- Created by: Chanda-1
- Created on: 03-04-18 10:22
What does a tort mean?
" Tort " etymology:
In Latin- "tortum", meaning twisted.
In French- meaning "wrong"
Civil wrong - for which there is redress for- unliquidated damages- not just a breach of contract- or breach of trust
Is it a tort or not? :
Classify into criminal or civil. Only if civil, classify if breach of trust or breach of contract or OTHER. If OTHER, it constitutes a tort.
What makes a tort? ( Requisites )
Essentials of a tort:
Wrongful Act + Legal Right Violation
Damages + Injury
Wrongful Act : Failure to take reasonbale care, act with gross negligence, defamtion etc.
Failure to do something that must have been done or failure to not do something that should not have been done,
Legal Damage: Must be violation of a legal right and there must be proof of that.
Determination of a tort rests on two Latin maxims,
Maxims for Tort: Injuria sine damnum & Damnum sine
Injuria sine damnum:
Violation of legal right without causing actual damages.
Valid case for tort.
Damnum sine injuria:
Causing damage without the violation of a plaintiff's legal right.
Not a case for tort.
If there is proof by the plaintiff that some wrongful act lead to damages and/or violation of legal right, defendant can be held liable.
General Defences for Claims of Torts : 1
Vis Major or Act of God :
Natural forces only , must be unforeseen, unanticipated, inevitable and unavoidable.
Volenti Non Fit Injuria or Voluntary Risk:
Where plaintiff voluntarily subjects themself to some risk which causes them damage,
Hence, their own consent serves as defence against them.
Exception- Rescue cases- where due to the fault of the defendant, the plaintiff, maybe a rescuer, attmepts to save the defendant and incurs damages. Although, the plaintiff volunatrily subjected himself to the risk in saving the life of the defendant, the situation to do so arose from the defendant's own negligence or wrongful act. Therefore, volenti non fit injuria cannot be applied here.
General Defences for Claims of Torts : 2
Borders on self defence, where in such cases, defendants can protect their person and property using reasonable force as a part of self defence. Whether harm is caused or not, defendant cannot be held label for exhibiting force admitted to be "reasonable" by the court.
Conditions: The threat to defendant must be imminent or immediate and foce used must be reasonable.
Must be unforeseen or unanticipated and such an accident took place despite reasonable care taken.
Plaint's own fault:
Similar to contributory negligence, where palintiff suffered legal damage and/or damages because of somehting wrong that he/she did.
General Defences for Claims of Torts : 3
Remoteness of Damage:
Defendant has caused plaintiff some damages but, indirectly, wherein, the wrongful act has very remotely, caused legal damages to the plaintiff but the connection is far fetched, unclear and so remote that the wrongful act couldn't have directly caused damages.
An otherwise wrongful act done when there is no other alternative available is an act of necessity, as it does not inlude mala fide/ malicious intention to cause harm to a person.
Acting under statutory authority:
Act of State; Municipal, State, Centre, cannot be sued for any damages arising out of their own actions in their respective jurisdictions, sovereignty or capacity.
Act of causing injury to someone's reputation in the eyes of the public without lawful justification using words, gestures, pictures, caricatures etc.
Libel - in the form of words, printed matter, permanent and visible form.
Slander- Defamatory statement made in a non transient and passing manner ; gesturing and speaking.
Conditions: Case for defamation
Must be defamatory + Must refer to the plaintiff + Must be published i.e. making the defamatory statement aware to a person other than the defamed person. ( spreading of a rumor )
Defamation : Defences
If the defamatory statement has even partially truthful elements and some partially false elements, the defendant has complete defences.
Fair and bonafide comment:
If a fair and " in good faith" comment is made about a matter of public interest i.e. with no presence of malicious intent, defendant is not liable.
If a person making a defamatory statement is in a position to make such a statement i.e. knows the facts of the case ; privy to information that would justify the statement, defendant is not liable.
Definition: Breach of a legal duty to take care resulting in damage to the plaintiff, with the absence of reasonable care.
Essentials: A owed a duty of care to B. A breached the duty , either totally or partially. B suffered damages as a result.
Types: Contributory negligence - Plaintiff + Defendant both contribute to damages suffered by plaintiff
Composite negligence - 2 or more parties contribute to damages suffered by a third party i.e. the plaintiff
Doctrine of last opportunity - the person who had the last opportunity to avoid the injury is directly responsible for damage arising out of breach of duty of care.
Defences: Proving that def. didn't owe any duty of care, or that there was no breach of duty or Volenti non fit injuria.
Definition: Unlawful, unreasonable interference with a person's use or enjoyment of land, property or of some right over it like, unnecessary noise, smoke, fumes, heat, smell etc.
Public nuisance: Private nuisance:
Causing injury, damage, annoyance to the general Unauthorized interference/ use of
public,endangerment of health, safety, comfort . someone's property, causing damage, but not amounting to trespass.
Defences to private nuisance:
Acquired or Prescriptive right: if the plaintiff didnt object to an act that is potentially damaging for a long period of time i.e. at least 20 years, then he/she cannot complain of the act after the passage of twenty years .
Statutory Authority: If an act that causes interference in way of nuisance is authorised under a statute, there is no case for nuisance tort.
Trespass to land: interference with someone's possession or use of their own land without lawful justification.
- Trespass can be accidentally, negligently or even intentionally.
- Trespass is against possession and not necessarily ownership. So someone under false ownership/ partial ownership can claim trespass too
- Trespass also does not require presence of damages, the mere fact that there was interefernce / trespass is enough for an actionable tort.
Trespass to person:Threat of use of force or actual use of force against a person. 3 types-
- Assault comes before battery takes place wherein an act by the defendant creates a reasonable apprehension/ fear of battery in the plaintiff's mind.
- Battery is the intentional actual use of unlawful force against a person without lawful justification.
- False Imprisonment-Requisites: Plaintiff's liberty/freedom must be completely restrained without any lawful justification.
Definition: Liabiility of a person for a wrong/tort committed by someone else.
Eg: Master-Servant ; Principal-Agent ; Partners.
Qui facit per alium facit per se : " Act of the agent is the act of the principal"- during the course of agency/employment.
- In the course of employment
- Tort must be committed by the servant himself
- Liability of master is not limited to acts of servant that he authorised but he is also liable for those acts of the servant which were committed on his own accord during the course of employment.
Liability of the master for different types of torts committed by the servant:
Fraud, wrongful delegation of duties, mistake, theft, negligence.
Principle of strict liability: Even without any negligence or intention of causing harm on the defendant's part, he/she is still liable for the harm caused to the plaintiff. Defence of inevitable accident cannot be applied here.
- Defendant brought a dangerous thing onto his land
- The dangerous thing escaped from the land
- There is non natural use of land where land is put to special use which may expose others to danger.
Exceptions to the principle of strict liability:
- Wrongful act of third party - composite negligence for example
- Consent of the plaintiff/ Volenti non fit injuria
- Plaintiff's own fault - for example contributory negligence.
- Act of god/ Vis major
Absolute liability: This principle involves that of strict liability BUT is not subject to any of the exceptions of strict liability. This principle was made by SC after the Bhopal Gas Tragedy and leakage of oleum from Sriram Foods and Fertilizers Industries' units.
If a tort is committed against a minor, a claim can be made only by a guardian or a major.
Res ipsa loquitor:
"The thing speaks for itself". Usually the burden fo proving negligence on the part of the defendant lies on the plaintiff but in some cases, the plaintiff is not required to prove anything because the accident and damages speak for themselves. In these cases, the burden shifts to te defendant to prove his innocence.