INTRODUCTION OF TORT
Law of tort is concerned with the allocation and distribution of losses. This is the branch of law governing actions for damages for injuries to private legal rights, for example, right to property, right to personal security, right to personal reputation, etc. The word “tort” means in law, a wrong or injury which deals with situations where a person's actions cause harm to society in general which has certain characteristics. Its most important characteristics is that it is redressible in an action for damages at the instance of the injured person. Here the injured person can get damages from the wrong doer to the satisfaction of his injury.
A tort, in common law jurisdictions, 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. Tort law deals with situations where a person's behavior has unfairly caused someone else to suffer loss or harm. A tort is not necessarily an illegal act but causes harm. The law allows anyone who is harmed to recover their loss. Tort law is different from criminal law, which deals with situations where a person's actions cause harm to society in general. A claim in tort may be brought by anyone who has suffered loss. Criminal cases tend to be brought by the state, although private prosecutions are possible.
A person who suffers a tortuous injury is entitled to receive compensation for "damages", usually monetary, from the person or people responsible — or liable — for those injuries. Tort law defines what a legal injury is and, therefore, whether a person may be held liable for an injury they have caused. Legal injuries are not limited to physical injuries. They may also include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Tort cases therefore comprise such varied topics as auto accidents,false imprisonment, defamation, product liability (for defective consumer products), copyright infringement, and environmental pollution (toxic torts), among many others.
In much of the common law world, the most prominent tort liability is negligence. If the injured party can prove that the person believed to have caused the injury acted negligently – that is, without taking reasonable care to avoid injuring others – tort law will allow compensation.
Essentials or constituents of tort.
1. Wrongful act or omission.
2. Wrongful act or omission must result in a legal damages.
3. Wrongful act or omission must be of such nature so as to give rise to a legal remedy.
1. Wrongful act or omission
The first essential ingredient in constituting a tort is that a person must have committed a wrongful act or omission i.e., he must have committed a breach of that duty which has been fixed by law itself. The question, therefore, arises what then in law, a duty is. It may mean that there is some legal limitation or restriction on the conduct of a person that he should behave in such a manner as a reasonable person would have behaved in like circumstances. If a person does not observe that duty like a reasonable and prudent person or breaks it intentionally, he is deemed to have committed a wrongful act. A wrongful act may be a positive ace or an omission which can be committed by a person either negligently or intentionally or even by committing a breach of strict duty. For example, if a person drives his motor cycle at an excessive speed in violation of law or fails to perform a duty as required by law, or beats a person in order to take revenge or keeps a lion on his land which escapes and injures a person on the road, he can be made liable for positive wrongful act or omission in negligence, battery or breach of strict duty, as the case may be.
But it may be noted that, a breach of merely moral or religious duty will not suffice; it must be a duty primarily fixed by law. For example, once Miss A was seriously ill and she was all alone in her house. She requested her neighbour B to look-after her. B did this i.e., he brought medicines, cooked food for her and served her also. She became alright .After sometime B fell ill and by chance he was alone in his house. He then requested Miss A to look –after him. But Miss a never acceded to his request with the result B suffered a lot and became disabled. In this case Mr. B cannot take any legal action against Miss A as the duty is simply a moral duty and has not been fixed by the law itself.
Even if it is a breach of a religious duty, which is not imposed by law, an action cannot be maintained. A case worth mentioning in this area is of DHADPHALE V. GURAV (1881) 8 BOM122. In this case the facts briefly were that Dhadphale, a servant of the Hindu temple, had a right to get the food offered to the idol. The defendant Mr. Gurav, was under an obligation to the idol to offer the food, but he did not do so. The servant, therefore, brought a suit against him for damages. It was held by the court that the defendant was under no legal obligation to supply food to the temple’s servant, and though, his omission to supply food to the idol might involve loss to the plaintiff, it was a breach of religious duty, and could not entitle the plaintiff to maintain a suit.
