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PRELIMINARY MATTERS - Express consent

• Derived from tortus: meaning broken or twisted - Presumption of consent: presumption of consent to all
• Obligation is based on the operation of law independent of non-hostile contacts merely incidental to living in a
the consent or agreement of parties. community.
- Iura in rem: rights against all persons - Privileged contact (allowed by law): looks at nature of the
• Aimed essentially to maintain the status quo. Also: act and the intention with which the act was done.
- Protection of certain interests against certain types of Cole v turner (Holt CJ): “the least touching of another in anger is
wrongful behaviour. battery. If 2 or more meet in a narrow passage and without any violence
or design of harm, one touched the other gently, no battery. But if one in
- giving redress to wrongs suffered by individuals through a desire to gain advantage shoves another aside in an inordinate and
monetary compensation. violent manner, this is trespass.”
• An act can be both a tort and a crime. • Trespass is actionable per se but proof of damage will attract
• Springs from 3 writs: consequential damages [Miller V AG]
i. Trespass vi et armis et contra pacem regis
ii. detinue
iii. Trespass on the case 2. ASSAULT
• An intentional conduct which puts a person in reasonable fear
Trespass vi et armis (direct damage) or apprehension of imminent danger.
• Direct unauthorised act by the defendant • To constitute an assault there must be an act constituting a
• Actionable per se threat to do personal violence to the party complaining
- Trespass to the person- vi et armis coupled with a present ability to carry out that threat.
- Trespass to goods- de bonis asportatis - Read v Coker: D’s workmen surrounded P, and threatened to
- Trespass to land- quare clausum fregit break his neck if he did the not leave.
• Has all elements of battery except physical contact
Trespass on the case (Consequential damage) Miller v AG: To point a loaded revolver at another person in such a
• Responsible for greater part of modern law of torts. E.g.: hostile manner and within a shooting distance as in the present case, and
which conduct put the other person in reasonable fear or apprehension of
Nuisance, conversion, deceit. Defamation, malicious an immediate battery constituted an assault
prosecution, negligence • Mere words per se no matter how menacing do not constitute
• Actionable upon prove of actual damage assault.
Basis of liability - Word that create a reasonable apprehension of imminent
physical contact constitute assault
• Liability is for misfeasance i.e. positive actions causing ▪ R v Wilson: “get out the knives”
damage - Words accompanying an act can negate assault.
• No liability without fault ▪ Tuberville v Savage: P put his hand on his sword and said
- Except Ryland’s v Fletcher: strict liability “if it were not the assize-time, I would not take such
• Nominate torts refer to specific interests of the P which are language from you”
infringed and define conduct which constitutes the wrong e.g. Bruce v Dyer: Usually, when there is no actual intention to use violence
false imprisonment. Negligence is an exception there can be no assault. When there is no power to use violence to the
• Fault: based on either intentional act or negligence of D knowledge of the P there can be no assault. There need not be in fact any
i. Intentional conduct: party’s inadvertence to his conduct actual intention or power to use violence, for it is enough if the P on
and its consequences combined with a desire for those reasonable grounds believes that he is in fact in danger of violence. So, if
a person shakes his fist at another, the person so assaulted may strike
consequences. back, if on reasonable grounds he believes that he is in danger.
- Proved where the person doing the act knows of the
substantial certainty of the result.
- Prove of mere foreseeability: recklessness or negligence 3. UNLAWFUL ARREST
ii. Negligence (as a mental element of intentional torts): total or Common Law
partial inadvertence of the D to his conduct or its Criminal Procedure Code, 1960 (Act 30)
consequence. Articles 14 & 21 of Constitution
• Objective approach is used to determine intention - Art. 14: protection of liberty except for lawful arrest or
• Law looks at the effect produced to determine whether D’s custody by the State
act was so calculated to produce some effect that an intention - Art 21: general freedoms incl. movement
to do so should be imputed to him
“If in the circumstances, he had knowledge that certain consequences will • Police officer’s powers of arrest at common law:
substantially result from his act, then he had the desire (intends) for those Christie v Leachinsky (Viscount Simon): ‘(1) If a policeman arrests
consequences. (Streets on Torts) without warrant upon reasonable suspicion of felony, or of other crime of
a sort which does not require a warrant, he must in ordinary circumstances
TRESPASS TO PERSON inform the person arrested of the true ground of arrest. He is not entitled
to keep the reason to himself or to give a reason which is not the true
1. BATTERY reason. (2) If the citizen is not so informed but is nevertheless seized, the
Intentional application of force to another by direct means or policeman, apart from certain exceptions, is liable for false imprisonment.
through unwelcome physical contact, irrespective of whether (3) The requirement that the person arrested should be informed of the
reason why he is seized naturally does not exist if the circumstances are
intent to harm or hostility is involved. such that he must know the general nature of the alleged offence for which
• Elements (6) he is detained. (4) The requirement that he should be so informed does
i. Direct act: D’s conduct must have caused the basis of the P’s not mean that technical or precise language need be used. The matter is
complaint. a matter of substance, and turns on the elementary proposition that
- Scott v shepherd: D threw a squid in a market place which in this country a person is, prima facie, entitled to his freedom and is
subsequently injured P. only required to submit to restraints on his freedom if he knows in
ii. Voluntary act: refers to whether the D was in control of his substance the reason why it is claimed that this restraint should be
actions. imposed. (5) The person arrested cannot complain that he has not been
- Gibbons v Pepper: horse on which D was running took fright supplied with the above information as and when he should be, if he
and runaway with him injuring P. Held to be battery as he was himself produces the situation which makes it practically impossible to
the one riding the horse and no one whipped the horse. inform him, e.g., by immediate counter-attack or by running away.
iii. Positive act: “not doing is not trespass”. Actual exertion
required. 1. Arrest with a warrant (Sec 71-81 of Act 30)
iv. Intentional or negligent act • Warrant can be issued only by a judge upon compliant or
v. Physical contact with the person of the P: charge made before him on oath.
- Miller v AG: In order to found an action in assault and battery, • Warrant remains in force until execution or cancellation by
there must have been a direct and intentional application of the court
physical force to the person of the P by the D, such as a blow
inflicted with the hand or with a weapon or some other object. • Person executing the warrant must bring arrested person
- It is trespass to take fingerprints if a person in custody but before the court mentioned in the warrant with an
not yet convicted or committed for trial without his endorsement showing place and time of execution.
consent [Dumbell v Roberts] • Police can search premises of a lawfully arrested person and
vi. Lack consent [Nash v Sheen] seize material relevant to the prosecution of said crime.

