LAW OF TORT

LECTURE GUIDE

BY: DR. OLIVIA ANKU-TSEDE

NEGLIGENCE

Negligence refers to careless conduct in circumstances where a little more care would
have been needed (indifference).

Negligence as a tort has been defined as the breach of a legal duty to take care which
results in damage, undesired by the defendant to the Plaintiff.

Reasonability
It has been held that negligence is the omission to do something which a reasonable man
gathered upon those considerations or circumstance will do or doing something which a
reasonable and prudent man would not do.

Edusei J in Alhassan Kotokoli . v Moro Hausa held that;

In a strict legal analysis negligence means more than needless/careless conduct whether
by omission or positive act. It is properly speaking a duty, breach and damage thereby
suffered by the person to whom the duty was owed.

Carelessness would not be enough. Thus to succeed in an action in negligence, the

following three ingredients must be established:
1) Duty of care owed by the defendant to the plaintiff either personally or
because the plaintiff belongs to a class of persons to whom the duty is owed.
Unless the plaintiff can show that defendant owes him a duty of care in the
circumstances there can be no negligence.
There must be proof that the harm suffered by the plaintiff was foreseeable as
arising from the defendants conduct.
2) Plaintiff must prove that the defendant was in breach of the duty that he owed
the plaintiff (defendant failed to take care, required by the law).
3) The damage or injury that the plaintiff suffered must be one which resulted
from the defendants conduct. Defendants breach must have brought about
the damage. (damage should be caused as a result of the breach)

The Ingredients of Negligence

1. Duty of Care
To succeed in an action, the Negligence complained of should be dependent on a duty to
take care.

Whenever one person in such circumstances is placed in such position with regards to
one another such that if he is not careful he will cause injury to that person or property of
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that person, there is a duty on him to be careful. That is, a person owes a duty to take
care, where he is placed in circumstances as any reasonable person can tell that if care is
not taken he will cause injury to another.

Donoghue v. Stevenson 1932 AC 562.

Plaintiff was given a ginger drink from another who bought it from the manufacturer. The
drink contained decomposed remains of a snail and he sustained injuries.
He therefore sued the manufacturer.

It was decided in this case that the basis of liability in the tort of negligence is moral
fault, thus unless we can hold the defendant in some sense morally answerable for the
injury suffered by the plaintiff, the action in negligence will not succeed. In this case the
manufacturer owed a duty to take such care that the bottle should have been free of any
noxious matter. He would thus be liable in tort if that duty was broken.

Moral Basis
This is where the defendant in what he did failed to measure up to what society expects
of him. For example there is a legal duty not to commit assault or battery or defamation
etc.

In explaining what constitutes duty of care, Lord Atkin cited the neighbour principle:

- you must not injure your neighbour

- you must take reasonable care not to injure your neighbour.

Duty of care would thus be owed by the defendant to all those who are his neighbours.

Who is your neighbour

One who is closely and directly affected by the defendants conduct.

Therefore if a consumer suffers anything then the manufacturer has not taken
reasonable care.

1) The Test of reasonable fore sight is based on the neighbour relationship.

Plaintiff must prove that he belonged to the group of whom the plaintiff
should have a contemplation of affecting them by his conduct if he does not
take reasonable care.
2) Manufacturer holds a duty of care to consumers manufacturers liability
principle.

Caparo Industries v. Dickman

An accountant audited the company and said the company was in good health. A
Shareholder increased his shareholding in the company as a result of the picture painted.
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He however lost his investment and therefore sued the accountant since the picture they
portrayed was exaggerated.
It was held that three considerations had to be taken into account in determining when
there is a duty.
1) There must be a reasonable forseeability of the relevant loss/injury, not
exactly the one suffered by the plaintiff, but any.
2) It must be just and reasonable that a duty should exist.
3) There must exist sufficient relationship of proximity between the defendant
and the plaintiff. Those closely and directly affected by the acts of the
defendant that he should reasonably take care in dealing with them.

