Meaning :-
A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment in fact that an individual suffers. Tort, in common law, civil law, and the vast majority of legal systems that derive from them, any instance of harmful behaviour, such as physical attack on one’s person or interference with one’s possessions or with the use and enjoyment of one’s land, economic interests under certain conditions, honour, reputation. A tort, in common law jurisdiction, is a civil wrong other than breach of contract that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things.
Tort law involves claims in an action seeking to obtain a private civil remedy, typically money damages. Tort claims may be compared to criminal law, which deals with criminal wrongs that are punishable by the state. A wrongful act, such as an assault and battery, may result in both a civil lawsuit and a criminal prosecution, although in the U.S., the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which also provides civil remedies after breach of duty that arises from a contract; but whereas the contractual obligation is one agreed to by the parties, obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract. In both contract and tort, successful claimants must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty.
Tort came into English straight from French many centuries ago, and it still looks a little odd. Its root meaning of “twisted” (as opposed to “straight”) obviously came to mean “wrong” (as opposed to “right”). Every first-year law student takes a course in the important subject of torts. Torts include all the so-called “product-liability” cases, against manufacturers of cars, household products, children’s toys, and so on. They also cover dog bites, slander and libel, and a huge variety of other very personal cases of injury, both mental and physical—Torts class is never dull. If you’re sued for a tort and lose, you usually have to pay “damages”—that is, a sum of money—to the person who you wronged.
A wrongful act other than a breach of contract that injures another and for which the law imposes civil liability : a violation of a duty as to exercise due care imposed by law as distinguished from contract for which damages or declaratory relief as an injunction may be obtained.
Essentials or constituents of tort :-
- Wrongful act or omission.
- Wrongful act or omission must result in a legal damages.
- Wrongful act or omission must be of such nature so as to give rise to a legal remedy
Wrongful Act or Omission :-
The first essential ingredient in constituting a tort is that a person must have committed a wrongful act or omission i.e., he must have committed a breach of that duty which has been fixed by law itself. The question, therefore, arises what then in law, a duty is. It may mean that there is some legal limitation or restriction on the conduct of a person that he should behave in such a manner as a reasonable person would have behaved in like circumstances. If a person does not observe that duty like a reasonable and prudent person or breaks it intentionally, he is deemed to have committed a wrongful act.
A wrongful act may be a positive ace or an omission which can be committed by a person either negligently or intentionally or even by committing a breach of strict duty. For example, if a person drives his motor cycle at an excessive speed in violation of law or fails to perform a duty as required by law, or beats a person in order to take revenge or keeps a lion on his land which escapes and injures a person on the road, he can be made liable for positive wrongful act or omission in negligence, battery or breach of strict duty, as the case may be.
But it may be noted that, a breach of merely moral or religious duty will not suffice; it must be a duty primarily fixed by law. For example, once Miss A was seriously ill and she was all alone in her house. She requested her neighbour B to look-after her. B did this i.e., he brought medicines, cooked food for her and served her also. She became alright .After sometime B fell ill and by chance he was alone in his house. He then requested Miss A to look –after him. But Miss a never acceded to his request with the result B suffered a lot and became disabled. In this case Mr. B cannot take any legal action against Miss A as the duty is simply a moral duty and has not been fixed by the law itself.
Even if it is a breach of a religious duty, which is not imposed by law, an action cannot be maintained.
A case worth mentioning in this area is of DHADPHALE V. GURAV (1881) 8 BOM122. In this case the facts briefly were that Dhadphale, a servant of the Hindu temple, had a right to get the food offered to the idol. The defendant Mr. Gurav, was under an obligation to the idol to offer the food, but he did not do so. The servant, therefore, brought a suit against him for damages. It was held by the court that the defendant was under no legal obligation to supply food to the temple’s servant, and though, his omission to supply food to the idol might involve loss to the plaintiff, it was a breach of religious duty, and could not entitle the plaintiff to maintain a suit.
Roger V. Ranjendro Dutt. The court held that, The complained of should, under the consequences, be legally wrongful, as regard the part complaining. That is’it must prejudicially affect him in some right, merely that it will however directly do harm in his interest is not enough.
So, therefore, duty must be from the very first must fixed by law. But if an act has been done by a person involuntarily or under the influence of pressing danger, he will not be deemed to have committed a breach of legal duty. Again if an act or omission is done under some lawful excuse, it would not amount to breach of legal duty or a wrongful act. For example, a police officer in following a thief trespassed the land of Mr. B. Here the police officer will not be deemed to have committed a breach of legal duty because of lawful excuse or justification.
The crucial test of a breach of legal duty or a legally wrongful act or omission, however, is its prejudicial effect on its legal right of another person which is dealt with under the heading legal damage i.e., “infringement of private legal right”, the second essential of tort. Because without injuria (i.e., infringement of private legal right) a person does not become a tort- feasor, although he might have committed a breach of legal duty. For example, driving of a motor-cycle on the wrong side is a breach of legal duty and is not actionable in tort unless somebody is injured.
Legal Damage :-
In general, a tort consists of some act done by a person who causes injury to another, for which damages are claimed by the latter against the former. In this connection we must have a clear notion with regard to the words damage and damages.
The word damage is used in the ordinary sense of injury or loss or deprivation of some kind, whereas damages mean the compensation claimed by the injured party and awarded by the court.
Damages are claimed and awarded by the court to the parties. The word injury is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not.
The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria and Injuria Sine Damno.
(i) Damnum Sine Injuria (Damage Without Injury)
There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage without injury. Damage without breach of a legal right will not constitute a tort. They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one’s own premises.
In Gloucester Grammar School Master Case , it had been held that the plaintiff school master had no right to complain of the opening of a new school. The damage suffered was mere damnum absque injuria or damage without injury. Acton v. Blundell , in which a mill owner drained off underground water running into the plaintiff’s well, fully illustrate that no action lies fro mere damage, however substantial, caused without the violation of some right.
There are moral wrongs for which the law gives no remedy, though they cause great loss or detriment. Los or detriment is not a good ground of action unless it is the result of a species of wrong of which the law takes no cognizance.
(ii) Injuria Sine Damno ( injury without damage
This means an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of action. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right. Every person has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of special damage. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved.
This principle was firmly established by the election case of Ashby v. White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The candidate for whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff.
Legal Remedy :-
The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no wrong without a remedy’. If a man has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without remedy; want of right and want of remedy are reciprocal.
Where there is no legal remedy there is no wrong. But even so the absence of a remedy is evidence but is not conclusive that no right exists.
Therefore if we mathematically try to explain tort, the following formula is deducible: Wrongful act + Legal damage + Legal remedy= Torts.
Aishwarya Says:
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
Do follow me on Facebook, Twitter Youtube and Instagram.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.
We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge