What is the definition of Tort?
Meaning of Tort: – A tort is an act of civil offence committed against a person that results in injury, harm or loss. The person who has committed the tort shall be legally liable on account of the consequential loss or damage. A person is liable for the wrongful act, whether done accidentally or intentionally. The injured or the aggrieved party is compensated by the payment for damages.
The word tort is derived from the French language. It is equivalent to the English word ‘wrong’ and the Romanian law word ‘delict’. It is derived from the Medieval Latin word ‘tortum’ meaning ‘wrong’ or ‘injury’ which itself developed from the Old Latin word ‘torquere’ meaning ‘to bend’. It is a breach of duty which equates to a civil wrong.
A tort is not a crime. Although criminal law and tort law grew from the same roots, they are today quite distinct and different. Criminal law is designed to provide security for the citizen of the state. Nor is the law of torts contractual in its nature. Contract Law seeks to enforce the rights which arise out of an agreement whose parties have voluntarily agreed to be bound by its terms. The law of contract seeks to enforce the terms of the agreement specifically or provide compensation for its breach. Nor can torts fall under the title of quasi-contractual relief. That remedy seeks to prevent unjust enrichment that might, for example, arise out of payment of money under a mistake. The law of tort covers a much wider field than does contract.
Section 2(m) of the Limitation Act, 1963, addresses tort as a civil wrong which is not merely a breach of contract or breach of trust.
Definition of Tort by different thinkers
- According to John Salmond, He addresses tort as being only a civil wrong which has unliquidated damages (those damages for which there is no fixed amount) in the form of remedy and which is not just exclusively the breach of contract or the breach of trust or breach of merely fair and impartial obligation.
- According to Richard Dien Winfield, Tortious liability emerges from the breach of a duty primarily fixed by the law, this duty is towards the other people generally and its breach is redressable by an action for unliquidated damages.
- According to Fraser, A tort is an infringement of a right in rent of a private individual giving a right of compensation at the suit of the injured party.
- Burdick helps in defining the term as “an act or omission which unlawfully violates a person’s right created by law and for which the appropriate remedy is a common law action for damages by the injured person”
- In the book Street on Torts by John Murphy and Christian witting, a beautiful attempt was made to define Torts as “Tort is that branch of civil law relating to obligations imposed by operation of law on all natural and artificial persons. These obligations, owned by one person to another, embody norms of conduct that arise outside the contract and unjust enrichment. Tort enables the person to whom the obligation is owed to pursue a remedy on his own behalf where a breach of a relevant norm of conduct infringes his interests to a degree recognized by the law as such an infringement.”
What is Tort Law?
Meaning of Tort Law: – The definition of Tort Law refers to specific laws; to determine whether a particular party is liable for damages and injuries caused to the other party and to determine the amount of compensation payable to the injured party. Tort law is that branch of the law that deals with civil law, including law suits but excluding issues involving contracts. Tort law is considered to be a form of restorative justice since it seeks to remedy losses or injury with monetary compensation.
Harm can include anything from injury and pain and suffering to property damage and loss of wages and may also include additional punitive damages that are meant to punish the plaintiff in excess of full compensation. The purpose of compensation is to return the person to their original state as much as possible prior to the incident of tort.
In some cases, the court may include punitive damages on top of awarded compensatory damages. The primary purpose of punitive damages is not to indemnify the plaintiff. Instead, it aims to punish the defendant specifically for acts deemed irresponsible and to prevent others from engaging in similar conduct. Total law is the largest area under the umbrella of civil law, which also covers personal injury.
What are the essential elements of Tort?
The four essential elements that constitute a tort are: –
- A wrongful act or omission,
- Duty imposed by law,
- The act must give rise to legal or actual damage, and
- It should be of such a nature as to give rise to a legal remedy by way of action for damages.
- A wrongful act or Omission: – A wrongful act can be either morally wrong or legally wrong and can also be both at the same time. A legal wrongful act is one which affects one’s legal right, the wrongful act must be one recognized by law, the act must be in violation of the law to be a legal wrongful act. For example, if someone whose religion does not allow him/her to eat non-vegetarian food, still eats it then he/she will be morally wrong but not legally wrong. And if a person whose religion doesn’t allow him or her to eat non-vegetarian and he or she strictly follows that religion, is forcefully fed by someone then it is a legal wrong on the part of the person forcing the other one to eat that food which he or she does not want to eat.
- Duty imposed by law: – A duty of care is one which is imposed on every individual and requires a standard of reasonable care that he could see as being harmful towards others. Hence, a duty imposed by law is a duty which is legally enforceable in the Indian courts. The law imposes a duty on every individual to observe and maintain a reasonable standard of care when performing any act which may potentially cause harm to another person. In order to bring a suit for a tort, it must be proved that there existed a duty of care towards the injured party, which was subsequently breached by the tortfeasor. It is not necessary that the injured party and the tortfeasor have a direct connection for the duty of care to exist, rather, the duty is imposed by operation of law.