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• Requirements of warrant: Must - Asumani Bugembe v AG: P assaulted police officer and
- State briefly the offence with which the person against pulled him out of shop before he could lay hands on P and
whom it is used is being charged arrest him
- Indicate the name or other description of the person
- Order the person(s) to whom it is directed to apprehend 4. FALSE IMPRISONMENT
the person and bring him before the issuing court or other • Protects rights guaranteed under Art 14,15 & 21 of Const.
court with jurisdiction to answer the charges against him. Art 14: Any person who is unlawfully arrested, restricted or detained by
any other person shall be entitled to compensation therefrom that other
2. Arrest without a warrant (Sec 10 & 12 of Act 30) person.
2.1. Arrest by a police officer (Sec. 10) • Founded on imprisonment and absence of justification.
Assumption is that D departed from due process.
• May arrest without warrant any person who: Appiah v Mensah: False imprisonment is a complete deprivation of
- Commits an offence in his presence liberty for any time, however short, so long as it is without lawful excuse
- Obstructs a police officer in the lawful execution of his
duty • Elements:
- Has escaped or attempted to escape from lawful custody i. Imprisonment without justification by the defendant.
- Had in his possession any implement adapted or intended - Warner v Riddiford: To constitute imprisonment it was
for use in the unlawful entry of any building and gives no not necessary that the person should be locked up within
reasonable excuse for same 4 walls but that he was restrained in his freedom of action
- Has in his possession anything which may be reasonably by another.
suspected to be stolen property. ii. The imprisonment must be total. i.e. confined in all
• May arrest without warrant any person whom he suspects directions.
upon reasonable grounds of: - There was either no reasonable means of escape or
- Having committed a crime - The P, as a reasonable person, did not known and was not
- Being about to commit a crime where expected to know of any reasonable means of escape.
▪ there is no other practical way of prevention of the iii. Direct act from the D i.e. the D must have imprisoned the P
crime by himself or caused a law enforcement agent to effect the
▪ such person is found in a yard, highway or other imprisonment.
place at night - Narwu v Armah: Where a complainant gives
- Being a person who a warrant of arrest has been issued information to a police officer and the officer acts
- Being a deserter of the armed forces according to his own judgement and makes an arrest, the
- Having committed an act outside GH which would have C incurs no liability for F.I. But where the C does not
been a crime if committed in GH. merely give information but directs the officer to effect
• Test for reasonableness: “whether a reasonable man, assumed the arrest, the officer in that case is considered as the
to know and possessed of the information which in fact was servant of the C and the C will be liable for F.I
possessed by the D would believe that there was reasonable - Where information given by the C on which the P is
and probable cause.” [Dallison v Caffrey (Lord Denning)] arrested is false to C’s knowledge, F.I will lie [Musa v
Limo Wulana
2.2. Arrest by a private person (Sec. 12) iv. Intentional act of the D. i.e. the D, as a reasonable person,
• May arrest without warrant any person who in his presence must have had foresight that his act would result in the
commits any offence: imprisonment of the plaintiff.
- Involving the use of force/violence - Merely failing to facilitate the departure of a person from
- Whereby bodily harm is caused to any person one’s premises does not amount to F.I.
- In the nature of stealing or fraud ▪ Herd v Weardale Steel: company refused to
- Involving injury to public property convey miner who had stopped work before time
- Involving injury to property owned by or in the lawful and kept him there until the end of his shift.
care/custody of the private person
• May also arrest any person who he reasonably suspects of MALICIOUS PROSECUTION (an action on the case)
having committed any of the 5 offences • Assumption is that although the process is regular it has been
- The offence must have actually been committed perverted.
• For the arrest to be lawful: • Time does not start to run until the P’s acquittal
- The basis of the arrest must be reasonable • Elements (Musa v Limo-Wulana):
- The arrest must relate to one of the 5 offences i. Proof of prosecution by the D: i.e. must establish that D
- The offence must actually have been committed by the himself conducted the prosecution or procured, instigated,
person arrested. directed, ordered or was actively instrumental in the
Walter v Smith: D arrested P upon suspicion that he had been stealing prosecution being set in motion.
from his bookstore and selling in his own. - D is not liable if he merely reported the matter to the
Held: Where a person instead of having recourse to legal proceedings by police who do their own investigation before charging.
applying for a judicial warrant for arrest or laying an information or
issuing other process well known to the law gives another into custody, - To go with the police to point a person out is not to
he takes a risk upon himself by which he must abide, and, if in the result, prosecute him.
it turns out that the person arrested was innocent and that therefore the - D is liable if he lies to obtain the prosecution of P.
arrest was wrongful, he cannot plead any lawful excuse. - The prosecution must be criminal.
▪ Civil Exceptions: bankruptcy and winding up
When Arrest becomes unlawful; If ii. Termination of trial in P’s favour: P must have been
i. The person is not told he is being arrested. acquitted and discharged of the offence. Includes
- Asante v The Rep: where the policeman merely told the - conviction on lesser offense.
A that he was wanted at, or being invited to the police - Acquittal on appeal
station, A was not legally obliged to go there for a mere - An entry of nolle prosequi by the AG or his authorised
chat” official under Article 88 of constitution.
ii. The arrest does not follow due procedure set out under law Nana Akuamoah Boateng v Yeboah: Y was asked after being found
empowering the arrest. guilty after arbitration for paying money to Kontihene without N’s
iii. The person is not told true reason for arrest. consent, to pay moneys as pacification. After payment they reported
iv. The officer has a warrant but not at the time of arrest and N to the police for extorting from them. When police refused to
prosecute, Y instituted private prosecution in the district court. Prima
person was not at time committing a crime that permits arrest facie case was found against N but AG subsequently entered a nolle
without warrant prosequi. Held: on the evidence there was want for reasonable and
v. More restraint than necessary to prevent his escape is used. probable cause from which in the circumstances an inference of
malice could be made. The prosecution had damaged the fame and
Exceptions: circumstances under which these infractions would reputation of R.
not make an arrest unlawful.
i. if the person is caught in flagrante delicto i.e. caught red- iii. Absence of reasonable and probable cause:
handed Hicks v Faulkner: reasonable & probable cause is “an honest belief
ii. if the person makes it impossible to carry out due procedure in the guilt of the accused based upon a full conviction, founded
upon reasonable grounds, of the existence of a state of

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circumstances, which, assuming them to be true, would reasonably • Capacity to sue

lead any ordinary prudent and cautious man, placed in the position - Actionable at the suit of the person in possession or with
of the accuser to the conclusion that the person was probably guilty right of immediate possession of the land at the time when
of the crime imputed.’ the trespass was being committed.
Depends on ▪ possession: occupation or physical control of the
- The relevant facts known to the D at the time the land and the power to exclude others.
prosecution was initiated. (objective test) Wuta Ofei v Danquah: D built on Ps land although P had put pillars on
the land after acquisition. Held: trespass
- The genuineness of the D’s belief based on those facts
(subjective test) -Proof of ownership or occupation is prima facie proof of
- Legal advice from counsel who is fully briefed and possession.
apprised of the full facts will absolve D from liability. - An owner not in possession can only sue if act affects his
- Want of reasonable and probable cause should be reversionary interests
established by itself and not inferred from the existence of - Trespasser in possession incl. adverse possessor has a title
malice. good against the whole world except the true owner
iv. Malice [Owiredu v Mim Timber]
- Prosecution of P on any motive for other than bringing - A tenant may sue landlord during tenancy
him to justice. - If a person uses a public access route for purposes other
- Where justice is present but other motives are present as than passing, the owner of the land on which the road lies
well, the court will determine the primary motive. can sue in trespass
v. Heads of Damage: Saville v Roberts: • No capacity to Sue
- Name - Mere use of land, without exclusive rights of possession
- Person (i.e. he could lose his life or liberty) - Mere occupation of premises
- Property (i.e. if he is made to incur charges and expense ▪ E.g. employer accommodation, hostel hotel
for his defence) • Subject Matter
- General rule is that he who owns the land is presumed to
own everything “up to the sky and down too the centre of
THE RULE IN WILKINSON V DOWNTON the earth” i.e. owns the surface, sub-soil and airspace.
• An action on the case for intentional affliction of physical - Bernstein of Leigh v Skyviews General: “the right of the
harm by indirect means. owner of land in the airspace above his land is restricted
to such height as is necessary for the ordinary use and
• Elements: enjoyment of his land and the structures on it.”
i. Deliberate or wilful act or misrepresentation - Section 29, Ghana Civil Aviation Act, 2004 (Act 678):
ii. Calculated to cause harm to the P no action can lie in respect of trespass or nuisance by
iii. Actually causing harm to the P reason if transient harmless incursion of an airspace by an
Wilkinson v Downton: D played a practical joke on P telling her, falsely, aircraft.
that her husband had been involved in an accident and was seriously
injured. She suffered nervous shock and other physical consequences
spending large sums on medical expenses. 2. TRESPASS TO CHATTELS**
Held: an action would lie to recover the expenses on medical treatment. • Committed by intentionally or negligently interfering with a
“It is difficult to imagine that such a statement, made suddenly and with chattel in possession of another.
apparent seriousness, could fail to produce grave effects under the • Provides wider cover of protection than conversion because a
circumstances upon any but an exceptionally indifferent person and mere act of interference is sufficient
therefore an intention to produce such an effect must be imputed. And it
is no answer in law to say that more harm was done than anticipated.” o Fouldes v Willoughby: the slightest touching of a
chattel is actionable as trespass.
• Protects the Claimant’s
INTENTIONAL INTERFERENCE TO PROPERTY. - interest in the physical possession of the goods
1. TRESPASS TO LAND (quare clausum fregit) - interest in the physical condition of the goods
• Intentionally or negligently entering or remaining on or - the inviolability of the goods such that meddling with the
directly causing any physical matter to come into direct goods will constitute trespass.
contact with land in the possession of another. • Actionable per se. No need for any prove of special damage.
• Quare clausum fregit: because every man’s land is in the eye • The D’s act must be the act which causes the trespass.
of the law, enclosed and set apart from his neighbours either • The interference must be deliberately or intentionally made.
by actual physical or invisible boundaries. o No liability for involuntary or accidental acts.
• protects possession not ownership • Capacity to sue
• Elements - The D’s act must disturb the plaintiff in his possession of
i. Direct act the chattel.
ii. Positive act: i.e. affirmative act by D - The chattel must be within his control of physical grasp or
- An omission to act leading to interference with land does otherwise
not constitute trespass. Hamps v Darby: domesticated animals as long as they have animus
iii. Physical Interference with Land. revertendi are in the possession of their keeper who has right to immediate
- Lavender v Betts: landlord, served a notice to quit, and possession.
obtained entry to the property by deceit to the wife of the tenant
whereupon he proceeded to remove the doors and windows so • Exceptions to the rule on possession
that the P could no longer live there. Held: landlord had - Trustees for chattels in the hands of beneficiaries.
committed trespass - An executor or administrators can sue for interferences
iv. Voluntary act which occurred before probate or letters of administration.
- It is immaterial whether the D was aware he was - An owner of franchise which entitles him to goods can sue
trespassing. in relation to interference on goods before he has actual
- If through the actions of others D trespasses on the P’s possession.
land, those others not D will be held liable. Smith v Stone - Bailment
- Mistake either of law or fact is not a defence ▪ For fixed term: bailor has no possession. Only
v. Lack of consent. bailee can sue
- Where a person enters someone’s land by his consent, he ▪ At will: both bailor and bailee can sue third parties.
becomes a trespasser if he refuses to leave when the
consent is revoked.
- He must however, be given reasonable time to leave the
3. CONVERSION***
Kuwaiti Airways v Iraqi Airways: Conversion is the principal means
premises. whereby English law protects ownership of goods. Misappropriation of
- Forcing objects or causing some foreign matter to enter or another’s goods constitutes conversion.
come into physical contact with another’s land is trespass. • Covers wrongly taking, detaining or disposing of chattel
▪ Foreign matter: anything with size or mass e.g. gas belonging to another
vi. Intentional /negligent.
• Historically name trover and modelled upon detinue sur
trover.

