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The term ‘Torts’ is found in Common Law systems for a civilly actionable harm or wrong, and for the branch of law dealing with liability for such wrongs. It has been derived from the Latin word ‘Tortum’, which means ‘to twist’. It means a conduct which is not straight or lawful, on the other hand twisted, crooked or unlawful.
Tort covers a wide range of issues that are pertinent to various aspects of everyday life such as the working environment, neighbor disputes and injuries sustained on another’s premises. Example:
Where the person injures the reputation of others, he causes ‘Tort Of Defamation’. Where he interferes with the possession of land of some other person, he causes ‘Tort Of Trespass’. Similarly, ‘Tort Of Deceit’ is caused when a person defrauds others.
It is a law of obligations, imposing legal obligations to refrain from causing harm to another and, if harm is done, he must repair it or compensate for it. The function of tort is to shift loss sustained by one to the person who is deemed to have caused it or has been responsible for its happening, and in some measure to spread the loss over an enterprise or even the whole community.
Historically, there was no general principle of tortious liability, but the King’s Courts gave remedies for various forms of trespass, for direct injuries, and later allowed an action on the case for harm indirectly caused. Other forms of harm later became redressible, e.g., Libel And Slander, and distinct forms of action developed to redress particular kinds of harm.
Meaning and definition Of Torts
Tort is a branch of civil law which is not exclusively a breach of contract or breach of trust. It is a civil wrong which governs the infringement of a right in rem of a private individual, and provides damages in the form of compensation at the suit of the injured party. Such compensation is not fixed by the court of law and is in the form of unliquidated damages.
According to Winfield, “Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”
According to Clerk & Lindsell– “A tort may be described as wrong independent of contract, for which the appropriate remedy is common law action.”
The concepts, rules, and principles of tort law are usually spelled out in opinions written by judges in the course of resolving particular lawsuits. They are also contained in statutes and agency regulations. In tort law, the principle of vicarious liability applies, and joint tortfeasors are all liable for the whole harm caused, with right if relief inter se. If the plaintiff was wholly or partly to blame for the damages, the compensation may be reduced in proportion to the degree in which he was at fault.
Thus, Tort is the breach of a duty primarily fixed by law which results in injury to another and for which civil action for unliquidated damages, injunction, specific restitution of property, or even self-help, as the case may be, is maintainable.
Essentials Elements of a valid Tort
To constitute a valid tort, it is essential that the following conditions are satisfied:
It is Civil Wrong
Tort belongs to the category of civil wrongs, where the injured party (plaintiff) institutes civil proceedings against the wrongdoer (the defendant). In civil wrongs, the main remedy is damages. The plaintiff is compensated by the defendant for the injury caused to him by the defendant.
However, if an act has resulted in two wrongs causing both crime and tort at the same time. In such a case both the civil and the criminal remedies
would concurrently be available. There would be civil action requiring the defendant to pay compensation as well as a criminal action awarding punishment to the wrongdoer.
Damages in the case of a tort are unliquidated in nature. It is generally not possible to undo the harm caused by the commission of a tortious act, thus money compensation is given to satisfy the injured party. In tort law, compensation has not been specifically determined, and has been left to the discretion of the court,
There is no possibility of any such predetermination
of damages by the parties in the case of a tort, because the parties are not known to each other until the tort is committed and moreover, it is difficult to visualize beforehand the quantum of loss in the case of a tort. Thus, the damages to be paid are left to be determined at the discretion of the court.
Act or Omission
In order to constitute a tort there should be a wrongful act. Such an act should not be beyond human control. It can be an act of omission or that of commission. The act may have an intention or motive or may arise due to negligence or recklessness of a person.
When there is a legal duty to do some act and a person fails to perform that duty, he can be made liable for such omission. Example- Where
the Municipal Corporation, fails to keep proper repairs of a clock tower in the heart of the city, which falls and results in the death of a number of persons, the Corporation would be liable for its omission to take care in the matter..
Legal Damage or injury
In order to constitute a valid tort, the plaintiff has to prove that there has been legal damage caused to him. Unless there has been violation of a legal right, there can be no action under law of torts. If there has been violation of a legal right, the same is
actionable whether, as a consequence thereof, the plaintiff has suffered any loss or not. This is expressed by the maxim “Injuria sine damno.”
Similarly, when there is no violation of a legal right, no action can lie in a court of law even though the defendant’s act has caused some loss or harm or damage to the plaintiff. This is expressed by the maxim ‘Damnum sine injuria’. Thus, to constitute a valid tort, there must be violation of some legal right of the person, irrespective of the damage caused.
Objectives Of Torts Law
The following are the objectives of the law of tort as follows:
To Provide Compensation
Torts being a civil law, its objective is to provide compensation to the victim for the injury and damage caused. Such compensation are not primarily fixed by the Court of law, rather they are unliquidated. Tort is the means whereby issues of liability can be decided and compensation assessed and awarded.
Protection of interests
The law of tort also seeks to protect a person’s interests in land and other property, his or her reputation. Various torts have been developed for these purposes. For example, the tort of nuisance protects a person’s use or enjoyment of land, the tort of defamation protects his or her reputation, and the tort of negligence protects the breaches of more general duties owed to that person.
It has been suggested that the rules of tort have a deterrent effect, encouraging people to take fewer risks and to conduct their activities more carefully, mindful of their possible effects on other people and their property. This effect is reflected in the greater awareness of the need for risk management by manufacturers, employers, health providers and others which is encouraged by insurance companies.
The deterrent effect of tort is less obvious in relation to motoring through the incentives to be more careful are present in the insurance premium rating system.
An element of retribution may be present in the tort system. People who have been harmed are sometimes anxious to have a day in court in order to see the perpetrator of their suffering squirming under cross-examination. This is probably a more important factor in libel actions and intentional torts than in personal injury claims which are paid for by insurance companies.
In any event, most cases are settled out of court and the only satisfaction to the claimant lies in the knowledge that the defendant will have caused considerable inconvenience and expense. The claimant also risks financial loss if the case is decided against him or her and this is a factor to be weighed in the balance when retribution is sought.
Tort provides the means whereby a person who regards him or herself as innocent in a dispute can be vindicated by being declared publicly to be in the right’ by a court. However, again, it must be noted that many cases never actually come before a court and the opportunity for satisfaction does not arise.
Tort is frequently recognised, rather simplistically, as a vehicle for distributing losses suffered as a result of wrongful activities. In this context loss means the cost of compensating for harm suffered. This means re-distribution of the cost from the claimant who has been injured to the defendant, or in most cases the defendant’s insurance company. Ultimately, everyone pays insurance or buys goods at a higher price to cover.
It may, however be recognised that the law of torts is not stagnant but is growing. The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all Common Law countries, to recognize as worthy of legal protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going
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