Tort is an aspect of Common Law. Common Law – Unwritten Law.

Introduction:Definition:(i) ‘Tort’ means a ‘wrong’ and this is derived from the Latin word ‘Tortus’

(ii) Aim and objective of law of TortThe aims and objectives of the law of tort is to give compensation to those who have been wronged by others, thus the law of tort is different from the law of contract which aim is to deal with enforcement agreements.

(iii) Liability in TortStrict Liability and Intentional tort (fault liability)Historically, the liability of a ‘tortfeasor’ (someone who commits tort) used to be based on the concept of ‘strict liability’. The courts were not prepared to establish liability in tort on whether the tortfeasor acted ‘voluntarily’ or not.

The modern approach is that liability in tort is based on “FAULT” in which the ‘INTENTION’ of the tortfeasor would determine his guilt. This led to the concept of Intentional Torts even though there are a few torts now based on the concept of strict liability.

2. INTENTIONAL TORTSTrespass to the PersonBatteryWhat is battery?

1. Battery is defined as any act of the defendant which directly and their intentionally or negligently causes some physical contact with the body of the plaintiff without his consent.

2. The elements of the tort of battery can be broken down as follows:

Elements1. There must be a direct act of the defendant (Scott v Shepherd) In this case a direct act was defined to include the continuation of the act of the defendant by an independent person.

2. The defendant should have acted voluntarily, deliberately, intentionally or carelessly. If the defendant’s act was accidental then the plaintiff action will not succeed.

3. There must be a physical contact with the body or the person of the plaintiff.

4. There must also be no consent from the plaintiff as to the physical contact made by the defendant.

5. The defendant’s act should have been a positive act and not an omission to act.

6. Battery is actionable per se as proof of damage is not required

3. ASSAULTDefinition1. Assault is the act of threatening another person by the application of eminent battery which has the effect of putting that person in reasonable fear and anxiety

2. An eminent threat has been threat in the following cases:

a. A clenched fist of the defendant stretched in anger towards the plaintiff was held to amounting to assault. (Stephen v Myles)

b. Where the defendant chased the plaintiff with a cane, it was held to amount to assault. (Mort v Shoppee)

c. To corner the defendant in a small corner and threaten him with words ‘ I will break your neck’ also amounts to assault (Read v Gun)

d. To point a gun at a person whether it is loaded or not also amounts to an assault (R v St. George, Osborne v Veitch, contrast this with the case of Blake v Barnard)

e. To use strong and offensive words ‘angrily in the heat of an argument against the plaintiff also amount to an assault.MEADS CASE

iii. The essence of the eminent threat is that it must;a. disclose an intention to commit battery against the plaintiff by the defendantb. It must be able to upset the plaintiffs mental and emotional stability

C. TORT OF FORCED IMPRISONMENT1. Definition: The tort of false imprisonment means an unauthorized bodily restraint or incarceration of the plaintiff by the defendant. The restraint means both physical and mental restraint, whiles “forced” here means an unlawful or wrongful detention but not dishonest incarceration.

2. Elementsa. the acts of the defendant must be a direct act (Warner v Riddiford).b. the act of the defendant must be either intentional or negligentc. The restriction must be absolute and not partial (Bird v Lanos)d. the plaintiff should not have consented to the imprisonmente. there’s also force imprisonment even if the plaintiff was not aware that he was being incarcerated. (Merring v Boyle)f. an action in force imprisonment can be joined in an action for unlawful arrest or malicious prosecution

D. Unlawful Arrest1. Definition: Means the unlawful physical restraint of another person.2. An arrest is lawful if it was made by a policeman or it if was ordered by court of competent jurisdiction. A private person can also make a lawful arrest but this is restricted to some crimes and it is subject to risk.3. A policeman can arrest either with or without a warrant:

a. Where the arrest is by warrant then it must state the nature of offence, the name and the description of the person to be arrestedb. Where a policeman arrests without a warrant the only text is that the arrest must be based on reasonable suspicion.

