Tort

● Introduction:

Tort law is the body of rules concerned with remedying

harms caused by a person’s wrongful or injurious actions. It attempts to adjust for
harms done by awarding damages to a successful plaintiff who demonstrates that
the defendant was the cause of the plaintiff’s losses.

For instance, if a surgeon tasked with amputating a patient’s left leg commits
medical malpractice by instead amputating her right leg, that patient may be able to
pursue a tort lawsuit for monetary damages against the surgeon.

● Derivation of the term “Tort”:

The term “Tort” is
derived from the Latin word “tortum”, meaning “something twisted, wrung, or
crooked.” The concept encompasses only those civil wrongs independent of
contracts.

➢ CROSS-REFERENCE: CPC 1908 u/s9 provides the filing of a suit.

● Meaning of the term “Tort”:

➔ Literal Meaning:
According to the “Oxford dictionary of law”:

“A wrongful act or omission for which damages can be obtained in a civil court by
the person wronged, other than a wrong that is only a breach of contract.”

➔ Legal Meaning:
According to the “Black’s Law Dictionary”:
“Civil wrong, other than a breach of contract, for which a remedy may be obtained,
usually in the form of damages; a breach of a duty that the law imposes on persons
who stand in a particular relation to one another.”

● Definitions:
➔ According to Salmond:

“Tort is a civil wrong, independent of contract, for which the remedy in common
law is an action for damages.”

➔ According to Ratanlal:

“Tort is an act or omission which prejudicially affects a person in some legal

private right.”

➔ According to Winfield and Jolowicz:

“Tortuous liability arises from the breach of a duty primarily fixed by law: this
duty is towards persons generally and its breach is redressable by an action of
unliquidated damages.”

● Essentials of a Tort:
Followings are the essentials of a tort.
1. There must be a civil wrong.
2. There must be Infringement of right in rem.
3. Right fixed by law.
4. Remedy.

➔ Civil Wrong:
A tort is a civil wrong as opposed to a crime on one hand
and a breach of contract or a breach of trust on the other. A breach of contract and
a breach of trust are civil wrongs but they are not torts inasmuch as the remedies
afforded for such breaches are governed by statutes whereas the remedies given for
a tort owe their origin to the Common Law.

➔ Infringement of Right in rem:

A tort is an infringement of a right in rem
and not of a right in personam. A right in rem is a right vested in some determinate
person (either personally or as a member of the community) and available against
the words at large. Thus one’s rights not to be defamed or assaulted etc., are rights
available against the whole world. Such rights are rights in rem.

The very opposite of a right in rem is a right in personam. A right in personam is

a right available only against some determinate person or body and in which the
community at large has no concern.

➔ Right Fixed by Law:

The right which is infringed must be a right that is
fixed by the law independently of the consent of the parties. The right which is
fixed by law is called legal right and can be defined as:
“Legal right is an interest which is recognized and
enforced by the law”
➔ Remedy:
There must be a remedy for the infringement of the right and a
civil wrong in the form of compensation. Compensation can be in two i.e.
Damages and compensation.

● Ingredients of a Tort:
To constitute a tort and to establish
liability in tort-:
➢ There must be a wrongful act or omission committed by a person.
➢ The wrongful act or omission must result in legal remedy in the form of an
action for damages.
➢ The wrongful act must be of such a nature to give rise to a legal remedy in
the form of an action for damages.
 ➔ Wrongful Act or Omission:
To determine liabilities in tort it must be
proved that the act or omission done by the one person was a wrongful act. The act
or omission must be legally wrongful. Violation of moral, social, and religious
rights does not come under the category of torts.

➔ Legal Damages:
Another essential element is wrongful act or omission
committed by one person must result in legal damages to the other i.e. Such act or
omission resulted in a violation of legal remedy to another person. The following
are the essential ingredients of the legal damages:

➢ There must be an infringement (violation) of a legal right (absolute or

qualified).
➢ Such infringement of a legal right must have a presumption of damage in the
eye of law.
➢ Proof of actual damages suffered in case the right contravened is not an
absolute but only a qualified right.

The real signification of legal damage can be

Best illustrated by the following two maxims:-

1. Injuria sine damnum:

It denotes harm with no damages Which means that
there has been a violation of legal rights but no damage has been done to the
plaintiff. It basically indicates that the plaintiff suffers no loss or damage; only his
legal rights are violated.

CASE REFERENCE
Bhim Singh vs. Jammu & Kashmir State
Bhim Singh (plaintiff) was a J&K Assembly MLA. While being on his way to
Assembly, the plaintiff was wrongfully detained by police by police. He was also
not taken to the Magistrate. This act did not cause him physical or financial harm,
but it probably violated his legal & fundamental rights. The State was found liable
and ordered to pay compensation for damages.

2. Damnum sine injuria:

It denotes damages without causing harm. In short, the plaintiff has suffered losses.
They may be physical or pecuniary in nature, but no legal rights are violated.

CASE REFERENCE
Gloucester Grammar School
In this case, the defendant established a school in the same neighborhood as the
plaintiff’s school. The defendant even lowered the school’s fees. This was not a
tort case because the plaintiff suffered the only loss of money and none of his legal
rights was breached.

➢ The difference between Injuria sine damnum and Damnum sine injuria

1. On the one hand, there is no physical harm or actual harm on the side of the
plaintiff in the situation of Injuria sine damnum but there is actual harm and
damage on the side of the plaintiff in the case of Damnum sine injuria.
2. Second, in the instance of Injuria sine damnum, the party probably suffers a
violation of their legal rights, whereas there is no such violation in the
instance of Damnum sine injuria.
3. Finally, Injuria sine damnum is legally actionable in courts, whereas
Damnum sine injuria is not.
4. Injuria sine damnum deals with legal wrongdoings, whereas Damnum sine
injuria deals with ethical wrongdoings.
➔ Legal Remedy:
To be successful in an action for torts the last essential is
that the wrongful act or omission must come under the category of wrongs for
which the remedy is a civil action for damages.
A tort is a civil injury, but all civil injuries are torts. The wrongful act must come
under the category of wrongs for which the remedy is a civil action for damages.
Though the specific remedy for a tort is an action for damages.

But there are other remedies also i.e. An injunction may be obtained in addition to
damages in certain cases of wrongs. To similarly, specific restitution of a chattel
may be claimed in an action for the detention of a chattel.