Notes on the Law of Torts
(References will be provided to our clients only)
These notes on law of torts are only for information and broad knowledge of thevisitors. We have the details and the references of the relevant provisions of law of torts. Actual application law of torts in the drafting of the counter-claim requires in-depth knowledge and experience of law of pleadings, torts, banking and procedural laws etc. Novice applications in law of torts may even spoil the case. We received several cases for redrafting of the counter-claims on account of such technical legal mistakes. Proper application of law of torts enhances the success of litigation in India.
The law of Torts is part of the common law,"It has also been held that section 9 of the Code of Civil Procedure, which enables a CivilCourt to try all suits of a civil nature , impliedly confers jurisdiction to apply the law of Torts asprinciples of justice, equity and good conscience. " -
Union
Carbide
Corporation
v
Union
of India,
1988 MPLJ 540.
As stated by Lord Scarman: " The common law, which in a constitutional contextmeans judicially developed equity, covers everything which is not covered by statutes - - -the function of the court is to decide the case before it, even though the decision mayrequire the extension or adaptation of a principle or in some cases the creation of anew law to meet the justice of the case, - - " -
Macloughlin
v.
O'Brian,
(1982) All ER298 (310) (H.L) This is a good basis for the application of the law of torts.Our Supreme Court in respect of law of torts has said - - - if an occasion arises the Courtcan be more progressive than the English Courts in respect of law of torts and can evolve newprinciple of tort liability not yet accepted by the English law. In the words of B
HAGWATI
C.J. " Wehave to evolve new principles and lay down new norms which will adequately deal with newproblems which arise in a highly industrialised economy. We can not allow our judicial thinking tobe constricted by reference to the law as it prevails in England or for the matter of that inany foreign country. We are certainly prepared to receive light from whatever source itcomes but we have to build our own jurisprudence. whatever source it comes but wehave to build our own jurisprudence. " Hence we are fully justified in applying law of torts inbanking and industrial finance.More recently concerning law of torts, the Supreme Court Judge, S
AHAI
J. observed: " Trulyspeaking entire law of torts is founded and structured on morality that no one has a right to injureor harm other intentionally or even innocently. Therefore it would be premitive to classstrictly or close finally the ever-expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approachto tortuous liability by courts is more conductive."
//- - --
The word '
tort
'
is derived from the Latin term
tortem
to twist and impliesconduct which is twisted or tortious. It now means a breach of some duty independentof contract giving rise to a civil cause of action and for which compensation isrecoverable. - - - workable definition in general terms, a tort may be defined as a civil
wrong independent of contract for which the appropriate remedy is an action for unliquidated damages.
A tort is a species of civil injury or wrong. - - - no civil injury is to be classed as a tort unlessthe appropriate remedy for it is an action for damages. It is usual to say that a person is liablein tort irrespective of whether or not a judgment for damages has been given against him. Heis liable from the moment he commits the tort.The Law of Torts governs actions for damages for injuries to certain kinds of rights, like the rightsto personal security, property and reputation. ‘ tort ‘ derived from a French word meaning in itsetymological sense, a “ twisting out “ and in a popular sense, a crooked act, a transgression fromstraight or right conduct, a wrong. In this generic sense it (i.e. torts) was introduced into theterminology of English law by the French-speaking lawyers and judges of the courts of theNorman and Angevin Kings of England. Most of the technical terms of English Law are French inorigin, - - - usual to speak – ‘ Actions in Contract ‘ and ‘ Actions in Tort ‘ Dr. Winfield has made acritical examination of many possible or current definitions of law of torts and the one suggestedby him is as follows; “ Tortious liability arises from the breach of a duty primarily fixed by the law;such duty is towards persons generally and its breach is redressible by an action for unliquidateddamages. The early common law was primarily concerned with remedies and not with rights andduties. The damages which a plaintiff has a right to recover in an action for a tort belong to thecategory known as ‘ unliquidated damages ‘ This phrase is in law of torts applies to cases wherea plaintiff claims not a predetermined and inelastic sum but such an amount as the court in itsdiscretion is at liberty to award, though in his pleading, he may specify a particular amount. Thephrase ‘ liquidated damages ‘ refers to a sum which has been predetermined by contract or statute.- -- Damages are usually intended to be a pecuniary compensation for the injury; they arethen called substantial damages. They may be awarded with a view to punish the defendant ;they are then called exemplary, punitive or vindictive damages.Tort, as we have seen, aims principally at the prevention or compensation of harm whereasthe “ core “ of contract is the idea of forcing certain promises. - - - mere failure to act will notbe actionable in tort. - - - legally binding - - - damages can not be claimed in tort for a “ loss of expectation “ as opposed to “ out of pocket “ losses, or, as it is sometimes expressed,damages in contract put the plaintiff in the position he would have been in had the contractbeen performed, whereas damages in tort put him in the position he would have been in hadthe tort not been committed. - - - plaintiff having the benefit of whichever is more favourableto him on the particular facts. - - primary duty – for breach of which tortious liability isimposed. The breach of such a duty gives rise to a remedial duty, i.e. a duty to make redress,and this is always owed to a specific person or persons whatever the source of the liability.
2.
