LAW OF TORT
Tort is a civil wrong which according to Sir F. Pollock defined as; an act which causes harm to a determinate person whether intentionally or not, not being a breach of a duty arising out of a person relationship or contract and which is either contrary to the law, or an omission of a specific legal duty, or violation of an absolute right.
- Prof. P. H. Winfield, Tortious Liability arises from breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.
- Sir John Salmond defined Tort as a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.
From the definition we can conclude the following characteristics about tort
- Tort is a private wrong, which infringes the legal right of an individual or specific group of individuals.
- The person, who commits tort is called “tort-feasor” or “Wrong doer”
- Tort litigation is compoundable i.e. the plaintiff can withdraw the suit filed by him.
- Tort is a species of civil wrong.
- Tort is other than a breach of contract
- The remedy in tort is unliquidated damages or other equitable relief to the injured.
Note; Liquidated damages should be distinguished from unliquidated damages.
Liquidated damages- this is a specified amount of compensation. The law is usually clear on what the liable party pays or the parties themselves have already agreed to the compensation Unliquidated damages- this kind of compensation is unspecified and the court will rely on the nature of the case to determine it.
NATURE OF TORT
This liability arises once there is a breach of duty which is primarily fixed by the law.
Generally the plaintiff has to prove that he suffered harm and there was violation of his legal rights. Some actions, however, are actionable per se, i.e, without proof of injury, e.g. trespass to land.
The liability and remedy of a party in torts will depend on the following general principles
- Damnum sine injuria (harm without legal injury)
This basically means the causing of damage without the violation of a legal right. Such a case is not a valid claim in the court of law. The fact that the man is injured by another man’s act does not by itself constitute a cause of action; this may be even if the injury causing act is intentional or deliberate. A violation of the legal right is required in order for a valid cause of legal action to exist.
In mogul steamship company v.mc Gregory gow and company , where a number of steamship companies conspired and drove another tea-carrier company out of business by offering lesser rates. Even though the plaintiff was financially injured, the House of Lords ruled that the other companies were entitled to indulge in such competitive practices and therefore there was no cause of action.
- injuria sine damnum (legal injuries without actual harm)
This refers to a situation where one suffers a violation of his legal rights without actual injury or damage, e.g. trespass to land in such instance the person is entitled to remedy. In Ashbay Vs. White, the defendant, a returning officer at a voting booth, wrongfully refused to register a duly tendered vote of the plaintiff, who was a qualified voter. The candidate for whom the vote was sought to be tendered was elected. So no loss was suffered by the plaintiff for rejection of his vote. The Court held that violation of the plaintiff’s right was an injury to him for which he must have a remedy without proof of actual damage.
Tortious liability can also be determined on the basis of the fault principles. In this case it is necessary to establish some fault on the part of the wrongdoer before he can be made liable. Fault principle is determined in three ways;
- Intention– where one does a wrongful act intending the consequences
- Recklessness– doing an act without regarding the consequences
- Negligence– this is doing something that a reasonable person would not do, or omitting an action that a reasonable person would do.
GENERAL DEFENSES IN TORTS
If one sues the other claiming that the other person has violated his rights and in so doing has committed a tort, then certain defenses are available to the defendant. The extent to which they apply against different torts, may, however, differ. Some of the defenses which can be used in torts are:
- Volenti non Fit Injuria
- Inevitable Accident
- Act of God
- Statutory Authority
- Volenti Non Fit Injuria
This refers to ‘voluntary taking of a risk’. It’s when a person chooses to be in the situation that causes the injury. For example, suppose you are a spectator at a cricket match , the batsman hits a six, and the ball lands on your head, then you cannot claim for compensation either from the stadium authorities or the batsman because when you took a seat in the stadium, you accepted the risks while sitting in the stadium. Therefore if the defendant can prove that the plaintiff voluntarily put himself in that situation, he can escape liability. The most important thing to remember is that the action must be voluntary i.e. with the informed consent of the relevant person.
There are two things which should be established in order to use this defense.
- a) That the plaintiff knew or could have expected the risks involved in such a situation.
- b) That the person agreed by a statement or conduct, to suffer the consequence of the risk without force or compulsion or threat.
- Inevitable accident
When an injury is caused to a person by an event that could not be foreseen and avoided despite reasonable care on the part of the defendant, the defense of inevitable accident can be used. For instance, by „inevitable’ it is not meant that the accident was bound to happen, but rather, that the accident could not have been avoided despite reasonable care.
Stanley v. Powell, (1891)
The plaintiff was employed to carry cartridges for a shooting party. A member of the party fired at a pheasant but the bullet, after hitting a tree, rebounded into the plaintiff’s eye. The plaintiff sued. Held: the defendant was not liable as the plaintiff’s injury resulted from an inevitable accident.
- Act of God
This defense is similar to the defense of inevitable accident according to me. The only difference is that in the defense of Act of God the accident happens to occur because of unforeseen natural event. The requirements which are to be satisfied are
(a) The injury most be caused by the effect of natural forces
(b) The natural forces must be unforeseen, or the effects must be unavoidable.
So even if a natural event like a storm is taking place, if one can take precautions and avoid the damage, the defense cannot be used.
Nichols v. Marsland, (1876)
The defendant had a number of artificial lakes on his land. An unprecedented rain such as had never been witnessed in living memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff’s were swept by act of God and the defendant was not liable.
- Self defense
If one injures someone, or something that belongs to someone else, while defending self or own property, then one can be excused if the force used to protect self was reasonable. For instance, if someone punches you on stomach and you shoot him that would be an excessive use of force which is not necessary for defending yourself.
The following must be satisfied in order to claim this defense:
- The defendant must be under threat or under attack
- The defense must be for self-defense and not for revenge
- The response must be proportional to the attack or threat.
The principle for this is that the law will not hold you responsible for an action that you performed in order to save or protect yourself. If, however, it was not necessary to use force for protection, the law will not protect, and you can’t use this defense.
Mistake is not usually a defense in tort law. It’s not good enough to say that you didn’t know you were doing something wrong. This defense can be used in case of malicious Prosecution. In malicious prosecution it must be shown that the prosecution was acting with malice.
