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NATURE AND DEFINITION OF TORT The word tort has been derived from the Latin term 'tortum’, which means 'to twist'. It 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 'torts' or wrongful acts whereby the wrongdoer violates some legal right vested in another person. Some Definitions of Tort Some of the important definitions, which indicate the nature of this branch of law, are as under :
- 'Tort means a civil wrong which is not exclusively a breach of contract or breach of trust"—S. 2(m), the Limitation Act, 1963.
- "It 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." —Salmond.
- "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."—Winfield.
- "It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party."—Fraser. The basic idea which is indicated by these definitions is—Firstly, tort is a civil wrong, and secondly, every civil wrong is not a tort. We may define tort 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. Thus, it may be observed that : (1) Tort is a civil wrong; (2) This civil wrong is other than a mere breach of contract or breach of trust; (3) This wrong is redressible by an action for unliquidated damages. (1) Tort is a civil wrong Tort belongs to the category of civil wrongs. 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. The plaintiff is compensated by the defendant for the injury caused to him by the defendant. In the case of a criminal wrong, on the other hand, the criminal proceedings against the accused are brought by the State. Moreover, in the case of a criminal wrong, the individual, who is the victim of the crime, i.e., the sufferer, is not compensated. Justice is administered by punishing the wrongdoer in such a case. It is, however, possible that the same act done by a person may result in two wrongs, a crime as well as a tort, at the same time. In such a case, both the civil and the criminal remedies would concurrently be available. There would be civil action requiring the defendant to pay compensation as well as a criminal action awarding punishment to the wrongdoer. (2) Tort is other than a mere breach of contract or breach of trust Tort is that civil wrong which is not exclusively any other kind of civil wrong. If we find that the only wrong is a mere breach of contract or breach of trust, then obviously it would not
be considered to be a tort. Thus, if a person agrees to purchase a radio set and thereafter does not fulfil his obligation, the wrong will be a mere breach of contract. It is only by the process of elimination that we may be able to know whether the wrong is a tort or not. First, we have to see whether the wrong is civil or criminal; if it is a civil wrong, it has to be further seen if 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'. It may be noted that there is a possibility that the same act may amount to two or more civil wrongs, one of which may be a tort. For example, if A delivers his horse to B for safe custody for a week and B allows the horse to die of starvation, B's act amounts to two wrongs—breach of contract of bailment and commission of tort of negligence. Since both the wrongs are civil wrongs and damages is the main remedy for any kind of civil wrong, the plaintiff can claim damages either under the law of torts for negligence, or for the breach of contract of bailment. He cannot claim damages twice. (3) Tort is redressible by an action for unliquidated damages After the commission of the wrong, it is generally not possible to undo the harm which has already been caused. If, for example, the reputation of a person has been injured, the original position cannot be restored back. The only thing which can be done in such a case is to see what is the money equivalent to the harm by way of defamation and the sum so arrived at is asked to be paid by the defendant to the plaintiff. 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 means 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 Generally, the parties are not known to each other until the tort is committed and moreover, it is difficult to visualize beforehand the quantum of loss in the case of a tort and, therefore, the damages to be paid are let to be determined at the discretion of the court. Such damages, therefore, are unliquidated.
No Tort Contract 1) In tort, no privity exists or is needed as harm is always inflicted against the will of the party injured. In contract, there must always exist privity of contract between parties i.e. the parties must be legally bounded each to other. 2) In case of torts, minor can be sued and damages are paid out of his property. In contract, minority is a good defense as a minors contract is void-ab- inition and no rule of estoppel applies. (rule of estoppel / another to believe a certain state of things exists which in fact is not true, then in such a case he is not afterwards allowed to deny it). 3) A tort is inflicted without or against the consent of the party i.e. the obligation arises without any consent. In a contract, obligation is founded on the consent of the parties i.e. consent is the essence of a contract. 4) In torts, mistake is no no defense, even if it is innocent. If A enters B’s House by mistake, action lies in tort for trespass. In contract, a contract entered into by mistake is void. But mistake of law one’s own country is no defense as everybody is supposed to know the law of ones own country. 5) In torts, tort is a violation of infringement of a right in Rem. i.e. rights available against the world at large. In case of contract it is violation of a right in personam i.e. a right available and enforceable against a particular persons. 6) In case of a tort the duty is fixed or imposed by law and is owed to the community at large. In case of contract the duty is fixed by the will and consent of the parties and it is owed to a definite person or persons. 7 In torts, motive is often taken into consideration. In contract, the ,motive for the breach is immaterial 8) In torts, damages awarded may be real, exemplary unliquidated or contemptuous In contract real and liquidated damagews are awarded. Exemplary damages are rarely awarded. 9) The period of limitation in case of torts usually runs from the date when the damage is suffered. In contract , the period of limitation rems from the date of the breach Tort
- The plaintiff is entitled to get unliquidated damages. ADVERTISEMENTS:
- In the law of torts, the duty is towards persons generally. Every person is under certain obligations against other public, i.e. not to cause injury or harm, etc. These duties and rights of every person is “rights in rem.”
