Law of Torts in Kenya

5/19/2018 Law of Torts in Kenya

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A Brief Outline of Torts Law in Kenya

@Corporate Infolink Consultancy

Charles Mwaura Kamau

A Brief Outline of the Law of

Tort in Kenya

By

Charles Mwaura Kamau LLB (Hons) Advocate High Courtof Kenya

[email protected]
mailto:[email protected]:[email protected]


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Purposes of tort law:

(1) to provide a peaceful means

for adjusting the rights of parties

who might otherwise take the

law into their own hands;

(2) to deter wrongful action;

(3) to encourage socially

responsible behavior; and,

(4) to restore injured parties to

their original condition, insofar

as the law can do this, by

compensating them for their

injury.

Tort embraces subjects such as:

Negligence Nuisance

Defamation; either Libel

(written) or Slander (spoken)

Trespass which can be: to land

(i.e. entering on someones land

without permission): to the

person (i.e. assault, battery orfalse imprisonment), or to goods

(i.e. conversion, detention).

Law of Torts

There are two types of civil wrongs, and we looked at the first of these - i.e. those

arising from a breach of contract. The second type of civil wrong arises from the

breach of a duty fixed by law, and owed to people

generally and is called a Tort.

Like a breach of contract, the breach of a legal duty is

remedied by a civil action. The damages sought would be

unliquidated damages, i.e. damages, the amount of

which would be fixed by the court (in court proceedings

this is called an Unspecified amount claim).

The word Tort is an unusual one and conveys little

meaning to the layperson. It has two root sources. One is

from Norman French, meaning wrong, which in turn

springs from the Latin Tortus meaning twisted or

wrung.

A Tort signifies a wrong recognised by law. It can be

differentiated from a crime (which is also a wrong in

law) as follows:The booklet will introduce you to:

the nature of tortuous liability

The general defences available to a claim in Tort

(i.e. those defences which will completely defeat

such a claim)

The persons who can sue and be sued in Tort,

including: Vicarious liability and Occupiers

Liability.

specific torts, i.e. Negligence, Nuisance (both

Public and Private), Trespass etc

The remedies that are available if successful.

Schools of thought

General principle of liability theory


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This school of thought argues that all harm should be actionable in the absence of

just cause or excuse.

NOTE

Under this theory the law of tort would be forever growing and no cause of action

should be refused because it is new or novel.

Closed Law of Torts theory

The theory argues that the law should be a law of

specific, existing, torts (e.g. negligence, etc.), and

that no new torts should be created by the Courts- only by statute.

The basic pattern of Tort

As a general principle, a claimant will only

succeed in tort if he can prove:

(a) That the defendant has infringed his legal rights (i.e. has committed a tort), and

(b) As a result he has suffered damage.

The paradigm tort consists of an act or omission by the defendant which causes

damage to the claimant. The damage must be caused by the fault of the defendant

and must be a kind of harm recognised as attracting legal liability.

This model can be represented:

act (or omission) + causation + fault + protected interest + damage = liability.

Example:

A drives his car carelessly with the result

that Bis injured and sustains personal

injuries. The act isAdriving the vehicle.

This act has caused damage to B. The

damage was as a result of As carelessness,

i.e. his fault. The injury suffered by B,

personal injury, is recognised by law as

attracting liability.Awill be liable to Bin

the tort of negligence and B will be able to

recover damages.

For a successful system of

Tort law to exist, it is

necessary to have a

functioning insurancesystem.Insurancecompanies are effectively

the a masters.

Only a very small per cent of all tort

claims made go to court and far fewer

go on appeal and appear in the law

reports.

Thus, most of the rules of law stated in

law text- book s may bear little

resemblance to the practice of tort

law, particularly in the area of

personal injuries.


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In tort, it is usually necessary for a claimant to establish both act or omission and

damages to be able to succeed.

Exceptions

There are certain torts which do not require fault. These are known as torts of strict

liability.

Under strict liability one has a duty not to injure. It does not matter whether the

injury is caused negligently or not, whichever way you cause injury you will be liable.

In some cases the act or omission of the defendant may have caused damage to the

claimant but the claimant may have no action as the interest affected may not be oneprotected by law. This is known as damnum sine injuriaor harm without legal

wrong.

Say for example A opens a shop that sells the same goods as B in the same street, and

then A reduces the price of his goods in order to drive B out of business. B will have

no legal recourse. Even though he has caused damage to Bs business, such interest

may not be protected by law.

There are also cases where conduct is actionable even though no damage has been

caused. This is known as injuria sine damnand where a tort is actionable without

proof of damage it is said to be actionableper se.

An example would be the tort of trespass; thus, if X trespasses intoYs property he

might be liable even though no damage was caused.

The following interests are protected:

Wrongs to persons:

1. Wrongs affecting safety and freedom of the person: Assault, battery, false

imprisonment.

2. Wrongs affecting personal relations in the family: Seduction, enticing away of

servants.

3. Wrongs affecting reputation: Slander and libel.

4. Wrongs affecting estate generally: Deceit, Malicious prosecution, conspiracy.

Wrongs to Property:

This includes torts such as trespass to goods and conversion. Where clothing or a car

is damaged in a negligently caused accident, then a person may have an action for

damages in negligence.


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In the cause of studying cases in

Torts you will encounter

concepts such as duty of care,

remoteness of damages, fault,

etc. When cases are analysed in

these terms and there is held to

be no liability as there was no

duty or the damage was too

remote, or the defendant was not

at fault, this is referred to as

formal conceptualism or black

letter law. What is frequently

concealed in this terminology is

the policy reason behind the

decision.

Although as a lawyer you must

know the relevant rules of law,

to have a deeper understanding

of how law works in practice you

must have a clear conception of

the policy issues which shape

legal decisions.

2. Interference with rights analogous to property, such as private franchises, patents,

copyrights.

Economic interests:

Generally this are not protected under torts.

States of mind in Torts

Most torts require at least one of the following states of

mind: malice, intention and negligence.

Malice

In law, the word malice has two meanings:

1. The intentional doing of an act without just cause or

excuse.

2. The doing of an act with some improper motive. It

can be seen, therefore, that it has a different meaning

in law than that which we usually give it. (i.e. ill will

or the desire to do harm)

NOTE

In law, the word malice essentially means the

intention to commit an act, and this applies to the law

of tort as well.

With regard to the law of tort, the defendants

intentions (generally speaking) are irrelevant.

Intention

ProssersHandbook of the Law of Tortssays that:

Intention in tort law is not necessarily a hostile intent, or a desire to do any

harm. Rather it is an intent to bring about a result which will invade the

interests of another in a way that the law will not sanction.

The meaning of intention varies according to the context in which it is used.

Intention is relevant in three groups of torts:


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1. Torts derived from the writ of trespass. Here intention means where a person

desires to produce a result forbidden by law and where they foresee it and carry on

regardless of the consequences.

2. In cases of fraud and injurious falsehood. In these torts the defendant must make a

statement which they know is untrue.

3 In cases of conspiracy. If A and B combine

together and act to cause injury to C, then C will

have an action provided that they can prove that

their primary motive was to cause them damage.

Negligence

Negligence in tort has several meanings. It may

refer to the tort of negligenceor it may refer to

careless behaviour.

In the careless behaviour sense the standard set

is an objective one. The court will apply the test

of what a reasonable manwould have done in

the defendants position.

Causation

A connection must be shown between the

defendants breach of duty and the damage

suffered by the plaintiff.

We say that a persons act caused harm if the

harm would not have occurred had the person

not committed the act. That is X is a cause of Y if

Y would not have occurred but for X.

