Law of Tort: Everything You Need To Know


meaning of law of tort, meaning of tort, tort theories

The law of tort Definition

The law of tort is a branch of civil law that governs 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.

What is a tort?

the tort may simply define as conduct that is not straight or lawful, but twisted, crooked, or unlawful. A person who commits a tort is called tort-feasor or ‘wrong-doer’

A tort is a French word that is synonymous with wrong in English. It originates from the Latin word ‘tortum’ which means ‘to twist’. It implies conduct that is twisted or tortious.

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

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

Despite that complexity, there are some authors who 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

common tortious acts

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

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.

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Law of tort theories [Theories of Salmond and Winfield as to tortuous Liability]

Is it The Law of Tort or the Law of Torts?

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 if there are certain specific wrongs which are torts, or any wrongful act can be tort?

Winfield Theory of Tort

According to Dr. Winfield’s theory of tort, there is the law of tort. That means any wrongful act can be a tort. Winfield’s theory entails that all injuries done to another person are torts unless the law stated otherwise. Winfield theory of tort is also known as ‘broader theory’

According to that view, if I injure my neighbor, he can sue me in tort regardless of 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 of Tort [the pigeon-Hole Theory]

According to Salmond’s theory of tort, 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 Salmond’s theory of tort, 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.

Salmond’s theory of tort is also known as pigeon-hole theory.

If there is no pigeonhole in which the plaintiff case could fit, the defendant had committed no tort.

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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

Difference between Winfield theory of tort and Salmond theory of tort

  1. The Winfield theory is also known as a broader theory while Salmond theory is also known as pigeon-hole theory
  2. Winfield says that all injuries are tort unless there is justification recognized by law. (law of tort) while Salmond says that Only certain specific injuries are torts (law of torts)
  3. Winfield states that There is a remedy for all injuries while Salmond states that There is no remedy for the damages suffered outside the specific torts
  4. Winfield says that Courts can create new tort Salmond says that only Courts cannot create a new tort
  5. Winfield says that there is a general principle of liability while Salmond says that there is no general principle of liability

Prof. Williams has summed up the controversy between those theories by substantiating that`

  1. Winfield’s school has shown that the rules of tortuous liability are very wide has shown that
  2. Salmond’s theory has shown that some rules of the absence of liability are also very wide
  3. Neither school has 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.

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

Difference between tort and crime

A tort is an infringement of private rights while Crime is an infringement of public rights

In tort, a Case is brought by the injured person himself or his attorney while In crime, the proceeding is initiated and handled by state/republic

In tort, the intention is of secondary importance while In crime intention is of primary intentions

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In tort, the wrongdoer has to pay damages to the injured person while in crime the offender is sentenced to fine or imprisonment

In tort, the compensation goes to an injured person while in crime the fine goes to the government

The law of tort is flexible while all the crimes must be defined and codified to be accepted.

The purpose of tort law is to provide compensation to the injured person while the purpose of criminal law is to protect society by preventing and deterring the commission of offenses

The burden of proof lies on injured the person while the burden of proof lies on the state

A tort is of recent origin while Crime is from ancient times

Difference between Tort and Breach Of Contract

  1. In Tort, the duty is fixed by law while in Contract, the duties and responsibilities are fixed by parties themselves
  2. In Tort, Duty is generally towards every member of the community while in Contract Duty is specific to parties to contract
  3. A tort is committed without consent while Contract formation depends on the consent of the parties
  4. In Tort, Motive is relevant while in breach of contract motive is irrelevant
  5. A tort is flexible while 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 laws 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

Isack Kimaro

Editor-in-chief and founder of sherianajamii.com. Holder of Bachelor of Laws (LL.B) from Mzumbe University and Post Graduate Diploma in Legal Practice from the Law school of Tanzania. Lawyer by profession and blogger by passion.

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