Introduction to the Law of Torts

The word tort is of French origin and is equivalent of the English word wrong. It is derived from the Latin
word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked. Tort is
commonly used to mean a breach of duty amounting to a civil wrong.

Salmond defines tort as a civil wrong for which the remedy is a

common law action for unliquidated damages and which is not exclusively the

breach of a contract or the breach of a trust or other merely equitable

obligation.

A tort arises due to a person’s duty to others which is created by one law or the other. A person who
commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one, they are called
joint tortfeaser. Their wrongdoing is called tortuous act and they are liable to be sued jointly and
severally.

The principle aim of the Law of tort is compensation for victims or their

dependants. Grants of exemplary damages in certain cases will show that

deterrence of wrong doers is also another aim of the law of tort.

Evolution of Law of Torts in India

The law of torts in India is mainly the English law of torts which is based on the principles of the
‘common law’. This was made suitable to the Indian conditions in accordance with the principles of
justice, equity and good conscience. However, the application of tort laws in India is not a very regular
event and one can even go to the extent of commenting that tort as a law in India is far from being
looked upon as a major branch of law and litigation. In the Indian legal system, the concept of
‘punishment’ occupies a more prominent place than ‘compensation’ for wrongs.
It has been argued that the development of law of tort in India need not be on the same lines as in
England.

In M.C. Mehta v. Union of India, Justice Bhagwati said, “we have to evolve new principles and lay down
new norms which will adequately deal with new problems which arise in a highly industrialized economy.
We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England
or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever
source it comes but we have to build our own jurisprudence.”

Objectives of Law of Torts

to determine the rights between parties to dispute

to protect certain rights recognized by law

to prevent the continuation or repetition of a harm

to restore the property to its rightful owner

Scope of Tort

Tort & Contract

In a contract, the parties fix the duties themselves whereas in torts, the law fixes the duty.

A contract stipulates that only the parties to the contract can sue and be sued on it (privity of contract)
while in tort, privity is not needed in order to sue or be sued.

In the case of contract, the duty is owed to a definite person(s) while in tort, the duty is owed to the
community at large i.e. duty in- rem.

In contract remedy may be in the form of liquidated or unliquidated damages whereas in tort, remedies
are always unliquidated.

Tort & Crime

The aim of litigation in torts is to compensate the injured party while in crime; the offender is punished
by the state in the interest of the society.

A tort is an infringement of the civil rights belonging to individuals while a crime is a breach of public
rights and duties, which affect the whole community.

Parties involved in criminal cases are the Prosecution verses the Accused person while in Torts, the
parties are the Plaintiff versus the Defendant.

Constituents of Tort

The law of tort is an instrument to enforce reasonable behavior and respect the rights and interests of
one another. 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:

There must be a wrongful act or omission.

The wrongful act or omission must give rise to legal damage or actual damage and;

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.

The wrongful act or omission may however not necessarily cause actual damage to the plaintiff in order
to be actionable. Certain civil wrongs are actionable even though no damage may have been suffered by
the plaintiff.

01. Wrongful Act

An act, which at first, appears to be innocent may become tortuous if it invades the legal right of another
person e.g. the erection in one’s own land which obstructs light to a neighbors’ house. Liability for a tort
arises when the wrongful act amounts to an infringement of a legal right or a breach.

02. Damage

The sum of money awarded by court to compensate damage is called damages. Damage means the loss
or harm caused or presumed to be suffered by a person as a result of some wrongful act of another.
Legal damage is not the same as actual damage.

The real significance of legal damage is illustrated by two maxims namely:

Injuria sine damno and Damnum sine injuria

Injuria sine damno (Injury without damage)

It means violating of a legal right without causing any harm, loss or damage to the plaintiff. There are
two kinds of torts: firstly those torts which are actionable per se, i.e. actionable without the proof of any
damage or loss. For instance, trespass to land, is actionable even though no damage has been caused as
a result of the trespass.

