WHAT IS A TORT?

A tort, in common law jurisdiction, is a civil (other than breach of contract) that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things.

DISTINCTION BETWEEN A CRIME AND A TORT

A crime is an offence against the state. It is a breach and violation of public rights and duties which affect the whole community. Thus a crime is a public wrong.

On the other hand a civil wrong is an infringement of private/civil rights of individuals . A civil wrong is a private wrong, a tort is distinguished from a crime because it’s a private or civil wrong well as a crime is a public wrong.

A crime is a wrong for which the common remedy is punishment. A tort is a civil wrong and the remedy given is unliquidated damages.

Since a crime is an offence against the whole community it is punished for deterrent purposes.

A tort being a civil wrong, the remedy is compensatory in nature i.e to restore the parties as far as possible to the position in which they had been had the tort not been committed. One may also argue that for a crime damages maybe awarded by court but they are pecuniary damages which differs from damages in tort.

For a crime the award of compensation is ancillary to the criminal process. In tort it is normally the object.

Tort and crime are distinguishable from each other as their proceedings differ. A civil wrong gives rise to civil proceedings i.e. which have the purpose of enforcement e.g. a right claimed by the plaintiff against the defendant.

Criminal proceedings have their object of punishing the defendant of some act he is accused of.

Some cases e.g. relating to assault, defamation where the same wrong is both civil and criminal leading to both criminal and civil proceedings. In such cases the civil and criminal remedies are not alternative but concurrent.

A tort being a civil/private wrong, the party which suffers injury is required to file the suit against the defendant, however at any stage of the proceedings, the party may withdraw the suit by entering into an agreement of compromise with the defendant.

On the other hand, a crime being a public wrong, the person who suffers is not required to launch the case on his own, here the case is filed by the state.

Tort and breach of contract

Breach of contractual liability arises out of a contract.

Tortuous liability arises out of breach of duty which is not a breach of contract

in the case of Javis vs Moy Devies Smith Vandervelle and co. (1936) 1 KB 399 at 407 the distinction in modern view between a contract and a tort maybe put as thus;

a) In tort the duty is towards persons generally e.g. we are under a duty not to injure others, in contract the duty is towards specific persons

b) In tort the action is for unliquidated damages. In contract its for liquidated damages i.e. in tort damages to be awarded depend on court’s discretion, facts and circumstances.

C) In tort the duties are fixed by law, whereas for breach of contract, the duties arise from the contract. However today the contractual duties may arise from the law eg in contracts for sale of goods and under a normal contract.

d) Some wrongs may be a breach of contract and a tort e.g. a surgeon guilty of negligence is both a tort and a breach of contract

Tort and bailment

Bailment is a delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose is accomplished be returned or otherwise disposed of in accordance to the instructions of the person delivering them.

Bailment rarely comes into being without an agreement whereas tortuous liability is not dependant on contract.

In tort the duty is owed towards the whole world whereas in bailment the duty is owed towards the bailor.

In the case of Walker vs Waston (1974) NZLR 175; The owner of a sports car lent it to 2 drunken girls while lending the car he insisted that the less drunken of them should drive. The car met an accident, the owner filed a suit for breach of the terms of bailment. However court held that there was no element of contract present when she took the car with the consent of the respondent. The Appellant assumed that ordinary duties of a bailee to take care of a chattel entrusted to her custody. Any action of breach of that duty lay in tort not in contract.