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Torts Summary - Lecture notes 5
Contract Law (Ghana Institute of Management and Public Administration)
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PRELIMINARY MATTERS ii. Voluntary act: refers to whether the D was in control of his
• Derived from tortus: meaning broken or twisted actions.
- Gibbons v Pepper: horse on which D was running took fright
• Obligation is based on the operation of law independent of
and runaway with him injuring P. Held to be battery as he was
the consent or agreement of parties. the one riding the horse and no one whipped the horse.
- Iura in rem: rights against all persons iii. Positive act: “not doing is not trespass”. Actual exertion
• Aimed essentially to maintain the status quo. Also: required.
- Protection of certain interests against certain types of iv. Intentional or negligent act
wrongful behaviour. v. Physical contact with the person of the P:
- giving redress to wrongs suffered by individuals through - Miller v AG: In order to found an action in assault and battery,
monetary compensation. there must have been a direct and intentional application of
• An act can be both a tort and a crime. physical force to the person of the P by the D, such as a blow
• Springs from 3 writs: inflicted with the hand or with a weapon or some other object.
i. Trespass vi et armis et contra pacem regis - It is trespass to take fingerprints if a person in custody but
ii. detinue not yet convicted or committed for trial without his
iii. Trespass on the case consent [Dumbell v Roberts]
vi. Lack consent [Nash v Sheen]
Trespass vi et armis (direct damage) - Express consent
• Direct unauthorised act by the defendant - Presumption of consent: presumption of consent to all
• Actionable per se non-hostile contacts merely incidental to living in a
- Trespass to the person- vi et armis community.
- Trespass to goods- de bonis asportatis (not per se) - Privileged contact (allowed by law): looks at nature of the
- Trespass to land- quare clausum fregit act and the intention with which the act was done.
Cole v turner (Holt CJ): “the least touching of another in anger is
battery. If 2 or more meet in a narrow passage and without any violence
Trespass on the case (Consequential damage)
or design of harm, one touched the other gently, no battery. But if one in
• Responsible for greater part of modern law of torts. E.g.: a desire to gain advantage shoves another aside in an inordinate and
Nuisance, conversion, deceit. Defamation, malicious violent manner, this is trespass.”
prosecution, negligence • Trespass is actionable per se but proof of damage will attract
• Actionable upon prove of actual damage consequential damages [Miller V AG]
Basis of liability
• Liability is for misfeasance i.e. positive actions causing 2. ASSAULT
damage • An intentional conduct which puts a person in reasonable fear
• No liability without fault or apprehension of imminent danger.
- Except Ryland’s v Fletcher: strict liability • To constitute an assault there must be an act constituting a
• Nominate torts refer to specific interests of the P which are threat to do personal violence to the party complaining
infringed and define conduct which constitutes the wrong e.g. coupled with a present ability to carry out that threat.
false imprisonment. Negligence is an exception - Read v Coker: D’s workmen surrounded P, and threatened to
break his neck if he did the not leave.
• Fault: based on either intentional act or negligence of D
• Has all elements of battery except physical contact
i. Intentional conduct: party’s inadvertence to his conduct
Miller v AG: To point a loaded revolver at another person in such a
and its consequences combined with a desire for those
hostile manner and within a shooting distance as in the present case, and
consequences. which conduct put the other person in reasonable fear or apprehension of
- Proved where the person doing the act knows of the an immediate battery constituted an assault
substantial certainty of the result.
• Mere words per se no matter how menacing donot constitute
- Prove of mere foreseeability: recklessness or negligence
assault.
ii. Negligence (as a mental element of intentional torts): total or
- Word that create a reasonable apprehension of imminent
partial inadvertence of the D to his conduct or its
physical contact constitute assault
consequence.
▪ R v Wilson: “get out the knives”
• Objective approach is used to determine intention - Words accompanying an act can negate assault.
