DIPLOMA IN LAW

COURSE TITLE : LAW OF TORT

COURSE CODE : DLT 06101

LECTURER NAME : MADAM KAUNDA

STUDENT NAME : CHRISTINA .P. NGAMBA

REG. NUMBER : CM/DL/2022/62445

DATE OF SUBMISSION : 2ST DESEMBER, 2022

QUESTION:

A: With the Aid decided case discuss the function of law of tort in Tanzania .

B: Law of tort is nothing but case law, Discuss with reference to the source of law of tort in
Tanzania
 QESTION ONE; A

INTRODUCTION

Meaning of term tort

The word ‘tort’ is derived from the Latin tortus, meaning ‘twisted’. It came to mean ‘wrong’ and
it is still so used in French: ‘J’ai tort’; ‘I am wrong’. In English, the word ‘tort’ has a purely
technical legal meaning a legal wrong for which the law provides a remedy

The words tort is derived from French word of the same spelling which means wrongs but the
law of torts does not deal with all wrongs. It deals with legal wrongs and leave out non legal
wrongs. Legal wrongs are those wrongs which are followed with legal consequence.

The law of Torts

Is about misfortune and their consequence. The law of torts refers to a civil wrongs which
entitled a person injured by act or omission by another to claim damages for the injuries suffered
but only legal wrongs which are followed with legal consequence1.

SCOPE

The question was satisfied what and how law of tort its work in Tanzania and must be refereed
with relevant cases

MAIN BODY

THE FUNCTIONS OF TORT LAW

Compensation & Vindication

The primary purpose of tort law is to compensate the injured party and to vindicate his or her
rights. Tort law provides that the defendant must pay financial compensation to the plaintiff
where he or she has committed a tort and thereby caused a recognizable form of harm to the

1
Binamungu, C.S, (2002), Law of Torts in Tanzania, Mzumbe University, Research. Information and Publications
Department.
plaintiff see under the case of Edward Celestine and others v. Deogratias Paul,2. The award of
such compensation is designed to put the plaintiff back into the position he or she was in before
the injury caused by the defendant occurred. This may not always be possible. If the plaintiff is
paralyzed by the defendant’s negligence, then no amount of money is going to give back to the
plaintiff what he or she has lost. But it will provide some solace. The award of damages also
sends out a signal to the rest of society that the plaintiff’s rights have been vindicated. The award
of damage tells the world that the plaintiff’s right to be respected has been infringed. Such
awards may be particularly important where the plaintiff has not suffered actual harm e.g. the
tort of assault in trespass to the person3.

Corrective Justice and Distributive Justice

From a morality based point of view, theorists argue that the true purpose of tort law is to do
corrective justice the case of Hosia Lalata v. Gbson Zumba Mwasote4. This theory is
associated with the work of Aristotle and essentially provides that where the defendant wrongs
the plaintiff he or she has disturbed the equilibrium in the relationship between the two parties.
For example, if the negligent driver hits the pedestrian and thereby breaks his or her legs, the
relationship between the two has been disturbed. The driver has “taken away” from the
pedestrian by injuring him or her. Tort law allows the plaintiff to “take back” from the driver
through a negligence claim and award of damages. In this way the relationship between the
parties is restored. This interpretation of the function of tort law is very individualistic, it simply
views the question from the point of view of the plaintiff and defendant only. It has no regard for
the consequences of the particular case for the rest of society. For example, should a judge, when
considering a case whereby a customer in the defendant’s pub becomes so drunk having been
negligently served alcohol and who leaves the pub and is later struck by a car because of his
drunkenness, be entitled to bring a claim against the publican? If the publican negligently
continued to serve alcohol to the customer has a wrong not occurred which is deserving of
correction? An alternative moral theory is that of distributive justice. Distributive justice is
concerned with the wider implications of distribution in a given society, this form of justice has
typically been associated with relations between the State and the individual. Corrective justice,

