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Introducing tort in Bangladesh

INTRODUCTION
Tort is the area of law where in response to a private or civil wrong or injury the courts
provide the remedy of allowing a lawsuit for (usually monetary) damages. Thus, the goal
is to restore the victim to his or her former condition.
Tort law is said to be a development of the old maxim ubi jus ibi remedium (Every right
needs a remedy). The term tort comes from the Latin"tortus", meaning "crooked" or
"twisted. Derived from French for "wrong," a civil wrong or wrongful act, whether
intentional or accidental, from which injury occurs to another. Torts include all
negligence cases as well as intentional wrongs which result in harm. Therefore tort law
is one of the major areas of law (along with contract, real property and criminal law) and
results in more civil litigation than any other category. Some intentional torts may also
be crimes, such as assault, battery, wrongful death, fraud, conversion (a euphemism for
theft) and trespass on property and form the basis for a lawsuit for damages by the
injured party. Defamation, including intentionally telling harmful untruths about anothereither by print or broadcast (libel) or orally (slander)-is a tort and used to be a crime as
well.
1.1

Definition of Tort

A tort is a civil wrong for which the remedy is an action for unliquidated damages and
which is not exclusively the breach of a contract, or the breach of a trust, or the breach
of other merely equitable obligation-Salmond
The first reported case where the court used the word tort is an old (1597) English
case, Boulton v. Hardy(1597,cro.Elz.547)
The term tort is the French equivalent of the English word wrong and of the Roman law
term delict.
The word tort is derived from the Latin word tortum which means twisted or crooked or
wrong and is in contrast to the word rectum which means straight.
Everyone is expected to behave in a straightforward manner and when one deviates
from this straight path into crooked ways he has committed a tort. Hence tort is a
conduct which is twisted or crooked and not straight. As a technical term of English law,
tort has acquired a special meaning as a species of civil injury or wrong. It was
introduced into the English law by the Norman jurists. Tort now means a breach of some
duty independent of contract giving rise to a civil cause of action and for which
compensation is recoverable. In spite of various attempts an entirely satisfactory
definition of tort still awaits its master. In general terms, a tort may be defined as a civil
wrong independent of contract for which the appropriate remedy is an action for

unliquidated damages. Some other definitions for tort are given below:
Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed
by law; this duty is towards persons generally and its breach is redressible by an action
for unliquidated damages.
Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action
for unliquidated damages, and which is not exclusively the breach of a contract or the
breach of a trust or other mere equitable obligation.
Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a
duty arising out of a personal relation, or undertaken by contract) which is related in one
of the following ways to harm (including reference with an absolute right, whether there
be measurable actual damage or not), suffered by a determinate person:a) It may be an act which, without lawful justification or excuse, is
intended by the agent to cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal
duty, which causes harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of
possession or property), and treated as wrongful without regard to the actors
intention or knowledge. This, as we have seen is an artificial extension of the
general conceptions which are common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting
or omitting to act did not intend to cause, but might and should with due diligence
have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm
which the party was bound absolutely or within limits, to avoid or prevent.
1.2 Some General Conditions in Torts
1.2.1 Act And Omission
To constitute a tort there must be a wrongful act, whether of omission or commission,
but not such acts as are beyond human control and as are entertained only in thoughts.
An omission is generally not actionable but it is so exceptionally. Where there is a duty
to act an omission may create liability. A failure to rescue a drowning child is not
actionable, but it is so where the child is ones own. A person who voluntarily
commences rescue cannot leave it half the way. A person may be under duty to control
natural happenings to his own land so as to prevent them from encroaching others
land.

1.2.2 Voluntary and Involuntary Acts


A voluntary act has to be distinguished from an involuntary act because the former may
involve liability and the latter may not. A self willed act like an encroachment fro

business, is voluntary, but an encroachment for survival may be involuntary. The


wrongfulness of the act and the liability for it depends upon legal appreciation of the
surrounding circumstances.
1.2.3 Malice
Malice is not essential to the maintenance of an action for tort. It is of two kinds,
express malice (or malice in fact or actual malice) and malice in law (or implied
malice). The first is what is called malice in common acceptance and means ill will
against a person; the second means a wrongful act done intentionally without just cause
or excuse. Where a man has a right to do an act, it is not possible to make his exercise
of such right actionable by alleging or proving that his motive in the exercise was spite
or malice in the popular sense. An act, not otherwise unlawful, cannot generally be
made actionable by an averment that it was done with evil motive. A malicious motive
per se does not amount to injuria or legal wrong.

