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Introduction:-
The word ‘tort’ is derived from the Latin tortus, meaning
‘twisted’. It therefore, includes that conduct which is not
straight or lawful, but, on the other hand, twisted and crooked.
The word tort is some what tantamount to the English term ‘wrong’.
But all wrongs are not torts. Salmond defines a tort as,
#A civil wrong
for which the 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 obligation.[1]
Another
definition of tort is by Fraser[2],
An infringement of a
right in rem of a private individual giving a right of
compensation at the suit of the injured party.
The classic definition of tort one ever had is that of Winfield;
#
Tortious
liability arises from a breach of a duty primarily fixed by law;
such duty is towards persons generally and its breach is redressable by an action for unliquidated
damages.
This branch of
law mainly consist various torts i.e. wrongful acts whereby one
person is liable for his acts when he violates the legal rights of
the other in some of the other way and is supposed to pay
damages[3], i.e. compensations to the aggrieved party. The person
committing a tort or wrong is called a tort-feasor or wrongdoer,
and his misdoing is a tortious act[4]. Let us take an e.g. Mr. A
(tort-feasor) defames B in a public place which injures the
reputation of B. Mr. A will have to compensate B for he has
committed the tort of ‘Defamation’.
Similarly if you enter into the premises of a person, you will be
held liable for ‘Trespass’ as law has conferred on every one the
right to enjoy his own property and if you interfere with others
property, you are answerable for that. Unlike Contract, no
scientific definition has been feasible which could mention the
specific elements which would constitute a tort hitherto. Simply
because, the wrongs included under tort are of diverse species,
and each of them have their own separate historical background of
origination[5]. Usually the injured party in a tort action is
entitled to claim ‘unliquidated’ damages (i.e. compensation that
has not been previously determined/specified or agreed between the
parties) and will be decided in a court by the judge based on
facts, circumstances and the injury suffered by the party who
approaches the court. Tort law is based largely on common sense
and the understanding prevalent between people in their everyday
interactions with each other. Some examples of such ‘civil wrongs’
or ‘torts’
are:
o Nuisance
o Negligence
o Trespass
o Defamation
All of these
need detailed explanation as the topics are very wide. These
concepts are not that relevant in this research paper. So what is
needed is to comprehend torts and discuss the important things
which should be noted while dealing with torts. Concepts such as
‘Civil Wrong’ and ‘Unliquidated Damages’ will be exhaustively
explained in the course of the research.
For the
perfect analysis of tort following points should be observed:
Ø Tort is a Civil Wrong different from other Civil Wrongs
Ø Tort must be distinguished from a Breach of Contract
Ø The Apt Remedy for Tort is an Action for Unliquidated Damages
Ø Tort is the Infringement of a Right in rem
Ø Tort is distinguished from Crime
§ Tort is a
Civil Wrong different from other Civil Wrong:
Tort may be defined as civil wrong which is different from other
civil wrongs. Although a tort is essentially a civil injury, all
civil injuries are not torts. Take for instance, Public nuisance
committed by a person is not a tort and an action for it has to be
taken by the attorney general. For e.g. if a person wrongfully
obstructs a public road, i.e. he causes inconvenience which
wouldn’t be otherwise caused, the govt. authorities are authorized
to take immediate actions against the wrongdoer. But say, if the
obstruction causes enough inconvenience to a particular
individual, causing extreme loss, be it financial or physical, the
aggrieved party can claim damages for the simple reason that he
has directly suffered from the wrongful act. Simply put, in the
first case the act done was a civil wrong but it doesn’t
constitute a tort, while the other one is a tort because in the
second case it is the party who is directly affected from the
wrongful act. But in the previous one, the wrongful act is
affecting the society in large.
Again,
breaches of statutory duties are not torts. There is a remedy for
this by the issuance of writ[6], which is
mandamus.
It cannot come under tort although it is a civil wrong. Under the
mandamus order, the person who fails to comply with the conditions
laid down in the statute will be compelled to do a certain act in
conformity with the provisions of the particular statute. Since
damages are not the appropriate remedy for such breaches, they are
not classed as torts. The classic examples are the relationship
between carrier and passenger and master and servant[7]. Other
examples are breach of trust, breach of contract etc. Tort,
negligence, assault, battery, libel, defamation would be a tort.
