Torts Additional

THE LAW OF TORTS Nature of the Law of Torts/Definition It is very difficult to provide a definition of tort because the Law of Tort covers a wide range of situations including physical harm both to the person and property; injury to a person’s reputation, dignity or liberty; affecting a person’s use and enjoyment of land and affecting a person’s financial interest. In broad terms a tort may be defined as a breach of duty fixed by law, such duty being owed to persons generally and for which the main remedy is an award of damages. The main aim of the Law of Torts is to compensate persons or provide a remedy to persons who have been harmed by the conduct of other persons. The harmful conduct may be intentional, careless or accidental. The person who commits a tort is called a tortfeasor. When a tort is committed it is the injured individual and not the public who sues. The law allows the victim to claim money/ damages to compensate for the commission of the tort. The benchmark of tort is reasonableness and the courts decide which injuries are actionable. To succeed in tort a plaintiff must usually prove actual injury (injury to person, property or reputation) and legal injury (injury recognized by law). However, some torts are actionable with only proof of legal injury. These are torts actionable per se eg. trespass and libel. For these there needs to be no proof of actual damage. Differences between Tort and the Criminal Law 1 . 2 . 3 .

Criminal Law Main purpose is to protect the public at large by punishing the offender. State prosecutes the offender and imposes sanctions (fine or imprisonment) Victims are not usually compensated

Tort Main purpose is to protect the victim Individual sues since a tort is usually a civil wrong Victims compensated by damages

Although there are fundamental differences between the Criminal Law and Tort, there are some acts which are both crimes and torts eg. assault, battery, false imprisonment. Sometimes a tortfeasor may be ordered to pay damages at a higher rate than the sum needed to compensate the victim in order to punish his/her behaviour and provide a deterrent to others. Similarly, a criminal offender’s punishment may involve compensating the victim of the crime.

Where an act is both a tort and a crime the criminal issue is usually resolved first. Differences between Tort and Contract Law 1 . 2 . 3 . 4 . 5 . 6 . 7 .

Contract Law Contractual rights can only be enforced by parties to the contract one against the other. The parties to a contract determine the extent of their obligations and duties based on the terms of the contract. Contractual liability is concerned with nonfeasance i.e. failing to perform an obligation promised in the contract. Liability in contract is strict, i.e. it is not necessary to prove fault on the part of the defendant. All that must be shown is breach of a term. The law of contract protects future benefits Limitation period begins to run from the time of the breach In contract damages are designed to put the plaintiff in the position he would have been in if the contract had been carried out, i.e. it puts the plaintiff in the position he would be after performance of the contract. Damages are therefore intended to fulfil the plaintiff’s expectation of benefit from the contract.

Tort Rights in tort are available to all persons and so any injured person can sue. Rights and obligations in tort are imposed by law. Liability in tort is generally concerned with misfeasance i.e. loss caused as a result of a positive act by the tortfeasor. Most torts require an element of fault on the part of the defendant eg. negligence. Tort compensates for damage caused. Limitation period does not run until some harm or damage occurs. Tort is designed to protect the status quo, thus the aim of damages in tort is to put the plaintiff in the position he would have been in if the tort had not been committed. It therefore restores the plaintiff to the position before the tort.

There is sometimes overlap between contract and tort. -

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parties to a contract are subject to the underlying rules of contract imposed by law eg. Sale of Goods Act, Hire Purchase Legislation some duties in tort can be varied by agreement eg. duties owed by an occupier of premises to his lawful visitors. Liability in tort can be excluded altogether by consent-the maxim volenti non fit injuria would apply which means an act to which a person consents cannot be an injury eg. taking part in a boxing match. The consent must however, be without fear, force or fraud. Some acts may be both contractual and tortuous eg. A contracts to transport B’s goods and due to A’s negligence the goods are lost or damaged. A will be liable to B for both breach of contract of carriage and for the tort of negligence.

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Some areas of tort and contract have the same rules eg. fraudulent and negligent misrepresentation, remoteness of damages.

Differences between Tort and Constitutional Law Constitutional Law focuses on the rules governing the relationship between the individual and the state. It provides remedies to compensate an individual for the infringement of his fundamental rights by the State. Tort on the other hand focuses on

NEGLIGENCE RESULTING DAMAGE Having proved that the D owed a duty of care to him and that the D was in breach of that duty, the P must then prove that he has suffered damage for which the D is liable in law. In other words, he must show that the injuries or damage complained of are a direct result of the D’s act of negligence. There are two things to be considered: a) Factual causation b) Remoteness of damage in law

Factual causation The question to be answered is- Did the D’s breach of duty in fact cause the damage? It is only where the answer to this question is yes, that the D may be liable to the P. In determining this issue the courts apply the “but for “ test i.e. if the damage would not have happened “but for” the D’s negligent act then the act will be taken to have caused that damage making the D liable. Barnett v Chelsea and Kensington Hospital Management Committee [1968] 1 All ER 1068 the P’s husband, after drinking some tea experienced persistent vomiting for 3 hours. He was sent home by a doctor in the casualty department without being examined or treated, and told to go home to bed and consult his doctor the next day. He died from arsenic poisoning 5 hours later. The court held that breach of duty did not cause his death. There was evidence that even if he had been examined it was too late for any treatment to save him and therefore it could not be said that but for the hospital’s negligence he would not have died. McWilliams v Sir William Arrol and Co. Ltd [1962] 1 WLR 295- a steel erector was killed when he fell from a building on which he was working. Had he been wearing a safety harness he would not have fallen. His employers were under a statutory duty to provide safety harnesses for all their employees working on high buildings. Nevertheless, they were held not liable since they proved that, on previous occasions when safety harnesses had been provided, the P had never bothered to wear one. The inference

therefore was that even if a harness had been provided on the day of the accident, the P would not have worn it. Thus, it could not be said that the failure to provide a harness was the cause of death.

