CHAPTER ONE:
INTRODUCTION TO LAW OF TORTS
You should be familiar with the following areas
- Concept of Law of Torts
- The purpose of the Law of Torts
- Objectives of Law of Torts
- Historical Background of Law of Torts
- Sources of Law of Torts
1.1 CONCEPT OF LAW OF TORTS
The word “tort is derived from the Latin word tortus, which means ‘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.
Various school of thought have attempted to define the law of tort, but let us consider some two school of thought
1.1.1Winfield School of Thought
“Tortious liability arises from the breach of duty primary fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages” (pg.4 on the book of Rogers, Winfield & Johowicz on Tort, 15th Edn, 1998, London and Maxwell)
Analysis
Winfield on defining tort, he consider the essential principle of tortuous liability is that duty is always fixed by the law itself and not though a contract, nor, can they “negate” a tortuous liability. Winfield’s definition, liability arises from the breach of such duties by law. Any person who commits such a breach can be proceeded against in court of law by the person whose rights are breached.
The definition also consider that duty is towards persons generally: Her, the word generally implies that applies to all. For example I am duty bound not to trespass into my neighbor ‘s land. Similarly he is also duty bound not to trespass into my land. Likewise, all our other neighbors and also others who are not our neighbor’s are bound by the same law not to trespass into each other’s lands.
Action for unliquidated damages also discussed; in tort the damages are unkown and “unquantified till an action for damages arises in a court. Thereafter, the court decides the quantum of damages based on merits of the claim and circumstances of the case.
N.B Professor Winfield himself quoted to have said “ The Courts have full power to create new torts without any ceremony for each extension). Thus why he name “THE LAW OF TORT not THE LAW OF TORTS” since he believe that torts are infinitively and not limited confirmed.
1.1.2 Salmond School of Thought
In similar tone, Prof. Sir John W. Salmond in his book Samond and Heuston, Law of Tort, 18th ed. P.11, defined tort as:
A civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exlusively the breach of contract or the breach of trust or other merely equitable obligation.
Analysis
The school contents that the law of torts consist of a set of pigion in which each plantiff in order to a remedy has to fit his claim. It follow therefore named as “THE LAW OF TORTS not THE LAW OF TORT.
Tort is other than Breach of Contract or Breach of Trust: In order to determine whether the wrong is tort or not, the following steps are to be followed:
Tort is redressible by action for unliquidated damages: Damges is the most important remedy for a tort. After the commission of the wrong, it is not possible to undo the harm which has already been caused but it is the monetary compensation which can be awarded to the injured party.
1.1.3 Definition of Law of Torts
From the above definitions, one can deduce that a tort is a breach of civil duty imposed by law and owed towards all persons, the breach of which is usually redressed by an award of unliquidated damages, injunction, or other appropriate civil remedy. In other words, a tort is breach of a civil duty imposed by law, which remedy is unliquidated damages, injunction, or other appropriate remedy. Thus, tort is the breach of a civil duty imposed by law towards all persons, the remedy of which is maily monetary compensation, injuction or other approariate civil remedy.
1.2 PURPOSE OF THE LAW OF TORTS
The purpose of the law of tort is to prohibit a person from doing wrong to another person, and where a wrong is done, to afford the injured party, right of action in civil law, for compensation, or other remedy, such as an injunction directing the wrongdoier who is known as atortfeasor to stop doing the act specified in the court order and so forth.
The essential aim of the law of torts is to compensate persons harmed by the wrongful conduct of others. The substantive law of torts consists of the rules and principles which have been developed to determine when the law will and when it will not grant redress for damage suffered. Such damge takes several different forms such as physical injury to persons; physical damage to property, injury to reputation; and damage to economic interests. The Law of Torts requires every person not to cause harm to others in certain situations and if harm is caused, the victim is entitled to sue the wrongdoer for damages by way of compensation.
