Introduction and Definition of Law of Tort | Legal Reasoning for CLAT PDF Download

What is a Tort?

 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.

• "Tort" Word Derived From: 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.
• Tortfeasor and joint tortfeasors: 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. 
• Tortious Act: 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.

Three primary categories of torts

Example: Violation of a duty to injure someone else's reputation results in the tort of defamation, violation of a duty not to interfere with the possession of the land of another person result in the tort of trespass etc.

Some Important Definitions of Tort

While no specific definition of tort has been possible which could be unanimously agreed by all the thinkers, certain attempts to define tort have been made, and will be listed below:

• Winfield:  Winfield says “Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action or unliquidated damages.”
• Salmond: Salmond says “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 a contract or the breach of a trust or other merely equitable obligation.”
• Black’s Law Dictionary: Black’s Law Dictionary defines a tort as a civil wrong for which a remedy may be obtained, usually in the form of damages.
• Fraser’s Definition: Tort is an infringement of a right in rem (right in general) of a private individual giving a right of compensation at the suit of the injured party.
• Pollock: Pollock says “A tort is an act or omission (not merely the breach of a duty arising out of personal relations, or undertaken by a contract which is related to harm suffered by a determinate person, giving rise to a civil remedy which is not an action of contract.”

Wrong 

• Public wrong: Crime is a Public Wrong. These are acts that are tried in Criminal Courts and are punishable under the Penal Law (such as the Indian Penal Code, 1860 in India)
• Private wrong: Tort is a Private Wrong. These are acts against an individual person or a person within a community and are tried in Civil Courts.

Objective of Torts 

• To determine rights between the parties to a dispute.
• To prevent the continuation or repetition of harm i.e. by giving orders of the 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. 

Nature of Torts

• A tort is a civil wrong: Tort belongs to the category of civil wrong. The basic nature of civil wrong is that in such cases the main remedy is damaged. The plaintiff is compensated by the defendant for the injury caused to him by the defendant.
• Tort and breach of contract: The liability under the law of tort arises from breach of duty fixed by law; while in the case of a contract, the duty is fixed by the parties themselves.
•  In tort, the duty is fixed by law and as such a person may have to pay the penalty or damages for he may not intend to cause any loss, or he may himself have not committed any wrong but is liable for the actions of his servant.
• A tort is redressible by an action for unliquidated damages: Damages is the most important remedy for a tort. This is because, after the commission of the wrong, it is generally not possible to under the arm which has already been caused.
  Damages in the case of a tort are unliquidated. Unliquidated damages are those where the compensation has not been previously determined, but the determination of the same is left to the discretion of the court.

Essentials of a Tort

• There must be some act or omission on the part of the defendant: In order to make a person liable for a tort, he must have done some act which he was not expected to do or must have omitted to do something which he was supposed to do. Similarly, when there is a legal duty to do some act and a person fails to perform that duty, he can be made liable for such omission.
• The act or omission should result in legal damage. Legal damage or injury means infringement or violation of some legal right of the plaintiff.
• It must give rise to a right.

Following two conditions should be satisfied to constitute a tort:

• A “wrongful act”
• Such wrongful act should result in “legal damage”
  As per the Law of Torts, in order to make a person liable for a tort, he must have done some act which he was not expected to do or he must have omitted to do something which he was supposed to do. This implies that the person must have engaged in doing either a positive wrongful act or made an omission which he shouldn’t have, which would have made him liable.

Table 1: Distinction between Tort and Crime.

The distinction between Tort and Breach of Trust

• In case of breach of trust by trustee, the beneficiary can claim such compensation which depends upon the loss that the trust property has suffered. Thus, damages in case of breach of trust are liquidated. On the other hand, damages in a tort are unliquidated. 
• In case of breach of trust, there exists a relationship of trustee and beneficiary between the two, but it is not such tort. Trust is a breach of the law of property, while tort is not.

Two important maxims explain this concept and liability in torts. They are:

• Damnum Sine Injuria
• Injuria Sine Damnum

(i) Damnum Sine Injuria (Damage without injury)

• Damnum means substantial harm, loss or damage in respect of money, comfort, health or the like. Injuria means an infringement of a right conferred by law on the plaintiff or unauthorized interference with the plaintiff’s right.
• Damnum Sine Injuria means damage that is not coupled with an unauthorized interference with the plaintiff’s lawful right. The mere fact that a man suffers a loss by an act of a person gives in itself no cause of action.
• The leading case on the point is: A number of steamship companies combined together and drove the plaintiff company out of the tea carrying trade by offering reduced fright. The house of lords held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extend their trade and increase their profits.

In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles was annoyed by the refusal of Bradford Corporation to purchase his land for their water undertaking. Out of spite, he sank a shaft on his land, which had the effect of discolouring and diminishing the water of the Corporation, which percolated through his land. 

The House of Lords held that the action of Pickles was lawful and no matter how ill his motive might be, he had a right to act on his land in any manner that so pleases him.

(ii) Injuria Sine Damnum (Injury without damage)

• It means a violation of a legal right without causing any harm, loss or damage to the plaintiff. In this, there is no need to prove that as a consequence of an act the plaintiff has suffered any harm the only thing which has to be proved is that the plaintiff’s legal right has been violated, i.e. there is injuria.

Ashby vs White(1703) is a leading case explaining the maxim, injuria sine damnum.

• In this case: A was wrongfully prevented by the returning officer from exercising his vote at a parliamentary election. No loss was suffered by A because the candidate for whom he wanted to vote got elected by a huge margin.
• A would have recovered damages on the ground that his legal right to vote was violated by the returning officer.