Law and You > Law of Tort > Concept of Tort and Tort Law
The word “Tort” is of a French origin which has been further derived from the Latin word “Tortum” meaning “to twist” and implies conduct which is tortious4or twisted. It is a species of civil injury or wrong. A tort is a wrongful act or an infringement of a right (other than under contract) leading to legal liability and for which civil courts award compensation. Section 2 of Limitation Act 163 defines it as ‘a civil wrong which is not exclusively the breach of contract or breach of trust’. For example, to stop or obstruct a person to perform his legal right is a tort. (Case Ashby v. White), In this article, we shall discuss the concept of tort and law of tort,
Defining Tort:
According to Salmond, “A 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 a contract, or the breach of a trust, or the breach of other merely equitable obligation”. – Salmond.
According to Faeser, “A tort is an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party”.
According to Winfieldd, “Tortious liability arises from the breach of duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”.–Winfield.
According to Pollock “A tort is an act or omission (not merely the breach of a duty arising out of personal relations, or undertaken by a contract which is related to harm suffered by a determinate person, giving rise to a civil remedy which is not an action of contract”
According to Peter Brick “The breach of a legal duty which affects the interests of an individual to a degree which the law regards as sufficient to allow that individual to complain on his or her own account rather than as a representative of society as a whole”.
According to Burdick “An act or omission which unlawfully violates a person’s right created by law and for which the appropriate remedy is a common law action for damages by the injured person”
According to Keeton “Tort law is a body of law concerned with granting or denying claims of individuals or impersonal legal entities against each other for the award of damages or other forms of legal reliefs”.
According to Clerk & Lindsell, “A tort may be described as wrong independent of contract, for which the appropriate remedy is common law action”.
According to Sec 2 (m) of the Limitation Act 1963 defines “Tort means a civil wrong which is not exclusively a breach of contract or trust.”
Foundations of Tortious Liability:
“Growing Tree” Theory:
This theory is supported by Winfield, Pollock and other eminent jurists. According to this theory, all injuries done to another person are torts unless there is justifications recognised by law. The underlying principle here is that all unjustifiable harms are torts. It may be assault, battery, deceit, slander, negligence, or, it may not even have a name at all.
When a tort is specific, it is narrowed down to a particular wrong. But when it is not specific, and considered at a wider level that all harms without legal justifications are torts, then, it is in a wider sense.
This approach allows the field of tort to expand to accommodate newer torts as the society develops. It is akin to a ‘growing tree’ with several branches, each representing an existing or known tort and at the same time with new branches in the process of growing which can represent a new tort under development. This analogy reflects that attitude of courts when they attempt to create new torts depending on the type of harm and need. Thus tort is like a ‘growing tree’
Pigeon Hole Theory:
This theory was proposed by Salmond and Sir Frederick Pollock supported it. It proposes that the law of tort can be considered as a neat set of pigeon holes, each containing a specific tort. If the defendant’s act does not fit in any of these pigeon holes, he has not committed any tort. This theory is approved in case Allen v. Flood.
Critics said that if this theory is accepted then the categories of liability in torts would be closed. Due to which the Courts would not be allowed to recognize any new torts. In that case, there would be no justice to the plaintiff only on the ground that there is no similar case in the past which is recognized as a tort. Court also observed that torts are infinitely various and not limited or confined.
Both the above theories are correct in the sense that they are from different points of view. While, one seems to be a broader perspective the other signifies a narrower approach. After all, tort has grown over the years giving rise to new areas of torts such as strict liability, absolute liability and so on. In the last few decades, new branches of laws like consumer protection laws, defamation laws and the like, are in place. Whether these can be seen as new branches of a growing tree, or new array of pigeon holes, both approaches can be accommodated as valid points of view.
In Jai Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1 case, the Court 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 refine-ness, the liberal approach to tortious liability by court would be conducive.
In Lala Punnalal v Kasthurichand Ramaji, AIR 1946 Mad 147 case, the Madras High Court pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts.
In M.C. Mehta v. Union of India, AIR 1987 SC 1086 case, Justice Bhagwati mentioned, “We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialised 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.” By the statements, we can infer that Justice Bhagwati realised the value of having one’s own law and how it helps in the growth of the nation and we can say that he emphasised Growing Tree Theory.
A tort is committed only when legal private rights of individual are violated or “Tortious liability arises from the breach of a duty primarily fixed by law”:
A tort is constituted due to the occurrence of a “wrongful act or omission” by any person. The term ’act’ must include both positive as well as negative acts i.e. acts and omissions. To be considered as a tort the act must be done “intentionally, deliberately, or emphatically” to cause “legal” damages to the other party.For any legal injury, there is a legal remedy to the injured party which is usually in the form of “unliquidated” damages. Hence there is a creation of tortious liability.
For example: X drives his car carelessly with the result that it mounts the pavement and hits Y (to walk on pavement with a safety is a legal right), a pedestrian, causing Y personal injuries. The act is X driving the vehicle carelessly (to drive carelessly is a legal wrong). This act has caused damage to Y. The damage was as a result of X’s carelessness, i.e. his fault. The injury suffered by Y, personal injury, is recognized by law as attracting liability. X will be liable to Y in the tort of negligence and Y will be able to recover damages. Thus, to drive a car with care and obeying the rules is fixed by the law. X breached those rules and injured Y physically and legally. Hence a tortious liability is created.