Thus, the purpose of the law of tort is to prohibit torts, and where a tort is committed the law of tort provides a remedy for it, by an award of damages or other appropriate relief. The law of tort deals with a wide variety of wrongs, related and unrelated. Thus, the law of tort enforces rights and liability and provides remedy in the areas covered by the law of tort which includes the following:
1.3 OBJECTIVES OF LAW OF TORTS
The objectives of the law of tort can be summarized as follows:
1.3.1 Compensation
The most obvious objective of tort is to provide a channel for compensating victims of injury and loss. Tort is the means whereby issues of liability can be decided and compensation assessed and awarded.
1.3.2 Protection of Interests
The law of tort protects a person’s interests in land and other property, in his or her reputation, and in his or her bodily integrity. Various torts have been developed for these purposes. For example, the tort of nuisance protects a person’s use or enjoyment of land, the tort of defamation projects his or her reputation, and the tort of negligence ptotects the breaches of more general duties owed to that person.
1.3.3 Deterrence
It has been suggested that the rules of tort have a deterrent effect, encouraging people to take fewer risks and to conduct their activities more carefully, mindful of their possible effects on other people and their property. This effect is reflected in the greater awareness of the need for risk management by manufacturers, employers, health providers and others. This is encouraged by insurance companies.
1.3.4 Retribution
An element of retribution may be present in the tort system. People who have been harmed are sometimes anxious to have a day in court in order to see the perpetrator of their suffering squiring under cross-examination. This is probably a more important factor in libel actions and intentional torts than in personal injury claims which are paid for by issurance companies. In any event, in personal cases are settled out of court and the only satisfaction to the claimant lies in the knowledge that the defendant will have been caused considerable inconvenience and possible expense.
1.3.5 Vindication
Tort provides the means whereby a person who regards himself or herself as innocent in a dispute can be vindicated by being declared publicity to be “in the right by a court. However, again it must be noted that many cases never actually come before a court and the opportunity for satisfaction does not arise.
1.3.6 Loss distribution
Tort is frequently recognized, rather simplistically, as a vehicle for distributing losses suffered as a result of wrong activities. In this context loss means the cost of compensating for harm suffered. This means re-distribution of the cost from the claimant who has been injured to the defendant, or in most cases the defendant ‘s insurance company. Ultimately, everyone paying insurance or buying goods at a higher price to cover insurance payments will bear the cost. The process is not a higher price to cover insurance payments will bear the cost. The process is not easily understand and it involves considerable administrative expenses which are attached in the cost of the tort system itself. There are also hidden problems attached to the system, such as psychological difficulties for claimants in using lawyer s and the courts, and practical difficulties such as the funding of claims which may mean that many who deserve compensation never receive it. It has been suggested that there are other less expensive and more efficient means than tort for dealing with such loss distribution.
1.3.7 Punishment of Wrongful Conduct
Although this is one of the main functions of criminal law, it may also play a small part in the law of tort, as there is a certain symbolic moral value in requiring the wrongdoer to pay the victim. However, this aspect has become less valuable with the introduction of insurance.
1.4 HISTORICAL BACKGROUND OF LAW OF TORT IN TANZANIA
The right to sue or be sued in the law of torts is not confined to human being alone. All along there have been restrictions on the right of human being is sue, in general or particular instances or liability of such a being to be sued e.g. personal represenatives of a deceased tortfeasor may not be sued in defamation cases.
Apart from human being, however legal person may be sue and sued. One such legal person is state. It must be remembered that at common law the crown or state was protected by maxim “the King could do no wrong”. This means that grown could not be sued for torts committed by its servants or agents. However, changes were affected in England by statutory changes in 1947 though the CrownProceeding Act, 1947. The Act made crown liable for torts committed by its servants or agents. In Tanzania the liability of the government in civil cases may be said to have gone though three major phrases:
The suits against the government between 1921 and 1967 were governed by the Government Suits Ordinance of 1921 S.4(1) of the Ordinance provide that a suit against the government could be commerce by delivery the plaint to the Registrar of the High Court copy to Attorney General. Where applicable another copy could be sent to the government servant involved in the claim in question. Then the plaint would be sent to the Government for his consent, upon the plaint would be returned to the High Court. Hence the suit could be processed according to the prevailing procedure. It was emphasized that unless and until the Governor consented to the institution of suit no court fee could be payable nor could any summons be issued to such person or public officer. Technically speaking, under rules of civil procedure Code by then suits commenced immediately after consent and the time when could pay court fee and process of issuing summons to the opponent party.
