1/12/2018 Law of Torts under Legal Reasoning for CLAT - CLATapult

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Law of Torts: Understanding its relevance in

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eptember 21, 2015 by admin — Leave a Comment

HAPTER 1: THE LAW OF TORTS

1. AN INTRODUCTION

ince all good books have a nice beginning so should this one. So here we go :

line from T.S Eliot in Prufrock:

o lead you to an overwhelming question….

h, do not ask, “ What is it?”

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his describes the nature of torts.  What is it that makes it so different from the other types of laws? 
erhaps the fact that it lls the gap in the law. Ok, so before we get into the legalese and the jargon, let me
ive you a good advice here. Make sure that  you have the basics right. Only then move on to the advanced
oncepts.

here is no exact de nition that can tell you about what a tort means. But  then many jurists have de ned
ort in their own way. There are a number of de nitions but let us go by the most accepted one.  The word
ort is derived from the latin word ‘Tortum’ which means ‘twisted conduct’. This term tort is the equivalent of
he English word ‘wrong’.

o, basically a tort is a conduct that is not proper and is ‘entangled, crooked and twisted’.

is not easy to comprehend when a tort is committed.  If you commit a crime, it is easily identi able but the
ame is not always true for a tort. Tort is a conduct for which a remedy lies in civil law.

is a wrong committed against a private individual (remember that in criminal law wrongs are committed
gainst the State). Put simply tort law is like a policeman who comes to your rescue and makes the
wrongdoer pay (in monetary terms) for the wrong to you.

ORTS IN EVERYDAY LIFE

ort law can be de ned as a civil wrong arising when one individual breaches a legal duty which he owes to
nother individual. A legal duty arises when one is bound to act in a certain way because it is provided by a
tatute enacted by the Parliament and/or judge made law.

laims in tort law are awarded unliquidated damages and are separate from claims in contract law.
nliquidated damages are monetary amounts meant as compensation which are not predetermined by
arties but are decided in court by the judge or jury.

ow let me explain with the help of some examples. 

you go to your neighbor’s house you are expected to ring his doorbell and take his permission before you
nter his house . You cannot go straight into his kitchen and start doing whatever you like. You have to take
is permission before you help yourself with the cookies on his table.

you do not do this, then what happens? You have behaved in a manner which is unacceptable and you
ave breached your duty towards your neighbor. A tort has been committed.

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ou may be doubtful about why you owe a duty to your neighbor in the rst place and if so what is that duty.

n order to understand let us consider another example.

When a person comes to your house you expect him to follow certain basic rules like he should ring the bell,
ake your permission before he enters the house and opens your refrigerator to eat the vanilla ice-cream
hat you have kept inside.

he does not do so, you feel annoyed. This means that he has violated your rights. Do you take that person
o the court just because he ate the ice-cream without asking you?

ou may or may not but regardless of your decision to sue, a tort has been committed because he has
reached the duty he owes to you. The legal duty of your neighbor is to seek your permission before he sets
oot on your land. Here you do have a right to take him to court.

HOW JURISTS DEFINE TORTS

ifferent judges, jurists and academicians have given different de nitions of ‘tort’.

ccording to Win eld, a  prominent jurist,

Every wrongful act is actionable as a tort unless a justi cation for that can be shown.”

olowicz  gives the following de nition:

Tortuous liability arises from the breach of a duty primarily xed by law; this duty is  towards persons
enerally and its breach is redressible by an action for unliquidated damages”

almond and Hueston –  “A tort is a civil wrong for which the remedy is a common action for unliquidated
amages, and which is not exclusively the breach of a contract or the breach of a trust or other mere
quitable obligation”

ollock an English jurist has de ned torts as follows:

The law of torts is a collective name for the rules governing many species of liability which although the
ubject matter is wide and varied, has certain broad features in common, enforced by the kind of legal
rocess that are subject to similar exceptions”.

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raser , author and an eminent jurist de nes torts –

t is an infringement of the rights in rem, against every other person or private individual giving a right of
ompensation at the suit of the injured party.”

ou have gone through a number of legal de nitions. Now it is time for you to note what is common to all
hese de nitions.

