Nature and Definition Tort By Jayashree Roy
Nature of Law of Tort:- It is a system of laws, which enables a person who has suffered harm or injury by the acts of another, make claim damages in a civil suit. The essential nature of the law of torts is that it is not codified like statute laws. There is very little legislation in the area of tort in India. . In recent times, some parts of the law of torts have been codified, viz. The Workmen's Compensation Act, The Employers Liability Act, etc
Definition of Tort:- The French word that has been derived from the Latin term 'Tortium' which means to twist. .A tort is a violation of a right of a person / breach of duty by one person towards another.
Some of the definitions of 'Tort are:- Salmond- It is 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 a trust or other merely equitable obligation. Fraser- "It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party."
Winfield- "Tortious liability arises from the breach of a duty primarily fixed by the law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages." Lord Denning- "The province of tort is to allocate responsibility for injurious conduct."
A Law of Tort or Law of Torts: There are two theories with regard to the basic principle of liability in the law of tort or torts:- 1. All injuries done by one person to another are torts, unless there is some justification recognised by law. 2. There is a definite number of torts outside which liability in tort does not exist (Winfield)
Law of Tort (1st Theory: . All unjustifiable harms are tortious. This theory resembles the moral saying, "my duty is to hurt nobody by word or deed". It is in consonance with the principle, ubi jus ibi remedium (where there is a right there is a remedy) Winfield and Pollock supports the first theory.
Law of Torts (2nd _Theory:- According to the second theory, it consists of a neat / clear set of pigeon holes each containing a labelled / specific thought like assault, battery, false imprisonment, slander, etc. This theory is supported by Salmond His book is called the Law Of Torts. Decisions such as Donoghue vs Stevenson show that the law of tort is steadily expanding and the idea of its been cribbed, cabined and confined in a set of pigeon holes is untenable.
Interests Protected by the Law of Torts:- 1. Personal and proprietary interest 2. Reputation - libel and slander 3. Interests in economic relations- conspiracy, passing off, deceit, etc 4. Interests in family relations e.g. Extent to which 5. Interference with judicial process - malicious 6. Miscellaneous interest e.g. Right to vote. the parents miss you in respect of injuries to their children. prosecution
Distinction between Tort and Crime:- Tort is a private wrong, while a crime is a public wrong There are various wrongs, which find their place both under criminal law and law of torts. In such cases, for the purpose of civil liability, the rules of law of torts will be applicable and for the purpose of criminal liability the rules of criminal law will apply.
Advocate, Calcutta High Court B.Com (Accounts hons.) LL.B (Enrolled Lawyer) Masters of Law (LL.M) Judicial Service Aspirant. Youtuber