2. There must be a Breach of that Duty

3. The breach must result in Damage or Injury

DEFENCES TO NEGLIGENCE

Contributory Negligence

If defendant is able to show Plaintiff contributed to the injury, the action would fail
completely.

In a case where the Plaintiff suffered damage when he rode in defendants car knowing
defendant who was driving was impaired by drinks and yet accepted the lift and did not
put on seat belt. It was held that plaintiff was careless in taking the ride in the
circumstance and in not putting on the belt it amounted to contributory negligence.

A person who goes to a sport event must be taken to have assumed voluntarily the risks
involved/associated in that event.

If you are allergic to key soap and yet take a job in a key soap company you cannot
complain.

VICARIOUS LIABILITY

Employers

This refers to the duty employers owe to 3rd parties for the wrongs of their employees.

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To determine whether an employer owes an employee that duty to be vicariously liable
one needs o determine the type of employment in question.

Types of Contract of employment

1. Contract for Service
The only thing which connects them is the service to be rendered. The person who
provides the service is an independent contractor and therefore will be exclusively
liable for damage caused in the course of duty.

2. Contract of Service
The employer owes an obligation to him, and the employer is liable for damage
caused by his employee. This type of contract connotes continuity of service.

How to determine which person is an employee.

Problems arise where employees do not remain in the exclusive service of the one who
employed them. E.g. Assigning an employee to a job for another employer. In that
circumstance, issues of who exercises control over the employee may arise and that may
determine who his employer is.

Laryee v. Anana 1964 GLR 755

It was reasoned that the alleged master must have the power of control and of dismissing
for disobedience. If the master has power to do so, he might be the employer.

The 1st requirement is that an employer/employee relationship must be established

before the employee or 3rd party can bring an action.

Employers duty to 3rd parties Vicarious liability.

This is in relation to Employers liability for the torts of his employees. Eg.:
battery/assault etc. The Plaintiff must establish an employer/employee relationship. A
master has been held to be responsible for the acts of his employees, committed in the
course of his employment.

This does not mean that an employer is responsible for every act of his employees.
In Century Insurance Company v. North Ireland 1943 AC 509, it was noted that vicarious
liability does not discharge the employee completely.

Zaglou v. Kumasi Brewery Ltd.

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The Plaintiff was a Taxi driver, a little close to 11pm defendant driver collided with the
plaintiffs taxi in Accra and the taxi got extensively damaged. The collision was due to
the negligence of defendants driver.

The Defendants Driver had two cases of star beer in the car and had authority to take
another somewhere else and keep the car in his house.

The issue was whether, close to 11pm at the junction of Kwame Nkrumah Avenue and
Farrar, the Defendant who at the material time had two cartons of employers beer, was
acting in the employers authority and whether he was on his way from the employers
house to the defendants house. Note that defendants driver was to park the car at 6pm.

It was held that where a driver regularly in possession of a delivery van, which he could
park in his house as if it were his own, is found in Accra with a brand of beer brewed and
sold by the defendants company, he is entitled to assume he is going about his masters
business.

The issue is whether the driver could be said to be acting within the scope of his
authority. In this case it is a determination of fact. That is whether the deviation of his
authority was far or within the scope of the authority of the employer.

AG. v. Dade

A driver took the employers car to drop a colleague contrary to instructions; they were
not allowed to do so unless there was a fire outbreak. It was held that the employer would
not be liable since he used the vehicle for an entire private purpose.

Determining factors

The purpose of which the employee set out for;

The time of driving, during which the tort was committed;
How far out did he go (degree of deviation).

There are times that the employees actions may be contrary to express instructions and in
the course of doing the forbidden act, he commits a tort. Is his master still answerable?

Canadian Pacific Railway Co. v. Lockhart

An employee in complete disregard of the authority of his employer used a car for
another purpose for duties and on his way injured the plaintiff. It was held that the means
of transport used was incidental to the execution of that which he was employed to do.

The instruction which the employee disobeyed only affected the means of which he was
employed. The fact of an express instruction would not enable the employer to escape
liability.

