TORTS & CONSUMER

PROTECTIONAL LAWS

STUDY MATERIAL
LLB - I SEM
 RELIABLE INSTITUTE OF LAW

TORTS & CONSUMER PROTECTIONAL LAWS

Name -Tort/ Torts

Sections- uncodified Law

Punishment- Compensation

1. Evolution,Scope of Torts… ........................................................................ 2-15

2. General Defenses in Tort… ...................................................................... 16-25

3. Absolute and Strict liability… .................................................................. 30-36

4. Vicarious liability… ................................................................................... 37-41

5. Affecting Person ........................................................................................ 42-44

6. Affecting Immovable Property… ............................................................ 45-51

7. Remoteness of Damage ............................................................................ 52-58

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Q: Evolution of and definition of Tort.

SYNOPSIS

INTRODUCTION

a. Meaning
 Latin term –Tortum
 French – Wrong
 Roman law – Delict
b. Definition
 According to Ratan Lal
 According to Dr. Winfield‟
 According to FRASER
 According to Salmond
c. Development of law of Torts
England
 Introduction
 Tort – The birth place of the law of Torts in England.
 Tort – was first reported in Boulton V. Hardy (1597) Case in England.
India
d. Essentials elements of a tort
o Act or omission
o Legal damage
 Injuria sine Damnum (Meaning)
 Damnum sine injuria (Meaning)
o Legal remedy
 Ubi jus ibi remedium “(there is no wrong without remedy)
e. Difference between Torts and crime
f. Difference between Torts and breach of contract
INTRODUCTION

The term “Tort‖ has been derived from the Latin term “Tortum” which means to twist? It
means Twisted, crooked, unlawful, or a wrongful act rather than an act which is straight or
lawful. Tort May be defined as a “Civil Wrong” which is repressible by an action for
unliquidated Damages and which is other than a mere breach of contract or breach of trust‖
Tort is a civil Wrong as opposed to a criminal wrong.

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3
Meaning
The English Term „Tort‟ has been derived from the Latin term “Tortum” which means „to
twist. The same term has been used in French as “Wrong. And the same term has been used
in Roman law As “Delict‟. The Law imposes a duty to respect the legal rights vested in the
members of the society and the Person” making a breach of that duty is said to have done the
wrongful act .As „Crime‟ is a Wrongful Act. Which results from the breach of a duty
recognized by criminal law? A ‗breach of Contract‘ is the non-performance of a duty
undertaken by a Party to a Contract. ‗Tort‟ is a breach of duty recognized under the law of
Torts.
For example – violation of a duty to injure the reputation of someone else results in the tort
of defamation violation of a duty not to interfere with the possession of land of another
person result in the tort of trespass to land and the violation of a duty not to defraud another
results in the tort of deceit.

Definitions

The various eminent jurists defined the term tort in a different manner

According to Ratan Lal

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“A tort is a civil wrong independent of Contract, for which the appropriate remedy is an
action for damages.”

According to Dr. Winfield‟

“Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is
towards persons generally and its breach is repressible by an action for unliquidated
damages.
According to Fraser
“It is an infringement of a right in rem of a private individual giving a right of compensation
at the suit of the injured party.
According to Salmond
“It is 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.

Definitions
In General Sense

We may define tort as a civil wrong which is repressible by an action for unliquidated
damages and which is other than a mere breach of contract or breach of trust.
Thus, it may be observed that:
a. Tort is a civil wrong;
b. This civil wrong is other than a mere breach of contract or breach of trust;
c. This wrong is repressible by an action for unliquidated damages.

a. Tort is a Civil Wrong

Tort belongs to the category of civil wrongs. The basic nature of civil wrong is
different from a criminal wrong. In the case of a civil wrong, the injured party, i.e.,
the plaintiff, institutes civil proceedings against the wrongdoer, i.e., the defendant. In
such a case, the main remedy is damages. The plaintiff is compensated by the
defendant for the injury caused to him by the defendant. In the case of a criminal
wrong, on the other hand, the criminal proceedings against the accused are brought
by the State. Both the civil and the criminal remedies would concurrently be
available. There would be civil action requiring the defendant to pay compensation as
well as a criminal action awarding punishment to the wrongdoer.
b. Tort is other than a mere breach of contract or breach of trust
Tort is that civil wrong which is not exclusively any other kind of civil wrong. If we
find that the only wrong is a mere breach of contract or breach of trust, it would not
be considered to be a tort. If a person agrees to purchase a radio set and thereafter
does not fulfill his obligation, the wrong will be a mere breach of contract. It is only

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 by the process of elimination that we may be able to know whether the wrong is a tort
or not.
It may be noted that there is a possibility that the same act may amount to two or more civil
wrongs, one of which may be a tort.

For example, if A delivers his horse to B for safe custody for a week and B allows the horse
to die of starvation, B's act amounts to two wrongs-breaches of contract of bailment and
commission of tort of negligence.

c. Tort is repressible by an action for unliquidated damages

Damage is the most important remedy for a tort. After wrong has been committed, it is the
money compensation which may satisfy the injured party. After the commission of the
wrong, it is generally not possible to undo the harm which has already been caused.
For example, when a continuing wrong like nuisance is being committee the plaintiff may be
more interested in the remedy by way of 'injunction' to stop the continuance of nuisance
rather than claim' compensation from time to time, 'if the nuisance is allowed to be
continued.

Damages in the case of a tort are unliquidated. It is this fact which enables us to distinguish
tort from other civil wrongs, like breach of contract or breach of trust, where the damages
may be liquidated. Liquidated damages mean such compensation which has been previously
determined or agreed to by the parties.

