Law of Torts

Author-Jahnvi Goel, Amity University, Lucknow

Introduction

One moment you are strolling down the road and the other you unexpectedly slip into a pit left open by the Municipal Corporation. Without glancing around, you stand up quickly to cover up the embarrassment it may have caused. But what can you do? Is there anyone who could be blamed for this? I have sustained injuries so I should be more careful from the next time. However, there was a responsibility of Municipality in this situation. They were negligent in fulfilling their duty. This is what law of torts talks about and much more.

Meaning and definition of Tort

Tort defines its meaning in the word civil wrong. The word Tort means twisted or crooked. It is of French origin and is comparable to the English word wrong. It is often used to define a breach of duty amounting to a civil wrong. Some of the important definitions include Salmond’s who defined Tort as a civil wrong for which the remedy is an action for damages and which is not exclusively the breach of contract or the breach of trust or breach of merely  equitable obligation^[1]. A tort becomes apparent due to an individual’s duty to others in generally which is created by one law or the other. An individual who commits a tort is known as a tortfeaser, or a wrongdoer. They are called joint tortfeaser where they are more than one. Tortuous act is their wrongdoing and they are liable to be sued jointly as well as severally. The main objective of the Law of tort is compensation of sufferer or their dependants. Deterrence of wrong doers is also another objective of the law of tort. Some other important definitions, which throw light on the nature of tort include Winfield’s who described Tort as a Tortious liability which arises from the breach of a duty primarily fixed the law,  this duty is towards the persons generally and its breach is redressible by an action for unliquidated damages. According to Clark and Lindsell, “Tort is a wrong independent of contract for which the appropriate remedy is a common law action."  In addition to, Section 2(m), the Limitation Act, 1963 states that Tort is a civil wrong which is not exclusively a breach of contract or breach of trust.

Why does Tort law exist?

Tort law serves at least three purposes. First, it facilitates compensation for injuries resulting from wrongful conduct. Second, it can deter persons from wrongful behavior that may produce harm. Third, it can provide a way of punishing people who wrongfully injure others.

Development and evolution of law of torts

Tort law evolved in three phases mainly which are the Ancient Era, the Medieval Era, and the Modern Era. Unlike England, there is less tort litigation in India, the reasons include lack of consciousness and awareness  about one’s rights and the spirit of toleration, issue of recognition of the action by courts, and, awarding of very low compensation. Hence, a number of cases of violation of legal right or injury in India like unlawful detention, injury to or the death of people due to adulterated foodstuffs, liquor, medicine, etc., loss due to power cut, noise and other pollutions, etc. are tolerated without bringing an action in a court of law or to a higher authority.

Tort existed in Hindu and Muslim law to deal with wrongful acts but it could be said that tort was formally introduced by the Crown in India. It is primarily based on the principles of equity, justice, and good conscience. The law of torts is based on the principles of ‘common law’ which is generally the English law of torts. The exercise of the law of tort is applied selectively in Indian courts keeping in mind if it suits the elements and situations of Indian society.

Justice Bhagwati in M.C Mehta v. Union of India observed that: “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.”

Nature of Torts

●       Tort and crime:

Initially tort had its roots in criminal procedure. There is a punitive element in some aspects of the rules on damages even today. However, tort is a kind of civil injury or wrong. The nature of the remedy provided by law differentiates civil and criminal wrongs. At times, the same wrong is capable of being made the subject of proceedings of both crime and tort. For example assault, libel, theft, negligence, conspiracy, malicious injury to property etc. in such cases the wrong doer may be penalized criminally and also compelled in a civil action to make compensation or restitution, the victim can sue the wrongdoer under civil liability or initiate criminal proceedings against the offender under criminal law. If a defamatory article about another person has been published in a newspaper, the defamatory publication will demand both criminal prosecution for libel as well as a civil action claiming damages may be taken against him. In P.Rathinam. v. Union of India (Hansaria, 1844, 1994 SCC ), the Supreme Court observed, In a way there is no distinction between crime and a tort, inasmuch as a tort harms an individual whereas a crime is supposed to harm a society. But then, a society is made of individuals. Harm to an individual is ultimately the harm to the society.

