INTRODUCTION TO THE LAW OF TORT

The term the law of tort is the French term equivalent to the
English word “wrong” and the Roman term “delict”. It was
introduced into the English law by Norman jurists. The word tort is
derived from the Latin term tortum to twist, and implies conduct
which is twisted or tortuous.

Generally the term tort may be defined in general terms as a civil

wrong independent of contract for which the appropriate remedy
is an action for liquidated damages. It is a breach of a duty arising
out of personal relation or undertaken by contract which is related
in one of the following ways to harm (including interference with
absolute right, whether there are measurable actual damage or
not) suffered by a determinate person;

(a) It may be an action which, without lawful justification or

excuse, is intended by the agent or to cause harm, and
does cause the harm complained of;
(b) It may be an act itself contrary to law or an omission of
the specific legal duty, which causes harm not intended
by the person so acting or committing.
(c) It may be an acting violating an absolute right (especially
rights of possession or a property) and treated as
wrongful without regards to the actor’s intention or
knowledge.
(d) It may an act or omission causing harm which the person
so acting or omitting to act did not intend to cause, but
 might and should with due diligence have foreseen and
hence prevented
(e) It may in special cases consist merely in not avoiding or
preventing harm which the party was bound, absolutely
or within limits, to avoid or prevent

Elements of a tort

(i) There must be a duty imposed by the law

(ii) The duty must be towards persons generally as
opposed to a specific person
(iii) Be breach must be possible to be remedied
(compansatable) by unliquidated damages.

These elements are correctly explained by the illustration herein

below appearing;

“A” drives his car carelessly with the result that it mounts the
pavement and hits “B’, a pedestrian, causing “B” personal injuries.
The act is “A” driving the vehicle. This act has caused damage to
“B.” The damage was as a result of “A’s” carelessness, i.e. his
fault. The injury suffered by “B”, personal injury, is recognized by
law as attracting liability.

” A” in this case will be liable to “B” in the tort of negligence and

“B” will be able to recover damages. This is due to the fact that
“A” had the duty of ensuring that in his course of driving he
causes no injury to “B” but he has breached this duty as a result
“B” has suffered damages hence being entitled to get
compensation.

Difference between tort and crime;

(i) Tort is a civil wrong meaning a wrong against

individual but a crime is a wrong against the state
(ii) While tort is punishable by payment of unliquidated
damages, crime is punishable by payment of a fine or
imprisonment (sentence) or both.

Difference between contract and tort

(i) In contract there is a consent of the parties which is

not the case in tort where there is no consent of the
parties and that the presence of consent to the parties
operates as an estopel against the party so consent as
per the principle of volentia non fit injuria.
(ii) While in the case of contract there the possibility of a
party being awarded both the liquidated and non-
liquidated damages, this is not the case in tort where
the only possible recoverable damages are
unliquidated damages.
(iii) A contract requires privity of contract (between parties
to it) while in tort privity is not needed.
(iv) Tort is violation of right in rem of right in some
determined person, either personally or as a member
of the community, and available against the world at
large whereas the breach of the contract is
 infringement of a right in personam i.e. of right vested
to some determined person or body and in which the
community at large has the concern.

Possible defenses against tortious liability;

(i) Consent that is to say when a person consent for the

damages then that person cannot be heard claiming
for compensation (maximum volentia non- fit injuria)
(ii) Lack of malice also serves as a defence that is to say
that when a person without an intention to cause harm
to the victim. However this is not the case when it
comes to the issue of strict liability i.e. There are some
acts which are strict in sense that if a person commits
there is no need to look on the mental element of the
person so committing. Only the act itself makes the
person liable e.g. in the cases involving negligence.
But when it comes to the case like malicious
prosecution it must prove that the defendant opened
the said criminal proceedings with malice.
(iii) Lack of intention is also another defence where some
tort liability needs existence of intention. This is the
case for example in the case of injurious false hood
and trespass. There if the defendant proves that he
had no any intention of causing the claimed tort then
this is a good defence.
Tort covers the following aspects

(i) Negligence
(ii) Vicarious liability
(iii) Defamation
(iv) Trespass
(v) Conversion
(vi) Occupier’s liability
(vii) Employer’s liability
(viii) Nuisance
1. NEGLIGENCE

Negligence was defined in the case of HEDLEY & COMPANY ltd

Versus HELLER AND PARTNER as lack of a proper care or; falling
short of an objective standard of conduct or; Careless conduct in
omission or commission

