Nature and History of Torts 1
UGANDA CHRISTIAN UNIVERSITY-MUKONO
SCHOOL OF LAW
LLB 2, FIRST SEMESTER
NATURE AND HISTORY OF TORTS
Rebecca Gomes
LLB, LLM, Dip. in LP
Dan Muwolobi
LLB, LLM, Dip LP.
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it covers the topics on negligence, strict liability, trespass among others
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UGANDA CHRISTIAN UNIVERSITY-MUKONO
SCHOOL OF LAW
LLB 2, FIRST SEMESTER
NATURE AND HISTORY OF TORTS
Rebecca Gomes LLB, LLM, Dip. in LP Dan Muwolobi LLB, LLM, Dip LP.
COURSE CONTENT; as per reading list UNIT 1: INTRODUCTION TO THE LAW OF TORT The Historical Origin, Development and Functionality of the Law of Torts 1.0 The nature of Risk, compensation and Remedies in Commercial Societies 1.1 The nature of tortious liability in slave societies 1.2 The nature and incidence of tortious liability in the Feudal period 1.3 The nature and incidence of tortious liability in the era of mercantilism 1.4 The law of tort under Industrial Capitalism 1.5 Tortious liability in the era of Financial Capital 1.6 Tort in Uganda 1.7 Meaning and Functions of the Law of Tort 1.8 Definition of Tortious Liability 1.9 Law of Tort Distinguished from Criminal Law and Contract Law
- 10 Faulty and Non-Faulty Liability; Joint and Several Tortfeasors UNIT 2: TRESPASS TO THE PERSON 2.1 Assault and Battery 2.2 Infliction of mental suffering 2.3 False Imprisonment 2.4 Defences and Remedies to Assault, Battery and False Imprisonment 2.5 Malicious Prosecution UNIT 3: TRESPASS TO LAND 3.1 Definition of Trespass and Land 3.2 Actions Amounting to a Trespass: Airspace; Highway; Trespass ab initio 3.3 Defences: Consent; Lawful Authority; Necessity 3.4 Remedies: Damages; Injunctions; Re-entry; Action for the Recovery of Land
Week 1: THE HISTORY OF TORTS. A tort is defined by Winifield and Jolowicz as a civil wrong for which the remedy is a common law action for un-liquidated damages and which is not exclusively the breach of contract trust or any other equitable obligations. The development of the law is closely related to the development of society. In society people organize themselves in different ways. They have institutions that assist in the running of the society. GENTILE SOCIETY. This society was organized on the basis of clans and produced on a collective basis. This was in response to the fact that they had limited skills and instruments of production so they had to work together to sustain themselves. They lived in a natural economy as opposed to a market economy. Today human beings have developed to a level when they can produce their own means of production and can manipulate nature to their advantage. The stages of development were savagery where they had no skills at all and just appropriated nature to survive. The middle stage of savagery is marked by the discovery of fire, then the club and spear. In the upper stage of savagery, they made bows and arrows out of polished stone and hunting became established. In the lower stage of barbarism there was pottery, weaving and the domestication of animals/agriculture. In the middle stage there was introduction of bronze tools and weapons. It was then that division of labor began. In the upper stage of barbarism there was iron smelting and this led to large-scale agriculture. It also increased the effectiveness in war. The final stage was civilization. At each of these stages productivity of labor developed and there was development of skills. Because of the collectiveness of the production political organization also became collectivist. It was a classless society based on kinship ties. In many societies the clans were totemic. They were governed by taboos as a means of social regulation. They were cohesive and conflict was minimal. They were democratic and had no laws because they had no government to institute the laws. Many of the civil wrongs that today make up the corpus of tort law were nonexistent. SLAVE SOCIETY; These were differentiated in classes and were organized in states. When people became able to produce in surplus it became possible to sustain a class of persons who were not producing anything. The barbery stage then fades in to civilization. They had leisure and time to think which led to discoveries like writing. It was the persons who learnt to write who became philosophers. As a result of the fact that they were not engaged in production
their philosophies were idealist. They were aimed at protecting their status of life. They regarded mind and spirit as primary and matter and life as secondary. To them thinking was primary and labor was secondary. This resulted in classes as the philosophers started appropriating the wealth of those who produced under slavery. Those who owned property became the minority with no way of directly asserting their will on the majority. The only way they could do this was through the state as an instrument of coercion. It is important to note that not all societies were slave societies, in places like Africa there was a mixture. The mode of production was slave labor which was owned by the minority in society. They had private means of production like land owned by the minority free men on which the slaves worked. The state had a number of instruments like the prisons to impose the will of the minority on the majority. Law developed as an aspect of the state to sanctify the unfair relations. It bound the slaves to work for the masters. The state was not sufficient so they developed ideology to back it up. This was in the sense of false consciousness. It was against this background that the philosophies thrived. This ideology later achieved social prejudice as a way of maintaining the supremacy of the minority. Roman law had already begun to develop delicit that was the basis of tort. It began to reflect the interests of society, it promoted inequality in society. 