Law of Torts II - Law 324 - PDF

Law of Torts II Law 324 NATIONAL OPEN UNIVERSITY OF NIGERIA SCHOOL OF LAW COURSE CODE: 324 COURSE TITLE: LAW OF TORTS II Law of Torts II Law 324...

Law of Torts II Law 324 NATIONAL OPEN UNIVERSITY OF NIGERIA SCHOOL OF LAW COURSE CODE: 324 COURSE TITLE: LAW OF TORTS II Law of Torts II Law 324 COURSE CODE: 324 COURSE TITLE: LAW OF TORTS II COURSE WRITER/DEVE LOPER: DR. R. OLAOLUWA COURSE EDITOR: PROF. CHIOMA K. AGOM O AG. DEAN: IFIDON OYAKHI ROMEN, Ph.D, BL COURSE COORDINATOR: MR. AYODE J.I. IGE, LLM, BL 1 Law of Torts II Law 324 2 Law of Torts II Law 324 LAW 324 LAW OF TORTS II CONTENT MODULE 1 NUISANCE ------------------------------------------------------------------- 2 UNIT 1 PUBLIC AND PRIVATE NUISANCE ---------------------------------- 2 UNIT 2 THE BASIS OF LIABILITY IN PRIVATE NUISANCE ------------ 10 UNIT 3 STRICT LIABILITY: RULE IN RYLAND V. FLETCHER --------- 33 UNIT 4 STRICT LIABILITY: LIABILITY OF ANIMALS -------------------- 47 MODULE 2 VICARIOUS LIABILITY ------------------------------------------------ 60 UNIT 1 MASTER’S LIABILITY FOR SERVANT’S TORTS ------------------ 60 UNIT 2 FRAUD OR THEFT OF BY SERVANTS ------------------------------ 72 UNIT 3 VEHICLES’ OWNERS AND CASUAL AGENTS ------------------ 79 UNIT 4 LIABILITY FOR INDEPENDENT CONTRACTORS -------------- 87 MODULE 3 DEFAM ATION ----------------------------------------------------------- 93 UNIT 1 DEFAMATION -------------------------------------------------------------- 93 UNIT 2 LIBEL AND SLANDER --------------------------------------------------- 100 UNIT 3 SPECIAL DAMAGES IN SLANDER ---------------------------------- 108 UNIT 4 DEFENCES ------------------------------------------------------------------ 118 MODULE 4 DECEIT ---------------------------------------------------------------------- 129 UNIT 1 FALSE REPRESENTATION OF FACTS ------------------------------ 129 UNIT 2 STATEMENT RELIED UPON AS CONVEYING INTENTION- 138 UNIT 3 DAMAGE -------------------------------------------------------------------- 145 MODULE 5 ECONO MIC TORTS ----------------------------------------------------- 150 UNIT 1 PASSING OFF ---------------------------------------------------------------- 150 UNIT 2 CONSPIRACY --------------------------------------------------------------- 162 UNIT 3 INJURIOUS FALSEHOOD ----------------------------------------------- 168 UNIT 4 INTERFERENCE WITH CONTRACTS ------------------------------- 175 UNIT 5 TERMINATION OF TORTS -----------------------------------------------180 3 Law of Torts II Law 324 LAW 324 LAW OF TORTS MODULE I: NUISANCE UNIT 1: PUBLIC AND PRIVATE NUISANCE 1.0 Introduction 2.0 Objectives 3.0 Main Contents 3.1 Nuisance Defined 3.2 Public Nuisance 3.3 Private Nuisance 3.4 Categories of Private Nuisance 4.0 Conclusion 5.0 Summary 6.0 Tutor-Marked Assignment 7.0 References/Further Reading 1.0 INTRODUCTION Nuisance is a legal term which has no definite meaning. It generally covers acts unwarranted by law which causes inconvenience or damage to either the individual or the public in the exercise of rights common to all subjects, acts connected with the enjoyment of land, other environmental rights and acts or omissions declared by statute to be nuisance. The distinction between Nuisance, some terms like trespass and Negligence which you have learnt last semester may be narrow. In Scotland, the distinction between public and private nuisance is not recognized. It should be noted that apart from nuisances declared to be so by 4 Law of Torts II Law 324 statue, nuisance is not a ground for criminal proceedings. Only the party materially inconvenienced by actions may complain of them as a nuisance. Nuisance is a civil matter. It may be criminal sometimes as in public nuisance. In this unit we shall concentrate on public and private nuisance. 2.0 OBJECTIVES At the end of this unit, students should be able to:  Define and recognize actions which can classified as Nuisance.  Identify public nuisance  Identify private nuisance  Explain the categories of private nuisance  Understand the general nature of nuisance  Differentiate nuisance from trespass, negl igence and other terms. 3.0 MAIN CONTENTS 3.1 NUISANCE DEFINED Nuisance is a term used to register or express one’s condition of inconvenience or annoyance caused by a direct or indirect action of another person. It can also be said that nuisance is the negative effect of somebody’s action or omission against the normal enjoyment of life by the complainant. The Tort of nuisance has a restricted scope and not every inconvenience or annoyance is actionable. The situations described as nuisance include: 1) Emissions of notious gas or fumes from a factory. 2) Emission of notious gas or fumes from moving lorries, trains or aircraft. 3) Noise from the crowing of cocks in the early hours of the morning. 5 Law of Torts II Law 324 4) The obstruction of public highway for social or religious activity. 5) The collapse of a building due to the vibrations of another company next door. 3.2 PUBLIC NUISANCE A public nuisance is committed where a person carries on some harmful activities which affect the whole people or part of the people. An example of a public nuisance is where a manufacturing company causes or allows fumes or smoke to pollute the atmosphere in the locality or leakage of atomic waste can dastardly affect the environment causing damage to plants, animals and human beings. The Attorney General usually acts for the public. A private person cannot sue in public nuisance except he proves that he suffers a ‘particular damage’ far above the general damage suffered by others. Public nuisance can be prosecuted as a criminal matter. See Adeniran v. Interland Transport (1991) 9 NWLR 155; Yinusa Daodu v. WWPC (1998) 2 NWLR 315 3.3 PRIVATE NUISANCE Whereas public nuisance involves injury or interference with the right of the public at large, the law of private nuisance is designed to protect the individual owner or occupier of land from substantial interference with his enjoyment thereof. See Abiola v. Ijioma (1970) 2 ALL NLR 268; Hunter v. Canary Wharf Ltd (1997) 2 N.L.R 684; Cambridge Water Works Co. v. Eastern Leather. The main difference between public and private nuisance are therefore: 1) Public nuisance is a crime1 and private nuisance is a civil wrong only. 1 Penal Code SS. 192 and 194, Criminal Code S. 234, Under the Criminal Code the Offence is called “Common Nuisance”. 6 Law of Torts II Law 324 2) To succeed in private nuisance, the plaintiff must have interest in land2. No such requirement in public nuisance. 3) Damages for personal injuries can be recovered in public nuisance3, whether such a claim will lie in private nuisance is doubtful. 3.4 CATEGORIES OF PRIVATE NUISANCE Private nuisance falls into three categories: i. Physical injury to the plaintiff’s property e.g. where vibrations from the defendant’s building operations cause structural damage to the plaintiff’s house or where the plaintiff’s pets are killed by fumes from the defendant’s factory. ii. Substantial interference with the plaintiff’s use and enjoyment of his land, e.g. where the plaintiff is subjected to unreasonable noise or smell emanating from the defendant’s neighbouring land4. iii. Interference, easement and profits e.g. where the defendant wrongfully obstructs the plaintiff’s right of way or right to light. 4.0 CONCLUSION Nuisance is an action or omission on the part of the defendant that causes a lot of inconvenience, interference and damage to the plaintiff. It is actionable by the individual for damages or injunction against the defendant. The action can be taken by the individual plaintiff on his own behalf in private nuisance or by the Attorney-General on behalf of the state in public nuisance. The courts will always entertain such cases in order not to cause disaffection or chaos in the society. 2 Malone v. Leakey (1967) 2 KB 141. 3 Castle v. St. Augustine’s Links Ltd (1922) 38 T.L.R 615 4 Abiola v. Ijioma (1970) 2 ALL NLR. 268 7 Law of Torts II Law 324 5.0 SUMMARY Nuisance is a situation wherein the action is bringing enjoyment and financial increase to one party and the other party is suffering from the same action or omission. Nuisance can be public or private. The plaintiff is the party who suffers from the act or omission causing nuisance. The private person brings an action in private nuisance on his own behalf and in his private interest. The Attorney-General brings an action in public nuisance on behalf of the state and in the interest of the society. He represents the whole people with the power and resources of the state. It has been said earlier that public nuisance is a crime. As such, it is the duty of the Attorney-General to initiate the institution of criminal cases against such persons for thei r acts or omission constituting public nuisance. 6.0 TUTOR-MARKED ASSIGNMENT 1) Differentiate between public and private nuisance. 2) Mr. Ojo has flourishing poultry supplying the community quality eggs and poultry products. His neighbour Mr. Chukwu is complaining threatening to sue Mr. Ojo to court and asking the court to stop Mr. Ojo from operating the poultry because of the bad odour therefrom coupled with the noise coming from the crowing of cocks especially at night time which always affects him and his household. What is Mr. Chukwu’s chances of success if he carries out his threat? Advice him with the aid of decided cases. 8 Law of Torts II Law 324 7.0 REFERENCES/FURTHER READING   Fleming, J. (1992), The Law of Tort (8th ed.) Sydney: The Law Book Company Limited.  Gardiner, D. (1991), Outline of Torts. Sydney, Butterworths.  Gillies, P. (1993), Business Law (5th ed.), Federation Press.  Holmes, D. (1984), Butterworth’s Student Companion-Torts. Sydney: Butterworths.  Latiner, P. (1995), Australian Business Law, North Ryde: CCH.  Smyth, J.E, Soberman, D.A, Telter, J.H and N.V Australian Business Law (2nd ed.) Sydney: Prentice Hall.  Kodilinye and Aluko (2005), The Nigerian Law of Torts, Revised Edition, Spectrum.  Ese Malemi (2008), Law of Tort, Princeton Publishing Co., Ikeja, Lagos. 