Remoteness of Damage The law sets limits to the extent of a person’s liability for the consequences of his negligence . The P can only recover for damage which was a reasonable foreseeable consequence of D’s act. In Wagon Mound No 1 [1961] AC 388 the Privy Council held that damage is too remote if a reasonable man would not have foreseen them. In this case the Ds negligently discharged oil from their ship into the harbour where the Ps were carrying out welding operations at their wharf. Hot metal from the welding operations set fire to some cotton waste floating on the oil beneath the wharf. The waste set fire to the oil and the wharf was severely damaged. The Privy Council found that since on the evidence the Ds neither knew nor ought to have known that the oil was capable of catching fire when spread on water, they could not reasonably have foreseen that their act of discharging the oil would have resulted in the Ps’ wharf being damaged. The damage was thus too remote and they were not liable for it. The court laid down the principle that-provided that some damage is foreseeable the D is liable for all the direct consequences of his act, whether these consequences are foreseeable or not. In other words, provided that the P can prove for example, that his injuries are the direct result of the D’s negligence and the initial injury is reasonably foreseeable, he will be entitled to recover damages for the full extent of the injury suffered. A tortfeasor must take his victim as he finds him. This principle is known as the “thin skull” or “egg shell skull” principle. The D cannot say in his defence that the person he has injured would not have suffered such serious harm if he had been a ‘normal person.’ Thus for example, one who carelessly inflicts a minor cut on a haemophiliac with the result that the latter bleeds to death, will be fully liable for the consequences even though a normal person would have suffered little injury. In Smith v Leech Brain and Co (1962) 2 QB 405 D negligently inflicted a burn on P’s lip. Owing to a pre-malignant cancer condition in the tissues of the lip, cancer developed killing P. D was held fully liable for the death. Brewster v Davis (1992) Barbados-D negligently drove into the back of P’s car. P suffered no physical injuries but became anxious and nervous. She was suffering from a disease known as lupus nephritis and the stress and anxiety caused by the accident

worsened her condition which ultimately resulted in acute renal failure. D was held liable for all the consequences of the renal failure. Crandall v Jamaica Folly Resorts Ltd (1998)- P, a guest at the Ds’ hotel, fell from an unstable chair in the hotel bar and sustained injury which necessitated two operations. P was obese and after the second operation he suffered a heart attack. D was held fully liable for the consequences including the heart attack. Another aspect of the principle that a tortfeasor must take his victim as he finds him is the rule that if the D injures a high income earner or a particularly valuable item of property, he cannot argue that he could not have foreseen that the amount of the loss would be so great and he will be liable for the full loss of earnings of the victim or the full value of the item of property. The harm which was foreseeable must be of the same type and class as that which actually occurred. Thus for eg., if D carelessly allows an 11 year old boy to handle his gun and the boy drops the gun on to the P’s foot and injures it. D will not be liable to the P for the injury because the type of harm which was foreseeable was damage by shooting. However, so long as the damage which occurs is of the same kind as that which was foreseeable, it does not matter that the precise sequence of events leading to the damage was not foreseeable. In Hughes v Lord Advocate (1963) AC 837 the Ds left a manhole in the streets uncovered and protected only by a tent and paraffin lamps. A child climbed down into the hole and as he was coming out kicked over one of the lamps which fell into the hole, causing an explosion by which he was burned. Since it was foreseeable that a person could be burnt by the lamps the Ds were held liable although the burning did not occur in a way that they contemplated. Nottage v Super Value Food Stores Ltd(1997) Bahamas- armed robbers shot and injured P, who was employed by Ds as a store manager, when he went to open the Ds supermarket one morning. The Ds were held liable since they did not take precautions to protect the P, such as providing an accompanying security guard, since they did foresee that there would be armed robbers at their food store.

Liability for Nervous Shock The courts have been reluctant to recognize psychiatric injury as a damage which can be compensated. The P can recover for psychiatric illness which is the result of D’s negligence but he cannot recover for grief or sorrow. In order to recover for nervous shock P must either: 1. have suffered shock accompanied by physical injury Page v Smith (1995)- D negligently caused a minor accident which caused P’s nervous condition to return. D was liable since some personal injury was reasonably foreseeable.

2. be put in fear of physical injury and suffers shock as a result Dulieu v White (1901)- P feared for her safety when D’s horses ran towards her. It was reasonably foreseeable that P may suffer shock as a result of fear for her personal safety.

3. be put in fear for the safety of others or property Note here that here P must prove a close bond of love and affection between himself and the victim or property; that his proximity to the accident or its immediate aftermath was close and that he witnessed the accident through his own unaided senses ( viewing on television or being told of the accident apply in limited circumstances). McLoughlin v O’Brian (1982)- P suffered psychiatric injury for seeing her family (injured by D’s negligent driving) at hospital and untreated 2 hours after the accident. D was held liable since coming across the immediate aftermath was equivalent to being at the scene of the accident. Attia v British Gas Plc (1988)- P suffered nervous shock consequent on witnessing damage to her house. The court said P could recover provided that damage was reasonably foreseeable. 4. be a rescuer whose presence at the scene was reasonably foreseeable Chadwick v BRB (1967)- P helped in the aftermath of a rail disaster and suffered psychiatric injury. D was liable eventhough P was not related to any of the victims of the crash. McFarlane V EE Caledonia Ltd (1994)- P, who had a history of depression, suffered psychiatric shock when he witnessed a disaster. D was not liable since P was not sufficiently involved in the rescue operation.

