Introduction to the 50 Important Terms of Law of Tort & Development of Law of Tort in India

Important Terms of Law of Tort

1. Introduction of Law of Tort:

The law of tort is based on common law. Tort is breach of some civil independence of contract for which compensation may be recoverable. If there is an injury for which no compensation is recoverable is not tort. It is still growing. It is not the part of statue law. The word tort is derived from Latin word “Tortum” which means to twist or “conduct” which is twisted.

According to Salmond Tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of trust or other merely equitable obligation.

Law of tort protects right in rem available against the whole world

2. Actionable per se:

An action is actionable per se when it does not require the allegation or proof of additional facts to constitute a cause of action. A tort is actionable per se when it does not require any allegation or proof that damage has been suffered. There are some torts, which are actionable per se. In cases of these torts, tort-feasor is liable merely because he has done some particular act even though affected person has not suffered the slightest harm.

Following acts are actionable per se:

i) Libel

(ii) False imprisonment

3. Defamation:

Defamation is a statement which is made to expose a person to hatred, contempt, ridicule or to injure him his trade profession and business or to cause him to be shunned in society.

Kinds of Defamation:

Defamation has following two kinds.

i) Libel defamation

ii) Slander Defamation

4. Libel :

Libel is publication of false defamatory statement in writing in order to injure the reputation of another person without lawful justification.

According to John Burke:

Libel is a form of defamation by means of writing, print or some permanent form.

Libel is a defamatory statement, if published, printed or written concerning a person is calculated to lower his without lawful justification excuse.

There are following four essential elements of libel:

i) False Statement

ii) Writing

iii) Defamatory

iv) Publication

Defamation of a person is understood false until it is proved to be true.

5. Slander:

Slander is a false defamatory verbal, oral or spoken statement in order to injure the reputation of another person without lawful justification.

It is important to mention that for constitution of a tort of defamation the words must be defamatory. The words may be defamatory in their ordinary and natural meaning or in view of some special fact.

It is compulsory that the word must refer to the plaintiff in the tort of defamation.
There are following five basic elements of Slander:

i. False Statement

ii. Verbal

iii. Defamatory

iv. Publication

v. Special Damage

Defamation of a person is understood false until it is proved to be true.

6. Malice

In Legal sense, it means a wrongful act, which is done intentionally without any just cause or excuse or without reasonable and probable cause.

In broad sense, it means any improper motive or intent to do a wrongful act or to inflict injury upon a person without just cause or excuse.

Malice means any motive other than the desire to bring a party to justice. When any act is done without reasonable and probable cause, it will be understood that it is done with malice.

Malice of agent will be imputed to the Principal.

7. Malice in Law :

Malice in Law means to do a wrongful act without just cause or excuse. Malice in Law is also called “Implied Malice” Technical Malice or Legal Malice.

8. Malice in Fact :

Malice in Fact means an act done with ill will towards an individual. Malice in Fact depends upon motive.

Malice in Fact is also called “Express Malice”.

9. Res Ipsa loquitur :

Res ipsa loquitor is a Latin maxim, and this maxim means “the thing speaks for itself”. It is a doctrine of circumstantial evidence. In personal injury law, the concept of res ipsa loquitur operates as an evidentiary rule, which allows affected person to establish a rebuttable presumption of negligence on the part of tort-feasor through the use of circumstantial evidence.

The general rule is that affected person is to prove duty of care, breach of duty and causation to prove negligence against tort-feasor. In other words, direct evidence is required to prove negligence on the part of tort-feasor. However, there are some cases where no direct evidence is present against commission of negligence, but there are certain circumstantial facts, which establish negligence on the part of the tort-feasor. This rule of evidence is called “res ipsa loquitor”.

10. Right in Rem :

Right in Rem means a right against the whole world.

Illustration: „A‟ has not to be harmed by any person. This is right in rem. On the other hand, „A‟ has entered into a contract with „B‟ and „B‟ has broken the contract. „A “can enforce this right against „B‟. This is known as right in personam.

11. Right in Personam :

Right in persosnam means a right against a definite person.

