nature and definition of torts

Abstract

While getting off from the train someone pushes you, what would you do? Someone forces you not to vote at the elections, how will you redress this? A man enters your yard without your permission, what will be your action? Your neighbour plays loud music all the day during your exam days, what will be your course of action?

Well, the circumstances given above fall in the ambit of Law of Torts. Tort refers to the civil wrong and remedy for which is unliquidated damages. Its origin is linked with the establishment of British courts in India.

Introduction

Tort is a French term derived from Latin word “tortum” which means crooked or twisted. Tort is equivalent to the English word “wrong”. Tort is an uncodified law that is it is a law not enacted by the Indian parliament. Law is bifurcated into Civil and Criminal. Law of Torts belongs to the Civil branch of law. Tort simply means a civil wrong. It covers the wrongful acts that result in infringement of legal rights of a person. An individual who commits tort is referred as Tortfeasor. The main aim of the law of torts is to compensate the victim.

Sec 2(m) of Limitation Act,1963 defines tort as “tort means a civil wrong which is not exclusively a breach of contract or breach of trust”.

The first reported case where the court used the word ‘tort’ is an old (1597) English case, Boulton v. Hardy (1597, Cro. Eliz. 547).[1]

Derivation of Tort

The origin of the Law of Torts can be traced to Roman precept alteriumnon- laedere The maxim means “not to injure another” i.e., not to hurt anyone by deeds or words. This maxim is similar to honesty viverewhich means “to live honourably” and suum clique tribuerewhich is explained as to render to every man that belongs to him or it is a general expression to provide justice to each person. All these three maxims can be attributed for the development of Law of Torts.[2]

The law of torts as administered in India is based on English law as found suitable to Indian conditions and modified by the acts of Indian legislature.[3] In the presidency towns of Calcutta, Bombay and Madras, Mayor’s court were the first British established courts. The English Common Law and the statute were brought in by the charters that established these courts. In the absence of codified laws Indian courts apply the rule of justice, equity and good conscience.

Definition of Tort by various jurists:

John Salmond

“Tort is a civil wrong for which the 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.”[4]

1). Tort is a civil wrong- Wrong can be civil or criminal but as per the definition of Sir Salmond wrong is considered to be civil for the purpose of tort. The plaintiff or the injured person whose legal right is infringed brings in civil proceedings against the tortfeasor. The defendant has to compensate the injured person.

2). Remedy is common law action for unliquidated damages- When the right of a person is violated the common law action is called upon. The defendant has to compensate the defendant in the form of unliquidated damages. As there is no contract there is no case of predetermined damages. The term unliquidated damages mean the compensation is decided by the court at its own discretion based on the circumstances and facts of the case.

3). Different from Breach of Contract or Breach of Trust: There is said to be a breach of contract when one of the parties to the contract fails to perform its duty or obligation. In case of tort the parties do not enter into any contract. There is also no breach of trust in case of tort.

Sir Salmond’s definition is appropriate but not perfect and suffers from certain drawbacks. To say that a tort is a civil wrong is a simplistic conclusion when a civil wrong itself requires an explanation. Moreover, an act may involve two or more civil wrongs, one of which may be a tort and the other breach of civil wrong say, breach of contract. In 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 tranquillity, 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.[5]

Richard Dien Winfield

“Tortious liability emerges from the breach of a duty primarily fixed by the law, this duty is towards the other people generally and its breach is redressable by an action for unliquidated damages.”[6]

1). Breach of Duty Fixed by Law – Being a member of society a man is bound to observe certain rules made by the society. The basis of majority of rules is Dharm (Generally in English religion), for example to give food to a man who is starving, to save a man who is drowning in a river, to help such persons is our social and religious duty. But we are not bound by law to observe these duties. On the other hand, tortious liability arises from breach of a duty fixed by law. In cases of breach of such duties the aggrieved party can initiate legal proceeding in the court of law. The court may award damages to the plaintiff but for breach of social and religious duties one can’t be compelled to give damages to any person. Tortious liability does not arise from contract or consent between parties.

2). Duty is towards persons generally– In tort duty is towards persons generally and not against some particular persons, law requires every person that he should not publish defamatory statements against any person. In other words, some rights are rights in rem that is which are available against the whole world and some rights are rights in personam that is which are available against the particular person.

