Other Principles of Liability in the Law of Tort

TABLE OF CONTENTS

1.0       Introduction

2.0       Objectives

• Main content
• De minimis non curat lex
• Intentional damage is never too remote
• A tortfeasor takes his victim as he finds him
• The principle of strict liability

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignments

7.0       References and further reading

INTRODUCTION

Apart from the principle or requirement of damage which involves the application of the test of reasonable foreseeability to determine the extent, amount and scope of the liability of a defendant, there are other principles of liability.

In other words, in addition to the test of reasonable foreseeability or remoteness of damage, there are other principles of liability which help a court to determine the liability of a tortfeasor for his tort.

These principles which are exceptions to the test of remoteness of damage include:

1. De minimis non curat lex
2. Intentional damage
3. A tortfeasor takes his victim as he finds him(thin skull rule)
4. The principle of strict liability

We shall examine these principles of liability in this unit.

OBJECTIVES

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

(i)  explain the principles of liability in the law of tort.

MAIN CONTENT

De minimis non curat lex

De minimis non curat lex is a Latin phrase which means, the law does not concern itself with trifles. The law does not bother about trifles, indefinite, minor, small, worthless or trivial and insignificant things. Therefore the court does not concern itself with speculative, hypothetical, imaginary, academic, abuse of court process, frivolous or vexatious issues and will usually ignore such. Accordingly, the law or court may overlook an insignificant fact or thing in deciding an issue or case. Thus, if a litigant brings an action alleging an irrelevant matter or a small or trivial breach of his right, the court may strike out or dismiss the claim for being a triviality at the onset. However, where the claim was not so dealt with at the onset and the plaintiff goes on to prove his claim, the court applying this principle may go ahead to award nominal damages in disdain of the action. See the following cases:

Delaroy-Hall V. Tadman (1969) 2 QB 208; Regent V. Francesca (1981) 3 All ER 327;and Smith V. Scott (1973) Ch. 314.

Intentional damage

The general rule of law is that a tortfeasor is usually liable for his intentional tort. Thus, intentional harm or mischief is an actionable tort, whether the act is malicious, innocent or intended as a joke, etc is irrelevant. Accordingly, intended, intentional or malicious damage or harm is never too remote and will be compensated so long as the damage is foreseeable. Furthermore, the extent or magnitude of the damage need not be foreseeable by the reasonable man for it to be compensated.

Similarly, if A negligently knocks B down and unfortunately great injury is inflicted because as it is later discovered, B is unhealthy, prone to injury or has a “thin skull” or eggshell, A will not be excused by saying that if B had been a normal person, injury would not have resulted. Similarly, if D gives E a light blow which expectedly should only bruise E, but because E has a thin resistance “thin skull” or “egg shell” and he dies, the law will regard D as liable for E’s death. This rule applies to all persons with unusual health conditions, including haemophiliacs, that is, persons who tend to bleed severely as a result of the inability of the blood to clot easily. This principle is called the “unusual plaintiff’s” rule.

In Scott V. Shepherd (1773) 96 ER 525, at a market fair at Milbourne Port, England, the defendant Shepherd threw a lighted squib “firework” on the stall of one Yates. Willis, in order to protect the goods of Yates threw it away. It landed on the stall of Ryal who in turn threw it on. It hit Scott, the plaintiff in the face, exploded and blinded one of his eyes. Scott sued for damages. It was held that Shepherd was liable to Scott for injuries because he intended mischief or injury by throwing it at a shop. There was no break in the chain of cause. Shepherd should have expected that Willis and Ryal would react as they did.

Intentional harm is never too remote. The chain of events by which the damage occurred to the plaintiff need not be foreseeable. It is sufficient that the defendant intended mischief or injury and injury is reasonably foreseeable when he threw a firework at a trade fair. See also Wilkinson V. Downton (1897) 2 QB 57; and Janvier V. Sweeney (1919) All ER 1056 CA.

