TORT LAW

AGENDA
-What is a Tort
-The DUTY OF CARE
-The sources of Tort law in Tunisia
-Types of Tort liability
 WHAT IS A
TORT?
A tort is an act (something a person does)* that causes harm or
injury to a person or to Property and results in a loss to the
*injured party
*Note: the “injured party” is the person who has suffered a
bodily injury or who’s property has been harmed
(the plaintiff)
A tort can also be called a tortious act
The person who commits a TORT is called the
TORTFEASOR (Defendant)
A tort can also be an omission / failure to act – where a person
has a legal duty to act example: a life guard failing to rescue a
drowning person and the person dies would also be a tort)
TYPES OF DAMAGES

-Property damage can occur in a number of ways, such as

automobile accidents; breaking, marring or staining of
valuables; or poor aim (such as baseballs or gunshots
accidentally sent through windows).
-Physical damages: body injuries
-Moral damages: emotional distress (pain suffering,
psychological choc, depression..)
The tortfeasor may have committed the tort:
- intentionally (on purpose)
OR
- Negligently (by accident=they did not take proper care)
Either way the tortfeasor must compensate the injured person for
the caused damages.
DUTY OF CARE
A tort can occur when, under the law, one
person owes another a duty of care but
fails to fulfill that duty. Every person owes
a duty to all other persons to use
reasonable care to avoid causing injury to
them or their property.
 SOURCES OF TORT LAW
The Tort law in Tunisia is mainly covered by the code of
obligations and contracts. However other sources of laws may be
used to decide on tort cases such as :
-The Code of commerce
-The Code of commercial compagnies
-The Code of personal status
-The Penal code
Etc…
 EXERCISE 1
This exercise is about intent in a criminal case.
The prosecutor in a criminal case charges Adel with battery (assault)
for hitting Nada in the face with a swinging door. Nada, the victim, is
called as the only witness and testifies that Adel pushed the door
open very fast. But then she adds that he does not believe that Adel
knew she was on the other side of the door.
Should the judge find Adel guilty of criminal battery on Nada?
YES or NO?
ANSWER

No, because Adel did not intend to hit

Nada.
Adel is not guilty of a criminal battery on
Nada because intent to cause harm is
one of the elements of the offense.
In this case there is no evidence that Adel
intended to hit Nada with the door.
EXERCISE 2
The same case comes before the judge as a tort claim filed by Nada
against Adel. Nada testifies that Adel opened the door very fast, hit
Nada who was on the other side, and that Nada had to pay medical
bills and lose a day’s work because of pain.
Can the judge order Adel to pay Nada for this damages?
Yes/No? explain
ANSWER
Yes, because even if he did not intend to hurt Nada, Adel
should compensate Nada for Adel’s carelessness.
B is correct. Nada can recover his damages from Adel
because of Adel’s carelessness, even though Adel did not
intend any harm to Nada.
EXERCISE 3
Jane is shopping in a supermarket. She turns suddenly to
say hello to a neighbor, loses her balance and falls down,
breaking her ankle.
Can Jane recover her medical bills, lost wages, and pain
and suffering costs from the supermarket?
Yes/No?
ANSWER
No, because the supermarket didn’t do or fail to
do anything that resulted in Jane’s fall.
. While the supermarket owes a duty of care to its
customers, it did nothing to violate that duty in this
case.
 EXERCISE 4
Jane is shopping in the supermarket. She turns the corner of the aisle
and slips on some milk that has been spilled on the floor by a
customer. A customer had reported the spill to an employee five
minutes earlier, but the manager had decided he needed all his staff
on the checkout lines and hadn’t gotten around to assigning anyone to
clean it up before Jane fell.
Can Jane recover her medical bills, lost wages, and pain and suffering
costs from the supermarket?
 ANSWER
A. Yes, because the supermarket owes a duty of care to
its customers, and it breached that duty when its staff
failed to remove a known hazard.
A is correct. The supermarket has a duty of care to act
reasonably to protect its customers from injury. Spilt milk
may be unavoidable, but the supermarket is responsible for
cleaning it up promptly to avoid injuries to its customers.
 DAMAGES
The plaintiff in a tort case must prove more than the fact that the
defendant owed her a duty of care and that the defendant’s conduct
breached that duty. The plaintiff also must prove that she suffered
damages as a result of the tortious conduct, and must provide evidence of
the amount of those damages. Without proof of damages, the judge or
jury has no way to determine how much to award the plaintiff.
The amount of damages decided by the court must be paid by the tortfeasor to the
victim
 DAMAGES
❖ The Tunisian Courts will order the tortfeasor to pay a financial
compensation ie: order the tortfeasor to pay money to the injured party as
compensation for his loss
❖ The main purpose of Tort Law is to compensate the injured party for the
loss resulting from the injury or harm to person or property ie: for the
tortfeasor to pay a compensation to the injured party
❖ The injured party can claim the following damages:
❖ Financial damages: which are compensatory damages for actual
”out-of-pocket” or financial loss (for example: medical expenses,
repairs to damaged property, loss of salary)
❖ Moral damages: which are damages for non-financial loss
(for example: for pain and suffering)
 FINANCIAL DAMAGES

