyed
At common law there could be no conversion where there was no voluntary
act.
Bailees are to take reasonable care of goods in their keeping and are liable for
loss and destruction of such goods, they are however not insurers of the goods.
Denial of title is not in itself conversion. There may however be conversion of
goods even where the defendant has not physically dealt with them, or been in
physical possession of them, if his acts deprive the claimant of his.
50
Conversion
right to possession or amount to a substantial interference with that right. A
mere threat to prevent an owner in possession from removing his goods will not
of itself amount to conversion.

8. Residual acts amounting to conversion
Where acts dont fall within the aforementioned categories, judicial discretion
to treat the act as sufficiently inconsistent with the rightful possessors rights
will be exercised.
51
Conversion as between Co-owners
Sec 10(1) (a) of the Torts( Interference with Goods) Act 1977 provides that co
ownership is no defence to a conversion action where the defendant without
the authority of the other co owner destroys the goods or disposes of them in
such a way as to give a good title to the entire property in the goods.
A co owner cannot be sued if he makes use of the common property in a
reasonable way or where he takes and keeps the common goods. The law
requires a destruction of the goods or something equivalent to it.

52
Damages
The claimant in a conversion suit is entitled to be compensated to the extent of the
value to him of the goods of which he has been deprived. The prima facie measure of
damages is the market value of the goods at the time of conversion.
Where goods are of a kind which can be readily bought in the market, the actual
market value will be the appropriate measure, or the original cost minus
depreciation will be the standard. It is for the defendant to argue that the appropriate
compensatory figure is a lower one.
A manufacturer of goods with a contract of their sale is prima facie entitled to the
sale value of the goods, including the profit component. The defendant is to prove
that the alleged loss of profits will be recouped by alternative sales.
Mitigation of losses is necessary on the part of the claimant. Reasonable costs of
mitigation are recoverable by the claimant.
53
Damages
Basing damages on the value at the date of conversion in some cases works to
the claimants benefit, e.g where the goods decrease in value over time.
The key purpose of damages is the compensation of the claimant, thus, in the
following instances the market value at the date of conversion will not
necessarily mark the top limit of damages recoverable:
1. The market value of the goods rises between the date of cause of action and
trial. A claimant may recover from a broker who has sold his stock its
increased value within a reasonable time.
2. Whether or not the claimant incurs pecuniary loss as a direct consequence of
the conversion, he may recover special damages in addition to the market
value of the goods.
3. The court will not award damages both for loss of use and for the value of the
goods where the effect would be to double compensate the

54
Damages
claimant.
Exemplary damages may be claimed where the general preconditions necessary
for such an award have been satisfied.
In the exercise of caution not to over-compensate the claimant, the following
points must be borne in mind:
1. If the defendant converts the claimants goods and then increases their value,
the claimant cannot ordinarily recover that increased value.
2. Where the court orders the defendant pay damages representing the
increased value, as at the date of judgment, of goods converted, this will not
be accompanied by an award of interest on the loss of use of money that
would have been obtained by the claimant on an earlier sale of those goods.
3. If the defendant returns the goods before trial, the courts will reduce the
damages in conversion by the amount of its value at the time.
55
Damages
4. The conversion of goods subject of a hire purchase agreement, the interest of
the owner and rightful possessor in the goods is diminished by the extent to
which payments have been made under the agreement
5. Where the defendant has an interest in the goods, the claimants damages in
respect of the interference with his interest are limited to the value of that
interest.
56
Other Remedies
The following remedies are available to claimants other than damages : an order
for delivery and for payment of any consequential damages( is at the courts
discretion); an order for delivery of goods, but giving the defendant the
alternative of paying damages by reference to the value of the goods (the
defendant may satisfy the order by returning the goods at any time before
executing the judgement, but without prejudice to liability to pay any
consequential damages).
57
Trespass to Goods
This is to be discussed under the following titles :
Forms of trespass
Character of the defendants act
Interest of the claimant
Damages

Introduction
This tort protects the following interests: claimants interest in the possession of
goods; claimants interest in the physical condition of goods and lastly the
inviolability of goods.
58
Trespass to goods
Forms of trespass
Trespass takes the following forms: taking goods out of the possession of
another; moving from one place to another; bringing ones person into contact
with them inter alia.