Question

What should be the main objectives of Tort

Laws?

a) Compensation

b) Deterrence

c) Punitive

Pick your option (s) and Support your answer with cases and academic treatises.

The setting of the

standard in negligence

depends on what the

objective of the

negligence formula

is. If the objective is to

compensate the claimant

for their loss, then it is

clearly in the claimants

interests to set thestandard as high as

possible. But if the

objective is to deter the

defendant, then it is

counter-productive to set

a standard

which is too high to be

attainable.


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A very important case on the

question of whether a person is

properly acting within the

course of his employment is

Harrison -v- Michelin Tyre Co.

Ltd (1985), which defined the

test of whether an employer was

liable or not in the following

way:

Whether a reasonable manwould say either that the

employee's act was part and

parcel of his employment even

though it was unauthorised and

prohibited by the employer (in

which case the employer was

liable), or that it was so

divergent from his employment

as to be plainly alien to his

employment, and wholly

disguisable from it, (in which

case the employer was not

liable.).

... under a contract of service, a

man is employed as part of the

business; whereas under a

contract for services, his work,

although done for the business, isnot integrated into it but is only

necessary to it, and it depends on

whether the person is part and

parcel of the organisation....

Lord Denning MR

Who is liable in Tort?

The person who actually commits the tort (called a

tortfeasor) is the person who is always liable.When

they are many they are known asjoint tortfeasors.

There are, however, some special considerations that

are applicable to certain entities and persons such as,

the state, Minors, Husband and Wife, Judicialimmunity, Executors etc.

A detailed examination of these is beyond the scope of

this booklet.

Vicarious Liability:

Under Kenyan law the expression vicarious liability

means the liability of a person for the wrongdoing of

another, even if the first person has done nothing

wrong.

This does not mean that one person is deemed to have

done the wrongful act. It means the person is liable in

law for the wrongful action of the other.

What is required is that the first person should stand in

particular relationship to the other person and that the

second personstort should be referable in a certain

manner to that relation.

The commonest of these relationships in Law is theliability of a master for the torts of his servants.

Vicarious liability generally arises from a contract

service:

(a) Employer and independent contractor, and

(b) Employer and employee (master/servant)

Master-Servant Relationship

Who is a servant?


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In Limpus --v- London General

Ominibus Co. (1862), a bus

driver, whilst racing another

(rival) bus for customers, caused

an accident. His employers were

held liable because he was doing

what he was employed to do, i.e.

driving a bus, although in an

improper way. Contrast,

however, Beard -v- London

General Omnibus Co. (1900)

where a bus conductor

attempted to turn a bus around

at the end of its route and in

doing so he caused an accident.

His employers were not

vicariously liable since he was

employed as a conductor (only

to collect fares) and not to drive

buses. An act of violence will

usually take the employee

outside the scope of employment

and the employer will not be

liable. In Warren --v- Henlys

(1948)a petrol pump attendant

assaulted a customer during an

argument over payment for

petrol. It was held that the

employee was personally liable,

but his employers were not

vicariously liable. Whereas the

employee was doing his job, it

was not within the scope of his

employment to assault

customers

Since vicarious liability under Kenya law generally

arises from a contract of service (servant) not a

contract of services (independent contractor) it is

important to determine the indicia if a contract of

service.

In an often cited statement in Short v. J & W

Henderson LtdLord Thankkerton said that there are

four indications of a contract of service;

a) The masters power of selection of is servant

b) The payment of wages or other remuneration

c) The masters right to control the method of doing the

work, and

d) The masters right of suspension

This list has been found helpful in determining

whether a master-servant relationship exists but it is

not conclusive. It is not possible to compile an

exhaustive list of all the relevant considerations. The

court stated in Market Investigation Ltd v. Minister of

Social Security (1969 ) per Cooke J:

The most that can be said is that control will no doubt

always have to be considered, although it can no

longer be regarded as the sole determining factor;

and that factors which may of importance are such

matters as whether he hires his own equipment,

whether he is own helpers, what degree of financial

risk he takes, what degree of responsibility forinvestment and management he has, and whether and

how far he has an opportunity of profiting from sound

management in the performance of his task.

As we have seen, a person is a servant if his employer

retains a right to control not only the work he does, but

also the way in which he does it. The test is the right of

control, not how much control was in fact exercised.

This is the traditional test, but difficulties arise when

applying it to professional persons such as doctors. In such cases it may be necessaryto consider such criteria as payment of salaries and the power of dismissal.


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The rule is that a master is vicariously liable for the torts of his servants that are

committed within the course of his employment. The tortuous act must be a wrongful

way of doing what the employee is employed to do.

Employer and independent contractor

Generally speaking, we say that an employer is vicariously liable for the torts

committed by its employees (provided that they are committed during the course of

his employment) but that he is not generally vicariously liable for the torts

committed by an independent contractor hired by him

One of the difficulties, however, is to distinguish between employees and

independent contractors, because, quite often, they overlap and the position is notclear. In such a case, it is up to the courts to define the relationship. We do have some

basic tests that we can apply, however:

Tests to distinguish between employees and Independent contractors:

The old test for determining an employee was control i.e. does the employer control

when and how the person carries out his tasks. Nowadays, however, a number of

additional factors are taken into account. Thus the extent to which the employer

controls the details of the work carried out by a person is now considered alongside

tests relating to: who supplies the tools and equipment, on whose premises the workis carried out, and what the expressed intention of the parties is.

Decisions stress the difference between the contract of service(employees) and the

'contract for services' (independent contractor).

Example of the particulars of the breach of statutory duty:

a) failing to make or keep safe the respondent's place of work;

b) failing to provide or maintain proper apparatus at the place of work;

c) employing the respondent without instructing him on the dangers likely to arise in

connection with the place of work or without providing any or adequate supervision;

d) failing to provide the respondent with proper skills; and

c) failing to provide a safe system of work.

In Kenya Tea Development Authority Ltd -VS- Andrew Mokaya, HCCA

No. 174 of 2006at Kisii Justice Makhandia (as he then was) made reference to

what the author in Winfield & Julowicz in Tort (13th Edition) has said at page 203:


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At common law the employer's duty is a duty of care and it follows that the burden

of proving negligence rests with the plaintiff workman throughout the case. It has

even been said that if he alleges a failure to provide a reasonably safe system of

working, the plaintiff must plead and therefore prove what the proper system was

and in what relevant aspects it was not observed. It is true that the severity of this

particular burden has somewhat been reduced but it remains clear that for a

workman merely to prove the circumstances of his accident will not normally be

sufficient.

While an employer is under a duty to take reasonable care for the safety of his

employees so as not to expose them to unnecessary risk, it has to be borne in mind

that breach of this duty must be proved by showing that the employer was carelessand therefore negligent regard being had to the nature of work (Williamson Tea

(K) Ltd -VS- Raymond Kipkemoi Arap Korir, HCCA No. 33 of 2009 at

Kericho). The scope of the duty and the standard to be observed cannot be so wide as

to encompass situations that cannot be reasonably foreseen or contemplated.

In Statpack Industries vs James Mbithi Munyao Nairobi HC Civil Appeal

No.152 of 2003 (unreported)Visram J, held at page 7 of his judgment that;

Coming now to the more important issue of causation, it is trite law that the

burden of proof of any fact or allegation is on the plaintiff. He must prove a causal

link between someones negligence and his injury. The Plaintiff must adduce

evidence from which, on a balance of probability, a connection between the two may

be drawn. Not every injury is necessarily as a result of someones negligence. An

injury per se is not sufficient to hold someone liable.

Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the

Court of Appeal held inter alia that:-

On a first appeal from the High Court, the Court of Appeal should reconsider the

evidence, evaluate it itself and draw its own conclusions though it should always bear

in mind that it has neither seen nor heard the witnesses and should make due

allowance in that respect. Secondly that the responsibility of the court is to rule on

the evidence on record and not to introduce extraneous matters not dealt with by the

parties in the evidence

In Pepco Construction Company Limited v Carter & Sons Limited Nairobi

CA No. 80 of 1979 (UR) wherein the Court of Appeal made observation that:-

A notice of appeal is what gives this court jurisdiction in any appeal. It is a primary

document in terms of rule 85(1) of the Rules. A record of Appeal must contain a valid

copy of the notice of appeal. The omission to include a valid copy renders the appealincompetent.; the case of Joseph Limo & 86 others versus Ann merz Civil


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Occupiers Liability:

An occupier is a person who has

some degree of control over the

premises. He need not

necessarily be the owner. It is

also possible for there to be more

than one occupier.

In Wheat -v- E. Lacon & Co. Ltd.

(1966)the defendants, who

were the owners of a public

house, were held to be the

occupiers of the premises in

addition to the manager and his

wife who were in actual

occupation.

The test of occupation is:

Whether a person has some

degree of control arising from

their presence or activity on the

premises.

Premises can include:: Any

fixed or moveable structure,

including any vessel, vehicle or

aircraft this includes land,

buildings and anything erected

on that land whether they are

fixed or movable structuresand

vehicles, including ships and

aeroplanes.

'Visitors' are persons lawfully on

the premises.

Application No.295 of 1998 Omollo JA made

observation that:-A notice of appeal is the document

which initiates an appeal it indicates who is aggrieved

by the decision or part of the decision of the Superior

Court and is or are therefore appealing in the case of

Parsi Anjumani versus Mushin Abdulkarim Ali Civil

Application Nai 328 of 1998 (UR) there was

observation that:-a notice of appeal isa primary

document within the meaning of rule 85(1) of the rules

; and lastly Nuru Ibrahim Amrudin versus Amir

Mohamed Amir Civil Appeal No. 23 of 1998 (UR) the

Court of Appeal ruled that an appeal can only beagainst a decree or an order not against a Judgment

or ruling

Occupiers liability

This is the liability of an occupier of premises for

damage a done to visitors to the premises.

Under Kenya laws:

an occupier of premises owes the same duty, the

common duty of care, to all his visitors, except in so far

as he is free to and does extend, restrict, modify or

exclude his duty to any visitor or visitors by agreement

or otherwise.

Occupiers liability at common law

At common law the duties of an occupier were cast in a

descending scale to four different kinds of persons. For

example:

a) The highest duty of care was owed by the occupier to

one who entered in pursuance of a contract with him

e.g. a guest in a hotel. In that case there was an implied

warranty that the premises were as safe as reasonable

care and skill could make them.

b) A lower duty was owed to the invitee i.e. a person

who without any contract entered on business of


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interest both to himself and the occupier e.g. a customer coming into a shop to view

the wares he was entitled to expect that the occupier should prevent damage from

unusual danger of which knew or ought to have known.

c) Lower still was the duty of the licensee i.e. a person who entered with the

occupiers express or implied permission but without any community of interest with

the occupier; the occupiers duty towards him was to warn him of any concealed

danger or trap of which he actually knew.

d) Finally, there was the trespasser to whom there was owed only a duty to abstain

from deliberate or reckless injury.

Occupiers liability deals with the liability of an occupier of premises and extends toimmovable property as open land house, railway stations and bridges as well as

movable structures like ships, gangways or even vehicles although lawyers prefer to

treat injury in the latter as falling with common law negligence.

Under common law lawful visitors who did not fall under the above classifications of

contractual entrants, invitees or licensees were not clearly covered and accidents

arising from the premises and affecting such person were commonly governed by the

general law of negligence.

The position of the common law was thought to be unsatisfactory. As lord Denningput it in Slatter v. Clay Cross Co.Ltd

If a landowner is driving his car down his private drive and meets someone

lawfully walking upon it then his is under a duty to take reasonable care so as not

to injure the walker; and his duty is the same no matter whether it is his gardener

coming up with his plants, a tradesman delivering his goods, a friend coming to

tea, or a flag seller seeking a charitable gift

The law was thus referred to the law reform committee in 1952 as a result of whose

report the Occupiers Liability Act 1957 was passed.

Modern Law on Occupiers Liability

Occupiers Liability Act(CHAPTER 34 of the LAWS of Kenya) is the governing

act in this area.

Question:

Write a 300 words essay on Occupiers liability to trespassers under Kenyan law.

Your answer must be supported by appropriate Kenyan case law. Remember foreign

case law only have a persuasive as opposed to a binding value.


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Rule Rylands v Fletcher

Blackburn J defined the rule as:

A person who, for his own

purposes, brings onto land and

keeps there anything likely to do

mischief if it escapes, must do so

at his peril, and, if he does not do

so, he is prima facie answerable

for all damage which is the

natural consequence of its

escape

Prerequisites of the operation of

the rule in Rylands v. Fletcher:

1. the defendant made a non-

natural or special use of his

land;

2. the defendant brought onto

his land something that was

likely to do mischief if it escaped;

3. the substance in question in

fact escaped; and

4. damage was caused to theplaintiffs property as a result of

the escape.

Strict liability

Strict liability means liability without fault. Most strict

liability torts are created by Acts of Parliament. For

example Safety at work laws created to protect

employees.

Strict liability under Kenya law is the imposition of

liability without fault for damages on the defendant.

This is different from negligence as the burden of proof

is not placed on the plaintiff to prove that the damageswere a result of the defendants negligence, only that

damages occurred and the defendant is responsible.

In strict liability, there is the assumption that the

manufacturer or supplier was aware of the defect

before it reached the plaintiff.

How does a Plaintiff Claim Strict Liability?

Under Kenya laws, for a plaintiff to make a claim based

on manufacturing defects, the following must be true:

1. The defendant is the manufacturer of the

defective product

2. The product contained defects when purchased

by the plaintiff

3. The defect existed when the defendant sold the

product

The defect was responsible for injury to the

plaintiff.The injury sustained by the plaintiff must be

foreseeable by the manufacturer, within reason.

Additionally damages may be awarded if the plaintiff

can prove that the defendant was aware of the defect

when the product was sold to the consumer.

What are the Responsibilities of Sellers and Bailors?


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Factors to consider

An analogy can be drawn

between Ultra-hazardous

activity andabnormally

dangerousactivity in USA

The courts in US have held that

the following factors can be

taken into account in

determining whether an activity

is abnormally dangerous

(a) there is a high degree of risk

of some harm to others;

(b) the harm that results is likely

to be serious;

(c) the risk cannot be eliminated

by the exercise of reasonable

care;

(d) the activity is not common;

(e) the activity is not

appropriate for the place where

it is carried on; and

(f) the danger outweighs the

activitys value to the

community.

NOTE

Probably the single most

important factor is that the

activity be one which cannot be

carried out safely, even with the

exercise of reasonable care.

Under Kenya laws, the lending of personal property to

another with the agreement to return the property at a

later time is called bailment. The owner is known as

the bailor and the recipient of the property is the

bailee.

If there are inherent dangers in the use of the

property, the bailor is responsible for warning the

bailee of those dangers. Therefore, the bailor is liable

for negligence if appropriate notice is not given to the

bailee. Similarly, the seller assumes responsibility from

the manufacturer to warn the consumer about thedangers of the product.

How does Strict Liability Relate to Ultra

Hazardous Activity?

