KEITH BUSINGYE LAW GUIDE ;Law of Torts, Guiding Questions And Answers.

QUESTIONS and ANSWERS.

1. What is meant by trespass to land?

It is an unjustifiable interference with the possession of land.

2. What must a person claiming trespass to land prove?

Or what are the essentials of trespass to land?

Unlawful Entry

Possession

3. Who can sue for trespass to land?

A person who is in actual possession of the land at the time the wrong was committed has an exclusive right to sue for trespass to land

4. In trespass to land, what does continuing trespass mean?

 Continuing trespass is when a trespasser remains on land or allows things he unlawfully placed on another’s land to remain there.

5. A police officer had an arrest warrant for Kajubi Robert and went to his home where he arrested Robert but after the arrest, he went ahead and searched the entire premises of kajubi claiming that he was searching for more incriminating evidence without a search warrant. Under what principle would the police officer be liable?

Trespass ab initio

6. When does one become liable for trespass on high way?

   One becomes liable for trespass on high way when such person uses the high way in unjustifiable and unreasonable way.

7. Define the term licence as regards trespass on land

Licence means the authority or permission given to a person to enter land by the person in possession of that land, usually to do something or for a specified period of time.

8. Explain the principle of trespass to air space.

The owner of land owner has a right to fill the air space above his land, within the limits of the ordinary user and may sue for trespass if this right infringed upon. Thus the principle of trespass to air space is where a person encroaches on the space above some one’s land

9. Which defenses are available to a person sued for trespass on land?

·           Co-ownership

·           Defect on fence

·           Exercise of legal right

·           Licence / permission to enter land

·           Prescription

·           Mistake

·           Claim of right

·           Re-entry on land

·           Authority of law

10. What are the possible remedies to a person in action of trespass to land?

·           Injunction

·           Recovery of land

·           Re-entry

·           Mense profits

·           Damages

·           Removal or eviction

·           Expulsion/ self- help

11. Briefly explain what you understand by conversion of goods.

Conversion refers to unauthorized exercise of rights of ownership of goods belonging to another person; or it is an intentional interference with the person’s use of property or ownership or possession of property.

12. What are the available remedies to a person in a cause of action for trespass to goods?

·           Damages

·           Recovery of goods or their value

·           Specific restitution of goods

Seek order to pay market value of goods

13. In a cause of action for trespass to goods, which term is used where a party claims the specific recovery of goods and services?

A writ of detinue

14. What are the most important ingredients of the tort of negligence?

·           Duty of care

·           Breach of duty of care

·           Damage

15. In your own words, explain the neighbour principle in Donogue v Stevenson.

The neighbour principle is to the effect that one must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure their neighbour.

16. Name the factors that help in determining duty of care in negligence.

·           Reasonable foreseeability

·           Proximity

·           Notions of Fair, Just and Reasonable

17. Once it is published that a duty of care was owed in the circumstances, it remains to be examined to what extent must the tortfeasor, go out of his way to ensure the safety of those affected by his acts.

(a) Which test is used to meet this?

The test of a reasonable man

(b) Briefly explain the test.

In determining or deciding whether the defendant was negligent or not, the court asks itself whether a reasonable person placed in the circumstances would have behaved the way the defendant did.

18. What are the factors considered in determining whether a defendant was negligent?

·           Magnitude of risk

·           Cost of averting injury

·           Importance of the subject matter

19. Distinguish between causation and remoteness of damages

Causation is concerned with establishing a causal link between the defendant’s negligence and the claimant’s damage while remoteness of damage is used to set the limits of legal responsibility (whether the defendant is liable for all the consequences of his negligence.)

20. When determining causation of damage, which test is used?

The “but for test”

(b) Explain the test.

This test is to the effect that harm to the claimant would not have occurred, but for the defendant’s negligence, then that negligence is the cause of harm.

21. Explain the directness test and the foreseeability test of remoteness of damage.

The directness test is to the effect that a tortfeasor is liable for all the damages that are a direct consequence of his conduct.

