- PCS-J -LAW
- Constitutional Law Notes
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- LAW OF TORT
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LAW OF TORT
LAW OF TORT
SCOPE OF THE LAW OF TORTS
The law of tort is a branch of civil law. The word "tort" is derived from the Latin word tortum which means twisted or crooked or wrong. Hence a tort is conduct which is twisted or crooked and not straight. As a technical term of English law, however, tort has acquired a special meaning as a species of civil injury or wrong.
Salmond has defined a tort as, "A civil wrong for which the remedy is a 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".
Tort and crime
Being a civil injury, a tort differs from a crime in all respects in which a civil remedy differs from a criminal one. The contrast between civil and criminal laws is seen clearly in the nature of the sanctions underlying each system. The sanctions of one system, as indicated before (criminal law), are punitive or at least disciplinary, those of the other (civil law) are restorative or compensatory. A crime may be defined as a wrong which involves punishment such as death, penal servitude, imprisonment, fine, etc. When once liability to it has been pronounced, no option is left to the offender as to whether he shall endure it or not. He can get rid of it in general only by suffering. In a civil case, on the other hand, if a person is adjudged to pay a debt, or is cast in damages or is put under an injunction, he can always compromise or get rid of his liability with the assent of the injured party. Tort can be distinguished from crime in that the sanction for crime is punishment while the sanction for tort is an action for damages.
Tort and contract
The best definition of tortious liability is that of Professor P.H. Winfield: "Tortious liability arises from the breach of a duty primarily fixed by law, such duty is towards persons generally and its breach is repressible by an action for unliquidated damages." This definition brings out the distinction between a tort and a contract. A contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, content and consequences of which are determined and defined by the agreement of the parties; the law contenting itself with giving legal force and authority to the agreement.
Tort and contract are distinguished from one another in that the duties in the former are primarily fixed bylaw, while in the latter they are fixed by the parties themselves. Agreement is the basis of all contractual obligations.
In certain cases the same incident may give rise to liability both in contract and tort, for example, when a passenger whilst travelling with a ticket is injured owing to the railway company's negligence, the company is guilty of a wrong which is both a breach of contract and tort.
Again, the contractual duty may be owed to one person and the duty independently of contract to another. The surgeon who is called in b a father to operate upon his daughter owes a contractual duty to the father to take care. If he fails in that duty he is also liable for a tort against the daughter.
There is the well-established doctrine of privity of contract under which no one, except the parties to a contract, can sue for a breach of it. Formerly it was thought that this principle of the law of contract also prevented any action being brought under tortious liability. This erroneous view was correct by the House of Lords in the famous case of Donoghue v. Stevenson. In that case a manufacturer of ginger-beer had sold to a retailer, ginger-beer in a bottle of dark glass. The bottle, unknown to anyone, contained the decomposed remains of a snail. X purchased the bottle from the retailer and treated the plaintiff, a lady friend, to its contents. Owing to the darkness of the glass nothing of the snail was discernible until X was replenishing the plaintiff's glass. In consequence party of what she had drunk and partly of what she saw, she became very ill. She sued the manufacturer for negligence. There was, of course, no contractual duty on the part of the manufacturer towards her but a majority of the House of Lords held that he owed her a duty to take care that the bottle did not contain noxious matter and that the existence of liability in tort. Thus contractual liability is completely independent of the existence of liability in tort. The same facts may give rise to both.
Another distinction between contracts and torts is seen in the nature of damages claimed under each. In contracts the plaintiff will be claiming liquidated damages whereas in torts he will be claiming unliquidated damages. When a person has filed a suit for the recovery of a predetermined and fixed sum of money he is said to have claimed liquidated damages. On the other hand when he has filed a suit for the realisation of such amount as the court in its discretion may award he will be deemed to have claimed unliquidated damages.
In cases of statutory duties towards employees courts are inclined to give play to tort principles even though the relationship of master and servant is a creature of contract, for example, the liability to compensate an employee who is injured not in the course of employment but while being conveyed to his home.
