THE LAW OF TORTSINTRODUCTIONThe word tort is of French origin and is equivalent of the English word wrong, and the Roman law term delict. It is derived from the Latin word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked. It is commonly used to mean a breach of duty amounting to a civil wrong. Definition: a tort is defined as 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. A tort arises due to a person’s duty to others in generally which is created by one law or the other. A person who commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one, they are called joint tortfeaser. Their wrongdoing is called tortuous act and they are liable to be sued jointly and severally. The principle aim of the Law of tort is compensation of victims or their dependants. Grants of exemplary damages in certain cases will show that deterrence of wrong doers is also another aim of the law of tort.
OBJECTIVES OF LAW OF TORTS
i. To determine rights between parties to a dispute.ii. To prevent the continuation or repetition of harm e.g. by giving orders of injunction. iii. To protect certain rights recognized by law e.g. a person’s reputation or good name. iv. To restore property to its rightful owner e.g. where property is wrongfully taken away from its rightful owner.
CONSTITUENTS OF TORTTo constitute a tort or civil injury:1. There must be a wrongful act or omission.2. The wrongful act or omission must give rise to legal damage or actual damage and; 3. The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages. The wrongful act or omission may however not necessarily cause actual damage to the plaintiff in order to be actionable. Certain civil wrongs are actionable even though no damage may have been suffered by the plaintiff. 1. Wrongful act.
The act complained of should, under the circumstances be legally wrongful asregards the party complaining, i.e. it must prejudicially affect him in some legal right. This must be an act or an omission. 2. Damage.
The sum of money awarded by court to compensate damage is called damages. Damage means the loss or harm caused or presumed to be suffered by a person as a result of some wrongful act of another. Legal damage is not the same as actual damage. Every infringement of the plaintiff’s private right or unauthorized interference with his property gives rise to legal damage. There must be violation of a legal right in cases of tort. The real significance of legal damage is illustrated by two maxims namely: Injuria sine damno and Damnum sine injuria. Damnum is meant damage in the substantial sense of money, loss of comfort, service, health or the like. By injuria is meant a tortuous act. Injuria sine damno.
This is the infringement of and absolute private right without any actual loss or damage. The phrase simply means Injury without damage. The person whose right is infringed has a cause of action e.g. right to property and liberty are actionable per-se i.e. without proof of actual damage. Example: Refusal to register a voter was held as an injury per-se even when the favorite candidate won the election
Damnum sine injuriaThis is the occasioning of actual and substantial loss without infringement of any right. The phrase simply means Damage without injury. No action lies. Mere loss of money or moneys’ worthy does not constitute a tort. There are many acts, which though harmful are not wrongful, and give no right of action.i.e. damage without injury. 3. Remedy.
The essential remedy for a tort is action for damages, but there are other remedies also e.g. injunction, specific performance, restitution etc. Further, damages claimable in tort action are unliquidated damages. The law of tort is said to be a founded of the maxim- Ubi jus ibi remedium i.e. there is no wrong without a remedy.
Other elements of tortIn certain cases, the following may form part of requirements for a wrong to be tortuous. 1. Voluntary and involuntary acts: acts and omissions may be voluntary or involuntary. An involuntary act does not give rise to liability in tort. 2. Mental elements: Plaintiff may be required to show some fault on the part of the defendant. Fault here means failure to live up to some ideal standard of conduct set by law. To determine fault, the following may be proved:- a) Malice: In the popular sense, malice means ill-will or spite. In Law, it means i) intentional doing of a wrongful act and, ii) improper motive. b) Intention: i.e. where a person does a wrongful act knowing the possible consequences likely to arise, he is said to have intended that act, and is therefore at fault. c) Recklessness: i.e. where a person does an act without caring what its consequences might be, he is at fault. d) Negligence: i.e. where the circumstances are such that a person ought to have foreseen consequences of his act and avoided it altogether, he would be at fault if he bothers not. e) Motive: Motive is the ulterior objective or purpose of doing an act and differs from intention. 3. Malfeasance, misfeasance and non-feasance: ‘Malfeasance‟ refers to the commission of a wrongful act which is actionable per-se and do not require proof of intention or motive. „Misfeasance‟ is applicable to improper performance of some lawful act, for example, where there is negligence. ‟Non-feasance‟ refers to the omission to perform some act where there is an obligation to perform it. Non-feasance of a gratuitous undertaking does not impose liability, but misfeasance does.
