LAW OF TORT

SUB-MODULE 1.1
TORT: MEANING AND
DEFINITION

MEANING & CONCEPT

The term 'tort' is French in origin which is synonym to 'wrong' in English
version. The Roman word 'delict' and Sanskrit word 'Jimha' depict same the
meaning. The term 'tort' is derived from the Latin root word 'tortum' which
literally means 'something that is twisted or crooked.' Therefore, tort is a
conduct which is not straight or lawful but is twisted, crooked and unlawful.
The concept of tort appears when a breach of some duty is caused which is
independent of implied contract giving rise to a civil cause of action and for
which compensation can be claimed and damage is recoverable.
In simplest words, tort is a civil wrong. A wrongful act or omission under civil
law by which the legal rights of a person are violated falls under the category
of torts.
A wrongful act can be either Public Wrong (Crime) or Private Wrong (Civil
wrong). Civil wrong is further classified under three categories, namely:

i. Breach of Contract
ii. Breach of Trust
iii. Tort.

Tort is the only law which is un-codified and derives its origin from the
decisions of the House of Lords in England. The law of Tort is created and
developed by courts as it is not codified into an act or statute. Tort is an
important branch of law in common law countries like India.

The person committing a tort is called a 'tortfeasor', and if there is more than 1
offender, they are termed as 'joint tortfeasors'. Their wrongdoing is called a
tortious act, and they can be sued jointly or individually.

Definition of Tort

Many authors have defined the term 'tort' but so far, its definition is still
in a growing stage, and it would be difficult to accept any single definition
which could define tort in wholesome manner.

A workable definition of tort may be as: -A civil wrong which is

independent of implied contract for which the appropriate remedy is an
action for unliquidated damages.
1. Section 2(m) of the Limitation Act, 1963, tort means a civil wrong
which is not exclusively a breach of contract or a breach of trust.
2. According to John 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. According to Richard Dien Winfield, Tortious liability emerges
from the breach of a duty primarily fixed by the law, this duty is
towards the other people generally and its breach is redressable by
an action for unliquidated damages.
4. According to Fraser, A tort is an infringement (violation) of a right
in rent of a private individual giving a right of compensation at the
suit of the injured party.
TORT AND OTHER WRONGS (DISTINGUISHED)
TORT AND CRIME
1. A tort is basically a private wrong, i.e., it is the infringement of a
person’s right, rights in persona, in other words, it is an infringement
of a personal right. While a crime is a public wrong, i.e., is against
the whole world and the state, it is an infringement of, right in rem,
in other words, it is an infringement of the public right.
2. The remedy in the case of law of torts is in the form of damages,
while in the case of a crime, it is in terms of punishment.
3. In the case of a tort, a suit is filed. Whereas, in the case of a crime, a
complaint is filed.
4. The law of torts is an uncodified law whereas law of crimes is a
codified law.
5. In tort, intention is important but not in all cases, whereas in the case
of criminal law intention is the crux of the offence itself.
TORTS AND BREACH OF CONTRACT
1. In the case of a tort the duty is fixed by the law, whereas in the case
of a contract the duty is fixed by the parties involved.
2. In the case of a tort, the duty is towards everyone in society, whereas
in the case of a contract, the duty is towards specific individuals only.
3. Motive is often considered in the case of a tort, while, in the case of
a contract, motive is irrelevant.
4. The damages in the case of a tort are different under different
circumstances, whereas, in the case of a contract, the damages are in
the form of compensation for the loss suffered in a peculiar form.
5. In the case of a tort, intention is taken into consideration in some
cases, whereas, in the case of a breach of contract, intention is
irrelevant.
 TORTS AND BREACH OF TRUST
1. In the case of a tort, the compensation is in the form of
unliquidated damages, whereas, in the case of breach of trust, the
compensation is in the form of liquidated damages.
2. The law of torts originated as a part of common law whereas
breach of trust could be redressed in the Court of Chancery.
3. The law of trust is regarded as a division of the law of property,
whereas law of tort is not regarded as a division of the law of
property.
ESSENTIALS OF TORT

When the interest is protected, it gives rise to a legal right which in turn
gives rise to a corresponding legal duty. Some legal rights are absolute,
and its mere violation leads to the presumption of legal damage. To
constitute a tort or civil injury following ingredients are necessary:
(a) A wrongful act or omission on the part of a person.

(b) That wrongful act or omission must result in legal damage to another;

and
(c) 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.

