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 just 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.
|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.
|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.|
There are three essential elements for an act to be liable under Tort.
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 that he was not expected to do or omitted to do something that he was supposed to do.
Municipal Corp of Delhi vs Subhagvanti AIR 1966 - A clock tower was not in good repairs. It fell and killed several people. MCD was held liable for its omission.
The act or omission of an action must be required by law or the duty must be imposed by law. This means that if an act that is prohibited by law causes harm, it is liable under tort. Similarly, if the omission of an act that is required by law, causes harm, then it is liable under tort. For example, law requires 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. However, 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 required by law. Such duties that are required by law are usually towards all the people in general.
Donaghue vs Stevenson 1932 - Held that the manufacturer of a drink has a legal duty towards the consumers to ensure that noxious substances are not included in the drink.
The act or the omission must result in legal damage or injury i.e. violation of a legal right vested in the plaintiff. This means that the act or omission must cause a damage that is recognized by law as wrongful. For example, a person has a legal right to enjoy his property and if someone throws trash in it, this is a violation of his legal right and is liable under tort. However, it is possible that a legal right is violated without causing any physical or real damage. This is explained in the maxim - Injuria Sine Damno.
Injuria Sine Damno -
Ashby vs White 1703 - The defendant wrongfully prevented the plaintiff from voting. Even though there was no damage, the defendant was held liable.
Bhim Singh vs State of J K AIR 1986 - Plaintiff was an MLA and was wrongfully arrested while going to assembly session. He was not produced before a magistrate within the requisite period. It was held that this was the violation of his fundamental rights. Even though he was release later, he was awarded 50,000RS as exemplary damages by SC.
On 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 Damnum sine Injuria. In such cases, there is no tortious act.
Damnum Sine Injuria -
Glaucester Grammar School’s case 1410 - Defendant opened a rival grammar school in front of an existing one thereby causing the fees of the existing one to be reduced from 40pence to 12 pence. He was not held liable as he did not violate any legal right of the plaintiff.
Ushaben vs BhagyaLaxmi Chitra Mandir AIR 1978 - Plaintiff sought a permanent injunction against the cinema house to restrain them from showing the movie Jai Santoshi Maa. It was contended that the movie depicts the goddesses Laxmi, Saraswati, and Parvati in bad light, which is offensive to the plaintiff. It was held that hurt to religious sentiments is not recognized as a legal wrong. Since there was no violation of a legal right, an injunction was not granted.
Chesmore vs Richards 1879 - Plaintiff had been drawing water from underground for past 60 yrs. The defendant sunk a bore well on his land and drew huge quantity 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.
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.
Harm due to malice - If a person has not caused an injury even if he does an act with malice, he is not liable. In Bradford Corporation (mayor of) vs Pickles 1895, the defendants sunk 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.
4. Legal Remedy - Historically, a person whose legal right was violated was allowed to sue only upon a permission from the King. There were only certain predefined torts for which the king’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. However, now, such a requirement is not there. It has been accepted that there can be many kinds of torts and if a violation of a legal right has happened, the person is enttitled to sue.
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 -
Torts can also be classified according to the type of damage -