MEANING OF TORT
Origin and Etymology
The word tort originates from the Latin term “tortum” which means twisted or crooked. It refers to conduct that is not straight or lawful but rather twisted crooked or unlawful. The term tort is equivalent to the English word “wrong.”
Concept of Tort
A tort is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act. It involves a breach of a civil duty owed to someone else. Torts are differentiated from criminal wrongs that breach public duties owed to the whole community. The primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms. The injured party may sue for an injunction to prevent the continuation of the tortious conduct or for monetary damages.
Nature of Tort Law
Tort law consists of various torts or wrongful acts whereby the wrongdoer violates some legal right vested in another person. It imposes a duty to respect the legal rights of others. A person making a breach of that duty is said to have committed a wrongful act. As crime is a wrongful act resulting from breach of a duty recognized by criminal law likewise tort is a breach of duty recognized under tort law.
Examples of Torts
Some common examples of torts include:
- Defamation – Violation of duty not to injure reputation
- Trespass – Violation of duty not to interfere with possession of land
- Negligence – Violation of duty to take reasonable care
- Nuisance – Violation of duty not to interfere with quiet enjoyment of property
- Deceit – Violation of duty not to defraud another
Difficulty in Defining Tort
No scientific definition of tort has been possible that could mention certain specific elements the presence of which could constitute a tort. The main reason is that different wrongs included under tort have diverse origins and historical backgrounds. Most tortious wrongs originated from writs of trespass and writs of trespass on the case. These writs were responsible for the origin of tort law and many other legal principles.
Ever-Expanding Nature
Tort law is an ever-growing branch of law that has constantly developed. The area covered in its ambit is continuously increasing. New torts continue to emerge to address novel situations and harms in society.
DEFINITIONS OF TORT
Some important definitions that indicate the nature of tort law are:
Limitation Act Definition
“Tort means a civil wrong which is not exclusively a breach of contract or breach of trust” – Section 2(m) of the Limitation Act 1963
Salmond’s Definition
“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.” – Salmond
Winfield’s Definition
“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.” – Winfield
Fraser’s Definition
“It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.” – Fraser
Key Elements in Definitions
The basic elements of tort indicated by these definitions are:
- Tort is a civil wrong (Tort is a wrong of breach of duty towards a person and is different from a criminal wrong).
- Every civil wrong is not a tort. There are other civil wrongs like breach of contract and breach of trust but Tort is distinct from these civil wrongs.
- Tort is actionable for “unliquidated damages” (damages which are not pre-determined).
Negative Approach in Definitions
The various definitions follow a negative approach. They explain tort by either:
- Distinguishing it from other wrongs or
- Mentioning elements found in tort but not in other wrongs
Process of Identifying a Tort
When some wrongful act has been done it must be seen:
- Whether it is civil or criminal wrong
- If civil whether it exclusively belongs to any other category like breach of contract/trust
- If not exclusively any other civil wrong then it is a tort.
TORT AS A CIVIL WRONG
Civil vs Criminal Wrong
Tort belongs to the category of civil wrongs. The basic nature of civil wrong is different from a criminal wrong:
- In civil wrong the injured party (plaintiff) institutes civil proceedings against the wrongdoer (defendant)
- The main remedy is damages – compensation paid by defendant to plaintiff
- In criminal wrong proceedings are brought by the State against the accused
- The victim is not compensated justice is administered by punishing the wrongdoer
Possibility of Both Civil and Criminal Wrong
It is possible that the same act may result in both a crime and a tort simultaneously. In such case both civil and criminal remedies would be concurrently available:
- Civil action requiring defendant to pay compensation
- Criminal action awarding punishment to wrongdoer
For example, in a Defamation case a person can initiate a civil suit for injunction and can also initiate criminal proceedings for the Crime of Defamation.
TORT DISTINGUISHED FROM OTHER CIVIL WRONGS
Tort vs Breach of Contract
Key differences between tort and breach of contract include:
- Source of Duty
- Tort – Duty imposed by law
- Contract – Duty undertaken by parties themselves
- Privity of Duty
- Tort – Duty is towards persons generally
- Contract – Duty only towards other contracting party
- Nature of Damages
- Tort – Always unliquidated damages
- Contract – Can be liquidated or unliquidated damages
- Possibility of Overlap
Sometimes the same fact may result in both breach of contract and tort. For example:
- Railway passenger injured due to negligence of driver
- Breach of contract of safe carriage
- Tort of negligence
- Horse left for safekeeping dies of starvation
- Breach of bailment contract
- Tort of negligence
In such cases plaintiff cannot claim damages twice over. They have choice to sue for either breach of contract or commission of tort.
