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Origin and Meaning
Tortum (Latin) -----> Tort (English) to twist A tort (in law) ------> A twisted/ wrongful act A tortfeasor ------> One committing a tort
Duty and Deviation
Legal rights and duties ----> Imposed by the law Breach/ Violation of that duty/ duties leads to a wrongful act/ omission.
Tort as a Breach of Duty
The imposition by the law to do/ not do a particular thing, results in ----> imposing a duty on the person (expected to abide by it) causing a breach of these duties set by the law, results in the commission of a wrong If the imposition (act or omission) is classified under the ‘Law of Torts' , then the breach/ deviation from these leads to a tort.
Winfield’s definition of a Tort*
Winfield defines a tort in the following terms A. Tortious liability (due to breach) B. Duty is toward private individuals. (i.e. it is a civil wrong) C. Violation is redressible by an action. for unliquidated damages Thus, Tort is a civil wrong, which results in the infringement of right(s) which are deemed private in nature (specific to individuals), resulting in the occurrence of undetermined/ unliquidated damages. Thus, All torts are civil wrongs, but all civil wrongs are not torts. Right (against Tort) in Rem- Personem The right of the plaintiff (before being infringed) is a ‘right in rem’ which upon violation turns into a ‘right in personem’; i.e. the defendant.
Tort and Breach of Contract
Wrong committed | | The wrong is civil in nature | | The damages are pre- determined | | The wrong is a breach of contract and not a tort
Classification of Torts
A. On the defendant’s willingness
- Intentional torts
- Negligent torts
- Strict liability torts B. On the type of affect (Tort affecting) The person (Trespass, Negligence) The family (Wrongful death of relative The reputation (Defamation) The property (Trespass to land) The economic rights (inducement of breach of contract) C. Other torts Other miscellaneous torts
Normal Remedy for a tort
The normal remedy for a tort is an award of pecuniary damages as a compensation for the harm (through injuria) done. (In certain cases, other forms of remedy may be much more suitable. E.g. For nuisance an injunction is a competent remedy)
Characteristics of Tort
- Tort is a civil wrong A. Classifying the wrong as a civil wrong. Tort is distinguished from criminal wrongs in the way that the plaintiff institutes civil proceedings instead of criminal proceedings (in a competent court of law). The sufferer (plaintiff) is usually/ normally compensated by way of awarding of
tortious cases and NOT in criminal cases. E. Natural remedy (for a tort and a crime) *refer to normal remedy for a tort. F. Detention in case of civil (and criminal) cases. In civil cases, the detention is imposed in order to put pressure upon the defendant to perform a certain duty that would/ is capable of leading to the restoration of rights of the plaintiff. In criminal cases, imprisonment is imposed as a penalty for having done the wrongful act.
- Tort and Breach of Contract are distinct wrongs A. Imposition of the duty In case of a tort, the duty is imposed by the law and not those parties onto themselves which are now involved. In case of a breach of contract, the duty is imposed by the parties (involved in the contract) onto themselves. The violation of these self- imposed duties (i.e. the agreement to uphold the agreement) leads to the said breach. Both the parties (, here) enter freely into the contract. B. Necessary involvement of Privity of Contract. The privity of contract is the relation between the involved parties (in the contract) through which they are entitled to sue each other, but prevents a third party from doing so (who is not a party to the contract), UNLESS the third party is a beneficiary of the contract. Since the relation established voluntarily by the contracting parties, it’s presence is a pre- requisite in claiming any damages (in case of a breach). However in case of tortious liability, the same is not necessary to claim damages, since the same relation is NOT established by the parties BEFORE the occurrence of the tort. (E.g. There is a contract between A and B There is a breach caused by A through a tortious act. B suffers damages due to the breach. C, a third party suffers damage due to the breach as well.
