Contents

Tort
 Derivation of word
 General definition
 Injuries in tort
 Definitions by different jurists
 Explanation
 Development
Nature of Tort
 Public right
 Private right

Negligence in tort (with examples)

 Nonfeasance
 Malfeasance
 Misfeasance

Damages in tort (with examples)

 Injuria sine demnum
 Demnum sine injuria
 Distinctions between tort and contract
  Distinctions between tort and crime
 conclusion
Reference:
 Miss shumila’s notes
 internet
 http://www.chblawfirm.com/blog/examples-of-nonfeasance-in-
terms-of-tort-law/
 https://legaldictionary.net/tort-law/
Tort

Derivation of the word:

The word tort is derived from Latin term “Tortum” which means “ to
Twist”.

General Definition:
A tort is wrong full act or infringement of civil right or legal liability and
the person who commits tort is called Tortfeasor.

Elements of tort:
For an act to be considered a Tort, there will be three essential
elements:

 Tort is a civil wrong,

 Such civil wrong is other than a mere breach of trust or contract
 The remedy for such civil wrong lies in an action for unliquidated
damages.
 Injuries in Tort:
Legal injuries in tort are not limited to physical injuries and it may
include emotional, economic, or reputational injuries as well as
violations of privacy, property, or constitutional rights, in tort we
don’t only include physical injuries it also deals with emotional,
insults, taunts, defamation etc.
Definitions by different jurists:
Many jurists gave their own definition regarding tort some of them are
as under.

Definition by Salmond:
"Tort as a civil wrong for which the remedy is common law action for
unliquidated damages and which is not exclusively the breach of
contract or the breach of trust or other merely equitable obligation."

Winfield's definition:
“Tortuous liability arises from the breach of a duty primarily fixed by
law; this duty is towards persons generally and its breach is redresable
by an action for unliquidated damages.

Explanation
“A civil wrong, other than a breach of contract, which the law will
redress by an award of damages,The breach of a duty, primarily fixed
by law, towards persons generally which is redressible by an action for
unliquidated damages”
However, tort is so broad as to include other wrongs and remedies such
as breach of trust etc. Though, that a tort arises when there has been a
breach of a legal duty which is recognized under the law and that the
appropriate remedy is a claim for damages, which is perhaps the
primary characteristic of the action.

Tort is not a crime it is infringement of civil right of a person or

negligence which harmed a person, property or trust. Financial matters
do not came in Tort, in simply we can say tort deals with rights and
duties prescribed under law.

Development of Tort:
History development
Roman law contained provisions for torts in the form of delict, which
later influenced the civil law jurisdictions in Continental Europe, but a
distinctive body of law arose in the common law world traced to English
tort law. The word 'tort' was first used in a legal context in the 1580s.
Modern development:
Modern torts are heavily affected by insurance and insurance law, as
most cases are settled through claims adjustment rather than by trial,
and are defended by insurance lawyers. The law of torts for various
jurisdictions has developed independently.
In the case of the United States, a survey of trial lawyers pointed to
several modern developments, including strict liability, the limitation of
various immunities. However, there has also been a reaction in terms
of tort reform, which in some cases have been struck down as violating
state constitutions, and federal preemption of state laws.
Nature of Tort
In every jurisdiction, law imposes a duty to respect and not to violate
rights vested to the members of its society. Any individual committing a
breach of such duty commits a wrong OR his such an act is said to be
wrongful.
Rights are generally classified as public rights and private rights.
Public right: (right in Rem)
Public rights are those which affects the entire society or your right
against whole world for example no one can kill you or defame you in
this world.
Private right: (right in personam)
Private rights are those which affect the individual and only that
person is responsible of your right like contract between two parties
third person have no concern.
It is often said that, a wrong which is not a crime, which is not a breach
of contract or which is not a breach of trust is a wrong of tort.
Negligence in tort:
There are three types of negligence in tort
 Nonfeasance
 Malfeasance
 Misfeasance
Nonfeasance:
Failure to do what ought to b done. Nonfeasance is a legal term used in
tort law that describes an inaction, rather than an action. Nonfeasance
is the act of intentionally neglecting to carry out a mandatory duty or
obligation, and as a result of that neglect, someone is harmed or killed.
Someone can be guilty of nonfeasance if and when a duty of care is
owed to a person or group of people, a breach of that duty takes place,
and that breach resulted in injury to that person or people.
a) The person who is responsible for not acting would be the person
expected to act,
the same person who did nothing is the one expected to do something
b) The person did not act as expected, and
there was an appropriate action expected by that person, and it did not
occur
c) not acting caused harm.
because the action did not occur, there was an injury.
Examples of Nonfeasance
 A police man is bound to catch thief but he failed to do so, he is
duty bound by law and his legal duty but he is enable to perform
it.
 A traffic police is bound to direct people right and properly but he
couldn’t and absent from duty and results into accidents is
nonfeasance.

