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Introduction and General Principles of
Tort Law
1.1 Introduction: What is a tort?
The term 'tort' originates from the Latin word 'tortus', which translates to
'twisted'. This evolved to signify 'incorrect' in French, as evidenced by the
phrase 'J’ai tort', equivalent to the English 'I am mistaken'. In English
jurisprudence, however, 'tort' distinctly denotes a legal infringement for
which there exists a redress within the legal system. To this end, a tort is
a civil wrong in the sense that it is committed against an individual (which
includes legal entities such as companies) rather than the state. The gist of
tort law is that a person has certain interests which are protected by law.
These interests can be protected by a court awarding a sum of money,
known as damages, for infringement of a protected interest. Alternatively,
by the issuing of an injunction, which is a court order, to the defendant to
refrain from doing something. There are increasingly limited circumstances
where the victim of a tort may avail himself of self-help.
The primary function of the Law of Torts is to provide remedies to claimants
who have suffered harm, loss, or an infringement of rights. The harm
includes physical injury to persons or property, damage to persons’
reputations or financial interests, and interference with persons’ use and
enjoyment of their land. However, just suffering such a loss does not
necessarily mean the law will provide a remedy; a claimant must show that
the person committing the tort owed them a duty of care and that the tort
caused the loss.
1.2 Elements of a tort
The Law of Torts covers a range of different civil wrongs including
negligence, trespass, nuisance, and defamation. Each tort has its own rules
about liability but most torts require an element of culpability, which means
that liability is only imposed on a person who intentionally or negligently
acts or fails to act in a particular manner.
The paradigm tort consists of an act or omission by the defendant which
causes damage to the claimant. The damage must be caused by the fault
of the defendant and must be a kind of harm recognised as attracting legal
liability. This model can be represented as:
act (or omission) + causation + fault + protected interest + damage
= liability.
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Thus, usually, to succeed in a tortious claim, a claimant must prove that
the tortious act or omission caused some damage (although there are a few
torts such as trespass where the claimant does not have to prove he
suffered actual damage). There are various defences to an action in tort.
Some are called general defences because they apply throughout the Law
of Torts, and other defences are called specific defences because they only
apply to a particular tort.
1.3 Variations
1.3.1
Strict Liability Torts
In certain cases, individuals or entities can be held accountable for harm
even if they haven't acted negligently or intentionally. Such torts are
referred to as strict liability torts. Here, the very act of causing harm,
regardless of intent or precaution, results in liability.
1.3.2
Vicarious Liability
Another form of liability arises when one person is held accountable for the
wrongful actions of another. This is termed ‘vicarious liability’. For instance,
in the business context, an employer can be held liable for the wrongful
actions of its employees while they're performing their job duties. This
ensures that those who are in a position to reduce such harms (like
employers who can train and supervise their staff) have a strong incentive
to prevent wrongful actions.
Additionally, in the realm of tort law, there are situations where the
connection between the wrongful act and the resulting harm is not
straightforward. Two primary concepts touch upon these scenarios:
1.3.3
Damnum Sine Injuria (Harm without Legal
Injury)
This refers to situations where the defendant’s actions have indeed caused
some sort of damage or loss to the claimant, but the type of interest
harmed is not recognized or protected by the law. For instance, one might
suffer financial loss due to a competitor's business tactics, but if those
tactics are legal, then there’s no action to be taken, even though harm was
sustained.
1.3.4
Injuria Sine Damno (Legal Wrong without
Damage)
Conversely, this pertains to situations where the defendant's conduct is
legally wrong, and yet, it doesn't lead to any actual damage or loss to the
claimant. For instance, a trespass onto someone's property without causing
any harm or damage can still be actionable because trespass is a violation
of one's rights, even if no tangible harm resulted. When a tort does not
require proof of actual damage to be actionable, it's described as
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“actionable per se”. This means the mere occurrence of the wrongful act is
enough to support a claim, without the need to demonstrate actual harm.
1.4 Motive and Malice in Tort
1.4.1
Motive's General Insignificance
Motive encompasses an individual's rationale behind a particular action. In
the realm of tort law, motive usually doesn't play a pivotal role, albeit with
exceptions. A defendant's noble intentions cannot shield him from
accountability if all tort elements are met. Conversely, if an action is legal
regardless of its motive, a malicious intention won't render it actionable.
