NOTES ON LAW OF TORT

The term 'tort' is the French equivalent of the English word 'wrong' and of the Roman law term 'delict'. The word tort is derived from the Latin word 'tortum' which means twisted or crooked or wrong. 

      Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is repressible by an action for unliquidated damages (Winfield and Jolowicz, 2002). In the words of Salmon (2009), 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 mere equitable obligation. 

       The person who has committed a tort, i.e. violated the legal right of another person thereby does a wrong directly or indirectly to him is called Tortfeasor. If the person is found to be guilty, he will have to compensate for the damages. If two tortfeasors commit a tort independently, they are called independent tortfeasors. If they commit a 'tort' together, they are called joint tortfeasors. 

Theories of Tort

There are two theories with regard to the basic principle of liability in the law of torts or tort. They are: 

i) Wider and narrower theory, and

ii) Pigeon-hole theory. 

  

  i) Wider and narrower theory: According to this theory, all injuries done by one person to another are torts, unless there is some justification recognized by law. This theory was propounded by Winfield (1963). According to him, if A injures his neighbor, the neighbor can sue A in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and A will be liable if A cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortuous. 

 ii) Pigeon-hole theory: This theory was proposed by Salmond (1910). According to this theory, there is a definite number of torts outside which liability in tort does not exist. According to this theory, A can injure his neighbor as much as he likes, without his fear of being sued in tort, provided A's conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort. The law of tort consists of a neat set of pigeon holes, each containing a classified tort. If the defendant's wrong does not fall in any of  these pigeon holes, he has not committed any tort. 

      There is, however, no recognition of either theory. It is a matter of interpretation of courts so as to select between the two theories.

Tort and Crime
     Earlier, tort had its roots in criminal procedure. Even today there is a punitive element in some aspects of the rules on damages. However, tort is a species of civil injury or wrong. The distinction between civil and criminal wrongs depends on the nature of the remedy provided by law. A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant, whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. Sometimes, the same wrong is capable of being made the subject of proceedings of both kinds - civil and criminal. For example, assault, libel, theft, malicious injury to property, etc. In such cases, the wrong doer may be punished criminally and also compelled in a civil action to make compensation or restitution. 
   Every civil wrong is not a tort. A civil wrong may be labeled as a tort only where the appropriate remedy for it is an action for unliquidated damages. However, a person is liable in tort irrespective of whether or not an action for damages has been taken against him. The party is liable from the moment he commits the tort. Although an action for damages is an essential remedy for tort, often there may be other remedies too. 
 Similarities between Crime and Tort: There is a similarity between tort and crime at a primary level. In criminal law, there is primary duty, like not to commit an offence, for example, murder; but this primary duty in tort is in rem and is imposed by law. In fact, the same set of circumstances will, from one point of view, constitute a crime and, from another point of view, a tort. For example, every man has the right that his bodily safety shall be respected. Hence, in an assault, the sufferer is entitled to get damages. Also, the act of assault is a menace to the society and hence will be punished by the State. However, where the same wrong is both a crime and a tort, its two aspects are not identical. Firstly, its definition as a crime and a tort may differ, and secondly, the defences available for both crime and tort may differ. Therefore, the wrongdoer may be ordered, in a civil action, to pay compensation and also be punished criminally by imprisonment or fine. If a person publishes a defamatory article about another in a newspaper, both a criminal prosecution for libel as well as a civil action claiming damages for the defamatory publication may be taken against him. 

Differences between crime and tort: Being a civil injury, tort differs from crime in all respects in which a civil remedy differs from a criminal one. They are as follows:

• Tort is an infringement or deprivation of private or civil rights belonging to individuals, whereas crime is a breach of public rights and duties which affect the whole community. 
• In tort, the wrongdoer has to compensate the injured party, whereas in crime, he is punished by the State in the interest of the society. 
• In tort, the action is brought about by the injured party, whereas, in crime the proceedings are conducted in the name of the State.
• Damages, in tort, are paid for compensating the injured, and, in crime,it is paid out of the fine which is paid as a part of punishment. Thus, the primary purpose of awarding fine in a criminal prosecution is punitive rather than compensatory. 
• The damages in tort are unliquidated and, in crime, they are liquidated.