Introduction to Law of Torts: Introduction The word tort is of French origin and has been derived from the Latin term ‘Tortum’. T…
Introduction to Law of Torts:
Introduction
The word tort is of French origin and has been derived from
the Latin term ‘Tortum’.
the Latin term ‘Tortum’.
Tortum = To twist, a conduct which is tortious or twisted.
The English word ‘wrong’ is also an appropriate term for tort.
According to the legal system of our country wrongful acts can be widely
classified in two categories i.e. Civil wrong and Criminal wrong.
According to the legal system of our country wrongful acts can be widely
classified in two categories i.e. Civil wrong and Criminal wrong.
Tort falls in category of civil wrong, but not all civil
wrongs are tort. Those civil wrongs which do not fit in any defined category of
civil wrongs are torts.
wrongs are tort. Those civil wrongs which do not fit in any defined category of
civil wrongs are torts.
Every individual have certain legal rights and duties
towards each other. These legal rights and legal duties correlate with each
other. If any person infringes the legal right of other person that wrong may
be called as tort.
towards each other. These legal rights and legal duties correlate with each
other. If any person infringes the legal right of other person that wrong may
be called as tort.
Example: Trespass
to property, which means entering into the premises of some other person
without seeking his permission.
to property, which means entering into the premises of some other person
without seeking his permission.
The Tort law is not codified. The Subject matter is
classified in various branches. Tort is also called as an inanimate tree and
its branches can be shown in the tree structure.
classified in various branches. Tort is also called as an inanimate tree and
its branches can be shown in the tree structure.
Meaning
and Characteristics
and Characteristics
In Tort the loss incurred by the other party is indemnified
by the wrongdoer. The loss incurred is calculated in terms of monetary loss, loss
of health and comfort.
by the wrongdoer. The loss incurred is calculated in terms of monetary loss, loss
of health and comfort.
The essence of law of tort is if a person violates the legal
rights vested in another person, then he has to compensate the other person for
his wrongful act. Loss in monetary term is not essential, in fact only
infringement of legal right will conclude in tort.
rights vested in another person, then he has to compensate the other person for
his wrongful act. Loss in monetary term is not essential, in fact only
infringement of legal right will conclude in tort.
Example: (a) ‘A’
has the right to cast vote and if ‘B’ without any lawful cause stops him to
cast his vote it will result in a Tort.
has the right to cast vote and if ‘B’ without any lawful cause stops him to
cast his vote it will result in a Tort.
‘A’ has a legal right to enjoy a pollution free environment
and if ‘B’ causes any disturbance then it is a Tort.
and if ‘B’ causes any disturbance then it is a Tort.
Characteristics
1. Tort is a civil wrong.
2. It is redressible by an action for unliquidated damages.
1. Definitions
According to Winfield-
“Tortious liability arises from the breach of a duty primary
fixed by the law this duty is towards the persons generally and its breach is
redressible by an action for unliquidated damages”.
fixed by the law this duty is towards the persons generally and its breach is
redressible by an action for unliquidated damages”.
According to Salmond-
“Tort is a civil wrong for which the remedy in a common law
action for unliquidated damages and which is not exclusively the breach of a
contract or the breach of a trust or other merely equitable obligation”.
action for unliquidated damages and which is not exclusively the breach of a
contract or the breach of a trust or other merely equitable obligation”.
Essentials of Tort
1. There must be a wrongful act or omission on the part of a
person.
person.
2. That wrongful act or omission must result in legal damage to
other.
other.
3. The wrongful act or omission must be of such a nature as to
give rise to a legal remedy.
give rise to a legal remedy.
Explanation
(a) A person can be held liable if the person does not perform
his legal duty or violates the legal rights of other person. Violation of
moral, social or religious duty does not constitute tort.
his legal duty or violates the legal rights of other person. Violation of
moral, social or religious duty does not constitute tort.
Example: (a) ‘A’ is a very good friend of ‘B’ and invites him for
evening tea. B accepts it but in the evening he forgets to visit ‘A’s house.
The question is whether ‘B’ committed a civil wrong or not?
evening tea. B accepts it but in the evening he forgets to visit ‘A’s house.
