Law of Torts: Meaning, Civil Wrong Features, Essential Elements, Mental Element, State Liability Cases

Meaning of Tort

The word “tort” is derived from the Latin term tortum, which means twisted, crooked or wrongful.

The law of torts is a branch of civil law. Its basic function is to protect certain interests of persons recognized by law, such as:

• personal security
• reputation
• property
• comfort
• privacy

The law of torts is mainly concerned with duties fixed by law and not by the agreement of parties.

Important Definitions of Tort

Winfield

Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.

Salmond

A tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract, breach of trust, or other merely equitable obligation.

Fraser

A tort is an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party.

Section 2(m), Limitation Act, 1963

“Tort” means a civil wrong which is not exclusively the breach of a contract or the breach of a trust.”

Thus, the nature of tort may be understood through the following features:

1. Tort is a civil wrong

   A civil wrong is one where the injured party approaches the court for a private remedy.

   Though the same act may sometimes amount to both tort and crime, such as assault, defamation, nuisance, or negligence causing injury.

2. Duty in tort is primarily fixed by law

   In tort, the duty is imposed by law and is usually owed towards persons generally. It is not created by consent.

3. Remedy is generally unliquidated damages

   The amount is not fixed in advance. It is determined by the court depending on the injury suffered.

4. Tort is distinct from breach of contract and breach of trust

   Every civil wrong is not a tort. Breach of Contract and Breach of Trust is a civil wrong but not a tort.

5. Nature of Right Involved in Tort - Right in rem

   Tort usually relates to the violation of a right in rem, that is, a right available against the world at large, and not merely against a particular person.

   This is why tort is distinguished from contract, which is generally connected with a right in personam.

Winfield’s Theory and Salmond’s Theory

Winfield’s Theory

According to Winfield, tortious liability arises from the breach of a legal duty, and the law of tort is capable of growth. New torts may develop whenever a new wrongful act causes injury and the law recognizes a remedy.

This is called the wider theory or general principle theory of tort.

Salmond’s Theory

According to Salmond, there is no general principle of tortious liability. There are only specific, well-established torts. Liability arises only if the wrong falls within one of the recognized torts.

This is called the pigeon-hole theory.

Indian law has generally shown greater practical sympathy towards the Winfield approach, because courts have adapted tort principles to new situations.

The law of torts covers a wide variety of wrongs, such as:

• negligence
• nuisance
• defamation
• trespass to person
• trespass to land
• trespass to goods
• conversion
• deceit
• malicious prosecution
• false imprisonment
• vicarious liability
• strict liability
• absolute liability

Essential Elements of Tort

1. Wrongful Act or Omission

The first requirement of tort is that there must be some act or omission on the part of the defendant. Tortious liability may arise either by doing something which the law prohibits, or by failing to do something which the law requires.

Thus, a tort may arise by a positive act, such as assaulting another, publishing a defamatory statement, unlawfully entering another’s land, or negligently driving a vehicle; or by an omission, such as failure to take reasonable care where there is a legal duty to do so.

2. Legal Damage

The second and most important element is legal damage, also called legal injury. Tort law does not proceed merely on the basis that the plaintiff has suffered some loss in fact. The plaintiff must show that the defendant’s conduct caused an infringement of a legally protected right.

(A) Injuria sine damno

This means legal injury without actual damage. Here, the plaintiff’s legal right is violated, even though no actual monetary loss or physical harm is proved. In such a case, the law still gives a remedy because the right itself has been infringed.

Ashby v White (1703) - This is the classic authority. The plaintiff was wrongfully prevented from exercising his vote. Even though the candidate for whom he wished to vote was successful, the court held that the plaintiff had suffered a violation of his legal right, and therefore an action lay. This principle is closely connected with the maxim ubi jus ibi remedium.

Bhim Singh v State of J & K

(B) Damnum sine injuria

This means actual damage without legal injury. Here, the plaintiff may have suffered actual loss, even financial loss, but no legal right has been violated. In such a case, no action lies in tort.

Gloucester Grammar School Case - A schoolmaster opened a rival school, as a result of which the plaintiff suffered economic loss because some students left. The court held that although the plaintiff had suffered loss, no legal right had been infringed. Therefore, no action lay. This is the classical example of damnum sine injuria.

Mogul Steamship Co. v. McGregor, Gow & Co. - Competitive business practices caused loss to the plaintiff, but since no legal right was violated, no tort action was maintainable.

3. Breach of Legal Duty

This is the central element of tortious liability. The defendant must have breached a duty imposed by law.

A mere moral wrong, social disapproval, or discourteous behaviour is not enough. Tort law is concerned only with those acts or omissions which violate a legally protected right of another person. This is why every harm is not actionable in tort.

Illustration - If a person sees a stranger drowning and does nothing, moral blame may arise, but ordinarily no tortious liability arises unless there existed a legal duty to act.

If there is no legal duty, there is no tort. A person may act rudely, immorally, or inconsiderately, but unless he violates a duty recognized by law, tortious liability does not arise.

4. Remedy Must Be Available in Law

One of the most characteristic elements of tort is that the wrong must be one for which the law provides a remedy. The usual remedy in tort is unliquidated damages, though injunction, restitution, or other civil relief may also be available.

Ubi jus ibi remedium

This is the foundational idea of tort law. If the law recognizes a legal right, and that right is violated, the law should ordinarily provide a remedy.

This maxim does not mean that every moral wrong has a legal remedy. It means that where there is a legally protected right, courts will generally provide relief when that right is infringed.

Mental Element in Tortious Liability

Fault is relevant in many torts, but not in all. Therefore, it is wrong to say that wrongful intention is always essential for tortious liability.