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• Conversion is an intentional interference or dealing with the • Remedies

chattel which is seriously inconsistent with the possession or - The value of the thing as assessed
right to immediate possession of another - Specific restitution or else the value & damages from its
Fouldes v Willougby: “a simple asportation of a chattel, without any retention
intention of making further use of it although it may be sufficient - Specific restitution & damages for its detention.
foundation for an action of trespass, is not sufficient to establish a
conversion.”
Differences between detinue & conversion
• Remedies: mere pecuniary compensation • In detinue P is liable to D even where he is no longer in
• Capacity to sue: possession of the goods unless he can show the loss was
- P must have either actual possession or a right to accidental.
immediate possession at the time of the interference. • Action in Detinue is in rem; conversion is in personam.
- Mere possession without title is sufficient to maintain an
action. • Value of goods assessed
▪ Person in possession has sufficient title against the - Conversion: as at the time pf the conversion
wrongdoer who has no rights at all. - Detinue: at the time of the judgement.
Armory v Delamire: chimney sweeper boy sued goldsmith in Standard Chartered Bank (GH) v Nelson: “we think the
conversion for stones stolen out of jewel he found. confusion…arises from the difficulty of counsel and the judges in
appreciating the thin but clear line between the torts of conversion and
- Owner out of possession can sue in an action n the case detinue. In the former, the action is for restitution intergrum, and damages
for damage done to his reversionary interest which respect may be exacted on account of the special quality of the chattel. In the
to interferences which would make the reversionary latter, the dealing with the chattel is unlawful and the action is for the
interest valueless. recovery of the chattel or its value together with damages for
• Possession connotes the power to control and the intention to consequential loss where so warranted or indicated.”
exclude all others from the enjoyment of the chattel. i.e.
animus possidendi and factum. DEFENCES TO INTENTIONAL TORTS TO
- Occupier or owner of a house or land to which things are
attached has a right to them. PERSON & PROPERTY.
▪ Right of true owner will prevail against the finder 1. Inevitable mistake: refers to action where the D did not act
- If they are loose on the land, the nature of the chattel, the either intentionally or negligently.
extent of public access to the land, whether the owner - “an accident not avoidable by any such precautions as a
occupies the land etc will be relevant in deciding whether reasonable man doing such an act there and then would be
the owner of the land has the necessary animus and expected to take.
factum. - Onus of proof is on the P to prove that D acted negligently
• Bailment: bailee of goods may sue in relation to chattels in or intentionally.
his charge. 2. Consent
- Bailor can sue as well if bailment is at will - Anyone who consents to an act cannot complain of
- An involuntary bailee is not liable where although he trespass: volenti non fit injuria
takes reasonable steps to restore goods delivered to him to - Must relate to the act complained of and must be freely
its owner, he mistakenly delivers the goods to another given.
person who he honestly beliefs is the true owner or his - Vitiated by fraud, or if obtained by show of authority,
agent, thus misdelivering the goods. threat of force or actual use of force; or intoxication.
- He will be liable if he was negligent or disposes of the 3. Self-defence: D must show that he committed the trespass in
goods. order to:
• Right to immediate possession: The P must be - defend himself
unconditionally entitled to assume the possession of goods if - That in the circumstances it was reasonable for him to do
he so wishes. so
- A buyer under sale transaction not involving credit has no - That he used reasonable force.
sufficient interest to sue unless he has paid the purchase. 4. Defence of the person of another: justify battery in defence
- Buyer of goods sold on credit may sue if there is no of another incl. a stranger from felonious attacks.
seller’s lien on the goods. 5. Defence of one’s property: a person may use reasonable
• Conversion is based on intentional conduct. force to defend land or chattel in his possession against any
- No need to prove an intention to consciously do wrong. person threatening to commit or committing trespass to the
- Negligence cannot ground an action. property.
- Ignorance and accident are no defence - Force is not justified if the threat is not imminent or has
passed.
• Strict liability i.e. no need to prove fault on D’s part. 6. Necessity
Youngdong Industries v Roro Services (Date-Bah): Conversion is a 7. Abatement of Nuisance:
tort of strict liability. In other words, if an act amounts to conversion, it is
irrelevant to the liability of the tortfeasor whether he/she is aware of that Lemmon v Webb: “I think it is clear that a man is not bound to permit a
fact or not, or is at fault. neighbour’s tree to overhang the surface of his land, however long the
space above may have been interfered with by the growth of the tree. Nor
• Subject matter can it, I think be doubted that if he can get rid of the interference or
- Tangible property: i.e. chattels that can be lost and found. encroachment without committing a trespass or entering upon the land of
- Intangible property (chose in action) if represented in the his neighbour, he may so whenever he pleases and that no notice or
ordinary course of business by a special written document previous communication is required by law.”
e.g. bonds
• Specific examples of conversion 8. Discipline: discipline of the person complaining or on whose
- Where a person in possession of P’s chattel refuses to behalf the compliant of trespass is being lodged.
hand it over upon demand. - The force used must be reasonable.
▪ Withholding for reasonable time to investigate and 9. Contributory negligence
ascertain the title of the person demanding does not
amount to conversion. NUISANCE
- Denying P the right to have access to his own chattel. Based on annoyance and inconvenience. Difference between
▪ Act must constitute absolute denial and public and private lies in the degree and range of exposure.
repudiation of P’s rights.
African Drug v Kumasi City Council: D locked P out of store for non-
payment of rent thus preventing P form accessing his import licence for
1. PUBLIC NUISANCE
drugs. P’s goods were auctioned because he was unable to take delivery. • Protects public health, decency, convenience and safety.
• Crime under Sections 285-298 of Act 29.
4. DETINUE*** • Its effect must be on the public as a whole
• Any legally unjustified detention of a P’s goods. • Individual may sue in torts if he can show that he has suffered
damage over and above that suffered by the public
• P would have to prove that he had right of immediate
possession and that D refused to hand the chattel over on
demand. 2. PRIVATE NUISANCE (action on the case)
• Coterminous with conversion. • Lies in general for indirect non-trespassory interference

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• D is guilty of private nuisance if he does an unreasonable act REMEDIES