 Is it Law of Tort or Law of Torts

Salmond had posed the question, "Does the law of Torts consist of fundamental general
principle that it is wrongful to cause harm to other persons in the absence of some specific
ground of justification or excuse, or does it consist of a number of specific rules prohibiting
certain kind of harmful activity, and leaving all the residue outside the sphere of legal
responsibility.
i. Is it the Law of Tort, i.e., Is every wrongful act, for which there is no justification or
excuse to be treated as a tort;
ii. Is it the Law of Torts, consisting only of a number of specific wrongs beyond which
the liability under this branch of law cannot arise?

Winfield preferred the first of these alternatives and according to him; it is the Law of Tort.
According to this theory, if I injure my neighbour, he can sue me in tort whether the wrong
happens to have particular name like assault, battery, deceit, slander, or whether it has no
special title at all; and I shall be liable if I cannot prove lawful justification.

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Salmond, on the other hand, preferred the second alternative and for him, -there is no Law of
Tort, but there is Law of Torts. The liability under this branch of law arises only when the
wrong is covered by anyone or the other nominates torts. There is no general principle of
liability and if the plaintiff can place his wrong in anyone of the pigeon-holes, each
containing a labelled tort, he will succeed. This theory is also known as 'Pigeon-hole' theory.
If there is no pigeon-hole in which the plaintiff's case could fit in, the defendant has
committed no tort.

Winfield's book on the subject is entitled 'Law of Tort,' whereas Salmond's book is entitled
„Law of Torts‟.

Development of Law of Torts

 In England-

INTRODUCTION

The law of Torts originated about same five hundred years ago in England. The Term “Tort”
was first reported in ―Boulton V. Hardy (1597) Crown Eliz. 547, 548 Case. Still this Branch
of Law is in a developing stage. It is the creation of the judicial decisions in various occasions
suited to Particular cases according to those Case-Laws.

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“Ubi Jus ibi Remedium

(There is no wrong without a remedy) is the basis of the Law of Torts in England. This is a
Latin Maxim. The meaning of the legal terms of this legal maxim is –

 Ubi – There

 Jus - The legal authority to do or to demand something.

 ibi - without

Remedium – the right of action the means has given by law for the recovery of assertion of a
right. The Word ‗remedium‟ is also used a Synonym „actio.

This legal Maxim implie equity, justice and good conscience. According to this legal
Maxim. The common law gives a right or prohibits an injury and also gives an appropriate
remedy to the aggrieved. This legal maxim has a more extended signification in the Law of
Torts.

 In India

The birth place of the Law of Torts in England. It is now recognized as a separate branch of
Law. Comparing with England and other developed countries. India is backward in Law at
Torts. We have to accept this bare truth. The reasons for this back wardness are Poverty,
illiteracy. The spirit of Toleration. Lack of consciousness about one‘s right, etc. The Legal
education is not sufficiently spread in India. The delay in Court Proceedings, Costs of the
Suits, etc. is the added reasons for the non-development of the Law of Torts in India.

There are several public nuisances and Negligence‟s in India. Water Pollution, air
Pollution, etc. cause harm and injury to the Public. The Factories release the dangerous
affluent and gases into the environment causing ill-health to the people, flora and fauna. The
Traffic Pollution, land Pollution, noise pollution, water Pollution, air Pollution etc. have
been growing day-by-day in India due to urbanization and industrialization.

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 ESSENTIAL OF TORTS

Act or omission Legal Damages Legal Remedy

Injuria sine damno Damnum sine injuria

Ashby. V White Gloucester Grammer

Bhim Singh V. State of J & K School Case

a. Act or Omission
A person liable for a tort, he must have done some act which he was not expected to
do, or, he must have omitted to do something which he was supposed to do. Either a
positive wrongful act or an omission which is illegally made will make a person
liable.

For example, A commits the act of trespass or publishes a statement defaming

another person, or wrongfully detains another person, he can be made liable for
trespass, defamation or false imprisonment, when there is a legal duty to do some act
and a person fails to perform that duty, he can be made liable for such omission. For
example, if a corporation, which maintains a public park, fails to put proper fencing
to keep the children away from a poisonous tree and a child plucks and eats the fruits
of the poisonous tree and dies, the Corporation would be liable for such omission.

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 somebody fails to help a starving man or save a drowning child, it is
only a moral wrong and, therefore, no liability can arise for that unless it can be

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 proved that there was a legal duty to help the starving man or save the drowning
child.

a. Legal Damage -
In order to be successful in an action for tort, the plaintiff has to prove that there has
been a legal damage caused to him. It has got to be proved that there was a wrongful
act-an act or omission- causing breach of a legal duty or the violation of a legal right
vested in the plaintiff. Unless there has been violation of a legal right, there can be no
action under law of torts. If there has been violation of a legal right,

 Injuria Sine Damno

 Injuria - Legal injury (not ordinary injury)

 Sine -Without

 Damnum - Damage

Injuria sine damno means violation of a legal right without causing any ham 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.Injuria sine damno covers the first of the above stated cases. There is no need to prove
that as a consequence of an act, the plaintiff has suffered any harm. For a successful action,
the only thing which has to be proved is that the plaintiff's legal right has been violated, i.e.,
there is injuria.

Ashby V. White (1703) I.E.R. 417 It is a leading case explaining the maxim
“injuria sine Damnum” The plaintiff was a qualified voter at a Parliamentary
election. The defendant was a returning officer. The defendant wrong fully refused
to take Plaintiff‟s vote. The candidate to whom the plaintiff wanted to vote won in
the election. There was no actual damage suffered by the Plaintiff. The plaintiff
sued the defendant alleging that the defendant did a wrongful act by restraining
him not to vote.

Judgment. The court held 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

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exercise of enjoyment of it; and indeed, it is a vain thing to imaging a right without
a remedy; for want of right and want of remedy are reciprocal.”

