ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW
AND SOCIAL SCIENCES

MODULE: LL 1 / 1/.. J1 l

LAW OF TORTS 1

Judge (Rtd) K C Chanda

LLB (UNZA), LLM (UNZA), LLM (London)
First Edition 2005
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MODULE LLB 1 /)j_ J.1 i

LAW OF TORTS 1

Judge (Rtd) KC Chanda

LLB (UNZA), LLM {UNZA}, LLM (London)
First Edition 2005 · ·
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TABLE OF CONTENTS

UNITS PAGES

Law of Torts Module Outline 1

ONE Nature and Functions of The law of Torts 2

TWO Introduction to the Law of Tort 7

THREE Law of Tortious Liability 20

FOUR The Place of Intention and Motive

and Negligence in the Law of Torts 45

FIVE Trespass and Case 54

SIX Assault and Battery 62

SEVEN False Imprisonment 76

 MODULE 3: LAW OF TORTS

INTRODUCTION TO THE LAW OF TORTS

AIM: The module aims at introducing you to the Law of Torts with special
emphasis being laid on consideration and definition of concept to tortious liability.

OBJECTIVES: At the end of the course you should demonstrate

knowledge of the various attempts and approaches at defining the concept of
tortious liability.

COURSE OUTLINE

1. lntroduct1on to the Law of Torts.

2. law of Torts distinguished from criminal Law and Law of contract.
3. Law of Tortious liability.
4. The place of intention and motive and negligence in the Law of Torts.
5. Trespass and Case
6. Assault and Battery
7. False imprisonment

PRESCRIBED BOOKS

W.V.H Rogers (2002), Winfield & Jolowicz on Tort, 16th ed, Sweet &
Maxwell, London

RECOMMENDED BOOKS

Clerk and Lindell (1989), Torts, 16th ed, Sweet & [Link], London

1
 UNIT ONE

NATURE AND FUNCTIONS OF

THE LAW OF TORTS

OBJECTIVES: At the end of this segment you should be able to understand the
nature of the law of test in terms of:

1. The aims of the Law of Torts.

2. The definition of tortuous liability.
3. The Law of contract and the Law of torts.
4. Concurrence of contract and tort
5. Test and the Law of restitution.
6. Distinguishing between tort and officiatable liability.
7. Test and liability on bailment.
8. Distinguishing between tort and crime.
9. The Law of objection

TOPIC 1: NATURE OF THE LAW OF TORTS

Numerous attempts have been made to define "tort" or "Tortuous liability". with
varying degrees of lack of success. Winfield's definition is discussed below but
that was primarily a formal one designed to distinguish tortuous liability from
other traditional legal categories such as contract or trust. The primary need of
the reader however must be a statement of what a module of this kind is about.
We should begin, therefore, with description rather than with definition and must
be content for the moment to sacrifice accuracy and completeness for the sake
of simplicity. Having given a very broad description of the role of the law or tort
we can then return to the problem of formal definmon, and finally look at the
relationship of parts of system with certain other legal and social institutions
pursuing similar ends.

It is not possible to assign any one aim to the law of tort, which is not surprising
when one considers that the subject comprehends situations as disparate as A
carelessly running B down in the street; or C camng D a thief, or E giving bad
investment advice to F; or G selling H's car when he h~s no authority to do so.
At a very general level, however, ws may say that tort is concerned with the
allocation or prevention of losses, which are bound to occur in our society. It is
obvious that in any society of people living together numerous conflicts of interest
will arise and that the actions of one person or group of persons will from time to
time cause or threaten damage to physical property, damage to financial interest,
injury to reputation and so on-and whenever a person suffers damage he is
inclined to look to the law for redress. But the granting of redress by the law
means that some person or group of persons will be required by the law to
refrain from doing something. This redress may take various forms. In the great

2
majority of tort actions coming before the courts, the claimant is seeking
monetary compensation (damagos) for the injury he has suffered and this fact
strongly emphasizes the function of tort in allocating or redistributing loss. In
many cases, however, the claimant is seeking an injunction to prevent the
occurrence of harm in the future and in this area the "preventive" function of tort
predominates. An injunction is the primary remedy sought, for example, in cases
of nuisance (wrongful interference with the enjoyment of land) and the so-called
"economic torts" such as interference with contract. This is not because
damages are unavailable (they clearly are) but because the defendant is
engaged in a continuing act and the damage suffered by the claimant may not
yet have occurred or may be suffered over a long period of time. Even when the
claim is for damages in respect of a completedwrong, the role of tort can only be
squared in some cases with the idea of compensation by giving that word an
artificially extended meaning. Thus, there are some situations in which the law
imposes upon the defendant an obligation to disgorge the profits he has made
from his wrongdoing, whether or not the claimant has suffered any loss. In a few
situations, where exemplary damages are awarded, the idea of compensation is
dropped altogether in favour of overt punishment; but much more frequently
there are substantial awards of damages (nominally compensatory) for matters
like injury to reputation and interference with liberty, which one cannot even
·begin to quantify in mathematical terms. A couple of nights in the police situation
may attract larger damages than a broken arm, a libel in a national newspaper
more than the loss of that arm. In these cases the law is performing a complex
function incorporating vindication, deterrence and appeasement Some tort
action (for example some claims for trespass to land) may be brought mainly as
a method of obtaining a declaration of rights, notwithstanding the availability
under modern procedure of a specific remedy of that nature. Associated with this
is what a Canadian judge, Linden J., uOmbudsman called" function of tort, under
which those responsibJa for losses typically corporations whose activities cause
major disasters) may be called upon to answer in public for their activities-a
private law version of the .public inquiry. Though the courts in England have
been at pains to discourage this "litigation for the principle of it'-, in some cases
the personal representatives of a murder victim have successfully brought tort
proceedings against the alleged murderer (with little hope of recovering any
substantial damages) as a means of galvanizing the prosecuting authorities into
action. It is perhaps unkind to call tort the dust-bin of the law of obligations, but it
is certainly the great residuary category. No one theory explains the whole of the
law. ·

3
 ACTIVITY: Questions for discussion
1. Give examples of cases of your own which
may constitute a tort.
2. What is tort all about?
3. What is an injunction
4. look up these words and discuss their legal
meanings:-

(a) Vindication
(b) Appeasement
(c) Deterrence
5. What is a declaration of rights

Even where we are concerned with material or financial loss the law clearly
cannot decree that whenever one suffers toss he sttoutd automatically be entitled
to redress from the author of that Joss. If, for example, A begins to trade in a
commodity in a district in which B has previously had a monopoly, A ean clearly
foresee that if he adopts superior methods of business he wm cause loss to B,
indeed it might be said in one sense that his purpose was to cause loss to B, but
he is clearly not liable to compensate B for this loss. Indeed, the law takes quite
the opposite stance by providing that many agreements between traders to
restrict competition are unlawful. There must be some reason in any given case
for calling on the law to provide the redress sought, to shift the loss, otherwise it
lies where it falls. With comparatively few exceptions this reason is fault of some
kind on the part of the defendant. However, the law cannot even go so far as to
order every person whose action be regarded as "faulty" to make redress to
those who suffer by it Paradoxical as it may seem, the law of tort is as much
about non~iability as it is about liability. "Acts or omissions which any moral code
would censure cannot in a practical world be treated as to give a right to every
person injured by them to demand relief. In this way rules of Jaw arise which limit
the range of complainants and the extent of their remedy". Corrective justice (the
principle that wrongs should be righted) points towards liability where a loss has
been inflicted but the demands of distributive justice (the principle that there
should be a fair allocation of assets and losses) also have to be taken into
account. "The truth is that the tort of law is a mosaic in which the principles of
corrective justice and distributive justice are interwoven. And in situations of
uncertainty and difficulty a choice sometimes has to be made between the two
approaches.

4
 ACTIVITY: [Link] for discussion

1. Why would. not the court compensate a

company which loses business to a more
superior company?
2. What in tort defines complaints which can
seek remedy and the extent of remedy?
3. Discuss the following concepts

(a) Distributive justice

(b) Corrective justice

1t is the business then of the law of tort to determine when the law will and when
it win not grant redress fof damage sUffered 6t threatened and tha rules for
liability whereby it does this is the subject of this module. We may say, therefore,
that if a claimant has suffered damage in circumstances covered by the rules for
liability stated in a book on the law of tort, then, assuming the rules to be
correctly stated, the claimant has been the victim of a tort; by this we mean no
more than that a tort is a wrong, the victim of which is entitled to redress. Of
course, if the claimant is unable to establish a tort, it does not follow that he is
without some other form of redress. The act or omission of the other party may
be some other sort of wrong for which a remedy may lie in contract or restitution
or according to the rules of equity governing breach of trust, matters which are
briefty considered in the next section. However, all these categories of private
law are, like tort, concerned with questions of liability. An action founded upon
tort or other wrong is an action between persons, either natural or artificial) i.e.
corporations) and the outcome [Link] be that one of them, the defendant, is or
is not liable to do or refrain from doing something at the su_it of the other. If there
is no defendant whose liability can be established according to the principles of
the law, then the claimant is left without redress so far as private law is
concerned. He may, of course, look to the Welfare State or to a private loss
insurance contract he may have made.

ACTIVITY: Questions for discussion

1. Discuss the statement that the act or

omission of the party constitutes a
wrong.
2. What is an artificial person?
3. When would a claimant go without
redress

5
 , i".;..J/.[Link]/ ,;:!Ml~

DEFINITION OF TORTUOUS Ll;h_BILITY

Winfield's definition of tort was as follows:

Tortuous liability rises from the breach of a duty primary fixed by law; this duty is
towards persons generally and its breach is redressible by an action for
unliquidated damages. ·

At the risk of repetition, we must again stress that in framing this definition
Winfield was not seeking to indicate what conduct is and what is not sufficient to
involve a person in tortuous liability, but merely to distinguish tort from certain
other branches of law. As we shall see, it cannot be accepted as entirely
accurate but it has the merit of comparative brevity and contains elements which
deserve continuing emphasis. It is true that a cause of action in modem law is
merely a factual situation the existence of which enables the claimant to obtain a
remedy from the court so he is certainly not in the position he was 200 years ago
of having to choose the right "form of action" to fit his claim. But even the
comparatively lax modem style of pleading requires the claimant to set out the
elements of the claim which must establish and in practice this will nearly always
involve identifying the tort or other cause of action on which he relies.
·Furthermore, ·statutes and rules of procedure sometimes distinguish between,
say, contract and tort with reference to matters such as limitation of actions,
contributory negligence, service of process and jurisdiction and costs and the
court cannot then avoid the task of classification.

ACTIVITY: Questions for discussion

1. What are the limitations of Winfield's

definition of tort?
2. What are its strengths?
3. In making a plea for a claim what should a
claimant state?

6
 UNIT2
INTRODUCT'ION TO THE LAW OF TORT

OBJECTIVE: At the end of this unit you should be able to:

(a) Distinguish tort from contract

(b) Discuss tort in relation to law of restitution, equitable liability.
(c) Discuss what should constitute

Topic 1 :CONTRACT AND TORT

The first point that must be made Is that from a practical lawyer's point of view
theremay·be a considerable overlap in any a factual situation between the law of
. contract and the law of tort. For example, a claim for damages arising from a
defective product may involve a complex web of issues under the sale of Goods
Act, the law of misrepresentation and collateral warranty, the tort of negligence,
the Consumer Protection Act 1987 and a chain of contractual indemnities among
retailer, middleman and manufacturer. It is unlikely that any legal system can
ever cut loose from general conceptual classifications such as "contract' and
"torr (at any rate they seem to be found everywhere) but the student wilt quickly
come to recognize that the boundary must sometimes be crossed in the solution
of a problem. It has long been trite law that a defendant may be liable on the
same facts in contract to A and in tort to B (notwithstanding private of contract}; it
is now after a period of uncertainty, also clearly established that there may ba
concurrent contractual and tortuous liability to the same claimant, though he may
not, of course, recover damages twice over. However, before we examine these
propositions further we must make some attempt at formally distinguishing the
two heads of liability.

ACTIVITY: Questions for discussion

1. What laws may involve both contract and

law?
2. What happens in terms of damages if a
defendant is liable and contract and tort.

It was Winfield's view that tortuous duties exist by virtue of the law itself and are
not dependent upon the agreement or consent of the persons subjected to them.
I am under a duty not to assault you, not to slander you, not to trespass on your
land, because the law says I am under such a duty and not because I have
agreed with you to undertake such a duty. Winfield therefore considered that
tortuous liability on bailment, neither of which can exist independently of the
parties' or at least of the defendant's agreement or consent. There are, however,
several instances of what is undoubtedly tortuous liability for the existence of

7
 \''i:,¥{ii01t;;:,,,,,, '%,%%

which some prior consent, undertaking or assumption of responsibility on the part

of the defendant is essen!:al. The liability of the occupier of premises to his
visitor, for example, which is now governed by the Occupiers' Liability Act 1957,
is based upon breach of a duty of care owned by the occupier to persons whom
he has permitted to enter upon his premises. The duty owned to trespassers, i.e.
persons who enter without his consent, is not the same. Again, the duty of care
owned by a person who gives gratuitous advice upon a serious occasion is,
doubtless, a tortuous one, but its ·existence is dependent upon the adviser's
agreement to give th& advice, if not necessarily upon his agreement to accept
legal responsibility for it. Still more difficult is the fact that in the some situations
an undertaking (whether or not by contract) by A to. B to perform a service, the
object of which is to confer a benefit upon C, may give rise to liability in tort to C.

It is not true that an tortuous duties arise independently of the will of defendant; it
is equally not true that contractual duties are always dependent upon that will.
Not only is there the obvious point that the. duty not to break one's contracts is
itself a duty imposed by the law, but it is also the case that contractual liability
may exist even in the absence of any true consent between the manifestations of
agreement by the parties, not on their subjective states of mind.

Another mode of differentiation between tortuous and contractual liability, it is

suggested, is to be found in the proposition that in tort the content of the duties is
fixed by the iaw whereas the content of contractual duties is fixed buy itself. If I
consent to your entry upon my premises then the duty which I owe to you is the
duty fixed by the Occupier's Liability Act, i.e. by the law itself, but whether, for
example, my duty is to deliver to you 1O or 20 tons of coal can only be
discovered from the contract between us. Even this distinction, however, is by
no means always valid, for today in many cases the content of the certain quite
specific obligations shall be· contained. in contracts for the sale or hire-purchase
of goods and cannot be excluded and it is now no longer true1 as once, perhaps,
it was, that implied terms in a contract, in the absence of a statutory rule are
always to be based upon the presumed· intention of the parties. Conversely,
there are tortuous duties which are subject to variation by agreement, whether or
not that agreement amounts in law to a contract between the parties.

ACTIVITY: Questions for discussion

1. When are tortuous duties

(a) independent of agreement

{b) dependent on agreement

2. When would one be sued for wrong advice?

3. In relation to duties what is the difference
between tort and contract?

8
At the risk of abandoning the limits of formal definition, a more satisfactory basis
for distinguishing betweer. contract and tort may be sought in considering the
aims of the two heads of liability. The "core" of contract is the idea of enforcing
promises, whereas tort aims principally at the prevention or compensation of
harms, and this difference of function has two principle consequences: first, that
a mere failure to act will not usually be actionable in tort, for that would be set at
naught the rule that even a positive promise will no give legal liability unless it is
intended as legally binding and supported by consideration or the formality of a
deed; secondly, that damages cannot be claimed in tort for a "loss of
expectation", or as it is sometimes expressed. damages in contract put the
claimant in the position he would have been in had the contract been performed,
whereas damages in tort put him in the position he would have been in had the
tort not been committed. However, major qualifications still havs to be made.
Failure to receive the benefits promised under a contract might be regarded as"
harm" but nevertheless the harm suffered because the defendant has not
delivered the goods he promised under the contract is a harm of a different type
from that suffered by a person whose body or property is injured by the
defendant's negligence. There are undoubtedly examples where a liability in tort
arises for failure to confer a benefit on others in the sense of failing to protect
their safety. Some of these are of very long standing, for example the duty of an
occupier to take steps to ensure that his visitors are not harmed by dangers on
his land, even if those are not his making. More recently, it has become common
to impose tort liability upon persons for failure to perform public functions
connected with safety in relation to private transactions connected with safety,
though here there is no overlap with contract of law. The major difficulty in
relation to private transactions is the principle, which has gained great
prominence in the modern law that liability in tort may arise from an ''assumption
of responsibility" by the defendant. When this followed by reliance by the
claimant in failing to take alternative measures for his own protection it may not
be too difficult to say that the defendant has "harmed" the claimant rather than
merely failed to carry out a promise, as where D undertakes to check C's brakes,
fails to warn C that he has not done so and lets him drive off and crash. Since,
however, every contracting party presumably "relies" on the other to perform his
contractual promise; we still, if we take reliance-based liability beyond physical
damage, face the prospect of tort taking over much of the territory of contract.
Thus, if D undertakes to· manage the business affairs of· a syndicate of persons
the members of the syndicate may sue D for negligence in th& management,
whether or not they have a contractual relationship with him. On this basis it is
not entirely easy to say why (as, it is thought, most lawyers would say is now the
law), if S contracts to sen and deliver goods to B by a certain tort liability of the
syndicate manager requires fault (negligence) and the duties of sellers of goods
are strict, but it is hard to believe that the result would be different if it could be
shown that by taking due care the seller could have deliverect on time.

liability based upon assumption of responsibility has often required a very close
relationship between the parties. This is also relevant to the validity of the

9
 second element of Winfield's definition that the duty in tort is owed to persons
generally. The reference now is, of course, to the duty in tort primary duty, i.e.
the duty not to trespass, not to slander and so on, for breach of which tortuous
liability is imposed. The breach of such a duty gives rise to a specific person or
persons whatever source of the liability. Winfield would now be forced to retreat
from the claim that if the primary duty is towards a specific person or specific
persons it cannot arise form tort, but there, is probably still some substance in his
contention that the element of generality was an important factor in the definition
c;1nd white not capable of precise definition, was sufficiently workable in the
majority of cases. However, even leaving aside recent developments, it appears
that everything depends upon the level of abstraction at• which the duty is
expressed. It can, no doubt, be truly stated that by virtue of the law of tort I am
under a duty not to convert to my own use the goods of anybody else, while my
. contractual duty to deliver goods which l have sold is owed only to the person to
whom I have sold them. But this is to compare two statements at different levels.
Just as I have a general duty not to commit the tort of conversion, so I have a
general duty not to commit breaches of contract. If, on the other hand, we
descend to a particular, then just as my duty to deliver certain goods is only to
their buyer, so also my duty not to convert certain goods to my own use is owed
only to the person in possession, or having the immediate right to possession of
them.

As to damages, the law of contract puts the claimant in the position he would
have been entitled to occupy (subject to the law of remoteness} as a result of the
transaction agreed between the parties. While it is clear that (assuming the claim
in tort to arise from some transaction is less fundamental· than might appear. If a
surgeon operates negligently on a curable condition and leaves the condition
incurable, the patient recovers damages on the basis that with careful surgery he
would have been cured; if a solicitor negligently fails to carry out x's instructions
to make a will in favour of C,C can recover as damages the value of the lost
legacy and if the seller of property fraudulently induces the claimant to buy it,
while the claimant cannot recover as damages the profits he would have mad if
the representation had been true, he may be able to recover the profits he would
have earned by laying out his money elsewhere.

ACTIVITY: QuestiQn$ for dis~Q$Sion

1. What is a tort?
2. What are the aims of tort?
3. How may the law of contract and the law of
tort {a) overlap, {b) distinguished?

10
TOPIC 2: CONCURRENCE OF CONTRACT AND TORT

We now return to the point contractual and tortuous duties may co-exist on the
same facts. The proposition that D may incur liability in tort (in particular the tort
of negligence) to Ca matter or transaction in respect of which D had a contract
with B was clearly established in the great case of Donoghue v. Stevenson,
which is the basis of the manufacturer's common law tiabiHty in tort to the
ultimate consumer. However, negligence rests upon tha existence of a duty of
care owed by the defendant to the claimant and in the last resort this is
determined by the contractual context in which the events take place cannot
necessarily be regarded as irrelevant. Thus, for example, it has been held that a
building sub-contractor was not liable in negligence for damage to the works
when the main contract provided that they were to be at the risk of and insurable
by the building owner and an agent answering inquiries. Similarly, too great a
· readiness to hold that a director owes a personal duty of care to persons with
whom his company has dealings risks setting at naught the protection of limited
liability.

As to the other case, where it is alleged that the defendant owes concurrent
duties in contract and tort to the same person, some legal systems have a
doctrine (known in French law as non cumul de$ obligations) that this is not
possible. Though there were signs of this here in earlier days, the weight of the
modern case laws was the other way and the. "concurrence" approach was
decisively affirmed by the House of Lords in Henderson v. Merrett Syndicates
ltd., where it was held that Names at Lloyd's might sue member's agents (with
whom they had a contract) for negligence as well as for breach of contract in the
management of underwriting business so as to gain the advantage of the longer
time limit under the Latent Damage Act 1986. As Lord Goff put it: "the result may
be untidy but, given that the tortuous duty is imposed by the general law, and the
contractual duty's attributable to the will of the parties, I do find it objectionable
that the claimant may be entitled to take advantage of the remedy which more
advantageous to him. Thus, for example, concurrent liability arises between
carrier and passenger, doctor and (private) patient, solicitor and client and
employer and employee. With respect to jurisdiction in Europe, the Brussels and
Lugano Conventions provide, as qualifications to the general rule that jurisdiction
lies in the court defendant's domicile, that a person domiciled in a contracting
state may be sued: "in matters relating to a contract, in the courts for the place of
performance of the obligation in question" and "in matters relating to tort, delict or
quasi-delict, in the courts for the place where the harmful event occurred." In this
context a ready acceptance of the concurrence of contract and tort could give
rise to "spit' jurisdiction and therefore a more restrictive approach will be taken
than under English law. For example, in a case where the obligation under the
contract was to inspect goods abroad, the Court of Appeal rejected an attempt to
base jurisdiction here on the alleged negligence of the defendants in preparing
the report which was submitted to the claimants in England, for the claim was still
a "matter relating to a contract". In any event, the expressions used in the

11
 ~ ·'- ··:fi)03Ji:filgl}t/fil@7 'iii.Y'

Conventions must, in order to ensure consistency, be given a "European"

meanlng which avoids the differences in classification among the law of
contracting states.

The above cases have concerned "adjectival" matters and had the issue in any of
them been one of the substances of the defendant'.s duty it might have been a
matter of indifference whether the claim was regarded as lying in contract or tort
because the duty would have been the same, For example, a doctor's duty in
tort is to exercise proper professional care and skill and the implied terms in his
contract are the same: he does not impliedly warrant. that he will affect a cure,
though theoretically he may do so by an express promise to that effect
However, there have been a number of cases in which attempts have been made
to use the general duty of care in tort to override the allocation of responsibility
between the parties by contract. tf the contract were to provide expressly that
· the defendant was not liable for "risk X' then (subject to the effect of the Unfair
Contract Terms Act 1977 upon that term) it would be assured to allow a tort duty
to intrude and contradict that. The same must be true where there is an implied
term in the contract that the defendant is not to be liable for "X" (or, as it would be
more likely to be expressed, there is no implied term that he should be liable for
thaf risk}. Herice in Tai Hing Cotton· Mill Ud; [Link] Chong· Hing Bank· Ud. The
1
claimants employees had forged some 300 cheques totaling HKS.5 million. A
forgery is a nullity and the claimants claimed a declaration that the defendant
bank was not entitled· to debit those cheques to their account and was therefore
required to reimburse the claimants. It was established law that a customer's
duty to a bank was (a) not to draw cheques in such a manner as to facilitate
forgery and (b) to notify the bank immediately of a forgery of which he becomes
aware, but on the facts neither of these duties had been broken. The Privy
Council rejected the defendant's contention that the claimants had been in
breach of a duty of care in negligence to the bank. Similarly, the Court of Appeal
has rejected claims in tort where no implied term could be established that a
mortgage owed any duty to ensure that the managing agent of a ship kept her
insured for a stipulated sum or that an insurer should inform the mortgage of a
ship when the owners were dishonestly jeopardizing the cover. However, in Tai
Hing Cotton Mill, Lord Scarman went so far as to say that there was no
"advantage ... in searching for a liability in tort where the parties are in a
contractual relationship" a proposition which plainly no longer represents the law
after Henderson v. Merrett Syndicates Ud.