(a) WRONGFUL ACT OR OMISSION:
A wrongful act or omission (Left Out) is said to have been committed
by a person who has not performed his duty like a reasonable and prudent
person or has broken it intentionally.
Austin is a 'faculty' which resides in a determinate party or parties by virtue
of a given law, and which avails against a party other than the party or
parties in whom it resides. For example, 'A' erects a wall on his land which
obstructs the light to B's house. Although it is undoubtedly a lawful act to
erect a building on one's own land but since the neighbor has enjoyed
uninterrupted light for years, he has acquired the legal right to have this
enjoyment, so erection of construction by A on his own land is an invasion
of the right of B hence, not only damage but it is also unlawful and
injurious.
A wrongful act may be a positive act or an omission which can be
committed by a person either: -
1. Negligently- Negligence means when a person does not act with
care and caution and is said to be careless while performing his duty
without applying prudence.
2. Intentionally- Intention signifies full advertence in the mind of the
defendant to his conduct which is in question and to its
consequences, together with a desire, for those consequences.
3. By committing a breach of strict duty- Breach of strict duty speaks
about liability of person even though he is not at fault.
(b) LEGAL DAMAGE
Legal damage is the second important ingredient in constituting a tort.
Damage means the harm or loss suffered or presumed to be suffered by a
person as a result of some wrongful act done by another person. The sum
of money which is awarded by the Court to compensate 'damage' is called
"damages".
Based on presumption of damage rights are of two types: (i) absolute and
(ii) qualified.
In case of violation of absolute right, the law conclusively presumes
damage although the person wronged may have suffered no pecuniary loss
whatsoever. The damage so presumed is legal damage. In qualified rights,
there is no presumption of legal damage, and the violation of such right is
actionable only on proof of actual or special damage. In this case injury or
wrong is not complete unless and until actual damage has been caused by
violating the rights.
In Ashby v. White, (1703), the plaintiff's legal right to vote in the
parliamentary election was maliciously violated by the defendant and
the defendant was held liable although the plaintiff not incurred any
pecuniary loss.
Lord Hott, C.J.; observed-"Every injury imports a damage, though it does
not cost the party one farthing, and it is impossible to prove the contrary
for a damage is not merely pecuniary, but an injury imports a damage,
when a man is thereby hindered of his right".
In the words of IHERING - 'Rights are legally protected interests'. Right
may be divided into two types: Private and Public. Private rights are
those rights which vest in a person by virtue of law. The right to
reputation, right to bodily safety and freedom, right to property etc. fall
under this category. So, if a person has legal (private) right others have a
duty towards him not to violate his rights. If his legal right is infringed
without lawful excuse, he has a right of action against the person who
infringes or violates it.
Public rights are those rights which belong to everyone as common
people, or they belong in common to the members of the State generally.
In case of violation of public rights, the State acts against the offender.
For example, public peace is a right of everyone and if someone breaks it
then he will be held liable and will be punished under law.
THE FACTUAL SIGNIFICANCE OF LEGAL DAMAGE IS
ILLUSTRATED BY TWO MAXIMS NAMELY:
A. Injuria since damno.
B. Damnum sine injuria.
A. Injuria sine damno: - Injuria sine damno means injury without
damage. Such damage is actionable under the law of torts. It occurs
when a person suffers legal damage instead of actual loss, i.e., his legal
right is infringed by some other individual. In other words, this is an
infringement of an absolute private right of a person without having
suffered any actual loss.
An example of this can be the landmark case of Ashby v. White (1703)
92 ER 126, where Mr. Ashby, the plaintiff, was prevented from voting by
the constable Mr. White. This rule is basically based on the old maxim
“Ubi jus ibi remedium” which translates to “where there is a right, there
will be a remedy.”
Bhim Singh v. State of J and K, whe
re the plaintiff was a member of the parliament and was not allowed to
enter the premises of the Assembly election by a police constable, hence
his legal right was infringed.
B. Damnum sine injuria: - whereas translates to damage without injury,
here the party affected suffers damage which may also be physical but
suffers no infringement of their legal rights. In other words, it means
the occurrence of an actual and substantial loss to a party without any
infringement of a legal right. Here no action lies in the hands of the
plaintiff as there is no violation of a legal right.
DISTINCTION BETWEEN INJURIA SINE DAMNO AND
DAMNUM SINE INJURIA
(1) On the one hand, i.e., in the case of Injuria sine damno there is no
physical damage or an actual loss on the part of the plaintiff while on the
other hand in the case of damnum sine injuria there is actual damage and
loss on the part of the plaintiff.
(2) Secondly, in the case of Injuria sine damno, the party suffers from the
infringement of their legal rights, while in the case of Damnum sine
injuria, there is no legal right infringement.
(3) Thirdly, Injuria sine damno is actionable in the court while Damnum
sine injuria is not actionable in court.
(4) Fourthly, the Injuria sine damno deal with the legal wrongs while
Damnum sine injuria deals with the moral wrongs.
(c) LEGAL REMEDY

In tort, the wrongful act must come under the category of wrongs for
which the remedy is a civil action for damages. Legal remedy is the third
essential for an action in tort. A tort is a civil injury, but all civil injuries
are not torts. The essential remedy for a tort is an action for damages but
there are other remedies also for example injunction may be obtained in
addition to damages in certain cases of wrongs or an action by the plaintiff
himself without going to the court i.e., self-help.
Mathematically tort can be summarized as follows:
Wrongful act + Legal Damage + Legal remedy = Tort

UBI JUS IBI REMEDIUM

The law of torts has developed from the maxim "ubi jus ibi remedium"
i.e., there is no wrong without a remedy, Jus, means 'the legal authority
to do or to demand something' and 'remedium' signifies the right of
action or the means given by law for the recovery or assertion of a right.
We can also look upon this maxim which says-'Where there is a right,
there is a remedy'.
In the case, Ashby v. White, Holt, C.J., laid down that 'if the plaintiff
has a right, he must of necessity have a means to vindicate and maintain
it, and a remedy if he is injured in the exercise of enjoyment of it, and
indeed it is a vein thing to imagine a right without a remedy for want of
right and want of remedy are reciprocal'.
FOUNDATION OF TORTIOUS LIABILITY
Theories of tortious liability given by Winfield & John Salmond.

