Sunday, October 6, 2019
Compare and contrast these speech Essay Example | Topics and Well Written Essays - 500 words
Compare and contrast these speech - Essay Example Both the speakers know what points of the other they can counter and take those up first. They want to make an impression on the listeners to gain votes but their content is up-to-date and thorough. The style is simple, but the pauses between speeches make the speech more effective. The tone of voice varies in accordance to the importance of the point and the importance that the speaker wants to give the point. Nixon last few sentences literally rattle the people because it makes them fell that it is eventually up to them to help the country. Those last words leave a lasting impression on the people who have heard the speech. This speech is more ethical because they do not interrupt each other and do not make personal attacks. In the debate between Edwards, Obama and Clinton, speech ethics are lacking. They both are trying to make personal attacks and interrupted each other. Although, it is not their turn to speak in the debate, they interrupt the speaker just to justify themselves. Content is not focused towards the issue of helping the American people and what they would do to make further amendments. The debate is over things that have already happened and who has raised how much money for their campaign. They are, as I said earlier making personal attacks rather than just political ones. Competence of speech is not lacking in both speeches. All these five people are very good speakers and can have the effect that they want on people. Style is aggressive for Obama while defensive for Hilary. They stress upon the right words to get the effect they want and their nonverbal cues are in accordance with their verbal cues. In my opinion these debates have moved away from the people of America to the personal issues of the candidates who are standing up for the elections. The way the Nixon and Kennedy debate took place, with poise from both candidates and their
Friday, October 4, 2019
Explain Washington landlord tenant law Essay Example | Topics and Well Written Essays - 500 words
Explain Washington landlord tenant law - Essay Example It is vital to note that the apartments allow for disability access. Pets are accepted in the apartments, but one has to pay a deposit of $400 to keep a pet and $200 is refunded when a tenant’s lease expires. However, there are breed restrictions on the type of animal one can keep. The tenant is also provided with one free covered parking space. The lease is one year long (McQueen 54). There are number provisions in the lease that comply with the law. For example, the lease provides the tenant with emergency maintenance and this ensures that the landlord repairs any damages to the apartment. This covers the Residential Landlord-Tenant Act RCW59. 18.230(1). I also find it interesting that the landlord expects tenants to pay a fee to keep a pet at the resident. This is an extra deposit to the security and damage deposit paid when one starts renting the apartment. This is a legal fee since the landlord has the right to charge for fees covering special cleaning. There is also a clause in the lease that the landlord can change the rules regarding the use of the community amenities like the swimming pool, fitness center, and tennis court. This is against the law since a landlord does not have the right to change the terms of a lease once the tenant has signed it. Change to the lease can only occur if the tenant agrees to it (Haupt and Kathryn 132). Another provision of the lease that I find interesting is that the landlord does not have to return the tenant’s security deposit if the apartment is damaged in any way. This is not legal according to the law of Washington State. The landlord is only allowed to keep the exact amount a tenant owes on repair costs. The rest of the money must be returned to the tenant (RCW 59.18.280). Another provision of the lease that I find interesting is the fact that if I move out before the end of the lease, I will be forced to pay all rent owed before the landlord can re-rent the apartment RCW
Thursday, October 3, 2019
Effective Communication Essay Example for Free
Effective Communication Essay Effective communication is the process of transferring information or thoughts to someone or a group of people by way of speaking, writing or body language. According to â€Å"Livestron.com†(2014), â€Å"Effective communication extends the concept to require that transmitted content is received and understood by someone in the way it was intended. The goals of effective communication include creating a common perception, changing behaviors and acquiring information†(para. 1). It is important that the person receiving the information be able to clearly and concisely understand the information from the sender. The most effective and ineffective techniques for sharing information, techniques that can be applied or modified in a health care work environment and ways in which technology may affect these processes will be discussed in this paper. Effective Communication Techniques Effective communication begins with encoding, or being able to clearly and concisely relay the message so that the receiver will be able to decode the message. Another important part of effective communication is making sure the receiver properly understands the message that was being sent. When considering the context of the communication it improves the effectiveness. Context includes age, religion, sexual orientation and intellectual abilities of the receiver. Body language, or non-verbal communication includes eye contact, facial expressions, posture and position of the hands and arms. When body language is consistent with verbal content it improves understanding, and when body language is inconsistent with verbal content it creates confusion about the message. Emotions can interfere with effective communication. For example: messages maybe negatively affected if the sender is angry. While working in community mental health industry, an individual will be faced with constant changes in the way they communicate with each other, whether it be with the psychiatrist, counselor, patient, drug representative or another health care provider. I found the most used forms of communicating with other people were face-to-face communication, phone, e-mail and faxes. I feel the most effective way of communication is face-to-face because communication signals can provide insight to what is critical in gaining an understanding of other’s perspectives. Ineffective Ways of Communication Ineffective communication can be any disruption or failure in the communication process. Language is an obvious communication barrier because if a person does not understand the language the communication fails. Another barrier is when a person has an idea but lacks the confidence to speak up the communication process fails. According to â€Å"Chron.com†(2014) â€Å"Removing barriers will increase your odds of communicating effectively. Both senders and receivers should pay attention to others in