9 Law of Torts II Law 324 MODULE I: UNIT 2: THE BASIS OF LIABILITY IN PRIVATE NUISANCE 1.0 Introduction 2.0 Objectives 3.0 Main Contents 3.1 Injury and Interference 3.2 Reasonableness of the Conduct of Defendant 3.3 Who Can Sue? 3.4 Who Can Be Sued? 3.5 Defences 3.6 Damages 4.0 Conclusion 5.0 Summary 6.0 Tutor-Marked Assignment 7.0 References/Further Reading 1.0 INTRODUCTION The law of private nuisance is deigned to protect the individual owner or occupier of land from substantial and continued interference or disturbance in the enjoyment of one’s property. Occasionally isolated nuisance can amount to a 10 Law of Torts II Law 324 nuisance. See De Keyer (1914)30 T.L.R. 257. A private nuisance is any unlawful or unreasonable interference with another person’s convenience, use and enjoyment of land or any right founding and concerning land. It is any interference with the reasonable comfort, convenience, occupation, health, use and enjoyment of one’s land, or other property. Generally, a private nuisance is the use of a person or his land or property unreasonably to the detriment of the people in the environment surrounding his land or property. 2.0 OBJECTIVES At the end of the un it, students should be able to:  Determine what act constitutes private nuisance.  Determine classes of acts which amount to private nuisance.  The nature of private nuisance.  The parties to a case in private nuisance.  Liability of parties.  Defences of parties. 3.0 MAIN CONTENTS The contending issue when studying the law of private nuisance is to strike a balance between the right of the owner or user of a property and the right of another person who suffers from the enjoyment of the usage either by the owner or another person. In order to find solution to the striking of a balance some requirements have evolved: 11 Law of Torts II Law 324 3.1 INJURY AND INTERFERENCE The injury or interference complained of will be considered by a court in the following one or a combination of factors: 1) Whether there is physical injury or sensible material damage. 2) Whether there is substantial interference with the use and enjoyment of the land. 3) Unreasonableness of the conduct of the defendant. 4) The malice or motive of the defendant. 5) The utility of the act of the defendant. 6) Duration of the harm or inconvenience. 7) Practicability of the relief sought by the plaintiff. 8) The carelessness of the defendant. 3.1.1 Physical Injury Or Sensible Material Damage The plaintiff can successfully sue in private nuisance if he can prove that he had suffered or he is suffering real or sensible damage or inconvenience. The nature of the injury suffered by the plaintiff will be examined by the court. The claim will succeed where a private nuisance is alleged to have caused damage to property directly or indirectly and only if the injury is sensible or substantial and can be perceived by any of human sense organs without the aid of science. When a physical damage is substantial and can be easily seen and accessed, without the assistance of a scientific aid, there is no problem. However, where the damage cannot be easily seen, then expert evidence may be led including the aid of scientific apparatus to prove it. 12 Law of Torts II Law 324 Therefore, in determining what amounts to a sensible material damage to property, it is sufficient if the aid of science is used to identify such damage or inherent change in the property. Thus, in appropriate cases, scientific edifice is admissible to ascertain that actual damage has occurred in property occasioned by the defendant’s conduct. It will thus be easy for the court to conclude that there is private nuisance where damage is done by the defendant’s conduct to the plaintiff’s property or the defendant’s action causing reduction in the plaintiff’s property. In ST. HELEN’S SMELTING CO. v. TIPPING (1865) 11 HL Cases 645, the plaintiff respondent, who lived in an industrial area, established that his trees and shrubs had been sensibly damaged by fumes from the copper smelting plant of the defendant appellant company and that the value of the property had been reduced… The House of Lords held that this was an actionable nuisance. The requirement of sensible material interference with the plaintiff’s land was satisfied. It was irrelevant that the defendant was carrying on business in an industrial area. In IGE v. TAYLOR WOODROW (NIGERIA) LTD (1963) LLR. 140 Vibrations from the construction activities of the defendant company who were driving piles into the ground in the preparation of a site for a high rise building, caused damage to the nearby building of the plaintiff. Whilst the action in negligence failed, the court held that the claim in nuisance succeeded. In this case, De Le Stang C.J said: The person who uses his land in the exercise of his rights incurs no liability if he injures his neighbour, unless in so doing he is guilty of trespass, nuisance or negligence. In the present case, it is clear that… in the course of doing what was lawful, a nuisance was caused from which damage resulted. The fact that what was being done was in itself lawful was consequently no excuse. 13 Law of Torts II Law 324 See also SHELTER v. LONDON ELECTRIC CO. (1958) I Ch. 287 C.A; MATANIA v. NATIONAL PROVINCIAL BANK (1936) 2 ALL ER 633 C.A) 3.1.2 Substantial Interference With The Us e And Enjoyment Of Land When interference with the use and enjoyment of the land is alleged, as a general rule, a plaintiff’s claim would succeed if the interference is substantial. The classic rule which has been cited with approval in several cases in the Nigerian jurisprudence is the case of VANDERPANT v. MAYFAIR HOTEL CO. LTD (1930) I Ch. 138 (Also see TETTEY v. CHITTY (1986) I ALL ET 663) where Luxmoore J. said: Every person is entitled as against his neighbour to the comfortable and healthy enjoyment of the premises occupied by him, and in deciding whether, in any particular case, his right has been interfered with and a nuisance thereby caused. It is necessary to determine, whether the act complained of is an inconvenience materially interfering with the ordinary physical discomfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions obtaining among English people. The learned judge continued: It is also necessary to take into account the circumstances and character of the locality in which the complainant is living. The making or causing of such noise as materially interferes with the comfort of a neighbour, when judged by the standards to which I have just referred, constitutes an actionable nuisance, and it is no answers to say that the best known means have been taken to reduce or prevent the noise complained of, or that the cause of the nuisance is the exercise of a business or trade in a reasonable and proper manner. Again, the question of the 14 Law of Torts II Law 324 existence of a nuisance is one of degree and depends on the circumstances of the case. The application of these principles in Nigeria may be illustrated by the following cases: In ABIOLA v. IJIOMA (1970) 2 ALL NLR 268 the plaintiff and defendant occupied adjoining premises in a residential area in Surulere. The defendant kept poultry at the back of his house as a pastime. The plaintiff sued the defendant claiming that excessive noise made by the chickens in the early hours of the morning disturbed his sleep and that foul smells from the pens interfered with his comfort. Dosumu J. of the High Court of Lagos held: That was actionable nuisance. The learned judge cited with approval the dictum of Luxmoore in VANDERPANT v. MAYFAIR HOTEL CO. LTD and said that: In any organized society, everyone must put up with a certain amount of discomfort and annoyance from the activities of his neighbours; and in this case I have to strike a fair and reasonable balance between the defendant, who likes to keep poultry for his pleasure in his house, and a neighbour who is entitled to the undisturbed enjoyment of his property. The standard in respect of the discomfort and inconvenience which I have to apply in this case is that of the ordinary reasonable and responsible person who lives in this particular area of Surulere. In TEBITE v. NIGERIA MARINE & TRAINING CO LTD (1971) I U.L.R 432). The defendants had a workshop at 9 Robert Road where they carried on business of boat building and repairing adjacent to the plaintiff’s chamber being a legal practitioner at No. 11 Robert Road, Warri. The plaintiff sued for nuisance alleging that “by operating their machines continuously for several hours a day the defendants had persistently caused to emit from their workshop loud and 15 Law of Torts II Law 324 excessive noise and notious fumes which diffuse his premises and cause him much discomfort and convenience ”. The Learned Judge Atake J. examined the evidence and found that: Robert road was not zoned by the planning authority for residential and commercial purposes only, but that it had become accepted over the years as being an exclusively residential and commercial area. It was clear also that the inhabitants of the district were “well above the lowest class in the community”. The defendant was an “extraordinary neighbour” who had opened a workshop and produced noise “which in my view is certainly a good deal more than any noise that can be produced even in the noisiest Nigerian district, and a noise completely out of character with that ordinarily produced by ordinary people in any neighbourhood in this country… The plaintiff, before the defendant arrived as his next- door-neighbour, had, in conformity with the standard then prevailing in Robert Road, enjoyed a reasonable amount of peace, comfort and quiet in his premises, … but since the arrival of the defendant his comfort and work have been disturbed, and if they have been materially and substantially disturbed, he is quite entitled to succeed in this action. I have underlined ‘materially’ and ‘substantially’ because it is not sufficient in law that the plaintiff be merely disturbed occasionally by noise from the defendant’s operations. In MORE v. NNADO (1967) F.N.L.R 156 the plaintiff sued the defendant for nuisance occasioned by the latter’s excessive noise caused by playing stereograms unreasonably loudly until late every night in his neighbour’s palm wine bar. The plaintiff complained that as a result of which he had been compelled to seal up his louver windows with plywood sheets, and spend most of his time in the backyard of his house. Oputa J. (as he then was) held that there was an actionable nuisance that entitled the plaintiff to relief. The learned judged held that “the degree of nuisance from the defendant’s premises was more than the plaintiff is expected to tolerate in the 16 Law of Torts II Law 324 circumstances”. Moreoever, he was “satisfied that the defendant intentionally wanted to annoy” the plaintiff, and his evidence of malice strengthened the case against the defendant. Finally, His Lordship held that “in an actionable nuisance it is not necessary to prove any injury to health”, and that “a person who lives in a noisy neighbourhood is not precluded from maintaining an action in a nuisance from noise”. He can complain of any additional noise and bring an action if such additional noise is substantial. 