Clrapt~r J

GENERAL CONDITIONS OF LIABILITY IN TORT

ce rta n con diti 0118 wh ich mu st e,is t bef ore a per son LS held
TIH~I'\? an? i
liable' m tor t. Aft exa m . .
er me nts which have
ng van ous d efin1ho ru the ele .LS
com e bef ore us are ,tn ftnt act the d .tho
·
. ns on which tor twu s liab1 11ty
. con
, f e te mu n'-~ . The con d 1'ti
..J
mg ·-
1 W gfu ons or ele me nts are follow
. ron I Act .
2
· Legal Da ma ge.
3. Legal Remed y.

To det enn ine liabilit . 1. Wr

ong ful Act.
the act don e by the
def end ant wa s Y tn tort it mus t be pro ved tha t is don e
any law afu ~~n ~£: ul ~ct . The wro ngf ul act is an act w hic h
wit hou t es wro n_g ful
st The act of the def end ant bec om
act onl y wh en the re ~u ~fica~o n.of legal right of ano the r. If the act com pla me d
of d . is violation tort. Violation
oes ,no t ~JO late leg al ngh t of ,mo the r person s, it is not a f
f and r r . d und er the cat ego ry 0
o mo ra , soo al e igious uties doe s not com e
tor ts 11 . hav e bee n
· ed ,ubs , m tor t, th e pla inti ff has to pro ve that h.is legal rig hts
.
1
v 10 at y the act of the def end ant . do an
tiou s !iab ilit y thu s aris es by bo th- an act or an adm iss ion to
Tor the r's legal
is pro hib ite d-o r by vio lati ng ano
d_ct e.g., by d?m g _an act wh ich ano the r is
or by vio l_atm g one 's ow n dut ies . Thu s wh ere legal rig hts of
n_ght In bot h the
legal dut y by the wro ngd oer s.
v_i ola t~ th~ re is, violation of
tort.
s1t uah ons his act con stit ute s a rig hts .
s' ma y be div ide d into two kin ds- Pu bli c rig hts and Pri vat e
. 'Ri ~ht of the Sta te in
wh ich bel ong to the me mb ers
Pub lic ngh ts are tho se rig hts tak e
ery per son of the pub lic has a rig ht to wa lk on the roa d , to
gen era l. Ev no act ion in
ter fro m a riv er, and so on. Wh en a pub lic rig ht is vio late d l
wa
suffers a spe cia l and s • '...,sta ntia
1

tak en unl ess the pla inti ff

tor t sha ll be r .v the pub lic
ma ge' in add itio n to the dam age suffered by him in com mo
'da d by wh ich the
s a bam boo across a pub lic rod
in gen era l. For ins tan ce- A fixe a tum
d is blo cke d. An y per son wh o pas ses tha t wa y has to tak e
wh ole roa But if B wh ile
go. In this cas e no ind ivid ual can file a sui t aga ins t A.
and d
roa d in a dar k nig ht stri kes aga ins t the bam boo and is inj ure
wa lki ng on the itio n to
A for dam age s as he has suf fer ed spe cia l dam age in add
he can sue
the pub lic in gen era l.
the inc onv eni enc e suf fer ed by
2. Legal Damage.
t the re is
the def end ant 's wro ngf ul act . Bu
Da ma ge is the dir ect res ult of har m
n bet we en 'da ma ge' and 'da ma ges '. 'Da ma ge' me ans the
a dis tin ctio , wh ile
a per son by the wro ngf ul act of the def end ant 's act
do ne to

( 13 )
 Id LAW OF TORTS

cxm,pcm:-n tio n which is g iven to the plaintiff is known as 'damage ,

Tiw main ol>jcct o( the law of torts is to protect from harm b _s ·
to till' propl•rty, body, nnd prestige of a person. In law of torts, th;;'g cau~ed
fo r d.un.,gC's lies fo r infringem ent of individua l's legal tights. an action
Out ,t 1s no t every damage that is the damages in the eyes Of 1
a;"· In
, 11 , ,1cl1 o n Ill to rt, the plaintiff has lo prove that he has suffered s ome 1egal
' f 1
d,,m.t~ •' (rorn the d e fe n d ants wrong u act. There may be a wron
to ,, 1-x-rsoll but if actual legaJ damage is not caused to him no actio; _caUSed
· ma· ble. 'Lega I d amage ' 1s · 1 to 'actional dm torts,
· ne1"ther 1"d enhca
will b<.> rn.rn,ta
nor it IS necessaril y 'pecuniary '. Where there is no violation legal righ-;mare
person, no action in t~rt ,~ill lie even if l~e suffers _any amount of P ~ a a
loss. But in case of v1olahon of a persons legal nght an action will lie ~
whether he suffers any pecuniary loss or not. In other words, there may b
violation ~f le?al right with?ut legal damage b~t there cannot be a damag:
without v1olahon of legal nght. The real mearung of legal damage can be
illustrated by two maxims :
(a) Damnum Sine lnjuria
(b) lnjuria Sine Damnum

(a) Damnum Sine Injuria.