Foreseeability test is to the effect that one is only liable for those consequences of his negligent act which a reasonable man would have foreseen.

22. What do you understand by product liability?

It is the liability of a manufacturer of goods or commodity that causes injury to the actual user of such commodity.

23. Explain the duty of care of a manufacturer of a commodity.

A manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with knowledge that the absence of reasonable care in the production of the product will result to an injury to the consumer’s life, owes a duty to the consumer to take reasonable care.

24. In an action of negligence resulting to injury as a result of consuming a commodity or product, which parties can be held liable and why?

The manufacturer of a product as he has a duty of inspecting or testing a product if its sound for consumption and failure of this, he is in breach of his duty to care thus liable.

A distributor of a product may be liable as he is also under a duty to inspect the product before distribution.

Suppliers are also liable if they carelessly represent the product to be harmless without making adequate tests. This only arises when they are expected to carry out an examination.

Agents may also be liable as they directly represent the manufacturers.

25. What does negligence mean?

Negligence means breach of a legal duty to care which results in damage to the claimant.

26.  What is the distinction between assault and battery?

 An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person. A battery is the actual infliction of unlawful force on another person.

27.  What is meant by force under common law?

This is the infliction of light, heat, electricity, gas, odour applied in such a degree as to cause injury or personal discomfort.

28.  What must a plaintiff show to prove assault?

That there was an apprehension of infliction of immediate and unlawful force on his person

29.  What must a plaintiff who has been battered prove in court in order to succeed in that cause of action?

 One must prove that there was touching another’s person in violent, angry, rude or insolent manner against his will however slight.

30.  State the legal reason for the need for consent from a patient for treatment whether he or she is a child or an adult.

 It is to provide those concerned in the treatment with a defense to a criminal charge of assault and battery or civil claim for damages for trespass to the person.

31.  John was locked up in his room by Peter for 5 hours to prevent him from attending his friend’s party. What is John’s cause of action against peter?

His cause of action is unlawful or false imprisonment.

32.  In the tort of false imprisonment, who bares the burden of proof?

The burden of proof is on the defendant to justify the arrest and imprisonment.

33.  Distinguish between malicious prosecution and false imprisonment.

False imprisonment is wrongfully restraining the personal liberty of the plaintiff whereas malicious prosecution is wrongful setting of the criminal law in motion against a person.

34.  Mention the major ingredients of malicious prosecution

·           Absence of reasonable and probable cause

·           Malice

·           That the prosecution was instituted

·           That the prosecution terminated in the plaintiff’s favor

35.  Define the reasonable and probable cause.

An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of the state of circumstances, which assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser to be the conclusion that the prosecution charged was probably guilty of the crime imputed.

36.  In trespass to person, there exists infliction of mental suffering which results to nervous shock. Define nervous shock in the law of tort.

 This is a reaction to an immediate and horrifying impact resulting in some recognizable psychiatric illness.

37.  Mention any defense one accused of unlawful imprisonment would have available in tort law.

Reasonable condition. Where a man is prevented from leaving your premises because of failure to fulfill a reasonable condition subject to which he entered them.

38.  Which defense is available to one who led to the arrest and prosecution of another that results into malicious prosecution?

The defense of reasonable and honest belief

39.  During a shooting party, Jose fired a pheasant and one of the bullets from his gun glanced off the bough of an oak tree and accidentally wounded Simon. What defense can Jose raise?

Inevitable accident

40.  Mark led to the imprisonment of John in Mukono prisons in 1987 and John instituted proceedings against Mark for false imprisonment in the High Court of Kampala in 2009. What defense can Mark raise in the preliminary stage?

Mark can raise the defense of time bared or limitation

41.  What is the justification for the defense of necessity in trespass to the person?

This may happen where the defendant acts for the purpose of protecting the plaintiff’s own health or safety when treating him.

42.  Define the tort of Defamation.

This is the publication of a defamatory statement concerning a person without lawful justification.