12
 ACTIVITY: Questions for discussion - TRUE OR FALSE

1. The tort of negligence may (:onnect overlap with contractual

duties.
2. The case of Donohue v. Stevenson is the basis of the
manufacture's common law liability in tort and contract.
3. Contractual and tortuous duties in the same. care may require
that the concurrence approach be used.
4. A contractual Taituma Cotton Mill relationship between two
parties had no tortuous liabilities.
5. Henderson v. Merritt Syndicates Ltd. Agrees with Herd
Scannan.

TOPIC 3: TORT AND THE LAW OF RESTITUTION

The Jaw of restitution is concerned with the liability of a person to pay money to
another on the ground of unjust enrichment. One simple example of
restitutionary liability is to repay money which has been paid under a mistake of
fact. l owe you £100 to. I pay the £100 your twin brother whom t mistake for you
and he honestly believes that he is entitled to the money. Another is the. liability.
of a seller to repay the price of goods when he fails to deliver. In both cases
there is a duty to repay the money and so the defendant is under a remedial .
duty. But in the first case it cannot be said that this remedial duty is the result of
the breach of some primary duty: it would be meaningless to say that your twin
brother was under duty not to accept the money from me or that he was under a
duty of any kind save the remedial duty to return the money to me because
otherwise he would be unjustly enriched at my expense. In the second case
there is certainly a primary duty...to deliver the goods-from which the remedial
duty arises, but it is contractual, not tortuous.

This is not to say that there. is no connection between tort and restitution.
Historically, the claimant may "waive" some torts and, instead of claiming
damages for the loss he has suffered, claim in restitution what the defendant has
received by the wrong. Secondly, for some things which are undoubtedly
wrongs, though they may lie on or beyond the fringe of what is commonly
classified as the common law of torts (for example breach of confidence, breach
of copyright) the claimant may directly claim, without reference to any procedural
fictions, an account of the defendant's profits. However, except in those cases
where the remedy of an account. granted by statute it is more clos~ly associated
with equitable wrongdoing, in particular with breach of fiduciary duty. Thirdly,

13
 ~,,::>±t~"l ,; '));•

there are cases where the defendant has taken or misused the claims but on the
basis not of the claimant's loss but reversal of the defendant's gain.

ACTIVITY: Questions for discussion

1. Compare and contrast the law of restitution

with the law of tort

The third element of Winfield's definition is that the breach of duty is redressible
by an action for unliquidated damages. A claim is said to be "liquidated" when it
is for a fixed, inelastic sum or one which is calculable by the mere process of
arithmetic. This serves to distinguish tort from at least sonie of the quasi-
contractual heads of restitution (for examp1e, the claim for the return of money
paid under a mistake) and from statutory actions for penalties. It is not, of course
a sufficient test of tort liability that the remedy is un-liquidated damages for these
are also the primary remedy for breach · of contract, but it seems to be a
necessary one: if, assuming the claimant can make out the elements of the case,
he cannot recover un-liquidated damages then whatever claim he may have, it is
not for tort. We should hasten to add that un-liquidated damages are not the only
remedy for tort and in the case of some torts they are not even in practice of the
primary remedy.

TORT AND EQUITABLE LIABILITY DfSTINGUISHED

If a trustee misappropriates property which he holds upon trust for a beneficiary,
the beneficiary can claim compensation. That compensation is not damages at
all, though as a practical matter in some cases it may come close to the
damages which would be awarded for misappropriation of property by a tort. The
relationship of trustee and beneficiary is simply the best known example of a
wider equitable concept of a fiduciary· relationship, the distinguishing feature of
which is an obligation of loyalty and which has several consequences, for
example that the fiduciary must not profit from his position or put himself in a
position where there is a conflict between his won interests and those of the
person to whom he owes the duty, but which wilt also lead, where necessary, to
the award of equitable compensation. Hence, a claim for breach of fiduciary duty
may lie in parallel with a tort claim against, for example, a solicitor on behalf of
his client and the concept has even been called in aid in Canada and New
Zealand in cases of sexual abuse. However, equity recognizes duties which do
not turn on "disloyalty" and which are in substance duties of care. ln Henderson
v. Merritt Ltd. Lord Browne-Wilkinson said ·

"The ability of a fiduciary for the negligent transaction of duties is not separate
head of liability but the paradigm the general duty to act with care imposed by
law on those who take it upon themselves to act for or advise others. Although

14
the historical developments of the rules of law and equity have, in the past,
caused different labels to be stuck on different manifestations of the duty, in truth
the duty of care imposed on bailees, carriers, trustees, directors. agent and
others in the same duty: it arises from the circumstances in which the defendant
were acting-, not from their status or description. It is the- fact that they have
assumed responsibility for the property or affairs of others which renders them
liable for the careless performance of what they have undertaken to do, not the
description of trade or position which they hold.

ACTIVITY: Questions for discussion

1. Distinguish between tort and equitable

liability

Perhaps the time is approaching to assimilate equitable wrongdoing with the law
of tort but the force of history is powerful in English law and for the moment it is
probably safer to say that the streams run in different channels even though
the patterns they produce may have similarities. Even now, although law and
equity have long been fused and questions relating .to trusts may incidentally
arise in tort cases, actions related to matters of trust are allocated to the
Chancery Divisional of the High Court. The distinctiveness of equity. (at least at a
theoretical level) has been affirmed in situations which might have been
absorbed into the tort of negligence. Thus, a mortgage of property exercising a
power of sale may have to take care to obtain a proper price and a receiver who
carries on a debtor's business for the creditor may have to run it properly, but
these duties are owed in equity and not in negligence on the basis of
"neighborhood"

ACTIVl1Y: Questions for discussion

1. What are the three elements of Winfields

definition of the law of
restriction

TOPIC 4: TORT AND UAB1LITY ON BAILMENT

A bailment is a delivery of goods on a condition, express or implied that they
shall be restored to the bailor, or according to his directions, as soon as the
purpose for which they are bailed has been completed. The person who delivers
the goods is called a "bailor"; the person to whom they are delivered is the
"bailee". Common examples of bailment are hire of goods, such as hire or a car

15
 Y:b1KM:W'!

from a garage; gratuitous loan of goods, such as lending this book toa friend and
pawn or pledge. If the bailee misuses or damages the goods he ts, of course,
liable in a civil action to the baHor. Is this liability to be disUnguished from liability
tort? Many bailments arise out of contract,. but it is undoubtedly possible for
baHment to exist without contract and where this is the case, as in the gratuitous
loan of something for the use of the borrower, what is the nature of the liability?
Wtnftetd's opinion was that the bailee's liability is not tortuous [Link], he said,
the duty arises from a relation, that of bailor and bailee, which is created by the
parties. No one need be a bailee if he. does not wish to be. one .and no one can
have liability for the safe custody of goods thrust upon him against his will. It is
certainly true that a person cannot be subjected to the dutie.s of a bailee without
his consent but as we have already seen, there are duties which are undoubtedly
tortious and which can only exist if there has been some prior ~greement
between the parties so it may be argued that there is no good reason for
distinguishing the common law dutie.s of a bailee from duties of this kind.
Furthermore, while it is a requirement of a bailment that the bailee voluntarily
takes custody of the goods, it seems that it is_ not necessary that the bailor should
consent to their custody. If the bailor's claim is necessarily founded upon some
specific provjsion in a contrc~ct, no doubt, the bailee's liability is not tortious but
contractual, but if the bailor's claim rests upon a breach by the bailee of one of
the baile.e's. common law. duties, then is not his liability as much attributable to the
law of tort as is the claim of a visitor against the occupier of premises under the
Occupier's Liabinty Act. In practice, the [Link] against acceptance of
Winfield's view is the tendency of the legislature to lay down rules by reference to
the contract/tort distinction and no other.. The courts are forced to· accommodate
bailment to this distinction or render the legislation inoperative.

ACTIVITY: Questions for discussion

L Distinguish between compensation and damages in

relation to tort and equitable liability.
2. A fiduciary relationship in tort has consequences
that may lead to equitable compensation: Discuss
in200words

TOPIC 5: TORT AND CRIME DISTINGUISHED

Crime and tort ov~rlap. Many are also crimes, sometimes with the same names
with similar elements .(for example, assault and battery) and sometimes a civil
action in tort is deduced from the existence of a statute creating a criminal
offence. The more serious, "traditionaln criminal offences are likely to amount to

16
torts provided there is a victim who has suffered damage but the scope of tort is
wider: it is broadly true to say that causing physical damage by negligence is
always tortious, but it is criminal only in certain circumstances or conditions.

There is no real difficulty in distinguishing criminal prosecutions from procedures.

Generally, criminal proceedings are brought by "the state" or some authorized
body and although a private prosecution is ·still possible, the object of the
proceedings in any case is the imposition. of some sanction in the nature of
punishment, for example imprisonment or a pecuniary fine, even though the
sanction imposed may have reformative rather than a strictly punitive purpose.
Nevertheless, there are functional overlaps between the two categories. At least
sqme of tort law, like crime, has the purpose of deterrence and in a very limited
class of cases tort imposes overt punishment upon defendants in the shape of
exemplary damages. On the other side, criminal proceedings may lead to
compensation of the victim without a separate civil action, for since 1972 the
criminal courts have had power to order an offender to pay compensation to his
victim. Indeed, "power" is a slightly misleading expression, for the court is now
required to give reasons, on passing sentence, if it does not make a
compensation order. A magistrates' courts is not to .order compensation in
excess of £5,000 and losses resulting from road accidents are generally
excluded but the. compensation which may be. awarded may. include a sum for
bereavement or anxiety and distress. A compensation order should only be
made wher~ the convicted person's responsibility is clear but civil liability is not a
precondition, so that an order might be made where, for example, there was no
civil liability for breach of statutory duty. · This summary procedure is obviously
unsuitable for cases where there are complex questions of. quantification of the
loss and a civil action may offer the claimant other advantages, but in minor
matters a compensation order is obviously a much more sensible course than
requiring the victim to take separate civil [Link]. In this aspect the
distinction between crime and tort has become more blurred, though since tort
originated in trespass, which to our eyes was in medieval times quasi.,.qiminal,
tort may only be returning to 1ts roots. Furthermore, the compensatory sums
awarded under these. provisions are, until the. court specifie.s their exact amount,
quite uncertain and are therefore just as "un liquidated" as are damages in tort.
But there is one. peculiarity which marks them off from damages in tort. In every
case they are obtainable only as a result of a process the primary purpose of
which, even if is. initiated, is the .imposition of punishment, or something in the
nature of punishment. In crime, the award of compensation is ancillary to the
criminal process: in tort it is normally its very object... It should also be borne in
mind that criminal proceedings may act in an auxiliary role to a civil case. For
example, a prosecution in respect of a traffic accident is likely to take place
before the trial or settlement of a civil action arising from it and a convention may
be used as evidence of negligence in the civil action.

17
 >!,i,;'d;,i,{;:,i@§lff11TWW , d..h-i

ACTIVITY 5: Questions for discussion

l. Bailment may be tortuous if contractual. Discuss with

illustration.
2. An employee of a bailor has liability for the safety on
ttie goods in transit although he has no contractual
reliable with the bailee. Discuss.

Topic 6: LAW OF OBLIGATIONS

At this stage we may, perhaps, claim to have given some reason why a module
. on the law of tort need not concern itself with restitution, crime or breach of trust
and to have gone a little· way towards distinguishing tortuous from contractual
liability. As to the last, we have seen that the boundaries between the two types
of liability are by no means easy to state (nor are they immutable) and that there
are plentiful opportunities for both fonns of liability to co-exist on one and the
same set of fats. The claimant in such a case cannot recover damages twice
over under different heads of legal liability. Would it not, therefore, be
advantageous to bring tortuous and contractual liability together in one book
under some such titles ~~ (The Law of Obligations? There is a great deal to be
said for this and it will be essential where one aims at a study of a particular
factual are~ of legal liability such as product liability or "professional negligence."
However, the practicality of the exercise depends on the level of detail required.
A general book on the law of obligations ought to include the whole of the law of
contract and torts, the law of restitution and, even if it did not include the whole
law of trusts; should certainly contain a good deal of equity and risks becoming
unmanageably large. Furthermore, while there are undoubtedly points at which
our legal categories interconnect and cross and it is vital that the lawyer should
grasp the implications of this, there are also large areas where they travel alone.
The law of tort is concerned with the incidence of liability. Books on contract or
on trusts are, no doubt, concerned with the incidence of liability for loss or
damage suffered, as are those on tort, but there, liability only forms a part and
sometimes a small part their subject matter. Equally if not more important, are
such questions as the ways in which a contract may be concluded or a trust set
up, the various modes of discharge or dissolution .and the nature of property
rights these institutions may create. But the central question for the law of tort is
always that of liability and it is this which really forms the link between the various
topics covered in this module. We are not here concerned with the creation of
legal relationships or rights of property, though it may be necessary to mention
them incidentally from time to time.

18
 ACTIVITY: Questions for discussion

1. Crime and tort

(a) are the same
(b} very similar
(c) sometimes overlap
(d} always overlap

2. It is true to say that

(a) criminal offences do not involve damage
(b) a victim of an offence such as bailor may be
compensated under torties liability.
(c) Tortuous proceedings are those that are not brought by
the police
( d) Criminal negligence resulting in physical damage is
tried only under special circumstances.

19
 ···wccY""'··------

UNIT3
LA\"'J OF TORTIOUS LIABtLITY

OBJECTIVES: At the end of this unit you should be able to:

(a) Define the concept of tortuous tiability

(b) lnterprete and issues pertaining to tortous liability
(c) Distinguish the relationship between the tort system with other legal
and social institutions pursuing similar ends ·

Topic 1: FOUNDATION OF TORTIOUS LIABILITY

Winfield's definition of tortuous liability has been criticized on the ground that it is
formal, not material, and does nothing to indicate the lawfulness or otherwise of a
given act. This, it seems, Winfield admitted, for he agreed that the layman must
be told that no one but a professional lawyer can say whether or not the loss
inflicted on him by the action or inaction of a neighbour will entitle him to a
remedy by civil action against the neighbour and added: "a layman is not
remarkable for wisdom if he imagines that he can safely say that he is entitled to
sue his neighbour for tort or for breach of contract, or for any conceivable claim
without consulting a professional lawyer first."

Winfield did devote several pages of earlier editions of his work to discussion of a
familiar controversy concerning the foundation of tortuous liability which has
some bearing on the problem of a material definition. Salmond had asked "Does
the law of torts consist of a fundamental general principle that it is wrongful to
cause harm to other people in the absence of some specific ground of
justification or excuse, or does it consist of some specific rules prohibiting certain
kinds of harmful activity, and leaving all the residue outside the sphere of legal
responsibility?" and had chosen the second alternative. From the point of view of
the· practical lawyer concerned with the law at a particular moment there can be
no doubt that the second view is the correct one: for example, a recording
company was held to have no civil action in respect of "boot-legging" of its artists'
performances where it was unable to prove any of the economic torts or the
distinct tort of breach of statutory duty, even though the defendants' conduct was
criminal and no justification for it could be offered. · Despite occasional judicial
canvassing of the idea, English law has not adopted what in the United States is
known as the "prima facie tort theory" whereby "the intentional infliction of
temporal damages is a cause of action, which, as a matter of substantive law,
whatever may be the form of the pleading, requires a justification if the defendant
is to escape." Nevertheless, it should be noted that we have for a good many
years had something very close to a generalized principle of liability in situations
where the defendant's purpose is the infliction of physical harm on the claimant,
and despite the caution which characterizes the courts' attitude to the duty of

20
care in negligence it wi11 be unusual case in which the defendant is not liable
where his act has [Link] foreseeable physical damage to the claimant or his.
property.

Winfield conceded the correctness of the "narrow" view as a practical, day to day
matter, but he contended that from a broader outlook there was validity in the
theory of a fundamental general principle of liability, for if we take the view, as we
must, that the law of [Link] has grown for centuriest and is still growingt then some
such principle seems to be at the back of it. It is the difference between treating
a tree as inanimate far the practical purposes to the moment (far example far the
purpose of avoiding collision with it, it is as lifeless as a block of marble) and
realizing that it is animate because we know that it has grown and is stilt growing.
The caution and slowness which usually mark the creation of new rules by the
judges tend ta mask the fact that they have been created for they have often
come into existence only by a series of analogical extensions spread over a long
period of time. Ta vary the metaphor. the process has resembled the sluggish
movement of the glacier rather than the catastrophic charge of the avalanche.
But when once a new tort has come into being, it might fairly seem to have done
so, if the whole history of its development is taken into account, in virtue of the
principle that unjustifiable harm is tortuous.

ACTIVITY: Questions for discussion

1. Outline some of the weaknesses of Winfield's

definition of tortuous liability

Where the courts hold that the harm is justifiable, there is, of course, no tort. And
they may hold that it is justifiable for any one or more of several reasons. The
claimant may be asking them to do what they think Parliament is more fitted to
do; or he may be alleging a particular tort. without giving proof of some essential
requisite of it; or he may be taking an exaggerated view of what is necessary to
his own comfort or prosperity; out of gear other parts of the law. But, subject to
these restrictions and looking at the law of torts in the whale of its development,
Winfield still inclined to the first theory.

However, since the supporters of the second view do not deny that the law of tort
is capable of development, or even that new heads of liability can come into
existence, and since the supporters of the first view· admit that no action will lie if
the conduct which caused the harm was justifiable, the difference between them
is perhaps less than is sometimes supposed. Summing up his investigation into
the controversy, Professor Glanville Williams said this "The first school has
shown that the rules of liability are very wide. The second school has shown that
some rules of absence of liability are also very wide. Neither school has shown

21
 '\' --,< it1r:Co>if))j};;'i§dili/ii;~B7f'jffflf TI''<&:w

that there is any general rule, whether ot liability or of non-liability, to cover novel
cases that have not yet [Link] the attention of the courts_ In a case of first
impression - that is, a case that falls under no established rule or that falls
equally under two conflicting rules - there is no ultimate principle directing. the
court to find for one part or the other. Why should we not settle the argument by
saying simply that there are same general rules creating liability and some
equally general rules exempting from liability, Between the two is a stretch of
disputed territory, with the courts as an unbiased boundary commission. lf, in an
unprovided case, the decision passes for the claimant, it will be not because of a
general theory of liability but because the court feels that here is a case in which
existing principles of liability may properly be extended."

ACTIVITY 1: Question for discussion

1. What are the two views of tortuous

Liability? Raise and discuss the arguments to
support each view.

Topic 2: TORT AND OTHER SOURCES OF COMPENSATION

As will be seen, much of the_ law of tort in practice. is concerned with the problem
of accidental injury to. the person or damage to property, and the general
approach of the. law to these problems rests. an two broad principles_ [Link] are
subject to a very large number of exceptions and qualifications but by and large it
is the case first that the victim of accidental injury or damage is entitled ta redress
through the law of tort, if, and only if, his loss was caused by the fault of the
defendant or those for whose fault the defendant must answer. and secondly that
the redress due from the defendant whose liability is established should be "full"
or should. in other words. be as nearly equivalent as money can be to the
claimant's loss. Nevertheless, even in those accidents which can be attributed to
another's fault the role played by the law of tort should not be exaggerated. A
century or so ago the law of ·tort was probably the primary .vehicle of
compensation, but ·poverty. ignorance or economic pressure deprived many
injured persons of access to the law and threw them back on the Poor law,
charity or the assistance of a trade union or friendly society. In more recent
times the development of insurance and social security have tended to relegate
tort law to a more secondary role. We must,. therefore. turn to look at some of
these other sources of compensation and their relationship with the law of tort
and in doing so consider further some of the assumptions which underpin the tort
system.

ACTIVITY: Questions for discussion

1. Discuss how the tortuous liability applies

in the case of accidental injury.

22
Topic 3: DAMAGE OF PROPERTY
There is little i.n the. way of state [Link] for loss or damage to property, which
obviously occupies a much lower position of priority than personal injury. Private
insurance is, however, of very great significance in relation to property damage.
Insurance takes two basic forms, "loss" or "first party'' insurance and "liability" or
"third party'' insurance. Under the first the owner of property has cover against
loss or damage to that property from the risks described in the policy, such as
fire, flood and theft, whether or not the loss occurs through the fault of another
person. Under the second, the assured himself is covered against legal liability
which he may incur to a third party and the establishment of such liability by the
third party, not merely loss suffered by the third party, is an essential prerequisite
to a claim on the [Link]. A good example of a policy combining. both types. of
cover is a motor "comprehensive" policy/ which will (a) cover the assured
against legal. liability ta other road users and passengers and (b) entitle the
assured to claim from his insurer the cost of repairs should his vehicle be
damaged or the value of the vehicle if it [Link] a "write off."

Loss insurance if of very great significance in relation to damage to property and

it is safe to assume that very much more is paid out every year on property loss
policies than is recovered in tort actions in such cases. The fundamental stance
of the law on loss insurance is that it is irrelevant to tort liability. If D damages
C's property and this is fully covered by an insurance policy, that in no way
preludes C suing D for the cast of repairing the property. Indeed,. even if C has
collected on his insurance that would not provide D with a defence. In fact, it is
inconceivable that C would sue because, property loss policies generally being
contracts of indemnity, he would then have to reimburse the insurer with the
damages recovered. A mare Ukel.y outcome is that the insurer will exercise his
right to be subrogated to C's rights against D and sue D (in reality probably D's
liability insurers) in C's name. The principle of subrogation, therefore. means that
the wrongdoer ends up having to save harmless someone who has already taken
a premium for doing the same far the claimant Nevertheles.s, the attitude of the
courts is not entirely consistent. No one has yet gone so far as to hold that the
fact that the claimant is insured is in itself enough to defeat his claim but the
presence (or likely presence) of loss insurance has sometimes been used in
combination with other factors to reach that conclusion. We may note, on the
other side of the equation, that the fact that D has ( or is likely to have) too, has
sometimes been a strong influence in favour of liability.

ACTIVITY: Questions for discussion

1. What are two basic forms of insurance

and what is their significance with regard
to property damage?

23
The opportunities for an effective exercise of the insurer's rights of subrogation
probably vary considerably from one type of case to another. ln marine cases
the right is probably common!y exercised because the size of the individual claim
makes it worthwhile to do so; in home and contents insurance. subrogation is
probably almost non-existent since if whom it can not be exercised) or that of
persons, like burglars. who wilt be worth pursuing.. ln the case of road accidents,
repairing or replacing vehicles probably represents their largest single cost. For
many years nearly all motor insurers operated a "knock for knock" agreement. so
that if there was a collision between car A, comprehensively insured by Company
X, and car a inStJred by Company Y,. and the accident was caused by the fault of
car A and led to damage to both vehicles, each insurer would bear its own loss in
respect of the vehicle it insured and would not pursue subrogation rights against
the other in that other's capacity as liability insurer. There has been no such
general agreement since 1994,. though that does not mean that subrogation
rights will be regularly pursued. However, one should not underestimate the
incidence of property-related claims. as witness the. on-going litigation about
"credit hiren for fault-free drivers involved in accidents.