There can be no trespass if the interference is indirect. In Hartley v Moxham
(1842) 3 QB 701 it was the case that locking the room in which the claimant
has his goods is not trespass to them.
An interesting illustration was made in Hutchins v Maughan[1947] VLR 131
where a person who mixed a drug with the feed of racehorse was held to have
committed trespass to the feed but not to the racehorse when it was later given
the feed.
59
Trespass to goods
In Leitch & Co Ltd v Leydon , it was established that trespass to goods is always
actionable per se. Though in Burroughes v Bayne( 1860)5 H & N 296 it was
proposed that trespass is actionable per se but only where there is a
dispossession of the claimant.
In White v Withers LLP[2009] EWCA 1122 the question of the extent to
which the law will in modern times tolerate actions in trespass to goods which
do not involve interferences of a substantial nature.

There is no liability in respect of an act that is neither intentional nor negligent.
This means there is no liability for accidental trespass to goods. However, if the
defendant intended to interfere his trespass is intentional even though he did
not know that his act amounted to a trespass to goods.

60
Trespass to goods
The Interest of the claimant
The claimant must be in possession of the goods at the time of interference.
Possession connotes both power(factum) of exercising physical control and the
intention(animus) to exercise such control on his behalf. Ownership is
immaterial.
There are 3 exceptions to the rule that possession is essential:
The title of executors or administration relates back to the of the deceased, and
this entitles them to sue for a trespass between the date of the death and the
date of the grant.
The owner of a franchise in wrecks has been deemed to have constructive
possession of a wreck so as to enable him to sue in trespass a person who seized
a caskk of whisky before he could do so.
Where goods were assigned as security for a loan upon trust to permit the
61
Trespass to goods
assignor to remain in possession until default in repayment, the assignee could sue
in trespass while the goods were still in the assignors possession( White v
Morris (1852) 11 CB 1015.

Damages
1. Measure
Where the claimant is deprived of the goods, he is entitled to their value by way of
damages.
A claimant may recover general damages for loss of use of goods although he
would not have been using them during the period within which he has been
deprived of their use.
Trespass ab initio.
Where a person having by authority of law entered on land or seized goods
62
Trespass to goods
or arrested a person, subsequently commits a trespass, his original act will in
certain circumstances be deemed itself to be a trespass.
This doctrine however has little modern prevalence. Its importance is limited to
the fact that , presumably, damages may be assessed on the basis that the entire
conduct of the defendant, and not merely his subsequent wrongful act is
tortious.

Residual torts
Where the violation of interests in goods is not protected by trespass, conversion
or negligence, a wider right of action is adopted. Such torts still will be under
the Torts(Interference with Goods) Act 1977.
63
Trespass to Land
This topic is to be discussed under the following subtitles:
1. Trespass
Types of act that constitute trespass
What may constitute the subject matter of an action
Who may sue
2. Remedies
Damages
Injunctions
Recovery of Land
3. Defences
Justification

64
Trespass to Land
Licence
Search Warrants

Introduction
This tort protects the interest of the claimant in having his land free from unjustified
physical intrusion of another. Focus is on possession and not ownership.
This tort developed to protect a person's possession of land, and so only a person who
has exclusive possession of land may sue. Thus, a landlord of leased premises does not
have exclusive possession, nor does a lodger or a licensee. However, a tenant or
subtenant do.

Types of act that constitute trespass
There must be directness.

