The Principles of Liability in Tort

TABLE OF CONTENTS

1.0       Introduction

2.0       Objectives

• Main content
• Damage and liability in Tort

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignments

7.0       References and further reading

INTRODUCTION

Generally, each kind of tort has its own rules of liability. However, the rules which determine liability in various torts include the following:

1. The principle of fault or negligence: Liability in many torts is based on the principle of negligence or existence of fault, with the exception of strict liability torts. For instance, liability in the torts of negligence, occupier’s liability, professional negligence, road traffic accidents, etc are based on the principle of fault or negligence.
2. The principle of damage: Here, liability attaches because the claimant or plaintiff has suffered damage as a result of the defendant’s conduct. This is with the exception of torts which are actionable per se, that is without the necessity of proving damage, for instance, trespass and libel.
3. De minimis non curat lex: Which means the law does not bother or concern itself with trivialities and thus there is no liability.
4. Intentional damage is never too remote: Where a damage is intentional, the wrongdoer is usually liable.
5. A tortfeasor takes his victim as he finds him: This is known as the “egg shell” rule, “thin skull” rule or the “unusual plaintiff’s” rule.
6. Strict liability: As a general rule, the principle of strict liability means that a defendant is liable for his tort, even though there is no fault or negligence on his part and whether or not damage is done to the plaintiff.

We shall examine these principles of liability in the next two units with the exception of the principle of fault or negligence which shall be examined fully later.

OBJECTIVES

By the end of this unit you should be able to:

(i)        explain the principle of damage.

MAIN CONTENT

Damage and liability in Tort

Often times, for a defendant to be held liable for a tort, the plaintiff must have suffered damage as a result of the conduct of the defendant. Where damage has been proved by a plaintiff, then the test of reasonable foreseeability or remoteness of damage will be applied to determine the extent, scope or amount of damage for which the defendant will be held liable and ordered to pay to the plaintiff.

However, because damage does not always lead to liability, three principles exist with respect to damages. These are:

1. Damage without legal wrong: that is damnum sine injuria. This means that there is no legal remedy even though loss was suffered.
2. Legal wrong without damage: that is injuria sine damnum. This means that there is liability and remedy based on fault, even though there is no damage.
3. Damage leading to tortuous liability and legal remedy: This is damage and legal remedy. This is the commonest situation in most torts and civil claims.

Ordinarily, a damage is a loss or injury suffered by a person. A damage may be physical such as one done to the body and property, or economic, that is financial, etc. Furthermore, the word “damage” also means the money compensation which is usually paid by a wrongdoer to a person who suffered a loss or injury. Thus damage is the estimated money compensation which court usually orders a defendant to pay to a plaintiff or claimant who has suffered a loss or injury. See the following cases: Mahon V. Osborne (1933) 2 KB 14; Byrne V. Boadle (1863) 159 ER 299 and Ward V. Tesco Stores Ltd. (1976) 1 All E 219.

We shall now examine the various principles regarding damage.

Damage without a legal wrong: Damnum sine injuria

Damage without a legal wrong or damnum sine injuria is a loss or damage which does not have a legal remedy. Damage without a legal injury is where a wrong or damage has been done to a person, nevertheless, the person has no right of action to recover compensation because no legal wrong has been committed. It is a damage suffered without the breach of a legal right. Thus, the mere fact that a person has been harmed does not entitle him to maintain an action, unless a legal wrong has been done to him.

For a suit to succeed, the damage must result from a breach of a legal right of the plaintiff. Where a damage is suffered without the breach of a legal right, it is known in Latin as damnum sine injuria that is, damage without injury. Examples of damages without legal injury are:

1. Trade compensation
2. Defamation on a privileged occasion
3. Lawful use of property or lawful conduct; and
4. Perjury

We shall briefly examine these torts.

