Prepared by Paul Mukiibi & Joyce Tukahirwa

DEPARTMENT OF LAW AND CONTINUING LEGAL EDUCATION

DIPLOMA IN LAW COURSE

KAMPALA CAMPUS

COURSE TITLE: LAW OF TORTS

LECTURER (S):

Paul MUKIIBI (Head, Department of Law Reporting,

Research & Law Reform & Professional Advisor, LDC)
Joyce TUKAHIRWA (Professional Advisor, LDC Kampala
Campus)

COURSE LEADER: Mr. Precious B. NGABIRANO (Head, Department of

Law & CLE & Professional Advisor, LDC)

TOPIC 01: Introduction to the Law of Torts

DATE: Friday May 21st 2021

TIME: 04:00PM-08:00PM (EVENING)

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VENUE: AUDITORIUM

TOPIC 01: INTRODUCTION TO THE LAW OF TORTS

CONTENTS
1.0Introduction
2.0Objectives
3.0Main content
3.1Definition of tort
3.2The purpose of the law of torts
3.3The Rule in Smith v. Selwyn
4.0 Conclusion
5.0 Summary
6.0 Revision Questions
7.0 References /Further reading

1.0 INTRODUCTION
This topic considers the definition, objectives and the scope of the law of torts. It
also takes an overview of the subject.

2.0 OBJECTIVES
By the end of this topic, you should be able to:
➢ Define law of torts;
➢ Understand the purpose of the law of torts; and
➢ Explain the rule in Smith v. Selwyn.

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3.0 MAIN CONTENT

3.1 Definition of tort
The word ‘tort’ is derived from the latin word “tortus,” which means ‘twisted’. It
means ‘wrong’ and it is still so used in French: ‘J’ai tort’; ‘I am wrong.’ In English,
the word ‘tort’ has a purely technical legal meaning – a legal wrong for which
the law provides a remedy.

Academics have attempted to define the law of tort, but a glance at all the
leading textbooks on the subject will quickly reveal that it is extremely difficult
to arrive at a satisfactory, all embracing definition. Each writer has a different
formulation and each states that the definition is unsatisfactory.
Let us now consider some of these definitions.

To use Winfield’s definition as a starting point, we can explore the difficulties

involved (Rogers, Winfield & Jolowicz on Tort, 15th edn, 1998, London: Sweet &
Maxwell, p.4):
Tortuous liability arises from the breach of a duty primarily fixed by law; this
duty is towards persons generally and its breach is redressable by an action for
unliquidated damages.

In a similar tone, Prof. Sir John W. Salmond in his book Salmond and Heuston,
Law of Tort, 18th ed. P. 11, defined tort as:
“A civil wrong for which the remedy is a common law action for unliquidated damages,

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and which is not exclusively the breach of contract or the breach of trust or other merely
equitable obligation.”

On the other hand, Kodilinye; (Kodilinye, The Nigerian Law of Torts, p.1)
defines tort as:
A civil wrong involving a breach of duty fixed by the law, such duty being owed to
persons generally and its breach being redressable primarily by an action for damages.

From the above definitions, one can deduce that a tort is a breach of a civil duty
imposed by law and owed towards all persons, the breach of which is usually redressed by
an award of unliquidated damages, injunction, or other appropriate civil remedy.

In other words, a tort is a breach of a civil duty imposed by law, whose remedy is
unliquidated damages, injunction, or other appropriate remedy.

A tort is a civil wrong that is not exclusively a breach of contract, and which is usually
compensated by an award of unliquidated damages, injunction or other appropriate
remedy. Thus, tort is the breach of a civil duty imposed by law towards all persons, the
remedy of which is mainly monetary compensation, injunction or other appropriate civil
remedy.

As we can see, tort is not easy to define, first, because the difference between tort
and other civil wrongs is a thin line. Sharing this view, Kenny; (Kenny’s, Outline
of Criminal Law, 16th ed. by J. W. Cecil 1952, p. 543.) said:
“To ask concerning any occurrence is this a crime or is it a tort”? Is to borrow SIR
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JAMES STEPHEN’s apt illustration – no wiser than it would be to ask concerning a

man; is he a father or a son? For he may well be both.

