LAW OF TORT I

Lecture 1
Overview of the Law of Tort
 What is the law of tort ?
 Stanford Dictionary defines tort as “any
private or civil wrong by act or omission
for which a civil suit can be brought, but
not including breach of contract.”
 Gilbert Kodilinye in Tort, Text, Cases
& Materials defines a tort broadly as “a
civil wrong involving breach of a duty fixed
by law, such duty being owed to persons
generally and its breach being redressed
primarily by an action for damages”
Definition of tort continued
 Peter Kaye in An Explanatory Guide to The
English Law of Torts defines the law of torts as
“ the imposition of non-criminal legal
responsibility upon the person by the state, non-
dependent upon parties contractual agreement.
 According to Winfield & Jolowicz on Tort, 14th
Edition by W.V.H. Rogers - “tortious liability
arises from the breach of a duty primarily fixed
by law; this duty is towards persons generally
and its breach is redressable by an action for
unliquidated damages.”
 Objectives of the Law of Tort
 The law of tort can be said to have the following main
objectives
 Compensation of persons who have been
harmed/injured by the tortious acts of others
 Deterring others from committing tortious acts and
thereby preventing the recurrence of tortious acts
 Aid the administration of the criminal law –
prosecutions for a felony must precede an action in
tort on the same facts –Rule in Smith v. Selwyn.
 The punishment of persons who commit tortious
liability as in some instances such as in the tort of
false imprisonment and malicious prosecution the
court has the power to award exemplary damages
which has a punitive aim.
 What Interests Does the Law of
Tort Seek to Protect?
 The interests which the law of tort seek to
protect are outlined below – (See Street on Torts,
9th Edition by Margaret Brazier, Chapter 1)
 Intentional invasion of personal and
proprietary interests.
 Interests in economic relations , business
and trading interests
 Interests in intellectual property
 Negligent interference with personal,
proprietary and economic interests
 Protection of reputation
 Protection from malicious abuse of the
judicial process.
 INTENTIONAL INVASION OF
PERSONAL AND PROPRIETARY
INTEREST
 The Law of Tort aims to protect the
person from:
 Deliberately inflicted physical harm and
restriction on freedom of movement. Torts
which have this specific aim include the tort
of trespass to person, assault, battery
and false imprisonment. (Intentional
invasion of personal interests)
 Deliberate interference with land. Law
recognises each person’s right to non-
interference with his land and goods- Tort of
trespass to goods, trespass to land.
 Interests in Economic Relations,
Business and Trading Interests

 Torts which seek to protect economic

relations, business and trading
interests include the tort of deceit,
passing off, inducement of breach
of contract, conspiracy and
intimidation
Interests in Intellectual
Property
 The tort of breach of confidence
protects a patient’s right to
confidentiality from his doctor as much
as a multinational company’s right to
protection of their trade secrets.
 Negligent interference with
Personal, proprietary and
Economic Interests
 The above deals with careless or
reckless intereference with personal ,
properietary interests as opposed to
deliberate interference.
 This includes torts such as
negligence, occupiers liability etc
Protection of personal & proprietary interests
against conduct which is neither
intentional or negligent
 The torts of nuisance and the rule in
Rylands v. Fletcher (1866) L.R. 1Ex.
265 reflects this interest
 Strict liability torts also reflect the
protection of the above interests.
 Strict liability refers to torts where the
defendant is liable even though the
damage to the plaintiff occurred without
intention or negligence on the
Defendant’s part. Examples of strict
liability – liability for dangerous animals
and the rule in Rylands v. Fletcher.
Reputation
 The law of torts seeks to protect the
individuals interest in their reputation
via the Defamation
 Due Process – Malicious Abuse
of Judicial Process.

