 MALICIOUS PROSECUTION



 Is the institution of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause . 

 Alternatively malicious prosecution may refer to institution of unsuccessful criminal proceeding maliciously and without reasonable and probable cause. When such prosecution cause such damage to the party prosecuted it is a tort for which he can bring an action. 

 Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge.

 This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons.

 The foundation lies in the triangular abuse of the court process of the court by wrongfully setting the law in motion and it is designed to encourage the perversion of the machinery of justice for a proper cause the tort of malicious position provides redress for those who are prosecuted without cause and with malice. 

 In order to succeed the plaintiff must prove that there was a prosecution without reasonable and just cause, initiated by malice and the case was resolved in the plaintiff’s favor. It is necessary to prove that damage was suffered as a result of the prosecution .

 COMMENCEMENT OF MALICIOUS PROSECUTION

 The Prosecution is not deemed to have commenced before a person is summoned to answer a complaint.

 In Khagendra Nath v. Jacob Chandra , there was mere lodging of ejahar alleging that the plaintiff wrongfully took away the bullock cart belonging to the defendant and requested that something should be done. The plaintiff was neither arrested nor prosecuted.

 It was held that merely bringing the matter before the executive authority did not amount to prosecution and therefore the action for malicious prosecution could not be maintained. There is no commencement of the prosecution when a magistrate issues only a notice and not summons to the accused on receiving a complaint of defamation and subsequently dismissed it after hearing both the parties.

 ELEMENTS OF MALICIOUS PROSECUTION

 The tort of malicious prosecution provides redress for those who are prosecuted without cause and with malice. In order for the tort of malicious prosecution to succeed the plaintiff must prove that there was a prosecution without reasonable and just cause, initiated by malice, and the case was resolved in the plaintiff’s favor. It is necessary to prove that damage was suffered as a result of the prosecution. 

 In an action of malicious prosecution the plaintiff must prove:-

 1) That the plaintiff was prosecuted by the defendant

 There must have been a prosecution initiated by the defendant. The word ‘prosecution’ means a proceeding in a court of law charging a person with a crime. To prosecute is to set the law in motion and the law is set in motion only by an appeal to some person clothed. The person to be sued is the person who was ‘actively instrumental in putting the law in force. There was a conflict on the question whether there is prosecution of a person before process is issued calling upon him to defend himself. One view was that a prosecution began only when process was issued and there could be no action when a magistrate dismissed a complaint under section 203 of the code of criminal procedure. The other view was that a prosecution commenced as soon as a charge was made before the court and before process was issued to the accused.

 The proper test was indicated by the privy council in the Mohammad Amin v. Jogendra Kumar Bannerjee .The defendant had filed a complaint before the magistrate charging the plaintiff with cheating. The magistrate thereupon examined the complainant an oath and made an inquiry under s 202 of the code of criminal procedure. Notice of the inquiry had been issued to the plaintiff who attended it with his counsel and incurred costs doing so. The magistrate finally dismissed the complaint under section 203 of the code. 

 In these circumstances the Privy Council held that there was a prosecution .The test is not whether the criminal proceedings have reached a stage at which they may be described as a prosecution, the test is whether such proceedings have reached a stage at which damage to the plaintiff results. A mere presentation of complaint to a magistrate who dismissed it on the ground that is disclosed no offence may not be sufficient ground for presuming that damage was a necessary consequence. It will be for the plaintiff to prove that damage actually resulted.

 In the case of Martin v. Watson   the House of Lords held that it is not necessary that defendant should be the prosecutor in any technical sense. What matters that he should in substance be the person responsible for the prosecution being brought. In this case the defendant made various charges to the police that the claimant had indecently exposed himself to her and this lead to the prosecution of the claimant at which no evidence was offered against him.

 In another case Yohana s/o Miyuni v. Isaya s/o Bakobi , The plaintiff sued the defendant for spoiling his reputation, maliciously imprisoning him and uprooting his crops. The parties were neighbor and had numerous disputes over the right of each in relation to the hand of the other. In the cause of one dispute the defendant made a report to the police that the plaintiff had threatened him and the plaintiff was arrested and remanded for two days. The criminal proceeding was terminated on the plaintiff’s favor.

 2) That the proceeding complained was terminated in favour of the plaintiff

 The plaintiff must prove that the prosecution ended in his favour. He has no right to sue before it is terminated and while it is pending. The termination may be by an acquittal on the merits and a finding of his innocence or by a dismissal of the complaint for technical defects or for non-prosecution. 

 If however he is convicted he has no right to sue and will not be allowed to show that he was innocent and wrongly convicted. His only remedy in that case is to appeal against the conviction. If the appeal results in his favour then he can sue for malicious prosecution. It is unnecessary for the plaintiff to prove his innocence as a separate issue.

 In the case of Festo v. Mwakabana  , the appellant having a dispute over ownership of land with his neighbour, harvested maize growing on the land. The respondent preferred a criminal complaint against the former. The appellant was tried and convicted by the trial magistrate but acquitted on appeal. The judge observed that it could not be disputed that so far as plaintiff was concerned the criminal proceedings had been terminated in his favour thereby satisfying. The essential requisite condition for bringing an action for malicious prosecution. 

 in the case of Reynolds v. kennedy , it was held  that no action would lie of the claimant had been convicted even if his conviction was later reversed on appeal. The reasons apparently being that the original conviction showed conclusively that there was foundation for the prosecution. However this is no longer be regarded as good law.

 3) That the prosecution was instituted against without any just or reasonable cause.

 ‘Reasonable and probable cause was defined in the case of Hicks v. Faulkner  as “an honest belief in the guilt of the accused based on a full conviction founded upon reasonable grounds, of the existence of a circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed”.

 In the case of Satyakam v. Dallu the defendant, an illiterate, engaged the plaintiff, as his advocate in a dispute of his landed property. After the decision of this case, there was another dispute of some other property of the defendant and the plaintiff took up the case of the opposite party.

 The defendant object to the conduct of the plaintiff and filed to a complaint in the Bar council of India alleging professional misconduct. The Bar council gave the benefit of doubt to the plaintiff and dismissed the complaint. There after the plaintiff filed a suit for malicious prosecution against the defendant. 

 The court observed that because of similarity between the two litigation and also high traditions of the legal professional, the plaintiff should not have accepted the case against the old client.  Since there was reasonable cause and no Malice on the part of the defendant, it was not the case of malicious prosecution. 

 4) The defendant acted maliciously

 For the purpose of malicious prosecution, malice means having any other motive apart from that of bringing an offender to justice. Thus is the presence of some other and improper motive that is to say the legal process in question for some other than its legally appointed and appropriate purpose.

