General Condition of Liability under the Law of Tort.

____________________________________________

Here are two theories with regard to the basic principle of liability in the law of torts or tort. They are:

# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.

# Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.

The first theory was propounded by Professor Winfield. According to this, if I injure my neighbor, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying; my duty is to hurt nobody by word or deed. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.

The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbor as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort.

The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort. The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows 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 in untenable. However salmond argues in favor of his theory that 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 fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.

So tort is different from crime and breach of contract. In tort the category of responsibility is liability. Liability of Tort are arise the following way---

1.    Wrongful Act:

In case of tort there must be a wrongful act or omission on the part of defendant. An act which prima facie looks innocent may become tortious, if it invades the legal right of another person. Every act are liable for tort, in this respect motive is not essential. In Rogers v. Ranjendro Dutt, the court held that, the act complained of should, under the circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him in some legal right; merely that it will however directly, do him harm in his interest is not enough.

A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are very numerous. They may be divided again into public rights and private rights. To every right, corresponds a legal duty or obligation. This obligation consists in performing some act or refraining from performing an act.

Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.

Every wrongful act is not a tort. To constitute a tort :-

# There must be a wrongful act committed by a person;

# The wrongful act must be of such a nature as to give rise to a legal remedy and

# Such legal remedy must be in the form of an action for un-liquidated damages.

Tort Law- Distinctions Between Tort and Crime.

____________________________________________

Crime and tort both are wrongful act. But two have many distinctions. Some main distinctions are given below:

1. In tort general domain of law is civil law whereas crime is criminal.
2. Tort is an infringement or provision of private right or civil right belonging to an individual’s (injury against the individual) whereas crime is a breach of public rights and duties, which affect entire community.
3. In torts (civil case) the parties are known as plaintiff and defendant whereas in criminal case parties are known as complainant and accused.
4.  In tort the wrong doer has to compensate the injured party whereas in crime, wrong doer punished by the state in the interest of society.
5.  In tort the action is brought about by the injured party himself whereas in crime the proceedings are conducted in the name of state.
6.   In tort damages are paid for compensating the injured whereas I crime the accused in a proceeding is fine or punishment by the state.
7. The damages in tort are un-liquidated whereas in crime punishment or fine is liquidated.
8. The offence of tort is private interest only and victim is injured whereas the offence of crime to all society; public interest.
9.  In tort category of responsibility is liability whereas in crime responsibility is guilt.
10. In case of torts permissible appeals by the defendant or plaintiff whereas in crime appeals by the defendant only.
11.   In case of tort damages generally given by money whereas in crime it can be fine or punishment or both. 

Tort Law- Essential Feature or Requirements of Tort.

____________________________________________

The concept of tort is to redress a wrong done to a person or trespass for direct injuries and action. And remedy of tort given by the damages.

• Ø  Tort is a civil wrong, which different from Crime.
• Ø  Tort will different from breach of Contract and Quasi Contract.
• Ø  Tort is not against of morality.
• Ø  In case of tort, there must be wrongful act or omission, in this respect motive is not essential.
• Ø  The act or omission must be not supported by law, in this respect legal loss or legal damage is only considered.
• Ø  The actual loss or actual damage are not considered in case of tort.
• Ø  The main feature of tort(for plaintiff :p), it provide Un-liquidated damages.

Law of Tort- Definition of Tort.

____________________________________________

The term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’. The word tort is derived from the Latin word ‘tortum’ which means twisted or crooked or wrong and is in contrast to the word rectum which means straight. Everyone is expected to behave in a straightforward manner and when one deviates from this straight path into crooked ways he has committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a technical term of English law, tort has acquired a special meaning as a species of civil injury or wrong. It was introduced into the English law by the Norman jurists.

Tort now means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable. In spite of various attempts an entirely satisfactory definition of tort still awaits its master. In general terms, a tort may be defined as a civil wrong independent of contract for which the appropriate remedy is an action for un-liquidated damages. Some other definitions for tort are given below:

1. According to Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is repressible by an action for un-liquidated damages.
2. According to Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for un-liquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation.
3.  According to Freser- Tort is such type of wrong, which infringes the personal right.
4. According to Under Hill- Tort will arise by the breach of duty and the remedy of tort is damages.
5. Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related in one of the following ways to harm (including reference with an absolute right, whether there be measurable actual damage or not), suffered by a determinate person:-

a)      It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.

b)      It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting.

c)      It may be an act violation the absolute right (especially rights of possession or property), and treated as wrongful without regard to the actor’s intention or knowledge. This, as we have seen is an artificial extension of the general conceptions which are common to English and Roman law.

d)     It may be an act or omission causing harm which the person so acting or omitting to act did not intend to cause, but might and should with due diligence have foreseen and prevented.

e)      It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound absolutely or within limits, to avoid or prevent.

Law Study Help: Tort is a civil wrong arise by the wrong done or breach of duty and remedy of tort are given un-liquidated damages or compensation.

The Person Who Can’t File a Suit.

