Chapter 1
Short Description
Introduction to Law of Torts...
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Chapter 1--T 1--Tort: Meaning Mean ing and Defnition
What is the meaning of tort?
In common parlance the tort is an injury or wrong independent of implied contract, as by assaul assault, t, libel, libel, malic maliciou ious s pros prosecu ecutio tion, n, neglig negligenc ence, e, sland slander er or tresp trespas ass s or seduction.
The term 'tort' is French French in origin which is synonym to 'wrong' 'wrong' in English ersion. This word has originated from the !atin word 'tortus' which means to twist and implies conduct which is tortious or twisted. The "oman word 'delict' and #ans$rit word '%imha' depict same the meaning. The concept of tort appears when a breach of some duty is caused which is independent of implied contract giing rise to a ciil cause of action and for which compensation can be claimed and a damage is recoerable.
&. e(nition e(ni tion of Tort
)any authors hae de(ned the term 'tort' but so far, its de(nition is still in a growing stage and it would be di*cult to accept any single de(nition which could de(ne tort in wholesome manner. manner. There are shortcomings shortcomings in each of the de(nitions but we will try here to (nd those missing lin$s and bridging the gaps with our own suggestions.
+ wor$able de(nition of tort may be as-+ ciil wrong which is independent of implied contract for which the appropriate remedy is an action for unliuidated damages.
#almond and /euston
+ tort tort is a 'ci 'ciil il wron wrong g for for whic which h the the remed emedy y is a comm common on law law acti action on for for unliuidated damages, and which is not e0clusiely the breach of a contract or the breach of a trust or other merely euitable obligation.'&
1ler$ and !indsell
'+ tort may be described as wrong independent of contract, for which the appropriate remedy is common law action'.2
#ir Fredric$ 3olloc$
'The law of torts in ciil wrongs is a collectie name for the rules goerning many species of liability which, although their subject-matter is wide and aried, hae certain broad features in common, are enforced by the same $ind of legal process and are subject to similar e0ceptions'.4
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&. !aw of Torts 6&7728, 29th Edn., pp. &:, &;.
2. 1ler$ < !indsell, Torts, =th Edn., p. &.
4. 3olloc$, !aw of Torts, &&th Edn., p. &;
Win(eld and %olowic>
e(ne Tort in the words of Win(eld and %olowic>.
'Tortious liability arises from the breach of duty primarily (0ed by law this duty is towards persons generally and its breach is redressible by an action for unliuidated damages'.&
It would not be out of place to mention here that none of the aboe de(nition gies a wholesome information on torts which can be accepted in its totality. /oweer, the de(nition gien by Win(eld has more substance compared to those of other authors and if we e0amine here some of its shortcomings then certainly we can try for a de(nition near to perfection by adding some more teeth to it.
Important points of Win(eld de(nition are
6a8 duty primarily (0ed by the law,
6b8 duty is towards persons generally and
6c8 action for unliuidated damages.
6a8 In tortious liability, the duty must be (0ed by the law from the beginning and not by undergoing an agreement between the parties. #o, parties can neither create nor negotiate the tortious liability by contract. Tort arises from the duty which has been (0ed by the law and has been infringed by the party. From the aboe de(nition it is clear that liability arises from the breach of duty by a person but it has been seen that een though a person not committed a breach of duty himself, is held liable. @icarious liability cases fall under the category where a master is held liable for his serant's wrong. In our country, it is the legal duty of eery person who dries a ehicle to drie it carefully obeying tra*c rules and guidelines. For e0ample + appoints A as his car drier and one day + as$s A to fetch his relatie from railway station to +'s residence. In course of performing his duty A traels to station at e0cessie speed and hits a pedestrian causing him grieous injury. /ere A has committed a breach of duty primarily (0ed by the law, but his master + will also be held liable in ciil action under the rule of icarious liability. This de(nition doesn't gie space for such $ind of cases to come within its ambit.