Tort vs Breach of Trust
Key differences:
- Nature of Damages
- Breach of trust – Liquidated damages (ascertainable loss)
- Tort – Unliquidated damages
- Classification
- Breach of trust – Part of law of property
- Tort – Separate branch of law
- Historical Origin
- Breach of trust – Redressed in Court of Chancery
- Tort – Originated as part of Common Law
Tort vs Quasi-Contract
Key differences:
- Nature of Duty
- Quasi-contract – Duty towards particular person
- Tort – Duty towards persons generally
- Nature of Remedy
- Quasi-contract – Only monetary compensation
- Tort – Damages and other remedies available
- Nature of Compensation
- Quasi-contract – Generally liquidated sum
- Tort – Always unliquidated damages
ESSENTIALS OF TORT
Three essential conditions must be satisfied to constitute a tort:
- Wrongful Act or Omission
There must be some act or omission on part of defendant. Either:
- A positive wrongful act
- An omission which is illegally made
Examples:
- Act of trespass
- Publishing defamatory statement
- Wrongful detention of person
- Failure to fence dangerous area in public park
The wrongful act/omission must be one recognized by law. Mere moral or social wrong is not sufficient.
- Legal Damage (Injuria)
There must be violation of a legal right vested in the plaintiff. Two aspects:
- Violation of legal right (injuria)
- Actual loss or harm (damnum) may or may not be present
Two maxims explain this:
Injuria Sine Damno
- Violation of legal right without actual loss/damage
- Actionable in tort law
Damnum Sine Injuria
- Actual loss/damage without violation of legal right
- Not actionable in tort law
The real test is whether a lawful right of plaintiff has been violated not whether plaintiff has suffered any loss.
- Action for Unliquidated Damages
There are two types of damages on the basis of “when they are determined”:
- Liquidated Damages: These are pre-determined as these can be anticipated in advance before the commission or civil wrong itself. These maybe be agreed by parties before the wrong is committed.
- Unliquidated Damages: These are determined after the commission of civil wrong and after suffeting legal injury as these cannot be pre-determined and cannot be anticipated in advance.
For any Tort unliquidated damages can be claimed which are determined by Court.
IMPORTANT CASE LAWS
Ashby v White (1703)
Facts: Plaintiff was wrongfully prevented from voting in parliamentary election. Candidate he wanted to vote for won anyway.
Held: Defendant liable as plaintiff’s legal right to vote was violated even though no actual loss suffered.
Principle: Injuria sine damno – violation of legal right is actionable even without proof of actual damage.
Gloucester Grammar School Case (1410)
Facts: Defendant set up rival school causing plaintiffs to reduce fees. Plaintiffs suffered financial loss.
Held: Defendants not liable as they had not violated any legal right of plaintiffs.
Principle: Damnum sine injuria – mere loss without violation of legal right is not actionable.
Bradford Corporation v Pickles (1895)
Facts: Defendant maliciously dug well on his land diverting water from plaintiff’s land.
Held: Defendant not liable as he was exercising his lawful right over his own property.
Principle: A lawful act does not become unlawful due to malicious motive.
MISTAKE IN FACT AND MISTAKE IN LAW
Mistake in fact and mistake in law are important legal concepts that can affect liability in both criminal and civil cases. A mistake of fact occurs when a person has an incorrect understanding of the factual circumstances surrounding their actions. In contrast a mistake of law happens when someone misunderstands or is ignorant of the applicable law. These distinctions are crucial as they can impact legal culpability and potential defenses.
Types of Mistakes in Law
There are two main categories of legal mistakes:
- Mistake of fact: This involves an erroneous belief about the factual circumstances of a situation.
- Mistake of law: This refers to ignorance or misunderstanding of the applicable legal rules or obligations.
Mistake of Fact
A mistake of fact arises when someone acts based on an incorrect understanding of the factual circumstances. This type of mistake can potentially negate the mental state required for certain offenses. For a mistake of fact to serve as a valid defense it must generally be both honest and reasonable.
Key elements of mistake of fact:
- The mistaken belief must relate to the facts not the law
- The mistake must be genuine and held in good faith
- The mistake must be reasonable under the circumstances
- If the mistake negates the required mental state it may serve as a defense
Examples of mistake of fact:
- Taking someone else’s property believing it to be your own
- Engaging in intimate relations with a minor believing they were of legal age
- Shooting at a person thinking they were an intruder when it was actually the homeowner
The case of R v. Williams (1923) illustrates the concept of mistake of fact. Williams honestly believed the woman he had sexual intercourse with was his wife. The court held that his genuine mistake of fact negated the mens rea for rape even though his belief was unreasonable. This case established that an honest mistake could serve as a defense even if unreasonable.
