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FACULTY OF SHARIAH & LAW

PUNTLAND STATE UNIVERSITY (PSU)


COURSE: LAW OF TORT
INSTRUCTOR: SULAYMAN MOHAMED MOHAMOUD

PSU)
GAROWE- SOMALIA

Faculty of Shariah and Law

CHAPTER ONE: OVERVIEW OF LAW OF TORT


In this chapter you will be studying definition of tort, Historical
background of tort, purpose and the scope of law of tort.
Learning objectives:
When you have completed this unit, you should be able to:

Know definition of law of tort;


Understand historical developments of Law of tort;
Indentify objective and purpose of Law of tort;
Analyze the relationship between torts and crime;

1.0 Definition of tort


law requires that people who are subject to the law observe a duty of care
towards people whom they deal with or come into contact with.
Certain things or actions within a legal system are acknowledged to be legal
wrongs. In cases where something is a legal wrong, the injured person has a
right of action against the person who was responsible for the commission
of the wrong. Such a right of action means that the injured party can bring
an action before the courts asking them to give remedy. In other words, the
injured party has proper grounds to sue the party who has committed the
wrong.
The term tort is the French in origin which is equivalent of the English
word wrong. The word tort is also derived from the Latin word tortum,
which means twisted I.e not straight and correct. Therefore a person who
commits a tort or wrong is called tort-feasor or wrong doer . His wrongful
act is called tortuous Act.
Academics have attempted to define the law of tort, but a glance at all the
leading textbooks on the subject will quickly reveal that it is extremely
difficult to arrive at a satisfactory, all embracing definition. Each writer has
a different formulation and each states that the definition is unsatisfactory.
Roger in his book Winfield and Jolowicz on tort says A satisfactory
material definition of Tort is almost certain impossible
It is not to give any precise defition of tort because the law of torts
comprises an large number of wrongs of diverse species and its
complexities. On the other hand the law ot tort is istill growing and the has
not yet reached the saturation points.
Let us now consider some of these definitions.
Rogers defined tort as Tortuous liability arises from the breach of a
duty primarily fixed by law; this duty is towards persons
generally and its breach is redressable by an action for
unliquidated damages (Rogers, Winfield & Jolowicz on Tort, 15th edn,
1998, London: Sweet & Maxwell, p.4

In a similar tone, Prof. Sir John W. Salmond in his book Salmond and
Heuston, Law of
Tort, 18th ed. P. 11, defined tort as:
A civil wrong for which the remedy is a common law action for
unliquidated
damages, and which is not exclusively the breach of contract or
the breach of trust or other merely equitable obligation.
From the above definitions, one can deduce that a tort is a breach of a civil
duty imposed by law and owed towards all persons, the breach of which is
usually redressed by an award of unliquidated damages, injunction, or
other appropriate civil remedy. Tort also is a breach of a civil duty imposed
by law, which remedy is unliquidated damages, injunction, or other
appropriate remedy. A tort is a civil wrong that is not exclusively a breach
of contract, and which is usually compensated by an award of unliquidated
damages, injunction or other appropriate remedy, the remedy of which is
mainly monetary compensation, injunction or other appropriate civil
remedy.
Historical development of tort
2.0
Many torts have developed through historical accident rather than rational
planningthe law generally, and particularly the common law, often has
these kinds of origins. The legal principles of law of tort have been
developed by case law. That is, it has developed through the decisions of the
courts in England and elsewhere over a very long period of legal history
according to the doctrine of precedent*.
The law of torts developed almost entirely in the common-law courts; that
is, statutes passed by legislatures were not the source of law that plaintiffs
usually relied on. Usually, plaintiffs would rely on the common law (judicial
decisions). Through thousands of cases, the courts have fashioned a series
of rules that govern the conduct of individuals in their non contractual
dealings with each other. Through contracts, individuals can craft their own

rights and responsibilities toward each other. In the absence of contracts,


tort law holds individuals legally accountable for the consequences of their
actions. Those who suffer losses at the hands of others can be compensated.

