2. Tort is a civil wrong arising from an act or failure to act,
independently of any contract, for which an action for
personal injury or property damages may be brought
Definition of tort according to-
Salmond:-
Tort is a civil wrong for which the remedy is a 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.
3. Winfield:-
Tortuous liability arises from breach of duty primarily
fixed by law; this duty is towards persons generally
and its breach is redressible by an action for
unliquidated damages
4. The word tort is equivalent to-
WRONG in English
DELICT in Roman
JIMHA in Sanskrit
When we look at the journey of the word ‘tort’ from France to
India we find that it came from to India from
England. In 1605, England was conquered by Normandy (a
place in France) and French became the spoken language of
courts for many years. Thus, it happened
The word ‘tort’ is of French origin and has been derived from
the Latin word tortum which means to twist.
5. That many technical terms of English law are of
French origin. When Britishers ruled over India,
during the 18th century British courts were established
and use of British legal terms were common. Thus,
the word ‘tort’ was introduced in Indian legal system.
6. As per Salmond’s definition, the essentials of a tort are –
1- There must be a civil wrong,
2- The remedy for that wrong, is a common law action for
unliquidated damages,
3- and which is not exclusively the reach of a contract or the
breach of trust or other merely equitable obligation.
According to Dr. Winfield, the essentials of a tort are –
1- Tortuous liability arises from breach of duty primarily fixed by
law,
2- This duty is towards person generally,
3- Its breach is redressable by an action for unliquidated
damages.
7. It is a shock to the nerve and brain structures of the body
It is not a physical injury either by stick, bullet or sword but
merely by what has been seen or heard.
E.g., injury through agitation caused by a false alarm
or unlawful threats may result in a nervous breakdown or a
mental shock which may injure the plaintiff for his ordinary
activities.
It is a shock which arises from a reasonable fear to
immediate personal injury to oneself
8. For a case under nervous shock, the plaintiff has to prove
the following things: -
Necessary chain of causation between
nervous shock and the death or injury of one or more parties
caused by the defendant's wrongful act;
Plaintiff is required to prove shock
caused to him by seeing or hearing something. Physical
injury is not necessary;
His proximity to the accident was sufficiently close in
time and space.
9. Thus, a man who came up on a scene of serious accident for
acting as a rescuer, when suffered a nervous shock, was
allowed to claim the damages
10. In Page v. Smith (1995 ) 2 All ER 736) (House of Lords
case), the plaintiff, though directly involved in the motor
accident remained physically unhurt but suffered a
psychiatric illness.
The House of Lords held the defendant liable for damages
and laid down the following important propositions: -
in cases involving nervous shock, it is essential to
distinguish between the primary victims and secondary
victims;
in claims of secondary victims, the law insists on certain
control mechanisms, to limit the number of potential
claimants;
11. Thus, defendant will not be liable unless the psychiatric
injury/nervous shock is foreseeable in a person of normal
health.
The control mechanism has no place where the plaintiff is a
primary victim.
in claims of secondary victims, it may be legitimate to
use hindsight/observation in order to be able to apply the
test of reasonable foreseeability;
subject to the above, whether the defendant can
reasonably foresee that his conduct will expose the plaintiff
to the risk of personal physical injury or nervous shock?
If the answer is YES, then the duty of care is established,
even though physical injury does not in fact occur.
12. the defendant who is under a duty of care to the plaintiff,
whether primary or secondary victim, is not liable for
damages for nervous shock unless the nervous shock
results in some recognized psychiatric illness.
The tortfeasor must take his victim as he finds him.
A mere bystander not in the vicinity of danger zone and
who suffers injury by nervous shock cannot recover
damages from the defendant.
