LAW OF TORT

Charles H. Mwaihojo (LLB, LLM, MBA)

(Asst. Lecturer at Kampala International University, DSM)
0713-144090/0765-062629

TOPIC ONE: INTRODUCTION.

Introduction
Law is any rule of human conduct accepted by the society and enforced by the state for the
betterment of human life. In a wider sense it includes any rule of human action for example,
religious, social, political and moral rules of conduct. However only those rules of conduct of persons
which are protected and enforced by the state do really constitute the law of the land in its strict
sense. According to Salmond the law consists of rules recognized and acted on by courts of justice.
The entire body of law in a state (corpus juris) may be divided into two, viz, civil and criminal.

Civil law: The term may be used in two senses. In one sense it indicates the law of a particular state
as distinct from its external law such as international law. On the other side, in a restricted sense civil
law indicates the proceedings before civil courts where civil liability of individuals for wrongs
committed by them and other disputes of a civil nature among them are adjudicated upon and
decided.

Criminal Law: Criminal laws indicate the proceedings before the criminal courts where the criminal
liability of persons who have committed wrongs against the state and other prohibited acts are
determined.

1. Meaning of Tort.

Tort derived from the Latin word ‘tortum’, which means ‘to twist’. It includes that conduct which is not
straight or lawful. It is equivalent to the English term ‘wrong’.

Of the various attempts to define tort, Salmond's definition is rather popular. Salmond defines 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.

Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty arising
out of a personal relation, or undertaken by contract) which is related in one of the following ways to
harm (including reference with an absolute right, whether there be measurable actual damage or
not), suffered by a determinate person:-

a) It may be an act which, without lawful justification or excuse, is intended by the agent to
cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes
harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or property),
and treated as wrongful without regard to the actor’s intention or knowledge. This, as we
have seen is an artificial extension of the general conceptions which are common to English
and Roman law.

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 d) It may be an act or omission causing harm which the person so acting or omitting to act did
not intend to cause, but might and should with due diligence have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm which the party
was bound absolutely or within limits, to avoid or prevent.

Winfield and Jolowicz- Tortuous liability arises from 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.
A tort arises due to a person‟s duty to others in generally which is created by one law or the other. A
person who commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one,
they are called joint tortfeaser. Their wrongdoing is called tortuous act and they are liable to be sued
jointly and severally.

The principle aim of the Law of tort is compensation of victims or their dependants. Grants of
exemplary damages in certain cases will show that deterrence of wrong doers is also another aim of
the law of tort.

In common law a tort, in common law jurisdictions, is a wrong1 that involves a breach of a civil duty
(other than a contractual duty) owed to someone else. In shot tort may be defined as a personal
injury; or as "a civil action other than a breach of contract.”

2. Reception of the Law of Torts

Tanzania tort law stems from English common law, and thus its history is that of English tort law as it
developed from the twelfth century onwards. This is a history which has been well chronicled.

Source of law of tort in Tanzania

a) Common law of England received in Tanzania through receipt clauses. These principles
apply in Tanzania by virtue of section 2(2) of Judicature and Application of Laws Act (JALA)
b) Statutory laws: parliamentary has made very little inroad into law of tort. The Tanzania law of
tort is still basically common law of England. Parliament has enacted pieces of legislation on
the following areas of the tortuous liability
i) survival of cause of Action after the death of claimant
ii) liability for Fatal Accidents (read Law Reform (Fatal Accidents and
Miscellaneous Provisions) Ordinance, Cap 360 RE 2002
iii) Contributory Negligence; and
iv) Liability of Joint Tortfeasors
v) Liability of an occupier of premises (read Occupiers’ Liability Act 1968 Act
No 54 of 1968)
vi) Injuries sustained by Employees in their places of work (read Workmen’s
Compensation Ordinance Cap. 263)
c) Customary Law: this is a third sources of law of tort under which areas covered including
cattle trespass on crop (see Charles Lala vs. Abdalla Mangi Civil Appeal No. 12 of 1992
(HC) SINGIDA) and malicious prosecution (see; Marcel Kisvu vs. Timothy s/o Msuta;
Dodoma (pc) Civil Appeal No. 23/1991 Dodoma (HC)
d) Case Laws: this is a body of law developed by appellate courts in Tanzania in the course of
deciding cases. Landmark case laws which one could cite include the establishments of
malicious prosecution cases by the way of gleaning through the history of the parties

1
Glanville Williams. Learning the Law. Eleventh Edition. Stevens. 1982. p. 9

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 concerned, eg Peter Nghomango [1996] TLR; Negligence of hospital in offering medical
treatment; Medical Officer in Charge of Nkinga v. Theodoclina Alphaxad (minor) [1992]
TLR 235 (HIGH COUR; negligence in the manufacturing of drinks; Coca-Cola Kwanza
Limited V. Bilson Mbezibwe (PC) Civil Appeal No. 33 of 1999 Dodoma HC.

