Prepared by Paul Mukiibi & Joyce Tukahirwa

DEPARTMENT OF LAW AND CONTINUING LEGAL EDUCATION

DIPLOMA IN LAW COURSE

KAMPALA CAMPUS

COURSE TITLE: LAW OF TORTS

LECTURER (S):

Paul MUKIIBI (Head, Department of Law Reporting, Research &

Law Reform & Professional Advisor, LDC)
Joyce TUKAHIRWA (Professional Advisor, LDC Kampala Campus)

COURSE LEADER: Mr. Precious B. NGABIRANO (Head, Department of

Law & CLE & Professional Advisor, LDC)

TOPIC 01: Introduction to the Law of Torts

DATE: Friday May 21st 2021

TIME: 04:00PM-08:00PM (EVENING)

VENUE: AUDITORIUM
Topic 01-Introduction to the Law of Torts
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TOPIC 01: INTRODUCTION TO THE LAW OF TORTS

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main content
3.1 Definition of tort
3.2 The purpose of the law of torts
3.3 The Rule in Smith v. Selwyn
4.0 Conclusion
5.0 Summary
6.0 Revision Questions
7.0 References /Further reading

1.0 INTRODUCTION
This topic considers the definition, objectives and the scope of the law of torts. It also takes an
overview of the subject.

2.0 OBJECTIVES
By the end of this topic, you should be able to:
 Define law of torts;
 Understand the purpose of the law of torts; and
 Explain the rule in Smith v. Selwyn.

3.0 MAIN CONTENT

3.1 Definition of tort
The word ‘tort’ is derived from the latin word “tortus,” which means ‘twisted’. It means ‘wrong’
and it is still so used in French: ‘J’ai tort’; ‘I am wrong.’ In English, the word ‘tort’ has a purely
technical legal meaning – a legal wrong for which the law provides a remedy.

Topic 01-Introduction to the Law of Torts

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Academics have attempted to define the law of tort, but a glance at all the leading textbooks
on the subject will quickly reveal that it is extremely difficult to arrive at a satisfactory, all
embracing definition. Each writer has a different formulation and each states that the
definition is unsatisfactory.
Let us now consider some of these definitions.

To use Winfield’s definition as a starting point, we can explore the difficulties involved
(Rogers, Winfield & Jolowicz on Tort, 15th edn, 1998, London: Sweet & Maxwell, p.4):
Tortuous 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.

In a similar tone, Prof. Sir John W. Salmond in his book Salmond and Heuston, Law of Tort,
18th ed. P. 11, defined tort as:
“A civil wrong for which the remedy is a 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.”

On the other hand, Kodilinye; (Kodilinye, The Nigerian Law of Torts, p.1) defines tort as:
A civil wrong involving a breach of duty fixed by the law, such duty being owed to persons generally
and its breach being redressable primarily by an action for damages.

From the above definitions, one can deduce that a tort is a breach of a civil duty imposed by law
and owed towards all persons, the breach of which is usually redressed by an award of unliquidated
damages, injunction, or other appropriate civil remedy.

In other words, a tort is a breach of a civil duty imposed by law, whose remedy is unliquidated damages,
injunction, or other appropriate remedy.

A tort is a civil wrong that is not exclusively a breach of contract, and which is usually compensated by
an award of unliquidated damages, injunction or other appropriate remedy. Thus, tort is the breach of a
civil duty imposed by law towards all persons, the remedy of which is mainly monetary compensation,
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injunction or other appropriate civil remedy.

As we can see, tort is not easy to define, first, because the difference between tort and other
civil wrongs is a thin line. Sharing this view, Kenny; (Kenny’s, Outline of Criminal Law, 16th
ed. by J. W. Cecil 1952, p. 543.) said:
“To ask concerning any occurrence is this a crime or is it a tort”? Is to borrow SIR JAMES
STEPHEN’s apt illustration – no wiser than it would be to ask concerning a man; is he a father or a
son? For he may well be both.