____________________________________________

The law of tort does not like the law of crime and contract. Torts recognize some personal incapacity as ground of general exemption. Sometime persons cannot be sued and cannot file a suit against some person.

o  The person who cannot file a suit:

1.      Alien Enemy:

Alien enemy is person, who is an enemy of nationality. Or a person residing or carrying business in a country at war with foreign country. In England or India this person cannot sue in his own right. No alien enemy residing in Bangladesh without such permission, or residing in a foreign country, shall sue in any of such Courts (Section- 83 of the CPC, 1908).

2.      Felons or Convicts:

A convict person found guilty of a crime and punished or sentenced by a court. In a case of Tort a convicts cannot file a suit. The property of a convict or felons may be attached/ forfeited in Bangladesh through court proceeding (Sections-126, 127, 169 of Penal Code).

3.      Insolvent or Bankruptcy:

A insolvent is defined as a person, who is deemed or unable to pay its debts. A insolvent person cannot file a suit for his property, though there is no problem to his suing for a wrong his person or reputation.

4.      Husband & Wife:

In eye of law husband and wife is one person. According to common law a wife cannot sue her husband for a tort, nor husband his wife. This exception was introduced by the Married Women’s Property Act, 1882.

5.      Child in the Mother’s Womb:

If a woman gave birth of a disable child, the child cannot sue for this. For example, a woman who is with child in her womb and injured by a railway accident as a result of which the child was born deformed. The court held that the child is not  entitled to get compensation as he was not in existence in time of accident and no question of ‘duty of care’ may arise as against mother.

6.      A minority:

A minority are unable to make file a suit, because minority is a bar to take a legal action. Only a majority can file a suit. 

Defamation: Defamatory Statement

Defamation

         Defamatory Statement: 

         The first requirement for a defamation action is that the statement or comment must be defamatory, and damaging the persons character, financial status, moral or reputation. Defamation is only when the statement or comment has tendency to injure a person’s reputation.

If a write or say of a man something that will disparage him in the eye of particular section of society but will not affect his reputation in the eye of the average right-thinking man is not actionable within the law of defamation. Tolley V. Fry (1930) 1 KB 467

Case example:

1 .        In Berkoff v Burchill [1996] 4 ALL ER 1008, a well-known journalist twice made remarks about Stephen Breakoff, an actor and director. She said that "film directors from Hitchcock to Breakoff are notoriously hideous-looking people" then in another review about Frankenstein she compared the monster's appearance to Breakoff, saying the monster was marginally better looking. Were the words 'hideously ugly' capable of being defamatory? The Court of Appeal said that words can be defamatory if they hold the claimant up to contempt, scorn or ridicule or tend to exclude him from society. The court emphasized that the statement was to be judged from the perspective of the reader and not according to the intention of the maker. In finding for the Claimant, the court said that the comments by the Defendant didn't just make the Claimant sound ugly but extremely repulsive and that this could be defamatory to a person who made part of his living as an actor. They said that most right-minded individuals wouldn't shun a person simply because of their looks, as opposed to if that person had a disease or was a criminal, but because of the profession of the Claimant the statement amounted to defamation. In a dissenting judgment Millet LJ said that words cannot be defamatory if the readers understood them to be a joke, even if it was a true joke.

2.      In Charleston v News Group Newspapers [1995] 2 AC 65, two popular characters from the TV show Neighbors were portrayed on the front cover of a newspaper naked except for black leather engaged in sexual intercourse. The title read "Strewth! What's Harold up to without Madge? Porn shocker for Neighbors stars" however the captions on the pictures made clear that the images were false. The image was taken from a sordid computer game which had computer-generated the images. The rest of the article condemned the game in a tone which can be contrasted with the prominence given to the image. The House of Lords accepted that the image must have deeply offensive but said that it was not defamatory since a publication has to be read as a whole. Even though the image and headline were libelous the remainder of the article had a neutralizing effect.

3.      Other examples of defamation

In the past there were several cases where accusing someone of being homosexual was defamation. However, as society has changed so too has the 'right-thinking man' and it is likely that nowadays such an accusation would not be defamatory. In respect of money, to say that someone is insolvent will be actionable as it will almost certainly stop people from trading with them, but to say simply that they owe money will not usually, as many people owe money quite frequently: Wolfenden v Giles (1982) 2 Br Col R 284.

4.     Sim v Stretch (1936) 52 TLR 669,

"The conventional phrase exposing the plaintiff to hatred, ridicule, contempt' is probably too narrow ... after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally ?" (emphasis added)

General Principles Of Liability

There are two theories with regard to the basic principle of liability in the law of torts or tort. They are:

# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.

 

# Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.

 

The first theory was propounded by Professor Winfield. According to this, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying, my duty is to hurt nobody by word or deed. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.

The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbour as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort. The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort.
The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows 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 in untenable. However salmond argues in favour of his theory that 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 fro an alleged offence or sued fro an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.

Distinction between crime and tort.

