THE LAW OF TORTS

What does the Law of Torts deal with?

Torts are civil wrongs that the injured party can seek legal redressal for. Unliquidated damages i.e. compensation that has not been previously determined between the parties, can be claimed by the injured parties.

Some examples of such ‘civil wrongs’ are:

• Nuisance
• Negligence
• Civil Trespass (as distinguished from ‘criminal trespass’ where some statutory [defined in statute] offence is committed by the trespasser)
• Defamation

Concepts such as; Civil wrong and Liquidated Damages will be exhaustively explained in the course of the module. The above definition is just for the purposes of getting started.

The Law of Torts and the Entrance Exam

The law of torts is an area of tremendous emphasis in the law school entrance exam. Since it is a basic and fundamental area of the law, the principles of the law of torts form fodder for numerous questions. Though the number of questions based upon torts principles may vary, one or more principles always end up being used as the basis for legal problems in the paper. Therefore, a thorough understanding of this area of legal reasoning is an absolute must.

It must also be noted that torts principles find place not only in the legal reasoning section but also in the legal knowledge component. Thus not only are you supposed to understand the principles, you also have to remember their content.

The LST way of dealing with the Law of Torts

• In this module we shall follow the following procedure of dealing with the law of torts:
• Study each tort separately and exhaustively
• Understand the various principles that form a part of the tort that is dealt with

• Apply these principles to a situation to:
• Identify which tort we are dealing with
• Ascertain whether a particular action has the ingredients for the tort

• Pinpoint what remedies are available to the injured party
• Understand what defences are available to the respondent in the tort claim and when these defences can be employed
• Solve problems that have found place in previous years law school entrance papers

I. FUNDAMENTALS OF TORTS

Where does the word “tort” come from?

The word tort is derived from ‘Tortum’ which is a latin term which means to twist. It implies such conduct that is twisted or not straight. It can be equated to the ‘wrong’. Thus the law of torts deals with acts that are twisted, wrong, unlawful etc. By doing these acts the act-doer violates a right of some other person.

What are these rights that get violated and where do they come from?

In order for society to coexist peacefully each one of us must fulfil some duty to our fellow beings. Duties to respect people’s private spaces, not to do such things that unfairly disturb others, to be careful and diligent when we deal with fellow beings etc. Just as we have such duties, others also have duties towards us. Thus all people have rights and duties. We have the right to such things as our private spaces, not to be unfairly disturbed etc. We have the duty to respect the similar rights of others. Thus we necessarily exist in a world of rights and duties. The law of torts deals with the violation of such rights of people. These rights rarely find mention in written laws and have been passed down legal systems by judgements of courts.

Where in the Indian Legal System is the Law of Torts found?

India has inherited the law of torts from the English Legal System.

Barring a few civil wrongs, there are no written laws that specifically and comprehensively deal with the law of torts. It is up to the Indian courts to apply an English tort principle if justice demands it in a certain situation. But it is important to remember that it is the court’s choice whether to apply or not to apply such principle. The court cannot be compelled to do so unless a higher court has used it in a similar situation (by the “doctrine of precedent”). Very few tort claims come to the courts, primarily because people or not aware of all their rights and also because fighting a court case is just not worth the time and the effort. This is in sharp contrast to the United States where tort claims are very frequent and people take each other to court for the most trivial of matters.

However there have been some prominent cases that have involved torts claims, namely,

Union Carbide Corporation v. Union of India (“Bhopal Gas Tragedy case”)

M.C. Mehta v. Union of India  (“The Oleum Gas Leak case”)

In the course of the module we shall deal with these cases in detail because you may be questioned on them, not just in the legal reasoning portion but also in the legal knowledge portion.

When one says that torts are “civil wrongs”,  what do they mean?

A common definition of torts is that they are redressible civil wrongs. By civil wrongs it is meant those wrong actions that are not recognised by the state as being criminal wrongs.

Criminal wrongs are more serious wrongs that the state feels compelled to specifically protect in the interest of the public and wrongs against which the state itself takes action.

Civil wrongs are against private rights while criminal wrongs are wrongs against the public itself even if the actual action hurt only one person. Suppose a person fails to cut the branches of a tree that’s growing in his garden and one such overhanging branch falls on the neighbour’s car and damages it, then it is a civil wrong because it is against one person and does not concern the public as such. On the other hand if a person murders another, then such a person is a danger to the whole society because the whole society is naturally concerned with the lives of community members. In this case the wrong is a criminal wrong as opposed to a civil wrong.

Therefore civil wrongs are usually defined in distinction to criminal wrongs and deal with private rights by virtue of being the member of a community rather than dealing with public rights which the public may have as a whole.

However it must be noted that certain actions may fulfil the criterion for both a civil wrong and a criminal wrong. For instance, careless driving which results in injury to a pedestrian may qualify to be a tort deserving damages and maybe a criminal offence prohibited under the penal code. Therefore, it cannot be said that the definitions are absolutely clear-cut.