which either 1. Damages: P is entitled to compensation. May recover for:
- Indirectly causes physical injury to land - Physical damage to his property
- Substantially interferes with another’s use or enjoyment - Depreciation in the value of his property
of his land or both. - Loss of business from the nuisance
• Reasonableness: The court looks at both the D’s conduct and - Personal injuries
its effect on the P to determine reasonableness. 2. Injunction
Bamford v Turnley: Those acts necessary for common and ordinary use 3. Abatement
and occupation of land and houses may be done, if done reasonably
without risking an action in nuisance e.g. burning weeds RYLANDS V FLETCHER (Blackburn J)
• Considered one of the most important surviving cases of
• Are Surrounding circumstances are relevant? absolute or strict liability in torts.
- Yes: If interference is alleged with P’s enjoyment • The law holds a person liable for harm caused by his act
- No: If interference is alleged with material injury to whether he did it intentionally or negligently i.e. without fault
property. - D will be liable even though he exercised due care to
• Factors the court considers: prevent the escape.
i. Purpose of D’s conduct (mental state): if the D’s primary “a person, who, in the course of a non-natural user of his land,
object in doing an act is to injure his neighbour then that accumulates or is held to be responsible for the accumulation on it of
conduct is in law unreasonable. anything likely to do harm if it escapes, is liable for the damage to the use
ii. Suitability of the locality: whether D is carrying out his activity of the land of another, which results from the escape of the thing from his
in a place suitable or designated for it. E.g. using residential hand. [Streets on Torts]
area for prostitution. • Foreseeability or at least knowledge of the risk is a
iii. Nature of use to which D puts the land: natural user is not per prerequisite to the recovery of damages
se conclusive as to reasonable use.
- Where conduct is inevitable but could be mitigated it will • Elements
be held unreasonable if not mitigated. i. “Non-natural user” of the land: special use of the land which
- Duration of unreasonable conduct is not conclusive i.e. use brings with it increased dangers.
can be on temporary conduct. - It must not be the ordinary use or use for the general
iv. Authorised Acts (Statutory Duties): one must use reasonable benefit.
care when operating under a statute. ii. “Things” within the rule: things likely to do mischief if they
v. Nature of damage: recovery of damages depends on escape.
foreseeability by the D of the relevant type of damage [Wagon - It need not be dangerous in themselves but must have the
Mound (No. 2)] character of causing danger if they escape.
- Material Injury to Property: irrelevant to plead - Only tangible things eg. Gas, humans, water.
suitability of the locality. iii. Accumulation: will not apply to things which accumulate or
▪ Proof of sensible damage to property grow on the land naturally
▪ Injury must be substantial iv. Escape: “Escape for the purposes of applying R v F, means
▪ Injury must have diminished the value of the escape from a place where the D has occupation of or control
property. over land to a place which is outside his occupation” [Read v
- Substantial interference with enjoyment (i.e. personal Lyons]
discomfort or inconvenience) • D is only liable if the thing escaping causes damage.
▪ Interference must be substantial - D will be liable for any injury to land as a result of the
▪ P need not prove injury to health, loss of sleep is escape of the thing as well as consequential damage
sufficient • P with proprietary interest in the land onto which the thing
▪ suitability of the locality is important which caused the damaged escaped can recover.
▪ interference may be substantial even though - Occupier can recover for personal injuries.
temporary
• Capacity to sue and be sued Defences
- One with proprietary or other interest in the land may sue. i. Consent: If P impliedly or expressly consents to the
▪ Owner can sue if he has possession as well as the accumulation of the thing which escapes, he cannot sue if it
tenant escapes.
▪ Reversioner can sue if he can prove that his - P can recover if he establishes negligence where consent
proprietary interest in the reversion has been is proved.
permanently interfered with. ii. The Act of Third Parties: if the escape is caused by the
- The one who created the nuisance can be sued even if deliberate unforeseeable act of 3rd parties.
done through his servants or agents - D is liable if he could have foreseen or prevented the act
▪ He is liable for acts of independent contractors of the 3rd parties and did not,
only if the act done is one which in its very nature iii. Act of God: if an escape is caused, through natural causes and
involves a special danger of the nuisance being without human intervention “in circumstances which no
complained of. human foresight can provide against, and of which human
- Prima facie D is not liable if he did not create the nuisance prudence is not bound to recognize the possibility”.
but if in entering the premises he knew or ought to have - For an extraordinary occurrence to amount to an act of
known of it, then he is liable. God, it must be the kind of thing which happens rarely or
▪ An occupier of land continues a nuisance if with happens once 20, 50 or more years.
knowledge or presumed knowledge of its existence
he fails to take steps to bring it to an end, when he
has ample time for doing so.
▪ He adopts the nuisance if he makes use of the ECONOMIC TORTS
structure causing a nuisance. Acts done intentionally to cause harm to another’s right to earn a
living by unlawful means.
DEFENCES TO NUISANCE
1. PRESCRIPTION (only private): lies where D can show that 1. PASSING OFF (Purest of economic torts)
he has acquired a right to commit the nuisance. • Aimed at dishonest competitive practices.
- Acquires the rights if he has committed the act openly and • Protects traders against misrepresentations aimed at their
without a show of force for 20years before the action. customers, which are calculated to damage their goodwill or
- Nec vi, nec clam, nec precario trade.
2. CONSENT Jif Lemon Case: “the essence of the action for passing off is a deceit
3. STATUTORY AUTHORITY (complete defence): if a practised on the public and it can be no answer, in a case, where it is
statute authorised an activity, then D is not answerable for demonstrable that the public has or will be deceived, that they would not
inevitable interference. have been if they were more careful, literate or more perspicacious”.
- Onus of proof inevitable interference lies on D
4. ABATEMENT OF NUISANCE

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• Examples: - malicious statement e.g. by showing D’s absence of belief