3). Breach of duty is redressable by action for unliquidated damages– In tort the plaintiff who suffers any harm from the wrongful acts of the defendants, can bring an action in the court for unliquidated damages because the damage does not arise out of a contract. In case of breach of a contract the defendant is liable for a definite amount of damages. The amount of damages which an aggrieved person is entitled in tort will be determined by the court.

 Like others the definitions of Dr Winfield definition is also not a satisfactory and perfect and suffers from many defects. Firstly, according to Dr Winfield, tortious liability arises from breach of duty primarily fixed by law. This element no doubt helps in understanding contractual liability and tortious liability but in modern times there are some cases where consent of the defendant may be necessary for arising of tortious liability that is they arise from breach of contractual liability. For example, liability of the occupier of premises to visitors, or liability of a driver of a car with passengers. In both these cases tortious liability is based on the basis of consent that is permission to visitors to enter his premises or driver’s consent to allow the passenger in his car. Secondly, according to Dr. Winfield in tort the duty is towards people generally and not towards any particular person, the phrase duty to persons generally is very vague. The use of this expression is criticized on the ground that it does not make it clear who are those people generally are, or against arise out of a special relationship and are towards particular person for example passenger and carriers, doctor and patient, guardian and ward trustee and beneficiary etc. Dr Winfield although accepts that his definition is not free from defects but claim the element of generality is more important and it applies to most of the cases. Despite the above criticism it can be said the Dr. Winfield’s definition is sufficiently workable definition and is better than the other definition.

Nature of Subject: The Law of Tort or the Law of Torts

Question is generally asked in the form, “Is there a law of tort or only a law of torts?” There are two competing theories in this regard. According to one theory the number of torts is specific or definite beyond which liability in tort does not arise. In other words, it is a law of torts. According to other theory all injurious act which cause harm to other persons are torts, unless there is any legal justification for it. In other words, it is of law of tort. First view Sir John Salmond is the propounder of this theory. According to Salmond in the beginning there was no general law of tort in England, but only law of torts that is action could be brought by the plaintiff against the defendant for certain specific acts and omissions. If the plaintiff could not bring his case under the any of legal titles, then it was presumed that the plaintiff had no legal complaint against the defendant. Accordingly in his famous book Salmond said: “just as the criminal law consists of a body of rules establishing specific offences, so, the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other there is any general principle of liability”. Whether I am prosecuted for an alleged offence, or sued for an alleged tort, it is for my adversary to prove that the case Falls within some specific and establish rule of liability and not for me to defend myself by proving that it is within some specific and established rule of justification for excuse. Thus, according to Salmond there was no English law of tort but it was merely an English law of torts that is list of acts and omission which in certain conditions were actionable. It is because of this difference that’s element has title his book as law of torts and not law of tort. On the other hand, Dr Winfield has titled his book as law of tort. Salmond theory has been criticized by Dr. Winfield who called Salmond’s theory as the doctrine of pigeon hole that is certain specific heads of tort outside which there is no remedy.[7]

Winfield is the chief supporter of this theory. He says, all injuries done to another person are torts, unless there is some justification recognized by law. Thus, according to this theory tort consists not merely of those torts which have acquired specific names but also included the wider principle that all unjustifiable harm is tortuous. This enables the courts to create new torts. Winfield while supporting this theory comes to the conclusion that law of tort is growing and from time-to-time courts have created new torts.

Supporters of This Theory: The theory given by Winfield has been supported by many eminent Judges both ancient and modern. Following are some examples: –

  • HOLT, C.J. clearly favoured Winfield’s theory, by recognizing the principle of ubi jus ibi remedium. He said that, if man will multiply injuries, actions must be multiplied too; for every man who is injured ought to have recompense [Ref. case- Ashby v. White (1703) 2 Ld. Raym. 938].[8]
  • PRATT, C.J. said that, torts are infinitely various, not limited or confined [Ref. case- Chapman v. Pickersgill (1762)2 Wils 145].[9]
  • In 1893, BOWEN, L.J., expressed an opinion that at common law there was a cause of action, whenever one person did damage to another wilfully or intentionally without a just cause or excuse.
  • LORD MACMILLAN observed that, the common law is not proved powerless to attach new liabilities and create new duties where experience has proved that it is desirable [Ref.- Donoghue v. Stevenson (1932) AC 595].[10]

Creation of New Torts: This theory is also supported by the creation of new torts by courts of law. For example: –

