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ASSIGNMENT COVER SHEET

Student ID: 1905504

Student Name: Patrick Chibabula

Course Code: LAW210

Course Title: Business Law

Instructor Name: Joy Mulambia

Essay/Assignment Title: The Law of Torts.

Due Date: 29th October 2020

Declaration:
I acknowledge that submitting this document binds me to the following:
To the best of my knowledge, I assert that no part of this assignment has been copied from the work of anyone else, be it another stude
or any other author or from any source except where due credit is given in the text below, or has been written for me by someone else
except where the relevant instructors and authorities have explicitly permitted such collaboration .

SIGNATURE: P. Chibabula

Instructor’s Comments:

GRADE [ ]
The Law of Torts 2

This academic paper is going to present the law of torts. The scholastic data will build up

from the definition of a tort and extend the exploitation to the following issues; The paper will

distinguish between tort, civil tort and tort damages, describe intentional torts against Persons,

intentional torts against Property, define the tort of defamation, unintentional torts and tort of

negligence, and finally conclude the above subject matter.

Torts

According to P. S. Atchuthan Pillai (1972) tortious liability arises from the breach,

through harmful conduct, of a duty primarily fixed by law. This duty is towards persons

generally and its breach is redressable by an action for unliquidated damages. As such, pillai

defines a tort as “a civil wrong. Unlike the obligations voluntarily accepted by the parties to a

contract, a tort consists of the breach of a duty imposed by the law. Further, the law of tort seeks

to provide a legal remedy for the victims of certain forms of harmful conduct. Duties are owed to

a wide range of persons and are not dependent on the existence of a contractual relationship”

Damages

The idea of damage is an important constituent of tort. Damage, in order to be actionable,

must not be remote and must not be due to independent act of third party. Further damage is not

co-extensive with the loss suffered. At times, the damages allowed can be contemptuous or

meagre because the court thinks that the action should not have been brought. Damages claimed

by the plaintiff may be general which are assessed by the court and are presumed by law. Special

damages are claims for expenses actually incurred or some loss actually suffered. Many torts are

not actionable if special damage is not suffered, R. L. Anand and L. S. Sastri (2003).
The Law of Torts 3

As per Mvunga and Ng’ambi (2006), the characteristic remedy in the law of torts is

damages but the plaintiff may also demand restitution and can pray for injunction. There are also

extra-judicial remedies. They are private or self-defense, recaption of goods, re-entry, abatement

of nuisance, distress and distress damage feasant. Thus, the following are the types of torts.

International Torts Against a Person

Trespass to person

According to Rodgers W (2003). Trespass to a person involves unauthorized touching,

restraint or other contact and the law prohibits such acts. Additionally, the law protects the

reputation and privacy of a person. Violations of these rights are actionable as torts. This is so

because, intentional tort is a category of torts that requires that the defendant possessed the intent

to do the act (harm) that caused injuries to the plaintiff and as the plaintiff proves beyond

reasonable doubt that the defendant caused the injuries, the defendant will be held liable.

Battery

Battery consists of touching another person hostilely or against his or her will, however,

slightly. If the violence is so severe as to deprive a person of any member of his body or of any

sense serviceable to him in a fight, it amounts to mayhem Glenn A, (1990). The damages, in that

case, will be greater than those awarded in case of battery. Battery corresponds to 'use of

criminal force' according to chapter 88 of the Zambian Penal Code. As no bodily harm is

necessary, even slight touching of another in anger is battery. The law here does not distinguish

between different degrees of violence because it wants to prohibit it at the very first stage. The

use of force may be direct, as in the case of slapping or pushing, or indirect,

The Law of Torts 4

Assault

An assault has been defined by Underhill (1978) as an attempt or offer to apply force to

the person of another directly or indirectly, if the persons making the attempt or offer causes the

other to believe on reasonable grounds that he has the present ability to execute his purpose. This

can be seen in Paderaite Tewari v. Dulhim Tapesha Kueri, it was held that the procedure of the

court where it ordered the arrest of defendants for not producing a lady was illegal and that an

internal medical examination of a lady, if not voluntarily submitted by her, would amount to

assault and battery. Chapter 24, Section 248 of the Zambian Penal Code, Any person who

commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable

to imprisonment for five years.