DEVELOPMENT OF THE CONCEPT OF THE LAW OF TORTS


2.1 Historical background
The subject of torts originates in the idea of hurt or damage done by force. The early
history of the law of torts, after its separation from criminal law, is embraced in the
history of the action of trespass. Trespasses early were divided into several distinct
actions, or perhaps it would be more accurate to say that trespass was the combination
of these several actions. In all of these branches of the action, however, we see present
the element of force or violence. In trespass quare clausium fregit, there is the forcible
entry upon or damage to the land; in trespass de bonis asportatis, there is the forcible
taking and carrying away of the goods of another; while in trespass to the person the
violence is directed against the person of the injured party. For indirect damages or for
damages unaccompanied with violence to a person's body, land or personal property, or
for such damages as those to his reputation there could be no relief under the action of
trespass, and there was no relief under any form of action until near the close of the
thirteenth century. Right of action for injuries which cannot be brought within the scope
of trespass owe their origin to the famous Statute of Westminster II 36 passed in 1285.
Under the authority of this statute there was created the new action of Case, or of
Trespass on the Case which with trespass covers the whole field of torts.
The most common view of the history of (common) tort law is that it grew from those
duties imposed upon actions that caused physical harm, regardless of fault, and
expanded from there to determine more refined moral standards of general liability, but
not everyone would agree. Some early quotes are "the thought of man shall not be tried
for the devil himself knoweth not the thought of man" (Chief Justice Brian, 1468), and "in

all civil acts, the law doth not so much regard the intent of the actor, as the loss and
damage
of
the
party
suffering".
Early post-Norman England required writs, which cost money, in order to bring a
defendant to court. There were a limited number of very specific writs. Local aristocracy
would limit the writs that could be issued to bring people to the King's court, largely
because they wanted to increase the power of the local courts.
Two writs of specific historic interest are the writ of trespass, and the writ of action on
the case.

2.2 The origin of law of Tort


Tort law arises largely out of common law.
Different states and different municipalities have their own tort standards, although there
are some unifying concepts.
Torts are made up of elements. The general four elements for any cause of action in tort
are:
(a)
(b)
(c)
(d)

Duty (frequently encountered viz. standard of care analyses)


Breach of duty
Causation
Damages

2.3 The Possible Functions of the Law of Tort


2.3.1 Corrective Justice
a) Tort law can restore the moral (occasionally) and financial balance offset
by the wrong.
b) The above functions best on an individualist level; when several parties are
involved, the rationale begins to get diluted.
2.3.2 Optimal Deterrence
a) We want to deter excessively risky activity.
b) Avoid losses that are worth avoiding.
c) This justifies the imposition of a negligence standard in most cases.
d) Naturally, worth avoiding is very subjective.
2.3.3 Loss Distribution
a) Promote the broad distribution of potential losses
b) Having a large number of people bear a small loss is better than the
converse.

c) Calabresi: Tort law should aspire to assign liability to the cheapest cost
avoider.
d) Problem: A lawsuit is an inefficient way of achieving an equitable distribution
of loss.
2.3.4 Compensation
a) Promote the compensation of those who have suffered injury.
b) The above has many problems, especially as tort law becomes more
sophisticated and broad-spectrum.
c) Consequently, it is easier to say that compensation under certain
circumstances promotes the other goals of tort law.
2.3.5 Redress of Social Grievances
a)
b)
c)

Tort law permits the triumph of small actors against large.


Populism and anti-institutionalism.
As with compensation, functions best in tandem with other tort rationales.

