Law of Tort
- Meaning of law of tort
- Elements of tort
- General defences of tort
- Parties to tort
- Remedies available for tort
NATURE OF LAW OF TORT
Definition of tort; is an act which causes harm to a determinate person ,whether intentionally or not , not being a breach of duty arising out of personal relations or contract , and which is either contrary to law or an omission of a specific legal duty or a violation of an absolute right.
Tortfeasor
The person who has committed a tort, i.e. violated the legal right of another person is called Tortfeasor. If the person is found to be guilty, he will have to compensate for the damages.
If two tortfeasor commit a tort independently, they are called independent tortfeasors. If they commit a ‘tort’ together, they are called joint tortfeasors. The latter can be sued as a group or individually.
Nature of law of tort
Torts are essential for a society to exist peacefully. Each one of us have some duties towards other human beings. These duties are fixed by law. All persons have a duty not injure like or not to do things that disturb others unfairly. Others also have those duties towards us and it is our right to expect them to fulfill them. The torts exist to safeguard this right. Torts maintain the balance between the rights of a person and his duty towards others. Most of the torts law comes from common law (judge-made law).
Functions of law of tort
- Compensate persons injured by civil wrongs by compelling the tortfeasor to pay damages occasioned by his tort.
- Determine rights between parties to a dispute. A party to dispute may bring an action for a declaration of his right; once the court makes such a declaration the rights of parties are determined.
- Prevent continuance or repetitive of harm when the injured party complains of a continuous harm or injury likely to be repeated the injured party may be granted an injunction to prevent continuous of such a harm
- Protect certain rights recognized by law and granted by the constitution
- Restore property to its rightful owner where property have been wrongfully taken or otherwise dealt with contrary to the rights of the owner
Malice in tort
Malice means Ill-will or desire to cause harm. In legal terms means- wrongful act which is done purposely to harm or to injure someone without lawful excuse. In tort intention or motive for an action is generally irrelevant. The general rule is that a bad intention does not make a lawful action as unlawful. Similarly an innocent or good intention is not a defense in tort. Malice is not a tort itself but is an important element in determining the gravity of a wrongful act. E.g.malicoius prosecution, malicious falsehood, defamation conspiracy etc
Nature of tortuous liability
Every person is under a duty to compensate for his wrongful acts which have resulted into injury to another person. Plaintiff must prove that they have suffered harm and has been violation of his legal right. Some civil wrongs are actionable others are not even if damages were incurred; remedy is some cases in tort depend on two principles.
- Damnum sine injuria – means harm without legal injury This is where there is actual harm without violation of their legal right and, no legal remedy at all. e.g. Mogul Steamship Co. VS McGregor Gow Co 1982.
- Injuria Sine Damno; this is where a person suffers violation of his legal right without any actual loss or damage sustained by him he has a remedy .these are cases which are actionable per se(without prove of damage )Ashby vs. White
The fault principle
Most torts are based on fault principle. It is possible to establish some faults from wrongdoers before he can be liable. A person is said to be at fault if he has failed to live up to some ideal standards of conduct set by law .Three elements are relevant in the determination of fault; these are;
- Intention- this is where a person does an act desiring the consequences.
- Recklessness-an act done without caring whatever the consequences might be.
- Negligence- he ought to have foreseen consequences of his act and avoid it but does not avoid it.
GENERAL DEFENSES IN TORT
When sued for tort the defendant has following are defenses available;
Volenti non fit injuria/voluntary assumption of risk.
This where defendant pleads that;
Plaintiff consented to the act he complains of. The plaintiff consent may be expressed or implied from his conduct. Before Volenti can be used as defense it must be proved that;
- Plaintiff was at the material time was aware of the nature and extent of risk involved
- Plaintiff voluntary assumed the risk of whatever consequences might follow.
Volenti non fit injuria means no injury can done to a willing person e.g.
- Football player cannot complain of injuries while playing football.
- Patient operates on when he dies cannot complain surgeon.
- Passenger injured when driven was under influence alcohol and he knew it.
This defense depends on circumstances of each case. It is not available in rescue cases or involuntary action.
