Definition, Nature and Scope of Tort and important maxims

Introduction: –

Tort in Latin word means tortum. A tort is unliquidated damages. The tort French
word is wrong. It implies conduct that is twisted or wrongful. In Roman law, tort
corresponds to delict. The tort is a breach of a duty independent of any contract or
crime.

There are two types of wrongs: –

1)Civil Wrong

2)Criminal Wrong

1)Civil wrong is divided into two parts: –

1. a) Civil wrong which has no legal action.

2. b) Civil wrong which breaks legal action.

2)Criminal Wrong

Criminal wrong differs from civil wrongs. Criminal wrongs are behaviors that harm
society as a whole rather than one individual. When people violate the criminal law
there are generally sanctions that include fines.

Definition of Tort: –

1)John Salmond defines a tort as,” a civil wrong which the remedy is common for
unliquidated damages which do not breach of contract, breach of a tort, quasi-
contractual law.”
 2)Clerk and Lindsell defines a tort as,” a civil wrong independent of contract for
which the appropriate remedy is common law.”

3)Ratanlal and Dhirajlal define tortas,” a civil wrong, independent of contract for

which appropriate remedy is an action for damages.”

Nature of Tort: –

1)Tort is a civil wrong.

2)It is an infringement of a right in rem and not a person am.

3)Right is infringed by law independent of the consent of parties.

4)Right is fixed by law, independent of the consent of parties.

5)In England, the remedy for violation of such legal right is common law.

6)The remedy for violation of the right is compensation in terms of money damages.

Scope of Tort: –

Difference between Tort and Crime: –

                              TORT                                        CRIME

1.The wrongdoer must compensate the injured party. 1.The offender is punished by the State.

2.The suit is filed by the plaintiff. 2.Action is taken by the State.

3.Damages or compensation is given by wrongdoers. 3.In crime, it’s the rigorous punishment that is given.
 Difference between Tort and Contract: –

                                 TORT                                    CONTRACT

1.Tort is inflicted against the will of the parties. 1.Obligation is founded on the consent of the parties.

2.There is no purity between the parties. 2.There is purity between the parties.

3.Tort is unliquidated damages. 3.Contract is liquidated damages.

4.Motive is relevant. 4.Motive is not relevant.

DAMNUM SINE INJURIA: –

Damnum means damage in the ordinary sense which may be loss of money or
physical hurt, loss of health or life. Injuria means a legal injury that is a tortious act.
Sine means without act. Hence, the meaning of the maxim” Damnum Sine Injuria” is
damage without the infringement or violation of any legal injury where there is no
infringement of loss resulting from an act or omission will not give the act of
omission wrongful even if the loss is substantial and even irreparable damage thus
suffered in the absence of any violation of a legal right is known as Damnum Sine
Injuria.

“Damnum Sine Injuria” is actual without the infringement of any legal right no action
lies no suit of damage can be filed. For e.g., If A has a coaching class and his
neighbour B starts a new coaching class, A cannot bring legal action and yet A has
suffered substantial damage.

Gloucester Grammar School Case, in this case, the defendant a schoolmaster set up
a school that of a plaintiff with the result that the student from the plaintiff school to
flock the defendant school. The plaintiff sued the defendant for the loss. The Court
held that no suit could lie because bonafide competition can afford no ground for
action whatever damage it may cause.

INJURIA SINE DAMNUM: –

This maxim is the reverse of maxim Damnum Sine Injuria. This maxim is an injury
without damage. When there is a violation of legal right the person in whom the right
is wasted is entitled to bring an action and recover the damages although suffered no
actual harm. In such cases, it is necessary to show the actual loss and in such cases,
the law will presume damage. Thus, in the case of trespass, a mere wrongful act is
actionable. Every violation of private property however minute is a trespass and not
actual damage.

Ashby v. White, in this leading English case, the defendant a returning officer at a
voting booth, wrongfully refused to register a duly tendered vote of the plaintiff, who
was a qualified voter. The candidate for whom the vote was sought to be tendered
was, however, elected and no actual loss was suffered by the rejection of the
plaintiff’s vote. The Court held that the plaintiff had a right to vote and this legal right
was violated by the defendant.

RES IPSA LOQUITOR: –

The meaning of this maxim is that ‘the thing speaks for itself.’ In some cases, the
general rule of ruling affirmatively the defendant’s negligence is released by applying
the above maxim and in such cases when an accident takes place due to negligence of
the defendant, the plaintiff has to prove only the accident and nothing more. As there
would be a presumption of negligence under the above maxim. Thus, if A accuses B
of negligence, A has to prove that B was negligent. Notwithstanding this general rule,
in certain cases, the mere fact that a particular accident has taken place may become
prima facie evidence of negligence. Thus, if a hammer falls out of a window, it could
be a case of mischief. But if the chair falls from the window, it’s gross negligence.
National Small Industries v. Bhima Shankar Nath, in this case, inflammable
material was stored in a room which was in exclusive control of the defendant and his
worker. Due to the habits of smoking bidis and cigarettes inside the premises during
the working hours of workers one day a fire broke out causing substantial damage to
the building of the plaintiff. The High Court applied this maxim only to prove the
accident is sufficient to prove the negligence of the defendant.