3.0 The purpose of the law of torts


The word tort means wrong. Any unjustifiable interference with the
right of another person may be a tort. As a part of civil law, the purpose of
the law of tort is to prohibit a person from doing wrong to another person,
and where a wrong is done, to afford the injured party, right of action in
civil law, for compensation, or other remedy, such as an injunction
directing the wrongdoer who is known as a tortfeasor to stop doing the act
specified in the court order and so forth. Damages is the monetary
compensation that is paid by a defendant to a plaintiff for the wrong the
defendant has done to him. The essential aim of the law of torts is to
compensate persons harmed by the wrongful conduct of others. The
substantive law of torts consists of the rules and principles which have been
developed to determine when the law will and when it will not grant redress
for damage suffered. Such damage takes several different forms such as
physical injury to
persons; physical damage to property; injury to reputation; and damage to
economic interests. The law of torts requires every person not to cause
harm to others in certain situations, and if harm is caused, the victim is
entitled to sue the wrongdoer for damages by way of compensation.
Monetary damages are the normal remedy for a tort. But there is another
important remedy, the injunction, which is a court order forbidding the
defendant from doing or continuing to do a wrongful act. Whether the
plaintiff is claiming damages or aninjunction, he must first prove that the
defendant has committed a tort, for the law of torts does not cover every
type of harm caused by one person to another. The mere fact that As act
has caused harm to B does not necessarily give B a right to sue A for
damages in tort, unless B can show that As act was of a type which the law
regards as tortuous, that is, actionable as a tort.

Thus, the purpose of the law of tort is to prohibit torts, and where a tort is
committed the law of tort provides a remedy for it, by an award of damages
or other appropriate relief.
The law of tort deals with a wide variety of wrongs related and unrelated.
Thus, the law of tort enforces rights and liability and provides remedy in
the areas covered by the law of tort which includes, trespass to person,
battery and negligence.
Essentially, the law of torts protects personal and property interests from
being harmed by
other persons. Everyone is under a duty not to interferes with the interests
of other persons. Where a person interferes with the interest of another
person, without legal justification or excuse, the law of tort intervenes to
apportion blame and award damages or other appropriate remedy. The
main remedies available to a person in the law of tort are several and
include:
1. Award of damages that is monetary compensation.
2. Injunction and/or:
3. Any other remedy, such as, an order to abate a nuisance, or for specific
restitution of a chattel of which the plaintiff has been dispossessed, etc.
The law of tort should be of interest to the average individual because tort is
an everyday occurrence and the law of tort provides remedy for many
common incidents of daily life. The torts which occur everyday include
trespass to person, nuisance, negligence, etc. The law of tort defines
tortuous acts, apportions blame and determines the appropriate remedy to
be granted when a tort has been committed.
The objectives of the law of tort can be summarized as follows:
1. Compensation: The most obvious objective of tort is to provide a
channel for compensating victims of injury and loss. Tort is the means
whereby issues of liability can be decided and compensation assessed and
awarded.
2. Protection of interests: The law of tort protects a persons interests in
land andother property, in his or her reputation, and in his or her bodily
integrity. Various torts have been developed for these purposes. For
example, the tort of nuisance protects a persons use or enjoyment of land,
the tort of defamation protects his or her reputation, and the tort of
negligence protects the breaches of more general duties owed to that
person.
3. Deterrence: It has been suggested that the rules of tort have a deterrent
effect, encouraging people to take fewer risks and to conduct their activities

more carefully, mindful of their possible effects on other people and their
property. This effect is reflected in the greater awareness of the need for
risk management by manufacturers, employers, health providers and
others. This is encouraged by insurance companies.
4. Retribution: An element of retribution may be present in the tort
system.
People who have been harmed are sometimes anxious to have a day in court
in order to see the perpetrator of their suffering squirming under crossexamination.
This is probably a more important factor in libel actions and intentional
torts than in personal injury claims which are paid for by insurance
companies. In any event, most cases are settled out of court and the only
satisfaction to the claimant lies in the knowledge that the defendant will
have been caused considerable
inconvenience and possible expense.
5. Vindication: Tort provides the means whereby a person who regards
himself orherself as innocent in a dispute can be vindicated by being
declared publicly to be in the right by a court. However, again it must be
noted that many cases never actually come before a court and the
opportunity for satisfaction does not arise.
6. Loss distribution: Tort is frequently recognized, rather simplistically,
as a vehicle for distributing losses suffered as a result of wrongful activities.
In this context loss means the cost of compensating for harm suffered. This
means redistribution of the cost from the claimant who has been injured to
the defendant, or in most cases the defendants insurance company.
Ultimately, everyone paying insurance or buying goods at a higher price to
cover insurance payments will bear the cost. The process is not easily
undertaken and it involves considerable administrative expenses which are
reflected in the cost of the tort system itself. There are also hidden
problems attached to the system, such as psychological difficulties for
claimants in using lawyers and the courts, and practical difficulties such as
the funding of claims which may mean that many who deserve
compensation never receive it. It has been suggested that there are
other less expensive and more efficient means than tort for dealing
with such loss
distribution.
7. Punishment of wrongful conduct: Although this is one of the
main functions of criminal law, it may also play a small part in the law
of tort, as there is a certain

