Tort - Tortum

Twisted - behaviour Society

Jimha - Sanskrit - fraudulent

conduct

Everyone - behave particular

way - deviated tort
Uncodified legal rules
Developed by judicial
precedents - judge made law
Purpose ? Ubi just ibi remedium - any right trangressed -
there must be way to compensate it/ restore it

where there is right there is remedy = compensation

Defamation - harming reputation

Trespass - Unauthorized entry
Nuisance - Causing annoyance
In tort the plaintiff wins his case only when he proves
as to what particular tort defendant has comitted
against him examine
 Theory 2 - Pigeon Hole Theory
Theories of tort Thinker - Salmond, Glanville Williams

Law of tort - Wrong done by someone - tort

Premise - Recognized number of torts - outside which
committed
no liability
Recognize general torts
Rationale - When offence itself not recognised then
how punishment
Thinker - Winfield, Pollock

Theory - tort law consist - net set of pigeon holes -

Premise - All injury done - person - tort -
each containing specific tory - assualt, battery,
unless lawful justification
negligence - defendant wrong/ act do not fit in any
Unjustified harm - tort hole - then no tort
Advantage - wide in scope- assaults,
battery, slander, negligence - no name Disadvantage : Limited in scope , static no scope for
at all improvement
Allow scope for growth - accommodate Chances of injustice - merely not fit in - wrong left out
- new tort - growing tree - not able to forsee - incapacity lisecene to do wrong
Law of tort is based upon a fundamental general principle
that it is wrongful to cause harm to other persons in the
absence of some specific ground of justification of excuse
examine
 Definition of Tort: Salmond- “It 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
other merely equitable obligation.

Ingredients
Tort is civil wrong - Initiation, procedure,
evidence, punishment - imprisonment /
compensation
Remedy - unliquidated damages - not
predetermined damages
Not breach of contract or breach of trust
Criticism
Incomplete definition
What is civil wrong - not defined
Tort contain criminal offence too - viz,
defamation, trespass etc -making
criminal wrong to have civil remedy
When civil wrong arise - not given
Other remedy of torts - self help -
injunction x mentioned
“It 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 other merely
equitable obligation.
 All torts are civil injuries
but all civil injuries are not
tort - Explain the above
sttament
 Winfield | Tortious liability arises from the breach of a duty
primarily fixed by the law: such duty is towards persons generally
and its breach is redressible by an action for unliquidated damages.

Criticism - Salmond - when civil wrong arise - Winfield gives it

Nature of suty - towards persons generally - distinguished from contract
Duty primarily fixed by law - not paries - individuals cannot create tortious
liability - although tort is civil wrong ( private wrong )
As individual cannot create it individual cannot negate it too - once violated
remedy must be made
Example : Doc - no agreement to treat negligently - patient - cannot sue doc
Rememdy - Unliquidated damages
Criticism
Fail to distinguish from other branches of law - lacks
clarity
Vague definition - towards persons generally
- other remedy left out
UPSC QUESTIONS

Whenever there is a breach of duty there is a cause of action in

tort - Discuss

Duties in tort exist by virtue of the law itself and not dependent
upon the consent of the persons subjected to them - examine
Sir Frederick Pollock - ‘Tort’ is an act or omission (not merely the
breach of a duty arising out of a personal relation, or undertaken
by contract) which is related to a harm suffered by a determinate
person, giving rise to a civil remedy which is not an action of
contract.
‘The law of tort’s in civil wrongs is a collective name for the rules
governing many species of liability which, although their subject
matter is wide and varied have certain broad features in common,
are enforced by the same kind of legal processes that are subject
to similar exceptions.
 Fraser - Tort in an infringement of a right in rem of a private
individual giving a right of compensation at the suit of the injured
party.

Clerk & Lindsell’s Definition: A tort may be described as wrong

independent of contract, for which the appropriate remedy is common
law action

Limitation Act 1963 :Sec 2 (m) of the Limitation Act 1963 defines “Tort
means a civil wrong which is not exclusively a breach of contract or
trust.” This is quite similar to Salmond’s definition.
 TORTS BREACH OF CONTRACTS

Concept: Tort is deviation from normal behavior Breach of contract is deviation from terms and conditions of
contract agreed upon.
Nature : A tort involves violation of a right in rem, which
means duty in torts exists towards torts all persons A breach of contract involves violation of a right is personum,
generally. which means the duty in contract exists only as between the
parties who enter into the contract and cannot be enforced by or
against a third party.
Tort involves duty primarily fixed by law
Here the duty of the parties are fixed by the terms of contract
Remedy : Primary remedy for tort is unliquidated damages.
In Bhim Singh vs State of J K AIR 1986 - the plaintiff was Various remedy is available : specific performance of contract ,
awarded exemplary damages for violation of his rights restitution and compensation.
given by art 21.

Tort is committed when the legal right is violated

Breach of contract is occurs when contractual right is violated.

Relationship of parties: The victim and the offender will not

be related in any manner.
The offender and victim usually have a contractual relationship
The action in Tort damages are unliquidated because it is
difficult to visualise in advance the quantum or degree of In contract the damages are pre-determined and stipulated in the
damage caused to the plaintiff. terms of the contract itself.
 Tort Crime

Concept - Deviation from normal behavior - Crime involves serious deviation such as murder,
comparatively less than crime rape, kidnap etc

Nature: same from violation of right in rem -

Nature - Although arise from violation of
crime against society dueM[ to its grievous
right in rem - offence against individual -
nature- public wrong.
private wrong
Intention -n Intention is the most important
Intention - irrelevant - wrongful act element in establishing criminal liability. A crime
violating legal right matters cannot happen without Mens Rea.

Initiation of proceedings - private - Initiation of proceedings : Since it is a public

individual - suit for damages wrong, the suit is filed by the govt.
KM
Remedy - Unliquidated damages , Remedy : punishment - fine - not
injunction, self help given to victim.
Compensation - recent trend

Civil form of justice - entire

nature - preponderance of Criminal form of justice - proof
probability - proof lesser beyond reasonable doubt
Principles
Injuria sine damno | Injury - legal right - x monetary loss

Principle : Whenever a legal right is violated, regardless of the monetary terms,

it is actionable.

CASE LAW | A person not being allowed to cast his vote (violation of his right to

vote, involves no monetary loss) is actionable # Ashby V. White

CASE LAW | When a MLA was detained illegally to prevent him from attending

the proceeding of legislature, his legal right to attend the proceeding is violated.

Therefore actionable as a tort # Bhim Singh V. State of J&K

 Damnum sine injuria | Monetary loss - violation of legal right.

Principle : Monetary terms cannot be ground for taking action defendant

unless there is violation of legal right.

CASE LAW | A well got dry, because of well dug in adjacent land by
defendant. No violation of legal right. Therefore not actionable # Mayor
of Bradford v/s Pickles

CASE LAW | Loss occurred to plaintiff, because of the rival school with
reduced tuition fees = is not actionable because that is “bona fide”
competition # Gloucester v Grammar School
Article 300- Tortious liability of State

Rudal Shah case - 14 years unlawful confinement

Bhim Singh v State - Not allowed to attend assembly

Absolute liability - MC Metha v UOI

Pravat Kumar Mukherjee Vs. Ruby General Hospital and ors 2005 -

Medicial Negligence case

State By Kumaraswamy Traffic ... vs Smt. Vani. A.K on 5 January, 2023-

Negligence used

S. 304 A IPC