The question is whether ‘B’ committed a civil wrong or not?
(b) ‘A’ does not save ‘B’ from drowning in spite of continuous
calls made by ‘B’ here ‘A’ is a passerby or a visitor he is not a life guard?
Do you think A has committed any civil wrong? Here rise two questions.
calls made by ‘B’ here ‘A’ is a passerby or a visitor he is not a life guard?
Do you think A has committed any civil wrong? Here rise two questions.
1.
Whether ‘A’ owes a legal duty to save
‘B’?
Whether ‘A’ owes a legal duty to save
‘B’?
2.
Whether ‘A’ violates any legal right of
‘B’?
Whether ‘A’ violates any legal right of
‘B’?
(c) A family offers afternoon meal in a temple as a custom but
stops doing it after sometime. Does it constitute any wrong?
stops doing it after sometime. Does it constitute any wrong?
All
the above examples are of social, moral and religious wrongs they are not
Torts.
the above examples are of social, moral and religious wrongs they are not
Torts.
2.
Legal damage
Legal damage
Violation of legal
right vested in the plaintiff. It is not essential that party suffers pecuniary
loss; mere infringement of wrong doer leads to having to compensate the other
party.
right vested in the plaintiff. It is not essential that party suffers pecuniary
loss; mere infringement of wrong doer leads to having to compensate the other
party.
There are two important legal maxims.
1. Injuria sine Damnum
2. Damnum sine Injuria
Injuria – Legal Injury ie. Violation of legal right of
plaintiff
plaintiff
Sine – without
Damnum – Damage in terms of comfort, money and health.
Meaning there by Injuria sine Damnum i.e legal Injury
without damage and on the other hand Damnum sine Injuria which means damage
without legal Injury.
without damage and on the other hand Damnum sine Injuria which means damage
without legal Injury.
In Torts Injuria sine damnun is compensable which means that
compensation be awarded in this case but in damage without Injuria ie. Damnun
sine Injuria no compensation is awarded.
compensation be awarded in this case but in damage without Injuria ie. Damnun
sine Injuria no compensation is awarded.
3. Legal Remedy
“Ubi Jus Ibi Remedium”
Where there is a right there is a remedy.
It means if the plaintiff (Sufferer) has a right, he must
get compensation.
get compensation.
Malice
and Motive and their role in Torts.
and Motive and their role in Torts.
Malice i.e. Mental element.
In general there is no requirement of showing a mental
element to prove a wrong in tort except in cases of malicious prosecution,
assault, battery and false imprisonment. Mental element i.e. Malice is
important here as it is one of the factors in enhancing the damages.
element to prove a wrong in tort except in cases of malicious prosecution,
assault, battery and false imprisonment. Mental element i.e. Malice is
important here as it is one of the factors in enhancing the damages.
The test is of ordinary prudence and standard of job
required to be performed by the individual in circumstances.
required to be performed by the individual in circumstances.
Example: – In tort
of Negligence conduct of a person is very important.
of Negligence conduct of a person is very important.
Case Law : 1) Ashby Vs White
In this case, the plaintiff was a valid voter at a
Parliamentary election. The defendant, the Returning Officer at a voting booth,
wrongfully disallowed the plaintiff from exercising his franchise. Now, there
was no loss, monetary or otherwise, suffered by the plaintiff. Even the
candidate for whom, he wanted to vote, won the elections. Nevertheless, the
plaintiff succeeded in his action against the defendant, for the simple reason
that the Plaintiff’s legal right was violated.
Parliamentary election. The defendant, the Returning Officer at a voting booth,
wrongfully disallowed the plaintiff from exercising his franchise. Now, there
was no loss, monetary or otherwise, suffered by the plaintiff. Even the
candidate for whom, he wanted to vote, won the elections. Nevertheless, the
plaintiff succeeded in his action against the defendant, for the simple reason
that the Plaintiff’s legal right was violated.