Roger V. Ranjendro Dutt. The court held that, The complained of should, under the consequences, be legally wrongful, as regard the part complaining. That is’it must prejudicially affect him in some right, merely that it will however directly do harm in his interest is not enough.
So, therefore, duty must be from the very first must fixed by law. But if an act has been done by a person involuntarily or under the influence of pressing danger, he will not be deemed to have committed a breach of legal duty. Again if an act or omission is done under some lawful excuse, it would not amount to breach of legal duty or a wrongful act. For example, a police officer in following a thief trespassed the land of Mr. B. Here the police officer will not be deemed to have committed a breach of legal duty because of lawful excuse or justification.
The crucial test of a breach of legal duty or a legally wrongful act or omission, however, is its prejudicial effect on its legal right of another person which is dealt with under the heading legal damage i.e., “infringement of private legal right”, the second essential of tort. Because without injuria (i.e., infringement of private legal right) a person does not become a tort- feasor, although he might have committed a breach of legal duty. For example, driving of a motor-cycle on the wrong side is a breach of legal duty and is not actionable in tort unless somebody is injured.
2.Wrongful act or omission must result in “LEGAL DAMAGE”
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 Damno.
(i) Damnum Sine Injuria (Damage Without Injury)
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 fro 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.
(ii) Injuria Sine Damno ( injury without damage)
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.
3. Wrongful act or omission must be of such nature so as to give rise to a “LEGAL REMEDY”
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. But even so the absence of a remedy is evidence but is not conclusive that no right exists.
Therefore if we mathematically try to explain tort, the following formula is deducible:
Wrongful act + Legal damage + Legal remedy= Torts.
Some General Conditions In Torts.
Act And Omission- To constitute a tort there must be a wrongful act, whether of omission or commission, but not such acts as are beyond human control and as are entertained only in thoughts. An omission is generally not actionable but it is so exceptionally. Where there is a duty to act an omission may create liability. A failure to rescue a drowning child is not actionable, but it is so where the child is one’s own. A person who voluntarily commences rescue cannot leave it half the way. A person may be under duty to control natural happenings to his own land so as to prevent them from encroaching others’ land.
It is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances.The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.
Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury.
Breach of duty
In Bolton v. Stone the English court was sympathetic to cricket players Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person [objective] in the same situation would clearly have realized, also breaches that duty.
Breach of duty is not limited to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property. A person who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care. An example is shown in the facts of Bolton v. Stone, a 1951 legal case decided by theHouse of Lords which established that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside her house. Cricket balls were not normally hit a far enough distance to pose a danger to people standing as far away as was Miss Stone. Although she was injured, the court held that she did not have a legitimate claim because the danger was not sufficiently foreseeable. As stated in the opinion, 'Reasonable risk' cannot be judged with the benefit of hindsight. As Lord Denning said in Roe v. Minister of Health, the past should not be viewed through rose coloured spectacles. Therefore, there was no negligence on the part of the medical professionals in a case faulting them for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contamination. Even if some were harmed, the professionals took reasonable care for risk to their patients.
2. Voluntary and Involuntary Acts- a voluntary act has to be distinguished from an involuntary act because the former may involve liability and the latter may not. A self willed act like an encroachment for business, is voluntary, but an encroachment for survival may be involuntary. The wrongfulness of the act and the liability for it depends upon legal appreciation of the surrounding circumstances.
3. Malice- malice is not essential to the maintenance of an action for tort. It is of two kinds, ‘express malice’ (or malice in fact or actual malice) and ‘malice in law’ (or implied malice). The first is what is called malice in common acceptance and means ill will against a person; the second means a wrongful act done intentionally without just cause or excuse. Where a man has a right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense. An act, not otherwise unlawful, cannot generally be made actionable by an averment that it was done with evil motive.A malicious motive per se does not amount to injuria or legal wrong.