Inevitable accident– this is an accident that cannot be prevented by ordinary care, caution and skill. Occurs where there is no negligence on the part of the person whose act is complained against.
Act of God-it is also an inevitable accident caused by natural forces unconnected with human beings and which cannot be controlled by any human. They are not actionable in court.eg earthquakes, floods, storms thunder, etc
Necessity– sometimes a person is forced to interferes with rights of another person so as to prevent harm to himself or property this defense is based on the principle the “necessity of the people is the supreme law” e.g. a person about to be short uses another as a shield, a hungry person stealing food. This defense is difficult to maintain rarely allowed by court. The general rule is that no person should interfere with a person or his property of another. It is only applied on urgent situations of imminent danger.
Self-defense-a person threatened or attacked by use of force is entitled to defend himself with reasonable force. Force may be used when it is necessary otherwise the person claiming to be attacked might find himself liable to his alleged attacker. Thus a person attacked by a fist may use lesser force .if he responds with panga or spear or gun the force used is unreasonable. Reasonable force may be used to protect property by an occupier of premises
Mistake; the general rule is that mistake is not a defense in law whether of law or opinion, but can be applied when there is no other available defense. It may be relevant in some exceptional circumstances such as, malicious prosecution false hood, false imprisonment and deceit
Statutory Authority– this where statute authorizes a particular act the person is not liable. The person acting must do so in good faith and within the scope of the powers conferred by the statute otherwise he will not be protected. Where a person exceed the powers the compensation payable by him to the injured party cannot be more than what whose provided by statute itself.
Exemption clauses or disclaimers- torts are common law wrongs based on certain duties imposed by law. Exemption clauses may be relied upon as a defense to an action of brought in tort especially negligence.
VICARIOUS LIABILITY
The concept of vicarious liability is founded on the rule of common sense, since employees are of meager income therefore it is only fair that the injured party is allowed to recover damages from employers. Thus the master is liable to compensate the injured party. He will later make an arrangement with the employee on how to recover the money. Everyone is liable for their wrongful acts thus liability is personal. Vicarious liability is liability for one person on the behalf of the other. Vicarious liability arises when;
- There exists a master and servant relationship between the parties.
- Servant and master have been acting in the course of his employment at the material time
Who is servant? A servant is person employed under a contract of service and acts on orders of his master. Master takes control the manner in which servant works done. Once it is established that the wrongdoer was at the material time acting as a servant of some other person, and that he was then acting in the course of employment the master is always liable for any tort committed by the servant.
Course of employment; an act is said to have been done in course of employment where it is proved that the servant have been authorized or sanctioned by the master .thus where a master authorizes the servant to do a lawful act in unauthorized manner the master is liable, once the masters authority is proved it is considered as the responsibility of the master and he is declared liable for tort.
The master may expressly prohibit an act but he is still liable if the order is not followed.eg (Rose vs. Plenty) (Limpus vs. London General Omnibus 1862).A servant may do an act which is completely outside the course of employment the master is not liable e.g. where a driver may divert his usual route and cause and accident. The principle of vicarious liability may arise under the following relationships;
-Principal and the agent
-Parent and child
-Corporations and their employees
Liability of an Independent Contractor
An independent contractor is a person employed to do a certain act without being controlled by his master. He undertakes to produce given result without being controlled by the master. He applies his own initiative and discretion on the methods he is to apply. The master has no right of control over the methods used by the independent contractor thus he is personally liable.
Exceptions
A master may be personally liable for tort committed by the independent contractor under the following circumstances;
- Employer retains control on the contractor and personally interferes and makes himself a party to the act which causes.
- The Contract itself is a tort.
- Where the thing contracted to be done is likely to cause damage to others people property or is a nuisance
- It is no defense for an employer to say that he appointed an independent contractor where a legal duty is incumbent on the employer to carry out a particular work efficiently.
- Where the Rule of Ryland’s Fletcher applies.
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Rule in Ryland’s vs. Fletcher 1866
The rule states that, “the person who. for his own purpose ,brings in his land and collects and keeps there anything likely to do some mischief if it escapes , must keep it at a peril , if he doesn’t do so ,is prima facie answerable for all the damages which is the natural consequences of its escape.”
