WHAT IS A TORT?
A tort is a civil wrong other than a breach of contract whose remedy is a common law action for damages or other relief. However, not every wrong is a tort. A single action may give rise to a tort and a crime.
The law of tort protects various personal and proprietary interests.
Tortious liability arises from the 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.
TORT AND CRIME DISTINGUISHED
It is a wrong redressable by an action for unliquidated damages.
The party suing is an individual or private person.
It is a wrong the action of which involves punishment.
Almost always the party suing is the state.
THE PARTIES TO A SUIT (CAPACITY / LEGAL LIABILITY IN TORTS)
At common law no action in tort lay against the state (crown) for wrongs expressly authorized by the crown or for wrongs committed by its servants in the course of their employment.
However, under the Government Proceedings Act1, the Government is liable for tortious acts. Section 4(2) provides; “Subject to the provisions of this Act, the government shall be subject to all those liabilities in tort to which if it were a full person of full age and capacity it would be subject;
i. In respect of torts committed by its servants or agents.
ii. In respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer.
iii. In respect of any breach of duties attaching at common law to the ownership occupation, possession or control of property.
However, Section 13A provides that before one can sue the government he must give a 30 days notice.
Dorset Yatch Co Ltd v Home Office
Facts: An action was brought by owner of property against the home office in respect of damage to his property done by runaway borstal boys. Seven borstal boys ran away one night when the three officers in charge of them were, contrary to instructions, all in bed. They boarded one of the many vessels in the harbour, started it and collided with the plaintiff’s yacht, which they then boarded and damaged further. The defendant (Home Office) was held liable for not protecting the plaintiff from the ravages of the borstal boys.
FOREIGN GOVERNMENTS / SOVEREIGNS
Diplomats and foreign sovereign states enjoy absolute immunity to criminal and civil liability before a Kenyan court unless the immunity had been waived by submission to Kenyan Jurisdiction (under the Vienna Convention on Diplomatic Relations, 1961).
This applies only where the act was done in the exercise of the sovereignty of the state. Immunity ceases when one engages in private and commercial venture. Immunity can be waived leading to a person being charged.
May sue or be sued for torts committed.
After an early period of uncertainty the common law adopted 21 years as the age of majority for most purposes and it remained at this until 1970 when it was reduced by statute to 18 years.2
A minor can sue and be sued for tort. A minor can however not sue or be sued in his own name but by his “next friend” (guardian ad litem3).
In the law of tort there is generally no defense of minority and a minor is as much liable to be sued for his tort as is an adult. In Gorely v Codd (1967), the defendant, a 16 ½ year old boy was held liable when he accidentally shot the plaintiff with an air rifle in the course of lurking about.
Minority however may be a defense in an action for the tort of negligence or malice. This is to be inferred from the fact that a young child may well be incapable of the necessary mental state for liability in such torts.
In an action for negligence against a young child, therefore, it is insufficient to show that he behaved in a way which would amount to negligence on the part of the adult. It must be shown that his behaviour was unreasonable for the child of his age.
Parents are not liable for the torts of their children, but in situations where it is established that the child was under control of the parent the commission of the tort by the child will result to liability of the parent.
• Persons Of Unsound Mind
Liability depends on whether the person knew what he was doing when he committed the tort. This can be proven by a psychiatrist.
In Morris v. Mardsen (1952), the defendant rented a room at a hotel. While there he attacked the manager of the hotel. At that time he was suffering from a disease of the mind. It was established that he knew the nature and quality of his act, but he did not know that it was wrong.
It was held that as the defendant knew that nature and quality of his act, he was liable in tort for assault and battery. It was immaterial that he did not know what he was doing was wrong.
Unsoundness of mind is thus certainly not itself a ground of immunity from liability in tort, and it is submitted that the true question in each case is whether the defendant was possessed of the requisite state of mind for liability in the particular tort in which he is charged.
Husbands And Wives
Married women can sue and be sued for torts committed according to the 1935 Law Reform (Married women and tort feasors ) Act.
The Law now recognizes women as Femme Sole (having legal capacity to sue and be sued). Under common law the wife was never liable for her torts but her husband was liable for both his torts and those of his wife.
A corporation can sue and be sued in its own name for torts committed, but there are some torts which, by their nature, it is impossible to commit against a corporation, such as assault or false imprisonment.
A corporation can sue for the malicious presentation of a winding–up petition or defamation, though the precise limits of the latter are unclear.
Liability of Corporations is however limited. Thus if a servant commits a tort that is ultra vires the corporation then the corporation is not liable.
