I.

Meaning and Origin of "Tort"

French Origin: The term "tort" originates from French.
Latin Derivation: It is derived from the Latin word ‘tortam’, which signifies "twist" and implies
"twisted or tortious conduct."
Historical Usage: In early English law, "tort" was used synonymously with "wrong." However,
it later evolved to acquire a more specific and narrower meaning than the general concept of
"wrong."
II. Definitions of Tort
The exact scope of tort law remains somewhat unsettled, and achieving an accurate and
exhaustive definition has proven challenging. Two prominent definitions are presented:
Salmond's Definition: Salmond defined tort as a “civil wrong for which remedy is a
common law action for unliquidated damaged and which is not exclusively the breach of
contract, or the breach of trust or other equitable obligation.” This definition highlights several
key elements:
Civil wrong: It is a wrong against an individual, not society as a whole.
Unliquidated damages: The remedy involves damages not predetermined by a fixed formula.
Exclusion of specific breaches: It explicitly excludes breaches of contract, breach of trust, or
other equitable obligations.
Winfield's Definition (Considered by some as the best): Winfield defines tort thus:
“Tortious liability arises from the breach of the duty primarily fixed by law, this duty is towards
persons generally and its breach is repressible by an action for unliquidated damages.” This
definition emphasizes:
Breach of duty fixed by law: The duty is established by law, not by contract or moral
principles.
Duty towards persons generally: The duty is owed to people in general, rather than to
specific parties in a contractual agreement.
Unliquidated damages: The remedy involves unliquidated damages.
III. Key Characteristics of Tort as a Civil Wrong
Civil Action, Not Criminal: Tort is fundamentally a civil action. It is considered a wrong
against a particular person or group of persons, not against society as a whole.
Infringement of Individual Rights: It infringes upon the rights of a person or group, unlike
criminal actions where the crime is against society.
Lesser Seriousness than Criminal Acts: Civil wrongs generally do not carry the same level
of seriousness as criminal acts.
Legal Remedy: The legal remedy for tort is an action brought through civil proceedings.
IV. Understanding Unliquidated Damages
Indeterminate Sums: Unliquidated damages are "sum of money that cannot be foreseen or
assessed by a fixed formula."
Judicial Determination: The amount is established by a judge or jury.
Unforeseeable or Uncalculable: Damages are categorized as unliquidated when their
amount is "unidentifiable or subject to an unforeseen event that makes the amount not
calculable."
V. Distinguishing Tort from Other Legal Concepts
The definitions of tort clearly delineate it from other forms of legal liability:
Breach of Contract:
Describes the "violation of a contract or an agreement that occurs when one party fails to
fulfill its promises according to the provisions of the agreement."
Can involve interfering with another party's ability to fulfill duties.
Can be breached in whole or in part. Tort is distinct as its duty is fixed by law, not by
agreement.
Breach of Trust:
Involves the "abuse of power, or failure (whether or not deliberate, dishonest, or negligent) to
carryout the general and fiduciary duties of a trustee."
Trustees are personally liable for losses to the trust caused by the breach and must surrender
any profits made from the breach. Tort is distinct from these specific fiduciary obligations.
VI. Objectives and Purposes of Tort Law
Tort law serves several important objectives:
Compensation: The most obvious objective is to "provide a channel for compensating victims
of injury and loss." It is the mechanism for deciding liability and assessing/awarding
compensation.
Protection of Interests: Tort law safeguards various individual interests:
Land and Property: Protected by torts like nuisance (protects use/enjoyment of land).
Reputation: Protected by torts like defamation.
Bodily Integrity: Protected by torts like negligence (protects breaches of general duties).
Deterrence: The rules of tort are suggested to have a "deterrent effect, encouraging people
to take fewer risks and to conduct their activities more carefully." This is evident in increased
risk management awareness, though less obvious in some areas like motoring.
Vindication: Tort offers a means for an innocent person to be "vindicated by being declared
publicly to be ‘in the right’ by a court." However, this opportunity may not arise if cases do not
reach court.
Loss Distribution: Tort is often recognized as a "vehicle for distributing losses suffered as a
result of wrongful activities." "Loss" in this context refers to the cost of compensating for
harm.
Punishment of Wrongful Conduct (Minor Role): While primarily a function of criminal law,
tort can play a "small part... as there is a certain symbolic moral value in requiring the
wrongdoer to pay the victim." This aspect has diminished with the prevalence of insurance.

Distinguishing between Tort and Crime:

◦Tort is a civil wrong and not a criminal act.
◦ A tort is considered a wrong against a particular person, not the society as a whole,
whereas a criminal action is committed against society as a whole.
◦ Civil wrong (tort) does not carry the same amount of seriousness as a criminal act, and the
legal remedy is an action brought by means of a civil proceeding.
◦ While punishment of wrongful conduct is a main function of criminal law, it may play a
small part in the law of tort, though its value has lessened with the introduction of insurance.
• Distinguishing between Tort and Breach of Contract:
◦ Salmond's definition explicitly states that tort is a civil wrong for which the remedy is
unliquidated damages and "which is not exclusively the breach of contract, or the breach of
trust or other equitable obligation". This clearly sets tort apart from contract law.
◦ Winfield's definition further clarifies that tortious liability arises from a "breach of the
duty primarily fixed by law," emphasizing that a "breach of duty fixed by contract or moral
principles is not enough".
◦ A "breach of contract" is described as the violation of an agreement when one party fails
to fulfill its promises. This arises from an agreement between parties, unlike the duties in tort
which are primarily fixed by law.