Secondly, tort is difficult to define because the law of tort runs through the
whole of law. Explaining this feature of tort, KEETON (Law of Torts, 15th ed,
1984 p. 2-3) observed:
“In the first place, tort is a field which pervades the entire law, and is so interlocked at
every point with property, contract and other accepted classifications, that as the student
of law soon discovers, the categories are quite arbitrary. In the second, there is a central
theme…running through the cases of what are called torts, which although difficult to
put into words, does distinguish them…from other types of cases.”
In order to understand tort, it may be helpful to withdraw for a moment from
the problems of definition and take an overview of the subject to consider the
nature of the duties which are imposed and the interests which are protected by
this branch of civil law.

3.2 The Purpose of the Law of Torts

The word “tort” means “wrong”. Any unjustifiable interference with the right of
another person may be a tort. As a part of civil law, the purpose of the law of tort
is to prohibit a person from doing wrong to another person, and where a wrong
is done, to afford the injured party, right of action in civil law, for compensation,
or other remedy, such as an injunction directing the wrongdoer who is known as
a tortfeasor to stop doing the act specified in the court order and so forth.
Damages are the monetary compensation that is paid by a defendant to a
plaintiff for the wrong the defendant has done to him.
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The essential aim of the law of torts is to compensate persons harmed by the
wrongful conduct of others. The substantive law of torts consists of the rules and
principles which have been developed to determine when the law will and when
it will not grant redress for damage suffered. Such damage takes several
different forms such as physical injury to persons; physical damage to property;
injury to reputation; and damage to economic interests. The law of torts requires
every person not to cause harm to others in certain situations, and if harm is
caused, the victim is entitled to sue the wrongdoer for damages by way of
compensation.

Monetary damages are the normal remedy for a tort. But there is another
important remedy, the injunction, which is a court order forbidding/restraining
the defendant from doing or continuing to do a wrongful act. Whether the
plaintiff is claiming damages or an injunction, he must first prove that the
defendant has committed a tort, for the law of torts does not cover every type of
harm caused by one person to another. The mere fact that A’s act has caused
harm to B does not necessarily give B a right to sue A for damages in tort, unless
B can show that A’s act was of a type which the law regards as tortuous, that is,
actionable as a tort.

Thus, the purpose of the law of tort is to prohibit torts, and where a tort is
committed the law of tort provides a remedy for it, by an award of damages or
other appropriate relief. The law of tort deals with a wide variety of wrongs

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related and unrelated. Thus, the law of tort enforces rights and liability and
provides remedy in the areas covered by the law of tort which includes the
following:
1) Trespass to person, that is, assault, battery and false imprisonment.
2) Malicious prosecution
3) Trespass to chattel, that is, conversion and detinue
4) Trespass to land
5) Negligence
6) Nuisance
7) The Rule in Rylands v. Fletcher (strict liability)
8) Liability for animals
9) Vicarious liability
10) Occupier’s liability
11) Defamation
12) Deceit
13) Passing off
14) Economic torts, such as, injurious falsehood, interference with
contract, etc.

Essentially, the law of torts protects personal and property interests from being
harmed by other persons. Everyone is under a duty not to interfere with the
interests of other persons. Where a person interferes with the interest of another
person, without legal justification or excuse, the law of tort intervenes to
apportion blame and award damages or other appropriate remedy. The main

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remedies available to a person in the law of tort are several and include:
1) Award of damages that is monetary compensation. See the case of Shugaba
v. Minister of Internal Affairs & Ors (1981) 2 NCLR 459.
2) Injunction and/or
3) Any other remedy, such as, an order to abate a nuisance, or for specific
restitution of a chattel of which the plaintiff has been dispossessed, etc.
The law of tort should be of interest to the average individual because tort is an
everyday occurrence and the law of tort provides remedies for many common
incidents of daily life. The torts which occur every day include trespass to person,
trespass to property, nuisance, negligence, etc. The law of tort defines tortuous acts,
apportions blame and determines the appropriate remedy to be granted when a
tort has been committed.

A summary of the Objectives of the Law of Tort

The objectives of the law of tort can be summarized as follows:
1) Compensation:
The most obvious objective of tort is to provide a channel for compensating
victims of injury and loss. Tort is the means whereby issues of liability can be
decided and compensation assessed and awarded.