In necessity, you have to show that the act you did was necessary in the circumstances. For instance, if one enters someone’s private land in order to collect water from his well to put out a fire in his house, that the person was prompted by necessity and the defense could be used in tort claim and it could be used against trespass of property. The level of necessity should be very high. Basically the wrong done should be smaller in comparison to the importance of right done.
Cope v. Sharpe (1912)
The defendant committed certain acts of trespass on the plaintiff’s land in order to prevent fire from spreading to his master’s land. The fire never in fact caused the damage and would not have done so even if the defendant had not taken the precautions he took. But the danger of the fire spreading to the master’s land was real and imminent. Held: The defendant was not liable as the risk to his master’s property was real and imminent and a reasonable person in his position would have done what the defendant did. In view of the difficulty posed by the above defence, it is not advisable for a defendant to rely solely on it, especially where there are other defences. It is safer to plead it as an alternative to another defence.
- Act under Statutory Authority
This defense is valid if the act done was under the authority of some statute. For example, if there is a railway line near your house and the noises of the train passing disturbs then you have no remedy because the construction and the use of the railway is authorized under a statute. However, this does not give the authorities the license to do what they want unnecessarily; they must act in a reasonable manner.
Voughan v. Taff Vale Railway Co. (1860)
A railway Company was authorized by statute to run a railway which traversed the
Plaintiff’s land. Sparks from the engine set fire to the plaintiff’s woods.
Held: that the railway company was not liable. It had taken all know care to prevent emission of sparks. The running of locomotives was statutorily authorized.
CAPACITY TO SUE OR BE SUED IN TORT
The general rule is that any person may sue or be sued in tort. All persons are subject to the same laws. However, some special rules apply in certain circumstances which restrict, forbid or qualify the right to sue or be sued. It means certain persons cannot sue, while some other persons cannot be sued.
Capacity means the capacity of parties or persons to sue or to be sued in law of torts. The capacity of various persons in the law of torts is explained as under:
- The Government
The Government Proceedings Act (Cap 40) makes the Government subject to liabilities in tort as if it were a private person mf full age and capacity. Section 4 (1) of this Act provides that the Government is liable.
- in respect of torts committed by its servants or agents;
- in respect of any breach of those dutie3 which a person owes to his servants or agents at common law by reason of being their employer; and
- In respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property.
- The Government is also liable for statuary torts i.e. torts arising from breach of a duty imposed by statute. However, the Government is not liable for anything done by any person when discharging any responsibilities of a judicial process (Sec. 4 (5).The Government is not also liable for torts committed by public officers who are appointed and paid by local authorities, or members of public corporations like Kenya Railways, Maize and Produce Board of Kenya e.t.c.
- Infants and Minors
At a general rule minority is no defense in tort. Infants can sue and `e sued in the same way as any other person. However, the age of an infant may be relevant in some torts where intentions, malice, or negligence of the wrongdoer are the main cause of the tort. In the case of negligence, the infant may not have reached the stage of mental development where it could be said that he should be found legally responsible for his negligent acts. A child may be also guilty of negligence if old enough to take precautions for his own safety.
- Husband and Wife
A married woman is liable in tort and may sue or be sued in tort in the same way as though she were a female sole (i.e. a single of unmarried woman). A wife can sue her husband in tort for the protection of her own property.
- The President
The Constitution of Kenya (Kenya 14) provides that the President of Kenya is not “liable to any proceedings whatsoever in any court.”It means that no civil or criminal proceedings can be instituted against the President while he is in office.
- Heads of State and Diplomats
The Heads of foreign states, diplomats of foreign missions and certain other persons connected to them are immune from the jurisdiction of the local courts. Their immunity is provided by the Vienna Convention of Diplomatic Relations, signed in 1961, the relevant articles of which are given the force of law in Kenya by “The Privileges and Immunities
Act (cap. 179)”. The accredited diplomats and their staff families enjoy immunity from the criminal and (subject to specified exceptions) from the civil and administrative jurisdiction of the local courts. The immunity does not extend to Kenyans who are employed by diplomatic missions. Representatives of the United Nations Organization and its specialized agencies can also claim diplomatic immunity. Although the diplomats and their staff cannot be sued under the law of tort but it is always open to the Ministry of Foreign Affairs to declare a diplomat ‘persona non grata’, thereby requiring his removal from Kenya.
The corporations can sue and be sued in their own names. They are liable to actions in tort. A corporation is also liable for torts committed by its servants and agents. But if a servant of a corporation commits a tort which is ‘ultra vires’ (beyond powers) then the corporation is not liable. Similarly, a corporation is not liable for some torts of personal nature e.g. personal defamation, battery e.t.c.
- Trade Unions
The trade unions have capacity to sue in tort but actions against them in tort are limited.
Section 23 of the Trade Unions Act (Cap. 233) provides that no action shall be brought against a trade union for torts committed by its members or officials in respect of any act done in contemplation or in furtherance of a trade dispute. For example, if a trade union calls a strike, it cannot be sued by an employer for the tort of inducing a breach of contract.
- Persons of Unsound Mind
These are generally liable in tort unless intent is a necessary element and their condition is such that they could not have formed such intent.
- Aliens or Non-Citizens
An alien is under no disability and can sue and be sued. However an enemy alien cannot sue, but if sued can defend himself.
- Judicial officers
Judicial officers are protected from civil liability for any act done or ordered by them in the discharge of their judicial functions. Thus, where a judge or magistrate utters words which tend to reflect on a person’s reputation, or orders a party’s property to be attached in satisfaction of a judgment-debt, no action can respectively be brought against him for trespass. Besides judicial officers, officers of the court are also protected against civil liability for acts done in pursuance of a judicial order or warrant. This means that a court broker cannot be sued for attaching property under a warrant dully issued by court, as long as he acts within the powers conferred on him by the warrant. The protection to judicial officers and officer of court is afforded by the Judicature Act (cap.8) Section 6.
There are four specific torts covered by law of tort namely:
This is one of most important torts in law. In Blyth v. Birmingham Waterworks Co.(1856) it was defined as; The omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do.
Elements of negligence
- Legal duty of care
- Breach of the legal duty of care
- Loss or damage to the plaintiff
These elements must be in place before the defendant can be liable
Duty of care
This is the duty to take reasonable care to avoid acts or omissions reasonable foreseeable as to likely cause injury to your neighbor, your neighbor being anyone likely to be affect by your actions or omission.
