Introduction to Law of Torts
Subject: Law of Torts
Definition and Meaning of Tortious Liability :
"Tort" comes from "Tortum" which means "to twist". What is twisted is the conduct of the wrong-doer, called the defendant. Such a twist causes a legal injury (a civil wrong)) to the plaintiff and the courts provide for a remedy to him in the law of Torts.
"Tortious liability arises from a breach of duty fixed by law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages" (Winfield). Salmond defines a tort as a civil wrong for which the remedy is an action for damages and which is not exclusively a breach of contract or breach of trust or breach of other merely equitable obligations. Thus "torts are civil wrongs. But all civil wrongs are not torts". To be a tort, the civil wrong
should have three essentials :-
1. The duty is primarily fixed by law. Law provides for legal rights and legal duties. In fact, one man's rights are another man's duties. Such legal rights are numerous in number, as for example,everyone has a right to his reputation, right to property, right to his person etc. On every other man duties are imposed by law, such duties are numerous in number; Eg. Not to assault others, not to commit Nuisance, not to slander others, not to deceive others, not to trespass on other's land, not to defame others etc. The violation of such a legal duty gives rise to a tortious liability.
2. The legal duty is towards persons generally: The legal duty,for example, not to slander means not only that slander should not be committed against X or Y but in tort the duty is considered general, i.e., it is against all persons in the world (in rem). Hence, the legal duty not to assault, libel, trespass etc., is against all persons in the world.
3. Unliquidated Damages: Damages are divided into liquidated and unliquidated.'Liquidated', means the amount is pre-estimated and fixed by the parties themselves as in a contract. Damages are unliquidated when the court, in its discretion, awards compensation taking into consideration a large number of factors that help to assess the compensation. In fact, according to towinfield action for unliquidated damages, is the basis of tortious liability. It may be noted that there are other remedies as well. Eg. Self-defence, temporary or permanent injunction, action for specific restitution of land and chattels, or abatement of nuisance, etc.
A tort is a civil wrong. This is basically a breach of a duty imposed by law, which gives rise to a civil right of action for a remedy not exclusive to any other area of law. How the word tort came to India? It came to India through England. In 1065 England was conquered by Normans, who were the French-speaking people of Normandy, a region of France. After Norman Conquest, French become the spoken language in the courts in England, and thus many technical terms in English Law owe their origin to French, and tort is one of them. The word tort is based on the idea that everyone in society is having certain rights. The word tort is of French origin and is equivalent of the English word wrong, and the Roman law term delict. It is derived from the Latin word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked. It is commonly used to mean a breach of duty amounting to a civil wrong. Of the various attempts to define tort, Salmond's definition is rather popular. Salmond defines a tort as 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. A tort arises due to a person‟s duty to others in general which is created by one law or the other. A person who commits a tort is known as a tortfeasor or a wrongdoer. Where they are more than one, they are called a joint tortfeasor. Their wrongdoing is called tortuous act and they are liable to be sued jointly and severally. The principle aim of the Law of tort is the compensation of victims or their dependants. Grants of exemplary damages in certain cases will show that deterrence of wrongdoers is also another aim of the law of tort.
Objectives Of Law Of Torts i. To determine rights between parties to a dispute. ii. To prevent the continuation or repetition of harm e.g. by giving orders of the injunction. iii. To protect certain rights recognized by law e.g. a person's reputation or good name. iv. To restore the property to its rightful owner e.g. where the property is wrongfully taken away from its rightful owner.
Constituents Of Tort The law of tort is fashioned as an instrument for making people adhere to standards of reasonable behavior and respect the rights and interests of one another. A protected interest gives rise to a legal right, which in turn gives rise to a corresponding legal duty. An act, which infringes a legal right, is a wrongful act but not every wrongful act is a tort. To constitute a tort or civil injury, therefore: 1.There must be a wrongful act or omission. 2.The wrongful act or omission must give rise to legal damage or actual damage and; 3.The wrongful the act must be of such a nature as to give rise to a legal remedy in the form of an action for damages. The wrongful act or omission may however not necessarily cause actual damage to the plaintiff in order to be actionable. Certain civil wrongs are actionable even though no damage may have been suffered by the plaintiff. 1. Wrongful Act. The act complained of should, under the circumstances be legally wrongful as regards the party complaining, i.e. it must prejudicially affect him in some legal right. This must be an act or an omission. Merely that it will, however directly, do him harm in his interest is not enough. The act being wrongful in law is called actus reus. An act which prima facie appears to be innocent may become tortuous if it invades the legal right of another person e.g. the erection in ones' own land, of anything, which obstructs light to a neighbors' house. Liability for a tort arises therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.
