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Showing posts with label tort. Show all posts
Showing posts with label tort. Show all posts

Basic Understanding of Law of Torts with Case Examples

company law , contract

The Law of Tort Definition

The law of tort is a branch of civil law that governs every act or omission, other than a breach of contract, which gives rise to injury or harm to another and amounts to a civil wrong.

What is a Tort?

The tort may simply be defined as conduct that is not straight or lawful, but twisted, crooked, or unlawful. A person who commits a tort is called a tort-feasor or "wrong-doer".

A tort is a French word synonymous with "wrong" in English. It originates from the Latin word "tortum" meaning "to twist." It implies conduct that is twisted or tortious. Notably, it is difficult to give a precise definition of tort because:

  • The law of tort comprises a large number of wrongs of different kinds.
  • There are many circumstances in which tortious liability may arise.
  • The law of tort is evolving; new torts are still being formulated.

Common Tortious Acts

Examples of common tortious acts include negligence, assault and battery, slip and fall incidents, car accidents, and other forms of personal injury.

Purpose of the Law of Tort

The main purpose of the law of tort is to provide compensation to a person whose rights have been violated by the wrongful act of another person.

Law of Tort Theories: Theories of Salmond and Winfield

Is it The Law of Tort or The Law of Torts?

Salmond raised a question that led to significant discussion: Does the law of torts consist of general principles making it wrongful to harm others without justification, or is it a series of specific rules that prohibit certain activities? In other words, is it the law of tort or the law of torts?

Winfield Theory of Tort

According to Dr. Winfield, any wrongful act can be a tort unless the law states otherwise, implying a broad interpretation. If someone injures their neighbor, they can be sued in tort, even if the act has no specific name, as long as there is no lawful justification.

Salmond Theory of Tort (The Pigeon-Hole Theory)

Salmond argued that tort liability applies only to specific wrongs. If a wrongful act doesn’t fit into one of the defined categories, it isn’t a tort. This view, known as the "pigeon-hole theory," states there is no general principle of liability.

Difference between Winfield and Salmond Theories

Winfield sees tort law broadly, encompassing all injuries unless lawfully justified, whereas Salmond sees it as limited to specific wrongs. Winfield’s view allows for new torts; Salmond’s does not.

Elements to Constitute a Tort

  • A wrongful act or omission by a person.
  • Resulting in legal damage.
  • Giving rise to a remedy, typically monetary compensation.

Difference Between Tort and Crime

Torts affect private rights, while crimes affect public rights. Torts involve personal claims; crimes are handled by the state. Tort compensation goes to the injured party, while crime fines go to the government.

Difference Between Tort and Breach of Contract

In tort, duties are set by law and apply to all. Contracts are specific to the involved parties. Tort liability arises without consent; contracts depend on mutual consent.

Conclusion

In summary, tort law addresses wrongful acts that harm others, providing a basis for compensation. Common torts include negligence and assault. The theories of Salmond and Winfield present differing views on whether all wrongful acts or only certain ones constitute torts.

Reference

Myneni R.S (2009) Law of Torts And Consumer Protections, Asia Law House

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COMPENSATION FOR PERSONAL AND FATAL ACCIDENTS

law , tort
INTRODUCTION

Personal injuries as referred to section 2 of the Law Reform (Fatal Accident and Miscellaneous Provision) Act[1] include any disease and any impairment of a person’s physical or mental condition and the expression injured shall be construed accordingly. By legal definition is an injury to your body, mind or emotions it’s not an injury to physical property physical injuries cover harm such as broken bones, bruises or any serious injury sustained in an accident it also include the emotion and psychological injury you experienced as a result of trauma sustained through a humiliating or life threatening experience.
A personal injury case arises as the result of someone negligence, if you are a victim of an accidental personal injury caused through the fault of another, that individual or business is legally responsible to pay damages and or compensation[2].
                                               
Example of personal injuries cases include car accident, accident in work places medical malpractice, employer termination, defamation, assaults, battery 
Compensation for personal injuries
The amount of money that you are entitled to in a personal injuries claim depends on several factors, this may include the type of accident, the nature of your injuries and whether it affect your ability to work. To determine what you claim is worth, you may become informed as to type of damages that you can be compensated; this may include medical care and relate expense, permanent physical disability and loss of family, emotional or psychological damages, damaged property involved in the accident. Example of the cases which show how a person can be compensated in case of injury.