65
Trespass to Land
In Reynolds v Clark(1725) 2 Ld Raym 1399 a complaint landowner who
complained that the defendant had erected a spout to drain away water from the
eaves of the house of the defendant, as a result of which water dripped on to the
claimants adjoining land, can sue only in nuisance, not in trespass, because of the
indirectness of the invasion.
A distinction has to be drawn between direct and indirect invasions. This has been
illustrated in Gregory v Piper(1829) 9 B & C 591 and British Waterways Board v
Severn Trent Water Ltd[2002] Ch 25.
In the first case, it was held to be trespass where rubbish that was placed near the
claimants land, on drying rolled on to it because of natural forces.
A contrasted view was adopted in the 2
nd
case, where it was made clear that an
action may only be brought by the riparian right owner in respect of the direct
fouling of a river, but that an action would not lie in respect of the fouling of
adjoining land.
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Trespass to Land
Basically, the intrusion on to the claimants land must result from some act or
omission on the part of the defendant, or persons for whom he is responsible.
Simple entering of a persons land is trespass. To remain on the land after the
trespassory entry is in itself also a trespass known as a continuing trespass.
Also a person who is on land with the permission of the possessor has been held
a trespasser if he remains there for an unreasonable time after the termination
of that permission. However, one is not a trespasser within the reasonable
time he takes to leave premises.
An action for trespass may lie against a tenant at sufferance. However, where
ones tenancy expires but the landlord permits the tenant to stay beyond expiry,
either from year to year or at will, no action would lie.
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Trespass to Land
Subject matter of an action
The tort being trespass to land, the land itself, anything attached to the soil, and
capable of being separately possessed may also be the subject matter of trespass
e.g grass, crops, profit a prendre.
Possession can be separated horizontally. Where possession in the pasturage,
surface and subsoil, minerals beneath lie in three different people, each can sue
if their subject matter of possession is invaded.
In the absence of specific provisions of law, the owner of the surface is
presumed to own the underground. The land law maxim cujus est solum ejus
esque ad coelum et ad inferos becomes applicable in the Kenyan context.
Which is to the effect that whoever owns the soil, owns all that is above and
below from the heavens to hell.
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Trespass to Land
Defendants State of Mind
The decision in JA Pye (Oxford) Ltd v Graham[2003] 1 AC 419 laid the
foundation by indicating two elements of possession required which entail: factual
possession and the intention to possess.
With regards to intention to possess, Lord Browne-Wilkinson went with the holding
in Powell v McFarlane(1979) 38 P & CR 452 that there must be an intention to
exclude the world at large, including the owner with the paper title if he be not
himself the possessor, so far as .
Mistake is no defence to trespass, the defendant cannot plead he innocently thought
he was on his own land.
There can be no liability if the entry was involuntary.
A negligent unintentional act may amount to trespass. If A throws a stone to B s land
and as is forseable, it ricochets to Cs land, it becomes trespass to both B and Cs land.

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Trespass to Land
Who may sue
Possession is what entitles a claimant to sue. The following persons can sue:
owner with an equitable interest with possession; person with statutory
possession; tenant ;persons with interests short of a lessee but with exclusive
possession etc.
In National Provincial Bank Ltd v Ainsworth[1965] AC 1175 the House of
Lords unanimously held that a deserted wife at the time had only a personal,
but no proprietary interest in the matrimonial property, nonetheless, Lord
Upjohn held that as she had exclusive occupation she could thus bring
proceedings against trespassers
It is no defence to the trespasser that the claimants possession is unlawful. The
simple fact of possession is enough. However, the possession is different as
against the true owner.
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REMEDIES
Three remedies will be discussed under this part: damages, injunctions and recovery of
land.
Damages
A claimant is entitled to full reparation for his loss. The depreciation in selling value
will be an adequate measure for destruction of , or damage to land.
The claimant may occasionally recover special damages on the cost of replacement of
premises .
All measures of damages ,whether based on market value or replacement cost, are
subordinate to the general and overriding tort principle of restoring the claimant to
the position he was in before the commission of the tort.
The measure of damages for wrongful occupancy of land is generally assessed in terms
of the reasonable rent value of the land during the time of the

71
REMEDIES
defendants occupancy.
Aggravated damages are potentially available where the interference with
possession was high handed, insulting or oppressive in nature.
Exemplary may be available in rare cases where a tenant is unlawfully evicted by
his landlord.

Injunctions
This remedy is available in the case of continuing trespasses to restrain the
trespasser.
In some instances a mandatory injunction may be obtained to require a
trespasser to restore the land to its former state.
A quia timet injunction may be granted to restrain the prospective trespasser, in
cases where the act of trespass is merely threatened.

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REMEDIES
Recovery of land
The rule as at common law is that the person entitled to possession may use
reasonably necessary force to remove a trespasser. However, in many cases the
rightful occupant would prefer to pursue an action for recovery of land.
In order to succeed the claimant must demonstrate the relative weakness of the
defendants possessory rights. The defendant need not show that he has perfect
title merely a better title than the defendant.
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Defences
Three defences may lie: justification, licence and search warrants.
Justification
There is no actionable trespass where one can show legal justification for ones
presence on anothers land. Take the instance where police officers are permitted to
enter ones land to make an arrest or search premises therein.
Two principles have been laid down: a recognized authority to enter anothers land
will defeat any prospective trespass action and a distinction must be drawn between
an absolute right and a mere power to do an act that involved an avoidable trespass.

Licence
This defence may be raised where the claimant landowner has granted the defendant a
permission whether express or implied to enter the land.
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Defences
Such licences do not require the entrant be granted any proprietary rights in
respect of the land, a permission to be there suffices.
If the entrant exceeds the permission conferred by the licence, he becomes a
trespasser. The entrant may also not remain on the land on revocation of the
licence.

