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Comprehensive Analysis of Tort

Ashish Goel - NUJS, First Semester
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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.
[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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