LAW OF TORTS- STUDY NOTES, MAY 2021
Introduction
The word tort has been derived from the Latin “tortus” which means crooked or twisted. In
French, “tort” means a wrong. In law, “tort” denotes certain civil wrongs. It means, a tort is a
civil wrong. Sir F. Pollock has defined tort as "An act which causes harm to a determinate
person, whether intentionally or not, not being a breach of duty arising out of personal relation or
contract, and which is either contrary to law, or an omission of a specific legal duty, or a
violation of an absolute right".
Every tort results from the breach of a certain duty which is primarily fixed by law unlike other
civil wrongs such as breach of contract, where the duty in question is fixed by the parties
themselves. Thus, the duty not to defame, injure or damage the property of any person is one
fixed by the law and its breach may constitute a tort, whereas the duty to supply goods under a
contract of sale is a duty created by the parties themselves in their contract. In tort, the duty is
imposed on persons generally, i.e. on every individual, but in other cases the duty is imposed
only on the parties concerned, e.g. the duties created by a contract are imposed only on the
parties to the contract and on no one else. Similarly, the duty in tort is owed to every other
person, unlike in contract cases where one contracting party owes his contractual obligation to
the other contracting party and to no one else.
A tort, as such, differs from other civil wrongs in a number of respects. It is a common law
wrong which is usually remedied by an award of "Unliquidated Damage". Unliquidated damages
are those whose quantum or assessment is left to a court for determination at the court’s
discretion. These are distinct from liquidated damages which are fixed by the plaintiff. Certain
other remedies are also available which will be considered when the various torts are separately
dealt with
A person who commits a tort is called a tortfeasor. Where two or more persons commit a tort,
they are known as joint tortfeasors. They may be sued jointly, or any one of them may be sued
for the whole of the damage. In case of joint tortfeasors, there is a right of contribution, under
which the court may apportion the damages between them in such a way as is just, having regard
to their respective degrees of blame.
, Function of the Law of Torts
The primary function of the law of torts is to compensate persons injured by the civil wrongs of
others, by compelling the tortfeasor to pay for the damage occasioned by his tort. Besides this,
there are certain other functions and these include the following:
1. To Determine Rights between Parties to a Dispute: A party to a dispute may bring an action
for a declaration of his rights; and once the court makes a declaration, the rights of the parties are
determined.
2. To Prevent a Continuance or Repetition of Harm: When the injury complained of is of a
continuous nature or likely to be repeated by the tortfeasor, the injured party may be granted an
injunction to prevent its continuance or repetition, e.g. in cases of trespass to land.
3. To Protect Certain Rights Recognized by Law: There are certain rights which every
individual is entitled to which are recognized by law. These rights are protected by the law of
torts e.g. a person's reputation or right to good name is protected by the tort for defamation
4. To Restore Property to its Rightful Owner: Where property is wrongly taken away from its
rightful owner or otherwise dealt with contrary to his rights, he may seek a restitution of the
property or its value since the wrongful act amounts to the tort of trespass to goods (or land).
Nature of tortuous liability
A tort is a civil wrong which is usually remedied by an award of unliquidated damages. Prof.
P.H. Winfield asserts that "tortuous liability arises from the breach of a duty primarily fixed by
law; such duty is towards persons generally, and its breach is redressable by an action for
unliquidated damages".
Every person is under a duty to compensate for his wrongful acts which have resulted in injury to
another person. It is this duty to compensate that determines his liability in tort. Generally, the
plaintiff must prove that he has suffered harm and that there has in consequence been a violation
of his legal right. Some civil wrongs are actionable even if no damage is suffered e.g. trespass to
land. Whether the plaintiff has any remedy in some cases of tort depends on the following two
principles of general application:-
1. Damnum Sine Injuria
Introduction
The word tort has been derived from the Latin “tortus” which means crooked or twisted. In
French, “tort” means a wrong. In law, “tort” denotes certain civil wrongs. It means, a tort is a
civil wrong. Sir F. Pollock has defined tort as "An act which causes harm to a determinate
person, whether intentionally or not, not being a breach of duty arising out of personal relation or
contract, and which is either contrary to law, or an omission of a specific legal duty, or a
violation of an absolute right".
Every tort results from the breach of a certain duty which is primarily fixed by law unlike other
civil wrongs such as breach of contract, where the duty in question is fixed by the parties
themselves. Thus, the duty not to defame, injure or damage the property of any person is one
fixed by the law and its breach may constitute a tort, whereas the duty to supply goods under a
contract of sale is a duty created by the parties themselves in their contract. In tort, the duty is
imposed on persons generally, i.e. on every individual, but in other cases the duty is imposed
only on the parties concerned, e.g. the duties created by a contract are imposed only on the
parties to the contract and on no one else. Similarly, the duty in tort is owed to every other
person, unlike in contract cases where one contracting party owes his contractual obligation to
the other contracting party and to no one else.
A tort, as such, differs from other civil wrongs in a number of respects. It is a common law
wrong which is usually remedied by an award of "Unliquidated Damage". Unliquidated damages
are those whose quantum or assessment is left to a court for determination at the court’s
discretion. These are distinct from liquidated damages which are fixed by the plaintiff. Certain
other remedies are also available which will be considered when the various torts are separately
dealt with
A person who commits a tort is called a tortfeasor. Where two or more persons commit a tort,
they are known as joint tortfeasors. They may be sued jointly, or any one of them may be sued
for the whole of the damage. In case of joint tortfeasors, there is a right of contribution, under
which the court may apportion the damages between them in such a way as is just, having regard
to their respective degrees of blame.
, Function of the Law of Torts
The primary function of the law of torts is to compensate persons injured by the civil wrongs of
others, by compelling the tortfeasor to pay for the damage occasioned by his tort. Besides this,
there are certain other functions and these include the following:
1. To Determine Rights between Parties to a Dispute: A party to a dispute may bring an action
for a declaration of his rights; and once the court makes a declaration, the rights of the parties are
determined.
2. To Prevent a Continuance or Repetition of Harm: When the injury complained of is of a
continuous nature or likely to be repeated by the tortfeasor, the injured party may be granted an
injunction to prevent its continuance or repetition, e.g. in cases of trespass to land.
3. To Protect Certain Rights Recognized by Law: There are certain rights which every
individual is entitled to which are recognized by law. These rights are protected by the law of
torts e.g. a person's reputation or right to good name is protected by the tort for defamation
4. To Restore Property to its Rightful Owner: Where property is wrongly taken away from its
rightful owner or otherwise dealt with contrary to his rights, he may seek a restitution of the
property or its value since the wrongful act amounts to the tort of trespass to goods (or land).
Nature of tortuous liability
A tort is a civil wrong which is usually remedied by an award of unliquidated damages. Prof.
P.H. Winfield asserts that "tortuous liability arises from the breach of a duty primarily fixed by
law; such duty is towards persons generally, and its breach is redressable by an action for
unliquidated damages".
Every person is under a duty to compensate for his wrongful acts which have resulted in injury to
another person. It is this duty to compensate that determines his liability in tort. Generally, the
plaintiff must prove that he has suffered harm and that there has in consequence been a violation
of his legal right. Some civil wrongs are actionable even if no damage is suffered e.g. trespass to
land. Whether the plaintiff has any remedy in some cases of tort depends on the following two
principles of general application:-
1. Damnum Sine Injuria