6b8 The duty in tort is always general and it is an important constituent of tort. In ma0imum cases, it is wor$able but in some cases, it becomes di*cult to say who e0actly are 'persons generally' hence it can be said that these words are ambiguous. In any case, this ambiguity of tortious liability seres to $eep it distinct from the contractual liability, uasi-contractual liability and the liability arising from bailment where the duty is towards speci(c persons.
6c8 !iuidated and unliuidated damages - where the plaintiB in an action sues for a pre-determined and inelastic sum of money - it is a claim for liuidated damages. Aut if he sues for a sum which court, in its discretion, is at liberty to award, then he is said to hae a claim for unliuidated damages een though he has mentioned a particular 6(0ed8 sum of money in his pleadings.
The action for unliuidated damages is a litmus test of tortious liability since the award of damages is under the discretion of courts.
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&. Win(eld and %olowic> on Tort by W.@./. "ogers, &2th Edn., &7=:, p. 4.
In case of !a0mi ei . #tate of )adhya 3radesh, )+CD)399429&9 +I" 29&& )3 :G the 1ourt going through the eracity of tortious liability obsered that negligence on part of treating octor or operating surggeon has to be necessarily established as HnegligenceH or Hgross negligenceH. Aecause it is e0pected from professional medical doctors and surgeon that they would perform their duty well and upto best of their ability. In absence of culpable negligence, no doctor or surgeon could be penalised or declared guilty of committing negligence. +pparently if the plaintiB has suBered an injury for which, apart from the contract, he could hae recoered damages, it is a tort, although it may also be a breach of contract and not less, if the tort has been suBered in the e0ecution or purported e0ecution of contract, Turner . #tallibrass, 6&=7=8 & A ;. /ence the distinction between HtortH and HcontractH is not a logical one and it is sometimes diBerent to say whether a particular thing is a wrong or a breach of contract.
In the case, #tate of "ajasthan . @idyawati, )+CD#1992;&72 +I" &72 #1 744 6&728 #upp 2 #1" 7=7, the plaintiB had claimed a damages for "s. 2;,999, but the court awarded only "s. &;,999. 1onsidering such element of tort, it can easily be distinguished from contract and bailment where the amount of loss is always pre-determined and inelastic. This de(nition also lac$s other remedies i>. 6a8 self-help 6b8 injunction and 6c8 actions for speci(c restitution of property.
J #elf help can be aailed by a person without going into a court of law. For e0ample, if + (nds a drun$en stranger 'A' in his room then + is entitled to get rid of him without force but if he does not succeed then he can use as much force which is reuired to eict the stranger from his room. #o, in Win(eld's de(nition, an action for unliuidated damages is not necessarily the primary remedy for a tort.
J Injunction is the order or judgment gien by the court to restrain the commission or continuance of some wrongful act or omission. For e0ample, in case of nuisance, the (rst remedy that would suggest itself is injunction and an action for damages would then follow. Thus, here injunction is the primary remedy and not the unliuidated damages which comes later.
J +ctions for speci(c restitution of property are the alternatie remedies in law of torts. When the plaintiB has been dispossessed of his land, chattels or goods by
wrong means then only such remedies are granted. It can be said here that an action for damages is not essentially the primary remedy.
Ay incorporating nature, scope and characteristic of torts in the Win(eld's de(nition it can be read as
HTortious liability arises from the breach of a duty primarily (0ed by law which results in an infringement of priate legal right of another and for which, ciil action for unliuidated damages, injunction, speci(c restitution of property or een selfhelp, as the case may be, can be maintained.H&
2. Essentials of Tort
What are the essentials of tort?
When the interest is protected, it gies rise to a legal right which in turn gies rise to a corresponding legal duty. #ome legal rights are absolute and its mere iolation leads to the presumption of legal damage. To constitute a tort or ciil injury following ingredients are necessary
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&. #.3. #ingh, !aw of Tort, :th Edn., p. .