Malfeasance
The commission of an act that is unequivocally illegal or completely wro
ngful.
Malfeasance is a comprehensive term used in both civil and Criminal
Law to describe any act that is wrongful. It is not adistinct crime or TORT,
but may be used generally to describe any act that is criminal or that is
wrongful and gives rise to, orsomehow contributes to, the injury of
another person.
intentionally doing something either legally or morally wrong which
one had no right to do. It always involves dishonesty, illegality.
 A wrongful act which the individual has no legal right to do
 Wrongful conduct which affects, interrupts, or interferes with the
performance of official duty
  An act for which the individual has no authority or warrant of law
 An act which the person ought not to do
 An act which is wholly wrongful and unlawful
 An act for which the person has no authority to do, and which is
positively wrong or unlawful
 The unjust performance of some act which the person has no
right, and has not been contracted to do

Examples of malfeasance
 A school principal hires his brother-in-law as a school janitor,
falsifying his employment history in order to pay him at a rate
higher than normal for the entry-level position because he has
experienced hard times financially since losing his previous job.
Knowingly committing this dishonest act in order to obtain a
higher wage for the principal’s relative is an example
of malfeasance.
 Killing is an illegal act and committing it knowingly is malfeasance.
 Defamation is illegal and also immoral act.
Misfeasance:
Misfeasance occurs when an act is legal, but is performed illegally or in
an improper manner. A defendant is responsible for misfeasance when
they willfully commit a wrong that causes harm to the plaintiff or
breaches their duty of care by performing the legal act. Sometimes
actions can unintentionally cause harm to other people. While these
actions are often mistakes, there can be legal
consequences. Misfeasance is the legal term used for an act that is not
illegal, but is performed in a way that harms another individual.

Examples of misfeasance:
 The Docter is bound to examine his patients carefully and
properly but he operates and leave some instrument inside body
and patient dies, he performed his duty but in improperly and
carelessly.

 A woman with early stages of cancer goes to see her doctor for a
checkup, during which she mentions a small lump in her skin The
doctor fails to properly test for cancer. One year later, the cancer
had spread significantly; she is forced to go through many months
of chemotherapy and ends up losing her life. In this case, the first
doctor may be held liable for a failure to diagnose cancer, and
would be responsible for paying for all the medical expenses, loss
of chance of survival, loss time from work, emotional distress, and
the pain and suffering involved.

Damages in Tort:
Not every damage is legal damage In tort. There are two types of
damages in tort:
 Injuria sine damnum
 Damnum sine injuria
 Injuria Sine Damno ( injury without damages)
It is used in law of torts and is related to damages. The meaning of
the above maxim is infringement of an absolute private right
without any actual loss or damage. Here the actual damage
means physical loss in terms of comfort, health, privacy, legal
right etc.

 Examples:
Suits of injuria sine demnum
  Ashby v. White :
Plaintiff was confined by returning officer due to which plaintiff
was not able to caste his vote. Though the party in the election
that the plaintiff wanted to vote won the election. Since the right
to vote was violated, there is a legal injury to the plaintiff by the
defendant.
 Bhim Singh v. State of Jammu & Kashmir :
Bhim Singh(plaintiff) was detained by the police when he was on
his way to attend assembly section for his work.He was not even
presented in front of magistrate within the requisite time.
Hence,here the legal rights of plaintiff are violated,The defendant
was held liable and plaintiff was compensated for the same.
 Ashrafilal v. Municipal Corporation Of Agra :
In this case, the Ashrafilal’s (plaintiff) name was deleted and
dropped from the voters list by the concerned authorities,
consequence of which plaintiff was not able to exercise his right
to vote. Plaintiff sued Defendant.
 Marzetti v. Williams :
Marzetti(Plaintiff) was holding an account in the bank of
defendant. Though there was sufficient amount money in the
plaintiff’s account, but when plaintiff tried to withdraw some
money via self cheque, he was denied without any sufficient
reasoning. Plaintiff sued defendant.

Damnum sine injuria (damage without injury)

refers to a legal situation in which plaintiff's right is not respected by
another but where the breach of plaintiff's right does not cause
damage, or at least not a calculable or admissible damage. A finding
of damnum sine injuria can be the basis for a finding of nominal
damages.

