A look at the difficulties, defects and values in the law of tort

By: Oyafajo Ridwan Ayodeji, Obafemi Awolowo University

Some difficulties arise as a result of the rules of tort law while other difficulties can be attributed to the operation of the legal system and are more general in nature. These difficulties, defects and values of law of tort will be our subject of discuss. Before we delve into the issue at hand, however, it is necessary to introduce the concept of tort.

Due to the hustling and bustling nature of the social and commercial life, some civil wrongs arise whereby a person’s right is infringed by another or somebody breaches a duty he owes to another person which brings loss or injury to the other person. It is this situation and other civil wrongs in distinction to Crimes, Contract and Trust that led to the development of the law of Tort from the 13th century onwards in the Kings Common-law Courts.


Problem of Definition

Thereof, the first difficulty that arises in the law of Tort is the problem of definition. Academics have gone a long mile in a view to getting it a suitable and precise definition but no exact definition was gotten. Notwithstanding this, a tort can be broadly defined as a civil wrong involving a breach of duty fixed by the law, such duty being owed to persons generally and its breach being redressible primarily by an action for damages. From this definition, the essential aim of the law f torts is to compensate persons harmed by the wrongful conduct of others.

Another mode by which the problem of definition of tort was dealt was by comparing it with Contract, Criminal law and Trust. There are different torts – which include trespass to land, person and chattel, defamation, etc – covering different ways of doing wrong against someone else, and each one comprises a set of things that the claimant must prove in order to win their case. These rules are put in place with a view to have orderliness in litigation because if there are no rules guiding it, the whole system would be muddled up (claimants may bring actions at the slightest provocation) coupled with the fact that not all damage amount to injury and not all legal injury are actionable – this brings us to the principles of damnum sine injuria and injuria sine damno.

Another of this guiding principle is de minimis non curat lax which means the law does not bother or concern itself with trivialities and thus there is no liability. In addition, most torts have four elements, via; an act or omission by the defendant; harm to the claimant, of a type that the law protects against; the harm must be caused by the act or omission; strict liability; motives and malice.


Nature of Sources

There is no law without its own defects and tort is not an exception, therefore another difficulty arising out of tort is the nature of its sources. The sources of the Nigerian law of tort just like other substantive laws are; Received English law (which comprises of Common law, Equity and the Statutes of General Application); local and national statutes and judicial precedent.

Just a small number of torts take their rules from statutes, but the vast majority of tort law rules come from common law court decisions and we can see examples in the rules in Ryland v. Fletcher, Donoghue v. Stevenson and some others like that. It is this rules that the court follows when making decisions and not statutes because of the strict rule of stare decisis. Therefore, we can boldly say a difficulty arising out of law of tort is the problem of non-codification like criminal law. So, this leaves the law expansive and not defined.

An irony in the law of tort is that, after the ancient tort known as form of action represented by Royal Writs was abolished by the Common Law Procedure Act 1852 because of its difficulty. Prior to this date, the question in every tort claim was “has the Plaintiff any form of action against the Defendant?” and not “has the Defendant broken some duties owed the Plaintiff?” however, these laws are still practiced; hence the legal luminary Maitland’s remark;

the forms of action we have buried, but they still rule us from their graves.

It is in this view that the legal system practiced in a country comes in, the legal system of a particular country goes a long way in shaping the law, and maybe if the legislature or judiciary has done the right thing, this defect would not be present. Most rules of tort practiced in Nigeria are from the old common law decisions and old statutes predating 1900, these rules have gone archaic and they don’t fit into the modern day tort but they are still followed here.

Another point that should be noted is that some of these statutes have been abolished while some have been repealed, so it is left to the Nigerian legislatures to enact laws dealing with the current problematic areas in the law of tort which have recently been the subject of statutory reform such as liability for animals, liability for defective premises and defective equipment and so on. Lesson can be learnt from the defunct western Nigeria legislature that did not gullibly receive all the statutes in force in England but made some recommendable changes law of torts reform in 1961. It is also left to the courts to recognize their overriding powers to determine what the current law in England is and apply them only as the local jurisdiction allows.


