Topic: Tort

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  • 10 Marks

BCL – Apr 2022 – L1 – Q3a – Tort

Analyze vicarious liability in a case where an employee used a company vehicle without permission, resulting in an accident and injury.

a) Kojo Adams was employed by Zinto Breweries Ltd to drive the company’s van. Without permission, Kojo Adams took the van from his employer’s garage in order to deliver a child’s coffin at the home of a relative. While he was returning the van to the garage, he picked up some empty beer barrels, and was afterwards involved in an accident which injured one Kosaa. Kosaa took legal action in court against Kojo Adam’s and Zinto Breweries Ltd.

Required:

i) Identify TWO (2) issues that arise from this case.

(4 marks)

ii) Explain the chances of Kosaa in her action against Zinto Breweries Ltd.

(4 marks)

iii) Advise Kojo Adams.

(2 marks)

i) The principle of law identified in the question relates to vicarious liability. The vicarious liability principle simply states that an employer is liable for damage caused to another person by his employee, while the employee was carrying out his work (or while the employee was in the course of employment). The scenario relates to employment contract. The issues for determination are: a. Whether or not Zinto Breweries are vicariously liable for the tort of Kojo Adams namely the injury to Kosaa b. Whether or not Kojo Adams must bear his own tort for being on the frolic of his own. The principle applies whether the injury was to an outsider or to a fellow employee. The employer is liable even though he was not in any way at fault. So far as the law is concerned, the employer and employee are regarded as associated parties in the business in which both are engaged. The policy basis of the legal principle is to provide the injured person with a defendant who is likely to be able to pay damages which the court may award. The principle does not become applicable if the employee acts outside of the contractual duties. There are, however, instances such as the employer being liable in spite of the fact that the employee was acting improperly, if the act was, even so, part of his contractual duties. (4 marks)

ii) In the circumstance of the facts of the scenario in the question, the following matters arise: Kojo Adams is an employee of the Zinto Breweries Ltd. and he drives the company’s van. From the facts of the case, the journey during which he carried a child’s coffin to a relative was not authorized. That the journey was not converted into an authorized journey merely because Kojo Adam performed some small act for the benefit of his employer by picking those beer barrels. It, therefore, means that injury to Kosaa when the van was involved in the accident cannot make the employer liable. That the chances of Kosaa succeeding in her action against the employer, Zinto Breweries Ltd., are slim because Kojo Adams acted outside of his contractual duties. (4 marks)

iii) Kojo Adams will be personally liable for the injury of Kosaa. He could be liable to both specific and general damages. The company Zinto cannot be vicariously liable in this circumstances. (2 marks)

  • 8 Marks

BCL – Nov 2020 – L1 – Q4a – Tort

Explain the chances of success in a legal action under the Rule in Rylands v Fletcher.

Osrodo Leather Co. Ltd used a solvent in their tanning business. The solvent escaped from beneath the works and eventually filtered into the water supply, polluting Adade Water Co. Ltd’s dam. Adade Water Co. Ltd was forced to abandon the dam to develop new water supplies. Consequently, Adade Water Co. Ltd took legal action against Osrodo Leather Co. Ltd.

Required:
Briefly explain the chances of Adade Water Co. Ltd, in the light of the Rule in Rylands Vrs Fletcher. (8 marks)

The rule in Rylands v Fletcher (1868) was stated by the House of Lords in the following terms:
“Where a person for his own purposes brings and keeps on land in his occupation anything likely to do mischief if it escapes, he must keep it at his peril, and if he fails to do so, he is liable for all damages naturally occurring from the escape.”

  • In the instant case, there was an escape of the solvent from the container being used by Osrodo Leather Co. Ltd, and the solvent eventually percolated into the water supply run by Adade Water Co. Ltd.
  • However, the issue that would make the Rule applicable in the instant case is whether Osrodo Leather Co. Ltd could not reasonably have foreseen that the spillage or solvent over time would contaminate the water supply.
  • It is to be noted that to make the Rule fully applicable, there should be an essential requirement of foreseeability, apart from the fact that there must be an escape of a thing that inflicts injury from a place over which the alleged tortfeasor has occupation.
  • In the instant case, Osrodo Leather Co. Ltd could not have reasonably foreseen that the spillage of the solvent over time would contaminate the water supply.
  • In the circumstance of this case, the legal action taken by Adade Water Ltd to claim compensation under the Rule in Rylands v Fletcher will not succeed. It may be said that the strict liability for the escape only arises if Osrodo Leather Co. Ltd had foreseen that the escape solvent might cause damage.
  • From the facts, there is no such evidence of foreseeability on the part of Osrodo Leather Co. Ltd.

