VICARIOUS LIABILITY IN A NUTSHELL

● Vicarious liability is a form of joint liability where two tortfeasors

are present:
o The employee
o The employer
● The liability here is for a tort committed by the employee towards a
third party which renders the employer liable as well.

Justification for the imposition of vicarious liability.

● The employer is best situated to reduce workplace accidents and

intentional wrongdoings of employees.
o This is however less convincing since other employers
perform skills that the employer is unfamiliar with, e.g.,
surgeons and doctors.
● The employer may have been careless in selecting the employee
o This however fails to explain instances where the tort was
committed by a very competent employee.
● Justification on the basis of social convenience and rough justice.
o This entails that the employer has a greater ability to pay
for any damages than the employee.
o The employer is the best insurer against liability which
leads to what is popularly known as the “deeper pocket
theory”
● The doctrine is also justifiable on a moral basis where the
employee causes injuries while enhancing the employer’s business
interests.
o The employer must bear the costs of accidents arising from
the employee’s work since they benefit from the same.

o see the case of Dubai Aluminium v Salaam where a senior

partner drafted a consultancy agreement for a fraudulent
 company and earned millions from it. After discovery, they
were sued and asked to pay for the other partner’s actions.

Elements for vicarious liability

● In order for an action in vicarious liability to succeed, three

elements need to be fulfilled:
o The alleged tortfeasor must be an employee
o The employee must commit a tort
o The tort committed must be in/during the course of
employment.

a. Who is an employee?

● The case of Ready Mixed concrete V Minister of

Pensions, characterized an employee as a person who meets
the following criteria:
o The person agrees to provide work (perform a service)
and skill for the employer in return for payment
(remuneration);

o The person agrees – implicitly or expressly – to be

under the control of the employer to a sufficient
degree. This includes:
▪ Task performance
▪ Means, and
▪ Time

o That other terms of the contract are consistent with

the existence of the contract of service. (see the case
of Gould v minister of national insurance).
● However, when establishing the employer-employee
relationship, problems arise when three situations occur:

o When there are relationships akin to employment

▪ The case of JGE v Portsmouth Roman Catholic
Church held that even the relationship between
the priest and the church was an employer-
employee relationship even though there was no
remuneration and no supervision.
▪ The Christian Brothers Case further stressed
the point that the law on vicarious liability had
moved beyond the contract of service. The
brothers had committed a series of sexual
offenses and the UKSC had to establish whether
there was an employee-employer relationship.
▪ The other scenario under this head is the case of
Cox v Minister of Justice where a prisoner -
who worked in the kitchen at the prison -
committed a tort and injured the plaintiff. The
court concluded that although there was no
contract, there was still an employment
relationship.
▪ The Malawian case of Willard Kangala v
Transglobe, although decided in the magistrate
court, also stressed the fact that there need not
to be contractual evidence to ascertain an
employer-employee relationship. One must simply
look to the facts to establish such a relationship.

o The loan of an employee and,

▪ The precedent was set out in the Mersey Docks
v Coggins and Griffiths case where the courts
 were enabled to choose between the two
employers would full responsibility for the
employee’s actions.
▪ However, the approach was reversed in the
viasystems ltd v thermal transfer limited to
say that both employees could be liable for the
actions of a single tortfeasor.

o Presence of independent contractors.

▪ Generally, an employer is not liable for the
actions of an independent contractor unless:
● The employer breaches a non-delegable
duty
● The employer delegates a delegable duty
but fails to take reasonable steps to hire a
competent worker.
▪ Acts outside the independent contractor’s work
shall not attract liability for the employer.
▪ No test can separate an employee and an
independent contractor though courts use the
approach of distinguishing between a contract
of service and contract for service; see Gould
v Minister of National Insurance.

b. The tort was committed in/during the course of employment.

● Here two tests are discussed:
○ The salmond test
■ The act will be in the course of employment if it
is:
● An authorized tort by the employer
 ○ under this head, the action brings
forth the employer’s primary liability
rather than vicarious liability.
● A wrong and unauthorized mode of work
which was ordinarily authorized by the
employer.
○ Here, the employer could be held
liable for an action he had forbidden.
○ Acting negligently does not take the
employee outside his scope of
employment according to salmond
○ See the case of Century Insurance
Co v Northern Ireland Road
Transport company
● The lister test
○ The Salmond test was replaced by the Lister Test
since the second limb of the latter test presented
ambiguities when dealing with intentional torts such as
sexual assaults or sexual abuse.
○ Here, liability may be imposed where the act was
closely connected with the employee’s job according to
Lister v Hesley Hall.
■ whether the defendant’s actions were so
closely connected to his employment that it
would be fair to hold the employer vicariously
liable
○ The test is easier to mention than apply and it
scrutinizes the nature and purpose of the defendant’s
job and the circumstances of his tort. as such two
stages were proposed:
■ that the employee was entrusted with a
protective or fiduciary duty to be exercised at
his discretion.
 ■ that the act must take place during exercise of
the purported discretion.
○ However, the UKSC upheld the test in the Christian
Brothers (Various Claimants) Case.
○ The principle was furthered in Dubai Aluminium Co v
Salaam to include not just intentional torts but those
breaches of equitable duty which were closely
connected with the acts that the employee was
authorized to do in the course of the firm’s business.
○ The test is usually applied in the sexual abuse cases eg
The Christian Brothers Case considering if the
relationship between the tortfeasor and employer is
enough to raise the liability vicariously.

EMPLOYERS LIABILITY IN A NUTSHELL

● As far as employers are concerned there are three main ways in

which employers can incur liability for the damages suffered by
an employee:
 1. Vicarious liability, which can arise when an employee injures
another person- employee or not – and the law requires the
employer to take responsibility.
2. Where an employer has a statutory duty to protect the
safety employees, as a result of legislation eg the workers
compensation act
3. The common law rules which impose on employers a personal
duty of care to take reasonable care of their employees’
safety with work.

I. Via vicarious Liability

● see notes on vicarious liability in chapter 1 above.

