Law of Tort
Law of tort deals with civil wrongs. The whole essence of the law of torts is founded in the law of negligence . A tort can therefore be referred to as “a civil wrong punishable by damages“. Tort is a civil wrong and a branch of civil law.
Salmond defines tort as:
“a civil wrong for which the remedy is a common law action for unliquidated damages and which is
not exclusively the breach of a contract or a breach of trust or other merely equitable obligation.”
On the other hand, Kodilinye & Aluko defined tort as:
“a civil wrong involving a breach of duty fixed by law, such duty being owed to persons generally and
its breach being redressable primarily in an action for damages.”
In criminal law, the plaintiff is always the state and the defendant, if found guilty of a particular crime, is punished by the state unlike in the law of torts which is civil in nature and is typically between private parties , in some instances however government can sue and be sued.
In law of torts the plaintiff is the victim of an alleged wrong and the unsuccessful defendant is either directed to pay damages to the plaintiff or to desist from the wrongful activity [ injunction] . Examples include intentional tort like battery, defamation, invasion of privacy and unintentional torts such as negligence.
The touchstone of tort liability is negligence; if the injured party can??? prove that the person believed to have caused the injury acted with negligence, at the very least tort law will compensate him. The Law of torts recognises intentional torts and strict liability which apply to defendants who engage in certain actions.
Strict liability can either be contractual or tortious. When contractual, the remedy is damages but when tortious, it is a crime.
In tort law, injury is defined broadly. Injury does not just mean a physical injury but such injury reflect any invasion of individual interest.
Functions of the Law of Tort
In addition to the primary task of tort law to define the circumstances in which a person whose interest has being injured or harmed may seek compensation tort actions can sometimes be used as an alternative to the law of contract (where a person has relied on a promise for example to do some form of work carefully) or to supplement the law of contract.
Tort law may also be used as a vehicle for determining rights. Disputed possession of land may be tested through an action for trespass. Misappropriation of chattels may be dealt with through the tort of conversion which is primarily concerned with questions of title, although the ultimate remedy is to compensate the owner for his loss. Important questions of civil liberty may be tested by an action for nominal damages. For example, the right to vote, trespass to person, trespass to land or trespass to chattel.
Relationship Between Law of Tort and other Courses
- Tort and Crime:
There is some overlap between tort and crime. For example, in most common law countries, an assault is both a crime and a tort (a form of trespass to the person). A tort allows the victim to obtain a remedy that serves their own purposes . For example, payment of damages to a person injured in a car accident or the obtaining of an injunctive relief to stop a person interfering with their business.
Criminal actions on the other hand are pursued not to obtain a remedy to assist the person although quite often, criminal courts do have power to grant such remedies but they would rather remove their liberty on the state’s behalf. That explains why incarceration is usually available as a penalty for serious crimes but not in tort. The more the severity of the penalty in criminal law means that it requires a higher burden of proof than in tort law.
- Torts and Insurance:
Misfortune happens and when it does, its victims incur costs. Those costs can remain the burden of the victim or they can be shifted to others. Sometimes, the costs are borne by everyone within a particular group or a political community. At other times, the costs are borne by particular individuals namely those who are responsible for having caused them. Tort law and Insurance are thus connected in the following ways:
Tort Law establishes conditions under which victims can shift at least some of the cost they incur to others . All individuals realise that they may be subject to a judgement against them in Tort and so many buy third party insurance to protect them from bearing the full cost of those judgements. In some jurisdictions, third party insurance is mandatory.
All individuals are likewise aware that they may be victims of another person’s actions and may not be able to secure a favorable judgement against their injurers, or they may not deem it worth the effort to pursue interest through the court, so many of them buy first party insurance to guard against some of the costs they should otherwise have to shoulder completely. It must however be noted that tort law provides an avenue of redress, not a guarantee of recovery .
The victim must determine whether pursuing a remedy through Torts is worth the effort and the cost. Where the victim chooses the form of redress, provided by Tort Law, he is given the opportunity to shift his losses to another provided the conditions the law set out for doing so have been met . These conditions set out is what we call liability rules.
- Tort law and contract:
Tortious duties exist by virtue of the law itself and are not dependent upon the agreement or consent of the persons subjected to them . Tortious liabilities could therefore be distinguished from contractual liabilities and from liabilities on bailment, neither of which can exist independently of the parties or at least the defendant’s agreement or consent.
The interests and liabilities in contract are restricted to prior agreements between the parties and the damages are liquidated . Whereas interests and liabilities in tort are based on the common law and related statutory provisions and the damages are much more responsive to the injury or harm suffered in a particular case.
Categories or Classification of Torts
Tort law may be classified in a number of ways:
- Negligence tort.
- Intentional tort.
- Statutory tort.
- Economic tort.
They can also be classified according to the type of rights or interest they aim to protect or preserve.
Concerning the interests protected or defended, tort law may be classified as:
- Tort protecting personal interests e.g trespass to land or person.
- Tort protecting integrity of the judicial process e.g. malicious prosecution.
- Tort protecting personal reputation e.g defamation
- Tort protecting economic interests such as injurious falsehood, deceit
- Tort protecting relationship and property interests.
- Tort protecting other interests.
- Negligence torts:
The dominant action in tort is negligence. It is so because it is not only a tort in its own right, it is also a way by which many torts may be committed. Negligence is a tort which depends on the existence of a breach of duty of care owed by one person to another. A popular case in negligence is Donoghue v Stevenson  AC 562
- Intentional Torts:
Intentional Torts are any intentional acts that are reasonably foreseeable to cause harm to an individual and the doing of that intentional act. Intentional Torts have several subcategories including Torts against the person (assault and battery), false imprisonment, intentional infliction of emotional distress, nuisance and fraud.
- Statutory Tort:
A statutory Tort is like any other in that it imposes duties on private or public parties.
However, they are created by the legislature and not the courts . Example is the law of consumer protection with product liability in the European Union which informs making defective products that injure or harm people, paying the damages resulting thereof. (Strict liability is statutory. See Grant v. Australian Knitting Mills [ 1935] All ER Rep 209.)
- Economic Tort:
(Designed to help people in business in order not to run out of business.)
Economic Torts protect people from interference with their trade or business. Torts under this are passing off and Deceit.
Lecture – Dr Adeleke, Faculty of Law, Obafemi Awolowo University, Ile-Ife.