LawpreneurzLAW OF TORTS
As we have seen in the last chapter following are the constituent elements:1. There must be a wrongful act:
To constitute a tort, there must be a wrongful act. The word "act" is used to include both positive and negative acts i.e., acts and omissions. Wrongful act is an act which is contrary to the provisions of law and causes injury to the legal rights of another person eg. act of trespass, tort of defamation, etc. There is a person who has a legal duty to do some act and he fails to perform that duty. The wrongful act or wrongful omission must be recognized by law. Therefore a mere social or moral wrong is not enforceable.
Failure to do something in doing an act is a bad way of performing the act. For example, if a lawyer gives an opinion without taking notice of the change in law brought about by a reported decision of the Supreme Court, he would not be guilty of an omission but of performing the act of giving his opinion in a bad way.
To constitute a tort or civil injury, there must be
- a wrongful act committed by a person,
- The wrongful act must give rise to legal damage or actual damages; and
- The wrongful act must be of such nature as to give rise o a legal remedy in form of an action for damages.
Damages means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act of another. The sum of money awarded by the court to compensate damage is called damages. There can be no action under the law of tort unless there has been violation of legal right of another person. Legal damage means violation or infringement of legal right.Absolute Rights and qualified rights:
When an absolute right is violated the law conclusively presumes damages although the person wronged may have suffered no pecuniary loss whatsoever. The damage is so presumed is called legal damage. Therefore the absolute right is actionable per se i.e. without proof of any damages. Plaintiff has to prove that there was a wrongful act or omission on the part of defendant, causing thereby breach of legal duty or violation of legal right of the plaintiff vested in him and recognized by law. Hence violation of legal right is actionable and it is immaterial whether plaintiff suffered any loss in terms of money or not.
In Qualified right, the injury or wrong is not complete unless the violation of the rights in actual or special damage is proved. The person should prove that he has received more or special damages from the world at large.
Injuria sine damnum means injury without damage. It is an infringement of an absolute private right without any actual loss or damage. Plaintiff will be compensated if his legal rights are violated even though there is no actual loss or damage is suffered.
In case of Ashby v. White - Plaintiff was confined by returning officer due to which plaintiff was not able to cast his vote. Though the party in the election won the election but there was violation of the legal right of the person, so here compensation was granted.
In case of Bhim singh v. State of Jammu and Kashmir - In this case the petitioner was an MLA of Jammu Kashmir assembly who was wrongfully detained by the police while he was going to attend the assembly session. He was not produced before the Magistrate before the requisite period. As a consequence of this, the member was deprived of his constitutional rights. There was also the violation of the fundamental rights to personal liberty guaranteed under article 21 of the Indian Constitution.
Damnum sine injuria means damage without injury. Causing of damage, however substantial, to another person is not actionable in law unless there is also a violation of legal rights. Therefore, there will be no compensation for the plaintiff unless there is also a violation of legal rights.
In case of Glaucester Grammar School Case – In this case, the defendant set up a rival school near the plaintiff's school, due to which the plaintiff suffered loss as his student started joining the defendant's school. Due to this competition, the plaintiff has to lower down his fees. So plaintiff sued the defendant to seek compensation but no compensation was given as there was no violation of his legal rights.
In case of Mogul Steamship Co. Mc. Gregor's Crew and Co - All the steamship companies united and drove the plaintiff's company out of the tea trade company by reducing their freights due to which the plaintiff suffered losses. No compensation was given as the other companies were only doing marketing practices and also there wasn't any injury to the plaintiff.3. It must give rise to a right.
The wrongful act of the defendant must come under category of wrongs for which the remedy is civil action for damages. The essential remedy for tort is an action. Injunction can also be claimed.
The law of tort is said to be a development of maxim "ubi jus ibi remedium" that there is no wrong without a remedy. If a man has a right he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in exercise or enjoyment of it. It is in vain to imagine right without remedy. Thus where there is no legal remedy, there is no legal wrong.
If out of above three elements are absent or missing, then there is no tort. Wrongful act and legal damages goes hand in hand.References:
- The Law of Torts by Ratanlal And Dhirajlal, 23rd Edition.
- Sir Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law, 4th edition.
LawpreneurzDetails of lecture
|Lecture 2||Constituent Elements of Torts|
|Lecture 3||Mental Elements of Torts|
|Lecture 4||Personal Capacity|
|Lecture 5||Foreign Tort|
|Lecture 6 & 7||Justification of Torts|
|Lecture 8||Death in relation to Torts|
|Lecture 9||Discharge by Torts|
|Lecture 10||Vicarious Liability|
|Lecture 12||Trespass to Person|
|Lecture 14||Trespass to Land|
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