Académique Documents
Professionnel Documents
Culture Documents
TABLE OF CONTENTS
Acknowledgement
List of Abbreviations
What is a tort?
Definitions of Tort proposed by various authorities.
2. What is a defence...............................................................................................6
3. Types of defences...............................................................................................7
Specific defence
General defence
Rylands v. Fletcher
Nichols v. Marsland
Greenock Corp. v. Caledonian Railways
Cushing v. Walker & Sons
Greenwood Tileries v. Clapson
5. Conclusion .....................................................................10
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LAW OF TORTS
1. What is a tort?
A tort is the French equivalent of the English word wrong and of the Roman law
term delict.
Tort is derived from a Latin word tortum meaning twisted, crooked or wrong.
A tort is simply a transgression from straight or right conduct i.e. a wrong against the
world at large due to some act or failure to do one.
It governs the rights of private parties to obtain compensation from those who have
caused them injuries due to some act or failure to do one.
Tort is a wrong which begins at some act i.e. doing something wrong or omission i.e.
a failure to do something which should have been done. The act or omission leads to
legal injury to a party (the injured) and that party seeks compensation called legal
damages from the party committing the tort (the injurer).
A tort is a civil wrong for which the remedy is a common law action for unliquidated
damages, and which is not exclusively the breach of a contract or the breach of a trust
or other mere equitable obligation.
Fraser-
Winfield-
Tortuous 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.
3. What is a defence?
The word defence bears several meanings in the tort context and a great deal of
confusion has been spawned of a general failure by courts and commentators to make
their intended meaning clear.
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LAW OF TORTS
First, it is sometimes used to refer to any argument that persuades the court to find
that the defendant is not liable. So understood, the word defence encompasses
absent element defences. Absent element defences are denials by the defendant of
an element of the tort in which the plaintiff sues. A defendant advances an absent
element defence when, for example, he denies that he is the tortfeasor, denies that his
impugned act was voluntary, denies that he was at fault when proof of fault is
required, or denies that the plaintiff suffered damage when damage is the gist of the
tort in which the plaintiff sues.
In a second and stricter sense, the word defence refers only to rules that, when
enlivened, result in a verdict for the defendant even if all of the ingredients of the tort
that the plaintiff contends was committed against him are present. A defendant
invokes a defence within this meaning of the word when he argues along the
following line: Even if I committed a tort, judgment should nevertheless be entered
in my favour because of rule so and so.
Only affirmative defences count. Affirmative defences include absolute privilege,
abuse of process, arrest, distress, honest opinion, immunity, limitation bars, necessity,
qualified privilege, recapture of land or chattels, res judicata and self-defence. A
defendant who relies on any of these rules seeks to avoid liability not by denying the
plaintiffs allegations but by going around them.
A. SPECIFIC DEFENCES.
Certain specific defences for particular torts are:
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LAW OF TORTS
B. GENERAL DEFENCES.
These defences applied by the defendant, only pertain to specific cases. They do not
apply generally throughout tort law.
However, for this particular project submission, more focus is put on Act of God (Vis
Major) as a general defence to tort.
Vis Major is derived from the Latin words vais maior: vis ( force) + major ( greater)
i.e. an overwhelming force of nature having unavoidable consequences that under
certain circumstances can exempt one from the obligations of a contract.
The term Vis Major is a superior force. In law it signifies inevitable accident. This
term is used in the civil law in nearly the same way that the words Act of God is used
in the common law. Generally, no one is responsible for an accident which arises from
vis major.
Act of God can be understood as a natural catastrophe which no one can prevent such
as an earthquake, a tidal wave, a volcanic eruption, or a tornado. Acts of God are
significant for two reasons.
Where an act is caused (harmful to a party) directly by natural causes without human
intervention in circumstances which no human foresight can provide for and against
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LAW OF TORTS
and of which human prudence is not bound to recognize the possibility, the Act of
God as defence can be applied.
The mill in Bs land for which a reservoir was being created resulting subsequently to
legal injury to A.
The same rule was also applied in Nichols v. Marsland2. In this case, the
defendant for many years had been in possession of some artificial ornamental
lakes formed by the damming up of a natural stream. An extraordinary
2 (1876 2 Ex.D.1.)
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LAW OF TORTS
rainfall, greater than any in the memory of witnesses broke down the
artificial embankments and the rush of escaping water carried away four
bridges in respect of which damage the claimant sued. Judgement was given
for the defendant that she was not negligent and the court held that she ought
not to be liable for an extraordinary act of nature which she could not
reasonably anticipate.
4 Supra fn.2
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LAW OF TORTS
CONCLUSION
In law, then, the essence of an Act of God is not so much a phenomenon which is sometimes
attributed to a positive intervention of the forces of nature but a process of nature not due to
the act of Man and it is this negative side which deserves emphasis.
The criterion is not whether or not the event could reasonably be anticipated, but whether or
not human foresight and prudence could reasonably recognize the possibility of such an
event. Even in such limited form, however, this defence, like the defence of act of a stranger,
shifts the basis of the tort from responsibility for the creation of risk to culpable failure to
control that risk. This has been criticized on the ground that an accidental
escape caused by the forces of nature is within the risk that must be
accepted by the defendant when he accumulates the substance on his
land.