Law of Tort Meaning
1. A civil wrong other than a claim for breach of contract
and for which a right of civil action for damages may arise
2. An act or omission of the defendant that creates an
infringement of an interest of the plaintiff that the law will
recognise and which involves the plaintiff proving on the
balance of probabilities that their version of the facts is the
more believable.
TORT VS CONTRACT
1. A tort differs from a breach of contract mainly in term
of liability
2. Liability in contract comes into existence by the
agreement of the parties concerned
3. Liability in tort is imposed by the law and not agreed
between the parties
4. Contract is an offer which is accepted with both parties
having capacity to contract with there being no
mistake, misinterpretation or undue influence, the
object being lawful and both parties intending to enter
legal relations
5. Tort arises from an act or omission done intentionally
or negligently and there must be damage
NEGLIGENCE
1. Defined by Winfield and Jolowicz as the breach of a
legal duty to take which results in damage, undesired
by the defendant to the plaintiff
2. Omission to do something which a reasonable person
would do or doing something which a prudent and
reasonable person would not do
3. Failure to exercise reasonable care and skill
4. This modern version of negligence was established in
1932 in the decision of Donoghue V Stevenson which
concerned the liability of a manufacturer of ginger beer
in opaque bottles has now been extended to include
many other things such as defective products,
defective structures, factory accidents, road accidents,
negligent misstatements and personal injuries caused
by third parties.
DUTY OF CARE
1. The defendant owes a legal duty of reasonable care
to the plaintiff
2. It states that every person owes a duty of care to his
neighbour
3. Not every careless act done by a person result in his
being held responsible in law
4. The person will only be liable in negligence if he/she
is under a legal duty to take care
5. There can be no legal liability for professional
negligence unless there has been a breach of duty
of care owed to some persons
6. The duty of care may arise in contract, in tort or
may be owed by the professional to a client or to a
third party.
BREACH OF DUTY
1. The defendant failed to act in a reasonably
prudent manner and breached his or her duty
2. Relates to the standard care of how it is exercised
in certain circumstances
3. The test for deciding how much care is to be
exercised is that of a reasonable man
4. The defendant must not only owe the plaintiff a
duty of care but he/she must be in breach of it
5. In deciding whether there was a breach of duty,
a. a balance must be struck between the
magnitude of the risk
b. the burden to the defendant in doing or
not doing what is alleged he should have
or should not have done
6. Court must consider whether the risk was
sufficiently great to require of the defendant more
than he actually did
7. Three factors the court must consider are
a. The magnitude of the risk
b. The importance of the object to be
attained
c. The practicability of precautions
CONSEQUENTIAL DAMAGES
1. The plaintiff suffered injury or some type of loss
that is compensable by the defendant or court
2. The plaintiff must prove he suffered damages,
which are caused by the defendant’s breach of
duty of care
3. However, the following damage must not be too
remote or else it is not recoverable
DEFAMATION
1. A false statement about a person that is likely to
damage their reputation in the community
2. Publication of a statement which affects a person’s
reputation in that it tends to lower him in the
estimation of right-thinking members of society
generally by making them shun or avoid them
3. A statement which disparages a man’s reputation in
relation to his office, profession, calling, trade or
business may be defamatory
4. Defamatory statement includes:
a. Libel which is defamatory statement in
permanent form
b. Slander which is a defamatory statement in a
temporary form
TRESSPASS TO LAND TRESSPASS TO GOODS
1. Must be a direct and voluntary physical interference to 2. Goods or chattels may be owned or possessed
another person’s lawful possession of land 3. Possible for the owner to be in possession of the goods
2. Motive is irrelevant
3. Covers: and/or for ownership to be in one person and
possession in another
a. Intentional or negligent entry upon land
without permission 4. Important to ascertain whether the person in
b. Remaining after permission to stay has possession is in fact the owner for the purpose of
expired and using a right of entry for a
passing title
purpose other than for which it was granted
c. Leaving things on land without permission 5. Ownership of goods arises through title while
4. Only a person in exclusive possession of land or possession is a state of fact and not necessarily a right
immediately entitled to exclusive possession at the time 6. Three classifications for torts of goods:
of the interference, can maintain an action for trespass a. Trespass based on a wrong
5. The act of the defendant must cause a direct invasion of
the plaintiff’s land
b. Conversion based on a right to
6. Includes things attached to the land and capable possession
of being separately possessed such as: c. Detinue based on possession in the
a. Buildings defendant
b. Air space above the land to a reasonable
height
c. Area beneath the surface

