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The Nature Of A Tort
c) Tort distinguished from crime|
n a general sense, the wrongs, which are less serious in nature, are categorised as private wrongs and have been grouped as civil wrongs. On the other hand, wrongs, which have more serious effects, are termed as public wrongs and fall under the group of crimes. A crime affects the whole community, but, tort violets individual rights.
In a case for tort, the injured party has to file a suit as the plaintiff. In a criminal litigation, however, the criminal proceeding against the accused is initiated by the State.
Further, the law does not permit a settlement between the accused and the victim in a criminal proceeding (except in few cases)
At any time in a suit for tort, there can be a settlement by and between the parties and as a consequence, the said suit can be withdrawn.
Tort can also be distinguished from a crime by the final award of the concerned court.In tort, the injured party is awarded compensation, whereas, in a criminal case, the accused in awarded punishment .At times, an act may constitute both a tort as well as a crime. The remedies available in such instance are not alternative, but concurrent. Though there are multiple features that distinguish a crime from a tort, there exists one basic similarity between the two as well. It is the primary duty of not to commit an offence.
d) Essentials of a Tort
To constitute a tort, it is essential that the following two conditions are satisfied:
There must be some act or omission on part of the wrong doer.
Such act or omission should result in violation of legal right of the aggrieved
The first step to constitute a tort is the commission or omission of an act by the wrongdoer. Either a positive wrongful act or an omission, which is illegally made, will make a person liable in an action for tort.
The next element essential to constitute a tort is the violation of legal right. In the absence of any violation of a legal right, no action in tort can be initiated.
This principle is governed by two maxims, which are
In Gloucester Grammar School Case, a schoolmaster, being the defendant, set up another school just adjacent to that of the plaintiff’s. The resulted competition forced the plaintiff to reduce the fees for the students considerably.
- Injuria Sine Damno: This means violation of legal rights without causing any damage i.e. there is injury though there is no damage. Even in the absence of any damage, if there is violation of legal right, the defendant will be liable.
This maxim finds application in the case Ashby v White wherein the plaintiff being a lawful voter was denied to exercise his voting rights by the returning officer, the defendant in this case. Though the candidate for whom the plaintiff intended to cast his vote won eventually, the defendant was held liable.
- Damnum Sine Injuria: This means instances when there is damage though there is no violation of any legal right of the plaintiff. If there is no violation of rights, no case in tort will stand.
It was held that the plaintiff is not entitled for any damages due to the loss suffered by him on the opening of another school in the same area by the defendant.