This rule is based on strict liability; it was formulated on the basis of Ryland’s vs. Fletcher case. strict liability is an exception to the fault principal .it is liability without fault there is no need to prove fault .once the plaintiff proves that he suffered damages fro defendant s wrongful act ,the defendants is liable even if he is not at fault .the defendant has some defenses available to him in some specific circumstances. Strict liability may occur in the following cases; Ryland’s vs. Fletcher rule, Liability of fire and animals. Escapes of such things like .bees, animals, fumes .smoke etc
Limits of the rule
The following conditions are applied before rule of Ryland’s v Fletchers is applied.
- Non- natural use of land; there must be non natural use of land. The defendant must have used the land in away it is not ordinarily natural the must be an artificial accumulation of things not naturally found on land.
- Need for escape; there must have been an actual escape from defendants land the non natural use of land must be accompanied by an escape of things which are the source of mischief in question.
Application of the rule
The rule may not be applicable when:
- Natural use of land
- No escape
Defenses
Certain defenses are available to defendant:
- Plaintiff fault- this is where the plaintiff has interfered with what has been collected by the defendant.
- Act of God- this is an act which is uncontrollable by human beings such as floods.
- Act of a stranger- a stranger interferes with what was brought by the defendant .
SPECIFIC TORTS
These are specific torts;
- Trespass
- Nuisance
- Negligence
- Defamation
Trespass
Trespass is” actionable per se” i.e., without prove of damage. Once it is established that trespass has been committed the plaintiff is entitled to legal redress whether he has the suffered damages or not.
There are three forms of trespass. These are;
- –Trespass to land
- – trespass to person
- – trespass to goods
Trespass to land
Trespass to land is committed where the plaintiff possession of land is wrongfully interfered with .It is the fact of possession rather than ownership that is important. The plaintiff may be anyone in possession of lands either a tenant or the owner of the land. Trespass of land may be committed in any of the following ways;
- Wrongful entry-this where there is physical contract with plaintiff land however slight. It includes:
- Encroaching
- Walking through land without authority
- Sitting on the plaintiff fence
- Putting hand through the window
- Abuse of right on entry where he has been previously authorized to enter into the land to do a certain act. He may abuse by doing other acts which he is not authorized.
- Remaining on land- committed by a person who has originally authorized to enter into the land but subsequently refuses to leave thus becomes a trespasser
- Placing things on land- this is committed by placing material things on plaintiff land. It can also be committed by allowing substances like smoke noxious substances come into contact with plaintiff’s land this kind of trespass is similar to nuisance but there are a few differences. These are;
- Trespass injury is direct since it affects the plaintiff’s possession but in Nuisance the injury is indirect since it is the convenience, comfort, enjoyment of use of land which is affected.
- In trespass it is the possession which is at stake while in Nuisance it’s the enjoyment of use of land at stake.
- Trespass is actionable per se but Nuisance is actionable on proof of damage.
Continuing trespass
This is where an act of trespass continues without the trespasser avoiding i.e. where the trespasser places material things on land and fails to remove them. Where there is continuous trespass the plaintiff may bring a number of actions against the defendant so long as the trespass continues and the plaintiff continues to suffer thus there is always s a fresh course of action.
- Trespass by relation back
The plaintiffs possession of land relates back to first time he acquired the right of possession of land .Therefore he my sue any person who committed the an act of trespass before he became the possessor . The plaintiff right of action is based on a title which he legally relates back to an earlier period .It is based on the doctrine of relation back.
Is trespass A Crime?
Trespass to land is Civil Wrong, arises to criminal proceeding if someone enters land with intention to commit crime like stealing goods.
Defenses in trespass to land
- Prescription- land acquired by possession is said to have been acquired by prescription .the new owner may plead right of prescription as defense to an action brought by previous owner to recover land. e.g. common grazing
- Act of necessity- may be pleaded as a defense to an action of trespass to land e.g. entry to land to put off fire
- Statutory authority- where the authority is conferred by law or court order e.g. authority of court broker
- Entry by license- An entry authorized with license authorizes the plaintiff it is not actionable unless the authority is
- Involuntary trespass- this is where the trespass is involuntary e.g. where the horse may run away when the defendant is riding it.
