According to Salmond and Hueston, a tort is a civil wrong for which the remedy is a common action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation.
Under the Hindu law and the Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is mainly the English law of torts which itself is based on the principles of the common law of England. This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India.
The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union of India, Justice Bhagwati said, we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.
The three main essential constituents of tort are:
Wrongful act, Legal Damage and Legal remedy
- The first essential ingredient constituting a tort is that a person must have committed a wrongful act. This refers to an act of commission, or, omission that is, he must have done some act which he was not expected to do, or, he must have omitted to do something which he was supposed to do. This is ‘wrongful’ because, there must have been a breach of duty which has been fixed by law itself.
- If a person does not observe that duty like a reasonable and prudent person, or, breaks it either intentionally, or, unintentionally, he is deemed to have committed a wrongful act. In tort, “intention” on the part of wrongdoer, usually has no role, except in cases like malicious prosecution.
- In order to make a person liable for a tort he must have done some legal wrong that violates the legal right of another person, for example, violation of right to property, right of bodily safety, right of good reputation etc., A wrongful act may be positive act or an omission which can be committed by a person either negligently or intentionally or even by committing a breach of strict duty for example, driving a vehicle at an excessive speed.
- In Municipal Corporation of Delhi v Subhagwanti [ AIR 1966 SC 1750] where the Municipal Corporation, having ownership and control of a clock tower in the heart of the city, does not keep it in proper repairs and the failure to do of the same results in the death of number of persons, the Corporation would be liable for its omission to take care.
- The second important ingredient in constituting a tort is legal damage. In order to prove an action for tort, the plaintiff has to prove that there was a wrongful act, an act or omission by the defendant which through its breach of a legal duty led to r the violation of a legal right vested in the plaintiff. So, there must be violation of a legal right of a person and, if it is not, there can be no action under law of torts.
- Legal Rights of a person denotes a capacity residing in one person of controlling the actions of others with the assent and assistance of the state to ensure a harmonious living as a member of the society. They are those rights conferred by the State on all its citizens. There are two types of Legal rights, viz, public rights and Private rights.
- Public rights are those which belong in common to all members of the state. Example: Public peace, Public safety etc.,
- Private rights are vested in persons in general by virtue of law. It can be further divided into two types, namely,.
i.Right in Personum is a right which one person can enforce on another specific person.
Example : Rights of parties to a Contract
ii. Right in rem is a private right that a person is entitled to against the society as a whole, and is not limited to against any specific person.
Example: Right to property, Right to reputation, Right to etc.
5. So wherever there is an infringement of a private legal right, there arises a possibility of a damage. This is best explained by the latin maxim “Ubi jus ibi remedium”, meaning – Where there is a damage, there must be a remedy.
3) LEGAL REMEDY
- The third essential element is that the wrongful act that resulted in injury should give rise to a legal remedy.
- A tort is a civil injury arising from a wrongful act. All civil injuries are not torts. It is therefore necessary that the wrongful act must come under the category of wrongs for which the remedy is a civil action.
- The principal remedy for tort is damages. Usually the court awards monetary compensation. Since the damages are unknown at the time of the event of tortious act of commission or omission, the damages are referred as unliquidated damages which are decided by the court based on facts and merits of a particular case.