Basics of Tort

Meaning: 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 antisocial 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 ust ibi remedium" implies. !here ever there is a right, there is a remedy. Indeed, a right has no value if there is no way to enforce it. "uch rights of individuals primarily originate from two sources contractual obligations and inherent rights that are available to all the citi#ens against every other citi#en, a$a rights in rem. !hile 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. "uch 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. &e is, thus, doing a wrong and even though there is no contract between the two, one can sue him for damages. Definitions: 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. &owever, the following are some definitions from the experts -

Salmond - ' tort is a civil wrong for which the remedy is action in common law for unli(uidated damages and which is not exclusively a breach of contract or breach of trust or other e(uitable 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 unli(uidated 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 in ured 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 in ured 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. &owever, 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 ma$e sure that it is a civil wrong. !e should then ma$e sure that it is )*T a breach of contract or breach of trust.

&istorically, crime and tort originated from the same root. +ater 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 unli(uidated and are decided only by the common sense of the courts. The following differences between Tort and ,rime and Tort and -reach of ,ontract, 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 ' breach of contract occurs due to the persons in general .right in rem/ is a breach of a duty .right in violated without the existence of any persona/ agreed upon by the parties contract. themselves. 0ictim is compensated for unli(uidated 0ictim is compensated as per the damages as per the udgment of the udges. terms of the contract and damages Thus, damages are always unli(uidated. 1uty is fixed by the law of the land and is towards all the persons. 1octrine of privity of contract does not apply because there is no contract between *nly the parties within the privity the parties. This was held in the case of contract can initiate the suit. of Donaghue vs Stevenson 19 !. Tort applies even in cases where a contract !hen a contract is void, there is no are usually li(uidated. 1uty towards each other is affixed by the contract agreed to by the parties.

(uestion in Tort. 2ustice is met by compensating the victim for his in ury and exemplary damages may also be awarded to the victim. In Bhim Singh vs State of " # $%& 19'( - the plaintiff was awarded exemplary damages for violation of his rights given by art 34. 2ustice loss.

of

compensation.

For

is void. For example, a minor may be liable example, a contract with a minor is void ab initio and so a minor cannot be held liable for anything.

is

met

only

by

compensating the victim for actual

In the case of Donaghue vs Stevenson 19 !, ' purchased ginger beer in a restaurant for his woman friend. "he dran$ a part of it and poured the rest into a glass. Thereby, she saw a dead snail in the drin$. "he sued the manufacturer. It was held that the manufacturer had a duty towards the public in general for ma$ing sure there are no noxious things in the drin$ even though there was no contract between the purchaser and the manufacturer.

The same principal was applied in the case of #laus Mittelbachert vs )ast %ndia *otels +td $%& 199,. In this case, +ufthansa 'irlines had a contract with &otel *beroi Intercontinental for the stay of its crew. *ne of the co-pilots was staying there too$ a dive in the pool. The pool design was defective and the person%s head hit the bottom. &e was paraly#ed and died after 45 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. &e 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 67+acs as exemplary damages.

Distinction between Tort and Crime

Tort

Crime Tort occurs when the right

Tort occurs when the right available to all the available to all the persons in persons in general .right in rem/ is violated general .right in rem/ is violated without the existence of any contract. and it also seriously affects the society. 'ct is comparatively less serious and affects only the person. 'ct is comparatively more serious and affects the person as well as the society. Intention is the most important Intention is usually irrelevant. element in establishing criminal liability. ' crime cannot happen without 8ens 9ea. It is a private wrong. It is a public wrong. "ince it is a private wrong the wronged "ince it is a public wrong, the individual must file a suit himself for damages. suit is filed by the govt. The suit is for damages. ,ompromise is possible between the parties. For example, a person who has been defamed, can compromise with the defamer for a certain sum of money. ,ompounding is possible. The suit is for punishment. There is no compromise for the punishment. For example, if a person is guilty of murder, he cannot pay money and reduce his sentence. ,ompounding is generally not

possible. 2ustice is met by compensating the victim for his in ury and exemplary damages may also be awarded to the victim. In Bhim Singh vs State of " # $%& 19'( - the plaintiff was awarded exemplary damages for violation of his rights given by art 34. Tortious acts are usually not criminal acts. 2ustice is met by punishing the aggressor by prison or fine. In some specific cases as given in I:, compensation may be given to the victim. "everal criminal acts such as assault and battery are also grounds for tortious suit.

%ngredients of Tort -Conditions that must be satisfied before a liabilit. in Tort arises/0

There are three essential elements for an act to be liable under Tort. 1/ Wrongful act or omission - 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.

