Definitions Law of Torts
- According to Salmond; “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.”
- According to Winfield; “Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”
- According to Faster; “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.”
- According to the Section 2(m) of the Limitation Act, 1963; “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”
Nature & Scope of Law of Torts
The word “tort” has been derived from the Latin term “Tortum” which means to twist which also includes that conduct which is not straight or lawful, but, on the other hand, twisted, crooked or unlawful. It is equivalent to the English term “wrong”.
This branch of law consists of various wrongful acts whereby the wrongdoer (i.e., the tort feasor) violates some legal right vested in another person. The law imposes a duty to respect the legal rights vested in the members of the society and the person making a breach of that duty is said to have done the wrongful act. Therefore, ‘tort’ is a breach of duty recognized under the law of torts.
Therefore, it is to be noted that:
- Tort is a civil wrong as opposed to a criminal wrong.
- Every civil wrong is not a tort.
There are other civil wrongs also, important of which are breach of contract and breach of trust.
Therefore, ‘tort’ may be defined as a civil wrong which is redressible by an action for unliquidated damages, and which is other than a mere breach of contract or breach of trust. Therefore;
- Tort is a civil wrong.
- This civil wrong is other than a mere breach of contract or breach of trust.
- This wrong is redressible by an action for unliquidated damages.
Tort is a civil wrong
- The basic nature of civil wrong is different from a criminal wrong.
- In the case of a civil wrong, the injured party, i.e., the plaintiff institutes civil proceedings against the wrongdoer, i.e., the defendant. In such a case the main remedy is damages where the plaintiff is compensated by the defendant for the injury caused to him by the defendant.
- In the case of a criminal wrong, the criminal proceedings against the accused are brought by the State and the victim of the crime, i.e., the sufferer is not compensated rather punishment is inflicted upon the wrongdoer to administer justice.
- In some instances it is possible that a wrongful act may result into a tort as well as a crime, simultaneously. In such a case both the civil and the criminal remedies would concurrently be available where a civil action against the defendant may require him to pay compensation and a criminal action against the wrongdoer may require the same person to be liable for punishment.
Tort is other than a mere breach of contract or a breach of trust:
- Tort is that civil wrong which is not exclusively any other kind of civil wrong and if the wrong is a mere breach of contract or a breach of trust then it would not be considered to be a tort.
- For a particular wrong to come under the ambit of tort, the process of elimination states 3 conditions to be checked which are;
- To see whether the wrong is civil or criminal.
- If it is a civil wrong then it has to be further checked whether it exclusively belongs to another recognized category of civil wrongs, like breach of contract or breach of trust.
- If it is found that it is neither a mere breach of contract nor any other civil wrong then we can say that the wrong is a ‘tort’.
- Furthermore, there is a possibility that the same act may amount to two or more civil wrongs, one of which may be a tort. In such a case the plaintiff cannot claim damages twice.
Tort is redressible by an action for unliquidated damages
- Damages is the most important remedy for a tort. After the wrong has been committed, generally it is the money compensation which may satisfy the injured party. After the commission of the wrong it is generally not possible to undo the harm which has already been caused.
- There are other remedies also which could be available when the tort is committed.
- Damages in the case of a tort are unliquidated. It is this fact which enables us to distinguish tort from other civil wrongs, like breach of contract or breach of trust, where the damages may be liquidated. Liquidated damages mean such compensation which has been previously determined or agreed to by the parties. When the compensation has not been so determined but the determination of the same is left to the discretion of the court, the damages are said to be unliquidated.
The nature of a tort can be understood by distinguishing;
- Tort and Crime.
- Tort and duty in other civil cases, viz., a Contract, a Trust and a Quasi-contract.
