LAW OF TORT

The term 'tort' is derived from the latin word 'tortem' which means twisted. In legal context, it is defined as any twisted/unlawful act. In simple word, tort is a civil wrong.

 According to Salmond, 

"A tort is a civil wrong for which the remedy in common law is action for unliquidated damages, and which is not exclusively the damage of the contract or the trust or the breach of other merely equitable obligations."

Tort is distinct from crime in the following ways:-

• Tort is a private wrong, which infringes the legal right of an individual or specific group of individuals; whereas crime is a public wrong, which violates the rights and duty of public as a whole.
• The remedy for tort lies in an action for damages by the aggrieved party in a Civil Court, while the remedy for crime lies in prosecution in a Criminal Court by the State although the prosecution may be at the instance of the injured party.
• The remedy for tort lies in liquidated damages, restitution or injunction; whereas the remedy for crime is punishment by way of imprisonment or fine or both given or imposed by the court.
• Tort litigation is compoundable i.e. the plaintiff can withdraw the suit filed by him but criminal cases are not compoundable.
• The person who commits tort is called ‘tort-feasor’ or ‘wrong doer’; whereas the person who commits crime is called ‘offender’ or ‘criminal’.    

Distinction between tort and contract:-

•         A tort is an infringement of ‘right in rem’ (available against the whole world), but a breach of contract is an infringement of ‘right in personam’ (available against a definite person or persons). 
•     Rights and duties in tort are created by law, while the rights and duties in contract are created out of an agreement between the parties. 
•     The remedy in tort is civil action for unliquidated damages, restitution of property, injunction, etc.; whereas the remedy is civil action for specific performance of the contract or liquidated damages in the alternative. 
•     In case of tort, there need not exist privity, while in the case of contract there must exist privity between the parties.

   

There are three essential factors for the tortious liability:-

• Wrongful act/omission,

• Legal damage,

• Remedy.    

1.     Wrongful act: 

    

    There must be a wrongful act/omission on the part of the defendant, in order to make a person liable in tort. It is to be proved that the person has done some act which he was not supposed to do/has omitted to do an act which he was supposed to do. An act will be considered to be wrongful when it violates some legal rights of another. 

    

    Eg. if a person enters on the land of another without his permission or justification, or, if a person fails to cover a trench may make a person liable, if somebody falls into it and gets injured. {Glasgow Corp. vs. Taylor} {Delhi Municipal Corp. vs. Subhagwanti & Others}. 

    

    Thus tortious liability arises when a wrongful act is the cause of violation of a legal right in rem or a breach of duty primarily fixed by the law.      

2.     Legal damage: 

    

    In order to be successful in tort the plaintiff has to prove legal damages. Unless there is a violation of legal rights no action lies under the law of tort. If there is a legal damage, the defendant is liable to pay compensation to the plaintiff even though the plaintiff has not suffered any loss. This principle is expressed in the maxim, 'Injuria sine damno', which means injury without damage. 

    Major case laws include:- Ashby vs. White and Bhim Singh vs. State of J&K. 

    Next is, 'Damnun sine Injuria', which means damage without legal injuries. Major case laws related to this maxim are:- The Gloucestar Grammar School case and Mogul Steamship Co. vs. McGregor Gow & Co. The plaintiff has to prove that his legal right is infringed due to the act of defendant. The damage may be due to the intention or negligence on the part of the defendant. Damage may be due to the breach of strict duty of the defendant.

3.     Legal Remedy: 

    This can be explained by the legal maxim, 'Ubi jus ibi Remedium', which means that where there is a right, there is a remedy. The wrongful act complained of must be such that it gives right to legal remedy in the form of civil action for damages. In tort, the principle remedy is unascertained, i.e., unliquidated damages. However, there are other remedies in tort viz. injunction, abatement, restitution of property, etc.

General Defences or Justification of Tort:-

When the plaintiff brings action against the defendant for a particular tort, while he proves the essential of tort the defendant would be liable. The defendant may avoid his liability by taking the plea of general defences. The following are the general defences which can be availed by the defendant.

• Volenti non fit injuria:-

 It means that, harm suffered voluntarily by the consent of the plaintiff is not actionable. When a person consents to the infliction of some harm upon himself, he has no remedy in tort. In case, the plaintiff himself voluntarily agrees to suffer some harm, he is not allowed to complain for that and his consent serves as a good defence against him. In short, it means, what is consented is not an injury. The consent is of two types: express and implied consent.

Express consent- According to Salmond, no man can enforce a right which he has voluntarily waived. Eg.- If a man enters my house on my invitation then I cannot take an action for trespass against him because he enters my house with my expressed consent.

Implied consent- Sometimes the consent may be implied and can be inferred from the conduct of the person. In such cases the plaintiff does not give consent for the injury caused by the act. Eg.- In a game of boxing, one boxer is injured then he cannot take action against the other. This rule also applies to the spectators of the game. But if excessive force is applied in the game or unlawful methods are used and someone gets injured then the wrongdoer cant take the plea of volenti non fit injuria. 

