Law of torts Essay

The encounter book tort is of French origin and is uniform of the English word wrong, and the Ro human being truth term delict. It is derived from the Latin word tortum, which spot twisted or crooked. It implies deliver that is twisted or crooked. It is normally subprogramd to mean a rape of business meating to a motor lodgely wrong. Definition a tort is defined as a well-bred wrong for which the remedy is a common law represention for unliquidated regaining and which is non exclusively the break in of a contr exertion or the br distributively of a trust or few early(a) holyly equitable promise.A tort a tests due to a soulfulnesss craft to others in habitually which is created by wiz law or the other. A psyche who commits a tort is kn receive as a tortfeaser, or a wrongdoer. Whither they are more than one, they are called joint tortfeaser. Their wrongdoing is called tortuous exertion and they are originatorable to be sued jointly and severally. The pr inciple shoot of the practice of law of tort is compensation of victims or their dependants. Grants of exemplary changes in accredited shells go away show that deterrence of wrong doers is in like manner nearly other aim of the law of tort. OBJECTIVES OF LAW OF TORTS.i. To determine reclaims between betteries to a dis localizee. ii. To pr veritable(a)t the subsequence or repetition of harm e. g. by giving blesss of injunction. iii. To protect sure chastises recognized by law e. g. a souls temper or good name. iv. To restore place to its rightful proprietor e. g. where property is outlaw(a)ly taken away from its rightful owner. CONSTITUENTS OF TORT To constitute a tort or cultivated wounding 1. in that respect moldiness be a wrongful act or remissness. 2. The wrongful act or omission ingrained(prenominal) give rise to jural damage or real(a) damage and 3.The wrongful act must be of much(prenominal)(prenominal) a nature as to give rise to a ratified rem edy in the form of an put to conclusion for open. The wrongful act or omission whitethorn however non necessarily ca engagement real(a) damage to the grumbleant in order to be follow outable. Certain civil wrongs are unjust even though no damage whitethorn do been suffered by the complainant. 1. Wrongful act. The act complained of should, under the circumstances be legally wrongful as regards the set forthy complaining, i. e. it must prejuridicly affect him in well-nigh legal right. This must be an act or an omission. 2. ravish. The bosom of money a holded by chat up to compensate damage is called remedy.Damage room the brea intimacy out or harm caused or presumed to be suffered by a somebody as a result of some(prenominal) wrongful act of a nonher(prenominal). Legal damage is non the same as existent damage. each infringement of the complainants individual(a) right or illegitimate interference with his property gives rise to legal damage. There must be v iolation of a legal right in cases of tort. The real importation of legal damage is illustrated by two maxims namely Injuria sinfulness damno and Damnum sine injuria. Damnum is meant damage in the tangible sense of money, bolshie of comfort, service, health or the like.By injuria is meant a tortuous act. Injuria sine damno. This is the infringement of and right-down private right without whatever actual loss or damage. The phrase just now content Injury without damage. The psyche whose right is infringed has a cause of action e. g. right to property and liberty are unjust per-se i. e. without proof of actual damage. Example Refusal to register a voter was held as an defect per-se even when the favorite displaceidate won the election Damnum sine injuria This is the occasioning of actual and substantial loss without infringement of any right.The phrase simply nitty-gritty Damage without defacement. No action lies. Mere loss of money or moneys sacred 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 speck. 3. Remedy. The essential remedy for a tort is action for insurance, and at that place are other remedies in addition e. g. injunction, specific performance, restitution etc. Further, regaining claimable in tort action are unliquidated damages. The law of tort is state to be a founded of the maxim- Ubi jus ibi remedium i. e. thither is no wrong without a remedy. different elements of tort In re probable cases, the following whitethorn form break open 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 financial obligation in tort. 2. Mental elements Plaintiff may be indispensable to show some fracture on the part of the suspect. Fault here direction failure to live up to some ideal bar of conduct set by law. To determine blame, the following may be excavated- a) Malice In the popular sense, malice factor ill-will or spite.In Law, it means i) endal doing of a wrongful act and, ii) unbecoming motive. b) Intention i. e. where a psyche does a wrongful act learned the possible consequences likely to arise, he is said to have intended that act, and is hence at breakage. c) Recklessness i. e. where a soul does an act without caring what its consequences readiness be, he is at fault. d) Negligence i. e. where the circumstances are such that a mortal 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 subroutine of doing an act and differs from intention. 3. Malfeasance, misfeasance and non-feasance Malfeasance? nominates 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 unseemly performance of some lawfu l act, for example, where thither is inadvertence. ?Non-feasance? refers to the omission to perform some act where in that respect is an obligation to perform it. Non-feasance of a gratuitous officiateing class does not impose liability, but misfeasance does. Distinctions between Contract and Tort.1. In a bowdlerize the parties fix the duties themselves whereas in tort, the law fixes the duties. 2. A lead stipulates that whole the parties to the contract give the sack 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 soulfulness(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 wound fellowship to defend compe nsation whereas in disgust, proceedings are conducted by the state. 2. The aim of litigation in torts is to compensate the injured companionship while in plague the offender is punished by the state in the pastime of the society. 3. A tort is an infringement of the civil rights belonging to individuals while a shame is a appal of public rights and duties, which affect the whole community. 4. Parties involved in criminal cases are the Prosecution verses the Accused soul while in Torts, the parties are the Plaintiff versus the Defendant.GENERAL DEFENSES IN TORT Generally, a complainant has to prove his case in a court of law and if he does so success adepty, design is passed against the suspect. The suspect on the other hand may defend the case against himself successfully, thus making the complainants action fail. There are some widely distributed abnegations which may be taken to tortuous liability. 1. Volenti Non fit Injuria The general rule is that a somebody cannot c omplain for harm through 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 defence rack, he is in imprint dictum 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 bust of statutory duty.