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Difference Between Tort And Crime

Introduction

Crime and tort come from a common root. Ancient lawmakers did not necessarily see a difference between tort and crime, and a victim during those times could pursue justice through a forerunner of either criminal law or tort law. Gradually, with the passage of time and the emergence of more complex legal systems, wrongs came to be classified into crime and tort. Simply put, the graver wrongs are termed as crimes, whereas the lesser ones are termed as a tort, or torts. However, their differences go farther than this.

Background

English law earlier followed the ‘formulary system’, which was, at the core, composed of ‘writs’. When the formulary system stood abolished in the 19th century, various causes of action were thought upon again, initiating a fresh approach. This development came in the form of the liability for negligence. In fact, this major advance started even before the abolishment of the formulary system. The negligent conduct came to be classified into categories – negligence in a doctor-patient relationship, occupier-visitor, carrier-passenger, and so on. This category-based approach gave birth to the system of torts.

Crime, on the other hand, came in quite early, possibly when the first human civilisations appeared. For tort law, we can say that it emerged when relationships between people grew more composite, but crime was the very basic form of a ‘wrong’ that a person could commit, such as theft, lying, fraud, assault, or murder. When informal relationships could no longer control crime, the need was felt for a superior authority to maintain order, which in turn led to the formation of kingdoms and governments, which enacted penal laws.

Even though the central idea, in both crime and tort, is that of a ‘wrongful act’, tort law is essentially a part of private law, whereas crime is a part of public law.

In India, tort law is not much developed, that is why many people are not aware of its existence. However, it has come to take shape in the form of the Consumer Protection Act, 1986, the Motor Vehicles Act, 1988 etc. The Indian Penal Code, contrastingly, deals with criminal law in a very detailed manner.

Basic Differences Between Tort And Crime

Overall, there are 10 salient differences between tort and crime. These Are –

1. When a person violates the criminal law, the state prosecutes the accused, and the victim’s consent for the same is neither necessary nor sufficient in order to prosecute the accused. But when a person violates a tort, it falls upon the victim of such person whether to bring a claim against that person, the wrongdoer, or not.

2. To bring a claim in tort law, some harm must be caused to the person, whether to his body or to his property, i.e. harm is a prerequisite for remedy. Contrary to this, the state may prosecute a person for acts that are harmful to not only others but also those acts which are intended to cause harm to a specific person, as well as acts which have not yet been committed but are harmful if committed. It will also include those acts which may not necessarily be harmful but the society considers them to be ‘immoral’. Tort law does not allow claim on an act which has not been committed.

3. Sanctions in criminal law are much more serious than tort law: an offender may see his/her life behind bars permanently, or may even lose his life, if the offence he/she committed is of a very serious nature. Thus, the procedure followed in criminal law is much more extensive, if compared to tort law. Tort law simply enunciates that whatever wrong has been done, the compensation of the same must be paid to the victim.

4. The proportionality principle says that the punishment to the offender must fit the crime that he committed. This is vehemently followed in criminal law. But this principle exists nowhere in tort law, if viewed from a practical point of view. Even though the liability falling upon the wrongdoer may be scaled according to the wrongful act committed, but it does not change with the culpability of the wrongdoer. For example, A, B and C, all three caused an accident which resulted in Z’s car being damaged. However, it is possible that only A is responsible for the actual accident, and B only for exceeding the speed limit, and C only for momentarily taking his/her eyes off the road. But the compensation paid by all three would nevertheless be the same.

Punitive damages are exceptional, but they are found in a small number of cases, because it can become difficult to ascertain who exactly caused the extensive damage, and who is liable to pay only a minimal compensation.

5. Criminal law prosecutes on the basis of a number of elements other than the actual act, such as the mens rea, knowledge of the act being harmful, preparation before the offence, if any, etc., and the punishment varying accordingly. Tort law does not entertain any such secondary factors; there are very few categories of tort that take into account mental elements, and harm other than physical one, such as social harm (which is considered largely in criminal law). Emotional distress and defamation may be some of the rare examples. Since most of tort law is based on negligence, it only sees the actual damage done, to the person or property.

6. Ordinary negligence in tort law will amount to a claim being instituted against the wrongdoer. To prove gross negligence or felony in order to bring a claim against the wrongdoer is not needed. But in criminal law, it is sort of compulsory to prove a greater fault of minimal level before liability can be ensued, such as gross negligence and felony. Strict liability is present in both the laws, but in tort law it is much more widespread, and comes into effect when abnormally dangerous activities are carried out, for manufacturing defects, or for cruelty towards animals.

Strict liability in criminal law corresponds with the class of offence, and with mistake or ignorance of law, which cannot be pleaded as defences. The Indian approach to strict liability in tort law changed after the case of M. C. Mehta v. Union of India after the Supreme Court rejected the principle of strict liability and formulated the principle of absolute liability, which made an individual liable for his/her acts absolutely, thus leaving no exception as a loophole.

