PRINCIPLES OF TORT.ppt taught in first semester

PRINCIPLES OF TORT Year 1 Semester 1 Moi University School of Law

COURSE CONTENT FLB 104 Tort I is part I of a 2-part course the other being FLB 110-rendered in semester 2. FLB 104 focuses on: General principles of the law of tort Principles of liability in tort Functions of tort as a branch of law Origins of tort 19/12/2023 2

Development in England : forms of action, the writ system and emergence of negligence as a separate tort Reception of tort law in Kenya Colonialism and its influence on the future legal system Adaptation of English tort principles to the Kenyan society 19/12/2023 3

Transplantation and mutation of English law into the local framework The current juridical status of tort law in Kenya Sources of tort law Structure of the tort system in Kenya Justification for a tort system Relationship of tort and other legal obligations Place of tort in the Kenyan society Future of tort 19/12/2023 4

Objectives of the course The aims of this course are to: (a) Investigate the historical origin and development of tort. (b) Examine the fundamental principles, policies and functions of tort law; (c) Identify the basis for liability in tort; and (d) Evaluate the structure and sources of tort law in Kenya. 19/12/2023 5

Learning outcomes By the end of this course the learner should be able to a) Outline and compare the historical development of tort law in various legal traditions; b) Reconstruct the fundamental principles and functions of tort law; c) Distinguish between actionable and non-actionable conduct in tort law; d ) Assess the sources of tort law in Kenya. 19/12/2023 6

Assessment At least two (2) Continuous assessments tests (CATs) done during the semester which shall account for 30% of the marks. A final examination at the end of the semester which shall account for 70% of the marks for this course. Active participation in class and contribution to discussion/asking questions will be factored into the CATs 19/12/2023 7

Attendance Is a must! There’ll be a roll call If absence is inevitable the instructor must be informed well in advance or so soon thereafter 19/12/2023 8

Conduct of course Tort is a case-based discipline…so we shall read A LOT of cases and materials explaining those cases. This is the time to cultivate a reading habit if you have none already Exams and CATs will be based more on assigned readings and less on classroom materials albeit on questions raised during class discussions. It pays to be familiar with the materials 19/12/2023 9

Important! As a law student it is your obligation to be intellectually curious! YOU WILL NOT DIE!!!! IN FACT YOU WILL THRIVE!!! 19/12/2023 10

INTRODUCTION James Babatunde , a 1 st year law student boarded a matatu at Langas to go to Eldoret town on the morning of 1 st September 2013 The previous night it had rained heavily. The road was very slippery as there mud and water puddles on it The vehicle, christened “ Mzee ni wewe ” was a very old contraption that had been on the road for 20 years or more 19/12/2023 11

It was not well maintained and sometimes the brakes would fail It had no safety belt The tyres were worn out The vehicle was rarely serviced None of this information was known to the passengers including James On the way to town the driver, Peter Mzilikazi was speeding 19/12/2023 12

He did not see a mud puddle in the middle of the road in time. He tried to brake so as not slide over it but the brakes failed. The vehicle skidded off the road and landed in a ditch James Babatunde broke his arm and had to be hospitalized He spent KSh 50,000 in treatment It is discovered that the owner of the vehicle is one Mr. Gladness Chinotimba who lives in Eldoret 19/12/2023 13

Has James suffered any loss? What loss? Money loss? “pain loss”? Who is to blame for James’ loss? Why? What should be done about James’ loss? Who should do it? May James walk over to the driver/owner and ask that his loss be made good? 19/12/2023 14

What happens if the owner/driver fails to acknowledge responsibility? Or refuses? Should there be a rule that compels the owner/driver to make good James’ loss? What should be the basis of that rule? What should be the purpose of that rule? Who should make that rule? Who should enforce it? 19/12/2023 15

In our legal system, James would have to file a civil case in a court to get orders for compensation What is a civil case? (find out) What is a court? (find out) 19/12/2023 16

How might James Babatunde’s case play out in court? procedures Because it is a civil claim, James Babatunde becomes what is known as a plaintiff James can file a suit against both the owner and the driver on the basis of the principle known as VICARIOUS LIABILITY . It applies where a person while acting as an employee of another causes an injury to another. The employee is in law deemed an agent of the employer. 19/12/2023 17

That agency relationship means that the employer (known as the principal) will be responsible for all the losses or injury caused by the employer as long as the employee was acting within the scope of his employment. Both the owner and the driver will be sued; they become what are known as DEFENDANTS . The practice in such a case is to sue the driver as a first defendant and the owner as the second defendant although the order in which they appear does not matter. 19/12/2023 18

The plaintiff will prepare a document known as a plaint in which he will set out in summarised numbered paragraphs how the accident occurred, who was to blame, the injury/loss suffered, and the orders(prayers) he/she seeks from the court. He will the file the plaint in the appropriate court. Depending on the amount that will likely be awarded as compensation, the plaintiff will have to determine the court that has jurisdiction. 19/12/2023 19

In other words, the plaintiff must determine the court that has the jurisdiction to hear and decide the case. If the case is filed in a wrong court, it will be struck out for being incompetent and an abuse of court process. Jurisdiction in tort matters is generally determined by the amount of money involved i.e. it is a pecuniary jurisdiction issue. The higher the expected award is the higher the rank of court that will be required to deal with the case. 19/12/2023 20

NOTE : Jurisdiction may be determined otherwise than by the value involved e.g. It may be subject matter jurisdiction by which a court’s reach is limited to cases involving particular kinds of disputes only e.g. land matters, or election matters etc James or his lawyer will present the plaint to the civil registry of the court (as opposed to the criminal registry) where a file will be opened, the case will be registered and a number will be assigned. 19/12/2023 21

A copy of the plaint is left in the file at the registry, other copies (the number of which depends on the number of defendants sued) are given to back to the plaintiff together with another document known as “ SUMMONS TO ENTER APPEARANCE ” (SEA). The SEA’s function is to notify the defendant(s) that a suit has been filed against them and to require them to enter appearance and either deny or admit the claim. The plaintiff (James) or his lawyer then takes the plaint(s) to the defendant(s) together with the SEA. This step is known as SERVICE 19/12/2023 22

Each of the defendant must be served with a plaint and a SEA If the defendant denies the claim he files two documents; 1 st is the MEMORANDUM OF APPEARANCE , and 2 nd the DEFENCE . The Memorandum of Appearance indicates the defendant’s or the defendant’s advocate’s address of service for purposes of the suit The defence is a rebuttal/denial by the defendant of the plaintiff’s allegations in the plaint. 19/12/2023 23

Both the defence and the memorandum of appearance are then served on the plaintiff (who may file a reply to defence if necessary) The suit is set down for hearing on a particular date when both parties are required to show up with their witnesses and any documents they will be relying on. On the date of the hearing the plaintiff testifies (known as evidence in chief). Defendant/his lawyer asks questions (known as cross-examination) 19/12/2023 24

If plaintiff is represented by an advocate he may be asked questions to clarify any confusion raised during the cross examination (known as re-examination) The plaintiff’s witnesses then testify (following the same process) Once the plaintiff is done with his witnesses, he closes his case. The defendant then takes up the mantle and calls evidence following the same sequence and then closes. 19/12/2023 25

The plaintiff/his advocate then addresses the court (known as submission) then the defendant does the same. The court then makes its decision, known as a JUDGMENT If the plaintiff succeeds it is said that his claim has been ALLOWED . Otherwise the case is DISMISSED . 19/12/2023 26

If the plaintiff’s case has been allowed, then depending on the nature of the claim the court will give a remedy In the case of James, the remedy is DAMAGES , which simply is monetary compensation for the loss/injury occasioned by the defendant (to be discussed later but for you to find out: what is the difference between DAMAGES and DAMAGE? ) 19/12/2023 27

In the case of James, he or his lawyer will then request the defendant to pay the amount of money that has been awarded by the court within a certain period. If the defendant does not comply the plaintiff then commences what is known as EXECUTION- realisation of the money owed by the defendant through attachment and sale of the defendant’s property. 19/12/2023 28

The plaintiff obtains a WARRANT OF EXECUTION from the court which specifies the total amount the defendant is required to pay. By this time, the plaintiff is known as the JUDGMENT CREDITOR (JC), the defendant is referred to the JUDGMENT DEBTOR (JD) and the amount due is known as the JUDGMENT DEBT NOTE: it is judgment, not judgement! 19/12/2023 29

The JC instructs an auctioneer to proceed with the execution process The auctioneer identifies the JD’s property and seizes it-a process known as ATTACHMENT The auctioneer then sells the property at a public auction then transmits the proceeds of the sale to the JD after deducting related fees and costs At this point the judgment is said to have been REALIZED 19/12/2023 30

Sample plaint, memorandum of appearance and defence

The plaint Parts of a plaint

1. The Heading and Title The plaint should begin with the name of the court in which the suit is brought e.g REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S COURT AT ELDORET CIVIL SUIT NO. OF 2011

T itle contains - the name, description and place of residence of the plaintiff . - name of the defendant or defendants

2. The Body. This is the most important part of the plaint. Divided into short consecutively numbered paragraphs stating all the relevant facts related to the claim of the plaintiff Contains a narrative of how the claim arose e.g. If negligence from RTA, details about what transpired on the particular day and having relevance to the claim Particulars of the defendant’s fault/causative act Particulars of plaintiff’s injuries

Date of the cause of action Statement of jurisdiction Relief claimed/prayers (what the plaintiff wants the court to order the defendant to do in relation to the loss or injury) The plaint must be signed by the plaintiff or his/her advocate

What are the implications of the above processes in so far as tort law is concerned? Let us assume the court holds that the owner and the driver were responsible for James’ loss and ordered that they compensate him by way of damages made out as follows: Ksh 50, 000 being special damages (what are special damages); Ksh 100,000 being general damages for pain and suffering( what are general damages?) 19/12/2023 37

