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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
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
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...