- Selling products in same type of packaging which is in the truth of the statement he made
associated with that of the competitor without - The statement must be a false one made about the P or his
distinguishing them in some way. property
- Using same name as competitor - There must be a publication i.e. made to a 3rd party
- Failure to correct customer’s self-induced - that the false statement caused him pecuniary loss.
misapprehension where he says or does something that
shows that he is mistaking his product for a competitor’s. GENERAL NEGLIGENCE (action on the case)
• Liability is based on the general public sentiment of moral
wrongdoing for which the offender must pay.
2. INTERFERENCE WITH CONTRACTUAL RELATIONS Alhassan Kotokoli v Moro Hausa: “in a strict legal analysis, negligence
(Lumley v Gye principle) means more than heedless or careless conduct whether an omission or
• Committed if a person, without justification, knowingly and commission: it properly connotes the complex concept of duty, breach
intentionally interferes with a contract between 2 other persons and damage thereby suffered by the person to whom the duty was owing”.
• The procurer’s liability is dependent in the contracting party
having done an actionable wrong and is held liable as an 1. DUTY OF CARE
accessory to the liability of the contracting party. • A person cannot be held negligent in torts unless he owned
• Factors (D.C Thompson v Deakin): some duty to the P and the duty is breached.
- There must be a valid contract • The existence of a duty of care in a given circumstance,
- Intention requires knowledge of the contract. i.e. that the depends to a significant extent on public policy considerations
D must turn a blind eye to it and intend to interfere with it as perceived by the judges.
- Recklessness is sufficient • 3 circumstances of duty by precedence: Duty arising from:
- No liability if inducement is to terminate contract lawfully - public calling e.g. surgeon
- P must be the intended target - public office
• Forms of Inducement: - control of dangerous things
i. Direct Persuasion: may be lawful or unlawful • Tests for the ascertainment of the existence of a duty:
- breach must be a reasonable consequence of the - Nature of the interest: the interest infringed must be one
persuasion. which the law protects against negligent conduct.
- D may act through an intermediary - The type of injury: the injury must have been such that a
- Mere advice is not persuasion reasonable man would have foreseen and provided against
ii. Direct Prevention (intervention): where D does an it.
unlawful act to prevent a person from performing his • In novel situations: arises when the person or property of one
contract with another. was in such proximity to the person or property of another that,
iii. Indirect prevention or intervention: a breach must be a if due care was not taken, damage might be done by the one to
necessary consequence of D’s unlawful conduct. the other.
• Defence: justification is available Lord Atkin; Donoghue v Stevenson: neighbour principle: “the rule that
you are to love your neighbour becomes in law you must not injure your
3. CONSPIRACY (offshoot of criminal law) neighbour... you must take reasonable care to avoid acts or omissions
• Consists of an agreement between 2 or more persons to injure persons who are so closely affected by my act that I ought reasonably to
have them in contemplation as being so affected when I am directing my
another: mind to the acts or omissions which are called in question.
- By unlawful means
- In a combination to do a lawful act to injure - 3 factors to be considered (Caparo Industries)
- Doing a lawful act by unlawful means i. Reasonable foresight of harm
• Where a combination to do a lawful act to injure is used, it ii. Proximate relationship between the parties
must be clear that the intention is to damage P rather than to iii. Whether it is fair, just and reasonable to impose a duty in
serve the bona fide and legitimate interests of D. the circumstances.
• Where a D has mixed motives, liability depends on the
predominant one. Rescue Cases
• Defence of justification is available • Negligently creating a situation of danger may entail liability
to a rescuer for injury sustained by him or her in attempting to
4. CAUSING LOSS BY UNLAWFUL MEANS aid a person imperilled.
• Elements (OBG v Allen) Wagner v Int. Rly Co (Cardozo J): “the emergency begets the man. The
- A wrongful interference with the actions of 3rd party in wrongdoer may not have foreseen the coming of a deliverer. He is
which the P has an economic interference accountable as if he had.”
- An intention thereby to cause loss to P Videan v British Transport Commission: the right of the rescuer is an
• Does not include acts which may be unlawful against a 3rd independent right and is not derived from that of the victim.
party but which do not affect his freedom to deal with P. • The rescuer can sue even if the victim is guilty of contributory
• Unlawful means: acts against the 3rd party which are negligence or is excluded from suing by a contractual
actionable by that 3rd party. stipulation.
5. INTIMIDATION (Variant of causing loss) Nervous Shock
• Committed if D threatens to use • 2 theories:
- unlawful means to compel a person to do his wishes to the - Impact theory: shock is only an extension of physical
detriment of that person. injury. Therefore, if no physical injury is foreseeable, then
- Unlawful coercion against A and compels him to act the there is no liability for shock.
detriment of B. - Shock theory: nervous shock is a distinct kind of injury.
Test for liability is whether it is reasonably foreseeable
6. INJURIOUS FALSEHOOD that injury by shock would arise from the D’s negligence.
Ratcliffe v Evans: “an action will lie for written or oral falsehood • Primary victims: where shock is caused to a primary victim
…where they are maliciously published, where they are calculated in the of the negligence, all that the law requires is foreseeability of
ordinary course of things to produce and where they do produce, actual harm, not necessarily of shock. [Page v Smith]
damage.
• Secondary Victims:
• When will an action lie: Mcloughlin v O’Brian: P brought an action for the psychiatric effect of
- Any type of interest in land, trademarks, patent, trade the shock she sustained from seeing the immediate effect of a horrific
names accident involving her husband and children in which 1 child died.
- where business reputation is maliciously disparaged but
no imputation entitling action in defamation is made. - 3 elements to be considered:
• Interference with prospective advantage even social i. the class of persons whose claims should be recognised: The
• Test is whether a reasonable man will take the D’s claim in closer the tie the greater the claim for consideration.
denigration of P’s goods seriously. ii. the proximity of such persons to the accident: it must be close
• To succeed P must prove in both time and space
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iii. The means by which the shock was caused: The shock must - Where P cannot point to the one or any of D’s servants
come through sight or hearing of the event or its immediate who is in control, the rule will be invoked so as to make
aftermath by the P D vicariously liable.
- Foreseeability in any given set of circumstances is ii. The accident must be of such a kind as does not ordinarily
ultimately a question of fact. happen if proper care is taken
iii. Absence of explanation by D: the maxim cannot be invoked
Pecuniary Loss (Hedley Byrne Heller & Partners) where the facts are sufficiently known.
• Recovery for loss of profit or gain without any damage to - Explanation must be exact: D must show from the
person or property explanation that he was not in breach of his duty of care.
• The loss of foreseeable profit should be recoverable only if it • To rely on the maxim, it is not always necessary that it should
was foreseeable to a specifically identifiable person and not be specifically pleaded, but the facts, from which it is intended
just a member of an indeterminate group. that the presumption should be drawn must be pleaded.
• P can recover if the loss: [Nelson v Klutse]
- Is the immediate consequence of D’s negligence - i.e. fair notice to the D that the maxim is to be invoked.
- Arises from damage to person or property • A decision that res ipsa applies entitles the P to judgement
- Is consequent upon injury to person or property unless the D can exonerate himself by either
• In any other case, the loss will be deemed remote and not - giving a true explanation of how the accident occurred
recoverable. without negligence on his part or
- proving that in all circumstances, he has exercised due
diligence.
2. BREACH OF DUTY (Standard of Care)
• Involves measuring the D’s conduct against the standard 3. DAMAGE
required of persons engaging in the activity or conduct in • P must have suffered damage out of D’s breach.
question by the law. - n action for compensation should not be set in motion on
• Standard of care is an objective one: reasonable man a trivial injury: “de minimus non curat lex”
• Reasonable man is the model of the standard to which all Causation and Remoteness of Damage
persons are required to conform. • To establish the relevant causal connection, P has to show that
- “the man on the Madina bus” [Bannerman] on a balance of probabilities the D’s breach cause the loss
- Eliminates the personal equation and is independent of the which he suffered.
idiosyncrasies of the particular person whose conduct is
in question. • “But for” Test: i.e. would the injury have occurred but for D’s
• 5 main factors assessed at the time when the harmful conduct conduct
occurred and having regard to the circumstances. • Novus Actus Interveniens: If there is an intervening act
which the wrongdoer could not have foreseen, the D is not
• Factors: liable because the chain of causation is broken.
i. The likelihood of injury: whether the D is engaging in an - It will not lie if the intervention is the very kind of the
activity which is fraught with danger. which is likely to happen, if want of care which is alleged
- The more dangerous the activity, the greater the degree of takes place e.g. rescue.
care required.
- A person cannot be said to have breached his duty in • Elections: where a person is put in alternative danger and he
respect of injury which is so unlikely that the reasonable elects what to him is the less perilous, D is liable if he is
man will not provide against it. [Bolton v Stone] injured.
ii. The magnitude/Seriousness of the risk: the law requires a - The injury sustained is not to be attributed to rashness and
degree of care which is commensurate with the seriousness imprudence.
of the injury risked.
iii. The Importance or social value of the activity engaged in: Resultant Damage (2 Schools)
where the object to be achieved is of national or societal i. Polemis Rule: used mostly in personal injury cases
benefit, the courts are minded to lower the standard of care. Once D is proved to have been in breach of his duty of care, he is
- Daborn v Bath Tranway: “in determining whether a party is liable for all the direct consequences of that breach.
negligent, the standard of reasonable care is that which is - Directness includes all consequences of that negligence,
reasonably to be demanded in the circumstances…The purpose though in nature and magnitude, those consequences were
to be served if sufficiently important, justifies the assumption of such as no reasonable man would have anticipated.
abnormal risk…In considering whether reasonable care has been ii. Wagon Mound Rule: foreseeability is the test for
observed, one must balance the risk against the consequences of culpability and compensation.
not assuming that risk” - The particular injury for which a claim is made must be
iv. Expenses involved in safety measures as against the risk: reasonably foreseeable.
in the case of very great risk which no precautions can
substantially reduce, the duty of care may be discharged by
ceasing the dangerous operations altogether. DEFENCES
- Where the risk is slight, slight precautions will suffice. 1. Contributory Negligence: where P fails to take reasonable care
v. Compliance with general and approved practice: whether for safety of his own interest in relation to the conduct for
the D’s conduct conformed to standard practices accepted as which he seeks to blame the D.
normal and general by other members of the community in • Part 1; Civil Liability Act 1963 (Act 176)
similar circumstances. - Sec 1: A claim of damage shall not be defeated by reason
- D must show that the approved practice in the community of the fault of the person suffering the damage.
itself is reasonable. - Sect 2 & 3: the courts must in determining the issue of
negligence must determine the relative contributions of P
RES IPSA LOQUITOR (Evidence & procedure in Negligence) & D and reduce the damages to be awarded to P in
• Burden of proof lies on the P or the one alleging to show that proportion to his contribution.
D breached duty owed or that P was injured because D failed • Requires the foreseeability of harm to oneself
to measure up to the required standard of care. • P’s negligence must be operative i.e. in respect of the risk to
• Res Ipsa Loquitor: the thing speaks for itself which his negligence exposed him and not some other risk.
• It is a rule of evidence. 2. Volenti Non Fit Injuria (voluntary assumption of risk): a
• Arises in situations where fairness requires that the D should willing exposure to injury or loss, or its risks, releases others
be called upon to explain what happened. from the duty of care which would normally devolve upon
- i.e. in circumstances where the mere fact that an accident them, provided the willingness is genuine.
occurs raises an inference of negligence against the D. • 3 possible scenarios: P may have
• 3 Conditions (Scott v London & St Katherine Docks Co): - agreed that D was not to be liable
i. The instrumentality causing the accident must be within the - been to blame or either faulty either in whole or in part for
exclusive control of the D. his own injury.
- Control: actual control and the right and opportunity to - To the D conforming to a standard which is lower than
control. normally required by the law.
• D must prove that the P voluntarily and freely with full
knowledge of the risk agreed to incur it.
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• Factors taken into account: fear, poverty, altruism, dependence ii. Entrepreneurial Test: If A is the owner of the business and
and modesty. carries it out for himself and bears the loss or benefits from
• An employee will rarely be held volens, if he was injured while the profit, then A is an independent contractor and not
obeying his employer’s instructions. employer. i.e. the contract is for services not of services.
- Except where the risk he ran was necessarily or ordinarily [Market Investigations Case]
incidental to his work - Where a workman is hired to another employer, the
Bowater v Rowley Regis: “For the purpose of the rule…a man employer who owes him the duty of care is the one
cannot be said to be truly willing unless he is in a position to choose vicariously liable.
freely. And freedom of choice predicates, not only full knowledge of iii. Control Test: considers the person who controls the
the circumstances of which the freedom of choice is conditioned, so workman as his employer and therefore the one who is
that he may be able to chose wisely, but the absence from his mind of vicariously answerable for his wrongs.
any feeling of constraint so that nothing shall interfere with the
freedom of his will. • Tests of Liability
i. Was the servant doing an act of a kind not authorized by the
EMPLOYER’S DUTY TO HIS WORKMEN master or is it just a wrongful performance of an authorized
Wilson & Clyde Coal v English: “a duty which rests on the act. [Lister v Hesley Hall]
employer and which is personal to the employer, to take reasonable - Concentration be on the relative closeness of the
care for the safety of his workmen, whether the employer be an connection between the nature of the employment and the
individual, firm or a company, and whether or not the employer takes particular tort.
any share in the conduct of the operations. ii. Was the servant acting within authorised limits of time?
- Acts within scope of his job:
• The employer owes a duty of care to his workers which is ▪ Stays on for a few minutes after working hours to
personal and of a general nature. complete a given task.
• The employer must protect his employees from foreseeable ▪ Takes slight detour for his own purposes while
harm even if they cannot foresee the ultimate consequences. performing his master’s duties
• The duty is owed to each individual employee. - Acts outside scope of his job:
- Each workman’s particular circumstances which are ▪ Servant on holidays calls at office and injures
known or which ought to be known by the employer will another.
determine the standard of care to be taken. ▪ Takes major detour for his own purposes while
- Merely because one particular employee is likely to suffer performing his master’s duties. (on a frolic of his
greater pain does not impose a duty to take special care in own)
respect of that employee. - It is always a question of degree.
▪ Except where the operation on which the
particular employee is engaged is in itself a • Effect of express prohibition.
dangerous one which needs special care. - Arises where the master expressly prohibits the employee
- The employer is not required by law to dismiss the not to do the very act in the course of which he commits
employees, if this is the only way of avoiding liability. the tort.
• The duty is personal to the employer - Distinction is drawn between
- It is not discharged merely because he engages others to ▪ The mode of doing an act
do the work on his behalf. ▪ The act itself
- He is liable if contracts others to do the work unless he - If the prohibition is regarded as delimiting the scope of the
they exercise reasonable care and are competent to do the servant’s employment, the prohibited act will be outside
work required of them. the course of the employment.
• The actual duties: - If the prohibition is an improper method of carrying out
i. Competent Workman: to appoint and put in charge persons the servant’s authorised duty, the prohibited act will be
competent to deal with the dangers arising in the work. within the course of the employment.
- Covers fellow workmen as well as supervisors put in • Effect of express prohibition.
charge by the employer. - The servant is under a duty to take reasonable steps to
- Competence will depend on the nature and operations of protect his master’s property in the case of emergency.
the employer. - Whether the servant’s act exceeds the implied duty is a
ii. Adequate Tools: the employer must take care to provide matter of degree.
appliances. - Where damage is caused with a car, the fact of ownership
- Employer need not manufacture the tools but must take of the car is prima facie evidence that the car, at the
care to procure the tools from reputable manufacturers or material time, was being driven by master, owner or his
the market overt. servant.
- If the work involves special risk, the employer must
provide protective materials and take reasonable steps that OCCUPIER’S LIABILITY- NEGL. IN RELATION TO PREMISES
should be taken to see that they were used. •
Obligations of the occupier for damage which occur on his
iii. Safe System of work: omnibus term to describe how the work premises depend on the character of the entrant.
should be carried out. Included the different parts to be played
Lawful Visitors
by various employees, the time for work and the organisation
of the work i. Persons entering as of right: e.g. policemen, meter readers,
- Long established practice in trade is regarded as strong but factory inspectors.
inconclusive evidence of a reasonable conduct. ii. Contractual Visitors: persons who enter the premises in
• Factories Offices & Shops Act, 1970 (Act 328) as amended. pursuance of a contract.
• the nature and extent of the occupier’s obligations in
VICARIOUS LIABILITY- EMPLOYER’S DUTY TO 3RD PARTIES relation to the safety of the premises will be a matter of
construction from the contract.
• An employer is liable for the acts or torts of servants - There will be an implied term into the contract if the
committed in the course of his employment. contract is silent on the point.
- 2 classes if persons i.e. Servants or independent contractor - What the term is will be determined from the contract
• Based on the principle “respondeat superior” generally.
• Who is an employee? • Occupier generally warrants that his premises are as safe
i. Integration or Organization Test [Stevenson v for the purposes of the contract as reasonable care and
Macdonald]: crucial to the test is the distinction between a skill on the part of anyone can make them.
contract of service or contract for services. - Where the occupier could not have discovered the defect,
- A contract of service exists where: even by the exercise of reasonable care and skill there is
▪ The master has power to select his servant no liability.
▪ Wages or remuneration is paid - Duty is generally only owed to interior of premises.
▪ The master has the right to control the method of - If the premises are used for sports or to watch
doing his work entertainment, the warranties are that the premises are fit
▪ The master has a right to dismiss or suspend the for that purpose having regard to that activity.
person.

