Arthur Sike

LLB (Unza), LLM (Turin, Italy), AHCZ,

Dip. Business Admin.
 “The Province of tort is to allocate responsibility
for injurious conduct”………..as elucidated by one
of the eminent scholars in the legal
fraternity….Lord Justice Denning

 Therefore, the commonly acceptable definition is

that a tort is a “civil wrong”
 A tort is committed against an individual (which
includes artificial persons) as opposed to the State;

 All persons have protected rights at law;

 Abuse or violation of such rights may occasion the

claim of damages, injunctions etc….
 The Standard Tort consists of the following
element:
 Act or omission by the Defendant;

 Damage occasioned to a claimant as a

consequence of the act or omission ; and
 This can be represented by the widely accepted
model:
ACT (or omission) + CAUSATION
+PROTECTED INTEREST + DAMAGE =
LIABILITY
 Having looked at the meaning of Tort and the
main components that constitute a tort; let us
examine the functions of the law of tort.

 The main purpose of tort law is to compensate the

victims of wrongdoing for the injuries they
suffer as a result.


 Tort law is generally not concerned with

punishing, or casting moral judgment on the
wrongdoer - it simply compels the person who
caused the harm to compensate the person who
suffered the harm.

 The law of torts has primarily four functions –

1). It provides remedies for wrongs;

2). It provides compensation and vindication (i.e

proof, evidence, justification);

3). It acts as a deterrent and provides protection; and

4). Tort law is concerned with corrective justice and

distributive justice.
 In the light of the foregoing, it then follows that
tortious liability may be described as:

 the duty of care, and negligence of that duty, with

respect to persons with whom there is no contractual
liability.
“For example, if a person fails to maintain his
property and part of his property falls off and injures
another person, the property owner is liable for the
damages to that person, even though it may be a
passerby with whom there are no contractual
obligations”.
 In simple terms therefore, tortious liability can be
summarized as follows:
“A body of rights, obligations, and remedies -that is
applied by courts in civil proceedings- to provide
relief for persons who have suffered harm from
the wrongful acts of others. The person who
sustains injury or suffers pecuniary damage as
the result of tortious conduct is known as the
plaintiff, and the person who is responsible for
inflicting the injury and incurs liability for the
damage is known as the defendant or tortfeasor”
 The main characteristics distinguishing torts from
other branches of the law are as follows:
 Under Criminal Law-

 the typical remedy for such injurious conduct is an

action for unliquidated damages, compensation for
damage suffered whereas in criminal law, the
intention is to punish the accused; and
 In the injurious conduct is regarded from the point
of view of the person injured, not that of society
generally. It is thus civil not criminal liability!
 Under Contract Law-

 The responsibility for the injurious conduct does

not arise out of agreement between the parties as in
breach of contract.
PLEASE NOTE however, that the same
circumstances may give rise to liability both in tort
and contract, e.g., the negligence of a doctor: or to
both civil and criminal liability, e.g., assault: or to
all three, e.g., dangerous driving by a cab
driver………...
 What is fault based tort?

 This question is largely concerned with the mental

element of tort.
 “It may not be sufficient for the claimant to
demonstrate that the defendant’s act or omission
caused them damage in order to succeed in an
action……it may also be necessary for the claimant to
show a particular state of mind on the part of the
defendant. Where such a state of mind needs to be
proved, it is said to be a fault-based tort……..where no
such state of mind needs to be proved it is said to be a
strict liability tort……”
 Such propositions have a historical background as
concepts like insurance were limited hence the
need to ascertain the state of mind/ or proof of
fault in order to succeed in an action..

 With time, fault based tort has shifted from being a

state of mind to being a judicially set standard of
conduct which is objectively set for policy reasons.
 What is malice?

• In tort, there are two conventionally acceptable

definitions which are as follows:
a) The intentional doing of some wrongful act
without proper excuse; and
b) To act with some collateral or improper motive
• With respect to (b) there is a basic principle that
malice is irrelevant in tort law. If one has a right
to do something then his motive in doing it is
irrelevant.
 Consider the most celebrated case of
BRADFORD CORPORATION V. PICKLES
[1895] AC 587.

 In brief the case relates to a defendant who sank a

shaft in his land, thereby spoiling the supply of
underground water. The court held that the fact
that the defendant had a bad motive did not make
an otherwise lawful action unlawful.
 There are two exceptions to this basic principle:

 Where malice is a significant ingredient of the tort for

example:
(a) malicious prosecution; and
(b) Nuisance

The case of CHRISTIE V. DAVEY [1893]1 CH316

“the Plaintiff and defendant lived in adjourning houses. The
plaintiff gave music lessons and this annoyed the
defendant . In retaliation the defendant banged on the wall
and shouted while the lessons were in progress. The
plaintiff was held to be entitled to an injunction because of
the defendant’s malicious behavior”
 The law of tort is primarily concerned with the
effect of injurious conduct than with the motive
which inspired it. So bad intention will not
necessarily make the infliction of damage
actionable.
1. Trespass to persons;
2. Trespass to property;
3. Negligence;
4. Defamation;
5. Nuisance;
6. Strict liability*; and
7. Liability of occupiers and employers*
 In the event that damage is wrongfully inflicted by
two or more persons either jointly (e.g. master and
servant, joint occupiers, persons having a common
design) or severally but concurrently (e.g. two
negligent drivers causing an accident to a third
party) the following principles apply:

I. One tortfeasor has a right of contribution from any

other tortfeasor who is or would if sued have
been, liable in respect of the same damage;
II The Court awards whatever contribution is just
and equitable, having regard to the extent of the
joint tortfeasor’s responsibility for the damage;
this in the court’s discretion amount to complete
indemnity.
Read the case of : LISTER V. ROMFORD
ICE AND COLD STORAGE CO. [1957]
A.C.555 H.L
 ANY QUESTIONS????
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 SikeA@zra.org.zm/arthsike@yahoo.com