Introduction to Tort

Law

What is Tort Law?

 Background
 The word ‘tort’ is derived from the latin
word tortus, which means ‘twisted’.
 It came to mean ‘wrong’ and it is still so
used in French: ‘J’ai tort’; ‘I am wrong.’
 In English, the word ‘tort’ has a purely
technical legal meaning – a legal wrong
for which the law provides a remedy.
 Defining ‘Tort’
 Winfield’s definition:
 Tortious liability arises from the breach of a duty
primarily fixed by law; this duty is towards persons
generally and its breach is redressable by an action
for unliquidated damages.
 Salmond’s definition:
 A civil wrong for which the remedy is a common law
action for unliquidated damages, and which is not
exclusively the breach of contract or the breach of
trust or other merely equitable obligation.
 Case law - definitions
Fairchild v Glenhaven Funeral Services Ltd
[2002] UKHL where Lord Bingham of
Cornhill states that :
 “the overall object of tort law is to define
cases in which the law may justly hold one
party liable to compensate another”
 Case Law - definitions
 Jai Laxmi Salt Works (P) Ltd. V. State of Gujarat,
(1994) 4 SCC 1 where Sahai, J. observes:
 “Truly speaking entire law of Torts is founded and
structured on morality that no one has a right to injure or
harm intentionally or even innocently. Therefore it would
be primitive to class strictly or close finally the ever
expanding and growing horizon of tortious liability. Even
for social development, orderly growth of the society and
cultural ‘refineness’ the liberal approach to tortuous liability
by courts is more conducive” .
 Elements of Tort
 To constitute a tort, it is essential that the
following two conditions are satisfied:
1. There must be some act or omission on the
part of the defendant; and
2. The act or omission should result in legal
damage (injuria), i.e. violation of a legal
right vested in the plaintiff.
 IS HARM OR INJURY
NECESSARY FOR AN ACT TO
BE A TORT?
The Purpose of the Law of Torts
 The purpose of the law of tort is to prohibit a
person from doing wrong to another person, and
where a wrong is done, to afford the injured
party, right of action in civil law, for
compensation, or other remedy, such as an
injunction directing the wrongdoer who is known
as a tortfeasor to stop doing the act specified in
the court order and so forth.
 Damages is the monetary compensation that is
paid by a defendant to a plaintiff for the wrong
the defendant has done to him.
 Exercise
 What do you think are the objectives of
tort law?
 A summary of the objectives of
tort
 Compensation
 Protection of interests
 Deterrence
 Retribution
 Vindication
 Loss distribution
 Punishment of wrongful conduct
II. Key Vocabulary Pertaining to
Torts:
 A. Plaintiff = who claims to have been harmed
in a civil suit
 B. Defendant = the wrongdoer in a civil suit
 If liable = forced to pay damages, usually money
 Money damages awarded = “remedy”
Tort in the context of other laws
 Tort vs Criminal
 Tort vs Contract
Discussion: O.J. Simpson Case
 Criminal Law vs. Civil Law
 A. Criminal Law = Crimes Torts
wrong committed is Wrong Wrongs
called a crime against all of against
 B. Civil Law = wrong society individuals
committed is called a
tort: Prosecuted/ Plaintiff
 Occurs when a person punished by seeks to win
damages another’s the state a judgment
person, property or
reputation.
Defendant Defendant
can go to will have to
prison pay damages
 The main purpose of criminal law is to protect the
interests of the public at large by punishing those found
guilty of crimes.
 A tort on the other hand, is a purely civil wrong which
gives rise to civil proceedings, the purpose of such
proceedings being not to punish wrongdoers for the
protection of the public at large, but to give the individual
plaintiff compensation for the damage which he has
suffered as a result of the defendant’s wrongful conduct.
 Cases involving civil and criminal remedies are not
alternative but concurrent, each being independent of
the other. The wrongdoer may be punished by
imprisonment or fine and he may also be compelled in a
civil action for tort to pay damages to the injured person
by way of compensation.
 Burden of Proof: Torts vs.
Crimes
 TORTS:  CRIMES:
 “preponderance of  “beyond a reasonable
evidence” doubt”
 More than 50% of  Can go to jail for their
evidence is in favor of acts
the winning party
 Easier to meet than
the criminal standard
 Pays damages to
those injured
 Compensation under Criminal
Law?
Under the Powers of Criminal Courts Act
1973,(UK) compensation payments are made.
Further the Criminal Injuries Compensation
Scheme 1964 makes ex gratia payments to
victims of violent crime.
See also:
In Re: Destruction of Public and Private
Properties v State of Andhra Pradesh, 2009
Indlaw SC 757 (for relation between tort and
crime)
 Tort and Contract
 Tort is a breach of a duty imposed by law. In
many instances, the parties in a tort are
previously unconnected. There is often no privity
of contract.
 A contract is a binding agreement between two
or more persons.
 Contractual duties arise from agreement
between the parties; tortuous duties are created
by operation of law independently of the
consent of the parties.
 Tort and Contract
