Law of Torts

A tort is a civil wrong for which the remedy is a common law action for
unliquidated damages, and which is not exclusively the breach of a contract, or
the breach of a trust or other merely equitable obligation (Salmond).

In other words, a tort is any wrong that the courts will allow you to sue
someone else for damages, even though you did not have a contract or other
forms of arrangement with that person.

The term is used to cover a number of different causes of action some of

which you might have heard about and others which might be very new to you.
Examples of such torts from your syllabus are:
- Negligence
- Trespass to the Person (which itself consists of 3 sub torts namely:
assault; battery and false imprisonment).
- Defamation (which includes the categories of libel and slander)
- Public Nuisance
- Private Nuisance
- Occupiers Liability

A cause of action is any fact or combination of facts which gives you the right
to sue another person. Therefore, if some says something about you which is
untrue and which causes you to be shunned or ridiculed by members of the
community, you would likely have a cause of action in the tort of defamation.

We call the person doing the suing, the plaintiff-that is if you are suing in the
Resident Magistrates Court or claimant if you are bringing the action in the
Supreme (High) Court. The person who is being sued is called the defendant.

It is important to note, that even though you might have the right to sue the
defendant for violating your rights given under the law of tort, it is quite
possible that the defendant might have what is called a defence to your action.
This could cause you to lose the case or come away with less compensation
than you might have imagined. Examples of such defences may be placed in
two categories, namely general defences and defences peculiar to the tort in
question.

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An important example of a general defence in tort which is to be found in your
syllabus is:

Volenti non fit injuria (which loosely translated means: to him who is
willing no harm is done; that is, you consented to the injury about which
you complain)

Examples of defences peculiar to each tort include:

- Defences to defamation: justification/fair comment/absolute privilege

and others.
It is important therefore for you to find out what defences might be available to
the defendant in each cause of action you consider.

Before we go on to look closely at the makeup of each of the torts identified

above, there are two special terms to which we should first give some attention.
These terms are
(i) Vicarious Liability
(ii) Res ipsa loquitur

Vicarious Liability

The first thing to note and remember is that vicarious liability is NOT a tort. It
is a way, a device, for holding someone else responsible for the tort committed
by another. Someone is held vicariously liable on account of the relationship
that exists between himself or herself and the person committing the wrong.
Vicarious liability is an example of the operation of what is called strict
liability in tort. Strict liability means that you are being held responsible
even though you are not personally at fault. Other areas in which strict
liability operate, is in the area of public nuisance amongst others.

The most usual relationship in which vicarious liability and consequently strict
liability is imposed is the employer/employee relationship.
An employer will be held vicariously liable for the torts of his employees as long
as the plaintiff/claimant can prove two main points, namely:-

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 (a) The employee who did the wrong, was working under a contract
of service and not a contract for service. Sometimes it is difficult
to tell which is the case and for this reason the courts have come
up with three rules to assist them in making a determination. The
rules are:

(i) the degree of control test

(ii) the integral part of the business test
(iii) the multiple or economic reality test

Where this point is proven, the plaintiff/claimant will next have to show:

(b) that the employee committed the tort during the course of the
employment and not while the employee was on a frolic of his own.
It should be noted that even if the employee was doing what the
employer forbade him to do, the employer will still be liable as long
as the employee was carrying out the performance of the job, albeit
in a wrongful manner. See the case of Rose v Plenty, where a
milkman, who employed a boy aged 13 years to assist him on
his milk round contrary to the employers instructions not to
allow children to assist, was held to be acting in the course of
employment and therefore the employer was held vicariously
liable.

Therefore, once you are able to show that the person who committed a tort was
the employee of another, that other can be sued as well as the employee.

Res ipsa Loquitur (the thing speaks for itself)

This is a rule of evidence where the burden of proving negligence is shifted from
the plaintiff/claimant and placed on the defendant. It arises in those situations
where it is obvious that someone must have been negligent for the plaintiff to
have suffered in the way that he has. The thing must have been in the control
of the defendant and therefore it would fall on the defendant to show what went
wrong and not for the plaintiff, as is customarily the case, to show that the
defendant was negligent.

