TORT LAW – Tort Meaning, Essential Elements, Liability and Remedies in Tort
(LEGAL APTITUDE AND LOGICAL REASONING – CSEET – Paper 2)
The Law of Tort is an interesting topic to deal with. Though not a complex law it demands certain understanding for demarcation between law of torts and other wrongs. Now being part of CS Executive Entrance Test (CSEET) comprising of Objective Type/ Multiple Choice questions, let us look at law of torts with similar view point where we learn torts in a more granulated form.
Tort – means a civil wrong.
The word tort is French equivalent of English word wrong. The word “Tort” is derived from a latin word “Tortum” which means twisted.
In general Tort meaning is a civil wrong that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the wrongful act.
Parties – There are 2 parties in a Tort
a. Plaintiff- is a person who sustains injury or suffers loss as the result of wrongful act. The aggrieved / injured party.
b. Tort Feasor– is a person who is responsible for the injury sustained by the plaintiff and incurs liability for the damage caused by the wrongful act. Commonly known as the defendant.
What is a Tort?
A tort is basically as act or omission by the tort feasor that causes loss, harm or damage to the plaintiff
What is Tort Law?
Law of Torts is hold of responsibility and remedies that is tried by the Courts in civil proceedings to provide relief for persons who have suffered harm (i.e. the aggrieved person) from the wrongful acts of others (i.e. the tort feasor).
Essential Elements of Tort
A wrongful act shall be construed as a tort only if the following 3 essential elements of Tort prevail-
a. Wrongful act or inaction – The act must be a wrongful one causing damage
b. Legal Damage – Damage must be legally recognized
c. Legal remedy – There should be a legal remedy as against wrongful act
Thus, all civil wrong cannot be said as tort.
a. Damnum Sine Injuria – Damage without injury. This is where the Damage is without the intent of Injury. Wherein the act is not a wrongful one, it shall be exercise of legal right of one that causes damage to the other indirectly.
Example: If A owns a stationery shop next to a school and enjoys monopoly. Meanwhile B opens a stationery shop opposite to A’s shop. B only exercises his legal right of carrying on a business but this is going to cause damage to the monopoly status and profits of A. Thus there exists Damage without Injury.
b. Injuria Sine Damnum – Injury without damage. This is where there persists an injury without damage. Whereas even if the damage is not established the act shall be treated to cause injury.
Example: If X owns copyrights of a book. Y is a publisher without being aware of the copyright tries to publish additional copies of the book. Thus even if the damage is not quantified the act of Y becomes an injury even without damage.
c. Mens Rea – Criminal intent. It means the aspect of guilt to commit the crime. Mensrea is the mental element of a person’s intention to commit a crime. The act or inaction must be done with the wrongful intention or negligence.
Example: K and S are relatives. K borrows vehicle of S. Unfortunately meets with accident causing damage to the vehicle. K has caused the damage may be due to his negligence and liable to pay for the damages. He didn’t cause the damage willfully.
Whereas, S borrow K’s vehicles the next week and voluntarily causes damage to it just to satisfy his criminal intent to take a delightful revenge with K. Though K did not do it on purpose, S here had an criminal intent to cause damage. This is mensrea.
There are 2 types of Tort Liability, viz.,
- Absolute or Strict Liability
- Vicarious Liability
Absolute or Strict Liability
Absolute or Strict Liability is where, a person could be guilty even if there was no intention to commit a crime. In simple words, the defendant is held liable without fault.
Example: D is a sensible driver who abides to the traffic rules and speed limits. While driving in a highway, G a pedestrian ran in front of the road to cross the road. Eventually D couldn’t control the vehicle and ended up hitting G. Though D was not in fault he will termed as wrong doer.
