DISTINCTION OF LAW OF TORT FROM LAW OF CRIME AND DUTY IN OTHER CIVIL

DISTINCTION OF LAW OF TORT FROM LAW OF CRIME AND DUTY IN OTHER CIVIL

CASES

ISSUES:-

(a) Distinguish between law of tort and law of crime?

(b) Distinguish between law of tort and law of contract?

(c) Distinguish between law of tort and breach of trust?

(d) Distinguish between law of tort and quasi-contract?

PURPOSE – The purpose of distinguishing tort from other branches of law is that the nature of a tort can be understood clearly by distinguishing tort from crime and other civil laws.

TORT AND CRIME 

A tort is a civil wrong and thus the law of tort is a branch of civil law. The wrongs that involve a lesser degree of seriousness and cause injury or threaten to cause injury to only a certain number of persons are considered private wrongs and are labeled as civil wrongs or torts. On the other hand, when the seriousness involved or the injury caused is grave and shakes the conscience of society as a whole, the wrong is considered to be a public wrong or a crime.

Blackstone distinguished and defined wrongs by stating, “Wrongs are divisible into two sorts or species, private wrongs and public wrongs. The former are the infringement of private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries; the latter are breaches and violations of public rights and duties, which affect the whole community considered as a community; and are distinguished by the harsher application of crimes and misdemeanours.”

Being a civil injury, a tort differs from a crime in all respects in which a civil remedy differs from a criminal one. The sanctions of criminal law are punitive or at least disciplinary, while those of civil law are restorative or compensatory. A crime may be defined as a wrong, the sanction of which involves punishment such as death, penal servitude, imprisonment, fine, etc. Even the fine imposed on the accused person is invariably in addition to some punishment. 

The essence of punishment is its inevitability; once liability is pronounced, no option is left to the offender regarding whether they shall endure suffering. In a civil case, however, if a person is adjudged to pay a debt or damages or is put under an injunction, they can always compromise to rid themselves of liability with the injured party's assent.

Since tort is a private wrong, the injured party must file a suit as a plaintiff. In criminal law, even though the immediate victim is an individual, the crime committed is considered to be against the community, i.e., a wrong against the public at large or the state. Hence, criminal proceedings are never brought by the injured party but by the state.

There are several wrongs which are both crimes and torts, for example, assault, defamation, nuisance, and conspiracy. Although the wrongs are the same, they are differently defined under the two branches of law, and the rules applicable for these wrongs in the two branches are different. In cases where the same set of facts may constitute both a tort and a crime, the civil and criminal remedies are not alternative but concurrent.

TORT AND CONTRACT

The distinction between a tort and a contract is clearly brought forth by the definition of tort given by Winfield, which states: “Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” 

A contract is an agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, contents, and consequences of which are determined and defined by the agreement of the parties, with the law giving legal force and authority to the agreement. 

Thus, while in tort, the duties are fixed by law, in a contract, they are fixed by the parties themselves. In a contract, one party owes duty only to another contracting party (Principle of Privity of Contract), while in tort, the duty imposed by law is not towards any specific individual or individuals but towards the world at large. 

Both in tort and contract, the remedy available is damages. However, while in a contract the damages are liquidated (i.e., predetermined by the parties), in tort, the damages are unliquidated, meaning they are not predetermined by the parties but are awarded by the court. 

In certain cases, the same incident may give rise to liability both in contract and tort. For example, when a passenger is injured while traveling with a ticket due to the railway company’s negligence, the company is guilty of a wrong that is both a breach of contract and a tort. 

In Edwards v. Mallan (1908 KB), it was held that a dentist who contracts to pull out a tooth is liable for breach of contract if he injures the patient through unskillful extraction. He is also liable for the tort of negligence, as everyone who professes skill in a calling is bound by law, agreement or no agreement, to show a reasonable amount of such skill. 

In such cases where the same fact results in both a breach of contract and a tort, the plaintiff cannot claim damages twice over. He can either sue for the breach of contract or for the commission of the tort. 

The contractual duty may be owed to one person and the legal duty (duty by law) independently of the contract to another. For example, a surgeon called by a father to operate on his daughter owes a contractual duty to the father to take care. If he fails in that duty, he is also liable for a tort against the daughter. In Pippin v. Sheppard (1822), a surgeon was called in by a husband to treat his wife. The court held that the husband could sue the surgeon for breach of contractual duty, while the wife could maintain an action in tort. 

Thus, liability in tort is fixed by the law irrespective of any contract between the parties, although it is possible that in certain circumstances, liability in tort may be modified by contract.