Why do you think the court held as it did? Why was the driver/owner held responsible? What would happen if courts/the legal system did not provide a means for remedying losses such as James’ What is the effect of the decision on the owner/driver? What is the long term effect of the court’s decision on similarly placed drivers/owners? 19/12/2023 38

NATURE AND FUNCTIONS OF TORT(S) From the above examples it is clear that a court applied some certain rules of law to hold the defendants liable for the plaintiffs’ losses These rules of law determine when it is that a person will be required to compensate another when an activity they engage in causes a loss or injury to another. 19/12/2023 39

Historically the term “tort” has been said to derive from the Latin word “ torquere ” i.e. to twist In legal terms, a tort would be an act by a person which the law has determined to be injurious to the interest of another person under circumstances which the law imposes an obligation on the former to compensate the latter for the loss occasioned . Ref: James Babatunde’s case- a wrong was committed 19/12/2023 40

Defining a tort: no satisfactory definition has ever been given. A few have been attempted: Winfield and Jolowicz , Tort , 17 th ed. Rogers (ed.) (2006) defined tortious liability as that which “arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action in unliquidated damages.” 19/12/2023 41

John G Fleming in Law of Torts 19 th ed. 1988, states that the word tort comes from the Latin “ tortus ”, meaning twisted or crooked and was used in English law as a synonym for the word “wrong”. A tort therefore is a “civil wrong other than a breach of contract, which the law will redress with damages.” 19/12/2023 42

What tort(s) law is and what it does are very controversial questions 2 broad approaches can however be discerned: (a) functionalist or instrumentalist approach and (b) Normative approach However, a third approach has arisen known as the mixed theory approach which seeks to combine the elements of both the normative and functionalist approaches 19/12/2023 43

A. The functionalist/instrumentalist approaches It’s an approach the defines tort in terms of what it does i.e. the functions Mainly represented by the economic deterrence theory postulated by Guido Calabresi Argues that when damages are imposed on injury causing acts, those who engage in those acts will order their affairs so as to avoid paying similar damages in future 19/12/2023 44

They will organise themselves so as to reduce or eliminate the risks that create those types of injuries. Therefore, tort has a deterrent effect Read: Calabresi G, “Fault, accidents and the wonderful world of Blum and Kalven ”, (1965) 75 Yale LJ 216 19/12/2023 45

Richard Wright, Introduction to cases on the law of torts 4 th ed. (1967) states: “The purpose of the law of torts is to adjust... losses and to afford compensation for injuries sustained by one person as the result of the conduct of another... The study of the law of torts is, therefore, a study of the extent to which the law will shift the losses sustained in modern society from the person affected to the shoulders of him who caused the loss.” 19/12/2023 46

See also; Guido Calabresi , The Costs of Accidents (1970) Richard A. Posner, “A Theory of Negligence” , (1972) 1 J. Legal Stud. 29 Saul Levmore ed., Foundations of Tort Law (1994) William M. Landes & Richard A. Posner, The Economic Structure of Tort Law (1987) 19/12/2023 47

According to Richard Wright the economic deterrence theory is in turn based upon the utilitarian philosophy of law espoused by Jeremy Bentham See Richard Wright, “Right, Justice, and Tort Law”, in Philosophical Foundations of Tort Law (D. Owen ed., Clarendon Press 1995). pp159-182 19/12/2023 48

The utilitarian theory postulates that the purpose of social organisation and hence law is to secure the greatest benefits for the greatest number” in society . Those values that are important for the welfare of the general population are to be encouraged or supported while those that are not should be thwarted/stopped/discouraged 19/12/2023 49

Because f ewer accidents are a great social good the economic theory sees torts as enabling the state to entice people to take measures that will reduce accidental injuries or losses. The law is thus organised to compensate for losses and to deter future conduct that may cause losses. See Jeremy Bentham, An introduction to the principles of morals and legislation , (rev. Edn 1823); 19/12/2023 50

John Stuart Mill, Utilitarianism (Oskar Piest ed., 1957)(1861) John Austin, The province of jurisprudence determined (1832) lect 2] The compensation deterrence theory has been criticised on several grounds: (a) this seems to be a public function and yet tort claims are supposed to be private : it suggests that plaintiffs do a public duty by giving the government an entry point to deal with certain social losses by encouraging people to expend resources to avoid those losses. 19/12/2023 51

However it does not explain why it is individuals who get to sue. What is the incentive for the plaintiff? What should motivate the plaintiff to spend resources to file a lawsuit? (b) the economic theory does not offer an explanation why, of two similarly placed people, only one of them is provided with the opportunity to file a suit and seek compensation . E.g. 19/12/2023 52

Picture 2 people without limbs 1. JEFF , who lost his limbs due to an accident caused by defendant’s negligence; and 2. BRAND , who was born without limbs. Both suffer similar disadvantages. Paraplegia is a social loss which, under the economic theory, it should be the law’s purpose to deal with. However, in reality, only JEFF can to sue. If tort performs a public good, BRAND too should be able to sue, but he can’t. Why? The economic theory cannot offer an explanation why this is so. 19/12/2023 53

(c) If efficient allocation of resources to safety is such an important function what happens when an individual victim chooses to not pursue the claim - it means the public function is not served and tortfeasors will have no incentive to act efficiently And yet the government cannot intervene and sue as a plaintiff because the claim is private and personal 19/12/2023 54

(d) it ignores the inherent nature of law-it assumes the law is an empty vessel, without any values . This is not true because the law has many intrinsic values that it advances. For example, a battery (intentional infliction of bodily harm) is a tort because society generally frowns upon unjustified violence by one person against another, it is deemed to be a wrong morally. 19/12/2023 55

(e) there is no way of establishing by empirical evidence how the law deters tortious conduct . Daniel Shuman, The Psychology of Deterrence in Tort Law, 42 KAN. L. REV. 115, (1993) has stated thus: “no mainstream body of research on behavior supports the conclusion that tort law accurately or precisely deters injurious behavior, and that at best, it either over or under deters.” 19/12/2023 56

Social justice theory John CP Goldberg, identifies what he calls the social justice theory by which it is deemed that tort is a device for correcting social wrongs committed by powerful members of the society . Read: John C. P. Goldberg, “Twentieth-Century Tort Theory”, (2002) 91 Geo. L.J. 513 19/12/2023 57

There are powerful forces in the society such as corporations whose economic might enables them to disregard the law and act contrary to public interest. Such corporations may be impervious to the regulatory regimes of the authorities. Through the private civil claim, tort law gives citizens a powerful tool to call such corporations to account whenever they disregard the law and the govt fails or is unable to act 19/12/2023 58

criticisms the social justice theory sounds more like a political movement than anything interested in the normative structure of the legal system. It also tends to drown out individual plaintiffs’ voices and hence deny the feeling of vindication for wrongs done by the defendant The theory overemphasises litigation and courts as the instruments of change ignoring that those instruments may not have the capacity to monitor the powerful interests 19/12/2023 59

Enterprise liability theory Sees tort law as a means for spreading out losses to a wider pool of persons which would otherwise be crushing if they were to borne by one person. It is argued that in order to deal with potentially debilitating and unavoidable losses, the law may require people involved in certain industry or enterprise to pool resources together so that such resources can be used to pay off victims of accidents that are associated with the enterprise in question 19/12/2023 60

under this theory, victims are allowed to draw from a common pool or resources contributed to by persons involved in the enterprise that occasioned the injury in question. E.g. Under the Work Injury Benefits Act , all employers in Kenya are required to obtain insurance that can then be used to pay off claims arising out of accidents in the workplace. The employees are not allowed to file suit but rather they are to seek compensation through the procedures established under the Act 19/12/2023 61

Dispute resolution theory States that the purpose of tort is to resolve disputes in the society According to Steven D. Smith, Tort law's primary function, ... is not to compensate, deter, or punish, but rather to resolve disputes arising from perceived breaches of important social norms, thereby reducing conflict and reaffirming those norms . -the author argues that every society is made up of a system of social norms i.e. “shared expectations and guidelines for belief and behavior." 19/12/2023 62

A norm is defined as “a rule or a standard that governs our conduct in the social situations in which we participate....” See S. Kiesler , Interpersonal Processes in Groups and Organizations 96 (1978) -it is these social norms that bring order because without them “social interaction would be unpredictable and chaotic.” these norms are not immutable and transgressions do occur time and again. 19/12/2023 63

When such happens, society must decide how to respond otherwise the norms would lose their validity. Society must therefore impose sanctions on those who violate the norms. There are different levels of norms- (a) low level-these are too trivial to even attract the attention of the law (b) High level-these are very serious norms which are regulated by criminal law because severe sanctions must be imposed on those who break them 19/12/2023 64

(c) Intermediate-middle level norms –these are middle level norms which though mandatory do not require severe sanctions. These are the domain of tort law e.g. the social norm to act as “a reasonable person” in human interactions so as to avoid the risk of inflicting a loss on others can only be enforced as a tort. 19/12/2023 65

So it is the violation of these intermediate norms that create disputes. It is the purpose of tort law to resolve these disputes when they arise. When tort law resolves these disputes, then other goals such as deterrence, compensation, punishment, justice etc can be achieved as a derivative of the dispute resolution function of tort law 19/12/2023 66

Public function theory This instrumentalist approach sees tort as performing a public role of ensuring that government agencies and officials or powerful business entities act lawfully . According to Allan Linden, the law of tort can be used as an “ombudsman” i.e. to ensure that government officials are accountable to the citizens. 19/12/2023 67

When citizens file suits against public officials and powerful private entities the bad publicity generated may cause them to conform to the law and avoid their excesses. Publicity may: (a) cost the defendant money e.g. When citizens boycott its products or services e.g. A bus company that is sued for accidents (b) bring the loss of prestige-people want to avoid bad publicity generally (c) in the case of a private entity, bad publicity may cause the govt to intervene in an enterprise 19/12/2023 68

Watchdog function : a tort suit can be used to challenge the decisions of very powerful entities and force them to conform with the law. For example if a medicine company produces drugs that harm its consumers, a tort suit may force them to pay compensation, change their practices to conform with the law or even sop producing the drug altogether. 19/12/2023 69

