TORTS 1-Lecturer: Emily

Kinama
Introduction Lecture 1

Tort is a French equivalent of the

English word wrong
It is derived from the Latin word tortus
meaning twisted.
The elusiveness of a precise definition
Definition by Salmond
A tort is a civil wrong for which the
remedy is a common law action for
unliquidated damages and which is not
exclusively the breach of contract or
breach of trust

Cont.
Definition
by
Winfields
and
Jolowiz
Tortious liability arises from breach
of a duty primarily fixed by law,
this duty is towards persons
generally and its breach is
redressible by an action for
unliquidated damages.

Cont.
Definition by Clark and Lindsel
a tort is a wrong independent of contract for
which appropriate remedy is a common law
action
Definition by Reter Birks
the breach of a legal duty which affects the
interests of an individual to a degree which the
law regards as sufficient to allow an individual to
complain on his or her own account rather than
as a representative of the society as a whole

Cont.
Torts: the existence of a legal duty - a
breach of the duty or a civil wrong
appropriate damages (the later is one
of the many common law remedies in
tort)
A person committing a tort is called a
tort-feasor or wrongful doer and his
wrongful act is called a tortious act.
What are the objectives of torts?

Cont.
1. To compensate the victim or their
dependents;
2. To protect fundamental human rights of the
claimant;
3. Deterrence exemplary damages;
4. To reconcile competing interests e.g
freedom of expression (of speech and
publication). Person A publishes certain
words about person B. person B thinks the
words are injurious to his reputation.

TORTS AND OTHER

BRANCHES OF LAW
Tort and contracts Lecture
2

Similarity: generally, they both concern

award of damages (not the exclusive
remedy)
Distinctions
1.In Torts: duties fixed by law. Liabilities
therefore arise by virtue of the law. In
contracts: duties fixed by parties
liabilities arise by virtue of what the
parties have voluntarily agreed upon

cont.
-

Blurred: in modern day, some terms in

contracts are imposed upon parties by the
law; independent of any agreement
between the contracting parties e.g Sale of
Goods Act; for a contract of sale, it imposes
a duty on the seller to ensure that the
goods being sold are fit for the purpose for
which they are meant.
Similarly, in torts, parties involved can
arrive at an agreement to vary tortious
liability e.g a person entering your
premises upon occupiers consent

Cont.
Hedley Byrne & Co. v. Heller & partners Ltd.
(1964) AC
1.In torts, the duty is towards persons
generally ( in rem). Contracts- the duty is
towards specific person (s) (personnam).
2.Torts

damages
unpredetermined.
Contracts predetermined by the parties
(blurred)
3.In torts, one can determine intangible loss
e.g loss of comfort or injury to feelings not
covered in contracts.

Cont.
4. The time period within which an

action can be brought Limitations Act;

an action founded in torts; 6 years:
contracts ; 3 years
5.No prior contact in most torts. All
contracts have prior contact before the
tortious act through negotiations e.g
injuries caused to a pedestrian because
of a negligent motorist

Cont.
In many torts, parties know each
other very well while some contracts
may be implied by the law thus
parties have either little or no
contact at all.

Torts and Crime

Similarities
1.Both are violations of rights in rem
2.Rights and duties are fixed by law
Differences
1.Nature of wrong
A tort is a private wrong; an infringement
of the private or civil wrong. A crime is
an invasion of public rights

Cont.
2. Remedy

Tort compensatory; criminal law

punishment: exemplary damages in torts?
3. Procedure
Tort suit filed by the claimant/ injured
party; crime the state undertakes
prosecution on behalf of the individual

Cont.
Certain types of conduct may
constitute both crime and tort. e.g a
thief who steals your water commits
both crime and conversion. Torts
protects the individuals interests,
criminal law protects the interest of
the public

Example
X is injured in a car accident caused by the
negligence of Y. The State may prosecute Y
for the offence of driving under the influence
of drink. Although Y may be found guilty and
punished, X will not be compensated for the
injuries suffered, hospital treatment e.t.c.
X may decide to sue Y for the tort of
negligence and if successful he will recover
damages. It might be added that proof of Ys
conviction in the criminal court can now be
used in evidence by X in civil proceedings.