Trade Competition

Ordinary trade competition among several traders who sell the same or similar goods or services may cause harm to a trader who cannot compete. This may lead to loss of customers and livelihood. However, this does not give a right of action. Thus, where a big supermarket or dealer sets up business next to a small retailer and sells at cheaper prices, as a result of which the retailer being unable to compete is forced to close down his business, harm is done to him as his livelihood is lost and he may suffer other consequential losses. Nonetheless, there is no legal wrong committed by the big supermarket. Thus, right of action will not lie and no remedy will be offered to the retailer who has suffered.

Therefore where right of action is based on the occurrence of a legal wrong or legal damage; a tort or wrongful act is not actionable per se upon commission, unless a legal wrong or legal damage is done to the plaintiff. In such instances, liability only attaches when damage is caused to the plaintiff. Accordingly, the plaintiff will only succeed if he can prove that the defendant has infringed his legal right or done a legal wrong and that thereby he has suffered harm or injury.

In Mogul Steamship Co. V. McGregor Gow & Co. and Ors. (1892) AC 25, the plaintiff appellant company and the defendant respondent companies were rival traders in China tea. The defendants formed an association to the exclusion of the plaintiff and persuaded tea merchants in China not to act as the plaintiff’s agents; otherwise their agency would be withdrawn by the association. The plaintiff then brought action against the associated defendants alleging a civil conspiracy to injure the plaintiff’s trade.

The House of Lords held that the defendant companies acted with the lawful object of protecting, extending their trade and increasing their profits. The House of Lords went on to say that since the means they used were not unlawful, the plaintiff had no cause of action even though the plaintiff may have suffered injury. Therefore, trade conspiracy per se without more is not a tort unless it is accompanied by some unlawful act.

Defamation made on a privileged occasion

Another example where there is a damage but there is no right of action is when a defamatory statement is made on a privileged occasion. Defamation on a privilege occasion is where a person is defamed but the plaintiff has no right of action because the defamation was made on a privileged occasion. In this instance, damage is occasioned to the plaintiff but there is no legal wrong done and consequently there is no right of action to recover compensation for defamation. See the case of Chatterton V. Secretary of State fro India (1895) 2 QB 189; and Ayoola V. Olajire (1977) 3 CCHCJ 315.

Lawful use of Property

As a general rule of law, lawful use of property or lawful conduct without more is not a legal wrong against which right of action and remedy lies. However, when lawful use of property degenerates or graduates into nuisance or other legal wrong or breach of law, right of action and remedy then lies.

In Bradford Corporation V. Pickles (1895) AC 587 HL, the parties were adjoining land owners. The defendant corporation had statutory powers to take water from certain springs. Water reached these springs by flowing in undefined channels through the neighbouring land belonging to the defendant. The defendant with a view to inducing Bradford Corporation to buy his land at a high price, sank a shaft on his land to collect the passing water and thereby interfered with the flow of water into the corporation’s reservoir.

The corporation applied to court for an injunction to restrain him from collecting the underground water in his borehole. The court held that an injunction would not lie. The defendant was entitled as an owner to draw from his land the underground water. His “malice” if any, in trying to force the purchase of the land was irrelevant. No lawful use of property can become illegal if done with an improper motive. Therefore as a general rule, lawful use of one’s property is not a legal wrong, unless such use degenerates into nuisance or other breach of law.

Perjury

Perjury is the offence of knowingly making a false statement or giving false evidence in a judicial proceeding in which one is a party or was called as a witness to give evidence. Therefore if a person goes to court and gives any evidence which the person knows to be false, he commits the offence of perjury and if he is discovered he may be prosecuted and sanctioned for it in criminal law. See section 117 of the Criminal Code Act. See also the following cases: Cadell V. Palmer (1831) 6 ER 956; R V. Hall (1982) 4 CAR 153; R V. Rider (1986) 83 CAR 207; and R V. Peach (1990) 2 All ER 966.

However, whether or not the person is discovered and prosecuted for it, the party who is injured by the perjury has no right of civil action for remedy in respect of the perjury per se, although he may be able to go on appeal on other points of law in the proceedings in which the perjury was committed.

