Law of Torts

'Tort' essentially means a 'wrong' and originates from the Latin word 'tortum', which means 'twisted' or 'crooked'. In law, tort is defined as a civil wrong or a wrongful act, of one, either intentional or accidental, that results in the injury or harm to another who in turn has recourse to civil remedies for damages or a court order or injunction.

The definitional features of tort are that it is a civil wrong as distinguished from criminal wrong; both the procedures and remedies are different in civil law and criminal law. In a criminal case, the state initiates legal proceedings in a criminal court on behalf of the victim and is punished when found guilty by the court. A civil action, like the tort suit, is pursued in a civil court where the victim or victim's representatives or survivors prosecute the wrong-doer usually for compensation in the form of money payment and also at times for other liability or injunction.

Generally, tort cases result in compensating the victim and criminal lawsuits are about punishments. Injunctions are court orders that, for example, may prohibit the wrong-doer from harming the victim or prevent the former from trespassing the latter's property. Occasionally, courts may also grant punitive damages, which are costs or damages in excess of the compensation.

Tort can be intentional or accidental and include wrongful acts of the kinds of battery and assault (physical or mental injury to the claimant), nuisance (intrusion with one's enjoyment), defamation (where claimant's reputation is injured), property damage, trespass (to claimant's land or property), negligence (careless behavior), and others. These wrongs may also have aspects and overlaps with other areas of law like the criminal law and the contract law.

Sources of Tort Law - common law versus statute law

Torts are mostly a common law subject; it is common law in the sense that tort law or the rules of tort law developed not from a statute or an act passed by the Parliament, but from centuries of judicial decisions - case by case in English courts as well as in courts of other countries following common law system like India and the United States of America.

In other words, for example, in India, both criminal law and contract law are based on statute laws like the Indian Penal Code and the Indian Contract Act respectively; however, there are no statutes that comprehensively deal with tort law as a separate area of law. A contract lawyer would look up the Contract Act to look for rules to be applicable in a given fact situation. A tort lawyer would look for rules as developed by courts in similar cases.

However, there are couples of areas of tort law where countries have enacted statute laws. In India for instance, automobile accidents as well as harms caused to consumers of goods and services are covered by the Motor Vehicle Act of 1988 and the Consumer Protection Act of 1986 respectively. What this means is that if a case involves a car accident or injury due to defective products or deficiency in services the set of rules of the respective statutes apply.

Kinds of Wrongful Acts

In tort cases, the victim or the claimant claims that the defendant or the wrong-doer has conducted the wrongful act or is liable for injury incurred by the claimant. Primarily, there are three kinds of wrongs in tort law - the wrongful acts can occur either intentionally or negligently on part of the wrong-doer, or the defendant is strictly liable for the wrongful act.

1. Intentional Tort

An intentional tort requires the claimant to show that defendant caused the injury on purpose. Furthermore, the claimant must show that he or she suffered a particular consequence or injury, and that the defendant's actions caused the consequence or injury. Different intentional torts deal in different consequences and intents. So depending on the contexts and situations, there are various kinds of intentional torts - assault, battery, false imprisonment, unlawful harassment, invasion of privacy and so on. These may also have aspects of criminal law, but treating them also as torts increases the possibility of higher compensation.

Battery and Assault: The intentional tort of battery occurs when the defendant causes the touching of the claimant with the intent to cause harm or offense. Both 'intent' and 'causation' are required for the tort of battery to occur. For example, if the defendant intends to commit battery by hitting the claimant in the head but ends up killing him, this amounts to battery as his intentional act (intention to commit harm) caused the death. The act of touching doesn't necessarily have to be done with defendant's fist always, it could be anything touching plaintiff like throwing hot water at someone.

The intentional tort of assault occurs when the defendant intends to cause in the claimant a reasonable apprehension (feeling of anxiety or fear) of an imminent harmful or offensive touching to the claimant; and when this causes the claimant to suffer a reasonable apprehension of an imminent harmful or offensive. In other words, assault is when the defendant intends to make claimant think that he is about to suffer a battery and as a result the claimant does think that he is about to suffer a battery.