The ultra-hazardous activity doctrine states that

certain activities are create a serious risk of danger and

that liability must be placed on persons engaging in

this activity regardless of fault.

In this legal definition the plaintiff under Kenya laws

must have engaged in an ultra-hazardous activity

which caused the plaintiff to suffer injury, loss or

damage and the defendant should have recognized the

likelihood or damage to the plaintiff during the course

of this activity. Some examples of ultra-hazardous

activity include demolition and the handling of

dangerous animals.


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Defences to a tort

There are several different defences in tort law which may excuse a defendant of

wrongdoing and prevent him from being held liable for damages to the plaintiff.

The word defence bears several meanings in the tort context. First, it is sometimes

used to refer to any argument that persuades the court to find that the defendant is

not liable. So understood, the word defence encompasses absent element

defences.Absent element defences are denials by the defendant of an element of the

tort in which the plaintiff sues. For example, when a defendant denies that he is the

tortfeasor, denies that his impugned act was voluntary, denies that he was at fault

when proof of fault is required, or denies that the plaintiff suffered damage whendamage is the gist of the tort in which the plaintiff sues.

In a second and stricter sense, the word defence refers only to rules that, when

enlivened, result in a verdict for the defendant even if all of the ingredients of the tort

that the plaintiff contends was committed against him are present. A defendant

invokes a defence within this meaning of the word when he argues along the

following line: Even if I committed a tort, judgment should nevertheless be entered

in my favour because of rule so and so. Absent element defences do not qualify as

defences when the word defence is used in this way.

Thirdly, the word defence is used to encompass principles that limit the relief to

which a plaintiff is entitled. An example is the defence of contributory negligence.

Fourthly, the term defence is deployed to refer to rules in respect of which the

defendant bears the onus of proof.

First-line defence

Example

I did not commit the tort of negligence because the claimant has failed to prove

that I did not act as a reasonable person. I was reasonable because...

Once the claimant has established the basic requirements of the tort then the

defendant is given an opportunity to argue a general defence.

General defences under Kenya law can be classified as:

The defence of Consent

When plaintiff is the wrongdoer


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Defence of Consent

InSmith -v- Baker

(1891)the claimant, who

worked in a quarry, was

injured when a stone fell

from a crane which his

employers negligently

used to swing stones above

his head. When sued, his

employers pleaded the

defence of volenti. They

were able to show that theclaimant knew of the risk

of injury, but they could

not show that he freely

consented to run that risk.

-He may have continued to

work under the crane

through fear of losing his

job. The claimants action,

therefore, succeeded.

Inevitable Accident

Act of God

Act in relation to Private Defence

Necessity

Act in respect to Statutory Authority

The defence of Consent:

This defence is based on the principle of Volenti non

fit Injuria. Latin for: No wrong is done to one who

consents.

The general rule is that a person, who has voluntarily

agreed to suffer harm, cannot claim damages for such

harm. This consent to suffer harm can be either

express or implied. However, such consent must begiven freely and not obtained by fraud or any other

illegal means.

The Meaning of 'Consent in the law of Tort:

Consent may result from a specific agreement to run a

risk or it can be implied from the claimant's conduct.

Consent can either be in respect of an intentional act,

which would otherwise be tortuous, or it can be the

consent to run the risk of accidental injury.

Mere knowledge does not necessarily imply consent.

The claimant must both appreciate the nature of the risk of injury and consent to run

that risk.


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Plaintiff as wrongdoer

Lord Mansfield in Holman

v Johnson (1775) 1 Cowp

341, said that no court

will lend its aid to a man

who founds his cause of

action upon an immoral or

an illegal act. Bingham LJ

inSaunders v Edwards

[1987] 1 WLR 1116

overlaid the principle with

the following gloss:

Where the claimants

action in truth arises ex

turpi causa he is likely to

fail. Where the claimant

has suffered a genuinewrong to which the

allegedly unlawful conduct

is incidental, he is likely to

succeed.

See also English Cases :

Clunis v Camden and

Islington Health

Authority [1998] QB 978,

987. AndStandard

Chartered Bank v

Pakistan National

Shipping Corporation

and others (No 2)

Defence of illegality on the part of plaintiff

This defence is based on the maxim Ex turpi causa

non oritur actiowhich means no action rises froman

immoral cause. In other words if one knowingly

engages in an illegal activity he will not be allowed to

profit from it.

This means that, if the action of the plaintiff was

unlawful itself, then the defendant might raise that fact

as a general defence.

NOTE

Public policy requires that the Courts will not lend

their aid to a man who founds his action upon an

immoral or illegal act.

However, it remains difficult to identify when a claimin tort will be barred on the basis of the defence of

illegality: part of the difficulty stems from the wide

variety of factual situations in which the illegal conduct

may arise.

The Defence of Inevitable Accident

An inevitable accident is an occurrence not avoidable

by any precaution a reasonable person would be

expected to take. The person invoking the defence

must show that something happened over which he or

she had no control, and the effect of which could not

have been prevented by using great skill and care. He

or she must show either the cause of the accident and

the inevitability of its result, or all the possible causes


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A plea of inevitable accident in negligence

cases is merely a repetition of the general rule

that an actor is not liable for harm unless the

harm was caused by the actors failure to

exercise reasonable care.it therefore followsthat: this defence cannot be raised in torts of

strict liabilit .

Inevitable Accident

A plaintiff seeking to

undermine or defeat a

defendants reliance on the

defence of inevitable

accident must challenge

with evidence and

argument the

defendants explanation of

how the accident, collision

or mishap occurred

without his negligence.

InStanley -v- Powell

(1891)the claimant was

injured by a shot fired by

the defendant whilst on an

organised shoot. The shot

was aimed at pheasants

but glanced off a tree

before hitting the

claimant.

See Also:

Holmes v Mather

(1875) LR 10 Ex 261

(Exch Ch); Stanley v

Powell [1891] 1 QB 86

(QBD).

and the inevitability of the result of each.

Thus, the defence asserts that where an accident is

purely inevitable, and is not caused by the fault of

either party, the loss lies where it falls.

NOTE

According to the authorities, once the plaintiff

establishes a prima facie case of negligence, the onus

will shift to the defendant to prove inevitable accident.

In so doing, the defendant is required to show how the

accident took place and that the accident could not

have been

avoided by

the

exercise of

thegreatest

care and

skill.

A defendant may thus escape liability by showing one

of two things:

(i) prove the actual cause of what happened and that he

was not responsible for it, or

(ii) prove all the possible causes of the accident and

that he was not responsible for any of them.

In Road Accidents some of the factors that may be

taken into account include: road conditions, weather,

speed, the condition of the vehicle, the intensity of the

vehicles headlights, the drivers experience and his/her familiarity with the roadway,


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Act of God

In modern jurisdictions, "act of

God" is often broadened by

statute to include all natural

phenomena whose effects could

not be prevented by the exercise

of reasonable care and foresight.

Blacks Law Dictionary defines

an act of God as An act

occasioned exclusively by

violence of nature without the

interference of any human

agency. A natural necessity

proceeding from physical causes

alone without the intervention of

man. It is an accident which

could not have been occasionedby human agency but proceeded

from physical causes alone.

In Nichols --v- Marsland

(1876)an extraordinary

rainfall caused the banks of

some artificial lakes on the

defendant's property to burst

and the resultant floodwater

carried away a number of

bridges owned by the county

council. The escape of water

was an act of God.

the drivers reaction to the risk presented, any evasive action taken, other traffic on

the roadway, and the physical and mental condition ofthe driver (ie. fatigued, distracted, dizzy, experiencing a

medical crisis or condition, etc.).