A Tortfeasor takes his victim as he finds him(“thin skull” rule)

This principle of liability is also known as the “egg shell” rule, “thin skull” rule or the “unusual plaintiff’s” rule. Under the egg shell principle, a tortfeasor “takes his victim as he finds him”. In other words, a tortfeasor is bound to accept his victim as he is. If the victim is healthy and strong and powerful fist blows do not cause him any harm, all fair and well. But on the other hand, if a victim is prone to injury, ill or weak hearted and just one light blow is enough to kill him or inflict permanent incapacity on the victim, it is unfortunately too bad for the tortfeasor, who nevertheless has to bear the consequences of his tort.

The general rule of law is that a person is taken as intending the natural consequences of his action. This principle of liability is an exception to the rule of reasonable foreseeability. Under the thin skull rule, a defendant cannot plead the medical condition of his victim as a defence, even though such condition makes the loss unexpected, unreasonable or not reasonably foreseeable.

In Smith V. Leech Braine & Co. Ltd. (1961) 3 All ER 115, the plaintiff’s husband was an employee of the defendant company. Through the defendant’s negligence, a piece of molten zinc flew out of a tank and inflicted a burn on the defendant’s lips. As a result of the fact that the tissues of his lips were in a pre-malignant condition, cancer developed on the site of the burn from which he died three years later. In a suit by the wife for damages for negligence, the court held that the defendants were liable, although the man’s death was clearly not a foreseeable result of the accident. However, the defendants have to accept the pre-malignant condition of the deceased body as it was.

In R V. Blaue (1975) 3 All ER 446, the accused stabbed a victim, who as a result required blood transfusion. The victim was told that the transfusion would enable recovery. She refused the transfusion on the ground of her religious beliefs and she died. The accused was held guilty, applying the “thin skull” rule of liability. He who uses violence on another person takes the victim as he finds him. The refusal of the victim to take blood transfusion did not break the connection between the action of the accused and the death of the victim.

Limit to the unusual plaintiff’s rule

However, the “egg shell”, “thin skull” or “unusual plaintiff’s” rule seems to apply to disability or weaknesses existing before the tort in question and not to disabilities arising after the tort.

See the case of Morgan V. Wallis (1974) 1 LL Rep. 165, where the plaintiff suffered injuries to his back whilst trying to avoid a wire rope thrown by a stevedore onto the barge where he was working at a port. Liability for the plaintiff’s injuries was admitted by the defendants, who were his employees because they should have designed or have a better system of working. However, they contested the amount of damage payable because the plaintiff had unreasonably refused to undergo tests and medical operation out of fear of both processes. The highest estimate of the chances of success of an operation was 90%.

In a suit by the employee for damages for injuries, the court held that the defendants were not liable. The defendants had established that the plaintiff’s refusal to undergo tests and operation was unreasonable, as the estimates by a surgeon have shown that the operation would have been successful on a balance of probabilities. Where there was no pre- existing disability, physical, mental, psychological or otherwise, a defendant did have to take a victim as he found him.

A person is taken as intending the natural consequences of his action

The general rule of law is that a person is taken as intending the natural consequences of his action. Therefore, the common law rule is that a tortfeasor takes his victim as he finds him except there are other extenuating or mitigating factors in his favour.

In Martindale V. Duncan (1973) 2 All ER 355 CA, the plaintiff’s car was damaged in a collision with the defendant’s car as a result of the negligence of the defendant. The plaintiff delayed repairs to his car pending approval from the defendant’s insurers and his own insurers. The defendant’s insurers wished to consult independent engineers for advice and did so. After about nine weeks, the defendant’s insurers approved the estimate of repairs. The plaintiff’s insurers also did a few days later. Repairs commenced one week after these approvals. The plaintiff claimed damages for loss of use of his vehicle for ten weeks and for cost of the hire of a substitute vehicle for the period. The defendant argued that the plaintiff was in breach of his duty to mitigate his loss by failure to effect immediate repairs and for waiting to see whether an insurance company would pay.

The English Court of Appeal held that the defendants were liable. The plaintiff was not in breach of his duty to mitigate his loss and he had acted reasonably in the circumstances. The losses suffered by the plaintiff were the natural consequences of the defendant’s negligent conduct.

Strict liability in Tort

Strict liability means liability without fault. It is responsibility for a wrong without the requirement of negligence, fault or intention on the part of a wrongdoer. Strict liability is liability based on the breach of the law without more. Strict liability is common in respect of extra-hazardous activities, product liability, etc.

