Chapter 1

March 23, 2019 | Author: Kumar Mangalam | Category: Tort, Damages, Negligence, Restitution, Injunction
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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 giing rise to a ciil cause of action and for which compensation can be claimed and a damage is recoerable.

&. e(nition e(ni tion of Tort

)any authors hae 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-+ ciil wrong which is independent of  implied contract for which the appropriate remedy is an action for unliuidated damages.

 #almond and /euston

+ tort tort is a 'ci 'ciil 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 unliuidated damages, and which is not e0clusiely the breach of a contract or the breach of a trust or other merely euitable 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 ciil wrongs is a collectie name for the rules goerning many species of liability which, although their subject-matter is wide and aried, hae 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 unliuidated damages'.&

It would not be out of place to mention here that none of the aboe de(nition gies a wholesome information on torts which can be accepted in its totality. /oweer, the de(nition gien 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 unliuidated 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 aboe de(nition it is clear that liability arises from the breach of duty by a person but it has been seen that een 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 serant's wrong. In our country, it is the legal duty of  eery person who dries a ehicle to drie it carefully obeying tra*c rules and guidelines. For e0ample + appoints A as his car drier and one day + as$s A to fetch his relatie from railway station to +'s residence. In course of performing his duty A traels to station at e0cessie speed and hits a pedestrian causing him grieous injury. /ere A has committed a breach of duty primarily (0ed by the law, but his master + will also be held liable in ciil action under the rule of icarious liability.  This de(nition doesn't gie 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 seres 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 !iuidated and unliuidated damages - where the plaintiB in an action sues for a pre-determined and inelastic sum of money - it is a claim for liuidated damages. Aut if he sues for a sum which court, in its discretion, is at liberty to award, then he is said to hae a claim for unliuidated damages een though he has mentioned a particular 6(0ed8 sum of money in his pleadings.

 The action for unliuidated 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 [email protected]/. "ogers, &2th Edn., &7=:, p. 4.

In case of !a0mi ei . #tate of )adhya 3radesh, )+CD)399429&9  +I" 29&& )3 :G the 1ourt going through the eracity of tortious liability obsered 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 hae recoered 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#1992;&72  +I" &72 #1 744 6&728 #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 aailed 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 reuired to eict the stranger from his room. #o, in Win(eld's de(nition, an action for unliuidated damages is not necessarily the primary remedy for a tort.

J Injunction is the order or judgment gien 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 unliuidated damages which comes later.

J +ctions for speci(c restitution of property are the alternatie 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 priate legal right of another and for which, ciil action for unliuidated damages, injunction, speci(c restitution of property or een 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 gies rise to a legal right which in turn gies 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 ciil 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 gie 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 hae 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&48 &4 )oore 31 297, it was obsered 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, howeer 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 gien law, and which aails 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 acuired the legal right to hae this enjoyment, so erection of  construction by + on his own land is an inasion of the right of A hence, not only damage but it is also unlawful and injurious.

+ wrongful act may be a positie act or an omission which can be committed by a person either negligentlyJ or intentionallyJJ or een by committing a breach of  strict duty.JJJ

For instance, if a person dries his car at an e0cessie speed and with his rash and negligent driing 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 positie 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 reuests 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 giing food and medicines to her and ma$ing her comfortable with his presence at the time of  need. + recoered after sometime. Knce A fell ill, he reuested + to help him during his illness but + neer acceded to A's reuest and A due to lac$ 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 adertence in the mind of the defendant to his conduct which is in uestion and to its conseuences, together with a desire, for those conseuences.

JJJ Areach of strict duty spea$s about liability of person een though he is not at fault. In "ylands . Fletcher it was laid down Hif a person brings or accumulates on his land anything which, if it escapes, may cause damage to his neighbours, he does so at his peril, if it escapes and cause damage, he is responsible, howeer careful he may hae been, and whateer precautions he may hae ta$en to preent 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 serant 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 serant hadphale brought a suit against Mura for damages. It was held by the 1ourt that Mura was not under legal obligation to gie the food to the serant 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 acuired 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  releant 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 conclusiely presumes damage although the person wronged may hae suBered no pecuniary loss whatsoeer. 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.%. obsered-HEery injury imports a damage, though it does not cost the party one farthing, and it is impossible to proe 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 een in absence of such names and I shall be liable if I fail to proe lawful  justi(cation. Kn this iew, the law of torttorts consist not merely of all those torts which hae acuired speci(ed names but also includes the wider principle that all unjusti(able harms are tortious. In the case, 1hapman . 3ic$er #. Mill, 6&G28 2 Wills &:; 6&:8, 3ratt, 1.%. held that 'Torts are in(nitely arious, not limited or con(ned. Aowen, !.%. in the case #$inner < 1o. . #$ew < 1o., 6&=748 & 1h :&4 6:228, obsered that Hat common law there was a cause of action wheneer 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 adersary to proe that the case falls within some speci(c and established rule of liability, and not for me to defend myself by proing 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 hae been gien. For e0ample, tort of malicious prosecution, deceit, absolute or strict liability etc. #o, it is eident 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&G98 2 Aurr 79;, in the year &G9 and in &G2, 3ratt 1.%. in the case 1hapman . 3ic$ers, gae his faour to this theory. It also got positie remar$ by Aowen, !.%. and /olmes %., in the cases #$inner < 1o. . #$ew < 1o. and +i$ens . Wisconsin, &7& 6&7;8 D# &7:, respectiely. There is still some controersy regarding second theory and diBerent authors hae aried iews. r. %en$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 hae already recognised.&

Aoth the theories hae 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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