- In tortious liability, the plaintiff and the defendant may or may not knew each other before the tortious liability arises. Quasi-contract
- Injunctions, specific restitution of property, and the payment of liquidated damages of money by way of penalty, etc. are the legal remedies available for plaintiff under quasi-contracts. ADVERTISEMENTS:
- There is a contract implied by the law, and therefore contractual liability is imposed upon the defendant. The plaintiffs rights against the defendant are “rights in personam.”
- In quasi-contractual obligations, generally, the plaintiff and defendant know each other from the beginning, and then it ripens into contractual liability.
B’s house without any justification then, in that case, there is a violation of the legal right of B and therefore this maxim is applicable. In such cases, there is no need to prove that as a consequence of an act, the plaintiff has suffered any harm. For a successful action, the only thing which has to be proved is that the plaintiff's legal right has been violated, i.e., there is injuria. Ashby v. White1 is a leading case explaining the maxim injuria sine damno. In this case, the plaintiff succeeded in his action, even though the defendant's act did not cause any damage. The plaintiff was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiff's vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won the election in spite of that. It was held that the defendant was liable.2 Holt, C.J. said : "If the plaintiff has a right, he must of necessity. In Bhim Singh v. State of J. & K.,2 the petitioner, an M.L.A. of J & K. Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. He was not produced before the Magistrate within requisite period. As a consequence of this, the member was deprived of his constitutional right to attend the Assembly session. There was also violation of fundamental right to personal liberty guaranteed under Article 21 of the Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to Rs. 50,000 were awarded to him Damnum sine injuria It means damage which is not coupled with an unauthorized interference with the plaintiff's lawful right. Damnum Sine Injuria is a maxim, which refers to injury which is being suffered by the plaintiff but there is no violation of any legal right of a person. In such circumstances, where there is no violation of the legal right of but the injury, or damage is being suffered by the plaintiff, the plaintiff can’t bring an action against the other for the same, as it is not actionable in law, unless there is some infringement of a legal right is present. Damnum Sine Injuria, the literal meaning of the word refers to loss or damage in terms of money, property or any physical loss without the infringement of any legal right. It is not actionable in law even if the act so did was intentional and was done to cause injury to other but without infringing on the legal right of the person.
Gloucester Grammar School Case2 explains the point. There the defendant, a schoolmaster, 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 In Ushaben y. Bhagyalaxmi Chitra Mandir,4 the plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting the film named "Jai Santoshi Maa". It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since there was no violation of a legal right, request of injunction was rejected. In Chesmore v. Richards,2 the plaintiff, a millowner, was for the past 60 years, using water for his mill from a stream which was fed by rainfall percolating through underground strata to the stream, but not flowing in defined channels. The defendants sunk a well on their land and pumped large quantities of water, which would otherwise have gone to the plaintiff's stream, thereby causing loss to the plaintiff. For this, the defendants were held not liable . \
consent does not serve as a good defence. Moreover, the act done by the defendant must be the same for which the consent is given. Thus, if you invite some person to your house, you cannot sue him for trespass when he enters your premises. But, if the visitor goes to a place for which no consent is given, he will be liable for trespass. For example, if a guest is requested to sit in the drawing-room and without any authority or justification, he enters the bedroom, he would be liable for trespass and he cannot take the defence of your consent to his visit to your house. Similarly, a postman has the implied consent of the resident of a building to go up to a particular place to deliver the dak. For his entry up to that particular point, he cannot be made liable. If the postman goes beyond that limit and enters the rooms of the house, he would be liable for the trespass.