6a8 + wrongful act or omission on the part of a person
6b8 That wrongful act or omission must result in legal damage to another and
6c8 The wrongful act must be of such a nature as to gie rise to a legal remedy in the form of an action for damages.
6a8 Wrongful act or omission
What is wrongful act or omission?
+ wrongful act or omission is said to hae been committed by a person who has not performed his duty li$e a reasonable and prudent person or has bro$en it intentionally.
In the case, "ogers . "ajendra utt, 6&=98 = )I+ &94 6&48 &4 )oore 31 297, it was obsered that 'the act complained of should, under the circumstances, be legally wrongful as regards the party complaining that is, it must prejudicially aBect him in some legal right merely that it will, howeer directly, do him harm in his interest is not enough'.
!egal right in words of +ustin is a 'faculty' which resides in a determinate party or parties by irtue of a gien law, and which aails against a party other than the party or parties in whom it resides. For e0ample, '+' erects a wall on his land which obstructs the light to A's house. +lthough it is undoubtedly a lawful act to erect a building on one's own land but since the neighbour has enjoyed uninterrupted light for years, he has acuired the legal right to hae this enjoyment, so erection of construction by + on his own land is an inasion of the right of A hence, not only damage but it is also unlawful and injurious.
+ wrongful act may be a positie act or an omission which can be committed by a person either negligentlyJ or intentionallyJJ or een by committing a breach of strict duty.JJJ
For instance, if a person dries his car at an e0cessie speed and with his rash and negligent driing injures any person on the road or $eeps a dog on his land which escapes and bites a person in the neighbourhood then such act of the said person is a positie wrongful act or omission and he can be held liable for this.
It would be pertinent here to mention that a breach of merely moral or religious duty can't be considered under this head but it must be a duty primarily (0ed by the law.
E0ample )oral uty
+, a lady who falls ill and reuests her neighbour A to loo$ after her since she is all alone. A ta$es care of '+' and e0tends all types of help li$e giing food and medicines to her and ma$ing her comfortable with his presence at the time of need. + recoered after sometime. Knce A fell ill, he reuested + to help him during his illness but + neer acceded to A's reuest and A due to lac$ of proper care and help became disabled. /ere, it was +'s moral duty to loo$ after A
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J Cegligence means when a person does not act with care and caution and said to be careless while performing his duty without applying prudence.
JJ Intention signi(es full adertence in the mind of the defendant to his conduct which is in uestion and to its conseuences, together with a desire, for those conseuences.
JJJ Areach of strict duty spea$s about liability of person een though he is not at fault. In "ylands . Fletcher it was laid down Hif a person brings or accumulates on his land anything which, if it escapes, may cause damage to his neighbours, he does so at his peril, if it escapes and cause damage, he is responsible, howeer careful he may hae been, and whateer precautions he may hae ta$en to preent damageH.L6&== !" 4 /! 4498.
during his illness and this duty cannot be held as legal duty. #ince, this moral duty has not been (0ed by law itself, A cannot ta$e any legal action against the lady '+'.
E0ample "eligious uty
In the case hadphale . Mura, 6&==&8 Aom &22, hadphale was a serant in the temple and had a right to get the food oBered to the idol and Mura was under obligation to oBer the food to idol but he failed to do so and the serant hadphale brought a suit against Mura for damages. It was held by the 1ourt that Mura was not under legal obligation to gie the food to the serant of the temple, failure to oBer the food to idol was a breach of religious duty and not the legal duty hence, the plaintiB was not entitled for damages.
amage to wall by water
In the case +nand #ingh . "amachandra, +I" &7;4 )3 2=, the defendant built two pucca walls on two sides of his house on his land resulting in damage to walls situated between the defendant's and plaintiB's houses. The Now of water in the lane damaged the plaintiB's walls. The plaintiB had not acuired any right of easement. The 1ourt was of the iew that the defendant by building the wall on his land had not in any way iolated the plaintiB's right therefore, no right of action was accrued to the plaintiB.
