This article is written by Sonali Chauhan, a student of Lloyd Law College, Greater Noida. The author in this article, has discussed the concept of Sources of Tort.

Introduction

Tort law is a body of law that addresses and provides remedies for non-contractual acts of civil wrongdoings. A person suffering legal damage may be able to use tort law to receive compensation for those injuries from someone who is legally responsible or liable. In general, tort law defines what constitutes a legal injury and sets out the circumstances under which one person may be held liable for the injury of another. Tort law spans acts that are intentional and negligent. The three purposes of the tort law. The first is compensating the victim, the second is punishing the wrongdoer and the third is deterring harmful activities.

What is a Tort?

The tort is a French word, meaning “wrong”[Latin tortus: “twisted”].

In the criminal law system, nearly every tort is mirrored, though separate terminology is deployed. The difference between these two law branches is that criminal cases are perceived as a crime against the whole of society. Subsequently, a governing body, as in England, the Crown, or some level of the court system in America, decides on a defendant’s guilt and sentence.

Thus, in the form of one of these entities, a criminal defendant is sued by the state; if found guilty of the charged crime, he will be sentenced to whatever penalty is deemed justified.

On the other hand, civil laws, known as torts, will allow one person to sue another. If the plaintiff prevails, a court order will be issued to the defendant (tortfeasor) to do or refrain from doing whatever act brought this case to court. If deemed appropriate, the defendant may also be compelled to pay the plaintiff monetary damages, similar to a fine ordered in a criminal court.

Different Verdict by these Separate Courts

The famous criminal case of 1995 showed this sort of divergence, usually dubbed People vs O.J. Simpson. Here, a criminal jury acquitted the sports icon Orenthal James Simpson, accused of murdering his former spouse Nicole Brown-Simpson, and waiter Ron Goldman.

The Brown and Goldman families, however, brought a civil suit against O.J. in 1996. Simpson. The jury found him liable here for causing the wrongful deaths of these two victims and awarded $33.5 million to the plaintiffs.

Furthermore, while a criminal court requires a belief in guilt beyond a reasonable doubt as a standard of proof that the civil burden of proof is less stringent, based on clear and convincing evidence, or a high probability. Just as tort law changes ‘murder’ to wrongful death’, ‘ liability’ to  ‘guilt’.

Origin of Tort Law

Prior to 1066, the French William the Conqueror’s of Norman conquest of England, the legal system was somewhat haphazard, carried out on  case-by-case basis more or less. After 1066, in order to absorb those village laws that had developed over two centuries, eminent judges were delegated to travel about a given region. These judges, benefiting from this information, noted and implemented precepts that they considered most fair-minded in their own court findings. In time, these cases became what is now called legal precedents when referred to often enough.

The law of Tort came to India, through England. After the Norman Conquest, French became the spoken language in England’s judiciary and thus many of the English law’s technical terms owe their origin to French and tort is one of them. The term ‘tort’ is based on the concept that there are certain rights for everyone in society. The purpose of this tort law to enforce rights and duties.

Sessions during which these judges conducted trials were dubbed ‘assizes’ or, in modern terms, ‘sittings’. The place from which a judge makes verdicts and sentences is called ‘ the bench ‘ even now. Once these precedents were established, they were intended to apply equally to every member of society, from a lord to a serf, resulting in the term common law.

In the 14th century, the word ‘negligenter’ appeared in writs of trespass to denote neglectful conduct.

•  Cok v Durant [1377], Calendar of Plea and Memoranda Rolls 1364-81, 235:               No reference to an undertaking, but London’s custom required everyone to keep his fire safe so that his neighbor was not injured. Note the use of the word “neighbor”: in the tort of negligence has a particular resonance.
• Beaulieu v Finglam [1401], Baker & Milsom, Sources of English Legal History, 557: First reference to “real custom.” Note the use of the term “custom”: ideas of custom, tradition, and precedent are all essential to common law ideology and practice.

Negligence: the most significant tort of 20th and 21st centuries; “negligent” behavior also describes behaviors that attracts liability in other torts.

Case Laws

The tort is essentially a common-law area developed in court by judges (although the statute is relevant), often in response to social, economic conditions and social values.

• Lord Steyn in Chester v Afshar [2004] UKHL 41 : “The result is in accord with one of the most basic aspirations of the law, namely to right wrongs. Moreover, the decision…reflects the reasonable expectations of the public in contemporary society”.

• MacDonald J., in Nova-Mink v Trans-Canada Airlines [1951] 2 DLR 241: “There is always a large element of judicial policy and social expediency involved in the determination of the duty problem, however it may be obscured by the traditional formulae”.