- Actual Damage or Legal Injury: – For a wrongful act to constitute a claim for tort and give rise to any liability, the plaintiff must have suffered any actual harm/loss, or even an infringement of their legal rights. So, there must be any actual damage or violation of a legal right of a person and if there is no violation of a legal right then there can be no action under the law of torts. If there has been a violation of a legal right, the same is actionable whether the plaintiff has suffered any loss or not. Legal damage could be understood more clearly with the help of following maxims: –
- Injuria Sine Damnum: – Injuria Sine Damnum is a legal maxim, which means that injury or loss or damage caused to the plaintiff without suffering any physical injury or damage. It is a Latin term where ‘Injuria’ means injury, ‘Sine’ means without and ‘Damno’ refers to a property or any physical loss, therefore the term refers to ‘injury suffered without actual loss’. Here, in this case, the plaintiff doesn’t have to prove the damages so suffered, he only has to prove that there is some legal damage suffered by him, that is the action so brought is actionable per se.
- Damnum Sine Injuria: – Damnum Sine Injuria is a maxim, which refers to injury which is being suffered by the plaintiff but there is no violation of any legal right of a person. In such circumstances, where there is no violation of the legal right of but the injury, or damage is being suffered by the plaintiff, so the plaintiff can’t bring an action against the other for the same, as it is not actionable in law, unless there is some infringement of a legal right is present. Damnum Sine Injuria, the literal meaning of the word refers to loss or damage in terms of money, property or any physical loss without the infringement of any legal right. It is not actionable in law even if the act so did was intentional and was done to cause injury to other but without infringing on the legal right of the person.
- Legal Remedy: – Wherever there is a wrong, there is a remedy. It should be of such a nature as to give rise to a legal remedy by way of action for damages. The law of torts also prescribes certain forms of legal remedies for injured parties, such as damages, specific restitution of property and injunctions that are awarded by the Courts.
What are the objectives of tort law?
The objectives of tort law are as follows: –
- To determine rights between the parties to a dispute.
- To prevent the continuation or repetition of harm i.e. by giving orders of injunction.
- To protect certain rights of every individual recognized by law i.e. a person’s reputation.
- To restore one’s property to its rightful owner i.e. where the property is wrongfully taken away from its rightful owner.
What are the characteristics of tort?
The characteristics of tort are as follows: –
- A tort is a civil wrong: – Tort comes under the purview of civil law and its wrong is known as a civil wrong. The distinction becomes important because unlike in criminal law, there is no punishment in civil laws and matter is to be sued by a person himself and is not sued by the state further the compensation is granted for unliquidated damages which is not the case in criminal law.
- A tort is an infringement of a right in rem: – There are two types of rights, Right in rem and right in persona. While the right in rem is available against the whole world whereas right in persona is available against any particular individual. Every person has the right to the enjoyment of his own property and any person who has violated or infringed he will be sued and liable to pay the compensation in the form of unliquidated damages. This is known as right in rem which is available against the whole world. This way the tort law in right in rem and is available against the whole world.
- Torts deal with cases related to legal rights: – It is fair enough that tort deals with an only violation which is in relation to breach of a legal right. Though a person may economic or social loss but if it hadn’t breached any legal person won’t have any recourse in court under tort law.
- Remedy in the form of Compensation: – In torts Law, the remedy is awarded in the form of damages or as unliquidated damages which are calculated by the court on the basis of loss caused. The method is different from what is in the law of contracts where damages are already mentioned in the contract or can be easily calculated according to the agreed terms.
- Rights are to be fixed by law: – To claim a remedy for the violation of rights, the rights should be recognized by the government. These rights can’t be self-declared rights for his own purpose, nor these can be based on the previous consent of the parties. The right should be acceptable by the government and these rights changes according to the needs of the society.
- Law of Torts is totally based on precedents: – Though precedents play an important role in the development in any law, but in the case, the law of torts is the only source of law. There is a statute or act that specifically deals with the Law of torts. Through this characteristic, the judgements of common law become an important and only source that recognizes these rights as a subject of law.
- Torts law is uncodified: – Codified laws are laws, which have written statutes and acts on that subject and changes take place by the process of amendment in the parliament , it can be distinguished from uncodified laws which don’t have any written statutes or acts and have to rely on precedents and case laws and change can be possible without the intervention of the government. Thus, the law of torts is totally based on precedent and developed through different case laws.
