What is Tort?

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 unlawful[2] which is
just the opposite of straight or lawful. Torts are usually offenses committed by a person who attempts or
intends to do harm. Torts are the acts that injure someone in some way, and for which the injured person
may sue the wrongdoer for damages. Legally, torts are called civil wrongs, which are opposed to criminal
ones.According to Salmond and Hueston, “A tort is a civil wrong for which the remedy is a common action
for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or
other mere equitable obligation.”This branch of law mainly consist various torts i.e. wrongful acts whereby
one person is liable for his acts when he violates the legal rights of the other in some of the other way and is
supposed to pay damages. The person committing a tort or wrong is called a tort-feasor or wrongdoer, and
his misdoing is a tortuous act.[3] For example, if a person enter into the premises of another person, he will
be held liable for trespass as law has conferred on every one the right to enjoy his own property and if he
interfere with others property, he have to answer for that. Unlike Contract, no scientific definition has been
feasible which could mention the specific elements which would constitute a tort hitherto. Because, the
wrongs included under torts are of diverse species, and all of them have their own separate historical
background of origination.So, the key findings of Torts are:· Tort is civil wrong different from other civil
wrongs· Tort must be distinguished from the breach of contract· Torts is distinguished from the crimes· The
Apt Remedy for Tort is an Action for unliquidated damages· Tort is the Infringement of a Right in rem.Types
of TortThere are different types of torts such as intentional torts, property torts, dignitary torts, economic
torts, nuisance, negligence, duty to visitors, strict liability torts.[4] But torts can be basically classified as
three types. They are:Intentional torts;Negligence; andStrict liability.Intentional tort:Intentional torts are
civil wrongs that occur when the wrongdoer engages in intentional activity that results in damages to
another.[5] Hitting another person in a fight is an intentional act that is the tort of battery. Hitting a person
accidentally will not be an intentional tort since there is no intent to hit the person.Negligence:Negligent
torts are defined as behaviors that jeopardize one’s safety caused by another. As negligence relate to
insurance and other claims, but an intentional tort mandates that the defendant be liable for an action that
caused unjustifiable harm to another person. The majority of the time, a negligent act is due to carelessness
or an unintentional behavior that leads to this damage. Negligence includes car accidents, slip-and-fall
cases, malpractice, personal injury, and some product liability cases.Strict liability:In the strict liability tort,
the defendant does not have to be proven responsible for the damages. Unlike negligent and intentional
torts, strict liability tort requires a negative outcome to occur even when all precautionary measures were
taken to prevent a dangerous event from happening.[6] For example, in most states, when contractors use
dynamite which causes debris to be thrown onto the land of another and damages the landowner’s house,
the landowner may recover damages from the contractors even if the contractors were not negligent and
did not intend to cause any harm.Ingredients of TortThere are four essential ingredients of torts. They are:1.
Wrongful act or omission2. Duty imposed by law3. Injury4. Legal Remedy:Wrongful act or
omission: Wrongful acts are those acts that will damage the rights of another, unless those are done in the
exercise of another equal or superior right.[7] For that reason, the scope of wrongful acts is not limited to
illegal acts, but includes acts that are immoral, anti-social, or libel to result in a civil suit. There must be
some acts or omissions of a duty on the part of the defendant. For a tort to happen, the person must have
first either done something that he was not expected to do or omitted to do something that he was supposed
to do. If there is any wrongful act or omission that causes damages, then the person will be liable for that
act.Example:a clock tower was not in good repairs. It fell and killed several people. Municipal Corp. of Delhi
was held liable for its omission.[8] The MCD did an omission which was resulted in killing several people of
the area and was liable for what it did.Duty imposed by law:A legal duty is an obligation that is imposed by
the law.[9] Fail in fulfilling such a duty can result in criminal or civil sanctions. There are some duties that
are directly imposed by the law. The act or omission of an action must be required by the law or the duty
must be imposed by the law. It means that if an act that is prohibited by law causes damages, it must be
liable under tort. In addition, if the omission of an act that is required by law causes harm, then it is liable
under tort. For example, law requires that the driver of a vehicle must drive the vehicle carefully and if
driving without care, a pedestrian is hit, the omission of the act of driving carefully is liable under tort. But,
if the worshipers stop going to a temple and thereby cause the priest to lose money, this action is not liable
under tort because going to temple is not an act that is required by law. Such duties that are required by
law are usually towards all the people in general.Example:The manufacturer company of a drink has a legal
duty towards the consumers to ensure that noxious substances are not included in the drink.[10] If the
company includes harmful noxious substances into the drink then it will be liable under law and will be
punished.Injury:Injury generally refers to a harm suffered, which may be physical or emotional pain and
suffering, damage to reputation or dignity, loss of a legal right, breach of contract, or damage to real or
personal property.[11] The act or the omission must result in legal damage or injury. For example, violation
of a legal right vested in the plaintiff. This means that the act or omission must cause a damage that is
recognized by law as wrongful. For example, a person has a legal right to enjoy his property and if someone
throws trash in it, this is a violation of his legal right and is liable under tort. However, it is possible that a
legal right is violated without causing any physical or real damage.Example:In the case Ashby vs. White, the
defendant wrongfully prevented the plaintiff from voting. Even though there was no damage, the defendant
was held liable.[12]On the other hand, it is possible that a person suffers a huge loss or damage but none of
his legal rights are violated. In such cases, there is no tortuous act.Legal Remedy:The way a right is
enforced by a court of law when injury, harm, or a wrongful act is imposed upon another individual.[13] It
has been accepted that there can be many kinds of torts and if a violation of a legal right has happened, the
person is entitled to sue.
