LAW OF TORTS
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CONSUMER PROTECTION ACT, 2019
Definition, Essential Ingredients and Historical Development of Law of Torts
Q. 1 (a). Define tort and explain its essential ingredients.
Or
“The law of Torts exists for the purpose of preventing men from hurting one another, whether in respect of their property, their person their reputation or anything else which is theirs.” Discuss the scope of the law of torts with the help of illustrations.
Ans. Meaning of Tort. – The term ‘tort’ is the French equivalent of the English word ‘wrong’ and Roman term ‘delicti’. This word has been derived from the Latin term ‘Tortum’ which means ‘twisted’ or a ‘crooked’ act. Thus, tort may be said to mean a conduct which is not straight or lawful, but is twisted, crooked or unlawful, causing an injury to a person.
Definition of Tort.- Law of torts belongs to one of those branches of law which elude definition. Addision has said that, “It is not possible to give a scientific definition of tort”. According to Street “No definition of tort at once logical and precise can be given”. The reason for giving no satisfactory definition of tort may be summed up as follows:-
(1) The law of tort is still growing.
(2) It is based on common law and not statute law.
(3) It is implicated historically with procedure.
However, the definition of tort has been attempted by several writers. Some of the important definitions are as follows:-
Underhill. “A tort is an act or omission which is unauthorised by law, and independently of contract: (i) infringes either :- (a) some absolute right of another; or (b) some qualified right of another causing damage or (c) some public right resulting in some substantial and particular damage to some person, beyond that which is suffered by the public generally; and
(ii) gives rise to an action for damages at the suit of the inquired party.”
Salmond.” – A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation.”
Section 2 (m) of the Indian Limitation Act, 1963 defines the term ‘tort’ as “a civil wrong which is not exclusively a breach of contract or breach of trust.”
Fraser- “A tort is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.”
Winfield. – “Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its is redressible by an action for unliquidated damages”
Essential Elements of Definiton of Tort
There are following essential elements of the definition of tort’ as given by Winfield:-
1. Duty primarily fixed by the law The words primarily fixed by the law’ mean that the law imposes a duty on everybody’s shoulder to take care so that there may not occur any breach of that duty which is pre-supposed by law. A tort arises by the operation of law and not by the consent of any particular person.
2. Duty must be towards persons generally-Another feature of the duty is generality. Duty is general, on every person and liability may attach to any person who makes a breach of duty.
3. There must be Breach of duty-Breach of duty means non- observance of the aforesaid duty. Liability may arise only when there is a breach of duty.
4. The breach of duty must be redressible by an action for unliquidated damages-The unliquidated damages simply mean an amount of damages as the Court deems fit in its opinion. In tort, the amount of damages depends upon the discretion of the Court. It is not fixed. It is in the discretion of the Court to decide as to what amount of damages should be awarded to the plaintiff.
Winfield’s definition provides a good working rule The greatest merit of this definition is the incorporation of concept of duty. The concept of duty implies, on the one hand, the relationship of plaintiff and defendaint. and on the other, the standard of behaviour which the defendant is required to fulfil. If. A. for instance, drives a car and injures B. B will not be able to recover compensation, from A unless he proves that A owed a duty to be careful towards him and that he has committed a breach of it.
In spite of all its merits, the definition of Winfield is not completely satisfactory.
Speaking generally, there are three distinct factors which are essential to constitute tortious liability :
(1) There must be an act or omission which amounts to a civil wrong.
(2) The act or omission should not be breach of contract, breach of trust, etc
(3) The remedy for the wrongful act or omission should be an action for unliquidated damages.
Q. 1 (b). Discuss origin and development of law of torts in England.
Ans. Origin and development of Law of Torts in England. – The law of ‘Torts’ has been recognised in the recent past as a distinct and separate branch of law. The chief source of Law of Torts is the Common law which signifies that it is based on decided cases. The watertight compartments in which ‘Tort’, ‘Contract ‘Criminal law’ are at present distributed were wholly unknown in the past. The writs that remedied the injuries which are called ‘torts’ were at first the writs of trespass and latter writs of trespass on the case and writs on the case. The writs of trespass lay for injuries to goods, or to the person. But it was limited to injuries which were direct and immediate such as that occasioned by throwing a log on the road, and it did not extend to indirect or consequential injuries such as those sustained by one who stumbled over the log. The former type of the writ of trespass was common about the year 1250 and the latter type of trespass became remediable as early as 1367 by writs of trespass upon the case. These actions upon the case seem to have been distinct from actions of trespass upon the case so the mode of developing the law of tort was flexible and was not rigid.