4. A private citizen can also arrest without a warrant but this is restricted to only five offences which should have been committed in his presence:

a. causing violenceb. causing bodily harmc. fraudulent behavior

d. causing damage to public propertye. breach of public peace

5. Even where the private citizen makes a lawful arrest, if the accuse person is later acquitted and discharged the private person shall be liable to him for force imprisonment and malicious prosecution. (Onoghi v A.G. Leventis)

TORT OF MALICIOUS PROSECUTION 1. The tort of malicious prosecution arises when the defendant through lies and force accusations causes the arrests and criminal prosecution of the plaintiff by the police.

2. To succeed in an action for malicious prosecution, the plaintiff must prove all the following five;

Elements:a. that it was the defendant who instituted his prosecution (Soadwa v Obeng). In this case it was defined as putting the law into force, and not making a complaint to the police

b. that he was acquitted and discharged a ‘nolle prosequi’ application by the state does not amount to an acquittal and discharge.

c. that the defendant undertook the prosecution without reasonable and probable cause

d. that the defendant was activated by malice

e. as a result of the prosecution the plaintiff suffered damage (Nana Akuamoah Boateng v Yeboah)It was held that the accuse a paramount chief of extortion amounted to damage to his persona integrity.

VI. THE RULE IN WILKINSON AND DOWNTONI) this tort takes its name from the case itself. In other words, it is a tort with a decided case as its name.

2) It’s defined as a statement of the defendant made jokingly and falsely which is calculated to cause and actually caused physical harm to the Plaintiff.

3) The effect of the joke is treated like trespass to the person not because of any physical threat but because of the physical injury which occurs as a result of the joke.

4) A joke will amount to the tort of Wilkinson v Downton if a. It is a false statement or a misrepresentation and b. the misrepresentation must be one which is capable of causing emotional or nervous breakdown (Janvier v Sweeny)In that case, it was held that a shock suffered as a result of a false accusation will fall under the tort of Wilkinson v. Downton C. The misrepresentation should have been made to a person of sound mind and health.

III - TRESSPASS TO LAND

DefinitionA defendant commits trespass to another persons land if he i ntentionally or negligently enters or remains or has a direct contact with land or premises in possession of another person without his permission

Elements of this TortA. In this tort, the plaintiff need not prove damage in order to succeedB. The act of the defendant must be a direct physical interference of the land or premises belonging or occupied by the plaintiff.

Lavenda v BeltsIn that case it was held that removing the doors and windows to a premises amounted to a direct interference to the premises by entering or taking over the said premises

However, in Perara v Vandiya, it was held that cutting electricity and gas supplies to a premises does not amount to a direct act because the defendant did not enter the said premises by doing so.

C. A licensee can not be described as a trespasser to land or premises

Cowell v Rosehill Race Course;

In that case, it was held that until his license had been invoked by the landlord, a licensee can not be ejected from the premises.

Hurst v Picture Theater

D. Similarly, a persons who drifts by accident or through an involuntary act enter on another persons land can not be liable on this tort. Smith v StonesHowever mistake is no defense for an action of trespass to land

Basely v Clarkson

E. in an action for trespass to land or premises, the plaintiff must prove that he was in possession of the said land or premises. He need not necessary be the owner of the land or premises in order to sue for a example a Lessee of land or premises can sue as the one in possession, but a licensee can not sue.

F. Trespass to land includes trespass to the surface soil, sub-soil and air space. Trespass to the surface includes any direct interference with land such as cutting timber, digging for minerals, hunting etc. In the case of Kelsen v Imperial Tobacco Limited, it was held that a defendant commits trespass to land by projecting their advertising board in to the plaintiffs are space

4. TRESPASS TO CHATTELS

1. Tort of ConversionDefinition: Conversion is the act of unlawful or unauthorized interference with another persons chattel by depriving him of the use of that chattel.

2. Acts that amount to conversion includes stealing, ceasing, destroying or taking away a chattel from the possession of the owner by depriving him of the use of it

3. The person who is suing conversion need not be the owner of the chattel in all cases. The person who has ‘the right to immediate possession’ can also sue in conversion. An owner may give up his right to immediate possession to another person.

