Law Of Torts, Definitions, Objectives And Elements of tort
What Is A Tort?
The term ‘Tort’ is French for a wrong act. A tort is an Act or an Omission that gives rise to a legal injury or harm to an individual, entity, individual’s reputation, or the property belonging to an individual and gives rise to a Civil wrong. The person committing any such act is held liable under the Law of Torts.
The term ‘Legal Injury’ means violation of any right vested upon a person by the rule of the law.
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Law Of Torts
Law of Torts is a framework of laws that capacitates a person or persons to demand compensation for the consequences of the legal wrong/s that has/have been committed against them.
Definitions of Law of Torts:
- “Tort means a civil wrong which is not exclusively a ‘Breach of Contract’ or Breach of Trust’.” – 2(m), the Limitation Act, 1963. [1]
The Limitation Act of 1963 gives an eliminatory definition of the Law of Torts. It first puts the Law of Torts under the head of a Civil wrong. Under Civil wrongs, it distinguishes Tort from Breach of Contract and Breach of Trust, to conceptualize Tort as an individual field that comes under the head of Civil wrongs but is neither Breach of Contract nor Breach of Trust.
- “Tort is a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not exclusively a Breach of Contract or Trust or other merely equitable obligation.” – [2]
Sir John Salmond’s definition of the Law of Torts can be simplified to an extended version of the definition of Law of Torts given in the Limitation Act of 1963. He defines Tort as a separate body of Civil Law that is not a Breach of Contract or Trust. He also provides that the damages under Tort are unliquidated i.e., not predetermined as they are in the cases of Contract.
- “Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.” – [3]
Winfield simply defines Tort or Tortious Liability as the inability of an individual to abide by the law or his failure to follow the duty towards other individuals fixed by the law. Any such act has to be compensated for by an unliquidated (not fixed) amount to be paid to the grieved person.
- “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.” –
- “Tort is an act or an omission (not merely the breach of a duty arising out of personal relations, or undertaken by a contract) which is related to harm suffered by a determinate person, giving rise to a civil remedy which is not an action of contract”
- Pollock
Pollock too distinguishes Tortious wrongs from Breach of Contract and Breach of Trust and keeps them under Civil cases, ensuring a remedy to the grieved.
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Objectives Of Law of Torts[4]
- Compensation: Self-evidently, Compensation is one of the most fundamental ideas behind Tort Law. The whole Law of Torts focuses on compensating the victim or the grieved party through various available remedies.
- Safeguarding Interests: Another primary objective that the Law of Torts serves is safeguarding or protecting an individual’s interest in his integrity or his property.
- Deterrence: Deterrence theory about law says that the threat or the fear imposed by law will demotivate and discourage people from committing certain acts which are tagged as unlawful. This eventually prevents the further commission of unlawful acts. Although the Law of Torts doesn’t penalize the guilty, the unliquidated nature of the damages or the compensation which s/he might have to pay acts as a deterrence.
- Vindication: The Law of Torts provides enough room for dear opportunities to a person who deems himself/herself as innocent to prove the same in front of the court. This gives room for the charges of Libel, Slander, and malicious prosecution.
- Scattering Losses: Law of Torts also aims at being an instrument to distribute the burden of the losses suffered by the plaintiff. The loss incurred by the plaintiff is usually divided between the defendants and the insurance companies (if any, in the facts of the respective case).
- Moral Objective: The Law of Torts also serves the very integral principle of society and one of the founding theories of Law i.e., punishment for misconduct. Complete justice is believed to be delivered in a righteous mode when the wrongdoer gets punished for his unlawful act or is mandated to undo the harm of such acts by any means.
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Essential Elements Of A Tort[5]
Three essential elements need to be fulfilled to constitute a Tort, they are:
- Existence of a Duty of Care
Every individual is bound to follow certain duty imposed upon it by the law of the land to practice certain tutelage and adequate rationale over his acts which might turn out to be harmful to any other individual.
Such duty of care needs to be proved in the court to induct the charges of Tort.
- Commission or Omission of an Act
To charge a person for Tort, it must be proved that s/he has either committed an act which is contrary and disobliging to the provisions of the law of the land or has failed to do an act which was his/her duty as per the law of the land to do.
Illustration A: ‘X’ publishes a defamatory statement against ‘Y’. The same would lead to the Tortious wrong of Defamation on X’s part as the law forbids the publication of defamatory statements against a person.
Illustration B: ‘X’ fails to set up proper fencing surrounding his garden which has poisonous trees to warn people to stay away from it. A child dies as a consequence of eating fruit from one of the poisonous trees from X’s garden.
Here, ‘X’ failed to perform his reasonable duty of care towards the people which amounts to omission. It’ll lead to a Tort.
- Legal Injury
To prove that the wrongful act or omission of the defendant is a Tort, the plaintiff must show that such act or omission caused an injury to him. An injury here means violation of a legal right vested in the plaintiff and recognized by the law of the land. The legal maxims ‘Injuria sine Damno’ and ‘Damnum sine Injuria’ encapsulate the damage and injury part.
The first maxim, Injuria sine Damno means Injury or infringement of a legal right without any actual Damage i.e. substantial loss suffered by the plaintiff. Mere violation of a legal right or proof of a legal injury is enough to constitute a Tort. The reader can deduce the maxim further from the case of Ashby v. White.[6]
The second maxim, Damnum sine Injuria means damage to the plaintiff in absence of a legal injury or violation of any legal right. A case for Tort cannot be made up in absence of a legal injury. The Gloucester Grammar School case[7] can be referred to understand the maxim to its bottom.
- Legal Remedy
As the last condition to constitute a Tort, the unlawful act or omission of the defendant must fall under a category of unlawful acts which have a civil action for damages as their remedy. The law of torts bases itself on the maxim, ‘Ubi jus ibi remedium’ which means
‘where there’s a right, there’s a remedy. The remedy required to constitute a Tort can be action for damages, injunctions, restitution actions, or equitable remedies (specific performance).
The court applies certain tests such as the test of foreseeability, the test of directness, etc. before determining the remedies to be awarded in a case. The nature of the damages is unliquidated.
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–Written by Mrutyunjay Saramandal
(Writer, The Legal State)
– Edited by Mahek Raval
(Editor, The Legal State)
[1] Section 2 in The Limitation Act, 1963 (indiankanoon.org)
[2] Various Definitions of The Term Tort And Comment on Any One Better Known To You (legalserviceindia.com)
[3] Tortuous Negligence Liability (lawteacher.net)
[4] Objectives – Torts in law (weebly.com)
[5] Essential Elements of the Law of Torts | Legal Jumble (medium.com)
[6] 92 ER 126
[7] (1410) YB 11 Hen IV, fo. pl. 201, 23, f. 47, pi. 19