This article is written by Aditya Dubey, student of Indore Institute of Law, Indore. The author in this act has discussed the Concept of tort and it’s independent position in the legal field.
The word tort originates from the French language. It is equivalent to the English word “wrong” and Romanian law’s term “delict”. It is derived from the Medieval Latin word “tortum” which means “wrong” or “injury” which itself was further developed from the Old Latin word “torquere” which means “to twist”. It is a breach of duty which amounts to a civil wrong. A tort arises when a person’s duty towards others is affected, an individual who commits a tort is called a tortfeasor, or a wrongdoer. And where there are multiple individuals involved, then they are called joint tortfeasors. Their wrongdoing is called as a tortious act and they can be sued jointly or individually. The main aim of the Law of Torts is the compensation of victims.
Section 2(m) of the Limitation Act,1963, Addresses tort as being a civil wrong which is not just exclusively a breach of contract or a breach of trust.
Definitions by various thinkers.
According to John Salmond, He addresses tort as being only a civil wrong which has unliquidated damages (those damages for which there is no fixed amount) in the form of remedy and which is not just exclusively the breach of contract or the breach of trust or breach of merely fair and impartial obligation.
According to 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 redressible by an action for unliquidated damages.
According to Fraser, A tort is an infringement of a right in rent of a private individual giving a right of compensation at the suit of the injured party.
Objectives of a tort
- To determine rights between the parties to a dispute.
- To prevent the continuation or repetition of harm i.e. by giving orders of injunction.
- To protect certain rights of every individual recognized by law i.e. a person’s reputation.
- To restore one’s property to its rightful owner i.e. where the property is wrongfully taken away from its rightful owner.
Essential Elements of a tort
Three essential elements which constitute a tort are,
- A Wrongful act or omission, and
- Duty imposed by the law.
- The act must give rise to legal or actual damage, and
It should be of such a nature that it should give rise to a legal remedy in the form of an action for damages.
What is a Wrongful Act?
A wrongful act can be either morally wrong or legally wrong and can also be both at the same time.
A legal wrongful act is one which affects one’s legal right, the wrongful act must be one recognized by law, the act must be in violation of the law to be a legal wrongful act. An act which seems Prima facie (based on the first impression) innocent may also end up infringing somebody else’s legal right, innuendo (Where a statement is said by an individual which may be Prima facie innocent but may also have a secondary meaning which can harm the reputation of another in the eyes of the public or the person who comes to know of such information) is an example of this. Liability for a tort arises when the wrongful act being complained of amounts to an infringement of a legal private right or a breach or violation of a legal duty. i.e. If a person is prevented from voting by another, even if the candidate he was going to vote for, wins, his legal right to vote has been violated.
For example, if someone whose religion does not allow him/her to eat non-vegetarian food, still eats it then he/she will be morally wrong but not legally wrong. And if a person whose religion doesn’t allow him or her to eat non-vegetarian and he or she strictly follows that religion is forcefully fed by someone then it is a legal wrong on the part of the person forcing the other one to eat that food which he or she does not want to eat.
What is a duty imposed by law?
A duty of care is one which is imposed on every individual and requires a standard of reasonable care that he could see as being harmful towards others. Hence, a duty imposed by law is a duty which is legally enforceable in the Indian courts.
What is a Legal damage?
Literal meaning of damage- to affect injuriously.
The term “damages” is often confused with the term “damage”, while they may look similar, they have different meanings and are significantly distinct from each other, “damages” refers to the compensation sought for, while “damage” refers to actual loss or injury.
Within the scope of the subject matter
The second important ingredient in constituting a tort is legal damage. In order to prove an action for tort in the court, the plaintiff has to prove that there was a wrongful act or an act or omission which resulted in the breach of a legal duty or the violation of a legal right. So, there must be a violation of a legal right of a person and if there is no violation of a legal right then there can be no action under the law of torts. If there has been a violation of a legal right, the same is actionable whether the plaintiff has suffered any loss or not. This is expressed by the maxim, “Injuria sine damno” where ‘Injuria’ refers to “infringement of the legal right of a person” and the term ‘damnum’ means “substantial harm, loss or damage to that individual”. The term ‘sine’ means “without”. However, if there is no violation of a legal right, no action can lie in a court despite of the loss, harm or damage to the plaintiff caused by the defendant.
