MENTAL ELEMENTS IN TORTS
1. MOTIVE
2. INTENTION
3. MALICE
4. MALFEASANCE, MISFEASANCE AND NON-FEASANCE
5. FAULT
1. MOTIVE - Is a reason of doing something, or a state of a mind which inspires to do an act. Motive is not essential element in the law tort while in criminal cases is very important. So if something is illegally it can not be legally because of motive. Motive is relevant in some situations like Defarmation(abuse) and conspiracy(a secret plan by group to do something unlawful)
Cases;-
The Mayor of Bradford v Pickles (1895) AC 587
{ Pickle alikua anamiliki ardhi ambayo maji yanapita na kusambaa kwenda kwenye jiji la Bradford, Pickle aliweka kizuizi ambacho kilisababisha maji yasifike kwenye hilo jiji ili kulilazimisha hilo jiji linunue ardhi yake au jiji liyalipie yale maji kwake. Mayor wa jiji aliamua kumshtaki Pickle kwa kitendo hicho cha kulisababishia jiji madhara} [ Madai ya Mayor yalikataliwa kwakua Pickle anahaki ya kufanya chochote kwenye Ardhi yake ]
Facts;
Pickles owned a piece of land under which water flowed - water that flowed down to springs which were used to supply Bradford with water. Pickles sunk a shaft into his property to divert the flow of water allegedly to force the city to either buy his land or pay him for the water. The city of Bradford brought suit to have an injunction entered against his actions. The respondent was successful at the lower court
Issue;
Can a use of property which would be legal if due to a proper motive become illegal because it is prompted by a motive which is malicious(evil)?
Decision;
Appeal denied.
Reasons;
The court held that as long as Pickles had a right to take an action on his property, there is no way that can be converted to an illegal action, no matter what his motives. There was no reason why he should not demand that the city pay for his interests in the water beneath his land.
Allen v Flood [1898] AC 1
Facts;- A trade union official told an employer his members would not work alongside the claimants. The employer was pressured to get rid(free) of the claimants. For the loss of work, the claimants sued the trade union official. An important fact is that all the workers in the case were only hired day by day. Therefore, the trade union official had never threatened a breach of contract because the contracts began afresh with a new day's work.
Held;-
High Court;- Kennedy J presided over the trial where the jury found that the plaintiffs had suffered damage to the extent of £20 each, and assessed the damage accordingly.
Court of Appeal;- Lord Esher MR, Lopes LJ and Rigby LJ held that the action was maintainable against the district delegate(representative).
House of Lords;- The House of Lords held that even though there was a malicious motive, this could not render the conduct unlawful, because the effect actually complained of (not rehiring) was in itself entirely lawful.
2. INTENTION – According to Sir John Salmond “ Intention means the object or purpose for which the act is done, in intention the wrong doer has full knowledge of the consequences of his act which he wants to achieve.
Different between Intention and Motive.
Motive is the reason for doing something but Intention is the aim or plan of something. E.g;- The immediate(occurance) intention of a person may be to commit theft but the motive for the theft may be to buy food for his children or help a poor person.
General rule is that;- Motive and intention are irrelevant to determine person's liability in the law of tort, A wrongful act does not become lawful because the motive is good.
Cases;-
Wilkinson v. Downton 2 Q.B. 57 (1897).
{Downton alimtania Wilkinson kua mme wake kapata ajali, Wilkinson akapatwa na mshtuko, Wilkinson alimshtaki Downton ili apate fidia kwa mshtuko alioupata} [ Madai ya Wilkinson yalikubaliwa ]
Facts
As a practical joke, Downton (D) told Wilkinson (P) that her husband had been seriously injured in an accident and was lying in a ditch(drain,mtaro) with broken bones. Downton told Wilkinson that she was to bring two pillows to help carry him home. The effect of Downton’s statement was a violent shock to her nervous system resulting in weeks of suffering and incapacity. Wilkinson brought suit for damages resulting from her injuries and the jury returned a verdict(decision) in her favor. The defendant appealed on the grounds that the damage caused was merely nervous shock and therefore Wilkinson had no cause of action.
