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A L E BUSINESS SCHOOL

October, 2013
The System of Liability, Defences and Remedies in the
Law of Tort

1. INTRODUCTION:
Including:
(a)
(b)
(c)

Definition
Torts classified as Civil Wrongs
Tort Act Cap. 134 of the Laws

II. BODY: SPECIFIC TORTS OF BELIZE


(a)
(b)
(c)
(d)
(e)

Trespass to Person
Trespass to Land and dispossession of Land
Negligence
Nuisance
Rylands v Fletcher Liability

III. REMEDIES (DAMAGES)


(i)
Requirements of Damage
(ii) Remoteness of Damages
(iii) Measures of Damages

IV. INJUNCTION AND EJECTMENT


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V. CONCLUSION (including DEFENCES)

THE SYSTEM OF LIABILITY, DEFENCES AND REMEDIES IN


THE LAW OF TORT

I. INTRODUCTION:

(a) Definition:
An exact definition of the Law of Tort is elusive. In the book
the Province of the Law of Tort by Sir Percy Winfield the definition
runs thus: Tortious liability arises from the breach of a duty
primarily fixed by the law; such duty is towards persons generally
and its breach is redressible by an action for unliquidated
damages. In Clerk and Lindsell on Tort 14 th Edition the writers
state that, to the above definition, they would add a rider. That is,
that an alternative remedy for recovery of possession mat be
appropriate in a few cases, such as detinue and ejectment, to
prevent that continuance or anticipated commission of a tort.

(b) Torts Classified as Civil Wrongs


The law of tort therefore is concerned with the redress of a
whole set of civil wrong. Like the criminal law, the law of tort
serves the related purposes of satisfying demands for retribution
against wrongdoers and of meting out punishment to them. The
law of tort also serves to deter potential wrong doers. The law of
tort also provides the function of providing compensation to those
who are injured by the activities of others.
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The issue of compensation has received increased attention


and it has become less important whether the defendant was at
fault or was engaging in socially undesirable conduct. The key
factor is whether the plaintiff has been damaged by some activity
engaged in by the defendant. In fact this focus on the plaintiffs
injuries has led to the development of the modern forms of strict
liability. In strict liability, the defendants conduct is accepted as
exhibiting no moral fault and may even be socially desirable.
Strict liability, however, still only applies to a few limited areas of
the law of tort. In most situations however the mere fact that the
plaintiff has been injured as a result of the defendants activities
is not enough to establish that the defendant was guilty of some
type of fault.

(d)

Tort Act Belize

The Tort Act, Chapter 134 of the Laws of Belize, 1980 sets out
the law concerning the law of tort as dealt with in Belize. Since
1865 the common law was received in Belize from the United
Kingdom so the case law of the United Kingdom applies to Belize.
The Torts Act includes, inter alia, sections on contributory
negligence, when action lies for causing death and how damages
are assessed.

II.

SPECIFIC TORTS
(a) Trespass To The Person

The security of a mans person, which is the most


elementary of civil rights, may be directly contravened by actual
violence inflicted or menaced or by deprivation of liberty. There
are accordingly three kinds of trespass to the person. There, is
battery, assault, and false imprisonment. Battery is the direct
application of any physical force to the person of another. In the
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case of Dodwell v Burford (1670) 1 Mod. 24 it was stated that


