henry.aongola@yahoo.com “The Province of tort is to allocate responsibility for injurious conduct”………..as elucidated by one of the eminent scholars in the legal fraternity….Lord Justice Denning
Therefore, the commonly acceptable definition is
that a tort is a “civil wrong” A tort is committed against an individual (which includes artificial persons) as opposed to the State;
All persons have protected rights at law;
Abuse or violation of such rights may occasion the
claim of damages, injunctions etc…. The Standard Tort consists of the following element: Act or omission by the Defendant;
Damage occasioned to a claimant as a
consequence of the act or omission ; and This can be represented by the widely accepted model: ACT (or omission) + CAUSATION +PROTECTED INTEREST + DAMAGE = LIABILITY Having looked at the meaning of Tort and the main components that constitute a tort; let us examine the functions of the law of tort.
The main purpose of tort law is to compensate the
victims of wrongdoing for the injuries they suffer as a result.
Tort law is generally not concerned with
punishing, or casting moral judgment on, the wrongdoer - it simply compels the person who caused the harm to compensate the person who suffered the harm. The law of torts has primarily four functions –
1). It provides remedies for wrongs;
2). It provides compensation and vindication (i.e
proof, evidence, justification);
3). It acts as a deterrent and provides protection; and
4). Tort law is concerned with corrective justice and
distributive justice. In the light of the foregoing, it then follows that tortious liability may be described as:
the duty of care, and negligence of that duty, with
respect to persons with whom there is no contractual liability. “For example, if a person fails to maintain his property and part of his property falls off and injures another person, the property owner is liable for the damages to that person, even though it may be a passerby with whom there are no contractual obligations”. In simple terms therefore, tortious liability can be summarized as follows: “A body of rights, obligations, and remedies -that is applied by courts in civil proceedings- to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor” The main characteristics distinguishing torts from other branches of the law are as follows: Under Criminal Law-
the typical remedy for such injurious conduct is an
action for unliquidated damages, compensation for damage suffered whereas in criminal law, the intention is to punish the accused; and In the injurious conduct is regarded from the point of view of the person injured, not that of society generally. It is thus civil not criminal liability! Under Contract Law-
The responsibility for the injurious conduct does
not arise out of agreement between the parties as in breach of contract. PLEASE NOTE however, that the same circumstances may give rise to liability both in tort and contract, e.g., the negligence of a doctor: or to both civil and criminal liability, e.g., assault: or to all three, e.g., dangerous driving by a cab driver………... What is fault based tort?
This question is largely concerned with the mental
element of tort. “It may not be sufficient for the claimant to demonstrate that the defendant’s act or omission caused them damage in order to succeed in an action……it may also be necessary for the claimant to show a particular state of mind on the part of the defendant. Where such a state of mind needs to be proved, it is said to be a fault-based tort……..where no such state of mind needs to be proved it is said to be a strict liability tort……” Such propositions have a historical background as concepts like insurance were limited hence the need to ascertain the state of mind/ or proof of fault in order to succeed in an action..
With time, fault based tort has shifted from being a
state of mind to being a judicially set standard of conduct which is objectively set for policy reasons. What is malice?
• In tort, there are two conventionally acceptable
definitions which are as follows: a) The intentional doing of some wrongful act without proper excuse; and b) To act with some collateral or improper motive • With respect to (b) there is a basic principle that malice is irrelevant in tort law. If one has a right to do something then his motive in doing it is irrelevant. Consider the most celebrated case of BRADFORD CORPORATION V. PICKLES [1895] AC 587.