Illustration :- A runs a successful school, after 5 months another school opens up nearby due to which he suffered heavy losses in the business, here he has suffered no legal damage but has only suffered damage in terms of business value so he cannot sue the competitor school for any kind of damages (similar to the case of Gloucester Grammar School Case(1410) Y B 11 Hen IV 27).
The factual significance of legal damage is illustrated by two maxims namely:
- Injuria sine damno, and
- Damnum sine injuria.
Injuria sine damno means injury without damage. Such damage is actionable under the law of torts. It occurs when a person suffers a legal damage instead of actual loss, i.e. his legal right is infringed by some other individual. In other words, this is an infringement of an absolute private right of a person without having suffered any actual loss.
An example of this can be the landmark case of, Ashby v. White(1703) 92 ER 126, where Mr. Ashby, the plaintiff, was prevented from voting by the constable Mr. White. This rule is basically based on the old maxim “Ubi jus ibi remedium” which translates to “where there is a right, there will be a remedy.”
Another example in the Indian context would be the case of,
Bhim Singh v. State of J and K, where the plaintiff was a Member of the parliament and was not allowed to enter into the premises of the Assembly election by a police constable, hence his legal right was infringed.
Damnum sine injuria whereas translates to damage without injury, here the party affected suffers damage which may also be physical but suffers no infringement of their legal rights. In other words, it means the occurrence of an actual and substantial loss to a party without any infringement of a legal right. Here no action lies in the hands of the plaintiff as there is no violation of a legal right.
Distinction between Injuria sine damno and Damnum sine injuria
(1) On one hand, i.e. in the case of Injuria sine damno there is no physical damage or an actual loss on the part of the plaintiff while on the other hand in case of damnum sine injuria there is actual damage and loss on the part of the plaintiff.
(2) Secondly, in the case of Injuria sine damno, the party suffers with the infringement of their legal rights, while in the case of Damnum sine injuria, there is no legal right infringement.
(3) Thirdly, Injuria sine damno is actionable in the court while Damnum sine injuria is not actionable in court.
(4) Fourthly, the Injuria sine damno deal with the legal wrongs while Damnum sine injuria deal with the moral wrongs.
Tort and other wrongs
Tort and Crime – Distinguished
(1) A tort is basically a private wrong, i.e. it is the infringement of a person’s right in rem, in other words, it is an infringement of a personal right. While a crime is a public wrong, i.e. is against the whole world and the state, it is an infringement of rights in personam, in other words, it is an infringement of the public right.
(2) The remedy in the case of law of torts is in the form of damages, while in the case of a crime, it is in terms of punishment.
(3) In the case of a tort, a suit is filed. Whereas, in the case of a crime, a complaint is filed.
(4) Law of torts is an uncodified law whereas law of crimes is a codified law.
(5) In tort, intention is important but not in all cases, whereas in the case of criminal law intention is the crux of the offence itself.
Example: A good example of this can be Assault, where the party who has been assaulted can bring charges against the person who has assaulted him or her. Also he or she can claim for damage in the civil courts under Tort law.
Torts and Breach of Contract – Distinguished
(1) In the case of a tort the duty is fixed by the law, whereas in the case of contract the duty is fixed by the parties involved.
(2) In case of a tort, the duty is towards everyone in the society, whereas in the case of a contract, the duty is towards specific individuals only.
(3) Motive is often taken into account in the case of a tort, while, in the case of a contract, motive is irrelevant.
(4) Damages in the case of a tort are different under different circumstances, whereas, in the case of a contract, the damages are in the form of compensation for the loss suffered in peculiar form.
(5) In the case of a tort, intention is taken into consideration in some cases, whereas, in the case of a breach of contract, intention is irrelevant.
Example : A father who employs a surgeon for the treatment of his minor son, and if his son is injured by the surgeon’s carelessness. Here the father can sue the surgeon for the breach of contract also, as there is no contract between the minor son and the surgeon, the minor son can sue the surgeon(for the careless act which amounts to negligence) in tort and can also put charges on the surgeon but he cannot sue for the breach of contract.
Torts and Breach of trust – Distinguished
(1) In the case of a tort, the compensation is in the form of unliquidated damages, whereas, in the case of breach of trust, the compensation is in the form of liquidated damages.
(2) Law of torts has originated as a part of common law whereas, breach of trust could be redressed in the Court of Chancery.