6b8 !egal amage
escribe legal damage. iscuss absolute and uali(ed damage with the help of releant cases.
!egal damage is second important ingredient in constituting a tort. amage means the harm or loss suBered or presumed to be suBered by a person as a result of some wrongful act done by another person. The sum of money which is awarded by the 1ourt to compensate 'damage' is called HdamagesH.
Kn the basis of presumption of damage rights are of two types 6i8 absolute and 6ii8 uali(ed.
In case of iolation of absolute right, the law conclusiely presumes damage although the person wronged may hae suBered no pecuniary loss whatsoeer. The damage so presumed is legal damage. In uali(ed rights, there is no presumption of legal damage and the iolation of such right is actionable only on proof of actual or special damage. In this case injury or wrong is not complete unless and until actual damage has been caused by iolating the rights.
In +shby . White, 6&G948 2 !ord "ayam 74=, the plaintiB's legal right to ote in the parliamentary election was maliciously iolated by the defendant and the defendant was held liable although the plaintiB not incurred any pecuniary loss. !ord /ott, 1.%. obsered-HEery injury imports a damage, though it does not cost the party one farthing, and it is impossible to proe the contrary for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his rightH.
In another case, )ar>etti . Williams, 6&=498 & A. assault, battery, deceit, slander or een in absence of such names and I shall be liable if I fail to proe lawful justi(cation. Kn this iew, the law of torttorts consist not merely of all those torts which hae acuired speci(ed names but also includes the wider principle that all unjusti(able harms are tortious. In the case, 1hapman . 3ic$er #. Mill, 6&G28 2 Wills &:; 6&:8, 3ratt, 1.%. held that 'Torts are in(nitely arious, not limited or con(ned. Aowen, !.%. in the case #$inner < 1o. . #$ew < 1o., 6&=748 & 1h :&4 6:228, obsered that Hat common law there was a cause of action wheneer one person did damage to another wilfully and intentionally without just cause or e0cuse.H
The second theory is also $nown as pigeon-hole theory. +ccording to this theory the law of torts consists of a net-set of pigeon-holes, each containing a speci(c tort. For e0ample, assault, battery, deceit, slander or any other tort. If the wrong committed by defendant does not (t in any of these pigeon-holes, then he has committed no tort. #ir %ohn #almond, an ardent supporter of this theory says, H%ust as the criminal law consists of a body of rules establishing speci(c oBences, so the law of torts consists of a body of rules establishing speci(ed injuries. Ceither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted for an alleged oBence or sued for an alleged tort, it is for my adersary to proe that the case falls within some speci(c and established rule of liability, and not for me to defend myself by proing that it is within some speci(c and established rule of justi(cation or e0cuse.H
;. 1onclusion
The (rst theory has got reinforcement by the court by repeatedly e0tending the domain of the law of tort by creating new torts i.e. torts to which speci(ed names hae been gien. For e0ample, tort of malicious prosecution, deceit, absolute or strict liability etc. #o, it is eident from such instances that the law of tort is steadily e0panding and that the idea of its being cribbed, cabined and con(ned in a set of pigeon-holes is not tenable. The (rst theory has got support from !ord )ans(eld in Mardiner . 1reasdale, 6&G98 2 Aurr 79;, in the year &G9 and in &G2, 3ratt 1.%. in the case 1hapman . 3ic$ers, gae his faour to this theory. It also got positie remar$ by Aowen, !.%. and /olmes %., in the cases #$inner < 1o. . #$ew < 1o. and +i$ens . Wisconsin, &7& 6&7;8 D# &7:, respectiely. There is still some controersy regarding second theory and diBerent authors hae aried iews. r. %en$s (nds that new torts can be created and this is perfectly consistent with this theory because new torts cannot come into being unless the courts regard them as substantially similar to torts which they hae already recognised.&
Aoth the theories hae their own merits and shortcomings and it depends upon the iewers who loo$s upon the theories from the angle he chooses.
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