False Imprisonment

According to Mvunga and Ng’ambi (2006) false imprisonment consists in total restraint

for some period, however short, upon the liberty of another without sufficient lawful

justification. The restraint may be either physical or by mere show of authority. As mentioned

above, this tort is covered by the definition of criminal assault under English and Zambian Law.

This tort is constituted by two elements which are that; the imprisonment is without lawful

justification and it is caused by the defendant or his servant during the course of employment.

The tort of false imprisonment is, in essence, only an infringement of a person's right to freedom

of movement granted by law, which is a prerequisite of all civilized living. This freedom is

inherent in Article 22 of the Zambian Constitution when it declares that: Subject to the other

provision of this Article and except in accordance with any other written law, no citizen shall be

deprived of his freedom of movement.

The Law of Torts 5

Defamation

the term defamation is now generally defined by Mwanga Joanne. K (2009). “as the

publication of a statement which reflects on the reputation of a person and tends to lower him or

her in the estimation of the right-thinking members of the society generally, or tends to make

them shun or avoid him." According to Mwanga, Defamation is made up of two torts, that is,

libel and slander. Libel is a defamatory statement or representation in permanent form for

instance, a picture, statue, waxwork effigy, or any writing, print, mark or sign expressed to

view." Broadcasting, both radio and television and theatrical performances are, by statute, treated

as publications in permanent form. On the other hand, slander is a defamatory statement or

representation conveyed by spoken words. Thus, the main distinction between the two is that

libel is communicated in a permanent form while slander is not communicated in a permanent

form,

Intentional Infliction of Distress

The tort of infliction of distress provides that a person whose extreme and outrageous

conduct intentionally or recklessly causes severe emotional distress to another is liable for that

emotional distress, also known as tort of damage, Mackenzie Irwin (2019). In Mollien v. Kaiser

Foundation Hospitals, doctors mistakenly diagnosed a patient with syphilis. This led the patient

to suspect that her husband was conducting an extra-marital affair, ultimately causing the

breakup of their marriage. When it was revealed that the diagnosis was wrong, the patient’s

husband sued the hospital on the grounds of negligent infliction of emotional distress. The court

ruled that the risk of emotional harm to the husband from the misdiagnosis was foreseeable, and

thus held the hospital liable.

The Law of Torts 6

Intentional Torts Against Property

Trespass to Land

Trespass to land occurs where a person directly enters upon another’s land without

permission, or remains upon the land, or places or projects any object upon the land. This tort is

actionable per se without the need to prove damage. By contrast, nuisance is an indirect

interference with another’s use and enjoyment of land, and normally requires proof of damage to

be actionable, Rodgers W (2003).

Conversion of Personal Property

Conversion is often defined as other interference of the right to property of a person

without the consent of the owner and without lawful justification. Stevenson v. Economy Bank of

Ambridge, 413 Pa. 442 (Pa. 1964). A conversion occurs when a person without authority or

permission intentionally takes the personal property of another or deprives another of possession

of personal property. It is a tort which allows the injured party to seek legal relief.

Defenses in Intentional Torts

The characteristic remedy in the law of torts is damages but the plaintiff may also

demand restitution and can pray for injunction. There are also extra-judicial remedies. They are

private or self-defense, recaption of goods, re-entry, abatement of nuisance, distress and distress

damage pheasants, to Mvunga and Ng’ambi (2006)

The Law of Torts 7

Tort of Negligence

The tort of negligence is concerned with certain kinds of careless conduct which cause

damage or loss to others. The foundations of the modern law of negligence were laid down is one

of the best-known English cases. Donoghue v Stevenson 1932, Mrs. Donoghue and a friend

visited a Café in Paisley run by Mr. Minchella. The friend bought a bottle of ginger beer for Mrs.