• Unincorporated Associations
These cannot sue or be sued for torts committed but they can institute a representative suit. The members of the association are not liable for the torts of the association but the individual members are liable for their own torts.
They are personally liable for their own torts. They can sue and be sued by writing down all the names of the partners and of that partnership.
Each and every partner is liable for a tort committed in the course of the business. It was so held in Hamlyn v. Houston (1903).
A friendly alien has no disability and has no immunity. An alien enemy is one whose state or sovereign is in war with the sovereign of the state in question. As thus defined an alien enemy unless he is within the realm of license of the sovereign cannot sue in the sovereign‟s courts.
He can however be sued and can defend an action and if the decision goes against him, he can appeal.
GENERAL DEFENCES IN TORT LAW
1. PLAINTIFF‟S DEFAULT/CONTRIBUTORY NEGLIGENCE
This defence may be relied upon if the plaintiff is also to blame for his suffering. The defendant must prove that:
i. The plaintiff exposed himself to the danger/risk by act or omission
ii. The plaintiff was at fault or negligent
iii. The plaintiff’s negligence or fault contributed to his suffering
This defence doesn’t absolve the defendant from liability. It merely reduces the amount of damages payable by the defendant to the extent of the plaintiff‟s contribution.
This defence is unavailable if the plaintiff is a child of tender years.
If the plaintiffs were to sue and the defendant proved that the plaintiff was on the wrong, that can constitute a defense. Under Common Law, if a person contributed to a tort, that prevented him from suing. It was a complete defence.
The law was however changed by statute under the Common Law Reform Act of 1945. A plaintiff on the wrong can recover as long as he has not contributed to 100% to the tort. Thus if he has contributed 40% he can recover 60%.
2. ACTS OF GOD
Where damage is caused directly by natural circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility, the defense of act of God applies.
For this defense to succeed it must be shown that the act was not foreseeable and that it was unusual.
3. 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
a) That the plaintiff had actual knowledge of nature and extent of the risk.
b) That the plaintiff agreed to incur the risk voluntarily as was the case in Tugwell VBurnett.
It may be relied upon if the tort complained of was necessary to protect the society. It is usually relied upon by the state for acts taken to protect the society at large as the interest of the public prevail. (solus populi suprema lex)
The critical thing is that the act done has to be reasonable. Necessity is limited to cases involving an urgent situation or imminent peril. The measures taken must be reasonable and this will depend on whether there is human life or merely property in danger.
5. STATUTORY AUTHORITY
This defense may be relied upon by the defendant (usually the State or its agents) if the nuisance is authorized by statute. The defendant has a complete defense only if he can prove that he acted in accordance with the provisions of the Act. Whether the defence succeeds or not depends on the interpretation of the Statute
In the words of Anderson B in Blyth v Burmingham Water Works Co. negligence is the omission to do something which a reasonable man guided upon those regulations which ordinarily regulate the conduct of human affairs would do or do something which a reasonable and prudent man would not have done.
ELEMENTS OF NEGLIGENCE
The tort of negligence consists of three elements which a plaintiff must prove in any action based on negligence.
1. Legal duty of care.
2. Breach of duty.
3. Loss or damage.
LEGAL DUTY OF CARE
The plaintiff must prove that the defendant owed him a duty of care in the circumstances. The circumstance must have been such that the defendant knew or ought to have known that acting negligently would injure the plaintiff.
Who owes another a legal duty of care?
As a general rule every person owes his neighbour a legal duty of care.
In the words of Lord Atkin in Donoghue v Stevenson (1932), a person owes a duty of care to his neighbours. This is the so-called neighbour principal. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour?
The answer seems to be persons who are so closely and directly affected by my acts that I ought to reasonably have them in contention as being so affected when am directing my mind to the acts or omissions which are called into question.
Whether a person owes another a duty of care will depend on whether such a person could reasonably have foreseen injuring the other.
Standard of care
As a general rule the standard of care expected of the defendant is that of a reasonable man of reasonable prudence. This is a person who has the minimum information and knowledge necessary to act reasonably in any situation.
Where professionals and experts are involved the standard of care is that of a reasonably competent professional.
The concept of reasonable man is an artificial concept developed by law to promote objectivity.
It is independent of personal subjectivity and prejudices.
These are circumstances in which a defendant does not owe a plaintiff a duty of care. In such circumstance the plaintiff cannot sustain an action against the defendant irrespective of negligence.