90% of society had no rights and no remedies for injuries to person and property. Whichever law developed was for the benefit addressed the 10% who had property and rights. These could get remedies if they were injured or their property rights were violated. The law that was produced was a class law designed for a class of persons. The slaves could only benefit from incidental protection. Today the law plays an ideological role. Unlike during the period of slave society the law is not open about the inequality it perpetuates. The issues of human rights and principles of equality before the law it perpetuates the false notion that people are actually equal before the law and generally in society. Eventually slave societies collapsed because the empires had become unsustainable. The slave population became too small to sustain the majority who were not participating in production. As the slaves were exploited trade developed in the Roman Empire. The slaves had therefore to sustain all the trading partners. The Roman got slaves from conquest but as trade developed war and conquest ceased to be viable sources of slave labor. This inevitably led to a decline in the slave population. The rate of reproduction among the slaves was also very low because of the high proportion of males. Later slaves could be freed which further depleted the population of slave labor. This made the large- scale agricultural estates unsustainable. The Romans were overrun by the Barbarians. It was
legal action and covered various forms of conduct which was considered to be actionable. If no writ covered a particular situation, then the person had no remedy in law. The law of torts as it exists did not exist until about 1280. Court action could be begun in two ways: by the individual (appeal) and by the state (indictment). Note the strong language of criminal summons as opposed to the “humble prayer” of a plaintiff in civil actions especially petitions. All cases were regarded as criminal and there was no demarcation as we have it today. Private actions were risky because they could be tried by battle and if one lost they could lose their property or even be sent to jail so the indictment was very popular. Towards the 13th century the writ of trespass was introduced and it was the foundation of all torts and it was both civil and criminal. It was designed to address serious breaches of the peace. Trespass was both civil and criminal because if successful it ended in the compensation of the plaintiff and punishment for the defendant. As society developed there arose situations where trespass was not a direct consequence of the actions of the defendant and could not be remedied under the traditional writ of trespass. The courts created a writ analogous to trespass to remedy consequential trespass i.e. trespass on the case. Trespass on the case is what developed in to negligence to remedy consequential harm. In its early stages it was limited to persons carrying on common callings e.g. innkeepers, blacksmiths, journeymen and common carriers.
- The law further developed to apply to a person not because they pursued a common calling but because they undertook to perform something. This was called assumpsit and laid the foundation for the law of contract.
- Case expanded to cover other feudal interests like the writ of debt, the writ of detinue and account. Detinue was the wrongful detention of a chattel and was usually against a Bailee. The writ of debt was used to recover money, the price of goods, money from a surety, money promised under a sealed document and statutory penalties. Covenant dealt with undertakings under seal.
- The writ of account dealt with accountability. It was usually brought by feudal lords against baillees who collected for them rent from their estates.
- What is today called assault, battery and theft were covered by trespass because there was infliction of physical injury. When there was trespass intention was immaterial.
- False imprisonment was handled as a battery since there was application of force directly. This was aimed at protecting the rights of mobility granted by the Magna Carta.
- Malicious prosecution was not distinguished from false imprisonment but when it was it was called a writ of conspiracy.
- The writ of nuisance was designed to protect immovable property from interference especially land since it was the most important form of property.
- The writ of defamation began as a criminal case. It was not available for the peasants in the beginning since they did not have a reputation to protect. It was aimed at protecting the state from ridicule but even private individuals could benefit from its protection. The manorial courts had jurisdiction to hear these cases until they were taken over by the king’s courts. The court of Star Chamber had exclusive jurisdiction to hear defamation cases. The king’s court punished defamation and the ecclesiastical courts punished slander. THE PERIOD OF MERCANTILISM 1450 - 1700. This was a period of great change. In this period feudalism was fading and capitalism was taking center stage. It was marked by the rise of towns and merchant capital. Trade developed out of the expansion of guilds. The merchant class emerged and became differentiated from the guilds. Trade towns developed based on fairs. Trade fairs were temporary markets. It was still a natural economy and trade could not have permanence. As the fairs became permanent trade towns developed. The merchants then begun to penetrate the feudal economy. · Serfs and peasants engaged in the cottage industry and the merchants supplied them with the materials for production and bought the products from them. · The merchants begun selling luxuries to the feudal lords and money penetrated the feudal economy. There were natural limits to feudal exploitation but when money came in the nobility desired the luxuries supplied by the merchants and the level of exploitation escalated. This led to the peasant riots which rocked Europe during this period. The merchant class was growing much richer and superseded the nobility. The feudal arrangement was not compatible with a money economy so the lords begun to ask for money rent which made the serfs free to work elsewhere to earn the money to pay the lords. They then lost their ties with the land and became free peasants. This infiltration of money into the feudal economy led to the development of an exchange economy which enriched the merchants at the expense of the nobility. The people in the country side ceased to be self- sufficient and the feudal economy died. THE DEVELOPMENT OF MANUFACTORIES.
