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Law of Torts - Nature and Functions

Numerous attempts have been made to define “a tort” or tortious liability with varying degrees of lack of success.

According to Kodilinye

A TORT may be defined broadly as a civil wrong involving a breach of a duty fixed by the law, such duty being owed to persons generally and its breach being redressible primarily by an action for damages.

Winfield’s definition of tort was as follows:

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.

In a similar tone, Prof. Sir John W. Salmond in his book Salmond and Heuston, Law of Tort, , 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 un-liquidated damages, injunction, or other appropriate civil remedy.

At a general level, it can be said that tort is concerned with the allocation of responsibility for losses which are bound to occur in our society and it aims to compensate persons harmed by the wrongful conduct of others. Tort is mainly based on case law and the substantive law of torts consists of the rules and principles which have been developed to determine when the law will and will not grant redress for damages suffered. Tort exhibits what the acceptable standard of behaviour in society is and it projects the expectations we have about life. Monetary damages or compensation is the commonest/normal remedy for a tort but there is also the remedy of injunction which is sometimes granted by the courts.

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.

A summary of the objectives of torts

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 person’s interests in land and other 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 person’s 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 cross-examination. 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 or herself 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 re- distribution of the cost from the claimant who has been injured to the defendant, or in most cases the defendant’s 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.

The rule in Smith v. Selwyn

The common law rule in Smith v. Selwyn states that where a civil wrong is also a crime, prosecution of the criminal aspect must be initiated, or reasons for default of prosecution given, before any action filed by the plaintiff can be heard. Thus, it was the position that where a tort was also a crime, the filing of criminal proceedings against the wrongdoer, preceded the filing of a civil suit by the aggrieved party. This is known as the rule in Smith v. Selwyn When the rule in Smith v. Selwyn was not observed, the civil action by the plaintiff could not proceed and it was bound to fail as long as the defendant had not been prosecuted or a reasonable excuse given for the lack of prosecution.

Formerly, the proper course when a civil suit was filed, was for the court to stay proceeding in the civil action until the criminal prosecution was finally completed.

Exception to the rule in Smith v. Selwyn

The right of an aggrieved party to sue in tort is not affected, once the matter was reported to the police and the police in the exercise of their discretion decide not to press criminal charges.

In Nwankwa v. Ajaegbu (1978) 2 LRN 230. The plaintiff reported an assault. The police did not bring criminal proceedings. The plaintiff then brought civil action claiming damages for assault and battery. The defence contended that the civil action could not proceed as criminal charges had not been filed by the police. The court held that the civil action was not caught by the rule in Smith v. Selwyn which required that where a case discloses a felony, the civil action should be stayed until criminal proceedings were concluded. The plaintiff having reported the assault to the police, whose duty it was to prosecute, if the police in their discretion failed to press charges, it was not the fault of the plaintiff. He was free to initiate civil proceedings for remedy.

Abolition of the rule in Smith v. Selwyn

However, the rule in Smith v. Selwyn which has been abolished in Britain, also no longer apply in Nigeria. In view of the fact that the rule is a breach of the Nigerian Constitution and other statutes.

The Nigerian Constitution The rule in Smith v. Selwyn for instance breaches sections 6(6)(b), 17(2)(e), 46(1) and 315(3) of the 1999 Constitution, which provisions forbid the blocking of access to court. The above mentioned provisions of the Nigerian Constitution guarantee right of access to court for every person to institute action for the protection, or determination of his civil rights and obligations according to law. The applicability of the rule in Smith v. Selwyn in Nigeria was considered by the Court of Appeal in the case of Veritas Insurance Co. Ltd. V. Citi Trust Investments Ltd. (1993) 3 NWLR Pt. 281, P. 349 at 365 CA. where it held that in view of the provisions of the Nigerian Constitution, Criminal Code Act and the Interpretation Act, the rule no longer applies in Nigeria.

Tort distinguished from other legal conceptions

Tort and crime

The main purpose of criminal law is to protect the interests of the public at large by punishing those found guilty of crimes, generally by means of imprisonment or fines and it is those types of conduct which are most detrimental to society and to the public welfare which are treated as criminal. A conviction for a crime is obtained by means of a criminal prosecution, which is usually instituted by the State through the agency of the police.

A tort on the other hand, is a purely civil wrong which gives rise to civil proceedings, the purpose of such proceedings being not to punish wrongdoers for the protection of the public at large, but to give the individual plaintiff compensation for the damage which he has suffered as a result of the defendant’s wrongful conduct.

