Question:- Define tort and explain its essential ingredients.

Answer:-

Meaning of Tort

The term ‘tort’ is the French equivalent of the English word ‘wrong’ and Roman term ‘delicti’. This word has been derived from the Latin term ‘Tortum’ which means ‘twisted’ or a ‘crooked’ act. Thus, tort may be said to mean a conduct which is not straight or lawful, but is twisted, crooked or unlawful, causing an injury to a person.

Definition of Tort

Law of torts belongs to one of those branches of law which elude definition. Addison has said that, “It is not possible to give a scientific definition of tort”. According to Street, “No definition of tort at once logical and precise can be given”. The reason for giving no satisfactory definition of tort may be summed up as follows:-

1. The law of tort is still growing.
2. It is based on common law and not statue law.
3. It is implicated historically with the procedure.

According to Winfield- “Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”.

In order to understand the definition given by Winfield, it is essential to discuss the three essentials separately.

Objectives of a tort

1. To determine rights between the parties to a dispute.
2. To prevent the continuation or repetition of harm i.e. by giving orders of injunction.
3. To protect certain rights of every individual recognized by law i.e. a person’s reputation.
4. To restore one’s property to its rightful owner i.e. where the property is wrongfully taken away from its rightful owner. 

Essential of Tort or Characteristics of Tortious Liability

1. Primarily fixed by law- The words primarily fixed by the law mean that the law imposes a duty on every body’s shoulder to take care so that there may not occur any breach of that duty which is pre-supposed by law. A tort arises by the operation of law and not by the consent of any particular person.
2. Duty toward persons generally- Another feature of the duty is generality. Duty is general, on every person and liability may attach to any person who makes a breach of duty.
3. Breach of duty- Breach of duty means non-observance of the aforesaid duty. Liability may arise only when there is a breach of duty.
4. The breach of duty is redressible by an action for unliquidated damages- The unliquidated damages simply mean a number of damages as the Court deems fit in its opinion. In tort, the amount of damages depends upon the discretion of the Court. It is not fixed. It is in the discretion of the Court to decide as to what amount of damages should be awarded to the plaintiff.

Winfield’s definition provides a good working rule. The greatest merit of this definition is the incorporation of the concept of duty. The concept of duty implies, on the one hand, the relationship of plaintiff and defendant, and on the other, the standard of behaviour which the defendant is required to fulfil.If, A, for instance, drives a car and injures B, B will not be able to recover compensation, from A unless he proves that A owed a duty to be careful towards him and that he has committed a breach of it.

In spite of all its merits, the definition of Winfield is not completely satisfactory.

In order to prove an action for tort in the court, the plaintiff has to prove that there was a wrongful act or an act or omission which resulted in the breach of a legal duty or the violation of a legal right. So, there must be a violation of a legal right of a person and if there is no violation of a legal right then there can be no action under the law of torts. If there has been a violation of a legal right, the same is actionable whether the plaintiff has suffered any loss or not. This is expressed by the maxim, “Injuria sine damno” where  ‘Injuria’ refers to “infringement of the legal right of a person”  and the term ‘damnum’  means “substantial harm, loss or damage to that individual”. The term ‘sine’ means “without”. However, if there is no violation of a legal right, no action can lie in a court despite of the loss,  harm or damage to the plaintiff caused by the defendant.

-------------------------

For advertisement of events, vacancy and seminar etc. please email us at legalbuddy@gmail.com.