3.2 REASONABLENESS OF THE CONDUCT OF DEFENDANT The conduct of the defendant in respect of injury to property or in respect of interference with the enjoyment of land is vital to the success of an action of the plaintiff in his claims for relief. The court will consider the conduct of the defendant whether it is reasonable having regard to the ordinary usage, life style or practice of mankind in the particular community under reference. For a plaintiff to succeed in a claim for nuisance, the defendant’s conduct must be adjudged to be unreasonable having regard to the circumstances of the case. There is no precise criterion for determining this issue of unreasonableness; a lot depends upon the circumstances of the individual case. Therefore the right to enjoy one’s premises or property is subject to the right of his neighbour not to be unreasonably interfered with. In the case of SEDLEIGH-DENFIELD v. O’CALLAGHAN (1940) AC 880 at 908, Lord Wright explained the law thus: A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with, it is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society. 17 Law of Torts II Law 324 In considering the reasonableness of the conduct alleged to be constituting nuisance, the court will apply the objective test. It is the test of the conduct of a reasonable man in that particular circumstance. That is a test of what a reasonable but neutral conduct of a member of the public would be in that instance. The courts have not defined the precise principles according to which the reasonableness of a conduct is determined. However, whether or not a particular act is reasonable or not is based on (a) a consideration of the nature and circumstances of the defendant’s activity on the one hand and (b) the nature and extent of the interference in the plaintiff’s enjoyment of his land. In deciding whether the defendant’s conduct is reasonable or not, the court will look at a number of criteria which include but not limited to: 1) The locality. 2) The utility of the defendant’s conduct. 3) The plaintiff’s abnormal sensitivity on his property. 4) The duration of the harm or injury. 5) The defendant’s malice. THE LOCALITY A saying goes thus that one man’s meat is another man’s trouble. The standard of conduct and comfort protected by the law for a community varies from place to place. The nature, character or standard of a locality differs with those obtainable in another locality. In cases of interference with the use and enjoyment of land but not in cases where there have been physical injury to property, the nature, character or circumstances of the locali ty where the activity has taken place may be taken into account. 18 Law of Torts II Law 324 The courts recognize that there is a national policy of allocating land for specific and different uses. Therefore, the court will determine whether a defendant is using his land for the purpose for which it was allocated. Whilst the normal life in a locality may be relatively quiet and peaceful, another locality may be bustling, noisy and boisterous. Therefore, what is nuisance differs from one locality to the other. One general exception is that there is no locality where the right of access to light for a building will be allowed to be interfered with as this will constitute nuisance in all localities. This is because, the right of access to light in one locality should also be ensured in other localities. THE UTILITY OF THE DEFENDANT’S CONDUCT The law allows a person to enjoy his property. Also the enjoyment of such properties can be of great benefit to community. The general rule is that the law will not allow a private nuisance to continue just because the defendant has shown that his conduct or act has social value, or is beneficial to the community. The tort of private nuisance is therefore concerned with balancing of the interests of landowners or users and their neighbours or adjoining landowners and other dwellers. The court as a general rule always put itself under caution in determining whether such conduct is nuisance and as a general rule will not compel a plaintiff to bear the burden alone of an activity which may be of benefit to others in the locality. THE PLAINTIFF’S ABNORMAL SENSITIVITY ON HIS PROPERTY The law of nuisance will normally protect a plaintiff who is a normal person and who suffers from an unreasonable conduct of the defendant. Where the conduct of the defendant is unreasonable he will be liable in nuisance to the plaintiff. 19 Law of Torts II Law 324 An unusually or abnormally sensitive plaintiff is not likely to succeed in a claim for nuisance. As a rule, the law does not protect a person who is unusually sensitive to the activities of others around hi m. The standard of sensitivities or tolerance that the court applies is that of a “normal” neighbour, person or property. The maxim in latin is: six utere tuo ut alienum non laedas meaning that “you should use your land in a way that will not harm other people”. The two points being raised here are: 1) The law of nuisance will not protect a plaintiff who is abnormally or unusually sensitive to the conduct of the defendant. 2) The law of nuisance will not protect the defendant who is aware that the plaintiff is very sensitive to a conduct but carries out the conduct to affect him in an unreasonable manner. In the case of ROBINSON v. KILVERT (1889) 41 Ch. D. 88 The defendant was manufacturing paper boxes in a house and leased the floor above to the plaintiff who kept a stock of brown paper therein. The defendant heated his store with hot dry air which raised the temperature of the plaintiff’s premises and the brown papers which were stored by the plaintiff’s store lost its special quality and consequently its value. The plaintiff sued for damages. The court held: that the defendant was not liable for nuisance. The brown papers lost its special quality and got damaged because of their particular sensitivity to temperature. In conclusion, when a plaintiff or his property is unusually sensitive to a tolerable or reasonable act of the defendant, which is a normal and regular act, the plaintiff will not succeed in a claim for nuisance. THE DURATION OF THE HARM OR INJURY 20 Law of Torts II Law 324 The duration, that is, how long should a nuisance or injury suffered by the plaintiff can be before he can bring a claim and succeed with it. The question of duration in the continuance of a nuisance can help a court to determine whether nuisance has occurred or not from the defend ant’s action. The action for claim may arise based on the duration of the conduct causing injury or inconvenience in two instance. 1) If the injurious action continues without a specific term limit. For example, a big generator emitting constant noise and fumes into ones premises will constitute a nuisance. 2) A one time noise and dust arising from the demolition of a building next to one’s property which is an isolated act of the defendant will not amount to a nuisance. In the case of SEDLEIGH-DENFIELD v. O’CALLAGHAN (1940) AC 880 HL, the Defendants/Respondents allowed the public pipe which was draining water from their land to remain blocked and Plaintiff/Appellants adjoining land was flooded with water as a result. The plaintiff sued for damages and the court held that; there was a nuisance caused by the defendants for allowing the annoying state of affairs to remain unrepaired. In this case, Lord Atkin stated that the defen dants: Created a state of things from which flooding might reasonably be expected to result, it was therefore a nuisance. But in the case of BARKER v. HERBERT ((1911) 2 KB 633 C.A). The defendant was the owner of a vacant house on a street with an area adjoining the highway. One of the railings of the house had been broken and there was a gap in the railing. A boy not living in the house climbed through the railing, fell and injured himself. The court held: that the defendant was not liable for nuisance. 21 Law of Torts II Law 324 This decision was based on the fact that the defendant had no knowledge of the breakage of the rail. THE DEFENDANT’S MALICE The intention, motive, malice or the malicious behaviour of the defendant will usually give the impression that the act of the defendant is unreasonable and therefore can amount to nuisance. It is generally not necessary to prove malice to succeed against the defendant in a claim of nuisance. A wrongdoer’s motive and intention considered to be malicious may show that he is not behaving reasonably and lawfully. Where the conduct of the defendant is considered to be wanton, reckless or malicious to spite or annoy a neighbour, the court will readily give judgment to the plaintiff as that will be considered to be a nuisance. Nevertheless, it should be noted that a plaintiff bringing a claim for nuisance is exercising a specific legal right where malice may not make interference unlawful. It should further be noted that there must be a balance between the enjoyment of one’s property and non-interference with a neighbour’s right. 3.3 WHO CAN SUE? The person who has a right and the right is being or has been taken away or being interfered with is the one that has a right to sue in the tort of private nuisance. In the light of the above, the person(s) who can sue in private nuisance are: 1) Any one who has or uses land, or has an interest in land. 2) An occupier or user of land. 3) A reversioner of land may sue if his reversionary interest in land is being or has been interfered with. 22 Law of Torts II Law 324 3.4 WHO CAN BE SUED? It is not anybody that can be sued in the tort of private nuisance. A person to be sued is any person in law bearing some legal responsibility in the enjoyment of a land or property being either the plaintiff or the defendant. The persons who can be sued for the tort of nuisance include: 1) The Creator of the Nuisance: A person who committed a nuisance may be sued. He is liable whether or not he is in occupation of land. His liability remains whether or not he is able to abate the nuisance without trespassing on the land of the third party. 