Illustration: „A‟ has not to be harmed by any person. This is right in rem. On the other hand, „A‟ has entered into a contract with „B‟ and „B‟ has broken the contract. „A “can enforce this right against „B‟. This is known as right in personam.

12. Contemptuous Damages :

“Contemptuous Damages” means the damages, which is awarded when court considers that an action relies on a petty ground and should not have been brought before court of law. Normally “Contemptuous Damages” is awarded in cases involving commission of a technical Tort.

13. Negligence :

Literal meaning of negligence is Carelessness. Salmond defined Negligence as “Absence of such care as it was the duty of defendant”.

Austin says about definition of Negligence “Negligence is breach of such duty which is imposed by law”.

There are following three basic elements of Negligence:

i. Existence of duty

ii. Breach of duty

iii. Legal Damage

14. Contributory Negligence :

Contributory negligence means negligence of one person in not avoiding consequences arising from negligence of another person when mean and opportunity are afforded to do so.

In Black‟s Law Dictionary “Contributory Negligence” defined as: A Plaintiff‟s own negligence that played a part in causing the plaintiff‟s injury and that is significant enough to bar the plaintiff from recovering damages.

15. Public Nuisance :

Nuisance is derived from the French word “nuire” which means “to cause in convenience”. Nuisance means anything which is done to hurt anyone or to the enjoyment of one‟s property.

Public nuisance is an act affecting the public at large, or some considerable portion of it and with be interference with the rights as to health, safety comfort or which members of society otherwise enjoy.

Common examples of Public Nuisance are as under: (a) The unlawful use of loud speaker (b) Discharge the chemical waste in the river

16. Prima facie :

Prima facie is a Latin expression, which means on its first encounter or at first sight. As prima means first and facie means face, Therefore prima facie literally means at first appearance.

The use of principle of prima facie had given birth to intentional or prima facie tort.

Infliction of harm is called intentional or prima facie tort when some act or series of acts inflicts an unjustified and intentional harm on another person and such infliction result in damages

17. Trespass ab initio:

Trespass ab initio means a trespass by a person, who initially enters premises or land by right or licence or authority of law, but subsequently abuses the authority by an act of misfeasance to such an extent that he loses his privilege against tortuous liability and he becomes trespasser from the beginning.

A person enters a yard to clean the swimming pool. After cleaning the swimming pool, he starts swimming in the swimming pool. In this case, his act of swimming amounts to trespass ab anitio.

18. Distress Damage Feasant :

Where the owner or occupier of the land finds any cattle, which trespasses on his property and which is unlawfully on his land and causes damage, he has right to seize and detain it, and can refuse its release unless owner of the cattle pays compensation for the damage. This remedy is called distress damages feasant.

Distress damage feasant is a self-help remedy, which permits a possessor of land to impound a cattle, which is wrongfully on his land, and which serves as security for the payment of compensation for that damage, which is caused by the cattle.

19. Abatement of Nuisance :

According to Winfied: “Nuisance is incapable of exact definition but for the purpose of law of torts it may be described as unlawful interference with a person‟s use or enjoyment of land or of some right over or connection, with it”.

Abatement is extra judicial remedy. It means the removal of a nuisance by the injured party or who suffered without recourse to legal proceedings.

For the purpose of abatement and removal of Nuisance following conditions must be fulfilled:

a) Peacefully

b) No damage should be caused

c) Notice should be given of necessity

d) Without danger to life

20. Vis major :

Vis major consists of Latin words, and these Latin words mean superior force.

When some loss has been resulted immediately from a natural cases without human intervention and could have not been prevented by exercise of prudence, diligence and care, no person can be held liable for such loss. This rule is called “vis major”.

Vis major is used in the civil law in nearly the same way in which the words “Act of God” is used in the Common Law.

21. Malicious Prosecution :

Tort of malicious prosecution is defined as filing a criminal case by one person against another person with malice and without reasonable and probable cause.

It is actionable on proof of damage. The action of plaintiff under malicious prosecution would be dismissed if he fails to prove damage from his malicious prosecution.