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Whether the instruction affects the means of which the employee works or the
scope.

If it affects the scope and he falls out, the employer would not be liable but if it affects
the manner or means, the employer cannot escape liability.

Two determining factors for a servants Act.

Was it merely a wrong method of doing an authorized act.

Was the act done for the servants own purposes and not in his masters interest.
If what the servant does is reasonable to protect the masters property the master
is responsible.
If he used excessive force, the force used brings the act out of the masters
authority (that is, if he does more than necessarily required)

Whether an employer can be said to have authorised an illegal act.

In a case where an employee stole the Plaintiffs coat, the court held that an employer is
answerable for the theft of an employee. It reasoned that, if the employee was not asked
to wash the coat, he would not have had access to steal it.

Duty to Workmen
Ataa v. Ashanti Goldfields 1971 2 GLR 421

Issah v. Nim Timbers 1980 GLRD 49

An employer owes a duty to his employees to take reasonable care for their safety in
the course of their operation.

These duties include;

a) duty to provide competent fellow workmen
b) duty to provide adequate material and
c) duty to provide a proper system of work and effective supervision.

The above is a summary of the duties of the employer under section 9 of the
Labour Act, which provides as follows:

To provide work and appropriate raw materials, machinery, equipment and tools;
To pay the agreed remuneration at the time and place agreed on in the contract of
employment or collective agreement or by custom without any deduction except
deduction permitted by law or agreed between the employer and the worker;

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 To take all practicable steps to ensure that the worker is free from risk of personal
injury or damage to his or her health during and in the course of the worker's
employment or while lawfully on the employer's premises;
To develop the human resources by way of training and retraining of the workers;
To provide and ensure the operation of an adequate procedure for discipline of
the workers;
To furnish the worker with a copy of the worker's contract of employment;
To keep open the channels of communication with the workers; and
To protect the interests of the workers.

The duty of the employer is personal to the employer and he cant successfully delegate
it. He will be liable even if the damages were caused while another was acting in his
place.

An action was brought by the deceaseds wife, when her husband died as a result of
poisonous gas outbreak, whilst working for defendants in a coal mine.

It was held on appeal that employers were under a duty to appoint and keep in order the
mine not only people with proper qualification but people who were sufficiently qualified
and experienced. The people had shown lack of experience and therefore the employer
was in breach.

If an employer employs a practical joker whose jokes cause injury, the employer would
be in breach.

The duty to provide adequate equipment and materials includes protective clothing.

A Defendant bought some tools on the market for their employees. Unknown to them it
was defective and the defect was not discoverable. Plaintiff used it and when he hit a
metal chip flew into and destroyed his left eye. There was no negligence in the
employment system of insurance and inspection. In an action in respect of the defective
tool, it was held that the defendants werent liable for the injury because they had
employed reasonable care to ensure that he used the right tool, the defect wasnt their
fault.

Secondly there was no way he would have detected it, neither was there a contract
between employer and manufacturer.

Personal obligation of employer does not mean he is answerable for all. Duty to provide
equipment does not mean he should go and make the tools himself, so long as he bought
them on open market and not from some quark place.

RIGHTS OF A WORKER (SECTION 10)

To work under satisfactory, safe and healthy conditions;
To receive equal pay for equal work without distinction of any kind;
To have rest, leisure and reasonable limitation of working hours and period of
holidays with pay as well as remuneration for public holidays;

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 To form or join a trade union; (SEE ALSO SECTION 14)
To be trained and retrained for the development of his or her skills; and
To receive information relevant to his or her work.

Note that workers have duties under section 11 of the Labour Act.

DUTIES OF WORKERS (SECTION 11)

1. To work conscientiously in the lawfully chosen occupation;
2. To report for work regularly and punctually;
3. To enhance productivity;
4. To exercise due care in the execution of assigned work;
5. To obey lawful instructions regarding the organisation and execution of his or her
work;
6. To take all reasonable care for the safety and health of fellow workers;
7. To protect the interests of the employer; and
8. To take proper care of the property of the employer entrusted to the worker or
under the immediate control of the worker.