Tort & Crime distinguished
|Tort is a civil and private wrong.||Crime is a public and criminal wrong.|
|It is the infringement or privation of private or civil rights belonging to individuals.||It is the breach and violation of public rights and duties which affect the whole community.|
|The injured party, i.e., the plaintiff, institutes civil proceedings against the wrongdoer, i.e., the defendant.||The criminal proceedings against the accused are brought by the State.|
|The main remedy is damages where the plaintiff is compensated by the defendant for the injury caused to him by the defendant.||The individual who is the victim of the crime, i.e., the sufferer, is not compensated whereas justice is administered by punishing the wrongdoer.|
|Compromise can be done by the parties by going beyond the court by waiving of their rights.||No such concept of compromise and no waiver of rights of the parties.|
|Principle of vicarious liability is there in tort.||There is no such principle of vicarious liability in crime rather there is individual liability.|
|Intention is usually irrelevant.||Intention (i.e., mens rea) is the basis and foundation of crime.|
Tort & Breach of Contract distinguished
|Tort||Breach of Contract|
|A tort results from the breach of such duties which are not undertaken by the parties themselves but which are imposed by law.||A breach of contract results from the breach of a duty undertaken by the parties themselves.|
|Duties imposed by law under law of torts are not towards any specific individual or individuals but they are towards the world at large (Right in rem) [Donoghue v. Stevenson, 1932].||In a contract the duty is based on the privity of contract and each party owes duty only to the other contracting party, i.e., a stranger to a contract cannot sue (Right in personam) [Dunlop Pneumatic Type Co. v. Selfridge & Co., 1915 and Tweddle v. Atkinson and Jamnadas v. Ram Autar, 1912].|
|In tort the damages are always ‘unliquidated’.||In a breach of contract the damages may be ‘liquidated’.|
Privity of Contract & Tortious Liability
- Winterbottom v. Wright, 1842 was responsible for introduction of “Privity of contract fallacy” into the law. The action in tort is independent of a contract and the rule that the privity of a contract is essential for an action in tort is highly irrelevant and unjust.
- In Donoghue v. Stevenson, 1932 the consumer could bring an action in tort against the manufacturer even though there was no contract between the manufacturer and the consumer. Whatever the contract it was only between the manufacturer and the retailer.
- Klaus Mittelbachert v. East India Hotels Ltd., AIR 1997 Delhi 201; Facts of the case: There was contract between Lufthansa, a German Airlines and Hotel Oberoi Inter-Continental of Delhi for the stay of the crew of Lufthansa as guests in the hotel. The plaintiff Klaus Mittelbachart, a co-pilot in Lufthansa stayed in the hotel for a few days. During his stay, as the plaintiff took a dive in a swimming pool in the hotel, due to defective design of the swimming pool, his head hit the bottom of the pool and he received serious head injuries as a result of which he was paralysed and continued in agony for 13 years before he died. In an action for damages by the plaintiff one of the defences pleaded was that he was a stranger to contract, as the contract for stay was made between his employer, i.e., Lufthansa and the hotel. Held: The plea was rejected. It was held that he could sue under Law of Contract as a beneficiary of the contract. Moreover, for an action under Law of Torts for compensation the plea of stranger to contract was irrelevant. Due to hazardous nature of the premises the rule of absolute liability was applied and the defendants were required to pay exemplary damages amounting to 50 lakh rupees.
Tort & Breach of Trust distinguished
|Tort||Breach of Trust|
|Damages in a tort are unliquidated.||In the case of breach of trust by the trustee, the beneficiary can claim such compensation which depends upon the loss that the trust property has suffered. The amount of damages being ascertainable before the beneficiary brings the action, the damages, in the case of a breach of trust, are liquidated.|
|Duties are imposed by law.||The rights and duties of the 3 parties (i.e., Author, Trustee, and Beneficiary) are confined among these 3 only.|
|Tort constitutes right in rem.||Trust constitutes right in personam.|
|The main remedy under breach of tort is compensation.||The main remedy under breach of trust is reimbursement.|
|Liability under breach of tort is determined by the court.||Liability in case of breach of trust is determined according to Indian Trust Act, 1882 under sections 23 to 30.|
|It is an uncodified or unwritten statute.||It is a codified statute, i.e., Indian Trust Act, 1882.|
|It constitutes 2 parties, i.e., the plaintiff and the defendant, i.e., the tort feasor.||It constitutes 3 parties, i.e., author, trustee and beneficiary.|
Tort & Quasi-Contract distinguished
|Duty is imposed on the public at large as a whole.||Duty is imposed on a particular individual.|
|Tort constitutes right in rem.||Quasi-contract constitutes right in personam.|
|Law of torts, apart from a right to damages, grants other remedies also and the damages are in the form of unliquidated sum of money.||The law of quasi-contract gives a right only with respect to money and generally it is a liquidated sum of money.|
|The court generally acts on the basis and the principles of justice, good conscience and equity.||The court is bound to exercise its powers according to the provisions of quasi-contract mentioned under Indian Contract Act, 1872.|
|It is not codified under any statute.||It is defined under the Indian Contract Act, 1872.|