1

INTRODUCTION
The word tort derives from the Norman-French word tort which means wrong. In English law the
word tort is used to denote certain civil wrongs. In medieval England certain anti social conduct
such as treason, murder or theft were classified as offences against the King or the state because
of their seriousness and far reaching consequences. However, certain wrongs done by one person
to another yet not so serious as to amount to a breach of the kings’ peace were disregarded by the
king and left to be enforced by the person claiming to be injured or wronged. And his claim if
any was for damages or money compensation for the injury inflicted upon him.

This paper discuses the view that the law of torts may be described as an area that seeks to
regulate individual conduct within society. Thus this discussion will proceed by defining a tort
and then it will highlight various forms of behaviour that amounts to torts or civil wrong as
evidence of the foregoing view.

THE NATURE OF A TORT

The nature of a tort can best be understood by making a distinction between a tort and a crime
and making a distinction between a tort and a breach of contract. (a) Tort and a crime; the main
object of criminal proceedings is punishment. Whereas the main object of proceedings in tort is
not punishment but compensation to the plaintiff. It is important to note that the same facts may
disclose a crime and a tort for example if A assaults B this is both a crime and a tort. (b) Breach
of contract and a tort; in contract the duties are fixed by the parties themselves, they impose
terms and conditions themselves by their agreement. In tort on the other hand the duties are fixed
by law (common law or statute) and arise by operation of the law itself. Here also the same facts
may give rise to a breach of contract and a tort. For instance, if A employs privately a surgeon B
to operate on A’s son, the surgeon B owes A, a contractual duty of care. If he fails in that duty he
is also liable to A’s son in Tort.1

DEFINITION
When defining a tort there are two definitions given by two prominent scholars that can not go
without mention. First Salmond defines a tort as
1
Lancer, M and Vanstone, B.(1997) A Level Law. London: Letts education. p35
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“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

Professor P.H. Winfield asserts that:

“Tortious liability arises from the breach of a duty primarily fixed law; such duty is
towards persons generally and its breach is redressible by an action for unliquidated
damages.”3
The important elements that can be deciphered from the definition above are the following: first
that tortuous liability is based on the existence of a duty fixed by the law and not the parties and
this is what distinguishes the law of tort from the law of contract. The second element is that
when this duty is breached the injured party acquires the right to bring an action for unliquidated
damages or monetary compensation.

Therefore, this branch of the law regulates individual behaviour by placing obligations on
individuals which prevent them from engaging in conduct that is likely to injure others and in the
event that they do, the law provides remedies for such breach the most common being damages.4

Thus this part of the paper will be devoted to a discussion of the different types of torts and the
remedies that follow a breach.

There are many types of torts. For example the tort of defamation which consists of slander and
libel, the tort of nuisance, the tort of negligence, and the tort of trespass which can further divide
trespass into trespass to the person trespass to land and trespass to chattels others. It is important
to note that a tort is a wrong which is not so serious as to amount to a crime, which is why it is
remedied by damages as opposed to punishment. This does not mean however that that a tort is
exclusively a tort while a crime is exclusively a crime there are instances in fact many where one
2
Keenan, D.(2007) Smith and Keenan’s English law. (15 th ed) London: Pearson Longman p545
3
Ibid
4
Robb.G. and Brookes,J.P. (1965) An Outline of the law of contract and tort( 3 rd ed) Tottenham: Walker &
Company. p13
 3

act or omission can amount to both for example an assault is both a crime and a tort, however
the criminal action will precede the civil action.

