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SHORT SUMMARY OF THE TOPIC

A civil wrong for which the law offers a remedy to the victim is the law of tort. Tortuous liability arises from the violation of a duty fixed by law. This duty is towards persons generally, and the institution of action can redress the infringement of same in court for damages.

The law of tort aims to compensate persons harmed by the wrongful actions of others. By this, the law of tort has been used to protect personal interests in property. For instance, torts of nuisance and trespass protect personal interests and property such as land, among others.

Another aim of the law of tort is protection of people from intentional interference, through actions for assault and false imprisonment, and the reputation, through the torts of libel (published), slander (unpublished), malicious prosecution and injurious falsehood. The law of tort requires every person not to cause harm to others, and if harm is caused the victim is entitled to sue the tortfeasor for damages, by way of monetary compensation.

However, there is also an injunction which is, a court order restraining a particular party from doing a wrongful act. It should be noted that to succeed in an action for tortuous liability in court, breach of a right by a wrongdoer must have been done either intentionally or negligently. An act is intentional when it is done with full knowledge to its consequences coupled with the desire of it. There are some known natural consequences of specific actions when done.

A party is considered to intend the natural consequences of his action where for instance, D shoots a gun at a cat, and the cat died. D cannot be exonerated by pleading that he only intends to injure the cat.

Negligence is the failure to take reasonable observance where there is a duty which resulted in damage to another. In a circumstance where such has occurred, the negligent party will be liable in tort. Negligence will be discussed more below.

It is important to note that some tort actions arise without intention or negligent on the part of a wrongdoer. These are called torts of strict liability. For example, if B keeps a dog, B will be liable for any damage caused by the dog, although the damage caused by the dog is unintended by B and was not careless in allowing it to occur.

It is also worthy of note that motive is irrelevant in the law of torts. If a person has a good, but the cause led to a breach of a right, such a person will be held liable under tort notwithstanding the prime motive. As an example, X locks up his employee K in the office library to ensure K reads because K is averse to reading, X will be liable to K in tort for false imprisonment. The prime motive will not avail X here. Even where X negligently locks up K in the office library, X remains liable in tort.

The locus classicus case of Donoghue v. Stevenson (1932) AC 562 laid the foundation for the law of negligence. Negligence is complete and actionable where:

  • The defendant sued owed a duty of care to the plaintiff
  • The duty of care was breached
  • The plaintiff who sued suffered damage arising from the breach

To prosper in action for negligence, the plaintiff must adduce evidence to show the duty of care owed by the defendant, the violation of that duty by the defendant, and the damage inferred by the plaintiff as a consequence of the defendant's failure to take care. The above may not, however, be necessary where the defendant admits negligence.

In cases of negligence, each case is determined in the light of its facts. Generally, motorists and other road users owe themselves a duty of care as to physical injuries. Doctors and Healthcare providers owe a duty of care to patients. Coaches owe a moral responsibility towards the athletes, especially, disabled athletes, and employers owe the duty of care to their employees. The list goes on.

Damage is measured in action for negligence based on the principle of restitution in integrum which means a successful plaintiff in action in negligence must be restored to the position he was before he suffered the loss. The monetary compensation will ensure this in this regard.

There are two principal defences to negligence actions that can be raised by the defendant.

  • Contributory negligence
  • Volenti non-fit injuria

A person will be guilty of contributory negligence when he fails to take into account, as a reasonable man, the possibility of others being careless. Thus, a person is guilty of contributory negligence where he takes a lift from a man who he knows that his car has a defective brake.

Literally, 'volenti non-fit injuria' means 'no injury is done to one who consents'. In other words, it means no person can enforce a right which he voluntarily waived or abandoned.

The tort of trespass to land is another means in which the right of a person can be breached. Trespass to land means any unjustifiable interference with land in possession of a party. The slightest disturbance to the ownership of property by a person who cannot show a better right to possession constitutes trespass to land.

The tort of trespass to land comprises of directly entering upon property, or remaining upon a land, or placing or projecting any objection on land without a title and in possession of another.

The feature of directness distinguishes trespass to land from nuisance. Nuisance involves entry indirectly. Entry upon a property can be above or below the surface of the ground or into the airspace above the land. Land includes any building, fixtures attached to a property, the airspace above the property and the ground beneath to the centre of the earth, hence, the maxim 'Cuiusestsolum, eiusestusqueadcoelum et ad inferos'. Meaning, 'Whoever possesses the land also possesses the sky above it to the highest heavens and the earth beneath it to the greatest depths'.

Assault and battery are the other two universal principles of the law of torts. Assault is any willful attempt or threat to inflict injury upon another with the ability to do so. Conversely, a battery is the application of direct physical force to the person of another. The performance of an operation by a surgeon without the consent of the patient is battery although this may be subject to laws guiding the provision of healthcare services in different jurisdictions. The least touching of another while angry is a battery. Both assault and battery are actionable in law.

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