In Kings v. Phillips where an expectant mother suffered nervous shock by reason of hearing the son‟s scream while 70 yard s away, it was held that she could not recover since the defendant driver owed her no legal duty of care.
In Bourhill v. Young an expectant mother suffered a nervous shock on hearing a loud band and seeing a pool of blood as a result of an accident caused by a negligently ridden motorcycle. It was that she could not recover since the motorcyclist could not have reasonably foreseen her suffering.
BREACH OF DUTY
The plaintiff must prove that the defendant acted negligently thereby breaching his legal duty of care. The plaintiff must prove specific acts or omissions the part of the defendant. The plaintiff must adduce evidence to prove his case.
However in certain circumstances negligence is proved without evidence. These cases are referred to as Res ipsa loquitor which literally means “it speaks for itself”.
This is a rule of evidence by which the plaintiff is deemed to have established negligence on the part of the defendant without adducing any evidence.
Requirements of Res Ipsa
Absence of explanation; the plaintiff has no evidence on the negligent acts or omissions of the defendant.
Such a thing does not ordinarily occur when proper care is taken
The instrument or object which causes the harm was exclusively within the control of the defendant or his servants or his agents.
In Scott v London and St Catherine’s dock the plaintiff a custom’s officer was injured by sugar bags falling on him inside the defendant’s warehouse. It was held that the principle of Res ipsa applied and he did not have to prove negligence on the part of the defendant.
Effects of Res Ipsa
1. It provides prima facie evidence on the part of the defendant
2. It shifts the burden of proof from the plaintiff to the defendant and if the defendant‟s explanation is credible the plaintiff loses the case
LOSS OR DAMAGE
The plaintiff must prove that as a result of the defendant’s breach of duty he suffered loss or damage.
The plaintiff’s loss must be traceable to the defendant’s breach of legal duty, failing which the plaintiff’s damage is deemed to be remote and therefore irrevocable.
The defendant is reasonably liable for any loss which is reasonably foreseeable from his acts or omissions. It was so held in The Wagon Mound II.
Question has arisen as to what losses the defendant must have foreseen and courts have taken the view that as long as some loss is foreseeable the defendant is liable for any loss.
In Bradford v. Robinsons Rental Co. Ltd, where the plaintiff was exposed to extreme cold and fatigued, in the course of his employment by his employers and as a consequence suffered from frost bite, it was held that the defendants were liable, since his suffering from frost bite was reasonably foreseeable.
However, the defendant is not liable if the loss or damage suffered is not traceable to the negligent act or omission of the defendant.
DEFENCES TO NEGLIGENCE
1. 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:-
1. That the plaintiff exposed himself to danger.
2. That the plaintiff was at fault or negligent.
3. 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.
2. 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
In Dann v Hamilton the plaintiff had taken a ride on a vehicle driven by a drunken person and his was aware of this fact and as a consequence an accident occurred. The defendant’s plea of volenti failed since the plaintiff had not consented to incur the risk.
However in Tugwell v Bunnet where the defendant’s vehicle expressly stated that passengers rode at their own risk and the driver at the material time was drunk to the plaintiff’s knowledge but took a ride in the motor vehicle and was injured, the defendant’s defense of volenti succeeded since the plaintiff appreciated the risk and agreed to incur the same.
3. 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.
STRICT LIABILITY: 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 is the rule in Rylands v. Fletcher where the defendant employed independent contractors to construct a water reservoir on the land, which was separated from the plaintiffs land by adjoining land. In the course the works the contractors came upon some old shafts and passages filled with earth. The contractors did not block them up. Unknown to them, the shafts connected their land with the plaintiff’s mines. When the water filled the reservoir, it seeped through the old shafts and into the plaintiff‟s mines thence flooding them. It was found as a fact that the defendant was not negligent, although the contractors had been. However, although the defendant was neither negligent nor vicariously liable in the tort of his independent contractors, he was held liable by the Court of Exchequer chamber and the House of Lords. The judgment of the Court of Exchequer chamber was delivered by Blackburn J. at P. 279 -280 and it has become a classical exposition of doctrine.
“We think that the true rule of law is, that the person who for his own purpose brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequences of its escape.”
This may be regarded as the „rule in Rylands v. Fletcher’
But what follows is equally important. The court further said:
“He can excuse himself by showing that the escape was owing to the plaintiff’s default; or the act of God: it is unnecessary to inquire what excuse would be sufficient”.
The general rule, as above stated, seems to be just in principle.