2. Damage. The sum of money awarded by the court to compensate for damage is called damages. Damage means the loss or harm caused or presumed to be suffered by a person as a result of some wrongful act of another. Legal damage is not the same as actual damage. Every infringement of the plaintiff‟s private right or unauthorized interference with his property gives rise to legal damage. There must be a violation of a legal right in cases of tort. Every absolute right, injury, or wrong i.e. tortuous act is complete the moment the right is violated irrespective of whether it is accompanied by and actual damage. In case of qualified right, the injury or wrong is not complete unless the violation of the right results in actual or special damage. Every injury, thus imports damage, though may not have cost the victim a penny, but simply by hindering the right, as an action for a slanderous word, though a man does not lose a penny by speaking them yet he shall have an action. Likewise, a man shall have an action against him who rides over his ground, though it does him no damage, for it is an invasion of his property and the other trespasser has no right to come there.The real significance of legal damage is illustrated by two maxims namely: Injuria sine damno and Damnum sine injuria. Damnum is meant to damage in the substantial sense of money, loss of comfort, service, health or the like. By injuria is meant a tortuous act. Injuria sine damno. This is the infringement of and absolute private right without any actual loss or damage. The phrase simply means Injury without damage. The person whose right is infringed has a cause of action e.g. right to property and liberty are actionable per-se i.e. without proof of actual damage. Example: Refusal to register a voter was held as and injury per-se even when the favorite candidate won the election - Ashby Vs. White (1703). This rule is based on the old maxim of law „Ubi jus ibi remedium‟ which means that where there is a right, there is a remedy.
Damnum sine injuria This is the occasioning of actual and substantial loss without infringement of any right. The phrase simply means Damage without injury. No action lies. Mere loss of money or moneys' worthy does not constitute a tort. There are many acts, which though harmful are not wrongful, and give no right of action. Thus Damnum may be absque injuria i.e. damage without injury. Example: 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 discoloring 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. In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship owners combined together. In order to drive a ship-owner out of trade by offering cheap freight charges to customers who would deal with them.The plaintiff who was driven out of business sued the ship-owner, for loss caused to him by their act. The court held that a trader who is ruined by legitimate competition of his rivals could not get damages in tort. 3. Remedy. The essential remedy for a tort is action for damages, but there are other remedies also e.g. injunction, specific performance, restitution etc. Further, damages claimable in tort action are unliquidated damages. The law of tort is said to be a founded of the maxim- Ubi jus ibi remedium i.e. there is no wrong without a remedy.
Other elements of tort In certain cases, the following may form part of requirements for a wrong to be tortuous. 1. Voluntary and involuntary acts: acts and omissions may be voluntary or involuntary. An involuntary act does not give rise to liability in tort.
2. Mental elements: Plaintiff may be required to show some fault on the part of the defendant. Fault here means failure to live up to some ideal standard of conduct set by law. To determine fault, the following may be proved:-
a) Malice: In the popular sense, malice means ill-will or spite. In Law, it means i) intentional doing of a wrongful act and, ii) improper motive. Thus a wrongful act done out of malice is an act done wrongfully and without reasonable and probable cause, dictated by anger or vindictive malice.
b) Intention: i.e. where a person does a wrongful act knowing the possible consequences likely to arise, he is said to have intended that act, and is therefore at fault.
c) Recklessness: i.e. where a person does an act without caring what its consequences might be, he is at fault.
d) Negligence: i.e. where the circumstances are such that a person ought to have foreseen consequences of his act and avoided it altogether, he would be at fault if he bothers not.
e) Motive: Motive is the ulterior objective or purpose of doing an act and differs from intention. Intention relates to the immediate objective of an act while motive relates to the ulterior objective. Motive also refers to some personal benefit or satisfaction which the actor desires whereas intention need not be so related to the actor. An act which does no amount to legal injury cannot be actionable because it is done with a bad motive it is the act, not the motive for the act that must be regarded. If the act apart from motive gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element. The exceptional cases where motive is relevant as an ingredient are torts of malicious prosecution, malicious abuse of process and malicious falsehood.