REHANA V. AHMEDABAD MUNICIPAL TRANSPORTATION TRASPPORT SERVICE[3].
the plaintiff who has been injured in an accident was a girl of 16 years of age, the accident was a resulting in permanent incapacity in the form of limp in one of her leg, she was awarded Rs 10,000 under the head personal suffering due to incapacity, a part from that amount spent for medical expense and compensation for the loss in the enjoyment of life by not being able to participate in sport and house hold work.

In the case of UNION OF INDIAN  V. SAVITA SHARMA[4] a girl about 18nyears old had been seriously injured when the tempo in which she was traveling was knocked down by a military vehicle, on e of her leg from knee downward was amputed,the court observed that there must  have been a great agony after accident, she has to use an artificial leg which needed replacement year after year compensation which she was allowed included Rs 15000 for Permanent disablement and Rs 600 for replacement of art fail leg for 40 years the period of her life expectancy.


FATALACCIDENTS.
The history of fatal accidents falls under Law Reform (Fatal Accidents and Miscellaneous Provisions Ordnance, Cap 360). Generally it covered accidents leading to the death of a person. Before the enactment of this Ordnance on the 13th may 1955, the death of a personal left the dependants in serious sorrow for not only having lost a relative but also for loss of pecuniary advantages. Hence the maxim that goes: action personal is moritur cum persona which means, “A personal right of action dies with the person.” That meant that the personal representatives of the deceased could neither sue nor be sued for any tort or wrong committed by or against the deceased in his lifetime. The argument put toward was that the death of a human being could not be complained of as an injury.
The English Law Reform Commission of 1786 came up with Lord Campbell's Act of 1864. This is the English Fatal Accidents Act of 1846. It was intended to protect the interests of the dependants among the near relatives. Therefore causing death of another person by a wrongful act became an actionable civil wrong. All three countries in East Africa (Tanganyika, Kenya and Uganda) adopted it.

Liability in fatal accident claims
When a person is killed a claim can be brought on behalf of his/her estate or on behalf of their dependents, the person or persons who bring an action are called the claimant or claimants if there is more than one person. And that the deceased would have had an action in negligence on breach of the duty if he had not died.
In the case of GRAY v. BARR[5]  it is necessary to prove that the defendants breach caused the death or made a material contribution toward it, if the deceased was contributory negligence then the claim by the estate or dependents can be reduce.


Claims on behalf of the estate.
the estate of the deceased person can recover reasonable funeral expense, any special damages the claimant could have claim, including loss of earning if any, from the date of accident to the date of death, and general damages for pain, suffering, here can only be one action if the administrator or the executor bring an action on behalf of the estate and must bring an action on behalf of the defendants section 4 of the act.

Claims brought by the dependants
Once a fatal accident takes place, section 4 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act[6]. The following individuals can claim damages arising out of that event of one's death:
  1. Dependants of the person whose death has been so caused.
  2. Executor or administrator suing as legal representative of the members of the deceased’s family.
This means that the above people are the ones who will benefit the damages as compensation for the death caused by a Fatal Accident to the deceased.  If there is no executor or administrator or they do not bring a claim within six months of the death a claim can be brought by dependants.

In defining who is a dependant, section 2 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act[7]  “means a wife or where the marriage was a polygamous marriage, each of the     wives, husband, father, mother, grandfather, grandmother, stepfather, brother, sister, half-brother, half-sister and includes an infant child whom the deceased had accepted as member of his family and every other person who is on the death of the deceased entitled to succeed to his property in accordance with the law of succession applicable to the estate of the deceased, and a person shall be deemed to be the father or mother or son or daughter of the deceased notwithstanding that he or she was related to him illegitimately or in adoption according to law.”


