![The nature of a tort
The word tort has been derived from latin term “Tortam” which means “to twist”
Is it law of tort or law of torts:-
1. Is it law of tort i.e :- is every wrongful act for which there in no justification or excuse to be treated as a tort;
[Winfield] ubi jus ibi remedium
2. It is the law of torts :- consisting only od a number of specific wrongs beyond which the liability wider
the branch of law
[Salmond] ubi remedium ibi jus](https://image.slidesharecdn.com/tort-240220052000-ba14ed84/85/tort-pptx-notes-for-ba-llb-ccs-university-2-320.jpg)
![DEFINITION OF TORT
“tort means a civil wrong which is not exclusively a breach of contract or breech of
trust.”:- section 2 (m) Limitation act 1963
Wrong
Civil Criminal
Contract Breach of trust Tort
(Compensation) (Punishment)
[unliquidated]
(liquidated)](https://image.slidesharecdn.com/tort-240220052000-ba14ed84/85/tort-pptx-notes-for-ba-llb-ccs-university-6-320.jpg)
![Mental Element in Tort
In many cases of torts the mental element is relevant to affix the liability.
For example in torts like assault, battery, malicious prosecution, state of mind of the person is relevant.
There are certain other areas where the mental element is irrelevant. In such cases the liability arises
even without intention. For example in torts like conversion, defamation, vicarious liability mental
element is irrelevant
Malice in law: It means a willful act done without legal excuse of justification.
A wrongful intention is presumed in case an unlawful act is done without just excuse.
[Smt. S.R. Venkatraman v. Union of India, AIR 1979 SC 49]
Malice in fact: It means evil or improper motive. When the defendant does any act with improper
motive, ill-will or maliciously then it is called malice in fact, Generally malice in fact is irrelevant in
the law of torts.](https://image.slidesharecdn.com/tort-240220052000-ba14ed84/85/tort-pptx-notes-for-ba-llb-ccs-university-9-320.jpg)
tort.pptx notes for ba llb ccs university
- 2. The nature of a tort The word tort has been derived from latin term “Tortam” which means “to twist” Is it law of tort or law of torts:- 1. Is it law of tort i.e :- is every wrongful act for which there in no justification or excuse to be treated as a tort; [Winfield] ubi jus ibi remedium 2. It is the law of torts :- consisting only od a number of specific wrongs beyond which the liability wider the branch of law [Salmond] ubi remedium ibi jus
- 3. Essentials of a tort To constitute a tort, it is essential that the following two conditions are satisfied 1. There must be some act or omission on the part of the defendant and 2. The act or omission should result in legal damage What is legal damage? Injuria :- Legal rights Violations Sine:- Without Damnum:– Actual harm Injuria sine Damnum :- Violation of a legal rights without causing any harm, loss or damage of the plaintiff NO NEED TO PROOVE HARM
- 4. Essentials of a tort TORT Actionable perse Proof of some damage Landmark case :- (i) Ashby vs White:- Right to vote (ii) Marzethi vs willions :- the banker refused to honour the cheque of the customer although the banker had sufficient funds in his hand. Here the customer did not sustain any actual loss or damage, even then the banker was held liable.
- 5. Essentials of a tort 3. Legal Remedy:- legal remedy is the third essential for an action in tort. A tort is a civil injury, but all civil injuries are not torts. MATHEMATICALLY TORT CAN BE SUMMARISED AS FOLLOW: Wrongs act + Legal damage + Legal remedy = Tort (a breach of legal duty) (Infringement of private Legal right of another person)
- 6. DEFINITION OF TORT “tort means a civil wrong which is not exclusively a breach of contract or breech of trust.”:- section 2 (m) Limitation act 1963 Wrong Civil Criminal Contract Breach of trust Tort (Compensation) (Punishment) [unliquidated] (liquidated)
- 7. DEFINITION OF TORT “a tort is a civil wrong independent of contract for which the appropriate remedy is an action for damages.” According to ratan lal “it is civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust another merely equitable obligation.” According to salmond “tortious liability arise from the breach of a duty primarily fixed by the law this duty is towards persons generally and its breach is redressability by an action for unliquidated damages.” According to winfild 1) Tort is civil wrong 2) All civil wrong are not tort 3) Unliquidated damages
- 8. Tort distinguished from crime and contract 1) General public 2) Right in rem 3) Motive 4) Unliquidated 5) Privity (Absence) 1) Parties 2) Right in personam 3) No important of motive 4) liquidated 5) Privity (Presence) 1) Criminal Courts 2) Public right 3) State 4) Punishment 5) Public wrong 1) Civil courts 2) Personal right 3) Injured party 4) Compensation 5) Personal wrong TORT CONTRACT CRIME TORT
- 9. Mental Element in Tort In many cases of torts the mental element is relevant to affix the liability. For example in torts like assault, battery, malicious prosecution, state of mind of the person is relevant. There are certain other areas where the mental element is irrelevant. In such cases the liability arises even without intention. For example in torts like conversion, defamation, vicarious liability mental element is irrelevant Malice in law: It means a willful act done without legal excuse of justification. A wrongful intention is presumed in case an unlawful act is done without just excuse. [Smt. S.R. Venkatraman v. Union of India, AIR 1979 SC 49] Malice in fact: It means evil or improper motive. When the defendant does any act with improper motive, ill-will or maliciously then it is called malice in fact, Generally malice in fact is irrelevant in the law of torts.
- 10. General Defenses When an action is brought in tort, the defendant may avoid his liability by taking several defenses. Defenses can be categorized into two categories:- General defenses Specific defenses Specific defenses are specific to certain kind of torts while General defenses are common to several torts.
- 11. Volenti non fit injuria It is also known as defence of consent. When a person consents to the infliction of certain harm be cannot bring an action for the loss or harm. This is based on the principle that every man is best judge of his own interest and if he voluntarily agrees to suffer any harm then he will not be allowed to complain. The consent to suffer harm may be express or implied. In Hall v. Brooklands Auto Racing Club, there was a motor race going on and two cars collided. As a result of collision one of the car was thrown amongst the spectator. The spectator was injured. It was held that the plaintiff impliedly took the risk of the injury. In Padmavati v. Dugganaika, two strangers took lift in a jeep. Suddenly one of the bolts fixing the wheel of the jeep gave way and jeep toppled. It was held that driver or master could not be held liable because two strangers voluntarily got into jeep and hence principle of volenti non fit injuria will apply and secondly it was sheer accident.
- 12. Essential conditions Following are the essential conditions to invoke the defence of volenti non fu injuria 1. Consent should be free: The consent should not be obtained from fraud, force, coercion, undue influence etc. 2. Mere knowledge is not enough: In order to successfully plead this defence the defendant has to prove that:- a. The plaintiff was aware of the harm. b. Knowing the same he agreed to suffer it. The mere knowledge of the risk (scienti non fit injuria) is no defence. Merely because the plaintiff knew that there is a harm that does not mean he has consented to suffer it. In Smith v. Charles Baker and Sons (stone quarry case), plaintiff was employed by the defendant in a stone quarry. Large chunks of rocks were being conveyed from one side to another by help of cranes. One of the stone fell an injured the plaintiff working there. It was held by the court that there is a mere knowledge of risk and there was no consent. Therefore, maxim volenti non fit injuria was not made applicable.