Khushi Pandey, a 1st Year student of, the Army Institute of Law, Mohali has written this Article on “Introduction to Law of Torts”
(1) INTRODUCTION
The law of torts is generally a less-known branch of law in India. Suppose, one fine day you are walking down a street a man with his car bumped at you, or suppose you consumed the fruits of a poisonous tree whose branches were projecting out of the owner’s premises, or maybe you suffered an injury due to the non-natural use of land of your neighbour. Now the question arises where you will seek compensation? under which law you will seek compensation or damages? where you will approach? Etc. The answer to all these questions lies in the Law of Torts. Under the law of Torts, you can seek damages or compensation to redeem the losses suffered by you. Here comes the role of the Law of Torts into play.
(2) MEANING OF LAW OF TORTS
The word ‘Tort’ is derived from the Latin word ‘Tortum’ which literally means twisted, crooked, and unlawful. It means a tort is an act that is not straight but rather unlawful, crooked and twisted.
Wrongs are of two types
- Civil wrongs
- Criminal wrongs
Civil wrongs are further divided into three parts:-
- Tort
- Breach of contract
- Breach of trust
| Type of Civil Wrong | Description |
|---|---|
| Tort | A wrongful act or omission that causes harm to another person or property, such as negligence, defamation, or intentional harm. Tort law allows individuals to seek compensation for damages caused by the wrongdoer. Examples of torts include car accidents, slips and falls, and medical malpractice. |
| Contract | A civil wrong occurs when one or more parties fail to fulfil the terms of a legally binding agreement. Contract law allows individuals to seek remedies for the breach of contract, including damages, specific performance, and cancellation of the contract. Examples of contract breaches include failure to pay for goods or services, failure to deliver goods as promised, and failure to perform work as agreed. |
| Trust | A civil wrong occurs when a trustee fails to fulfil their fiduciary duty to the beneficiary of a trust. Trust law allows beneficiaries to seek remedies for breach of trust, including damages, removal of the trustee, and court-ordered accounting. Examples of breach of trust include mismanagement of trust assets, failure to make required distributions, and self-dealing by the trustee. |
Law of torts is a civil wrong that is exclusively not a breach of contract and a breach of trust which gives rise to unliquidated damages.
(3) DEFINITIONS OF TORT LAW
Salmond
Salmond defined the law of Torts as “It is a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of the contract or the breach of the trust or other merely equitable obligation.”
Winfield
Winfield mentions, “Tortious liability arises from the breach of duty primarily fixed by the law: this duty is towards the persons generally and its breach is redressable by an action for unliquidated damages.”
Fraser
Fraser defined tort as “It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party”.
Section 2(m ) of the Limitation Act, 1963
“ Tort means a civil wrong which is exclusively not a breach of contract and breach of trust.
The basic which is indicated by these definitions is – Firstly, a tort is a civil wrong, secondly, every civil wrong is not a tort. There are other civil wrongs also, the importance of which are a breach of contract and breach of trust.
(4) NATURE OF TORT
A tort is a civil wrong
Tort belongs to the category of civil wrongs. The basic nature of civil wrong is different from criminal wrong. In case of a civil wrong, the injured party, i.e., the plaintiff, institutes civil proceedings against the wrongdoer i.e., the defendant. In such a case, the main remedy is damages. The plaintiff is compensated by the defendant for the injury caused to him by the defendant. In the case of criminal wrong, on the other hand, criminal proceedings against the wrongdoer are brought by the state.
Moreover in a criminal wrong, the individual, who is the victim of the crime, i.e., the sufferer is not compensated. Justice is administered by punishing the wrongdoer in such a case. It is however possible that the same act done by a person may result in two wrongs, and criminal remedies would concurrently be available. There would be a civil action requiring the defendant to pay compensation. As well as a criminal awarding punishment to the wrongdoer.
A tort is other than a mere breach of trust and breach of contract
A tort is a civil wrong which is not exclusively any other kind of civil wrong. If we find that the only wrong is a mere breach of contract or breach of trust, then obviously it would not be considered to be a tort. Thus, if a person agrees to purchase. Thus, if a person agrees to purchase a radio set and thereafter does not fulfil his obligation, the wrong will be a mere breach of contract.
It is only by process of elimination that we may be able to see whether the wrong is civil or criminal. If it is a civil wrong it has to be further seen if it exclusively belongs to another recognized category of civil wrongs, like a breach of contract or breach of trust. If it is found that it is neither a mere breach of contract nor any other civil wrong, then we can say that the wrong is a ‘tort’.
A tort is redressible through unliquidated damages
Damages are the most important remedy for a tort. After the wrong has been committed, generally, it is the monetary compensation that may satisfy the injured party. After the commission of the wrong, it is generally not possible to undo the harm which has already been caused. For example, if the reputation of a person has been injured, the original position cannot be restored back. The only thing which can be done in such a case is to see what is the money equivalent to the harm by way of defamation and the sum so arrived at and asked to be paid by the defendant to the plaintiff.
There are other remedies also which could be available when the tort is committed. It is also just possible that sometimes the other remedies may be more effective than the way of damages. In cases of a continuing wrong like a nuisance, the plaintiff may prioritize seeking a remedy through an injunction. The injunction would be aimed at stopping the continuance of the nuisance. This may be preferred over claiming compensation periodically. Allowing the nuisance to continue could result in greater harm or inconvenience to the plaintiff.