Remedies
- Damages-the plaintiff may recover money in compensation from defendant. the extent of damages will depend effect on defendants act.
- Ejection-A person is entitled to use reasonable force to defend his property .Where a person may enter into the plaintiff’s land he may be ejected by use of reasonable force. Unreasonable force entails liability for assault.
- Action for recovery of land- A person is entitled to bring action of recovery of land from plaintiff .the court may order recovery of land wrongfully taken to the defendant and where it has been wrongfully disposed.
- Injunction may be obtained to ward off a threatened trespass and to prevent continuous trespass.
- Distress damage peasant; this is a special remedy available to the owner of the land. This is a right to seize and retain trespassing cattle until the owner pays for it. But entitled to sell the animals in case the owner refuses to collect them. This right can be exercised at time when cattle actually trespasses cannot be detained later.
Trespass to person
It is any direct inference with someone. It’s actionable with prove of damage .It includes;
- Assault; it is conduct or threat of violence to another that puts someone in real danger there must be means of carrying out the threat into effect .it must be intentional
Examples;
- Holding a fist
- Shaking a stick when near a person’s able to heat them
- Flourishing a sword at near distance it would be possible to hurt.
- Pointing a gun when loaded
- Battery; It is actual striking of another person or mere touching in rude manner. Force may be applied directly or indirectly .Every bodily contact is not battery .the party’s intention and circumstances must be taken into account.
Examples;
- Pouring water
- Touching a person in rude manner
- unwanted kissing
- Spat on the face
- Hitting
- False imprisonment; is the deprivation of freedom without lawful justification.
Judge Coleridge defines it,” as every confinement of persons whether in common prison or private house or in stock, or forcible detaining one in public streets.”To constitute false imprisonment the following elements must be available;
-Total restraint of liberty of a person without lawful excuse.
-Right of liberty of a person is violated.
Examples
-Locking someone whose exit is locked
-Surrounding a person until Impossible to leave.
-Threaten person if they move where they are they will shot.
False imprisonment without knowledge
It is possible for someone to be wrongfully imprisoned without his knowledge. He can maintain an action for false imprisonment if even without suffering any damage. E.G. Kamau is asleep. Kimani locks the door and open it before Kamau wakes up .if Kamau comes to know the door was locked him can sue for false imprisonment. The length of time of imprisonment is immaterial, but can be used to gauge the extent of damages to be claimed by the plaintiff.
Defenses in Trespass to persons
- Parental authority- a parent has right to discipline his child but to a reasonable extent so long as its reasonably done. Similarly a teacher has authority to punish a pupil .This authority has been delegated to them by parents .The punishment must be reasonable.
- Judicial authority- judge has authority to order imprisonment to persons who is guilty of crime or tort. He may order corporal punishment to a criminal,
- General defenses- A defendant may rely on general defenses such as;
- Self-defense
- Volenti non fit injuria
- Statutory authority/ legal authority- may be pleaded by defendant who is entitled to use reasonable force to prevent force able entry into his land and reposes himself his land or goods wrongful taken.
REMEDIES
- Damages– Amount of damages will depend on the circumstances of each case considering injury suffered and time of imprisonment
- Habeas corpus– it is a remedy for false imprisonment. The court directs a person who is in custody to be produced before the High Court for the alleged tort or and be freed if there is no sufficient ground of detaining him.
Trespass to goods
This is where there is wrongful interference with another person’s goods which are their possession. the act must be intentional. The plaintiff must be the person in possession of or immediate possessor of goods
Interference may be:
- Removing goods from one place to another.
- Using goods- wearing ones clothes
- Destroying or damaging goods
Elements of conversion to goods
Plaintiff must have proven that:
- At the time of trespass he had the possession of goods either actual or constructive.
- His possession had been wrongfully interfered. or disturbed
Kinds of trespass to goods
- Trespass to chattel/goods.
- Detinue
- Conversion
- Trespass to chattel or/goods- based on possession. It consists of interfering with goods which are actual constructive possession to the plaintiff. Physical contact is not necessary e.g. to drive cattle away.