Search Warrants
Judicial officers may grant warrants which entitle police officers to search the land
of a person.
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Defences to intentional torts Against the
person or property
This topic is to be discussed under the following titles:
Introduction
Absent element defences
Justification defences
Public policy defences
Non defences

Introduction
Defences to liability in the intentional torts can be organised within three
categories;
1. Absent element defences- these are denials of one or more of the elements of
the tort in which the claimant sues.

76
Defences to intentional torts Against
the person or property
2. Justification defences- they release defendants from liability even though they
committed a tort on the ground that acting tortiously was reasonable in the
circumstances. The tortfeasor must have used reasonable and necessary force. Most
common in this category include: self defence, defence of another person, defence of
once property inter alia.
3. Public policy defences- they recognise that it is sometimes necessary to release an
unjustified tortfeasor from liability in order to advance some important social goal.
Most common defence is illegality. This prevents claimants from being compensated
if they were engaging in an offence at the time of the defendants tort and their
offence contributed to the damage.

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Absent Element Defences

The following absent element defences will be discussed;
1. involuntariness
2. physical compulsion
3. inevitable accident
4. consent
Involuntariness
No tort is committed by a defendant whose impugned behavior is involuntary.
The courts treat the plea of involuntariness as a denial of fault. This is because a
person , except in relatively uncommon circumstances, is at fault for his
involuntary movements.

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Physical Compulsion
In Ward v Weaver (1616) 80ER 284 it was stated that if A grabs hold of Bs
hand and uses it to hit C, B is not liable to C in battery.
This is because the action element of battery is not present.
This different from duress because it involves a party using the body of another
to commit a tort unlike duress which involves a defendant acting tortiously in
consequence of threats made by a third party.

Inevitable Accident
An accident is considered inevitable in law if it could not have been avoided by
taking reasonable care and was not intended by the defendant.
It is a defence because intentional torts require that the defendant acted
intentionally or negligently.

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Consent
Coming into contact with another person or their property is wrong only when
it is non-consensual.
It is the equivalent of a plea of voluntary assumption of risk in relation to the
plea of negligence.
It can be explicit or implied.
Consent is implied in instances of a boxer or footballer involved in the game.
In Arthur v Anker[1997] QB 564 (CA) , C A held that where a person had
unlawfully parked his car on anothers land knowing that the latter asserted a
right to wheel-clamp trespassing vehicles and charge for their release, he had
impliedly consented to the unlawful detention of his car so that there was no
trespass to goods.

80
The consent must relate to the class of act complained of, or else liability will
arise. This does not mean that the consent is to relate exactly to the defendants
act.
Consent is a state of mind on the part of the claimant. The law is yet to be clear
on whether state of mind is to be determined objectively or subjectively.
A subjective approach entails where consent will only be deemed present if the
claimant agreed to the defendants contact with his person or property.
An objective test entails where a reasonable person would conclude based on an
assessment of the claimants conduct, that the claimant consented to the
contact.
Fraud or deception may vitiate consent. For example, if D impersonates Cs
partner and has sexual intercourse with D believing him to be her
81
partner, Cs consent to the intercourse will be vitiated.
Consent that is obtained under duress is no consent at all. In this case, a show
of authority may constitute distress.
The state has an overriding interest to maintain order, as such, consent is not an
answer to criminal liability. Consent of a person to the infliction of actual bodily
harm is ineffective in the criminal law context, unless it is for a good reason
such as medical surgery.
Where the defendant mistakenly believed the claimant consented to the
contact, it becomes a complex issue. Torts law position on this is unclear.
Criminal law precludes liability on account of a reasonable mistake. It is argued
that tort law should adopt an approach that is less favorable to the defendants.
With regards to consent to medical treatments, the patients must be classified
into 4 groups: adults with capacity to consent; children; patients
82
suffering from mental incapacity and receiving the required treatment and patients
lacking capacity but cannot be said to be mentally incapacitated.

Adults with capacity to consent
Non consensual physical contact with a competent adult patient is a prima facie
battery. This reflects the right to self determination as was underscored in
Schloendorff v Society of New York Hospital 105 NE 92, at 93 (NY, 1914).
Consent need not be written, it may be implied from conduct.
A patients consent to treatment is ineffective if he has not been explained to the
precise nature of the treatment. It is however argued that failing to warn the patient
of the risks and side effects of the treatment will not vitiate consent, it may only
constitute a breach of the doctors duty to give proper advice and becomes
actionable under negligence. A
83
claim in battery is available only where the defendant actively misleads the patient.

