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This Booklet deals with the law of torts in Kenya.
Concepts include:
vicarious liability, occupier's liability and strict liability,
Defences including:
consent, mistake, necessity, contributory negligence etc.
Specific torts of:
Trespass, negligence, false imprisonment
and the remedies available for breaches.
This Booklet deals with the law of torts in Kenya.
Concepts include:
vicarious liability, occupier's liability and strict liability,
Defences including:
consent, mistake, necessity, contributory negligence etc.
Specific torts of:
Trespass, negligence, false imprisonment
and the remedies available for breaches.
This Booklet deals with the law of torts in Kenya.
Concepts include:
vicarious liability, occupier's liability and strict liability,
Defences including:
consent, mistake, necessity, contributory negligence etc.
Specific torts of:
Trespass, negligence, false imprisonment
and the remedies available for breaches.
A Brief Outline of the Law of Tort in Kenya By Charles Mwaura Kamau LLB (Hons) Advocate High Court of Kenya mwaurack@gmail.com A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Purposes of tort law: (1) to provide a peaceful means for adjusting the rights of parties who might otherwise take the law into their own hands; (2) to deter wrongful action; (3) to encourage socially responsible behavior; and, (4) to restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury. Tort embraces subjects such as: Negligence Nuisance Defamation; either Libel (written) or Slander (spoken) Trespass which can be: to land (i.e. entering on someones land without permission): to the person (i.e. assault, battery or false imprisonment), or to goods (i.e. conversion, detention). Law of Torts
There are two types of civil wrongs, and we looked at the first of these - i.e. those arising from a breach of contract. The second type of civil wrong arises from the breach of a duty fixed by law, and owed to people generally and is called a Tort. Like a breach of contract, the breach of a legal duty is remedied by a civil action. The damages sought would be unliquidated damages, i.e. damages, the amount of which would be fixed by the court (in court proceedings this is called an Unspecified amount claim). The word Tort is an unusual one and conveys little meaning to the layperson. It has two root sources. One is from Norman French, meaning wrong, which in turn springs from the Latin Tortus meaning twisted or wrung. A Tort signifies a wrong recognised by law. It can be differentiated from a crime (which is also a wrong in law) as follows: The booklet will introduce you to: the nature of tortuous liability
The general defences available to a claim in Tort (i.e. those defences which will completely defeat such a claim)
The persons who can sue and be sued in Tort, including: Vicarious liability and Occupiers Liability.
specific torts, i.e. Negligence, Nuisance (both Public and Private), Trespass etc
The remedies that are available if successful. Schools of thought General principle of liability theory A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
This school of thought argues that all harm should be actionable in the absence of just cause or excuse. NOTE Under this theory the law of tort would be forever growing and no cause of action should be refused because it is new or novel. Closed Law of Torts theory The theory argues that the law should be a law of specific, existing, torts (e.g. negligence, etc.), and that no new torts should be created by the Courts - only by statute. The basic pattern of Tort
As a general principle, a claimant will only succeed in tort if he can prove: (a) That the defendant has infringed his legal rights (i.e. has committed a tort), and (b) As a result he has suffered damage. The paradigm tort consists of an act or omission by the defendant which causes damage to the claimant. The damage must be caused by the fault of the defendant and must be a kind of harm recognised as attracting legal liability. This model can be represented: act (or omission) + causation + fault + protected interest + damage = liability. Example: A drives his car carelessly with the result that B is injured and sustains personal injuries. The act is A driving the vehicle. This act has caused damage to B. The damage was as a result of As carelessness, i.e. his fault. The injury suffered by B, personal injury, is recognised by law as attracting liability. A will be liable to B in the tort of negligence and B will be able to recover damages. For a successful system of Tort law to exist, it is necessary to have a functioning insurance system. Insurance companies are effectively the paymasters. Only a very small per cent of all tort claims made go to court and far fewer go on appeal and appear in the law reports. Thus, most of the rules of law stated in law text- book s may bear little resemblance to the practice of tort law, particularly in the area of personal injuries. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
In tort, it is usually necessary for a claimant to establish both act or omission and damages to be able to succeed. Exceptions There are certain torts which do not require fault. These are known as torts of strict liability. Under strict liability one has a duty not to injure. It does not matter whether the injury is caused negligently or not, whichever way you cause injury you will be liable. In some cases the act or omission of the defendant may have caused damage to the claimant but the claimant may have no action as the interest affected may not be one protected by law. This is known as damnum sine injuria or harm without legal wrong. Say for example A opens a shop that sells the same goods as B in the same street, and then A reduces the price of his goods in order to drive B out of business. B will have no legal recourse. Even though he has caused damage to Bs business, such interest may not be protected by law. There are also cases where conduct is actionable even though no damage has been caused. This is known as injuria sine damn and where a tort is actionable without proof of damage it is said to be actionable per se. An example would be the tort of trespass; thus, if X trespasses into Ys property he might be liable even though no damage was caused. The following interests are protected: Wrongs to persons: 1. Wrongs affecting safety and freedom of the person: Assault, battery, false imprisonment. 2. Wrongs affecting personal relations in the family: Seduction, enticing away of servants. 3. Wrongs affecting reputation: Slander and libel. 4. Wrongs affecting estate generally: Deceit, Malicious prosecution, conspiracy. Wrongs to Property: This includes torts such as trespass to goods and conversion. Where clothing or a car is damaged in a negligently caused accident, then a person may have an action for damages in negligence. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
In the cause of studying cases in Torts you will encounter concepts such as duty of care, remoteness of damages, fault, etc. When cases are analysed in these terms and there is held to be no liability as there was no duty or the damage was too remote, or the defendant was not at fault, this is referred to as formal conceptualism or black letter law. What is frequently concealed in this terminology is the policy reason behind the decision. Although as a lawyer you must know the relevant rules of law, to have a deeper understanding of how law works in practice you must have a clear conception of the policy issues which shape legal decisions. 2. Interference with rights analogous to property, such as private franchises, patents, copyrights. Economic interests: Generally this are not protected under torts.
