Unformatted text preview: CHAPTER ONE
NATURE OF LIABILITY FOR TORTS
Nature of the Law of Torts
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  KB 794 at 796 and in Philip Morris v Airley  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).
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  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  3 ALL ER 122.
 2 ALL ER 456 (HL). 9  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
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
14 R v Harvey (1823) 107 ER 379 at 383.
 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  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
16 (1876) 1 Ex D 55.
 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.
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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