- Detinue is wrongful withholding goods of another. It lies for specific recovery of detained goods. The goods should be specifically delivered to him. The possessor can only sue if borrower has refused to return goods should show evidence of refusal.
- Conversion- where a person is entitled to possession of goods can maintain an action for a conversion against anyone who uses his good inconsistently against his right. Act of Conversion is committed in any of the following ways;
- When the property is wrongfully taken .The intention of ownership is not necessary it is enough if the interest claimed to be inconsistent with the right of the owner.
- When goods are wrongfully parted with e.g. someone sold goods to a third party even if sold in good faith without permission of the owner.
- When goods are wrongfully sold even if sold in god faith
- When goods are goods wrongfully retained
- When the property wrongfully destroyed
Things found on land and the owner is not traceable the owner of the land becomes the owner of such a property.
Distinguishing between Detinue and conversion
- Detinue is a wrong to the actual possessor of land and cannot be committed by a person in possession of goods while conversion is a wrong to the person entitled to immediate possession.
- Detinue is damaging of goods while conversion is withholding goods
REMEDIES
- Recaption- the plaintiff is entitled to use reasonable force to obtain possession of goods wrongfully taken
- Order of specific restitution- court may order specific restitution of goods if award of damages is not adequate remedy in case goods are not available in the market.
- Action for damages- plaintiff should claim full value of goods for damages for any inconveniences suffered which he was deprived of their use.
7.1.5.8 Passing off
This is a wrong of damaging business interest of another person by deceiving the public in believing that goods are of another reputable organization .This is using the name, description, trade marks, wrapping similar to another organization. Plaintiff must proof that he suffered damages.
Remedies of passing off
- Injunction- ordered to prevent continuance of act of passing off
- Return of profits- a court orders all profit made returned
- Damages- plaintiff is compensated for loss of customers.
NUISANCE
Definition; Nuisance is wrongful interference with person’s enjoyment of land or some right over in connection to it.
Nature of nuisance
Nuisance arises from duties owed by neighboring occupiers of land. None should use neighbors land or property in a way which likely to affect his neighbors use of his own land. This act may be committed in places like highways or rivers.
Types of nuisance
- Private
Private nuisance is using ones land in such an unreasonable manner to create interference with another person’s use and enjoyment of his land. It affects an individual. It can be used as an object for ground for civil proceedings for an action of damages or injunction. Forms of nuisance are; smoke, noise, gases .heat vibrations falling objects etc. Every person has aright not to be disturbed by excessive noise from neighbor; equally the neighbor has a right to make reasonable noise.
- Public
Public nuisance is act which a interferes with enjoyment of right which all members of a community are entitled to e.g. right to fresh air it affects comfort and convenience of a community residing near the source of nuisance. It affects the comfort of a class of people but not the whole public. It can be a criminal offence
Therefore an individual cannot bring an action to stop it .it should be brought by the Attorney General.
- Continuing wrong
A nuisance is only actionable when it is a continuous wrong. A disturbance or inconvenience of an isolated case will not be treated as a nuisance; only under special circumstances.
Plaintiff in nuisance
Plaintiff in nuisance must show that he had interest on land which has been damaged or disturbed so that he is entitled to damages in nuisance. Law of Nuisance protects only ordinary normal persons. A person who suffers some abnormality or disability or sensitivity has no special protection thus he cannot recover damages in nuisance. Similarly a person who has put his property or premises in a delicate trade or use cannot recover from nuisance once it is proved that he suffers from such sensitivity.
A person liable in nuisance is the occupier of premises which is the source of nuisance including a tenant. Liability does not necessarily lie on the owner of the premises.
Adopted nuisance
Is created by one person and another adopt it, the person who adopt is liable, he cannot plead that nuisance was not created by him.
Malice in nuisance- law does not allow a person to do acts out of sheer evil/ill will.
Defenses in Nuisance
- Prescriptive right- this is a right to commit private which is acquired by showing that person alleged to have committed the offense have been doing it for over twenty years. But this is not applicable in public nuisance.