When a new kind of injury occurred, then the person wronged by it could apply to the Chancery for a writ of trespass upon the case or for a writ upon the case if there was some analogy between the injury and that already covered by an existing writ with the Chancery. It would issue new writ. Armed with this, the plaintiff would bring his action into Court. It was dependent upon the discretion of the Judges to hold or not to hold that the writ expressed a good cause of action. If they held, there was a new assertion to the Law of Tort. So it was quite unnecessary for the Judges or the writers of legal literature to define the limits of the law of tort. It may also be noted that the ‘actions’ upon the case, included a good many other wrong besides those which are called Torts’. The legislation of 19th century made it possible to give an account of the substantive law of tort and the anonymous law of actions on the case for torts and wrong (1720) written by Addison was published in 1860.
Dr. Winfield was of the view that there was greater scope for the development of law of torts if it remains uncodified. [Winfield- Law of Torts, 17th Edn 2006, P. 5.]. However, certain specific area of torts such as contributory negligence, indemnity among joint tort-feasors etc. have directly been codified on the recommendation made by the law reforms committees appointed by Law Chancellors from time to time.
Foundation of Tortious liability
Q. 1 (c). Is there a “Law of tort” or only a “Law of torts”? Discuss the foundation of tortious liability.
Ans. Foundation of tortious liability-Two competing theories. A great controversy centres around the foundation of tortious liability. There arises a question. “Is there a law of tort or only a law of torts?” Two competing theories have been put forward to resolve the controversy.
1. All injuries done to another person are torts unless there is some justification recognised by law. Sir Fredrick Pollock and Winfield are the votaries of this theory.
2. There is a definite number of torts outside which liability in tort does not exist. The chief supporters of this theory were Sir Salmon and Dr. Jenks.
First Theory (General Theory).- Winfield is the chief supporter of this theory. He says, “all injuries done to another person are Torts, unless there is some justification recognised by law. According to the theory, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit, slander or whether it has no special title at all, and I shall be liable if I cannot prove lawful justification. On this view, the law of torts consists not merely of all those torts which have acquired specific names but also includes the wider principle that all unjustifiable harm is tortious. This enables the courts to create new torts.
The first theory was certainly supported by the dicta of some eminent judges; both ancient and modern for example Lord Mansfield, Lord Comden, Bowen, L. J. Holmes J. and Sir Fredick Pollock.
It is, moreover, reinforced by the fact that the courts have repeatedly extended the domain of tort by creating new torts. The tort of malicious prosecution did not appear as an independent tort of the type until 1789 in Pasley v. Freeman. Several other torts emerged in the nineteenth century. Negligence was also recognised as an independent tort in between 1820 and 1830. The rule of strict liability for the escape of noxious things from one’s land was laid down in 1868 in Rylands v. Fletcher. Professor Winfield therefore, concludes: “At any rate it is clear from these and other instances that the law of tort is steadily expanding and that the idea of its being crippled, and confined in a set of pigeon-holes is untenable.”
Indian Judiciary has also shown a favour to this theory. In M.C. Mehia v. Union of India, AIR 1987 SC 1086, Justice P. N. Bhagwati have remarked – “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 can not allow our judicial thinking to be constricted by reference to the law as it prevails in England. We are certainly prepared to receive light from whatever source it comes but we have to build our own Jurisprudence.” In this case the Court established the concept of “absolute liability” in place of “strict liability”. Similarly, the Court put a new meaning of “State Liability” in the case of Bhim Singh v. State of Jammu and Kashmir, AIR 1987 SC 494.
