LAW of Torts - Internal test Assignment

LAW of Torts Internal test Assignment

Q1.
Q. 1 Distinguish tort from crime and contract?
Answer:
Tort:
Tort is “any wrongful act that leads to legal liability”.
A tort is considered civil wrongdoing that is expected to or believed to have caused the
claimant harm or loss. In the end, the act results in legal liabilities levelled against the
wrongdoer.
Tort is doing something wrong hampering individual parties. In legal terms, a tort happens
when negligence directly damages a person or his/her property. There are different types of
torts, but all of them result in injury to a private person or property.
Negligence is the most common reason for tort. When a person unintentionally harms
someone then the injured party can sue the defendant for his act. A strict liability tort
becomes an issue if a private party is injured through a faulty product.

A tort is unlawful because –

Firstly, a tort causes bodily harm to an individual and impairs a person’s life.
Secondly, a tort is against the civil rights of an individual in society.
Lastly, torts are covered by law and the offense is subject to prosecution.

What is Crime:
crime is nothing but doing something wrong. Specifically, in this case, the impact is on
society in general. There are special cases or acts which are a crime under the state legal
system. In case, a person does any of the act, the law will take necessary decisions of
punishment in the court.
Specifically, the proceeding takes place in the criminal court of law. Crimes which go against
laws are already set for the protection of society.

Crime is an illegal act for the following reasons:

Firstly, crime goes against existing laws set-up in society.
Secondly, crime affects the standard of living of law-abiding citizens who wish to live
peacefully in society.
Lastly, a crime is an intentional act contravening human fundamental rights.

Meaning of Contract:
A contract means a promise or set of promises that the law can or will enforce if any
eventuality arises while tort means a collection of legal remedies that entitle an affected
party to recover from losses, injuries, or damages.

Contract looks into following topics

Rights , Duties, Minors, Privity, Motive, Damages, Limitation Period

Difference between Tort and Crime

No Crime Tort
1 A Crime is wrongdoing which hampers the social A Tort is wrongdoing which
order of the society we live in. hampers the individual or
his property.
2 Crime happens mostly intentionally. It is a Tort is hardly intentional.
deliberate act which people do to get some But it is still damaging to the
unlawful benefits. It happens mostly due to individual.
negligence.
3 Crime impacts the well-being of society in general. Tort impacts the well-being
The legal bodies try to give proportional of the individual. The
punishment to law offenders in order to maintain aggrieved party seeks
peace in society. compensation for the
damages.
4 Crimes are presented in the Criminal Court. Torts are presented in the
Civil Court.

5 Compensation for crimes is already mentioned in Compensation for torts is

the book of law. Whenever the court has to decide given on the basis of the
the amount of compensation, they simply refer to damages to the aggrieved
the law book. In certain cases, judges use their party.
personal judgments too.
 Difference between Tort and Contract
No Tort Contract
1 In tort, no privity exists or is needed as harm is In contract, there must
always inflicted against the will of the party injured. always exist privity of
contract between parties
i.e. the parties must be
legally bounded each to
other.
2 In case of torts, minor can be sued and damages are In contract, minority is a
paid out of his property. good defense as a minors
contract is void-ab-inition
and no rule of estoppel
applies. (rule of estoppel /
another to believe a certain
state of things exists which
in fact is not true, then in
such a case he is not
afterwards allowed to deny
it).
3 A tort is inflicted without or against the consent of In a contract, obligation is
the party i.e. the obligation arises without any founded on the consent of
consent. the parties i.e. consent is
the essence of a contract.
4 In torts, mistake is no no defense, even if it is In contract, a contract
innocent. If A enters B’s House by mistake, action entered into by mistake is
lies in tort for trespass. void. But mistake of law
one’s own country is no
defense as everybody is
supposed to know the law
of ones own country.
5 In torts, tort is a violation of infringement of a right In case of contract it is
in Rem . i.e. rights available against the world at violation of a right in
large. personam i.e. a right
available and enforceable
against a particular persons.
6 In case of a tort the duty is fixed or imposed by law In case of contract the duty
and is owed to the community at large. is fixed by the will and
consent of the parties and it
is owed to a definite person
or persons.
 7 In torts, motive is often taken into consideration. In contract, the ,motive for
the breach is immaterial.
8 In torts, damages awarded may be real, exemplary In contract real and
unliquidated or contemptuous liquidated damagews are
awarded. Exemplary
damages are rarely
awarded.
9 The period of limitation in case of torts usually runs In contract , the period of
from the date when the damage is suffered. limitation rems from the
date of the breach

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Q2.
Q. 2 Define essential elements to constitute tort?