  • The tort of inducement to a wife to leave her husband in Winsmore v. Greenbank (1745) Willes 577 (581)[11].
  • Tort of deceit in its present form had its origin in Pasley v. Freeman (1789) 3 TR 51[12]
  • Tort of inducement of breach of contract had its origin in Lumley v. Gye (1853) 2 E & B 216.[13]
  • The tort of strict liability had its origin in Rylands v. Fletcher (1868) LR 3 HL 330.[14]
  • The tort of intimidation in Rookes v. Barnard (1964) 1 All ER 367[15]

From the above-mentioned cases it is clear that the law of tort is steadily expanding and that the idea of its being in a set of pigeon-holes seems to be untenable.

Winfield’s Theory and Indian Judiciary: Indian judiciary has also shown a favour to Winfield’s theory. In the words of Justice BHAGWATI, C.J., we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England, we are certainly prepared to receive light from whatever source it comes but we have to build our own Jurisprudence. In the same case the Supreme Court of India established the concept of ABSOLUTE LIABILITY in place of strict liability [Ref. case- M.C. Mehta v. Union of India, AIR 1987 SC 1086[16]].[17]

Ingredients of the Law of Torts.

  1. A wrongful act by defendant: To determine liability in tort it must be proved that the act done by the defendant was a wrongful act. The wrongful act is an act which is done without any lawful justification. The act of the defendant becomes wrongful act only when there is violation of legal right of another. If the act complained of does not violate legal right of another person, it is not a tort. Violation of moral, social and religious duty does not come under the category of torts. Thus, in tort the plaintiff has to prove that his legal rights have been violated by the act of the defendant. Tortious liability thus arises by both – an act or an admission to do an act example by doing an act which is prohibited -or violating another’s legal right or by violating one’s own duties. Thus, where legal rights of another is violated, there is, violation of legal duty by the wrongdoers. In both the situations his act constitutes a tort.

Rights may be divided into two kinds public rights and private rights. Public rights are those rights which belong to the members of the state in general. Every person of the public has a right to walk on the road, to take water from a river and so on. When a public right is violated no action in tort shall be taken unless the plaintiff suffers a special and substantial damage in addition to the damage suffered by him in common to the public in general.

  • Legal remedy– A tort is a civil wrong for which the remedy is an action for unliquidated damages. There are other remedies also such as specific restitution of a child and in certain cases injunction in addition to damages. But it is an action for unliquidated damages which is an essential characteristic of remedy for a tort. It is mainly the right to damages which brings such wrongful acts within the category of torts. There are a number of unauthorised acts for which only a criminal prosecution can be instituted. But they are not a tort. Thus, the law of torts is said to be a development of the maxim Ubi jus ibi remedium there is no wrong without a remedy. This maxim means that where there is a right there is a remedy that is to say whenever a right is violated, the person whose right has been infringed has a remedy against the person who has violated it. This principle has been established for the first time in the leading case of Ashby vs white. In this case the plaintiff was a voter in parliamentary elections. The defendant who was the returning officer wrongfully refused to accept his vote in spite of this the candidate had won the election. It was held that the defendant was liable to pay damages to plaintiff as they had violated his legal right to vote whether he has suffered any loss or not. Holt C.J., allowed the action on the ground that violation of the plaintiff’s statutory right was an injury, for which he must have a remedy and was actionable without proof of pecuniary damage. His observations will make the things clear. He said: “if the plaintiff has a right, he must have as of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it and indeed it is vain to imagine a right without a remedy for want of right and want of remedy is reciprocal”. It should however be noted that the maxim does not mean that there is legal remedy for every moral or political wrong. There is no remedy for a solemn promise made without consideration. ‘A’ request ‘B’ to advance to him a loan of Rs. 1000 which the former needed for his marriage expenses. ‘B’ agrees to advance the loan but fails. ‘A’ has no remedy. There is no remedy for oppressive legislation.
  • Legal damage to the plaintiff– Damage is the direct result of the defendant’s wrongful act. But there is a distinction between damage and damages. Damage means the harm done to a person by the wrongful act of the defendant’s act while compensation which is given to the plaintiff is known as damages. The main object of the law of torts is to protect from harm being caused to the property, body and prestige of a person. In law of torts thus, an action for damages lies for infringement of individual’s legal rights. But it is not every damage that is the damages in the eyes of law. In an action in tort the plaintiff has to prove that he has suffered some legal damage from the defendant’s wrongful act. There may be wrong caused to a person but if actual legal damage is not caused to him no action in torts will be maintainable. Legal damage is neither identical to actionable damage nor it is necessarily pecuniary.[18]

Law of Torts in India

In India the term tort has been in existence since pre-independence era. The Sanskrit word Jimha, which means crooked was used in ancient Hindu law text in the sense of ‘tortious of fraudulent conduct.[19] Under the Hindu law and the Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is mainly the English law of torts which itself is based on the principles of the common law of England. This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India.

