Frankly speaking the first time I heard this word was 8th April, 2010-the first day at my LST Express coaching! And I guess most of the CLATGyan users came across it during their Law entrance preparation. Sounds so Greek!….though its roots are in Old French where it means ‘wrong’ and in Latin tortum means ‘twisted’. It’s strange how a simple term like this takes so much time to register in our brains. We are not to be blamed though. It’s the judges and legislatures who never gave a comprehensive definition and end up giving ad-hoc explanations for the same. Great law persons like Fraser give us fancy definitions like “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”. Similarly Mr.Winfield says “Tortious liability arises from the breach of duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”.
No offence to these honoured dignitaries but I don’t feel any layman can understand this kind of terminology. And it is unfair to expect school pass outs to be familiar with it as well (unless they have law people around them!).
After so much of my blabbering you must be wondering what exactly is torts then. It is the branch of law to which each and every one of us is connected. You are going around a place and you slip on a soapy floor due to the callousness of the attendants of that place (Negligence!!) (I actually slipped once while going around the Dolls Museum in Delhi but didn’t quite know it was tortious).
See since we are living in a civilized society (to say the least) it is natural that a social life comes with certain rights and privileges. That is to say that no one has the authority to enter your house without your permission or punch you in your nose without any fault of yours (Trespass that is). So each person is one’s own master and has full rights to lead life in whatever way he or she wants without any disturbance or interference of any sort. In case your neighbour is playing loud music at twelve in the night or throwing garbage in front of your compound you can sue him RIGHTFULLY under the amazing branch of law known as torts!( by the way this is Nuisance). We have all rights so long our activities do not interfere with other’s enjoyment of rights. Hence rights are always accompanied by duties. In short we all have certain rights but also duties at the same time in order to safeguard other’s rights. And these duties are legally enforceable just as the rights are legally protected.
Now what tort law does is basically provides us a solution if our civil rights have been violated or interfered with i.e. to give a legal solution for the infringement of our legal rights. The action which causes the injury is called tort.
You must now be wondering what a legal right is. See law cannot take responsibility for each and everything that goes wrong in your life. Courts would obviously not be interested in tackling your love affairs, issues of moral rights or catfights between siblings. It is only the legal rights which law promises to uphold and remedy its violation. So the basic civil rights essential for a healthy and dignified survival like protection from
- personal injury such as automobile accident, slip and fall, dog bite,
- medical malpractice( surgeons leaving knives etc in your body, stealing & smuggling body organs),
- defect in either manufacturing or design of product,
- wrongful death: survivor recovers economic value of remainder of decedent’s life,
- patent/copyright infringement,
- defamation (anything which ridicules or lowers the esteem and reputation of a person in public) ,
- intentional wrongs against a person: assault, battery, false imprisonment, intentional infliction of emotional distress, and,
- wrongs against one’s property,
constitute rights in the legal sense. A line has to be drawn somewhere and law redresses only legal injuries. Any injury to your legal right is actionable and the court will provide a solution in the form of an action for damages.
Damages here basically imply a monetary award for both the tangible and intangible losses caused by the tort though at times it may assume the form of an injunction (A court order that orders a party to do or refrain from doing certain act!), restitution or self-help.
Once a tort is committed and your rights have been violated a plaint is filed by you. So the victim here is called the plaintiff. The person who has committed the tort becomes the defendant. Such a person is also known as a tortfeasor.
Now for the plaintiff to get damages for the tort, a few things need to be proven in the court-
- Plaintiff has the legal right (or a legal duty existed on part of the tortfeasor)
- Infringement of the legal right (or breach of the duty)
- Causation (Breach caused an injury which may both be a direct or proximate consequence of defendant’s act)
- Injury ( Need not just be physical or financial but may be emotional as well. But most importantly it must result from violation of a legal right)
Once this has been proved the plaintiff gets the necessary remedy i.e. unliquidated damages (it simply means that the monetary award is not fixed and varies from one tort to other) or as the case maybe an injunction or restitution.
Friends this was just a basic introduction to the magnanimous branch of law known as torts. There is more to it like the kinds of torts, various defences or justifications to torts etc. I’ll soon come up with an article elaborating on the same. Hope you understood it and will be more charged up to enter the super amazing field of law!
PS: I left B.A. Economics (Hons.) at St. Stephens College and SRCC, DU just because of torts. Although law on the whole excited me but Torts had its special importance in helping me decide which way to go!
Next in this series : Torts – Summarized