There are five pre-requisite for malicious prosecution under the law of torts.

i. Prosecution by defendant

ii. Termination of prosecution in favor of Plaintiff

iii. Absence of reasonable and probable cause

iv. Malicious Intention

v. Special damage

22. False Imprisonment :

False imprisonment means a total restraint of the liberty of a person for however short a time without lawful excuse.

Every confinement of the person is an imprisonment, whether it is in a common prison, or in a private house or in the stocks, or even by forcible detaining in a public streets.
False imprisonment is defined as the infliction of bodily restraint which is not expressly or impliedly authorized by law.

False imprisonment may also known as “False confinement or detention”.

Essential elements of false imprisonment are as under:
i. Total restraint of the liberty of a person

ii. Detention must be unlawful.

23. Assault :

It is unlawful lying of hands by one person upon the body of another person with an intention and apparent ability to do violence to the assaulted person.
According to Winfield : Assault is an act of defendant which causes to the plaintiff reasonable apprehension of the infliction of battery on him by the defendant.

Illustration „A‟ pointed at „B‟ an unloaded pistol would create fear and apprehension in „B‟ of injury to his body, it would be an assault by „A‟ against „B‟.

24. Battery :

Battery is actual striking (hit) of another person or touching of another person in angry, rude or insolent manner.
Essential Elements of Battery :

There are following main two essential parts of battery:

i. Intention

ii. Physical contact
Every Battery includes assault and every assault does not include battery.

Example: To throw water at a person is an assault, if any drop fall upon him, is a battery.

25. Trespass to Land :

“Trespass to Land” is the wrongful and unwarrantable entry, upon the land of another or any direct and immediate act of interference without the possession of land.

Trespass to land may be committed in the following three ways:

a) By entering upon the land of another.

b) By remaining there without permission. or

c) By doing any act of interference. In case of “Trespass to Land” plaintiff has both remedies, civil and criminal.

26. Vicarious Liability :

The word vicarious is taken from the word VICAR which means representative, liability, or responsibility of one person for tort committed by others.
Black’s Law Dictionary introduced “Vicarious Liability” in the following words: Liability that a supervisory party bears for the actionable conduct of a subordinate or associate.
Fleming says about “Vicarious Liability” : Vicarious liability is a principle where the law holds one person responsible for the misconduct of another.
Vicarious liability is not common in criminal law.

Therefore, a person cannot be punished for a crime committed by another. Vicarious liability for crimes is governed by Sec. 34 and Sec. 149 PPC which held person liable for the acts of others.
Civil Law recognizes the principle of vicarious liability. The right of injured party to receive redress continues against the representative of the dead.
Vicarious Liability rises due to any one of the following facts:

i. Ratification

ii. Abetment

iii. Certain Relationship

27. Strict Liability : Liability that does not defend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe.

Wrong which do not require wrongful intent of Negligence are known as the wrong of strict liability. In such cases, a person is punished for committing wrong even if he has not guilty mind.

Strict liability is imposed chiefly where it will be hard to prove by evidence the intention or negligence of the offender.

Mens Rea is generally irrelevant in civil proceeding as the object is to compensate the plaintiff for his loss and not to punish the defendant, so the rule of strict liability is generally applied in civil cases.

In certain civil actions, the object of the law is to punish the defendant and strict liability is not imposed

e.g., malicious prosecution, negligence etc. Generally in criminal cases, there is no criminal liability unless mens rea is present and strict liability is not imposed.

28. Introduction of Damages

“Damages” is the compensation in form of money.

Damages is pecuniary compensation claimed by the injured party and awarded by the court of law.

The most important objects of damages in law of tort are as under:

i. To compensate a person for the tort committed against him.

ii. To penalize the tort-feasor for the tort committed by him.

iii. To provide machinery of law to settle dispute by lawful means.

Value of damages is determined by the concerned court according to the cause of damage, remoteness of damage and other circumstances.

29. UBI JUS IBI REMEDIUM : Jus means legal authority to do or to demand something and remedium means the right of action.

General meaning of this maxim is “there is no wrong without a remedy”. Therefore, when a person suffered loss and damage, adequate remedy will be awarded to him by court of law.