the process, making eye contact, listening intently and avoiding distractions. By being empathetic, you are imagining what it is like to be in the other person’s situation, which helps the communication process†(para. 5). How These Techniques Can Be Applied or Modified Communication is the key to succeeding and will allow coworkers in a health care environment to work well together. â€Å"A team is a small group of people with complementary skills, who work together to achieve a shared purpose and hold themselves mutually accountable for its accomplishment. Teamwork is the process of people working together to accomplish these goals†(Lombardi, Schermerhorn, Kramer, 2007, p. 91). Team members need to start out slowly in order to accomplish good communication skills. All team members should learn how to work with their team and be able to control any conflicts that might occur. How Technology Affects the Communication Process Technology has impacted the health care field in a positive and rewarding way. For instance, the electronic medical record allows the user to exchange health care information electronically and can help provide a higher quality and safer care for the patients while creating enhancements for the health care organization. The electronic medical record provides up-to-date, accurate information about patient at the point of care which allows quick access to patient records for a more coordination of care. There are so many things that technology has provided the health care industry: MRI’s, CAT Scans, ultrasounds and laparoscopic surgeries. Technology will always bring change and a positive outlook to the health care industry. In conclusion, effective communication helps to better understand a person or situation. It enables us to resolve differences and build trust and respect. This paper covered the most effective and ineffective ways for sharing information and ideas, techniques that can be applied or modified in a health care work environment and how technology impacts the communication process. References: Chron.com. (2014). Retrieved from http://smallbusiness.chron.com/effective-ineffective-communication-56100.html Lombardi, D.J., Schermerhorn, J.R., Kramer, B. (2007). Managing Teams: Leading and Developing Work Teams that are Efficient, Focused, and Flexible. Hoboken, NJ: John Wiley Sons, Inc. Livestrong.com. (2014). Retrieved from http://www.livestrong.com/article/69309-effective-communication/
Photocatalytic Activity Investigation
Photocatalytic Activity Investigation The photocatalytic activity of the modified samples was investigated by the determination of the remaining concentration of the nominated pollutant, acetaldehyde, over various time intervals. Figures. 5 and 6 show the photodecomposition activity of different modified TiOà ¢Ã¢â‚¬Å¡Ã¢â‚¬Å¡ nanoparticles under 8w visible light irradiation in the continuous flow reactor with a flow rate of 95 ml/min. According to Figures. 5 and 6, all the modified samples show much higher photocatalytic activity than the pure TiOà ¢Ã¢â‚¬Å¡Ã¢â‚¬Å¡, confirming that N and Co doping is an effective way of improving the photocatalytic activity. The highest activity was observed for 1%Co-N-TiOà ¢Ã¢â‚¬Å¡Ã¢â‚¬Å¡ sample, and the 50 min irradiation by visible light resulted in 44.2% of acetaldehyde degradation for this sample. The increased visible light absorption and specific surface area are key factors that influenced the photoactivity of the different modified samples under visible light irradiation compared to pure TiO2. The decrease in the particle size and increase in the BET surface area (Table 1) contribute to the improvement of the acetaldehyde degradation. Table 1 shows that the crystallite size of samples decreases from 21.9 to 14.7 nm; this decrease may be beneficial for the photocatalytic activity. Compared with the N-TiO2 sample, Co-N/TiO2 photocatalysts have a larger surface area, which increases the photoactivity rate because of the large amounts of acetaldehyde molecules being adsorbed on the photocatalytic surface and easily reacted by photogenerated oxidizing species. The light absorption characteristics of the modified samples are extended towards the visible light region after N and Co doping, which implies that the formation of photogenerated charge carriers will be increased under visible light irradiation. Also, cobalt doping with a low cobalt content can act as a charge trap to prevent electron-hole recombination and improve the interfacial charge transfer to degrade acetaldehyde. After the optimal doping ratio of cobalt was exceeded (1wt % Co-N-TiO2), reduced photocatalytic activity was observed. This result can be due to the coverage of the surface of photocatalyst with increased cobalt ions (Co2+) which inhibited interfacial charge transfer due to inadequate amount of light energy available for activation of all the photocatalyst particles. Also due to excessive concentration, Co particles acting as recombination centers for photogenerated electrons and holes . Based on the acetaldehyde degradation results in this study, it is therefore evident that photocatalytic activity is strongly dependent on the doping ratio rather than the band gap of the samples and activities of the Co-N-TiO2 co-doped samples are higher than those of N-TiO2 or pure TiO2. **                    Fig. 5                   ** **                     Fig. 6                  ** Kinetic study The Langmuir-Hinshelwood kinetic model has been extensively used to describe heterogeneous photocatalysis on titanium dioxide . This model successfully describes the kinetic of Eq. (3), which is the reaction between hydroxyl radical and adsorbed acetaldehyde. When the photocatalytic reaction obeys a Langmuir-Hinshelwood model, the relationship between the rate of reaction r (ÃŽ ¼mol g-1 min-1) and the acetaldehyde concentration Cact. (ÃŽ ¼mol l-1) can be described as follows in Eq. (4): Where k is the rate constant (ÃŽ ¼mol g-1 min-1) and Ka is the adsorption constant (l ÃŽ ¼mol-1). Some assumptions were used in Eq. (4). Only acetaldehyde is adsorbed on the catalyst surface and all intermediates and products desorbed immediately after chemical reaction; therefore, they have not been detected in Eq. (4). The mathematical modelling for the plug photoreactor at unsteady condition with the assumption of isothermal condition, ignored diffusion resistance and constant flow rate, the mass balance equation inside the continuous photoreactor would become as follows in Eq. (5): Where Q is the volumetric flow rate (l min-1), W is the weight of catalyst (g), V is the volume of the reactor (l), and t is the time of experiment (min). Kinetic parameters (k, K) were calculated using the Nelder-Mead method, which was used through computer programming in MATLAB by minimization of sum of squared of relative error, the difference between the calculated and experimental outlet concentration results, as the following objective function: By minimization of Eq. (6), kinetic parameters (k, Ka) are predicted and shown in Table 3. A good agreement among the predicted and experimental data were found that are shown in Fig. 7.