The duty of care principle should fit the three-part test..
- It was reasonably foreseeable that a person in the claimant’s position would be injured,
- There was sufficient proximity (closeness) between the parties,
- It is fair, just and reasonable to impose liability on the defendant.
All parts of the test must be satisfied if there is to be a duty of care owed by the defendant to the claimant. Each part must be explained and proved separately.
Breach of duty of care
This means falling below given standards of care. Standard of care means the standards through which the defendants conduct is measured. Breach of duty is measured objectively by the „reasonable man test‟. The reasonable man is the ordinary person performing the particular task: he is expected to perform it reasonably competently. Thus, when I am driving my car, I am expected to be a reasonably competent driver who can drive a car.
Injury to the plaintiff
Having given proof of the above two the plaintiff still has to prove that he/she suffered some injury before the defendant can be liable for negligence.
There are a number of tests that are used when assessing the injury such as;
The burden of proof in negligence
Generally the burden of proof in civil actions lies with the plaintiff. He has to prove that the defendant owe him a duty of care, that he breached it and this led into suffering. In certain cases however this isn’t so such as in the doctrine of Res ipsa loquitur.
Res ipsa loquitur translate to let the facts speak for themselves. It is applicable in situations where something happens in a way it ought not to have. It is applicable in negligence if;
- The thing that caused the injury was in control of the defendant or someone over whom the defendant exercises control
- The event wouldn’t have happened without negligence
- There is no way of explaining how it happened.
DEFENCES TO NEGLIGENCE
- Contributory negligence
This defense is available in circumstances in which the plaintiff is also to blame for the loss or injury. The defendant must adduce evidence to establish the plaintiff’s contribution.
The defendant must prove:-
- That the plaintiff exposed himself to danger.
- That the plaintiff was at fault or negligent.
- That the plaintiff’s fault or negligence contributed to his suffering.
Effect of contribution
It reduces the amount of damages recoverable by the plaintiff by the extent of his contribution. However, children of tender years are not guilty of contribution.
- Voluntary assumption of risk (volenti non fit injuria)
This defense is available in circumstances where the plaintiff with full knowledge of the risk voluntarily agrees to undertake the same. The defendant must prove
- That the plaintiff had actual knowledge of nature and extent of the risk
- That the plaintiff agreed to incur the risk voluntarily
- Statutory authority
If the conduct complained of by the plaintiff is authorized by statute and the defendant has acted in accordance with the provision of the statute the defendant has a complete defense to the plaintiff’s action.
However whether or not the defense is complete depends on the interpretation of the statute.
This tort is committed whenever a person is wrongfully disturbed in the use and enjoyment of his land. Generally, it arises from the duties owed by neighboring occupiers of land: no one should use in property in a way which is likely to affect his neighbor’s use of his own land. Thus, if A and B are neighbors, and A owns plot X while B owns plot Y, A may use plot X in any way he chooses but he must not in doing so affect B’s of plot Y, or else he will be liable in nuisance.
Although the tort of nuisance is usually committed only where the plaintiff and defendant are owners or occupiers of land, in certain circumstances the tort may be committed in places like a highway or even a river. There are two types of nuisance: private nuisance and public nuisance.
A private nuisance is committed where a person’s private rights in his land are wrongfully disturbed, whether physically or by allowing noxious things to escape out of his land. Thus, it is a nuisance to obstruct an easement or private rights of way; or to allow a weak structure to hang precariously above the plaintiff’s land, thereby creating a potential source of danger to the plaintiff; or to allow smoke, noise, gas, fumes e.t.c. to escape onto the plaintiff’s land thereby inconveniencing him e.t.c.
Public nuisance is also known as common nuisance. It affects the comfort and convenience of a class of persons but not necessarily every member of the public. Thus the obstruction of a highway is a public nuisance, and also a music festival accompanied by large scale noise. It is also a public nuisance to do any act which is a source of danger to the public e.g. releasing a large quantity of petrol onto the highway. In all these cases, it is not the private rights of an individual of the community around or the public at large. From what is stated above, it is clear that it would not be reasonable to allow an individual to bring an action to stop the nuisance. Indeed, a public nuisance is generally a criminal offence and only the Attorney General may bring an action against the wrongdoer. However, in exceptional the person creating such an act of nuisance, if he can prove that he has suffered some special damage over and above that suffered by the general public.
Soltan v. De Held, (18510
The plaintiff resided next to a Roman Catholic Chapel. The defendant, a priest, took it upon himself to ring the chapel bell throughout the day and night. The plaintiff brought an action to stop it. Held: The ringing of the bell was a public nuisance but since the plaintiff’s house was next to the chapel he suffered more than the rest of the community and was therefore entitled to bring an action to stop it.
Generally, nuisance is actionable only when it is a continuing wrong. A disturbance or inconvenience on an isolated occasion will not ordinarily be treated as a nuisance:
The Plaintiff in Nuisance
Since private nuisance generally covers only damage to property to its enjoyment, the plaintiff in an action brought to remedy a nuisance must show that he has title to, or at least some interest in the property which is alleged to have been damaged or whose enjoyment is alleged to have been affected by the nuisance, Otherwise, the action will not succeed.
The Defendant in Nuisance:
The person liable in nuisance is primarily the occupier of the premises which are the source of the nuisance, including a tenant; liability does not necessarily fall on the owner of the premises, although he too may be successfully sued:
Mint V. Good (1951)
A boy of 10 years was walking along a public footpath when the wall collapsed on him and injured him. The defendant, the owner of the premises from which the wall collapsed, had let the premises in question to tenants; but the plaintiff sued the defendant himself. Held: The defendant was liable.
- De Minimis Non Curat Lex (or Triviality);
A person aggrieved by a nuisance can only maintain an action where the damage suffered is so trivial, minor or negligible that no reasonable person would have cause to complain , no such action may be maintained; and if sued the defendant may plead ‘de minimis no curat lex’
- Reasonable Use of Property:
If the defendant can prove that the nuisance complained of resulted from a reasonable use of his property, but this defense is not available where the defendant’s act is proved to have been motivated by malice.