2
[1982] TLR 347.
3
Eoin Quill, Torts in Ireland (4th ed.) (Gill & MacMillan, 2014).
4
[1980] TLR 156.
on the other hand, is primarily concerned with the relationship between individuals residing
within that state. Hence, distributive justice tends to be associated with public law and corrective
justice with private law. However, tort law, although primarily private law, is influenced by
factors outside of the direct relationship between the plaintiff and defendant. In the drunk
customer example cited above, it could be argued on distributive justice grounds that imposing
liability on the publican for what occurred would be unjust. It would create onerous obligations
(and consequent knock-on effect on insurance) on publicans to place responsibility on them for
the actions of their customers after they leave their premises. It would also undermine notions of
self-responsibility and distributive justice principles would dictate that liability should not arise.
Notions of distributive justice are replete throughout tort law e.g. the doctrine of vicarious
liability5.Justice might be perceived as requiring that a defendant be made to pay for his
wrongdoing by being ordered to compensate his victim. The defendant is forced to correct or
rectify the situation which he has brought about. This might have some appeal as a valid
argument in the context of torts which require the proof of some element of blameworthiness on
the part of the defendant, for example, trespass to the person, negligence, etc., but this analysis
runs into difficulties with the torts which are categorised as strict liability in nature, where proof
of fault is not an essential requirement. Of course, it might be argued that even though the
defendant is not at fault in such instances, nonetheless, it is her activity which has created the
risk which has resulted in the harm to the claimant, but this is difficult to rationalise in terms of
wrongdoing, involving as it must a moral dimension. Justice may be more appropriately served
by looking to the claimant’s need for compensation rather than the defendant’s moral turpitude.
This, however, would take the debate into the different, and controversial, realm of distributive
Introduction 7 justice. There are serious doubts whether tort law is capable of social engineering
in the redistribution of wealth in society.6

Deterrence

Another claimed function of tort law is that it deters wrongful behavior. Economic analysis of
law supports the notion that tort law deters future wrongful behavior through the award of
damages.

5
Bankia, R.K, (2010), Law of Torts, ( 22ndEd), New Delhi, Allahbad Law Agency
6
See op cit, Stanton, fn 1, p 16; op cit, Jones, fn 1, p 16; Atiyah, Accidents, Compensation and The Law, Cane (ed),
6th edn, Chap 7.
According to this theory, individuals are rational actors and will make what are essentially cost
effective decisions see the case of Rudolf Chavula v. Mohamed Athuman 7. They will refrain
from risky behavior on the basis that should the risk materialize into harm they will be rendered
liable in tort law. The deterrent effect of tort law is questionable. First, tort law normally only
intervenes after a wrong has been committed, thus its deterrence value is of limited usefulness.
Second, the wider public’s general awareness of tort rules is questionable. If the public are not
aware of what amounts to a tort how can they be deterred from committing such wrongs.

Punishment

Damages as a sanction on the defendant, Punitive damages are available, e.g. Norberg v.
Wynrib (doctor exchanging drugs for sex), Diminished by liability insurance, very often only
covers negligence, not intentional torts, Public disapproval

Psychological Dimension

Injury can generate intense psychological response from the victim. Provides a non-violent way
to allow the victims of wrongdoing to secure some appeasement, retribution and accountability
for their suffering see under the case of Theodolina Alphaxad v. Medical Officer Hospital8.

Education

Speaks to citizens of the importance of compliance with reasonable standards of conduct

Specific: Litigation often arises that is of particular interest to a segment of society, e.g. informed
consent

Ombudsperson Role

Tort law can be used to apply pressure upon those who wield political, economic or intellectual
power and it empowers the individual. Publicity (can put pressure especially on government),
Limitations Substantive law may be incapable of producing an acceptable decision, Economic
restraints9.
7
[1982] TLR 100
8
[1992] TLR 235
9
Turner, C, (2004), Unlocking Torts, London, Sue Hodge.
CONCLUSION
It is likely that tort law will be with us for some time to come more or less in its present form.
There may, however, over time be some significant changes of approach following the Human
Rights Act 1998. However, will cover the liability rules of tort law together with materials on the
available remedies as appropriate.

QUESTION ONE; B

INTRODUCTION
Meaning of tort means wrongs10 also is defined as a private and civil wrong for which the
wronged person may get redress in a law court.

Meaning of the term law of tort is o body of right, obligation and remedies that is applied by
court in a civil proceeding to provide relief for a person who have suffered harm for the wrongful
act of others

SCOPE

According to the question which say law of tort is nothing but case law and the aim is to
discussing with the reference to the use of sources of law of tort in Tanzania.

The law of tort in Tanzania unlike land law or criminal is primarily governed by case law (judge
made law) and supplemented by customary law and common law according to my understanding
law of tort is started being with case law

MAIN BODY

The following are the source of law of tort in Tanzania which prove that law of tort is not like
other law like land law and criminal law cause law of tort made by case law but supplemented by
customary law and common law

Statutory law

This is the body of law made by parliament of united republic of Tanzania since 1961.Statute
which were use during the colonial period and what we called statute of general application also
there the fires prevention Act 1774 this statute was enacted during the time of king Geogre.
Hence the citation 14 Geo 111.C.78 in Britain at the time of independence it was made
applicable to this country by virtue of S.2(1) of the judicature and Application of law ordinance
Cap 543 of 1961 this see at the case Of Mughuri Vs. Ismail Dharamsi [1943]TZLR 14011.

