LAW DEVELOPMENT CENTRE

DEPARTMENT OF LAW AND CONTINUING LEGAL EDUCATION

DIPLOMA IN LAW: DAY, EVENING, AND WEEKEND CLASSES.

LECTURE-NOTES ON THE: LAW OF TORTS (Bulamu Mayanja, Lecturer LDC).

Introduction.

The course aims at developing students‟ understanding of elements of the various

torts and their appropriate remedies.

This intended understanding is premised on the justification that society is entangled

with prevalent civil wrongs affecting individual interests. It is therefore necessary for
the learner to acquire knowledge of the law governing torts in order to protect these
threatened interests.

By the end of the course students‟ will be able to demonstrate ability to analyze
factual situations; identify torts and tortfeasors, distinguish torts from offences; advise
on appropriate remedies as well as defences to raise against tortious claims.

Definition and nature of a tort

A tort is a civil wrong whose liability arises from the breach of a duty primarily fixed
by law; towards persons generally and is redressible by an action for un liquidated
damages. In a nutshell, the law of torts, as a branch of civil law, aims at attaining
corrective justice and distributive justice.

Foundations or premises of tortious liability.

Winfield & Jolowicz, in their authoritative book entitled, „Tort‟, 8th Edn, at page 87,
lays down three broader categories on which tortious liability may be founded.
These are:

(1) The consequence of a tortfeasor‟s act or omission, where such person is

under a legal duty to act. This category covers persons actual wrongdoers
(tortfeasors) as well as those who by reason of their special relationship with
the wrong doers may be found liable for acts and omissions of their servants,
under the principle of vicarious liability.

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 (2) Fault. Liability for fault may be attributed to the wrongful intention of the
tortfeasor, or purely on negligence of such person. Actions of strict liability are
based on fault.
(3) Resultant damage. As a general rule, the Law of Torts does not concern itself
with trivial or negligible injuries. This is what is technically known as the de
mini mis rule. Therefore, quite a number of tortious liabilities require proof
of a legal injury (suffering damage) which is directly connected to the
defendant‟s conduct.

Nonetheless, certain actions such as trespass and libel, are actionable per se
(as of right), and need not require prior proof of actual damage.
In summary, tortious liability or a right for an action on tort is founded on intention,
fault, vicarious liability, strict liability or statutory liability. These categories shall be
discussed later.

The importance of the Law of Torts.

The significance of the Law of Torts can be analyzed under the following heads i.e
the fault principle, deterrence, and responsibility.

a) The Fault Principle: Through its fault principle, the law of torts has achieved
much success in obtaining compensation to accident victims and their
respective families (dependant relatives). Thus, unlike social security,
payments under tort do not suffer limit ceilings and put into account matters
such as pain and bodily sufferings, disfigurements, loss of amenity, loss of
promotion prospects and extra expenses incurred as a result of the injury
inflicted by the defendant. What is important for the plaintiff in a tortious
claim to do is to show that the injury he suffered were caused by the
defendant‟s fault under foreseeable circumstances.

The criticism against the fault based tortious system is that it is undoubtedly
expensive to administer compared to social security. Recovery of a small claim
may be attained at colossal legal fees, let alone the lengthy litigation period.

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 b) Deterrence: The principle that a defendant wrong doer can be called upon to
pay for damages caused by his fault directly or through their servants serves
the deterrent purpose thereby preventing harmful conduct in society.
c) Responsibility: Through the corrective justice that the person at fault should
meet compensation, this has in a way fostered the duty of responsibility. This
seated idea to meet compensation to victims of civil wrongs has served as a
powerful intuitive factor in people‟s attitudes to accidents.

Distinction between a tort and a crime.

A reprehensible conduct/wrongdoing leading to the prosecution of the offender in a

court exercising criminal jurisdiction, as a crime, may at the same time be actionable
in a court exercising civil jurisdiction as a tort. It is therefore imperative to appreciate
the differences between a tort and a crime, if one is to make an informed decision
on which approach to pursue, between a tort and a crime, where a factual scenario
has arisen. The major distinction between these two terms is in the
nature/classification of these wrongs; which gives rise to further clear distinctions.

(1) Nature of wrong. A tort is a civil wrong made against an individual by a

tortfeasor to whom the law imposes a duty. On the other hand, a crime is a
public wrong committed by an offender against the state (government).
(2) Aim. The law of torts aims at achieving redressible justice in form of
compensation towards the victim of the wrong with un liquidated damages;
while that of a crime is to deter crime commission through punishment of the
offender.
(3) Parties. In a tort, the victim of the wrong will institute an action in his/her own
name as plaintiff against the wrongdoer as defendant; while a criminal wrong
will be instituted in the name of the state e.g Uganda vs Matovu Joshua, the
accused.
(4) Mode of institution of proceedings. A tort is instituted in court by acclaim
statement called a plaint; while a criminal offence is instituted by way of a
charge sheet.
(5) Burden of proof. A plaintiff has the burden of proof on his/her tortious claim;
while the state/prosecution has the burden of proof. This leaves the

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 complainant with the responsibility of testifying as a state witness, and no
more.
(6) Standard of proof. A tort, like any other civil liability is proved on a balance of
probabilities; while a crime is proved beyond reasonable doubt. Any slightest
doubt in the prosecution case is resolved in the accused‟s favour.
(7) Limitation of actions. All causes of action in tort, are subject to the law of
limitation; while an alleged commission of a crime can be raised and
prosecuted at any time no matter the passage of time, except where a statute
expressly provides otherwise e.g offences of treason, misprision to treason etc.
(8) Withdraw/settlement of actions. A plaintiff who commences an action in tort
is free to settle or compromise with the defendant. He can thus withdraw his
court action; yet public policy is against compromise of criminal cases. Any
possible withdraw of a criminal offence is done with the written approval of
the Director of Public Prosecutions (DPP) by way of a nolle proseque.
(9) Result. A tort successfully prosecuted can result in a defendant being ordered
to meet damages plus costs; while a criminal conviction can result into a
custodial sentence with or without a fine.

Distinction between a tort and a breach of contract.

Liability under a tort is premised on defendant‟s breach of a duty owed to the

plaintiff, i.e the law lays down an assumption of responsibility in circumstances in
which but for absence of consideration would be a contract. (Nocton vs Ashburton
[1914] A.C 932). On the other hand only a party who has furnished consideration
can enforce a promise under a contract.

Types/Categories of torts:

The course study will focus on a discussion of particular torts such as; Trespass to
the person, Trespass to goods, Trespass to land, Negligence, Occupiers liability,
Claims under the Law Reform (Miscellaneous Provisions) Act, Nuisances, Liability
for escape of dangerous things and the rule under Rylands v Fletcher, Liability for
dangerous animals, Defamation, and Damages.
In discussing each of the above mentioned torts, emphasis shall be put on their
respective elements, remedies and defences.

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Trespass. Trespass will be discussed under three major categories i.e trespass to a
person, trespass to goods and trespass to land.

(a) Trespass to the person. A trespass to a person involves the intentional and
direct interference with a person‟s body or liberty. It is founded on the
justification that much as government has an obligation to enforce criminal
law, through the exercise of its powers to arrest, detention and prosecution;
such powers must be balanced with the individual‟s inalienable rights and
liberties to freedom. The tort of trespass to a person may take any of the
following forms: Assault, Battery, Wrongful arrest, False imprisonment or
Malicious prosecution.
(i) Assault. An assault connotes the direct and intentional wrongful
act of the defendant which causes the claimant reasonable
apprehension (expectation) of danger.

The threat must relate to immediate use of force and not in the
future. The claimant must have reason to believe that the
defendant has the capacity to carry out the threat immediately.
Thus in Stephens v Myers (1840) 4 C & P, 349, the defendant
advanced towards the claimant with a clenched a fist after
developing a sharp misunderstanding with the claimant at a
parish meeting. His blow was intercepted by a third party before
landing on the claimant‟s body. The claimant successfully sued
the defendant under assault. It is no defence that the claimant
was courageous enough to counter the defendant‟s attack on
him. Mere use of threatening words does not necessarily
constitute an assault. (Mead‟s v Belt‟s case 91823) 1 Lew. CC184
ER 1006). However, where such words are used recklessly and
have resulted into nervous shock, an action in negligence may lie
against the defendant. In Wilkinson v Downton [1897] 2 Q.B
57, D, by way of a practical joke, falsely told C, a married woman
that her husband had met with an accident and that she was to go
with a cad to fetch him home. The effect of this upon the
claimant, who was found to be a person of normal fortitude, was
that she suffered a violent shock. Wright J, observed that the

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 defendant had willfully done an act calculated to cause physical
harm to the plaintiff‟s right to safety, and indeed caused physical
harm to her. That that proposition without more stated good
cause for the defendant‟s liability there being no justification
alleged for the wrongful act.
(ii) Battery. This is the intentional and direct application or use of
force to another person under a hostile circumstance. In other
words, it is an assault carried to its logical conclusion i.e the
striking of the plaintiff against his will. The least touching of
another in anger is a battery. A battery thus means any
intentional physical contact which is not generally acceptable in
the conduct of human life.

Defences for battery.

