LAW OF TORTS

Introduction

Law is any rule of human conduct accepted by society and enforced by the state
for the betterment of human life. In a wider sense, it includes any rule of human
action for example, religious, social, political, and moral rules of conduct.
However, only those rules of conduct of persons protected and enforced by the
state constitute the law of the land in its strict sense. According to Salmond, the
law consists of rules recognized and acted on by courts of justice. The entire
body of law in a state (corpus juris) may be divided into two, viz, civil and
criminal1.

Definition of tort

The word springs from the Latin word “tortum” which suggests “to twist”. As
per the law dictionary tort means “civil wrong”. The person who perpetrates tort
is called a “tort-feaser”.

The claimant has to suffer loss or harm due to the tortious act of tort-feaser, for
his tortious act unliquidated damages are the only remedy2.

 Some of the Definitions of torts are:

AS PER SALMOND

“A tort is a civil wrong for which the remedy is an action for damages” and
which isn’t exclusively the breach of contract or the breach of trust or reach of
merely equitable obligation”3.

AS PER WINFIELD,

1
legal service/articles/torts_s.htm
2
legalsarcasm.com/legal-notes/definition-and-nature-of-tort
3
Ibid
“Tortious liability arises from the breach of an obligation primarily fixed by the
law, this obligation is towards the persons generally and its breach is repressible
by an action for unliquidated damages”4.

AS PER CLARK AND LINDSELL,

“Tort might be a wrong autonomous of contract that the acceptable remedy

might be a standard law action.”

By examination of numerous definitions, the ingredients of torts are:

 It is a civil wrong.
 Such civil wrong which is other than a breach of contract and breach of
trust.
 Remedy for tort is unliquidated damages.

TORT IS A CIVIL WRONG

It relates to the class of civil wrongs.

In the case of a civil wrong, the aggrieved party initiates proceedings against the
tort feaser for the remedy is Unliquidated damages.

The aggrieved party is compensated by the Tort feaser for the apprehension
caused to him5.

Objectives of a tort

 To determine rights between the parties to a dispute.

 To prevent the continuation or repetition of harm i.e. by giving orders of
the injunction.
 To protect certain rights of every individual recognized by law i.e. a
person’s reputation.

4
Ibid
5
Ibid
  To restore one’s property to its rightful owner i.e. where the property is
wrongfully taken away from its rightful owner6.

NATURE OF TORTS

The nature of tort can be understood by distinguishing it from crime and

contractual civil liabilities. It can be said that tort is the residual of wrongful
acts that are not a crime and that do not fall under contractual liabilities. Thus, if
a wrongful act is neither crime nor a violation of a contract, it may fall under
tort. The damages are unliquidated and are decided only by the common sense
of the courts. The following differences between Tort and Crime and Tort and
Breach of Contract, show the true nature of Tort7.

Essential Elements of Torts

A wrongful act or omission

The first essential ingredient in constituting a tort is that a person must have
committed a wrongful act or omission that is, he must have done some act that
he was not expected to do, or, he must have omitted to do something which he
was supposed to do. There must have been. Breach of duty which has been
fixed by the law itself. If a person does not observe that duty like a reasonable
and prudent person or breaks it intentionally, he is deemed to have committed a
wrongful act. In order to make a person liable for a tort he must have done some
legal wrong that is, violates the legal right of another person, for example,
violation of the right to property, right of bodily safety, right of good reputation.
A wrongful act may be positive act or an omission which can be committed by a
person either negligently or intentionally or even by committing a breach of
strict duty, for example, driving a vehicle at an excessive speed. The wrongful
act or a wrongful omission must be one recognized by law. If there is a mere
moral or social wrong, there cannot be a liability for the same. For example, if
6
Ibid
7
Law notes by academic
somebody fails to help a starving man or save a drowning child. But, where
legal duty to perform is involved and the same is not performed it would
amount to a wrongful act. In Municipal Corporation of Delhi v.Subhagwati,
where the Municipal Corporation, having control of a clock tower in the heart of
the city does not keep it in proper repairs and the falling of the same results in
the death of a number of persons, the Corporation would be liable for its
omission to take care. Similarly, failure to provide a safe system would also
amount to omission, held in General Cleaning Corporation Limited v.
Christmas8.

MENTAL ELEMENTS IN LAW OF TORTS

MALICE

Malice is a term with many meanings. Firstly, it is often used to mean

spitefully or with ill-will. Like other motives, malice in this sense is invariably
irrelevant in Law of Torts, and therefore, is not essential to the maintenance of
an action for tort.