Right in Rem and Right in Personam:
- Right in Rem: A right in rem is available against the world at large; it is a right available against persons generally. This right is available against everybody. Examples are rights of possession and ownership.
- Right in Personam: A right in personam is available only against a determinate person or persons, corresponds to a duty imposed on determinate individuals. These rights are personal to both of them (the plaintiff and the defendant). Outsiders are not concerned with them. Examples of right in personam are the right to receive compensation for false imprisonment or defamation; or the right to recover a debt from the person who owes me the money. Rights under a contract are rights in personam for only the parties thereto are bound.
Distinguishing between “Right in rem” and “Right in personam”:
| Right in rem | Right in Personam |
| A right in rem is available against the world at large. | A right in personam is available only against a determinate person or persons, corresponds to a duty imposed on determinate individuals. |
| it is a right available against persons generally. | These rights are personal to both of them (the plaintiff and the defendant). Outsiders are not concerned with them. |
| Rights in rem are almost always negative. It is a right to be left alone. It is a right that people should not interfere with anyone’s ownership. | Rights in personam are usually positive. It is acquired because the subject stands in some special relationship towards another person as in the case of a contract. Rights in personam may also be negative as in the case of sale of goodwill |
| Rights in rem are known as real rights | Rights in personam as personal rights. |
| Examples are the right of not to be defamed and not to be assaulted. | Examples of right in personam are the right to receive compensation for false imprisonment or defamation; or the right to recover a debt from the person who owes me the money. |
Characteristics of a Tort:
- A tort is a civil wrong: Legal wrongs can be classified into two types, civil wrongs, and criminal wrongs. Civil wrongs are further classified into three types viz. breach of contract, breach of trust and torts. It should be noted that the remedies for breach of contract or the breach of trusts are governed by statutes, whereas the remedies for a tort can be decided using common law.
- Tort is an infringement of a right in rem: A right to do an occupation peaceful on a farm is right in rem, while the right to receive rent from a tenant is right in personam. The right to liberty and reputation is right in rem, while the right to receive compensation for false imprisonment or defamation is right in personam. Tort is an infringement of a right in rem and not a right in personam.
- Tort deals with the cases related to the legal rights: The law of torts deals only when the legal rights are violated and the law works independent of the consent of parties.
- Common law action: In India, there is no Common Law but in England, it is used. Thus, the working of the law of tort is the common law action. In India, such suits can be filed in Civil Courts.
- Remedy: The remedy is in the form of damages. i.e. in terms of money.
Ingredients of Tort:
The ingredients or essential elements of a tort are fundamental components that must be established to successfully prove a tort claim. While these elements can vary slightly depending on the type of tort (e.g., negligence, intentional torts), the following are the key ingredients typically involved in most tort claims:
- Wrongful Act or Omission: A wrongful act is an action that violates another person’s legal rights and causes harm to them. It can be a positive act or an omission, and can be committed intentionally, negligently, or by breaching a strict duty.
- Duty of Care: The defendant owed a legal obligation to the plaintiff to act (or refrain from acting) in a certain way. For example. a driver has a duty to operate their vehicle safely and follow traffic laws to avoid harming other road users.
- Breach of Duty: The defendant failed to meet the standard of care expected in that situation, thereby breaching their duty to the plaintiff. For example, a doctor who fails to follow standard medical protocols may be found to have breached their duty of care to a patient.
- Causation: There must be a direct link between the defendant’s breach of duty and the harm suffered by the plaintiff. For example, if a driver runs a red light and hits another car, the crash is a foreseeable consequence of their negligent behavior. In this stage to important maxims Injuria sine damno and damnum sine injuria are used. Causation is typically divided into:
- Actual Cause (Cause in Fact): The plaintiff must demonstrate that the injury would not have occurred “but for” the defendant’s actions.
- Proximate Cause: The harm must be a foreseeable consequence of the defendant’s actions, establishing a reasonable connection between the breach and the injury.
- Legal Remedy: If plaintiff gets injured, while exercising his legal rights, according to the maxim ubi jus ibi remedium will have remedy.
- Unliquidated Damages: Unliquidated means not pre-determined. The plaintiff must have suffered actual harm or loss as a result of the defendant’s actions. Damages can be economic (medical expenses, lost wages) or non-economic (pain and suffering, emotional distress). For example, if an injured party incurs medical bills and loses income due to their injuries, they can seek compensatory damages.
These ingredients are essential for establishing a tort claim. If any of these elements are missing, the plaintiff may not succeed in proving their case. Understanding these components helps both plaintiffs and defendants navigate tort claims effectively.
Wrongs, which are not Torts:
In tort law, certain wrongful acts do not fall under the category of torts despite causing harm or injury. Here are some examples of wrongs that are not considered torts:
- Criminal Offenses: Criminal acts are offenses against the state or public that violate statutory laws. While they may cause harm to individuals, they are prosecuted by the government, not the injured party. Theft, assault, and murder are criminal offenses. A person can be charged with a crime for these actions, but they are not categorized as torts.