Note: whether the use to which the property was reasonable in the circumstances is determined from the standpoint of the victim of the nuisance, because the essence of this tort is that no person ought to be wrongfully disturbed in the use and enjoyment of his land.
A prescription right to continue a nuisance is acquired after twenty years. Thus, where a nuisance has been committed on the plaintiff’s land form a continuous period of twenty years, the plaintiff cannot thereafter maintain an action in respect of the nuisance; and if he does, the defendant may plead prescription in defense.
- Public Benefit:
Public benefit, as a defense to an action brought to remedy a nuisance, has only a limited application. Private rights must generally be respected. The only exception is where there is statutory authority to derogate from such rights. But even then there is need to act reasonably and within the statutory limit’ otherwise the person acting will be liable in nuisance, notwithstanding that his act was intended to benefit the public. Thus, where an authority had general powers to provide hospitals and it set up a fever hospital in a heavily populated area, it was held liable to people in the neighborhood (the hospital could have conveniently been set up elsewhere): Metropolitan Asylum District V. Hill (1891).
- General Defence:
This remedy is by way of self-help. A person aggrieved by a nuisance is at liberty to abate (or stop) it. But the act of abatement must be peaceful and, where feasible, after notice to the tortfeasor, otherwise, by a dramatic turn of events, the aggrieved party might, in attempt to abate nuisance, render himself liable in nuisance instead!
Chrisstle V. Aveyl (1893)
The plaintiff used to conduct music lessons in his rooms, which was adjacent to the defendant’s. The defendant, who was annoyed by the disturbance, continuously banged the partitioning wall so as to disrupt the plaintiff’s music lessons. Held: The plaintiff was entitled to an injunction to restrain the defendant from interrupting the music lessons.
This is a remedy which is granted to the plaintiff to restrain the defendant from committing the nuisance. It is awarded where the nuisance already exists or is impending.
By this remedy, the plaintiff is entitled to full compensation in monetary terms, so as to make good the damages caused by the defendant’s nuisance; as far as money can do it. But the plaintiff can only recover what was reasonably foreseeable as likely to result from the defendant’s act. In this connection, regard must be had to the gravity of the nuisance and the extent to which the defendant’s act can be said to have been unreasonable, or wrongful.
Trespass can be understood in the following three contexts or types;
- Trespass to land
- Trespass to person
- Trespass to goods
Trespass isn’t simply the unauthorized entry into someone’s property without permission, such definition limits the term to land and chattel. Trespass, specifically, is a negligent or intentional act made by individual that causes injury to another person or his/her property without lawful justification, no matter how slight. The use of the term “injury” here means a violation of one’s right and not necessarily actual physical harm or loss.
Generally speaking, trespass possesses four elements. These are the following:
- The fault must be an intentional or negligent act.
- The harm must be of direct interference with the person or property.
- The injury is inflicted on the plaintiff or his or her property.
- There is no lawful justification
TRESPASS TO LAND
This occurs whenever a person’s (plaintiff) possession in land is wrongfully interfered with. The key thing here is possession and not necessarily ownership and as such the plaintiff can be the owner or the tenant. It occurs in three ways;
- Trespass by wrongful entering on the plaintiff’s land. E.g, encroaching, walking through the land or putting your hand through their window without their permission
- Trespass by remaining on the land, that is, a person who, having been initially authorized to enter upon land, is later asked to leave it and he fails to do so in reasonable time he is said to trespass by remaining on the land.
- Trespass by placing things on the land.
It’s worth noting that this trespass is different from nuisance in that;
- The thing place on the land directly affects the plaintiff’s procession unlike nuisance which affects how they enjoy the property
- Nuisance unlike trespass is concerned with enjoyment and not possession
- Trespass to land is actionable per se, that is actionable without proof of injury unlike nuisance
Note- each time one repeats a trespass (continuing trespass) the court allows for fresh lawsuit.
DEFENSES TO TRESPASS TO LAND
The main defenses to an action for trespass to land are as under:-
Land acquired by possession is also said to been acquired by prescription .The new owner may plead title by prescription as a defense to an action brought by previous owner to recover the land. A defendant may also plead prescription, as by proving a right of common grazing or right of way over the Plaintiff’s land.
- Act of Necessity
The necessity may be pleaded as a defense to an action of trespass to land e.g. entry to put out fire for public safety
- Statutory Authority
Where the authority is conferred by law, whether by statute or by court order, this is also an available defense e.g. the authority of a court broker
- Entry by license
An entry authorized or licensed by the plaintiff is not actionable in trespass unless the authority or license given is abused.
REMEDIES TO TRESPASS TO LAND
The remedies in respect of trespass to land include:
The plaintiff may recover monetary compensation from the defendant,
The extent of which depends on the effect of the dependant’s act on the value of the land in question.
We saw earlier on that a person is entitled to use reasonable force to defend his property. Thus, where a person wrongfully enters or remains on another’s land, he may be ejected using reasonable force may entail liability for assaults an ejectment may also be based on a court order (an eviction order)
- Action for recovery of land
The plaintiff may bring an action to recover his land from the defendant Where there has been a wrongful dispossession, it is common for such action to be coupled with the above two remedies.
In addition to the above remedies, an injunction may be obtained to ward off a threatened trespass or to prevent the continuance of an existing one
- Distress Damage Feasant
In the case of trespass by placing things on land (or in the case of chattle trespass) the
Plaintiff has a right To detain the defendant‘s chattel or animal which is the cause of the trespass in question.
TRESPASS TO THE PERSON
This trespass just like trespass to goods also occurs in three ways;
This occurs when a person intentionally threatens to use force against another person without lawful justification hence putting the person in fear. E.g pointing a gun towards him
Rules of this Tort
- There must be some apprehension of contact
- There must be a means of carrying out the threat by the defendant
- The tort is actionable per se.
- The tort is generally associated with battery
- Mere words without body movement do not constitute assault.
Assault is constituted by:-
- A display or show of force
- Pointing of a loaded gun
- Cursing in a threatening manner
This is the actual use of force towards another person without lawful justification e.g. hitting a person. It is only actionable if it is voluntary or intentional.