Bradford Corporation v. Pickles, Mr. Pickles was annoyed at the Bradford

Corporation’s refusal to purchase some land from him at the inflated price he
demanded. In order to force their hand, he sank a shaft on his land, which
interfered with water percolating from higher land belonging to the Corporation.
The Corporation unsuccessfully sought an injunction to restrain him from
polluting and diminishing their water. The House of Lords rejected the claim,
Lord McNaughton remarking that “It is the act, not the motive for the act that
must be regarded. If the act, apart from motive, gives rise merely to damage
without legal injury, the motive, however reprehensible it may be, will not
supply that element.” In this first sense, malice is occasionally relevant as a
necessary element required to establish the defendant's liability, e.g. to rebut the
defence of qualified privilege in libel or slander. Malice has a second meaning.
8
Law-of-Torts-notes-pdf
In this legal sense, malice means the intentional commission of an act with any
improper motive. This is much wider than the layman's use of the word malice.
Malice is usually used in this sense in the few contexts in which it is relevant in
tort. For example, in the tort of malicious prosecution, malice is constituted by
any motive other than that of simply instituting a prosecution for the purpose of
bringing a person to justice. Sometimes malice is used in it archaic sense to
mean simply an intentional performance of a tortuous act. It is in this sense that
pleaders in libel and slander actions traditionally allege that the defendant
“falsely and maliciously…” In fact, this means merely that the defendant’s
publication of the defamatory matter was either intentional or negligent. Malice
in this sense would appear to be a confusing and unhelpful use of the word, and
hence, should be avoided.

Malice in Fact and Malice in Law

It is of two kinds, ‘malice in fact’ (or express malice or actual malice) and
‘malice in law’ (or implied malice). The first is what is called malice in
common acceptation, and means ill-will against a person. The second means a
wrongful act done intentionally without just cause or excuse where a man has a
right to do an act; it is not possible to make his exercise of such right actionable
by alleging or proving that his motive in the exercise was spite or malice in the
popular sense. An act not otherwise unlawful cannot generally be made
actionable by an averment that it was done with evil motive. A malicious
motive per se does not amount to an injuria or legal wrong9.

INTENTION

Where a person can foresee the natural consequences of his own act and also
desires those natural consequences, he is said to have committed that act
intentionally. For example, a shoots at B knowing full well that by doing so he

9
Ibid(8)
may injure or even kill B, and with a desire that B should be injured or killed.
Here A has intentionally shot at B. If the defendant must has acted consciously
and of his own free will and has intended some injury to the plaintiff’s interest,
the he is said to have committed a wrong intentionally.

1. Conduct is not intentional where it results from unconscious or involuntary

movement.

2. Nor is it intentional for the purpose of Law of Torts where although the
defendant has acted of his own free will, yet he intended no harm to the
plaintiff.

Two points need to be noted, however, which diminish the importance of this
rule.

1. In law a man’s intention are adjudged by objective standards.

2. A man is taken to intend to harm the plaintiff when the consequence which he
intends would constitute an injury to a legally protected interest of the plaintiff,
regardless of whether he realizes that such a consequence would constitute such
injury or not.

NEGLIGENCE

In case of negligence, there is neither foresight nor desire of the consequences

of one’s own natural acts. However, there is failure to take adequate care as
demanded by the circumstances in which the act is done. Negligence is the
breach of a duty caused by the omission to do something which a reasonable
man, guided upon those considerations which ordinarily regulate the conduct of
human affairs, would do, or by doing something which a prudent and reasonable
man would not do, whereby damage has resulted to a person.

The word “negligence” is used in two senses. 1. It is the name of a tort, so that
the plaintiff can sue in negligence where an interest of his which the law
protects by that tort is injured. 2. Negligence is itself sometimes an ingredient of
other torts. It is therefore both a tort and a concept of the law of torts. Here we
look at negligence as a concept. Negligence is a type of behavior. It is
distinguishable from other behavior by the notional mental attitude of the
defendant. Negligence exists where the defendant did not intend to injure the
plaintiff, and yet he disregarded or did not fulfill a duty imposed upon him by
the law. It is akin to carelessness, but is a vastly more complicated concept. As
observed by Lord Wright, “In strict legal analysis negligence means more than
needless or careless conduct, whether in omission or commission: it properly
connotes the complex concept of duty, breach and damage thereby suffered to
the person to whom the duty was owing.”

Justification of torts

Volenti Non fit Injuria(Consent or Leave and Licence)

The maxim is based on the principle of common sense. If I invite you to my

house, can I sue you for trespass? Answer is no, because I have consented to
your entry upon my land. But if a guest who is to be entertained in the drawing
room enters into my bedroom without my permission, he can be sued for
trespass, because his entry into the bedroom is unauthorised. A postman
entering into the house for delivering a letter cannot be sued if he remains
within a permissible limit, because in such a case the consent is inferred but if
the postman crosses that permissible limit he can be sued.