Issue
Can outrageous conduct that causes physical harm or mental distress give rise to a cause of action?
Holding and Rule
Yes. A party may seek recovery for outrageous(shockingly)conduct that causes physical harm or mental distress. In this case Downton willfully performed the act which caused harm to the plaintiff. The court held that there was little doubt that Downton’s actions would harm Wilkinson and it therefore must be assumed that he intended to produce these effects.
Disposition
Judgment for Wilkinson affirmed.
Sullivan v. O’Connor, 363 Mass. 579, 296 N.E.2d 183 (1973).
{ Sullivan ambae ni msanii aliweka mkataba na O'Connor amtengeneze pua yake, O'Connor akamuahidi Sullivan kua kurekebisha pua kutahitaji operation mbili tu, lakini ilifanyika operation tatu na bado pua ilizidi kua mbaya, Sullivan akamshtaki O'Connor akidai fidia ya pua yake } [ Madai ya Sullivan yalikubaliwa, hivyo akalipwa fidia ya pua yake ].
Facts: Sullivan (P), an entertainer, contracted with O’Connor (D), a plastic surgeon, for cosmetic surgery on her nose. O’Connor promised that only two surgeries would be necessary and that the nose job would enhance and improve Sullivan’s beauty. After three operations Sullivan’s nose had become asymmetrical(unbalanced) and looked worse than it had prior to the operations. Further improvement was impossible. P sued for breach of contract and negligence. The judge instructed the jury that P was entitled to only those damages resulting directly, naturally, proximately, and foreseeably from D’s breach, and other incidental expenses related to the operations. The trial judge instructed the jury to consider damages for disfigurement including the effects of this upon the mind of P, and to consider the fact that P was an entertainer and the effect this would have on her professional career. The judge also instructed the jury that pain and suffering were compensable for the third operation but not the first two, and that damages for lost earnings should not be included because no loss had been proven.
Held
The jury found for P on the breach of contract count and for D on negligence. P was awarded damages for out-of-pocket expenses and for the pain, suffering, and mental distress arising from the third operation. D appealed, asserting that pain, suffering, and mental distress are not proper damages for a breach of contract.
3. MALICE - the desire to harm someone; ill will.
Kinds of Malice;
a) Malice in Law
b) Malice in fact
a) Malice in Law – Means a wrongful act done intentionally and without reasonable and probable cause.
b) Malice in Fact – This means the improper motive which is not relevant in the law of tort. In the law of tort whether your intention is good or bad you still liable under the law of tort because the law of tort looks under the action, so whether motive is good or bad doesn't make something legal to be illegal.
Case;-
The Mayor of Bradford v Pickles (1895) AC 587
{ Pickle alikua anamiliki ardhi ambayo maji yanapita na kusambaa kwenda kwenye jiji la Bradford, Pickle aliweka kizuizi ambacho kilisababisha maji yasifike kwenye hilo jiji ili kulilazimisha hilo jiji linunue ardhi yake au jiji liyalipie yale maji kwake. Mayor wa jiji aliamua kumshtaki Pickle kwa kitendo hicho cha kulisababishia jiji madhara} [ Madai ya Mayor yalikataliwa kwakua Pickle anahaki ya kufanya chochote kwenye Ardhi yake ]
Facts;
Pickles owned a piece of land under which water flowed - water that flowed down to springs which were used to supply Bradford with water. Pickles sunk a shaft into his property to divert the flow of water allegedly to force the city to either buy his land or pay him for the water. The city of Bradford brought suit to have an injunction entered against his actions. The respondent was successful at the lower court.
Issue;
Can a use of property which would be legal if due to a proper motive become illegal because it is prompted by a motive which is malicious(evil)?
Decision;
Appeal denied.
Reasons;
The court held that as long as Pickles had a right to take an action on his property, there is no way that can be converted to an illegal action, no matter what his motives. There was no reason why he should not demand that the city pay for his interests in the water beneath his land.
Exception to the rule;-here Malice may become relevant.