In Hargreaves V. Bretherton (1958) 1 QB 45, the plaintiff brought an action for damages against the defendant on the ground that the defendant had falsely, maliciously and without just cause committed perjury as a witness by giving false evidence at the trial of the plaintiff for certain criminal offence and that consequently he the plaintiff had been convicted and sentenced to eight years imprisonment. The court held that no right of action lied as the plaintiff’s action was based on the purported tort of perjury. There is no tort of perjury.

In Roy V. Prior (1971) AC 470, the plaintiff sued the defendant for damages alleging inter alia that the defendant caused his arrest and forcible attendance at court to give evidence as a witness in a criminal proceeding by falsely saying in court that the plaintiff was evading a witness summons. It was held that there was no tort of perjury and therefore no cause of action lay against the defendant. See also Evans V. London Hospital Medical College (1981) 1 WLR 184.

The reason for this immunity from liability in civil action for perjury, lies in the public policy that witnesses should feel free to come and give evidence in legal proceedings. However, the English Criminal Justice Act 1988 gives a prisoner whose conviction is quashed or pardoned due to perjury and so forth, a right to monetary compensation from the government to assuage his feelings and alleviate his sufferings for the perjury committed against him and his resultant conviction.

Legal wrong without damage: Injuria sine damno

Legal wrong without damage means legal wrong without loss. It is the breach of a person’s legal right but without damage to the person. It is a legal wrong without damage. Whenever there is a breach of a person’s legal right, the person has a right of action and may bring action to recover damages even though it is nominal damage. See Ashby V. White (1703) 1 ER 417. He may also obtain such other appropriate remedies, although he never suffered any harm as a result of the tort. This is a contrast to damage without legal wrong. This is a situation where there is a legal wrong committed or done against a person but no loss or damage was suffered by the plaintiff or no damage was established by the plaintiff.

As a general rule, where there is a legal wrong without damage, the law presumes damage even though damage was not suffered by the plaintiff nor was proved by the plaintiff. For the simple reason that a legal wrong has been done to the plaintiff and the plaintiff is thereby entitled to an award of general damages, at least nominal damages, however small the amount. See Newstead V. London Express Newspapers (1940) 1 KB 377; and Basel v Clarkson (1681) 83 ER 565.

The principle of legal wrong without damage or injuria sine damno, is an exception to the general rule that there must be damage or injury before legal action may be brought against a wrongdoer in tort. The torts in which damage need not be proved for a right of action to lie, are torts which are actionable per se, that is, they are actionable upon being committed. In other words, these torts give a right of action to the plaintiff to sue, once they are committed even though no harm resulted to the plaintiff.

To succeed in a claim for compensation in torts that are actionable per se, the plaintiff only needs to prove on the basis of probability, that the tort he alleges was committed. However, the plaintiff need not go on to establish damage, except where he actually suffered damage, in which case the amount of damages the plaintiff will recover will accordingly be increased beyond nominal damages. Examples of torts which are actionable per se, upon commission without the necessity of establishing damage include:

1. Libel and sometimes slander
2. Trespass to the person
3. Trespass to chattels
4. Trespass to land

We shall examine these torts briefly.

Libel and sometimes slander

Defamation consists of libel and slander. Libel is actionable upon mere commission without the necessity of proving damage. As a general rule, slander is not actionable per se, except in four instances. These are:

1. Implying that a person has committed a criminal offence. See Farashi V. Yakubu (1970) NNLR
2. Saying that a person has an infectious disease. See Bloodworth V. Gray (1844) 135 ER
3. Accusing a woman or girl of unchastity. See Kerr V. Kennedy (1942) 1 KB
4. Implying that a person is incompetent in his or her profession, business or office. See African Press Ltd. V. Ikejiani (1953) 14 WACA 386.

Like in libel, these four heads of slander give rise to a right of action in themselves. To succeed, the plaintiff only needs to establish that the slanderous expression was published, without the necessity of proving damage. He may however prove any specific damage that he has suffered in addition to the general damages that may be presumed in his favour.

Trespass to Person

For instance, assault and battery, each gives a right of action in itself.

Trespass to Chattel

Trespass to goods is actionable per se.

