Q what do you understand by tort ? Explain with examples. Distinguish between tort & contract.
Q Define tort and discuss its essential and exceptions.
Q Define and discuss tort and distinguish it from crime and contract preferable with reference to examples.
Q what are the elements of tort explain in details?
Q Write the essentials of tort. Describe the purpose , function and scope of the law of tort.
The word “Tort” has been derived from the latin word ‘‘Tortum” which means ”to twist”. . It was introduced into the English law by the Norman jurists.it is not a statutory act or law, custom and usage having the force of law. It is not codified so it is not act it is statutory law. The law of tort covers a wide range situations such as passenger injured in a road accident or a patient injured by negligent doctor and many others. In broad terms, a tort occurs where there is breach of a general duty fixed by civil law. When a tort is committed, the law allows the victim to cliam money, known as damages, to compensate for the commission of the tort. This is paid by the person who commited the tort ( tortfeasor). In some cases the victim will only be able to claim damages if they can proved that the tort caused some harm but in others which are describe as actionable per se, they only need to prove that the relevant tort has been committed.
Definition:
According to Dr. Winfield ”tortious liability” i.e., lioability in torts arises from the breach of duty primarily fixed by law, such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
Sir john salmond defines tort as, ‘a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of a trust or other merely equitable obligation’.
Aims of tort: (function)
At a very general level, however, we may say that tort law is concerned with allocating responsibility for certain types of losses. Tort aims principally at the prevention or compensation of harms. In the great majority of tort actions the claimant is seeking monetary compensation for the injury he has suffered , and this fact strongly emphasis the function of tort in allocating or redistributing loss. In many cases, however the claimant is seeking an injunction to prevent the occurrence of harm in the future and in this area the direct ‘preventive’ function of tort predominates.
Ingredient of tort:
1. Wrongful act :
The first essential ingredient constituting a tort is that a person must have committed a wrongful act. This refers to an act of commission, or, omission that is , 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 is ‘wrongful’ because, there must have been a breach of duty which has been fixed by law itself.
2. Legal harm/damage:
In order to prove an action for tort, the plaintiff has to prove that there was a wrongful act, an act or omission by the defendant which led to the violation of a legal right. Legal rights are conferred by the State on all its citizens. There are two types of Legal rights, viz, public rights and Private rights.
Private rights are vested in persons in general by virtue of law. It can be further divided
into two types, namely,.
Tort is independent of Right in Personum
Right in rem is a private right that a person is entitled to against the society as a whole, and is not limited to against any specific person. Example: Right to property, Right to reputation, etc.,
So wherever there is an infringement of a private legal right, there arises a possibility of a damage, which includes not only monetary loss, but also loss due to and arising from physical injury, health, nervous shock, loss of comfort, and loss to property
3. Legal remedy:
The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no wrong without a remedy’. The principal remedy for tort is damages whereas damages mean the compensation claimed by the injured party and awarded by the court.
4. Unliquidated damages:
Usually the court awards monetary compensation. Since the damages are unknown at the time of the event of tortious act of commission or omission, the damages are referred as unliquidated damages which
are decided by the court based on facts and merits of a particular case. The different kinds of damages that are awarded by courts are as under:
i. Contemptuous damages or derisory damages
ii. Nominal Damages:
iii. Ordinary damages or Compensatory damages:
iv. Aggravated Damages:
v. Exemplary damages or Punitive Damages
Besides monetary compensation there are other remedies such as self-help, injunction and specific restitution are also available.
5. Independent of contract, trust and crime:
The final ingredient of tort is that it is independent of contract, trust and crime.
Foundational concepts in tort law:
a. Intention : intention is inferred from conduct though its impossible to do. Some torts require proof that the defendant acted with a particular intention. When a person intends to bring about a consequence if it is his goal to cause it, this is the definition of intention for the purpose of tort.
b. Negligence: negligence qua species of fault refers to a failure to take as much care as the hypothetical reasonable person in the defendants position would have taken in the circumstances.
c. Strict liability: a defendant may be liable in some torts irrespective whether he was at fault. Such tort impose strict liability. They lack a fault element, such as intention or negligence. It is important to note that strict liability means liability regardless of whether the defendant is at fault.
d. Motive and malice: motive signifies a persons reasons for committing a particular act. The term malice in tort may mean what the layperson usually takes it to be-evil motive or spite-or the purpose of causing harm to someone. Malice is relevant in following torts
-defamation -Malicious prosecution
Tort and other sources of compensation: (exceptions)
The law of tort in practice is concerned with the problem of accidental injury to the person or damage to property and the general approach of the law to these problem rests on two broad principles . both are subject to many exceptions and qualifications but by and large it is the case
1. That the victim of accidental injury or damage is entitles to redress through the law of tort if, and only if, his loss was caused by the fault of the defendant or those for whose fault the defendant must answer, and
2. That the redress due from the defendant whose liability is established should be full or should, in other words, be as nearly equivalent as money can be to the claimant’s loss.
In more recent times the development of insurance and social security has tended to relegate tort law to a more secondary role.
Conclusion
Thus to conclude, law of torts has been developed and has made firm roots in the legal showground. There are well defined elements and conditions of liability in tort law which enables the citizens of a state to claim redressal for the minor or major damage caused to them.