“The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from the neighbour’s reservoir, whose cellar is invaded by filth of his neighbours or whose habitation is made unhealthy by the fumes and noise and vapours of his neighbours alkali works, is damnified without any fault of his own; and it seems reasonable and just that the neighbour, who has brought something on his own property which was naturally there harmless to others so long as it is confirmed to his own property, but which he knows to be mischievous if it gets on his neighbours should be obliged to make good the damage which ensues if he does not succeed in confining it to his property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences and upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches.”
Lord Cairns in the House of Lords upheld this judgment but restricted the scope of the rule to where the defendant made a “non-natural use” of the Land.
This decision makes it clear that liability was strict in the sense that the defendant’s liability was neither personal nor based on a mere vicarious liability for the negligence of his independent contractors.
REQUIREMENTS OF THE RULE IN RYLANDS v. FLETCHER 1. 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 initself. 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.
In Musgrove v. Pandelis, the court applied Blackburn J‟s test literally where the collected thing did not itself escape but caused the escape of something else. In this case, the defendant was held liable under Rylands v. Fletcher for the escape of a fire which started in the engine of his car was found to be an object likely to do mischief if it escaped.
The artificiality of this approach was however rejected in Mason v. Levy Auto parts in relation to a fire which began in wooden packing cases stored in the defendants land. The test applied was whether the objects were likely to catch fire and the fire spread outside the defendant‟s premises.
The liability was a strict one if this occurred.
In A.G. v. Corke a landowner was held liable under Rylands v. Fletcher for permitting the camping on his land of gypsies (caravan-dwellers) who trespassed and committed damage on the neighbouring land. This case was however received general disapproval in applying the rule in Rylands v. Fletcher to human beings. The objection has been that „things‟ does not include humanbeings and that liability in the above case should have been based on nuisance or negligence.
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.
In Charing Cross Electricity Supply Co-v- Hydraulic Power Company, the rule applied to one who had the statutory power to lay electricity cables under the highway.
In Rigby v. Chief Constable of North Amptonshire, the court stated that the rule applied to cases where the defendant was in no sense in occupation of the land; in this case by firing a canister of gas into the plaintiffs.
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.
In Smeaton v. Ilford Corporation it was stated that a local authority which was under a statutory duty to collect sewage collected it for its own purposes within the rule in Rylands v. Fletcher.
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 therule but recent decisions have established possibility of can action in nuisance for such escape.
The accumulation must thus be voluntary.
3. 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. Non-natural use of land was explained by the Privy Council in Richard v. Lothian as per Lord Moulton.
„It must be some special use bringing with it increased danger to others and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community.‟
What is natural is now viewed differently in different cases.
Non-natural use of land is generally constituted by certain activities as the storage on the land in bulk of water, electricity, gas and the collection of sewage by local authorities.
It is however, arguable that many of the above examples should be held to be natural use according to the Privy Council‟s definitions as being for the general benefit of the community. In British Celenese Ltd v. A.H. Hunt Ltd, it was held that the benefit derived by the community fromthe manufacturing of electrical and electronic components made the use of land for such purpose and the storing of strips of metal foil thereon a natural use of the land.
It is thus to be noted that the scope of „non-natural user‟ of land has narrowed over the years.
The decision will now depend on the facts of each case. It has been held that generating steam or electricity is not „non-natural‟ but that storing of industrial water under pressure, or gas and electricity in bulk is a non-natural use.
There is no liability under the rule unless there is an escape of the substance from the land where it is kept. In Read-v-Lynns & co Ltd. the defendants operated on ammunition factory as agents of the Ministry of Supply. The plaintiff was an appointed inspector for the ministry. In the course of carrying out her duties in the factory, an explosion occurred causing her injuries. She based her claim against the defendants on Rylands-v-Fletcher making no assertion that the defendants had been negligent. It was held that Rylands-v- Fletcher was inapplicable because there had been no escape of the thing that inflicted the injury. 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;
a) The condition of escape from the land of something likely to do mischief if it escaped.
b) The condition of non-natural user of the land.
The House of Lords emphasized that the absence of an escape was the basis of their decision 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.
In Hale-v-Jennings Bros, the court held that an occupier of land was entitled to damages for personal injury under the Rule in Rylands-v-Fletcher.
In Cattle-v-Stocker Waterworks co, it was held that purely economic loss was not recoverable.
DEFENCES TO THE RULE IN RYLANDS v. FLETCHER
1. CONSENT OF THE PLAINTIFF
If the plaintiff has permitted the defendant to accumulate the thing the escape of is complained of, then he cannot sue if it escapes.