Rules of battery
- Absence of the plaintiff’s consent
- The act is based on an act of the defendant mere obstruction is not battery
- A contact caused by an accident over which the defendant has no control is not battery
- There must be contact with the person of the plaintiff it has been observed the least touching of another person in anger is battery
- Battery must be direct and the conduct must follow from the defendant’s act
- The tort is actionable per se. The essence of battery is to protect a person from unpermitted contacts with his body. The principal remedy is monetary award in damages.
- FALSE IMPRISONMENT
This occurs when a person is deprived of their freedom without legal explanation, e.g locking someone in a room.
Main ingredients of false imprisonment
(a) Knowledge of the plaintiff
Knowledge of the restraint is not necessary but may affect the quantum of damages.
(b) Intention and directness
The tort is defined to exclude negligent imprisonment of another person. The tort must be intentional and should be committed directly. 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 plaintiff’s freedom of action
Rules of the tort
- The tort must be intentional
- It is immaterial that the defendant acted maliciously
- The restraint or confinement must be total. However, it need not take place in an enclosed environment
- It has been observed every confinement of a person is an imprisonment whether it is in a common prison, private house or in the stocks or even forcibly detaining one in the public
- 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.
- The imprisonment must be direct and the plaintiff need not have been aware of the restraint
- The tort is actionable per se.
- The principal remedy is a monetary award in damages.
- A parental Authority
A parent has a right to reasonably chastise or discipline his Children. This means that where a parent beats his child or locks Him up in room for sometime by way of reasonable chastisement, he cannot be sued for battery or false imprisonment .Similarly, if a parent gets a knife and threatens that he will cut off his child’s mouth unless the child stops abusing grown-ups, no action can be brought against him for assault When a child is at school all his parent’s right of ordinary control over him Are delegated to the school authority (or teachers) and are exercised by the Latter in ‘loco parents ‘.Reasonable chastisement by the school authority. e.g Reasonable punishment by teachers ,is not actionable in tort
Note: According to R.v (1891) a husband has no right to chastise
- Judicial authority:
An act done under order of court is not actionable as trespass. We show at the beginning of this chapter that acts done in a judicial Capacity are not actionable in tort. It follows that where a judge orders a corporal punishment of a number of strokes, no action for battery can be brought against him or a person administering the strokes .Also, statutory authority may be pleaded as a defense
An award of damages
- General Defenses the defendant may also rely on the general defenses already considered. Self-defense is a particularly viable defense to assault and battery. Volenti (or the plaintiffs consent), may also be pleaded Thus, a patient who has consented to a medical operation cannot round and sue the surgeon for trespass (battery).Similarly ,a spectator who suffers injury in the cause of a game whose rules are being followed cannot sue for trespass is the most obvious and usual remedy. The amount of damages awarded depends on the circumstance of each case, having regard (or in the case The amount of damages awarded depends on the circumstances of each case, having regard to matters like the injury suffered, the period of false imprisonment e.t.c.
- ii. Habeas Corpus:
The Writ of Habeas Corpus is a remedy to false imprisonment. The writ directs the person in show custody the applicant is detained to produce him before the High Court; the Court may order his release if it appears that there are not sufficient grounds for detaining him.
PROTECTION OF CHATTELS OR GOODS
Owners of goods are entitled to enjoy their possession and control and their use without any interference. To protect goods the common law developed 3 torts namely;
- Trespass to goods
This is the unlawful detention of goods. It is the oldest tort relating to the protection of the chattels and protects possession of goods by the owner. The plaintiff must prove:-
- Right to immediate possession
- That the defendant detained the goods after the plaintiff demanded their return. The plaintiff is entitled to damages for the detention.
TRESPASS TO GOODS
This is the intentional or negligent interference of goods in possession of the plaintiff. This tort protects a party interest in goods with regard to retention their physical condition and invariability.
Types/forms of trespass
- Taking a chattel out of the possession of another
- Moving a chattel
- Contact with a chattel
- Directing a missile to a chattel
Rules/requirements of the tort
- The trespass must be direct
- The plaintiff must be in possession of the chattel at the time of interference
- The tort is actionable per se
- The principal remedy is a monetary award in damages
The defenses available to this tort include:-
- Plaintiff’s consent
This is the intentional dealing with goods which is seriously inconsistent to possession or right to possession of another person. This tort protects a person’s 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 cans 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
- Taking goods or disposing; it has been observed that to take a chattel out by another’s possession is to convert it or seize goods under a legal process without justification is conversion.
- Destroy or altering
- Using a person’s goods without consent is to convert them
- Receiving: the voluntary receipt of another’s goods without consent is conversion.
This constitutes publication of false statement about a person which ends up lowering the person’s reputation in the estimation of right-thinking members of society, without
Elements of defamation
- The defendant must have made a false statement
- The statement must be defamatory, that is, arouse some form of ridicule or contempt from the right thinking members of the society
- The statement must refer to the plaintiff
- The statement must be made public
Types of defamation
The tort of defamation is of 2 kinds:
- a) Libel
- b) Slander
This is a non-permanent form of defamation, usually by word of mouth. This kind of
defamation is actionable upon proof of damage. Though there are some exceptions such as;
- Where the statement imputes a criminal offence punished by imprisonment
- Where the statement imputes a contagious disease on the plaintiff
- Where the statement imputes unchastity on a woman
- Where the statement imputes incompetence on the plaintiff in his trade, occupation
This is a permanent form of defamation in the sense that the statement is printed or
documented. It is actionable per se, that is, without proof of damage.
Note; defamation made in relation to a group isn’t always actionable e.g all lawyers are
liars. This is different if you say students in school x are liars coz then they can sue
There are however clear differences between Libel and Slander;
- Libel is defamation in permanent form whereas Slander is defamation in transient
- Libel is not merely actionable as a tort but is also a criminal offence whereas Slander
is a civil wrong only.
- All cases of Libel are actionable per se but Slander is only actionable on proof of
actual damage with 4 exceptions under the Defamation Act, which are actionable per se.
CASES OF SLANDER THAT ARE ACTIONABLE PER SE:
- Imputation of a Criminal Offence
Where the defendant makes a statement, which imputes a criminal offence punishable with imprisonment under the Penal Code, then such Slander will be actionable per se. There must be a direct imputation of the offence and not merely a suspicion of it and the offence must be punishable by imprisonment in the first instance.
