What is a Tort?
"Tort" comes
from the Latin word "tortum," which meaning "twisted or
wrong." A tort, as defined by law, is a civil wrong that causes harm or
loss to another person and makes the offender legally accountable.
Put more simply, tort law
addresses cases in which one part’s acts cause another to suffer wrongful harm,
resulting in a right to compensation.
Definition by Legal Scholars
The term ‘tort’ has been
defined by various legal scholars:
- Salmond:
“A tort 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 breach of trust or other merely equitable duty.”
- Fraser:
“A tort is an infringement of a right in rem of a private individual
giving a right of compensation at the suit of the injured party.”
- Winfield:
“Tortious liability arises from the breach of a duty primarily fixed by
law; such duty is towards persons generally, and its breach is redressable
by an action for unliquidated damages.”
Features of a Tort
To gain a better
understanding of tort, let’s break it into its fundamental elements:
1. Civil Wrong
A criminal wrong is not a
tort. The harmed party is entitled to compensation or other civil remedies
since it constitutes a civil breach. Despite the fact that both criminal and
tort law address wrongs, the main objective of torts is to compensate the
victim rather than punish the offender.
Any infringement of a
legal right, whether absolute (such as defamation) or relative (such as
negligence), is a tort. The violation of legal right is sufficient to be considered
as a tort even in the absence of any actual loss. This is called injuria sine
damnum.
3. Duty Imposed by Law
In tort law, the duty
violated is imposed by law rather than generated by a contract. For example, it
is everyone’s responsibility not to injure others through negligent acts.
4. Remedy: Unliquidated Damages
Damages under tort law
are unliquidated, which means the court has discretion over the amount of compensation
and it is not specified.
Essentials of a Tort
For an act to be
considered a tort, the following essentials must be satisfied:
1. Wrongful Act or
Omission
The defendant must have
committed an unlawful act or omission here must be a wrongful act or omission
on the part of the defendant that infringes a legal right of the plaintiff.
Example: ‘A’
drives rashly and hits B’s scooter. Because of his careless driving,
"A" has committed a tort.
The plaintiff must have
suffered a legal injury. Two maxims are necessary to understand this:
- Injuria sine damnum:
Legal harm suffices as long as there is no actual damage.
- Damnum sine injuria:
The legal term for actual harm that is not actionable and does not result
in legal damage.
Case law: Ashby v.
White (1703)
Legal principle - Injuria sine damnum (legal injury without actual damage)
Facts – The defendant (a
returning officer) unlawfully refused the plaintiff the right to vote despite
the fact that she was a qualified voter.
Issue – Is it actionable
to deny a legal right in the absence of actual damage?
Held – The court held
that even in cases where no actual damage is done, a tort can still be created
when a legal right is violated.
3. Legal Remedy
The nature of the
injustice must be such that the court offers remedy, which is typically in the
form of compensation.
Types of Torts
1. Intentional
Torts – when an intentional action is taken.
Examples:
Assault, battery, false imprisonment, defamation.
2. Negligence
– failing to exercise reasonable care, which causes injury.
Example: Medical negligence by a doctor.
3. Strict
Liability – liability without fault.
Example: Owning a dangerous animal that escapes and causes harm.
4.
Vicarious Liability
– where one person is held liable for the act of another.
Example: Employer is accountable for the employee's actions.
Landmark Case Laws on Tort
1. Donoghue v. Stevenson (1932) – UK
Legal principle –
Negligence and duty of care Facts - The famous “snail in the bottle” case. After consuming ginger
beer that had a decomposing snail in it, women became unwell. A lawsuit was
filed against the company by her.
Issue – Without a
contract, is it possible for a customer to file a suit against manufacturer directly?
Held – It was held that the
manufacturer owed a duty of care towards the consumer which introduced the modern
law the concept of ‘Negligence’.
2. Rylands v. Fletcher (1868) – UK
Legal principle – Strict liability Facts – The plaintiff’s coal mine
was flooded by water that leaked from a reservoir that the defendant had
constructed.
Issue – Even though there
was no negligence, was the defendant still liable?
Held – The court held that
the person who brought something hazardous or dangerous to their land and if it
escapes and causes damage to others, then that person will be held accountable for
strict liability.
3. M.C. Mehta v. Union of India (1987) –
India
Legal principle – Absolute Liability
Facts – In the Oleum Gas Leak
case, many people were injured due to the hazardous gas leak from the Shriram
Foods factory.
Issue – Is strict
liability appropriate for industries engaged in hazardous activities?
Held – The court held
that the regardless of the protection taken, industries have a responsibility to
compensate for the damages caused. This also evolved the concept of ‘Absolute liability’
in India which is much more stronger than the concept of Strict liability.
4. State of Rajasthan v. Mst. Vidhyawati
(1962) – India
Legal principle – Vicarious Liability
Facts – A pedestrian was
killed by a government vehicle which was driven carelessly by a government
employee.
Issue - Is the state
liable for a tort committed by an employee?
Held – The court held
that the state may be found vicariously liable for a tort committed by a state
employee while they are working for the state.
|
Basis |
Tort |
Crime |
|
Nature of Wrong |
Civil wrong |
Criminal wrong |
|
Purpose |
Compensation to victim |
Punishment to offender |
|
Proceedings |
Initiated by the person who was impacted |
Initiated by the state |
|
Standard of Proof |
Preponderance of the evidence |
Without a reasonable doubt |
Protects Rights:
Personal, property, and reputational rights are safeguarded by tort law.
Deterrence:
By enforcing liability, it prevents harmful behaviour.
Compensation:
Losses incurred by victims are compensated.
Public Policy Tool:
It guarantees fairness and accountability.
Conclusion
Upholding legal duties
and civil rights is greatly supported by tort law. It is an ever-changing and
dynamic profession that encompasses everything from defamation to accidents.
Since torts regulate daily interactions and relationships in society,
understanding them is crucial for everyone, not just law students.
A tort, to put it simply, is a civil wrong that arises from a breach of a legal
obligation and for which the aggrieved person is given a remedy, typically
compensation.
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References
1-https://legalknowledgebase.com/what-language-is-tort
2- https://teara.govt.nz/en/1966/torts-law-of
4- https://www.lawteacher.net/free-law-essays/tort-law/tortuous-negligence-liability.php
Case References
1- Ashby
v. White (1703)
2-
Donoghue
v. Stevenson (1932)
3- Rylands v. Fletcher (1868)
4- M.C. Mehta v.
Union of India (1987)
5- State of Rajasthan
v. Mst. Vidhyawati (1962)
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