1 LAW OF TORTS | LECTURE NOTES
M. S. RAMA RAO [Link]., M.A., M.L.
Torts Distinct From Crime:
Torts Crime
1. In tort, there is an infringement of a civil 1. In crime, there is an infringement of a
right or a private right of the party. Hence, public right affecting the whole community.
a tort is a private wrong. Hence, a crime is public wrong.
2. In tors, the wrong-doer (tort feasor) should 2. In crime, the criminal is punished by the
pay compensation to the plaintiff according state in the interests of the society,
to the decision of the court. punishment may be death, imprisonment
or fine as the case may be.
3. In tort, the affected or injured party may 3. In crime, the state is under a duty to
sue. institute criminal proceedings against the
4. The right to sue or to be sued survives to accused.
the successor. (Rose V. Ford) leading case 4. The legal action dies with the person in
crimes subject to certain exceptions. The
maxim is 'Actio personalis moritur cum
persona', (personal action dies with the
person).
Tort Distinct from Quasi-Contracts:
a) In tort, there is a primary legal duty fixed by law, but in quasi-contract there is no such duty. A
qualified surgeon who operates on P, owes a legal duty to P, and hence becomes liable for
negligence. In quasi-contract, for example, in unjust enrichment, legal there is no duty where
delivers goods by mistake to B instead of to C. B is not under a legal duty not to receive the
goods. Of course, B must return the goods to A, but he is not liable to pay compensation to A.
b) In tort, breach of duty is redressible by an action for damages. The damages are determined by
the Courts. There is no such liability in quasi-contracts.
Reasonable Man
The reasonable man has a reference to the ''Standard of care" fixed by law in negligence or in
other tortious obligations. A reasonable man is a person who exhibits a reasonable conduct
which is the behavior of an ordinary prudent man in a given set of circumstances. This is an
abstract standard. As Lord Bowen rightly stated "he is a man on the Clapham Omnibus". "He is
not a person who is having the courage of Achilles or the wisdom of Ulysses or the strength of
Hercules." But he is a person who by experience conducts himself according to the
circumstances, as an ordinary prudent man. He shows a degree of skill, ability or competence
which is general in the discharge of functions. He is not a perfect citizen nor a "paragon of
circumspection." Winfield.
As Winfield pointed out, the reasonable man's standard is a guidance to show how a person
regulates his conduct. A driver should have the capacity to drive as an ordinary prudent driver.
He need not show the skill of a surgeon, an advocate, an architect or an engineer. He must
show his skill in his own work or profession. In fact, "a reasonable man is a judicial standard or
yardstick which attempts to reach exactness. This is because complete exactness may not be
reached". Hence, the judge first decides what a reasonable man does and then proceeds
to find out whether in the circumstances of the case, the defendant has acted like a
reasonable man. Conflicts do arise as it is not possible to specify reasonableness in all
its exactness, or with specifications. Reasonableness can be best explained in cases of
negligence. Negligence is in fact the omission to do something which an ordinary prudent man
would not do in the circumstances. Hence, reasonable man is a man who uses ordinary care
and skill. In Daly V. Liverpool Corporation it was held that in deciding
whether a 70 year old woman was negligent in crossing a road, the standard was that of an
ordinary prudent women of her age in the circumstances, and not a hypothetical pedestrian.
The standard of conduct is almost settled since the case of Vaughan V. Manlove. The defendant
D's hay stock caught fire and caused damage to p's cottages. D was held liable as he had not
acted like a prudent man. In the Wagon Mound case (No 1) the test of "reasonable foresight"
was applied and the defendants were held not liable. In fine, a reasonable man is only a legal
standard invented by the courts.