 In the case of Allen v. Flood, a general rule was propounded that an act lawful in itself does not merely become unlawful because of the bad motives of the actor and some of them  lordships in the House of Lords suggested that Malicious prosecution was not really an exception to this rule. 

 The settled rule is that Malice is the gist of the action for malicious prosecution and must be proved by the plaintiff in the first instance. It is for the plaintiff to prove that there was an existence of Malice that is to say the Burden of proof lies upon the plaintiff. . Anger and revenge may be proper motives if channeled into the criminal justice system. 

 The lack of objective and reasonable cause is not an evidence of malice but lack of honest belief is an evidence of malice.

 In Peter Ng’homango v. Gerson M.K Mwanga  .The court of  appeal established malice when it found out that the principal of the college of Mpwapwa was in conflict with Peter (a tutor) stemming from the fact that Peter was a good and a very nice singer. 

 Evidence of Malice

 Malice may be proved by previously strained relations, unreasonable or improper conduct like advertising of the charge or getting up false evidence.

 Though mere carelessness is not per se proof of malice unreasonable conduct like haste, recklessness or failure to prove enquiries would be some evidence.

 When there is absence of some reasonable cause owing to defendant’s want of belief in the truth of his charge is the conclusive evidence of malice. However the converse proposition is not true because a person may be inspired by malice and also has a reasonable belief in the truth of his case.

 There may be malice either in commencing a prosecution or continuing one, honestly began. The mere fact that criminal prosecution resulted in acquittal or discharge of the accused will not establish that the defendant had acted with malice.

 5) That the plaintiff suffered some damage.

 It has to be proved that the plaintiff has suffered damages as a result of the prosecution complaint of. Even though the proceedings terminate in favour of the plaintiff, he may suffer damage as a result of the prosecution. 

 The damages may not necessarily be pecuniary. According to HOLT C.J., ‘classic analysis in Savile v. Robert, there could be three sort of damages any one of which could be sufficient to support any action of malicious prosecution.

 1) The damage to a man’s fame as where the matter whereof he is accused is scandalous.

2) The damage done to a person as where man is put to a danger of losing his life, limb or liberty

 3) The damage to a man’s property as where is forced to expend money in necessary charges, to acquit himself of the crime of which he is accused.

 The damage must also be the reasonable and probable results of malicious prosecution and not too remote. In assessing damage the court to some extent would have to consider

 1) The nature of the offence the plaintiff was charged of

 2) The inconvenience to which the plaintiff was charged to

 3) Monetary loss and

 4) The status and prosecution of the person prosecuted

 Malicious Civil Proceeding

 An action will not lie for maliciously and without reasonable and probable cause instituting suit the reason stated to be is that “ such a case does not necessarily and naturally involve damage to the party sued.

 The civil action which is false will be dismissed at the hearing. The defendant’s reputation will be cleared against all imputations made against him and he will be awarded costs against the opponent. The law does not award damage for mental anxiety, or extra costs incurred beyond those imposed on unsuccessful parties.

 FALSE IMPRISONMENT

 It occurs when a person is unlawfully restrained, whether by arrest or confinement, or prevented from leaving any place.

 It is an act of the D which directly and intentionally (or possibly negligently) causes the confinement of the claimant within an area delimited by the D. (street on torts)

 False imprisonment is actionable per se and must result from the direct act of the defendant.

 False imprisonment is any direct and intentional act of defendant, causing a total restraint on the freedom of movement of the plaintiff, with limits sets by the defendant, without the plaintiff’s consent or any lawful justification.  

 In Moris A. Sasawata v Mathias Malieko , The respondent successfully sued the plaintiff for damages for F.I. The plaintiff appealed  against the Order of the trial by the trial court ordering him to pay damages to the respondent on the ground that  he was not responsible for the arrest  and subsequent imprisonment of the respondent.

 Held: To constitute FI there must be restraint of the plaintiff’s liberty; The actual perpetrator  of an act which in law turns out to be  a tort is personally liable for damages; In a suit for FI  the plaintiff can recover damages for loss of reputation; It is the duty of the court in Civil  proceedings to draw the attention of the parties to some ambiguity, factual error or omission in their pleadings.

 In Mipawa v R , the plaintiff was a teacher in Mwanza. There was an unexplained death and the plaintiff was arrested in connection with it.  He was detained and released several times.  He was in custody for a total of 16 months.  After his complete discharge he sued the government for FI. Mapigano J. held that the government was liable.  Condemning the police behavior in Mwanza the judge said: 

 “This is a textbook example of how the powerful can, with total scorn for the Civil Rights and with singleness of purpose cause the machinery of criminal law to operate against a completely innocent subject.” The arrests of the plaintiff and the detentions wee without reasonable and probable cause and they were in fact activated by MALICE.

 INGRIDIENTS OF FI

 KNOWLEDGE OF CLAIMANT

 False imprisonment can also occur even if the victim is unaware of it at the time. According to Lord Atkin, a person can be imprisoned while he is asleep, in a state of drunkenness, while unconscious or while he is a lunatic. 

 In the case of Merring V Grahame-white aviation co ltd , the claimant was brought to his employer’s office to be interviewed in connection with theft. Two guards had been stationed outside to prevent him from leaving and when the claimant found out, he brought an action for false imprisonment. 

 Lord Atkin said,” it appears to me that a person could be imprisoned without his knowledge……..it is quite unnecessary to go on to show that in fact the man knew that he was imprisoned” the defendants were therefore held liable for false imprisonment.

 However, if a person is unaware that he has been falsely imprisoned and has suffered no harm, he can normally expect to cover not more than nominal damages.

 THE CHARACTER OF THE D’s ACT

 There must be total or complete restraint such that there is no means of escape, if there is reasonable means of escape, the restraint cannot amount to false imprisonment. False imprisonment can also occur even if the victim is not aware at the time. 

 False imprisonment need not be in a prison, however, how large the area of confinement can be largely depends on the circumstances so that the boundaries of the area of confinement must have been fixed by the defendant as stated by Lord Coleridge J in Bird v. Jones; ‘Some confusion seems……… to arise from confounding imprisonment of the body with mere loss of freedom…. Imprisonment…. Includes the notion of restraint within some limits defined by a will or power exterior to our own.’

 Lord Denning however gave a dissenting judgment; ‘As long as I am prevented from doing what I have a right to do, of what importance is it that I am permitted to do something else?… If I am locked in a room, I am not imprisoned because I might effect my escape through a window, or because I might find an exit dangerous or inconvenient to myself, as by wading through water…..?’