It can be argued that to allow a tort claim in respect of property damage when
loss insurance is widely held or easily available is wasteful and that this. is.
compounded by subrogation litigation, which only shifts money would require a
pretty major change in our intuitive ideas of corrective justice to take away P:s
property and there would still remain the problem of uninsured losses, whether
by lolal absence of cover, inadequate cover or "excessn thresholds. lf, as is·
likely, the subrogation system is of limited application in smaller cases, it may be
thought that the continued operation of tort law in large claims is not a serious
sociat problem.

Litigation over pure financial toss caused by negligence is certainly less frequent
than over damage to property. if only [Link] the law puts serious obstacles in
the claimant's way. However, when it does occur it generally involves very large
sums of moneyt sometimes far beyond the capacity of the liability insurance
market to bear.

24
 ACTIVITY 2: Questions for discussic:m

1. State how the law of tort has changed in relation to accidental injury.
2. The principles of the general approach to compensation state that:-

(a) There must be accidental injury

(b) There must be damage to property
(c) The claimant must not be thrown back on the poor law
(d) None of the above.

3. Why is insurance significant in relation to damage to property?

4. When can an insurer exercise his rights of subrogation?

Topic 4: PERSONAL INJURIES AND DEATH

When the Pearson [Link] rewrted in 1978 it stated that every year in the
United Kingdom perhaps 20,000 people died as result of injury and close to three
million were sufficiently [Link] injured to lose [Link] or more days work- The
vast majority of those injuries were due to accident and, while there has certainly
been a sharp fall in the incidence of some types of death and serious. injury
accidents and perhaps some fall overall, the overall position still represents a
huge social cost At price.s_ prevailing in 1977 about 827 [Link] pounds per
annum was paid in various forms of compensation for these injuries, a sum of
over 3 billion pounds at today's. values~ Of this rather more than half came from
the social security system, with the balance and other, predominantly private
sources such as occup_ational sick pay and private. insurance~ Overall therefore.
the tort system accounted for no more than a quarter of all compensation paid,
but the relationship would be rather different if one examined particular
categories of accidents. In the field of motor accidents, tort payments
considerably exceeded social security payments though the position was
reversed with regard to work and other accidents. Since the Pearson Report
there has been a major change in the relationship between tort and social
security. Under a scheme introduced in 1990 the defendant has to reimburse the
social security authorities for benefits paid to the victim of the accident during the
first five years (or until settlement or judgment if earlier). In effect, therefore, the
cost of these recovered benefits is borne by the tort system rather than by the
public purse. As a result of changes made in 1997 the amount recoverable from
the defendants in this way has risen but it is still likely ta be the case that tort is
the "junior partner." The ratio of tort to social security is not, of course, reflected
in the proportion of beneficiaries of each system. The. great majority of accident
victims who suffer loss of a significant duration may expect to receive some sort
of social security benefit but the proportion of tho.s.e who recover tort damages in
1978 was estimated at only about 6.5 per cent though with considerable

25
 ,}C,'-'{'N'ifh~'

variations from one class of accident to another. A later estimate was 12 per
cent The figure has. probably risen no.w becayse of greater clc;1ims
consciousness, but it will still be only a minority of injured persons. In a large
number of cas.e_s of minor injury the. victim will not think it worth his_ while. to
pursue a tort claim, in many serious cases he will be unable to prove the breach
of legal duty neces_sary to_ [Link] his claim against the defendanL

The reader should also remember that in dealing with personal injuries the cost
of provision of medical services., though not "[Link].» cannot be left out
of account. ft was estimated in 1977 that the cost attributable for the National
Health Service and the personal social [Link]. to accidental death, injury and
industrial disease was nearly 40 percent more than the social security payments
made in respect of such [Link].s~. and employers.' medical. services added a further
considerable sum to this. Subrogation or reimbursement of health care providers
is found in a number of other [Link] systems and the Law [Link] has floated
the idea of a duty to reimburse the National Health Service for care provided to
tort victims. A "guesstimate" is that this. might impose a cost af ·120 million
pounds a year on the tort system. There is at present a limited right of recourse
in road accident cases.

ACTIVITY 3: Questions for discussion

1. In what ways has the Pearson Commission Report

of 1978 changed the relationship between tort and
social security?

2. Why do you think the cost of medical services

should not be left out of account?

Topic 5: PRIVATE INSURANCE, OCCUPATIONAL PENSIONS, ETC

Three main types af insurance give [Link] death or injury:
life assurance, personal accident insurance and permanent health insurance.
The first is without. doubt the [Link] imp_ortant [Link] accident and permanent
health insurance are a good deal less common, the Pearson Commission's
personal injury survey finding that such caver was. held by about 1.0 per cent of
the persons involved in the survey and contributed about 50 million pounds per
annum to [Link] co.mp_ens.ation. Mare sjgnificant are employer's occupational
sick pay schemes. In fact, in 1983 s1ck pay from employers replaced social
security payments as the method of short-term income replacemenl Howevert
many employer's sick pay scheme go well beyond this statutory minimum,
providing alt lost income for a maximum period which may be related to length of
service but which rarely [Link] six months~ ln cases of death or long-terrn

26
injury leading to premature retirement a payment may be made under an
occupational pension scheme.

The chance of receipt of any one or more of above benefits is heavily influenced
by the social. cJass. of the victim. and the nature of his-emptoyment) but it will
readily be appreciated that many accident victims or their dependants stand to
get very large sums from such s.ources_ and it may be asked to what extent such
receipts are taken into account in assessing tort damages for loss of earnings .
The question is [Link] and. wilJ be consjdered in more detail laterr but. the broad
answer is that the courts will ignore all charitable and comparable payments. all
proceeds of private. insurance. and all occupational pension scheme payments
but will make a deduction in respect of sick pay. Quite apart, therefore, from
social security benefits,. there. is. a strong possibility that some accident victims
. who are successful in a tort claim will receive considerably more than they have
lost in income.

ACTIVITY 4: Question for discussion

I_ How does the Pearson Commission Report influence

proceedings in compensation for personal injuries
and death?

SOCIAL SECURITY PAYMENT

In the first place we have a difficulty of definition. The. Criminal Injuries
Compensation Scheme, for example, is a major provider of state assistance to· a
group of victims. of misfortunate, [Link] it has not, since its inception. be.~n witn,in the
legal framework of benefits nor has it been· administered by the Department of
Social Security._ Again,. the [Link] funded National Health Service makes an
enormous contribution to the treatment and rehabilitation of accident victims, but
would not generally be though of as a social security benefit The term is
generally taken to refer to those payments each falling within the Social Security
( Contributions and Benefits) Act 1992.. Though it has been very much reduced in
importance, we still have to draw a distinction between industrial and non-
industrial injuries.

(i) Non-Industrial Injuries

Some benefits (for example, income support and housing benefit) are simply
based on the fact that the recipient's means are below bare subsistence level
and they have no connection with. inju.r.y.. th.oµgh an accident victim. may receive
them if the conditions are satisfied. Otherwise, cases of injury falling outside the
Industrial Injuries Scheme. [Link] dealt with in the same way as sickness and the
primary short-term benefit is in fact now paid by employers in the form of
"statutory sick pay." An employee unfit for work may claim from his employer a
sum of up to considerabl.e 62..60 pounds per week (depending on normal rate of

27
 ,');,';i,;;;f!!,?J'r

pay) for up to 28 weeks. Employers could formerly recoup the greater part of
statutory sick pay payments. by [Link] them. fro.m natiQDat insurance.
contrlbutions due to the Inland Revenue, but this is no longer so. When the
statutory sick pay [Link] has. been exha.1,.1,sted it is replaced by incapacity
benefit supplemented for adult and minor dependants. This is payable only to
persons with a sufficjent record of national [Link] contributions, but there. is a
similar non-contributory severe. disablement allowance. at a [Link] rate ..

In addition, a claimant who needs constant care or assistance or is unable to

walk may [Link] disabmty living_ allowanceJ.

(ii) Industrial injuries

The Workmen's Compensation Act 1897 into English law the first important type
of accident compensation not based on the law of tort. Under that Act, workers
injured in various types of employment could recover [Link] far personal
injury "arising out of and in the course of employment." Unlike the modem
system of industrial injury [Link]~ however,. this. compensation was payable by
the employer and was recoverable by action in the courts. With the
implementation of the. Beveridge Report the Workmen's. Compensation Scheme
was abolished and replaced by a system of benefits payable by the state for such
accidents and. dis.eases_ The. Industrial Injuries Scheme. now covers industrial
injuries (including certain prescribed diseases) and provides for payment of
"disablement benefit" to the injured worker. The basic condition of award is that
the injury was caused by accident "arising out of and in the course of
employment" Injuries with shart~term effects are excluded by the rule that
disablement benefit is not payable for the first 15 weeks after the accident. It is
most important to note that disablement benefit is not necessarily looked upon as
a method of replacement of lost earnings but is based upon an objective
assessment of disablement,. fixed an a percentage basis either by regulations or
by a medical board. For example, the regulations provide that loss of sight of
one-eye amounts to a 30 percent disablement so that the victim receives
proportionate benefit enough though his earnings may not be affected at all.
Formerly, disablement of less than 20 per cent attracted a lamp sum gratuity but
many of these cases were taken out of the system in 1986, thereby making tort
claims more important in "minor" cases. Disablement benefit takes the form of a
pension. The current maximum payment is 112. 90 pounds per week but
additional sums are payable where there is a need for constant attendance.

Payments in respect of industrial injuries are higher than in the case of other
accidents, there is no contribution requirement (though the injury must be work.-
related) and in some cases payments may be made even though there is no
interruption of employment and [Link] are unaffected.. The "industrial
preference" therefore still exists, though now only in respect of longer-term cases
and at a lower rate than formerly.

28
 The question of offsetting social security payments against damages where a tort
claim succeeds. is_ governeqJ:~y statui~ and i.s. deaJt with later. BrieJly, in the. cas~t
of personal injuries social security payments paid in the initial five-year period
after the accjdent are [Link] by the_ defendant, who musl [Link] the
Secretary of State. Since, however, there is no deduction in respect of the period
after the first five years there. i.s still the prospect of [Link] "double recovery''
in serious case.s since the. prospective value of benefits. may be [Link].

ACTIVITY 5: Questions for discussion

l. Define the term "social security payments"

2. Compare and contrast non-industrial and
industrial injuries.

Topic 6: THE "FAULT PRINCIPLE"

Enough has. [Link] s_aid to shoyv. tnat the. overlap. between the. law oi tor.t and
private and public insurance is striking. Though overall the law of tort is by no
· means the mostimp_ortant vehicle for accident comp.ens_ation.. an accjdent victim
who can make out a tort claim stands to recover very substantially more than one
who cannot partly [Link] of the rules. [Link] deductibility of other [Link]
payment from tort damages and partly because tort damages, unlike social
security payments;. are subject to no financial limits and. take into account matters
like pain and suffering, loss of amenity, loss of promotion prospects and extra
expenses incurred as a result of the injury.. As. we have seen,. the claimant in a
tort action must generally show that his injuries were caused by the defendant's
fault and until [Link] recently it was taken as almost axiomatic that
payment of much higher compensation to the victims of fault was justified, but the
development of insurance.,. particularly in the form of the social security,. has led
many commentators to take a different view.

Since the law of tort is a system of establishing liability it is obvious that it could
never have compensated all victims of misfortune~ At the very least there must
be some causal link between an activity of the defendant and the reason why the
law should have chosen fault as. the determinant of this.. [Link]. What
justification, then, can be. advanced for the. adoption of the fault princjple?

a
The principle that person should be called upon to pay for damage caused by
his fault may be tho_ught to. have_ an. affinity with tbe criminal law (wbicJJ_ the law of
tort as a whole certainly did have much earlier in its history) in the sense that one
of its purposes is. deterrence~ the prevention. of harmful conduct. lt is certainly
true that at least some parts of the law dealing with premeditated-conduct do help
serve this purpose as well as that of decicJjng. whether or not redress for damage
already suffered should be orderect. newspaper editors, for example, take steps

29
 to avoid publication of defamatory matter, and trade union officials have
recognized. the effici~ncy of the. "economy" torts a$ an [Link] for controlling
conduct by demanding and receiving, statutory exemption from some of them so
as to [Link] for tbem$elv_e$. gre~Y~r fre~9m qf _indlJ~trial a9iiPrt It i$ a.. re9u,rring_
complainant that the partial withdrawal of traditional exemption since 1980 has
unduly altered the balance_ between empJoyers and. unions.. lt is however much
more doubtful how far there is any effective deterrent force in those parts of the
law relating to accklental injury, where. UabiJizy is_ based. upon negligence.. There
are a number of reasons for this. First, a generalized instruction to people to
take care,. which is. all that the. law gives., is of little practical use in guiding. their
behaviour in a given situation. Certain driving practices, for example driving at
60 mph down a crowde_d [Link]. street, [Link] be recognized as negligent by
ordinary people without any judicial assistance, but the majority of cases do not
present such clear-cut [Link].s and the number of variable factors is so great that
one case is hardly even of persuasive value in another. The force of this
criticism probably [Link]. from one. type of accident to another. It is particularly
strong in the case of road accident, where the activity is, in the case of an
experienced driv:er,. larg~Jy instinctive_ and where. a momentary lapse. of attention
can lead to catastrophic results with few realistic possibilities of taking other
[Link] to minimize Qr qVQiq t~ ri$l<, Wh~re, hQwevet:, t~ ~®iden.t clfi$~~
a
• from an alleged defect in system ot'w,:i"rk or the organisation of a "business, it is
possible that a. tort judgment may pJay a_ part in exposing the. risk and leading
others to take measures to prevent recurrence, whether voluntarily or at the
insistence of their insurers.

ACTIVITY: Question for discussion

1. Give practical example of cases in which the fault principal has been
applied.

The second reason why the deterrence argument is of limited validity relates to
the sources from which damages are in fact paid. If it were the case that tort
damages were paid out of the torteasor's · own resources it could hardly be
denied that the threat of legal liability would deter, but in practice damages are,
far more often than not, paid by an insurer rather than by the tortfeasor himself,
which undoubtedly blunts the deterrent edge. Liability insurance is now actually
compulsory so far as concerns road accidents affecting third parties and most
work accidents. and_ to. meet the, prot>.lem Q'f the. uriins~eQ. driver. there. is, an
agreement under which the Motor Insurers' Bureau (i.e. the road traffic insurers
acting [Link]) satisfies_ cJaims, Of CQ"'.rs.e,. the. presence. of ins_urance does
not necessarily aJto_ge.ther take away the deterrent effect, for the. premium may be

30
 related not only to the general risk presented by the activity or the actor (the
nature -of the employer's traqe_ or the age. of the driver) but the. record of the
particular insured. However, tr.s- setting of insurance premiums may depend on
many factors anq while, say, motor premiums_ are quite. strongly experience.d-
related, this appears to be less so in relation to employer's liability. Where the
defendant is_ in the b.U,~ne$.$. of s_upplying. gqods. or [Link]._s_ to the public, the. co.s.t
of obtaining insurance cover (or of payin_g damages if he carries his own risk} will
be reflected in the pric_e_ charged to the public. or in a reduced profit margin so
that those who actually pay it are either consumers or the shareholders or both.
Nevertheless. the overall cost of the harmful conduct is_ still (in theory) reduced
because if others can provide similar goods and services without this additional
cost they will gain an increa$~d share of the [Link]

_Deterrence is not only produced of course by the threat of direct imposition of a

financial penalty. It is_ perfectly possible that the person may be. induced to take
greater care by the harm to his reputation which may be caused by a successful
tort suit against him. Again. this effect wQUld. p_roba.bly only be produced in
certain fields of liability such as professional negligence, injuries caused by
defective products. and work injuries. While experience shows that a powerful
force of public opinion can be mobilized against a drug company which was
· alleged to have. prod.u.c:;.ed. a drug whi.c.h had.. injure_d. children. iti.s V<3fY tinHl<~ly [Link].
people would take much interest in a road accident caused by one of its delivery
vans. In any event,_ a. large corporate_ [Link] whicb has. the. wherewithal is
capable of avoiding much adverse publicity by an out-of-court settlement and the
speed with whictt substantial compensation ha~ Q,~en Qffered.., in the_ wake of
some mass disasters, suggests that in practice the victim's chance of recovery
are in direct proportion to the. [Link]..le. of the accident and hence. the amQu_nt of
public attention it r~[Link].~.

ACTIVITY: Questions for discussion

1. What are the strengths and weaknesses of the Deterrence argument?

We may conclude, therefore, that the prospect of tort liability will have some
influence on conduct but that this influence is variable and limited-. Even if it had
a greater deterrent effect it would not necessarily justify a fault-based system, for
strict liability would, presuma_t:,ly, hav~ jl;lst as gre~t ~l".l eff~ct Prof~sSQ,r ~ry
Schwartz, after a survey of the empirical -evidence in the United States,
concluded. that "the. infQr:tnaUon ~lJ99~.~t~ tl:la\ tl:l~ ~tfQl'.l9. f~rm of q_et_~rre.n®<
argument is in error. Yet it provides support for that argument in its moderate
form: sector-by-sectqr tprt law prq_vid_es ~QfOJ~thing_ s,igrifi~nt by w~y ot
deterrence~ Our ambivalencE:! on these ~[Link]~~ in jyc;lj_Qi~I q~9i~[Link]~ he~rd_.

31
 w,;{;,~;;yr,Y,;tw=

Thus, Staugton L J. said in 1994 that: "one advantage that is claimed for
imposing. a duty of care. is. thatit .[Link] not. to be negligent. I very
much doubt if that is the case. The great expansion of tortuous liability over the
last hundred and. fifty [Link]. has. had the remarkabl.e feature. that the direct
financial consequences almost invariably fall on someone whose purse is
assumed to be [Link], such as an insurance company or a [Link] commercial
concern or an organ of central or local government, yet in the same case Sir
Thomas Bingham M.. R. said. that he could. not accept as a general proposition,
that the imposition of a duty of care makes no contribution to the maintenance of
high standards.. The. common belief that the imposition of such a duty may lead
to overkill" is not easily reconciled with the suggestion that it has no. effect"

The other argument in favour of a tort system based on fault (or at least of a tort
system, as opposed ta other mechanisms. of compensation) is still more difficult
to assess but cannot be dismissed out of hand on that basis. It is that the notion
of responsibility is, a powerful,. intuitive factor in [Link] attitude ta accidents and
that there is a deep-seated idea that those who have caused damage to other
should pay: "corrective. justice~ requires_ that those. who. have. caused. harm. to
others should correct what they have done and in practice in most cases the
payment of money is the. only practical correction available. The argument is not
necessarily rebutted by the fact that the money may come from an insurer,
indeed, since few awards of damages. would otherwise be paid, it might be
regarded as buttressing it. Of course there is no logical reason why such a duty
to correct harm should arise only where the. defendant is at fault (though it seems
inevitable that there should be a minimum requirement that he has caused the
harm): one might for example, say· that it arose where the defendant in pursuit
of his own purposes, imposed on exceptional or "non reciprocal" risk upon the
claimant. However, even if it is only the product of a long-standing. system
dominated by fault, one may confidently say that the call for the duty to correct
harm is stronger where. there is fault lt i.s now an economic commonplace that
an activity should bear its own costs, rather than "externalize" them so that they·
fall on others. Not many years ago the watchword was "lass distribution" but now
there is a good deal more interest in allocating ultimate responsibility to those
who generate the resulting costs, as witness the schemes for the recoupment
from tortfeasors of social security benefits and road accident treatment costs and
proposals for the extension of these schemes ta accident treatment in general.
This sort of reallocation inevitably involves costs, but these particular
arrangements seem to be comparatively cheap.

ACTIVllY: Questions for discussion

1. The prospect [Link] liability will have some influence on conduct but
this Influence is variable and limited. Discuss.

32
 Linked to this (and here fault clearly has a necessary role to p1ay) is the idea that
people should answer for theit cJamaging aqtipris.. Fo~ example.,. atj'i(~ntµrE:!. is. that
if we move away from a liability system some means wm · have to be found of
ensuring that medical staffs. are.. [Link]µnta.,ble fqr qlam~wqrtr1y_ mj~t<:!Ke~, Th~.r~.
may, however, be more effective and effident means of achieving ·such aims ..
The most obvious. is the. criminal law.. The. criminal. law's response to negligently
caused harm is more partial than that of the civil law: there are fairly
comprehensive sanctions on careless conduct on the road and (as far as
employers are concerned) at work, but there are other areas of activity (medical
treatment, for exampl.e). where the. criminal law only operates if the fault is very
bad and death ensues. A surgeon who kills his patient by gross negligence
commits manslaughter; one who by the same means renders him quadriplegic
commits no offence at all. That, of course, is not the whole story, for the surgeon
is exposed to disciplinary proceedings, and since the outcome of these may be
exclusion from the profession, whereas any tort damages will be paid by the
hospital trust or insurer. [Link] off th.e motorway on to a railway track below and
cause a train wreck in which there are dozens of casualties. The first has had no
sleep the night before and knows full well that he is unfit to drive: the second
. merely commits momentary piece of inattention. As far as tort law is concerned
the outcome of both cases is the same:. the. driver {in reality his insurer) pays all
the resulting. damages in fuJL
:)

In trying to seek these justification of the fault system we have already exposed
some of its [Link].. There are, however, other, independent criticisms.

First, the tort system based upon fault is undoubtedly expensive to administer
when compared wi~ say~ social security. The. Pearson Commission estimated
that In the tort system the cost of operation was about 85 per cent of the value
compensation paid. through the syste~ whereas the corresponding figure for
social security was about 11 per cent. The very great cost of the tort system is
not entirely caused by its fault basis, however, since disputes about the medical
prognosis of the claimant and quantum of damages outnumber disputes about
liability.

We should look very briefly at how these expenses are paid. Legal aid for
personal injury cases never formed. a var, large part of net civil legal aid
expenditure because most claims which were supported succeeded and the bill
was passed to. liability insurers. However, legal aid has now been abolished
except for medical negligence cases and largely replaced by the conditional fee
system, under which the claimant's lawyers waive all or part of their fees and
disbursements if the claim fails but receive these {normally with an "uplift") if it
succeeds. In that event the defendant will pay on the basis that "costs follow the
event." An unsuccessful claimant remains liable to pay. the legal expenses of the
successful defendant,. but will normaUy take out a single premium ate insurance

33
 ''''A&·,:.:~it'U¾M,~KPWZ 'Jt'k-%

policy to cover this risk, if the claimant is successful this cost, too, will normally
be recoverabl.e. from the .d~fen<:iant. Puttjpg__ ~§jc:!~. ro~.[Link] n~gJigE;1,n~, th~. oos.t qf
the system is therefore very largely borne [Link] or legal expenses insurers,
though that d.o~~- no~ a,n~yv~r th~ qfitiqi~lll that th~ syst~rr.1 is. [Link],nt in
expending large amo_u,ot~ of mQr.t~Y in ti)~ [Link];lt;W:f~r prQQe.$.S..

Secondly, there is the problem of delay. The Pearson Commis$ion concluded

that delay was"

" ........ the most important reason for dissatisfaction with the legal system ..... .
delay is [Link]~ju~tifi.c!,Ql~. [Link] it ~rt Qft~fl ~Q,9Jc!vaJ~ pre~[Link] Qn th~. [Link]
to settle prematurely, ·and ~n be a source ·of worry and distress. Nor is it
necessarily in the. int~re_sts. of the. clefenc:tcmt The [Link] Qf d.~l.a.y iS.c als_Q linked
with the medical oonditiQn [Link].,lime,~ knQWO ~~ "@mRensf:!tiQn [Link]."