In fatal accident a dependant’s can brought a claim as provided within a statutory by showing that
in every action brought under this provision shall delivered to the defendant or his advocate, together with plaint full particulars of the person or persons for whom and on whose behalf such action is brought and of the nature of the claim in respect of which damages are south to be recovered.as provided under Section 6 of the Law reform (Fatal Accidents and Miscellaneous provisions) act[8] i.e.
They have suffered a financial loss or had a reasonable expectation of benefit. The claimant does not have to prove direct that there is a financial loss, a court can assess the claim on a probability basis by refer the case of
DAVIES v. TAYLOR[9] [1974] AC 207 the plaintiff husband was killed in a road accident caused by the defendants negligence, they were childless she had deserted him for five weeks before his death and thereafter he learned about her adultery with a fellow employee, he tried to effect reconciliation with her but she refused, shortly before his death he had instructed his solicitor to institute divorce proceedings, the plaintiff claimed as widow and administratix of the husband estate.
HELD her claim for dependency failed because a court of first instance found that she had not proved that reconciliation with her husband was more probable than not before his death, to obtain anything under a head of substantial losses of future chance the plaintiff must established that chance ,was substantial if it was, it must evaluated. If it was a mere possibility it must be ignored. Where in civil proceeding the proof is balance of probability.
A dependant can claim if they can show a reasonable expectation of future benefit. By refer to the case WELSH AMBULANCE SERVICE v. WILLIAMS[10]
The dependency is fixed at the moment of death it is what the dependents would probably have received as benefit from the deceased what decision people make afterward is irrelevant.



In addition is that, the many emphasis here is on committing a wrongful act which in turn causes death of a person leaving the dependants helpless at the same time the act should be of that nature that it entitles the deceased or injured a right to claim for damages if he would not have died."If the death of any person is caused by the wrongful act of any person and the wrongful act is such as would, if death had not ensued, have entitled the person injured thereby to maintain an action recover damages in respect thereof the person who would have been liable if death had not ensued shall be liable to an action for damages".
In this case the plaintiffs succeeded in claiming damages in a situation where the deceased (husband and father of the children named) together with three passengers died in a car accident negligently caused by the driver. Thus it should be border in mind that the sole organ to determine these circumstances is the court.

Survival of cause of actions
In survival of cause of action i.e. the dependants it shall not provide apply to cause of action for defamation or seduction or for including one spouse to leave or remain apart from others or to claim for damages on the ground of adultery, and shall not include any exemplary damages, in the case of breach of promise to marry shall be limited to such damages. As provided under section 9 of the law reform (fatal accidents and miscellaneous provisions) ac[11]t.


Joint tortfeasors
Where a person suffer damages as a result of a tort judgement for recover against any tortfeasor is liable in respect of damage shall not bar an action against any other person who would if sued have been liable as a joint tortfeasor in respect of same damage and any tortfeaasor liable in respect of damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damages whether as joint tortfeasor or otherwise for which the contribution is sought as provide under section 10 of Law Reform (Fatal Accidents and Miscellaneous Provision) Act[12].



Contributory negligence
where a person suffer damages as the result of the wrongful act and partially of wrongful act of another person a claim for damage shall not be brought by the person suffer damage but the damages recovered shall be reduced to the claimant to share the responsibility of the damage, provide that it shall not defeat any defence arising from contract and where any person died as the result partly of his own wrongful act and wrongful act of another and if action is brought for the benefit of the estate the damages revocable would be reduced on action brought for the benefit of the dependants as provided under section 11 of the Law Reform ( Fatal Accidents and Miscellaneous Provisions) Act.[13]


Workers and employee.
where an action s brought for recovered damages as provided under worker compensations act in respect of an injury or disease giving rise to a claim for compensation that damages are recoverable independently the employer would have been liable to pay compensation under the act as provided under section 12 of the Law Reform (Fatal Accident and Miscellaneous Provisions) Act[14].

Also in( The Occupational  Health and Safety)under s.81 it show the penalty in case of death or injury it state that where any person is killed ,or suffer seriously bodily injury in consequence of the occupier or owner  of the factory or work place having contravened any provision of this Act or of any regulation ,rule or order made there under ,occupier or owner of the factory or  work place shall without prejudice to any other penalty ,be liable to a fine of  not less than ten million shilling or to imprisonment for ten not exceeding to two years or to both such fine and imprisonment
            (2) in the case of injury to death ,the occupier or owner shall not be liable to a penalty under this section unless the injury was caused directly by the contravention
            (3) the occupier shall not be liable to a penalty under this section if  a charge against him under  Act in respect of the act or default by which the death or injury was caused has been heard and dismissed before the death or the injury occurred.
                                                                 