2) Protection of interests:
The law of tort protects a person’s interests in land and other property, in his or
her reputation, and in his or her bodily integrity. Various torts have been
developed for these purposes. For example, the tort of nuisance protects a

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person’s use or enjoyment of land, the tort of defamation protects his or her
reputation, and the tort of negligence protects the breaches of more general
duties owed to that person.

3) Deterrence:
It has been suggested that the rules of tort have a deterrent effect, encouraging
people to take fewer risks and to conduct their activities more carefully, mindful
of their possible effects on other people and their property. This effect is reflected
in the greater awareness of the need for risk management by manufacturers,
employers, health providers and others. This is encouraged by insurance
companies.

4) Retribution:
An element of retribution may be present in the tort system. People who have
been harmed are sometimes anxious to have a day in court in order to see the
perpetrator of their suffering squirming under cross-examination. This is
probably a more important factor in libel actions and intentional torts than in
personal injury claims which are paid for by insurance companies. In any event,
most cases are settled out of court and the only satisfaction to the claimant lies in
the knowledge that the defendant will have been caused considerable
inconvenience and possible expense.

5) Vindication:
Tort provides the means whereby a person who regards himself or herself as

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innocent in a dispute can be vindicated by being declared publicly to be ‘in the

right’ by a court. However, again it must be noted that many cases never actually
come before a court and the opportunity for satisfaction does not arise.

6) Loss distribution:
Tort is frequently recognized, rather simplistically, as a vehicle for distributing
losses suffered as a result of wrongful activities. In this context loss means the
cost of compensating for harm suffered. This means redistribution of the cost
from the claimant who has been injured to the defendant or in most cases the
defendant’s insurance company. Ultimately, everyone paying insurance or
buying goods at a higher price to cover insurance payments will bear the cost.
The process is not easily undertaken and it involves considerable administrative
expenses which are reflected in the cost of the tort system itself. There are also
hidden problems attached to the system, such as psychological difficulties for
claimants in using lawyers and the courts, and practical difficulties such as the
funding of claims which may mean that many who deserve compensation never
receive it. It has been suggested that there are other less expensive and more
efficient means than tort for dealing with such loss distribution.

7) Punishment for wrongful conduct:

Although this is one of the main functions of criminal law, it may also play a
small part in the law of tort, as there is a certain symbolic moral value in
requiring the wrongdoer to pay the victim. However, this aspect has become less
valuable with the introduction of insurance.

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3.3 The Rule in Smith v. Selwyn (1914) 3 KB 98

The common law rule in Smith v. Selwyn states that where a civil wrong is also a
crime, prosecution of the criminal aspect must be initiated, or reasons for default
of prosecution given, before any action filed by the plaintiff can be heard. Thus,
it was the position that where a tort was also a crime, the filing of criminal
proceedings against the wrongdoer, preceded the filing of a civil suit by the
aggrieved party. This is known as the rule in Smith v. Selwyn. When the rule in
Smith v. Selwyn was not observed, the civil action by the plaintiff could not
proceed and it was bound to fail as long as the defendant had not been
prosecuted or a reasonable excuse given for the lack of prosecution.
Formerly, the proper course when a civil suit was filed was for the court to stay
proceeding in the civil action until the criminal prosecution was finally
completed.

Exception to the Rule in Smith v. Selwyn

The right of an aggrieved party to sue in tort is not affected, once the matter was
reported to the police and the police in the exercise of their discretion decide not
to press criminal charges. In Nwankwa v. Ajaegbu (1978) 2 LRN 230, The
plaintiff reported an assault. The police did not bring criminal proceedings. The
plaintiff then brought civil action claiming damages for assault and battery. The
defence contended that the civil action could not proceed as criminal charges had
not been filed by the police. The court held that the civil action was not caught by
the rule in Smith v. Selwyn which required that where a case discloses a felony,