Secondly, the torts which are actionable only on the proof of some damage caused by an act. For
successful actions the only thing which has to be proved is that the plaintiff’s legal right has been
violated, i.e. there is injuria.
Case Law: Refusal to register a voter was held as and injury per-se even when the favorite candidate won
the election – Ashby Vs. White (1703). This rule is based on the old maxim of law, Ubi jus ibi remedium,
which means that where there is a right, there is a remedy.

Damnum sine injuria (Damage without injury)

It means “There may be an injury inflicted without any act of injustice.” There is another term like it that
is “damnum absque injuria“, which means damage or harm without an injury in the legal sense. In other
words a loss or injury to someone which does not give that person a right to sue the person causing the
loss.

Case Laws:

In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles was annoyed by the refusal of
Bradford Corporation to purchase his land for their water undertaking. Out of spite, he sank a shaft on
his land, which had the effect of discoloring and diminishing the water of the Corporation, which
percolated through his land. The House of Lords held that the action of Pickles was lawful and no matter
how ill his motive might be he had a right to act on his land in any manner that so pleases him.

In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship owners combined together. In
order to drive a ship-owner out of trade by offering cheap freight charges to customers who would deal
with them. The plaintiff who was driven out of business sued the ship-owner, for loss caused to him by
their act. The court held that a trader who is ruined by legitimate competition of his rivals could not get
damages in tort.

03. Remedy – Development of Ubi jus ibi Remedium

The law of torts is said to be a development of the maxim ubi jus ibi remedium (there is no wrong
without a remedy). Whenever the common law gives a right or prohibits an injury, it also gives a remedy.
It is an elementary maxim of equity jurisprudence that there is no wrong without a remedy.
The maxim means only that legal wrong and legal remedy are correlative terms.

A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of
wrongs for which the remedy is a civil action for damages. The essential remedy for a tort is an action for
damages, but there are other remedies also e.g., injunction, restitution, etc.

Case Law:

In the case of Abbot v. Sullivan, the court held that there is a right to receive a time-barred debt but
there is no remedy to recover it.

Foundations of Tortious Liability

Tortious liability arises from the breach of a duty primarily fixed by the law: such duty is towards persons
generally and its breach is compensated by an action for unliquidated damages.

• Theory 1: By Winfield – Law of Tort – General Liability: all injuries done to another person are torts,
unless there be some justification recognized by the law

• Theory 2: By Salmonds – Pigeon Theory – Law of Torts: there is a definite number of torts (assault,
battery, defamation) outside which liability in tort does not exist

Case Law:

Rougher, J., described in the case of John Munroe (Acrylics) Ltd. v. London Fire and Civil Defence
Authority, “It is truism to say that we live in the age of compensation. There seems to be a growing belief
that every misforture must, in pecuniary terms at any rate, be laid at someone else’s door, and after
every mishap, the cupped palms are outstretched for the solace of monetary compensation.”

General Elements of Torts

Act & Omission

To constitute a tort, there must be a wrongful act. The word “act” is used to include both positive and
negative acts i.e., acts and omissions. Wrongful acts which make a person liable in tort are positive acts
and sometimes omissions. They must be distinguished from natural calamities, and even from mere
thoughts and intentions.

Failure to do something in doing an act is a bad way of performing the act. For example, if a lawyer gives
an opinion without taking notice of the change in law brought about by a reported decision of the
Supreme Court, he would not be guilty of an omission but of performing the act of giving his opinion in a
bad way.

Where as an omission is failure to do an act as a whole. Generally, the law does not impose liability for
mere omissions. An omission incures liability when there is a duty to act. For example, a person cannot
be held responsible for the omission of not rescuing a stranger child whom he sees drowning even
though he can rescue him without any appreciable exertion or risk of harm to himself. But the result
would be different if a parent or guardian is failed to attempt to rescue the child. In that case, it would be
an omission as there is a duty to act.

Voluntary Acts & Involuntary Acts

A voluntary act may be distinguished from an involuntary act as only voluntary acts have liability.
Voluntary act can be understand based on its willed mascular contraction, its circumstances and its
consequences. For example, an act of murdering a person by shooting at him is one act and not merely
the muscular contraction of pressing the trigger.

