Nature of Tort

1.What is a tort?
❑ Tort is the French equivalent of the English word “wrong”/ Roman word-delict. ❑ Tort is
derived from the Latin term, “ tortum”- which means to twist and implies conduct that is twisted
or tortious.

❑ First reported use of the word was in the case of Boulton v. Hardy (1597). ❑ Means a breach
of some duty independent of the contract, giving rise to a civil cause of action and for which
compensation is recoverable.

❑ Basic underlying principle of tort law is that no one should be harmed by the acts of other.
There is a duty of care towards everybody which is implied imposed by law. ❑Winfield:
“Tortuous 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.”

❑ Sir John Salmond: “Tort as a civil wrong for which the remedy is 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.”

❑ That civil injury for which no action for damages can be brought is not a tort. ❑ Person
committing a tort is called a tort-feasor or a wrong doer.

❑ The act is: tortious act.

❑ Aim of torts is compensation/damages and in some cases exemplary damages can be awarded.

❑ In India: Section 2 (m) of the Limitation Act,1963 "tort" means a civil wrong which is not
exclusively the breach of a contract or the breach of a trust.

❑ Pigeon Hole Theory [ Supported by Salmond and Pollock- not by Winfield] Approved in
Allen v. Flood. … criticise?

Characteristics of Tort
1. A tort is a civil wrong. Civil wrongs can be breach of contract, breach of trust and tort.
Former have statute, latter does not.
2. Tort is an infringement of right in rem. Available against the world at large, against persons
generally. Opposed to right in personam: against specific persons.
3. There must be violation of a legal right: there must be injury
4. Common law action: in England common law action, India civil suit.
5. Remedy: damages/ money.
Difference between contract and tort
TORT CONTRACT

• Terms of contracts are now imposed upon the parties by numerous statutes, quite independently
of any ‘agreement’, and indeed, the notion of true agreement has long been discredited in many
contractual situations, since few individual consumers have real bargaining power.
• Moreover, it is possible for the parties in tort to arrive at agreement to vary the tortious duties
which the law imposes.
Tort and Criminal Law
•The same fact situation, for example, a road accident, may give rise both to criminal
prosecutions and to tort actions. Tort, as part of civil law, is concerned with actions by private
individuals against other individuals or legal persons.
•Criminal law is concerned with prosecutions brought on behalf of the state for breaches of
duties imposed upon individuals for the protection of society.
•Criminal prosecutions are dealt with by criminal courts, and the standard of proof is more
stringent than in civil cases. The consequences of a finding of criminal guilt are regarded as more
serious for the individual concerned than are the consequences of civil liability.

Tort and Crime

1. Max sells heroin to Jack.
2. Stevie, not looking where he is going, pushes Mrs. Fry down.
3. During an argument, Lucy slaps Bethy in the face.
Constituents of Tort
1. Wrongful Act
2. Damage means the harm or loss suffered or presumed to be suffered as a result of the
wrongful act. [ Injuria sine damno and damnum sine (or absaque) injuria) Rights can be Absolute
or qualified.

❑ Absolute: Actionable per se: the moment right is violated. e.g. slander [speech] or trespass.

❑ Qualified: Proof of actual and special damage is needed.

3. Remedy •Law of tort is said to be a development of the maxim, “Ubi jus ibi remedium”. There
is no wrong without a remedy.

❑ Jus: legal authority to do or demand something.

❑ Remedium: Right of action or means given by law. The maxim does not mean that there is a
legal remedy for every moral and political wrong. But that whenever a man has a right the law
should provide a remedy and the absence of remedy is EVIDENCE but not conclusive that there
is no right. [Abbot v. Sullivan (1952) 1 KB 189.]

