Meaning of Tort
Tort is not a crime but a civil wrong;- mr X enters into Mr. y's house and use
the swimming pool and exists. Here MR. x had not caused any loss/injury or any
type of damage to Mr. y but has violated Mr. y's right to privacy, there it is
said tha Mr. have committed Tort.
Law of Tort and law of crimes
|Law of Tort
||Law of crimes
|Civil suit is filled when a Tort is committed
||Criminal prosecution takes place
|Violation of right. Duty imposed by law that one cannot violate
Tort effects the one who's right has been violated
|Crime which took place may be with one particular person but effects the whole
society. Crime effects public at large
|Individual who's right is violated (plaintiff) files suit against the one who
have violated the right (defendant) in court.
||Public at large that is state files the case and is called prosecution against
the one who committed the crime (accused)
|Remedies; damages or compensation or both
||Remedies; punishment or imprisonment.
|It is uncodified and unwritten.
||It is codified under IPC and CrPc
Law of Tort and Breach of contract
Breach of contract is also civil wrong where the plaintif files case and get
damages but breach of contract is not a Tort.
Before understanding the difference between the two concepts some key terms
should be understood, which are as follows:
- Liquidative damages
Parties decide in advance at the time they are forming a contract.
Eg; X and Y comes into a contract that, Xwill sell 100 scented candles for
rupees 5000/- to Y and then both have agreed that if y is not able to pay money
on time Y will give compensation to X and if X is not able to deliver the goods
on time X will bear all the transportation charges and also will reduce the
- Unliquidated damages
When parties are not under any contractual terms and therefore there is no
damages decided prior or in advance. Court will decide the damages to be paid by
- Privity of contract
Third party cannot sue any of the two parties under the contractual terms.
|Law of Tort
||Breach of contract
|No concept is followed
||Privity of contract is followed
|Duty imposed by law
||Duty imposed by the parties.
Eg; Mr. x was travelling in a train which met with an accident due to negligence
of the driver.. negligence is covered under law of Torts and on the other hand
Mr. x was under the contract with the railway authorities that if the train met
with an accident due to any negligence on the part of the driver, the railway
authorities will be liable and will pay for the damages or loss to Mr. x or his
family. Therefore, it also includes breach of contract.
Elements of Tortious Act Every wrongful act is not a Tort, To constitute law of Torts three elements must
- Wrongful act
Private right violation which are
defamation (violation of right to good reputation),
assault (violation of right to bodily safety and freedom),
trespassing (violation of right to property)
- Legal damages to the plaintif
Injuria Sine Damnum: injuries (violation of legal rights) without damages (loss
of money or loss of comfirt). Injuria sine damnum can be sued under Tort.
Ashby V. White
X goes to vote but the returning officers in election stops him t vote, where x
have all the documents required but was prevented for giving a vote, although
the candidate he wants to vote wins the election. X files case against the
returning officer saying that he was not able to exercise his right to vote.
Defendant that is the officer said, there would be no change even if the plaintif have exersied his right to vote, in his defence. Judgement: there were
no damages occurred or beared by the plaintiff as the candidate he wants to
elect had win the election but the returning officer have violated plaintif's
right to vote and therefore committed Tort and hence plaintiff will be given
remedy or unliquidative damages.
Damnum Sine Injuria: damages without injuries. Damnum sine injuria cannot be
sued under Tort.
Usha Ben V. Bhagyalaxmi Chitra Mandir
In 1970s a film was released ‘Jai Santoshi Maa'. X filed case and demanded
that ban should be imposed on the film's release because the film has hurt his
emotions and religion. It was said that in the film the goddess of hindu
religion has been potrayed wrongfully due to which he has been hurt.
Judgement: court said that X may have suffered damages due to the movie but her
no legal right has been violated and therefore no legal remedies were given.
Gloucester Grammar School Case
A school teacher resigns and started a new school infront of the previous one
due to which the previous school reduces its fees as the competition increases.
The first school incurred loss due to low fees and files case on the ex-employee
who has started the new school.
Judgement: court held that the previous school had incurred damages but no legal
rights were violated. Hence, no remedies would be given.
- Legal remedy
Ubi Jus Ibi Remedium: Where there is right there is a remedy.
Example:- if a citizen trespasses, one can sue and ask for remedies bu if a
police officer came to a property and exercise his/her duty for investigation
the owner of the property cannot sue and asks for the remedy.
Example:- if a person is walking on railway track and met with an accident with
a train the he cannot file a case against railway authorities because he was not
having any right to walk on the tracks.
Justification Of Torts
Volinti Non Fit Injuria: it a maxim which means ‘to a willing person, injury
is not done' that is willingness does not make injury. It is a common law
doctrine which states that if someone willingly places themselves in a position
where harm might result then they are not able to claim against the other party
Example:- if a person buys ticket to watch a cricket match in stadium. while
sitting on the stands watching the match if he is hit by the ball and gets
injured then he will not be able to take any remedies under the law of Torts
because he has already given his consent to such accident by buying the
Therefore, damages suffered in such cases are suffered by consent and hence no
Tortious act took place.
Essentials of volinti non fit injuria
Hall V Brookland Racing Club
- Knowledge a party entering to a contract should have the full
knowledge about risks involved in the act under contractual terms.
Smith V. Charles Baker
The plaintiff was employed by railway contractors to drill holes in a rock, a
crane worked by the plaintiff which lifts stones. The crane lifted stones and
swung over the appellant's head. A stone having fallen from the crane without
any warning being given, appellant (smith) was seriously injured and filed a
case against his employer.
Judgement: it was held that plaintiff had partial knowledge but not the full
knowledge therefore, defendant was held liable and the maxim does not
applied in the case
- Consent a party entering to a contract should have their own consent.
Consent can be either expressed or implied.
Express consent: it can be either return or oral but should be specified. A
permission for something that is given specifically either verbally or in
writing will constitute an expressed consent.
Implied consent: an assumption of permission that is presumed from action on the
part of the individual.
Plaintiff went to watch car racing. During the race there was collision between
two cars as a result one of the car hit plaintiff and injured him. Plaintiff
filled suit against racing club.
Judgement: court held that defendant was not liable for injury caused to
plaintiff because the plaintiff have voluntarily consented.
Written By Saloni Aggarwal
- Ashby v White (1703) 92 ER 126
- Ushaben v. Bhagyalaxmi chitra mandir AIR 1978 Guj 13, (1977) GLR 424
- Gloucester grammar school case (1410) YB 11 Hen IV, fo. Pl. 201, 23
- Smith v Baker & Sons  AC 325
- Hall v. Brooklands Auto Racing Club (1933) 1 KB 205