The word tort is derived from the Latin term ‘tortum’ to twist, and implies con¬duct which is not justified by the law of the land. It has been defined as a ‘ civil wrong, other than a breach of contract for which the remedy is common law action for unliquidated damages. Unliquidated damages are those which the court has power to fix, as distinct from liquidated damages, which is a fixed amount claimed by the plaintiff.
It should be emphasised however that certain actions, e.g. assault and battery constitute a crime as well as a tort and may give rise to criminal or civil proceed¬ings. A better definition therefore is that formulated by the late Professor Winfield.
‘ The ‘ Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressi¬ble by an action for unliquidated damages.’
Malice. Generally speaking, the presence of malice is irrelevant in tort(Bradford Corporation v Pickles 1895) but
- A plaintiff must prove malice to succeed in malicious prosecution and malicious falsehood.
- If a plaintiff can prove malice in the tort of defamation this will des-troy a defence of qualified privilege or fair comment.
- In the tort of nuisance there are certain situations where the plaintiffwill succeed if he can show the defendant acted maliciously(Hollywood Silver Fox Farm Ltd v Emmett 1936)
Damunm Sine Injuria
Damnum sine injuria signifies damage suffered but without any right of action. There are many instances where harm can be inflicted upon another without there being an actionable tort. Trade competition is a good example.ln the Gloucester Grammer School case it was held that no action would lie at the suit of a schoolmaster who complained that another had opened a rival school and was taking pupils at smaller fees. Even if the motive is a bad one, this will not render a case of damnum injuria actionable.
Injuria Sine Damnum.
Injuria sine damnum means tort without the necessity of proving damage. Many torts are actionable per se, e.g. trespass, libel, false imprisonment, etc. Other torts require proof of actual damage, e.g. negligence, conspiracy, malicious prosecution, etc. Thus if a legal right is violated an action will lie as in cases of trespass although the plaintiff has not suffered any loss.
In Ashby v White 1703 , the plaintiff was wrongfully refused to register his vote. In spite of this, the candidate for whom the vote was intended was elected, and so no loss was suffered by the rejection of the vote. It was held that the defendant was liable because he deprived the palintiff of his legal right of registering his vote.
There are certain justifications which when present will prevent an action from being actionable in courts. These are:
Volenti non fit injuria. A person cannot complain of damage resulting from a risk he consented to run (e.g. a batsman who is struck by a rising ball) but it must be real consent. In Smith v Baker it was held that the mere fact that a workman knows that he is working in a dangerous place, over which a crane is periodically swinging heavy loads, is not of itself proof that he consented to run the risk of injury.
Inevitable accident. This is an accident which could not be avoided by any precaution which a reasonable man could be expected to take. In Stanley v Powell, 1891 both parties were members of a shooting-party. A pellet from the defendant’s gun glanced off a tree at a considerable angle and wounded the plaintiff. The defendant was held not liable.
Act of God. This is damage which occurs as a result of natural causes (e.g. floods, earthquakes, lightning) which is beyond human foresight and which cannot be, prevented. The damage so caused is regarded as too remote to form the basis of a legal action. In Nichols v Marsdan,1876,M owned certain artificial lakes. An unprecedented rain caused the banks of the lakes to burst, and the escaping water carried away four bridges belonging to the plaintiff. It was held that M was not liable for an extraordinary act of nature which could not reasonably have been anticipated.
Statutory authority. Where the power to do an act is provided by statute, statutory authority may be a good defence to an action in tort which arises out of the proper excercise of that power by the public body concerned. Statutory authority may be :
- Absolute. Power to do a thing includes an indemnity for all the natural consequences.
- Conditional, i.e. power to act provided no nuisance, etc, results. In Metropolitan Asylum District V Hill the appellants had statutory authority to erect a small-pox hospital but were restrained from doing so in a place where it would have been dangerous to local inhabitants.
Self defence. If a person commits a tort in defence of his property, he will not be liable provided the act done in such defence is reasonable in all circumstances. The right of self defence is also available to a person to defend himself or members of his family against an unlawful harm.