In brief the case relates to a defendant who sank a
shaft in his land, thereby spoiling the supply of underground water. The court held that the fact that the defendant had a bad motive did not make an otherwise lawful action unlawful. There are two exceptions to this basic principle:
Where malice is a significant ingredient of the tort for
example: (a) malicious prosecution; and (b) Nuisance
The case of CHRISTIE V. DAVEY [1893]1 CH316
“the Plaintiff and defendant lived in adjourning houses. The plaintiff gave music lessons and this annoyed the defendant . In retaliation the defendant banged on the wall and shouted while the lessons were in progress. The plaintiff was held to be entitled to an injunction because of the defendant’s malicious behavior” The law of tort is primarily concerned with the effect of injurious conduct than with the motive which inspired it. So bad intention will not necessarily make the infliction of damage actionable. 1. Trespass to persons; 2. Trespass to property; 3. Negligence; 4. Defamation; 5. Nuisance; 6. Strict liability*; and 7. Liability of occupiers and employers* 1. PROOF OF DAMAGE The claimant must prove he has suffered some form of damage in order to establish liability. Further, the claimant has to prove that such damage infringed on his legal rights (sata v. zambia bottlers ltd, 2003 SCZ Judgment 1) 2. CAUSATION Tortious liability is dependent on making a connection between the defendants wrongful act and the damage suffered by the claimant. This is established by applying the “BUT FOR” test that but for the defendant having breached the duty of care, the claimant would not have suffered the injury. Read: McGhee v National Coal Board (1972) Barnett v. Chelsea & Kensington Hosp Mgt Committee (1969) 3. THE DAMAGE WAS FORCEABLE Loss due to the defendants breach of duty will be claimed if the damage was foreseeable. However, the claimant must prove that a tort of negligence occurred and caused the loss due to the defendants breach of duty Read: Overseas Tankship v. Morts Dock & Engineering & the Wagon Mound (1961) in order to establish the tort of negligence, the claimant must prove the following That the defendant owed him a duty of care That the defendant breached that duty of care; and That damage caused by the breached was forceable The duty of care will be owed if three conditions are satisfied- Must be foreseeable that harm would be caused to the Claimant There must be a proximity of relationship between the claimant and the defendant; and It must be just and reasonable for the court to impose a duty of care Read: Donoghue v. Stevenson (1932) Caparo Industries Plc v. Dickman (1990) the duty of care will be breached if the defendant does not take reasonable care in all circumstance. A higher standard of care is expected from professionals and people who claim to have some special competence. The thing speaks for itself; Negligence is a civil wrong and the claimant must prove the case on a balance of probabilities. However, by claiming that the thing speaks for itself, the claimant can reverse the burden of proof and put the defendant to prove that the damage was not caused by his failure to take reasonable care. Cassidy v. Ministry of Health (1951) 1. consent; Volenti non fit injuria (no harm done is done to one who is willing) 2. Contributory Negligence 3. Statutory or Common Law justification 4. Necessity 5. Illegality BASIS FOR VICARIOUS LIABILITY Vicarious liability is derived from the master-servant relationship and is based on the breach of the employees duty to third parties The employees wrong must fall within the course of employment and fufill the following requirements; It must be a tort It must be committed by the employee The employee must be acting in the course of employment -Young v. Edward box & Company ltd (1951) Carelessness is the most frequent kind of wrong committed by an employee. Whether there is an intention or just negligence is immaterial and the employer may well be responsible for the conduct of the employee. The tort of negligence may still be in the course of employment even if the servant is not acting strictly in the performance of his duty, as long as he is not “on a frolic of his own”. READ Joel v Morison (1834) Nottingham v. Aldridge (1971) An act done may still be in the course of employment even if it was expressly forbidden by the employer READ; Stone v Taffe (1974) Limpus v. London General Omnibus (1862) 1.DAMAGES payment of money to the injured party which is compensatory and aims to put that party in the position he would have been had a wrong not been done against him. 2. INJUNCTION is a discretionary order of the Court requiring the person to cease committing a tort. In the event that damage is wrongfully inflicted by two or more persons either jointly (e.g. master and servant, joint occupiers, persons having a common design) or severally but concurrently (e.g. two negligent drivers causing an accident to a third party) the following principles apply:
I. One tortfeasor has a right of contribution from any
other tortfeasor who is or would if sued have been, liable in respect of the same damage; II The Court awards whatever contribution is just and equitable, having regard to the extent of the joint tortfeasor’s responsibility for the damage; this in the court’s discretion amount to complete indemnity. Read the case of : LISTER V. ROMFORD ICE AND COLD STORAGE CO. [1957] A.C.555 H.L