The Meaning of ‘Tort’:
- Tort means wrong. But every wrong is not a tort.
- A wrong may be either civil or criminal.
- A criminal wrong is an offence against the State, and criminal laws like the IPC deal with such wrongs.
- A civil wrong is a wrong against private individuals, and civil laws like the law of torts and the law of contracts deal with such wrongs.
- In case of a civil wrong, the complaining party is awarded damages or compensation.
- Such damages or compensation may either be liquidated (fixed in advance by the parties themselves, e.g. in case of a breach of contract) or unliquidated.
- The law of torts deals with cases of civil wrongs where the damages are unliquidated i.e. not predetermined or fixed in advance.
- Such damages are decided by the court.
Thus, a tort may be defined as a civil wrong redressible with unliquidated damages.
Essentials of a tort
A tort consists of some act or omission done by the wrongdoer, without reasonable cause, which has caused some harm or injury to the suing party. Essentials of a tort:
- A wrongful act or omission is done by the wrong doer or the defendant.
- Some harm or injury is suffered by the suing party or the plaintiff.
Five important legal maxims under the Law of Torts
- Damnum sine injuria
Damnum means damage or harm. Sine means without. Injuria here means legal injury, i.e. infringement of a legal right. Thus, Damnum Sine Injuria means damage without legal injury. A person may have suffered damage or harm but if there is no infringement of his legal right, such damage is not actionable, i.e. in such a case, no action shall lie under the law of torts. Every harm or damage by itself is not actionable. It becomes actionable only when there is infringement of some legal right of the suing party.
The most celebrated case on this maxim is the Gloucestor Grammar School Case where a schoolmaster set up a rival school in the vicinity of an existing and flourishing school, which forced the existing school to reduce its fees drastically, thereby causing big monetary loss to it. When the existing school sued against the new school, the court held that the plaintiff had no remedy for loss suffered by them because defendant is exercising his own legal right and no injuria or infringement of a legal right of the plaintiff had taken place.
- Injuria sine damnum :
It means legal injury without damages. It applies in a case where legal right of a person is infringed or violated, but no damage or harm is caused to him. He is entitled to sue for damages in such a case even when actually no harm or damage is caused to him.
The most celebrated case on this maxim is Ashby v. White, where the plaintiff was a qualified voter at a parliamentary election. Defendant, a Returning officer wrongfully refused to allow him to vote. Even though the candidate for whom the plaintiff wanted to vote won by a big margin, and thus the plaintiff suffered no loss or damage, yet, since his legal right to vote was infringed, the defendant was held liable and the plaintiff was awarded damages.
- Volenti non fit injuria:
Voluntarily suffered injury is not fit for action. Essential ingredients:
- The plaintiff had knowledge of risk.
- He ran the risk with his free consent.
- Qui facit per alium facit per se: He who acts through another acts himself
- Respondeat superior: Superior is responsible
Illustration 1 [based on the principle of ‘Damnum sine injuria’]
Principle: No action lies for mere damage or loss, however substantial, caused by an act which does not infringe some legal right of a person.
Facts: A, B, C and D, shipowners who shipped tea from China to England, combined together to drive F, a rival shipowner, out of the trade by offering special concessions to customers who would deal with them to the exclusion of F. Can F who suffered loss claim compensation?
- A, B, C, D had adopted unlawful means.
- A, B, C, D had done nothing unlawful.
- Yes, because F suffered loss.
- None of the above.
Answer: Though F suffered loss but his legal rights were not violated by A, B, C, D. There is no element of illegality in the fact of combination among the defendants. Hence the answer is (d).
Illustration 2 [based on the principle of ‘Injuria sine damnum]
Principle: If there is infringement of legal right of a person, he can sue under torts for compensation even if he has not suffered any harm or loss.
Facts: Mohan, a bank manager refused to honour a cheque presented by Harish, a customer, though he had sufficient funds in his account. Can Harish sue Mohan under torts and claim compensation?
- Mohan has violated legal right of Harish.
- Since the entire amount of Harish in is bank account was intact.
- Mohan can plead extraordinary situation in the bank at that point of time due to which he could not honour the cheque.
Answer: Though Harish did not suffer any loss but his legal rights were violated. Hence the answer is (a).
Illustration 3 [based on the The Principle of ‘Volenti Non Fit Injuria’]
Principle: When a person consents to the infliction of some harm upon himself, he has no remedy in tort.
Facts: The plaintiff was at a motorcar race being held on a track owned by the company. During the race there was a collision between two cars one of which was thrown among spectators thereby injuring the plaintiff. Plaintiff filed a suit against the company.
- Company is liable.
- Company is not liable because plaintiff impliedly took the risk of injury.
- Company is not liable because it owned no duty of care to the plaintiff.
Answer: since the plaintiff was at the motor car race voluntarily, he impliedly consented to the risk of injury, and so cannot claim compensation. Hence the correct answer is (b).