As a general rule, in strict liability torts, the test of reasonable foreseeability of damage as a basis for liability is not applicable. Thus, in some torts, a defendant is held strictly liable for his torts, that is, the defendant is liable once the tort occurs whether or not the act happened accidentally, innocently, negligently or intentionally. Thus, strict liability torts are torts which attract strict liability and for which a tortfeasor is held liable once the act is done or occurs, irrelevant of why the offender committed it or his state of mind at the time of its occurrence because the law strictly or absolutely prohibits the commission of the tort or conduct. Accordingly, the occurrence of the tortuous act in itself renders the wrongdoer liable without more and without regards to his state of mind at the time.

Examples of strict liability torts include:

1. Product liability or consumer protection
2. Liability for animals; and
3. The rule in Rylands V. Fletcher (1868) LR 3 HL 330; 37 LJ Exch.

We shall briefly examine these strict liability torts.

Product Liability: Consumer Protection

Product liability is the liability of a producer, retailer, importer or supplier for any loss or injury caused by his product whether due to its defect or some other reason. In the area of product liability, strict liability is common as in most cases, the alleged tortuous acts are strictly prohibited by statute.

Thus, in Pearks, Gunsten & Tee Ltd. V. Ward (1902) 2 KB 1, the appellant company was held liable for the acts of its employees who sold its fresh butter mixed with water. Explaining on the strict liability nature of consumer protection laws in England, Channel

1. in this case said that:

“The legislature has thought it so important to prevent the particular act from being committed that it absolutely forbids

it to be done; and if it is done, the offender is liable to a penalty, whether he has any mens rea (guilty mind) or not and whether or not he intended to commit a breach of law.”

See also the following cases:

Gammon V. A.G. Hong Kong (1985) AC 1; Pharmaceutical Society V. Storkwain (1986) 1 WLR 903; R V. Bradish (1990) 2 WLR 223; and R. V. British Steel Plc. (1995) 1 WLR

1356.

Liability for Animal.

The general rule of law is that dangerous animals should not be brought into contact with persons, exposed or given opportunity to injure persons. Therefore, a keeper is liable for the act of a dangerous animal, even though the defendant keeper never intended the harm that was caused nor was reckless in letting it happen. Therefore, a person keeps an animal at his own peril. A dangerous animal is an animal that is not usually domesticated and is likely to do mischief, cause serious damage or even death if not restrained. See  Cummings V. Granger (1975) 1 WLR 1330; and Curtis V. Betts (1990) 1 All ER 769.

In the law of tort, liability under the rule in Rylands V. Fletcher (supra) is strict, in the absence of a lawful excuse.

Strict Liability Torts and Criminal Liability

In Nigeria however, where a strict liability tort is also a crime, it is a moot point whether the courts will apply strict liability in construing the provisions of such law. This is in view of section 24 of the Criminal Code Act, which makes mens rea, that is, a guilty mind or criminal mind or criminal intention, a requirement for criminal liability under the Criminal Code Act; and section 56 of the Criminal Procedure Act, which makes the requirement of mens rea applicable to every criminal proceedings in Nigeria, save where the relevant criminal law specifically ousts the requirement of a guilty mind.

Motive, Intention, Malice and Liability in Tort

Motive is the reason for the conduct of a person. It is why a person did or did not do a thing. Motive is what caused the doer to act or fail to act. It is what made a tortfeasor to do what he did. As a general rule, motive is not relevant for determining liability in tort. Generally, in order to determine liability, the issue is whether a tort has been committed; and where proof of damage is necessary for a successful claim, whether damage was done.

Therefore, if the conduct of a tortfeasor is unlawful, the fact that he committed the tort for good reason will not excuse him from liability. Likewise, if the conduct of a tortfeasors lawful, the fact that he had a bad motive or reason for doing it will not render him liable. In other words, a good motive will not excuse a tort and a bad motive will not make an innocent or lawful act a tort.

Malice means acting from a bad motive. Ordinarily, malice means ill will or wickedness. It is doing something with ill will, wickedness of heart, spite or recklessness. It is doing something with a bad motive or bad reason. In legal terms, malice means two things. It means:

• Doing a wrong thing intentionally or without lawful excuse. It is wilful and conscious wrongdoing; or
• Doing any act with a bad, improper or illegitimate motive. It is doing a thing with a bad motive or with any motive the law abhors or that is wrong.

