DEFINITION AND NATURE OF TORT8 min read

By- Shivachandra

BACKGROUND

The word springs from the Latin word “tortum” which suggests “to twist”. As per the law dictionary tort which means “civil wrong”. The person who perpetrates tort is called “tort-feaser”.

The claimant has to suffer loss or harm due to the tortious act of tort-feaser, for his tortious act unliquidated damages are the only remedy.

DEFINITION OF TORT

Some of the Definitions of torts are:

As per Salmond “A tort is a civil wrong for which the remedy is an action for damages” and which isn’t exclusively the breach of contract or the breach of trust or reach of merely equitable obligation”.

As per Winfield, “Tortious liability arises from the breach of an obligation primarily fixed by the law, this obligation is towards the persons generally and its breach is redressible by an action for unliquidated damages.”

As per Clark and Lindsell, “Tort might be a wrong autonomous of contract that the acceptable remedy might be a standard law action.”

As per Section 2(m), the Limitation Act, 1963 “Tort means a civil wrong which isn‘t exclusively a breach of contract or breach of trust.”

By examination of numerous definitions, the ingredients of torts are:

  1. It is a civil wrong.
  2. Such civil wrong which is other than a breach of contract and breach of trust.
  3. Remedy for tort is unliquidated damages.

TORT IS A CIVIL WRONG

  • It relates to the class of civil wrongs.
  • In the case of a civil wrong, the aggrieved party initiates proceedings against the tort feaser for the remedy is  Unliquidated damages.
  • Aggrieved party is compensated by the Tort feaser for the apprehension caused to him.

CIVIL WRONG WHICH ARE OTHER THAN BREACH OF CONTRACT AND BREACH OF TRUST

Whether tort is civil wrong or not, the following steps need to be taken into examination.

  • Whether it is a civil wrong or not.
  • On examination, if it is a civil wrong, we need to cross-check that if it comes under the category of breach of contract, breach of trust.
  •  When the wrong does not belong to the above category only it is considered as tort, if it involves a breach of contract and breach of trust it does not comes under the ambit of tort.

REMEDY FOR TORT IS UNLIQUIDATED DAMAGES

The utmost important for the aggrieved party for the apprehension caused by the tort-feaser is unliquidated damages which will be given to the plaintiff by the defendant (tort feaser) on the order/judgment of the court.

Unliquidated damages are the damages which the compensation has been not determined previously or agreed by the parties but it is left to the direction of the court.

By through all the definitions. According to me, “tort is a civil wrong, which is in position to tarnish ones rights by another, that unliquidated damages are the remedy”.

READ ALSO: CONCEPT AND RELEVANCE OF CONSTITUTIONALISM

ESSENTIALS OF TORTS

The essentials of tort are:

WRONGFUL ACT OR OMISSION:

  • Wrongful act or Omission is the first essential ingredient in constituting a tort.
  • Individual must have performed a wrongful act, he must have not expected to do, or, he must have omitted to do something which he was supposed to do.
  • Individual liable for a tort he must have done some legal wrong that is, infringe the legal right of another person.
  • Wrongful act or omission must be observed by law.

Caselaw:   Municipal Corporation of Delhi Vs Subhagwati:

     The clock tower in the heart of the city was collapsed and many of the pedestrians had died due it the sudden collapse of the tower, the Municipal corporation has to maintain the tower, due to their omission such a catastrophe has occurred, the court held the municipal corporation is liable for the omission of the act.

LEGAL DAMAGE AND REMEDY:

  • Second important ingredient in constituting a tort is legal damage.
  • To prove an action for tort, the Apprehended party has to prove that there was a wrongful act or omission which caused breach of a legal duty or the violation of a legal right vested in aggrieved party.
  • If there have been  any violation of a legal right, the same is actionable whether the plaintiff has suffered any loss or not. This is expressed by the rule/ axiom,
  • Injuria sine damnum refers to infringement or violation of a legal private right of a person even though there is no actual loss or damage.
  • Damnum sine injuria means an actual and substantial loss without infringement of any legal right.