(I) Consent. This can operate as a defence to the tort of battery, with certain
limits. It is more applicable in cases of medical treatment. In Airedale
NHS v Bland [1993] 1 All ER 821, 881; Lord Browne-Wilkinson
observed that any treatment given by a doctor to a patient which is invasive
i.e one that interferes with the integrity of the patient, is unlawful, unless
done with express consent from the patient or his/her next of kin.
(II) Necessity. Necessity presupposes that challenging situation where one is
confronted with two evils. In such a case, necessity is a defence where the
choice taken carries the wider benefit to the victim of the battery. The
defence of necessity is increasingly by raised where medical treatment is
administered to adults without their consents. (See: Clovis Njareketa‟s
case). Also read (St. George‟s Health Care NHS Trust v S (1998) 3 All ER
763).
(III) Statutory authority. In effecting an arrest or a re- arrest, a person doing so
is authorized by the Criminal Procedure Code Act, to use reasonable
force. If such person be sued for battery, the defence of statutory authority
will be available to him/her.
(IV) Self-defence. Where a defendant receives a provocative blow from the
plaintiff, he is entitled to use reasonable force to repulse or contain such
attack, in which case, the defence will be available. But where the
defendant reacts to such attack with a savage retaliation, he will be liable on

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 battery. (See: Lane v Holloway [1968] 1 Q.B 379). The defences of
statutory authority and self-defence are also available where a defendant is
sued under assault.
(iii) False imprisonment. The tort of false imprisonment consists of
the complete restriction of the claimant‟s freedom of movement.
(Bird v Jones (1845) 7 QB 742). Such restraint must have been
made without lawful excuse or justification. (See: Patrick
Mugwanya v Attorney General HCCS No. 154/2009). In Issa
Bukenya v Attorney General [1986] HCB 67, the plaintiff sued
for false imprisonment following his arrest and detention in
police custody for 16 days before he was taken to court. It was
held that even if the arrest was lawful, the failure to produce the
plaintiff to court within 24 hours from the time of his arrest to
the time he was produced in court made such detention illegal.
His suit succeeded. The tort is actionable per se i.e without proof
of damages.

Defences to false imprisonment

(I) Acting under valid authority. A defendant authorized under a valid warrant
to arrest has no duty to satisfy himself on whether or not allegations made
against the suspect are credible, but to arrest. If then sued for wrongful
arrest and false imprisonment, he can successfully raise the defence of
authority. Equally so a private person who acts on reasonable suspicion
can arrest, without suffering any liability. (See: Charles Lubowa v Kalyango
& 3 Ors. HCCS No. 1141/1987).
(II) Justification and necessity. In Thames Valley Police v Hepburn, [2002]
EWCA Civ. 1841, Sedley LJ, observed that it is the bedrock of civil
liberties that a citizen‟s freedom of person and movement is inviolable
except where the law unequivocally gives the state power to restrict it. If a
person obstructs a police officer in execution of his duties an offence is
committed and the power of arrest arises. That, it was this and not an
implied power to detain or manhandle people who are doing nothing
wrong which gives a basis for the law to protects officers executing a search
warrant from interference.

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 The defence of necessity arises when a defendant is faced with two choices,
both of which would make him wrong nonetheless. It can thus succeed
where such defendant opts for a choice which offers a greater advantage or
cause less harm/evil in the circumstances. This defence was invoked
successfully in Austin v Commissioner of Police of Metroater polis [2005]
EWHC 480. In this case, the police while suppressing an unauthorized
demonstration involving thousands of people in central London sealed off
the area around Oxford Circus and detained hundreds of people for a
period of hours, under non-conducive conditions. Court held that the acts
of the police were not wrongful but intended to prevent serious injury and
possible death to persons for whom they were responsible. Also see:
Fernandes v Commercial Bank of Africa Ltd & Anor. [1969] E.A 482.
(III) Reasonable condition. This can be a defence where parties have a contract
and that claimant desires to take his way before fulfilling the contractual
duties towards the other. (Robinson v Balmin Ferry Co. Ltd [1910] A.C
295).
(iv) Malicious prosecution. The tort of malicious prosecution is
premised on five ingredients: (a) that the defendant prosecuted
the plaintiff, (b) that proceedings in the criminal prosecution
ended in the plaintiff‟s favour, (c) that there was no reasonable or
probable cause for the prosecution, (d) that the defendant was
actuated/driven by malice, and (e) that the defendant suffered
damage. (Yusfali Khanbhai v Wm. O‟swald & Co. & Anor. 15
K.L.R. 53; Bukenya v AG [1986] HCB 76) The damage
envisaged here may take any of the three categories, viz, damage
to the plaintiff‟s fame through scandalous accusations, damage to
plaintiff‟s person e.g where he has been imprisoned and damage
to plaintiff‟s property, e.g where plaintiff has been put to charges
and expenses. (See: Berry v BTC [1962] 1 QB 306).
 The defendant initiated a prosecution. The defendant indirectly acts through
government agents/official e.g the police, to set the official process into
motion. Normally, merely providing information to the prosecuting authority
would not be enough to give rise to liability on malicious prosecution. The
circumstances must be that facts in question could be known only to the
defendant, and this has seriously impaired the prosecutor‟s discretion where

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 the information was provided falsely and maliciously. (See: Martin v Watson
[1996] 1 A.C 74).
 The prosecution failed. The prosecution must end with the claimant‟s
acquittal.
 Absence of reasonable cause. A reasonable cause is an honest belief in the
guilt of the accused based upon a full conviction, founded upon reasonable
grounds, of the existence of a state of circumstances, which assuming them to
be true, would reasonably lead any ordinary prudent and cautious man,
placed in the position of the accuser, to the conclusion that the person
charged was probably guilty of the crime imputed. (Herniman v Smith
[1938] A.C 305).

It is therefore argued that where a prima facie case has been made out
against an accused/plaintiff, such plaintiff cannot succeed in a tort of
malicious prosecution against a complainant in a criminal.
 Malice. This refers to defendant‟s bad faith or motive other than to secure
ends of justice.

Defences to malicious prosecution. These are: acting without malice; acting on

reasonable cause; conviction of the claimant on the preferred charges; and
independent act of the prosecution.
Remedies for trespass to a person.

These include special damages, General damages and sometimes exemplary

damages.

 Special damages: These are not presumed. They are losses which are awarded
at the court‟s discretion. The claimant must plead and prove special damages
suffered before they are awarded. They arise whereby a plaintiff suffers
financial loss e.g on medical bills as a result of the defendant‟s actions, or
where he suffers loss of earnings still as a result of the defendant‟s wrongful
actions. Documentary evidence is essential though oral evidence can also
suffice.

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 General damages: These are presumed to flow from the defendant‟s conduct.
They are awarded as of right. Court will exercise discretion at fixing the
quantum.
 Exemplary damages: These are deterrent in nature and are given to serve as
an example where the defendant has acted with highhandedness towards the
plaintiff in utter disregard of his human rights. In Samuel Kaggwa Byekwaso v
Attorney General [1982] HCB 101, the plaintiff was detained for 15 months,
violently treated and sometimes denied food. Court held that he was entitled
to exemplary damages.

(b) Trespass to Goods. This involves the direct and wrongful interference with
the goods of another. The plaintiff must have been in possession of the
subject goods; though he need not be their legal owner. The claimant must
also have a right to immediate possession of the goods. There are two types of
trespass to goods; i.e conversion and detinue.
(i) Conversion. In an action for conversion of goods, a claimant sues for
the denial of his entitlement to possession of the goods; or an assertion
of a right inconsistent with his right, and not necessarily for disturbance
of his factual possession of the same. (Bwavu Mpologoma Grower‟s
Co-op Ltd v Gasston & Ors. E.A.C.A No. 9/1959). Any chattel can be
the subject of conversion. Liability on conversion is strict. What is
essential to prove is the defendant‟s intention to do the act and not the
intention to bring about the consequence. There must be an act of
some kind; an omission will not suffice. In Ashby v Tolhurst [1937] 2
K.B 242, the attendant at a car park allowed a stranger to take away the
plaintiff‟s car. The employers were held not liable for conversion.
Their servant though negligent had done no act. Other defences under
conversion include: the exercise of a right for distress, or where goods
are sold in a marker overt. Here a buyer who without notice of the
seller‟s defect in title honestly buys the goods will receive a good title as
against the claimant. The remedy for conversion is damages assessed at
the market value of the lost chattle. (Thawer v Clark 12 K.L.R 22). The
claimant is however under a duty to mitigate his loss. Also, self-help is
permissible as long as it is peaceful and does not involve no more force
than is reasonable. Finally the owner of detrained goods who claims
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 that the distress was wrongful is entitled to have the goods returned to
him provisionally upon giving such security as the law require to
prosecute his suit against the distrainer and to return the goods to the
latter, at the hearing, if the court so directs. This remedy is termed,
replevin.
(ii) Detinue. This is the wrongful withholding of the chattel of another. The
essential elements to prove are that; (a) the plaintiff is entitled to
possession, and (b) that the defendant has kept detaining the goods
after the plaintiff has made a demand for their return. (Gullen v
Parsram & Anor. [1962] E.A 159).