Distinctions between Contract and Tort1. In a contract the parties fix the duties themselves whereas in tort, the law fixes the duties. 2. A contract stipulates that only the parties to the contract can sue and be sued on it (privity of contract) while in tort, privity is not needed in order to sue or be sued. 3. In the case of contract, the duty is owed to a definite person(s) while in tort, the duty is owed to the community at large i.e. duty in- rem. 4. In contract remedy may be in the form of liquidated or unliquidated damages whereas in tort, remedies are always unliquidated.
Distinctions between Tort and Crime1. In tort, the action is brought in the court by the injured party to obtain compensation whereas in crime, proceedings are conducted by the state. 2. The aim of litigation in torts is to compensate the injured party while in crime; the offender is punished by the state in the interest of the society. 3. A tort is an infringement of the civil rights belonging to individuals while a crime is a breach of public rights and duties, which affect the whole community. 4. Parties involved in criminal cases are the Prosecution verses the Accused person while in Torts, the parties are the Plaintiff versus the Defendant.
GENERAL DEFENSES IN TORTGenerally, a plaintiff has to prove his case in a court of law and if he does so successfully, judgment is passed against the defendant. The defendant on the other hand may defend the case against himself successfully, thus making the plaintiff’s action fail. There are some general defenses which may be taken to tortuous liability. 1. Volenti Non fit Injuria
The general rule is that a person cannot complain for harm done to him if he consented to run the risk of it. For example a boxer, foot baler, cricketer, etc. cannot seek remedy where they are injured while in the game to which they consented to be involved. Where a defendant pleads this defense, he is in effect saying that the plaintiff consented to the act, which he is now complaining of. It must be proved that the plaintiff was aware of the nature and extent of the risk involved. There are however some limitations to the application of the maxim of volenti non fit injuria: -First, no unlawful act can be legalized by consent, leave or license. -Secondly, the maxim has no validity against an action based on breach of statutory duty. -Thirdly, the maxim does not apply in rescue cases such as where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection as in a member of his family, or is a mere stranger to whom he owes no such special duty. -Fourthly, the maxim does not apply to cases of negligence.
-Lastly, this maxim does not apply where the act of the plaintiff relied upon to establish the defense under the maxims the very act which the defendant was under a duty to prevent. 2. Inevitable Accident.
This means an accident, which cannot be prevented by the exercise of ordinary care, caution or skill of an ordinary man. It occurs where there is no negligence on the part of the defendant because the law of torts is based on the fault principle; an injury arising out of an inevitable accident is not actionable in tort. 3. Vis Major (ACT OF GOD)
This is also an inevitable accident caused by natural forces unconnected with human beings e.g. earthquake, floods, thunderstorm, etc. 4. Necessity:Where intentional damage is done so as to prevent greater damage, the defense of necessity can be raised. Sometimes a person may find himself in a position whereby he is forced to interfere with rights of another person so as to prevent harm to himself or his property. The general rule is that a person should not unduly interfere with the person or property of another. It is only in exceptional cases of imminent danger that the defense of necessity maybe upheld. It is based on the principle that the welfare of the people is the supreme law. Whether the defense of necessity would extend to inflicting injuries to the person is debatable. 5. Self Defense
Everyone has a right to defend his person, property and family from unlawful harm. A person who is attacked does not owe his attacker a duty to escape. Everyone whose life is threatened is entitled to defend himself and may use force in doing so. The force used must be reasonable and proportionate to that of the attacker. Normally, no verbal provocation can justify a blow. An occupier of property may defend it where his right or interest therein is wrongfully interfered with. However, in protecting one’s property, he cannot do an act which is injurious to his neighbour; neither can he adopt a course which may have defect of diverting the mischief from his own land to the land of another person which would otherwise have been protected. 6. Mistake
The general rule is that a mistake is no defense in tort, be it a mistake of law or of fact. Mistake of fact, however, maybe relevant as a defense to anytort in some exceptional circumstances e.g. malicious prosecution, false imprisonment and deceit. Thus where a police officer arrests a person about to commit a crime but the person arrested turns out to be innocent the police officer is not liable. Mistake however, cannot be a defense in actions for defamation.