OCCUPIERS’ LIABILITY LIABILITY UNDER STATUTE In Jamaica, the liability of occupiers of premises to persons visiting their premises is governed by the Occupiers’ Liability Act. An occupier may be defined as a person having possession or control of premises sufficient to place him under a duty of care. There is no requirement that the occupier should have any legal or equitable interest in the land, or that he should be the sole occupier, provided that he has sufficient control over the premises to prevent the damage. Premises include land, buildings, fixed and moveable structures such as vessels, vehicles and aircrafts.

Liability to Visitors The common duty of care is owed to all visitors to the premises. Any person who is not a trespasser qualifies as a visitor. Thus visitors include: people expressly invited on the land (invitees), people who have implied permission to be on the land (licensees), people who have a right to enter premises under common law or statute eg. the police or utility officers (JPS, NWC) and people entering as a result of a contract entitling them to do so. Trespassers are not protected by statute and special rules apply to them. Under the statute, the common duty of care owed to visitors is defined as “a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.” The occupier of a house for example, should ensure that ceilings and stairs are in an adequate state of repair and that electrical fittings such as light switches are in a safe condition. The occupier of land should cover open holes or put up clear warning signs or fence off the danger. The occupier of a ship will be in breach of his duty of care if he fails to provide adequate lighting for walkways inside the vessel. Children

The occupier must allow for children to be less careful than adults and so safeguard or remove allurements. The occupier must therefore have regard to the fact that what may not be a danger to an adult might well be a danger to a child eg. children may be tempted to eat brightly coloured but poisonous berries in a garden (as happened in one case) or to play with a disused vehicle in a yard, and if a child is injured thereby the occupier may be liable for failing to remove the objects or at least to take reasonable precautions to prevent children from tampering with them. The law presumes that very young children are under the care and control of their parents and so occupiers are not always required to take precautions to safeguard them. Skilled Professionals The occupier is entitled to assume that a skilled, professional worker doing a job on the premises such as a carpenter, electrician or window cleaner will exercise sufficient care for his own safety when carrying out his work and will guard against the dangers normally associated with work of that kind. Where a person has a contract for using the premises eg. a guest at a hotel, there is a contractual warranty that the premises are as safe as reasonable care and skill would have made them. Where a person enters on his own interest with the express or implied permission of the occupier (licensees) eg, a person collecting for charity, there is a duty to warn that person of any concealed danger or trap of which the occupier has actual knowledge. Note that the common duty of care is only owed where the visitor is using the premises for the purposes for which he is invited or permitted to be there. Thus, if he is injured while using the place in an unauthorized way or for an unauthorized purpose the occupier will not be liable Where injury to the visitor is caused by the faulty work done by an independent contractor employed by the occupier, the occupier will not be liable if: 1) He acted reasonably in employing the contractor to do the work 2) He took reasonable steps to satisfy himself that the contractor was competent and that the work was properly done

Excluding Liability The occupier may exclude liability in the following ways: 1) Pleading defences such as volenti non fit injuria (consent) and contributory negligence 2) By agreement or otherwise with the visitor i.e. he may escape liability by posting a notice at the entrance to the premises to the effect that every person enters at his own risk and should have no claim against the occupier for any damage or injury however it is caused.

Note that merely to give a warning of a danger to a visitor will not absolve the occupier from liability unless in the circumstances the warning was sufficient to enable the visitor to be reasonably safe in using the premises. The warning must be sufficiently clear and precise. Note also that the occupier cannot exclude liability if he has no permission to exclude someone eg a JPS or NWC person who has a right to enter. Weekes v AG (1986) Barbados- P slipped and fell on a wet floor while walking towards the check-in counter at the airport. There were adequate notices warning of the wet floor. It was held that the warning given to the P by the D was sufficient to enable the P to be safe. The accident was caused by the negligence of the P in failing to observe the notices and to take care for her own safety. D was not liable.

COMMON LAW LIABILITY At common law the occupiers of premises owe an invitee a duty to exercise reasonable care to prevent damage to the invitee from an unusual danger known to the occupier or of which the occupier ought to have known. An invitee is a person who enters premises “upon business which concerns” the occupier and upon his invitation whether express or implied, eg a customer in a shop. An unusual danger is one which is not usually found in carrying out the task or fulfilling the function which the invitee has at hand. Whether a danger is unusual or not depends on the character of the danger, the nature of the premises on which it is found and the range of experience with which the invitee may fairly be credited. Thus, a defective ceiling in a shop might be an unusual danger for a customer but not for a pest control expert. Rambaran v Port Authority of Trinidad and Tobago (1991)- the court held that a crane was a necessary piece of equipment in a container terminal and was not an unusual danger to a truck driver who was delivering containers. Cox v Chan (1991) Bahamas- In this case where it was alleged that a ramp giving access to a shop was an unusual danger, the shop owner’s duty was “to ensure that the P was aware of the danger either by posting a notice or taking other reasonable steps to let him know of its existence or by taking reasonable steps to prevent him from falling on the ramp. Kirpalani v Hoyte (1972) Trinidad- P slipped and fell while shopping in the Ds’ supermarket. It was proved that the P had fallen in a part of the store where water, dripping from an air conditioner, had collected on the floor. The Ds had placed sheets of newspaper on the floor to absorb the water, but after some time the paper became saturated and the water continued to collect there. The floor was made of terrazzo tiles which have a smooth surface and the presence of the water made it “slippery and potentially dangerous to customers.” It was held that the P’s fall was caused by the wet floor which was an unusual danger known to the Ds. The Ds were liable in negligence.

Mc Sweeney v Super Value Food Store Ltd (1980) Bahamas- the Ds were held liable for failing to exercise reasonable care in keeping the floor of the supermarket clear of unusual dangers. P had slipped and fallen on some liquid and suffered injuries.

