The word ‘tort‘ is a French translation of the word ‘wrong.’ The word tort comes from the Latin word Tortum, which means ‘torture.’ As a result, the word ‘tort’ simply means ‘wrong.’ However, not every wrongdoing or wrongful conduct is a tort. The tort is a type of civil wrong that differs from criminal wrong. In law, there are two types of wrongs: public and private.
“Tort” is defined in Section 2(m) of the Limitation Act of 1963 as “a civil wrong that is not exclusively a breach of contract or breach of trust.”
“A civil wrong for which the remedy is a common-law action for unliquidated damages and which is not exclusively the breach of a contract, a trust, or other merely equitable obligation”- as per Salmond.
“Tortious liability originates from the breach of a duty, which is principally fixed by law; this obligation is owed to all people, and its breach is redressable by an action for unliquidated damages,” Winfield explains.
All of these definitions have two essential implications: I a tort is a type of civil harm of wrong, as opposed to a criminal wrong, and (ii) not every civil wrong is a tort. As a result, tort can now be distinguished from a crime, as well as from a contract, a trust, and a quasi-contract. The nature of the appropriate legal remedy determines the distinction between civil and criminal wrongs.
In general, a tort consists of some act or omission done by the defendant (tortfeasor) whereby he has been harmed without justification or excuse. To be considered a tort, the following elements must be present: I Wrongful act: The act complained of must be legally wrongful in the eyes of the complaining party under the circumstances. To put it another way, it should have a negative impact on any of the above-mentioned interests and be protected by legislation. As a result, anyone whose legal rights, such as their reputation, bodily safety and freedom, and right to property, are infringed without legal justification has a right of action against the person who violated them, regardless of whether or not they suffer a loss as a result of the violation.
(ii) Legal damages: Not every loss is considered a loss under the law. It has to be an injury that the law acknowledges.
As was stated in Ashby v. White, (1703) 2 Ld. Raym. 938 legal damage is neither identical with actual damage nor is it necessarily pecuniary. Two maxims, namely :
(a) Damnum sine injuria, and
(b) injuria sine damnum, explain this proposition.
Damnum Sine Injuria
Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means infringement of a right conferred by law on the plaintiff.
The maxim states that a man may experience harm yet have no cause of action in tort since the harm is not caused to an interest protected by tort law. As a result, causing damage to another person, no matter how significant, is not actionable in law unless the plaintiff’s legal rights are also violated. Damage caused by an act performed in the exercise of legal rights is a common example. As an example, if I own a store and you open a shop in the neighbourhood, as a result of which I lose some clients and my profits drop, I cannot sue you for the profit loss because you are exercising your legal right.
Injuria Sine Damnum
It denotes injury without damage, i.e., when there is no damage but the injury is still an injury, or wrong in tort, i.e., where a legal right is infringed but no harm is caused but the plaintiff can still claim in tort.
Some rights or interests are so significant that their infringement might be considered a tort even if there is no evidence of harm. Injuria exists when an individual’s “absolute” private right is violated, and the plaintiff’s action will succeed even if there is no Domnum or damages. An absolute right is one whose infringement is actionable per se, that is, without requiring proof of harm.
Injuria sine domno covers such cases and action lies when the right is violated even though no damage has occurred. Thus the act of trespassing upon another’s land is actionable even though it has not caused the plaintiff even the slightest harm.
(iii) Legal remedy: The legal remedy is the third condition of tort obligation. This means that the incorrect act must be legal in order to be considered a tort. The most common remedy for a tort is an action for unliquidated damages, while additional remedies, such as an injunction, or particular restitution, may be sought in an action for the detention of a chattel. Self-help is a legal remedy that an injured party can use without having to go to court. It does not apply to all torts, and trespass on land is likely the best example of one that does.
For example, if “A” finds a drunken stranger in his room who has no business to be there in it, and is thus a trespass, he (A) is entitled to get rid of him, if possible without force but if that be not possible with such force as the circumstances of the case may warrant.
Mens Rea
How far a guilty mind of persons is required for liability for tort?
The General principle lies in the maxim “actus non facit reum nisi mens sit rea” i.e. the act itself creates no guilt in the absence of a guilty mind. It does not mean that for the law or Torts, the act must be done with an evil motive, but simply means that mind must concur in the Act, the act must be done either with wrongful intention or negligence. However, to this principle cases of absolute or strict liability are exceptions.
Strict or Absolute Liability
In some torts, the defendant is liable even though the harm to the plaintiff occurred without intention or negligence on the defendant’s part. In other words, the defendant is held liable without fault. These cases fall under the following categories:
(i) Liability for Inevitable Accident – Such liability arises in cases where damage is done by the escape of dangerous substances brought or kept by anyone upon his land. Such cases are where a man is made by law an insurer of other against the result of his activities.
(ii) Liability for Inevitable Mistake – Such cases are where a person interferes with the property or reputation of another.
(iii) Vicarious Liability for Wrongs committed by others – Responsibility in such cases is imputed by law on grounds of social policy or expediency. These case involve the liability of the master for the acts of his servant.
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