' Damnum ' means damage in the form of money, comfort and health.
' /n juria' means violation of legal rights and 'sine' means without. Thus it
means hann which is caused without violation of legal right. Harm caused
without violation of legal rights, howsoeve r, great is not actionabl e in the law
of torts.
Mere loss of money or property does not cause any 'damage' . There are
many acts which though harmful are not wrongful and give no right of action
to him who suffers their effects. Damage so suffered is called damage sine
in1urw-d amage without injury. In other words damnum injuria is not
actionabl e. In law of tort, wrongful acts are those by which legal rights of
the plaintiff is violated. If some harm is caused to others by the exercise of
legal rights of a person then no action will lie against him. For example, if
I am running a mill at a particular place and any neighbou r also establish
another mill in the same place which reduces my income then I cannot file
a case for compensa tion against him although it causes monetary harm to
him. But if he obstructs the flow of water to my mill then I will have right
to take action against him as it violates my legal right.
Every person has a right to carry on his trade or professio n in
competit ion with others even though this competiti on may cause loss to his
rival.
Accordin g to tbs maxim 'damage' is not the basis of action unless such
damage is the result of violation of a legal rights of plaintiff. Sir Federic
Pollock has observed as follows-
Men do many such acts which causes some inconven ience or harm
to othe rs or which is likely to cause harm or inconven ience, but without
do~g such acts it is no_t possible to carry on his ordinary activities in
society, hence no complain t can be made for such harm or inconven ience .
I GENER AL CONDIT IONS OF LIABILITY IN TORT
lnstan ces.-I nve;fouce 1
a sd,ool at a place. The : .~r Gra 111111er School case' the plaintiff was runnin'?f
15

g
st
the plr1intiff. As a result 0 ; ~n_dant arted anothe r school near the school
his
sd1ool and joined defend t' 5lts most of th~ studen ts of the plaintiff left
to reduce their fees from ~~ school. Due to competition the plaintif fs had
thus he suffered huge m pence to 12 pence per studen t per quarte r and
t the
defond ant in the court ( onetar y loss. The plaintiff filed a suit agains ff was
not entitle d to cany compe or compensation . It was held that the plainti
nsation · . Every person has a right to carry on h.ts
trade or profes sion in
business compe tition }1~om_petitions withl others and if as a result of a health y
h
rival suffe rs a oss t en he 1s. not enht · le d to recover
,1ny compe nsatio n H 1s the
plainti ff's school l · d ere t~e plaintiff by setting up his school near can
lie c1gainst him. la exercised his legal right and, therefo re, no action

In Chesmore v. Richard 2 . •
usmg the water f s, plamti ff was the owner of a mill. He had been
st dug a
weU on their 1 ~om a ream for about sixty years. The defend ants . water
f th t an , as a result of this plainti ff's mill stoppe d getting
the loss
rom d.;0 \~am . It was held tha·t the defend ants were not liable for
caush~ e plainti ff becaus e the defend ants had legal right to dig a well
on 1s own land.
~ A~ton. v. Blnnde/13 the defend ants had dug a coalm ines on his land as
a
an
~es:. t o this the water going to the well of the
IS well becam e dry. It was held that the defend
plainti ff was
ants were not
interru pted
liable as
they were exerci sing their legal right on their land.
rs
In _Moghal S teanzship Co. V. Mcgregor Gow and Co. 4 the defen dants -owne
of drivin g the
of ~ez:am steamsh ip-est ablish ed an associ ation with the aim
Europ e.
plaint iff comp any out of the tea carryi ng trade betwe en China and
would deal
~ey had reduc ed the freigh t by offerin g rebate to custom ers who
WI~
them. As a result of this compe tition the plainti ff had also to reduc e the
iff had no
freigh t and he suffer ed great loss. The Court held that the plaint
protec ted their
cau~e of. action as the defend ants had by lawful means
busrne ss intere sts by increa sing their profit.
red
In Dickson v. Reuters Telegraph Co. the defend ants neglig ently delive
5