(a) where chattels like diamonds or gold are by accident found in land, then apart from the real owner of the land, it is the one in possession of the land who can bring an action in conversion and not the finder of the chattel. South Stafordshire water company v Sharman; Elwes v Briggs Gas Company.(b) Where the chattel was picked from the surface soil then the capacity to sue in conversion is determined by the nature of the chattel; the extent of public access to the place; and whether the owner of the premises leaves there

Bridges v HawkesworthIt was held that the finder of currency notes in a shop was entitled to sue in conversion and not the owner of the shop

Hannah v PeelIt was held that a soldier who found a broach in a building occupied by his unit was entitled to it as a finder because he had a right to immediate possession

4. Mere User of a chattel without damage does not amount to conversion but it amounts to trespass to the goods.

TORT OF DETINUE(i) Is also a wrongful inteference of the plaintiffs goods or the conversion of the plaintiffs goods by the defendant. Bu under conversion , an action in detinue orders the defendant to return the wrongfully detained goods or pay their current value to the plaintiff(ii) In England detinue as a tort has now been abolished by section 1 subsection 1 (torts interference with goods act 1977 and is now included under the tort of conversion section 1 subsection 1

DEFENCES TO THE INTENTIONAL TORTSi. A defence of INEVITABLE ACCIDENT is available if the defendant can

prove both his act was accidental but not due to the carelessness or a deliberate act of the defendant

ii. The defence of ‘Consent’ which is sometimes known as ‘assumption of risks’ and ‘volenti non fit injrial’ can operate as a total exclusion in respect of all forms of tort liability. Certain statutes such as the workmens compensation act has reduced the effect of the defence of consent. Ali Chana v Konongo Gold mines.

iii. There is also the defenceof SELF DEFENCE which allows a defendant to use ‘ reasonable force’ to repel assault and battery.

iv. A defendant cal also us’reasonable force to repel battery to a relativev. The same resoable force can be used to defend one’s property if it is in

dangervi. The defence of NECESSITY is available to justify force used to save life;

but the defendant mut further show that he acted reasonably in the circumstance.

vii. A trespass can also be committed to abate a nuisance likely to destroy the defendant’s interest in his property. Trespass may also be justified to promote disciplineor to retrieve ones chattel from another

viii. The limitation of actions decree, NRCD 54 bars certain actions after a period of time. No action can be instituted after 3 years in the action for NEGLIGENCE, NUISANCE, ASSAULT AND BATTERY.

TORT OF NUISANCEi. Nuisance is any act of the defendant which disturbs the plaintiff in the

USE OR ENJOYMENT of his land.ii. The tor of nuisance is made up of two key elements

a. PUBLIC NUISANCE -which is a CRIME but can give rise to civil action by any individual who thinks he has suffered some particular damage greater than the one suffered by the public

b. PRIVATE NUISANCE – which is described as ‘Unlawful interference with a persons use or enjoyment of land, or some right over or in connection with it’.

iii. The basis of the defendants liability in nuisance is that his act must amount to an unreasonable interference with the plaintiffs interest by affecting the land either materially or his enjoyment of it.

iv. Material damage or interference includes floofing, encroachment by weeds and contamination by sewerage. The plaintiffs enjoyment of his land may also be affected by way of noise, smell and interrupted of view of light, air etc etc.

v. Only those who have a legal interest in the land affected can sue in private nuisance so that ‘free holders’ and ‘lessees in occupation of the land can sue in privat nusance; wilst mere visitor s and tenants can not sue.

vi. The following defences available to the defendant when he is sued in nuisance:a. inevitable accidentb. ignorance of the state of affairsc. Prescriptive rights acquired for over 20 yearsd. Statutory authorization i.e. where you have a permit

vii. The following remedies available to the plaintiff who sues in provate nuisancea. the plaintiff can sue for an injunction to restrain the defendant from

continuing to creat the nuisanceb. he can use abatement to stop the nuisance by way of self helpc. he can sue for damages.

30/7/2012 THE RULE OF RYLAND V FLEITCHER

1. The rule in Raland v Fleitcher is based on STRICT LIABILITY in which liability is imposed on the tortfeasor irrespective of fault.

2. The rule was laid down by Blackburn, J, in the case of Ryland v. Fleitcher in the court of exchequer chamber 1866 LR, 265 in which he stated that, “a person should not use his in such a way in order not to injure other people”

FACTS:

In that case the defendant owned a mill, which was run by water. In order to improve the water system, they employed a contractor to build a reservoir as result of the inefficiency of the contractor, the reservoir became ineffective and it started gushing out water, which flooded a coal mine belonging to the plaintiff.