Intention is the reason for the conduct of a person. (See Cunliffe V. Goodman (1950) 2  KB 237; R. V. Moloney (1985) 1 All ER 1025; and R V. Hancock & Shankland (1986) 1 All ER 641). Intention is the purpose, goal or aim of a conduct. It is the goal of the conduct under question. In the law of torts, the general rule is that the motive, malice or intention for doing an act is irrelevant. Therefore, an innocent or good motive, reason, malice or intention will not exonerate the commission of a tort. Conversely, bad motive, malice or bad intention on the part of a defendant will not make a lawful act unlawful.

Therefore, as a general rule, the law of tort is more concerned with looking at the result or effect of an act or conduct, whether the conduct is a tort and where necessary whether damages resulted, than with the motive, malice or intention that inspired the wrongdoer. Thus, as a general rule, the law of tort looks at an act whether it is a tort and should be compensated and not at the motive, malice or intention, whether it is wrong or excusable. The following cases illustrate this general principle:

Bradford Corporation V. Pickles (1896) AC 587.

In this case, the defendant, Pickles, with a view to inducing Bradford Corporation to buy his land at a high price sank a shaft or borehole on his land to collect water and thereby interfered with the water flowing in undefined channels into the corporation’s reservoir. The corporation applied to court for an injunction to restrain him from interfering or collecting the underground water in his shaft.

The court held that an injunction would not lie. The defendant was entitled as owner to draw from the underground water on his land. His “malice” if any, in trying to force the purchase of the land was irrelevant. No use of property which is legal if done with a proper motive can become illegal if done with an improper motive.

An innocent intention is not a defence to a tort. It may only serve to reduce the amount of damages that may be awarded.

In Wilkinson V. Downton (1897) 2 QB 57; (1895-9) All ER 984, the defendant knowing it to be untrue but meaning it as a joke, told the plaintiff that her husband had been involved in an accident and had both his legs broken. The plaintiff on hearing this suffered a nervous shock and was ill as a result. The plaintiff sued the defendant for false and malicious representation of facts.

It was held that the fact that the defendant told the story of accident to the plaintiff as a joke was irrelevant, the plaintiff had been harmed and she was entitled to damages. Intentional physical harm is a tort and whether the act is malicious or a joke is irrelevant.

The English Court of Appeal applied the decision in Wilkinson V. Downton (supra) in the case of: Janivier V. Sweeney (1919) All ER 1056

The defendants who were private detectives told the plaintiff, a lady, that unless she procured certain letters of her mistress for them, they would disclose to the authorities that her fiancé who was an internee was a traitor. They knew that they had no such evidence that the fiancé was a traitor. She sued for damages for the physical illness she suffered as a result of the nervous shock occasioned by the defendant’s unwarranted threats.

The court held that the defendants were liable. There was a wilful act or statement by the defendants calculated to cause physical injury to the plaintiff and causing such harm was a tort. The fact that they issued the threat without any basis or intention to carry it out was irrelevant. This was so because the general rule is that intended or intentional harm is a tort. Whether the act was malicious, innocent or a joke was irrelevant.

SELF ASSESSMENT EXERCISE 1

What do you understand by “malice”.

The Relevance of Motive, Malice or Intention in Tort

The general rule of law is that motive, malice and intention are irrelevant for tortuous liability. However, when is motive, malice or bad intention relevant in tort? As an exception to the general rule of liability above, motive, malice and intentional or wilful wrongdoing are relevant in several instances in tort. This is so for:

1. Successful claim in some torts: for instance malicious prosecution and injurious falsehood.
2. Malice when established in a case, usually bars a defendant from successfully relying on certain defences that otherwise would have been available to him; for instance, in the law of defamation, malice may bar the defence of qualified privilege and fair comment. Also, malice may make an otherwise reasonable act a nuisance. See Hollywood Silver Fox Farm V. Emmett (1936) 2 KB 468.
3. The presence of malice may lead to an award of aggravated damages in appropriate circumstances. For instance, in defamation, where a defamatory statement is proved to have been made out of malice, an award of aggravated damages when claimed by a plaintiff could be awarded by court.