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The case of Scott v London and St. Katherine Dock provides a good
illustration. In that case, the plaintiff was passing by the defendant’s
warehouse when bags of sugar fell out of an open window injuring him.
The defendant was subjected the res ipsa rule and had to show how this
came to be.

Individual Torts

Negligence

The word negligence in ordinary language is generally associated with the word
careless. However, the term represents a distinct tort and arises where
someone who has a duty, fails to take reasonable care in their acts or omission
and thereby cause harm or loss to someone else. For a claimant to be
successful in an action in negligence, he must establish the following to the
satisfaction of the court, namely

- That the defendant owed him a duty of care (duty of care)

- That the defendant breached this duty (standard of care)
- That the breach of duty caused him harm or loss (causation)and
- That the harm or loss complained of is not too remote (remoteness of
damage or harm)

Each item in the listing above is called an element of negligence and demands
separate consideration.

Duty of Care

In the leading case of Donoghue v Stevenson (1932) the court stated that a
person owes a duty of care to another who is so closely and directly affected by
their conduct that they should have had them in mind when they were carrying
out the conduct which is considered to be the source of the harm.

In that case A bought a bottle of ginger beer and gave it to a companion

who proceeded to consume the content. It was then discovery that the
bottle contained a decomposed snail which was not discoverable due to
the colour of the bottle.

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The companion got ill and sued the manufacturer who argued that as she
was not the one who purchased the item, she did not have a contract to
support any claim. However, the highest court developed the new tort of
negligence to deal with this situation and it has become precedent for all
situations where someone by their conduct causes harm to another whom
they could have foreseen as being so affected.
( This Donoghue principle has been modified since then by a line of cases
which seeks to reduced the ability of this case to open a flood gate of action)

Breach (conduct which falls below the standard of care)

Having established that the defendant owes him a duty of care, the claimant
must next prove that the defendant has conducted himself in a way that a
reasonable person would not have done, i.e. breach or violated his obligation by
not acting carefully. In order to determine whether the defendant’s conduct is
below standard, the court normally considers certain factors in light of the
circumstances of the case. These factors include;

- The state of current practice: Roe v Minister of Health- In that

case, a doctor gave a patient an injection, taking the normal
precautions which were current at that time. The drug was
contaminated and the patient became paralysed. At the time of the
trial seven years later, medical practice had been improved to avoid
the risk of undetected contamination (i.e. through an invisible crack
in a glass container). The court ruled that the proper question to ask
in the circumstances of this case was: what was the state of medical
knowledge at the time? The doctor was held not to have acted below
the prevailing standards as he could not reasonable be expected to
anticipate developments in medicine which had not yet taken place.

- The degree of risk that is involved, i.e. the higher the risk the
greater should be the precautions taken. In the case of Paris v
Stepney Borough Council, P was employed by K on vehicle
maintenance. P had already lost sight in one eye. He was hammering
metal. It was not normal practice to issues goggles to men employed
on this work since the risk of eye injury was minimal. A chip of metal
flew into P’s good eye and blinded him.

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 The court ruled that although industrial practice did not require the
use of goggles by workers with normal sight, there was a higher
standard of care owed to P because an injury to his remaining good
eye would blind him. The employer had failed to maintain a proper
standard of care in relation to P and especially given that the
precaution would not have cost much.

- If the cost involved in taking precaution is greater than the

perceived risk, the defendant might escape liability. In Latimer v
AEC the court decided that shutting down a factory because of the
risk of slipping on the floor due to heavy rain, was not necessary as
the slippery patches were clearly visible. Closing the factory and
putting people and productivity off balance was disproportionate to
the risk of slippage by someone.

- Social usefulness of the defendant’s action. This means that a fire

engine racing to the scene of a fire will not be regarded as driving
dangerously in comparison to a fire engine returning from such a
scene. Or, a police who is returning fire from gunmen will generally
not be regarded as acting below the standard of care if by accident he
shoots innocent bystanders.