(4 points for 2 marks each = 8 marks)

  • 20 Marks

BCL – May 2020 – L2 – Q4 – Tort

Discuss the types of nuisance, conditions for constituting nuisance, and the legal position and remedies available to a person affected by nuisance.

Asantewaa lives in a quiet residential area. Next door, Kwickbuild Ltd, is carrying out extensive building works to a dilapidated old house. The builders who are working from dawn to dusk, seven (7) days a week, used a crane which passes over Asantewaa’s house. Asantewaa and her family are annoyed by the dust, dirt, and noise caused by the building works.

Required:

a) Identify the types of tort of nuisance.
(4 marks)

b) What TWO (2) conditions must be present for a conduct to constitute nuisance?
(6 marks)

c) Advise Asantewaa as to her legal position.
(6 marks)

d) State TWO (2) legal remedies available to her.
(4 marks)

Asantewaa lives in a quiet residential area. Next door, Kwickbuild Ltd, is carrying out extensive building works to a dilapidated old house. The builders who are working from dawn to dusk, seven (7) days a week, used a crane which passes over Asantewaa’s house. Asantewaa and her family are annoyed by the dust, dirt, and noise caused by the building works.

Required:

a) Identify the types of tort of nuisance.
(4 marks)

b) What TWO (2) conditions must be present for a conduct to constitute nuisance?
(6 marks)

c) Advise Asantewaa as to her legal position.
(6 marks)

d) State TWO (2) legal remedies available to her.
(4 marks)

Answer:

a) Types of Tort of Nuisance:

  • Public Nuisance: Public nuisance is an act or omission that causes discomfort or inconvenience to a class of people. It is generally considered a crime. However, individuals who are particularly affected by the nuisance may bring an action in court.
  • Private Nuisance: Private nuisance consists of an unreasonable interference with a person’s use or enjoyment of their land. This could involve physical damage or interference causing loss of enjoyment or discomfort.

(4 marks)

b) Conditions for Conduct to Constitute Nuisance:

  • Indirect Interference: The act must involve indirect interference with the use or enjoyment of land. Examples include smoke, smells, noise, or other disruptions that affect the enjoyment of the property.
  • Unreasonable Conduct: The interference must be unreasonable, causing either physical damage to the land or significant discomfort or loss of enjoyment to the property owner. The act must go beyond what is considered normal use of property.

(6 marks)

c) Legal Position of Asantewaa:

  • The case of Asantewaa is one of private nuisance, and she has a cause of action against Kwickbuild Ltd. The continuous dust, dirt, and noise from dawn to dusk, seven days a week, constitute an unreasonable interference with the use and enjoyment of her property.
  • The interference is significant and persistent, making it unreasonable for Asantewaa and her family to endure such conditions without relief.

(6 marks)

d) Legal Remedies Available:

  • Compensation: Asantewaa can sue Kwickbuild Ltd for compensation due to the nuisance caused by the building works.
  • Injunction: Asantewaa can seek an injunction from the court to prevent the continuation of the nuisance.

(4 marks)

  • 10 Marks

BCL – May 2020 – L2 – Q1c – Tort

Discuss whether an employee can claim damages for an injury caused by slipping at the workplace.

Following flood damage as a result of three (3) continuous days of rainfall, the Management of Adusa Confectionery Ltd, carefully sprinkled sawdust over the factory floor to prevent employees’ slippage until the floor could be properly cleared. A small patch remained uncovered and Mary Ansah, a pregnant employee, slipped and got injured. She sued the company.

Required:
Explain whether the employee can claim any damages against the management of Adusa Confectionery Ltd.
(10 marks)

 

Section 9 of the Labour Act, 2003, Act 651 states the duties of the employer. Specifically, Section 9(c) states:

“Take all practicable steps to ensure that the worker is free from risk of personal injury or damage to his/her health during and in the course of the worker’s employment or while lawfully on the employer’s premises.”