Since then there has been a major shift of personal injury cases to the country
court (where all claims_ of les.s_ t~n. &Q,.QQQ RQtJnd.~ ml.!.~t nq_w bf:! [Link]) and. the
Civil Procedure Rules of 1999 have led to a fundamental change in responsibility
for the handling_ of civil litig~tiQ1'.l frQfil ti)~ . p_~Jties. tQ the, [Link]:lS.., t?a&.ed. Qn a_o
interventionist judicial role in case of management. There is some anecdotal
evidence that this. can a_tjµ_aJty inqe~.ll~- ®~~~ by leading tQ steRs being taken
earlier and therefore sometimes unnecessarily {"front-loading") than would have
been the case in the. past However~ the.re_ is. nQt a_ great deal that. [Link].l
reform can do about delay prior to the issue of proceedings, which need not be
done for (normally) three [Link]. after the inll!fY.

Thirdly, the unpredictability of the result of cases based upon fault liability may
put claimants. under PJ~~~vre tQ ~e..t~-'~- tl'.le._ir c;!~-im~ fqr ~mQUnt$. less than they
would receive if their claim went successfully · to trial. The vast majority of
personal injury claims [Link]. settled. withQ.u.t triaJ.. ffiQ~ Qf th~m [Link].t even the
issue of a writ. It is true that of claimants who make a claim some 86 per cent
will receive some payment QtJt. thQtJQO. there. is nQ [Link] [Link] [Link]~ Qn
the point, many of those payments will be for substantially less than would be
awarded if the. matter went tQ trial. Since th~re. is always [Link] risk that.
claimant's matter will founder in whole or in part of the trial, the defendant's
insurers are in a posmQn to e_xpl.Qit th.i~ f~QtQr by [Link]. a di~unt in the_ amount
they offer in settlement. This element of risk, leading to pressure to settle, is of
course [Link] in virtl.!ally au litigation but it· is peculiarly powerful in the case of
personal injuries because a very large part of the claimant's future wealth may be
at stake. His position of inequality is exacerbated by the fact that even if he wins
at the trial on liability he may face a large bill for costs if the defendant's insurers
have made an accurately-caJcuJated. Part payment into_ court. On the other hand.
a claimant may now also make a Part settlement offer, with penal consequences
to the defendant on interest and cos_ts_ if a higher award is made at trial.. Not
surprisingly perhaps, small claims may be over-compensated: their nuisance
value may make insurers willing to_ buy off claimants. with fairly generous offers.

34
Under compensation in serious cases may also be attributed to by the practice
of assessing damages_ on a lump-s_um basis, though it is now becoming more
frequent to settle cases on an instalment payment basis.

We have already noted that the victim of mass disaster may have a valuable ally
in the form of public opinion. Such a claimant's is also now likely ta find his
claim handled by a specialist firm of solicitors (or by a co-ordinated group of
them) who are adept at using publicity and who can match the experience and
expertise in claims handling of a major insurer. Such cases are also likely to be
handled so that selected "lead claims" wm be used to determine the main issues.

ACTIVITY: Question for discussion

1. Discuss the merits and demerits of the tort system based upon the
principal of fault and the one based upon social security.

ALTERNATIVE
These criticisms do not complete the tally of objections to the present law of tort
so far as it concerns personal injury accidents, but similar problems have been
encountered in other jurisdiction and there has been a widespread debate about
the "crisis in tort law." In some jurisdictions, far from compensation being
extended, even the present has been felt to be too great a burden of society to
bear and there have been statutory restrictions on levels of damages for non-
pecuniary loss in certain types of claim which are percejved to be "in crisis."
Examples may be found in the United States in the field of medical malpractice .
and product liability (for. whk~t:t there i$_ ~triqt U~bil_ity.) an.<:;I in ~Qrn(;! Aq~tr~ll~n
jurisdictions in respect of road accidents: Things· have not reached quite such a
pitch here, partly Qe~IJ~~ Q~ tlJ~. a~.~~nqe. of [Link]~J interferenQe with ma,.rket
insurance forces perhaps partly because of a degree of judicial conservatism.
One important fa_q_Qf i~. th~ growth qf "[Link]~tiQn e:0nsciQ1J~ness:· lf it wa~ true in
1991 that "the American links adversity with recompense whereas the
Englishman or wom~n a99t1:pt~_ c!dver~Jty ~~ a,_ rQ14tJne ~rt of life." it i.!?.1~~~ so now
that every local newspapef and daytime television station carries advertisements
for personal injury la_w fm:ns. There ha~ [Link] b~en a_ ri~ in the, [Link],r Qf
claims against hospitals, which is·
unlikely to be explained by a rise in medical
error. The financial implications. qf thi~ are, a matter Qf cqntrove.r$Y b~u.s.e..
some estimates. a_s&ume, the.l c!l.l Gl~_i.ms. lqd_ge.c;t will &ucce.e.d in full and. be paid. in

35
 ~;:,~$i;'% W/i,

full immediately but there has been sufficient concern to lead to the appointment
of a committee to exc3mine the system for compensation of medical accidents.

Any reform of the law governing compensation for personal injuries might adopt
one of two basic solutions_ - a..n e_?d:~osion of strict liability (i.e. liability imposed
without proof of fault), which would 'retain the law of tort though in a different
form; and the "insurance" technique. (whether private or public,;), which would
mean ttie abolition or [Link] of the law of tort in whole or in part.

Topic 7: STRICT LIABILITY

Despite the continuing dominance of fault liability. the English Law of tort does
contain certain limited principles of strict liability with regard to personal injuries.
Some of these are of common law origin and of respectable antiquity, others
have been the creation of modern statutes and t)ave either been limited in their
practical importance or of rather haphazard application. lt is unlikely that any
consistent policy has been followed in the creation of these areas of strict liability,
though it is perhaps possible to discern behind same of them a very hazy idea of
unusual or increased risk. However, the strictness of the liability varies
considerably along a spectrum from near absolute liability ta little mare reversed
burden of proaf1 and in nearly every case, the, defendant may plead the
contributory fault of the claimant as a defence or in diminution of damages.
While there may be some, merit in a system of strict liability for unusual risks it
can hardly make much contribution ta the accident compensation problem as a
whole when common risks are left to the law of negligence. As a result of an
EEC initiative one such risk has been brought into the strict liability fold, namely
losses caused by defective products, though the liability isby nomeans absolute.
French law has always had an element of strict liability motor accidents because
of the provision in Article 1384 of the Code civil governing damage caused by a
"thing" in one's custody, but the law of July, 5 1985 goes further by allowing
victims ( other than drivers) to recover damages even though they themselves are
at fault Only if the victim's fault is inexcusable and is the sole case of the
accident is the barred. Ordinary contributory negligence remains relevant,
however, ta claims by drivers or to claims for property damage. The exclusion of
contributory negligence is very important because its retention would require the
same kind of investigation into the facts of the accident, as does the present law.
and hence lose much of the advantage of strict liability. By contrast, our
legislature on product liability retains contributory negligence. Those who believe
that tort law has a deterrent role will object to the exclusion of contributory
negligence, far logically it is necessary to give claimants as well as defendants
the incentive to avoid accidents. Another problem is that if we make the
(realistic) assumption that strict liability would apply to identified activities rather
than across the board, we end up attributing the cost of an accident to the strict
liability activity when many accidents are the product of the interaction of more
than one activity.

36
 ACTIVITY: Questions for discussion - TRUE OR FALSE

1. The English Law of tort does not define fault liability.

2. According to French law, all motor vehicle accident victims
are entitled to damages arising from motor vehicle accident
injuries.
3. Contributory negligence is admissible and used by drivers
where the cause of an accident is the excusable fault of a
passenger
4. Since strict liability requires that the cost of an accident is
applied to identified activities, it is always a fair way to
resolve claims arising from accidents.
5. In strict liability, the defendant may claim that the defendant
is actually responsible for the accident.

Topic 8: NON-TORT COMPENSATION

An alternative approach is to abandon tort ·liability and" create direct
. compensation rights. This can be done either by ad hoc compensation schemes
for particular types. of accidents or by a broader extension of social security
rights.

The Workmen's Compensation Scheme, abolished in England in 1948 (but still

existing. in various forms. in the United States and Australia) was an early form of
ad hoc no-fault compensation, though it involved adversarial litigation between
the claimant and his employer, who was able to pay the compensation. No-fauJt,
insurance-based .schemes have, however, proliferated and about half the states
in the United States operate them in· the field of road accidents, as do some
Australian states. However, while they generally_ take the form of cover bought
by the motorist which allows any person injured as a resuJt of the operation of the
vehicle to claim against the insurer, they vary greatly_ in the amount and range of
benefits and in the extent to which they limit the right to claim tort damages.
Generally, they do not cover non-pecuniary loss such as pain and suffering, but
in order to reduce the number of tort claims for this some jurisdictions impose a
minimum threshold on this loss.

In England, selective compensation from public funds is exemplified by the (now

somewhat attenuated) industrial injuries benefit. system.. But there is another
instance of such compensation, though outside the formal boundaries of the
social security system and not in respect. of accidents - the Criminal Injuries
Compensation Scheme. The original Scheme was introduced on a non-statutory
basis in 1964, paying compensation for personal injury caused by a crime of
violence broadly in line with common law damages of tort, subject to restrictions
on quantum for loss of earnjngs and deductions in respect of benefits coming to

37
the victim from other sources (for example, social security payments and
pensions). [Link] the Scheme_ was [Link] a statutory basis_ in 1988 this was
never implemented because the Government came to the view that the Scheme
was too expensive. and in 1-993. it was proposed to replace it with a "tariff'
scheme giving fixed amounts for specified injuries but making no additional
payments in respect of loss of earnings and expenses_ The implementation of
the new Scheme was declared unlawful in judicial review proceedings and the
Scheme we now have is a [Link] compromise introduced by the Criminal
Injuries Compensation Act 1995_

ACTIVITY: Question for discussion

1. What factors led to the proliferation of no-fault insurance based schemes

following the abolishment of the Workman's Compensation Scheme in 1948?

The Scheme is administered by the Criminal Injuries Compensation Authority.

Applications are considered. by claims officers and ap~als are decided by
adjudicators. Very broadly, a person is eligible for compensation if he has
sustained personal injury directly attributable to a .crime of violence or the
apprehension of an offender or the prevention of an offence. Mental trauma
constitutes personal injury, but if the victim is not physically injured he must show
the elements necessary for a claim by a secondary victim for nervous shock at
common law. Compensation for pain and suffering and loss of amenity is on the
basis of a tariff ranging from 250,000 pounds for quadriplegia or serious brain
damage to 1,000 pounds for minor injuries like a fractured rib or damage to a
tooth. Many of these. figures are broadly comparable to those who would be
awarded by a court assessing damages for personal injuries at common law but
at the upper end they are currently higher. Unlike the abortive tariff scheme
which was declared unlawful. the 1995 Scheme does provide for compensation
for loss of earnings and expenses. subject to a number of restrictions: (1) no
compensation is payable under this head in respect of the first 28 weeks' loss of
earning (2) the. net rate of earnings compensated for cannot exceed one and a
half times the gross average industrial wage and (3) almost all collateral benefits
are deductible. The cost of private medical treatment is compensable only when
both the treatment and its- cost are reasonable. Where the financial loss is an
ongoing one, the process of assessment is comparable to that for the
assessment of damages for loss of earnings at common law,. that is to say the
application of a multiplier to the net annual loss.

38
The Criminal Injuries Compensation Scheme has been subject to severe criticism
on the ground that it lacks. theoretical foundation and is mereJy an attempt to
single out yet another group of unfortunates for special treatment. While one it
could no doubt have been said that the- state has a more direct interest here than
in the case of accidental injuries because of its responsibility for maintaining law
and order, this is. hardly convincing. in an age when a vast range of activity is
subject to regulation. From a theoretical point of view the Scheme is of course
supplementary to the law ·of torts, since it is virtually inevitable that the actual
offender has committed a tort. But the number of cases of serious injury in which
the victim recovers. the substantial compensation from the offender must be very
small, so there is no analogy with, say the Motor Insurers Bureau arrangements.
where the responsibility of the minority of uninsured motorists is passed to the
insured majority. What really underpins the Scheme seems to be sympathy,
coupled perhaps with a fear that without it penal policies designed to reform
offenders may give the impression that there is no concern for the victim.
Though nearly all ad hoc, selective no-fault schemes have been created· in the
context of their application to other types of case, for example, the instances of
their application to other types of case. for example, the medical accident
scheme which operates in Sweden.

ACTIVITY: Question for discussion

1. List down the criticism labeled against the criminal injuries compensation
scheme

Much more far reaching than anything we have discussed so far is the scheme
now operating in New [Link]. The. original. of the scheme is the [Link] of the
Woodhouse Commission, which had been appointed to deal only with
compensation for work [Link] but which felt unable to limit itself to its terms of
reference and proposed an all-embracing no-fault system of compensation
financed by the state and based on the five guiding principles of community
responsibility, comprehensive entitlement, "real,, compensation (including non-
pecuniary loss),. the promotion of rehabilitation and administrative efficiency.
Most of the proposals were implemented by the Accident Compensation Act
1972. ·The Scheme was somewhat restricted in its coverage by changes in 1992
and further modified in 1998 and the law is now to be found in- the Accident
Insurance Act 1998. Claims are handled administratively with reviews and
ultimate appeals on a question of law to the Supreme Court and Court Appeal.

The scheme is financed from a number of sources: for injuries to employ or self-
employed persons a risk-related premium is paid by employers and the self-
employed; for motor accidents there is a levy on vehicles; for other cases (for
example pensioners and housewives_ injured elsewhere than on the road)

39
 ,-,:,,-iifJili

compensation is financed out of general taxation. The 1992 changes extended

the element of "experience rating" and introduced contributions from health care
providers.

The statutory definition is complex but, broadly speaking, the scheme gives cover
for personal injury by accident,. for occupational disease and for personal injury
by medical misadventure. The last concept takes two forms: medical error, such
as failure to diagnose (which is effectively the same as common law negligence)
or medical mishap {a severe adverse reaction to proper treatment likely to occur
in less than one per cent of cases). Because injury arising from an intentionat act
is "accidentar' as far as the victim is concerned, there is no need for a separate
criminal injuries compensation scheme in New Zealand. The original plan
envisaged the extension of the scheme to disease in general and to disability;
there now seems no prospect of this happening.

ACTIVITY: Question for discussion

1. Discuss the importance of compensation schemes to the tort

system

Where the compensation scheme applies the right of action in tort is abolished
(though it remains for cases outside the scheme). In the case of total incapacity
for work compensation is at the rate of 80 per cent of earnings, subject to a
statutory maximum. It is considerably more than would be payable under the
general social security scheme but such a sum will, of course. be payable to very
few claimants. The original scheme provided for fairly modest lump sum
payments for non-pecuniary loss which could not exceed 27,000 doUars (10,000
pounds) in the worst case but these were entirely abolished by the 1992 Act,
being replaced with periodical "independence allowance" in cases of disability
above_ 10 per cenL [Link].ording_ of a. Lo.w [Link],ity tQ, n®~niary los_s. is a
feature of most of the radical proposals for reform put forward in recent years. It
is no doubt true that "los.s". of. this c:IE;[Link] is.. very different from the. lass of
something having an obvious monetary value and that damages are awarded at
common law more by way of "solace for unpleasantness and has been deprived.
It is also true that it is difficult to find a basis for the assessment of some types of
non-pecuniary damage. On the other hand,. amenity are undeserving of such
solace as the payment of money can bring them. The reply of the radical
reformers is that compensation of this kind. should t;,e given to none until such
time as the basic income losses all can be. restored through the chosen
compensation system.

40
 ACTIVITY: Question for discussion

1. Outline the various approaches to the problem of personal injury

compensation

The scheme excludes mental injury not flowing from physical injury or from
sexual offences, so, since the common law survives for cases outside the
scheme, there is still negligence litigation in New Zealand on "nervous shock" for
example where the claimant suffers psychiatric trauma at seeing the negligently
inflicted death or injury of a loved one.. Furthermore, even in cases to which the
scheme applies it does not exclude the recovery of exemplary damages, which
may be awarded in New Zealand even in a case of negligence where there is
conscious risk-taking by the defendant.

The merits and demerits of the various approaches to the problem of personal
injury compensation received detailed consideration in the Report of the Royal
Commission on Civil Liability and Compensation for Personal Injury, the Pearson
Report. The commission was appointed in 1973 as a result of widespread public
concern with accident compensation generated by the thalidomide affair, in which
some 400 children in the United Kingdom were born with deformities caused by
the taking by their mothers of the drug thalidomide between 1958 and 1961. For
the purposes of this chapter the crucial and principal point of the Report is that it
did not recommend the creation of a comprehensive scheme of state
compensation on the lines of the New Zealand Accident Compensation Act. The
Report states that consideration of a comprehensive scheme was precluded by
the terms of reference, There is, however, some internal evidence in the Report
that this attitude to the terms of reference concealed some disagreement among
the members. of the Commission as to the desirability of a comprehensive state
scheme. The final chapter of the Report speaks of three schools of thought on
the ultimate objectives of compensation. One school would welcome the
extension of no-fault compensation {and, by implication, of state"-financed no-fault
compensation) to all accidents and, in the long run, to sickness. Others hoped
that there would always be· a role for tort damages because they were able to
deal more discriminatingly than social security payments with individual losses
and embodied recognition of the principle of responsibility. A third group thought
that it would be better to assess the consequences of the Commission's limited
proposals before trying to judge in which direction it would be appropriate to
move next.

tt is not, therefore, surprising that what the Report proposed was adjustments of
the compromise arrived at with the birth of the Welfare State rather than any
radical change. Perhaps the most important proposal was for a scheme for road
accidents whereby there would be at the same rate as under the lndustriaf

41
 Injuries Scheme in respect of injury and death suffered as the result of the us0 of
a motor vehicle on land to which the public has access. The right to sue in tort
would have remained.

In proposing an ad hoc arrangement for road accidents, the Commission

followed a long-standing and international tradition among reformers of accident
compensation. It justified singling out this type of accident in the following way:

UFirst, motor vehicle injuries occur on a scale not matched by any other
category of accidental injury within our terms of reference, except work
injuries {which are already covered by a no►fault scheme). Secondly -
and here they are to be distinguished from work injuries ...,. they are not
confined to any particular group of victims. Thirdly, they are particularly
likely to be serious, so that they highlight the difficulties of compensating
for prolonged incapacity. Fourthly, road transport itself is an essential part
of everyday life, of fundamental importance to the economy as a whole
and to mobility of individuals.

The possibility of the creation of limited state-financed no-fault compensation

schemes to cover other types of accident within its terms of reference was
• considered by the Commission, but in nearly all cases there were substantial
practical objections. In the case of accidents arising from the provision of
services, for example, there would be enormous difficulties in deciding the scope
of the scheme and in the collection of finance if any attempt were to be made at
hypothecation, rather than finance out of [Link] revenue; in other cases, whHe it
might be possible to identify those whom the burden of finance should fall, the
cost of administration of the system would be out of all proportion to the number
of cases involved. However, the road accident proposals were subject to fierce
attack for their failure to give full recognition to the savings that could be made
from abolition of the tort action and their tendency to create a further ad hoc
privileged class in an already complicated system. Indeed, one could argue that
the proposals would build on an already existing privilege since however
inadequate the tort system may be as a method of ensuring compensation, it
[Link] it provides it for a greater proportion of victims in road accident cases
than in others. Nothing has happened on the road accident front, though the
prevalence of strict tort liability in that area in Europe may produce pressure of a
move in that direction.

ACTIVITY: Question for discussion

1. Motor vehicle injuries occur on a scale not matched by any

other category of accidental injury. Justify.

42
Reformers have concentrated upon the relative equity between "fault" and "non
fault" victims and have advocated moderate automatic benefits to which the
abolition of the costs (including transfer costs) of the tort reduction in
compensation for non-pecuniary loss to those who can at present prove fault and
for pecuniary loss in the case of high income earners, but the reformers would
respond that as to the first income support should occupy a higher place in the
scale of priorities and to the second this group can protect themselves by
insurance. A decent debate over medical negligence and some mass-disaster
cases suggests that expectation of the "proper" level of compensation are at a
level well beyond that which could be financed without additional taxation_ This
may be irrational and retributive, but it cannot be ignored if any reform is to be
effected. Even if this difficulty can be got over, however, there remains the
problem of the scope of no-fault compensation. The Pearson Commission's
reasons for singling out the victims of road accidents for preferential treatment
would by no means commend universal assent and the savings stemming from
the abolition of tort liability will not go very far if spread across the whole
spectrum of accident compensation. A comparatively high proportion of road
accident victims cover tort damages so that there would be a substantial sum
_available to finance a road scheme. However, road accidents comprise less than
20 per cent of all accidents and the only other areas in which tort damages play a
major role is that of accidents at work and medical injuries, in which the
proportion of tort recoveries is lower. The result is that a comprehensive
accident scheme would have to fund compensation for about half of its claimants
without any significant saving from the abolition of tort liability. Indeed, it is
widely felt among reformers that a rational compensation system cannot even
confine its coverage to accident victims, since the needs of a person under
disability are not mitigated by the fact that it has been from illness or congenital
cause rather than by accident. On this view, even the comprehensive New
Zealand Scheme suffers from the vice of cause-related compensation. But if we
bring in illness, we enter a wholly different statistical dimension, since it is
generally thought tpat the contribution of accidents to all forms of disability is not
more that about 10 per cent. Reform in this area is as much about politics as
principle, and the present system contains a whole range of firmly entrenched
misconceptions about the nature and quantum of compensation, not to mention
Bested interests (of particular classes of victims as well as of personal injury
lawyers). If there were no social system and an persons suffering disability for
no-fault reasons were condemned to utter destitution, it might be possible to
raise a sufficient head of steam for a new and comprehensive approach. But the
basic social security system does not exist and reform may well be perceived by
the public as "fine tuning" brought about the price of taking away existing rights
and there are no votes in that. Even the present social security system is proving
difficult to sustain and the prospect of the additional funding necessary to support
general disability compensation at more than subsistence level appears remote.
There is perhaps more chance of the introduction of limited ad hoc no-fault

43
 "">l"'.i2:,1t; '\&o':,><

schemes, but these are likely to make comprehensive change even more difficult
by creating further critic enclaves of preferential treatment. Professor Atiyah, the
foremost critic of the tort system for personal injury, has suggested that the best
way forward might be simply to abolish tort liability across the board and leave it
up to people to buy loss insurance cover for themselves and their families,
thought he would have a compulsory no-fault cover for road accidents (based on
policies paid by car owners) because the existence structure of mixed
liability/property damage insurance in that area could be adapted without undue
difficulty.

•
ACTIVITY 9: Questions for discussion
11

1. What are no-fault compensation schemes, and what forms

do they generally take?
2. How did the Criminal Injuries Compensation Scheme of 1964
evolve into the Criminal Injuries Act of 1995 and how is the
latter administered?
3. What are the advantages of the 1995 Scheme over the
abortive tariff scheme which was declared unlawful?
4. Show why the Criminal Injuries Compensation Scheme "has
been subject to severe criticism on the ground that it lacks
theoretical foundation and is merely an attempt to single out
yet another group of unfortunates for special treatment.

,~

44
 UNIT4
THE PLACE OF iNTEN1"10N AND MOTIVE AND NEGLIGENCE IN THE LAW
OF TORTS

OBJECTIVES: At the end of this unit, you should be able to:-

• Define damage and liability.

• Distinguish between damage suffered and an injury having legal
consequences.