Jurists do not have the same opinion as to what constitutes the foundation
of tortious liability. Winfield has given two competing theories:
(i)All injuries done to another person are torts, unless there is some
justification recognized by law.
(ii) There are a definite number of torts outside which liability in tort does
not arise.
The first theory has got support from Sir Fredrick Pollock as well as
from eminent judges. Winfield says that - if I injure my neighbor, he can
sue me in tort whether the wrong happens to have a particular name viz.
assault, battery, deceit, slander or even in absence of such names and I
shall be liable if I fail to prove lawful justification. On this view, the law
of tort/torts consist not merely of all those torts which have acquired
specified names but also includes the wider principle that all
unjustifiable harms are tortious.
The second theory is also known as the pigeon-hole theory. According
to this theory the law of torts consists of a net-set of pigeon-holes, each
containing a specific tort. For example, assault, battery, deceit, slander
or any other tort. If the wrong committed by defendant does not fit in
any of these pigeon-holes, then he has committed no tort. Sir John
Salmond, an ardent supporter of this theory says, "Just as the criminal
law consists of a body of rules establishing specific offences, so the law
of torts consists of a body of rules establishing specified injuries. Neither
in one case nor in the other is there any general principle of liability.
Whether I am prosecuted for an alleged offence or sued for an alleged
tort, it is for my adversary to prove that the case falls within some
specific and established rule of liability, and not for me to defend myself
by proving that it is within some specific and established rule of
justification or excuse.
NATURE OF TORT

1. A tort is a civil wrong: One must be aware that there are two
types of wrongs: Civil and Criminal wrong. Tort comes under the
purview of civil law and its wrong is known as a civil wrong. The
distinction becomes important because unlike in criminal law there
is no punishment in civil laws and matter is to be sued by a person
himself and is not sued by the state further the compensation is
granted in for of unliquidated damages which is not the case in
criminal law.
2. A tort is an infringement of a right in rem: There are two types
of rights, right in rem and right in person. While the right in rem is
available against thewholeworld whereas right in persona is available
against any individual.
E.g.: - Such as when a person contracts with another person and one of
the parties hasbreached that contract, then the person whose contract has
been breached can only sue the person who has breached the contract.
This is known as Right in persona i.e., one can sue to one whom he has
contracted.

E.g.: - On the other side, every person has the right to the enjoyment of
his own property and any person who has violated or infringed he will
be sued and liable to pay compensation in the form of unliquidated
damages. This is known as right in rem which is available against the
whole world.

This way the tort law is right in rem and is available against the whole
world. There is no need for any pre-existing relation, the only
requirement is the existence of right and that right has been breached by
a person.
Right in rem is not specific to any individual, which is the beauty of
the Law of Torts, one can sue a person who has breached a right
with norelation at all.

3. Torts law is uncodified: Codified laws are laws, which have

written statutes and acts on that subject and changes take place by
the process of amendment in the parliament, it can be distinguished
from uncodified laws which don’t haveany written statutes or acts
and must rely on precedents and case laws and change can be
possible without the intervention of the government. Thus, the law
of torts is totally based on precedent and developed through
different case laws, it can be healthily said that law of tort law is
uncodified unlike Criminal law and Contract law which are
completely codified, and precedents don’t play a major role that it
plays in Laws of Torts.

MENTAL ELEMENT IN TORTIOUS LIABILITY

Every voluntary act requires a mental element to fasten the liability of

the wrongdoer. Generally, the concept of mental element is crucial in
criminal law which has (Actus reus (Crime) as well as men’s rea).
Whereas, in the law of torts, actus reus is the main component and the
mental element, i.e., men’s rea(intention) is composed when there is
malice, motive, and intention.

MALICE
Malice, in a literary sense, means ill will. It has two distinct meanings,
the first one being intentional doing and second being improper motive.
In intentional doing, there is intention to do the wrongful act which
causes injury to a person. The term improper motive means that it does
not include any spite will, but also any motive which the law disapproves.
In the words of Bayley J., “Malice in common acceptation means ill-will
against a person, but in its legal sense it means a wrongful act, done
intentionally, without just cause or excuse.”
A wrongful act that is done with knowledge and has injurious
consequences may be called malicious. The term malice has two
branches which are malice in law and malice. The term malice in law
means intentional wrongdoing or an act done wrongfully and without
reasonable and probable cause and not as in common parlance. It is the
implied wrong as in the case of defamation. Malice in fact means
improper motive as actual malice and express malice as in the case of
malicious prosecution.
Exceptions to unintentional torts are Deceit, Malicious prosecution,
Assault, Conspiracy.
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 or satisfaction which the act or
desires whereas intention need not be so related to the actor. 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.

SUB-MODULE 1.2
 GENERAL DEFENCES UNDER THE LAW OF TORTS
Meaning of General Defences under the Law of Torts: –

When a plaintiff acts against the defendant for a tort committed by the
defendant, he shall be held liable for it, if all the necessary material
necessary for that wrong are present. But there are some defences
available to the defendant by which he can free himself from the liability
of the wrong done. These are known as general defences under the law
of torts. Therefore, in some cases, the defendant can avoid liability by
taking the plea of the general defences available under law of torts.