Necessity. This defence is available where intentional damage is done in order to prevent a greater evil. Such damage can be justified if the act was reasonable. For example, where a whole area is threatened by fire, the destruction of property not yet burnt in order to prevent the fire from spreading would be damage intentionally done, but in the circumstances, it would be reasoanable.
Mistake. Usually is not a defence to say that the wrongful act was done by mistake. People are presumed to intend the probable consequences pf their acts even if they do not fully realise what may result. Mistake could be a defence if it is reasonable in the particular circumstances, e.g. where there has been a wrong¬ful arrest as a result of reasonable suspicion.
Vicarious liability is the liability of one person for the torts committed by another person. The person who actually committed the tort is always liable, but some¬times another person may be liable for that same tort as well although he did not commit it. In such a case both or all of those liable are called joint tortfeasors.
The common example is that of an employer being responsible for the torts of his employees committed in the course of his employment. This master and servant liablity is known as the doctrine of vicarious liablility.
The ‘Course of Employment’.
An act is done in the course of a servant’s employment if it is of a class of act which he is expressly or impliedly authorisedto do. It makes no difference that the method employed was unauthorised or forbidden, or that act was done negligently or for the servant’s own fraudulent purposes. But if the act done was quite outside the servant’s duties, the master is not liable.
An employer is not liable for the wrongful acts of his servant who departs from his duty and goes off on his own private business. For example, if a lorry driver negligently injured a person while making an unauthorised detour from his fixed route, the employer would not be liable for the injury; only the driver could be liable.
A difficult situation arises when one employer lends a servant to another for a particular purpose or period of time. It then appears that two people are res¬ponsible for controlling his actions. However, it must be decided which of the two had the right of control over the servant’s activities at the time when the injury was caused.
The general rule is that a man is liable for the acts of a servant but not for the acts of an ‘independent contractor’. However, the employer would be vicariously liable :
- Where he has not taken care to select a competent contractor.
- Where the contract is to do something unlawful.
- Where he authorises the tort before it is committed or afterwards approves the conduct of the independent contractor in committing the tort.
- Where the liability is absolutely independent of negligence. This is illustraded by the case Rylands v Fletcher. In this case the defendant empl¬oyed independent contractors to construct a reservoir on his land in order to use water power for his mill. Water escaped from the reservoir, seeped through old mine shafts which had been filled with earth and eventually flooded the plaintiff’s mine. It was found as a fact that the defendant had not been negligent, nevertheless, he was held liable in that he had collected water on his land, it had escaped and caused damage.
Rule in Rylands v Fletcher.
The rule is that ‘ the person who for his own purpose brings to his land and collects and keeps there anything likely to to mischief if it escapes, must keep it at his own risk and if he fails to do so he is liable. for all damages naturally arising from the escape’.
A partner is liable jointly and severally for the torts committed by his co-partner(s) in the ordinary course of the firm’s business. Partners are also liable on the principle of agency, for torts committed by a co-partner with their authority.
Trespass to the Person
Trespass to person is the intentional harm done to the person or liberty of another without lawful justification. It may take one of three forms —assault, battery and false imprisonment; and is actionable without proof of damage.
Assault is any unlawful attempt, offer, or threat to do violence to another in such circumstances that the plaintiff reasonably believes he is in danger. On general principles, pointing an unloaded weapon at another who does not know it is unloaded should be an assult.
A battery is the actual carrying out of that threat. The mere fact of touching or pushing another person against his will can amount to a battery and there is no need to show that any injury or damage has resulted. An assault is a crime as well as a tort.
Usually both wrongs are committed in rapid succession , i.e. the threat is carried out by the actual application of unlawful force, but one of these wrongs can be committed without the other. There will be an assault without a battery if the threat to inflict unlawful force is not in fact carried out; alternatively a battery may be perpetrated on a person who does not expect it and so cannot complain of as where he is stuck from behind without warning.
False imprisonment is the infliction of unauthorised bodily restraint without lawful justification. This need not necessarily mean locking a person up in a room as any form of unlawful restraint could amount to false imprisonment. The imprisonment must be total, i.e. a person’s liberty must be restricted in all directions. If one exit from a place is barred to a person but he is free to go out by another way, there is no false imprisonment.
