THE UNIVERSITY OF THE WEST INDIES

FACULTY OF LAW
Law of Torts (LAW1310)
Introduction to the Law of Torts

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Semester 2 2019-2020
WS1/SYI

READINGS

Required

Chapter 1- Commonwealth Caribbean Tort Law– Kodilinye

Chapter 1- Winfield & Jolowicz On Tort- WVH
Rogers

Recommended

Chapter 1 Tort Law- Elliot & Quinn

INTRODUCTION

Torts are defined as “civil wrongs” and can be distinguished from other legal wrongs or forms of
liability. Notably, in some circumstances, the same incident may establish liability in tort as well
as other legal wrongs.

Tortious obligations arise from a breach of duty established by law. These obligations usually
seek to protect interests, guide conduct and responsibility and/or satisfy particular moral , policy
or regulatory objectives.

In cases of breach, the law of torts is principally aimed at providing a remedy for the victim of
the tort. There is knock on deterrent effect of providing remedies which seek to put the victim in
the position he/she/it would have been if the tort was not committed.

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TORT AS DISTINGUISHED FROM OTHER WRONGS

Tort and crime

The main aim of criminal law is to protect the public and punish wrongdoers. That is why the
State (or other statutorily authorised person or body) usually prosecutes criminal matters. There
is scope for private prosecutions, however these are not common.

In contrast, the law of torts seeks to vindicate or provide redress for where the victim has
suffered loss, injury or damage. Actions in tort are initiated by the victim , not by the State.

There are some circumstances where one incident may give rise to criminal and tortious
proceedings ( e.g personal injury matters, assault, trespass).

Tort and breach of contract

Even though tortious proceedings are not brought by the state, the law of tort imposes
involuntary obligations on the defendant. Thus obligations are imposed by law (without the need
for agreement or consent) and are owed to persons generally. The remedies in tort seek to put
the victim in the position he/she/it would have been if the tort was not committed.

In contrast, contractual obligations arise by virtue of the consent and voluntary agreement of the
parties to the contract. The remedies in contract pursue a different aim, that is to either provide
redress or put the claimant into the position he/she/it would have been had the contract been
performed as agreed.

Notwithstanding the different aims of the law of contract and the law of torts, there are some
breaches of contract which may give rise to tortious liability ( e.g negligence).

Other distinctions

Torts can also be distinguished from other private or public wrongs including, human rights,
equitable wrongs and public law.

PRINCIPAL ACTORS IN TORTS

1. The tortfeasor/defendant
2. The victim/claimant

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INTERESTS PROTECTED BY THE LAW OF TORTS

1. Personal interests including physical integrity, safety and liberty- negligence, trespass to
the person, false imprisonment,
2. Interest in enjoyment of property- nuisance, conversion, trespass to goods, trespass to
land
3. Interest in reputation, image and privacy- defamation, malicious falsehood, appropriation
of personality, breach of confidence, and misuse of private information
4. Economic interests- inducing breach of contract, passing off, infringement of intellectual
property rights, interference with business relations and loss of chance
5. Public interest- malicious prosecution, nusiance

GENERAL CHARACTERISTICS

The requirements necessary to establish particular torts, vary from tort to tort. However, there
are some general characteristics of tortious liability.

1. Fault or strict liability

Most torts require fault on the part of the tortfeasor. Such ‘fault’ may be based on (a)
intention (b) negligence or (c) strict liability. Note that there is a debate as to whether torts
based on strict liability are no fault torts.

Intention

(a) Intention (i.e motive) without actually causing harm and breach of the law will not
generally give rise to tortious liability. However, in a number of torts the conduct must
be intended to establish liability and liability will arise once the conduct was intended
irrespective of the motive ( e.g battery). Relative to intentional conduct, if the contact
is accidental the requisite intention is missing.

See Allen v Flood [1898] A.C 1 at 92 per Lord Herschell “ existence of a bad motive,
in the case of an act which is not otherwise illegal , will not convert that act into a civil
wrong.”

Note that liability may also arise where there the tortfeasor is reckless. See Three
Rivers DC v Bank of England (No3) [2003] 2 A.C 1 at 192 per Lord Steyn “ reckless
indifference to consequences is as blameworthy as deliberately seeking such
consequences” The Courts assess to determine if there was reckless indifference in
the subjective sense.

Questions:

If Marc steps on Kim‟s foot while trying to get to the bar at a crowded beer lime can
a tort be established?

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 If Giselle shoots her “enemy” Jacqui during a confrontation can a tort be established?

If Thomas, while speeding down Blackrock in his new car, mounts the side walk and
hits pedestrians Anique and Dante can a tort be established?

(b) Negligence
See Blyth v Birmingham Waterworks Co ( 1865) 11 Exch 781 at 784: “ Negligence is
the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or
doing something which a prudent and reasonable man would not do.”

Many generally define negligence with reference to carelessness or failure to act

reasonably and meet the standard of care expected in the particular context. (e.g the
standard of care for a surgeon in a claim for professional negligence will be
assessed with reference to the standard of a reasonable surgeon NOT by reference
to the standard of care of a passenger on the Speighstown by-pass bus)

The standard of care is determined objectively and without reference to the

tortfeasor‟s state of mind.

(c) Strict liability

Strict liability arises where the tortfeasor may have neither been negligent nor acted
intentionally. To establish liability it is not necessary for the Claimant to prove that the
injury was calculated by the tortfeasor. Instead, strict liability torts are those where
the conduct of the tortfeasor is proscribed under specific statutes or common law. (
e.g consumer product liability under Consumer Protection legislation and Rylands v
Fletcher at common law.)

The burden of proof shifts from the Claimant to the tortfeasor/Defendant in strict
liability torts.

Some argue that „strict liability may be justified as a means of fairly distributing the
losses that inevitably arise from the commercial pursuit of some socially-desirable
but unavoidably dangerous activity’.1

2. Damage or injury to the victim/claimant.

For most torts the victim/claimant must establish that he suffered actual loss injury or
damage and that such was not too remote in order to be awarded a remedy.

1
Tort: The Law of Tort (Common Law Series) para 1.26

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 However, it is not necessary to prove actual loss , injury or damage for a limited number
of torts. Such torts are classified as actionable per se and are as follows:

Trespass to land, goods and the person

Nuisance actions which relate to infringement of proprietary rights
Libel ( to be covered in Law of Torts 2)

3. Remedy to victim

The main remedy is an award of damages which provides compensation to the victim.
Other remedies include:
(a) injunctions to prevent further loss by restraining action or mandating action;
and
(b) declarations