ESSENTIALS OF TORTS

The term tort has been explained in the Chambers Dictionary, Tort is any wrong or injury not arising out of contract for which there is the remedy by compensation or damages.

According to Ratan Lal and Dhiraj Lal in their book the Law of Torts, a tort means, a civil wrong independent of a contract for which the appropriate remedy is an action for damages.

Following elements are necessary to constitute a tort-

1. Wrongful Act or Omission or Breach of Duty

The first essential ingredient or element in constituting a tort is that a person must have committed a wrongful act or omission or breach of duty.

A wrongful act is said to have been committed by a person who has not performed his duty like a reasonable and prudent person or has broken it intentionally.

A tort is a breach of some duty between citizens, defined by the general law, which creates a civil cause of action. The duty must be founded in the common right, not in a straight personal relation. It must be a duty assigned by Law, does not depend on the will of the parties. The term tortious means unlawful. Thus a tortious liability can be imposed only when there is a breach of law. A wrongful act must prejudicially affect a person in some legal right, merely that it will do him harm in his interest is not enough.

To constitute a tort, a person must have committed a breach of that duty which has been fixed by the law itself. A duty in law may mean that there is some legal limitation or restriction on the conduct of a person that he should behave in such a manner as a reasonable person would have behaved in like circumstances.

A wrongful act may be a positive act or an omission which can be committed by a person either negligently or intentionally or even by committing a breach of strict duty.

The wrongful act or a wrongful omission must be one recognised by law. If there is a mere moral or social or religious wrong, there cannot be a liability for the same.

The duty must be fixed by law and the breach of duty is liable under law. A person does not become liable without injuria although he might have committed a breach of legal duty.

Tort is an injury or a wrong committed with or without force to the person or property of another, and such injury may arise by either the nonfeasance, malfeasance or misfeasance of the wrongdoer.

2. Legal Damage

It is the second important element in constituting a tort. Damage means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act done by another person. The sum of money that is awarded by the court to compensate for injury is called damages. Legal damage means an invasion or infringement of the private legal right.

On the presumption of damage, rights are of two types

1. Absolute

2. Qualified

In case of violation of absolute right, the law conclusively presumes damage although the person wronged may have suffered no pecuniary loss whatsoever.

It is for the plaintiff to prove that there has been legal damage caused to him due to the wrongful act of the defendant. Even if the plaintiff has not suffered any loss, still he can succeed if his private legal right is violated.

As per thering. “Rights are legally protected interests”.

Private rights are those which vest in a person by virtue of law. Public rights are those which belong in common to the members of the State generally.

3. Legal Remedy

The third essential element for an action in tort is that the act complained of must give rise to a legal remedy. There must be some legal remedy against a wrongful act. A tort is a civil injury, but all civil injuries are not torts. The essential remedy for a tort is an action for damages but there are other remedies also.

Wrongful act signifies a breach of a legal duty that is a person must commit an unauthorised act or omission which is independent of contract. Legal damage signifies infringement of private legal right of another person and legal remedy signifies that there must be altogether one of four remedies recognized by law they are damages, injunction, specific restitution of property and self-help.

Reference

S.R. Myneni 1st Edition.

Aishwarya Says:

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