| S. 2 (m), the Limitation Act, 1963. | Salmond |
| Tort means a civil wrong which is not exclusively a breach of contract or breach of trust” | It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. |
| Winfield | Fraser |
| Tortious Liability arises from the breach of a duty primarily fixed by the law : this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. | It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party |
| CASES | PRINCIPLES |
| Common law system − The legal system Which is followed from British . Where law originates from precedent (from judicial decisions) in absence of legislation. Custom . Start from Accused is innocentContinental system ( civil law)Law of torts is a branch of civil law. It is based on common law principle. Based on judgement of the court of law. Precedent. | |
| Torts | Crime |
| Infringement of a civil right or a private right of the party− private wrong | Infringement of a public right affecting the whole community − Private wrong |
| Wrong doer ( Tort feasor ) should pay the compensation according to the decision of court | Criminal is punished by the State as per provision of codified law |
| Affected or injured party may sue | The state is under a duty to institute criminal proceedings against the accused |
| Right to sue or to be sued survives to the successor ( Rose V Ford case) | The legal action dies with the person in crime subject to certain exception ( Actio personalis moritur cum persona − person action dies with the person) |
| Torts | Breach of contract |
| Infliction of injury without the consent of the plaintiff. Consent negatives liability under ” voilenti non fit injuria” − except in rescue cases ( Haynes V Harwood ) | Consent is the basic essential of all contractual obligation |
| No privity between party ( Donoghue V stevenson − negligence to consumer ) ( Grant V Austrial Knitting Mills − Legal neighbour ) | There is privity of contract between contracting parties |
| Violation of right in rem | Violation of right in personam |
| Injuria sine damno Violation of a legal right without causing any harm, loss or damage to the plaintiff.actionable without the proof of any damage or loss. For instance, trespass to land is actionable even though no damage, has been caused as a result of the trespass. | INTRO – DEFINITION – NATURE – SCOPE Liability − Breach of contract & NegligenceLaw assist those who are vigilance not ignorantThe claim for negligence in this case is founded on tort and not on contract.In either case, a breach of that duty is a tort which can be established without relying on any contract at all. |
| Ashby V. White 1703 2 Lord Raym 938 Plaintiff was prevented from voting by defendant CourtDo not occur any visible loss but his legal right is violate, thus he must be compensated by the defendant | Injuria sine damnum 1) Injuria − injury to legal right 2) sine −without 3) damno − damages, monetary loss. Principle− injury to legal right without any monetary loss is actionable Relevance of intention, motive and malice in Law of Torts |
| Bhim singh vd state of J&k Plaintiff MLA was wrongfully prevented by police from attending assembly session | njuria sine damnum The legal injury caused to the plaintiff without any damage to the physical injury. |
| White V. John warrick & Co Ltd ( 1953) 2 All ER 1021The plaintiff, a newsagent and tobacconist carried a business at Canonbury, entered into an arrangement with the defendants that they should supply him | Issues Whether there was negligence on the part of the defendant?Whether there was a breach of duty and contracts? |
| with a tradesman’s tricycle, a tricycle which has a large carrier in front, for the purpose of delivering the newspaper. The arrangement was embraced in a written contract dated Apr. 13, 1948. . On Saturday, June 3, a representative of the owners went to the plaintiff’s shop and left a tricycle which was out of order which was supposed to be a spare tricycle.The plaintiff didn’t examine the tricycle but soon rode it to go to his work. When he had gone about a quarter of a mile the saddle went forward in such a manner that he was thrown off the tricycle on the ground, and was injured.He said he got up and pushed the tricycle back to his shop, the saddle then sloping down on to the crossbar, and when he examined the tricycle, he found that the saddle was loose.He was not thought, at first to be badly hurt, but unfortunately, he had suffered an injury to his knee. He was in the hospital for some considerable time suffering from synovitis.PARKER. J. who heard the plaintiff’s claim said that, if he had found the plaintiff entitled to damages, he would have awarded £505. That was a provisional assessment and no more. The plaintiff took the matter to the Court and wanted the defendants to be held liable in tort (for negligence) as well as in contract. | Essentials of Negligence In an action for negligence, the plaintiff has got to prove the subsequent essentials: DUTY TO TAKE CARE:DUTY TO WHOM: In the case of Donoghue v. Stevenson , carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbour. Justifying so as to who is was the neighbour LORD ATKIN stated that the answer shall be “the persons who are so closely and directly stirred by my act who are needed to be taken in consideration are being so affected once I am directing my mind to the acts or omissions which are called in question”.DUTY MUST BE TOWARDS THE PLAINTIFF− It isn’t sufficient that the defendant owed a duty to take care. It must also be proved that the defendant owed a duty of care towards the plaintiff.BREACH OF DUTY TO TAKE CARE JudgementIt was stated by Lord Denning, that there were two possible heads of liability on the defendants, one for negligence, the other for breach of contract. The liability for breach of contract was more strict than the liability for negligence. The defendants could have been liable in contract for supplying a defective machine, even though they were not negligent. Counsel for the defendants admitted that, if the negligence was a completely independent tort, the exemption clause would not avail, but he said that the negligence alleged was a breach of contract, not an independent tort. The facts which gave rise to the tort are the same as those which gave rise to the breach of contract and the plaintiff was not allowed to recover just by framing his action in tort instead of contract. The claim for negligence, in this case, was founded on tort and not on contract. That could be seen by considering what would be the position if, instead of the plaintiff himself, it was his servant who was riding the tricycle and had been injured. If the servant could show that the owners had negligently sent out a defective machine for immediate use, he would have had a cause of action in negligence. That shows that the defendants owed a duty of care towards the servant. And with more reason, they also owed the same duty to the hirer himself.In either case, a breach of that duty is a tort which was established without relying on any contract at all. The hirer could also rely on a contract if he had wished, but he was not bound to do so, and if he could avoid the exemption clause by framing his claim in tort he was entitled to do so, according to the judgement of the Court of Appeal.Therefore, it was finally held by The Court of Appeal that the clause only extended to the strict (non− negligent) liability (contract), this would, therefore, allow action in tort for negligence. |
| Town area committee V. Prabhu dayal AIR 1975 All. 132the plaintiff made certain construction without complying with the provisions of the U.P. Municipalities Act. The defendants demolished the construction.The plaintiff sued the defendants contending that the demolition was illegal as some of the officers of the Town Area Committee were acting maliciously in getting the construction demolished.The Allahabad High Court held that the demolition of a building illegally constructed was perfectly lawful. The Court did not investigate the | Damnum sine injuria – Damage without injury Act of plaintiff must be legal to get Damnum sine injuria No person has the right to enjoy the fruits of an act which is an offence under law. Eminent domainHari swaroop – JudgeThe plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not |