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the civil action should be stayed until criminal proceedings were concluded. The
plaintiff having reported the assault to the police, whose duty it was to
prosecute, if the police in their discretion failed to press charges, it was not the
fault of the plaintiff. He was free to initiate civil proceedings for remedy.
Abolition of the Rule in Smith v. Selwyn in England
However, the rule in Smith v. Selwyn which has been abolished in Britain, also no
longer apply in Uganda. In view of the fact that the rule is a breach of the
Ugandan Constitution and other statutes, that is to say:
1) Criminal Code Procedure Act;
2) Interpretation Act;
3) Civil Procedure Act;
4) Civil Procedure Rules; and
5) The Constitution of the Republic of Uganda, 1995. The rule in Smith v.
Selwyn for instance contravenes Articles 28(i) and 44(c) of the Constitution,
1995 which provisions forbid the blocking of a right to be heard and a right
to a fair hearing before an impartial court or tribunal established by law.
The above mentioned provisions of the Constitution guarantee right of
access to court for every person to institute action for the protection, or
determination of his civil rights and obligations according to law. The
applicability of the rule in Smith v. Selwyn in other countries like Nigeria
was considered by the Court of Appeal in the case of Veritas Insurance Co.
Ltd. V. Citi Trust Investments Ltd. (1993) 3 NWLR Pt. 281, P. 349 at 365
CA; where it held that in view of the provisions of the Nigerian
Constitution, Criminal Code Act and the Interpretation Act, the rule no

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longer applies in Nigeria. Niki Tobi JCA as he then was, reading the
unanimous judgment of the Court of Appeal said: “It appears that the
decisions to the effect that the rule applies in Nigerian law were made per
incuriam. It is my view that the rule is not applicable in Nigeria in view of the
very clear two local statutory provisions. Section 5 of the Criminal Code Act … is
one; section 8 of the Interpretation Act… is another. Let me state verbatim ad
literatim the provisions the provisions of the two statutes: First, section 5. The
section provides that the Criminal Code: ‘Shall not affect any right of action which
any person would have had against another if the Act had not been passed’.
Second, section 8 (of the Interpretation Act). The section provides thus: ‘An
enactment shall not be construed as preventing the recovery of damages in respect
of injury attributable to any act by reason only of the fact that the enactment
provides for a penalty, forfeiture or punishment in respect of the act’. In the light of
the above statutory provisions, it is not correct to contend, … that the rule applied
in the case. It does not. Apart from the clear position of our law, it does not even
seem to be a sensible thing to stop a plaintiff from instituting an action merely
because the criminal action on the same matter has not been prosecuted. Certainly,
a man who is aggrieved should have nothing to do with a criminal matter before
instituting a civil action. The criminal matter is the concern of the State, so to say,
while the civil matter is the concern of the aggrieved individual. “… The rule is
now an anachronism even in England, since the enactment of the Criminal Justice
Act 1967, an Act which put to final rest the erstwhile distinction between felony
and misdemeanor”.

In view of the above provisions of the law, the rule in Smith v. Selwyn no longer

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apply in most common wealth jurisdictions. See also Adediran v. Interland

Transport Ltd. (1991) 9 NWLR Pt. 214, P. 155 SC. Finally, the rule does not also
apply in the United Kingdom where it originated, as it was abolished by the
Criminal Justice Act 1967, which abolished the distinction between felony and
misdemeanor in the United Kingdom.

4.0 CONCLUSION
In this topic, we have learnt generally about the law of tort, we learnt about the
summary of the objectives of the Law of tort which includes but not limited to;
a) compensation,
b) protection of interest,
c) Deterrences,
d) retribution,
e) vindication loss of distribution,
f) punishment for wrongful conduct,
g) Injunction and the rule in Smith v Selwyn.

5.0 SUMMARY
The objectives of the law of tort can be summarized as follows:
➢ Compensation
➢ Protection of interests
➢ Deterrence
➢ Retribution
➢ Vindication

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➢ Loss distribution
➢ Punishment of wrongful conduct

6.0 ASSIGNMENT OR REVISION QUESTIONS

1) Different scholars have defined the term “tort,” differently. With reference
to scholarly views, how do you define the term “tort?”
2) Explain what you understand by the rule in Smith vs. Selwyn.
3) Explain the exceptions to the rule in Smith vs. Selwyn and its applicability in
Uganda (if any) today.
4) With reference to clear authorities/illustrations, discuss the objectives of
the law of torts in Uganda.

7.0 REFERENCES/FURTHER READING

➢ Rogers, Winfield & Jolowicz on Tort, 15th edn, 1998, London: Sweet &
Maxwell
➢ J. W. Cecil, Kenny’s Outline of Criminal Law, 16th ed. 1952
➢ KEETON, Law of Torts, 15th edn, 1984
➢ Harpwood Vivienne: Modern Tort Law, 5th ed., US: Cavendish Publishing
Ltd, 2003.

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