LAW OF Torts PDF

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a) Define the term “tort” and distinguish it with Crime and Contract b) Define ‘tort’ and explain the reasons for slow development of “Law of Torts” in India?INTRODUCTION:The word tort is a Latin term which means “twisting out” in its popular sense it means twisted or unlawful'. The meaning for the ...

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1. a) Define the term “tort” and distinguish it with Crime and Contract b) Define ‘tort’ and explain the reasons for slow development of “Law of Torts” in India? INTRODUCTION: The word tort is a Latin term which means “twisting out” in its popular sense it means twisted or unlawful'. The meaning for the term tort that is ‘twisted’ or ‘unlawful’ is equivalent to the English word ‘wrong. This term tort was introduced into the English law by Norman jurist. Generally, it is the duty of everyone to respect the legal rights of others. Whenever a person violates his legal duty it amounts to wrongful act. And if that wrongful act caused injury to the legal rights of others, then the aggrieved person can file a writ against him for damages. By this we can understand that tort consists of wrong or unlawful acts which violates the legal rights of a person, for which law provides remedy of un-liquidated damages. Law of torts in India In India the law of torts was introduced through British courts. It is a branch of English common law. In India law of torts has not been successfully codified and it is still based on common law of England, which have been applied by the Courts in India. In absence of codified law, Indian Courts apply the rules of justice, equity, and conscience. Reasons for slow development in INDIA In India the process for development of law of torts started very late. The reason for such delayed development was that the large part of the Indian population lives in villages. They are poor and illiterate they have a little knowledge about their legal rights. Even though some of the Indians have knowledge about their rights they do not prefer to go to Courts, under these circumstances they use to keep quiet even though their valuable legal rights are been violated. the cost of litigation in India is very high At the same time the Indian system of justice is very expensive and dilatory. Such circumstances lead for slow development of the law of torts in India in which we can find out the following reasons A. UNCERTAINITY OF LAW. B. LACK OF POLITICAL CONSCIOUSNESS. C. ILLETERACY. D. POVERTY. E. EXPENSIVE AND DILATORY. F. JUDICIAL SYSTEM.

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2 A. UNCERTAINITY OF LAW. It is a well known fact that law of Torts is not a codified law and it is still developing due to the uncodified law there is no uniformity uncertainty in its rules and doctrines. one of the reasons for such uncertainty is lack of precedents and the precedents which are available in England are not suitable to be applied in the Indian situations. B. LACK OF POLITICAL CONSCIOUSNESS. Due to lack of political consciousness and awareness most of the people are not aware of their rights. Even some of the Indians where aware of their legal rights they do not have courage to go to the courts and seek remedies against the violation of the rights. Another important thing is in India emphasis is on the performance of one's duties rather than assertion of rights. C. ILLETRACY. the main reason for ignorance of there right is due to illiteracy. Due to illiteracy they do not have knowledge as well as courage to go to courts for remedy against violation of their rights. D. POVERTY. Most of the population of India in economically backward and as a result of this they are not capable of meeting the high cost of litigation for the enforcement of their rights. so poverty is the factor for the less number of torts in India E. EXPENSIVE AND DILATORY JUDICIAL SYSTEM. Indian judicial system is dilatory and very expensive. The rate of court fee and the lawyer's fee is very high, consequently, the poor may think that instead of going to the courts suffering from violation of rights is a better thing. RECENT TRENDS UNDER LAW OF TORTS Inspite of above mentioned difficulties the law of torts in India is developing. The main reason for this is expansion of education and political consciousness in the Indian society about their rights. Another reason for their development is no court fee is charged on the basis of valuation and the claims part from that there the rules which are applied by the Indian Courts in India while dealing tort cases they are as follows. A. RULE OF NO FAULT LIABILITY. Under section 140 of the motor vehicles Act, 1988, on the recommendation of the law commission, this rule no fault liability have been included. The purpose of including such a rule in the act as to provide for payment of compensation in certain cases of accidents in which there is no proof of fault or negligence on the part the owner or the driver of the motor vehicle. According to this rule the owner of this vehicle involved in a accident will be liable to pay compensation of a fix that sum of rupees 50000. In respect of the death of a person and a fixed sum of 25000 in respect of permanent disable of a person. B. RULE OF STRICT LIABILITY. This rule has been laid down in a famous English case Ryland vs. Fletcher in the year 1968. In this case the house of Lords has laid down the rule that a person who use his land for non