Otherwise most of Tanzania law of tort is common law based and was developed and shaped by
socio-economic events taking place in England.

Origin of law of tort lies in a primitive (meaning ancient) English legal system, by which all wrongs
were redressed by private revenge. This was a system of self-redress, based on the principle of
retaliation. Such savage retaliation did not constitute law, but was the germ from which the penal law
and law of tort gradually developed.

3. Theories on the Law of Torts

There are two theories with regard to the basic principle of liability in the law of torts or tort. They are:

i) Wider and narrower theory- all injuries done by one person to another are torts, unless there
is some justification recognized by law.
ii) Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not
exist.

The first theory was propounded by Professor Winfield. According to this, if I injure my neighbour, he
can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit
or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle
that all unjustifiable harms are tortious. This enables the courts to create new torts and make
defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the
saying; my duty is to hurt nobody by word or deed. This theory is supported by Pollock and courts
have repeatedly extended the domain of the law of torts. For example, negligence became a new
specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious
things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.

The second theory was proposed by Salmond. It resembles the Ten Commandments given to
Moses in the bible. According to this theory, I can injure my neighbour as much as I like without fear
of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander
or any other nominate tort. The law of tort consists of a neat set of pigeon holes, each containing a
labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed
any tort.

The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that
the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a
set of pigeon holes in untenable. However salmond argues in favour of his theory that just as
criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a
body of rules establishing specific injuries. Neither in the one case nor in the other is there any
general principle of liability. Whether I am prosecuted for an alleged offence or sued for an alleged
tort it is for my adversary to prove that the case falls within some specific and established rule of
liability and not for me to defend myself by proving that it is within some specific and established rule

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of justification or excuse. For Salmond the law must be called The Law of Torts rather that The Law
of Tort.

There is, however, no recognition of either theory. It would seem more realistic for the student to
approach the tortious liability from a middle ground. In an Indian decision, Lala Punnalal v.
Kasthurichand Ramaji, it was pointed out that there is nothing like an exhaustive classification of
torts beyond which courts should not proceed, that new invasion of rights devised by human
ingenuity might give rise to new classes of torts. On the whole if we are asked to express our
preference between the two theories, in the light of recent decisions of competent courts we will
have to choose the first theory of liability than the subsequent one. Thus it is a matter of
interpretation of courts so as to select between the two theories. The law of torts has in the main
been developed by courts proceeding from the simple problems of primitive society to those of our
present complex civilization.

4. Foundations of Tortuous Labiality

Question is generally asked in the form, “is there a law of tort or only a law of torts?” There are two
competing theories in this regard. According to one theory, there is a general principle that all
wrongs are actionable as tort unless there is any legal justification to the contrary. The other theory
says that there is no general principle of liability as such but only a definite number of torts as
trespass, negligence, nuisance, defamation etc. and the plaintiff has no remedy unless he brings his
case under one of the nominate torts.

i) It Is Law Of Tort:
Winfield is the chief supporter of this theory. He says, all injuries done to another person are torts,
unless there is some justification recognized by law. Thus according to this theory tort consists not
merely of those torts which have acquired specific names but also included the wider principle that
all unjustifiable harm is tortuous. This enables the courts to create new torts. Winfield while
supporting this theory comes to the conclusion that law of tort is growing and from time to time courts
have created new torts.

Supporters of This Theory: The theory given by Winfield has been supported by many eminent
Judges both ancient and modern. Following are some examples:-· HOLT, C.J. clearly favoured
Winfield’s theory, by recognizing the principle of ubi jus ibi remedium. He said that, if man will
multiply injuries, actions must be multiplied too; for every man who is injured ought to have
recompense [Ref. case- Ashby v. White (1703) 2 Ld. Raym. 938].
 · PRATT, C.J. said that, torts are infinitely various, not limited or confined [Ref. case-
Chapman v. Pickersgill (1762)2 Wils 145].
 In 1893, BOWEN, L.J., expressed an opinion that at common law there was a cause of
action, whenever one person did damage to another willfully or intentionally without a just
cause or excuse.
 LORD MACMILLAN observed that, the common law is not proved powerless to attach new
liabilities and create new duties where experience has proved that it is desirable [Ref.-
Donoghue v. Stevenson (1932) AC 595].