Some General Elements/Terms in Tort

1. Act and Omission •Act includes both positive and negative act. •Different from natural
occurrences beyond human control. • Mere thoughts and intentions are not tort. • Failure to do
something in doing an act is not an omission but bad way of performing. E.g. lawyers opinion.
•An omission is a failure to do an act as a whole. •An omission incurs a liability when there is a
duty to act. E.g. drowning child.
2. Voluntary and Involuntary Acts An involuntary act generally does not give rise to any
liability.
3. Mental Elements •A voluntary act [except strict or absolute liability] requires a mental element
to fix liability. •This mental element could be malice, intention, negligence, motive or
recklessness.
MALICE •General meaning: ill-will and spite. •Legal Meaning: i. MALICE IN LAW:
Intentional doing of a wrongful act without just cause or excuse. [Here Malice=Intention]

❑ A wrongful act done knowingly and with a view to its injurious consequences may be called
malicious. Such act should be intentionally done and must constitute a violation of law.
❑ Intentional wrongful doing is known as MALICE in LAW [ An act done wrongfully without
reasonable and probable cause and not an act dictated by angry feeling or vindictive motive.]
• Malice in Law is IMPLIED MALICE when from the circumstances the law will infer malice.
II. MALICE IN FACT i.e. improper motive also known as Express Malice or Actual Malice. e.g.
Malicious Prosecution Motive is the ulterior object or purpose of doing the act. Intention relates
to immediate objective; motive relates to ulterior objective. Motive refers to some personal
benefit or satisfaction unlike intention. e.g. A poisons B and the immediate objective is to kill to
B. So, this is A’s intention. A’s ulterior motive may be to get his property so that is ulterior
objective. Find out whether motive is required in Tort or not? •Intention is an internal fact. An
act is intentional as to the consequences if the person concerned has the knowledge that they
would result and also desire that they should result.
• Negligence: Consequences are not adverted to, though a reasonable person should have
foreseen them.
•Recklessness: Consequences are adverted to though not desired and there is indifference
towards them and willingness to run the risk.
•Motive is the ulterior objective.
•Malfeasance: Commission of an unlawful act, generally actionable per se like trespass.
•Misfeasance: Improper performance of a lawful act with negligence.
• Non-feasance: Omission to perform an act when there is an obligation to perform.
Cases 1) Ashby v. White (1704) 2 Lord Raym 938 [Injuria Sine Damnum] 2) Mayor of Bradford
Corpn. v. Pickles (1895) AC 587 [Damnum Sine Injuria] 3) Gloucester Grammer School Masters
case (1410) Y.B. 11 hen. IV of 47 [Damnum Sine Injuria]

REMOTENESS OF DAMAGES
Meaning
• There would be manifest injustice if a person were held responsible for all consequences
of his act which in theory may be endless.
• A person, therefore, held responsible in law only for consequences which are not remote.
• No person can be made liable ad infinitum for all consequences which follows his
wrongful act.
• In jure non remota causa sed proxima spectatur
• In law, the immediate and proximate, not the remote cause must be considered.

• EXAMPLES
 I. A threw a lighted cracker in a crowed market. It fell on B’s shop. C was standing nearby.
To save himself and B’s shop too, C threw the cracker away. It the fell on D’s shop. D in
his turn, threw it away which then fell on E who became blind. Decide who is liable to E?
II. The defendants seized the plaintiff’s cow on the ground that it had trespassed the
previous day into their cotton plantation and refused to give it up. The cow while in their
custody suddenly died. The plaintiff sued for the value of the cow. It was held that the
death of the cow was not a natural and probable result of the seizure and detention and
defendants were therefore not liable.

The defendant who was a cyclist negligently hits a pedestrian. Incidentally, the pedestrian
happened to be carrying a bomb. And due to the negligence of the defendant, the pedestrian
falls and the said bomb explodes, resulting in the death of that pedestrian. Now, due to the
explosion of the bomb, a nearby building catches fire and five of its residents die. As a
result of the fire, the building collapses and nearby structures are destroyed, resulting in 20
more deaths. Further, the destruction of nearby shops results in pecuniary losses to the shop
owners.

Such a situation creates question for assigning blame. Even if the Court were of the opinion
that the defendant was to be blamed for the death of the pedestrian, would the Court also
unhesitatingly place the same amount of the blame on the defendant for the death of the
other 25 people?

I. The problem is also explained by Lord Wright, to some extent, in the case of Liesbosch
Dredger v. S.S. Edison

• “The Law cannot take account of everything that follows a wrongful act; it regards some
subsequent matters as outside the scope of its selection, because it was infinite of the law
to judge the causes of causes, or consequences of consequences. In the varied web of affairs,
the law must abstract some consequences as relevant, not perhaps on grounds of pure logic
but simply for practical reasons.”

