TORT: All You Need To Know
WHAT IS A TORT?
- The Law of tort is based on the idea that everyone in our society has certain rights.
- Along with having rights, everyone has a duty to respect the rights of others.
- The purpose of Tort law is to enforce those rights & Duties.
- TORT is a private wrong committed by one person against another.
- Torts can be intentional or unintentional against persons & Property.
- The term for unintentional tort is NEGLIGENCE.
- NEGLIGENCE is the failure to exercise the degree of care that a reasonable person would have exercised.
- The person who commits a tort is a tortfeasor.
- The Tortfeasor interferes with the rights of another person.
- A tort is a civil wrong
- That (wrong) is based a breach of a duty imposed by law
- Which (breach) gives rise to a (personal) civil right of action for a remedy not exclusive to another area of law
- A tort is a French word for “wrong.” The Tort is of French origin. The root is ‘Tortum’ in Latin which means ‘twist’. It implies conduct that is ‘tortious’, or, twisted… The equivalent word in English is “Wrong”. In Roman it is “delict” and in Sanskrit, it is “Jimha” which means ‘crooked’.
How Word “Tort” Came To India
It came to India through England. In 1065 England was conquered by Normans who were the French-speaking people of Normandy, a region of France. After Norman Conquest, French became the spoken language in the Courts in England, and thus many technical terms in English law owe their origin to French, and ‘Tort’ is one of them.
Three Elements of Tort
- The possession of certain rights by an innocent party.
- The violation of those rights by the Tortfeasor.
- The resulting injury somehow hurts the person whose rights were violated.
- Victim, innocent party, or plaintiff in a lawsuit.
- The tortfeasor is a defendant in the lawsuit.
TORT LAW IS BASED ON THE IDEA THAT EVERYONE IN OUR SOCIETY HAS CERTAIN RIGHTS
Along With Having Certain Rights, Everyone Has The Duty to Respect the Rights of Others.
The Purpose of Tort Law is to Enforce Those Rights and Duties
Difference Between Tort & Crimes
|A TORT IS A WRONG COMMITTED
AGAINST A PARTICULAR
PERSON OR PROPERTY
|A CRIME IS A WRONG
COMMITTED AGAINST THE PUBLIC GOOD
CONSTITUENTS OF TORT
- Wrongful doings,
- Legal Damages
- Legal remedies
1. WRONGFUL DOINGS
- A person must have committed a wrongful
- This refers to an act of commission or omission
- This is ‘wrongful’ because, there must have been a breach of duty which has been fixed by law
- If a person does not observe that duty or breaks it either intentionally or unintentionally
- In tort, “intention”, usually has no role, except in cases like malicious
- Person must have done some legal wrong violates the legal right of another to be liable for a tort
|More often than not, ‘unintentional acts of wrong arise out of acts of ‘negligence’.|
- In legal sense, ‘negligence’ denotes, “a legal duty owed and neglected”.
- The wrongful act must be recognized by
|If there is a mere moral or social wrong, there cannot be a liability for the same.|
- Where legal duty to perform is involved and the same is not performed it would amount to wrongful
- Municipal Corporation of Delhi v Subhagwanti [ AIR 1966 SC 1750] where the Municipal Corporation, having ownership and control of a clock tower in the heart of the city, does not keep it in proper repairs and the failure to do of the same results in the death of number of persons, the Corporation would be liable for its omission to take care
- LEGAL DAMAGES
- There must be violation of a legal right of a person and, if it is not, there can be no action under law of torts.
- Legal Rights are conferred by the State on all its citizens.
- There are two types of Legal rights, viz, public rights and Private rights.
- Public rights are those which belong in common to all members of the state like Public peace, Public safety etc subject of Criminal Law,
- Private rights are vested in persons in general by virtue of law.
- LEGAL REMEDIES
- The purpose of Tort law is to compensate the victim for injuries caused by tortfeasor.
- The remedies are in the form of money, damages to the injury.
- Damages can be awarded for pain and suffering, to pay medical expenses, to replace/repair damaged property or pay for lost wages.
- Punitive damages to tortfeasor may also be awarded in serious acts.
Intentional torts are most often actions that deliberately hurt, embarrass or scare people.
- False Imprisonment
- Invasion of Privacy
- Infliction of Emotional Distress
Assault & Battery.
- Assault and battery are two different torts.
- Can be committed together or by themselves.
- A person commits an assault by threatening to harm an innocent person.
- The battery is the unlawful, unwanted touching of another person.
- Assault occurs as soon as one if afraid of immediate harm to the body.
- An assault has occurred even if the person escapes from the harm.
- The battery is committed even if the physical contact isn’t harmful.
- The battery can also be touching something closely associated with a person’s body (Backpack, cap) that causes harm.
- If someone interferes with a person’s right o move about freely, then the person has committed false imprisonment.
- Ex. Security guards in a store must have reasonable grounds before they stop someone suspected of
- They must hold the person in a reasonable way and for a reasonable time.
