Definition: A tort, in common law jurisdictions, is a civil wrong which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act, called a tortfeasor. Tort is derived from the latin word “Tortum”.
Although crimes may be torts, the cause of legal action is not necessarily a crime as the harm may be due to negligence which does not amount to criminal negligence. The victim of the harm can recover their loss as damages in a lawsuit. In order to prevail, the plaintiff in the lawsuit must show that the actions or lack of action was the legally recognizable cause of the harm. The equivalent of tort in civil law jurisdictions is delict. Legal injuries are not limited to physical injuries and may include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Torts comprise such varied topics as auto accidents, false imprisonment, defamation, product liability, copyright infringement, and environmental pollution (toxic torts). While many torts are the result of negligence, tort law also recognizes intentional torts, where a person has intentionally acted in a way that harms another, and in a few cases “strict liability” which allows recovery without the need to demonstrate negligence. Tort law is different from criminal law in that:
•torts may result from negligent but not intentional or criminal actions and •tort lawsuits have a lower burden of proof such as preponderance of evidence rather than beyond a reasonable doubt. Sometimes a plaintiff may prevail in a tort case even if the person who caused the harm was acquitted in an earlier criminal trial
Injuria sine damnum.
This Latin principle means there has been legal injury (“injuria”) but no actual damage has been caused. Example : In the famous case of Ashby v. White a listed voter was not allowed to cast his vote by the polling officer. The voter’s candidate of choice ultimately won the election. So no actual damage was caused but there was a violation of the person’s legal right to vote. This is injuria or legal injury even though no actual damage has been caused. This is a tort and the aggrieved party has a right of
action in tort law.
Damnum sine injuria
This means that there has been damage but no legal injury has been committed so no action lies in tort law. Example : In the Gloucester Grammar School case there was an established school in the locality. A new school was set up which charged lower fees on account of which people started patronising the new school. The old school filed a case against the latter saying that they had caused them financial loss and claimed compensation. The court held that no legal right had been violated and as such no compensation can be granted. Thus if damage is caused which does not lead to violation of a legal right then no action lies under tort law
Liability in torts
The duty for the breach of which the tortious liability arises must follow •It must be primarily fixed by law
•Must be towards persons generally
The remedy for the above mentioned breach of duty is an action for the unliquidated damages. •Wrongful act: A tort is committed both by an act as well as omission, which should be contrary to law or which violates some legal right(which can be enforced in court) vested in another person. A moral/social/political wrong doing is not a tort. •Legal damage: The plaintiff has to prove that there has been a legal damage. •Remedy in the form of unliquidated damages: The essential remedy for a tort is an action for damages. The dominant action in tort is Negligence.
Categories of tort
Category of tortsKind of torts
Tort to personMental & Nervous shock/Assault/Battery/mayhem/False imprisonment Tort to ReputationLibel(Written), Slander(Verbal defamation) Torts relating to Domestic relationsParental/Maternal/Master’s rights/immovable-movable property/incorporeal personal property Torts to person and propertyNegligence/absolute liability/nuisance/interfering in contract Remedies against Torts
•Judicial
Damages- all torts/to place the injured party, so far as money can do it, in a position which he would have occupied, if wrong had not been committed. Injunction- order of court directing the defendant to abstain from the commission, continuance, on repetition of an unlawful act, or to do some act which he is legally bound to do Specific restitution of property- individual if wrongfully disposed off his property moveable/immovable, he is entitled to recover the same as the case may be. •Extra judicial
Self defence- for protection of his person/property. However, the force used for self defence should be proportionate to the apprehended danger/actual causation of harm Expulsion of trespasser- entitled to immediate possession of immovable property may expel the trespasser & re-enter the property, provided that the force used by him does not exceed the reasonable limits Re- entry on land- if wrongfully disposed of his land may re-take its possession and re-enter in it, if he can do so in a peaceful manner without intervention of courts Reception of goods- person entitled to immediate possession of chattels, may recover them from any person who has the actual possession then and detain them, provided that such possession was wrongful in its inception Abatement of nuisance- under certain circumstances and subject to certain limitation, the injured party has a right to remove private/public nuisance. e.g, to cut overhanging branches of neighbor’s tree. Distress damage feasant- distress= detain; feasant= object which has done wrong. The occupier of land has right to seize, cattle trespassing and causing damage, and detain till owner pays compensation. Damages under law of torts
Represents “pecuniary compensation”
Kinds of damages
Contemptuous- awarded by court when it is considered thataction should never have been brought to court Nominal- not as compensation but as recognition of legal rights. E.g, tresspassing Substantial/Ordinary- real/substantial damages assessed and awarded Exemplary- also known as punitive damages- great injury by reason of aggravating circumstances caused by deliberate crime.