An involuntary act does not give rise to any liability. For example, an involuntary act of trespass is not a
tort.
Omissions like positive acts may also be voluntary or involuntary.

In the case of Olga Tellis v. Bombay Municipal Corporation, the Supreme Court held that the
encroachments committed by those persons are involuntary acts in the sense that those acts are
compelled by inevitable circumstances and are not guided by choice.

Mental elements

A voluntary act can be held in strict liability if there’s a presence of required mental element i.e., malice,
intention, negligence or motive in addition to the other necessary ingredients of the torts are present.

O MALICE IN LAW AND IN FACT

Malice means spite or ill-will. However, in law malice has two distinct meanings such as: 1. Intentional
doing of a wrongful act and 2. Improper motive. In the first sense, malice is synonymous with intention
and in the second sense, malice refers to any motive which the law disapproves.

Malice with an intention of wrongful act is called as Malice in Law. It is also called as implied malice. In a
legal sense, malice means a wrongful act, done intentionally, without just cause or excuse. For example,
if a person give a perfect stranger a blow likely to produce death, the person do it out of malice because,
he do it intentionally and without just cause or excuse.

Malice with an improper motive is called as Malice in fact. It is also called as express malice. Malice in
fact is liable for malicious prosecution.

Wrongful acts of which malice is an essential element are:

Defamation
Malicious prosecution

Willful and malicious damage to property

O INTENTION, NEGLIGENCE AND RECKLESSNESS

Intention is an internal fact, something which passes in the mind and direct evidence of which is not
available. There’s a popular saying that it is common knowledge that the thought of man shall not be
tried, for the devil himself knoweth not the thought of man.

In general terms, negligence is “the failure to use ordinary care” through either an act or omission. That
is, negligence occurs when:

somebody does not exercise the amount of care that a reasonably careful person would use under the
circumstances; or

somebody does something that a reasonably careful person would not do under the circumstances.

In the case of Dulieu Vs. White & Sons (1901), the plaintiff, a pregnant woman, was sitting behind the
counter of her husband?s bar when suddenly a horse was driven into the bar. Fearing her personal
safety, she suffered nervous shock and gave birth to a premature baby. In the circumstances, the court
held that the plaintiff was entitled to recover in negligence.

Recklessness is also called as gross negligence. Gross negligence means conduct or a failure to act that is
so reckless that it demonstrates a substantial lack of concern for whether an injury will result. It is
sometimes necessary to establish “gross negligence” as opposed to “ordinary negligence” in order to
overcome a legal impediment to a lawsuit. For example, a government employee who is on the job may
be immune from liability for ordinary negligence, but may remain liable for gross negligence.

O MOTIVE

Motive is the ulterior object or purpose of doing an act. It differs from intention in two ways. First,
intention relates to the immediate objective of an act, whereas, motive refers to the ulterior objective.
Secondly, motive refers to some personal benefit of satisfaction which the actor desires whereas
intention need not be so.

For example, When A poisons B, the immediate objective is to kill B and so this is A’s intention. The
ulterior objective of A may be to secure B’s estate by inheritance or under a will executed by him and this
objective will be A’s motive. Motive is generally irrelevant in tort.
In the case of Mayor & Co. of Bradford v. Pickles, A sank a well on his land and thereby cut off
underground water-supply from his neighbour B, and B’s well was dried up. It was not unlawful for a
land-owner to intercept on his own land underground percolating water and prevent it from reaching
the land of his neighbour. The act did not become unlawful even though A’s motive in so doing was to
coerce B to buy his land at his own price. A, therefore, was not liable to B, however improper and
malicious his motive might be.

O MALFEASANCE, MISFEASANCE, NON-FEASANCE

The term “Malfeasance” applies to the commission of an unlawful act. It is generally applicable to those
unlawful acts, such as trespass, which are actionable per se and do not require proof of intention or
motive.

The term “Misfeasance” is applicable to improper performance of some lawful act for example when
there is negligence.