Categories under Absolute/Strict Liability are-
a. Liability of Inevitable Accident – Say if Dr. P, a scientist was carrying some research chemicals during his travel in public transport which eventually broke and caused smoke and suffocation to the passengers
b. Liability of Inevitable Mistake – Say if E a pedestrian, has to trespass the Defense Quarters without knowing the entry is restricted just to catch his certificates that flew in air due to rough weather.
c. Vicarious Liability for Wrongs committed by others – Here is where the responsibility is attributed to other on the grounds of social policy. The Master being held liable for the acts of his servant.
Exceptions to Absolute/Strict Liability:
- Damage due to natural use of land
- Consent of the plaintiff
- Act of third party
- Statutory Authority
- Act of God
- Escape due to plaintiff’s own Default
- Vicarious liability is one is held responsible for act of another. For instance, a master is vicariously liable for the tort of his servant, principal for tort of his agent, etc. Few examples are-
- Principal & Agent (Specific Authority) – It is construed that the one who acts through another is acting himself. Therefore, when an agent commits a tort in the ordinary course of his duties as an agent, the principal is liable for the same.
- Master and Servant (Authority by Relation) – A master is liable for the tort committed by his servant while acting in the course of his employment. Here both the Servant and Master are jointly and severally liable.
Employer and Independent Contractor
- Employer is liable for the act of Independent Contractor only if himself (employer) is deemed to have committed a tort, which may be any of the following-
a.When employer authorizes the contractor to commit a tort
b.In torts of strict liability
c.Negligence of contractor
- Employer is liable for the act of Independent Contractor if he has taken care in the appointment of contractor.
- Liability for the acts of Servants – An employer is liable when his servant commits a tort in the course of this employment. Therefore the act is deemed to be done in the course of employment if it is either-
a.Wrongful act is authorized by the employer or
b.Wrongful and unauthorized mode of doing some act is authorized by the employer.
Vicarious Liability of the State
In England –Post to passing of the Crown Proceedings Act, 1947, the Crown is vicariously liable for the torts committed by its servants just like private individual.
In India – Unlike England there is no statutory provision in India establishing the liability of the state. However, Article 300 of the Constitution enables that Government of India may sue or be sued by the name of the Union of India and State Government by the name of the State. The point to be noted is that during the establishment of tort by the Court, it looks whether it was a sovereign function or non-sovereign function. If sovereign function, the Government from claim immunity from the tortuous liability.
Torts or Wrongs to personal safety and freedom
An action for damage lies for the below wrongs construed as injuries to an individual. They are-
- Battery: For a tort of battery 2 elements are must, namely use of force (irrespective of how trivial it may be) without the plaintiff’s consent and without any lawful justification
- Assault: this tort is where the tort feasor creates an anxiety in the mind of the plaintiff that his is going to commit a battery against him.
- Bodily Harm: A willful act of tort feasor to cause physical harm or calculate to cause physical harm to the plaintiff
- False Imprisonment: this tort refers to restrain or detain or impose by confining his/ her movement against his/her will without a lawful justification
- Malicious prosecution: this refers to institution of judicial proceedings maliciously, without reasonable cause with intent to cause harm to plaintiff’s reputation, personal freedom or property.
- Defamation: This refers to the attack of reputation of a person with an intent to lower the social status of the plaintiff in the society. It could be in either more libel (permanent) or slander (temporary).
Remedies in Tort
- Judicial Remedies
The Plaintiff is envisaged with three types of judicial remedies, namely-
c. Specific restitution of property
- Extra Judicial Remedies
Apparently, without recourse from the Court it is lawful to redress one’s injuries by means of self-help. Some of these remedies are:
a. Self Defence – It is lawful to protect oneself against any unlawful act
b. Prevention of Trespass – Prevention to entering the land by the occupier
c. Re-entry on land – Retake of possession of land wrongfully disposed
d. Re-caption of goods – Retake possession of goods which was wrongly taken or detained
e. Abatement of nuisance – lawfully abate any nuisance injuriously affecting
f. Distress Damage Feasant – lawful seizure of cattle which are unlawfully on plaintiff’s land causing damage and detain them until compensation is recovered for the damage.
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