NEGLIGENCE
The tort of negligence is the widest and most common of all torts. It covers a wide range of acts
and omissions. The tort of negligence is based on three basic element which all need to be
proved for a complainant to succeed in his action. Firstly, that the defendant was under a duty of
care to the plaintiff. Secondly, that that duty was breached, and third that as a result the plaintiff
has suffered damage.5 When does such a duty arise? The existence of this duty is illustrated and
well defined in the landmark case of Donoghue v Stevenson6 by Lord Atkin when he
pronounced the neighbour principle as follows:
“You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who then is my neighbour? The answer
seems to be persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when am directing my
mind to the acts or omissions which are called in question”
The facts of Donoghue v Stevenson are that a man bought from a retailer a bottle of ginger beer
manufactured by the defendant. The man gave the bottle to his lady friend who became ill from
drinking the contents. The bottle contained the decomposed remains of a snail. The bottle was
opaque so that the noxious substance could not have been seen and was not discovered until the
lady was refilling the glass. The consumer sued the manufacturer in negligence. Held that the
manufacturer was liable to the consumer. Because even though there was no contractual relation
between the consumer and the retailer as she did not purchase the drink there was a duty of care
under the law of torts. Other examples of relationships where a duty of care exists are an
employer towards his employees; or a doctor towards his patients.

The standard of care is that of an ordinary prudent man, in other words that care which a
reasonable man would use or show in the circumstances of the particular case under
consideration. For example where a workshop got flooded it was held that the use of saw dust to

5
Keenan, D.(2007) Smith and Keenan’s English law. (15th ed) London: Pearson Longman. p562
6
(1932) AC 562
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cover the floor was a reasonable preventative measure to absolve the defendant from liability in
Latimer v A.E.C. Ltd.7 The remedy for negligence is normally damages.

NUISANCE
There are two types of nuisance namely public and private nuisance. Private nuisance is the
unlawful interference with peoples use of property or with their health, comfort of the public
generally or some section of the public.8 Thus it is a public nuisance to obstruct the public
highway9 or to erect a factory that emits excessive smoke so as to cause discomfort to persons in
the locality. A public nuisance is both a crime and a tort in A-G v PYA Quarries 10 it was stated
that it is primarily a crime prosecuted by the Attorney General. It is only actionable as a tort if
the claimant has suffered damage over and above other members of the public. In Tarry v
Ashton11 the owner of a house erected a protruding lamp overhanging the highway. Owing to
faulty repair work the lamp fell and injured a passer-by. Held that the injured party could sue in
respect of the public nuisance.

Private Nuisance; is an unlawful interference with a mans use of his property or with his health ,
comfort or convenience . it is , in fact a wrongful act or omission causing (i) material injury to
property or sensible personal discomfort.12 The basis rule enunciated in Sedleigh Denfield v
O’Callaghan13 is that you should so use your property that you cause no harm to another; live and
let live.

The following remedies exist for nuisance: (i) abatement this means self help the injured party ca
stop the nuisance by removing the cause. For example in Lemmon v Webb (1895) A cut the
roots and branches projecting from the neighbours trees. (ii)Damages this is the ordinary
common law remedy. (iii) Injunction this is don by an application to court for an order to retrain

7
(1953) 2ALL ER 449
8
Keenan, D.(2007) Smith and Keenan’s English law. (15 th ed) London: Pearson Longman. p568
9
A-G v Gastonia Coaches The Times, 12 November 1976
10
(1957) 1 All ER 894
11
(1876) 1 QBD 314
12
Keenan, D.(2007) Smith and Keenan’s English law. (15 th ed) London: Pearson Longman. p570
13
(1940) AC 880
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further acts constituting the nuisance, if it can be proved that the nuisance will recur and do
irreparable damage to the plaintiff. For example in Christie v Davey 14 a music teacher used her
house for frequent practice and musical evenings. The defendants’ premises were separated by a
party wall. The defendant became exasperated by the music lessons and retaliated by knocking
on the wall beating trays, whistling and shrieking. Held that the defendant acted maliciously and
unreasonably and was liable an in junction was issued to restrain him from the annoying conduct.

