Tort is the French equivalent of the English word ‘wrong’. It is derived from the Latin term tortum and implies conduct which is twisted or tortious.
It means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable. A civil injury for which an action for damages will not lie is not a tort, e.g., public nuisance, for which no action for damages will lie by a member of the public.
The person committing a tort or wrong is called a tort-feasor or wrong-doer and his misdoing is a tortuous act. The principal aim of the law of torts is compensation of victims or their dependents.
Tort & Contract
There is a well-marked distinction between a tort and a contract. A contract is founded upon consent: a tort is inflicted against or without consent.
A tort is a violation of a right in rem, i.e., of a right vested in some determinate person, either personally or as a member of the community, and available against the world at large: whereas a breach of contract is an infringement of a right in personam, i.e., of a right available only against some determinate person or body, and in which the community at large has no concern.
The distinction between the two lies in the nature of the duty that is violated.
In the case of a tort, the duty is one imposed by the law and is owed to the community at large. In the case of a contract, the duty is fixed by the will and consent of the parties, and it is owed to a definite person or persons.
Thus, if A assaults B, or damages B’s property without lawful cause or excuse, it is a tort.
Here the duty violated is a duty imposed by the law and that is the duty not to do unlawful harm to the person or property of another. But if A agrees to sell goods to B for a price, and either party fails to perform the contract, the case is one of a breach of contract. The duty that is violated is a specific duty owed by either party to the other alone, as distinguished from a general duty owed to the community at large.
In a breach of contract, damages are only the compensation. In an action for tort to the property, they are generally the same. But when the injury is to the person, character or feelings and the facts disclose improper motive or conduct such as a motive, malice, violence, cruelty or the like which aggravate the plaintiff’s injury, he may be rewarded aggravated damages.
Tort and Crime
A tort is also widely different from a crime.
First, a tort is an infringement of the private or civil rights belonging to individuals considered as individuals; whereas crime is a breach of public rights and duties which affect the whole community considered as a community.
Secondly, in tort, the wrong-doer has to compensate the injured party: whereas, in crime, he is punished by the state in the interests of society.
Thirdly, in tort, the action is brought by the injured party: in crime, the proceedings are conducted in the name of the state and the guilty person is punished by the state.
Constituents of Tort
The law of torts is fashioned as ‘an instrument for making people adhere to standards of reasonable behavior and respect the rights and interests of one another’.
To constitute a tort or a civil injury (1) there must be a wrongful act committed by a person; (2) the wrongful act must give rise to legal damage or actual damage, and (3) 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.
An act which, prima facie, appears to be innocent may become tortious, if it invades the legal right of another person.
To every right there corresponds an obligation or duty. If the right is legal, so is the obligation; if the right is contingent, imaginary or moral, so is the obligation.
A right in its main aspect consists in doing something, or receiving and accepting something. So an obligation consists in performing some act or in refraining from performing an act.
The duty with which the law of torts is concerned is the duty to abstain from willful injury, to respect the property of others and to use due diligence to avoid causing harm to others.
Liability for a tort arises, therefore, when the wrongful act complained of amounts either to an infringement of a legal private right or a breach of violation of a legal duty.
‘Damage’ means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act of another. The sum of money awarded by court to compensate ‘damage’ is called ‘damages’.
The real significance of legal damage is illustrated by two maxims, namely, injuria sine damno and damnum sine injuria.
By damnum is meant damage in the substantial sense of money, loss of comfort, service, health or the like. By injuria is meant a tortious act; it need not be willful and malicious; for though it be accidental, if it be tortious, an action will lie. Any unauthorized interference, however trivial, with some absolute right conferred by law on a person, is an injury, e.g. the right of excluding others from one’s house or garden.
In case of injuria sine damno, i.e. the infringement of an absolute private right without any actual loss or damage, the person whose right is infringed has a cause of action. Every person has an absolute right to his property and an infringement of this right is actionable per se. Trespass to person, that is assault, battery and false imprisonment and trespass to property whether it be land or goods and libel are instances of torts that are actionable per se and the court is bound to award to the plaintiff at least nominal damages if no actual damages is proved.