States of mind in Torts Most torts require at least one of the following states of mind: malice, intention and negligence. Malice In law, the word malice has two meanings: 1. The intentional doing of an act without just cause or excuse. 2. The doing of an act with some improper motive. It can be seen, therefore, that it has a different meaning in law than that which we usually give it. (i.e. ill will or the desire to do harm) NOTE In law, the word malice essentially means the intention to commit an act, and this applies to the law of tort as well. With regard to the law of tort, the defendants intentions (generally speaking) are irrelevant. Intention Prossers Handbook of the Law of Torts says that: Intention in tort law is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. The meaning of intention varies according to the context in which it is used. Intention is relevant in three groups of torts: A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
1. Torts derived from the writ of trespass. Here intention means where a person desires to produce a result forbidden by law and where they foresee it and carry on regardless of the consequences. 2. In cases of fraud and injurious falsehood. In these torts the defendant must make a statement which they know is untrue. 3 In cases of conspiracy. If A and B combine together and act to cause injury to C, then C will have an action provided that they can prove that their primary motive was to cause them damage. Negligence Negligence in tort has several meanings. It may refer to the tort of negligence or it may refer to careless behaviour. In the careless behaviour sense the standard set is an objective one. The court will apply the test of what a reasonable man would have done in the defendants position. Causation A connection must be shown between the defendants breach of duty and the damage suffered by the plaintiff. We say that a persons act caused harm if the harm would not have occurred had the person not committed the act. That is X is a cause of Y if Y would not have occurred but for X. Question What should be the main objectives of Tort Laws? a) Compensation b) Deterrence c) Punitive Pick your option (s) and Support your answer with cases and academic treatises. The setting of the standard in negligence depends on what the objective of the negligence formula is. If the objective is to compensate the claimant for their loss, then it is clearly in the claimants interests to set the standard as high as possible. But if the objective is to deter the defendant, then it is counter-productive to set a standard which is too high to be attainable. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
A very important case on the question of whether a person is properly acting within the course of his employment is Harrison -v- Michelin Tyre Co. Ltd (1985), which defined the test of whether an employer was liable or not in the following way: Whether a reasonable man would say either that the employee's act was part and parcel of his employment even though it was unauthorised and prohibited by the employer (in which case the employer was liable), or that it was so divergent from his employment as to be plainly alien to his employment, and wholly disguisable from it, (in which case the employer was not liable.). ... under a contract of service, a man is employed as part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only necessary to it, and it depends on whether the person is part and parcel of the organisation.... Lord Denning MR
Who is liable in Tort? The person who actually commits the tort (called a tortfeasor) is the person who is always liable. When they are many they are known as joint tortfeasors. There are, however, some special considerations that are applicable to certain entities and persons such as, the state, Minors, Husband and Wife, Judicial immunity, Executors etc. A detailed examination of these is beyond the scope of this booklet. Vicarious Liability: Under Kenyan law the expression vicarious liability means the liability of a person for the wrongdoing of another, even if the first person has done nothing wrong. This does not mean that one person is deemed to have done the wrongful act. It means the person is liable in law for the wrongful action of the other. What is required is that the first person should stand in particular relationship to the other person and that the second persons tort should be referable in a certain manner to that relation. The commonest of these relationships in Law is the liability of a master for the torts of his servants. Vicarious liability generally arises from a contract service: (a) Employer and independent contractor, and (b) Employer and employee (master/servant) Master-Servant Relationship Who is a servant? A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
In Limpus --v- London General Ominibus Co. (1862), a bus driver, whilst racing another (rival) bus for customers, caused an accident. His employers were held liable because he was doing what he was employed to do, i.e. driving a bus, although in an improper way. Contrast, however, Beard -v- London General Omnibus Co. (1900) where a bus conductor attempted to turn a bus around at the end of its route and in doing so he caused an accident. His employers were not vicariously liable since he was employed as a conductor (only to collect fares) and not to drive buses. An act of violence will usually take the employee outside the scope of employment and the employer will not be liable. In Warren --v- Henlys (1948) a petrol pump attendant assaulted a customer during an argument over payment for petrol. It was held that the employee was personally liable, but his employers were not vicariously liable. Whereas the employee was doing his job, it was not within the scope of his employment to assault customers Since vicarious liability under Kenya law generally arises from a contract of service (servant) not a contract of services (independent contractor) it is important to determine the indicia if a contract of service. In an often cited statement in Short v. J & W Henderson Ltd Lord Thankkerton said that there are four indications of a contract of service; a) The masters power of selection of is servant b) The payment of wages or other remuneration c) The masters right to control the method of doing the work, and d) The masters right of suspension This list has been found helpful in determining whether a master-servant relationship exists but it is not conclusive. It is not possible to compile an exhaustive list of all the relevant considerations. The court stated in Market Investigation Ltd v. Minister of Social Security (1969 ) per Cooke J: The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may of importance are such matters as whether he hires his own equipment, whether he is own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. As we have seen, a person is a servant if his employer retains a right to control not only the work he does, but also the way in which he does it. The test is the right of control, not how much control was in fact exercised. This is the traditional test, but difficulties arise when applying it to professional persons such as doctors. In such cases it may be necessary to consider such criteria as payment of salaries and the power of dismissal. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
The rule is that a master is vicariously liable for the torts of his servants that are committed within the course of his employment. The tortuous act must be a wrongful way of doing what the employee is employed to do. Employer and independent contractor Generally speaking, we say that an employer is vicariously liable for the torts committed by its employees (provided that they are committed during the course of his employment) but that he is not generally vicariously liable for the torts committed by an independent contractor hired by him One of the difficulties, however, is to distinguish between employees and independent contractors, because, quite often, they overlap and the position is not clear. In such a case, it is up to the courts to define the relationship. We do have some basic tests that we can apply, however: Tests to distinguish between employees and Independent contractors: The old test for determining an employee was control i.e. does the employer control when and how the person carries out his tasks. Nowadays, however, a number of additional factors are taken into account. Thus the extent to which the employer controls the details of the work carried out by a person is now considered alongside tests relating to: who supplies the tools and equipment, on whose premises the work is carried out, and what the expressed intention of the parties is. Decisions stress the difference between the contract of service (employees) and the 'contract for services' (independent contractor). Example of the particulars of the breach of statutory duty: a) failing to make or keep safe the respondent's place of work; b) failing to provide or maintain proper apparatus at the place of work; c) employing the respondent without instructing him on the dangers likely to arise in connection with the place of work or without providing any or adequate supervision; d) failing to provide the respondent with proper skills; and c) failing to provide a safe system of work. In Kenya Tea Development Authority Ltd -VS- Andrew Mokaya, HCCA No. 174 of 2006 at Kisii Justice Makhandia (as he then was) made reference to what the author in Winfield & Julowicz in Tort (13th Edition) has said at page 203: A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
At common law the employer's duty is a duty of care and it follows that the burden of proving negligence rests with the plaintiff workman throughout the case. It has even been said that if he alleges a failure to provide a reasonably safe system of working, the plaintiff must plead and therefore prove what the proper system was and in what relevant aspects it was not observed. It is true that the severity of this particular burden has somewhat been reduced but it remains clear that for a workman merely to prove the circumstances of his accident will not normally be sufficient. While an employer is under a duty to take reasonable care for the safety of his employees so as not to expose them to unnecessary risk, it has to be borne in mind that breach of this duty must be proved by showing that the employer was careless and therefore negligent regard being had to the nature of work (Williamson Tea (K) Ltd -VS- Raymond Kipkemoi Arap Korir, HCCA No. 33 of 2009 at Kericho). The scope of the duty and the standard to be observed cannot be so wide as to encompass situations that cannot be reasonably foreseen or contemplated. In Statpack Industries vs James Mbithi Munyao Nairobi HC Civil Appeal No.152 of 2003 (unreported) Visram J, held at page 7 of his judgment that; Coming now to the more important issue of causation, it is trite law that the burden of proof of any fact or allegation is on the plaintiff. He must prove a causal link between someones negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someones negligence. An injury per se is not sufficient to hold someone liable. Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that:- On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence In Pepco Construction Company Limited v Carter & Sons Limited Nairobi CA No. 80 of 1979 (UR) wherein the Court of Appeal made observation that:- A notice of appeal is what gives this court jurisdiction in any appeal. It is a primary document in terms of rule 85(1) of the Rules. A record of Appeal must contain a valid copy of the notice of appeal. The omission to include a valid copy renders the appeal incompetent.; the case of Joseph Limo & 86 others versus Ann merz Civil A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Occupiers Liability: An occupier is a person who has some degree of control over the premises. He need not necessarily be the owner. It is also possible for there to be more than one occupier. In Wheat -v- E. Lacon & Co. Ltd. (1966) the defendants, who were the owners of a public house, were held to be the occupiers of the premises in addition to the manager and his wife who were in actual occupation. The test of occupation is: Whether a person has some degree of control arising from their presence or activity on the premises. Premises can include:: Any fixed or moveable structure, including any vessel, vehicle or aircraft this includes land, buildings and anything erected on that land whether they are fixed or movable structures and vehicles, including ships and aeroplanes. 'Visitors' are persons lawfully on the premises.
