The word tort has been derived from the Latin term PDF

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The word tort has been derived from the Latin term 'tortum’, which means 'to twist'. It includes that conduct which is not straight or lawful, but, on the other hand, twisted, crooked or unlawful. It is equivalent to the English term 'wrong'. This branch of law consists of various 'torts' or wrongful acts whereby the wrongdoer violates some legal right vested in another person.

The word tort originates from the French l anguage. It i s equivalent to the English word “wrong” and Romanian l aw’s term “delict”. It i s derived from the Medieval Latin word “tortum” which means “wrong” or “injury” which itself was further developed from the Old Latin word “torquere” which means “to twist”. It i s a breach of duty which amounts to a civil wrong. A tort arises when a person’s duty towards others i s affected, an i ndividual who commits a tort i s called a t ortfeasor, or a wrongdoer. And where there are multiple individuals i nvolved, then they are called j oint tortfeasors. Their wrongdoing i s called as a tortious act and they can be sued j ointly or individually. The main aim of the Law of Torts i s the compensation of victims. Section 2(m) of the Limitation Act,1963 , Addresses tort as being a civil wrong which i s not j ust exclusively a breach of contract or a breach of trust.

Definitions by various t hinkers According to John Salmond, He addresses tort as being only a civil wrong which has unliquidated damages (those damages for which there i s no fixed amount) i n the form of remedy and which i s not j ust exclusively the breach of contract or the breach of trust or breach of merely fair and i mpartial obligation. According to Richard Dien Winfield, Tortious l iability emerges from the breach of a duty primarily fixed by the l aw, this duty i s towards the other people generally and i ts breach i s redressible by an action for unliquidated damages. According to Fraser, A tort i s an i nfringement of a right i n rent of a private individual giving a right of compensation at the suit of the i njured party

Law of torts is a system of laws, which enables a person who has suffered harm or injury by the acts of another, to claim damages in a civil suit.

No precise or scientific definition of ‘tort’ has been framed so far. The French word ‘tort’ has been derived from the Latin term ‘Tortum’ which means to twist. Thus it implies a conduct, which is not lawful, but rather it is twisted, crooked or unlawful. It is equivalent to theEnglish term ‘wrong’, the Roman term ‘delict’, and, the Sanskrit word ‘Jimha'. A tort is a violation of a right of a person/ breach of duty by one person towards another. For example, violation of a duty not to injure the reputation of someone else results in the tort of defamation. The first reported case where the court used the word ‘tort’ is: Boulton

v Hardy (1597, Cro. Eliz. 547). In Jayalakshmi Salt Works Pvt. Ltd. v State of Gujarat (1994) 4 SCC 1, the apex court observed: ‘Tort’ dictionarily means “breach of duty leading to damage. The same meaning attaches to it in law. In general, tort consists of some act done without just cause or excuse. No scientific definition of “tort” has yet emerged so far, because the law of tort is based on judicial decisions and because of diverse species of wrongs included under it each having its own peculiar historical background. Above all, the law of tort is still in the process of development. In Jayalakshmi case, the court observed that the basic ingredients of torts are injury and damage due to failure to observe duty. The liability in tort may be “strict liability”, “absolute liability” or “special use bringing with it increased dangers to others” (Rylands v Fletcher) or “fault liability”. Such liability gives rise to action in torts. Since duty is the primary yardstick to determine the tortious liability its ambit keeps on widening on the touchstone of fairness, practicality of the situation, etc

Evolution of Law of Torts in England and India The essential nature of the law of torts is that it is not codified like statute laws. The law of torts in India is based on English Common law, which is the product of judicial decisions. In Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552, the court observed: “In the absence of statutory law in regard to tortious liability in India, the common law principles evolved in England may be applied in India to the extent of suitability and applicability to the Indian conditions.” There is very little legislation in the area of tort in India, and, elsewhere in the world. The reason is simple- tortuous liability can arise in a number of ways and the number is so large that it is almost impossible to specify each and every act on the part of the defendant who may be made liable for damages. In recent times, some parts of the law of torts have been codified, viz. The Workmen’s Compensation Act, The Employer’s Liability Act, etc. Also, laws relating to defamation, libel, etc. have been framed. Unlike England, there is very little tort litigation in India, the reasons being: lack of consciousness about one’s rights and the spirit of toleration, problem of recognition of the action by courts, and, awarding of very low damages. Thus, numerous cases of injury in India like unlawful ‘TheLawofTortsinIndia’ The law of torts as administered in India istheEnglishlaw asfound suitabletoIndianconditionsandmodifiedbytheActsofIndianlegislature.Its originislinkedwiththeestablishmentoftheBritishCourtsinIndia.Thelawof tortswasintroducedthroughtheseBritishCourts. ThefirstBritishCourtsestablishedinIndiaweretheMayor’sCourtsinthe threepresidencytownsofCalcutta,Bombayandmadras.TheseCourtswere establishedintheeighteenthcentury.Lateronthesecourtswerereplacedbythe SupremeCourtsinthesethreetowns,butsimilarjurisdictionwasconferredupon them.TheSupremeCourtsweresupersededbyHighCourtsinthosethreetowns, butthejurisdictiontoadministertheEnglishcommonlawcontinued.Thelawof tortsisabranchofEnglishCommonlaw anditwasinthismannerthatthe EnglishtortswasintroducedintheprovincesofMadras,BombayandCalcutta.

