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