Application No.295 of 1998 Omollo JA made observation that:-A notice of appeal is the document which initiates an appeal it indicates who is aggrieved by the decision or part of the decision of the Superior Court and is or are therefore appealing in the case of Parsi Anjumani versus Mushin Abdulkarim Ali Civil Application Nai 328 of 1998 (UR) there was observation that:-a notice of appeal is a primary document within the meaning of rule 85(1) of the rules ; and lastly Nuru Ibrahim Amrudin versus Amir Mohamed Amir Civil Appeal No. 23 of 1998 (UR) the Court of Appeal ruled that an appeal can only be against a decree or an order not against a Judgment or ruling Occupiers liability
This is the liability of an occupier of premises for damage a done to visitors to the premises. Under Kenya laws: an occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. Occupiers liability at common law At common law the duties of an occupier were cast in a descending scale to four different kinds of persons. For example: a) The highest duty of care was owed by the occupier to one who entered in pursuance of a contract with him e.g. a guest in a hotel. In that case there was an implied warranty that the premises were as safe as reasonable care and skill could make them. b) A lower duty was owed to the invitee i.e. a person who without any contract entered on business of A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
interest both to himself and the occupier e.g. a customer coming into a shop to view the wares he was entitled to expect that the occupier should prevent damage from unusual danger of which knew or ought to have known. c) Lower still was the duty of the licensee i.e. a person who entered with the occupiers express or implied permission but without any community of interest with the occupier; the occupiers duty towards him was to warn him of any concealed danger or trap of which he actually knew. d) Finally, there was the trespasser to whom there was owed only a duty to abstain from deliberate or reckless injury. Occupiers liability deals with the liability of an occupier of premises and extends to immovable property as open land house, railway stations and bridges as well as movable structures like ships, gangways or even vehicles although lawyers prefer to treat injury in the latter as falling with common law negligence. Under common law lawful visitors who did not fall under the above classifications of contractual entrants, invitees or licensees were not clearly covered and accidents arising from the premises and affecting such person were commonly governed by the general law of negligence. The position of the common law was thought to be unsatisfactory. As lord Denning put it in Slatter v. Clay Cross Co.Ltd If a landowner is driving his car down his private drive and meets someone lawfully walking upon it then his is under a duty to take reasonable care so as not to injure the walker; and his duty is the same no matter whether it is his gardener coming up with his plants, a tradesman delivering his goods, a friend coming to tea, or a flag seller seeking a charitable gift The law was thus referred to the law reform committee in 1952 as a result of whose report the Occupiers Liability Act 1957 was passed. Modern Law on Occupiers Liability Occupiers Liability Act (CHAPTER 34 of the LAWS of Kenya) is the governing act in this area. Question: Write a 300 words essay on Occupiers liability to trespassers under Kenyan law. Your answer must be supported by appropriate Kenyan case law. Remember foreign case law only have a persuasive as opposed to a binding value. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Rule Rylands v Fletcher Blackburn J defined the rule as: A person who, for his own purposes, brings onto land and keeps there anything likely to do mischief if it escapes, must do so at his peril, and, if he does not do so, he is prima facie answerable for all damage which is the natural consequence of its escape Prerequisites of the operation of the rule in Rylands v. Fletcher: 1. the defendant made a non- natural or special use of his land; 2. the defendant brought onto his land something that was likely to do mischief if it escaped; 3. the substance in question in fact escaped; and 4. damage was caused to the plaintiffs property as a result of the escape. Strict liability
Strict liability means liability without fault. Most strict liability torts are created by Acts of Parliament. For example Safety at work laws created to protect employees. Strict liability under Kenya law is the imposition of liability without fault for damages on the defendant. This is different from negligence as the burden of proof is not placed on the plaintiff to prove that the damages were a result of the defendants negligence, only that damages occurred and the defendant is responsible. In strict liability, there is the assumption that the manufacturer or supplier was aware of the defect before it reached the plaintiff. How does a Plaintiff Claim Strict Liability? Under Kenya laws, for a plaintiff to make a claim based on manufacturing defects, the following must be true: 1. The defendant is the manufacturer of the defective product 2. The product contained defects when purchased by the plaintiff 3. The defect existed when the defendant sold the product The defect was responsible for injury to the plaintiff.The injury sustained by the plaintiff must be foreseeable by the manufacturer, within reason. Additionally damages may be awarded if the plaintiff can prove that the defendant was aware of the defect when the product was sold to the consumer. What are the Responsibilities of Sellers and Bailors? A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Factors to consider An analogy can be drawn between Ultra-hazardous activity and abnormally dangerous activity in USA The courts in US have held that the following factors can be taken into account in determining whether an activity is abnormally dangerous (a) there is a high degree of risk of some harm to others; (b) the harm that results is likely to be serious; (c) the risk cannot be eliminated by the exercise of reasonable care; (d) the activity is not common; (e) the activity is not appropriate for the place where it is carried on; and (f) the danger outweighs the activitys value to the community. NOTE Probably the single most important factor is that the activity be one which cannot be carried out safely, even with the exercise of reasonable care. Under Kenya laws, the lending of personal property to another with the agreement to return the property at a later time is called bailment. The owner is known as the bailor and the recipient of the property is the bailee. If there are inherent dangers in the use of the property, the bailor is responsible for warning the bailee of those dangers. Therefore, the bailor is liable for negligence if appropriate notice is not given to the bailee. Similarly, the seller assumes responsibility from the manufacturer to warn the consumer about the dangers of the product. How does Strict Liability Relate to Ultra Hazardous Activity? The ultra-hazardous activity doctrine states that certain activities are create a serious risk of danger and that liability must be placed on persons engaging in this activity regardless of fault.
In this legal definition the plaintiff under Kenya laws must have engaged in an ultra-hazardous activity which caused the plaintiff to suffer injury, loss or damage and the defendant should have recognized the likelihood or damage to the plaintiff during the course of this activity. Some examples of ultra-hazardous activity include demolition and the handling of dangerous animals.