Trespass to Land

A right to sue arises for every unlawful entry or trespass to land, even though no actual damage was done to the land. Therefore, trespassing on another person’s land such as by mere entry on the land or removing anything from it, without lawful authority or excuse constitutes trespass.

The general rule of law is that where there is a wrong, there is a remedy, even though no specific damage was suffered. Thus, legal wrong and remedy usually go together. This rule of law is well illustrated in the case of: Ashby V. White (1703) 1 ER 417.

The plaintiff, a voter was prevented from casting his vote at an election by White, the Mayor of Aylesbury, England and his vote was discountenanced. He sued alleging wrongful rejection of his vote. The court held in his favour that an elector had a right of legal action for a form of nuisance or disturbance of rights, when his vote was wrongfully rejected by the returning officer even though the candidate he had tried to vote for was elected. In this case, Holt CJ took time to explain that the existence of a legal right and remedy go together:

“If the plaintiff has a right he must of necessity have the means to vindicate it, and a remedy, if he is injured

in the exercise of it, and indeed, it is a vain thing to imagine a right without a remedy; for want of right and remedy are reciprocal.”

On appeal, the House of Lords upheld the judgment. Therefore, where there is a right, there is a remedy – ubi jus ibi remedium. And where there is no right, there is no remedy. See also Bello V. A. G. Oyo State (1986) 5 NWLR pt. 4, p. 828 SC.

However, in a case where there is a legal wrong but damage did not occur or was not proved by the plaintiff, the amount of damages the court may award would usually be small as no loss was established. In such instances, nominal damage may be awarded. Nominal damage is an award of small damages. It is usually awarded where little or no damage was proved in order to discourage people from running to court at every minor breach of right to litigate. The reason being that, the law does not concern itself with trifles. This in part gave rise to the principle of de minimis non curat lex meaning that court does not concern itself with trivialities. This is a principle the court may consider in appropriate cases in determining liability.

SELF ASSESSMENT EXERCISE 1

What do you understand by nominal damages?

Causation and liability for damage

The consequences of a wrong conduct done by a defendant may be minimal, limited or even seemingly endless. In other words, when a tort is committed, the damages caused may be:

1. Minimal
2. Limited; or
3. Seemingly

Therefore, we need to ask, for what consequences of a tort is the defendant liable? Is a defendant liable for only immediate damage or for the far flung remote damages? Is he liable for all damages occasioned by his tort? In other words, what is the liability of a tortfeasor; is he liable only for the reasonably foreseeable damages, or is he liable for continuous loss and for the consequences? For what result of his torts is a tortfeasor liable? What is the relationship between cause and liability?

As a general rule, a tortfeasor is only liable for the reasonably foreseeable damages of the tort he committed. Accordingly, a plaintiff is only entitled to compensation for damages which in the estimation of the court flows naturally from the alleged tort, that is to say, a tortfeasor is only liable for damages that are reasonably foreseeable. Thus, where damage is too remote to be the result or consequence of the alleged tort, no compensation would be awarded.

A helpful question which courts sometimes apply to determine cause and liability of a defendant or whether the damage is the natural or reasonably foreseeable result of an alleged tort, is the “but for” test. Meaning that if the damage would not have occurred but for the defendant’s tortuous conduct, then the defendant is liable. The following two cases illustrate the application of the “but for” test.

Barnett V. Chelsea & Kensingson Hospital Management Committee (1968) 1 All ER 1068.

The plaintiff’s husband after drinking some tea persistently vomited for three hours. Two other men who drank the tea were similarly affected. Later that night, they went to the defendant hospital where a nurse contacted the duty doctor, an employee of the defendant hospital who himself feeling unwell could not attend to them and asked them to go home to sleep and consult their own doctors.

The plaintiff’s husband died that night of arsenic poisoning according to the report of the coroner’s inquest. The issue was whether “but for” the doctor’s failure to examine the deceased would he have died? The court held that if the deceased had been examined and treated with proper care, he would probably have died anyway. It could not be said conclusively that the doctor’s failure to treat the deceased was the cause of his death. The hospital was accordingly not liable.

McWilliams V. Sir William Arrol & Co. Ltd. (1962) 1 WLR 29.