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3 natural purposes is responsible for the harmful consequences of other. Mostly such harm may cause to others. When there is escape of things from defendant’s land and non-natural use of land. But under this rule there are some exceptions such as act of God, act of a stranger, mistake of plaintiff etc. B. RULE OF ABSOLUTE LIABILITY. The rule of strict liability which was laid down by the house of Lords has applied more honestly by the Indian Supreme Court in MC Mehta vs Union of India case in the year 1987. the rule laid down MC Mehta case is known “as rule of absolute liability” at the time of laying down this rule the supreme court held that, the rule of strict liability which was laid down in the 19th Century did not fully meet the needs of a modern Industrial society. In order to make the concrete one it laid down the rule of absolute liability. Under this rule there an enterprise is engaged in a hazardous or inherently dangerous activities, and if any loss or damage is then the enterprise is strictly and absolutely liable to pay compensation to all those who are affected by such accident. While applying the rule of absolute liability no exception as it was under the rule of strict liability may be given. DEFINATION OF TORT Due to various reasons, defining the term tort is a difficult task. The first among the so many reasons are, the definition has to include great variety of a rights and duties. Another difficulty is that the law of torts is not a codified law. And the second important reason is, it is an ever growing law and the courts are expanding its horizon and scope continuously. Inspite of these difficulties, many jurists have attempted to define the term tort. Some of the leading definitions as well as criticism on those definitions is follows. SALMOND According to salmond “ Tort is a civil wrong for which the remedy in common law is action for unliquidated damages, and which is not exclusively the breach of a contract or the trust or the breach of other merely equitable obligations”. The definition of Salmond for the term tort consists of the following three essential elements a. Tort is a civil wrong. b. This wrong is different from breach of contract. c. This tort is redresseble by an action for unliquidated damages. DEFINITION OF FRASER. According to Fraser “ A tort is an infringement of right of a private individual giving a right of compensation at the suit of the injured party”. DEFINITION OF Dr. WINFIELD. According to Dr. Winfield “ Tortious liability arises from breach of duty primarily fixed by the law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages”. Like wise the definition of salmond for the term tort, Dr Winfield’s definition also consists the following essential elements.

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4 a. Tortious liability arises from breach of duty fixed by law. b. This duty is also towards persons generally. c. Breach of duty is redressible by an action for unliquidated damages. A. BREACH OF DUTY FIXED BY LAW. Being a member of society a man is bound to observe certain duties made by the society which are based on relief or The duties are such as to give food to a man who is starve to save a man who is starving to save a man who is drowning in a river etc. These are not to rules fixed by law and violation of these duties does not amount to tort. But there are some rulers which were fixed by law. For example, if a person makes a defamatory statement against the other, it amounts to tort and the other persons can file a suit for damages. B. DUTY IS TOWARDS PERSONS GENERALLY. In tort, duty is towards persons generally and not against some particular persons. That means if a person’s legal right is violated by any one among the general public then the effect person can file a suit for damages. If we take one of the tort i.e. Defamation as an example no person among the general public should not publish defamatory statement against the other. C. BREACH OF DUTY IS REDRESSABLE BY ACTION FO DAMAGES. In tort the person who suffers any harm from the wrongful out of the other can bring. Section in the court for unliquidated damages. It is so, because under tort damage does not arise our contract. If it is in case of breach of contract the defendant. If liable for a define amount of damages. But the amount of damages for tort will be determined by the court. CRITICISM OF WINFIELD’S DEFINITION. Like other definitions Dr. Winfield’s definition is also not a satisfactory and perfect definition and suffers from many defects some of the defects by which Winfield’s definition suffers from are as follows: a. DUTY FIXED BY LAW. As it was defined that Tortious liability arises from breach of duty, fixed by law is not perfect. But it is useful in understanding distinction between contractual liability and Tortious liability. But there are many circumstances where by contractual liability also a tort may arise. For example, liability of the driver of a car for his passengers. b. DUTY TOWARDS PEROPLE GENERALLY. According to the definition there will be a duty fixed by law towards people generally. This is vary vague. But in modern ...... there are some duties which may arise out of special relationship such duty is not towards people generally but towards people particularly. Examples for special relationship by which are, passengers and carriers, doctor and patients etc.