In People v. Hernandez (1964) the California Supreme Court ruled that a reasonable and good faith belief that a sexual partner was over the age of consent could serve as a defense to statutory rape. This case recognized mistake of fact as a potential defense even for strict liability offenses.
Mistake of Law
A mistake of law occurs when someone misunderstands or is unaware of the applicable legal rules or obligations. Generally ignorance or mistake of law is not accepted as a defense. The principle “ignorantia juris non excusat” (ignorance of the law is no excuse) reflects this stance. However there are some limited exceptions.
Key aspects of mistake of law:
- Usually not accepted as a defense in criminal or civil cases
- Based on the presumption that everyone knows the law
- Can sometimes be a mitigating factor in sentencing
- May be a defense in rare cases involving complex regulations
- Exceptions where mistake of law may be considered:
- Reliance on official statements of law later determined to be incorrect
- Laws that are not published or reasonably accessible
- Specific intent crimes where mistake negates the required mental state
- Some regulatory offenses with complex legal requirements
In Cheek v. United States (1991) the Supreme Court held that a genuine good faith belief that one was not violating tax laws could negate the willfulness required for criminal tax evasion. This case created a limited exception to the general rule that ignorance of the law is no excuse.
The case of Lambert v. California (1957) involved a municipal ordinance requiring felons to register. The Supreme Court ruled that the defendant’s lack of knowledge of this duty combined with the passive nature of her conduct violated due process. This case recognized that in some circumstances ignorance of legal duties may be a valid defense.
Comparison / Difference Between Mistake of Fact and Mistake of Law
While both involve errors in understanding mistake of fact and mistake of law have key differences:
Mistake of Fact:
- Relates to misunderstanding factual circumstances
- Can often serve as a defense if honest and reasonable
- May negate mens rea for many offenses
- Assessed based on the defendant’s actual beliefs
Mistake of Law:
- Involves misunderstanding legal rules or obligations
- Generally not accepted as a defense
- Based on the presumption that everyone knows the law
- Has very limited exceptions in specific circumstances
MENTAL ELEMENT IN TORTIOUS LIABILITY
Meaning and Relevance of Mental Element
Mental element refers to the state of mind of the defendant when committing a tortious act. Unlike criminal law where mens rea is generally essential mental element is not always relevant in tort law. The relevance of mental element varies across different torts.
Fault-Based Liability vs Strict Liability
Tortious liability can be broadly classified into fault-based liability and strict liability. In fault-based torts mental element like intention negligence or malice is relevant. However in strict liability torts mental element is irrelevant.
Fault-Based Torts
In many torts mental element is crucial for establishing liability. Some key fault-based torts include:
- Assault and Battery: Intention to cause apprehension of harmful contact or actual harmful contact is required.
- False Imprisonment: Intention to confine the plaintiff unlawfully must be proved.
- Malicious Prosecution: Malice and absence of reasonable cause are essential elements.
- Defamation: Intention to publish defamatory statement is necessary though malice is not required.
- Negligence: Breach of duty of care owed to plaintiff must be proved though intention to cause harm is not required.
In these torts plaintiff has to establish fault on part of the defendant to succeed in the claim.
Strict Liability Torts
Some torts impose liability without proof of fault. Key strict liability torts are:
- Rule in Rylands v Fletcher: Defendant is liable for escape of dangerous things collected on land irrespective of fault.
- Vicarious Liability: Employer liable for torts of employee committed during course of employment without proving employer’s fault.
- Liability for Animals: Owner liable for harm caused by dangerous animals without proof of negligence.
- Product Liability: Manufacturer liable for defective products without proving negligence.
- Nuisance: Interference with plaintiff’s use and enjoyment of land is actionable without proving intention or negligence.
In these torts defendant’s mental state is irrelevant and liability arises from the act itself.
Intentional Torts
Some torts require proof of intention as mental element. Intention implies desire to bring about consequences of the act. Key intentional torts are:
- Trespass to person (assault battery false imprisonment)
- Trespass to land and goods
- Conversion
- Deceit
- Malicious prosecution
In these torts plaintiff must prove defendant intended the consequences though motive is irrelevant.
Motive and Malice
Motive refers to ulterior reason for defendant’s conduct. As per general rule motive is irrelevant in tort law. A good motive does not excuse a wrongful act. Similarly a bad motive does not make a lawful act tortious.
This principle was established in Bradford Corporation v Pickles [1895]. Defendant’s motive of extracting higher price for his land was held irrelevant as his act of digging on his own land was lawful.
Malice means improper motive or intention to cause harm. It is relevant only in limited torts like malicious prosecution and abuse of process. In most torts presence or absence of malice does not affect liability.