• Law looks at the effect produced to determine whether D’s ▪ Tuberville v Savage: P put his hand on his sword and said
act was so calculated to produce some effect that an intention “if it were not the assize-time, I would not take such
to do so should be imputed to him language from you”
“If in the circumstances, he had knowledge that certain consequences will Bruce v Dyer: Usually, when there is no actual intention to use violence
substantially result from his act, then he had the desire (intends) for those there can be no assault. When there is no power to use violence to the
consequences. (Streets on Torts) knowledge of the P there can be no assault. There need not be in fact any
actual intention or power to use violence, for it is enough if the P on
TRESPASS TO PERSON
reasonable grounds believes that he is in fact in danger of violence. So, if
a person shakes his fist at another, the person so assaulted may strike
1. BATTERY back, if on reasonable grounds he believes that he is in danger.
Intentional application of force to another by direct means or
through unwelcome physical contact, irrespective of whether 3. UNLAWFUL ARREST
intent to harm or hostility is involved. Common Law
• Elements (6) Criminal Procedure Code, 1960 (Act 30)
i. Direct act: D’s conduct must have caused the basis of the P’s Articles 14 & 21 of Constitution
complaint. - Art. 14: protection of liberty except for lawful arrest or
- Scott v shepherd: D threw a squid in a market place which
custody by the State
subsequently injured P.
P. Vitoh & Uncle Rollo: Torts Summary
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- Art 21: general freedoms incl. movement - Dallison v Caffrey (Lord Denning): “whether a
reasonable man, assumed to know and possessed of the
• Police officer’s powers of arrest at common law: information which in fact was possessed by the D would
Christie v Leachinsky (Viscount Simon): ‘(1) If a policeman arrests believe that there was reasonable and probable cause.”
without warrant upon reasonable suspicion of felony, or of other crime of
a sort which does not require a warrant, he must in ordinary circumstances 2.2. Arrest by a private person (Sec. 12)
inform the person arrested of the true ground of arrest. He is not entitled • May arrest without warrant any person who in his presence
to keep the reason to himself or to give a reason which is not the true commits any offence:
reason. (2) If the citizen is not so informed but is nevertheless seized, the
- Involving the use of force/violence
policeman, apart from certain exceptions, is liable for false imprisonment.
(3) The requirement that the person arrested should be informed of the - Whereby bodily harm is caused to any person
reason why he is seized naturally does not exist if the circumstances are - In the nature of stealing or fraud
such that he must know the general nature of the alleged offence for which - Involving injury to public property
he is detained. (4) The requirement that he should be so informed does - Involving injury to property owned by or in the lawful
not mean that technical or precise language need be used. The matter is care/custody of the private person
a matter of substance, and turns on the elementary proposition that • May also arrest any person who he reasonably suspects of
in this country a person is, prima facie, entitled to his freedom and is having committed any of the 5 offences
only required to submit to restraints on his freedom if he knows in
- The offence must have actually been committed
substance the reason why it is claimed that this restraint should be
imposed. (5) The person arrested cannot complain that he has not been • For the arrest to be lawful:
supplied with the above information as and when he should be, if he - The basis of the arrest must be reasonable
himself produces the situation which makes it practically impossible to - The arrest must relate to one of the 5 offences
inform him, e.g., by immediate counter-attack or by running away. - The offence must actually have been committed by the
person arrested.
1. Arrest with a warrant (Sec 71-81 of Act 30) Walter v Smith: D arrested P upon suspicion that he had been stealing
from his bookstore and selling in his own.
• Warrant can be issued only by a judge upon compliant or
Held: Where a person instead of having recourse to legal proceedings by
charge made before him on oath. applying for a judicial warrant for arrest or laying an information or
• Warrant remains in force until execution or cancellation by issuing other process well known to the law gives another into custody,
the court he takes a risk upon himself by which he must abide, and, if in the result,
• Person executing the warrant must bring arrested person must it turns out that the person arrested was innocent and that therefore the
be brought before the court mentioned in the warrant with an arrest was wrongful, he cannot plead any lawful excuse.
endorsement showing place and time of execution.
• Police can search premises of a lawfully arrested person and When Arrest becomes unlawful; If
seize material relevant to the prosecution of said crime. i. The person is not told he is being arrested.