II. Employer’s Personal Duty

● The employer must take reasonable steps to ensure the
following under common law:
o A safe working environment as in the case of
Latimer v AEC ltd.
▪ The floor of the defendant’s company where
the plaintiff worked had become slippery and
the defendant put sawdust to make the area
safe.
▪ The plaintiff however still slipped and fell
causing injuries. The defendants were deemed
not liable having taken all reasonable
precautions.

o Competent stuff in the case of Hudson v Ridge

Manufacturing Co Ltd.
▪ the employee had caused injury to another
when he played a practical joke on him.
vicariously, the employer was held not liable
but was personally liable for not doing
 anything to curb the behavior of the
employee.

o Adequate working equipment in the case of

Sakonda v SR Nicholas, and

o A safe working system.

● The duty can apply to:

o Physical harm
o Psychiatric harm and
o Economic loss

III. Common Law Duty

● The duty is to take reasonable care, not to eliminate all
possible risks
● However, employees are supposed to have regard to their
own safety and cannot leave simply all of it as the
employers’ responsibilities.
● The duty is owed to each individual, so special
characteristics of the individual must be taken into
account as in the case of Paris v Stepney.

OCCUPIERS’ LIABILITY IN A NUTSHELL

● This is a duty that is imposed on occupiers whose premises or any
other thing on their property causes damage to another. The duty
is owed to two groups of people:
Lawful visitors
Unlawful visitors or trespassers
 Duty towards lawful visitors

● It is the duty of the claimant to show that he was a lawful visitor

to be entitled to more favorable remedies rather than a
trespasser.

What is (are) a premise (s)?

● The term does not only apply to real property but also to
appliances or objects upon which the plaintiff has been
invited or allowed to make use. This could include stages,
dive boards, grandstands etc. (Salmond)

Who is an occupier?
● no statute has defined an occupier. But at common law, an
occupier would be treated as one who has control over
the premises.
● The occupier does not have to be the physical (occupier)
owner.
o The critical issue is that the occupier should
exercise a sufficient degree of control over the
premises to allow or prevent people from entering.
o This should be established as a matter of fact
● The liability will only apply where the fact that the
defendant is the owner is material and relevant to their
liability, and where the damage could have been done by
someone else other than the occupier, normal negligence
rules apply (duty of care, breach of duty of care,
damages and defenses.)
o see Harris v Birkenhead Corporation where a child
fell from the second floor of a building to the
ground after the defendants had served a notice to
the initial owner of clearance for the house.
 ● It is also possible for a premise to have more than one
occupier (Wheat v E Lacon & Co) and where there is
insufficient control, the defendant would not be
considered as an occupier.
o in Wheat v E Lacon & Co, Lord Denning said the
following about occupiers:
wherever a person has a sufficient degree of
control over premises, he ought to realize that
any failure on his part to use care may result in
injury to a person coming lawfully there, then he
is an ‘occupier’ and […] is under a duty to his
‘visitor’ to use reasonable care. In order to be an
‘occupier’ it is not necessary for a person to have
entire control over the premises. He need not
have exclusive occupation. […] He may share the
control with others. Two or more may be
‘occupiers’. And […] each is under a duty to use care
towards persons coming lawfully on to the premises,
dependent on his degree of control."

Who may claim, or who may sue the occupier?

● According to Salmond, three categories of people are
recognized by statutory duty or at common law are
considered to sue the occupier:
o Visitors with explicit permission to enter.
▪ The occupier can control, however, the
behavior, time and place of that permission.
o Visitors with an implied permission to enter into the
land
▪ implied permission can also come into
existence where the occupiers knows that
there are trespassers on the land but does
nothing against it.
 o Those with a lawful right to visit, vis-a-vis licenses
and statutory permissions. e.g. police officers and
utility company officials
▪ the power to such permissions can be found in
their relavant statutes.

● Any other person apart from these is regarded as a

trespasser (to be discussed later).
● At common law, there was a hierarchy as to who deserved
the highest standard of care,
o Those on land by virtue of contracts eg hotel guests
o Invitees eg guests and acquaintances
o licensees permitted for their own purpose
o trespassers
● Occupiers have such a duty towards visitors to take such
care as is reasonable to see that the visitor will be
reasonably safe in using the premises. Defendants are
not obligated to provide absolute safety, only to take
reasonable care.
● The occupier is not required to make the premises safe
but reasonable steps to make the visitor safe e.g. giving
reasonable warning of danger.
● The visitors hereinabove are the ones that are regarded
as the lawful visitors to whom a duty is owed.

Special Duty of Care

● A special duty of care is required for a particular class
of people, some of which include:
o Children.
▪ The occupier must make the premises safe
for children at that age.
 ● E.g. Perry v Butlins Holiday World
[1997] and
● Glasgow Corporation v Taylor [1922]
where a child ate poisonous berries in
the premises of the defendant and
were held to be liable.
▪ Regularly the occupier would apprehend
that a child would be accompanied by an
adult and if not, the occupier does not need
to achieve any higher standard of care.

o Person exercising their calling or skill set.

▪ The occupier may expect that such a
person may appreciate the risks associated
with the work being done should the
occupier leave him.
▪ E.g. Roles v Nathan in which two
professional chimney sweeps died after
ignoring warnings from numerous experts on
sealing fume leaks. the occupiers of the
house were held not liable as they had
discharged there duty.

o Independent contractors
▪ The occupier is not treated without more
as answerable for the danger if he had
acted reasonably in entrusting the work to
an independent contractor
▪ He will not be required to do more if he
took steps to reasonably satisfy himself
that the contractor was competent.
▪ E.g. Ferguson v Welsh
 “where two persons occupy the same
premise, it is possible that a third party
can be a lawful visitor to one occupier and a
trespasser to the other, depending on
whether the one who invited the third had
actual authority from the other occupier.”

Unlawful Visitors

● An unlawful visitor is one who goes onto land without

any kind of permission, whose presence is either not
known to the occupier or if known is objected to by
the occupier.
● It is possible to be an unlawful visitor in one part of
the premise, disregarding the fact that you are legally
a visitor at the place.
● E.g Tomlinson v Congleton Borough Council
● In terms of the duty of care owed to them, statutory
duty imposed resembles that of common law earlier
set in the case British Railways Board v Herrington
● However, per statute the duty only arises if:
o The occupier is aware of the danger or has
reasonable grounds to believe that it exists;
o The occupier has reasonable grounds that the
trespasser is in the vicinity of the danger or that
he may come into the danger zone, and
o The risk is one which in all circumstances of the
case, the occupier may reasonably be expected
to offer some protection form.
DEFAMATION IN A NUTSHELL
● This entails protecting a person from harm caused by words to
their reputation.
● By definition, defamation is an action after the utterance of a
defamatory statement ( a statement which lowers a person in the
eyes of right-thinking members of the society).
● The tort presents a problem since in trying to protect people’s
reputations, it will also impinge on the right to freedom of speech
set out on section 35 of the constitution.

