Basics of Tort law
- Legal Journey
- Jun 5
- 7 min read
Updated: Jun 14
Whenever a person has been a victim of a wrong, he/she files a suit. Generally, suits in law are of two types- Civil or Criminal. Tort law is the area of the law that covers most civil suits. In general, any claim that arises in civil court, with the exception of contractual disputes, falls under tort law. Defamation, accidents, defects in any product or service and many such things are covered under the Law of Torts.
“Ubi jus ibi remedium” which means, wherever there is a right, there exists a remedy in law for it. That means, if a right of a person has been violated, he/she can avail remedy as provided by law. On one hand, criminal law focuses on punishing the offenders and on the other hand, tort law focuses on making right the wrong.
The main focus of tort law is to provide compensation to victims who’ve suffered an injury. It is an uncodified law which means that there is no specific legislation for Tort. In this article, I will explore the in-depth meaning of tort, its essential components and landmark cases among other things.
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Meaning and Definition
A civil wrong is less serious in nature and the plaintiff files a suit for availing remedy. Originating from the Latin word- "Tortum", the word tort means twisted or crooked.
According to Salmond, a Tort is a civil wrong for which the remedy is a common law action for unliquidated damages. He expands this definition by adding that the definition is not exclusively the breach of a contract or trust or other equitable obligation. The fundamental philosophy behind the law of torts is based on the law of equity and justice and is distinct from crimes and breaches of contracts.
Similarly, according to the Limitation Act, 1963, Tort is defined under Section 2(m). It states that a tort means a civil wrong which is not exclusively a breach of contract or breach of trust.
A person committing a tort is called the tort-feasor and the misdoing/ wrong act is called the tortious act.
Essentials of a Tort
Wrongful act or Omission
Legal harm to another person
Legal remedy
These are the 3 elements of a tort that must exist in order to constitute a tort.
Wrongful Act or Omission
The act must affect the person in some way or it must affect his legal right. It’s important to note that an action does not arise from an immoral cause. The act that was not done or done in a wrong manner must be primarily fixed by law i.e. the duty must be fixed by law first. That means, if law recognizes an act to be wrongful, it shall define it as such. In this case, moral or religious duty and its omission is not considered. (Ex turpi causa non oritur actio). The landmark case under this is the case of Glasgow Corporation v/s Taylor 1992.
Legal harm to another person
The individual must have experienced actual or legal harm or loss as a result of the wrongdoing. Actual damages and unqualified damages are the two categories of damages. Action is only available for genuine damage. The two most significant legal concepts fall under this. A) Legal injury without harm is known as Injuria Sine Damnum. This indicates that there has been a legal right breach but no real harm or damage. This is subject to legal action. B) Damage without legal injury is known as damnum sine injuria. In other words, there has been harm but no legal harm. Despite actual loss, there is no violation of a legal right in this circumstance, hence no action is necessary.
Legal Remedy
The infraction must have a legal remedy in the form of a civil action seeking damages. "Where there is right, there is a legal remedy," or "Ubi Jus Ibi Remedium”. The case of Bhimsingh v. State of J&K is a well-known example of this principle. Without a legal remedy, legal damage does not exist. There must be a violation of the person's legal rights in order to get compensation or take action.
Types of Torts
Intentional Torts: These are when a person knowingly intends to cause harm to someone else in a physical or emotional way.
Strict and Absolute Liability Torts: Strict liability is when any person keeps hazardous substances on his land, if such substance escapes and causes harm/damage, he/she will be held responsible (Case- Rylands v/s Fletcher). Similarly, absolute liability is strict liability without exceptions. If any person is engaged in an inherently dangerous or hazardous activity and if any harm is caused to any person due to any accident which occurred during carrying out the hazardous activity, then such person will be held absolutely liable. Case- MC Mehta v/s Union of India.
Negligent Torts: This is the opposite of intentional torts. A negligent tort involves injuries caused by acts like driving while being distracted, failure to perform an obligation or causing harm to another unintentionally.
Defamation: Defamation is when a person’s reputation or standing is damaged due to words or written signs or gestures or permanent representation.
General Defences in Tort
Volenti Non-fit injuria: A person who knowingly risks danger cannot recover from the resulting injury. It means that those who consent to harm, suffer no harm. For this defence to apply, there must be free consent of the plaintiff and he/she must have voluntarily accepted the risk with full knowledge of the risk.