The person committing a tort or wrong is called a tort-feasor or wrong doer, and hismisdoing is a tortious act. The principal aim of the law of torts is compensation of victims or their dependants. Grant of exemplary damages in certain cases will show thatdeterrent of wrong-doers is also another aim of the law of torts. // distinction between a Contractand a Tort --- A contract is founded upon consent : a tort is inflicted against or withoutconsent, A contract necessitates privity between the parties to it : in tort no privity is needed. Atort is a violation of a right in rem i.e. of a right vested in some determinate person, either personally or as a member of the community, and available against the world at large; whereas abreach of contract is an infringement of a right in personam, i.e. of a right available only againstsome determinate person or body, and in which the community at large has no concern. Thedistinction between the two i.e. law of torts and law of contracts lies in the nature of the duty thatis violated. In the case of a tort the duty is one imposed by the law and is owed to the communityat large. In the case of contract, the duty is fixed by the will and consent of the parties, and it isowed to a definite person or persons.- - - Secondly, in a breach of contract, the motive for thebreach is immaterial; in a tort, it is often taken into consideration. Thirdly, in a breach of contract,damages are only a compensation. In an action for tort to the property, they are generally the
same. But where the injury is to the person, character, or feelings, and the facts disclose improper motive or conduct such as fraud, malice, violence, cruelty, or the like which aggravate theplaintiff’s injury. He may be awarded aggravated damages in the law of torts. Exemplary damagesto punish the defendant and to deter him in future can also be awarded in certain cases in tort butrarely in contract. Another distinction is that the law of torts is aimed at allocation or prevention of losses whereas the law of contract aims to see that promises made under a contract areperformed. Same act may amount to a tort and a breach of contract. e.g. father employing asurgeon to treat his injury. There may be concurrent contractual and tortious duties owed to thesame plaintiff who has a choice of proceeding either in tort or contract except when he must relyon a specific term of the contract as distinct from any duty of reasonable care implicit in theparticular relationship brought about by the contract in which case he has to depend exclusivelyon his contractual claim. Lord Bridge in the context of an auditor observed: In advising the clientwho employs him the professional man owes a duty to exercise that standard of skill and careappropriate to his professional status and will be liable both in contract and in tort for all losseswhich his client may suffer by reason of any breach of that duty.The law of torts is fashioned as “ an instrument for making people adhere to standards of reasonable behaviour and respect the rights and interests of one another. – violation of protectedinterests of a person – remedy by giving him compensation – By “ interest “ here is meant “ aclaim, want or desire of a human being or group of human beings which the human being or group of human beings seek to satisfy, and of which therefore , the ordering of human relations incivilized society must take account. “ – A protected interest gives rise to a legal right which in turngives rise to a corresponding legal duty. Some legal rights are absolute in the sense that mereviolation of them leads to the presumption of damage. – An act which infringes a legal right is awrongful act. – To constitute a tort or civil injury (1) there must be a wrongful act committed by aperson (2) the wrongful act must give rise to legal damage or actual damage and (3) the wrongfulact must be of such a nature as to give rise to a legal remedy in the form of an action for damages. – The crucial test of legally wrongful act or omission is its prejudicial effect on the legalright of another.- ‘legal right ‘ defined by A
USTIN
as a ‘ faculty ‘ which resides in a determinate partyor parties by virtue of a given law, and which avails against a party (or parties or answer to a dutylying on a party or parties) other than the party or parties in whom it resides. Rights availableagainst the world at large are numerous. – sub-divided into private rights and public rights.
Private rights
include all rights which belong to a particular person to the exclusion of theworld at large. These rights are " (1 ) rights of reputation; (2) rights of bodily safety and freedom;(3) rights of property - - - these three rights will be found to embrace all the personal rightsthat are known to the law " .// To every right there corresponds an obligation or duty. If the rightis legal, so is the obligation. - - - A right in its main aspect consists in doing something,or receiving and accepting something. So an obligation consists in performing some act or inrefraining from performing an act. - - - The duty with which the law of tort is concerned is the dutyto abstain from wilful injury, to respect the property of others, and to use due diligence to avoidcausing harm to others. // Liability for a tort, therefore, arises when the wrongful act complainedof amounts either to an infringement of a legal private right or a breach or violation of a legalduty. – ‘
Damage
‘ means the harm or loss suffered or presumed to be suffered by a person as aresult of some wrongful act of another. The sum of money awarded by the court is called “
damages
” // From the point of view of presumption of damage, rights are classified into (1)absolute and (2) qualified. When an absolute right is violated the law conclusively presumesdamage although the person wronged may have suffered no pecuniary loss whatsoever. Thedamage so presumed is called legal damage. In case of qualified right, the injury or wrong is notcomplete unless the violation of the right results in actual or special damage. – The realsignificance of legal damage is illustrated by two maxim namely
injuria sine damno
and
damnumsine
(or
absque
)
injuria.
–
damnum
is meant damage in the substantial sense of money, loss of comfort, service, health or the like. –
injuria
is meant a tortious act; - Any unauthorisedinterference , however, trivial, with some absolute right conferred by law on Qualified person, isan injury. –
injuria sine damno,
i.e. the infringement of an absolute private right without any actualloss or damage, the person whose right is infringed has a cause of action. Every person has anabsolute right to his property, to the immunity of his person, and to his liberty, and an infringement
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