Blackburn J, held that the defendants were liable explaining that if you accumulate something on your land and it ESCAPES to destroy another neighbours chattels or property, then you will be liable.

The defendants appealed to the House of Lords, but the appeal was dismissed. Lord Cairns said that for a defendant to be liable under the rule of Ryland v Fleitcher [1866]L,R. 3EIE, 330, HE MUST BE PUTTING HIS LAND TO A NONE NATURAL USE.He stated the rule as follows:

“ a person who in the course of a none natural use of his land accumulates on it anything likely to cause harm and it escapes, is liable for the damage or injury to the land of another arising from the escape of the thing from his

land”

3. The elements of the rule

A. None-natural User

The meaning of this was explained in the case of Rickands v Lothan [1913] A.C, 263. A plaintiff is regarded as having put his land to a non-natural user where he uses the land to “some special use bringing with it increased danger to others”.

Facts: The plaintiff was a tenant on a floor below that of the defendant. He suffered an overflow of water from the defendant’s pipe, which was left on to run.

The Privy Council held that, the defendants were liable even though they were not negligent. See also Contra Read v Lyons, [1947] AC 156.Facts: The defendant/respondent carried on in his factory the business of feeling shell cases with high explosives. The plaintiff appellant an invitee was an employee of the Ministry of supply with the duty of inspecting the filling of shell cases and her work required her to be present in the shell filling shop. On August 4th 1942, whiles the plaintiff was lawfully in the shell filling shop, in discharge of her duty, an explosion occurred which killed a man and injured the plaintiff and others.

The issue for the court to decide was whether the defendant in these circumstances were liable without any proof, or inferences that they were negligent in causing the harm to the plaintiff and others.

At the lower court, it was HELD that, it was governed by rule in Ryland v Fleticher and that the defendants were liable on the grounds that they carrying on an ultra harzardous activity and so were under what is called a “Strict Liability” to take care to avoid causing harm to persons whether on or off their premises.

But the court of appeal and later the house of Lords dismissed the decision of the lower court holding that a person on the premises had in the absence of any proof of negligence no cause of action and that there must be an escape of the damage causing thing from the premises, a damage caused outside before the rule customarily associated with the case of Ryland v Fleitcher can apply.

B. CONCEPT OF ESCAPEIf the thing does not escape before the damage, then the rule in Ryland v Fleicher does not apply.

In Read v Lyons ‘Escape’ for the purposes of the rule in Ryland v Fleitcher was defined as escape from a place which the defendant has occupation of, or control over, to a place which is outside his occupation or control

C. CONCEPT OF THINGS WITHIN THE RULEThe following ‘things’ come within the rule: 1. Explosives (Rainharm Chemical Waters v Bolvedere Fish Co. Ltd [1921] 2AC, Pg 462.Fire

3. Electricity4. Gas5. Water6. Human Beings (AG v Corty [1933] chancellery pg 89)

The Corty case show that if you accumulate human concregation on your land and they do things to injure other people’s property, then you’ll be held liable

D. CONCEPT OF ACCUMULATIONIt refer to something which a person collects artificialry on his land and then it escapes.

But where the thing was naturally on the land and it escapes then the rule will not apply – Read v Lyons (Supra) where it was held that using land for manufacturing was a natural use

E. THE EXTENT OF THE DEFENDANTS LIABILITYi. Injury to the land of the plaintiff is recoverable (Jones v Fostrining

Railway co. [1868] L.R. QB 733Fact: The sparks of fire from the railway engine set ablaze a hay stack on the plaintiffs farm, it was held that the damage was recoverable under the rule.

ii. Consequential damages to property is also recoverable under this Tort. Haley v Esso Petroleum Co. Ltd.

