Definition, Nature and Scope of Tort and important maxims
Tort in Latin word means tortum. A tort is unliquidated damages. The tort French word is wrong. It implies conduct that is twisted or wrongful. In Roman law, tort corresponds to delict. The tort is a breach of a duty independent of any contract or crime.
There are two types of wrongs: –
1)Civil wrong is divided into two parts: –
- a) Civil wrong which has no legal action.
- b) Civil wrong which breaks legal action.
Criminal wrong differs from civil wrongs. Criminal wrongs are behaviors that harm society as a whole rather than one individual. When people violate the criminal law there are generally sanctions that include fines.
Definition of Tort: –
1)John Salmond defines a tort as,” a civil wrong which the remedy is common for unliquidated damages which do not breach of contract, breach of a tort, quasi- contractual law.”
2)Clerk and Lindsell defines a tort as,” a civil wrong independent of contract for which the appropriate remedy is common law.”
3)Ratanlal and Dhirajlal define tortas,” a civil wrong, independent of contract for which appropriate remedy is an action for damages.”
Nature of Tort: –
1)Tort is a civil wrong.
2)It is an infringement of a right in rem and not a person am.
3)Right is infringed by law independent of the consent of parties.
4)Right is fixed by law, independent of the consent of parties.
5)In England, the remedy for violation of such legal right is common law.
6)The remedy for violation of the right is compensation in terms of money damages.
Scope of Tort: –
Difference between Tort and Crime: –
|1.The wrongdoer must compensate the injured party.||1.The offender is punished by the State.|
|2.The suit is filed by the plaintiff.||2.Action is taken by the State.|
|3.Damages or compensation is given by wrongdoers.||3.In crime, it’s the rigorous punishment that is given.|
Difference between Tort and Contract: –
|1.Tort is inflicted against the will of the parties.||1.Obligation is founded on the consent of the parties.|
|2.There is no purity between the parties.||2.There is purity between the parties.|
|3.Tort is unliquidated damages.||3.Contract is liquidated damages.|
|4.Motive is relevant.||4.Motive is not relevant.|
DAMNUM SINE INJURIA: –
Damnum means damage in the ordinary sense which may be loss of money or physical hurt, loss of health or life. Injuria means a legal injury that is a tortious act. Sine means without act. Hence, the meaning of the maxim” Damnum Sine Injuria” is damage without the infringement or violation of any legal injury where there is no infringement of loss resulting from an act or omission will not give the act of omission wrongful even if the loss is substantial and even irreparable damage thus suffered in the absence of any violation of a legal right is known as Damnum Sine Injuria.
“Damnum Sine Injuria” is actual without the infringement of any legal right no action lies no suit of damage can be filed. For e.g., If A has a coaching class and his neighbour B starts a new coaching class, A cannot bring legal action and yet A has suffered substantial damage.
Gloucester Grammar School Case, in this case, the defendant a schoolmaster set up a school that of a plaintiff with the result that the student from the plaintiff school to flock the defendant school. The plaintiff sued the defendant for the loss. The Court held that no suit could lie because bonafide competition can afford no ground for action whatever damage it may cause.
INJURIA SINE DAMNUM: –
This maxim is the reverse of maxim Damnum Sine Injuria. This maxim is an injury without damage. When there is a violation of legal right the person in whom the right is wasted is entitled to bring an action and recover the damages although suffered no actual harm. In such cases, it is necessary to show the actual loss and in such cases, the law will presume damage. Thus, in the case of trespass, a mere wrongful act is actionable. Every violation of private property however minute is a trespass and not actual damage.
Ashby v. White, in this leading English case, the defendant a returning officer at a voting booth, wrongfully refused to register a duly tendered vote of the plaintiff, who was a qualified voter. The candidate for whom the vote was sought to be tendered was, however, elected and no actual loss was suffered by the rejection of the plaintiff’s vote. The Court held that the plaintiff had a right to vote and this legal right was violated by the defendant.
RES IPSA LOQUITOR: –
The meaning of this maxim is that ‘the thing speaks for itself.’ In some cases, the general rule of ruling affirmatively the defendant’s negligence is released by applying the above maxim and in such cases when an accident takes place due to negligence of the defendant, the plaintiff has to prove only the accident and nothing more. As there would be a presumption of negligence under the above maxim. Thus, if A accuses B of negligence, A has to prove that B was negligent. Notwithstanding this general rule, in certain cases, the mere fact that a particular accident has taken place may become prima facie evidence of negligence. Thus, if a hammer falls out of a window, it could be a case of mischief. But if the chair falls from the window, it’s gross negligence.
National Small Industries v. Bhima Shankar Nath, in this case, inflammable material was stored in a room which was in exclusive control of the defendant and his worker. Due to the habits of smoking bidis and cigarettes inside the premises during the working hours of workers one day a fire broke out causing substantial damage to the building of the plaintiff. The High Court applied this maxim only to prove the accident is sufficient to prove the negligence of the defendant.
Author: Shreya Potdar,
S.N.D.T LAW COLLEGE