Assessment of damages
Age and expectations of working life of the deceased. The court will make references to the letters of appointment found in confidential files of the employees. The court may make references to the birth certificate of the deceased if at all the certificate is available an assistance may be obtained from other records such as baptismal certificate and the like depending on the
The case of RADHAKRISHEN M KHEMENEY v. MRS LACHADA MURLIDHAR[15] in this case the respondent sue the appellants for damages, alleging that the death of the respondent was due to the appellant negligence, the trial judge found the respondent and award general damages Shs. 132,500/=
HELD in considering an award for damages under fatal accident ordinance the court should ascertains age, expectation of working life, wages and expectation of the deceased, would have made available for his dependent from which annual value of the dependency could be calculated having regard to the expectation of earning life of the deceased, widow and children.


Also in the case of CHUNIBAI J. PATEL AND ANOTHER v. P.F.HAYES AND OTHERS[16]
In this case was whether widow subsequent earning to be taken into account, the respondent a widow and her two infant children had been awarded damages in Supreme Court for the death of her husband and for their own injuries arising from motor accident caused by the appellant’s negligence. On appeal against quantum of damages awarded it contended that as a widow had obtain employment after accident her earning should be regarded as direct consequence of the death or in alternative that as an employee in the company of which her husband was only a substantial shareholder her earning should be regarded as profit from the deceased estate to which she has succeed.
HELD earning of the widow were adventurous benefit and were not receivable as a direct or natural consequence of the death.

After ascertaining the age, the figure will be deducted from the retirement age and the difference will be the working life expectation period.


ILLUSTRATION
For instance, A's birth date 1970.while working with C's company on 15/8/1994 met a fatal accident, he A's age by August 1994 was 1994-1970=24 years. Thus A was 24 old at the time he met an accident. The working expectation period of A was 55 years=21.
The net earning power of the deceased (his income less tax) and the age and expectations of life of his dependants, the law assumes the wife (widow) to be totally dependent to the husband and the vice versa. Children are assumed to be dependent to their parents for the when they have the age below 18 years. For example A, as an employee of c earning 25,000 per month on 1/11/1994 met an accident that led to his death, his net earning power is calculated by taking his basic salary 25,000 minus the income tax. The income tax will be determined according to the formula laid down in the book of income tax of that year.


Deductible incidents
The court in assessing damages required in any action of fatal accident bears in mind certain deductible term before reaching the final sum. This include generally accelerated Income of what the deceased left to the beneficiaries such as accelerated pension fund.
Consider the case of Nawoneiwa Demangwa and Others v. Maweta[17]. In this case the plaintiff sued the defendant for damages on behalf of herself and her nine children as dependents of the deceased under section 2 of the law reform (fatal accident and miscellaneous provision) ordinance chapter 360 on the basis of negligence. That the deceased was travelling in a bus on a muram road. While going uphill the driver came upon a stone in the road on his right hand side. The stone was about one foot across and protruded out of the surface. The driver swerved to avoid the stone and drove onto the soft shoulder at the side of the road, this proved unable to support the weight of the bus which when plunged into the ravine killing the driver and the deceased instantly. The defendant was the owner of the bus and the driver was his servant. The deceased was 39 years old and was a divisional executive officer, drawing a salary of sh.360 per month. He lived with his wife and children in a part of his father's house, which had been provided for him, together with a shamba of about one and a half acres the amount spent on the wife and children was about 190/=


Conclusion
In a nutshell, personal injuries and fatal accident comprises many things including in circumstances of a negligence of someone and a compensation for a personal injuries and the fatal accident it depend on the many factors such as a type of an accident, nature of injuries to the affected person relating to ability to work also the liability to the fatal accident it may led also a claim from the dependant and it can be more than one person who depend the compensation of someone.
So under the law there some action maintainable when death caused by the wrongful act of another person that is if the death of any person is caused by the wrongful act of any person and the wrongful is such as would ,and if death is ensued have entitled the person injured thereby to maintain an action recover damage in respect thereof the person who would  have been liable if death had not ensued shall be liable to an action  for damages ,notwithstanding the death of the person injured ,and although the death was caused under such circumstance as would amount in law to a criminal offence.





