This article is written by Bidisha Datta of 2nd year of BA LLB of Department of Law, University of Calcutta, an intern under Legal Vidhiya
ABSTRACT
Tort and the Law of Torts is a very important subject taught in law schools. It aims to make good the loss suffered by a person due to the intentional or unintentional fault of someone else. Though not very in vogue in India, many Courts have taken the stand that the prevalence of the law of torts is important in India and is conducive to the growth of society. It provides a way to hold those who cause harm responsible and discourage others from making the same mistake. It is a branch of law which is civil in nature. It was introduced in India by the British in the colonial era. It is an uncodified law.
Keywords: Tort, damages, compensation, intentional, negligence, wrong, civil
INTRODUCTION
A tort is a civil wrong where there is a violation or infringement of the legal rights of an individual or group of individuals. It is a private wrong that forms a ground for lawsuits to compensate an aggrieved party for any damage or injuries suffered. The law of torts in India has developed and evolved from the law of torts in the English common law. It is not a codified law and is not supported by any statute. It has been mainly derived from judicial precedents in the United Kingdom.
ETYMOLOGY
The term ‘tort’ in English means ‘wrong’ or ‘injury’. It was derived from the medieval Latin word ‘tortum’ which means ‘wrong’ or ‘injustice’, which was further derived from the neuter past participle of Latin ‘torquere’, meaning ‘to twist’. It was first used in 1586.[1]
MEANING
Tort law focuses on interpersonal wrongdoings between private persons. A tort is an action or omission or conduct of a person that causes injury or harm to another and amounts to a civil wrong for which Courts can impose liability. According to the law of torts, liability imposed can only be in the form of unliquidated damages as compensation, as opposed to breach of contracts, where damages are usually in the form of liquidated damages. It is assessed by the Courts of law on the happening of harm or injury caused to the aggrieved party, based on the degree of loss suffered. Suits can also be brought for injunctions, in which the Courts may compel the wrongdoer to cease an activity which is prejudicial to the aggrieved party. An individual who commits tort is called a tortfeasor, and if there are more than one person committing tort, they are called joint tortfeasors, who can be sued jointly or severally.
DEFINITIONS
There has been no strict and complete definition of tort, neither in English law nor in civil law. But an attempt at definition given by some thinkers are:
According to John Salmond, “It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.” (Bangia)[2]
According to Richard Dien Winfield, “Tortious liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” (Bangia)[3]
According to Fraser, “A tort is an infringement of a right in rem of a private individual giving a right to compensation at the suit of the injured party.” (Bangia)[4]
According to Section 2(m) of the Indian Limitation Act 1963, “ Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.” (The Indian Limitation Act 1963)[5]
According to Sir Fredrick Pollock, “The law of torts in civil wrongs is a collective name for the rules governing many species of liability which, although their subject-matter is wide and varied, have certain broad features in common, are enforced by the same kind of legal process and are subject to similar exceptions.” (Pollock)[6]
ESSENTIALS
- Tort is a civil wrong:
Tort is a civil wrong where infringement of legal right occurs. The plaintiff can institute civil proceedings against the wrongdoer. The main remedy in such proceedings is damages, where the plaintiff is compensated by the defendant for the injury caused to him by the defendant. In certain cases, the same act done by the same person can result in both a crime and a tort at the same time. Assault, defamation, theft, trespassing etc. are examples of such common wrongs. In case of defamation, the aggrieved party can sue the wrongdoer in a criminal prosecution under Section 500 of IPC and also institute civil proceedings for recovery of damages caused to his reputation by such defamation.
- Breach of legal duty:
The law imposes a duty to respect the legal rights of others, and the person making a breach of that duty is said to have committed a tort. Similarly, a tort is a breach of duty recognized under law of torts. The law imposes an obligation on every individual to exercise a reasonable level of care when partaking in activities that could potentially cause harm to others. To institute a legal case, it is necessary to establish that the tortfeasor owed a duty of care to the aggrieved party and that this duty was breached. The duty of care is imposed by law and does not require a direct relationship between the tortfeasor and the injured party. In the case of Glasgow Corporation v. Taylor (Glasgow Corporation v. Taylor, 1922)[7], a corporation failed to erect proper fencing to keep children away from a poisonous tree. As a result, a child plucked and consumed fruits from the poisonous tree and died. The corporation could be held liable for this omission.