- Breach of Contract: A breach of contract occurs when one party fails to fulfill the terms of a legally binding agreement. This is a matter of contract law rather than tort law. If a contractor fails to complete a home renovation as agreed, the homeowner may pursue a breach of contract claim rather than a tort claim.
- Pure Economic Loss: Economic loss that does not arise from physical injury to a person or property is generally not actionable in tort. This includes losses that are purely financial without accompanying damage. If a business loses profits due to another party’s negligent actions but no physical harm occurs, this may not be a tort claim.
- Family Law Wrongs: Issues arising from family relationships, such as divorce or child custody disputes, typically fall under family law and are not categorized as torts. Emotional distress from a divorce may be significant, but it does not constitute a tort unless accompanied by intentional infliction of emotional distress.
- Disciplinary Actions: Actions taken by professional bodies or organizations to discipline members (like revoking a license) typically do not qualify as torts. A doctor losing their medical license due to unethical behavior is subject to disciplinary action rather than a tort claim.
- Political or Administrative Wrongs: Actions taken by governmental authorities, such as wrongful termination from a job in the public sector, may fall under administrative law rather than tort law. A public employee fired without due process may have a claim under employment law, not tort law.
- Statutory Violations: Some wrongful acts are governed by specific statutes and may not constitute torts unless the statute explicitly provides for a tort claim. Violating consumer protection laws may lead to statutory penalties without necessarily giving rise to a tort claim.
While many wrongful acts can lead to tort claims, there are several categories of wrongs that fall outside tort law, including criminal offenses, breaches of contract, and certain economic losses. Understanding these distinctions is crucial for navigating legal disputes and determining the appropriate course of action for seeking remedies.
Case Laws:
In Rural Transport Service v. Bezlum Bibi, AIR 1980 Cal 165 case, where the conductor of an overloaded bus invited passengers to travel on the roof of the bus. On the way the bus swerved on the right side to overtake a cart. One of the passengers on the roof of the bus was struck by an overhanging branch of a tree. He fell down and died because of injuries. Held that there was negligence on the part of both the driver and the conductor of the bus.
In Donoghue v. Stevenson (1932) A.C. 562 case, the appellant plaintiff drank a bottle of ginger beer which was brought from a retailer by her friend. The bottle in fact contained the decomposed body of snail, which was found out by her when she had already consumed a part of the contents of the bottle. The bottle was dark opaque glass sealed with a metal cap so that its contents could not be ascertained by inspection. Court held that the manufacturer of the bottle was responsible for his negligence towards the plaintiff.
In Municipal Corporation of Delhi v. Subhagwanti (AIR 1966 S.C. 1750) case, due to collapse of the Clock Tower situated opposite the Town Hall in the market of Chandani Chowk, Delhi, a number of persons died. The Clock Tower belonged to the municipal corporation of Delhi and its maintenance was exclusively under its control. It was 80 years old. On the facts, it was revealed that the type of materials used in it, the normal life of the structure of the top story of the building could not be more than 40 to 50 years. Supreme Court of India held that the rule of res ipsa loquitur applied and the fall of the clock tower was due to the negligence of the defendant corporation.
Bhim Singh v. State of J&K, AIR 1986 SC 494 case is a landmark judgment that addresses the critical issue of false imprisonment, where an individual’s freedom is unlawfully restricted without legal authority or their consent. This case underscores the constitutional safeguards meant to protect individuals from wrongful detention. The case highlighted the severe violation of fundamental rights under Articles 21 and 22(2) of the Constitution of India. In this case, Bhim Singh, an MLA from Jammu & Kashmir, was illegally detained by the police to prevent him from attending a session of the Legislative Assembly of J&K. The court’s proactive stance in awarding exemplary compensation and addressing the misconduct of police officials marked this case as a significant precedent in upholding individual liberties and the rule of law.
Conclusion:
The concept of tort is a fundamental aspect of civil law, addressing various forms of wrongful acts that cause harm or loss to individuals. Through its framework, tort law seeks to provide remedies for victims, promote accountability, and deter harmful behavior. The key elements of torts—duty of care, breach of duty, causation, and damages—form the foundation for evaluating claims and determining liability. Torts can be broadly classified into categories such as negligence, intentional torts, and strict liability, each with its own legal principles and implications. This classification not only aids in understanding the diverse nature of wrongful acts but also helps legal practitioners and courts apply appropriate standards in adjudicating cases.
In a world where interactions among individuals and organizations are complex, tort law plays a critical role in balancing rights and responsibilities. It offers a pathway for individuals to seek compensation and justice, fostering a sense of fairness within society. As societal norms evolve and new types of conduct emerge, the concept of tort continues to adapt, reflecting changes in legal standards and expectations.
Ultimately, the study of tort law reveals its significance not only as a means of redress for individuals but also as a mechanism for promoting social responsibility and protecting the rights of all members of society. Understanding torts equips individuals with the knowledge to navigate potential legal challenges and underscores the importance of exercising care and responsibility in their actions.