7. Statutory AuthorityWhen the commission of what would otherwise be a tort, is authorized by a statute the injured person is remediless, unless so far as the legislature has thought it proper to provide compensation to him. The statutory authority extends not merely to the act authorized by the statute but to all inevitable consequences of that act. But the powers conferred by the legislature should be exercised with judgment and caution so that no unnecessary damage is done, the person must do so in good faith and must not exceed the powers granted by the statute otherwise he will be liable. 8. Novus Actus Interveniens.
This is when a chain of events results from a tort so that the loss suffered is not within the scope of those that would naturally occur from the first tort. To refer to a novus actus interveniens is in fact merely another way of saying that the loss was not reasonably foreseeable. This however, does not become an excuse if: –
a). An act done in the agony of the moment created by the defendants tort. E.g. If you threw a lighted firework into a crowded market place. Several people threw the firework from their vicinity until it explodes on another‟s face. b). Where the intervening act is a rescue.
9. 9 Contributory negligenceThe defendant may rely upon this defense if the plaintiff is also to blame for his suffering. The defendant must prove that: – The plaintiff exposed himself to the risk by his act or omission. – The plaintiff was at fault or negligent.
– The plaintiff’s negligence or fault contributed to his suffering. Thisdefense does not absolve the defendant from liability. It merely apportions compensation of damages between the parties who contributed to the loss. This defense is not available if the plaintiff is a child of tender age.
TRESPASSTrespass as a wrong has a very wide application. It could mean unlawful presence in another’s closure or land or premises, offence to the body of a person or even mean wrongful taking of goods or chattels. To constitute the wrong of trespass, neither force nor unlawful intention not actual damage nor breaking of an enclosure is necessary. Every invasion of private property, be it ever so minor is a trespass. Trespass may take any of the following three forms:
a) Trespass to land.b) Trespass to person, and;c) Trespass to goods.
TRESPASS TO LANDTrespass to land may be committed by any of the following acts: – a) Entering upon the land or property of the plaintiffb) Continuing to remain in such land or property on expiry of license i.e. Permission to be in it. c) Doing an act affecting the sole possession of the plaintiff, in each case without justification. d) By throwing objects into another’s land.
e) By using the right of entry for purposes other than for which it was allowed. Generally, trespass to land is a civil wrong. However it may give rise to criminal proceeding; It is important to note that trespass to land is actionable per se, that is, without proof of special damage. In other words, it is not a defense that no damage has been caused by the trespass. Remedies for Trespass to land.
1. Defense of property: He may have to use force till he gets possession but not unnecessary amount of force of violence. This is called remedy of ejection. 2. Expulsion of trespasser especially in case of continuedtrespass. 3. Distress damage feasant: He may seize and retain them impounded as a pledge for the redress of the injury sustained. 4. Damages: This means recovery of monetary compensation from the defendant. 5. Injunction: This may be obtained to ward off a threatened trespass or to prevent a continuing trespass. 6. Action for recovery of Land: In case the plaintiff is wrongfully dispossessed of his land he can sue for the recovery of the land from the defendant. Defenses against Trespass on land.
i. Statutory authority: Where the law allows entry upon land. ii. Entry by license: Where entry is authorized by land owner, unless authority is abused. iii. Adverse possession: Where land has been peacefully possessed for over 12 years without disturbance. iv. Act of Necessity: Example is entry to put off fire for public safety is justifiable. v. By order of court of law: This may be in execution of court order e.g. by court brokers. vi. Self-defense: a trespasser may be excused as having been done in self-defense or in the defense of a person’s goods, chattels or animals. vii. Re-entry on land: A person wrongfully dispossessed of land may re-take possession of it if it‟s possible for him to do so peacefully and without the use of force. In this case, he will not be liable for trespass to land. viii. Re-taking of goods and chattels: if person unlawfully takes the goods and chattels of another upon his own land, he impliedly licenses the owner of the goods to enter his land for the purpose of recaption.
