Definition

The word "tort" is derived from the Latin word “tortum” which means as "twisted" or "wrong." The term refers to a civil wrong causing injury or harm to another person, as opposed to a criminal wrong.

The law of torts can be defined as a body of rights, obligations, and remedies that are performed civilly as or between private persons and have some unlawful nature attributing to either civil or public injury. This also encompasses other kinds of civil wrongs and treats non-criminal harms with damages and other legal remedies.

Elements of Tort Law

 Wrongful Conduct:

Tort Law redresses acts or omissions considered wrong or unreasonable. The act in question may be classified as either intentional, negligent, or subject to strict liability. Liability without any fault

 Damages or Injury:

The plaintiff needs to establish the commission of actual damage or injury to have a valid tort claim. This may be in the form of physical harm, emotional distress, economic loss, and/or loss of reputation.

 Legal Remedy:

Torts usually result in compensatory damages, which help compensate the plaintiff for injuries caused. This may include punitive damages in those situations where there has been behaviour that is repulsive enough to warrant punishment and prevent others from committing the same in the future.

 Liability:

The fundamental basis of liability, or tort liability in general, is the principle that shows who is liable for the plaintiff's harm and to what extent.

Types of Tort

 Negligence

Negligence occurs when a person is not acting with reasonable care and causes injury to another. A driver falling asleep at the wheel because he did not take a break on time and causes an accident is considered negligence.

 Intentional Torts

These torts result in intentional action that causes an injury. This would include such acts as assault, battery, false imprisonment, defamation.

 Strict Liability

Absolute liability, or strict liability, arises in cases where a defendant is liable even when he shows no fault or intention. Such situations usually arise in the course of product liability or inherently dangerous activities.

 Nuisance

Nuisance refers to those disturbances that include noise that involves many people or any form of environmental pollution.

Objectives of Law of Torts

- Provides for monetary compensation for losses or damages suffered by the injured party.

- Deterrence by discouraging harmful behaviour by making individuals accountable for their wrong actions.

- Upholding just treatment and offering relevant remedies to those who have been wronged.

Nature of the Law of Torts

 Civil in Nature

The law of torts falls under the ambit of civil law and is, as such, distinguished from criminal law. It deals with disputes between private parties only and not with public offences.

It serves to regulate adversarial proceedings or disputes that arise between parties and to offer redress for injury or loss inflicted upon one person by another.

 Originating from Common Law

The law of tort has its origins in the principles of the common law, evolved through decisions of courts.

Common law is moulded and settled by courts of justice which decide on precedents to apply in similar cases arising thereafter.

 Emphasis on Wrongful Act

Addressing wrongs, the basic of tort law is to correct injury or damage caused by act or omission, where the wrongs may be of an intentional nature, based upon principles of negligence, or even be subject to strict liability which in itself embraces a wide range of wrongful conduct.

 Remedies

The tort system operates a compensatory and other forms of relief to the injured individual. The main relief is compensatory damages, which try to return the injured party to the position they would have found themselves had the wrongful act not occurred.

In some cases, punitive damages award punishes grave misconduct and deters further commission of the offences. Other reliefs that may be granted include injunctions to prevent further injury.

 Emphasis on Fault

In tort law, determination of liability must be established through fault. One has to prove that iwas due to carelessness, deliberate action, or meeting the threshold of strict liability.

The principle behind this approach differentiates tort from strict liability areas where the nature of the activity or defect itself, and not the intent or negligence of the defendant, assigns liability.

 Non-Contractual Framework

Independence of Contractual Relationship: While the law of contract deals with breaches of agreements, tort deals with a civil wrong for which a human being may be responsible without any prior contractual relationship. It deals with harm resulting from wrongful acts or omissions on the part of a person quite independent of any previous agreement.

 Varied Scope and Types

Tort law encompasses a broad area of civil wrongs including negligence, intentional torts, strict liability, and nuisance. Each one of these categories addresses different kinds of wrongful conduct and provides specific redress that is appropriate for the particular type of harm caused.

 Relation to Other Areas of Law

The law of tort is often related to other fields of law, like criminal law, contract law, and also several administrative laws. Just as the subject of law is a civil wrong, in many instances, there may be related issues of crimes or breaches of contracts that pose interesting legal questions.