When professional groups are brought under the full glare of tort law arising out of egregious negligent conduct of their members, the group may be forced to look inwards and recommend more safe and efficient methods for their members e.g. As a result of many cases of negligence by health service providers the Medical Dentists and Practitioners Board has been forced to take more stringent measures against errant members 19/12/2023 70

Police conduct may also be supervised by tort e.g. When police arrest people without lawful cause a claim in false imprisonment can be made. If prosecution is pursued with malicious intent, a claim of malicious prosecution will be made against the police. See Allen Linden, “Tort Law as Ombudsman,” 51 CAN. B. REV. 157 (1973). http://www.cba.org/cba_barreview/Search.aspx?VolDate=03%2f01%2f1973 ; Erin Brokovich , movie 19/12/2023 71

Psychological theory Allan Linden, in Canadian Tort Law , 8 th ed. (2006): “Tort law may serve certain psychological functions. For example, the tort action, like the criminal law, may provide some appeasement to those injured by wrongful conduct ... it can be said that tort law helps to keep the peace by providing a legal method of quenching the thirst for revenge.” 19/12/2023 72

Sometimes all a plaintiff wants is an acknowledgement that a wrong has been done and an expression of remorse; i.e. an apology E.g. Sections 12 and 13 of the Defamation Act cap 36 recognise apology as a remedy/defence 19/12/2023 73

s. 12.(1) In any action for libel contained in a newspaper or other periodical publication it shall be a defence for the defendant to show that such libel was inserted in such newspaper or periodical without malice and without gross negligence, and that before the commencement of the action, or at the earliest opportunity thereafter, he inserted in the same newspaper or periodical publication a full apology for the said libel , or, if the newspaper or periodical publication in which the said libel appeared should ordinarily be published at intervals exceeding one week, had offered to publish the said apology in any newspaper or periodical publication to be selected by the plaintiff. 19/12/2023 74

Section 13 13. (1) A person (in this section referred to as the defendant) who has published words alleged to be defamatory of another person (in this section referred to as the plaintiff) may, if he claims that the words were published by him innocently in relation to the plaintiff, make an offer of amends under this section, and in any such case- 19/12/2023 75

(a) if the offer is accepted by the plaintiff and is duly performed, no proceedings for libel or slander shall be taken or continued by the plaintiff against the defendant in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication); (b) if the offer is not accepted by the plaintiff, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him against the defendant in respect of such publication, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn. 19/12/2023 76

(3) An offer of amends under this section shall be under-stood to mean an offer- (a) in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the plaintiff in respect of those words; (b) where copies of a document or record containing such words have been distributed by or with the knowledge of the defendant, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the plaintiff. 19/12/2023 77

Sometimes plaintiffs want to feel vindicated or “get even”. Tort law provides socially acceptable channels for expressing anger against defendant’s egregious conduct Supported by Scott Hershovitz in his article “What does tort law do? What can it do? published in VAL. U. L. REV . 47, NO. 1 (2012): 99-118 19/12/2023 78

He argues that tort law is shaped by the desire to “get even”-because there is no way a victim can be put back to the position they were in absent the wrong, what remains is the desire to get even/revenge against the wrongdoer . 19/12/2023 79

In early systems of justice, a victim had the right to effect revenge against a wrong doer (an eye for an eye) so as to get even. However because revenge was an inefficient way of getting even (think the violence that might arise) it became necessary to develop institutions that would mediate between the victim and wrongdoer to avoid arbitrariness e.g. courts 19/12/2023 80

Thus while a tort suit is not an act of revenge “… it aims to do the same thing people taking revenge aim to do. That is, a tort suit aims to render wrongdoer and victim even in respect of the wrong .” Glanville Williams, “The Aims of the Law of Tort”, (1951) Current Legal Problems 137 has called it “appeasement”. 19/12/2023 81

derives from primitive law by which a victims quest for vengeance was “bought off by compensation”, “which gives him satisfaction in two ways; he is comforted to receive the money himself, and he is pleased that the aggressor is discomfited by being made to pay. By this means, the victim is induced to “let off steam” “within the law rather than outside it.” 19/12/2023 82

How valid is this theory? Explain James’ case using this theory. Does it fit? 19/12/2023 83

B. The Normative Approach Sees tort in terms of rights/norms . Argues that there is internal content of tort that consists of rights. A tort is committed when these rights are infringed which equals the commission of a wrong; this must be made right 19/12/2023 84

The purpose of the law of tort is to compel the defendant to restore that which he has taken away from the plaintiff by committing the wrong. In other words, the defendant must be made to do justice by compensating the plaintiff Normative theories are therefore based on the principle of corrective justice . 19/12/2023 85

The normative approach grew out of a frustration with the instrumentalist theory E.g. Ernest Weinrib has argued that what tort law does is one thing, what it is, is another thing. Thus the law of tort cannot be a tool or a means to an end because it is an end in itself: “ Explaining love in terms of ulterior ends is necessarily a mistake, because a loving relationship has no ulterior end. Love is its own end. In that respect, tort law is just like love .” 19/12/2023 86

The law of tort is necessarily infused with moral values: a defendant is not deemed to have committed one unless it can be shown that he acted in a blameworthy manner. Accordingly : “ Tort law exists because it provides the forum for attaining corrective justice ; which should be the only basis upon which a defendant should account to the plaintiff for losses occasioned by his acts, and nothing more” 19/12/2023 87

A tort is always a wrong against a plaintiff. When a defendant commits a tort, he takes something away from the plaintiff. The law of tort will therefore require him to restore the equilibrium that had existed before the tort. Therefore the purpose of tort law is to restore the plaintiff to the position he was before the tort was committed . 19/12/2023 88

Richard Wright in his article , “Right, Justice, and Tort Law”, in Philosophical Foundations of Tort Law (D. Owen ed., Clarendon Press 1995). pp159-182 also supports the corrective theory of tort He criticises the economic deterrence theory on the ground that it ignores the inherent nature of a human being because it sees man as a mere a tool for achieving certain ends. 19/12/2023 89

He argues that insofar as tort is concerned, where an individual causes harm to another, he infringes that other’s rights , he acts in a blameworthy manner and hence assumes the responsibility to make good the loss suffered by that other ( corrective justice) . 19/12/2023 90

Civil recourse theory Postulated by John C.P. Goldberg & Benjamin C. Zipursky , in their article: “Torts as Wrongs”. They argue tort law is about wrongs and state that: “ The law of torts is a law of wrongs AND RECOURSE -what Blackstone called “private wrongs.” Takes Wright’s ideas further-must be a wrong recognised as such under law 19/12/2023 91

While many acts result in harm to others, they are not necessarily torts. A tort is only so recognised when its commission harms an interest that is legally protected . It is when that interest is secured by law that the state is justified to set up a system that will enable victims seek a remedy. (i.e. A system of civil recourse) 19/12/2023 92

In other words, only when conduct is deemed as a wrong for which the state provides a system of resolution that a tort can be said to exist . 19/12/2023 93

Mixed theories The American Bar Association Report, has called for a “pluralistic” approach to tort law : “the most sensible approach is to regard tort law from a pluralistic viewpoint , viewing it as a multifaceted response a very varied set of problems.” see The American Bar Association Report, Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law (1984) 19/12/2023 94

Justice Linden, in response to Weinrib’s criticism (above) has stated, in Canadian Tort Law , 8th ed. (2006), p3 as follows: “It is true that tort law, like love, is valuable for its own sake, but there are many aspects of love and many facets of tort law. Professor Weinrib, by maintaining that there are no pragmatic ends of love and of torts, undervalues them both. There is more to love and to torts than just their intrinsic unpolluted merit, however splendid that may be … 19/12/2023 95

Neither should be sold short. True, the greatest thing about love is love itself, but love also inspires song, animates poetry, builds new families, encourages new enterprises etc. Love can take credit for some of the good things that happen in our world, even though lovers may not start out with these effects in mind... 19/12/2023 96

Similarly, tort law may achieve beneficial effects, without necessarily setting out to do so, things like compensation, deterrence and education. Thus whether by design or not, tort law, like love, is valuable not only intrinsically but also for its other contributions to a better world .” 19/12/2023 97

According to Glanville Williams, “The Aims of the Law of Tort”, (1951) Current Legal Problems 137, an action for damages in tort has multifaceted roles such as include; appeasement, justice, deterrence and compensation. 19/12/2023 98

Prof Gary Schwartz, “Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice”, (1996) 75 Tex. L. Rev. 1801 has likewise developed what he calls a mixed theory of torts: tort can meet both deterrent and corrective justice ideals as certain torts are best explained as deterrent and others as advancing corrective justice. 19/12/2023 99

When tort law is considered in both its deterrent and justice character, all the benefits of both these approaches can be taken advantage of 19/12/2023 100

John C. P. Goldberg, “Twentieth-Century Tort Theory”, (2002) 91 Geo. L.J. 513 Identifies 5 tort theories: compensation-deterrence theory, enterprise liability theory, economic deterrence theory, social justice theory, and individual justice theory all these theories can be used to explain various aspects of tort law depending on the claim that is being made . 19/12/2023 101

HISTORICAL DEVELOPMENT

England tort law is said to be older than criminal law as it developed at a time when the states were not centrally organised to be able to exercise any effective policing power over all citizens Enabled victims to seek redress against wrongdoers through the help of the state-an obligation of the state arising through the social contract theory 19/12/2023 103

Theory of the social contract is attributed to a philosopher known Jean Jacques Rousseau It states that society is formed when each individual member thereof gives up their individual rights to an institution that they then allow to exercise governing powers over them. In return this institution, known as Government, must protect them communally 19/12/2023 104

The Government must also provide a means of redress-through law and legal institutions-when certain of the individual’s rights or interests are violated by others. Tort law one of those means by which the Government fulfils its obligations under the social contract theory. 19/12/2023 105

Forms of action In the early stages of development of the common law in England a claimant was required to commence a case through special procedures known as forms of action were pre-prepared documents known as writs which set out standard allegations which the defendant would be required to answer 19/12/2023 106

