TORTIOUS LIABILITY
TORTIOUS LIABILITY
What is a tort?
The word ‘tort’ has originated from a Latin term called ‘tortum’, which means ‘to twist something’. Thus, “tort” refers to a conduct that is not straight or lawful, but twisted, crooked or unlawful. It is similar to the English word ’wrong’. The Law of Torts includes various ‘torts’ or unlawful acts where the wrongdoer violates a legal right of another person. The law imposes a duty on everyone to respect the legal rights of all the members of the society and the person committing a breach of this duty will be liable for the tort committed by him/her.
The law of torts is that branch of the law which deals with obligations;
- Where the legal obligation is of refraining from harm to another and,
- If the harm is done, then there’s an obligation to repair it or compensate for it.
Legal obligations are imposed not by agreement, but independently of agreement by force of the general law. The purpose of the law of torts is to transfer the loss suffered by one person to another person who is responsible for its happening.
Tortious liability
In earlier times, there was no general principle of tortious liability, but the Court of the King used to give remedies for various wrongful acts committed such as trespass (for direct injuries), and later allowed to take action on the case for the harm which was indirectly caused. Other forms of wrongful acts later became redressible, such as libel and slander, and various forms of actions were also developed to redress particular kinds of harm. So, now the law of torts is concerned with a number of recognized types of wrong, each with specific requirements and procedures attached to it. Case-law has extended liability, for example, from physical injuries to mental injuries, and from intentional harms to harm done negligently, etc. The law of tort consists of various circumstances in which the court gives a remedy to the victim by way of damages, for wrongful act committed by one person. It is really confusing to connect tort with other wrongs, as the wrongful element in tort consists only of a breach of legal duty, which may be technical and may not involve any moral delinquency or criminality.
Tortious Liability depends on the defendant who by committing an act or omitting an act, committed breach of a legal duty imposed on him and at the same time violated a legal right of the plaintiff and hence the plaintiff has suffered some kind of harm. However, every harm done is not actionable; one can escape liability in case of an inevitable accident, or an act of God, etc.
In Law of Torts, the rule of vicarious liability also applies; common intention is also considered; and joint tortfeasors are liable for the whole harm caused to the victim. If the plaintiff was himself wholly or partly responsible for the damage which is caused to him (contributory negligence), damages awarded may be reduced in proportion of which he was in fault.
Conditions for tortious liability
To constitute tortious liability, it is important that the following two conditions are satisfied-
- There must be some act or omission on the part of the defendant, and
- The act or omission should result in legal damage i.e., violation of a legal right vested in the plaintiff.
Act or Omission
In order to make a person liable for the tort committed by him, he must have committed some act which he wasn’t supposed to do, or, he must have omitted some act which he was supposed to do. So, a person will be liable if he commits a wrongful act or omits an act which was his duty to perform. When there is a legal duty of a person to do some act and that person fails to do that duty then he is liable for such omission.
Illustrations
- A commits the act of trespass,
- A publishes a statement defaming another person,
- A wrongfully detains another person;
Then he can be made liable for trespass, defamation or false imprisonment, as the case may be.
- If a corporation, who has a legal duty to maintain a Public park, fails to put proper fencing to keep the children away from a dangerous tree and a child plucks and eats the fruits of that tree and subsequently dies, the Corporation is liable for such omission.
Legal Damage
In order to make a person liable for tort, the plaintiff has to prove that there a legal damage has been caused to him. Basically, he has to prove that a wrongful act has occurred and it has caused breach of a legal duty on the part of defendant or it has violated a legal right vested in the plaintiff. There can be no action unless violation of a legal right has occurred.
Ashby v. White is a leading case explaining this. In this case, the plaintiff succeeded in his action, even though the act committed by defendant did not cause any damage. The plaintiff was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully declined to take plaintiff’s vote. No damage was suffered by such decline as the candidate for whom he was going to vote won the elections. It was held that the defendant was liable as legal right of the plaintiff was violated.
Another case is of Gloucester Grammar School Case explains the point.
Here, the defendant, a school teacher, set up a rival school near the school of the plaintiffs. Due to the competition, the plaintiffs had to reduce their fees by a significant per cent. It was held that the plaintiffs have no remedy for the loss suffered by them as their legal right was not violated.
Mental Element in Tortious Liability
Mental element is a very important element in almost all forms of crime. Under criminal law, act of a person as well as mens rea or a guilty mind has to be proved to create his liability. A man, is not punishable for something which he never intended to do, or the consequences of which he could not foresee. It is quite difficult to make any such generalization about liability in tort. The position under the law of torts is as follows:
Fault when relevant
In many of the torts like assault, battery, false imprisonment, deceit, malicious prosecution and conspiracy, the state of mind of a person is relevant to make him liable. Sometimes, we compare the conduct of the defendant with that of a reasonable man and make him liable only if his conduct falls below the standard expected of a reasonable man. When the circumstances demand care and a person fails to perform the duty to take care, he is liable for the tort of negligence. On the other hand, if the defendant has taken such care as was expected from him, he is not liable for the damage to the plaintiff.
Liability without fault
There are certain situations where the mental element is irrelevant and the liability arises even without any malafide intention or negligence on the part of the defendant. In such cases, innocence of the defendant or an honest mistake of the defendant is no defence. Tort of conversion is an example. Hence, when an auctioneer, who sells goods, under an authority from a customer having no title to the goods, is liable for conversion, even though at the time of sale he honestly believed that, customer was the true owner. Another case is of defamation, where the defendant is liable even when he didn’t have any intention to defame but his act turns out to be defamatory.
The trend
The recent trend is to shift the liability on those people who can bear it or those who can pass the loss on to the public. Lord Justice Denning very well says that the “recent legislative and judicial developments show that the criterion of liability in tort is not so much culpability, but on whom should the risk fall?” In India, there are various enactments like the Fatal Accidents Acts and Workmen’s Compensation Acts which have provisions for compensation to the victims without going into the question of fault. The motive behind this is that those who are made to pay compensation are
- Considered to be in a better position to bear the burden, or
- In such a position that they can pass the loss on to the public in the form of higher charges for their services or the products.
For example, due to increase in the number of road accidents, it is compulsory for every person using motor vehicle to get an insurance policy indemnifying him for any liability incurred by him i.e. personal injury or death of the victim of the road accident. This ensures compensation to the tort victim even though the person driving the vehicle does not have his own means to pay the compensation.
