Words: 1052
Malice in tort Malice means ill-will or desire to cause leading to someone someone. In legal sense, malice means a wrongful act which is done purposely without having a lawful act with is done purposely without having a lawful excuse. Excuse. In tort the intention or motto e for an tort, motive action is generally irrelevant. The I I is that bad intention does not make The general rule I the TA bad I t tit d a lawful action as unlawful and similarly an innocent or DOD intention is not a defense to a tort. So o De e CE o Wilkinson v. Downtown (1897) – A as a practical Joke told Mrs. B that her husband A, joke, Mrs.. Had met with an accident. Mrs.. B suffered a nervous shock and was ill as a result. Mrs.. B brought an action against A for false and malicious representation. The fact that A passed the information as a Joke was irrelevant and Mrs. B irrelevant, was entitled to damages. Malice In Itself Is not a tort out It can De an Imp rattan element in certain torts such as malicious prosecution. Liability Basic definitions …
The state of being bound or obliged in law The or Justice to do, pay or make good something.. The state of being responsible for something in law… Liability I defined IL built is d FL d as the obligation under the blip tit d law arising from civil actions (lee in contract and tort) Tortuous liability It has two concepts Damn Sine Injury Meaning “H “Harm without I tit t legal is I injury. ” It refers to a circumstance where a person has suffered actual harm without any violation of his legal right. A person aggrieved in this way has no legal remedy. Mogul Steamship Co. . McGregor, Go & Co. 1982) McGregor, Certain ship-owners reduced their freight charges for the Shipley purpose of driving their rival out of business. The plaintiff, who h d the b I I tiff h had thus been d I driven out of b I t T Dustless, brought an action against the ship-owners. Shipped: Held trader I d by the legitimate H old: a ad ruined b the I tit t competition of hi f his rivals could have no redress in tort. Injury Sine Damn This refers to a situation where a person suffers a violation of his right without any actual loss or damage sustained by him. This is especially so in the case of torts which are actionable ‘peers” (I. . Without proof of any damage) e. G. Trespass to land, peers libel e. T. C. E. T. C. The Court can award the damages to the plaintiff in such case. Case. Shabby v. White, (1703) The defendant, a returning officer, wrongfully refused to register a properly tendered vote of the plaintiff who was a legally qualified voter. In spite of this, the candidate for whom the vote was tendered was elected, and no loss was suffered by the rejection of the vote. It as held the t the defendant was liable J tit f the t old that the d f dot because he deprived the plaintiff of his legal right of registering his vote.
Determination of tortuous Strict Liability Regime – Product liability Donahue Vs. Stevenson Rule – Ultra hazardous activities – Determined mostly by Statute Fault Based Liability There is not a single legislation on Liability but several principles regulated in statute The Fault principle Most torts are based on the fault principle. Under this principle, it is necessary to establish some f It on the part of the wrongdoer before he can be the t f the h b made liable in tort. A person is said to be at fault where he fails to live up to some ideal standard of conduct set by law.
Three elements are relevant in the determination of fault, and any one of the f them may b relied upon:be IL d upon:- Intention Where a person does a wrongful act desiring that its consequences should follow he is said to have intended follow, it; and to that extent there is some amount of fault on his part. It. Recklessness: An act is said to be done recklessly where it is done without caring whatever its consequences might be. Recklessness, as such, constitutes alt on the part of the wrongdoer. Iii. Negligence A person is also at fault where he does a p wrongful act negligently I. . There the circumstances are such that he ought to have for seen the consequences of his act and a voided it altogether. Capacity to sue or be sued in Tort Capacity means the capacity of parties or persons to sue or to be sued in law of torts. I en general rule Is Tanat any person may sue or be sued in tort. All persons are subject to the same laws. Special rules however apply in certain circumstances which either restrict, forbid or lullaby the right to sue or be sued. Certain persons cannot sue, while some other persons cannot be sued.
The exceptions include: The Government According to the Government Proceedings Act (Cap 40) the Government subject to liabilities in tort as if it were a private person of full age and capacity. It fall Section 4 (1) of this Act provides that the Government is liable: (a) In respect of torts committed by its servants or agents; (b) In respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and c) In respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property.
The Government is also liable for statutory torts I. E. Torts arising from breach of a duty imposed by statute. Under Section 4 (5) of the Act, the Government is NOT IL bal f any HTH d tit liable for thing done by any person when discharging any responsibilities of a Judicial process process. The Government is not also liable for trots committed by public officers who are appointed and paid by local authorities, or members of public corporations egg Kenya