An Overview of the Law of Torts

 CONTENTS

1.0       Introduction

2.0       Objectives

• Main content
• Tort compared with some other laws
• Forms of Action
• Classification of torts

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignments

7.0       References and further reading

INTRODUCTION

In this unit, we shall distinguish tort from other legal conceptions and consider the forms of action. We will also consider the various classifications of tort and how the law of torts was received into Nigeria.

OBJECTIVES

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

• compare torts with other laws;
• understand the forms of action in tort;
• classify torts; and

MAIN CONTENT

Tort compared with some other laws

The dividing line between tort and other civil wrongs is thin. Furthermore, tort runs through the whole law. Like crime, a tort may occur in any other area of law.

We shall briefly compare tort with the following areas of law:

1. Criminal Law
2. Law of Contract; and
3. Trust

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.

There thus fundamental differences between criminal and tortuous liability. It is significant however that 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. 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.

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. See section 138(1) Evidence Act 2004 and the case of Okuarume V. Obabokor (1966) NMLR 47. It is

therefore easier for a plaintiff to succeed in tort than for the prosecution to secure a conviction in crime.

Tort and Contract

Tort is a breach of a duty imposed by law. In many instances, the parties in a tort are previously unconnected. There is often no privity of contract. Tort is concerned with protecting interests and compensating wrongs, injuries or damage. Liability in tort is often based on fault or occurrence of damage. It is alsoconcerned with unsafe products. Liability is determined by the remoteness of damage based on foresight of the type of harm. Tort aims to restore a plaintiff to his pre-accident or pre-wrong position. Limitation of time runs from the date the wrong or damage occurred.

A contract is a binding agreement between two or more persons. 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; tortuous duties are created by operation of law independently of the consent of the parties. However, parties to a contract are also subject to those underlying rules and principles of contract which the law imposes on them.

Secondly, the duties owed by two contracting parties towards another are frequently not duties which they expressly agreed upon but obligations which the law applies. 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 volenti non fit injuria),

When a wrong arises exclusively from a breach of agreement between parties, then the wrong is not a tort but a breach of contract, or trust, or other legal or equitable obligation as the case may be. On the other hand, if the relationship of the plaintiff and the defendant is such that a duty of care arises irrespective of contract and a wrong is done, and the defendant is negligent, then the wrong is often a tort even though it may also be a crime. In other words, if the law imposes a duty on a person to take care, so that his conduct does not injure his neighbour, if the person fails to exercise reasonable care, the wrong that may result is often a tort, even though it may also be a crime or other civil wrong.

In Kelly V. Metropolitan Railway Co. (1895) 1 Q.B. 944 CA., the plaintiff sued the defendant railway company for personal injuries he suffered due to the negligence of the servants of the company while he was traveling on the railway. The court held that the case was founded upon tort and not contract, although the tort occurred as a result of a contract to carry him as a passenger. See also Tai Hing Cotton Mill V. Lui Chong Hing Bank (1986) 2 All ER 947.

In Jackson V. Mayfair Window Cleaning Co. Ltd. (1952) 1 ALL ER 215, the plaintiff house owner contracted the defendant company to clean his house. In the course of cleaning a chandelier, it fell from the ceiling and was damaged. In an action for negligence for its damage, the court held that the company had failed to exercise reasonable care in the cleaning of the chandelier and gave judgment in favour of the plaintiff. The cause of action was not the failure of the company to perform the contract to clean the house, but it arose out of the breach of duty to exercise reasonable care to keep the plaintiff’s properties safe. The plaintiff’s claim was founded on tort and not on contract. See also the case of Henderson V. Merrett (1994) 3 All ER 506.

On the other hand, where a damage is purely contractual, then any breach of agreement between the parties can only be remedied by a claim for breach of contract. This view was affirmed by the Supreme Court in Quo Vadis Hotel Ltd V. Nigeria Marine Services Ltd. (1992) 6 NWLR Pt. 250, p.653 at p.664 SC.

Sometimes a wrongful act may be both a tort and a breach of contract. For example: (i) if 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 both for breach of the contract of carriage and for the tort of negligence. (ii) 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. See the following cases:

Nigerian Bottling Co. Ltd. V. Ngonadi (1985) 1 NWLR pt. 4, p. 739 SC. Abusomwan V. Mercantile Bank of Nig. Ltd. (1987) 3 NWLR pt. 60, p. 196 SC. Osemobor V. Niger Biscuit Co. Ltd. (1973) NCLR 382. Amadi V. Essien (1994) 7 NWLR pt. 354, p. 91 CA.

