• Mr. Mir Adil Rashid

Torts: Introduction and Nature

INTRODUCTION

The word Tort has been derived from the Medieval Latin word "tortum" which means "wrong" or "injury" and was further developed from an old Latin word "torquere" which means "to twist". This word actually originated from the French language and in English is equivalent to the word "Wrong". It is a civil wrong which arises by the breach of duty. Section 2(m) of the Limitation act 1963 describes Tort as a civil wrong which is not just exclusively a breach of contract or breach of Trust.


When a person's duty towards other individuals is affected a tort arises and an individual who commits a civil wrong is known as tortfeasor or simply a wrongdoer. Joint tortfeasors means when multiple individuals are involved in a civil wrong or tort and these tortfeasors can be sued individually or jointly for wrongdoing or tortious act. To provide Compensation to the victims is the main aim of Law of Torts. The money received by the victims in the form of compensation is known as damages.

  • According to Richard Dien Winfield, tortious liability emerges from the breach of duty primarily fixed by the law, this duty is towards the other people generally and it is breech is redressible by an action for unliquidated damages.

  • According to Fraser, A tort is an infringement of a right in rent of a private individual giving a right of compensation at the suit of the injured party.


NATURE

  • TORT AND CRIME

Tort is a species of civil wrong or injury but there is a punitive element in some aspects of the rules on damages. Civil and criminal wrongs distinction depends on the nature of remedy provided by law. A civil wrong gives rise to civil proceedings. Every civil wrong is not a tort and only such civil wrong may be labelled as wrong where the appropriate remedy for it is an action for unliquidated damages. The object of criminal proceedings is the punishment of the defendant for some act of which he is accused. In Crime the damages are liquidated as against the tort in which the damages are unliquidated. Tort is the violation of civil rights while Crime is the violation of public rights and duties which affect the whole community.


  • TORT AND CONTRACT

P.H. Winfield's definition clearly brings distinction between the tort and contract it provides that Tortious liability arises from the breach of a duty primarily fixed by the law and such a breach is redressible by an action for unliquidated damages and on the other hand in a Contract legal obligation is constituted and defined by the parties to the Contract. The tort and Contract at the present day are distinguished from one another in that the duties in the tort are fixed by law and in Contract duties are fixed by the parties themselves.

Further a Contract is founded upon the consent a tort is inflicted against or without consent. No privity is needed in tort but it is necessary in case of Contract.


  • TORT AND QUASI-CONTRACT

Where a person is held liable to another without any agreement, for money or benefit received by him to which other person is entitled these situations are covered by the Quasi Contract. One of the views is that under a Quasi Contract the judicial basis for the obligation is the existence of a hypothetical contract which is implied by law. The Tort is different from Quasi Contract in many ways like, In Quasi Contract a person is not duty-bound to repay the benefit of money received but in case of Torts there is duty imposed on the person. As in Tort damages recoverable are unliquidated damages in Quasi Contract damaged recoverable are liquidated damages. However, in both Tort and Quasi Contract obligation is imposed by law and not under any agreement.


FOUNDATION OF TORTIOUS LIABILITY

According to professor winfield for over six hundred years the law of torts has been a definite path of English law. Tort a civil wrong consists of those wrongs which violate the rights or cause legal injuries to a person for which damages are provided by the law to them. Now the question arises whether it is law of tort or law of torts and in this respect the two theories have been propounded by the jurists which are opposed to each other. According to first theory propounded by Sir John salmond provides the number of torts are specific beyond which no liability in torts arise which can be called the law of torts in other word. According to Salmond there was merely English law of torts and was no English law of tort and the English law of torts consists of a list of acts and omissions and which is actionable in certain conditions.


According to another theory propounded by Sir Fredric Pollock which is opposed by the above one was that "all the injurious acts which cause harm to the other person or torts until the presence of any legal justification for it and in other words it can be said as the law of torts". This theory was strongly supported by Dr Winnfield but he criticized Salmond's theory by calling it a doctrine of 'pigeon hole'. Lord Mansfield, Lord Comden and Dr Allen support this theory and according to Lord Comden torts are various, nor limited, nor codified. As Dr Winfield support the view that law of tort completely lies on general principle there are reasons to support this view the entire history of the development of the law of torts is proof that the trespass ( A tort) has now grown up and is still growing continuously as compared to its beginning, in the same manner, tort of malicious prosecution was not in the same form as it exists today.


In the 19th century in the case of Rylands vs Fletcher and Rooks vs Bernard the torts such as , negligence, strict liability and deceit came off as an independent tort. In 1963 new duty in the field of negligence and monetary injury caused due to negligent statement was introduced by the house of lords and in 1979 the scope of tort was considerably broadened and examples cited above makes it clear that the law of tort is expanding continuously and is not confined in a set of pigeon holes. It is inevitable in the society that the injuries will increase with the increase in the number of persons so that every person who is injured has a right to get compensated and to get compensation every legal injury or damage need to recognize each harmful act is a tort, so it is not limited to that hole only, torts are infinitely various which is not limited to some extent or confined.


The author is pursuing BA.LLB at School of Legal Studies, Central University of Kashmir.

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