The Defence of an Act of God

The defence of act of God can negate the fault element

of the tort of negligence

on the ground that the damage

was due to an act of God.

The defence covers extraordinarily major intervention,

something which is a consequence of furious working

of natural forces.

An Act of God must not be within the possibility of

foresight and preventability of a reasonable human

being.

Difference between an Act of God and

Inevitable Accident:

1. An accident without the involvement of humans is an

act of God. An accident which humans cant ordinarily

avoid is inevitable accident.

2. In case of inevitable accidents, the actions may be a

result of human activities. Hence, even if one knows

the occurrence is going to happen, one still cant avoid

it. However there is no room or possibility of human

foresight in case of an Act of God orVis Major.


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Some other defences under Kenya law:

Necessity

This is in respect of intentional damage caused in order to prevent even greater

damage or destruction, or in defence of the realm.

Therefore, if damage is caused to avoid a greater damage, it becomes a good defence.

It includes, for example, destroying properties in the path of a fire to prevent the

spread of the fire. In Cope -v- Sharpe (1912) a fire broke out on the claimants

land, and the defendant, a gamekeeper on adjoining land,

entered the claimants land

and burnt some of the heather to form a firebreak to prevent the fire spreading to his

employers land. When sued for trespass his defence of necessity succeeded since

there was a real threat of fire and the defendant had acted reasonably.

Act in respect to Statutory Authority

Where a statute has expressly authorised the thing to be done, or the thing done is a

necessary consequence of what is authorised by statute then there is a completedefence to a tort, provided the defendant proves that he used all proper care.

InVaughan -v-Taff Vale Railway(1860), the defendants, who were authorised to

operate under Statute, were found not liable for fires caused to the claimants land

caused by sparks from the train engines, since the defendants were obliged to operate

the railway and had done so with proper care.

NOTE

Where the damage is not a necessary consequence of what is authorised by Statute

then this cannot give rise to the defence.

Mistake

There are two types of mistakes

a) Mistake of Law.

Mistake of law is no defence and ignorance of law, no excuse


21/41




b) Mistake of Fact.

The general rule is that mistake is no defence in tort. There are, however, three

exceptions provided the defendant acted reasonably in making the mistake:

(i) False imprisonment -where for example a policeman without a warrant arrests

someone who has not committed a crime when he reasonably believes that they have.

(ii) Malicious prosecution - where the defendant was under the reasonable mistaken

belief that the claimant had committed a crime.

(iii)Defamation - where the defamation was unintentional.When mistake of fact is a

defense.


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Specific Torts

There are a number of different torts protecting different rights. The more common

torts are:

Torts affecting the person:

Assault: a menacing act constituting a threat of violence by one person against

another (this is also a crime)

Battery: any unauthorised interference by one person with the person of another,

however slight (this is also a crime).

False imprisonment: physical restraint of a person which is not authorised by law.

Knowledge that one is restrained is not necessary to constitute the tort (this can also

be a crime).

Negligence: breach of a duty of care owed to a person causing foreseeable injury to

the person. This is the first of the Torts that we shall study. The above torts are

classified, in law, as trespass against the person.

Torts affecting property:

Private Nuisance: an indirect interference with another's use or enjoyment of land.Owed to the occupier of land, not generally to an absentee owner unless future

occupation is affected, e.g. by structural damage. Includes interference through

smells, vibrations, and penetration by roots, etc. This is another of the Torts that we

shall be studying

Trespass to land: direct interference with a person's rights of possession to land.

Includes entry on to property and placing things on property. The duty is owed to the

possessor even if they are not the owner. The tort is actionable per se. We shall be

studying this Tort

Trespass to goods: a wrongful interference with goods in the possession of another,

e.g. touching, marking or taking away (this can also constitute a crime, e.g. theft).

Conversion: an act in relation to goods, which constitutes an unjustifiable denial of

the title of the true owner. The wrong is against the true owner. Includes taking away

goods plus a denial that the person from whom they have been taken is the owner.

Sale of goods, which are not ones own,

constitutes conversion against the true owner (can also be a crime).


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Negligence: a breach of a duty of care in respect of the property of another causing

foreseeable harm.

Strict liability: allowing things stored or collected on land which are natural to the

land to escape and cause damage to the property of another e.g. water escaping from

a reservoir. -Rylands -v- Fletcher (1868).

Occupiers liability: the duty of care owed by occupiers of land towards thosewho

lawfully enter the land or even if they enter the land as a trespasser (another of the

torts that we will be learning).

Torts affecting economic rights:

Interference with contract: Without lawful justification persuading a person to

break a contract with another, or acting in such a way as prevent its performance.

Intimidation: making a threat intended to cause another to act or refrain from

acting in a certain way to that person's detriment or that of a third party.

Passing off: representing one's goods or services to be those of another, causing loss

of trade or damage to business reputation. Trading in a name similar to that of

another like business to the confusion of the public.

Deceit: making a false statement with intent to deceive, intending another to actupon it to their detriment (this can also be a crime)

Negligent misstatement: breach of duty of care in giving advice to a person to whom

one owes a duty of care causing them damage of foreseeable kind including purely

economic loss (we shall be covering this in connection with the Tort of negligence

generally).

Torts affecting rights generally

Public nuisance: behaviour which materially affects the reasonable comfort and

convenience of a class of people who come within the sphere or neighbourhood of its

operation, e.g. carrying on an offensive trade or obstructing the highway. A private

individual can only sue if he or she has suffered special damage over and above that

suffered generally, otherwise the Attorney General on behalf of the public must bring

the action.

Conspiracy: a combination of two or more persons planning together to injure a

third by unlawful means.


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Charles Mwaura KamauDefinition:

Battery is:

1) intentional, (2) harmful or

offensive (3) contact with the (4)

plaintiff. (Example: A

intentionally punches B in the

nose. A has committed battery.)

Intent

It is not necessary that A desires

to harm B. A has the necessary

intent for battery if it is the case

either that: (1) A intended to

cause a harmful or offensive

bodily contact; or (2) A intended

to cause an imminent

apprehension on Bs part of a

harmful or offensive bodily

contact.

Example 1: If A shoots at B,

intending to hit him with a bullet

then A has the necessary intent

for battery.

Example 2: If A shoots at B,

intending to miss him, but also

intending to make him think

that he would be hit. A has the

intent needed for battery.

Harmful or offensive

Contact is harmful if for

example it causes pain or bodily

damage. However, battery also

covers contacts, which are

merely offensive The test is

whether or not the contact was

permitted by the plaintiff.

Trespass to the person

Under Kenyan Laws this is defined as an act of the

defendant which causes the plaintiff reasonable

apprehension of the infliction of a battery on him by

the defendant. It is an act of the defendant which

directly and either intentionally or negligently causes

the plaintiff immediately to apprehend a contact with

the body of the defendant .This tort under kenya law

protects a person from mental anxiety.

Rules of the Tort

1. There must be some apprehension of contact

2. There must be a means of carrying out the

threat by the defendant

3. The tort is actionable per se.

4. The tort is generally associated with battery

5. Mere words without body movement do not

constitute assault.

Assault under Kenya law is constituted by:-

i. A display or show of force

ii. Pointing of a loaded gun

iii. Cursing in a threatening manner

Battery

This is defined under Kenya law as the intentional and

direct application of force to another person. It has

been defined as any act of the defendant which directly

and either intentionally or negligently causes some

physical contact with the person or body of the plaintiff

without his consent.

As a general rule battery is based on an intentional act

and is both a crime and a tort.


25/41




Meaning of Force

This is defined under Kenya law as any physical contact with the body of the plaintiffor with his clothing is sufficient to amount to force. There is battery where the

defendant shoots the plaintiff from a distance just as much as when he strikes him

with his fist. Mere passive obstruction is however not battery.