A worker who was erecting steel fell from the building where he was working and died. If he had been wearing a safety harness he would not have fallen to death. The defendants who were his employers were under a legal duty under statute to provide all the workers with safety harness. They were in breach of that duty by failing to provide them on the day of the accident.

However, it was proved that on previous occasions when the employer provided safety harness, the deceased worker had not bothered to wear it. The court held that the defendants were not liable. The inference was that even if a safety harness had been provided on the day of the accident, the deceased would not have worn it and so would have died anyway.

Cause and the limit of liability for damage

The tort must have caused the damages claimed. The damage must be the natural or reasonably foreseeable consequence of the tort, otherwise the defendant would not be liable. In other words, it must be possible to draw a causal link or connection between the tort and the damage. The tort must be what caused the damage. Generally, the damage for which compensation is claimed must be a reasonably foreseeable consequence of the tort alleged. The damages must not be too remote from the tort for the action to succeed. Where an injury is the reasonably foreseeable result of a tort, a court will usually award compensation for it.

On the other hand, where the damage suffered is too remote to be the consequence of the tort, the claim will usually fail. As a general rule, court will only award damages for the natural or reasonably foreseeable consequences of a tort. This is so because in law, a person is taken as intending the natural consequences of his action. It is always assumed that there must be a limit to a defendant’s liability. An example of the application of this principle of putting a limit to the liability of a tortfeasor is the case of:

Liesbosch Dredger V. Edison Steamship: The Edison (1933) All ER 144.

The plaintiff contractors who were doing a dredging work lost their ship due to the negligence of the defendant’s ship which ran into it and caused it to sink. Due to impecuniosity, the plaintiff could not replace its ship and continue its contract job and consequently, the company suffered financial embarrassment. They sued the defendant

claiming for the loss of the ship and for consequential financial embarrassment which followed the loss of the ship.

The House of Lords held that damages would lie for loss of the ship, which was the natural and reasonably foreseeable result of the defendant’s negligent navigation that caused it to sink. But the defendant were not liable for the alleged financial embarrassment suffered by the plaintiff which was a consequence of consequences. In  this case, Lord Wright took time to explain the principle of law that there must be a limit to the extent, amount or scope of damages a defendant should be made to pay in these words:

“The appellants actual loss in so far as it was due to their impecuniosity, arose from that impecuniosity as a separate and concurrent cause, extraneous to and distinct in character from the tort. The impecuniosity was not traceable to the respondent’s acts and in my opinion was outside the legal purview of the consequences of these acts. The law cannot take account of everything that follows a wrongful act; it regards some subsequent matters as outside the scope of its selection because it were infinite to trace the cause of causes or consequence of consequences. Thus, the loss of a ship by collision due to the other vessel’s sole fault, may force the ship owner into bankruptcy and that again may involve his family in suffering, loss of education or opportunities in life, but no such loss could be recovered from the wrongdoer. In the varied web of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons. In the present case, if the appellant’s financial embarrassment is to be regarded as a consequence of the respondent’s tort, I think it is too remote.”

See also Obasuyi V. Business Ventures Ltd. (1995) 7 NWLR pt. 406, p. 184 CA.

Thus for instance, damages will not be awarded for the plaintiff’s distressed financial position, impecuniosity or his failure to mitigate his loss; to do so, would amount to holding the defendant liable for the consequence of consequences, which is not the aim of the law of tort. Accordingly, where a plaintiff proves that a defendant’s wrongful conduct caused his loss, he may not be able to recover damages if his loss is not the natural or reasonably foreseeable result of the defendant’s conduct. Therefore, a defendant is not liable for the consequence of consequences and a plaintiff has a duty to mitigate his loss by preventing continuous loss.

The tests for determining the extent of liability for damage

When is a loss the natural outflow of a tort? When is a tort the cause of a damage? When is an injury too remote to be the result of a tort? How do we determine when a harm is the reasonably foreseeable result of a tort and therefore deserving compensation. On the other hand, when is a damage too remotely connected to a tort that it cannot be the consequence of the tort and therefore not deserving an award of compensation?

