Basics of Tort
Meaning:
The word tort has been derived from the latin word "tortum" which means to twist. In general, it means conduct that adversely affects the legal right of others and is thus, "wrong". For a healthy society it is necessary that it be free of antisocial elements and that an individual should have freedom to exercise his rights withou withoutt being being restricte restricted d by others. others. Further Further,, if there there is a transg transgres ressio sion n of any righ right, t, ther theree must must be a way way to comp compen ensa sate te or to resto restore re the the righ right. t. This This is essentially what the maxim, "Ubi ust ibi remedium" implies. !here ever there is a right, there is a remedy. Indeed, a right has no value if there is no way to enforce it. uch rights of individuals primarily originate from two sources contractual obligations and inherent rights that are available to all the citi#ens against every other citi#en, a$a rights in rem. !hile the violation of contractual right has clear remedy that arises from the contract itself, the violation of rights that are available to all the persons in general does not have a clear remedy because there is no explicit contract between the two parties. uch violations are called wrongs and it is for such wrongs that the law of torts has been developed. For example, one has a right against all other persons to be free of noise in the night. If somebody starts playing music loudly, then he violates one%s right to be noise free. &e is, thus, doing a wrong and even though there is no contract between the two, one can sue him for damages. damages.
Definitions:
There can be innumerable types of acts that can transgress the rights of others and it is not possible to come up with a definition that can accommodate all the case cases. s. &owe &oweve ver, r, the the foll follow owin ing g are some some defi defini niti tion onss from from the the expe experts rts -
Salmond - ' tort is a civil wrong for which the remedy is action in common
law for unli(uidated damages and which is not exclusively a breach of contract or breach of trust or other e(uitable obligation.
Winfield - Tortious liability arises from the breach of duty primarily affixed by
law. The duty is towards persons in general and its breach is redressable by an action for unli(uidated damages.
Fraser - Tort in an infringement infringement of a right in rem of a private individual giving giving
a right of compensation at the suit of the inured party.
Thus, it can be seen that tort is an act while the law of tort is the branch of law that provides relief to the person who has been inured due to a tortious act.
From the above definitions, definitions, it is clear that the nature of a tort is that it is a civil wrong. &owever, not all civil wrongs are torts. For example, breach of contract and breach or trust are civil wrongs but are not torts because their remedies exist in the contract itself. To determine if a particular act is a tort or not, we must first ma$e sure that it is a civil wrong. !e should then ma$e sure that it is )*T a breach of contract or breach of trust.
&ist &istori orica call lly, y, crim crimee and and tort tort orig origin inat ated ed from from the the same same root. root. +ate +aterr on, on, they they separated on the account that a crime does not only affect the victim but also to the society society as a whole to a great extent. extent. Thus, the branch of law that deals with criminal conduct evolved a lot faster than the branch of law that deals with
torts.
The The natu nature re of tort tort can can be unde underst rstoo ood d by dist distin ingu guis ishi hing ng it from from crime crime and and contractual civil liabilities. It can be said that tort is the residual of wrongful acts that are not crime and that do not fall under contractual liabilities. Thus, if a wrongful act is neither crime nor a violation of a contract, it may fall under tort. The damages are unli(uidated and are decided only by the common sense of the courts. The following differences between Tort and rime and Tort and reach of ontract, shows the true nature of Tort.
Distinction between Tort and Breach of Contract
Tort
Breach of Contract
Tort occurs when the right available to all ' breach of contract occurs due to the the pers person onss in gene genera rall rig right ht in rem rem/ is a breach of a duty right in viol violat ated ed with withou outt the the exis existtence ence of any any persona/ agreed upon by the parties contract.
themselves.
0ict 0ictim im is comp compens ensat ated ed for for unli unli(u (uid idat ated ed 0ictim is compensated as per the damages as per the udgment of the udges. terms of the contract and damages Thus, damages are always unli(uidated. 1uty is fixed by the law of the land and is towards all the persons.
are usually li(uidated. 1uty towards each other is affixed by the contract agreed to by the parties.
1oct 1octri rine ne of priv privit ity y of cont contra ract ct does does not not apply because there is no contract between *nly the parties within the privity the parti rties. This was held in the case of contract can initiate the suit. of Donaghue vs Stevenson 19!. Tort applies even in cases where a contract !hen a contract is void, there is no
(ues (uesti tion on
of
com compens pensat atio ion. n.
For For
is void. For example, a minor may be liable example, example, a contract contract with a minor minor is in Tort.
void ab initio and so a minor cannot be held liable for anything.