Children
In Kenya, persons under the age of 18 fall within the category of minors.
Parental responsibility as defined under section 23 of the Childrens Act defines
parental responsibility to include medical care.
In this context consent of a parent/ guardian is mandatory for medical
treatment on a child.

Patients mentally incapacitated (as within the Mental Health Act, Cap
248)
Treatment of such patients are governed by the Act.

84
Patients not falling within the Mental Health Act.
There is a presumption of capacity that is ousted only if shown on a balance of
probabilities, that the patient lacks capacity.
85
Justification Defences
Justification defences exempt persons from liability who act reasonably in
committing a tort. Such defences encompass others which are pleaded under
this category.

Self defence
To sustain this defence the defendant must prove it was necessary to use force
to repel an attack by the claimant or to prevent or terminate false
imprisonment and the amount of force used was reasonable.
There is a necessity limb to the test laid in this category. It means that the
defence will be unavailable unless physical force was the only realistic means of
avoiding the threat posed by the claimant.
The necessity criterion dictates that the threat posed by the claimant must be
reasonably imminent.
86
There is also a reasonableness limb which is concerned with whether the
amount of force used by the defendant was proportionate to the threat posed by
the claimant. What constitutes reasonable force is a question of fact.
This defence will also be available to a defendant who uses force against an
innocent person whom he mistook for an aggressor provided that his mistake
was reasonable and the requirements of necessity and proportionality are
satisfied according to the world as perceived by the defendant. This principle
was laid down in Ashley v Chief Constable of Sussex Police [2008] UKHL
25.

Defence of another person
This defence previously could only be pleaded by persons in certain
relationships. In the modern day, the plea is not limited to specific
87
Relationships.
The measures taken ought to be necessary and proportionate.

Defence of ones property
One may use reasonable force to defend property in ones possession against
any person threatening to commit or actually committing a trespass on it.
A key requirement is that the defendant must have possession of the property in
question as would enable him to sue the claimant in trespass.
Whether force is necessary and reasonable depends on the facts of each case.
The use of force will be unnecessary if the claimant would have ceased
interference following a verbal request from the defendant.
It is stated that the use of force in defence of property may be harder to

88
justify than in self defence cases.

Defences of anothers property.
Reasonable force may be used to protect property of another household. It is
however difficult to reconcile this with the principle already discussed that for
one to sue one must have sufficient possession of property.

Recapture of land or chattels
A person who enters land in respect of which he has a right of possession and
who uses no more force than is reasonably necessary to evict a trespasser can
plead recapture of land.
Tort law recognizes recapture of chattels. One who has reasonably been
dispossessed of a chattel may use reasonable force to retake it.

89
Abatement
This is a defence to a liability in trespass to land. It applies where a person takes
reasonable steps to terminate a nuisance. It extends to objectively warranted
steps taken to reduce a nuisance or to bring one to an end. It will however be
forfeited if one uses disproportionate force to eliminate the nuisance.

Distress
If the claimant owes the defendant a debt, the defendant may distrain chattels
belonging to the claimant until the claimant discharges his debt.
The defendant is expected to have acquired the property in a reasonable way
and taken reasonable care of it.
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Public Necessity
This defence is meant to preserve important public interests from danger. It is
available if the following circumstances have been met: there must be an actual or
apparent danger to a public interest; the danger must be imminent; the steps taken to
protect the public interest from danger must be reasonable and the defendant must
not have been at fault for creating the threat.
The major difference between this defence and defensive force defence is that the
latter presupposes the claimant is a wrong doer whereas the former contemplates
infliction of harm on an innocent person.

Discipline
This can be appreciated along two lines: discipline towards children and unruly
passengers on ships and aircrafts.
91
With regards to children, force can be used by those with parental
responsibility and teachers or other persons responsible for training and
educating children. The corrective force used must be reasonable.
With regards to passengers on vessels, the captain may use reasonable force
against passengers who commit some act calculated in the apprehension of a
reasonable man to interfere with the safety of the ship or the due prosecution of
the voyage.