In the technical sense however, no physical hurt is necessary, for all forms of trespass

are actionable per se i.e. without prove of damage.

Where there is express or implied consent to contact the plaintiff cant sue. Life

would be difficult if all bodily contact was actionable and courts have struggled to

find some further ingredient to distinguish battery from legally unobjectionableconduct.

For battery there must be a voluntary act by the defendant intended to bring about

the contact with the plaintiff. The battery need not be committed with the person of

the person of the defendant.

Rules of Battery Under Kenya Law

1. Absence of the plaintiffs consent

2. The act is based on an act of the defendant mere obstruction is not battery

3. A contact caused by an accident over which the defendant has no control is not

battery

4. There must be contact with the person of the plaintiff it has been observed The

least touching of another person in anger is battery

5. Battery must be direct and the conduct must follow from the defendants act

6. The tort is actionable per se. The essence of battery is to protect a person from un-

permitted contacts with his body. The principal remedy is monetary award indamages.

Assault

Definition: Assault is: (1) intentionally (2) causing apprehension of (3) harmful or

offensive contact

NOTE

Both torts of assault and battery are actionable per se under Kenya law.


26/41




Definition: False imprisonment is: (1)

a sufficient act of restraint that (2)

confines someone to a (3) bounded

area.

In Big Town Nursing Home, Inc. v.

Newman (US)it was held that:

False imprisonment is the direct

restraint of one person of physical

liberty by another without adequate

legal justification.

(a) One person cannot give away the

rights to liberty of another unless

there is (1) a power of attorney, or

(2) legal guardianship, or (3) mental

incompetency.

Intent: Amust show that B either

intended to confine him, or at least

that B knew with substantial

certainty thatA would be confined

by Bs actions. The tort of false

imprisonment cannot be committed

merely by negligent orreckless acts.

Confinement: The idea of

confinement is that Ais held within

certain limits, not that she is

prevented from entering certain

places. (Example: B refuses to allow

A to return to her own home. This is

not false imprisonment Acan go

anywhere else, so she has not been

confined.)

The imprisonment can be carried out

by directphysical means, but also by

threats or by the assertion of legal

authority.

Where the defendants act has caused no damage the

courts may award only nominal damage but the court

may also award aggravated damages because of the

injury to the feelings of the plaintiff arising from the

circumstances of the commission of the tort.

False imprisonment

This is defined under Kenya laws as the infliction of

bodily restraint which is not expressly authorized bylaw. Its an act which is directly and either intentionally

or negligently causes the confinement of the plaintiff

within an area limited by the defendant.

This tort under Kenya law protects a persons freedom

by making unlawful confinement actionable.

It is possible to commit the tort without imprisonment

of a person in the common acceptance of the tort. In

fact neither physical conduct nor anything resemblingprison is necessary.

Main Ingredients of the Tort

(a) Knowledge of the plaintiff

Under Kenya laws, knowledge of the restraint is not

necessary but may affect the quantum of damages

(b) Intention and directness

The tort under Kenya law is defined to exclude negligent

imprisonment of another person. The tort must be

intentional and should be committed directly.

Nevertheless, where for reason of lack of intention or

directness the plaintiff cannot establish false

imprisonment an action in negligence may still be

available.

(c) The restraint must be complete

There must be a total restraint placed upon the plaintiffs freedom of action.


27/41




Rules of the Tort under Kenya Law

1. The tort must be intentional

2. It is immaterial that the defendant acted maliciously

3. The restraint or confinement must be total. However, it need not take place in an

enclosed environment

4. It has been observed every confinement of a person is an imprisonment whether it

be in a common prison, private house or in the stocks or even forcibly detaining one

in the public

5. The boundary of the area of confinement is fixed by the defendant. The barriers

need not be physical. A restraint affected by the assertion of authority is sufficient.

6. The imprisonment must be direct and the plaintiff need not have been aware of the

restraint

7. The tort is actionable per se.

8. The principal remedy is a monetary award in damages.


28/41




Ingredients of Trespass

Possession:

Since trespass is a wrong done to the

possessor of land, only he (rather

than the owner, unless, of course, the

owner is also in possession) can sue.

Possession includes not only physical

occupation, but occupation through

servants and agents. Mere use, for

example by a lodger or licensee

(visitor) is not possession in law.

Interference:

This must be direct interference,

either by Entering on land, or

Remaining on the land after

permission to stay has ended. An

exception is a tenant who, if he

remains on at the end of his tenancy,

retains possession as a statutory

tenant and therefore does not

become a trespasser. Placing

objects on land. If a right to enter

on the land is abused this may alter

the position of a lawful visitor to that

of a trespasser:

NOTE

If a person enters in exercise of acommon law or statutory right and

abuses the right by a positive act he

is deemed to be a trespasser from the

moment he entered the premises, i.e.

a trespass ab initio (from the

beginning).

Trespass to Land

Trespass to land is the Direct interference with thepossession of another person's land without lawfulauthority.

Common law trespass

As generally used, trespass occurs when either:

(1) Defendant intentionally enters Plaintiffs land,

without permission.

(2) Defendant remains on Plaintiffs land without the

right to be there, even if she entered rightfully.

(3) Defendant puts an object on (or refuses to remove

an object from) Plaintiffs land without permission.

Trespass a tort actionable per se, i.e. without proof of

loss. It is actionable merely because it has been

committed.

Defences:

The general defences of volenti, necessity, inevitable

accident, self-defence and statutory authority all apply,

but mistake is no defence.

Special defences, however, are:

Entry to exercise a common law right. For example, if

A enters B's land to repossess his goods that B has

wrongfully taken onto his land.

Entry by licence. When the licence expires the person

becomes a trespasser when he does not leave, in

contrast to a lessee/tenant who remains in possession.

Remedies available to the person in possession:

i. Damages, nominal or compensatory.

ii. Injunction.

iii. Ejection of the trespasser. Reasonable and proportionate force may be used.

(i.e. Proportionate to the amount of force that the trespasser is using toprevent ejection).


29/41




Remedies available to an owner who has been wrongfully dispossessed:

i.

Re-entry - however the re-entry must be peaceful.

Note:

The law regarding tenants has now been changed so that it is illegal to remove a

tenant without first obtaining a court order.

ii. An action for the recovery of land.

iii. Having recovered possession as above, such person is deemed, by the doctrine

of Possession by Relation, to have been in possession since the moment his

right to possession accrued. He can therefore maintain an action for mesneprofits, (i.e. profits lost to the claimant, or a sum for the defendants use and

occupation of the land) whilst the defendant was wrongfully in possession

Conversion

This is defined under Kenya laws as the intentional dealing with goods which is

seriously inconsistent to possession or right to possession of another person. This

tort protects a persons interest in dominion or control of goods.

The plaintiff must have possession or the right to immediate possession. However, a

bailee of goods can sue 3rd parties in conversion so can a licensee or a holder of a

lien or a finder. Any good or chattel can be the subject matter of conversion. There

must be physical contact resulting in interference with the goods.

Acts of conversion under Kenya law

i. Taking goods or disposing; it has been observed that to take a chattel out by

anothers possession is to convert it or seize goods under a legal process

without justification is conversion.

ii. Destroy or altering

iii. Using a persons goods without consent is to convert them

iv. Receiving: the voluntary receipt of anothers goods without consent is

conversion.

However, receiving of anothers goods in certain circumstances is not actionable for

example goods received;-

i. In a market overt; the purchaser acquires a good title

ii.