Topic 1: DAMAGE AND LIABILITY

The law distinguishes between two concepts - (1) Damnum, which means the
damage suffered and (2) injuria, which is an injury having legal consequences.
Sometimes, but not always, these two go together. For instance, if I negligently
drive a car and injure a person, he suffers damnum (the hurt) and injuria
(because he has a right of action to be compensated). There are, however,
cases of damnum sine injuiria (damage suffered without the violation of a legal
right), and injuria sine damno {the violation of a legal right without damage.

The mere fact that a person has suffered damage does not entitle him to
maintain an action in tort. Before an action can succeed, the harm suffered must
be caused by an act which is an violation of a right which the law vests in the
claimant or injured party. Damage suffered in the absence of the violation of
such legal right is known as damnum sine injuria. Furthermore a person who
suffers damnum cannot receive compensation on the basis of injuria suffered by
another. The concept of damnum sine injuria is not the same as that concerning·
whether there is a law of tort or a law of torts because under the concept of
damnum sine injuria a person may suffer harm and have no claim even though
the harm was suffered as a result of a known tort.

ACTIVITY 1: Questions for discussion

1. Distinguish between "Damnum and lnjuria"

2. Is the distinction justifiable?
3. Why is a person who has suffered damage
not necessarily entitled to maintain an action
in tort?

45
 '"1-; •:c:<y.n::.1:J1ii:W.S@ttW'i?TW z:::·

Topic 2: MALICE
The fact that the defendsnt acts with malice, i.e. with the intention of injuring his
neighbour, does not give rise to a cause of action unless a legal right of the
claimant is infringed (see "motive" below). On the other hand, whenever there is
an invasion of a legal right, the person in whom the right is vested may bring an
action and recover damages (though these may be nominal) or, what may be
more important, obtain an injunction, although he has suffered no actual h?rm.
For example, an action will lie for an unlawful entry on the land of another
(trespass) although no actual damage is done. Furthermore, in Ashiby V White
(1703) 2 ld Raym 938, it was held that an elector had a right of action, for a form
of nuisance or disturbance of rights, when his vote was wrongly rejected by the
returning officer although the candidate for whom he tried to vote was elected.
This is known as injuria sine damno.

ACTIVITY 2: Questions for discussion

I. What is the essential characteristic of malice?

2. Can a person obtain an injunction although he has suffered no harm?
Give an example.

Topic 3: MOTIVE
The law of torts is concerned more with the effects of injurious conduct than with
the motives which inspired it. Hence, just as a bad intention will not necessarily
make the infliction of damage actionable, so an innocent intention is usually no
defence. However, there are circumstances in which malice is important. Thus
where a person puts in motion the criminal law against another, this is actionable.
If malice is shown to be present and is known as the tort of malicious
prosecution. Furthermore, the question of malice may be raised when certain
defences are pleaded. Thus in the law of defamation the defences of qualified
privilege and fair comment are allowed only where the defendant has not been
malicious. Finally,. in regard to the tort of nuisance, certain acts which would not
necessarily be a nuisance· may be regarded as such if they are exercised
unreasonably. Malice is sometimes regarded as evidence of conduct which is
unreasonable (see Christe v Davey, 1893, Chapter 21)

46
 ACTIVITY: Questions for discussion
1. Explain the meaning of 'The tort of malicious
prosecution."
2. Why is malice sometimes regarded as evidence of
conduct which is unreasonable?

Topic 4: INTENTION

Some torts require intention on the part of the wrongdoer. It is, of course,
impossible-for the law to do more than to infer a person's-intention, or indeed any
other mental state of his, from his conduct. The law may frequently attribute to
him an intention which a metaphysician would at most consider very doubtful.
Centuries ago, Brian C. J. said: "It is common knowledge that the thought of man
shall not be tried, for the Devil himself knoweth not the thought of man." On the
other hand, Bowen L; J. in 1885, had no doubt that "the state of man's mind is as
much a fact as the state of his digestion. There is no contradiction in these dicta.
All that Brian C. J. meant was that no one can be perfectly certain of what passes
• in the mind of another person. But Brian would certainly not have disserted from
the proportion that in law what a person thinks must be deducted from what he
says and does and that is all that Bowen L. J. meant.

Given this basic premise that intention can only be inferred from conduct we are
still left with the problem of defining intention. Everyone agrees that a person
intends a consequence if it is his desire or motive to bring it about, but that it is
probably not possible to lay down any universal definition for the purposes of tort.
In crime, the law now is that the jury is entitled (but not, it seems, required) to
infer intention where the defendant ·was aware that the harm was "virtually
certain" to result from his act. There has been much less discussion of intention
in tort and there are probably at least two reasons for his (apart from the relative
infrequency of cases on intentional torts). First, since the abolition of the forms of
action the claimant may sometimes. be able to fall back upon a wider principle of
liability for negligence. If I strike you, then provided I cause you hurt and that hurt
could have been foreseeable to a reasonable man then my conduct amounts to
the tort of negligence even if the court is in doubt whether I acted intentionally.
Secondly, white the criminal law may insist that the defendant's intention must
extend to all the elements and consequences of his act making up the definition
of the crime, the law of tort may separate the initial interference with the victim
from the consequences of that interference (remoteness of damage) and while
intention or foresight may be necessary as to the former it may not be as to the
latter. Thus, if A strikes B intending some slight harm but B suffers greater harm
(because, for example, he falls as a result of the blow). A is responsible for the
greater harm if it is a direct consequence of the blow: he need not foresee the
possibility of the greater harm even if it is the result of some unusual

47
 f''h _ _ _ _ _ _; ;

susceptibility of the claimant, a principle developed primarily in the context of

negligence but applying with even more force to intentional wrongdoer.

In one tort, conspiracy to injure, intention has the very narrow meaning of single-
minded purpose to do harm, so that the defendant does not "intend" even what
he foresees as a certainty if his purpose is to advance his own interests. Some
torts in the area of unlawful interference with economic interests may require that
the claimant is the "target" of the defendant's actions, though it has been said
that: "if an act is done deliberately and with knowledge of its consequences ( the
actor) cannot sensibly say that he did not "intend" the consequences or that the
act was not aimed at the person who, it is known, will suffer them." In the context
of trespass to land it has been said that indifference to a risk that trespass will
occur by animals in the defendant's charge amounts to intention and it is thought
that the same approach should be taken in all the trespass torts: if D throws his
coffee dregs out of the window of his office, knowing that others may be passing,
that should be trespass if anyone is hit, whether the street is so crowded that is a
virtual certainty or is comparatively unfrequented. This is the state of mind
referred to in the criminal law as "subjective recklessness," that is to say, the
wrongdoer is conscious of the risk he is taking. Where recklessness as to
consequences will do in tort, so will recklessness as to circumstances. Thus, the
tort of misfeasance in a public office is committed when a public officer acts
knowingly outside the scope of his powers with the intent that the claimant will
thereby be injured or if he is recklessly· indifferent to the legality of his acts and
the damage he may inflict on the claimant.

ACTIVITY: Questions for discussion

1. Is it possible to establish with certainty intention? Discuss.

2. Explain several ways in which intention can be established/inferred.

Topic 5: NEGLIGENCE
"Negligence" is an independent tort with a number of elements. What we are
concerned with at this point is negligence as the state of mind which is one
element of the tort (and of course of some other torts). In this sense it usually
signifies inadvertence by the defGndant to the consequences of his behaviour,
simple examples being the motorist who day dreams, the solicitor who forgets
about the approach of the limitation period or the doctor who forgets that the
patient is allergic to a treatment. ft may be that the word should only be used in
this sense but for the purposes of the tort of negligence a defendant clearly

48
 cannot escape liability because he adverted to the risk if the case is one where
even inadvertence would saddle him with liability. An illustration of advertence is
Vaughan v. Menlove, where the defendant had been warned that his haystack
•• was likely to overheat and catch fire, which might spread to the land of his
neighbour. He said that he would "chance it' and he was held liable for the
damage which occurred when the stack actually took fire. There ist therefore, a
certain degree of overlap between negligence and recklessness in the sense
described under the previous heading, though recklessness is not an
independent tort, merely an alternative element to intention in certain torts where
mere negligence will not do. liability for intentional or reckless behaviour in
those torts is generally more rather than less extensive than liability for
negligence but there may, paradoxically, be cases in which the reverse is true.
Thus, the limitation period for the tort of battery (requiring intention/recklessness)
is six years. For the tort of negligence {where it causes personal injury) it is three
years but with the two important qualifications that ( 1) time does not begin to run
until the claimant knows or ought to know that he has a claim and 2) even when
the period has expired the court may "disapply" the limitation period. It is,
therefore, easy to conceive a case in which the claimant would be worse off
under the law of battery than under the law of negligence and it seems from
Stubbings v Webb, where that it is not always open to him to frame his claim as
the lesser wrong to gain the procedural advantage. However, if we imagine a
case in which the claimant, a trespasser, is shot at night by the defendant firing a
gun into his garden, it is· hard to believe that even if the claimant has good
evidence the defendant shot him intentionally or recklessly he is required to
frame his claim as one for battery if instead he prefers simply to allege
negligence.

ACTIVITY: Questions for discussion

1. Discuss the various elements of negligence and

the state of one's mind as an element of negligence.
2. Highlight instances by way of situational examples when the tort of
negligence is inadequate.
3. Distinguish between the law of negligence and the law of battery.

Topic 6: BREACH OF STRICT DUTY

In some tortsr the defendant is liable even though harm to the claimant occurred
without intention or negligence on the defendant's part. Thus, it was laid down in
the celebrated case of Ryland v Fletcher that : "If a person bring or accumulates
on his land anything which, if it should escape, may cause damage, he is
responsible, however careful he may have been, and whatever precautions he

49
may have taken to prevent damage." This is sometimes styled "absolute"
liability, but the epithet is misplaced, as there are possible defences even to torts
of this kind, for example, the act of a third party excludes liability under the rule in
Rylands v Fletcher. Liability in nuisance may be strict where the defence himself
or someone for whom he is responsible has created the nuisance. Liability for
breach of a statutory duty is often not dependent on proof of negligence, and
where an Act requires something to be done without qualification, contravention
of the statute automatically establishes liability.

ACTIVITY: Question for discussion

1. Is "absolute" liability justifiable? Discuss its merits and demerits.

Topic 7: "REASONABLE" AND "REASONABLE MAN"

It is convenient to insert an explanation of the terms "reasonable» and
"reasonable man." They recur so frequently in the law of tort, and indeed in
every branch of the law, that their meaning must be grasped at the outset of this
exposition. As to the law of tort, reasonableness is an essential ingredient in the
law of negligence, whether that word be used to indicate an independent tort or a
mental element in the commission of certain other torts and more will be said of .
this in the chapter on negligence. But there are many other torts in which, in one
way or another, the idea appears. If any broad sense can be extracted from the
various signification of "reasonable conduct" it might be described as the
behaviour of the ordinary person in any particular event or transaction, including
in such behaviour obedience to the special direction (if any) which the law gives
him for his guidance in that connection. This is, of course, an abstraction. Lord
Bowen visualized the reasonable man as "the man on the Clapham omnibus" an
American writer as "the man who takes the magazines at home, and in the
evening pushes the lawn-mower in his short sleeves. Despite the inveterate use
of the masculine gender, there is no doubt that the personification includes the
reasonable woman in the sense that the abstraction is not intended to embody
peculiarly masculine values or patterns of behaviour and no doubt reasonable
person is gradually becoming the preferred expression. The reasonable person
has not the courage of Achilles, the wisdom of Ulysses or the strength of
Hercules nor has he "the prophetic vision of a clairvoyant." He win not anticipate
folly in all its forms, but he never puts out of consideration the teachings of
experience and so will guard against the negligence of others when experience
shows such negligence to be common. He is reasonable but he is neither a
perfect citizen nor a "paragon of circumspection." While one does not expect the ,
reasonable person to be all seeing and all knowing and he can therefore make
"reasonable mistakes", he is not the "average person. 1' In reality no individual is
infallible and even the most careful person will probably on a few occasions fail to

50
foresee a risk when he has no excuse for doing so. In the limited sense that the
legal personification of due care will never fall below the standard set by the law
he does not resemble any living human being. This is good so far as it goes, but
it must be added that where a person exercises any camng, the law requires him,
in dealing with other people in the course of that calling, to exhibit the degree of
skill and competence which is usually associated with its efficient discharge.
Nobody expects the passenger on the Clapham omnibus to have any skill as a
surgeon, a lawyer, a docker, or a ·chimney-sweep unless he is one: but if he
professes to be one, then the law requires him to show such skill as any ordinary
member of the profession or calling to which he belongs, or claims to belong,
would display.

The description of "reasonable" just given is, and can only be, a rough
approximation for exactness. As was indicated in it, if the law gives special
directions for the guidance of the ordinary person, he must regulate his conduct
by them if his conduct is to be regarded as reasonable. Now these directions are
often so precise and technical that a person, if he is to ascertain and act upon
them, strikes one as anything but a commonplace person, and seems to need
the Clapham lawyer at his elbow on many occasion. Here the judicial method,
being what it is, shows two rather conflicting tendencies. One is to get as near
exactness as may be in the rules relating to what is regarded as reasonable.
The other is to recognize that complete exactness is neither attainable nor
desirable. Nor is this all. The judge has to decide what "reasonable" means, and
it is inevitable that different judges may take variant views ori the same question
with respect to such an elastic term. An extreme example of this was a case in
which "reasonable cause" was an element and the very same act was held by an
appellate criminal court to be a felony punishable with penal servitude for life,
and by an appellate civil court to be not even a tort. But conflicts of this sort are
very unusual, and although we shall find the reasonable person doing some thing
which a moralist would regard as quixotic and a good many other things which he
would condemn as slovenly or even cowardly1 yet the law upon the whole strikes
a fair average between these extremes.

Several other phrases will be encountered in the law reports which have
sometimes, but not always a meaning equivalent to "reasonable." Such are
"fair', "just", "natural justice." Like certain other phrases (for example "judicial
discretion"), they show that although law and ethics are distinct topics, it is
impossible to make or to administer a civilized system of law without taking
account of current ethical ideas, .which include not only corrective justice (the
notion that harm should be redress) but also distributive justice (the fair
distribution of losses and burdens in society}. The notion of what is "fair, just and
reasonable" now plays a major, overt role in determining the existence and scope
of the duty of care which is the foundation of negligence.

51
 ACTIVITY: Questions for discussion

1. "Reasonable" and "reasonable man" are elastic terms. Discuss the

extent to which this is true.

2. ls"naturat justice" subject to jury

manipulation? Discuss. ·

Topic 8: MOTIVE AND MALICE

Motive may be conveniently treated here. It signifies the reason for conduct.
Unfortunately it has become entangfed with the word "malice" which is used quite
differently in the law of tort. It may mean what the layman usually takes it to be -
"evil motive" or spite - or the purpose of causing harm to someone, or it may
simply signify doing an act willfully without just cause or excuse. The last two
senses have really nothing to do with motive but refer to intention, a term which
ought to be confined to advertence to conduct and its consequences, and which
is quite colourless as the motive which influences the actor. The meaning of
· malice has to be considered in the context of each tort where it is said to be
relevant - for example,. defamation, malicious prosecution and misfeasance in a
public office.

MOTIVE GENERALLY IRRELEVAr~T

As to motive in its proper meaning, the general rule is that, if conduct is
presumptively unlawful, a good motive will not exonerate the defendant, and that,
if conduct is lawful apart from motive, a bad motive will not make him liable. We
shall see that there are several exceptions to the second part of this rule. To the
first part of it, defences like necessity and private defence are exceptions, for
they depend to a certain extent on a good motive on the part of the defendant.

The general irrelevancy of evil motive was affirmed by the House of Lords in
Bradford Corporation v. Pickles. Pickles was annoyed at the refusal of the
Corporation of Bradford to purchase his land in connection with the scheme of
water supply for the inhabitants of the town. In revenge, he sank a shaft on his
land. The water which percolated through his land in unknown and undefined
channels from the land of the corporation on a higher level was consequently
discoloured and diminished when it passed again to the lower land of the
corporation. For this injury Pickles was held not liable. "It is the act", said Lord
Macnaghten, "not the motive for the act that must be regarded. If the act, apart
from motive, gives rise merely to damage without legal injury, the motive,
however, reprehensible it may be, will not supply that element." Three years
later this was again emphasized by the House of Lords in Allen v. Flood and, for
better or worse 1 it remains the general rule today. As we shall see, however,

52
there arc certain exceptional cases in which the evil motive of the defendant, if
proved, will tip the scales of liability against him.

ACTIVITY: Questions for discussion

1. How is motive different from intention?

Explain.

2. ls it possible to have "evil motive" with 'good

intention' or vice-versa? Discuss.

53
 UNITS
TRESSPASS AND CASE

OBJECTIVES

At the end of this unit, you should be able to:

• Appreciate the degree to which the past practices and opinions

have influenced the present structure of tort law.
• Demonstrate an understanding of the meanings of trespass and
case and how the development of tort law has been more of
evaluation rather than a revolution.
• Discuss the legal basis of a claim
_!_ _ Di~cuss the tort law unification complexities.

Topic 1: THE STRUCTURE OF TORT LAW: HISTORY AND INFLUENCES

A practical legal system could hardly avoid the practice of some degree attaching
labels to different types of tortuous wrongdoing: in most systems for example,
"tort" embraces both defamation and accidents causing bodily injury, but it would
be surprising if the rules of liability were identical for both types of case. So a
French or German lawyer will in practice make use of the limited categories such
as those we call "nuisance" or "defamation". Yet the codified, civil law systems
typically have a rather broad, unified theory of tort liability, even if it is not usually
wholly comprehensive. France is the best-known example, for the framers of the
Code civil at the beginning of the 19th century managed to get all of tort law in to
five short articles (two of which were about tumbledown buildings and animals,
both of which seem to attract a special rule in most legal systems). Certainly the
laconic words of the Code have been interpreted (in some areas one might even
say perverted) by a mass of subsequent case law and supplemented by much
special legislation (for example on the road accidents) but the core remains-in
France the basic source of the law is a legislative statement of a very broad
nature. Here, on the other hand, the substance of tort law is a mass of case law
stretching back hundreds of years. Of course the French core is 200 years old
and life was in some respects simpler then, but a modem product in the
European style may not be very different. The newest European Code is that of
the Netherlands, the relevant part of which came into force in 1992 and it is
instructive to took at Article [Link].

1. A person, who commits an unlawful act towards another which

can be imputed to him, must repair the damage which the other
person suffers as a consequence thereof.
2. Except where there is a ground of justification, the following acts
are deemed to be unlawful: the violation of a right, an act or

54
 omission violating a statutory duty or a rule of unwritten law
pertaining to proper social conduct.
3. An unlawful act can be imputed to its author if it results from his
fault or from a cause for which he is answerable according to
law or common opinion.

There are some other substantive articles { again building and animals feature, as
well as the now obligatory products liability) and provisions on ancillary matters
like vicarious liability, but [Link]. is the source, for Dutch purposes, of at least
fifty percent of the matter dealt with in this book.

TOPIC 2: THE FORMS OF ACTION: TRESPASS AND CASE

Perhaps it might be possible to draw up a broad principle encapsulating most of

the common law of tort in this way (though whether it would be worthwhile is
another matter) but that is not the way we have operated and what we did in the
past colors our thinking now. The law of tort grew up, like other branches of our
law, behind a screen of legal procedure. Until the mid-nineteenth century, the
question which arose when a claimant sued a defendant of some alleged injury
was not "Have the claimant's rights been infringed by the defendant?") or even
"Has the defendant broken some duty which he owed to the claimant?" but "Has
the claimant any form of action against of action against the defendant, and if so,
what form?" 1f he could not fit his claim into one of the recognized forms of
action, he had no legal grievance. An action was usually commenced by a royal
writ issued from the Chancery, which is in this sense signified not a court of law,
but a government department, one of whose functions was the creation and
issue of these writs. It was known also as the officina brevium which has been
conveniently translated as "the writ-shop", for a claimant could not get a writ
without paying for it. For a very considerable period or our legal history the
shape of the law was no more than a classification of writs. The writs that
remedied the injuries which in modern time are called torts were principally the
writ of trespass and the writ of trespass on the case or "case". Trespass in
common parlance now signifies unauthorized entry on another person's land, but
in law it has a wider signification, as it has in the King James Bible. The writ of
trespass lay for injuries to land or to goods, or to the person. But it was limited to
injuries which were direct and immediate and it did not extend to indirect or
consequential injuries: so it was trespass for me to throw a brick at you and hit
you but not if I left an unlighted pile of bricks in the alley at the side of my house
and you stumbled over them. But these indirect injuries came to be remediable
through the action on the case. These two classes of action, "trespass" and
"case", existed side by side for centuries and to them we owe most of our law of
tort. These were, however, definite distinctions between these two fonns of
action and until the nineteenth century it was vital for a claimant to choose
correctly between them. Only after the reforms of that century had broken up the

55
 '.;{'$~0.i;.'¾frtr ep~e

cast-iron moulds of procedure did it cease to be necessary "to canvass the

niceties of the old forms of action. Remedies now depend upon the substance of
the right, not on whether they can be lifted into a particular framework".
Nevertheless at least a basic knowledge of the forms of action is stilt necessary
not only for the understanding of the old authorities but also for the classification
of much of the modern law. In Maitland's famous phrase, "The forms of action
we have buried, but they still rule us from their graves." In the course of time
certain types of claim acquired more specific names, such as assault, battery,
libel, slander, nuisance and negligence and so on. The fact that they acquired
such names was due to mere accidents of terminology traceable probably to thelr
frequent occurrence, but they still have their roots in the ancient categories, so
that even now (although trespass and case are long gone) a lawyer might explain
that the reason why a claim for negligence requires proof of damage, whereas a
.claim for battery does not is that the former is (or was) an action on the case, the
latter one in trespass.

1
ACTIVITY: Questions for discussion

1. Distinguish "trespass" from "case" as forms of

action.
2. Maitland asserted that "The forms of action we have
buried, but they still rule us from the graves"
Asses the degree to which practices and opinions
have affected the general build-up of the structure
tort of law.

So we cannot point, at least without .some distortion, to say any single,

comprehensive concept or wrongdoing which leads to tortious liability. One
might get the impression from a reading of modern case law that there was such
a concept in the idea of "negligence", which dominated tort law through most of
the twentieth century (and which dominates tort courses even more than text
books) but common sense and simple morality tell us that where [Link] liability
for negligence there must be also liability for international harm; indeed, liability
for intentional wrongdoing is and probably should be, wider than that for
negligence. In the European systems both types of conduct are easily
accommodated under the name of "fault" {as in the Dutch Code) and at hey are
both placed under the same heading. As a practical matter one may say that
fault is as much a dominant feature of ort liability here as in those systems, but to
say that we had a general concept of fault would be over-simplify the law, for our
international torts such As battery and deceit came into existence long before any
general conception of negligence and they continue to carry some of their history
with them. For example, battery, as a form of trespass to the person, requires a
"direct" injury to the victim. There is no doubt that if willful physical harm is done
indirectly that leads to liability in tort but we cannot can it either battery or

56
negligence, so we are reduced to describing it by the name of the case at the
end of 19th century which established that there was liability in such
circumstances.

There is, therefore, no doubt that we have a collection of torts rather than a
single principle. But this does not prevent the courts creating new heads of
liability to meet changing circumstances or changing perceptions of the need for
protection from harm. Sometimes this may occur very suddenly, as happened in
the middle of the 19th century, when the tort of inducing breach of contract was
established, on other occasions the process may involve more of a synthesis c,f
existing principles, the culmination of an evolution rather than a revolution, as
happened when the foundation of the general law of negligence was laid in 1932.
In the case of the latest addition to the family there is some doubt about the
parentage of the offspring. The modern law has seen a marked development of
the law of confidence and it seems likely, that propelled by the Human Rights Act
1998, this has now cut loose from any strict requirement that the information
should have been imparted in confidence by the person to whom it relates,
though it seem not quite to have become a general basis for the protection of
privacy against wrongful intrusion. The predominant view has been that the law
of confidence rests upon equitable principles rather than upon tort but in practical
terms this is perhaps a distinction without a difference, as witness the occasional
judicial reference to the "tort of breach of confidence". The traffic is, of course,
not all one way: a head of tortious liability may be born, acquire a name and be
cut off by other developments befofe it reaches its prime.