TRESPASS
There are three types of trespass namely trespass to the person, trespass to goods and trespass to
land.
Trespass to the Person This action takes three forms (i) assault, (ii) battery, and (iii) false
imprisonment. Assault is an attempt or threat to apply unlawful force to the person of another
whereby that other person is put in fear of violence. For example where A points a gun at B
which A Knows to be unloaded though B does not and is so near that it might produce injury if
it is loaded and went off this constitutes an assault as was the case in R v St George .15 Mere
words do not constitute an assault, however. The intent must be shown in the acts not just in
speech. Words are nevertheless relevant in certain circumstances and may prevent what in other
circumstances would amount to an assault. Thus in Tuberville v Savage16 a man laid his hand on
his sword and said “if it were not assize time I would not take such language from you.” This
was held not to be an assault. Battery; consists in applying force however slight to the person of
another hostilely or against his will. For example punching someone in the face or throwing a
squib at him as in Scott v Shepherd.17 False Imprisonment; consists in the infliction of bodily
restraint of another without lawful justification. The restraint must be complete thus to restrain a
person from going in three ways but leaving him free to go forth is not false imprisonment as
was held in Bird v Jones18

14
(1893) 1 Ch 316
15
(1840)
16
(1669) 2 Keb 545
17
(1773) 2Wm Bl 892
18
(1845) 7 QB 742
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Trespass to land this may result where one enters on the land of another or remains on the land
or throws any material on the land of another against his will. 19

Trespass to goods this is the intentional or negligent interference with the possession of goods
of another the interference must be direct and forcible for example to throw anothers books out
the window. 20

The following remedies are available for trespass; damages that is monetary compensation
which is available for all three forms of trespass. An injunction or ejectment which are only
available for trespass to and. An injunction will be used to prevent the continuance or repetition
of the act of trespass. Ejectment on the other hand is a self help remedy which can be used by an
occupier of land after he has requested the trespasser to do so peacefully but he must only use
reasonable force.21

DEFAMATION
Defamation is a tort whose purpose is to protect people’s reputations from injury or from being
tarnished. Defamation is defined in Byrne v Deane22 as the publication of a false statement
which exposes a man to hatred, ridicule or contempt or causes him to be shunned or avoided by
right thinking members of society generally. In other word it is a false statement about a man to
his discredit. Defamation falls in two classes namely Libel which a statement is made in
permanent form and slander which is in a transitory form. It is also important to note that libel is
both a tort and a crime. The main legal remedies for defamation are damages and injunction.

DECEIT

19
Robb.G. and Brookes,J.P. (1965) An Outline of the law of contract and tort( 3 rd ed) Tottenham: Walker &
Company. pp213-215
20
ibid
21
ibid
22
(1937) 1 KB 818
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This is a tort which consists in making a willfully false statement with the intent that the plaintiff
shall act in reliance on it and with the result that he does so act and suffers harm in consequence.
For example in Edgington v Fitzmaurice23 The claimant was induced to lend money to a
company by a representation made by the directors that the money would be used to improve the
company’s buildings when in fact the directors intended to use the money to pay off the
company’s existing debts. The directors where held liable for deceit. The remedy for deceit is
damages

CONCLUSION
Indeed the law of torts regulates the conduct of individuals within society. It achieves this by
describing certain conduct which is harmful to others as tortious. And then it goes further to
provide redress for injury resulting from such conduct in the form of remedies such as damages
or injunctions. All in all in addition to other branches of law such as criminal law the law of torts
enables people to live in peace with one another by imposing rights and duties to govern their
behaviour.

BIBLIOGRAPHY
23
(1885) 29ChD 459
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BOOKS
Lancer, M and Vanstone, B.(1997) A Level Law. London: Letts education.

Robb.G. and Brookes,J.P. (1965) An Outline of the law of contract and tort( 3 rd ed) Tottenham:
Walker & Company.

Keenan, D.(2007) Smith and Keenan’s English law. (15th ed) London: Pearson Longman

CASES CITED
A.Gv PYA Quarries (1957) 1 All ER 894
Donoghue v Stevenson (1932) AC 562
Sedleigh Denfiel v O Calaghan (1940) AC 880
Edgington v Fitzmaurice (1885) 29ChD 459
Byrne v Deane (1937) 1 KB 818
Tarry v Ashton(1876) 1 QBD 314
Bird v jones (1845) 7 QB 742
Scott v Shepherd (1773) 2Wm Bl 892
Tubervile v Savage (1669) 2 Keb 545
Latimer v AEC ltd (1953) 2ALL ER 449
Christie v Davey (1893) 1 Ch 316
R v St George