A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Defences to a tort
There are several different defences in tort law which may excuse a defendant of wrongdoing and prevent him from being held liable for damages to the plaintiff. The word defence bears several meanings in the tort context. First, it is sometimes used to refer to any argument that persuades the court to find that the defendant is not liable. So understood, the word defence encompasses absent element defences. Absent element defences are denials by the defendant of an element of the tort in which the plaintiff sues. For example, when a defendant denies that he is the tortfeasor, denies that his impugned act was voluntary, denies that he was at fault when proof of fault is required, or denies that the plaintiff suffered damage when damage is the gist of the tort in which the plaintiff sues. In a second and stricter sense, the word defence refers only to rules that, when enlivened, result in a verdict for the defendant even if all of the ingredients of the tort that the plaintiff contends was committed against him are present. A defendant invokes a defence within this meaning of the word when he argues along the following line: Even if I committed a tort, judgment should nevertheless be entered in my favour because of rule so and so. Absent element defences do not qualify as defences when the word defence is used in this way. Thirdly, the word defence is used to encompass principles that limit the relief to which a plaintiff is entitled. An example is the defence of contributory negligence. Fourthly, the term defence is deployed to refer to rules in respect of which the defendant bears the onus of proof. First-line defence Example I did not commit the tort of negligence because the claimant has failed to prove that I did not act as a reasonable person. I was reasonable because... Once the claimant has established the basic requirements of the tort then the defendant is given an opportunity to argue a general defence. General defences under Kenya law can be classified as: The defence of Consent When plaintiff is the wrongdoer A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Defence of Consent In Smith -v- Baker (1891) the claimant, who worked in a quarry, was injured when a stone fell from a crane which his employers negligently used to swing stones above his head. When sued, his employers pleaded the defence of volenti. They were able to show that the claimant knew of the risk of injury, but they could not show that he freely consented to run that risk. -He may have continued to work under the crane through fear of losing his job. The claimants action, therefore, succeeded. Inevitable Accident Act of God Act in relation to Private Defence Necessity Act in respect to Statutory Authority The defence of Consent:
This defence is based on the principle of Volenti non fit Injuria. Latin for: No wrong is done to one who consents. The general rule is that a person, who has voluntarily agreed to suffer harm, cannot claim damages for such harm. This consent to suffer harm can be either express or implied. However, such consent must be given freely and not obtained by fraud or any other illegal means. The Meaning of 'Consent in the law of Tort: Consent may result from a specific agreement to run a risk or it can be implied from the claimant's conduct. Consent can either be in respect of an intentional act, which would otherwise be tortuous, or it can be the consent to run the risk of accidental injury. Mere knowledge does not necessarily imply consent. The claimant must both appreciate the nature of the risk of injury and consent to run that risk.
A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Plaintiff as wrongdoer Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341, said that no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. Bingham LJ in Saunders v Edwards [1987] 1 WLR 1116 overlaid the principle with the following gloss: Where the claimants action in truth arises ex turpi causa he is likely to fail. Where the claimant has suffered a genuine wrong to which the allegedly unlawful conduct is incidental, he is likely to succeed. See also English Cases : Clunis v Camden and Islington Health Authority [1998] QB 978, 987. And Standard Chartered Bank v Pakistan National Shipping Corporation and others (No 2) Defence of illegality on the part of plaintiff
This defence is based on the maxim Ex turpi causa non oritur actio which means no action rises from an immoral cause. In other words if one knowingly engages in an illegal activity he will not be allowed to profit from it. This means that, if the action of the plaintiff was unlawful itself, then the defendant might raise that fact as a general defence. NOTE Public policy requires that the Courts will not lend their aid to a man who founds his action upon an immoral or illegal act. However, it remains difficult to identify when a claim in tort will be barred on the basis of the defence of illegality: part of the difficulty stems from the wide variety of factual situations in which the illegal conduct may arise. The Defence of Inevitable Accident
An inevitable accident is an occurrence not avoidable by any precaution a reasonable person would be expected to take. The person invoking the defence must show that something happened over which he or she had no control, and the effect of which could not have been prevented by using great skill and care. He or she must show either the cause of the accident and the inevitability of its result, or all the possible causes A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
A plea of inevitable accident in negligence cases is merely a repetition of the general rule that an actor is not liable for harm unless the harm was caused by the actors failure to exercise reasonable care. it therefore follows that: this defence cannot be raised in torts of strict liability. Inevitable Accident A plaintiff seeking to undermine or defeat a defendants reliance on the defence of inevitable accident must challenge with evidence and argument the defendants explanation of how the accident, collision or mishap occurred without his negligence. In Stanley -v- Powell (1891) the claimant was injured by a shot fired by the defendant whilst on an organised shoot. The shot was aimed at pheasants but glanced off a tree before hitting the claimant. See Also: Holmes v Mather (1875) LR 10 Ex 261 (Exch Ch); Stanley v Powell [1891] 1 QB 86 (QBD). and the inevitability of the result of each. Thus, the defence asserts that where an accident is purely inevitable, and is not caused by the fault of either party, the loss lies where it falls. NOTE According to the authorities, once the plaintiff establishes a prima facie case of negligence, the onus will shift to the defendant to prove inevitable accident. In so doing, the defendant is required to show how the accident took place and that the accident could not have been avoided by the exercise of the greatest care and skill. A defendant may thus escape liability by showing one of two things: (i) prove the actual cause of what happened and that he was not responsible for it, or (ii) prove all the possible causes of the accident and that he was not responsible for any of them. In Road Accidents some of the factors that may be taken into account include: road conditions, weather, speed, the condition of the vehicle, the intensity of the vehicles headlights, the drivers experience and his/her familiarity with the roadway, A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Act of God In modern jurisdictions, "act of God" is often broadened by statute to include all natural phenomena whose effects could not be prevented by the exercise of reasonable care and foresight. Blacks Law Dictionary defines an act of God as An act occasioned exclusively by violence of nature without the interference of any human agency. A natural necessity proceeding from physical causes alone without the intervention of man. It is an accident which could not have been occasioned by human agency but proceeded from physical causes alone. In Nichols --v- Marsland (1876) an extraordinary rainfall caused the banks of some artificial lakes on the defendant's property to burst and the resultant floodwater carried away a number of bridges owned by the county council. The escape of water was an act of God.
the drivers reaction to the risk presented, any evasive action taken, other traffic on the roadway, and the physical and mental condition of the driver (ie. fatigued, distracted, dizzy, experiencing a medical crisis or condition, etc.). The Defence of an Act of God
The defence of act of God can negate the fault element of the tort of negligence on the ground that the damage was due to an act of God. The defence covers extraordinarily major intervention, something which is a consequence of furious working of natural forces. An Act of God must not be within the possibility of foresight and preventability of a reasonable human being. Difference between an Act of God and Inevitable Accident: 1. An accident without the involvement of humans is an act of God. An accident which humans cant ordinarily avoid is inevitable accident. 2. In case of inevitable accidents, the actions may be a result of human activities. Hence, even if one knows the occurrence is going to happen, one still cant avoid it. However there is no room or possibility of human foresight in case of an Act of God or Vis Major.
A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Some other defences under Kenya law: Necessity
This is in respect of intentional damage caused in order to prevent even greater damage or destruction, or in defence of the realm. Therefore, if damage is caused to avoid a greater damage, it becomes a good defence. It includes, for example, destroying properties in the path of a fire to prevent the spread of the fire. In Cope -v- Sharpe (1912) a fire broke out on the claimants land, and the defendant, a gamekeeper on adjoining land, entered the claimants land and burnt some of the heather to form a firebreak to prevent the fire spreading to his employers land. When sued for trespass his defence of necessity succeeded since there was a real threat of fire and the defendant had acted reasonably. Act in respect to Statutory Authority
Where a statute has expressly authorised the thing to be done, or the thing done is a necessary consequence of what is authorised by statute then there is a complete defence to a tort, provided the defendant proves that he used all proper care. In Vaughan -v-Taff Vale Railway (1860), the defendants, who were authorised to operate under Statute, were found not liable for fires caused to the claimants land caused by sparks from the train engines, since the defendants were obliged to operate the railway and had done so with proper care. NOTE Where the damage is not a necessary consequence of what is authorised by Statute then this cannot give rise to the defence. Mistake
There are two types of mistakes a) Mistake of Law. Mistake of law is no defence and ignorance of law, no excuse A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
b) Mistake of Fact. The general rule is that mistake is no defence in tort. There are, however, three exceptions provided the defendant acted reasonably in making the mistake: (i) False imprisonment -where for example a policeman without a warrant arrests someone who has not committed a crime when he reasonably believes that they have. (ii) Malicious prosecution - where the defendant was under the reasonable mistaken belief that the claimant had committed a crime. (iii)Defamation - where the defamation was unintentional.When mistake of fact is a defense.