There were specific writs for specific claims e.g. writ of debt, writ of ejectment , writ of the covenant, writ of trespass Writs had disadvantages-the system was very rigid since a claim had to fall within an already existing writ. If no writ existed then there was no claim and the plaintiff lost. 19/12/2023 107

To avoid this difficulty most claims were based on the writ of trespass because it was flexible enough to accommodate them Its disadvantage was-a plaintiff had to allege and prove that the defendant had used “force of arms” (referred to as “ vi et armis ” plea) 19/12/2023 108

There had to have been contact between the pl and or pl’s property and def otherwise the claim would fail Courts devised a new claim know as “trespass on the case” -this was a special category of writ that allowed the courts to expand the existing procedures to accommodate many claims where the pl had suffered loss at the hands of the def 19/12/2023 109

It is trespass on the case that was then developed over time to become tort law Thus we had many claims developing such as assault, battery, false imprisonment, nuisance, trespass to land, conversion, strict liability (the rule in Rylands v Fletcher ), etc Many of these claims were based on intentional or reckless interference of the plaintiff by the defendant 19/12/2023 110

The most important tort: negligence The tort of negligence is the one that sets a general rule of liability to govern human conduct Every person owes a duty to ensure that the acts or omissions he/she engages in must not cause injury or loss to another person who is reasonably likely to be affected by those actions/omissions 19/12/2023 111

This tort was devised in the case of Donoghue v Stevenson [1932] AC 562 Why did negligence develop as a tort and what does this say about the nature of tort law? 19/12/2023 112

Industrial revolution and the associated risks e.g. motorized transport The rise of big companies with huge incomes The rise of insurance-a mechanism for loss adjustment hence guarding against the risk of total loss 19/12/2023 113

Developments since Donoghue Since the Donoghue case, Tort law has been expanding rather than diminishing Claims that could not otherwise be entertained became recognized by the courts 19/12/2023 114

Examples: up until 1934, it was not possible to commence or maintain a cause of action against a person who died The doctrine of contributory negligence was modified in 1945 to make a partial defence only 19/12/2023 115

Vicarious liability was introduced in 1948 Spousal immunity was removed in 1962 Etc ad nauseum ad infinitum NB: these developments were driven both by the parliament in the UK as well their courts 19/12/2023 116

The Kenyan Perspective Indigenous pre-colonial rules and customs might have governed certain areas of liability albeit without a serious distinction between what was criminal and what was civil-there was an intertwining of the rules Therefore colonialism found natives using their own systems of law-were there elements of tort in indigenous systems of law? 19/12/2023 117

Yes there were They were not however understood as torts and there wasn’t even a distinction between civil and criminal wrongs E.g. disputes over land boundaries were no more than disputes about trespass. Among the Kamba, if two people claimed the same land the one dispute would be resolved through oathing -known as “ kithitu ”-the disputants would take an oath and the one who lied would die or suffer some misfortune 19/12/2023 118

An assault among the Kamba would attract compensation by the person causing the injury to the person injured “By Kamba custom, a minor matter, such as a blow causing no permanent ill-effects but perhaps pain and swelling, is dealt with by sending an elder to call the offender, together with an elder of his own family, who arrive bringing a goat. If the two elders decide that the responsibility is truly that man’s, but that the hurt is not of the serious kind…the goat is slaughtered and the matter ends there…” DJ Penwill , Kamba customary law, 1951 p85 19/12/2023 119

For more serious injuries there was a fixed scale of compensation: A finger (any finger)-a cow, a bull and a goat Two fingers-two cows, a bull and a goat Four fingers-four cows, a bull and a goat One hand or arm-five cows, a bull and a goat One leg-five cows, a bull and a goat The big toe-one cow, a bull and a goat etc 19/12/2023 120

Compensation was not based on any principle of “negligence”. Thus according Penwill , “There [was] no difference if the injury [was] inflicted deliberately or it [was] accidental; the payment is the same.” “if a man sends another on an errand or journey, and harm befalls him on the way, the sender is to some degree held responsible, since the unfortunate was travelling on his business.” 19/12/2023 121

“Should a man be driving a cow or a bull to some place for the owner, and be kicked or butted and so injured, he [would] be given the animal as compensation- “ ng’ombe ya kithuki ” If a man [walked] by accident into a trap or a snare set by another, even on the settler’s own land, the latter [was] responsible for any injuries he may receive, even though the injured man is an uninvited trespasser 19/12/2023 122

Destruction of crops by domestic animals at night was considered an “act of God” for which no compensation was available-it being assumed to be God’s will If destruction occurred during the day there would be compensation because it was expected that a person should look after his animals and see that they were kept off other people’s property, something that could be done well during the day 19/12/2023 123

Compensation would available for night damage if the destruction was repeated-on the ground that the man was not even trying to protect his neighbour’s property constructing an adequate shed for his animals The deliberate damage to property was equated to theft Accidental damage however attracted compensation e.g. if a person started a fire which got out of control and destroyed his neighbour’s property he was liable for the full value of the destroyed property 19/12/2023 124

If a man by his cultivation caused a fall of earth or started a landslide he was responsible for any loss or injury which might have resulted If a man set a trap, even on his own land, he would be responsible for injuries which cattle or goats may suffer from it, as he was for humans 19/12/2023 125

The colonial legal system A study of the process of development of the legal system indicates an initial dual pronged approach - where both indigenous law and English law applied at the same time. Eventually the system of law was merged with emphasis being laid on the English system 19/12/2023 126

colonial influence over the area now known as Kenya begun rather graduall y-it was initially fronted by Imperial British East Africa Company (IBEAC) which was granted a Royal Charter to exploit the territory on behalf of the Queen of England 19/12/2023 127

IBEAC obtained certain concessionary rights over rights the 10 mile Coastal strip which was subject to the Sultan of Zanzibar the law that applied to IBEAC employees was English law 19/12/2023 128

IBEAC had no control over the interior hence indigenous practices continued to apply As trade within the East African region intensified, more British subjects came to the territory necessitating the establishment of a system of courts to deal with disputes amongst them In 1895 the area was declared as a protectorate-the British East Africa Protectorate which means that formal power could be exercised over the region by Britain 19/12/2023 129

A formal court system was established in 1897-it was a dual court system that was set up on the one hand through the East Africa Order-in-Council of 1897 establishing Her Majesty’s Court for East Africa with jurisdiction over British subjects and protected persons; and on the other hand through the Native Court Regulations of 1897 establishing a court system with jurisdiction over natives- a dual court system 19/12/2023 130

While Her Majesty’s Court for East Africa applied English law , the Native Courts were required to apply native laws and customs as long as they were not contrary to natural justice and morality. They also relied on local dispute resolution institutions such as chiefs and elders 19/12/2023 131

thereafter there was a move to shun native law and institutions and apply English law even to natives E.g. the 1902 East Africa Order in Council passed to replace the 1897 OIC established a series of courts which were expressed to have jurisdiction over disputes involving natives. s 20 of East Africa Native Courts Amendment Ordinance of 1902 provided as follows: 19/12/2023 132

“In all cases civil and criminal to which natives are parties, every court (a) shall be guided by native law so far as it is applicable and is not repugnant to justice and morality or inconsistent with any OIC or Ordinance: and (b) shall decide all such cases according to substantial justice without due regard to technicalities of procedure and without undue delay.” Colonial courts now had jurisdiction over the entire territory-including natives 19/12/2023 133

The role of African laws was reduced as they were either placed under the control of a colonial judicial official or eliminated altogether-English law was to apply primarily The Commissioner of the Protectorate was given power to appoint headmen to preside over petty cases . These headmen were not traditional office holders but persons chosen by the colonial administration. The jurisdiction of native tribunals and the influence of African conceptions of law and justice were thus significantly curtailed. 19/12/2023 134

This system was concretized by the Courts Ordinance of 1907 which established subordinate courts presided over by judicial officials appointed by the colonial authorities exercising various forms of jurisdiction over natives. 19/12/2023 135

Native law and custom was not applicable directly but had to be ascertained through the use of assessors . READ: Kimani v Gikanga [1965] EA 735 (extracted in WBH pp452-462) The main source of law became written law and English common law principles. Customary law applied only in restricted circumstances. 19/12/2023 136

from then onwards there was a systematic dismantling of African laws and institutions in the legal system. The intention was to replace them entirely with a British system of justice based on British principles of law. Thus it was that the system of law and justice was merged into one premised on English law. 19/12/2023 137

the colonial courts that emerged exercised a tripartite jurisdiction over Africans, Asians and Europeans. The practice in these courts was based on Indian codes of procedure and English rules where applicable. The reception clause imposed a statutory obligation on the courts to apply English law and thus English cases were referred to and followed. 19/12/2023 138

There was a rigid adherence to English precedents especially in the 1930s when the judiciary was made up of non-indigenous colonial judges. The appellate courts, i.e. the EACA and the Judicial Committee of the Privy Council ensured that the courts strictly followed precedents as established by English courts. Thus it was that the English law of torts was received in Kenya on 12 th August 1897 vide the East African Order in Council of 1897 (as amended thereafter) 19/12/2023 139

The OIC required the High court to apply, with effect from the date of reception, “the substance of the common law, the doctrines of equity and the statutes of general application in force in England” as of the date of reception. This application was however subject to certain qualifications e.g. where the parties to a case were natives, the courts were to be “guided” by customary law provided it was not repugnant to justice and morality or good conscience or inconsistent with the general law in force in the territory. (the repugnancy clause) 19/12/2023 140

2ndly, the common law, the doctrines of equity and the statutes of general application would apply so far as local circumstances permitted and subject to such qualifications as local circumstances may render necessary . The Kenya Order-in-Council of 1963 which granted internal self-rule established a Supreme Court with unlimited civil and criminal jurisdiction over all persons and things. 19/12/2023 141