1. A tort is a private wrong.

2. Remedy for a tort lies in civil law and not in criminal law.
3. It involves the violation of a legal duty.
4. It leads to liability on the part of the wrongdoer. Liability in this context is when a person is legally
responsible for his act.
5. The compensation awarded in ‘unliquidated’ in nature.

ow, ‘unliquidated damages’ have nothing to do with liquids. These are damages which are not pre-
alculated and predetermined but are determined in the court after the tort has taken place.

ote that failure to perform a ‘legal duty’ alone constitutes a tort. In this case moral and religious duties do
ot come within the ambit of duties for which remedy lies in tort law.

uppose you fail to pray on a particular day. It is your religious duty which you have failed to perform, but it
s not a tort because it is not a legally imposed duty.

uppose you see a person needs help but you do not help him, it does not amount to a tort. This is because
elping someone is a moral duty and it is up to you to decide whether you want to help or not.

owever in the same case if a person is drowning and you jump into the water and pull him out but do not
ake him to the hospital and he dies, then it is a tort since you breached your legal duty of care towards him.

orts can be as small as crossing over to another person’s  land without permission but it may also be as
ig as the Bhopal Gas Tragedy.

onsider when people gossip about others and say bad things behind their back such that it lowers the
erson’s image in the eyes of the people around him. This amounts to the tort of defamation about which
ou will learn later.

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few other examples of torts are given one by one.

unny and Bunny got into a ght over who would eat the last chocolate. During this ght Sunny gives Bunny
tight slap across his face. Sunny has committed the tort of battery.

eyonce Singh loves listening to loud music without caring about her neighbor Honey Nigam who is an
ged person. She has committed the tort of nuisance.

ou will learn about the various kinds of torts in the later chapters.

ARE ALL WRONGS TORTS?

o, only civil wrongs are torts. A civil wrong is a wrong committed against a private individual.

ake the example where Beyonce Singh plays loud music. The society at large is not affected by this. It is
ot a wrong against the state.

his is to be seen in contrast with criminal law where the society at large is assumed to be affected and the
riminal is a threat to all the members of the society. A contractual breach is a civil wrong but not a tort
ecause damages for it are liquidated.

or example, Baddy throws water on the oor without the intention to injure Maddy. When Maddy enters the
oom later, he is unaware of the spilled water and he slips and falls down. Baddy has committed a tort of
egligence here.

Baddy pushes Maddy off the bridge with the intention to kill him he has committed the crime of attempt
o murder.

Baddy promises to give Maddy his villa in exchange of 2 lakhs and later he takes the money but does not
ransfer the ownership of the house, he has breached a contract.

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HE LAW OF TORT OR THE LAW OF TORTS? TO BE OR NOT TO BE...

one of the two terms is wrong and both are used nowadays although it is still a topic of debate in tort law.
hose who call it the law of tort do so on the basis of the Latin maxim-‘ubi  jus  remedium’. To translate that
ne for you, it means that ‘for every wrong there is a right.’  Thus the law governing  every civil wrong is
alled a tort. Those in support of calling it the law of tort, basically see it as one law governing a group of
imilar wrongs.

hose who call it the law of torts do so as they are the upholders of Pigeonhole Theory. Say if I enter into
our garden without your permission, I have committed a wrong and you pigeonhole it to trespass. This
means that certain situations are identi ed with xed categories of torts. So they feel as if there are
ifferent types of wrongs that combine to form the tort law and therefore, they call it the law of torts. I
would like to call it the law of torts for convenience in our study.

OSITION OF THE LAW OF TORTS IN INDIA

n India, tort law as it exists today, is derived from Common Law principles and English law speci cally.
udicial decisions of the court of England, codi ed and uncodi ed taken together formed the tort law.

he 19th and 20th century were the periods when most  of the tort law developed. Since tort law is there to
ll in the gaps in law and is meant to develop with change in society and situations, it  is largely uncodi ed.
his is because it is di cult to identify each and every situation. Hence there are no statutes on tort law.

We in India therefore relied on the laws framed by England to deal with torts. Over the last century, the
ndian law combined with the English law to form our tort law principles.

ort law is uncodi ed (unwritten) in our country because it is dependent on the speci cs of a situation and
here is no one size that ts all. But as the saying goes, exceptions are always there. Some principles of tort
aw are codi ed such as the Consumer Protection Act,1986 and the Motor Vehicles Act,1988.

ort cases are not very common in India because most people are unaware of their rights to sue under tort
aw . Also, the standard of compensation is not very high and the court proceedings take a lot of time.

is a tedious process. But slowly, people are becoming aware of the presence of this law and their rights
nder it. For example, recently MS Dhoni led a suit against the Zee News moving the Madras High Court
eeking damages of Rs 100 crore on the claim of the tort of defamation.

