In common parlance the tort is an injury or wrong independent of implied contract, as by assault, libel, malicious prosecution, negligence, slander or trespass or seduction.
The term 'tort' is French in origin which is synonym to 'wrong' in English version. This word has originated from the Latin word 'tortus' which means to twist and implies conduct which is tortious or twisted. The Roman word 'delict' and Sanskrit word 'Jimha' depict same the meaning. The concept of tort appears when a breach of some duty is caused which is independent of implied contract giving rise to a civil cause of action and for which compensation can be claimed and a damage is recoverable.
Many authors have defined the term 'tort' but so far, its definition is still in a growing stage and it would be difficult to accept any single definition which could define tort in wholesome manner. There are shortcomings in each of the definitions but we will try here to find those missing links and bridging the gaps with our own suggestions.
A workable definition of tort may be as:-A civil wrong which is independent of implied contract for which the appropriate remedy is an action for unliquidated damages.
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 the breach of a trust or other merely equitable obligation.'1
'A tort may be described as wrong independent of contract, for which the appropriate remedy is common law action'.2
'The law of torts in civil wrongs is a collective name for the rules governing many species of liability which, although their subject-matter is wide and varied, have certain broad features in common, are enforced by the same kind of legal process and are subject to similar exceptions'.3
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1. Law of Torts (1992), 20th Edn., pp. 14, 15.
2. Clerk & Lindsell, Torts, 8th Edn., p. 1.
3. Pollock, Law of Torts, 11th Edn., p. 15
'Tortious liability arises from the breach of duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages'.1
It would not be out of place to mention here that none of the above definition gives a wholesome information on torts which can be accepted in its totality. However, the definition given by Winfield has more substance compared to those of other authors and if we examine here some of its shortcomings then certainly we can try for a definition near to perfection by adding some more teeth to it.
Important points of Winfield definition are:
(a) duty primarily fixed by the law,
(b) duty is towards persons generally; and
(c) action for unliquidated damages.
(a) In tortious liability, the duty must be fixed by the law from the beginning and not by undergoing an agreement between the parties. So, parties can neither create nor negotiate the tortious liability by contract. Tort arises from the duty which has been fixed by the law and has been infringed by the party. From the above definition it is clear that liability arises from the breach of duty by a person but it has been seen that even though a person not committed a breach of duty himself, is held liable. Vicarious liability cases fall under the category where a master is held liable for his servant's wrong. In our country, it is the legal duty of every person who drives a vehicle to drive it carefully obeying traffic rules and guidelines. For example A appoints B as his car driver and one day A asks B to fetch his relative from railway station to A's residence. In course of performing his duty B travels to station at excessive speed and hits a pedestrian causing him grievous injury. Here B has committed a breach of duty primarily fixed by the law, but his master A will also be held liable in civil action under the rule of vicarious liability. This definition doesn't give space for such kind of cases to come within its ambit.
(b) The duty in tort is always general and it is an important constituent of tort. In maximum cases, it is workable but in some cases, it becomes difficult to say who exactly are 'persons generally' hence it can be said that these words are ambiguous. In any case, this ambiguity of tortious liability serves to keep it distinct from the contractual liability, quasi-contractual liability and the liability arising from bailment where the duty is towards specific persons.
(c) Liquidated and unliquidated damages - where the plaintiff in an action sues for a pre-determined and inelastic sum of money - it is a claim for liquidated damages. But if he sues for a sum which court, in its discretion, is at liberty to award, then he is said to have a claim for unliquidated damages even though he has mentioned a particular (fixed) sum of money in his pleadings.
The action for unliquidated damages is a litmus test of tortious liability since the award of damages is under the discretion of courts.
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1. Winfield and Jolowicz on Tort by W.V.H. Rogers, 12th Edn., 1984, p. 3.
In case of Laxmi Devi v. State of Madhya Pradesh, MANU/MP/0063/2010 : AIR 2011 MP 47 the Court going through the veracity of tortious liability observed that negligence on part of treating Doctor or operating surggeon has to be necessarily established as "negligence" or "gross negligence". Because it is expected from professional medical doctors and surgeon that they would perform their duty well and upto best of their ability. In absence of culpable negligence, no doctor or surgeon could be penalised or declared guilty of committing negligence. Apparently if the plaintiff has suffered an injury for which, apart from the contract, he could have recovered damages, it is a tort, although it may also be a breach of contract and not less, if the tort has been suffered in the execution or purported execution of contract, Turner v. Stallibrass, (1898) 1 QB 56. Hence the distinction between "tort" and "contract" is not a logical one and it is sometimes different to say whether a particular thing is a wrong or a breach of contract.
In the case, State of Rajasthan v. Vidyawati, MANU/SC/0025/1962 : AIR 1962 SC 933: (1962) Supp 2 SCR 989, the plaintiff had claimed a damages for Rs. 25,000, but the court awarded only Rs. 15,000. Considering such element of tort, it can easily be distinguished from contract and bailment where the amount of loss is always pre-determined and inelastic. This definition also lacks other remedies viz. (a) self-help (b) injunction; and (c) actions for specific restitution of property.
