Tort Law At A Glance

MEANING OF TORT Civil Wrong based on breach of duty imposed by law Its breach gives rise to personal or civil right of action for a remedy grew by Common Law in India

MEANING OF TORT Salmond – civil wrong – action for unliquidated damages It is not a breach of contract/trust/other equitable obligation Taken from Latin word ‘tortum’, meaning twisted act or deviated from right/lawful conduct

Important factors Act or Omission, i.e., civil wrong should not be breach of contract or trust Common law action for unliquidated damages Breach of legal duty Infringement of legal right, eg, drowning in river or swimming pool

Important factors Winfield – a) duty fixed by law (in rem) b) breach c) remedy - action for unliquidated damages

Duty A legal obligation that is owed or due to another and that needs to be satisfied An obligation for which somebody else has a corresponding right Example: If you drive a car, you have a duty to obey the rules of the road

Duty of Care Would a reasonable person drive down the street with a paper grocery bag over her head? No, he would not do this Thus, part of the duty of care when driving is to not obstruct your vision Eg, cold drink manufactured & snale found in it

Aims of Tort Law Loss distribution/adjustment - shifting losses from victim to perpetrators Compensation - Pecuniary damages awarded The object of compensation is to place the victim in the position he/she was before the tort was committed. Punishment - exemplary or punitive damages.

Essential Elements of Tort Law 1) Wrongful Act/Omission – legal duty breached 2) Legal Damage – a) injuria sine damnum/damno – injury without damages (Burnard v. Haggis, (1863) 143 ER 360 – horse case) b) damnum sine injuria – damages without injury (Gloucester Grammer School case, (1410) YB Hill 11 Hen; Acton v. Blundell, (1848) 12 M & W 324); Allen v. Flood, (1895) AC 1) etc.)

Essential Elements of Tort Law 3) Mental Element – mens rea or guilty intention absent in tort law actus non facit reum, nisi mens sit rea – an act is not a crime unless it is committed with a particular criminal intention Motive v. Intention Malice in Fact - evil motive or wrongful intent to cause loss Malice in Law - act/omission not justified by law Allen v. Flood, (1895) AC 1) (trade union case) Hollywood Silver Fox Farm Ltd. v. Emmett, (1936) KB 468 - (vixen case)

Essential Elements of Tort Law 4) Legal Remedy – action for unliquidated damages

Foundation of Tortious Liability Ubi jus ibi remedium – where there is a right there is a remedy (Ashby v. White, (1703) 92 ER 126; Bhim Singh v. State of J & K, AIR 1986 SC 494)

Foundation of Tortious Liability 2 theories – a) Law of Torts – Sir John Salmond (Pigeon Hole Theory) b) Law of Tort – Sir Winfield Rylands v. Fletcher, (1868) UKHL 1); M C Mehta v. Union of India, AIR 1987 SC 1086 )

Nature of Tort Civil nature Civil suit filed in a civil court Civil liability Victim centric e.g. – Bhopal Gas Tragedy case M C Mehta v. Union of India, 1987 SCR (1) 819

Tort & Contract - Difference 1) Duty primarily fixed by Law 1) Duty fixed by the will and consent of the parties 2) Duty owed to the community at large or to persons generally (right in rem) 2) Duty owed to specific persons (right in personam) 3) No privity between parties 3) Duty based on privity of contract 4) Motive relevant in certain torts, eg., conspiracy, nuisance 4) Motive irrelevant 5) Remedy – claim for unliquidated damages 5) Remedy – claim for liquidated damages

Tort & Contract - Difference 6) Principle of vicarious liability applicable 6) Vicarious liability has no application 7) Some torts are crimes 7) A Contract can never be a crime

Tort & Crime - Difference 1) Violation of civil or personal right of the plaintiff 1) Violation of public duty affecting whole society 2) Damages awarded 2) Offender is punished with imprisonment and/or fine 3) Civil proceedings instituted by plaintiff himself 3) Criminal proceedings instituted by the State or complainant 4) Action is brought to enforce, redress or protect a private or civil right 4) Action instituted by the Government/complainant to punish offences against the public

Tort & Crime - Difference 5) Motive not relevant 5) Motive – essential element 6) Mere breach of duty for which damages awarded 6) Unlawful act prohibited by law – only remedy punishment

Overlapping of tort and crime – remedies concurrent Compensation + Punishment eg, Conspiracy; Nuisance etc.

THANK YOU Register with legaldesire.com to access more course material