Nature and Definition of Law of Torts



Introduction:


Law of Torts means civil law. Tort is derived from the latin word ‘Tortum’ which means twisted and it implies a conduct which is not straight, twisted or unlawful. This is equivalent to English word wrong.The law imposes a duty for every person to respect legal rights of others. Any person who breaches or violates his legal duty but not moral or social duty does a wrongful act and with this act if any suffers an injury to his legal rights can file a suit against the person under the law of torts.

Helping a man who is struck in a car during an accident, helping people during the flood by providing food and medicines is a moral and social duty. Breach of moral and social duty cannot be compelled to be tortious liability. Breach of duty which is fixed by law arises tortious liability. For example, everyone has a duty to obey local traffic laws and if any breach of duty such as driving over the speed limit will be wrongful act and compels tortious liability.

The Law of Torts in India is derived from English Law of Torts with modifications suitable to Indian conditions. If any particular rule is unreasonable or unsuitable to Indian conditions, the courts may retire the rule or make a different rule. One of the example is Oleum Gas leak case in which Indian courts made rule of Absolute liability as there were certain limitations and exceptions for rule of strict liability which carries hazardous substances. In India, the Law of Torts has not been fully codified and it is still based on common law of England which has been applied by Indian courts in India. This law in India is based on judicial decisions. Even though it is not fully codified, Indian parliament has enacted and codified some of the branches of the acts to make the law clear and definite. Some of these acts are Motor Vehicles Act 1988, Specific Relief Act 1963, Fatal Accidents Act, 1955.


The Law of Torts signifies violation of rights and duties and so it is difficult to give a concise and complete definition of it. It is ever growing law and the courts are constantly developing its horizon by recognizing new torts. In view of these various reasons, so far no scientific definition has been possible which includes all its elements.

Important definitions of the Torts according to various sources and authors :
1) The Limitation Act, 1963 - Sec. 2(m) : Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.
2) Dr. Winfield : Tortious Liability arises from breach of duty primarily fixed by the law. This duty is towards persons generally and its breach is redressable by an action for unliquidated damages.
3) Fraser : A tort is an infringement of private individual right giving a right of compensation at the suit of the injured party.
4) Salmond : A tort is a civil wrong for which the remedy in common law is action for unliquidated damages, and which is not exclusively the breach of a contract or the trust or the breach of other merely equitable obligations.

Thus according to Salmond’s definition a tort is:
1) Tort is a civil wrong
2) This wrong is different from breach of contract or breach of trust or other equitable obligations
3) This tort is redressable by an action for unliquidated damages.

Functions of Law of Torts:


Function of Law of Torts is to shift the loss suffered by any person (plaintiff) to the person who has actually caused the loss (defendant). This law is made for those situations where the activities of persons will cause or have caused a hindrance in the interest of others. This is the collection of circumstances in which the courts give remedy by way of damages for legally unjustified injury or harm or damage.

Elements of Torts:

1) Breach of duty fixed by law which is different from moral duty or a social duty
2) Duty towards persons generally
3) Breach of duty results in compensation or damages that are paid by the defendant’s to the plaintiff.

Damages are the most important remedy for a tort. After the wrong doing, generally money compensation may satisfy the injured person as the original position before the wrong doing cannot be restored back. There are other remedies such as injunctions are available to stop wrongful acts such as continuance of nuisance, rather than claiming compensation from time to time if the nuisance is allowed to continue. Damages in the case of a tort are unliquidated. The parties to the tort are not known to each other until the tort is committed and it is difficult to estimate before hand the quantum of loss, and therefore, the damages to be paid are let be determined by the court and so they are unliquidated.