Tuesday, 10 June 2014

TORT LAW: AN INTRODUCTION

A tort is a civil wrong committed upon the person or property, independent of a contract. It may be;
                                                  i.            a direct invasion of some legal right of the individual;  
                                                ii.            the infraction of some public duty by which special damages accrue; or
                                          iii.          the violation of some private obligation by which like damages accrue to the individual
A tort is not a breach of contract. In a contract, the obligation which is alleged to have been breached arises under an agreement between the parties.

TYPES OF TORT

i)                  Trespass to land

Trespass to land occurs where a person directly enters upon another land without lawful justification, or remains upon that land, or places or projects any objects upon that land.
Trespass to land is actionable per se i.e. it is not necessary to prove that harm was suffered to bring a claim.

ii)               Trespass to person

Trespass to person is a direct or an intentional interference with a person’s body or liberty. There are three ain forms of trespass to person namely, assault, battery and false imprisonment.

a)      Battery

Battery is the intentional and direct application of physical force to another person

b)     Assault

This is an act of the defendant which causes the claimant’s reasonable apprehension of the infliction of a battery on him by the defendant. It is an attempt to do a corporeal hurt to another person coupled with an apparent intention to do the act.
Claimant does not have to prove that the defendant intended to cause battery. It is sufficient to prove that the claimant was in reasonable fear of it.
Therefore, battery occurs where there is contact with the person and assault is used to cover cases where the claimant apprehends contact.

c)      False imprisonment

False imprisonment is the unlawful restraint of a person against their will by someone without legal authority or justification.

iii)            Nuisance

Nuisance occurs where the use of land by one occupier causes damage to a neighboring occupier or their land. There are two types of nuisance;

a)      Private nuisance

This is a continuous, unlawful and indirect interference with the use or enjoyment of land or some right over or in connection with it. Noise, smell, vibrations, animals, trees and incursions of other items from constitute private nuisance.

b)     Public nuisance

This is an unreasonable interference with the public’s right to property. Public nuisances are created by statute and are therefore criminal offences.
Public nuisances cover a wide variety of crimes that threaten the health, morals, safety, comfort, convenience or welfare of the community. Example include, obstructing a highway, polluting a river etc.

iv)             Defamation

Defamation is the public of a statement which refers on a person’s reputation and tends to lower him in the estimation of right members of the society generally. This tort protects a person’s interest in his reputation.

v)                Deceit and injurious falsehood

Deceit is a wrong whereby the claimant is misled into taking actions that are to his detriment. For instance in Pasley v Freeman, the defendant told the claimant that  a third party was credit worthy. The claimant loaned the party some money. He lost it due the third party’s inability to pay. He sued the defendant and recovered the money.
Deceit occurs where a person makes a factual misrepresentation knowing that it is false and intending it to be relied on by the recipient, and the recipient acts on it to his detriment.
Injurious falsehood – this is a fallacious statement that causes intentional damage to an individual’s commercial or economic relations.

vi)             Passing off

The tort of passing off may be summarized as follows;
                            “No man man may pass off his goods as those of another”
Passing off, refers to the misrepresentation of the goods or services one is offering as coming from another. This false impression is created through the use another provider’s recognizable trademarks, either by the production of an identical copy, or by the use of a closely comparable mark.
For a plaintiff to be successful in action for passing off, he must;
i)                   Establish a goodwill or reputation attached to the goods or services;
ii)                 Demonstrate a representation by the defendant to the public(whether intentional or unintentional) leading or likely to lead the public to believe that the goods or services offered by him are the goods or services of the plaintiff.
iii)              Demonstrate that he suffered or he is likely to suffer damage by reason of the erroneous belief created by the defendants misrepresentation. 

vii)          Negligence

The tort of negligence is a legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would regard as foreseeable risk.

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