The consent may be either - (1) express, or (2) implied.

In Dr. Laxman Balkrishan v Trimbak Bapu, the Supreme Court held that if a
doctor does not apply due care during the operation, he will be liable even after
the patients' consent for suffering loss during operation. In the case the patient
died because proper primary care was not taken while giving anesthesia.
Essential Conditions of Doctrine of Volenti Non fit Injuria

For the application of the maxim the following conditions should be fulfilled,

Consent must be freely given, It is necessary for the application of this maxim
that the consent must be freely given. The consent is not free, if it has been
obtained by undue influence, coercion, fraud, misrepresentation, mistake or the
like elements which adversely affects a free consent.

In White v Blackmore, the plaintiffs husband paid for admission of his family
for

witnessing a car race. During the race a car got entangled in the safety rope and
the plaintiff was catapulted some twenty feet and died consequently. It was held
that since the deceased did not have full knowledge of the risk he was running
from the faulty lay out of the ropes, he did not willingly accept the risk.

ACT OF GOD

Act of God may be defined as “circumstances which no human foresight can

provide against any of which human prudence is not bound to recognize the
possibility, and which when they do occur, therefore, are calamities that do not
involve the obligation of paying for the consequences that result from
them”.Ex:- The falling of a tree, a flash of lightening, a tornado, storms,
tempests, tides, volcanic eruptions, or a flood.

Essential conditions for the availability of this defence are:

Externality: There must be working of natural forces without any intervention

from human agency, and Unpredictability: The occurrence must be
extraordinary and not one which could be anticipated and reasonably guarded
against.

Irresistibility: The occurrence must be such that it could not have been
avoided by any amount of precaution. Whether a particular event amounts to an
Act of God is question of fact. Today the scope of this defence is very limited
because with the increase in knowledge the foresight also increases and it is
expected that the possibility of the event could have been visualized. Whether a
particular circumstance or occurrence amounts to an act of God is a question of
fact in each case and the criterion for deciding it "is no human foresight and
prudence could reasonably recognize the possibility of such an event." There is
a tendency on the part of courts to limit the application of the defense of an act
of God not because of the fact that its application in the cases of absolute
liability is diminished but because advancement in the scientific knowledge
limits the unpredictable.

In Ramalinga Nadar v. Narayana Reddiar, the Kerala High Court held that the

criminal activities of the unruly mob cannot be considered to be an Act of God.

In Saraswati Parabhai v. Grid Corporation of Orissa and Others, where an

electric pole was uprooted and fell down with live wire which caused death of a

person. Orissa High Court rejecting the defence of Act of God held that it was
the

responsibility of the Grid Corporation authorities to provide protection in such

situation of storm and rain.

Inevitable Accident

All recent authorities support the view that 'inevitable accident’ “negatives
liability.

An 'inevitable accident' is that which could not possibly be prevented by the

exercise of ordinary care, caution and skill. It means an accident physically
unavoidable. It does not apply to anything which either party might have
avoided. It is an accident such as the defendant could not have avoided by use
of the kind and degree of care nece'ssary to the exigency, and the circumstances,
in which he was placed. If in the performance of a lawful act, done with all due
care, damage ensues through some unavoidable reason, such damage affords no
cause of action. "People must guard against reasonable probabilities, but they
are not bound to guard against fantastic possibilities.

In A. Krishna Patra v. Orissa State Electricity Board, the Court explained the
inevitable act and held that an inevitable accident is an event that happens not
only without the concurrence of the will of the man but in spite of all effects on
his part to prevent it.

Limitations of this defense, in trespass as well as in negligence, inevitable

accident has no place. Similarly, under the rule in Ryland v. Fletcher, the
defendant is liable even if he has taken reasonable care. In the same way the
defense has no role in cases of absolute liability.

Leading case on this point is Brown v. Kendall. A dog owned by the plaintiff
was

fighting with a dog owned by the defendant. The plaintiff stood behind the
defendant without his knowledge while the defendant was trying to separate the
dogs with a stick. The stick struck the plaintiff in his eye and caused injury. It
was held that the defendant was not liable as he had exercised reasonable care.

Private Defense

Private defense is another ground of immunity well known to the law. No action
is maintainable for damage done in the exercise of one's right of private defence
of person or property provided that the force employed for the purpose is not
out of proportion to the harm apprehended. And what may be lawfully done for
oneself in this regard may likewise be done for a wife or husband, a parent or
child, a master or servant. But the force employed must not be out of proportion
to the apparent urgency of the occasion. Thus it is not justifiable to use a deadly
weapon to repel a push or blow with the hand. "Honest and reasonable belief of
immediate danger" is the test.

