LAW OF TORTS
The word “Tort” is derived from Latin word “Tortum” meaning “Wrong”. It’s meaning, for legal purpose, is a legal wrong or injury.
Need of Law of Torts
Law of torts creates a balance between individual’s freedom of action and society’s interest of security. The law provides for freedom to the extent it does not damage social order or causes injury to the people around.
The law of torts does so by providing for pecuniary compensation for injuries to person and property. The compensation is recoverable by the process of law. This compensation shifts the loss from the ‘victim’ to the person who caused it.
Tort differs from crime as it is redressed by compensation or damages, while crimes are punished by way of imprisonment or fine or other means. At times, the same wrong may be a tort as well as a crime concurrently, for which both actions may be initiated.
Tort also differs from breach of contract. The law of contract deals with rights and duties arising out of agreement of parties. While, law of torts deal with rights created by operation of law and duties imposed on persons in general.
DEFINITION
Salmond has defined Tort as a civil wrong for which remedy is common law action for unliquidated damages and which is not exclusively breach of Contract, breach of Trust or other mere equitable obligations.
Althoughthe above definition may appear technical, but the main ingredients of tort are –
1. Civil Wrong
Tortis a civil wrong in the senseit is different from criminal wrong or Crime, for which Criminal prosecution may be launchedand the chief idea isto punish the wrong doer by way of imprisonment orfine. In civil wrong, there is sanction in form of damages orcompensation, restitution, injunction etc.
Civil Wrong presupposes Legal Right. Without Right, there can be no wrong. This wrong can beseen as infringement of Right or breach of legal duty. Anaction for tortmaybe brought by any person who’s right has been infringed or in whose favour the duty existed has been breached.
In this reference followingtwo maxims must be considered –
i. Injuria sine damno i.e.injury without damage
Injury means legal wrong, whereas damage means loss. This maxim speaks of cases where a person’s legal right has been infringed although no loss has occurred to him. For example, In a case where a person was the deniedhis right to vote but the candidate he intended to vote won the electionnonetheless, it was held that although there was no loss but the plaintiff was legally wronged and as such could bring an action in tort
ii. Damnum sine injuria i.e.damage without injury
This maxim speaks of cases where a person has incurred loss, but none of his right has been infringed. For example,where a person started a new school in proximityof old one, the old schoolloses many students and thus sufferdamage and monetary loss. But the old school cannot maintain action in tortbecause there is no legal wrong. No legal right has been infringed norany duty breached.
2. Unliquidated Damages
Damages refer to measure of harm. Since, under tort law, the the measure of injury cannot be predefined, hence the damages are in this very nature unliquidated i.e. not pre-ascertained. Here, a reference may be made to contractual liability where parties may make a genuine pre-estimate of loss in case of its breach. But in tort, the damages are determinable only after the incident actually occurs.