* Self help can be availed by a person without going into a court of law. For example, if A finds a drunken stranger 'B' in his room then A is entitled to get rid of him without force but if he does not succeed then he can use as much force which is required to evict the stranger from his room. So, in Winfield's definition, an action for unliquidated damages is not necessarily the primary remedy for a tort.
* Injunction is the order or judgment given by the court to restrain the commission or continuance of some wrongful act or omission. For example, in case of nuisance, the first remedy that would suggest itself is injunction and an action for damages would then follow. Thus, here injunction is the primary remedy and not the unliquidated damages which comes later.
* Actions for specific restitution of property are the alternative remedies in law of torts. When the plaintiff has been dispossessed of his land, chattels or goods by wrong means then only such remedies are granted. It can be said here that an action for damages is not essentially the primary remedy.
By incorporating nature, scope and characteristic of torts in the Winfield's definition it can be read as:
"Tortious liability arises from the breach of a duty primarily fixed by law which results in an infringement of private legal right of another and for which, civil action for unliquidated damages, injunction, specific restitution of property or even self-help, as the case may be, can be maintained."1
When the interest is protected, it gives rise to a legal right which in turn gives rise to a corresponding legal duty. Some legal rights are absolute and its mere violation leads to the presumption of legal damage. To constitute a tort or civil injury following ingredients are necessary:
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1. S.P. Singh, Law of Tort, 4th Edn., p. 6.
(a) A wrongful act or omission on the part of a person;
(b) That wrongful act or omission must result in legal damage to another; and
(c) The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages.
A wrongful act or omission is said to have been committed by a person who has not performed his duty like a reasonable and prudent person or has broken it intentionally.
In the case, Rogers v. Rajendra Dutt, (1860) 8 MIA 103 (136): 13 Moore PC 209, it was observed that 'the act complained of should, under the circumstances, be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do him harm in his interest is not enough'.
Legal right in words of Austin is a 'faculty' which resides in a determinate party or parties by virtue of a given law, and which avails against a party other than the party or parties in whom it resides. For example, 'A' erects a wall on his land which obstructs the light to B's house. Although it is undoubtedly a lawful act to erect a building on one's own land but since the neighbour has enjoyed uninterrupted light for years, he has acquired the legal right to have this enjoyment, so erection of construction by A on his own land is an invasion of the right of B hence, not only damage but it is also unlawful and injurious.
A wrongful act may be a positive act or an omission which can be committed by a person either negligently* or intentionally** or even by committing a breach of strict duty.***
For instance, if a person drives his car at an excessive speed and with his rash and negligent driving injures any person on the road or keeps a dog on his land which escapes and bites a person in the neighbourhood then such act of the said person is a positive wrongful act or omission and he can be held liable for this.
It would be pertinent here to mention that a breach of merely moral or religious duty can't be considered under this head but it must be a duty primarily fixed by the law.
A, a lady who falls ill and requests her neighbour B to look after her since she is all alone. B takes care of 'A' and extends all types of help like giving food and medicines to her and making her comfortable with his presence at the time of need. A recovered after sometime. Once B fell ill, he requested A to help him during his illness but A never acceded to B's request and B due to lack of proper care and help became disabled. Here, it was A's moral duty to look after B
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* Negligence means when a person does not act with care and caution and said to be careless while performing his duty without applying prudence.
** Intention signifies full advertence in the mind of the defendant to his conduct which is in question and to its consequences, together with a desire, for those consequences.
*** Breach of strict duty speaks about liability of person even though he is not at fault. In Rylands v. Fletcher it was laid down "if a person brings or accumulates on his land anything which, if it escapes, may cause damage to his neighbours, he does so at his peril, if it escapes and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent damage".—(1868 LR 3 HL 330).
during his illness and this duty cannot be held as legal duty. Since, this moral duty has not been fixed by law itself, B cannot take any legal action against the lady 'A'.
In the case Dhadphale v. Gurav, (1881) 6 Bom 122, Dhadphale was a servant in the temple and had a right to get the food offered to the idol and Gurav was under obligation to offer the food to idol but he failed to do so and the servant Dhadphale brought a suit against Gurav for damages. It was held by the Court that Gurav was not under legal obligation to give the food to the servant of the temple, failure to offer the food to idol was a breach of religious duty and not the legal duty hence, the plaintiff was not entitled for damages.
In the case Anand Singh v. Ramachandra, AIR 1953 MP 28, the defendant built two pucca walls on two sides of his house on his land resulting in damage to walls situated between the defendant's and plaintiff's houses. The flow of water in the lane damaged the plaintiff's walls. The plaintiff had not acquired any right of easement. The Court was of the view that the defendant by building the wall on his land had not in any way violated the plaintiff's right therefore, no right of action was accrued to the plaintiff.
Legal damage is second important ingredient in constituting a tort. Damage means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act done by another person. The sum of money which is awarded by the Court to compensate 'damage' is called "damages".
On the basis of presumption of damage rights are of two types: (i) absolute and (ii) qualified.