A tort is defined as a civil wrong for which “unliquidated damages” can be claimed by the injured party. What is meant by “damages”, particularly “unliquidated damages”?

Damages are compensation payable to the injured party for injuries sustained because of the wrong. It is usually the most common remedy for torts. This is so because in torts it is very rare to undo the damage done. By stopping a negligent action one does not erase his past negligence. By writing good things about a person one does not reverse the damage sustained when bad things were written about that person without justification. Therefore the only way of soothing the injury is damages which are usually money compensation. This is not to say that there are no other remedies in torts other than damages, just that damages are the most common remedy.

Unliquidated damages are damages the amount of which has not been predetermined or decided before the wrong was committed. In the case of contractual claims# i.e. claims arising from breach of contract* etc., the parties usually decide in the contract itself, how much compensation will be paid if a breach of contractual terms occurs. These are called liquidated damages. However in civil wrongs such as torts there are obviously no such agreements and damages are not predetermined and are therefore unliquidated.  

The difference between a tort and a quasi-contract

When a person receives some benefit that another person was entitled to, then law implies that such a person is contractually bound to the correct recipient to compensate him for the misplaced benefit.  Thus, even if there was actually no such contract between the wrong recipient and the rightful recipient, law implies that the former owes a contractual duty to the latter. Such an implied or assumed agreement is called a quasi-contract. It is different from a tort because:

In a tort the duty is owed generally to all members of the public whereas in a quasi-contract, a duty is implied as being owed to a specific person i.e. the rightful recipient.

In a tort the duty is there all the time whereas in a quasi-contract it is formed because of a particular situation i.e. the wrongful receipt of benefit etc.

Furthermore, in quasi-contractual claims the injured party has the right to claim, under quasi-contract, the return of the benefit that wrongfully went to the wrongdoer. Therefore the damages may be liquidated or specific. In torts damages are usually unliquidated.

Is it the Law of Tort or the Law of Torts?

While to a layman freshly introduced to law, this may seem as a trivial difference to examine, there are actually some fundamental differences between reading this law to be the law of “tort” rather than “torts”.

If this law were the law of tort, then it would deal with every wrongful act i.e. every injury-causing act without valid justification or excuse. This law would deal with any wrong if it satisfied the definition of a tort. A wide-sweeping type of law.

If it were the law of torts, then it would deal with a number of specific “torts” and not with any “tort”. Thus one could come to court not for any civil wrong done to him but only for wrongs that fell under heads that the law had already specified i.e. negligence, nuisance etc. A more specific law.

Winfield, an authority in the field of tort law, is of the opinion that it is the Law of Tort. He bases this on the principle of ubi jus ibi remedium which implies that for every wrongful injury there must be compensation.

Salmond, another authority, is of the contrary opinion that it is the Law of Torts. Salmond believes that the specific torts are like “pigeon holes” and to prove your case one must prove that the wrong committed against him falls within one of the pigeon holes. This is, understandably, called the “pigeon hole” theory.

II. ESSENTIALS OF A TORT

In order for an action to be labeled a tort, it must satisfy two conditions:

There must be an act/omission on the part of the defendant /the alleged wrongdoer

In order to be liable for a tort a person must have done some act which he was not expected to do (for example, driving a car negligently) OR the person omitted to do an act which he was supposed to do (for example, cutting those branches of a tree which start to hang over the neighbours house and then break off and damage his car).

The act/omission should result in legal damage, which means the violation of a legal right of the plaintiff. In latin the legal damage is called injuria, basically a legal injury. A legal injury is not the same as any injury. One can suffer legal injury even if he hasn't suffered actual harm or has suffered very trivial harm. Therefore one can have legal injury even without actual injury. What is important in the eyes of the law is that something, which was not to be done to you, has been done or something, which was to be done, was not done.

There are two maxims that deal with whether a party has a valid claim in tort law. They are:

Injuria sine damno

Damnum sine injuria

Injuria sine damno.

This means the violation of a legal right without the causation of any damage. This is a valid claim in a court of law. For instance, if someone trespasses your property he can be held responsible even if that trespass did not cause any damage whatsoever to you. You have a right to non-violation of the bounds of your property and it is this right whose violation gives rise to a valid tort claim. A commonly quoted British example is that of a voter being prevented from voting. Despite the fact that the voter's candidate won anyway and the voter did not actually suffer any injury, even then, since the right to vote has been taken away, there is a claim in tort law. However there are certain torts that require damage to be proven.

Damnum sine injuria

This means the causing of damage without the violation of a legal right. Such a case is not a valid claim in the court of law. The fact that a man is injured by another man's act does not by itself constitute a cause of action; this may be even if the injury-causing act is intentional/deliberate. A violation of a legal right is required in order for there to be a valid cause of legal action. A simple example of this was illustrated in the case of Mogul Steamship Company v. McGregor Gow and Company, where a number of steamship companies conspired and drove another tea-carrier company out of business by offering lesser rates. Thus even though the plaintiff* was injured, the House of Lords# ruled that the other companies were entitled to indulge in such competitive practices and therefore there was no cause of action.¨

Does one need to have a guilty mind in order to be liable in tort law?

