Tort Law

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NYANDARUA INSTITUTE OF SCIENCE AND Elements of tort

TECHNOLOGY
To constitute a tort three things must concur:
ELECTRICAL DEPARTMENT (a) There must be a wrongful act by the defendant.
(b) Legal damage to the plaintiff
DIPLOMA IN ELECTRICAL ENGINEERING (c) The wrongful act must be of such a nature as to give rise to a legal
remedy in the form of an action for damages
MODULE III
Differences between contract and tort
UNIT: ESTIMATION, TENDERING AND ENGINEERING
SERVICES CONTRACTS
CONTRACT TORT
SUB MODULE UNIT: CONTRACTS
1. Duties are imposed by law
THE LAW OF TORT 1. In contract the duties are
e.g. we must not be
A Tort is an act which causes harm to determinate person, whether fixed by the parties
negligent of others
themselves
intentionally or not, not being a breach of a duty arising out of a
Necessities privity between 2. Privity is not needed in tort
personal relation or construct and which is either contrary to law or 2.
the parties i.e. only the parties to maintain an action in
an omission of a specific legal duty or a violation of an absolute right. to the contract can sue each tort
other.

A tort is a civil wrong independent of contract which is remedied by


3. The duty is owed to the
an award of unliquidated damages. Unliquidated damages are those 3. The duty is owed to definite
person or persons public at large
which court has the power to fix at its own discretion. Liquidated
damages on the other hand are fixed by the plaintiff. 4. Damages are always
4. Damages for breach may be
Every tort results from the breach of a certain duty which is liquidated or unliquidated i.e. fixed by
primarily fixed by law unlike a breach of contract where the duties unliquidated court
are fixed by the parties themselves.

Kiiru, DEE 13J Mod 3 (ETESC)


The distinction generally lies on the nature of the right infringed. Thus e.g. A taxi driver A who drives dangerously injuring passenger B and
if A damages B’s car through negligence or trespasses on B’s land, it is pedestrian C. B can sue for breach of contract and C can sue him in tort,
a tort. But if B agrees to sell his car to A for a certain price and then and the police can prosecute him for dangerous driving.
refuses to perform his obligation it is a breach contract. The same act A person who commits a tort is known as a tortfeasor. Where 2 or more
however may amount a tort and a breach of contract e.g. X employs a persons commit a tort, they are called Joint Tortfeasors.
private surgeon to operate on his wife and the surgeon fails to perform Malice in tort
his duty properly then X has a cause of action against the surgeon for Malice means ill-will or desire to cause damage to someone. In legal
breach of contractual duty of care and the tort of negligence. sense it means a wrongful act done purposely without having any lawful
excuse. Malice is an important element in determining the gravity of a
Distinction between tort and crime crime but it is not necessary to maintain an action in tort.
TORT CRIME In tort the intention or motive for an action is generally irrelevant. The
1. A tort is an infringement of civil rights 1. A crime is a breach of publiclaw
rights andisduties
of tort whichmore with the effect of an authorized conduct
concerned
Belonging to individuals considered as affect the whole community considered as a community.
than with the motive which prompted it. The general rule is that a bad
individuals.
2. The wrong-doers has to compensate the 2. intention
In crime he is punished by the state in will not necessarily
the interest of the render a lawful action unlawful and
society similarly an innocent intention is no defence to act which is a tort.
injured party

3. The action is brought by the aggrieved 3. The proceedings are Where


broughta personbyhas a legaltheright to do an act it is not possible to make
party to obtain compensation prosecutor in the name ofhisthe state and
exercises accused
of such is actionable by proving that the act was
a right
punished if found guilty.
inspired by ill-will.

Sometimes the same act may be actionable under criminal law and law Principles which determine liability in tort
of tort e.g. assault is both a crime and a tort. To determine whether the plaintiff has any remedy in cases of tort
Sometimes an act may amount to a tort, a breach of contract and a crime depends on the following principles: -

Kiiru, DEE 13J Mod 3 (ETESC)


(i) Harm Without Legal Injury (Damnum Sine Injuria) ii. Recklessness
This means there is substantial and actual loss but no legal right has An act is done recklessly when it is done without caring whatever its
been infringed. The law does not provide any remedy. Examples are consequences might be. It also constituters fault.
losses resulting from: Ordinary trade competition
iii. Negligence
(ii) Injuria Sine Damnum A person is at fault when he does wrongful act negligently where he
This refers to where a person suffers an infringement/violation of ought to have foreseen the consequences of his act and avoided it.
his legal right without any actual loss or damage sustained by him. In
such case it is not essential for the plaintiff to prove actual damage
suffered in order to obtain damages based on the maxim: ubi jus ibi CAPACITY OF PARTIES
remedium “where there is a right there is a remedy” Certain torts The general rule is that any person may sue or may be sued in tort.
are actionable “per se” i.e. without proof damage. e.g. assault,
trespass on land and libel The act itself is actionable regardless of (a) The Government
whether the plaintiff has suffered any damage as a result of it. The The government is liable in tort as if it were a private person of full age
court is obliged to award damages.
and capacity.
The government is liable:
(iii) The Fault Principle
a) In respect of torts committed by its agents or servants
Most torts are based on the fault principle. Under this principle it is b) In respect of any breach of those duties which a person owes
necessary to establish some fault on the part of the wrong doer before to his or servants or agents at common law by reason of being
he can be made liable in tort. A person is said to be at fault if he fails to their employer.
live up to some ideal standard of conduct set by law. Fault can be c) In respect of any breach of duties attaching at common law to
determined by relying of the following: the ownership, occupation protection or control of property.
i. Intention The government is also liable for statutory torts i.e. torts arising from
Where a person does a wrongful act desiring that its consequences breach of duty imposed by law. It is not however liable for anything
should follow he is said to have intended it and there is an amount of done or omitted to be done by any person while discharging any
fault in his part. responsibilities of judicial process or for acts committed by officers