Munici1al Cor1 of Delhi v/ Subhagvanti $%& 19(( - ' cloc$ tower was not in good repairs. It fell and $illed several people. 8,1 was held liable for its omission.

!/ Dut. im1osed b. law - The act or omission of an action must be re(uired 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. "imilarly, if the omission of an act that is re(uired by law causes harm, then it is liable under tort. For example, law re(uires 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. &owever, 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 re(uired by law. "uch duties that are re(uired by law are usually towards all the people in general. Donaghue vs Stevenson 19 ! - &eld that the manufacturer of a drin$ has a legal duty towards the consumers to ensure that noxious substances are not included in the drin$.

/ %n2ur. -+egal Damage0 3 The act or the omission must result in legal damage or in ury i.e. violation of a legal right vested in the plaintiff. This means that the act or omission must cause a damage that is recogni#ed by law as wrongful. For example, a person has a legal right to en oy his property and if someone throws trash in it, this is a violation of his legal right and is liable under tort. &owever, it is possible that a legal right is violated without causing any physical or real damage. This is explained in the maxim - In uria "ine 1amno.

%n2uria Sine Damno $shb. vs White 1,4 - The defendant wrongfully prevented the plaintiff from voting. ;ven though there was no damage, the defendant was held liable.

Bhim Singh vs State of " # $%& 19'( - :laintiff was an 8+' and was wrongfully arrested while going to assembly session. &e was not produced before a magistrate within the re(uisite period. It was held that this was the violation of his fundamental rights. ;ven though he was release later, he was awarded 9s. 67,777 as exemplary damages by "upreme ,ourt.

*n 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 1amnum sine In uria. In such cases, there is no tortious act.

Damnum Sine %n2uria

5laucester 5rammar School6s case 4<47 - 1efendant opened a rival grammar school in front of an existing one thereby causing the fees of the existing one to be reduced from <7pence to 43 pence. &e was not held liable as he did not violate any legal right of the plaintiff.

7shaben vs Bhag.a+a8mi Chitra Mandir $%& 19,' - :laintiff sought a permanent in unction against the cinema house to restrain them from showing the movie 2ai "antoshi 8aa. It was contended that the movie depicts the goddesses +axmi, "araswati, and :arvati in bad light, which is offensive to the plaintiff. It was held that hurt to religious sentiments is not recogni#ed as a legal wrong. "ince there was no violation of a legal right, an in unction was not granted.

Chesmore vs &ichards 1',9 - :laintiff had been drawing water from underground for past =7 yrs. The defendant sun$ a bore well on his land and drew huge (uantity 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.

*arm due to negligence - ' person is not liable in tort even if he causes harm due to negligence but does not cause in ury. In Dic9son vs &euter6s Telegram Co 1',,: the defendant company delivered a telegram that was not meant for the plaintiff to the plaintiff. -ased on the telegram, the plaintiff supplied some order which was not accepted by the sender of the telegram. :laintiff 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. &ence they were not liable.

*arm due to malice - If a person has not caused an in ury even if he does an act with malice, he is not liable. In -ma.or of0 Bradford Cor1oration vs ;ic9les 1'9<, the defendants sun$ 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. 'lso see ;rabhu Da.al v/ Town $rea Committee.

=/ +egal &emed. 3 &istorically, a person whose legal right was violated was

allowed to sue only upon permission from the >ing. There were only certain predefined torts for which the $ing%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.

&owever, now, such a re(uirement is not there. It has been accepted that there can be many $inds of torts and if a violation of a legal right has happened, the person is entitled to sue.

#inds of Torts

's mentioned before there can be innumerable type of acts that violate the legal right of others. The law of tort is therefore ever evolving. )ew ways in which the rights are violated, come to light everyday. &owever, they can be classified on the basis of way of incurrment of liability into the following three categories? 4. Intentional - !rongful 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.

3. )egligent ,onduct - !rongful acts that are done without any intention but because of not ta$ing proper care that is re(uired by law fall into this category.

5. "trict +iability - 'cts that are neither done intentionally nor do involve any negligence, but still cause an in ury to other are liable under the concept of strict liability as propounded in &.lands vs Fletcher. In strict liability cases, the defendant is liable even if it acted reasonably. There are 5 types of strict liability cases? 1/ $eeping 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 1/ :hysical Torts - ,ausing physical hurt to body such as assault, battery. It can happen with intention or even with negligence.

!/ 'bstract Torts - ,ausing damage to mind or reputation such as defamation.

/ Tort involving property - For example, Trespass to land.

=/ Tort involving legal right - For example, false imprisonment.

</ )uisance - ,ausing unreasonable restriction towards exercise of one%s legal right.