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Wednesday, May 15, 2013

General Condition of Liability under the Law of Tort.


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Here are two theories with regard to the basic principle of liability in the law of torts or tort. They are:
# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.
# Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.

The first theory was propounded by Professor Winfield. According to this, if I injure my neighbor, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying; my duty is to hurt nobody by word or deed. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.

The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbor as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort.

The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort. The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes in untenable. However salmond argues in favor of his theory that just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted for an alleged offence or sued for an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.
So tort is different from crime and breach of contract. In tort the category of responsibility is liability. Liability of Tort are arise the following way---

1.    Wrongful Act:
In case of tort there must be a wrongful act or omission on the part of defendant. An act which prima facie looks innocent may become tortious, if it invades the legal right of another person. Every act are liable for tort, in this respect motive is not essential. In Rogers v. Ranjendro Dutt, the court held that, the act complained of should, under the circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him in some legal right; merely that it will however directly, do him harm in his interest is not enough.
A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are very numerous. They may be divided again into public rights and private rights. To every right, corresponds a legal duty or obligation. This obligation consists in performing some act or refraining from performing an act.

Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.
Every wrongful act is not a tort. To constitute a tort :-
# There must be a wrongful act committed by a person;
# The wrongful act must be of such a nature as to give rise to a legal remedy and
# Such legal remedy must be in the form of an action for un-liquidated damages.


2.    Mens-rea:
Mens- rea is a Latin term that means, ‘guilty mind’ or a ‘culpable condition of the mind’. It is the second condition usually required for liability of a tort. In development of tort the Latin maxim “Actus no facit reu,, nisi mens sit rea” provide there is no guilt or wrong in the absence of guilty mind. So if a person liable for tort he should have guilty mind.
Case Ref: in this point the leding case is 1.  Ryland V. Fletcher, 1868 R. 3HL. 330.
2. Read V. Lyons, 1947 a.c. 156, chap. 16.

But this maxim does not mean that, the act must be done with a wicked or evil motive, it simply means that mind must concur in act. The act must be done either with a wrongful intention or with culpable negligence on the part of the defendant. In criminal law and jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault. The exception is strict liability crimes.

In civil law, it is usually not necessary to prove a subjective mental element to establish liability for breach of contract or tort, for example. However, if a tort is intentionally committed or a contract is intentionally breached, such intent may increase the scope of liability as well as the measure of damages payable to the plaintiff. Therefore, mens rea refers to the mental element of the offence that accompanies the actus reus. In some jurisdictions, the terms mens rea and actus reus have been replaced by alternative terminology. In Australia, for example, the elements of the federal offences are now designated as "fault elements" or "mental elements" (mens rea) and "physical elements" or "external elements" (actus reus). This terminology was adopted to replace the obscurity of the Latin terms with simple and accurate phrasing.


3.    Legal Damage:
In general, a tort consists of some act done by a person who causes injury to another, for which damages are claimed by the latter against the former. The word damage is used in the ordinary sense of injury or loss or deprivation of some kind. [Whereas damages mean the compensation claimed by the injured party and awarded by the court.] The word injury is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not.
The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria and Injuria Sine Damno.

(i) Damnum Sine Injuria:
That means “actual loss without legal loss”, economic loss or financial loss are actual loss which are not violate legal right and they are not actionable in tort.
Case Ref: In this point the leading case is Glocester Gramer School Case, 1410.

There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage without injury. Damage without breach of a legal right will not constitute a tort. They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one’s own premises. In Gloucester Grammar School Master Case, it had been held that the plaintiff school master had no right to complain of the opening of a new school. The damage suffered was mere damnum absque injuria or damage without injury. Acton v. Blundell, in which a mill owner drained off underground water running into the plaintiff’s well, fully illustrate that no action lies from mere damage, however substantial, caused without the violation of some right. There are moral wrongs for which the law gives no remedy, though they cause great loss or detriment. Los or detriment is not a good ground of action unless it is the result of a species of wrong of which the law takes no cognizance.

GLOUCESTER GRAMMER SCHOOL CASE 1410 Y.B.II Hen 4th
A school master set up a revel school next to that B. Many students left the old established school of B and got admission in the newly opened school of A. As a result B suffered a heavy loss and filed a suit against A for damages. Held, That “no suit could lie on the ground as bona fide Competition can afford no ground of action Whatever damage it may cause”

(ii) Injuria Sine Damno;
That means “legal loss without actual loss”. Legal loss refer to breach of private right, trespass etc. and its actionable in law of tort. Defendant is liable for give damages.
Case Ref: In this point the leading case is Ashby V. White, 1703.

It is  an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of action. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right. Every person has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of special damage. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. This principle was firmly established by the election case of Ashby v. White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The candidate from whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff.

Ashby v. White (1703):
In this case plaintiff was wrongfully prevented from exercise his vote by the defendant White, returning officer in parliamentary election. Plaintiff Ashby wanted to give vote had come out successful in the election. But defendant returning officer prevented to do this there is no actual loss or damage with Ashby but there is a legal loss. So Ashby claiming damages against defendant. And plaintiff Ashby allowed for damage by Lord Holt saying that “there is infringement a legal right.”


4.    Direct Consequence:
Tort is a civil wrong and has many different between crimes. A defendant is not liable of all consequence for his wrongful act or defaults.  Liability must be found for an act which is direct cause of harm or injury and which is complain of. Remoteness of damages is not liable for tort.
Case Ref: In this point the leading case is Doughty V. Tunner Manufacturing Co., 1964.

The causal connection between the damage and the defendant’s act is not sufficiently direct, that is to say, when the two cannot be concatenated as cause and effect, there is no liability, for the damage is too remote. In these cases, though the damage to the plaintiff results from the wrong done by the defendant as a matter of fact, it is not eye of law sufficiently connected with the wrong to make the defendant to compensate the plaintiff for it. This is a question of law, the court in deciding it has to take into consideration all the circumstance of the case in which the question arise and is guided by practical considerations of convenience and common sense and does not profess to be acting upon principles of abstract logic.
Firstly--- those that have been intended by the actor. Here the connection between the act and the consequence is obvious, and hardly needs as explanation.
Secondly--- those that are the ‘natural and probable consequence’ of his act. Liability for the natural consequence has been said to rest upon a presumption of intention which id expressed in the maxim “A man presumed to intend the natural consequence of his act.” Where this rule applies, the act itself is the chief or sole proof of the intention with which it has been done.
Thirdly--- those that could not be contemplated as ‘natural and probable’ but are nevertheless directly traceable to the defendant’s wrongful act, and not due to the operation of ‘independent causes’ having no connection with that act.

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