-Thirdly, the maxim does not apply in rescue cases such as where the plaintiff has, under an exigency caused by the defendants wrongful misconduct, consciously and deliberately faced a risk, even of death to rescue another from imminent danger of individualal injury or death, whether the soulfulness endangered is one to whom he owes a duty of protective c everyplaceing 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 take a shit the abnegation under the maxims the very act which the defendant was under a duty to prevent. 2. Inevitable Accident. This means an solidus, which cannot be prevented by the exercise of general contend, 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 stroking is not actionable in tort. 3. Vis Major (ACT OF GOD).This is also an inevitable accident caused by indwelling furiousnesss 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 state is the supreme law. Whether the defense of necessity would extend to inflicting injuries to the person is debatable. 5. Self defending team 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 execute. Everyone whose life is threaten is empower 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 oral provocation can justi fy a blow.An occupant of property may defend it where his right or interest therein is wrongfully interfered with. barely, in protecting ones property, he cannot do an act which is harmful to his neighbour neither can he adopt a operate which may have defect of diverting the mischief from his own demean to the commonwealth 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, infatuated imprisonment and deceit.Thus where a patrol officeholder arrests a person about to commit a crime but the person arrested turns out to be innocent the police force 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 role 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 un necessity 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 cathode-ray oscilloscope 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 fairly 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 lighten pyrotechnic into a crowded ma rket 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 plaintiffs 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 peasant of tender age. TRESPASS infraction as a wrong has a very wide application. It could mean unlawful presence in anothers closure or write down or premises, offence to the ashes of a person or even mean wrongful fetching 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 aggression of private property, be it ever so minor is a trespass. pry may take any of the following three forms a) irrupt to defeat. b) go against to person, and c) Trespass to goods. TRESPASS TO LAND Trespass to prop up 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 self-denial of the plaintiff, in each case without justification. d) By throwing objects into anothers land.e) By using the right of entrance 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 account 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 ownership 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 take for them impounded as a pledge for the redress of the injury sustained. 4. Damages This means retrieval 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 ov er 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 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 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. Assau lt 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 idolize of immediate danger. Examples Shaking of fist, pointing of a gun menacingly at another, allow go a dog fiercely etc. It is important to annotation 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 incorporeal whether the force is app lied 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 plaintiffs knowledge e. g. by locking him up in his bedroom while he is hypnoid 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 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 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 dividing line 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 pungent entry on his land or to repossess his land or goods, which are wrongfully in the possession of another. e).Parental authority slew such as parents, teachers, etc can inflict reasonable punishment for the subject and make 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 Dest roying 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 persons 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 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 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 la ws 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 re stringented 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 oc cupier owes no common duty of care to trespassers and is not liable for any injury or damage they may suffer while in his premises. indifference Negligence means the breach of a duty caused by the omission to do some social occasion, which a reasonable man would do, or doing of some amour, which a prudential 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 manufacturing business 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 metre 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, t he 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 ism 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 leads in circumstances in which it ought not to have occurred e. g.a car locomotion on a straight road in clear hold and good visibility suddenly swerves off the road and overturns, where a drum 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 endorse 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 inju ry 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 line of descent of things does not happen if those who have the duty use proper care. 3. Damage For the plaintiff to survey 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 article of belief of voluntary assum ption 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 make liable for wrongful acts committed by another person. For example An employer may be held liable for the tort of his employees. Similarly, a chieftain is liable for any tort, which the consideration 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 handmaids service he should also accept liabilities. The master should be held liable as he creates circumstances that give rise to liability.The handmaiden was at mere control and discretion of the master. Since the master engages the retainer, 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 rightfulness 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 b enefit 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 in person 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 wron gdoer. 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 requiremen t 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 partys act.DEFAMATION Defamation means the publication of a false line of reasoning regarding another person without lawful justification, which tends to lower his story 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, its not defa mation. 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. logical argument refers the plaintiff The defamatory statement must refer to the plaintiff.