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TORTS AND THE GENERAL DEFENCES

What is Tort?

A tort is a civil wrong. The word tort is derived from the french word “tortum”, which means crooked or twisted. A tort is different from a crime. Torts are usually a violation of the legal rights of a person. A tort is only a part of all civil wrongs. There are several torts like Defamation, Nuisance, Trespass, Infliction of emotional distress, Battery, etc. Here a person who commits a tort is called a Tortfeasor or a Wrongdoer. The act done jointly or severally is called a tortious act. They are compensated based on the provisions in the Law of Torts.

Elements of a tort

Constituting a tort needs three essential elements. They are:

  1. Wrongful Act/ Omission
  2. Duty legally enforceable by law
  3. Legal damage

A wrongful act is an act that is morally or legally wrong. The nature of that act should not be justifiable. Law imposes a duty on everyone not to harm others, and this duty is legally enforceable in all the courts. Damage means injury or actual loss. If someone does damage to others, they can claim damages. Damages mean compensation for the loss sustained.

Difference between tort and crime

A tort is a civil and a private wrong. In contrast, a crime is a public wrong. The whole society suffers when a murder is committed in the area. The law of torts is not codified, but the law of crimes is codified. If you commit a crime, you’ll get punished. If you commit a tort, you need to pay the opposite party the damages they demand. The intention is not important in a tort, but a crime is argued based on intent. In a tort case, a civil suit is filed, whereas, in a crime, a complaint is lodged against that person.

The intention of the wrongdoer

The intention is necessary in criminal cases. Defendants can give reasonable explanations based on the tort and the person’s liability. The intention is important in crimes like trespass and false imprisonment. Torts are distinguished into two based on the intention of the tortfeasor. They are:

  1. Intentional Tort
  2. Unintentional Tort

An intentional tort is a tort that is done with complete knowledge of the outcome and the risk of the consequences. These torts are committed to causing hurt to another person. Some of them are:

  • Assault
  • Battery
  • Trespass

Unintentional torts are torts that are committed without the knowledge of the outcome. It might also be that the tortfeasor could not expect the result of the act. Unintentional torts include Negligence. To prove the violation of legal rights, a person needs to know the maxims of Injuria Sine Damno and Damnum Sine Injuria.

Injuria sine damnum: Injuria means an injury or a violation of legal rights. Damnum means damage. The maxim here translates to injury without damage. It is actionable under the law of torts. Infringement of legal rights allows him to gain compensation.

Bhim Singh v. State of Jammu and Kashmir[1] In the instant case, the plaintiff was a member of parliament who was not allowed to enter the Assembly. Here, it is the legal right of the Member of Parliament to enter the Assembly. Similarly, in the case of Ashby v. White[2]the plaintiff was not allowed to vote; the defendant argued that even though the plaintiff did not cast his vote, the intended member who the plaintiff wanted to vote, won the election. There is no damage to the plaintiff. The court in the case allowed him to claim compensation because voting is a legal right.

Damnum Sine Injuria: This maxim translates to “damage without injury”. It is considered a moral wrong. In damnum sine injuria, there is no infringement of rights. Therefore it is not actionable in a court of law. In the case of Gloucester Grammar School[3], the defendant started another school right beside the plaintiff’s school. Here, there is no infringement of a legal right. So, it is not actionable. The court mentioned that this is merely competition, and the competitor cannot sue others for the loss.

There are eight defences that the defendant can use in case of tort. They are:

  • Volenti Non-Fit Injuria
  • Plaintiff is the wrongdoer
  • Private defence
  • Inevitable Accident
  • Act of God
  • Necessity
  • Mistake
  • Statutory Authority

Volenti Non-Fit Injuria: This defence is based on the consent of the plaintiff. The maxim translates to “to a willing person, it is not wrong”, or “the one who volunteers, no harm is done.” Rescue cases are an exception to this maxim. There is another maxim under the purview of this maxim, “Scienti Non-Fit Injuria”, which translates to knowledge of risk is not equal to the consent of the risk. The consent should be free from any flaw, and the consent might be expressed or implied. It can be understood by the following case.