Liability to Trespassers The liability of an occupier to trespassers is governed by common law principles. In British Railway Board v Herrington (1972) the court laid down the principle that an occupier does not owe a duty of care to trespassers but he does owe a duty of “common humanity” or a duty to act “in accordance with the common standards of civilized behaviour.” It is sufficient for the occupier to make reasonable endeavours to keep out or chase off the potential or actual intruder who is likely to be or who is in a dangerous situation. Reasonable actions or endeavours include:  Erection and maintenance of suitable notice boards or fencing or both  Giving of suitable oral warnings  Practice of chasing away trespassing children The occupier must therefore abstain from reckless or deliberate injury to the trespasser. If the trespasser, in spite of the occupier’s reasonable endeavours to deter him insists on trespassing or continuing his trespass, he cannot hold the occupier or any one but himself responsible for injuries resulting from the trespass which is his own wrongdoing. In Herrington, P, a child aged 6, strayed through a hole in D’s fence and was burned on the electrical line. D knew of the hole in the fence and had seen children playing on the line. D owed a duty of care to P in that, although P was a trespasser, the known danger and the known presence of children should have prompted D to repair the fence. Kirton v Rogers (1972) Barbados- P, a 8 years old boy, was struck on the forehead by a stone expelled from the D’s land where explosives were being used for the purpose of quarrying. It was held that on the assumption that P was a trespasser, D ought to have anticipated that potential trespassers were likely to be present and was under a duty to take reasonable steps to avoid the danger to them. This duty could be fully discharged only by posting someone to warn persons approaching to keep out of the range of the blasting until the danger was past.

Trespassing Employees An employer owes a duty of care at common law to his employees to take reasonable care to provide a “safe place of work, but this duty is confined to those areas of the workplace which the employee is authorized to enter. If he enters apart of the premises which he knows to be “out of bounds” to him he will generally be treated as trespasser in those “out of bounds” areas. Any person with no permission to enter a certain part of premises is a trespasser on that part of the property.

Alcan Jamaica v Nicholson (1986)- a welder, during his lunch break, left his area of work at a bauxite installation and entered a location called a “precipitation area” in search of cigarettes. He suffered a serious injury to the eye caused by caustic soda splashing into it. The employer/occupier was not liable since the welder trespassed into an out of bounds area and he was well aware of the dangers of caustic soda. Manchester Beverages Ltd v Thompson (1999) Jamaica- An employee was injured by the careless operation of a forklift truck in a warehouse on his employer’s premises which he had no permission to enter. He had gone to have a shower. The court said this injury could have happened to any worker and so did not necessarily result from the P’s trespassing. The Ds were liable. Tolerance of repeated entries may amount to permission to enter. This converts a trespasser to a licensee even if there is a “no trespassing” notice. Note that a contractor, though he may be a non-occupier of premises, owes a duty to take reasonable care to avoid harm to persons he or she could reasonably expect to be affected by his or her work.

DEFAMATION The tort of defamation protects a person’s interest in his reputation. A defamatory statement may either be libel or slander. Libel is a defamatory statement in a permanent form, most usually consisting of written words in a newspaper, book, pamphlet, printed notice or letter. It also includes defamatory paintings, cartoons, photographs, effigies, films and computer derived exposure such as e-mail messages, bulletin boards and the worldwide web. In Jamaica by virtue of Sec 3 of the Defamation Act, defamatory words in radio and television broadcasts are treated as being in a permanent form and therefore constitute libel. Slander is a defamatory statement in a transient form, principally by means of spoken words or gestures. Libel is always actionable per se i.e. without proof of damage. The law presumes that damage has been caused to the person’s reputation. In slander, on the other hand the plaintiff usually has to show that he suffered loss eg., that as a result of the defamatory statement he has been dismissed from his employment or that he has been refused credit by a bank. The mere loss of friends or associates is insufficient. In Sunanansingh v Ramkerisingh (1897) D, at an East Indian Meeting, made imputations to the effect that P had cohabited with his sister-in-law and got her pregnant. P claimed that as a result of the statement he was banished form the society of members of his caste. The court found that slander was not proved. Note however, that in some cases slander is actionable without proof of damage in the same way as libel. These cases include the following: 1) Imputation of crime This occurs where D alleges that P has committed a crime punishable by imprisonment or corporal punishment such as theft, drug offences, blackmail or corruption in public office. Imputation of a crime punishable by a fine is not within the exception. To be actionable per se there must be a direct assertion of guilt. A mere allegation of suspicion is not sufficient. Thus to say “P is a thief” is actionable but to say “he is suspected of having stolen” is not. The words used by the D must be looked at in the context in which they were spoken in order to determine what was actually imputed because words which would be defamatory

