Author: Jatin Arora
II semester Student, FIMT, GGIPU.
What is tort?
The word tort has been derived from the Latin word tortum, which means to 'twist'. The tort means a conduct which is not straight or lawful, but on the other hand, twisted or crooked. The tort is a civil wrong, where there is a breach of duty and a violation of rights of another person, giving rise to civil clause of action and for which compensation is recoverable. Eg.: A person driving car hits another driver while driving, is the case of tort. Definition of torts by different jurists: Salmond: According to Salmond, "It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation." Winfield: "Tortious liability arise from the breach of duty primarily fixed by the law: this duty is towards persons generally and its breach is redressibe by an action for unliquidated damages." Fraser:"It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party"
To derive the answer of the topic we need to understand some theories given by different jurists ,which are:
1. Pigeon hole theory
2. Prima facie tort theory
1.Pigeon hole theory: The pigeon hole theory was propounded by the salmond .According to, Salmond the law of torts consists each neat set of pigeon holes, each containing labeled tort. if the defendant's tort does not fit in any of these pigeon holes then he is not liable for a particular tort.In the case of, Donoghue v/s steveson shows that the law of torts is a expanding subject and making it in a crippled and restricted in pigeon holes is not valid. But,the Salmond argues his theory that just as a criminal law consists of a body of rules establishing specific offences ,so the law of torts consists of a body of rules establishing specific injuries.
WINFIELD'S VIEW :
Winfield stated that my neighbor can sue me if I injure him ,whether in the wrongs name like assault, battery ,defamation I will be held liable if I am unable to prove it. so this lead to the outcome of wider principle that all unjustifiable harms are tortious.
2. Prima facie tort theory:
This theory was propounded by Pollock and holmes in 19th century. This theory states that the wrong which does not fall under tort category may nevertheless be actionable if a wrongdoer without just cause or excuse has willfully and intentionally caused injury. Its imply means, the intentional infliction of injury without any justification is actionable. Pollock and Holmes organize tort into three basic categories:
1.cause of action based on intentional content
2.cause of action based on negligent conduct
3.cause of action based on strict liability
In simple words Pollock and Holmes states in the prima facie tort theory that any act done by a wrongdoer intentionally without any cause or action is justifiable in tort.
The term negligence derived from the Latin word negligentia, from neglegere means to neglect. Negligence is failure to exercise the care that a reasonably prudent person would exercise in like circumstances. Negligence involves harm caused by carelessness but not intentional harm. The elements of negligence: duty of care ,breach of duty , damages. It means that there was a duty of care that a prudent person must have taken reasonably , which was foreseeable and there is a breach of that duty for which we compensate damages.
Donoghue v/s steveson: This case illustrates the law of negligence.
The plaintiff drink the ginger beer which was given to him by his friend bought from the shop. The beer was supplied by the manufacturer David Steveson in scotland. After drinking the beer he found remains of slug of Snail. Then he filed a suit against Steveson.
According to Scots and English law, the manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. So held, by Lord Atkin, Lord Thankerton and Lord Macmillan.
Now the question arises that "THE NEGLIGENT ACT OF PEOPLE IGNORING GOVERNMENT GUIDELINES FOR COVID OUTBREAK BE CONSIDERED AS A TORT OR NOT?"
If we consider this question according to Salmond point of view by applying his theory then it simply means that not following government guidelines be consider in the tort of Negligence.
But why Negligence?
Let's consider the elements of Negligence:
1. Duty of care: In the context of COVID 19 every person duty of care is to stay at home and wear mask.
2. Breach of duty: And now he/she didn't follow that duty and moving out of the house without wearing mask is one of such breach. So there is this breach of duty. Being a reasonable man the law imposes duty on every person to follow the duty.
3. Injury: Now suppose he/she is infected with infection and cause spreading of the disease to other people out there. This results in physical injury affecting the health and life of public at large. The injury can also be emotional, physical, financial, legal.
So, now according to Salmond, Pollock theory the Negligence is a tort and each tort contain pigeon hole And This Negligent act can be fitted in those Pigeon holes .
"NEGLIGENT ACT OF PEOPLE IGNORING GOVERNMENT GUIDELINES IN COVID 19 OUTBREAK CAN BE A CIVIL WRONG AS WELL AS CRIMINAL WRONG" and It will be discussed in another blog by the author.
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