Features of defamation
i. Jury trials
ii. Death of the Claimant
iii. Libel tourism
iv. Actionable per se
v. Costs of bringing an action
vi. Damages

What are the forms of defamation?

● Before that question could be answered it is clear to notice
the two categories of defamation.
o Libel
▪ Covers more permanent statements made about
someone
▪ Usually in the form of written or printed words,
pictures.
▪ In the case of Monson -v- Tussauds, wax
figures and statues were mentioned to be forms
through which one can commit libel.
 ▪ The case of Youssoupoff -v- Metro Goldwyn
Mayer Pictures, even soundtracks from films was
also considered part of libel
▪ Before the enactment of the Defamation Act in
2013, Libel was harm actionable per se – “If a
statement could be shown to be defamatory then
it was presumed that the claimant had suffered
damage.” See Thornton v Telegraph Media
Group

o Slander
▪ Statements temporarily made and are considered
less serious than libel.
▪ An example are words spoken to others.
▪ A case example is that Lynch -v- Knight.
● Mr. Knight told Mr. Lynch that his wife was
a liar, caused disturbances and had been
involved in immoral conduct before
marriage and warned him not introduce her
to the society. Mr. Knight then moved her
out and Mrs. Knight brought an action
against Lynch.

● Notice that Unlike libel, slander could only be actionable

per se if the following exceptions were adequately met:
o Imputation of a criminal offense punishable by
imprisonment.
▪ A particular offense need not to be mentioned
herein.
o Imputation of incompetence or unfitness in doing their
job.
o Imputation of a contagious disease
 o Imputation of unchastity or adultery by a woman in
the case of women.
● Notice that libel that forms a breach of peace is a
crime while slander is only tortious.

● Take due notice as well that defamation can be in the

form of Innuendos
o This takes the form of an implicit explanation. At face
value, the statement or action is not defamatory but
via implication, defamation can be inferred.
o An innuendo need not to only be in words but could also
be pictures or statues.
o Distinguish between a false innuendo and a true
innuendo.
▪ The former is where the claimant pleads that
the words in their natural and ordinary meaning
have a particular meaning which can be
discovered without any additional evidence. See
Lewis -v- Daily Telegraph
▪ The latter is where extrinsic evidence (outside
the publication) needs to be introduced in order
to establish the meaning.

The claimant’s Case

a. Who, then, first of all, can sue?

● Only living persons can bring actions of defamation against
anyone. A person cannot bring an action over the defamation
of a dead relative, unless the claimant proves that the
defamation of the dead relative has also brought serious
damage to them personally.

b. What are the elements of a defamation action?

 ● The action of defamation has three elements which need to
be satisfied to establish an action:
o That there was a defamatory statement which caused
serious harm to the claimant
o That the statement referred to the claimant
o That the defamatory statement was published by the
defendant.

i. That there was a defamatory statement

● The defamatory words must be considered as a matter of
context. At first, the literal meaning and/or context of the
statement should be applied.

John Cooke defined it as “the publication of a statement which

tends to lower the estimation of the right-thinking member of
the society or which tends them to avoid that person.”

● These words or meanings to the defamatory statement

should be attached by the right-thinking members of the
society who are not overly suspicious and too naïve.
● In court, the claimant must plead the words by the
defendant and show the meaning of the words which might
imply defamation.
● See Rubber Improvement Ltd -v- Daily Telegraph and
Cecelia Kumpukwe and others -v- Attorney General.

ii. That the statement referred to the claimant.

● There are however absurdities that may arise from such a
simple rule.
o The first is during the use of fictional names.
 ▪ Read the case of Hulton -v- Jones
● The defendants, a newspaper, published
that one “Artemus Jones” was involved an
affair. However, there was in fact an
Artemus Jones who sued in defamation and
the courts decided in his favor even though
the defendant had raised a defense in
mentioning that they had no intention to
defame a person they didn’t know existed.

o The second scenario is when two people with the same

name or picture can be identified.
▪ Read the case of Newstead -v- Loudon Express
Newspaper.
● The newspaper published that one Harold
Newstead had been convicted of bigamy.
There was another Harold Newstead who
was unmarried who sued in defamation and
was awarded damages.

▪ Herein, it does not matter whether the

defendant intended to defame the claimant or
not since liability can be assigned as strict
liability.
▪ The principle is that even though the statement
might be true with regard to one claimant, claim
can still exist so long as the statement is true
for the other claimant for who it is untrue.
o The third is where no names are mentioned
o The last one is where a class defamation is involved
▪ Read the case of Knuppfer -v- London Express
Newspaper
 ▪ A statement may be defamatory for a class of
people e.g. doctors. The main problem that rises
is whether a particular person belonging to a
particular class can sue as an individual.

iii. That the defamatory statement was published

● Publication need not be on paper (Youssoupoff v MGM) but
it must have been said to the knowledge of the third party.
● A claimant cannot claim defamation, therefore, if only the
claimant heard or read or saw the defamatory statement
without reaching any third party.
o This entails that under such circumstances, the
defamatory statement was not, therefore, published.
Pullman -v- W. Hill & Co
● The gravity of the tort is increased where there is
duplication of the publication should you be the third party
in the action.

c. What are the defenses for the tort of defamation?