Donoghue, which was made of black opaque glass, and poured some of the ginger beer into the

tumbler. Unsuspecting, Mrs. Donoghue drank the contents, but, when her friend refilled the

tumbler, the remains of a decomposing snail floated out. Mrs. Donoghue suffered shock and

severe gastro-enteritis as a result. She could not sue Mr. Minchella for her injuries because she

had not bought the ginger beer herself. She therefore brought an action against the manufacturer

of the ginger beer, Stevenson, arguing that he had been negligent. Therefore, The House of Lords

held that, provided Mrs. Donoghue could prove her allegations, she would be entitled to succeed.

We will never know whether there was, in fact, a snail in the bottle because the case was settled

out of court for £100. In order to establish negligence, a claimant must prove the following.

Duty of Care

It is important to know in what circumstances one person will owe a duty of care to

another. In the Donoghue v Stevenson case, Lord Atkin formulated a general test for determining

the existence of a duty of care which could be applied to most situations Lord Atkin’s statement

of the requirements for duty of care to exist involved two main elements, reasonable foresight

and proximity. A duty of care would be imposed if the damage was reasonably foreseeable and

the relationship between the parties was sufficiently close (proximate). The flexible nature of the
The Law of Torts 8

neighbor’s principle enabled the courts to recognize the existence of a duty of care in a variety of

situations unless there were policy reasons for excluding it

Breach of duty

After establishing the existence of a duty of care, as per Lord Atkin, (1996), the claimant

must show that this duty has been broken by the defendant. The test for deciding whether there

has been a breach of duty is whether the defendant has failed to do what a reasonable person

would have done or has done what a reasonable person would not have done. Whether the

conduct amounts to a breach of duty depends on all the circumstances of the case. The court will

consider a range of factors including: The likelihood that the damage or injury will be incurred,

the seriousness of any damage or injury, the cost and ease of taking precautions, and the social

need for the activity. On the other hand, this has the effect of placing the burden of proof on the

defendant who must show either how the accident occurred or that he has not been negligent.

Two conditions must be satisfied for res ipsa loquitur to come into play: The event which caused

the accident must have been within the control of the defendant, and the accident must be of such

a nature that it would not have occurred if proper care had been taken by the defendant.

In the case between Cassidy v Ministry of Health 1951, The claimant went into hospital

for treatment of two stiff fingers. When he left the hospital, he had four stiff fingers with a

useless hand. Thus, it was held that: The defendant was liable for the injuries. Res ipsa loquitur

could be applied to assist the claimant in establishing his case. Lord Denning took the view that

the claimant was entitled to say: I went into the hospital to be cured of two stiff fingers. I have

come out with four stiff fingers and my hand is useless. That should not have happened if due

care had been used.

The Law of Torts 9

Damages

Finally, the claimant must show he has suffered some damage, that it has been caused by

the defendant’s breach of duty and is not too remote a consequence of it. This can be seen in

Michael Chiluya Sata MP v Zambia Bottlers Ltd 2003, The appellant claimed for damages for

personal injuries and consequential loss and damage caused by the negligence and/or breach of

statutory duty by the respondent in the manufacture and bottling of one bottle of sprite beverage.

The facts were that the appellant bought a case of sprite from an outlet known as Melissa

Supermarket for K12,000 on 3 June, 1998. The sprite was manufactured by the respondent

company involved. When the bottle was about to be opened, it was found to contain a dead

cockroach. Neither the appellant nor any of his children opened the bottle or drunk its contents.

On seeing the cockroach in the bottle, the appellant alleged that he and his children fell sick and

went to see a private medical practitioner who treated them for nausea

Held: The trial judge took the view that as the appellant and his children did not

consume the adulterated drink and did not suffer injury there from, the claim could not succeed.

This verdict was upheld on appeal: ‘Negligence is only actionable if actual damage is proved.

There is no right of action for nominal damages. There was no injury or damages caused to the

appellant by the adulterated drink as he did not consume any part of it

Therefore, the kinds of damage which will give rise to an action in negligence are: Death,

personal injury, nervous shock, damage to property, in limited circumstances and financial loss.

