BASICS OF LAW OF TORTS

Tort comes from the Latin word tortum, meaning "wrong." When someone has done some wrong to you, you can seek justice (in the form of compensation) by taking them to court. Tortum itself comes from tortus (Latin word) meaning "twisted."

Tort means conduct which is twisted or wrong. Whenever a person behaves in a manner that infringes the rights of another person, his conduct amounts to a tort.

In Other Words: Tort means a civil wrong. It is a wrong for which the remedy is to claim compensation, popularly called ‘damages’. This is different from criminal wrong where the wrongdoer is punished. Every wrong or wrongful act is not a tort. Tort is really a kind of civil wrong as opposed to criminal wrong. Wrongs, in law, are either public or private.

A tort consists of some act or omission done by the defendant (tortfeasor) whereby he has without just cause or excuse caused some harm to plaintiff. To constitute a tort, there must be:

      i.        a wrongful act or omission of the defendant;

    ii.        the wrongful act must result in causing legal damage to another; and

   iii.        the wrongful act must be of such a nature as to give rise to a legal remedy.

Tortious Liabilities are of three types-

      i.        Strict or Absolute Liability,

    ii.        Vicarious Liability and

   iii.        Vicarious Liability of the State.

An action for damages lies in the following kinds of wrongs which are styled as injuries to the person of an individual:

a.    Battery

b.    Assault

c.    Bodily harm

d.    False imprisonment

e.    Malicious prosecution

f.     Nervous shock

g.    Defamation

Remedies in tort are of two type judicial remedies and extra judicial remedies. Three types of judicial remedies are available to the plaintiff in an action for torts are:

      i.        Damages,

    ii.        Injunction, and

   iii.        Specific Restitution of Property.

Extra judicial remedies are:

      i.  Self Defense,

    ii.  Prevention of Trespass,

   iii.  Re-entry on Land,

   iv.  Re- caption of Goods,

    v.  Abatement of Nuisance and

   vi.  Distress Damage Feasant.

Law of Torts relies solely on judge made law for its development.

Victim' or the Plaintiff - The person who suffers the injury is called the 'victim' or the 'plaintiff'.

Tortfeasor' or the Defendant - The person who is responsible for that injury is called the 'tortfeasor' or the 'defendant'.

Essential elements of a 'Tort': The four elements to every successful tort case are: duty, breach of duty, causation and injury. For a tort claim to be well-founded, there must have been a breach of duty made by the defendant against the plaintiff, which resulted in an injury, which could be understood as follows:

      i.        Wrongful act or omission by the defendant.

    ii.        Such wrongful act or omission interferes with the legal rights of the plaintiff, i.e. legal injury to the plaintiff.

   iii.        Legal remedy of damages (compensation) is available to the plaintiff.

   iv.        Violation of a legal right gives rise to a tort even if no physical damage has occurred. This is expressed by the maxim, 'injuria sine damno 'i.e. legal injury without damage.

On the other hand, any damage, howsoever substantial, is not actionable if the legal right of the plaintiff is not violated. This is expressed by the maxim, damnum sine injuria i.e. material damage without violation of a legal right.

    v.        The remedy for tort is unliquidated damages. Unliquidated damages mean damages that have not been pre-determined by the parties. These damages are determined by the Court by considering the injury caused to the plaintiff. This is different from contract where parties ascertain the compensation to be paid in case of breach of contract.

   vi.      Tort is fundamentally different from breach of contract. A claim in tort arises from breach of a duty which a person owes to another, without any agreement between them. Thus, tort means violation of a 'right in rem' i.e. right vested in a person and available against the whole world.