Sharowat Shamin Lecturer, SoL LAW103: Delict: Law of Torts Introduction: Definition, nature and theories Sharowat Shamin Lecturer, SoL

What is ‘Tort’? Tort-French word, meaning ‘wrong’ Civil nature Word origin: ‘tortum’ (Latin), meaning ‘to twist’ Civil nature A civil wrong Neither a breach of contract nor a breach of trust or other mere equitable obligations Remedy- unliquidated damages

Tort defined Sir John William Salmond: Percy Henry Winfield: “Tort is a civil wrong for which remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligations.” Percy Henry Winfield: “Tortious Liability arises from breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”

Two competing theories According to Sir John Salmond, the law of torts may be said to consists of a neat set of a pigeon holes, each containing a specific tort. If the defendants wrong doses not fit any of these pigeon holes, he has committed no torts. (The pigeon-hole theory) The other theory propounded by Sir Fredrick Pollock was vehemently supported by Winfield which suggests that all injuries caused to another person are tort unless there is some justification recognized by law. [Cases: Skinner & Co. Vs. Shew & Co. (1893); Aikens Vs. Wisconsin (1904)]

Two competing theories (contd.) Salmond’s theory rejects creation of new torts and thus curtails Court’s inherent power to ensure justice. Pollock’s theory accepts court’s full power to create new torts because every injury is a tort unless there is some legally recognized justification for causing it. Whenever a new type of injury comes to be decided before the court it can give remedy to it.

Criticism to Salmond’s theory Winfield tried to establish the supremacy of the general principles of liability over the Salmond’s pigeon-hole theory on the ground of the following propositions: The courts have power to create new torts or at least new remedies for tortious injuries. Whether they will create them or not is a matter for their judicial discretion. Most torts are subject to what Frederick Pollock has happily described as general exceptions from liability such as ‘act of state’. Each specific tort has ingredients which must be present if the plaintiff is to win his case. He will lose if, e.g., in defamation, the defendant proves privilege; in false imprisonment if the defendant proves lawful arrest

Wrongs which are not torts Wrongs which are exclusively criminal Civil wrongs which are exclusively breach of contract Breaches of trust or other equitable obligations Which are quasi-contractual wrongs

Characteristics of tort Civil wrong Infringement of a right in rem, i.e., a right against the whole world, and not a right in personam, i.e. a right against a determined person Right fixed by law Common law action Remedy/damages

Distinctions Tort Vs. Crime Tort Vs. Breach of contract

Felonious Torts When an act amount to both tort and crime (felony), it is called a felonious tort. For example, assault, defamation etc. In England prior to 1967, the doctrine of merger of tort in felony was applied whereas a suit under the law of torts could not be filed unless the person was first prosecuted in a criminal court. In 1967, this rule was abolished.