43.  Of what use is defamation as a cause of action in the law of tort?

Defamation seeks to protect a person’s reputation however in so doing the law seeks to strike a delicate balance between protection of the reputation and freedom of speech.

44.  What must a plaintiff who alleges defamation prove in order to hold the defendant liable?

·           That the statement was defamatory

·           The words must refer to the plaintiff

·           The words where published

·           That the words were made by the defendant

45.  Explain innuendo according to common law.

This is a statement made with hidden meaning.

46.  Diana is accused for talking to her lawyer about Peter’s habits and conduct, Peter says this is defamatory. What would be Diana’s possible or available defense for her?

 She would have the defense of qualified privilege.

47.  What amounts to publication in the tort of defamation and give an example.

This is when a statement is communicated to a third party other than the plaintiff. Example is where a statement is printed, allowing another to read or reading it out to him.

48.  It is an available defense for one to allege justification/truth in a defamation matter. Where does the burden of proof lie for the defense to suffice and why?

The burden of proof is on the defendant to prove that the alleged defamatory statement is true. This is because the law presumes that the statement is false and so the claimant does not have to prove falsity.

49.  What would amount to a fair comment as a defense in defamation?

The statement must be of opinion as opposed to a statement of fact and the facts must be correctly stated.

50.  Give any two circumstances where a statement is not actionable however defamatory or malicious it may be.

·           Any statement made in the course and with reference to judicial proceedings by any judge, assessor, party, witness or advocate.

·           Any statement made in the parliament by a member during debates or proceedings of parliament or before a committee of parliament.

51.What are rescue situations?

This is a situation where a person takes it upon himself to rescue another or property form danger

52. ‘’Under rescue situations, the negligent defendant is liable for the injury of the rescuer as well as that of the victim. The rights of the rescuer are therefore independent of that of the victim’ what does this phrase mean and the reason to support your answer.

It means that the success of the rescuer’s claim does not depend on the success of the victim’s claim. This is because his claim is based on a duty of care owed directly to him by the tortfeasor and not upon one derived from that owed to the person imperilled.

53. What are negligent words?

These are innocent but negligent statements made by one party and relied on by another to his or her detriment.

54. Who can successfully bring an action for negligent word or misstatements?

For one to bring an action for negligent words there had to be a contractual or fiduciary relationship between the parties. For example doctor –patient, lawyer-client, and trustee-beneficiary.

55. Under what circumstances can a person recover for pure economic loss and which ground are considered by court to deny those damages?

Compensation for economic lose can be given if such loss arises directly out of a proximate result of physical loss. The courts would deny those damages on grounds such as no duty of care being owed in the particular circumstances and the remoteness of damages.

56. What is injury without impact?  Which test has been followed by court in case of a cause of action?

Injury without impact refers to a situation where the plaintiff suffers injury due to the act of the defendant without any physical or actual bodily contact. For example nervous shock and mental distress. The test was whether the defendant could reasonably have foreseen that his conduct would expose the plaintiff to the risk of personal injury.

57. Who can bring a cause of action under injury without impact?

It can either be primary or secondary victim. With primary evidence one suffers as a result of directly being involved in an accident and is either he physically injured or put in fear of injury. As for secondary victim, one must have suffered as consequence of witnessing or being informed about an accident .however with secondary victim the class of potential plaintiffs is largely limited to those who are close relatives.

58.In cases of injury without impact how has the burden of proof?

The burden of proof is on the plaintiff to show that the indirect injury he suffered was a result of the defendant’s negligent acts

59.It is a general rule that there is no duty on a person to take action in order to prevent harm befalling others. However just like ever y general rule there are exceptions to it. What are they?

·      Where there is an under taking by the defendant

·      Where there is a special relationship between the defendant and the claimant

·      Where a defendant has control over a third party who causes damage to the claimant

·      Where the defendant has control over land and something likely to be dangerous if interfered with.