ACTIVITY: Question for discussion

l. Explain why it is impossible to point, without distortion, to any

single comprehensive concept of wrong doing which leads to
tortuous liability.

The forms of action have long gone: for a century and a half there has been a
more or less uniform process for starting all civil claims for damages, now a claim
form under the Civil Procedure Rules. But it has not been in accordance with the
tradition of the common law to analyze rights as something separate from the
remedy given to the claimant, so that although we have abolished the procedural
restrictions of the forms of action, it is still necessary for the claimant to estabHsh
a case of action. It is not; therefore, correct to say that a person has a basic right
not to have untruths told about himself, for he is on1y abte to restrain the
publication of such untruths if the circumstances in which they are disseminated
fall within a specific tort such as passing off, malicious falsehood or defamation.
To some extent this basic approach has changed under the Human Rights Act

57
 '·,;-,.,,:,;;;(Qi«{f{,{'

1998, under which the English court may take account of the rights and freedoms
guaranteed by the European Convention on Human Rights. This guarantees for
example the rights to life, to liberty and to the enjoyment of property but it seems
that, in the medium term at least, we are more likely to rely on these to modify
existing rules of tort law where necessary than to rewrite the rule of book in terms
of rights rather than liabilities.

ACTIVITY: Question for discussion

1. How possible is it that, contrary to the tradition of the common

law, an analysis of human rights could be made as something
separate from the remedy given to the claimant? Give
examples.

It is important to realize that the various torts are not exclusive of one another
that there is no reason why a given set of facts should not contain the elements
of several of them. The claim form which initiates a civil case must contain a
concise statement of the nature of the claim and this is supplemented (later,
except in the simplest cases) by particulars of claim which contain "a concise
statement of the facts on which the claimant relies". The purpose of the exercise
is to enable the opposing party to know what case is being made in sufficient
detail to enable him properly to answer it. Today the claimant does not
necessarily have to specify the particular tort on which he wishes to rely, for the
issue is whether what he alleges (in traditional terminology) "discloses a cause
of action", i.e. a set of facts for which there is a legal remedy. It is; therefore,
open to the claimant to assert that the factual situation gives rise to a basis of
liability which has never before been expressly recognized. In practice, however,
it is normally prudent and may in practical terms be essential for the claimant to
identify by name the cause of action on which he relies: judges are presumed to
know the law, but they are entitled to and should receive the assistance of
councel. Furthermore, subject to the court's power to allow amendment of
pleadings (probably now to be exercised less generously than in the past) no one
is allowed to lead evidence of facts which has not pleaded. If the facts in the
claim do not show a sustainable legal basis for the claim even if they are all
proved, the defendant may apply to have the claim struck out or apply for
summary judgment on the ground that the claim has no reasonable prospect of
success. So, what is necessary to get to trial is that the facts alleged should
include those essential to liability under at least one tort without at the same time
including any which are fatal to that liability. For this purpose the court is not
concerned with the evidence, i.e. with whether the facts alleged can be proved,
but with whether the facts if proved can realistically be regarded as being the
possible basis of a claim. But the whole sequence of events leading up to the
claimant's damage may include the essentials of more than one tort and where

58
 this is so the position is simply that there is more than one reason why the
claimant should succeed.

ACTIVITY: Questions for discussion

1. What do you understand by the term "Claim form"? Discuss its content
2. Why is .it important that judges in spite of their
thorough knowledge of the law need to receive the
assistance of the councel by way of claimant's
"cause of action"
3. Why is if vital for the counsel for the claimant to
plead an the essential facts of a particular tort or
torts in such a manner that they conform to those
torts which are recognized?

• Put shortly, therefore, it is necessary for counsel for the claimant, in settling the
particulars of claim, to plead all the facts which are essential to the particular tort
or torts on which he intends to rely. One cannot, however, simply plead all the
facts which led up to the claimant's injury, for this would be to go back to the
creation of the world. One is bound to select from the whole complex of facts
those which are relevant to the client's claim in point of law. And this is, of
course, one cannot do save by reference to particular torts which are recognized
(or at least which one hopes to convince the court should be recognized}.
Suppose that the defendant has orally stated of the stated of the claimant, a
shopkeeper that the claimant habitually sells goods which he knows to have
been stolen. Here the defendant's words prima fade fail under the tort known as
"slander of title" or "malicious falsehood" and also within that form of the tort of
defamation known as "slander actionable per se". Now it is not normally an
essential of the tort of defamation that the defendant should have used the words
maticiously, but this is an essential of malicious falsehood. If, therefore, the
claimant wishes to make use in argument of that tort he must allege in his
pleading that the defendant acted with malice. Otherwise, even though the
defendant was in fact malicious, he will be precluded from proving this at the trial
and so will fail to bring his case within malicious falsehood. He will thus lose the
advantage of an alternative line of argument which, on the facts as they actually
occurred, should have been open to him. The claimant may, or course, have
practical reasons for not pursuing all the causes of action available. In Joyce v.
Sengupta a statement published about the claimant was clearly defamatory on its
face but the claimant sued only for the tort of malicious falsehood because legal
aid was then available for the tort but not available for defamation. An argument
that this was an abuse of the process of the court was rejected, for

59
"When more than one cause of action is available to him, a plaintiff may choose
which he will pursue. Usually, he pursues all available causes of action, but he is
not obliged to do so. He may pursue one to the exclusion of another... I have
never heard it suggested before that a plaintiff is not entitled to proceed in this
way ... [or] that he must pursue the most appropriate remedy"

We may say, therefore, that the law of tort is divided over the various torts which
we are now to consider, but life itself is not similarly divided. The law of tort may
say, "If A, 8 and C, then liability in negligence" and also "If A, 8 and D, then
liability in nuisance". Life may produce A, B, C,D, E, F, G, H. If it does and
assuming E, F, G and H to be legally irrelevant, the claimant should plead and
prove "A, B, C, D". If he does he is entitled to succeed under the rules both of
negligence and of nuisance. But this conclusion cannot, of course, be reached
by one who is not familiar with the essentials of each particular tort.

ACTIVITY: Questions for discussion

1. What do you understand by the term l(Prima facie"? Discuss its

legal significance

The grouping of particular torts which have acquired names in any sort of
classification is of no value except for purposes of exposition. And even for that
it cannot possibly be scientifically complete. Following his definition of tortuous
liability, Winfield made the liability of the defendant and not the interest of the
claimant which is infringed the roo~ of his classification, while there is nowadays a
tendency to adopt the other course. The order followed in the succeeding
chapters adheres strictly to neither course but has as its principle aim no more
than the avoidance, so far as reasonably possible, of repetition and of references
forward to later chapters. The object is comprehensibility and the convenience of
the reader who wants to begin at the beginning and go on to the end. The result
is neither "historical" nor "scientific". If convenient, that is enough reference has
already been made to the contrast in "style" between the common law and the
codified European systems. Our courts have tended to look not to Europe but to
the development of the common law in the Commonwealth and the United
States. But we are also now part of a complex of European institutions which
have a political as well as an economic agenda and which have already gone
some way to harmonizing and unifying very historically diverse systems of law.
Most of this activity in private law has so far been in the context of particular
pockets of law {product liability and package holidays, for example) but work so
far advanced on a project for the production of a common European Code of
Contract and there have been proposals in the European Parliament for
European Code of Private law. It seems likely that for practical and historical

60
reasons any unification of tort law would be a great deal more difficult than in the
case of contract but there is now a much greater consciousness among English
judges of the domestic law of other European countries and in some modern tort
cases in the House of Lords have dravvn heavily on comparative material. Of
more immediate concern for any student is the impact of the European
Convention on Human Rights.

ACTIVITY: Questions for dfscussion

1. When is the court not concerned with evidence

and hence discuss the legal basis of a claim?

TORT LAW AND HUMAN RIGHTS

The United Kingdom was the first state to ratify the European Convention on
Human Rights and Fundamental Freedoms signed at Rome in 1950. The
Convention binds its signatories on an international plan to secure to citizen the
rights and freedoms defined in the Convention but do not require that a state
should incorporate the Convention in domestic law so as to require local courts to
apply it. Hence, until the coming into force of the Human Rights Act 1998 in
October 2000, the Convention was not directly part of English law. A person who
claimed to be a victim of a violation of the Convention might, however, petition
the European Commission of Human Rights in Strasbourg and if that body found
the complaint admissible (one condition of which was the exhaustion of local
remedies) the case would go before the European Court of Human Rights.

ACTIVITY: Question for discussion

1. What influence does the political and economy

system of a particular country have on tort law?

61
 UNITS
ASSAULT AND BATTERY

OBJECTIVES: At the end of this unit you should be able to:

• Clearly distinguish between an "assault" and a "battery"

• Aptly discuss the various depends to an action brought for assault or for
battery
• Explain the various forms of trespass and the different actions applied to
each other.
• Discuss acts of trespass to a person as crimes as well as torts.
• Define what an actionable offence is.
• Exhibit an understanding of hostility consent as they relate to battery.

Topic 1: ASSAULT
An assault is an attempt or offer to apply unlawful force to the person of another.
There must be an apparent ability to carry out the threat, the basis of the wrong
being that a person is put in present fear of violence. On general principles,
pointing even an unloaded weapon or a model gun at another, who does not
know that it is unloaded or a model, would amount to an assault

It is often said that mere words cannot constitute an assault but this is a doubtful
proposition. In Ansell v. Thomas [1974] Crim LR 31 the assault seems to have
consisted in words threatening forcible ejectment of a director from the
company's premises if he did not leave voluntarily. A threat to use force at some
time in the future is not an assault, but it seems that it is enough if the threat is to
use force if the person addressed does not immediately do some act. In Readv.
Coker (1853) 138 ER 1437, it was held that an assault was committed where the
defendants threatened to break the claimant's neck if he did not leave the
premises. Words, however, may prevent an assault coming into being.

As regards the unauthorized taking of a photograph the position is some what

complicated. It may be that where a flash is used the simple taking of the
photograph without more is unlawful, since itis probably a battery (see below) to
protect light on to another person in such a manner as to cause personal
discomfort. Where no flashes used, it is hard to see how, by it, the taking of a
photograph can amount to a battery, an assault or any other trespass.

Topic 2: BATTERY
Intentionally to bring any material object into contact with the person of another is
enough application of force to give rise to a battery. Thus to throw water on a
person (Pursell v Horn (1838} 8 A E 602}, or to apply a 'tone-rise' to the scalp of
a customer which was not ordered and caused damage, i.e. skin rash, is enough
(Nash v Sheen, The Times, 13 March 1953). Substantial damages will be
awarded when the battery is an affront to personal dignity, e.g. the wrongful

62
taking of a fingerprint. It should, however, be noted that a person who has been
detained and charged with or told he will be charged with a recordable offence,
e.g. an offence punishable by imprisonment, can have his fingerprints taken
without consent )s 61, Police Criminal Evidence Act 1984 (referred to hereunder
as PACE). Persons who are convicted of a recordable offence but fined rather
than imprisoned can be required to attend at a Police station for prints to be
taken. Failure to do so allows arrest without warrant (PACE, s 27). The mere
jostling which occurs in a crowd does not constitute battery, because there is
presumed consent and in any case there is normally no hostility which is also a
requirement. Thus in Wilson v. Pringle [1986] 2 all ER 440, one schoolboy had
intentionally pulled a schoolbag off another boy's shoulder. However, this was
only a form of horseplay and in the absence of a hostile intention there was no
battery. It should be noted that there may be a battery without an assault, as
where a person is attacked from behind.

There may be exceptional cases where there is a battery even though there is no
physical contact with the victim. Thus, in Haystead v. OPP, The Times, 2 June
2000 a man hit a woman causing her to drop the child she was holding. The
court ruled that in the circumstances there was a battery to both woman and the
child.

ACTIVITY: Questions for discussion - True or False

1. Pointing a model gun to a person constitute a

assault
2. Threatening words constitute an assault.
3. Unauthorized taking of a photograph with or
without a flashlight does not constitute an
assault. -

Topic 3: WAS THERE CONSENT?

In considering the defence of volenti there has already been some treatment of
informed consent In an action for alleged negligence in medical case (see
Sidaway v Beth/em Hospital Governors (1984} 1 All ER 1018 in chapter 20). A
similar issue was raised in Freeman v Home office (1984) 1 All ER 1036. The
claimant was serving a sentence of life imprisonment. He was given drugs by a
medical officer employed by the Home Office. He claimed that the drugs were
given to discipline and control him and not, as he thought, as medical treatment.
He claimed that the medical officer had committed battery upon him and that his
consent was negative because it was not informed. The Court of Appeal decided
that since the doctrine of informed consent formed no part of English law, the
sole issue was whether on the facts the claimant had consented to the

63
administration of the drugs and on that issue the trial judge had found that the
claimant had so consented. His claim therefore failed ...

In Re MB ( Caesarian Section) ( 1997) 147 NLJ 600 the Court of Appeal held that
a woman with full capacity could consent to or refuse treatment even though
refusal might result in harm to her or her baby. However, doctors were entitled to
administer an anesthetic to carry· out birth by caesarian section where it was the
best interest of the woman and her child given that she had a temporary lack of
capacity because of panic brought on by fear of injection by needle.

Those who suffer passively from the smoking of others are able to claim
damages for battery. Since spitting at someone is a battery there seems no
reason why blowing out poisonous smoke in the vicinity of other people should
not also be. Thus in Bland v Stockport Metropolitan Borough Council (1993) CLY
1506 a woman who had been exposed to passive smoking for 11 years at her
work received £15,000 damages for injury to her health including in particular
bronchitis and sinusitis. In addition, a claim for damages for mental illness
allegedly caused by sexual abuse has been brought against an alleged abuser
and has been allowed to proceed (Subbings v Webb [1991] 3 all ER 949).

In general there will be some active conduct constituting the assault. However,
the courts have accepted that a battery can arise from an omission.

ESSENTIAL CASE LAW AND COMMENT

Fagan v Metropolitan Police Commissioner, 1968 - A battery from an omission
(350)

Topic 3: DEFENCES
There are certain defences to an action brought for assault or for battery:

(a) Self-defence. This is not merely the defence of oneself but also of
those whom one has a legal or moral obligation to protect. It also
applies to the protection of property, but no more than reasonable
force must be used.
(b) Parental or similar authority: As regards parents and those in laco
parentis, e.g. stepfather, s 1 (7) of the Children and Young Persons
Act 1933 provides a defence to the reasonable chastisement of a child
on a charge of assault. However, on the issue of the punishment of
children in the home, the European Court ruled in Av UK [1998] CLY
3065 that UK law failed to protect a boy who had suffered repeated
and severe beatings with a cane by his stepfather as contrary to Art 3
of the ECHR. The government has issued a consultation paper on the
matter but seems unlikely to outlaw all physical punishment. It is likely
to outlaw the use of implements such as canes, belts and slippers and
other degrading and inhuman treatments.

64
 As regards schools, corporal punishment is outlawed in all schools
under s131 of the School Standards and Framework Act 1998.

(c) Valenti non fit injuria: As in the case of players in a rugby match
(see Simms v Leigh RFC {1969).

(d) Judicial authority: This includes the right to inflict proper punishment
and to make lawful arrests.
(e) Necessity: This is not favored as a defence but may be allowed if the
defendant can prove that he committed the battery in order to prevent the
happening of a greater harm. Thus in Leigh v Gladstone { 1909) 26 TLR
139, the forcible feeding of a suffragette in prison was held justified by the
necessity of preserving her life.

Although the forced feeding of prisoners is not in general practiced in our

penal institutions, the case of Secretary of State for the Home Department
v Robb, The Times, 21 October 1994 is of interest. The high Court held in
that case that prison officials and medical attendants could lawfully abstain
from providing food or drink to a prisoner who did not want it but only as
long as he retained the capacity to refuse nutrition or hydration. After that
presumably forced feeding could take place. Furthermore, in B v Croydon
Health Authority, The Times, 1 December 1994 the Court of Appeal held
.that where a patient was detained under the Mental Health Act 1983,
feeding by tube without consent was lawful since it was treatment for the
patient's disorder. The patient in this case was given to inflicting harm
upon herself and her refusal to eat was another means of inflicting harm.

(f) Prosecution in a magistrate's court: Assault and battery is a crime as

well as a civil wrong. If the wrongdoer is prosecuted and summary
proceedings are taken by the victim and not the Crown and the accused in
convicted and punished, or the case is dismissed and the magistrates
award a certificate of dismissal, no further action or civil or0ct?enirru::; l'Y'JA"
be taken in respect of the particular w ..,...,- r
Act 1861, ss 44-45) .

• -4 '-~ "~-·

f ,' • ,.~ •✓,

.- l, ' I,

,,,.;
,.. .. ,,. 1,.,_~ I/:-
,, . . ;uJ!1" .~ 1f.t ••~1 ~~ r --. ' :,~ : .: l
 1
,:cn<-t2.1i{I:Tu}:#~feft ' ~w

FALSE IMPRISONMENT
This is the infliction of unauthorized bodily restraint without justification. It is not
necessarily a matter of bars and bolts, but any form of lawful restraint might turn
out to be false imprisonment. The imprisonment must be total and if certain ways
of exit are barred to a prisoner, but he is free to go off in another way, then there
is no false imprisonment. If a person is on premises and is not given facilities to
leave, this does constitute false imprisonment unless the refusal is merely the
insistence on a reasonable condition. It is not even essential that the claimant
should be aware of the fact of his imprisonment, provided it is a fact. Valent: non
fit injuria is a defe·nce to false imprisonment, as where a prison. visitor agrees to
be locked in a cell with the prisoner.

It should be noted that a defendant will not be liable for false imprisonment where
he merely gives information to the prosecution which affects the claimants arrest
and detention. Thus a store detective who incorrectly informed police officers
that the claimant had been shoplifting was not liable for false imprisonment
where the police had at their discretion arrested and detained the claimant {see
Davidson v Chief Constable of the North Wales Police and Another, The Times,
26 April 1993)

ESSENTIAL CASE LAW AND COMMENT

Bird v Jones, 1845 - Imprisonment must be total {352)
Herd v Weardale Steel, Coal and Coke Co Ltd, 1915 - Where refusal to allow a
person to leave is reasonable (353)
Meering v Grahame White Aviation Co Ltd, 1919 - Knowledge

Topic 5: ARREST AND THE TORT OF TRESPASS TO THE PERSON

An arrest or other restraint of a person, as by stopping and searching him, will be
unlawful and actionable as a trespass in civil law unless the following
requirements are met.

ARRESTABLE OFFENCES
The basic rule is that offences are arrest able if they carry a sentence of five
years or more (PACE, s. 24 (1) (b) or are offences for which the sentence is fixed
by law, e.g. murder (PACE, s 24 (1) (a).

A private person may arrest without a warrant anyone who is, or whom he, with
reasonable cause, suspects to be, in the act of committing an arrestable offence
PACE, s 24 (4). Where an arrastable offence has been committed, any may
arrest without warrant anyone who is, or whom he with reasonable cause,
suspects to be, guilty of the offence (PACE, s 24 (5).

66
 ACTIVITY: Questions for discussion -TRUE OR FALSE

1. There is no assault with battery.

2. There is no battery without physical contact.
3. A [Link] from an offender convicted of a recordable
offence does not constitute a battery.
4. "Battery is different in the Zambian context and the UK context
"assaults.

Topic 6: TRESPASS TO THE PERSON AND RELATED MATTERS

· Trespass to the person involves direct interference with a person's body or
liberty. In its original legal meaning "trespass" signified no more than "wrong"
and in early times the great bulk of trespasses were dealt with in the local courts.
A trespass which was also a breach of the king's peace, however, fell within the
jurisdiction of the king's courts, and in course of time the allegation that the
trespass was committed vi et armis came to be used as common form in order to
preserve the jurisdictional propriety of an action brought in those courts, whether
or not there was any truth in it. In its developed form the writ of trespass covered
injuries to land, to goods and to the person, but the first two are today more
conveniently considered in separate chapters.

There is no doubt that as a matter of history trespass to the person might be

committed negligently, i.e. inadvertently as well as by intention, though this is
probably not the law in England today. We return to this point later, but for the
moment we shall treat trespass to the person as requiring intention. There are
three main forms, namely, assault, battery and false imprisonment and their
common element is that the wrong must be committed by "direct means." What
precisely this means is difficult to say. The classical illustration was of throwing a
log into the highway and hitting a passer-by. In contrast if someone were to
stumble on the log that would be indirect, or "case." The broad idea of the notion
is easy enough to understand in the case of battery, where it seems to mean
something in the nature of a blow (though even that may be hard to define with
precision}. It is more difficult to give directness a clear meaning in the related
torts of assault and false imprisonment: the former requires no physical contact
and may now, it seems, be committed by making threats over the telephone, and
while the obvious form of the latter is physical seizure of the claimants by an
officer, it is clear that the tort is equally committed if the claimant submits to a
legal authority asserted by the officer. !n neither cases is there much meaning in
"directness," save that both situations involve a threat, express or implied, of the
infliction of force, though in the latter it is qualified. The point is really of very
limited importance because where some physical harm is intentionally inflicted by
indirect means there may be liability under the so-called rule in Wilkinson v.

67
 ,,,,-,;:H3.,Jj,i?:/P.,,

Downton" which is discussed below, and where harm has been caused
negligently that, in the modern law, is the tort of ground covered by trespass. For
example, where there is a trespass to the person the claimant may recover
substantial damages for distress or humiliation even though he suffers no
physical injury whatever - trespass is actionable per se. But if the defendant
uses indirect means to inflict humiliation on the claimant it seems that in English
common law there may be no action in the absence of some physical harm.

A distinction between what is "direct" and "indirect" is found in other contexts of

tort law. For example, at one time the leading test of remoteness of damage in
negligence was based on the theory that the defendant was liable for directly
inflicted harm even though it was unforeseeable. It seems unlikely that "direct"
had precisely the same meaning there as it does here. More recently, a majority
of the House of Lords drew a distinction between the direct and indirect infliction
of physical harm by negligence, a duty of care with regard to the former being
easier to establish than with regard to the latter, but there is no overt suggestion
that the distinction is meant to reflect the concept of directness in the trespass
torts.

No doubt it is necessary to draw distinctions between the different types of

intentional torts to the person: one might, for example, wish to restrict the
category of cases actionable per se to situations where there was some very
immediate interference with the claimant. However, it is questionable whether the
way in which the distinction between trespass and case, is defensible for all
purposes. For example, it is difficult to see why the two cases of D stabbing C
and D surrep~itiously poisoning C should be regarded in the civil law as two
different torts (as they must be if it is correct to say that the second injury is not a
battery) even if that is now unlikely to give rise to any practical difficulty.

ACTIVITY: Questions for discussion

1. Compare and contrast the different forms of

trespass.
2. Distinguish intentional torts from negligence.
3. Evaluate the different actions taken for
trespass.