Another important difference between tort and crime in Nigeria is that the entire criminal law has been codified in the form of the Criminal Code of Southern Nigeria and the Penal Code of the Northern states, whereas the law of torts remains a creature of judicial precedent modified here and there by statute.

Notwithstanding the fundamental differences between criminal and tortious liability, it is significant to note that there are some torts, particularly trespass, have strong historical connections with the criminal law. So the same act may be both a tort and a crime, for example, assault, false imprisonment and defamation are both torts and crimes. See sections 252, 365, 373-381 of the Criminal Code and sections 263, 264 and 391 of the Penal Code.

There are in addition several examples of conduct which are both criminal and tortuous. If A steals B’s bicycle, he will be guilty of stealing (a criminal offence, see sections 382-388 of the Criminal Code and sections 286-290 of the Penal Code), and at the same time be liable to B for the tort of conversion. Again, if A wilfully damages B’s goods, he is liable for the crime of malicious damage to property (see section 451 of the Criminal Code and section 326 of the Penal Code) and for the tort of trespass to chattels.

Finally, an important distinction between tort and crime is that, to succeed in a criminal trial, the prosecution must prove its case beyond reasonable doubt. The same does not exist in civil actions because in an action in tort the plaintiff need only prove his case upon a balance of probabilities. However, where a tort is also a crime, the criminal standard of proof is under the Evidence Act is what is also required in the civil trial. In other words, whenever the commission of a crime is directly in issue in any civil or criminal proceedings, it must be proved beyond reasonable doubt. It is therefore easier for a plaintiff to succeed in tort than for the prosecution to secure a conviction in crime.

Tort and contract

The main distinction between tort and contract is that in tort the duties of the parties are primarily fixed by law, whereas in contract they are fixed by the parties themselves. In other words, contractual duties arise from agreement between the parties, tortious duties are created by operation of law independently of the consent of the parties. Even this distinction, however, is by no means always valid, for today in many cases the content of contractual duties is also fixed by the law.

Secondly, the duties owed by two contracting parties towards one another are frequently not duties which they expressly agreed upon but obligations which the law implies such as the terms implied under the Sale of Goods Law 1958 or under the Hire Purchase Act 1965. The core of contract is the idea of enforcing promises whereas tort aims principally at the prevention or compensation for harm, and this difference of function has two principal consequences; First, that a mere failure to act will not usually be actionable in tort, secondly, that damages cannot be claimed in tort for a “loss of expectation”, that is, damages in contract put the claimant in the position he would have been in had the contract been performed, whereas damage in tort put him in the position he would have been in had the tort not been committed.

There are some areas of overlap between contract and tort; for instance, a victim of fraudulent misrepresentation in contract may sue for the tort of deceit, and a victim of negligent misrepresentation may sue for the tort of negligence. Also, there are some concepts, which are common to both contract and tort, for example, the concept of remoteness of damage and of agency. They also both award “damages”.

Tort and breach of trust

Tort and trust are civil laws. A trust arises in any situation where one or more persons hold property for the benefit of another person or objects. However, there is little or no difference between the legal rights and liabilities of tort and trust. The only real difference is mainly that of history; that the law of tort arose or developed from common law, whilst the law of trust grew from the doctrine of equity in the Court of Chancery and thus liability in tort and liability for breach of trust are fundamentally different in that whereas tort is a common law concept, trust is a purely equitable creation and was never recognized by the common law.

A claim for breach of trust is liquidated and is measured by the loss caused to the trust estate, whereas a claim for damages in tort is unliquidated. A claim for breach of trust is not properly regarded as a claim for damages at all, for damages is a purely common law concept. It is thus appropriate to regard the concept of breach of trust as belonging to an entirely separate system of law and having no connection with tort.

NB: Tort, crime, contract and trusts are not exclusive; a single conduct can give rise to liability in all these areas of law. Thus, where a trustee steals trust funds or misappropriates trust property, he may be liable for breach of trust under civil law. The trustee may also be successfully prosecuted for breach of trust in criminal law. Where the trust was constituted by a written instrument, there may be liability for contractual failure to carry out the trust duties. Additionally, there may be liability in tort for detinue, or conversion of the trust property.

Where a single wrongful act gives rise to a right of claim in several areas of law, it is advisable to bring the action in that one or more areas of law where it will yield the desired remedy. Therefore, the party who is suing should rely upon that aspect of law which puts him in a more favourable position.