Causation in fact (but for test)

The claimant must next show that it was the defendant’s breach of his duty
towards him that caused the harm that he the claimant has suffered. The
claimant must show as a matter of fact that there is a clear linkage between
the breach of duty and the resulting harm. In Barnett v Chelsea and
Kensington Hospital Management Committee, a patient who had been sent
away by a doctor in the casualty department without an examination or
treatment, died from arsenic poisoning five hours later. The court held that
breach of duty did not cause his death. There was evidence that even if he had
been examined, it was too late for any treatment to save him, and therefore it
could not be said that but for ( hence the name but for test) the hospital’s
negligence, he would not have died.

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Remoteness of damage (causation in law)

Even though the claimant is able to show that in fact the defendant action
caused the harm, he must also show that the kind of harm he suffered could
have been reasonably foreseen, i.e. that the kind of harm was not too
farfetched and that any reasonable person could have seen that kind of harm
coming. The leading case on this principle is The Wagon Mound (No. 1)
(1961). In this case the court held that when the ship in the circumstances
spilled oil, it could have been reasonable foreseen that damage by oil to the
wharf was probable, however, no one could have foreseen that the oil would
have ignited on water and resulting in the wharf being destroyed by fire. That
kind of harm was remote i.e. unforeseeable and farfetched.

But a rule has been developed in exception to this. It the defendants negligence
has caused unforeseen harm due to the physical make up of the claimant, the
remoteness principle will not work. This is called the thin skull rule and states
that a defendant must take his victim as he finds him: see the case of Smith
v Leech Brain.

Defences to a claim in negligence:

The defendant has two approaches, namely (a) he can show that the plaintiff
has not been able to establish at least one or more of the above stated
elements, for example the plaintiff might not have been able to show that the
harm he is complaining of is not too remote.
(b) The defendant may accept that the plaintiff has been able to establish all
the elements but that he the defendant has one of the general defences e.g. –
volenti non fit injuria or the partial defence called contributory negligence.

Remedies

Remedies refer to what the plaintiff will get from the court if he wins the case.
These would include;
- Damages (money compensation)
- Injunction (an order of the court stopping the defendant from carrying on
the conduct about which the complaint has been made.

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Trespass to the person

As stated earlier, this tort consists of three sub torts, namely:

- Assault
- Battery
- False imprisonment

Assault

According to the case of Collins v Wilcock, an assaut is any act which causes
another person reasonably to fear the infliction of immediate unlawful force on
his person. The elements of the tort which the claimant must prove are:

(i) fear of immediate force e.g. P claims the D has pointed a gun at him. It
does not matter if the gun is empty or an imitation firearm, as long as P
reasonable believed otherwise.

(ii) That the defendant acted intentionally :Wilson v Pringle, because if the
defendant was careless, then the claimant should bring his action in the
tort of negligence and in which case he will have to prove subsequent
harm.

Defences to a claim in assault include:

- Volenti non fit injuria (consent)

- Self-defence
- Lawful authority e.g. police acting under powers of arrest or parent
exercising parental control-however this must conform with the Child
Care and Protection Act and must be in and for the welfare of the
child.

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Battery
According to Collins v Wilcock battery means the actual infliction of unlawful
force on another person. However, there is no need to prove violence because
any force no matter how slight will be enough. In F v Bershire Health
Authority, the court expressed doubt whether the touching must be hostile and
went on to say ‘ a prank that gets out of hand, an overfriendly slap on the back,
surgical treatment by a surgeon who mistakenly thinks the patient has
consented to it, all these things may go above the bounds of lawfulness, without
be regarded as hostile’.

Elements of battery therefore are:

- application of force and
- intention
Defences are the same as in assault

False Imprisonment

According to Collins v Wilcock, false imprisonment was defeined as the

unlawful imposition of constraint on another’s freedom of movement from a
particular place. The following point should be noted:

- Imprisonment does not mean being locked up in a gaol or prison. As

long as you bar a person for going about their lawful business that
will constitute imprisonment. Therefore if you hold down someone to
beat them up, or lock someone in your car or in a room so that they
cannot go about their business, that will also be false imprisonment.

