 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.