Written by:Adv. Pooja Gupta

Define Torts and its essential elements Law of Torts in India

Define torts and give its essential elements, Law of Tort, Tortum, Law of Tort in India, Indian Tort Law

Introduction: The term ‘tort’ has been derived from the Latin word ‘tortum’ which means to twist or to crook or a wrongful act rather than an act that is not straight or lawful.

Tort word used first time In the case of Boulten vs hardly 1597

Definition:- The tort is completely based on the common law of England which is codified and to give also tort is a progressive law, so it is a very difficult certain definition of this word, but various eminent jurists defined the term tort in the following manner.

According to section 2(m) of the Indian limitation Act 1963,

‘Tort is a civil wrong which is responsible by an action for unliquidated and which is other than a mere breach of contract or breach of trust’.

It’s according to Salmond

A tort is a civil wrong for which the remedy is an action for unliquidated( not pre-fixed) damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.

It is according to Fraser

The tort is an infringement(violation) of right in Rem of private individual giving a right of compensation at the suit of the injured party.

Origin of Tort Law

The ‘law of torts’ owes its origin to the common law of England. So it’s very well developed in the UK, U.S.A, and other advanced countries.

In India law of tort is non-codified, like other branches of law e.g. Indian Contract Act(I.C.A) 1872, the Indian penal code(I.P.C) 1860. It is still in the process of development.

Tort law was perceived as an important component of common law. It was deemed relevant in this case in India, but proper care was taken to make sure that it was applied in accordance with the Indian context, customs, & traditions.

In the particular instance of Vaghela v. Mussedin, it was declared that the meaning of the values of justice, fairness, and moral conscience should be construed as per British common law rules, but in light of the Indian scenarios and traditions.

Later, in the case of Naval Kishore V/s Rameshwar A.I.R. 1995, it was mentioned that the tort laws of England must be applied in accordance with the Indian scenario, that is, in accordance with Indian customs & traditions.

Given the foregoing, English law is responsible for the stability of tort law in India. This law has been in effect in Indian courts since 1726, but it is still in its initial phases of development. The foremost reason for this:

  • Not codified law.
  • Legal illiteracy.
  • Social inequality.
  • Insufficient political willpower.
  • The judicial system is both costly and time-consuming.

As a result, codification of the law, public awareness of the law, quick access to equality, and strengthening political willpower are now required.

Tort of law objectives

  • To decide the rights of the parties in dispute.
  • To prohibit the injury from continuing or repeating, such as by issuing injunctions.
  • To safeguard specific legal rights of every individual, such as a person’s status.
  • To restore one’s own assets to their legal owner, i.e. when one’s property has been unfairly taken away.

Types of Torts

 Let’s take a look at the different types of torts before delving into the essential ingredients of tort law. Intentional torts are the first; negligent torts are the second, and strict liability torts are the third.

When a person deliberately decides to commit or omits to perform an act while completely aware that a certain act or omission will cause damage or injury to any person, the first type of tort occurs. Trespass, libel, assault, and other intentional torts are examples of intentional torts. When some other patient struggles with harm or injury as a result of one person’s negligence, the first individual is said to have committed a negligent tort. An accident was caused by the disobedience of traffic rules is an example of this type of tort.

It’s important to understand the meaning of the term “negligence,” which refers to when a prudent person’s reasonable level of care isn’t followed. In strict liability torts, an individual is found responsible for a wrong regardless of whether he or she intended to do so or not. Rylands v. Fletcher, a well-known case, was crucially important in establishing the law governing strict liability torts.

Essentials of Torts

To constitute a tort-:

  • There must be a wrongful act or omission committed by a person.
  • The wrongful act or omission must result in legal remedy in the form of an action for damages.
  • The wrongful act must be of such a nature to given rise to a legal remedy in the form of an action for damages.

Wrongful Act or Omission

To determine liabilities in tort it must be proved that the act or omission done by the one person was a wrongful act. The act or omission must be legally wrongful. Violation of moral, social, and religious rights does not come under the category of torts.

Another essential element is wrongful act or omission committed by one person must result in legal damages to the other i.e. Such act or omission resulted in a violation of legal remedy to another person. The following are the essential ingredients of the legal damages:

  • There must be an infringement (violation) of a legal right (absolute or qualified).
  • Such infringement of a legal right must have a presumption of damage in the eye of the law.
  • Proof of actual damages suffered in case the right contravened is not an absolute but only a qualified right.

The real significance of legal damage can be

Best illustrated by the following two maxims:-

Injuria sine damnum

It denotes harm with no damages Which means that there has been a violation of legal rights but no damage has been done to the plaintiff. It basically indicates that the plaintiff suffers no loss or damage; only his legal rights are violated.

Bhim Singh vs. Jammu & Kashmir State

Bhim Singh (plaintiff) was a J&K Assembly MLA. While being on his way to Assembly, the plaintiff was wrongfully detained by police by police. He was also not taken to the Magistrate. This act did not cause him physical or financial harm, but it probably violated his legal & fundamental rights. The State was found liable and ordered to pay compensation for damages.

Damnum sine injuria

It denotes damages without causing harm. In short, the plaintiff has suffered losses. They may be physical or pecuniary in nature, but no legal rights are violated.

Gloucester Grammar School

In this case, the defendant established a school in the same neighborhood as the plaintiff’s school. The defendant even lowered the school’s fees. This was not a tort case because the plaintiff suffered the only loss of money and none of his legal rights were breached.

The difference between Injuria sine damnum and Damnum sine injuria

  1. On the one hand, there is no physical harm or actual harm on the side of the plaintiff in the situation of Injuria sine damnum but there is actual harm and damage on the side of the plaintiff in the case of Damnum sine injuria.
  2. Second, in the instance of Injuria sine damnum, the party probably suffers a violation of their legal rights, whereas there is no such violation in the instance of Damnum sine injuria.
  3. Finally, Injuria sine damnum is legally actionable in courts, whereas Damnum sine injuria is not.
  4. Injuria sine damnum deals with legal wrongdoings, whereas Damnum sine injuria deals with ethical wrongdoings.

To be successful in an action for torts the last essential is that the wrongful act or omission must come under the category of wrongs for which the remedy is a civil action for damages.

A tort is a civil injury, but all civil injuries are torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. Though the specific remedy for a tort is an action for damages. But there are other remedies also i.e. An injunction may be obtained in addition to damages in certain cases of wrongs. To similarly, specific restitution of a chattel may be claimed in an action for the detention of a chattel.

Conclusion of the Law of Torts

There are a few resemblances between crime & tort, so even though tort, or private action, was used better over the past centuries than criminal statutes. For instance, assault is both a criminal offence and a tort. A tort permits a person, the victim, to acquire a remedy that is beneficial to them. Illegal acts, on the other hand, are continued to pursue not to acquire redress to aid or assist a person – through criminal trials frequently have the power to grant such remedies – but to remove an individual’s freedom on behalf of the state. This tries to explain why incarceration is commonly used as a punishment for serious crimes but not for torts.

Read more: –

The doctrine of Volenti non-fit Injuria case and exception

The doctrine of Eclipse and Severability in Indian constitution

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