- It does not matter whether the plaintiff knew that he was imprisoned
as long as this was so as a matter of fact. The argument was put
forward by the court in Meering v Grahame-White Aviation Co. Ltd
where was stated that the plaintiff’s lack of knowledge was irrelevant
so a person could be falsely imprisoned while he was unconscious or
insane or otherwise unaware of his position. In the Meering case, the
Plaintiff was questioned at his employer’s office about stealing paint.
Unknown to him, two police officers remained outside the door during
the questioning. The defendant employer was held liable for false
imprisonment even though the plaintiff believed he was quite free to
leave if he wanted to.

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Defences to false imprisonment is the same as for assault and battery.

Defamation

The rules of the tort of defamation are used to protect the individual’s
reputation. It comes in two forms, namely:

- Libel
- Slander

Libel refers to defamation that is in a permanent form, that is, in some form of
writing, print or electronic media.
Libel is said to be a tort which is actionable per se. A tort is said to be
actionable per se when the plaintiff does not have to prove to the court that he
has suffered any harm or loss. (therefore, negligence is not actionable per se
because the plaintiff has to prove harm as one of the elements).
Another important detail about libel is that it can also be prosecuted as a
crime.

On the other hand, slander is defamation in a non- permanent form. This

would include word of mouth statements and gestures.
Slander is not actionable per se, which means that the plaintiff must show how
he has suffered harm or loss from the defendant’s statements. However,
slander can become actionable per se if the defendant statement falls into any
of the following categories:
- He makes allegation that the plaintiff has a communicable disease
such as HIV/AIDS
- He makes allegation that affects the plaintiff in his job or calling, e.g.
saying that a police is giving favours to a particular political party
- He makes allegation that a woman is of loose or unchaste character,
e.g. accusing her of prostitution
- He makes allegation that the plaintiff ins involved in arrestable
criminal activities e.g. theft or other serious crimes.
Finally, unlike libel, slander is always considered as a tort.

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Whether the action in defamation is for libel or slander, the same elements
must be proven by the plaintiff, namely:

(i) That the defendant made a defamatory statement. A defamatory

Statement, according to the case of Sim v Stretch, is a statement which
tends to lower the reputation of the plaintiff in the minds of right-minded
people in society. It is more than just vulgar abuse or statements made
off the cuff in a heated argument. This is the difference between an insult
and a defamatory statement.
Sometimes the statement may be in the form of an innuendo, that is, a
statement which may appear innocent but has a hidden defamatory
content. For e.g. where a bank returns a cheque with the remark “refer to
drawer”. This is giving the impression that the person who drew the
cheque is dishonestly making cheques when he has no money in the
account. This may amount to a defamatory statement.

(ii) That the defamatory statement refers to the plaintiff. The statement
made must be shown to have identified the plaintiff in person or, if the
group is small, then the group itself (see the case of Knupffer v London
Express Newspapers). However if the statement refers to a class or large
unidentifiable group, the action will fail e.g. all accountants are crooks!

(iii) That the defamatory statement was published. The publication must be
shown to have been made to a person other than the defendant or the
defendant’s spouse. Publication takes place if someone sends a letter
containing the defamatory remark if they were aware or could have
anticipated that the letter would be read by a third party, for e.g. the
secretary of a manager is generally expected to sort and or go through
the bosses mails. However, if it could not be anticipated then publication
would not have taken place. For example in Huth v Huth, a letter was
sent in an unsealed envelop by the defendant to the plaintiff. The butler
secretly read the letter without permission. The court did not regard this
as a publication because the defendant could not have anticipated the
behaviour of the butler.

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If the plaintiff is able to prove all three of the elements of defamation stated
above, then he is likely to be successful unless the defendant has any of the
following defences available in the circumstances. These defences are:

- Justification or truth
- Fair comment on a matter of public interest. (this defence will fail if
the plaintiff can show that the defendant acted with malice).
- Absolute privilege i.e. statements in Parliamentary or court
proceedings are protected against actions in defamation
- Qualified privilege. This operates to protect statements made between
persons who have a duty to make the statement to a person who has
a right to receive it, e.g. between employers and employees. It also
protects accurate publication of Parliamentary or court proceedings.
However, this defence may also be destroyed by malice.

