IMPORTANT PRINCIPLES OF TORT-ALL THAT VALUERS NEED TO KNOW
- PRINCIPLE OF DAMNUM SINE INJURIA AND INJURIA SINE DAMNUM
- 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
1. PRINCIPLE OF DAMNUM SINE INJURIA AND INJURIA SINE DAMNUM.
Damnum sine injuria is a Latin maxim which means damage without legal injury. When there is an actual damage caused to the plaintiff without an infringement of his legal right, no action lies against the defendant. In order to make some one liable in tort, plaintiff must prove that he has sustained legal injury.Damage without injury is not action able in the law of torts.
Example:A sets up a rival school opposite to B’s school with a low fee structure as a result of which students from B’s school flocked to A’s school there by causing a huge financial loss to A. This act of A 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.
2. 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 act 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
Most common example 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
3. 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 defence 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 football match, the player willingly consents to bear the risk that may arise in the normal course of the game.
4. 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 a legal damage caused to the complainant. In other words, a tort of negligence is committed when a person is injured due to their 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 foresee ability 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 a 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 scissor inside the stomach of the patient.
5. 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 enjoyment of 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 threatens 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 apublic way obstructing the passage of people, etc.
PRIVATE NUISANCE:It refers to an 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 poisonous dog of a person enters into the neighbour’s premises and causes destruction.
6. 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 an other 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, use of 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 occurs when there is a continuation of the presence 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
7. PRINCIPLES OF REPUTATION AND PRIVACY
The principles of reputation and privacy are as follows:
Defamation means publishing false and defamatory statement about someone without any lawful justification which lowers his reputation in the eyes of the right thinking members of the 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 which 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, etc.
- SLANDER: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 of a person.
8. 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 defendant.
- 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
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