2) The Landlord: The landlord is obliged to put his land or property in a state of affairs that will not constitute nuisance to visitors or other users of the premises. The liability of the landlord for nuisance may arise in the following circumstances: a) If he created the nuisance. b) Expressly or impliedly authorized or ratified the nuisance. c) If he allowed the state of affairs to continue. d) If the property constitute a nuisance. 3) An Occupier: An occupier is a person who has authority over the premises or any of the tenants he puts in occupation. The occupier may personally be liable in any of the following circumstances: a) If he created the nuisance. b) If his servant or agent created the nuisance. c) If he engages an independent contractor to commi t the nuisance. 23 Law of Torts II Law 324 d) If his licencee, guest, relation or lodger created the nuisance of which he knew or ought to know but failed to take appropriate step to stop it. e) If the nuisance was created by a trespasser, stranger, predecessor in title or act of God of which the occupier failed to do anything to stop its consequence. It should be noted that where there are several persons creating a nuisance, the plaintiff can sue only one or any of the joint tortfeasors. It will not be a valid defence for the defendant to show that he cannot answer for the nuisance of the other tortfeasors. 3.5 DEFENCES The defendant has a range of means of defence in a claim for nuisance against him in an action. The following defences may be available to the defendant in a claim against him for nuisance. 1) Reasonableness of His Act or Omission: A defendant may plead that alleged act of a nuisance was a normal or a reasonable act to be expected in that circumstance and in that community at that period in time and that there was no malice in the act complained against. A person who decides to build his residential house in an industrial estate cannot complain of interference or inconvenience occasioned by noise coming from the generator of a company near to his house. 2) Statutory Authority: As a general rule, the fact that there is a valid permit by a Government Department is not a licence to commit nuisance. However, a land that has been earmarked for a purpose by statutory authority, carrying out such provision will be a defence under statutory authority, especially when the defendant is not negligent in doing just that. 24 Law of Torts II Law 324 For example, a land earmarked for the construction of roads was used in building a residential house. That can be demolished and if the owner of the house brings an action against demolition or for compensation or for specific performance, the Government Department can rely on the statute as its authority to carry out the demolition as a defence. 3) Act of God: Act of God may be a defence in some circumstances. A road that is carved in and cut into two after a heavy rain and flooding of the area may not be attributable to the contractor that constructed the road. This is because, the defendant can plead Act of God in that circumstance. 4) Act of a Stranger: An act of a stranger may be a good defence if it is shown that the defendant has taken steps to discontinue the effect of the strangers act immediately the act came to his knowledge. 5) Consent: Consent will be a defence if the defendant has acted within the terms of agreement and has been reasonable in his act. For examples, a tenant who uses a rented apartment in a reasonable manner and in consonant with his tenancy can use that as a defence in an action for claim in nuisance against him. 3.6 DAMAGES Nuisance is not actionable per se, but the plaintiff must always prove that he suffered damage by the action or inaction of the defendant. However, there are three categories of cases where damage is strict and therefore needs no proof. They are: 1) Where the facts are overwhelming, damage is readily presumed. For example, where a house projected over the plaintiff’s adjoining land especially at the second or higher floors, the court will presume that 25 Law of Torts II Law 324 damage would be caused by rain-water dripping from the cornice on to the plaintiff’s land. See Fay v. Prentice (1845) E.R. 789. 2) Where the defendant interferes with an easement or right of way and access of the plaintiff, the court will presume that the plaintiff has suffered damage. 3) An injunction may be granted in an action where harm to the plaintiff is reasonably feared to be imminent though none has actually occurred. For example, a planned demonstration by a group of workers which is feared to disturb free flow of traffic and other activities of the state can be accepted by the court as a good reason for granting an injunction. 4.0 CONCLUSION Nuisance is an action or inaction which can cause harm, interference or inconvenience to the plaintiff. It is an arm of the municipal law that aims at maintaining good relationship between the citizens of a state or country. It is the aspect of the law that tries to teach a person to put his neighbour and other persons in his community into contemplation before embarking on any activity, business or pleasure. The law that tries to balance the right of the defendant to use and enjoy his landed property with that of his neighbour, the plaintiff who may suffer for that enjoyment. It gives redress to the plaintiff in deserving circumstances. 5.0 SUMMARY This unit is written on the basis of Liability in Private Nuisance. The best of liability includes injury, inconvenience and interference suffered by the plaintiff for which the defendant ought to pay or put the plaintiff’s property back into its original position, i.e. the position the plaintiff ought to have been had the 26 Law of Torts II Law 324 unreasonable offending injurious action or in-action had not been facilitated by the defendant. The unit also looks at who can sue in private nuisance and who can be sued. These are the persons who have right to enjoy their land and those who are interfering with that right of enjoyment as defendants. This unit also looks at defences such as reasonableness of the act of the defendant, statutory authority, act of God, act of a stranger and consent of the parties among other damages for a successful claim of the plaintiff against the defendant. 6.0 TUTOR-MARKED ASSIGNMENT The tort of private nuisance seems to over-protect the plaintiff against the defendant in the enjoyment of the rights attached to the defendants’ property – Discuss with the aid of decided cases. 7.0 REFERENCES/FURTHER READING  Fleming, J. (1992), The Law of Tort (8th ed.) Sydney: The Law Book Company Limited.  Gardiner, D. (1991), Outline of Torts. Sydney, Butterworths.  Gillies, P. (1993), Business Law (5th ed.), Federation Press.  Holmes, D. (1984), Butterworth’s Student Companion-Torts. Sydney: Butterworths.  Latiner, P. (1995), Australian Business Law, North Ryde: CCH.  Smyth, J.E, Soberman, D.A, Telter, J.H and N.V Australian Business Law (2nd ed.) Sydney: Prentice Hall.  Kodilinye and Aluko (2005), The Nigerian Law of Torts, Revised Edition, Spectrum.  Ese Malemi (2008), Law of Tort, Princeton Publishing Co., Ikeja, Lagos. 27 Law of Torts II Law 324 MODULE I: UNIT 3: STRICT LIABILITY: THE RULE IN RYLANDS V. FLETCHER 1.0 Introduction 2.0 Objectives 3.0 Main Contents 3.1 The Case of Rylands v. Fletcher 3.2 The Scope of the Rule in Rylands v. Fletcher 3.3 Fundamental Differences between Nuisance and the Rule in Rylands v. Fletcher 3.4 Application of the Rule in Nigeria 3.5 Defences 3.6 Damages 4.0 Conclusion 5.0 Summary 6.0 Tutor-Marked Assignment 7.0 References/Further Reading 1.0 INTRODUCTION The rule in Ryland v. Fletcher represents one of the principal areas of Strict Liability in the law of Torts. Liability is strict in cases where the defendant is liable for damage caused by his act whether he is at fault or not. The intention of 28 Law of Torts II Law 324 the defendant whether for good or bad is not put into contemplation in strict liability cases, what matters is whether that action results in damage suffered by another person. Strict liability is an absolute liability or liability without a fault. This, however, may be subject to any defence available to the defendant. See Ccmbridge Water Works Co v. Esthern Leather. 2.0 OBJECTIVES The objective of this unit is for the student to be abl e to:  Know what constitutes strict liability in the Law of Tort.  Know the specific nature of strict liability under the rule in Rylands v. Fletcher.  Be able to differentiate between the liability under Rylands v. Fletcher and other types of liability such as in nuisance and negligence.  Know whether and if it applies in Nigeria. 3.0 MAIN CONTENTS 3.1 THE CASE OF RYLANDS V. FLETCHER (1866) LR I. Exch. 265 Affirmed (1868) LR 2 H.L 330) The law of tort as stated in the Rule in Rylands v. Fletcher is a common law rule which was restated by Blackburn J. after summing up the existing principle of the common law which before then was scattered in earlier decided cases. In this case, the defendant/appellant who was a mill owner engaged independent contractor to build a reservoir on his land to supply water to his mill. During construction, the contractors found disused mine shafts and passages which unknown to them linked the plaintiff’s mines on the adjoining land. The contractors carelessly omitted to block the disused shaft and when the reservoir was filled with water, it escaped and flooded the plaintiff’s mine inflicting damage. 