when taken by themselves may not be defamatory when taken together with other words spoken by the D. Thus to say “P is a thief” would be actionable per se but this would not be so if followed by “the dress she sold me is not worth that much.’ Words spoken will not be actionable if they constitute mere vulgar abuse eg. where words are spoken in heat or anger and persons hearing them would view them in that way. In Griffiths v Dawson (1968) the D said to the P “you Griffiths are a criminal; you are sabotaging my life, stopping me from getting work.” The judge held that no reasonable person hearing the words in that context would believe that D was accusing P of having committed a crime. There was thus no slander. 2) Imputation of certain diseases It is actionable per se to allege that P is infected with certain contagious or repulsive diseases, since this would tend to cause other persons to shun or avoid him. The category includes contagious diseases such as AIDS, leprosy or other contagious skin diseases. In Murray v Williams (1936) where D called P “a consumption coolie man.” this was not actionable. In Allen v Miller (1967) D alleged that P was suffering form a venereal disease. The court found that this was actionable per se. 3) Imputation of unchastity or adultery In Ramkhelawan v Motilal (1967) D called P, who was a respectable married woman, “a nasty whore and prostitute” in the presence of many persons and accused her of having brought many men to her house. This was actionable per se. Note that words which do no more than raise a doubt about P’s chastity are not actionable. Thus where D said to P’s husband “you may not be Oscar’s father” which suggested that P had an adulterous union from which the child was born, the words were seen to merely raise a doubt about P’s chastity and were not actionable per se. 4) Imputation affecting professional or business reputation This means that the words must have been ‘spoken of a person following a calling, and spoken of him in that calling, which impute to him unfitness for or misconduct in that calling.” Examples of such statements are that a banker is fraudulent, that a doctor is incompetent, that an engineer has no technique, that a lawyer knows no law or that a trader is insolvent. In Jones v Jones (1916) it was held not actionable per se to say that a schoolmaster had committed adultery with a married woman employed at the school as a cleaner. This was so because, although the statement imputed moral misconduct to the schoolmaster and would certainly be injurious to him in his profession, it did not allege misconduct “in the course of his duties as a schoolmaster.” The damage complained of as a result of a defamatory statement must not be too remote. P may recover compensation only for those consequences of D’s defamatory statement which are foreseeable.

What is a Defamatory Statement? One which tends : a) to lower a person in the estimation of right-thinking members of society generally, or b) to expose a person to hatred, contempt or ridicule; or c) to cause other persons to shun or avoid him; or d) to discredit a person in his trade, profession or calling; or e) to damage a person’s financial credit A statement which tends to lower a person’s reputation not in the minds of rightthinking members of society generally, but only in the minds of a particular section of the community, such as the members of a private club, is not defamatory. In Byrne v Dean (1937) the P and D were both members of a golf club. P alleged that D had defamed him by putting up a notice in the club to the effect that the P had made a report to the police about certain illegal gaming machines kept in the club premises. It was held that D’s statement could not be defamatory since, although the club members may think less of P for “sneaking” to the police, right-thinking members of the public would approve rather than disapprove of a person who reported a criminal offence to the police.

Examples of Defamatory Statements A statement 1. that a businessman was involved in the cocaine trade 2. that a corporation’s cheques had bounced 3. that P had “stolen money” 4. that a married woman was a prostitute 5. that P had associated with a person infected with the AIDS virus 6. that a university lecturer had committed plagiarism 7. that a lawyer was dishonest and incompetent 8. describing a police officer as “bat” which imputes ignorance, stupidity and eccentricity

What must the plaintiff prove in a case of defamation? In order to succeed in a defamation action P must establish 1. that the words were defamatory 2. that they referred to him 3. that they were published to at least one person other than the P himself

1. Words must be defamatory A determination must be made firstly as to whether the words are capable of being defamatory, and secondly as to whether the words are in fact defamatory in the particular circumstances. If the words are clearly defamatory on their face the court will usually find that they are defamatory in the particular circumstances. However,

where the words used are capable of either a defamatory or non-defamatory meaning (which means they are not clearly defamatory on their face), the court must decide what the ordinary person of average intelligence would understand by the words. Where words are not clearly defamatory on their face, the P may allege that there was use of an innuendo. Innuendoes are of two types: a) true or legal innuendo b) false or popular innuendo In a true innuendo the words are innocent on their face but the P alleges that they are defamatory because of some special facts or circumstances not set out in the words themselves but known to the persons to whom the words were published. Eg, a statement that “P is a frequent visitor at No.5 Dove Lane” is perfectly innocent on its face, but it may be defamatory if published to persons who know the special fact that No.5 Dove Lane is a brothel, for then the statement would carry the innuendo that P is associated with prostitutes. In Cassidy v Daily Mirror Newspapers (1929) a newspaper published a photograph of Mr C and Miss X with the caption ‘Mr C and Miss X, whose engagement has been announced.’ These words were completely innocent on their face but were held to be defamatory of Mrs C, since persons who knew that she was living with Mr C might believe that she was not Mr C’s wife and had been immorally cohabiting with him. A false innuendo is merely a defamatory inference that reasonable persons might draw from the words themselves. The words are taken to be defamatory on their face, and unlike in the true innuendo, there are no special facts or circumstances known to persons to whom the words are published. Eg, where a bank wrongfully returns a cheque stamped ‘return to drawer” such a statement is defamatory because it carries the inference that the drawer is either a bad financial risk or is dishonest.

2. Reference to the Plaintiff In most cases the P will be mentioned by name, but this is not a necessary requirement. It is sufficient if he is mentioned by his initials, his nickname, if he is depicted in a cartoon, photograph, referred to by description or identified by his office or post. It may also be sufficient if a particular group of which he is a member is mentioned. The test is whether a reasonable person might understand the defamatory statement as referring to the P. In AG v Milne (1973) it was held that there was sufficient reference to P where a radio broadcaster referred to him as “one irresponsible businessman who pledges half a million dollars on placards, posters and other subversive material.” In Jordan v The Advocate Co Ltd (1998) the newspaper published an article in which it alleged that senior medical practitioners at the Queen Elizabeth Hospital in Barbados were spending more time playing gulf than attending to their duties at the hospital. P, who was a senior consultant and a prominent amateur golfer, brought a libel action claiming that although his name was not specifically mentioned, reasonable readers would understand that the article referred to him. The court found that persons knowing the special fact that P was the only doctor involved in the medical care of patients who played golf, would reasonably understand the article to refer to him.