1- Malicious prosecution (legal proceeding) – In this case the plaintiff has to prove that started the prosecution proceeding against him with Malice and not lawful purpose. Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing(following) a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution.
E.g;- Criminal prosecuting attorneys and judges are protected from tort liability for malicious prosecution by doctrines of prosecutor immunity and judicial immunity.
2- Injuries falsehood or Malicious falsehood is a false statement made maliciously that causes intentional damage to the claimant. Malicious in this case means the defendant either knew the statement was not true or did not take proper care to check. It is often covered under laws regarding defamation.
Cases;-
Wilkinson v. Downton 2 Q.B. 57 (1897).
{Downton alimtania Wilkinson kua mme wake kapata ajali, Wilkinson akapatwa na mshtuko, Wilkinson alimshtaki Downton ili apate fidia kwa mshtuko alioupata} [ Madai ya Wilkinson yalikubaliwa ]
Facts
As a practical joke, Downton (D) told Wilkinson (P) that her husband had been seriously injured in an accident and was lying in a ditch(drain,mtaro) with broken bones. Downton told Wilkinson that she was to bring two pillows to help carry him home. The effect of Downton’s statement was a violent shock to her nervous system resulting in weeks of suffering and incapacity. Wilkinson brought suit for damages resulting from her injuries and the jury returned a verdict(decision) in her favor. The defendant appealed on the grounds that the damage caused was merely nervous shock and therefore Wilkinson had no cause of action.
Issue
Can outrageous conduct that causes physical harm or mental distress give rise to a cause of action?
Holding and Rule
Yes. A party may seek recovery for outrageous(shockingly)conduct that causes physical harm or mental distress. In this case Downton willfully performed the act which caused harm to the plaintiff. The court held that there was little doubt that Downton’s actions would harm Wilkinson and it therefore must be assumed that he intended to produce these effects.
Disposition
Judgment for Wilkinson affirmed.
3- Defamation - is the communication of a false statement that harms the reputation(good name) of an individual, business, product, group, government, religion, or nation.
Cases;-
New york times co. v. Sullivan (1964)
Facts.;-
The Plaintiff was one of three Commissioners of Montgomery, Alabama, who claimed that he was defamed in a full-page which taken out in the New York Times. The advertisement was entitled, “Heed(pay attention) Their Rising Voices” and it charged in part that an unprecedented wave of terror had been directed against those who participated in the civil rights movement in the South. Some of the particulars of the advertisement were false. Although the advertisement did not mention the Plaintiff by name, he claimed that it referred to him indirectly because he had oversight responsibility of the police. The Defendant claimed that it authorized publication of the advertisement because it did not have any reason to believe that its contents were false. There was no independent effort to check its accuracy. The Plaintiff demanded that the Defendant retract(untrue) the advertisement. The Defendant was puzzled as to why the Plaintiff thought the advertisement reflected adversely on him. The jury found the ad libe lous per se( broadcast or written publication of a false statement about another which accuses him/her of a crime) and actionable without proof of malice.
Held;-
The jury found the ad libe lous per se and actionable without proof of malice. The jury awarded the Plaintiff $500,000 in damages. The Alabama Supreme Court affirmed. The Defendant appealed.
Kinds of defamation;-
a) Libel - a published false statement that is damaging to a person's reputation; a written defamation.
Cases;
New york times co. v. Sullivan (1964)
Facts.;-
The Plaintiff was one of three Commissioners of Montgomery, Alabama, who claimed that he was defamed in a full-page ad taken out in the New York Times. The advertisement was entitled, “Heed(pay attention) Their Rising Voices” and it charged in part that an unprecedented wave of terror had been directed against those who participated in the civil rights movement in the South. Some of the particulars of the advertisement were false. Although the advertisement did not mention the Plaintiff by name, he claimed that it referred to him indirectly because he had oversight responsibility of the police. The Defendant claimed that it authorized publication of the advertisement because it did not have any reason to believe that its contents were false. There was no independent effort to check its accuracy. The Plaintiff demanded that the Defendant retract(untrue) the advertisement. The Defendant was puzzled as to why the Plaintiff thought the advertisement reflected adversely on him. The jury found the ad libe lous per se( broadcast or written publication of a false statement about another which accuses him/her of a crime) and actionable without proof of malice.