Second theory (Specific theory or Pigeon-holes Theory). – The chief supporters of the second theory were Sir John Salmond and Dr. Jenks. Salmond was of the view “Just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in one case nor in the other is there any general principle of liability. Whether I am prosecuted for an alleged offence or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability and not for me to defend myself by proving that it is within some specific and established rule of justification or excuse.” Salmond supported the second theory by the citation of several cases in which the plaintiff suffered manifest injury and yet was unable to recover any damages in an action in tort, where the maxim damnum sine injuria was applied.
Dr. Jenks has followed the second theory. A weak spot in the second theory is that it appears to regard the list of torts which have specific names as a closed one. It restricts the creation of new torts by judicial decisions. Professor Winfield has analysed that theory in these words “The law of torts consists of a neat set of pigeon-holes each containing a labelled tort”. If the defendant’s wrong will not fit in any of these pigeon-holes, he has committed no tort”. Now Dr. Jenks regarded this as a wrong inference. He admitted that new torts can be and have been created; but he contended that this is perfectly consistent with the second theory because new torts cannot come to torts which they have already recognised. In his view, these new torts do not owe their origin to any general principle that all unjustifiable harms are tortious.
To the second theory the following objections may be made-
Firstly the cases of damnum sine injuria quoted by Sir John Salmond do not really support his theory. Neither all unjustifiable harm may be tortious nor we can go into the law Court against the harmful act of our neighbour with the confident expectation of being accorded a remedy.
Secondly, while there is some force in Dr. Jenk’s criticism it seems to be scarcely consistent with facts. There is no substantial similarity between the “deceit” of the thirteenth century and the ‘deceit’ which became a tort in 1789 or between the old liability for cattle trespass and the enormous extension which is received in the rule of Rylands v. Fletcher (Strict Liability).
Thirdly, the Common Law has not proved powerless to attach new liabilities and create new duties where experience has proved that it is desirable-per Lord Macmillan in Donoghue v. Stevenson, (Negligence).
If we concentrate attention on the law of torts at this moment entirely excluding the development of the law, past and future, then it corresponds to the second theory. If we take the wider view that the law of torts has grown for centuries and is still growing, then the first theory seems to be the back of it.
Conclusion. – In the words of Glanville Williams: “To say that the law can be collected into pigeon-holes does not mean that those pigeon holes may not be capacious, nor does it mean that they being added to.” are incapable o of
Dr. W.T.S. Stallybrass, concludes that although we have not ye discovered any general principle of liability, the Courts where they are not fettered by any precedent, to-day have a basis towards holding that where one man intentionally or carelessly caused damage to another, he shall recompense him. In consequence as the law develops, we are moving in the direction of a general principle of tortious liability.
Tort and Breach of contract; Tort and Crime, Tort and Breach of Trust
Q. 1 (d). Distinguish between
1. Tort and Breach of contract
2. Tort and Crime
3. Tort and Breach of Trust
Ans. 1. Distinction between tort and breach of contract. There are the following differences between Tort and breach of contract:
(i) Nature of right which is violated.- A tort is the violation of a right in rem, that is, a right available against the world at large and vested generally in persons, either personally or as a member of a community: whereas a breach of contract is an infringement of a right in personam, i.e. a right available only against some determinate person or body, and in which the community at large has no concern.
(ii) Duty. – In a contract the duty is based on the privity of contract and each party owes duty only to other contracting party. That is why we find the rule that stranger to a contract cannot sue. But in case of tort, the duty which is violated is duty towards the people generally and not Towards any specific person.
(iii) Motive. – Though motive in case of a tort is generally not relevant, but it may be taken into consideration in certain categories of torts, e.g., defamation, conspiracy, deceit, malicious prosecution and nuisance, but in a breach of contract motive of the breach is not wholly immaterial. In a breach of contract motive is taken into consideration while determining the liability of the person who has committed the breach.
(iv) Remedies. – In breach of contract the main remedy is specific performance of the contract and awarding damages is only an alternative or additional remedy, but in Tort the main remedy is damages.
(v) Damages. – Though damages are a remedy common to both, either as a main or subsidiary remedy, yet in breach of contract the amount of damages is already settled between the parties, i.e., they are liquidated damages. But in a tort damages are always unliquidated or unascertained.