Damage and liability in tort

Often times, for a defendant to be held liable for a tort, the plaintiff must have suffered damage as a result of the conduct of the defendant. Where damage has been proved by a plaintiff, then the test of reasonable foreseeability or remoteness of damage will be applied to determine the extent, scope or amount of damage for which the defendant will be held liable and ordered to pay to the plaintiff.

However, because damage does not always lead to liability, three principles exist with respect to damages. These are:

Damage without legal injury: damnum sine injuria

Damage without a legal injury or damnum sine injuria is a loss or damage which does not have a legal remedy. Damage without a legal injury is where a wrong or damage has been done to a person, nevertheless, the person has no right of action to recover compensation because no legal wrong has been committed. It is a damage suffered without the breach of a legal right. Thus, the mere fact that a person has been harmed does not entitle him to maintain an action, unless a legal wrong has been done to him.

For a suit to succeed, the damage must result from a breach of a legal right of the plaintiff. Where a damage is suffered without the breach of a legal right, it is known in Latin as damnum sine injuria that is, damage without injury. It is for the courts to determine what constitutes legal injury.

Social and commercial life would become intolerable if every kind of harm were treated as a legally redressible injury; For example business competition which drives a trader out of business is not actionable in tort, since the well-being of the society depends upon the right of every person to compete in business. In some cases, the harm complained of may be too trivial or too indefinite or incapable of proof; in others, policy may require that the courts should balance the respective interests of the plaintiff and the defendant, and that the defendant’s interest should prevail.

In others, harm may be caused by the defendant’s exercising his own rights, or where he does damage to the plaintiff in order to prevent some greater civil damage befalling himself. In other cases, the harm caused may be protected by some other branch of law, such as where a statute or the criminal law provides a remedy, or where the harm consists merely of a breach of contract or breach of trust.

Legal wrong without damage: injuria sine damno

Legal wrong without damage means legal wrong without loss. It is the breach of a person’s legal right but without damage to the person. It is a legal wrong without damage. Whenever there is a breach of a person’s legal right, the person has a right of action and may bring action to recover damages even though it is nominal damage. He may also obtain such other appropriate remedies, although he never suffered any harm as a result of the tort. This is a contrast to damage without legal wrong. This is a situation where there is a legal wrong committed or done against a person but no loss or damage was suffered by the plaintiff or no damage was established by the plaintiff.

As a general rule, where there is a legal wrong without damage, the law presumes damage even though damage was not suffered by the plaintiff nor was proved by the plaintiff. For the simple reason that a legal wrong has been done to the plaintiff and the plaintiff is thereby entitled to an award of general damages, at least nominal damages, however small the amount.

The principle of legal wrong without damage or injuria sine damno, is an exception to the general rule that there must be damage or injury before legal action may be brought against a wrongdoer in tort. The torts in which damage need not be proved for a right of action to lie, are torts which are actionable per se, that is, they are actionable upon being committed. In other words, these torts give a right of action to the plaintiff to sue, once they are committed even though no harm resulted to the plaintiff.

To succeed in a claim for compensation in torts that are actionable per se, the plaintiff only needs to prove on the basis of probability, that the tort he alleges was committed. However, the plaintiff need not go on to establish damage, except where he actually suffered damage, in which case the amount of damages the plaintiff will recover will accordingly be increased beyond nominal damages.

The mental elements in torts

Intention and negligence

In the majority of torts it must be shown that the defendant’s invasion of the plaintiff’s rights was either intentional or negligent. An act is intentional when it is done with full advertence to its consequences and a desire to produce them. It is impossible to prove what went on in the defendant’s mind, however, the court may presume the defendant’s intention by looking at what he said or did and at all surrounding circumstances. Further, it is a well-known principle of law that “a party must be considered to intend that which is the necessary or natural consequence of that which he does.

Thus, if for example, A fires a shot at B’s dog intending to frighten it, and the bullet in fact kills the dog, A cannot escape liability by pleading that he only intended to frighten the animal for it must be presumed that the natural consequence of shooting at the dog will be to kill it.

Negligence differs from intention in that intention denotes a desire for the consequences of the act, whereas if the defendant is negligent he does not desire the consequence of his act but is indifferent or careless as to the consequences.

Negligence in the law of tort is used in two senses:

  1. To mean the independent tort of negligence, and
  2. To mean a mode of committing certain other torts, such as trespass or nuisance.