In Bhim Singh v. State of J. & K (AIR 1986 SC 494) the petitioner, an M.L.A. of J
& K. Assembly, was wrongfully detained by the police while he was going to attend
the Assembly session. He was not produced before the Magistrate within requisite
period. As a consequence of this, the member was deprived of his constitutional
right to attend the Assembly session. There was also violation of fundamental right to
personal liberty guaranteed under Article 21 of the Constitution. By the time the
petition was decided by the Supreme Court, Bhim Singh had been released, but by
way of consequential relief, exemplary damages amounting to Rs. 50,000 were
awarded to him.

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 Damnum Sine injuria
 Damnum – Damage
 Sine – without
 Injuria – Legal injury (not ordinary injury)

Damnum sine injuria

The maxim ―damnum sine injuria‖means damage or loss without infringement of
legal private right in rem.and no action lies for mere damage or loss , however
substantial ,caused by an act which does not infringe some legal right of the plaintiff
.According to salmond ―There are many acts which though harmful are not wrongful
and give no right of action to him Who suffers their effects ―The person Who suffers
the harm cannot have the remedy in the court of law because the exercise of a legal
right by one person resulted in damages to the other ,without violation of his right.

Gloucester Grammar School Case (1410 Y.B. Hill 11)

The plaintiff was maintaining a School. They charged 40 pence per student per
quarter. The defendants established a rival school near to the plaintiff‟s school.
Due to the competition, the defendants reduced the fee from 40 pence to 12 pence
per student. It caused a considerable loss to the Plaintiff. They used the defendants.
The court held that Danmum may be abseque illjuria, as if I have a .mill and my
neighbour builds another mill whereby the profit of my mill is diminished, I shall have
no action against him, although I am damaged..... But if a miller disturbs the water
from going to my mill, or does any nuisance of the like sort, if shall have such action
as the law gives.

In Chesmore v. Richards(1859)7 HCL 349 )the plaintiff, a mill owner, was for the
past 60 years, using water for his mill from a stream which was fed by rainfall
percolating through underground strata to the stream, but not flowing in defined
channels. The defendants sunk a well on their land and pumped large quantities of
water, which would otherwise have gone to the plaintiff's stream, thereby causing
losses to the plaintiff. The defendants were held not liable.

In Ushaben v.Bhagyalaxmi Chitra Mandir (AIR 1978 Guj .13).the sued for plaintiff
a permanent injuction to restrain the defendants from exhibiting the film named “jai
santoshi maa”It was argued that the film hurt the religious feeling of the plaintiff so
far as goddesses Saraswati and Laxmi were depicted as jealous and were ridiculed. It
was held that hurting religious feeling had not been recognized as a legal wrong
.since there was no violation of a legal right request of injunction was turned down.

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 b. Legal Remedy
“Ubi jus ibi remedium “(there is no wrong without remedy)
The law of torts is said to be the development of the maxim “ubi jus ibi remedium”
Jus means the legal authority to demand reparation or something Remedium means
the right of action.”Ubi jus ibi remedies ―means there is no wrong without a remedy
.In other words ―where there is a right, there is a remedy or there is no right without a
remedy. There was no remedy there was no right .the law was “ubi remedium ibi jus‖
(where there is remedy is a right) If a person has legal right he should have the means
to maintain it. Law helps him not only to enjoy that right, but also provides remedy
for any violation of that right.

A right infringed is required to be legal and the remedy sought also is required to be
legal. The legal right and the legal remedy are two sides of the same coin. There
cannot be a remedy for every breach of moral or political right but there is always a
legal remedy for every breach of legal right.A legal right vested in a person imposes a
duty on another person .If the person who is obliged to do that duty fails to do his
duty he violates the right of the first man and he should compensate for the injury
caused.

The case of Ashby v. White (1703)11 sm cl 251) established for the first time the
principle of “ubi jus ibi remedium”and it was laid dowen by Lord Holt C.J.that “If
the plaintiff has a right, he must of necessity has a means to vindicate and maintain it,
and indeed it is a vain thing to imagine a right without a remedy, for want of right
and want of remedy are reciprocal.

 Difference between Torts and crime

I. A tort is a kind of civil wrong which I. A crime is an offence against state
Gives rise to a civil proceeding which Gives rise to a criminal
proceeding
II. In a tort, the plaintiff is the injured II. In a crime, the state is the injured
party party.

III. A tort is a Violation of the private III. A crime is a breach of public right
Right of an individual considered as which affects the whole community.
an individual.

IV. In a tort the injured party is awarded IV. In a crime the wrongdoer is punished.

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 compensation or damages.

V. In torts the purpose of awarding V. In a crime the purpose of criminal

compensation to the injured party is law is to protect the society by
to make good the loss suffered by him preventing the offender from
committing further offence

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 Difference between Torts and breach of contract

Torts Breach of Contracts

I. In a tort the duties are imposed by I. In a contract the parties, with their
law free consent undertake to perform
certain duties
II. A torts is violation of a right in II. A breach of contract is a violation of
rem i:e right exercisable against a right in personam i:e right
the whole world exercisable against a definite person
or persons
III. In case of a torts the suit is for III. In a breach of contract the
unliquidated damages suit is for liquidated damages
IV. There is no privity in a torts IV. In a contract there must always exist
because it is always inflicted privity between the parties that is a
against the will of the parties binding legal tie between them
injured
V. In tort a man is held liable for V. If there are special circumstances
damages arising from special under which a contract was made and
circumstances of which he has no they were wholly unknown to the
knowledge. parties breaking the contract, he is
not liable for damages solely to those
circumstances.

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PERSONS PERSONS WHO CANNOT BE SUED. WHO CANNOT SUE?

