Answer:- The word tort has been derived from Latin term ‘Tortum’,which means to twist. It therefore includes that conduct which is not straight or lawful, but on the other hand, twisted, crooked or unlawful.It is equivalent to English term ‘wrong’.
Why an accurate definition of ‘Tort’ is not possible?
First, law of tort is based on decided cases. Judges, while deciding a case, feel their primary duty is to adjudge the case in hand rather than to lay down wider rules and hence they seldom manufacture any definition of legal term.
Secondly, law of tort in England grew through a complicated procedure. The remedy for an illegal injury was provided on the basis of forms of action, i.e., writ and there was a next compartment of law of tort and thus there does not exist any definition of tort.
Also Read Question:- “A tort is essentially a civil injury but all civil injuries are not torts”-Discuss.
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Lastly, the law of tort is still growing. If a thing is growing no satisfactory definition can be given.
The definition of tort has been attempted by several writers. These definitions may be divided into two categories. There is one group of writers who defines tort in relation to breach of contract. For instance,Underhill says, “A tort is an act or omission which is unauthorised by
law, and independently of contract:
(i) infringes either:
(a) some absolute right of another; or
(b) some qualified right of another causing damage; or
(c) some public right resulting in some substantial and particular damage to some person, beyond that which is suffered by the public generally; and
(ii) gives rise to an action for damages at the suit of the injured party.
Clerk and Lindsell in their ‘Law of Torts’ describe a tort as a “wrong independent of contract for which the appropriate remedy is a common law action.”
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Similarly, Salmond says that, “A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation.”
Essential Elements of Tort
On the basis of these definitions it may be said that three distinct factors are essential to constitute a tort.
(1) Tort belongs to the category of civil wrongs: The basic nature of civil wrong is different from criminal wrong. Tort is a specie of civil law as opposed to criminal law. In tort the injured party files a suit in a civil court, with the dominant purpose of getting compensation for the
injury suffered by him. But in criminal law the proceeding is initiated by the State in a criminal court with the purpose of punishing the person who has committed the crime.
Sometimes, it may be that the same act is a crime as well as a tort. A person who has committed such an act may be held liable simultaneously to pay compensation to a plaintiff in civil suit and to punishment in a criminal proceeding. In such a case civil and criminal proceedings are not mutually exclusive.
(2) Tort is other than a breach of contract: In civil law itself there are several instances where a man is asked to compensate for the injury which he has caused to another person. Tort is the civil wrong and is not exclusively any other kind of civil wrong. Such instances are common in the form of breach of contract or breach of trust, etc. Tort is akin to but distinct from these instances.
When a particular wrong is exclusively a breach of contract, etc. it cannot be a tort. But if it is found that it is neither a mere breach of contract nor a breach of trust nor other equitable obligations, then it can be said to be a tort.
(3) Action for unliquidated damages: In tort the damages are unliquidated. Unliquidated means not pre-fixed. After the wrong has been committed, generally it is the money compensation which may satisfy the injured party.
After the commission of the wrong it is generally not possible to undo the harm which has already been caused. But where he depends on the discretion of the Court for the quantum of damages to be awarded he is said to claim unliquidated damages. Though there are other remedies also but remedy in the form of unliquidated damages is one feature of a tort action.
There are other writers who define tort in the term of breach of legal duty or infringement of a legal right. Fraser, for instance, says, “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.”
According to Professor Winfield, P.H., “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.”
Thus, according to Winfield, in order that a person may be held responsible in tort, the following conditions must be fulfilled:
(1) There should be breach of a duty.
(2) This duty should be primarily fixed by law.
(3) This duty should be towards persons generally.
(4) Remedy for the breach of aforesaid duty should be available
in the form of unliquidated damages.
An analysis of the above elements will show that there are three main points around which Professor Winfield’s definition revolves. They are:
(1) Duty: According to this definition, law imposes duty on every person in the society. The law also expects that all persons will observe these duties and will not make a breach of them. A person incurs liability in tort when he makes a breach of such duty. There are two special
features of the duty contemplated in the definition. They are :
(a) Duty primarily fixed by law: Here each and every word is important. Duty should be fixed (i) primarily and (ii) by law. It means that the duty should exist already. It must be antecedent in time. Antecedence is to be decided with reference to the date of occurrence. Secondly, this duty should be fixed by law and not by the parties. This part of definition goes to distinguish a tort from a contract, because in contract the obligation of the parties is decided by the consent of the parties thereto.
(b) Duty towards persons generally: Another feature of the duty is generality. Duty is general, on every person and liability may attach to any person who makes a breach of duty.”
(2) Breach: Breach means non-observance of the duty as aforesaid. Liability will arise only when there is a breach of duty.
(3) Remedy in the form of unliquidated damages: It is the same as envisaged in Salmond’s definition.
Winfield’s definition provides a good working rule. The greatest merit of this definition is the incorporation of concept of duty. The concept of duty implies, on the one hand, the relationship of plaintiff and defendant, and on the other, the standard of behaviour which the
defendant is required to fulfil.
In spite of all its merits, the definition of Winfield is far from being precise. It does not explain the reason that why a master is held liable for the tort committed by his servant or why a person, who has brought an unusual thing upon his land, is liable, if such thing, without any fault on his part, escapes and does damage to another.
Besides, the phrase “duty towards persons generally” is very vague for it is hardly adequate, on the one hand, to include duties arising from special relationship like carrier and passenger, or doctor and patient, and on the other, to exclude duties between trustee and beneficiary, or guardian and ward, which fall outside the scope of Law of Torts.
From what is stated above, the following characteristic features of the concept of tort emerge. They are:
(1) A tort arises by the operation of law and not by the consent any particular person. On this basis tort may be distinguished from the breach of contract. In contract the wrong complained of arises from the breach of agreement between the parties.
(2) In many tort actions the appropriate remedy is unliquidated damages though it is not the only remedy available in the field of tort. There are other remedies also, for example, injunction, self-help, etc. But unliquidated damages is the dominant remedy.