Implied consent will also be a defence; thus a person becoming a tenant of business or domestic premises that the time when the condition of the adjoining premises occupied by the landlord is such that the happening of the Ryland v. Fletcher type is likely to ensue, is deemed to have consented to take the risk of such an event occurring.
In Kiddle-v-City Business Properties Ltd, the plaintiff became a tenant of the defendant in a house below the house occupied by the defendant (Landlord). The gutter of the Landlord’s house was blocked and when it rained, an overflow of rainwater from the blocked gutter at the bottom of the sloping roof in possession of the Landlord and above the tenant‟s premises damaged the stock in the tenant’s premises. It was held that the Landlord had a defence as the tenant impliedly consented to the risk of rainwater overflowing into his premises.
If the accumulation benefits both the plaintiff and the defendant, the plaintiff may be deemed to have consented to its accumulation e.g. where for the benefit of several occupants‟ rainwater is accumulated on the roof or a water closet installed or water pipes fitted, the several occupants are deemed to have consented.
On the other hand, the defence is not available as between a commercial supplier of gas in respect of gas mains under the highway. In any event an occupier will not be presumed to have consented to installations being left in a dangerously unsafe state.
2. CONTRIBUTORY NEGLIGENCE (PLAINTIFF‟S OWN DEFAULT)
If the damage is caused solely by the act or default of the plaintiff himself or where the plaintiff is contributorily negligent, he has no remedy.
If for instance a person knows that there is danger of his mine being flooded by his neighbors operations on adjacent lands and courts the danger of doing some act which renders the flooding probable, he cannot complain, as stated in Miles-v-Forest Rock Granite Co.Ltd.
In Dunn v. Birmingham Canal & Co, where the plaintiff worked a mine under the canal of the defendant and had good reason to know that they would thereby cause the water from the canal to escape into this mine, it was held that they could not sue in Rylands v. Fletcher when the water actually escaped and damaged their mine. Cockburn C. J. said; “The plaintiff saw the danger, and may be said to have courted it.”
3. ACTS OF THIRD PARTIES (ACTS OF A STRANGER)
Where the occupier of land accumulates things on his land, the rule will not apply if the escape of the thing is caused by the unforeseeable act of a stranger.
In Rickards v. Lothian the plaintiff failed in his claim against the defendant where a third party had deliberately blocked up the waste pipe of a lavatory basin in the defendant premises, thereby, flooding the plaintiff‟s premises.
The basis of the defense is the absence of any nature of control by the defendant over the acts of a stranger on his land and thus the burden is on him to show that the escape was due to the unforeseen act of a stranger without any negligence on his own part.
If on the other hand, the act of the stranger could reasonably have been anticipated or its consequences prevented, the defendant will still be liable.
While it is clear that a trespasser is a „stranger‟ for this purpose, other person included in this term depend on circumstances.
The occupier is of course liable for the defaults of these servants in the course of an independent contractor unless it is entirely collateral.
He is liable for the folly of a lawful visitor as well as the misconduct of any member of his family he has control over.
It has also been argued that he ought to be responsible for guests and licensees on his land but a distinction ought to be taken here or it would be harsh to hold an occupier liable for the act of every casual visitor who has bare permission to enter his land and of whose propensities to evil he may know nothing of e.g. an afternoon caller who leaves the garden gate open or a tramp who asks for a can of water and leaves the tap on.
Possibly the test is, “can it be inferred from the facts of the particular case that the occupier and such control over the licensee or over circumstances which made his act possible that he ought to have prevented it? If so, the occupier is liable, otherwise not.”
As regards the issue of dangerous elements brought on the owners land by another person, the owner is not liable under the rule as in Whitemorses v. Standford
4. ACT OF GOD
Where escape is caused directly by natural causes without human intervention in “circumstances which not human foresight can provide against and of which human prudence is not bound to recognize possibility” the defense of act of God applies and the occupier is thus not liable.
5. STATUTORY AUTHORITY
Sometimes, public bodies storing water, gas, electricity and the like are by statute exempted from liability so long as they have taken reasonable care.
It is a question of statutory interpretation whether, and, if so, to what extent liability under Ryland-v-Fletcher has been excluded.
In Green v. Chelsea Waterworks Co. a main pipe belonging to a waterworks company which was authorized by parliament to lay the main, burst without any negligence on the part of the company and the plaintiff premises were flooded; the company was held not liable.
On the other hand, In Charing Cross Electricity Co v. Hydraulic Power Co. where the facts were similar, the defendants were held liable. The defendant had no exemption upon the interpretation of their statute.