- Defamation occurs when somebody lies about a person in a way that hurts the innocent person’s reputation.
- Types of Defamation
- Libel – consists of lie about a person in a written printed or recorded form including television stores, magazine stories & websites.
- Slander – Consists of verbal or spoken lies that damage a person’s reputation.
Invasion of Privacy
- It means interfering with a person’s right to be left alone.
- It includes right to be from unwanted publicity.
- People must stay out of a person’s private matters. Any interference to it may cause an invasion of his privacy.
- The people who use confidential records in their jobs (Doctors, nurses, lawyers, valuers, counselors) have to be very careful with these records.
- Any leakage of confidential records even though unintentional may become a tort.
Intentional Infliction of Emotional Distress
- Causing great emotional or mental distress to another person, even if there is no intent to cause physical harm.
- The distress must be caused by extreme and outrageous conduct.
|A Tort is inflicted against or without consent.||A Contract is founded upon consent|
|In Tort there is no privity between the parties.
|Contract necessitates a privity between the parties to it.
|A Tort is a right in rem i.e. of a right vested in some determined person, either personally or as a member of a community, and such right is available against the whole world large.||Breach of Contract is an infringement of a right in personam, i.e. of a right available only against some determinate person or body, and which the community at larges has no concern.
|In case of the Tort, the duty is one imposed by the law and is owed to the community at large.||In case of Contract the duty is fixed by the will and consent of the parties, and it is owed to a definite person or persons.|
|In an action for Tort however, when the injury is to a person, character or feelings and the facts disclose improper motive or conduct such as fraud, malice, violence, cruelty, which aggravate the injury, aggravated and exemplary damages are awarded, so as to deter the wrongdoer to prevent such breach in future.||In case of breach of contract, damages are only compensation|
|The intention of Torts is aimed at allocation or prevention of losses.||The intention of imposing damages under the law relating to the Contract is with an aim to see that the promises as are made under the Contract.|
|In the case of Tort, it is often taken into
|In case of breach of Contract the motive
(intention) for the breach is immaterial.
IMPORTANT PRINCIPLES OF TORT
- PRINCIPLE OF DAMNUM SINE INJURIA AND INJURIA SINE
|PRINCIPLE OF VICARIOUS LIABILITY|
- PRINCIPLE OF VOLENTI NON-FIT INJURIA
- PRINCIPLE OF NEGLIGENCE
- PRINCIPLE OF NUISANCE
- PRINCIPLE OF TRESPASS TO PROPERTY
- PRINCIPLES OF REPUTATION AND PRIVACY
- PRINCIPLE OF STRICT LIABILITY AND ABSOLUTE LIABILITY
PRINCIPLE OF DAMNUM SINE INJURIA AND INJURIA SINE DAMNUM
Damnum sine injuria is a Latin maxim that means damage without legal injury. When there is the actual damage caused to the plaintiff without an infringement of his legal right, no action lies against the defendant. In order to make someone liable in tort, the plaintiff must prove that he has sustained legal injury. Damage without injury is not actionable in the law of torts.
Example: X sets up a rival institute opposite to Y’s institute with a low fee structure as a result of which students from Y’s institute flocked to X’s institute thereby causing a huge financial loss to X. This act of X is not actionable in law of torts since it did not lead to the violation of any legal right of the plaintiff although he has sustained financial loss.
PRINCIPLE OF VICARIOUS LIABILITY
It is a general rule that a person is responsible for his own act of omission and commission but in certain cases, a person is liable for the actions of others. This is known as vicarious liability.
The essential elements of vicarious liability are as follows:
- There must be a relationship of a certain kind.
- The wrongful act must be related to the relationship in a certain
- The wrongful act must be done within the course of
The most common examples of vicarious liability include:
- Employers liability for the act of his servant during the course of employment:
- Liability of partners for each other’s torts
PRINCIPLE OF VOLENTI NON-FIT INJURIA
The Latin maxim volenti non-fit injuria literally means “to one who volunteers, no harm is done”. A person who after knowing the risks and circumstances willingly and voluntarily consents to take the risk cannot ask for compensation for the injury resulting from it. A person who voluntarily abandons his rights cannot sue for any damage caused to him. It is used as a complete defense in the law of torts liberating the defendant from all kinds of liability.
Essential elements constituting volenti non-fit injuria are as follows:
- Agreement (express or implied)
- Knowledge of the risk
Example: By participating in a cricket match, the player willingly consents to bear the risk that may arise in the normal course of the game.
PRINCIPLE OF NEGLIGENCE
Negligence is said to have been committed when a person owes a duty of care towards someone and commits a breach of duty by failing to perform it resulting in legal damage caused to the complainant. In other words, a tort of negligence is committed when a person is injured due to the responsibility of another. The damage so caused must be an immediate cause of the act of negligence and not a remote cause.