- Wrongful act or omission:
A wrongful act can be morally or legally wrong or both. To constitute a tort, the act committed or omitted must be legally wrong. An act is considered unlawful only when it contravenes any legal provision. Furthermore, the wrongful act must cause any harm or injury to the aggrieved party. For example, a person stopping someone from voting is said to be a tort, as it violates the legal right of that person ( Ashby v. White ) (Ashby v. White, 1703)[8]. In Bhim Singh v. State of Jammu and Kashmir (Sri Bhim Singh v. State of Jammu and Kashmir, 1986)[9], the complainant, who was a Member of Parliament, was stopped from entering the premises of the Assembly election by a police constable, hence his legal right was infringed.
- Tort is other than breach of contract or breach of trust:
Tort is that civil wrong which is not exclusively any other kind of civil wrong. If the only wrong is a breach of contract or breach of trust, then it is not a tort. Thus, if a person agrees to purchase a radio set, and thereafter fails to perform his obligation, then it is only a breach of contract. To understand if an act is a tort or not, we have to see if it is civil or criminal. If it is a civil wrong, it has to be further seen if it exclusively belongs to a recognized category of civil wrong. If it is found that it is not a breach of contract or trust or any other particular civil wrong, it is a tort. There is a possibility that an act may constitute two or more civil wrongs, one of which may be a tort. For example, if A delivers a horse to B for safekeeping, and B allows the horse to die of starvation, B commits both breaches of the contract of bailment and the tort of negligence. Since both are civil wrongs and the damages is the main remedy for any civil wrong, the plaintiff can claim damages either under the law of torts for negligence or for the breach of contract of bailment. He cannot claim damages twice.
- Remedy available in the form of unliquidated damages:
The remedies available in the case of torts are only in the form of unliquidated damages, i.e., damages that are not pre-determined between the parties, and such determination of damages is at the discretion of the Court. This is because generally the parties are not known to each other before a tort has been committed, and it becomes difficult to ascertain the losses suffered by the plaintiff or aggrieved party. The unliquidated damages to be paid are usually in monetary form because, after the commission of tort, it is generally not possible to undo the harm that is already caused and can only be compensated. Other remedies available are in the form of injunctions, where the Court may order the tortfeasor to abstain from committing a tort. This is relevant in the case of nuisance where the tortfeasor unreasonably and substantially interferes with the plaintiff’s property or his use of the property. The Court may also order for specific performance of a legal duty of the defendant.
TYPES
Torts are mainly of three types:
- Intentional Torts
- Negligent Torts
- Strict Liability Torts
- Intentional Torts: An intentional tort occurs when the tortfeasor knowingly intends to cause harm to someone else. This can be in the form of physical injury as well as emotional distress. It can also be applied to cases where intentional damage to property occurs. Examples of intentional torts include:
- Assault: In tort law, assault means threatening or attempting to harm another person, but not actually touching them.
- Battery: While assault is a threat of violence, a battery occurs when actual violence is done and there is physical contact with another person. The contact can be harmful or offensive. Someone who commits battery can be sued on both civil and criminal charges. For civil battery, three elements must be included — contact, intent and harm, which can be emotional or physical in nature.
- False Imprisonment: If someone restricts another person from moving freely, then that act can be classified as false imprisonment. The plaintiff has to prove unlawful detention without the consent of the plaintiff in order to bring a claim. This can include hostage situations or if someone arrests a person illegally. False imprisonment can be physical by using restraints) or through unreasonable duress or coercion.
- Trespass to Land: This occurs when someone intentionally comes onto or barges into someone else’s property. In these cases, the plaintiff must show that the trespass happened without their permission or consent. However, this does not apply to postal workers or police officers, as they have implied consent to be on a property, which is given through a warrant. Frequently, the cases of trespass that are litigated involve damage to the property. However, if there is no damage and the plaintiff only wants the trespassing to stop, the plaintiff can ask for an injunction.
- Defamation: It is a deliberate attempt to ruin or damage a person’s reputation and right to live with dignity by false miscommunication, in words spoken or written. The aggrieved party whose reputation is so harmed can claim for damages, if he can prove that the words spoken or written about him are false.
- Negligent Torts: Negligent torts do not involve deliberate actions. It occurs when a person fails to act carefully enough, and another person is harmed because of that. For this, a person must owe a duty to another person, and fail to take reasonable care. For example, a driver has a legal duty to drive at a reasonable speed. If he overspeeds, and someone gets hurts because of his rash driving, then he has committed a negligent tort.
Other examples of negligent torts are medical malpractice, slip and fall accidents, road accidents etc.