After independence the 1963 Order-in-Council was superseded by the Judicature Act , Cap 8 passed in 1967. Appeals to the Privy Council were abolished. The Supreme Court was renamed the High Court. The Judicature Act applies till now 19/12/2023 142

Section 3(1) of the Judicature Act provides that: 3. (1) The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with-(a) the Constitution; (b) subject thereto, all other written laws including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act* modified in accordance with Part II of that Schedule; 19/12/2023 143

(c) subject thereto and so far as those written laws do not extend or apply , the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897 , and the procedure and practice observed in courts of justice in England at that date; … ( this is the reception clause ) 19/12/2023 144

but the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary. 19/12/2023 145

(2) The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay. 19/12/2023 146

How have courts interpreted jurisdiction under s 3(1)? Generally Kenyan courts were not keen to develop a species of law suited for local circumstances as the drafters of the reception clause had envisaged. They consistently applied English common law or its variants. 19/12/2023 147

In the case of Kiriri Cotton Co. v. Dewani [1958] EA 239 Sir Kenneth O’Connor restated the bindingness of English law as at that time: “…established decisions on the common law or doctrines of equity of the superior courts in England, given before the date of reception of the common law and doctrines of equity into the relevant colony or protectorate within the court’s jurisdiction are binding on this court as well as on the Supreme Court or High Court of that territory.” 19/12/2023 148

Following independence and abolition of appeals to the Privy Council, English decisions were considered no longer binding. They were persuasive only. However the trend was that every so often, Kenya courts would apply English decisions especially where they modified previous common law principles that had been held applicable pursuant to the reception clause. 19/12/2023 149

E.g. Hamilton J held in the case of Besson v. Allibhoy [1906] KLR 322 that where there was no provision of written law covering a particular issue one had to resort to the common law of England. In general many judges simply applied the common law developed in England even after the reception date without regard to the provisions of the law. 19/12/2023 150

E.g. In the case of Patel and Another v. The Uganda Commercial Co. Ltd 18 EACA 27 (1951) the Court of Appeal applied the principle of contributory negligence as declared in an English decision of 1933 to hold that the contributory negligence of a parent or a guardian does not preclude the right of an the infant to recover damages. 19/12/2023 151

The law prior to 1897 was that such a child would not recover as the negligence of the parent or guardian could be attributed to it. While the court took account of the development in English law, it did so without considering the ramifications of the reception clause which limited it to the pre-1897 position. Thus courts determined cases in reliance on common law without regard to the reception clause. 19/12/2023 152

Further the practice has been that in very many cases Kenyan courts refer to English textbooks on tort -they often cite the current editions of the books without regard to the reception date. Examples include Winfield and Jolowizc on Tort, Salmond and Heuston on Tort, Clerk and Lindsell on Torts, Halsbury’s Laws of England etc 19/12/2023 153

Of what relevance is customary law? the application of customary law of tort is minimal to non-existent for several reasons (1) judges presiding over matters during colonialism and after independence were European and had a hostile attitude toward customary law because it never comported with their notions of law and justice. 19/12/2023 154

E.g. in Rex v. Amkeyo 7 EALR 14 (1917) Hamilton CJ equated an African marriage to “wife purchase” because it did not correspond to the monogamous unions understood in the Western civilizations. (2) The repugnancy clause was also frequently applied to block the use of customary law: notions of justice and morality applied were English, not local. 19/12/2023 155

E.g. in Gwao bin Kilimo v Kisunda bin Ifuti 1 Tanganyika L. Rep. 403 (1938) Wilson J., stated that: “I have no doubt whatever that the only standard of justice and morality which a British court in East Africa can apply is its own British standard.” 19/12/2023 156

2) the system of law that was established by the colonial authorities and developed by the independence govt looked down upon customary law as a source of law Courts have also failed to develop a system of law that incorporates local values and outlooks 19/12/2023 157

Example of how Kenyan courts have shunned their responsibility to develop local law Nation Newspapers Limited v Chesire [1984] KLR 156 The case involved defamation by innuendo. The plaintiff was the wife of a prominent politician. The defendant published a photograph of a woman presenting a trophy to a winner of a golf tournament. 19/12/2023 158

The caption accompanying the picture had suggested that the woman was the wife of the politician, the plaintiff’s husband. 19/12/2023 159

The plaintiff relied on the doctrine of innuendo to found a cause of action on defamation, alleging that the picture and the accompanying words had the effect of suggesting that the plaintiff’s husband, despite having been married to the plaintiff, was in another marital relationship with the woman in the picture. 19/12/2023 160

The effect of this was to defame the plaintiff in an oblique way because it meant, as alleged by the plaintiff, that she, the plaintiff, was actually not married to the politician, that therefore, her claim to being married to the politician was false, that she was living in an immoral liaison with the person she claimed to be her husband and that in effect her character had been lowered in the eyes of right thinking members of the society. 19/12/2023 161

The High Court, wearing the garb of a court in the UK relied entirely on the case of defamation by innuendo largely Cassidy v Daily Mirror Newspapers Ltd whose facts were similar to the case before the court. 19/12/2023 162

In the Cassidy case, the newspaper had published a picture of a man and a lady accompanied with a caption indicating that the man and the lady were engaged to marry. The man’s wife sought damages for on grounds similar to those in the Kenyan case. 19/12/2023 163

The English CA held the defendant liable on the ground that those who knew the man’s wife would think that the wife had not been married to the man and was thus living in immoral cohabitation with the man Was the Kenyan court right in relying on the English decision in entirety? 19/12/2023 164

Distinguishing features of the Kenyan case First, the plaintiff had been separated from her husband for 7 years, had dropped her husband’s name and resumed her maiden name and had in fact filed divorce proceedings. Secondly, and perhaps more importantly, in the continuum of these events, the plaintiff’s husband had openly cohabited with several other women with whom he had in fact had a number of children! 19/12/2023 165

Fundamentally, however, polygamy was (and still is) a commonly practiced culture in Africa and indeed in Kenya. In fact, it was recognised that in Kenya, all marriages, regardless of the method of celebration were potentially polygamous. It was, indeed still is, commonplace for a Kenyan man, having celebrated a statutory marriage would celebrate another marriage under customary law with the earlier one not having been dissolved. 19/12/2023 166

Cassidy was thus distinct from Chesire in this regard. The court was alive to these peculiarities of the case but proceeded to apply the Cassidy case (on the ground of stare decisis ) The circumstances of the local inhabitants required that the High Court should have strictly adhered to the edict of section 3(1)(c) of the Judicature Act to apply the English common law “so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary. 19/12/2023 167

TORT AND OTHER LEGAL OBLIGATIONS

Tort and Crime Similarities They are both rules of conduct which prohibit harms against others They may be based on morals e.g. negligence is based on the moral principle that we should avoid harming others, so too is criminal law. E.g. theft, a crime, is also an immoral act 19/12/2023 169

Differences Actors ; i.e., who does what? Torts are private claims, crimes are public. What does this mean? Who are the parties ? Tort: plaintiff versus defendant. Crime: Republic/State versus the accused. Standard of proof; burden of proof Standard : Crimes: beyond reasonable doubt Torts: on balance of probabilities/preponderance of evidence 19/12/2023 170

Burden of proof Crimes: always on the prosecution; see the case of Bhatt v R (1957) E.A. 332; Woolmington v DPP [1935] AC 462 Tort: shifts from plaintiff to defendant or vice versa depending the who is making what allegations 19/12/2023 171

Procedures Crimes; prosecuted. Initiated by a complaint then a charge sheet. A prosecutor (a state official moves the case along Torts; involve a suit initiated by filing a plaint; a plaintiff moves the case along Limitation periods : torts are time bound (3 years limitation is applicable) There is generally no limitation on when a criminal case may be prosecuted 19/12/2023 172

Purpose ; crimes lead to punishment; torts lead to compensation. How true is this? consider punitive damages which are deliberately intended to punish a tortfeasor if deemed necessary. 19/12/2023 173

Tort and contract CONTRACT TORT Creation of liability Voluntarily by the parties Involuntary-Imposed by law Limitation of action 6 years generally 3 years generally 19/12/2023 174

CONTRACT TORT Immediate purpose To put the plaintiff where he/she would have been if the contract had been fulfilled (forward looking/prospective) To put the plaintiff where he would have been if the tort had not been committed (backward looking, hence retrospective) 19/12/2023 175

CONTRACT TORT Remedies Mainly specific performance or damages Much broader including damages, injunction. May include exemplary damages, meant to punish the defendant 19/12/2023 176

CONTRACT TORT Third parties 3 rd parties acquire no rights nor assume any obligation if they were not parties to the contract (privity of contract) Privity is irrelevant 19/12/2023 177

CONTRACT TORT Nature of breach Breach of contract is a violation of a right in personam ie , a right specific to a person and with which the whole world is not concerned Violation of a right in rem , ie a right available against the world at large though vested in a determinate person 19/12/2023 178

CONTRACT TORT Motive Generally immaterial Usually relevant, especially in intentional torts 19/12/2023 179

THE PRINCIPLES OF TORT LIABILITY

Liability in tort may be based on Negligence; or Intention; or Strict liability (no fault) 19/12/2023 181

Negligence Arises where a defendant is expected to conduct him/herself in a particular manner but fails to do so-i.e. where def is under a tortious duty to act in a certain manner in relation to the plaintiff and omits to do so 19/12/2023 182

Liability arises when 3 conditions are established (1) the def is under a duty to take care to ensure that his/her activities do not cause injury or loss to the plaintiff; (2) def breaches that duty; and (3) plaintiff suffers loss/injury 19/12/2023 183

Established in Donoghue v Stevenson case Here the plaintiff’s friend treated her to a bottle of ginger beer at a café. The beer was packaged in an opaque bottle hence it was impossible to see the contents. Plaintiff partook of some of the beer but as she was pouring more into her glass the partly decomposed remains of a snail came out of the bottle. She alleged that she suffered nervous shock and severe gastroenteritis as a result. 19/12/2023 184