  • In this case, the issue is whether the employer was reasonable or negligent in not providing a safe environment for the employees.
  • The situation that led to the slip of Mary Ansah, resulting in her injury, was unexpected due to three days of continuous rainfall.
  • The management of Adusa Confectionery Ltd, as an interim measure, sprinkled sawdust on the floor to prevent any slippage, although a small portion was not covered by the sawdust.
  • There is no evidence that prior to the downpour, the factory floor had been unsafe due to negligence by the management of Adusa Confectionery Ltd.
  • Therefore, it is not arguable that the management in this instance breached Section 9(c) of Act 651 and is liable for negligence under common law.
  • Given the circumstances, the employer did not act unreasonably or negligently in breach of Section 9(c) of Act 651.
  • As a result, Mary Ansah is not likely to succeed in any action against the management.

(4 points for 2.5 marks each = 10 marks)

  • 8 Marks

BCL – Mar 2024 – L1 – Q2a – Tort

Analyze whether Atta Mante and the other residents will succeed in a court action against the Adiso District Council for nuisance.

The Adiso District Council has been dumping garbage in a quarry close to a residential area at Abobo, where Atta Mante resides, and that Atta Mante alleged that the dumping of the refuse has often caused offensive and pestilential smell from vapours in the area, and that the stench emanating from the refuse had seriously interfered with their comfort and well-being. The Council denied having caused any discomfort to Atta Mante and the other residents and contended that the act complained of by Atta Mante and other residents, were conferred on the Council by law.

Required:

Explain whether Atta Mante and the other residents will succeed in any court action against Adiso District Council. (8 marks)

The area under consideration is nuisance. Nuisance is divided into public nuisance and private nuisance, although it is quite possible for the same conduct to amount to both.

A public nuisance is a crime, while private nuisance is a tort. Nuisance actions have concerned pollution by oil or noxious fumes, interference with leisure activities, offensive smells from premises for keeping animals, or noise from industrial installations.

The prevailing stance of nuisance liability is that of protection of private rights in the enjoyment of land, so that control of injurious activities for the benefit of the community is incidental.

In narrowing the scenario to private nuisance, Winfield and Jolowicz on Torts define private nuisance as unlawful interference with a person’s use or enjoyment of land, or in connection with some right over or in connection with it. Generally, the essence of nuisance is a state of affairs that is either continuous or recurrent or an activity that unduly interferes with the use or enjoyment of land. Not every slight annoyance, therefore, is actionable. Stenches, smoke, the escape of effluent, and a multitude of different things may amount to nuisance.

In the present scenario, the nuisance complained of is within the residential area of which Atta Mante and others reside. The claim is the recurrence of no more failing than the enjoyment of their rights to the land. The balance of interest is not being personal to Atta Mante but to the wider residential community.

Therefore, Atta Mante and the other residents will succeed in a court action against Adiso District Council.

(8 marks)

  • 5 Marks

BCL – Mar 2024 – L1 – Q1a – Tort, Human Rights, Hierarchical Structure of Courts

Evaluate the likelihood of Agro Club succeeding in their court action against the school authorities for trespassing.

Ten members of a club (Agro Club) trespassed on a piece of land belonging to a public school. The club erected a wooden structure on the land in which they were residing. When the school authorities noticed their presence, they were then asked to vacate the land, but they defied the warning. The school authorities served written notice on them to remove the structure they have erected on the land, and vacate same within five days or risked their structure being demolished. The club decided to take legal action against the school authorities in the Supreme Court.

Required:
Explain whether Agro Club will succeed in their court action. (5 marks)

The Supreme Court is the apex court of Ghana. Under article 129 of the Constitution of the Republic of Ghana, 1992, the Supreme Court shall be the final court of appeal and have such appellate and other jurisdiction as may be conferred on it by the constitution or any other law.

The claim by the ten (10) members of a club (Agro Club) is based on an alleged infringement of their human rights. The claim of the encroachment is grounded on an alleged infringement of their fundamental human rights by the school authorities under article 18 (1).

The 1992 Constitution states that if the claim is that which borders on infringement of one’s fundamental human rights, the appropriate forum is the High Court and not the Supreme Court.

Article 18 provides that every person has a right to own property either alone or in association with others. It is the right of the ten (10) members to erect a wooden structure on the land in which they were despite their trespass. Acquisition of property follows the law. Having a right to own property does not mean that one can encroach on or occupy any land at all irrespective of who owns that land and then claim it as one’s property.

It therefore constitutes trespass to land for anyone to enter the land of another person without the owner’s consent and refuse to leave when ordered to do so. The occupation by the encroachers of the school’s land without authority is unlawful.

The school can therefore eject them from the land without infringing any law. The ten (10) will fail in their action because their conduct is unilaterally occupying another person’s land.

