Project Management  ·  Level 6
Principles Of Commercial Law
Chapter 3: Apply law of Tort
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⚑ What you will be able to do

By the end of this chapter, you will be able to:

  • clearly explain the nature of tortious liability according to the law of tort
  • confidently differentiate between tort, crime, and breach of contract based on the law of tort
  • accurately determine who has the capacity to sue or be sued under the law of tort
  • identify various types of torts and understand their characteristics
  • recognize and explain general defenses in tort according to the law

Mastering these skills will help you handle real-life legal issues in the workplace with confidence and professionalism.

Commercial enterprises and professionals operating in Kenya must navigate a complex legal environment that includes the law of tort. This chapter provides a comprehensive understanding of tortious liability and its distinction from crimes and breaches of contract, which is essential for managing legal risks in diverse sectors such as healthcare, education, banking, hospitality, and agriculture. Mastery of tort law principles enables professionals to anticipate potential liabilities, protect organizational interests, and maintain ethical standards in service delivery and business operations.

3.1 Nature of Tortious Liability

Understanding the nature of tortious liability is crucial for professionals who may face claims arising from civil wrongs in their work environments. Tort law governs situations where one party’s actions or omissions cause harm or loss to another, outside the scope of contractual agreements. In Kenya, this body of law helps uphold accountability and fairness in interactions across various sectors including county governments, retail businesses, and cooperative societies.

3.1.1 Concept and Scope of Tortious Liability

Tortious liability arises when a person or entity commits a civil wrong that results in injury or damage to another, attracting legal responsibility. Unlike contractual liability, tort does not depend on an agreement between parties but on the breach of a duty imposed by law. This liability covers a wide range of acts including negligence, nuisance, defamation, and trespass.

  • Civil wrong: Acts or omissions causing harm to another person’s rights or property, warranting compensation.
  • Duty of care: A legal obligation to avoid acts or omissions likely to cause harm, central to negligence claims.
  • Breach of duty: Failure to meet the required standard of care, leading to liability.
  • Causation: Establishing that the breach directly caused the injury or loss.
  • Damages: Compensation awarded for actual harm suffered, which may include physical injury, financial loss, or reputational damage.

In a county hospital setting, for example, a nurse who negligently administers medication causing patient harm can be held liable under tort law despite the absence of a contract with the patient.

3.1.2 Legal Foundations and Principles Underlying Tortious Liability

The legal foundations of tortious liability in Kenya are influenced by common law principles supplemented by statutes such as the Law of Tort Act. The principles ensure that liability is fairly assigned and that victims receive remedy without resorting to criminal prosecution.

  • Fault principle: Liability generally requires proof of fault such as negligence or intentional harm.
  • Strict liability: Certain activities impose liability without fault, especially where dangerous operations cause harm.
  • Vicarious liability: Employers may be held liable for torts committed by employees during employment.
  • Remoteness of damage: Only damages reasonably foreseeable from the wrongful act are compensable.
  • Volenti non fit injuria: No liability arises if the injured party consented to the risk.

3.1.3 Common Types of Torts and Their Application in Kenyan Workplaces

Torts encountered in professional settings vary widely, affecting liability management and risk mitigation strategies. Recognizing these types is essential for organizations to implement preventive measures.

  • Negligence: Failure to exercise reasonable care leading to harm, common in healthcare and service industries.
  • Nuisance: Interference with the use or enjoyment of land, relevant to agricultural farms and manufacturing plants.
  • Defamation: Harm to reputation through false statements, significant in the media and educational institutions.
  • Trespass: Unauthorized entry onto property, pertinent to retail outlets and county government offices.
  • Strict liability torts: Liability for inherently hazardous activities, applicable to waste disposal managed by environmental agencies like NEMA.

A SACCO may face defamation claims if false information about its financial stability is circulated, damaging its reputation.

3.1.4 Consequences and Remedies of Tortious Liability

The consequences of tortious liability impact both individuals and organizations financially and reputationally. Remedies aim to restore the injured party and deter future wrongs.