DIFFERENCE WITH OTHER SPECTRUM OF LEGAL JURISPRUDENCE


3.1 Law of Tort and Crime
Historically tort had its roots in criminal procedure. Even today there is a punitive
element in some aspects of the rules on damages. However tort is a species if civil
injury or wrong. The distinction between civil and criminal wrongs depends on the
nature of the remedy provided by law. A civil wrong is one which gives rise to civil
proceedings. A civil proceeding concerns with the enforcement of some right claimed by
the plaintiff as against the defendant whereas criminal proceedings have for their object
the punishment of the defendant for some act of which he is accused. Sometimes the
same wrong is capable of being made the subject of proceedings of both kinds. For
example assault, libel, theft, malicious injury to property etc. in such cases the wrong
doer may be punished criminally and also compelled in a civil action to make
compensation or restitution.
Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where the
appropriate remedy for it is an action for unliquidated damages. Thus for example,
public nuisance is not a tort merely because the civil remedy of injunction may be
available at the suit of the attorney general, but only in those exceptional cases in which
a private person may recover damages for loss sustained by him in consequence

thereof. However it has to be born in mind that a person is liable in tort irrespective of
whether or not an action for damages has been given against him. The party is liable
from the moment he commits the tort. Although an action fro damages is an essential
mark of tort and its characteristic remedy, there may be and often other remedies also.
3.1.1 Difference in Doctrine and Structure
In the beginning, of course, crime and tort were not sharply distinguished. At early
common law, a victim could pursue justice for the same wrongful act either through a
forerunner of criminal law or through a forerunner of tort law. But over time, criminal law
and tort law have evolved to encompass a number of distinctive and contrasting
features.
The following nine features are especially salient.
(1) The state prosecutes violations of criminal law. A victim's consent is neither
necessary nor sufficient for a prosecution to be brought. In tort law, by contrast, the
victim decides whether to bring a tort claim and is free to choose not to do so. This
structural difference is sometimes given a more substantive gloss: criminal law prohibits
"public" wrongs and tort law "private" wrongs. But what exactly does that mean? Part of
what it means is this second point of distinction:
(2) Tort law typically requires harm as a prerequisite to a remedy. Criminal law does not.
Specifically, criminal law punishes not only:
(a) Acts that is harmful to others, but also:
(b) Acts that are harmful only or mainly to the actor being Punished;
(c) Dangerous acts that have not yet caused harm; and
(d) Acts that the community considers immoral, even if the acts are not "harmful" in the
narrower sense of the term. By contrast, tort law mainly provides a remedy for harmful
acts, not for acts that create risks of future harm, and not for acts that are considered
immoral but not harmful.
(3) Criminal law often imposes much more severe sanctions than tort law, of course:
loss of liberty or even of life. So the procedural protections in criminal law obviously are
much more extensive and (in theory at least) a much greater barrier to liability. For
example, the criminal defendant, unlike the tort defendant, must be proven guilty
beyond a reasonable doubt, the exclusionary rule sometimes applies, and the doublejeopardy rule precludes the same jurisdiction from pursuing multiple convictions for the
same conduct.
(4) Criminal law, in theory at least, contains a proportionality principle, requiring that the

