Tort as a Law

The term “law” in its general sense, be defined as a set of rights and duties which a particular country imposes on its citizens to guide their actions and the breach of which can result in penalties. Unlike criminal law, company law tort is also a kind of law which imposes certain legal rights and duties towards its citizens. It is a kind of civil wrong and therefore in case of its breach the wrongdoer would be held liable for the penalties in the form of damages (compensation).

The term ‘tort’ is a Latin term derived from the word ‘tortum’ which refers to ‘to twist’. Therefore, a tort can be defined as “an action which is not lawful, but on the other hand, twisted, crooked or unlawful“. There is no any specific scientific definition of the term, as it is a vast growing branch of law, continuously engage in covering vast areas. Different scholars have different views and have given a different definition, some definitions are:-

1. “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.”- by Salmond
2. “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.”- by Winfield
3. “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.”- by Fraser

History of Tort Law:

In the history of the legal world, there was no distinction between the criminal and civil laws. The legal system or the court system came in light after 1166 century, when the Norman Conquest of England, William the Conqueror’s great-grandson Henry II instituted a statute, according to which a jury of twelve men in each county would be appointed to decide whether an alleged crime had been committed, and then the type and extent of that defendant’s sentence. The punishment given to the defendants were harsh and strict. The only way to run out of that was to become a member of the clergy, whose cases were to be dealt in the Ecclesiastical courts, which were known to offer softer, more humane framework punishments.[1]

The concept of civil courts was the first set up by Archbishop Thomas Beckets. His court was first to come to be known as the court of chancery, later as courts of equity and thereafter as civil courts. These courts were meant to give judgments on the basis of emotional pains and financial loss, the judges were even allowed to put a restraining order to stop wrongdoer from causing further loss.

The clear distinction between criminal law and tort law can be traced in the famous case of Peoples vs. O.J.Simpson[2]where Simpson was charged for murdering his former wife and waiter Ron Goldman. The case was filed under the criminal suit and was decided by a criminal jury. Soon after in 1996, where both the families filed a civil suit against Simpson and thereafter the jury held Simpson for causing wrongful death and awarded plaintiff with thirty-three a half million dollar.

Therefore, the basic aim for establishing the concept of tort law was to prevent the society from private revenge by forming courts where the individual can sue another. It is a different concept from contract law or other civil suit laws as its main area of concern is to prevent the dignity of society in person.

How is it distinguished from others?

Many a times the concept of tort law seems similar to that of other laws like criminal law and other types. Therefore,it is necessary to distinguish it from others.

Tort and Crime Distinguished

Tort and crime can easily be distinguished on the basis of the seriousness of the crime, i.e. if the crime is of less serious nature and is a private act done against the private individual then it can be termed as a civil wrong and the wrongdoer has to pay compensation to the injured party. As the idea behind the compensation concept is to bring him back to the original position as if no harm has been suffered due to the wrongful act of other provided he himself has not committed ant wrong. Whereas if the crime is of more serious nature affecting the general public at large can be termed as criminal activity and the wrongdoer is punishable with serious punishments like imprisonment. As the main concern of criminal law is to prevent further happing of crimes in society and also to stop such offenders and other potential offenders from committing such crimes

As tort law is considered to be a private wrong, therefore, the injured party is himself liable to file suit against him and moreover, they are at total liberty to take back the suit filed or to agree to compromise. But in criminal law, as the wrong is against the public at large therefore the state is held liable for filing a suit against the defendant and therefore there is no chance of taking back case.

Illustration: If a person plays music in such sound and unbearable voice that it is disturbing his neighbors then they can file a suit in civil court for private nuisance but if the sound of music is in such a laudable manner that the people at large living nearby are suffering problem because of it then the suit can be filed against the offender for public nuisance in the criminal court.

Although there are facts where there is both civil and criminal liability arises, in that situation, the remedies given are not alternative but are concurrent. The person has to suffer imprisonment as a punishment for a criminal act along with that has to pay compensation as a punishment under tort.As in the case of Campbell vs. Paddington Corporation[3] where the offender has committed the offence of public nuisance as defined in sec 268, IPC. The plaintiff a passer-by, falls into the ditch and thereby gets injured, the offender is then held liable also for tort for private nuisance. Therefore, the offender not only was held liable for tort wrong for which he has to pay compensation but also for criminal wrong under public nuisance.

Tort and Breach of Contract distinguished

Breach of contract happens when the parties who voluntarily have agreed to come into agreement with each other and by their own will cause the breach of it can be termed as a breach of contract. The remedy under this is by compensation which is in liquidated form i.e. which has its value fixed. But it is not so in the case of tort, as a tort is committed when there is a breach of duty which is being imposed on an individual by law. Here the remedy is not fixed earlier it is being decided at the discretion of the court and the loss being suffered.

As in contract law, the duty is based upon the privity of contract and party owns duty towards the other contracting parties, whereas in tort law the duty of individual is being owned towards the world at large.

Illustration: If A enters into a contract with B, if there is any breach in its terms B can file suit against A and vice-versa, as A and B both own duties towards each other and no 3^rd party in respect to contract is allowed to have any say in between. But if while walking on the road if A harms pedestrian B he can’t have claimed that he owns duty towards any particular X, Y, Z.