Every child is a citizen of his country and is governed by the rules and regulations prevailing there. But a
child has certain exceptions which makes him different from adults. His incapability to distinguish between
right and wrong, lack of farsightedness, innocence and naughtiness makes a child outstanding in the stream
of adults. Minors can be sued if they are old enough to form intent to commit a particular tort or are sensible
enough to prevent from a negligent act done by them. They can sue just like adults but through their next
friends who are obviously their parents. Interestingly enough a child in the mother’s womb who suffered an
injury due to an outsider can also sue the guilty for his injury, of course after coming in the world. Talking
about parents, they can be held liable if they owed direct duty of care towards their child while he
perpetrated a tort.
Further, in India there is no existing enactment for the minor in context of torts. But we have a provision in
criminal law that a child of less than 7 years cannot be held liable for crime. Now, if we have a provision in
criminal law, why not pass an act which keeps torts and minor in mind, knowing the fact that children are
more prone to civil wrongs instead of committing crimes. This article is an attempt to make the reader aware
of the law of torts (civil wrongs) governing minor i.e. a person below the age of maturity and surface up the
intricacies in the prevailing laws.
MinorIn India a person of 18 years or above becomes major, but, if a guardian is appointed before that age
or a property is taken under superintendence by the court then the age of majority is raised to 21. Under
common law, age of majority was reduced to 18 from 21 after the introduction of Family Law Reform Act,
1969.
1.Capacitytobesued
1.1AgeFactorThere is no minimum age for the existence of tortuous liability . A minor, can be very well sued
like an adult, if the action committed by him is in contrast with the reasonable action expected from the child
of that age in a particular situation. Capacity to sueA minor must sue by his ‘litigation friend’ or the ‘next
friend’ (usually father) for any wrong done to him. Apart from this, a minor is in no way different from an
adult. An unemancipated minor may even sue his parent for negligence. In an American case a father was
held liable for running his business vehicle over his son while the plaintiff was playing in the field. As per
notion, a minor is not worth suing because of his incapability to reimburse damages. But, if the affluent
society is considered and when we see that a judgement debtor now without funds may acquire them
(damages) later, and that he may be sued on the judgment, or execution may be issued on it, up to six years
from its date, or even after that period with the leave of the court , the notion appears untrue.Contributory
NegligenceWhen contributory negligence is alleged against any minor then the test is, what degree of care
for his own safety can an infant of the particular age reasonably be expected to take.
The Pearson Committee (UK) in 1978 took the view that a child less than 13 should not be held contributory
negligent. But, unusually in Armstrong v. Cottrell and Morales v. Eccleston court dealt with facts and
children of less than 13 years of age were held liable. Explicitly, almost same standard of care i.e. ability to
do an act according to the age is appliedincontributorynegligence.Tort and ContractA minor is liable in tort
as an adult but the tort must be independent of the contract. A minor’s agreement is void even if he
fraudulently represents himself to be of full age as established in Sadik Ali Khan v. Jaikishore. Similarly,
in R. Leslie Ltd v. Shiell [1914] 3 K.B. 607 at 620 a minor was immune to any contractual charges or
reimbursement inspite of availing loan facilities by fraudulently projecting himself of full age. In the same
case it was established that it is possible to compel a minor for specific restitution if he fraudulently acquired
some property and is still in control and possession of that property.
Though, now, the common law court has discretion to order the transfer back of the property acquired even
without fraud, if still in possession, under section 3(1) of the Minors’ Contracts Act 1987. In case of a bail,
contract with minor is not necessary for restoration of the goods on the determination of the
bailment.Capacity to sueA minor must sue by his ‘litigation friend’ or the ‘next friend’ (usually father) for any
wrong done to him. Apart from this, a minor is in no way different from an adult. An unemancipated minor
may even sue his parent for negligence. In an American case a father was held liable for running his
business vehicle over his son while the plaintiff was playing in the field.