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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 tortuous act.

The three essential characteristics of Tort are -

Wrongful act or inaction
Legal Damage
Legal remedy

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 obligation.

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 Tort

Sir 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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