Answer:
Tort:
Tort is doing something wrong hampering individual parties. In legal terms, a tort happens
when negligence directly damages a person or his/her property. There are different types of
torts, but all of them result in injury to a private person or property.

“all injuries done to another person are torts unless there is some justification recognised by
law”. A tort has come to mean an act which is wrong. Law of Torts allows the plaintiff to
claim unliquidated damages for a legal civil wrong. However, tort law does not allow the
plaintiff to claim damages for any and every wrong. Thus, it is important to understand what
ingredients constitute a tortious liability, so to allow an affected party to claim damages.

following two conditions should be satisfied to constitute a tort:

A “wrongful act”
Such wrongful act should result in “legal damage”
As per the Law of Torts, in order to make a person liable for a tort, he must have done some
act which he was not expected to do or he must have omitted to do something which he
was supposed to do. This implies that the person must have engaged in doing either a
positive wrongful act or made an omission which he shouldn’t have, which would have
made him liable.
To understand if an act is legally wrongful or not, we must look if the wrongful act
detrimentally affects the legal right of the other person. To put it simply, an act will be a
wrongful act as per tort law if the act causes some harm to the legal right of the other
person. [1] Thus, it is essential that the legal rig

Essential Elements Of A Tort:

Three essential elements need to be fulfilled to constitute a Tort, they are:

Existence of a Duty of Care

Every individual is bound to follow certain duty imposed upon it by the law of the land to
practice certain tutelage and adequate rationale over his acts which might turn out to be
harmful to any other individual.
Such duty of care needs to be proved in the court to induct the charges of Tort.

Commission or Omission of an Act:

To charge a person for Tort, it must be proved that s/he has either committed an act which
is contrary and disobliging to the provisions of the law of the land or has failed to do an act
which was his/her duty as per the law of the land to do.

Illustration A: ‘X’ publishes a defamatory statement against ‘Y’. The same would lead to the
Tortious wrong of Defamation on X’s part as the law forbids the publication of defamatory
statements against a person.

Illustration B: ‘X’ fails to set up proper fencing surrounding his garden which has poisonous
trees to warn people to stay away from it. A child dies as a consequence of eating fruit from
one of the poisonous trees from X’s garden.
Here, ‘X’ failed to perform his reasonable duty of care towards the people which amounts to
omission. It’ll lead to a Tort.

Legal Injury:
To prove that the wrongful act or omission of the defendant is a Tort, the plaintiff must
show that such act or omission caused an injury to him. An injury here means violation of a
legal right vested in the plaintiff and recognized by the law of the land. The legal maxims
‘Injuria sine Damno’ and ‘Damnum sine Injuria’ encapsulate the damage and injury part.

The first maxim, Injuria sine Damno means Injury or infringement of a legal right without
any actual Damage i.e. substantial loss suffered by the plaintiff. Mere violation of a legal
right or proof of a legal injury is enough to constitute a Tort. The reader can deduce the
maxim further from the case of Ashby v. White.[6]

The second maxim, Damnum sine Injuria means damage to the plaintiff in absence of a legal
injury or violation of any legal right. A case for Tort cannot be made up in absence of a legal
injury. The Gloucester Grammar School case[7] can be referred to understand the maxim to
its bottom.
Legal Remedy:
As the last condition to constitute a Tort, the unlawful act or omission of the defendant
must fall under a category of unlawful acts which have a civil action for damages as their
remedy. The law of torts bases itself on the maxim, ‘Ubi jus ibi remedium’ which means
‘where there’s a right, there’s a remedy. The remedy required to constitute a Tort can be
action for damages, injunctions, restitution actions, or equitable remedies (specific
performance).
The court applies certain tests such as the test of foreseeability, the test of directness, etc.
before determining the remedies to be awarded in a case. The nature of the damages is
unliquidated.
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Q3.
Q. 3 What are liquidated and unliquidated damages?
Answer:
damages are a remedy in the form of a monetary award to be paid to claimant as
compensation for loss or injury. The damage must involve damages to property, or mental
or physical injury etc. A court usually gives the amount that will help to restore the injured
party to the economic position they expected from the performance of the promise or
promises on a breach of contract by a defendant. Liquidated damages are meant as a fair
representation of losses in a situation where actual damages are difficult to ascertain.
Unliquidated damages are a type of compensation that is considered at large which means
that the amount is not stated when a contract is established, instead these damages are
determined by a judge or jury in a court.