Common law

This are principles of law that were developed by English court in the course of deciding case.
There principles apply in Tanzania by virtue of S.2 of judicature and application of law
10
Fridman on torts (1990),Water Low Publishers, London p.1
11
C.S, Binamungu, (2002), Law of Torts in Tanzania
ordinance Cap 453.they are applicable only in so far as the circumstance of Tanganyika and its
inhabitant’s permit and subject to such qualification as local circumstance may render necessary
under this generation it is imperative to state through briefly the relationship between English
law and Tanzanian law in as far as the law of tort is concerned English law whether be in the
form of statute of general application or common law ,is the body of law which was inherited in
Tanzania through JALO(but now amended)to fill in the local law and since it is recognized to be
part and parcel of law of the Tanzania .12

Customary law

This is the source of law in the law of tort. Areas commonly covered by this body of law include
cattle trespass on crops. The case of Charles Lala Vs Abdallah Mangi civil Appeal no .12 of
1992(HC) Singida before mwalusanya J and malicious prosecution the case of Marcel Kisvu
V.Timoth Msuta Dodoma PC civil Appeal no23 of 1991 Dodoma (HC).Also under JALO
Cap 453 s.11(1)b it show how customary law must be applied in Tanzania.

Case law

This is a body of law developed by appellant courts in Tanzania in the the course of deciding
cases .the landmark case law which are cite it included establishment of malicious prosecusion
case by way of gleaming through the history of the parties concerned ;
Peter Nghomango [1996] TLR, Negligence of Medical treatment case of medical officers in
charge nkinaVs Thoedoctia Alphaxad(the minor)[1992]TLR235(HC), Also the case of
Negligence of manufacture of drink Cocacola kwanza Vs Belson Mbezibwa (PC) Civil appeal
case no 33 of 1999 HC Dodoma

Although there are some recent statutory developments, tort is essentially a common law subject
developed by the judges, often in response to changes in social and economic conditions. It is
important to appreciate that many of the decisions have been influenced by judicial policy
founded on pragmatic considerations and notions of social justice, such as loss distribution based
on the extended use of insurance. The Human Rights Act 1998 has added a new dimension to
judicial decision making in tort cases. Some tort decisions appear to conflict, and judges may
seem to be doing one thing when saying another. It may appear that the judge decided at the
12
Brownsword, R. Adam, J.(1996)Understanding Law ,London; Sweet and Maxwell
outset on the outcome of a case, and found reasons later to support that decision. However, as
will be seen, in the great landmark cases like Donoghue v Stevenson 13the policy behind the
decisions is usually discussed openly and in depth by the judges. All these factors may cause
confusion to students first embarking on the study of tort. It is only towards the end of the study
of the law of tort that it will be possible to form a complete picture of the subject. It is worth
returning to this first chapter at the end of the entire book to put the subject into perspective.14

CONLUSION

Generally, the evolution of the law of tort has been somewhat random, and it is an area of law
which is still developing. The process of evolution is in part a response to changes in social and
economic conditions and social values. This is acknowledged by the judges as they develop the
law. For example, in Chester v Afshar15, Lord Steyn said: I am glad to have arrived at the
conclusion that the claimant is entitled in law to succeed. The result is in accord with one of the
most basic aspirations of the law, namely to right wrongs. Moreover, the decision . . . reflects the
reasonable expectations of the public in contemporary society.

REFERENCE

BOOKS
Williams. G (1982) Leaning the law (10thEd) London Stevens
Fridman on torts (1990), Water Low Publishers, London

13
[1932] AC 562
14
Williams.G(1982) Leaning the law(10thEd)London Stevens
15
[2004] UKHL
Brownsword, R. Adam, J. (1996) Understanding Law, London; Sweet and Maxwell
Bankia, R.K, (2010), Law of Torts, (22ndEd), New Delhi, Allahbad Law Agency.
Binamungu, C.S, (2002), Law of Torts in Tanzania, Mzumbe University, Research.
Information and Publications Department.
Turner, C, (2004), Unlocking Torts, London, Sue Hodge.
CASES
Edward Celestine and others v. Deogratias Paul, [1982] TLR 347.
Hosia Lalata v. Gbson Zumba Mwasote [1980] TLR
Rudolf Chavula v. Mohamed Athuman [1982] TLR 100.
Theodolina Alphaxad v. Medical Officer Hospital [1992] TLR 235.
Peter Nghomango [1996] TLR

Cocacola kwanza V.Belson Mbezibwa(PC)Civil appeal case no 33 of 1999 HC Dodoma

Charles Lala V.Abdallah Mangi civil Appeal no .12 of 1992(HC) Singida

Marcel Kisvu V.Timoth Msuta Dodoma PC civil Appeal no23 of 1991 Dodoma (HC)

Mughuri v.Ismail Dharamsi [1943]TZLR 140.