Exception to liability
Conditions under which the act is said to be justified or excused, wherin the defendant can take defences.
Types
Specific defences- available only to a particular wrong cannot be taken to other wrongs General Defences- Taken against action for various wrongs like oVolenti Non Fit Injuria-Harm caused willing, where the sufferer had consented voluntarily, knowning the risk involved. oAct of God- losses resulting due to work of natural forces like heavy rainfall/strom/earthquake oInevitable accident-damage due to unavoidable reasons even when lawful action was performed with all due care oAct of Necessity- done to prevent greater evil
oMistake of Fact- no defence in tortious liability
oAct of State- policies of state
oPrivate Defences- in one’s own personal defence
oParental Acts- exercise of force towards training of children by parents/ student by teacher, provided it be done reasonably and bonafide and within moderate limits oAct Causing Slight Harm- “de minimis non curat lex” law does not take account of triffles.
Discharge in torts
The right to take action against the wrong doer in the court of law comes to an end or be discharged. Modes of discharge
Death of the parties- “Actio Personalis mortiur cum Persona” Cause of action dies with the person, exceptions to this are Common law exceptions- Action under contract & Unjust enrichment of tort feasor’s estate Statutory exception- Legal representatives Act, 1855/Fatal Accidents Act, 1855/Indian succession act,1925 Waiver-Out of various remedies available, the injured party opts to pursue only one of them, he shall be precluded from pursuing other remedies afterwards Release- injured party forgives wrongdoer
Accord and satisfaction- Agreement reached between 2 parties
Acquiescence- If a person with full knowledge of his rights to bring an action for torts neglects to do so for a length of time, it may be deemed that he has abandoned the right Res Judicata- section 11 of Civil procedure code 1908, when once a suit has been filled and decided, a second suit cannot be filed on the same cause of action. Not applicable to injuries which are continuing in nature Statute of limitation- Action for tort must be brought within the period prescribed by Indian limitation Act 1963, otherwise sue stands barred
Vicarious liability
Circumstances where a person is deemed to be responsible for the act of others Principle of vicarious liability
oQui facit per alium facit perse- He who acts through another is deemed in law as doing it himself oRespondent Superior- Superior is responsible for the act committed by his juniors Circumstances in which vicarious liability arises
Liability by ratification-giving formal consent to junior who commits an act without know the outcome Liability by abetment- knowingly abet the tort and induce others to do it Liability arising out of special relationship
oMaster and servant
oOwner and independent contractor
oPrincipal and Agent
oCompany and its director
oFirm and its partners
oGuardian and ward/ father & child
oHusband and wife
Defamation “Attack on the reputation of a person”
Publication concerning a person, in writing, by pictures or significant gestures, which exposes such person to feeling of hatred, ridicule or contempt where by, he suffers injury to his reputation. Ingredients
oThe statement must be defamatory
oThe statement must refer to plaintiff
oThe statement must be published(Libel/Slander)
Defences in an action for defamation
oJustification of truth
oFair and Bonafide comment
oPrivileges
oApology
Negligence
Defined as breach of duty caused by the omission to do something, which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Doctrine of Res Ipsa Loquitur
The initial burden of making out atleast a prima Facie case of negligence as against the defendant lies heavily on the plaintiff, but once this onus is discharged, it will be for the defendant to prove that the incident was the result of inevitable accident or contributory negligence on the part of plaintiff.