Defences for detinue:

 Lack of possession. Where the original taking of the property was lawful but
the same is either lost or destroyed by the defendant at the time the plaintiff
makes a demand for the return of property, lack of possession is a good
defence. (Charles Douglas Cullen v Parsram & Anor. [1962] EA 159).
 Absence of a demand. A plaintiff who fails to make a demand for the return
of the property prior to suing cannot succeed.

Remedies for Detinue.

 An order for restitution. This can be made where the property withheld under
by the defendant is still under a good state.
 Damages. These can be special, general or exemplary depending on the
circumstances of each case.

(c) Trespass to land. Trespass to land is the unjustified or wrongful interference

with the possession of land of another. In other words, it is the unauthorized
entry upon the soil of another (plaintiff). Here the law of tort jealously guards
the right of enjoyment of private property. Trespass to land is actionable per
se. It is a strict liability tort as neither mistake nor inadvertence will afford a
defence. To maintain an action for trespass to land, the plaintiff must prove
that at the time of the defendant‟s trespass, he was in actual possession of the
land or had assumed a reversionary right (right to possession as owner), of the

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 land; and that the defendant‟s interference was intentional.(Khatibu bin
Mamadi v Issaji Nurbhai 4 Z.L.R 55). For avoidance of doubt, lodgers and
domestic servants cannot commence an action in trespass, but rather the right
accrues to tenants under leases as well as registered proprietors‟ in possession.
Trespass to land is a continuing tort and gives rise to actions from day-to-day
as long as it lasts (Lutaaya v Uganda Post &Telecomunication Commission).

Defences for trespass to land are:

 Licence. This is the express authorization to enter and use ones‟ land, for
an agreed period of time.
 Justification by law. Public officers like soldiers on war, can enter ones‟
land without causing liability in trespass on government.
 Claim of right, e.g by a bonafide purchaser for value without notice.
 Good motive, e.g where a defendant enters to prevent the spread of a
nuisance to his adjoining land.

Remedies for trespass to land.

An action for:

 Recovery of land (ejectment).

 Re-entry.
 Mesne profits.
 Permanent injunction restraining the defendant, his servants and or agents
against any future trespass.
 General damages for trespass.

Negligence: (Duty and Breach).

Negligence as a tort is based on the fault principle. Negligence is the breach of a legal
duty to take reasonable care owed by the defendant to the plaintiff which results into
damage undesired by the plaintiff. The ingredients of negligence are:

(i) A legal duty on the part of the defendant to the plaintiff to exercise
reasonable care in such conduct or action within the scope of his duties.
(ii) Breach of that duty.
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 (iii) Consequential damage to the plaintiff.
According to Bowen, LJ; in Thomas v Cuartennine [1898] 8 Q.B 685,

There is no such thing as negligence in the abstract. Negligence is the neglect of

some care which one is bound to exercise towards somebody, hence there can be
no liability for negligence unless in the particular case, the defendant was subject
to a legal duty to take care. What then does duty means?
Duty means a restriction of the defendant‟s freedom of conduct and the
particular restriction here is that of behaving as a reasonably careful man would
behave in the like circumstances. The question to be determined is whether a
prudent and reasonable man would in the like circumstances have behaved in the
manner the defendant has done. Moreover, the defendant must owe this duty not
merely to persons generally, but to the plaintiff in particular.
The question whether in any particular circumstances a duty of care exists is a
question of law. There is no standard principle from which it can be deduced
that the duty of care does or does not arise.
In Denoghue v Stevenson [1932] A.C 562, Lord Atkin gave the following test as a
general guide:

You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbor. Who then in law is
your neighbor? The answer seems to be persons who are closely and directly
affected by my acts that I ought reasonably to have them in contemplation when I
am directing my mind to the acts or omissions which are called in question.
Persons using the Highway and other places frequented by the public.

Every person using a highway owes a duty of care towards other persons on the
highway. This rule applies equally to other places such as Taxi parks, Railway
stations, etc. The duty arises from the close proximity of people and things in
such places which makes it necessary for all persons to be mutually careful.
Accordingly, a person on a highway or market place is liable in negligence if he
fails to exercise due care so that some other person is injured or his property
damaged.

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 1. (Causation, remoteness ie scope of liability and Contributory negligence).
 Causation and Damage.

Where damage results from multiple causes, the courts resort to the test of „but-for
cause‟. This notion is based on the view that the defendant should be liable only to
the extent that his conduct was a condition of the claimant‟s hurt/injury.

 Proximity/foreseeability. A plaintiff in negligence must show that the particular

injury he suffered was foreseeable and that the injury was brought about in a
foreseeable manner.(See: Namyalo v Ratanshi [1968] E.A 14; Mustafa Lule v
West Buganda District Administration [1971] U.L.R 126). In Overseas
Tankship (U.K) Ltd v Morts Dock and Engineering Co. Ltd [1961] A.C 388,
court emphasized this position when it laid down the rule that the essential
factor in determining liability on negligence is whether the damage is of such a
kind as a reasonable man would have foreseen; and further that a man should
never escape liability however indirect the damage, if he foresaw or could have
reasonably foreseen the intervening events which led to its being done.
 Kinds of damages: These can be physical bodily harm and damage to
property or psychiatric injury and illness.
(a) Physical harm. The law of negligence recognizes a general duty of care
protecting the personal safety and tangible property interests of the
claimant. In MarcFarlane v Tayside Health Board [200] 2 A.C 59 the
plaintiff sued for pain and suffering she underwent when she had a scission
birth, as a result of an unexpected pregnancy following a failed vasectomy
operation carried out on her husband. Her claim succeeded in part.
(b) Psychiatric injuries and illness (Injury without impact). This category
involves primary victims as well as secondary victims. A primary victim is
one who suffers the injury after being directly involved in an accident and
is either himself physically or put in fear of injury. As a rule of law, such
victim is entitled to recover subject to the rules of causation and
remoteness of damages. (Page v Smith [1996] 1 A.C 155). In this case, a
defendant, driving carelessly, caused a collision between his car and that
being driven by the plaintiff. The latter, though sustained no physical injury
later suffered a reaction which led to a revival of an ME condition (myalgic
encephalomyelitis); which left him chronically ill and unable to work. His
suit succeeded. In Dulieu v White & Sons [1901] 2 K. B 669, the plaintiff
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 a pregnant woman was seated behind the counter of her husband‟s bar;
when suddenly a horse was driven into the bar. Fearing for her personal
safety, she suffered nervous shock and gave birth to a pre mature baby.
The defendant was held liable in negligence. On the other hand a
secondary victim is a person who suffers psychiatric injury a consequence
of witnessing or being informed about an accident, involving another. In
Alcock v Chief Constable of South Yorkshire [1992] 1 A.C 310, relatives
and friends of spectators who were crushed to death inside a football
stadium as a result of police negligence brought actions for damages based
on psychiatric illness suffered in reaction to the event. Some had witnessed
the scene at the ground while others had watched it transmitted live on
national television. Many victims suffered inability or difficulty in carrying
out normal life activities such as normal work, family responsibilities or any
activity they would have normally engaged in before the disaster. Others
underwent personality changes such as being moody, irritable
forgetfulness, frequent unprovoked outbursts of anger and
quarrelsomeness. The court laid down the test, that to succeed a
secondary victim as plaintiff had to prove that (a) his illness or condition
was caused by a „shock‟ of some kind; (b) that he either witnessed the
event directly or came upon its aftermath; and (c) that his relationship with
the victim was sufficiently „proximate‟. In Harnbrook Stokes [1925] 1 K.B
141, the defendants left their lorry at the top of a steep hill. Soon it began
to run away down the hill. The plaintiff‟s wife who had left her children
around the corner, on seeing this, developed a severe nervous shock for
fear of her children‟s safety and as a result, she died. It was held that the
defendant was liable. Contrast the above cases with Bourhill v Young
[1942] 2 All ER 396.
(c) Pure economic loss. These losses have no connection to personal or
physical harm but include financial loss or expenditure incurred as a result
of the defendant‟s negligence, interruption to an expected stream of
income such as wages or rents or failure to make gain as expected from a
valuable contract or from an expected legacy under a will. Liability on
economic loss may result from the following categories: Negligent
misstatements, Negligence in the performance of a service, Loss arising
from defects in buildings and products, Relational economic loss arising

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 from damage to property of a Third Party etc. Of these all, the law still
places greater concern on liability for misstatements as is laid down in
Hedley Bryne & Co. Ltd v Heller & Partners Ltd [1964] A.C 465; and
liability on negligence in performance of a service as laid in Henderson v
Merret Syndicates Ltd [1995] 2 A.C 145. In this case court observed that if
a person assumes a responsibility to another in respect of certain services,
there is no reason why he should not be liable in damages for that other in
respect of economic loss which flows from the negligent performance of
those services. That all what a plaintiff must prove is existence of a „special
relationship‟ between him and the defendant. The court will then impose a
duty of care on the „fair, just and reasonable‟ grounds. In Smith v Eric &
Bush (A Firm) [1989] 2 A ll ER 514, a valuer who valued a house for a
building society or local authority for the purpose of a mortgage
application for a typical house purchase, knowing that the mortgage would
probably and the mortgagor would certainly rely on the valuation, and
knowing that the mortgagor was the intending purchaser for the house and
had paid for the valuation, owed a duty of care to both parties to carry out
his valuation with reasonable skill and care. He was a professional man on
whose skill all the parties placed their reliance.