A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Specific Torts
There are a number of different torts protecting different rights. The more common torts are: Torts affecting the person: Assault: a menacing act constituting a threat of violence by one person against another (this is also a crime) Battery: any unauthorised interference by one person with the person of another, however slight (this is also a crime). False imprisonment: physical restraint of a person which is not authorised by law. Knowledge that one is restrained is not necessary to constitute the tort (this can also be a crime). Negligence: breach of a duty of care owed to a person causing foreseeable injury to the person. This is the first of the Torts that we shall study. The above torts are classified, in law, as trespass against the person. Torts affecting property: Private Nuisance: an indirect interference with another's use or enjoyment of land. Owed to the occupier of land, not generally to an absentee owner unless future occupation is affected, e.g. by structural damage. Includes interference through smells, vibrations, and penetration by roots, etc. This is another of the Torts that we shall be studying Trespass to land: direct interference with a person's rights of possession to land. Includes entry on to property and placing things on property. The duty is owed to the possessor even if they are not the owner. The tort is actionable per se. We shall be studying this Tort Trespass to goods: a wrongful interference with goods in the possession of another, e.g. touching, marking or taking away (this can also constitute a crime, e.g. theft). Conversion: an act in relation to goods, which constitutes an unjustifiable denial of the title of the true owner. The wrong is against the true owner. Includes taking away goods plus a denial that the person from whom they have been taken is the owner. Sale of goods, which are not ones own, constitutes conversion against the true owner (can also be a crime). A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Negligence: a breach of a duty of care in respect of the property of another causing foreseeable harm. Strict liability: allowing things stored or collected on land which are natural to the land to escape and cause damage to the property of another e.g. water escaping from a reservoir. -Rylands -v- Fletcher (1868). Occupiers liability: the duty of care owed by occupiers of land towards those who lawfully enter the land or even if they enter the land as a trespasser (another of the torts that we will be learning). Torts affecting economic rights: Interference with contract: Without lawful justification persuading a person to break a contract with another, or acting in such a way as prevent its performance. Intimidation: making a threat intended to cause another to act or refrain from acting in a certain way to that person's detriment or that of a third party. Passing off: representing one's goods or services to be those of another, causing loss of trade or damage to business reputation. Trading in a name similar to that of another like business to the confusion of the public. Deceit: making a false statement with intent to deceive, intending another to act upon it to their detriment (this can also be a crime) Negligent misstatement: breach of duty of care in giving advice to a person to whom one owes a duty of care causing them damage of foreseeable kind including purely economic loss (we shall be covering this in connection with the Tort of negligence generally). Torts affecting rights generally Public nuisance: behaviour which materially affects the reasonable comfort and convenience of a class of people who come within the sphere or neighbourhood of its operation, e.g. carrying on an offensive trade or obstructing the highway. A private individual can only sue if he or she has suffered special damage over and above that suffered generally, otherwise the Attorney General on behalf of the public must bring the action. Conspiracy: a combination of two or more persons planning together to injure a third by unlawful means.
A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Definition: Battery is: 1) intentional, (2) harmful or offensive (3) contact with the (4) plaintiff. (Example: A intentionally punches B in the nose. A has committed battery.) Intent It is not necessary that A desires to harm B. A has the necessary intent for battery if it is the case either that: (1) A intended to cause a harmful or offensive bodily contact; or (2) A intended to cause an imminent apprehension on Bs part of a harmful or offensive bodily contact. Example 1: If A shoots at B, intending to hit him with a bullet then A has the necessary intent for battery. Example 2: If A shoots at B, intending to miss him, but also intending to make him think that he would be hit. A has the intent needed for battery. Harmful or offensive Contact is harmful if for example it causes pain or bodily damage. However, battery also covers contacts, which are merely offensive The test is whether or not the contact was permitted by the plaintiff. Trespass to the person
Under Kenyan Laws this is defined as an act of the defendant which causes the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. It is an act of the defendant which directly and either intentionally or negligently causes the plaintiff immediately to apprehend a contact with the body of the defendant .This tort under kenya law protects a person from mental anxiety. Rules of the Tort 1. There must be some apprehension of contact 2. There must be a means of carrying out the threat by the defendant 3. The tort is actionable per se. 4. The tort is generally associated with battery 5. Mere words without body movement do not constitute assault. Assault under Kenya law is constituted by:- i. A display or show of force ii. Pointing of a loaded gun iii. Cursing in a threatening manner Battery
This is defined under Kenya law as the intentional and direct application of force to another person. It has been defined as any act of the defendant which directly and either intentionally or negligently causes some physical contact with the person or body of the plaintiff without his consent. As a general rule battery is based on an intentional act and is both a crime and a tort. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Meaning of Force This is defined under Kenya law as any physical contact with the body of the plaintiff or with his clothing is sufficient to amount to force. There is battery where the defendant shoots the plaintiff from a distance just as much as when he strikes him with his fist. Mere passive obstruction is however not battery. In the technical sense however, no physical hurt is necessary, for all forms of trespass are actionable per se i.e. without prove of damage. Where there is express or implied consent to contact the plaintiff cant sue. Life would be difficult if all bodily contact was actionable and courts have struggled to find some further ingredient to distinguish battery from legally unobjectionable conduct. For battery there must be a voluntary act by the defendant intended to bring about the contact with the plaintiff. The battery need not be committed with the person of the person of the defendant. Rules of Battery Under Kenya Law 1. Absence of the plaintiffs consent 2. The act is based on an act of the defendant mere obstruction is not battery 3. A contact caused by an accident over which the defendant has no control is not battery 4. There must be contact with the person of the plaintiff it has been observed The least touching of another person in anger is battery 5. Battery must be direct and the conduct must follow from the defendants act 6. The tort is actionable per se. The essence of battery is to protect a person from un- permitted contacts with his body. The principal remedy is monetary award in damages. Assault
Definition: Assault is: (1) intentionally (2) causing apprehension of (3) harmful or offensive contact NOTE Both torts of assault and battery are actionable per se under Kenya law. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Definition: False imprisonment is: (1) a sufficient act of restraint that (2) confines someone to a (3) bounded area. In Big Town Nursing Home, Inc. v. Newman (US) it was held that: False imprisonment is the direct restraint of one person of physical liberty by another without adequate legal justification. (a) One person cannot give away the rights to liberty of another unless there is (1) a power of attorney, or (2) legal guardianship, or (3) mental incompetency. Intent: A must show that B either intended to confine him, or at least that B knew with substantial certainty that A would be confined by Bs actions. The tort of false imprisonment cannot be committed merely by negligent or reckless acts. Confinement: The idea of confinement is that A is held within certain limits, not that she is prevented from entering certain places. (Example: B refuses to allow A to return to her own home. This is not false imprisonment A can go anywhere else, so she has not been confined.) The imprisonment can be carried out by direct physical means, but also by threats or by the assertion of legal authority. Where the defendants act has caused no damage the courts may award only nominal damage but the court may also award aggravated damages because of the injury to the feelings of the plaintiff arising from the circumstances of the commission of the tort.