Estoppel; if the true owner of the goods is by his conduct denying the sellers

the right to sell, the buyer acquires a good title to the goods


30/41




iii. Goods received from a factor or a mercantile agent

iv. A negotiable instrument received in good faith

v. Goods received from a person who has a voidable title before the title is

avoided

vi. Disposition without delivery - a person who sells another goods without

authority but without delivering them to the buyer converts them

vii. Disposition and delivery -A person who sells anothers goods without

authority and delivers the same to the buyer is guilty of conversion

viii. Mis-delivery of goods a carrier or a warehouse man who delivers the goods to

the wrong person by mistake is guilty of conversion

ix. Refusal to surrender anothers goods on demand

The principal remedy available is a monetary award in damages and the plaintiff is

entitled to the value of the goods he has been deprived. The value s determined as per

the date of conversion.

If the plaintiff suffers a pecuniary loss as per the result of the conversion he is

entitled to special damages.


31/41




Donoghue -v- Stevenson (1932).

The appellant, Mrs. Donoghue and a

friend went into a cafe where the

friend purchased a bottle of ginger

beer for Mrs. Donoghue.

The appellant (Mrs. Donoghue) had

drunk one glass from the bottle of

ginger beer but as she poured out the

second glass, the decomposed

remains of a snail came out of the

bottle. The appellant became ill as a

result and sued the manufacturers,

claiming damages. The question

before the House of Lords was

whether the manufacturer of a

product owes the consumer a duty of

care in tort to prevent injury.

The importance of this decision was

that the consumer (i.e. Mrs.

Donoghue) was not the purchaser of

the drink, but a friend of the

purchaser. There was, therefore, no

contractual relationship between her

and the manufacturers of the ginger

beer. The manufacturers claimed

that as there was no contractual

relationship between them, they

could not be liable to her. The House

of Lords decided otherwise, thus

liberating liability in negligencefrom the rigidity of privity of

contract which had until then been

the deciding factor, it established a

new category of duty owed by a

manufacturer to the ultimate

consumer.

Negligence

Negligence relates to the protection of the person and

of property.

The law in this respect makes a distinction between

intentional and non-intentional, or involuntary,

interference with person and property. Where the

interference is intentional, the appropriate tort is

trespass to the person, trespass to goods or trespass to

property.

Where the interference is involuntary (i.e.

unintentional) but negligent the appropriate action lies

in the tort of negligence.

As an independent tort, negligence can be defined as

being:

The breach of a legal duty to take care, owed by

the defendant to the claimant, resulting in

unintended harm to the claimant

There are three essential ingredients of the tort that

must be established:

1. The existence of a legal duty of care owed by the

defendant to the claimant

2. A breach of that legal duty by the defendant

3. Injury to the person or damage to property suffered

by the claimant arising out of the breach of the duty.

It is necessary to examine these three ingredients in

detail:

The existence of a legal duty of care

The claimant must satisfy the court that a legal duty of

care is owed to him by the defendant.

A legal duty of care means a duty recognised by the law.


32/41




InDonoghue v

StevensonLord Atkin

stated: A manufacturer of

products, which he sells in

such a form as to show that

he intends them to reach

the ultimate consumer in

the form in which they left

him with no reasonable

possibility of intermediate

examination and with the

knowledge that the absenceof reasonable care in the

preparation of the

products will result in an

Injury to the consumer's

life or property, owes a

duty to the consumer to

take that reasonable care.

The case was a

breakthrough in

connection with the tort of

negligence and formed the

basis of the law of

manufacturers' liability for

products.

More important, for a

keen student of negligence

law, the decision illustrates

the tort of negligence can

be developed to cover

situations for which there

is The court said that the

categories of negligence

are never closed, meaning

that the court can adapt

the neighbour principle to

new situations if and when

they arise. no preciseprecedent.

How can we define a duty of care? The most frequently quoted attempt to

rationalise the duty of care is the famous statement by Lord Atkin in Donoghue -v-

Stevenson (1932):

You must take reasonable care to avoid acts or

omissions which you can reasonably foresee would be

likely to injure your neighbour

NOTE

Everyone owes a duty to take reasonable care to avoidacts or missions whom they can (reasonably) foresee

would be likely to injure their neighbour

In Donoghue v- Stevenson, defined neighboursas:

.... 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 into

question.

the neighbour test.

In connection with the tort of Negligence:

A person must take reasonable care..........

To avoid acts and omissions............

Which they can reasonably foresee would be likely to

injure any persons..................

Who are so closely and directly affected by their

act.............

That they ought reasonably to have them in

contemplation as being so affected................

When they are directing their mind to the acts or omissions, which have been called

into, question....................

However,

The duty of care must be owed to the claimant:


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In Bourhill -v- Young (1943),a

motorcyclist, driving too fast, was

involved in an accident with a car.

Some distance away, in a safe

position, a pregnant woman heard

the sound of the crash which

frightened her so much that it made

her ill and caused her to give birth

later to a still-born child. The court

held that she was beyond the area of

foreseeable danger and that thedefendant owed no duty of care to

her. It would not have been

reasonable for the defendant to have

contemplated that the accident

would have had the repercussions,

with regard to the claimant, that it

did.

Two more cases show a wider

operation of this foreseeability. In

Dooley -v-Cammell Laird & Co. Ltd.

(1951), the claimant recovered

damages for nervous shock caused

by fear for the safety of his work

mates, when the sling on a crane,

which he was operating, collapsed,

sending its load into the hold of a

ship where the others were working.

In Chadwick-v- British Transport

Commission (1967), the claimant

recovered damages for nervous

shock after his involvement in a

rescue operation following a train

accident. The court held that it was

foreseeable that persons might come

to the rescue in the case of a crash

and might suffer nervous shock as a

result.

The problems that arise here involve claimants who are

so removed from the area of the breach of duty of care

so that they cease to be foreseeable by the defendant as

likely to be injured by the negligent act or omission, or,

to put it in plain English - a reasonable person would

not have foreseen that their negligent act (or omission)

would, in the circumstances, have harmed the

claimant.

Foreseeability and proximity

The concept of foreseeability or remoteness offoreseeability is called the test for proximity.

Thus one can ask:

Was the commission of the tort the proximate cause

of the damage complained of?

Technically, the concept of foreseeability and

proximate cause is one and the same, looked at from

different angles.

Space, time, distance, the nature of the injuries

sustained and the relationship of the claimant to the

immediate victim of the accident are factors to be

weighed, but not legal limitations, when the test of

reasonable foreseeability is to he applied. Per Lord

Scarman in McLoughlic -v- OBrian (1982).

NOTE

It is firmly established that a careless/negligent personshould not have to compensate everyone that might

suffer as a result of his acts or omissions.

For example: The English case ofAlcock & others -v-

Chief Constable of South Yorkshire Police

(1991)(the Hillsborough disaster case) is typical of a

recent move towards restricting the extension of the

duty of care as a matter of public policy.


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Another example is In Hill -v Chief Constable of West Yorkshire (1989), the

court held that the police do not owe a duty of care to the general public in relation to

the prevention or detection of crime.

The main argument against such an extension of the duty of care is based on the

floodgates argument.

Liability for negligent misstatements

This arose out of the decision in Hedley Byrn & Co. Ltd -v- Heller & Partners

Ltd (1963)where the House of Lords established that recovery for economic loss

arising out of a negligent misstatement was possible where:

The advice was given by an expert

acting within the sphere of his or her expertise

who is in a relationship of sufficient proximity to the person receiving the

advice so that the defendant must reasonably know who is going to act on

their advice and the way in which they are going to act.