In case of violation of absolute right, the law conclusively presumes damage although the person wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is legal damage. In qualified rights, there is no presumption of legal damage and the violation of such right is actionable only on proof of actual or special damage. In this case injury or wrong is not complete unless and until actual damage has been caused by violating the rights.
In Ashby v. White, (1703) 2 Lord Rayam 938, the plaintiff's legal right to vote in the parliamentary election was maliciously violated by the defendant and the defendant was held liable although the plaintiff not incurred any pecuniary loss. Lord Hott, C.J.; observed-"Every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right".
In another case, Marzetti v. Williams, (1830) 1 B&AD 415, the banker refused to honour the cheque of the customer although the banker had sufficient funds in his hand. Here the customer did not sustain any actual loss or damage, the banker was held liable.
In the words of Ihering - 'Rights are legally protected interests'. Right may be divided into two types: Private and Public. Private rights are those rights which vest in a person by virtue of law. Right to reputation, right to bodily safety and freedom, right to property etc. fall under this category. So, if a person has legal (private) right others have a duty towards him not to violate his rights. If his legal right is infringed without lawful excuse, he has a right of action against the person who infringes or violates it.
Public rights are those rights which belong to everyone as common people or it belongs in common to the members of the State generally. In case of violation of public rights, State takes action against the offender. For example, public peace, it is a right of everyone and if someone breaks it then he would be held liable and will be punished under law.
(c)
In tort, the wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. Legal remedy is the third essential for an action in tort. A tort is a civil injury, but all civil injuries are not torts. The essential remedy for a tort is an action for damages but there are other remedies also for example injunction may be obtained in addition to damages in certain cases of wrongs or an action by the plaintiff himself without going to the court i.e. self-help.
Mathematically tort can be summarised as follows:
|
Wrongful act + |
Legal damage + |
Legal remedy = |
Tort |
|
| (a breach of legal duty) |
| (infringement of private legal right of another person) |
| (there must be at least 1 out of 4 remedies recognised by law i.e. damages, injunction, specific restitution of property and self help.) |
The law of torts has developed from the maxim "ubi jus ibi remedium" i.e. there is no wrong without a remedy, Jus, means 'the legal authority to do or to demand something' and 'remedium' signifies the right of action or the means given by law for the recovery or assertion of a right. We can also look upon this maxim which says-'Where there is a right, there is a remedy'. In the case, Ashby v. White, Holt, C.J., laid down that 'if the plaintiff has a right he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise of enjoyment of it, and indeed it is a vain thing to imagine a right without a remedy for want of right and want of remedy are reciprocal'.
4.
Jurists are not having same opinion as to what constitutes the foundation of tortious liability. Winfield has given two competing theories:
(i) All injuries done to another person are torts, unless there is some justification recognised by law.
(ii) There are a definite number of torts outside which liability in tort does not arise.
The first theory has got support from Sir Fredrick Pollock as well as from eminent judges. Winfield says that - if I injure my neighbour he can sue me in tort whether the wrong happens to have a particular name viz. assault, battery, deceit, slander or even in absence of such names and I shall be liable if I fail to prove lawful justification. On this view, the law of tort/torts consist not merely of all those torts which have acquired specified names but also includes the wider principle that all unjustifiable harms are tortious. In the case, Chapman v. Picker S. Gill, (1762) 2 Wills 145 (146), Pratt, C.J. held that 'Torts are infinitely various, not limited or confined. Bowen, L.J. in the case Skinner & Co. v. Skew & Co., (1893) 1 Ch 413 (422), observed that "at common law there was a cause of action whenever one person did damage to another wilfully and intentionally without just cause or excuse."
The second theory is also known as pigeon-hole theory. According to this theory the law of torts consists of a net-set of pigeon-holes, each containing a specific tort. For example, assault, battery, deceit, slander or any other tort. If the wrong committed by defendant does not fit in any of these pigeon-holes, then he has committed no tort. Sir John Salmond, an ardent supporter of this theory says, "Just as the criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specified injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted for an alleged offence or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability, and not for me to defend myself by proving that it is within some specific and established rule of justification or excuse."
5.
The first theory has got reinforcement by the court by repeatedly extending the domain of the law of tort by creating new torts i.e. torts to which specified names have been given. For example, tort of malicious prosecution, deceit, absolute or strict liability etc. So, it is evident from such instances that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon-holes is not tenable. The first theory has got support from Lord Mansfield in Gardiner v. Creasdale, (1760) 2 Burr 905, in the year 1760 and in 1762, Pratt C.J. in the case Chapman v. Pickers, gave his favour to this theory. It also got positive remark by Bowen, L.J. and Holmes J., in the cases Skinner & Co. v. Skew & Co. and Aikens v. Wisconsin, 191 (195) US 194, respectively. There is still some controversy regarding second theory and different authors have varied views. Dr. Jenks finds that new torts can be created and this is perfectly consistent with this theory because new torts cannot come into being unless the courts regard them as substantially similar to torts which they have already recognised.1
Both the theories have their own merits and shortcomings and it depends upon the viewers who looks upon the theories from the angle he chooses.
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1. Journal of comparative legislation, Vol. CIV, (1932), p. 210.
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