The expression justice, equity and good conscience was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian society and circumstances. The Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application. On this the Privy Council has observed that the ability of the common law to adapt itself to the differing circumstances of the countries where it has taken roots is not a weakness but one of its strengths. Further, in applying the English law on a particular point, the Indian courts are not restricted to common law. If the new rules of English statute law replacing or modifying the common law are more in consonance with justice, equity and good conscience, it is open to the courts in India to reject the outmoded rules of common law and to apply the new rules. For example, the principles of English statute, the Law Reform (Contributory Negligence) Act, 1945, have been applied in India although there is still no corresponding Act enacted by Parliament in India.

The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union of India , Justice Bhagwati said, we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.

It has also been held that section 9 of The Code of Civil Procedure, which enables the civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as principles of justice, equity and good conscience. Thus, the court can draw upon its inherent powers under section 9 for developing this field of liability.

In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat, Sahaj, J., observed: truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refinedness the liberal approach to tortious liability by court would be conducive.[20]

Characteristics of Law of Torts

  1. Civil Wrong- Tort is a civil wrong as opposed to a crime on the one hand and a breach of contract or breach of trust on the other. It may be noted that breach of contract and breach of trust are civil wrongs but they are not torts, inasmuch as the remedies of ordered for such breaches are governed by statutes whereas the remedy for a tort of their origin to common law.
  2. Infringement of a right in rem– Second a tort is an infringement of a right in rem and not the right in personam (right vested in some determinate person either personally or as a member of the community) and available against the world at large that is against everybody. Thus, one’s right not to be defamed or assaulted are rights available against the whole world.
  3. Right fixed by law- In law of torts the right that is infringed of the plaintiff is fixed by the law. Right fixed by law is independent of the consent of the parties.
  4. Common law action- The remedy available in respect of the violation of such a right should be a common law action that is suit filed under the English common law of course there is nothing like common law in India in England there are numerous common law action, of which actions for torts are a part. Such actions would also be actionable in India that is suit can be filed for such wrongs in civil Courts in India.
  5. Remedy- Lastly the remedy should be by way of damages. suit for unliquidated damages is a good test of tortious liability. However, it is not the only remedy and a suit for injunction suit for specific restitution of land or chattels and at times even self-help as in ejecting a trespasser are other remedies available in case of torts.

Difference between Tort and Crime

  1. In tort there is an infringement of private or civil rights of individuals whereas in a crime there is a breach of public rights which affect the whole community.
  2. In tort the action against the wrongdoer is initiated in a civil court whereas in a crime the legal proceedings are initiated in a criminal court.
  3. In tort the wrongdoer has to compensate to the injured whereas in crime the criminal is punished by the state in the interest of society.
  4. In tort the suit for damages is filed in the court against the wrong towards by the plaintiff himself whereas in crime proceedings are initiated against the accused by the state.
  5. In tort the defendant is relieved of liability by paying compensation to the plaintiff whereas in crime the guilty person is punished.
  6. In tort the main aim is to recompense the plaintiff for the loss suffered by him from the wrongful act of the defendant. But in crime the main task is to teach him a lesson by punishing the accused so that he may not repeat it in future as well as it becomes an example for others.

Difference between Tort and Breach of Contract

  1. In tort there is a breach of duty which is primarily fixed by law whereas in contract there is breach of duty which is fixed by the consent of parties. For example, it is my duty not to assault or defame any person.
  2. In tort there is a violation of right in right in rem that is right vested in some determinant person and available against the whole world whereas a breach of contract is an infringement of a right in personam that is right available only to a definite person and in which the society has no concern.
  3. In tort the motive for breach of duty is in material. But in case of breach of contract it is often taken into consideration. Thus, if the defendant does an act with good motive or in good faith to save a person from being harmed then he will not be liable to the plaintiff. But in a contract the defendant cannot take the defence of good faith or good motive and he has to pay damages to the plaintiff in every case.
  4. In both tort and contract the general remedy is an action for damages. But the purpose for which damages are given is different. In contract the damages are compensatory and punitive or exemplary. In tort exemplary damages are awarded to punish the defendant but in contract the nature of damages is compensatory and it is generally fixed.
  5. In tort the damages are unliquidated and are determined by the court on the facts and circumstances of the case. But in contract the damages are fixed according to the terms and conditions of contract.

