Introduction, Aims of Tort Law, and Tort Distinguished from Crime and Contract
This opening domain is where examiners test classification: can you say what tort law is for, and can you put a problem into the correct cause of action before you analyse its elements? Most lost marks here come from candidates who start writing about negligence in answer to a question about the nature of tortious liability.
The aims of tort law
- Compensation: to put the claimant, so far as money can, in the position he would have occupied but for the wrong.
- Deterrence and standard-setting: the reasonable person standard, and damages, signal the level of care expected.
- Fault and corrective justice: liability normally follows culpability, which is why strict liability (Rylands v Fletcher, defamation) is treated as exceptional and explained separately.
- Loss distribution: in practice insurance and enterprise liability spread the cost of accidents; this explains why employers and occupiers are attractive defendants.
- Vindication of rights: trespass and defamation protect dignitary and possessory interests even where loss is small or unprovable.
Tort and crime
A single act may be both a tort and a crime, but the actions are different in parties, purpose and proof. A crime is prosecuted by the State to punish; a tort is litigated by the victim to compensate. The criminal standard is proof beyond reasonable doubt; the civil standard is the balance of probabilities. A conviction is admissible and highly persuasive in a later civil trial, but it is not conclusive, and an acquittal does not bar a civil claim because the standards differ.
Tort and contract
Contractual duties are voluntarily assumed and confined by privity; tortious duties are imposed by law and, since Donoghue v Stevenson, can be owed to strangers. Contract damages protect the expectation interest; tort damages restore the pre-tort position. Some professionals owe concurrent duties in contract and tort, so a client may sue either way.
Worked example
A factory worker loses a hand in an unguarded press. The State prosecutes the company under factories legislation. The worker may still sue in negligence, and does not need to wait for the prosecution: duty (employer and occupier), breach (guarding was cheap and the harm severe), causation (but for the missing guard), remoteness (amputation is foreseeable), then damages, reduced if he contributed. Note the claim lies against the employer personally and cannot be delegated.
Traps that cost marks
Writing a criminal-law answer; treating a conviction as conclusive proof of negligence; forgetting that Ghanaian tort is common law supplemented by statute, notably the Civil Liability Act 1961 (Act 176) and the Defamation Act 1961 (Act 220); and ignoring insurance and policy when asked what tort law is for.