Facts: The plaintiff stationed his car somewhere and fire escaped from the defendant’s filling station to burn the car. It was held that the plaintiff could recover from the defendant the value of the car

iii. DEFENCES FROM THE RULE IN RYLAND V FLEITCHERconsent is a defense in an action under this rule if the defendant can prove that the plaintiff himself caused the escape by his conscious action then the plaintiff’s action will fail. The crux of the rule in RvF is the issue of Escape which is key to the whole concept, so that if the plaintiff consented to the thing which escaped then his action will fail. A. CONSENT Peters v Prince of Wales Theater [1943] K.B. 73B - ACT OF A THIRD PARTY: This is also a defence against the rule in RvF thus if the escape was caused by the unforeseen or deliberate act of a third party then the plaintiff cannot succeed under this rule.Facts:(Rex v Jubb) 1989 4.E.D. 170 In this case a third party emptied his reservoir into the defendants waterworks. It flooded and caused damaged to the plaintiffs property, it was held that, the defendant could not have prevented the incident and for that reason he was not liableC: AN ACT OF GOD: This is the third defense to an action in this rule. This defence states that, if the escape was caused by ‘natural causes’, without any human intervention and the circumstances was such that it is beyond human comprehension, then it is AN ACT OF GOD. Nichols v Mansland [1876] 2 EX DDFacts: In this case the defendant created some artificial ornamental lakes by damming up a natural stream, he held not liable when rainfall “Greater and more violent than any within the memory of witnesses “ caused the embarkment to collapse and the escaping water destroyed 4 nearby bridges

QUESTIONS: X owns a pice of land which has been developed into a tourist resort at Aburi. One of the attractions of this resort is a wall consisting loose stones the size of bulldozers depicting ancient architecture. One also have several pools containing exotic specie of fresh water fish.

One day while an adjoining land owner went onto the land while chasing a rabbit and was injured when the whole wall of loose stones tumbled down. Shortly after this, a violent rainstorm the like of which had never been seen at Aburi before flooded X’s pools. The pools over flowed their banks and destroyed Y’s crops.

Y wants to know from you, whether he can recover for his injuries and his damaged crops. Advise him.

APPROACH: 1. Identify the tort or torts as the case may be. 2. Elements which go to establish this tort or torts3. Go back to relevant facts from the question or case4. Raise legal issues from the facts5. Apply the law to the facts6. Make your own conclusions

ApproachThis case could properly fall under tort known as Ryland v Fleitcher. The name of the tort is derived vrom the name of the case itself. Also like nuisance, this tort arrises from the use of land by the defendant in a particular manner but the duty it imposes is muct stricter.

Rule of LawThe ration decidendi in that case is that a person who brings on his land things and if these escape and cause damage to the property of an adjoining land owner then you will be liable for the resulting damage.

Facts of the caseThe facts of this case was that the defendant employed a contractor to build a reservoir for him on his land. The contractor produced a defective work. The result was that water from the reservoir started leaking and went to flood the plaintifs coal mine putting him out of work; and destroying his machinery. The defendant was HELD liable for the escape of the water which was the natural consequence of the DAMAGE.

ElementsFor the rule in tort to apply, there must be the following

a. an ‘escape’ from the defendants land to a place outside his occupation or control. (Rainham and Chemicals Ltd v Relveder) where it was held that an explosion taking place in the defendants prmises could not come under the rule.

b. The use of the land must be NON-NATURAL (Richard v Lothian) where the plaintiff was a tenant on the floor below that of the defendant. He received an overflow of water from the defendants pipe left on carelessly to run. The privy Council Held that the defendants were liable even though they wer not negligent. But there are exceptions to this rule.i. if the thing escaping is something not normally dangerous which is

natural to have on land e.g tree, then there is no liability (Moore v Gunn). In that case it was held that rocks naurall on land will fell of on their own accord were outside the rule.

ii. If the thing escaping is kept for the common benefit of the plaintiff and defendant then the rule shall not apply

iii. An “act of God’ is a defence but not inevitable accident (Ruck v Williams where Bramwell B defined an act of God as an extraordinary work of nature of such an unaffected character that no human foresight could provide against it and which human prudence is not bound to recognize the possibility.

iv. Finally if the occurrence takes place through the plaintiffs own fault or that of a third person then defendant will not be liable.

