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 anti-social elements and that an individual should have freedom to exercise his rights without being restricted by others. Further, if there is a transgression of any right, there must be a way to compensate or to restore the right. This is essentially what the maxim, “Ubi jus ibi remedium” implies. Where ever there is a right, there is a remedy. Indeed, a right has no value if there is no way to enforce it. Such rights of individuals primarily originate from two sources - contractual obligations and inherent rights that are available to all the citizens against every other citizen, aka rights in rem. While 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. Such 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. He is, thus, doing a wrong and even though there is no contract between the two, one can sue him for damages.
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 cases. However, the following are some definitions from the experts -
Salmond - A tort is a civil wrong for which the remedy is action in common law for unliquidated damages and which is not exclusively a breach of contract or breach of trust or other equitable 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 unliquidated damages.
Fraser - Tort in an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured 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 injured due to a tortious act.
From the above definitions, it is clear that the nature of a tort is that it is a civil wrong. However, 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 make sure that it is a civil wrong. We should then make sure that it is NOT a breach of contract or breach of trust.
Historically, crime and tort originated from the same root. Later on, they separated on the account that a crime does not only affect the victim but also to the society as a whole to a great 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 nature of tort can be understood by distinguishing it from crime 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 unliquidated and are decided only by the common sense of the courts. The following differences between Tort and Crime and Tort and Breach of Contract, 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 the persons in general (right in rem) is violated without the existence of any contract. | A breach of contract occurs due to a breach of a duty (right in persona) agreed upon by the parties themselves. |
| Victim is compensated for unliquidated damages as per the judgment of the judges. Thus, damages are always unliquidated. | Victim is compensated as per the terms of the contract and damages are usually liquidated. |
| Duty is fixed by the law of the land and is towards all the persons. | Duty towards each other is affixed by the contract agreed to by the parties. |
| Doctrine of privity of contract does not apply because there is no contract between the parties. This was held in the case of Donaghue vs Stevenson 1932. | Only the parties within the privity of contract can initiate the suit. |
| Tort applies even in cases where a contract is void. For example, a minor may be liable in Tort. | When a contract is void, there is no question of compensation. For example, a contract with a minor is void ab initio and so a minor cannot be held liable for anything. |
| Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to the victim. In Bhim Singh vs State of J K AIR 1986 - the plaintiff was awarded exemplary damages for violation of his rights given by art 21. | Justice is met only by compensating the victim for actual loss. |
In the case of Donaghue vs Stevenson 1932, A purchased ginger beer in a restaurant for his woman friend. She drank a part of it and poured the rest into a glass. Thereby, she saw a dead snail in the drink. She sued the manufacturer. It was held that the manufacturer had a duty towards the public in general for making sure there are no noxious things in the drink even though there was no contract between the purchaser and the manufacturer.
The same principal was applied in the case of Klaus Mittelbachert vs East India Hotels Ltd AIR 1997. In this case, Lufthansa Airlines had a contract with Hotel Oberoi Intercontinental for the stay of its crew. One of the co-pilots was staying there took a dive in the pool. The pool design was defective and the person’s head hit the bottom. He was paralyzed and died after 13 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 contract. He could also sue in torts where plea of stranger to contract 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 50Lacs as exemplary damages.
Distinction between Tort and Crime
| Tort | Crime |
|---|---|
| Tort occurs when the right available to all the persons in general (right in rem) is violated without the existence of any contract. | Tort occurs when the right available to all the persons in general (right in rem) is violated and it also seriously affects the society. |
| Act is comparatively less serious and affects only the person. | Act is comparatively more serious and affects the person as well as the society. |
| Intention is usually irrelevant. | Intention is the most important element in establishing criminal liability. A crime cannot happen without Mens Rea. |
| It is a private wrong. | It is a public wrong. |
| Since it is a private wrong the wronged individual must file a suit himself for damages. | Since it is a public wrong, the suit is filed by the govt. |
| The suit is for damages. | The suit is for punishment. |
| Compromise is possible between the parties. For example, a person who has been defamed, can compromise with the defamer for a certain sum of money. | There is no compromise for the punishment. For example, if a person is guilty of murder, he cannot pay money and reduce his sentence. |
| Compounding is possible. | Compounding is generally not possible. |
| Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to the victim. In Bhim Singh vs State of J K AIR 1986 - the plaintiff was awarded exemplary damages for violation of his rights given by art 21. | Justice is met by punishing the aggressor by prison or fine. In some specific cases as given in IPC compensation may be given to the victim. |
| Tortious acts are usually not criminal acts. | Several criminal acts such as assault and battery are also grounds for tortious suit. |
Ingredients of Tort (Conditions that must be satisfied before a liability in Tort arises.)
There are three essential elements for an act to be liable under Tort.
1. Wrongful act or omission
2. Duty imposed by law
3. Injury
Harm due to negligence - A person is not liable in tort even if he causes harm due to negligence but does not cause injury. In Dickson vs Reuter’s Telegram Co 1877, the defendant company delivered a telegram that was not meant for the plaintiff to the plaintiff. Based on the telegram, the plaintiff supplied some order which was not accepted by the sender of the telegram. Plaintiff 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. Hence they were not liable.
Kinds of Torts
As mentioned before there can be innumerable type of acts that violate the legal right of others. The law of tort is therefore ever evolving. New ways in which the rights are violated come to light everyday. However, they can be classified on the basis of way of incurrment of liability into the following three categories -
- Intentional - Wrongful acts that are done intentionally, irrespective of with or without malice, belong to this category. For example, torts such as assault, battery, trespass to land, false imprisonment are intentional torts.
- Negligent Conduct - Wrongful acts that are done without any intention but because of not taking proper care that is required by law fall into this category.
- Strict Liability - Acts that are neither done intentionally nor do involve any negligence, but still cause an injury to other are liable under the concept of strict liability as propounded in Rylands vs Fletcher. In strict liability cases, the defendant is liable even if it acted reasonably.There are 3 types of strict liability cases:
- keeping 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 -
- Physical Torts - Causing physical hurt to body such as assault, battery. It can happen with intention or even with negligence.
- Abstract Torts - Causing damage to mind or reputation such as defamation.
- Tort involving property - For example, Trespass to land.
- Tort involving legal right - For example, false imprisonment.
- Nuisance - Causing unreasonable restriction towards exercise of one’s legal right.
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