REFERENCES

BOOKS
  • Binamungu law of torts
  • Principal of Law of Tort, Fourth Edition. 2002, Vivienne, Harp wood, LLB, Barrister Reader in Law, Cardiff Law school.
  • Essential Tort Law, Third Edition, Richard Owen, LLB, LLM Solicitor, Principal lecturer.


Statutes
  • The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act Chapter 310 R.E 2002.


Cases
  • Nawoneiwa Demangwa and Others v. Maweta [1970] HCD 27
  • CHUNIBAI J. PATEL AND ANOTHER v. P.F.HAYES AND OTHERS [1958] EA.
  • CHUNIBAI J. PATEL AND ANOTHER v. P.F.HAYES AND OTHERS [1957] EA.
  • WELSH AMBULANCE SERVICE v. WILLIAMS [2008] EWCA Civ 8
  • WELSH AMBULANCE SERVICE v. WILLIAMS [1976] ALER 273
                                   




[1] CAP 310 R.E.2002
[2] Black Law dictionary ten edition 2001.
[3][ 1976 ]A.I.R 37
[4] A.I.R 1979 J & K
[5] [1971] 2 QB 554.
[6] CAP 310 R.E.2002
[7] ibid
[8] Cap 310 R.E 2002.
[9] (1974) AC 207
[10] (2008) EWCA Civil Appeal 8
[11] Cap 310 R.E 2002
[12] Cap 310 R.E 2002
[13] IBID
[14] IBID
[15] (1958) E.A
[16] (1957) E.A
[17] [1970] HCD n 27.
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THE ASSESSMENT OF DAMAGE IN TORT

law , qn
INTRODUCTION

Assessment of Damages is a very wide area of the law. It is very ‘technical’ and covers an important area of civil litigation where there is an alleged civil wrong or an infraction of the law. It permeates almost all civil claims arising from tort and contract. 
When a claim for damages is included in an action, the plaintiff or claimant is required under the law to provide evidence in support of the claim and to give facts upon which the damages could be assessed. Simply put, before assessment of damages could be made,
The plaintiff or claimant must first furnish evidence to warrant the award of damages.  He must also provide facts that would form the basis of assessment of the damages he would be entitled to. His failure to do so would be fatal to his claim for damages.
That is why in all actions where damages is one of the reliefs claimed, the plaintiff or claimant is always called upon to give evidence in support of the claim for damages after interlocutory judgment is entered in his favour upon the failure of the defendant to either enter appearance or to defend the action. But before straying into the technical area of ‘assessment of damages’, which is our subject for this period, it is important that we know and appreciate what the word ‘Damages’ in law means.
When the word is used in its singular context; i.e. ‘damage’, what it simply connotes is either:  (i) Harm or injury, that is; physical injury that makes something less useful, less valuable or unable to function properly; e.g. (a) damage to a vehicle or any property
(ii) An adverse or harmful effect on somebody or something; e.g. (a) did damage his reputation in the community in which he lives,  (b) suffered psychological damage as a result of harassment, etc.  In another sense, damage is used to mean the cost or price of something.
However, ‘Damages’, as used in law, is nothing but, a sum of money claimed as compensation or awarded by a Court as compensation to the plaintiff/claimant for harm, loss or injury suffered by the plaintiff/claimant as a result of the tortuous act or breach of contract committed by the defendant or his agent.

Elizabeth A. Martin’s edition of the Oxford Dictionary of Law, 5 Edition, published by Oxford University Press, defines ‘damages’ as “a sum of money awarded by a court as compensation for a tort or breach of contract”.
In ‘McGregor on Damages’, the word ‘Damages’ is defined as; “the pecuniary compensation obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum, which is awarded unconditionally”. {Chapter 1, page 3}. ‘Damages’ is one of the several remedies that are open to a plaintiff who suffers injury or harm as a result of the tortuous act or breach of contract of another.


