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TORTS

The term tort is the French equivalent of the English word wrong and of the Roman
law term delict. The word tort is derived from the Latin word tortum which means
twisted or crooked or wrong and is in contrast to the word rectum which means
straight. Everyone is expected to behave in a straightforward manner and when one
deviates from this straight path into crooked ways he has committed a tort. Hence tort
is a conduct which is twisted or crooked and not straight. As a technical term of
English law, tort has acquired a special meaning as a species of civil injury or wrong.
It was introduced into the English law by the Norman jurists.

Tort now means a breach of some duty independent of contract giving rise to a civil
cause of action and for which compensation is recoverable. In spite of various
attempts an entirely satisfactory definition of tort still awaits its master. In general
terms, a tort may be defined as a civil wrong independent of contract for which the
appropriate remedy is an action for unliquidated damages

CHRACTERISTICS OF A TORT

It is a civil wrong in legal right of a person is violated or there is a breach of duty towards
him.

It is different from a breach of contract or a breach of trust.

It is redressible by a civil action for damages, and such damages are unliquidated.

In an action for tort, it is not necessary that the plaintiff must have suffered any pecuniary
damages due to wrongful act of the defendant. Mere violation of any legal right of the
plaintiff would render the defendant liable to pay for damages.
 TORT CRIME
f public duty which affects the society as a wwhole.
1. It is a violation of civil
or a personal right.

The offender is punished in the interest of

2. The plaintiff is awarded society.
damages for the wrong caused
to him by the defendant.
The criminal proceedings against the
offender is instituted by the Court and he is
3. The plaintiff can himself punished in the interest of the society.
institute a civil proceeding
against the defendant.

4. In tort the motive is not In crime motive mens rea plays an

paid relevant importance. immense role for turning the liability of the
offender.

5. Tort is a mere breach of

duty for which damage may Crime is an unlawful act prohibited by law
be recovered from the for which the only remedy is to punish the
defendant. offender.

DISTINCTION BETWEEN TORT AND CONTRACT

BREACH OF CONTRACT
A breach of contract involves violation
TORT
of a right is personum, which means the
1. A tort involves violation of a duty in contract exists only as between the
right in rem, which means duty in parties who enter into the contract and
torts exists towards torts all persons cannot be enforced by or against a third
generally. party.

2.Duty is imposed by law. Duty is imposed by parties consenting to the

contract.

3. The action in Tort damages are

unliquidated because it is difficult In contract the damages are pre-determined
to visualise in advance the quantum and stipulated in the terms of the contract
or degree of damage caused to the itself
plaintiff.
Doctrine of vicarious liability

The doctrine of vicarious liability generally operates within the law of torts. It has
become well-established in English law and historically has been called Master and
Servant liability. Vicarious liability means liability which is incurred for or instead
of, another. A person is responsible for his own acts. But there are circumstances
where liability attaches to him for the wrongs committed by others. The most
common instance is the liability of the master for wrongs, committed by his servant.
In these cases liability is joint as well as several. The other common example of
vicarious liability is the liability of an employer for the torts of his employees
committed in the course of employment. It is not necessary in such circumstances for
the employer to have breached any duty that was owed to the injured party, and
therefore it operates as strict or no-fault liability. It is possible that the injured party
could be either an employee or a stranger, and the employer can be held vicariously
liable in both situations. The most important element to establishing a case for
vicarious liability is that the wrongdoer be acting as a servant or employee, and that
the wrong done be connected to the employees course of employment. Vicarious
liability can only be imposed if it is proved that the employee was acting in the
course of employment. This criterion is essential, and requires a clear connection
between the employment duties and the employees acts complained of.
A reason for vicarious responsibility of employers is that employers usually are, while
their servants usually are not, financially capable of the burden of civil liability. The
theory partly owes its existence to the anxiety of the injured person to find a solvent
defendant. Again it is said that the employer should be made liable because it is he
who has set the whole thing in motion.
Chief Justice Shaw of the Massachusetts Supreme Court in the case of farewell v.
Boston and Worcester Rly. Co. Stated that this rule is obviously founded on the great
principle of social duty, that every man in the management of his own affairs whether
by himself or by his agents or servants shall so conduct them as not to injure another;
and if he does not and another thereby sustains damage, he shall answer for it. If done
by a servant in the course of his employment acting within the scope of his authority it
is considered in contemplation of law, so far the act of the master, that the latter shall
be answerable civiliter. The maxim respondeat superior is adopted in that case from
general considerations of policy and security.