Examples:
 Gloucester Grammar school case, 1410 (setting up
rival school)
Defendant was school teacher in plaintiff's school. Because of
some dispute Deft left plaintiff's school and started his own
school. As defendant was very famous amongst students or his
teaching, boys from plaintiff’s school left and joined to Deft.
School. Plaintiff sued Deft for monetary loss caused. Deft not
liable. Compensation is no ground of action even though
monetary loss in caused if no legal right is violated of anybody.
 Chasemore v/s Richards 1859
Plaintiff was running a mill on his own land, and for this purpose
he was using the water of the stream for a long time. The Deft dug
well in his own land and thereby cut off the underground water
supply of stream. Through percolation the water gathered in the
well of deft. The quantity of water of stream was reduced and the
mill was closed for non availability of water. Plaintiff sued deft for
damage Deft. Not liable, because of principle of Damnum sine
injuria. No violation of legal right, though actual loss in money.

 Mayor of Bradford v/s Pickles 1895

Corporation of Bradford was supplying water from its well.
Defendant was having adjacent land to the corporation land
wherein there was well.
Defendant was willing to sell his land. He approached the mayor
 of corporation Negotiations failed. Defendant dug well in his own
land .thereby cutting the underground supply of water of
corporation well this has caused a loss to corporation because
there was no adequate supply of water to the people of
corporation. Plaintiff sued Deft for damages for malice. Deft.is not
liable, because defendant's act is not wrongful as not violated
legal right or plaintiff. There is factual malice, ill will digging well
in his own land does not amount to tort.

Distinction between Tort and Breach of Contract

Tort Breach of contract

 Tort occurs when the right  Breach of contract occurs

available to all the persons in due to breach of duty agreed
general (right in rem) is upon by the parties
violated without the themselves.
existence of any contract.
 Victim is compensated for  Victims are compensated as
unliquidated damages as per per the terms of the contract
the judgment of the judges. and damages are usually
Thus, damages are always liquidated.
unliquidated.
 Duty is fixed by the law of  Duty towards each other is
the land and is towards all affixed by the contract
the persons. agreed by both parties.
 Doctrine of privity of
contract does not apply  Only the parties within the
because there is no contract privity of contract can initiate
between the parties. the suit.
 Victim is compensated for
 exemplary damages as well.  The victim is only
compensated for actual loss
and damages.

Example of tort:
• Examples of Torts include occupier’s liability, nuisance, negligence,
defamation or product liability.

example of contract:

• An example of a Contract is an agreement between Company A to

provide a security service to Company B in return for a valuable
consideration paid by Company B to Company A.

Distinctions between Tort and Crime

Tort Crime
 Tort occurs when the right Tort occur when the right available
available to all the persons in to all the persons in general (right
general (right in rem) is in rem) is violated and it also
violated without the seriously effects the society.
existence of any contract.
 Act is comparatively less  Act is comparatively more
serious and affects only the serious and affects the
person. person as well as society.
 Intention is usually  Intensions are the most
irrelevant. important element in
establishing criminal liability.
 It is a private wrong.  It is a public wrong.
  The suit is for damages.  The FIR is for punishment.

 Since it is a private wrong the  Since it is public wrong

wronged individual must file government take
a suit himself for damages. responsibility for proceeding.

 CPC contains provisions of  CrPC contains criminal

tort. provisions.

Example:
The obstruction a public highway is a civil injury. The aggrieved party
can institute civil proceedings, it is not a tort. The obstruction of a
public highway becomes as a tort in a special circumstance, i.e., special
damage suffered by art individual. Then only he can claim for damages
under tortious liability at his suit.

Conclusion
Tort law refers to the set of laws that provides remedies to individuals
who have suffered harm by the unreasonable acts of another. Tort law
is based on the idea that people are liable for the consequences of their
actions, whether intentional or accidental, if they cause harm to
another person or entity. Torts are the civil wrongs and infringement of
rights.

Tort is basically infringement of civil right and compensated for un-

liquidated damages. Romans made these laws and further developed
by common law. Tort is not a crime or breach of contract it deals with
negligence like Nonfeasance malfeasance misfeasance. There are so
many cases of tort I discussed above which deals with violation of right
and un-liquidated damages. Some damages are without injuries known
as “Dumnun sine injuria” and some are injury without damages “injuria
sine demnum”. There are two types of rights “Right in Rem” and “Right
in Personam” but tort deals with remedy and right because when there
is right there is remedy.

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The End