General Introduction

TABLE OF CONTENTS

1.0       Introduction

2.0       Objectives

• Main content
• Definition of tort
• The purpose of the law of torts
• The Rule in Smith v. Selwyn

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignments

7.0       References and further reading

INTRODUCTION

This unit considers the definition, objectives and the scope of the law of tort. It also takes an overview of the subject.

OBJECTIVES

By the end of this unit you should be able to:

• Define law of torts;
• Understand the purpose of the law of torts; and
• Explain the rule in Smith v. Selwyn.

MAIN CONTENT

Definition of tort

The word ‘tort’ is derived from the latin word tortus, which means ‘twisted’. It came to mean ‘wrong’ and it is still so used in French: ‘J’ai tort’; ‘I am wrong.’ In English, the word ‘tort’ has a purely technical legal meaning – a legal wrong for which the law provides a remedy.

Academics have attempted to define the law of tort, but a glance at all the leading textbooks on the subject will quickly reveal that it is extremely difficult to arrive at a satisfactory, all embracing definition. Each writer has a different formulation and each states that the definition is unsatisfactory.

Let us now consider some of these definitions.

To use Winfield’s definition as a starting point, we can explore the difficulties involved (Rogers, Winfield & Jolowicz on Tort, 15^th edn, 1998, London: Sweet & Maxwell, p.4):

Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.

In a similar tone, Prof. Sir John W. Salmond in his book Salmond and Heuston, Law of Tort, 18^th ed. P. 11, 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.

On the other hand, Kodilinye (Kodilinye, The Nigerian Law of Torts, p.1) defined tort as:

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.

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 unliquidated damages, injunction, or other appropriate civil remedy. In other words, a tort is a breach of a civil duty imposed by law, which remedy is unliquidated damages, injunction, or other appropriate remedy. A tort is a civil wrong that is not exclusively a breach of contract, and which is usually compensated by an award of unliquidated damages, injunction or other appropriate remedy. Thus, tort is the breach of a civil duty imposed by law towards all persons, the remedy of which is mainly monetary compensation, injunction or other appropriate civil remedy.

As we can see, tort is not easy to define, first, because the difference between tort and other civil wrongs is a thin line. Sharing this view, Kenny (Kennys, Outline of Criminal Law, 16^th ed. by J. W. Cecil 1952, p. 543.) said:

“To ask concerning any occurrence, is this a crime or is it a tort”? is to borrow SIR JAMES STEPHEN’s apt illustration – no wiser than it would be to ask concerning a man; is he a father or a son? For he may well be both.

Secondly, tort is difficult to define because the law of tort runs through the whole of law. Explaining this feature of tort, KEETON (Law of Torts, 15^th ed, 1984 p. 2-3) observed:

“In the first place, tort is a field which pervades the entire law, and is so interlocked at every point with property, contract and other accepted classifications, that as the student of law soon discovers, the categories are quite arbitrary. In the second, there is a central theme…running through the cases of what are called torts, which although difficult to put into words, does distinguish them…from other types of cases.”

In order to understand tort, it may be helpful to withdraw for a moment from the problems of definition and take an overview of the subject to consider the nature of the duties which are imposed and the interests which are protected by this branch of civil law.

The purpose of the law of torts

The word “tort” means “wrong”. Any unjustifiable interference with the right of another person may be a tort. 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. Damages is the monetary compensation that is paid by a defendant to a plaintiff for the wrong the defendant has done to him.

The essential aim of the law of torts is to compensate persons harmed by the wrongful conduct of others. 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. Such damage takes several 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.

Monetary damages are 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 every type of harm caused by one person to another. The mere fact that A’s act has caused harm to B does not necessarily give B a right to sue A for damages in tort, unless B can show that A’s act was of a type which the law regards as tortuous, that is, actionable as a tort.