MAIN BODY
Damages are usually ‘lump sum’ awards. The general principle underlying the award of DAMAGES either in tort or in contract is that the plaintiff or claimant is entitled to full compensation for his losses; i.e. the principle of ”restitutio in integrum”. 
However, in determining how much to award, the Court considers two matters;
(i) The measure of damages, (i.e. quantum or the amount of money or lump sum that must be awarded)
(ii) Remoteness of damages; (i.e. the proximate cause of the breach).
In ‘tort’, the purpose of damages is to put the plaintiff in the position he would have been in if the tort had not been committed. [restitutio in integrum]. Damages are not awarded to over-enrich a plaintiff far beyond his actual losses. The reverse is also the case. Plaintiff should not get far less than his actual loss.
In the case of Borketey v. Achinivu & others (1966) GLR, 92, where a taxicab collided with a bus leading to a complete damage of the taxicab beyond repairs, the Supreme Court, in an appeal held that, “the appellant was entitled not only to the market value of the taxicab at the date of the accident but also to the profits he would have made had the car remained on the road”. {Total or actual loss}
So in both cases; either in tort or in contract, the principle is; ‘restitutio in integrum’.  It is pertinent to note, however, that recovery of damages is limited by the rules of “Remoteness of damages”, as indicated above. By ‘remoteness’ is meant that the damages to be awarded must not be too remote from, but must be proximate to the tortuous act or the breach.


Bradford v. Robinson Rentals ltd[1]   In the Bradford case cited above it was held that it is not necessary that the precise nature of the injury be foreseeable, provided that ‘the accident which occurred is a type which should have been foreseeable by a reasonable careful person, the defendant would be liable. th As stated in Salmon on Torts (14  edition at page 719), “It is sufficient if the type, kind, degree or order of harm could have been foreseen in a general way. The question is, was the accident a variant of the perils originally brought about by the defendants’ negligence?” 
TYPES OF DAMAGES: - Damages are of two main types, namely; General Damages and Special Damages. Apart from these two categorization, damages may also be classified as Liquidated and Unliquidated. This second classification pertains or is limited to only contracts or agreements.
According to Lord Macnaghten, ‘General damages’ are such as the law will presume to be the direct natural or probable consequence of the action complained of. ‘Special damages’ on the other hand, are such as the law will not infer from the nature of the act. They do not follow in ordinary cause. They are exceptional in character and therefore they must be claimed specially and proved strictly.
Chahin & Sons v. Epope Printing Press[2] Special Damages are liquidated, verifiable and provable sums; e.g. loss of income, loss of rent, loss of wages, replacement costs, loss of marriage, loss of material hospitality, loss of employment, loss of a business dealing (even if it might have turned out unprofitable), loss of particular customers, a general falling of profits and any other material loss. The recovery of such damages is however, subject to the principle of remoteness as already discussed above. 

Damages for Libel/Slander
In both libel and slander, damages are awarded to compensate the plaintiff for the injury to his reputation and the hurt to his feelings. Such damages are compensatory and therefore ‘at large’. Such damages are termed as a solatium rather than a monetary recompense for harm measurable in monetary terms. However, the general compensatory damages may be increased to take into accounts the defendant’s motives in uttering the words complained of or his conduct during the action. These additional or increased damages are what we call ‘aggravated’ or ‘increased’ damages as discussed earlier. They are meant to compensate the plaintiff for the additional injury caused as already explained above.
For factors to be considered in assessing damages recoverable in libel, see the case of Anthony v. University College of Cape Coast [1973] 1 GLR 299, per Edward Wiredu, J. (as he then was). For principles of assessment of damages in a customary law action for slander
Before going to the factors the following are the elements in which the court must take into consideration before awarding the damages which are Causation and Remoteness of the damages.


Causation; The claimant must prove that the damage complained of is the result of the defendant’s breach of duty. This is a question of fact. There must be an unbroken chain of causation. An event which breaks the chain of causation is known as a novus actus interveniens. Proof is on a balance of probabilities as stated in Hotson v East Berkshire[3] also in  Stovold v Barlows[4]

Remoteness of damage; It is not sufficient merely for the claimant to establish a causal connection between the act of the defendant and the damage which the claimant suffers. It is also necessary to establish that the damage was not too remote. This is a matter of law, and legal rules have been formulated to determine the question of remoteness of damage which have been established in answer to the question: ‘For how much of the damage is the defendant liable?’