(vi) Other distinctions:
(a) In case of a tort the principle of vicarious liability is applicable and master may be held liable for the wrongful acts of his servant in certain circumstances. It has no application in breach of contract.
(b) Some torts are regarded as crimes, e.g., defamation, conspiracy, deceit, malicious prosecution etc., but a breach of contract can never be a crime, it shall always be civil wrong.
Though, torts and breach of contract differ in their jural sources, they may co-exist in the same case. According to Salmond, the same wrong may be both a tort and a breach of contract because a person voluntarily binds himself by a contract to perform some duty which already lies upon him independently of any contract. Persons such as carriers, solicitors or surgeons, who undertake to discharge certain duties and voluntarily enter into contracts for the due performance thereof, will be liable for neglect or unskilfulness either in an action for a breach of contract or in tort. The breach of such contract is also a tort inasmuch as liability would equally have existed in such a case had there been no contract at all.
The boundary line between tort and breach of contract is at times obscured. According to Winfield, though liability in tort and in contract is quite distinct, the same facts may nevertheless create alternate liability in tort or in contract.
Inspite of a lot of overlap between tort and breach of contract, it is wrong to say that there are cases of “torts founded on contract”. According to Pollock, the expression “tort founded on contract ” is misleading and inaccurate.
In Dr. Sharad Vaid v. Pentro, AIR 1992 Bombay 478, it has been held that where a patient comes to a doctor, it cannot be said that the patient wants to make a contract with the doctor. He simply needs medical service. If the doctor is negligent at that time he is responsible for a tort. In the absence of some express contract between doctor and patient the doctor can not be held responsible for making breach of contract. His liability will be tortious.
2. Distinction between tort and crime
A tort is widely different from a crime. A tort differs from a crime in the following respects:
(i) As regards the consequences of the act or omission;
(ii) As regards procedure;
(iii) As regards redress or remedy;
(iv) As regards their history.
(v) As regards motive of the defendant.
(i) As regards the consequences of the act or omission-Tort is an infringement of the private or civil right belonging to individuals ‘considered as individuals’, whereas crime is a breach of public rights and duties which affects the whole community considered as community.
(ii) As regards procedure-In torts the civil suit is instituted only by the person wronged and by none else, whereas in a crime since it is wrong to the public at large, proceedings can be instituted, with a few exceptions only, by any member of the public or in some cases (cognizable offences) the police takes cognizance by its own. In case of criminal proceedings, the State is deemed to be a necessary party and it is taken to be a proper party to institute the proceedings.
(iii) As regards redress or remedy-In a tort the remedy is to claim damages for the injury in a civil Court and, therefore, they are only reparatory proceedings meant to compensate the injured party, but in crimes the proceedings are deterrent, meant to prevent its repetition by punishing the wrongdoer, so that he may not do it again. The underlying principle of redress is, therefore, different in both. In crime it is the punishment to the offender to deter him from again committing it; in tort it is reparation or compensation to the person injured and nothing more. In both cases compensation is awarded but there is a difference in their nature. In criminal procedure the compensation is ancillary to the primary purpose of punishing the offender but in a tort action to compensate is the main purpose.
(iv) As regards their history. Both tort and crime differ in their historical origin. Law of crimes is later in origin than the law of torts. This point has been made clear by Sir Henry Maine in his ‘Ancient Law’ where he has observed that “the penal law of primitive communities was not the law of crimes but the law of wrongs or torts”.
(v) As regards motive of the defendant. In tort barring bearing few exceptions the motive of the defendant is generally not relevant, whereas in case of a crime, mens rea, Le motive of the accused is an essential ingredient of the offence In torts of defamation, conspiracy, deceit. malicious prosecution and nuisance motive is relevant
The same act may be tort as well as a crime. The same act may be a tort, when looked upon from the standpoint of an individual, and also a crime when looked upon from the standpoint of the society in general, assault, libel, theft and malicious injury to property, etc are wrongs of this kind. Assault, being a violation of the personal safety of an individual, is a tort, but being a menace to the society in general, it is a crime also.
Salmond is of the opinion that the civil and criminal remedies, are not alternative but concurrent, each being independent of the other. The wrong-doer may be punished criminally and also compelled in a civil action to make compensation or restitution to the injured person. In India there are numerous decisions to the effect.