Tort and quasi-contractual liability
Liability under tort may also be distinguished from liability under quasi-contract. The latter is based on the principle that if any person has received any unjust benefit, he must return it to the rightful owner.
Quasi contracts are concerned with the restitution of benefits and not with the compensation for losses. The true distinction between quasi-contractual liability and tortious liability is that in the former the duty is towards a person; it cannot be towards person generally, which is the basic principle in all torts.
Tort and bailment
If A gives a car on hire to B, the latter is the bailee of the car. He must use the car in such a way as not to cause any damage to it and must return it to A in good condition at the end of the period of bailment. Otherwise he will be liable to me in the civil action that may be brought by me as the bailor of the car. But even apart from the action under bailment, he will also be liable to me for negligence if he causes substantial damage to the car. Bailment, like contract, originates in the agreement of the parties but tortious liability may also coexist along with the liability under bailment.
Tort and trust
Trust is a branch of the law of the property. Under it a person called trustee holds property in his name for the use and benefit of another person called the beneficiary. If a trustee misappropriates property which he holds upon trust for a beneficiary the beneficiary can claim compensation. But that compensation amount will usually be the value of the property concerned. It can be ascertained beforehand and as such the damage claimed will be a liquidated sum. Thus tort is distinguishable form trust mainly on the ground that while unliquidated damages are claimed in tort, only liquidated damages are claimed in trust transactions. A receiver or manger must act in good faith but he owes no duty in negligence to take reasonable care in dealing with the assets of the company. A trustee's misappropriation of trust property is not generally compensated by way of damages for tort because the courts look at such breaches of duties with disfavour.
All civil injuries are not torts
Although a tort is essentially a civil injury, all civil injuries are not torts. For example, public nuisance committed by a person is not a tort and an action for it has to be taken by the State. Only in cases where the particular act of public nuisance are private citizens are entitled to bring action. If a person wrongfully obstructs a public road, the government authorities alone are entitled to take action against the wrongdoer. On the other hand, if the obstruction causes great inconvenience, delay and excess cost of conveyance to a particular person who has to travel that way along with heavy luggage in loaded wagons and is compelled to take another route, he will be able to get damages from the wrongdoer for the special damage suffered by him.
The most appropriate remedy for a tort is action for damages. Similarly, breaches of statutory duties for which the special remedy of mandamus is provided will not come under tortious liability although they are civil injuries. Under the mandamus order, the person who fails to comply with the condition laid down in the statute will be compelled to do a certain act in conformity with the provisions of the particular statute.
Public law remedies
Public law remedies have also been extended by the Supreme Court to the realm of tort. Some examples are as follows:
1. Compensation was awarded to persons who suffered personal injuries at the hands of Government officers which amounted to tortious acts.
2. Compensation was directed to be paid to those who suffered injuries on account of police atrocities.
3. The Supreme Court awarded compensation in a number of cases involving custodial death.
4. For medical negligence the Supreme Court awarded compensation in Legal Aid Committee v. State of Bihar.
Damages were awarded by the Supreme Court in Manju Bhatia v. N.D.M.C. for breach of statutory duty.
GENERAL PRINCIPLES OF LIABILITY
In general, a tort consists of some act done by a person which causes injury to another, for which damages are claimed by the latter against the former. In this connection we must have clear notions with regard to the words damage and damages. The word "damage" is used in the ordinary sense of injury or loss or deprivation of property of some kind, whereas damages mean the compensation claimed by the injured party and awarded by the court. Damages are claimed and awarded by the court to the parties for damage suffered by them.
The word injury is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not.
Damage without injury (damnum sine injuria)
There are many acts which thought harmful are not wrongful and give no right of action to him who suffers from their effects. Damage so done and suffered is called damnum sine injuria or damage without injury. Damage without breach of a legal right will not constitute a tort. They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one's own premises.
The right of competition had been recognised in an case known as Gloucester Grammar School Master case, where it had been that the plaintiff, a schoolmaster, had no right to complain of the opening of a new school. The damage suffered was mere damnum absque injuria or damage without injury.