anything that can be called a blow, whether inflicted with hand,
weapon or missile is a battery. The liability in respect to trespass
arises either from intention of tortfeasor or the tortfeasors
negligence. The remedy for one who is liable for battery is
damages in the form of monetary compensation.
In the case of Rudolph Anderson v Santiago Castillo
Hospital Ltd. And Dr. Arturo Lizano Action No. 307
Supreme Court of Belize the plaintiff sued in a action of trespass
to the person. In that case Mr. Anderson presented himself to the
defendant hospital on 21 st March, 1985. He complained of cardiac
problems. About two days later he found himself at Rockview
Hospital, a mental asylum. He says that this was brought about
as result of trespass against his person, assault and being
wrongfully imprisoned. The Hospital for its part denies all saying
that he was properly treated and, given his behaviour at the
defendant hospital, his transfer to the Rockview Hospital was
warranted.
Justice Nathan held that
(a) The defendant Hospital was wrong in having Anderson
dispatched to the
Rockview Hospital and whatever consent it thought it might
have obtained was insufficient since Mr. Anderson was not
insane; and
(b) That Anderson was imprisoned against his will; and
(c) Strapping Anderson to effect his transfer from Santiago
Castillo Hospital to Rockview Hospital amount to an assault.
(b) Trespass to Land and Dispossession of Land
Trespass to land consists of any unjustifiable intrusion by
one person upon land in the possession of another. And the
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person who may sue in respect to trespass to land is the person in


possession of land. A tenant in occupation can sue, but not a
landlord. A person in possession can sue although he neither is
the owner nor derives title from the owner. And possession
means the occupation or physical control of land. There need be
no damage to the land for one to succeed in law for trespass.
It is a trespass to invade the air-space above land. In the case
of Kelsen v Imperial Tobacco Co. (of Great Britain and
Ireland)Ltd. 1957 2Q. B. 334 an advertising sign erected by
the defendants projected some four inches into the air-space of a
neighbouring occupier. McNair J. held this to be a trespass and
not a nuisance granting a mandatory injunction for removal. In
the Canadian case of Mann v Sauloner (1959) 19 D.L.R. (2d)
130 the defendant constructed a fence as straight as a die on
his boundary but three years later weather conditions had caused
it to sag very slightly over the plaintiffs property. It was held that
this incursion, not being a direct projection of the fence by the
defendant was not trespassory, but at most a nuisance on the
analogy of incursion by roots and branches. Clerk & Lindsell on
Torts, 14th Edition, states thus about trespass: while trespass
demands a direct infringement of the plaintiffs possession, an
indirect infringement does not amount to trespass, though it may
otherwise constitute a wrong.
(c)

Negligence

The term negligence itself has three connotations: (i) a


careless state of mind (ii) careless conduct and (iii) a tort in itself.
There is no action in negligence unless there is damage. The
cause of action accrues as soon as damage is inflicted, whether
the plaintiff is aware of it or not. The damage may be inflicted as
a result of a careless state of mind of the tortfeaser or careless
conduct by the tortfeaser. That is where the negligence would lie.

The locus classicus in the law of tort in respect to negligence is


the case of Donoghue v Stevenson (1932) A.C. 562. This is
the case which established the neighbourhood principle. In this
case a bottle of ginger beer sold by the manufacturer to a
wholesaler and by him to a retailer was consumed by a person
who had no contractual relation with the manufacturer and the
question was whether the manufacturer owed to the consumer a
duty to exercise care in the making of the ginger beer. It was held
that the manufacturer did, because the manufacturer must have
contemplated that the ultimate consumer of the ginger beer
might be injured if proper care was not taken, so long as there
was a probability of an intermediate examination. In that case
Lord Atkin stated the principle thus: The rule is that you are to
love your neighbor becomes in law, you must not injure your
neighbor; and the lawyers question, who is my neighbor?
receives a restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably for see would
be likely to injure your neighbor.
Who then in law is my
neighbor? the answer seems to be persons who are so closely
and directly affected by my act that I ought reasonable to have
them in contemplation as being so affected when I am directing
my mind to the acts or omissions which are called in question. In
the tort of negligence therefore for liability to exist it has to be
established that the tortfeaser had a general duty of care to
observe in relation to the victim. In negligence the words which
one must bear in mind to establish liability include forseeability
and carelessness.
Since Donoghue v Stevenson (1932), Home Office v
Dorset Yacht Club (1970) (where it was held that the Home
Office were liable for damage caused by borstal trainees (i.e.
young offenders) who had escaped from a camp on an island off
Poole Harbour owing to the negligence of the staff in charge of
them, and had attempted to make good their escape by seizing a
yacht ) and Anna v Merton London Borough Council (1977)
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the courts have developed a more restrictive three-part test