Conclusion

The law of torts in India is not to be termed as unnecessary rather the scope of torts must be expanded. Usually in India people overlook the fact that their legal rights are being infringed due to high costs to be incurred in the civil courts for proceedings. Hence, court fees must be kept minimal so that there is no infringement of legal rights of any person. The law of torts must be applied in India on the basis of facts and circumstances of the cases. Emphasis must be placed on codifying the act for ease and better understanding. There must be amendments to the existing tort law depending on the discovery of acts that fall under the ambit of the various definitions of jurists and precedents of tort.

References

  • Boulton v. Hardy (1597, Cro. Eliz. 547).
  • Simran Sabharwal, An Insight into Law of Torts in India, Ipleaders, Oct 29,2018.
  • Setalvad: The common law of India, 110. Vidya Devi v. M.P. State Road Transport Corporation, AIR 1975 MP 89.
  • Salmond and Heuston, Law of Torts, 20th edition, 1993.
  • E Pradhan, Various definitions of the term tort and comment on any one better known to you, Legal Service India, E-Journal.
  • Winfield, Law of Tort, 11th Edition
  • J.N. Pandey, Law of Torts with Consumer Protection Act and Motor Vehicles Act, Central Law Publications.
  • Ashby v. White (1703) 2 Ld. Raym. 938.
  • Chapman v. Pickersgill (1762)2 Wils 145.
  • Donoghue v. Stevenson (1932) AC 595.
  • Winsmore v. Greenbank (1745) Willes 577 (581).
  • Pasley v. Freeman (1789) 3 TR 51.
  • Lumley v. Gye (1853) 2 E & B 216.
  • Rylands v. Fletcher (1868) LR 3 HL 330.
  • Rookes v. Barnard (1964) 1 All ER 367.
  • M.C. Mehta v. Union of India, AIR 1987 SC 1086.
  • Rajibhassan, Is it Law of Tort or Law of Torts, Legal Service India.
  • Ms. Bhuvana Veeraragavan, Tort in India-Tortious Liability, Legal Service India.
  • Lakshmi Somanathan, Nature and Scope of Law of Torts in India, Legal Service India

[1] Boulton v. Hardy (1597, Cro. Eliz. 547).

[2] Simran Sabharwal, An Insight into Law of Torts in India, Ipleaders, Oct 29,2018.

[3] Setalvad: The common law of India, 110. Vidya Devi v. M.P. State Road Transport Corporation, AIR 1975 MP 89.

[4] Salmond and Heuston, Law of Torts, 20th edition, 1993.

[5] E Pradhan, Various definitions of the term tort and comment on any one better known to you, Legal Service India, E-Journal.

[6] Winfield, Law of Tort, 11th Edition.

[7] J.N. Pandey, Law of Torts with Consumer Protection Act and Motor Vehicles Act, Central Law Publications.

[8] Ashby v. White (1703) 2 Ld. Raym. 938.

[9] Chapman v. Pickersgill (1762)2 Wils 145.

[10] Donoghue v. Stevenson (1932) AC 595.

[11] Winsmore v. Greenbank (1745) Willes 577 (581).

[12] Pasley v. Freeman (1789) 3 TR 51.

[13] Lumley v. Gye (1853) 2 E & B 216.

[14] Rylands v. Fletcher (1868) LR 3 HL 330.

[15] Rookes v. Barnard (1964) 1 All ER 367.

[16] M.C. Mehta v. Union of India, AIR 1987 SC 1086.

[17] Rajibhassan, Is it Law of Tort or Law of Torts, Legal Service India.

[18] Supra note 6.

[19] Ms. Bhuvana Veeraragavan, Tort in India-Tortious Liability, Legal Service India.

[20] Lakshmi Somanathan, Nature and Scope of Law of Torts in India, Legal Service India.

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