Introduction

Tort

‘Tort’ is the French substitute of the English word ‘wrong’. The Norman conquest of England
in 1066 A.D. by William, the conqueror made very important changes in the culture of the
country. Law as also one of the subjects to this change. Norman jurists introduced the term
‘tort’ into common law of the country after the successful conquest. The word ‘tort’ comes
from the Latin word ‘Tortum’ which literally means ‘crooked’ or ‘to twist’, it also refers to
twisted or tortious conduct, first used in Boulton v. Hardy.

Some definitions of ‘tort’ are given below:

‘Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.’

‘Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.’

According to Fraser, “Tort is an infringement of a right in rem of a private individual giving

it a right of compensation at the suit of the injured party.”

Professor Winfield defines it “Tortious Liability arises from the breach of a duty primarily
fixed by the law: this duty is towards persons generally and its breach is redressable by an
action for unliquidated damages.”

Negligence

‘Negligentia’ Latin for negligence can be described as a failure to implement right and or
principled ruled care which is expected to be implemented amid particular situations.

Negligence is a wrongful act leading to a legal injury which is suffered by one person at the
hands of another who fails to take reasonable care to avoid what a reasonable man would
regard as a foreseeable risk. Negligence is the area of law which deals with injuria caused due
to failure of duty of care causing foreseeable harm to the claimant or his/her property. The
main idea of negligence is to stop causation of potential harm to other people and their
property due to lack of practice of reasonable care.

If a person suffers loss due to negligent or careless act of others, he or she may be able to ask
for compensation for such harm caused. The loss may contain bodily injury,
damage/destruction done to property, psychiatric issues, or fiscal loss. The five-part model
used to asses on the basis of law of negligence includes such duty, its breach, factual
causation, legal causation, and damages.

The Historical Background of Negligence

Negligence has its origins as a procedure known as an action on the case, it is a process of
showing negligence or carelessness to prove a tort. Originally the proof of tort depends on
deliberate and direct interference with the claimant’s possessions or the claimant himself.
But, a distinct case of liability was created, grounded on negligent acts where it was not
possible.

Pre-twentieth century judges started recognising quite a few people suffered injuria or loss
due to negligent acts than intentional ones. Near the close of eighteenth-century judges
created a principle which stated that in certain situations the defendants could be held liable
for their careless or negligent acts which caused or could cause a foreseeable loss or injury to
the plaintiff. But there was no general duty or the means of establishing one.

Elements of Negligence Claims

Basic things that need to be established by a person to sue in negligence are called ‘elements’
of negligence.

Four elements are established by most jurisdictions to a negligence claim:

1. Duty: the duty of defendant to others as well as the plaintiff, to practice rational care,
2. Breach: the breach of that duty by an act or omission of an act
3. Damages: injury suffered by plaintiff due to commission or omission
 4. Causation: the injuria being a direct result of the wrongdoer’s commission or
omission

The number of elements differs from jurisdiction to jurisdiction. It ranges from the
basic three: duty, breach, proximately caused harm to the five given above: duty, its
breach, factual causation, legal causation, and damages.

Though, at its core, the definition of a negligent act remains similar.

Duty of Care

Failure to commit or omit doing an act which causes legal harm to the person to whom the
duty is owed. The concept of duty arises from the existence of a legally recognised duty or
obligation. And, duty of care is the term used in the tort of negligence.

Breach of Duty

Once established that a duty of care was owed by the defendant to the plaintiff, the matter of
breach of duty should be resolved. The test is both objective and subjective. The respondent
who purposely (abstract, which is completely founded on perception and individual bias or
view) uncovered the offended party/inquirer to a considerable danger of misfortune, breaks
that obligation. The respondent who neglects to understand the generous danger of
misfortune to the offended party/petitioner, which any sensible individual (objective, which is
completely founded on ground certainties and reality with no close to home partiality or
purpose of view.) in a similar circumstance would plainly have acknowledged, likewise
breaches that duty. However, regardless of whether the test is objective or subjective may
rely on the specific case included.

Causation
With the goal for liability to result from a negligent act on or omission, it is important to
show not just that the damage was brought about by that carelessness, yet in addition that
there is a lawfully adequate association between the act and the carelessness.