Held;-
The jury found the ad libe lous per se and actionable without proof of malice. The jury awarded the Plaintiff $500,000 in damages. The Alabama Supreme Court affirmed. The Defendant appealed.
b) Slander - the action or crime of making a false spoken statement damaging to a person's reputation.
4- Malicious conspiracy - a secret plan by a group to do something unlawful or harmful.
Cases;-
United States v. Romero
The Facts
Defendant, a former police officer, entered into conspiracy with other delinquents to receive and possess stolen goods. He participated in cargo theft, received and possessed stolen goods. By his unlawful conduct he actually obstructed justice by knowingly making false statements, intentionally omitting and concealing required information.
Held;-
The appellate court determined that there was sufficient factual and circumstantial evidence to support defendant culpability. Evidence of his active participation in criminal venture by aiding and abetting was sufficient to show a conspiracy existed. He was aware of organized criminal activity and willfully joined the conspiracy. Defendant was liable.
Armory v. Delamirie
Facts
Armory (Plaintiff) was a window sweeper’s child.Armory found a jewel and brought the jewel to the Delamirie’s (Defendant) shop.The master of the shop offered the plaintiff money and took the stones without the finder’s authority.
Issue
When a person finds an abandoned property, does the finder have rights to that property against a 3rd party?
Holding
YES.
5- Nuisance - a person or thing causing inconvenience or annoyance.
Cases;-
Boomer v. Atlantic Cement Co (1970) N.Y.
Facts;-
The Defendant, Atlantic Cement Co. (Defendant), operated a large cement plant near Albany. The Plaintiffs, neighboring property owners (Plaintiffs) filed suit seeking an injunction and damages for injury to property from smoke, dirt and vibrations from the plant..Neighborhood property owners sued for damages and an injunction against a cement plant they alleged caused a nuisance.
Held;-
Both lower courts ruled that the Defendant maintained a nuisance, but found that the value of the Defendant’s operation outweighed( more significant than) the consequences of the injunction. Plaintiffs appealed
4. Malfeasance, Misfeasance and Non-feasance.
Malfeasance;- This is the commission of an act which is unlawful, such as which are actionable per se and do not require proof of intention or motive. In the law of tort there are some actions if you do them you will be liable of tort directly. Eg;- Trespass (enter someone's land or property without permission).
Misfeasance;- This means improper doing of some lawful acts or doing of an act which is lawful but doing it in wrong way.
E.g;- When a bus conductor beat somebody who hasnt a ticket in a bus, that is demanding lawful thing in wrong way.
Non-feasance;- This is the failure to performe obligations which a company or a prudent person is supposed to performe.
E.g;- The railway company is required to keep the platform in a good condition, if platform is in bad condition and passengers fall down, the railway company will be responsible.
Case;-
Rylands v Fletcher [1868] UKHL 1 House of Lords
{ Fletcher alikua anamiliki kiwanda kidogo, akaamua kujenga bwawa kwenye ardhi yake. Lile bwawa liliwekwa kwenye Machimbo ambayo yalikua hayatumiki, Maji kutoka kwenye bwawa yalikua yanapita kwenye mabomba ya machimbo ambayo hayatumiki na kusambaa kwenye Machimbo yanayotumika yaliyokua yanamilikiwa na Rylands na kusababisha uharibifu mkubwa} [ Mahakama ilimtaka Fletcher alipe fidia ya hasara alizozisababisha kwa Ryland ].
The defendant owned a mill(factory) and constructed a reservoir(pool) on their land. The reservoir was placed over a disused mine. Water from the reservoir filtered(passed) through to the disused mine shafts and then spread to a working mine owned by the claimant causing extensive damage.
Held:
The defendants were strictly liable for the damage caused by a non- natural use of land.
GENERAL DEFENSIVE OR JUSTIFICATION OF TORT
1.Volenti non fit injuria (Latin: "to a willing person, injury is not done"or “to one who volunteers, no harm is done”.) is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volentionly applies to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxerconsents to being hit, and to the injuries that might be expected from being hit, but does not consent to (for example) his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk."