punishment "fit" the crime. Punishment should be proportional to the culpability of the
actor and the seriousness of the harm or wrong he has committed or threatened. But
tort law does not purport to provide remedies proportional to the injurer's wrong:
normally, compensation is the remedy, whatever the nature of the tort or wrong. To be
sure, the compensatory remedy is scaled to the severity of the harm caused, and, in
that sense, is proportional. But the tort remedy usually does not vary with the culpability
of the injurer. Suppose, in three separate incidents, injurers A, B, and C cause precisely
the same harm to their respective automobile accident victims; but A is strictly liable for
a manufacturing flaw in the automobile, a flaw that could not have been prevented by
due care; while B is negligent for momentarily taking his eyes off the road; and C is
negligent for dangerously passing another car on a busy highway. A, B, and C will pay
precisely the same damages. Of course, punitive damages, in the small number of
cases where they are awarded, are an important exception: they do achieve some
degree of proportionality between the level of the injurer's culpability and the damages
he must pay. But even punitive damages are not nearly as sensitive to differences in
degrees of culpability as criminal law sanctions are. Although the degree of
reprehensibility of the injurer's conduct is sometimes reflected in the size of a punitive
damage award, many other factors also affect the size of that award, including whether
the injurer's course of conduct caused widespread harm to persons other than the
plaintiff. Related to this point about proportionality is the following distinction:
(5) Criminal law contains a much broader spectrum of fault or culpability than does tort
law. The spectrum is wider along two dimensions: the state of mind, or mens rea,
element and the conduct, or social harm, element. Thus, the requisite culpable state of
mind in criminal law ranges from strict liability to negligence to recklessness to
knowledge to purpose, with punishment varying according to that mens rea. (The
multiple degrees and categories of homicide are the best example of this range.) And
the conduct or social harm element also ranges enormously. Every American jurisdiction
contains an extraordinary number and range of criminal offenses. By contrast, most of
tort law is governed by a negligence standard. There are relatively few categories of
intentional torts and even fewer categories of recklessness and strict liability. To be sure,
a number of distinct torts address distinct forms of conduct and social harm other than
the physical harm that negligence law protects. For example, the protection of emotional
harms ranges from emotional distress negligently created by an actor whose conduct
threatened physical harm, to invasions of privacy, to defamation. Nevertheless, the
number of discrete tort causes of action pales in comparison to the number of distinct
crimes.
(6) Criminal law requires a greater minimal level of fault before liability will be imposed
than does tort law. This is a very crude generalization, with many exceptions. Still, the
minimum fault requirement tends, in criminal law, to be something like gross negligence

or even recklessness, while in tort law, ordinary negligence usually suffices. Criminal
law does contain some doctrines of strict liability, especially with respect to the grade of
the offense (e.g., reasonable mistake is no defense if it only goes to the amount of
illegal drugs that the actor possesses or to the value of the goods that he has stolen)
and also with respect to mistake or ignorance of law, where even reasonable mistake or
reasonable ignorance is normally no defense. But strict liability is less widespread in
criminal law than in tort law. Tort recognizes such strict liability doctrines as liability for
abnormally dangerous activities, for manufacturing defects in products, and for wild
animals. Tort law also pervasively imposes strict liability in the form of vicarious liability,
especially the liability of employers for the tortious acts of their employees. More
fundamentally, criminal law targets conduct that is impermissible. Or, as economists
might say, the optimal incidence of criminal conduct is zero. But tort law sometimes
creates liability for perfectly permissible conduct, conduct that we would not want to
preclude. As Robert Cooter put it, criminal law exclusively imposes sanctions, while tort
law sometimes prices an activity.
(7) Criminal law pays much less attention to the victim's conduct than does tort law.
First, in criminal law, victim fault hardly ever matters. Contributory negligence is not a
criminal law defense, but it is routinely taken into account in tort law. Second, the
consent of the victim to the behavior of the wrongdoer, or to the risks imposed by his
behavior, is much more likely to be a full defense in tort law than in criminal law.
Criminal law includes many so-called victimless crimes, that is, crimes in which both of
the immediate parties to the transaction consent, such as prostitution, gambling, and
drug distribution. And consent is generally no defense to causing serious bodily injury,
as opposed to minor bodily injury, in criminal law; but in tort law, it will more often serve
as a full defense.
(8) Criminal law is statutory. The doctrine of common-law crimes is largely defunct. By
contrast, tort law remains mainly a set of common-law, judge-made doctrines (although
the statutory overlay is increasing). This fundamental difference is related to many
others. For example, criminal law tends to produce more detailed specifications of
wrongful behavior than tort law, which, in important domains (especially negligence),
creates liability standards that are maddeningly vague. At the same time, criminal law is
in some ways more difficult to change in response to changing conditions. Tort law
provides a more flexible framework for challenging new forms of wrongdoing, such as
clergy malpractice or invasions of privacy through new technology.
(9) Excuses to liability are recognized in criminal law much more readily than in tort law.
Thus, the insane are generally liable for their torts, but are not criminally responsible
(though again, this theoretical difference is belied by actual legal practice, since it is
extraordinarily difficult for mentally disordered criminal defendants to succeed with an

