Thursday, January 21, 2021

INTRODUCTION TO TORTS: Law of Torts- Our Legal World

Law of Torts: INTRODUCTION TO TORTS:- Our Legal World

 INTRODUCTION

Tort is basically considered as the part of law for most of the harms that are not either criminal or contract based. It helps out people to make claim of their compensation when their right is been violated (i.e.when someone hurts you or your property). The main aim of law of tort is the compensation of victims.To make it more clear, taking some instance where stealing someone else property might be a criminal offence, but it is also a tort against a person who owns a property. This is what law of torts in simple words means.

DEFINITION

The word tort is the french equivalent of the English word wrong. The word Tort is also derived from the latin word ‘TORTUM’ which means twisted or crooked or wrong, in contrast with the rectum, which means straight.

According to Salmond

“Tort is civil wrong for which the remedy is the  common action for unliquidated damages, and which is not exclusively the breach of contract, or, the breach of trust, or, other merely equitable obligation”.

In other words, Tort is when an act done by one party causes harm to other party either  negligently or by carelessness of the other party.The party to whom hurt or damage is caused, who is liable to sue is the ‘plaintiff’ and who is sued is the ‘defendant’ and therefore, the injured party can take civil action against the another party and may claim for the compensation.
For example-: while walking down the road aisle of grocery store, you slip on a banana that had fallen from a shelf. Therefore, the injured party may take civil action against the grocery store. Hence, the injured party would be called as ‘plaintiff’ and the grocery store will be called as the ‘defendant’(i.e. negligent party).  The plaintiff would take civil action against the grocery store(defendant) to claim the compensation for the damage been caused(i.e. pain, medical bills etc.).

Key points in Law of Torts

  •  Wrongful act/omission

To constitute a tort, it is must to prove that the act done by a person, whether intentionally or unintentionally is wrong in the eyes of law. There must be breach of legal duty. Certain act or omission must result in breach of legal duty.

  • Legal Damages

In order to constitute a tort, there must be a breach of duty(i.e. such act or omission by a person must violate legal right of another). Therefore, injury or damage been suffered by the plaintiff, can be claimed by him in terms compensation whether in monetary or other form.
Damages simply means ‘compensation’.

This is more expressed or understood by the following maxims:-

  1. Injuria Sine Damno

It is latin maxim where, ‘Injuria’ means ‘injury’, ‘Sine’ means ‘without’, and ‘Damno’ means ‘damage’. The maxim states it as any injury or loss or any damage caused to the person without suffering any physical damage or injury (i.e. violation of legal right). Hence, it is the term which refers to any injury suffered without actual loss.

It is well explained in case, Ashby v. White;

Where the plaintiff was a qualified voter of the parliamentary election, whereby the defendant who was the returning officer in the election refused to take a vote of the plaintiff. Although the plaintiff did not suffer any loss as the candidate he wants to vote won the election, therefore, the plaintiff sued the defendant for infringement or violating his legal right.Hence, the defendant was held liable.

  1. Damnum Sine Injuria

It is latin maxim where, ‘Damnum’ means ‘damage’, ‘Sine’ means ‘without’ and ‘Injuria’ means ‘damage’. It states to any injury or damage without infringement or violation of legal rights (i.e. damage or injury in terms of physical loss or money or any property without any violation of legal right).

In case of, Gloucester Grammar School;

The defendant was a schoolmaster who opened a school in front of the plaintiff’s school. As by doing so, plaintiff had to suffer damage because of the rival as plaintiff had to reduce their fees and many students took admission in defendant’s school. Therefore, it was held that there was no infringement of any legal right, hence, the defendant cant’t be held liable.

  • Legal Remedy

Every wrongful act whether intentionally or unintentionally, resulting in injury or loss should be given rise in the form of legal remedy. The essential remedy for tort is civil action for damages.
It is well better explained in maxim

‘Ubi jus ibi remedium’ which means ‘where there is wrong , there is remedy’. If any wrong is committed then the law provides remedy for the same. It can be said as, the person will not suffer any wrong without any remedy, it means if the person proves that the right was breached or infringed, then law will provide it suitable remedy.

 In case law, Sardar Amarjit Singh Kalra v. Pramod Gupta and other;

The court held that the principle of ubi jus ibi remedium is recognised as basic Principle of Theory of law. Supreme court also stated that it is the duty of the courts to protect the right of parties and help them instead of denying them.

Types of Torts

  • Intentional Tort

It is a civil wrong in which there is full knowledge of the outcome of the act (i.e. the wrong been committed was upto the knowledge of the offender which may result in damage to another).