2ustice is met by compensating the victim for his inury and exemplary damages may also also be awar awarde ded d to the the vict victiim. In Bhim Singh vs State tate of " # $%& 19'( - the
plaintiff was awarded exemplary damages
2ustice
is
met
only
by
compensating the victim for actual loss.
for violation of his rights given by art 34. In the case of Donaghue vs Stevenson 19! , ' purchased ginger beer in a restaurant for his woman friend. he dran$ a part of it and poured the rest into a glass. glass. Thereby, she saw a dead snail in the drin$. he sued the manufacturer. manufacturer. It was held that the manufacturer had a duty towards the public in general for ma$ing sure there are no noxious things in the drin$ even though there was no contract between the purchaser and the manufacturer.
The same principal was applied in the case of #laus Mittelbachert vs )ast %ndia *otels +td $%& 199, . In this case, +ufthansa 'irlines had a contract
with &otel *beroi Interconti Intercontinenta nentall for the stay of its crew. *ne of the co-pilots co-pilots was staying there too$ a dive in the pool. The pool design was defective and the person%s head hit the bottom. &e was paraly#ed and died after 45 yrs. The defendants pleaded that he was a stranger to the contract. It was held that he could sue even for the breach of contract as he was the beneficiary of the cont contra ract ct.. &e coul could d also also sue sue in tort tortss where where plea plea of stra strange ngerr to cont contra ract ct is irrelevant. The hotel was held liable for compensation even though there was no
contract between the person and the hotel and the hotel was made to pay 67+acs as exemplary damages.
Distinction between Tort and Crime
Tort
Crime
Tort occurs when the right Tort occurs when the right available to all the avai availa labl blee to all all the the pers persons ons in persons in general right in rem/ is violated general right in rem/ is violated without the existence of any contract.
and it also seriously affects the society.
'ct is comparatively less serious and affects only the person.
'ct
is
comp omparat ratively
more
serious serious and affects affects the person as well as the society. Intention is the most important
Intention is usually irrelevant.
element element in establishin establishing g criminal criminal liability. ' crime cannot happen without 8ens 9ea.
It is a private wrong.
It is a public wrong.
ince it is a private wrong the wron ronged ince it is a public wrong, the individual must file a suit himself for damages. suit is filed by the govt. The suit is for damages.
The suit is for punishment. There is no compromise for the
omprom ompromise ise is possib possible le betwee between n the partie parties. s. punishment. For example, if a For example, a person who has been defamed, person is guilty of murder, he can compromise with the defamer for a certain cann cannot ot pay pay mone money y and and redu reduce ce sum of money. his sentence. ompounding is possible.
ompounding is generally not
possible. 2ustice is met by compensating the victim for his inury and exemplary damages may also be awarded to the victim. In Bhim Singh vs State of " # $%& 19'( - the plaintiff was awarded
exemplary damages for violation of his rights given by art 34.
2ustice is met by punishing the aggressor by prison or fine. In some specific cases as given in I: compensation may be given to the victim. eve everal ral crimi crimina nall acts acts such such as
Tortious acts are usually not criminal acts.
assa assaul ultt and and bat batter tery are are also also grounds for tortious suit.
%ngredients of Tort -Conditions that must be satisfied before a liabilit. in Tort arises/0
There here are are three ree esse essent ntiial elem elemen entts for for an act act to be liab liable le unde underr Tort ort.
1/ Wrongful act or omission - There must be some act or omission of a duty on
the part of the defendant. For a tort to happen, the person must have first either done something something that he was not expected to do or omitted omitted to do something something that he was supposed to do.
Municial Cor of Delhi v/ Subhagvanti $%& 19(( - ' cloc$ tower was not
in good repairs. It fell and $illed several people. 81 was held liable for its omission.
!/ Dut. imosed b. law - The act or omission of an action must be re(uired by
law law or the the duty duty must must be impo imposed sed by law. This This means means that if an act act that that is prohibited by law causes harm, it is liable under tort. imilarly, if the omission of an act that is re(uired by law causes harm, then it is liable under tort. For example, law re(uires that the driver of a vehicle must drive carefully and if driving without care, a pedestrian is hit, the omission of the act of driving carefuly is liable under tort. &owever, if the worshipers stop going to a temple and thereby cause the priest to lose money, this action is not liable under tort because going to temple is not an act that is re(uired by law. uch duties that are re(uired by law are usually towards rds all the people in general ral. Donaghue vs Stevenson 19! - &eld that the manufacturer of a drin$ has a
legal duty towards the consumers to ensure that noxious substances are not included in the drin$.
/ %n2u %n2ur. r. -+ -+eg egal al Damage Damage00 3 The The act act or the the omis omissi sion on must must resu result lt in lega legall
damage or inury i.e. violation of a legal right vested in the plaintiff. This means that the act or omission must cause a damage that is recogni#ed by law as wrongful. For example, a person has a legal right to enoy his property and if someone throws trash in it, this is a violation of his legal right and is liable under tort. &owever, &owever, it is possible possible that a legal right is violated without without causing any physical or real damage. This is explained in the maxim - Inuria ine 1amno.
%n2uria Sine Damno $shb. vs White 1,4 - The defendant wrongfully prevented the plaintiff from
voting. ;ven though there was no damage, the defendant was held liable.