• Requirements of warrant: Must - Asante v The Rep: where the policeman merely told the
- State briefly the offence with which the person against A that he was wanted at, or being invited to the police
whom it is used is being charged station, A was not legally obliged to go there for a mere
- Indicate the name or other description of the person chat”
- Order the person(s) to whom it is directed to apprehend ii. The arrest does not follow due procedure set out under law
the person and bring him before the issuing court or other empowering the arrest.
court with jurisdiction to answer the charges against him. iii. The person is not told true reason for arrest.
iv. The officer has a warrant but not at the time of arrest and
2. Arrest without a warrant (Sec 10 & 12 of Act 30) person was not at time committing a crime that permits arrest
without warrant
2.1. Arrest by a police officer (Sec. 10) v. More restraint than necessary to prevent his escape is used.
• May arrest without warrant any person who:
- Commits an offence in his presence Exceptions: circumstances under which these infractions would
- Obstructs a police officer in the lawful execution of his not make an arrest unlawful.
duty i. if the person is caught in flagrante delicto i.e. caught red-
- Has escaped or attempted to escape from lawful custody handed
- Had in his possession any implement adapted or intended ii. if the person makes it impossible to carry out due procedure
for use in the unlawful entry of any building and gives no - Asumani Bugembe v AG: P assaulted police officer and
reasonable excuse for same pulled him out of shop before he could lay hands on P and
- Has in his possession anything which may be reasonably arrest him
suspected to be stolen property.
• May arrest without warrant any person whom he suspects 4. FALSE IMPRISONMENT
upon reasonable grounds of:0
• Protects rights guaranteed under Art 14,15 & 21 of Const.
- Having committed a crime Art 14: Any person who is unlawfully arrested, restricted or detained by
- Being about to commit a crime where any other person shall be entitled to compensation therefrom that other
▪ there is no other practical way of prevention of the person.
crime • Founded on imprisonment and absence of justification.
▪ such person is found in a yard, highway or other Assumption is that D departed from due process.
place at night Appiah v Mensah: False imprisonment is a complete deprivation of
- Being a person who a warrant of arrest has been issued liberty for any time, however short, so long as it is without lawful excuse
- Being a deserter of the armed forces • Elements:
- Having committed an act outside GH which would have i. Imprisonment without justification by the defendant.
been a crime if committed in GH. - Warner v Riddiford: To constitute imprisonment it was
• Test for reasonableness: not necessary that the person should be locked up within
P. Vitoh & Uncle Rollo: Torts Summary
Gedownload door DELALIKEM KODZO GEMEGAH ()
Torts Summary - Lecture notes 5
Contract Law (Ghana Institute of Management and Public Administration)
Scannen om te openen op Studocu
Studeersnel wordt niet gesponsord of ondersteund door een hogeschool of universiteit
Gedownload door DELALIKEM KODZO GEMEGAH ()
, lOMoARcPSD|36712091
P a g e |1
PRELIMINARY MATTERS ii. Voluntary act: refers to whether the D was in control of his
• Derived from tortus: meaning broken or twisted actions.
- Gibbons v Pepper: horse on which D was running took fright
• Obligation is based on the operation of law independent of
and runaway with him injuring P. Held to be battery as he was
the consent or agreement of parties. the one riding the horse and no one whipped the horse.
- Iura in rem: rights against all persons iii. Positive act: “not doing is not trespass”. Actual exertion
• Aimed essentially to maintain the status quo. Also: required.
- Protection of certain interests against certain types of iv. Intentional or negligent act
wrongful behaviour. v. Physical contact with the person of the P:
- giving redress to wrongs suffered by individuals through - Miller v AG: In order to found an action in assault and battery,
monetary compensation. there must have been a direct and intentional application of
• An act can be both a tort and a crime. physical force to the person of the P by the D, such as a blow
• Springs from 3 writs: inflicted with the hand or with a weapon or some other object.
i. Trespass vi et armis et contra pacem regis - It is trespass to take fingerprints if a person in custody but
ii. detinue not yet convicted or committed for trial without his
iii. Trespass on the case consent [Dumbell v Roberts]
vi. Lack consent [Nash v Sheen]
Trespass vi et armis (direct damage) - Express consent
• Direct unauthorised act by the defendant - Presumption of consent: presumption of consent to all
• Actionable per se non-hostile contacts merely incidental to living in a
- Trespass to the person- vi et armis community.
- Trespass to goods- de bonis asportatis (not per se) - Privileged contact (allowed by law): looks at nature of the
- Trespass to land- quare clausum fregit act and the intention with which the act was done.
