- Parties involved in Torts
- Importance of Torts
The word tort has originated from the latin word “tortus” which means “twisted”. Law of torts is a branch of Civil Law, in which person has a legal duty towards other persons for not doing an act or ommission which is forbidden by the law. Such forbidden acts then causes damage to the other persons. The person who suffered the damage has the right to claim damages for an infringement of interest on a degree that is recognised by the law. These duties owed by one person to another, embodies the norm of conduct outside the Contract Law. According to Winfeild, Tortitous liability occurs from a breach of duty which is fixed by law; such duty is towards the persons generally, and its breach can be redressed by an action for unliquidated damages. Such wrongs can give rise to civil cause of action.
There are two parties in a civil suit-
- Defendant– The person who is alleged to breach the duty of care towards the plaintiff. This person is defends herself when a civil suit is filed against her.
- Plaintiff– The person who suffered an injury or damage at the hands of the Defendant. This person files the suit against the defendant for claiming damages or compensation.
When the interest is protected by the law, it gives rise to the legal rights which in turn gives rise to corresponding legal duty. Some legal rights are absolute in nature or actionable per se, which means that mere infringement of those rights, even when no injury has occurred could give rise to civil action.
If following elements are present in a situation, then the tort occurs-
- A wrongful act or omission on the part of a person .i.e Defendant
- That wrongful act or omission must result in legal damage to another .I.e to the Plaintiff
- The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages. The wrongful act must be forbidden by law.
- (A)What comes under Wrongful Act and Omission ?
A wrongful act or omission 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 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. For instance, if a person drives his car at an excessive speed and with his rash and negligent driving injures any person on the road or keeps a dog on his land which escapes and bites a person in the neighbourhood then such act of the said person is a positive wrongful act or omission and he can be held liable for this.
A breach of merely moral or religious duty can’t be considered under this head but it must be a duty primarily fixed by the law.
Example: Moral Duty
A, a lady who falls ill and requests her neighbour B to look after her since she is all alone. B takes care of ‘A’ and extends all types of help like giving food and medicines to her and making her comfortable with his presence at the time of need. A recovered after sometime. Once B fell ill, he requested A to help him during his illness but A never acceded to B’s request and B due to lack of proper care and help became disabled. Here, it was A’s moral duty to look after B during his illness and this duty cannot be held as legal duty. Since, this moral duty has not been fixed by law itself, B
cannot take any legal action against the lady ‘A’.
(B) What constitute Damages ?
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 which is awarded by the Court to compensate ‘damage’ is called “damages”.
On the basis of presumption of damage rights are of two types-
- Absolute Right – mere breach of such rights of the plaintiff, would allow the plaintiff to sue the Defendant for damages or compensation even when no significant damage has occurred. These are “actionable per se”, which means no evidence of damage or injury is required by the court to make the defendant liable .In Ashby v. White, (1703), the plaintiff’s legal right to vote in the parliamentary election was maliciously violated by the defendant and the defendant was held liable although the plaintiff not incurred any pecuniary loss. It was held that the Defendant would be liable even if the Plaintiff did no suffer any major damages.
- Qualified Right – In qualified rights, there is no presumption of legal damage and the violation of such right is actionable only on proof of actual or special damage, which means the Plaintiff would have to prove to the court that she suffered a major injury due to the acts of the Defendants. In this case injury or wrong is not complete unless and until actual damage has been caused by violating the rights.
Rights are legally protected interests’. Right may be divided into two types:
•Private Rights – Private rights are those rights which vest in a person by virtue of law. Right to reputation, right to bodily safety and freedom, right to property etc. fall under this category. So, if a person has legal (private) right others have a duty towards him not to violate his rights. If his legal right is infringed without lawful excuse, he has a right of action against the person who infringes or violates it.
• Public Rights – these are those rights which belong to everyone as common people or it belongs in common to the members of the State generally. In case of violation of public rights, State takes action against the offender. For example, public peace, it is a right of everyone and if someone breaks it then he would be held liable and will be punished under law.
(C) What Constitutes Legal Remedy?
In tort, the wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. Legal remedy is the third essential for an action in tort. 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 for example injunction may be obtained in addition to damages in certain cases of wrongs or an action by the plaintiff himself without going to the court i.e. self-help.
IMPORTANCE OF TORT LAWS–
- It provides the set of legal obligations that are imposed on the members of the society to refrain from doing such acts that harm other fellow members
- It provides for remedies to the people who suffered the damages. It also provides for the conditions in which a party can claim the damages.
- It also protects the fundamental interests (like claims, and rights) that humans seeks in their lives and which a civil society ought to recognise as the rights of all the members of the society
- It also creates a balance between the competing interests. For instance, A intends to write something against B, that is derogatory of B’s reputation. Here, A has freedom of Speech and B has right to reputation. The two rights are in conflict with each other. Therefore, Court can curtail the right of A, to protect the right of B.