FOR THE LOVE OF CHRIST JESUS. THE BEGINNING AND THE END.

Transcription

1 FOR THE LOVE OF CHRIST JESUS. THE BEGINNING AND THE END. LAW OF TORT PART II LAW OF TORT PART II. TOPIC ONE: LIABILITY FOR ANIMALS. TOPIC TWO: STRICT LIABILITY: THE RULE IN RYLANDS V FLETCHER. TOPIC THREE: OCCUPIER S LIABILITY UNDER THE COMMON LAW AND STATUTORY PROVISIONS. TOPIC FOUR: NUISANCE. TOPIC FIVE: MALICIOUS PROSECUTION TOPIC SIX: VICARIOUS LIABILITY. TOPIC SEVEN: TORT OF DEFAMATION. TOPIC EIGHT: ECONOMIC TORT. (I.E. INJURIOUS FALSEHOOD, CONSPIRACY, INTIMIDATION, PASSING OFF, DECEIT, ETC.). Topic One: LIABILITY FOR ANIMALS. This subject of tort exposes us to the conception that man can keep animal(s) but he keeps such animal(s) at his peril and must reasonably ensure that they do not harm others. Just note the following: :: Who is a keeper? He/she is one who owns or takes care of or has control of an animal. :: What is the Keeper s Liability? A keeper of an animal is liable for damage caused by his animal. :: What is an animal? Animals are living things (other than man) which live on land or water whether domestic, wild or tamed. :: Animals are zoologically classified into wild and domestic. :: Ese Malemi in his treatise classifies animals into Livestock, Dangerous animals and Non-dangerous animals. :: Kodilinye and Aluko classified animals according to the form of action i.e. Cattle trespass and Scienter action A similar classification can be found in the Animals Act 1971 England. I shall adopt this classification for my discussion. CATTLE TRESPASS: Note carefully, that; a cattle in this sense includes; cow, bull, goat, and so on excluding dogs and cats. Cattle trespass occurs where the defendant s cattle are driven onto, or stray into the plaintiff s land. Damages can be recovered for injuries/harm caused to the plaintiff and his property. Although when the plaintiff sues, there are certain facts he must prove like; that he has an interest in the land trespassed

2 upon, the trespass/encroachment was not accidental, etc. THE SCIENTER ACTION: This is an action against the keeper of a dangerous animal because his dangerous animal injured the plaintiff-may V Burdett. Animals under this head are divided into; - Ferae naturae: (Latin for wild animal) these are animals of a specie which are naturally dangerous and unless restrained, are likely to cause harm. For example lions, leopards, tigers, elephants, gorillas, and so on. They are zoologically referred to as\wild animals. - Mansuetae naturae: animals belonging to a naturally harmless specie though individual ones may harbour vicious dispositions. For example cats, dogs, and so on. Flowing from our discussion so far, you should note the following points for Scienter Actions: :: Whether an animal is ferae naturae or mensauete naturae is a question of law- McQuaker V Goddard. :: Liability rests on the keeper of the animal-knott V Lagos City Council. Draper V Hodder, Curtis V Betts. :: The place of attack is irrelevant. :: Animals Ferae naturae are conclusively presumed to be dangerous without need to prove that the particular animal was vicious/savage. The owner would be liable. In Behrens V Betram Mills Circus, the court held the keeper of a circus elephant liable when it knocked down and injured the plaintiff. :: On the other hand, animals mansuetae naturae are NOT conclusively presumed to be dangerous. Therefore, the plaintiff must establish two things (for Mansuetae naturae attacks). They are. One: That the particular animal (i.e. Mansuetae naturae) has a vicious tendency/propensity: Case law examples on this point include; Worth V Gilling, where there was evidence that the dog habitually rushed out of its kernel and attempted to bite passers-by. In Daryani V Njoku, there was evidence that the defendant s dog (which attacked the plaintiff) had previously attacked the housemaid. In Kite V Napp, it was shown that his dog was in the habit of attacking people carrying handbags. In Wallace V Newton where it was shown that the defendant's horse usually got nervous whenever it was being loaded onto a trailer and could be harmful. In all these cases, the court held that these facts were sufficient to establish the vicious tendencies of these (mansuetae naturae) animals sufficient to entitle the plaintiffs in the cases to damages from the defendant (i.e. keeper of the animal). Two: that the keeper knew of the vicious tendency of his animal-fitzgerald V Cooke, Barnes V Lucille. In Cummings V Granger, the owner was held liable where his dog attacked a coloured skin