●       Tort and contract:

The definition given by P.H. Winfield clearly highlights the distinction between tort and contract. It says, Tortious liability arises from the breach of a duty primarily imposed by law; which is owed to the general public and its breach is redressible by an action for unliquidated damages. On the other hand, A contract is that species of agreement which establishes legal obligation between the parties. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties. According to Salmond, a contract arises out of the exercise of the autonomous and voluntary legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations. At the present day, the key distinction between tort and contract lies in the source of duties in the former are mainly fixed by law while in the latter they are fixed by the parties themselves. Agreement is the basis for all contractual duties and responsibilities.

●       Tort and Quasi-Contract:

Those cases where a person is held liable to another without any agreement is covered by Quasi Contract, for money or benefit received by him to which the other person is better entitled. According to the Orthodox view the judicial basis for the duties and responsibilities under a quasi contract is the existence of a hypothetical contract which is implied by law. However, the Radical view is that the duties and responsibilities in a quasi contract is sui generis and its basis is prevention of unjust enrichment.

Scope of Tort Law

The main purpose of implementing tort law was to use it as a tool to make people to follow the conduct of a reasonable prudent man and to make them respectful towards each other’s rights and obligations. In order to achieve its purpose, law of torts allows the sufferer to claim and demand compensation for the infringement of his legal right. To constitute a tort,

1. There should be commission of wrongful act by a person;
2. The nature of the unlawful act should be such to have a resort to legal remedy and
3. Unliquidated damages should be the legal remedy for the unlawful act caused.

Legal Damage is an important ingredient in constituting a tort. In order to prove an action for tort, the plaintiff has to prove that there was a wrongful act, an act or omission which caused the violation of a legal right vested in the plaintiff. 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 indicated by the maxim, "Injuria sine damnum”, 'Injuria' refers to infringement of a legal right and the term 'damnum' implies substantial harm, loss or damage. 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. This is expressed by the maxim 'Damnum sine injuria’. The detailed discussion of these two maxims is as follows:

• Injuria sine damnum:

This doctrine implies infringement or violation of a legal private right of a person even if no actual loss or damage is evident. In such a case the person whose right is infringed has a good cause of action and such infringements are generally punishable under the law. It is not necessary for him to prove any special damage. Thus, in cases of assault, battery, false imprisonment,  libel etc., the mere wrongful act is actionable without proof of special damage. The court is  bound to award to the plaintiff at least nominal damages if no actual damage is proved. Thus, this maxim provides for, (1) infringement of a legal right of a person. (2) no actual loss or damage is required to prove. (3) infringement of a private right is actionable per se. In Ashby Verses White (Holt CJ, 1703), the plaintiff was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiffs vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won the election. Plaintiff succeeded in his action since there was a violation of his legal right.

• Damnum sine injuria:

This maxim signifies an actual and substantial loss without infringement of any legal  right. In such a case no action lies. There are numerous harms of which loss takes no account and mere loss of money's worth does not by itself constitute a legal damage. There are many forms of harm of which the law takes no account, (1)Loss inflicted on individual traders by competition in trade, (2)Where the damage is done by a man acting under necessity to prevent a greater evil, (3)Damage caused by defamatory statements made on a privileged occasion, (4)Where the harm is too trivial, too indefinite or too difficult of proof, (5)Where the harm done may be of such a nature that a criminal prosecution is more  appropriate for example, in case of public nuisance or causing of death, (6)There is no right of action for damages for contempt of court. In Gloucester Grammar School Case (Hillary, 1410), The defendant, a schoolmaster, set up a rival school to that of the plaintiff. Because of the competition, the plaintiff had to reduce their fees and initiated legal proceedings demanding compensation for the financial loses incurred. Held, the plaintiff had no remedy for the loss suffered by them. Hence, the essential requirement is the violation of a legal right.

Conclusion

Thus to conclude, Tort law has made firm roots in the legal showground and it’s primary aim is to impose liability on parties responsible for the harm, to provide relief to injured parties for harms caused by others, and to serve as a deterrent against wrongful acts. Torts can also shift the burden of loss to the party who is at fault or better suited to bear the burden of loss from the injured party. It also enables citizens to seek redress for the minor and major damage caused to them. Thus, it could be said that Tort has gained much confidence among the laymen in acting as the backbone of civil justice. ^[1] Iyer, S. (1933). The Law of Torts. Harvard Law Review, 46, 882. Hansaria, B. (1844, 1994 SCC ). P.Rathinam vs Union Of India on 26 April, 1994. 394. Holt CJ, P. J. (1703). Ashby v White. 92 ER 126. Hillary, J. Y. (1410). GLOUCESTER GRAMMAR SCHOOL CASE. IV of 47.