Economic activity became more and more socialized. An exchange economy developed over the natural economy. The common law begins to absorb principles of law developed by the merchants ( lexmacartoria). The merchants moved from community to community, had their own laws and their own courts called fair courts or dust courts to solve their conflicts in trade. The common law courts did not handle issues related to commercial transactions which were alien to the natural economy. The merchant law principles developed separately and applied throughout Europe. As trade developed the merchant courts begun to merge with the common law courts. The common law courts then became able to adjudicate in commercial transactions. This strengthened the bond between the nobility and the merchants. The law of contract was firmly established. The law of tort also developed to cover new areas for example transport and injuries in manufactories. This period witnessed important political developments. The overthrow of feudalism was manifested in the reformation by Henry VIII. The church as a powerful ally of the state was overthrown. There were also bourgeois revolutions to establish constitutional arrangements. The law of tort developed to cover malicious imprisonment, defamation etc. owing to the fact that this was the first exchange economy it produced principles suited to the exchange economy. Trover was developed to cover situations were the defendant was willing to return a chattel but had either willingly or wrongfully damaged it or parted with possession of it. The essence of the action was not wrongful detention but failure to return it. This is what is called conversion to day. MIS-FEASANCE. This was intended to cover breach of contract. The common law developed a mature concept of contract. They were not conversant with commercial transactions and were not sure which type of contract was enforceable and which ones were not so they developed the concept of consideration in order to deal with the question of enforceability. Detinue at first was limited to bailment but was later extended to cover situations were the defendant refused to return a chattel when it was demanded by the plaintiff. The mobility of chattels had led to a transformation in the law. Debt was also extended to cover a wider variety of debts. Liability for dangerous things was also established. An action on the case could be brought against someone who engaged in dangerous projects on his land irrespective of intention to cause damage. Trespass at that time did not have regard to questions of intent or accident. Because of the rising populations injuries were more
intentional than not soothe concept of strict liability developed to address such situations. It was adjusted to cover negligence. Defamation continues as a crime and includes sedition. It was crucial for the survival of the state because of the upheavals that rocked Europe at the time. The law of defamation and sedition were perfected at this time. In this period printing had begun and there was a need to control publication. Defamation had begun in the 16th century as a common law action. A person could bring an action for defamation. Ecclesiastical courts handled the less serious forms of defamation so there was competition with the king’s courts. However, the church did not award damages as the common law courts did. As the tort developed the essence of the case became damage and not the words. The feudal nobility was prone to gambling and dueling. They did not understand the action so they turned it into a way of making money. The courts were forced to formulate the action in more precise terms. I.e. ·
- Truth was a defense. One who spoke the truth was not liable.
- There must be publication to a third party and this was intended to exclude mere insults. · An action for defamation does not survive a plaintiff for the benefit of his estate.
- There was a distinction between libel and slander. MALICIOUS PROSECUTION. In 1589 a writ of conspiracy had been established. Conspiracy became the action for malicious prosecution. The essence of the action became damages and not the conspiracy. It covered issuing of malicious warrants against people. Lovett V Faulkner. In this case the court held that the action could not lie against one who reported a case of treason. In a later case it was reversed and the court held that when one brought a case of treason against another maliciously they were liable in malicious prosecution. Walter V Smith in the 1858 case of Knight V King the court held that the essence of the action was not the conspiracy and even one person could be sued. In Saville V Robert the court held that a) the plaintiff must have suffered damage to his name or property in an action for malicious prosecution. b) There had to be express malice and iniquity. c) The ground of the action was not conspiracy and it could be brought against a single person. d) No action could lie in a malicious civil action because the court would
DEVELOPMENTS IN THE LAW OF DEFAMATION.