 Principles of Justice and Fairness

The tort law embraces the basic ingredients of justice and equity in that a person who suffers injury or harm because of someone else's misfeasance gets adequate compensation; it further seeks to hold wrongdoers responsible for their actions.

 Evolving Nature

The dynamic nature of the law of torts lets it adapt to the changed social values and conceptions, changes within technology, and the growth in judicial perception.

The Courts can iron out and develop principles of tort to meet the new problems emerging and the contemporary needs of justice.

Discharge of Torts

In tort law, the term "discharge" refers to the end of liability on a tort claim. The liabilities can end through various means, each impacting the resolution of the claim differently. The main ways in which tort claims are discharged include:

 Settlement

It occurs when parties agree mutually to resolve the dispute between them without interference in the process by a tribunal. Here settlements typically occur through payment by the defendant of monetary damages or other actions seeking to redress the plaintiff.

The settlement reached and effected means that the claim is not paid. In most cases, the claimant loses the right to further any action at the court within the same case.

 Waiver or Release

A release or waiver is a contract between the two parties whereby the party claiming agrees not to sue for damages or injunctive relief in consideration of some payment or any other form of settlement.

A release or waiver, once executed, amounts to a formal relinquishment by the defendant of all liabilities arising from the wrong alleged to be committed.

 Accord and Satisfaction

It is a principle whereby there is a new agreement - accord - by the parties, which is an alternate performance or settlement of what was due. The accord must be followed by performance - that is, satisfaction - to discharge the claim.

When the accord is performed, the original claim becomes discharged and the claimant is precluded from seeking further remedies over the same issue.

 Statute of Limitations

The statute of limitations establishes a timeframe in which a tort action has to be initiated. It has the effect of barring the claim if litigation cannot be commenced within the allowable period of time.

A claim which has passed the statute of limitations is dismissed, so the claimant loses a chance for legal relief.

 Compromise

There is a mutual agreement by the parties to settle the dispute on different terms than those originally pursued.

The compromise would mean that the claim is discharged, so long as the agreed terms are met, thereby not allowing any further litigation on the matter.

 Full Performance

Under some circumstances, a claim can be discharged if the defendant carries out their obligations under an agreement or resolves the dispute to the satisfaction of the claimant.

The full performance or satisfactory resolution by the defendant discharges the claim.

 Cessation of Tortious Act

If the defendant ceases the tortious act or cures the harm, then the additional claims are not prosecutable by the claimant.

The claim is discharged because the harm is cured, and no further action needs to take place.

 Judicial Discharge

A judicial discharge occurs when the court dismisses a claimant's case on the grounds that it is defective in its process or lacks in merit.

From the point of view of the claimant, the mere dismissal by the court already turned the claim into dust and, therefore, he or she cannot pursue it anymore.

The death of a party to a tort claim may affect the survivability of the claim subject to the rules of the jurisdiction and the type of claim.

In a number of jurisdictions, the action will be statute-barred or transferred to the estate or legal representatives of the party that has died.

Injuria sine damno

It is a Latin expression used in the law of tort to denote a situation when, in case of the infringement of one's right, a legal injury is said to have taken place, even without the happening of any actual loss or damage. The term literally means "injury without damage."

The maxim shows that some rights are protected without actual loss or harm. It puts forth the concept that every violation of a right must have a legal remedy upon mere violation, even when no physical or pecuniary damage has been suffered, and ensures persons seek the protection of law for infringement of their rights.

Concept and Application

Injuria is a legal wrong, violation of one's right, involving an infringement or breach of duty. And Sine Damno, which can be literally translated to "without damage," puts across the idea that though a legal right is infringed, no actual loss or damage has ensued upon the plaintiff.

Legal Meaning of the term is an infringement of a person's legal right without causing financial loss, bodily harm, or damage that one can measure. This principle dramatically brings to light that under the law, there exist rights irrespective of the occurrence of actual harm. In this connection, the main issue is the infringement of the right and not the extent of its violation.

Defamation: A person whose reputation is infringed may, unless the defamatory statement leads to actual or substantial damages, claim damages against an invasion of such rights.

Trespass: Entering into another person's land without permission is considered trespass; physical damage does not have to be caused for there to be a violation of the owner's rights.