Wednesday, October 2, 2019
Analysis of Audens The Age of Anxiety :: Auden The Age of Anxiety Essays
Analysis of Auden's The Age of Anxiety  In Auden's lengthy poem, "The Age of Anxiety", he follows the actions and thoughts of four characters who happen to meet in a bar during a war. Their interactions with one another lead them on an imaginary quest in their minds in which they attempt, without success, to discover themselves. The themes and ideas that Auden's "The Age of Anxiety" conveys reflect his belief that man's quest for self-actualization is in vain.         W. H. Auden was born in York, England, in 1907, the third and youngest son of Constance and George Auden (Magill 72). His poetry in the 1930's reflected the world of his era, a world of depression, Fascism, and war. His works adopt a prose of a "clinical diagrostician [sic] anatomizing society" and interpret social and spiritual acts as failures of communication (Magill 74). They also put forth a diagnosis of the industrial English society among economic and moral decay in the 1930's (Magill 72). Conflicts common in his works are those between war and peace, corruption of modern society, and the "dichotomy between the rich and the poor" (Barrows 317).         "The Age of Anxiety" is, in general, a quest poem. Unlike the ideal quest, however, this quest accomplishes nothing. The characters search for the meaning of self and, in essence, the meaning of life, but because their search is triggered by intoxication due to alchohol, the quest is doomed from the start. Throughout the quest, the characters believe themselves to be in a form of Purgatory when they are allegorically in Hell. They fail to realize this due to "the modern human condition which denies possibility but refuses to call it impossible" (Nelson 117).         In "The Age of Anxiety", there are four characters of significance. Quant, the first to be introduced, addresses himself in a mirror, an action typical to a drunken man. He is an aging homosexual widower who finds refuge in the mirror because it offers him the easiest way of facing himself (Nelson 117-118).         Malin, the most dominant character overall, is a medical intelligence officer on leave from the Canadian Air Force. His background labels him as the "would-be doctor and leader" in the world of "The Age of Anxiety". His name is reminiscent, in relation to the war, of a malingerer, and the composition of his personality hints at the evil within him (Nelson 118).         Rosetta, the most human of the characters, is a department store buyer, and comes closer to self-actualization than any of the other characters in the poem. Emble is a young sailor and would-be prince whose
Economic Injustice in America :: Exploratory Essays Research Papers
Economic Injustice in America "Class is for European democracies or something else--it isn't for the United States of America. We are not going to be divided by class." -George Bush, the forty-first President of the United States (Kalra 1) The United States of America was founded on the basis of a "classless society of equals," committed to eliminating the past injustices imposed on them by Great Britain. A hundred years later, Alexis de Tocqueville, a prominent sociologist of France, claimed that the nation was the most democratic in the world, a model for the rest of mankind, distinguished by the "equality of condition" ("Tocqueville in..." n. pag.). Today, however, there does exist perceptible classes in this country, and, because of differences in material wealth, Americans have unequal opportunities in politics, education, health care, justice, security, and overall happiness. The distinct class structure of current-day America is the greatest cause of inequality in the United States today. This inequality in America is not recognized. The subject is either trivialized or dismissed as untrue. Though the economic injustices of other nations can be easily recognized, their own situation, which is comparable or worse, is free of criticism. Michael Parenti, a sociologist from Yale, states, "If the subject of class is introduced, it is usually dismissed as an outworn Marxist' notion having no relevance to modern America" (Parenti 55). America still represents to many a place of equality where success is determined by chance and choice, ignoring that if this was the case, income would be distributed more evenly than the current imbalance towards the upper class. Thus, while overtly acknowledging and emphasizing the discriminations based on race and gender, the American public accepts unfair social stratification as very legitimate. The reality is that the economic gap within the classes is great and growing. According to the U.S. Census Bureau, the gap between the richest and "everyone else" in America is the greatest it has been since the end of WWII. Professor Edward N. Wolff of N.Y.U. states that the current era represents "the most extreme level of wealth concentration since the late 1920's" (Gates 17). "Paul Samuelson explains that the present income structure is grossly unfairly distributed. If we made an income pyramid out of a child's blocks, with each layer portraying $1,000 of income, the peak would be far higher than the Eiffel Tower, but almost all of us would be within a yard of the ground'" (Kalra 10).