conta ined
a telegr am meant for the plaint iff t<? anothe r person . The telegr am
order was
an order for sale of certai n goods . The plainti ffs believ ing that the
d to. accep t
mean t for them sent the goods to the defend ants which they refuse
any sued the
as a result the plaint iff suffer ed a heavy loss. The plaint iff comp
any was not
defen dants for damag es. It was held that the defen dant's comp
were their
liable. They owne d duty only to the sende r of the telegr am who
custom ers, and not to the recipi ent of the telegr am.
InvB fadford . Corporation v. Pickles the plaint iff (corpo ration ) had been
6

defen dant dug

derivi ng water from the adjoin ing land of the defen dant. The
land of the
a pond on his land which dimin ished the water flowin g to the
1. (1410) YB Hill II Hen, 4 of 47 page 21.
2. (1859) 7 HLC 349.
3. (1848) 12 M & W 324.
4. (1892) AC 25.
5. (1877) 3 CPD 1.
6. (1895) AC 587.
 LAW OF TORTS
1~

,f, " ' ""·""

, tf n,l. d,•(\•nd .1111~ lhld rnalidously b 'I
doThnc it ls~ !11at the
I price. e p amtiff su C:or-.-.
~ l f
'" ,,u ' I'"" h.1,.-. 111 .. l,111d ,11 an .'-'' or , an . th e d e fendant
restrain ed fo r -t-'Ot
q qti
• "' ,, ~"'·" "•u, 1 11, ,-.•111(• .111 ln111ncl 1on
10
h d f fro
tfw· ~harl l f''l't h.fc.l n,<' I h111 !-t-, of Lords held u,ot It _et 'ffe eo<lant Was ft\ Qi~qg~11
~ ~t\
" f rm 1o 1hc p am I was d 0
.J h t\o <:>Ri~
''"n
Th f t "'u~h '"" ~1d w h ich (,HIS<'U 3 d if it caused any h arm ne ·•.-....1ali t . t 1•"'f1E>
<lbts:::.
~ , (.>f\."!hf.mt .. ,Kl w.i ~ J i.:-,w(ul acl on
. to th ct048 ~
th Mi lw " ., .. 1101 liable. Lord Ashbourne said : I e Plqlt\ 1y_
71w rlam1iffs ha ve no ca use of action t~ ess dthey can sh tiff
f ater in ques 10n an that th o\v
t I,c~ d~ entitled to the now o w . .. e cle th
h.is no nght to do what he is do1J1g.... . . fel'\q ·iqt
1
ln Ushabt>n " Bhngynlaxrm Clritra MJJndir1 the trpa~::1thhff filed a s,,. ~t
.,,.,. · th d f ndants to res ..... em fr0 ... it f
,-- nnanent ui1unchon against e e e . r · f . m e'dtj Ot
the fil m entitled 'fa, Santos/ti Mao" as it hurt ~JS -~~r:~sz e~lings. In th bitlt\q
Goddesses Saraswati Laxrn i and Parvati are e~nc th ea ous of ea e fi}lrtg
and they were ridk~ led . The court held tha_t s111ce ere was no Vio}:h. Othe,
legal right of the plaintiffs, he was not enhtled to an}:' remedy. It Wahol'\ ();
that hu rt to the religious feelings has not been recogrused as a legal s helct
th erefore it ,s not actionable. 'vtot\g
(b)evfnj
' / uria, Sine Damnum. . , , .
. . f I J ·gJ1ts 'sme means without'
n; unn means v1olahon o ega n · ' . · 'Danz
n:1eans damages in the form of money, h~alth ~d happiness. Thus 'in~4-n1•
Srne damnum' means violation of legal nght ~ 1tho~t any damage t Jur;q
plaintiff. Violation of legal rights of a person is ac_tionable, whether ~ the
caused any real harm or loss to him or not. Acco rd . mg to 'th Salmond tO~s has
· two kinds : First, which is actionable per se _i.e., WI o~t proof of are
0 f
d a m age caused to the plaintiff and secondly, which
, • 'ff are actionable 0 nly an"
J
t h e proof of some damage caused to the p,amtI · on
~ ~by v. White 2 is the leading case on_ the point. In that the plaintiff
a qualified voter in Parliamentary elect10ns. The defendant, who ·Was
returning officer, wrongfully refused to take plaintiff's vote. Consequ Was a.
· · · 'd In ·t f tl · hi entiy h
cou ld not give his vote to his cand1 ate. sp1 e o us s candid e
the election and no harm was caused to him. The plaintiff sued the d ~e Won
for damages. The defendants contended that since the plaintiff had e e;dant
no loss by refusing to accept his vote as his candidate had won the : : e~d
he .was not liable. But it was held that the defendant by refusing to Ctior,
plaintiff's vote violated plaintiff's legal right and was entitled to d accept
Holt, C.]., said : • amages.
"Every injury 'imports a damage though it does not cost th
one farthing. For a damage not merely pecuniary but an injury _e Party
a damage, when a person is thereby hindered of his rights. A:rnport,
act10n for slanderous words, though a man does not loose a m an
reason of repeating them, yet he shall have an action. So a J~nny_ by
another a cuff on the year, though it cost him nothing· no
l' 1 d . , no t so m gives
~L
as a itt e 1achylon (plaster) yet he shall have his action, f or 1t . 18_uu,a