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• It is no defence that the defect was an open danger which ii. Product: any item capable of causing damage. Involves things
was obvious to all. taken internally or externally or merely for other use e.g. cars.
Frances v Cockrell: D engaged services of independent contractors to iii. Sale: whether supplied though gift of samples or sale.
construct stands for persons to watch a steeplechase race. P who paid for iv. Ultimate Consumer: covers any user, whether known or
admission was injured when the stand which had been negligently unknown to the manufacturer. i.e. anyone foreseeably harmed
constructed collapsed. D did not know that the stand had been negligently by the defective product.
constructed. v. Intermediate Inspection:
iii. Invitees: a person who enters the premises for purposes which - The consumer must use the product exactly as it left the
the occupier has business or material interest. manufacturer and how it was intended to be used.
• An occupier must take reasonable care to prevent injury to ▪ If the consumer misuses the product in an
the invitee from unusual danger of which he knows or unfashionable way, the M will not be liable.
ought to know. - Mere opportunity for inspection after it had left the
- Unusual danger: if it is not customary to have that danger manufacturer will not be enough.
in the place where it is found. ▪ Consumer who uses the product even after detecting
- The occupier ought to know those dangers which are the defect might be guilt of contributory negligence.
discoverable by the exercise of reasonable care and skill. - A warning or instructions relating to the use of the product
• The occupier must warn the invitees through notice, by M, may be sufficient discharge of the liability.
lightning or guarding etc. to prevent injury to them. - Defect refers to the “Thing in the product which caused
• If the invitee exceeds the limit of his invitation, he may P’s injury.
become a trespasser ad out of the law’s protection. vi. Burden of proof for want of reasonable care lies on the P.
- Invitation may be limited to place and time. - Res ipsa applies in GH to create a presumption of
- Situation may be different if it is a child. negligence in some circumstances.
Aboagye v Kumasi Brewery: rotten palm-nut in beer bottle
Indemaur v Davies: P, a gas-fitter, fell in a hole accidentally while he caused P to suffer from food poisoning.
went to D’s premises to examine and test gas burners. D was guilty for vii. Liability is based on control of the production process by M
leaving the hole unfenced.
i.e. covers acts as occur in the actual manufacture of the
iv. Licensees: entrants with permission to enter for their own products.
purposes of which the occupier has no material or business viii. Injury must be to consumer’s life or property or economic loss.
interest.
• A licensee takes premises which he is merely permitted to
enter as he finds them. LIABILITY FOR MISSTATEMENTS
• Occupier is under a duty to warn the licensee of concealed 1. DECEIT
dangers actually known to him and not known or obvious • Addresses the intention to deceive.
to the licensee.
- Obvious danger: one that a reasonable man using • To succeed P must be able to establish fraud on the part of D.
- A careless statement which is not dishonest will not found
reasonable care would have seen it. an action
- Once permission has been given to use the premises, the
occupier has to warn them of new dangers created by him. • Fraudulent misrepresentation: “a statement which is made
- There is no duty on the occupier if the danger is not known either knowing it to be false, without belief in its truth, or
by him. recklessly, careless as to whether it be true or false.” [Lord
Herschell; Derry v Peek]
Unlawful Visitor (Trespasser): a person who enters the land and • Once fraud is proved, the defendant’s motive is irrelevant
has neither the right nor the permission to be there. His presence • Generally, silence gives no cause of action.
is unknown and rejected by the occupier. - Where a person is under a legal obligation to speak and he
• Addie’s Case: Generally, a trespasser enters premises at his deliberately refuses, he is guilty of fraud
own risk except that deliberate harm should not be caused to Derry v Peek: D in a company prospectus stated the Co. had the right
him. to use steam powered trams as opposed to horse powered trams in the
- “No occupier is under any duty to potential trespassers, whether firm belief that they would get approval to run steam powered trams.
adults or children, to do anything to protect them from danger The approval application was later refused. The claimant purchased
on his land, however likely it may be that they will come and run shares in the company in reliance of the statement made and brought
into danger and however lethal the danger may be.” a claim based on the alleged fraudulent representation of the
• Duty of Common Humanity: [Herrington v British defendant. Held: The statement was not fraudulent but made in the
Railway Board] honest belief that approval was forthcoming.
- Duty of an occupier is what a conscientious humane man • Elements [Kusi v. Kusi]
with his knowledge, skill and resources could reasonably i. D must make a fraudulent misrepresentation
have been expected to have done or refrain from doing to - D must either know that it is false or make it recklessly
mitigate the risk of injury which the particular danger not caring whether it is true.
exposes the trespasser. - Actionable statements-
- The duty only arises where the occupier becomes aware ▪ Statement of opinion if that opinion is not held.
of the presence or the real likelihood of the presence of ▪ Statement of future if at the time of making it he did
the trespasser i.e. strictly presence-related. not have that intention.
▪ Test is substantial probability of the T’s presence. ▪ Half-truths, ambiguities and actions to conceal the
- The level of precautions expected of the occupier is truth.
subjective taking into account the knowledge, ability and ▪ Fraudulent representation made through innocent
resources of the occupier. agent
▪ O is expected to do more if T is likely to be a child - P is liable if he is aware that events subsequent to the
Herrington v British Railway Board: The P, a child had gone through making of a statement make it no longer true and fails to
a fence onto the railway line, and been badly injured. The Board knew of correct it.
the broken fence, but argued that they owed no duty to a trespasser. - Where a servant commits deceit in the course of his
employment, his master is vicariously liable.
West London Commercial Bank V Kitson: Ds accepted a bill of
NEGLIGENCE IN RELATION TO CHATTELS exchange representing falsely that they had authority to do so. The Ps
MANUFACTURER’S LIABILITY acted on it and suffered loss. Held: that the misrepresentation was on
“A manufacturer of products, which he sells in such a form as to fact and not law and so they were liable
show that he intends them to reach the ultimate consumer in the ii. Defendant must intend that the plaintiff act or fail to act
form which they left him with no reasonable possibility of because of the representation
intermediate examination and with the knowledge that the absence - The representation need not be made to the P but there
of reasonable care in the preparation or putting up of the products must be an intention that the plaintiff should rely on it.
will result in an injury to the consumer’s life or property , owes a - Where representation is made to a limited class then there
duty to the consumer to take that reasonable care”. [Lord Atkin; is no liability to those outside the class.
Donoghue v Stevenson]. iii. The plaintiff must have actually acted in reliance on the
misstatements
i. Manufacturer: includes producers, repairers, masons and - It must be proved that the representation was at least one
suppliers of articles who have done some work on the article. of the reasons for the plaintiff acting as he did.

