Law of Tort
Introduction
A tort may be defined broadly as a civil wrong involving a breach of duty fixed by the
law, such duty being owned to persons generally and its breach being redressable primarily by
an action for damages.
The essential aim of the law of torts is to compensate persons harmed by wrongful
conduct of others, and the substantive law of torts contains those principles which have been
developed to determine when the law will and when it will not grant redress for damages
suffered. Such damage may take several of any different forms, such as physical injury to
persons; physical damage to property; injury to reputation; and damage to economic interest.
Monetary damages is the usual remedy for a tort. The other important remedy is the
injunction, which is a court order forbidding the defendant from doing or continuing to do a
wrongful act. Whether the claimant is claiming damages or an injunction, he must first prove
that the claimant has committed a recognized tort, for the law of tort does not cover every type
of harm caused by one person to another.
Distinguishing Tort from other legal concepts
Tort and Crime
The main purpose of the criminal law is to protect the interest of the public at large by
punishing those guilty of crimes- generally by means of imprisonment or fines, and it is those
types of conduct which are most detrimental to society and to the public welfare that are
treated as criminal. A conviction for a crime is obtained by means of a criminal prosecution,
which is usually instituted by the State through the agency of the police or at the discretion of
the Director of Public Prosecutions.
A tort, on the other hand, is a purely civil wrong, which gives rise to civil proceedings,
the purpose of such proceedings being primarily not to punish the wrongdoer for the
protection of the public at large, but to give the individual complainant compensation for the
damage which he has suffered as a result of the defendant’s wrongful conduct.
There is another school of thought on the purpose of tort law, which points to what may
be called the ‘deterrent’ aspect of tort law. The essence of this view is that the possibility of
liability in tort may have the effect of inducing persons to modify their behaviour so as to avoid
harming others.
Tort and Contract
Tort and contract are both areas of civil law and there is a closer relationship between
them than there is for between tort and crime. However, the traditional distinction made
between tort and contract is that in tort the duties of the parties are primarily fixed by law,
whereas in contract they are fixed by the parties themselves. In other words, contractual duties
arise from the agreement between the parties, whilst tortious duties are created by the
operation of law independently of the consent of the parties.
Important concept in Tort Law
DaMum Sine Injuria
This literally means ‘damage without legal injury’. It is a basic principle that damage is
not actionable in tort unless such damage amounts to legal injury. Thus if the defendants act is
in itself lawful, he cannot be sued in tort, however much damage the claimant may have
suffered as a result of it.
It is for the courts themselves to decide what is not legal injury. Social and commercial
life would become intolerable if every kind of harm were treated as a legally redressable injury;
for example, business competition which drives a trader out of business is not actionable in
tort, some cases the harm complained of may be too trivial (de minimis non curatlex) or too
indefinite or incapable of proof.
Vs.
Injuria Sine Damno
This literally means ‘legal injury without damage’. Normally, in order to succeed in tort, the
claimant must show that he has suffered actual damage (for example, injury to his person or
property or reputation) as well as legal injury. There are some torts, however, where actual
damage need not be proved and it is sufficient to show an infringement of the claimant’s legal
rights (that, is legal injury).Torts which are actionable without proof of damage are known as
‘torts actionable per se’. Example would include trespass, which is actionable although no harm
is caused to the actual land.
The Forms of action
Torts were developed in England from about the thirteenth century onwards in the King’s
Common law courts, in which every action had to be commenced by the issue of a royal writ.
Each writ was in a set form, known as a ‘form of action’. There was a limited number of
recognized form of action, and each claimant had a difficult task of fitting his claim into an
existing form; if the claim did not fit, he had no remedy.
Reference
Kodilinye, G. (2015). Commonwealth Caribbean Tort Law (5thed.). Third Avenue, New York:
Routledge.