i. Offer of amends
● Under this defense a defendant may make an offer,
in writing, to a claimant to publish an apology or
correction and pay damages, even before a writ is
served on them for a court case.
ii. Honest (Fair) comments
● Where the defendant has made a fair comment
about the claimant, it should be declared as a
defense.
● The defense itself has requirements that need to be
met to successfully establish it:
o The statement made would need to be one of
opinion and not an assertion of a fact.
 o The statement must have the basis of an
opinion.
o The opinion must be one which an honest person
can hold in line with the facts which are
prevalent at that time.
iii. Consent
● If the claimant has consented to the publication, then
no action can lie.
● This defense is commonly associated with journalists
that are required show the copy of the publication
before the public sees the same.
iv. Truth (justification)
● The law does not permit a claimant to recover damages
in respect of an injury to a character which he does
not possess.
● The defense applies if the defendant could show that
the imputation conveyed by the statement is
‘substantially true’.
v. Doctrine of Privilege
● Section 60 of the constitution covers parliamentary
privilege.
o See Church of Scientology of California v
Johnson Smith [1972] 1 QB 522
o See Allason v Haines [1996] EMLR 143
o See Hamilton v Al fayed [2000] 2 All ER 224
o See Waple v Surrey County Council [1998] 1 All
ER 624
o See Cook v Alexander [1974] QB 279
● The doctrine also encompasses judicial privilege. What
extent do the courts proffer judgments without being
sued?
PRODUCT LIABILITY IN A NUTSHELL

 The aim of the tort is to protect the ultimate consumer from any
physical harm caused by a product. The action lies against
manufacturers of that product.
 Where the product is only defective and has not caused any
harm, there shall be no action in tort.

The rule in Donoghue v Stevenson

 Lord Atkin laid out a narrow rule in the case:

o A manufacturer of products owes a duty of care to the
ultimate consumer of his product to take reasonable care in
preparation of that product.
o the duty applies to products which the manufacturer
intends to reach the ultimate consumer in the way they left
him, with no reasonable possibility of intermediate
examination.
 The rule herein sets out elements required for the action.
o Who owes the duty?
o Who is owed the duty
o The Product
o Breach of the duty
o Proof of negligence
o Causation
o Damages

a. Who owes the duty?
 Per Lord Atkin, the duty is owed by the manufacturers.
 The general understanding is that the duty is owed by every
person who puts into circulation a product which is not safe
 This could include manufacturers, wholesalers, repairers
of products.
 This has also extended to builders and local authorities
responsible for building.

b. Who is the duty owed to?

 The duty is owed to the ultimate consumer of the product.
o A consumer is any person who the manufacturer
should reasonably foresee to be the user of their
products.
 Includes purchasers, donees (persons who did not
directly buy the product but received from another),
borrowers and even bystanders who might be injured
(especially in cases of repairs)
o For bystanders, see the case of Stennett v
Hancock;
 The claimant pedestrian was struck on the leg
by a part of the wheel of the defendants’
lorry, which came off as it was being driven
along the road. The defendants had repaired
the wheel shortly before the accident and
were held to be manufacturers. As the repair
had been carried out negligently and the
claimant was a consumer, the action
succeeded.
c. The Product
 Initially, the defective product would be food and
drinks.
 Now that extended all manufactured products
 It now covers motor vehicles, lifts, clothes, cleaning
fluids and buildings.

d. Breach of the duty

 The claimant must prove that the
defendant/manufacturer failed to take reasonable
care in the preparation of the product or putting it up.
 This means identifying a breakdown in the production
process, failure to give out enough instructions,
 Alternatively, the claimant may prove that the
product itself was inadequately produced.
o If the manufacturer notices a defect in their
products and they fail to recall the product from
the market, they will be liable for negligence
 See the case of Grant v Australian Knitting Mills.
o The complainant had bought two pairs of long
pants and wore them without washing for a week.
He then contracted dermatitis from the
sulphites found on the pants and died from it.
o The defendants had not put out any instructions
to wash before wearing and it was significantly
intended that it must be worn as supplied.

e. Proof of Negligence.
 The onus of proof is on the claimant that the
defendant’s product was defective, that the injury was
 caused due to the defect and the defect was due to
the manufacturer’s lack of reasonable care.
 According to Grant v Australian Knitting Mills, the
negligence might be inferred from the fact that the
product left the manufacturer in a defective state.

f. Causation
 Here, the claimant must prove that the defect was
due to the manufacturer and he intended the product
to reach the consumer in the defective state.
 Alternative causes absolve the manufacturer’s
liability.
o This means that where it is proved that the
defective was caused by another person in the
chain of distribution, the manufacturer will not
be liable.
o The product must reach the consumer as
intended by the manufacturer, though the
statement must not be taken literally.
 Even change of packing might still render
the manufacturer liable. The defendant
must show that the packaging must have
caused some chemical defect.
o Under this head, the mere possibility of an
intermediate examination that might lead to
the defect is immaterial and still renders the
defendant liable.

g. Damage
  The rule states that the defect must cause damage to
the claimant.
o The damage could either be:
 Physical harm to the person of the claimant
 Property damage
o However, now damage caused by defective
products has been extended to any economic loss
that might be realized.
 See the case of Muirhead v Industrial
Tank.

Defense to Product Liability

1. Warning and Instructions

2. Alternative causes
3. The defendant proving that the product was stolen and
circulate by a third party before he could test it for defects.
NUISANCE IN A NUTSHELL

Definition and background

● The genesis of the tort of nuisance is found at section 28 of the

constitution which says that a person should not be unreasonably
deprived of property.
● The layman definition is that nuisance is the unreasonable
interference of another person’s enjoyment of the right to
property.
● One important point to make at this stage is that nuisance is
concerned with the type of harm caused and the interest invaded,
rather than the defendant’s conduct.
● The tort is divided into three forms:
○Private nuisance

▪ deals with disputes between adjacent landowners.

▪ involves drawing a balance between the right of one
person to use their land in whatever way they wish
and the right of their neighbor not to be interfered
with

○Public nuisance.

▪ Every public nuisance is a criminal offense that is

enforceable.
▪ In order for one to succeed in a claim of public
nuisance, the plaintiff has to show that (s)he
suffered special damage for the public nuisance.

○Statutory nuisance
 ■ Law passed by parliament that punishes the conduct of
people for nuisance caused.

[Link] Nuisance

● Private nuisance is an unlawful interference with a person’s

enjoyment of land, a right over it, or any right in connection
with it.
● Mainly, actions under this head are brought under Land Law.

Who Can Sue?