Issue The question is whether the manufacturer of an article of drink sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defects likely to cause injury to health. 19/12/2023 185

holding The defendant owed a duty of care to plaintiff to ensure that the contents of the ginger beer were such that they did not pose a risk of injury to the plaintiff consumer. Reading assignment: Kenya Breweries Ltd v Odoyo Civil Appeal No. 127 of 2007 19/12/2023 186

Intention Here, there needs to be a finding that the def acted deliberately with a view to infringing on the pl’s protected interest e.g. assault, battery, false imprisonment, trespass to land, trespass to chattels etc 19/12/2023 187

Intention is relevant in torts derived from the writ of trespass. Here intention means where a person desires to produce a result forbidden by law and where they foresee it and carry on regardless of the consequences. 19/12/2023 188

The defendant must intend to do the act, but need not intend harm : for example, if a person has a fit and strikes another person this would not amount to trespass to the person. But a practical joker who intends to frighten a person but ends up causing them severe nervous shock will be liable. 19/12/2023 189

Case: Makube v Nyamuro [1983] eKLR The appellant a schoolboy aged 14 claimed damages against his teacher for injury allegedly inflicted by the latter while in the course of imposing corporal punishment. The defendant, had used a rope which hit the plaintiff in the eye. The injury resulted in an eventual loss of the eye. The defendant had suggested that the injury was accidental and that therefore neither assault nor battery could be proved. The court found that the defendant injured the plaintiff while administering corporal punishment and that the injury was so intentionally inflicted. 19/12/2023 190

per Hancox J ( Obiter dictum )-defining trespass to the person While assault is frequently the generic term used to cover both assault and battery, they are two distinct torts, the one being an overt act indicating an immediate intention to commit a battery, and a battery being the direct application of force to the person of another without lawful justification; and that includes intentionally to bring any material object into contact with another person. Both constitute that species of trespass known as trespass to the person. See Hancox J p9 (5-15). 19/12/2023 191

Trespass to land: Wairimu v Muchiri High Court Civil Appeal No 1324 of 2000 (Mombasa High Court) (Unreported) The plaintiff sued the defendant for damages in trespass. The defendant had occupied the plaintiff’s land without plaintiff’s permission. Pl had possessory right over the land. Held: defendant had trespassed into pl’s land and was liable to be evicted therefrom . The court stated: “In law trespass to land is an entry in the possession of the plaintiff or remaining upon plaintiff’s land without lawful justification.” 19/12/2023 192

Also: M’Mukanya v M’Mbijiwe [1984] KLR 761 where Kneller J when dealing with the issue of trespass to land stated that: “in a tort of trespass to land the plaintiff must prove that the defendant entered on the property when it was in his possession.” 19/12/2023 193

Another example: defamation Defined as: the publication of a false and defamatory information about a person without lawful justification Requires action by the defendant either as 1) Libel -the defamatory statement is made in some permanent and visible form e.g. writing, printing, pictures or effigies; Or 2) Slander -the statement is made in spoken words or in some other transient form whether visible or audible e.g. gestures. 19/12/2023 194

Other examples False imprisonment Malicious prosecution Look up 1. definitions 2. Cases 19/12/2023 195

Strict liability (liability without fault) In torts falling in this category the def is held liable merely for doing the thing that is considered under law to be injurious without necessarily being at fault. There is no need to prove that the def had intended the injury/loss or was negligent E.g. Rylands v Fletcher (1866) LR 1 Exch 265 19/12/2023 196

D, needing water storage, contracted an independent contractor to construct a reservoir on their land. Unknown to them there were some disused mine shafts under this land. Water burst into the shafts and flooded P’s underground mines in adjacent land. HELD: D was liable even though the construction was the act of an independent contractor 19/12/2023 197

Blackburn J stated what came to be known as the Rule in Rylands v Fletcher that: “We think that the true rule of law is, that the person who for his own purposes brings on his lands 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.” 19/12/2023 198

In the area of industrial safety, the law has passed legislation which imposes strict as opposed to fault-based liability on an employer, see eg the Occupational Safety and Health Act , 2007 ; case of Kennedy Mutinda Nzoka v Basco Product (Kenya) Limited [2013] eKLR (a statutory obligation to ensure safety at the workplace is a strict liability obligation) 19/12/2023 199

Simba Posho Mills Ltd v. Fred Machira Onguti , (similar to the above case) where the Respondents suffered crushed fingers while operating a machine at work, because the Appellant failed to provide a safe working environment It was held that: 19/12/2023 200

“the Appellant was under a statutory obligation to provide the Respondents with a safe working environment which included not exposing him to tasks which could result in his sustaining injury. The liability imposed upon the Appellant is statutory. The breach of the statutory liability means that the Appellant was strictly liable for any injury its employee sustains in the course of his employment.” 19/12/2023 201

Is tort liability general or particular? i.e. Is the basis of tort just one rule of general liability which covers ALL SITUATIONS current and future? Or, Is the law of tort made up of many specific and separate torts each of which covers only PARTICULAR SITUATIONS ? In other words, do we speak of A LAW OF TORT or A LAW OF TORTS ? 19/12/2023 202

Winfield has captured these extremes as follows: “Is the English law of torts based on the principle that (1) all injuries done to another person are torts, unless there is some justification recognized by the law ; or on the principle that (2) there is a definite number of torts outside which liability in tort does not exist... 19/12/2023 203

... According to the first theory , if I injure my neighbour he can sue me in tort whether the wrong happens to have a particular name like, assault, battery, deceit, slander, or whether it has no special title at all. 19/12/2023 204

According to the second theory , I can injure my neighbour as much as I like, without fear of his suing me in tort, provided my conduct does not fall under the rubric, assault, battery, deceit, slander, and so forth..... 19/12/2023 205

...If the first principle is the correct one, the courts have full power to create new torts , or (more consistently with judicial caution) to extend the law of torts without any baptismal ceremony for each extension. 19/12/2023 206

But the second principle presents us with a row of pigeonholes , each labelled with the name of a particular tort, and if an injury cannot be fitted into one of these, whatever the plaintiff's remedy may be, he has none in tort.” 19/12/2023 207

Tort liability as general Under this theory courts should provide a remedy for any loss or injury as long as it is not justifiable. So it matters not that a tort has not been recognised under law; as long as action is unjustifiable, there ought to be a remedy Derived from the principle ibii jus ibii remedium , where there is a wrong, there must be a remedy 19/12/2023 208

The significance of the general theory is that it recognises the power of a court to expand the existing boundaries of liability to create new remedies . According to Winfield, this is a power that courts have exercised throughout the evolution of the common law e.g. the development of trespass on the case, and the law on negligence. 19/12/2023 209

Sir Frederick Pollock in Law of Torts, 13th Ed., p. I.) stated the theory as such: “All members of a civilised commonwealth are under a general duty towards their neighbours to do them no hurt without lawful cause or excuse .” “neighbour” has a special connotation here-which is any person who will likely be affected by another’s act or omission 19/12/2023 210

Under the general theory of tort, areas of liability have been expanded over a period of time eg negligence, strict liability, torts between spouses, the law on contributory negligence 19/12/2023 211

Readings Percy H Winfield, “The Foundation of Liability in Tort”, (1927) 27 Colum. L R 1 Carleton Kemp Allen, “ Legal Morality and the Ius Abutendi ”, (1924) 40 L. Q. Rev. 164 19/12/2023 212

Tort liability as particular States that there are specific torts already recognised by the courts . If a claim is not recognised it can never form a ground for liability. AL Goodhart rejected the general theory of liability in his “The foundation of tortious liability”, (1938) 2 Mod L R 1 19/12/2023 213

He stated that the view that “the law of tort (or of torts as we prefer to call it) is based on a single principle” is objectionable not only because it is incorrect but also because even its proponents have fundamental disagreements about the nature and the date of origin of the principle. 19/12/2023 214

“...there is no general principle of tortious liability, but merely a considerable though finite number of different known kinds of torts . The ways of committing these torts may, of course, be infinite, but the torts themselves are finite.” 19/12/2023 215

He rejects the argument advanced under the general theory that courts have always been free to expand the fields of liability in tort: “ a plaintiff cannot recover merely because he has been unjustifiably injured by the defendant: he must still prove that some specific right has been violated . However desirable it may be to have a general principle in the law of torts, it is, we believe, a case of wishful thinking to say that it exists at the present time.” 19/12/2023 216

Glanville L Williams, “The foundations of tortious liability”, (1939) 7 Cambridge L.J. 111 while not supporting the general theory of liability however acknowledges that courts indeed do have a power to expand areas of liability and even create new torts . However, they usually use previously existing principles of law to create new causes of action. 19/12/2023 217

Damnum sine injuria Not all wrongs are actionable in tort. Certain acts may cause loss or harm but with no liability on the part of the defendant because no right has been violated In Kenya, the concept was defined in the case of Peter Wambugu Kariuki v Justus Weru Ngaruchi & Others [2001] eKLR (albeit not a tort case). The ct stated as follows: 19/12/2023 218

“ Under our system of law, there are certain forms of harm of which the law takes no account; and there are some acts or omissions which, though harmful, are not wrongful in the eyes of the law and are not justiciable, and give no right of action to him who suffers their effects. Damage arising out of such acts or omissions is what is known as damnum sine injuria 19/12/2023 219

Reynolds v. Shipping Federation Limited [1924] 1 Ch. 28. Mayor of Bradford v Pickles [1895] AC 587 (HL) Gloucester Grammar School case , 1410 Y B 11 Hen IV 27 Chasemore v Richards [1859] 7 HLC 349 Inglis A Clark, “A Study in the Law of Torts”, (1906) 20 Harvard Law Review 46 19/12/2023 220

THE CONSTITUTIONAL AND LEGAL BASIS OF TORT

Social contract and origin of government The social contract theory is one that is more closely associated with the development of tort law. Though there are different proponents, they state generally that society goes through stages of development from simple to sophisticated and that the law emerges and evolves in tandem with society. 19/12/2023 222

