BASICS

OF

LAW

OF

TORT

TORTS DEFINITION BY WINFIELD : --- TORTIOUS LIABILITY ARISES FROM THE BREACH OF A DUTY PRIMARILY FIXED BY LAW: THIS DUTY IS TOWARDS PERSONS GENERALLY AND ITS BREACH IS REDRESSIBLE BY AN ACTION FOR UNLIQUIDATED DAMAGES. . TORTS DEFINITION BY S 2 (M) OF LIMITATION ACT, 1963 :---- TORT IS A CIVIL WRONG WHICH IS NOT EXCLUSIVELY A BREACH OF CONTRACT OR BREACH OF TRUST.. TORTSS DEFINITION BY SALMOND: ---- IT IS A CIVIL WRONG FOR WHICH THE REMEDY IS A CIVIL LAW ACTION FOR UNLIQUIDATED DAMAGES AND WHICH IS NOT EXCLUSIVELY THE BREACH OF CONTRACT OR THE BREACH OF A TRUST OR OTHER MERELY EQUITABLE OBLIGATION. . TORTS DEFINITION BY FRASER : ---- IT IS AN INFRINGEMENT OF A RIGHT IN REM OF A PRIVATE INDIVIDUAL GIVING RIGHT OF COMPENSATION AT THE SUIT OF THE INJURED PARTY. . TORTS DEFINITION BY CLERK AND LINDSELL :----- TORT MAY BE DEFINED AS A WRONG INDEPENDENT OF CONTRACT FOR WHICH THE APPROPRIATE REMEDY IS COMMON LAW ACTION.. TORTS DEFINITION BY FREDRICK POLLOCK : ---- THE LAW OF TORTS IN CIVIL WRONG 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 PROCESS AND ARE SUBJECT TO SIMILAR EXCEPTION.. AIMS OF THE LAW OF TORT : --------------TORT IS CONCERNED WITH THE ALLOCATION OF RESPONSIBILITIES FOR LOSSES WHICH ARE BOUND TO OCCUR IN OUR SOCIETY. TO IMPOSE UPON THE DEFENDANT AN OBLIGATION TO DISGORGE THE PROFITS HE HAS MADE FROM HIS WRONGDOING, WHETHER OR NOT THE CLAIMANT HAS SUFFERED ANY LOSS. TO OBTAIN DECLARATION OF RIGHTS (in case of some claims for trespass to land). TO PROVIDE CORRECTIVE JUSTICE AND DISTRIBUTIVE JUSTICE. TO PROVIDE UNLIQUIDATED DAMAGES IN FORM OF COMPENSATION GENERALLY. TO REDRESS THE WRONG DONE.

+ CORRECTIVE JUSTICE

PRINCIPLES OF

PURPOSE OF CORRECTIVE JUSTICE IS TO CORRECT THE WRONG DONE. LAW OF TORT IS MAINLY BASED ON THE CONCEPT OF CORRECTIVE JUSTICE. Aristotle defined "corrective" or "rectificatory" justice as "Justice in transactions." That's a good place to start. As its name indicates, corrective justice has a rectificatory function. By correcting the injustice that the defendant has inflicted on the plaintiff, corrective justice asserts a connection between the remedy and the wrong. From the perspective of corrective justice, a court justice ensouled in Aristotles beautiful formulation

does not treat the situation being adjudicated as a morally neutral given and then ask what is the best course for the future all things considered. Rather, because the court aims to correct the injustice done by one party to the other, the remedy responds to the injustice and endeavors, so far as possible, to undo it. This rectification operates correlatively on both parties. The central feature of a system of liability is that any liability of a particular defendant is simultaneously a liability to a particular plaintiff. In holding the defendant liable to the plaintiff, the court is making not two separate judgments (one that awards something to the plaintiff and the other that coincidentally takes the same from the defendant), but a single judgment that embraces both parties in their interrelationship. Each partys position is intelligible only in the light of the position of the other. The defendant cannot be thought of as liable without reference to a plaintiff in whose favor such liability runs. Similarly, the plaintiffs entitlement exists only in and through the defendants correlative obligation. The corrective justice approach attempts to discern the normative character of liability as a familiar practice within which justification has a pervasive role. Corrective justice takes the justificatory ambitions of this practice seriously by focusing on the laws internal normative dimension. With its eye fixed on the institutions through which the practice unfolds and on the reasoning that expresses the distinctive mode of justification within a liability regime, it focuses on the
structure of the relationship between the two parties. Because the liability of the defendant is always a liability to the plaintiff, correlativity ranks as the most abstract formulation of that structure. Corrective justice thus holds the practice of liability to the normative implications of liabilitys own correlative structure.