Secondly, tort is difficult to define because the law of tort runs through the whole of law.
Explaining this feature of tort, KEETON (Law of Torts, 15th ed, 1984 p. 2-3) observed:
“In the first place, tort is a field which pervades the entire law, and is so interlocked at every point with
property, contract and other accepted classifications, that as the student of law soon discovers, the
categories are quite arbitrary. In the second, there is a central theme…running through the cases of
what are called torts, which although difficult to put into words, does distinguish them…from other
types of cases.”
In order to understand tort, it may be helpful to withdraw for a moment from the problems of
definition and take an overview of the subject to consider the nature of the duties which are
imposed and the interests which are protected by this branch of civil law.

3.2 The Purpose of the Law of Torts

The word “tort” means “wrong”. Any unjustifiable interference with the right of another
person may be a tort. As a part of civil law, the purpose of the law of tort is to prohibit a
person from doing wrong to another person, and where a wrong is done, to afford the injured
party, right of action in civil law, for compensation, or other remedy, such as an injunction
directing the wrongdoer who is known as a tortfeasor to stop doing the act specified in the
court order and so forth. Damages are the monetary compensation that is paid by a defendant
to a plaintiff for the wrong the defendant has done to him.

The essential aim of the law of torts is to compensate persons harmed by the wrongful conduct
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of others. The substantive law of torts consists of the rules and principles which have been
developed to determine when the law will and when it will not grant redress for damage
suffered. Such damage takes several different forms such as physical injury to persons;
physical damage to property; injury to reputation; and damage to economic interests. The law
of torts requires every person not to cause harm to others in certain situations, and if harm is
caused, the victim is entitled to sue the wrongdoer for damages by way of compensation.

Monetary damages are the normal remedy for a tort. But there is another important remedy,
the injunction, which is a court order forbidding/restraining the defendant from doing or
continuing to do a wrongful act. Whether the plaintiff is claiming damages or an injunction, he
must first prove that the defendant has committed a tort, for the law of torts does not cover
every type of harm caused by one person to another. The mere fact that A’s act has caused
harm to B does not necessarily give B a right to sue A for damages in tort, unless B can show
that A’s act was of a type which the law regards as tortuous, that is, actionable as a tort.

Thus, the purpose of the law of tort is to prohibit torts, and where a tort is committed the law
of tort provides a remedy for it, by an award of damages or other appropriate relief. The law
of tort deals with a wide variety of wrongs related and unrelated. Thus, the law of tort
enforces rights and liability and provides remedy in the areas covered by the law of tort which
includes the following:
1) Trespass to person, that is, assault, battery and false imprisonment.
2) Malicious prosecution
3) Trespass to chattel, that is, conversion and detinue
4) Trespass to land
5) Negligence
6) Nuisance
7) The Rule in Rylands v. Fletcher (strict liability)
8) Liability for animals
9) Vicarious liability
10) Occupier’s liability
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11) Defamation
12) Deceit
13) Passing off
14) Economic torts, such as, injurious falsehood, interference with contract, etc.

Essentially, the law of torts protects personal and property interests from being harmed by
other persons. Everyone is under a duty not to interfere with the interests of other persons.
Where a person interferes with the interest of another person, without legal justification or
excuse, the law of tort intervenes to apportion blame and award damages or other appropriate
remedy. The main remedies available to a person in the law of tort are several and include:
1) Award of damages that is monetary compensation. See the case of Shugaba v. Minister
of Internal Affairs & Ors (1981) 2 NCLR 459.
2) Injunction and/or
3) Any other remedy, such as, an order to abate a nuisance, or for specific restitution of a
chattel of which the plaintiff has been dispossessed, etc.
The law of tort should be of interest to the average individual because tort is an everyday
occurrence and the law of tort provides remedies for many common incidents of daily life. The
torts which occur every day include trespass to person, trespass to property, nuisance, negligence,
etc. The law of tort defines tortuous acts, apportions blame and determines the appropriate
remedy to be granted when a tort has been committed.

A summary of the Objectives of the Law of Tort

The objectives of the law of tort can be summarized as follows:
1) Compensation:
The most obvious objective of tort is to provide a channel for compensating victims of injury
and loss. Tort is the means whereby issues of liability can be decided and compensation
assessed and awarded.

2) Protection of interests:
The law of tort protects a person’s interests in land and other property, in his or her
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reputation, and in his or her bodily integrity. Various torts have been developed for these
purposes. For example, the tort of nuisance protects a person’s use or enjoyment of land, the
tort of defamation protects his or her reputation, and the tort of negligence protects the
breaches of more general duties owed to that person.