TRESPASS TO PERSONAny direct interference with the person (body) of another is actionable in the absence of any lawful justification. Trespass to person includes assault,battery andfalse imprisonment.AssaultAssault means conduct or threat to apply violence on the person of the plaintiff in circumstances that may create apprehension that the latter is in real danger. It is committed when a person threatens to use force against the person of another thus putting the other person in fear of immediate danger. Examples: Shaking of fist, pointing of a gun menacingly at another, letting go a dog fiercely etc. It is important to note that not every threatamounts to assault. There must be the means of carrying out the threat and the capacity to effect the threat. The person threatened must be put in fear of immediate danger. An assault is a tort as well as a crime. The intention as well as the act makes assault. Mere words do not amount to assault unless it gives the user‟s gesture such a meaning as may amount to assault. Battery
Battery means the actual application (use) of force against the person of another without lawful justification. It is immaterial whether the force is applied directly or indirectly to the person. But there must be actual bodily contact between the plaintiff and the defendant. Examples: – striking of another person or touching another person in a rude manner, pouring water on or spitting on another person. Assault and battery is actionable per-se (damage does not have to be proved). False Imprisonment
False imprisonment means total restraint or deprivation of the liberty of a person without lawful justification. The duration of the time of detention is immaterial. False imprisonment may be committed even without the plaintiff’s knowledge e.g. by locking him up in his bedroom while he is asleep and then reopening the door before he has awoken. In such a case the plaintiff may still sue. It is not however necessary that the person’s body should be touched. A person is not only liable for false imprisonment when he directly arrests or detains the plaintiff, but also when he actively promotes or causes the arrest or detention of the person. Defenses to assault battery & false imprisonment
a). Volenti non-fit injuria: A person who has voluntarily consented to come into actual bodily contact with another e.g. in sports, etc cannot later complain against another person who touches him in the course of playing the game. b). Private defense: A person is within his legal rights to defense himself, his property or his family. But he must use reasonable force in doing so. c). Legal authority: A police officer has statutory authority to arrest a person in the preservation of public peace. Here reasonable force may be used to effect such arrest. d). Forceful entry; The rightful owner of property is entitled to use reasonable force to prevent forcible entry on his land or to repossess his land or goods, which are wrongfully in thepossession of another. e). Parental authority: People such as parents, teachers, etc can inflict reasonable punishment for the correction and benefit of the children. Thus a parent exercising parental authority can chastise or even lock-up a child reasonably without being guilty of assault, battery or false imprisonment , nor would a school-teacher. TRESPASS TO GOODS
A person can sue for trespass to goods where there is wrongful interference with goods, which are in his possession. Such interference includes wrongful conversion, actual taking of or a direct and immediate injury to the goods. The tort of trespass to goods is meant to protect personal property. To constitute the tort of trespass to goods, the plaintiff must show: – 1. That at the time of trespass, he had the possession of the goods. 2. That his possession had been wrongfully interfered with or disturbed. Trespass to goods are of three categories namely: –
1. Trespass to chattels.2. Goods Detenue and;3. Conversion.Trespass to ChattelsIt means interference with goods, which are in the actual or constructive possession of the plaintiff. It may involve: – Removal of goods from one place to another,- Using the goods or;- Destroying or damaging the goods wrongfully.For an action to be sustainable:- The trespass must be direct.- The plaintiff must be in possession of the chattel at the time of the interference. – The tort is actionable per-se.DetenueThis means wrongful withholding or detention of goods from the person entitled to their immediate possession. For example: If A lends his book to Band B refuses, to return it to A, A is said to have committed the tort of Detenue. Conversion
This means dealing with goods in a manner that is inconsistent with the rightof the person in possession of them. This tort protects a person’s interest in dominion and control of goods. The plaintiff must be in possession or have the right to immediate possession. For example: If A intentionally sells B’s goods to C without any authority from B, A is guilty of conversion. Acts of conversion may be committed when property is wrongfully taken, parted with, sold, retained, destroyed or the lawful owner’s right is denied. Defenses to trespass to goods.