Tuesday, October 1, 2019
Law of torts Essay
The word tort is of French origin and is equivalent of the English word wrong, and the Roman law term delict. It is derived from the Latin word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked. It is commonly used to mean a breach of duty amounting to a civil wrong. Definition: a tort is defined as a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. A tort arises due to a person’s duty to others in generally which is created by one law or the other. A person who commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one, they are called joint tortfeaser. Their wrongdoing is called tortuous act and they are liable to be sued jointly and severally. The principle aim of the Law of tort is compensation of victims or their dependants. Grants of exemplary damages in certain cases will show that deterrence of wrong doers is also another aim of the law of tort. OBJECTIVES OF LAW OF TORTS. i. To determine rights between parties to a dispute. ii. To prevent the continuation or repetition of harm e. g. by giving orders of injunction. iii. To protect certain rights recognized by law e. g. a person’s reputation or good name. iv. To restore property to its rightful owner e. g. where property is wrongfully taken away from its rightful owner. CONSTITUENTS OF TORT To constitute a tort or civil injury: 1. There must be a wrongful act or omission. 2. The wrongful act or omission must give rise to legal damage or actual damage and; 3. The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages. The wrongful act or omission may however not necessarily cause actual damage to the plaintiff in order to be actionable. Certain civil wrongs are actionable even though no damage may have been suffered by the plaintiff. 1. Wrongful act. The act complained of should, under the circumstances be legally wrongful as regards the party complaining, i. e. it must prejudicially affect him in some legal right. This must be an act or an omission. 2. Damage. The sum of money awarded by court to compensate damage is called damages. Damage means the loss or harm caused or presumed to be suffered by a person as a result of some wrongful act of another. Legal damage is not the same as actual damage. Every infringement of the plaintiff’s private right or unauthorized interference with his property gives rise to legal damage. There must be violation of a legal right in cases of tort. The real significance of legal damage is illustrated by two maxims namely: Injuria sine damno and Damnum sine injuria. Damnum is meant damage in the substantial sense of money, loss of comfort, service, health or the like. By injuria is meant a tortuous act. Injuria sine damno. This is the infringement of and absolute private right without any actual loss or damage. The phrase simply means Injury without damage. The person whose right is infringed has a cause of action e. g. right to property and liberty are actionable per-se i. e. without proof of actual damage. Example: Refusal to register a voter was held as an injury per-se even when the favorite candidate won the election Damnum sine injuria This is the occasioning of actual and substantial loss without infringement of any right. The phrase simply means Damage without injury. No action lies. Mere loss of money or moneys’ worthy does not constitute a tort. There are many acts, which though harmful are not wrongful, and give no right of action. i. e. damage without injury. 3. Remedy. The essential remedy for a tort is action for damages, but there are other remedies also e. g. injunction, specific performance, restitution etc. Further, damages claimable in tort action are unliquidated damages. The law of tort is said to be a founded of the maxim- Ubi jus ibi remedium i. e. there is no wrong without a remedy. Other elements of tort In certain cases, the following may form part of requirements for a wrong to be tortuous. 1. Voluntary and involuntary acts: acts and omissions may be voluntary or involuntary. An involuntary act does not give rise to liability in tort. 2. Mental elements: Plaintiff may be required to show some fault on the part of the defendant. Fault here means failure to live up to some ideal standard of conduct set by law. To determine fault, the following may be proved:- a) Malice: In the popular sense, malice means ill-will or spite. In Law, it means i) intentional doing of a wrongful act and, ii) improper motive. b) Intention: i. e. where a person does a wrongful act knowing the possible consequences likely to arise, he is said to have intended that act, and is therefore at fault. c) Recklessness: i. e. where a person does an act without caring what its consequences might be, he is at fault. d) Negligence: i. e. where the circumstances are such that a person ought to have foreseen consequences of his act and avoided it altogether, he would be at fault if he bothers not. e) Motive: Motive is the ulterior objective or purpose of doing an act and differs from intention. 3. Malfeasance, misfeasance and non-feasance: ‘Malfeasance? refers to the commission of a wrongful act which is actionable per-se and do not require proof of intention or motive. „Misfeasance? is applicable to improper performance of some lawful act, for example, where there is negligence. ?Non-feasance? refers to the omission to perform some act where there is an obligation to perform it. Non-feasance of a gratuitous undertaking does not impose liability, but misfeasance does. Distinctions between Contract and Tort. 1. In a contract the parties fix the duties themselves whereas in tort, the law fixes the duties. 2. A contract stipulates that only the parties to the contract can sue and be sued on it (privity of contract) while in tort, privity is not needed in order to sue or be sued. 3. In the case of contract, the duty is owed to a definite person(s) while in tort, the duty is owed to the community at large i. e. duty in- rem. 4. In contract remedy may be in the form of liquidated or unliquidated damages whereas in tort, remedies are always unliquidated. Distinctions between Tort and Crime 1. In tort, the action is brought in the court by the injured party to obtain compensation whereas in crime, proceedings are conducted by the state. 2. The aim of litigation in torts is to compensate the injured party while in crime; the offender is punished by the state in the interest of the society. 