This is a brief introduction to the Law of torts and its dynamism.
The Philosphy of Law of Tort
Tort also known as delict in Roman Law, means wrong/twisted conduct. In Society everyone has a basic freedom of action, however this freedom of action has to be balanced & curtailed so as to protect the society’s freedom of interests as well. This balancing of interests/Social Engineering forms the substratum of the entire law of torts. A person owes a duty to the society at large not to indulge in acts/omissions that violate the rights of others. These rights are in rem and their redress is an action for unliquidated damages. Tort law also serves the maxim ‘ubi jus ibi remedium’ i.e where there is a right there is a remedy. The law of torts provides remedy to address the infraction of rights. Now since the rights are innumerable and many, the remedies have to keep evolving as well. Hence whenever a person’s rights are violated – his redress has to be there. This idea was initially opposed by Salmond whose theory of Law of Torts – was based on pigeon hole-ing which purpoted that if there was a existing tort to which remedy can be traced then only it’s redressible, in opposition to this Winfield – named his theory law of tort – using ‘tort’ as a common noun, his argument was that torts are practically endless – and redress to be had notwithstanding absence of category of tort.
Though the elements of torts differ greatly with respect to different torts, the basic elements of a tort are :-
2) Malice in law – i.e without lawful justification (here balancing of rights becomes important)
3) Malice in fact – (evil intention/motive – not a sine qua non for all torts)
4) Reasonable Foresight of Consequences.
The concept of Malice in law is important to understand in order to grasp the nature of tortious liability, malice in law – is absence of lawful justification for one’s act. It is a condition precedent for tortious liability. For eg: Hammering on my wall intentionally to disturb my neighbour’s music classes is without legal justification and so is firing indiscriminately on my land to stop my neighbour’s foxes from breeding.
Malice in fact – or evil intention is not necessary for all torts, the law of torts believes that if my action is legally justifiable – then my motives (howsoever bad need not be looked into) as regards Reasonable foresight – the test of neighbourly duty laid down by J. Atkin in Donoghue v. Stevenson – is exemplary – it was based on christian duty of love thy neighbour, which was translated into “Duty of care towards the neighbour” My neighbour in law the judges said was the person who was so directly & intimately affected by my actions that I ought to have him in my contemplation while acting or determining my actions.