If the plaintiff/claimant wins the case, then the remedies he may be entitled to
include:
- Damages
- Injunction

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The Law of Nuisance
In everyday language nuisance means some form of annoyance that interferes
with the individual’s ability to go about their business in peace.
This is generally the view taken of nuisance in law. However, what the law is
prepared to call actionable nuisance is more strict and narrow in definition.

In the first instance, the law creates a difference between what is called:-
- Public nuisance and
- Private nuisance

Therefore, each must be dealt with separately.

Public Nuisance

Public nuisance refers to any annoyance or interference which will tend to

harm or create discomfort for the public or a substantial part of it. Based on
this, a number of differences may be noted between public nuisance and
private nuisance:

- Public nuisance may be both a crime and a tort while private

nuisance is always only a tort
- Public nuisance is not limited to interference with a land owners use
and enjoyment of his land, while private nuisance is always connected
to land owners use and enjoyment of land
- Only a person with an interest in land may bring an action in private
nuisance while any person who is able to show that they have
suffered special damage over and above everyone else in the
public who had been generally affected by the annoyance, may
bring an action in public nuisance as a tort.
- Generally, it is the Attorney General or a public official under a
particular statute who may bring an action in public nuisance, while
it is the private citizen whose land has been affected who may bring
an action in private nuisance
- A single action can give rise to a public nuisance law suit while the
action or consequences of the action must have been continuing for
some time before it will be actionable in private nuisance.

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Example to consider: The recent noxious fumes that were released from the
Kingston wharf area may be regarded as a nuisance.

It may be regarded as a public nuisance because it affected a large part of the

public. Generally everyone who had been affected in a general way could not
sue in public nuisance in this instance; it is only the relevant government
agency that may be able to act against whoever is deemed to have been the
wrongdoer. However, it was reported that workers at the toll booth at the
Portmore Toll was so badly affected that they had to be hospitalized. These
persons may sue using public nuisance because they suffered special damage
over and above everyone else who was affected.
On the other hand, even though it might have affected land owners in the
vicinity, those land owners would not be successful in bringing an action in
private nuisance because it was a onetime event and the consequential
annoyance was short-lived.

Private Nuisance

Private nuisance refers to the unlawful indirect interference with a

person’s use and enjoyment of his land. The interference may take the form
of
- Physical damage or injury: see the case of St Helen’s Smelting Co. v
Tipping

- Interference with access to property: In Hall v Jamaica Omnibus

Services Ltd. the appellant erected a wall along the boundary of his
premises adjacent to a public sidewalk in Kingston, for the purpose of
providing advertising spaces for rent. Shortly afterwards, the
respondent erected a bus shelter on the sidewalk immediately in front
of the main advertising space of the appellant’s wall, despite the
appellant’s objections. The bus stop was placed about 8 cm from the
wall and was so close that it not only prevented the appellant from
displaying and advertising material, but deprived him of access to the
wall for the purposes of cleaning and painting. The Court of Appeal of
Jamaica held that the appellant had a right of access to his wall and
he had been denied this right by reason of the bus shelter. The
respondents were therefore liable for damages in private nuisance.
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- Substantial interference with the plaintiff’s use and enjoyment of
his land: such interference taking the form of smell, fumes, smoke,
noise and other such matters.
However, where the plaintiff is complaining about any of these stated
annoyances, he may be required to satisfy the court about any of the
following factors, depending on the circumstances of the case:-

(i) Locality – if the area is a generally smoky or noisy area, then the
plaintiff might be unsuccessful. The law is that people in an
industrial area cannot expected to enjoy the clean air to be found
in a residential or rural community
(ii) Sensitivity of the plaintiff – if the plaintiff is putting is land to
such a special use that any or most activity on the defendant’s
land will cause him annoyance, injury or discomfort, he will not be
able to complain. For example, the plaintiff wanting to sleep during
the daytime when his neighbour wants to do normal noisy activity
around his house.
(iii)Duration – the nuisance complained of must have been going on
for some time.
(iv) Malice – where the defendant is deliberately making noise on his
land in order to annoy the plaintiff, the plaintiff’s action in
nuisance against him will be successful.
(v) Social benefit of the defendant’s action – where the action of the
defendant is of social usefulness to the community, it is unlikely
that the plaintiff’s action against him will succeed; for example, in
Miller v Jackson the Court of Appeal of England refused to grant
an injunction to prevent the Defendant from playing cricket even
though it affected the Plaintiff’s use and enjoyment of his land
because the Court felt that the usefulness of the cricket club
outweighed the Plaintiff’s interest.