Introduction
Exemptions to General Principle of Personal Capacity
 Persons who cannot sue?
 Convicts (felons)
 Alien Enemy
 Husband and Wife
 Corporation
 A child in Mother's Womb:
 Bankrupts or Insolvents
 Foreign State
 Persons who cannot be sued.
 Crown or king
 Public Officials
 Judicial Officers
 Foreign Sovereigns
 Ambassadors
 Infants/Minors
 Lunatics or persons of Unsound Mind
 Drunkard
 Corporation
 A Trade Union
INTRODUCTION

Sir Frederick Pollock states, "There is no limit to personal capacity either in becoming
liable for civil injuries or in the power of obtaining redress for them". The general principle
is "All persons have the capacity to sue and be sued in tort." But, there are certain exceptions
to this general rule and is subject to modification in respect of certain categories of persons.
Some persons cannot sue and some persons cannot be sued.

Exemptions to General Principle of Personal Capacity

 Persons who cannot sue?

The following persons cannot sue due to their personal capacity:

 Convicts (felons)
A convict is a person against whom judgment of death or penal servitude has been
pronounced on any charge of treason or felony.

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English law - "Criminals even when undergoing imprisonment, have the same right of action
for torts as a man with a blameless life. Those who break the law remain the Queen's
subjects, they are not her enemies.”
In India- may sue' and be sued for torts both to his person and property Article 21 of the
Indian Constitution says that “no person shall be deprived of his life or personal liberty
except according to procedure established by law” A prisoner or even a convict is entitled to
the precious right guaranteed by Article 21 of the Constitution.

 Alien Enemy
‗Alien enemy' means a person who by reason of owing a permanent or temporary allegiance
to a hostile power, becomes, in time of war, impressed with the character of an enemy. Alien
enemy is a person of hostile nation or a person residing in or carrying on business in enemy
territory, whatever his nationality”
In India- the law is different An alien enemy is a person who voluntarily resides or carries on
business in a country at war with India. As residence in enemy territory is the real test, even a
citizen of India resident there will fall within the description. An alien enemy residing outside
India or in India without the permission of the Government cannot sue in an Indian Court.

 Husband and Wife

In England- at common law, prior to Married Women's Property Act, 1882 and the Law
Reform (Married Women and Tortfeasors) Act, 1935, a married woman could not sue for any
tort committed by a third person unless her husband joined with her as plaintiff. It was also
not possible to sue against her without making her husband as a defendant. But after these
acts, it has become possible that a married woman can sue or can be sued without making her
husband as a joint party. Under the Married Women's Property Act, 1882, a husband also is
liable for pre-nuptial torts of his wife to the extent of the property he acquired through her.
The Law Reform (Married Women and Tortfeasors) Act, 1935 has changed the position and
now husband is not liable for any tort of his wife, whether committed by her before or after
marriage merely because he is her husband. If the husband and wife are joint tortfeasors, they
can, be made liable jointly as such.
(Action between spouses)

In England- at Common law, the wife could not sue her husband nor could the husband sue
his wife, if the other spouse committed a tort. But Married Women's Property Act, 1882
permitted a married woman to sue her husband in tort for the protection and security of her
property,' but she could not sue her husband if he caused her any personal injuries. Thus if the
husband damaged her watch she could sue for the same, but if he negligently fractures her
legs she could not bring an action for that. The husband had no right at all for an action for
any kind of harm caused by his wife to him.

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In India- the wife may sue her husband for torts to her separate property and the husband
may sue his wife for torts to his property. But neither of them can sue the other for assault,
defamation, or other personal injuries.

In India, Section 7 of the Married Women's Property Act, 1874 provides, "A married
woman may maintain a suit in her own name for the recovery of property of any description
which by force of the said Indian Succession Act, 1865, or of this Act, is her separate
property, and she shall have, in her own name the same remedies, both civil and criminal,
against all persons, for the protection and security of such property, as if she were
unmarried, and she shall be liable to such suits, processes and orders in respect of such
property as she would be liable to if she were unmarried.”
The wife cannot sue her husband for personal injuries on the basis of personal laws of
different communities, but she can sue her husband's employer if husband has committed a
tort against her during the courts of employment. It follows that on the basis of parity, a
husband may also recover against 'her employer if she has committed a tort against her
husband during the course of her employment.

 Corporation
A Corporation is an artificial juristic person, It is considered as a legal person, In
Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. [1915 AC 705 (713)],
Viscount Haldone LC observed that "A corporation is an abstraction. It has no mind of its
own any more, than it has a body of its own; its active and directing will must consequently
be sought in the person. Of somebody who for some purposes may be called an agent, but
who is really the directing mind and will of the corporation, the very ego and centre of the
personality of the corporation. The features of corporation lie in name, perpetuity of existence
and capacity to sue and be sued.

A. Corporation can sue for torts against itself, for malicious presentation of a winding-
up petition.
B. A libel charging it with insolvency or with dishonest or incompetent management.
C. A Corporation may bring action for those civil wrongs which affect its property. It
can sue for defamation where words cause injury to its reputation in relation to its
trade or business. But Corporation cannot sue for those torts which are not affecting
property etc. For instance corporation cannot sue for any tort of defamation. But if
corporation is involved in commercial activities and a publication adversely affects.

Corporation business then it may bring actions for the wrongs. A corporation shall not be
responsible for malicious prosecution. It cannot sue for certain torts such as assault, battery,
false imprisonment etc., because they cannot be committed against corporation.

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A corporation could be held liable not only for trespass, libel, turnover, conversion or
negligence, but also for malicious prosecution or fraudulent misrepresentation.
A corporation can be sued even for torts in which malice is an essentials condition provides
the following requirements are fulfilled.