60.The duty of a advocate as regards professionalism has been held to be five, what are these duties that he has to fulfill?

·      A duty to his litigant client.

·      A duty to his opponent.

·      A duty to court.

·      A duty to himself

·      A duty to the state

61.It is a famous s position of law that “he who alleges must prove” as for liability of an advocate, in negligence what must one establish?

In establishing that the profession al has been negligent you must be able to establish that

·      The advocate owed a duty of care to the client.

·      That the advocate was in breach of a duty

·      The client suffered damage as a result

62.What is the general rule for the award of damages?

The general rule is that the damages to which the claimant is entitled from the defendant in respect of a wrongful act must be recovered once and for all.

63.Mention any four types of damages that may be awarded by court

·      Exemplary damages

·      Contemptuous damages

·      Norminal damages

·      Special damages

64.What are special damages?

These are damages that are particularly requested for and must be proved

65.What is meant by the term remoteness of damages?

It means that an injured party or one who has suffered loss should only recover for the exact consequence that resulted from the defendant’s breach.

66.What is the difference between damage and damages?

Damage means the actual injury or loss caused by someone as a result of either his act or omissions while damages are the pecuniary compensation one is entitled to as a result of the injury or loss caused to them by the act or omission of another party.

67. What is meant by the term restituo integrum as a major principle that court follows while awarding damages?

It means putting back the party who has been injured in the same position as he would have been if he had not sustained the wrong for which he is now claiming compensation.

68.In awarding damages, court may look at the issue of mitigation of damages .what is meant by mitigation of damages?

Mitigation of damages means reducing on the amount of damages in form money that the defendant should pay, this is by giving reasons like contributory negligence.

69.Mention one example where court may refuse to grant damages to an injured party who has proved injury.

Where an injunction is granted, damages shall not be awarded.

70.Sometimes parties may stipulate in their agreement the amount of damages to be paid in case of breach; what are those damages called?

They are liquidated damages however the amount agreed by the parties has to be a genuine pre-estimate of the probable loss that could occur.

71.Under what circumstances will the defence of contributory negligence succeed?

This defence will succeed if court finds out

·      That there was fault or negligence on the part of the plaintiff

·      That the injury of which the plaintiff complains resulted from the particular risk to which his own negligence exposed him.

72.What must be proved for a child to be held liable for contributory negligence?

To find that the child is guilty of contributory negligence it must be proved that the child has failed to show the amount of care reasonably expected from a child of that age.

73.What must be put across for one to succeed with the defence of voluntary assumption of risk?

The defendant must show;

·      That the plaintiff freely and voluntarily consented to the risk

·      The consent was based on full knowledge of the nature and extent of the risk

74.What is meant by inevitable accident?

Inevitable accident is that accident which the party charged could not possibly prevent by the exercise of ordinary care, caution and skill.

75.Under which law may a person bring death as a cause of action?

Under section 5 of the Law Reform (Miscellaneous provisions) Act

76.While shopping in the Danger way supermarket late in the afternoon, Claude Musa slipped on grapes on the floor in the produce department. He broke his leg and hit his head heavily on a metal rail. On that day the store was short of staff and a produce attendant was assigned to help with that area. Other customers are willing to testify that the floor in the produce area was increasingly messy throughout the day. On what principle would the manager be liable for the produce attendants acts?

Under the principle of vicarious liability

77.What is the justification for vicarious liability?

a)  The rationale for the employer assuming liability is based on the assumption that he who chooses his servants and profits from their services and he appropriates the surplus value thus the employee should be indemnified in the event of incurring liability in the course of employment. The master has the means to pay as the master is normally not an individual but a substantial enterprise.

b)  The master must have been negligent in employing a negligent servant or failing adequately to control him and as such the master has set the whole thing in motion

78.Can an employer be liable for the acts of an independent contractor and give reasons for your answer?

