Law of Tort

Law of Tort. A tort, in common law jurisdiction, is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things.

Tort is a civil wrong involving a breach of duty fixed by the law, such duty being owed to persons generally and its breach being redressable primarily by an action for damages.
The main aim of the law of tort is to compensate persons harmed by the wrongful conduct of others, and 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.

However, such damages takes 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.

However, monetary damages is thus 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 an injunction, he must first prove that the defendant has committed a tort, for the law of torts does not cover evry type of harm caused by one person to another.

Tort and Crime Distinguished

The main purpose of the 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 is obtained by means of criminal prosecution, which is usually instituted by the Attorney General of the State or 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.

However, some act could be a crime and tort at same time, for example: assault, false imprisonment and defamation are both crimes and torts. If A steals B’s bicycle, he will be guilty of stealing (a criminal offence), and at same time be liable to B for tort of conversion.
Again, is A willfully damages B’s goods he is liable for the crime of malicious damage to property and for the tort of trespass to chattels. The effect in such cases is that the civil and criminal remedies are not alternative but concurrent, each being independent of the other.

The wrongdoer may be punished by imprisonment or fine, and he may also be compelled in a civil action for tort to pay damages to the injured person by way of compensation. There is however, a rule known as the rule in Smith V. Selwyne, under which , if the wrongful act is a felony, no action in tort can be brought against the defendant until he has been prosecuted for the felony, or a reasonable excuse has been shown for his not having been prosecuted. See the case of Nwankwo V. Ajaegbu (1978) 2 L.R.N. 230, at p. 235.

However, in view of recent decision of the courts on the rule in Smith V. Selwyn the fact that a criminal case is pending on similar facts may not be an obstacle to the civil suit that may be instituted on the similar facts. This rule has now been described by several eminent Judges as being “age-worn”, “archaic” and “anachronistic”.

In Rose V. Ford (1937) 3 AER pg. 359 at 371 Lord Wright said:
But however limited, the rule that the plaintiff must first prosecute in a case of felony is an anachronism, now that the police prosecute or are assumed to prosecute in every case of felony. Nor do I see how it can ever be alleged in any case where a person has been killed by negligence in driving a motor car or by any other negligence that the act is felonious unless and until the jury has so decided no pleader I imagine go out of his way to allege felonious negligence.

In Tika Tore Ltd V. Umar (1968) 2 All NLR page 107 at 110 the court did not follow the rule in Smith V. Selwyn by refusing to stay proceeding in the suit pending the completion of the criminal case. The court in Panthinsan V. Edet (1968) 2 All NRL page 135 refused to stay proceeding in the suit pending the completion of the criminal case.

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, whereas in action in tort the plaintiff need only prove his case upon a balance of probabilities. It is therefore easier for a plaintiff to succeed in tort than for the prosecution to secure a conviction in crime. See the case of Lawal V. Deputy Suprintendent of police (1975) W.S.C.A 72)

Tort and Contract – Law of Tort

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 word, contractual duties arise from agreement between the parties; tortuous duties are created by operation of law independently of the consent of the parties.

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 Purchaser Act 1965.

Conversely, some duties in tort can be varied by agreement, for example, the duties owed by the occupier of premises to his visitors; and liability in tort can be excluded altogether by consent (the doctrine of non fit injuria)

Sometimes a wrongful act may be both a tort and a breach of contract, for example:

  1. Is A has contracted to transport B’s goods, and due to A’s negligence the goods are lost or damaged A will be liable to B for breach of the contract of carriage and for the tort of negligence.
  2. A dentist who negligently causes injury in the course of extracting a tooth may be liable to the patient both for breach of an implied term in his contract with the patient to take reasonable care, and for the tort of negligence.

A dentist who negligently causes injury in the course of extracting a tooth may be liable to the patient both for breach of an implied term in his contract with the patient to take reasonable care, and for the tort of negligence.

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