A tort is an act of omission that gives rise to injury/harm to another and consists to civil wrong for which

a court impose liability outside the provision of a contract or written law.

Differences between tort and a contract

Tort Contract
Duty is fixed by law Duty is fixed by parties involved
Duty is owned to the community Duty is owned by the parties involved and not the
world as of tort
Remedies are few Remedies are wider

tort crime
Private disputes between individuals Public offense against society
Aim is to compensate injured party Aim is to protect the society from harmful acts
Plaintiff vs defendant Prosecutor vs accused
Standard of proof is preponderance of evidence Standard of proof is much higher and beyond a
reasonable doubt
Example of a tort is defamation, negligence, Example of a crime is murder
nuisance, trespass e.t.c.

Key words

I. Damage and damages; damage is the injury or harm caused while damages is the
compensation made/ sum of money awarded by the court to compensate harm incurred.
Legal damage and actual damage (special) - injuries (general)
II. Tortfeasor; a person(s) who has committed a tort.
III. Mistake of fact; happens when one is prosecuted having done no wrong.
IV. Injuria sine damnum (Ashby v white); an injury or violation of a right without any
accompanying actual damage or loss. Signifies a situation where a person's legal rights are
infringed upon, even though no tangible harm or loss has been suffered.
(Injuria- torturous act, damnum-damage, sine-without)
V. Ubi jus ibi remedium; where there is a right there is a remedy.
(mayor of Bradford v pickles, mogul steamship v McGregor, English grammar v school
cases)
Proofs by the plaintiff in the above cases;
a. Malice- intentional act of doing sth. Wrong.
b. Fault (motive)
c. Intention
d. Negligence

Objectives of a tort;

1. aims to strike a balance between individual rights and interests of the society.
2. Prevent repetition/continuation of harm by giving conjunction orders.
3. Restore property to its rightful owner
Types of torts

A. NEGLIGENCE

Negligence is the omission/failure to do what a reasonable/prudent man could do. (case law- Anderson
Blyth vs Birmingham waterworks (1856))

Occurs when a person suffers when a person harm due to another man’s carelessness.
Elements of negligence as a tort:
1. legal duty of care- duty to take reasonable care to avoid acts/omissions *reasonably
foreseeable* likely to cause injury to your neighbor.
NB: a neighbor is anyone likely to be affected by actions/omissions
 Neighbor principle “Donoghue vs Stevenson (1932)”
 Existence is based on;
a. Foreseeability
b. Proximity
c. Fair, just and reasonable
2. breach of duty of care
a breach of duty of care is determined after the court looks at
a. degree of risks involved
b. cost of precautions
c. potential/seriousness of injuries
3. harm/injury or damage to the plaintiff
the plaintiff has to prove injury suffered, loss or damage as a result of the defendant actions.
4. Causation (cause in fact)
The plaintiff should show that the defendant’s breach of duty was the cause of the plaintiffs
injury and losses.
NB: if the action caused the plaintiff injury through and unexpected act of nature, then it
would be deemed unforeseeable making the defendant unaccountable.

RES IPSA LOQUITUR (THINGS SPEAK FOR THEMSELVES)- Scott v London St. Katherine’s Dock
I. No evidence is required to prove negligence.
II. Such things don’t regularly occur when proper care is taken.
III. Instrument that causes harm was in a good condition to be controlled by the defendant.

IMPLICATIONS OF RES IPSA LOQUITUR

I. Shift of burden of proof to defendant.

II. Plaintiffs rely on circulation evidence
III. Prima facie- accepted as correct until proved otherwise.

DEFENSES OF TORT OF NEGLIGENCE

1. Volenti non fit injuria- the plaintiff knew the risks involved.
2. Statutory authority- harm caused is in line with the available legislature.
3. Contributory negligence- the plaintiff also took part in creating the damage.