PRINCIPLE OF DISTRIBUTIVE JUSTICE

THE PRINCIPLE OF DISTRIBUTIVE JUSTICE IS EQUAL DISTRIBUTION OF RESOURCES ; EQUAL DISTRIBUTION OF RESOURCES AMONG EQUALS. IT IS FAIR AND JUST IN CASES WHERE LAW IS VERY STRINGENT. ITS BASIC PURPOSE IS TO DISTRIBUTE THE BURDEN.

Distributive justice concerns what some consider to be socially just with respect to the allocation of goods in a society. Thus, a community in which incidental inequalities in outcome do not arise would be considered a society guided by the principles of distributive justice. Allocation of goods takes into thought the total amount of goods to be handed out, the process on how they in the civilization are going to dispense, and the pattern of division. Civilizations have a narrow amount of resources and capital; the problem arises on how the goods should be divided. Distributive justice considers the distribution of goods among members of society at a specific time, and on that basis, determines whether the state of affairs is subjectively acceptable. For example, someone who evaluates a situation by looking at the standard of living, absolute wealth, wealth disparity, or any other such utilitarian standard, is thinking in terms of distributive justice. Distributive justice could be considered a means that addresses the burdens and benefits to some norm of equality to members. The definition of distributive justice has stayed constant, compared to other concepts in macro marketing and social economics.

BASIS OF TORTIOUS LIABILITY

THE GENERAL BASIS OF TORTIOUS LIABILITY IS ------- BREACH OF DUTY

EXPANDING IT CAN BE SAID THAT UNLESS THERE IS A BREAVH OF LEGAL DUTY NO TORT CAN ARISE. ONE OF THE FOREMOST REASONS FOR THE TORT IS THAT PEOPLE VIOLATE LAW BY MAKING A BREACH OR VIOLATION OF LEGAL DUTY.

TORT V CRIME
CRIMINAL PROCEEDINGS ARE BROUGHT UP BY THE STATE WHEREAS TORT PROCEEDINGS ARE BROUGHT BY THE PERSON ( PLAINTIFF ). CRIMINAL PROCEEDINGS ARE BROUGHT IN FOR THE PUNISHMENT GENERALLY AND TORT PROCEEDINGS ARE BROUGHT IN FOR COMPENSATION GENERALLY. TORT IS LESS SERIOUS AND CRIME IS MORE SERIOUS. TORT IS A PRIVATE WRONG GENERALLY BUT CRIME IS A WRONG TOWARDS STATE. IN TORT BOTH THE PARTIES GENERALLY DONT KNOW EACH OTHER AT THE TIME OF COMMITTING TORT WHEREAS IN CRIME BOTH THE PARTIES KNOW EACH OTHER GENERALLY.

TORT V CONTRACT

TORT LAW IS FOR UN LIQUIDQTED DAMAGES WHEREAS CONTRACT LAW IS FOR LIQUIDATED DAMAGES. TBR

UBI JUS IBI REMEDIUM

THE ABOVE PHRASE MEANS ---------------------WHERE THERE IS A RIGHT THERE IS A REMEDY. HERE WHEN WE TALK ABOUT RIGHT AND REMEDY WE ARE TALKING IN LEGAL TERMS, ie , LEGAL RIGHT AND LEGAL REMEDY. The principle that where one's right is invaded or destroyed, the law gives a remedy to protect it or damages for its loss. Further, where one's right is denied the law affords the remedy of an action for its enforcement. This right to a remedy therefore includes more than is usually meant in English law by the term remedy, as it includes a right. ALL TORTIOUS CASES ARE BASED ON THE ABOVE LATIN MAXIM.

INJURIA SINE DAMNUM

THE ABOVE PHRASE MEANS -------------------LEGAL INJURY WITHOUT DAMAGE IT MEANS A LEGAL INJURY IS CAUSED WITHOUT ACTUAL LOSS OR DAMAGE. CASES TO BE REFERRED : -------

ASHBY v WHITE (1073) 2 LR 938 BHIM SINGH v STATE OF JAMMU AND KASHMIR, AIR 1986 SC 494

DAMNO SINE INJURIA

THE ABOVE PHRASE MEANS -------------DAMAGE WITHOUT LEGAL INJURY IT MEANS ACTUAL DAMAGE OR LOSS IS CAUSED WITHOUT LEGAL INJURY. CASES TO BE REFERRED : --------

GLOUCESTER GRAMMAR SCHOOL CASE (14190 V.B. HILL 11) MAYORFORD V PICKLES

A NO OF OTHER CASES TO BE REFERED ------------ RUDAL SHAH v STATE OF BIHAR, AIR 1983 SC 1086 SAHELI v COMMISSIONER OF POLICE, DELHI AIR 1990 SC 513 MAYOR OF BROADFORD CORPORATION v PICKLES (1895) AC 587 USHA BEN v BHAGYA LAXMI CHITRA MANDIR, AIR 1978 GUJ.