3 man. Because he knew that his dog was prone to attack coloured skin men. Glanville V Sutton. On the authority of Daryani V Njoku, we should note that knowledge can be imputed to the keeper where a third party who has some degree of control over the premises/animal has knowledge. As in this Daryani Case, the court held that since the wife was informed of the animal s particular vicious tendency, such knowledge can be imputed to the husband (plaintiffkeeper). We have highlighted the vital points to note and discuss in the exams. We move on to: DEFENCES: Fault of the plaintiff: e.g. In Sycamore V Ley, the plaintiff was held to be at fault where he was teasing the dog. In Nelmes V Chief Constable of Avon and Somerset, no damages where it was the plaintiff (claimant) that kicked the dog which then bit him. Also the plaintiff (i.e. injured person) can be said to be at fault if he was trespassing on the defendant s (i.e. keeper) premises and the animal attacked. Consent of the victim/plaintiff: in Rands V McNeil, the plaintiff was a zookeeper/wild animal trainer, the court held that he should expect dangers that come with the job. Act of nature or Novus Actus: for example where the animal got frightened by the sound of thunder and becomes vicious/violent. Other defences include; -Contributory negligence of the plaintiff which resulted to the attack. -Act of an authorised third party:-flemming V Oor. And so on. Note: For the keeper to claim these defences, he should however be shown to come with clean hands and taken reasonable steps to prevent the occurrence of the injurious event. E.g. he should not maliciously keep the animal as a trap-sarch V Blackburn. Remedies: Initially, the people or community resolved to killing the animal as was seen in the case of Uzoahia V Atu. However, now the court may award damages against the keeper, grant an injunction or an order of abetment. It could also seize and confine the animal in a zoo. Note (before we conclude this topic) that: where a plaintiff is unable to show that the ferocious tendency of the animal was known, he may sue in negligence- Draper V Hodder. There could also be liability for animals in other torts like nuisance (where one collects animals to disturb his neighbour-abiola V Ijeoma). One who accumulates animals in his compound and they escape and cause harm elsewhere may be liable under Rylands V Fletcher. One who sets his animal to a plaintiff may be liable for assault and battery and so on.

4 TOPIC TWO: STRICT LIABILITY: THE RULE IN RYLANDS V FLETCHER. In Rylands V Fletcher, the defendant employed an independent contractor to build a reservoir on his land. While working, the contractors discovered a series of coal shafts (which unknown to them linked to the plaintiff s land) which were loosely covered by debris, they did not block these coal shafts properly. The reservoir burst and flooded the neighbouring mine which was run by Fletcher. This situation/wrong did not fall under any existing tort. This is the rule (quoted but somehow summarised): Note that you should try and quote it in exams in the introductory parts. A person, who for his own purpose brings on his land and (or) collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of the thing s escape-blackburn J, (speaking on behalf of the judges) in the Ryland V Fletcher Case At the Court of Appeal, Lord Cairns added that the thing which escapes must be a non-natural user of the defendant s land. Simply put; Rylands V Fletcher generally established strict liability for damage which occur from escape of tangible things from a defendant s land. The following elements can be deduced from the foregoing: 1. The defendant must have brought/accumulated (or authorised the bringing/accumulation) of a deleterious substance on his land: Where he did not bring it into/accumulate it in his land, then no liability-giles v. Walker. 2. The thing brought onto the land must have escaped. In Read V Lyons inability to prove escape from the defendant s premises was fatal to the plaintiff s claim. Similar position in Hunter v. Canary Wharf. In Pointing V Noakes where the claimant s horse stretched over the defendant s fence and ate leaves from his yew (poisonous) tree and died held, no escape. But on similar facts in Crowhurst V Amersham Burial Board court found escape because the yew tree overstretched the defendant s land into the plaintiff s. See also; Hale V Jennings, Powell V Fall and Midwood V Manchester, where in these cases, the plaintiffs were successful in proving escape. :: Note however; Umudje v. SPDCN Ltd which distinguishes diversion from escape. Here, the defendants diverted a natural stream away from the plaintiff s fishery and spilled some oil into his land. The defendants were held strictly liable for the spillage but not the diversion. 3. The defendant would be liable for damages caused by the escape (NEPA v. Ali): provided the plaintiff is able to prove the damages/injury which may

