The Law of Tort: Purpose and Scope
The Law of Tort serves as the fundamental mechanism for redressing civil wrongs in common law jurisdictions. Unlike criminal law, which seeks to punish, or contract law, which enforces promises, Tort Law is designed to restore an injured party to their original position through the award of damages. It is a vibrant, judge-made field that balances the competing interests of individual liberty and social responsibility. This article provides a comprehensive academic exploration of what constitutes a tort, evaluates the expansive nature of these wrongs, and applies these principles to a complex scenario involving contributory negligence on a fog-shrouded highway.
The Anatomy of a Tort: Essential Elements of Liability
To establish liability in tort, a plaintiff must generally prove three interconnected components. This is often summarized by the maxim: Ex turpi causa non oritur actio is not the focus here, but rather the formula of Wrongful Act + Legal Damage + Legal Remedy.
A Wrongful Act or Omission
The defendant must have done something they were legally bound not to do, or failed to do something they were legally bound to do.
- Example: In Donoghue v Stevenson [1932], the “Snail in the Bottle” case, the manufacturer’s failure to maintain a clean bottling process was the wrongful omission.
Legal Damage (Damnum Sine Injuria vs. Injuria Sine Damno)
Not every loss is a legal injury.
- Injuria Sine Damno: An infringement of a legal right without actual physical loss (Actionable per se). In Ashby v White [1703], the plaintiff was prevented from voting. Even though his candidate won, his legal right was violated, and the tort was established.
- Damnum Sine Injuria: Actual loss without the infringement of a legal right. In Gloucester Grammar School Case [1410], a teacher setting up a rival school caused financial loss to the original school, but since no legal right was violated, no tort occurred.
Legal Remedy
The wrong must fall under a category that the law recognizes and provides a remedy for, typically in the form of unliquidated damages.
Summary of Essential Elements of a Tort
| Element | Description | Illustrative Case |
|---|---|---|
| Wrongful Act or Omission | Conduct that breaches a legal duty | Donoghue v Stevenson [1932] |
| Legal Damage | Injury recognized by law | Ashby v White [1703] |
| Legal Remedy | Judicial relief, usually damages | Unliquidated damages |
Evaluating the Breadth: “A Large Number of Wrongs”
The statement that “the law of tort comprises a large number of wrongs” refers to the Pigeon-Hole Theory vs. the General Principle Theory.
- Sir John Salmond: He argued that there is no “Law of Tort,” but rather a “Law of Torts”—a collection of specific, labeled pigeon-holes (Trespass, Negligence, Libel, Slander, etc.). If a wrong does not fit a hole, it is not a tort.
- Winfield’s View: Modern jurisprudence suggests that the law is expansive. The creation of new torts, such as Strict Liability in Rylands v Fletcher [1868] (where a party is liable for the escape of dangerous things from their land) or the modern tort of Privacy, proves that the law of tort is a growing forest, not just a set of static boxes.
The Boundaries of Liability: Wrongs That Are Not Torts
While the Law of Tort is broad, it is distinct from other legal categories:
- Breach of Contract: A tort is a breach of a duty imposed by law, whereas a contract is a breach of a duty imposed by consent of the parties.
- Criminal Wrongs: Torts are private wrongs against individuals; crimes are public wrongs against the State. While an assault is both a tort and a crime, the tort aspect focuses on compensation, not imprisonment.
- Breach of Trust: These are matters of Equity. If a trustee mismanages funds, it is a breach of fiduciary duty, not a tort.
- Moral Wrongs: Acts that are morally reprehensible but legally permitted (for example, failing to save a drowning person when you have no legal duty to act) are not torts.
Case Analysis: The Foggy Highway Accident
Scenario
In a foggy morning the defendant left his lorry lying on the middle of a busy road. The plaintiff approaching on a motorbike saw the lorry but failed to control its speed and met an accident.
This scenario requires an analysis of Negligence and the defense of Contributory Negligence.
Liability of the Defendant (The Lorry Driver)
- The defendant left a lorry in the middle of a busy road during a fog.
Duty of Care
Under the “Neighbor Principle” from Donoghue v Stevenson, a driver owes a duty to other road users.
Breach of Duty
Leaving a vehicle stationary in the middle of a road in poor visibility is a clear breach of the standard of care. This creates a “trap” or a significant hazard.
Leading Case
In Ware v Garston Haulage Co Ltd [1944], a trailer left on the road at night without lights was deemed a nuisance and an act of negligence.
Liability of the Plaintiff (The Motorcyclist)
- The plaintiff saw the lorry but failed to control their speed.
Contributory Negligence
If the plaintiff’s own lack of care contributed to the damage, their compensation may be reduced.
The “Standard of Care”
A rider must adapt their speed to the visibility conditions. By “failing to control its speed” despite seeing the hazard, the plaintiff failed to act as a “reasonable man.”
Leading Case
In Sayers v Harlow UDC [1958], the court held that while the defendant was negligent, the plaintiff’s own hazardous method of trying to escape a locked cubicle contributed to her injury, leading to a reduction in damages.
Apportionment
Under the Law Reform (Contributory Negligence) Act 1945, the court will not dismiss the claim but will reduce the damages proportionately. The defendant is liable for creating the hazard, but the plaintiff is liable for failing to react reasonably to a known danger.
Summary of Liability
| Party | Conduct | Legal Consequence |
|---|---|---|
| Defendant (Lorry Driver) | Left a lorry in the middle of a busy road in fog | Breach of duty; primary negligence established |
| Plaintiff (Motorcyclist) | Saw the lorry but failed to control speed | Contributory negligence; damages reduced |
Conclusion: The Evolving Equilibrium of Justice
The Law of Tort is not a static list of prohibitions but a living body of law that adapts to societal needs. Whether it is defining the essentials of a civil wrong or balancing the scales of liability in a roadside accident, the objective remains the same: the equitable distribution of loss.
As demonstrated in the case of the motorcyclist and the lorry, the law does not operate in a vacuum of “all-or-nothing” blame; rather, it meticulously weighs the conduct of all parties to ensure that the burden of injury falls where it is most legally and morally appropriate.
Written By: Judge Nazmul Hasan
Senior Judicial Magistrate | Prime Minister Gold Medalist
Nazmul Hasan is a highly accomplished judicial officer and legal scholar from Bangladesh, distinguished by a rare blend of judicial service excellence and unparalleled academic achievement.
Professional Expertise
| Title | Achievement / Service | Details |
|---|---|---|
| Senior Judicial Magistrate | Bangladesh Judicial Service (BJS) | Serving as a Senior Judicial Magistrate, demonstrating profound expertise in dispensing justice and administering court procedures. |
| Service Rank | 11th Bangladesh Judicial Service (BJS) | Secured the 7th Merit Position overall in the rigorous 11th BJS competitive examination, marking an exceptional start to a distinguished judicial career. |
Academic Distinction
| Qualification | Institution | Recognition |
|---|---|---|
| LL.B. (Hons.) | University of Rajshahi | First Class First (Top of the Cohort), signifying ultimate academic mastery in undergraduate legal studies. |
| LL.M. | University of Rajshahi | Achieved First Class standing, further solidifying expertise and specialized knowledge in advanced legal disciplines. |
Honors & Achievements (Awards of Excellence)
- Prime Minister Gold Medalist (2017)
Awarded the nation’s most prestigious academic honor for outstanding performance across all disciplines at the university level. - Agrani Bank Gold Medalist for Academic Excellence (2023)
Recognized with this distinguished medal for sustained academic excellence and leadership in the field of law.
Contact Details Email: [email protected]
