The word tort
is derived from the Latin tortus, meaning twisted
It came to mean wrong
, and it is still so used in French: J
I am wrong.
English, the word ‘tort’ has a purely technical legal meaning – a legal wrong
for which the law provides a remedy. But the word ‘tort’ as used in law has
various definitions according to different writers. Law of tort is still an
unexplored charter or at least not a thoroughly explored one, even till date
especially in developing countries. The law imposes a duty to respect the legal
rights vested in the members of the society and the person making a breach of
that duty is said to have done the wrongful act. Tort is a breach of duty recognised under the law of tort.
Whether Tort Law has morality:
Tort Law started just from the morality of the society and has some moral
values as its underpinnings. In its most basic terms, the source of tort law is
to shield society from chaos and pandemonium by establishing a court in which
one individual can bring a claim against another, without resorting to private
revenge.Like the morals of society construes that no person should do
anything wrong with anyone and if he has done anything wrong, then he must be
punished, just to get the victim back to a decent position.
For eg. In Strict
liability principle, at large, usually there is not a mistake or fault, rather
it is mostly an inevitable accident, but it would be immoral if the person
suffered are left as such without providing them any relief.Tort law doesn’t
express morality at large nut has a specific structure that a moral account of
it must track.
Although Tort law has moral underpinnings, it cant be said that it is wholly
based on moral values. In modern day law of tort, it must be noted that the
wrongful act or a wrongful omission must be one recognized by law. If there is a
mere moral or social wrong, there cannot be a liability for the same.
example, if somebody fails to help a starving man or save a drowning child, it
is only a moral wrong and, therefore, no liability can arise for that unless it
can be proved that there was a legal duty to help the starving man or save the
drowning child. Another example pertinent where merely breach of moral duty
doesn’t held the person guilty would be of a women who falls ill and requests
her neighbour B to look after her since she is all alone.
B takes care of 'A'
and extends all types of help like giving food and medicines to her and making
her comfortable with his presence at the time of need. A recovered after
sometime. Once B fell ill, he requested A to help him during his illness but A
never acceded to B's request and B due to lack of proper care and help became
disabled. Here, it was A's moral duty to look after B but if he doesn’t take
care of the lady, he can’t be held liable.
Another situation where the morality aspect is bit sided is as follows:
Suppose A and B are driving negligently and rashly, but due to grace of God, A
passed the road safely without causing any harm to anyone but unfortunately B
smashed the car into another person C. Now according to modern law of tort ,
only B is liable because only has infringed the legal right of anyone (in this
case C), but if we look at this situation from a moral aspect both should be
held guilty because both were doing their work negligently.
Also it is said morally that, the one who have done the wrong deed must face the
consequence, but in master servant relationship, in the modern tort law, the
master of the servant faces the consequences of the deed done by his servant.
We can conclude with this observation that there may be certain moral wrongs,
which may cause damage to others but here law offers no legal remedy; and on the
contrary, there are certain legal wrongs which may not cause any loss or damage
to another person, but the law provides a legal remedy although there is mere a
violation of private legal right. And we can say that tort law is not solely
based on morality but is merely a concoction of moral and legal
- Evolution of Tort Law Owlcation - Education,
- R. K Bangia, The law of torts, including compensation under the Motor
Vehicles Act (Allahabad Law Agency) (1995)
- Andre Tunc, Tort Law and the Moral Law, 30 CAMBRIDGE L.J. 247 (1972).
- Jules L. Coleman, The Morality of Strict Tort Liaiblity, 18 WM. & MARY L.
- Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449
- Henry E. Smith, Modularity and Morality in the Law of Torts, 4 Journal
of Tort Law (2011).
- Percy Henry Winfield et al., Winfield and Jolowicz on Tort (Sweet
and Maxwell 19)