Law of Torts Fundamentals

Overview: What is Tort?

Law of Torts is a body of rights, duties, obligations, and remedies that are applied in civil proceedings aimed at providing relief to persons who suffer harm from the wrongful act of others.
A tort arises when a person's duty towards others is not performed resulting in 'wrong' giving rise to a remedy for the claimant.
The wrongdoing is called as a tortious act, the individual who commits a tort is called a tortfeasor or a wrongdoer or defendant and the other person is called the injured party, claimant or plaintiff.
The claimant claims for remedy in unliquidated damages for his losses in a lawsuit arising out of the tortfeasor's actions or lack of action which was the proximate cause of the harm.
The main aim of the Law of Torts is to provide compensation to the victims.
Despite the fact that the Law of tort is one of the widest and most expansive areas of the law, yet, it is one which is less understood colloquially.

Meaning

The French word 'tort' has been derived from the Latin word 'tortum' which means 'to twist' i.e., that which is unlawful or crooked. It is equivalent to the English term 'wrong', and the Roman term 'delict'. It literally means 'breach of duty leading to damage'.
Tort law is a body of law that addresses, and provides remedies for, civil wrongs which are not arising out of any contractual obligations.
Tort law also recognises intentional torts and strict liability, which applies to defendants who are engaged in certain wrongful conducts.
Common law: unlawful violation of private right, not created by contract, and which gives rise to an action for damages.
An act or omission producing an injury to another, without any previous legal relation of which the said act or omission may be said to be a natural outgrowth or incident.
Private or civil wrong or injury, other than breach of contract.

Legal wrongs which do not constitute violation of contract:

Defamation
Fraud
Physical injuries
Violation of constitutional rights
Negligence
Interference with contractual relations
Violation of privacy
Malicious prosecution
Product liability
Strict liability for possession of animals
Abuse of right
Acts which violate good morals and customs

Definitions by learned jurists
- 'Tort' is defined by various jurists as under:

Dr. Winfield called Salmond's theory as the doctrine of pigeon hole that is certain specific heads of tort outside which there is no remedy. According to him, "Tortious liability arises from the breach of duty primarily fixed by law. This duty is towards person generally and its breach is redressible by an action for unliquidated damages". This theory consists not merely of those torts which have acquired specific names but also include wider principles that all unjustifiable harm are tortuous. This enables the courts to create new torts.

"A tort is an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party". – Fraser

Black's Law Dictionary defines a tort as a civil wrong for which a remedy may be obtained, usually in the form of damages.

"A tort is an act or omission not merely the breach of a duty arising out of personal relations, or undertaken by a contract which is related to harm suffered by a determinate person, giving rise to a civil remedy which is not an action of contract."- Pollock.

Kodilinye defined tort as; "a civil wrong involving a breach of duty fixed by the law, such duty being owed to persons generally and its breach being redressable primarily by an action for damages."

William Prosser was in the mainstream of mid-twentieth-century legal thought. According to him "tort law consisted of exercises in 'social engineering': it was 'concerned primarily with the adjustment of the conflicting interests of individuals to achieve a desirable social result." This approach was widely followed. In conceiving of tort law as a process in social engineering in which competing interests were weighed.

Salmond's Law of Torts (Sir John William Salmond)

According to Salmond "Just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted for an alleged offence or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability, and not for me to defend myself by proving that it is within some specific and established rule of justification or excuse."

According to him, there were only specific well-defined wrongs which can be termed as torts. He opposed generalization of torts into law of tort. He proposed that an act can be termed as a tort and a legal remedy is available for it only if the said act falls within the specified well-defined wrongs. Salmond further argues in favour of his theory that just as criminal law consists of a body of rules establishing specific offences, so too the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. For Salmond, the law must be called The Law of Torts rather that The Law of Tort.

In order to explain his theory; he compared the law of torts to the net set of pigeon holes; each hole consists of a labelled tort such as assault, battery, deceit, slander, negligence, etc., He further said that if a particular act does not fit in any of these pigeon holes, then he has committed 'no tort'. Hence, in Salmond's pigeon hole theory, there is no general principle of liability. Some argue that the idea of confining torts into a set of pigeon holes is untenable as the law of tort is continuously expanding, which is evident from the decisions of Donoghue v. Stevenson.

A jurist named Winfield provided theories that contradicted the viewpoint of Salmond.
Winfield 'Law of Tort' theory (Sir Percy Henry Winfield)

According to Winfield it is law of Tort. In his view the general principle of liability arises when a person inflict injury to another and where the legal injury is strictly against the recognized law of the land or if a duty is violated and resulted in the legal injury of another person, it is tort and the aggrieved person has a right of action for unliquidated damages. Winfield leaves space for the creation of new tort.

His theory has a wider approach towards tortious liability. New tort originated with changing times can be properly handled by Winfield's theory. As a result, the tort covered a wider range of injuries and the remedy on such injuries also got wider in scope. This theory argues that decisions such as Donoghue v. Stevenson show that the law of tort is steadily expanding and that the idea of its being cribbed, cabined, and confined in a set of pigeon holes is untenable.

