Introduction to the Law of Torts
In the realm of civil law, the law of torts serves as a primary mechanism for providing relief to individuals who have suffered harm due to the wrongful acts of others. Unlike contract law, which deals with breached agreements, tort law focuses on duties imposed by the law itself to ensure social harmony and justice.
Essential Elements of Tortious Liability
For an action to qualify as a tort and for the defendant to be held liable, three specific elements must coexist. If any of these are missing, a legal action for tort will generally fail.
| Element | Core Requirement | Illustration |
|---|---|---|
| The Wrongful Act or Omission | An act done unlawfully or failure to perform a legal duty | Failing to stop at a red light; failure to fence a dangerous pit |
| Legal Damage | Infringement of a legally protected right | Trespass without actual loss |
| Legal Remedy | Availability of a civil remedy recognized by law | Unliquidated damages |
The Wrongful Act or Omission
The first requirement is that the defendant must have committed an act that they were not supposed to do, or failed to perform an act that they were legally bound to do (an omission).
Example: A driver failing to stop at a red light (Act) or a municipality failing to fence off a dangerous pit on a public sidewalk (Omission).
Legal Damage
Not all harm is compensable in court. The plaintiff must prove they suffered “Legal Damage”—meaning an infringement of a legal right. This is explored through two Maxims:
| Maxim | Meaning | Legal Position | Example |
|---|---|---|---|
| Injuria Sine Damno | Infringement of a legal right without actual loss | Actionable | Trespass |
| Damnum Sine Injuria | Loss without infringement of a legal right | Not actionable | Loss of business due to competition |
Legal Remedy
The wrongful act must fall under a category that the law recognizes as a civil wrong for which a remedy (usually unliquidated damages) is available. The maxim Ubi jus ibi remedium (Where there is a right, there is a remedy) governs this principle.
“Standard of Care Must Vary With the Risk Involved”
In the law of negligence, the “Standard of Care” refers to the degree of attentiveness and caution that a reasonable person would exercise under similar circumstances. However, this standard is not a fixed, one-size-fits-all rule. It is a variable standard.
The Principle of Proportionate Care
The law dictates that as the danger of a situation increases, the precautions required to meet the “reasonable person” standard also increase. A person handling a loaded firearm is held to a much higher standard of care than a person handling a walking stick.
Factors Influencing the Variation of Risk
- Magnitude of Risk
This includes both the likelihood of injury and the seriousness of the potential injury. - If a task is inherently dangerous (e.g., working with high-voltage electricity), the law demands a higher degree of vigilance.
Case Reference: In Paris v. Stepney Borough Council, the court held that because the employee was already blind in one eye, the risk of total blindness was so grave that the employer owed a higher standard of care to provide goggles compared to a sighted employee.
The Importance of the Object (Social Utility)
Sometimes, a high risk is justified if the goal is of great social value. For example, a fire engine or ambulance driver may take risks that a private citizen cannot, because the “Standard of Care” adjusts for the urgency of saving lives.
Practicability of Precautions
The law does not demand the impossible. To determine the standard, courts weigh the cost and difficulty of taking precautions against the gravity of the risk. If the risk is slight but the cost of prevention is enormous, the standard of care may be lower.
“The care may be ‘reasonable’ only if it is proportionate to the risk. The greater the hazard, the more the care that is required.”
Conclusion
Tortious liability is the cornerstone of civil accountability, ensuring that wrongful conduct does not go unpunished. Central to this is the understanding that “care” is a relative term. By allowing the Standard of Care to vary with the Risk Involved, the legal system remains flexible and fair—imposing stricter burdens on those engaging in high-risk activities while protecting the public from foreseeable harm.
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 And 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.
Professional Profile Summary
Nazmul Hasan’s profile reflects a commitment to judicial integrity and academic rigour, positioning him as a leading figure in the Bangladesh legal community.
Email: [email protected]