5 include (but not usually granted for- (Read V Lyons)) personal injuries-hale V Jennings. 4. The thing brought upon the defendant s land must be a NON- NATURAL USER. From the interpretation of NEPA V Ali, the dictum of Lord Mutton in Rickards V Lothian, Rouse V Gravelworks, and a host of other cases over the years, Non-Natural use means the defendant bringing and keeping/accumulating a thing upon his land in a way no reasonable man ordinarily would. I.e.outside the normal daily usage and practice of mankind at a particular time as such can have adverse effects if mishandled. Look at this instance; installing a water system and putting a tank to supply the house, having cooking gas, fuel gallon in garage, installing electricity in house, having a swimming pool, planting trees, etc. are natural uses/users. However it can become non-natural if instead of a swimming pool, you corner a whole stream into your house, instead of a gallon of petrol, you park a full trailer of petrol in your compound, etc. An explosion of the full trailer would be devastating and liability (under Rylands V Fletcher) would arise if the explosion escapes from your house and affects neighbouring persons or properties. See Musegrove V Pandelis. In determining what amounts to a nonnatural use, the courts would consider the benefit of the activity, quantity of use, likelihood and gravity of damage. Taking note of the place and practice of mankind. We move on to: DEFENCES: The defendant can plead/claim that: :: The Plaintiff (i.e. claimant/injured party) is at fault or is contributorily negligent. See Pointing V Noakes (above) :: Consent/authorization of the claimant/plaintiff. :: The escape and damage was unforeseeable, incomprehensible not self-induced. i.e. an Act of nature: like floods, storm, hurricane and so on causing things on his land to escape and damage neighbouring properties- Nichols V Marsland. Although in recent times, the courts have required a stricter proof. See Corporation of Greenok v. Caledonian Railway Co. :: Statutory authority: the defendant can show that he is expressly protected by law from liability resulting from damage notwithstanding they were caused by him. :: Deliberate Act of an Unauthorised Stranger. In Perry V Kendricks Transport Ltd, where mischievous children threw a lighted match into the defendant s petrol tank (and there was an explosion which damaged neighbouring properties) the defendant (owner of the vehicle) was not liable. In Box V Jubb, the defendant was not liable for the flooding caused by his

6 reservoir because a third party had emptied their reservoir into his own. The REMEDY is damages for losses/damage/injuries arising. Although the courts in Cambridge Waterworks v. Eastern Counties Leather, have noted that the damage resulting from the escape must have been reasonably foreseeab ANDROID USERS SHOULD DOWNLOAD THE FULL VERSION OF THE NOTES FROM GOOGLE (APP) PLAY STORE FOR JUST #150 (ONE HUNDRED AND FIFTY NAIRA ONLY). OTHER PLATFORMS (IPHONE AND LAPTOPS) SHOULD CONTACT VITESOLUTIONSBOX@GMAIL.COM OR ON WHATSAPP FOR A DIRECT ONLINE ACCESS LINK TO THE FULL VERSION. VISIT ISOCHUKWU.WORDPRESS.COM FOR MORE.

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