Law of Torts in Ghana-Stephen Offei (1).pdf - CHAPTER ONE...

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Unformatted text preview: CHAPTER ONE INTRODUCTION NATURE OF LIABILITY FOR TORTS Nature of the Law of Torts Definition The word ‘tort’ derives from the Latin tortus meaning twisted or crooked and early found its way into the English language as a general synonym for‘wrong’. To define a tort exactly is far from easy, for although the law of torts is both extensive and largely judge-made, the courts have not given a settled judicial definition (the common law has always been slow to define terms) and the matter has been left to learned authors. Hence, Street comments: “Much ink has been spilt in attempts to define tort with only limited success; at least for the student new to the subject” 1. Salmond defined a “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 a contract or the breach of a trust or other merely equitable obligation”.2 Winfield defined “Tortious liability” as "the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages".3 According to James, a “tort” “is an act or omission which is unauthorised by law and independently of contract infringes either some absolute right of another, or some qualified right of another, causing damage or some public right resulting in some substantial and particular damage to some person beyond that which is suffered by the public generally, and gives rise to an action for damages at the suit of the injured party”.4 These definitions stress the procedural aspect, since historically the development of tort was based on procedure, though it will be seen that James is concerned with the infringement of the claimant's right, not a breach of the defendant’s duty. Right and duty are correlative terms and both must be considered together. Clerk and Lindsell on Torts (13th ed. page 1) having stated that “Many attempts to define a tort have been made but none seems entirely satisfactory”, express a preference for Winfield’s definition. Street on Torts, 11th ed. (2003), p3. 21st ed., p13, Salmond indicated that this definition was approved in Anglo- Saxon Petroleum Co Ltd. V Damant [1947] KB 794 at 796 and in Philip Morris v Airley [1975] VR 345 at 347). 3 14th ed. In this definition Winfield is seeking merely to indicate what conduct is and what is not sufficient to involve tortious liability. 4 James, P.S.; General Principles of the Law of Torts, Butterworth’s (1978). 1 2 -1- In conclusion, the following is offered as a general definition: ‘A tort is a civil wrong other than a breach of contract, quasi-contract or breach of trust. Thus any harm to a person caused intentionally or negligently or in cases of strict liability creates a liability in tort unless the person causing the harm has some just cause or excuse for his/her act or omission. By the common law jurisdiction of the court, the person so harmed may bring an action for unliquidated damages (such damages as the court, in its discretion, is at liberty to award) against the tortfeasor.’ Clearly, the amount of damages payable cannot be fixed before the tort has actually been committed. Tort distinguished from other legal wrongs Tort and Contract No civil injury is to be classed as a tort if it is solely a breach of contract. The distinction today between tort and contract is that the duties in tort are primarily imposed by law, whilst contract duties are determined by the parties themselves. Further, in tort the duty is towards persons generally, in contract it is towards a specific person or persons. Although liability in tort and in contract is quite distinct, the same facts may nevertheless create alternative liability in tort or in contract. Winfield gave the following illustration: "A dentist who contracts to pull out my tooth is, of course, liable to me for breach of contract if he injures me by unskilled extraction. But he is also liable to me for the tort of negligence; for everyone who professes skill in a calling is bound by law, agreement or no agreement, to show a reasonable amount of such skill: Edwards v Mallan.5 I cannot recover damages twice over, but I may well have alternative claims for damages under different heads of liability”. It means that there are fewer differences between the law of contract and the law of torts than might at first sight be imagined. In a number of situations one might owe concurrent and co-extensive duties to another in tort and contract.6 Nevertheless, distinctions between the two remain. In most actions for breach of contract, the conduct of the party who has broken the contract (be it intentional, negligent or otherwise) is irrelevant, whereas in most torts (with clear exceptions to be discussed later) that fact is of crucial importance. And in the overwhelming preponderance of contract actions the claimant seeks to recover a specified sum of money, whereas the damages claimed in a tort action are generally unliquidated. 5 6 [1948] I KB 1002 (CA). Greig and Davis; the Law of Contract (1987), Ch.4. -2- As regards exemption clauses, the Unfair Contract Terms Act 1977 (which despite its name, affects torts as well) now provides that in relation to business liability (liability arising from things done or to be done in the course of a business or from the occupation of business premises), a person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence, and can only do so in the case of other loss or damage where the term or notice satisfies the requirement of reasonableness, the test for which distinguishes between contractual terms and non-contractual notices. Tort and Crime Whilst crime is also not easy to define, the main difference between a crime and a tort turns on the distinct object that the law pursues. With a crime, that object is punishment of the wrongdoer as a matter of public concern, and proceedings are taken in the name of the State. With a tort, the object is redress; the tortfeasor is not punished but is compelled to make compensation or restitution for his act to the injured party. As Salmond puts it: “civil justice gives to the claimant, criminal justice gives to the defendant, what he deserves.”