 If the means of escape causes a risk of personal injury or if it is otherwise unreasonable for the victim to escape, then liability for false imprisonment arises. However the barriers to the means of escape need not be physical e.g. in a case where a commissioner in Lunacy wrongfully used his authority to dissuade the claimant from leaving his office, he was liable for false imprisonment.

 Once a restraint has been effected by an assertion of authority then it is enough for liability for false imprisonment to emerge e.g. restraint on movement in the street by a threat of force that intimidates a person to compliance without touching the victim is false imprisonment. (street on torts pg 249) once there is lawful detention then changes in the conditions of his detention will not render the detention unlawful e.g. in the case of prisoners being detained in unsanitary cells, this cannot be termed as false imprisonment.

 DEFENDANT’S STATE OF MIND

 In this tort, the D must intend to do an act which will substantially effect the confinement. However there is no need to prove malice because even where the D confines the claimant in good faith, he is still liable for the intentional confinement of the claimant. 

 In R v. Governor of Brockhill Prison ,  in this case a prisoner governor who calculated the claimant’s day of release in accordance with the law as understood at the time of her conviction was held liable when a subsequent change of the law meant that the prisoner should have been released 59 days earlier. An honest mistake whether negligently made or not as to the right to continue detention does not excuse a trespass to the person.

 In a similar case Quinland v. Governor of Swalesdale Prison, there was a judicial error that increased the sentence by three months longer than it ought to have been causing the claimant to be detained longer than it should have been. The C.A. stated that since the prisoner was unduly detained by virtue of a court order, there would be no remedy other than the correction of the arithmetical error that had been made in adding together the various periods of confinement attributable to the various offences of which the claimant had been convicted. 

 Negligence should be enough to result to liability for false imprisonment for example where a person locks a door while being negligently unaware of the presence of somebody in the room.

 DEFENCES

 LAWFUL ARREST

 Any lawful arrest made in accordance with the  law cannot amount to false imprisonment. Any private citizen making citizen’s arrest should be wary as a private citizen has protection if an arrestable offence has actually been or is being committed by the person arrested and the police have been involved. A police officer does not lose the protection even where the arrest is mistaken provided that it was reasonable.

 DETENTION FOR MEDICAL PURPOSES

 The lawful detention of persons suffering from mental disorder is provided for in the Mental Health Act 1983, but must be in accordance with the provisions and if the contrary happens then there is false imprisonment. In cases where a person is ill and in need of treatment but the illness does not meet the criteria for compulsory detention.

 Difference between Malicious Prosecution and False Imprisonment

 An action of both the Torts of Trespass and False Imprisonment will not lie, unless the Defendant intentionally caused the Plaintiff's bodily restraint. The Tort of Malicious Prosecution must be distinguished from the Tort of False Imprisonment. 

 The Tort of False Imprisonment arising out of an improper arrest of a suspected criminal bears a resemblance to the Tort of Malicious Prosecution, which consists in the abuse of legal process by maliciously and without reasonable and probable cause instituting a groundless criminal prosecution. 

 A person who brings about an arrest by merely setting in motion the formal process of law, as by making a complaint before a justice of the peace or applying for a warrant, is not liable for the Tort of False imprisonment because:

 He will be liable, if at all, only for the misuse of legal process by procuring an arrest for an improper purpose for which the appropriate remedy is an action for Malicious Prosecution.

 TOPIC TWO:  INTENTIONAL TORTS

 This Topic will cover the following Tortious Liabilities Commonly known as Intentional Torts:

 1. Trespass to person

 (a) Battery and Assault

 (b) False Imprisonment

 (2). Malicious Prosecution

 3. Interference with Chattels

 (a) Trespass to Goods

 (b) Conversion

 (c) Detinue

 4. Trespass to land.

 INTRODUCTION

 Injuries can occur for a variety of reasons. They can happen because another person was negligent or reckless, or because the person wanted to intentionally inflict an injury.

 Intentional torts occur when a person intentionally acts in a certain way that leads to another person's injury. Some common examples of intentional torts are assault, battery, trespass, and false imprisonment. 

 TRESPASS TO PERSON



 INTRODUCTION

 The essence of trespass to the person is that it provides a claimant’s protection against direct invasion of his bodily integrity. In 1959, it was established that in order to succeed in trespass, it was not enough for the claimant simply to prove a direct invasion of his bodily integrity. 

 In Fowler v. Lanning , the plaintiff’s statement of claim alleged that on a certain date and at a certain place, the defendant shot the plaintiff and thus suffered injury. The defendant objected that this statement of claim disclosed no cause of action in that it did not allege that the shooting was intentional or negligent.

 Diplock J held that to succeed in trespass, it was not enough to prove a direct act; the plaintiff had in addition to prove that the direct act was done intentionally or negligently.

 This was affirmed by Lord Denning in the case of Letang v. Cooper , While on holiday, in Cornwall, Mrs. Letang was sunbathing on a piece of grass where cars were parked. Mr. Cooper drove into the car park. He did not see her and ran into her legs injuring her. She claimed damages on both negligence and trespass to person.

 In his opinion Lord Denning went ahead to state that when the injury is not inflicted intentionally, but negligently, then the only cause of action is negligence and not trespass. If it were trespass, it would be actionable without proof. Thus, trespass to the person is actionable per se.

 Trespass to the person relates to direct and forcible injury to the person, Direct means that the injury must follow so closely on the act that it can be seen as part of the act. However, injuries caused by a car accident are not direct but are regarded as consequential. (Letang v. Cooper)

 Forcibly–used to describe any kind of threatened or actual physical interference with the person of another. Injury–includes any infringement of personal dignity or bodily integrity. Actual physical harm is however not an essential ingredient of trespass to the person since the tort is actionable per se.

 Trespass to the person, has three components which may either occur together or separately: assault, battery and false imprisonment. In their definitions, these components incorporate the words intentional and direct.

 ASSAULT

 According to Winfield and Jolowicz at pg. 71, assault is defined as an act of the defendant which causes the claimant reasonable apprehension of the infliction of battery on him by the defendant.

 Gold LJ in Collins v Wilcock , defines assault as an act which causes another person to apprehend infliction of immediate, unlawful force on his person. An obvious example can be A pointing a loaded gun at B. In such a case by virtue of pointing the gun the claimant reasonably apprehends the infliction of an immediate battery.

 Assault means any direct and intentional act of the defendant, which puts a reasonable person in apprehension of an imminent physical contact with his body. 

 Unlike battery, assault involves no bodily contact. Rather, it involves the apprehension of imminent bodily contact, and the defendant has the capacity to carry the threat into action. Verbal threats of violence can also constitute an assault if there is sufficient apprehension of their immediate implementation.