Lastly, 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 concepts of remoteness of damage and agency. The main object of legal proceedings in both contract and tort is damages. That is monetary compensation and or a grand of other appropriate remedy to the injured party for the injury or loss occasioned to him by a breach of contract or commission of a tort.

Tort and 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.

In other words, the remedies of tort are mainly based on law, whilst the remedies of trust were originally equitable and discretionary, although many remedies are now legal or statutory. Both laws of tort and trust have since then been developed by statutory enactments.

Similarly, 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. See the case of Chessworth V. Farar (1967) 1 QB 407 at 110; (1966) 2 All ER 107.

Forms of Action

In order to understand the categories, boundaries and definitions of modern torts, it is necessary to look at their historical origins. There is probably no branch of the common law (apart from English land law) which is more rooted in the past than the law of torts.

Torts were developed from about the thirteenth century onwards in the King’s common law courts, in which every action had to be commenced by the issue of a royal writ. Each writ was in a set of form, known as a form of action. There was a limited number of recognized forms of action and each plaintiff had the difficult task of fitting his claim into an existing form: if his claim did not fit, he had no remedy. This system of writs and forms of action dominated the law of torts and indeed the whole common law system until the forms of action were eventually abolished by the Common Law Procedure Act in 1852. Before the abolition of the forms of action, the question in every tort claim was not “has the defendant broken some duty owed to the plaintiff?” but “has the plaintiff any form of action against the defendant, and, if so, what from?”

The main forms of action in tort were: (i) the writ of trespass and (ii) the writ of trespass “on the case”, or simply “the action on the case.” The writ of trespass lay only for forcible, direct and immediate injury to land, persons and chattels. Examples include where the defendant throws a log of wood at the plaintiff, striking him as he walks along the road. The action on the case, on the other hand, covered all injuries that were indirect and consequential or non-forcible. For example where the defendant negligently leaves a log of wood in the road over which the plaintiff stumbles and is injured (indirect injury), or where the defendant defames or deceives the plaintiff (non-forcible injury).

Before 1852 it was vital to choose the correct form of action – trespass for direct, forcible injury; case for indirect or non-forcible injury–and if the plaintiff made the wrong choice, his claim failed. Now all the plaintiff needs to do is to set out the relevant facts in his statement of claim. Nevertheless, the distinction between direct and consequential injury still remains. Thus the modern tort of trespass is concerned with direct injuries; whilst the tort of nuisance (derived from the action on the case) covers indirect injuries. See Onasanya V. Emmanuel (1974) 9 C.C.H.C.J. 1477, at p.1484 where throwing water and refuse onto plaintiff’s land was held to be trespass and allowing excreta to seep into plaintiff’s well from defendant’s salga was held to be nuisance. See also Lawani V. West African Portland Cement Co. Ltd. (1974) 2 W.S.C.A. 36 at pp.41, 42.

It is no longer necessary for the plaintiff to plead any particular form of action, but he must nevertheless show that some recognized tort has been committed. He can do this only by showing that the defendant’s conduct comes within the definition of trespass, nuisance, negligence, etc., as the case may be. The boundaries and definitions of modern torts thus depend to a large extent on the boundaries of the old forms of action; hence Maitland’s celebrated remark: “The forms of action we have buried, but they still rule us from their graves.”

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:

1. Personal Interests
2. Interference with judicial process
3. Property interests
4. Interest in reputation
5. Economic interests
6. Interference with relationships; and
7. Miscellaneous interests

Let us briefly examine the classes of torts.

Torts Protecting Personal Interests

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 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 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) 118 ER 749, 1083 and British Motor trade Asso V. Salvadori (1949) Ch. 556.

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.

SELF ASSESSMENT EXERCISE 1

Mention the various classifications of torts.

CONCLUSION

One of the mysteries of Legal Education is the exact or precise meaning and ambit of tort liability. Tortuous liability arises from the breach of a duty of primary care fixed by law. Such duty is towards persons generally and its breach is redressable by an action for unliquidated damges. Although universally acclaimed, this definition does little more  than purport to assist us to distinguish tort form other branches of Law.

SUMMARY

In this unit, you learnt about the Law of Tort in comparison and difference between Torts and Crime, Tort and Breach of Trust, Tort and Contract.

TUTOR MARKED ASSIGNMENT

Write short notes on the following:

• Tort and crime
• Tort and contract
• Tort and breach of trust

REFERENCES

Criminal Code of the Southern States of Nigeria Penal Code of the Northern States of Nigeria