The tortious act is committed by the agents or servants within the scope of employment or
is authorized or ratified by it.
(i) The act committed is within the powers of the corporation.
(ii) A corporation created by a statute is Subject to liabilities which the
legislature intends to impose.
A corporation is liable for torts committed by its agents or servants as an employer for the
torts of his servants, when the tort is committed in the course of doing an act within the scope
of the powers of the corporation.
A corporation can be sued for malicious prosecution, privileged occasion, or for fraudulent
misrepresentation, no less than for trespass, conversion, or negligence.‖

 A child in Mother's Womb:

In England- for a long time, an infant can sue for any tort done to him, but he cannot
maintain an action for injuries sustained while en ventre sa mere (Le. in the mother's womb).
In Walker v. G.N. Ry [(1891) 28 LR (IR) 69, it was held that the child could not maintain
an action for damages, where a woman who was with child in womb was injured by a
railway accident as a result of which the child was born deformed. The decision was based
on the ground that there was no duty of care to an unborn person, who was not a legal
person. Salmond argued why an existing but unborn child should be deprived of the
protection against willful or negligent injuries inflicted upon it. In Elliot v. Joicey [(1935) AC
204 (238-41)] it was allowed damages against manufacturers of the drug 'thalidomide' which
when used by expectant mothers, produced deformed children In Re George and Richard
[(1871) 3 A & E 466], it has been held that a child en ventre sa mere can claim under the
Fatal Accidents Act, 1846.

A child cannot sue for injuries which were inflicted on him while he was in the mother's
womb because such injury was inflicted on the mother, but law has mitigated arising out of
the situation. Under common law such a principle of law proved most unsatisfactory, a
procedure was developed which entitled a child to sue "rough a next friend for any tort is
affecting his body or property. Thus et1lld in mother's womb may file suit for the recovery
of damage.

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Bankrupts or Insolvents
An insolvent person whose property is administered for and distributed among his creditors
in accordance with the provisions of a system of laws is called 'bankrupt'. When a person
files an insolvency petition before the court, he is declared as 'insolvent' and an Official
Trustee or Assignee or Receiver is appointed by the court for the benefit of his creditors.
An insolvent may be sued for a tort committed by him either before or during insolvency.

 Foreign State

In England,- foreign State cannot sue in court, unless such State has been recognized by
Her/his Majesty.

In India- as regards foreign State, under Section 84 CPC a foreign state may sue in any court
in India, provided that such State has been recognized by the Central Government, and
provided also that the object of the suit is to enforce a private right vested in the Head of the
State or in any Officer of such state, in his public capacity.

Persons who cannot be sued.

Under law of torts there are following types of persons who cannot be sued:

 Crown or king
In England- it is a fundamental principle that 'the king can do no wrong' and the immunity
of the crown from civil liability is based on the above maxim. So an action for personal
wrong will not lie against the crown. He is not responsible even for the wrongs committed by
his servants in the course of employment.

In India- the Maxim 'lex non potest peccare' i.e., the king can do no wrong had no place in
ancient or in medieval periods. Kings in both the periods subjected themselves to the rule of
law and system of justice prevalent like ordinary subjects of the States.

In present India, there is no king. As per the provisions enshrined in the Constitution of
India, the President and the Governors shall not be answerable to any court (i) for the
exercise and performance of the powers and duties of their office; (ii) for any act done or
purporting to be done by them in the exercise and performance of those powers and duties.
Under Section 87B of the CPC, no ruler of any former. Indian State may be sued in any court
except with the permission of the Government of India.

20
 Public Officials
Government Officials in England are employed in' the service of the crown and crown
cannot do any wrong and, they cannot be sued in their representative capacity for torts
committed by them of by their subordinates. They are not liable for the torts committed by
their subordinates unless they have expressly authorized or ratified them for the obvious
reason that their subordinates are not their servants. No action lies against a public official for
acts done in exercise of sovereign power provided that the act is such as can be performed
only by sovereign. This immunity is provided on the principle of respondent superior.

In India- if a tort is committed by the Government servant during the course of employment
then Government shall be held responsible union of India as well as respective States are
responsible for the civil wrong of Government servants.
Article 300 of the Constitution of India enacts that the Government if India may sue
and be sued by the name of the Union of India; a State may sue and be sued in the name
of the State.

The Supreme Court got the opportunity to examine the position in the State of Rajasthan v.
Mst. Vidyawati [AIR 1962 SC 933]. In this case a driver of Jeep Car owned and maintained
by the State of Rajasthan for the official use of the Collector of the district, drove it rashly
and negligently while coming back from the workshop where the car was repaired. An
accident occurred and the husband of Vidyawati was killed. The court held that the State
can be made liable for the acts of its servants, like any other employer. But the court made
it clear that immunity did not extend to all acts done by the Government servants during
the course of employment, but only to such acts as done in the exercise of the sovereign
power.

 Judicial Officers
No Judge, Magistrate, Collector or other persons acting judicially can be sued in any court for
any act done by him in the discharge of his judicial duty, whether or not within the limits of
his jurisdiction. Judicial Officers' Protection Act, 1850 grants protection to a judicial officer
for any act done or ordered to be done by him in the discharge of his judicial duty. He is
protected even though he exceeds his jurisdiction provided that at that time he honestly
believed that he had jurisdiction to do or order the act complained of.

The protection granted to a judicial officer is absolute provided that the act done by him in
discharge of his judicial duties was within his jurisdiction. No such protection is granted if a
magistrate is acting mala fide and outside his jurisdiction.

21
In Sailajanand Pandey v. Buresh Chandra Gupta [AIR 1969 Pat. 194], the magistrate
acting malafide, illegally and outside his jurisdiction, ordered the arrest of the plaintiff. The
Patna High Court held that he was not entitled to the protection given by the Judicial
Officers' Protection Act, 1850 and was, therefore, liable for the wrong of false imprisonment.

