Law of Torts – Introduction
The word tort is originated from the Latin word “Tortum”, which means to twist. We can define the term tort as twisted, crooked, or unlawful. If we search the literal meaning of the term tort in English, it means wrong. It is originated in United Kingdoms (European Country)
In short, we can define torts as:
- Civil wrong
- Where we get unliquidated damages
The concept of Unliquidated damages has been defined in the Indian Contract Act,1872, under section 73. It simply means that the damages to be given are not pre-decided. It is decided according to the quantum of damages suffered by the aggrieved party.
The Concept of Law of Torts is not codified (not written), unlike other civil laws like contract act, Sale of Goods 1930, Transfer of Property Act, etc. which are codified (written). The Law of torts does not contain any sections; it is based on precedents. We can coin it like, the law of torts is developed through case laws.
There is nowhere defined the definition of a tort, except Section 2(m) of The Limitation Act,1963.
Difference between the law of Torts and Contract Act:
Both laws of torts and the Contract act fall under the ambit of civil laws. But there are some major differences, which distinguish torts from the contract, which are as follows:
- In the law of torts, the duty is imposed by the law, whereas in a contract act the duty is imposed by the parties.
- In contract, there is a concept of privity of contract, under which the third party cannot sue, whereas there is no such concept in torts.
- In torts, we get unliquidated damages, whereas in contracts we get both Liquidated as well as unliquidated damages.
Difference between Torts and Crime:
- In torts, we file a civil suit, whereas in criminal cases we file criminal prosecution.
- A tort is a private wrong as it is against a single individual and only affects that particular individual whereas crime is a public wrong, it is against society as a whole and affects the whole society.
- In torts, we can claim compensation, whereas in a criminal case the accused get punishment.
Elements of Law of Torts:
The law of torts contains three essential ingredients, which are as follows:
- Wrongful Act: To constitute an act under tort, it is vital that there must be a commitment of any wrongful act, here the term wrongful act means any act which is in violation of the rights of an Individual. Such as the right of property, if anyone trespasses anyone’s property, then that act is constituted as a wrongful act.
- Legal Damages: We cannot coin every wrongful act as tort, to constitute tort there must legal damage and legal remedy available for that violation. Well, there are two maxims covered under legal damages:
- Injuria Sine Damnum sounds a little complex, but while decoding it word to word, we can get the meaning and understand it easily, So the term Injuria means Injury, sine means without and Damnum means damages. The term Injuria sine Damnum means Injury without Damages. Here Injury means Violation of Legal Rights and damages referred to any monetary or comfort loss. A famous is associated with this, that is “Ashby Vs. White”.
- Bhim Singh v. State of J. & K
- Marzetti v. Williams
- Damnum Sine Injuria means Damages without Injury, if there is no injury (violation of legal rights) then there is no legal remedy available for it, thus it does not constitute a tort.
- Acton v. Blundell
- Gloucester Grammar School Case
- Legal Remedy, a legal maxim is associated with it, that is “Ubi jus ibi remedium” which means where there is a right, there is a remedy.
Liability Under Torts:
In torts, there are two types of liability, which are also known as no fault-based liability, which means even you are not doing that act, but because of you any damage occurs to another person, then you are liable. The type of liability as follows:
- Strict Liability – Under strict liability if any person brings any dangerous thing in his land or premises, and under any circumstances, it escapes and causes damage to another person. Then there is a liability imposed on that person, to compensate the person who suffered a loss the concept of strict liability was evolved in the case of Rylands v. Fletcher.
Brief summary of the case:
Rylands and Fletcher were two neighbors, Rylands was having mines in his land, whereas Fletcher was owning a mill, and Fletcher decided to build a reservoir on his land, he appointed independent contractors to build the reservoir, but due to negligence of contractors, the whole water of reservoir reached to the mines shaft of Rylands. Now here court decided that Fletcher will pay the damages to Rylands.
There are certain exceptions to strict liability. Under these circumstances the principle of strict liability is not applicable, these are as follows:
- Plaintiffs own fault- When the plaintiff suffers damages, but because of his own act.
- Act of God – When due to any natural disaster like earthquake, flood, or tsunami, the plaintiff occurs damages, then the other person is not liable under strict liability.
- Volenti non-fit injuria – if the person is willingly agreeing to suffer damages, then here the other is not liable under strict liability.
- Absolute Liability – The concept of absolute liability is applicable to Enterprises that are dealing in hazardous work and if causes damage to the person or worker in the factory then the principle of absolute will be applicable. Here escape is not necessary. There are no exceptions in absolute liability as it is mentioned in strict liability. There is a famous MC Mehta v. Union of India also known as the Bhopal gas tragedy, the concept of absolute liability is evolved from this case for the first time.
A tort is a civil law which differs from other civil law such as Indian Contract Act 1872, Sale of goods act 1930, etc. The concept of tort is based on precedents. The definition of word torts is mentioned in the limitation Act 1963, Section 2(m). To constitute torts these must be present three elements, which are wrongful acts, legal damage, and Legal remedy. Liability under torts is also covered in a comprehensive manner under the concept of liability it is further classified into a strict and absolute liability.
Case Summary: Bhim Singh vs. State of Jammu and Kashmir, available at: https://lawlex.org/lex-bulletin/case-summary-bhim-singh-vs-state-of-jammu-and-kashmir/23838 (Last accessed on 22 May 2021)
Author: Deepak Kumar Chaurasia,
CHANDIGARH UNIVERSITY / LAW STUDENT