- Statutory right- a person may have a this right coffered by a statute
- Consent- this is where a person expressly or impliedly allows a defendant to make unreasonable use of property he cannot later complain unless they withdraw his consent and informs the defendant.
- Triviality- the defendant may prove that the act complained of as nuisance is grossly significant and temporary in its operation.
- Reasonableness-the plaintiff may prove that act complained of as nuisance is result of lawful use of his land.
Remedies in nuisance
The plaintiff may be awarded the following remedies;
- Damages; this is the ordinary common law remedy. The damages claimed by the plaintiff are always unliquidated.
- Injunction; it is an equitable remedy and is granted at the discretion of the court if the injury is of continuing nature. Injunction may be granted in lieu of damages.
- Abatement; person is entitled to remove the nuisance himself without having prior recourse to courts .e.g. cutting branches an overhanging tree on his side. But he must give reasonable notice to the person concerned.
NEGLIGENCE
Definition; negligence is the breach of duty caused by omission to do something which a reasonable man, guided upon those considerations which regulate conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
Nature of negligence
Consist of use of ordinary care or skill towards a person to whom a defendant owes duty of observing ordinary care and skill by which the neglect the plaintiff has suffered injury to his own person or property.
Elements of proof of Negligence
In order to maintain an action for negligence the plaintiff must prove that:
- The defendant owed him a duty of care. It is the duty of everyone to take reasonable care to avoid all acts or omissions reasonably foreseeable as likely to cause injury to your neighbor. The question is who is your neighbor? A neighbor in law is a person who is closely related and directly affected by your act that you ought to have him in your contemplation.
Examples of neighbors;
Person Neighbor
Driver——————————– passengers, pedestrians
Employer—————————- employee
Doctor\hospital authority———- patient
Occupier of land——————– visitors\ tenants
Manufacturer or producer —– consumers
Accountants’ \advocates———– clients
- The defendant breached duty of care. The defendant is under a legal duty of care or obligations towards the plaintiff. If the duty of care is breached the defendant has failed to exhibit the standard of care and thus he is liable for negligence. The standard of care is the yardstick by which the conduct of the defendant is measured. The defendant should conduct himself as a reasonable man .The defendant is said to have breached the duty of care if a reasonable man in his position would not do what he did .A reasonable man is person of ordinary prudence. He is described as a” Man in the city bus”. He does not posses any special skills, attributes or qualities. If he posses any special skill then he is not a man in the city bus but a reasonable man who is supposed to exhibit higher standard of care.
- Plaintiff suffered injury to his person/property. The plaintiff must prove that he suffered damages or injuries .he can recover damages for the injuries he received if a reasonable man in defendants position ought to have foreseen that his act would result to an injury .An injury which is unforeseeable is too remote therefore damages cannot be recovered.
Fatal accident
The family members can sue the defendant if the victim of negligence is dead this action can be brought by the executor or an administrator or in the name of any member of the family.
Doctrine of Res ipsa Loquitor
Plaintiff must prove negligence by ; defendant owed him a duty of care, there was a breach of duty of care and suffered damages. In some circumstances the proof of negligence may be relive by the Doctrine of Res ipsa , “Facts speaks themselves” it is a rule of evidence. The plaintiff does have to prove negligence but according to how accident occurred there seemed to be negligence .The defendant must give reasonable reasons as to how the accident occurred. In absence of such reasons the defendant is liable for negligence.
The doctrine applies in the following conditions;
- The thing inflicting the injury must have been in control of the defendant.
- The event must be such that it could not have happened without negligence.
- There must be no evidence or explanation as to why and how the event occurred.
Contributory negligence ; is a conduct of the party injured who may have contributed to the injuries he received. Where someone suffers due to his own negligence may be partly or partly defendant fault shall be compensated. Damages would be reduced to such extent the court feels just and equitable.
Children contribution- Contributory negligence does not apply to children. An infant may receive full compensation although the conduct contributed to his own injuries when the defendant fails his duty to the infant.
Contributory negligence to the employees– Employer is liable if employee is injured due to bad condition of machines. The employer is liable for breach of duty of care .Some duties are fixed by a statute. E g. Factories act gives the details and provisions regarding the safety of dangerous machinery. Omission of such duties makes the employer liable unless he proves contributory negligence.
