Theoretical overview
Tort: the word tort has been derived from the Latin term ‘tortum’ which means to ‘twist’ it includes that conduct which is not lawful. A tort is an act of civil offence committed against a person that result in injury, harm or loss. The person who has committed the tort shall be legally liable on account of consequential loss or damages. A person is liable for wrongful act wheather done accidently or intentionally . the injured party is compensated by the payment of damges.
“Tort means a civil wrong which is not exclusively a breach of contract or breach of trust”-S.2(m) the limitation act 1963
The basic idea which is indicated by these definition is firstly Tort is civil wrong and every civil wrong is not a tort.
The purpose of compensation is to return the person to their original state as much as possible prior to the incident of tort.
Essential of torts
- Act or omission: in order to make person liable for a tort he must have done some act which he waws not expected to do. For example ‘A’ commits the act of trespass or publishing the statement defaming another person or wrongfully detain other person for such act he can be made liable. Similarly when there is a legal duty to do some act and person fails to perform that duty he can be made liable for such omission. For example an employee fails to provide safe system of work would be liable for the consequences.
- Legal damages: damages means the harm or loss suffered by someone else as a result of wrongful act. The plaintiff has to prove that there has been a legal damages caused to him if there is a violation of legal right the action has to be taken.
Legal damages are of two type: injuria sin damno and damnum sin injuria
- Injuria Sine Damnum: – Injuria Sine Damnum is a legal maxim, which means that injury or loss or damage caused to the plaintiff without suffering any physical injury or damage. It is a Latin term where ‘Injuria’ means injury, ‘Sine’ means without and ‘Damno’ refers to a property or any physical loss, therefore the term refers to ‘injury suffered without actual loss’. Here, in this case, the plaintiff doesn’t have to prove the damages so suffered, he only has to prove that there is some legal damage suffered by him, that is the action so brought is actionable per se.
- Damnum Sine Injuria: – Damnum Sine Injuria is a maxim, which refers to injury which is being suffered by the plaintiff but there is no violation of any legal right of a person. In such circumstances, where there is no violation of the legal right of but the injury, or damage is being suffered by the plaintiff, so the plaintiff can’t bring an action against the other for the same, as it is not actionable in law, unless there is some infringement of a legal right is present. Damnum Sine Injuria, the literal meaning of the word refers to loss or damage in terms of money, property or any physical loss without the infringement of any legal right. It is not actionable in law even if the act so did was intentional and was done to cause injury to other but without infringing on the legal right of the person.
- Legal Remedy: – Wherever there is a wrong, there is a remedy. It should be of such a nature as to give rise to a legal remedy by way of action for damages. The law of torts also prescribes certain forms of legal remedies for injured parties, such as damages, specific restitution of property and injunctions that are awarded by the Courts.
- Duty imposed by law: – . The law imposes a duty on every individual to observe and maintain a reasonable standard of care when performing any act which may potentially cause harm to another person. In order to bring a suit for a tort, it must be proved that there existed a duty of care towards the injured party, which was subsequently breached by the tortfeasor. It is not necessary that the injured party and the tortfeasor have a direct connection for the duty of care to exist, rather, the duty is imposed by operation of law.
Features of torts
- A tort is a civil wrong: – Tort comes under civil law and its wrong is known as a civil wrong.
- A tort is an infringement of a right in rem: – There are two types of rights, Right in rem and right in persona. While the right in rem is available against the whole world whereas right in persona is available against any particular individual. Every person has the right to the enjoyment of his own property and any person who has violated or infringed he will be sued and liable to pay the compensation in the form of unliquidated damages. This is known as right in rem which is available against the whole world. This way the tort law in right in rem and is available against the whole world.
- Torts deal with cases related to legal rights: – It is fair enough that tort deals with an only violation which is in relation to breach of a legal right. Though a person may economic or social loss but if it hadn’t breached any legal person won’t have any recourse in court under tort law.
- Remedy in the form of Compensation: – In torts Law, the remedy is awarded in the form of damages or as unliquidated damages which are calculated by the court on the basis of loss caused. The method is different from what is in the law of contracts where damages are already mentioned in the contract or can be easily calculated according to the agreed terms.
- Rights are to be fixed by law: – To claim a remedy for the violation of rights, the rights should be recognized by the government. These rights can’t be self-declared rights for his own purpose, nor these can be based on the previous consent of the parties. The right should be acceptable by the government and these rights changes according to the needs of the society.
Relevant sections:
- S.2(m) the limitation act 1963- Tort means a civil wrong which is not exclusively a breach of contract or breach of trust”
Important case laws
Mogul Steamship Co. v. McGregor Gow and Co. :a number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extend their trade and increase their profits.
Donoghue v. Stevenson: the consumer could bring an action in tort against the manufacturer even though there was no contract between the manufacturer and the consumer. Whatever the contract, it was only between the manufacturer and the retailer.
Dickson v. Reuter’s Telegram Co.: where the defendants were held not liable even though their negligence had caused damage to the plaintiff. The defendant, a telegraph company, negligently delivered a telegram, meant for somebody else, to the plaintiffs. The telegram contained an order for the shipment of barley from Valparaiso to England. The plaintiffs believed that the message was meant for them and shipped the goods, which the sender of the telegram refused to accept. The plaintiffs having suffered a heavy loss sued the defendant company. It was held that the defendant company owed a contractual duty, only to the sender of the telegram. Since they did not owe any duty to the recipient of the telegram, they were not liable.
Points to remember
- A tort is an act of civil offence committed against a person that result in injury, harm or loss. The person who has committed the tort shall be legally liable on account of consequential loss or damages
- The purpose of compensation is to return the person to their original state as much as possible prior to the incident of tort.
- damages means the harm or loss suffered by someone else as a result of wrongful act. The plaintiff has to prove that there has been a legal damages caused to him if there is a violation of legal right the action has to be taken.