From the above stated factors it may be seen that what the court is
trying to do when it comes to private nuisance involving
substantial interference, is that it is trying to balance the
respective interests of both claimant and defendant in a world
where people are expected to give and take.

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Defences to Private Nuisance

Where the plaintiff has brought an action in private nuisance against the
defendant, the defendant may use the following defences where appropriate:-

- Prescription: This defence states that where the nuisance has been
going on for more than twenty (20) years against the same plaintiff,
that plaintiff loses his right to bring an action against the defendant.
- Statutory Authority: Where the state authorizes the activity
that is causing the nuisance and if it is not in violation of the
plaintiff’s constitutional rights, then the plaintiff’s claim will not
succeed.

NB This is another difference between public and private nuisance, that

is these differences are not available to an action in public nuisance
because as you may recall public nuisance is also regarded as a crime.
You will not be allowed to say that because you have been committing
the crime for 20 years then you should be allowed to continue! Nor will
the State be permitted by the courts be offend others criminally.

Remedies of the Plaintiff

If the plaintiff is successful, then he may get the following remedies:-

- Damages: that is a sum of money to compensate for any injury, loss

or harm suffered as a consequence of the nuisance.
- Injunction: that is, an order of the court ordering the defendant to
cease the activity that is the cause of the nuisance
- Abatement: This remedy is a type of self-help which allows the
plaintiff to take steps to end the nuisance. For example, cutting down
branches that hang over and are shedding leaves on the plaintiff’s
land. However the plaintiff should not enter upon the defendant’s land
to do so without notice or permission or he, the plaintiff, may be sued
by the defendant for trespass to land.

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Occupiers Liability

This is a tort under a law called the Occupiers Liability Act. According to this
Act, an occupier of premises is liable to all lawful visitors to their premises, to
see to it that the visitors are safe in using the premises for the purposes for
which they were invited to be there. The Act does not apply to trespassers.

The following rules have been developed in relation to the Act:

- Who is an occupier for the purposes of the Act? An occupier is anyone

who has control of the premises in question: see Wheat v Lacon.

- Premises include, but is not limited to, building, land, aircraft or other
vessels and even a ladder has been held to be premises for the
purposes of the Act.

- What level of care or responsibility does the occupier owe to visitors?

The level or standard of care owed depends on the class of visitors.
This include:

(i) Adult visitor – the occupier owes a common duty of care,

that is, the occupier must ensure that the visitor is
reasonable safe, not 100% safe, as an occupiers is not
expected to foresee unforeseeable events such as an engine
falling off an aircraft and striking a visitor on his premises!

(ii) Children – The occupier must allow for children to be less

careful than adults and therefore put special precautions in
place to safeguard for this eventuality: see Glasgow
Corporation v Taylor. However, the occupier does not owe a
duty to very young children as they are expected to be in the
care of their caregiver: see Phipps v Rochester
Corporation.

(iii) The occupier does not owe the same level of care to skilled
visitors who are on his premises to carry out their job or
calling and who should be able to anticipate dangers
associated with their jobs: see Roles v Nathan.

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The following important points in relation to liability of the occupier should be
noted:

1. The occupier may escape liability by posting clear signs of potential

danger on his premises such as WET FLOOR/ HIGH VOLTAGE-KEEP
OUT/ELEVATOR OUT OF ORDER. Once these signs are clearly posted,
the occupier may use the defence of exclusion/disclaimer of liability or
even the volenti defence to escape responsibility.