If the Slander goes into details of the offence, it is not actionable per se if the details are inconsistent with another.
- Imputation of a contagious or infectious disease
This is actionable per se as it is likely to make other people to shun associating with the
plaintiff. This exception always includes sexually transmitted diseases and in olden times the diseases of plague and leprosy.
- Imputation of unfitness, dishonesty or incompetence in any office, profession,
calling, trade or business held or carried on by the plaintiff at the time when the
Slander was published
This is the most important exception under the Defamation Act, 1952 (English) Section2
Provides “in an action of Slander in respect to words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication, it shall not be necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, calling, trade or business.”It follows that any words spoken of a man which are reasonably likely to injure him in his office, profession, calling, trade or business will be actionable per se. It matters not how humble the office may be, so long as it is lawful.
- Imputation of unchastity or adultery of any woman or girl
Words spoken and published which impute unchastity or adultery to any woman or girl shall not require proof of special damage to render them in actionable.
In Kerr v. Kennedy, the court was of the opinion that the term “unchastity” includes
- Justification or pleading that it’s the truth
- Fair comment made as a matter of public interest
- Absolute privileges- certain statements such as those made by judges in courts are
not actionable since they are said to be absolute privilege
- Qualified privilege – when a person who makes the communication has a moral duty
to make it to another person who is interested in hearing it, this is qualified privilege
e.g a preacher call the congregation sinners during a service
- Offer of amends or apology
- Injunction to stop it
LIABILITIES IN TORT
There are four types of liabilities in tort namely:
- Personal liabilities
- Occupiers liability
- Vicarious liability
- Strict liability
Occupiers’ liability generally refers to the duty owed by land/premise owners to those who come onto their land. However, the duty imposed on land/premise owners can extend beyond simple land ownership and in some instances, the landowners may transfer the duty to others, hence the term occupier rather than owner.
The law relating to occupiers’ liability has distinct English origin;
- Occupiers‟ liability act 1957- which imposes an obligation on occupiers with regard to ‘lawful visitors’
- Occupies‟ liability act 1984- which imposes liability on occupiers with regard to persons other than ‘his visitors’ In Kenya the law relating to this is contained in The Occupiers‟ Liability Act (cap.34)
What is expected of the occupier?
- The occupier owes common duty of care to all of his visitors, i.e. “The common duty of care is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”
- Visitors are persons who have express or implied permission to enter or use the premise of a person. Lawful visitors to whom occupiers owe the common duty of care for the purposes of the Occupiers Liability
- Invitees – those who have been invited to come onto the land and therefore have express permission to be there
- Licensees – those who have express or implied permission to be there
- Those who enter pursuant to a contract – For example paying guests at a hotel or paying visitors to a theatre performance or to see a film at a cinema.
- Those entering in exercising a right conferred by law – For example a person entering to read the electricity meters.
- The standard of care varies according to the circumstances. The legislation refers to two particular situations where the standard may vary:
- An occupier must be prepared for children to be less careful than adults
- An occupier may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it
- The occupier is not liable for the negligence of an independent contractor ones he is satisfied that the contractor was competent.
- The common duty of care does not impose on an occupier any obligation to a visitor who has willingly accepted a risk.
Can the occupier be liable to persons other than his visitors?
At common law, The Occupiers Liability Act 1984 imposes a duty on occupiers in relation to persons “other than his visitors”. This includes trespassers and those who exceed their permission, though a low level of protection is offered.
The circumstances giving rise to a duty of care
If all three of these are present the occupier owes a duty of care to the non-lawful visitor.
- He is aware of a the danger or has reasonable grounds to believe that it exists
- He knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come into the vicinity of the danger
- The risk is one in which in all the circumstances of the case, he may reasonably be expected to offer the other some protection
- Volenti non fit injuria- the common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted by the visitor.
- Contributory negligence-Damages may be reduced where the visitor fails to take reasonable care for their own safety.
- Exclusion of liability-allows an occupier to extend, restrict, exclude or modify his duty to visitors in so far as he is free to do so.
- The occupier employed a competent independent contractor
Generally each person is liable for his or her own torts. There are circumstances however, that another person may be held liable for torts committed by another. This is referred to as vicarious liability. This mostly tend to occur in employment scenarios
The following must exist to establish liability;
- There must be a master/servant relationship between the parties concerned
- The servant must have been acting in the course of employment at the material
Who exactly is a servant?
Masters/Employers will only be liable for the torts of their employees/servants. They will not usually be liable for the torts of their independent contractors. It is therefore necessary to establish the status of the tortfeasor.
The control test
In this case a servant is defined as someone over whom the master has control over, i.e. someone employed over a contract of service. While an independent contractor is someone who is under a contract for service in which case such a person work using their own judgment?
In Collins v Hertfordshire, Hilbery J said: “The distinction between a contract for services and a contract of service can be summarized in this way: In one case the master can order or require what is to be done, while in the other case he can not only order or require what is to be done, but how it shall be done.”
The nature of the employment test
One accepted view is that people who have a ‘contract of service’ (an employment contract) are employees, but people who have a ‘contract for services’ (a service contract) are independent contractors.
What is “course of employment?”
An acts done under the course of employment where it is proved to have been authorized by the master.
An employer will usually be liable for
- Wrongful acts which are actually authorized by him.
- Acts which are wrongful ways of doing something authorized by the employer, even if the acts themselves were expressly forbidden by the employer
THE INDEMNITY PRINCIPLE
There is a term implied at common law into contracts of employment that an employee will exercise all reasonable care and skill during the course of employment. An employee who is negligent is in breach of such a term and the employer who has been held vicariously liable for the tort may seek an indemnity from the employee to make good the loss.
LIABILITY IN RESPECT OF AN INDEPENDENT CONTRACTOR
The employer is generally not liable for torts committed by an independent contractor. The employer is however liable if he is deemed to have committed the tort.
This may occur in the following instances:
- Whether the employer has authorized the commission of the tort
In many circumstances, the law will attribute to a man the conduct of another being, whether human or animal, if he has instigated that conduct. He who instigates or procures another to commit a tort is deemed to have committed the tort himself.