The modern test used by courts for determining the liability of a defendant is the test of remoteness of damage, otherwise known as the test of reasonable foreseeability of damage as laid down by the Judicial Committee of the Privy Council of the House of Lords in the Wagon Mound’s case (No. 2). (1967) 1 AC 617 PC. However, for historical understanding, we shall look at the old test of liability which is the test of directness of damages, before looking at the new test, known as the test of remoteness of damages or reasonable foreseeability. In other words, we shall examine:

1. The old test of directness of damage - which has been abolished and is no longer being used because the test was hard and unfair to defendants, as the liability of a defendant for damages was too wide under the test of directness of damages; and
2. The test of remoteness of damage or reasonable foreseeability of damage – This is the new or current test for determining the extent, amount or scope of damage for which a defendant should be liable. The test of foreseeability of damage limits or restricts the liability of a defendant to the damages which are reasonably foreseeable to a reasonable man in his shoes. Accordingly, under the test of remoteness of damage, the liability of a defendant is reasonably limited and he is not liable for the consequences of the consequences of his tort.

The Test of directness of Damage

The test of directness of damage was the old test for determining liability in tort. The test was laid down by the English Court of Appeal in the case of Re Polemis and Furness Withy & Co. (1921) All ER 40. This old test is no more in use as it was overruled in the Wagon Mound’s case. However, we shall look at it for historical purposes. The test of directness of damage or test of direct consequence was a test of the directness of damage, that is, the nearness connection or relationship of the damage to the tortuous act. This test was used to determine whether a loss was a direct result or direct consequence of a tort.

Under this test, a defendant was liable for all damages which were the direct result of his tort, whether or not such damage was foreseeable. In other words, the defendant was liable for all the damages which were the direct consequences of his tort, whether or not such damage was foreseeable by a reasonable man. Accordingly, under the old test, a person was liable in damages for all the direct consequences of his tort, even though such consequences were not foreseeable by a reasonable man and whether or not the damages are far flung or whether or not the damages are the consequence of consequences. Thus, under the old rule, the liability of a tortfeasor could be wide, much and far flung.

In Re Polemis and Furness Withy & Co. (supra), Charterers employed stevedores to unload the hold of a ship that contained drums of petrol. Due to leakage of the drums, the hold of the ship contained inflammable vapour. A stevedore negligently knocked a plank into the hold which caused a spark that ignited the petrol vapour into fire. The fire destroyed the ship. The ship owners sued the charterers and stevedores for its loss. The English Court of Appeal held that even though the stevedore could not reasonably have foreseen that his negligent act would destroy the ship, the loss of the ship was a direct consequence of his negligent act. The charterers who hired the stevedores were vicariously liable to pay for the loss of the ship.

The test of directness of damage was a wide and a hard rule. Under the test, a tortfeasor was liable for all the damages that were the direct result of his tort, whether or not the damages were reasonably foreseeable or not and whether such damage was immediate and natural or far flung and remote. The test of directness of damage caused a lot of hardship to defendants; as a defendant’s liability under it was seemingly endless. It was not a good law. For this reason, it was abolished and overruled in the Wagon Mound’s case (supra) in which the test of reasonable foreseeability or test of remoteness of damages was established as the new test for determining the liability of a defendant for his tort.

Comparatively, the principle of directness provides a wider ambit to find a defendant liable. The extent of a defendant’s liability was much wider under the directness rule. As a result, a defendant could be held liable for every damage directly traceable to the tort in question, whether or not such alleged consequences were reasonably foreseeable or not.

SELF ASSESSMENT EXERCISE 2

Why was the test of directness of damage abolished?

The Test of reasonable foreseeability or remoteness of Damage

The test of reasonable foreseeability or reasonable foresight is the later, new and current test applied to determine the liability of a tortfeasor. The test of reasonable foreseeability or remoteness of damage has replaced the old test of directness of damage. The test of reasonable foreseeability looks at the foreseeability of the damage, that is, whether the damage alleged is reasonably foreseeable by a reasonable man. The tortfeasor is only liable for the reasonably foreseeable consequence of his conduct.