Breach of
contract may be wrong, but it's not a tort, so to speak. The idea
is that when two businesses work out a contract, and they both are
sophisticated and have legal representation, they should be able
to figure out what could go wrong and spell out in the contract
what the remedies should be if something goes wrong. If they fail
to do so, later, when something does go wrong, they are still
stuck with the contract if their losses are economic only. It was
Winfield’s view that tortuous duties exist by virtue of the law
itself and are not dependant upon the agreement or consent of the
persons subjected to them. I am under a duty not to assault you,
not to slander you, because law says. I am under such a duty and
not because I have agreed with you to undertake such a duty[8].
There can be some exceptions to this (false representations, for
e.g.), but that is the general doctrine. Failed expectations --
one side thought it was going to make a killing in a business deal
and it didn't -- is strictly a contract issue, which is a civil
wrong but doesn’t come within the pigeon-hole[9] of torts.
Again tort is
the infringement of a right in rem[10] as distinguished from a
right in personam[11]. As Pollock puts it,
a tort is the
violation of that general duty which all members of a civilized
community owe towards their neighbours not to do them harm without
lawful cause or excuse.
In order to
understand when somebody who commits a civil wrong will commit a
tort, it is convenient to distinguish between cases when somebody
commits a civil wrong by breaching a judge made duty owed to
another and cases where somebody commits a civil wrong by
breaching a statutory duty owed to another.[12]
When some
wrongful acts have been done, it has got to be seen first whether
it is a civil or a criminal wrong. If the wrong is found to be a
civil one, we have to see whether it exclusively belongs to any
open category of civil wrongs like breach of contract and breach
of trust. If we find that it is not exclusively any of the other
civil wrong, then we can say it is a tort.[13]
§ Tort must be
distinguished from Contract:
The differences between tort and contract are elaborately
discussed in chapter with the help of authorities. But for a
general idea the researcher will shortly write the major
differences
Tort &
Contract
(a) A tort is inflicted without any consent, contract is founded
upon consent
(b) In tort no privity is needed, privity is necessarily implied
in contract
(c) In tort motive is taken into consideration, motive is
immaterial in contract.
(d) Tort is a violation in rem, whereas a contract is an
infringement of a right in personam
(e) Damges are unliquidated, and damages are liquidated in
contract.
§ Unliquidated
Damages:
The aim of tort damages is to restore the claimant, in so far as
money can do so, in his or her pre-incident position, and this
purpose underlies the assessment of damages. Tort compensates both
for tangible losses and for factors which are enormously difficult
to quantify, such as loss of amenity and pain and suffering,
nervous shock and other intangible losses. Tort damages are
therefore said to be unliquidated. The claimant is not claiming a
fixed amount of compensation.[14]
‘Damages’ is
the most important remedy for a tort. It is generally the monetary
satisfaction which can be given to the injured party. It is
impossible for someone to undo the harm which some body has
suffered. So what can be done is that in such a case is to
identify the amount of money which is equivalent to the harm
caused. For instance, if A negligently injures B while driving,
then it is impossible to undo the harm suffered. Therefore A is
asked to compensate B in moneys worth. Unlike, in contract, in the
case of torts damages are unliquidated. This can be the sole
difference between tort and contract. Previously determined
damages are known as liquidated damages. In contract, parties are
known to each other. They at the time of entering into the
contract make a stipulation as regards to the compensation payable
by the parties in case of a breach[15]. So here the damages are
pre-determined, i.e. liquidated. But in torts the parties are
unknown to each other before the tort is committed, and so it
makes quite difficult to visualize beforehand the loss which can
be suffered by the aggrieved party. They are decided by the court
of law after the mishap took place. Such damages are unliquidated.