John C.P. Goldberg, “The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs”, (2005) 115 Yale L J 525 shows that under common law and even in the legal philosophies, citizens have always had a right to a system of law that will allow them to redress private wrongs inflicted upon them by fellow citizens. Such a system derives from social contractarian thought. 19/12/2023 223

Examples Thomas Hobbes , in Leviathan (1651) argued that initially human beings lived in the State of Nature. In the state of nature, human beings are actuated by their own selfish ends. They pursue their own interests at the expense of others 19/12/2023 224

The result is a survival for the fittest tussle in which only the strong are able to access resources necessary for life. In the state of nature there is continued war amongst humans and the life of man is short, nasty and brutish. 19/12/2023 225

While human beings are actuated by self survival instincts, they also do have the power to exercise reason. Through the use of reason human beings discover that their survival as a race depends on their acting together as a civil society/community 19/12/2023 226

How is civil society formed? By all members therein giving up their individual claims against each other and reposing it in the whole group and then allowing a person or assembly of persons (the Sovereign) to exercise the authority to enforce these individual claims in community. This relationship is created through the social contract 19/12/2023 227

Under the social contract humans “ agree to establish society by collectively and reciprocally renouncing the rights they had against one another in the State of Nature. Second, they must imbue some one person or assembly of persons with the authority and power to enforce the initial contract. In other words, to ensure their escape from the State of Nature, they must both agree to live together under common laws, and create an enforcement mechanism for the social contract and the laws that constitute it.” 19/12/2023 228

Tort law is one of the enforcement mechanisms that the Govt provides under the social contract theory Because tort law operates in the private sphere, it is a true manifestation of the social contract theory because it allows victims of violations control over the process of seeking remedies. The govt only provides the institutions to be used for this purpose 19/12/2023 229

John Locke Also bases his social contract theory on Hobbe’s State of Nature. However Locke’s state of nature is not as brutal and unruly; in fact in it, all humans are in a state of perfect equality with one another . No one person has the right to harm another and every person is able to live without interference from any other person. 19/12/2023 230

Because every person has equal rights against each other, it means that every person is free to protect himself against transgressions by others . Political society comes up when all people come together and give up this right to punish transgressors to a public power of the government. 19/12/2023 231

The creation of govt is made possible through the social contact-the contract between citizens and the govt where the govt provides remedial mechanisms and citizens pay allegiance to it. In relation to tort, each citizen is free to conduct his affairs as long as they do not interfere with the right of others to conduct their affairs freely. In case of violation, the govt has given victims the right to seek enforcement through the courts. 19/12/2023 232

Further readings Jean-Jacques Rousseau, Social Contract (1762) John Rawls, A Theory of Justice (1972) 19/12/2023 233

Social contract in the Constitution Chapter one-sovereignty of the people and Supremacy of this constitution 1. (1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. (2) The people may exercise their sovereign power either directly or through their democratically elected representatives . 19/12/2023 234

(3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution –– ( a )... (b)...; and (c) the Judiciary and independent tribunals . (4) .... 19/12/2023 235

Chapter ten-judiciary Part 1-Judicial Authority and Legal System 159. (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. ... 19/12/2023 236

There are many statutes that provide for the various courts that exist in Kenya, Supreme Court Act, Judicature Act, Magistrates Courts Act etc 19/12/2023 237

PROCEDURAL ISSUES IN TORTS

Who may sue in a tort claim? Who has locus standi ? An adult of sound mind who has a direct interest in the claim and who resides in Kenya A corporation see s 16 Companies Act; a company once incorporated acquires the capacity to sue and be sued in its own name A minor has no capacity to file a suit in his/her name except through “next friend”-may be a parent or other guardian 19/12/2023 239

What about a deceased victim of a tort? Suit may be filed by an administrator of the deceased person’s estate (in intestate succession) or executor of the will of the deceased person (in testate succession). The person has to obtain orders of a court through what is known as succession proceedings under the Law of Succession Act cap 160 However not all causes of action survive the death of the victim 19/12/2023 240

Exceptions can be found in Law Reform Act cap 22 LOK see s 2(1) “Subject to the provisions of this section, on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate : Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.” 19/12/2023 241

(3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either—(a) proceedings against him in respect of that cause of action were pending at the date of his death; or (b) proceedings are taken in respect thereof not later than six months after his executor or administrator took out representation. 19/12/2023 242

Who may not sue? A person under a legal disability may not sue in tort except through a “guardian ad litem ” A bankrupt cannot file a suit (legal disability) A company under liquidation or receivership A person suffering from mental disability 19/12/2023 243

Who may be a defendant? Natural person/corporation that has caused the injury in question 19/12/2023 244

Parties to a tort suit Order 1 CPRs 19/12/2023 245

How is a tort claimed framed? Commenced by the victim of the tort through the filing of a pleading known as a “plaint”. The plaint sets out a number of issues see Order 2 and 4 CPRs The name and description of the plaintiff and the defendant The address and occupation of the parties A description of the claim and how it arose-set out in numbered paragraphs 19/12/2023 246

(d) ... O 4 CPRs 19/12/2023 247

Summons to enter appearance Order 5 CPRs 19/12/2023 248

Service of summons Order 5 rr 5-31 19/12/2023 249

appearance Defendant to enter appearance using memorandum of appearance Order 6 r 2 ...and file his defence Order 7 Amendment Order 8 19/12/2023 250

Hearing Evidence Plaintiff begins Defendant finishes Judgment Execution 19/12/2023 251

GENERAL DEFENCES IN TORT

At certain times the defendant may be responsible for the act but then raise a ground that totally or partially negates that liability. These grounds are known as defenses. They are usually disparate and depend on the claim in question. However, for theoretical purposes, and, according to Goudkamp , these defenses can fall into three classes: absent element defences, justifications, and public policy defences. 19/12/2023 253

A Taxonomy of Tort Law Defences James Goudkamp Tort defences can be classified into 3 categories (what Goudkamp calls a “taxonomy”) (a) absent element defences, (b) justification defences, and (c) public policy defences. 19/12/2023 254

Absent element defence is a “denial that all of the elements of the tort in which the plaintiff sues are present.” this is a negative defence-it denies that a tort was ever committed Justifications are “defined as defences that relieve the defendant of liability on the basis that he acted reasonably in committing a tort.” 19/12/2023 255

Public policy defences, “exempt the defendant from liability even though he committed a tort.” “Public policy defences exist in recognition of the fact that the goals of tort law must on occasion play second fiddle to other social concerns. Liability must sometimes be withheld from a tortfeasor in order to promote some aim external to tort law .” 19/12/2023 256

Justifications and public policy defences are affirmative defences in that they consist in releasing the defendant from liability even though a tort was committed 19/12/2023 257

1. Absent element defences A. Denial of the act E.g. Involuntariness -def claims that the act was not a voluntary one the effect of which is to deny the fact of the tort 19/12/2023 258

B. Denial of fault E.g. Inevitable accident- def claims that despite his diligent effort the act would not have been prevented-usually available in negligence cases Act of God - def claims that the act was beyond his control and attributable to an act of God e.g. Exceptional frost ( Blyth v Birmingham Waterworks ), a heart attack ( Ryan v Youngs [1938] 1 All ER 522 (CA) at 525.) 19/12/2023 259

Mistake : e.g. in misrepresentation cases where the def proves that he was mistaken about the facts forming the basis of the case he may escape liability (e.g. Derry v Peek (1889) 14 App Cas 337 (HL) (deceit); Loundon v Ryder (No 2) [1953] Ch 423 (Ch D) at 428 (injurious falsehood).) In negligence cases, if the damage forming the cause of action was due to a reasonable mistake by the def the pl may not prove beach of duty of care 19/12/2023 260

In defamation cases, pl must prove that the defamatory matter was published to a third party. If for example def was arguing with Pl during which argument def uttered defamatory matter to the pl in the mistaken but reasonable belief that nobody else was within earshot, pl will not succeed. 19/12/2023 261

Volenti non fit injuria (voluntary assumption of risk)-where def shows that pl voluntarily and with full knowledge of the danger accepted to incur the risk def will not be liable. usually available in negligence cases 19/12/2023 262

Other examples Act of a third party Contributory negligence Truth Pl’s consent Illegality Exclusion of liability by contract or notice prescription 19/12/2023 263

2. Justification defences A. Private justifications- available to the def when def acted reasonably in committing a tort in furtherance of his own interests Self-defence -if pl sues in battery and def proves that he used reasonable force against pl in resisting pl inflicting injury on him 19/12/2023 264

Defense of one’s property -available when def committed a battery on pl through reasonable action aimed at protecting his/her property against the pl Abatement -def who trespasses on pl’s land in order to bring a nuisance to an end is shielded from liability. Def’s interference must be reasonable 19/12/2023 265

Forcible re-entry of land -where def has the right of immediate possession to land, he can use reasonable force to enter upon it evict a trespasser therefrom Recapture of chattels -a def dispossessed of a chattel to which he has a right of immediate possession may commit a battery or trespass to land in reclaiming the chattel as long as reasonable force is employed. 19/12/2023 266

Qualified privilege - arises with respect to statements made in discharge of some duty, public or private, and to communications made between persons sharing a common interest. e.g. Communication between a parent and a teacher about a child’s conduct in school Read section 7(1) DA and the Schedule 19/12/2023 267

innocent dissemination-in defamation cases, if def unintentionally distributed or passed on information from a third party that turned out to be defamatory, liability may be avoided if def reasonably believed the author or source of the information did not impute defamatory content e.g. The seller of newspapers Sec 13 Defamation Act 19/12/2023 268

B. Public justifications Public necessity -the defence arises where a tort, other than negligence, has been committed while protecting an important public interest. The act must be reasonably necessary to protect an important public interest e.g. battery will be excused where a doctor operated on a patient without seeking consent, when it was reasonably necessary to save the patient’s life e.g. Njareketa v DMS ; 19/12/2023 269

or bringing down a house to prevent a fire from spreading ( Saltpetre Case (1606) 12 Co Rep 12; 77 ER 1294.); or tossing goods from a ship to save it from sinking ( Mouse’s Case (1608) 12 Co Rep 63; 77 ER 1341.) 19/12/2023 270