(21st edition). This distinction between a tort and a crime is, however, comparatively modern, as for a long period during early English history there was no distinction, and whether crime was an offshoot of tort, or vice versa, is difficult to say. Gradually, however, from the descendants of Trespass, Case and Trover, and from various other sources, the modern law of torts was evolved, and as this law became more definite, so did the distinction between a tort and a crime. Yet, today the two cannot be wholly divided into watertight compartments. The criminal law is concerned with the protection of society by deterring wrongful behaviour. The law of torts also does have some deterrent value. A motorist who has been negligent has to pay higher insurance premiums to deter him from committing further torts. Some cases such as injuries to the person, and in some limited cases libel are both a criminal offence and a civil wrong. Broadly speaking, any criminal act that causes damage to an individual is civilly actionable, and both civil and criminal proceedings can be taken. Damnum sine injuria Damnum sine injuria means literally ‘damage without actionable wrong’ or ‘loss without civil wrong’. The basic principle is that damage is not actionable in tort unless such damage amounts to legal injury. In other words, even though the claimant has suffered a loss, he has no cause of legal action. Thus, if the defendant’s act is in itself lawful, he cannot be sued in tort, however much -3- damage the claimant suffered as a result of it. There are many forms of harm for which the law of torts does not provide remedy. For example, with regard to trade competition, the opening up of a supermarket in a particular area may harm the trade of existing local shopkeepers, but the shopkeepers cannot take a tortious action against the supermarket. Thus, any damage or harm that results from the action of setting up in competition is called damnum sine injuria. Also, defamatory statements on a privileged occasion will fall into the category of damage under necessity. In Hargeaves v Bretherton7 the court refused to introduce a new head of tortious liability to enable a witness to be sued for perjury. In Lonrho Limited v Shell Petroleum Company Limited8 the House of Lords held that an innominate tort in the nature of an action on the case for damages at the suit of a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is not part of English law. (The Australian case of Beaudesert Shire Council v Smith (1966) 120 CLR 145 was not followed). See also the Ghanaian case of Miller v Attorney-General where the Court in dismissing a claim that “rudeness” constituted a tort said that, “The disrespect or the rudeness which the boys might have shown to him could not constitute an assault on him. A person who is rude cannot be termed an assailant nor his rudeness an assault.”9 Thus, compensation is not recoverable for damage caused by other than actionable wrong. Injuria sine damno Injuria sine damno means actionable wrong, which has caused no damage. There are occasions where a person’s behaviour causes no damage or loss at all but it is still actionable in tort. Some of this class of torts, such as trespass and libel, are actionable per se (in themselves), and thus no loss or damage needs to be alleged or proved. Other torts in this class are not actionable per se. An example is slander (with four exceptions), where a claimant will only succeed in his action if he can prove that he has suffered damage. The forms of action In order to understand the categories, boundaries and definitions of modern torts, it is necessary to look at their historical origins, for probably no branch of the common law is more rooted in the past than the law of torts. 10 Torts were developed from about the thirteenth century onwards in the King’s common law 8 [1958] 3 ALL ER 122. [1981] 2 ALL ER 456 (HL). 9 [1975] 2 GLR 31, 41 7 10 Perhaps English land law is an exception. -4- courts, in which every action had to be commenced by the issue of a royal writ. Each writ was in a set form, known as a form of action. There was a limited number of recognised forms of action, and each claimant had the difficult task of fitting his claim into an existing form: if his action 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 Common Law Procedure Act eventually abolished the forms of action 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 claimant?’’ but "has the claimant any form of action against the defendant, and if so, what form?’’ The main forms of action in torts 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 or chattels, for example, where the defendant throws a log of wood at the claimant, striking him as he walks along the road. The action on the Case, on the other hand, covered all injuries that were indirect or consequential or nonforcible, for example, where the defendant negligently leaves a log of wood in the road over which the claimant stumbles, receiving injury (indirect injury), or where the defendant defames or deceives the claimant (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 claimant made the wrong choice, his claim failed. Now, all the claimant 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 to this day. 