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Law of Torts
Law of Torts for CLAT and other law entrance exams
Meaning of a tort
The term ‘Tort’ is the French equivalent of the English word ‘wrong’ and the roman term ‘delicity’.
This word has been derived from the Latin term ‘tortum’ which means ‘twisted’ or ‘crooked’ act.
It is a conduct that is not straight or lawful but is twisted, crooked, and unlawful, causing an injury to a person.
A tort is a civil wrong and its law is uncodified.
Definition of Tort
Because the law of tort is still growing, it is based on common law and not on statute law and it is implicated historically with the procedure, these are some reasons for not having a satisfactory definition of tort.
Addison said that “It is not possible to give a scientific definition of tort”.
According to Street “No definition of tort at once logical and precise can be given”.
However, there are some definitions
In the words of Salmond, “a tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of contract, for the breach of trust, or for the breach of any other merely equitable obligation”.
Section-2(m) of the Indian Limitation Act, 1963, defines the term “tort” as “a civil wrong” which is exclusively a breach of trust or breach of contract”.
According to Fraser, “What is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party”.
According to PH Winfield, “ tortious liability arises from a breach of Duty, primarily fixed by the law, This duty is towards persons generally and its breach is redressible by an action for unliquidated damages”.
Essential elements for definitions of Tort
Duty primarily fixed by law
The line "Primary fixed by the law” means that the law imposes a duty on everybody’s shoulders to take care of so that any breach of the duty does not occur. A tort arises by the operation of law and not by the consent of any particular person.
Duty must be towards general people
Another feature of the duty is generality. Duty is general, on every person and liability may attach to any person who makes a breach of duty.
There must be a breach of duty
Breach of Duty means non-observance of the aforesaid duty. Liability may arise only when there is a breach of duty.
The breach of duty must be redressible by an action for unliquidated damages
The unliquidated damages simply mean any amount of damages as the court deems fit in its opinion. In tort, the amount of damages depends upon the discretion of the court. It is not fixed. It is in the discretion of the court to decide as to what amount of damages should be awarded to the plaintiff.
Liquidated damages are the damages that are already fixed while unliquidated are not fixed they are decided according to the court’s opinion.
General factors or essentials for tortious liability
There must be an act or omission which amounts to a civil wrong.
The act or omission should not be a breach of contract, breach of trust, etc.
The remedy for the wrongful act or omission should be an action for unliquidated damages.
Omission
Didn’t do what should be done.
Act
Did what should not be done.
Malfeasance, Nonfeasance, and Misfeasance
Malfeasance (Action)
Malfeasance applies to the commission of those unlawful acts which are actionable per se (in itself) and does not require proof of any ulterior motive or intention. Trespass is an example of malfeasance.
Nonfeasance (Inaction)
Nonfeasance applies to omission to perform some acts when there is some obligation to perform it and the person holds some duty of care towards it.
Not lighting a vehicle’s indicator before taking a turn on the road is an example of nonfeasance.
Misfeasance (Misaction)
It consists of the improper performance of an act which one has a legal right to do. Misfeasance of gratuitous undertaking imposes liability on the wrongdoer.
An example of it is negligence.
Vicarious liability
Vicarious means acting on another’s behalf.
Vicarious liability is the liability not for one’s own act, but for wrongs committed by others.
Example:
Liability of the master for wrongs committed by his servant.
Defamation
Defamation is a publication of a statement that tends to lower a person in the estimation of right-thinking members of society. Generally, to make someone shun or avoid in front of others.
Trespass to goods
Wrongfully physical interference with goods that are in the possession of another.
Example:
Someone uses your phone without your permission.
Trespass to land
When an individual or the object of an individual intentionally enters the land of another without any lawful excuse. It is actionable per se (in itself).
The party whose land is entered upon may sue even if no actual damage is suffered by the plaintiff.
Strict and Absolute Liability
No-fault liability
Legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault.
No-fault liability found in these two cases:
Strict Liability
Absolute Liability
Strict Liability
Liability without fault. The concept applies where a person is liable despite the absence of fault or negligence.
The rule of Strict Liability has evolved from the rule laid down in Rylands v Fletcher’s (1868) case.
