WHAT ARE TORTS

I. TERM
II. WHAT IS THE DIFFERENCE TO CRIMINAL AND
CONTRACT LAW
III. CLASSIFICATION of TORTS

I.TERM

TORT
Derives its roots from Latin tortum, meaning “something twisted, wrong, or
crooked.” The concept encompasses only those civil wrongs independent
of contracts.
The law of torts is generally concerned with those situations where the conduct
of one party causes or threatens harm to the interests of other parties.
Compensation is a major function of the law of torts and it is best performed
only when compensation is rightly payable. The very concept of compensation
entails the notion of harm or damage.
Like any other area of law, tort has its own set of principles on which cases
should be decided, but clearly it is an area where policy can be seen to be
behind many decisions. For example, in many tort cases the parties will, in
practice, be two insurance companies – cases involving car accidents are an
obvious example but this is also true of many cases of employers’ liability and
occupiers’ liability.
The results of such cases may have implications for the cost and availability of
insurance to others; if certain activities are seen as a bad risk, the price of

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insurance for those activities will go up, and in some cases insurance may even
be refused. This fact is often taken into account when tort cases are decided. In
terms of simple justice, it may seem desirable that everybody who has suffered
harm, however small, should find it easy to make a claim. In practical terms,
however, the tort process is expensive and it is difficult to justify its use for very
minor sums.

The courts therefore have to strike a balance between allowing parties who have
suffered harm to get redress, and establishing precedents that make it too easy to
get redress so that people make claims for very minor harms. The English courts
have often been resistant to upholding claims that would ‘open the floodgates’
for a large number of similar cases to pour into the courts, which again brings
policy into the decision.

II. WHAT IS THE DIFFERENCE TO CRIMINAL

AND CONTRACT LAW

In case of a crime the parties in the case are the wrongdoer and the state (called
the Crown for these purposes), and the primary aim is to punish the wrongdoer.
By contrast, a tort action is between the wrongdoer and the victim, and the aim
is to compensate the victim for the harm done. It is therefore incorrect to say
that someone has been prosecuted for negligence, or found guilty of libel, as
these terms relate to the criminal law. Journalists frequently make this kind of
mistake, but law students should not! There are, however, some areas in which
the distinctions are blurred. In some tort cases, damages may be set at a high
rate in order to punish the wrongdoer, while in criminal cases, the range of
punishments now includes provision for the wrongdoer to compensate the
victim financially (though this is still not the primary aim of criminal
proceedings, and the awards are usually a great deal lower than would be

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ordered in a tort action). There are cases in which the same incident may give
rise to both criminal and tortious proceedings. An example would be a car
accident, in which the driver might be prosecuted by the state for dangerous
driving, and sued by the victim for the injuries caused.

A tort involves breach of a duty which is fixed by the law, while breach of
contract is a breach of a duty which the party has voluntarily agreed to assume.
For example, we are all under a duty not to trespass on other people’s land,
whether we like it or not, and breach of that duty is a tort. But if I refuse to dig
your garden, I can only be in breach of a legal duty if I had already agreed to do
so by means of a contract. In contract, duties are usually only owed to the other
contracting party, whereas in tort, they are usually owed to people in general.

While the main aim of tort proceedings is to compensate for harm suffered,
contract aims primarily to enforce promises. Again, there are areas where these
distinctions blur. In some cases liability in tort is clarified by the presence of
agreement – for example, the duty owed by an occupier of land to someone who
visits the land is greater if the occupier has agreed to the visitor’s presence, than
if the ‘visitor’ is actually a trespasser. Equally, many contractual duties are fixed
by law, and not by agreement; the parties must have agreed to make a contract,
but once that has been done, certain terms will be imposed on them by law. A
defendant can be liable in both contract and tort. For example, if a householder
is injured by building work done on their home, it may be possible to sue in tort
for negligence and for breach of a contractual term to take reasonable care.

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 III. CLASSIFICATION OF TORTS

The types of torts that exist

A. Trespass
B. Negligence
C. Nuisance
D. Passing off
E. Defamation
F. Fraud

A.TRESPASSES
A Trespass is a direct and forcible injury and actions ‘on the case’ where actions
for damages caused otherwise than directly and forcibly.
The interests which the law of torts will protect include physical harm, both to
persons and to property; a person’s reputation, dignity, or liberty; the use of
enjoyment of his land; and his financial interests.

B. NEGLIGENCE (WEEK 2)
Causing damage by:
1. Doing some act which in the circumstances a reasonable, prudent
person would not do or failing to do some act which in the
circumstances such a person would do; or
2. Failing to use such skill or take such care in the exercise of a
profession, trade, or occupation as a reasonable prudent person
qualified to exercise such profession, trade, or occupation would in
circumstances use or take.
Compensation may only be recovered by any person to whom the person guilty
of negligence owed a duty, in the circumstances, not to be negligent.