insanity defense). Moreover, criminal law and tort law differ in their treatment of children:
even relatively young children are often liable for torts, but they are not criminally
responsible.
3.2 Law of Tort and Contract
The definition given by P.H. Winfield clearly brings about the distinction between tort
and contract. It says, tortious liability arises from the breach of a duty primarily fixed by
law; this duty is towards persons generally and its breach is redressible by an action for
unliquidated damages. A contract is that species of agreement whereby a legal
obligation is constituted and defined between the parties to it. It is a legal relationship,
the nature, content and consequence of which are determined and defined by the
agreement between the parties. According to Salmond, a contract arises out of the
exercise of the autonomous legislative authority entrusted by the law to private persons
to declare and define the nature of mutual rights and obligations.
At the present day, tort and contract are distinguished from one another in that, the
duties in the former are primarily fixed by law while in the latter they are fixed by the
parties themselves. Agreement is the basis for all contractual obligations. People
cannot create tortious liability by agreement. Thus I am under a duty not to assault you,
not to slander you, not to trespass upon your land because the law says that I am under
such duty and not because I have agreed with you to undertake such duty.
1. Some of the distinctions between tort and contract are given below:
A tort is inflicted against or without consent; a contract is founded upon consent.
2. In tort no privity is needed, but it is necessarily implied in a contract.
3. A tort is a violation in rem (right vested in some person and available against
the world at large.); a breach of contract is an infringement of a right in personam
(right available against some determinate person or body).
4. Motive is often taken into consideration in tort, but it is immaterial in a breach
of contract.
5. In tort the measure of damages is not strictly limited nor is it capable of being
indicated with precision; in a breach of contract the measure of damages is
generally more or less nearly determined by the stipulations of the parties.
In certain cases the same incident may give rise to liability both in contract and in tort.
For example, when a passenger whilst traveling with a ticket is injured owing to the
negligence of the railway company, the company is liable for a wrong which is both a
tort and a breach of a contract.
The contractual duty may be owed to one person and the duty independent of that
contract to another. The surgeon who is called by a father to operate his daughter owes
a contractual duty to the father to take care. If he fails in that duty he is also liable for a
tort against the daughter. In Austin v. G.W. Railway, a woman and her child were

traveling in the defendants train and the child was injured by defendants negligence.
The child was held entitled to recover damages, for it had been accepted as passenger.
There is a well established doctrine of Privity of Contract under which no one except the
parties to it can sue for a breach of it. Formerly it was thought that this principle of law of
contract also prevented any action being brought under tortuous liability. But this fallacy
was exploded by the House of Lords in the celebrated case of Donoghue v. Stevenson
. In that case a manufacturer of ginger beer had sold to a retailer, ginger beer in a bottle
of dark glass. The bottle, unknown to anyone, contained the decomposed remains of a
snail which had found its way to the bottle at the factory. X purchased the bottle from the
retailer and treated the plaintiff, a lady friend (the ultimate consumer), to its contents. In
consequence partly of what she saw and partly of what she had drunk, she became
very ill. She sued the manufacturer for negligence. This was, of course, no contractual
duty on the part of the manufacturer towards her, but a majority of the House of Lords
held that he owed a duty to take care that the bottle did not contain noxious matter and
that he was liable if that duty was broken.
The judicial committee of the Privy Council affirmed the principle of Donoghues case in
Grant v. Australian Knitting Mills Ltd. Thus contractual liability is completely irrelevant to
the existence of liability in tort. The same facts may give rise to both.
Another discrepancy between contracts and torts is seen in the nature of damages
under each. In contracts the plaintiff will be claiming liquidated damages whereas in
torts he will be claiming unliquidated damages. When a person has filed a suit or put a
claim for the recovery of a predetermined and fixed sum of money he is said to have
claimed liquidated damages. On the other hand when he has filed a suit for the
realization of such amount as the court in its discretion may award, he is deemed to
have claimed unliquidated damages.