The more recent decision in Caparo Industries -v- Dickman (1990)has clarified

the situation of liability for negligent misstatement. In this case the court held that

the auditors of a company did not owe a duty of care to shareholders or members of

the public who purchased shares in reliance on the audited accounts, which they hadprepared negligently.

Although it may be foreseeable that persons use the audited accounts for a variety of

purposes, including making decisions about whether or not to purchase shares, and

that they may suffer financial loss if the accounts are inaccurate, this was insufficient

to establish a duty of care. In addition, there must be sufficient proximity between

the claimant and the defendant, and the court must consider it just and equitable to

impose a duty of care.

The person giving the advice or information must be fully aware of the nature of thetransaction in contemplation and that the claimant would rely upon the advice or

information. The court found that the purpose of the auditor was to enable the

shareholders as a body to use the audited accounts to make corporate decisions, and

not for the purpose of individual shareholders making personal decisions as to

whether or not to deal in the securities of the company.

Breach of the duty of care

The test of whether there has been a breach of duty is an objective one based on the

notion of the response to the situation of a reasonable person. This is not aparticularly conscientious person but the average, prudent person.


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Whether or not there is a breach of a duty of care is always a question of fact,

depending on the circumstances of the case. In determining whether there has been a

breach of duty the courts will take into account the following factors:

The likelihood of harm

The seriousness of the risk and the risk of serious injury

The usefulness or importance of the defendant's activity when the alleged

negligence occurred

The relationship between the risk and the measures taken

The burden of proof and res ipsa loquitur

The likelihood of harm:

The amount of care required to be exercised increases with the likelihood that the

defendant's action will result in harm. Thus if there is only a remote possibility of

harm, a person will be acting reasonably even though he or she does not protectagainst the harm being suffered.

The Less likely the harm, the lower the duty of care

The more likely the harm, the higher the duty of care

The seriousness of the risk and the risk of serious injury:

The standards of a reasonable person may in certain circumstances be higher,

particularly where the defendant is aware of the need for greater care.

The usefulness or importance of the defendant's activity when the alleged

negligence occurred:

The court will take into account the value to the community of the defendant's

activity at the relevant time.

The relationship between the risk and the measures taken:

The measure taken in avoiding the risk of harm must be balanced against the

likelihood of the risk.

The burden of proof and res ipsa loquitur


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Res ipsa loquituris Latin for the thing speaks for itself

In normal circumstances the burden of proof is on the claimant to establish thenegligence, i.e. the breach of the duty of care. However, there is a rule of evidence,

which is of great importance in the tort of negligence, since it removes from the

claimant the burden of proof. Is the rule, or doctrine, ofRes Ipsa Loquitur.

The doctrine of res ipsa loquitur

In certain circumstances, the fact that the accident happened points to no other

explanation other than that the defendants negligence must have caused it. In these

circumstances all that the claimant is required to establish is the injury, which they

have suffered. The doctrine establishes prima facie negligence on the part of thedefendant, which they are obliged to rebut if they are to avoid liability.

The doctrine only applies in a limited number of cases, namely where the claimant is

unable to prove the precise cause of the injury, but where the most likely cause was

some act or omission on the part of the defendant, or someone for whom the

defendant is vicariously liable.

In order to establish the application of the doctrine, three requirements must be

established:

1. It must be impossible to establish the negligent action or omission, which caused

the injury.

2. The injury must be such as would not normally have occurred if proper care had

been exercised.

3. The defendant must have had control over the events alleged to be the cause of the

injury.

Remoteness of damage

The doctrine of remoteness of damage states:

Intended consequences are never too remote;

If, however, the consequences are unintended, the wrongdoer is liable for the

natural and probable consequence of their wrongful act. In this context a

consequence is natural and probable when it is one which is so likely to result from

the act, that the wrongdoer, acting as a reasonable person, would have foreseen it,because of their state of knowledge or means of knowledge, and thus would have


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In The Wagon Mound (1961) an

action was brought by the

owners of a wharf against the

owners of a ship called The

Wagon Mound. The ship had

discharged oil into Sydney

harbour which ignited when hot

metal from welding operations

being carried on in the harbour

fell onto a piece of cotton wastefloating on the oil. As a result the

wharf was severely damaged.

The court held that damage to

the wharf simply by fouling

would have been foreseeable to

the reasonable man, but not

damage by fire since oil on water

does not usually ignite. The

ignition of the oil only occurred

because the hot metal happened

to fall onto a piece of highly

combustible cotton waste and

such an eventuality was not

reasonably foreseeable.

Note:

In torts of strict liability (i.e. the

rule in Rylands-v-Fletcher and in

breach of statutory duty), the

reasonable foreseeability test

does not apply. The defendant

will have to compensate the

claimant for all the damage that

is the direct result of the tort.

avoided doing the act. It follows, therefore, that a

defendant will only be liable to compensate the

claimant in respect of the foreseeable result of his act.

Anything else is too remote

Closely coupled with the doctrine of remoteness of

damage is the doctrine that a claimants award of

damages can be reduced if he, himself, has in any way

contributed to the damage sustained. It is called

contributory negligence

Contributory negligence can arise under the following

circumstances:

Where the claimant contributes to the accident,

e.g. both the claimant and the defendant were

driving negligently when the accident occurred

Where the claimant through his action or

omission makes the injury or damage suffered

more serious, e.g. by failing to wear a seat belt in

a car or a crash helmet on a motorcycle

Relevant defences

Remoteness of Damage:

The second general defence in Tort is that the damage

suffered was not suffered as a direct result of the tort,

i.e. it is too remote from the tort itself. This is called

remoteness of damage.

In essence, a defendant is not liable for damage, whichis not sufficiently clearly linked with the tortuous act of

the defendant.

If, for example, the claimant would have suffered the

same injury despite the defendants tortuous conduct,

he will not receive compensation.

The test, which is one of reasonable foreseeability as

established in The Wagon Mound (1961)and

provides that:


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A defendant is only liable for the consequence of his act that a reasonable man

would have foreseen.

NOTE

The test is an objective test -i.e. what matters is not what the defendant actually

(personally) foresaw (which would be a subjective test) but what a reasonable man

(i.e. your ordinary everyday person.

The Thin Skull principle

There is an exception to the test of foreseeability. The general principle is that a tort-

feasor (the person committing the tort) takes his victim as he finds him. If, due tosome peculiar weakness, the victim suffers injury beyond that which is foreseeable,

the defendant will be liable for the injury actually suffered.

Novus Actus Interveniens:

The other defence is novus actus intervenienswhich, translated from the Latin

means a new intervening act (or cause).

This, then, is an act, or event, that breaks the connection between the tort and the

subsequent damage and therefore relieves the defendant of liability for such damage.

A defendant will escape liability if he can prove that the injury suffered by the

claimant was the result of a subsequent and intervening event, which broke the chain

of causation linking the injury (damnum) to their tortuous act (injuria). This may be

an act of the claimant himself or the act of a third party over which the defendant had

no control.


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Remedies

Under Kenya laws the main remedy against tortious loss is compensation in

damagesor money.

In a limited range of cases, tort law will tolerate self-help, such as reasonable force to

expel a trespasser. This is a defence against the tort of battery.

Further, in the case of a continuing tort, or even where harm is merely threatened,

the courts will sometimes grant an injunction. This means a command, for

something other than money by the court, such as restraining the continuance or

threat of harm. Usually injunctions under Kenya law will not impose positiveobligations on tortfeasors, but some jurisdictions can make an order for specific

performance to ensure that the defendant carries out their legal obligations,

especially in relation to nuisance matters.

Damages

Under Kenya laws,the fund

Documents

Law of Torts in Kenya