3. A tort is an infringement of the civil rights belonging to individuals while a crime is a breach of public rights and duties, which affect the whole community. 4. Parties involved in criminal cases are the Prosecution verses the Accused person while in Torts, the parties are the Plaintiff versus the Defendant. GENERAL DEFENSES IN TORT Generally, a plaintiff has to prove his case in a court of law and if he does so successfully, judgment is passed against the defendant. The defendant on the other hand may defend the case against himself successfully, thus making the plaintiff’s action fail. There are some general defenses which may be taken to tortuous liability. 1. Volenti Non fit Injuria The general rule is that a person cannot complain for harm done to him if he consented to run the risk of it. For example a boxer, foot baler, cricketer, etc.cannot seek remedy where they are injured while in the game to which they consented to be involved. Where a defendant pleads this defense, he is in effect saying that the plaintiff consented to the act, which he is now complaining of. It must be proved that the plaintiff was aware of the nature and extent of the risk involved. There are however some limitations to the application of the maxim of volenti non fit injuria: -First, no unlawful act can be legalized by consent, leave or license. -Secondly, the maxim has no validity against an action based on breach of statutory duty. -Thirdly, the maxim does not apply in rescue cases such as where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection as in a member of his family, or is a mere stranger to whom he owes no such special duty. -Fourthly, the maxim does not apply to cases of negligence. -Lastly, this maxim does not apply where the act of the plaintiff relied upon to establish the defense under the maxims the very act which the defendant was under a duty to prevent. 2. Inevitable Accident. This means an accident, which cannot be prevented by the exercise of ordinary care, caution or skill of an ordinary man. It occurs where there is no negligence on the part of the defendant because the law of torts is based on the fault principle; an injury arising out of an inevitable accident is not actionable in tort. 3. Vis Major (ACT OF GOD). This is also an inevitable accident caused by natural forces unconnected with human beings e. g. earthquake, floods, thunderstorm, etc. 4. Necessity: Where intentional damage is done so as to prevent greater damage, the defense of necessity can be raised. Sometimes a person may find himself in a position whereby he is forced to interfere with rights of another person so as to prevent harm to himself or his property. The general rule is that a person should not unduly interfere with the person or property of another. It is only in exceptional cases of imminent danger that the defense of necessity maybe upheld. It is based on the principle that the welfare of the people is the supreme law. Whether the defense of necessity would extend to inflicting injuries to the person is debatable. 5. Self Defense Everyone has a right to defend his person, property and family from unlawful harm. A person who is attacked does not owe his attacker a duty to escape. Everyone whose life is threatened is entitled to defend himself and may use force in doing so. The force used must be reasonable and proportionate to that of the attacker. Normally, no verbal provocation can justify a blow. An occupier of property may defend it where his right or interest therein is wrongfully interfered with. However, in protecting one’s property, he cannot do an act which is injurious to his neighbour; neither can he adopt a course which may have defect of diverting the mischief from his own land to the land of another person which would otherwise have been protected. 6. Mistake The general rule is that a mistake is no defense in tort, be it a mistake of law or of fact. Mistake of fact, however, maybe relevant as a defense to any tort in some exceptional circumstances e. g.malicious prosecution, false imprisonment and deceit. Thus where a police officer arrests a person about to commit a crime but the person arrested turns out to be innocent the police officer is not liable. Mistake however, cannot be a defense in actions for defamation. 7. Statutory Authority When the commission of what would otherwise be a tort, is authorized by a statute the injured person is remediless, unless so far as the legislature has thought it proper to provide compensation to him. The statutory authority extends not merely to the act authorized by the statute but to all inevitable consequences of that act. But the powers conferred by the legislature should be exercised with judgment and caution so that no unnecessary damage is done, the person must do so in good faith and must not exceed the powers granted by the statute otherwise he will be liable. 8. Novus Actus Interveniens. This is when a chain of events results from a tort so that the loss suffered is not within the scope of those that would naturally occur from the first tort. To refer to a novus actus interveniens is in fact merely another way of saying that the loss was not reasonably foreseeable. This however, does not become an excuse if: – a). An act done in the agony of the moment created by the defendants tort. E. g. If you threw a lighted firework into a crowded market place. Several people threw the firework from their vicinity until it explodes on another? s face. b). Where the intervening act is a rescue. 9. 