This time there were developments to try and put aside the law especially in regard to public affairs. The law creates a lot of defenses to the action of defamation. There was a representative government and public affairs had to be discussed even the conduct of public officials. They had public rallies with a lot of freedom of speech. In 1840 there was a Parliamentary Papers Act, which provided for freedom from defamation liability for publishers of parliamentary papers. In 1843 Lord Campbell’s Act allowed an apology to be pleaded in mitigation of damages in an action for defamation. In 1868 there was the case of Watson V Walter, which accepted an apology to be pleaded in mitigation of damages for defamation. It extended the defense of qualified privilege to publishers of independent paper reports of parliamentary proceedings. In 1881 the Newspaper Libel Act had a lot to do with criminal defamation. It provided that where there was an accurate, fair and un malicious report of proceedings at a lawfully convened public meeting, such a report would be privileged even if it contained defamatory matter as long as the editor allowed the person concerned a chance to explain in the next issue of the paper. SUMMARY OF DEVELOPMENTS DURING THIS PERIOD. The law was concerned with the protection of private enterprise. In order to achieve this, three defenses were developed; Common employment, Contributory negligence and Voluntary assumption of risk. These were used to reduce the liability for injuries. Vicarious liability also became established during this period, thus widening liability. A person was held liable for the torts of another on the basis of the legal relationship between them (Principal/ agent, Employer/ Employee relationship). The Principal/ Employer/ Master was made liable for the torts of his agent/ employee. This was because torts in industries were more likely to be committed by employees than employers. Therefore, employers were made liable in damages for torts committed by their servants in the course of employment. Common employment; A workman could not recover damages against his employer (vicarious liability) for injuries caused to him by another workman in the same employment. In this way the benefits of vicarious liability were denied to employees in the industries.
This development was due to the fact that the majority of accidents were caused by fellow employees. Contributory negligence; If a person was injured as a result of the negligence of another person but the victim in some way contributed to his own injuries the courts could not allow him to recover damages to the full extent of his injuries. This was therefore an absolute defense at that point in time. Voluntary assumption of risk; If one consented to risks he could not recover damages in respect of the resultant injuries. This was used by employers to prevent workers in factories from recovering damages in respect of their injuries. The employers claimed that the employees entered employment knowing the risks they faced. STRICT LIABILITY .( we shall learn about it in detail next semester ) Rylands V Fletcher. The law developed strict liability in relation to the use of land. It was designed to redress disputes amongst property owners. If one committed a tort, he would be liable even if he had put in place precautions against the tort or had good intentions in committing the same. Capitalism was unplanned and the competing use of land was bound to result in injuries to some people, which made strict liability necessary. It was limited to the protection of property owners through recovery of damages to property and was not extended to personal injuries. Qns: 1. Discuss the developments in the law of torts during industrial capitalism and give reasons for those developments.
2. “The development of the law of tort during the era of industrial capitalism was influenced by the principle of welfarism more than capitalism.” Discuss. THE PERIOD OF FINANCE CAPITAL. This was a period of monopoly capital. It emerged from industrial capitalism which was geared towards profit accumulation. There was a lot of competition and massive technological innovation. Because they produced for an unplanned market and due to stiff competition some industrialists were out competed, undercut, forced to sell their capital or became subsidiaries of bigger enterprises and monopolies begun to emerge. This was due to the cost of production. The price of raw materials was rising and monopolies had to be
representatives and civil servants to boards of these industries. The result is that banks hold shares in industries and industries hold shares in banks. There is a “merger”. There is no independent bank capitalism and industrial capitalism, thus forming a new form of finance capital. Banks developed division of labor amongst themselves, i.e. certain directors for certain areas in industry and also developed research units to improve on production. The concentration of production and the monopolies arising there from, the merging of coalitions between banks and industries, is the history of the rise of finance capital. THE EXPORT OF CAPITAL Capital that was concentrated in Europe could not be used profitably due to over production (capitalist production became more and more capital intensive and the labor variable reduces) which lowers prices and the wages. There was need for cheap sources of raw materials and the need to control such sources. Capital was exported, on the basis of monopoly, from Europe to open up new markets, new sources of raw materials and infrastructure in those areas. DIVISION OF THE WORLD AMONGST MONOPOLY COMPANIES As a result of the potential export of capital, the monopolies that emerged divided the world amongst themselves. They curved out sphere of influence for themselves where they could export capital exclusively and acquire raw materials cheaply to maintain their monopoly power and keep out others e.g. I.B.E.A.Co. PARTITION OF THE WORLD The division of the world between companies could only be guaranteed by the state and its power of coercion acting on behalf of the monopolies. This was the essence of imperialism and colonization. LEGAL DEVELOPMENTS With the export of capital to places with cheap raw materials and access to markets, supernormal profits were earned. These profits provided an opportunity to make concessions that were necessary for capitalism to continue. This was because the conflict between the capitalist and the working class has sharpened. By the mid 19th century and onwards the working class had organized themselves into trade unions and socialist parties to overthrow