The term “non-feasance” applies to the omission to perform some act when there is an obligation to
perform it. Non-feasance of gratuious undertaking does not impose liability, but misfeasance does.

M.C. Mehta v. Union of India

O FAULT

If mental elements such as intention, negligence, malice or motive together with an act or omission
which is violative of a right recognized by law plays an important role in creating liability. Such tortious
liability has an element of fault to support it. But there is a sphere of tortious liability which is known as
absolute or strict liability, where the element of fault is conspicuously absent.

In the case of M.C. Mehta v. Union of India, the rule of strict liability is laid down that an enterprise
engaged in a hazardous or inherently dangerous activity is strictly and absolutely liable for the harm
resulting from the operation of such activity.
Study Notes on Law of Torts – UNIT II

General Defenses

Justification of Torts

O ACT OF STATE

An act of State is outside the ordinary law, it is essentially an exercise of sovereign power as a matter of
policy or political expediency. For example, when the person or the property of a person who is not a
British-subject and who is not residing in British territory is injured by an act “done by any representative
of Her Majesty’s authority, civil or military, and which is either previously sanctioned or subsequently
ratified by Her Majesty, the person injured has no remedy for such an act is an act of State.

In the often quoted case of Buron v. Denman, the defendant, a captain in the Royal Navy, released the
slaves and set fire to the slave barracoons of the plaintiff, a Spaniard, on the West coast of Africa, outside
British dominions. The defendant originally had no authority but his act was ratified by the Crown. It was
held that the plaintiff had no remedy against the defendant.

O JUDICIAL ACTS

The Judicial Officers Protection Act, 1850 – Under this Act, no Judge, Magistrate, Justice of the Peace,
Collector, or other person acting judicially, can be sued in any Court, for any act done by him in the
discharge of his judicial duty. Provided that such acts were done in good faith.

O EXECUTIVE ACTS

The State and its officers are not liable when the wrongful act falls within the purview of Act of State.
The State is also vicariously liable for torts committed by its officers in the course of employment except
when they are committed while discharging traditional sovereign functions.

State of Rajasthan v. Prakash Chand

O VOLENTI NON FIT INJURIA – LEAVE AND LICENCE

The general rule is that a person cannot complain for harm done to him if he consented to run the risk of
it. For example a boxer, foot baler, cricketer, etc cannot seek remedy where they are injured while in the
game to which they consented to be involved. Where a defendant pleads this defense, he is in effect
saying that the plaintiff consented to the act, which he is now complaining of. It must be proved that the
plaintiff was aware of the nature and extent of the risk involved.

In the case of Khimji Vs Tanga Mombasa Transport Co. Ltd (1962), the plaintiffs were the personal
representatives of a deceased who met his death while traveling as a passenger in the defendant’s bus.
The bus reached a place where road was flooded and it was risky to cross. The driver was reluctant to
continue the journey but some of the passengers, including the deceased, insisted that the journey
should be continued. The driver eventually yielded and continued with some of the passengers,
including the deceased. The bus got drowned together with all the passengers aboard. The deceased’s
dead body was found the following day.

It was held that the plaintiff’s action against the defendants could not be maintained because the
deceased knew the risk involved and assumed it voluntarily and so the defense of Volenti non fit injuria
rightly applied.

O ADMINISTRATIVE ACTS

Dunlop v. Woolhara Municipal Council

O ACTS OF GOVERNING BODY

O PARENTAL & QUASI-PARENTAL AUTHORITY

Sankunni v. Swaminatha Pattar

O AUTHORITIES OF NECESSITY

Lamb v. Burnett

O STATUTORY AUTHORITY

When the commission of what would otherwise be a tort, is authorized by a statute the injured person is
remediless, unless so far as the legislature has thought it proper to provide compensation to him. The
statutory authority extends not merely to the act authorized by the statute but to all inevitable
consequences of that act. But the powers conferred by the legislature should be exercised with
judgment and caution so that no unnecessary damage is done, the person must do so in good faith and
must not exceed the powers granted by the statute otherwise he will be liable.
In the Case of Vaugham Vs. Taffvale Railway Co. (1860), A railway company was authorized by statute to
run a railway, which traversed the plaintiff’s land. Sparks from the engine set fire to the plaintiff’s woods.
It was held that the railway company was not liable. It had taken all known care to prevented emission of
sparks. The running of locomotives was statutorily authorized.

