Understanding Tortious Liability: Principles and the Calculus of Risk- by Judge Nazmul Hasan
Understanding
Tortious Liability: Principles and the Calculus of Risk
By-Judge Nazmul Hasan
In the realm of civil law, the law of torts serves as a primary
mechanism for providing relief to individuals who have suffered harm due to the
wrongful acts of others. Unlike contract law, which deals with breached
agreements, tort law focuses on duties imposed by the law itself to ensure
social harmony and justice.
Table of Contents
·
I. Introduction to Tortious Liability
·
II. Essential Elements of Tortious Liability
o
The Wrongful Act or Omission
o
Legal Damage (Damnum Sine Injuria
vs. Injuria Sine Damno)
o
Legal Remedy
·
III. The Standard of Care in Negligence
·
IV. Analysis: "Standard of Care Must Vary with the Risk
Involved"
o
Magnitude of Risk
o
The Importance of the Object (Social Utility)
o
Practicability of Precautions
·
V. Conclusion
I. Essential Elements
of Tortious Liability
For an action to qualify as a tort and for the
defendant to be held liable, three specific elements must coexist. If any of these are
missing, a legal action for tort will generally fail.
1. The Wrongful Act or
Omission
The first requirement is that the defendant
must have committed an act that they were not supposed to do, or failed to perform
an act that they were legally bound to do (an omission).
·
Example: A driver failing to stop at a red light (Act) or a municipality
failing to fence off a dangerous pit on a public sidewalk (Omission).
2. Legal Damage
Not all harm is compensable in court. The plaintiff must prove
they suffered "Legal Damage"—meaning an infringement of a legal
right. This is explored through two Maxims:
·
Injuria Sine Damno: An infringement of a legal right without
actual physical loss or profit loss.4 This is actionable (e.g., Trespass).
·
Damnum Sine Injuria: Damage or loss caused without the
infringement of a legal right. This is not actionable.
(e.g., A competitor opening a shop next door and causing you to lose business).
3. Legal Remedy
The wrongful act must fall under a category
that the law recognizes as a civil wrong for which a remedy (usually
unliquidated damages) is available. The maxim Ubi jus ibi
remedium (Where there is a right, there is a remedy) governs this
principle.
II. "Standard of
Care Must Vary with the Risk Involved"
In the law of negligence, the "Standard
of Care" refers to the degree of attentiveness and caution that a
reasonable person would exercise under similar circumstances. However, this
standard is not a fixed, one-size-fits-all rule. It is a variable standard.
The Principle of
Proportionate Care
The law dictates that as the danger of a situation increases,
the precautions required to meet the "reasonable person" standard
also increase. A person handling a loaded firearm is held to a much higher
standard of care than a person handling a walking stick.
Factors Influencing
the Variation of Risk:
1. Magnitude of Risk
This includes both the likelihood of injury and the seriousness
of the potential injury.
·
If a task is inherently dangerous (e.g., working with
high-voltage electricity), the law demands a higher degree of vigilance.
·
Case Reference: In Paris v. Stepney Borough Council,
the court held that because the employee was already blind in one eye, the risk
of total blindness was so grave that the employer owed a higher standard of
care to provide goggles compared to a sighted employee.
2. The Importance of
the Object (Social Utility)
Sometimes, a high risk is justified if the goal is of great
social value. For example, a fire engine or ambulance driver may take risks
that a private citizen cannot, because the "Standard of Care" adjusts
for the urgency of saving lives.
3. Practicability of
Precautions
The law does not demand the impossible. To
determine the standard, courts weigh the cost and difficulty
of taking precautions against the gravity of the risk.
If the risk is slight but the cost of prevention is enormous, the standard of
care may be lower.
"The care may be 'reasonable' only if it is proportionate
to the risk. The greater the hazard, the more the care that is required."
III. Conclusion
Tortious liability is the cornerstone of civil accountability, ensuring that wrongful conduct does not go unpunished. Central to this is the understanding that "care" is a relative term. By allowing the Standard of Care to vary with the Risk Involved, the legal system remains flexible and fair—imposing stricter burdens on those engaging in high-risk activities while protecting the public from foreseeable harm.
Nazmul Hasan
Senior Judicial Magistrate | Prime Minister Gold Medalist
Nazmul Hasan is a highly accomplished judicial officer and legal
scholar from Bangladesh, distinguished by a rare blend of judicial service
excellence and unparalleled academic achievement.
⚖️ Professional Expertise
|
Title |
Achievement / Service |
Details |
|
Senior
Judicial Magistrate |
Bangladesh
Judicial Service (BJS) |
Serving as a Senior Judicial
Magistrate, demonstrating profound expertise in dispensing justice and
administering court procedures. |
|
Service
Rank |
11th
Bangladesh Judicial Service (BJS) |
Secured the 7th Merit
Position overall in the rigorous 11th BJS competitive examination,
marking an exceptional start to a distinguished judicial career. |
🎓 Academic Distinction
|
Qualification |
Institution |
Recognition |
|
LL.B.
(Hons.) |
University of Rajshahi |
First
Class First (Top of the Cohort),
signifying ultimate academic mastery in undergraduate legal studies. |
|
LL.M. |
University of Rajshahi |
Achieved First Class
standing, further solidifying expertise and specialized knowledge in advanced
legal disciplines. |
✨ Honors & Achievements (Awards of
Excellence)
·
Prime
Minister Gold Medalist (2017)
Awarded the nation's most prestigious academic honor for
outstanding performance across all disciplines at the university level.
·
Agrani
Bank Gold Medalist for Academic Excellence (2023)
Recognized with this distinguished medal for sustained academic
excellence and leadership in the field of law.
Contact:
lawnewplatform2021@gmail.com
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