CHAPTER 1: THE LAW OF TORTS

1. AN INTRODUCTION

Since all good books have a nice beginning so should this one. So here we go :

A line from T.S Eliot in Prufrock:

To lead you to an overwhelming question….

Oh, do not ask, “ What is it?”

This describes the nature of torts.  What is it that makes it so different from the other types of laws?  Perhaps the fact that it fills the gap in the law. Ok, so before we get into the legalese and the jargon, let me give you a good advice here. Make sure that  you have the basics right. Only then move on to the advanced concepts.

There is no exact definition that can tell you about what a tort means. But  then many jurists have defined tort in their own way. There are a number of definitions but let us go by the most accepted one.  The word tort is derived from the latin word ‘Tortum’ which means ‘twisted conduct’. This term tort is the equivalent of the English word ‘wrong’.

So, basically a tort is a conduct that is not proper and is ‘entangled, crooked and twisted’.

It is not easy to comprehend when a tort is committed.  If you commit a crime, it is easily identifiable but the same is not always true for a tort. Tort is a conduct for which a remedy lies in civil law.

It is a wrong committed against a private individual (remember that in criminal law wrongs are committed against the State). Put simply tort law is like a policeman who comes to your rescue and makes the wrongdoer pay (in monetary terms) for the wrong to you.

TORTS IN EVERYDAY LIFE

Tort law can be defined as a civil wrong arising when one individual breaches a legal duty which he owes to another individual. A legal duty arises when one is bound to act in a certain way because it is provided by a statute enacted by the Parliament and/or judge made law.

Claims in tort law are awarded unliquidated damages and are separate from claims in contract law. Unliquidated damages are monetary amounts meant as compensation which are not predetermined by parties but are decided in court by the judge or jury.

Now let CLATapult – CLAT Coaching in Kolkata explain it to you with the help of some examples.

If you go to your neighbor’s house you are expected to ring his doorbell and take his permission before you enter his house . You cannot go straight into his kitchen and start doing whatever you like. You have to take his permission before you help yourself with the cookies on his table.

If you do not do this, then what happens? You have behaved in a manner which is unacceptable and you have breached your duty towards your neighbor. A tort has been committed.

You may be doubtful about why you owe a duty to your neighbor in the first place and if so what is that duty.

In order to understand let us consider another example.

When a person comes to your house you expect him to follow certain basic rules like he should ring the bell, take your permission before he enters the house and opens your refrigerator to eat the vanilla ice-cream that you have kept inside.

If he does not do so, you feel annoyed. This means that he has violated your rights. Do you take that person to the court just because he ate the ice-cream without asking you?

You may or may not but regardless of your decision to sue, a tort has been committed because he has breached the duty he owes to you. The legal duty of your neighbor is to seek your permission before he sets foot on your land. Here you do have a right to take him to court.

 HOW JURISTS DEFINE TORTS

Different judges, jurists and academicians have given different definitions of ‘tort’.

According to Winfield, a  prominent jurist,

“Every wrongful act is actionable as a tort unless a justification for that can be shown.”

Jolowicz  gives the following definition:

“Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is  towards persons generally and its breach is redressible by an action for unliquidated damages”

Salmond and Hueston –  “A tort is a civil wrong for which the remedy is a common action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation”

Pollock an English jurist has defined torts as follows:

“The law of torts is a collective name for the rules governing many species of liability which although the subject matter is wide and varied, has certain broad features in common, enforced by the kind of legal process that are subject to similar exceptions”.

Fraser , author and an eminent jurist defines torts –

“It is an infringement of the rights in rem, against every other person or private individual giving a right of compensation at the suit of the injured party.”

You have gone through a number of legal definitions. Now it is time for you to note what is common to all these definitions.

1. A tort is a private wrong.
2. Remedy for a tort lies in civil law and not in criminal law.
3. It involves the violation of a legal duty.
4. It leads to liability on the part of the wrongdoer. Liability in this context is when a person is legally responsible for his act.
5. The compensation awarded in ‘unliquidated’ in nature.

Now, ‘unliquidated damages’ have nothing to do with liquids. These are damages which are not pre-calculated and predetermined but are determined in the court after the tort has taken place.

