LAW DEVELOPMENT CENTRE ‘A Tradition of Legal Excellence DEPARTMENT OF LAW AND CONTINUING LEGAL EDUCATION KAMPALA CAMPUS, COURSE TITLE: LAW OF TORTS: LECTURER (8): Paul MUKIIS! (Head, Department of Law Reporting, Research & Law Reform & Professional Advisor. LOC) Joyce TURAHIRWA (Professional Advisor, LDC Kampala Campus) (COURSE LEADER: Mr. Precious B. NGABIRANO (Head, Department of Law & CLE & Professional Advisor, LDC) TOPIC 01: Introduction to the Law of Torts DATE: Friday May 24" 2021 TIME: 04:00PM.08:00PM (EVENING) VENUE: AUDITORIUM ‘TOPIC 01: INTRODUCTION TO THE LAW OF TORTS: Topic O1-introduction to the Law of Torts i3.0 Main content 3.1 Defini oF tort 3.2. The purpose of the law of torts 3.3 The Rule in Smith v. Selwyn 4.0 Conclusion 5.0 Summary 6.0 Revision Questions 7.0 References /Further reading 1.0 INTRODUCTION This topic considers the definition, objectives and the scope of the law of torts. It also takes an overview of the subject 2.0 OBJECTIVES By the end of this topic, you should be able to: » Define law of torts: » Understand the purpose of the law of torts; and > Explain the rule in Smith v. Selwyn. 3.0 MAIN CONTENT 3.1 Definition of tort The word ‘tort’ Is derived from the latin word “tortus.” which means ‘twisted’. It means ‘Wrong’ and it Is still so used in French: J‘af tort’; | am wrong.” In English, the word ‘tort’ has 8 purely technical legal meaning - a legal wrong for which the law provides a remedy. Academics have attempted to define the law of tort. but a glance at all the leading textbooks on the subject will quickly reveal that it is extremely difficult to arrive at Topic 01-Introduction to the Law of Torts a2 satisfactory, all embracing definition. Each writer has a different formulation and ‘each states that the definition is unsatisfactory. Let us now consider some of these definitions. Te use Winffeld’s definition as a starting point, we can explore the difficulties involved (Rogers, Winfield & Jolowiez on Tort, 15th edn, 1998, London: Sweet & Maxwell, p.4): Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages. In a similar tone, Prot Heuston, Law of Tort, 18th ed. P11, defined tort as: Sir John W. Salmond in his book Salmond and ‘A civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.” On the other hand, Kedilinye; (Kedilinye, The Nigerian Law of Torts, p.1) defines tort as: A civil wrong involving @ breach of duty fixed by the Jaw, such duty being owed to persons generally and its breach being redressable primarily by an action for damages. From the above definitions, one can deduce that a tort is a breach of a civil duty imposed by faw and owed towards all persons, the breach of which is usually redressed by an award of unliquidated damages, injunction, or other appropriate civil remedy, Jn other words, a tort is a breach of a civil duty imposed by law, whose remedy is unliquidated damages, injunction, or other appropriate remedy. Topic 01-Introduction to the Law of Torts BIA tort is a civil wrong that Is not exclusively a breach of contract, and which is usually compensated by an award of unliquidated damages, injunction or other ‘appropriate remedy, Thus, tart is the breach of a civil duty imposed by law towards all persons, the remedy of which is mainly monetary compensation, injunction or ‘other appropriate civil remedy: As we can see, tort Is not easy to define, first, because the difference between tort and other civil wrongs is a thin line. Sharing this view, Kenny; (Kenny's, Outline ‘of Criminal Law, 16th ed. by J. W. Cecil 1952, p. 543.) said: “To ask conceming any occurrence is this a erime or is it a tort"? Is to borrow SIR JAMES STEPHEN’s apt illustration - no wiser than it would be to ask concerning a man; Is he a father or a son? For he may welll be both, ‘Secondly, tort is difficult to define because the law of tort runs through the whole of law. Explaining this feature of tort, KEETON (Law of Torts, 15th ed, 1984 p. 2-3) observed: “In the first place, tort is a field which pervades the entire law, and is so interlocked at every point with property, contract and other accepted Classifications. that as the student of law soon discovers, the categories are quite arbitrary. In the second, there is a central theme...running through the cases of what are called torts, which although dificult to put into words, does distinguish them...from other types of cases.” In order to understand tort, it may be helpful