In Keshab v. Maniruddin, (1908) 13 CWN 50, it has been held that the injured person can directly bring a suit for damages for an action which also amounts to a crime, without in the first instance instituting criminal proceedings.
The most important distinction between Tort and Crime are to be found in the nature of remedy given, and the nature of procedure to enforce the remedy. If the remedy given is the compensation, damages or a penalty imposed by a civil action, the wrong so redressed is civil wrong. if the remedy given is punishment of the accused, which is enforced by the prosecution at the suit of the Crown, the wrong so redressed is crime or criminal in nature. (A.G. v. Bradlaugh, 14 QBD 667).
3. Distinction between tort and breach of trust
A tort may be distinguished from breach of trust on the following grounds:
1. In its origin the law of tort is, a part of common law, while the law of trust owes its origin to the Court of chancery.
2. In tort, the remedy is an action for unliquidated damages whereas in case of breach of trust, the remedy is compensation for the actual loss caused to trust property.
3. The amount of damages being ascertainable before the beneficiary brings the action, the damages, in the case of a breach of trust, are liquidated. But damages in a tort are unliquidated.
General Conditions of Liability in torts
Q. 2 (a) What are the general conditions of liability in tort? Discuss.
Ans. General conditions of liability in torts. The main purpose of the law of torts is to prevent unjustifiable injury to a person. This purpose has been expressed in the maxim ‘alterum non laedere’ which means ‘hurt no body by word or deed’. Therefore, an action of tort is usually a claim for pecuniary compensation in respect of damages suffered as a result of the invasion of a legally protected interest. As in Jai Laxmi Salt Works (P.) Ltd. v. State of Gujarat, (1994) 4 SCC 1, the Apex Court has observed that the entire law of torts is founded and structured on morality that no one has a right to injure or harm another intentionally or even innocently.
For the establishment of tortious liability following conditions must be present:-
(a) there must be a wrongful act committed by a person;
(b) the wrongful act must result in legal damage to another; and
(c) 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.
(a) Wrongful act committed by a person. For the establishment of tortious liability the first condition is that the act complained of should be wrongful, that is, the act must prejudicially affect a person in some legal right. The wrongful act includes illegal omission also.
Legal Right’ is a legally protected interest. It may be defined “as a capacity residing in one person of controlling with assent and assistance of the State the action of others.”
Liability for a tort arises when the wrongful act complained of amounts either to an infringement of a private legal right or a breach or violation of a legal duty which a person is bound to observe to others.
Where the public right is infringed without any authority of law an individual can not bring an action for it unless it is shown that some special or substantial damage is caused to such individual.
(b) Legal damages. The wrongful act complained of must result in legal damage to another Every damage is not actionable in law of tort. The damages must be a damage in the eyes of law, i.e. a legal damage. The sine qua non of a legal damage is a wrongful act, i.e., the infringement of a legal right followed up either by a presumption of legal damage (if the right infringed is an absolute right) or proof of a actual damages (if the right is a qualified right). Legal damage is neither identical with actual damage nor it is necessarily pecuniary. Every invasion on legal right gives rise to legal damages. A person may not suffer pecuniary loss, yet, if it is shown that there was a violation of some legal right, the law would award damages. The real significance of the principle of legal damages are usually expressed by two maxims (a) Injuria sine damno, and (b) Damnum sine injuria These two maxims establish the principle that actual damage is not the essential ingredient in a tort but it is the legal injury that gives rise to a cause of action. Injuria sine damno is always actionable, but damnum sine injuria is not.
(c) Legal remedy. A tort is a civil wrong for which the remedy is an action for unliquidated damages. An action of tort is usually a claim for pecuniary compensation in respect of damage suffered as the result of the invasion of a legally protected interest. There may be other remedies also such as specific restitution and injunction, but an action for unliquidated damages is the essential mark and the characteristic remedy for a tort.
The law of tort owes much to the maxim, ubi jus ibi remedium, which means that there is no wrong without a remedy. In Ashby v White, (1703) 2 Ld. Ramn 938. Lord Holt remarked “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy, for want of a right and want of a remedy are reciprocal.”