One would naturally assume that law would not punish those who did not intend to violate someone's rights. Well…no! In tort law there is NO general rule that one must have intended the guilty act in order to be held liable in tort law. In some torts such as assault, deceit and conspiracy the mental condition is relevant while in other torts such as mishandling of dangerous materials the mental condition is irrelevant. The reason for this is that tort law requires not just that people not attempt to hurt others but also that people do their best not to allow their actions to inadvertently* hurt others.

The Role of Malice in Tort Law

When someone does an act with a feeling of spite, ill-will or vengeance then the act is said to be done maliciously. In tort law as a general rule, malice or the lack of it, does not make a difference to the liability of the defendant. Similarly if an act is legal then the fact that it was done maliciously does not make a difference. For example, if your house is raided by the income tax department and the department can show that there was good reason to raid it, then the fact that an officer in the raid doesn't like you won't make a difference.

It must be remembered that malice deals with motive for an act rather than whether the act was intended or not. What's the difference between motive and intention? The difference is that intention is whether the act was deliberate or not and motive deals with why the intended act was done. For example, consider a situation where you play music very loudly in the house. Your neighbour takes you to court for causing a nuisance. You intended to play the music so there is intention but you had no malice. However if you had played the music loudly to disturb your neighbour then it would have been a case of intention along with malice.

In tort law intention makes a difference in some torts while malice makes a difference in very, very few torts. 

Solved Problems

#1 You mow the lawn every morning with the help of your electric lawnmower. Your neighbour files a tort claim against you stating that the noise of the lawnmower disturbs him greatly. Will his claim succeed?

Ans: In order for an action to be labeled a tort, there must be an act/omission and a legal damage resulting from that act/omission. In this case there seems to be an act and a damage but on closer examination it emerges that:

The act is not necessarily something that was not supposed to be done. Every man is entitled to mow his law with a properly functioning electric lawnmower as long as his does not do it at some unearthly hour thus waking up the entire neighbourhood.

The damage, if any, to the neighbour, is not a legal damage because though every person is entitled to peace and quiet within his property, this is subject to reasonableness. This means that everyday sounds like lawn-mowing, revving up the car to warm the engine, music system playing at a reasonable level etc. are sounds that cannot be complained against. This means that a persons peace and quiet is subject to reasonably carried on daily activities. You can’t be fussy and force the world to come to a standstill. So in this case there may be damage i.e. you are disturbed, the damage is not legal damage against which compensation can be claimed in law.

Therefore, this case would be one of damnum sine injuria where you might have been injured but because your legal right has not be violated, you have no claim in law.  Therefore, your neighbour’s claim will not succeed.

#2 In the above case, what if while mowing the lawn you were aware that your neighbour was being disturbed and you were secretly enjoying it? Will your neighbour’s claim succeed then?

Again, we must analyse the problem to find whether there has been a wrongful act and whether there is legal damage. The only difference between this case and the previous one is that here while doing the act of mowing you were aware that your neighbour was disturbed and you were amused by this fact. Therefore, the question that must be answered is whether the feeling of ill-will would make the lawful act of mowing illegal?

The answer is that malice or ill-will does not make a legal act illegal except in rare specific torts such as malicious prosecution. Therefore as long as the act you did was per se (by itself) legal, the mere fact that you did it maliciously does not make it illegal.

Therefore, even in this case your neighbour’s claim will not succeed. The situation might have been different if you were doing the act of mowing only to disturb your neighbour. If that was the sole motivation and you had no need to do the act otherwise then you would be liable.

#3 You establish a school and charge Rs.1000 per year as fees. Another school is set up near yours and competition forces you to reduce your fees to Rs.500. Do you have a remedy in law?

This question is based on the facts of the case of Gloucester Grammar School (1410). In that case the court held that though there was damage there was no legal injury because no one has a right to an unrestricted and protected market. Fair competition is natural and there is no right to protect you from it. As the facts of this case are materially the same as in Gloucester the principle applied is the same. This is a case of Damnum Sine Injuria where there is damage without the violation of a right therefore you have no remedy in tort law.

#4 You punch a person for no good reason however the person is not hurt. Can he claim damages for the reason that you trespassed his person?

In tort law there is the tort of trespass of person. This occurs when a person unjustifiably violates your person i.e. your physical being. For this tort damage need not be proven as long as a legal right is violated. Here your right not be physically violated is affected. Therefore there is legal injury if not actual damage. Thus, this is a case of Injuria sine damno where there is a legal injury without damage. Cases of injuria sine damno are actionable in court. Thus the person you punched can claim damages.