Cole v turner (Holt CJ): “the least touching of another in anger is
battery. If 2 or more meet in a narrow passage and without any violence
Trespass on the case (Consequential damage)
or design of harm, one touched the other gently, no battery. But if one in
• Responsible for greater part of modern law of torts. E.g.: a desire to gain advantage shoves another aside in an inordinate and
Nuisance, conversion, deceit. Defamation, malicious violent manner, this is trespass.”
prosecution, negligence • Trespass is actionable per se but proof of damage will attract
• Actionable upon prove of actual damage consequential damages [Miller V AG]
Basis of liability
• Liability is for misfeasance i.e. positive actions causing 2. ASSAULT
damage • An intentional conduct which puts a person in reasonable fear
• No liability without fault or apprehension of imminent danger.
- Except Ryland’s v Fletcher: strict liability • To constitute an assault there must be an act constituting a
• Nominate torts refer to specific interests of the P which are threat to do personal violence to the party complaining
infringed and define conduct which constitutes the wrong e.g. coupled with a present ability to carry out that threat.
false imprisonment. Negligence is an exception - Read v Coker: D’s workmen surrounded P, and threatened to
break his neck if he did the not leave.
• Fault: based on either intentional act or negligence of D
• Has all elements of battery except physical contact
i. Intentional conduct: party’s inadvertence to his conduct
Miller v AG: To point a loaded revolver at another person in such a
and its consequences combined with a desire for those
hostile manner and within a shooting distance as in the present case, and
consequences. which conduct put the other person in reasonable fear or apprehension of
- Proved where the person doing the act knows of the an immediate battery constituted an assault
substantial certainty of the result.
• Mere words per se no matter how menacing donot constitute
- Prove of mere foreseeability: recklessness or negligence
assault.
ii. Negligence (as a mental element of intentional torts): total or
- Word that create a reasonable apprehension of imminent
partial inadvertence of the D to his conduct or its
physical contact constitute assault
consequence.
▪ R v Wilson: “get out the knives”
• Objective approach is used to determine intention - Words accompanying an act can negate assault.
• Law looks at the effect produced to determine whether D’s ▪ Tuberville v Savage: P put his hand on his sword and said
act was so calculated to produce some effect that an intention “if it were not the assize-time, I would not take such
to do so should be imputed to him language from you”
“If in the circumstances, he had knowledge that certain consequences will Bruce v Dyer: Usually, when there is no actual intention to use violence
substantially result from his act, then he had the desire (intends) for those there can be no assault. When there is no power to use violence to the
consequences. (Streets on Torts) knowledge of the P there can be no assault. There need not be in fact any
actual intention or power to use violence, for it is enough if the P on
TRESPASS TO PERSON
reasonable grounds believes that he is in fact in danger of violence. So, if
a person shakes his fist at another, the person so assaulted may strike
1. BATTERY back, if on reasonable grounds he believes that he is in danger.
Intentional application of force to another by direct means or
through unwelcome physical contact, irrespective of whether 3. UNLAWFUL ARREST
intent to harm or hostility is involved. Common Law
• Elements (6) Criminal Procedure Code, 1960 (Act 30)
i. Direct act: D’s conduct must have caused the basis of the P’s Articles 14 & 21 of Constitution
complaint. - Art. 14: protection of liberty except for lawful arrest or
- Scott v shepherd: D threw a squid in a market place which
custody by the State
subsequently injured P.
P. Vitoh & Uncle Rollo: Torts Summary
Gedownload door DELALIKEM KODZO GEMEGAH ()
, lOMoARcPSD|36712091
P a g e |2
- Art 21: general freedoms incl. movement - Dallison v Caffrey (Lord Denning): “whether a
reasonable man, assumed to know and possessed of the
• Police officer’s powers of arrest at common law: information which in fact was possessed by the D would
Christie v Leachinsky (Viscount Simon): ‘(1) If a policeman arrests believe that there was reasonable and probable cause.”
without warrant upon reasonable suspicion of felony, or of other crime of
a sort which does not require a warrant, he must in ordinary circumstances 2.2. Arrest by a private person (Sec. 12)
inform the person arrested of the true ground of arrest. He is not entitled • May arrest without warrant any person who in his presence
to keep the reason to himself or to give a reason which is not the true commits any offence:
reason. (2) If the citizen is not so informed but is nevertheless seized, the
- Involving the use of force/violence
policeman, apart from certain exceptions, is liable for false imprisonment.
