Section A Tort (2005)

1) Using illustrations, distinguish between a breach of contract and

a. A tort - Contract law is that body of rules that govern contractual agreements
between persons or merchants. A contract is basically an agreement between
parties outlining their duties and responsibilities to one another. In contrast, tort
laws govern situations where one person has harmed or injured another person.
Tort laws cover violations where the party intentionally harmed the other person,
such as in a battery claim. Tort laws also address incidents where the party may be
held liable even if they did not act intentionally, such as in negligence claims or
strict liability claims. In a contract, the parties must enter into the agreement
knowingly and without being coerced. In order for the contract to be valid, each
party must consent to the outcome of the contract as stated in the document.
This means that one party cannot force the other to enter into the contract without
their consent. Therefore, damages in a contract claim usually have to do with a
mistake or a misunderstanding between the parties, since they are typically aware
of what they dealing with in the contract.
On the other hand, the interaction in a tort is never based on consent. Torts
generally involve an intrusion by one party into the safety, health, profit, or
privacy of the victim. In fact, if the victim consents to the tortious conduct, it can
serve as a defense that will prevent them from recovering damages.
This difference with regards to consent is reflected in the way that courts award
damages. For contracts, the purpose of a damages award is to restore the parties to
their position before the breach occurred. In a torts claim, the damages are usually
awarded to compensate the victim for their loss. Punitive damages are sometimes
awarded in a tort suit in order to punish the defendant. Punitive damages are
rarely issued in a contracts claim.
b. Crime- Torts are legal wrongs against individuals eg. Defamation, Assault and
battery.
Crimes are wrongs against the society punishable by the state eg, Murder,
Treason and RapeTorts lead the victim to be provided compesation.
~Crimes result into imposing punishment on guilt persons.
Torts are pursued as suits in courts of law.
~ Crimes are prosecuted by the state.
Torts are mostly creatures of courts eg Negligence, Trespassing and Nuisance.

~ Crimes are creature of the parliament eg, The Penal Code.

The Diffference pointed above do not always come out easily sometimes they are
blurred. For instance, while the ;law of torts is expected to award compasation
only at times it imposes pun ishments through awards of PUNITIVE DAMAGES.
It is more interested to not when one conduct leads to crime and torts. For
instance where A without reasonable cause inficted bodily injury to B' Leading to
parmanent disfigurement, this would result into A' being held criminal liable
under the Penal Code and may also be liable in Tourts in case the victim decided
to claim for compasation.

2) Explain two of the following phrases with respect to the tort of negligence.
A. The but for test o demonstrate causation in tort law, the claimant must
establish that the loss they have suffered was caused by the defendant. In most
cases a simple application of the 'but for' test will resolve the question of
causation in tort law. Ie 'but for' the defendant's actions, would the claimant have
suffered the loss? If yes, the defendant is not liable. If no, the defendant is liable.
Causation may be problematic where there exists more than one possible cause.
Various formulations have evolved to ease the burden of proving causation in
such situations.
B. Novus actus interveniens - Novus actus interveniens - Act of 3rd party
Where the new act is of a third party, the test is whether the act was foreseeable. If
the act of the third party was foreseeable, the defendant remains liable and the
chain of causation remains in tact. If the act of a third party is not foreseeable this
will break the chain of causation and the defendant is not liable for the actions of
the third party.