Damages
One of the remedies available in tort of defamation is damages, damages simply means compensation in monetary value. For the purpose of guiding the courts in assessing general damages some factors has been developed. These factors were enumerated in Professor Donton Mkandawire v. Alfred Mtonga and Nation Publications Limited[5], 


FACTS OF THE CASE
The plaintiff, the Chief Executive for Lilongwe City assembly, commenced action against the defendants who are the editor and printers and publishers of the Nation Newspaper claiming that on the front page of the issue of the Nation Newspaper of 29th April 2005 the defendants maliciously printed and published or caused to be published the following words defamatory of the plaintiff:
“Lilongwe City Assembly Chief Executive Donton Mkandawire may face another contempt of Court charge following allegations that he threatened High Court Judge Richard Chinangwa after he ordered the Assembly to reinstate seven employees who were being accused of inciting a strike in July last year “

“The records indicate that the Judge got a threat from Lilongwe City Assembly through a phone call ………”

The plaintiff further claims that in their natural and ordinary meaning the said words meant and were understood to mean,
1.    That the plaintiff is a violent person who does not respect the rule of law.
2.     That the plaintiff is not fit to be a Chief Executive of a big and reputable institution like Lilongwe City Assembly.
3.   That the plaintiff does not respect the independence of the Judiciary.


In consequence his reputation has been seriously damaged and has suffered considerable distress and embarrassment and therefore he claims damages for libel including exemplary damages and costs of the action.
The defendants did not attend court on the date appointed for the assessment of the damages despite having been duly served with the notice. No reason for non-attendance having been given, the court proceeded to hear the plaintiff in their absence.

In his evidence the plaintiff confirmed the facts pleaded in his statement of claim. He tendered in evidence the newspaper article in question and it was marked EX P1. He told the court that the heading of the article itself, which read “Lilongwe City boss threatens Judge” in big block letters, was misleading. No where did the judge indicate he got a threatening call from the plaintiff. The plaintiff further said that he got shocked with the article. He got several calls from ministers and others asking him why on earth he could do such a thing. He through his lawyers demanded an apology to appear in five successive editions of the paper but that was not done by the defendants. He stressed that the article has caused him a lot of embarrassment, unhappiness and disrepute.

All issues of liability having been settled by the default judgment, this court has only to assess and award the claimed damages.

Damages for defamation are mainly awarded for injury to reputation and to feelings. Where there is no requirement for proof of special damages as in cases of slanders actionable per se and libel as in this case, the damages are said to be “at large.” In such cases the amount of the assessment is peculiarly in the province of the tribunal. The damages can not be measured by any standard known to the law; they must be determined by a consideration of all the circumstances of the case viewed in the light of the law applicable to them.



In Justice Mwaungulu v. Malawi News[6] the court listed several factors that need to be considered. They include,
(i) the context of the defamatory material,
(ii) the nature and extent of the defamatory publication including the aspect of reproduction,
(iii) the plaintiff's standing, his reputation and status,
(iv) nature of defamation, either libel or slander,
(v) conduct of the defendants from the time of the publication
 (vi) recklessness of publication.

I take all those into consideration in this case and I award the plaintiff K400 000 exemplary damages. I also award him costs of the action.

Other factors were outlined by Kisanga.J. in the case of Said Ali Maswanya. v. African Buyer and Trader Publication Ltd and others[7],where it was said that in assessing damages for libel the court will take into account factors such as the status of the plaintiff, the extent of the circulation of the publication and the conduct of the defendant. In addition to the above the other factor to be taken into account is failure to prove justification and motive of publication.


  1. Social status
Social status is a position of an individual in that community. they are responsibility which one hold, which determine ones position in the community. Where the plaintiff is government official or minister, or priest, his position is conspicuous to every individual in the community. This being in case, a defamatory statement against such figures will attract more damages than where one is an ordinary person in the society.


  1. Publication
What are considered under this heading are the number of copies published, and the area of publication that is the countries and the continents in which the matter is circulated. So, if it is a wide coverage. Then, attracts substantial damages. In the case of Maswanya, in which the publication was circulated in 47 African countries it was considered to be a large circulation. Hence, the court awarded Tsh.200,000/= as damages.