● The claimant must be the one who has sufficient legal

interest in the land or have possession of the same affected
by the private nuisance
0 See Malone v Laskey [1907] for the origin of the
principle and,
○ See Hunter v Canary Wharf [1997] for the
confirmation of the principle on who are the claimants.

Who Can be Sued? (defendants)

● The defendant in a nuisance action is categorically driven

into three

a. Creators
● The creator of any nuisance may always be
sued even when he is no longer in occupation
of the land from which the nuisance originated
● The defendant should have reasonably
foreseen damage of the relevant type when
the alleged act of nuisance was done.
 ● The creator will not be liable for any
continuing damage when they are unable to
rectify the situation.

b. Occupiers
● Mostly, the occupier of the land from which
the nuisance originates can be sued.
● The occupier is responsible for nuisance
created by themselves, their servants
(through vicarious liability)
o They are however not liable for nuisance
created by the independent contractors.
● The modern law can be stated as being that an
occupier is liable for nuisances caused by a
trespasser or act of nature, where the
occupier is or should be aware of the
presence of the nuisance on their premises
and has failed to take reasonable steps to
abate the nuisance.

c. Landlords

● The general principle is that landlords are not

liable for nuisance caused by their tenants as
they are viewed to have parted away with their
control.
● There are however two exceptions to this
principle:
o Where a nuisance existed at the time of
the letting, the landlord will be liable if
they knew or ought to have known of the
nuisance before letting.
 o The landlord will also be liable if they can
be said to have authorized the nuisance

What are, then, the elements of the tort of nuisance?

 The tort is divided into three key elements

0 There has to be an interference

● The interference could take a number of forms, for
instance:
▪ Physical damage to someone’s land
▪ Substantial interference with land
through smells, vibrations, noise, dust
and emissions.
▪ Encroachment onto land by roots.
○The interference has to be unreasonable

● To decide whether an interference is unreasonable,

the courts will take into account the following
factors:
o Abnormal activity (sensitivity of the land)
being carried out on the defendant’s land.
▪ Robinson v Kilvert
o Locality including those cases involving
planning permission
▪ Sturges v Bridgman
o The duration of the nuisance
o Malice accorded, and
▪ Christie v Davey
o Public utility of the activity creating the
nuisance.

○That the interference caused damage

 ● This takes three forms according to the hunter v
canary wharf case;
o Encroachment into someone’s property where
the activity carried out by the defendant
directly affects the claimant’s property.
o Where the defendant’s use of land causes
physical damage to the claimant’s property.
o Where there is an interference with the
claimant’s enjoyment of their property
including cases involving noise or odor.
● Courts will be more willing to find the nuisance
where physical damage to property has occurred.
● Earlier on, the tort of nuisance was a strict liability
tort.

● One important thing to note is that longevity or continuity

of the nuisance is of essence for the action of nuisance to
be successful.
0 See Bolton v Stone [1951] 1 All ER 1078

DEFENCES TO NUISANCE
● Coming to nuisance
o Not a complete defense as it is within human kind to take
reasonable care of others
o However, if the claimant had tolerated the nuisance but
changed how they used their land by introducing sensitive
materials, the defendant can raise a defense.
▪ With regard to sensitivity, If the damage is due more
to the sensitivity of the claimant’s property than to
 the defendant’s conduct then no nuisance is
committed.
● Prescription
o it will be a defense to show that the nuisance has been
actionable for a period of 20 years and the claimant was
aware that it affected his interests during the relevant
period.
o It is essential to note that the start of this 20-year period
is not from the start of the activity itself, but from the
start of the time that the activity became a nuisance.
o See Sturges v Bridgman
● Contributory Negligence
o If the defendant can show that omission from the claimant
in taking reasonable steps led to the nuisance, the claimant
can be said to be contributorily negligent.
● Statutory Authority
o Where a statute orders something to be done, there will be
no liability in nuisance for doing this and for any inevitable
consequences.
o An inevitable consequence is one which cannot be avoided
by the use of due skill and care.
● Usefulness
o This is simply a question of public utility as a defense,
rather than a factor of reasonableness.
o However, the fact that the defendant’s activity of public
utility is not a defense.
o See the following cases:
▪ Sturges v Bridgman [1879] 11 Ch D 852
▪ Lawrence v fen Tiger [2014] UKSC 13
▪ Trevett v Lee [1955] QB 966
● Nuisance due to many
 o Where the nuisance is caused by a number of persons, it is
not a defense for the defendant to prove that their
contribution alone would not have amounted to a nuisance.

The rule in Rylands v Fletcher

The plaintiff was Thomas fletcher and the defendant was Rylands. D had constructed a reservoir on his land
to supply water to his powered textile mill. Fletcher’s land neighbored that of Rylands’. Fletcher operated
mines and had excavated up to disused mines underneath the land where the reservoir was built. The reservoir
was built by independent contractors and engineers and when they came across some mineshafts that were no
longer in use, “they made no attempts to fix the shafts”. After completion, water burst and flooded into
Fletcher’s land and mines causing damage. Fletcher therefore sued Rylands.
The HOL dismissed Rylands appeal after the exchequer court had found for the plaintiff. Although the
defendants had not been directly negligent, the defendants still had to pay damages to the plaintiff and they
conformed to it.

The ratio decidendi in the case is “a person who for his own purposes brings onto 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. …answerable for all damage which is
the natural consequence of its escape. The use of the land must amount to a non-
natural use”

The case developed what would be called the “strict liability” –

which meant that regardless of whether or not the occupier who
accumulated the dangerous escaping thing is at fault, he/she will be
liable to the claimant who suffered personal loss or damage to
property. To successfully bring a claim under the precedence of
Rylands v Fletcher, the court must establish the following;

1. that there was a dangerous thing that was brought onto the land.
 ● It should be noted that the thing herein must be one “likely
to cause mischief” but it does not mean the thing has to be
dangerous in itself.
2. The accumulation must be a non-natural use of land
● The defendant must have accumulated or brought the
“dangerous thing” in a course of “non-natural use of land”
● In this case, the Rylands brought water and built a
reservoir which was a non-natural use of land.
3. There has to be an escape of the dangerous thing.
● The defendant is only liable where the damage is caused by
the escape –
o Escape was defined by Blackburn J to mean “escape
from a place where the defendant either has
occupation or control over land to a place without his
control or occupation.
4. The damage must be reasonably foreseeable

Criticisms of The Rule in Rylands vs Fletcher.