Act and Omission
In order to constitute a tort there must be a wrongful act.
The word ‘act’ in this context is used in a wide sense to include both positive and negative acts, i.e. acts and omissions. Wrongful acts which make a person liable in tort are positive acts and sometimes omissions. Acts and omissions must be distinguished from natural occurrences beyond human control such as lightening and earthquake for which a person cannot be held liable.
Failure to do something in doing an act is not an omission but a bad way of performing the act.
For example, if a lawyer gives an opinion without taking notice of the change in law brought about by a reported decision of the Supreme Court, he would not be guilty of an omission but of performing the act of giving his opinion in a bad way.
“An omission is the failure to do an act as a whole.”
Voluntary/Involuntary Acts and Mental Elements
An involuntary act does not give rise to any liability. For example, an involuntary act of trespass is not a tort. Involuntary acts are those where the actor lacks the power to control his actions and involuntary omissions are those where the actor’s lack of power to control his actions renders him unable to do the act required.
Even a voluntary act, except in those cases where the liability is strict (our CLAT coaching in Kolkata experts will deal with that in our subsequent article), is not enough to fasten liability and it has to be accompanied with requisite mental element, i.e. malice, intention, negligence or motive to make it an actionable tort assuming that other necessary ingredients of the tort are present.
Malice in the popular sense means spite or ill-will. But in law malice has two distinct meanings: (1) Intentional doing of a wrongful act and (2) Improper motive.
- In its legal sense, malice means a wrongful act, done intentionally, without just cause or excuse. If I give a stranger a blow likely to produce death, I do it out of malice, because I do it intentionally and without just cause or excuse.
- The word ‘wrongful’ imports the infringement of some right, i.e. some interest which the law recognizes and protects.
- But where a man has the right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense. A wrongful act, done knowingly and with a view to its injurious consequences, may be called malicious: But such malice derives essential character from the circumstances that the act is intentionally done and constitutes a violation of the law.
“It is common knowledge that the thought of man shall not be tried, for the devil himself knoweth not the thought of the man”
Intention is an internal fact, something which passes in the mind and direct evidence of which is not available. An act is intentional as to its consequences if the person concerned has the knowledge that they would result and also the desire that they should result.
|Intention relates to the immediate objective of the act||Motive refers to the ulterior objective|
|Intention need not be related to some personal benefit or satisfaction of the actor||Motive refers to some personal benefit or satisfaction which the actor desires|
|When A poisons B, the immediate objective is to kill B and so this is A’s intention||The ulterior objective of A may be to secure B’s estate by inheritance or under a will executed by him and this objective will be A’s motive|
- An act which does not amount to a legal injury cannot be actionable because it is done with a bad motive. It is the act, not the motive for the act, which must be regarded.
- The exceptional cases where motive is relevant as an ingredient are torts of malicious prosecution, malicious abuse of process and malicious falsehood. Motive is also relevant in the torts of defamation, nuisance and conspiracy.
If a man throws a stone at a woman, his trespass to her person is intentional; that is he threw it because she had jilted him would be immaterial in determining his liability in trespass – that would be his motive.
If he did not throw the stone for the purpose of hitting her but ought to have foreseen that it was likely that the stone would hit her, his act would be unintentional but nevertheless negligent.
If the stone hit her solely because it rebounded off a tree at which he had thrown it his conduct would be voluntary; and the hit would be accidental. But, if, while he was holding the stone in his hand, a third party seized his arm and by twisting it compelled him to release his hold on it, whereupon it fell on the woman, his conduct would be involuntary and could never give rise to liability on his part.
Two comments here are necessary. In the case where the stone thrown at a tree rebounds and hits the woman it is assumed that the risk that the stone on rebound may hit the woman could not be reasonably foreseen which negatives negligence, and therefore, it is an accident though the act of throwing the stone is voluntary.
In this case also there will be no liability.
In the last case, where a third person twists the arm of the person holding the stone and the stone gets released, the act of the person holding the stone is involuntary and so he would not be liable for trespass; but, the person twisting the arm and compelling the release of the stone so that it may hit the woman will be guilty of trespass.