Kiiru, DEE 13J Mod 3 (ETESC)


appointed and paid by local authorities or public corporations e.g. KM (d) Trade Unions
C, NCPB Trade UNIONS enjoy special protection . They have capacity to sue in
(b) Foreign Heads Of State (Sovereigns) And Diplomats tort but no action shall be brought against a trade union for torts
The head of foreign states, diplomats of foreign missions and certain committed by their members or officials acting in furtherance of a trade
other persons connected to them are not liable in local courts since dispute e.g. a strike the employer cannot sue for inducing breach of
they are immune from jurisdiction of local courts. contract.
The immunity also extends to the ambassadors family and staff but if However the members and officials of a trade union can be sued for
after expiry of his term in office he continues to stay in Kenya, he may torts committed in their personal capacity.
be sued for a cause of action arising during his period in office. The (e) Husbands And Married Women
diplomat may waive his immunity and submit to the jurisdiction of the A married woman is liable in tort and may sue or be sued in tort in the
local courts. This immunity does not extend to Kenyans employed by same way as though she was a femme sole(single woman)a married
the diplomatic missions. woman can sue her husband for the protection and security of her own
property. In Kenya a husband is still liable for his wife ’s torts.
(c) Corporations (f) Infants And Minors
A corporation can sue and be sued in its own name. It is liable for torts
As a general rule, infancy is not a defence is an action of tort. However
committed by its servants or agents, provided the servant committed
where malice, intention or negligence of the wrongdoer are the main
the tort in the course of doing an act within the scope and powers of
cause/ ingredients of the tort the age of the infant is relevant.
the corporation however if the servant commits a tort which is ultra
vires. (Beyond powers) then the corporation is not liable. (g) Liability Of Parents

The corporation can sue for any wrong affecting its property or business Generally a parent or guardian is not liable for torts committed by his
but cannot sue or be liable for wrongs of a personal nature e.g. battery, children unless he authorized the act or if the tort was occasioned by his
personal defamation. negligence e.g. where a father allows his child to remain in possession of

Kiiru, DEE 13J Mod 3 (ETESC)


a gun after receiving complaints of mischief caused by use of the gun. can reasonably foresee would be likely to injure your neighbor , where:

(h) Persons of Unsound Mind neighbors are persons who are so closely and directly affected by my
act that you ought to have them in contemplation as you direct your
A PUM is generally liable for his torts e.g. assault. But a P.U.M will not
be liable for a tort where intent is a necessary element and their mind to the acts or omissions which are called in question.
condition is such that they could not have formed such intent unless
the court is of the opinion that he was capable of forming such an
intention. The lunacy may be a defence in torts based on malice or DEFAMATION
specific intent.
The tort of defamation consists in the publication of a false statement
NEGLIGENCE regarding another person without lawful justification which tend to
Negligence is the omission to do something which a reasonable man, lower his reputation in the estimation of right thinking members of
guided upon those considerations which ordinarily regulate the society; or which causes him to be shunned or avoided or has a
conduct of human affairs, would do or doing something which a tendency to injure him in his office, profession or trade. Defamation
prudent and reasonable man would not do. may be committed either by way of speech, writing or its equivalent
Or: Ingredients of defamation
Where there is a duty to take care and where failure in that duty has In order to maintain an action for defamation it must be proved that
caused damage. the statement complained is
Elements of negligence 1. False statement
In order to maintain an action for negligence the plaintiff must prove; 2. Defamatory
(i) The defendant owed him a duty of care. 3. Referred to the plaintiff and
(ii) That there has been a breach of that duty and 4. Published.
(iii) That the plaintiff has suffered injury to his person or property. TRESPASS
Duty of care Trespass is unjustifiable interference with the plaintiff’s possession e.g
Duty of care is the duty of care to avoid acts or omissions which you land or unjustified entry independent of intention to trespass. An action

Kiiru, DEE 13J Mod 3 (ETESC)


for damages lies for a mere trespass even when the entry was through
mistake and no damage was done.

Kiiru, DEE 13J Mod 3 (ETESC)

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