Creation Of New Torts: This theory is also supported by the creation of new torts by courts of law.
For example:-
 The tort of inducement to a wife to leave her husband in Winsmore v. Greenbank (1745)
Willes 577 (581).
 Tort of deceit in its present form had its origin in Pasley v. Freeman (1789) 3 TR 51

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  Tort of inducement of breach of contract had its origin in Lumley v. Gye (1853) 2 E & B 216.
 The tort of strict liability had its origin in Rylands v. Fletcher (1868) LR 3 HL 330.
 The tort of intimidation in Rookes v. Barnard (1964) 1 All ER 367

From the above mentioned cases it is clear that the law of tort is steadily expanding and that the idea
of its being in a set of pigeon-holes seems to be untenable.

ii) It Is Law Of Torts:

Salmond on the other hand, preferred the second alternative and for him, there is no law of tort, but
there is law of torts. According to him the liability under this branch of law arises only when the
wrong is covered by any one or other nominate torts. There is no general principle of liability and if
the plaintiff can place his wrong in any of the pigeon-holes, each containing a labelled tort, he will
succeed. This theory is also known as ‘Pigeon-hole theory’. If there is no pigeon-hole in which the
plaintiff’s case could fit in, the defendant has committed no tort.

According to Salmond, just as the criminal law consists of a body of rules establishing specific
offences, so the law of torts consists of a body of rules establishing specific injuries.

Supporters of This Theory:

 · Professor Dr. Jenks favoured Salmond’s theory. He was, however, of the view that
Salmond’s theory does not imply that courts are incapable of creating new tort. According to
him, the court can create new torts but such new torts cannot be created unless they are
substantially different from those which are already in existence [Ref.- Journal of
Comparative Legislation, Vol. XIV (1932) p. 210].
 Heuston [Editor of Salmond’s Torts] is of the view that Salmond’s critics have
misunderstood him.
 Professor Glanville Williams wrote: To say that the can be collected into pigeon-holes does
not mean that those pigeon-holes may not be capacious, nor does it mean that they are
incapable of being added to.

Criticism of Salmond’s Theory.

Professor Dr. Jenks while supporting Salmond’s theory observed that the court can create new torts
but such torts cannot be created unless they are substantially similar to those which are already in
existence. Dr. Jenks’s view does not appear to be correct as for example:-
 In Rylands v. Flethcher (1868) LR 3 HL 330 a new tort i.e. strict liability was created which
was not substantially similar to any existing tort.
 Again in Rookes v. Barnard (1964) AC 1027 a new tort i.e. intimidation was created.

5. Distinctions of Torts Liability

Distinctions between Tort and Crime

Tort Crime
i) Less serious wrongs are i) More serious wrongs have been
considered as private wrongs and considered to be public wrongs and are
have been labelled as civil wrong. known as crimes.
ii) The suit is filed by the injured ii) The case is brought by the state.
person himself.
iii) Compromise is always possible. iii) Except in certain cases, compromise is
not possible.

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iv) the wrongdoers pays iv) The wrongdoer is punished.
compensation to the injured party.

Resemblance between crime and tort

There is however a similarity between tort and crime at a primary level. In criminal law the primary
duty, not to commit an offence, for example murder, like any primary duty in tort is in rem and is
imposed by law. The same set of circumstances will in fact, from one point of view, constitute a
crime and, from another point of view, a tort. For example every man has the right that his bodily
safety shall be respected. Hence in an assault, the sufferer is entitled to get damages. Also, the act
of assault is a menace to the society and hence will be punished by the state. However where the
same wrong is both a crime and a tort its two aspects are not identical. Firstly, its definition as a
crime and a tort may differ and secondly, the defences available for both crime and tort may differ.

The wrong doer may be ordered in a civil action to pay compensation and be also punished
criminally by imprisonment or fine. If a person publishes a defamatory article about another in a
newspaper, both a criminal prosecution for libel as well as a civil action claiming damages for the
defamatory publication may be taken against him. In P.Rathinam. v. Union of India, the Supreme
Court observed, In a way there is no distinction between crime and a tort, inasmuch as a tort harms
an individual whereas a crime is supposed to harm a society. But then, a society is made of
individuals. Harm to an individual is ultimately the harm to the society.