which was applied by the House of Lords in Caparo Industries
Plc. v Dickman (1990) I All E.R. 568. The test involves a
consideration of the following conditions when considering
whether a duty of care exists:(a) the damages must be foreseeable
(b) there must be a sufficiently proximate relationship between
the plaintiff and
the defendant; and
(c) the court must be satisfied that it would be just and
reasonable to impose a
duty of care
In this case (Caparo Industries Plc. v Dickman) the plaintiffs
sought damages from the defendants after making a successful
take-over bid for a company whose accounts had been audited by
the defendants. The plaintiffs alleged that the accounts had
seriously overvalued the company, that they had made their takeover bid in reliance on those accounts, and that they had thereby
suffered serious financial loss. The Court of Appeal had held that
an auditor did not owe a potential take-over bidder any duty of
care, as there was no sufficiently proximate relationship between
them. The House of Lords went further. Their Lordships held that
an auditor would not ordinarily owe any duty of care either to
potential future investors, or even to existing shareholders of the
company (as opposed to the company itself). It was held that an
auditor owes such a duty of care only if:
(a) He knows (or must be assumed to know) that his statement
will be communicated to the plaintiff, either as an individual or as
a member of an identifiable class, specifically in connection with a
particular transaction; and

b) If he knows that the plaintiff is likely to rely on it for the


purpose of deciding whether or not to enter into the transaction.
A number of more recent cases consider the question of when
it may be just and reasonable to impose a duty of care on a
defendant for perfectly foreseeable damage.
In Capital &
Countries Plc. v Hampshire County Council (1997) 2 All
E.R. 865 the Court of Appeal held that a local authority was
accordingly liable for the act of a senior officer in its fire service
who had, for some reason, switched off the plaintiffs sprinkler
system, causing a fire to spread catastrophically out of control,
totally destroying the plaintiffs business premises.
Another
recent case in which public policy considerations loomed large
was X and Another v Bedfordshire County Council (1995) 3
All E.R. 353 in which it was held that it would be prejudicial to
the proper operations of a social services authority to impose a
duty of care on them in respect of their functions in protecting
potentially at risk children.
In the case of Anthony Barnett v Belize Brewing Co, Ltd.
Civil Appeal No. 11 of 1982 Court of Appeal of Belize the
appellant Anthony Barnett purchased a bottle of Belikin Stout
from Albert Marsden. The appellant alleged that a slimy thing
resembling a toad was in the bottle. The Court of Appeal decided
that the manufacturers owed the appellant a duty of care so his
appeal was allowed. He was awarded $750.00 plus cost of court.

(d) Nuisance
The essence of the tort of nuisance is a condition or activity
which unduly interferes with the use or enjoyment land. Nuisance
is an act or omission which is an interference with or disturbance
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of annoyance to a person in the exercise or enjoyment of (a) a