 INGREDIENTS OF ASSAULT

 CONDUCT

 Conduct amounts to something which threatens the use of unlawful force. In addition to physical action, threats can also be conveyed verbally unlike in the past when threatening words could not amount to an assault. 

 This has been attributed to by the rise of new means of communication e.g. telephone and email. where a verbal threat by these means can weigh the same as a gesture supported by threatening words which can however have the opposite effect by making it clear that the assailant does not intend to carry out the threat.

 In Turberville v. Savage , Tuberville put his hand upon his sword and said ‘If it were not assize-time, I would not take such language from you.’ Savage later sued Tuberville for assault.

 The court held that to be liable for assault at least one of the following must be present: 1. an act intending to cause harmful control to another person, or imminent apprehension, or 2. a third person put in apprehension if he believes the person can do damage. An assault exists even if the other party can defend against the action and the action is not inevitable. Mere threats of future harm are insufficient.

 In this case the court held that the declaration of Tuberville was that he would not assault Savage at that point in time. To commit an assault there must be intention followed by an act. An assault is present if the fear is reasonable. The court held that in this case there was clearly no intention of assault.The intention as well as the act makes an assault.

 REASONABLE FEAR

 The victim’s fear that the threat is likely to be carried out must be reasonable. This partly depends on a subjective test which looks at the victim’s view of the situation. 

 In R v St George , the judge said that it is an assault to point a weapon at a person though not loaded, but so near that if loaded, it might do injury. However, if the victim knew that the gun was unloaded, any fear would be regarded as unreasonable.

 The threat must be capable of being carried out at the time it is made. In cases of telephone threats, the House of Lords in R v. Ireland indicated that the fear should be that the assailant would be likely to turn up ‘within a minute or two’.

 If the defendant were to be prevented from carrying out the threat, it would still amount to assault if he was advancing with that intent. In Stephens v. Myers , it was decided that if the D was advancing with the intent, then it amounted to assault. A similar decision was made in the case of Thomas v. National Union of Mineworkers (South Wales Area) . It therefore arises that ability to carry out the threat must exist at the time the threat is made.

 Assault can also be by means of verbal threat. Traditionally the use of threatening words alone could not amount to assault. R v. Meade and Belt , but in the modern day there are other forms of communication such as telephone and emails that can be used as channels for assault.

 Examples: To throw water at a person is an assault but if any drops fall upon him it is battery. Pulling a chair as a practical joke from somebody who is about to sit on it is an assault until he reaches the floor because as he is falling he reasonably expects that the withdrawal of the chair will result in harm to him. When he hits the floor and gets hurt, then it is a battery.

 BATTERY

 According to Salmond and Heuston (p125) battery is the application of force to the person of another without lawful justification.

 Goff LJ in Collins v Wilcock states that battery is the actual infliction of unlawful force on another person. He states that touching will only amount to a battery where it does not fall within the category of physical contact generally acceptable in the ordinary conduct of general life.

 Battery means an intentional and offensive touching of another without lawful justification. . In battery, the defendant applies direct force with the plaintiff. In Fagan v Metropolitan Police Commissioner , the court held that “it requires some positive act, as opposed to a mere omission, resulting in actual physical contact with the plaintiff’s body.” Also, it is no need to be flesh to flesh.  In the case, Barry applies the force by throwing a vase at Sam and actually injures Sam indicate that Barry is intentional to hurt Sam. While, Happy and Cole apply the force of “throw the knife into Sam’s house” and cause Gavin injured constitute battery too.

 In R. v.  Rev. Father John Rwechungura , Kisanga J stated that in order to establish a battery it is necessary to prove two ingredients, (a) beating or touching of another person and (b) that the  beating or touching was done in an angry, revengeful, rude, insolent or hostile manner, which adjectives can note an evil mind.

 INGREDIENTS OF BATTERY

 INTENTION

 For there to be liability for battery, the touching must be intentional whether or not the D intended to cause injury, and if it is non-intentional, then it amounts to negligence. (Letang v. Cooper). If the D misses the person he intends to hit and he hits someone else, the doctrine of transferred malice is considered. A intending to hit B, actually hits C, C will have action against A as’ intention to hit B is transferred to C.

 In Livingstone v. Ministry of Defence , a soldier in Northern Ireland fired a baton round targeting a rioter but he missed and hit the claimant instead. It was held that the soldier had intentionally applied force to the claimant.

 DIRECT

 The battery must be the direct result of the D’s intentional act. In Scott v. Shepherd , shepherd threw a lighted squib into a market house and it landed on the stall of a ginger bread seller. To prevent damage to the stall, Willis picked it up and threw it across the market. Ryal, to save his own stall, picked it up and threw it away. It struck the claimant in the face and exploded, blinding him in one eye. The D intended to scare someone although he did not intend to hurt the particular person who was actually injured, however he was held liable in battery. 

 The force applied does not have to be personal contact e.g. in Pursell v. Horn , Where the D threw water over the claimant. In Nash v. Sheen , the claimant had gone to the D’s hairdressing salon where she was to receive a ‘permanent wave’ D was held liable in battery.

 There must be an intentional touching or contact by the D which must be proved to be a hostile touching. Wilson v. Pringle ,  A School boy admitted that he had pulled a bag which was over the shoulder of another boy making him fall and get injured. Summary judgment on the basis of battery was entered for the claimant. The school boy’s act of pulling the bag was merely a prank, the necessary element of hostility was lacking. 

 This was expounded in R v. Brown , Unlawful touching can also be described as unlawful. Though there is the issue of directness of touching, that is the touching must be applied directly from the defendant, case law dating back over the centuries just shows how widely courts are prepared to stretch the meaning of direct. 

 In Gibbons v Pepper , the defendant whipped a horse so that it bolted and ran down the claimant. The defendant was liable in battery for claimant’s injury.

 DEFENCES TO ASSAULT AND BATTERY.

 LAWFUL AUTHORITY

 A person committing assault and/or battery and has legal authority for the action cannot be liable for that act. The statutes give this authority to;

 Police officers

 The powers of police officers are provided for in the statutes and, provide that they act within the scope of those powers, they cannot be charged with trespass to the person. If the action goes beyond what is permitted, then a police officer may be liable. 

 In Collins v. Wilcock , a police officer needed to obtain a woman’s name and address in order to caution her for soliciting for the purpose of prostitution. The officer detained the woman by holding her by the elbow. The woman scratched the officer and was charged with assaulting a constable in the execution of her duty. The police officer’s action went beyond the generally acceptable conduct of touching a person to engage his or her attention.