OTHER GENERAL
PRINCIPLES OF TORTIUOS
LIABILITY Lecture 3

The law of torts distinguishes between two elements;

1.Damnum-damage/loss suffered
2.Injuria-injury known to the law
Damnum Sine Injuria
Damnum damage
Injuria injury
The maxim, damnum sine injuria damage without
infringement of any legal right.
Any loss or damage a person suffers does not render
the act or omission leading to such a loss or damage
tortious if there was no infringement of a legal right

Cont.
One must therefore suffer injury of their legal
right together with damage for a tort to arise.
Examples: loss by a trader inflicted by another
trader through competition; when damage is
as a result of a person acting out of necessity
Mayor of Bradford Corporation v. Pickels
The defendant sunk a well on his land thereby
trapping part of the underground water from
his neighbor the plaintiff. The plaintiffs well
consequently dried up.

Cont.
Held: The defendant was not liable
irrespective of whether he had an improper
or malicious motive.
Gloucester Grammar school case (1410)
YB 11
The defendant school master set up a rival
school next to that of the plaintiff. Students
left the plaintiffs school for the defendant
Held: competition can afford no ground for
action whatever damage it may cause.

 Mogul Steamship Co. v. Mcgregor

Gow and Co. (1892) AC 25
B, C and D were ship owners who
shipped tea from one part to another.
They formed a union to drive the
plaintiff, a rival ship owner out of
business. The plaintiff sued for the loss.
Held: damage caused by competition in
trade was not actionable as a tort

Cont.
Such trade practices in Kenya are
controlled by the Restrictive Trade
Practices Monopolies Control Act

Injuria sine damnum

The reverse of damnum sine injuria.
Translates to injury of ones legal right
without damage.
The person whose right is injured can
recover damages even though he
suffered no actual harm.
Applicable in torts actionable per se
(without proof of special damage) e.g
assault, battery, false imprisonment,
slander

Cont
Ashby v White (1703) 103.
A returning officer wrongfully refused to
register a properly tendered vote by the
plaintiff who was a legally qualified voter.
Although the candidate whom he voted
was elected, there was no loss suffered by
rejection of the vote.
The court held that the defendant was
liable because the plaintiff was denied his
legal right to have his vote registered.

Discussion for coming lectures:

Foundations of tortuous
liability

Using the example of the tort of

negligence(mother of all torts), the
following lectures will be based on the
foundations of a tort. These are as
follows:
D-Duty of care
B-Breach of duty
C-Causation by defendant
D-Damages

DUTY OF CARE Lecture

4
Duty of care breach injury (causation) =
tortious liability
What is a duty of care? General test:
Heaven v. Pender (1883) 11 QBD 503
Whenever one person is by circumstances
placed in such a position with regard to
another that everyone of ordinary sense who
did think would at once recognize that if he
did not use ordinary care and skill he
would cause danger or injury to the person
or property of the other, a duty arises to use
ordinary care and skill to avoid such danger.

Cont.
Donoghue v. Stevenson (1932) AC 562
The appellant went with a friend to a caf. The
friend treated her to a ginger beer, which
was in a dark opaque bottle. When the
appellant emptied the rest of the contents in
a bottle from which she had been drinking, it
was seen to contain the remains of a snail.
The appellant suffered shock. She later
contracted gastroenteritis in respect of which
she claimed damages. She sued the
manufacturers. Lord Atkin formulated what
has popularly come to known as the
proximity test.

Cont.
Lord Atkin on the neighbour principle
The rule that you are to love your
neghbour becomes in law, you must
not injure your neghbour;who is my
neghbour?...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 neghbour?

Cont.
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.
Established a broad guide to the circumstances
in which a duty of care may be imposed. (the
duty of the manufacturers of goods to the
eventual users of those goods)

Cont.
Duty of care is a legal question rather than
factual. E.g manufacturers of goods owe a duty
to the consumers, those using the highway owe
a duty to those using it etc.
Donoghue v. Stevenson: categories of
negligence are never closed the changing
nature of negligence
Candler v. Crane Christmas & Co. (1951) 2
KB 164, AT 192: In accordance with changing
social needs and standards, new classes of
person legally bound or entitled to the exercise
of care may from time to time emerge.

