A careless driver breaks your leg. A factory's leak poisons your street. Someone publishes a lie that costs you work. None of these is primarily a police matter, and in each one there is a person who owes you money.
A tort is a civil wrong other than a breach of contract, for which the remedy is unliquidated damages — compensation the court fixes rather than a sum agreed in advance.
The bottom line
Where the law comes from: mostly uncodified common law developed by the courts, supplemented by statutes such as the Motor Vehicles Act and the Consumer Protection Act. There is no Indian Torts Act.
What you have to show: a wrongful act, a resulting legal injury, and a remedy the law provides.
What you can get: damages and injunctions, and occasionally restitution of property or constitutional compensation from the State.
What a tort is
A tort is a civil wrong arising from the breach of a duty the law imposes on everyone, rather than one a contract created. The word comes from the Latin tortum, meaning twisted or wrong.
When someone commits a tort, the injured party brings a civil suit for unliquidated damages — an amount the court decides. The purpose is compensation: putting the victim back, so far as money can, in the position they would have been in had the wrong not happened.
Tort, crime and contract
These three get confused constantly, and the distinctions are simple once separated.
Tort against crime. A crime is a wrong against the State, prosecuted by the State, punished by imprisonment or fine. A tort is a wrong against an individual, who sues for compensation. The same act — an assault, say — can be both at once, prosecuted in one court and sued on in another.
Tort against breach of contract. A contractual duty is one the parties agreed to. A tortious duty is one the law imposes on everyone regardless of agreement. Damages in contract are often pre-agreed or built on expectation; in tort they are unliquidated and compensatory.
What a claimant has to establish
- A wrongful act or omission by the defendant — doing something they should not have, or failing to do something they were legally bound to do.
- Legal damage, or injuria — a violation of a legal right the law recognises, rather than a moral or social grievance.
- A legal remedy — the law has to provide redress, usually damages.
The maxim ubi jus ibi remedium, where there is a right there is a remedy, is the idea underneath all three.
Two maxims that decide what is actionable
Injuria sine damno, legal injury without actual loss. Violating a legal right is actionable even where no loss follows. In the classic case a voter wrongfully denied his vote could sue although his preferred candidate won anyway. The right itself was the thing protected.
Damnum sine injuria, loss without legal injury. Real loss with no violation of a legal right is not actionable. A new school opens next door and lawfully draws away your pupils: you have lost money and no right of yours was infringed, so there is no claim.
Read together, they show that tort law protects legal rights rather than interests or profits.
Negligence
Negligence is the workhorse behind most accident, medical and product claims. Four elements have to be proved.
- Duty of care — the defendant owed the claimant a legal duty to take reasonable care.
- Breach — they fell below the standard of a reasonable person.
- Causation — the breach actually caused the harm, and the harm was not too remote.
- Damage — the claimant suffered real, legally recognised harm.
The duty of care was famously established in Donoghue v Stevenson, where a manufacturer was held to owe a duty to the ultimate consumer of its product. Indian courts apply the same framework to road accidents, medical negligence and unsafe premises.
A related principle, res ipsa loquitur — the thing speaks for itself — can shift the burden where the accident is of a kind that ordinarily does not happen without negligence.
The other major torts
- Nuisance — unlawful interference with a person's use or enjoyment of their land, such as persistent noise, smoke or pollution. Public nuisance affects the community, private nuisance an individual.
- Trespass — direct, intentional interference with another's person, covering battery, assault and false imprisonment, or with their property, such as entering land without permission.
- Defamation — a false statement harming a person's reputation. Libel is written or otherwise permanent, slander spoken or transient. Truth and fair comment are defences.
- Malicious prosecution and false imprisonment — wrongs against personal liberty and reputation through abuse of legal process or unlawful detention.
Strict and absolute liability
Some activities are dangerous enough that liability attaches without any proof of negligence.
Strict liability, the rule in Rylands v Fletcher: a person who brings a dangerous thing onto their land, which then escapes and causes harm, is liable even without fault. It comes with defences — act of God, the claimant's own fault, the act of a stranger.
Absolute liability is an Indian innovation. In M.C. Mehta v Union of India, the Oleum gas leak case, the Supreme Court held that an enterprise engaged in a hazardous or inherently dangerous activity is absolutely liable for harm from any escape, with no exceptions at all. It is deliberately stricter than Rylands v Fletcher, and it was fashioned for industrial India after Bhopal.
Vicarious liability
A person can be liable for someone else's tort where a special relationship exists, and the important one is an employer for the torts of an employee committed in the course of employment.
The reasoning is that the employer controls the work and takes the benefit of it, so should carry the risk. The State can also be vicariously liable for the wrongful acts of its servants in certain circumstances.
Defences
- Volenti non fit injuria — the claimant consented to the risk, as a spectator at a sport does.
- Contributory negligence — the claimant's own carelessness contributed to the harm, which reduces damages.
- Act of God, or vis major — an extraordinary natural event no human foresight could have guarded against.
- Inevitable accident, necessity, private defence and statutory authority — each excuses conduct that would otherwise be tortious, within its own limits.
Remedies
- Damages — monetary compensation, which may be nominal, compensatory, or rarely exemplary.
- Injunction — a court order restraining a continuing or threatened wrong, such as an order to stop a nuisance.
- Specific restitution of property — the return of property wrongfully taken.
India has also developed the constitutional tort: compensation awarded by the higher courts for a violation of fundamental rights by the State, for instance in a case of illegal detention. It sits across the boundary between public and private law, and it is the route that works when the wrongdoer is the government.
A worked example
A pedestrian is struck by a delivery rider speeding through a red light, and suffers a fractured leg.
She sues in negligence. The rider owed a duty of care, breached it by speeding and jumping the signal, which caused her injury and her damage. Because he was acting in the course of employment, his employer may be vicariously liable alongside him.
The rider might plead contributory negligence if she stepped out carelessly, which would reduce her damages rather than defeat the claim. She would claim compensatory damages for medical costs, lost income and pain.
The Motor Vehicles Act also provides a statutory compensation route through the Motor Accident Claims Tribunal, which often runs in parallel with the tort principles rather than instead of them.
Common misconceptions
- That torts are codified in one Act. In India they are mainly judge-made common law, supplemented by statutes.
- That any loss can be sued for. Only the violation of a legal right is actionable, which is what damnum sine injuria means.
- That negligence must be proved for every dangerous activity. Hazardous activities attract absolute liability without proof of fault.
- That a tort and a crime are the same thing. The same act can be both, but one seeks compensation and the other punishment.
- That you cannot sue without a physical injury. Some torts, defamation among them, are actionable without any.
Frequently asked questions
Is the law of torts codified in India? No. It is largely uncodified common law developed by the courts, supplemented by statutes such as the Motor Vehicles Act and the Consumer Protection Act.
What is the difference between a tort and a crime? A crime is a wrong against the State, punished by the State. A tort is a wrong against an individual, who sues for compensation. The same act can be both.
What are the elements of negligence? Duty of care, breach of that duty, causation, and resulting damage.
What is absolute liability? The rule from M.C. Mehta v Union of India holding enterprises in hazardous activities fully liable for any escape causing harm, with no exceptions. It is stricter than strict liability.
What remedies can I get in a tort claim? Mainly damages and injunctions, sometimes restitution of property, and constitutional compensation where the State has violated a fundamental right.
Can I sue my employer's employee, or the employer? Both, where the tort was committed in the course of employment. Vicarious liability adds the employer rather than substituting them.