REMEDIES FOR NEGLIGENCE INCLUDE;

 A. Injunctions
B. Damages (unliquidated)
C. Specific performance
D. Reinstitution

Defenses in tort law

I. Volenti non fit injuria- implies that if a person willingly exposes themselves to a risk, they cannot
claim compensation for any resulting harm. Assumes the person voluntary accepted the risk.
(smith v Charles baker & sons (1891), kimjey v tanker Mombasa)

Limitations of volenti non fit injuria; 1. Unlawful act, breach of statutory duty (act of negligence),
rescue operations, defense doesn’t absolve the defendant of liability if they have acted recklessly
or intentionally beyond what the plaintiff may have reasonably expected.

II. Inevitability

Harm or injury caused was inevitable irrespective of defendant actions. Argues that defendant’s
action did not cause harm directly and couldn’t be prevented by any ordinary man. There is no
negligence. _ _ _ *THIS SHOWS THAT LAW OF TORT IS BASED ON FAULT PRINCIPLE* (Stanley v
Powell(bullet))

III. Force majeure (force of God)

Unforeseeable events beyond defendants’ control which causes harm.

Occurs due to exclusive actions of God (Nicholas v Marshal)

IV. Necessity
Defense occurs when a person takes action to prevent grater harm. Involves choosing the lesser
or two evils and acting reasonably in an emergency. (Southwark London borough council v
William, 1971(fire case))
*NECESSITY MUST BE IMMINENT AND ACTION TAKEN MUST BE PROPORTIONATE TO THE
HARM PREVENTED*

V. Self defense
Use of reasonable force to protect oneself from imminent danger. (Beckford v R, 1988).
Force used should be proportionate to threat faced and defendant must reasonably believe the
force is necessary to prevent harm. (res Ipsa loquitor could be key)
VI. Mistake
It can be a defense in situations of;
a. Malicious prosecution
b. False imprisonment

Types: -mistake of fact, mistake of law, unilateral mistake

VII. Statutory authority

 It means which has been derived directly from the legislature and any person working under the
statutory authority has caused harm to the other person then that will not come under any
wrong and no action can be taken on that.
The person that is remediless “injuria sine damnum”. It serves as a defense in tort when a
defendant’s actions precautionary measure.
Legislature should make judgement with clear precautions. (Vaughan v Taff Vale Railway
Company)
 It’s based on a fact that there is a clear authority, proper existence of authority and
non-excessive use of authority.
VIII. Novus actus intervalence
When a chain of events occurs due to a tort the first person to cause the harm is held liable with
an exception that;
1. act done in agony moment created by defendant action (e.g. find people stoning another
and you decide to join them)
2. where intervening act is rescue (one may be hurt while rescuing)
IX. Contributory negligence
This bars the plaintiff from recovering for the negligence of others if they too were negligent in
causing the harm. The defendant should be able to prove that the plaintiff exposed him/herself
to the act of the defendant and that the plaintiff was at fault/negligent.
*IT DOES NOT ABSOLVE DEFENDANT FROM HIS/HER ACTIONS* -minors are excluded in this.
X. Occupiers’ liability
An occupier owns a common duty of care (reasonable man would be safe to use the premises in
which he/she is invited to) to a person on their property either visitors or trespassers.
The common duty of care here can be nullified by agreement; visitor and license (no
compensation).
The level of care varies from; license-social guests, trespassers- ‘no duty of care’ and invitees-
‘highest duty of care’.
Considerations are if; -
1. there was a child involved.
2. the invitee was exercising his/her calling under the act.

The occupier is not liable where independent contractor is negligent (e.g. Solai dam), where a
warning had been issued and where the person invited accepts the will.

XI. Vicarious liability

 Master servant relationship Liability=blame
 Servant acted in the course of his employment
 Master isn’t liable if act is out of scope of work
Master is vicariously liable to his/her servant if the act was under contract and in course of work
whether the servant is negligent or not.
A servant is liable for harm caused to the master.
The servant is held liable since he/she is a professional (independent contractor).