Cont.
E.g Barnes v. Hampshire County
Council (1969)3 All ER 746
A local education authority was held
liable when a traffic accident ensued
after letting children out of a school
early before their parents or others
came to fetch them
Buckland v. Guildford Gas Light
and Coke Co (1949) 1 KB 410

Cont.
An electricity authority that had highvoltage wires near a climbable tree was
held liable to the personal representative
of a child who trespassed off a nearby
footpath, climbed the tree and was killed.
In both cases, the defendant ought to
have foreseen and should have taken
steps to prevent the injuries suffered by
the claimant

Modern approaches to the

duty of care Lecture 5
Caparo Industries plc v. Dickman
(1990) 1 all ER 568
A duty of care may be imposed if the
following requirements are satisfied:
1.The claimant must be foreseeable
2.There must be a relationship of proximity
between the claimant and the defendant
3.It must be fair, just and reasonable in the
circumstances for a duty of care to be
imposed

The foreseeable claimant

The defendant will be held subject to a duty of care if
he should have foreseen both the claimant as an
individual (or a member of a certain class)and injury
of the kind that actually occurred.
Haley v. London Electricity Board (1965) AC 778
The defendant dug a trench in the street with statutory
authority. They took some measures to help ensure
the safety of passers-by. These precautions were only
adequate to the needs of passers-by with good eyesight. The claimant, who was blind and alone,
suffered serious injuries when he tripped over a long
hammer left by the defendants.

Cont.
House of Lords held that it was
incumbent on the defendants to take
reasonable care for the safety of all
persons using the highway, including
the blind and the infirm. Just because
the blind people constitute only a
small percentage of the population
does not make them unforeseeable.

Proximity
X should foresee that his careless driving
may result to adverse consequences for
innocent driver Y, who was within Xs
vicinity.
Y a foreseeable claimant; because he is
using the same road as X; his proximity
Goodwill v. British Pregnancy Advisory
Service (1996) 1 WLR 1397
D performed a vasectomy on a man. 3 years
later, he became Cs lover. Knowing that he
had a vasectomy, the couple did not use
contraceptives. C became pregnant.

Cont.
The vasectomy had reversed. C claimed that D
owed her a duty and was negligent in failing to
warn her lover of the possibility that he might
regain his fertility. Claim was struck out.
Held: had the claimant been a wife or partner to
the man and had the doctor known that the
vasectomy was intended to be as much for her
benefit as the patients, a duty might have been
owed to the claimant. No connection between
the doctor and woman insufficient proximate
for a duty to be imposed on the doctor in her
favour.

Just, fair and reasonable

The reasonableness is that of an
ordinary man walking on the
streets of Kibera?

BREACH OF DUTY
Lecture 6
What standards/degree of care should a defendant
exercise to avoid tortious liability?
As a whole, the question of whether the defendant
has broken a duty of care is a mixed one of law and
facts;
However, the standard of care required of the
defendant is an exclusively legal construct and
based on the standard of a hypothetical reasonable
person. If a defendant causes loss or injury but is
able to show that he acted in a away that a
reasonable person would have acted, no liability
will attach.

Cont.
Not an ideal standard; that of an ordinary person
placed
in
the
defendants
position
and
circumstances e.g trade, professional etc; a doctor
will be judged by a fellow doctor, a factory worker
by the standards of a factory worker
If an amateur undertakes an experts work, he
must do it according to the experts standard e.g
an amateur surgeon undertaking an operation on
a patient, he must do so as an expert would have
failure of which he can be held liable for negligent
for any harm occasioned on the patient.

Cont.
Wales v. Cooper (1958)
An amateur lock-smith fixed a lock on a door.
The handle later came off injuring the
plaintiffs hand.
Held: the defendant had acquired the standard
of care required of him. The degree of care and
skill required must be measured not by
competence, which the defendant possessed,
but with reference to the degree of care and
skill, which a reasonable competent carpenter
may be expected to apply to the work in
question.

Cont.
Paris v. Stephney Borough Council (1951) AC
367
A claim in negligence was brought by a workman,
blind in one eye, who had been injured in his one
good eye while working without the use of
goggles.
Held: the duty of an employer towards his servants
is to take reasonable care for the servants safety
in all the circumstances of the case
If A owes B a duty of care, A must attain the
standard of a reasonable person in order to
discharge that duty i.e reasonable care

Cont.
The degree of care which that duty involves
should be proportionate to the degree of
risk involved. The higher the risk of harm,
the higher the caution is required.
Bolton v. Stone (1951) AC 850
Miss Stone was hit by a cricket ball struck
from a cricket ground surrounded by a
fence17 feet. The batsman was 80 yards
away. The ball was only the 6th in about 30
years to be hit out of the ground.