 It therefore follows that the officer’s action constituted a battery on the woman. Reasonable force may be used to make an arrest but that force must be reasonable and proportionate to the crime being prevented.

 CONSENT

 Where the claimant has consented to the actions of the D, he lacks any cause of action. Consent may be express or implied. In sports, where a person takes part in a contact sport, then he has consented to the touching which occurs in the playing of the game within the rules. 

 In Simms v. Leigh Rugby Football Club , If the touching is not permitted within the rules, then it is unlawful and the D may be liable for trespass to the person. In medical treatment, consent must be real i.e. the victim must understand what it is that they are consenting to, for the D to be exempted from liability. A person with capacity of adult years and sound mind has an absolute right to give or withhold consent to treatment. 

 In Ms B v. An NHS Hospital Trust , The claimant was completely paralyzed, able to move her head very slightly and to speak. She was being kept alive on a ventilator and had no hope of any recovery. She faced the rest of her life like this and informed those caring for her that she wanted the ventilator turned off. She was effectively saying that she withdrew her consent to the treatment. The doctors who had been caring for her for over a year found it impossible to accept her decision and argued that she lacked capacity to make her own decisions.

 The claimant sued for a declaration that she had the necessary capacity and that her continued treatment was a trespass to her person. The Defendants were therefore liable for trespass during the time the claimant had been treated against her will and a small sum by way of damages for battery was awarded. She later went to another hospital where her decision was respected.

 NECESSITY

 Where it is necessary to prevent harm to others then trespass to the person may be justified. It can also be used in medical cases to justify treatment to a person without capacity e.g. in cases of emergency. 

 In F v. West Berkshire Health Authority ,  F aged 36 had serious mental disability and the mental capacity of a child of four. She had formed a sexual relationship with another patient and the doctors were concerned that pregnancy would be disastrous for her so they sought for a declaration from the court for an operation for her sterilization. It was held that it was in F’s best interests to be able to maintain the sexual relationship hence the operation should take place.

 PARENTAL AUTHORITY

 A parent will not be liable for assault or battery for inflicting punishment on a child if the force used is reasonable and is proportionate to the wrong committed by the child. The child must understand the purpose of punishment which must be proportionate to the wrong committed by the child.

 SELF-DEFENSE

 A person is entitled to use reasonable force in self-defence or to protect others provided that the force used is proportionate to the danger. 

 In Cockcroft v. Smith , There was a scuffle in court between a lawyer and a clerk where the clerk thrust his fingers towards the lawyer’s eyes so the lawyer bit off one of the clerks fingers. It was held not to be proportionate response to the threat.

 BATTERY VERSUS ASSAULT

 Battery & Assault are crimes as well as torts. An Assault in Criminal Law is rather different from the Tort of Assault: Read sections 240-243 of the Penal Code, Chapter 16 of the Laws of Tanzania.

 The Tort of Battery, On the other hand, exists where there is a voluntary act of the Defendant.

 Very often the threat of violence will be immediately followed by the actual application of violence to the Plaintiff's person, so that the Defendant would have committed both an Assault and a Battery. 

 An example of a situation in which there would be a battery but no assault is where the Plaintiff is struck unexpectedly from behind, or when he is asleep. 

 An example of an Assault without a Battery is where the Defendant aims a blow at the Plaintiff but his blow intercepted by a third Party.

 In Assault, the act of the Defendant must have been such a reasonable man might fear that violence was about to be applied to him. The fact that the Plaintiff was exceptionally brave and was not afraid [of threat of violence from the Defendant] will not prevent him from succeeding in his action if a Defendant of ordinary courage would have been afraid.

 Battery is the most common form of trespass to the person. It is committed by intentionally bringing about a harmful or offensive contact with the person of another. Battery action serves the dual purpose of affording protection to the individual not only against bodily harm but also against any interference with his person, sense of honour and dignity:

 A battery includes an assault. It is mainly distinguishable from an assault in the fact that physical contact is necessary to accomplish it

 TOPIC ONE:  INTRODUCTION  TO LAW OF TORTS

 At the end of TOPIC ONE you should be in a position to understand  the following salient areas of the Law of Tort:

1. Comprehensive Meaning of law of Torts, nature & it’s constituents

2. Reception of the Law of Torts in Tanzania.

3. Foundations of Tortious Liability and the criticism thereto.

4. Distinction between Tort and Other Forms of Liability eg. Breach contract

5. General and peculiar Rules patterning to Tortious Liability.

 INTRODUCTION



 DEFINITION OF THE TERM TORT

 Etymologically the term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’. The word tort is derived from the Latin word tortum which means twisted or crooked or wrong and is in contrast to the word rectum which means straight.

 Tort now means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable.

 In spite of various attempts an entirely satisfactory definition of tort still awaits its master. In general terms, a tort may be defined as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages. Some other definitions for tort are given below:-

 SCHOLARLY DEFINITIONS OF TORTS

 SALMOND’s Definition: Tort  is a  civil  wrong  for which the remedy  is  a common law action for unliquidated damages, and which is NOT exclusively the breach of a  contract,  or, the  breach  of  a  trust,  or, other merely  equitable  obligation.

 WINFIELD’s Definition: ‘Tortious liability’ arises from  the  breach  of duty  primarily fixed by  law. This duty  is towards persons generally and its breach is redressible by  an action  for unliquidated damages.

 FRASER’s Definition: Tort is an  infringement of  a right  in rem  of a  private  individual giving a  right of compensation  at the suit of the injured party.

 POLLOCK’s   Definition: ‘Tort’ is an  act  or omission  (not merely the  breach  of a  duty arising out of  a personal relation, or undertaken by contract) which is relate to a harm  suffered by a determinate person, giving rise to a civil remedy which is not an action  of contract. 

 ‘The  law  of  tort’s  in civil  wrongs   is  a collective  name  for the  rules  governing  many  species  of liability  which,  although  their subject  matter  is  wide and  varied have  certain  broad  features  in common, are  enforced by the  same  kind  of legal  processes  that  are  subject  to  similar exceptions. 

 CLERK &  LINDSELLs Definition: A tort   may  be  described as  wrong  independent  of contract,  for  which  the  appropriate  remedy is common  law  action.

 ANALYSIS OF  WINFIELD’S DEFINITION  OF  TORT

 1.  Duty primarily  fixed  by  law: An essential  principle  of tortious liability  is  that the  duty  is always  fixed  by  law  itself and  NOT by any agreement between  parties. Therefore  parties  cannot  create  a  tortious liability  through a contract,  nor,  can  they  ‘negate’  a  tortious liability  through  a  contract.