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Duty of Care:
In order for a Duty of Care to exist (B) Must show that (A) had a responsibility
that by his negative actions(negligence) (B) would be affected.
The general test for the existence or non existence of duty of care
Case: Donohue v Stevenson(1932) All ER Rep 1;
Facts: Mrs. D and a friend stopped for refreshment at a café one hot
afternoon. The friend purchased from the proprietor some ginger beer
manufactured by the defendant. This was supplied in some stone bottles
which were opened at the table. Having happily consumed a glass full. Mrs.
D tipped the bottle to make sure nothing was left: to her horror the
decomposing remains of a snail slithered into her glass. She consequently
became ill with Gastro-enteritis and sued S(the manufacturer) in negligence.
Held: The manufacturer did owe Mrs. D a duty of care. As she was the user
of its product, she was somebody who reasonably foreseeably would be
affected by the way the manufacturer processed its product.
The duty exists wherever one person is in a position to foresee that an
act or omission of his may injure another, and by ‘may’ is generally
meant not ‘possibly might’ but ‘is reasonably likely to’

Occupier’s Liability
There is a duty not to be negligent this exists in the following cases:
1. The occupier of any immovable property will owe a duty to the owner
of such property;
2. The occupier of any immovable property will owe such a duty to any
person and to the owner of any property who are lawfully in or on or so
near to such immovable property as in the usual course of things to be
affected by the negligence

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 3. Any person whether for reward or otherwise, exercising any profession,
trade, or occupation or rendering any service to any other person will
owe such a duty to any person on whom, on the property of whom, or to
whom, such a person is exercising his profession, trade, or occupation
or rendering any service.

According to common law the occupier’s duty towards an invitee, a licensee,

and a trespasser varies.
1. The duty of care for invitees and licensee (lawfully present ion the land)
is to exercise reasonable care in order not to cause them any damage.

Case: British Railway Board v Herrington(1972) AC 877. The paramount

consideration that permeates every notion of duty lies in the need to act with
humanity towards fellow citizens. This decision serves to indicate how law
should keep pace with social ethos.

2. The occupier’s duty towards a trespasser on his land is subjective

depending on the occupier’s knowledge, ability, and his financial
resources. The occupier’s duty to a trespasser Is to take reasonable
measures to enable the trespasser to avoid a danger.

To decide whether an act or omission is negligent, it must be asked whether a

reasonable man would have foreseen that the act or omission in question would
have caused damage.

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 Res Ipsa Loquitor
This is an action which is brought in respect of any damage in which it is
proved that the plaintiff had no knowledge or means of knowledge of the
actual circumstances which caused the occurrence which led to the damage
and that damage was caused by some property of which the defendant had full
control, and it appears to the court that the happening of the occurrence
causing the damage is more consistent with the defendant having failed to
exercise reasonable care than with his having exercised such care.

 Special defences to actions of negligence:

1. Some third person was negligent ant that such third person’s
negligence was the decisive cause of the damage; or
2. The damage was due to the happening of some extraordinary
natural occurrence which a reasonable person would not have
anticipated and the consequences of which could not have been
avoided by the exercise

Contributory Negligence
Where a person suffers damage as the result partly of his own fault and partly of
the fault of any other person or persons, a claim in respect of that damage shall
not be defeated by reason of the fault of the person suffering the damage, but
the damages recoverable in respect thereof shall be reduced to such extent as the
court thinks just and equitable having regard to the claimant’s share in the
responsibility for the damage.
 Liability is distributed in the light of common sense and everyday
experience. The omissions of both sides are not less appreciated but are
appreciated according to the standard of the ordinary man.

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C. NUISANCE
 Public Nuisance
1. Is unlawful act or omission which materially affects the comfort
and convenience of a class of subjects who come within the sphere
of its operation.
2. Not necessary for the plaintiff to have a connection with the
land in order to file an action.
3. Consists of some unlawful act or omission to discharge a legal duty
where such an act or omission endangers the life health, property,
or comfort of the public or obstructs the public in the exercise of
some common right.

 Private Nuisance
The unlawful interference with a person’s use or enjoyment of land, or
some right over or in connection with it.
It is a defense to an action brought in respect of any private nuisance that
the act complained of was done under the terms of any covenant or contract
binding on the plaintiff which insures for the benefit of the defendant.

The law must strike a fair and reasonable balance between the right of the
plaintiff, on the one hand, to the undisturbed enjoyment of his property,
and the right of the defendant, on the other hand, to use his property for his
own lawful enjoyment.

Note: It is not a defense to any action for private nuisance that the nuisance
existed before the plaintiff’s occupation or ownership of the immovable
property affected thereby.

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 The Rule in Ryland v Fletcher(1868) UKHL 1, (1868) LR 3 HL 330
The person who for his own purposes brings on his lands and collects and
keeps there anything likely to do mischief if it escapes, must retain it at his
peril, and if he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape.