General defences are considered a collection of defences or excuses that

the defendant undertakes to flee liability charged, but if the action has
undergone a selected set of condition that deals with the defences under
the law of torts.
The general defences under the law of torts are given as follows: –
1. Voluntary Non-Fit Injuria or Defence of ‘Consent’
2. Plaintiff is the Wrongdoer
3. Inevitable accident
4. Act of God
5. Private Defence
6. Mistake
7. Necessity
8. Statutory Authority
 1. VOLUNTARY NON-FIT INJURIA OR DEFENCE OF
‘CONSENT’
2.
Meaning of Volenti Non-Fit Injuria: – Voluntary Non-Fit Injuria means,
when the plaintiff voluntarily suffers any harm, then he has no remedy for
that under the law of tort and he is not allowed to complain about the same.
For example, once you invite your relatives to your house then you cannot
sue them on the costs of trespass, doctors can’t be sued after the surgery
done by them.
In volenti non fit injuria, if a plaintiff gave his consent to a wrongful act
with free content, either express or implied, under no pressure of fraud or
coercion, with voluntary acceptance of risk, then he has no right to sue the
defendant. Also, there should be a duty on behalf of others.
There are 2 essential elements in this defence: –
a) The plaintiff has knowledge of the risk.
b) The plaintiff with the knowledge of risk has voluntarily agreed to
suffer the harm.
1. Consent of the Plaintiff
The consent of the plaintiff is very important in the defence of volenti non
fit injuria because only when he voluntarily gives his consent to an act, the
defendant can take this defence.
In the case of Hall v. Brookland (1932) All E.R. Rep 208, the plaintiff went
to see a car race in which two cars collided with each other and as a result
of the collision, the plaintiff who was sitting as an audience was also injured
when one of the cars flew into the audience. Here the defence of volenti
non fit injuria was applied because the plaintiff had given his consent to
such a risk by going to the race.
2. Consent may be Express or Implied
In the cases of this defence, the consent of the defendant is not required to
be expressly given and even by his conduct, his consent can be taken.
Illustration: C is a cricket player and due to a full toss ball, he gets hits by
it on his shoulder. Here C cannot claim any damages because C has
consented to the risk by agreeing to play cricket.
Illustration: A goes to watch a cricket match and while watching the match
the batsman hits a six that hurts A’s hands when he attempts to catch it.
Here A cannot hold the batsman or the owner of the Cricket stadium liable
because he had impliedly consented to this injury by his act of purchasing
the ticket and sitting in the stadium and thus despite no express consent, the
defence of volenti non fit injuria will apply here and his consent will be
deemed to be implied for such injury.
3. The consent of the Plaintiff must be free.
When a plaintiff gives his consent for an act such consent should be free
from any coercion, fraud or any other such means by which the free consent
can be affected.
For e.g., A has a heart problem, and he goes to a hospital for surgery. There
he is informed by the surgeons that the required surgery is very complicated
and there is a chance of the surgery failing which can cause his death. If A
gives his consent to have the surgery and the surgeon, despite taking all
reasonable care in doing the surgery is not able to save A, then the surgeon
cannot be held liable because A had given his consent for it and this consent
was given freely.
In case the consent of a person is not free, the defendant cannot claim this
defence to escape liability and he will be held liable for damage caused.
For e.g., A having heart problem goes to a surgeon and he is told that he
needs surgery to which he agrees. During the surgery, the surgeon removes
one kidney of A without his knowledge. In this case, even though the
surgery is successful the surgeon will be held liable because A did not give
his consent to the removal of his kidney.
In the case of Ravindra Padmanabhan (Dr.) vs Lakshmi Rajan And Anr.,
the plaintiff had a tumor on her breasts and therefore she went to the
hospital to have it removed. While operating on her the doctor also removed
the uterus even though it had nothing to do with the tumor. Thus, the Court
held the defendants liable and thus, the defence of volenti non fit injuria
was rejected.
In the case of Padmavati v. Dugganaika, the plaintiffs had asked for a lift
in the jeep of the defendants and while travelling in it one of the screws of
the wheel of the jeep fell out, as a result, the jeep crashed and it caused the
death of one of the plaintiffs. In the case, the Court held that the defence of
volenti non fit injuria will apply and thus the defendants were not liable
because by sitting in the jeep the plaintiffs had assumed the risk of being
injured in an accident.
4. Consent by fraud
In cases of consent having been obtained by fraud, the defence of volenti
non fit injuria will not apply and the defendant will be held liable for the
wrong by him.

For e.g., in the case of R v. Williams, the defendant was a singing coach
and he had convinced a 16-year-old student to have sexual intercourse with
him by telling her that it would help her in improving her voice and singing.
The defendant was held liable by the Court because the consent was
obtained by fraud.

LIMITATIONS ON THE APPLICATION OF VOLENTI NON FIT

INJURIA

There are certain limitations under which the defence of volenti non fit
injuria cannot be taken by a defendant even if the essentials of this defence
are present in the case.

Rescue Cases

When the plaintiff suffers an injury as a result of him doing an act which
he knows is likely to cause harm to him, but it is an act to rescue someone,
then this defense will not apply, and the defendant will be held liable.

