law of tort

This article is written by  Mohit Bhardwaj, a BBA-LL.B student of Unitedworld School of Law, Karnavati University. In this article, I’ll he describes the meaning of tort and its various basic elements.

INTRODUCTION TO TORTS

The word tort is derived from the Latin term tortum which means twisted, crooked or unlawful i.e. the act which is not legal or which is not clear or which is twisted is known as a tort.

The person who commits a tort is known as a tortfeasor or the wrongdoer

Some definitions of torts given by learned scholars -:

Salmond – It is civil wrong for which the remedy is common law action for unliquidated damages which is not exclusively breach of trust or other merely equitable obligation.

Winfield- Tortious liability arise from the breach of duty primarily fixed by law,this duty is towards persons generally and its breach is redressable by an action of unliquidated damages.

An analysis of the several definitions of ‘Tort’ reveals several elements which can be laid down as, 

1. A wrongful act or omission 

2. Legal Damage and 

3. Legal Remedy

The detailed discussion is as follows-:

1. A wrongful act or omission 

The first essential ingredient in constituting a tort is that an individual must have committed a wrongful act or omission that means he must have done some act which he wasn’t expected to do or he must have omitted to do something which he was assumed to do. There must be a breach of duty which must be recognized by law, itself. 

If an individual doesn’t follow that duty sort of a reasonable and prudent person or breaks it intentionally, he’s deemed to commit a wrongful act. To make an individual responsible for a tort he must have done some legal wrong that violates the legal right of another person, as an example, violation of the right to property, right of bodily safety, right of excellent reputation. 

A wrongful act also refers to an overt act or an omission that may be committed by an individual either negligently or intentionally or perhaps by committing a breach of duty, for example, driving a vehicle at an excessive speed.

A wrongful act may be civil or criminal. Tort belongs to the category of civil wrongs, the injured (plaintiff) party initiates civil proceedings against the wrongdoer (defendant). The casualty is compensated by the defendant for the injury caused to him by another party. It is to be noted that the wrongful act or omission must be recognized as unlawful. Therefore a mere social wrong or moral wrong is not enforceable in the court of law, e.g. if somebody fails to assist a starving man or save a drowning child is simply an ethical wrong hence not liable. 

Some examples of wrongful acts are-: 

Erection of wall– If a person erects a wall into the premises of another person. 

The escape of dog– If an individual owns a dog and if he keeps the dog escape which dog injures a person then the owner of the dog is going to be held responsible. 

Trespass- If somebody enters the premises of others without permission.

Case-1 Glasgow Corporation v Taylor [1922] 1 AC 44 

In this case, the corporation fails to place proper fencing to stay the youngsters faraway from a toxic tree and a toddler plucks and eats the fruits orchestra the poisonous tree and dies and the corporation did nothing to stop the damage, so they will be responsible for such omission. 

Case-2 General cleaning corporation Ltd V. Christmas 1953 AC 180 

In this case, the employer didn’t provide a secure system of labour for his or her employee, Mr. Christmas belt for a secure system of work responsible for the consequence of such omission. The employer contains a duty to produce safety instructions. Thus, an employer should take guardianship to produce a secure system of labour for his or her employees, whether they have years of experience or not.

A tort is other than the breach of contract or breach of trust, to come to a decision whether the incorrect maybe a tort or not, the subsequent steps are to be followed, 

(a) Whether the wrongful act which is committed is civil or criminal. 

(b) If it’s a wrongdoing, it’s to be further seen that whether it belongs to a different recognized category of the civil wrongs, like a breach of contract or breach of trust. 

(c) it’s only the wrongful act doesn’t belong to the other category of the wrong that’s, breach of contract or trust, it’s a tort and if the act may be a breach of contract or trust, it’s not a tort. However, if the act involves two or more civil wrongs, one among which can be a tort, in such a case casualty one can either claim damages under the law of torts or under another breach of wrongdoing, as an example, breach of contract, but cannot claim damages twice. 

Legal Damage and Legal Remedy 

To constitute liability in tort there must be legal damage or there must exist injuria which implies infringement or violation of legal rights. The significance of legal damages is expressed by two maxims, “Injuria sine damnum ‘Injuria’ refers to infringement of a right, and also the term ‘damnum’ means substantial harm, loss, or damage. The term ‘sine’ means without. However, if there’s no violation of a right, no action can be taken against the defendant despite any loss or damage caused by his action. This can be expressed by the maxim ‘Damnum sine injuria.

Award of damages is an ordinary and essential remedy in torts. Legal Damage is the prime remedy available in torts. The law of tort is claimed to be a development of the maxim ‘Ubi jus ibi remedium’ which implies wherever there’s right there’s a remedy. So right must be followed by remedy.

So these are the essential elements of the law of torts which might be inferred from the assorted definitions of torts.

Latest Posts

Archives


Related posts:

Call for papers: ‘Lex Terra’, a webzine,by NLUJAA CELAR
Online Moot Court Competition: DoL, Panjab University
National Opinion Writing Competition : Navrachna University

Leave a Reply

Your email address will not be published. Required fields are marked *