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Smith v. Chadwick: The plaintiff bought shares in a company on the defendant read the letter to himself and then, by leave of the chairman,
faith of a prospectus which contained the untrue statement that a certain read it to the members present. Held: It was a publication of the libel.
person was a director of the company. The plaintiff had never heard of
this person and could therefore not convince the court that he relied on Osborn v Thomas Boulter: P wrote to the defendants, his brewers
the statement in the prospectus. And so, his action failed. complaining of the quality of the beer. After sending an employee to
investigate and report, the defendant dictated a letter to his typist in which
iv. The Plaintiff must suffer damage as a result of his he alleged that the plaintiff had been adding water to the beer.
reliance on the representation. Held: the act may only amount to slander. Action failed as the
Kusi v Kusi: D offered several farms and an uncompleted building as communication and the occasion was in the ordinary course of business
security for a loan he took from P. The D’s family sued P when he of the defendant.
exercised a right of lien on the property saying that it was family Medlum v. Australian Broadcasting Corporation: Refused to follow
property. P sued D for deceit saying that though D knew of the family Forrester v Tyrrel. Held: reading aloud a script only amounted to slander
character of the properties, he fraudulently offered them as his own to
secure a loan. • Libel is written, permanent and visible to the eye.
• Remedy for Deceit: The remedy is damages. [Doyle v. - also includes films, radio, television and public performances
Olby (Ironmongers) Ltd] of plays
- Normally a claim in deceit is for pecuniary or economic Monsoon v Tussauds: P was acquitted of murder. Defendant later put an
loss, but personal injury and property damage are effigy of him during their exhibitions of wax figures, in the "chamber of
recoverable too. horrors" which contained models of many murderers.
Held: that the defamatory matter may be conveyed in some other
2. NEGLIGENT MISSTATEMENTS permanent form of statue, a caricature, an effigy, chalk marks on a wall,
signs or pictures. It constituted a libel
• Misstatement, may be
- of law; opinion; fact or intention.
- By voluntary undertaking; in the course of business; a • Constitutional Provisions Against Defamation
person under duty to speak. - Article 12: The fundamental Human Rights and freedoms
• A duty of care in making non-negligent statements would be enshrined in chapter 5 shall be respected and upheld. It is
imposed whenever a special relationship exists between the however subject to respect for the rights and freedoms of
parties and responsibility is not disclaimed others and for the public interest.
Hedley Byrne V Heller & Partner: The plaintiff wanted to check the
- Article 21: Guarantees freedom of speech and expression,
creditworthiness of a customer and so asked their bank to check it from freedom of the press and other media; freedom of thought,
the bank of the customer. The bank sent a report stating that they were conscience and belief (including academic freedom),
creditworthy but would not take responsibility for the report. The freedom of religion and of assembly
plaintiff acted on it to his detriment as it was found out that the customer - Article 162: Guarantees freedom and independence of the
Easipower was not credit worthy. media.
Held: Irrespective of any contract, if someone who is possessed of a ▪ Any medium which publishes a statement about or
special skill undertakes to apply that skill for the assistance of another against any person shall be obliged to publish a
person, who relies upon such skill, then a duty of care will arise. In rejoinder, if any, from that person.
certain circumstances a professional adviser might be liable even in the - Article 164: The provisions above are subject to laws that
absence of a contractual or fiduciary relationship between himself and
the person who had suffered some economic loss. are reasonably required in the interest of national security,
(defendants would have been liable but for the disclaimer) public order, public morality and for the purpose of
• Liability will not be imposed merely because it is foreseeable protecting the reputations, rights and freedoms of
that P would rely on the P. other persons.
- There must be a close proximity between the maker and
the recipient of the advice. ELEMENTS OF DEFAMATION
- It must be fair, just and reasonable to impose the duty. i. The P must prove that the communication is capable of a
• Condition for Proximity: defamatory meaning.
- The advice was required for a purpose made known to the • The test is whether the words tends to lower the plaintiff in
defendant the estimation of right-thinking members of the society
- The D knew that the advice would be communicated to generally.
the plaintiff for the purpose made known to the D in order Sim v. Stretch [Lord Atkin]: D sent a telegram to the P asking him, to
that P may use same for his purposes. send the possessions of a maid as well as money borrowed from her. P
alleged that it meant he was in pecuniary difficulties and had to borrow
- The D knew that P would act on the advice without from a maid. Held: The words were not capable of a defamatory meaning.
independent inquiry
- The advice is acted upon to the detriment of the plaintiff • Mere abusive personal attacks spoken in the heat of an
McNaughton V Hicks: P was negotiating with a 3rd party about a argument are not defamatory
takeover bid. The 3rd party instructed the D, their accountants, to prepare Bonsu v Forson: The parties were very good friends. In an argument it
accounts as quickly as possible. The plaintiff relied on the accounts which was alleged that the D said “…you are a thief…you are a hopeless lawyer
were carelessly drawn up to make a bid and subsequently made a loss. and if it wasn’t for Owusu Afriyie you would have had no clients…you
Held: The Court of Appeal found that the defendant did not owe a duty are a hopeless MP”. Held: Since the words were spoken in the heat of a
of care to the plaintiff. There was insufficient proximity for a special quarrel, they were not actionable
relationship as the defendant did not know the accounts would be sent to
the bidder for the particular transaction. Account given by the defendants ii. The words must actually be defamatory.
was in general terms and accordingly it was not fair, just and reasonable • The words must be interpreted in their fair and natural
to impose on the defendants a duty of care to the plaintiffs meaning as ordinary people would understand it except where
• Knowledge may be actual or inferred from conduct. innuendo is pleaded
• The duty would arise if adviser gains financially from the Cassidy V Daily Mirror Newspapers: D published in a newspaper a
reliance by the advisee on the advice. photograph of one Mr C and a Miss X together with the words "Mr M.C,
the race-horse owner, whose engagement has been announced." The
P was and was known among her acquaintances as the lawful wife
3. DEFAMATION of MC. But the D did not know this. She brought an action for libel
Governed by customary law and common law principles. pleading innuendo.
Held: The publication could be defamatory. The caption conveyed to
A. UNDER COMMON LAW: reasonably-minded people an aspersion on the plaintiff’s moral character,
she was entitled to succeed.
At common law slander is distinguished from libel as this is
essential in proving damage.
- Libel is actionable per se unlike Slander • Innuendo [Grubb v Bristol United Press]
- Slander is only a tort while libel can be a tort and a crime - A defamatory imputation whereby extrinsic facts known to
- Slander is oral, impermanent and transient. the third party gives the words used a secondary meaning in
• Where a document containing defamatory matter is published addition to or alteration of their ordinary meaning
by reading out loud to a third person or dictated to a clerk to - True/ Legal Innuendo: is not defamatory on its face. A legal
whom it was it is slander not libel. innuendo statement can be defamatory when combined with
Forrester v Tyrell: defendant received an anonymous letter while at a certain extrinsic or outside circumstances.
meeting of a lodge of which both he and the plaintiff were members. The - False Innuendo: It is a defamatory statement made that has
an implied meaning, so only individuals who have the