Legal Remedies in cases of injuria sine damn no often aim to deal just with the infringement of rights rather than to compensate the plaintiff for any actual loss suffered; these include nominal damages, that are handed down in symbolic amounts, simply to recognizes the infringement. Courts do grant injunctions to prevent further violations of plaintiff's rights.

Contrast with Damnum Sine Injuria. It is a Latin word that means damage without injury. It applies to situations where one has suffered damage or loss, but there has been no violation of legal rights. In such a case, there is no action in tort because the damage entails no breach of legal rights.

Salmond's Pigeon Hole Theory

Salmond, a great jurist, publicist, and judge of New Zealand, explained the Pigeon Hole Theory to convey his conception about the law of torts. According to him, the law of torts contains specific definite pigeon-holes or classes of civil injuries, such as negligence, libel, trespass, nuisance, and so forth. It postulates that there is not one general underlying law of tort but a number of separate torts with appropriate legal remedies. Salmond's analysis suggests that liability only ensues if an act squares with one of the categories or analogues to an existing tort. This concept he likened to a series of pigeon holes, each hole corresponding to a particular tort. If it cannot be brought within one of the specific categories, then it is not a tort.

In Bollinger v. Costa Brava Wine Co. Ltd. [1960] Ch. 262 at 283, Danckwerts J. said, "The substance was that before a person can recover for loss suffered from another's act, it must be shown that his case falls within the class of actionable wrongs." Salmond interprets this statement to mean that one is only liable under tort when the act committed is within the ambit of an existing tort or analogous to an existing tort. Therefore, this principle states that the courts are not at liberty to invent a new tort. New torts will only be recognized as far as the act is similar to other established torts.,

Under Salmond's theory, there are pigeon holes labelled with a particular defined tort such as pigeon holes of slander, malicious prosecution, or assault. For an act to amount to a tort therefore under this theory is, must fall into these pigeon holes. It implies that there is no room for new torts to evolve. Salmond held the view that the plaintiff has to bear the onus of the proof that his grievance falls within one of those pigeon holes. This therefore means that if the plaintiff cannot be able to prove that his case falls within an established tort, no legal remedy would be granted. Salmond's view would connote that there is no general principle of liability; certain wrongs have been decided upon and classified, and remedies are made only for those falling within the pre-defined classes.

Though certain set rules define an offense according to the act of an offender, Salmond's theory is said to have great similarity with criminal law. According to the holistic approach toward this theory, it considers that it is a closed and inflexible system and, in a manner, gives a narrow interpretation to the law of tort.

Argument in Favour of the Theory

Salmond's theory gained backing from Jenks who cited that Salmond never intended to imply that the courts were precluded from inventing new torts. Rather, novel wrongs must possess characteristics like the established torts and meet the stipulated criteria for being recognized as a tort. Salmond's 17th edition brings into light that, probably critics of this theory misinterpreted Salmond. It was never intended to mean by Salmond that torts had stopped their growth and the pigeon holes were closed to new wrongs.

Landmark Cases

Donoghue v. Stevenson [1932] AC 562, 578-599

The case set the modern law of negligence and defined the "neighbour principle" where individuals owe a duty of care in avoiding harm to those who could be foreseeably and directly affected by their actions.

The appellant, Mrs. Donoghue, found a snail in a bottle of ginger beer bought by her friend; as a result, she suffered from gastroenteritis. She made claims against the manufacturer for her illness.

The House of Lords ruled that the manufacturer owed a duty of care to the final consumer; hence, it laid the foundational principle of negligence.

Rylands v. Fletcher [1868] LR 3 HL 330

This is the case which laid down the doctrine of 'strict liability' for damages resulting from hazardous activities even in the absence of negligence.

Water from a reservoir built by Rylands flooded Fletcher's coal mine. Central issue: Whether Rylands was liable for the damage caused.

The court found Rylands absolutely liable for the damage resulting from the escape of water from his reservoir.

Ashby v. White [1703] 92 ER 126

This early case is significant because it argues both the tort of trespass and the protection of individual rights.

• Ashby was prevented from voting in an election and, in turn, sued White, the returning officer, for damages.

• The court held that Ashby had a right to damages for the violation of his legal right, even in the absence of physical harm.