Limited defenses are available to a defendant against a wrong to goods. The defendant, however, can claim the right of lien. He may also claim other general defenses like statutory or judicial authority. Remedies to trespass to goods.
i. Recaption: The plaintiff can recapture his goods that have been wrongfully taken away from him provided he uses reasonable force. ii. Order for specific restitution: The court may also order for specific restitution of the goods where damages is not adequate a remedy. iii. Damages: The plaintiff is entitled to claim the full value of the goods and damages for any inconvenience suffered by him.
OCCUPIERS LIABILITYAt common law, an occupier owns a common duty of care to his invites or invitee while within their premises and is generally liable for any injury to them or damage to their goods by reason of condition to their premises. The law relating to occupiers liability in Kenya is contained in the Occupiers Liability Act Cap 34 laws of Kenya. The object of the Act was to amend the law relating to liability of occupiers and to others for injury or damages resulting persons or goods lawfully on any land or other property. Under the Act, an occupier owes a common duty of care to all invitees and their goods. However the common duty of care may be modified or restricted by agreement. The occupier is not liable where the accident occurs through the defective work of an independent contractor provided he can establish that the contractor was efficient as far as he was able and that he had inspected the work done. Defenses
An occupier may escape liability if the injury or damage is occasioned by danger of which the occupier had warned the invitee. The occupier may escape liability in respect of any damages caused to the invitee if occasioned by the fault of an independent contractor. The common duty of care does not impose on an occupier any obligation in respect of risks willingly accepted by the invitee. The occupier owes no common duty of care to trespassers and is not liable for any injury or damage they may suffer while in his premises.
NEGLIGENCENegligence means the breach of a duty caused by the omission to do something, which a reasonable man would do, or doing of something, which a prudent and reasonable man would not do. Negligence consist of neglect to use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect, the person has suffered injury to his person or property. The plaintiff suing under tort of negligence must prove that: 1. The defendant owed him a duty of care,
The circumstances must be such that the defendant knew or reasonably ought to have known that acting negligently would injure the plaintiff. A road user owes other users a legal duty of care. An inviter owes his invitees a legal duty of care. A manufacturer of products owes a legal duty of care to consumers. As a general rule, every person owes his neighbor a legal duty of care. The standard of care expected of the defendant is that of a reasonable man. This is a man of ordinary prudence. A reasonable person is an objective stand created by law for all circumstances. Where professionals or experts are involved, the standard of care is that of a reasonably competent expert in that field. There are some circumstances however where not even a reasonable person could have foreseen the plaintiff suffering any loss, in which case, there is no liability upon the person who has committed the injurious act. 2. There has been a breach of that legal duty of care.