Elements of negligence

In order to succeed in the claim of tort the following must be

proved;

(i) That there was an existence of duty of care

(ii) That there is a breach of the duty so vested
(iii) That as a result of that duty the other party has
incurred damages.
Examples of the duty of the circumstance in which the
said duty normally is deemed to exist;

(i) The bank has the duty to protect the accounts of its
client from whatever kind of dealing with third parties
without the client’s consent
(ii) The doctor/ hospital has the duty towards patients
(iii) The driver/ owner of the vehicle have the duty towards
the passengers therein.
(iv) The driver has the duty towards fellow users of the
road.
(v) Producers and sellers of goods have the duty to the
consumers.
(vi) Consultation firms e.g accountants and lawyers are
having duties to their clients.

in the case of RAYLAND V. FRETCHER it was accordingly held

that if a person brings or accumulate in his land something
which if it escapes may cause damage to his neighbor, he does
so in his peril (risk) meaning that the person so accumulating
or bringing something which has the possibility of escaping is
having the duty to prevent the same not to escape in the
neighbor’s land. Failure to do so should the said thing escape
then the person so bringing should responsible for the damages
so caused to the neighbor.

It was held in the case of DONOGHUE V. STEVENSON that

every person has the duty not injure his or her neighbor. In this
 case the court defined a neighbor as any person who is likely to
be affected by another’s conducts.

Reasonable care required to prove negligence.

Care which is required to be proved in the tort is only a

reasonable care from the experiences of a reasonable and
prudent person. In the case of NETTLESHIP V WESTON [1971]
2 QB 691; the defendant was a learner driver who was given
lessons by the plaintiff. The plaintiff was injured as a result of
the defendant’s negligent driving. The court held that all
drivers, including learner drivers, would be judged by the
standards of the average competent driver. This means that it
is upon the reasonable and prudent person only who may
decide whether there is negligence or not.

REMEDIES FOR NEGLIGENCE

The person who is injured is entitled to recover both general

and specific damages provided he proves for the same.

2. TRESPASS

Trespass is the interference of someone’s property/ land without

his or consent. Trespass may be;

(i) Trespass to land

(ii) Trespass to chattel/goods
(iii) Trespass to personal action
(i) Trespass to land
 This occurs when a person interferes someone’s right to land
without prior permission or remaining to the said land after
having been permitted to enter but his time of staying therein
has lapsed but do not leave. Trespass in land happens when
someone allows something else to enter within someone’s land
without consent of the owner.

The remedy for trespass is recovery for specific and general

damages. In addition to damages the person so affected may
be awarded with a permanent injunction.

(ii) Trespass to person

This is an infringement or interruption of the right to an individual

right or freedom of a person. This involves an assault, battery,
and false imprisonment.

(a) An assault
This is an attempt for a threat to apply force on a person
from another person where the other is put into
apprehension of a real danger or in a state of a fear of
immediate violence.
(b) Battery
This is an implementation of an assault meaning that it is
an actual use of violence. It includes touching of another
person hostilely or against his will however slight. It may
generally be said as unlawful interference with bodily
integrity. The person so complaining is not required to
show the actual loss so suffered.
(c) False imprisonment
This is the restraining right of movement. It is a wrong
confinement. It is generally a restriction of a personal
liberty to the movement.
(d) Malicious falsehood
This involves malicious publication of falsehoods: ‘malice’
comprises either Intent to harm; or Lack of belief in truth
of statement. The person is giving the information about
the victim while knowing the same to be false information
but only because to is calculated to lower the reputation
of the victim. The victim is at liberty to sue for damages.
(e) Malicious prosecution
This does not fall in the category of trespass but it is
related to personal rights. It aims to protect people from
misuse of the legal machinery (courts of law). Malicious
prosecution is said to exist when the defendant without a
reasonable and probable cause institutes criminal
proceedings against the plaintiff and that the proceedings
are terminated in favor of the plaintiff.

