The law of tort is a very important branch of civil law. It covers every act or omission, other than a breach of contract, which gives rise to injury or harm to another and amounts to a civil wrong.

Here I will cover

  • Definition of law of tort
  • Purpose of the law of tort
  • Common tortious acts
  • Tort theories
  • Elements of tort
  • Tort as distinguished from other branch of laws


The law of tort Definition

What is the law of tort? A tort is a French word that is synonymous to wrong in English. 

It originates from the Latin word ‘tortum’ which means ‘to twist’. It implies conduct that is twisted or tortious.

Therefore, tort may simply define as conduct which is not straight or lawful, but twisted, crooked, or unlawful.

A person who commits a tort is called tort-feasor or ‘wrong-doer’

It is worth noting that, it is very difficult to give a precise definition of tort because

  • the law of tort comprises a large number wrongs of different kinds
  • there are a lot of circumstance through which the tortious liability may arise
  • the law of tort is still growing. New torts are still formulated



Despite that complex, there are some authors tried to give the definition of a tort,

The Chambers Dictionary defines the tort as any wrong or injury not arising out of contract for which there is a remedy by compensation or damages

Example of the common tortuous act includes, negligence, assault and buttery, slip and fall, car accidents, and other forms of personal injury



Tort, law Personal injury law

Purpose of the law of tort

The main purpose of the law of tort is to provide compensation to a person whose rights have been violated by the wrongful act of another person.

This law was not developed just to punish the wrongdoer but to compensate for the injury/damage suffered by a person as a result of the conduct of another.

Is it The Law of Tort or Law of Torts? [Theories of Salmond and Winfield as to tortuous Liability]

Salmond once raised a question that received a number of responses. 

The question was

Does the law of torts consists of general principles that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse
Or

Does it consist of a number of specific rules prohibiting certain kinds of harmful activity and leaving the entire residue outside the sphere of legal responsibility?

In short, Salmond was asking

‘is it the law of tort or law of torts? He was just eager to understand is there a certain specific wrongs which are torts, or any wrongful act can be tort?

Winfield Theory

According to Dr. Winfield and PAllock, there is the law of tort.

That means any wrongful act can be a tort. Their theory entails that all injuries done to another person are torts unless the law stated otherwise. 

It is also known as ‘broader theory’

According to that view, if I injure my neighbor, he can sue me in tort regardless the wrong have a specific name like assault, defamation, etc. or it has no specific name at all, and I shall be liable if I cannot prove lawful justification.

Salmond theory [the pigeon-Hole Theory]

According to Salmond, there is a law of torts.

That means in order for a wrong to be tort there must be a specific principle to that effect. According to this theory, the law of torts consists only of a number of specific wrongs beyond which the tortuous liability cannot rise.

In simple words, according to Salmond you cannot sue or be sued for unknown tort/wrong.

According to him, there is no general principle of liability, and if the plaintiff can place his wrong in any one of the pigeon-holes containing a labeled tort, he will succeed.

This theory is also known as pigeon-hole theory. If there is no pigeon-hole in which the plaintiff case could fit, the defendant had committed no tort.

He further argued that “Just like the criminal law consists of a body of rules establishing specific offenses, so the law of torts consists of a body of rules establishing specific injuries…”

Other supporters of this theory are Mickey Dias and B.S Markesins

Different between Winfield and Salmond theories




Winfield
Salmond
All injuries are tort unless there is justification recognized by law. (law of tort)
Only certain specific injuries are torts (law of torts)
There is a remedy for all injuries
There is no remedy for the damages suffered outside the  specific torts
Courts can create a new tort
Courts cannot create a new tort
There is a general principle of liability
There is no general principle of liability
It is also known as the broader theory
This is also known as pigeon-hole theory
`
Prof. Williams has summed up the controversy between those theories by substantiating that
  • The Winfield’s school has shown that the rules of tortuous liability are very wide has shown that
  • Salmond’s theory has shown that some rules of the absence of liability are also very wide
  • Neither schools have shown that there is any general rule, whether of liability or non-liability to cover new cases that have not yet received court attention.



Elements/Factors to Constitute a Tort

The following elements must be present for the wrong to be termed as a tort.

  • There must be a breach of duty or wrongful act or omission on the part of a person
  • That wrongful act or omission must result in legal damage
  • The wrongful act must give rise to the legal remedy in monetary form


Tort as distinguished from other branch of laws

Difference between tort and crime

Tort
Crime
Tort is an infringement of private rights
Crime is an infringement of public rights
In tort, The case is brought by the injured person himself or his attorney
In crime, the proceeding is initiated and handled by state/republic
In tort the intention is of secondary importance
In crime, the intention is of primary intentions
In tort the wrongdoer has to pay damages to the injured person
In crime the offender is sentenced to fine or imprisonment
In tort the compensation goes to the injured person
In crime the fine goes to the government
The law of tort is flexible
All crime must be defined and codified to be accepted.
The purpose of tort law  is to provide compensation to the injured person
The purpose of criminal law  is to protect the society by preventing and deterring the commission of offenses
Burden of proof is lies on the injured person
The burden of proof is lies on state
Tort is of recent origin
Crime is from ancient times

 Difference between Tort and Breach Of Contract

Tort
Contract/Breach of contract
The duty is fixed by law
The duties and responsibilities are fixed by parties themselves
Duty is generally  towards every member of community
Duty is specific to parties to contract
Tort is committed without consent
Contract the formation depends on the consent of the parties
Motive is relevant
In breach of contract motive is irrelevant
Tort is flexible
Law relating to the contract has been codified


Conclusion
My task was to share with you the basic concept of tort law. The bottom line is

  • A tort is any unlawful act or omission which gives injury to another person
  • The purpose of tort law is to provide compensation to a person whose rights have been violated by the wrongful act of another person.
  • There is two theory regarding the law of tort. One entails that there is a law of tort while another entails that there are law of torts.
  • The common torts act includes negligence, assault, battery, slip and fall, car accidents and other forms of personal injuries
  • The major elements of the tort are unlawful act, damage, and remedy
  • The law of tort is quite different from crime and breach of contract


Reference

Myneni R.S (2009) Law of Torts And Consumer Protections, Asia Law House

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