Exceptions Where Motive is Relevant
In some exceptional situations motive becomes relevant:
- In qualified privilege defamation cases malice defeats the defence
- In conspiracy improper motive is an essential element
- In nuisance cases malicious conduct may make an otherwise lawful act tortious
- Presence of malice may lead to aggravated damages
Negligence as Mental Element
Negligence is the most common basis of tortious liability. It refers to breach of duty of care owed to plaintiff. Key elements are:
- Existence of duty of care
- Breach of that duty
- Damage caused by the breach
Standard of care is that of a reasonable person. Intention to cause harm is not required. Carelessness or inadvertence resulting in breach of duty is sufficient.
Knowledge as Mental Element
In some torts knowledge of certain facts is relevant for liability. For instance:
- In defamation knowledge of falsity of statement is relevant
- In nuisance knowledge of interference is required
- For liability of occupier knowledge of danger on premises is relevant
Reasonable foreseeability of harm is also based on defendant’s knowledge.
Mental Incapacity
Insanity or mental incapacity does not provide general defence in tort law unlike criminal law. Mentally incapacitated persons are liable for their torts subject to some exceptions:
- In intentional torts lack of capacity to form intention may be relevant
- In negligence inability to meet standard of care due to incapacity may be considered
Children below certain age are deemed incapable of negligence in some jurisdictions.
Statutory Liability
Some statutes impose civil liability without requiring proof of mental element. For instance motor vehicle and workmen’s compensation laws provide for no-fault liability. Mental state of defendant is irrelevant in such statutory liability cases.
IMPORTANT CASE LAWS
Rylands v Fletcher (1868)
This landmark case established the rule of strict liability in tort law. The facts were:
- Defendants constructed a reservoir on their land
- Water escaped and flooded plaintiff’s coal mines
- No negligence was proved against defendants
The House of Lords held defendants liable without proof of fault. It laid down the principle that a person who brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril.
This case is significant as it created an exception to fault-based liability in tort law. Mental element of the defendant was held irrelevant for imposing liability.
Donoghue v Stevenson (1932)
This case established the modern concept of negligence. The key facts were:
- Plaintiff consumed ginger beer from an opaque bottle
- She found a decomposed snail in the bottle and fell ill
- She sued the manufacturer for negligence
The House of Lords held the manufacturer owed a duty of care to the ultimate consumer. Lord Atkin propounded the ‘neighbour principle’ stating:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
This case is significant as it made negligence an independent tort and established duty of care as the basis of liability rather than intention to cause harm.
Bradford Corporation v Pickles (1895)
This case dealt with relevance of motive in tort law. The facts were:
- Defendant sank shafts on his land which diverted underground water
- This reduced water supply to plaintiff corporation’s reservoirs
- Defendant’s motive was to force corporation to purchase his land at high price
The House of Lords held defendant was not liable as he had legal right to sink shafts on his land. His improper motive was held irrelevant.
This case established the principle that motive is generally irrelevant in tort law. A lawful act does not become unlawful due to malicious intention.
Wilkinson v Downton (1897)
This case created the tort of intentional infliction of emotional distress. The facts were:
- Defendant falsely told plaintiff her husband was badly injured in an accident
- This caused plaintiff to suffer severe shock and illness
The court held defendant liable for intentionally causing nervous shock. It was held that intention to cause physical harm can be imputed if consequences were likely and foreseeable.
This case is significant as it recognized mental harm as actionable damage and expanded scope of intention in tort law.
Allen v Flood (1898)
This House of Lords decision dealt with intentional interference with trade. The key facts were:
- Defendant union official threatened shipyard to dismiss plaintiffs
- Plaintiffs were dismissed and sued for malicious interference
The majority held defendant was not liable as he had not employed any unlawful means. His motive was held irrelevant.
This case reinforced the principle that motive alone cannot make a lawful act tortious. It also clarified limits of economic torts.
M.C. Mehta v Union of India (1987)
This Indian Supreme Court case dealt with absolute liability for hazardous industries. The facts were:
- Oleum gas leaked from defendant’s plant causing harm
- Traditional exceptions to strict liability were pleaded
The court rejected exceptions and held hazardous industries absolutely liable for harm caused. Mental element was made completely irrelevant.
This case created a new standard of absolute liability stricter than Rylands v Fletcher rule for hazardous industries in India.
Wagon Mound (No. 1) (1961)
This Privy Council case dealt with remoteness of damage in negligence. The facts were:
- Defendants negligently spilled oil in a harbor
- Oil caught fire after many hours causing damage to plaintiff’s wharf
The court held defendants liable only for foreseeable damage. Unforeseeable fire damage was held too remote.
This case replaced direct consequence test with reasonable foreseeability test for remoteness. It made defendant’s knowledge and mental state relevant for extent of liability in negligence.