Defence of another person -under common law an employer could use reasonable force to defend his/her employee against aggressors (see the case of Seaman v Cuppledick (1614) Owen 150; 74 ER 966.) Currently, defence of another person is available in wide variety of situations regardless of the relationship between the parties ( Goss v Nicholas [1960] Tas SR 133 (SC); Gortarez v Smitty’s Super Valu , Inc 680 P 2d 807 at 816 ( Ariz 1984). 19/12/2023 271

Arrest -reasonable force may be used to effect an arrest by detaining a person who is about to commit, is committing or has committed an offense See section 21, 26, 29, 34 CPC 19/12/2023 272

3. Public policy defences Absolute privilege- provides a complete defence to a tort and is generally set out in statute e.g. 19/12/2023 273

(a) Parliamentary privilege-section 4 National Assembly (Powers and Privileges) Act cap 6 “No civil or criminal proceedings shall be instituted against any member for words spoken before, or written in a report to, the Assembly or a committee, or by reason of any matter or thing brought by him therein by petition, Bill, resolution, motion or otherwise.” 19/12/2023 274

( b) Judicial-section 6 Judicature Act cap 8 “ No judge or magistrate and no other person acting judicially, shall be liable to be sued in a civil court for an act done or ordered by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided he, at the time in good faith believed himself to have jurisdiction to do or order the act complained of;… 19/12/2023 275

….and no officer of a court or other person bound to execute the lawful warrant orders or other process of a judge or such person shall be liable to be sued in any court for the execution of a warrant, order or process which he would have been bound to execute if within the jurisdiction of the person issuing it.” 19/12/2023 276

(c) Fair and accurate newspaper reports of court proceedings-s.6 Defamation Act “A fair and accurate report in any newspaper of proceedings heard before any court exercising judicial authority within Kenya shall be absolutely privileged: Provided that nothing in this section shall authorize the publication of any blasphemous, seditious or indecent matter.” 19/12/2023 277

Diplomatic immunity -foreign heads of state and their diplomatic agents are immune to liability under the law of the receiving state; includes consular officials and certain international organisations and their agents e.g. The UN Purpose is to ensure that those who enjoy them are not hindered in the discharge of their responsibilities by liability or the threat thereof. 19/12/2023 278

Death -under common law, death of either party extinguished liability. However under the Law Reform Act Cap 26 s 2(1), only defamation claims die with the litigant Bankruptcy -a discharged bankrupt is not liable for any torts that are the subject of that discharge 19/12/2023 279

Limitation of action -torts cannot be pursued 3 years after they arise (except for defamation claims which must be filed within 12 months) Limitation of Actions Act s 4(2) Res judicata -a matter that has already been litigated cannot be reopened-the intention is to ensure that cases are litigated efficiently and resources are not wasted on cases that have already been determined see s 7 of Civil Procedure Act 19/12/2023 280

ISSUES IN TORT REFORM

Stephen D. Sugarman , Doing Away with Tort Law 73 Cal. L. Rev. 557 1985 has argued that tort law should be abolished. A. TORT AS A DETERRENT: OBJECTIONS As a deterrent, tort law is ineffective because: 1. that objective is unattainable because the dangerous activities that are likely to occur if there was no tort liability are exaggerated, so too is the attainment of injury reduction. 19/12/2023 282

2. there are other factors that work to mitigate bad behaviour e.g. self-preservation instincts, market forces, personal morality, and gov’tal regulation combine to control unreasonably dangerous actions independently of tort law. Thus if tort law was abolished, it does not follow that there will be a dramatic increase in the type of injuries that tort law purports to deter. 19/12/2023 283

3. there are factors that undermine the deterrence potential of tort law : if tort law was deterrent enough, no torts would be committed! A successful tort lawsuit in fact means a failure of deterrence as an objective! A number of factors work to undermine the deterrent power of tort law, including: 19/12/2023 284

A. Ignorance of law and fact: if people are to be deterred from tortious conduct they must be aware of what the law says. Quite often, they are not-either because they are not attentive to state declarations of law, or society fails to make them aware of such laws e.g. Opaque court and legislative processes People may be oblivious to the danger posed by the conduct they engage in as they may not have the necessary and relevant information to enable them make proper choices 19/12/2023 285

b. Incompetence-Individual and Organizational sometimes people are just plainly incompetent or exercise bad judgment-for those, deterrence becomes irrelevant 19/12/2023 286

C. Discounting the threat of liability owing to the vagaries of litigation some defendants will engage in the dangerous activity knowing that getting compensation will be a very complicated process. E.g. they know no one will take not likely take up the matter, or a potential pl may not be ware of his rights or even who the potential defendant is, or a pl is averse to litigation, or evidence is lost, etc 19/12/2023 287

d. High Stakes in Behaving Dangerously Some actors feel that the stakes are just too high to be concerned about the potential loss to others . They therefore engage in risky behaviour well prepared to pay compensation in case they cause injury and are sued. The risk of paying compensation is much lesser than what will be gained from engaging in the risky behaviour 19/12/2023 288

E. Small penalty The penalty arising from breaches may be too miniscule to concern tortfeasors with immense resources at their disposal F. Poverty if a defendant has no resources with which to satisfy a judgment in tort, the judgment is worthless-a paper judgment 19/12/2023 289

4. Liability insurance Undermines the sanctioning effect of tort because it shifts the responsibility for the loss from the individual tortfeasor to a company. The person who caused the loss does not feel the effect/pain of the sanction 19/12/2023 290

e.g. In Kenya, mandatorily requires owners of motor The Insurance (Third Party Motor Vehicle Risks) Act vehicle to take out an insurance policy to guard against risks of injury to third parties. See section 4 thereof In case of an accident and a finding of liability, the insurance pays up the damages and not the tortfeasor. 19/12/2023 291

5. Socially Undesirable Responses to Tort Law (a) Over-deterrence -Increased threats of liability for certain conduct may put too much pressure on the actors in a particular industry to even avoid engaging in socially desirable experiments e.g. The threat of medical malpractice liability against doctors in the US has been said to make doctors avoid certain kinds of specialisations which are deemed dangerous (see the case of Whitehouse v Jordan ) 19/12/2023 292

(b) tort causes defendants and would-be defendants to take perverse action. i.e., actors become overcautious/fearful e.g., to avoid liability, doctors may engage in “defensive medicine” , where diagnosis is not pegged on the patient’s condition, but on the desire to avoid lawsuits 19/12/2023 293

(c) The threat of a lawsuit may cause a defendant to refuse to acknowledge his deficiencies and engage in cover-up of bad conduct . This is dangerous for consumers of products made by such a defendant. Has caused some defendants to dedicate enormous resources to fight off claims, however meritorious just to discourage lawsuits against themselves e.g. Tobacco companies, or insurance companies. Hence undermining the deterrent purpose of tort 19/12/2023 294

6. Victims’ incentives it seems that the availability of remedies may spur victims to exaggerate their injuries/losses , or even encourage conspiracies where fake victims are presented before courts for compensation. This has certainly been the case in Kenya where unscrupulous lawyers collude with other players such as police, doctors and even magistrates to present false claims which end up being paid, to the detriment of insurance companies 19/12/2023 295

Read the following materials Oywa J., “Fraudsters milking insurance firms dry”, Standard on Saturday , 8 th September 2012 Apollo Insurance Company Limited v. Scholastica K. Kamau & Muthanwa & Company Advocates High Court Civil Case No.1945 of 1999 19/12/2023 296

United Insurance Co. Ltd v. Dorcas Amunga High Court Civil Cause No. 462 of 2000 Kenya Bus Services Ltd v. Susan Muteti Court of Appeal Civil Appeal No. 15 Of 1992What problem is being portrayed in the articles? What should be the solution(s)? Was the dual cheque approach proposed by insurance companies any better? 19/12/2023 297

B. TORT AS A COMPENSATION TOOL: OBJECTIONS 1. There is an uneven method of determining compensation . Thus similar victims may get different compensation, all of which is determined by factors other than the injury e.g. The lawyer’s ability and talent, the victim’s demeanour during the hearing, the method of calculating damages, the status of the victim in the society etc 19/12/2023 298

Over-compensation -some victims may earn larger than deserved compensation e.g. Under general damages, courts generally exercise discretionary powers. This may be exercised too liberally- Sugarman argues that courts are generally sympathetic to accident victims may end up giving larger than deserved compensation. 19/12/2023 299

C. TORT AS CORRECTIVE JUSTICE: OBJECTIONS The goal of returning pl to the position he was in before the tort is unattainable Corrective justice dictates that the particular def who caused the injury should be the one to remedy the wrong. However, if the defendant has taken out insurance against the risk, he never gets to remedy the wrong in person 19/12/2023 300

Also, the operation of vicarious liability means that a principal shoulder’s an agent’s otherwise personal liability e.g. Employers bear the burden of employees’ negligence. The cost of administering a tort system is very high-the govt must maintain courts and other relevant institutions, lawyers must be used, the costs of litigating a tort claim may increase liability of the defendant beyond the original claim etc 19/12/2023 301

Reform strategies No fault compensation schemes-here a victim of an accident gets compensated according to laid down criteria whether anyone was at fault or not. The victim does not have to sue in to be paid-the courts are generally removed from the picture entirely 19/12/2023 302

E.g. The Work Injury Benefits Act which provides for compensation for accidents “arising out of and in the course and scope of an employee’s employment and resulting in personal injury.” Funds for compensation come from a mandatory insurance scheme that employers are required to contribute to. Read the Act in its entirety 19/12/2023 303

the government may set up a public fund from which compensation for accident injuries will be drawn for purposes of paying victims regardless of fault The Fund can initially be created using taxes, and eventually sustained by contributions by people involved in the activity that creates the risk of harm e.g. Matatu operators 19/12/2023 304

PRINCIPLES OF TORT.ppt taught in first semester

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PRINCIPLES OF TORT.ppt taught in first semester

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