In State of UP v. Tulsi Ram [AIR 1971 All. 162], the judicial magistrate signed an order
for the arrest of the acquitted persons along with others. The Allahabad High Court opined
that in the performance of the purely executive function, the judicial officer signed the
warrants without looking into the orders of the High Court and the Sessions Court. He
failed to apply his mind to the facts of the case or to directions given to him. It cannot be
said that he was protected at all by the Judicial Officers' Protection Act in signing warrants
negligently.

 Foreign Sovereigns

Municipal Courts of a country cannot take cognizance of foreign sovereigns. They are
immune from the jurisdiction of the municipal courts. Under international law all sovereigns
are equal. They enjoy such special privileges. But if a sovereign voluntarily submits himself
before the court then court may take cognizance. In India also it is general law of the
country that foreign sovereigns are not amenable to jurisdiction of local court.

The plea of sovereign immunity, when available, cannot absolve the wrongdoer. In Mrs.
Usha Aggarwal v. Union of India [AIR 1985 P & H 279], it was observed that its can ensure
only for the benefit of the State where it is sought to be held vicariously liable for the acts of
its servants, acting in the course of their employment

In State of Orissa v. Mist. Amruta Devi [AIR 1987 Orissa 317] it was observed that the plea
of sovereign immunity can be available where the powers can be exercised only by a
sovereign or a person by virtue of delegation of such powers to him.

 Ambassadors
Ambassador or a diplomatic agent cannot be sued for torts either in the Courts of England or
in the Courts of India on principles of international policy.

In India- no suit can be brought against an Ambassador, or a High Commissioner on other

diplomatic envoy without the consent of the Government of India. With a view to give effect
to Vienna Convention on Diplomatic Relations, 1961, Indian Parliament enacted the
Diplomatic Relations (Vienna Convention) Act, 1972. Section 4 of the Act provides that if it
appears to the Central Government that a State which is a party of the Vienna Convention

22
on Diplomatic Relations, 1961, is in breach of its obligations arising thereunder or, that the
privileges and immunities accorded to the Indian Mission or members thereof in the territory
of any State which is a party to the Vienna Convention, are less than those conferred by this
Act on the Diplomatic Mission of the State or members thereof, the Central Government may
notwithstanding anything contained in this Act, by notification in the Official Gazette,
withdraw such of the privileges and immunities so conferred from the diplomatic mission of
the state or from members thereof as may appear to the Central Government to be proper.

The immunity given to the Ambassadors extends also to the family of such Ambassador. The
remedy against an Ambassador is to move one's own Government to induce the Government
of that country to take action against the said Ambassador, and his staff, which they may
think fit to satisfy the· Government which complains.

Indian law Section 86· of CPC, 1908 provides that suit against ambassadors and envoys
may be' brought but only with the consent of the Central Government certified in writing
by a Secretary to that Government. Section 86 further provides that an Ambassador or
diplomatic agent and his family have the same protection.

 Infants/Minors

'Infant' is a child during the first few years of its life (' Infantia' (Lat) means childhood to
the age of seven years); (in law) minor. An 'infant' means, in law, a person who is below
eighteen years of age in India and twenty-one years in England. The first rule as to liability
of minors for their torts is that ordinarily infancy per se is no defence to an action for torts.
Infants are liable for wrongs of omission as well as for wrongs of commission.

In Swaroop Kishore v. Gowardhandas [AIR 1956 MB 84], a boy of 16 years slapped the
plaintiff in presence of several persons and pleaded that defendant cannot be held liable in
damages as he was a minor. But this contention was rejected as a minor can be held liable
for his torts like an adult. The rule of exemption applies where an act is innocent in itself
but becomes tortious by the addition of some ingredient such as intention, malice,
knowledge or state of mind in the person charged as a wrong doer that the age and mental
capacity of the infant becomes relevant.

 Lunatics or persons of Unsound Mind

The term 'lunatic' is derived from the Latin 'luna' in consequence of the supposed influence
of the moon on mental disorders and from 'Iueidus' with reference to the lucid intervals
enjoyed by sufferers from lunacy.

23
'Lunatic' means an idiot or person of unsound mind. The word 'idiot' and 'unsoundness of
mind' indicate an abnormal state of mind as distinguished from weakness of mind or
senility following old age. A man of weak memory or of even more weak mental strength
cannot be called an idiot or a man of unsound mind.

“Unsoundness of mind' is the state of not being mentally sound or normal. The term 'unsound
mind' means 'not mentally sound or moral; not sane'. The term 'unsound mind' signifies 'non
compos mentis' and lunacy. Lord Eldon said that 'unsound mind' imported a state
contradistinguished both from idiocy and from lunacy, and yet such as to justify a
commission. It does not necessarily import incapacity.

For the defence of lunacy, Salmond lays down the following rules:
1) in wrongs based on malice or some specific intent, lunacy may be a good defence as
disproving the existence of any such malice or intent;
2) In wrongs of wilful interference with the person or property, such as trespass,
assault or defamation, it is no defence that the defendant was under an insane
delusion or could not realise that what he was doing was a wrongful act. If,
however, the insanity is so extreme that the act cannot be held to be a voluntary act,
there cannot be any liability where intention is an ingredient of the particular test
committed by him;
3) In wrongs of absolute liability, lunacy is no defence at all;
4) In wrongs of negligence, where the conduct of the defendant must be judged by
reference to his knowledge, or means of knowledge, lunacy may be relevant as
evidence that the necessary knowledge or means of knowledge did not exist.

