The law of tort

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QUAID-E-AZAM LAW COLLEGE, LAHORE LLB PART I LAW OF TORT
1) PRELIMINARY NOTE
According to Winfield the main aim or purpose of Law of torts is
a) Allocation of losses
b) Prevention of Losses
Hence, Law of tort which evolved on the principle of “ubi Jus ibi remedium”has come a long way from its old position in 13th century .The Industrial and motor age has catapult the law at the paramount of civil litigation.The law of torts is primarily concerned with the providing a remedy of compensation to persons who have in way been harmed by the conduct of others.
2) MEANING
LITERAL
Derived from Latin word “tortum” which means to twist, tort is French word meaning “wrong” and is equivalent to Roman Law Latin term “Delict”.
LEGAL
“A private or a civil wrong or injury for which the Court will provide a remedy in the form of an action for damages”
3)DEFINITION BY JURIST
-WINFIELD
- SALMOND
-“In very general terms, a tort is an injury other than a breach of contract, which the law will redress with damages.” (Fleming)
-“Tort is an instrument for making people adhere to standards of reasonable behavior and respect the rights and interests of one another.” (Setavald)
4) SOURCES
-Common law
-Equity, justice and good conscience
-Statues
5) OBJECT OF TORT
- To put victim back in original position before commission of tort
- To compensate victim for present and future
- Deterrence
- To protect rights of men
6) PARTIES INVOLVED
-Tort feasor
-Aggrieved party
7) BASIC ESSENTIALS OF TORT
The basic essentials of a tort are three in number from which the above seven could be deduced.
An essential is a necessary requirement or qualification without which an act is incomplete.
1) WRONGFUL ACT
Defendant must have committed a wrongful act. By wrongful act one means an act that is contrary to law i.e. law declares it to be wrongful or illegal.
-KINDS/FORMS OF TORT
It includes act and omission both and can be in one of the following forms
a) Non-feasance
b) Misfeasance
c) Malfeasance
-TEST OF LEGALLY WRONGFUL ACT/OMMISSION
The crucial test of legally wrongful act or omission is its prejudicial effect on the legal right of another.
“The act complained of should, under the circumstances , be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do him harm in his interest is not enough”(Rogers v Rajendro Dutt 1860)

Ø LEGAL RIGHT
- Definition by Blacklaw dictionary
- Austin;
“a faculty which resides in a determinate party or parties by virtue of given law, and which avails against a party other than the party or parties in whom it resides”
Generally, rights are of two kinds;
Ø PUBLIC RIGHTS (BLD)
Ø PRIVATE RIGHTS (BLD)
Private rights are rights relative to the mind, body and property, personal rights that a person has to the exclusion of the World.
Public rights are the one belonging to the members of state generally.
Ø Rights and duties are reciprocal in nature. The nature of right determines the nature of duty.
Liability for tort arises, when the wrongful act complained of amounts either to an infringement of legal private right or violation of a legal duty.
2) LEGAL DAMAGE
-Definition Blackslaw dictionary
Ø Winfield says that
“Injury must be of the kind which the statue intended to prevent”
Again it brings us to the nature of the right involved
- DIFFERENCE BETWEEN DAMAGE AND DAMAGES
Rights as regards to legal damage can be classified into;
Ø Absolute Right
Ø Qualified Rights
-Violation of absolute rights is actionable per se
- Violation of a qualified right is not actionable per se
MAXIMS RELATED TO LEGAL DAMAGE
Ø INJURIA SINE DAMNO
Ø DAMNUM SINE INJURIA
INJURIRA SINE DAMNO
- MEANING
DAMNUM means proof of loss or damage, Sine means without and INJURIA means violation of some legal right.
Privy Council observed
“There may be, a where a right is interfered with,injuria sine damno sufficient to found an action; but no action can be maintained where there is neither demnum nor injuria“
· Ashby v White
· Marzette v William
· “There may be where a right is interfered with, injuria sine damnum sufficient to found an action; but no action can be maintained where there is neither damnum nor injuria” (sKaliKissen Tagore v Jadoo lal Mullick(1879)


DAMNUM SINE INJURIA
MEANING
“When a statue confers upon a power to be exercised for the public good, the exercise of power is not generally discretionary but imperative. No action lies against district Board for the planting of trees by the side of a road even if a tree through unknown causes falls and damages the house of plaintiff, unless it is proved that the district Board did not use due care and diligence. [AIR 1955 pat 432]
-GloucesterGrammar School Case(1410)
3) LEGAL REMEDY
The maxim “Ubi jus ibi remedium”, there is
1) Where there is a right, there is a remedy
2) There is no wrong without a remedy
-REMEDIES
There are two kinds of remedies;
-Judicial Remedies
-Extra-Judicial Remedies
MENTAL ELEMENTS IN TORT
Usually mental elements are not relevant in action for tort but they are taken into consideration;
a) INTENTION
b) MOTIVE
c) MALICE

CONCLUSION:


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