Elements of malicious prosecution

(i) The plaintiff must prove that he was prosecuted that is

to say that the plaintiff must prove that the respondent
instituted the proceedings in the court.
(ii) Prosecution must be terminated in favor of the
plaintiff. That is to say that the plaintiff must have won
the criminal case which was instituted against him.
(iii) The plaintiff must prove that the said proceedings
were instituted without reasonable and probable
cause. The criminal proceedings must have been
instituted within any legal justification i.e. must be
unreasonable.
(iv) Damages/injury must have resulted therefrom. in
order to know the damages so suffered is to be
measured as per the principle laid down in the case of
SAVILE V. ROBERT where it was held that the actual
damages is to be proved in the examination of the
following;
(a) Damage of reputation of the plaintiff
(b) Damage in respect of personal security of the
plaintiff
(c) Pecuniary loss
In the case of SIMON CHATANDA V. ABDUL
FISOMA (1973) LRT 11 where the appellant had
reported to the police that the respondent had
stolen his radio while the fact was clear that the
radio was sent to him for repair as a result the
respondent was prosecuted and he won the
case and finally he sued for malicious
prosecution. The court held;
 (i) Where a person sets the law in motion and causes
another to be detained by the police, it is no defence
to a suit for wrongful confinement (detention) to
assert that the police thereby become responsible.
(ii) That damages are thereby recoverable when it is
proved that the confinement was false and
unreasonable.
In the case of FESTO MWAKABANA it was held that to
succeed in the claim of malicious prosecution the
plaintiff must prove;
(i) That he was prosecuted and that the prosecution was
without reasonable and probable cause
(ii) That the prosecution was activated with malice
(iii) That the plaintiff has suffered some damages
TRESPASS TO GOODS AND CHATTELS

Trespass to goods happens when the defendant either takes

goods were in the possession of the plaintiff or interferes with the
plaintiff’s possession of goods without taking them away.

3. CONVERSION/ TROVER

This simply means dealing with somebody’s goods as if it were

yours. It is an act of a willful interference without lawful
justification with any chattel in a manner inconsistent with the
rights of another whereby that other is deprived of the use and
possession of it. The claimed interference must be intentional such
as;
 (i) When the property is wrongly taken
(ii) When negligently parted with
(iii) Wrongly sold
(iv) Wrongly detained
(v) Wrongly destroyed or
(vi) When there is a denial of the lawful owner’s right.

Damages for conversion are the measure of the value of goods at

the time of the conversion.

4. VICOURIOUS LIABILITY

This is a liability of the employer for the wrong done by his

servant. It comes from the very common maxim which states
superior respondentia meaning that let the superior respond.
Therefore in the vicarious liability, the employer is held liable for
the tortious liability committed by the employee while he is in the
course of his employment. The phrase in the course of
employment implies all things done under the authorization of the
employer and for his benefit.

Justification of liability to the employer

(i) Because the employer is in the position of controlling

the employee
(ii) Because of the deep pocket theory that is to say that
because the employer in the better economic position
as compared to the employer.
(iii) It is also because the employer has the ability to
command the employee that is to say the supervisory
theory in the sense that whatever the employee is
doing is being done under the authorization of the
employer.
Therefore for example if it is in the case involving a
doctor then if commits any wrong in his employment
the owner of the hospital must also be joined in the
particular case.
However the liability differs between the case of
contract of service and in the case of contract of
service. This is due to the fact that in the contract of
service the following are its distinctive features;
(i) The master has the power to select the
servant
(ii) The master is responsible for the payment of
wage and other remuneration to the servant
(iii) The master normally control the method of
doing the work
(iv) The master also has the option of dismissing
or suspending the employee from the
employment.
This is however not the case when it comes to
the contract for service where the employer
only is interested with the services from the
employee and nothing else. Hence the
 employer does not control both the employee
and the means in which and how the work is
being done. This being the case the employer
cannot be held liable as the employee is
working as an independent contractor. It was
accordingly held in the case of PICKARD V.
SMITH that a wrong committed by an
independent contractor does not impose
liability to the employer.
Therefore when it is the case of a contract of
service any wrong committed by the servant
while in the course of employment must be
directly imposed also to the employer as per
the reasons above stated.

In principal and Agent

When it comes to the principal and agent relation the tort

committed by an agent will make the principal liable only if it has
been committed within his authority or does so within the control
of the principal and not otherwise.

5. EMPLOYER’S LIABILITY

This deals with the liability of the employer to the wrongs suffered
to the employees while in the course of their employment. The
phrase in the course employment indicates even in the time going
and returning from the employment. In short the phrase goes
beyond the ordinary meaning covering everything done by the
employee directly or indirectly connected with the employer.
Therefore the employer is duty bound among others to;

(i) Employ competent staff

(ii) Provide safe place to work
(iii) Provide safety whole system of work

Where the employer fails to undertake these and wherefrom the

employee suffers loss then the employee is liable to the employee
who has suffered the claimed damage.