CASE OF MASTER AND SERVANT

A servant is a person who voluntarily agrees, whether for wages or not, to subject
himself at all times during the period of service to the lawful orders and direction of
another in respect of certain work to be done. A master is the person who is legally
entitled to give such orders and to have them obeyed.
A master is liable to third persons for every such wrong of his servant as is
committed in the course of his employment. Now, a wrongful act is said to be done in
the course of masters employment if it is- (1) authorised by the master or (2) a
wrongful and unauthorised mode of doing an act authorised by the master. In other
words, to hold a master liable for the wrongful act of a servant it must be committed
in the course of masters business, so as to form part of it, and not merely coincident
in time with it. For torts committed in any manner beyond the scope of employment,
the master is liable if he has expressly authorised, or subsequently ratified them.
Course of Employment
An employer will only be liable for torts which the employee commits in the course
of employment. Although this is a question of fact in each case, there is little
consistency in the decisions. It is therefore extremely difficult to state the law simply.
Course of employment is legal considerations of all circumstances which may
occur in the performance of a person's job, especially during a period of time where
specific objectives are given by the employer to the employee are being fulfilled. The
course of employment encompasses the actual period of employment and the period
during which the employee, while on the employer's premises, prepares to commence
or to depart from work, such as by changing clothes. Employer-sponsored recreational
activities are also considered part of the course of employment when organized,
encouraged, or supported by the employer for business purposes, such as promotion
of inefficiency.

Illustration
ROBBERTS v. SHANKS, (1924) 27 Bom. L. R. 548. (Chauffeurs case).
On alighting from his car, the defendant ordered his chauffeur to take the car direct to
the garage. The chauffeur, however drove the car to his own residence, took his meals,
and whilst driving the car to the garage, negligently drove it into plaintiffs car and
caused damage to it. The defendant was held liable in damages for, at the time of the
accident, the chauffeur was acting in the course of his employment.
A master becomes liable for the wrong done by a servant in the course of his
employment in the following six ways-
1. The wrong may be the natural consequence of something done by a servant
with ordinary care in execution of the masters specific orders.
2. The wrong may be due to the servants want of care or negligence in carrying
on the work or business in which he is employed.
3. The servants wrong may consist in excess or mistaken execution of a lawful
authority.
Here it must be shown-
(a) That the servant intended to do on behalf of his master something which
he was, in fact, authorised to do; and
(b) That the act, if done in a proper manner, or under the circumstances
erroneously supposed by the servant to exist, would have been lawful.
4. The wrong may be a wilful wrong, done on the masters behalf and with the
intention of serving his purposes.
5. The wrong may be due to the servants fraudulent act.
6. The wrong may be due to the servants criminal act.
Vicarious Liability of State

The government of India may sue or be sued by the name of the Union of India
and the government of a State may sue or be sued by the name of the state and
may, subject to any provisions which may be made by act of parliament or the
state legislature enacted by virtue of powers conferred by this constitution, sue or
be sued in relation to their respective affairs in the like cases as the Dominion of
India and the corresponding Provinces or the corresponding Indian states might
have sued if this constitution had not been enacted.
Government Liability in tort:
(a) The ruling principle is that Government is not liable for torts of its employees
committed in the course of performance of sovereign functions.
(b) The theoretical doctrine as per (a) above is still adhered to, but it is being
applied in a liberal manner and the courts interpret sovereign narrowly, as is
shown by recent law.

A suit lies against the government for wrongs done by public servants in the
ourse of business, such as death or injury caused to a person by Police
atrocities; Saheli v. Commissioner of Police, AIR 1990 SC 513: (1990) 1 SCC
422: 1990 SCC (Cri) 145.
In lame words sovereign functions are those functions which can be done by the
government agencies only.