Essentials
Some dangerous thing must have been brought in the land.
The thing must escape.
It must be a non-natural use of land.
Exceptions
Plaintiff’s own fault
Act of God.
Consent of plaintiff
Act of the third party
Statutory Authority
Absolute Liability
Strict liability without exceptions becomes Absolute Liability.
The principle of Absolute Liability was used in India in the case of M.C. Mehta.
The burden of proof rests solely on the defendant.
Difference between Strict and Absolute Liability
1. Strict liability arises from the non-natural use of land, whereas Absolute liability arises from hazardous activity.
2. Strict liability is subject to some defenses, whereas Absolute liability is not subject to any defenses.
Generally, substantial damages are awarded in strict liability, whereas in absolute liability, substantial and exemplary damages are awarded as well as depending upon the nature of the activity.
Refer to the case-law of:
M.C Mehta v. Union of India case.
General Defences
Plaintiff himself wrongdoer
Private Defence
Necessity
Inevitable Accident
Act of God
Mistake
Statutory Authority
Volenti non fit injuria
Legal Maxims
Injuria Sine Damno
The Maxim injuria sine damno means that, if a private right is infringed, the plaintiff will have a cause of action even if he or she has not suffered any loss, damage, or economic loss.
According to this maxim, infringement of a legal right is necessary and not the proof of actual loss or damage.
Injuria ➜ Infringement of right
Sine ➜ without
Damno Damage of property, goods/economic loss, physical loss
In this maxim, the term ‘injuria’ means infringement of a right, the term ‘sine’ means without and the terms ‘damno’ means damage. Then, the whole term “injuria sine damno’’ means infringement of legal right without any physical or economical damage or loss.
The plaintiff can take action if his/her legal right is infringed, no matter if he/she doesn’t suffer any economic or physical loss.
Leading case laws
Ashby v. White
In this case, the plaintiff was a qualified voter and the defendant was an officer.
The defendant, a returning officer, wrongfully refused to register a duly tendered vote of the plaintiff, who was a qualified voter. The candidate for whom the vote was sought to be tendered was elected and no loss was suffered by the rejection of the plaintiff’s vote. Held, that nevertheless, an action lay. The action was allowed on the ground that the violation of the plaintiff’s statutory right was an injury for which he must have a remedy and who is actionable without proof of pecuniary damage.
In the case of Lord Holt, CJ observed:
“Every injury imports damage, though it does not cost the party one farthing, and it is impossible to prove the contrary: for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right”.
Damnum sine injuria
Damnum 🡲 Damage of property, goods/economic loss, physical loss
Sine 🡲 Without
Injuria 🡲 Infringement of right
In this maxim, the term ‘damno’ means infringement of a right, the term ‘sine’ means without and the term ‘injuria’ means damage. Then, the whole term “damnum sine injuria’’ means physical or economical damage or loss without the infringement of a legal right.
The plaintiff can not take action if his/her legal right is not infringed, no matter if he/she suffers any economic or physical loss.
Damnum sine injuria means actual and substantial loss without infringement to any legal right and in such cases, no action lies.
Leading Case Law
Gloucastershire Grammar School’s Case
In this case, a schoolmaster set up a rival school to that of the plaintiff’s school with the result the plaintiff had to reduce their fees in order to prevent a decrease in the number of students. He, therefore, filed a suit against the defendant for damages. It was held that the plaintiff had no remedy for the loss suffered by him because there was no infringement of any legal right of the plaintiff.
Ubi jus ibi remedium ↴
Where there is a right there is a remedy
The law of torts is said to be a development of the maxim ‘Ubi jus ibi remedium' (there is no wrong without a remedy). ‘Jus' here signifies the legal authority to do or to demand something' and 'remedium' is defined as the right of action through the means given by the law, for the recovery or assertion of a right."
The true foundation of every tort is that law provides a remedy for every wrong; where there is a right there is a remedy. A great wrong is done to a person in violation of his rights. This wrong is to be remedied lest there should be no use in having a right. The principles of the law of torts are founded on this very salutary doctrine that law provides a remedy for every wrong.
The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)
From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.
Reach him at Instagram @shivaanshvermaa
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