Proof of negligence.

The onus of proving negligence lies on the plaintiff. He must prove not only that the
defendant was negligent but that the defendant‟s negligence was the cause of the
injuries he suffered. This uphill task has been made easy but the res ipsa loquitor
rule.
Res ipsa Loquitor.

This is a rule of evidence, and not law. Ordinarily a plaintiff under seeking to
recover a tort of negligence has a duty to set out particular facts on the defendant‟s
negligence. Where a plaintiff is unable to do this, he will rely on the principle of res
ipsa loquitor, to establish the defendant‟s negligence. The rule simply put is that
„facts speak for themselves‟ thereby leading an inference to the defendant‟s
negligence. It is usually invoked where the thing alleged to have been the cause of
the accident was under the sole control of the defendant be it directly or through his
servant/agent. (Embu Public Road Services Ltd v Jemima Riimi [1968] E.A 22). In
16
Scott v London & St. Catherines Dock Company [1865] 3 H C 596, the plaintiff was
a customs officer doing his rounds. When he passed the defendant‟s ware house six
bags of sugar fell on him. The defendant could offer no explanation as to how the
accident happened. It was held that there was reasonable evidence of negligence. In
Byreness v Boadale [1863] 2 H C 722, the plaintiff was walking on a public street
when a barrow of flour fell from an upper floor through the window of the
defendant‟s house and injured him. It was held that the accident was prima facie
evidence of negligence to cast on the defendant the burden of showing how the
accident could have occurred if it was not by his negligence. In Walsh v Holst & Co.
Ltd [1958] 1 W.L.R 800, a building was being demolished and the plaintiff who was
walking on the road was hit on the head by a brick. There was no evidence to show
how it had happened. It was held that res ipsa loquitor operated to shift the burden
of proof on the defendant. Since the defendants were able to show that they had
exercised all due diligence, court absolved them from liability on negligence.

Defences for negligence.

 Plaintiff‟s trespass, at a prohibited place. In Vidian & Anor v British

Transport Commission [1963] 2 All E.R 860, an infant plaintiff sued for
injuries sustained while on a railway line, by the alleged negligence of the
defendant‟s servant, then driving a motor trolley. There was a prohibition
against non-staff members walking at the point where the plaintiff suffered the
injuries from. It was held that the plaintiff was a trespasser, and could not
succeed against the defendant.
 Volenti non fit injuria. This plea is to the effect that no injury is done to one
who consents. In other words it can be raised against a plaintiff who takes no
regard to the safety of his life by opting to assume an eminent danger. It is
thus a defence to: (a) actions brought by spectators injured while attending
dangerous sports; (b) actions arising from injuries to workers in specially
dangerous professions; and (c) actions brought by passengers injured by their
intoxicated drivers. In Khimji & Anor. v Tanga Mombasa Transport Co. Ltd.
[1962] E.A 419 appellants as administrators of estates of the deceased claimed
damages under the Law Reform (Miscellaneous Provisions) Ordinace, on
behalf of the decease‟s estate. The deceases were travelling on the bus of the
respondents. On reaching the bank of a swollen river, the driver of the bus on
which the deceases were travelling refused to attempt to cross. The passengers
17
 got off and transferred to another larger bus still belonging to the respondents.
Its driver made a first attempt to cross, but found it unsafe. He urged the
passengers to get off the bus but instead they urged him to continue like the
other bus in front of him which has succeeded crossing. He thus made
another attempt but the bus stuck a submerged object, killing all the
passengers on board. The respondents raised a defence of volenti non fit
injuria. In upholding the same court observed that if the passengers fully
appreciating the risk, nevertheless desired to incur it to avoid inconveniences
to themselves, they are deemed to have waived the carriers duty in relation to
a particular act and accepted the ordinary risk attendant to it.
 Success of the defence of volenti non fit injuria. In order to succeed, the
defendant must prove (a) that there was an express or implied agreement
between the plaintiff and the defendant, by the plaintiff to run a risk of injury
caused by the defendant; and (b) that the plaintiff then assumes the risk
knowingly that the loss will fall on him. (Mohamedi Mitha & Anor v Sant
Singh Jandu CS No. 574/1962 & CS No. 600/1962).
 Contributory negligence. This plea is to the effect that the plaintiff was equally
at fault; otherwise he wouldn‟t have suffered injuries. The effect of this
defence is to minimize on the defendant‟s obligation on the quantum of
damages payable to the plaintiff, as the same will be reduced to the extent of
his contribution to the occurrence of the accident/wrong complained of. In
Yosefu Musisi v National Water & Sewerage Corporation (NWSC) HCCS
No. 149/1973, the plaintiff through his next friend, sued the defendant for
injuries he sustained when he fell into a trench dug by the defendant‟s
servants. At the time of the accident, the plaintiff was aged four and a half
years. The trench was two meters long and had not been covered for the last 6
months. For the plaintiff it was contended that the defendant did not put any
wooden pieces or fill in earth yet it was near the home of the plaintiff; though
the defendant claimed to have done so on every access road and crossings.
The defendant further claimed that the plaintiff was contributory negligent. It
was held that the whole situation indicated incompetence and negligence on
the part of the defendant. They had a duty to reduce on the amount of
inconvenience and to the danger to the public to minimum levels. That in
order to find a child contributory negligent, it had to be proved that he failed
to show the amount of care expected of a child of his age. If the child was
18
 incapable of realizing the consequences of his conduct, he would be relieved
from liability on being negligent particularly if he indulges into the natural
instincts of a child of his age. In the case of Dickson v Bell (1816) 5 H & S
198, the defendant sent his servant a girl of 13 years to fetch a loaded gun,
which the defendant kept in the house where he stayed. He sent a message to
the landlord asking him to remove the priming before he let the girl have the
gun. The landlord did so but the removal of the priming was not sufficient to
render the gun safe. The girl pointed the gun at the plaintiff‟s son, a child of 8
years; and pulled the trigger. The gun went off and the child was injured. It
was held that the defendant was liable. In Phillipo Munyampirwa v Associated
Match Company HCCS No. 341/1970, the plaintiff brought a suit against the
defendant alleging negligence on the part of the defendant‟s driver. The
plaintiff‟s leg had been fractured when the defendant‟s lorry loaded with logs
of wood collided with a tree; and one of the log fell onto the plaintiff‟s leg.
The plaintiff who was a defendant‟s employee had participated in loading the
logs on the lorry and very weak ropes had been used. It was inter a lia held
that the fact that the plaintiff used old and weak ropes without demanding for
strong ropes, contributed to the injuries suffered by him. That the plaintiff was
therefore 50% contributorily negligent.
 The doctrine of alternative danger. A man may be taking reasonable care for
his own safety and later events may show that he would have been safer had
he acted differently. Where a plaintiff is suddenly put in a position of danger
by the wrongful acts of the defendant, then by the doctrine of alternative
danger, he is not required to show more judgment and self-control in
attempting to avoid danger than might reasonably be expected of him in the
circumstances. Thus what is done or not done in the agony of the moment
cannot be fairly called contributory negligence. But in such circumstances, a
person must exercise care any reasonable man would. In Yakobo Okole v
Nsubuga [1974] HCB 186, the plaintiff who was a tone-boy sustained injury
when he jumped off an over loaded lorry when said lorry staggered as if to fall
down. The defendant denied negligence, contending that the plaintiff was
contributory negligent. It was held that even if the plaintiff had jumped off the
lorry when it was about to fall or lean against the road, as the defence
maintains, the plaintiff could not have been guilty of contributory negligence.

19
 The doctrine of alternative danger or agony of the moment could still apply in
his favour. Also read: Sayer v Harlow[1956] W.L.R 623.
 Intervening natural event (Innevitable accident). This borders on real
misfortune i.e that without the fault or negligence of the defendant, an event
still occurs resulting into damage to the plaintiff. It involves a supervening
event to the extent that no amount of care expected of a reasonable man
would have saved the situation in the circumstances.
 Intervening act of a third party (nova causa interveniens). This arises where
the defendant‟s breach of duty does no more than provide the occasion for an
entirely independent act of a third party and if that act is the immediate cause
of the plaintiff‟s damage, then the defendant is not liable. (Weld- Blundell v
Stephens [1920] A.C 956).

Vicarious liability.

The principle of vicarious liability was developed from the law of agency. The
common maxim here is that he who works through others work for himself.
Accordingly, a third party who has done no fault can nevertheless be found liable for
the tortious acts and omissions of another who stands in a special relationship with
him e.g employee employer relationship.

To succeed under vicarious liability, the plaintiff must show that the alleged servant
was under the control and bound to obey the orders of the alleged master at the time
he occasioned damage to him.

Simply put, the claimant must prove (a) that the injury/damage suffered by him was
occasioned by the defendant‟s servant or agent; (b) that such servant or agent was at
the time he inflicted damage on the plaintiff acting within the ordinary course of his
employment. It is immaterial that the defendant had directed the servant not to do
the act. In other words, liability with attach to the defendant even if the servant does
something wantonly for his own purpose. (Piovano v Attorney General of Uganda
HCCS No. 373/1963; Muwonge v Attorney General of Uganda [1967] E.A 17; Patel
& Anor v Tandree & Anor. [1936] K.L.R 8). Also read; West Nile District
Administration v Dritto [1969] E.A 324: on the four question test in determining
whether an employee-emlpoyer relationship exists between the actual tortfeasor and
the defendant.

20
Defences to an action under vicarious liability.

 Employees frolic of his own. This is a total defence where the defendant
employer can show that though his servant, the tortfeasor committed the
wrong when he was not in the ordinary course of the master‟s employment.
 Besides, other ordinary defences to negligence as discussed above are also
available to the defendant.

Nuisance.

The word nuisance is derived from a French word, „nure‟ which means, to hurt or
annoy. Nuisance has also been defined as anything done to hurt or annoyance of the
land, tenements or hereditament of another and not amounting to trespass to land.
According to Winfield & Jolowitz on Torts, 8th Edn a nuisance is described as the
unlawful interference with a person‟s use or enjoyment of land or some right over it
or in connection with it. The tort is committed whenever a person is wrongfully
disturbed in the use and enjoyment of his land. Generally, it arises from the duties
owed by neighboring occupiers of land.

No one should use his land which is likely to affect his neighbor‟s use of his land.
Although a tort of nuisance is usually committed only where the plaintiff and
defendant are owners or occupiers of land, in certain circumstances, it can be
committed in places like a highway, or even a river.

There are two types/kinds of nuisance; Private and Public.

Private nuisance.

A private nuisance is committed where a person‟s private rights in his land are
wrongfully disturbed; whether physically or by allowing noxious things to escape
onto his land. Thus it is a nuisance to obstruct an easement or to allow a weak
structure to dangerously hang above another‟s land, or to allow smoke, noise, gas,
fumes escape onto the plaintiff‟s land thereby inconveniencing him. In Holywood
Silver Fox Farm Ltd v Emmett [1936] 2 K.B 468, the plaintiff was a breeder of silver
foxes which were very sensitive to any disturbances during breeding seasons. The
defendant was developing neighboring lands as a housing estate and thought that the
plaintiff‟s business might disturb his customers. He instructed his son to fir a gun
near the fox cages. The son did so. After four days, the plaintiff sued the defendant

21
for committing a private nuisance. It was held that the act of the defendant through
his son amounted to a nuisance.

A private nuisance affects some particular individual or individuals as distinguished

from the public at large. It consists of some unauthorized user of a person‟s own
property which causes damage to the property of another or some unauthorized
interference with another‟s enjoyment of his property, causing damage. The essence
of this tort is the damage it causes to the plaintiff. However, no action shall lie in
respect of damage which is so trifling that the average person will complain of. The
maxim is de minimis non curat lex, which means that the law does not concern itself
with very slight things.
The law of nuisance is based on the maxim that use your own property that you
cause no harm to another. The test whether a defendant has committed a nuisance
is whether or not he has acted foreseeably and reasonably . In this regard, a balance
has to be struck between the right of the occupier to do what he likes on his own
property and that of his neighbor not to be interfered with. It is impossible to give
any precise or universal formula but it may broadly be said that a useful test is what is
reasonable according to ordinary usage of mankind in society. In St. Hellen Smelting
Co. Ltd v Tippings [1865] A bought an estate in the neighborhood where many
manufacturing works were carried on. Among others were works of copper smelting.
It was not proved whether or not those works were in actual operation when the
estate was bought. The vapours from those works when they were in operation were
proved to be injurious to the trees on A‟s estate. It was held that A was entitled to
damages even though the area was full of similar factories.

Public nuisances.

Public nuisance is a wrong against the public either by doing a thing which tends to
bring annoyance to the general public or by neglecting to do anything which the
common good requires. It is an act affecting the public at large or some considerable
portion of it.

A public nuisance is also known as a common nuisance. It affects the comfort and
convenience of a class of persons but not necessarily every member of the public.
Thus, the obstruction of a highway is a public nuisance. A music festival
accompanied by large scale noise is also a public nuisance. It is also a public

22
nuisance to do any act which is a source of dander to the public e.g releasing a large
quantity of fuel on the road. In Amina Nantongo v Hiral Muhammed [1975] H.C.B,
the driver of a petrol tanker belonging to the respondent had driven it to BP depot
in Industrial Area where it was filled with petrol. He then proceeded to his
employer‟s office to collect customs documents as the petrol was destined for
Rwanda. On his way, he stopped and parked the tanker off the tarmac at the side of
Kisenyi Road in Nakivubo in order to pick some rice he had left for milling.
Although there was no rain on the morning of the accident, there were pools of
water from an earlier rain. There were some garages around carrying on the
wielding, but there were no wielding activities going on at that time. When the driver
returned, he tried to start the motor vehicle but it was stuck in the mud. The driver
was unable to get the tanker out and consequently, petrol escaped due to the driver‟s
effort to start the vehicle. More than 40 minutes elapsed between the start of the
leakage and the outbreak of the fire on the petrol which was caused by a man who
had deliberately stuck a match box. He had been prevented from stealing petrol by
fire men. It was held that an act whether in itself criminal or not constituted a public
nuisance if it caused injury or damage or annoyance to the public or obstruction in
the exercise of common rights.

Therefore, a public nuisance is any act or omission which endangers the lives,
health, safety or comfort of the public or by which the public or some considerable
section of it are obstructed in the exercise of a common right. Ordinarily, actions for
public nuisance are brought by the Attorney General against the wrongdoer.
However, an individual can bring an action in public nuisance if he can show that
either he has suffered a particular injury beyond that which has been suffered by the
rest of the public. In the case of Soltau v Deheld [1851] the plaintiff resided next to a
Roman Catholic Chapel. The defendant a priest took it upon himself to ring the
chapel bell throughout the day and night. The plaintiff brought an action in nuisance
to stop it. It was held that the ringing of the bell was a public nuisance but since the
plaintiff‟s house was next to the Chapel, he suffered more than the rest of the
community and was therefore entitled to bring an action to stop it.

Generally a nuisance is actionable if it is a continuing wrong. A disturbance or

inconvenience on an isolated occasion will not ordinarily be treated as a nuisance. In
Bolton v Stone [1951] A.C 850, the plaintiff while standing on the highway just
outside her home was injured by a cricket ball struck from the defendant‟s ground

23
which adjoined the highway. The ground had been used for cricket for over 80 years
and it was very rare for balls to be hit over the fence, which was 10 feet high above
the highway. The ball had travelled over 100 yards before hitting the plaintiff. It was
held that the act of hitting a cricket ball onto the highway in circumstances like those
in the case could not amount to a nuisance.

The plaintiff in a nuisance.

For the plaintiff to succeed in a nuisance, he must show that he has title to or at least
some interest in the property which is alleged to have been damaged or whose
enjoyment is alleged to have been affected by the nuisance otherwise, the action will
not succeed. In Kalone v Lasckey [1907] 2 K.B 144, a bucket supporting a water
tank in the house fell down by reason of vibrations caused by the defendant‟s engine
in adjoining premises and the plaintiff was injured. The plaintiff had no interest in
the premises. She merely resided thereon with her husband who was a manager of
the company that had leased the premises. It was held that, the working of the
engine was a nuisance but the plaintiff could not recover any thing as she had no
interest in the premises.

The law of nuisance protects only normal and ordinary persons. A plaintiff, who is
abnormally sensitive e.g because of old age, has no special protection and cannot
recover in nuisance for injury which a normal person would not have suffered.
Similarly, a person who has put his premises to a trade which is delicate or
abnormality sensitive cannot recover in nuisance. In Robinson v Kilkert [1889] 41
Ch. D. 88, the plaintiff carried out an unexceptionally delicate trade in which he
used an unequally delicate stock of paper. The stock paper was damaged by the heat
from the defendant‟s premises below. It was held that the plaintiff could not recover
in nuisance as the damage would not have occurred if he were carrying on an
ordinary trade and in any case the defendant‟s use of his property was reasonable.

The Defendant in nuisance.

The person liable in nuisance is primarily the occupier of the premises which are the
source of the nuisance including a tenant. Liability does not necessarily fall on the
owner of the premises although he may be successfully sued. In the case of Mint v
Good [1951] 1 K.B 517, a boy of ten years was walking along a public footpath when
a wall collapsed on him and injured him. The defendant the owner of the premises

24
from which the wall collapsed had let the premises in question to a tenant. But the
plaintiff sued the owner of the premises himself. It was held that the defendant was
liable.

Adopted nuisance.

When a nuisance is caused by one person but is adopted by another, the person so
adopting it is liable and cannot plead that the nuisance was not created by him. In
Sedleigh-Denfield v Ocallaghan [1940] A.C.886, a trespasser placed a pipe into a
ditch which was on the defendant‟s land without the defendant‟s knowledge or
consent. The pipe was meant to carry off rain water and all its down wash. When the
defendant became aware of the existence of the pipe, they used it to draw their own
field. Subsequently, the pipe became blocked and the water overflowed onto the
plaintiff‟s land. It was held, that the defendants were liable in nuisance because they
had adopted the trespasser‟s act as their own.

Defences in nuisance.

