LAW OF TORTS
Concept Of “TORT”
‘Tort’ essentially means a ‘wrong’. It is derived from the Latin word ‘tortum’,
which means ‘twisted’or ‘crooked’.
In law, tort is defined as a civil wrong or a wrongful act, of one, either intentional
or accidental, that results in injury or harm to another who in turn has recourse to
civil remedies for damages or a court order or injunction.
According to Sir John Salmond, an English legal scholar, 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 a breach of trust, or other merely equitable
obligation In the words of M.C. Setalvad, the first Attorney General of India, “law
of torts is an instrument for making people adhere to standards of reasonable
behaviour and respect the rights and interests of one another.
Damages under law of torts are essentially compensatory and seek to place the
defendant in the position that he would have been had the wrongful act not been
performed. The remedy is often in the nature of ‘unliquidated damages’.
Unliquidated damages can be defined as the sum of money that cannot be foreseen
or assessed by a fixed or predecided formula. Damages may be categorised as
unliquidated when the amount of damages is unidentifiable or subject to an
unforeseen event that makes the amount not calculable.
It must be mentioned that tort is a civil wrong as distinguished from criminal
wrong; both the substantive elements and the procedures are different in civil law
and criminal law. In a criminal case, the state initiates legal proceedings in a
criminal court on behalf of the victim and is punished if found guilty by the court.
A civil action, like the tort suit, is pursued in a civil court where the person
aggrieved or his representatives or survivors prosecute the wrong-doer usually for
compensation in the form of monetary damages and also at times for other relief or
injunction. Generally, tort cases aim at compensating the victim while criminal
lawsuits often result in punishments, for example, prison sentences. Injunctions are
court orders that, for example, may prohibit the wrong-doer from harming the
victim or prevent the former from trespassing the latter’s property. Occasionally,
courts may also grant punitive damages, which are costs or damages in excess of
the compensation.
LAW OF TORTS
TORTS BREACH OF CONTRACT
A Tort is a civil wrong in which the Breach of contract is a breach of a
remedy is action for damages. promise the primary remedy of which is
performance of the contract.
Damages are always unliquidated. In breach of contract the damages are
liquidated.
In tort motive may be taken into In breach of contract the motive is
consideration irrelevant.
In tort duty is bound towards the In breach of contract the duty is bound
persons generally towards a specific person or persons.
In tort the damages may be In breach of contract, nature of damages
compensatory or even exemplary is compensatory
damages may also be
awarded.
A tort can be intentional or accidental. It includes wrongful acts such as battery and
assault (physical or mental injury to the claimant), nuisance (an act which is
harmful or offensive to the public or an individual), defamation (where claimant’s
reputation is injured), property damage, trespass (to claimant’s land or property),
negligence (careless behaviour), and others; some of these are discussed below.
The three fundamental elements of a tort are:
1. Wrongful act;
2. Damage;
3. Remedy.
These tortious wrongs may also have aspects which overlap with other fields of
law like criminal law and contract law, examples of which may be found in the
chapters on criminal law and contract law.
LAW OF TORTS
Sources of Law of Torts
Tort is mostly a Common Law subject. The law of torts did not develop from a
statute or an act passed by the Parliament, but from centuries of judicial decisions –
based on case decisions in English courts as well as in courts of other countries
following the Common law system such as that of India, Canada, Australia or the
United States of America.
In India as well as in other jurisdictions both criminal law and contract law are
based on statutes, for example, the Indian Penal Code and the Indian Contract Act
respectively. However, there is no single statute or a group of statutes that
comprehensively deal with tort law as a separate area of law. It is easy to explain
this difference. A lawyer focusing on contract matters would ordinarily look at the
Contract Act or the Sale of Goods Act to find out the rules which might apply to a
given fact situation.
On the other hand, a tort lawyer cannot merely look at the statute to find out the
law that could apply to a given fact situation. A tort lawyer has to pore through the
case law including the applicable precedents in other jurisdictions to examine the
existence of a tortious wrong. To summarise, the law of torts includes both statutes
and case laws and cannot be traced to a single source.
However, in many jurisdictions, including in India, there is a move to enact
statutes concerning tortious wrongs which were hitherto governed only by case
laws. In India, for instance, automobile accidents as well as harm caused to
consumers of goods and services are covered by the Motor Vehicle Act of 1988 (as
amended) and the Consumer Protection Act of 1986(as amended) respectively
