Law Of Tort
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Meaning of term “Tort”
The term Tort corresponds to the English word “Wrong” and Roman terminology of “Delict” the very word Tort is a derivation of Latin word “Tortum” which means to “Twist”
In a plane language the term is interpreted as the breach of some duty, independent of some contract.
Difference between tort and torts:
The term “torts” is often used as a substitute of Law of Torts whereas the term “tort” connotes the tortuous act.
Constituent elements of tort:
Where if the behavior of anyone covers following three elements; the behavior is called a tort and is subject to Law of Torts;
Commission of wrongful act by a person;
The wrongful act cause some legal damage to the other person; and
Law provides remedy against such legal damage.
Explanation of the term “Wrongful Act”:
In order to claim of damages a person has to establish that a wrongful act was done to him by the defendant. An act is wrongful if it advertently or inadvertently harms the legal right of the person complaining or it may be a breach or duty on the part of tort-feasor. Violation of right of the person or interruption of the peaceful exercise of the right of anyone is the touchstone for the determination of the nature of the right. An act is wrongful if it cast a negative effect on the right of the person; no matter a breach of duty takes place or not. An innocent act may also wrongfully affect the right of anyone; for instance; erection of anything on one’s own land which may obstruct the direct access to sun light of another.
Legal right:
Now it is imperative to determine what the legal right is? Austin gives us a brief and comprehensive definition of right that it is a faculty which resides in a determinate party or parties by virtue of a given law which avails against a party or parties.
Legal Damage:
A wrongful act does not amount to a tort in absence of legal damage. Such damage can be actual, pecuniary or of any other type and it may be in the sense of loss of money, comfort, service health or reputation. However some claims are actionable per se; it means that an action is maintainable against some act even if no damage is caused to the aggrieved; such as action against slander.
There are two maxims which explain the importance of damages in law of Tort;
Demnum sine injuria;
Injuria sine demnum.
Demnum sine injuria:
Here demnum means damage; word sine denotes of “without” while injuria correspond to legal injury. In simple it is damage without injury. Here law says that if someone sustains some kind of damage without causation of any legal injury; no cause of action arises.
Example:
In a leading case law; titled Gloucester Grammar School; the defendant a schoolmaster set up a rival school next door to the plaintiff with the result that the boys from the plaintiff’s school flocked to the defendant’s school, plaintiff sued the defendant for damages. It was held that no suit could lie on the ground of “bona fide competition can afford no ground of action, whatever damage it may cause.”
In Acton vs. Blundell; a landowner in carrying on mining operations in his land in the usual manner drained away water from the land of another owner through which water flowed in a subterraneous course to his well and it was held that the latter had no right to maintain an action.
Injuria sine demum:
This is another case in this situation a person suffers a legal injury but suffers no actual damage. In this situation the aggrieved person has right to claim damages. This maxim is invoked in those cases where the law presumes legal damage as obvious ramifications of tortuous act e.g. slander. In other words where law recognizes any “injury” action can be brought against such injury without any necessity of proving damage.
Examples:
In the case of Marxell vs. William, a banker; having sufficient funds belonging to the customer refused to honor his cheque. Although the customer suffered no damage court held that he is entitled to damage.
In Ashby vs. White, the defendant a returning officer wrongfully refused to register a duly tendered vote of the plaintiff, a legally qualified voter, and the candidates for whom the voter was tendered was elected, and no loss was suffered by the rejection of vote, nevertheless it was held that an action lay. In this case the returning officer had acted maliciously.
Legal remedy:
tortuous act which is recognized as an injury cannot be challenged in any court of law until a legal remedy is recognized against it. Here it is necessary to explain that development of the law of tort is consequence of growth of law of equity. Law of tort is based upon the principle of ubi jus ibi remedium. Thus in almost every case where a person suffers any injury a corresponding remedy is provided.
The term Tort corresponds to the English word “Wrong” and Roman terminology of “Delict” the very word Tort is a derivation of Latin word “Tortum” which means to “Twist”
In a plane language the term is interpreted as the breach of some duty, independent of some contract.
Difference between tort and torts:
The term “torts” is often used as a substitute of Law of Torts whereas the term “tort” connotes the tortuous act.
Constituent elements of tort:
Where if the behavior of anyone covers following three elements; the behavior is called a tort and is subject to Law of Torts;
Commission of wrongful act by a person;
The wrongful act cause some legal damage to the other person; and
Law provides remedy against such legal damage.
Explanation of the term “Wrongful Act”:
In order to claim of damages a person has to establish that a wrongful act was done to him by the defendant. An act is wrongful if it advertently or inadvertently harms the legal right of the person complaining or it may be a breach or duty on the part of tort-feasor. Violation of right of the person or interruption of the peaceful exercise of the right of anyone is the touchstone for the determination of the nature of the right. An act is wrongful if it cast a negative effect on the right of the person; no matter a breach of duty takes place or not. An innocent act may also wrongfully affect the right of anyone; for instance; erection of anything on one’s own land which may obstruct the direct access to sun light of another.
Legal right:
Now it is imperative to determine what the legal right is? Austin gives us a brief and comprehensive definition of right that it is a faculty which resides in a determinate party or parties by virtue of a given law which avails against a party or parties.
Legal Damage:
A wrongful act does not amount to a tort in absence of legal damage. Such damage can be actual, pecuniary or of any other type and it may be in the sense of loss of money, comfort, service health or reputation. However some claims are actionable per se; it means that an action is maintainable against some act even if no damage is caused to the aggrieved; such as action against slander.
There are two maxims which explain the importance of damages in law of Tort;
Demnum sine injuria;
Injuria sine demnum.
Demnum sine injuria:
Here demnum means damage; word sine denotes of “without” while injuria correspond to legal injury. In simple it is damage without injury. Here law says that if someone sustains some kind of damage without causation of any legal injury; no cause of action arises.
Example:
In a leading case law; titled Gloucester Grammar School; the defendant a schoolmaster set up a rival school next door to the plaintiff with the result that the boys from the plaintiff’s school flocked to the defendant’s school, plaintiff sued the defendant for damages. It was held that no suit could lie on the ground of “bona fide competition can afford no ground of action, whatever damage it may cause.”
In Acton vs. Blundell; a landowner in carrying on mining operations in his land in the usual manner drained away water from the land of another owner through which water flowed in a subterraneous course to his well and it was held that the latter had no right to maintain an action.
Injuria sine demum:
This is another case in this situation a person suffers a legal injury but suffers no actual damage. In this situation the aggrieved person has right to claim damages. This maxim is invoked in those cases where the law presumes legal damage as obvious ramifications of tortuous act e.g. slander. In other words where law recognizes any “injury” action can be brought against such injury without any necessity of proving damage.
Examples:
In the case of Marxell vs. William, a banker; having sufficient funds belonging to the customer refused to honor his cheque. Although the customer suffered no damage court held that he is entitled to damage.
In Ashby vs. White, the defendant a returning officer wrongfully refused to register a duly tendered vote of the plaintiff, a legally qualified voter, and the candidates for whom the voter was tendered was elected, and no loss was suffered by the rejection of vote, nevertheless it was held that an action lay. In this case the returning officer had acted maliciously.
Legal remedy:
tortuous act which is recognized as an injury cannot be challenged in any court of law until a legal remedy is recognized against it. Here it is necessary to explain that development of the law of tort is consequence of growth of law of equity. Law of tort is based upon the principle of ubi jus ibi remedium. Thus in almost every case where a person suffers any injury a corresponding remedy is provided.
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