Various Definitions of The Term Tort And Comment on Any One Better Known To You
The word Tort is derived from the Latin term Tortum which means “twisted”. The
term is French equivalent of the English word wrong and the Roman law term delict.
It implies a conduct which is twisted or wrong.
Law of Torts is a body of
obligations, and remedies that is applied by courts in civil
proceedings to provide relief for persons who have suffered harm from the wrongful
acts of others.
The person who sustains injury or suffers pecuniary damage as the result of
tortuous conduct is known as the plaintiff
(injured party), and the person who is responsible
for inflicting the injury and incurs liability for the damage is known as the defendant
or tort feasor.
A tort, as per English common law, is a civil wrong that causes a claimant to
suffer loss or harm resulting in legal liability for the person who commits the
The three essential characteristics of Tort are -
Wrongful act or inaction
The various definitions of the Law of torts are given as under-
Section 2(m)of Limitation Act, 1963: "Tort means a civil wrong which is
not exclusively a breach of contract or breach of trust."
Sir John Salmond’s Definition-Tort is a civil wrong for which remedy is
a common law action for unliquidated damages, and which is not exclusively the
breach of contract, or the breach of trust, or other merely equitable
Prof. P.H. Winfield’s Definition-Tortious liability arises from the breach of
duty primarily fixed by law. This duty is towards persons generally and it’s
breach is repressible by an action for an unliquidated damages.
Fraser’s Definition-Tort is an infringement of a right in rem (right in
general) of a private individual giving a right of compensation at the suit of
the injured party.
Comment on Salmond’s Definition of TortSir John Salmond: "Tort as a civil wrong for which the remedy is common law
action for unliquidated damages and which is not exclusively the breach of
contract or the breach of trust or other merely equitable obligation."
Thus, various elements of Salmonds definition of Tort are as under-
1. Tort is a civil wrong- To start with Salmond defines Tort as wrong,
which is civil in nature.A ‘Wrong’can be civil or criminal or both. As per
Salmond, tort belongs to the category of civil wrongs. In the case of a civil
wrong, a civil proceeding is instituted by the injured party or plaintiff
against the wrongdoer or tort feasor or defendant. The injured party is
compensated by the defendant for the injury caused to him/her by the latter.
This is unlike a criminal wrong, wherein the State brings criminal proceedings
against the accused, and the remedy is punishment and not compensation, barring
certain cases where the courts may impose fine.
2.Tort is a civil wrong but not breach of contract or breach of trust-What
Salmond is essentially stating that only when the wrong does not belong to any
other category of the wrong that is, breach of contract or trust, it is tort and
if the wrong is breach of contract or trust, it is not a tort. Tort is a civil
wrong but all civil wrongs are not torts.
Examples of Tort as a Civil Wrong and Civil Wrong which is not a Tort:In 1984 Union Carbide Plant located in Bhopal, Madhya Pradesh, leaked 40 tons of
a highly toxic gas known as Methyl Iso-cyanate (MIC) killing thousands of people
the very first day of the tragic event. It cost several thousands lives and led
to long term medical effects such as eye problems, respiratory difficulties,
immune and neurological disorders, cardiac failure's, and birth defects among
children born to affected women. The people who suffered as a result of gas leak
had no contract with the Company Union Carbide, but yet Union Carbide was held
liable under tort. Thus, this is a case of Tort as civil wrong.
An employee and employer have contractual obligation towards each other. An
employee has to discharge his functions and duties effectively and employer has
to pay the employee an agreed sum of money for his role. Hence, the right to
move court is exclusively within the parties to the contract. Thus, in case of
breach of contract by an employee or employer would constitute a civil
wrong which is not a tort.
3.Remedy of tort is Unliquidated damages- Unlike breach of contract or
breach of trust, where the damages may be liquidated or previously determined,
in torts the compensation has not been determined previously or agreed by the
parties but it is left to the direction of the court.
Salmond’s definition is appropriate but not perfect and suffers from certain
shortcomings. To say that a tort is a civil wrong is a simplistic conclusion
when “civil wrong” itself require explanation. Moreover, an act may involves two
or more civil wrongs, one of which may be a tort and the other breach of civil
wrong say, breach of contract. In a case where the act results in both civil as
well as criminal wrong then both the civil and criminal remedies may
concurrently be available. What about an intentional tort such as assault,
battery, trespass- any deliberate
interference with legally recognized interest,
such as the rights to bodily integrity, emotional tranquility, dominion over property,
is it civil wrong or crime?
Moreover, the remedy may be unliquidated damages but that is not the only
remedy. The other remedies are self-help, injunction or restitution of property.
To conclude, the definition given by Salmond is, therefore, limited. It is in
tune with his pigeon hole theory that any 'harm' in order to constitute legal
injury must fit into pre-determined 'pigeon holes’. The torts, according to
Salmond, have been labelled and the wrong committed must fall into any of these
labelled or within one of the pigeonholes. There is no general principle of
liability, no law of tort, but there is law of torts. This is in direct contrast
with Winfield's theory of all civil harms being actionable, multiple injuries
lead to multiple actions.
[Sample Question LLb Ist Semester – Paper-Law of Torts]
[writer’s note- The question has 2 parts- Through the various definitions
explain the term tort; Comment on any one definition]
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