Acts of trespass to the person are generally crimes as well as torts. In

comparison with the volume of offences against the person handled by the
criminal courts or the number of civil actions for negligence, civil action for
trespass to the person are not common. No doubt this has always been so, for in
trivial cases the claimant is likely to hesitate at the risks of civil litigation once
tempers could be cooled, and in serious cases the defendants nowadays do
much to remove the incentive to bring a civil action. Though there may be cases

68
in which an award of damages against a private defendant will exceed the sum
awarded under the Criminal Injuries Compensation Scheme, the number of
cases in which the necessary conditions are fulfilled and in which the defendant
is worth suing is likely to be small. In less serious cases the modest sums the
criminal court may award by way of direct compensation from the offender are
likely to be as much as the claimant would receive in practice by enforcing a civil
judgment, whatever the size of that judgment might be. However, civil suits are
sometimes brought for rather indirect motives, for example to make a "point of
principle" or to get an individual investigation or to provoke the prosecution
authorities had refused to prosecute. In exercising its discretionary power to
override the normal limitation period the Court of Appeal said that the fact that
there was a serious risk that the claimant would not actually receive any
substantial sum of money was not a reascn for declining to exercise the power.
_The claimant won her civil action against the second defendant (10,000 pounds
damages being awarded), who was then charged with murder and convicted.

To allow a civil action to be brought to remedy what the claimant perceives to be

the deficient outcome of the criminal process causes problems, though it is
consistent with the rather sharp division which we make between the criminal
(public) law and the civil (private) law. Less likely to attract criticism is the use of
trespass to the person in what appears to be ( and what has probably been for
two hundred years) its most important context - suits against the police and other
- public bodies. Here the law of tort may be serving more as a vindicator of
personal liberty than as a vehicle for compensating harm, a point emphasized by
the court's power to award exemplary damages in such cases. Even in this
context, however, the use of tort law is often said to be primarily motivated by
perceived deficiencies in the procedures for complaints and discipline in respect
of police conduct.

From a practical point of view the law has now become more complicated in the
area of conduct covered by the trespass torts. An advertiser may, for example,
have to consider civil liability under the Protection from Harassment Act 1997
(outlined later in this chapter) which, although it requires some element of
repetition, is in other respects much wider than trespass. Furthermore, a "public
authority" may incur civil liability under the Human Rights Act 1998 for acting in a
way incompatible with rights under the ELropean Convention on Human Rights,
though the overlap here is likely to arise in the context of false imprisonment
rather than assault and battery.

ACTIVITY: Question for discussion

1. Critique the law of torts.

69
 /§iJf?Z:ifo~<r8

Topic 7: ASSAULT AND BATTERY

Battery is the intentional and direct application of force to another person.

Assault is an act of the defendant which causes the claimant reasonable
apprehension of the infliction of a battery on him by the defendant.

In popular language the word "assault" is used to describe either or both of these
torts, but in this chapter it will be used in its strict sense. So to throw water at a
person is an assault but if any drops fall upon him it is battery; riding a horse at a
person is an assault but riding it against him is a battery. Pulling away a chair, as
a practical joke, from one who is about to sit on it is probably an assault until he
reaches the floor, for while he is famng he reasonably expects that the withdrawal
of the chair will result in harm to him. When he comes in contact with the floor, it
is a battery. Throwing over a cover on which another person is actually sitting is
either a battery or one of the forms of residuary trespass to the person; either
way the defendant is liable.

ACTIVITY: Questions for discussion

1. By way of situational examples, think

of instances that distinguish assault
from battery.

MEANING OF FORCE
If there is a forcible contact no damage is necessary, for trespass is actionable
per se. Any physical contact with the. body of the claimant {or his clothing) is
sufficient to amount to "force": there is a battery when the defendant shoots the
claimant from a distance just as much as when he strikes him with his fist and the
same is probably true when the defendant deliberately runs into the car in which
the claimant is sitting, shaking him up. Whether the infliction of such things as
heat or light or blowing smoke on a person would be battery is uncertain, though
the answer is probably no. Smoke is, from a scientific point of view, particulate
matter but for the purposes of trespass to it has been treated as an intangible
and therefore falling into the realm of nuisance. If exposing a person to smoke
were to be treated as trespass to the person we would merely foresaw: it can
hardly be the law that a smoker in a pub commits battery on all the non-smokers
near him, even if they show they object. Of course, if injury were intended and
caused by exposure to such things it would be actionable on the principle of
Wilkinson v Downton. Mere passive obstruction has been said not to be battery,
though in a criminal case thee was held to be a battery where the defendant
innocently drove his car n to the victim's foot and declined to move it.

70
Some situations raise the problem of "directness," which we have already
touched on. Depending on the view one takes of this in the modern law it may
not be battery if ! daub wil! filth a towel which I hope that you will use and you
unwittingly do so and befoul your face - a case in which one cannot fall back on
Wilkinson v Downton because there seems to be no "damage" but again in a
modern criminal case putting acid in a hand dryer so that it injured the next
person to use it was held to amount to battery. However, a rnther similar
uncertainty about "directness" is to be found in the criminal cases. In R. v.
Martin, where the defendant barred the doors of a that are and then caused a
panic in which patrons were injured trying to get out, two of the judges thought
that this, or digging a hole for a person to fall into, would be a battery. However,
the conviction was for the offence of unlawfully and maliciously inflicting grievous
bodily harm under the Offences Against the Person Act 1861, which does not
require a battery, and the modern view seems to be that "inflict" is, for practical
purposes, virtually synonymous with "cause." Even where battery is directly in
issue, rather than facing the issue head-on, the tendency seems to be to give a
broad meaning to "directly." Thus, in Haystead v. Chief Constable of Derbyshire
the defendant struck W in the face, with the result that the baby she was holding
fell to the floor. He was charged with an offence of assault (which in this context
includes battery) on the baby and his conviction was upheld by the Divisional
Court on the basis that "the movement of W whereby she lost hold of the child
was entirely and immediately the result of the (defendant's) action in punching
her_ There is no difference in logic or good sense between the facts on this case
and one where the defendant might have used a weapon to fell the child to the
floor, save only that this is a case of reckless and not intentional battery. Of
course in the civil law, if the baby had been injured, there would have been the
plainest possible case of negligence even if the defendant never gave any
thought to the likely effect on the baby.

For battery there must be a voluntary act by the defendant intended to bring
about the contact with the claimant. I do not commit battery against you if X
seizes my arm and uses it like a club - here X and X alone is liable. But the act
need be intentional only as the contact and intention to bring about the harmful
consequence is not required: if D pushes C into a swimming pool and injury
occurs, then, assuming D's act to be "hostile", there is liability for the injury even
though it was neither desired nor even foreseen by D.

71
 ,;-f];t'j/0);>,C•

ACTIVITY: Questions for discussion

1. Compare and contrast a battery and an assault.

2. Exemplify and describe different forms of force.
TRUE OR FALSE
3. A smoker in a pub commits battery
4. Exposure to x-rays when the patient has not consented
amounts to a battery.
5. Any unwanted kiss amounts to a battery.
6. Any unwanted touching amounts to a battery.
7. Injecting a sick baby amounts to a battery.

Topic 8: HOSTILITY
Life would be difficult if all bodily contact were actionable unless it could be
brought within a specific justification or defence and the courts have struggled to
find some further ingredient to distinguish battery from legally unobjectionable
contact. In Cole v Turner - Lord Holt C. J. said that "the least touching of
another in anger is a battery" but this would be too narrow, for an unwanted kiss
is as much actionable as a blow and "anger" might well .be an inapt description of
the defendant's motive: In Collins v Wilcock Robert Goff L.J. said that, quite
apart from specific defences such as lawful authority in effecting an arrest or the
prevention of crime, bodily contact was not actionable, if it was generally
acceptable in the ordinary conduct of everyday life. This is more satisfactory
than the somewhat artificial approach whereby a person is deemed to consent to
the multitude of minor contacts, including physical contacts, which take place in,
for example, a crowded underground station in the rush hour. Of course,
absence of consent is often relevant in the sense that it is often to a person to.
make it plain that he objects to contacts that most people find others, but there
must be limits on this: the passenger on the crowded underground train can
hardly be allowed to appropriate to himself a disproportionate share of the space
because he objects to being touched by others. In Wilson v. Pringle, however,
the Court of Appeal, while not rejecting what was said in Collins, laid down that a
battery involves a "hostile" touching. The actual decision was that the trial judge
had been wrong to grant summary judgment to the claimant under Order 14 of
the Rules of the Supreme Court (which was based upon there being no triable
defence to the claim) where the defendant, a schoolboy, had on his own
admission pulled the claimant's bag from his shoulder and thereby caused him to
fall to the ground and injure himself: such horseplay, it seems, may or may not be
battery, according to whether the tribunal of fact can discern the ingredient of
"hostility". However, since the court expressly said that hostility did not require ill-
will or malevolence, the requirement seems hardly to mean any more than that
the defendant has interfered in a way to which the claimant might object.
Perhaps the closest we can get to the central idea is to say that the interference
must be "offensive" in the sense that it infringes the claimant's right to be

72
physically inviolate, to be "let alone". To say, however, that there must be
something offensive to dignity seems to be going too far, at least if Nash v Sheen
is correctly decided: it was held to be battery where the claimant went for a
permanent wave and the defendant, without her consent, applied a tone rise
which produced a skin reaction. Even this rather vague formulation may not
cover every case: for cxnmple, indecent touching of a small child is clearly a
battery even though the child · may have insufficient understanding to "take
offence".

Whatever the theoretical basis of liability, we can say that touching another in the
course of conversation or to gain his attention is not a battery. Even some
persistence may be justifiable, for "the lost or distressed may surely be permitted
a second touch, or possibly even more on a reluctant or impervious sleeve or
shoulder, as may a person who is acting reasonably in the exercise of a duty. In
each case, the test must be whether the physical contact so persisted in has in
the circumstances gone beyond generally accepted standards of conduct." Into
the assessment of this must enter not only a limitation laid down by the claimant
but also the relationship (or lack of it) between the parties. An embrace of a
complete stranger may be a battery, an embrace in an attempt to settle a lovers
tiff may not be, even if the other has forbidden it.

ACTIVITY: Questions for discussion

1. Detail hostility as it applies to

Battery.

Topic 9: CONSENT AND BATTERY

Where there is consent to the contact there is no battery and the same is true
where the claimant, though not in fact consenting, so conducts himself as a lead
the defendant reasonably to believe that consent exists. Subject to lawful
authority, such as a power of arrest, an adult of full understanding has an
absolute right to the inviolability of his body and therefore has an absolute right to
choose whether or not to consent to medical treatment, even if the treatment is
necessary to save his life, or, in the case of a pregnant woman, the life of her
unborn child. Similarly, an adult of full capacity has the right to choose whether
to eat or not: "Even if the refusal is tantamount to suicide, as in the case of a
hunger strike, he cannot be compelled to eat or forcibly fed." The same seems to
be true even if the would-be suicide is a prisoner in lawful custody and the
practice of forcible feeding which was followed when suicide and attempted
suicide were crimes has ceased: imprisonment limits a person's autonomy but
does not deprive him of the power to choose to end his life. It must, however, be
emphasized that this position only prevails if the actor has the mental capacity to

73
come to a reasoned decision on the consequences of his act or refusal of
treatment; if that is not the case then it will be justifiable to act in the best
interests of the person involved. In principle, it is clear that the court must not
infer incapacity from the fact that the decision is «irrational" in the sense that it is
not one that would be marJe by the vast majority of sane adults, but the line
between competence and incompetence may be a fine one; in one case, for
example, a person was held to. be incompetent because "needle phobia"
prevented her submitting a surgery- which she wished to undergo. The fact that
force may be justified against a person who is incompetent may help to reconcile
the principle of personal autonomy with the practicalities of life in situations of
sudden emergency. If A is about to jump off a bridge and is dragged to safety,
despite his protests, by B, most people would probably think it strange that B
should be liable for battery: the answer probably is that in such a case B will be
justified in assuming that A is in a disturbed mental condition. If, however, there
is no reason to doubt the claimant's mental capacity (more likely in the case of
refusal of treatment or a hunger-strike) then the defendant cannot contend that
his well-meaning life..,saving acts should attract only nominal damages, for that
would be to make the principle of autonomy no more than symbolic. In Canada
damages of 20,000 dollars were awarded where the defendants ignored the
claimant's known religious objections to a blood transfusion.

ACTIVITY: Questions for discussion

1. A person who prevents someone who

wants to jump off a bridge to take his
own should not be held liable for
battery. Discuss.

Even where the claimant has the mental capacity to give a valid consent, any
consent must be given freely and not under threats or improper pressure or
undue influence. So submission for fear of something worse or by exhaustion
form constant pressure is not consent.

The Mental Health Act 1983 allows for the compulsory admission to hospital of a
person suffering from mental disorder who ought to be detained in his own
interests or for the protection of others and his consent to treatment may then be
dispensed with by the responsible medical officer. But this does not allow the
admission of a person whose thinking is unusual or even irrational and in any
event the treatment authoriz~d is only that which is for, or related to, the mental
disorder. Where a person is suffering from mental disorder and is incapable of
giving consent, treatment {even if unrelated to the disorder) may, however; be
justified at common law if it is in his best interests to give it. In the case of routine

74
 treatment or that which is clearly medically necessary to preserve life or health,
no reference to the court is necessary, but the court's approval should be sought
before sterilization.

A minor who has reached the age of 16 may give a valid consent to medical
treatment himself under section 8 of the Family Law Reform Act 1969 and he
may do so· at common law even below that age if he is capable of a full
understanding of the consequences. In these cases the child's power to consent
to treatment is concurrent with that of parents and a parental consent may render
lawful treatment to which the child objects, though no doctor can be compelled to
administer treatment and in deciding whether to not to do so he wilt be influenced
by the child's wishes. When the child has the capacity to give a valid consent
and does so, the parents' objection to the treatment will not invalidate the child's
consent. In all cases involving a minor the court has an inherent jurisdiction to
· override the child's objection to treatment or the child's consent to treatment. In
the case of young children the consent of the parents or guardian to medical
treatment which is reasonably necessary or to procedures which, though not
therapeutic, are generally acceptable, constitutes a valid consent on behalf of the
child.

A person may be perfectly competent but be rendered temporarily incompetent,

for example where he is in a coma as a result of an injury. ln such a case
urgently necessary medical treatment may be justified on the basis of necessity,
which seems preferable to the alternative basis of implied consent. But even in
these cases treatment will be unlawful if it is known (for example from prior
directions) that the patient would object to it in the circumstances which now
prevail.

ACTIVITY: Questions for discussion

1. Discuss in detail the concept of consent with

reference to battery.
2. Compare the Mental Health Act of 1983 and
the Family Law Reform Act of 1969.

75
 UNITY
FALSE IMPRISONMENT

Topic 1: FALSE IMPRISONMENT

This is the infliction of unauthorized bodily restraint without lawful justification. It
is not necessarily a mater of bars and bolts, but any of unlawful restraint might
turn out to be fa1se imprisonment The imprisonment must be total, and if certain
.ways of exit are barred to a prisoner, but he is free to go off in another way, than
there is no false imprisonment. If a person is on premises and is not given
facilities to leave, this does not constitute false imprisonment unless the refusal is
merely the insistence on a reasonable condition. It is not even essential that the
claimant should be aware of the fact of his imprisonment, provided it is a fact.
Valenti non fit injuria is a defence to false imprisonment, as where a prison visitor
agrees to be locked in a cell with the prisoner.

It should be noted that a defendant will not be liable for false imprisonment where
he merely gives information to the prosecution which affects the claimant's arrest
and detention. Thus a store detective who incorrectly informed police officers
that the claimant had been shoplifting was not liable for false imprisonment
. where the police had at their discretion arrested and detained the claimant (see
Davidson v Chief Constable of the North Wales Police and Another, The Times,
26 April, 1993.

ACTIVITY: Questions for discussion - TRUE OR FALSE

1. Not giving money to a relative to go to the village to see a sick

mother constitutes false imprisonment.
2. Mention several instances of false imprisonment in Zambia.

ARREST AND THE TORT OF TRESPASS TO THE PERSON

An arrest or other restraint of a person, as by stopping and searching him, will be

unlawful and actionable as a trespass in civil war unless the following
requirements are met.

76
 ACTIVITY 1: Questions for discussion

1. Elaborate on certain defences to an action bought for

assault/battery.

2. TRUE OR FALSE
(a) A lot of force should be applied during self~defence.
(b) Toe children and Young Persons Act 1933 out laws
the use of belts, canes/shippers on children.
(c) In trespass of the claimant's cause is intentional the
claimants only cause of action lies in negligence.
(d) Step fathers have no moral obligation to protect
step children.

Topic 2: ARRESTABLE OFFENCES

The basic rule is that offences are arrestable if they carry a sentence of five
years or more (PACE. s 24(1} Cb)) or are offences for which the sentence is fixed by
law, e.g. murder {PACE s 24 (1) (a)).

A private person may arrest without a warrant anyone who is, or whom he, with
reasonable cause, suspects to be, in the act of committing an arrestable offence
(PACE, s 24(4)). Where arrestable offence has been committed, any person
may arrest without warrant anyone who is or whom he, with reasonable cause,
suspects to be, guilty of the offence (PACE, s (24)(5)).

A police constable is protected in respect of arrests made under the authority of a

warrant. He may arrest without a warrant in the situations mentioned above.
Furthermore, he may arrest someone who is or is suspected, on reasonable
grounds, to be about to commit an arrestable offence, and someone whom he
suspects, on reasonable grounds, to be guilty of an arrestable offence even
though the offence has not been committed (PACE, s 24(7)).

Topic 3: GENERAL POWERS OF ARREST

Section 25 of PACE gives the police a new general power of arrest for any
offence if certain circumstances apply, as where the person arrested will not give
his name and address, or the policeman thinks he has given a false one, or to
prevent physical harm and damage to property or obstruction of the highway or
to protect a child or other vulnerable person.

Section 28 of PACE requires that the person arrested should be told that the time
of the arrest or as soon as practicable thereafter that he is under arrest and the

77
grounds therefore, even if it is obvious, as where a thief is apprehended in the
act of theft. However, an arrest made without these formalities is not unlawful if
the arresting officer cannot comply with them because of the condition or
behaviour of the person arrested, as where there is a struggle with police and it is
impossible to inform him (see OPP v Hawkins (1988)3 ALL ER 673).

Since the arrest is a continuing act, an arrest which is made without reasons
becomes lawful if reasons are given later, e.g. at the police station as in Lewis v
Chief Constable of the South Wales Constabulary (1991) 1 ALL ER 206).

Under s 32 of PACE a person arrested rnay be searched for a weapon or

evidence relating to the alleged offence. The power of search extends to any
premises on which the arrest took place.

ACTIVITY 2: Question for discussion

1. Exemplify arrestable offence.

Topic 4: POWERS TO STOP AND SEARCH

In addition, s 1 ot PACE gives the police power to stop and search persons. The
Act gives the police the power to search any person or vehicle found in a public
place for stolen or prohibited articles, e.g. gun, and to detain a person or vehicle
for the purpose of such search. A person can be ordered to stop for the purpose
of such a search and any stolen or prohibited article found in the course of the
search may be seized. The statutory powers to stop and search are supported
by a code of practice, a revised version of which took effect from 1 March 1999.
Its provisions in terms of its details are unlikely to be the subject of an
examination question and so are considered further.

The matter of cautioning on arrest and procedure to be followed before the

person arrested reaches court have already been considered (see Chapter 4).

ACTIVITY 2: Questions for discussion - TRUE OR FALSE

l. An arrest made without an explanation is unlawful.

2. Cite the circumstances where the general powers of arrest
apply.
3. Cite the circumstances (w:1:h examples) where the police may
stop and search a person.

78
Topic 5: REMEDIES AVAILABLE AGAINST FALSE IMPRISONMENT
The remedies available against false imprisonment are self-help, Le_ breaking
away, the writ of habeas corpus and an action for damages_ This prerogative
writ of habeas corpus is designed to provide a person, who is kept in
confinement without legat justification, with a means of obtaining his release. If
he can show a prima facte case that he might be unlawfully detained, he {or often
a friend or relative) will apply to the Queen's Bench Division, though application
may be made to any judge of the High Court during vacation times. The person
detained applies, through counsel, for the writ to be issued, the facts alleging
unlawful detention being set out on an affidavit supporting the application_ If the
writ is issued, the effect is to cause the aneged captor to "bring the body" of the
prisoner before the court which will then decide on the merits of the case whether
there are legal grounds for detention of the prisoner. If not, he is set free by the
court. The civil procedure reforms introducing tracking arrangements have no
relevance to these applications.

ACTIVITY 4: Questions for discussion

1. Mention five circumstances which are

remedies against false
imprisonment.

Topic 6: TRESPASS TO LAND

Trespass to land is interference with the possession of land. it is not enough that
the claimant is the owner; he must also have possession. So where land is
leased for a term of years, the lessee is the person entitled to sue in trespass,
though the lessor may bring an action if the damage is such as to affect his
reversion when the lease ends. However, when a person signs a contract for the
purchase of land, he becomes entitled to possession of it, and if a trespass takes
place before he actually takes possession, then he can sue in respect of that
trespass when he does. His right to sue relates back to the date on which he
became entitled to the land under the contract.

In Manchester Airport plc v Dutton ( 1999) 3 WLR 524 the Court of Appeal
appears to have rewritten the common law when it ruled that a mere licencee
who was not in occupation was entitled to a possession order against a
trespasser. There was no need, said the court, for the claimant to have a
freehold or lease. tt appeared that the claimant wanted another runway and that
this involved felling or lopping trees in a wood owned by the National Trust. The
defendants set up camps and tree houses to prevent this and the airport

79
 ,/\;,t''.{!~'

authority obtained a possession order against them. The House of Lords refused
an appeal.

Interference with the possession of land may take many forms but it must be
direct. For example, an unauthorized entry on land is a trespass. lt is trespass
to place things on land, e.g. leaving a dead cat in a neighbour's garden. To
remain on land after one's authority is terminated constitutes a trespass. So, if a
a
friend invites you into his house for meat, tires of your company and asks you
to leave, then if you refuse you are a trespasser. If you abuse the purpose for
which you are allowed to be on land, you become a trespasser. In Hickman v
Maisey (1900) 1 QB 752, where the highway was used for making notes of the
form of racehorses being tried out on adjoining land, this constituted a trespass,
since the proper use of a highway is for passing and re-passing.

· While trespass usually takes place above the surface, it may be underneath by
means of tunneling or mining. With regard to trespass in the airspace above
land, the position is doubtful, since there is no good authority. It is probably only
a trespass if it either within the area of ordinary user, or it involves danger or
inconvenience.

ACTIVITY: Question for discussion

1. Exemplify the several circumstances

Involving trespassing.

RELATIONSHIP TO CRIMINAL PROCEEDINGS

Assault and battery are crimes as welt as torts and the Offences Against the
Person Act 1861 makes criminal proceedings in certain circumstances a bar to
any subsequent civil proceedings. By sections 42 to 45, where a person is
prosecuted before a court of summary jurisdiction and after a hearing on the
merits, either the summon is dismissed and a certificate of dismissal is granted
by the magistrates or he is convicted and has served his imprisonment or paid
the whole amount awarded against him, no further proceedings, civil or criminal,
for the same cause, shall lie at the instance of any against that person. The Acts
is only a defence ( 1) if the proceedings are instituted by or on behalf of the party
aggrieved, and not by someone else (2) if the summon is dismissed on the
merits of the case and not for some technical defect or (3) if the proceedings are
summary and not by way of indictment. The Acts does not prevent proceedings
against anyone other than the defendant, so· that the conviction of an employee
for an assault committed in the course of his employment is nor bar to an action
against his employer. Quite apart from the statutory provision there is a common
law principle, founded upon public policy, whereby a person wm not be allowed,
in a civil action, to amount a collateral attack upon the final decision of a criminal

80
court of competent jurisdiction. Thus, where at his trial X contended that his
confession was involuntary because he had been beaten up by Y, but the trial
judge found that it was voluntary, X's subsequent attempt to being an action for
battery against Y was dismissed as an abuse of the process of the court.
However, this principle would not prevent the commencement of a civil action
because the defendant had been acquitted in the criminal court: apart altogether
from any substantive differences between the statutory crime and the tort, the
standards of proof are different and a verdict of acquittal in the criminal case is
quite consistent with a finding of liability in the civil action. Nor does a conviction
prevent the defendant from contesting liability in a case where a civil can be
brought against him. That would be inconsistent with section 11 of the civil
proceedings, prima facie but not conclusive evidence that the defendant
committed the offence.