(3) The requirement that the person arrested should be informed of the - Whereby bodily harm is caused to any person
reason why he is seized naturally does not exist if the circumstances are - In the nature of stealing or fraud
such that he must know the general nature of the alleged offence for which - Involving injury to public property
he is detained. (4) The requirement that he should be so informed does - Involving injury to property owned by or in the lawful
not mean that technical or precise language need be used. The matter is care/custody of the private person
a matter of substance, and turns on the elementary proposition that • May also arrest any person who he reasonably suspects of
in this country a person is, prima facie, entitled to his freedom and is having committed any of the 5 offences
only required to submit to restraints on his freedom if he knows in
- The offence must have actually been committed
substance the reason why it is claimed that this restraint should be
imposed. (5) The person arrested cannot complain that he has not been • For the arrest to be lawful:
supplied with the above information as and when he should be, if he - The basis of the arrest must be reasonable
himself produces the situation which makes it practically impossible to - The arrest must relate to one of the 5 offences
inform him, e.g., by immediate counter-attack or by running away. - The offence must actually have been committed by the
person arrested.
1. Arrest with a warrant (Sec 71-81 of Act 30) Walter v Smith: D arrested P upon suspicion that he had been stealing
from his bookstore and selling in his own.
• Warrant can be issued only by a judge upon compliant or
Held: Where a person instead of having recourse to legal proceedings by
charge made before him on oath. applying for a judicial warrant for arrest or laying an information or
• Warrant remains in force until execution or cancellation by issuing other process well known to the law gives another into custody,
the court he takes a risk upon himself by which he must abide, and, if in the result,
• Person executing the warrant must bring arrested person must it turns out that the person arrested was innocent and that therefore the
be brought before the court mentioned in the warrant with an arrest was wrongful, he cannot plead any lawful excuse.
endorsement showing place and time of execution.
• Police can search premises of a lawfully arrested person and When Arrest becomes unlawful; If
seize material relevant to the prosecution of said crime. i. The person is not told he is being arrested.
• Requirements of warrant: Must - Asante v The Rep: where the policeman merely told the
- State briefly the offence with which the person against A that he was wanted at, or being invited to the police
whom it is used is being charged station, A was not legally obliged to go there for a mere
- Indicate the name or other description of the person chat”
- Order the person(s) to whom it is directed to apprehend ii. The arrest does not follow due procedure set out under law
the person and bring him before the issuing court or other empowering the arrest.
court with jurisdiction to answer the charges against him. iii. The person is not told true reason for arrest.
iv. The officer has a warrant but not at the time of arrest and
2. Arrest without a warrant (Sec 10 & 12 of Act 30) person was not at time committing a crime that permits arrest
without warrant
2.1. Arrest by a police officer (Sec. 10) v. More restraint than necessary to prevent his escape is used.
• May arrest without warrant any person who:
- Commits an offence in his presence Exceptions: circumstances under which these infractions would
- Obstructs a police officer in the lawful execution of his not make an arrest unlawful.
duty i. if the person is caught in flagrante delicto i.e. caught red-
- Has escaped or attempted to escape from lawful custody handed
- Had in his possession any implement adapted or intended ii. if the person makes it impossible to carry out due procedure
for use in the unlawful entry of any building and gives no - Asumani Bugembe v AG: P assaulted police officer and
reasonable excuse for same pulled him out of shop before he could lay hands on P and
- Has in his possession anything which may be reasonably arrest him
suspected to be stolen property.
• May arrest without warrant any person whom he suspects 4. FALSE IMPRISONMENT
upon reasonable grounds of:0
• Protects rights guaranteed under Art 14,15 & 21 of Const.
- Having committed a crime Art 14: Any person who is unlawfully arrested, restricted or detained by
- Being about to commit a crime where any other person shall be entitled to compensation therefrom that other
▪ there is no other practical way of prevention of the person.
crime • Founded on imprisonment and absence of justification.
▪ such person is found in a yard, highway or other Assumption is that D departed from due process.
place at night Appiah v Mensah: False imprisonment is a complete deprivation of
- Being a person who a warrant of arrest has been issued liberty for any time, however short, so long as it is without lawful excuse
- Being a deserter of the armed forces • Elements:
- Having committed an act outside GH which would have i. Imprisonment without justification by the defendant.
been a crime if committed in GH. - Warner v Riddiford: To constitute imprisonment it was
• Test for reasonableness: not necessary that the person should be locked up within
P. Vitoh & Uncle Rollo: Torts Summary
Gedownload door DELALIKEM KODZO GEMEGAH ()