Factual Causation

For a respondent to be held obligated, it must be demonstrated that the specific acts or
omissions were the reason for the misfortune or harm continued. In spite of the fact that the
idea sounds basic, the causation between one's break of obligation and the mischief that
outcomes to another can on occasion be entangled. The fundamental test is to ask whether the
damage would have happened 'but for', or without, the blamed party's breach for the
obligation owed to the harmed party. In Australia, the High Court has held that the 'but for'
test isn't the restrictive trial of causation since it can't address a circumstance where there is
more than one reason for harm. At the point when but for' test isn't fulfilled and the case is an
uncommon one, a common sense test ('Whether and Why' test) will be connected even more
correctly, on the off chance that a breaking party physically builds the danger of mischief to
another, at that point the breaking party can be sued to the estimation of damage that he
caused.

Legal Causation

Despite the fact that causation might be built up in the above circumstances, the law
frequently mediates and says that it will nevertheless not hold the the litigant at risk in light
of the fact that in the conditions the respondent isn't to be comprehended, in a lawful sense, as
having caused the misfortune. In the United States, this is known as the doctrine of proximate
cause. The most significant doctrine is that of ‘Novus actus interveniens’, which means 'new
intervening act' which may 'cut the chain of causation'.
 Causation conventionally comprises of two components that decide if a party can
be held at risk for the harms caused to another. These components are factual
causation and legal causation. Nonetheless, another component of causation that
is frequently neglected is that of ‘Novus actus interveniens’.

NOVUS ACTUS INTERVENIENS

Novus actus interveniens is Latin for "new intervening act". Novus actus interveniens is "an
independent event which, after the wrongdoer's act has been concluded either caused or
contributed to the consequence concerned". A Novus actus breaks the causal chain between
the initial wrongdoer's action and the risk that is credited to the person in question
accordingly thereof. A prerequisite for a commission or omission submitted after the
underlying transgressor's act to establish a Novus actus is that the secondary act was not
sensibly predictable. On the off chance that the ensuing occasion was reasonably foreseeable
at the time of the initial wrongful act, it isn't to be considered as a Novus actus fit for
constraining the risk to be ascribed on the initial transgressor.

A Novus actus isn't restricted to just factual or legal causation, and can intrude on the causal
chain at either point. In regard of factual causation, a Novus actus intrudes on the nexus
between the illegitimate act of the first wrongdoer and the results of his demonstration to
such a degree, that it liberates him of the risk of his activities. In any case, when evaluating
Novus actus in regard of legal causation, respect must be had to the parts of arrangement,
decency, sensibility and equity so as to decide if obligation for the underlying wrongful act
can even now be credited to the first wrongdoer, and whether the causal chain has been
broken. A Novus actus in this way upsets the "directness" part of the initial act and the
subjective trial of legal causation cannot be satisfied.

As a Novus actus is an "independent" mediating act, it very well may be occasioned by

anybody or something besides the initial wrongdoer. This general classification additionally
incorporates the harmed party him/herself, another outsider or even a act of God. In this way,
a harmed patient who strolls on a dangerous floor subsequent to having been harmed from
that point occasioning further medical procedure will have made his own Novus actus, or
where a storm makes further and more noteworthy harm to a property after it has been
harmed by a transgressor will likewise be seen as a Novus actus.

Novus actus is regularly used as a guard by initial wrongdoers who wish to demonstrate that
their obligation is restricted or non-existent and ought to be credited on another party. This
must be recognized from contributory negligence. On the off chance that a act or omission
happens before the episode that offers rise to the damage, at that point that is named
contributory negligence, for example, when a traveller in an motor vehicle neglects to wear a
safety belt, the individual is contributory negligent. While an autonomous demonstration that
happens after the harm causing episode is a Novus actus, for example, when a traveller is
hospitalized after a motor vehicle impact and supports further wounds in hospital.

When surveying claims in regard of dēlictus harms, it is essential to guarantee that there have
been no intervening acts that could have cut off the causal chain in regard of risk. Frequently
this is a viewpoint that is neglected or just settled at a lot later stage during suit. Accordingly,
it is basic that appropriate examinations are done so as to guarantee that every one of the facts
are before you when surveying an issue. A Novus actus interveniens hosts the impact of
restricting a party's obligation and in this manner might be a helpful tool when evaluating
harms claims.