The plaintiff has to prove that there was a duty imposed by common law, statute or otherwise, upon the defendant and that the defendant was in breach of this duty. However, at certain times, negligence is presumed without proof of breach of duty by the plaintiff. This is in the case ofres-ipsa loquitor. RES IPSA LOQUITOR
As a general rule, the burden of proving negligence lies with the plaintiff. He must prove that the defendant owed him a duty of care, that the defendant has breached that duty and that he has suffered damage. However, in certain cases, the plaintiff’s burden of proof is relieved by the doctrine of res ipsa loquitor. Where it is applicable Res ipsa Loquitor means that ‘thing or facts speaks for themselves’. This for example, occurs where an accident happens in circumstances in which it ought not to have occurred e.g. a car traveling on a straight road in clear weather and good visibility suddenly swerves off the road and overturns, where a barrel of flour suddenly drops from a warehouse, etc. Such an accident ought not to have occurred except for the negligence of the defendant. Res ipsa loquitor is a rule of evidence and not of law. It merely assists the plaintiff in proving negligence against the defendant. Before it can be relied upon, three conditions must be satisfied, namely: a) The thing inflicting the injury must have been under the control of the defendant or someone whom he controls. b) The event must be such that it could not have happened without negligence and; c) There must be no evidence or explanation as to why or how the event occurred, as the accident is such as in the ordinary course of things does not happen if those who have the duty use proper care. 3. Damage:
For the plaintiff to succeed in claim of Negligence, he must prove that he suffered harm, loss or prejudice, unless this is presumed as in the case of Injuria sine damnum. No damage, no negligence.
Defenses to Negligence1. Contributory negligence: This defense is available to the defendant in circumstances in which the plaintiff is also to blame for his suffering. The effect of this defense is to reduce the amount recoverable by the plaintiff as damages by the extent of his contribution. Liability is apportioned between the parties. 2. Volenti non fit injuria: This is the doctrine of voluntary assumption of risk. 3. Statutory authority: The defendant must prove in this defense that he acted in accordance with the provisions of the Act.
VICARIOUS LIABILITYVicarious liability means the liability of one person for the torts committed by another person. The general rule is that every person is liable for his own wrongful act. However, in certain cases a person may be made liable for wrongful acts committed by another person. For example: An employer may be held liable for the tort of his employees. Similarly, a master is liable for any tort, which the servant commits in the course of his employment. The reason for this rule of common law is that:
As the master has the benefit of his servant’s service he should also accept liabilities. The master should be held liable as he creates circumstances that give rise to liability. The servant was at mere control and discretion of the master. Since the master engages the servant, he ought to be held liable when gagging a wrong person. The master is financially better placed than the servant.
It must be proved that a person was acting as a servant and that the said tort was committed in the course of his employment before a master can be sued for a tort committed by his servant. MASTER AND SERVANT A servant means a person employed under a contract of service and acts on the orders of his master. The master therefore controls the manner in which his work is done. The concept of vicarious liability is based on the principle of equity that employee is normally people of meager resources and it is therefore only fair that the injured person is allowed to recover damages from the employers. Therefore a master is liable for the torts committed by his servant. To prove liability under master-servant relationship the servant must have acted in the course of his employment A master is liable whether the act in a question was approved by him or not. It is immaterial that the alleged act was not done for the benefit of the master. But the master is not liable for torts committed beyond the scope of employment. INDEPENDENT CONTRACTOR
An independent contract means a person who undertakes to produce a given result without being controlled on how he achieves that result. These arecalled contract for service. Because the employer has no direct control of him, he (the employer) is not liable for his wrongful acts. a) However, there are certain cases (exception) under which the employer may still be liable. These are: – a). Where the employer retains his control over the contractor and personally interferes and makes himself a party to the act, which causes the damage. b) b). Where the thing contracted is in itself a tort.
c) c). Where the thing contracted to be done is likely to do damage to other people’s property or cause nuisance. d) d). Where there is strict liability without proof of negligence
STRICT LIABILITYStrict liability means liability without proof of any fault on the part of the wrongdoer. Once the plaintiff is proved to have suffered damage from the defendant’s wrongful conduct, the defendant is liable whether there was fault on his part or not. Strict liability must be distinguished from absolute liability. Where there is absolute liability, the wrong is actionable without proof of fault on the part of the wrong-doer and in addition, there is no defense whatsoever to the action. Where there is strict liability, the wrong is actionable without proof of fault but some defenses may also be available. Defenses
i. Acts of God: Act of God is a good defense to an action brought under the rule. ii. Plaintiffs’ Fault: If the escape of the thing is due to the fault of the plaintiff, the defendant is not lia