 In case of tort, the wrong committed is a
violation of right in rem whereas in case of
contract it is violation of right in personam.
 The same facts may give rise to liability both in
tort and contract, and both in contract and tort,
the injured party is usually awarded monetary
compensation by the court.
 But tortious duties are imposed by law and
contractual duties are largely imposed by the
parties themselves.
 Tort and Contract
 Damages in contract are awarded to put
the injured party in the same position as
if the contract has been performed, and
damages in tort are awarded to put the
injured party in the position as if the tort
had not been committed.
 Examples
 Sometimes a wrongful act may be both a tort
and a breach of contract. For example:
 (i) if A has contracted to transport B’s goods and due
to A’s negligence the goods are lost or damaged. A
will be liable to B both for breach of the contract of
carriage and for the tort of negligence.
 (ii) A dentist who negligently causes injury in the
course of extracting a tooth may be liable to the
patient both for breach of an implied term in his
contract with the patient to take reasonable care and
for the tort of negligence
 Types of Tortious liability
1. Liability for intentional wrongs (fault)
2. Liability for unintentional wrongs/negligence
(no fault) and
3. Strict liability (whether fault or no fault)
 Basis of liability
 Liability in the above first two categories is based on
fault, i.e., based on the defendant’s conduct being
intentional or negligent.
 The liability in the third category is not based on fault,
intentional or negligent conduct of the tortfeasor, but
is largely strict in that it takes into D’s conduct that
caused P’s damage.
 Principles of tortious liability have been developed from
case to case and supplemented by legislation. But
neither judicial decisions nor legislation provide a
remedy for every wrong. A person can be as negligent
as he wishes if there is no duty to take care. In such
circumstances, he is not liable for any damage caused
to P by his conduct.
 Intentional Torts (fault)
 Intentional Wrong:
 acts with the intent of
injuring a person, his
or her property or both
 Ex: Allen is angry at
Bob and so he breaks
his windshield and
chokes him.
 Negligence (no fault)
 Negligence:
 Most common
type of tort
 Unintentional
 Failure to use
reasonable care
causes harm
 Ex: If a drunk
driver hits a
pedestrian…
 Negligence is a failure to avoid acts or omissions which
D could reasonably foresee would be likely to injure P.
 This general theory of liability in negligence was
propounded by Lord Atkins in the famous case of
Donoghue v Stevenson [1932] in the following words:
“You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? The answer
seems to be persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as
being so affected when I am directly my mind to the acts or
omissions which are called in question.
 See also Heaven v. Pender (1883); Union of
India v. Hindustan Lever Ltd., 1975
 Strict Liability Tort
 Strict Liability:
 engaged in an activity so
dangerous that there is serious
risk of harm even if he or she
acts with the utmost care
 Negligence or intent do not
have to be proven to
recover damages
 Strict Liability Cases:
 1. Owners of dangerous
animals
 2. People who engage in
highly dangerous activities
 3. Manufacturers of
dangerous products
 In exceptional situations, tort law imposes
liability even though D’s conduct causing injury
to P is neither intentional nor negligent.
 Such torts are largely the product of judicial
decisions. But they have been supplemented
and complemented by legislation creating new
torts, e.g., the tort of sexual harassment and
environmental torts.
 Capacity
 Who is a person?
 Human beings natural person capable of having
rights and duties
 Companies are legal persons, upon which law
confers rights and duties for legal interests and
law attributes personality by way of fiction.
 Who can be sued?
 “Deep pocket” principle: plaintiffs sue a defendant
who has enough $ to pay for the damages
 Minors = must prove child acted unreasonably for a
person of that age and experience
 b/c children don’t have “deep pockets”, plaintiffs can also sue the
child’s parents under some circumstances
 Employers = people can sue employers for torts
committed by employees
 better position to handle the costs
 can purchase liability insurance or raise prices
 Encourages employers to be careful hiring, training and supervising
employees
 Class Action
 More than one plaintiff or injured party all
injured by the same action
 These people can unify to form a “class”
 Hence, “class action” lawsuit
 Damages, if awarded, are split, among the class
 Injury arising out of an act not
recognised by law
 The wrongful act or a wrongful omission must be
one recognised by law. If there is a mere moral or
social wrong, there cannot be a liability for the same.
 Hamlyn v. More (The Schoolmasters' Case)
 D, a schoolmaster, set up a rival school to that of Ps.
 Because of the competition, Ps had to reduce their fees from 40
pence to 12 pence per scholar per quarter.
 Thus claimed the compensation for the loss caused.
 Held: Ps had no remedy for the loss thus suffered by them.