Law of Torts

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HomeBrud.gifLaw of Torts

In simple words, Tort is a Civil / Legal Wrong. Tort Law is one of the important branches of Civil Law.

Contents

Meaning of Tort

The word Tort is derived from a Latin word 'Tortus' which means 'twisted' or 'cooked act'. In English it means, 'wrong'. The Expression 'Tort' is of French Origin.

The term 'Tort' means a wrongful act committed by a person, causing injury or damage to another, thereby the injured institutes (files) an action in Civil Court for a remedy viz., unliquidated damages or injunction or restitution of property or other available relief. Unliquidated damages means the amount of damages to be fixed or determined by the Court.

  • The person who commits or is guilty of a tort is called a "tortfeasor". (Gordon v. Lee, 133 Me. 361, 178 A. 353, 355)
  • The person who suffered injury or damage by a tortfeasor is called injured or aggrieved.
  • Tort is a common law term and its equivalent in Civil Law is "Delict".
  • In general, the victim of a tortious act is the plaintiff in a tort case.
  • As a general rule, all persons have the capacity to sue and be sued in a tort.
  • Tort Law provides an avenue for an injured person of a remedy. It does not provide a guarantee of recovery.

Types of Wrongs

Wrong can be of two types - Public and Private. Tort is a Private Wrong, whereas Crime is a Public Wrong. Torts are tried in Civil Courts.

  • Wrong
    • Public wrong - These are acts that are tried in Criminal Courts and are punishable under the Penal Law (such as the Indian Penal Code, 1860 in India)
    • Private wrong - These are acts against an individual person or a person within a community and are tried in Civil Courts.

Origin

Main article: History of Torts

The 'Law of Torts' owes its origin to the Common Law of England. It is well developed in the UK, USA and other advanced Countries. In India, Law of Torts is non codified, like other branches of law eg: Indian Contract Act, 1872 and Indian Penal Code, 1860. It is still in the process of development.

A tort can take place either by commission of an act or by omission of an act.

Definition

Main article: Definition of Tort

According to Prof. 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.

Sir John Salmond defined 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.

Types of Torts

Broadly speaking, Torts are of three types:

  • Intentional Torts
    • Against the Person: Assault, Battery, Infliction of mental distress, False imprisonment
    • Against the Property
  • Negligence
  • Strict Liability

Characteristics

  1. Tort, is a private wrong, which infringes the legal right of an individual or specific group of individuals.
  2. The person, who commits tort is called "tort-feasor" or "Wrong doer"
  3. The place of trial is Civil Court.
  4. Tort litigation is compoundable i.e. the plaintiff can withdraw the suit filed by him.
  5. Tort is a specie of civil wrong.
  6. Tort is other than a breach of contract
  7. The remedy in tort is unliquidated damages or other equitable relief to the injured.

Essential elements to prove a Tort

  • Existence of legal duty from defendant to plaintiff
  • Breach of duty
  • Damage as proximate result.

Related Case

  • City of Mobile v. McClure, 221 Ala. 51, 127 So. 832, 835.

Types of Tort

Differences

Differences between Tort and a Crime

Tort Crime
Tort is tried in Civil Courts Crimes are tried in Criminal Courts
A person who commits Tort is a 'tortfeasor' A person who commits Crime is a 'Criminal' or 'Offender'
The remedy of tort is unliquidated damages or other equitable relief to the injured The remedy is to punish the offender
Tort litigation is compoundable Criminal cases are not compoundable except in case of exceptions as per Section 320 Cr.PC of IPC

Tort Law of various countries

Law of Torts in UK / English Tort Law

The English Tory System was based on a closed system of nominate torts and follows the Roman law. Examples for this include trespass, battery and conversion. Negligence is the most popular form of tort. For liability under negligence a duty of care must be established owed to a group of persons of which the victim is one, a nebulous concept into which many other categories are being pulled towards. But as Lord MacMillan said in the case, "the categories of negligence are never closed".

Law of Torts in France / French Tort Law

Unlike tort law of many counties, the Tort law of France (délit) is entirely codified, and Article 1382 of the Civil Code of France simply states that “[a]ny act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.”

Law of Torts in other countries

Related Cases / Recent Cases / Case Laws

  • Code Ga. 1882, § 2951 (Civ.Code 1910, § 4403)
  • Hayes v. Insurance Co., 125 Ill. 626, 18 N.E. 322, 1 L.R.A. 303
  • Railway Co. v. Hennegan, 33 Tex. Civ.App. 314, 76 S.W. 453
  • Churchill v. Howe, 186 Mich. 107, 152 N.W. 989, 991
  • Strachan Shipping Co. v. Hazlip-Hood Cotton Co., 35 Ga.App. 94, 132 S.E. 454, 459
  • Keiper v. Anderson, 138 Minn. 392, 165 N.W. 237, 239, I.4.R.A.1918C, 299. A
  • Mitchell v. Health Culture Co., 349 Mo. 475, 162 S.W.2d 233, 237: A violation of a right in rem which plaintiff has as against all persons with whom he comes in contact or the violation of a right which is created by law and not by any act of parties.
  • Henriques vs Dutch West Indian Company (1728) 2 Ld. Raym 1532; Newby vs Colts Patent Firearms Co., (1872) LR 7 QB 293; A Foreign Corporation (i.e. a Corporation established by the law of a foreign country) may sue and be sued for a tort, just like any other corporation
  • Raja Pramada Nath Roy vs Shebait Purna Chandra Roy, (1908) 7 CLJ 514: The liability of estate of an idol for wrongs committed by its shebait (person in charge of idol) is analogous to the liability of a corporation.

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