What is the Law of Torts?
Sir John Salmond explains torts as “Torts as civil wrong for which the remedy is common law action for unliquidated damages, and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation”.
According to Austin “A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury”
In simple words what constitutes torts is, when there is a wrongful act and that was the result of the breach of duty of care and that breach has caused damage to a person which he legally entitled to and has a remedy in a court of law, it results in torts.
The new emerging definition is simply that it is a civil wrong where a person can sue another without any pre-existing relation which is in the case in Law of contracts and person can himself and not the state which is the case in Criminal Law, where one is relying on the state or its authorities for suing another person.
Tort and crime:
A tort is a civil wrong or a wrongful act or an infringement of a right leading to legal liability. However, there is a punitive element in some aspects of torts. The tort is considered as a civil wrong or criminal wrong depending on the remedy provided by law. It is widely stated that tort involves private wrong and crime involves public wrong. A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. Sometime the nature of the act may be subjected to both kinds subject of the proceedings. The wrongdoers in torts like assault, defamation, theft, malicious injury to property may be punished criminally and also may be compelled for compensation in accordance by civil action by the judiciary.
All torts are civil wrongs but every civil wrong is not a tort. A civil wrong may be labelled as a tort only where the appropriate remedy for it is an action for unliquidated damages. A civil wrong may be labelled as a tort only where the appropriate remedy for it is an action for unliquidated damages. For example, an assault generally requires an offensive touching. If someone assaults you, the state may decide to prosecute that person under the criminal law. If the state proves its case beyond a reasonable doubt, the person is considered guilty of the crime and maybe penalized criminally. Besides, you may decide to bring a civil tort lawsuit against the wrongdoer. Your lawsuit would be separate from the criminal proceedings. If you prove that the person assaulted you in the tort case and that you suffer damage as a result, you may receive money damages for the wrongful conduct.
How is tort different from crime?
A Tort is wrongdoing which hampers the individual or his property but a Crime is wrongdoing which hampers the social order and conduct of the society we live in. Tort impacts the well-being of the individual. The aggrieved party seeks compensation for the damages whereas crime impacts the well-being of society in general. The legal bodies try to give proportional punishment to law offenders to maintain peace in society. Torts are presented in civil courts however crimes are presented in criminal courts. Compensation for torts is based on the damages to the aggrieved party but the compensation for crimes are already mentioned in the book of the law.
Tort and contract:
The interrelationship between tort law and contract law is more attributed to the evaluation of damages. Under the aspect of contract law and tort law, they have several similarities and differences. contract law imposes duties on parties who agree (contractual relationship. Within this agreement, both parties are expected to act reasonably toward one another. If either of the parties fails to perform the duty then the contract law aims to provide damages to the injured party. damages are awarded with the intent to restore the injured party to where they were before the breach occurred, or as if the contract had been performed.
Under tort law, members of a community are expected to act reasonably toward everyone else within the community. Tort law is based on the premise that people are liable for their actions. The main similarity is that both branches of law provide damages to the victim.
What are the differences between contract and tort law?
A differentiation between contract and tort laws is concerned with the issue of consent. In contract law, both parties must enter an agreement knowingly and without any form of coercion. Each party must consent to the contract and its outcomes. In tort law, the interaction between the parties is not based on consent. Torts occur by the intrusion of one party to another that results in some type of harm. Courts will award damages in a contract case to restore the injured party to where they were before the breach occurred. In a tort case, a court will award damages to compensate the victim for their loss. Another difference between the two branches of law, is that punitive damages are sometimes awarded in tort cases, whereas they are rarely awarded in breach of contract cases.
Essential Elements of Law of Torts
To constitute tort following elements are essential-
1) Wrongful act committed by defendant
2) This wrongful act must have resulted in legal damage of plaintiff, i.e. injury to legal right of plaintiff.
3) There is legal remedy in the form of an action unliquidated damages.
A) Wrongful act or omission –
In order to make person liable for tort, he must have done an act which he was not expected to do, or he must have omitted to do something which he was supposed to do. Wrongful act is an act which is contrary to the provisions of law, thereby causing injury to the legal rights of another ,e.g. A commits the act of trespass is liable for trespass, or publishes a statement defaming another person is liable for defamation or wrongfully detains another person is liable for false imprisonment .
Similarly when there is a legal duty to do some act and person fails to perform that duty, he can be make liable for such omission.
The wrongful act or wrongful omission must be recognized by law. Therefore a mere social or moral wrong is not enforceable, e.g. if somebody fails to help a starving man or save a drowning child is only a moral wrong hence not liable.
B) Legal damage
Infringement of legal right –
A plaintiff has to prove that there has been a legal damage caused to him it is nothing but an injury to the legal right of the plaintiff thus plaintiff has to prove that there was a wrongful act or omission on the part of defendant, causing thereby breach of legal duty or violation of legal right of the plaintiff vested in him and recognized by law. Therefore, there can be no action under the law off tort unless there has been violation of legal right or plaintiff. Hence violation of legal right is actionable. it is immaterial whether plaintiff suffered by any loss in terms of money or not.
This provision expressed by the maxim “injuria sine damno” means injury to the legal right off plaintiff caused by defendant without any loss in term of money to the plaintiff.
Since what is actionable is the violation of legal right,it therefore follows that when there is no violation of legal right , no action can lie in the court of law even though defendants act has caused some loss of harm or damage to plaintiff.
C) Legal remedy –
The wrongful act of the defendant must come under category of wrongs for which the remedy is civil action for damages. The essential remedy for tort is an action. For damages but there are other remedies also, e.g. injunction obtained in addition to damages in certain cases of wrong. The law of tort is said to be a development of maxim “ubi jus ibi remedium” that there is no writ without a remedy. If a man has a right he must of necessity have a means to vindicte and maintain it and a remedy it is injured in exercise or enjoyment of it. It is in vain to imagine right without remedy. Thus where there is no legal remedy, there is no legal wrong. If out of above three elements, any element is absent or missing, then there is no tort. Wrongful act and legal damages goes hand in hand. Legal damage means violation or infringement of legal right.
Pigeon Hole Theory-
Salmond’s Theory of Law of Torts” is an attempt to analyse one of the foundational theories in torts i.e. Pigeon hole theory proposed by Salmond. It further deals with the justification
Salmond opined that there is no general principle of liability and if the plaintiff can place his wrong in one of the Pigeon holes, each containing a labelled tort, he will succeed. According to Salmond, there were only specific well-defined wrongs which can be termed as torts. He opposed generalization of torts into law of tort. He proposed that an act can be termed as a tort and a legal remedy is available for the same only if the said act falls within the specified well-defined wrongs.
In order to explain his theory he compared the law of torts to the net set of pigeon holes; each hole consists of a labelled tort such as assault, battery, deceit, slander, negligence, etc.
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