Hall v. Brooklands Auto Racing Club[4]

The plaintiff went to a racing club to watch a race in this instant case. While the race was going on, two cars on the track met with an accident where the parts hit the plaintiff, seated nearby. The plaintiff filed a case for damages. The court mentioned the maxim’s applicability and stated that the plaintiff could claim no damages as he waived his rights when deciding to watch the race. The defendant should act according to the consent of the plaintiff. The rule above can be understood from Lakshmi Rajan v. Malar Hospital,[5] where the plaintiff consented to the hospital to remove a clump. But, the defendants removed the uterus from her body. When she got to know about this, she filed a suit against the hospital and succeeded.

Plaintiff is the wrongdoer: When there is a wrong on the plaintiff’s side, there is no compensation to be awarded. Ex turpa causa non-oritur actio means no action arises from an immoral cause. You can’t file a suit when you lose your dog and get damaged by another person. Here you can’t sue that person because you are the one who is negligent in letting your dog free.

Inevitable Accident: The defence of inevitable accident is used when there is Negligence when it was unintended by the defendant. It was not foreseeable and can’t be anticipated. In the case of Stanley v. Powell,[6] there were two persons i.e., plaintiff and defendant who went hunting, where the defendant fired a shot. Due to a tree, the bullet turned back and hit the plaintiff. It was unintended by the plaintiff.

Act of God: Act of God is similar to an inevitable accident where there is only one difference: the damage caused is due to a natural force and not by a human. Nichols v. Marsland[7] is a case where the defendant had a lake in his premises that was overflowing due to heavy rainfall in that area, which destroyed the plaintiff’s house.

Necessity and Private defence: Private defence is where the plaintiff committed a wrong, but in the necessity, the plaintiff had to do the act to prevent greater harm.

Leigh v. Gladstone[8]:It is a case where the plaintiff filed a battery suit on the defendant. The plaintiff here was on a hunger strike; the defendant forcefully fed the plaintiff. The defendant used the defence of necessity as he was trying to save his life.

Statutory Authority: A tort is not actionable when done under the provision of a statute. The remedy here is compensation for the damage.

The famous case of Rylands v. Fletcher[9]The court gave the applicability of strict liability in Rylands v. Fletcher. The defendant who had a mill hired an independent contractor to build a reservoir in his land. The contractor knew that there were mineshafts below the ground. Even after knowing the existence, the contractor didn’t mention them to the defendant and built the reservoir. The plaintiff, a neighbour, had to bear loss due to the defendant’s act. The House of Lords delivered a judgment that the defendant should bear the liability of loss caused.

Strict Liability

There are essentials in strict liability. They are:

  1. A dangerous thing
  2. Escapes
  3. Prima facie liability

If any dangerous thing escapes from the defendant and causes loss to the plaintiff, the liability is strict, and the defendant should cover the loss to the plaintiff.

Conclusion

When a person commits a tortious act, the victim should recover the loss from the tortfeasor. Section 2(m) of the Limitation Act, 1963 specifies tort as any civil wrong other than a breach of trust and breach of contract. When multiple persons commit a tort, they are called joint tortfeasors. The main objective of the law of torts is to compensate the victims for the tortious act committed by the others.

Author(s) Name: Koushik Chittella

References:

[1] Bhim Singh, Mla v. State Of J & K And Ors., (1985) 4 SCC 677

[2] Ashby v. White, (1703) 92 ER 126

[3] Gloucester Grammar School, (1411), Y. B. 11 Hen. 4, f. 47, pi. 19

[4] Hall v. Brooklands Auto Racing Club, (1933) 1 KB 205

[5] Lakshmi Rajan v. Malar Hospital, 2 (2007) CPJ 17 NC.

[6] Stanley v. Powell, [1891] 1 QB 86

[7] Nichols v. Marsland, (1876) 2 ExD 1

[8] Leigh v. Gladstone, (1909) 26 T.L.R 139.

[9] Rylands v. Fletcher, (1868) LR 3 HL 330.

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