Note that failure to perform a ‘legal duty’ alone constitutes a tort. In this case moral and religious duties do not come within the ambit of duties for which remedy lies in tort law.

Suppose you fail to pray on a particular day. It is your religious duty which you have failed to perform, but it is not a tort because it is not a legally imposed duty.

Suppose you see a person needs help but you do not help him, it does not amount to a tort. This is because helping someone is a moral duty and it is up to you to decide whether you want to help or not.

However in the same case if a person is drowning and you jump into the water and pull him out but do not take him to the hospital and he dies, then it is a tort since you breached your legal duty of care towards him.

Torts can be as small as crossing over to another person’s  land without permission but it may also be as big as the Bhopal Gas Tragedy.

Consider when people gossip about others and say bad things behind their back such that it lowers the person’s image in the eyes of the people around him. This amounts to the tort of defamation about which you will learn later.

A few other examples of torts are given one by one.

Sunny and Bunny got into a fight over who would eat the last chocolate. During this fight Sunny gives Bunny a tight slap across his face. Sunny has committed the tort of battery.

Beyonce Singh loves listening to loud music without caring about her neighbor Honey Nigam who is an aged person. She has committed the tort of nuisance.

You will learn about the various kinds of torts in the later chapters.

ARE ALL WRONGS TORTS?

No, only civil wrongs are torts. A civil wrong is a wrong committed against a private individual.

Take the example where Beyonce Singh plays loud music. The society at large is not affected by this. It is not a wrong against the state.

This is to be seen in contrast with criminal law where the society at large is assumed to be affected and the criminal is a threat to all the members of the society. A contractual breach is a civil wrong but not a tort because damages for it are liquidated.

For example, Baddy throws water on the floor without the intention to injure Maddy. When Maddy enters the room later, he is unaware of the spilled water and he slips and falls down. Baddy has committed a tort of negligence here.

If Baddy pushes Maddy off the bridge with the intention to kill him he has committed the crime of attempt to murder.

If Baddy promises to give Maddy his villa in exchange of 2 lakhs and later he takes the money but does not transfer the ownership of the house, he has breached a contract.

THE LAW OF TORT OR THE LAW OF TORTS? TO BE OR NOT TO BE...

None of the two terms is wrong and both are used nowadays although it is still a topic of debate in tort law. Those who call it the law of tort do so on the basis of the Latin maxim-‘ubi  jus  remedium’. To translate that line for you, it means that ‘for every wrong there is a right.’  Thus the law governing  every civil wrong is called a tort. Those in support of calling it the law of tort, basically see it as one law governing a group of similar wrongs.

Those who call it the law of torts do so as they are the upholders of Pigeonhole Theory. Say if I enter into your garden without your permission, I have committed a wrong and you pigeonhole it to trespass. This means that certain situations are identified with fixed categories of torts. So they feel as if there are different types of wrongs that combine to form the tort law and therefore, they call it the law of torts. I would like to call it the law of torts for convenience in our study.

POSITION OF THE LAW OF TORTS IN INDIA

In India, tort law as it exists today, is derived from Common Law principles and English law specifically. Judicial decisions of the court of England, codified and uncodified taken together formed the tort law.

The 19^th and 20^th century were the periods when most  of the tort law developed. Since tort law is there to fill in the gaps in law and is meant to develop with change in society and situations, it  is largely uncodified. This is because it is difficult to identify each and every situation. Hence there are no statutes on tort law.

We in India therefore relied on the laws framed by England to deal with torts. Over the last century, the Indian law combined with the English law to form our tort law principles.

Tort law is uncodified (unwritten) in our country because it is dependent on the specifics of a situation and there is no one size that fits all. But as the saying goes, exceptions are always there. Some principles of tort law are codified such as the Consumer Protection Act,1986 and the Motor Vehicles Act,1988.

Tort cases are not very common in India because most people are unaware of their rights to sue under tort law . Also, the standard of compensation is not very high and the court proceedings take a lot of time.

It is a tedious process. But slowly, people are becoming aware of the presence of this law and their rights under it. For example, recently MS Dhoni filed a suit against the Zee News moving the Madras High Court seeking damages of Rs 100 crore on the claim of the tort of defamation.

Tort law cases can be serious, funny and sometimes strange as you will see in due course.