Where a defamatory statement is made of a group of persons (eg all lawyers are thieves), no individual member of the group can sue unless the group is so small that what is said about the group is necessarily said about each member of it, or the individual member can show that he was particularly pointed out. In Bodden v Bush (1986) a defamatory article in a newspaper which referred to the “elected government in the Cayman Islands as ‘dictators and communists’” was held to refer to each and every member of the Executive Council which consisted of four persons.

3. Words must be published The P must prove that the defamatory statement was ‘published” i.e. that it was communicated by the D to at least one person other than the P himself. Every repetition of a defamatory statement is a fresh publication and creates a fresh cause of action. Thus for example, where libel is contained in a newspaper, the following persons may be liable- the writer of the article, the editor, the publisher, the printer, and even the newspaper vendor. There is no publication if the defamatory words cannot be understood by the person to whom they are addressed, eg. where the person is blind and cannot read, or is illiterate or where he does not understand the language in which the words are said or written The D is not responsible for publication to a person to whom he did not intend to publish and to whom he could not reasonably foresee that the words would be published-eg where a third party unexpectedly overhears the words or where a father wrongfully opens a letter addressed to his son. A person should however expect that if he sends a defamatory letter to a businessman at his place of business his secretary might open it and read it. Communication of defamatory matter by a husband to his wife or vice versa is not publication since both are treated as one person. The original publisher of a defamatory statement is not liable for damage caused by republication of the statement by a third party over whom he has no control but he will be liable republication is foreseeable, if he authorized or intended the republication or where there was an obligation on the person to republish the words.

DEFENCES TO DEFAMATION Unintentional Defamation Sec 6 of the Defamation Act in Jamaica provides where words are published innocently a defendant may escape liability for damages if he is willing to publish a reasonable correction and apology called an “offer of amends.”

Innocent Dissemination Persons who innocently disseminate defamatory information (eg booksellers, museums, libraries, newsvendors) will not be liable if they can show that at the time of dissemination of the material they did not know that it contained defamatory information and that they were not negligent in not knowing.

Justification (Truth) D has a complete defence if he can show that the defamatory words spoken about P are true in substance. Eg, if D says that P is a lunatic, D will not be liable in defamation if he can prove that P was confined in a psychiatric hospital. Justification will still succeed if the D is inaccurate in minor details. In Alexander v North Eastern Railway (1865) D published a notice that P had been fined 1 pound or three weeks imprisonment for failure to pay his train fare. Justification succeeded although P had actually been fined 1 pound or two weeks imprisonment. If D makes two allegations against P but can only prove the truth of one, justification may still succeed as a defence. Eg, if D says that P stole certain property and that P received property knowing them to be stolen justification will avail D as a defence if he proves only the first allegation. Where a person repeats/re-publishes a defamatory statement he cannot simply prove that the rumour existed. He must prove the truth of the statement contained in the rumour if he wants to plead justification as his defence.

Fair Comment The D will not be liable if he can show that the statement made was a fair comment on a matter of public interest. To plead this defence however, certain conditions must be satisfied: a) The matter commented on must be one of public interest such as the affairs of the government, affairs of public institutions (eg, hospitals, prisons, schools), churc matters, the conduct of public officials, published books or public performances (plays, musicals etc), the conduct of private businesses which affect the community at large and any other thing which may fairly be said to invite public comment. b) The statement must be a comment or opinion and not an assertion of fact c) The comment must be based upon facts- it cannot be based on untruths d) The comment must be honestly made ie, it must be a genuine opinion even if it appears biased, prejudiced, irrational or exaggerated. However, the D is not allowed to cast defamatory aspersions on the personal character of the P. e) The comment must not be actuated by malice ie, a corrupt or wrong motive. Clapham v Daily Chronicle (1944)- P (a composer, performer and teacher of music) took part in a public performance in which he played a number of solo piano pieces by well known composers. The D newspaper published a review of the recital captioned “LONDON PIANIST DISAPPOINTS AUDIENCE” describing how people sulked and complained over the disappointing performance. P brought a libel action. The Ds pleaded fair comment. The court found that the words used were defamatory of the P but the defence of fair comment succeeded. British Guiana Rice Marketing Board v Peter Taylor (1967)- Two farmers told the Defendant publishing company that they had received bounced cheques from the RMB as

payment for rice they sold to it. The Ds wrote an article in the paper captioned “RMB CHEQUES BOUNCED” describing that the Marketing Board had no money to pay the farmers. The court found that the defence of fair comment could not succeed because the article consisted of statements of fact and not comment.

Absolute Privilege Absolute privilege is a complete defence to an action for libel or slander, however false or defamatory the statement may be and however maliciously it may have been made. It arises in circumstances such as proceedings in the legislature or in a court of law where public policy demands that persons should be able to speak or write with absolute freedom, without fear of liability for defamation. Absolute privilege covers the following statements: 1. statements made in the course of and with reference to judicial proceedings by any judge, juryman, advocate, party or witness- covers things said in relation to the case 2. statements made in proceedings of the legislature- includes statements made in the House of Representatives or in the Senate in debates or in committee meetings 3. communications made by one officer of the state to another in the course of his official duty- includes high ranking officers of state such as Ministers, Ambassadors, High Commissioners, high ranking Police Officers. 4. reports of judicial proceedings- the report must be fair and accurate, published contemporaneously with the proceedings and must not include blasphemous or indecent matter. Qualified Privilege Qualified privilege applies to a much wider set of circumstances than absolute privilege. This defence is defeated if the P can show that in publishing the words D was actuated by malice (spite, ill will). Qualified privilege applies in the following circumstances: i.

ii.

iii.