The distinction between the cases is that the Hydraulic Power Company were empowered by statute to supply water for industrial purposes, that is, they had permissive power but not a mandatory authority, and they were under no obligation to keep their mains charged with water at high pressure, or at all.
On the other hand, the Chelsea water works Company were authorized by statute to lay mains and were under a statutory duty to maintain a continuous supply of water it was an inevitable consequence and damage would be caused by occasional bursts and so by necessary implication the statute exempted them from liability where there was no “negligence‟.
The question whether the rule in Rylands v. Fletcher applies in all its strictness to local authorities has been considered but not decided.
The expression “vicarious liability” signifies liabilities which A may incur to C for damage caused to C by the negligence or other tort of B.
It is not necessary that A should not have participated in any way in the commission of the tort nor that a day owed in Law by A to C shall have been broken.
What is required is that A should stand in particular relationship to B and that B‟s tort should be referable in a certain manner to that relation.
The commonest instance in Law is the liability of a master for the torts of his servants. Vicarious liability generally arises from a contract service
WHO IS A SERVANT?
Since vicarious liability generally arises from a contract of service (“servant”) not a contract of services (“independent contractor”) it is important to determine the indications of a contract of service.
In an often cited statement in Short v. J & W Henderson Ltd Lord Thankkerton said that there are four indications of a contract of service;
a) The master’s power of selection of is servant
b) The payment of wages or other remuneration
c) The master’s right to control the method of doing the work, and
d) The master’s right of suspension
This list has been found helpful in determining whether a master-servant relationship exists but it is not conclusive. It is not possible to compile an exhaustive list of all the relevant considerations. The court stated in Market Investigation Ltd v. Minister of Social Security (1969 ) per Cooke J:
The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether he hires his own equipment, whether he is own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.
The control test is however not conclusively determinant of master-servant relationship especially when dealing with professionals or men of a particular skill.
In Morren v. Swinton the defendants engaged a firm of consultant engineers to supervise the construction of certain sewage works. Under the contract, the defendants were supposed to appoint a resident engineer (to be approved by the consultants) to supervise the works under the general supervision and control of the consultants. The plaintiff was appointed as a resident engineer by the defendant and approved by the consultants pursuant to the terms of the contract. He was paid by the defendant and was entitled to holidays with pay and was liable to be dismissed by the defendants. He was however delegated to the consultants and was under their general supervision and control
Held: Absence of control by the defendant was not necessarily the most important test. Theother factors were enough to show that the plaintiff was clearly employed by the defendant under a contract of service.
It is thus important to state that whether or not a contract of service exists will depend on the general nature of the contract and no complete general test exists. More helpful is the well-known statement of Denning L. J. inStevens v. Brodribb Co. Pty. Ltd.
“It is often easy to recognize a contract of service when you see it, but difficult to say wherein the distinction lies. One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of a business, and his work is done as an integral part of the business; whereas under a contract of services, his work, although done for the business, is not integrated into it but is only an accessory to it.”
An independent contractor will commonly be paid “by the job” whereas a servant will generally receive remuneration based upon time worked. But a piece worker is still a servant; and a building contractor is under a contract of service notwithstanding that it may contain provisions for payment by time.
Once the Master-servant relationship is established, the master will be liable or all torts committed by the servant in the course of the employment.
It has held that radiographers, house surgeons, house time-assistant medical officers and probably staff anesthetics are employees of the hospital authority for various liabilities. But visiting consultants and surgeons are not employees of the hospital and thus the hospital is not liable.
In Hillyer v. St-Bartholomew’s Hospital the plaintiff bought an action against the governor of a hospital for injuries allegedly caused to him by negligence of an operating surgeon. The hospital was a charitable body.
Held: That the action was not maintainable. The court further stated that the only duty undertakenby the governors of public hospital towards a patient who is treated in the hospital is to use due care and skill in selecting their medical staff. The relationship of master and servant does not exist between the governors and the physicians and surgeons who give their service at the hospitals (i.e. who are not servant of the hospital.) The court further stated that the nurses and other attendants assisting at the operation cease, for the time being, to be the servant o the governor, in as much as they take their orders during that period from the operating surgeon alone and not from the hospital authorities.
Where there is a contract between the doctor and the patient, the hospital is not liable.
A hospital is thus liable for negligence of doctor and surgeons employed by the hospital authority under a contract of service arising in the course of the performance of their professional duties. The hospital owes a duty to give proper treatment to its patients.