Arrest
This is with regard to the power of arrest conferred on the police and in some
cases private citizens. The arrest by the police may be executed with or without
a warrant depending on the nature of the offence and the facts in question. This
is covered under criminal procedure. The force used has to be reasonable.
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Entry, search and seizure
The police are also conferred with powers to enter, and search premises and
seize substances sought. This provides a defence to what would otherwise
amount to trespass on goods, persons, land inter alia.
Statutory Authority
Public bodies and officials are empowered or obliged to perform particular acts as
per statutory provisions. If a tort is committed while performing such an act,
they may plead this defence.
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Public Policy defences
These defences exist in order to advance some important goal external to tort
law. Three defences may be pleaded under this category: illegality, prior private
prosecution and judicial acts.

a. Illegality
Illegality denies the existence of a duty of care if raised in relation to negligence
cases. In negligence, it is pleaded as an absent element defence.
In relation to intentional torts, the courts have not been clear when a claim in
intentional torts would lie for illegality.
The courts have been seen to craft three different views seen in 3 cases:
Approach in Revill v Newbery [1996] QB 567
The claimant burglar was shot by the defendant occupier while he tried to
94
break into the defendants shed. The defendants defence of illegality failed. The court
was of the view that if the defence was to be upheld, it would render the claimant an
outlaw and such a result had been discountenced with the enactment of the
Occupiers Liability Act.

Approach in Cross v Kirkby[2000] All ER (D) 212
The claimant, a hunting protester, attacked the defendant, a farmer on whose land he
was trespassing for the purpose of disrupting a hunt, with a baseball bat. The
defendant wrestled the bat from the claimant and used it against him. In resisting the
action for battery, the defendant relied on the illegality defence.
The court stressed the need to consider whether the claimants damage was closely
connected.. or interwoven or linked with his legal conduct.
The court held the connection between the claimants offence and his loss

95
was sufficiently close to enliven the defence.

Approach in Lane v Halloway[1968] 1 QB 379 (CA)
The claimant, an elderly man, provoked the defendant, who was younger and much
stronger by insulting his wife and by striking him on the shoulder. The defendant
retaliated with a powerful punch that caused the claimant serious injury. The
claimant brought proceedings in battery in respect of this injury. The defence of
illegality failed. The force used by the defendant was considered disproportionate to
the gravity of the claimants offending.

Two major principles were established from the cases: first, the mere fact that the
claimant was acting unlawfully at the time of the defendants tort will not prevent
liability from arising.
96
Second, trivial offending will not enliven the defence.

B. Prior private prosecution
If a claimant brings a private prosecution against the defendant for battery, this
will provide the defendant with a defence to any civil liability that he may have
incurred in respect of the act on which the prosecution was based.

C. Judicial Acts
Judicial officers enjoy immunity in tort.
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Non-defences
This part discusses what cannot be pleaded as a defence.

A. Duress
It was decided in Gilbert v Stone (1641) Aleyn 35; 82 ER 902 (KB) that
duress is not an answer to liability in tort.
Facts of the case are as follows: 12 bandits threatened to kill the defendant if he did
not help them to steal the claimants horse. The defendant yielded and was sued by
the claimant in trespass. It was held that the fact that the defendants acts were
coerced was no defence. The outcome would have been different if the bandits had
carried or pushed the defendant to the claimants land.

B. Provocation
Provocation is no defence for liability in battery but it is a factor that can

98
Non-defences
diminish the awards of exemplary and possibly compensatory damages.
C. Insanity
Insanity is no defence to liability in tort. Mentally incapacitated persons have
been held liable for battery as was the case in Morriss v Marsden[1952] 1 All
ER 925.
D. Infancy
The fact that the defendant was an infant at the time of committing the tort is no
defence .This was underscored in Jennings v Rundall (1799) 8 TR 335 in the
following words if an infant commit an assault, or utter slander, God forbid that he
should not be answerable for it in a Court of Justice.
E. Contributory negligence
This defence is available for the tort of negligence but not for trespass to the
Person.
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Non-defences
F. Mistake
Mistake as a defence cannot be relied on for intentional torts. This is the position
even if the mistake is reasonable. If the defendant drove his tractor to the claimants
land, the fact that he mistakenly believed the land was his own or that the occupier
consented to his entry will not prevent the tort of trespass to land from being
constituted.

G. Private Necessity
Unlike public necessity which applies where a defendant commits a tort to protect a
greater public interest from an imminent risk of harm; private necessity entails the
defendant acting tortiously in order to safeguard an interest of his own from a
sudden emergency.
Public necessity is a defence while private necessity is not.
Debates on private necessity are founded on the case of Vincent v Lake
100
Non-defences
Erie Transportation Co. 124 NW 221(Minn, 1910).

Look up Kenyan case law on the
discussed areas and see how they relate and apply the principles
discussed.

101

Lectures Week 7 Intentional Torts, June 30, 2014

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University of Nairobi

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