Damage as a Constituent of Tort Law
By: Abhinav Benjamin Reg No: 1416014 Class: 1 BA LLB ‘A’ School of Law, Christ University
A tort, in common law jurisdictions, is a civil wrong. Before we dwell into the aspect of ‘Damage as a constituent of tort’, lets us first acquaint ourselves with what tort law is all about. The word tort is derived from the Latin word ‘tortum’ which translates into wrong. A person who commits a tort is known as a ‘tortfeasor’. Torts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred. A tort has been described in the Common Law Procedure Act, 1852 as “a wrong independent of contract”. This is a good general definition according to James1. However it is not possible to give a perfect definition for the law of torts due to the common law aspect of it not being codified. This in turn leads onto the debate of whether it is ‘law of tort’ or ‘law of torts’ as per the theories of Winfield and Salmond respectively.
II. Constituents of a Tort
In order to further understand what a tort is, we have to understand how and when an act becomes a tort. The basic principle is that a protected interest gives rise to a legal right, which in turn gives rise to a corresponding legal duty. An act, which infringes a legal right, is wrongful act but not every wrongful act is a tort. To constitute a tort or civil injury therefore: 1. There must be a wrongful act or omission.
2. The wrongful act or omission must give rise to legal damage or actual damage. 3. The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages.
1. P.S. James, General Principles of the Law of Torts (2nd Edn. 1964) Ch.1. Therefore the constituents can be summed up as:
Wrongful act + Legal damage + Legal remedy = Tort1
As per the English language, damage means any physical harm that impairs the value, usefulness, or normal function of something. However, the damage mentioned in the second constituent of a tort, does not refer particularly to its literal meaning. The damage here refers to legal damage. Legal damage means an invasion or infringement of private legal right. It is up to the plaintiff to prove that he has been subjected to legal damage due to a wrongful act committed by the defendant. This does not mean that the plaintiff has to have suffered any loss or personal injury or any such shortcomings; he only has to prove that his legal right has been violated. To further gain clarity, let us first understand the concept of Legal right Ordinarily a right is that which one may properly demand or claim as just, moral, or legal, that to which one is entitled. It may be general or special, natural or artificial2. A right may appear before us in different forms, each according to occasion, having a different connotation and a special form3. The two types of rights to be discussed in this context are 'Right in Rem’ and ‘Right in Personum’. Right in Rem corresponds to a general duty imposed upon all persons of the world in general. It is available against the world at large. It is addressable to an open class of people, which means that the number of people involved is indefinite. Conversely, Right in Personum corresponds to a general duty imposed upon a single determinate individual. It is available against a particular person or persons. Therefore there is a definite number of people...
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