PRINCIPLES OF LIABILITY IN TORT

Generally, each tort has its own principles in relation to liability. However, there are general rules to liability in the law of torts. They are: 

1. The Principle of Fault or Negligence: Generally, liability in torts is based on the fact that the tortfeasor due to some action or inaction of his was negligent in performing his duty or was at fault in carrying out his actions. Liability in the torts or negligence, occupier’s liability, professional negligence and so on are based on the principle of fault or negligence.
2. The Principle of Damage: By applying this principle of liability, the defendant is only liable where the claimant/plaintiff has suffered any harm or injury as a result of the defendant’s actions. However, this doesn’t apply in cases of torts which are actionable per se (no need to prove damage) like trespass.
3. De Minimis Non Curat Lex: This latin maxim encapsulates the principle; “the law does not concern itself with trivialities”. Thus, if a case is brought before the court on a trivial or insignificant matter, the court would waste no time in throwing it into the trash can.

However, if the case is not struck out and the plaintiff goes on to prove his case, the court may go on ahead to offer nominal damages. See: Regent vs Francesca (1981) 3 All ER 327, Smith vs Scott (1973) Ch.314, Delaroy hall vs Tadman (1969) 2 QB 208.

4. Intentional Damage is Never Too Remote: This principle means that if an act is done intentionally and knowingly and it results into damage being done to another party, the tortfeasor would be liable. This is regardless of the fact that the act was done in mischief, was innocent or a joke. Thus, as long as damage is foreseeable, parties would be held liable for their actions.

In the case of Scott vs Shepherd (1773) 96 ER 925, the defendant threw a lighted squib (firework) into the market and it landed on a stall. In order to save their wares, different shop owners threw it away. In this process, the squib hit the plaintiff in the face and blinded him in one eye. The court held that Shepherd was liable for his actions as injury was foreseeable from his actions.

Also, in the case of Wilkinson vs Downton (1897) 2 QB 57, The defendant jokingly told the plaintiff that her husband was engaged in a terrible accident. The plaintiff as a result of this suffered nervous shock and was hospitalised. In court it was held that the defendant was liable even though he meant no harm.

See also: Janvier vs Sweeney (1919) All ER 1056 CA.

5. Egg Shell/ Thin skull or Unusual Plaintiff Rule: in this principle of liability, a defendant is expected to take a victim as he finds him. He would not be vindicated by the fact that his actions, if done to a normal person, would not result in injury. For instance, if a defendant gives the claimant some light blows and it results into serious injury, the defendant would be liable. He cannot give the excuse that giving light blows to a normal person would not result in any injuries.

However, it should be noted that the egg-shell rule would not apply in a situation in which the condition which accelerates the injury occurs after the tortious act. Thus, in the case of Morgan vs Wallis (1974) 1 LL Rep. 165, the plaintiff suffered injury to his back while trying to avoid a rope thrown by a stevedore onto the barge while working at a port.

The defendant, who was the plaintiff’s employer, accepted liability but contested the extent of damages due to the fact that the plaintiff refused to undergo test and medical operation. The refusal to undergo tests was held to be unreasonable by the court due to the fact that the operation, if carried out, would have been successful. The court thus ruled in favour of the defendants.

6. Strict Liability: Where this rule of liability is applied, it means that the defendant is liable for his tort whether or not injury was caused to the defendant or the action was intentional. This is due to the fact that the commission of the tort in itself has already been prohibited by the law. This is also another situation in the the rule of reasonable forseeability would not be applied.

Situations in which strict liability would apply include:

• Product Liability or Consumer Protection: This is a situation in which the producer or manufacturer of a product would be held liable if his finished products are discovered to have defects which can be injurious to customers. In the case of Pearks, Gunsten & Tee Ltd vs Ward (1902) 2 KB 1, the appellant company was held liable for the acts of its employees who sold its fresh butter mixed with water.

In this case, Channel J had this to say on the nature of strict liability in relation to consumer protection:

“… The legislature has thought it so important to prevent the particular act from being committed that it absolutely forbids it to be done; and if it is done, the offender is liable to a penalty, whether he has any men rea(guilty mind) or not and whether or not he intended to commit a breach of the law…”

• Liability for Animals: This means that anyone who keeps a dangerous animal and it ends up causing injury or death to another person, he would be held liable for the act of such animal. This is regardless of the fact that he didn’t intend for the animal to cause such injury or was careful in keeping the animal. A dangerous animal is one that is not usually domesticated and is liable to do mischief, cause serious damage or even death if not restrained.

In the case of In the case of Curtis vs Betts 1 All ER 769, the defendant was taking his dog, a bull mastiff, from the house to the car. In the process, a ten year old boy came near the dog. The dog attacked and injured the child. The court held that the owner of the dog was liable. See also, Cummings vs Granger (1975) 1 WLR 1330,

• The rule in Rylands vs Fletcher(1868) LR 3 HL 330: In this case, the defendant was collecting water in a reservoir close to the plaintiff’s coal mine. The water subsequently leaked into the plaintiff’s land and caused damage. The court held that if a person brings into his land something that is capable of doing mischief if it escapes, and that thing does escape, the person who brought it would be liable for any damage caused.

This is regardless of the fact that the initial person was not negligent. It should however be noted that this rule would apply if the thing brought into the land against the natural use of such land.

SOURCES

1. Lecture on Law of Torts by Professor R.A Salman
2. National Open University