ButCommonlawsoappliedbytheHighCourtsofCalcutta,BombayandMadras isappliedonlybythoseCourtsintheexerciseoftheirordinaryoriginalcivil jurisdictionasdistinguishedbytheirappellatejurisdiction,thatis,thejurisdiction tohearappealsfrom subordinateCourts. “ReasonsforslowdevelopmentoflawoftortsinIndia” InIndiatheprocessfordevelopmentoflawoftortsstartedverylate.The developmentofthisbranch oflaw in Indiastated simultaneouslywith the modernscientificdevelopment.LargepartoftheIndianpopulationliveinvillages. Theyarepoorandilliterate.Theyhavelittleknowledgeabouttheirlegalrights. Thosewhohavesomeknowledgeabouttheserightsaresopoorthattheydonot havecouragetogotocourtsandsilentlyaccepttheviolationoftheirvaluable rights.ThecostoflitigationinIndiaisveryhigh.Apartfrom this,theIndian system ofjusticeisveryexpensiveanddilatory.Thisisoneofthebiggest obstacleinthegrowthoflaw oftortsinIndia.Ontheotherhand,theEnglish system ofadministrationofjusticeissimple,inexpensiveandfast,asaresultof whichtherehasbeensomuchdevelopmentofthisbranchoflawinEnglandand itisstilldeveloping. Inbrief,thereasonsforslowdevelopmentoftheLawofTortsinIndiamay besummerisedasfollows: 1.UncertaintyofLaw.:Itiswellknown,theLaw ofTortsisnota codifiedlawanditisstilldeveloping.Duetotheuncodifiedlawthere isnouniformityandcertaintyinitsrulesanddoctrines. 2.Lack of PoliticalConsciousness.:Due to lack of political consciousnessmostofthepeoplearenotawareoftheirrights.A largepartofIndianpopulationisilliterate. 3.Illiteracy.:Themainreasonfortheignoranceoftheirrightsindueto illiteracy.LargepartoftheIndianpopulationisilliterate. 4.Poverty.:Povertyisanothermajorfactorforthelessnumberoftort casesinIndia.MostpartofthepopulationofIndiaiseconomically backward. 5.Expensiveanddilatoryjudicialsystem.:Indianjudicialsystem is veryexpensiveanddilatory.Therateofcourtfeeandthelawyersfee isveryhigh. ItistruethatinIndiatheLawoftortshasnotbeencompletelycondified, butthisworkhasnotbeencompletelyneglectedandIndianParliamenthasfrom timetotimeenactedmanyActsinordertomakethelawclearanddefinite.The followingenactmentsareworthmentioning– 1)FatalAccidentsAct,1955 2)IndianCarriersAct,1865 3)CattleTrespassAct,1871 4)CopyrightAct,1957 5)Air(CarriagebyAir)Act,1972 6)SpecificReliefAct,1963 7)EasementAct,1882 8)IndianpatentsandDesignsAct,1911 9)WorkmenCompensationAct,1923

10) SaleofGoodsAct,199/30 11) JudicialOfficersProtectionAct,1950 12) PatentAct,1970 13) WarInjury(CompensationInsurance)Act,1943 14) MotorVehiclesAct,1988 15) TradeandmerchandiseAct,1958 16) BhopalGasLeakDisaster(ProcessingofClaims)Act,1985 Inmatterofcodification,EnglandisfaraheadofIndiaandalmostsixty percentoftheLaw oftorthasbeencodifiedthere.Thefollowingarethemain enactmentsinEngland– 1)FatalAccidentsAct,1955, 2)CarriersAct,1865, 3)SpecificReliefAct,1877, 4)EasementAct,1882, 5)ParentsandDesignsAct,1911, 6)Workmen’sCompensationAct,1923, 7)SaleofGoodsAct,1930, 8)ChildrenAct,1871, 9)CattleTrespassAct,1971, 10) PatentAct,1970, 11) MotorVehiclesAct,1939, 12) BhopalGasLeakDisaster(ProcessingofClaims)Act,1985