7.1.6.6The occupier’s liability
The Occupiers Liability Act has laid down the following provisions relating to the occupier;
- Occupier of premises owes duty of care to all visitors. Occupier should see that visitors will be reasonably safe.
- Duty of care includes the danger to the state of premises like warnings or things done in the premises
- Occupier is not liable for negligence of an independent contract provided he is satisfied that the contractor was competent and the work was done properly.
- Occupier of premises is not liable for any visitor who voluntarily takes risk. He should consider the following: children are less careful, avoid any risk of any person who visits the premises.
Defenses available to the occupier of premises
- Visitor was given warning by occupier
- Plaintiff took risk willingly.
- Occupier employed competent independent contract.
Negligent misstatements
This is where a statement misleads and leads to financial loss which a person may rely on believing that the statement is a true one but the person gave it negligently without caring whether is true or not.
DEFAMATION
Definition; it consist publication of a false statement regarding another person without lawful justification which tends to lower the reputation in the estimation of a right thinking member of society ,or causes harm or be shunned or avoided or has a tendency to injure him in his office.
Law of defamation
According to the law of defamation no person should publish false statement which adversely affects reputation of another without lawful justification. He may do so at his own risks of incurring liability for defamation
Functions of law of Defamation
- Protects a person’s reputation. Everyone has a right to a good name and no person should interfere with this right
- Protects a person’s business interest. Any false statement which tends to injure plaintiffs trade or profession or occupation is actionable in defamation.
- Maintains law and order .This is done by giving the plaintiff remedy instead of him talking law in his hand.
Elements of Defamation
In order for plaintiff to succeed in defamation he must prove:
- The Defendant published false statement.
No action can be taken on a true statement thus the statement must be false.
- Statement must be defamatory.
The words used or any other medium used by the defendant will be deemed to be defamatory if it exposes hatred, contempt, ridicule or to shunned or injures his office or trade or occupation.
- The defamatory statement must refer to the plaintiff.
The plaintiff must proof that the defamatory statement refers to him directly or indirectly (innuendo) innuendo means hidden meaning. The plaintiff may not be specifically named but he may feel that according to the words were used it is refers to him .Any right thinking member of society understands that the statement refer to the plaintiff.
The defamatory statement may be in form of effigy .cartoons etc. Once it is proved that the defamatory statement referred to the plaintiff the defendant will be held liable. It makes no difference that the defendant did not know of existence of the plaintiff. (Jones vs.Hulton) (New stead vs. London express newspaper ltd.)
- The defamatory statement must be published
Publication means making the defamatory statement known to someone else other than the person it is written to. If a defamatory matter is sealed and sent to the reader it is nit published. If it is to be opened by a secretary or wife then there is publication and the defendant is liable.
Types of defamation
- Slander
This is defamation in transient or non-permanent form i.e. by word of mouth. It’s actionable on proof of damage.
Exceptions
Slander may be actionable without proof of damage under the following circumstances;
- Where the statement imputes a criminal offense punished by imprisonment
- Where the statement imputes un-chastity on woman
- Where the statement imputes contagious disease on plaintiff.
- Where the statement imputes incompetence on plaintiff trade.
- Libel
It is defamation on permanent form. It includes anything written, tapes, film and anything subscribed to a secretary. It is actionable without proof of damage.
Differences between slander and libel
| Slander | Libel |
| Slander is mere civil wrong | Libel is both civil and criminal wrong |
| slander is in transient form | Libel is in permanent form |
| Slander must be proved | Libel is actionable without prove of damage |
Forms of defamation
- Defamation of a group or class; where the defamatory matter is made to a group of people or class is not actionable unless it affects a small class and a member of that class or group may sue. e.g. a club
- Defamation of a deceased person- it is not actionable. It is a criminal offense. Family members may sue if it injures the reputation or hurts the members of the family.