As none of the aforementioned were suffered by the claimant above, the defendant was therefore

upheld on appeal. The following are the defenses in torts of negligence J. P. Gupta, (2004).
The Law of Torts 10

Consent

Consent, or assumption of risk as it is sometimes known, is a complete defense to an

action in tort. Consent may arise either from an express agreement to run the risk of injury or

may be implied from the claimant’s conduct Nowark J and Rotunda, (1995). An example of

express agreement is where a patient signs a consent form before an operation. If this formality

was not carried out, the surgeon could be sued for trespass to the person (battery). Implied

consent is often referred to as volenti non fit injuria (no harm is done to one who is willing).

Contributory negligence

Subject to Lockhart W and Kamisar Y, (1997), this defense arises where a person suffers

damage as the result partly of his own fault and partly of the fault of any other person or persons.

If contributory negligence applies, a claim in respect of that damage shall not be defeated by

reason of the fault of the person suffering the damage. However, the damages shall be reduced to

such an extent as the court thinks is just and equitable having regard to the claimant’s share of

the responsibility for the damage. The effect of such a defense is that any award of damages may

be reduced to the extent that the claimant was to blame for the injury or loss.

Statutory or common law justification

A person may have a good defense to an action in tort if he can show that his acts are

covered by statutory authority. For example, the Criminal Procedure Code Chapter 88 of the

laws of Zambia sets out police powers of arrest, entry and search. If these powers are exercised

lawfully, the Act will provide a good defense to an action in tort. Self-defense and chastisement
The Law of Torts 11

of a child by a parent are both defenses to the tort of trespass to the person, provided the force

used is reasonable

Necessity and Illegality

According to Mvunga and Ng’ambi, (2006), If a person commits a tort but only from

preventing a greater harm from occurring, he may be able to raise the defense of necessity. The

defendant must be able to show that there is an imminent threat of the danger to person or

property and that his actions were a reasonable response to the circumstances. However, it is a

general principle of law that a person will not be able to maintain a cause of action if he has to

rely on conduct which is illegal or contrary to public policy.

Basis of Liability

According to kin L. (2015), liability in tort is essentially ‘fault-based’. This means that a

claimant must prove that the defendant acted intentionally or negligently and was, therefore,

blameworthy. The defendant’s reasons or motive for committing a wrongful act are generally not

relevant to liability in tort. However, the presence of malice is relevant to some torts. Malice is

an essential ingredient of some torts, for example conspiracy requires proof of an intention to

injure the claimant rather than to promote the defendant’s legitimate interests. Malice may also

make an otherwise reasonable act unreasonable so as to establish liability, for example the tort of

nuisance. Proof of malice can defeat certain defenses, for example qualified privilege will not

protect a defendant who acted maliciously. There are two situations where tortious liability may

be imposed despite the defendant not being at fault.

The Law of Torts 12

Torts of strict liability

These are torts where the claimant can recover compensation for loss or damage without

having to prove fault or intention on the part of the defendant. Part I of the Consumer Protection

Act 1987, for example, provides that a manufacturer is strictly liable for injuries caused by his

defective products. The rule in Rylands v Fletcher and breach of statutory duty are further

examples of torts imposing strict liability.

Vicarious liability

In contribution, P. S. Atchuthan Pillai (1972) alludes to that, in certain situations, one

person may be held liable for the torts of another. This type of liability is known as vicarious

liability. An employer, for example, is vicariously liable for the torts of his employees committed

during the course of their employment. He further says “vicarious liability may also arise

between partners and, as we have seen earlier, between a principal and agent. There are various

justifications for the principles of vicarious liability: Liability is incurred by the person best able

financially to meet any award of damages, The claimant is given an additional defendant to sue,

who is more likely to be able to satisfy any judgment, Harm may be prevented by imposing

liability on the person in control of the activity, lastly the claimant is provided with a defendant

in cases where it is impossible to establish precisely who was responsible within a particular

organization for the wrongful conduct”.