FindingsFrom the law and the facts, my findings are as follows:

a. Y committed trespass to X’s land by chasing his rabbit into X’s land.b. There was an escape of water from X’s land to Y’s land but this was an ‘act of

God’ because the rainstorm was unusually violent according to living memory. Apart from this it can be inferred that X had used his land to a natural use because fish ponds from which the rain water flowed into are something commonly found at holiday resorts.

c. The loose stones like the fish ponds are also something natural found at a holiday resor. In the Moore v G case it was held that rocks, naturally on land which fell off an their own accord were outside the rule in in Ryland v Fleitcher

From the foregoing findings, I hold that X is not liable for the injury sustained by Y for the damage to his crops.

ASSIGNMENTMOUNTCREST UNIVERSITY COLLEGEINTERIM ASSESSMENT TORT IFIRST SEMESTER EXAMDOUBLE SPACE, 14 FONT

QUESTION

X and Y are adjacent land owners of North Ridge a plush residential area in Accra. Y has installed a cornmill in front of his gate. The cornmill has been making ‘excessive noise’ and pumping ‘smoke’ into Y’s compound from morning into the night. In addition to this X has built a KVIP inside his land but this is about 8 feet from Y’s bedroom over the common wall.

X has also planted several mango trees which have matured and their branches have entered into Y’s land. Recently, there was a heavy downpour of rain in Accra and water from X’s compound overflowed into Y’s land and entered into his premises and library destroying books worth over GHC10,000

Y who is a lawyer is very furious. He has appointed you for a legal advise as to what course of action to tale. Write a reasoned opinion as to the liability of X if any.

QUESTION ON BATTERY

X, at the wedding party of B was given a bottle of champagne to be opened by B. B stands by to watch him as X tries to open the bottle and it breaks and the broken piece enters B left eye blinding him in the eye. Consider the liability of X.

Approach/SolutionThis case raises questions that could lead to an action in the tort of battery against X by B. Battery has been defined by text writers as any act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of th plaintiffwithout his consent. Thus for there to be a battery, the plaintiff must prove that what he complains about is a direct act of the defendant. In scot v sheprpherd it was held that the direct contact must be a continuation of the act of the defendant. In that case the defendant threw a squip into a crowd in a market place. The free agent intervened before injury to the eye of the plaintiff and the defendant claimed that his act was not direct. It was held that the defendants act was direct and he was liable. Another element in this tort is that the plaintiff must also prove that the defendant acted voluntarily. This is because no battery is committed if there is an accident over which the defendant has no control.

Thirdly the plaintiff must move there was lack of consent from the physical contact on him by the defendant. Thus where in NASH V SHEEN, the defendant, a hair dresser applied to the plaintiffs hair a ‘tone rinse’ a dye which caused injuring in the form of a rash, it was held that an action would succeed in battery because the plainfitff consented to have permanent wave and not what gave her the injury.

Fourthly, the plaintiff must prove that there was physical contact with his body again the plaintiff must show that the defendant acted positively, but not an omission to act. INNES v WYLE, it was held that merely to obstruct the entrance to a room by standing still is not by itself enough to constitute a positive act. Finally battery like all trespass to the person is actionalble per se and no proff of injury is required befor an action can be sustained.

My advise to the parties is as follows:

i. X’s action to me was a direct act resulting in the physical contact of causing an eye injury to B. B did not consent to such injury evn though he gave the champagne to X

ii. But the facts of this case shows that even though X acted positively he did so involuntarily. Since X had no control over his conduct then it can be said that the injury was caused unintentionally and without negligence

iii. Therefore my advise is that no actioncan be battery as a trespass to the person

REVISION:

Intentional Torts:

Battery: X at a wedding B was given a bottle of champagne to be opened by B. B stands by to watch him as X tries to open the bottle and it breaks and a broken piece enters B’s left eye blinding him in that eye. Consider the liability of X.

Approach:This case raises questions that could lead to an action in the tort of battery against X by B

Battery have been defined by text writers as any act of the def. which directly and either intentionally or causes some physical contact with the person of the plaintiff without his consent.