Illustration: A fire is caused due to the negligence of A, and B is trapped

inside the fire. C sees B and jumps into the fire to rescue him but in doing
so he is also burned. Here even though C went into the fire voluntarily,
knowing fully well that he may be burned, A will be held liable for
negligence and the defense of volente non fit injuria cannot be applied in
this case, therefore, C will is entitled to receive damages from A.

In the case of Haynes v. Harwood (1935), the servant of the defendant

brought two horses into the town near a police station and left them to do
some other work. The horses were upset by the children, and they broke
free, seeing them in rage the plaintiff who was a police officer went to stop
the horses and in doing so he got injured and brought a case against the
owner for damages. The court held the defendant liable because the defence
of volenti non-fit injuria did not apply in a rescue case.
3. PLAINTIFF’S FAULT OR PLAINTIFF, THE WRONGDOER:
-
Meaning of Plaintiff is the wrongdoer: - Sometimes the defendant can take
the defense, when the plaintiff is the wrongdoer. There is a maxim “Ex
turpi causa non oritur action” which says that “from an immoral cause,
no action arises”. The law excuses the defendant when the act done by the
plaintiff itself was illegal or wrong. If the grounds of action by the plaintiff
are unlawful, he will not succeed in his actions and cannot recover damages.
The principle behind this defense is a simple one, if the plaintiff is himself
at fault, then no liability arises out of a tortious act by the defendant. This
is different from volenti non fit injuria, because here an act of the plaintiff
leads them to suffer harm while in the former, the plaintiff consents to the
harm.
For Example: – ‘A’ has the duty to maintain an overbridge which was not
in a good condition, ‘B’ the plaintiff was getting goods which were beyond
the permissible limit and while, the truck was on the bridge, the bridge
Shaked and the plaintiff suffered losses. It was held that the Plaintiff also
acted wrongly in this case.
In the case of Bird v. Holbrook, the plaintiff was entitled to recover
damages suffered by him because of the spring guns set by him in his
garden with no notice for the identical.
If a defendant claims that the plaintiff himself is the wrongdoer and is not
entitled to damages, it does not mean that the court will declare him free
from liability but that he will not be liable under this head.

4. ACT OF GOD
Meaning of Act of God: – An act of God is an unforeseeable natural
phenomenon. Act of God is something which involves no human agency,
which is not realistically possible to guard against, which is due directly
and exclusively to natural causes and which could not have been prevented
by any amount of foresight, plans, and care.
In the law of torts, an Act of God may be asserted as a type of intervening
cause, the lack of which would have avoided the cause or diminished the
result of liability (e.g., but for the earthquake, the old, poorly constructed
building would be standing). However, foreseeable results of unforeseeable
causes may still raise liability. For example, a bolt of lightning strikes a ship
carrying volatile compressed gas, resulting in the expected explosion.
Liability may be found if the carrier did not use reasonable care to protect
against sparks regardless of their origins. Similarly, strict liability could
defeat a defense for an act of God where the defendant has created the
conditions under which any accident would result in harm. For example, a
long-haul truck driver takes a shortcut on a back road and the load is lost
when the road is destroyed in an unforeseen flood.
The act of God serves as a good defence under the law of torts. It is also
recognized as a valid defence in the rule of ‘strict liability’. Act of God and
defence of inevitable accident may look the same but they are different.
Some extraordinary occurrence of natural forces is required to plead the
defence under the law of torts. The act of God is a kind of inevitable
accident in which natural forces play their part and cause harm. For
example, heavy rains, storms, tides, etc.

The essentials required for this defence are: –

a) Must be the work of natural forces.
b) Must be an extraordinary event, not an event that can be
reasonably predicted and avoided.
In Nichols vs. Marsland, the defendant created an artificial lake on his
land by collecting water from natural streams. Once there was an
extraordinary rainfall, the heaviest in human memory. The embankments
of the lake got destroyed and washed away all the four bridges belonging
to the plaintiff. The court held that the defendants were not liable as the
same was due to the Act of God.
 5. INEVITABLE ACCIDENT
Meaning of Inevitable Accident under Law of Torts: – An inevitable
accident is a general defense in the law of torts. The inevitable accident
which is also known as unavoidable accident says that a person cannot be
held liable for an accident which was not foreseeable despite all care and
caution taken from his side. Act of God can also be sometimes classed in
inevitable accidents.
Accident means an unexpected injury and if the same accident could not
have been stopped or avoided despite taking all due care and precautions
on the part of the defendant, then we call it an inevitable accident. It serves
as a good defense as the defendant could show that the injury could not be
stopped even after taking all the precautions and there was no intent to harm
the plaintiff.
In Stanley v. Powell, the defendant and the plaintiff went to a pheasant
shooting. The defendant fired at a pheasant but the bullet after getting
reflected by an oak tree hit the plaintiff and he suffered serious injuries. The
incident was considered an inevitable accident and the defendant was not
liable in this case.

In Shridhar Tiwari v. U.P. State Road Transport Corporation, a bus of

U.P.S.R.T.C. reached near a village where a cyclist suddenly came in front
of the bus, and it had rained heavily so even after applying breaks the driver
could not stop the bus as a result of this the rear portion of the bus hit
another bus which was coming from the opposite side. It was known that
there was no negligence on the part of either of the drivers and they tried
their best to avoid the accident. This was held to be a case of inevitable
accident. The defendant i.e., U.P.S.R.T.C. was held not liable for this act.