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necessary contextual knowledge can appreciate and

understand that the comment is defamatory. DEFENCES FOR DEFAMATION
iii. The words must make reference to the plaintiff 1. Absolute privilege: statements made in some contexts, of a
Knupfer V London Express Newspaper: D published an article certain kind and by some people are absolutely privileged.
referring to an association of political refugees which, it was admitted, i. Executive matters: communications relating to state matters
could have been defamatory if it had been written about a named ii. Judicial proceedings: any statement made from the bar as
individual. The appellant was head of the U.K. branch of the association well as statements made before tribunals, committees and
which consisted of 24 members. Held: The words were written of a class commissions. [Art 114; 132 and 127)
and he had failed to show that they were pointed at him as an individual. - Extends to counsel, jurors, witnesses and parties.
• When the words are spoken or written about a group or class: iii. Legislative proceedings: [Art 96- 97; 115-116]
the size of the class, generality of the charge and extravagance iv. Solicitor-client communications
of the accusation are considered
2. Qualified privilege
iv. The words must be published i. Words relating to matters of common interest
• “There is a “publication” of a letter wherever the writer of the ii. Words protecting the interest of the publisher
letter shows it to any person other than the person to whom it iii. Words protecting the interest of another: There are two
is written. If some individual wishes not to publish a letter, conditions.
where the letter contains defamatory matter, he must either - The recipient must be interested in the communication
keep it to himself or send it himself straight to the person to - The maker must be under some obligation to
whom it is written.” [Pullman v Hill] communicate
iv. Public interest:
Pullman V Hill: A letter about the Plaintiffs, 2 of the members of a - Fair and accurate reports of parliamentary and judicial
partnership, was written on behalf of the Ds, and sent by post in an
envelope addressed to the firm. The letter was dictated by the MD of the proceedings.
Ds to a clerk who took down the words in shorthand then wrote them out - statements made to help in the apprehension of
in full using a typewriter. The letter so written was copied by an office criminals.
boy from whom it reached its destination. It was in the ordinary course of v. Misconduct of public official
business opened by a clerk of the firm and was read by two other clerks.
Held: The letter must be taken to have been published both to the • Qualified privilege is destroyed by:
plaintiff's clerks and the defendant's clerks and that neither occasion was - Malice
privileged.
- Excess of privilege: This is when material is circulated
• If a person becomes aware of the defamatory matter through beyond people who should legitimately receive it.
stealing or eavesdropping there is no publication
Huth V Huth: The defendant posted a statement to the plaintiffs, in a 3. Fair comment-comment on matters of public interest made
sealed envelope, which they alleged was defamatory. In breach of his duty honestly without malice
and out of curiosity, the statement was taken and read by a butler. The • conditions to establish fair comment [Boohene V Abeyie]
plaintiff claimed that this constituted a publication of the libel for which i. Comment must be on a matter of public interest
the defendant was responsible. Held: The statement was not published. ii. Comment must be based on fact
iii. Comment must be an opinion: “Fair comment is available
SLANDER to an honest man expressing an honest opinion whether
• There is a need to prove damage. exaggerated, wrong or prejudiced”. Slim v Daily
- The damage should have been caused by the defamatory Telegraph [Lord Denning]
matter and resulted in material loss to the plaintiff.
- The test for causation is reasonable foreseeability Boohene V Abeyie: plaintiff claimed damages for libel published in
- The loss must be capable of being quantified in money the pioneer newspaper owned by the second defendants who were
printers and publishers. The plaintiff alleged that the article was to the
• Situations Where Damage Need Not Be Proved effect that the plaintiff made certain dismissals for political reasons and
that the plaintiff though a graduate had no qualification in airway
- Imputation of crime technique.
- Imputation of a loathsome disease Held: There was no evidence of malice since the first defendant had
- Slander in respect of an office, profession, trade or business published what he honestly believed.
- Imputation of unchastity
4. Justification- Operates where the publication is true and all
B. UNDER CUSTOMARY LAW material elements are established as truth.
Wankyiwaa v Wereduwaa: In a quarrel, the defendant spoke and - Truth is an absolute defence under common law.
published that the plaintiff’s vagina stinks. [Wakley v Cooke]
Held: The fact that the words of abuse were spoken in the heat of a quarrel
does not itself negative liability. At customary law, abuse per se is a civil
wrong that can be redressed by a pecuniary award or damage. 5. Consent

• Customary law protects reputation and injured feelings Libel act 1843- this act allows the defendant to express remorse
• It does not draw a distinction between libel and slander – and offer amends. If plaintiff rejects it the defendant can refer to
[Anthony v UCC (Apaloo JA)] it in his pleading and the court would take it into account in fixing
- Slander at customary law is actionable per se provided it is damages.
false.
• Truth is not always a defence at customary law.
Atiase v Abbottey: The plaintiff a shopkeeper sued the defendant for
defaming her as a prostitute and saying that she used her store for DEATH IN RELATION TO TORTS
prostitution and not for selling goods. Held: Publication of defamatory • Civil Liability Act, 1963 (Act 176)
words under customary law are actionable if false and it does not matter - Death has the effect of either:
whether they may be rejected at common law as mere words or vulgar ▪ Creating liability (Section 16)
abuse uttered in the heat of a quarrel. ▪ Extinguishing liability (Section 24)
• Under customary law slander is the only action under
defamation and it is actionable per se • This action would not lie if:
Ampong v Aboraa: The plaintiff who was a candidate for the Akropong - There was a defence to the action had the deceased lived
Stool was called "slave and beast" by the defendant. The plaintiff sued - The deceased had agreed not to sue,
for damages for damages for slander under customary law. Held: The - The issue had been settled or was statute barred.
epithet "slave" by itself was actionable under customary law without
proof of special damage, although whether it still carried its former sting.
• This action is to protect purely pecuniary interest and not
mental suffering [Blake V Midland Railway Corporation]
Remedies under Customary Law - Section 18(5): Funeral expenses may be recovered
• Order for retraction and apology - The action is for the loss of breadwinner and so
• Award of damages measurement is based on pecuniary loss to the

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dependents and not limited by any contract between the • Damages for Shortened Life Expectancy
deceased and the defendant. - Damages can be recovered for shortened expectation of life
even though the person is dead or in a vegetative state.
Nunan V Southern Railway Co. : John Nunan was a passenger on a [Atsyor v Donkor (Coussey J)]
train, being carried under a contract which limited the liability of the - The assessment of damages is for the prospect of a
defendants to £[Link] arrival while crossing the railway lines in order predominantly happy life but not the prospect of the length of
to leave, owing to the negligence of the defendants' servants, they were days. [Ayimavor’s case (Apaloo JA) adopted from
run into by another train and killed. Benham V Gambling]
Held: The most important thing is whether he could have sued them had
he lived. If he could have then, although by the contract his claim would
have been limited to £100, this will not affect his dependents’ action. • Medical and funeral expenses as well as administrative
expenses incurred to bring the action are recoverable

• Section 15: Definition of Dependents and Family • Section 20: The court must not take into account these in
"Dependant" here includes any member of the family of the assessing damages
deceased, and any other person he duly adopted or - Sum payable on the death of the deceased under any
otherwise obliged to maintain and who suffers loss or contract of insurance
mental distress as a result of the death; [Yeboah V - Pension, gratuity in consequence of the death
Mckenzie]
- "Member of the Family" of • Section 21: Contributory negligence: If the death was
• A citizen of Ghana: Anyone of those persons caused partly by the fault of the defendant and partly by the
mentioned in the First Schedule according as the contributory negligence of the deceased, the damages
family is based on the paternal or maternal system; recoverable in the action may be reduced
• A non-citizen of Ghana: the wife, husband,
father, mother, grandfather, grandmother, • Section 24 – Non-Applicable Actions
stepfather, stepmother, son, daughter, grandson, The following causes of action die with the deceased
grand-daughter, stepson, step-daughter, brother,
sister, half-brother or half-sister. • Cause of action for breach of promise to marry
• Seduction
• Section 16: Where Death Is Caused By Wrongful Act. • Inducing one’s spouse to leave or remain apart from the
Where a person causes the death of another, if the deceased other
could have maintained an action and recover damages if he • Adultery
had survived, the defendant shall be liable to an action for • Claim for compensation under the workmen's compensation
damages for the benefit of the dependents of the deceased. Ordinance
- The action shall be commenced within three years after
the death.

• Section 18(1): Damages.: The damages under section 16 of

this Act shall be—
(a) Amounts (if any) the court considers proportionate to the
loss resulting from the death to each of the dependents,
(b) Subject to subsection (2), the total amounts (if any) the
court shall consider reasonable compensation for mental
distress resulting from the death of such dependents.
Subsection (2) limits the amount to £1000
• Prospective loss can be recovered provided that the plaintiff
had reasonable expectation of pecuniary benefit from the
continuance of life
- it must be shown that there was a reasonable probability of
pecuniary advantage and not a mere speculative possibility
of pecuniary benefit.
Taff Vale Railway Corporation V. Jenkin: Couple’s daughter, 16, was
killed in a railway accident for which appellants were responsible. At the
time of her death, the respondent's daughter was an apprentice dressmaker
with two more months to complete her apprenticeship. She was an
exceptionally clever girl and there was a good chance of her making
substantial earnings on the completion of her apprenticeship. The father
was a fireman, who suffered from varicose veins and was not in robust
health. The wife kept a small green grocer's shop.
Held: The deceased who lived with her parents was nearing the
completion of her apprenticeship as a dressmaker and was likely in the
near future to earn remuneration which might quickly have become
substantial.

• Assessment of Pecuniary Loss

Damages are assessed by dependency in a lump sum and
apportion it to the dependents.]
- This was approved by Ghanaian Courts in [Baaye v
Prempeh|| Amakom Sawmill v Mensah]

• Method of Assessing Quantum Damages:

LUMP SUM = (a - b) x c
where
• a = Wages
• b = Personal and living expenses
• c = Number of active years to be purchased
• a - b=basic figure (Datum)
Payments based on generosities are not taken into account as
wages.

P. Vitoh & Uncle Rollo: Torts Summary