2 quotations from Lord Mansfield (Chief Justice of the King’s Bench, 1756-88), which illustrate the importance of judges in “making” law:

“The reason and spirit of cases make law; not the letter of particular precedent” : Fisher v Prince [1762] 3 Burr 1364;

“Matters of practice are not to be known from books. What passes at a judge’s chambers is matter of tradition: it rests in memory” : R v Wilkes [1770] 4 Burr 2566.   

Policy. Are decisions taken on the basis of formal conceptualism (often referred to as “black letter law”) or is there a political reason behind the decision?

How far does fear of the open “floodgates” influence judicial decision-making?

“Whenever the courts draw a line to mark out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant” : Spartan Steel v Martin & Co [1973] QB 27, per Lord Denning, M.R.

Categories of Tort

The two basic categories of Tort are:

• Intentional Torts: It is one of the categories of torts that describes a civil wrong resulting from the tortfeasor’s intentional act.
• Negligent Torts: Negligence is a failure to exercise the  due care that, in similar circumstances, a reasonably prudent person would exercise. The area of law of tort known as negligence involves harm caused by carelessness, not intentional harm.

Wrongs

These are of two types:

• Public wrong – These are acts that are tried in criminal courts, punishable under criminal law, and are called crimes. 
• Private wrong – These are acts against an individual or an individual in a community and are tried in civil courts and are called torts.

Differences between Tort and Crime

In criminal and civil actions standard of proof varies: “beyond a reasonable doubt” and “on a balance of probabilities”.

The interweaving of Act and Content

The main dividing line between past laws and current laws is the separation of what a defendant might have done and his motives to do so. Only acts were considered originally. According to Chief Justice Brian, “The thought of man shall not be tried, for the devil himself knoweth not the thought of man.” (In many early cases, the names of the parties and judges were either not recorded or have been  lost).

Nevertheless, the perception of the results of an act, rather than whatever intention might have sparked it, was expressed in a case of 1146 in which a judge held that, if anyone commits an act, however acceptable in itself, which may have an impact on others, he has a duty to perform this act, to the utmost degree of his ability, in a manner that does not cause any personal injury or damage to another.

To put differently his judicial opinion, referring to himself in a hypothetical sense, the judge explained that if I drop a piece of that timber in the process of lifting timber to build a building, causing damage to my neighbor’s home, he would have a valid claim against me. It won’t matter if my construction was completely lawful, or if I didn’t intend the outcome to happen.

Inferentially, therefore, the defendant owes the complainant the monetary compensation needed to repair the damage, as well as the labor costs involved.

A Modern View of Intent

With regard to both criminal and tort systems, the intent is pivotal to almost every court decision. Where it can be shown that the timber drop was intentional or due to extreme negligence, punitive as well as compensatory damage is likely to result. As their words suggest, compensatory damage is meant to force the defendant to pay for the actual damage, possibly replacing a roof and/or a number of broken windows.

Punitive damages, on the other hand, are intended to punish where a judge or jury can find intent or negligence reaching the edge of intent. In Modern terms, most cases of tort are resolved by a judge, unless the matter is of such a serious nature as to require a jury.

Returning to our historical tapestry, as centuries went by, the significance of intent was recognized with a lingering sense of uncertainty, although at first in a tentative manner. Thus, in a 1681 case, a judge ruled: “The law shows less concern with the actor’s intent than with the loss and damage of the suffering party”. This indicates that intent had begun to be seen as a force which, if not yet central, could no longer be dismissed as lacking the slightest significance.

Underpinnings of Tort Law

The source of tort law in its most basic terms is to shield society from chaos and pandemonium by setting up a court in which one person can bring a claim against another, without resorting to private revenge.

Unlike litigation branches such as contracts and real property, the law of torts considers such concerns as the loss of dignity experienced by a party bringing a personal injury claim. Often, the real source of a claim is the sense of humiliation of being exploited or tricked.

Violations of dignity can be seen as the western equivalent of other cultures’ concepts of losing face. This system allows for consideration of pain and suffering, as well as other types of emotional distress, when reaching a verdict in a civil court.

Conclusion

There is some similarity between crime and tort, since in the past centuries tort, a private action, used to be used more than criminal laws. An assault, for example, is both a crime and a tort (a form of trespass against the individual). A tort allows an individual, the victim, to obtain a remedy that serves their own purposes (e.g. by paying damages to a person injured in a car accident or by obtaining injunctive relief to stop a person from interfering in their business). On the other hand, criminal actions are pursued not to obtain remedies to assist a person – although criminal courts often have the authority to grant such remedies – but to remove their freedom on behalf of the state. This explains why incarceration is usually available as a punishment for serious crimes, but usually not for tort.