But he need not know of his imprisonment at the time in order to succeed in a subsequent action in tort. For example, if he was asleep or drunk or unconscious when he was locked in a room.
Trespass to land is unjustified interference with the possession of land of an¬other independent of any intention to trespass. A tenant can sue if he is in occupation, although he is not the owner.
Entry upon land is perhaps the most obvious instance, but others are : throwing objects on to the land, driving nails into a wall, remaining after the determination of a licence to enter, and using a right of entry for a purpose other than for what it was granted.
Trespass by cattle. A trespass by the cattle of a person is treated as if he has committed it himself. Cattle includes horses, asses, mules, sheep, goats, swine and poultry.
Trespass to goods. An action for trespass to goods lies where there is wrongful interference with another person’s goods which are in his possession. The interference includes actual taking of or a direct and immediate injury to the goods.
Conversion. The most common action in tort concerning movable property is that called conversion. This involves retaining another person’s property and also denying his right to possession of it. The tort of detinue also consists of the wrongful retention of another’s goods but there is no denial of his right to possess it. For example, where the defendant says to the plaintiff, ‘ I cannot return your book to you because someone has borrowed it from me’. He is liable in detinue,to compensate the plaintiff for parting with it.
Distinction between Trespass and conversion
- Trespass is a wrong to the actual possessor and cannot be committed by a person in possession. Conversion is a wrong to the person entitled to immediate possession.
- Trespass consists in damaging or interfering with the goods of another without intending to exercise adverse possession over it. Coversion is a breach made adversely, in the continuity of the owners dominion over the goods.
Remedies for conversion
- Reception. A person entitled to possession of goods of which he has been wrongfully deprived may retake them whereever he finds them, provided he uses no more than reasonable force.
- Order for specific restitution. The court may, in their discretion, order specific restitution of chattles (ie. goods), if the recovery of damages is an inadequate remedy; damages for temporary dispossession may be gra-nted , in addition.
- Action for damages. The plaintiff is entitled to the full value of the chattel and to damages (less an allowance if the chattel has been retur¬ned to him).
Nusisance has been defined by Professor Winfield as an unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connection with it’. Nuisances are of two kinds: Public nuisance, and Private nuisance, although it is possible for the same act to be both.
Private nuisance is the interference by the owner or occupier of land with the use or enjoyment of another land which causes damage. Private nuisance is not actionable without proof of damage. Two types of damages that are remediable are damages to the plaintiff’s land or premises and interference with the enjoyment of property. But it is doubtful whether a plaintiff can recover in private nuisance for personal injuries.
Public nuisance is essentially a criminal offence rather than a tort. It consists of any act or omission which materially affects the reasonable comfort or convenience of life of a class of people. Examples of the type of act which would constitute a public nuisance at common law are: quarrying causing dust and vibrations; (ii) obstructing free passage of the highway or keeping a disorderly house.
A public nuisance, such as obstructing the highway, is a criminal offence, but an individual who suffers special damage, i.e. damage beyond that suffered by other members of the public, may bring a civil action. In Campbell v Corporation of Paddington, 1911, defendants wrongfully erected a stand in the highway which prevented the plaintiff from letting her premises for the purpose of viewing King Edward V11’s funeral possession. Held, she could recover damages.
Remedies for Nuisance.
- Abatement. An occupier may without notice remove things which have escaped on to his own land (e.g. branches). In an emergency (e.g. a fire likely to spread) he may enter another’s land to stop it; otherwise, he should first give notice and a reasonable time to permit the other occupier to abate it himself .
- An action for damages.
- Injunction. An injunction may be granted against the commission or continution of an alleged act of nuisance. The remedy of injuction may be granted in addition to damages or in lieu of damages.
Defences: (i) consent, (ii) Prescriptive right, and (iii) statutory authority.