No an independent contractor is one working for his own benefit therefore an employer cannot be liable for independent contractor’s acts for he is deemed to be acting on his own.

b) When can an employer be said to be liable for the acts above.

i) Torts authorized or ratified by him e.g. where the contractors employed to do an illegal act both parties will be held liable as joint tortfeasors e.g. dumping waste on one’s land with authorization by the employer and done by independent contractors.

ii) Delegation of non delegation duty owed to the plaintiff by the employer but breached by an independent contractor e.g. an employer delegating his duty to fence dangerous machinery for the workers safety and the independent contractor fails to do so leading to the worker’s injury.

79.  What is the meaning of vicarious liability?

It simply means that he who acts through another is deemed to act in person.                                       It is not a tort but a legal mechanism of apportioning liability it ensures that workers aren’t exploited by bearing burdens of their employers

80.  Briefly discuss the elements constituting vicarious liability.

                a) Existence of a master/servant relationship. There must be proof of a relationship of master/servant, evidence of such a relationship is a contract of service.

b) In the course of employment; the rule is that a master is vicariously liable for torts of his servant only if it can be established that the servant in committing the tortuous act did so in the course of employment as servant of the master, he is responsible for not only what he does but the way he does it.

c)     Common interest.’ Should be done in common interest of the employee and the employer.

d)Benefit of the employer ; The employer will only be liable where what the employee does is              sufficiently connected with his employer’s business and is not too gross a departure form the kind of the thing he  is employed to do

e) Determination of duties; whether the act was done within the duties defined or determined by the master and how they are discharged.

81.  How can one prove a master/servant relationship rendering the employer liable under vicarious liability?

a)control test; this includes the power of deciding the thing to be done, means in doing it, way it shall be done, time when where it shall be done.

B) Integration test; is one employed as part of the business and is his work done as an integral part of the business

c) Parties own classification; how the parties have chosen to characterize their relationship either a contract of service or for services.

d) Entrepreneur test;  is the person performing for his own benefit in business of his own.

e) Multiple test. Look at all the surround ding features

82.  Briefly discuss the rule in Ryland’s v Fletcher.

The rule is to the effect that a person who for his own purposes brings on his lands and collects and keeps there anything likely to do damage if it escape t his peril and if he must keep it at his peril and if he doesn’t do so is prima facie answerable for all the damage which is the natural consequence of it’s escape.

The case established the principle of strict liability for loss arising out of escape.

83.  What should be established for a case to fall under Ryland’s v Fletcher?

a)     Bringing on the land; the defendant must have brought on the land for his own purpose something which he has accumulated there.

b)    Non natural user; it must be some special use bringing with it increased danger to others and must not merely be an ordinary use of the land or such a use as is proper for the general benefit of the community.

c)     Thing likely to do mischief; the thing must be potentially or actually dangerous and capable of entering into the neighboring land.

d)    Escape; there must be escape from a place where the defendant has occupation or control over the land to a place which is outside his occupation or control.

84.  What are the defences against the rule in Ryland’s v Fletcher.

a)     Statutory authority; normally public bodies are exempted from liability unless it is shown that they acted negligently.

b)    Act of a stranger or third party which could be reasonably anticipated.

c)     Volenti non fit injuria; the plaintiff has knowingly and voluntarily consented to the bringing of the thing on the defendants land.

d)    Contributory negligence; the plaintiff saw the danger and may be said to have courted it.

e)     Act of God; these are operations of natural force, free from human intervention rather than phenomena. If escape arises out of natural causes which no human foresight could have provide for that it is said to be an act of God.

85.  What are the ingredients for cattle trespass?

a)     There must be cattle

b)    The defendant need not have intended trespass and need not have acted negligently

c)     There need not be damage suffered.

86.  What is the general rule for liability for straying animals?

A general proposition is that the owner of animals is under no liability to prevent the animals from straying even though the straying may take the form of leaping over and through hedges.

