COMMONWEALTH CARIBBEAN TORT LAW Second Edition CP Cavendish Publishing Limited London • Sydney COMMONWEALTH CARIBBEAN TORT LAW Second Edition Gilbert Kodilinye, MA, LLM, Barrister Professor of Property Law University of the West Indies CP Cavendish Publishing Limited London • Sydney Second edition first published in Great Britain 2000 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0) 20 7278 8000 Facsimile: +44 (0) 20 7278 8080 E-mail: [email protected] Visit our Home Page on http://www.cavendishpublishing.com © Kodilinye, G 2000 First edition 1995 Second edition 2000 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the prior permission in writing of the publisher. Kodilinye, Gilbert Commonwealth Caribbean tort law – 2nd ed 1 Torts – Caribbean Area I Title II Tort 346.7'29'03 ISBN 1 85941 539 3 To Vanessa PREFACE The law of torts is an area of primary importance in the study and practice of the common law in the Caribbean. This work has been conceived as a basic text and case book for students of tort law in the various institutions of higher learning in the region, and in particular for those reading for the LLB degree. It is hoped that practitioners will also find the book useful as a work of reference, particularly with regard to the accounts of unreported cases which might otherwise be unobtainable or inaccessible. Although conceived primarily for lawyers, it is hoped that the work will also be of interest to those business executives, insurance agents, industrialists and journalists who may require some knowledge of this most important area of the law. The contents of the book have been dictated to some extent by the availability or otherwise of Caribbean case law on the various topics. Those areas in which local litigation and materials are negligible or non-existent have been summarised or omitted, whilst those which have been frequently litigated have been given extended treatment. The emphasis throughout the book is on those topics which are of most relevance and importance in the West Indian society, and the cases extracted are those which most clearly explain and illustrate the application of tort principles in the Caribbean context. This second edition incorporates all the relevant new case law (mostly unreported) appearing since 1994, including important decisions in the areas of malicious prosecution, negligence, nuisance and defamation. I am extremely grateful to Mr Timothy Alleyne for his sterling work in researching recent unreported West Indian judgments on torts for this edition, and to my lovely wife, Vanessa Kodilinye (Attorney at Law, Barbados), who patiently and cheerfully assisted me in incorporating additional material for the new edition and made many useful suggestions for improving the text. Lastly, I should like to thank the staff at Cavendish Publishing for again producing an excellent finished product. Gilbert Kodilinye Faculty of Law University of the West Indies Cave Hill Campus, Barbados June 2000 vii CONTENTS Preface vii Table of Cases xv Table of Statutes li 1 INTRODUCTION 1 DEFINITION 1 TORT DISTINGUISHED FROM OTHER LEGAL CONCEPTS 1 Tort and crime 1 Tort and contract 3 DAMNUM SINE INJURIA 5 INJURIA SINE DAMNO 6 THE FORMS OF ACTION 6 INTENTION AND NEGLIGENCE 7 STRICT LIABILITY 8 MOTIVE AND MALICE 8 RECEPTION OF THE LAW OF TORTS IN THE CARIBBEAN 9 Antigua 10 The Bahamas 10 Barbados 10 Dominica 10 Grenada 11 Guyana 11 Jamaica 11 St Lucia 12 Trinidad and Tobago 12 2 TRESPASS TO THE PERSON 13 INTRODUCTION 13 Assault and battery distinguished 13 ASSAULT 14 Words 15 BATTERY 16 DEFENCES TO ASSAULT AND BATTERY 17 Defence of person or property 17 Parents’ and teachers’ authority 18 Consent 19 Assessment of damages for assault and battery 20 FALSE IMPRISONMENT 22 LAWFUL ARREST 29 Arrest with warrant 30 Arrest without warrant 30 ix Commonwealth Caribbean Tort Law Arrest on reasonable suspicion 33 Other statutory powers of arrest 37 Statutory protection for constables 45 Procedure during and after arrest 46 Arrest through agent 51 Signing the charge-sheet 53 Assessment of damages for false imprisonment 55 3 MALICIOUS PROSECUTION 59 INTRODUCTION 59 REQUIREMENTS OF THE TORT 62 Institution of prosecution 62 Termination of prosecution in plaintiff’s favour 65 Absence of reasonable and probable cause 66 Malice 68 Section 33 of the Constabulary Force Act (Jamaica) 74 Damage 75 4 NEGLIGENCE 77 INTRODUCTION 77 DEFINITION 77 DUTY OF CARE 78 Recent trends 83 BREACH OF DUTY 84 The likelihood of harm 85 The seriousness of the injury that is risked 91 The importance or utility of