 The law of tort recognises the

individual’s right to be protected from
malicious abuse of judicial process.
This is achieved through the tort of
malicious prosecution and false
imprisonment.
Types of Torts
 Negligence
 Occupiers liability
 Strict liability torts - liability for animals, Rule in Rylands
v. Fletcher
 trespass against the person
 assault and battery
 Economic Torts ie intimidation, conspiracy, or inducement
of breach of contract
 Torts which aim to protect interests in land ie – The torts of
trespass to land and nuisance
 Torts which aim to protect reputation by striking a
balance between the public’s interest in free speech and
freedom to criticize on the one hand and the individual
citizen’s desire for privacy on the other hand- the tort of
defamation, libel and slander
 Tort vs. Crime and
contract
 Torts can be distinguished from crime
and contract using the following
criteria:
 It’s objective/purpose/aim
 The source of the duties/rights of the parties
to legal proceedings
 The nature of the legal proceedings for
determining liability
 The remedies/ sanctions available in the
legal proceedings
 The standard of proof
Tort vs. Crime
 TORT  CRIME
  Aim – to protect the interest of the
Aim – primary aim is to compensate
public at large by punishing those found
persons harmed by the wrongful
guilty of crimes
conduct of others
 Nature of Proceedings – Criminal
 Nature of proceedings – civil prosecution instituted by the state
suit is instituted by the party for the trial of the accused. The
wronged for compensation for the Crown/State has an interest in
damages suffered as a result of prosecuting all criminal offenses.
the tort. The Crown does not have this
 Remedy /Action Taken By Court - interest in torts unless the tort
Monetary damages is the usual was committed against it.
remedy for a tort. Another remedy  Remedy / Action Taken By Court –
in injunctive relief to prevent a If the accused is convicted the
threatened wrong or continuation court usually imposes a term of
f an existing state of affairs imprisonment and or a fine.
amounting to a tort.  Standard of Proof – To succeed in a
 Standard of Proof – to succeed in criminal trial the prosecution must
civil proceedings in tort the prove its case “Beyond a
Claimant must prove his case “on Reasonable Doubt”
a balance of probabilities “
TORT VS CONTRACT
 TORT  CONTRACT
  Aim – primary aim is to compensate
Aim – primary aim is to compensate
persons harmed by the wrongful through the award of damages
conduct of others. Aim of the award however the aim of the damages
of damages is to put the Claimant in here is different. Aim of damages
the position he would have been in here is to put the Claimant in the
had the tort not been committed. The position he would have been in had
aim of tort is to protect the status the contract been performed. The
quo . aim is to fulfil the Plaintiff’s
 Nature of legal proceedings – civil expectation of benefit from the
suit is instituted by the party contract .
 Nature of Proceedings - Civil suit is
wronged for compensation for the
damages suffered as a result of the instituted by the innocent party for
tort. compensation
  Remedy /Action Taken By Court –
Remedy /Action Taken By Court -
Monetary damages is the usual remedy not limited to damages but
remedy for a tort. In certain cases includes specific performance,
injunctive releif. prohibitory and mandatory
 Standard of Proof – to succeed in civil injunction, declarations, rescission or
proceedings in tort the Claimant must rectification.
prove his case “on a balance of  Standard of Proof – On a balance of
probabilities “ probabilities
TORT vs. CONTRACT
 TORT  CONTRACT
 Source of Duties/Rights of  Source of Duties/Rights of Parties
Parties – duties of the parties are – duties and rights of the parties are
primarily fixed by law namely common fixed by the parties to the contract
law/case law and legislation ie the themselves . The duty in contract is
Occupiers Liability Act, The Nuisance Act said to be “in personam” meaning
etc . The duty in tort is said to be “in owed to a specific person or persons.
rem” meaning it is owed to persons  Note however there are some
generally.

exceptions where the law imposes
Note however that some duties in tort
terms into the contract ie landlord and
can be varied by agreement for example
tenant relationship- Rent Restriction
the duties owed by an occupier of
premises to his visitors. Liability can also Act ; consumer protection and
be excluded under by consent – under consumer credit - Sale of Goods Act
the doctrine of “volenti non fit injuria”. and Hire Purchase Act.
  As a general rule only parties to the
Parties need not be in a legal relationship
at the time the tort is committed. No contract may sue upon it to enforce
legal relationship in the sense of a their rights and the obligations of
contractual relationship need exist for the other parties to the contract – party
innocent party to seek compensation bringing suit must generally have
privity of contract.
 OVERLAPPING OF TORT
LAW AND CRIMINAL LAW
 Tort shares with crime the feature of state imposition of
liability.
 Although there are distinctions between tort law and
criminal law some torts particularly trespass have
strong historical connections with criminal law.
 Some torts are also crimes/offences- for example
assault, battery, false imprisonment.
 In addition some conduct can be both criminal and
tortious for example A steals B’s bicycle. A is guilty of
the crime of theft/larceny as well as the tort of
conversion. If A wilfully damages the goods he will be
guilty of the tort of trespass to chattels as well as the
offence/crime of malicious destruction of property.
 See the Rule in Smith v. Selwyn[1914] 3 K.B. 98
 OVERLAPPING OF TORT
AND CONTRACT
 Note that tort shares with contract the
element of compensation as a remedy.
 Sometimes a wrongful act may be both
a tort and a breach of contract for
example if A has contracted to
transport B’s goods and due to A’s
negligence the goods are lost or
damaged A will be liable to B for
breach of the contract of carriage and
for the tort of negligence.
 BASIC CONCEPTS OF
TORT
 Damnum Sine Injuria - “damage
without legal injury”. Cannot sue to recover
damages in tort unless the damage amounts to a
legal injury. If the Defendant’s act is in itself
lawful , cannot sue to recover damages caused
by same however great. Need a cause of action
in order to sue for damages.
 Injuria Sine Damno – “legal injury
without damage”. In order to succeed in tort the
Plaintiff must not only establish a cause of
action- a legal injury but must also prove that he
has suffered damage.
BASIC CONCEPTS OF TORT cont’d

