LAW1310

Chapter One
Introduction Notes

CHAPTER ONE INTRODUCTION

Definition of the law of torts
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A tort may be defined broadly as a civil wrong involving a breach of duty fixed

by the law.
Tortious duties are owed to persons generally and its breach being

redressable primarily by an action for damages.

The aim of the law of torts is to compensate persons harmed by the wrongful
conduct of others, principles of tort will determine when the law will and

when it will not grant redress for damages suffered.

Monetary damages is the usual remedy for tort.
Injunctions is also a form of remedy.
The claimant in a tory case must first prove that the defendant has
committed a recognised tort, for the law of torts does not cover every type of
harm caused by one person to another.

Tort and crime

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A tort is a purely civil wrong which gives rise to civil proceedings.

The aim of tort is not to punish wrongdoers for the protection of the public at
large, but to give the individual claimant compensation for the damage which

he/she has suffered as a result of the defendants wrongful conduct.

Deterrent school of thought believes that there is a deterrent aspect of
tort law.
The deterrent theory has two main weakness:
i.
The general principles of the law of negligence that a person has a
duty to take reasonable care is too vague to have any realistic impact
ii.

on most persons standard of behaviour

The deterrent theory fails to take into account that, in practice, tort
damages will most often be paid by the tortfeasors insurers on the

terms of his liability insurance policy.

Some torts have strong historical connections with criminal law, e.g., assault,

battery and false imprisonment are both crimes and torts

Some actions may be criminal and tortious. Cases where they are both civil
and criminal remedies are not alternative but concurrent, each being

independent of the other.

However there is a principle in Smith v Selwyn, if the wrongful act is a
felony, no action in tort can be brought against the defendant until he has

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Chapter One
Introduction Notes

been prosecuted for the felony, or a reasonable excuse has been shown for
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his not having been prosecuted.

In criminal trial, prosecution must prove its case beyond reasonable doubt
In tort trial, the claimant merely required to establish claim on a balance of
probabilities

Tort and contract

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Traditional distinction between tort and contract is that:

o In tort the duties of the parties are primarily fixed by law, created by
o

operation of law independently of the consent of the parties

In contract they are fixed by the parties themselves, duties arise from

agreement between the parties

This is not exactly the distinction between the two as contract violations may

be due to violation of statutory stipulations for contracts

Tort law is designed to protect the status quo, in that the claimants position
should not be made worse by the defendants acts. The claimant should be
restored, as far as possible, to the position he would have been in had the

tort not been committed.

Whereas in contract, the defendant is liable to put the claimant into the
position he would have been in had the contract been carried out.

Damnun sine injuria damage without legal injury

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Means ; damage without injury

Basic principle that damage is not actionable in tort unless such damage
amounts to legal injury
It is for the courts themselves to decide what is and what is not legal injury.
There are many kinds of harms which fall outside the scope of the law of torts
o May be too trivial de minimis non curat lex
o Too indefinite or incapable of proof
o Policy reasons requiring the of balancing both parties interests
o Harm may be caused by the defendant in the exercise of his own rights
o Harm caused may be protected by some other branch of the law

Injuria sine damno legal injury without damage

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Means legal injury without damage

The claimant must prove that he has suffered actual damage as well as legal
injury

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Chapter One
Introduction Notes

In some torts actual damage need not be proved and it is sufficient to show
an infringement of the claimants legal rights. These are known as torts
actionable per se

Forms of action
Intention
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In majority of the torts it is necessary to show defendants actions were

intentional or negligent
Intention is defined as an act done with full advertence to its consequences

and a desire to produce them

The court may presume the defendants intention by looking at what he said

or did and at all the surrounding circumstances

A party must be considered to intent that which is the necessary or natural
consequences of that which he does

Negligence
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Negligence is an act which the D does not desire the consequences of his act
but is indifferent or careless as to the consequences
Can mean
o The independent tort of negligence
o A mode of committing certain other torts

Strict liability
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Some torts are those of strict liability and it is not necessary to prove
intention or negligence, all that matters is the act has been committed
resulting in the injury

Motive and malice