False imprisonment
This is defined under Kenya laws as the infliction of bodily restraint which is not expressly authorized by law. Its an act which is directly and either intentionally or negligently causes the confinement of the plaintiff within an area limited by the defendant. This tort under Kenya law protects a persons freedom by making unlawful confinement actionable. It is possible to commit the tort without imprisonment of a person in the common acceptance of the tort. In fact neither physical conduct nor anything resembling prison is necessary. Main Ingredients of the Tort (a) Knowledge of the plaintiff Under Kenya laws, knowledge of the restraint is not necessary but may affect the quantum of damages (b) Intention and directness The tort under Kenya law is defined to exclude negligent imprisonment of another person. The tort must be intentional and should be committed directly. Nevertheless, where for reason of lack of intention or directness the plaintiff cannot establish false imprisonment an action in negligence may still be available. (c) The restraint must be complete There must be a total restraint placed upon the plaintiffs freedom of action. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Rules of the Tort under Kenya Law 1. The tort must be intentional 2. It is immaterial that the defendant acted maliciously 3. The restraint or confinement must be total. However, it need not take place in an enclosed environment 4. It has been observed every confinement of a person is an imprisonment whether it be in a common prison, private house or in the stocks or even forcibly detaining one in the public 5. The boundary of the area of confinement is fixed by the defendant. The barriers need not be physical. A restraint affected by the assertion of authority is sufficient. 6. The imprisonment must be direct and the plaintiff need not have been aware of the restraint 7. The tort is actionable per se. 8. The principal remedy is a monetary award in damages.
A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Ingredients of Trespass Possession: Since trespass is a wrong done to the possessor of land, only he (rather than the owner, unless, of course, the owner is also in possession) can sue. Possession includes not only physical occupation, but occupation through servants and agents. Mere use, for example by a lodger or licensee (visitor) is not possession in law. Interference: This must be direct interference, either by Entering on land, or Remaining on the land after permission to stay has ended. An exception is a tenant who, if he remains on at the end of his tenancy, retains possession as a statutory tenant and therefore does not become a trespasser. Placing objects on land. If a right to enter on the land is abused this may alter the position of a lawful visitor to that of a trespasser: NOTE If a person enters in exercise of a common law or statutory right and abuses the right by a positive act he is deemed to be a trespasser from the moment he entered the premises, i.e. a trespass ab initio (from the beginning). Trespass to Land
Trespass to land is the Direct interference with the possession of another person's land without lawful authority.
Common law trespass As generally used, trespass occurs when either: (1) Defendant intentionally enters Plaintiffs land, without permission. (2) Defendant remains on Plaintiffs land without the right to be there, even if she entered rightfully. (3) Defendant puts an object on (or refuses to remove an object from) Plaintiffs land without permission. Trespass a tort actionable per se, i.e. without proof of loss. It is actionable merely because it has been committed. Defences: The general defences of volenti, necessity, inevitable accident, self-defence and statutory authority all apply, but mistake is no defence. Special defences, however, are: Entry to exercise a common law right. For example, if A enters B's land to repossess his goods that B has wrongfully taken onto his land. Entry by licence. When the licence expires the person becomes a trespasser when he does not leave, in contrast to a lessee/tenant who remains in possession. Remedies available to the person in possession: i. Damages, nominal or compensatory. ii. Injunction. iii. Ejection of the trespasser. Reasonable and proportionate force may be used. (i.e. Proportionate to the amount of force that the trespasser is using to prevent ejection). A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Remedies available to an owner who has been wrongfully dispossessed: i. Re-entry - however the re-entry must be peaceful. Note: The law regarding tenants has now been changed so that it is illegal to remove a tenant without first obtaining a court order. ii. An action for the recovery of land. iii. Having recovered possession as above, such person is deemed, by the doctrine of Possession by Relation, to have been in possession since the moment his right to possession accrued. He can therefore maintain an action for mesne profits, (i.e. profits lost to the claimant, or a sum for the defendants use and occupation of the land) whilst the defendant was wrongfully in possession
Conversion
This is defined under Kenya laws as the intentional dealing with goods which is seriously inconsistent to possession or right to possession of another person. This tort protects a persons interest in dominion or control of goods. The plaintiff must have possession or the right to immediate possession. However, a bailee of goods can sue 3rd parties in conversion so can a licensee or a holder of a lien or a finder. Any good or chattel can be the subject matter of conversion. There must be physical contact resulting in interference with the goods. Acts of conversion under Kenya law i. Taking goods or disposing; it has been observed that to take a chattel out by anothers possession is to convert it or seize goods under a legal process without justification is conversion. ii. Destroy or altering iii. Using a persons goods without consent is to convert them iv. Receiving: the voluntary receipt of anothers goods without consent is conversion. However, receiving of anothers goods in certain circumstances is not actionable for example goods received;- i. In a market overt; the purchaser acquires a good title ii. Estoppel; if the true owner of the goods is by his conduct denying the sellers the right to sell, the buyer acquires a good title to the goods A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
iii. Goods received from a factor or a mercantile agent iv. A negotiable instrument received in good faith v. Goods received from a person who has a voidable title before the title is avoided vi. Disposition without delivery - a person who sells another goods without authority but without delivering them to the buyer converts them vii. Disposition and delivery - A person who sells anothers goods without authority and delivers the same to the buyer is guilty of conversion viii. Mis-delivery of goods a carrier or a warehouse man who delivers the goods to the wrong person by mistake is guilty of conversion ix. Refusal to surrender anothers goods on demand The principal remedy available is a monetary award in damages and the plaintiff is entitled to the value of the goods he has been deprived. The value s determined as per the date of conversion. If the plaintiff suffers a pecuniary loss as per the result of the conversion he is entitled to special damages.