Imminent means imminent and "in your face"- assault is about thinking that you are about to be touched. For example, if the defendant throws an iron ball at the claimant and misses his head as the claimant moves his head away from the direction of the iron ball, this amounts to assault. The perception of the claimant is important. So if the defendant points an unloaded gun at the claimant who does not know that it is unloaded and he thinks he is about to get shot, this amount to assault, which can take place without battery. Likewise, battery can take place without assault; for example, someone may hit another person from behind.

False Imprisonment: The intentional tort of false imprisonment is satisfied whenever there is intent to unlawfully confine or restrain the claimant in a bounded area and when this actually causes the claimant to be knowingly confined or restrained in a bounded area unlawfully. For example, the defendant intentionally locks the claimant in the classroom without having the legal authority to do so, and the claimant knows he is trapped.

Sometimes courts allow the actual harm to substitute for the awareness of the imprisonment - so even if the claimant is unaware that he is trapped but suffers injury, the tort of false imprisonment is satisfied. However, the claimant should not be trapped willingly and consensually.

Trespass to Land: The tort of trespass to land occurs when the defendant has the intent to physically invade real property of the claimant and does invade physically without the claimant's approval or consent. The invasion can happen with objects or by people and includes invasion of some area of air above the land and some area below the land. For example, the defendant may litter the claimant's land, or may create a drainage outlet below the land of the claimant.

Trespass to Chattels: When the defendant has the intent to use or intermeddle with a chattel (moveable personal property), which was in the possession of the claimant and when this actually happens and causes significant or perpetual dispossession, deprivation of use, or damage as to condition, quality, or value of the chattel, or causes some other harm to claimant's legally secured interest, it amounts to the trespass to chattels. For example, if the defendant paints the car of claimant that was parked on the side of the street, without the consent of the claimant while the claimant was away, this amounts to trespass to chattels.

Conversion: The tort of conversion is somewhat related with the tort of trespass to chattels. Conversion occurs when the defendant intentionally uses or intermeddles with the chattel of the claimant in such a serious way that it becomes fair to ask for compensation or money payment for the total prior value of the chattel. In other words, the defendant is forced to buy the chattel for a purchase price based on the original value. So the remedy in conversion is forced sale. Conversion is applicable in many situations including where the chattel is taken, transferred to someone else, changed, misused or damaged.

Unlawful harassment: Defendant may be held liable for any act of deliberate physical harm to the victim even where no battery or assault is involved. For example, if the defendant lies to the claimant that the latter's son met with a road accident, which causes nervous shock to the claimant resulting in illness, this constitutes tort of unlawful harassment.

Sexual harassment may also amount to tort of unlawful harassment. For example, if one follows another person, sends unwanted messages or phone calls; although there is no violence or threat of violence involved, this act amounts to a tort of harassment.

Invasion of privacy: Tort law with respect to invasion of privacy as a distinct entity is still underdeveloped. However, as many academics hold the view, there is potential for the development of tort of invasion of privacy. For example, one's right to personal life and family may fall under this category of tort law and may attract any deliberate invasion of privacy like, photographing the personal lives of the claimant without the latter's consent.

2. Negligence

The basic understanding of negligence is that wrong-doer or the defendant has been careless in a way that harms the interest of the victim or the claimant. For example, when the defendant carries out an act of constructing something on her premises, she owes a duty of care towards the claimant and that the standard of duty of care depends on whether the claimant was on the site or in the neighborhood as well as whether the claimant was a lawful visitor or a trespasser.

Generally, in order to argue successfully that the defendant has been negligent, the victim or the claimant must establish three elements against the defendant in a tort of negligence case:

1. the defendant owes a duty of care to the victim
2. there has been a breach of duty of care on part of the defendant
3. the breach of the duty to care resulted in the harm suffered by the claimant

Duty of Care: The duty of care principle can be explained by citing an actual case law. In a 1932 English case of 'Sonoghue v Stevenson', the claimant Donoghue drank a soft drink manufactured by the defendant Stevenson. The drink had a decomposed snail in the bottle that made the claimant ill. The court held that the manufacturer owed duty of care to those who are 'reasonably foreseeable' to be affected by the product.

So the duty of care is owed to those whom one can reasonably foresee as being potentially harmed. This principle is applicable to numerous fact situations; as another example, a landlord owes a duty of care with reasonable foresight to his tenants and should ensure that no hazardous substance like petrol is stored by him in the basement of the apartment being dwelt by the tenants.