In Padmavati v. Duggan Aika, the driver of the jeep took the jeep to fill
petrol in it. Two strangers took a lift in the jeep. The jeep got toppled due
to some problem in the right wheel. The two strangers who took lift were
thrown out of the jeep and they suffered some injuries leading to the death
of one person.

The conclusions which came out of this case are:

I. The master of the driver could not be made liable as it was a case of
a sheer accident and the strangers had voluntarily got into the vehicle.
II. The principle of volenti non fit injuria was not applicable here.
III. It was a case of a sheer accident which no one could foresee.

6. NECESSITY
Meaning of Necessity under Law of Torts: – The doctrine of necessity states
that if an act is done and it causes harm, but it is done in good faith in order
to prevent harm, the person who does such an act is not liable. If an act is
done to prevent greater harm, even though the act was done intentionally,
is not actionable and serves as a good defense.
It should be distinguished with private defense and an inevitable accident.
This is so provided that the harm caused due to an act done in necessity
should not be intentional in nature. If an act is done to prevent further harm,
even if that act was intentional, is not actionable and serves as a good
defense. It should be distinguished from personal defence and an
unavoidable accident.

Necessity is a defence to both the criminal law and the civil law, that is, if
an action was ‘necessary’ to prevent greater harm that can be used to avoid
both criminal and civil liabilities. Necessity is defined under Section 81 of
the Indian Penal Code as “Act likely to cause harm, but done without
criminal intent, and to prevent other harm. Nothing is an offence merely by
reason of its being done with the knowledge that it is likely to cause harm,
if it be done without any criminal intention to cause harm, and in good faith
for the purpose of preventing or avoiding other harm to person or property.”
The following points should be considered: –
➢ In the case of personal defence, the plaintiff himself is guilty of
causing injury.
➢ Damage is done intentionally, when necessary, whereas in case of an
inevitable accident, damage occurs despite all efforts to avoid it.

IT IS ESSENTIAL TO PROVE THE NECESSITY AS DEFENCE: –

I. The damage caused was less than the harm that would have occurred
otherwise.
II. The person reasonably believed that his actions were necessary to
prevent imminent harm.
III. There was no practical alternative available for avoiding the harm.
IV. The person did not cause the threat of harm in the first place.

In the case of Cope vs. Sharpe, the defendant entered the plaintiff’s land
to prevent the spread of fire to the adjoining land and prevent the damage
which could have been caused. The plaintiff, in this case, sued the
defendant for trespass but since the defendant’s act was reasonably
necessary to save the property and from real and imminent danger, the court
held that the defendant was not liable for trespass as he has committed an
act of necessity.

In the case of Leigh v. Gladstone, Leigh was imprisoned and went on a

hunger strike and was later fed by the prison warden. The warden was
accused of trespassing against a person and took the defense of act of
necessity and succeeded.
7. PRIVATE DEFENCE: -
Meaning of Private defense under Law of Torts: – Private defense is a right
available to every citizen of India to protect themselves from any external
force that can result into any harm or injury. The law has permitted the
protection of one’s life and property and for that, it has permitted the use
of reasonable force to protect himself and his property. The right can be
extended by an accused in some circumstances but only to a certain degree,
which would not invalidate the right of private defense.
The right to private defense is the right to protect your life and property,
as well as the life and property of others. A tortious act done in exercise of
self-defense shall not be punished.
There are three essential elements that should be present to avail this
defense-
1. The threat should be imminent.
2. Force should be used only to protect life or property.
3. Force used should be proportional to the threat.
For example,
I. A would not be justified in using force against B just because he
believes that someday he will be attacked by B.
II. If A tried to commit a robbery in the house of B and B just drew his
sword and chopped his head, then this act of A would not be
justified, and the defense of private defense cannot be pleaded.
III. Fixing broken glass pieces on a wall, keeping a fierce dog, etc. is all
justified in the eyes of law.
In Ramanuja Mudali v. M. Gangan, a landowner i.e., the defendant had
laid a network of live wires on his land. The plaintiff, in order to reach his
own land tried to cross his land at 10 p.m. He received a shock and
sustained some serious injuries due to the live wire and there was no notice
regarding it. The defendant was held liable in this case and the use of live
wires is not justified in the case.
In Bird v. Holbrook, the defendant fixed up spring guns in his garden
without displaying any notice regarding the same and the plaintiff who was
a trespasser suffered injuries due to its automatic discharge. The court held
that this act of the defendant is not justified, and the plaintiff is entitled to
get compensation for the injuries suffered by him.
8. MISTAKE
Meaning of Mistake under Law of Torts: –
In general, Mistake, whether of fact or of law, is no defense to the action
of tort. When any person willfully interferes with the rights of others, he
has no defense that he believes that his actions were justified. Likewise, no
one under a mistake of fact defames someone or enters anyone’s property.
When a defendant acts under wrongful belief in some or the other situation,
he can plead a defense of fault.