The obligation imposed on the manufacturer has been extended from the case law to
repairers.

In a case where a Mechanic (repairer) removed a tyre to repair a puncture, the tyre
came off due to his negligence. He was held to be in the position of a manufacturer and
should have taken care so as not to cause injury to his customer.

Brown v. Cotterill 193454 Times Report 51

A Mason was also considered a manufacturer when he erected a tombstone

carelessly. When the Plaintiff went there to put flowers on the tombstone it fell on him.
The mason who erected it was considered a manufacturer and therefore liable for
negligence.

Products

Grant V. Australian Knitting Mills Ltd.

Plaintiff bought a packet of woolen under wear with a brand name when he wore one of
the articles he suffered a disease since the garment contained excess chemical caused by
negligence in the process of manufacturing. The excess chemical was not discovered by
reasonable examination. The manufacturer was held to be liable

The principle applies to other products either used internally or externally. Products are
extended to all things manufactured.

The test is whether the manufacturer contemplates that any defect will remain at the time
of its use and not that the defect can be detected.
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He may discharge this duty by bringing the defect to the knowledge of the user, where the
defect cannot be reasonably detected by the user.

If he does not expect the defect to remain at the time it gets to the user he could not be
liable.

If the product is put to a use not contemplated by the manufacturer, he will not be liable.
e.g. using a screw driver to open a can drink.

NUISANCE

Types of Nuisance

a) Public Nuisance: This is covered by the criminal code. E.g. engaging in disorderly
conducts or throwing rubbish in the streets or preventing burials.

b) Private Nuisance affects individual persons, and may not affect the community as
a whole.

PUBLIC NUISANCE
If it affects the community as a whole it would be construed as a conduct constituting
public nuisance and can only be stopped at the instance of a public authority and not
the private individual.

If the nuisance, though wide spread in its effect, has an effect on you over and above
what the general community is subject to, though it remains a public nuisance, because
you are suffering more than the others, you can bring an action for the imposition of an
injunction or restraining order.

Public Nuisance affects the community as a whole and the effect is indiscriminate but if it
affects you more than the others you can bring an action to stop it. Both are based on
annoyance and inconvenience.

PRIVATE NUISANCE
In private nuisance, the individual is subjected to the inconvenience.

It has been held that the purpose one puts his property to is not necessary. In nuisance,
whether one puts his property to natural or non-natural use is irrelevant, but if it affects
or inconvenience another, the person committing the nuisance would be liable.

A Defendant is guilty of private nuisance, if he does an act directly causing physical

injury to Plaintiffs land or substantially interferes with anothers use and
enjoyment of his land provided his conduct is unreasonable.

Public nuisance revolves around unreasonable conduct. Nuisance revolves around

question of reasonableness.
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The law deals with those who go beyond what is reasonable.
That is:
1. The Law looks at the purpose behind the defendants behaviour. So that if the
primary purpose is to injure his neighbor, his conduct would be
unreasonable.
2. The suitability of the locality for acts that the defendant is engaged in. That is,
where hes is doing the act in a place unsuitable for the act, his actions would be
held to be unreasonable.

In Aidoo v. Adjei it was held that to operate a chop bar in a residential area was a
nuisance.

In another case a plaintiff bought a house in an area which was partly rural and largely
residential The defendant kept cockerels that made noise from 2am to 7am and plaintiff
could not sleep. It was held that a nuisance had been proved and what was happening was
the running of a poultry business and an injunction was granted to restrain the defendant.

3. To succeed in an action for nuisance the plaintiff must prove the existence of
damage. There must be injury to a property or a personal discomfort or
inconvenience. The interference or injury must be substantial.

4. It is only an owner or one with proprietary interest that can sue in nuisance, being
in occupation alone does not entitle one to sue in nuisance.

5. An action for nuisance can be brought against the person who commits it or
against the master of the servant who commits the nuisance.

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