 Drunkard
In the law of tort drunkenness is not a good defense. The drunkard knows the
consequences of what he does. An act done voluntarily knowing the nature of the act is a
tort liable for damages, Hence drunkard is liable for the torts if he drinks voluntarily and
acts in such a way to injure others. If A administers intoxicants heavily in B's drinks
against his will, or by fraud, or by mistake then B may not be held liable in tort
provided he is unable to differentiate between right and wrong
Corporation
A Corporation cannot be sued, unless:
I. the act done was within scope of authority of the agent employed by it, and
II. The act done was within the purpose of the incorporation.

24
The same principles which govern the vicarious liability of a principal for torts of his
agents or of a master for torts of his servants, govern the liability of a corporation for the
torts of the agents and officials. But a corporation can sue and be sued, for
1. defamation;
2. deceit; and
3. Malicious prosecution.

 Trade Union
A trade union is a legal person like university or corporation. It shall not be sued for the torts
which involve mental condition necessary for its commission but trade union may be held
responsible, consequently may be sued for the torts committed by its members in course of
prosecution of the object of the trade union. But under Indian Trade Union Act, a trade
union may be sued like other persons.

Ques. Define Defamation as tort and bring out the difference between Libel & Slander
also discuss its exception or defences.

Ans.

Defamation

A man‘s reputation is more valuable than other property. Everyman has the right to
protection of his reputation. Injury to one‘s reputation has been termed as defamation.
Defamation is an act which constitutes both civil & criminal liability. The object of law of
defamation is to maintain the balance between freedom of speech and right of reputation.

Defamation is defined by the eminent jurist as under –

―Defamation is the publication of a statement which tends to lower a person in the estimation
of right thinking members of society generally or which tend to make them shun or avoid that
person‖
…………..Dr. Winfield

―Defamation is the publication of false & defamatory statement regarding another without
any justification‖
…….Salmond

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English Law – Under English law there are two types of defamation i.e. Libel & Slander

English Law

Libel Slander
Libel – Libel is the defamation in a written permanent form, normally addressed to the eye,
through printed picture caricature, film etc. it is self prosecuted i.e. it shall not be necessary to
allege or prove special damage.

Slander – It is the defamation in a oral, temporary form, normally addressed to the ear,
through words or gesture. It is not self prosecured i.e it shall be necessary to allege or prove
special damage.

Difference between Libel & Slander -

1. Nature – In Libel the defamation statement is made in some permanent & visible form,
such as written printing & pictures etc while in slander defamation statement is made by
some spoken words whether visible or audible such as gesture etc. it is therefore generally
said that libel is addressed to the eye & slander is addressed to the ears.
2. Scope – Libel is actionable perse (in itself) i.e. without proof of actual damage, where as
slander is actionable only on proof of actual damage.
3. Injury - Libel is not merely an actionable tort but also a criminal offence while slander is
a civil injury only and not a criminal offence except in some cases.
4. Limitation – Limitation for instituting criminal proceeding or civil suit against the
defendant for libel in 6 yr in England and 1 yr in India while in Slander it is 2 yr & 1 yr
respectively.

Indian Law - In India both civil & criminal action can be taken against defamation. Sec 499
of I.P.C defines defamation as publication of false statement with intentions, while the
liability for defamation in tort does not depend on the motive or malice of the defendant. The
distinction between Libel & Slander is not recognized under Indian Law.

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Essential of Defamation - In an action for defamation as tort, the plaintiff has to prove the
following essentials –

Essentials of Defamation

Statement must Statement must Statement must

be defamatory refer to plaintiff be published

1. The statement must be defamatory – A statement is defamatory if it tends to injury the

reputation of a person to whom it refer. Such a statement tends to diminish the good
opinion that other holds about the person and it has a tendency to make other look at him
with a feeling of hatred, Contempt, ridicule, fear or dislike him in his profession or trade.
2. The statement must refer to the plaintiff – In an action of defamation, the plaintiff has
to prove that the defamatory statement made by the defendant referred to the plaintiff,
through his name might not have seen expressly mentioned in that statement.
3. Statement must be published – Publication of defamatory matter is essential. If there is
no publication there is no injury to reputation and no action will arise. The term
publication in general means making a thinking public known but here it means the act of
making known to any person or persons other than the plaintiff himself.

Defences in case of Defamation - The following are the defences generally taken in
following an action of defamation-

Defences

Truth Comment Privilege Apology

Absolute Privilege Relative Privilege

1. Justification of truth – In an action for defamation, truth of the defamatory statement is

a complete defence. It is not necessary for the defendant to prove that every words of the

27
 defamatory statement is true. It will be sufficient, if the statement through not perfectly
true is substantially correct.
2. Fair & Bona-fide Comment – Every person is entitled to express his opinion on matters
of public interest is a good defence in an action for defamation.
3. Privileged Statement – There are certain occasion which are so important that those
making statement up on them are not liable in defamation, even through their statement
are untrue & even malicious. The privilege is of two kinds-
(A) Absolute Privilege – A statement is absolute privileged when no action lies even through
it is false, deliberate or defamation & made out of malice. The defence of absolute
privilege is available in :-

(a) Parliamentary Proceedings; (b) Judicial Proceedings; (c) Military & Naval
Proceedings; (d) State Proceedings

(B) Qualified Privilege – In certain circumstances it is thought desirable that reflection on

the reputation of others although untrue, should not give rise to tortious liability provided
that they were not published with malice. The defence of qualified privilege in an action
against defamation may extend to the statement has been made in discharge of a duty, or
when the statement is made in self defence or in public interest.

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4. Apology – The offer or the making of an apology is not at common law, a defence
although it may be given in evidence in mitigation of damage. The plea of apology is
maintainable only when the person defamed accepted the apology.
5.

Problem - Whether defamation of a deceased person can be made?

Solution - Defamation of deceased person is not a tort, but it is a crime. According to Exp 1
of Sec 499- ―the statement may amount to defamation to impute anything to a deceased
person if the imputation would have been alive & it is intended to hurt the feelings of his
family or other relatives‖.