Major case laws include Hall vs. Brooklands Auto Racing Club, Padmavati vs. Dugganaika and Wooldrige vs. Summer.

Conditions for the application of this defence are:- 

(a) Consent must be free and not obtained by fraud, or under compulsion or under some mistaken impression; 

(b) Act must be lawful; 

(c) Maxim is volenti and not Scienti non fit injuria, which means that mere knowledge does not imply consent.{Dann vs. Hamilton}

Limitation:-

Rescue cases are an exception to the application of the doctrine of this defence. If the plaintiff voluntarily takes a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, the maxim will not apply and he will have the right to bring an action for damages against the defendant.

 Major case law include:- Haynes vs. Harwood.

• Act of God/Vis Major:-

Act of God is a form of inevitable accident resulting from the natural causes such as heavy rainfall, flood, earthquakes, storms, etc. It includes all those acts which a man cannot avoid even by taking reasonable care. There is complete operation of natural forces. These are unconnected with any human agency. It is a good defence in tort. In order to establish this defence, the following conditions are to be satisfied:-

a)   There must be working of natural forces without any human intervention.

b)  The working of natural force should have resulted in the injury to the plaintiff.

c)   The occurrence must be extra ordinary.

d)  The occurrence must be one which could not be anticipated by the defendant.

e)   The occurrence must be one which could not be avoided by reasonable care on the part of the defendant

Eg.- falling of trees, lightening, storms, floods, etc. 

These events cannot be avoided with any amount of care or caution taken by the human beings.

Major case law include:- Kallulal vs. Hemchand.

• Inevitable accidents:- 

An accident means unexpected injury. If a person does a legal act with reasonable care and another person gets injured, which occurs in the circumstances which cannot be avoided, no action can be brought against him. Inevitable accidents are a good defence if the defendant can show that he neither intended to injure the plaintiff nor could he avoid the injury by taking reasonable care. The defendant can avoid the liability by pleading his defence if the following conditions are satisfied:-

a)   The defendant should have done the act.

b)  The act of the defendant should have resulted in the injury to the plaintiff.

c)   The defendant should not have expected the injury.

d)  The defendant could not have foreseen such an injury.

e)   The defendant could not avoid such injury in spite of reasonable care on his part.

f)    The defendant should not have the intention to cause such injury to the plaintiff.

Major case laws include: - Stanley vs. Powell, Brown vs. Kendal, Nitro- Glycerine case.  

• Private Defence:-

Every person has the right to protect his property or person and for this purpose he can use necessary force. This is called the right of private defence. The right of private defence vested in an individual extends to the protection of one’s spouse and family and even servant or master. There are two conditions for the use of force for self defence:- 

(a) It will be justified only when there is imminent threat to the property and person of an individual; 

(b) The use of force must be in the proportion in which it is necessary in the circumstances.

Section 96 to 106 of IPC deals with private defence. When a person does an act in right of private defence, he may involuntarily cause injury to third person. In such cases, the intermediate involuntarily agents who acted under the right of private defence will not be liable.

Major case laws include: - Ramanuja Mudali vs. M. Gangan, Bird vs. Holbrook.

• Act of Necessity:- 

This is based on the maxim 'salus populi supreme lex', which means the welfare of the people is the paramount law. Implied consent is presumed on the part of every person of the society during the time of necessity. An act causing damage, if done under necessity to prevent a greater evil, is not actionable even though the harm was caused intentionally.

Eg.- throwing cargoes into the sea to lighten the ship in order to save the ship as well as person on board the ship, to throw water on a house in case of fire, or putting it down in order to stop the fire from spreading further, etc.  

But removing the goods from one place to another under the impression that they are unsaved, that cannot be justified on the ground of necessity, if they are stolen from the place where they have been placed, the person so removing them could be liable for trespass of goods.

Major case law include:- Kirk vs. Gregory.

• Mistake:-

Mistake can be divided into two- Mistake of Fact and Mistake of Law. Mistake is generally no defence under the Law of Torts. Ignorance of law is not an excuse but ignorance of fact is an excuse. In tort, one can take the defence of such mistakes. In tort, requiring malice, i.e. an evil motive as one of the elements for wrong like malicious prosecution & deceit, the liability does not arise when the defendants acts under an honest and mistaken belief.

Major case law include:- Consolidated Co. Vs. Curtis.

• Statutory authority:- 

If the damage is caused to a person by an act done under the authority of the legislature, he cannot bring an action for it. In such cases, if there is a provision for compensation in the relevant statute then the injured person will get the compensation otherwise not.

• Judicial acts:- 

The judicial officers, judges, munsiffs and the magistrates are exempted from any liability for work done by them in the discharge of their judicial duties, even if they are doing it with malice and not honestly. This exemption is essential to enable the judges to discharge their judicial functions independently and without any fear and favour. 

• Parental authority:-

Parents and guardians have the authority to chastise their children. They can detain the child. A father can stop his child and lock him in a room for setting him right. A teacher has also this power over his students.

Major case laws includes:- Lakshmikant Sripad vs. Gera, Rex vs. New Port.