Basic Of Law of Torts

Salmond’s law: Tort is a civil wrong for which remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of contract or the breach trust, or other merely equitable obligation.

Essentials of Tort:

(1.) There must be a wrongful act.

(2.) The wrongful act must result in legal damage to another person.

(3.) It must give rise to a right.

Two principal or maxim to be remembered in torts, they are as follows:-

a.) Injuria sine damnum

b.) Damnum sine injuria

A.) Injuria sine damnum – Injuria sine damnum means the violation of right/injuria without damage. It is an infringement of an absolute private right without any actual loss or damage. Therefore the plaintiff will be compensated if his legal rights are violated even though there is no actual loss or damage suffered.

(1.) Ashby V. White (1703)

The plaintiff went to cast his vote but the election authority wrongfully stopped him, the candidate who he wanted to choose won the election. He files a case on compensation. Since there was a violation of the legal right of the person, so here the court awarded one penny because it is a case of injuria sine damnum (violation of right without damage).

(2.) Bhim Singh V. State of Jammu and Kashmir A I R 1986

In this case, the plaintiff/petitioner was an MLA of J&K assembly, Bhim Singh, who was wrongfully detained by the police why he was going to attend the assembly session. He was not produced before the magistrate before the requisite period. As a consequence of this, the member was deprived of his constitutional rights. There was also the violation of the fundamental rights to the personal liberty guaranteed under article 21 of the Indian Constitution. So, in this case, the court awarded compensation to the petitioner.

B.) Damnum sine injuria – It means damage without violation of right/injury. In other words, causing damage, however substantial, to another person is not actionable in law or unless there is also a violation of legal rights. Therefore ok, there will be no compensation for the plaintiff unless there is also a violation of legal rights.

Cases

(1.) Gloucester Grammar School (1410)

In this case, the defendant set up a new school near the plaintiff’s school, due to which the plaintiff suffered a high monetary loss as his student started joining the defendant’s school. So the plaintiff sued the defendant to seek compensation but no compensation was given, the court rejected the case.

(2.) Mogul Steamship Co. V. Mc. Gregor’s Crew & Co. (1892)

All the steamship companies united & drove the plaintiff’s company out of the tea trade company by reducing their freights due to which the plaintiff suffered losses. The court observes that if someone exercises in a lawful manner, no compensation was given as the other companies were only doing marketing practices and there wasn’t any injury to the plaintiff because it was a case of damnum sine injuria.

(3.) Bradford Corporation V. Pickels (1895) A.C.

The plaintiff and the defendant were the owners of the adjoining lands. The plaintiff wanted to sell the land to the Corporation but the defendant dug a borewell on his land which reduces the water level. Since there wasn’t enough water, the corporation cancels the deal with the plaintiff. Though digging borewell on own land is a lawful activity, so the court rejected the case.

(4.) Ushaben V.  Bhagyalakshmi Chitra Mandir A.I.R. 1978 Gujarat

In this case, the defendant released a movie named “Jai Santoshi Maa” in which Goddess namely, ‘Luxsmi’, ‘Parvati’ and ‘Saraswati’ were depicted as jealous and criticizing each other. The court rejected the case because there was no violation of the legal right and no compensation was given to the plaintiff.

Ubi jus ibi remedium – It means that where there is a right, there is the remedy. The person will get the remedy where there is a violation of the legal right.

The court will never say that they don’t have a law to decide the case if it reflects that there is a violation of legal right they will give the remedy even if the case has some new/particular facts. The court denied applying this (Ubi jus ibi remedium) maxim on the Ushaben case as it does not reflect the violation of legal rights.

If once the case is decided by the Supreme Court it becomes president for all the court in India. The decision of the Supreme Court is not binding upon Supreme Court itself and the decision of one high court is binding upon all its subordinates court within that state but for other high courts the decision is not binding, it has only persuasive value.

Author: Shubham siwach

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