This principle was underscored in the case of Bradford Corp v Pickles [1895]
AC 587, where the defendant's ill-willed intent didn’t result in liability due
to the legality of his actions. In this case, Pickles was annoyed at the refusal
of the claimant corporation to purchase his land in connection with a
scheme to supply water to the inhabitants of a town. In revenge, he sank
a shaft on his land. The water which percolated through his land in unknown
and undefined channels from the land of the corporation on a higher level
was consequently discoloured and diminished when it passed again to the
lower land of the corporation. For this injury Pickles was held not liable.
Lord Macnaghten highlighted at p 601:
Not the motive for the act, that must be regarded. If the act, apart
from motive, gives rise merely to damage without legal injury, the
motive, however reprehensible it may be, will not supply that
element.
This sentiment was reiterated in Allen v Flood [1898] AC 1, and, to this day,
remains a dominant perspective. However, in some rare instances, a
defendant's malicious intent might be the determinative factor in
establishing liability.
1.4.2
Mixed Motive
Often, individuals might have multiple reasons for an action, leading to
mixed motives. In such situations, where motive occasionally matters, the
law tends to focus on the primary or dominant intent as the definitive
motive.
1.4.3
Malice – A Multifaceted Concept:
In tort law, ‘malice’ adopts varied interpretations. It might imply an evil
intent or vindictiveness – an intention to harm. Or, it could simply denote a
wilful action undertaken without valid reasons or justification. The latter
interpretations are more aligned with intent than with motive. 'Intent'
should be understood as awareness of an action and its potential
repercussions, devoid of any implication about the underlying motive. To
discern ‘malice’, one must scrutinise its context in relation to the specific
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tort in question, such as defamation, malicious prosecution, or misconduct
in public office.
1.4.4
Exceptions to the principle of malice’ irrelevance
in Tort:
a) Malice as a fundamental component:
In certain torts, malice becomes an integral element. Take the example of
malicious prosecution. In such cases, the claimant must establish not only
the defendant's lack of reasonable grounds to believe in the claimant's
probable guilt but also that the defendant’s actions stemmed from malicious
intent. This requirement is rooted in the policy preference that leans
towards upholding law enforcement over individual rights. As a
consequence, successful instances of malicious prosecution are relatively
rare.
b) Torts where malice potentially influences liability:
In some torts, malice can potentially sway the liability determination. For
instance, within the framework of nuisance, a malicious intention can
transform a previously reasonable act into an unreasonable one. An
illustrative example is of two neighbours residing in adjacent properties.
The first neighbour provided music lessons, which the second found
bothersome. In response, the second neighbour deliberately disrupted the
lessons by banging on the wall and shouting. Due to this malicious intent,
the claimant (the music teacher) was deemed entitled to an injunction
against the defendant's behaviour (see Christie v Davey [1893] 1 Ch 316).
1.5 Terminology
The wronged party or ‘victim’ of the tort who brings an action is referred to
as the plaintiff, sometimes this party is referred to as the claimant.
The alleged wrongdoer (the party who is said to have committed a tort) is
referred to as the tortfeasor. The tortfeasor is not necessarily a party to
the action. The appropriate term for the person who is on the receiving end
of the claim in tort (who is generally but not always the tortfeasor) is
defendant.
We have just mentioned that the defendant will not always be the tortfeasor
(i.e. the person who actually committed the tort). This is an important
feature of the law of tort. The defendant will not be the tortfeasor where
the action is brought on the basis of vicarious liability for the torts of
employees and agents or against an insurer as third party.
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1.6 The interests protected in tort law.
a) Personal security
Individuals inherently value their personal security, and tort law reflects
this through various protective mechanisms. For instance, when one
individual induces fear of impending physical harm in another, it might give
rise to a claim in the tort of assault. Should that threat materialise into
physical contact, the aggrieved party might seek recourse through the tort
of battery. Similarly, any unauthorised constraint on an individual's freedom
of movement can be grounds for a false imprisonment claim. Moreover,
when personal harm arises from carelessness, the injured party can
potentially lodge a claim under the tort of negligence.
As society progresses, so too does the breadth of protection for personal
security. Historically, the domain of tort law seldom engaged with
psychiatric damages. However, contemporary society, armed with
advancements in psychiatric medicine and shifting societal norms,
recognises the severe mental distress that witnessing a traumatic event
can induce. Consequently, the legal system now offers protection against
specific kinds of mental anguish, such as psychological harm resulting from
observing an accident caused through negligence.