 Intention and negligence – For most

torts it must be shown that the defendant’s
invasion of the Plaintiff’s rights was either
intentional or negligent with the exception of
strict liability torts.
 Negligence differs from intention in that intention
denotes a desire for the consequences of the act,
whereas if the Defendant is negligent he does
not desire the consequences of his act but is
indifferent or careless as to the consequences.
 Negligence in the law of tort has two meanings ;
 The independent tort of negligence
 A mode of committing certain torts such as trespass or
nuisance
Joint and Several Tortfeasors
 See Street on Torts, 9th Edition, by
Margaret Brazier - Chapter 31 pages 575
- 579
 There are three broad categories of
circumstances where one person may
suffer damage as a result of torts
committed by two or more defendants:
 Joint tortfeasors
 Several concurrent tortfeasors
 Several tortfeasors causing different damage
Joint

Tortfeasors
In this category are the following:
› Employer and employee in those cases where
the employee is vicariously liable for the tort
of the employee.
› Where one person instigates another to
commit a tort . Ash v. Hutchinson & Co.
Limited [1936] 1 All ER 1496 CA
› Where there is a breach of duty imposed
jointly on two or more persons
› Where persons take “concerted action to a
common end” and in the course of executing
that joint purpose, any of them commits a
tort , all of them are joint tortfeasors. See
Brooke v. Bool [1928] 2 KB 578; Scarsbrook
v. Mason [961] 3 All ER 767
Several Concurrent
Tortfeasors
 Several or separate or independent
tortfeasors are of two kinds either:
 Those whose tortious acts combine to
produce the same damage ( several
concurrent tortfeasors) or
 Those whose acts cause different damage to
the same plaintiff.(Several tortfeasors)
Several Concurrent
Tortfeasors
 See Drinkwater v. Kimber [1952] 2
QB 281; [1952] 1 All ER 701- where a
passenger in a motor car was injured in a
collision between that car and another. Morris LJ
said that the two drivers both of whom were
negligent were seperate tortfeasors whose
concurrent acts caused injury to the female
plaintiff.
 Thompson v. London County
Council [1899] 1 QB 840 – The plaintiff’s
house was damaged when its foundation subsided. This
was caused by negligent excavation by D1 and D2 a water
company negligently allowing water to escape from their
main.
 Several Tortfeasors Causing
Different Damage
 Where two or more persons not
acting in concert cause different
damage to the same plaintiff, they are
treated differently in law from joint
tortfeasors and several concurrent
tortfeasors.
 In clear cases the two defendants
inflict quite separate harm on the
plaintiff. For example D1 breaks P’s
arm and D2 fractures his skull – D1 is
answerable for the damage to the arm
Several Tortfeasors Causing
Different Damage
 Note that the court will not hold each
defendant liable for the entire damage
but will endeavour to ascertain the
respective contributions to the harm
made by each defendant and failing
that they will appportion the loss
equally between them.
 Importance of the Distinction Between Joint
and Several Concurrent Tortfeasors and
other Several Tortfeasors.

 Concurrent tortfeasors whether joint or

several are each answerable in full for the
whole damage caused to the plaintiff;
other several tortfeasors are only
answerable for that damage which each
has caused.
 Satisfaction by any concurrent tortfeasor
discharges the liability of all the others
whereas satisfaction by a several non-
concurrent one does not.
 Importance of the Distinction Between Joint and
Several Concurrent Tortfeasors and other Several
.
Tortfeasors

 There is in general a right to

contribution in the case of concurrent
tortfeasors, but not in respect of other
tortfeasors.
 A release under seal or a release by
way of accord and satisfaction in
respect of one joint tortfeasor
discharges the others, but does not
have this effect in the case of several
concurrent tortfeasors.
 RECEPTION OF THE LAW
OF TORT IN JAMAICA
 See Gilbert Kodilinye –Commonwealth
Caribbean Tort Text Cases and
Materials.
 Jamaica was acquired by conquest not
by settlement.
 By the Interpretation Act sec. 41 all
laws and statutes of England prior to
1727 were received as part of the laws
of Jamaica.
Basic Defences in Tort
 This will be dealt with in detail later in
the course and in Tort II. We will look at
the general defences briefly in passing
here:
 Volenti Non Fit Injuria (Consent) –
Voluntary Assumption of risks
 Inevitable Accident
 Necessity
 Contributory Negligence
 Exclusion of Liability in Tort
 Limitation of Actions