In many torts, such as negligence, fault in the form of lack of due care is essential.

In intentional torts, such as assault, battery, false imprisonment, and deceit, intention is important.

But in certain torts, liability may arise even without wrongful intention or negligence, as in strict liability.

Malice in Tort Law

Malice in Fact

Malice in fact means actual ill will, spite, or improper motive against a particular person. It refers to the defendant’s state of mind in the popular sense. Where a tort specifically requires proof of improper motive, as in malicious prosecution, malice in fact becomes material. In certain defamation cases also, express malice becomes important where the defendant relies upon a privilege and the plaintiff seeks to displace that protection by proving bad faith.

Malice in Law

Malice in law does not mean personal spite. It means the intentional doing of a wrongful act without just cause or excuse. The law, in such cases, treats the act as malicious because it is unlawful and unjustified, whether or not the defendant was moved by hatred or enmity. The distinction is important because tort law is ordinarily concerned more with the legal quality of the act than with the emotions behind it.

This principle is classically illustrated by Bradford Corporation v Pickles. In that case, the defendant interfered with underground water percolating through his land with the object of compelling the corporation to purchase his land on advantageous terms. The House of Lords held that since the defendant was exercising his lawful rights over his own land, the fact that he acted maliciously or from an improper motive did not make the act unlawful. The decision firmly establishes that a lawful act does not become unlawful merely because the motive behind it is malicious.

The same principle found expression in Indian law in Town Area Committee v Prabhu Dayal. The court emphasized that compensation can be claimed only where injury is caused by an illegal act of the defendant. It made clear that malice by itself does not create liability, and that a legal act, though motivated by malice, will not make the actor liable in damages.

Capacity in Tort

Capacity in tort means the legal ability of a person to incur tortious liability or to sue and be sued in tort. In simple terms, it answers the question whether a particular person or body can be made liable for a tort, and whether any special rule applies because of his status.

The general rule is that every person is liable for his torts unless the law grants some special protection or immunity.

The topic should be read as a collection of special rules.

1. Minor

A minor is liable for his torts in the same manner as any other person. Minority is generally no defence in tort. Thus, if a minor commits assault, trespass, defamation, nuisance, negligence, or other recognized tort, he may be held liable.

Reason - Because tortious liability arises from breach of duty fixed by law, not from agreement. Since tort is independent of contractual capacity, the fact that a person is a minor does not automatically protect him.

However, A minor cannot be made liable in tort when the tort is in substance merely a disguised action for breach of contract. If the real complaint is that the minor failed to perform a contract, then the plaintiff cannot evade the rule of contractual incapacity by simply calling it a tort.

For example, If a minor fraudulently hires a horse and injures it by over-riding, courts examine whether the action is truly for an independent wrong or is only indirectly enforcing the contract.

Burnard v. Haggis

Minor is liable for an independent tort; the plaintiff cannot merely enforce contract against a minor by dressing the claim as tort.

2. Person of Unsound Mind

A person of unsound mind is generally liable for his torts in the same way as a normal person, provided the required elements of the tort are present. Insanity is not a general defence in tort.

Reason - Tort law is mainly concerned with compensation to the injured person. Therefore, if a person of unsound mind causes legally recognized injury, he may still be liable.

However, where a particular tort requires a specific mental element, the mental condition of the defendant may become relevant.

For example, in deceit, fraudulent intention is relevant; in malicious prosecution, malice and absence of reasonable cause matter; in some intentional torts, capacity to form intention may be significant.

But in torts like negligence, trespass, or nuisance, insanity does not ordinarily excuse liability.

3. Intoxicated Person

As with unsoundness of mind, if the tort specifically requires a certain state of mind, intoxication may be factually relevant, but it is not a general defence.

4. Husband’s Liability for Wife’s Torts

At old common law, husband and wife were treated as one legal person, and the husband could be liable for the wife’s torts in some situations.

Modern Rule - That doctrine is obsolete. Now the wife is herself liable for her own torts, and the husband is not automatically liable merely because of marriage.

Husband is not vicariously liable merely because he is husband.

5. Corporation

A corporation can be liable in tort just like a natural person. A corporation acts through human agents, officers, directors, and servants. Their acts, done in the course of corporate functions, may create liability of the corporation.

Earlier, there was doubt whether corporations could be liable for torts involving malice, fraud, or intention, because a corporation had no mind.

That difficulty has largely disappeared. The intention, fraud, or malice of responsible officers may, in suitable cases, be attributed to the corporation.

Citizens’ Life Assurance Co. v. Brown

This case is often cited for the principle that a corporation may be liable even for torts requiring mental element through the acts and state of mind of its agents.

6. State or Government

Under Article 300 of the Constitution, the Government of India and State Governments may sue and be sued.

Indian law traditionally distinguished between:

• sovereign functions; and non-sovereign or commercial/welfare functions.

The State was often held not liable for acts done in exercise of sovereign functions, but liable for acts done in non-sovereign functions.

P & O Steam Navigation Co. v. Secretary of State

This is the classical starting point in India. It recognized the distinction between sovereign and non-sovereign functions. Liability was accepted for non-sovereign functions.

State of Rajasthan v. Vidyawati

The Supreme Court held the State liable where a government driver negligently caused death while driving a government vehicle. This case reflected a more liberal approach towards State liability.

Kasturi Lal v. State of U.P.

The Supreme Court denied liability where the loss arose out of acts done in exercise of sovereign powers by police officials. This case is famous for preserving sovereign immunity in certain areas.

N. Nagendra Rao v. State of A.P.

The Supreme Court criticized broad immunity and stressed that in a welfare State, sovereign immunity should be confined to very limited areas.