A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Donoghue -v- Stevenson (1932). The appellant, Mrs. Donoghue and a friend went into a cafe where the friend purchased a bottle of ginger beer for Mrs. Donoghue. The appellant (Mrs. Donoghue) had drunk one glass from the bottle of ginger beer but as she poured out the second glass, the decomposed remains of a snail came out of the bottle. The appellant became ill as a result and sued the manufacturers, claiming damages. The question before the House of Lords was whether the manufacturer of a product owes the consumer a duty of care in tort to prevent injury. The importance of this decision was that the consumer (i.e. Mrs. Donoghue) was not the purchaser of the drink, but a friend of the purchaser. There was, therefore, no contractual relationship between her and the manufacturers of the ginger beer. The manufacturers claimed that as there was no contractual relationship between them, they could not be liable to her. The House of Lords decided otherwise, thus liberating liability in negligence from the rigidity of privity of contract which had until then been the deciding factor, it established a new category of duty owed by a manufacturer to the ultimate consumer. Negligence
Negligence relates to the protection of the person and of property. The law in this respect makes a distinction between intentional and non-intentional, or involuntary, interference with person and property. Where the interference is intentional, the appropriate tort is trespass to the person, trespass to goods or trespass to property. Where the interference is involuntary (i.e. unintentional) but negligent the appropriate action lies in the tort of negligence. As an independent tort, negligence can be defined as being: The breach of a legal duty to take care, owed by the defendant to the claimant, resulting in unintended harm to the claimant There are three essential ingredients of the tort that must be established: 1. The existence of a legal duty of care owed by the defendant to the claimant 2. A breach of that legal duty by the defendant 3. Injury to the person or damage to property suffered by the claimant arising out of the breach of the duty. It is necessary to examine these three ingredients in detail: The existence of a legal duty of care The claimant must satisfy the court that a legal duty of care is owed to him by the defendant. A legal duty of care means a duty recognised by the law. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
In Donoghue v Stevenson Lord Atkin stated: A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care in the preparation of the products will result in an Injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care. The case was a breakthrough in connection with the tort of negligence and formed the basis of the law of manufacturers' liability for products. More important, for a keen student of negligence law, the decision illustrates the tort of negligence can be developed to cover situations for which there is The court said that the categories of negligence are never closed, meaning that the court can adapt the neighbour principle to new situations if and when they arise. no precise precedent. How can we define a duty of care? The most frequently quoted attempt to rationalise the duty of care is the famous statement by Lord Atkin in Donoghue -v- Stevenson (1932): You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour NOTE
Everyone owes a duty to take reasonable care to avoid acts or missions whom they can (reasonably) foresee would be likely to injure their neighbour In Donoghue v- Stevenson, defined neighbours as: .... persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected, when I am directing my mind to the acts or omissions which are called into question. the neighbour test. In connection with the tort of Negligence: A person must take reasonable care.......... To avoid acts and omissions............ Which they can reasonably foresee would be likely to injure any persons.................. Who are so closely and directly affected by their act............. That they ought reasonably to have them in contemplation as being so affected................ When they are directing their mind to the acts or omissions, which have been called into, question.................... However, The duty of care must be owed to the claimant: A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
In Bourhill -v- Young (1943), a motorcyclist, driving too fast, was involved in an accident with a car. Some distance away, in a safe position, a pregnant woman heard the sound of the crash which frightened her so much that it made her ill and caused her to give birth later to a still-born child. The court held that she was beyond the area of foreseeable danger and that the defendant owed no duty of care to her. It would not have been reasonable for the defendant to have contemplated that the accident would have had the repercussions, with regard to the claimant, that it did. Two more cases show a wider operation of this foreseeability. In Dooley -v-Cammell Laird & Co. Ltd. (1951), the claimant recovered damages for nervous shock caused by fear for the safety of his work mates, when the sling on a crane, which he was operating, collapsed, sending its load into the hold of a ship where the others were working. In Chadwick-v- British Transport Commission (1967), the claimant recovered damages for nervous shock after his involvement in a rescue operation following a train accident. The court held that it was foreseeable that persons might come to the rescue in the case of a crash and might suffer nervous shock as a result. The problems that arise here involve claimants who are so removed from the area of the breach of duty of care so that they cease to be foreseeable by the defendant as likely to be injured by the negligent act or omission, or, to put it in plain English - a reasonable person would not have foreseen that their negligent act (or omission) would, in the circumstances, have harmed the claimant. Foreseeability and proximity The concept of foreseeability or remoteness of foreseeability is called the test for proximity. Thus one can ask: Was the commission of the tort the proximate cause of the damage complained of? Technically, the concept of foreseeability and proximate cause is one and the same, looked at from different angles. Space, time, distance, the nature of the injuries sustained and the relationship of the claimant to the immediate victim of the accident are factors to be weighed, but not legal limitations, when the test of reasonable foreseeability is to he applied. Per Lord Scarman in McLoughlic -v- OBrian (1982). NOTE It is firmly established that a careless/negligent person should not have to compensate everyone that might suffer as a result of his acts or omissions. For example: The English case of Alcock & others -v- Chief Constable of South Yorkshire Police (1991) (the Hillsborough disaster case) is typical of a recent move towards restricting the extension of the duty of care as a matter of public policy. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Another example is In Hill -v Chief Constable of West Yorkshire (1989), the court held that the police do not owe a duty of care to the general public in relation to the prevention or detection of crime. The main argument against such an extension of the duty of care is based on the floodgates argument. Liability for negligent misstatements This arose out of the decision in Hedley Byrn & Co. Ltd -v- Heller & Partners Ltd (1963) where the House of Lords established that recovery for economic loss arising out of a negligent misstatement was possible where: The advice was given by an expert acting within the sphere of his or her expertise who is in a relationship of sufficient proximity to the person receiving the advice so that the defendant must reasonably know who is going to act on their advice and the way in which they are going to act. The more recent decision in Caparo Industries -v- Dickman (1990) has clarified the situation of liability for negligent misstatement. In this case the court held that the auditors of a company did not owe a duty of care to shareholders or members of the public who purchased shares in reliance on the audited accounts, which they had prepared negligently. Although it may be foreseeable that persons use the audited accounts for a variety of purposes, including making decisions about whether or not to purchase shares, and that they may suffer financial loss if the accounts are inaccurate, this was insufficient to establish a duty of care. In addition, there must be sufficient proximity between the claimant and the defendant, and the court must consider it just and equitable to impose a duty of care. The person giving the advice or information must be fully aware of the nature of the transaction in contemplation and that the claimant would rely upon the advice or information. The court found that the purpose of the auditor was to enable the shareholders as a body to use the audited accounts to make corporate decisions, and not for the purpose of individual shareholders making personal decisions as to whether or not to deal in the securities of the company. Breach of the duty of care
The test of whether there has been a breach of duty is an objective one based on the notion of the response to the situation of a reasonable person. This is not a particularly conscientious person but the average, prudent person. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Whether or not there is a breach of a duty of care is always a question of fact, depending on the circumstances of the case. In determining whether there has been a breach of duty the courts will take into account the following factors: The likelihood of harm
The seriousness of the risk and the risk of serious injury
The usefulness or importance of the defendant's activity when the alleged negligence occurred
The relationship between the risk and the measures taken
The burden of proof and res ipsa loquitur
The likelihood of harm: The amount of care required to be exercised increases with the likelihood that the defendant's action will result in harm. Thus if there is only a remote possibility of harm, a person will be acting reasonably even though he or she does not protect against the harm being suffered. The Less likely the harm, the lower the duty of care The more likely the harm, the higher the duty of care The seriousness of the risk and the risk of serious injury: The standards of a reasonable person may in certain circumstances be higher, particularly where the defendant is aware of the need for greater care. The usefulness or importance of the defendant's activity when the alleged negligence occurred: The court will take into account the value to the community of the defendant's activity at the relevant time. The relationship between the risk and the measures taken: The measure taken in avoiding the risk of harm must be balanced against the likelihood of the risk. The burden of proof and res ipsa loquitur A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Res ipsa loquitur is Latin for the thing speaks for itself In normal circumstances the burden of proof is on the claimant to establish the negligence, i.e. the breach of the duty of care. However, there is a rule of evidence, which is of great importance in the tort of negligence, since it removes from the claimant the burden of proof. Is the rule, or doctrine, of Res Ipsa Loquitur. The doctrine of res ipsa loquitur In certain circumstances, the fact that the accident happened points to no other explanation other than that the defendants negligence must have caused it. In these circumstances all that the claimant is required to establish is the injury, which they have suffered. The doctrine establishes prima facie negligence on the part of the defendant, which they are obliged to rebut if they are to avoid liability. The doctrine only applies in a limited number of cases, namely where the claimant is unable to prove the precise cause of the injury, but where the most likely cause was some act or omission on the part of the defendant, or someone for whom the defendant is vicariously liable. In order to establish the application of the doctrine, three requirements must be established: 1. It must be impossible to establish the negligent action or omission, which caused the injury. 2. The injury must be such as would not normally have occurred if proper care had been exercised. 3. The defendant must have had control over the events alleged to be the cause of the injury.