As in the case of Donoghue vs. Stevenson[4]it shows that the manufacturer of drinks owns a duty of care to every possible consumer of his product. In this case, the A went to a restaurant with a women friend and bought one bottle of ginger-beer manufactured by the defendant. After half of the content was consumed the rest was poured into the glass, where it was observed the decomposed body of snail in it. The bottle being opaque it was not been able to see it earlier. The women bought action against the manufacturer for negligence and also claimed that due to consumption of contaminated drink she has suffered serious illness. The House of Lords held that the manufacturer owns duty towards women and also to every probable consumer of his product to take care that his product doesn’t contain any noxious matter injuries to health in it.

Although there might be cases where there are both breaches of contract and tort, in that case, the injured party can’t claim damages twice. He has to opt for either to sue under breach of contract or for tort.

Frequently Asked Questions

• What does tort mean?

The term tort in simple language can be defined as twisted which has its derivative roots from the term tortum, but when it comes in terms of law it refers to the wrongful act done by an individual infringing the rights of the other. It is a branch of law which refrain’s the individual from causing harm to other and if any harm is done then to compensate for it, as it is the duty imposed not by any agreement but by general laws. It is a civil wrong. To constitute a tort, it is necessary that

1. There must have been some act or omission on the part of the defendant to perform any duty imposed on him by law,
2. And, that act or omission must have resulted in some violation of legal right vested with plaintiff by law i.e. legal damage.

• What are tort defences?

When the suit is filed against the defendant and all the essential conditions for of tort are fulfilled then the defendant can have certain defences to save himself from the punishment. There are certain specific defences and certain general defences available for the defendant. Some of them are:
a. Volenti non fit injuria
Where the plaintiff himself voluntarily agrees to suffer any harm, he is not allowed to raise any question against it, and his consent gives a good defence for the defendant.
b. Necessity
If there is any act done by the defendant which causes harm to the plaintiff, but that act was done out of necessity to prevent the greater loss to be happening then the defendant won’t be held liable for the same.
c. Inevitable accident
When even after taking all precautions, if there is certain accident happens which is unexpected and could not have been foreseen or have been avoided, then it can be termed as inevitable accident for which defendant won’t be held liable.
d. Act of God
It is a kind of inevitable accident that happens even after taking all the precautions and that can’t be foreseen or avoided; the only difference is that they are the accident that happens naturally.
e. Private Defence
It is the permission given to us by law to use suitable force against the other just to protect ourselves from any wrong and which is of such a necessary nature that except for self-defence there is no other option.

• What are tort damages?

Damages are the compensation awarded to the plaintiff. It is usually awarded to bring back the plaintiff in the original position which he lost due to the act of the defendant. In tort law, the damages are categorised into two types 

1. Compensatory damages:These are the actual damages i.e. economic and non-economic damages which the plaintiff suffers and is to be paid by the defendant.
2. Punitive Damages:This type involves the punishment to the defendant for his wrong. This type is awarded very rarely.

• Why are tort laws important?

Tort laws are important for the society as firstly the main purpose of it bring back the victim in the same old as he was if the tort would not have committed which under criminal law the injured party can’t get. Furthermore, it has a strict check over negligence and mistaken acts of the individual which in its absence the individual would not be precautious as they would if they come under the preview tort law.

• Why was tort law created?

Tort law was needed to be created as earlier there was only one law that was prevailing that was a common law. Under which the punishments are given was harsh even for the small crimes and also there no scope for considering the humanity factor before giving judgements, therefore it was considered necessary to develop a separate law for fewer saviour crimes. With the passage of time and improvement in the system of law there a separate place is given for private wrongs and public wrongs.

• Why is tort a civil wrong?

Tort is often termed as civil wrong because in this the plaintiff files the civil suit against the defendant and also the main remedy in tort law is by the way of paying compensation to the sufferer or the injured party, whereas in criminal wrong the criminal suit is filed by the state and the general remedy is imprisonment and therefore tort law is a civil wrong.

• Can tort be a crime?

Many a times it happens that the wrong done is a breach of duty stated under the tort law which it imposes on its citizens but those wrongs are of such a serious nature that they can also be filed under criminal law. As tort law is a private wrong but the act done is in such a manner that it becomes problematic for a large number of people at large than in that situation it can become the crime.

Example: if someone is listening to music in such a loud voice that it only disturbs neighbours then it can be a private nuisance that is tort but if that music listener raises the sound of music that the whole locality is getting disturbed then it becomes a public nuisance then it is public nuisance and is a crime.

• Where is tort cases heard?

Mostly the tort cases are filed in state civil courts, depending on the amount of damages being asked for.

 Edited by – Sakshi Agarwal

Quality Check – Ankita Jha

Approved & Published by – Vedanta Yadav

 [References]

[1]Retrieved from <https://owlcation.com/social-sciences/Evolution-of-Tort-Law>

[2] Peoples vs. Orenthal James Simpson (1995).

[3] (1911)1K.B.869.

[4] (1932) A.C. 562:147 L.T.281:48T.L.R.494.