- Defamation by Innuendo; innuendo means hidden meaning. Sometimes the words used by the defendant may not appear libelous in their ordinary meaning, but may amount to defamation when the surrounding circumstances have been considered. The plaintiff should prove that the hidden meaning has libelous tendency and any reasonable man may in fact interpret the word used as libelous (Cassidy vs. Daily Mirror Newspaper Ltd).
- Sale of libelous material; when libelous material is contained in newspaper or magazine or book sale of every copy is prima facie publication. Distribution of such a material and the person involved in distributing is liable for libel.
Defenses Available
The defendant may plead that;
- Did not know material contained was libel.
- Ignorance is not due to any negligence.
- That he did not know that to believe that the newspaper did not contains libelous material
A librarian may be held liable for stocking libelous books in his library knowing it contains defamatory matter
.
Defenses in defamation
- Truth or justification;
In order to succeed in an action in deflation the defendant may prove that the statements was true .Truth is a complete defense in defamation. Half truth is also acceptable defense.
- Fair comment;
A fair comment on matters of public interest is a good defense unless it is done maliciously. Every individual has aright to comment freely on those acts of public servants which concern him and public at large but must do so honestly and sincerely. Topics on fair comment are;
-affairs of the state officials
-affairs of public institutions and social authorities
-books, pictures, and work of arts
-theatre concerts and other public entertainments
Privilege
This is where a person stands in such a relation to the facts of the case that he is justified in saying or writing what is slanderous or libelous. There are two kinds of privilege;
- Absolute privilege
Incase of any communication irrespective of being false or malicious is protected. Such statement includes
Includes;
- Statement made by parliament by a member
- Statement made in court arising judiciary proceedings
- Statement made by an officer of state in course of official duty even if it is related to commercial matters
- Professional communication between advocate and client.
- Communication between husband and wife
- Qualified privilege
Here a person is entitled to communicate a defamatory statement so long as no malice is proved on his part. It is where a person communicates a defamatory statement in discharging of a duty moral or social duty, but must be made to a person who has interest and duty to receive.
Examples
- Imposing a duty on a defendant to make a statement to third party but must not do it in with malice.
- Defendant makes a statement in defending his reputation to be a person who has an interest to hear it.
- When a defendant has an interest in making communication to a third party who has interest in receiving it.
- Communication made to a person in public position for public good.
- Fair impartial report of :
- Parliamentary proceedings
- Judicial proceedings
- Proceeding of a lawful convened meeting
- Apology
When a defendant is found guilty of defamation contained in newspaper or any other publication may offer amends in following circumstances.
- Publication was without malice or negligence
- Words were published innocently and the publisher did not know circumstances under which were understood.
- Did not intend to publish them and did not know the circumstances which may lead to refer to him.
Remedies in dfamation
- Damages
Amount of damage will depend on nature extent of circulation and status of the parties. Substantial damages would be awarded if proved defamation was deliberate and malicious. The party should mitigate damages by;
- Making full apology at earlier possible moments
- Proving that the plaintiff already had a bad reputation
- There was provocation by counter libel
- Damages were too remote
- Injunctions
The court has power upon application to issue and order of injunction to prevent the defendant to publish or circulate defamatory matter.
REVIEW QUESTIONS
- Defines the term tort ( 2marks)
- Explain essential elements of a tort (12 marks)
- Explain the general defenses in tort (14 marks)
- Explain how trespass can be committed and remedies available. (20marks)
- Explain the circumstances under which employers would be liable for torts of ;
- Employees (4marks)
- An independent contractor (8marks)
- Explain five exceptions of the rule of strict liability as explained in case of Ryland’s vs. Fletcher (10marks)
- Innocent of Kwao Town is a preacher. The Porojo Daily newspaper carried out a story about arrest of a Mr. Innocent of Kwao town, for disorderly behaviors of drinking in pub in his town. This story was true of Mr. Innocent a teacher. However, the followers of Mr. Innocent the preacher thought it referred to him and stopped attending the church services. Mr. Innocent the preacher is aggrieved by the story. He approaches you for legal advice.
- Explain the legal principles applicable in the case. (8 marks)
- Advise Mr. Innocent the preacher as to whether he has any right against the Porojo daily newspaper. (2 marks)
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Notes on law of torts