FLEL03C: Law of Tort (1)

Lecture Note 1: Fundamentals of Tort Law

Professor ’Gbenga Bamodu

Reading:
Horsley & Rackley, Tort Law chapter 1; and/or
Elliott & Quinn, Tort Law chapter 1; and/or
Cooke, Law of Tort chapter 1; and/or
Weir, An Introduction to Tort Law chapter 1

Think About!

1. What is a tort?

2. On what basis does or should the law classify an action or omission as a tort?
Consider the claimant’s ‘right’ versus the defendant’s ‘duty’.
Also: consider these questions in the context of the news item at:
http://edition.cnn.com/2017/07/20/us/florida-teens-drowning-man/index.html

3. What is the basis of a duty to act or not to act in a certain way?

4. What kind of remedies are or should be available for a tort?

5. Should tort remedies be different from remedies available for breach of contract or
for the commission of a crime.

6. Can the same action or omission amount to both a tort and a crime? If so, how
should the action or omission be remedied?

7. Should the remedies for tort or the remedies for crime prevail where the same action
or omission amounts to both a tort and a crime?

A. General Introduction

Tort law is concerned with an action or omission by one party which affects a right or
interest of another party and which, if unjustified, may lead to the award of a civil
remedy to the person whose right or interest is affected. In this sense, tort law protects
certain rights and interests of persons in the society.

The aim of the law of tort is to provide compensation (or other remedy in some
circumstances, e.g. injunction) to the party whose interest or right is deemed to be
unjustly affected by the action or omission of another. The aim is not so much to punish
the infringing party but more to compensate the aggrieved party.

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An important element to note quite early on is that the protection of a party’s interest
or right is not dependent on the existence of any agreement between that party and
the other party who might have infringed that right or interest.

B. Tort Law and the Law of Obligations

The law of tort is one element of a wider area of law referred to as the law of
obligations. The other elements of the law of obligations are the law of contract and
the law relating to restitution and unjust enrichment.

The law of obligations relates to rights and responsibilities arising in a civil or private
context. It relates to responsibilities for the breach of which only civil remedies are
available generally to compensate the party whose right or interest has been affected.

The party whose interest the law of obligations seeks to protect is normally a private
party such as an individual or natural person or a private legal entity such as a
company.

As such, the law of obligations is distinguished from criminal law which is regarded as
concerned with actions (and omissions) done against the state and which is generally
punished by penal/criminal sanctions! Unlike the law of tort, the aim of criminal law is
generally to punish an offender.

As an element of the law of obligations, the law of contract is relatively easy to

conceptualise: it is based on the idea that a legal agreement which is entered into
voluntarily should be observed and, thus, the law is ready to assist in enforcing such
an agreement or providing a remedy when it is breached. According to a well-known
Latin maxim: pacta sunt servanda i.e. ‘agreements must be kept’.

The law of restitution is predicated on the idea that one person should not enjoy unjust
enrichment at the expense of another. The aim is to prevent one party from retaining
a gain or benefit that he has received unjustly at the expense of another: thus, under
restitution the first party can be required to restore or return the gain or benefit to the
disadvantaged party.

In view of the variety of the actions and omissions that have been held by the courts
to be torts and the different circumstances relating to them, it is not so straightforward
to establish the conceptual basis for tort completely and conclusively.

C. Tort: ‘Right’ or ‘Wrong’

An important question which arises in the law of tort is that of what is the justification
for classifying an act or omission as a tort? It is sometimes said that a tort is a ‘legal
wrong’ for which the law provides a remedy. That raises the question of what makes
the action or omission a ‘legal wrong’.

One way of approaching the issue is to say that the action or omission is classified as
a legal wrong because it affects a legal right or interest of another person without

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justification. That in turn raises the questions: which rights or interests of other persons
are protected by tort; why should those right or interests be protected; and, why should
the law provide a remedy if those rights or interests are affected by the action or
omission of another person?

The situation is further complicated by the fact that actions and omissions that have
been held to amount to a tort are very wide ranging. As noted by Horsey & Rackley, it
is not so clear ‘the extent to which the various individual torts – and so the law of torts
as a whole – share common features, principles and justifications.’ (Tort Law, 5th ed.,
p2)

D. The Province of Tort

Despite the concern that has been expressed about the difficulty of finding sufficiently
common features and principles underlying the wide variety of actions and omissions
that have been held to be torts, it is nevertheless fair to make some general
observations.

In general, the law of tort protects an interest through the creation or recognition of a
right vested in one party and the creation or recognition of a duty or responsibility on
the part of another party or other parties.

Also, in general, the law of tort supports the created or recognised right by awarding
compensation against the party who infringed the right in favour of the party whose
right is infringed or by making an order (injunction) that one party should not infringe
another party’s right or should not continue to infringe another party’s right

E. Terminology

To start with, the law of tort seeks to protect the right or interest of a person on an
underlying assumption that the person has suffered a ‘loss’ or ‘harm’ or ‘damage’, as
a result of another person’s action or omission affecting that right or interest.

In some cases, it is easy to identify the loss or harm or damage that the ‘victim’ of a
tort has suffered or is likely to suffer. Note that when the victim makes a claim for a
remedy, he is called a ‘claimant’, while the person against whom the claim is made is
called a ‘defendant’.