The period is notable with enactment of the Government Proceedings Act. No 1967. The main objective of the above named legislation was to do justice on an individual citizen who could have been wronged by acts or omissions of the servant of the government to file the matter in the court directly. But surprise of many people this legislation did not come to effect until January 1974 having undergoes amendment which were defeating the initial ideas. Of the three areas of reform effected by the 1967 Act the 1974 amendement left only one that is the liability of the Government tort. The 1974 statute repealed and replaced sections 6 and 7 of the 1967 Act, providing in sections 6 that no civil proceedings may be instituted against the Government to be instituted in the High Court only. The original section had given concurrent jurisdiction both the High Court and magistrate’s court to hear suits by or against the government.
The procedure, which was in use during that time, was as follows an aggrieved party would apply for consent to the Minister at that time responsible for legal affairs. The moment consent was granted a suit could be instituted by way of lodging a plaint. However, consent was not necessary where the government was to be made a party to an interpleaded suit
This third phase is marked with the ruling of his lordship Judge Mwalusanya in the case of Peter Ng’omango v Gerson M.K Mwangwa and Attorney General [1993] TLR 77. In this case the issue of ministerial as described above was declared inconstitutional and null and void and was replaced by the giving of notice of thirty (30) days to the government though the Attorney General. This legal position was consolidated by the Court of Appeal in Kukutia Ole Pumbun and Another v The Hon. Attorney General and the United Republic of Tanzania [1993] TLR 159. In this case the Court of Appeal made reference to Peter Ng’omango’s case and three others and s.6 of the Government Proceeding 1967 as amended in 1974 to be unconstitutional and void. The court went ahead and struck that out. A few months after this decision the Government quickly initiated the process which resulted into amending the law in April 1994.
The impact of the changes introduced by amendment of 1994 which came into effect on 17/01.1995 are the effect that suits against the government can now be instituted after giving a notice of 90 days, after which the matter goes to court. This means that nowdays it is easier to sue the government than it was before 1991.
1.5 SOURCES OF LAW OF TORT IN TANZANIA
1.5.1 Statutory Law
This is the body of Laws made by the Parliament of the United Republic of Tanzania since 1961: Statutes which were in use during the colonial period and what we call statutes of general application. Example, Occupiers Liability Act, 1968 [Cap 64 RE 2002], Media Services Act, (Act No. 15 of 2016), the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, [Cap 310 RE 2002], Worker’s Man Compensation Act [Cap 263 RE 2002]
1.5.2 Common Law
These are principles of Law that were developed by English Courts in the course of the deciding cases. These principles apply in Tanzania by virtue of S. 2(2) of the Judicature and Application of Laws Act [Cap 358 RE 2002]. These are applicable only in so far as the circumstances of Tanganyika and its inhabitants permit and subject to such qualification as local circumstances may render necessary. It suffices mention that common law evolved out of a society where all facts of life were regulated according to classes, particularly during the feudal era. This explains the complicated principles of common law
1.5.3 Customary Law
This is third source of law in the law of torts. Areas commonly covered by this body of law include cattle trespass on crops. Charles Lala v Abdallah Mangi Civil Appeal No. 12 of 1992 (HC) Singida before Mwalusanya J. and malicious prosecution
1.5.4 Case Laws
This is body of law developed by appellate courts in Tanzania in the course of deciding cases. Landmark case laws which could one cite include Cocacola Kwanza v Bilson Mbezibwa (PC) Civil Appeal No. 33 of 1999.