29 Law of Torts II Law 324 The plaintiff then sued for damage, the defendant’s conduct did not appear to come within the scope of any existing tort: they were not liable for trespass, because the damage was not direct and immediate; nor for nuisance because the damage was not due to any recurrent condition or state of affairs on their land; nor for negligence, because they had not been careless and they were not liable for negligence of their independent contractors. Blackburn J. held that the defendant was liable. On appeal, the House of Lords upheld the judgment of the lower court by affirming the liability of the defendants. According to Blackburn J. the principle in the case is that: A person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. In the House of Lords on appeal, Lord Cairns added the requirement that: The thing which escapes and causes damage should be a non-natural user of the defendants land. Fundamentally, the rule in Rylands v. Fletcher is characterized by the following: a) Bringing and keeping a non-natural user on one’s land. b) Duty to keep it on one’s land at own peril. c) Escape of the thing that causes damage. d) Liability for the natural consequences of its escape to another person’s land. 3.2 THE SCOPE OF THE RULE IN RYLANDS V. FLETCHER The scope of the rule in Rylands v. Fletcher includes the element which the plaintiff must prove to succeed in a claim under the rule. They include: 30 Law of Torts II Law 324 1) That he brought a non-natural user on his land, or kept it on his land. This means that the defendant brought and kept the things on his land himself or by a third party or an independent contractor. The word natural means that which exist in or by nature without any act or omission of the defendant. These include rocks, weeds growing above the fence to the adjoining premises, rain water, water from flowing river etc. A non-natural user is a thing which is purposely brought to the defendant’s land for purposes of enjoyment, commerce or for any other purpose but was brought by the defendant or a third party, independent contractor with his consent or careless omission. There must be a bringing or a keeping by the defendant of the thing that escaped and caused damage. Lawrence J. explaining the law in the case of Bartlett v. Tottenham (1932) I Ch. 114 at 131 (see also SMEATON v. ILFORD CORP 450 , NEPA v. ALLI (1992) 8 NWLR pt 259, p. 279) stated that the rule applies only to: Things artificially brought, or kept upon the defendant’s land. It follows from the above that, a defendant is not liable for the escape of things which are by nature or naturally are on land. The things which are by nature or naturally on land include: a) Vegetation which naturally grows on the land. Here a tree which spread its branches across the fence to a neighbours land cannot make the owner of the land to be liable in any claim by the plaintiff. This includes weeds, grass and trees of different types. b) Water which naturally flows as a river or which came as a result of rainfall. See Nicholls v. Marshall 31 Law of Torts II Law 324 c) Rocks which naturally exist on the defendant’s land. d) Rats, snakes, insects (snakes and rats can also be non-natural users). In the case of CROWHURST v. AMERSHAM BURIAL BOARD (1878) 4 Exch. D. 5 where the defendant Board planted yew tress on the boundary of its land. The branches of the yew trees protruded into the land occupied by the plaintiff. The plaintiff’s horse ate some of the leaves and was poisoned and died. The court held that: That the defendant Board was liable for bringing the poisonous yew trees onto its land. It was a non-natural use of the land to plant such poisonous trees, and the branches of the trees had ‘escaped” by protruding into the plaintiff’s land where he kept domestic animals. 2) That there was an escape of the non-natural user. “Escape” was defined in the case of READ v. LYONS (1947) AC 156 by Lord Simonds thus: Escape, for the purpose of applying the proposition in Rylands v. Fletcher means escape from a place where the defendant has occupation or control over land, to a place which is outside his occupation or control. In this case, it was held that there was no escape. In the case of POINTING v. NOAKES (1894) 2 QB. A poisonous tree was on the defendant’s land and its branches never extended over the boundary. But the plaintiff horse reached over the boundary and ate the leaves and died. The court held: That the defendant was not liable as there was no escape under the rule in Rylands v. Fletcher. 3) That damage was done to the plaintiff. 32 Law of Torts II Law 324 Finally, the plaintiff must prove that the th ing that escaped caused damage to him or his property. As a general rule, an escape under the rule Rylands v. Fletcher is not actionable per se. It is actionable only when the plaintiff proves that the escape caused him damage. Damage here may be personal injuries, damage to land, house, other properties and fittings and domestic animals. See Cambridge Water Works Co v. Eastern Leather (1994) 1 ALL E. R. 53; Transco Corp. v. South Port (2004) 2 AC 1 3.3 FUNDAMENTAL DIFFERENCES BETWEEN NUISANCE AND THE RULE IN RYLANDS V. FLETCHER The rule in Rylands v. Fletcher has some similarities with the legal principle of nuisance and if care is not taken, one can be mistaken for the other. It is possible that the same facts may give rise to liability under the torts in nuisance and the rule in Rylands v. Fletcher. However, there are some fundamental differences as follows: i. In Rylands v. Fletcher liability is confined to the accumulation of physical objects which can escape and cause damage to the plaintiff while nuisance is an interference with someone’s enjoyment of his property caused by intangible things such as noise and smell. Generally the position in Rylands V. Flecher is undergoing some changes to the extent that i t is now accepted that this is not absolute basis of distinction but in extra harzadous activities. See Transco Corp. v. South Port (supra). ii. In Rylands v. Fletcher, there must be accumulation of things which are physical in nature such as plants, liquid, gas, or rocks but in nuisance, there is no requirement for accumulation. iii. In Rylands v. Fletcher, there must be an escape of a non-natural user accumulated from the defendant’s land to a place outside the defendants 33 Law of Torts II Law 324 land but in nuisance, there is no requirement of escape because that is not necessary. iv. A plaintiff who is not an occupier of the adjoining land may not sue in Rylands v. Fletcher but in nuisance such a person could bring a suit in private nuisance. v. Liability is confined only to non-natural user under Rylands v. Fletcher but in nuisance liability is not confined only to non-natural user. 3.4 APPLICATION OF THE RULE IN NIGERIA The level of development generally coupled with the attitudes of Nigerian people to situations around based on different beliefs and capacity of community approach to life has not helped in appraising the rule in Rylands v. Fletcher in full. The hazards of pollution associated with oil exploration and the growth of manufacturing activities in the 1970s would seem to have had serious impact on the application of the rule in Rylands v. Fletcher in Nigeria. Although there have been a number of cases but there appeared to have been few cases in which the principle has been invoked as compared to other branches of the civil law in Nigeria. The first case on this principle in Nigeria is the case of UMUDJE v. SHELL B.P PET. DEV. CO. OF NIGERIA LTD (1976) 11 SC wherein the course of its oil exploration activities, the defendant respondent company diverted a natural stream, thereby denying the plaintiff of water and fish. Oil waste accumulated by the defendant also escaped and caused damage to the plaintiff’s land. The Plaintiff/Appellant sued for damages. On Appeal, the Supreme Court held: That the defendant/respondent company was liable for the escape of the crude oil waste that caused damage to the plaintiff’s land and killed fish therein. 34 Law of Torts II Law 324 However, it held that the Defendant/Respondent company was not liable for diverting the natural course of the stream, as there was no flooding of the plaintiff’s land as a result; but only a denial of the plaintiff of water and fish. The second case on the principle of law in Rylands v. Fletcher is NEPA v. AKPATA (1991) 2 NWLR pt. 175 p. 536 CA where the Plaintiff/Respondent owned two bungalows at Effurun near Warri for which he got building approval and were completed in 1977. Sometimes in 1980, the defendant/appellant NEPA completed the erection of a high tension electric transmission line from the Ogorode Power Terminal, Sapele, which passed over high above the said plaintiff’s buildings. The plaintiff sued that his buildings were rendered uninhabitable as a result of the defendant/appellant’s action. On appeal, the court of appeal held that the defendant/appellant NEPA was liable. The court per EJIWUNMI as he then was said that: While a defendant acting under a statutory power is prima facie protected … in the exercise of statutory power, he may however be liable … if it is established … that the defendant was negligent in the manner in which he acted under the statutory power given to him and damage was caused to that other as a result. The third case is that of NEPA v. ALLI (1992) 8 NWLR pt 259 pg. 279 SC. The defendant/appellant NEPA was supplying electricity to the modern sawmill and factory of the plaintiff/respondent at Ijebu Ode. Due to negligence of the appellant, its transformer at Ijebu ode went up in flames. The fire therefrom spread and destroyed the Plaintiff/Respondent’s factory. The plaintiff sued claiming damages. On appeal, the Supreme Court held that the appellant NEPA was liable in damages to the plaintiff/respondent under the rule in Rylands v. Fletcher. Nnaemeka-Agu JSC disserted partly for slightly different reasons but also gave judgment to the plaintiff on the ground of negligence. 35 Law of Torts II Law 324 The Supreme Court per OGWUEGBU J SC said: That having considered all the circumstances, I am satisfied that negligence on the part of the appellant was proved and this is a proper case where the rule in Rylands v. Fletcher should apply. See also National Oil & Chem. Marketing (2008) 7 CLRN 64. 3.5 DEFENCES There are many defences open to the defendant where there are claims for damages against him. These defences and some exceptions to the rule in Rylands v. Fletcher are creating doubt on the rationale in describing the tort in Rylands v. Fletcher as strict liability. It is , however, still strict because liability is without fault but not absolute. The defeneces which are available to the defendant in a claim under the rule in Ryland v. Fletcher include: 1) Act of God 2) Fault of the plaintiff 3) Consent of the plaintiff 4) Contributory negligence by the plaintiff 5) Act of stranger or third party 6) Statutory authority; and so forth. The proof of any of the above act and or exceptions defeats any claim for liability and damages. 3.6 DAMAGES 36 Law of Torts II Law 324 Upon a successful litigation for liability and claim for damages, the damages recoverable by a successful plaintiff in an action based on the rule in Rylands v. Fletcher include one or any combination of the following: 1) Damages for physical harm to the land. This is principally hinged on the introduction or escape of a non-natural user to the plaintiff’s land and damages result therefrom. 