Meaning of tort, Evolution, Objectives and Essentials
Updated: May 29, 2021
The word tort is of French origin and is equivalent to the English word wrong. It is derived from the Latin word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked.
Meaning of Tort:
A tort is commonly used to mean a breach of duty amounting to a civil wrong.
Salmond defines a tort as a "civil wrong for which the remedy is a common-law action for un-liquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation".
A tort arises due to a person’s duty to others which is created by one law or the other. A person who commits a tort is known as a tortfeasor or a wrongdoer. Where they are more than one, they are called a joint tortfeasor.
Their wrongdoing is called a tortuous act and they are liable to be sued jointly and severally.
The principal aim of the Law of tort is compensation for victims or their dependents. Grants of exemplary damages in certain cases will show that deterrence of wrongdoers is also another aim of the law of tort.
Evolution of Law of Torts in India
The law of torts in India is mainly the English law of torts which is based on the principles of the ‘common law’. This was made suitable to the Indian conditions in accordance with the principles of justice, equity, and good conscience. However, the application of tort laws in India is not a very regular event and one can even go to the extent of commenting that tort as a law in India is far from being looked upon as a major branch of law and litigation.
In the Indian legal system, the concept of ‘punishment’ occupies a more prominent place than ‘compensation for wrongs.
It has been argued that the development of the law of tort in India need not be on the same lines as in England.
In M.C. Mehta v. Union of India,
Justice Bhagwati said, “we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our jurisprudence.”
Objectives of Law of Torts
To determine the rights between parties to the dispute
To protect certain rights recognized by law
To prevent the continuation or repetition of a harm
To restore the property to its rightful owner
Constituents of Tort
The law of tort is an instrument to enforce reasonable behavior and respect the rights and interests of one another. A protected interest gives rise to a legal right, which in turn gives rise to a corresponding legal duty. An act, which infringes a legal right, is wrongful but not every wrongful act is a tort.
To constitute a tort or civil injury, therefore:
1. There must be a wrongful act or omission.
2. The wrongful act or omission must give rise to legal damage or actual damage and;
3. The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages.
4. The wrongful act or omission may however not necessarily cause actual damage to the plaintiff to be actionable. Certain civil wrongs are actionable even though no damage may have been suffered by the plaintiff.
1. Wrongful Act
An act or omission which prejudicially affects one’s legal right. Such a legally violating wrongful act is called actus reus. Thus, liability for a tort arises when the wrongful act amounts to either an infringement of a legal private right or a breach.
An act, which at first, appears to be innocent may become tortuous if it invades the legal right of another person e.g. the erection in one’s land which obstructs light to a neighbors’ house. Liability for a tort arises when the wrongful act amounts to an infringement of a legal right or a breach.
2. Damage
The sum of money awarded by the court to compensate damage is called damages. Damage means the loss or harm caused or presumed to be suffered by a person as a result of some wrongful act of another. Legal damage is not the same as actual damage.
The real significance of legal damage is illustrated by two maxims namely:
Injuria sine damno and Damnum sine injuria
Injuria sine damno (Injury without damage)
It means violating a legal right without causing any harm, loss, or damage to the plaintiff. There are two kinds of torts: firstly those torts are actionable per se, i.e. actionable without the proof of any damage or loss. For instance, trespass to land is actionable even though no damage has been caused as a result of the trespass.
Second, are those torts that are actionable only on the proof of some damage caused by any act. For successful actions the only thing which has to be proved is that the plaintiff’s legal right has been violated, i.e. there is injuria.
Case Law: Refusal to register a voter was held as an injury per-se even when the favorite candidate won the election – Ashby Vs. White (1703). This rule is based on the old maxim of law, Ubi jus ibi remedium, which means that where there is a right, there is a remedy.
Damnum sine injuria (Damage without injury)
It means “There may be an injury inflicted without any act of injustice.” There is another term like it that is “damnum absque injuria“, which means damage or harm without an injury in the legal sense. In other words, a loss or injury to someone which arises out of someone exercising a legal right does not give that person a right to sue the person causing the loss.
Case Laws:
In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles was annoyed by the refusal of Bradford Corporation to purchase his land for their water undertaking. Out of spite, he sank a shaft on his land, which had the effect of discoloring and diminishing the water of the Corporation, which percolated through his land. The House of Lords held that the action of Pickles was lawful and no matter how ill his motive might be he had a right to act on his land in any manner that so pleases him.
In the case of Mogul Steamship Co. v Me-Gregory (1892), certain ship owners combined. To drive a ship-owner out of the trade by offering cheap freight charges to customers who would deal with them. The plaintiff who was driven out of business sued the ship-owner, for loss caused to him by their actions. The court held that a trader who is ruined by legitimate competition of his rivals could not get damages in tort.
3. Remedy – Development of 'Ubi jus ibi Remedium'
The law of torts is said to be a development of the maxim ubi jus ibi remedium (there is no wrong without a remedy). Whenever the common law gives a right or prohibits an injury, it also gives a remedy. It is an elementary maxim of equity jurisprudence that there is no wrong without a remedy.
The maxim means only that legal wrong and legal remedy are correlative terms.
A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. The essential remedy for a tort is an action for damages, but there are other remedies also e.g., injunction, restitution, etc.
Case Law:
In the case of Abbot v. Sullivan, the court held that there is a right to receive a time-barred debt but there is no remedy to recover it.
For more resources, articles and opinions on law of torts, click here.
REFERENCES-
1. Harpwood, Vivienne (2000), Principles of Tort Law, Cavendish Publish Company
2. Bangia, R.K., (2019), The Law of Torts, Allahabad Law Agency Law Publishers
3. Peel, W. E; Goudkamp, J. , (2004), Winfield and Jolowicz on Tort, Thompson Reuters
4. Levmore, Saul; Sharkey, Catherine M., (2009), Foundations of Tort Law, Lexis Nexis.