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.11 It is no longer necessary for the claimant to plead any particular form of action, but he must nevertheless show that some recognised tort has been committed, and 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”.12 Intention and negligence 11 12 For example, throwing water. F, Maitland, The Forms of Action at Common Law, Cambridge University Press, (1909) p 296. -5- In the majority of torts it must be shown that the defendant’s invasion of the claimant’s rights was either intentional or negligent. An act is intentional when it is done with full advertence to its consequences and a desire to produce them. The court may presume the defendant’s intention by looking at what he said or did, and at all the surrounding circumstances. It is a well-known principle of law that "a party must be considered to intend that which is the necessary or natural consequence of that which he does”.13 Thus, for example, if A fires a shot at B’s dog intending to frighten it, and the bullet in fact kills the dog, A cannot escape liability by pleading that he intended only to frighten the animal, for it must be presumed that the natural consequence of shooting the dog will be to kill it. Negligence differs from intention in that intention denotes a desire for the consequences of the act, whereas if the defendant is negligent he does not desire the consequences of his act but is indifferent or careless as to the consequences. Negligence in the law of torts is used in two senses: i) to mean the independent tort of negligence, and ii) 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 (as will be seen in chapter 4). Malice As used in law this term is ambiguous and signifies either; (i) Malice in law- means the intentional doing of some wrongful act without just cause or excuse. This is its technical sense and means nothing more than intention. (ii) Malice in fact- an improper motive, not necessarily ill-will. Motive means the reason for conduct. Malice in the sense of improper motive is relevant in malicious prosecution, injurious falsehood, conspiracy, and occasionally in nuisance, and also so far as the defences of qualified privilege and fair comment are concerned in defamation. Otherwise, malice in the sense of improper motive is irrelevant in tort, for a bad motive does not make wrongful an act otherwise legal. This was the approach taken by the House of Lords in the leading case of Bradford Corporation v Pickles14 in which the respondent was held not liable for intentionally intercepting by 13 14 R v Harvey (1823) 107 ER 379 at 383. [1895] AC 587. -6- excavations on his own land underground water which would normally have flowed into the corporation’s reservoir. Even though his motive in doing so was to coerce the corporation into buying his land at a higher price, this did not make an actionable wrong, because it was settled law that no property lies in percolating water, i.e. water not flowing through defined channels. Similarly, in the reverse situation a good motive is no justification for an act otherwise unlawful. Thus, in Kirk v Gregory 15 the defendant was held liable in trespass for moving jewellery, even though she did so in good faith and as she thought for safety’s sake. Hence, Lord Devlin has said: "The Good Samaritan is a character unesteemed in English law.’’ Fault Sir John Salmond lay great stress that there should be "no liability without fault’’. For him tortious liability is necessarily fault-based. He argued: "Reason demands that a loss shall lie where it falls, unless some good purpose is served by changing its incidence; and in general the only purpose so served is that of punishment for wrongful intent or negligence’’. He claimed that in the absence of fault there is no reason why one man should insure another against loss from any cause. The punitive aspect of Salmond’s theory is indefensible since the object of damages in tort is not to punish the defendant, as in criminal proceedings, but to compensate the claimant. However, the modern law of torts is still generally based on the notion of fault or blameworthiness. Liability will not, subject to certain well-known exceptions, be imposed on a person unless he has intentionally or negligently caused some loss or damage to the claimant. This liability is usually based on personal fault. Fault is judged by an objective standard of care which one is required to observe. The case of Nettleship v Weston16 affords a convenient illustration in which Megaw LJ took the view that the standard of care in the tort of negligence was to be objectively assessed, creating a single hypothetical standard with which all persons had to comply. The defendant learner-driver in that case was required to meet the standard of a competent qualified driver. In Whitehouse v Jordan [1981] 1 All ER 267, the claimant was a baby who suffered severe brain damage after a difficult birth, alleging because the doctor had been careless. The House of Lords found that the doctor’s standard of care did not fall below that of a reasonable doctor in the circumstances and so the baby was awarded no compensation. In a case like this the court is saying that the doctor was not at fault” because he did what other doctors might have done in the same circumstances. This concept may be difficult for those not used 15 16 (1876) 1 Ex D 55. [1971] 2 QB 691. -7- to the logic of the law to grasp at first. The claimant was brain damaged and the brain damage was caused by what the doctor did, but he doctor was not legally at fault. Insurance The system of insurance provides payment of compensation in most tort cases. The insurance idea means that the burden of losses is carried by all the policy holders, so that the prudent are really subsidising the tortfeasors, and the cost of the insurance is in many cases passed on to the public at large by way of increased prices for goods and services. The contributory third party insurance to be taken by every person who uses a vehicle is well known. Under the Motor Vehicles (Third Party Insurance) Act 1958 of Ghana, motorists are compelled by statute to insure against liability for injuries to third parties.17 Employers and property owners take insurance policies to cover the cost of accidents. By the Employers’ Liability (Compulsory Insurance) Act 1969, an employer must insure against liability for bodily injury or disease sustained by his employees and arising out of the course of their employment (which includes if it is caused by another person’s skylarking on the premises of the employer during working hours).18 There is also the Employer’s Liability (Defective Equipment) Act 1969, which makes the employer liable for injury to his employees from defective equipment attributable wholly or partly to the fault of a third party, but without prejudice to the law relating to contributory negligence and to any remedy by way of contribution or in contract or otherwise. ‘Equipment’ includes any plant and machinery, vehicle, ai...
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