TRESPASS
1. ASSAULT
a. Assault is an attempt of threat to apply
force to another whereby he is
reasonably put in fear of violence
2. BATTERY
a. Battery is intentional application of force
to another person
3. FALSE IMPRISONMENT
a. False imprisonment is complete
restraint on a person’s freedom of
movement for any length of time
without lawful excuse
4. NERVOUS SHOCK
a. Nervous shock occurs where a person
wilfully does an act that is intended to
cause physical injury to another and that
does in fact cause a reasonably
foreseeable physical harm to them
TRESPASS TO GOODS BASED ON A WRONG
1. Occurs where there is a direct and intentional or
negligent act of interference with chattels in the
plaintiffs actual possession without lawful justification
2. The plaintiff must be in actual or constructive
possession of the chattels at the time of the
defendant’s act
3. Not necessary for the plaintiff to establish ownership
4. Trespass to goods is established in the same way as
trespass to land
5. May occur without the goods even being taken away
CONVERSION
1. Occurs when a person deals with another’s goods in a
manner that is inconsistent with the plaintiff’s right to
immediate possessions
2. May describe as a wrong committed by a dealing with
the goods or a person which constitutes an
unjustifiable denial of his rights in them of the
ascertain of rights inconsistent therewith
3. Committed by wrongfully
a. Taking possessions of goods
b. Disposing of them
c. Destroying them
d. Refusing to give them up when asked to
ELEMENTS OF CONVERSION
1. Conduct of the defendant which amounts to a denial of
the plaintiff’s rights or which amounts to an assertion
of inconsistent rights
2. Plaintiff must be entitled to property or possession in
the chattel and there must be on the part of the
defendant
a. An intentional act of dealing with the chattels
on the part of the defendant
b. A physical dealing with the goods
c. There must be both of the sale and the
delivery
REMEDY OF CONVERSION
1. Damages
2. Amount is assessed on the value of the goods and upon
payment, ownership of the goods passes to the
defendant
DETINUE
1. Based on a demand by the plaintiff for the immediate
return of goods and a subsequent refusal by the
defendant
2. Wider than conversion
3. Lies against a person who no longer has possession at
the time of the demand
4. To success in a claim in detinue, the plaintiff has to
prove on
a. He is entitled to immediate possession of the
goods
b. A specific demand was made for their return,
nominating a place for their return
c. The defendant unreasonably refused to
return them after the plaintiff demanded
their return at a specific time and place
5. Where the defendants is in possession of the plaintiff’s
goods at the time of the plaintiff’s demand, the
defendant commits both conversion and detinue,
because at this point of time the two torts are identical
6. It is where the defendant is no longer in possession
that there is a difference between the two actions
7. Where the defendant is still in possession of the goods,
the plaintiff can seek return of the goods or damages
for their detention, or be awarded the value of the
goods and damages for their detention
TORT OF NUISANCE
1. Concerned with land
2. Either public or private
3. Consists of an unreasonable interference with the use
and enjoyment of land and is concerned with indirect
harm
4. If an interference created by a defendant constitutes a
nuisance, the defendant will be liable for the nuisance,
whether of not they failed to take reasonable care.
PUBLIC NUISANCE
1. Origin of public nuisance is criminal law
2. An unlawful act or a failure to discharge a legal duty
generally related to land which interferes with the
enjoyment of a right available to the general public and
may result in the offender being prosecuted
3. Numerous statutes that confer wide powers on local
authorities and other government bodies for the
control and abatement of public nuisance
4. In exceptional circumstances where a plaintiff has
suffered financial damage or loss, the may bring a civil
action against the offender
5. Unreasonable interference with the exercise of public
rights
PRIVATE NUISANCE
1. Distinguished from a public nuisance
a. It is not a crime
b. It can be committed against an individual or a
class of the population
2. Unlawful interference with another person’s use of
enjoyment of his land or interest in land
3. Takes the form of emitting noise, smoke, smell
4. An indirect form of interference

VICARIOUS LIABILITIES STRICT LIABILITY

1. It is possible at law for a person to be held responsible 1. Tort which results from a breach of an absolute duty
for the acts or omissions of another, even though they 2. Liability is strict.
may not have been personally at fault
2. This is known as vicarious liability which is always strict
liability.
3. Distinguished from personal liability as the latter
generally requires fault on the part of the defendant
4. Arises where a particular relationship exists between
the parties
a. Employer-employee relationship
b. Principal-agent relationship
c.