9 Contributory negligence The defendant may rely upon this defense if the plaintiff is also to blame for his suffering. The defendant must prove that: – The plaintiff exposed himself to the risk by his act or omission. – The plaintiff was at fault or negligent. – The plaintiff’s negligence or fault contributed to his suffering. This defense does not absolve the defendant from liability. It merely apportions compensation of damages between the parties who contributed to the loss. This defense is not available if the plaintiff is a child of tender age. TRESPASS Trespass as a wrong has a very wide application. It could mean unlawful presence in another’s closure or land or premises, offence to the body of a person or even mean wrongful taking of goods or chattels. To constitute the wrong of trespass, neither force nor unlawful intention not actual damage nor breaking of an enclosure is necessary. Every invasion of private property, be it ever so minor is a trespass. Trespass may take any of the following three forms: a) Trespass to land. b) Trespass to person, and; c) Trespass to goods. TRESPASS TO LAND Trespass to land may be committed by any of the following acts: – a) Entering upon the land or property of the plaintiff b) Continuing to remain in such land or property on expiry of license i. e. Permission to be in it. c) Doing an act affecting the sole possession of the plaintiff, in each case without justification. d) By throwing objects into another’s land. e) By using the right of entry for purposes other than for which it was allowed. Generally, trespass to land is a civil wrong. However it may give rise to criminal proceeding; It is important to note that trespass to land is actionable per se, that is, without proof of special damage. In other words, it is not a defense that no damage has been caused by the trespass. Remedies for Trespass to land. 1. Defense of property: He may have to use force till he gets possession but not unnecessary amount of force of violence. This is called remedy of ejection. 2. Expulsion of trespasser especially in case of continued trespass. 3. Distress damage feasant: He may seize and retain them impounded as a pledge for the redress of the injury sustained. 4. Damages: This means recovery of monetary compensation from the defendant. 5. Injunction: This may be obtained to ward off a threatened trespass or to prevent a continuing trespass. 6. Action for recovery of Land: In case the plaintiff is wrongfully dispossessed of his land he can sue for the recovery of the land from the defendant. Defenses against Trespass on land. i. Statutory authority: Where the law allows entry upon land. ii. Entry by license: Where entry is authorized by land owner, unless authority is abused. iii. Adverse possession: Where land has been peacefully possessed for over 12 years without disturbance. iv. Act of Necessity: Example is entry to put off fire for public safety is justifiable. v. By order of court of law: This may be in execution of court order e. g. by court brokers. vi. Self-defense: a trespasser may be excused as having been done in self-defense or in the defense of a person’s goods, chattels or animals. vii. Re-entry on land: A person wrongfully dispossessed of land may re-take possession of it if it? s possible for him to do so peacefully and without the use of force. In this case, he will not be liable for trespass to land. viii. Re-taking of goods and chattels: if person unlawfully takes the goods and chattels of another upon his own land, he impliedly licenses the owner of the goods to enter his land for the purpose of recaption. TRESPASS TO PERSON Any direct interference with the person (body) of another is actionable in the absence of any lawful justification. Trespass to person includes assault, battery and false imprisonment. Assault Assault means conduct or threat to apply violence on the person of the plaintiff in circumstances that may create apprehension that the latter is in real danger. It is committed when a person threatens to use force against the person of another thus putting the other person in fear of immediate danger. Examples: Shaking of fist, pointing of a gun menacingly at another, letting go a dog fiercely etc. It is important to note that not every threat amounts to assault. There must be the means of carrying out the threat and the capacity to effect the threat. The person threatened must be put in fear of immediate danger. An assault is a tort as well as a crime. The intention as well as the act makes assault. Mere words do not amount to assault unless it gives the user? s gesture such a meaning as may amount to assault. Battery Battery means the actual application (use) of force against the person of another without lawful justification. It is immaterial whether the force is applied directly or indirectly to the person. But there must be actual bodily contact between the plaintiff and the defendant. Examples: – striking of another person or touching another person in a rude manner, pouring water on or spitting on another person. Assault and battery is actionable per-se (damage does not have to be proved). False Imprisonment False imprisonment means total restraint or deprivation of the liberty of a person without lawful justification. The duration of the time of detention is immaterial. False imprisonment may be committed even without the plaintiff’s knowledge e. g. by locking him up in his bedroom while he is asleep and then reopening the door before he has awoken. In such a case the plaintiff may still sue. It is not however necessary that the person’s body should be touched. A person is not only liable for false imprisonment when he directly arrests or detains the plaintiff, but also when he actively promotes or causes the arrest or detention of the person. Defenses to assault battery & false imprisonment a). Volenti non-fit injuria: A person who has voluntarily consented to come into actual bodily contact with another e. g. in sports, etc cannot later complain against another person who touches him in the course of playing the game. b). Private defense: A person is within his legal rights to defense himself, his property or his family. But he must use reasonable force in doing so. c). Legal authority: A police officer has statutory authority to arrest a person in the preservation of public peace. Here reasonable force may be used to effect such arrest. d). Forceful entry; The rightful owner of property is entitled to use reasonable force to prevent forcible entry on his land or to repossess his land or goods, which are wrongfully in the possession of another. e). Parental authority: People such as parents, teachers, etc can inflict reasonable punishment for the correction and benefit of the children. Thus a parent exercising parental authority can chastise or even lock-up a child reasonably without being guilty of assault, battery or false imprisonment , nor would a school-teacher. TRESPASS TO GOODS A person can sue for trespass to goods where there is wrongful interference with goods, which are in his possession. Such interference includes wrongful conversion, actual taking of or a direct and immediate injury to the goods. The tort of trespass to goods is meant to protect personal property. To constitute the tort of trespass to goods, the plaintiff must show: – 1. That at the time of trespass, he had the possession of the goods. 