Statements made in the performance of a legal, moral or social duty- D must show that he had a legal, moral or social duty to communicate the defamatory matter to a third party and the third party had a corresponding interest in receiving it. Eg, where a former employer of the P gives a damaging reference as to P’s character to a prospective employer or statements made by a police officer in the course of his enquiries into a suspected crime. Defamatory words contained in music are not privileged however, because singers have no moral, legal or social duty to communicate such words to the public. Statements made to the proper authorities in order to obtain redress for public or private grievances- a letter from a member of the public to the minister of Health complaining of malpractice in a hospital or to the Education Authority alleging immoral conduct on the part of a school principal. Statements made in self defence- the statement must not unnecessarily attack the private life of the P and should only respond to the attack and nothing else.

iv.

Where a newspaper or radio or television company makes a fair and accurate report of proceedings in the legislature or in a court of law- the report must be accurate and fair. It cannot allege that certain statements were made when they were not in fact made. Privilege is forfeited if it is exceeded i.e. if the defamatory words are published more extensively than the occasion requires. Malice on the defendant’s part also destroys the defence of privilege. In determining the damages/compensation that a Plaintiff should get in a case of defamation the court will look at such things as: the extent of the publication, the social or professional status of the P, the conduct of the D during and after trial, whether D made an apology to P, whether was actuated by malice, whether P has a generally bad reputation.

LIABILITY FOR ANIMALS Tortious liability for animals may be examined under four headings: 1) 2) 3) 4)

Liability for cattle trespass Liability for dangerous animals (the ‘scienter action’) Liability for dogs Liability in negligence

Note that there are also other ways in which a person may incur tortuous liability for his animals. For eg, the keeper of pigs, goats, chickens may be liable in private nuisance if the stench from the animals unreasonably interferes with his neighbour’s enjoyment of land [Walwyn v Brooks (1993)] or he may be liable in public nuisance if his animals are allowed to obstruct the highway and thereby cause particular damage to the Plaintiff. A person who deliberately sets his dog upon another will be liable for battery as if he had struck the person himself and a person who trains his parrot to defame someone may be liable for slander.

LIABILITY FOR CATTLE TRESPASS This occurs where cattle in the possession or control of the defendant are either intentionally driven on to the P’s land or stray on to such land independently. The owner of cattle is here liable for all damage done by such cattle when trespassing on the land of another. Damages are therefore recoverable for harm to the P’s land and crops caused by the trespass as well as injury to his animals and chattels and injuries inflicted upon the P himself. Cattle here include cows, donkeys, horses, sheep, pigs, goat, poultry but does not include dogs. Liability for cattle trespass in Jamaica is governed by the Trespass Act. In East Coast Estates Ltd v Singh (1964)- cattle belonging to the D strayed on to the Ps’ land and damaged “pangola grass” which the Ps were cultivating. D argued that he was driving his cattle along the road and rain began to fall. He was forced to drive his cattle into a nearby common from which, through no fault of his, they strayed on to the Ps’ land. It was held that liability in cattle trespass is strict, and the D was liable despite the fact that there was no intention or negligence on his part.

Parties in a case of cattle trespass Usually, only a person with an interest in land (the occupier) can sue for cattle trespass. In Aziz v Singh (1944)- the Ds’ steers trespassed upon Y’s land where P’s steers were tethered (with Y’s permission) and inflicted wounds upon P’s animals. P could not recover for cattle trespass because although he had permission to tie animals on the land he did not have an interest in the land. He was able however, to recover damages on the ground of scienter. In Jamaica however, the Trespass Act seems to allow persons who are non-occupiers/ persons with no interest in land to bring an action for damage to their property on another person’s land by cattle trespass.

The person to be sued in a case of cattle trespass is usually the owner of the animals. However, where the owner puts his animals to pasture on another persons land the landowner may be liable since he is in control and possession of the land and all that is on it including the animals. In Thompson v AG (1969)- cattle owned by X and Y were put to pasture on an estate belonging to and in the possession of the Ministry of Agriculture, from which they trespassed upon P’s land and caused damage. The Government was found liable on the ground that they had a duty to keep the animals from straying.

Defences In Jamaica the Trespass Act provides a defence for the owner of trespassing livestock who has properly fenced his land. In this case the owner of trespassing cattle will not be liable unless the P can show that he also had put up sufficient fencing to keep out trespassing livestock and despite those efforts the animals still trespassed on to his land and caused damage. In West v Reynolds Metal Co. (1968)- the D fenced the two sides of his property which bordered the P’s land but did not fence the other sides. This was held not to be sufficient fencing and he was liable when his animals trespassed on P’s land. Other defences include volenti non fit injuria, Plaintiff’s own default in failing to perform a duty to fence imposed by law and act of God.

Trespass from the highway There is no liability in cattle trespass where animals lawfully on the highway, without negligence on the part of the person bringing them there, stray on to the P’s land and cause damage. The law presumes that owners of land near to a public road have consented to run the risk of the dangers incident to the ordinary, non-negligent use of the road. If however, the P has fenced his land which is near to the road so as to keep out livestock the D will be liable for trespass if the animals stray from the road on to the P’s land. The responsibility is on the D to show that his animals were lawfully on the highway.