Examples of clear loss or harm or damage arising from a tort include:

 Physical injury (or even death) e.g. a driver crashes into a cyclist and the cyclist
breaks his leg (or even dies)
 Psychiatric injury: e.g. a person becomes depressed after being exposed to
emotional trauma
 Financial loss e.g. after a good reference about a borrower from a bank, a
person lends money to the borrower who turns out to be a fraud and who does
not repay the loan

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  Damage to ‘personal property’: one student picks up another’s phone and
accidentally damages it by dropping it
 Damage to ‘real property’ (land): water leaks from one property and floods
another person’s property
 Damage to reputation: one person spreads false rumours that a law student is
a thief

On the other hand, it is not so clear to identify the loss, harm or damage arising from
some actions or omissions that have been classified to be torts. For example, merely
walking across another person’s land without permission is classified as a tort even
though no damage is done to the land.

A tort which can be established or committed without proving actual loss, harm or
damage is said to be ‘actionable per se’ i.e. merely doing the action that the law
protects against is itself enough to entitle the claimant to a remedy – without having to
prove actual loss. {The question of how much compensation might be due is a
separate, if related, question.}

Next, care should be taken about the use of the word ‘wrong’ in the law of tort. In
general, what is meant is a ‘legal wrong’ i.e. an action or omission that the law
classifies as a wrong in law. It is to be distinguished for example from a ‘moral wrong’.
For example, a person who sees another drowning and does nothing to assist may
have committed a ‘moral wrong’ yet they may not be regarded as having committed a
‘legal wrong’!

One more word which we should also be mindful about is the word ‘damage’ (singular,
though it can be pluralised). It should be distinguished from the technical legal word
‘damages’ (always plural)!

The word ‘damage’ (singular, though possibly plural on occasion) is used to refer to
the ‘injury’ or loss or harm that a victim of tort suffers. On the other hand, in common
law systems, the word ‘damages’ (always plural) is used to refer to money
compensation awarded by a court to a person who wins in a lawsuit; the lawsuit may
not even be for tort but, for example, for a breach of contract.

F. Policy Considerations

Generally, determining whether one party is liable to another in tort primarily involves
examining legal rules. Nevertheless, there are usually elements of policy
considerations underlying the legal rules. Policy considerations affect the
determination of the kind of interests protected by the law of tort, e.g.

 personal security and safety

 interests in personal and real property
 economic interests
 reputation and privacy

Policy considerations also affect the determination of whether liability for a particular
tort should be based on ‘fault’ or on ‘strict liability’. For most torts, the defendant will

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normally only be held liable if he was in some way ‘at fault’. This means that the
defendant must have deliberately acted (or failed to act) in a wrongful manner or that
the defendant did not behave in a manner that was to be reasonably expected to
prevent the damage that occurred.

In the case of a few exceptional torts, and usually for policy reasons, the defendant is
held liable as long as the damage which the law protects against occurred – even if
the defendant had done all that they could to prevent it. Such torts are called ‘strict
liability’ torts.

Policy considerations may also affect the approach that the courts and the law maker
(‘legislature’) may take in respect of tort claims made against public bodies. In general,
public bodies exist for purposes of the public good and may provide services to the
public at subsidised rates.

On the other hand, public bodies should not necessarily be exempted from a
requirement to observe a reasonable standard of performance when carrying out their
functions. Nevertheless, when damages are awarded against a public body for failure
to keep to the expected standard of performance, the result is that there will likely be
less money for the public body to carry out its functions.

It is thus understandable that both the legislature particularly and, possibly to a lesser
extent, the courts might bear in mind the balancing of these considerations in the
approaches to setting the liability of (and damages due from) public bodies in cases
where they do not meet the expected standard of performance.

G. The Role of Insurance

In many tort cases, compensation payment awarded against a defendant will actually
be paid by their insurance company (or ‘insurers’).

Generally, the fact that there may be an insurance company behind either or both of
the claimant and the defendant is to be ignored by the courts when determining tort
liability (or amount of compensation).

Yet, the fact that, in some cases, the compensation due from the liable defendant will
often be paid by an insurance company may affect where the courts will set the
standard of care; it has the potential to encourage the courts to set the relevant
standard of care at a high level.

In tort cases arising from circumstances where the defendant is compulsorily required
to have insurance it raises the question whether the basis of liability should be on ‘fault’
or ‘strict liability’; consider for example where a car driver has caused personal injury
to another road user.

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H. Classification

One way of classifying different types of tort is tied to the mindset that is required of
the defendant before he can be held liable. Some torts require that the defendant must
have intended some consequences from his action; others do not necessarily require
that the defendant intends a consequence but are based on the consideration that the
defendant is required to meet a certain expected standard of behaviour; a few torts
are based on the idea that a defendant must be held liable for a particular result or
eventuality – no matter that the defendant did not intend the result or eventuality and
no matter that the defendant did his best to prevent the eventuality.

1. Intentional Torts: this type of tort requires that the defendant must have intended to
do the action which the law protects against; in many cases, the defendant does not
even need to intend the consequence/s of the action as what is required is the intent
to carry out the act. On the other hand, there are circumstances when whether the
defendant intends a particular consequence is relevant; this is sometimes referred to
as ‘subjective recklessness’. We shall be exploring these issues further when we come
to study specific examples of intentional torts.

2. Negligence: the tort of negligence is based on the idea that in particular

circumstances, especially where one person’s action may have an effect on another,
the person is expected to meet a certain standard of action or behaviour. It is the failure
to meet the required standard, rather than an intention to cause a particular result, that
forms the basis of the tort of negligence. In this module, we shall have an introductory
session on the tort of negligence and we shall be studying it in detail in the second
semester module Law of Torts (2).

3. Strict Liability Torts: with this type of tort, the defendant can be held liable for the
occurrence of a particular event or consequence – no matter that (a) he did not intend
the event or consequence and/or (b) that he did his best to prevent the event or
consequence from occurring. There are only a few examples of strict liability torts and,
evidently, there will usually be significant policy considerations behind the treatment
of a tort as being of strict liability.