Introduction to Law of Torts

Introduction to Law of Torts
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  Introduction to Law of Torts  A tort is a civil wrong. This is basically a breach of duty imposed by law, which gives rise to a civil right of action for a remedy not exclusive to any other area of law. How the word tort came to India? It came to India through England. In 1065 England was conquered by Normans, who were the French speaking people of Normandy, a region of France. After Norman Conquest, French become the spoken language in the courts in England, and thus many technical terms in English Law owe their srcin to French and tort  is one of them. The word tort is based on the idea that everyone in the society is having certain rights. The purpose of this tort law is to enforce the rights and duties. Some Important definitions- Black’s Law Dictiona ry defines a tort as  –  A civil wrong for which a remedy may be obtained, usually in the form of damages. Salmond’s Definition - Tort is a civil wrong for which remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract, or the breach of trust, or other merely equitable obligation. Winfield’s Definition - Tortious liability arises from the breach of duty primarily fixed by law. This duty is towards persons generally and it’s breach is repressible by an action fo r an unliquidated damages. Fraser’s Definition - Tort is an infringement of a right in rem (right in general) of a private individual giving a right of compensation at the suit of the injured party. Limitations Act, 1963-  According to this act, tort is a civil wrong which is not exclusively a breach of contract or breach of trust. Essentials of Tort  –  The essentials of tort are as follows- 1.   There must be a wrongful act. 2.   The wrongful act must result in legal damage to another person. 3.   It must give rise to a right.  Difference between tort and crime- 1.    A tort is a wrong against individual; whereas a crime is a wrong against the society. 2.   In tort the defendants will be sued in a civil court, whereas in a crime the defendants will be sued in a criminal court. 3.   The main purpose of the law of tort is to provide the individual who has suffered from any wrong, infringement of their right, with a remedy to enforce their rights, whereas the main purpose of the criminal law is to maintain law and order and protect the public. 4.   Standard of proof in tort should be balance of probabilities whereas in crime it should be beyond reasonable doubt. 5.   Burden of proof in torts rests with the claimants, whereas in crime the burden of proof rests with the prosecution. Difference between tort and breach of contract- 1.   In case of tort damages are always unliquidated, whereas in the breach of contract the damages are liquidated. 2.    A tort is a violation of a right in rem, whereas breach of contract is an infringement of a right in personam. 3.   In tort, the duty is imposed by the law, and is owed to community at large whereas in breach of contract the duty violated is a specific duty owed by either party to other alone. 4.   In tort, sometimes motive is an essential factor, whereas in breach of contract motive is not an essential factor. 5.   Law relating to tort has not been codified, whereas law relating to contract has been codified. Two principles to be remembered in torts, they are as follows:- 1.   Damnum sine injuria 2.   Injuria sine damnum Damnum sine injuria  means damage without injury. In other words, 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. Case laws for damnum sine injuria- 1.   Glaucester Grammar School Case  –  In this case, the defendant set up a rival school neae 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.  2.   Ushaben v. Bhagya Laksmi Chitra Mandir   –  In this case the plaintiff sued the defendants for permanent injunction as movie “JAI SANTOSHI MAA” was hurting the religious sentiments as Goddess was depicted as jealous. No compensation was given as there ws no violation of the legal right. 3.   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 frei ghts 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.   Injuria sine damnum  –  Injuria sine damnum means injury without damage. It is an infringement of an absolute private right without any actual loss or damage. Therefore plaintiff will be compensated if his legal rights are violated even though there is no actual loss or damage is suffered. Leading cases for injuria sine damnum- 1.   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. 2.   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. In this case the court ordered to pay exemplary damages of Rs 50,000 to the petitioner. 2.1 MENTAL ELEMENT  A Tortious liability may arise if a person causes any injury related to the victim’s life, property, reputation, etc. This liability is civil in nature. In law of tort, the liability can be incurredregardless of whether the injury was inflicted intentionally or by accident. Mental Elements - Essentially in Tort 3/17 Unlike tort, the presence of mens rea is pertinent in criminal law. However, in law of tort, its existence is dependent upon the circumstances and facts of each case. It may or may not beessential to prove a mala fide intent to fix liability upon the tort feasor . The importantquestion which arises is that how far mental element is an essential element in determiningthe tortious liability. In this chapter, we shall deliberate upon this question. The author hasdiscussed concepts of intention, motive, malice, negligence, recklessness and fault to understand the essentiality of mental element in the law of tort. Hence, on the basis of intention, tort can be divided into two broad categories namely: a) Intentional Tort b) Unintentional Tort  2.1 a) INTENTIONAL TORT It is a type of tort that can result only from the intentional act of the wrong-doer. Common intentional torts are battery, assault, false imprisonment, trespass to land, trespass to chattels, and intentional infliction of emotional distress . Knowledge along with reasonable and substantial certainty, that an act of the defendant shall produce a tortious result, is sufficient to hold him liable . 