‘TheLawofTortsinIndia’ The law of torts as administered in India istheEnglishlaw asfound suitabletoIndianconditionsandmodifiedbytheActsofIndianlegislature.Its originislinkedwiththeestablishmentoftheBritishCourtsinIndia.Thelawof tortswasintroducedthroughtheseBritishCourts.

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Law of Trots

detention, injury to or the death of people due to adulterated foodstuffs, liquor, medicine, etc., loss due to power cut, noise and other pollutions, etc. are put up without bringing an action in a court of law.

Q.3. (a) X, who was entitled to be on the electoral roll, was wrongfully omitted from such roll. The candidate for whom X would have voted was elected. X brings an action against the election authorities. How will you decide? Will your answer be different if the candidate for whom X would have voted was not elected or lost by a single vote? (b) Practice of untouchability in any of its form is illegal in India. X, a customer, was denied entry into Y’s hotel on the sole ground of his being an untouchable. He went to Z’s hotel and could enjoy better snacks at much cheaper rates than those at Y’s hotel. X, however, wants to file a suit against Y for damages for refusing entry into his hotel? Will X succeed? A.3.(a) The present problem is based on the maxim ‘Injuria sine damnum’ i.e. violation of a legal right without causing any harm, loss or damage to the plaintiff. The election authorities are liable in any case, whether the candidate for whom X would have voted was elected or not. See Ashby v White. (b) The case is covered by the maxim ‘injuria sine damnum’. X can claim damages from Y, because Y has infringed the legal right of X. It does not matter that, in fact, X didn’t suffered any pecuniary harm.

Q.4. Is Malice/Motive an essential ingredient to constitute tort? Discuss. [L.C. II-94] Will a bad motive render tortuous, an act giving rise merely to damage without legal injury? ==================================

Damnum Sine Injuria and Injuria Sine Damnum The word tort has been derived from the Latin word “tortum”, which means ‘to twist’. Basically, tort means conduct which is not straight or lawful, but, on the other hand, twisted or unlawful. Tort in Indian provision has been

defined under the Limitation Act, 1963 under Section 2 (m) as “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”

Injuria Sine Damnum is a legal maxim derived from Latin word which means that injury caused to a party without actually suffering any physical harm or damage. In Latin ‘Injuria’ means injury, ‘Sine’ means without and ‘Damnum’ means damage. Whenever there is an infringement or invasion of legal right, the person whose legal right was violated can approach to recover damage, though he may not have suffered actual harm. There are two kinds of torts[1]:  

Those torts which are actionable per se- actionable without the proof of any damage or loss. Torts which are actionable only on proof of damage caused by an act.

Injuria sine damno falls under the first category, there is no requirement to prove that as a consequence of an act, the plaintiff has suffered any harm. The opposite of it is Damnum Sine Injuria which means that there is damage but without any legal injury.

INJURIA SINE DAMNUM The maxim has been very well dealt in the case of Ashby v. White plaintiff who was a qualified voter at a parliament election, defendant who a returning officer was refused the plaintiff to cast the vote. The plaintiff did not suffer any loss per se as the candidate in whose favor he wanted to vote won the election but his legal right was violated. The court held that the defendant is liable to pay compensation to the plaintiff as his legal right to vote was violated. The defendant committed the tort. It has been stated that when having a right he must necessarily exercise as per his convenience but if that right gets violated at any point in time or whether there was curtailment in the enjoyment of the right then there must be the remedy. Where there is a right, there is a remedy. It makes sense, but if there is no remedy for the right, then it will go in vain. Another Indian case on the same ground is Bhim Singh v. State of Jammu & Kashmir, in this case, the plaintiff was an M.L.A of Jammu & Kashmir parliamentary assembly. When he was going to attend the assembly session, police arrested him wrongfully and was also taken to the

