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Definition of Tort
The word Tort was derived from the Latin term Tortum.
- Clark and Lindsell: "Tort is a wrong independent of contract for which the appropriate remedy is a common law action."
- Fraser: A tort is an infringement of a legal right in rem of a private individual, giving a right of compensation of the suit of the injured party.
- Section 2(m) of Limitation Act, 1963: "Tort means a civil wrong which is not exclusively a breach of contract or breach of trust."
Salmond's Definition of Tort and its shortcomings
- Sir John Salmond: "Tort as a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation."
The definition given by the Salmond fails to underline the essential characteristics of tortions acts. According to this definition tort is a wrong but it does not explain what is wrong and what kinds of wrong explaining jural features of tort. Moreover the expression "civil wrong" itself requires explanation. The definition is more informative but this is also not perfect.
Winfield's Definition of Tort and its shortcomings
- Prof. P H Winfield: Tortious Liability arises from 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.
The shortcomings in the definition are:
- In framing this definition, Winfield is not seeking to indicate what conduct is and what is not sufficient to involve a person in tortious liability, to distinguish from certain other branches of law
- The pharse 'duty towards persons generally' is not adequate to include duties arising from special relationships like doctor and patient etc., and to exclude duties arising between guardian and ward or trustee and beneficiary etc. which fall outside the ambit of law of tort.
- It is not necessary and distinctive remedy for damages as the peculiar and distinctive remedy for a tort or breach of duty is fixed by the law and not by the contract, because such damages may be claimed for a breach of trust.
- The phrase 'liability arises from the breach of duty', may be true at an earlier stage of development of law of tort, but it is not applicable or appropriate to an important category of liability at the present day, for example, vicarious liability of a master for his servant's tort.
Three Elements of Torts
For an act to be considered a Tort, there will be three essential elements:
- Tort is a civil wrong,
- Such civil wrong is other than a mere breach of trust or contract
- The remedy for such civil wrong lies in an action for unliquidated damages.
- Rogers vs Rajendro Dutt (1860) 8 MIA 103: Judicial Committee of Privy Council: Tort is an act or omission which prejudicial affects, another and some legal right giving him a right to claim damages.
- Jarvis vs May Davies & Co, (1936) 1 KB 405: Where the breach of duty alleged arises out of a liability independently of the personal obligations undertaken by contract, it is a tort.