·FALSE IMPRISONMENT
This is the infliction of the body restraint which is not expressly or implicitly by the
law.

Both "false" and "Imprisonment" are somewhat misleading terms. "False" does
not here necessarily signify "mendacious" or Fallacious", but is used in the less
common sense of "erroneous" or "wrong". And it is quite possible to commit the
tort without "imprisonmene of a person in the common acceptation of that term.
In fact neither physical contact nor anything resembling a prison is necessary. If
a lecturer locks his class in the lecture-room after the usual time for dismissal has
arrived, that is false imprisonment, so, too, it a person be restrained from leaving
his own house or any part of it, or be forcibly detained in the public streets.
"Imprisonment", says the old Termes de la Lay: is the restraint of a man's liberty
whether it be in the open field, or in the stocks or cage in the street1 or in man's
own house, as wen as in the common goat. And in all these places the party so
restrained is said to be a prisoner, so long as he hath not his liberty freely to go
at all times to all places whither he will, without bail or main·prize. This definition
(with due elimination of the archaisms in it) was accepted by the Court of Appear
in Meering v Grahame-White Aviation Co. Ud.

There is no false imprisonment where the claimant consents to the defendant's

order, but he is not being taken as consenting simply because he does not resist
by force. A difficult line must be drawn between consent on the one hand and
peaceful but unwilling submission to express or implied threats of force or
asserted legal authority (whether valid ot not) on the other.

ACTIVITY Questions for discussion

1. Critique the Civil Evidence Act of 1968

2. Define the following terms:
(a) False
(b) Imprisonment

81
 ,·;>,,,..;,J;$r:x

TOPIC 8: KNOWLEDGE OF CLAIMANT

It had been held in Grainger v. Hill that imprisonment is possible even if the
claimant 1s too ill to move in the absence of any restraint. ln Meering's case the
court went much further by holding that the tort is committed even if the claimant
did not know that he was being detained. The facts were that the claimant, being
suspected of stealing a keg of varnish from the defendants, his employers, was
asked by two of their police to go with them to the company's office. He
assented and at his suggestion they took a short cut there. On arrival he was
taken or invited to go to the waiting room, the two policemen remaining in the
neighborhood. In an action for false imprisonment the defence was that the
claimant was perfectly free to go where he liked, that he knew it and that he dit'.2
not desire to go away. But it was held by a majority of the Court of Appeal that
the defendant was liable because the claimant from the moment that he came
under the influence of the police was no longer a free man. Atkin L J. said "it
· appears to me that a person can be imprisoned white he is asleep, while he is in
a state of drunkenness, while he is unconscious and while he is a lunatic. Of
course the damages might be conscious of it or not". The learned Lord Justice's
ground for this opinion was that, although a person might not know he was
imprisoned, his captors might be boasting elsewhere that he was. This point
might be regarded as more relevant to defamation than to false imprisonment,
but Atkin L.J's view has been approved, obiter, by the House of lords in an
appeal from Northern Ireland, Murray v Ministry of Defence though with the rider
that a person who is unaware that he has been falsely imprisoned and has
suffered no harm can nonnally expects to recover no more than nominal
damages. The basis of the law as stated in Meering and Murray is doubt that
personal liberty is supremely important so that interference with it must be
detained even where there in no consciousness nor harm. There must, however,
be a detention. A patient who is in a coma after an accident is not "detained" by
the hospital. A more difficult case is R v Bourewood etc. NHS Trust, where a
patient who because of menta1 disorder lacked the capacity to consent or to
object was admitted as a "voluntary" patient. In fact the court held that the
hospital's actions were justified at common law by necessity but the majority
were of the view that he was not "detained" by being kept in an unlocked ward,
even though he was sedated and closely supervised and if he had attempted to
leave the hospital would have considered his compulsory detention under the
Mental Health Act..

ACTIVITY: Questions for discussion

1. Outline the various scenarios which amount to

false imprisonment

82
TOPIC 9! RESTRAINT MUST BE COMPLETE
The tort is not committed unless motion be restrained in every direction. ln Bird
v. Jones the defendant wrongfully enclosed part of the public footway on
Hammersmith Bridge, put seats in it for the use of spectators of a regatta on the
river and charged for admission to the enclosure. The claimant insisted on
passing along this part of the footpath and climbed over the fence of the
enclosure without paying the charge.. The defendants refused to let him go
forward, but he was told that he might go back into the carriage way and cross to
the other side of the bridge if he wished. He declined to do so and remained in
the enclosure for an hour. The defendants were held not to have committed
false imprisonment. What win amount to a complete restraint must be a question
of degree. The person would plainly be imprisoned if locked inside a large
building, even though he had full freedom to room around inside it and it has
been suggested that unlawful conscription is theoretically capable of being false
imprisonment. But it seems unlikely that an action for false imprisonment would
lie if, for example, the claimant was wrongfully prevented from leaving this
country. If, however, there is a total restraint upon the claimant's Hberty, that is
false imprisonment even though it lets for only a brief period of time. This means
that many acts which are "primarily" battery may also involve false imprisonment,
as where C is raped by D.

ACTIVITY: Questions for discussion

1. Reflect on the statement that restraint

must be complete to amount to false
imprisonment.

TOPIC 10: MEANS OF ESCAPE

If a person has the means of escape, but does not know it, it is submitted that his
detention is nevertheless false imprisonment unless any reasonable man would
have realized that he had an available outlet. Thus, if I pretend to turn the key of
the door of a room in which you are and take away the key, it would seem
unreasonable if you made no attempt to see whether the door was in fact locked.
A more difficult case is that in which you have a duplicate key in your pocket but
have forgotten its existence. A reasonable person may suffer from a lapse of
memory.

DEFENCES
Most of the defences depend upon conditions which in general negate liability in
tort. Some particular cases may be mentioned here. It must be emphasized that
these matters are defences in the true sense, that is to say, it is for the defendant

83
to rise and to establish them: it is for an officer who effects an arrest to show that
he had lawful authority to do so, not for the claimant to show that he did not and
the claimant certainly does not have to prove negligence or malice, the question
is whether the detention was justified or not. In R. v. Governor of Brockhill
Prison, ex parte Evans (No. 2) the claimant was released from prison by habeas
corpus when a decision of calculation of the Divisional Court disapproved earlier
cases dealing with the method of the release date for prisoners with concurrent
sentences and he recovered £5,000 damages for the 59 days he had spent in
prison after his proper release date. This was despite the fact that before the
new ruling was given the prison governor would plainly have had no authority to
release him. The governor was acting in accordance with the law as it was them
perceived to be, but the general rule of the law is that decisions which are
overruled are regarded as never having had legal force, subject to any issue
being res judiata between parties who have previously litigated the issue.
However, in some situations a person may be justified in acting on facts as he
reasonably believes them to be: a power of arrest which depended upon the
arrested person being guilty of the offence would be a very risky thing to exercise
and the law therefore generally provides that there may be an arrest on
reasonable suspicion. What is rather curious about the Evans decision is that an
arresting officer may also treat more favorably if he acts on what turns out with
hindsight to be an erroneous view of the law. In percy v. Hall an action for false
imprisonment failed where the claimant was arrested under a bye-law which was
subsequently held to be invalid. So on facts like Evans, if the claimant had
escaped after the expiry of his proper sentence and had been arrested before the
decision of the Divisional Court and had then, after that decision, sued the
arresters, they might have had a defence whereas the prison governor would not.

Topic 11: REASONABLE CONDITION

It is a tort to prevent a person from leaving your premises because he will not
fulfi II a reasonable condition subject to which he entered them. In Robinson v.
Ba/main Ferry Co. Ud the claimant paid a penny for entry to the defendants'
wharf from which he proposed to cross the river by one of the defendants' ferry-
boats. A boat had just gone and as there was not another for 20 minutes, the
claimant wished to leave the wharf and was directed to turnstile which was its
exit. There he refused to pay another penny which was chargeable for exit, as it
was stated on a notice-board and the defendant declined to let him leave the
wharf unless he did pay. The judicial Committee held that this was not false
imprisonment. "There is no law requiring the defendants to make the exit from
their premises gratuitous to people who come there upon a definite contract
which involves their leaving the wharf by another way ... The question whether the
notice which was affixed to these premises was brought home to the knowledge
of the plaintiff is immaterial, because the notice itseff is immaterial" And the court
regarded the charge of a penny for exit as reasonable. It must be stressed that it
was crucial to the decision in this case that the claimant had contracted to leave
the wharf by a different route. Nonetheless, the decision is a strong one because

84
it amounts, in effect, to recognizing extra-judicial imprisonment as a method of
enforcing contractual rights.

A similar case, but one containing a further difficulty, is Herd v. Weardlae, etc, C.
Ltd A miner, in breach of his contract of employment with the defendants'
refused to do certain work aHocated to him tn the mine, and demanded to be
taken to the surface by the lift five hours before his shift expired. He was not
allowed to leave for 20 minutes. The essential difference between this case and
Robinson's was that the conduct of the defendants was an omission rather than
a positive act of restraint Since false imprisonment is a form of trespass it might
have been held that this was a sufficient answer to the claim. Nevertheless, the
decision in favor of the defendants turned on the fact that the miner himsetf was
in breach of contract and had no right to demand to be brought up before the end
of his shift. Had the shift come to an end and the employers had refused to
· operate the machinery, it seems that would have been false imprisonment by
them, as well as a breach of contract. This is surely correct: a gaoler who
refuses to open the cell door at the end of a prisoner's sentence is liable for false
imprisonment, whether or not such conduct might amount to the tort of
misfeasance in a public office.

ACTIVITY: Questions for diSCUS$iOn

1. Define and apply the term extra-judicial

imprisonment. ·
2. In which circumstances can a lawful arrest
constitute false imprisonment?

Topic 12: IMPRISONMENT AND ARREST

By section 12 ( 1) of the Prison Act 1952» a prisoner, whether sentenced to
imprisonment or committed to prison on remand pending trial", is lawfully
confined in the prison, so that there is no action for false imprisonment against
the prison governor or any prison officer acting under his authority. However, tt
would not be quite right to say that the law of false imprisonment is inoperative
within a prison: the prisoner coutd, for example, bring such a claim against a
fellow prisoner who locked him in a shed (or even an individual prison officer in
his cell without authority). Nor is there false imprisonment where a prisoner is
kept in intolerable conditions. The proper remedy at common law is by way of
judicial review or, if harm is suffered, by ·an action for negligence. It may also
amount to inhuman or degrading treatment contrary to Article 3 of the European
Convention on Human Rights, for which damages wilt be available under the
Human Rights Act 1998.

85
A lawful arrest is, of course, no false imprisonment and it follows that a person
who arrests another in pursuance of a valid warrant cannot be sued. If an arrest
is authorized, it does not become unauthorized because excessive force is used
in effecting it (though an action for battery would lie). The law concerning arrest
without warrant is mainly contained 1n the Police and Criminal Evidence Act
1984. Only an outline is given here and more detail must be sought in books on
constitutional law or civil liberties.

First, the common law gives the police no power to detain for questioning or to
detain otherwise than by way of arrest, but section 1 (2) of the 1984 Act gives a
potice officer power to stop and search any person or vehicle for stolen or
prohibited goods if he has reasonable grounds to believe that such goods will be
found. As to arrest, the "core" provision is section 24, which is a modified form of
the law previously contained in the Criminal Law Act 1967. Before that Act, the
law of arrest turned on the now defunct distinction between fetonie and
misdemeanors. An arrest may be made without a warrant for an "arrestable"
offence which means { 1) offences for which the sentence is fixed by law (2) those
for which a person may on a first conviction be sentenced to imprisonment for
five years or more and (3) offences specifically listed in section 24 (2) of the Act,
for example offences under the customs excise legislation taking a motor vehicle
without authority. In addition, the power to arrest applies to attempts and
conspiracies in relation, to such offences and to the inciting, abetting or procuring
of them. A fundamental distinction is drawn between the powers of private
citizens and the wider powers granted to police officers. Anyone (including, of
course a police officer) may arrest without warrant anyone· who is in the act of
committing an arrestable offence or anyone whom he has reasonable grounds
for suspecting to be committing such an offence. This power does not allow
arrest where the offence has been completed, but under section 24 (5), where
arrestable .offences has been committed, any person may arrest without warrant
anyone who is guilty of the offence or anyone whom he has reasonable grounds
for suspecting to be guilty of 1t. In other words where the offence has been
committed there may be a defence even if the arrester "gets the wrong man".
The powers of a police officer are, however, wider in two respects. First, he may
arrest without warrant anyone whom he suspects on reasonable grounds to have
committed an offence even though the offence has not in fact been committed.
Secondly, police officer may arrest without warrant anyone who is or whom he
has reasonable grounds for suspecting to be about to commit an arrestable
offence.

A further provision, which largely though not entirety replaced numerous statutory
powers of arrest, gives a police office, who has reasonable grounds for
suspecting that a non-arrestable offence has been committed or is being
committed or attempted, power to arrest the .suspected person if it appears to
him that servtce of a summons is impracticable or inappropriate because any of
the "general arrest conditions" is satisfied. These conditions cover various

86
circumstances such as where the suspected person's name or address for
service is unknown (or the officer reasonably doubts whether the name and
address given is the real one) or there are reasonable grounds for believing that
he will cause injury or damage.

In addit1on to these powers ~nder the 1984 Act any person may use such force
including detention, as is reasonable in the circumstances in the prevention of
crime, or in effecting or assisting in the lawful arrest of offenders, suspected
offenders or persons unlawfully at large and there still exists a common law
power to arrest to prevent an imminent breach of the peace by the person
arrested. Although it has been held that this power complies with Article 5 of the
European Convention on Human Rights, the uncertainty of the concept of breach
of the peace still provides potential for raising Convention issues.

The burden of proof of justifying an arrest is upon the person affecting it and if he
fails to do so he is liable for false imprisonment and, where there has been
threatened or actual use of force, no matter how minor, for assault or battery as
well. Unless it can be shown that the claimant was guilty of the offence or was
about to commit it, the power of arrest depends on reasonable grounds suspicion
and in this connection it is obviously necessary first to establish that the arrester
actually did suspect the claimant but there must also be an objective basis for
that state of mind. Reasonable suspicion is less than prima facie proof, if only
because the latter must be based on admissible evidence, whereas suspicion
can take into account other matters as well and Lord Devlin said that: "suspicion
in its ordinary meaning is a state of conjecture or surmise where proof is lacking.
I suspect but I cannot prove. Suspicion arises at or near the starting point of an
investigation of which the obtaining of prima facie proof is at the end. Though in
no way binding on the courts, the Code of Practice promulgated for the purposes
of section 1 (2} of the Police Criminal Evidence Act 1984 draws a distinction
between "mere suspicion", which is "a hunch or instinct which cannot be
explained or justified to any objective observer" and "reasonable suspicion" with
some "concrete basis ... related to the individual person concerned, which can be
considered or evaluated by an objective third person'. According to the Code
reasonable suspicion cannot be supported simply on the basis of a "higher than
average chance that the person has committed ... an offence, for example
because he belongs to a group within which offenders of a certain kind is
relatively common". In Dallison v. Caffery where a theft had undoubtedly been
committed, the defendant police officer had received trustworthy information that
the claimant had been identified as the man responsible and it was held that
therefore the arrest was justified. In Hogg v. .Ward, on the other hand, a police
constable was held liable for arresting the claimant on a mistaken charge of theft
made by the owner of some harness because the constable ought to have
known, from the claimant's open use of the property and his immediate
statement of facts which raised a reasonable inference that he had acquired it
honestly, .that arrest was not justifiable in the circumstances.

87
 ,,',;,'.ia.,jjf§/ '"""''"'

The plain meaning of the statute requires that the arresting officer should be in
possession of information which gives him reasonable cause to suspect the
claimant and it is not enough that such information is in the possession of
another officer who gives an order to arrest which the defendant officer obeys.
Whether or not this is necessarily realistic in modem conditions, the statute is
founded "on the longstanding constitutional theory of the independence and
accountability of the individual o~cer.

ACTIVITY: Questions for discussion

1. Elaborate on the Criminal Evidence Act

1984.

Since the arresting officer has discretion he must exercise it in good faith and
without taking into account irrelevant matter. Reasonable suspicion is a
condition precedent of the rightfulness of an arrest, but it is not conclusive.
However, in Mohammed-Holgate v. Duke it was held that the constable's belief
that the claimant would be more likely to confess by being questioned at the
police station was a legitimate reason for exercising the discretion to arrest and
did not render the arrest unlawful.

The fact that the claimant has pleaded guilty to or has been convicted of the
offence for which he was arrested is not of itself sufficient to strike out a claim for
false imprisonment, notwithstanding the principle that it is an abuse to process to
seek to challenge by civil action the final decision of a competent criminal court,
for an arrest may be wrongful notwithstanding the guilt of the accused.

TOPIC 13: INFORMATION OF CHARGE

It was established at common law in Christe v. Leachinsky that in ordinary
circumstances a person arrested must be informed of the ground on which he is
arrested: the officer is not entitled to remain silent or to fabricate a "holding
charge". The law is now to be found in section 28 of the Police Criminal
Evidence Act. 1984 and the position with regard to arrest by a police is as follows:
where a person is arrested otherwise than by being informed that he is under
arrest (for ·example, where he is physically seized) he must as soon as
practicable be informed that he is under arrest even if the fact is obvious. The
only qualification to these duties is that they do not apply if it was not reasonably
prf!cticable for the information to be given because the claimant escaped from
custody before it could be given. It has been held that an arrest is a continuing
state of affairs so that if the information is not given promptly but is given at a
later stage the arrest becomes lawful from that point, which may affect. the
quantum of damages. Where the arrest is by a private individual he does not

88
have to inform the claimant of the fact of the arrest or of the ground where it is
obvious. As to what is required by way of information, the cases before the Act.
will no doubt be of persuasive value: technical or precise language need not be
used but sufficient detail should be given to enable to understand the factual as
well as the legal nature of what he is accused of, so that, for example, "you are
under arrest for burglary" is ,risufficient without information of when and where.

ACTIVITY: Questions for discussion

(1) Differentiate the circumstances in which an arrest can

be made without reasons given for the arrest.
(2) Compare and contrast the European Convention of
Human on Human Rights and the Zambian one.

Topic 14: THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Article 5 (1) of the Convention provides that everyone has "the right to liberty and
security of person". This right probably nothing to the common law wring of false
imprisonment but where the detention is by the police it will no doubt become
common form to add a claim under the Human Rights Act 1998. Article 5 goes
on to provide an exhaustive list of circumstances in which deprivation of liberty is
justified and these include "the 18\Nful arrest or detention of a person effected for
the purpose of bringing him before the competent legal authority on reasonable
suspicion of having committed an offence or when it is reasonable considered
necessary to prevent his committing an offence or fleeing after having done so".
Since this makes no reference to the gravity of the offence the provision of the
Police Criminal Evidence Act 1984 relating to arrestable offences are among
more stringent than the Convention.

Detention is aHowed by the Convention on certain grounds which are unknown to

English law, e.g. of alcoholics and vagrants. Article 5 (2) provides that ueveryone
who is arrested shall be informed promptly, in a language which he understands,
of the reasons for his arrest and of any charge against him". Again, the
provisions of the Police and Criminal Evidence Act seem more stringent since
"promptly" probably allows greater latitude than "as soon as practicable".

Where the arrest is by a private individual the arrested person must be taken
before a magistrate or a police officer, not necessarily forthwith, but as soon as is
reasonably possible. For example, a person arrested in the street by a store
detective on suspicion of shoplifting may be taken back to the store while the
matter is reported to the store manager and may be detained there while the

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 '";'.'/;<:'!(
,,,;;?fif2

police are ~nt for. It is unlikely that he would be allowed to take the suspect to
the suspect's house to see whether any of the stolen property is there, though it
<;i'!!as
,,..-;
..
held that a police officer could do so.

The position after a police arrest was radically modified by the Police Criminal
Evidence Act 1984. By ~ection 30 a person arrested otherwise than at a police
station must be taken to a police station as soon as possible after his arrest,
unless his presence elsewhere is necessary in order to carry out such
investigations as it is reasonable to carry out immediately. The time for which the
conditions in which he may be held are then governed by Part IV of the Act and
since section 34(1) provides that a person "shall not be kept in police detention
"except in accordance with Part IV a contravention this creates a case of false
imprisonment. These provisions are much too detailed to examine here but very
broadly the position is that there must be periodic reviews of the detention by the
police and with the authority of a senior office the detainee may be held for up to
36 hours without charge. Thereafter the authority of a magistrates' court is
required for further detention without charge up to 96 hours. After that period the
suspect must either be released or charged and brought before a magistrates'
court as soon as possible.

Various matters ancillary to detention are dealt with in Part V. Contravention of

the provisions on search and fingerprinting will presumably lead to liability for
battery but will not render the detention unlawful, but it is by no means clear that
there is any civil sanction attached to the provisions dealing with suspect's right
to have someone informed of his arrest or access to legal advice.

Awards of damages for false imprisonment by the police being very substantial
even without the addition of aggravated or exemplary damages. Where the
unlawful detention is continuing the claimant may seek a writ of habeas corpus:
this is not often used but it has certainly not fallen into disuse. A person who is
unlawfully detained may use self-help to escape, including reasonable force
though this is a risky course since the power of arrest is likely to depend not only
upon the commission of an offence but, in the alternative, upon a reasonable
suspicion thereof. Hence, even an innocent person who forcibly resists arrest
may be liable in tort for battery if the arrester had reasonable grounds for his
suspicion.

ACTIVITY: Questions for discussion

1. Comment on the statement that " a person

who is unlawfully detained may use self-help
to escape"

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TOPIC 15: DISTINCTION FROM ABUSE OF PROCEDURE
A defendant may be liable for false imprisonment even though he did not
personalty detain the claimant, so long as he acted through an intermediary who
exercised no independent discretion of his own. In Austin v Dowling a police
inspector refused to take the responsibility of arresting B on a charge made by A,
but finally did arrest B when A signed the charge sheet. It was held that A could
be liable for false imprisonment. There can, however, be no false imprisonment if
discretion is interposed between the defendant's act and the claimant's
detention. If, for example, A makes a charge against B before a magistrate and
the magistrate then decides to order the arrest of B, A has set in motion not a
ministerial but judicial officer exercising a discretion of his own and A cannot be
liable for false imprisonment. In modem conditions it is almost inevitable that
where the police arrest on the basis of information or complaint they will be held
to exercising an independent discretion. The liability of an informant for abuse of
legal procedure is an entirely different matter which is considered in detail in a
later chapter. For the present it is sufficient to note that whereas in false
imprisonment the claimant need prove no more than his detention, leaving it to
the defendant to prove its lawfulness if he can, in malicious prosecution, the best
known form of abuse of procedure, the c\aimant must prove that the defendant
{1) instituted a prosecution of him which (2) ended in his favour and (3) was
instituted without reasonable and probable cause and (4) was malicious. It is
true that claimant may still succeed in the absence of both (1) and (2) if he was
actually arrested but he must still prove as distinct matters both absence of
reasonable and probable cause and also malice.

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