Magistrate within 24 hours. Plaintiff was deprived of his legal right as well as a fundamental right under Article 21 of the Indian Constitution was violated. The defendant was held liable and had to pay compensation of Rupees 50,000. The court in the case provided exemplary damages for the same. Damage received by the plaintiff is because of the loss suffered; therefore the amounts for damages are determined just to compensate the victim. The court is bound to award to the plaintiff at least nominal damages for the loss suffered by the plaintiff. It is to bring the plaintiff to a position at a place whereas if no wrong was committed, to bring back to the original place. Along with this maxim another maxim is also related to it is “Ubi jus ibi remedium:” which means that “Whenever there is a legal right there is a legal remedy.” sometimes it is expressed as there is no wrong without a remedy.[4]” In another case of Marzetti v. Williams[5], the plaintiff was an account holder who was having an amount in his account he went to withdraw money by Self cheque. Though there was a sufficient amount in his account, the defendant banker refused to pay the plaintiff without any reason. So the plaintiff filed a suit against the defendant banker for damage. The court held that though the plaintiff suffered no monetary loss, the defendant is liable to refuse the customer cheque and hence suffered tort.

DAMNUM SINE INJURIA It means damage which is not attached to an unauthorized interference with the plaintiff’s legal right. Damage is caused it may or may not be substantial, to another person and is not actionable in law unless there is also the violation of a legal right of the plaintiff. The most terrible harm may be inflicted on one man by another without a legal redress being obtainable as the doer did not infringe any legal right of the sufferer. To explain further, the case, Gloucester Grammar School Case[6]– Defendant was a teacher in the plaintiff’s school and thereafter started his own school. Due to some dispute defendant left the plaintiff school and started his own school. As the defendant was very much liked by his student, children left the plaintiff school and joined the defendant school. Plaintiff sued the defendant for monetary loss. It was held that the defendant was not liable. Compensation is no ground of action as no legal right is violated. In Chasemore v. Richardson[7]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 the stream was reduced and the mill was closed for non-availability of water. Plaintiff sued deft for damage. The court held that the Defendant was not liable, because of the principle of Damnum sine injuria. There was no violation of legal rights, though the actual loss in money.

DIFFERENCE BETWEEN THE TWO:1. Injuria sine damno means Injury without damage or it means an infringement of an absolute private right without any actual loss or damage, whereas Damnum sine injuria means damage without infringement of any legal right. 2. Injuria sine damno is equal to tort whereas in the case of Damnum sine injuria is not equal to tort. 3. Injuria sine damno damages or remedy is provided whereas in the case of Damnum sine injuria no damages are provided sometimes maybe nominal damages may be provided.

JURISDICTION District Court up to the jurisdiction available under the different provisions as well as High Court has jurisdiction to deal with the subject matter but when a substantial question of law is in question, the Supreme Court can also intervene. The example is the case of Bhim Singh v. State of Jammu & Kashmir where the matter went to the Supreme Court. Special provisions have been made to deal with special tort cases such as the Consumer Protection Act, Motor Vehicle Act.

Generally speaking a person is liable for his own acts, but in many cases he may be held responsible for the torts committed by others. This is known as the ‘vicarious liability’ i.e. liability incurred for, or instead of, another. The common examples of such a liability are: Liability of the principal for the tort of his agent, Liability of partners for each other’s tort, and, Liability of the master for the tort of his servant (5)

Master and Servant

A master is liable for the torts committed by his servant while acting in the course of his employment. The servant is also liable. They are considered to be joint tort-feasors and their liability is joint and several. The master’s liability arises when the following essentials are present: (i)

The tort was committed by his servant;

(ii) The servant committed the tort while acting in the course of the employment. The master’s liability arises only when both these conditions are satisfied.

Who is a servant A servant is a person employed by another to do work under the directions and control of his master. As a general rule, master is liable for the tort of his servant but he is not liable for the tort of an independent contractor. or For the liability of the master to arise, the following two essentials are to be present : (1) The tort was committed by the 'servant'. (2) The servant committed the tort in the 'course of his employment'.

(a) Respondeat superior1 - The doctrine of liability of the master for the act of his servant is based on the maxim respondeat superior which means ‘let the principal be liable’/ ‘let the superior be responsible’ and it puts the master in the same position as if he had done the act himself. This rule has its origin in the legal presumption that all acts done by the servant in and about his master’s business are done by his master’s express or implied authority and are, in truth the acts of the master. The reasons for the maxim seem to be: (i) the difficulty in the way of proving actual authority; and, (ii) the better position of the master to meet the claim because of his larger pocket and also ability to pass on the burden of liability through insurance. In the absence of such a rule, a rich man, who employs a poor servant to commit a wrong, would go scot-free, and the person wronged would not be compensated. Further, it is also evident that imposition of such liability on the master helps to prevent accidents, because the master himself would be more careful in choosing the servant tha...