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TORT and ITS ESSENTIALS

This document provides definitions and explanations of key concepts in the law of torts. It begins by defining tort as a civil wrong, other than breach of contract, that allows the wronged party to obtain a legal remedy, usually damages. It then discusses the essential elements of a tort: 1) a wrongful act by the defendant that 2) causes legal damages to the plaintiff and 3) is the type of act that can give rise to a claim for unliquidated damages. The document explains important tort concepts like injuria sine damno, where infringement of a right is actionable even without damages, and damnum sine injuria, where actual loss does not constitute a tort if no right was infringed.

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Malik Kaleem Awan
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1K views

TORT and ITS ESSENTIALS

This document provides definitions and explanations of key concepts in the law of torts. It begins by defining tort as a civil wrong, other than breach of contract, that allows the wronged party to obtain a legal remedy, usually damages. It then discusses the essential elements of a tort: 1) a wrongful act by the defendant that 2) causes legal damages to the plaintiff and 3) is the type of act that can give rise to a claim for unliquidated damages. The document explains important tort concepts like injuria sine damno, where infringement of a right is actionable even without damages, and damnum sine injuria, where actual loss does not constitute a tort if no right was infringed.

Uploaded by

Malik Kaleem Awan
Copyright
© © All Rights Reserved
Available Formats
Download as PDF, TXT or read online on Scribd
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INSTRUCTOR: MALIK KALEEM AWAN

L.L.B, UNIVERSITY TOPPER

OVER ALL 2ND POSITION, 2020

ASPIRANT OF CSS

LAW OF TORTS
Law of Torts is the branch of law “controlling the behavior of people in the
society”. It is a growing branch of law and its main object is “to define individual
rights and duties in the light of prevalent standards of reasonable conduct
and public convenience.”
It provides pecuniary remedy for violation against the right of individuals. The entire
Law of Torts is founded and structured on the principle that, “no one has a right to other
intentionally or
even innocently."

TORTS: ITS ESSENTIALS


Meaning:-
The word ‘Tort’ is derived from Latin term 'tortum' which means ‘to twist’ or a
deviation from straight or right conducts and includes that conduct which is not straight
or lawful.
A civil wrong that causes infringement of the rights of the persons generally. This wrong
is exclusive of the breach of contract, breach of trust, any criminal wrong, breach of
bailment etc. The remedy for such wrong is action for unliquidated damages.

BLACK’S LAW DICTIONARY


“A civil wrong, other than breach of contract, for which a remedy may be obtained,
usually in the form of damages.”

DEFINITION OF THE TERM ‘TORT’


According to WINFIELD
“ Tortious liability arises from the breach of a duty primarily fixed by the law:
this duty is towards persons generally and its breach is redressible by an action
for unliquidated damages.”
1- Breach of duty
There must be breach of duty for the occurrence of tort. So, it is pre-
supposed that there must be pre-existing legal duty of defendant towards
the plaintiff.
2- Primarily fixed by the law
This duty is independent of agreement or consent of parties. It being
primarily fixed by law differs from contractual liability or that arising out of
a bailment.
In tort content of duty is determined by law as opposed to contractual
duties which contract itself defines.
3- Duty towards people generally
Because, here, duties are independent of or free from the consent or
agreement of the parties; therefore, they are towards people generally
and not merely towards particular or specific persons.
Example; duty not to trespass upon the land of others
4- Breach redressible by an action for unliquidated damages
‘Unliquidated’ denotes to not pre-determined or inelastic. The element of
court’s discretion.
Even plaintiff may specify sum of money in the plaint while claiming them
via pleading.
Unliquidated damages are not the only remedy; there may be some other
depending on the discretion of court.

SALMOND’S DEFINITON
“A civil wrong for which the remedy is a common law action for
unliquidated damages, and which is not exactly the breach of contract or
the breach of trust or other merely equitable obligation.”
Following types of wrongs stands does not fall within the purview of tort;
1- Wrongs that are exclusively criminal in nature
2- Civil wrongs giving rise to no action for unliquidated damages but some
other form of civil remedy exclusively
3- Exclusive breach of contract
4- Wrongs that are breach of trust or some equitable obligation.
“Every tort is a civil injury but not every civil injury is a tort unless remedy for
it is an action for damages.”
There may be the case when some other remedies are available i.e. in case of
private nuisance, an injunction may be granted in addition to damages.
Or restoring parties to the same position as was before the tortious liability
arose.