(3) Law of trust is regarded as a division of the law of property, whereas, law of tort is not regarded as a division of the law of property.
Liquidated damages vs Unliquidated damages
Both of these damages solidifies the plaintiffs right to be compensated. Liquidated damages, on one hand, have their amount of compensation fixed while on the other hand, unliquidated damages have no prior fixed amount, they change with the intensity of the offence committed by the defendant.
The extent of the amount to be compensated in the case of liquidated damages is predetermined whereas in the case of unliquidated damages in order to get the maximum compensation the plaintiff has to prove the extent of the damage he has suffered from.
Tortious liability and mental element
A tortious liability arises when an individual or a person causes any injury to another person’s property, reputation, his life, etc. It is civil in nature and the intention due to which such an injury was caused may or may not be necessary, i.e., it doesn’t matter if it was caused intentionally or by accident in most of the cases in the law of torts. The important thing is to figure out the mental element in order to determine the tortious liability of an individual, and on the basis of intention, tort can be either Intentional tort or unintentional tort.
Intentional tort is one in which the tort is committed with full knowledge of the outcome of the act along with the mental intention to cause such a tort. Having mala fide intention is necessary to commit an Intentional Tort.
Intentional torts are –
- False imprisonment.
- Trespass to land, etc.
Unintentional torts are caused usually by accident or by mistake by the defendant to the plaintiff without any mala fide (Evil or Wrongful) intention towards doing such an act. These are usually committed on the breach of duty of care which a reasonable human being would’ve considered under normal circumstances. Negligence (failure to take proper care over something) is a great example of this kind of tort.
The most common example of Negligence as a civil wrong can be the negligence tort cases of slip and fall which can occur when the owner of a premises fails to take reasonable care to the floor of his property thus leaving water on the floor carelessly which in turn results in harming the individuals whoever enters his premises. Here, the owner of the premises did not intent to harm the visitors at all but due to his carelessness, such an outcome came to be.
Relevance of Intention and Motive
Generally, the motive is the state of mind with intent or a purpose in the mind of an individual while being in the commission of an act. While on one hand, the motive is the ultimate object for which an act is done, the intention refers to the immediate purpose of the act. Now the question arises whether these mental elements play a significant role in the determination of tortious liability or not? In criminal law the concept of mental element plays a significant role in determining the role of a person’s liability but in case of law of tort, mental element does not usually play a significant role, as there are some torts that can be committed without having the intention to do them and the person who still ends up committing these offences still end up being responsible for them, such as in the case of negligence, while on the other hand mental element is necessary in order to prove a person’s liability in the case of Battery, Assault, etc.
Situation of law of Torts in India
- In India, the concept of law of Torts has been there since even before it gained its independence from the Britishers. The Sanskrit word “Jimha” was used in Hindu law in the sense of “tortuous of fraudulent conduct”, the word literally meant “crooked”. Hindu and Muslim laws had compensation assured for certain tortious acts. But even today, in the Modern India, the law of torts is mainly the English law which owes its origin to the principles of the common law of England.
- Although in the Indian courts, before any English law is applied, it is first overlooked whether if it will be applicable in Indian society’s point of view or not. Hence the law of torts is still uncodified( those that originated from sources such as court decisions or customs) in India and is still based on the common law of England.
- The law of torts is underdeveloped in India as most of the people are not at all aware of these due to high amount of unawareness about its existence in our nation, another thing is the fact that not everyone can afford a lawyer and the process of court-work which takes a lot of time as well as a lot of money.
- Still the law of torts play a significant role in the Indian courts as there are many frequent cases of Defamation, Negligence, etc.
It can very well be established from above that, a tort is a civil wrong which is caused when one individual infringes another’s legal rights. And the concept of mental element may or may not be relevant in certain tort as in order to determine it, we would first have to know the nature of the tort committed by the individual. It can be done intentionally like in the case of Battery, as well as accidentally without the intention of committing such an act by performing certain acts carelessly or by accident like in the case of negligence. The situation of Law of tort is not so well as many people are still not aware of the rights that they possess which is due to the fact that there is a lack of awareness among the people, the fact that the law of torts is still uncodified and is a direct derivative of the common law of England makes it less likely to be adaptable in certain cases to the Indian context, although now it has been adapted into the Indian context.