2.1 b) UNINTENTIONAL TORT In the case of an unintentional tort, the defendant causes injury to the plaintiff, but withoutany mala fide intention. It may be called an unintended accident. The person who caused the injury did so inadvertently because he/she was not being careful. Such a person may be termed as negligent or reckless. In the event of an unintentional tort, we may notice that the injury is caused due to the omission of the “duty of care”  which a reasonable and prudent man ought to have considered. 2.2 RELEVANCE OF INTENTION 12/9/2018 Mental Elements - Essentially in Tort 4/17  Prosser’s Handbook of the Law of Torts says that intention in tort law is not necessarily ahostile intent, or a desire to do any harm. Rather it is intent to bring about a result which willinvade the interests of another in away that the laws will not sanction .Theories of intent in tort law can be either subjectivist or objectivist. The former theory aimsto punish the tortfeasors for intentionally or at least knowingly violating norms that are implicitin the law. The principle underlying is that the mental state of the wrong doer is important while determining the appropriateness of the liability. On the other hand, under the objectivist theory, fixation or determination of tortious liability is exogenous with respect to the mental state of the wrong doer. For example- It is clear in thecase of trespass that one can be found liable for it even though there was no intent to trespass. If A points an unloaded gun at B, he could be held liable for assault even though he sincerely, though erroneously, believed that B knew that the gun was unloaded. In such an event of assault, intent to harm or to put someone in the fear of immediate harm is of grave importance. Here, the tortfeasor cannot take any defence. We must also understand that in certain circumstances, the absence of intention or a bona fide mistake is a good defence. For example: Vicarious liability of a master for the tort of his servant may be neglected by a mistake of the servant which is outside the course of his employment In popular sense, Intention implies that the defendant is completely aware of his conduct and the natural consequences which are bound to follow. Moreover, he has a strong desire for the occurrence of those consequences. In Wilkinson v. Downston , the defendant joked to the plaintiff that her husband had met with and an accident and was admitted to a hospital. This news shocked her and she fell seriously ill. Thereafter, she sued the defendant for damages under tort. The defendant contended that he never wanted to cause any harm to the plaintiff but cut a joke only. The Mental Elements - Essentially in Tort 5/17 court rejected his contention and held him liable. Here, the court observed that mere  intention is not an essential element in tort. The defendant knew the natural and probable consequences of his act which caused damage to the plaintiff. Therefore, he was liable, whether he intended it or not. 2.2.1 INTENTIONAL OMISSION In such circumstances also there is no need for intention in tort. For example: if a nurse deliberately allows a child to get into a position of danger and receive injuries, she will be held liable. Here it is not the intentional omission which is the basis of liability, but it is the breach of her duty to look after and take care of the child.  As already discussed, we know that Intention by itself is not a good defence in tort. It is clearly impossible to know what is going on in the mind of the defendant. Chief Justice Brian has aptly described the above argument in the following words: “It is common knowledge that the thought of man shall not be tried, for the devil himself   knoweth not the thou ght of man”  2.3 MOTIVE Motive is the state of mind of a person which inspires him to do an act. Generally, it means the purpose behind the commission of an act. Motive, just like intention, is generally irrelevant in the law of tort. According to Salmond, “It is the act and not the motive for the act that must be regarded. If the act, apart from the  motive, gives rise merely to damage with legal injury , the motive, however reprehensible it may be, will not supply that element.”  The decision of Lord Watson in Allen v. Flood , settled that Motive is irrelevant in the law of torts: 12/9/2018 Mental Elements - Essentially in Tort 6/17 “Although the rule may otherwise with regard to crime, the law of England does not take into account motive as a constituting an element of civil wrong. Any invasion of the civil right of another person is itself a legal wrong, carrying it with the liability to repair its necessary or natural consequences in so far as those are injurious to the person whose right is infringed, whether the motive which promoted it to be good, bad or indifferent.”  The Indian courts have also spoken about the irrelevancy of motive as well as malice in a number of cases. In Vishnu Basudeo v. T.L.H. Smith Pearse , Mudholkar. J. observed, “The leading case of Allen v. Flood, lay down that as a general rule, a bad motive is an  essential condition of liability for a civil wrong except in cases like malicious prosecution, defamation and conspiracy. What has ordinarily to be seen is the unlawful act. If it is so, then motive with which it was done is of little significance. In this case, however, it has been held that the act must presume to have been intended by the respondent to cause mental and bodily distress to an appellant I agree with this view.”  In conclusion, we could say that a good motive is no justification for acts otherwise illegal and a bad motive does not make wrongful an act otherwise legal. 2.3.1 EXCEPTIONS TO RULE There are certain categories of tort where motive may be an essential element, and therefore relevant in determining liability:
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