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 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:-
- 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.
- 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.
- Unliquidated Damages: Damages are divided into liquidated and ‘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 winfield 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
Torts Distinct From Breach of Contract:
| Sr. No. | Torts | Breach of Contracts |
| 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). | Consent is the basic essential of all contractual obligations. In fact, if there is no consent, there is no contract at all.
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| 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 neighbour) Another leading case is Grant V. Australian knitting Mills Ltd. | There is privity of contract between the parties called the contracting parties. |
| 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 |
In case of a contract, the breach is due to the violation of a right-in-personam |
Though the above distinctions are made out, it cannot be disputed that there are cases where torts and breach of contract overlap.
Eg. A surgeon negligently operating P’s minor son. There is no contract between the surgeon and the father of the minor son, but there is a tort of negligence by the surgeon in relation to the boy.
Torts Distinct From Crime:
| Sr. No. | Torts | Crime |
| 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. | In crime, there is an infringement of a public right affecting the whole community.
Hence, a crime is public wrong.
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| 2. | In tors, the wrong-doer (tort feasor) should pay compensation to the plaintiff according to the decision of the court.
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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 tort, the affected or injured party may sue.
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In crime, the state is under a duty to institute criminal proceedings against the accused. |
| 4. | The right to sue or to be sued survives to the successor. The leading case is Rose V. Ford, | 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). |
Tort Distinct from Quasi-Contracts :
- In tort, there is a primary legal duty fixed by law, but in quasi-contract there is no such duty. A qualified surgeon who operates on P, owes a legal duty to P, and hence becomes liable for negligence. In quasi-contract, for example, in unjust enrichment, there is no legal duty where A delivers goods by mistake to B instead of to C. B is not under a legal duty not to receive the goods. Of course, B must return the goods to A, but he is not liable to pay compensation to A.
- In tort, breach of duty is redressible by an action for dam ages. The damages are determined by the Courts. There is no such liability in quasi-contracts.
Reasonable Man Explained:
The reasonable man has a reference to the ”Standard of care” fixed by law in negligence or in other tortious obligations.
A reasonable man is a person who exhibits a reasonable conduct which is the behaviour of an ordinary prudent man in a given set of circumstances. This is an abstract standard. As Lord Bowen rightly stated “he is a man on the Clapham Omnibus“.
“He is not a person who is having the courage of Achilles or the wisdom of Ulysses or the strength of Hercules.” But he is a person who by experience conducts himself according to the circumstances, as an ordinary prudent man. He shows a degree of skill, ability or competence which is general in the discharge of functions.
He is not a perfect citizen nor a “paragon of circumspection.” Winfield. As Winfield pointed out, the reasonable man’s standard is a guidance to show how a person regulates his conduct.
A driver should have the capacity to drive as an ordinary prudent driver. He need not show the skill of a surgeon, an advocate, an architect or an engineer. He must show his skill in his own work or profession.
In fact, “a reasonable man is a judicial standard or yardstick which attempts to reach exactness. This is because complete exactness may not be reached”. Hence, the judge first decides what a reasonable man does and then proceeds to find out whether in the circumstances of the case, the defendant has acted like a reasonable man. Conflicts do arise as it is not possible to specify reasonableness in all its exactness, or with specifications. Reasonableness can be best explained in cases of negligence.
Negligence is in fact the omission to do something which an ordinary prudent man would not do in the circumstances. Hence, reasonable man is a man who uses ordinary care and skill.
In Daly V. Liverpool Corporation it was held that in deciding whether a 70 year old woman was negligent in crossing a road, the standard was that of an ordinary prudent women of her age in the circumstances, and not a hypothetical pedestrian.
The standard of conduct is almost settled since the case of Vaughan V. Manlove. The defendant D’s hay stock caught fire and caused damage to p’s cottages. D was held liable as he had not acted like a prudent man:
In the Wagon Mound case (No 1) the test of “reasonable foresight” was applied and the defendants were held not liable. In fine, a reasonable man is only a legal standard invented by the courts.