87.  What are the exceptions of the above rule?

i)  It doesn’t apply to wild animals or to domestic animals which show peculiar characteristics.

ii) Doesn’t apply if animals were brought onto the high way

iii) Common law which relieves occupiers of land adjourning the high way from fencing doesn’t apply to cities, city dwellers should be obliged to fence.

iv) Whether there are special circumstances such as peculiar topography

v) Where the animal was engaged in an activity which could only be caused under a high degree of human control.

88.  What is liability under the scienter rule.

When an animal of harmless species betrays its own kind by perpetrating damage, its keeper will not be held strictly liable unless actually aware of its dangerous disposition. A person who keeps an animal with knowledge of its tendency to do harm is strictly liable for damage if it escapes he is under a duty to confine or control it so that it doesn’t do injury to others.

89. What are the ingredients under the scienter rule.

i) No escape needs to have occurred

ii) It is based on the possession of the animal

iii) It deals with the personal injuries

90. Write short notes on the following.

a) Ferae naturea.

These are animals which are dangerous by nature, all animals which are not by nature harmless or haven’t been tamed by man and domesticated are conclusively presumed to have such tendencies to do harm so that the scienter rule need not in their case be proved.

b) Mansuetea naturea;

ordinarily  harmless animals, those harmless  by their very nature, character  and those shown by long experience to be harmless these are presumed to be harmless until they have manifested a savage or viscous propensity proof of such manifestation is proof of scienter.

91. When can one be liable under the scienter rule.

When an animal ferae naturea causes injury liability on the part of the keeper thereof automatically arises but when the animal is harmless then the plaintiff must prove scienter.

92. Who of the two is the proper defendant under the scienter rule ‘the owner or the possessor.’ Of the animal.

Liability in scienter is by possession rather than ownership in the case of walker v hall the trainer of the horse which he knew was accustomed to bite was held liable simply because he had control over the animal.

93. What exactly amounts to a mischievous propensity on the part of mansueturea animals?

i) The animal had previously committed or attempted to commit an act showing that particular trait of viciousness complained of.

               ii)  The defendant knew of the act or attempt.

94. Briefly state how one can be held liable for fire escape.

Uganda Motors limited v Wavah holdings, it was stated that a man is liable for damage done by fire originating on his property where because of negligence and where no explanation could be given on what caused the fire. Therefore one can be liable where there is negligence and can offer no explanation for the cause of the fire.

95. What do you understand by non natural use of land in strict liability?

This is when something special is brought on land bringing with it increased danger to others and something not in the ordinary use of land and not for the benefit of the community.

96.  What is nuisance?

In tort law a type of wrong arising from the unreasonable improper indecent or unlawful use of property to the annoyance or damage of another or the general public.

97. What is public nuisance?

This is interference with the common right of the general public or an indefinite number of persons an unreasonable interference with the health, safety, peace or comfort of the community interferes wit the public as a class not merely one person e.g shooting fireworks in the streets, storing explosives, practicing medicine without a licence, harbouring a viscous dog, house of prostitution

98. Define private nuisance and give examples of what would constitute private nuisance.

An unlawful, indirect, continuous interference with the persons interest in the use and enjoyment of his land.

For instance vibration or blasting that damages a house, destruction of crops, raising of water table or pollution of the soil a stream or an underground water system. Examples of nuisances interfering with comfort, convenience or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, and high temperatures.

The law recognizes that land owners or those in rightful possession of land have the right to the un impaired condition of the property and to reasonable comfort and convenience in its occupation.

99. What are the defenses to nuisance and its remedies?

a)     a)  Statutory authority; normally public bodies are exempted from liability unless it is shown that they acted negligently.

b)    Act of a stranger or third party which could be reasonably anticipated.

c)     Volenti non fit injuria; the plaintiff has knowingly and voluntarily consented to the bringing of the thing on the defendants land.

d)    Contributory negligence; the plaintiff saw the danger and may be said to have courted it.

Remedies

a)     Injunction

b)    Damages

100. Briefly discuss Occupiers Liability.

The liability of an occupier of land or premises to persons on the land for the condition of premises and things done there