This doctrine will not apply in the following circumstances :

i. When a person destroyed, lost or waived his right to an equitable remedy by his own act

ii. When a moral right is infringed

30. Injuria Sine Damnum

Injuria means injury and damnum means damage.

So it means injury without damage.

Every violation of legal right is actionable without the proof of damage.

There is a legal loss without actual loss. Every person has an absolute right to the protection of his body, property and reputation.

Whenever a person sustains an injury he may bring an action without proving special damage.
The example of “Injuria Sine Damnum” is Trespass to property

31. Damnum Sine Injuria :

It means damage without injury.

It is just reverse of injuria sine damnum. There is a legal loss without actual loss. It is not actionable perse.

32. Private Nuisance :

Private Nuisance means noising or authorizing the use of one‟s property so as to material effect, physical comfort of another person.

Private Nuisance may be by anyone of following ways:

i. Wrongful disturbance of easement.

ii. Wrongful escape of deleterious substances.
In Private Nuisance only civil remedy may be availed by the plaintiff. There are following three remedies for Private Nuisance:

a) Abatement of Nuisance

b) Damages

c) Injunction

33. Injunction :

Injunction is a judicial order by which courts direct a party either to do or to abstain from doing a particular act.

There are following main objects of Injunction:

i. To prevent violation of right

ii. To establish some one‟s right.

iii. When damages is unadequate remedy.

Normally in the following cases, Injunction is granted by courts of law:

i. Wrongful sale

ii. Publication of Libel

iii. Violation of right of way

iv. Nuisance

v. Tesspass

34. Mayhem :

Mayhem is also called “Dismemberment”.

Mayhem is a bodily harm by which a person is deprived of such organ or sense of his body which can be used in fighting to defense himself or offend has enemy.

Example: The cutting off or disabling or weakening a man‟s hand or finger or string out his eyes or fore tooth or castrating his, will be mayhem.

35. Remedy :

Remedy means to compensate injured party, to do justice between wrong door and aggrieved party.
There are two kinds of remedies :
i. Judicial Remedies: “Judicial remedies” are those remedies which are available to aggrieved party by law through court.

ii. Extra Judicial Remedies: “Extra Judicial remedies” are those remedies which are available to aggrieved party outside the court of law by by his own act in certain cases of tort.

36. Nominal Damages :

Nominal damages are awarded consisting of that sum of money which may be spoken of but has no existence in term of money.
Example: The purpose of nominal damages merely to establish plaintiff‟s right. These damages are given in case of simple “Tress Pass”.

37. Abuse of Legal Process :

To put into force the process of the law maliciously and without any reasonable and probable cause, it is called abuse of legal process.

It is necessary that termination of proceeding will be taken in plaintiff‟s favor, but if the defendant has dropped the proceedings, it is not necessary for the plaintiff to show that the proceedings ended his favor.

Example: Examples of abuse of legal process are following:

i. Arrest with illegal warrant

ii. Search with illegal warrant

iii. Malicious attachment before judgment.

38. Difference between Tort and Crime :

i. In tort infringement of a private rights absolute belonging to an individual of the state. In Crime violation of the public right whole community is the “aggrieved person”.

ii. In tort conduct of proceeding by the aggrieved private party. In crime in the name of state the state is to be remedied and not the private party.

iii. In tort remedial is by way of pecuniary compensation in the form of money. In crime a guilty is punishment by corporeal punishment or imprisonment etc.

39. Difference between Libel and Slander :

There are six main differences between libel and slander which are as under:

I. Form: Libel is defamation in written form and “slander” is defamation in verbal for

II. Tort And Crime: In English law “Libel” is tort and crime where as “salander” is only tort.

III. Actionable perse: Libel is actionable perse and slander is not actionable perse.

IV. Permanent And Changeable: Libel is always in permanent form where as slander is in changeable.

V. Period of Limitation: i. In English law the period of limitation for libel is 6 years where as in slander period of limitation is 2 years. ii. In Pakistani law period of limitation is 1 year for both libel & slander.

VI. Publisher & Repeater: In case of libel the actual publisher may be innocent person but in case of slander every repeater does it consciously and there for will be guilty.