The rule established in the case of Rylands v Fletcher has attracted

several criticisms over the years. Here are some common criticisms
associated with this rule:

1. Strict Liability: One of the primary criticisms is that the rule

imposes strict liability on the defendant, regardless of their level of
fault or negligence. Under the rule, a person who brings something onto
their land that escapes and causes damage to another's property will
be liable, even if they took all reasonable precautions to prevent the
escape. Critics argue that strict liability may lead to unfair outcomes,
as it places an excessive burden on the defendant.
It hinders the right to economic development for the defendant if the
court finds him to use it unnaturally which disturbs how the defendant
would make a living.

The other criticism centers on who defines what categorizes as a non-

natural use of land. The definition is fairly subjective and no objective
test has been developed.

2. Lack of Fault Requirement: Related to the first criticism, the rule

does not require the plaintiff to prove negligence or fault on the part
of the defendant. The focus is on the escape of the substance or thing
and the resulting damage. Critics argue that this undermines the
principles of fault-based liability, as the defendant can be held liable
for damage caused by an escape, even if they were not negligent.

3. Scope of Liability: The rule's scope of liability has also been

criticized. It applies only to non-natural uses of land, which are defined
as activities that do not naturally occur on the land in question. Critics
argue that this narrow definition limits the application of the rule and
fails to address situations where harm is caused by natural uses of land
or other non-obvious activities.

4. Overcompensation: Some critics argue that the rule often leads to

overcompensation of the plaintiff. Since liability is strict and fault is
not a requirement, defendants may be held responsible for damages
that are disproportionate to their actual fault or the harm caused.
This can result in unjust outcomes where defendants are burdened
with excessive financial liability.

5. Inadequate Defenses: The defenses available under the rule are also
subject to criticism
justifications of rule of Rylands

MC Mehta v. Union of India (1987) and subsequent related cases have helped to resolve some
of the criticisms associated with the principle of strict liability established in Rylands v.
Fletcher.

1. Clarification of "Unnatural Use": In MC Mehta v Union of India, the Supreme Court of

India interpreted the principle of strict liability established in Rylands v. Fletcher to
include not only "unnatural use" of land, but also "ultrahazardous" activities that pose a
significant risk of harm to others. This clarification of the definition of "unnatural use"
has provided greater certainty and clarity in the application of the principle of strict
liability.
2. Expansion of Strict Liability: In MC Mehta v Union of India, the Supreme Court of
India expanded the scope of strict liability to include not just harm caused by activities
on land, but also harm caused by activities in the air and water. This expansion of strict
liability has helped to address concerns that the principle established in Rylands v.
Fletcher was overly narrow and outdated.
3. Environmental Protection: MC Mehta v Union of India have been significant in the
context of environmental protection, as the cases have been used to impose strict
liability on polluters and other industries that pose a significant risk of harm to the
environment. This has been seen as a positive development, as it has helped to ensure
that individuals and businesses are held accountable for the harm that they cause to
the environment.
TRESPASS IN A NUTSHELL
● The tort of trespass is subdivided into three categories from the
onset:
o Trespass to the person
o Trespass to land
o Trespass to Goods

● The first two of these types bear the same characteristics, that
is, they are:
o Actionable per se
▪ The damage does not need to be caused or shown.
o They each require a direct and physical act to be committed

i. TRESPASS TO THE PERSON

● The law is designed to prevent and protect the intrusion in the
person. People’s individual liberties should be protected.
o See section 21 of the constitution which discusses the right
to personal privacy.
o See also section 19 of the Constitution which discusses the
right to dignity and personal freedoms.
● The tort aims at the interference into somebody’s integrity and
privacy and makes sure that there should be a balance between
what is reasonable and what is not.
● Trespass to the person has been categorized into three
o Tort of battery
o Tort of false imprisonment
o Tort of assault.
● The tort of trespass to the person has a number of features
which are that:
i. It actionable per se. this means that the claimant does not
have to prove actual damage for the action to succeed. An
 unwanted contact may amount to trespass although actual
physical contact was not present.
ii. Trespass has to be direct and physical. Here, where the
trespass is caused by an indirect act, the remedy for the
case is found in negligence or nuisance, not trespass. An
example is where A throws a stone and hits B – which is
trespass, unlike where A throws a brick on the road which C
trips over – which is negligence.
iii. The defendant’s state of mind or mental element needs to
be considered as the tort is not one of strict liability but a
fault-based tort.

1. BATTERY
● This is the direct and intentional application of physical
force to another person without the person’s consent.
The application must be intentional and voluntary.
● Any unintentional force becomes battery if no efforts
are made to rectify the situation.
o where the defendant unintentionally stops his car
on the foot of a police officer, there was no
battery. Battery comes into being, however, when
he refuses to remove the vehicle.
o See Fagan v Metropolitan Police Commissioner.
● The following elements are involved
o There must be contact with or through physical
force.
▪ From the point above about the tort involving
direct and physical contact, the same school
of thought must be applied herein. Merely
obstructing someone’s progress with no
contact doesn’t imply battery therefore no
trespass as well.
o Intention to do what you have done.
 ▪ This aspect must be proved as a matter of
fact based on the set of facts that are
presented before the court.
● See Wilkinson v Downton [1897] 2 QB 57

Downton (D) made a joke to Mrs. Wilkinson (W) that her husband, Mr. Thomas Wilkinson (T) had been
seriously injured in an accident where both his legs were broken and W was to go to a pub where T was lying
to bring him home. Although the statements were false, D intended W to believe them who suffered shock.
W had no predisposition to the nervous shock which caused her weeks of suffering and incapacity that
followed was not part of a previous illness either.
It was held that D had willfully made a false representation to W intending to cause some physical harm to W,
by infringing her right to personal safety, with no justification for doing so. Wright J observed that since there
was no physical touching there could be no grounds for a claim in battery and since W did not apprehend any
immediate physical violence, no claim would lie in common law assault either.
Check LawTeacher for a detailed summary.