Breach of Duty of Care: Once the duty of care is proven the claimant then must establish that the duty of care was broken; i.e., the defendant was unsuccessful in fulfilling the duty of care in accordance with the standard of 'reasonableness'. The standard is that of 'reasonable conduct' or 'reasonable foresight', however, the act need not be flawless.

In the case of 'Donoghue v Stevenson', the court held that the manufacturers of products owe a duty of reasonable care to the consumers who use the products. Similarly, the standard of duty of reasonable care will vary based on the peculiar fact situation of every case.

Harm to the Claimant: In the case of 'Donoghue v Stevenson', the negligence on part of the manufacturer of the soft drink resulted in the illness or injury to the claimant. In the second example, the apartment catches fire because of petrol being stored in the basement causing damage to the tenants.

3. Strict Liability

Strict liability torts do not care about the intention or carelessness of the defendant when the defendant caused the injury. The claimant does not have to establish any sort of or level of blame attributable to the defendant based on the intention or the degree of carelessness. Strict liability is available in a very limited context.

For example, where the defendant's animals may cause an injury to the claimant or where the defendant is involved in an unusually hazardous activity like blasting dynamite. If the defendant possesses an animal with a known and unusual dangerous tendency, say a dog that bites, the defendant is strictly liable for the harm resulting from the dangerous tendency of the dog. But in the case of the defendant possessing a bull that harms the claimant is not strictly liable as the act of the bull is considered as, not unusual, rather a normal dangerous tendency.

The general rule with respect to ultra-hazardous activity is that when the defendant carries out or keeps an unusually hazardous situation or activity on his or her building or involves in an activity that offers an inevitable danger of injury to the claimant or his or her property, the defendant could be responsible for the damage caused even if the defendant has exercised reasonable care to prevent the harm.

In India, a related principle of Absolute Liability was introduced by the Supreme Court in the aftermath of the two instances of gas leaks from factories injuring many. The first case was about the infamous Bhopal gas leak disaster of 1984 where a factory of the Union Carbide Corporation located in Bhopal had a major leakage of the gas mythyl isocynate that killed 2260 and injured around 600,000 people. In the second incident of 1985 in Delhi, a factory of the Shri Ram Foods and Fertilizer Industries leaked oleum gas that killed one person that had few others hospitalized and created huge panic among the residents.

The then Chief Justice of India P.N Bhagwati, in the famous 1987 case of M.C. Mehta v. Shri Ram Foods and Fertilizer Industries, held: "We are of the view that an enterprise, which is engaged in a hazardous or inherently dangerous industry, which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to any one on account of hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm is done on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part."

Summary of the Kinds of Harms

Property interests in land: The law of tort protects the claimant's interests in her landed property by preventing intentional intrusions or trespass of the property by the defendant or the wrong-doer. The claimant may also suffer harm by the damage caused due to careless or negligence of the defendant. When the defendant interferes with the claimant's right to enjoy his/her land, the defendant commits the tort of nuisance.

Other types of Property: Tort law prohibits taking away of tangible property deliberately, which amounts to the tort of 'conversion'. The damage to the property may also occur due to carelessness or negligence.

Bodily Injury: Tort law protects the claimant against any harm to his/her interests of bodily integrity. Tort of battery and assault applies to any intentional harm caused to the body. Harm may also be caused by negligence as well as any breach of statutory duty like, traffic laws, health laws and so on. Mental distress is an element in bodily injury which raises any compensation to the victim.

Economic Interests: To a lesser extent, the economic interests are also protected by the law of tort. Injury caused by both intentional as well as negligence can cause economic harm to the claimant.

Purpose of Tort Law

Three important objects of tort law are - deterrence, fair and just response, and loss spreading.

1. Deterrence: Tort law ensures that the defendant compensates the victim for a wrongful act. This deters one from injuring others as it encourages defendants to be mindful and careful.

2. Fair and just: Tort law ensures that the victim is compensated by the response defendant to satisfy the demands of justice. The defendants are made liable for their wrongful act.

3. Loss-spreading: Tort law can be used as a tool to spread loss to a wider community. For example, where the manufacturer of a product has to pay compensation, the manufacturer may recover the costs by transferring this to the consumers by increasing the price of the product. In another example of automobile insurance, all drivers are required to pay auto insurance premiums, which are then used by the insurance companies to compensate the victims.