In Cassidy v. Minister of Health the plaintiff entered a hospital for an operation of this left hand, which necessitated post-operational treatment. While undergoing the treatment he was under the care of a surgeon who performed the operation and who was a whole-time assistant medical officer of the hospital, the house surgeon and members of the nursing staff, all of whom were employed under a contract of service. At the end of the treatment it was found that his hand had been rendered useless.
Held: The hospital was liable
A hospital may also be liable for breach of duty to patients to provide proper medical service although it may have delegated the performance of that duty to persons who are not its servants and its duty is improper or inadequately performed by its delegate.
An example is where the hospital authority is negligent in failing to secure adequate staffing as where a delegate is given a task, which is beyond the competence of a doctor holding a post of seniority.
b) Hired Servants
A difficult case arises where A is the general employer of B but C, by an agreement with A (whether contractual or otherwise) is making temporary use of B‟s services.
If B, in the course of his employment commits a tort against X, is it A or C who s vicariously liable to X? It seems that it must be one or the other but not both A&C.
In Mersoy Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd. A employed B as the driver of a mobile crane. A let the crane to C together with B as driver to C. The contract between A and C provided that B should be the servant of C but was paid by A and A alone had the power to dismiss him. In the course of loading a ship, X was injured by the negligent way in which B worked the crane. At the time of the accident C had the immediate direction and control of the operations to be executed by B and crane e.g. to pick up and move a pieces of cargo, but he had no power to direct how B should work the crane and manipulate its controls.
Held: That A as the general or permanent employer of B was liable to X. The court held that there is a very strong presumption that a servant remains to be the servant employer although he may be the servant of the hirer.
The question whether A or C is liable depends on how many factors; e.g. Who is the paymaster, who can dismiss, how long does the alternative service last, what machinery is employed etc.
The courts have however generally adhered to the view that the most satisfactory test is, who at the particular time has authority to tell B not only what he is to do, but how he is to do it. This is question of fact involving all he circumstances of the case.
c) Loan of Chattels
In Omrod v. Crosville Motor Services Ltd. (1953) the owner of a car was attending the Monte Carlo motor rally. He asked a friend to drive his car from Birkernhead to Monte Carlo where they were to have a holiday together. During the journey, on a diverted route, the car was involved in an accident.
Held: At the time of the accident, the car was being used wholly or partially for the owner’s purposes and thus the friend was an agent of the owner and in so far as the friend was liable of negligence, the owner was vicariously liable for his negligence.
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:
1. 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.
In Ellis v. Sheffield gas Consumers Co the defendant who had no authority to up the street employed a contractor to open trenches and lay gas pipes along a street.
The contractor carelessly left a heap of stones on the footpath; the plaintiff fell over them and was injured.
Held: the defendants were liable since the contract was to do an illegal act, a public nuisance. Thedecision would have been different had it been lawful for the defendant to dig up the streets.
2. 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.
In Terry v. Aston, the defendant employed an independent contractor to repair a lamp attached to his house and overhanging the footway. As it was not security fastened, the lamp fell on the plaintiff, a passer-by and the defendant was held liable, because: it was the defendant‟s duty to make the lamp reasonably safe, the contractor had failed to do that. Therefore, the defendant has not done his duty and is liable to the plaintiff for the consequences.
Here liability was strict.
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.
In Robinson v. Beaconsfield Rural Council, the defendant employed an independent contractor, one hook, to clean out cesspools in their district.
No arrangements were made for the disposal of the deposits of sewage upon being taken from the cesspools by hook. Hook men deposited the sewerage on the plaintiff land.
Held: The defendants had a duty to dispose the sewerage and, on construction of the contract, they had not contract with hook for discharge of this duty (disposing of the sewage) hence they were liable for the acts of the hook’s men in disposing it on to the plaintiff land.
4. 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.
In Holiday v. National Telephone Co, the defendant, a Telephone Company, was lawfully engaged in laying telephone wires along a street. They passed the wires through tubes, which they laid a trench under the level of the pavement.
The defendants contracted with a plumber to connect these tubes at the joints with lead and solder to the satisfaction of the defendant foreman.
In order to make the connections between the tubes, it was necessary to obtain a flare from a benzoline lamb of applying heat to the lamb. The lamb was provided with a safety valve.
The plumber dipped the lamp into a caldron of melted solder, which was placed over a fire on his footway. The safety valve not being in working order caused the lamb to explore. The plaintiff, who was passing on the highway was splashed by the molten solder and injured.
Held: The defendant were liable because having authorized the performance of work which fromits nature was likely to involve danger to persons using the highway were bound to take care that those who executed the work for them did not negligently cause injury to such persons.
