Nature and Definition of Torts
Author: Abhay Saxena, Bharati Vidyapeeth New Law College, Pune.
The term “Tort” has been derived from the Latin term “Tortum” which means to twist. It means twisted, crooked, unlawful, or a wrongful act rather than an act that is straight or lawful. Thus, Tort may be defined as a civil wrong which is repressible by an action for unliquidated damages and which is other than a mere breach of contract or breach of trust. The law of torts is an uncodified law but it is mentioned under section 2(m) of the Limitation Act, 1963.
“Tort as a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.”- Salmond
“Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally and its breach is repressible by an action for unliquidated damages.”- Winfield
Nature of a Tort:
A Tort is a civil wrong and thus can be differentiated from various other forms like Crime, Contract, and Breach of trust.
The difference between a tort and a crime is as follows:
Firstly, Tort is an infringement of a private or civil right and therefore it is considered to be wrong against a person to whom the damage has been caused. Crime, on the other hand, is a public wrong.
Secondly, in tort the injured party himself brings an action against the wrongdoer whereas, in crime, the wrongdoer is prosecuted by the state even though the victim, in this case, is also an individual.
The difference between a tort and a contract is as follows:
Firstly, in contract, the parties, with their free consent, undertake to perform certain duties while in tort; the duties are imposed by law.
Secondly, in the contract, the contracting parties owe a duty to each other only. A duty not to commit a tort is owed to persons generally and not to any particular individual.
Also, a tort is different from breach of trust as in tort, the damages are unliquidated but in breach of trust, they are liquidated as they are ascertainable before the beneficiary brings an action against the trustee.
Essentials of a tort:
There are two essentials to commit a tort:
1. Act or Omission: To make a person liable in tort, he must have committed some act or omission in the performance of his legal duty. For example, entering someone’s property without any justification or defaming a person of his reputation. These acts result in torts of Trespass and Defamation.
2. Legal Damage: To be successful in an action for tort, the plaintiff has also to prove legal damage or an injury. Unless there is a violation of a legal right, an action under the law of torts cannot lie.
The legal damages are of two types:
(A) Injuria Sine Damno: It means a violation of a legal right without causing any damage to the other person. Since there is a violation of a legal right; it is actionable even without proof of damage.
A landmark case will help better understand this principle:
Ashby v. White
In this case, the defendant, a returning officer in an election, wrongfully refused to take the vote of the plaintiff, an eligible voter. The plaintiff didn’t suffer any loss by this refusal as the candidate for whom he wanted to vote, won the election. The defendant was, however, held liable, because the plaintiffs’ legal right had been violated.
(B) Damnum Sine Injuria: It means causing damage without the infringement of a legal right. Unless there is an infringement of a legal right, mere causing damage isn’t actionable.
The following case law will help us better understand this principle:
Gloucester Grammar School Case:
In this case, the defendant set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs’ had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs’ had no remedy for the loss thus suffered by them.
Whether mental element is of any relevance in Tort:
Generally, under criminal law, Mens Rea or a guilty mind is a necessary element for liability. But the same is not the case with the Law of Torts. Torts such as assault, battery, false imprisonment, deceit, malicious prosecution and conspiracy require the state of mind of a person and are relevant to ascertain the liability while torts such as negligence or defamation do not require a mental element and thus it is completely irrelevant.
Types of Damages:
Damages refers to money paid by one side to the other; it is a legal remedy.
- Nominal Damages: In the situation where there has been a breach but the non-breaching party has really suffered no loss or cannot prove what his loss is, he is entitled to nominal damages.
- Compensatory Damages: Damages paid to directly compensate the nonbreaching party for the value of what was not done or performed are compensatory damages.
- Punitive Damages: Punitive damages are those awarded for the purpose of punishing a defendant in a civil action, in which criminal sanctions are of course unavailable. They are proper in cases in which the defendant has acted willfully and maliciously and are thought to deter others from acting similarly.
- Contemptuous Damages: In these type of damages, the Court recognizes that the right of the plaintiff is violated but to show that the suit brought by the plaintiff is of such a trivial nature that it has only wasted the time of the Court, the Court awards a meager amount to the plaintiff as damages.
Thus, the law of torts imposes a duty to respect the legal rights vested in the members of the society and the person making the breach of duty is said to have done the wrongful act and is penalized under this law. The law of torts is mostly used in countries like the USA, Canada, and others while India uses only a part of it which is the “Consumer Protection Act”.