Torts And Essentials Of Torts
Introduction :
The word “Tort” has been derived from the Latin term “tortum” which means “to twist”. Thus, tort means a conduct which is not straight or lawful, but on the other hand twisted, crooked and unlawful.
Tort is a French term which is equivalent to the English word “wrong”.
It’s a civil wrong. It’s based upon legal rights and duties, basically an interplay between rights and duties.
According to Salmond :
Tort is a civil wrong for which the remedy is an action for unliquidated damages, and which is not exclusively a breach of contract or breach of trust.
According to Section 2 (m) of Limitation Act :
Tort is a civil wrong which is not exclusively a breach of contract or breach of trust.
According to Winfield :
Tortious liability arises from breach of a duty primarily fixed by law; this duty is towards persons generally and it’s breach is redressable by an action for unliquidated damages.
According to Fraser :
It’s an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party. (Bangia, 2013)
Secondly, every civil wrong is not a tort. It is a breach of duty recognized under Law of Torts.
It is a private wrong which indicates action against the “tort feasor” or “wrongdoer” is brought to the court by the injured party.
The damages in torts are unliquidated which means, they are not pre decided, prefixed and pre-determined.
Essentials Of Torts :
Wrongful act or omission
Legal Damage
Legal Remedy
Wrongful act or omission :
In this a person should have committed a breach of duty fixed by law. The duty must be legal and not moral or religious.
One should behave in such a manner, as a reasonable person would have behave in such situations.
A wrongful act or omission may be committed either negligently or even by committing a breach of duty.
In the case of Donaghue v. Stevenson (1932), A person purchased ginger beer in a restaurant for his woman. She drank a part of it and poured the rest into a glass. Thereby, she saw a dead snail in the drink. They sued the manufacturer. It was held that the manufacturer had a duty towards the public in general for making sure there are no noxious things in the drink even though there was no contract between the consumer and the manufacturer.
In the case of Glasgow Corporation v. Taylor (1922), there was a public garden in which poisonous berries were growing and that shrubs had no fencing nor notice.
A seven years old child ate the berries, Municipal Corporation had a duty to maintain public garden but due to the lack of due care the corporation was held liable.
In the case of Municipal Corporation of Delhi v. Subhagwanti AIR (1966), A clock tower was not in good repairs. It fell and killed several people. Municipal corporation of Delhi was held liable for it’s omission.
Legal Damage :
Legal Damage means an invasion or infringement of private legal rights. If one has legal rights then in law others have legal duty towards that individual, not to violate his legal right.
Injury means – violation of legal rights
Damage means – substantial harm or loss
Legal Damages are basically of two types :
Injuria Sine Damnum
Injuria sine Damnum is a legal injury caused to the plaintiff without any damage to the physical injury.
In the case of Ashby v. White (1703),
The defendant wrongfully prevented the plaintiff from voting. Even though there was no damage, the defendant was held liable.
In the case of Bhim Singh v. State of Jammu and Kashmir AIR (1986), Plaintiff was an MLA and was wrongfully arrested while going to assembly session. He was not produced before a magistrate within requisite period. It was held that, that act had violated fundamental rights of the MLA, even though he was released later. He was awarded 50,000 rupees as exemplary damages by Supreme Court.
Damnum Sine Injuria
These are the damages in which there is no infringement of any legal right which are vested with the plaintiff.
In the case of Glaucester Grammar Case (1410), Defendant opens a rival grammar school in front of an existing on thereby causing the fees of the existing one to be reduced from 40 pence to 12 pence. The defendant was not held liable as he did not violate any legal right of plaintiff.
In the case of Ushaben v. Bhagyalaxmi Chitra Mandir AIR (1978), Plaintiff sought a permanent injunction against the cinema House to restrain them from showing the movie “Jai Santoshi Maa”. It was held that hurt to religious sentiments is not recognised as a legal wrong. Since there was no violation of a legal right, an injunction was not granted.
Legal Remedy :
It is necessary that wrongful act must come under wrong for which the remedy is a civil remedy.
An act complained of must have given rise to a legal remedy.
Conclusion :
So, Tort consist of a wrongful act, legal damage and legal remedy.
In any situation, there is absence of any or all of, then it can be said that tort has not been committed.
Tort can be said to be the development of maxim : “Ubi Jus Ibi Remedium”, which means where there is a right there is a remedy.
Comments
Post a Comment