principles of liability in torts

The rules which determine liability in torts are the following:

• a. The principle of damage: Liability attaches because the plaintiff has suffered damage as a result of the defendant’s conduct.
• b. The principle of negligence: Liability in many torts is based on the principle of negligence or existence of fault, with the exception of strict liability torts.
• c. De minimis non curat lex: Which means the law does not bother or concern itself with trivialities and thus there is no liability. Regent V. Francesca (1981) 3 All ER 327.
• d. Strict liability: the principle of strict liability means that a defendant is liable for his tort, even though there is no fault or negligence on his part and whether or not damage is done to the plaintiff.
• e. Intentional damage is never too remote: Where damage is intentional, the wrongdoer is liable. Scott V. Shepherd (1773) 96 ER 525.
• f. Egg shell rule: Under this rule, a tortfeasor takes his victim as he finds him. Smith V. Leech Braine & Co. Ltd. (1961) 3 All ER 115.

The principles with respect to damages which exist in the Law of Torts are : a. Damnum sine injuria: This means damage without legal wrong. Under this principle, there is no legal remedy even though loss was suffered. b. Injuria sine damnum: This means legal wrong without damage. Under this principle, there is liability and remedy even when no damage has been suffered. c. Damage leading to tortuous liability and legal remedy: This is damage and legal remedy. This is the commonest situation in most torts and civil claims.

The modern test which is used by the courts for determining the liability of a defendant is the test of remoteness of damage, otherwise known as the test of reasonable foreseeability of damage. Under this test, a defendant is liable for all damages which should have been foreseen as the result of his tort by the exercise of ordinary or reasonable foresight. In determining foreseeability, the question to be asked is whether the damage alleged is reasonably foreseeable by a reasonable man. If the damage is reasonably foreseeable by a reasonable man exercising ordinary prudent care, the tortfeasor is held liable. If the damage is not reasonably foreseeable by a reasonable man, or if the damage is a far flung, or remote damage, the tortfeasor is not liable. This test was laid down by the court in the case of Wagon Mound’s case (No. 2). (1967) 1 AC 617 PC.

The general rule is that motive or malice are not relevant for tortious liability. However, motive and malice is relevant in for a successful claim in the following torts:

• a. Malicious prosecution.
• b. Conspiracy.
• c. Nuisance.
• d. Defamation.