3) Deterrence:
It has been suggested that the rules of tort have a deterrent effect, encouraging people to take
fewer risks and to conduct their activities more carefully, mindful of their possible effects on
other people and their property. This effect is reflected in the greater awareness of the need for
risk management by manufacturers, employers, health providers and others. This is
encouraged by insurance companies.

4) Retribution:
An element of retribution may be present in the tort system. People who have been harmed
are sometimes anxious to have a day in court in order to see the perpetrator of their suffering
squirming under cross-examination. This is probably a more important factor in libel actions
and intentional torts than in personal injury claims which are paid for by insurance
companies. In any event, most cases are settled out of court and the only satisfaction to the
claimant lies in the knowledge that the defendant will have been caused considerable
inconvenience and possible expense.

5) Vindication:
Tort provides the means whereby a person who regards himself or herself as innocent in a
dispute can be vindicated by being declared publicly to be ‘in the right’ by a court. However,
again it must be noted that many cases never actually come before a court and the opportunity
for satisfaction does not arise.

6) Loss distribution:
Tort is frequently recognized, rather simplistically, as a vehicle for distributing losses suffered
as a result of wrongful activities. In this context loss means the cost of compensating for harm
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suffered. This means redistribution of the cost from the claimant who has been injured to the
defendant or in most cases the defendant’s insurance company. Ultimately, everyone paying
insurance or buying goods at a higher price to cover insurance payments will bear the cost.
The process is not easily undertaken and it involves considerable administrative expenses
which are reflected in the cost of the tort system itself. There are also hidden problems
attached to the system, such as psychological difficulties for claimants in using lawyers and
the courts, and practical difficulties such as the funding of claims which may mean that many
who deserve compensation never receive it. It has been suggested that there are other less
expensive and more efficient means than tort for dealing with such loss distribution.

7) Punishment for wrongful conduct:

Although this is one of the main functions of criminal law, it may also play a small part in the
law of tort, as there is a certain symbolic moral value in requiring the wrongdoer to pay the
victim. However, this aspect has become less valuable with the introduction of insurance.

3.3 The Rule in Smith v. Selwyn (1914) 3 KB 98

The common law rule in Smith v. Selwyn states that where a civil wrong is also a crime,
prosecution of the criminal aspect must be initiated, or reasons for default of prosecution
given, before any action filed by the plaintiff can be heard. Thus, it was the position that where
a tort was also a crime, the filing of criminal proceedings against the wrongdoer, preceded the
filing of a civil suit by the aggrieved party. This is known as the rule in Smith v. Selwyn. When
the rule in Smith v. Selwyn was not observed, the civil action by the plaintiff could not proceed
and it was bound to fail as long as the defendant had not been prosecuted or a reasonable
excuse given for the lack of prosecution.
Formerly, the proper course when a civil suit was filed was for the court to stay proceeding in
the civil action until the criminal prosecution was finally completed.

Exception to the Rule in Smith v. Selwyn

The right of an aggrieved party to sue in tort is not affected, once the matter was reported to
the police and the police in the exercise of their discretion decide not to press criminal charges.
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In Nwankwa v. Ajaegbu (1978) 2 LRN 230, The plaintiff reported an assault. The police did not
bring criminal proceedings. The plaintiff then brought civil action claiming damages for
assault and battery. The defence contended that the civil action could not proceed as criminal
charges had not been filed by the police. The court held that the civil action was not caught by
the rule in Smith v. Selwyn which required that where a case discloses a felony, the civil action
should be stayed until criminal proceedings were concluded. The plaintiff having reported the
assault to the police, whose duty it was to prosecute, if the police in their discretion failed to
press charges, it was not the fault of the plaintiff. He was free to initiate civil proceedings for
remedy.
Abolition of the Rule in Smith v. Selwyn in England
However, the rule in Smith v. Selwyn which has been abolished in Britain, also no longer apply
in Uganda. In view of the fact that the rule is a breach of the Ugandan Constitution and other
statutes, that is to say:
1) Criminal Code Procedure Act;
2) Interpretation Act;
3) Civil Procedure Act;
4) Civil Procedure Rules; and
5) The Constitution of the Republic of Uganda, 1995. The rule in Smith v. Selwyn for
instance contravenes Articles 28(i) and 44(c) of the Constitution, 1995 which provisions
forbid the blocking of a right to be heard and a right to a fair hearing before an
impartial court or tribunal established by law. The above mentioned provisions of the
Constitution guarantee right of access to court for every person to institute action for
the protection, or determination of his civil rights and obligations according to law. The
applicability of the rule in Smith v. Selwyn in other countries like Nigeria was
considered by the Court of Appeal in the case of Veritas Insurance Co. Ltd. V. Citi
Trust Investments Ltd. (1993) 3 NWLR Pt. 281, P. 349 at 365 CA; where it held that in
view of the provisions of the Nigerian Constitution, Criminal Code Act and the
Interpretation Act, the rule no longer applies in Nigeria. Niki Tobi JCA as he then was,
reading the unanimous judgment of the Court of Appeal said: “It appears that the
decisions to the effect that the rule applies in Nigerian law were made per incuriam. It is my
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view that the rule is not applicable in Nigeria in view of the very clear two local statutory
provisions. Section 5 of the Criminal Code Act … is one; section 8 of the Interpretation Act… is
another. Let me state verbatim ad literatim the provisions the provisions of the two statutes:
First, section 5. The section provides that the Criminal Code: ‘Shall not affect any right of action
which any person would have had against another if the Act had not been passed’. Second,
section 8 (of the Interpretation Act). The section provides thus: ‘An enactment shall not be
construed as preventing the recovery of damages in respect of injury attributable to any act by
reason only of the fact that the enactment provides for a penalty, forfeiture or punishment in
respect of the act’. In the light of the above statutory provisions, it is not correct to contend, …
that the rule applied in the case. It does not. Apart from the clear position of our law, it does not
even seem to be a sensible thing to stop a plaintiff from instituting an action merely because the
criminal action on the same matter has not been prosecuted. Certainly, a man who is aggrieved
should have nothing to do with a criminal matter before instituting a civil action. The criminal
matter is the concern of the State, so to say, while the civil matter is the concern of the aggrieved
individual. “… The rule is now an anachronism even in England, since the enactment of the
Criminal Justice Act 1967, an Act which put to final rest the erstwhile distinction between
felony and misdemeanor”.

In view of the above provisions of the law, the rule in Smith v. Selwyn no longer apply in most
common wealth jurisdictions. See also Adediran v. Interland Transport Ltd. (1991) 9 NWLR
Pt. 214, P. 155 SC. Finally, the rule does not also apply in the United Kingdom where it
originated, as it was abolished by the Criminal Justice Act 1967, which abolished the
distinction between felony and misdemeanor in the United Kingdom.

4.0 CONCLUSION
In this topic, we have learnt generally about the law of tort, we learnt about the summary of
the objectives of the Law of tort which includes but not limited to;
a) compensation,
b) protection of interest,
c) Deterrences,
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d) retribution,
e) vindication loss of distribution,
f) punishment for wrongful conduct,
g) Injunction and the rule in Smith v Selwyn.

5.0 SUMMARY
The objectives of the law of tort can be summarized as follows:
 Compensation
 Protection of interests
 Deterrence
 Retribution
 Vindication
 Loss distribution
 Punishment of wrongful conduct

6.0 ASSIGNMENT OR REVISION QUESTIONS

1) Different scholars have defined the term “tort,” differently. With reference to scholarly
views, how do you define the term “tort?”
2) Explain what you understand by the rule in Smith vs. Selwyn.
3) Explain the exceptions to the rule in Smith vs. Selwyn and its applicability in Uganda (if
any) today.
4) With reference to clear authorities/illustrations, discuss the objectives of the law of torts
in Uganda.

7.0 REFERENCES/FURTHER READING

 Rogers, Winfield & Jolowicz on Tort, 15th edn, 1998, London: Sweet & Maxwell
 J. W. Cecil, Kenny’s Outline of Criminal Law, 16th ed. 1952
 KEETON, Law of Torts, 15th edn, 1984
 Harpwood Vivienne: Modern Tort Law, 5th ed., US: Cavendish Publishing Ltd, 2003.
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