3. Malfeasance, misfeasance and non-feasance: ‘Malfeasance‟ refers to the commission of a wrongful act which is actionable per-se and do not require proof of intention or motive. „Misfeasance‟ is applicable to improper performance of some lawful act, for example, where there is negligence. ‟Non-feasance‟ refers to the omission to perform some act where there is an obligation to perform it. Non-feasance of a gratuitous undertaking does not impose liability, but misfeasance does. MOTIVE AND MALICE. Motive means the reason behind the act of the defendant. When motive is colored with ill will, it becomes malice. Malice means desire or ill will to cause damage to someone. As a general rule motive is irrelevant in determining liability in tort. A good or bad intention is not a defense in tort. Case: Bradford Corporation V s. Pickles (1895): The general irrelevance of motive and malice is clearly analyzed in this case. Pickles was annoyed by the refusal of Bradford Corporation (plaintiff) to purchase his land for their water project. Out of Malice he sank a shaft in his land, which had the effect of discoloring and diminishing the water of the corporation, which percolated through his land. The corporation applied for an injunction to restrain Pickles from collecting the underground water. The court held that an injunction could not be granted as Pickles had a right to drain from his land underground water not running in a defined channel. Therefore, the fact that Pickles was malicious in his conduct is immaterial. Malice in itself is not a tort even though in some cases, it may constitute an essential element of a tort, for example, malicious prosecution.
Distinctions between Contract and Tort 1. In a contract the parties fix the duties themselves whereas in tort, the law fixes the duties. 2. A contract stipulates that only the parties to the contract can sue and be sued on it (privity of contract) while in tort, privity is not needed in order to sue or be sued. 3. In the case of contract, the duty is owed to a definite person(s) while in tort, the duty is owed to the community at large i.e. duty in- rem. 4. In contract remedy may be in the form of liquidated or unliquidated damages whereas in tort, remedies are always unliquidated.
Breach of Contract
1. In tort, there is an infliction of an injury without the consent of the plaintiff. Consent negatives liability under "Volenti non fit injuria", subject to certain exceptions. Eg. Rescue cases (Haynes V, Harwood). 2. There is no privity between parties. Ex: Donoughue V Stevenson: the manufacturer of ginger beer was held liable for negligence to the ultimate consumer. (Legal neighbor) Another leading case is Grant V. Australian knitting Mills Ltd. 3. In the law of torts, there is a specific violation of a right in rem (right against all the persons in the world). Right to personal safety, right to reputation, breach of contract to sell. right to property etc., are examples.
1. Consent is the basic essential of all contractual obligations. In fact, if there is no consent, there is no contract at all. 2. There is privity of contract between the parties called the contracting parties, 3.In case of a contract, the breach is due to the violation of a right in personam
Distinctions between Tort and Crime 1. In tort, the action is brought in the court by the injured party to obtain compensation whereas in crime, proceedings are conducted by the state. 2. The aim of litigation in torts is to compensate the injured party while in crime; the offender is punished by the state in the interest of the society. 3. A tort is an infringement of the civil rights belonging to individuals while a crime is a breach of public rights and duties, which affect the whole community. 4. Parties involved in criminal cases are the Prosecution verses the Accused person while in Torts, the parties are the Plaintiff versus the Defendant.
1. In tort, there is an infringement of a civil
right or a private right of the party. Hence, a tort is a private wrong.
2. In tors, the wrong-doer (tort feasor) should pay compensation to the plaintiff
according to the decision of the court.
3. In tort, the affected or injured party may sue. 4. The right to sue or to be sued survives to the successor. The leading case is Rose V. Ford,
1. In crime, there is an infringement of a public right affecting the whole community.
Hence, a crime is public wrong.
2. In crime, the criminal is punished by the state in the interests of the society, punishment may be death, imprisonment or fine as the case may be.
3. In crime, the state is under a duty to institute criminal proceedings against the
accused. 4. The legal action dies with the person in crimes subject to certain exceptions. The maxim is 'Actio personalis moritur cum
persona', (personal action dies with the person).