Under this test, a defendant is liable for all damages which should have been foreseen as the result of his tort by the exercise of ordinary or reasonable foresight. In determining foreseeability, the question to be asked is whether the damage alleged is reasonably foreseeable by a reasonable man. If the damage is reasonably foreseeable by a reasonable man exercising ordinary prudent care, the tortfeasor is liable. If the damage is not reasonably foreseeable by a reasonable man, or if the damage is a far flung, or remote damage, the tortfeasor is not liable.

In other words, under this test, a defendant is liable for all damages which are reasonably foreseeable by a reasonable man as the consequence of the tort in question. While on the other hand, a defendant will not be liable for damages that are not reasonably foreseeable or are too remote or far flung to be a consequence of the tort. The test of reasonable foreseeability of damage as laid down in the Wagon Mound’s case applies the foresight of a reasonable man in determining the:

1. Culpability, that is, blameability or responsibility of a defendant for damages if any; and accordingly his liability to compensate the plaintiff; or
2. Remoteness of damage because the damage is far flung or unrelated and therefore excuse the defendant from liability.

The definition of a reasonable man

In simple terms, the reasonable man in any given case, is the reasonable man in the shoes of the tortfeasor, that is, a reasonable man or person in the position or station in life as the tortfeasor in the case at hand. See Adigun V. A.G. Oyo State (1987) 1 NWLR pt.53, p.678 at 720 per Eso JSC.

The test of reasonable foreseeability of damage or remoteness of damage in detemining responsibility is an objective test, whereby the law puts a hypothetical reasonable man into the shoes of the defendant. The question then becomes what consequences of the tort are reasonably foreseeable to a reasonable man in the shoes of the tortfeasor. Once the reasonably foreseeable consequence is determined, the line is drawn thereat to exclude the consequences or damages that are too remote. The court then proceeds to hold the defendant liable for such damages which a reasonable man in the position of the defendant should have foreseen as the likely consequences of the tort in question.

Therefore the test of reasonable foreseeability or remoteness of damage is restrictive in scope and limits the extent of a defendant’s liability. Thus, damages may be established by the plaintiff, but a defendant may not be held liable unless such damage is found to be reasonably foreseeable.

Affirmation of the Reasonable Foreseeability Test

By virtue of the fact that the Privy Council is strictly not part of the English court system, the decision of the Privy Council in the Wagon Mound’s case establishing the test of reasonable foreseeability, had only persuasive influence on English courts, until it was subsequently affirmed by the House of Lords in 1963 in the case of Hughes V. Lord Advocate (1963) AC 837 HL. In that case the House of Lords stated that the test of remoteness of damage established in the Wagon Mound’s case, which makes a tortfeasor liable only for the reasonably foreseeable consequences of his tort, was the correct statement of the law.

In Hughes V. Lord Advocate, the House of Lords made an addition to the test of reasonable foresight by adding that, once the consequence of a conduct is foreseeable, the precise chain, sequence of events, or circumstances leading to the said foreseeable consequence need not be foreseeable or envisaged, so long as:

1. The damages or consequences of the tort are within the sphere of reasonable foreseeability or contemplation; and
2. The damages or consequence is not entirely of a different kind which no one can reasonably foresee or contemplate.

In other words, the damages must be reasonably foreseeable for there to be liability, but the precise sequence of events leading to the damage need not be foreseeable. That is to say, once the consequence is foreseeable, the circumstances leading to it need not be foreseeable for the defendant to be liable. A defendant is liable so long as the damages are not of an entirely different kind which a reasonable man will not contemplate. The defendant need not foresee all the possible manners in which his conduct can  cause injury. What is required in law is that, some kind of injury is foreseeable and the injury which resulted is a kind that is reasonably foreseeable.

Let us now consider the facts of some cases.

Overseas Tankship (U.K) Ltd. V. Mordock & Eng. Co. Ltd. (No. 1): The Wagon Mound’s case (1961) All ER 404 PC; (1966) AC 388.

