Law of tort

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Tort is a civil wrong which according to Sir F. Pollock defined as; an act which causes harm to a determinate person whether intentionally or not, not being a breach of a duty arising out of a person relationship or contract and which is either contrary to the law, or an omission of a specific legal duty, or violation of an absolute right.
1. Prof. P H Winfield, Tortious Liability arises from 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.
2. Sir John Salmond defined Tort as a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.

From the definition we can conclude the following characteristics about tort
1. Tort is a private wrong, which infringes the legal right of an individual or specific group of individuals.
2. The person, who commits tort is called “tort-feasor” or “Wrong doer”
3. Tort litigation is compoundable i.e. the plaintiff can withdraw the suit filed by him.
4. Tort is a specie of civil wrong.
5. Tort is other than a breach of contract
6. The remedy in tort is unliquidated damages or other equitable relief to the injured.

Note; Liquidated damages should be distinguished from unliquidated damages.

Liquidated damages- this is a specified amount of compensation. The law is usually clear on what the liable party pays or the parties themselves have already agreed to the compensation

Unliquidated damages- this kind of compensation is unspecified and the court will rely on the nature of the case to determine it.


This liability arises once there is a breach of duty which is primarily fixed by the law. Generally the plaintiff has to prove that he suffered harm and there was violation of his legal rights. Some actions, however, are actionable per se, i.e, without proof of injury, e.g. trespass to land.

The liability and remedy of a party in torts will depend on the following general principles
1. Damnum sine injuria (harm without legal injury)

This basically means the causing of damage without the violation of a legal right. Such a case is not a valid claim in the court of law. The fact that the man is injured by another man’s act does not by itself constitute a cause of action; this may be even if the injury-causing act is intentional or deliberate. A violation of the legal right is required in order for a valid cause of legal action to exist.

In mogul steamship company Gregory gow and company , where a number of steamship companies conspired and drove another tea-carrier company out of business by offering lesser rates. Even though the plaintiff was financially injured, the House of Lords ruled that the other companies were entitled to indulge in such competitive practices and therefore there was no cause of action.

2. injuria sine dumno

This refers to a situation where one suffers a violation of his legal rights without actual injury or damage, e.g. trespass to land
In such instance the person is entitled to remedy.

In, Ashbay Vs. White, the defendant, a returning officer at a voting booth, wrongfully refused to register a duly tendered vote of the plaintiff, who was a qualified voter. The candidate for whom the vote was sought to be tendered was elected. So no loss was suffered by the plaintiff for rejection of his vote.
The Court held that violation of the plaintiff’s right was an injury to him for which he must have a remedy without proof of actual damage.

Tortious liability can also be determined on the basis of the fault principles. In this case it is necessary to establish some fault on the part of the wrongdoer before he can be made liable. Fault principle is determined in three ways;

o Intention- where one does a wrongful act intending the consequences
o Recklessness- doing an act without regarding the consequences
o Negligence- this is doing something that a reasonable person would not do, or omitting an action that a reasonable person would do.


If one sues the other claiming that the other person has violated his rights and in so doing has committed a tort, then certain defenses are available to the defendant. The extent to which they apply against different torts, may, however, differ. Some of the defenses which can be used in torts are:
1. Volenti non Fit Injuria
2. Inevitable Accident
3. Act of God
4. Self-defence
5. Mistake.
6. Necessity
7. Statutory Authority
1. Volenti Non Fit Injuria

This refers to „voluntary taking of a risk’. It’s when a person chooses to be in the situation that causes the injury. For example, suppose you are a spectator at a cricket match , the batsman hits a six, and the ball lands on your head, then you cannot claim for compensation either from the stadium authorities or the batsman because when you took a seat in the stadium, you accepted the risks while sitting in the stadium. Therefore if the defendant can prove that the plaintiff voluntarily put himself in that situation, he can escape liability.

The most important thing to remember is that the action must be voluntary i.e. with the informed consent of the relevant person.
There are two things which should be established in order to use this defense.

a) That the plaintiff knew or could have expected the risks involved in such a situation.
b) That the person agreed by a statement or conduct, to suffer the consequence of the risk without force or compulsion or threat.

Khimji v. Tanga Mombasa Transport Co. Ltd. (1962).
The plaintiffs were the personal representatives of a deceased who met his death while traveling
as a passenger in the defendant’s bus. The bus reached a place where the road was flooded and it
was risky to cross. The driver was reluctant to continue the journey but some of the passengers,
including the deceased, insisted that the journey should be continued. The driver eventually
yielded and continued with some of the passenger, including the deceased. The bus got drowned
together with all those aboard it. The deceased’s dead body was found the following day.
Held: The plaintiffs’ action against the defendants could not be maintained because the deceased knew the risk involved and assumed it voluntarily and so the defence of volenti non fit injuria rightly applied.

Apart from instances like those ofthe above case, the defence of ‘volenti’ has been pleaded in a
number of situations, including the followings:

1. A passenger injured by the act of a driver whom he knew to be under the influence of drink at the material time.
2. A spectator at a game, match or competition injured by the act of the players of participants.
3. A patient injured by the act of his surgeon, where the patient has consented to the operation.