capitalism. They cultivated socialist ideologies like Marxism and socialist revolutions. Capitalism was therefore under siege and it became necessary to make concessions to the working class to alleviate their living conditions and maintain capitalism. The concessions are represented through welfarism to benefit the working class. There were unemployment benefits, compensation in case of injuries and insurance to protect the working class. These were not based on tort but statute. Within the law of torts, the concessions were represented in the relative liberalization of the law. a) There developed liability in negligence based on fault which was a broad basis of liability for the manufacturers, liability in negligence based on statute and the law was no longer exclusive b) The defenses of common employment, voluntary assumption of risk and contributory negligence were modified. Common employment and contributory negligence were modified by statute. Contributory negligence was no longer an absolute defense. Rather the damages a plaintiff receives are reduced. Common employment was abolished by statute - The courts modify the defense of voluntary assumption of risk. Court imposed stringent measure for it such that it no longer afforded much protection to the industries. c) The new technological developments as a result of the industrial revolution produced new risks. The chemical industry was invented and became the basis of manufacture. This led to mass production of consumer products, which presented new risks to the consumers due to the quality of products. Product liability was developed to safe guard consumers, which became the basis of the law of negligence. See Donoghue V. Stevenson d) There also developed liability for negligent misstatements mainly in respect of banks that gave investment advice and other such firms. See Hedley Byrne & Co. V. Heller Relationship between the law of tort and insurance: Insurance provided an opportunity for people to insure against new risks that technological developments presented. There was social insurance by the welfare state e.g. motor accidents insurance and health insurance. LAW OF TORTS IN UGANDA RECEPTION AND EVOLUTION OF ENGLISH LAW IN UGANDA There was no parliament or law making body but the administration was governed by the OIC. It thus brought in the English law.
1902 OIC. These continued to operate till independence when they were repealed and the judicature acts came in to carry on the substance of the application of the common law What are the present guidelines/ principles to the application of common law? Guiding principles in application of common law “substance of the common law”; court does not apply the whole common law but the substance of it applied only in so far as the circumstances permit if there is a conflict between the rules of equity and common law, the rules of equity prevail because the principles of equity (natural justice) are more acceptable and less alien than the common law. The MCA sec 10 (3) says if in any cause or matter there is a conflict or variance between the rules of equity and rules of common law with reference to the same subject matter, the rules of equity shall prevail. The contract act sec. 3 specifically provides that the common law of England shall apply. INTRODUCTION TO THE LAW OF TORTS THE NATURE OF A TORT A tort is committed against an individual (which includes artificial persons) as opposed to the State. This is because all persons have protected rights at law and abuse or violation of such rights may occasion the claim of damages, injunctions etc. The standard tort consists of the following elements: Act or omission by the Defendant; Damage occasioned to a claimant as a consequence of the act or omission; and This can be represented by the widely accepted model: act (or omission) + causation +protected interest + damage = liability
The main purpose of the law of tort law is compensating the victims of wrongdoing for the injuries they suffer as a result. FUNCTIONS AND MEANING OF THE LAW OF TORTS Functions of the Law of Torts It is not possible to assign any one aim to the law of torts, which is not surprising when one considers that the subject comprehends situations as disparate as ‘A’ carelessly running down ‘B’ in the street; or ‘C’ calling ‘D’ a thief, or ‘E’ giving bad advice to ‘F’. The law of torts has primarily four functions – 1). It provides remedies for wrongs; 2). It provides compensation for the wrongs 3). It acts as a deterrent and provides protection; and, 4). Tort law is concerned with corrective justice and distributive justice. In general, therefore, the law of torts exists for the purpose of preventing men from hurting one another, whether in respect of their property, their persons, their reputations or anything else which is theirs. The fundamental principle of this branch of the law is ‘alterum non laedere’ – to hurt nobody by word or deed. An action of tort is therefore a claim for pecuniary compensation in respect of damage suffered as the result of the invasion of a legally protected interest. An interest is a claim or demand or want or desire put forward by man in a civilized society. The task of courts is first, to decide which interests should receive legal protection, and secondly, to hold the balance between interests which have received protection. It is obvious that not all objects of human desire can or should receive legal protection. Tort Defined A tort is a civil wrong for which the remedy is a common law action for unliquidated (unspecified/unquantified) damages and which is not exclusively the breach of a contact or the breach of a trust or other equitable obligation (See pages 14-15 of SALMOND AND HEUSTON ON THE LAW OF TORTS, 26TH^ EDITION) Tortuous Liability Defined