Distinction between Trespass and Nuisance Trespass Nuisance
|Action per se||Damage must be proved|
|Direct physical interference to land(e.g placing rubbish on a neighbour’s land )||Need to be direct (e.g allowing bricks from a ruin to fall on neighbour’s land)|
|Wrongful entry of an object or person on another’s land.||No entry necessary, can be created on defendant’s own land|
|May consist of one act only||Usually more than one act is necessary|
Negligence may either be a way in which some other tort is committed or it may be an independent tort. It is with the latter that we are dealing here. In order to succed in such an action the plaintiff must prove :
- That the defendant owed a duty of care towards him;
- That there has been a breach of that duty; and
- That as a result the plaintiff has suffered damage.
For instance, drivers owe a duty of care to all other road users(motorists, cyc¬lists and pedestrians) to drive carefully. If they injure people or damage property as a result of their careless or dangerous driving, they are guilty of negligence and can be sued.
The Duty of Care.
A man is not liable to everybody who is damaged as a result of his carelessness. There must be a duty of care. In Bourhill v Young, motor cyclist owed no duty to a fishwife who saw his body after the accident and suffered miscarriage. Similarly, in King v Phillips 1953, mother not owed a duty of care when after hearing her child scream and seeing the child’s tricycle under a taxi, she suffered shock. In fact the child was not hurt.
One method of deciding whether such a duty exists is given in Lord Atkin’s judgement in Donoghue v Stevenson ‘ You must take reasonable care to avoid acts or omissions which you reasonably foresee would be likely to injure your neighbour. Who then is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question’.
The doctrine of Res Ipsa Loquitur.
The facts speak for themselves (Byrne v Boadle 1863). The general rule of law is that the plaintiff must prove that the defendant has been negligent. In cases, however, where the act or omission obvi¬ously indicates negligence, the burden of proof moves to the defendant who must show that in fact he was not negligent. The rule has been applied where:
- Bags of flour fell on the plaintiff from the upper floor of a warehouse.
- Swabs were left in a patient after an operation.
The Law Reform Act (Cap. 26) provides that where a person suffers damage which is partly his own fault and partly the fault of another the injured party will be able to claim damages. But the amount recover-able shall be reduced to the extent that the court considers just and equitable having regard to the claimant’s responsiblity for the damage.
Defamation is the publication of a false statement about a person to his discredit which exposes him to hatred, ridicule or contempt, or causes him to be shunned or avoided by right thinking members of society generally. A defamatory state-ment is a libel if made in a permanent form, e.g. in writing, printing, a picture, and it is slander if it is merely spoken or a jesture.
A defamatory sound film is libel. Defamation Act also treats broadcasting and television as mediums for libel.
Libel may be a crime as well as a tort.
Libel is actionable without the plaintiff having to prove special damage.
Slander is not actionable unless the plaintiff could prove that he has suffered some special damage. However, slander also is actionable withour proof of spec¬ial damage in the following cases:
- An imputation that the plaintiff has been guilty of a criminal offence punishable by imprisonment.
- An imputation of unchastity to any woman or girl.
- An imputation that the plaintiff is suffering from a contagious disease such as VD or leprosy.
- Words calculated to disparage the plaintiff in any office, profession or calling by imputing dishonesty, unfitness or incompetence.
Ingredients of Defamation.
There must be a proof that the statement was false, that it was defamatory, that it clearly referred to the plaintiff(even if he was not named) and that it was published to a third person. The essence of the tort is that the plaintiff has suffered damage through loss of reputation. There can be no loss of reputation where only the plaintiff knows of the defamatory statement.
- Justification. If statement is true no damage is done, and no damages will be awarded.
- Fair comment on a matter of public interest.
- Absolute Privilege extended to:
(a) Parliamentary proceedings.
(b) Judicial proceedings.
(c) Statements between lawyer and his client.
(d) State communications.
(e) Statement between husband and wife.
4 Qualified Privilege extended to:
(a)Reports on parliamentary and judicial proceedings.
(b) Statement made in performance of a duty (references).
(c)Statement made to protect an interest.
5 Offer of Amends. Publication of apology and deposit a sum of money into the court.
6 Consent of the plaintiff to publication.
The Law governing limitations is found in Limitation Act. Under the Act actions in tort must generally be instituted within six years from the date on which the cause of action arose, after which the plaintiff loses his right of action. In cases where damages for personal injuries are involved the limitation period is reduced to three years.