Wrongful acts of which malice is an essential element are:
# Malicious prosecution,
# Willful and malicious damage to property,
# Maintenance, and
# Slander of title.
4. Intention, motive, negligence and recklessness- The obligation to make reparation for damage caused by a wrongful act arises from the fault and not from the intention. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair it necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad or indifferent. A thing which is not a legal injury or wrong is not made actionable by being done with a bad intent. It is no defence to an action in tort for the wrong doer to plead that he did not intend to cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his volition. A want of knowledge of the illegality of his act or omission affords no excuse, except where fraud or malice is the essence of that act or omission. For every man is presumed to intend and to know the natural and ordinary consequences of his acts. This presumption is not rebutted merely by proof that he did not think of the consequences or hoped or expected that they would not follow. The defendant will be liable for the natural and necessary consequences of his act, whether he in fact contemplated them or not.
5. Malfeasance, misfeasance and nonfeasance- The term ‘malfeasance’ applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of negligence or malice. The term ‘misfeasance’ is applicable to improper performance of some lawful act. The term ‘non-feasance’ applies to the failure or omission to perform some act which there is an obligation to perform.
6. Fault- Liability for tort generally depends upon something done by a man which can be regarded as a fault for the reason that it violates another man’s right.
But liability may also arise without fault. Such liability is known as absolute or strict liability. An important example is the rule in Rylands v. Fletcher thus the two extremes of the law of tort are of non liability even where there is fault or liability without fault. Between these two extremes is the variety of intentional and negligent wrongs to the question whether there is any consistent theory of liability, all that can be said is that it wholly depends upon flexible public policy, which in turn is a reflection of the compelling social needs of the time.
General Principles of Liability
There are two theories with regard to the basic principle of liability in the law of torts or tort. They are:
# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.
# Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.
The first theory was propounded by Professor Winfield. According to this, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying, my duty is to hurt nobody by word or deed. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.
The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbour as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort.
The law of tort consists of a neat set of pigeon holes, each containing a labeled tort.If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort. The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes in untenable. However salmond argues in favour of his theory that just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted for an alleged offence or sued for an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.
There is, however, no recognition of either theory. It would seem more realistic for the student to approach the tortious liability from a middle ground. In an Indian decision, Lala Punnalal v. Kasthurichand Ramaji , it was pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts. On the whole if we are asked to express our preference between the two theories, in the light of recent decisions of competent courts we will have to choose the first theory of liability that the subsequent one. Thus it is a matter of interpretation of courts so as to select between the two theories. The law of torts has in the main been developed by courts proceeding from the simple problems of primitive society to those of our present complex civilization.
As we say Law of tort is concerned with the allocation and distribution of losses to the injured party so for this purpose commitment of ‘wrongful act or omission’ is the first step in constituting the tort. There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects.Damage without breach of a legal right will not constitute a tort. On the other hand if there is 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.Every act which is wrongful (in the eyes of law) calls for an unliquidated damages, amount of which is further asserted by court accordingly. The claim differs from person to person and from act to act for e.g. if a person abuses a person like any person from general public and if a person abuses the President of our country then in both the cases the amount of damages will be different as no doubt both the acts are wrongful acts but both the persons cannot be compare equally.
So ‘wrongful act’resulting in legal damage and legal remedy is the fundamental and principle requirement in constituting the the tort without which no question of claim arises .
RECOMMENDATIONS AND SUGGESTIONS
Wrongful act is a very wide term in tort. Effort should be made that every time the act or omission should be interpreted so properly, effectively and efficiently so that the injured party could be satisfied to the fullest and therefore there is no chance of complaints from both the parties. Now in this era of complex society there are numerous wrongful acts which are being committed in our day today life but some acts are of such nature which are committed only because the fear of committing that act is very less due to the less amount of unliquidated damages for the same. So the interpreters should consider this thing in account. There is also lack of awareness in India, the acts which should be resolve under law of tort are being prosecuted under CrPc. So steps should be taken to enlighten this area also.
Tags :civil law