2) Damages to any structure on the land. 4.0 CONCLUSION Looking at the tort in Rylands v. Fletcher, it was found that the rule is not found in the statute but in common law. It is a rule of law based on strict liability. This is based on an action of the defendant that caused damage to the plaintiff. The rule in Rylands v. Fletcher has filled the lacuna in law for redress which were not obtainable in nuisance and negligence. The beauty of this rule in Rylands v. Fletcher is that public and statutory authorities are not allowed to shield themselves from liability where their legitimate activities caused damage to others. 5.0 SUMMARY This unit has been able to expose the students to the understanding of strict liability offences especially as practiced under the rule in Rylands v. Fletcher. It has opened the understanding of the students’ reasoning to the scope of the Rylands v. Fletcher, the difference(s) between the Rylands v. Fletcher and such important topics as negligence. The unit dwelt on the rule and cited cases where it was applied in Nigeria. The unit looked at various ways and means of defence and the types of damages available to the plaintiff whenever he brings a claim for damages. 37 Law of Torts II Law 324 6.0 TUTOR-MARKED ASSIGNMENT 1) In a case of claim for damages, what should the plaintiff prove for him to get relief from the court? 2) In your own words, define strict liability under the rule in Rylands v. Fletcher. 7.0 REFERENCES/FURTHER READING  Fleming, J. (1992), The Law of Tort (8th ed.) Sydney: The Law Book Company Limited.  Gardiner, D. (1991), Outline of Torts. Sydney, Butterworths.  Gillies, P. (1993), Business Law (5th ed.), Federation Press.  Holmes, D. (1984), Butterworth’s Student Companion-Torts. Sydney: Butterworths.  Latiner, P. (1995), Australian Business Law, North Ryde: CCH.  Smyth, J.E, Soberman, D.A, Telter, J.H and N.V Australian Business Law (2nd ed.) Sydney: Prentice Hall.  Kodilinye and Aluko (2005), The Nigerian Law of Torts, Revised Edition, Spectrum.  Ese Malemi (2008), Law of Tort, Princeton Publishing Co., Ikeja, Lagos. 38 Law of Torts II Law 324 MODULE I: UNIT 4: STRICT LIABILITY: LIABILITY OF ANIMALS 1.0 Introduction 2.0 Objectives 3.0 Main Contents 3.1 Definition of Animals 3.2 Classes of Animals 3.3 Livestock 3.4 Dangerous Animals 3.5 Non-Dangerous Animals 3.6 Defences 3.7 Remedies for Acts of Animals 3.8 Other Torts of Strict Liability 4.0 Conclusion 5.0 Summary 6.0 Tutor-Marked Assignment 7.0 References/Further Reading 1.0 INTRODUCTION In different parts of the world, people relate with animals differently. Some animals have been trained and made to live with people in some countries while 39 Law of Torts II Law 324 such animals remain wild and dangerous in other countries. One thing that is evident is that there is a natural relationship between humans and animals. This relationship has different purposes for human beings. Human beings in whatever society need animals for one or a combination of the following purposes: 1) For food. 2) For business e.g. for sale. 3) As a pet, companions and for assistance etc 4) For entertainment 5) For research 6) For many other uses e.g. for leather, hides and skin, export etc. 2.0 OBJECTIVES The main objective here is to expose the students to the relationship between animals and people and thereby examine the liability of an owner or keeper of animals for the acts or damages perpetrated by them. 3.0 MAIN CONTENTS 3.1 DEFINITION OF ANIMALS An animal is any creature living in land or in the sea excluding human beings. These creatures include small or big animals, fish, reptiles, crustacean or other creatures. WHO IS A KEEPER OF AN ANIMAL? 40 Law of Torts II Law 324 The keeper of an animal is the owner of the animal or his servant, agent or a proxy having the authority of the owner to keep or look after the animal. Animals are capable of being stolen. Therefore, the keeper of an animal is liable for any damage done by it (see the case of Daryan v. Njoku (1965) 2 All N.L.R. 53). The rule is that a keeper of any animal does that at his own risk. The liability of a keeper of an animal is strict. He owns a duty of care to his neighbours for any injury caused by the animal’s behaviour. 3.2 CLASSES OF ANIMALS Animals are broadly divided into two kinds: 1) Domestic animals; and 2) Wild animals However, for the purpose of tortuous liability of an owner on keeper, animals have been classified into three categories: 1) Livestock or cattle 2) Dangerous animals 3) Non-dangerous animals 3.3 LIVESTO CK The word “livestock” also commonly referred to as cattle is any animal reared or kept for food, wool, skin, used for farming works or agricultural activity. Livestock are animals that are not wild in nature. They include: (1) cattle, (2) sheep, (3) goats, (4) horses, (5) camel, (6) mules, (7) asses, (8) pigs, (9) donkey, and (10) poultry, among others but does not i nclude dogs and cats. 41 Law of Torts II Law 324 As a general rule, a keeper of livestock which strays unto another person’s land and damages any property or injures any person is liable for such damage or injury. The tort of livestock trespass also known as cattle trespass, is a common law tort. The term “livestock” in the context of tortuous liability is used to include a large number of domestic animals and animals that are not dangerous. These animals do not include dogs and cats because : 1) It is not desirable, and not very practicable to keep them in restraint like livestock; and 2) The tendency of dogs and cats for damage when they stray is often minimal, compared to bigger animals like cattle and so forth. But for dogs, some are not dangerous while others especially used as security dogs may be ferocious constituting grave danger to whoever they come in contact with if not restrained. Claims in respect of cats and dogs may be brought under scienter action, that is, a claim for a wild or dangerous animal which we shall look into in the next segment of this unit. The principle of liability for livestock trespass was clearly stated in the case of COX v. BURBRIDGE (1863) 143 ER 171 at 174 where Williams J. stated that: If I am the owner of an animal… I am bound to take care that it does not stray on to the land of my neighbour; and I am liable for trespass it may commit, and for the ordinary consequences of that trespass; whether or not the escape of the animal is due to my negligence is altogether immaterial. WHEN LIABILITY FOR LIVESTOCK MAY OCCUR Liability for livestock may occur when: 1) Prohibited livestock is brought into a country or community. 42 Law of Torts II Law 324 2) A diseased animal especially where it is likely to cause an epidemic that can threaten life and property is kept. 3) The owner or keeper failed to vaccinate the animal or give adequate medical care as prescribed by law. 4) The owner or keeper failed to restrain, transport, and or keep the animal in the manner prescribed by law. 5) The owner or keeper drives the animal intentionally on to another person’s land. 6) The animal on its own strays independently to the plaintiff’s land. 7) The owner or keeper carelessly leaves the animal(s) on the highway to the disturbance of the public. 8) It causes damage to crops. 9) The animals cause injury to another animal belonging to other persons. 10) The animal causes damage to chattel, and so forth. It should be noted that liability does not arise where an animal is properly or lawfully led on a highway and it strays onto adjacent property (see Tillet v. Ward (1882) 10 QBD 17.) In the case of CURTIS v. BETTS, the defendant was carrying his dog into the back of his Land Rover, when the plaintiff, a boy of 10 who had known the dog since it was a puppy called its name and approached it. Though the dog was on a lead held by the defendant, it leapt on the plaintiff and bit him on the face. The English Court of Appeal held: that the plaintiff was entitled to damages. 3.4 DANGEROUS ANIMALS The term “dangerous animals” or “wild animals” are animals that are likely to attack and cause severe injury, or even death to their victims or damage to property if not restrained. These animals include wild dog, wolf, baboon, 43 Law of Torts II Law 324 monkey, crocodile, snake, lion, tiger, leopard, panther and other wild cats, gorilla, chimpanzee, warthog and so forth. These animals are dangerous to their victims including human beings especially when they are fully grown. A person may not keep a wild animal unless under a licence granted by a government department. A keeper of a dangerous animal is liable for any damage caused by it. A legal action brought against a defendant who is an owner, keeper or his agent or proxy of a dangerous animal is called a scienter action. This is an action for a ferae naturae. The term farae naturae is a latin word which means “wild nature”. Therefore, a scienter action is a legal action brought on a person liable for the consequences of attack of a wild or dangerous animal. These animals by their nature are presumed to be wild and dangerous. Scienter action is of two kinds for animals as above and mansuete naturae, animals normally harmless though there may be individual cases of viciousness. The general rule under the common law is that a keeper of an animal must keep it at his peril (see Brethrens v. Bertram Mills Circus Ltd (1957) 2 QB 1). Liability for keeping an animal is strict. The defendant is liable for any damage done by the animal without having to prove that the particular animal was a savage animal. Liability lies with the keeper of the animal. It is irrelevant where the injury took place, and interest in land is not required to be able to bring the action. Denman C.J in the case of May v. Burdeth (1993 the Times, 7 December C.A) stated the law that: A person keeping a mischievous animal with knowledge of its propensities, is bound to keep it secure at his peril. PRINCIPLES OF LIABILITY UNDER THE SCIENTER ACTION 44 Law of Torts II Law 324 1) Whether an animal is dangerous or not normally dangerous is a question of law for a judge to decide relying either on judicial notice or expert evidence (se McQuaker v. Goddard (1940) I KB 687 at 700. Uzoahia v. Atu (1975) 5 ECS LR 139 at 14 1). 2) The knowledge of an animal’s propensity to attack must relate to the particular propensity that caused the damage. E.g. if a dog attacks a man, it must be shown that the dog had propensity to attack humans (see Glanville v. Sutton (1928) I KB 571 ). 3) It is not necessary to show that the animal had actually done the particular type of damage on a previous occasion. It is sufficient to prove that it had exhibited a tendency to do that kind of harm in the past (see Barnes v. Lucile (1907) 96 L.T 680, for example, in establishing a dog’s propensity to attack, it is sufficient to show that it habitually rushed out of its kennel and attempted to bite passers-by (see Worth v. Gilling (1866) L.R L.C p. 1). 