The defendant appellants negligently discharged fuel from their ship into Sydney harbour, Australia. The fuel was carried by tide into the plaintiff/respondent’s wharf where the employees of the plaintiff were welding. A piece of cotton floating in the midst of the fuel was ignited by sparks from the welding operation. The floating oil burnt and the fire severely damaged the wharf and the ship which the plaintiff/respondents were repairing.

The Judicial Committee of the Privy Council held that the defendants appellants neither knew nor ought to have known that the oil spilt was capable of catching fire when spread over water. They could not reasonably have foreseen that the oil they discharged would catch fire, which would damage the plaintiff’s wharf, even though the damage was the direct consequence of their negligent oil spillage. The damage was too remote and not reasonably foreseeable and they were not liable for it. The test of liability for the damage done by the fire was the foreseeability of injury by fire and as a reasonable man would not on the facts have foreseen injury by fire, the defendant appellants were not liable.

However, the appellants were liable for fouling up the respondents slipways since the fouling was a reasonably foreseeable consequence of the discharge of the oil. In this case, Viscount Simmonds in the Privy Council said that:

“It does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or menial, which results in some trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and however grave, as long as they can be said to be direct.”

The liability of a tortfeasor is thus limited to the damages which are foreseeable by a reasonable man, as Pollock CB rightly said much earlier in Greenland V. Chaplin (1850) 5 Exch. 243 at 248 thus:

“A person is expected to anticipate and guard against all reasonable consequences, but he is not…expected to anticipate and guard against that which no reasonable man would expect to occur.”

The test of reasonable foreseeability laid down as the basis of liability in the law of tort in the Wagon Mound’s case (Supra), has been followed since then not only by English courts, but by courts in all common law countries. Reasonable foreseeability or remoteness of damage as laid down in this case, is almost the same in tort as in the law of contract.

In Hughes V. Lord Advocate (Supra), two children went to explore a shelter which was covering a man-hole that was opened for repairs in a street. The shelter was unattended but marked by lighted paraffin lamps. A lamp was accidentally kicked by one child into the man-hole and there was an explosion which caused burns to one of the children. It was held that the defendants were liable. Accident by burns by the lamps was reasonably foreseeable, even though explosion was not reasonably foreseeable.

But in Doughty V. Turner Manufacturing Co. Ltd. (1964) 1 QB 518, the plaintiff who was an employee of the defendant company was wearing an asbestos cement covering. A fellow employee of the plaintiff let the plaintiff slip into a cauldron of molten metal. At that time, it was not known that asbestos cement coming into contact with molten metal would cause an explosion. An explosion followed and the plaintiff was injured. In a suit for damages, the English Court of Appeal held that though the accident was a direct result of the action of the defendant’s servant, the damage was not reasonably foreseeable and therefore the defendants were not liable.

Also in Glasgow Corp. V. Muir (1943) AC 448, two picnickers were carrying a tea urn through a passage of the defendant corporation’s tea house. For a reason which was not explained, one of the picnickers slipped and children buying sweets at a corner in the passage were scalded by the hot tea, which splashed from the urn. An action by the children in negligence against the defendant failed because harm by tea was not reasonably foreseeable.

CONCLUSION

Trespass is the unauthorized intervention with a person’s property or his possession. Where it is trespass to a person, it could take the form of battery, assault, or false imprisonment. Where it is his property, it could take the form of trespass to land, detinue or conversion.

SUMMARY

This unit has thought the learner;

1. The basic concept of trespass in the Law of torts
2. The tort of assault, elements of assault and essentially the purpose o the law of assault.

TUTOR MARKED ASSIGNMENT

1. Why is there immunity from liability for perjury?
2. Who is a reasonable man in law?

            REFERENCES

1. Bodunde Bankole, Tort: Law of Wrongful Conduct: Lipservice Punishment (1998), Lagos.
2. Fidelis Nwadialo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996).
3. John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd, London. Sweet & Maxwell.
4. Street: The Law of Torts Sweet & Maxwell (1977), London
5. Kodilinye & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.
6. The Criminal Procedure Code of the Northern States of