- Torts of Strict Liability
The employer is liable in those circumstances e.g. in Rylands-v-Fletcher the employer was held liable for the acts of his independent contractors as this was a case of strict liability. These in torts of strict liability, the employer will be liable even where the tort e.g. the escape is caused by the negligence of an independent contractor.
When there is an element of personal negligence on the part of the employer as to make him liable for the acts of an independent contractor. E.g. Where the employer is negligent or careless in employing an independent contractor for instance, where the contractor is incompetent.
Failure to provide precaution in a contract where there is risk of harm unless precaution is taken can make the employer liable for the tort of the contractor.
- Where the Duty of Care Is Wide
An example is where the independent contractor is dealing with hazardous circumstances, or works which from their very nature, pose danger to other persons.
GENERAL GUIDELINE IN DETERMINING WHETHER AN ACT WAS
COMMITTED DURING THE COURSE OF EMPLOYMENT
- Look at the mode of doing the work the servant is employed to do
In Century Insurance C v. Northern Ireland Road Transport Board, one of the respondent’s employees was delivering petrol to garage. While the petrol was flowing from the lorry to the tank, he lit a cigarette and negligence threw away the lighted match which caused an explosion damages the appellant’s property. The action of the employee was treated as being within the course of employment. On appeal it was held that the respondents were liable for the damage caused for such an action, whilst for the comfort and convenience of the employee could not be treated as isolated act as it was a negligent method of conducting his work.
- Whether the act was authorized within the limits of time and space e.g. if one is employed to work between 8.00 a.m. and 5.00 p.m., the master is only liable for torts committed within that time frame.
Ruddiman & Company v. Smith, the plaintiff was using the lower room of the defendant’s House while the defendant used the upper room for carrying on business. In the upper room there was a lavatory. The clerk, after duty, went to the lavatory to wash his hands but on turning on the tap and finding no water, went away without turning the tap off. When water turned on the morning, it overflew into the lower room and damaged the plaintiff goods.
Held: The employer was liable for whether or not the use of the lavatory. Within the scope of the clerk’s employment, it was an event incidental to his employment.
- Whether the act was the initiative of the servant or the master had a certain control.
In Warren v. Henlys Ltd, erroneously believing that the plaintiff had to drive away from the garage without paying or surrendering coupons for petrol which had been put in the tank of his car, a petrol pump attendant used violent language to him.
The plaintiff paid his bill and gave the necessary coupons and after calling the police, told the attendant that he would report him to his employers.
The pump attendant then assaulted and injured him. In an action for personal injuries against his employers.
It was held that the defendants were not liable for the wrongful act of their employee. Since the act was one of the personal vengeances and was not done in the course of employment; it not is an act of a class which the employee was authorized to do or a mode of doing an act within that class.
- Where there is an express prohibition
An express prohibition does not negate liability i.e. a master does not escape liability simply because he had an express prohibition. For liability to be determined, two factors are considered:
- Whether the prohibition limits the sphere of employment. If it does, the master is not liable for an act done outside the sphere. (Sphere).
- Where the prohibition deals with the contract within the sphere of employment. If it does, the employer will be liable. (Mode)
- Whether the act was a deliberate criminal act
In Lloyd-v-Grace Smith & Co., the plaintiff had sought advice from the defendants, a firm of solicitors, whose managing clerk conducted conveyance work without supervision. He advised the plaintiff to sell some property, fraudulently persuading her to sign certain documents that transferred the property to him. He disposed of it and kept the proceeds. Held: Even though the fraud had not been committed for the benefit of the employers, nevertheless they were liable, for the clerk had been placed in position to carry over such work and had acted throughout in the course of his employment.
This principle is subject to the following exceptions
1) Cases where the employer is under some statutory duty which he cannot delegate
2) Where the employer retains his control on the contractor
3) Where the contract becomes a tort such as nuisance
4) Where the rule in Ryland v Fletcher (1866) applies
Generally emphasis has been placed by courts on fault based liability. Strict liability is an exception to this principle. This is liability without fault. Where torts are of strict liability there is no need for the plaintiff if to prove fault on the defendant’s part.
It is important to distinguish strict liability from absolute liability. In absolute liability, a particular wrong is actionable without proof of fault and in addition there is no defense availed to the wrongdoer. In strict liability however, the wrongdoer has a number of defense availed to him/her, hence the difference between the two.
Strict liability is clearly brought out in the following case;
Rylands v. Fletcher (1866)
The defendant owned a mill and constructed a reservoir on their land. The reservoir was placed over a disused mine whose passages communicated with the adjoining mine of the plaintiff. The defendant was not aware of this fact and therefore took no precaution against it. Water from the reservoir filtered through to the disused mine shafts and then spread to a working mine owned by the claimant causing extensive damage. Held: The defendants were strictly liable for the damage caused by a non- natural use of land. It was immaterial that there was no fault on their part. The following statement made by Lord Cranworth, explains the rule behind this case; “If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.” Liability under Rylands v Fletcher is now regarded as a particular type of nuisance. It is a form of strict liability, in that the defendant may be liable in the absence of any negligent conduct on their part. Imposing liability without proof of negligence is controversial and therefore a restrictive approach has been taken with regards to liability under Rylands v Fletcher, It is worth noting that the rule refers to anything likely do mischief, this poses its own challenges.
THE RULE IN RYLANDS v. FLETCHER
Anyone who in the course of non – natural use of his land, accumulates thereon for his own purposes anything likely to do mischief if it escapes is answerable for all direct damage thereby caused. This may be regarded as the “rule in Rylands v. Fletcher’
REQUIREMENTS OF THE RULE IN RYLANDS v. FLETCHER
- THE THING
The rule does not require that the thing should both likely to escape and likely to do mischief on escaping. If this were the case, there would be little difference between the rule in Rylands v.Fletcher and negligence. Furthermore, in Rylands v. Fletcher,the thing need not be dangerous in itself. The most harmless objects may cause damage on escape from a person land.
The rule has been applied to a large number of objects including water, gas, electricity,
explosives, oil, vibrations, poisonous leaves of trees, a flag post, a revolving chair at a fair ground, acid smuts from a factory, a car, fire and even at one time gypsies.
The thing must be brought into the land for the defendant’s purposes. The defendant need not own the land into which the thing is brought.