1. Injuria sine damnum:

     Injuria sine damnum refers to infringement or violation of a legal private right of a person, even though there is no actual loss or damage.

 The maxim provides for

(a) Transgress into legal right of a person.

(b) No actual loss or damage is required to prove.

(c) Transgression into private right is actionable per se.

Caselaw: Bhim Singh Vs State of J&K:

     The petitioner, is a resident of Jammu and Kashmir and he is also Member of Legislative assembly, during the time of assembly sittings, he was confined by the police to his home, which made this absence for the assembly sittings, for the act of the police, the petitioner filed suit against them for infringing on his Fundamental rights, where the petitioner has right to attend the assembly, for what he elected for by the people, the upheld the judgment in favour of Petitioner and a compensation of Rs: 50,000/- was provided.

2. Damnum sine injuria :

        Damnum sine injuria means without infringement of any legal rights the loss have been occured. In such case no action lies.

Caselaws: Gloucester Grammer School Case,

    The defendant, a schoolmaster, he had started a new school at the place where plaintiff is already running the school. Due to the competition by the defendant, the plaintiff had to chop down their fees. Held, the plaintiff had no remedy for the loss suffered by defendants as it comes under damnum sine injuria.

Chesmore Vs Richards:

        The plaintiff, a mill owner was utilizing the water for more than half century from a river stream which was usually supplied by the percolating underground water. The defendants dug a well on their land deep enough to prevent the larger volume of water getting toplaintiff’s stream. Held, that the plaintiff has no right of action since it had beena case of “damnum sine injuria”.

READ ALSO: CRIME AND STAGES IN COMMISSION OF A CRIME

NATURE OF TORT

  1. TORT AND CRIME:
    • Tort differs both in theory and procedure from a criminal offence.
    • Tort is a private wrong. Private wrong is that the infringement of civil right of private. It is comparatively less serious and labelled as civil wrong. where as crime is a public wrong. Public wrong is a violation or breach of rights and duties which affect the community, as a whole. It is a more serious wrong.
    • Remedy in law of tort is unliquidated damages whereas, in a criminal case the remedy is punishment.
    • In case of tort the suit is filed by injured or aggrieved party whereas, in case of criminal offence the complaint is filed in the name of State.
    • In case of tort the suit can be withdrawn at any time and compromise can be done with wrongdoer where as In case of crime the complaint cannot be withdrawn except in certain circumstances.
    • No codification in Law of Torts whereas the Criminal law is codified for example IPC, Cr.P.C.
    • In case of death of tort-feaser his legal representative can be sued except when the tort is defamation, personal injury not causing a death where as In case of death of offender, the suit is put to an end.
    • No separate statute deals with tort. Tort is based on judicial decisions whereas, the crimes are dealt in Indian Penal Code, 1860.
  2. TORT AND BREACH OF CONTRACT:
    • A tort is a transgression of a right in rem whereas, A breach of contract is an transgression of a right in personam.
    • In an action for tort, no Privity is needed or is required to be proved, whereas in a breach of contract, Privity between the parties must be proved.
    • In tort, measure of damages is different in various situations which may be nominal or exemplary. Whereas, in Breach of contract, damages are awarded in the form of compensation for pecuniary loss suffered.
  3. TORT AND BREACH OF TRUST:
    • Damages in a tort are unliquidated because the court decides the compensation, whereas Damages in breach of trust are liquidated.
    • Law of tort isn’t thought to be a division of the law of property where as Law of trust may be and is thought to be a division of the law of property.
  4. TORT AND QUASI CONTRACT:
    • When an individual gains some advantage/favor/gain to which some another person was entitled to, or by such advantage/ favor/gain another person suffers an undue loss, the law may compel the former to compensate the latter in respect of advantage so gained, albeit there’s no such contract. The law of quasi-contracts covers such responsibilities/ liabilities.




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