Vis Major: In this case, natural forces are at play. The event must be natural with no human force behind it. It should be unanticipated and an extraordinary course. It is also known as the Act of God.
Inevitable accident: In this defence, even if the person has taken due care to avoid a misdoing, it still happens, then that is a defence under tort law. When an unexpected injury that could not have been foreseen despite the defendant taking enough care is not anybody’s fault. Hence it is a defence under tort law.
Private Defence: When reasonable force is used by a person in order to protect their body or reputation, is known as private defence. A person is allowed to take necessary action to protect their person or their property in case of immediate danger.
Mistake: In law, mistakes are of two types. It can either be a mistake of law or a mistake of fact. While mistake of law is inexcusable, mistake of fact is a defence under the law of Tort
Necessity: In case of imminent necessity, if the defendant's actions were needed to prevent a greater harm or injury.
Statutory Authority: If a person is acting under the orders of a law or statute, it serves as a defence.
Remedies
• Judicial Remedies
When a party is aggrieved by some act or omission, they are entitled to certain remedies by law. The purpose of remedies is to compensate the injured party and to put a stop on future misconduct.
Damages: Damages are different from damage. Damages aim to restore the previous financial position of the plaintiff. They focus on reimbursing the losses suffered by the plaintiff due to the action of the defendant. Damages can be of two types-either punitive or compensatory. There is a concept called remoteness of damage. It states that the damage suffered by the plaintiff must be directly proportional to the defendant's actions, i.e., the act that the defendant did or omitted must have affected the plaintiff directly. The action and reaction must have a cause-and-effect relationship. Case- Re Polemis.
Injunction: This is an equitable remedy that is granted at the discretion of court. An injunction is a court order which basically restrains a person from doing or continuing to do an act. An injunction can be temporary or permanent, mandatory or prohibitory.
Specific Restitution of Property: Property of the plaintiff,i.e. the specific property is restored back to the owner. In cases of wrongful dispossession of one’s own property, he/she is rightfully entitled to restoration of such property.
• Extra-judicial remedies
Expulsion of Trespasser: If a person enters one’s land without permission or consent from the owner, the owner of the land has a right to remove that person themselves without using excessive force.
Re-entry on Land: In cases of unlawful occupance of one’s land by another, the owner has the right to go back and take such rightful possession in a peaceful manner.
Re-capture of goods: If a person’s goods or property is captured unlawfully, the owner of the goods/property possesses the right to re-capture such property.
Abatement: It means to remove or stop a nuisance by yourself. If something is causing trouble to another person which belongs to someone else’s land, he/ she can stop or remove such a thing by themselves.
Distress Damage Feasant: If another person’s animal or object has entered someone’s land and has caused damage, such an animal or object can be detained by the owner.
Conclusion
In civil jurisprudence, tort law is one of the most important aspects because it offers redressal for private and civil wrongs. It makes sure that the individuals who suffer harm are compensated or restored and the wrongdoers are held liable. Tort law has a very vast spectrum and it covers almost everyday things. It enforces civil responsibility and provides solutions to the aggrieved person.
Frequently Asked Questions
Q) What is the difference between Injuria Sine Damnum and Damnum sine Injuria?
A) Injuria Sine Damnum refers to a legal “injury without actual loss”, where action can be taken despite no physical or financial harm. Damnum Sine Injuria means “actual loss without violation of a legal right”, and no legal action lies in such cases.
Q) Can a tort arise from an immoral act?
A) No, Tort law does not recognize immoral or religious duties as the basis for a tort unless the act is legally defined as wrongful.
Q) What is the principle behind the defence of Volenti Non-fit Injuria?
A) Volenti Non-fit Injuria means “to a willing/consenting person, no injury is done”. If someone knowingly/voluntarily consents to a risk, they cannot later claim damages for the injury resulting from that risk.
Q) Who is a tort-feasor in tort law?
A) A tort-feasor is an individual who commits a tortious act that causes legal harm to another.
Q) How is the law of torts related to the principle of equity? A) Tort law is grounded in principles of equity and justice, aiming not to punish but to balance interests by compensating victims and holding wrongdoers civilly liable.
This Article is written by Tanaya Moholkar, a final year law student at Yashwantrao Chavan Law College, Pune.
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