Classification of Tort
To better understand tort law, we can identify three ways in which torts can be classified, such as: –
- Intentional Tort: – This type of tort occurs when one person intentionally committed a wrong that caused harm to another person. The main difference with intentional tort is the need to demonstrate that the defendant committed the tort on purpose. Intentional tort includes the following: –
- Battery: – When some force is applied physically to the body of another person in an offensive manner which causes some harm is called battery. Battery constitutes the offensive touching which is not consented by the other party. Even if the person did not intend to injure the other person but if he has the knowledge that his act could harm someone in any way then also the battery is constituted.
- Assault: – When the act of one person creates an apprehension in the mind of another person that such act is likely or intended to cause such harm. It could range from pointing a gun at a person to verbally threatening a person. There is an assault if a person threatens to shoot another while pointing a gun another him, even if the victim later discovers that the gun was not loaded.
- False Imprisonment: – It is the unlawful confinement of the person without his will. It is not necessary that person should be put behind the bars, a mere impossibility of escape against the will of the person from a certain area is enough to constitute a tort of false imprisonment. False arrest is the part of false imprisonment which includes detaining of the person by the police without lawful authority.
- Trespass: – Using another person’s property without their permission. It is the intentional, unreasonable invasion of the property, land, person or goods. The unreasonable interference can cause harassment or harm to the other person, no matter how slight it is. The legal right of the owner of the property is infringed because he is deprived of his right to enjoy the benefit of the property by the misappropriation or exploitation of his right.
- Defamation: – It is an injury or harm caused to the reputation, goodwill or character of the person. Defamation is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort or crime. If a customer accused the restaurant owner of food poisoning even though it was not actually the restaurant’s food that caused them to be ill. If the customer shared the false information with other customers, the owner could have grounds for a defamation lawsuit.
- Unintentional Tort: – Unintentional torts are caused usually by accident or by mistake by the defendant to the plaintiff without any mala fide (Evil or Wrongful) intention towards doing such an act. These are usually committed on the breach of duty of care which a reasonable human being would’ve considered under normal circumstances. Negligence (failure to take proper care over something) is a great example of this kind of tort.
- Torts of Negligence: – Negligence is the absence of reasonable care which is imposed on all persons so as not to place the other person at foreseeable risk of harm through his conduct. Failure to exercise a reasonable standard of care may result in a reckless tort. For a negligent tort case to be successful, four elements must be present: – Duty, Breach of Duty, Causality and Damages. Negligence tricks make up the majority of tort lawsuits.
- Car/Bicycle/Motorcycle Accidents: – If a driver (or rider) speeds up and hits a pedestrian, causing injury, the driver can be found negligent.
- Slip and fall: – A slip and fall can occur when the owner of a premises fails to take reasonable care to the floor of his property thus leaving water on the floor carelessly which in turn results in harming the individuals whoever enters his premises. Here, the owner of the premises did not intent to harm the visitors at all but due to his carelessness, such an outcome came to be.
- Medical Malpractice: – Medical malpractice occurs when a medical professional does not provide appropriate or competent care, resulting in harm to the patient.
- Strict Liability Torts: – In strict liability tort cases, the focus shifts from the person or party to the act or event itself. In other words, strict liability cases do not even take into account the intention or negligence of the wrongdoer. What matters is the action and the resulting damage that happened.
- Product Liability: – Product liability relates to cases of loss or injury caused by defective products made available to the public by manufacturers, suppliers, or retailers.
- Owning wild animals: – The owners of wild animals will be held responsible, if any animal escapes and injures another person.
- Extraordinarily Hazardous Activities: – For example, a truck carrying volatile chemicals or hazardous materials may be liable for any damage caused by a spill or explosion.
Tort Law Remedies
Depending on the nature and severity of the torture case, different remedies will apply. There are three types of measures in Tort Law: –
- Damages: – To restore the plaintiff in the position he was if the tort would not have been committed, damages are awarded to the claimant. The injury caused includes not only physical injury but also emotional, economic or reputational injury and many other. Damages payable to the plaintiff are made in terms of money. Damages depend upon the cause, fact and the circumstances of the case. Damages can be awarded more than that claimed by the defendant.
- Legal Remedies: – To compensate the victim for any loss, harm, injury, or pain and suffering caused by tort.
- Restitution Remedy: – The purpose of this type of treatment is to restore the victim to the state they were in prior to the incident of torture and to ensure that the defendant forfeits any unlawfully obtained benefits.
- Injunction: – It is granted to refrain the party from further continuing an act. Sometimes damages are not enough to compensate the party, the act which is causing such harm needs to be permanently to be stopped. It is granted at the discretion of the court.
- Equitable Remedy: – Where monetary compensation cannot adequately address the effects of tort, a judge may apply equitable remedy. These may include a temporary restraining order or an injunction that prohibits the defendant from any unlawful activity.