- 20 Marks
BCL – L1 – Q34 – Tort
Question
David, aged 25, is a premiership footballer who lives in a large house at Adenta in Accra. His girlfriend Clara and their one-year-old daughter, Afi, live with him and the house has a swimming pool in the garden. Samuel, who lives next door to David, has erected a canopy for parking vehicles, which is four metres high, close to the fence with David’s garden and passing over the boundary into David’s airspace.
Two weeks ago, Kwame, a farmer, was driving his tractor towards Nima round-about at high speed and he lost control of the tractor. It suddenly crossed the middle of the road and collided with David’s new sports car. David was unable to avoid the collision and he suffered broken ribs and a broken leg as a result of the impact. David was taken to hospital for treatment and was in pain for a week. Doctors had to amputate his damaged leg. As a result, he is unable to play football again and has found a job as a sports reporter on his local newspaper at a modest salary. He is unable to continue his hobby of ballroom dancing too.
(a) Advise David of the remedies he may obtain in respect of the above torts.
(b) Assume David was killed in the accident, advise Clara of any claim she may have in respect of the traffic accident only.
Answer
(a) Candidate should be able to identify that this is a case of tort.
Trespass to land is a wrong against possession of the land rather than its ownership. A person in actual possession can bring an action against any intruder, including the true owner, so far as possession was wrongful.
Land includes:
- the surface of the land
- things attached to the land, e.g., buildings, trees, crops
- the airspace above the land
- the ground below the surface.
David can sue for trespasses on property (airspace) against Samuel, with relevant case.
(b)
Explain duty of care and indicate the farmer (Kwame) owes David a duty of care with appropriate decided cases.
In the case of Donoghue v Stevenson [1932] A.C. 562, the neighbour principle was established. It was held that:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the act or omissions which are called in question.
David can sue Kwame for damage to property (which involves his sports car), injury (broken limbs and broken legs), and economic loss (unable to play football again). From appropriate cases, we can deduce that this element is not a ‘directional’ point but an issue of “causation”.
(b). Also, if David were killed in the accident, Clara, (David’s girlfriend), can sue for damages.
- Tags: Damages, Duty of care, Negligence, Tort
- Level: Level 1
- Topic: Tort
- Uploader: Samuel Duah