Essential elements of negligence are as follows:
- Duty to take care
- Beach of such a duty
- Legal damage caused to the complainant due to a breach of duty
Reasonable foreseeability is the basic principle on which the tort of negligence is based. When a person before or at the time of committing an act can reasonably foresee that his act is likely to cause damage to the other person and he still continues to do it, he is said to have committed a tort of negligence.
Example: A doctor while performing an operation leaves a pair of gloves inside the stomach of the patient.
PRINCIPLE OF NUISANCE
The word nuisance is derived from the French word ‘nurie’ which means ‘to hurt’ or ‘to annoy’. Nuisance is an unlawful interference with a person’s enjoyment of land or some rights over or in connection with it.
There are two types of nuisance:
PUBLIC NUISANCE: It is an interference with the right to the enjoyment of the land of a large number of people thereby causing inconvenience and annoyance. It is committed against the community at large and not any particular individual. It covers a wide variety of minor crimes that harms or threaten the safety, comfort and welfare of people at large. The extent to which the inconvenience has been caused may differ from person to person.
Examples: Fireworks in the street, construction of a structure in the middle of a public way obstructing the passage of people, etc.
PRIVATE NUISANCE: It refers to unlawful interference with a person’s use or enjoyment of his land causing inconvenience and annoyance to the person. It should be noted that while public nuisance affects the community at large, private nuisance affects an individual.
Example: Destruction of crops of an individual, a ferocious dog of a person enters into the neighbor’s premises and causes destruction.
PRINCIPLE OF TRESPASS TO PROPERTY
Trespass to property refers to an unjustifiable physical encroachment of land of one person by another. If a person directly enters upon another person’s land without permission or remains upon the land or places any object upon the land, he is said to have committed the tort of trespass to land.
For an act of trespass to be actionable, it is necessary that the land in which the trespass has been committed must be in direct possession of the plaintiff. For example, the use of the camera in order to view activities on the land of another. The encroachment on plaintiff’s land should arise out of the direct consequence of the act of the defendant and not any remote or indirect cause. Also, one of the most important elements of trespass to land is the intention in the mind of the defendant not to commit trespass but to commit the act that amounts to trespass. However, it should be noted that there is a difference between trespass to land and nuisance. Trespass is an encroachment or interference on the property of a person whereas nuisance is an interference with the right to enjoy his property.
- CONTINUING TRESPASS
Continuing trespass occurs when there is a continuation of the presentation after the permission has been withdrawn or when the offending object remains on the property of
the person entitled to possession. For example, continuing to keep an object on someone’s land even after the permission has been withdrawn.
Ways in which trespass to land can occur:
- Entry upon land
- Trespass to airspace (limited)
- Trespass to the ground beneath the surface
PRINCIPLES OF REPUTATION AND PRIVACY
The principles of reputation and privacy are as follows:
Defamation means publishing false and defamatory statements about someone without any lawful justification which lowers his reputation in the eyes of the right-thinking members of society. In other words, defamation means intentional false communication either written or spoken which harms a person’s reputation.
Defamation is of two types:
- LIBEL: This is a written form of defamation that is actionable per se. Libel refers to the statement which intends to lower the reputation of an other person without any lawful excuse. The statement must be in printed form capable of being reproduced like cartoons, drawings, recordings,
- SLANDER: A slander is an oral form of defamation where false and defamatory statements are made by words spoken or gestures which intend to lower the reputation
PRINCIPLE OF STRICT LIABILITY AND ABSOLUTE LIABILITY
At times a person maybe held responsible for doing a wrong even though there had been no negligence on his part or no intention to do such wrong or even if he had taken
necessary steps to prevent such a wrong from happening. This is known as the principle of strict liability and is based on a no fault theory. The principle of strict liability was first laid down in the land mark case of Ryland’sv.Fletcher.
“Anyone who in the course of “non-natural” use of his land “accumulates” there on for his own purposes anything likely to do mischief if it escapes is answerable for all direct damage thereby caused. It imposes strict liability on certain areas of nuisance law.”
The essential elements of strict liability are as follows:
- There has to be some hazardous thing brought by the defendant on his land.
- Escape of the hazardous thing from the territory of the
- There must be a non-natural use of
- Escape of the hazardous goods was because of plaintiffs own consent
- Act of god
- Act of a stranger
- Act done by any statutory authority
- Default of the plaintiff
PRINCIPLE OF STRICT LIABILITY AND ABSOLUTE LIABILITY ABSOLUTE LIABILITY:
Absolute liability is a stricter form of strict liability. It refers to the no fault theory liability in which the wrong doer is held absolutely liable for the act of omission or commission without any defences which are available to the rule of strict liability.It is applicable only to those people who are involved in hazardous or inherently dangerous activity whereby they become absolutely liable to full compensation for the harm caused to any one resulting from the operation of such hazardous activity. The rule of absolute liability was first laid down in M.C Mehta v. Union of India (Oleum gas case).
TORT EFFECTING VALUATION
TRESPASS TO PROPERTY
STRICT LIABILITY AND ABSOLUTE LIABILITY