 For  Example I am under  a legal  duty  not  to  trespass  on  my  neighbor’s  property. This is  a  duty  primarily  fixed  by law on  me. Similarly, by  the  same  principle  my  neighbour cannot  trespass into  my  property. 

 As per Winfield’s definition, liability arises from  the  breach of such duties  fixed  by  law. Any  person who commits such a breach  can  be  proceeded against  in a court  of law  by  the person  whose rights  are breached.   

 2.  Duty is  towards  persons  generally: Here,  the  word  ‘generally’  implies  that applies  to  all. For example I am  duty  bound  not  to trespass into  my  neighbor’s land. Similarly  he  is  also  duty  bound  not  to  trespass  into  my  land. Likewise,  all  our  other neighbors and  also  others  who  are  not  our  neighbor’s are  bound  by the same  law  not  to  trespass into  each  other’s  lands.   

 3. Action for unliquidated damages: In tort the damages are unknown and  ‘unquantified’  till an  action  for  damages  arises  in  a court. Thereafter,  the court  decides  the  quantum of damages  based on  merits of  the claim  and circumstances  of  the case.  

 Criticism (shortcomings)  of  Winfield’s  definition:

 a) In framing  this definition,  Winfield  is  not  seeking  to  indicate  what  conduct  is  and  what  is not  sufficient to  involve a person in tortious  liability,  to  distinguish  from  certain  other branches of  law   

 b) The  phrase  'duty  towards  persons generally'  is  vague  and  not  adequate  to  include  duties arising  from  special  relationships like  doctor and  patient etc., and  to  exclude  duties arising between guardian  and  ward  or trustee  and  beneficiary  etc. which  fall  outside  the  ambit  of law of  tort.   

 c)  The phrase 'liability arises  from  the  breach  of duty',  may be  true at  an  earlier stage  of development of law of tort, but  it is  not  applicable or appropriate  to  an important  category of liability  at the present  day,  for example, vicarious liability  of a  master  for his  servant's 

 d) ‘Unliquidated  damages’  is  not  the  only  remedy. There  are  other  remedies  such  as self help, injunction  and  specific  restitution of property  also  available.

 ANALYSIS OF SALMOND’S DEFINITION OF TORT

 1.  Tort  is  a  civil  wrong. A ‘Wrong’ can  be  civil  or criminal. Tort  belongs  to  the  category  of civil  wrongs. In  the  case  of  a civil  wrong,  the injured party  institutes  civil  proceedings against  the wrong doer and  the remedy  is  damages. 

 2.  Tort is  other  than  Breach  of  Contract  or  Breach  of Trust:  In  order  to  determine  whether  the wrong  is tort  or not,  the following  steps are  to  be  followed,  a)  Whether  the  wrong  is civil  or criminal. b)  If it is civil  wrong, it  has  to  be  further seen  that whether it belongs to  another recognised category  of  the civil  wrongs, such as breach  of contract  or  breach  of  trust. c)  It is  only when the  wrong  does  not  belong  to  any  other category  of  the  wrong  that  is, breach of  contract  or  trust,  it  is tort  and  if the  wrong  is breach  of contract  or trust,  it is  not a tort.  

 3. Tort is redressible by action  for  unliquidated damages: Damages is the most  important remedy  for a  tort. After the  commission  of  the  wrong, it  is  not possible to  undo  the  harm  which  has already  been caused but  it is  the  monetary compensation which  can  be  awarded  to  the  injured party. 

 Criticism  of  Salmond’s  definition:  The  definition given by Salmond  fails  to  underline  the essential  characteristics  of  tortious acts. According  to  this definition  tort  is  a wrong  but  it does not explain what  is  wrong  and  what  kinds of wrong.  Moreover the expression "civil wrong" itself  requires  explant’s definition  also suffers  from  all the  shortcomings of  Winfield’s  definition. While  this  definition  is  more informative,  this is  still far  from  perfect.   

 INGREDIENTS OF TORTS

 Every wrongful act is not a tort. To constitute a tort:

 There must be a wrongful act committed by a person;

 The wrongful act must be of such a nature as to give rise to a legal remedy and

 Such legal remedy must be in the form of an action for unliquidated damages.

 1) Wrongful Act

 An act which prima facie looks innocent may become tortious, if it invades the legal right of another person. In Rogers v. Ranjendro Dutt, the court held that, the act complained of should, under the circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him in some legal right; merely that it will however directly, do him harm in his interest is not enough.

 A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides.

 Rights available against the world at large are very numerous. They may be divided again into public rights and private rights. To every right, there corresponds a legal duty or obligation. This obligation consists in performing some act or refraining from performing an act.

 Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.

 Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.

 2) Damage

 In general, a tort consists of some act done by a person who causes injury to another, for which damages are claimed by the latter against the former. In this connection we must have a clear notion with regard to the words damage and damages. 

 The word damage is used in the ordinary sense of injury or loss or deprivation of some kind, whereas damages mean the compensation claimed by the injured party and awarded by the court. Damages are claimed and awarded by the court to the parties. 

 The word injury is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not.

 The real significance of a legal damage is illustrated by two maxims, namely: Damnum Sine Injuria, ubi Jus Ibi remedium and Injuria Sine Damno.

 DAMNUM SINE INJURIA

 It means that harm which is caused without violation of legal right. This is to say causing of damage, however substantial, to another person is not actionable in law unless there is also violation of legal right by one results in consequential harm to the other

 “The mere fact that a man is injured by another’s act gives in itself no cause of action; if there is deliberate the party injured will have no claim in law even though the injury is intentional, so long as the other part is exercising”. Lord Wright a legal right. (Grant v. Australian Knitting Mills )

 According to this maxim “damage” is not the basis of action unless such damage is the results of violation of legal right of plaintiff.

 Also in the case of Action v. Blundell  the defendant by digging a coal pit intercepted the water which affected the plaintiff well, less than 20years old, at a distance of about one mill. It was held, they were not liable. It was observed “the person who owns the surface may dig therein and apply all that is there found to his own purposes, at him free will and pleasure and that if in the exercise of such rights he intercepts or drains off the water collected from underground springs in the neighbor’s well, this inconveniences to his neighbor fall within description damnum abseque injuria which cannot become the ground of action.

 In Chesmore v. Richards  the plaintiff, a mill owner, was using for his mill for about 60 years water from a stream which was fed by rainfall percolating through underground strata to the stream, but not flowing in defined channels. The defendant sunk a well on their land and pumped large quantities of water, which would otherwise have gone to the plaintiff’s stream, thereby causing loss to the plaintiff. For this the defendants were held not liable.