2. That his possession had been wrongfully interfered with or disturbed. Trespass to goods are of three categories namely: – 1. Trespass to chattels. 2. Goods Detenue and; 3. Conversion. Trespass to Chattels It means interference with goods, which are in the actual or constructive possession of the plaintiff. It may involve: – Removal of goods from one place to another, – Using the goods or; – Destroying or damaging the goods wrongfully. For an action to be sustainable: – The trespass must be direct. – The plaintiff must be in possession of the chattel at the time of the interference. – The tort is actionable per-se. Detenue This means wrongful withholding or detention of goods from the person entitled to their immediate possession. For example: If A lends his book to Band B refuses, to return it to A, A is said to have committed the tort of Detenue. Conversion This means dealing with goods in a manner that is inconsistent with the right of the person in possession of them. This tort protects a person’s interest in dominion and control of goods. The plaintiff must be in possession or have the right to immediate possession. For example: If A intentionally sells B’s goods to C without any authority from B, A is guilty of conversion. Acts of conversion may be committed when property is wrongfully taken, parted with, sold, retained, destroyed or the lawful owner’s right is denied. Defenses to trespass to goods. Limited defenses are available to a defendant against a wrong to goods. The defendant, however, can claim the right of lien. He may also claim other general defenses like statutory or judicial authority. Remedies to trespass to goods. i. Recaption: The plaintiff can recapture his goods that have been wrongfully taken away from him provided he uses reasonable force. ii. Order for specific restitution: The court may also order for specific restitution of the goods where damages is not adequate a remedy. iii. Damages: The plaintiff is entitled to claim the full value of the goods and damages for any inconvenience suffered by him. OCCUPIERS LIABILITY At common law, an occupier owns a common duty of care to his invites or invitee while within their premises and is generally liable for any injury to them or damage to their goods by reason of condition to their premises. The law relating to occupiers liability in Kenya is contained in the Occupiers Liability Act Cap 34 laws of Kenya. The object of the Act was to amend the law relating to liability of occupiers and to others for injury or damages resulting persons or goods lawfully on any land or other property. Under the Act, an occupier owes a common duty of care to all invitees and their goods. However the common duty of care may be modified or restricted by agreement. The occupier is not liable where the accident occurs through the defective work of an independent contractor provided he can establish that the contractor was efficient as far as he was able and that he had inspected the work done. Defenses An occupier may escape liability if the injury or damage is occasioned by danger of which the occupier had warned the invitee. The occupier may escape liability in respect of any damages caused to the invitee if occasioned by the fault of an independent contractor. The common duty of care does not impose on an occupier any obligation in respect of risks willingly accepted by the invitee. The occupier owes no common duty of care to trespassers and is not liable for any injury or damage they may suffer while in his premises. NEGLIGENCE Negligence means the breach of a duty caused by the omission to do something, which a reasonable man would do, or doing of something, which a prudent and reasonable man would not do. Negligence consist of neglect to use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect, the person has suffered injury to his person or property. The plaintiff suing under tort of negligence must prove that: 1. The defendant owed him a duty of care, The circumstances must be such that the defendant knew or reasonably ought to have known that acting negligently would injure the plaintiff. A road user owes other users a legal duty of care. An inviter owes his invitees a legal duty of care. A manufacturer of products owes a legal duty of care to consumers. As a general rule, every person owes his neighbor a legal duty of care. The standard of care expected of the defendant is that of a reasonable man. This is a man of ordinary prudence. A reasonable person is an objective stand created by law for all circumstances. Where professionals or experts are involved, the standard of care is that of a reasonably competent expert in that field. There are some circumstances however where not even a reasonable person could have foreseen the plaintiff suffering any loss, in which case, there is no liability upon the person who has committed the injurious act. 2. There has been a breach of that legal duty of care. The plaintiff has to prove that there was a duty imposed by common law, statute or otherwise, upon the defendant and that the defendant was in breach of this duty. However, at certain times, negligence is presumed without proof of breach of duty by the plaintiff. This is in the case of res-ipsa loquitor. RES IPSA LOQUITOR As a general rule, the burden of proving negligence lies with the plaintiff. He must prove that the defendant owed him a duty of care, that the defendant has breached that duty and that he has suffered damage. However, in certain cases, the plaintiff’s burden of proof is relieved by the doctrine of res ipsa loquitor. Where it is applicable Res ipsa Loquitor means that ‘thing or facts speaks for themselves’. This for example, occurs where an accident happens in circumstances in which it ought not to have occurred e. g.a car traveling on a straight road in clear weather and good visibility suddenly swerves off the road and overturns, where a barrel of flour suddenly drops from a warehouse, etc. Such an accident ought not to have occurred except for the negligence of the defendant. Res ipsa loquitor is a rule of evidence and not of law. It merely assists the plaintiff in proving negligence against the defendant. Before it can be relied upon, three conditions must