Remoteness of damage
The doctrine of remoteness of damage states: Intended consequences are never too remote; If, however, the consequences are unintended, the wrongdoer is liable for the natural and probable consequence of their wrongful act. In this context a consequence is natural and probable when it is one which is so likely to result from the act, that the wrongdoer, acting as a reasonable person, would have foreseen it, because of their state of knowledge or means of knowledge, and thus would have A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
In The Wagon Mound (1961) an action was brought by the owners of a wharf against the owners of a ship called The Wagon Mound. The ship had discharged oil into Sydney harbour which ignited when hot metal from welding operations being carried on in the harbour fell onto a piece of cotton waste floating on the oil. As a result the wharf was severely damaged. The court held that damage to the wharf simply by fouling would have been foreseeable to the reasonable man, but not damage by fire since oil on water does not usually ignite. The ignition of the oil only occurred because the hot metal happened to fall onto a piece of highly combustible cotton waste and such an eventuality was not reasonably foreseeable. Note: In torts of strict liability (i.e. the rule in Rylands-v-Fletcher and in breach of statutory duty), the reasonable foreseeability test does not apply. The defendant will have to compensate the claimant for all the damage that is the direct result of the tort. avoided doing the act. It follows, therefore, that a defendant will only be liable to compensate the claimant in respect of the foreseeable result of his act. Anything else is too remote Closely coupled with the doctrine of remoteness of damage is the doctrine that a claimants award of damages can be reduced if he, himself, has in any way contributed to the damage sustained. It is called contributory negligence Contributory negligence can arise under the following circumstances: Where the claimant contributes to the accident, e.g. both the claimant and the defendant were driving negligently when the accident occurred Where the claimant through his action or omission makes the injury or damage suffered more serious, e.g. by failing to wear a seat belt in a car or a crash helmet on a motorcycle Relevant defences
Remoteness of Damage: The second general defence in Tort is that the damage suffered was not suffered as a direct result of the tort, i.e. it is too remote from the tort itself. This is called remoteness of damage. In essence, a defendant is not liable for damage, which is not sufficiently clearly linked with the tortuous act of the defendant. If, for example, the claimant would have suffered the same injury despite the defendants tortuous conduct, he will not receive compensation. The test, which is one of reasonable foreseeability as established in The Wagon Mound (1961) and provides that: A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
A defendant is only liable for the consequence of his act that a reasonable man would have foreseen. NOTE The test is an objective test -i.e. what matters is not what the defendant actually (personally) foresaw (which would be a subjective test) but what a reasonable man (i.e. your ordinary everyday person. The Thin Skull principle There is an exception to the test of foreseeability. The general principle is that a tort- feasor (the person committing the tort) takes his victim as he finds him. If, due to some peculiar weakness, the victim suffers injury beyond that which is foreseeable, the defendant will be liable for the injury actually suffered. Novus Actus Interveniens: The other defence is novus actus interveniens which, translated from the Latin means a new intervening act (or cause). This, then, is an act, or event, that breaks the connection between the tort and the subsequent damage and therefore relieves the defendant of liability for such damage. A defendant will escape liability if he can prove that the injury suffered by the claimant was the result of a subsequent and intervening event, which broke the chain of causation linking the injury (damnum) to their tortuous act (injuria). This may be an act of the claimant himself or the act of a third party over which the defendant had no control. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
Remedies
Under Kenya laws the main remedy against tortious loss is compensation in damages or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defence against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction. This means a command, for something other than money by the court, such as restraining the continuance or threat of harm. Usually injunctions under Kenya law will not impose positive obligations on tortfeasors, but some jurisdictions can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters. Damages
Under Kenya laws,the fundamental principle applied to the assessment of an award of damages is that the claimant should be fully compensated for his loss. A plaintiff is entitled to be restored to the position that he would have been in, had the tort not been committed, insofar as this can be done by the payment of money. (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39). Types of Damages Nominal and contemptuous
Nominal damages under Kenya law will be awarded where the claimant proves that the defendant has committed a tort but the claimant has suffered no loss. Contemptuous damages consist of the award of a derisory sum, usually the smallest coin of the realm of. They are awarded when the court considers that the claimant's action, although technically successful, was without merit and should not have been brought. The claimant may then be at risk on costs, which are normally awarded to the successful party. General and special
General damage under Kenya law is the damage that is presumed to flow from torts which are actionable per se, and so need not be specifically pleaded (e.g., loss of reputation in a libel action). Special damage refers to the damage that the claimant A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
must plead and prove as part of his cause of action in torts where damage is the gist of the action (e.g., negligence, nuisance, slander). There is a second and much more commonly used meaning of the distinction between general damages and special damages. In practice, losses that are capable of being calculated with reasonable accuracy are pleaded as 'special damages'. Inexact or unliquidated losses (although they are not presumed and therefore must be pleaded) are compensated by an award of 'general damages'. For example, in a personal injuries. Special damages The Court of Appeal in the case of Jacob Ayiga Maruja & another Vs. Simeon Obayo [2005] eKLR held thus-
We agree and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. But when such a large sum is claimed for such expenses then there ought to be proof of what the money was spent on. We, however, must not be understood to be laying down any law that in subsequent cases, Shs.60,000/= must be given as the reasonable funeral and other expenses. Those items are and must remain subject to proof in each and every case. In the Court of Appeal in Butler vs Butler [1984] KLR 225. It was held there as follows -
1. A Persons loss of earning capacity occurs where as a result of injury, his chances in the future of any work in the labour market or work, as well as paid as before the accident are lessened by his injury. 2. Loss of earning capacity is a different head of damages from actual loss of future earnings. The difference is that compensation for loss of future earnings is awarded for real assessable loss proved by evidence whereas compensation for diminution of earning capacity is awarded as part of general damages. 3. Damages under the heads of loss of earning capacity and loss of future earnings, which in English were formerly included as an unspecified part of the award of damages for pain, suffering and loss of amenity, are now quantified separately and no interest is recoverable on them. A Brief Outline of Torts Law in Kenya @Corporate Infolink Consultancy Charles Mwaura Kamau
4. Loss of earning capacity can be a claim on its own, as where the claimant has not worked before the accident giving rise to the incapacity, or a claim in addition to another, as where the claimant was in employment then and/or at the date of the trial.
5. Loss of earning capacity or earning power may and should be included as an item within general damages but where it is not so included, it is not proper to award it under its own heading. 6. The factors to be taken into account in considering damages under the head of loss of earning capacity will vary with the circumstances of the case, and they include such factors as the age and qualifications of the claimant; his remaining length of working life; his disabilities and previous service, if any. Some Relevant Statutes
The Civil Procedure Act The Limitation of Actions Act The Law Reform Act The Government Proceedings Act The Fatal Accidents Act The Occupiers Liability Act The Defamation Act The Public Authorities Limitation Act The Vexatious Proceedings Act The Debts (Summary Recovery) Act The Foreign Judgments (Reciprocal Enforcement) Act