Discharge of torts

The right to sue for torts, is discharged by:

1. Death of one of the parties.

2. Waiver: When there are two or more remedies available for torts, the plaintiff
may waive one and select the other. He

cannot pursue both or take one after the other. If A is deprived of his

goods by B, A may sue for tort of conversion, in the alternative he may sue for
the price of the goods. He may elect one or the other.

3. Accord and satisfaction: Accord is agreement and satisfaction is

consideration or money payment. Such an agreement discharges of tort.

4. Release: This is the giving up of the right of action in tort. But, it should not
be in ignorance of the rights or by mistake.

5. Acquiescence: This is acceptance and results in discharge of tort.

6. Limitation: Suits barred by Limitation, are automatically discharged. In India,

the period of limitation is one year for Libel, false imprisonment, malicious
prosecution etc.,

VICARIOUS LIABILITY

As a general rule, a man is liable only for his own act but there are certain
circumstances in which a person is liable for the wrong committed by others.
This is called "vicarious liability", that is, liability incurred for another. The
most common instance is the liability of the master for the wrong committed by
his servants. In these cases liability is joint as well as several. The plaintiff can
sue the actual wrong doer himself, be he a servant or agent, as well as his
principal. In the words of Salmond, "In general a person is responsible only for
his own acts, but there are exceptional cases in which the law imposes on him
vicarious responsibility for the acts of another, however, blameless himself."

The doctrine of vicarious liability is based on principles which can be summed

up in the following two maxims,

a) Qui facit per alium facit per se, The maxim means, 'he who acts through
another is deemed in law as doing it himself. The master's responsibility for the
servant's act had also its origin in this principle. The reasoning is that a person
who puts another in his place to do a class of acts in his absence, necessarily
leaves to determine, according to the circumstances that arise, when an act of
that class is to be done and trust him for the manner in which it is done,
consequently he is answerable for the wrong of the person so entrusted either in
the manner of doing such an act, or in doing such an act under circumstances in
which it ought not to have been done, provided what is done is not done from
any caprice of the servant but in the course of the employment.

b) Respondent superior, This maxim means that, the superior must be

responsible or let the principal be liable. In such cases not only he who obeys
but also he who command becomes equally liable This rule has its origin in the
legal presumption that all acts done by the servant in and about his master's
business are done by his master's express or implied authority and are, in truth,
the act of the master. It puts the master in the same position as if he had done
the act himself. The master is answerable for every such wrong of the servant as
is committed in the course of his service, though no express command or private
is proved. Similarly, a principal and agent are jointly and severally liable as
joint wrongdoers for any tort authorized by the former and committed by the
latter.
Remedies

The various remedies available for Torts are:

1) Damages.

2) Injunctions

3) Restitution of Property

4) Extra Judicial Remedies.

These may be discussed with some details.

In Tort, damages refer to the pecuniary (Money) Compensation that is

determined by the court (Unliquidated Damages). The defendant is liable for the
damage caused to the plaintiff if the damage is the direct consequence of the act
of the defendant.

Scott V. Shepherd: Wagon Mound case etc., Kinds of damages: There are four
kinds of damages:

1) Nominal (2) Substantial (3) Exemplary and (4) Contemptuous.

1) Normal damages are awarded in circumstances where only a right is

established (e.g. Assault). This may not even meet the expense incurred for
suing.

2) Substantial damages are awarded to fairly compensate the plaintiff for his
injury and suffering. The court considering the nature of the case, awards
compensation which is fair and reasonable.

3) Exemplary damages: Where it is not possible in calculate the compensation

in terms of money. The court may take into account the conduct, motive and
other circumstances and award aggravated (high) damages. This is exemplary.
The objective is to make the wrongdoer an example, and to deter and punish
such persons. The amount awarded is much more than loss suffered.
Huckle V. Money: D, a Government servant entered the house of P under a
nameless search warrant and made the search. P sued

D. Held: D liable. As entering without proper authority amounted to an attack

on the liberty of P, the court awarded exemplary damages.

In Merzett V. William : The bank D, had without reason, refused to honour a

cheque. P the drawer sued D. Held: D liable to pay exemplary damages.

4) Contemptuous Damages: In "Contemptuous damages", the court finds that

the plaintiff should not have brought an action, as the matter was so "Trifling".
The court forms a low opinion of the plaintiff, but, to protect his right, it awards
one rupee or some small amount. This is called contemptuous damages. Cases
of trespass on land, trespass to person are examples.The rule is "De minimis non
curet lex". (Law does not take cognisance of trifles).