 Prescription. A prescription right to continue a nuisance is acquired after 20

years, under common law.
 Reasonable use of property. See: Robinson v Kilkert, the defendant has to
prove that he has used his property reasonably and not maliciously,
otherwise, the defence will not apply.
 Deminimis non curat lex. If the damage is so minor or trivial, the plaintiff will
not recover.

Remedies for an action in nuisance.

 Abatement/stopping of the nuisance. This is the removal of the nuisance by a

party injured. The removal must be: peaceful, without danger to life or limb,
and upon prior notice to the land owner to which an entry is desired.
 Damages. The principle applicable to cases of nuisance is whether the
defendant injured his neighbor. The measure of damages is the devaluation of
the property in consequence of the nuisance. The plaintiff must prove some
special damages. In Davy v Harrow Corporation [1958] 1 Q. B 60, the
plaintiff‟s house was damaged by the penetration of roots from the

25
 defendant‟s trees on the adjoining lands. The plaintiff‟s action for damages in
nuisance succeeded.
 Injunction. In order to obtain an injunction, it must be shown that the injury
complained of is present or impending or is such as by reason of its gravity or
its permanent character cannot be adequately compensated for by damages.
See: Christie v Davy [1893] 1 Ch.D 316.

Occupiers liability.

An occupier of premises is liable if persons suffer injury by reason of defective or

dangerous state of premises on such person‟s premises. These persons fall into three
categories:

(a) Licensees and guests.

(b) Invitees and customers; and
(c) Trespassers.

Licensees.

A license is a person who enters premises of another under a license, express or

implied from the occupier e.g a guest is a license. Similarly, persons who enter
premises to solicit for orders or to beg or to hold any communication with the
occupier is a licensee. When a licensee is injured on the land occupied by the
licensor, he can only maintain an action against his licensor when the danger through
which he sustained the injury was one which the licensor knew of, but of which the
licensee was unaware.

If however, the danger is obvious, the licensee must look out for himself. The
licensee is expected to take his own precautions. (Mersey Docks Harbor Board v
Proctor [1923] A.C 252; Pearson v Lambet [1950] 2 K.B 353).

Invitees.

An invitee is a person who is on the premises for some purpose in which he and the
occupier has a common interest e.g a customer in a shop, or a student of LDC.

The distinction between an invitee and a licensee is that the inviter and invitee have a
common interest but the licensor and licensee have none. Those who are invited as
guests whether from benevolent are not in law invitees but licensees. The law does

26
not take into account the worldly advantages which the hosts may remotely have into
view.

The duty of an inviter is to prevent damage to the invitee from unusual danger. If the
invitee acting reasonably and exercising due care for his own safety does not
appreciate the existence of danger or its nature, it will be to him unusual danger.
(Latherm v Johnson [1913] 1 K.B 399; Bakaboineki v Bunyoro District Local
Administration [1970] E.A 310).

Trespasser.

A trespasser is one who goes onto the land of another without permission of
whatever sort and whose presence is either unknown to the occupier or has been
objected to. The duty of an occupier towards a trespasser comes lowest on the scale.
The general principle is that he who enters wrongfully does so at his own risk. But a
trespasser is not entirely without rights. The general rule is thus subject to the
qualification that the occupier must not (a) do any act calculated to injure the
trespasser; or (b) do any act which if done carelessly must reasonably contemplated
as likely to injure him.
Therefore, a trespasser will have a right of action if the occupier deliberately sets a
vicious dog on him or if he is injured by a mantrap put on the land for the purpose
of trapping trespassers. In Hardy v Central London Railways [1920] 3 K.B 459, a
railway company had at one of their stations a moving stare case which led from the
booking hall to the underground platforms open to the street as there was no
physical obstruction to prevent any of those in the booking hall walking on to the
stare case. There was a tax-collector at the barrier near the bottom of the stare case.
Children from the neighborhood were in the habit of frequenting especially during
the evening hours and playing on the stare cases by running it down and up; but they
were always warned off by the tax-collector at the bottom and a clerk at the booking
office. These were always assisted by the railway policeman whose duty was to drive
out children from the booking hall. He used to do this twice in every hour. On the
fateful day, the plaintiff, a boy of about 5 years who was then under the care of a
bigger brother, peeped and on realizing that the policeman was away sneaked inside
and to the state case where they began playing. Then, the plaintiff threw his hand on
the machine which chopped off his fingers, and hence bringing this action. It was
held that the plaintiff was a trespasser and that the defendant was not liable. In IMK
27
v Tigampenda & Anor. [1985] HCB 32, the respondents formally plaintiff sued the
appellant company in tort of vicarious liability upon the negligence of their driver
who while they had been allowed by the said driver with their boxes of fish at a fare
of Shs. 300/=, the said driver reluctantly failed to control the lorry at the bridge. The
lorry rolled back, and the driver jumped out. The vehicle overturned and rested on
its left side with its rear part in the water. The respondents received severe injuries,
hence this suit.

The second appellant had contended that their company was carrying on the
business of tea, coffee and clove transporters from Zambia, Zaire, through Uganda
to Kenya and that they had given strict orders to their driver not to carry passengers
and that the respondents were therefore trespassers. In allowing the appeal, it was
held that, the owner of the vehicle owes no duty to passengers whose presence he
has neither authorized nor could reasonably foresee if they were injured in an
accident by his servant‟s negligent driving. On the facts of this case, there was no
doubt that the respondents were trespassers as against the appellants. The driver had
clear instructions not to carry passengers which he disobeyed. Therefore the
question whether he was an agent of the appellants at the time he contracted to carry
the respondents does not arise. That to be effective, the notice of prohibition should
be displayed in a language which is understood by the person it is meant to affect but
the law does not require such display. A trespasser is always a trespasser whether he
knows it or not. That the master will always be liable for the tort committed by the
servant even if he had forbidden from doing the act, though forbidden was tacitly
allowed. There was no evidence that the company had direct knowledge as the
officers of the company did not know that the driver was carrying passengers in
disobedience of the prohibition.
Strict Liability

The Rule in Rylands v Flecher [1867] L.R 3 H 330.

The rule in Rylands v Fletcher is that the occupier of land who for his own purpose
brings and keeps on his land anything of non-natural use which is likely to cause
damage if it escapes must keep it at his own peril and is liable for all the direct
consequences of its escape even if he has not been guilty of negligence. In this case,
the defendant employed an independent contractor experienced in such matters to
construct a water reservoir. In the course of the works, constructors came across an
28
old shaft and passages which although no one suspected this communicated with the
plaintiff‟s mines. The contractors failed to block up these shafts and passages with
the result that when the reserve was filled, the water from it over flooded the
plaintiff‟s mines. It was found as a fact that the defendant had not been negligent but
nevertheless the court held that he was liable for damages caused by the flooding and
this decision was affirmed by the House of Lords. Lord Blackburn in delivering the
judgment observed that,

We think that the true rule of law is that a person who for his own purpose
brings on his land and collects and keeps there anything likely to do mischief
if it escapes must keep it at his peril. And if he does so, he is prima facie
answerable for all the damage which is the natural consequence of the escape.
Therefore, the rule applies to anything which a person brings, collects, and
keeps on his land other than by way of natural use of land which in particular
circumstances is likely to give rise to undue risk of damage to others.
Therefore, in order to establish the defendant‟s liability under the rule, the plaintiff
must show that:

 The defendant has brought to the land which he occupies and kept there in
non-natural use, something which if it escapes will cause damage.
 That the thing has in fact escaped.
 That the plaintiff has thereby suffered damage.

In the case of Crowhurst v Amershan Burrial Board [1878] 4 Exch. 5, the

defendants planted yew trees on the boundary of their land, the branches of which,
projected over land occupied by the plaintiff. The plaintiff‟s horse nibbled the
branches and was poisoned to death. The defendants were held liable. They had
brought trees on their land whose branches had escaped; and it is not a natural use
of land to plant poisonous trees which overhang other‟s fields in which domestic
animals are kept. In Ponting v Noakes [1894] 2 Q.B 281, the plaintiff‟s horse
entered on the defendant‟s land and ate poisonous plants which led to its death. It
was held that, the defendant was not liable if his neighbor‟s horse strayed on his land
and ate the poisonous plant. For it is the plaintiff‟s duty to keep his horses from
straying.

29
Defences/exceptions to the rule.

 Act of God. The defendant can escape liability by showing that the escape was
caused by an act of God i.e an occurrence which no reasonable man would
have contemplated. In Nichols v Marshland [1876] 2 Exch. 1, the defendant
was an owner of an estate containing anti -social pools caused by damming a
natural stream. A particularly violent storm greater and more violent than any
of the kind in human memory broke down the dams and resulting rash of
water carried away the plaintiff‟s bridges. It was held that, the defendant had
not been negligent and was not liable under the rule because the accident was
due to an act of God.
 Default of the plaintiff. The defendant will escape liability if the dangerous
thing has escaped because of the plaintiff‟s default.
 Consent of the plaintiff. The defendant will be under no liability if the
dangerous thing has been brought on the defendant‟s land with the knowledge
and consent of the plaintiff. For in such a case, the principle of volenti non fit
injuria will apply.
 Act of a stranger. The defendant will escape liability if he can show that the
escape was due to the wrongful act of a stranger over which he had no control.
In Rickatta v Lothians [1913] A.C 263, the plaintiff leased a 2nd Floor premises
from the defendant who himself occupied the 4th Floor. One night, some
malicious third person blocked the outlet of a 4th Floor basin and turned the
tap on. The water overflowed and damaged the plaintiff‟s goods. It was held
that the defendant was not liable and the rule in Rylands v Fletcher was not
applicable. The escape was caused by the wrongful act of a third party and the
water supply was a natural user of the land.
 Statutory authority. The rule has no application where the defendant acted in
pursuance of a statutory authority in placing the dangerous thing on the land
from which it escaped. In Greene v Chelsea Water Works [1870] 70 L.T
647, a water mine belonging to the defendant burst and flooded to the
plaintiff‟s premises. The defendant had been authorized to lay the mines by
an Act of Parliament. It was held that in the absence of negligence, they were
not liable.