The mistake is of two types:

I. Mistake of law
II. Mistake of fact
In both conditions, no defense is available to the defendant.
I. Mistake of law: - No defense in any civil or criminal case. When a
person commits any tort and asks for the defense that he does not
know the law, that does is considered as a defense. The court thinks
that every person knows the law of the country that’s why the mistake
of law is not considered as a defense in IPC as well as in tort. The
mistake of law is not considered as a defense. When a person commits
any tort and asks for a defense that he does not know the law, the court
does not consider it as a defense.
For example, ‘A’ murdered ‘B’, in this case, ‘A’ cannot apply for the
defense of mistake of law i.e., he was not aware of crime/law related to the
murder.
II. Mistake of fact: - A mistake of fact as a defense applies to various
crimes. If the criminal defendant can prove that he does the act due to
a mistake of fact or misunderstood some fact that negates an element
of the crime.
For example, ‘A’ takes his dog to the park every day so that he can play off
leash with other dogs. One day, ‘A’ lost sight of his dog for a few minutes.
Well, he relocated the dog and walked towards the home. At home, he
noticed a mark on the dog and concluded that it was not his dog, he
mistakenly took another person’s dog with him. Here, ‘A’ will not be liable
because he gets the defense of mistake of facts.
In general, Mistake, whether of fact or of law, is no defence to the action of
tort. When any person willfully interferes with the rights of others, he has
no defence that he believed that his actions were justified. Likewise, no one
under a mistake of fact defames someone or enters anyone’s property. If it
is repeatedly told to an individual that it is not his property, he could not
take it. It would no longer be a reasonable defence for him.
Defence of mistake of fact can be excusable but the defence of mistake
of law is not excusable. It is assumed that every person knows the law of
the country he resides in. If a person says, “I do not know the law and does
the act, it is not excusable. For example, ‘A’ is 17 years old and went to buy
wine from the wine shop. ‘B’, the owner of the shop honestly believed that
‘A’ was above 18 years of age and as per law 18+ person can legally have
wine. ‘C’, a policeman caught ‘B’ for illegally selling wine to a child. Here
‘B’ can take advantage of the mistake of fact because he honestly believes
‘A’ to be 18+.
When a defendant acts under a mistaken belief in some situations then he
may use the defence of mistake to avoid his liability under the law of torts.

9. STATUTORY AUTHORITY

Meaning of Statutory Authority under Law of Torts: – Statutory

authority means authority which has been derived directly from the
legislature, and any person working under the statutory authority has
caused harm to the other person then that will not come under any wrong
and no action can be taken on that.

If an act is authorized by an act or statute, it is not actionable, even if it

would otherwise constitute a tort. It is a complete defence, and the injured
party has no remedy except for claiming compensation as may have been
provided by the statute. Immunity under the statutory right is given not only
for apparent harm but also for accidental damage.
Even if under normal circumstances that act would have amounted to tort,
but if there is statutory authority that act would be not considered under
tort. Although for that act if there is provision for compensation that can be
provided to the person, otherwise not. This statutory authority gives the
power to the state and its authority to do act for the welfare and while doing
if some harm is caused to any person, then also, they will be immune from
that act.

The authority given by a statute can be of two types: –

• Absolute Authority: – In this, there is no liability if the nuisance or

some other harm necessarily results.

• Conditional Authority: – It means that the same is possible without

nuisance or any other harm.

In the case of Metropolitan Asylum District vs. Hil the hospital
authorities i.e. the appellants were granted permission to set up a smallpox
hospital. But the hospital was created in a residential area which was not
safe for the residents as the disease can spread to that area. Considering it a
nuisance an injunction was issued against the hospital. The authority, in this
case, was conditional.

In Hammer Smith Rail Co. v. Brand, the value of the property of the
plaintiff depreciated due to the loud noise and vibrations produced from the
running trains on the railway line which was constructed under a statutory
provision. The court held that nothing can be claimed for the damage
suffered as it was done as per the statutory provisions and if something is
authorized by any statute or legislature then it serves as a complete defence.
The defendant was held not liable in the case.

SUB-MODULE 1.3

CAPACITY
The term "Tort" refers to a wrongdoing that someone commits or fails to
commit those results in harm to another person. The victim then files a
lawsuit in civil court seeking compensation in the form of unliquidated
damages, an injunction, the return of lost property, or any other available
relief. Unliquidated damages refer to the sum of damages that must be
established or decided by the court. A person who has committed or is
accountable for a tort is called a "tortfeasor".

CAPACITY TO SUE AND BE SUED IN TORTS

Capacity refers to status of a person to sue or to be sued under violation of

a law. These laws can either be codified or uncodified. In case of Torts, the
capacity to sue or to be sued lies with all persons or parties. But this
statement is not absolute, there are always reasonable restrictions alongside
any liberty, similarly there are restrictions upon parties to sue or be sued.
Indian law follows the English law of tort in the matters of disability of
parties to sue or to be sued.

A party to tort refers to any person who is directly involved or shows

interest in any act that leads to either:

1. Commission of a civil wrong

2. Being victim of such wrong

Such person shall become a party to tort and shall be referred as plaintiffs
and defendants.

In the past, the only individual who could file a lawsuit seeking judicial
redress was someone who had specifically been harmed legally as a result
of real or threatened infringement of a right or interest that was protected
by the law. This norm, nevertheless, is very old and came into existence
when private law predominated the legal system and public law had not yet
been created.

Everybody has a right to sue and is subject to being sued, according to the
basic rule of tort law. However, this rule is not ironclad. There are
exceptions to this basic norm due to individual disability depending on
specific laws and situations. There are some people who cannot bring or
receive a tort claim.