There was a common law rule that when the tort was also a felony, the offender would not be sued
in tort unless he has been prosecuted in felony, or else a reasonable excuse had to be shown for his
non prosecution. This rule has not been followed in India and has been abolished in England.

Distinctions between Contract and Tort

Contract Tort
i) It results from breach of a duty undertaken by i) It occurs from the breach of such duties which
the parties themselves. are not undertaken by the parties but which are
imposed by law.
ii) In contract, each party owes duty to the other. ii) Duties imposed by law of torts are not towards
any specific individual but towards the world at
large.
iii) Damages for contract are liquidated. iii) Damages for tort are unliquidated.

However, in certain cases the same incident may give rise to liability both in contract and in tort. For
example, when a passenger whilst traveling with a ticket is injured owing to the negligence of the
railway company, the company is liable for a wrong which is both a tort and a breach of a contract.

The contractual duty may be owed to one person and the duty independent of that contract to
another. The surgeon who is called by a father to operate his daughter owes a contractual duty to
the father to take care. If he fails in that duty he is also liable for a tort against the daughter. In Austin

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v. G.W. Railway, a woman and her child were traveling in the defendant’s train and the child was
injured by defendant’s negligence. The child was held entitled to recover damages, for it had been
accepted as passenger.

Distinction between Tort and Breach of trust-

Tort Breach of Trust
i) Damage of tort is unliquidated. i) Damage of breach of trust is liquidated.
ii) Law of tort was part of common law. ii) Law of trust was part of Court of Chancery.
iii) Tort is partly related to the law of iii) Trust is a branch of law of property.
property.

Distinction between Tort and Quasi-Contract

Quasi contract differs from tort in that:

i) There is no duty owed to persons for the duty to repay money or benefit received unlike
tort, where there is a duty imposed.
ii) In quasi contract the damages recoverable are liquidated damages, and not
unliquidated damages as in tort.

Quasi contracts resembles tort and differs from contracts in one aspect. The obligation in quasi
contract and in tort is imposed by law and not under any agreement. In yet another dimension quasi
contract differs from both tort and contract. If, for example, A pays a sum of money by mistake to B.
in Quasi contract, B is under no duty not to accept the money and there is only a secondary duty to
return it. While in both tort and contract, there is a primary duty the breach of which gives rise to
remedial duty to pay compensation.

6. General Aspect of Tortuous Liability.

The law of torts is fashioned as an instrument for making people adhere to the standards of
reasonable behavior and respect the rights and interests of one another. This it does by protecting
interests and by providing for situations when a person whose protected interest is violated can
recover compensation for the loss suffered by him from the person who has violated the same. By
interest here is meant a claim, want or desire of a human being or group of human beings seeks to
satisfy, and of which, therefore the ordering of human relations in civilized society must take account.
It is however, obvious that every want or desire of a person cannot be protected nor can a person
claim that whenever he suffers loss he should be compensated by the person who is the author of
the loss. The law, therefore, determines what interests need protection and it also holds the balance
when there is a conflict of protected interests.

Every wrongful act is not a tort. To constitute a tort,

i) There must be a wrongful act committed by a person;

ii) The wrongful act must be of such a nature as to give rise to a legal remedy and
iii) Such legal remedy must be in the form of an action for unliquidated damages.

1. Wrongful act.

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An act which prima facie looks innocent may becomes tortious, if it invades the legal right of another
person. In Rogers v. Ranjendro Dutt, the court held that, the act complained of should, under the
circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially
affect him in some legal right; merely that it will however directly, do him harm in his interest is not
enough.

A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by
virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a
party or parties) other than the party or parties in whom it resides. Rights available against the world
at large are very numerous. They may be divided again into public rights and private rights. To every
right, corresponds a legal duty or obligation. This obligation consists in performing some act or
refraining from performing an act.

Liability for tort arises, therefore when the wrongful act complained of amounts either to an
infringement of a legal private right or a breach or violation of a legal duty.

2. Damage.

In general, a tort consists of some act done by a person who causes injury to another, for which
damages are claimed by the latter against the former. In this connection we must have a clear notion
with regard to the words damage and damages. The word damage is used in the ordinary sense of
injury or loss or deprivation of some kind, whereas damages mean the compensation claimed by the
injured party and awarded by the court. Damages are claimed and awarded by the court to the
parties. The word injury is strictly limited to an actionable wrong, while damage means loss or harm
occurring in fact, whether actionable as an injury or not.