  1. Conduct of the defendant(s)
The court has to consider whether apology was made, or demanded and refused or whether the defendant(s) responded to the summons of whether the defendant(s) was responding to communication by court or not. When the defendant is found to have been outrageous and /or un –cooperative and disdainful this aggravates the quantum of damages.
In the case of Ismail G. Lazaro v. Josephine Magomera The court assessed damages at the tune of 10,000/= justice Mroso expressed the conduct of the appellant to be disdainful in the following words:-
“Even after uttering the slanderous words of the respondent (plaintiff) no efforts at all according to the lower court’s records was made by the appellant (defendant) to tender any apology. The appellant (defendant) therefore did nothing to mitigate the damage he had done to the respondent (plaintiff). In this regard the judge awarded substantial damages.


  1. Failure to prove justification and motive of publication
In addition to the above three factors mention by Kisanga J  , Mfalila J, went further, adding two more factors which court can consider. Those are failure to prove the defence of justification by the defendant and the motive for publishing the libel. Both of those factors do not enable courts to determine with precision the amount but give a court a rough figure acceptable in the circumstances.   


Injunction

Injunctions, both interlocutory and permanent, are important. It is possible for an aggrieved party of defamation to seek an injunction in the circumstances in which, say a book or any writing which is soon to be published to be stopped from being so published.
In some cases, the claimant requires a remedy which will do more than simply prove financial compensation. There may also be circumstances in which there is a need to prevent repetition of the wrongful acts. The appropriate remedy in such cases is the equitable remedy of an injunction. For example, in libel cases, the claimant often seeks an injunction to prevent publication of defamatory material.


CONCLUSION
The assessment of damages is peculiarly the province of the trial court and the Court of Appeal will only interfere only if the finding is out of proportion to the facts. In Akuffo v. Issaka[8], it was held that the appellate court would only set aside an award if it is shown that the trial court/judge left some relevant matters out of account or that the trial court took some irrelevant matters into consideration in assessing damages.
 The Supreme Court had earlier on in Bressah v. Asante & Another[9], held the same position in the following words: “An appellate court would only interfere with the quantum of damages on the ground that the trial judge acted upon some wrong principle of law or that the amount awarded was so extremely high or so very small as to make it an erroneous estimate”.
The relationship between causation and remoteness of damage In strict theory, causation (called ‘cause in fact’) and remoteness (called ‘cause in law’) must be dealt with as two separate requirements in each case. Causation is a matter of fact and requires the claimant to prove that the negligent act caused the damage complained of. The rules concerning remoteness of damage are a matter of law and broadly require the claimant to establish that the damage was of a kind which was reasonably foreseeable. It is concerned with setting a limit on the extent of the harm for which the defendant should be held liable.
However, it is not always a clear cut issue to establish where causation ends and remoteness begins, nor is it always a simple matter to separate some aspects of remoteness from issues which arise in relation to duty of care. Both causation and remoteness of damage frequently turn on issues of policy. Both are relevant throughout the law of tort and are dealt with in connection with negligence for the sake of completeness.


Credit: The work prepared by saidy kassim, LLB student at moshi cooperative university


REFERENCES
1. Atiyah, PS, The Damages Lottery, 1997, Oxford: Hart
2. Conaghan, J and Mansell, W, The Wrongs of Tort, 1993, London: Pluto
3. Harris, D, Remedies in Contract and Tort, 1988, London: Weidenfeld & Nicolson Holding, F and Kaye, P, Damages for Personal Injuries: Recent Developments and  Future Trends, 1993, London: Chancery Law
4. Markesinis, B, Tort Damages in English and German Law: A Comparison, 1985, Siena: Facolta di Giurisprudenza
5. McLean, S (ed), Compensation for Damages: an International Perspective, 1993, Aldershot: Dartmouth

WEBSITES
1.  Wikipedia.com
2.   jurist.com


[1] [1967] 1 W.L.R. 337; [1967] 1 All ER 267
[2] [1963] 1 GLR 163 - SC
[3] AHA (1987).
[4] (1995).
[5] Civil cause No.521 OF 2005
[6] Civil cause No. 518 of 1994
[7] [1981] TLR 221
[8] [1966] GLR 476
[9] [1965] 1 GLR 117
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