LIABILITY FOR DANGEROUS ANIMALS (THE SCIENTER ACTION) Under this heading animals are classified into two categories: a) Animals ferae naturae, that is, those belonging to a naturally fierce, wild or dangerous species such as lions, tigers, gorillas, bears and animals b) Animals mansuetae naturae, that is, those belonging to a naturally tame, harmless and in most cases domesticated species such as horses, donkeys, cows, sheep, goats, cats, dogs. The owner or keeper of an animal ferae naturae is strictly liable for harm which it causes, and it is irrelevant whether or not the particular animal has shown a propensity/ tendency for that kind of harm in the past, nor does it matter whether the animal has been taken

from the wild and tamed as a pet. Thus for example, in Behrens v Bertram Mills Circus (1957) the keepers of a “tame” elephant in a circus were held liable when the animal, without any aggression, knocked down and injured the P. The owner or keeper of an animal mansuetae naturae however, is liable for harm caused by the animal only if: a) The particular animal has shown a propensity/tendency in the past to do that particular kind of harm b) The owner/keeper is proved to have had knowledge of that propensity Proof of knowledge of an animal’s vicious propensity is called ‘scienter’. Under the scienter principle the requisite knowledge of an animal’s vicious propensity must relate to propensity to do the particular kind of harm which caused the damage. Eg, if a dog attacks a man, it must be shown that the animal had a propensity to attack humans; it would not be sufficient to show a propensity to attack other animals. Note that it is not necessary to show that the animal had actually done the particular type of damage on a previous occasion. It is sufficient to prove that it had exhibited a tendency to do that kind of harm. Eg, in proving a dog’s propensity to attack humans it is sufficient to show that it habitually rushed out of its kennel, where it was chained and attempted to bite passersby. Where harm is caused by an animal mansuetae naturae, the propensity of the animal must be shown to be vicious or hostile. The defendant will not be liable if the animal was merely indulging in a propensity towards playfulness or some other natural behaviour eg. frolicking of high spirited horses or dogs chasing each other even across traffic. In McIntosh V McIntosh (1963) P was riding his jenny along a track when D’s jackass jumped onto it in an attempt to serve it. Both P and the jenny were injured. There was evidence that on a previous occasion the jackass had attempted to serve the jenny and that D knew about this. D was held not liable since the jackass, in attempting to serve the jenny, was merely displaying a natural propensity. In Aziz v Singh (1944) D was found to have had knowledge of the vicious propensity of his steers to attack other animals and was therefore held liable for fatal injuries inflicted by them on P’s steers. In Williams v Martins (1920) the owner of a horse who knew of its vicious propensity to attack other horses was held liable for injuries inflicted on the P’s horse which had been pastured with it. In Sims v McKinny ((1989) and Reid v Tyson (1993) where the Ps were bitten by dogs belonging to the Ds the action in scienter failed because in both cases there was no evidence that the Ds knew of any propensity in their animals to attack people. In Ambrose v Van Horn (1967) P’s sow was attacked in its pen and killed by D’s dog. There was evidence that on at least three previous occasions the dog had attacked other animals and D was aware of this. D was thus liable for the value of the sow. Liability under the scienter action rests on the person who harbours and controls the animal. In most cases the owner of the animal is also the keeper but in some cases the

occupier of premises may be liable for injuries caused by animals not owned by them but over which they exercise control and care. Defences to liability under the scienter action include: a) Volenti non fit injuria/consent- this most often applies where persons whose livelihood it is to deal with dangerous animals eg zoo keepers and animal trainers, are injured in the course of their work. b) Contributory negligence- this applies for example if the P at the time of the injury was trespassing on the D’s land, or where the P brings the injury upon himself eg, by stroking a zebra at a zoo (Marlor v Ball) or teasing a dog (Sycamore v Ley). c) Act of a stranger- this only applies where the owner of the dog shows that he had done everything he could have done to prevent third parties from meddling with it.

LIABILITY FOR DOGS Dogs are not covered in the definition of cattle and so a defendant cannot be liable in cattle trespass for damage caused by his dogs in straying onto the P’s land. In Jamaica the Dogs (Liability for Injuries by) Act provides that the owner of dogs are liable for injury done by the dogs to any person or animal whether or not the dog showed a propensity to do harm and whether or not the owner was negligent. Injury by dogs is therefore a strict liability offence. In Brown v Henry (1947)- P, a 12 year old boy was attacked by D’s dog. There was evidence that the dog had been set upon the P by two small boys. D was liable. Salmon v Stewart (1950)- P was riding his bicycle along a public street when D’s dog, which was sitting on a wall by the road, jumped on P’s knee and caused him to fall off his bicycle and fracture his foot. It was not known whether the dog intended to attack P or was just being playful. D was liable. Anderson v Ledgister (1955)- D’s dog entered P’s land and killed P’s goats. There was no proof of any propensity in the dog to do this harm. D was liable. Smith v Gaynor (1976)- D’s dog killed P’s pig. D was liable Wilson v Silvera (1959)- P went to D’s house to leave a present. The gate to the premises was closed but the front door was open. P called and was unsure whether the response was “come in” or “coming”. As P stood on the steps leading to the front door two dogs dashed through the open door and savagely attacked her. D was liable and P was not a trespasser nor was she contributorily negligent.

LIABILITY IN NEGLIGENCE

A keeper of animals owes a duty of care to ensure that it does not become a source of harm to others. The kind of injury must however, be foreseeable. In Draper v Hodder (1972) P, an infant, was attacked and badly injured by a pack of Jack Russel terrier dogs which suddenly dashed out of D’s premises. P could not recover damages in cattle trespass since dogs are not cattle, he could not recover under scienter since D had no knowledge of a vicious propensity on the part of the dogs. He succeeded in negligence however, on the ground that D knew or ought to have known that Jack Russel terriers could be dangerous if allowed to roam about in packs. If D brings an animal onto the road he has a duty to take reasonable care to ensure that it does not cause damage there. In Coley v James (1964) D’s servant brought a cow onto a busy road and negligently left it unattended so that it trotted off home and in the course of doing so collided with and damaged P’s car. D was liable in negligence. In Blackwood v Chen (1958) D’s mule was being led a long the road with a rope. It was dark, and being startled by the lights of P’s van, the animal reared up and struck and damaged the front of the van. D was not liable every effort had been made to control the animal and D was in no way negligent.