Unliquidated Form of Damages
Damages in the case of a tort are unliquidated. It is this fact that enables us to distinguish tort from other civil wrongs, like a breach of contract or breach of trust, where the damages may be liquidated. Liquidated damages mean such compensation which has been previously determined or agreed to by the parties. When the compensation has not been so determined but the determination of the same is left to the discretion of the court, the damages are said to be unliquidated. Generally, the parties are not known to each other until the tort is committed. Moreover, it is difficult to visualize beforehand the quantum of loss in the case of a tort. Therefore, the damages to be paid are left to be determined at the discretion of the court. Such damages, therefore, are unliquidated.
For an understanding of the Different Types of Tort Detailed Articles Refer to: https://sociallawstoday.com/different-types-of-torts-under-tort-/
(5) ESSENTIAL OF TORT
To constitute a tort, it is essential that the following two conditions are satisfied:
- There must be some act or omission on the part of the defendant
- The act or omission should result in legal damage (injuria), ie, violation of a legal right vested in the plaintiff
(1) Act or Omission
To be liable for a tort, one must have committed an unexpected act. He must have omitted to do something which he was supposed to do. Either a positive wrongful act or an omission that is illegally made will make a person liable. For example, If a commits the act of trespass or publishes a statement defaming another person, or wrongfully detains another person, he can be made liable for trespass, defamation, or false imprisonment, as the case may be. Similarly, when there is a legal duty to do some activities and one fails to perform that duty, he can be made liable for such omission.
In Glasgow Corp. v Taylor[1] The corporation which maintains a public park fails to put proper fencing to keep the children away from a poisonous tree and a child plucks and eats the fruits of the poisonous tree and dies. The Corporation was held liable for such omission.
In Municipal Corporation of Delhi v Subhagwanti[2] The Municipal Corporation, having control of a clock tower in the heart of the city does not keep it in proper repairs and the falling of the same results in the death of a number of persons. The Corporation was held liable for its omission to take care of.
(2) Legal Damage–
In order to be successful in an action for tort, the plaintiff has to prove that there has been legal damage caused to him. In other words, it has got to be proved that there was a wrongful act or omission causing a breach of a legal duty or the violation of a legal right vested in the plaintiff. Unless there has been a violation of a legal right, there can be no action under the law of torts.
If there has been a violation of a legal right, the same is actionable whether, as a consequence thereof, the plaintiff has suffered any loss or not. This is expressed by the maxim “Injuria sine damno.” Injuria means infringement of a right conferred by law on the plaintiff or an unauthorized interference, howsoever trivial, with the plaintiff’s right. Damnum means substantial harm, loss, or damage in respect of money, comfort, health, or the like.
Thus, when there has been injuria or the violation of a legal right and the same has not been coupled with a damnum or harm to the plaintiff, the plaintiff can still go to the court of law because no violation of a legal right should go unredressed.
Injuria sine damno
It means violation of a legal right without causing any harm, loss, or damage to the plaintiff. There are two kinds of torts. Firstly, those torts are actionable per se actionable without proof of any damage or loss. For instance, trespass to land is actionable even though no damage has been caused as a result of the trespass. Secondly, the torts are actionable only on the proof of some damage caused by an act.
Ashby v. White[3]
A leading case explaining the maxim injuria sine damno. In this case, the plaintiff succeeded in his action, even though the defendant’s actions did not cause any damage. The plaintiff was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully refused to take the plaintiff’s vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won the election in spite of that. It was held that the defendant was liable.
Bhim Singh v. State of J. & K[4]
The petitioner, an M.L.A. of J & K. Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. He was not produced before the Magistrate within the requisite period. As a consequence of this, the member was deprived of his constitutional right to attend the Assembly session. There was also a violation of the fundamental right to personal liberty guaranteed under article 21 of the Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to Rs. 50,000 were awarded to him.
Damnum sine injuria
It means damage that is not coupled with unauthorized interference with the plaintiff’s lawful right. Causing damage, however substantial, to another person is not actionable in law unless there is also a violation of a legal right of the plaintiff. This is generally so when the exercise of legal right by one results in consequential harm to the other. “The mere fact that a man is injured by another’s act gives in itself no cause of action. If the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is exercising a legal right.”
Gloucester Grammar School Case[5]
It explains the point. There, the defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them. Hankford J. said: “Damnum may be abseque injuria as if I have a mill and my neighbor builds another mill whereby the profit of my mill is diminished, I shall have no action against him, although I am damaged……but if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives”.
(6)CONCLUSION
The tort is a civil wrong that gives rise to unliquidated damages. The tort must be an act or omission, other than a breach of contract and breach of trust for which the remedy lies in unliquidated damages. There is various reason for the slow development of the law of tort, some are as follows costly justice, unawareness regarding this branch of law, time consumption, etc.
REFERENCES
1)Law of Torts, Dr RK Bangia
[1] (1922) 1 A.C 44
[2] AIR 1966 SC 1750
[3] (1703) 92 ER 126, (1703) 2 Ld Raym 938, (1703) 1 Sm LC (13th Edn) 253
[4] AIR 1986 SC 494
[5] (1410) Y.B ii Hen 4, to 47 P121; 36 Digest (Repl) 252
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