 INJURIA SINE DAMNUM

 This means an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of action. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right.

 Every person has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of special damage. 

 The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. This principle was firmly established by the election case of Asby v. White , in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The candidate for whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff

 3) Remedy

 The law of torts is said to be a development of the maxim ubi jus ibi remedium or ‘there is no wrong without a remedy’. If a man has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without remedy; want of right and want of remedy are reciprocal.

 Where there is no legal remedy there is no wrong. But even so the absence of a remedy is evidence but is not conclusive that no right exists.

 RECEPTION OF LAW OF TORTS IN TANZANIA

 Tanzanian tort law stems from English common law, and thus its history is that of English tort law as it developed from the twelfth century onwards. This is a history which has been well chronicled. 

 Otherwise most of Tanzanian Law of Tort is Common Law based and was developed and shaped by socio-economic events taking place in England. 

 Colonial Tanganyika had a dual Court System. There was a Court System for Natives (applying Customary Law and Islamic Law). There were also Subordinate Courts. Subordinate Courts were specifically tailored to cater for the Non-Natives. Subordinate Courts applied general laws of Tanganyika. 

 Most of Tort cases we shall study originated from Subordinate Courts’ System applying English Law of Torts. Dual Court system in Tanganyika was finally unified into single Court System by the Magistrates’ Courts Act, 1963 which provided for the 3-tier Court system consisting of the High Court; District Court and Primary Court. It goes without saying that the history and development of the English Common Law is as relevant to England as it is for Tanzania.

 Common Law of Torts as applicable in Tanzania today emerged from a society wherein all facets of life were regulated according to classes (ie King and Royalty; Nobility and Villein) of people. To understand the Common Law of Tort as applicable in Tanzania it is imperative to understand its feudal origin in England. Land, in feudal Britain was the source and principal means of wealth and therefore the main source of power and the origin of the common law reflects this situation. Law of Torts emerged from simple conflicts on, over and pertaining to land.

 The major sources of tort law includes (I) Common Law of England received in Tanzania through the Reception Clauses as per section 2 (3) of JALA. (II) Statutory Laws: Parliament has made very little inroad into Law of Tort. The Tanzanian law of Tort is still basically Common Law of England. Parliament has enacted pieces of legislation such as Law Reform (Fatal Accidents and Miscellaneous Provisions), Occupiers Liability Act just to mention a few. (III) Case laws or precedents form basic source of tort law too in Tanzania.

 NATURE OF TORTS

 Tort and crime

 Historically tort had its roots in criminal procedure. Even today there is a punitive element in some aspects of the rules on damages. 

 However, tort is a species if civil injury or wrong. The distinction between civil and criminal wrongs depends on the nature of the remedy provided by law. 

 A civil wrong is one which gives rise to civil proceedings. A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. 

 Sometimes the same wrong is capable of being made the subject of proceedings of both kinds. For example assault, libel, theft, malicious injury to property etc. in such cases the wrong doer may be punished criminally and also compelled in a civil action to make compensation or restitution.

 Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where the appropriate remedy for it is an action for unliquidated damages.

 Thus for example, public nuisance is not a tort merely because the civil remedy of injunction may be available at the suit of the attorney general, but only in those exceptional cases in which a private person may recover damages for loss sustained by him in consequence thereof. 

 However it has to be born in mind that a person is liable in tort irrespective of whether or not an action for damages has been given against him. The party is liable from the moment he commits the tort. Although an action for damages is an essential mark of tort and its characteristic remedy, there may be and often other remedies also.

 DIFFERENCES BETWEEN TORT AND CRIME

 Being a civil injury, tort differs from crime in all respects in which a civil remedy differs from a criminal one. There are certain essential marks of difference between crime and tort they are:

 Tort is an infringement or privation of private or civil rights belonging to individuals, whereas crime is a breach of public rights and duties which affect the whole community.

 In tort the wrong doer has to compensate the injured party whereas in crime, he is punished by the state in the interest of the society.

 In tort the action is brought about by the injured party whereas in crime the proceedings are conducted in the name of the state.

 In tort damages are paid for compensating the injured and in crime it is paid out of the fine which is paid as a part of punishment. Thus the primary purpose of awarding compensation in a criminal prosecution is punitive rather than compensatory.

 The damages in tort are unliquidated and in crime they are liquidated.

 SIMILARITIES BETWEEN TORT AND CRIME

 There is however a similarity between tort and crime at a primary level. 

 In criminal law the primary duty, not to commit an offence, for example murder, like any primary duty in tort is in rem and is imposed by law.

 The same set of circumstances will in fact, from one point of view, constitute a crime and, from another point of view, a tort. For example every man has the right that his bodily safety shall be respected. Hence in an assault, the sufferer is entitled to get damages. Also, the act of assault is a menace to the society and hence will be punished by the state.

 However where the same wrong is both a crime and a tort its two aspects are not identical. Firstly, its definition as a crime and a tort may differ and secondly, the defenses available for both crime and tort may differ.

 The wrong doer may be ordered in a civil action to pay compensation and be also punished criminally by imprisonment or fine. If a person publishes a defamatory article about another in a newspaper, both a criminal prosecution for libel as well as a civil action claiming damages for the defamatory publication may be taken against him.

 DIFFERENCE BETWEEN TORT AND BREACH OF TRUST

 Firstly, in case if a breach of a trust the damages claimable by the injured party may possibly be liquidated simply because it is only the misused or mismanaged part of the property will be claimable by the injured party. In tort the damages claimable by the injured party are always unliquidated.

 Secondly, breach is distinguished from tort in another sense that the law relating to trust is an independent part of the law which is detachable from other parts of our law. The reason is more historical. The law of torts has its origin as a part of common law where breach of trust could be redressed in the court of Chancery.

 TORT VERSUS CONTRACT

 At the present day, tort and contract are distinguished from one another in that, the duties in the former are primarily fixed by law while in the latter they are fixed by the parties themselves. 

 Agreement is the basis for all contractual obligations. “People cannot create tortious liability by agreement. Thus I am under a duty not to assault you, not to slander you, not to trespass upon your land because the law says that I am under such duty and not because I have agreed with you to undertake such duty.

 Some of the distinctions between tort and contract are given below:

 A tort is inflicted against or without consent; a contract is founded upon consent.

 In tort no privity is needed, but it is necessarily implied in a contract.

 A tort is a violation in rem (right vested in some person and available against the world at large); a breach of contract is an infringement of a right in personam (right available against some determinate person or body).

 Motive is often taken into consideration in tort, but it is immaterial in a breach of contract.