right belonging to him as a member of the public, when it is a
public nuisance or (b) his ownership or occupation of land or some
easement, profit or other right used or enjoyed in connection with
land, when it is a private nuisance. A public nuisance is a criminal
offence and is an unlawful act or omission to discharge a legal
duty, which act or omission endangers the lives, safety, health,
property or comfort of the public or in which the public are
obstructed in the exercise or enjoyment of any right common to
all the Majestys subjects. This definition is found in the Criminal
Code (Indictable Offences Bill 1879 at Section 50.
Our concern therefore will be with private nuisance. A private
nuisance may be and usually is carried by a person doing on his
land something which he is lawfully entitled to do. His conduct
only becomes a nuisance when the consequences of his acts are
not confined to his own land but extend to the land of his
neighbor by (1) causing an encroachment on his neighbours land,
when it closely resembles trespass (2) causing physical damage
to his neighbours land or building or works or vegetation upon it
or (3) unduly interfering with his neighbor in the comfortable and
convenient enjoyment of his ( i.e. neighbour ) land.
Nuisance in the first kind in the nature of encroachment occur
as in the case of Fay v Prentice (1845) 1.C.B. 828 where a
man built on his own house a cornice which projected over his
neighbours garden so as to cause rainwater to flow thereon as in
Smith v Giddy (1904) 2 K.B. 448 where a mans trees
overhung his neighbours land and as in Butler v Standard
Telephones and Cables Ltd. 1940) 1. K.B. where the roots of
a mans trees grew into his neighbours land.
Nuisances of the second kind which is causing physical
damage to land or to something erected or growing upon it occurs
as in Bennetts v Honroth (1959) S.A.S.R. 171 where a man
paved a drive leading to his private garage diverting storm water
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to neighbouring land or where as in Hurdam 1 N.E. Ry (1878) 3


C.P.D. 168 a man maintained a mound of earth and other
artificial erection on his own land which caused damp to enter his
neighbours land.
Nuisance of the third kind is causing an interference with the
enjoyment of land are, for example, as in the case of Walter v
Sefe (1851) 4 De G & Sm, 315 where the plaintiff created
stenches by the carrying on of an offensive manufacture or as in
the case of Crump v Lamber (1867) 15 L.T. 600 where the
defendant caused smoke or noxious fumes to pass onto the
plaintiffs property.
The distinction between negligence and nuisance is twofold.
Firstly, in negligence the plaintiff must prove that the defendant
was under a legal duty of care to him and in breach of that duty.
In nuisance it is necessary to show that a legal duty of care is
owed and there is a breach. The person who creates a nuisance
is liable even if he has taken reasonable care. Secondly, the tort
of negligence protects proprietary and personal interests,
whereas private nuisance is confined to proprietary interests in
land and only the owner or occupier of land affected can sue.
With regard to taking legal action for nuisance it is the person in
possession or occupation of land affected who has the locus
standi to sue.
(e) Rylands v Fletcher Liability
The case of Rylands v Fletcher can be found in the following
law report: (1868) L.R. 330. In Rylands v Fletcher water from
the defendants reservoir flowed into the plaintiffs mine. The
defendant was held liable. The principle in Rylands v Fletcher
has been termed the wild beast theory Blackburn J in that case
said:we think that the true rule of law is that the person who for
his own purposes brings and collects and keeps there anything
likely to do mischief if it escapes must keep it in at his peril, and,
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if he does not do so, is prima facie answerable for all the damage
which is the natural consequences of its escape. The rule is
restricted to circumstances where the defendant had made a nonnatural use of land.
In Read v Lyons (J) & Co. Ltd (1947) A.C. 156 the plaintiff
was employed in the defendants munitions factory and was
injured there by the explosion of a shell. No allegation of
negligence was made against her by the defendants. The basis of
her claim was that the defendants carried on the manufacture of
high explosives shells knowing that they were dangerous things.
The House of Lords held that the defendants were not liable, on
the ground that the rule in Rylands v Fletcher does not apply
unless there has been an escape from the defendants land to a
place outside occupation or control of something dangerous in the
sense that, if it escapes, it will do damage.
In Rylands v Fletcher the person liable is the owner or
controller of the dangerous thing. If he brings or collects it on
land, he is liable although he is not the owner or occupier of the
land, but has merely a license to use or enter upon it. If he brings
in on the highway and it escapes and causes damage he is
similarly liable. The occupier of the land from which it escapes is
also liable if it is brought or collected on the land for purposes or
with his permission but not otherwise. The exceptions to the rule
in Rylands v Fletcher are the following:
(1) The act of God (2) the act or default of the plaintiff (3) the
consent of the plaintiff, (4) the independent act of a third party
and (5) statutory authority. In any of the above-mentioned
circumstances the defendant will not be liable as he can use any
of the above as a defence.

