THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE EDUCATION

SCHOOL OF LAW

LAW OF TORTS (LPU 2930) - ASSIGNMENT 1

STUDENT: Mr. Mulife MULELE

ID No.: 22101625

CELL: +260 964 716 072

EMAIL: [email protected]

COURSE: LAW OF TORT

COURSE CODE: LPU 2930

YEAR OF STUDY: 2nd YEAR

LECTURER: Mr. Kafula MWICHE

CELL: +260 974 694586

EMAIL: [email protected]

TASK: ASSIGNMENT 1

DATE DUE: FRIDAY, 21ST APRIL 2023

DECLARATION: I hereby declare that this paper represents my work.

© 2023
1 INTRODUCTION
The word ‘tort’, means wrong In French and has its origins in the Latin word tortus meaning
‘twisted’. However, the word ‘tort’ in English, means a legal wrong for which the law
provides a remedy.1

Winfield defined the law of Tort as follows:

“Tortious liability arises from the breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is redressible by an action for unliquidated
damages”.2

In order to understand the definition of the law of tort above, a distinction from other
branches of the law is required, as this will aid in establishing how the aims of the law of
tort differ from the aims of other areas of law such as contract law or criminal law.3

2 TORT LAW AND CONTRACT

According to Harpwood, the distinction between the nature and aims of the law of tort in
comparison to those of the law of contract is often discussed in terms of the duties fixed by
laws and the people to whom the duties are owed.4 Therefore, this discussion will look at
the definition of the law of tort and the law of contract to establish the distinction between
the law of tort and the law of contract.

Mvunga and Ngambi define the law of torts as follows:

“Tort (from Latin Torquere, to twist, twisted) is a private or civil wrong or injury. It is a
wrong independent of a contract. A violation of a duty imposed by general law or otherwise
upon all persons occupying the relation to each other which is involved in a given
transaction”.5

1
Vivienne Harpwood, Principles of Tort Law (4th edn, Cavendish Publishing Limited 2000) 1
2
Edwin Peel and James Gouldkamp, Winfield and Jolowicz on Tort (19th edn, Sweet & Maxwell 2014) 1 -003
3
Harpwood (n 1)
4
ibid 3
5
Mphanza P. Mvunga, Sangwani Patrick Ngambi, Mvunga and Ngambi on Torts (1st edn, UNZA Press for The
School of Law 2011) 1

1
 Sangwani Patrick Ngambi and Chanda Chungu define a contract as follows, “A contract is
an agreement which is legally binding on the parties”.6

2.1 Overlap between tort and Contract

There are in instances when there is an overlap in the law of contract and the law of tort.
This may occur in cases where a claim of damages arising from a defective product may
involve a complicated combination of issues under the Sales of Goods Act 1979, the law of
misrepresentation and collateral warranty, the tort of negligence, The Consumer Protection
Act 1987 and a claim of contractual protection among the retailer, intermediary and
manufacturer.7

A defendant may be held liable on the same facts in contract to one person and in tort to
another person, and there may be instances when there is concurrent contractual and
tortious liability to the same claimant, although damages may not be recovered twice.8

2.2 Source of the duty

From Winfield’s definition of tortious liability given in the preceding chapters, tortious
duties exist by virtue of the law itself and are not defendant upon the agreement or consent
of the persons subjected to them.9 The preceding sentence explains the reason why
Winfield was of the view that tortious liability could be distinguished from liability arising
from contract because the latter does not exist independently of the parties, or at least of
the dependents agreement or consent.10

2.3 Content of the duty

The law of tort can again be distinguished from the law of contract, when it is considered
that, in tort the content of contractual duties is fixed by the law whereas the content of
contractual duties is fixed by the law itself.11

6
Sangwani Patrick N’gambi and Chanda Chungu, Contract law in Zambia (2nd edn, Juta and Company Pty Ltd
2021) 9
7
Edwin Peel and James Gouldkamp, Winfield and Jolowicz on Tort (19th edn, Sweet & Maxwell 2014) 1 -005
8
Ibid 7
9
Ibid 7
10
Ibid 7
11
Edwin Peel and James Gouldkamp, Winfield and Jolowicz on Tort (19th edn, Sweet & Maxwell 2014) 1 -006

2
2.4 Aims of contract and tort
According to Harpwood, the main aim of the law of tort is to compensate for the harm
suffered because of the breach of duty fixed by law, whereas the main aim in the law of
contract is to support and enforce contractual promises and to deter breaches of the
contract. 12According to Harpwood, the distinction between the aim in a contract and that
in tort are less, as situations could give rise to an action in both contracts and (if there is a
contact) and in tort, e.g., in the case of professional negligence.13

The outcome when one sues are little affected by the branch of law chosen as is illustrated
in the case of Johnstone v Bloomsbury.14 The facts of the case were that Dr Johnstone, a
junior doctor was required under his employment to work 40 basic hours and to be
available on call for 48 hours per week. He fell ill after working for 88 hours for several
weeks. He brought an action against his employers seeking a declaration that he should not
have to work more than 72 hours per week, and damages in negligence for an alleged
failure to take reasonable care of his safety in the workplace. The defendant appealed
against the decision refusing to strike out this action. The issue was whether the defendant
is under the common law duty of care to take reasonable steps for their employees in the
workplace per Wilson and Clyde Coal Co Ltd v English15. The appeal was dismissed.

3 CONCURRENT LIABILITY IN TORT AND CONTRACT

3.1 Three-party situations
The case of Donoghue v Stevenson showed contractual and tortious liabilities could
coexist on the same facts.16

4 TORT LAW AND CRIMINAL LAW

A tort is a civil wrong against a third party or against an individual or natural person as
opposed to a crime, which is wrong committed against the state. The distinguishing factor

12
Vivienne Harpwood, Principles of Tort Law (4th edn, Cavendish Publishing Limited 2000) 2
13
Ibid
14
Johnstone v Bloomsbury Health Authority [1992] QB 333
15
Wilsons & Clyde Coal Co Ltd v English [1938] AC 57
16
Donoghue v Stevenson [1932] A.C. 562

3
 between criminal offences and torts is that the former is tried in criminal courts while the
latter is tried in civil courts.17

5 CONCLUSION
The law of tort is based on common law and was developed by judges in order to respond to
changes in social and economic changes. It has been shown that it is possible to distinguish
the law of tort from both purely by their definitions.

6 BIBLIOGRAPHY
6.1 Statutes
Consumer protection Act 1987

Donoghue v Stevenson [1932] A.C. 562

Sales of Goods Act 1979

6.2 Cases
Johnstone v Bloomsbury Health Authority [1992] QB 333

Wilsons & Clyde Coal Co Ltd v English [1938] AC 57

6.3 Books
Harpwood V, Principles of Tort Law (4th edn, Cavendish Publishing Limited 2000)

Mphanza P. Mvunga, Sangwani Patrick Ngambi, Mvunga and Ngambi on Torts (1st edn,
UNZA Press for The School of Law 2011)

Peel W and J Gouldkamp, Winfield and Jolowicz on Tort (19th edn, Sweet & Maxwell
2014)

Sangwani Patrick N’gambi and Chanda Chungu, Contract law in Zambia (2nd edn, Juta
and Company Pty Ltd 2021)

17
Edwin Peel and James Gouldkamp, Winfield and Jolowicz on Tort (19th edn, Sweet & Maxwell 2014) 1 -015

4
6.4 Journal Articles
6.5 Websites