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ort law cases can be serious, funny and sometimes strange as you will see in due course.

LOGIN
IFFERENCES BETWEEN TORTS, CRIMES AND CONTRACTS

TORTS:

1. It is largely uncodi ed with a few exceptions such as the Motor Vehicles Act,1988 and the Consumer
Protection Act,1986.
2. Tort law is private in nature. It is a violation of a private person’s right. State is not involved and the
parties can therefore the party has the right to chose whether or not to approach the court.
3. It involves a wrongful act. A legal injury must be caused.
4. Malice and intention have nothing to do with torts except in some speci c torts such as malicious
prosecution.
5. The compensation is in the form of unliquidated damages.

RIMES:

1. It is almost completely codi ed in the form of the Indian Penal Code, 1860 and the Criminal Procedure
Code.
2. It is a public wrong since it is a wrong against the society at large. State is a party to the case and
even if the victims may want to settle the case among themselves or withdraw the case, it is not
possible because the wrong is against the society at large.
3. Both the mental element (mens rea) and the act(actus reus) must be necessarily present for an act to
be a crime.
4. Malice, ill-will, bad intention and guilty mind are one of the important requisites of a crime.
5. The criminal is punished with either an imprisonment for a certain number of years or he may be
asked to pay a ne. This ne goes to the State Treasury and not to the victims. The main object in
crimes is punishment and hence the element of compensation is not there.

ONTRACTS:

1. It is almost entirely codi ed although some unwritten principles are still

2. A contract is entered into voluntarily between two parties so a breach is a private wrong and the
parties to the contract can choose to compromise if they wish to. Usually third parties are not
interested but there are cases where a person can approach because he is a bene ciary to the
contract.

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3. Malice is of no consequence except in contracts where a person induces another person to enter into
a contract thereby causing loss to a party with whom the person had already contracted.
4. Consideration, multiplicity of parties, promise ,etc. are some important requirements of a contract.
5. The damages are liquidated or precalculated. The parties can decide the amount of compensation
beforehand.

APPLYING LAWS SIMULTANEOUSLY

When an act quali es as a wrong in more than one area of law, then it depends upon the victim to choose
what she wants.

the act quali es both as a crime as well as a tort, then the person can bring a case in both areas of law.
he can le a case in tort law for compensation and under criminal law for punishment.

ut when an act is a wrong both under tort law as well as under contracts, then the person needs to decide
whether he will le a case under torts or under contracts. He cannot bring a case under both. This is
ecause the aim of both is compensation. So, the person who has performed the wrong should not be
made to pay twice as this will be unfair because he has committed one wrong and not two.

or example,  A beats up B leading to B having a number of fractures and heavy bleeding.  B can le a case
f battery under tort law and a case of grievous hurt under criminal law. Now, consider a case in which A
reaches a contract with B. In this case he has to decide in which forum he wants to pursue the case. He
annot sue under both tort law and contract law.

ere is a bit of advice. Please go by the principle. Say, if it talks of defamation, then see if the principle is of
rimes or torts and apply accordingly. Please do not mix the concepts of one in the other.

AT A GLANCE

1. Torts– A civil wrong which is private in nature and occurs when a person breaches his duty.
Unliquidated damages are awarded as compensation.
2. For an act to qualify as a tort, the following are required:

Civil wrong
A breach of legal duty
Private in nature
Unliquidated damages as compensation

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3. Unliquidated Damages

amages that are not precalculated or predetermined but are calculated after the damage has taken place.

4. Liquidated Damages

amages as in contracts where the damages are precalculated and xed and in case of a breach, they are
aid to the aggrieved party.

5. A tort is an infringement of a private or a civil right and is a wrong against an individual.

6. The injured party is called the plaintiff. He is the person against whom the wrong is committed.  He
can bring a suit against the tortfeasor for damages.
7. A tortfeasor is the person who commits the tort.
8. The act committed by the tortfeasor or the tort committed is called the ‘tortious act’.
9. The main objective of tort law is compensation or damages and not punishment. Tort law aims at
restoring the injured party to the original level. Apart from this, sometimes the court may grant
exemplary damages in certain cases, to make others deter from committing the same tort again.
10. Tort is a civil wrong but it is important to remember that all civil wrongs are not torts. For example,
breach of contract quali es as a civil wrong but it is different from a tort in many senses. Thus, a civil
injury independent of contract for which the suitable remedy is an action for ‘unliquidated damages’.

iled Under: Legal Aptitude

agged With: law of torts, Legal Reasoning

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