III. REMEDIES (DAMAGES)


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(a) Requirements of Damages


When a tortfeasor is found liable to a plaintiff the court
institutes action which are referred to as remedies. Where A
commits a battery against B the remedy is in damages.
Damages mean monetary compensation. In most actions in the
law of tort the remedy is by way of damages. Remoteness of
damages refers to whether or not liability can be found in respect
to the defendant where the, damage suffered by the plaintiff by
an act of the defendant is far removed from what occurred to the
plaintiff. The word damage is therefore used to mean two
different things. A damages Bs car. This means that the car
needs to be repaired. If A sues B and is successful the court
award damages (i.e. monetary compensation) against B.
Therefore for someone to be made liable to pay monetary
compensation there is the requirement of damage which is
caused by the defendant.
(b) Remoteness of Damages
The damage caused by the defendant must not be remote. In
the case of Cattle v Stockton Water Works Co. (1875) L.R.
10 Q.B. 453 a leak from the defendants water pipe saturated an
embankment in which it was laid. When the plaintiff under a
contract with the landowner, attempted to tunnel through the
embankment, his work was impeded by the water and he lost on
the contract. His action for this loss was dismissed because the
law does not recognize such damage, but the court expressed it in
terms of remoteness i.e. The proximate and direct consequences
of wrongful acts. In the Wagon Mound No. 1 (1961) A.C. 388
it was held that the foreseeable damage from spilling a quantity
of furnace oil into a harbor was the fouling of offshore
installations, but that fire damage to them was not foreseeable.
The damage cause to the respondents wharf and equipment was
held not to be foreseeable and therefore the appellants were not
liable in negligence.
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(c) The Measure of Damage


Damages i.e. (monetary compensation) is divided into general
damages and special damages. Special damage is used to signify
that damage which the plaintiff must prove in certain cases as
part of his cause of action. For example, in a personal injury case
special damage would be medical expenses, cost of
transportation to and from a hospital, cost of wheel chair and
such similar expenses. General damages are those which a court
decides based on the facts of the case and the principles
established by statue and case law. General damages in a
personal injury case are, among others, pain and suffering, loss of
amenities, and prospective loss of earnings. The measure of
damage thereof is the total award of special and general damages
measured by established principles in law.

IV. INJUNCTION AND EJECTMENT


Remedies other than damages in the law of tort include the
remedy of injunction and the remedy of ejectment. In the case of
ejectment this remedy would be applied for the recovery of
possession of land where the court would order ejectment of a
trespasser. The remedy of injunction is an order from the court
prohibiting the defendant from doing some act or in the case of a
mandatory injunction order the defendant to do some act. The
rule is that torts of all kinds may be restrained by injunction
where it is just or convenient for the court to make such order.
In the case of Wandsworth v Cooper (1970) 1 Ch. 495 an
injunction was granted to restrain the defendant from obstructing
the plaintiffs access to a bungalow of which he was the occupier,
in contravening of Section 32 (1) of the Rent Act 1965. The
plaintiff had no proprietary interest in the bungalow, but the
section made it unlawful for the defendant to enforce his right of
possession against the plaintiff otherwise than by proceedings in
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the court and the defendant thus committed a tort against the
plaintiff in respect of which an injunction would issue. In the case
of Thorne v British Broadcasting Corporation (1967)
1W.L.R. 1104 on the other hand, the Court of Appeal held that
no injunction could be granted, at least at the suit of a private
individual, to restrain breaches of the Race Relations Act, 1965,
Section 6, for that section created only a criminal offence.
The grant of an injunction is discretionary. There is no
complete list of special circumstances depriving the plaintiff of his
prima facie right to an injunction which can be drawn up but
consent to the acts complained of, at least until withdrawn is
clearly sufficient and the court will not permit a man, knowingly,
though but passively, to encourage another to lay out money
under an erroneous opinion of title. When an injunction is granted
the plaintiff must always give an undertaking as to damage.