4) Knowledge of an animal’s aggressive tendency is usually imputed to the defendant owner or keeper, even if such knowledge was that of someone to whom custody of the animal was temporarily given (see Baldwin v. Casella (1872) L.R Ex. 325; Daryani v. Njoku (1965) 2 ALL NLR 53 at 127). 5) It is immaterial where the animal carried out the attack. For example, the attack can take place on the plaintiff land, on the defendants land, on the land of a third party, or on the highway or other public place (see Fleming v. Orr (1857) 2 Mccq. 14 at 348). 6) Liability for damage caused by the animals attack rest on the person who keeps or controls it. However, the mere fact that an occupier has tolerated the presence of an animal on his land does not make him to be liable for its 45 Law of Torts II Law 324 mischief. For example, a father will not be liable for an injury caused by a dog owned and controlled by his under aged child (see North v. Wood (1914) I K.B 629) 3.5 NON-DANGEROUS ANIMALS A non-dangerous animal is an animal that has been tamed by man. It is an animal that is mansuetae naturae - a latin phrase meaning tame by nature. Non- dangerous animals are animals domitae naturae – latin phrase meaning – domesticated naturally. These animals include camel, dog, cat, goat, cattle, horse, sheep, pig and so forth. The owner or keeper of these animals will be liable for an act done by them if it is established that: 1) There was damage. 2) The particular animal in question had a savage disposition or propensity. 3.6 DEFENCES The defences available to a keeper for his animal and its act includes: 1) Fault of the plaintiff. 2) Contributory negligence by the complainant. 3) Consent of the injured. 4) Act of the third party. 5) Act of God, for instance, an act of nature, such as, lightening or loud thunder, if it causes an animal to fear and jump into the plaintiff or stampede into his property or an animal running away or escaping from a flood following a heavy downpour of rain, if it causes injury, may come under the plea of act of God. 3.7 REMEDIES FOR ACTS OF ANIMALS 46 Law of Torts II Law 324 The remedies for acts of animals available to a person or public authority against an animal include: 1) Chasing the animal away by a harmless means 2) Self-defence 3) Defence of property 4) Damages 5) Restitution of damaged goods or payment of its market value 6) Order of injunction; or 7) Order of abatement 8) Isolation 9) Release into the wild forest for wide life 10) Arrest, seizure or confinement in a zoo 11) Slaughter, especially where it is viscous or has disease, and 12) Repatriation to country of origin, and so forth. 3.8 OTHER TORTS OF STRICT LIABILITY An animal may commit different kinds of its tort. The acts of an animal may commonly give rise to an action in one or more areas of tort; such as: 1) Trespass to land 2) Trespass to chattel 3) Trespass to person 4) The rule in Rylands v. Fletcher 5) Nuisance 6) Negligence. 4.0 CONCLUSION 47 Law of Torts II Law 324 Liability of action of animals are borne by person(s) who acts as owner, keeper or controller. It is the duty of the owner or keeper to take care of these animals in order to avoid danger or injury from the actions of these animals. Liability for keeping animals by owners or keeper is strict because the keeper of the animal in human society does that at his own risk and peril. 5.0 SUMMARY In this unit the student ought to be able to define an animal as any creature living on land or in water excluding human beings. We have looked into classes of animals into livestock or cattle, dangerous animals and non-dangerous animals and the various liabilities for keeping these animals. This unit has also examined the principles of liability under the scienter action, defences for acts of ani mals and other torts of stri ct liabilities. 6.0 TUTOR-MARKED ASSIGNMENT Explain in details the principles of liability under the scienter action. 7.0 REFERENCES/FURTHER READING  Fleming, J. (1992), The Law of Tort (8th ed.) Sydney: The Law Book Company Limited.  Gardiner, D. (1991), Outline of Torts. Sydney, Butterworths.  Gillies, P. (1993), Business Law (5th ed.), Federation Press.  Holmes, D. (1984), Butterworth’s Student Companion-Torts. Sydney: Butterworths.  Latiner, P. (1995), Australian Business Law, North Ryde: CCH.  Smyth, J.E, Soberman, D.A, Telter, J.H and N.V Australian Business Law (2nd ed.) Sydney: Prentice Hall. 48 Law of Torts II Law 324  Kodilinye and Aluko (2005), The Nigerian Law of Torts, Revised Edition, Spectrum.  Ese Malemi (2008), Law of Tort, Princeton Publishing Co., Ikeja, Lagos. MODULE 2: VICARIOUS LIABILITY 49 Law of Torts II Law 324 UNIT 1: MASTER’S LIABILITY FOR SERVANTS TORTS 1.0 Introduction 2.0 Objectives 3.0 Main Contents 3.1 Who is a Servant? 3.2 Who is a Master? 3.3 Master’s Liability for Servant’s Tort 3.4 Remedies of an Employer against an Employee 4.0 Conclusion 5.0 Summary 6.0 Tutor-Marked Assignment 7.0 References/Further Reading 50 Law of Torts II Law 324 1.0 INTRODUCTION Vicarious liability is the liability of one person for the conduct of another person because they stand in particular relationship to one another. Vicarious liability is a liability of a superior (a master) for the conduct of a subordinate (a servant). Thus, vicarious liability is the liability of one person usually a superior for the conduct of an emp loyee in the course of employment. In this unit we shall be looking at vicarious liability of the master for the conduct of his servant. 2.0 OBJECTIVES  The objective is to let the student know who is a master in law.  The objective is for a student to also be able to determine who a servant is and for what conduct his master would be liable.  To determine the legal relationship between a master and servant. 3.0 MAIN CONTENTS 3.1 WHO IS A SERVANT? The term “servant” has no definite meaning and as such difficult to define. Generally, a servant may be described as a person who works under direct supervision and control of another person for wages in kind or in cash. According to Salmond: A servant may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and direction of his employer. A servant is a person engaged to obey his employer’s orders from time to time. An independent contractor is a person engaged to do certain work, but to exercise his own discretion as to the mode and time of doing it, he is bound by his contract, but not his 51 Law of Torts II Law 324 employer’s orders (see Salmond, J.W, 1990 Torts, 18th ed. by R.F. v. Heuston, Sweet & Maxwell, London at para 174). The above definition of a servant has been approved in a series of cases by the court over the years. The servant is a person in a contractual relationship with a master where the master usually controls the work to be done and the way the work is to be done. 3.1.1 Professional Persons, Skilled Workers and Other Workers and the Control Test Professional persons do not usually allow unnecessary imposition, interruption and interference with their professional discretion in carrying out work for their employers. Despite this failure of control of these professionals, the employer is nevertheless liable for the tort of his professional servant committed in the course of carrying out his job. For instance, a lawyer who counterclaimed in the course of his work for a clientele and loses the counterclaim will be at the peril of his client who employed him. Similarly skilled workers like drivers and others do not want interference in carrying out their jobs. Nevertheless, they are employees whose liability is borne fully by their masters or employer. This liability will also depend on some further questions. These questions include: whether the driver is driving his own car or that of the employer; whether the workman will be paid salary or a lump sum for his labour and so on and so forth. In the case of PERFORMING RIGHTS SOCIETY V. MITCHELL & BOOKER LTD (1924) I KB 762, McCarde J. in determining the control test in a master and servant relationship said that: The nature of the task undertaken, the freedom of action given, the magnitude of the contract amount, the manner 52 Law of Torts II Law 324 in which it is paid, the power of dismissal, and the circumstances under which the payment of the reward may be withheld, all these bear on the solution of the question. But it seems clear that a more guiding test must be secured… It seems reasonably clear that the final test, if there is a final test, and certainly the test to be generally applied, lies in the nature and degree of detailed control over the person alleged to be a servant. This circumstance is, of course, one only of several to be considered, but it is usually of vital importance. 3.2 WHO IS A MASTER? A master is one who has authority over another’s service. A master is a specie of a principal. All masters are principals, but all principals are not necessarily masters. A principal becomes a master only if his control of his agent’s physical conduct is sufficient (see William A. Gregory (2001), 3rd ed, The Law of Agency and Partnership 5. A person such as a referee, an auditor, an examiner or an assessor specially appointed to help a court with its proceedings may take testimony, hear and rule on discovery disputes, enter temporary orders, and handle other pre-trial matters, as well as computing interest, valuing annuities, investigating encumbrances on land titles and the like but usually with a written report to the court, who in this instance is, the attenuate master. 