Plaintiff the wrongdoer
There is a maxim “ Ex turpi causa non oritur actio ” which says that “from an immoral cause, no action arises”. If the basis of the action by the plaintiff is an unlawful contract then he will not succeed in his actions and he cannot recover damages. If a defendant asserts that the claimant himself is the wrongdoer and is not entitled to the damages, then it does not mean that the court will declare him free from the liability but he will not be liable under this head In the case of Bird v. Holbrook [18], the plaintiff was entitled to recover damages suffered by him due to the spring-guns set by him in his garden without any notice for the same. In Pitts v. Hunt [19], there was a rider who was 18 years of age. He encouraged his friend who was 16 years old to drive fast under drunken conditions. But their motorcycle met with an accident, the driver died on the spot. The pillion rider suffered serious injuries and filed a suit for claiming compensation from the relatives of the deceased person. This plea was rejected as he himself was the wrongdoer in this case
Act of God
Act of God serves as a good defence under the law of torts. It is also recognized as a valid defence in the rule of ‘ Strict Liability ’ in the case of Rylands v. Fletcher [28]. The defence of Act of God and Inevitable accident might look the same but they are different. Act of God is a kind of inevitable accident in which the natural forces play their role and causes damage. For example, heavy rainfall, storms, tides, etc. Essentials required for this defence are:
- Natural forces’ working should be there.
- There must be an extraordinary occurrence and not the one which could be anticipated and guarded against reasonably.
Working of natural forces
In Ramalinga Nadar v. Narayan Reddiar [29], the unruly mob robbed all the goods transported in the defendant’s lorry. It cannot be considered to be an Act of God and the defendant, as a common carrier, will be compensated for all the loss suffered by him. In Nichols v. Marsland [30], the defendant created an artificial lake on his land by collecting water from natural streams. Once there was an extraordinary rainfall, heaviest in human memory. The embankments of the lake got destroyed and washed away all the four bridges belonging to the plaintiff. The court held that the defendants were not liable as the same was due to the Act of God.
Occurrence must be extraordinary
Some extraordinary occurrence of natural forces is required to plead the defence under the law of torts.
In Kallu Lal v. Hemchand [31], the wall of a building collapsed due to normal rainfall of about 2.66 inches. The incident resulted in the death of the respondent’s children. The court held that the defence of Act of God cannot be pleaded by the appellants in this case as that much rainfall was normal and something extraordinary is required to plead this defence. The appellant was held liable.
Private defence
The law has given permission to protect one’s life and property and for that, it has allowed the use of reasonable force to protect himself and his property.
- The use of force is justified only for the purpose of self-defence.
- There should be an imminent threat to a person’s life or property. For example, A would not be justified in using force against B just because he believes that some day he will be attacked by B.
- The force used must be reasonable and to repel an imminent danger. For example, if A tried to commit a robbery in the house of B and B just draw his sword and chopped his head, then this act of A would not be justified and the defence of private defence cannot be pleaded.
- For the protection of property also, the law has only allowed taking such measures which are necessary to prevent the danger.
Necessity
If an act is done to prevent greater harm, even though the act was done intentionally, is not actionable and serves as a good defence. It should be distinguished with private defence and an inevitable accident. The following points should be considered:
- In necessity, the infliction of harm is upon an innocent whereas in case of private defence the plaintiff is himself a wrongdoer.
- In necessity, the harm is done intentionally whereas in case of an inevitable accident the harm is caused in spite of making all the efforts to avoid it. For example, performing an operation of an unconscious patient just to save his life is justified. In Leigh v. Gladstone [37], it was held that the forcible feeding of a person who was hunger-striking in a prison served as a good defence for the tort of battery. In Cope v. Sharpe [38], the defendant entered the plaintiff’s premises to stop the spread of fire in the adjoining land where the defendant’s master had the shooting rights. Since the defendant’s act was to prevent greater harm so he was held not liable for trespass. In the case of Carter v. Thomas [39], the defendant who entered the plaintiff’s land premises in good faith to extinguish the fire, at which the fire extinguishing workmen were already working, was held guilty of the offence of trespass. In Kirk v. Gregory [40], A’s sister-in-law hid some jewellery after the death of A from the room where he was lying dead, thinking that to be a more safe place. The jewellery got stolen from there and a case was filed against A’s
sister-in-law for trespass to the jewellery. She was held liable for trespass as the step she took was unreasonable.