DIFFERENCES BETWEEN TORTS, CRIMES AND CONTRACTS

 TORTS:

1. It is largely uncodified with a few exceptions such as the Motor Vehicles Act,1988 and the Consumer Protection Act,1986.
2. Tort law is private in nature. It is a violation of a private person’s right. State is not involved and the parties can therefore the party has the right to chose whether or not to approach the court.
3. It involves a wrongful act. A legal injury must be caused.
4. Malice and intention have nothing to do with torts except in some specific torts such as malicious prosecution.
5. The compensation is in the form of unliquidated damages.

CRIMES:

1. It is almost completely codified in the form of the Indian Penal Code, 1860 and the Criminal Procedure Code.
2. It is a public wrong since it is a wrong against the society at large. State is a party to the case and even if the victims may want to settle the case among themselves or withdraw the case, it is not possible because the wrong is against the society at large.
3. Both the mental element (mens rea) and the act(actus reus) must be necessarily present for an act to be a crime.
4. Malice, ill-will, bad intention and guilty mind are one of the important requisites of a crime.
5. The criminal is punished with either an imprisonment for a certain number of years or he may be asked to pay a fine. This fine goes to the State Treasury and not to the victims. The main object in crimes is punishment and hence the element of compensation is not there.

CONTRACTS:

1. It is almost entirely codified although some unwritten principles are still
2. A contract is entered into voluntarily between two parties so a breach is a private wrong and the parties to the contract can choose to compromise if they wish to. Usually third parties are not interested but there are cases where a person can approach because he is a beneficiary to the contract.
3. Malice is of no consequence except in contracts where a person induces another person to enter into a contract thereby causing loss to a party with whom the person had already contracted.
4. Consideration, multiplicity of parties, promise ,etc. are some important requirements of a contract.
5. The damages are liquidated or precalculated. The parties can decide the amount of compensation beforehand.

APPLYING LAWS SIMULTANEOUSLY

When an act qualifies as a wrong in more than one area of law, then it depends upon the victim to choose what she wants.

If the act qualifies both as a crime as well as a tort, then the person can bring a case in both areas of law. She can file a case in tort law for compensation and under criminal law for punishment.

But when an act is a wrong both under tort law as well as under contracts, then the person needs to decide whether he will file a case under torts or under contracts. He cannot bring a case under both. This is because the aim of both is compensation. So, the person who has performed the wrong should not be made to pay twice as this will be unfair because he has committed one wrong and not two.

For example,  A beats up B leading to B having a number of fractures and heavy bleeding.  B can file a case of battery under tort law and a case of grievous hurt under criminal law. Now, consider a case in which A breaches a contract with B. In this case he has to decide in which forum he wants to pursue the case. He cannot sue under both tort law and contract law.

Here is a bit of advice. Please go by the principle. Say, if it talks of defamation, then see if the principle is of crimes or torts and apply accordingly. Please do not mix the concepts of one in the other.

AT A GLANCE

1. Torts– A civil wrong which is private in nature and occurs when a person breaches his duty. Unliquidated damages are awarded as compensation.
2. For an act to qualify as a tort, the following are required:

• Civil wrong
• A breach of legal duty
• Private in nature
• Unliquidated damages as compensation

3. Unliquidated Damages

Damages that are not precalculated or predetermined but are calculated after the damage has taken place.

4. Liquidated Damages

Damages as in contracts where the damages are precalculated and fixed and in case of a breach, they are paid to the aggrieved party.

5. A tort is an infringement of a private or a civil right and is a wrong against an individual.
6. The injured party is called the plaintiff. He is the person against whom the wrong is committed.  He can bring a suit against the tortfeasor for damages.
7. A tortfeasor is the person who commits the tort.
8. The act committed by the tortfeasor or the tort committed is called the ‘tortious act’.
9. The main objective of tort law is compensation or damages and not punishment. Tort law aims at restoring the injured party to the original level. Apart from this, sometimes the court may grant exemplary damages in certain cases, to make others deter from committing the same tort again.
10. Tort is a civil wrong but it is important to remember that all civil wrongs are not torts. For example, breach of contract qualifies as a civil wrong but it is different from a tort in many senses. Thus, a civil injury independent of contract for which the suitable remedy is an action for ‘unliquidated damages’.