There are several branches of law such as civil law, criminal law, matrimonial law, etc. One such branch of law is the Law of Torts. The word “tort” is derived from the Latin word ‘tortum’ which means twisted or crooked or simply conduct which is not correct.
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Thus, a tort is a civil wrong that is redressable by an action for unliquidated damages. The two main characteristics of torts are –
1. Civil Wrong
These are the wrongs done by people unintentionally, which results in damages, for example, parking your car in a wrongful manner, littering, etc. The best way to understand a civil wrong is to distinguish it from a criminal wrong.
1. Firstly, civil wrongs are less in comparison to criminal wrongs.
2. Secondly, a civil wrong leads to an infringement of private or civil rights of an individual whereas the criminal wrong leads to the breach of public rights which affects the society as a whole.
3. Thirdly, in case of a civil wrong, the action can only be taken by the aggrieved individual only as it is a wrong committed against an individual. Whereas a criminal wrong is a wrong against the society as a whole, therefore the action is taken by the representatives of a society, i.e., the government.
4. Fourthly, the remedy for a civil wrong is compensation for the loss suffered by the plaintiff as it aims to restore the individual to its original position. Whereas a criminal wrong can only be compensated by punishment, physical or economic.
2. Unliquidated Damages
- Damages can be referred to the monetary compensation paid to the plaintiff for the loss suffered by him because of the defendant’s actions.
- Unliquidated damages are those damages which can not be determined before happening of any injury to a person. For example – the amount of compensation cannot be determined in the cases of car accidents, etc. Thus, when there is a case of torts, unliquidated damages are awarded to the aggrieved party.
- Thus, torts are civil wrongs which are the wrongs against an individual, wherein the aggrieved individual takes the action and remedy in the form of unliquidated damages is awarded.
Essentials of Torts
The tortious liability can be determined by three essential conditions –
1. Wrongful act or wrongful omission
- A tortious can be caused by an act or omission on the part of the defendant. A wrongful act can be defined as an act which is disregarded by the law. On the other hand, when a person has a legal duty to perform an act and he omits to do that certain act, he can be made liable for the same.
Example of a wrongful act is
- When you slap a person, the omission is when you fail to chain your dog and it bites someone.
- If the said act does not violate any legal rights of a person, it can not amount to a tort. Violation of moral, social and religious duties does not come under the category of torts. For establishing a tortious act, violation of a legal right needs to be proved.
2. Injury to the plaintiff or violation of his legal rights
Mere act or omission or failure to do duty will not be considered as a tort unless it results in some injury to the plaintiff, i.e., violation of his legal rights.
Thus, the question arises what is a legal right?
- Legal rights are those rights which are provided and protected by the law. For example- it is your legal right not to be harmed by others, so if an individual harms you he is causing injury to your legal rights.
It is not that every ‘damage’ is an injury in the eyes of the law. There may be a wrong caused to a person but, if actual legal damage is not caused to him, no action in torts will be maintainable. This flows from the concept of ‘Injuria sine Damnum and Damnum sine injuria’.
Injuria Sine Damnum
This means legal injury without any actual damage, i.e., there is a violation of your legal rights, even though the act of one party causes no harm or damage to the other. In such a case, an action in tort is maintainable and damages can be claimed.
This concept can be clearly understood by the classic case of Ashby v. White, where the plaintiff who was an eligible voter, was wrongfully denied to cast his vote. No actual loss was suffered by the plaintiff due to such refusal as the candidate whose plaintiff wanted to win, actually won. The court in the said case held that there is an injury to the plaintiff’s legal right despite any loss and thus he is entitled to claim damages.
Damnum sine Injuria
This means damage without legal injury, i.e., there is no violation of legal rights but despite that, there is damage or loss to the plaintiff. In these cases, an action is not maintainable in the court and thus damages cannot be claimed.
A case relating to this maxim is Gloucester Grammar School case. In the said case, the defendant, a school teacher set up a rival school to that of plaintiff’s. This created competition between the two schools due to which the plaintiffs had to reduce their fees and consequently suffered major damages. The court in the said case held that though the plaintiffs suffered major losses there was no violation of their legal rights as the defendants had used lawful means to set up their school.
3. Legal remedy
The concept of providing a legal remedy flows from the maxim “ubi jus ibi remedium”, i.e., where it is right, there is a remedy, means that whenever a right is violated, the person whose rights are violated has a remedy against the person so violating his right.
Torts are a civil wrong for which the remedy is an action for unliquidated damages. Thus, the main remedy for a tort in an action for damages. There are other remedies as well such as Specific Performance and Injunction. But, an action for unliquidated damages is an essential characteristic of the remedy of tort. It is mainly the right to damages which classifies such wrongful act within the category of torts.
BASIS OF TORT LAW IN INDIA
We do not have any codified law on the subject matter of torts. It is based on the principles of equity, justice, and good conscience. The law of torts is based on the principles of ‘common law’ which is mainly the English law of torts. The application of the law of tort is an applied selectively in Indian courts keeping in mind if it suits the circumstances of Indian society.
- Justice Bhagwati in C Mehta v. Union of India observed that:
“We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”
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