Eg;- When you go to play a game of boxing or Karate, if it happened you are beaten there you cant sue that person for that.
Cases;-
I.Wooldridge V. Sumner [1963] 2 QB 43
{ Sumner alikua ni mpiga picha ktk mbio za farasi, alikua hajakaa jukwaani kwa mashabiki bali alikua maeneo ya uwanja ambapo mbio za farasi zinafanyika, wakati wa mashindano farasi wa Wooldridge aliacha njia na kuelekea sehem aliyokua amekaa Sumner, farasi alimfikia Sumner na kumjeruhi, Sumner alifungua mashtaka kumshtaki Wooldridge kwa uzembe na kushindwa kumdhibiti farasi wake} [ Mahakama iliamua kua Wooldridge hakua na hatia yeyote kwakua alikua analindwa na Volenti non fit injuria]
Facts
The claimant was a photographer at a horse show. He was situated within the ring of the horse show and not behind the barriers where the spectators(audience) were housed. He was on a bench with a Miss Smallwood who was a director of the company which employed the Claimant. He had been taking little interest in the proceedings and was not experienced in regard to horses. During the competition, one of the horses, Work of Art owned by the Defendant, came galloping(running) at great speed towards the bench where they were sitting. The Claimant took fright(fear) at the approach of the galloping horse and attempted unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse which passed three or few feet behind the bench, and was knocked down. The Claimant brought an action in negligence arguing the rider had lost control of the horse and was going too fast. The defendant raised the defence of volenti non fit injuria.
The claimant was a photographer at a horse show. He was situated within the ring of the horse show and not behind the barriers where the spectators(audience) were housed. He was on a bench with a Miss Smallwood who was a director of the company which employed the Claimant. He had been taking little interest in the proceedings and was not experienced in regard to horses. During the competition, one of the horses, Work of Art owned by the Defendant, came galloping(running) at great speed towards the bench where they were sitting. The Claimant took fright(fear) at the approach of the galloping horse and attempted unsuccessfully to pull Miss Smallwood off the bench. He stepped or fell back into the course of the horse which passed three or few feet behind the bench, and was knocked down. The Claimant brought an action in negligence arguing the rider had lost control of the horse and was going too fast. The defendant raised the defence of volenti non fit injuria.
Held:
There was no breach of duty so the Claimant's action failed. On the issue of volenti non fit injuria it was held that consent to the risk of injury was insufficient. There must be consent to the breach of duty in full knowledge of the nature and extent of the risk.
Diplock LJ:
"The maxim in English law presupposes a tortious act by the defendant. The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk… and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran"
ii. Morris v. Murray [1991] 2 QB 6
Facts
The Claimant and Defendant had been drinking all day. The Defendant, who had a pilot licence and a light aircraft, suggested that they took the aircraft for a flight. The Claimant agreed and drove them both to the airfield. They started the engine and the Defendant took off but crashed shortly after. The Defendant was killed and the Claimant was seriously injured. An autopsy revealed that the Defendant had consumed the equivalent of 17 Whiskeys. In an action for negligence. Defendant raised the defence of volenti non fit injuria.
Held:
The defence was allowed. The actions of the Claimant in accepting a ride in an aircraft from an obviously heavily intoxicated pilot was so glaringly dangerous that he could be taken to have voluntarily accepted the risk of injury and waived the right to compensation.
Volenti non fit iniuria is of two;-
a) Expressed consent
b) Implied consent
a)Expressed Consent – If a person waste his right he cant go back and get them.
E.g;- When a person is asked to sign a form to do operation if something happends he cant go and sue for that.
b) Implied Consent
E.g: When person voluteer himself in a fighting, footbal, wrestling, boxing, etc. If he gets injured he cant go and sue for that.
Conditions for application of maxim Volenti non fit injuria.
i. The consent must be free
Case
R v Williams [1923] 1 KB 340
The defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing. In fact he was having sexual intercourse with her.