to withdraw for a moment from the problems of definition and take an averview of the subject to consider the nature ‘of the duties which are imposed and the interests which are protected by this branch of civil law. 3.2 The Purpose of the Law of Torts The word “tort” means “wrong”. Any unjustifiable Interference with the right of another person may be a tort. As a part of civil law, the purpose of the law of tort to prohibit 2 person from doing wrong to another person, and where a wrong is Topic 01-Introduction to the Law of Torts ta]‘done, to afford the injured party, right of action in civil law, for compensation, or ‘other remedy. such as an injunction directing the wrongdoer who is known as a tortfeasor to stop doing the act specified in the court order and so forth. Damages are the monetary compensation that is paid by a defendant to a plaintiff for the wrong the defendant has done to him. The essential aim of the law of torts is to compensate persons harmed by the wrongful conduct of others. The substantive law of torts consists of the rules and Principles which have been developed to determine when the law will and when it will not grant redress for damage suffered. Such damage takes several different forms such as physical injury to persons: physical damage to property: injury to reputation; and damage to economic interests. The law of torts requires every ersan not to cause harm to others in certain situations, and if harm is caused. the victim lis entitled to sue the wrongdoer for damages by way of compensation. Monetary damages are the normal remedy for a tort But there is another portant remedy, the injunction, which is a court order forbiddingyrestraining the defendant from doing oF continuing to de 8 wrongful act. Whether the plaintif is claiming damages or an injunction, he must first prove that the defendant has committed a tort, for the law of torts does not cover every type of harm caused by ‘one person to another. The mere fact that A’s act has caused harm to B does not necessarily give B a right to sue A for damages in tort. unless B can show that A's act was of a type which the law regards as tortuous, that is, actionable as a tort. ‘Thus, the purpose of the law of tort is to prohibit torts, and where a tort is ‘committed the law of tort provides @ remedy for it, by an award of damages or ‘other appropriate relief. The law of tort deals with a wide variety of wrongs related ‘and unrelated. Thus, the law of tort enforces rights and tial ty and provides remedy in the areas covered by the law of tort which includes the following: 1) Trespass to person, that is, assault, battery and false imprisonment. 2) Malicious prosecution3) Trespass to chattel, that is, conversion and detinue 4) Trespass to land 5) Negligence 6) Nuisance 7) The Rule in Rylands v. Fletcher (strict lability) 8) Liability for animals 9) Vicarious liability 10) Occupier’s ability 12) Defamation 12) Deceit 13) Passing off 14) Economic torts, such as, injurious falsehood, interference with contract, ete Essentially, the law of torts protects personal and property interests from being harmed by other persons. Everyone Is under a duty not to interfere with the jerests of other persons. Where a person interferes with the interest of another ppersan, without legal justification or excuse, the law af tart intervenes to apportion blame and award damages or other appropriate remedy The main remedies avaliable to a person in the law of tort-are several and include: 1) Award of damages that is monetary compensation, See the case of Shugaba v. Minister of Internal Affairs & Ors (1981) 2 NCLR 459. 2) Injunction and/or 3) Any other remedy, stuch as, an order to abate @ nuisance, or for specific restitution of a chattel of which the plaintiff has been dispossessed, etc. ‘The law of tort should be of Interest to the average individual because tort is an everyday occurrence and the law of tort provides remedies for many common cidents of daily life. The torts which occur every day include trespass to person, trespass to property, nutsance, negligence, etc. The law of tort defines tortuous acts, apportions blame and determines the appropriate remedy to be granted when a tort has been committed.A summary of the Objectives of the Law of Tort ‘The objectives of the law of tort can be summarized as follows: 1) Compensation: The most obvious objective of tort is to provide a channel for compensating victims Of injury and loss, Tort is the means whereby issues of liability can be decided and jon atsessed and awarded, compens: 2) Protection of interests: ‘The law of tort protects a person's interests in land and other property, in his or her reputation, and in his or her bodily integrity, Various torts have been developed for these purposes, For example, the tort of nuisance protects a person's use or enjoyment of land, the tort of defamation protects his or her reputation, and the tort of negligence protects the breaches of more general duties owed to that person. 