The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria
and Injuria Sine Damno.

(i) Damnum Sine Injuria (Damage Without Injury)

There are many acts which though harmful are not wrongful and give no right of action to him who
suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage
without injury. Damage without breach of a legal right will not constitute a tort. They are instances of
damage suffered from justifiable acts. An act or omission committed with lawful justification or
excuse will not be a cause of action though it results in harm to another as a combination in
furtherance of trade interest or lawful user of one’s own premises. In Gloucester Grammar School
Master Case, it had been held that the plaintiff school master had no right to complain of the opening
of a new school. The damage suffered was mere damnum absque injuria or damage without injury.
Acton v. Blundell, in which a mill owner drained off underground water running into the plaintiff’s
well, fully illustrate that no action lies fro mere damage, however substantial, caused without the
violation of some right.

There are moral wrongs for which the law gives no remedy, though they cause great loss or
detriment. Los or detriment is not a good ground of action unless it is the result of a species of wrong
of which the law takes no cognizance.

Example: In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles was annoyed
by the refusal of Bradford Corporation to purchase his land for their water undertaking.

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Out of spite, he sank a shaft on his land, which had the effect of discoloring and diminishing the
water of the Corporation, which percolated through his land. The House of Lords held that the action
of Pickles was lawful and no matter how ill his motive might be he had a right to act on his land in
any manner that so pleases him.

In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship owners combined
together. In order to drive a ship-owner out of trade by offering cheap freight charges to customers
who would deal with them. The plaintiff who was driven out of business sued the ship-owner, for
loss caused to him by their act. The court held that a trader who is ruined by legitimate competition
of his rivals could not get damages in tort.

(ii) Injuria Sine Damno ( injury without damage)

This means an infringement of a legal private right without any actual loss or damage. In such a case
the person whose right has been infringed has a good cause of action. It is not necessary for him to
prove any special damage because every injury imports a damage when a man in hindered of his
right. Every person has an absolute right to property, to the immunity of his person, and to his liberty,
and an infringement of this right is actionable per se. actual perceptible damage is not, therefore,
essential as the foundation of an action. It is sufficient to show the violation of a right in which case
the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass
on land, etc., the mere wrongful act is actionable without proof of special damage. The court is
bound to award to the plaintiff at least nominal damages if no actual damage is proved. This principle
was firmly established by the election case of Ashby v. White (1703), in which the plaintiff was
wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary
election. The candidate from whom the plaintiff wanted to give his vote had come out successful in
the election. Still the plaintiff brought an action claiming damages against the defendants for
maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff
was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in
the plaintiff.

3. Remedy.

The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no
wrong without a remedy’. Ubi Jus Ibi Remedium is a Latin legal maxim which means "where there is
a right there is a remedy". The basic principle contemplated in the maxim is that, when a person's
right is violated the victim will have an equitable remedy under law. The maxim also states that the
person whose right is being infringed has a right to enforce the infringed right through any action
before a court. All law courts are also guided with the same principle of Ubi Jus Ibi Remedium.
Where there is no legal remedy there is no wrong. But even so the absence of a remedy is evidence
but is not conclusive that no right exists.

Conclusion
Thus to conclude, law of torts is a branch of law which resembles most of the other branches in
certain aspects, but is essentially different from them in other respects. Although there are
differences in opinion among the different jurists regarding the liability in torts, the law has been
developed and has made firm roots in the legal showground. There are well defined elements and
conditions of liability in tort law.

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This bough of law enables the citizens of a state to claim redressal for the minor or major damage
caused to them. Thus the law has gained much confidence among the laymen.

BY

Charles H. Mwaihojo (LLB, LLM, MBA)

Books Referred:
1. Dr. S.K. Kapoor, Law of Torts and Consumer Protection Act, 6th Edition 2003; Published by
Central Law Agency, Allahabad.
2. M.N. Shukla, The Law of Torts and Consumer Protection Act, 18th Edition 2010; Published
by Central Law Agency, Allahabad.
3. R.K. Bangia, Law of Torts , 19th Edition, 2008, Publisher:
3. Allahabad Law Agency.
4. Ratanlal and Dhirajlal, The Law of Torts, 24th Edition 1997 Reprint 2002; Published by
Wadhwa and Company, Nagpur, India.

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