What is a Tort?

Simply, a tort is an act or omission which causes harm or injury to another party. Thus, an act or omission by party X which harms party Y can be considered a tort. These harms include personal injury, reputation damage, and emotional distress among others. The party who commits a tort is known as Tortfeasor.

Scholarly Definitions of a Tort:

Salmond: 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 merely equitable obligation”.

Winfield: Posited that “tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”

Peter Birks: Defines a tort as “the breach of a legal duty which affects the interests of an individual to a degree which the law regards as sufficient to allow that individual to complain on his or her account rather than as a representative of society as a whole.”

Common Elements of a Tort from Scholarly Definitions:

1. There is a civil wrong or wrongful conduct by one party. There is also a breach of some legal duty.
2. The law allows the injured party to seek redress for damages.
3. A tort is committed against an individual and not society as a whole.
4. Seeking redress is done via a civil suit.

Differences between a Tort and Other Wrongful Conduct

1. Tort versus Breach of Contract: Whilst a breach of contract is a harmful act that affects the interests of another or causes injury, it is different from a tort in the sense that the rights and duties in contracts are created by the contracting parties, whilst the courts and the law create the rights and duties in a tort. Also in contracts, an existing contractual relation (usually) ought to exist between the parties before a party can claim the commission of a wrong (breach). However, no such relation ought to exist before a tort can be committed. Whereas in a contract the amount for damages may have been specified by the contracting parties, the amount awarded as damages is unliquidated (not pre-fixed) as it intends to restore the injured party to a state before the tort. Note however that a tort and a breach of contract can occur in the same contractual relation.
2. Tort versus a Crime: Section 1 of Ghana’s Criminal Code, 1960 describes a crime as “any act punishable by death or imprisonment or fine.” For a tort, monetary compensation is usually the burden imposed on the offending party. Usually, crimes are considered wrongs against the whole society, reason why criminal cases are done in the name of the republic. However, a tort is classified as wrongdoing against an individual. Consequently, torts are tried in civil courts (like breaches of contractual obligation) whilst crimes are tried in criminal courts.

What is the Law of Torts?

The law of torts is to ensure that an injured party gets some relief from the wrongful acts of the injuring party. The law of torts can also be considered an area of law meant to protect people from the wrongful acts of others.

Aims of the Law of Torts:

Mostly, the object of a tort action is to obtain damages for the injured party. Most most scholars contend that the purpose of damages is to restore the injured party to their position before the injury. Glanville Williams questioned this position by arguing that an insurance scheme could perform the same goal without the need for a tort action. Williams then discussed four possible bases for the action for damages in Tort, beyond the prevalent view that damages are for restitutive purposes. These are appeasement, justice, deterrence and compensation.

1. Appeasement: According to Williams, the law seeks to prevent the continuance of squabbles amongst people. When a party is wronged, his vengeance may contribute to the persistence of such squabbles. Upon the receipt of monetary payment, “the victim's vengeance is bought off by compensation, which gives him satisfaction in two ways: he is comforted to receive the money himself, and he is pleased that the aggressor is discomfited by being made to pay.” Put simply, monetary payment can be seen as a bribe to the victim not to exert vengeance.
2. Justice: Williams discussed two conceptions of justice as far as monetary compensation is concerned. The first is ethical retribution, which holds that justice is served if the tortfeasor suffers some evil (which is the payment for the damage). The second conception of justice, which is ethical compensation, is that justice is served if a victim benefits from the payment of monetary compensation.
3. Deterrence: One purpose of imposing monetary compensation on an offender is to deter future offences.
4. Compensation: This is the idea that a person who has caused injury to another must make good the damage through compensation. According to Williams, the difference between compensation and ethical compensation is that compensation “does not require culpability on the part of the defendant.” There is a sense of strict liability for harms caused and compensation is deemed necessary for the harms.

Despite these diverse aims, compensation is currently regarded as the most important aim of the law of torts. Essentially, the loss of the person injured is shifted to the tortfeasor through compensation.

History of the Law of Torts:

Before 1852, and before the enactment of the Common Law Procedure Act, any legal action against another had to fit into one of the existing writs, else there would be no remedy for the plaintiff. According to Offei, the writ of trespass and the writ of trespass on the case were the main forms of action in torts. Writ of trespass was for direct and immediate injuries to land, persons, or chattels. In contrast, the writ of trespass on the case was for indirect or consequential injuries. Essentially, choosing the wrong form of action resulted in no remedy for the plaintiff.

Now, and according to Offei, a plaintiff only needs to state the facts of his case in a tort action without having to plead a particular form of action. Notwithstanding the elimination of the need to fit a tort action within a particular writ, an action in tort still needs to fall into a category of tort (such as assault, battery, inter alia). And despite the elimination of the old writs of trespass and trespass on the case, they have greatly shaped modern torts law.

General principles of liability in torts

Damnum Sine injuria (‘Damage without injury):

Not all harms or damages can give rise to an action in tort. Some damages or harms may be suffered from justifiable acts. For instance, whilst the damage of property by state planning agencies in accordance with the law is harmful, it does not give rise to an action in tort because of the legal justification for the harm.

Damnum sine injuria can also be understood as damages in which there is no infringement of any legal right of a or the plaintiff. When a party suffers injury from the acts of another, yet there was no violation of any legal right of the injured party, then the injured party cannot bring an action against the other party. Put differently, if a defendant’s act is lawful, then he cannot be sued in tort even if the act causes harm to another party. In the case of Bradford Corporation v Pickles, the sinking of shafts into land owned by Pickles stopped the flow of water into the reservoirs of Bradford Corporation. Given that sinking shafts in one’s land is legal, the damage caused to Bradford Corporation could not be the basis for a tort action. In the case of Miller v Attorney-General, and given a recognition that no legal right exists against others being rude to us, the court dismissed the contention that being rude represented an assault.

Injuria sine Damnum (‘Injury without damage’):

In contrast with damnum sine injuria, injuria sine damnum operates where there is a violation of a legal right without damage. The rule is that any violation of a legal right, even in the absence of damage, can give rise to an action in tort . For instance, trespassing (usually a wrongful entry into someone’s property) is a violation of a legal right and can give rise to a tort action even if the trespasser causes no harm or the owner of the property suffers no harm from the trespass.

The type of legal case a victim of a breach of a right can initiate is termed actionable per se. When a case is actionable per se, it means no damage ought to occur before a tort can be deemed committed. Thus, no proof of damage is required. Defamation and trespass are considered actionable per se.

The Role of Intention in Torts: Two Categories of Torts

The intention of the injuring party (or the party causing the damage to another party) divides tort into two broad categories:

1. Intentional torts: These are wrongful or harmful acts done on purpose or intentionally. Common examples of battery, assault, and trespass to land inter alia. According to Offei, “an act is intentional when it is done with full advertence to its consequences and a desire to produce them.”
2. Unintentional torts: These are unintended acts that eventually lead to injury or damage. For instance, the negligence of a party may result in injury to another party. The negligent party usually does not intend to produce the injurious outcome. For instance in Donoghue v Stevenson, the injury suffered by Mrs Donoghue was not an outcome intended by the manufacturer of the ginger beer she consumed.

Bibliography:

Birks, ‘The Concept of a Civil Wrong’ in Owen (ed), Philosophical Foundations of Tort Law (1995), 51

Stephen Offei, The law of torts in Ghana: texts, cases & materials, (Vandeplas Publishing 2014)