3) Deterrence: It has been suggested that the rules of tort have a deterrent effect, encouraging people to take fewer risks and to conduct their activities more carefully, mindful of their possible effects on other people and their property, This effect is reflected in the greater awareness of the need for risk management by manufacturers, ‘employers, health providers and others. This is encouraged by insurance companies. 4) Retribution: ‘An element of retribution may be present in the tort system. People who have been harmed are sometimes anxious to have 3 day in court in order to see the Perpetrator of their suffering squirming under cross-examination, This is probably a more Important factor in libel actions and intentional torts than in personal injury claims which are paid for by insurance companies. In any event, most cases are settled aut of court and the only satisfaction to the claimant lies in the knowledge Topic 01-Introduction to the Law of Torts PIthat the defendant will have been caused considerable inconvenience and possible ‘expense. 5) Vindication: Tort provides the means whereby a person who regards himself or herseit as innocent in a dispute can be vindicated by being declared publicly to be ‘in the right” by a court, However, again it must be noted that many cases never actually come before a court and the opportunity for satisfaction does not arise. 6) Loss distribution: Tort Is frequently recognized, rather simplistically, as @ vehicle for distributing losses suffered as a result of wrongful activities. In this context loss means the cost ‘of compensating for harm suffered. This means redistribution of the cost fram the claimant who has been injured to the defendant or in most cases the defendant's insurance company. Ultimately, everyone paying insurance or buying goods at a higher price to cover insurance payments will bear the cost. The process is not easily undertaken and it involves considerable administrative expenses which are reflected in the cost of the tort system itself. There are also hidden problems attached to the system, such as psychological difficulties for claimants in using lawyers and the courts, and practical difficulties such as the funding of claims which may mean that many who deserve compensation never receive It. It has been suggested that there are other less expensive and more efficient means than tort for dealing with such loss distribution. 7) Punishment for wrongful conduct: Although this is one of the main functions of criminal law, it may also play a small Part in the law of tort, as there is a certain symbolic moral value in requiring the wrongdoer to pay the victim, However, this aspect has become less valuable with the introduction of insurance, 3.3 The Rule in Smith v. Selwyn (1914) 3 KB 98 Topic 01-Introduction to the Law of Torts 181The common law rule in Smith v. Selwyn states that where @ civil wrong is also @ Compensation » Protection of interests » Deterrence Topic 01-Introduction to the Law of Torts ty> Retribution > Vindication > Loss distribution > Punishment of wrongful conduct 6.0 ASSIGNMENT OR REVISION QUESTIONS 1) Different scholars have defined the term “tort,” differently. With reference to scholarly views, how do you define the term "tort?" 2) Explain what you understand by the rule In Smith vs. Selwyn. 3) Explain the exceptions to the rule in Smith vs. Selwyn and its applicability In Uganda (if any) today. 4) With reference to clear authorities/llustrations, discuss the objectives of the law of terts in Uganda, 7.0 REFERENCES/FURTHER READIN! » Rogers, Winfield & jolowicz on Tort, 15° edn, 1998, London: Sweet & Maxwell » J. W.Cecil, Kenny's Outline of Criminal Law, 16th ed. 1952 » KEETON, Law of Torts, 15th edn, 1984 Harpwood Vivienne: Modern Tort Law, Sth ed., US: Cavendish Publishing Lt 2003, <<<<< End of Topic 01 >>>>>