1. AIR 1978 Guj. 13.

2. (1703) 2 Ld Raym 939. Municipal Board Agra v. Asharfilal, (1921) 1 ILR 44 Alld 20.
 GENERAL CONDITIONS OF LIABILITY IN TORT 17

over his ground tl,

personal injury. So, a man 9 1
h . ,all have an action against another f~r n ~g
of his property 'ando~g it does him no damage ; for it is an invasion
·d'

In Marzetti v Will ' 1'e olhers had no right to come there."

. h"1s aceount in
. tiff l,a d sufficient fun d m
. tams . the pl am .
1 defendant's Bank
l
~~:que. It was held tha~~h~e of this, the Banker had refused to hono~ ~is
ough he had suffe d Bank was liable to pay damages to the plaintiff,
a!th re no loss
~ h i m Singh v. State 01,, I &. 2 MLA of
& K. Assembl w . • K., the petitioner Bhim Singh an .
J. nd the Asse;bl as ill~gally detained by the police while he was g~mg to
a_tt~,t to attend th~ ~ssion and was thus prevented from exercising his le~al
rig o000 b w ssembly. The Supreme Court of India awarded ~im
Rs-
5
guaran ee
\ d J A ay of compensation for violation of his fundamental nght
y rtide 21 of the Constitution.
3. Legal Remedy
fit jus ibi remedium .
. A_ tort is a civil wrong for which the remedy is an action for
unbqmdated damages. Thus the main remedy for a tort is an action for
• ti' on of a . chatle
: . restitu
' also such as specific
damages.
. There
. . .er reme d 1es
are oth
and m certain cases Injunction in add"ti· t d But it is an action for
un1· •d t d d 1 on o amages. t rt
.iqm _a e amages which is an essential characteristic of remedy for a O ·
It is mamly the right to damages which brings such wrongful acts within the
ca_te~ory of torts. There are a number of unauthorised acts for which only a
cnmmal .pro~ecution can be instituted. But they are not a tort. Thu~ the law
of torts is said to be a development of the maxim Ubi jus ibi remedtum (there
is no wrong without a remedy).
This maxim m~ans that where there is a right there is remedy: ~at is
to say whenever a nght is violated the person ·whose right has been infringed
has a remedy against the person who has violated it.
The maxim is also said to mean that there is ~o wrong without a
remedy, that is to say that whenever someone is wronged he is given some
remedy. Thus we see that these interpretations mean one and the same thing.
This principle has been established for the first time in the leading case
3
• of &by v. White. In this case the plaintiff was a voter in a parliamentary
elections. The defendant who was the returning officer wrongfully refused to
accept his vote. Inspite of this, the candidate had won the election. The
plaintiff sued the defendant for damages. The defendant contended that the
plaintiff had suffered no damage as his candidate had won the election. It
was held that the defendant was liable to pay damages to plaintiff as they
had violated his legal right-right to vote-whether he has suffered any los~
or not. Holt, C.J., allowed the action on the ground that violation of th•
plaintiff's statutory right was an injury, for which he must have a remed:
and was actionable without ,proof of pecuniary damage. His observations wi
make the thing clear. He said

1. (1930) 1 B & Ad 415.

2. AIR 1986 SC 494.
3. (1703) 2 LO Ramonds 938.
 l.J"I.V V' C>F TC> RTS
18