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Liability under fire.

Long before the case of Rylands v Fletcher, it was already established that a person
was liable for the escape of fire and therefore the owner of the fire was bound to
keep it at his own peril. But the situation has now been brought within the scope of
the rule in Rylands v Fletcher. It should be noted that in many cases, the rule in
Rylands v Fletcher will not impose liability because fire would have been lit in a
natural user of land but the defendant will not escape liability if he is negligent. In
Salim Omani v Jackson Ongeya C.A No. 2/1971, the appellant gave the respondent
permission to use part of his land. When clearing this portion, the respondent set
fire to the grass and inspite of the precautions taken, the fire escaped because of the
strong wind, damaging the plaintiff‟s property. It was held that proof of defendant‟s
negligence was an essential element in liabilities for fire, with the exception to the
rule in Ryland v Fletcher that if an occupier starts fire intentionally he is under a duty
to prevent it from causing damage otherwise he is acting at his own peril. In
Abdullah Ramathan v Kinoluwe C.A No. 103/1967, the plaintiff brought an action
for damages to his crops by the spread of fire from the defendant‟s shamba to the
plaintiff‟s land. It was held that if a person starts fire on his shamba and it spreads
into somebody‟s land, he cannot plead that it was merely bad luck!! It is necessary
for a person who starts fire to control it, and where he fails and it spreads into
somebody else‟s land, he must pay compensation for damage caused.

Liability for animals.

There are two classes of animals: (1) animals farae naturae ie these are animals of a
wild nature, and (2) animals manuetae naturae i.e animals of a tame
nature/domesticated animals.

A person who keeps a wild or domestic animal known by him to be vicious keeps it
at his peril and is liable for all the natural consequences of not keeping it securely.
(Burry v Campbell [1915] K. L. R 68).

Whether a particular animal fall within the category of dangerous or tamed class is a
question of law and the test is whether that particular kind of animal is by its
particular nature dangerous to human kind. Dangerous animals are those which
ordinarily are kept in captivity e.g lions, leopards, tigers etc. On the other hand dogs,
cats and horses are all tamed and domesticated animals. Keeping domestic animals

31
is less risky than keeping wild animals. A person keeping domestic animals can be
liable for damage caused by such animal only where it can be proved against him
that he was aware of the animal‟s propensity to cause harm. This rule is known as
the scienter rule. In order to prove scienter, the plaintiff need not show that the
animal had previously done the thing complained of. He needs establish only
propensity to do the wrong thing complained of and that its owner was aware of such
propensity. E.g if A‟s dog attacked B, B is only required to show that A‟s dog had a
tendency to attack human beings. The scienter will not be proven by showing that
the dog had bitten other dogs.

Liability on dangerous animals does not depend on ownership but on control of the
animal. In Yesero Mugenyi v Securico Uganda Ltd HCCS No. 438/1971, the
plaintiff, an advocate visited a Bank to cash a cheque. He later returned to the same
bank on learning that he had misplaced his car key. The bank had officially closed
the day‟s business and he had to go through the rear door. There was a guard dog
with its handler positioned about 27 feet away. The dog then not on a chain rushed
up to the plaintiff and bit him. There was no evidence to show that this dog had ever
bitten a person before. The dog had however been trained to attack human beings
only after it is ordered by its handler. It was argued for the defendant that the dog
was a tamed animal and that no scienter had been established. It was held that, the
dog had been deliberately trained by the defendant company to attack human
beings. The defendant could not claim that the particular dog was in the
circumstances like any other ordinary dog. In attacking the plaintiff the dog was not
indulging into unnatural propensity but what it had been trained to do. The
defendant knew that their dog was so trained and was liable.

Defences to scienter.

 Act of God.
 Act of a stranger. If the harm is due to the act of a stranger, the owner or one
in control of the animal will not be liable provided he can show that he had
done what he is reasonably expected to do to prevent other persons from
meddling with the animal.

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Claims under the Law Reform (Miscellaneous Provisions) Act Cap.79.

The Law Reform (Miscellaneous Provisions) Act, (hereinafter referred to as “the

Act”), applies to causes of action which arose on or after 3rd December, 1953, when
the law took effect. Accordingly, section 5 of the Act, provides a statutory cause of
action known as “death caused by negligence.” Its effect is that an action is
maintainable where death is caused by the wrongful act, neglect or default of any
person provided such wrong is such as would have availed a right to sue to the
injured person if he/she did not actually die. The elements of this tort, are similar to
those under the general law of negligence with the exception that here the victim
must have suffered death and not mere bodily or financial injury. The second
difference is that while an action under the general law of negligence will be
commenced by the victim himself or by his next friend, actions under the Act, are
commenced posthumous (after the death of) the victim, by and for the benefit of the
deceased‟s family members. It is no defence for the defendant to aver that he was
under a common employment with the deceased. Even where there was an express
agreement in the contract of service between the deceased and the defendant
employer limiting the right to liability for personal injuries, such clause is null and
void. (S.15 (2) of the Act).

Section 6 of the Act confers a right to sue for damages on any executor,
administrator or by any members of the deceased‟s family. Such suits are brought for
the benefit of the members of the deceased‟s family. Where there is no executor or
administrator, family members should agree on who to sue as not every beneficiary
can bring a separate suit to cover his/her independent interest. The court can only
entertain one suit in respect of the subject matter. (S.6 (3), of the Act). Once a
decision is made to institute a court action, the plaintiff is required to deliver his/her
plaint to the defendant with a list of full particulars of the beneficiaries, and the
nature of claim in respect of the damages being sought. (S.8 of the Act).

In Uganda, damages under the Law Reform (Miscellaneous Provisions) Act are
awarded to the beneficiaries not for bereavement but for loss of dependency and
future expectations of life. (U.E.B v Musoke). The court can award pecuniary
damages including burial expenses. (S.9, of the Act). (Sebuliba v Katende [1982]
H.C.B 56).
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Loss of expectations of life & future dependency: The basic principle is that a
dependant is entitled to a full compensation for the pecuniary benefit lost and this
can be calculated in reference to a reasonable expectation of a pecuniary benefit as
of right, from the continuance of life. In assessing dependency, courts are guided by
the rules/method suggested by Lord Wright, in Davies v Powell Duffry Associated
Collierries Ltd (1942) A.C 601, 617 cited with approval in Osinde v Onyango [1975]
H.C.B 92;

 The starting point is the amount of wages the deceased was earning.
 Next, is the estimate of how much was required for the deceased‟s personal
living expenses?
 The balance would give a datum or basic figure which will generally be turned
into a lump sum by taking a certain number of years purchase. This sum may
be downscaled putting into account uncertainties, like future fortunes of the
beneficiaries‟ e.g where for instance a widow remarries and ceases to be a
dependant; and other matters like speculation and doubts.
Suffice to note is that when court is assessing damages, it will not take into account
any sum of money paid or payable to the estate under a contract of insurance
between the deceased and his insurers. (S.9, of the Act).

In Osinde v Onyango, the plaintiff as widow to the deceased, brought an action on

her own behalf and on behalf her two daughters aged 18 and 12 years respectively.
Her late husband though an elderly man of 60 years, was still economically
productive as a fitting mechanic at Jute Factory, Tororo. Besides, they would jointly
work on family gardens and such efforts would yield an income of about Ug. Shs.
10,000/= p.a. The said husband was knocked dead by the negligent conduct of the
defendant driver. The plaintiff led evidence that as a result of her husband‟s death,
the family lost on the financial fortune and children were chased from school for
inability to pay fees. Her claim for prospective financial assistance under the Law
Reform (Miscellaneous Provisions) Act, succeeded. In Makumbi v Kigezi African
Bus Co. Ltd [1986] H.C.B 68; the plaintiff, a 50 year old man as father of the
deceased sued the defendant for loss of servitum, loss of prospective financial
assistance and damages for negligence and loss of expectations of life. On the fateful
day, the plaintiff was travelling on a bus together with his wife and a 2 year old child,
along Masaka road. Somewhere, they met a trailer coming from the opposite