Types of Damages
General and Special Damages –
Any damage that emerges in the natural course of events is known as general damages
while damages that emerge under any circumstance and were already expected is called
special damages.

Nominal Damages
These are damages that are awarded to the plaintiff in cases where the court decides that
the plaintiff suffered a legal wrong but no real financial loss as such.

Punitive damages
These damages are not fixed by law, the judge and jury may award at its discretion
whatever sum is believed necessary to redress the wrong, also a Jude can remit these
damages if they consider it to be excessive.

Liquidated and Unliquidated damages

In the case of contracts, parties might agree to pay a certain amount on breach of the
contract. When such provisions are present in the contract they are known as liquidated
damages while damages that are given by the courts on basis of assessments of the loss or
injury caused to the party suffering such breach of contract, they are called unliquidated
damages.
Breach of Contract
Before understanding what breach of contract is all about. So, when one party infringes any
of the provisions of a contract in a manner due to which the other party has to face losses
then it is considered to be a breach of contract however before a breach of contract can be
noticed there are few conditions have to be fulfilled such as –

> The contract should be valid which means there should be offer, acceptance, capacity to
contract etc.

>A plaintiff who claims damage has to prove to the court that the defendant has breached
the contract.

>The plaintiff should have fulfilled his part of the contract

Liquidated Damages
As per black law, before entering into any contract the parties decide an amount of money
which has to be paid by the one who performs breach of contract this is termed as
liquidated damage.

In India liquidated damages is covered under section 73and 74 of the Indian Contract Act.

Section 73 – This section deals with compensation for loss or damage that is caused by
breach of contract. When any contract is broken the party, who is responsible for it has to
pay certain compensation to the other party. Such kind of compensation is however not to
be given for any remote and indirect loss or damage sustained by reason of breach.

Example – Suppose B get into a contract for selling and delivering 10 kg of rice to C however
soon he breaks his promise, due to which now C is entitled to compensation from B for the
loss he faced.

Section 74 – According to this section if a contract is broken and a sum is mentioned in the
contract for any breach that might be caused later then the party is entitled to it whether or
not actual damages are proved.
Example – Suppose A borrows Rs 500 from B and gives him a bond for rupees 600 which will
be payable through instalments now if he fails to do it, he has to pay the whole money
(rupees 500)that is due to B.

Prerequisites to Claim Liquidated Damages

Breach of contract – It is necessary for claiming of damages, so until and unless there is any
breach of contract no compensation can be awarded to any of the parties also damages can
be claimed in the case of anticipatory breach of contract.

Causal link – There must be a link between the breach that is committed and the loss
suffered for a claim of damage, however if this is absent then compensation cannot be
awarded.

Proof of damage – There should be a proof of damage or loss or injury present otherwise
the compensation cannot be awarded for claiming of liquidated damages.

Unliquidated Damages
Damages that are claimed for unforeseeable loss are known as unliquidated damages,
however determining the exact amount for compensation is a bit difficult in this case since
the amount is unliquidated. For awarding these damages the court takes a compensatory
approach such as it tries to restore the loss sustained by the plaintiff, help the plaintiff in
getting back to its previous position, avoid penalization of the defendant in any manner.

The main motive behind these damages is that it helps pries suffering from a breach of
contract to demand for damages for unforeseen losses, however certain requirements are
to be fulfilled without which compensation cannot be provided. It is extremely necessary
for including a provision for unliquidated damages in a contract as it helps the parties to
recover those losses which are not possible to estimate , also the problem with this type of
unliquidated damage is that the party claiming it has to prove that the loss is due to the
breach of contract .

However, if a party was aware that there might be certain unforeseen events which may
cause problem in performance of the contract and still did not take any step for stopping it
then damages cannot be awarded.
Case laws
Fateh Chand v. Bal Kishan Das

In this case provision was eliminated under English law which was in relation of the
difference between payment of liquidated damages and stipulation penalty. The Supreme
Court has held that the effected party was entitled to a certain compensation which should
not exceed a particular sum of penalty or re discussed amount which had to be paid after
breach of contract. The court also mentioned that the usage of all these provisions was not
particularly confined to some cases in which the effected party comes to the court for
seeking relief.

In the following case section 74 was interpreted on the basis of either predetermined
agreement compensation or penalty.