2. If the harm is caused by an independent contractor working on the

occupiers premises, the occupier will not be liable so long as he has
taken reasonable care in entrusting the work to reasonably competent
contractor and he has, within the level of his experience, check that the
work is properly done: Hazeldine v C A Daw & Sons Ltd.

Liability to Trespassers

Trespassers are not protected under the Occupiers Liability Act in Jamaica,
instead, they must rely on the common law principles laid down in British
Railways Board v Herrington. In this case the court stated that although the
occupier did not owe the trespasser a duty of care, he does owe a duty of
common humanity to act in accordance with the standards of civilised
behaviour. In order to rely on these principles, the plaintiff (trespasser)
must show:-

- That the occupier knew of the presence of the trespasser

- That he has not done what is reasonable to keep out or chase off the
potential trespasser.
- That the occupier knew of dangerous situations existing on his
premises
- That the occupier did not place any reasonable notification of that
danger.

Furthermore in Ellis v Jamaica Railway Corporation the court of Appeal

stated that ‘an occupier is required in accordance with his duty of common
humanity to take reasonable care regarding the well-being of a trespasser
where:

1. there is a foreseeable risk of his acts doing harm to the trespasser or

2. he knows of the presence of the trespasser
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In this case, a trespasser tripped and fell on a railway track and was seriously
injured when struck by a passing train. The Court of Appeal of Jamaica held
that the defendant railway authority could not contemplate a person prone on
the railway line. While it is reasonably foreseeable that persons could walk
across the line, it would not be within one’s contemplation that someone,
whilst walking, would fall and would therefore be lying across the track.
Therefore, there was no breach of the duty of common humanity and seeing
that the driver of the train did all that he reasonably could to avoid hitting the
claimant, there was no negligence on the part of the defendant either.

Two major defences in the law of Tort

1. Volenti non fit injuria – To the willing no harm is done

This defence is similar to saying that the plaintiff or claimant consented to the
injury about which they are now complaining. If the defendant is successful in
establishing this defence, the plaintiff will get nothing in compensation and the
defendant would have escaped liability. For the defence to work, the defendant
must show:-
- That the plaintiff both understood the risk involved and voluntarily
consented to take the risk. Compare the following cases:

Smith v Baker
In this case, the plaintiff who worked in a quarry, was injured when a
stone fell from a crane which his employers negligently used to swing
stones above his head. When sued, his employers pleaded the defence
of volenti. They were able to show that the plaintiff knew of the risk of
injury, but they could not show that he freely consented to run that
risk (because he may have continued to work under the crane
through fear of losing his job). Therefore, the plaintiff was able to win
the case.

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 ICI v Shatwell

In this case the plaintiff and his brother, who were experienced in
the handling of explosives, disregarded their employer’s
instructions and tested some detonators without taking adequate
precautions. The plaintiff was injured due to his brothers
negligence, and sued the employers on the basis of vicarious
liability given that they were the employers of his brother as well.
The employer’s use of the volenti defence worked and the plaintiff
got nothing because he knew the risk that he was taking and he
took it voluntarily: therefore he has no right to complain.

2. Contributory Negligence

This defence is not a full defence that will cause the defendant to escape
liability, that is, if the defendant is successful in proving contributory
negligence, the court will reduce any damages awarded to the plaintiff by a
certain percentage.

The defence is on the basis that the plaintiff has acted in a way that
contributed to the injury that he is complaining about. The burden of proving
contributory negligence is on the defendant to show that the plaintiff failed to
take reasonable care for his own safety.

Cases

In Sayers v Harlow

The plaintiff was injured when due to the negligence of the Council operators of public
toilets she was accidentally locked in. In order to get out she climbed onto the toilet
paper holder which gave way and she was injured.

The court held that the defendants were negligent but that the plaintiff’s action in
doing what she did contributed to her injury. Her compensation was reduced.

Froom v Butcher

The court held that failure to wear a seatbelt amounted to contributory negligence.

Owens v Brimmell

The plaintiffs compensation was reduced by 20% because he knowingly accepted a lift
from a drunken defendants. (However see the case of Dann v Hamilton for a useful
comparison)

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