- Strict Liability Torts: It applies to cases where liability can be imposed on the defendant even if he intentionally did not commit any wrong and had taken reasonable care to fulfil his duty. The aggrieved party has the right to claim damages without proof of the defendant being directly involved in an act or acting negligently. The only proof required is to show that harm has occurred to the plaintiff. For example, if a company sells a defective product, and the buyer is harmed in some way because of that defective product, the company will be held liable.
OBJECTIVES
The various objectives for the institution of the law of torts are:
- Seeks to compensate victims for injuries suffered by culpable action or inaction of others.
- Shift the cost of injuries to the person legally responsible for inflicting them.
- Seeks to discourage injurious and careless behaviour.
- Prevents continuation or repetition of harm by way of injunction.
- Protects the legal rights of a person.
DEVELOPMENT OF LAW OF TORTS
Torts and crimes in Common law originated in the Germanic system of fines with no clear difference between crime and other wrongs. In Anglo-Saxon law, most wrongs required pecuniary compensation paid to the wronged person or their clan. Fines were paid in the form of wīte (literally ‘blame, fault’) to the king or holder of a court for disturbances of public order, while the fine of weregild was imposed on those who committed murder. Some wrongs in later law codes were botleas, i.e., ‘without remedy’ ( For example, theft, open murder, arson, treason against one’s lord), that is, unable to be compensated, and those convicted of a botleas crime were at the king’s mercy. After the Norman Conquest, fines were paid only to courts or the king and quickly became a revenue source. A wrong became known as a tort or trespass, and there arose a division between civil pleas and pleas of the crown. The trespass action was an early civil plea in which damages were paid to the victim and if no payment was made, the defendant was imprisoned. It arose in local courts for breach of contract, slander or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so in the 1250s the writ of trespass was created and made de cursu (available by right, not fee).[10] (htt)
In India, the origin of torts was due to the English colonial invasion and dates back to the Charter of 1726. Under the Charter of 1726, the English Courts were established in three presidencies i.e., Bombay, Calcutta, and Madras which were known as ‘Mayor Courts’. These courts were working under Common law in India and the Common law was made applicable. In the application of common law, the principles of equity, justice, and good conscience were being followed. The law of torts was considered an inseparable part of the common law. This was made applicable in India, but due care was taken that it applied as per the conditions, customs, and traditions of India.
In the case of Naval Kishore v. Narendranath & Others, it was stated that the rules of law of torts of England should be made applicable as per the Indian atmosphere, that is, corresponding to the traditions and customs of it.
Though the law of torts is not much in vogue in India and is not backed by any statute, there are a few cases in the Indian context which has recognized the importance of the law of torts. For example, in M.C. Mehta v. Union of India (M.C. Mehta v. Union Of India, 1987)[11], Justice Bhagwati said, “We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence”.
It has also been held that section 9 of The Code of Civil Procedure[12], which enables the Civil Court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as principles of justice, equity and good conscience. Thus, the Court can draw upon its inherent powers under Section 9 for developing this field of liability.
In a more recent judgement of Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat (Jay Laxmi Salt Works (P) v. State of Gujarat , 1994)[13], Sahai, J., observed: “Truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortious liability by court would be conducive”.
CONCLUSION
Thus, we can conclude that the law of torts is a branch of law that mainly seeks to redress civil wrongs committed by a person by pecuniary compensation. This compensation is in the form of unliquidated damages which is determined by the Courts of Law. Any Court having jurisdiction to try civil cases can try cases on torts too. Torts can be intentional, or negligent or liability can be imposed even if the wrong was not intentional or negligent in some cases. It is only pertinent to prove that the harm has been caused to the plaintiff by the defendant. Torts are distinguished from exclusive types of civil wrongs. It was introduced in India by the British and is still not in much practice because of a lack of general awareness, the fact that it is an uncodified law and is directly derived from English Common Law, which often makes it difficult to implement in the Indian context.
[1] Merriam Webster
[2] R K Bangia: Law of Torts Pg 4
[3] R K Bangia: Law of Torts Pg 4
[4] R K Bangia: Law of Torts Pg 4
[5] The Indian Limitation Act 1963
[6] Pollock: Law of Torts 11th Edition
[7] Glasgow Corporation v. Taylor [1922] 1 AC 44, 61
[8] Ashby v. White [1703] 92 ER 126
[9] Sri Bhim Singh v. State of Jammu and Kashmir Ors. AIR 1986 SC 494
[11] M.C.Mehta v. Union of India and Ors. 1987 SCR (1) 819
[12] The Code of Civil Procedure
[13] Jay Laxmi Salt Works (P) Ltd v. State of Gujarat 1994 SCC (4) 1
0 Comments