● Here, it should be noted that, according to salmond, it is

the act itself and not the injury that mut be intentional.
● It should also be noted that normal contact of everyday
life is not battery. However, a grey area exists and
courts have a tough job of drawing the borderline.
Collins v Wilcock

A police officer wished to question a woman in relation to her alleged activity as a prostitute. The woman decided to
walk away, but the police officer was intent on stopping her and in order to do so, grabbed her arm in order to prevent
her from walking away. Under the Street Offences Act 1959 c.57, the police officer had no power to detain the woman.
The woman struggled with the police officer and scratched him. She was charged with assaulting a police office in the
course of his duty. The woman’s charges and conviction were quashed and the court took advantage to redefine the
meaning of hostile touching.
Goff LJ stated that the court started with the fundamental principle that every person’s body is inviolate. Interference
with a person’s body will generally be lawful where they consented to it. There is also a broad exception to allow for the
exigencies of everyday life such as jostling in the street and social contact at parties. This is a question of physical contact
which is generally acceptable in the ordinary conduct of everyday life.

In trying to buttress the point, there was the case of

Wilson v Pringle [1986] 2 All ER 440

The defendant, as a practical joke, pulled the schoolbag of the claimant off his shoulder during what D claimed to be a “horseplay”. P
alleged that D committed the tort of trespass in the form of battery by unintentionally jumping on P. the act however resulted in P
falling to the ground and sustaining injuries. The trial Judge held that trespass was made out – he held that so far, all that needs to be
shown was that a defendant’s act is hostile, that hostile means ‘not within the accepted modes of behavior’.
The court of appeal allowed D’s appeal that no battery had been committed. The Court of Appeal held that the act of touching the
claimant had to be intentional and the touching had to be a hostile touching. The relevant intention was the intention to do the act.
There need be no intention to cause damage. The Court further held that hostility should have been proved as a matter of fact, not
just in display. If not, then the claimant must plead the facts which they claim demonstrate that the touching was hostile.
 2. ASSAULT
● This is any act that causes another person reasonable
fear or to apprehend the infliction of immediate, unlawful
force on his person.
● The tort of Assault and battery go together such that
for assault to be committed the claimant must have
reasonable apprehension of immediate battery.
● Assault can be sued under both criminal law and law of
torts.
● Assault could be in words, attitude, or by conduct.
● The distinction from battery is that the defendant did
not use any physical force but only threatens the other
with imminent danger.
o See Wilson v Pringle [1986] 2 All ER 440
Thomas v National Union of Mineworkers [1985] 2 All ER 1

During a set of strikes organized by the National Union of Miners (NUM – the Defendant), the Claimant, who was a miner, wanted to
continue working in the mines instead of going on strike. To do so, He had to be bussed to the mines with others so that they could get to
work through the protests. Every day this involved being driven through an aggressive crowd of striking miners (organized by the
Defendant) who shouted threats towards the Claimant in addition to making violent gestures in their direction. The claimant was, however,
always protected by police at the scene and the bus itself. The Issue was whether the miners had to follow through with their threats to
commit assault.
The court held that the actions of the Defendant could not constitute an assault as the crowd lacked the capacity to immediately carry out
its threats. Capability to put a threat imminently was a necessary aspect of the tort of assault. However, the actions of the Defendant were
actionable under the tort of nuisance, since they interfered with the Claimant’s right to use the highway and to attend work without
harassment.

Tuberville v Savage [1669] 1 mod Rep 3

A man placed his hand on a sword and said to another “if it were not assize-time, I would not take
such language. The issue was whether such an action and the words would suffice to assault.
The court held that an assault required two things (1) an intention and (2) the act of assault. The
facts herein did not give rise to any intention as he merely showed that he would have had the
intention if it were not the assize season. Thus, there could be no assault as there was no intention
nor the act of assault , not imminent threat thereof.
DEFENSES TO TRESPASS TO THE PERSON
● Consent
o Could be express consent or implied consent
▪ Implied consent presents ambiguities
o Any consent should be limited to the act for which the
consent is given.
o Consent must be real and not induced by duress, fraud or
misrepresentation.
● Self Defense
o Where reasonable force is used in defense of the
defendant’s person or property or in defense of another
person.
o The burden of proof is on the defendant and what amounts
to self-defense is a question of fact in each case and the
principle is that the force used must be reasonable in
proportion to the attack.
● Contributory Negligence.
● Ex Turpi Causa
o The defense of Ex Turpi Causa or illegality arises where the
court may deny an action to a claimant who has had a tort
committed against them whilst they were participating in
criminal activity.

3. FALSE IMPRISONMENT
● This is the unlawful imposition of constraint on another’s
freedom of movement from a particular place.
● The tort has three requirements
a. The restraint on the claimant must be total.
 i. One other question that arises from the same is
whether the claimant must know that he is being
wrongfully imprisoned. It was agreed that it is not
a necessity because of the importance of the right
to liberty.
b. The defendant must intend to or be reckless to the
claimant’s restriction on the freedom to movement
● False imprisonment requires an intentional act.
● for instance, if a security guard locks an office door
believing the office is empty but in fact locks the
claimant in there is an intention to lock the door but
no intention to detain. False imprisonment is not
committed but it may be negligence.
● If the defendant locked the door suspecting that the
claimant was in the office then the tort is committed
on the basis of subjective recklessness.
c. The restraint must be without any lawful justification.
● A person may be able to impose a lawful restraint on a
person.
● Where a person is carrying out a lawful arrest, no false
imprisonment is committed, even if the person arrested
has done nothing wrong.
● In order for the arrest to be lawful, the person making
the arrest must follow the procedure set down by law.
TRESPASS TO LAND IN A NUTSHELL
● Trespass to land is an unjustifiable interference with the
possession of land. The tort is committed against the possession
and not ownership of the land.
o see Esso Petroleum Co Ltd v South Port [1956] AC 218
o League Against Cruel Sports v Scott [1986] QB 240
o DPP v Jones [1999] 2 All ER 257 – (trespass by wrongful
entry)
o Holmes v Wilson [1839] 10 A & E 503 – (Trespass by
placing objects on land)
● The tort is actionable per se and the claimant does not need to
show any damage to land as a result of the trespass.
● Trespass is demarcated into:
o Trespass by Wrongful entry
▪ The commonest form of trespass – personal entry on
the claimant’s land by the defendant.
▪ The slightest crossing of the boundary will be
sufficient.
▪ Entick v Carrington [1765] 19 State Trials 1029 –
(Trespass by wrongful entry)

