Nature, Definition & Essential Elements of Tort PDF

**Nature and Definition of Tort** **Tort** - French term which means \'wrong\' in English. Origin of \'tort\'- **Tortum** (Latin word meaning \'twist\') Everyone is expected to behave in a straightforward manner and when one deviates from this straight path into crooked ways, he has committed a t...

**Nature and Definition of Tort** **Tort** - French term which means \'wrong\' in English. Origin of \'tort\'- **Tortum** (Latin word meaning \'twist\') Everyone is expected to behave in a straightforward manner and when one deviates from this straight path into crooked ways, he has committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. We in India majorly follow English tort law and most of the case laws we will study would also be English cases because In India there is very little tort litigation, the reasons might be that people are not aware of their rights and even if they are aware, people would rarely want to be involved in a court case in India until the matter is really serious. **Definition of Tort:** **Salmond** - \"It is a civil wrong for which the remedy is 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.\". **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 redressable by an action for unliquidated damages.\" **Fraser** - \"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.\" The basic idea which is indicated by these definitions is Firstly, tort is a civil wrong, and secondly, every civil wrong is not a tort. There are other civil wrongs also, the important of which are a breach of contract and breach of trust. The definition of The Limitation Act, 1963 is also residuary *Section 2 (m), the Limitation Act, 1963 \"Tort means a civil wrang which is not exclusively a breach of contract or breach of trust.* **Tort v. Torts** The Law of Tort, i.e., Is every wrongful act, for which there is no justification or excuse to be treated as a tort; (Winfield) *Ex. if I injure my neighbour, he can sue me in tort whether the wrong happens to have particular name like assault, battery, deceit, slander, or whether it has no special title at all, and I shall be liable if I cannot prove lawful justification.* The Law of Torts, consisting only of a number of specific wrongs beyond which the liability under this branch of law cannot arise, **(Salmond, Pigeon-Hole theory)** *Ex. If I commit an act and my act cannot be put into any of the pre decided torts then I have committed no tort. If there is no pigeon-hole in which the plaintiff\'s case could fit in, the defendant has committed no tort.* **Classification of Torts -- Based on Fault** - - - **Difference between Tort and Crime** +-----------------------------------+-----------------------------------+ | **Tort** | **Crime** | +===================================+===================================+ | 1. 2. 3. 4. 5. 6. | 1. 2. 3. 4. 5. 6. | +-----------------------------------+-----------------------------------+ **Overlap between areas** There are various wrongs which find their place both under criminal law and law of torts, some examples of such wrongs are Assault, Defamation, Negligence, Conspiracy and Nuisance. The definition of anyone of these wrongs may be different under civil and criminal laws. Also, the rules applicable in case of tort are generally different from those in the case of crime. For example, in the case of tortious liability for the wrong of defamation, truth is in itself a defence, whereas in an action for the offence of defamation, the defence of truth can be taken if the publication was made for public good. - **Difference between Tort and Contract** +-----------------------------------+-----------------------------------+ | **Tort** | **Contract** | +===================================+===================================+ | 1. 2. 3. 4. 5. | 1. 2. 3. 4. 5. | +-----------------------------------+-----------------------------------+ **Essential Elements of Tort** The law of torts is fashioned as an instrument for making people adhere to the standards of reasonable behaviour and respect the rights and interests of one another. This it does by protecting interests and by providing for situations when a person whose protected interest is violated can recover compensation for the loss suffered by him from the person who has violated the same. By interest here is meant a claim, want or desire of a human being or group of human beings seeks to satisfy, and of which, therefore the ordering of human relations in civilized society must take account. It is however, obvious that every want or desire of a person cannot be protected nor can a person claim that whenever he suffers loss he should be compensated by the person who is the author of the loss. The law, therefore, determines what interests need protection and it also holds the balance when there is a conflict of protected interests. Every wrongful act is not a tort. To constitute a tort: - - - 1. Act which prima facie looks innocent may become tortious, if it invades the legal right of another person. In **Rogers v. Ranjendro Dutt**, the court held that, the act complained of should, under the circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him in some legal right; merely that it will however directly, do him harm in his interest is not enough. A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are very numerous. They may be divided again into public rights and private rights. To every right, there corresponds a legal duty or obligation. This obligation consists in performing some act or refraining from performing an act. Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty. 2. In general, a tort consists of some act done by a person who causes injury to another, for which damages are claimed by the latter against the former. In this connection we must have a clear notion with regard to the words damage and damages. The word damage is used in the ordinary sense of injury or loss or deprivation of some kind, whereas damages mean the compensation claimed by the injured party and awarded by the court. Damages are claimed and awarded by the court to the parties. The word injury is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not. The real significance of a legal damage is illustrated by two maxims, namely: Damnum Sine Injuria and Injuria Sine Damnum. i. **[Injuria]** means infringement of a legal right **[Damnum]** means substantial harm, loss or damage in respect of money, comfort, health or the like **[Sine]** means without This means an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of action. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right. Every person has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of special damage. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. This principle was firmly established by the election case of Ashby v. White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The candidate for whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff. - - ii. There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage without injury. Damage without breach of a legal right will not constitute a tort. They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one's own premises. In Gloucester Grammar School Master Case, it had been held that the plaintiff school master had no right to complain of the opening of a new school. The damage suffered was mere damnum absque injuria or damage without injury. Acton v. Blundell, in which a mill owner drained off underground water running into the plaintiff's well, fully illustrate that no action lies for mere damage, however substantial, caused without the violation of some right. There are moral wrongs for which the law gives no remedy, though they cause great loss or detriment. Los or detriment is not a good ground of action unless it is the result of a species of wrong of which the law takes no cognizance. - - - - iii. The law of torts is said to be a development of the maxim ubi jus ibi remedium or 'there is no wrong without a remedy'. If a man has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed, it is a vain thing to imagine a right without remedy; want of right and want of remedy are reciprocal. Where there is no legal remedy there is no wrong. This principle has been established for the first time in the leading case of ***Asbhy v. White.***