Proof of damage

In proof of damage, Nowark J and Rotunda R, (1995), says that the law of tort is

concerned with providing a remedy for certain forms of wrongful conduct. In most torts, the
The Law of Torts 13

claimant must prove that he has suffered some damage, for example personal injury or damage to

his property, in order to establish liability. However, the fact that the claimant has suffered

damage is not sufficient on its own to establish liability. The claimant must also prove that the

damage was caused by the infringement of a right vested in the claimant which is recognized by

the law. For example, the construction of an out-of-town shopping center may result in a loss of

trade for town center shops. However, as the law does not provide a right to protection from

consumption, affected shopkeepers will not have a remedy, no matter how severe their losses.

Causation

As per the forgone, subject to kin L. (2015), liability in tort is dependent on making a

connection between the wrongful conduct of the defendant and the damage suffered by the

claimant. If the damage was caused by some other factor, the defendant will escape liability. The

factual cause of the damage is established by applying the ‘but for’ test, would the damage have

occurred ‘but for’ the defendant’s tortuous conduct. An example of the application of this test in

the context of a claim in negligence is given below

In the case of Barnett v Chelsea and Kensington Hospital Management Committee 1969.

Mr. Barnett, a nightwatchman, attended the defendant’s hospital in the early hours of the

morning complaining of vomiting. The casualty doctor failed to examine him but instead sent a

message that Mr. Barnett should see his own GP in the morning if he was still unwell. Mr.

Barnett died five hours later from arsenic poisoning. Therefore, it was held that. Although the

hospital was negligent in failing to examine Mr. Barnett, the failure to take reasonable care was

not the cause of his death. The evidence was that, even if Mr. Barnett had been examined,

correctly diagnosed and treated, he would have died anyway

The Law of Torts 14

Remedies in Tort

The remedies which are generally available in respect of tortuous conduct are damages

and an injunction. Damages consist of a payment of money by the defendant to the claimant.

Tort damages are intended to be compensatory, that is the aim is to put the injured party in

position he or she would have been had he not sustained the wrong. In some situations, the courts

will award non-compensatory damages, Winfield and Jolowicz, (1992).

Nominal and Exemplary damages

On one hand, nominal damages awarded in respect of torts which are actionable per se,

for example trespass to land, where the claimant cannot show that he has not suffered any loss.

On the other hand, exemplary damages are designed to punish the defendant. They are only

available in certain special cases, for example where there is arbitrary, unconstitutional or

oppressive action by government servants such as false imprisonment (Skota, 2014).

Injunction

As per Nowark J (1997), an injunction is a discretionary order of the court requiring the

person to cease committing a tort. There are different kinds of injunction: Interim injunction is a

temporary order which can be granted pending a full trial of the action, Quia timet injunction

may be ordered before any damage is done as a preventative measure, prohibitory injunction

will stop the defendant from committing a tort, mandatory injunction requires the defendant to

take positive steps to stop a tort from being committed. Thus, If the defendant fails to obey an

injunction, he or she will be in contempt of court and may be dealt with by way of fine or

imprisonment
The Law of Torts 15

Conclusion

In summary, Tortious liability arises from the breach, through harmful conduct, of a duty

primarily fixed by law. This duty is towards persons generally and its breach is redressable by an

action for unliquidated damages. A tort is a civil wrong. Unlike the obligations voluntarily

accepted by the parties to a contract, a tort consists of the breach of a duty imposed by the law.

The law of tort seeks to provide a legal remedy for the victims of certain forms of harmful

conduct. Duties are owed to a wide range of persons and are not dependent on the existence of a

contractual relationship. Although this area of law is often referred to as the law of tort, in reality

a number of distinct areas of tortious liability have been developed to protect people from the

many forms of wrongful conduct which may occur in modern society.

The Law of Torts 16

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Nowark J and Rotunda R, Constitutional Law, 5th Ed., West Publishing Company, St Paul, 1995. 

Rodgers W, Winfield and Jolowicz on Tort, 7th ed., Butterworths, London, 1992. 

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