o Trespassing by remaining on land

▪ Where the defendant refuses to leave after the
claimant had removed their consent for the
defendant’s stay.
▪ This is very much in the same understanding as the
first one.
o Trespass ab initio
▪ Where the defendant’s entry is by authority of law as
opposed to the claimant’s authority and the defendant
subsequently abuses that right, then they become
trespasser ab initio (from the moment of entry).
 ▪ An example is police use of search warrants.
▪ Chic Fashions 9 West Wales) v Jones [1968] 2 QB 299
– (Trespass ab initio)
o Trespass by placing objects on land
▪ It is trespass to place any chattel on the claimant’s
land. This is also known as continuing trespass.
● This is because the trespass continues for as
long as the chattel remains on the claimant’s land.
o Trespass above and beneath the surface
▪ The person who owns the land also owns the sky and
the subsoil beneath.
▪ Trespass can therefore be committed by a person who
digs a tunnel under the land and anyone who abuses the
airspace.
▪ See Manchester Airport plc v Putton [2000] QB 133

DEFENSES TO TRESPASS TO LAND

● License
o A license is that consent which merely prevents acts for
which consent is given from being wrongful.
o Unless the actions of the defendants exceed the limitations
of the license, a tort is not committed where the defendant
has authority of license.
o Different types of licenses can be revoked at any time e.g. a
contractual license, a bare license
o A license coupled with interest e.g., a profit is irrevocable
● Justification by law
o Acts which would otherwise be trespass are not so when
justification is provided by law. For example, the police have
powers to enter premises and to search them.
● Necessity
o It is a defense to show that it was necessary for the
defendant to enter the claimant’s land.
 o It is for the defendant to prove that the necessity arose
without negligence on their part.
o See Cope v sharp [1912] 1 KB 496
o See Rigby v chief constable of Northamptonshire [1985] 2
ALL ER 985

REMEDIES
● Re-entry
o A person who is entitled to possession can enter or re-enter
the premises.
o A reasonable amount of force may be used to evict a
trespasser.
o See Hemmings v Stoke Poges Golf Club [1920] 1 KB 720.
● Ejectment
o A person who has been dispossessed may bring an action for
ejectment where re-entry is impossible.
o A claimant can only recover on the strength of their own
title and not on the weakness of the defendant’s.
o The defendant only needs to assert that they are in
possession and the claimant must then show that their title
is better than the defendant’s.
● Mesne Profits
o An action lies for damage which the claimant has suffered
through being out of possession of land.
● Distress damage feasant
o An action lies for damage which the claimant has suffered
through being out of possession of land.
o See Arthur v Anker [1996] 2 WLR 602
● Injunction
o Where a trespass is threatened or where the trespass is of
a continuing nature, then the claimant may seek an
injunction.
o See Llandudno UDC v Woods [1889] 2 Ch 705
● Damages.
o Where the trespass is trivial, the damages will be nominal,
but where the trespass involves some beneficial use of the
land, the claimant is entitled to a reasonable remuneration
for the use of the land…
o See Ramzan v Brookwide [2011] 2 ALL ER 38

Exam tips
● Read Rylands v Fletcher.
o Search for the criticisms over the rule in the
case of Rylands v Fletcher.
o Juxtapose the tort of nuisance and negligence
and whether nuisance is not a standalone tort but
simply a tort of negligence.
 However, over the years, some distinctions have
been highlighted between the two torts. While
nuisance protects interests in the enjoyment of
land, negligence deals with breach of duty of
care which a person owes to others. Unlike
negligence, a claimant seeks remedy in the form
of an injunction rather than damages in nuisance.
This is because the main aim in nuisance is that
the neighbour, against whom a complaint is made,
should abstain from carrying out an activity
which causes unlawful interference. Plus, in
nuisance, the concepts of magnitude and
unreasonableness are context-dependent.
Whereas in negligence, the reasonableness is set
from a reasonable man’s point of view, in nuisance
we can’t have an objective outlook. It is not
concerned with whether the defendant passes
the ‘reasonable man’ test or not. Nuisance mainly
 deals with the unreasonableness of the outcome,
rather than the unreasonableness of the
defendant’s act. The law of nuisance mainly deals
with violations of land or interests in or over the
land and is not designed to cover personal
injuries, which negligence does.

● Make sure to understand the tort of defamation

o Notice the distinction between libel and slander
o Read decisions that have concluded differently
on the same point of law.
● Make sure to understand clearly what salmond said
about tortious liability.
o Find the meaning of terms like strict liability,
vicarious liability.
● Make sure to be able to write a coherent and cogent
argument and be able to extract the ratio from a set
of facts.
● Know that one transaction can bring about multiple
torts. Whilst handling factual questions, before
answering, isolate the possible torts included, check
for the remedies – adding cases if necessary.
o Questions are to be found in the last paragraph
of the factual question.
o Take note of the conjunctive or disjunctive
words.
o Read the cases given in class.
● Have at least three cases on each of the torts covered
in the semesters.
●
Tort Case 1 Case 2 Case 3 covered
Vicarious Cox v Muhamud v Various
liability Ministry of WM Morrison Claimants
 Justice Supermarkets Case
Employers’ -Smith v Sakonda v SR Daniel Kulima
liability Baker Nicholas v Alpha
Security and
Gould v another
Minister of
National
Insurance
Occupier’s Wheat v E Roles v British
liability Lacon Nathan Railways v
Herrington
Product Donoghue v Grant v Stennett v
Liability Stevenson Australian Hancock
Knitting
Defamation Rubber Clifford Cecelia
Improvemen Kajiwa v Kumpukwe v
t v Daily ESCOM AG
Telegraph
Lynch v Knight
Nuisance Lawrence v Hunter v Sturges v
Fen Tigers Canary Wharf Bridgman
[2014] [1997] 2 All [1879] 11 Ch D
UKSC 13 ER 426 852
Trespass Entick v Cope v Sharp Esso
to Land Carrington Petroleum v
Southport
Trespass Wilson v Fagan v Thomas v
to the pringle Metropolitan National Union
person Police of
Mineworkers