Law of Tort
A "tort" is a civil wrong. Such wrongs include negligence, nuisance and defamation (libel and slander). The law of torts represents the means whereby individuals may protect their private interests and obtain compensation from those who violate them.
On completing the course, you will be acquainted with the fundamental
principles of tortious liability, both statutory and common-law and the main
defences and remedies available to parties to a claim in tort. You will have an
understanding of the varieties of torts and of the legal interests that these
seek to protect. You should, above all, be able to analyse legal problems and
offer a solution based on a system of rules, advance a reasoned argument and
identify and criticise strengths and weaknesses in others` arguments.
The course is delivered over two terms, and covers the following topics.
¨ Para"011 " relevant causes, facts and circumstances should be ascertained by the person having proper knowledge of industry, banking and law of torts.
¨ State, degree, quality, trade, or profession of the party injured, as well as of the person who did the injury are part of the relevant and material facts.
¨ Injured party is to be provided with reparation for the wrongful act.
¨ If there be any special damage which is attributable to the wrongful act that special damage must be averred and proved.
¨ Notional restitution i.e. restitution may be by award of compensation. This is specially so when the plaintiff is compensated for non-pecuniary damage such as pain and suffering.
¨ Exemplary damages if the plaintiff is injured by the oppressive, arbitrary or unconstitutional action by the executives or the servants of the Government
¨ In determining liability when causation is in issue, it has to be established like any issue relating to past event, on the balance of probabilities.
¨ Para"012 - assessment of damages, which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will happen or would have happened and reflect those chances, whether they are more or less even, in the amount of damages which it awards
¨ Ordinary damages are awarded where it is necessary to compensate the plaintiff fairly for the injury he has in fact sustained. These are also called compensatory damages.
¨ Whatever sum is awarded, whether large or small, must afford a measure of compensation to the plaintiff with reference to actual harm sustained by him.
¨ The law does not aim at restitution but compensation, and the true test is, what sum would afford, under the circumstances of the particular case, a fair and reasonable compensation to the party wronged for the injury done to him,
¨ The plaintiff’s own estimate being regarded as the maximum limit. The measure of reparation or damage for any injury should be assessed as nearly as possible at a sum of money which would put the injured party in the same position as he would have been in if he would not have sustained the injury
¨ When the plaintiff injury is aggravated by the conduct and motives of the defendant, e.g. when he has acted in a highhanded manner, wilfully or maliciously, the damages may be correspondingly increased. But the damages so increased or aggravated are really compensatory and fall in the category of ordinary damages
¨ Para"013 " Exemplary damages are awarded not to compensate the plaintiff but to punish the defendant and to deter him from similar conduct in future
¨ First category is oppressive, arbitrary or unconstitutional action of the Government or its servants - The Supreme Court has accepted the principle that oppressive, arbitrary or unconstitutional action of the Government or its servants calls for exemplary damages and this principle has been extended to a government statutory authority
¨ Para"014 - General damages are those which the law will imply in every violation of a legal right. - They need not be proved by evidence for they arise by inference of law, even though no actual pecuniary loss has been, or can be, shown.
¨ Special damage - It is employed to denote that damage arising out of the special circumstances of the case which if properly pleaded, may be super-added to the general damage which the law implies in every infringement of an absolute right. - Where an actual and positive right (apart from the damage done) has been disturbed, it is the damage done that is the wrong; and the expression “ special damage,” when used of this damage, denotes the actual and temporal loss which has, in fact, occurred. Such damage is called variously “express loss,” “particular damage,” “damage in fact,” “special or particular cause of loss,”
¨ In actions brought for a public nuisance, such as the obstruction of a river or a highway, “special damage” denotes that actual and particular loss which the plaintiff must allege and prove that he has sustained beyond what is sustained by the general public, if his action is to be supported, such particular loss being, as is obvious, the cause of action.
¨ Aforesaid distinction between General Damages and Special Damages is based on the substantive law distinction between torts actionable per se and torts not actionable without actual or special damage to the plaintiff.
¨ The expression special damage in the context of pleadings, however, signifies “some special or material item of plaintiff’s loss which is not an obvious consequence of the tort committed by the plaintiff and of which, therefore, the defendant should be given notice in the pleadings