symbolic moral value in requiring the wrongdoer to pay the victim.


However, this
aspect has become less valuable with the introduction of insurance.

TORTS AND CRIME


As you continue in this course, you will see that there is considerable
overlap between certain torts and certain forms of criminal liability. For
example, striking another person without his or her consent constitutes the
tort of battery. It is also a crime in all jurisdictions, and is usually also called
battery. Another example is conduct which amounts to the crime of
homicidesuch conduct is most often a form of trespass to the person as a
tort.
The basic point that you should understand at this stage is that one action,
or one course of conduct, or an inaction may lead both to civil liability and
to criminal liability. In torts we are concerned with a form of civil liability
which has the primary remedy of damages or compensation. The objectives
of the civil law in this respect are quite different from the criminal law.
Differences between criminal and civil proceedings
The State (by which we mean, loosely speaking, the institutions of
government) is always a party to criminal proceedings. The objectives of
determining criminal liability might be punishment of the offender or a
range of other social objectives, such as discouragement of this form of
conduct. The State is involved because it views the matter as serious
enough to be a community issue, in effect. There are many ways of saying
this, but it is for this reason that we talk of criminal law as involving a form
of public law*. The wrongs concerned are wrongs against society or
against the community at large.
In contrast, in civil proceedings the action is between individuals (although
the State can sometimes be a party)that is, one person alleges that
another has committed a wrong against him or her. This is what we are
concerned with in tortsa form of civil liability where the liability for one
person for a wrong done to another is raised as an issue between them.
Thus we see that tortious liability is a form of private law*. It is
concerned with the regulation of private rights. The plaintiffthe person
who has suffered injuryalleges that as a result of the wrongdoing by the
other, his or her private rights have been interfered with. Thus the injured
person seeks a remedy.
As a form of private law, the law of torts does contain some social
objectives. One such objective might be to discourage the conduct in
question. But, in contrast to public law, the primary objective for this

category of wrongs has been to protect and preserve the rights of the
individual who has suffered in some way at the hands of another. If a
person has suffered a wrong in tort, it is that individual rather than the
State who brings the action as a private action. If that individual does
nothing, then his/her right of action might lapse under the Statute of
Limitations. This focus is the opposite to a case of criminal liability, even if
the case arises from the same facts as a civil action. Moreover, even in cases
where an individual does not take civil action to recover damages, the State
can still launch criminal proceedings if the same wrong in question
constitutes a criminal offence.
One action as subject of criminal and civil proceedings
If a criminal court holds a person liable for a crime, a civil court can still
find a person liable for the commission of a tort, and vice versa. If a person
does something that constitutes a battery, for example, a criminal court
might find him/her guilty of the crime of battery while a civil court also
holds that person liable in damages for the tort of battery. Conviction of the
crime does not excuse the tort. The award of damages for the tort does not
preclude a criminal action. Likewise, the order of the actions does not
matter, and a person can still be subject to both forms of liability for the
one action.
It is important to note that criminal courts and civil courts have different
standards of proof. Civil courts require proof on the balance of
probabilities. Criminal courts have a higher standard, requiring proof
beyond all reasonable doubt. Thus a court is more likely to dismiss a
criminal charge against the person while the civil action for tort is
successful. Remember the O.J. Simpson trial where this was in effect the
result? The reverse situation (i.e. liable for crime and not liable for tort) can
also occur, but it is less common.
Think about this...

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