6. OCCUPIER’S LIABILITY

The term occupier is defined to mean the owner of the premise

(land or home) and he may be owner or even the mere tenant
herein. Every occupier of the premises has common law duty of
care to all persons who are coming in on his premises by his
invitation or permission expressly or impliedly. CHERUBIN
GREGORY V. STATE BIHAR (the toilet case). The duties extend
even to the trespassers and the case of BRITISH RAILWAY BOARD
V. HERRINGTON. But the said duty to the trespasser is limited to
non – infliction of intentional or reckless injuries to the
trespassers.

7. NUISANCE

This is anything done to hurt or annoy a person in relation to his

or her land other than a trespass. The difference between a
trespass and nuisance is that while trespass involves physical
interference, nuisance on the other hand obstructs the right of
quite enjoyment of the land by its owner. In order to claim for
nuisance it does not need a person to be the real owner but only
to be the occupier in any capacity including the squatter or a
tenant.

In the case of CHRISTIE V DAVEY [1893] 1 CH. 316; the plaintiff

and defendant lived in adjoining houses. The plaintiff gave music
lessons and this annoyed the defendant. In retaliation the
defendant banged on the wall and shouted while the lessons were
in progress. The plaintiff was held to be entitled to an injunction
because of the defendant’s malicious behavior and hence he was
liable for nuisance.

Nuisance may be caused by negligence and there may be cases in

which the same act or omission will support an action of either
kind by the two of actions are distinct (civil and criminal).

Nuisance may be private or public;

(a) Public nuisance

This is a criminal liability where a person is said to be guilty for

public nuisance when he does any act or is guilty of an illegal
omission which causes any common injury, danger or
annoyance to the public or to the people in general who dwell
or occupy the property, in the vicinity or which must necessarily
cause injury, obstruction, danger or annoyance to persons who
may have occasion to use any public right.
 Public nuisance may give rise to the civil suit by an individual
only if the following may be proved;

(i) If he proves a specific/ particular injury which he

himself, has suffered beyond that which has suffered
by the rest of the public.
(ii) Such injury must be direct and not mere consequential
injury
(iii) The injury must be shown to be of substantial

PRIVATE NUISANCE

This involves using or authorizing the use of once property or of

anything under once control so as to injuriously affect the owner
or occupier of the property by physically injuring his property or
affecting its enjoyment by interfering materially with his health,
comfort or convenience.

Elements of private nuisance

(i) It must be an unlawful act

(ii) Damage must result therefrom being actual or
presumed.

Private nuisance may be;

(i) By encroachment on a neighbor’s land

(ii) By direct physical injury to a neighbor land
(iii) Nuisance by interference of quite enjoyment
Remedies for nuisance are damages, permanent injunction and
abetment.

By abetment simply means the removal of the nuisance by the

party injured without remorse to legal proceedings. It must be
peaceable, without danger to life or limb and then there must be
notice to the owner of the land if the nuisance is in somebody’s
land unless it is unsafe to wait.

8. DEFAMATION

This refers to the speaking of the words by word mouth or by

writing which is calculated to lower the reputation of a specific
person. Damages may be spoken or written. When it is written it
is called libel and when it spoken it is called slander. Defamation
may be actionable without proof of damages and this is like in the
case which involves;

(i) Imputation of criminal offences punishable by

imprisonment
(ii) When it exposes somebody to veneral diseases
(iii) If it destroys somebody’s chestit
(iv) If it attacks somebody’s profession

Therefore if this person exposes another in the matters outlined

above, then there is no need of proving the actual damages which
he or she has suffered.

Generally defamation is calculated to expose a person to hatred,

contempt or ridicule or to injure him in his trade, business,
profession or calling office or to cause him to be shunned or
avoided in the society.

Defenses against defamation

The following are possible defenses against defamation;

(i) Justification that is to say that the defendant cannot

be held liable for defamation if he prove that the
alleged defamatory information is truth.
(ii) Fair comment meaning that when a person is giving a
fair comment about a certain issue concerning the
plaintiff, then the plaintiff cannot succeed in the claim
for defamation against that defendant.
(iii) Public figure that is to say that where the plaintiff is a
public figure e.g. the president, member of parliament
etc cannot be heard complaining for defamation if the
defamatory word were uttered while he is in the
course of his office.
(iv) Immunity meaning that if the defendant with immunity
such as members of parliament, magistrates and
judges etc while he is in the course of his authority
cannot be sued for the defamation and that should try
to sue then he cannot succeed.