ESSENTIALS FOR THE LIABILITY OF THE MASTER
For a master to be liable for his servant’s torts the tort must have been committed “in the course of employment”. An act is done in the course of employment if;
a) It was a wrongful act authorized by the master
b) It was a wrongful and unauthorized mode of doing something authorized by the master.
In London County Council v. Caltermoles (Garages) Ltd, the defendant employed a general garage hank, part of whose job involved moving vehicles around the garage. He was only supposed to push the vehicles and not to drive them. On one occasion, he drove a vehicle in order to make room for other vehicles. Whilst doing so, he negligently damaged a vehicle belonging to the plaintiff.
Held: That the negligent act was within the course of the garage hand’s employment although he had carried his duties in an unauthorized manner. His master was thus vicariously liable.
In Muwonge v. Attorney-General of Uganda, the appellant’s father was killed during a riot. The shot which killed him was fired by a policeman who had seen the appellant’s father ran towards a house and had concluded that the appellant‟s father was a rioter.
Held: The firing of the shot was act done with the exercise of the policeman‟s duty in which thegovernment of Uganda was liable as a master even though the act was wanton, unlawful and unjustified.
If the act is not done within the course of employment, the master is not liable. In Twine v. BeansExpress a van driver employed by the defendant had been expressly forbidden to give lifts to unauthorized persons and a notice to this effect was displayed on the dashboard. The van driver gave a lift to a person who was killed in a subsequent accident due to the negligence of the van driver. The widows of the deceased brought an action against defendant.
Held: The action by the widows failed because the driver was acting outside the course of his employment. In this case the act was expressly unauthorized.
GENERAL GUIDELINE IN DETERMINING WHETHER AN ACT WAS COMMITTED DURING THE COURSE OF EMPLOYMENT
1. 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.
In Bayley v. Manchester Sheffield and Lincolnshire Railway the plaintiff was in a train traveling to Macclesfield and he explained this to the mistakenly believed that the plaintiff was the wrong train (that train was not traveling to Macclesfield) and violently ejected the plaintiff who suffered injuries.
Held: The defendants were liable because the porter was acting within the cause ofemployment.
2. 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 housewhile 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 theclerk‟s employment, it was an event incidental to his employment.
In Storey v. Aston, the defendant, a wine merchant, sent his car man and clerk to deliver wine and pick up empty bottles. On their way back, they diverted to visit the clerks house in the course of which they negligently knocked down the plaintiff and injure him.
Held: The defendant was not liable for the injury caused by the negligent driving of the car manfor he was, that time, engaged in a new and completely unauthorized journey.
3. 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.
In Poland v. John Parr and Sons, Arthur Hall, a carter was employed by John Parr. Parr and his son were conveying a wagon with bags of sugar. Arthur, on his way home for dinner was walking else to the wagon. The plaintiff, a schoolboy, was walking home in the same direction with his hand upon one of the bags of sugar.
Honestly and reasonably thinking that the boy was stealing, Arthur gave him a blow on the back of his neck as a result whereof he fell and the wheel of the wagon injured his foot which was amputated.
Held: In the circumstances, the carter had implied authority to make reasonable efforts to protectand preserve the defendants property; that the violence exerted was not so excessive as to take his act outside the scope of authority and that the defendant were liable.
4. 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:
i. Whether the prohibition limits the sphere of employment. If it does, the master is not liable for an act done outside the sphere. (Sphere).
ii. Where the prohibition deals with the contract within the sphere of employment. If it does, the employer will be liable. (Mode)
In Canadian Pacific Railway Co v. Lockhart a servant of the appellant Company in disregard of written notices prohibiting employers from using private cars for the purpose of the company’s business unless adequately insured, used his uninsured motorcar as a means of execution of work which he was ordinarily employed to do in the course of which he injured the respondent.
Held: The means of transport was incidental to the execution of work, which the servant wasemployed to do and that the prohibitions of the use of an uninsured motorcar merely limited the mode of executing the work, breach of the prohibition did not exclude the liability of the company to the respondent.
In Rand v. Craig, Carters were employed by a contractor to take rubbish from certain works to his dump and were strictly forbidden not to hip it anywhere else. Some of the carters, without knowledge of the contractors, and in contravention of their orders took the rubbish to a piece of unfenced land belonging to the plaintiff as it was nearer the works that the dump of contractor.
Held: The illegal acts complained of where not within the sphere of the carter’s employment and consequently the contractor was not liable for them.
5. 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.