Bhim Singh vs State of " # $%& 19'( - :laintiff was an 8+' and was
wrongfully arrested while going to assembly session. &e was not produced before a magistrate within the re(uisite period. It was held that this was the violation of his fundamental rights. ;ven though he was release later, he was awarded 9s. 67,777 as exemplary damages by upreme ourt.
*n the other hand, it is possible that a person suffers a huge loss or damage but none of his legal rights are violated. This is called 1amnum sine Inuria. In such cases, there is no tortious act.
Damnum Sine %n2uria
5laucester 5rammar School6s case 4<47 - 1efendant opened a rival grammar
school in front of an existing one thereby causing the fees of the existing one to be reduced from <7pence to 43 pence. &e was not held liable as he did not violate any legal right of the plaintiff.
7shaben 7shaben vs Bhag.a Bhag.a+a8 +a8mi mi Chitra Chitra Mandir Mandir $%& 19,' - :lai :laint ntif ifff sough soughtt a
permanent inunction against the cinema house to restrain them from showing the the movi moviee 2ai 2ai ant antos oshi hi 8aa. 8aa. It was was conte contend nded ed that that the the movi moviee depi depict ctss the the goddesses goddesses +axmi, araswati, araswati, and :arvati :arvati in bad light, which is offensive to the plaintiff. It was held that hurt to religious sentiments is not recogni#ed as a legal wrong. ince there was no violation of a legal right, an inunction was not granted.
Ches Chesmo more re vs &ich &ichard ardss 1',9 1',9 - :lai :laint ntif ifff had had been been draw drawin ing g wate waterr from from
underground for past =7 yrs. The defendant sun$ a bore well on his land and drew huge (uantity of water which diminished the water supply of the plaintiff. It was held that the defendant was not liable because he was only exercising his right and did not violate any right of the plaintiff.
*arm due to negligence - ' person is not liable in tort even if he causes harm
due to negligence but does not cause inury. In Dicson vs &euter6s Telegram Co 1',, the defendant company delivered a telegram that was not meant for
the plaintiff to the plaintiff. ased on the telegram, the plaintiff supplied some order which was not accepted by the sender of the telegram. :laintiff suffered heavy losses and sued the defendant company. It was held that the company owed a contractual duty only to the sender of the telegram and not to the receiver. &ence they were not liable.
*arm due to malice - If a person has not caused an inury even if he does an
act with with malice malice,, he is not liable liable.. In -ma.or of0 Bradford Cororation vs ;icles ;icles 1'9<, the defendants sun$ a shaft in their own land which caused the
water to become discoloured and unsuitable for the plaintiff. It was held that even if the defendant did it with malice, he had not violated any right of the plaintiff and hence was not liable. 'lso see ;rabhu Da.al v/ Town $rea Committee.
=/ +egal &emed. 3 &istorically, a person whose legal right was violated was
allowed to sue only upon permission from the >ing. There were only certain predefined torts for which the $ing%s permission could be obtained. Thus, it was necessary to have legal remedy for that particular violation before an action for damages could be started.
&owever, now, such a re(uirement is not there. It has been accepted that there can be many $inds of torts and if a violation of a legal right has happened, the person is entitled to sue.
#inds of Torts
's mentioned before there can be innumerable type of acts that violate the legal right of others. The law of tort is therefore ever evolving. )ew ways in which the rights are violated, come to light everyday. &owever, they can be classified on the basis of way of incurrment of liability into the following three categories? 4. Intentional Intentional - !rongful !rongful acts acts that are done done intentional intentionally, ly, irrespecti irrespective ve of with or without malice, belong to this category. For example, torts such such as assa assaul ult, t, batt batter ery, y, tres trespa pass ss to land land,, fals falsee impri impriso sonm nment ent are are intentional torts.
3. )egligent )egligent onduct onduct - !rongful !rongful acts acts that that are done withou withoutt any intentio intention n but because of not ta$ing proper care that is re(uired by law fall into this category.
5. trict +iabil +iability ity - 'cts 'cts that are neither neither done intent intentional ionally ly nor do involve involve any negligence, but still cause an inury to other are liable under the concept of strict liability as propounded in &.lands vs Fletcher . In strict liability cases, the defendant is liable even if it acted reasonably. There are 5 types of strict liability cases? 1/ $eeping wild animals !/ dangerous, legal activities such as blasting roads / the manufacture of products products liability/
Torts can also be classified according to the type of damage 1/ :hysical Torts - ausing physical hurt to body such as assault, battery.
It can happen with intention or even with negligence.
!/ 'bst 'bstrac ractt Tort Tortss - aus ausin ing g dama damage ge to mind mind or repu reputa tati tion on such such as
defamation.
/ Tort involving property - For example, Trespass to land.
=/ Tort involving legal right - For example, false imprisonment.
legal right.
