Documentos de Académico
Documentos de Profesional
Documentos de Cultura
C J Rawandale,
Associate Professor
1.1. A wrongful act violation of duty imposed by law duty which is owed to
people generally (in rem)
The word ‘tort’ is the French equivalent of the English word ‘wrong’ and
Roman term ‘delict’.
It is derived from the Latin word ‘Tortum’ which means ‘twisted’ or ‘crooked’
act, i.e. a deviation from straight or right conduct.
“the overall object of tort law is to define cases in which the law may justly
hold one party liable to compensate another”.
Salmond
“A tort is a 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, or the breach of other merely equitable obligation”.
Winfield
“Tortious liability arises from the breach of duty primarily fixed by law; this
duty is towards persons generally and its breach is redressible by an action for
unliquidated damages”.
A person has choice in fulfilling his duty whereas liability arises independent
of one’s choice.
Salmond
“A person is any being whom the law regards as capable of rights and duties”.
Erray
These two definitions show that the concept of personality is linked with the
conception of right.
Holland defines a natural person as “such a human being as is recognized by the law as
capable of rights and duties- in language of Roman law is having a status”.
II. Legal Person: - Legal persons are beings, real or imaginary, to whom the law
attributes personality by way of fiction, when there is none in fact.
Salmond
“Legal person is any subject matter other than human beings to which law attributes
personality”.
In Walker v. Great Northern Railway, (1890) 28 LR Ir. 69, [Irish Case] the
infant claimed 1.030 Pound as damages from the railway company. It was held
that the infant could not maintain an action. (Ireland)
Section 113 of the Indian Succession Act (Bequest to person not in existence
at testator’s death subject to prior bequest)
Section 11 of the IPC has not define the term “person’ in a narrow and
technical sense but has given a wider meaning to the term to include both a
natural person (a human being, whether a man or a woman) and an artificial or
juridical person.
In Jabbar v. State, AIR 1966 All 550 (593) the court held that a child in the
womb whose body has sufficiently developed to have a separate identity of its
own is a person.
This unique and interesting case has recently been decided through a landmark
judgment of the Maharashtra State Commission in this case. The judgment
was delivered on 6 November, 2006 by Justice B.B. Vagyani on behalf of the
bench presided over by him along with members P.N. Kashalkar and Swati
Lele.
2. To make one liable under law of torts, one must prove fault, negligence or
wrongful intent on the part of the defendant. Generally speaking, intention
does not form an essential element to make one liable under Law of Torts.
On the other hand, the criminal proceedings against the wrongdoer are not
brought by the injured party but by the State. In case of the crime, even though
the immediate victim is an individual, the criminal wrong is considered to be a
public wrong i.e. a wrong against the State.
4. In case of tort, the plaintiff may agree to compromise with the tort-feasor
and withdraw the suit filed by him.
Exception: Section 357 Cr.P.C. 1973 even a Criminal Court while passing
judgment may order that the injured party may be paid compensation out of
the fine imposed.
Sometimes, the same set of facts may constitute both a tort and a crime. Such
wrongs are called as “Felonious Torts”.
The civil and criminal remedies in such a case are not alternative but are
concurrent. E.g. Defamation, Negligence, Nuisance etc.
In a contract, the duty is based on the privity of contract and each party owes
duty only to the other contracting parties. Duties imposed by law under law of
torts are not towards any specific individual or individuals but they are
towards the world at large.
2. If I leave my horse with my neighbour for one week and go out and the
neighbour allows the horse to die of starvation, there is breach of contract
inasmuch as the bailee has failed to exercise due care in the matter, and the
bailee has also committed tort of negligence.
One must remember that the plaintiff cannot claim the damages twice
over. He has a choice either to sue for the breach of contract or for the
commission of tort.
A went to a restaurant with a woman friend and bought one bottle of ginger
beer manufactured by the defendants. The woman consumed part of the
contents but when the remainder was poured into the glass, she observed the
decomposed body of a snail in it. The ginger beer bottle, being made of dark
opaque glass and sealed with metal cap, the presence of snail could not have
been observed earlier.
The woman brought n action against the manufacturer for negligence and
alleged that by taking a part of the contaminated drink, she had contracted
serious illness.
There was a contract between Lufthansa, a German Airlines and Hotel Oberoi
Inter-Continental of Delhi for the stay of the crew of Lufthansa as guests in the
hotel. The plaintiff Klaus Mittelbachert, a co-pilot in Lufthansa stayed in the
hotel for a few days. During his stay, as a plaintiff took a dive in a swimming
pool in the hotel, due to defective design of the swimming pool, his head hit
the bottom of the pool and he received serious head injuries. As a consequence
of that, he was paralysed and continued in agony for 13 years before he died.
In an action for damages by the plaintiff, one of the defences pleaded was that
he was a stranger to contract, as the contract for stay was made between the
employer, i.e. Lufthansa and the hotel. The plea was rejected.
Due to hazardous nature of the premises, the rule was absolute liability was
applied and the defendants were required to pay exemplary damages
amounting to 50 lac rupees.
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 (injuria), i.e. violation of
a legal right vested in the plaintiff.
In order to make a person liable for a tort, he must have done some act which
he was not expected to do, or, he must have omitted to do something which he
was supposed to do.
One must note that the wrongful act or a wrongful omission must be one
recognized by law. If there is a mere moral or social wrong, there cannot be a
liability for the same.
Municipal Corporation, having control of a clock tower in the heart of the city
does not keep it in proper repairs and the falling of the same results in the
death of a number of persons, the Corporation would be liable for its omission
to take care in the matter.
In order to be successful in an action for tort, the plaintiff has to prove that
there has been a legal damage caused to him .
In other words, unless there has been violation of a legal right, there can be no
action under law of torts.
Injuria Sine Damno means violation of a legal right without causing any
harm, loss or damage to the plaintiff.
1. those torts which are actionable per se, i.e. actionable without the proof of
any damage or loss. E.g. Trespass to land is actionable even though no damage
has been caused as a result of the trespass;
2. the torts which are actionable only on the proof of some damage caused by
an act.
If a claimant is wrongfully detained against his will, he will have a claim for
substantial damages for wrongful imprisonment even if no consequential loss
was suffered upon the detention.
By the time the petition was decided by the Supreme Court, Bhim Singh had
been released, but by way of consequential relief, exemplary damages
amounting to Rs. 50,000 were awarded to him.
Gloucester Grammar School Case (1410) Y.B. Hill 11 Hen, 4 of 47, P.21,
36
The plaintiff contended that the film “Jai Santoshi Maa” hurt the religious
feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi, and Parvati
were depicted as jealous and were ridiculed and thus sued for a permanent
injunction against the defendants to restrain them from exhibiting the film.
It was observed that hurt to religious feelings had not been recognized as a
legal wrong. Moreover, no person has a legal right to enforce his religious
views on another or to restrain another from doing a lawful act, merely
because it did not fit in with the tenets of his particular religion.
The law of torts is said to be a development of the maxim ‘ubi jus ibi
remedium’.
In other words, whenever the right is violated the person whose right has been
infringed has remedy against the person who has violated it.
This principle explains about the right of an injured person to damage which
brings such wrongful act within the category of torts.
It should however be noted that the maxim does not mean that there is legal
remedy for every moral or politic wrong.