This article is written by Anurag Maharaj, student of law at Lloyd Law School, Greater Noida. I have tried to define the word ”Tort” and its ingredients in this article.
Tort is derived from Tortum which is a Latin word that means twisted act. Tort is a civil wrong. It is not a crime or a criminal offence. Some torts such as defamation, simple hurt etc. are crimes as well. Civil wrong implies that the remedy for the tortuous action will be available in a civil court and not a criminal court.
It needs to be a legal duty which is violated. A violation means not obeying and violating a rule either by not doing something that the law allows you to do or by doing something that should not be done).
Essential Ingredients of Tort
The essential ingredients of tort are:
1. Wrongful Act/ Wrongful Omission by Defendant
2. Legal Injury
3. Legal remedy
There must be an error or some act on the defendant’s part. An act or omission is incorrect if the individual claimed to be held responsible had a legal obligation to do so. Legal recognition should be granted of the specific act or omission. That shouldn’t be a legal or social fault. It may be intentionally or negligently committed.
Examples: Committing a trespass, defamation, false imprisonment etc.
An unjust act must be performed for a tort to occur. This may occur either by execution of the tort i.e. a wrongful act that is actually performed or by Omission i.e. the act that were meant to be done but were not done.
Glasgow Corp. v. Taylor 1922 1AC 44
Glasgow Corporation was in charge of maintenance of a public park which contained a poisonous tree. A child who was playing in the park plucked a fruit from the poisonous tree and died upon consumption. It was held that Glasgow Corp. is liable for tort because of their wrongful omission of not cutting off that tree, or erecting a fence or a warning to dissuade or adequately warn the public about the poisonous tree.
Christie v. Davey 1893 1Ch. 316
Christie and Davey were neighbours. Christie used to teach music at her home which used to annoy Davey. Davey started banging on the walls of Christie’s house and behaved abusively and tormented the students and did not allow classes to function. It was held that actions of Davey were tortuous and the same were ordered to be stopped by an injunction
2. Legal damage
“Damage” means the harm or injury that a person has suffered or is expected to suffer as a result of any wrongful act of another person. The difference between the terms “damage” and “damages” is that the damage refers to the loss suffered by someone while damages refer to the compensation awarded by the court to the victim for the losses suffered by him.
There are two maxims that help us decide whether a defendant has a legitimate argument in tort law i.e. whether he can bring a person to court or not. They are: Injuria Sine Damnum and Damnum Sine Injuria
Injuria Sine Damnum
Legal injury without actual damage. It is a tort which is maintainable for restitution by unliquidated damages in law.
Ashby v. White 1703 2 Lord Raym 938
Voter was stopped from casting his vote by policeman. Even though the candidate who voter wanted to vote for won and there was no actual damage, yet the voter was held entitled to damages because he suffered a legal injury i.e. his right to vote was violated
Bhim Singh vs State of J K AIR 1986
Plaintiff was an MLA and was wrongfully arrested while going to assembly session. He was not produced before a magistrate within the requisite period. It was held that this was the violation of his fundamental rights. Even though he was released later, he was awarded 50,000RS as exemplary damages by SC.
Damnum sine Injuria
Damage without legal injury. For instance, a Sagar Ratna Restaurant suffered heavy losses when McDonalds outlet opened nearby. There was damage to the finances of Sagar Ratna, however no remedy lies. Since opening of McDonalds outlet causes no legal injury to Sagar Ratna.
Gloucester Grammar School 1410 Y.B. 11 Hen. IV of 47
The defendant opened a school with cheaper fees next to plaintiff’s school which lead to economic losses to the plaintiff. However, the plaintiff had no tortious action because Damnum sine Injuria was applicable. There were damages caused but they did not constitute a legal injury.
Chesmore vs Richards 1879
Plaintiff had been drawing water from underground for the past 60 yrs. The defendant sunk a bore well on his land and drew huge quantity of water which diminished the water supply of the plaintiff. It was held that the defendant was not liable because he was only exercising his right and did not violate any right of the plaintiff
3. Legal Remedy
The wrongdoing done by the defendant should come under the list of wrongs for which the remedy is a common-law action. A civil injury is a tort, but not all of them. An appeal for damages is the necessary cure for tort, but certain remedies may also be obtained, for example, in addition to damages in other instances of wrongs, or the complainant’s own intervention without going to trial, i.e. self-help
Ubi Jus Ibi Remedium
The literal meaning of the maxim is where there is a wrong there is a remedy. Sardar Amarjit Singh Kalra v. Promod Gupta & Ors., The court held that the principle of ubi jus ibi remedium is accepted as a basic concept of the law. The Supreme Court also held that it is the court’s responsibility to protect and preserve the right of parties and to support them, rather than denying them relief.
So, If the rights of a person are violated by another person then, he can claim for compensation from the wrongdoer for the loss that he suffered. This helps in respecting the rights of each and every person.
There are three constituents of torts:
Wrongful act: a wrongful act must have done on the defendant’s side.
Legal damage: Due to the wrongful act, there must result in legal harm of another person.
Legal remedy: The wrongful act must be of such a kind that it should have a legal remedy in the form of a damages action.
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