the defendant’s activity 92 The cost and practicability of measures to avoid the harm 98 INTELLIGENCE, KNOWLEDGE AND SKILL OF THE REASONABLE MAN 99 Intelligence 99 Knowledge 99 Skill 100 OMISSIONS 106 PROOF OF NEGLIGENCE – RES IPSA LOQUITUR 109 CAUSATION 128 Causation in fact 128 Remoteness of damage 131 LIABILITY FOR ECONOMIC LOSS 139 Negligent misstatement causing economic loss 139 Ross v Caunters economic loss 151 x Contents 5 OCCUPIERS’ LIABILITY 155 INTRODUCTION 155 THE OCCUPIERS’ LIABILITY ACTS 155 The common duty of care 155 The occupier 156 Premises 156 Visitors 156 Common duty of care 157 Independent contractors 158 DEFENCES 158 EXCLUDING LIABILITY 158 WARNINGS 159 COMMON LAW LIABILITY 160 LIABILITY TO TRESPASSERS 166 6 EMPLOYERS’ LIABILITY 171 PERSONAL DUTY OF EMPLOYER AT COMMON LAW 171 Competent staff of men 172 Adequate plant and equipment 172 Safe system of working and effective supervision 173 Safe place of work 174 STATUTORY DUTIES 176 7 NUISANCE 191 PUBLIC AND PRIVATE NUISANCE 191 Public nuisance 191 Private nuisance 193 WHO CAN SUE? 217 Private nuisance 217 Public nuisance 219 WHO CAN BE SUED? 220 The creator 220 The occupier 220 The landlord 222 Nuisance and strict liability 222 Abatement of nuisance 224 DAMAGES 225 DEFENCES 226 Statutory authority 226 Ineffectual defences 228 8 THE RULE IN RYLANDS V FLETCHER 229 INTRODUCTION 229 FORESEEABILITY 230 xi Commonwealth Caribbean Tort Law SCOPE OF THE RULE 231 Things within the rule 231 Bringing onto the land and accumulation 232 Escape 232 Non-natural user 233 DEFENCES 239 Consent of the plaintiff 240 Default of the plaintiff 240 Act of God 241 Act of a stranger 242 Statutory authority 249 DAMAGES 249 9 LIABILITY FOR ANIMALS 251 INTRODUCTION 251 LIABILITY FOR CATTLE TRESPASS 252 Statutory defence 253 Parties to an action in cattle trespass 254 Trespass from the highway 256 LIABILITY FOR DANGEROUS ANIMALS (THE SCIENTER ACTION) 256 Who can be sued? 260 Defences 260 Scienter in the Caribbean 261 LIABILITY FOR DOGS 263 LIABILITY FOR NEGLIGENCE 271 10 DEFAMATION 279 INTRODUCTION 279 LIBEL AND SLANDER 279 PROOF OF DAMAGE 280 SLANDER ACTIONABLE PER SE 281 Imputation of crime 281 Imputation of certain diseases 284 Imputation of unchastity or adultery 286 Imputation affecting professional or business reputation 289 REMOTENESS OF DAMAGE IN LIBEL AND SLANDER 290 WHAT IS DEFAMATORY? 290 PRESUMPTION OF FALSITY 292 EXAMPLES OF DEFAMATORY STATEMENTS 292 Words must be defamatory 293 Reference to the plaintiff 311 xii Contents DEFENCES 320 Justification (truth) 320 Fair comment 322 Absolute privilege 346 Qualified privilege 349 ASSESSMENT OF DAMAGES IN DEFAMATION ACTIONS 375 11 PASSING OFF 379 DEFINITION 379 Marketing a product as that of the plaintiff 380 Imitating the ‘get-up’ or appearance of the plaintiff’s goods 380 Marketing goods under a trade name already appropriated for goods of that kind by the plaintiff, or under a name so similar to the plaintiff’s trade name as to be mistaken for it 392 Marketing goods with the trade mark of the plaintiff or with any deceptive imitation of such mark 393 DEFENDANT’S CONDUCT MUST BE ‘CALCULATED TO DECEIVE’ 393 USE OF DEFENDANT’S OWN NAME 394 COMMON FIELD OF ACTIVITY 395 INJURY TO GOODWILL 396 12 VICARIOUS LIABILITY 403 DEFINITION 403 SERVANTS AND INDEPENDENT CONTRACTORS 404 LENDING A SERVANT 406 COMMISSION OF A TORT BY THE SERVANT 408 RES IPSA LOQUITUR 408 THE COURSE OF EMPLOYMENT 409 Manner of doing the work the servant was employed to do 409 Authorised limits of time and place 410 Express prohibition 412 Giving lifts to unauthorised passengers 414 Connection with employer’s business 419 IMPROPER DELEGATION 424 LIABILITY OF BAILEES 427 OTHER INTENTIONAL WRONGFUL ACTS 430 VEHICLE OWNERS AND CASUAL AGENTS 432 WHOLLY OR PARTLY ON THE OWNER’S BUSINESS 433 THE PRESUMPTION OF SERVICE OR AGENCY 439 LIABILITY INSURANCE 444 xiii Commonwealth Caribbean Tort Law LIABILITY FOR INDEPENDENT CONTRACTORS 445 Authorisation of tort 445 Torts of strict liability 447 Negligence 447 13 GENERAL DEFENCES 453 INTRODUCTION 453 CONTRIBUTORY NEGLIGENCE 453 Seat belts 454 Standard of care 455 Road accidents 463 Apportionment 469 VOLENTI NON FIT INJURIA 469 Essentials of volenti in negligence cases 471 Volenti and scienti 472 Rescuers 473 Volenti and workmen 474 14 DAMAGES FOR PERSONAL INJURIES AND DEATH 477 PERSONAL INJURIES 477 Special damages 478 General damages 479 Heads of general damage 481 Deductions 487 DEATH 495 Survival of actions 505 APPENDIX 1 511 DIGEST OF ADDITIONAL COMMONWEALTH CARIBBEAN CASES APPENDIX 2 529 EXTRACTS FROM