Cont.
Held: there had been no breach of duty
by the club allowing cricket to be played
without taking further precautions.
The chance of harm occurring was so
remote that a reasonable person in
similar position could not be expected
to take additional precautions.
Foreseeability;
standard
of
care;
vulnerability on the part of the
claimant-known to the defendant

CAUSATION Lecture 7
Answers the questions: whether the
defendants wrongful conduct did in fact
cause the claimants damage and whether
the defendant ought to be held responsible
for the full extent of the claimants damage
To be considered in two levels:
1.Causation in fact: how the claimant can
establish that the harm of which he
complains resulted from the defendants
negligent conduct

Cont.
2. Subsequent intervening cause/ a
novus actus interveniens-: may be said
to server the chain of causation such
that the subsequent cause is treated in
law as the only relevant cause of the
claimants injury

CAUSATION IN FACT
THE BUT-FOR TEST
Every occurrence is a combination of several events
Wright v. Lodge (1993) 4 All ER 299
D2 was driving her car at night along a dual carriage
way in the fog. The road was unlit. Her car engine
failed and the car came to a stop in the near-side
lane. A few minutes later, as D2 was trying to restart
the car, an articulated lorry being driven at 60 mph
by D1 crashed into her car virtually destroying it and
seriously injuring a passenger in the back seat. After
hitting the car, the lorry careered across the central
reservation. The lorry felt onto its side blocking the
road. Four vehicles collided with it. One driver died of
his injuries and another was seriously injured.

Cont.
Who caused the additional injuries?
Had D2 not left home? had the road
been lit? had it not been foggy?
Each of these factors is a cause without
which the accident could not have
occurred
Although they may have contributed to
the accident, these are not causes in
law, the law looks at the human actors

Cont.
Yorkshire dale Steamship Co Ltd. V.
Minister of war transport (1942) AC
691
Lord Wright: the choice of the real or
efficient cause from out of the whole
complex of facts must be made by
applying common sense standards
causation is to be understood as the man
in the street, and not as either the scientist
or the metaphysician would understand it.

Cont.
Thus, the law settles upon a basic but-for test of
causation.
The question that the court generally addresses
is
whether,
but-for
the
defendants
action/negligence, the accident would have
occurred.
If in the negative the defendant is held liable
Barnett v. Chelsea and Kensington Hospital
Management Committee (1969) 1 QB 428
A man was sent home from a casualty department
without treatment after complaining of acute
stomach pains. He died later of poisoning.

Cont.
The widows claim against the hospital failed even
though the hospital admitted negligence. The court
found that even if he had been given prompt and
competent medical treatment, he would still have
died as a result of the arsenic that had poisoned him.
Wright v. Lodge: but-for the car drivers negligence
the subsequent pile-up would have occurred.
Held: while she could be held jointly liable with the lorry
driver for the injury that was caused to her passenger
by failing to move her car out of the way, she was
not responsible for the injuries caused to the drivers
of the other cars involved in the second collision. Her
initial negligence was not a legally operative cause of
those injuries. They were solely the responsibility of
the lorry driver who had driven carelessly.

Cont.
Not every action without which an accident
would not have occurred is therefore a relevant
cause in law
In Wright v. Lodge there was at least no
doubting what had been done (or not done) by
the defendants.
Less straightforward cases standard of proof
becomes a relevant consideration it must be
shown that the wrongful act (wrongful conduct
of the defendant) caused the claimant's loss or
injury
Burden of proof remains on the claimant

example
A man claiming that he developed dermatitis because of
contact with substances at work caused by his
employers failure to supply proper protective clothing.
The medical evidence may well reveal that contact with
substances at work was just one possible cause and
may identify several other possible causes.
The issue of whether the claimant has produced
sufficient evidence of causation sufficient evidence
that but-for the defendants conduct, he would not
have suffered injury is a question of law and not fact.
The courts identify the legally operative cause, that of
selecting from among the menu of possible causes the
responsible causes

Concurrent tortious causes

Lecture 8
If two acts result in damage, and either one
would have produced the same damage
e.g two fires a started separately, they
then merge and burn a building
The perpetrator of each act is responsible
for the whole damage, because each act is
a substantial factor in producing the result
Two different ships negligently colliding and
causing injury to a third party those
responsible are each fully liable

Cont.
In Hale Hants and Dorset Motor Services
Ltd. (1947) 2 All ER 628
A
corporation
negligently
allowed
tree
branches to overhang a highway. C was a
passenger in a bus negligently driven by a
servant of D (a bus company) in such a way
that a branch struck the window of the bus
with the result that he was blinded by broken
glasses
Held; both the corporation and the bus
company were each fully liable to the claimant.