3.3 MASTER’S LIABILITY FOR SERVANT’S TORT The master can be liable for the servant’s service in a number of ways: a) COMMISSION OF A TORT BY THE SERVANT 53 Law of Torts II Law 324 For the servant to commit a tort for the master to be liable, the plaintiff must prove the commission of the tort by the servant. In the case of YOUNG v. BOX & CO. LTD (1951) I T.L.R at P. 793, DENNING L.J explained that: To make a master liable for the conduct of the servant, the first question is to see whether the servant is liable. If the answer is “yes”, second question is to see whether the employer must shoulder the servant’s liability. It is clear from the above that vicarious liability of the master can arise only after the servant has been found to be originally liable in his conduct complained against. In the case of an institution or an establishment like a hospital where it may be difficult to establish which of the servants is liable, the hospital authority will be vicariously liable unless it can be proved that no negligent treatment was handled by any of its staff (servants). In that case the principle of res ipsa loquitur (meaning that the fact speaks for itself) applies. (See the case of CASSIDY v. MINISTRY OF HEALTH (1951) 2 K.B 343). b) COMMISSION OF A TORT IN THE COURSE OF EMPLOYMENT A master will not be vicariously liable for the tort of the servant if it is not proved that the tort was committed within the course of his performing his job or duty. In deciding the question whether an act was committed in the course of employment, a court considers a number of relevant factors which include: 1) The express and implied authority of the servant. It is a general rule of law that a master is liable for the act done by a servant while exercising his master’s express or implied authority in the course of his work. 54 Law of Torts II Law 324 2) The manner of doing the work the servant is employed to do. The rule here is that a master or employer is liable where a servant or employee commits a tort, due to an improper, wrongful, forbidden or negligent way of performing an act that is within the scope of his employment. In the case of Popoola v. Pan African Gas Distributors (1972) ALL NLR 831, the servants of the defendant gas company were delivering gas cylinders to the plaintiff’s home. While unloading, one of the cylinders caught fire from a lighted cigarette in the hand of another servant. The resultant explosion and fire completely destroyed the plaintiff’s house. The plaintiff sued for negligence and damage. The Supreme Court held: that the servants were negligent in a duty which was within the scope of their employment and the defendant emplo yers were liable. 3) The authorized limit of time and place. A master is free to indicate the time limit or hours of work for his staff. The emplo yer is vicariously liable for torts committed within the time limits specified by the employer or master. It should be noted that when a tort is committed by a servant within a reasonable time after the close of working hours, a court can hold an employer liable for it. In Ruddiman & Co. v. Smith (1889) 60 LT 708. A clerk used a water tap about ten minutes after office hours in a washroom provided for employees and forgot to turn it off before leaving for home. The adjoining office was flooded with water as a result. The court held: that the defendant employer was vicariously liable for the damage done to the plaintiff. The use of the washroom by the clerk was incidental to his employment and the wrong act took place within a reasonable time after working office hours. See also AWACHIE v. CHIME (1990) 5 NWLR pt. 150, p. 302 C.A. 55 Law of Torts II Law 324 It should be noted also that an employee or servant who goes outside or beyond the express or implied place or course of his duty to engage in an act that is: a) For his own benefit; or b) For the benefit of a third party is on a business of his own or he is on a FROLIC of his own. (See JOEL v. MORRISON (1934) 172 ER 1338 at 1339). 4) Express prohibition by the master. A master does not escape liability by forbidding the servant from doing wrongful act, otherwise every employer or master will simply deny responsibility by prohibiting all kinds of wrong doing, negligence, mistake and so on connected with the servant’s work. Consequently, disobedience of express orders of the master does not take a servant outside the course of his employment to enable a master evade liability. However, the existence of a master’s express prohibition is a factor to be taken into account when determining the liability of a master. Prohibition by a master may be classified into two: 1) A prohibition which limits the scope of employment. This is a job specification and description limiting the scope of employment. If a servant goes outside its limit, he is on a frolic of his own and the master may be relieved of liability. 2) A prohibition limiting the manner of carrying out the performance of a job. This is a prohibition which only specifies the manner of conduct of the servant which if the servant does not comply will not relieve the master from any liability. In the case of Jarmakani Transport Ltd v. Abeke (1963) ALL NLR 180. A driver of a lorry designated for carrying only goods contrary to express 56 Law of Torts II Law 324 prohibition took some passengers on board the vehicle including the plaintiff’s “passengers not allowed” boldly written on both sides of the vehicle. He injured the plaintiff in an accident. The trial court gave judgment to the plaintiff. On further appeal, the Supreme Court reversed the judgment and held that the employer was not liable. Coker A.G.F.T said: I am clearly of the view that the trial judge overlooked the difference between an act which is an improper way of executing an authorized act and an act which is the performance of an authorized act… The learned trial judge overlooked the clear difference between a prohibition that limits or defines the mode of performance of a duty and one that limit or curtails the scope of employment of the driver. In my view, the defendant/appellants were entitled to a finding that a driver at the material time was not acting within the scope of his employment, and they were therefore not liable in damages to the plaintiff/respondent for his negligence. 3.4 REMEDIES OF AN EMPLOYER AGAINST AN EMPLOYEE Generally, remedies are safeguards to protect against any liability of the servant or employee by the master or the emp loyer. In general terms, the general rule is that the master is liable for whatever tort committed by a servant who is properly so called. The liability of the master is for the tort of the servant against third parties. The only remedy of the master against the servant is available in the internal rules existing between the master and the servant by which the master can deduct whatever liability to a third party as a result of the servant’s tort from the emoluments of the servant. Other remedies include disciplinary measures such as warning, suspension from work for a number of days or outright determination of the servant’s employment. Where personal criminal responsibility occurs, the servant can be handed over to the prosecuting authorities for prosecution. 57 Law of Torts II Law 324 58 Law of Torts II Law 324 4.0 CONCLUSION It has been seen above that whatever a person can do, he can also do it by the help of another person who he engages or employs as a servant. Consequently all the torts of the servant and the liability therefrom is borne by his master who employs him except for few cases which are rare. The master is liable because it is his business that the servant was engaged in and for the benefit of the master. 5.0 SUMMARY The unit looked into the legal person of a servant and concluded that a servant is a person who is legally attached to another person who employs and supervises his job. Whatever tort committed during the time and place when the servant carries out his job or a reasonable time thereafter or at an adjoining area, his principal, the master is liable. The liability of the master will be maintained even where the master has specifically prohibited the servant from carrying out or doing some certain things. The liability of the master will continue as far as the servant is employed by the master and for a reasonable time after that. That is why some masters will advertise to the public that a former servant is no longer in their employment and that any person who deals with him does so at his own risk. 59 Law of Torts II Law 324 6.0 TUTOR-MARKED ASSIGNMENT Explain why the master will be liable for the tort of the servant despite the fact that the master has specifically prohibited the servant from doing such an act? 7.0 REFERENCES/FURTHER READING  Fleming, J. (1992), The Law of Tort (8th ed.) Sydney: The Law Book Company Limited.  Gardiner, D. (1991), Outline of Torts. Sydney, Butterworths.  Gillies, P. (1993), Business Law (5th ed.), Federation Press.  Holmes, D. (1984), Butterworth’s Student Companion-Torts. Sydney: Butterworths.  Latiner, P. (1995), Australian Business Law, North Ryde: CCH.  Smyth, J.E, Soberman, D.A, Telter, J.H and N.V Australian Business Law (2nd ed.) Sydney: Prentice Hall.  Kodilinye and Aluko (2005), The Nigerian Law of Torts, Revised Edition, Spectrum.  Ese Malemi (2008), Law of Tort, Princeton Publishing Co., Ikeja, Lagos.  Salmond, J.W (1990), Torts, 18th ed. Sweet and Maxwell, London at para 174. 60 Law of Torts II Law 324 MODULE 2: UNIT 2: FRAUD OR THEFT OF TORT BY SERVANTS 1.0 Introduction 2.0 Objectives 3.0 Main Contents 3.1 Fraud Defined 3.2 Theft Defined 3.3 Liability of Master for Fraud and Theft of their Servants 4.0 Conclusion 5.0 Summary 6.0 Tutor-Marked Assignment 7.0 References/Further Reading 61 Law of Torts II Law 324 1.0 INTRODUCTION Fraud is a crime or tort of deceiving somebody in order to get money, goods or benefits illegally. A person who pretends to have some qualities, abilities that he does not really possess in order to deceive other people and benefit therefrom in whatever way commits a fraud. Fraud is something that is not as good, useful or helpful as people claimed them to be and for which people have parted money, goods or other valuables for. In this unit the student is being introduced to the vicarious liability of the master for the fraud or theft committed by the servant. 2.0 OBJECTIVES  The objective in this unit is to let the student understand the meaning of fraud or theft generally.  It is also to let the student understand the actual and inherent reason while the master is made to be liable for the fraud or theft of his servant especially during the course of the servant’s employment. 3.0 MAIN CONTENTS 3.1 FRAUD DEFINED Fraud is generally a tort but it may also be a crime. It is a misrepresentation made recklessly without belief in its truth to induce another person to act one way or the other and in most cases to the benefit of the person making the misrepresentation. It is a tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment. 62 Law of Torts II Law 324 It is an unconscionable dealing especially in contract law, the unfair use of the power arising out of the transaction, relative positions and resulting in an unconscionable bargain. Fraud is a tort generally but criminal fraud is the one that has been made illegal by statute and which s