ESSENTIALS OF TORT
To constitute tort, following conditions must be satisfied.
1- Commission of wrongful act by defendant.
2- The said act must end in some legal damages to another person
3- Its nature must be such as may give rise to a legal remedy in the form of
action for unliquidated damages.
1- WRONGFUL ACT
The defendant commits an act or omission, without just cause or excuse, in the
contravention of his duties and obligations towards the plaintiff.
This said omission or commission may cause some damage or harm to the
plaintiff.
The prejudicial impacts on plaintiff in the exercise of his legal right, both public
and private.
Legal right: capacity residing in one person of controlling the actions of others.
State assent and sanction is sine qua non for it.
In order to make a person liable for a tort, he must have done some legal wrong that is,
violates the legal right of another person for example, violation of right to property,
right of bodily safety, right of good reputation.
A wrongful act may be positive act 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, driving a vehicle at an excessive speed

SOCIAL OR MORAL WRONG AND TORT


. The wrongful act or a wrongful omission must be one recognized by law. If there is a
mere moral or social wrong, there cannot be a liability for the same. For example, if
somebody fails to help a starving man or save a drowning child.
But, where legal duty to perform is involved and the same is not performed it would
amount to wrongful act. In Municipal Corporation of Delhi v.Subhagwati, where the
Municipal Corporation, having control of a clock tower in the heart of the city does not
keep it in proper repairs and the falling of the same results in the death of number of
persons, the Corporation would be liable for its omission to take care. Similarly failure to
provide safe system would, also amount to omission, held in General Cleaning
Corporation Limited v. Christmas.

2- LEGAL DAMAGES
Then, the said wrongful act or omission must bring about some legal damage to
plaintiff. It is neither pecuniary nor actual damages.
“Legal damage occurs when there is breach of legal duty or when plaintiff’s
right recognized by law is infringed.”
In order to prove an action for tort, the plaintiff has to prove that there was a wrongful
act, an act or omission which caused breach of a legal duty or the violation of a legal
right vested in the plaintiff. So, there must be violation of a legal right of a person and if
it is not, there can be no action under law of torts.

If there has been violation of a legal right, the same is actionable whether the
plaintiff has suffered any loss or not.

CASE LAW: ASHBY VS. WHITE


LORD HOLT C.J. observed that “every injury imports a damage, though
it does not cost the party one farthing( a former monetary unit and coin of
U.K.),and it is impossible to prove the contrary, for a damage is not merely
pecuniary, but an injury imports a damage, when a man is thereby
hindered of his right.”
In an action for slanderous words, though a man does not lose a penny by
reason of them being uttered, yet he shall have an action. Or action against
riding over someone’s ground, though it does no damage, for it is invasion
of its property and the other has no right to come here.

To determine the legality or otherwise of damages, two maxims are


useful.
1- INJURIA SINE DAMNO
2- DAMNUM SINE INJURIA

INJURIA SINE DAMNO


This maxim means infringement or violation of a legal private right of a person even if
there is no actual loss or damage.
In such a case the person whose right is infringed has a good cause of action. It is not
necessary for him to prove any special damage. The infringement of private right is
actionable per se. What is required to show is the violation of a right in which case the
law will presume damage. Thus, in cases of assault, battery, false imprisonment, libel
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.
Thus, this maxim provides for,
1) Infringement of a legal right of a person.
2) No actual loss or damage is required to prove.
3) Infringement of a private right is actionable per se.

CASE LAW: In Ashby v. White,


FACTS: the plaintiff was a qualified voter at a Parliamentary election, but defendant, a
returning officer, wrongfully, maliciously and fraudulently refused to take plaintiffs vote.
No loss was suffered by such refusal because the candidate for whom he wanted to vote
won the election. Plaintiff succeeded in his action.

RULING: Lord Holt, C.J., observed as follows, "If the plaintiff 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 a
remedy, for want of right and want of remedy are reciprocal"

“But no action can be taken when there is neither injuria nor damno.”
In case, the returning officer while acting in good faith and without malice or
bad motive, refuses to receive the vote of person legally qualified to vote. No
action will lie.

DAMNUM SINE INJURIA


Damnum sine injuria means an actual and substantial loss without infringement
of any legal right. In such a case no action lies.
Reason being that Tortious liability is contingent upon breach of legal duty or
infringement of a right.
The essential requirement is the violation of a legal right.
Example of competitive trade and resulting loss of money to one party.

GLOUCESTER GRAMMER SCHOOL CASE: The plaintiff suffered loss of fee


because the defendant setup a rival school next door. It was held that no action
would lie because there was no infringement of the plaintiff’s right.

3- LEGAL REMEDY
UBI JUS UBI REMEDIUM( There is no right without remedy).
An action for unliquidated damges. There may be some other remedies
depending upon the nature of wrong and discretion of the court.

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