Thus, the purpose of the law of tort is to prohibit torts, and where a tort is committed the law of tort provides a remedy for it, by an award of damages or other appropriate relief. The law of tort deals with a wide variety of wrongs, related and unrelated. Thus, the law of tort enforces rights and liability and provides remedy in the areas covered by the law of tort which includes the following:

1. Trespass to person, that is, assault, battery and false
2. Malicious prosecution
3. Trespass to chattel, that is, conversion and detinue
4. Trespass to land
5. Negligence
6. Nuisance
7. The Rule in Rylands v. Fletcher(strict liability)
8. Liability for animals
9. Vicarious liability
10. Occupier’s liability
11. Defamation
12. Deceit
13. Passing off
14. Economic torts, such as, injurious falsehood, interference with contract,etc.

Essentially, the law of torts protects personal and property interests from being harmed by other persons. Everyone is under a duty not to interferes with the interests of other persons. Where a person interferes with the interest of another person, without legal justification or excuse, the law of tort intervenes to apportion blame and award damages or other appropriate remedy. The main remedies available to a person in the law of tort are several and include:

1. Award of damages that is monetary compensation. See the case of Shugaba v. Minister of Internal Affairs & Ors (1981) 2 NCLR
2. Injunction and/or:
3. Any other remedy, such as, an order to abate a nuisance, or for specific restitution of a chattel of which the plaintiff has been dispossessed,

The law of tort should be of interest to the average individual because tort is an everyday occurrence and the law of tort provides remedy for many common incidents of daily life. The torts which occur everyday include trespass to person, nuisance, negligence, etc. The law of tort defines tortuous acts, apportions blame and determines the appropriate remedy to be granted when a tort has been committed.

A summary of the objectives of tort

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
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
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
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

SELF ASSESSMENT EXERCISE 1

What do you understand by injunction?

The Rule in Smith v. Selwyn (1914) 3 KB 98

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 in Nigeria

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, that is to say:

1. Criminal Code Act;
2. Interpretation Act; and
3. 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. Niki Tobi JCA as he then was, reading the unanimous judgment of the Court of Appeal said:

“It appears that the decisions to the effect that the rule applies in Nigerian law were made per incuriam. It is my view that the rule is not applicable in Nigeria in view of the very clear two local statutory provisions. Section 5 of the Criminal Code Act … is one, section 8 of the Interpretation Act… is another. Let me state verbatim ad literatim the provisions the provisions of the two statutes: First, section 5. The section provides that the Criminal Code: ‘Shall not affect any right of action which any person would have had against another if the Act had not been passed’.

Second, section 8 (of the Interpretation Act). The section provides thus: ‘An enactment shall not be construed as preventing the recovery of damages in respect of injury attributable to any act by reason only of the fact that the enactment provides for a penalty, forfeiture or punishment in respect of the act’.

In the light of the above statutory provisions, it is not correct to contend, … that the rule applied in the case. It does not. Apart from the clear position of our law, it does not even seem to be a sensible thing to stop a plaintiff from instituting an action merely because the criminal action on the same matter has not been prosecuted. Certainly, a man who is aggrieved should have nothing to do with a criminal matter before instituting a civil action. The criminal matter is the concern of the State, so to say, while the civil matter is the concern of the aggrieved individual. “… The rule is now an anachronism even in England, since the enactment of the Criminal Justice Act 1967, an Act which put to final rest the erstwhile distinction between felony and misdemeanour”.

In view of the above provisions of the law, the rule in Smith v. Selwyn no longer apply in Nigeria. See also Adediran v. Interland Transport Ltd. (1991) 9 NWLR Pt. 214, P. 155 SC. Finally, the rule does not also apply in the United Kingdom where it originated, as it was abolished by the Criminal Justice Act 1967, which abolished the distinction between felony and misdemeanour in the United Kingdom.

CONCLUSION

In this unit we have learnt generally about the law of tort, we learnt about the summary of the objective of the Law of tort which includes but not limited to (a) compensation, (b) protection of interest, Differences, retribution, vindication loss of distribution, punishment for wrongful conduct, injunction and the rule in Smith v Selwyn.

SUMMARY

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

            TUTOR MARKED ASSIGNMENT

Discuss the objectives of the law of torts.

REFERENCES

Harpwood Vivienne: Modern Tort Law, 5^th ed., US: Cavendish Publishing Ltd, 2003.