Law of tort

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 take different forms such as; physical injury to persons; physical damage to property; injury to reputation; and damage to economic interests.

Types of tort

  1. Unintentional Tort: In the case of unintentional tort, the defendant causes injury to the plaintiff, but without any mala fide intention. It may be called an unintended accident. The person who caused the injury did so inadvertently because he/she was not being careful. Such a person may be termed as negligent or reckless. In the event of an unintentional tort, we may notice that the injury is caused due to the omission of the “duty of care” which a reasonable and prudent man ought to have considered or foreseen.
  2. Intentional Omission: In such circumstances also there is no need for intention in tort. For example: if a nurse deliberately allows a child to get into a position of danger and receives injuries, she will be held liable. Here it is not the intentional omission which is the basis of liability, but it is the breach of her duty to look after and take care of the child. We know that intention by itself is not a good defence in tort. It is clearly impossible to know what is going on in the mind of the defendant. Justice Brian has aptly described the above argument in the following words: “It is common knowledge that the thought of man shall not be tried, for the devil himself knoweth not the thought of man.

Tort law negligence

Negligence in the law of tort is used in two different 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 the second sense that it amounts to carelessness. Negligence in the first sense has a more limited and technical meaning.

Tort law example

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)

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