40. Innuendo :

A statement which is apparently innocent but which the plaintiff in a defamation suit contends bears a meaning defamatory to him; if the plaintiff can prove that it would be regarded as having such a meaning, he can succeed.

41. Joint Tort feasors :

Two or more persons whose act, done in pursuance of a common intention, causes injury, their liability is joint and several so that the plaintiff can sue both or either. If in such a case one of them has had to pay damages, he can claim contribution from the other/others.

42. Differences between Assault and Battery : An assault can take place without a battery while a battery is always accompanied by an assault. An assault is threat of violence, but a battery is, in fact, violence.

43. Absolute Privilege :

Some members of society can make comments without the fear that they will be sued for defamation, and such liberty is available to them because they can claim privilege. It is known as absolute privilege.

In following cases, absolute privilege is available:

i. Parliamentary

ii. Judicial proceedings

iii. Military & naval proceedings

iv. State proceedings

v. Local Government proceedings

vi. Public inquiries

vii. Public shareholders meeting

viii. Sport proceedings

ix. Recreation association

44. Legal Damage : In common sense, it is defined as a loss due to injury to a person, property or reputation. It is second basic element of tort. The party injured party has to prove legal damage. It occurs when right in rem is violated.

45. Intention : Intention means mental attitude with which an individual acts. It determines the performance of a particular act or to act in a particular manner for a specific reason. It plays vital role in determining tortuous liability.

46. Felonious Tort : If the same wrongful act constitutes both a tort and crime, such wrongful act as called felonious tort.

The wrong-doer can be punished. Therefore, criminal remedy can be available in cases of felonious tort.

The wrong-doer to be compelled to pay damaged to affected person. Therefore, civil remedy can also be available in cases of felonious tort.

In case of felonious tort, civil and criminal remedies are not alternative for each other. In case of felonious tort, civil and criminal remedies are concurrent.

47. Aerial Trespass :

It is trespass in the airspace above land. A person commits aerial trespass when he enters another person‟s land at such height that such entry not only violates another person‟s right to enjoy his property, but also violates another person‟s right of ordinary use of his land.

Which means that a person, who owns a land, holds title over this land up to the heavens and down to the depths of the earth.

It reveals that owner of land is entitled to limitless air space over surface of his land. Therefore, any interference into such limitless airspace amounts to aerial trespass.

48. Difference between Mayhem and Battery :

The wrong amounts to mayhem when some person is deprived of any of his fighting limb while the wrong amounts to battery when some person is deprived of any of that limb, which is not fighting limb.

Therefore, loss of hands, fingers, legs or castration of some person amounts to mayhem, while cutting of ears or nose amounts to disfigurement, which causes only battery.

49 Difference between Damage and Damages :

Damages are not the plural form of damage. The damage means legal loss or violation or infringement of legal right.

On the other hand, damages mean a pecuniary or monetary compensation in form of money.

50. Breach of Contract :

The failure of a party to a contract to perform his obligations under the contract.

The clear party can claim damages, and, in certain cases obtain specific performance, i.e., an order from a Court that the party does perform his obligation.

Development of Law of Tort in India

• in India tort existed from the pre independence time the word Jinnah in Sanskrit used in ancient Hindu law which means taught however  as in Hindu law and Muslim law of tort is available but in very narrow conception so talk as of English law is required to adopt.

• as per increase in population of India the practice of injury without damages and damages without violation of legal rights are increased in practice.

• law of tort that is taken from English law is basically based on equity justice and good conscience

• as per first case MC Mehta versus union of India justice Bhagwati observed that in English law of torts we have to need to involve new principal and laid on new norms which will be adequately deal with problems that arise in Indian society for Indian circumstances

• as per judicial thinker of our country they said that English law of tort need to be changed according to the Indian circumstances and society it need to have build through our own jurisprudence

• law of tort is an uncodified law which means they are not specific punishment for the wrongful act done so it is upto judiciary and judges that what punishment or fine they have decided for the wrongful act done

• in the developing era of law of tort in India it is need to qualify it and make the citizen aware about it there is least number of people who knows about this law as compared to US and UK law of tort is strictly applied there