ONGC vs Saw Pipes Limited

In this particular Supreme Court had held that in case of any sort of damage with respect to
section 73 and 74 and has to be read together and the damages which are liquidated I
nature has to be granted in those cases whereby it is very much difficult to prove the exact
loss or damage which has been incurred as per the fact that it should be a type of
reasonable compensation but in cases of deciding compensation the terms and conditions
should be taken into proper consideration .

J.B. Ross and Co. vs C.R. Scriven and Ors.

In this case, the court had given the judgement in favor of the plaintiffs with reference to
the right of unliquidated damages that arose upon a certain breach of contract between the
plaintiffs and the defendant. The damages which were claimed by the plaintiffs were
actually based on a rule that was ordinary in nature i.e. the difference between ordinary
price and the market price during the time of contract made. The problem which arose over
here was that the defendants did not make timely appearance with respect to the provision
that was clearly mentioned in the contract and duly signed by them.

Conclusion
In order to conclude, I would like to say that there are certain advantages of both these
damages. In a provision for unliquidated damages, the contract made will mostly prove to
be a bigger advantage. The particular contract will help in recovering the losses by the client
which were earlier a breach in the contract, unforeseen or even really very tough to
estimate about it. The fact over here is that it originally results in contractor to have a
liability that is fully unknown. Adding to this, the client has the obligation so as to remove
his or her actual loss during the breach.

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Q4.
Q. 4 Explain ‘Damnum Sin Injuria’ with relevant case laws?
Answer:
meaning of 'Damnum sine injuria' :
Meaning -
Damnum means = Damage in the sense of money, Loss of comfort , service , health etc.
Sine means = Without
Injuria means = Infringement of a legal right / injury to legal right.
Damnun sine injuria means damages , monetary loss, to the plaintiff without violation
of legal right, not actionable because no injury to legal right.
Damnum sine injuria means damage without infringement of any legal right. damage
without injury is not actionable. Mere loss of money's worth does not of itself constitute
legal damage. There are many acts which though harmful are not wrongful in the eyes of
law, therefore do not give rise to a right of action in favour of the person who sustains the
harm. No one is to be considered a wrong doer who merely avails himself of his legal rights,
though his action may result in damage to another.

Damnum Sine Injuria

Latin maxim Damnum sine injuria signifies the meaning of the maxim term by term as the
term Damnum is damage, sine is for without, and injuria is any injury of the personal lawful
privileges. Damnum sine injuria means any damage which is caused apart from the harm as
well as prejudice. This Latin maxim states that any damage caused without infringing the
personal lawful privileges and there may be any action may not be considered as a mistake
by law.

Damages that are not prosecutable?

Any damage which is caused relating to the equitable rivalry resulting in the benefit for the
civilization.

When any damage is caused by the honest faith for abbreviating the immense amount of
the damage.
Any damage which arose due to the statement intending to derogate by the honour through
the direction.

Illustration
*Any action conducted by A which leads to damage B without infringing the B’s personal
legal privileges, therefore no action will be prosecutable.

Here are some cases let's see:

1) Mayor of Bradford v/s Pickles 1895

Facts -

Corporation of Bradford was supplying water from its well. Defendant was having
adjacent land to the corporation land wherein there was well.
Defendant was willing to sell his land. He approached the mayor of corporation.
Negotiations failed. Defendant dug well in his own land .thereby cutting the underground
supply of water of corporation well this has caused a loss to corporation because there was
no adequate supply of water to the people of corporation. Plaintiff sued Deft for damages
for malice.

Held -
Deft.is not liable, because defendant's act is not wrongful as not violated legal right or
plaintiff. There is factual malice, ill will digging well in his own land does not amount to tort.

2) Gloucester Grammar school case, 1410 (setting up rival school)

Fact -
Defendant was school teacher in plaintiff's school. Because of some dispute Deft left
plaintiff's school and started his own school. As defendant was very famous amongst
students or his teaching,boys from plaintiffs school left and joined to Deft.School . Plaintiff
sued Deft.for monetary loss caused.
Held -
Deft not liable. Compensation is no ground of action even though monetary loss in
caused if no legal right is violated of anybody.

3) Chasemore v/s Richards 1859

Fact -
Plaintiff was running a mill on his own land, and for this purpose he was using the water
of the stream for a long time. The Deft dug well in his own land and thereby cut off the
underground water supply of stream. Through percolation the water gathered in the well of
deft. The quantity of water of stream was reduced and the mill was closed for non
availability of water. Plaintiff sued deft for damage.

Held -
Deft. Not liable, because of principle of Damnum sine injuria. No violation of legal right,
though actual loss in money.
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