❖ Financial damages: is compensation for actual ”out-of-pocket”

or financial loss such as:
❖ medical costs
❖ cost of repairing or replacing damaged property
❖ loss of income, profit/ salary or earnings
❖ any other financial loss caused by the tort
❖ these damages / financial losses can be quantified (calculated)
 MORAL DAMAGES
❖ Moral damages can be claimed for things such as:
❖ pain and suffering
❖ mental distress
❖ these damages cannot be calculated ie: there is no actual
financial loss
❖ the court will decide on an appropriate amount depending on the extent of
the pain and suffering, mental distress / loss of reputation
❖ the greater the pain and suffering or mental distress then the
higher the amount of moral damages)
Presentation title 21

TYPES OF TORT
LIABILITY
CONTRIBUTORY
NEGLIGENCE
❖ if the injured person’s injuries or harm to his
property were caused partly due to the injured
person’s own negligence
❖ Ie: his/her negligence CONTRIBUTED to his
personal injuries
and/or to the harm to his property
❖ then the court will REDUCE the amount of damages
that the tortfeasor must pay to the injured person
ie: apportion the damages
CONTRIBUTORY NEGLIGENCE

❖ EXAMPLE:
Ali drives through a red traffic light and collides with
Saif’s vehicle. Saif suffers severe injuries and is
hospitalized for 3 weeks.
Ali’s act of driving through the red traffic light is a TORT
and it causes injury to Saif and his vehicle.
However Saif was not wearing his seat belt at the time of
the accident. Saif was therefore also negligent. Saif
contributed to his own injuries (the injuries would not
have been as severe if he had been wearing a seat belt).
If Saif claims damages from Ali (financial and moral) then
the court will reduce Saif’s damages because of Saif’s
contributory negligence.
 JOINT & SEVERAL LIABILITY
• If there is more than one person liable for the damages in tort (usually the
tortfeasor unless it’s vicarious liability)
• Then EACH tortfeasor (or person who is vicariously liable) will be liable for
the damages
This means that the injured person (plaintiff) can claim the full amount of damages
from:
- all the tortfeasors (persons liable) jointly
= together )
–OR
from either one of the tortfeasors (persons liable) (severally)

–
JOINT & SEVERAL LIABILITY
Example:
Karim and his business partner Mohammed both own
a paint factory. Both Karim and Mohammed dumped
poisonous chemicals onto Ahmed’s farm and destroy
Ahmed’s wheat crop. Ahmed suffers a loss of 10 000
Both Karim and Mohammed are the tortfeasors and are
jointly and severally liable for Ahmed’s damages
Therefore Ahmed may claim the damages of 10 000
from:
❑ BOTH Mohammed and Karim jointly (together)
❑ or from Karim only
❑ or from Mohammed only
 VICARIOUS LIABILITY

• Normally, a person will not be liable to pay damages for a tort

committed by another person
• However, in some circumstances, the following persons will be
vicariously liable ie: liable to pay damages for the tort of another
person:

• A GUARDIAN is vicariously liable for any tort committed by a

minor or mentally incapacitated person under his
supervision

AND

• An EMPLOYER is vicariously liable for any tort committed by an

employee in the course of his or her employment.
VICARIOUS LIABILITY
Example:
Saeed is employed by Ali in Ali’s paint factory. Saeed
carelessly spills poisonous chemicals and they leak onto
Ahmed’s farm and cause harm to his potato’s field.
Ahmed suffers financial damages of TND 40 000
Saeed is the torfeasor because he committed the tort (an act
that caused harm to property)
However, Ali is vicariously liable for the damages caused by
Saeed’s tort because Saeed is an employee and the tort was
committed during his employment
So Ahmed must claim the financial damages of TND 40 000
from Ali because Ali is vicariously liable for Saif’s tort
 VICARIOUS LIABILITY

Example:
Omar has a 8-year-old son called Saif. Saif is playing
cricket in the garden and accidently break the
neighbor’s (Mohammed) window with the cricket ball.
It costs Mohammed TND 2 000 to repair the window.
Saif is the tortfeasor but Omar is vicariously liable for
the damages caused by Saif’s tort because Saif is a
minor and under the supervision of his guardian
Omar
So Mohammed must claim the financial damages of
TND 2 000 from Omar because Omar is vicariously
liable for Saif’s tort