7. As stated earlier, criminal law does not require the victim’s assent to prosecute the offender; of course, if the crime was such that the victim did not get a chance to approach the court of law and the offence never came to light, the situation is different as well as disturbing. But, generally, when an offender is brought before the court, he/she is at the dispense of the state. The victim’s behaviour is not of a major concern to the court, and neither is his/her fault, if any. Contributory negligence is absent in criminal cases, and so is consent of the victim, since the enticing of the victim through substantial risks posed is also considered. The victim is more or less a source of evidence to the state, on the behalf of which, the state can punish the offender. Criminal law also includes certain victim-less crimes, such as gambling, prostitution, illegal circulation of drugs etc. In such cases, there is no one victim, but many, and the state still prosecutes the people responsible for these acts.

Tort law definitely considers victim behaviour, as well as takes into consideration contributory negligence. Also, if the wrongdoer can prove that the victim himself/herself called upon the act to be committed, and thereby the wrong being done, it can act as a defence against the victim and the wrongdoer can be free of liability.

8. Liability standards in tort law are vague; a claim can arise on negligence of any kind. But criminal law lays down detailed acts, which constitute crime. Punishments in criminal law are severe, and it is important to construe the provisions of penal laws strictly, so that every other person does not fall under the ambit of any provision of criminal law. Tort law provides umbrella terms for certain acts, which may include acts which are not expressly mentioned or have not been held as wrong in previous cases.

9. Flexibility is another important aspect of tort law, which implies that it can be changed easily, according to the socio-economic conditions of a society. Criminal law, on the other hand, is rigid, and is difficult to amend. Crimes are added more than they are erased.

10. Defences in criminal law exist more readily than in tort. For example, a defence of insanity is valid in criminal law, but not in tort. The treatment of children is also different: a child may be liable for a tort but cannot be made liable up till a certain age for any crime that he may commit.

Procedural Differences Between Tort And Crime

The procedure followed in criminal law is that an accused goes to trial, where, on the basis of evidence presented by the victim, it is decided whether the accused is guilty or not. Because intention usually exists in the commission of the crime, the punishment given is of a serious nature, such as imprisonment. Fines are sometimes attached with imprisonment sentences, but in petty cases such as theft of a minimal amount resulting in almost no harm, the court may leave the offender after ordering him/her to pay some amount of fine.

In tort law, the damage caused to the victim, to the body or property, is ascertained. Accordingly, the compensation, often termed as damages, are ordered to be paid by the offender to the victim. Usually, actual damages are paid to the victim, with certain cases of exemplary damages, and sentencing of any kind does not take place because tort is more of a private wrong, i.e. wrong caused to a certain individual and not the public in general (as opposed to criminal law).

Conclusion

Despite the differences, crime and tort are essentially similar. Certain crimes are also torts, such as defamation. In such cases, the wrongdoer can be prosecuted for the offence, as well as held liable for the tort, which means that remedies are not exclusive of each other, but are concurrent. Both the laws have erupted from a common system, and both reflect the necessity to repair the relationship between the victim and the wrongdoer. However, the gravity of the offence is what forms the line of separation between the two, and it is from this that other differences branch out. Indian laws need to work more in the field of tort law, and create remedies for private wrongs as well.

FAQs on Difference Between Tort And Crime

What is a tort?

A tort can be said to be a civil wrong, but it takes into account the factor of negligence on part of the wrongdoer, and the wrong caused may result in some harm to the victim, to either his person, for example defamation, or his property, for example accident. There is no prosecution for the act because it is not of a grave nature or has widespread impact, as it is committed against an individual. The wrongdoer is asked to pay damages for the harm caused.

What is the fundamental difference between crime and tort?

The gravity of the offence is what distinguishes crime from tort, because crimes are of more serious nature than torts. Crimes are wrongful acts against the whole society, such as theft, whereas torts are against a private individual, such as creating nuisance.

In case an act includes both, the violation of criminal law and tort law, is it viable to give both the remedies to the victim instead of allowing him/her to elect only one?

Often cases come before courts where the offender has not only committed an offence, but has also breached some duty under tort. For example, a person causes a road accident by reason of rash driving, having the knowledge that such act may cause injury to a person, and the victim receives grievous hurt to his/her body, as well as extensive damage to his/her vehicle. In such cases, it will be no good if the offender were put behind bars, because the property of the victim has also been damaged. The victim would want to bring a claim against the offender and demand compensation for the harm caused to his property, along with the offender being sent to prison for the grievous hurt that he/she caused, resulting in violation of criminal law.

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Zara Suhail Ahmed

Zahra is a student at Aligarh Muslim University, pursuing a 5-year B.A. LLB course. Currently in her 4th year, Zahra opted for Law after completing most part of her schooling from Cambridge School, New Delhi. Zahra has interned under a few lawyers and firms, participated in various moot courts and similar events, and is proficient in research and written content. A strong believer that education is the greatest virtue, Zahra seeks to learn from every platform and individual, whether working alone or as a team. Although Zahra is keenly interested to pursue ADR (Alternate Dispute Resolution) as a career, she has kept her options open and is interested in examining the different career prospects that her profession has to offer. Zahra has diversified interests apart from her professional life as well. Not only a successful lawyer, but she also aspires to become a productive human being.