The torts where improper motive, malice or bad intention are relevant include:

1. Malicious prosecution
2. Nuisance
3. Defamation
4. Conspiracy

We shall briefly examine these.

Malicious prosecution

Malicious prosecution is intentionally setting the criminal law in motion against a person without just cause. In other words, it is intentionally causing criminal proceedings to be brought against another person without legal justification. If it is later discovered that A caused B to be prosecuted by law enforcement agents without legal excuse, out of malice, then B after his acquittal may sue A for the tort of malicious prosecution. In a claim for the tort of malicious prosecution, the fact that the prosecution was brought with a bad motive, malicious or intentionally to harm or without legal excuse, is an essential ingredient which a plaintiff needs to establish for a successful claim for compensation.

Nuisance

In the tort of nuisance, the presence of malice, spite or bad intention in the defendant’s conduct is a relevant factor the court will consider in determining the reasonableness or unreasonableness of the conduct that is causing a nuisance an consequently the liability of a defendant for nuisance.

Thus, in a claim for nuisance, the plaintiff will sometimes succeed if he shows that the defendant’s malice turned an otherwise reasonable act into an unreasonable act or nuisance. Accordingly, in the tort of nuisance, certain conducts which ordinarily would not be viewed as nuisance may be regarded as a nuisance if they are done unreasonably or with malice. Thus in some instances, malice is evidence of unreasonableness on the part of the defendant and vice versa. See the case of Christie V. Davey (1893) 1 Ch. 316.

Defamation

Malice is relevant in the tort of defamation. In a claim for defamation, if the plaintiff proves malice, it will bar the defences of qualified privilege or fair comment. Thus, the presence of malice in the defamatory statement or act will bar the defendant from successfully relying on the defence of qualified privilege. It will also deny the defendant from relying on the defence of fair comment as the statement can no longer be said to be fair comment but malicious. Furthermore, the presence of malice may lead to the award of aggravated damages.

Conspiracy

The tort of conspiracy or civil conspiracy is where two or more persons act together without lawful justification for the purpose of intentionally causing damage to a plaintiff whereby actual damage occurs to the plaintiff. Where a plaintiff alleges the tort of conspiracy, the presence of malice or the improper motive of the alleged act is a necessary ingredient for a successful claim against the several defendants or joint tortfeasors.

However, a civil conspiracy or combination of person is justified if the main purpose of it is the:

1. Self interest of the members; or
2. Protection of the trade of the members rather than a willful desire to cause damage to the plaintiff. See Mogul Steamship Co. V. McGregor Gow & co. (supra).

To succeed in a claim for the tort of conspiracy, a plaintiff must among other things, establish that he has suffered damage. Trade conspiracy is a common tort. However, it should be noted that civil conspiracy is not necessarily coterminous with vicarious liability.

CONCLUSION

Torts is a branch of private Law which with its companion Law of Contract spells out the legal rules, which regulate civil obligations, for example, ear accident, bursting of water pipelines, noxious films, poor processing, damages by animals and many unpleasant events – spark off litigation in tort. It must be stressed at this stage that there is no set of clear and static rules which are tailor made. For instance, application to any set of facts that may occur. The principles and the rules of tort of Law constantly change. This is not to say that the rules of Law to Torts is good for one case only. Assault and Battery have existed as torts as far back as 1348 and therefore one can safely predict that rules and inordinate contact with the person of another without the latter consent will continue to be redressed in an action for battery. But only few years ago, manufacturer’s liability for harm caused by defective products was much more limited that it is now.

SUMMARY

In this unit, we learnt about the tort of defamation and the ingredients of the torts of defamation. The tort of conspiracy, nuisance and malicious prosecution treated under this unit deal mainly with the principle of liability in the law of tort.

TUTOR MARKED ASSIGNMENT

What do you understand by the” unusual plaintiff’s” rule?

REFERENCES

1. Bodunde Bankole Tort: Law of Wrongful Conduct: Lipservice Punishment (1998),
2. Fidelis Nwadalo: 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 publisher, London. Sweet &
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 of the Northern States of