  Crime and Tort both are wrongful act. but two have many distinction.some main distinction given by  Peter Suber
    Crimes v. Torts

This table summarizes some of the basic differences between crimes and torts, or between criminal law and tort law. We'll elaborate on most of these differences in class.

	Crimes	Torts
immediate purpose	punishment of criminal	compensation of victim
balance of defendant's wrong and victim's injury	emphasis on df's moral wrong, not victim's injury	emphasis on victim's injury, not df's moral wrong
theory of offense	offense to all society; public interest	only victim injured; private interest only
initiating party	the state, "the people", represented by prosecutor	the victim, plaintiff
verb/noun	try/trial, or prosecute/prosecution	sue/suit
defendant's right to a jury trial	yes (6th Amendment)	only sometimes (7th Amendment)
defendant's right to counsel	yes	no
deadline on action	statute of limitations	laches; equitable estoppel; sometimes a statute of limitations
category of responsibility	guilt	liability
standard of proof	"beyond a reasonable doubt"	"by a preponderance of the evidence"
judge may direct a verdict of guilty	no	yes
fate of convicted defendant	suffers punishment (fine, imprisonment, death)	pays compensatory damages, sometimes punitive damages; sometimes is enjoined
fate of victim	ignored	compensated
permissible appeals	by defendant only (state barred by double jeopardy)	by defendant or plaintiff
defendant's testimony	may not be compelled (privilege against self-incrimination)	may be compelled
affirmative defenses	excuse, justification	immunity, consent, privilege (and others)
effect of victim consent, forgiveness, condonation	consent rarely a defense	consent always a defense
general domain of law	criminal	civil
form of law	statute (mostly)	case law, common law (mostly)
primary lawmaker	legislature	court
accountability of lawmaker	elected	usually appointed, sometimes for life
role of precedent	only for interpreting statute	for substance
availability, prior notice, promulgation of law	always written; clarity and prior notice important	unwritten except as cases after the fact
retroactivity of law	no ex post facto; usually no "common law crimes"	may be ex post facto

This list of differences should not obscure the similarities between criminal law and tort law. For example, both kinds of law:

• must be consistent with the state and federal constitutions
• are applied and interpreted by courts
• use juries for questions of fact
• have similar appeal routes for convicted defendants
• have procedural and substantive dimensions
• may apply to the very same act (both kinds of legal action may proceed simultaneously)
• may use the same legal concepts (battery is both a crime and tort; punitive damages resemble criminal fines; contempt of court can be criminal or civil).

---

Why Do We Need Tort Law? What Purposes Does It Serve?

Why Do We Need Tort Law? What Purposes Does It Serve, And Could Those Purposes Be Equally Or Better Served In Other Ways?

‘Tort Law' is the law of wrongdoing. The basis of tort law is to enable a person who has been wronged to ask for compensation. This concept has been avid since pre-industrialisation with the invention of the ‘writs'. Though evolved into ‘Tort Law', it cannot be forgotten that the aim in which the ‘writ' was instated in the first place - to enforce the idea of an individual's obligation to another. The surfacing of the concept of negligence here is key to understanding the need for tort law. Negligence, an act which falls short of what a reasonable person would do to protect another in foreseeable risk of harm, has been in many lengths criticized due to its ambiguity in definition. Nonetheless, the inherent concept still remains - it is what we as individuals owe each other.

Tort law has many active functions in society, as is any other form of law. But it should be emphasised that tort law mainly deals with correcting a civil wrong. Tort law is built upon a system where no one should be given lee way to injuring anyone; but then again so is criminal law. A distinguishable barrier however is existent in the form of which the injured is to be compensated for another's act of wrong doing. The justifications between tort and crime are hardly direct but a lucid contrast between the two is the form in which it compensates individuals, i.e. Payable damages to those that have been wronged as opposed to criminal offences where, instead, an individual is punished. Tort law, to put simply, is needed to remind us that we need to care not just of ourselves but of others as our actions may directly or indirectly affect them whether it is now or in the future.

The existence of tort law serves, in my opinion, two main discretions in society - public and private responsibility. Tort law is advantageous to the public because the enforcement of policies and limits to the general society imposes a perception of which people are conveniently less selfish as they always have to think in the way of a ‘reasonable person'. This is later enveloped in the household as the morality of society is incurred into nurturing and influencing those at home. The consequence of being labeled is also what is condoned by individuals - a form of conventional fear that is stitched upon society - especially in our generation of taboo and encompassing media.

Why do we need Tort Law? What purposes does it serve, and could those purposes be equally or better served in?

(Why do we need Tort law)  Tort law is simply civil law as opposed to criminal law which is always enforced by a government entity. Without tort law there would be no system for redress of wrongs committed by one person against another or others which fell outside the realm of criminal sanctions specified by code or statutes. Tort law in our system has evolved from the old English common law system carried to our country by settlers originating from England. Court of Equity and arbitration are two forms of potential resolution of torts committed against a party or parties that are separate from the actual filing and prosecution of a lawsuit due to actions of alleged tort fears. Classic examples of instances handled under tort law would be automobile accidents or a personal injury caused by someone's negligence. Hope that helps a little.