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Law of Torts and Its Justification

Meaning of Tort

Tort is not a crime but a civil wrong;- mr X enters into Mr. y's house and use the swimming pool and exists. Here MR. x had not caused any loss/injury or any type of damage to Mr. y but has violated Mr. y's right to privacy, there it is said tha Mr. have committed Tort.

Law of Tort and law of crimes

Law of Tort Law of crimes
Civil suit is filled when a Tort is committed Criminal prosecution takes place
Violation of right. Duty imposed by law that one cannot violate one's right.
Tort effects the one who's right has been violated
Crime which took place may be with one particular person but effects the whole society. Crime effects public at large
Private wrong Public wrong
Individual who's right is violated (plaintiff) files suit against the one who have violated the right (defendant) in court. Public at large that is state files the case and is called prosecution against the one who committed the crime (accused)
Remedies; damages or compensation or both Remedies; punishment or imprisonment.
It is uncodified and unwritten. It is codified under IPC and CrPc

Law of Tort and Breach of contract

Breach of contract is also civil wrong where the plaintif files case and get damages but breach of contract is not a Tort.
Before understanding the difference between the two concepts some key terms should be understood, which are as follows:
  1. Liquidative damages
    Parties decide in advance at the time they are forming a contract.
    Eg; X and Y comes into a contract that, Xwill sell 100 scented candles for rupees 5000/- to Y and then both have agreed that if y is not able to pay money on time Y will give compensation to X and if X is not able to deliver the goods on time X will bear all the transportation charges and also will reduce the selling price.

  2. Unliquidated damages
    When parties are not under any contractual terms and therefore there is no damages decided prior or in advance. Court will decide the damages to be paid by the faulty.

  3. Privity of contract
    Third party cannot sue any of the two parties under the contractual terms.

Law of Tort Breach of contract
Unliquidative damages Liquidative damages
No concept is followed Privity of contract is followed
Duty imposed by law Duty imposed by the parties.

Eg; Mr. x was travelling in a train which met with an accident due to negligence of the driver.. negligence is covered under law of Torts and on the other hand Mr. x was under the contract with the railway authorities that if the train met with an accident due to any negligence on the part of the driver, the railway authorities will be liable and will pay for the damages or loss to Mr. x or his family. Therefore, it also includes breach of contract.

Elements of Tortious Act

Every wrongful act is not a Tort, To constitute law of Torts three elements must take place:
  1. Wrongful act
    Private right violation which are
    defamation (violation of right to good reputation),
    assault (violation of right to bodily safety and freedom),
    trespassing (violation of right to property)

  2. Legal damages to the plaintif
    Injuria Sine Damnum: injuries (violation of legal rights) without damages (loss of money or loss of comfirt). Injuria sine damnum can be sued under Tort.

    Ashby V. White[1]
    X goes to vote but the returning officers in election stops him t vote, where x have all the documents required but was prevented for giving a vote, although the candidate he wants to vote wins the election. X files case against the returning officer saying that he was not able to exercise his right to vote.

    Defendant that is the officer said, there would be no change even if the plaintif have exersied his right to vote, in his defence. Judgement: there were no damages occurred or beared by the plaintiff as the candidate he wants to elect had win the election but the returning officer have violated plaintif's right to vote and therefore committed Tort and hence plaintiff will be given remedy or unliquidative damages.

    Damnum Sine Injuria: damages without injuries. Damnum sine injuria cannot be sued under Tort.

    Usha Ben V. Bhagyalaxmi Chitra Mandir[2]
    In 1970s a film was released ‘Jai Santoshi Maa'. X filed case and demanded that ban should be imposed on the film's release because the film has hurt his emotions and religion. It was said that in the film the goddess of hindu religion has been potrayed wrongfully due to which he has been hurt.

    Judgement: court said that X may have suffered damages due to the movie but her no legal right has been violated and therefore no legal remedies were given.

    Gloucester Grammar School Case[3]
    A school teacher resigns and started a new school infront of the previous one due to which the previous school reduces its fees as the competition increases. The first school incurred loss due to low fees and files case on the ex-employee who has started the new school.
    Judgement: court held that the previous school had incurred damages but no legal rights were violated. Hence, no remedies would be given.

  3. Legal remedy
    Ubi Jus Ibi Remedium: Where there is right there is a remedy.
    Example:- if a citizen trespasses, one can sue and ask for remedies bu if a police officer came to a property and exercise his/her duty for investigation the owner of the property cannot sue and asks for the remedy.

    Example:- if a person is walking on railway track and met with an accident with a train the he cannot file a case against railway authorities because he was not having any right to walk on the tracks.

    Justification Of Torts
    Volinti Non Fit Injuria:
    it a maxim which means ‘to a willing person, injury is not done' that is willingness does not make injury. It is a common law doctrine which states that if someone willingly places themselves in a position where harm might result then they are not able to claim against the other party in Tort.

    Example:- if a person buys ticket to watch a cricket match in stadium. while sitting on the stands watching the match if he is hit by the ball and gets injured then he will not be able to take any remedies under the law of Torts because he has already given his consent to such accident by buying the tickets.
    Therefore, damages suffered in such cases are suffered by consent and hence no Tortious act took place.

Essentials of volinti non fit injuria

  1. Knowledge a party entering to a contract should have the full knowledge about risks involved in the act under contractual terms.
    Smith V. Charles Baker[4]
    The plaintiff was employed by railway contractors to drill holes in a rock, a crane worked by the plaintiff which lifts stones. The crane lifted stones and swung over the appellant's head. A stone having fallen from the crane without any warning being given, appellant (smith) was seriously injured and filed a case against his employer.
    Judgement: it was held that plaintiff had partial knowledge but not the full knowledge therefore, defendant was held liable and the maxim does not applied in the case

  2. Consent a party entering to a contract should have their own consent. Consent can be either expressed or implied.

    Express consent: it can be either return or oral but should be specified. A permission for something that is given specifically either verbally or in writing will constitute an expressed consent.

    Implied consent: an assumption of permission that is presumed from action on the part of the individual.
Hall V Brookland Racing Club[5]
Plaintiff went to watch car racing. During the race there was collision between two cars as a result one of the car hit plaintiff and injured him. Plaintiff filled suit against racing club.
Judgement: court held that defendant was not liable for injury caused to plaintiff because the plaintiff have voluntarily consented.

  1. Ashby v White (1703) 92 ER 126
  2. Ushaben v. Bhagyalaxmi chitra mandir AIR 1978 Guj 13, (1977) GLR 424
  3. Gloucester grammar school case (1410) YB 11 Hen IV, fo. Pl. 201, 23
  4. Smith v Baker & Sons [1891] AC 325
  5. Hall v. Brooklands Auto Racing Club (1933) 1 KB 205
Written By Saloni Aggarwal

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