SOME FACTS TO BE REMEMBERED: --- LAW OF TORT IS VICTIM ORIENTED. JUSTICE IS THE PRIMARY DUTY OF THE STATE. LAW OF TORT IS A JUDGE MADE LAW THAT MEANS LAW BAESD ON PRECEDENTS. Exception MOTOR VEHICLES ACT. STARE DECISIS LAW OF PRECEDENTS SOME LAWS ARE STRUCK DOWN BY SUPREME COURT BUT STILL EXIST IN INDIAN CONSTITUTION NOTIONALLY OBLITERATED. RUDAL SHAH v STATE OF BIHAR WAS THE 1ST CASE IN WHICH SUPREME COURT AWARDED DAMAGES. Sic utre tuo et alience non leadus YOU CAN ENJOY YOUR FREEDOM WITHOUT ENROACHING OTHERS FREEDOM. ( your freedom ends where my nose begins ) : IT IS THE FOUNDATION OF LAW OF TORT AND ARTICLE 19. WINFIELD : - IS EVERY WRONGFUL ACT FOR WHICH THERE IS NO JUSTIFICATION IS TORT ? SALMOND :- IS IT A POOL OF CERTAIN WRONGS BEYOND WHICH THERE IS NO LIABILITY ? SALMOND IS IN FAVOUR OF DEFENDANT AND WINFIELD IS IN FAVOUR OF ACCUSED. WHEN SEARCHING FOR LAW TWO THINGS TO BE CONSIDERED :TEST ONE PRECEDENT OR STARE DECISIS. TEST TWO PURSUING THE COURT TO CREATE NEW INTERESTS. WHY LAW OF TORT COULD NOT DEVELOP IN INDIA - 1. UNAWARENESS OF RIGHTS OF ONESELF. 2. TOLERANCE CAPACITY OF INDIANS. 3. DUTY CONSCIOS SOCIETY. 4. LET IT HAPPEN ATTITUDE. BURDEN OF PROOF IN LAW OF TORT IS ON PLAINTIFF. RIGHT IS LEGALLY PROTECTED INTEREST OF HUMAN BEINGS. IN TORT LAW ONE CAN CLAIM FOR SUFFERINGS, PAIN AND LOSS OF AMENITIES. ADVERSE POSSESSION IS FORCIBLY ACQUIRING SOMETHING ILLEGALLY.

BAILMENT IS A TYPE OF CONTRACT IN YOU ARE THE OWNER OF THE SOMETHING BUT IT IS UNDER SOMEBODY ELSES POSSESSION. MAIN PURPOSE OF JUSTICE IS TO REDRESS THE WRONG. GENERAL JUSTICE IS SOMETHING IN WHICH YOU ARE BOUND TO FOLLOW THE LAW WHETHER GOOD OR BAD. PLEDGE IS MOVABLE AND MORTGAGE IS IMMOVABLE. CIVIL LAW IS BASED ON BALANCE OF PROBABILITIES. CRUSHING LIABILITY IS THE MAXIMUM COMPENSATION AWARDED. SOMETIMES WE KNOW THE CONSEQUENCES OF AN ACT WE DONT INTEND TO DO IT THUS GIVING RISE TO THE PHENOMENA CALLED ---SUBJECTIVE RECKLESSNESS. WHEN THE LIABILITY WILL BE FIXED BY LAW IT WILL BE A STATUTORY PROVISION. PARTICULAR JUSTICE IS FAIR AND JUST AND BASED ON RATIONALITY. WHEN THE LAW IS VERY HARD IT CAN BE DILUTED TO A CERTAIN EXTENT. STATUS QUO ANTE ---- TO RESTORE THE SITUATION AS IT WAS BEFORE THE HARM OR WRONG DONE. COLEMAN PROPOUNDED THE RECTIFICATORY JUSTICE. NO FAULT LIABILITY WAS PROPOUNDED IN DONOUGHE v STEVENSON.