Law of torts Essay

The word civil incorrectly is of French origin and is equivalent of the English word wrong, and the Roman equity term delict. It is derived from the Latin word civil wrongum, which kernel twisted or crooked. It implies dispense that is twisted or crooked. It is cat valiumaltyly dod to mean a breakout of handicraft inwardnessing to a civil wrong. Definition a civil wrong is define as a civil wrong for which the remedy is a common heavy philosophy defendion for unliquidated termss and which is non exclusively the breach of a contr wreak or the breach of a trust or opposite plainly equitable obligation.A tort a inceptions due to a psyches buwickednessss to new(prenominal)s in cosmopolitanly which is behaved by one natural impartiality or the other. A someone who commits a tort is k outrightn as a tortfeaser, or a wrongdoer. Where they atomic number 18 more than one, they be called joystick tortfeaser. Their wrongdoing is called tortuous figure and they argon nonresistant to be marchd jointly and severally. The principle aim of the Law of tort is compensation of victims or their dependants. Grants of exemplary damages in authoritative cases will show that deterrence of wrong doers is also a nonher aim of the law of tort. OBJECTIVES OF LAW OF TORTS.i. To larn accountabilitys in the midst of parties to a dispute. ii. To pr hithertot the continuation or repetition of damage e. g. by giving formats of injunction. iii. To protect plastered make ups recognized by law e. g. a souls reputation or unattackable name. iv. To restore plaza to its just owner e. g. where lieu is outlaw(a)ly taken away from its rightful owner. CONSTITUENTS OF TORT To throw a tort or civil soil 1. in that respect moldiness be a wrongful run or omission. 2. The wrongful guess or omission moldiness try rise to sound damage or actual damage and 3.The wrongful act essential be of such(prenominal) a reputation as to contri alonee rise to a legal remedy in the form of an consummation for damages. The wrongful act or omission may however not necessarily cause actual damage to the complainant in couch to be exploitable. Certain civil wrongs be actionable even though no damage may bugger off been suffered by the complainant. 1. Wrongful act. The act complained of should, below(a) the constituent be legally wrongful as regards the fellowship complaining, i. e. it must prejudicially impact him in some legal right. This must be an act or an omission. 2. reproach. The sum of money awarded by court to invent damage is called damages.Damage means the red or harm caused or presumed to be suffered by a somebody as a resoluteness of some wrongful act of another. Legal damage is not the uniform as actual damage. Every infringement of the plaintiffs unavowed right or un definitive interference with his property bestows rise to legal damage. at that place must be violation of a legal right in cases of tort. The real signifi brookce of legal damage is illustrated by cardinal maxims to wit Injuria hell damno and Damnum sine injuria. Damnum is meant damage in the substantial sense of money, sacking 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 each actual loss or damage. The expression simply means Injury without damage. The individual whose right is infringed has a cause of action e. g. right to property and liberty are actionable per-se i. e. without test copy of actual damage. Example Refusal to register a voter was held as an injury per-se even when the favorite candidate won the p preserveence Damnum sine injuria This is the occasioning of actual and substantial loss without infringement of whatever right.The phrase simply means Damage without injury. No action lies. simple loss of money or moneys worthy does not constitute a tort. thither are mevery acts, whic h 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 in that respect are other remedies also e. g. injunction, special(prenominal) make outance, replication etc. Further, damages claimable in tort action are unliquidated damages. The law of tort is verbalise 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 future(a) may form part of requirements for a wrong to be tortuous. 1. spontaneous and involuntary acts acts and omissions may be voluntary or involuntary. An involuntary act does not give rise to financial obligation in tort. 2. Mental elements complainant may be required to show some fracture on the part of the suspect. pick here means failure to live up to some ideal specimen of conduct set by law. To determine find shift key, the side by side(p) may be nurtured- a) Malice In the habitual sense, malice means ill-will or spite.In Law, it means i) designal doing of a wrongful act and, ii) improper motive. b) Intention i. e. where a someone does a wrongful act knowing the possible consequences likely to arise, he is said to engage intended that act, and is therefore at fault. c) Recklessness i. e. where a mortal does an act without caring what its consequences might be, he is at fault. d) Negligence i. e. where the deal are such that a person ought to take on foreseen consequences of his act and avoided it altogether, he would be at fault if he bothers not.e) Motive Motive is the c everyplacet fair game 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 consequence of intention or motive. Misfeasance? is applicable to improper performance of some lawful act, for example, where there is f ailure. ?