"Tort can be described as the area of civil law which provides a remedy for a party who has suffered the breach of a protected interest". (Brennman 2017)
Nature of Torts

Every wrongful act, which is a civil wrong, may be considered as "Tort".
Tort is not a codified law, there are no enactments that define Tort and punishments applicable thereto.
Tort is based on common law principles and precedents followed in various judgements.
The Tort law focussed on awarding unliquidated damages as compensation determined by the court which are not pre-determined by the parties.
Tort is other than mere breach of contract and breach of trust.
There should be an act or omission on the part of the defendant.
Such act or omission has resulted in legal damage to the plaintiff.
Legal damage are further classified under two categories namely:
- Damnum sine injuria
- Injuria sine damno
Tort, being civil law, is less serious as compared to criminal law. Torts is damage caused to private individual as against crime which is against the public at large. Therefore, in torts only affected party can file suit, whereas in crime any one from the public may initiate action against the crime.

Purposes of Tort Law

General purpose: Protect different interests in the society, specifically to:
- Provide a peaceful means for adjusting the rights of parties who might otherwise take the law in their hands
- Deter wrongful conduct
- Encourage socially responsible behavior
- Restore the injured parties to their original condition, insofar as that law can do this, by compensating them for their injury.
- Reduce the risks and burden of living in the society and to allocate them among the members of the society.
The study of law of torts is therefore a study of the extent to which the law will shift from the person affected to the shoulder of him who caused the loss.
Although tort law is mainly concerned with providing compensation for personal injury and property damage caused by negligence, it also protects other interests such as reputation, personal freedom, enjoyment of property, and commercial interests.
The purposes of tort law are sought to be achieved in the pursuit of fundamental principles of justice and equity.
"Justice is a steady and unceasing disposition to render every man his due."
2 levels of justice:
- Social:
  - Distributive – address the allocation of social goods and bads • concern of our democratic institutions
  - Retributive – sanctions or penalties that are applied to those who engage in certain kinds of antisocial behavior
- Individual:
  - Compensatory – a person who wrongfully inflicts harm on another or that person's property must repay or repair the damage
  - Commutative – fairness of a private bargain or exchange
Equity is defined as justice according to natural law and right.
Justice outside legality: invoked in justifying the rule regarding mitigation of liability if the plaintiff was guilty of contributory negligence.
Torts have vindication as its primary function where damages are available for the wrongful interference with the interest protected by the tort.
Law of Tort concerns itself with civil wrongs for which a claimant may be able to get some kind of compensation called "damages".
Ex. If an individual had acted negligently while performing his job and causes some harm to you for no fault of yours, then, this is called "damage" for which you claim compensation called "damages". As such, the law of Tort seeks to impose certain liability for said action in order to rectify the wrongs caused to an extent possible.
This principle of compensation is commonly known as 'restitutio in integrum' means compensation should bring the claimant back to a position where he was but for the tortious action.
Ex. If an individual causes harm to another due to his negligent act leading the claimant unable to work for 3 weeks, compensation may be monetary payment which may be equal to 3 weeks wages so as to compensate for the monetary loss suffered by the other person.
Livingstone V Rawyards Coal Co (1880 5 app cas 25) "Compensation should take the form of the sum of money which will put the injured party in same position as he would have been in if he had not sustained the wrong for which he is now getting compensated.
This compensation is intended only to mitigate the loss suffered. This will not address cases where permanent damages are suffered by the person such as loss of limbs, legs or reputation in defamation cases. Yet, this is possibly the way to mitigate the losses suffered.

The Functions of Tort Law

Legal rights are vindicated by tort law in the basic sense that the law affirms the existence of the right through recognition of an action for breach, and providing for remedies such as damages and injunctions to redress violations.

Functions of Tort Law

Damage: In a tort case, the injured party can receive compensatory damages to compensate for all types of losses, including direct costs for medical care, property damage, or lost wages. It can also include indirect costs such as compensation for pain and suffering or inconvenience. When a tort wrongdoer was willfully reckless or the harm was particularly bad, the court may award punitive damages in addition to compensatory damages.
Compensation: Every victim of a tort suffers at least one legal injury. A legal injury is a violation of a legal right. The legal injury usually causes financial harm to the victim, such as the cost of repairing or replacing something or the cost of treatment for some physical injury. Justice requires that the victim be entitled to receive financial compensation from the person who committed the tort for the financial harm caused.
Vindication: The primary function of tort law is to compensate the injured party and to vindicate his or her rights. Tort law provides that the defendant must pay financial compensation to the plaintiff where he or she has committed a tort and thereby caused a recognisable form of harm.
Protection of Interest: The underlying principle of the law of tort is that every person has certain interests which are protected by law. Any act of omission or commission which causes damage to the legally protected interest of an individual shall be considered to be a tort.
Deterrence: Another function of tort law is that it deters wrongful behaviour. The tort system requires entities to internalise the costs of accidents, thereby creating deterrence.
Retributive Justice: Retributive justice requires the offender to receive a punishment proportional to the civil wrong committed. It is distinct from revenge and has inherent limits.
Compensation: The primary purpose of tort law is to compensate the injured party. The award of damages is designed to put the plaintiff back into the position they were in before the injury.
Corrective and Distributive Justice: Corrective justice restores balance between the wrongdoer and the victim, while distributive justice considers wider societal implications.
Loss Distribution: Tort law redistributes the cost of compensation from the injured party to the defendant, often through insurance.
Punishment of Wrongful Conduct: While primarily a function of criminal law, tort law also has a moral aspect in requiring the wrongdoer to compensate the victim.

Essential Elements of Torts

The defendant has done an act prohibited by law or omitted to perform an act legally bound as their duty.
Such wrongful act or omission has resulted in legal damage to the plaintiff.