Case Law : 2) Bhim Singh Vs State of J
& K
& K
In this case an M.L.A. of the J.K. Assembly, the plaintiff
was wrongfully arrested & detained by the police, while he was proceeding
to the Assembly. Further, he was not produced before the Magistrate within the
stipulated period. This act was a violation of both his fundamental and legal
right. Finally it was held that the State was liable and was compelled to pay
damages to Mr. Bhim Singh.
was wrongfully arrested & detained by the police, while he was proceeding
to the Assembly. Further, he was not produced before the Magistrate within the
stipulated period. This act was a violation of both his fundamental and legal
right. Finally it was held that the State was liable and was compelled to pay
damages to Mr. Bhim Singh.
Case Law: 3) Gloucester Grammar School
In this case, the defendant, a school teacher set up a rival
school in the same locality. As he charged low fees, students dropped out of
plaintiff’s school and joined the defendant school; defendant had intended to
cause wrongful loss to him. It was held that the plaintiff had no remedy, as
there was no legal wrong committed by the defendant. Thus, in this case, you
see that there is monetary loss to the plaintiff, but there has been no
violation of his legal right. Hence, there is no case of tort.
school in the same locality. As he charged low fees, students dropped out of
plaintiff’s school and joined the defendant school; defendant had intended to
cause wrongful loss to him. It was held that the plaintiff had no remedy, as
there was no legal wrong committed by the defendant. Thus, in this case, you
see that there is monetary loss to the plaintiff, but there has been no
violation of his legal right. Hence, there is no case of tort.
Practice
Exercise:
Exercise:
1. The word tort has been derived from the Latin
word
word
A. Wrong
B. Totem
C. Tortum
D. Civil
Ans: C
2. Tort is a
A. Accident
B. Civil wrong
C. Criminal wrong
D. Murder
Ans: B
3. Tort law is not codified.
A. Yes
B. No
C. Maybe
D. None of the above
Ans: A
4. In Torts
the loss caused doesn’t have to be monetary
the loss caused doesn’t have to be monetary
A. Yes
B. No
C. Maybe
D. None of the above
Ans: A
5. A stops B from casting his vote in the
elections. Will A succeed in an action against B?
elections. Will A succeed in an action against B?
A. Yes
B. No
C. Maybe
D. None of the above
Ans: A
6. Torts are
redressible by an action for
redressible by an action for
A. Liquidated damages
B. Exemplary damages
C. Unliquidated damages
D. None of the above
Ans: C
7. The wrongful act or omission must result in
A. Legal damage
B. Any damage
C. Accident
D. Attempt
Ans: A
8. If Rama
invites her friend Priya for dinner but Priya doesn’t show up will it lead to a
civil wrong?
invites her friend Priya for dinner but Priya doesn’t show up will it lead to a
civil wrong?
A. Yes
B. No
C. All of the above
D. None of the above
Ans: B
9. If Ramesh
sees Ashok drowning and despite of the calls for help doesn’t do anything. Will
he be liable?
sees Ashok drowning and despite of the calls for help doesn’t do anything. Will
he be liable?
A. Yes
B. No
C. All of the above
D. None of the above
Ans: B
10. Rani gives money to the beggar on the street
every day. She suddenly stops. Will she be liable?
every day. She suddenly stops. Will she be liable?
A. Yes
B. No
C. All of the above
D. None of the above
Ans: B
11. What kind
of wrongs are not Torts?
of wrongs are not Torts?
A. Social
B. Moral
C. Religious
D. All of the above
Ans: D
12. Injuria
sine Damnum means
sine Damnum means
A. Legal injury without damage
B. Damage without legal Injury
C. No injury
D. All of the above
Ans: A
13. Damnum
sine Injuria
sine Injuria
A. Legal injury without damage
B. Damage without legal Injury
C. No injury
D. All of the above
Ans: A
14. In Torts
________________ is compensable.
________________ is compensable.
A. Injuria sine damnun
B. Damnum sine Injuria
C. Any injury
D. Any damage
Ans: A
15. Ubi Jus
Ibi Remedium means
Ibi Remedium means
A. Legal injury without damage
B. Damage without legal Injury
C. Where there is a right there is
a remedy
a remedy
D. None of the above
Ans: C
Ans: C
