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 be defined as conduct that is not straight or lawful, but twisted, crooked, or unlawful. A person who commits a tort is called a tort-feasor or "wrong-doer".
A tort is a French word synonymous with "wrong" in English. It originates from the Latin word "tortum" meaning "to twist." It implies conduct that is twisted or tortious. Notably, it is difficult to give a precise definition of tort because:
- The law of tort comprises a large number of wrongs of different kinds.
- There are many circumstances in which tortious liability may arise.
- The law of tort is evolving; new torts are still being formulated.
Common Tortious Acts
Examples of common tortious acts include negligence, assault and battery, slip and fall incidents, 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.
Law of Tort Theories: Theories of Salmond and Winfield
Is it The Law of Tort or The Law of Torts?
Salmond raised a question that led to significant discussion: Does the law of torts consist of general principles making it wrongful to harm others without justification, or is it a series of specific rules that prohibit certain activities? In other words, is it the law of tort or the law of torts?
Winfield Theory of Tort
According to Dr. Winfield, any wrongful act can be a tort unless the law states otherwise, implying a broad interpretation. If someone injures their neighbor, they can be sued in tort, even if the act has no specific name, as long as there is no lawful justification.
Salmond Theory of Tort (The Pigeon-Hole Theory)
Salmond argued that tort liability applies only to specific wrongs. If a wrongful act doesn’t fit into one of the defined categories, it isn’t a tort. This view, known as the "pigeon-hole theory," states there is no general principle of liability.
Difference between Winfield and Salmond Theories
Winfield sees tort law broadly, encompassing all injuries unless lawfully justified, whereas Salmond sees it as limited to specific wrongs. Winfield’s view allows for new torts; Salmond’s does not.
Elements to Constitute a Tort
- A wrongful act or omission by a person.
- Resulting in legal damage.
- Giving rise to a remedy, typically monetary compensation.
Difference Between Tort and Crime
Torts affect private rights, while crimes affect public rights. Torts involve personal claims; crimes are handled by the state. Tort compensation goes to the injured party, while crime fines go to the government.
Difference Between Tort and Breach of Contract
In tort, duties are set by law and apply to all. Contracts are specific to the involved parties. Tort liability arises without consent; contracts depend on mutual consent.
Conclusion
In summary, tort law addresses wrongful acts that harm others, providing a basis for compensation. Common torts include negligence and assault. The theories of Salmond and Winfield present differing views on whether all wrongful acts or only certain ones constitute torts.
Reference
Myneni R.S (2009) Law of Torts And Consumer Protections, Asia Law House