Injury Without Damage (injuria sine damno)
Just as there are cases in which damage is not actionable as a tort, so conversely there are cases in which an act is actionable as a tort although it has been the cause of no damage at all. In Ashby v. White, the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The candidate for whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt, C.J. saying that there was the infringement of a legal right vested in the plaintiff. All torts can be divided into two categories. They are: (i) those actionable per se, i.e. actionable at mere sight, and (ii) those which are actionable only of proof of actual damage resulting from them. Trespass or unauthorised entry on another person's land is actionable per se, i.e., even if your act of trespass has not caused substantial injury to the owner of the land you will be liable, for there has been an infringement of a legal right vested in him. On the other hand if you drive your car negligently on the public road, you will be held civilly liable to another person only if an injury has been caused to the latter in consequence of your negligent and rash driving. In such cases damages are awardable only if actual damage is caused to a party. Almost all cases of injuria sine damno fall in the category where the defendants are held liable for the infraction of legal rights vested in the plaintiffs although the particular actions of the defendants might not have caused any substantial loss to the plaintiffs. Trespass is actionable even though it has not done to the plaintiff even the slightest harm.
Foundation of tortious liability
Two competing theory, wider and narrower, pigeon-hole theory
There are two theories with regard to the basic principle of liability in the law of tort or torts.
They have been clearly set forth by Doctor Winfield thus:
"(1) All injuries done by one person to another are torts unless there is some justification
recognised by law.
(2) There is a definite number of torts outside which liability in tort does not exist."
According to the first theory, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiffs.
According to the pigeon-hole theory, I can injure my neighbour as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort. The law of tort according to this theory consists of a neat set of pigeon-holes, each containing a labelled tort. If the defendant's wrong will not fit any of these pigeon-holes, he has committed no tort.
The first theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the nineteenth century A.D. Similarly, the rule of strict liability for the escape of noxious things from one's premises was laid down in 1868 in the leading case of Rylands v. Fletcher.
The second theory is supported by Salmond. He said: "Whether I am prosecuted for an alleged offence or sued for an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not for me to defend myself by proving that it is within some specific and established rule of justification or excuse."
For Sir John Salmond there was no English law of tort; there was merely an English law of torts. Under the practice of the early writs, parties had to go out of court without getting any damages if their particular injury could not fit in with any of pre-existing types of writs. Jenks was also a supporter of this view but he maintained that acceptance of this view would not make the English law of torts less expansive, for from time to time English Judges were able to expand the law through precedents.
In an Indian decision, Lala Punnalal v. Kasturichand Ranaji, it was pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts and in that way malicious house search may constitute such a new tort.
Essential conditions of liability in tort: Act or omission, intention or negligence, strict liability, damage, reasonable man, malice
The three essential conditions of liability in tort are:
1) An act or omission on the part of the defendant.
2) Intention or negligence or the breach of a strict duty on the part of the defendant.
3) Negligence resulting in damage to the plaintiff which is not too remote a consequence of the defendant's conduct.
1) An act is any event which is subject to the control of the human will. These acts are either positive or negative; either acts of commission or acts of omission. A wrongdoer either does that which he ought not to do or leaves undone that which he ought to do. If you wilfully deceive another by making false representations to him, you are liable for the positive wrong of deceit. If, on the other hand, you wilfully withhold information from another to whom you are in duty bound to give information in full, you may thereby be causing injury to him. You may nevertheless be liable to him for your omission to supply him with material information. Generally the law does not impose liability for mere omissions. A man may watch a child drown in two feet of water without making any effort to help and incurs no liability, for there is no obligation on anyone to play the good Samaritan. But if a father were to watch his child drown in two feet of water without attempting a rescue, he will be liable since the parent-child relationship imposes a positive duty.
2) Winfield said, "Intention signifies full advertence in the mind of the defendant to his conduct which is in question and to its consequences together with a desire for those consequences."
Desire for a particular consequence is predominant in all intentional acts. But in certain cases law will impute intention to the parties. In such cases in point of law parties will be deemed to have intended the natural and probable consequences of their acts. "The intentions of men are inferences of reason from their actions where the action can flow but from one motive, and be the reasonable result of that one intention."