§ Infringement
of Right in rem
Tort is the infringement of right in rem (right available against
the whole world) as distinguished from right in personam (right
available against some determinate person or body).[16] In the
words of Pollock;
‘A tort is the
violation of that general duty which all members of a civilized
community owe towards their neighbours not to do them harm without
lawful cause or excuse’.[17]
To sum up, for
society to co-exist peacefully, each one of us must fulfill some
duties towards our fellow beings. Duties to respect people’s
private spaces, not to do things that unfairly disturb others, to
be careful and diligent when we deal with fellow beings etc. Just
as we have such duties, others have the right to expect us to
fulfill these duties. Complementarily, others also have duties
towards us and we and we have the right to expect them to fulfill
these duties. Thus all people are interlinked by a labyrinth of
rights and duties towards each other, creating a world of rights
and duties.
§ Tort is
distinguished from Crime:
A common definition of torts is that they are redressable civil
wrongs, i.e. wrongs for which the injured party may claim remedies
in the form of compensations from the party who has injured him.
Civil wrongs mean those wrong actions which are not recognized by
the State as being criminal wrongs.
Criminal
wrongs are more serious and the State itself takes actions against
the criminal to protect the public interest. Civil wrongs are
private rights, criminal wrongs are wrongs against the public in
large. Like if someone fails to cut the branches of a growing tree
in his garden and the trees falls on the car of his neighbours and
damage it, it is a civil wrong because it does not concern the
society. But if A murders B, then B is the one who is getting
affected. But A is a danger to the whole society. Hence the latter
one is criminal wrong. However it must be noted that some times
criminal and civil wrongs overlaps to each other. For instance,
careless driving which results in injury to a person may qualify
as a tort and may also be an offence prohibited under the IPC. So
in such situations, the distinction between the two is slightly
blurred.
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[1] This is the definition given by Salmond himself (see 7th Ed.).
The Editor of the 15th edition of Salmond’s Law of Torts has
modified the defiiniton by qualifying the word action by the
phrase common law, and damages by the term unliquidated (See 15th
Ed., p.15), cited in Durga Das Basu, The Law of Torts 12th
Edition, 5, Kamala Law House, 2006, Calcutta
[2] Ibid.
[3] ‘Damages’ should not be confused with ‘Damage’ as both are
different. ‘Damage’ is the harm caused to somebody, while
‘Damages’ is the compensation one has to give to the injured party
[4] See Ratanlal and Dhirajlal, The Law of Torts, 23rd Edition,
5, Wadhwa and Co., 1999, Nagpur
[5] See Bangia, R K, Law of Torts, Fourteenth Edition, 7,
Allahabad Law Agency, 1999, Haryana
[6] Under Art. 32 and Art. 226, we can file a writ petition in SC
and HC respectively, incase our ‘FRs’ have been violated. However,
the latter also issues such writs, even when an ordinary legal
right has been violated.
[7] Bank of Nova Scotia v. Hellenic Mutual War Risks Assn., (1990)
1 QB 818
[8] W.V.H. Rogers, Winfield and Jolowicz on Tort, 16th Edition,
Sweet and Maxwell, 2002, London at p. 5
[9] Pigeonhole is a theory propounded by Salmond, an authority in
the field of tort law. Salmond believes that the specific torts
are like pigeon-holes and to prove your case one must prove that
the wrong committed against him falls within one of the
pigeonholes. This is, understandably, called the pigeon hole
theory.
[10] In Rem is a right available against the whole world.
[11] In Personam is a right available only against some
determinate person or body.
[12] Nicholas J McBride, Tort Law, 5, Pearson Education, 2003,
New Delhi
[13] See Bangia, R K, Law of Torts, Fourteenth Edition, 4-5,
Allahabad Law Agency, 1999, Haryana
[14] Vivienne, Harphood, Modern Tort Law, 6th Edition, 4,
Cavendish Publishing, 2005, UK
[15]See Bangia, R K, Law of Torts, Fourteenth Edition, 10,
Allahabad Law Agency, 1999, Haryana
[16] Durga Das Basu, The Law of Torts 12th Edition, 5, Kamala
Law House, 2006, Calcutta
[17] Ibid.
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author can be reached at: ashish_themiracle@legalserviceindia.com /