Thus for there to be a battery, the plaintiff must prove that what he complains about is a direct act of the defendant. In scot v shepherd, it was held that the direct contact must be a continuation of the action of the defendant. In that case the defendant threw a squib into a crowd in a market place. A free agent intervened before injury to the eye of the plaintiff and the defendant claimed that his act was not direct. It was held that the defendants act and that he was liable. Another element in this tort is that, the plaintiff must also prove that the defendant acted voluntarily. This is because no battery is committed if there is an incident over which the defendant has no control. Thirdly the plaintiff must prove that there was lack of consent for the physical contact on him by the defendant. Thus where in Nash v sheen, the defendant Hairdresser applied to the plaintiffs hair a tone rinse, a dye which caused injury in the form of a rash, it was held that, an action will succeed in battery because the plaintiff consented to have permanent wave and not what gave her the injury. Fourthly, the plaintiff must prove that there was a physical contact with his body, again the plaintiff must show that the defendant acted positively but not an omission to act. In Innes v Wyle, it was held that, merely to obstruct the entrance to a room by standing still is not by itself enough to constitute a positive act. Finally battery like all trespass to the person is actionable per se and no proof of injury is required before an action can be sustained.

My advise to the parties is as follows:

1. X action to me was a direct act resulting in a physical contact and eye injury to B. B did not consent to such injury even though he gave the champagne to X2. But the facts of this case show that even though X acted positively he did so involuntarily. Since X had no control over his conduct, then it can be said that the injury was caused unintentionaly and without negligence3. Therefore my advise is that, no action can lie in battery as a trespass to the person.

Q – Assault

A comes to visit X daughter. As soon as X acertains that fact, he said to A “if you don’t leave my house at once, I’ll break your neck” . X son Osei, who heard about the presence of A also rushed into his fathers bedroom and took an unloaded double barrel gun belonging to his father and pointed it at A to leave or get shot.

A is very furious at the conduct of X and his son osei and wants to take any legal action against them.

Consider the liability if any of X and his son to A

Ans:

This question raises legal issues that could lead to an action in the tort of assault against X and his son Osei by victim A.

An assault strictly speaking is the putting of another person in reasonable fear of the immediate commission of battery by one who appears to have the power and intention to commit that battery. See Javis CJ., in the case of Read v Coker. Battery itself have been defined by Prof. Street in his book “on tort” as a direct physical contact made to the person of another either intentionally or negligently without his consent.

Considering the liability of X, the authorities are divided as whether or not words alone can constitute trespass to the person, and as such, fall within the tort of assault. In Meades Case, the defendants were antirevolutionaries engaged in trade malpractices. One night these men surrounded the plaintiffs house and started singing and chanting war songs. The plaintiff who felt threatened came out of his house and shot at one these revolutionaries. In his defense, he argued that he was compelled to take that cause of action because the defendants shouting at him constituted an assault on him. The court disagreed with the plaintiff holding that “no words or singing are equivalent to an assault” The second authority on this issue is R v Wilson where the defendant arrested a gate keeper but before that, shouted “get up your knives”. The gate keeper claimed that those words were an assault on his person and the court agreed because it was found that those words were capable of upsetting the gate keepers mental and emotional stability. There is a third authority in the case of Turberville v Savage which says that, words could not constitute an assault to the person but that if they were followed by a threatening approach from the defendant, then a successful action can lie in assault.

In the present case X did not accompany his words with any threathening conduct and so the rule in Turberville v Savage will not apply. But applying the rule of law in R v Wilson, I am of the humble opinion that an action will lie in the tort of assault because to threaten a person to break his neck when he is confined to your house is

really emotionally and mentally disturbing. And this view was stressed in the cased of Read v cooker, where the defendants men surrounded the plaintiff and threatened to break his neck if he refuses to leave the defendants store premises; and it held that the defendant intended to commit assault on the plaintiff.

In considering the liability of Osei, it has been held that pointing a firearm at a person will give cause to an action in assault because such an aggressive conduct can create such apprehensive feeling in the victim. It used to be the law in Blake v Barnard that if the firearm is not loaded, then no cause of action can arise int assault. But in the case of R v George this view was over ruled, and that if there is a short distance between the aggressor and the plaintiff, then pointing an unloaded gun can create that emotional and mental imbalance could give a good ground for an action in assault. In Osborn v Veitch, it was further qualified that if the gun was half corked then there is a conclusive evidence of assault against the person of the plaintiff. From the facts of this case, it is clear that Osei has also committed assault against A especially if we consider the way he rushed into the room and charged on him with a double barrel gun.

STREET ON TORT (BUY)