Held;-
It was held that her consent was vitiated(spoil) by fraud as to the nature and quality of the act.
ii.The act must be lawful- So consent can not make unlawful act lawful, no person can give consent to other to commit crime.
E.g- According to the rule of boxing game must be played with gloves. If a person played this game with naked hands it will be unlawful act and connot be taken as good defense in the law of torts.
iii. The maxim is volentie not scient non fit injuria – This means knowledge implies consent but Volenti non fit injuria mere knowledge does not imply consent to take risk. It may however make it strong or weak according to the circumstances.
Case;-
Smith v Baker & Sons [1891] AC 325
Facts;-
The Claimant sued his employers for injuries sustained while in the course of working in their employment. He was employed to hold a drill in position whilst two other workers took it in turns to hit the drill with a hammer. Next to where he was working another set of workers were engaged in taking out stones and putting them into a steam crane which swung over the place where the Claimant was working. The Claimant was injured when a stone fell out of the crane and struck him on the head. The Defendant raised the defence of volenti non fit injuria in that the Claimant knew it was a dangerous practice and had complained that it was dangerous but nevertheless continued. At trial the jury found for the Claimant. The Defendant appealed and the Court of Appeal allowed the appeal holding that the Claimant was precluded from recovering as he had willingly accepted the risk. The Claimant appealed to the House of Lords.
Held;-
The appeal was allowed. The Claimant may have been aware of the danger of the job, but had not consented to the lack of care. He was therefore entitled to recover damages.
Lord Watson:
"In its application to questions between the employer and the employed, the maxim as now used generally imports that the workman had either expressly or by implication agreed to take upon himself the risks attendant upon the particular work which he was engaged to perform, and from which he has suffered injury. The question which has most frequently to be considered is not whether he voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his and not his masters. When, as is commonly the case, his acceptance or non-acceptance of the risk is left to implication, the workman cannot reasonably be held to have undertaken it unless he knew of its existence, and appreciated or had the means of appreciating its danger. But assuming that he did so, I am unable to accede to the suggestion that the mere fact of his continuing at his work, with such knowledge and appreciation, will in every case necessarily imply his acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk, and the workman's connection with it, as well as upon other considerations which must vary according to the circumstances of each case."
2. Act of GOD.
According to Sir John Salmond “Act of God include those acts which a man cant avoid even by taking a reasonable care, such accident are the result of naturally forces and are unconnected with the agency of man”
Element of defence of act of GOD
I- There must be operation of naturally forces
ii- Incident must be extra ordinary and not which could be anticipated and resonable guaded.
Case;-
Facts;-
The defendant diverted a natural stream on his land to create ornamental lakes. Exceptionally heavy rain caused the artificial lakes and waterways to be flooded and damage adjoining land.
Held;-
The defendant was held not liable under Rylands v Fletcher as the cause of the flood was an act of God.
Corporation of Greenock -v- Caledonian Railway Company; HL 1917
Facts;-
The West Burn flowed in a channel considerably below the surrounding ground which drained into it and in particular was below the level of Inverkip Road. In 1908, in order to form a playground for children, the natural channel of the West Burn was altered. A culvert was constructed and the burn buried. The surface of the park thereafter sloped down to Inverkip Road, which had become the lowest level and the channel for surface water which formerly drained into the burn. In addition, the defendants constructed a paddling pool at the mouth of the culvert which obstructed the flow of water and it was admitted that those works obstructed about ‘half the flow of water which would otherwise go down the culvert’. Flooding occurred in 1909 and then on the occasion with which the action was concerned in August 1912. The question asked was whether the defendants could establish ‘damnum fatale’ in the law of Scotland, hich, would approximate to act of God in English law. Lord Shaw assumed that there was no difference on the topic between the law of England and that of Scotland.
Held:-
The appellants had failed to establish any defence: ‘It is true that the flood was of extraordinary violence, but floods of extraordinary violence must be anticipated as likely to take place from time to time. It is the duty of any one who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel he will be liable. Such damage is not in the nature of damnum fatale, but is the direct result of the obstruction of a natural watercourse by the defenders’ works followed by heavy rain’.
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