• To answer such questions, jurists propose that a defendant should be made responsible only
for the consequences which were proximate (and not remote) consequences of the
defendant’s wrongful act.
Different Views
• Towards the middle of the 19th Century, two competing views were advanced as laying
down the tests of remoteness.
i. Test Of Directness ii. Test of Forseability

Test of Directness- Leading Authority

In Re an Arbitration between Polemis and Furness, Withy & Co. (1921) 3 KB 560.
Brief Facts

• While discharging cargo from a ship, a wooden plank fell causing a spark to ignite the
petrol that the ship carried. The resulting fire destroyed the ship.
• The defendants charted the plaintiff’s ship, the Polemis, to carry a cargo which contained
a quantity of Benzine or Petrol.
• Some of the petrol cases leaked on the voyage.
• While shifting some cargo at a port, the servants employed by the charters negligently
knocked a plank which fell down causing a spark, which ignited the vessel, resulting in
complete destruction.

• HELD: The charters were liable for all, as the fall of the board was due to the
negligence of the charterer’s servant and was direct consequence of the negligent act
including destruction of the ship even though those consequences could not have been
reasonably anticipated.
• According to this case, once the tortious act is established, the defendant is held liable for
all damages which in fact is directly traceable to the negligent act and not due to
independent causes having no connection with the negligent act.
• The liability for damages is not restricted to foreseeable damages but extends to all
damages directly traceable to the negligent act.
• It is not necessary that the event which is immediately connected with the consequences is
proximate and that farther from is too remote.

• Scott v. Shepherd 17 W.BI. 892 (The Squib Case)

• In this case, a person A threw a lighted squib into a crowd. The squib fell on a person B.
B, in order to prevent injury to himself, threw that squib further. It landed on another person
C, who in turn threw it further and it finally exploded on a person D, thereby injuring him.
As a result of the explosion, D lost one of his eyes.
• In this case, A was held liable to D. Although one would say that his act was ‘the farthest
from the injury to D’, his act was held to be a proximate cause of the injury to D.

• Haynes v. Harwood ( 1935) 1 KB 146

• In case, the servants of the defendant, owing to their negligence abandoned a horse van on
a crowded street. The street had children and women. Some children pelted stones at the
horses, as a result of which the horses bolted and started posing a threat to the safety of the
people in the street. In order to stop the horses and to rescue the women and children, a
policeman (the plaintiff here) suffered injuries himself.

• In a lawsuit brought by the plaintiff against the defendant, one defence pleaded was that of
novus actus interveniens (remoteness of consequences).

• Again, in this case, the Court held that novus actus interveniens was not a valid defence
and that the negligent act of the defendant’s servants leaving the horse van unattended as
the proximate cause of the injury suffered by the plaintiff.

• Lynch v. Nurdin (113 E.R. 1041)

• This case is similar to the previous one to a certain degree. Here, the defendant left his
horse-cart unattended on a road. Some children began playing with the said horse-cart. One
child sat on the cart (the plaintiff) and another set the horse in motion. Consequently, the
child suffered damage and an action was brought.

• In this case too the defence of novus actus interveniens was pleaded. But again, it was held
by the Court that the injury to the plaintiff was a proximate consequence of the defendant’s
act and hence he would be held liable to the plaintiff.

Novus actus interveniens

 Novus actus interveniens is a Latin maxim which literally means “new intervening act”.
It refers to a new act that takes place independently after the defendant has concluded his act and
contributes to the resulting harm. What Novus actus does is that it breaks the continuous series of
action between the offender’s conduct and the resulting injury. Hence, it helps the wrongdoer to
escape or limit the liability arising from the final outcome.

• An essential condition for an act to be novus actus is that such an act must not have been
reasonably foreseeable by the defendant. If the intervening act is found to be reasonably
foreseeable at the time of the defendant’s act, then it would not be considered a novus actus.
A novus actus may either be an act of the injured person himself, or an act of third party,
or an act of God, but it could never be an act of the wrongdoer himself. Thus, if a person
dies due to lightning over him after he was injured by the defendant, a Novus actus gets
created by the act of god in such a case.