WHO CAN SUE AND WHO CANNOT SUE?

The below points provide us with a clear understanding of as to who can
sue and who cannot sue in tort:
1. Corporation
Due to the nature of corporations, it is obvious that they cannot suffer
human injuries. However, corporations may bring claims for torts that cause
damage to their property. A corporation is a legal/juridical person.
Therefore, it can sue another person. It may bring action for those civil
wrongs which affect its property, but a corporation cannot sue for those
wrongs which do not affect its property. Private corporations can sue and
get sued for torts.

i. Suits by Corporation
A corporation can bring suits for civil wrongs which affect its existence. It
can sue for torts against itself. It can sue for malicious prosecution of a
winding up petition and even for libel that charges it with insolvency or
dishonest and incompetent management. Further, it can sue for defamation
where words cause injury to its reputation in relation to its trade or business.

However, it cannot sue for torts like assault, battery, false imprisonment
etc. because these are wrongs against a person.

ii. Suits against Corporation

Earlier it was held that a corporation has no mind and thus cannot be sued
for torts involving fraud or motive. This difficulty was solved by ‘alter ego
doctrine’. A corporation is liable for torts committed by its agents or
servants while doing an act which is within the scope of the corporation.
However, its liability can either be ultra vires or intra vires. Thus, it may be
liable for torts like libel, trespass, conversion, negligence etc.

The prerequisite is:

I. The tort must not be impossible in some way.
II. If the company can demonstrate that defamation has the potential to
result in actual damages, it may file a lawsuit against the other party.
III. A corporation may file a lawsuit for libel or any other tort that
negatively impacts its assets or operations.
In the case of Mayor of Manchester v. Williams, the plaintiff
corporation's lawsuit for damages regarding a statement alleging corrupt
activities in the management of municipal affairs was dismissed since it
was determined that the statement did not harm the corporation. It was held
that a corporation has a right to sue, not only for the property but also for
its personal reputation.

In Poulton vs. London and S.W. Rly. Company, 1867.

The railway master was employed by the defendant company, arrested a
man for not paying the freight charges of the horse he is carrying with him.
The petitioner filed a case against the corporation. It was held that the
railway master was employed to arrest the person only if the person did not
pay the freight of himself. No order was given to him to arrest a person if
he is not paying the freight charges for the goods carried by him. Here, he
is acting in his private capacity so a corporation cannot be held liable, only
the station master can be held liable.
2. Minor
In India a person of 18 years or above becomes major, but, if a guardian is
appointed before that age or a property is taken under superintendence by
the court then the age of majority is raised to 21.
There is no minimum age for the existence of tortuous liability. A minor
can be very well sued like an adult, if the action committed by him is in
contrast with the reasonable action expected from the child of that age in a
particular situation.
The infant/ minor can be sued for the act committed by them as an adult.
Thus, a minor can be sued for assault, false imprisonment, libel, slander,
fraud etc. but where intention, knowledge or some other conditions of mind
are essential ingredients of liability then in that cases minor/ infant can be
exempted due to their mental incapacity. In the latter case a minor/infant
cannot be sued.

A minor must sue by his ‘litigation friend’ or the ‘next friend’ (usually
father) for any wrong done to him. Apart from this, a minor is in no way
different from an adult. A minor may even sue his parent for negligence. In
an American case a father was held liable for running his business vehicle
over his son while the plaintiff was playing in the field.

In Walmsey vs. Humonick, 1954 in this case two little boys were playing
cowboy related games. One boy hit the arrow and it hit another boy in his
eye. The court gives the judgment in defendant’s Favor as a five-year child
doesn’t even think about it. Hence the defendant is not liable.

Sections 82 and 83 of the Indian Penal Code of 1860 prohibit age-based

distinctions in tort cases. Therefore, a seven-year-old child might be sued
for trespass in the same way as an adult.
However, until sufficient maturity for committing that tort can be shown in
this specific case, a child cannot be held liable for a tort that requires a
distinguishing mental element, such as dishonesty or malicious
prosecution.
3. Act of State: -
The State is a legal person and can sue and be sued. It is vicariously liable
for the tortious acts of its servants done during their employment. The
injured party may sue the State and recover compensation. They cannot be
held liable for misfeasance of their officers if they are exercising their
duties. Therefore, the blunders of judicial officers cannot be charged from
state’s accounts, even if they commit a mistake while exercising their
powers.
Historical sketch: In England, at common law the rule was that "the king
can do no wrong" and the king or his servants could not be sued. However,
the Crown Proceedings Act has fixed liability & hence the state may sue
and be sued. Before the Constitution, the Secretary of State was liable for
tortious acts. (Govt. of India Act 1935).
In India, the constitution of India in Art. 300, lays down that the state may
sue and be sued.
Leading cases:
I. Basava V. St. of Mysore (1977): - In a case of theft, property worth
Rs 10,000/- was recovered and kept in police custody. This was stolen
from custody. The Supreme Court held that payment should be made
to the owner who had claimed the property.
II. Rup Ram V. State of Punjab: - P, a motor cyclist was seriously injured
when the driver of a P. W. D. truck dased against him. It was held that
the Govt. was liable. The Govt's argument that at the time of the
accident, the driver was carrying materials for the construction of a
bridge and that this was a Sovereign function and hence, the State was
not liable, was rejected by the court.