1. BATTERY

It is an act where the person is having intention of causing hurt by using body force which may cause hurt to another person. Even if the person did not have the intention of causing hurt but, have that much knowledge that the act would cause him harm any way.
Some common examples of battery are punching someone’s face, hitting person with a stick etc.

Some elements of Battery are:-

  • Intention
  • Contact
  • Harm
  • No consent

2ASSAULT

It is an act of the defendant which causes to the  plaintiff reasonable apprehension of the infliction of battery on him. In simple words, it is the awareness of the person that the injury is going to happen. When the act of defendant creates apprehension or worry in the mind of the plaintiff that the defendant is going to commit battery on him, therefore it is assault.

In case R v. S. George;

The pointing of loaded gun to another is an assault, whether the gun may be loaded or not it will be considered as assault. Pointing fun from some distance meaning that it may cause injury then there is an assault. It was decided in case of Stephens v. Myers.

Some elements of Assault are:-

  • An act or conduct intended to created.
  • Reasonable Apprehension
  • Imminent harm

3. FALSE IMPRISONMENT

False imprisonment is the unlawful confinement of the person without his will. It is basically the restraining of person in the bounded area without any justification or consent. For imprisonment, it is not necessary that the person confined should be kept in prison, but should be kept in such area from where the escape is not possible.It is an intentional tort as like, assault and battery.

Essential of false imprisonment are:-

  • Period of confinement
  • Intention factor
  • Knowledge of plaintiff
  • Place of confinement

In Case, Rudul Shah v. State of Bihar;

The petitioner who was detained for around 14 years in prison filed a habeas corpus petition under Article 32 of the Indian Constitution on the ground of illegal detention. Therefore, Supreme Court directed immediate release to the petitioner and directed the State to grant him damages.

4. TRESPASS

Trespass can be said as an action exceeding the limit been drawn by law. It is an intentional act where a person unreasonably interfere with someone’s property or with someone. The word ‘intention’ here states committing the wrong voluntarily.

Types of Trespass are:-

  • Trespass against person

It is the interference in person’s Right to Freedom. The trespasser with an bad intention, interferes the right of another with an objective of causing harm (i.e. wrongful loss or gain whatever the case may be).

  • Trespass against land

It is the wrongfully or unlawfully interfering to the land of some other person. Land here, does not only mean the building and surface but also the subsoil and airspace. Therefore, if there is no damage been done to property but if the person enters the land of another without the permission then it is trespass.

  • Trespass against chattels

 The term ‘Chattels’ here refers to any personal property either tangible or intangible. Trespass to Chattels here refers to the intentional  or wrongfully interference of another’s personal property without their permission.

  • Negligence

There is a specific code of conduct which everyone is expected to follow and a legal duty of the public to act in certain way in order to reduce the risk of harm or loss to others. Therefor, failure to stick to these standards is known as Negligence.

  • Negligence is by far the most common type of tort.

 Unlike the Intentional torts, negligence cases do not involve deliberate actions, but instead are when an individual or entity is careless and fails to provide duty owed to another person.

Elements of Negligence are:-

  • Duty
  • Breach
  • Cause
  • Harm
  • Strict Liability

It is a type of tort in which the responsibility for an injury or loss can be imposed on the wrongdoer without proof of negligence or fault. The plaintiff need not to prove whether the tort occurred or not, he can sue the defendant for defective action.
Defective cases is  prime examples of when  liability is maintained despite intent.

In case law, Charing cross Electric supply v. Hydraulic Power co.;

The defendant duty was to supply water for industrial works,  but they were unable to keep their mains charged with the minimum require pressure which led to bursting of pipeline at four different places resulting in huge damage to the plaintiff which was proved with evidence. The defendant were held liable without being their fault.

Defamation under Law of Torts:- Our Legal World

Essential of Strict Liability are:-

  • Dangerous substance
  • Non-natural use
  • Escape

And, Some Exceptions to this rule are;

  • Plaintiff’s fault
  • Act of God
  • Act of third party
  • Consent of the plaintiff

Whereas, making exceptions clear;
In the Judicial pronouncement , Ponting v. Noakes;

The plaintiff’s horse died after after it entered the premises of the defendant and ate some of his leaves that were known to be poisonous. Therefore, the Court held that it was a wrongful invasion. Hence, the defendant was not to be strictly liable for the loss.

CONCLUSION

 It can be very well stated from the above that, a tort is a civil wrong which is caused when the person infringes the legal right of another person. It can be done intentionally in case of Battery and accidentally without the intention of committing an act by performing carelessness or accident in case negligence. The Law of Tort is not that well as many people are not aware of their right which  possess to  them which is due to lack of awareness among the people , the fact that tort is still  an uncodified  law and is direct derivative of England common law which makes it less likely to be adapted by Indian context, but now although it is been followed.

REFERENCES

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