Anatomy of Law of Tort

The word tort has been derived from the Latin term tortum, which means to twist. It includes that conduct which is not straight or lawful.

It is equivalent to the English term wrong.  Tort is the breach of duty recognized by law.

Definition of Tort-

-Salmond- it is a civil wrong for which the remedy is a common law action for un liquidated damages and which is not exclusively the breach of a contract or a breach of a trust or other merely equitable obligations.

Winfield- tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is repressible by an action for un liquidated damages.

Analysis of definitions

Tort is a civil Wong.
Every civil wrong is not a trot like breach of contract and breach of trust
Tort is redressable  by an action for un liquidated damages

We may define tort as a civil wrong which is redressable by an action for un liquidated damages and which is other than a mere breach of contract or breach of trust

Tort is a civil Wrong- Tort belongs to the category of civil wrongs. The basic nature of civil wrong is different from a criminal wrong. In the case of a civil wrong the injured party institutes civil proceedings against the wrongdoer.

The Tort is other than a breach of contract– Tort is that civil wrong which is not exclusively and other kind of civil wrong like breach of contract or breach of trust.

Tort is redressableby an action for unliquidated damages- Damage is the most important remedy for a tort. Generally it is the money compensation which may satisfy the injured party. After the commission of the wrong , it is generally not possible to undo the harm which was already been caused. The only thing which can be done is that is the money equivalent to the harm. Damage in the case of Tort are unliquidated means a compensation which had not been previously determined.

A scientific definition of tort is not possible; Tort can be defined by mentioning various elements the presence of which could be considered to be tort.

All the definition of tort follow the negative approach. It explain the trout by distinguishing it from other wrong or by mentioning some of the elements, which are found in a tort, but are not there in other wrong.

The term tort in common law systems for a civil actionable harm or wrong.

Analytically  Meaning of Tort -the law of tort is a branch of the law of obligations, where the obligation to refrain from harm to another and, if harm is done, to repair it or compensate for it, are imposed not by agreement.

Social Meaning of Tort- the functions of tort is to shift loss sustained by one to the person who is deemed t have caused it or been responsible for its happenings.

Historically- there was no general principle of tortuous liability, but Kings court gave remedies for various forms of trespass for direct injuries.

Nature of Tort- the nature of tort can be understood by distinguishing

Tort and Crime
Tort and duty in other civil wrongs.

Basis

Tort

Crime

Species

Civil wrong

Criminal wrong

Effect

Plaintiff is the injured party

Victim is the injured party

Violation of Rights

Private right and duty

Public rights and duties

Remedy

Compensation in the form of money or other wise

Punishment

Parties

Individual

Individual and State

Purpose

To compensate the loss suffered by him

To protect the society by preventive and deterring effect.

Nature of punishment

Competitively less, or lighter

Heavy and serious

Intention factor

Intention generally immaterial

Intention or mens rea is play an important role

Burden of proof

Lies with the complaint or injured

Lies with the state.

Principle of Natural justice

Plan an important role in fixing the wrong doer liability

Strict rules principles and procedure followed in fixing the wrong doer liability.

Codification

It is not the codify law

It is the codify law.

Moral element

Moral element has no place in tort. the wrong doer punished by way of damages for the better social welfare and efficiency.

To some extant moral elements are treated in the same.

 

 

Basis

Tort

Contract / Quasi Contract

Nature of Damage

Unliquidated damage, means the damage which has not been agreed upon before

Liquidated damages, which has been agreed upon on non discharging the contract liability

Nature of Rights

In tort the violation of rights in rem, i.e. of a right vested in public generally.

In case of contract in the right in personam, i.e. a right available only against some determinate person or body of person.

Motive

In tort some time in tort motive play an important role

In contract motive has no place, jut the breach of contractual obligation is the consideration point.

Codification of law

There is no codification of law in tort

It is a codify law.

Non occurrence damages

Injured may be entitle for non occurrence damages, which he has not actually suffered.

The injured party is only entitle for actual damages.

Kind of damages

Exemplary or vindictive damages are awarded in tort

Such kind of damage are not awarded in contract.

 

Law of Tort and law of Torts

Law of tort– every wrongfulact, for which there is no justification or excuse to be treated as tort.

Law of torts-consist only of a number of specific wrongbeyond which the liability under law cannot  arises.

Essentials of Tort-

Act of omission- in order to make a person liable under tortuous liability he must have done or omission unlawfully which he was supposed to do.

For example- A cannot allowed to trespass into once’s  property.

Legal Damage- the second condition in tort is there must be some legal damage. Unless there has been no violation of a legal right there is no action or damages claimed under law of tort.

It has been expressed by the maxim – injuria sine dmno and damnum sine injuria.

– injuria sine dmno and damnum sine injuria

The principle rules that –every wrong doer should pay the compensation to the aggrieved party.

In some cases there are plaintiff sustained injures but his legal rights has not been violated which is called demno sine injuria in such case no damage are payable.

In some cases the plaintiff does not face any damages, but his legal right is violated. This is called injuria sin demnum.

Injuria- Legal injury

Sine- without.

Damnum- Damage

Injuria sine demno- means- violation of legal right without causing any legal harm to plaintiff.

For example-

Trespass- trespass to another land does not cause any harm, loss or damage but it violate the right of privacy of another.

Defamation-in this case as well one does not harm anybody directly but it violet the rights of another.

Ashby V white-

Brief Fact- the plaintiff was a qualified voter at a parliamentary election. The defendant was a returning officer. The defendant wrongfully refused to plaintiff vote. The candidate to whom the plaintiff wanted to vote won the election. In this case the plaintiff did not suffered any damage or harm. But his legal right has been violated.

Principle laid down- every injury imports a damage,  when a person hindered of onece right.

Bhim sing V. State of J.k

Brif Fact- Bhim sing was an MLA of J&K Assembly, he has been wrongfully detained by the police while he was going to attend the assembly session. The SC held that it is against the FR to personal liberty under Art 21.

 

In above cases reference there is no direct damage or loss but the plaintiff sustain the violation of his legal rights.

Damnum Sine Injuria

Damnum – Damage

Sine- without

Injuria- legal injury.

Meaning– causing  damage without legal injury.

Gloucester Grammar School Case-

Brief Fact-the plaintiff were maintain a school. They charged X amount per student. The defendant established a rival school near to plaintiff school. Due to the competition defendants reduce the free from X to X-12 per student. It cause a considerable loss to plaintiff.

Judgment- Plaintiff had no remedy for the loss thus suffered by them.

the court held that if I have a mill and my neighbor builds another mill and my profit of my mill diminished, I shall have no right to action against him, unless the neighbor disturb me or create any nuisance.

Acton vs. Blundel

The defendants dug the coal pit of their own. This affected the plaintiff well, at a distance of about 1 mile. The defendant not held liable.