Concept of the Law of Tort

The concept of Tort law is not very native to the common people, It foreign and quite confusing to a general person. Moreover, the application of tort law in Bangladesh is also countable as there are only a few successful cases as an example. So general people have no idea what the Tort law is.

 

By its nature is not a Criminal law, not a pure civil law but something in between, something which is different but at the same time very efficient where other law is helpless or silent.  To understand tort law we have to dive deep and find out the core of tort law. 

Concept of the Law of Tort

Understanding the Concept of the Law of Tort

At first, let’s look at an example for general understanding;

 

Mr. Rahim was walking in a park, suddenly a dog of Karim bite in the leg of Mr. Rahim. Because of this dog bite Rahim was hospitalized. He suffered physically, mentally and economically, now the question is who would be liable for all this suffering and loss?

 

Let’s put some questions to make the legal aspect very clear.

 

  1. Does this incident violate any right of Mr. Rahim?
  2. Can we make the owner liable for such an incident?
  3. What would be the suitable remedy for Mr. Rahim?

 

Now let’s answer these questions.

 

  1. Yes, that incident violated the right of free movement of Mr. Rahim. As a citizen is his right to be free and fearless, it is his right to enjoy nature or maintain his own business in a safe condition. If his safety is violated his right has been violated.
  2. No, not completely; because Karim has no intention to unleash his dog or do any sort of harm to any person. Even if the owner can be blamed in both civil and criminal law, It would be very unlikely that he would be punished due to the very nature of civil and criminal law.

 

  1. From the above answer, we can see that there is a violation of law but in such cases, both criminal and (general) civil jurisdiction would be insufficient to make him liable, even if he could be liable that would not be very fruitful for Mr Rahim.

    Because to be convicted in criminal law the offender must have an intention to commit a crime and the case must be proved beyond a reasonable doubt, there must be a direct link to the crime. But in this case, no such thing exists.

    On the other hand, In civil law things depend on contract, statutory law or on documentation. The principle to win a civil suit is Balance of probability; The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. So, It can be easily understood that the application of (general) civil law has some limitations. As a result, this path is not so suitable to proceed.

    In the given case, all these problems can be avoided by the law of Tort, Tort Law is a special kind of Civil law that is different in nature from general civil law, which has different principles and observations by which this problem can be addressed and the sufferer can easily get his desired remedy.

 

Definition of Tort law

 

“Tort is a civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust, or other merely equitable obligation” – Salmond

 

Let’s break it in several parts to understand it.

 

Civil Wrong

 

There are two types of wrong, Civil wrong and Criminal wrong, Where any person is obliged to do  an act or Omit to such act  (Act or Omission) according to any civil but he fails to maintain his obligation has committed a civil wrong.  Though civil wrong is a common principle of civil suit but in tort is used more precisely, In our previous example we saw the dog was unleashed and thus an occasion happened, where it was the duty of the owner of the dog to keep it in securely so that it can not do any harm to others.  Therefore it was a civil wrong. In a civil wrong the victim must file a civil suit for compensation. 

 

It must be mentioned that the concept of civil wrong is used in many civil suits but in tort law, it is used extensively and especially where the direct link to any burden of proof varies significantly thus provides a huge advantage in tort cases.

 

Unliquidated Damage

 

Damage is the sum of money paid for any injury, Now the damage is of two kinds;

  • Liquidated or certain and
  • Unliquidated or uncertain

Here, In some cases damage is certain and predetermined by law or by contract, for example, “A” contracted with “B” to sell 100 Laptops, in that contract a clause was also added if A failed to provide those laptops within 30th April 2021 he will provide 100 taka as damages for each consecutive day. 

 

On the other hand, there are certain damages for injury or wrong where there are no certain rules or contract. In our previous example, we saw Rahim get the bite of Karims’ dog for kamrims’ negligence. Now, no law or court can be certain about the extent of the negligence so it is out of the question to predetermine such damage. In that case, we can say that would be unliquidated damage.

 

Law of Tort is specially focused on such damages, generally, the plaintiff gets a formattable amount of money as damages which is much higher than a general civil suit.

 

Above we have discussed the inclusion part from the definition of tort law but it would be incomplete if we do not discuss the exclusion part too. Let’s have a look at what would not be a part of the law of tort. 

 

Law of tort shall not deal with

 

  1. Breach of Contract

    Where two or more parties come to an agreement with each other to act or to omit something, with some terms and conditions that is a contract. If any party violated the contract or it’s terms and conditions then the party violates such liability under civil law.  The law of trot does not deal with such matters.
  2. Breach of Trust

    Where there is a formal trust for a beneficiary or where there is a relation of trust whether expressly or impliedly if any person violates such trust he shall be liable under civil law, the law of tort shall not be applicable in such a case.
  3. Equitable remedy

    In some cases, if the violation of law or any action is a civil wrong, which is not a breach of contract or breach of trust but an equitable remedy is there by any law (i.e The Specific Relief Act, 1877) then the law of tort shall not be applicable.

    It is worth mentioning that equitable remedy provides damages or compensation based on the suffered loss to provide equitable justice, but the law of tort preferred to provide extensive compensation for their negligence or other faults despite the actual damage.

 

By now, we have got the overall view of tort law and understood why we should prefer tort law instead of the general provision of civil law. Now let’s see some general conditions of liability in tort.

 

General conditions of liability of tort

 

There are certain conditions that must be fulfilled before making a person liable under the tort law. Either one or all of the elements must be present in a tort suit (Depending on the nature of the event). They are;

 

  1. An act or omission on the part of the defendant

    There must be some act or omission on the accused, which must be done by the accused.
  2. Some mental element – Intention, negligence or breach of strict liability

    A mental element or negligence or strict liability must be there to form a tort liability.

    1. Intention: One must have some ill intention or ill motive which is contradictory to the law. Or,
    2. Negligence: An act is negligent if the act done or happened is not intentional or more desired but it would not have happened if reasonable care were taken on time. Or,
    3. Strict Liability: Where in a situation requires greater care due to the nature of that thing/event/ substance but that care has not been given and which led to some damage.
  3. Injury or violation of legal right and damage

    Injury or violation of legal right or legal damage is an essential element of tort liability. Sometimes actual damage is not necessary.

    In some cases, legal damage without real injury/loss is sufficient in other cases both damages and injury would fulfil the conditions of tort liability.

 

Tort law has a wide scope of application. It has no limit as far as few conditions are met. It can provide a significant advantage over Criminal law or general Civil law but to use the power of tort law its understanding is necessary. It’s openness towards the adoption of principle and common law must be utilized by all for the greater good of society where our other branch of law proved to be inadequate. 

 

 

 

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Rayhanul Islam

Rayhanul Islam is a lawyer by profession, he is also a researcher. Critical thinking is his main focus. He is the founder and Editor in Chief of Law Help BD. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human right concept to the root level. e-mail: rayhan@lawhelpbd.com

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