Can C bring an action against A? (C is a non- beneficiary of the contract) Relation b/w A and B ----> via contract Rel. b/w A and C -----> via duty imposed by law A has committed a tort leading to the breach of contract. The relation of privity need not be present between A and C but necessarily between A and B, due to the presence of the contract. Since it is the tort that has led to C suffering an injury and a to B (through breach), C is entitled to sue A, for commission of the tort, while B is entitled to sue A for breach of contract.
- Tort and Breach of Trust are distinct wrongs. A. Nature of damages Damages in case of a breach of trust (and contract) are liquidated. While those due to a tort are not. (i.e. they are unliquidated damages). B. Origin of the law. The breach of trust can be redressed in the court of Chancery. The law of torts has it’s own origin in Common Law.
- Law Torts and Law of Quasi Contract are two distinct laws. (E.g. ‘A’ is entitled to a reserved seat in a particular college. ‘B’ is not entitled to such a seat. B takes admission in the same college with the reserved seat, due to which A is not being able to gain admission in the college. B has thus committed a tort. A has suffered a loss in terms of TIME that he could have spent studying in the college, and A has also been wrongfully DENIED ADMISSION. A files a suit against B. The court depending upon the ground to sue B asks B to restore the lost advantage (to A) or it could also ask B to compensate for doing so IN ADDITION to restoring the benefit to A. A. Nature of damages The damages awarded under the law of quasi contract are liquidated and ALWAYS pecuniary. While those due to a tort may be pecuniary (normally), but are strictly unliquidated.
- Actionable per se
- Actionable via proof of damage caused Since the maxim speaks about the absence of any such damage caused, it only talks about actionable per se, torts. (E.g. trespass to land) All infringement of right imports a damage to the plaintiff. Although the damage may not be substantial. Thus in restoring the violated right, damages are awarded which are NOMINAL in nature. The purpose of doing so, is to uphold the principle of ‘Ubi jus Ibi remedium' (where there is an injuria, there is a remedy). Thus all infringement of right(s) have to be met with restoration of that right IRRESPECTIVE of any substantial damage caused. B. Damnum sine Injuria (Damages caused w/o any infringement of any right) Causing damage, however substantial it maybe, is not actionable in law UNLESS the damage caused is due to the infringement of a right.
**Relevance/ Irrelevance of Mental element in Tortious
liability**
In certain circumstances, the mental element (of intention) maybe relevant. (Motive is always irrelevant) A. Mental element relevant (Fault when relevant) In such cases, we have to see whether a particular act done was done with a particular intention or not. If done so with an ill will, the doer is held liable. E.g.1. Inevitable Accident. If the defendant’s act (non natural) is innocent with respect to it being impossible to not carry it out, i.e. it HAD to be carried out, he may be excused from it’s liability. (This act is different from ‘act of god’ such that it is a non- natural act, here)
E.g.2. Necessity The condition of necessity arises when the defendant is COMPELLED to cause a SMALLER HARM INTENTIONALLY with the intention of AVOIDING the GREATER HARM. The individual involved in such an act is NOT liable for the (smaller) harm caused. B. Mental element irrelevant (Liability w/o fault) Since the mental element is irrelevant here, the liability arises even in the absence of a wrongful intention or negligence. In such cases,
- Innocence
- Honest mistake, or
- Absence of complete (adequate) knowledge is NOT A DEFENCE. E.g. In case of defamation (under law of torts) the defendant can be made liable even when he did not intend to defame (slander/ libel or both), but the act turned out so due to the absence of adequate knowledge of the defendant, (which is not a defence).
Malice in Law and Malice in Fact
- Malice in Law (absence of evil motive) Malice in law refers to an act, which is wrongful and such having done so without a just cause or an excuse. The act (wrongful) is carried out with the ill intention to carry it out, but in the absence of an evil motive. E.g. Stealing carried out by a thief in order to feed the poor, is an act which refers to the malice in law. Such shows the presence of a wrongful act (stealing) actuated by an ill intention (willingness to steal) in the absence of an evil motive (to feed the poor). However a motive is NOT relevant to determine a person’s liability, and is thus held liable in such cases. As Viscount Haldane describes,