Commencing the court action in the Supreme Court is inappropriate. The action should have been commenced in the High Court pursuant to article 33.

Article 130 provides for the exclusive original jurisdiction of the Supreme Court in:

i) all matters relating to the enforcement or interpretation of the Constitution; and ii) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under the Constitution.

In the current scenario, the Agro Club decided to take legal action against the school authorities in the Supreme Court. By the provisions of articles 129 and 130 of the Constitution of the Republic of Ghana, the appellate and exclusive original jurisdictions of the Supreme Court do not fall within the matter under consideration. The Agro Club will therefore, not succeed in its court action.

  • 2 Marks

BCL – Nov 2018 – L1 – Q1e – Tort

State two elements required to establish a case of professional negligence.

State TWO (2) elements of Professional Negligence.

(2 marks)

  • The duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise.
  • A breach of that duty.
  • A proximate causal connection between the negligent conduct and the resulting injury.
  • Actual loss or damage resulting from the professional’s negligence.                                (Any 2 points for 2 marks)
  • 2 Marks

BCL – Nov 2018 – L1 – Q1d – Tort

Define professional negligence in the context of tort law.

Explain the term “Professional Negligence.” (2 marks)

Professional negligence is a breach of the duty of care between professionals and their clients. The duty of care is a common law arrangement where the client expects a level of professionalism and standards commonly held by those in the profession.

  • 6 Marks

BCL – May 2018 – L1 – Q2c – Tort

Explain the possible liability of a company and its employee in a negligence case.

c) Bizee Company Limited is a wholesaler storing large quantities of goods in the port city of Takoradi. Kofi Gee, an employee of the company, is a well-trained and skilled driver in a specialty truck. As part of the company’s routine retraining, the need for Kofi Gee to take time, drive the truck carefully and safely, taking into consideration always people on the premises, was over-emphasized. One day, in a hurry to complete the day’s scheduled duty, Kofi Gee drove back the truck so quickly through the partition of the client part of the wholesale department. Two clients on the sales section of the company at the time were injured.

The Board of Directors of the company foresaw the potential consequence to compensate the injured. At their meeting, therefore, you were consulted for your idea on the compensation.

Required:
Explain to the Board the possible liability of the company and Kofi Gee to the two injured clients.

(6 marks)

The question involves vicarious liability of Bizee Company Limited for the tort of its employee.

Every individual is liable for his own tort. However, employers are vicariously responsible/liable for the tort of their employees while the employees are acting in the course of employment. The employer ceases to be liable only where the employee is on the frolic of his own. Kofi Gee was employed to drive the specialty truck and was doing that when the accident occurred. Therefore, the company becomes vicariously liable for the tort of Kofi Gee in the tort of negligence, despite the instructions and despite providing him with the needed training. (4 marks)

The law imposes a duty on everyone and to everyone to take care, in particular professionals. Kofi Gee breached that duty by failing to apply the skill and expertise in driving the specialty truck. Kofi Gee will also be liable in the tort of negligence. (2 marks)

  • 10 Marks

BCL – Nov 2017 – L1 – Q3b – Contract Law, Tort

Explain the differences between contract law and tort law, including their definitions and key distinctions.

b) Both tort and contract laws are considered part of the civil law (as opposed to criminal law). However, there are several differences between these two branches of civil law.

Required:
i) Explain law of contract and law of tort. (6 marks)
ii) State TWO differences between law of contract and law of tort. (4 marks)

(Total: 10 marks)

i)

  • Law of Contract: An agreement creating obligations enforceable by law. The basic elements of a contract are mutual assent, consideration, capacity, and legality. In some states, the element of consideration can be satisfied by a valid substitute. (3 marks)
  • Law of Tort: A tort is a civil wrong. There are three general types of torts that may cause injury to another person. In civil law, torts are grounds for lawsuits to compensate a grieving party for any damages or injuries suffered. (3 marks)

ii) Law of Contract vs Law of Tort

  • Existence of Agreement: In contract law, there must be an existing agreement between the parties to enter into legal relations. In tort law, a breach of duty is enough to establish liability, and the courts focus on the harm or injury suffered by the victim. (2 marks)
  • Provision of Consideration: In contract law, there is a requirement for consideration (something of value exchanged between parties). In tort law, the focus is on the duty of care and the breach of that duty, not on any exchange of value. (2 marks)

(Total: 10 marks)

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