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5 CRITICISM ON WINFIELDiS DEFINATION. Like other definition Winfield’s definition is also not satisfactory and perfect. His definition suffers many defects which are as follows: a. DUTY FIXED BY LAW. According to him tortious liability may arise from breach of duty fixed by law. Even though it is useful to understand the distinction between contractual and tortious liability it is not satisfactory and perfect in its full sense. But in modern times there are so many circumstances whereby contractual liability also a tort may arise. For example, liability of the driver of a car for his passengers. So in this sense the definition is defective one. B. DUTY TOWARDS PEOPLE GENERALLY. According to the definition breach of duty fixed by law towards people generally is vague and incorrect. But in modern times there are some duties which may arise out of some special relationship particularly. This duty is not towards people generally but towards people in particularly. Examples for such special relationships are by which a tort may also arise, the relationship between passengers and carriers, doctor and patient, guardian and ward, trustee and beneficiary, etc. Despite of the above criticism it can be said that Dr.Winfields definition is sufficiently workable and is for better than definition for the term tort. DISTINCTIONS: TORT A. In Tort, there is infringement of private or civil rights of individuals. B. In Tort, the suit against the wrongdoer is initiated in a civil court. C. In Tort, the wrongdoers has to pay compensation to the injured persons. D. In Tort the suit for damages is filed in the court against the wrongdoers by the plaintiff himself. E. In Tort the defendant is reliable of liability by paying compensation to the plaintiff. F. In Tort the main object is to compensate the plaintiff for the loss suffered by him from the wrongful act of the defendant.

TORT A. In Tort the breach of duty, i.e, violation of a duty was caused or not, can be determined by keeping in view the provisions provided. Under law of torts It breach of duty in torts may be decided by the fined provisions under law. +

CRIME In Crime, there is breach of public rights which affect the whole community. In Crime the legal proceedings are initiated in a criminal court. In Crime the criminal is punished by the State in the interest of society. In Crime proceedings are initiated against the accused by the State. Where as in Crime the guilty person is punished. But in Crime the main task is to teach him lesson by punishing the accused so that he may not repeat it in future as well as it becomes an example for others.

CONTRACT In Contract, the determination such breach or violation of contract can be determined by king to consideration, the terms of the particular contract means breach of contract may be determined by the terms of the contract concerned.

6 B. In Torts there is violating of right in rem, it means, that under tort, if a person’s right is violated by any other person among the general public, then the affected person can file a suit against any person who else caused such violation.

But in contract, there is violation of right in personam, it means if any person’s right in a contract is violated, then he can file a suit against that person only by whom such violation caused.

c. In Tort motive or intention, for breach of duty is immaterial and may not be taken into consideration. It is because, sometimes, a person with good motive or intention may try to save a person. If any harm is caused, then a suit cannot be filed.

But in Contract the motive or intentional of a person can be taken in consideration. It is so because in a contract if any violation of the terms of contract is used, by which any injury is caused, then the person cannot say that he violated the terms with good motive or intention. But in contracts the nature of awarding damages may be compensatory, punitive, or exemplary it means the purpose of awarding damages in contracts is to give compensation to the injured person but not to punish the person who caused such injury. But in Contract, generally damage are liquidated. It means, generally the damages are fixed depending upon or by taking into consideration the terms of that particular contract.

D. In Tort, the way of awarding damage is known as exemplary. It means the purpose of awarding damages in torts is to punish the person by whom such injury was covered.