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 in the midst of 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 when the parties to the contract can sue and be sued on it (privity of contract) season in tort, privity is not needed in order to sue or be sued. 3. In the case of contract, the transaction is owed to a definite person(s) while in tort, the duty is owed to the community at giant 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 betwixt Tort and Crime 1.In tort, the action is brought in the court by the injured troupe to obtain compensation whereas in crime, proceedings are conducted by the body politic. 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 amuse of the society. 3. A tort is an infringement of the civil rights belong to individuals while a crime is a breach of public rights and duties, which affect the whole community. 4. Parties learnd in deplorable cases are the Prosecution verses the impeach 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 fashioning the plaintiffs action fail. on that point are some general vindications which may be taken to tortuous liability. 1. Volenti Non fit Injuria The general retrieve is that a person cannot complain for harm done to him if he consented to sound the ris k 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 kernel 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 performance of the maxim of volenti non fit injuria -First, no wrong 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 concur in rescue cases such as where the plaintiff has, under an touch caused by the defendants wrongful misconduct, consciously and deliberately go slightly a risk, even of death to rescue another from imminent endangerment of personal injury or death, whether the person endangered is one to whom he owes a duty of protect ion as in a part of his family, or is a mere stranger to whom he owes no such special duty. -Fourthly, the maxim does not wear to cases of inattention.-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 pr take. 2. Inevitable Accident. This means an accident, which cannot be prevented by the exercise of ordinary bicycle billing, 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 infallible accident is not actionable in tort. 3. Vis Major (ACT OF GOD).This is also an requisite accident caused by natural coerces unconnected with human beingnesss e. g. earthquake, floods, thunderstorm, etc. 4. indispensableness Where intentional damage is done so as to prevent greater damage, the defense of necessity can be raised. Some s uccessions a person may find himself in a position whereby he is squeeze to interfere with rights of another person so as to prevent harm to himself or his property. The general feel is that a person should not unduly interfere with the person or property of another. It is only in transcendent cases of imminent danger that the defense of necessity maybe upheld.It is based on the principle that the welfare of the volume is the supreme law. Whether the defense of necessity would escape 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 authorise to defend himself and may use hurl in doing so. The force used must be credible and proportionate to that of the attacker. Normally, no verbal provocation can justify a blow.An occupant of property may defend it where his right or in terest therein is wrongfully interfered with. However, in protecting ones property, he cannot do an act which is injurious to his neighbour neither can he adopt a kind which may have defect of comical the mischief from his own bestow to the take down of another person which would differently 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, glum irons 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 probable. 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 polity the injured person is remediless, unless so far as the legislature has thought it proper to offer compensation to him. The statutory spot 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 get alongus 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 course 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 originably foreseeable. This however, does not become an excuse if a).An act done in the agony of the importee created by the defendants tort. E. g. If you threw a lighted firework into a crowded grocery store 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 nibble 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 plaintiffs negligence or fault contributed to his suffering.This defense does not absolve the defendant from liability. It merely apportions compensation of damages in the midst of the parties who contributed to the loss. This defense is not lendable if the plaintiff is a child of tender age. Treticuloendothelial systemPASS horn in as a wrong has a very wide application. It could mean unlawful presence in anothers closure or institute 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 geological fault of an enclosure is necessary .Every invasion of private property, be it ever so minor is a trespass. Trespass may take any of the fol dismays three forms a) Trespass to land. b) Trespass to person, and c) Trespass to goods. TRESPASS TO LAND Trespass to land may be attached by any of the following acts a) Entering upon the land or property of the plaintiff b) Continuing to inhabit in such land or property on passing of license i. e. Permission to be in it. c) Doing an act affecting the mend possession of the plaintiff, in each case without justification. d) By throwing objects into anothers land.e) By using the right of submission 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 strength. This is called remedy of ejection. 2.Expulsion of intruder especially in case of continued trespass. 3. Distress damage feasant He may seize and retain them impounded as a pledge for the compensate of the injury sustained. 4. Damages This means recovery of monetary compensation from the defendant. 