34
direction. The bus moved further on its left hand side to give space to the trailer to
pass. In so doing, the bus fell off the road and rolled several times into the swampy
valley, resting on its top with its tyres up. The plaintiff‟s said 2 year old child died,
hence the suit. On loss of prospective financial assistance, the plaintiff‟s counsel
contended that there was justification for court to grant this remedy because in
African society when children grow up, they contribute financially not only to their
families but also to their kindred. That, parents therefore, look upon children as an
investment. It was held that loss of servitum is actionable by a parent, but only
recoverable where it is proven that the child was capable of rendering those services.
In the present case, the deceased was still an infant and thus incapable to render any
such services to its family. It was further held that it would be too speculative a
possibility that when a child in African society grows up, it will contribute financially
to the family and kindred. That, there are numerous unpredictable contingents for a
child to fulfill his parents‟ expectations in life. The claim was equally, disallowed.
That, death of a child deprives its parents their expectations to live and enjoy as they
watch over their child‟s growth. For this reason, the plaintiff was awarded damages.
In Public Truste v City Council of Nairobi (1965) E.A 758; a young boy then sitting
at his parents‟ verandah was hit by a piece of metal which fell off from the
defendant‟s grass-cutting machine. He died from the sustained injuries a fortnight
after. The father of the deceased led evidence to justify damages for loss of future
expectations in life by contending that he had intended his late son to study and
become a doctor. He showed how he had an income generating job that could see
his son through his future dreams if it weren‟t for the defendant‟s negligent conduct.
It was held inter alia that the evidence of the deceased‟s father that he intended to
educate his child to be a doctor was highly speculative, though it raised a reasonable
expectation of a pecuniary advantage to the father. In Sebuliba v Katende [1982]
H.C.B 56; the plaintiff as father of the deceased, filed the suit against the defendant
under the Law Reform (Miscellaneous Provisions) Act for General and Special
Damages arising out of the fatal accident his son suffered as a result of the defendant
driver‟s negligence. The deceased a 16 year old boy died while in S.1; when
travelling as a passenger on the defendant‟s motor vehicle. The plaintiff contended
inter alia that he the family had lost on the deceased‟s services. It was held that
although African children while at school are expected to assist in domestic work,
when they return home in the evenings, weekends and holidays, a plaintiff can
succeed on this claim if he can prove loss of these services from the deceased.

35
Further, that the deceased lived in his house as part of the family members and was
old enough to render those services.

Claims for pain and sufferings are not recoverable where the deceased became
unconscious at the time of suffering the fatal injuries till death; or where he dies
instantly. Likewise, claims for cost of clothes the deceased was wearing at the time he
suffered the fatal injuries are not recoverable. (Osinde v Onyango).

The defences under this claim are the same as those under the general law of
negligence.

Defamation.

The law of defamation is intended to protect human honor, integrity and reputation
from being violated through malicious false attacks. It is thus the law guarantying the
right and freedom to privacy. The present law of defamation was developed from
the activities of the Star Chamber, in the 17th Century which set out to punish the
crime of political libel in order to suppress seditious publication which had come
with the spread of printing. It thus plays the role of peace-keeping.

In Ssejjoba v Rwabigonji [1977] H.C.B 41, 43 court defined a defamatory statement

as one which has a tendency to injure the reputation of the person to whom it refers
by lowering him in the estimation of the right thinking members of society generally,
and in particular to cause him to be regarded with feelings of hatred, contempt,
ridicule, fear, dislike and disesteem. The court further gave typical examples of
defamatory statements to include an attack upon the moral character of the plaintiff,
attributing to him any form of disgraceful conduct, such as commission of a crime,
dishonesty, cruelty and so on.

The essential elements of defamation are:

(a) That the defendant made a publication to someone other than the plaintiff (a
third party);
(b) That the publication was defamatory of the plaintiff i.e calculated to injure the
plaintiff‟s feelings or loss of self-respect;
(c) The publication was false and made without justification;
(d) The publication referred to the plaintiff.

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A defamatory publication can take the form of a slander or a libel. A person
publishes a slander when he speaks words defamatory of a plaintiff in the presence
of a third person. (Odongkara v Bob Astles [1970] E.A 374). In other words, a
statement is slanderous where its publication is not reduced into a print form. On
the other hand, libelous statements are those communicated while under their print
form. These include letters of whatever kind e-mails, telegrams, photographs, news
telecasts etc.

In Ssejjoba v Rwabigonji, the defendant as a parent, wrote two letters to the School
Head Master and to the District Education Officer, respectively, against the plaintiff,
then a P.6 Teacher and acting Headmaster of a school where a defendant had an
allegedly undisciplined daughter, accusing the plaintiff of disgraceful conduct such as
drunkardness, and crimes of adultery, hording and overcharging, of dishonesty in
handling the school choir funds, cruelty towards pupils. While in court, the
defendant further accused the plaintiff of murder or manslaughter, of a pupil whom
he alleged was beaten to death by the plaintiff. In the same letter, the defendant
accused the plaintiff of being drunk in class, caning pupils without good reason,
being constantly out of class, having sexual intercourse in front of his pupils,
neglecting his duties so as to carry on his own business, refusing to allow pupils from
attending religious instructions and services, failure to co-operate with the rest of the
staff and parents, causing his pupils to fail examinations by his neglect and dismissing
pupils from school without reason.

The above statements of the defendant reflect a clear example of a defamatory libel.
Indeed these statements said about the plaintiff were untrue and the defendant‟s
defence of justification failed. No wonder, the court held that the absence of any
genuine belief in the truth of the statement was conclusive proof of malice, and that
even where a genuine belief would be consistent with existence of malice, then the
motive was an improper one. Thus if a defendant uses the occasion for a malicious
purpose, he would be liable in defamation, even though he claims that what he said
was believed to be true.

Innuendo

An innuendo is a situation where a defendant uses in addition to ordinary words any

implication or inference which a reasonable reader guided not only by any special
but only by general knowledge, and not fettered by any legal rules of construction
37
would draw from the words. (Jones v Skelton [1963] 1 W.L.R 1362 at p. 1370-
1371). In other words, innuendos are used to convey an elusive meaning and a
claimant in defamation is required say in his particulars what meaning he attributes
to the defendant‟s statements. See: (Abubaker Mayanja v The White Fathers & Ors.
H.C.C.S No. 643/1960)

Defences to defamation.

1.Justification.
2.Fair comment.
3.Privilege ((a) absolute or (b) qualified).
4.Apology.
 Justification (Truth). A defendant can plead justification in a suit for
defamation. This is another way or relying on the power of truth. That the
plaintiff should not run away from what society knows as his true status. The
essence of the defence is to remind the plaintiff that the status at which the
publication placed him is actually where he belongs and no higher, since
reputation is what others think you are and not what you perceive to be in
society. It is advisable that this defence be raised in addition to other defences.
The reason is that should it fail, then the defendant may suffer aggravated
damages for his reckless and wanton publication.
 Fair comment. This can be raised where the plaintiff is a public figure and it
was imperative for the defendant to make the statement which had the effect
of educating the public on who such official was in relation to the discharge of
his public duties. It is founded on the bedrock assumption that honest
criticism ought to be made in any civilized system of law as an indispensable
tool to efficient working of any public institution or office. Provided the matter
commented upon is in public interest, then it is open to anyone. Nonetheless,
fair comment cannot be applicable to statements of fact. Fair comment is
commonly raised by journalists against defamatory suits. Read: (Adoko
Nekyon v Tanganyika Standard Ltd H.C.C.S No. 393/1964 (U)).
 Privilege. This arises where the law recognizes that the freedom of
communication without fear of an action is more important than the
protection of a person‟s reputation. In this regard, statements made on the
plenary during parliamentary proceedings as well as those made during any
judicial inquiry or trial, are privileged.
38
 (a) Absolute privilege. This category includes: Statements made in Parliament,
Judicial Proceedings, Communications between certain officers of State;
and Law Reports. Read: Mandavia v Mangat & Ors (1954) K.L.R 68.
(b) Qualified privilege. This could be given at common law or statute. At
common law, the law looks at duty and interest i.e the defendant must
have a legal, moral or social duty to communicate while his recipient
equally had a corresponding interest to receive the communication. On the
other hand, statutes generally give qualified privilege under the following
circumstances:
(i) A fair and accurate report of proceedings in public of a legislature
anywhere in the world;
(ii) A fair and accurate report of proceedings in public before a court
anywhere in the world;
(iii) A fair and accurate report of proceedings in public of a person
appointed to hold a public inquiry by a government or legislature
anywhere in the world;
(iv) A fair and accurate report of proceedings in public anywhere in the
world of an international organization or international conference;
(v) A fair and accurate copy of or an extract from any register or other
documents required by law to be open to public inspection;
(vi) A notice or advertisement published by or on the authority of a
court, or of a judge or officer of court, anywhere in the world;
(vii) A fair and accurate copy of an extract from a matter published by
government or legislature anywhere in the world; and
(viii) A fair and accurate copy or extract from matter published anywhere
in the world by an international organization or an international
conference.

NB. Malice may destroy the defence of qualified privilege. Read: (Tanganyika
Transport v Nooray [1961] E.A 55; H. Suleman Ltd. V N.R. Sayani [1963] E.A
603).

 Apology. This serves as a mitigative defence. To succeed, the defendant must

show that he was truly honest but merely misled to act on wrong information
in making the publication. Further, that he was remorseful for the mess, the
publication generated against the plaintiff. The period within which the
39
apology is made from the material date of the offending publication, is a
relevant factor. Quick and immediate apologies are likely to be accepted as
honest while belated apologies may not be effective at all.

40