E. In Tort, generally damages are unliquidated. It means awarding damages in tort may depend upon the nature of facts and circumstances of the case. CONCLUSION.

Even though the process for development of law of torts started vary late, later on it developed rapidly. At the same time, the number of cases filed in torts were also increased simultaneously. The various rules such as Absolute Liability, Strict Liability, Doctrine of Estopel etc., can be considered as the proof of developments of law of torts.

2. What are the conditions which must exist before a person is held liable in tort? What are the essential elements of a tort? What are the general conditions of liability in tort? In the ordinary course of time an act may be consideration as wrongful act when certain conditions exist in that act. For example, under Indian panel code to determine the act of offence of murder various conditions such as guilt of intention, motive etc., are considered. In the same way to constitution a wrongful act such as tort these conditions are in existence then only, the person concerned maybe hold liable in the tort. These conditions are as follows: A. WRONGFUL ACT. B. LEGAL DAMAGE.

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7 C. LEGAL REMEDY. A. WRONGFUL ACT. An act which is done with out any lawful consideration can be called as wrongful act. To hold a person liable in tort, such wrongful act must be proved. A wrongful act is one which violates the legal right of another, violation of moral, social, and religious duties does not come under the category of tort, Thus in tort the plaintiff has to prove that his legal rights have ben violated by the act of the defendant. tortious liability may rise under two circumstances. they are by doing an act which is prohibited that means by violating the legal right in this context. rights may be classified into two kinds which are as follows: PUBLIC RIGHT. Public rights are those rights which belong to the members of a state in general . Whenever a public right is violated no action in tort shall be taken unless the person concerned suffers from social damage. Example every person may have a right to work on the public Road it is also known as public right in this context is a person known as a fixtures bamboos across the public road and blocked the way then no action can file a Suit against under tort it amounts to violation of public right of others. PRIVATE RIGHT. Private rights are those rights which belong to the member of society in particular Example according to the above example if the bamboo fixed by the person causes injury to a person then it amounts to tort it is why because the person has suffered from special damage. C. LEGAL DAMAGE. Damage is the direct result of the difference wrong act the main object of the law of tort is to protect harm from being caused to the property, body and Prestige of a person the provision of law of torts provides damages as compensation. Someone must know what is meant by damage and damages DAMAGE Damage means the harm or injury caused to one person by the wrongful act of the other DAMAGES. Damages means the compensation which is given to a person for the harm or injury that was caused to him due to the wrongful act of another

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8 In the eyes of law for every device damages or compensation may not be given. Only in case of legal damage damages may be given as compensation. To obtain compensation, one must prove that he had Support some legal damage. the real meaning of legal damage may be ascertained by the following two magazines A. DAMNAUM SINE INJURIA.a. B. INJURIA SINE DAMNUM. A. Damnum sine injuria The meaning of the above maximum is as follows considered DAMNUM : the term damnum means damage in the form of money comfort and health SINE : The terms sine means without INJURIA : The term injuria means violation of legal rights The three terms in the above maxim together gives the meaning that a damaged that cause in the form of money, comfort and health without the violation of legal rights DEFINITION. SIR FEDERIC POLLOCK. The observation of Sir Frederick Pollock, with regards to 'Damnum sine Injuria'. Men do many things such acts which causes an inconvenience or harm to others which is likely to cause harm of inconvenience but without doing such acts. it is not possible to carry on his ordinary activities in society, hence no complaint can be made for such harm or inconvenience". The above observation gives the meaning that damage is not the basis of action unless such damage is the result of violation of legal rights of plaintiff. GLOUXESTER GRAMMER SCHOOL CASE, 1410 According to the facts of the case, the plaintiff was running the school and the place later on, the defendant started another school near the school of the plaintiff as a result of this most of the students of the plaintiff left the plaintiffs school and joined defendants school, to meet the competition the plaintiff reduced their fees from 40 penie to student per quater. Thus the plaintiff suffered huge amount of loss then the plaintiff filed a Suit against the defendant for compensation. where both the plaintiff and defendant have the legal right to establish a school, which the exercised respectively even though the establishment of new school near the plaintiff ca...