It is in the second sense that negligence must be distinguished from intention, and it is in this sense that it also amounts to carelessness. Negligence in the first sense has a more limited and technical meaning.

Strict liability

In come torts, the defendant is liable even though the damage to the plaintiff occurred without intention or negligence on the defendant’s part. These are usually torts of strict liability, the most important examples being liability for dangerous animals and liability under the rule in Rylands V. Fletcher. Thus, for instance, if A keeps a wild animal such as an elephant, lion or monkey, he will be liable for any damage caused by the animal, even though the damage was unintended by him and he was in no way careless in allowing it to happen.

Motive and malice

Motive means the reason behind a person’s doing a particular act. Motive is generally irrelevant in the law of torts. Thus, if the defendant’s act is unlawful, the fact that he had a good motive for doing it will not exonerate him. For example, if A locks his adult sister in her room from going out with a man whom A believes to be of bad character, A will be liable to B for false imprisonment, and the fact that A had a good motive will not excuse him.

Conversely, if the defendant’s act is lawful, the fact that he had a bad motive for doing it will not make him liable. There are some torts, however in which malice is relevant. Malice in the law of torts has three distinct meanings; it may mean spite or ill will, wrong or improper motive or the intentional doing of a wrongful act without just cause or excuse. In the first sense, the presence of malice in the defendant’s conduct is a factor to be taken into account in determining liability in nuisance. In its second sense, the presence of malice in the defendant’s conduct may prevent him from relying on certain legal defences, notably fair comment and qualified privilege in defamation actions. Malice in this sense is also an essential ingredient of the tort of malicious prosecution.

Malice in the third sense is a purely technical form of words used in pleadings.

Classification of torts

The classification of torts is a good academic exercise. The classification of torts helps to ensure a better understanding and study of the law of tort as a whole by putting it in a better perspective. It also helps to know the relationship between various torts. Torts may be classified according to the kind of rights or interests which they protect. Therefore, torts may be grouped as follows as those that protect or concern:

Torts protecting personal interest

The torts that protect a person, or prohibit trespass to person include the torts of trespass, such as, assault, battery, false imprisonment, malicious prosecution, the Rule in Rylands v. Fletcher, negligence, occupier’s liability, etc. These torts are concerned with protecting a person from being injured in the body. They also protect the freedom, liberty and dignity of a person from being denied by way of arrest, false imprisonment, etc.

Torts prohibiting interference with judicial process

The torts that prohibit interference with judicial process include malicious prosecution. This tort aims to protect persons against criminal prosecution without lawful excuse.

Torts protecting property interests

The torts that protect interests in property include trespass to chattel, trespass to land, nuisance, the Rule in Rylands V. Fletcher, negligence and interests in intellectual property, such as, copyright, passing off, injurious falsehood, patents, trademark, etc. These torts protect the proprietary interests of a person.

Torts protecting interests in reputation

The tort that protects the reputation of a person is the tort of defamation. The law of defamation which is divided into libel and slander protects a person’s right to his good reputation. It deals with wrongs to reputation. Defamation is also a crime. In criminal law, defamation consists of slander and libel. However, if a person does not have a good reputation, then there is nothing for the law to protect as the case may be.

Torts protecting economic interests

The torts which protect economic interests include; vicarious liability, deceit, passing off, interference with contractual relations and inducing breach of contract, malicious or injurious falsehood, conspiracy, intimidation, occupier’s liability, etc. These torts protect the economic interests of a person, such as economic relations and trading interests. They protect the right of a person to be free from financial or economic harm.

Torts prohibiting interference with relationships

The torts which protect relationship between one person and another person include, interference with contractual relations, enticement and harbouring, etc. On the other hand, the law of tort cares about economic and contractual relationships. For instance, the law of tort protects one contracting party from being denied the service of the other contracting party through inducement by a third party to break the agreement. See the case of Lumley v. Gye (1853) and British Motor trade Asso v. Salvadori

The torts of enticement and harbouring are old common law torts which protect the matrimonial rights of married persons; for instance the right of one spouse not to be denied the consort of the other spouse by a third party. Although, enticement and harbouring are valid torts in Nigeria, they have been abolished in England. (See section 2(9) of the Administration of Justice Act, United Kingdom; and the case of Best v. Samuel Fox & Co. (1952) 2 All ER 394.) Furthermore, in these modern days, nobody will want to sue for these torts because they want to relate with their spouse freely and not by force of law.

Torts protecting miscellaneous interests

This group of torts covers other multifarious and less common interests which are protected by the law of torts.