3) Negligence has got two meanings in the modern law of tort. Firstly, it forms an independent specific tort which will be looked in detail later in the latter part of this book. Secondly, it indicates a state of mind, i.e., a particular mode of doing some act. When you drive a car along the public road in a careless manner without taking due care to avoid accidents, you are driving the car carelessly and negligently. In this circumstance, negligence means carelessness. There is no desire for the consequence and it is this aspect which distinguishes negligence from intention. In the case of wrongful intention, the defendant is guilty of negligence when he does not desire the consequences and does not act in order to produce them but is nevertheless indifferent and careless whether they happen or not and therefore does not refrain from the act. Where an act is shown to be intentional, the plaintiff cannot be allowed to elect to treat it as a merely negligent act to gain a procedural advantage.
Negligence and inadvertence
Carelessness as to possible consequences very often results in a failure to bring those consequences to mind, i.e., inadvertence. The careless person not only does not intend the consequences but does not even advert to it; its possibility and probability does not occur to his mind. Further, there are also cases of wilful, i.e., conscious and advertent negligence. The wrongdoer may not desire or intend the consequences but may yet be perfectly conscious of the risk of it. He does not intentionally cause the harm but he intentionally and consciously exposes others to the risk of it.
Negligence and want of skill
It is commonly said that want of skill amounts to negligence. Unreasonably assuming the work of a specialist but failing to show the skill of a specialist is an adage exemplifying this principle. Strictly, however, negligence lies not in one's lack of skill (which is a misfortune) but in voluntarily undertaking some act for the performance of which special training and skill is necessary. But where a person thus deficient is placed involuntarily in a situation where that skill or faculty is essential for safety, he is not guilty of negligence simply because an ordinary man would have successfully avoided the harm. He must be judged with reference to his own capacities. Thus if a man with a defective vision is compelled by circumstances to drive a car, he will not be judged as though he could see perfectly. He must be then judged with reference to his own capacities of mind and body and if he does his best, he does enough, even though a man better endowed would have been bound to do much better.
Reasonable man usually refers to the ordinary average man of society. Reasonable conduct of a person may be described as the behaviour of the ordinary man in any particular event or transaction.
Every act of an individual will have an immediate intent (object) and an ulterior motive (purpose). The law is generally concerned only with the immediate intent of the act and not its ulterior purpose.
The word malice in law means something more than mere evil motive. It signifies either (i) The intentional doing of a wrongful act without just cause or excuse, or (ii) an action determined by an improper motive. To act maliciously means sometimes to do the act intentionally, while at other times it means to do the act with some wrong and improper motive, i.e., some motive which the law disapproves.
A leading case on this matter is Mayor of Bradford v. Pickles. Pickles was annoyed at the refusal of the Bradford Corporation to purchase his land in connection with the scheme of water-supply for the town. In return, actuated by feelings of revenge, Pickles sank a shaft in his land and abstracted the water which percolated through the soil of his land in unknown and undefined channels from the land of the corporation. The corporation sued for an injuction to restrain Pickles from diminishing or polluting their water. The defendants were held not liable. Lord Watson said: "No use of property which would be legal if due to a proper motive can become illegal because it is prompted by a motive which is improper or even malicious."
An act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer of the act liable to civil action. If a person prosecutes another for crime which can be proved to be true, it can make no difference that he took malicious pleasure in instituting the prosecution or in publishing the defamatory matter. Similarly, a man might lawfully arrest his debtor, though he had maliciously brought up the debtor's bills with a view to procuring his imprisonment.
Anyhow there are certain special cases (apart from criminal wrongs) which admittedly form an exception to the rule of irrelevance of motive in the law of torts in which motive is relevant. They are: (a) Wrongs of defamation on a privileged occasion-privilege is lost when evil motive is shown. (b) Malicious prosecution. (c) Injurious falsehood, slander of goods, etc. (d) Nuisance. (e) Conspiracy. (f) Unlawful interference with another's lawful activities. (g) Evil motive may aggravate damages.