New intervening causes:

causation in law
A contingency arises subsequent to the
defendants negligent conduct resulting to
further injury to the claimant
A is knocked by a car, on his way to hospital, he
is hit by a tile on the head from the roof of a
house; the two acts are independent
The falling of the tile a novus actus
interveniens a new intervening act sufficient
to relieve the defendant of further liability for
the consequences of his own act
A novus actus interveniens may take any of the
following form:

Cont.

Nature/ act of God

Claimants conduct
The act of a third party
n/b: the more foreseeable the intervening
cause, the more likely that the court will not
treat it as breaking the chain of causation
Reeves v Metropolitan Police Comr (2000)
1 AC 360
Cs husband hanged himself in his prison cell.
There was no evidence that he had been
diagnosed as suffering from any mental
disorder but he had been identified as a suicide
risk.

Cont.
Held: his suicide did not constitute a novus actus
interveniens. The evidence available to Ds of his emotionally
disturbed state and suicidal tendencies imposed on them a
duty to protect the deceased, effectively from himself.
Suicide was the kind of harm which they should have
contemplated and guarded against. They were thus liable
when it occurred.
b/n: the more involuntary an act is, the less likely are the
courts to treat that conduct as novus actus
Scott v Shepherd (1773) 2 Wm Bl 892
Held: novus actus interveniens was no defence to a man who
first threw a firework into the crowd that the claimant would
have suffered no loss had a third party not picked it up and
thrown it again

Intervening natural
causes
Carslogie Steamship Co. v Royal Norwegian
government (1852) ac 292
D negligently caused Cs ship to be damaged and
require repair. The ship was out of commission for
sometime, later she sailed to the USA. En route, she
suffered storm damage that required further repairs.
C argued that the storm repairs would not have been
necessary had the ship left for the USA on time and
that, since the delay was due to Ds initial
negligence, D must be held liable in respect of the
cost of the further repairs.
Held: the chain of causation had been broken by the
storm since the severity of the storm was so
unforeseeable that it would be improper to regard it
as in any way connected to Ds negligence.

Claimants own conduct

McKew v Holland & Hannens & Cubitts (Scotland) Ltd
91969) 3 All ER 1621
Ds negligence caused injury to Cs leg. C later broke his ankle
attempting, while still suffering from the effects of the first
injury, to descend a steep stair case unaided. Cs imprudent
and unreasonable conduct constituted a fresh and separate
cause of the second injury. D was only liable for the initial
injury
Wieland v Cyril Lord Carpets Ltd. (1969) 3 All ER 1006
The claimant suffered neck injuries and had to wear a collar
in consequence of the defendants negligence. She later fell
downstairs because, as a result of the initial injury and the
neck collar, she could not use her bifocal lenses with her
usual skill. Further injury attributable to the defendants
negligence. There was no unreasonable conduct on the
claimants part that would constitute a novus actus

interveniens

Acts of third parties

Not very straight forward
The Oropesa (1943) P 32
A collision at sea was caused by Ds negligence. In
the ensuing circumstances, the captain od the
damaged vessel ordered a life boat to put to sea
so that salvage arrangements could be made
with D. in traversing the waters between the two
ships, the lifeboat capsized and several crew
members lost including Cs son. While the death
of Cs son was caused by a combination of the
defendants initial negligence with the captains
subsequent decision to board the life-boat in
rough seas, it
was held his decision was
reasonable in the circumstances.

Cont.
Even where a conduct of the thrid party is necessitated by
the initial negligence of the defendant, it is still possible
that the subsequent act will constitute a novus actus
Rahman v Arearose Ltd
C had been assaulted by two youths. The assault left C
needing surgery. The surgery that followed was
undertaken negligently by D, and as a result C was left
blind in one eye. Partly in response to the blindness and
partly in consequence of the assault C also suffered a
psychiatric response.
Held: the blindness was exclusively attributable to the
negligent surgery even though that surgery had been
necessitated by the original torts of the two youths. On
the other hand, the careless surgery was only part of the
cause of the psychiatric harm and the youths remained
partly responsible for that.

Defendants supervening
act
Generally, a defendant cannot invoke his/her
own supervening tortious conduct as evidence
to a break in the chain of causation
Chester v Afshar question: in certain
circumstances, can a subsequent non-tortious
act on the part of the defendant be taken to
be a novus actus interveniens a doctor failed
to disclose the risk attending to a surgery
Held: the negligent failure to warn the claimant
did not increase the risk associated with the
surgery. The non-negligent surgery was
unconnected to and in no way flowed from ,
the tortious failure to warn.