Defects in the Nigerian Law of Tort

Having mentioned some difficulties in the law of tort, it has some defects also. All it defects contained in the law of tort in Nigeria cannot be mentioned because it will take a century to list them.

Since there aren’t enough statutes guiding the law of tort in Nigeria, a defect is that of interpretation. The judge interprets some provisions by his mere initiative. An example of this is the “reasonable care” a defendant is required to take. This is not a fixed and easily definable standard because reasonableness is not a static matter, what is reasonable to Mr. X might not to Mr. Z.

Another aspect we would like to look into is the aspect of fault in liability. Most jurisdictions have subjected this to strict liability; it is unfair for a man to be held liable for a tort he does not have a fault like we saw in Ryland v. Fletcher where the defendants were held liable for the carelessness of their independent contractors.

Also, another aspect worthy of mention is the fact that the Plaintiff has to prove that some recognized tort has been committed and he can only do this by showing that the Defendant conduct comes within the definition of trespass, nuisance or negligence as the case may be. This process frustrates the case for the Plaintiff and increases the length and cost of tort cases coupled with unpredictability of which party to win the case and this might bring loss to the plaintiff, making him lose in two ways.

Another issue facing the law of tort in Nigeria is that of the two extreme theories of the foundation of tortuous liability – which are not in concurrence – propounded by Professor Winfield. The wider theory that all unjustifiable act are tortuous and the narrower or pigeon hole theory that fixates all torts to one aspect while regarding any act – no matter how harmful – committed outside this set of tort does not amount to tort.


Values in the Nigerian Law of Tort

Notwithstanding these few defects mentioned, the Nigeria law of tort has some values (that it protects). Most torts deal with the protection of personal injuries; tort law aims to compensate the person who has suffered wrong doing, and covers a wide range of different situations where one person (or organization) has caused harm to another or infringed their legal rights

Many individuals would have been injured without compensation if not for the intervention of the law of tort, so the purpose of the law of tort is to adjust those losses or injuries sustained as a result of the social and commercial activities engaged by individuals in order to achieve a desirable social result.

Also, relevant here is a sentence from Professor W. L. Prosser, in his book Prosser on Tort where he propounded his theory of social engineering as the purpose of the law of tort:

“… There remains the body of law which is directed towards the compensation of individuals rather than the public for losses which they have suffered in respect of all their legally recognized interest, rather than one interest only, where the law considers that compensation is required, this is the Law of Tort.”

The purpose of tort is to protect an interest as it relates to law, thus if the interest does not relate to law, it is not the business of tort. Other interests protected by tort besides personal interest are; trespass to chattel, nuisance, land, detinue, negligence protects an individual against interference with his property or right to property. The tort of defamation protects against the damage to reputation. The law of tort also protects physical health, finances, judicial process and family relations.

Thus the value of tort is to prohibit tort, and where a tort is committed,, the law of tort provides a remedy for it, by and award of damages or other appropriate reliefs, thus we can say again that the law of tort serves a deterrence to people and companies from putting profits ahead of safety and also limits the government’s role.

To summarize, the concept of law of tort is inevitable so far we engage in social and commercial activities. It is also not a new development, it has been as far back as the 13th century, and it has its roots mainly in common case laws. However, the old rule has been abolished and special reforms have been going on it, to make it develop with the society. One of its difficulties is the lack of a suitable definition. It was inherited in Nigeria from English Common Law and Statutes of General Application.

Since the law of tort is concerned primarily with the adjustment of conflicting interest of individuals to achieve a desirable social result, there is a need to review and reform some these received laws – that have become defective –  by the Nigerian Legislature so has to meet up with the modern standard, funnily, this laws still operating Nigeria have either being repealed or abolished.

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