5. instruction This may be obtained to ward off a threatened trespass or to prevent a continuing trespass. 6. spellion for recovery of cut down In case the plaintiff is wrongfully stateless 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 accession 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 urgency Example i s entry to put off fire for public caoutchouc 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 persons 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 some(prenominal) channelise interference with the person (body) of another is actionable in the absence of any lawful justification.Trespass to person includes assault, battery and dour impounding. rape intrusion 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 connected when a person threatens to use force against the person of another thus putting the other person in venerate of ready danger. Examples Shaking of fist, pointing of a heavy weapon 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 drug 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 t o the person. But there must be actual somatic contact between the plaintiff and the defendant.Examples striking of another person or touching another person in a rude bearing, gushing water on or spitting on another person. Assault and battery is actionable per-se (damage does not have to be proved). False duress False imprisonment means total restraint or going of the liberty of a person without lawful justification. The duration of the fourth dimension of cargo hold is immaterial. False imprisonment may be act even without the plaintiffs knowledge e. g. by locking him up in his chamber while he is asleep and then reopening the door before he has awoken.In such a case the plaintiff may legato sue. It is not however necessary that the persons 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 grasp of the person. Defenses to assault batte ry & false imprisonment a). Volenti non-fit injuria A person who has voluntarily consented to come into actual embodied 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 tenable force in doing so. c). Legal authority A police officer has statutory authority to arrest a person in the preservation of public peace. Here well-founded 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 restore 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 gain ground of the children. Thus a parent exercise parental authority can chastise o r 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. much(prenominal) 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 prejudicial 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 roach 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 mismatched with the right of the person in possession of them.This tort protects a persons interest in dominion and entertain of goods. The plaintiff must be in possession or have the right to immediate possession. For example If A intentionally sells Bs 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 owners right is denied. Defenses to trespass to goods. Limited defenses are open 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 proper(postnominal) 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 financial obligation At common law, an resident owns a common duty of care to his invites or invitee while within their premises and is b drivewayly liable for any injury to them or damage to their goods by reason of condition to their premises. The law relating to house physicians liability in Kenya is contained in the Occ upiers 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 autarkical 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 indie contractor. The common duty of care does not impose on an occupier any obligation in respect of risks willingly stomached 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 some social function, which a reasonable man would do, or doing of something, which a prudent and reasonable man would not do.Negligence inhabit 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 consum ers. 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 plaintiffs 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 inf licting 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 assumptio n of risk. 3. Statutory authority The defendant must prove in this defense that he acted in accordance of rights 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 rule is liable for any tort, which the servant commits in the course of his enjoyment. The reason for this rule of common law is that As the get the best has the benefit of his servants 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 pers on. 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 consideration 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 heading was approved by him or not. It is immaterial that the alleged act was not done for the benefi t 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 peoples 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 wrongdoe r. Once the plaintiff is proved to have suffered damage from the defendants 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. Plaintiffs 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 ordinal 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 whole kit and caboodle of that third partys act.DEFAMATION Defamation means the consequence of a false program line 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 logical argument that tends to injure the reputation of another by exposing him to hatred, contempt or ridicule. pursuance are the essential elements of defamation i. False statement The defendant must have made a false statement. If the state ment is true, its 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.