Further complexities emerge in the realm of medical treatments. There's a
growing trend amongst patients to question medical advice rather than
accepting it blindly. This inclination has propelled courts to delve into
intricate issues surrounding informed consent and the sanctity of life. The
interplay between legal and ethical considerations becomes palpable in
scenarios like those where a patient, citing religious beliefs, denies a lifesaving blood transfusion. How does the law navigate such a predicament?
b) Interest in property
The wider concept of property, encompassing tangible and intangible
assets, finds safeguarding within the realms of tort law. When considering
land and real estate, several torts, including nuisance, the precedent set in
Rylands v Fletcher, and trespass to land, serve to protect an individual's
interest. On the other hand, personal property interests, such as belongings
or chattels, are shielded by torts like trespass to goods and conversion. For
instance, if a negligently driven vehicle collides with another, damaging its
paintwork or structural integrity, the owner could potentially seek damages
through the tort of negligence.
Protection of Economic Interests
Tort law extends its protective arm, albeit cautiously, to economic interests
too. Provided the defendant has acted illicitly, resulting in economic
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detriment to the claimant, certain economic torts might come into play.
Such legal safeguards are characteristically circumscribed, stemming from
common law's prudence in distinguishing between lawful and unlawful
commercial behaviours. Primarily, legislative enactments demarcate these
boundaries, as illustrated in the case of OBG Ltd v Allan [2007] 2 WLR 920.
A debated domain within tort law addresses the magnitude of accountability
for economic damages caused by negligence. This intricate juncture where
tort law converges with contract law discerns between economic losses
consequent upon tangible damage (to property or person) and those
classified as ‘pure’ economic losses.
c) Reputation and privacy
In contemporary society, an individual's interests in their reputation and
privacy have surged in significance. If someone’s standing is tarnished due
to false verbal or written statements, they might resort to the tort of
defamation to seek redress.
1.7 Objectives of Tort Law
Tort law’s objectives can be delineated as:
a) Compensation
Primarily, tort serves as an avenue for victims to obtain redress for injuries
or losses sustained. It offers a framework to ascertain accountability and
evaluate, then award, the requisite compensation.
d) Protection of Rights and Interests
Tort law upholds one’s rights pertaining to property (both tangible and
intangible), reputation, and bodily safety. To cater to these distinct facets,
specific torts have been crafted. For instance, while the tort of nuisance
safeguards one's peaceful enjoyment of land, defamation ensures the
protection of reputation, and negligence addresses general duty breaches.
c) Deterrence
Tort rules are often seen as instruments of deterrence. They promote
prudence, urging individuals to be wary of potential risks and the potential
ramifications of their actions on others and their assets. This is evident in
heightened risk management approaches adopted by entities like
manufacturers, healthcare providers, and employers. Though its deterring
impact in areas like motoring is more nuanced, insurance premiums still
incentivise careful conduct.
d) Retribution
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Within the tort system, there exists an undertone of retributive justice.
Often, victims harbour desires to witness wrongdoers face scrutiny in court.
While this sentiment may be more pronounced in defamation cases and
intentional torts, it often takes a backseat in personal injury claims,
typically settled by insurance firms. However, the underlying satisfaction
might lie in the inconvenience and potential costs incurred by the
defendant, especially since most cases culminate outside courtrooms.
e) Vindication
Tort offers a platform for individuals to seek public affirmation of their
righteousness in a contentious matter. Yet, the majority of disputes settle
outside the legal system, rendering this vindicatory aspect somewhat
muted.
f) Loss Distribution
At a rudimentary level, tort is perceived as a mechanism for dispersing
losses arising from illicit actions. This entails reallocating compensation
costs from the aggrieved party to the transgressor, or more commonly, the
latter’s insurer. This cost reallocation, albeit indirect, is borne by all – be it
through insurance premiums or inflated product prices. While the system’s
administrative costs reflect its price, it isn't devoid of intrinsic challenges –
from potential emotional strains for claimants navigating the legal terrain
to practical hurdles like funding lawsuits. Alternatives to tort, purportedly
more cost-effective and efficient for such redistributions, have been
posited.
g) Penalising Erroneous Behaviour
While criminal law predominantly shoulders the responsibility of
penalisation, tort law has a nuanced role. There's an inherent symbolic
moral undertone in mandating an offender to compensate the victim. Yet,
this aspect has seen diminished importance, especially with the advent of
insurance systems.
1.8 Distinction between the Law of Torts and Criminal
Law
The realms of Tort Law and Criminal Law both deal with wrongs and
infractions, but their purposes and outcomes differ substantially. Here’s a
breakdown of the distinction:
Purpose
Tort Law: The primary objective is compensation. When someone's actions
or negligence leads to harm or damage to another person or their property,
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tort law seeks to provide the victim with a remedy, usually in the form of
financial compensation.
