A tort is a civil wrong. This is basically a breach of duty imposed by law, which gives rise to a civil right of action for a remedy not exclusive to any other area of law.
How the word tort came to India?
It came to India through England. In 1065 England was conquered by Normans, who were the French speaking people of Normandy, a region of France. After Norman Conquest, French become the spoken language in the courts in England, and thus many technical terms in English Law owe their origin to French and tort is one of them. The word tort is based on the idea that everyone in the society is having certain rights. The purpose of this tort law is to enforce the rights and duties.
Some Important definitions-
Black’s Law Dictionary defines a tort as – A civil wrong for which a remedy may be obtained, usually in the form of damages.
Salmond’s Definition- Tort is a civil wrong for which remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract, or the breach of trust, or other merely equitable obligation.
Winfield’s Definition- Tortious liability arises from the breach of duty primarily fixed by law. This duty is towards persons generally and it’s breach is repressible by an action for an unliquidated damages.
Fraser’s Definition- Tort is an infringement of a right in rem (right in general) of a private individual giving a right of compensation at the suit of the injured party.
Limitations Act, 1963- According to this act, tort is a civil wrong which is not exclusively a breach of contract or breach of trust.
Essentials of Tort – The essentials of tort are as follows-
- There must be a wrongful act.
- The wrongful act must result in legal damage to another person.
- It must give rise to a right.
Difference between tort and crime-
- A tort is a wrong against individual; whereas a crime is a wrong against the society.
- In tort the defendants will be sued in a civil court, whereas in a crime the defendants will be sued in a criminal court.
- The main purpose of the law of tort is to provide the individual who has suffered from any wrong, infringement of their right, with a remedy to enforce their rights, whereas the main purpose of the criminal law is to maintain law and order and protect the public.
- Standard of proof in tort should be balance of probabilities whereas in crime it should be beyond reasonable doubt.
- Burden of proof in torts rests with the claimants, whereas in crime the burden of proof rests with the prosecution.
Difference between tort and breach of contract-
- In case of tort damages are always unliquidated, whereas in the breach of contract the damages are liquidated.
- A tort is a violation of a right in rem, whereas breach of contract is an infringement of a right in personam.
- In tort, the duty is imposed by the law, and is owed to community at large whereas in breach of contract the duty violated is a specific duty owed by either party to other alone.
- In tort, sometimes motive is an essential factor, whereas in breach of contract motive is not an essential factor.
- Law relating to tort has not been codified, whereas law relating to contract has been codified.
Two principles to be remembered in torts, they are as follows:-
- Damnum sine injuria
- Injuria sine damnum
Damnum sine injuria means damage without injury. In other words, causing of damage, however substantial, to another person is not actionable in law unless there is also a violation of legal rights. Therefore, there will be no compensation for the plaintiff unless there is also a violation of legal rights.
Case laws for damnum sine injuria-
- Glaucester Grammar School Case– In this case, the defendant set up a rival school neae the plaintiff’s school, due to which the plaintiff suffered loss as his student started joining the defendant’s school. Due to this competition, the plaintiff has to lower down his fees. So plaintiff sued the defendant to seek compensation but no compensation was given as there was no violation of his legal rights.
- Ushaben v. Bhagya Laksmi Chitra Mandir– In this case the plaintiff sued the defendants for permanent injunction as movie “JAI SANTOSHI MAA” was hurting the religious sentiments as Goddess was depicted as jealous. No compensation was given as there ws no violation of the legal right.
- Mogul Steamship Co. Mc. Gregor’s Crew and Co- All the steamship companies united and drove the plaintiff’s company out of the tea trade company by reducing their freights due to which the plaintiff suffered losses. No compensation was given as the other companies were only doing marketing practices and also there wasn’t any injury to the plaintiff.
Injuria sine damnum– Injuria sine damnum means injury without damage. It is an infringement of an absolute private right without any actual loss or damage. Therefore plaintiff will be compensated if his legal rights are violated even though there is no actual loss or damage is suffered.
Leading cases for injuria sine damnum-
- Ashby v. White- Plaintiff was confined by returning officer due to which plaintiff was not able to cast his vote. Though the party in the election won the election but there was violation of the legal right of the person, so here compensation was granted.
- Bhim singh v. State of Jammu and Kashmir- In this case the petitioner was an MLA of Jammu Kashmir assembly who was wrongfully detained by the police while he was going to attend the assembly session. He was not produced before the Magistrate before the requisite period. As a consequence of this, the member was deprived of his constitutional rights. There was also the violation of the fundamental rights to personal liberty guaranteed under article 21 of the Indian Constitution. In this case the court ordered to pay exemplary damages of Rs 50,000 to the petitioner.
Submitted By:- Prerana Anand
(Editor @ Legal Bites)