D. PASSING OFF
It states that any person who by initiating the name, description, sign, label or
otherwise causes or attempt to cause any goods to be mistaken for the goods of
another person, so as to be likely to lead an ordinary purchaser to believe that he
is purchasing the goods of such other person, shall commit a civil wrong against
such other person; Provided that no person shall commit a civil wrong by reason
only that he uses his own name in connection with the sale of any goods.

The goods are in effect telling a falsehood about themselves are, which
is calculated to mislead. The law on this matter is designed to protect
traders against that form of unfair competition which consists in
acquiring for oneself, by means of false or misleading devices, the
benefit of the reputation already achieved by rival traders.

The foundation of the passing off action lies in the injury to the reputation
and goodwill of the plaintiff’s business. The essential ingredients of the
tort of passing off were stated below:

Case: Erven Warnink v J Townend & Sons (1979) AC 731, [1980]

R.P.C. 31 as follows:
Five characteristics must be present to create a valid cause of action for
passing off:
 A misrepresentation

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  Made by a trader in the course of trade
 To prospective customers of his or ultimate consumers of goods or
services supplied by him
 Which is calculated to injure the business or goodwill of another trader,
and which causes actual damage to the business or goodwill of the trader
by whom the action is brought or will probably do so.

E. DEFAMATION
It consists of the publication by any person by means of print, writing, painting,
gestures, spoken words or other sounds, or by any other means whatsoever,
including broadcasting by wireless telegraphy, of any matter which:
a. Imputes to any other person or crime or
b. Imputes to any other person misconduct in any public office or
c. Naturally tends to injure prejudice the reputation of any other
person in the way of his profession, trade, business, calling or
office or
d. Is likely to expose any other person to general hatred, contempt or
ridicule or
e. Is likely to cause any other person to be shunned or avoided by
other persons.

Libel and Slander:

Libel consists of a defamatory statement or representation in a permanent form.
If a defamatory meaning is conveyed by spoken words or gestures it is slander.
Not so easy to distinguish in a particular case whether it is a libel or slander
There are however two important differences:

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 a. Libel is not only an actionable tort, but also a criminal
offence, whereas slander is a civil injury only.
b. Libel is in all cases actionable per se, but slander is
actionable only on proof of actual damage.

F. FRAUD
The false representation of fact, made in the knowledge that it is false or
without belief in its truth or recklessly, careless whether it be true or false, with
the intend that it will be acted on by the person deceived.
No action may be brought in respect of any such representation unless there was
intention to and did deceive the plaintiff to act thereby suffering damage as a
result.
No action may be brought in respect of any such representation to the
character, conduct, credit, ability, trade, or dealings of any person to obtain
credit, money, or goods unless such representation is in writing and signed by
the defendant himself.

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 BIBLIOGRAPHY

BOOKS ONLINE
1. Key Facts Tort Chris Turner and Jacqueline Martin
https://ebookcentral.proquest.com/lib/UNICAF/detail.action?docID=615908

2. Tort Law and the Legislature : Common Law, Statute and the Dynamics
of Legal Change T. T. Arvind and Jenny Steele
https://ebookcentral.proquest.com/lib/UNICAF/detail.action?docID=177297

3. Emerging Issues in Tort Law Jason W. Neyers, Israel Gilead, Erika Chamberlain,
Stephen G. A. Pitel, Stephen G A Pitel, Erika Chamberlain, Stephen G. A. Pitel,
Kumaralingam Amirthalingam, Peter Benson, and Peter Cane

https://ebookcentral.proquest.com/lib/UNICAF/detail.action?docID=177284
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4.Steele, J (1995) ‘Private law and the environment; nuisance in context’ 15

Legal Studies 236

ARTICLES & JOURNALS

1. Hale LB, 'Speech' (Salford Human Rights Conference, Salford, 4
June 2010) https://www.supremecourt.uk/docs/speech_100604.pdf

2. 'Libel Tourism' (2010) <

https://www.indexoncensorship.org/2010/02/the-libel-tourism-myth/

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3. TRUMPING BOLAM: A CRITICAL LEGAL ANALYSIS OF BOLITHO'S "GLOSS"
Mulheron, Rachael.The Cambridge Law Journal;
Cambridge Vol. 69, Iss. 3, (Nov 2010): 609-638.
https://www.cambridge.org/core/journals/cambridge-law-
journal/article/abs/trumping-bolam-a-critical-legal-analysis-of-bolithos-
gloss/12E1A801046FFA958F745BC5E83776DC
4. McBride, Duties of care – do they really exist? (2004) Oxford Journal of
Legal Studies 417
5. Fordham, Saving us from ourselves – the duty of care in negligence to
prevent self – inflicted harm (210) 18 Torts Law Journal 22

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