O INEVITABLE ACCIDENT

This means an accident, which cannot be prevented by the exercise of ordinary care, caution or skill of
an ordinary man. It occurs where there is no negligence on the part of the defendant because the law of
torts is based on the fault principle; an injury arising out of an inevitable accident is not actionable in
tort.

In the case of Stanley Vs. Powell (1891), the plaintiff was employed to carry cartridge for a shooting party
when they had gone pheasant-shooting. A member of the party fired at a distance but the bullet, after
hitting a tree, rebounded into the plaintiff’s eye. The plaintiff sued. It was held that the defendant was
not liable in the light of the circumstance of inevitable accident.

O ACT OF GOD

This is also an inevitable accident caused by natural forces unconnected with human beings e.g.
earthquake, floods, thunderstorm, etc.

In the case of Nichols Vs. Marshland (1876), the defendant has a number of artificial lakes on his land.
Unprecedented rain such as had never been witnessed in living memory caused the banks of the lakes to
burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the
plaintiff’s bridges were swept by act of God and the defendant was not liable.

O NECESSITY

Where intentional damage is done so as to prevent greater damage, the defense of necessity can be
raised. Sometimes a person may find himself in a position whereby he is forced to interfere with rights of
another person so as to prevent harm to himself or his property.

In the case of Esso Petroleum Ltd. Vs. Southport Corporation (1956), it was held that the safety of human
beings belongs to a different scale of value from the safety of property. These two are beyond
comparison and the necessity for saving life has all times been considered, as a proper ground for
inflicting such damage as may be necessary upon another’s property.

O PRIVATE DEFENCE

Everyone has a right to defend his person, property and family from unlawful harm. A person who is
attacked does not owe his attacker a duty to escape. Everyone whose life is threatened is entitled to
defend himself and may use force in doing so. The force used must be reasonable and proportionate to
that of the attacker. Normally, no verbal provocation can justify a blow

Morris v. Nugent

O PLAINTIFF A WRONG DOER

Bird v. Holbrook

National Coal Board v. England

Pitts v. Hunt

O ACTS CAUSING SLIGHT HARM

Holford v. Bailey

Vicarious Liability

Liability for wrongs committed by others. Generally, a person is liable for his own wrong doings.

Liability By Ratification

In the course of authority

Should be made by principal with full knowledge about the wrongful act

illegal and unlawful acts cannot be ratified

Liability By Relationship between the two (Master & Servant)

MASTER-SERVANT: WHEN MASTER IS LIABLE

Dharangadhara Chemical Works Ltd. v. State of Sourashtra

Mersey Docks and Harbour Board v. Coggins & Griffith (Liver Pool) Ltd.
Lllyod v. Grace Smith Co.

Gregory v. Piper

Bayley v. Manchester Rly. Co.

Lionpus v. London General Omni Bus Co.

Ricett v. Thas Trilling

Master-Servant: When Master is not Liable

Williams v. Jones

Storey v. Ashton

Paulton v. London & S.W. Rly. Co.

General Engg. Services Ltd. v. Kingston Cheshire

MASTER-INDEPENDENT CONTRACTOR

PRINCIPAL-AGENT

COMPANY & DIRECTORS

PARTNERSHIP FIRMS & PARTNERS

GUARDIAN & WARD

Liability By Abetment

In actions of wrong, those who abet the tortious acts are equally liable with those who commit the
wrong. A person who procures the act of another is legally responsible for its consequences

If he knowingly and for his own ends induces that other person to commit an actionable wrong, or

when the act induced is within the right of the immediate actor and, therefore, not wrongful so far as
the actor is concerned, but is detrimental to a third party and the inducer procures his object by the use
of illegal means directed against that third party