 In tort the measure of damages is not strictly limited nor is it capable of being indicated with precision; in a breach of contract the measure of damages is generally more or less nearly determined by the stipulations of the parties.

 Another discrepancy between contracts and torts is seen in the nature of damages under each. In contracts the plaintiff will be claiming liquidated damages whereas in torts he will be claiming unliquidated damages. When a person has filed a suit or put a claim for the recovery of a predetermined and fixed sum of money he is said to have claimed liquidated damages. On the other hand when he has filed a suit for the realization of such amount as the court in its discretion may award, he is deemed to have claimed unliquidated damages.

 TORT VERSUS QUASI-CONTRACT

 Quasi contract cover those situations where a person is held liable to another without any agreement, for money or benefit received by him to which the other person is better entitled. 

 According to the Orthodox view the judicial basis for the obligation under a quasi-contract is the existence of a hypothetical contract which is implied by law. But the Radical view is that the obligation in a quasi-contract is sui generis and its basis is prevention of unjust enrichment.

 Quasi-contract contract differs from tort in that:

 There is no duty owed to persons for the duty to repay money or benefit received unlike tort, where there is a duty imposed.

 In quasi contract the damages recoverable are liquidated damages, and not unliquidated damages as in tort.

 Quasi contracts resembles tort and differs from contracts in one aspect. The obligation in quasi contract and in tort is imposed by law and not under any agreement. 

 FOUNDATION OF TORTUOUS LIABILITY

 Tortious liability is a legal obligation of one party to a victim as a results of a civil wrong or injury. This action requires some form of remedy from a court system.

 Tortious liability arises from the breach of a duty primarily fixed by law this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. 

 There are different opinions among the jurist as to what constitute to the foundation of tortious liability, the following are theories arguing about the foundation of tortious liability:-

 There are two theories with regard to the basic principle of liability in the law of torts or tort. They are:

 Wider and narrower theory-all injuries done by one person to another are torts, unless there is some justification recognized by law.

 Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.

 1st Theory

 The first theory maintain that all injuries done to another person is a tort unless there is justification recognised by law. This view is supported by Sir Frederick Pollock and eminent judges and it also supported by Professor Winfield. 

 According to Professor Winfield, if I injure my neighbour he can sue me in court whether a wrong happen to have a particular name like assault, battery, deceit, slander or whether it has no such name at all and I shall be liable if I cannot prove lawful justification. 

 He added tort are infinitely various and therefore are not limited or confined and therefore a the court can create new tort as it was stipulated in Chapman v. Picker S. Gill.

 It follows that the Courts are free to create new torts whenever in their discretion they consider that this is desirable. This theory is supported by two chief arguments. The first is that some eminent Judges, both ancient and modem, have expressed this view. Thus Lord Camden said in 1762, “Torts are infinitely various, not limited or confined and therefore courts have full power to create new torts (or more consistently with judicial caution) to extend the law of torts without any baptismal ceremony for each extension.

 Professor Winfield’s second argument is based on the incontrovertible fact that the law of torts to-day is wider than it was one hundred and fifty years ago. New torts have been created to which specified names have been given. This must prove according to him that the Courts assume that they have the right to create new torts.

 But does it ? No one can deny that the Courts have created new torts by the gradual and sometimes almost imperceptible extension of old torts, but this differs fundamentally from the view that they have the right deliberately to create new ones based on a general principle of liability.

 Generally this theory leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff.

 This theory resembles the saying, my duty is to hurt nobody by word or deed.  Court’s have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. 

 Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.

 2nd Theory

 The second theory is known as Pigeon-hole theory. It resembles the ten commandments with their precise specification of sins.

 According to the theory the law of tort consist of net-set of pigeon holes, each containing a specific tort. If is the defendants wrong doesn't fit in any pigeon holes he has committed no tort. 

 Sir John Salmond is a chief supporter of this theory. He argued that just as the criminal law consist of a body of rules establishing specific offences,  so the law of tort so the law of tort consist the body of rules establishing specified injuries. 

 Whether am prosecuted for an alleged offence or sued for an alleged tort,  its for my adversary to prove that the case fills with a specific and established rule of liability and not for me to defend myself by providing that it is within some specific and established rule of justification or excuse .

 For Salmond the law must be called The Law of Torts rather that The Law of Tort.

 CRITICISM OF GENERAL LIABILITY PRINCIPAL

 Having discussed the  theories  of  Pollock, Salmond, and  Winfield,  it  is  now  time  to  tabulate  criticisms  of the  “general  liability”  principle.

 1. There  is  no  agreement  concerning  the  nature  of  this  general principle.  Pollock  says  that  it  covers  “willful,”  but  Winfield believes  that  it  includes  all  harm.

 2. There  is  no  agreement  concerning  its  origin.  Winfield  takes it  back  to the  thirteenth  century,  Pollock  says  that  it  is  modern, Allen  believes  that  it  is  still  to  come.

 3. If  this  convenient  general  principle  really  does  exist  we might  have  expected  to  find  hundreds  of  references  to  it  in doubtful  cases,  but  Winfield  cites  only  one  dictum  which  is directly  in  point.

 4. This  theory  is  based  on  a  misinterpretation  of  the  judicial process.  It  suggests  that  in  such  cases  as  Pasley  v.  Freeman, and  Rylands  v.  Fletcher,  the  Courts  were  consciously  creating  new  torts  when  in  fact  they  thought  that  they were  bringing  in  new  instances  under  established  principles.

 5. If  this  theory  were  correct  then  much  of  the  learning  in tort  law  ought  to  be  concerned  with  the  nature  of  excuses  and  of justification.  No  textbook  has, however, discussed  these  at  any length,  and  in  fact  they  are  not  even  mentioned  in  the  index  to Professor  Winfield‘s  book.

 By settling, the argument laid by the above two theories, Professor William G, simply said that "there are some general rules creating liability and some equally general rules exempting from liability. Between the two is a stretch of disputed territory with the courts as an unbiased boundary commission."

 Meaning that in an unprovided case, if the decision parses for the plaintiff, it will be not because of a general theory of liability but because the court feels that there is a case in which existing principles of liability may properly be extended .

 Summing up his investigations into the controversy, Professor Glanvile Williams says this:-

 The first school has shown that the rules of liability are very wide. The second school has shown that some rules of absence of liability are also very wide. 

 Neither school has shown that there is any general rule, whether of liability or of non-liability, to cover novel cases that have not yet received the attention of the Courts.

 In a case of first impression that is, a case that falls under no established rule or that falls equally under two conflicting rule, there is no ultimate principle directing the court to find for one party or the other.