Criminal Law: The main goal is to maintain order in society and to punish
wrongdoers. This branch of law is about penalizing individuals who violate
rules deemed important for the well-being and safety of the community at
large.
Initiation of Action
Tort Law: Actions are initiated by the injured party or their representative.
The cases are usually between individuals, and the person who brings the
suit is the claimant or plaintiff.
Criminal Law: Cases are prosecuted by the state or government on behalf
of society as a whole. The person accused of the crime is the defendant.
Outcome
Tort Law: If the defendant is found liable, they are typically required to
pay damages or compensation to the claimant. There's no incarceration or
criminal record associated with a tort judgment.
Criminal Law: If found guilty, the defendant may face a range of penalties,
from fines and community service to probation, imprisonment, or even the
death penalty in some jurisdictions. A conviction usually results in a criminal
record.
Standard of Proof
Tort Law: The standard of proof is usually “balance of probabilities” or
“preponderance of the evidence”. This means that it’s more likely than not
that the events occurred as the claimant asserts.
Criminal Law: The standard is “beyond a reasonable doubt”, a much
higher threshold. This reflects the serious consequences of a criminal
conviction.
Overlap
As the example illustrates, a single incident can lead to consequences in
both arenas. A car accident resulting from reckless driving can lead to a
criminal prosecution for dangerous driving. If convicted, the driver faces
penalties as imposed by the court. Simultaneously, the injured cyclist can
sue the driver in a civil court for negligence to recover damages for injuries
and property damage. If the driver is found liable in the civil action, they’ll
be ordered to pay compensation.
In essence, while both Tort and Criminal Law address wrongs, they serve
distinct roles in the legal system, with torts focusing on redress for the
victim and criminal law on penalizing and deterring offenders.
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2 Distinguishing Tort from other legal categories
The essence of tort law becomes clearer when differentiated from other
legal classifications. The primary contrasts can be identified between torts
and criminal acts, as well as between torts and other civil infractions.
2.1 Distinction between the Law of Torts and Contract
Law
Both the Law of Torts and Contract Law fall under the umbrella of Civil Law,
but they operate in distinct ways and address different aspects of
interpersonal and commercial relationships. Here's a concise comparison of
the two:
Origin of Obligations
Contract Law: Here, obligations arise from agreements that parties
willingly enter into. Parties in a contract explicitly set terms and conditions
that outline their responsibilities and rights. Essentially, it's about enforcing
promises.
Law of Torts: This deals with obligations that are not voluntarily agreed
upon but are rather imposed by the law. These obligations are typically
about ensuring people act reasonably and avoid causing harm to others.
Voluntariness
Contract Law:The obligations are voluntary. Parties have the freedom to
negotiate terms and decide if they want to be bound by them.
Law of Torts: The obligations are involuntary. They are imposed based on
societal norms and legal precedents about what is deemed to be reasonable
behavior.
Scope
Contract Law: Primarily concerns the duties between parties that have a
contractual relationship.
Law of Torts: Has a broader scope, encompassing not just contractual
relationships but any actions where one party's behavior causes harm or
loss to another. It includes aspects like nuisance, negligence, and product
liability.
Remedy
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Contract Law: The primary remedy is damages or specific performance to
ensure the aggrieved party is placed in the position they would have been
if the contract was fulfilled.
Law of Torts: The primary remedy is also damages, but the intent is to
compensate the victim for their actual loss or injury.
Basis of Liability
Contract Law: Liability arises from the breach of terms agreed upon in the
contract.
Law of Torts: Liability arises from the breach of a duty imposed by law to
act reasonably and avoid harm.
Overlap
In some scenarios, a single act can give rise to both contractual and tortious
liabilities. For instance, if a professional provides negligent advice, a client
might sue under contract law for breach of the professional agreement and
under tort law for negligence. The decision on which path to take might
depend on factors like time limits for legal actions or how damages might
be assessed in each case.
In conclusion, while both the Law of Torts and Contract Law aim to provide
remedies for aggrieved parties, their origins, nature of obligations, and
mechanisms of addressing grievances are distinct.
END
Reading list
Cooke J, Law of Tort (12th edn, Pearson 2015)
Harpwood V, Modern Tort Law (7th edn, Routledge 2009)
Jones L, Introduction to Business Law (2nd edn, OUP 2013)
Mvunga MP and Ng’ambi SP, Mvunga and Ng’ambi on Torts (UNZA Press
2011)
Peel E and Goudkamp J, Winfield and Jolowicz on Tort (19th edn, Sweet &
Maxwell 2014)
©2023
Dumisani J Ngoma LLB, MA, AHCZ, PhD
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