  • Compensatory damages: Monetary awards to cover actual losses including medical expenses and lost income.
  • Punitive damages: Additional sums awarded to punish particularly egregious conduct.
  • Injunctions: Court orders to prevent ongoing or future harm.
  • Restitution: Returning the injured party to their original position before the tort.
  • Apology and retraction: Non-monetary remedies especially in defamation cases.

Practice Questions

  1. Define tortious liability and explain its scope in Kenyan commercial contexts. (10 marks)
  2. Discuss the key legal principles underpinning tortious liability with examples from Kenyan workplaces. (15 marks)
  3. Identify and explain five common types of torts that may arise in professional settings. (15 marks)
  4. Describe the main remedies available to a plaintiff in a tort claim and their significance. (10 marks)
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🔒3.2 Tort, Crime vs Breach of Contract

Professionals must differentiate between torts, crimes, and breaches of contract as each has distinct legal implications and remedies. Misunderstanding these differences can lead to inappropriate responses to legal issues in sectors such as education, banking,…

🔒3.3 Capacity to Sue and Be Sued by the Law of Tort

In Kenyan commercial and professional environments, understanding who has the legal capacity to sue or be sued under tort law is essential. Capacity determines whether an individual or entity can initiate or defend a tort claim, impacting accountability and co…

🔒3.4 Types of Tort

Tort law in Kenya addresses various wrongful acts that cause harm or loss to others, requiring the wrongdoer to compensate the injured party. Understanding the types of torts is crucial for professionals across sectors to identify liabilities and enforce right…

🔒3.5 General Defences in Tort

In the Kenyan professional environment, understanding the general defences available in tort law is crucial for institutions and individuals to mitigate liability risks. Whether a healthcare provider at a county referral hospital or a manager at a SACCO, knowi…

🔒3.6 Elements of Tort

Tort law in Kenya provides remedies for civil wrongs that cause harm or loss. To establish a claim in tort, certain essential elements must be proven. These elements form the foundation of tortious liability and guide courts in determining whether a defendant…

Chapter Summary

This chapter examined the nature of tortious liability, explaining how it arises from civil wrongs that cause harm or loss to another party, distinct from contractual or criminal obligations. It clarified the differences between tort, crime, and breach of contract, emphasizing the unique purposes and remedies associated with each. The discussion on capacity to sue or be sued under the law of tort highlighted the legal standing required for parties to initiate or defend claims. Various types of torts were explored, including negligence, defamation, nuisance, and trespass, each with specific characteristics and applications. The chapter also addressed general defences available in tort cases, illustrating how defendants may avoid liability under certain conditions. Finally, it outlined the essential elements of tort, such as duty of care, breach, causation, and damage, which must be established for a successful claim. These foundational principles provide a comprehensive understanding of how tort law operates within commercial and civil contexts.

Self-Assessment

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A. Written Assessment

  1. Which of the following best describes tortious liability? (2 marks)
    a) Liability arising from breach of contract
    b) Liability imposed by law for civil wrongs causing harm to others
    c) Liability arising from criminal offences
    d) Liability related to government regulations

  2. Explain two key differences between tort and breach of contract. (4 marks)

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Chapter Examination Questions

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SECTION A (40 Marks) - Answer ALL Questions

  1. Explain the nature of tortious liability and how it differs from contractual liability, using an example involving a county hospital. (4 marks)
  2. Distinguish between tort, crime, and breach of contract with reference to the legal consequences in a retail business setting. (4 marks)
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Am I competent?

At the start of this chapter we promised you would be able to:

  • clearly explain the nature of tortious liability according to the law of tort
  • confidently differentiate between tort, crime, and breach of contract based on the law of tort
  • accurately determine who has the capacity to sue or be sued under the law of tort
  • identify various types of torts and understand their characteristics
  • recognize and explain general defenses in tort according to the law

Tick each one you can genuinely do.

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You're competent when you can confidently do 50% or more of what this chapter promised.

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