A temporary occupier of land such as a lessee or a person physically present on the land but not in legal occupation of it such as a licensee is equally within the scope of the rule and is liable for damage caused upon escape or a thing he has brought onto the land. The requirement that the thing should be on the land for the purpose of the defendant does not mean that it must benefit the defendant.
Where the thing is naturally present on the defendant cannot be liable for its escape under Rylands-v-Fletcher. The escape of weeds, rocks and floodwater is thus outside the scope of the rule but recent decisions have established possibility of an action in nuisance for such escape.
The accumulation must thus be voluntary.
- NON-NATURAL USER OF LAND
This is the most flexible and elusive ingredient of liability. Blackburn J. understood”natural‟ to mean things naturally on the land and not artificially created. However uncertainty crept as a result of Lord Cairns qualification that must be „a non-natural user‟ of the land. Through a series of cases, courts have come to look upon „natural‟ as signifying something which is ordinary and usual even though it might be artificially instead of non-artificial
There is no liability under the rule unless there is an escape of the substance from the land where it is kept.. The House of Lords defined escape as: “Escape from a place where the defendant had occupation and control over land to a place which is outside his occupation or control.”
It was stated further in this case that Rylands-v-Fletcher is conditioned by 2 elements;
- The condition of escape from the land of something likely to do mischief if it escaped.
- The condition of non-natural user of the land.The House of Lords emphasized that the absence of an escape was the basis of theirdecision in this case.
Rylands –v-Fletcher is not actionable per se and therefore there must be proof of actual
damage. This appears to mean actual damage to person or property and it excludes a mere interference with the plaintiff’s enjoyment of this land, such as would be a ground in an action in nuisance. Damage recoverable under the rule is limited to damage to person or property.
Requirement for strict liability to be applicable;
- Accumulation on the defendant’s land
The defendant must bring the hazardous material on to his land and keep it there. If the thing is already on the land or is there naturally, no liability will arise under. The thing must be accumulated for the defendant’s own purposes and the thing that escapes need not be the thing accumulated.
- A thing likely to do mischief
The thing need not be essentially hazardous, it should only be a thing likely to cause damage if it escapes
- No for Escape
There must be an escape from the defendant’s land into the plaintiff. An injury inflicted by the accumulation of a hazardous substance on the land itself will not invoke liability under Rylands v Fletcher.
- Non-natural use
The defendant must be using his land in a way that is not ordinary
- Remoteness of damage
Liability in Rylands v Fletcher is subject to the rules on remoteness of damage.
Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. Remoteness of damage is often viewed as an additional mechanism of controlling tortious liability. Not every loss will be recoverable in tort law. Originally a defendant was liable for all losses which were a direct consequence of the defendant’s breach of duty. This was largely considered unfair as a defendant could be liable for damage which was not foreseeable and therefore could not take steps to prevent it.
DEFENSES IN RYLAND V FLETCHER
- Plaintiffs fault. Where the escape in question resulted from some fault on the part of the plaintiff this may be used as a defense.
- Act of stranger – If the escape was caused by the act of a stranger over which the defendant has no control, the defendant will escape liability.
- Act of God – An act of God is an event which ‘no human foresight can provide against, and of which human prudence is not bound to recognise the possibility’
- Consent/benefit- If the claimant receives a benefit from the thing accumulated, they
may be deemed to have consented to the accumulation:
LIMITATION OF ACTIONS
Actions of Contract and Tort and Certain Other Actions
Actions of contract and tort and certain other actions
- The following actions may not be brought after the end of 6 years from the date on which the cause of action accrued—
- actions founded on contract;
- actions to enforce a recognizance;
- actions to enforce an award;
- actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;
- Actions including actions claiming equitable relief, for which no other period of limitation is provided by this limitations Act or by any other written law.
- An action founded on tort may not be brought after the end of 3 years from the date on which the cause of action accrued:
- Provided that an action for libel or slander may not be brought after the end of 12 months from such date
- An action for an account may not be brought in respect of any matter which arose more than 6 years before the commencement of the action.
- An action may not be brought upon a judgment after the end of 12 years from the
- date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of 6 years from the date on which the interest became due.
- An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of a written law may not be brought after the end of two years from the date on which the cause of action accrued.
- This section does not apply to a cause of action within the Admiralty jurisdiction of the court which is enforceable in rem, except that (i) above applies to an action to recover seamen’s wages.
Action for contribution from tortfeasor
Where under section 3 of the Law Reform Act (Cap. 26), a tortfeasor (in this section referred to as the first tortfeasor) becomes entitled after the commencement of this Act to a right to recover contribution in respect of any damage from another tortfeasor, an action to recover contribution by virtue of that right shall not be brought after the end of 2 years from the date on which that right accrued to the first tortfeasor.
For the purposes of these rules, the date on which a right to recover contribution in respect of any damage accrues to a tortfeasor shall be ascertained as follows—
- if the tortfeasor is held liable in respect of that damage by a judgment given in civil proceedings or by an award, the relevant date is the date on which the judgment is given, or the date of the award, as the case may be;
- if, in a case not falling within the above rule, the tortfeasor admits liability in favour of one or more persons in respect of that damage, the relevant date is the earliest date on which the amount to be paid by him in discharge of that liability is agreed by or on behalf of the tortfeasor and that person, or each of those persons, as the case may be, and for the purposes of this subsection no account shall be taken of any judgment or award given or made on appeal in so far as it varies the amount of damages awarded against the tortfeasor.
- extension of limitation period in case of disability does not apply to an action by virtue of this section unless the plaintiff proves that the person under the disability was not, at the time when the right to recover contribution accrued to him, in the custody of a parent, and where the section does so apply it shall have effect as if the words “six years” there were replaced by the words “two years”.
Successive conversions and extinction of title to converted goods
Where any cause of action in respect of the conversion or wrongful detention of movable property has accrued to any person and, before he recovers possession of the property, a further conversion or wrongful detention takes place, no action may be brought in respect of the further conversion or detention after the end of three years from the accrual of the cause of action in respect of the original conversion or detention.
Where any such cause of action has accrued to any person and the period of limitation prescribed for an action thereon and for an action in respect of such a further conversion or wrongful detention as aforesaid has expired and he has not during that period recovered possession of the movable property, the title of that person to the property is extinguished.