The viability of the defence depends on the circumstances of each case; otherwise the
consenting party does not, by his consent, necessarily give an open cheque to the other party to
act negligently, high-handedly or in any manner he pleases.

Haynes v. Harwood, (1935)
The defendant’s servant left a van and horses unattended in a crowded street. A boy threw a
stone at the horses and they bolted. This exposed a woman and some children nearby to some
grave danger. The plaintiff, a police constable, managed to stop both horses; but he did so at
great personal risk and in fact sustained severeinjuries. In an action brought against him, the
defendant pleaded volenti.
1. The doctrine of country assumption of risk did not apply because the plaintiff, in rescuing the persons in imminent danger, had acted under an emergency caused by the defendant’s wrongful act.
2. It was immaterial that the persons to be saved were strangers, and the defendants were liable.

2. Inevitable accident
When an injury is caused to a person by an event that could not be foreseen and avoided despite reasonable care on the part of the defendant, the defense of inevitable accident can be used. For instance, by „inevitable’ it is not meant that the accident was bound to happen, but rather, that the accident could not have been avoided despite reasonable care.
Stanley v. Powell, (1891)
The plaintiff was employed to carry cartridges for a shooting party. A member of the party fired at a pheasant but the bullet, after hitting a tree, rebounded into the plaintiff’s eye. The plaintiff sued.
Held: the defendant was not liable as the plaintiff’s injury resulted from an inevitable accident.

3. Act of God

This defense is similar to the defense of inevitable accident according to me. The only difference is that in the defense of Act of God the accident happens to occur because of unforeseen natural event. The requirements which are to be satisfied are
(a) The injury most be caused by the effect of natural forces
(b) The natural forces must be unforeseen, or the effects must be unavoidable.

So even if a natural event like a storm is taking place, if one can take precautions and avoid the damage, the defense cannot be used.

Nichols v. Marsland, (1876)
The defendant had a number of artificial lakes on his land. An unprecedented rain such as had never been witnessed in living memory caused the banks of the lakes toburst and the escaping water carried away four bridges belonging to the plaintiff’s bridges were swept by act of God and the defendant was not liable.

4. Self defense
If one injures someone, or something that belongs to someone else, while defending self or own property, then one can be excused if the force used to protect self was reasonable. For instance, if someone punches you on stomach and you shoot him that would be an excessive use of force which is not necessary for defending yourself.
The following must be satisfied in order to claim this defense:

a) The defendant must be under threat or under attack
b) The defense must be for self-defense and not for revenge
c) The response must be proportional to the attack or threat.

The principle for this is that the law will not hold you responsible for an action that you performed in order to save or protect yourself. If, however, it was not necessary to use force for protection, the law will not protect, and you can’t use this defense.
Cresswell v. Sirl, (1948)
A dog owned by plaintiff, C, attacked during the night some ewes lambs owned by S. The dog had just stopped worrying the sheep and started towards S, who shot it when it was 40 yards away. C sued for trespass to goods (dog). Held: S was justified in shooting the dog if
(i) it was actually attacking the sheep; or
(ii) if left the dog would renew the attack on them, and shooting was the only practicable and reasonable means of preventing revival. The onus on justifying the trespass lay on the defendant.

An occupier of property may also defend his property where his interest therein is wrongfully interfered with. Once again, reasonable force must be used in the defence of property. A trespasser, for instance, may be lawfully ejected using reasonable force. The use of force which is not called for in the circumstances entails legal liability on the part of the person purporting to defend his property.
5. Mistake

Mistake is not usually a defense in tort law. It’s not good enough to say that you didn’t know you were doing something wrong. This defense can be used in case of malicious prosecution. In malicious prosecution it must be shown that the prosecution was acting with malice.

6. Necessity

In necessity, you have to show that the act you did was necessary in the circumstances. For instance, if one enters someone’s private land in order to collect water from his well to put out a fire in his house, that the person was prompted by necessity and the defense could be used in tort claim and it could be used against trespass of property. The level of necessity should be very high. Basically the wrong done should be smaller in comparison to the importance of right done.

Cope v. Sharpe (1912)
The defendant committed certain acts of trespass on the plaintiff’s land in order to prevent fire from spreading to his master’s land. The firenever in fact caused the damage and would not have done so even if the defendant had not taken the precautions he took. But the danger of the fire spreading to the master’s land was real and imminent.
Held: The defendant was not liable as the risk to his master’s property was real and imminent and a reasonable person in his position would have done what the defendant did.
In view of the difficulty posed by the above defence, it is not advisable for a defendant to rely solely on it, especially where there are other defences. It is safer to plead it as an alternative to another defence.

7. Act under Statutory Authority

This defense is valid if the act done was under the authority of some statute. For example, if there is a railway line near your house and the noises of the train passing disturbs then you have no remedy because the construction and the use of the railway is authorized under a statute. However, this does not give the authorities the license to do what they want unnecessarily; they must act in a reasonable manner.

Voughan v. Taff Vale Railway Co. (1860)
A railway Company was authorized by statute to run a railway which traversed the plaintiff’s
land. Sparks from the engine set fire to the plaintiffs woods.
Held: that the railway company was not liable. It had taken all know care to prevent emission of sparks. The running of locomotives was statutorily authorized.

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