be satisfied, namely: a) The thing inflicting the injury must have been under the control of the defendant or someone whom he controls. b) The event must be such that it could not have happened without negligence and; c) There must be no evidence or explanation as to why or how the event occurred, as the accident is such as in the ordinary course of things does not happen if those who have the duty use proper care. 3. Damage: For the plaintiff to succeed in claim of Negligence, he must prove that he suffered harm, loss or prejudice, unless this is presumed as in the case of Injuria sine damnum. No damage, no negligence. Defenses to Negligence 1. Contributory negligence: This defense is available to the defendant in circumstances in which the plaintiff is also to blame for his suffering. The effect of this defense is to reduce the amount recoverable by the plaintiff as damages by the extent of his contribution. Liability is apportioned between the parties. 2. Volenti non fit injuria: This is the doctrine of voluntary assumption of risk. 3. Statutory authority: The defendant must prove in this defense that he acted in accordance with the provisions of the Act. VICARIOUS LIABILITY Vicarious liability means the liability of one person for the torts committed by another person. The general rule is that every person is liable for his own wrongful act. However, in certain cases a person may be made liable for wrongful acts committed by another person. For example: An employer may be held liable for the tort of his employees. Similarly, a master is liable for any tort, which the servant commits in the course of his employment. The reason for this rule of common law is that: As the master has the benefit of his servant’s service he should also accept liabilities. The master should be held liable as he creates circumstances that give rise to liability. The servant was at mere control and discretion of the master. Since the master engages the servant, he ought to be held liable when gagging a wrong person. The master is financially better placed than the servant. It must be proved that a person was acting as a servant and that the said tort was committed in the course of his employment before a master can be sued for a tort committed by his servant. MASTER AND SERVANT A servant means a person employed under a contract of service and acts on the orders of his master. The master therefore controls the manner in which his work is done. The concept of vicarious liability is based on the principle of equity that employee is normally people of meager resources and it is therefore only fair that the injured person is allowed to recover damages from the employers. Therefore a master is liable for the torts committed by his servant. To prove liability under master-servant relationship the servant must have acted in the course of his employment A master is liable whether the act in a question was approved by him or not. It is immaterial that the alleged act was not done for the benefit of the master. But the master is not liable for torts committed beyond the scope of employment. INDEPENDENT CONTRACTOR An independent contract means a person who undertakes to produce a given result without being controlled on how he achieves that result. These are called contract for service. Because the employer has no direct control of him, he (the employer) is not liable for his wrongful acts. a) However, there are certain cases (exception) under which the employer may still be liable. These are: – a). Where the employer retains his control over the contractor and personally interferes and makes himself a party to the act, which causes the damage. b) b). Where the thing contracted is in itself a tort. c) c). Where the thing contracted to be done is likely to do damage to other people’s property or cause nuisance. d) d). Where there is strict liability without proof of negligence STRICT LIABILITY Strict liability means liability without proof of any fault on the part of the wrongdoer. Once the plaintiff is proved to have suffered damage from the defendant’s wrongful conduct, the defendant is liable whether there was fault on his part or not. Strict liability must be distinguished from absolute liability. Where there is absolute liability, the wrong is actionable without proof of fault on the part of the wrong-doer and in addition, there is no defense whatsoever to the action. Where there is strict liability, the wrong is actionable without proof of fault but some defenses may also be available. Defenses i. Acts of God: Act of God is a good defense to an action brought under the rule. ii. Plaintiffs’ Fault: If the escape of the thing is due to the fault of the plaintiff, the defendant is not liable. This is because the plaintiff has himself brought about his own suffering. iii. Plaintiff’s consent or benefit: That the accumulation or bringing of the thing was by consent of the plaintiff. iv. Statutory authority: That the thing was brought into the land by requirement of an Act of parliament. v. Contributory negligence: if the plaintiff was also to blame for the escape. vi. Wrongful act of third party: the defendant may take the defence of the wrongful acts of a third party though he may still be held liable in negligence if he failed to foresee and guard against the consequences to his works of that third party’s act. DEFAMATION Defamation means the publication of a false statement regarding another person without lawful justification, which tends to lower his reputation in the estimation of right thinking members of society or which causes him to be shunned or avoided or has a tendency to injure him in his office, professions or trade. It has also been defined as the publication of a statement that tends to injure the reputation of another by exposing him to hatred, contempt or ridicule. Following are the essential elements of defamation: – i. False statement: The defendant must have made a false statement. If the statement is true, it’s not defamation. ii. Defamatory statement: The statement must be defamatory. A statement is said to be defamatory when it expose the plaintiff to hatred, contempt, ridicule or shunning or injures him in his profession or trade among the people known to him. iii. Statement refers the plaintiff: The defamatory statement must refer to the plaintiff.
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