law

1. NATURE AND SCOPE OF LAW
OF TORT
Md. Omar Farque
Lecturer,
Department of Law
Eastern University

2. ISSUES TO BE DISCUSSED
Origin of Law of Tort
Theories of Law of Tort
Definition of Law of Tort
Objectives of Law of Tort
History and Development of Law of Tort
Distinction with other Branches of Law

3. ORIGIN OF LAW OF TORTS
The word tort is of French origin. It is derived from the Latin
word ‘tortam’, which means twist and implies, twisted or
tortious conduct.
In the early period of English law, the word tort was used as a
synonym for wrong but later it acquired a specific meaning
which was much narrower than the meaning of the word wrong.
For example: Throwing garbage from the window of anyone’s
home which fall upon and hit any stranger who is walking in the
road.

4. THEORIES OF LAW OF TORT
There are mainly two theories regarding this brunch of law. The
first theory was given by Sir Frederic Pollock in 1887. The first
theory is that, every civil wrong is a tort unless there are some
other justifications by law.
The second theory was propounded by Sir John Salmond. The
second theory is that, there are some specific kinds of tort. For
being a tort it must fulfill some specific and preset conditions or
criteria. That means an injury can be tort only if it fits in the
principles governing particular tort recognized by law.

5. DEFINITION OF LAW OF TORT
The prominent writer Salmond defines tort as “a civil wrong for
which remedy is a common law action for unliquidated damages
and which is not exclusively a breach of a contract or a breach of
a trust or other merely equitable obligation”.
According to Winfield, “Tortious liability arises from the breach
of the duty primarily fixed by law; this duty is towards person
generally and its breach is redressible by an action of
unliquidated damages”.

6. OBJECTIVES OF LAW OF TORT
The primary objectives of the law of tort are
a) to provide relief to injured parties for harms caused by
others;
b) to impose liability on parties responsible for the harm;
c) and to deter others from committing harmful acts.

7. HISTORY AND DEVELOPMENT OF LAW OF
TORT
The modern law of tort owes its origin from the English Common
Law. It is not a codified law. In Indian sub-continent also this
branch of law remains largely un-codified.
The field of tort still, in most part, remains an uncharted
territory in Bangladesh. Unfortunately, such an important branch
of law which deals with the remedies that any person can claim
for his suffering of an injury by any wrongful act committed by
other individuals or public authorities is being treated with
such(disregard) that there is a propensity among the lawyers to
completely disregard it as having no application in Bangladesh.
However, with an increasingly keen interest shown by a few
lawyers, academicians and judges, things are looking up lately.

8. CASE LAW
Case: Catherine Masud vs Md. Kashed Miah and others
This is a case of private law tort. It is significant because it was
the first case filed under Section 128 of the Motor Vehicle
Ordinance, 1983 which provides for the existence of Motor
Accident Claim Tribunal. However, the case was then transferred
from the tribunal of Manikganj to the High Court Division on the
basis of a petition made by the claimant under Article 110 of the
Constitution. The fact is that on 13.08.11, the deceased Tareq
Masud along with nine others was returning from Manikganj to
Dhaka in a microbus. When the microbus arrived at a place
named “Joka” on the Dhaka Aricha Highway, collusion took place
between the microbus and a bus named “Chuadanga Deluxe
Paribahan” coming from the opposite direction. As a result of the
accident, five passengers of the microbus suffered instant death
and all the surviving passengers were taken to the hospital.

9. CASE LAW
The question arose as to whether it was the bus driver’s fault
that caused the accident and whether the owners would be held
vicariously liable. Both the parties brought their witnesses who
were examined and cross-examined. However, there were
discrepancies among the accounts of the witnesses brought by
the defendant. Moreover, the bus driver did not have any valid
driving license and the bus itself had no fitness certificate either.
After examining the witnesses, the court was convinced that the
bus driver was driving the bus recklessly through the wrong
lane. The court went further and concluded that since the
owners had the knowledge about the absence of fitness
certificate of the bus and valid driving license of the driver, they
would be held vicariously liable.

10. DISTINCTION BETWEEN TORT AND CRIME
It has to keep in mind that tort and crime are two different things.
Crime is immoral act and it requires mens rea but in terms of tort it is
only a wrong and mens rea is merely absent.
Interest violated in Tort is interest of an individual only but a crime
violates the interest of a society as a whole.
In terms of crime, the State prosecutes the criminals as it fails to
protect the interest of the people but tort regards to any individual
person and for this reason a suit is brought by that individual person
whose legal interest is violated.
In case of a tort, a suit is filed in a Civil Court whereas in terms of
crime, prosecution is launched in a Criminal Court.
The object of the law of crimes is to maintain peace and order of the
society; on the other hand the object of the law of tort is to ensure the
recovery of loss of that person whose legal interest has been violated.
Remedy – tort (unliquidated) – crime (liquidated + confinement).

11. DISTINCTION BETWEEN TORT AND BREACH OF
CONTRACT
The law creates the duty to protect the interest of the people in
case of law of tort whereas that duty is settled by an agreement
between persons in case of breach of contract.
In case of a contract, the duty is towards the parties of the
agreement but in case of tort the duty is not to violate the
interest of every other person in the world.
In case of law of tort, unliquidated damages are given as a
remedy; that means compensation is given the amount of
which is unspecified which will be decided by the court. But the
remedy given in case of breach of contract is liquidated in
nature; that means, the amount of which can be specified
between the parties of the agreement and it can be mentioned
in the contract.

12. DISTINCTION BETWEEN TORT AND BREACH OF
TRUST
Historically the law of tort owes its origin to the common law of
England whereas the law relating to trust owes its origin to the
Equity court or the Court of Chancery.
The damages given as a remedy for breach of trust is
liquidated in nature but as regards tort it is unliquidated or
unspecified.