Tort is derived from the Latin word ‘tortum’ which means ‘to twist’ and it implied on the conduct which is notorious or twisted. Thus, tort in common law considers as a civil wrong. The nature of the law of torts is too concerning compensation for damage for civil wrong suffered by another’s acts or omissions.
Therefore, the primary goal of tort law is to provide relief to an injured party for harm caused by others and impose liability on the party responsible for harm, and also put-off others from committing harmful acts.
Usually, the party seeking redress through tort law will ask for damages in the form of monetary compensation and hence common remedies include injunction and restitution. Although tort law varies by state and many Courts utilize the restatement of Torts as an influential guide.
Tort defined by some jurist
- Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.
- Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.
- Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty arising out of personal relation, or undertaken by contract) which is related in one of the following ways to harm (including reference with an absolute right, whether there be measurable actual damage or not), suffered by a determinate person: –
a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or property), and treated as wrongful without regard to the actor’s intention or knowledge. This, as we have seen is an artificial extension of the general conceptions which are common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or omitting to act did not intend to cause, but might and should with due diligence have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound absolutely or within limits, to avoid or prevent.
Law of Torts in India
The term tort is the French equivalent of the English word “wrong” and the Roman law term “delict”. The word tort is derived from the Latin word “tortum” which means twisted or crooked or wrong. In India law of torts is a body of law which addresses and provides remedies for non-contractual acts of civil wrongdoings. Therefore, a person who is suffering from legal damages may be able to take help from tort law by receiving compensation for those injuries from that person who is legally responsible or liable. Torts are civil wrongs for which an aggrieved party can seek legal redressal; usually, the aggrieved party in a tort action is entitled to claim un-liquidated damages.
Is it Law of Torts or Law of Tort?
It is Law of Torts–This theory is mostly supported by Winfield and he says that all injuries done to another person are Torts unless justification recognized by the eye of law. Thus, this theory not only considers those torts that have acquired specifics name but it considers the wider principle that contains all unjustifiable harm as tortuous. Hence from this theory Court may time to time create new torts
This theory is supported by many eminent judges, both in ancient as well as modern time. HOLT, C.J., clearly supports Winfield’s theory by recognizing the principle of ubi jus ibi remedium.
In the case of Ashby v. White (1703) 2 Ld. Raym. 938, Court held that if any man will multiply injuries then action must be multiplied too; for every man who is injured ought to have recompense.
PRATT, C.J., BOWEN, L.J., LORD MACMILLAN
Winfield’s Theory and Indian Judiciary: Indian judiciary has also shown favour to Winfield’s theory. In the words of Justice BHAGWATI, C.J., 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 cannot 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 ours owns Jurisprudence. In the same case, the Supreme Court of India established the concept of ABSOLUTE LIABILITY in place of strict liability [case- M.C. Mehta v. Union of India, AIR 1987 SC 1086].
It is Law of Tort- On the other hand, Salmond preferred the second alternative and for him, there is no law of torts but for them, there is a law of tort. According to Salmond, the only liability arises when the wrong is covered by anyone or other nominate torts. There is no general principle of liability and if the plaintiff can place his wrong in any of the pigeon-holes, each containing a labelled tort, he will succeed. This theory is also known as ‘Pigeon-hole theory’ and if there is no pigeon-hole in which the plaintiff’s case could fit in, the defendant has committed no tort.
According to Salmond as in criminal law which consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries.
This theory was supported by Professor Dr Jenks. However, the view of Salmond theory does not imply that Courts are incapable of creating new tort. In his view Court can create new tort but they are similar to those which are already in existence. Heuston the editor of Salmond’s Torts is of view that Salmond’s critics have misunderstood him.
Professor Glanville Williams stated that they can be collected into pigeon-holes does not mean that those pigeon-holes may not be capacious, nor does it mean that they are incapable of being added to.
Professor Dr. Jenks supported the theory of Salmond and observed that the Court can create new torts but such torts cannot be created unless they are substantially similar to those which are already in existence.
But his views do not appear to be correct, in the case of In Rylands v. Flethcher (1868) LR 3 HL 330 a new tort i.e. strict liability was created which was not substantially similar to any existing tort.
Again in the case of Rookes v. Barnard (1964) AC 1027 a new tort i.e. intimidation was created.
Difference between Tort and Crime
|It is private Wrong||It is Public Wrong|
|Tort done by breach of Private Duties||By breach of Public Duties|
|The object of the action is compensation||The object of the action is to punish the wrongdoer|
|An individual has to approach a civil court for redressal||State initiates prosecution against the wrongdoer|
Difference between Tort and Contract
|Uncodified law||Codified law|
|Duty is fixed by the law||Duty is fixed by the parties|
|Duty is towards persons generally||Duty towards a specific person|
|Violation of rights in rem||Violation of right in personam|
|Question of privity is out of place here||Question of privity is closely connected|