TOPIC: WHAT IS TORT, AND TORTIOUS LIABILITY ?

From a legal standpoint, a tort is a private or civil wrong or injury (other than a breach of
contract) for which a court of law may provide a remedy through a lawsuit for damages
(compensation). For example, when a person violates his/her duty to others created under
general (or statutory) law, a tort has been committed. Tort law relies heavily on the
common law, the legal opinions of the Courts, general trends in the community, and legal
scholarship to guide its relevance in today’s world.

Simply put, the Encyclopedia Britannica states, “ a tort is an instance of unlawful conduct
that either is dangerous to life and limb, causes mental anguish, damages personal
reputations, or violates certain rights such as property rights or rights of privacy. The
concept encompasses only those civil wrongs independent of contracts.”

The eminent American legal mind, Professor Prosser states, “broadly speaking, a tort is a
civil wrong, other than a breach of contract, for which the court will provide a remedy in
the form of an action for damages.” Examples of tort include:

a) assault and battery

b) false imprisonment
c) trespass
d) negligence
e) interference with contract
f) interference with economic advantage.

The law of torts attempts to provide a means of redress for damage or injury suffered. For
instance, in the event a bull charges through a fence and wreaks havoc in a neighbouring
farmyard, the owner of the bull, who has a strict statutory obligation to ensure that such
an escape does not occur, is liable by the law of torts to compensate the neighbouring
farmer who has suffered damages. The form of the compensation is usually monetary
(damages), assessed according to the loss incurred as a result of the tortuous act or failure
to act. The purpose of the law of torts is to delimit, in the event of damage or injury
resulting from an act or omission, a right to compensation and the extent of the
compensation that maybe claimed.

Even though an act or omission may be deemed not to be tortuous, this does not
necessarily mean that a wronged party cannot seek redress in the form of compensation.
A breach of contract, for example, will entitle the wronged party to receive damages, but
the form of action in such a case is in the law of contract, not tort. It is possible, of
course, for an act or omission to be both a tort and a breach of contract. Because of the
overlap in such areas, the strict definition of tort has been traditionally been a subject of
keen academic debate.
For the purposes of Industrial Relations, there is a clear correlation between elements of
tort as it affects the workplace. Indeed, this relationship between the law of tort and the
workplace can be traced back to English common law and the principles of labour law
and legislation.

It is quite clear that the principles of tort law can be found in:

a) Principles of Civil Conspiracy Doctrine – where criminal liability was removed from
Trade Unions who were engaged in strikes and picketing. However, Trade Unions were
still liable as an entity for tort, that is, from a civil law perspective.

b) Principle of Contractual Interference – Here, labour combinations’ activities now

became related to tortious interference with contract or work relationships. It should be
noted that the right to be free from interference arises in contract, while the remedy is
pursued in tort. This basically means that the theory that interference with the contract
relations was an actionable tort. Put another way, the doctrine of illegal interference with
contractual employment obligations by trade unions can be considered a tortuous action.

However, in Trinidad and Tobago, the issue of tort is dealt with in terms of the industrial
relations between employers and trade unions and their membership. This is set out in the
TRADE DISPUTES AND PROTECTION OF PROPERTY ACT OF 1943. This act
deals significantly with removing tortious liability on the part of Trade Unions in its
Industrial Relations practices as its relates to the employer and the workplace on issues
such as

1) Picketting
2) Removal of liability for interfering with another person’s business
3) Prohibition of actions of tort against trade unions

The previous information, to some extent dealt, with tortious liability as it relates to
Trade Unions. However, present literature demonstrates that employers also must accept
tortious liability for the actions of their employees.

Indeed, if an employee commits a wrongful (tortious) act in the course of his duty which
causes injury or damage to a third person, the employee will, of course, be personally
liable. However, the employer may be vicariously liable to compensate that third party.
Two reasons are usually adduced for this principle:

1) The first is that the employer, having initiated or created the situation where the
employee has been in a position to cause the harm, should properly bear the loss;
2) The second is the more practical reason that the employee will usually be unable to
meet any substantial claim for damages, whereas the employer will normally have the
financial resources to do so, or, at least, will be insured against such contingencies.
As can be noted, although the law of tort is considered a civil wrongdoing, it has its role
to play in the workplace as it relates to the history and trials of the labour movement
where legislation was passed making it civil or criminal liable for damages caused by
striking or picketing against employers. Further, employers can also be liable to be sued
for civil damages if a worker in its employ commits an act which injures a third party.