V. CONCLUSION
Whether the tort system in general operates to further justice.
One must concede that society as it presently is, that is to say,
if no law existed, would be in total chaos. As regards civil wrongs
the existence of the law of torts creates a system of justice in
furtherance of a society wherein human beings can dwell
together. If justice is the utilization of sanctions of the law to
punish what is wrong and what is right then the law of tort is of
utmost importance. In the criminal law it is the state which seeks
remedy. In the law of tort it is the individual who seeks remedy.
Some of the remedies available are described in this paper. The
law of tort may not be free from fault in terms of individual
expectation but as a system of law to right civil wrongs between
individuals together with other branches of the law operates
effectively in the furtherance of justice.
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The law of tort does, as a system of law in general, enhances


the operation of the justice system. Not all persons who are
accused are in fact tortfeasors and so therefore if is justifiable
that the law of tort provide defences to deserving parties. The
defenses in the law of tort are volenti non fit injuria (no wrong is
done to a person who voluntarily consents to undergo it),
necessity, mistakes, inevitable accident, statutory authority, selfdefence, Act of God, Act of State and contributory negligence. If a
person is injured as a result of normal sporting activities, whether
he is a player or a spectator, he has no cause of complaint
because he is volens (i.e. a party acting willingly).
Necessity is a defence which is pleaded when a tortious act is
done intentionally to avoid a greater harm being done to the
defendant himself, to a third party or to the Realm. The defence
will succeed if the harm or damage done is reasonably justifiable
having regard to the circumstances of the case. Mistake would
only operate in circumstances such as malicious prosecution or
false imprisonment, otherwise, the law does not accept either a
mistake of law or fact as a defence in tort. Inevitable accident is a
good defence where it can be shown that an accident could not
have been prevented by any reasonable precaution, care or
foresight. In Stanley v Powell (1891) 1 Q.B. 86 the plaintiff
and defendant were both members of a pheasant-shooting party.
The plaintiff received injuries from a pellet fired in a proper
manner by the defendant when it glanced off a tree and struck
the plaintiff. The court held that the defendant was not negligent.
The plaintiffs injury was accidental and the action for damages
for trespass to the person must fail. Contributory negligence is
a partial defence in that the plaintiff contributed to his mishap. In
Froom v Butcher (1976) Q.B. 286 the defendant negligently
collided with the plaintiffs car. The plaintiff however, had not
been wearing a seat belt and was thrown through the windscreen.
The plaintiffs damages were reduced by fifteen per centum,
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because he was found to be contributorily negligent in not


wearing a seat belt.
In the case of Revill v Newberry (1960 1 All E.R.. 291 the
plaintiff was shot and injured by the defendant, an elderly man,
whilst trying to break into and steal from the defendants shed.
Hearing the plaintiffs attempt to break into the shed, the
defendant fired blindly through the shed door. He was held to
have used excessive force in the circumstances, and thus in
breach of his duty of care to the plaintiff under the Occupiers
Liability Act 1984 or at common law. The Court of Appeal,
nevertheless, held that the plaintiffs damages should be reduced
by two-thirds, because of his own culpability, which was deemed
to be contributory negligence. The defence of Act of God may
be utilized where damage is caused by unforeseeable natural
causes.
The fact that a person against whom an allegation is made is
allowed to defend himself against his accuser is important in the
furtherance of justice and the defences clearly show that in the
law of tort such a system is available to the alleged tortfeaser.
The tort system in general do, as can be seen from a perusal of
this paper, in general do operate to further justice in terms of how
liability is created, and what defences and remedies are available
within the system.
Prepared :

Cecil

Ramirez
Attorney-At-Law
1st October,2013

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M.