Problem - Whether defamatory statement from husband to wife or vise versa

constitutes defamation?

Solution - Legally husband & wife to be assume a single person, so defamatory statement
only by husband to his wife or vise versa would not amount to defamation but if the
defamatory statement is published, then it would amount to defamation.

Also a communication between a husband & a wife does not amount to publication. Example
– A writes to his wife B that X is dishonest person & also that nobody else knows that. Then
X can‘t sue A for defamations he has not made publication of libel. Similarly the wife can
safely communicate a defamatory statement to her husband. But on the other hand, if the
defendant makes a statement to the wife or the husband of the plaintiff makes defamatory
statement of the other spouse, he makes a publication and is liable.

29
Problem - A abuse B in a alone room. Discuss the liability of A.

Solution - The most essential element of defamation is that defamation statement should be
published means It comes to the knowledge of any person other than plaintiff himself. In the
above problem there is no one else in a room who can hear the abuses of A. So defamation
would not constitute.

Problem – „A‟ ordered to his servant that he did not make „B‟ to come in the shop
because „B‟ is a thief. Is this a defamatory statement?

Solution – In the above problem ‗A‘ said thief to ‗B‘ in front of his servant means the
statement is published, so ‗B‘ can sue on ‗A‘ for defamation but the statement of ‗A‘ is true
then no defamation said to be constituted.

Problem – A say………………..to a woman. Discuss the liability of A.

Solution - The essential element of defamation is that there should be the publication of the
defamatory statement. In the above problem if any other person listened this statement of ‗A‘
then the woman sue for defamation against ‗A‘ but if this is not listened by of any person
other than plaintiff (woman), then the woman cannot sue for defamation.

Innuendo - Sometimes the statements may not be Prima facie defamatory and they appear to
be innocent in their natural & ordinary sense but because of some lalent or secondary
meaning the plaintiff may prove that they are defamatory & carry a libelous meaning with
reference to him. e.g., where a proprietor of a newspaper published erroneously the news
which he believed to be true, that the plaintiff (a girl) had given birth to twins although she
was married only a month ago, he was held liable for defamation as it indirectly caused as
perisions on the character of the girl for giving birth to an illegitimate child.

30
Ques. Discuss the rule of strict liability & Absolute liability.

Ans. Strict liability - This is a famous rule of English law. Under this rule the defendant is
liable for the harm even though the same is unintentional & also without any negligence on
the part of the defendant. The rule of strict liability was formulated in 1868 by the House of
Lords in Ryland‟s Vs Fletcher & therefore it is also known as Ryland‘s Vs Fletcher rule.

In the above case Blackburn J, summarized the above rule as ―If the person who, for his
own purpose brings on his land & collects & keeps there anything likely to do mischief it
escapes must keep it as his peril & he does not do so, he is Prima facie answerable for all the
damage which is the natural consequences of its escape though he had not been negligent‖.

Essential Elements - For application of the rule of strict liability, following essential
conditions must be present-

Essentials of Strict Liability

Some dangerous thing Non natural use of land Plaintiff suffered from
damages bought or collected on land
& it should be escaped

1. Some dangerous thing bought or collected on land - The first essential condition
for the application of the rule is that the defendant must have bought or collected on his
land & kept there some dangerous things or anything likely to do mischief if it escapes
like water, gas, electricity, poisonous trees, sewages, explosive etc.
2. Non natural use of land - Every person have a exclusive right to use his land but
he can‘t use his Land in non natural manner. The use of land is natural or not is depend
upon the fact & circumstances of each & every case.
3. Plaintiff suffered from damages - Move on one‘s land bringing or keeping a
dangerous thing & non natural use of land is not an actionable wrong, unless & until
plaintiff suffered some damage from that thing.

31
32
Exception (Defences) of strict liability - The rule of strict liability not follows in the
following conditions or following are the defences of defendant in case of strict
liability—

Exceptions of Strict Liability

Plaintiff‘s own default Natural use of land Act of the stranger Mutual
Benefit

Act of God Consent of the plaintiff Legal Authority

(Vis Major) (Volenti non fit injuria)

1. Plaintiff‟s own default - Where the damage is caused to the claimant solely by his own
act or default he shall have no remedy against the defendant. As in case of Ponting Vs
Noakes where in the plaintiff‘s horse reached over the defendants boundary, nibbed some
poisonous leaves & died, the plaintiff could not recover anything because the damage was
due to his own horse‘s intrusion & there had been no escape of vegetation.
2. Act of God (Vis Major) - The principle of strict liability does not apply for the
damage caused due to acts which are irresistible & beyond human contemplation &
caused due to operation of some superior force which is beyond human control.

33
3. Natural use of land - The rule of strict liability does not apply in the case where the
things are present on a person‘s land in the natural form or arise on the land, even though
they are dangerous.
4. Consent of the plaintiff -The rule of strict liability is not applicable in the cases where
the things which escapes was brought or kept upon defendant‘s premises by the defendant
with the consent of the plaintiff. This exception is also called volentin non fit injuria.
5. Act of the stranger - Where damage is caused due to wrongful act of a third party or
a Stranger over whom the defendant had no control the defendant will not be liable.
6. Statutory Authority -Where the defendant acted in pursuance of special statutory
authority in placing the dangerous thing on the land from which it escaped the rule is not
applicable.
7. Common Benefit -If the dangerous thing has been bought on the defendant‘s land for
the common benefit of both the plaintiff & the defendant, the defendant will not be liable
for harm caused by the escape of such things.

Ques. Whether the rule of Ryland‟s Vs Fletcher applicable in India?

Ans. In a case of state of Punjab Vs M/s Modern Cultivators, the Supreme Court expressly
held that India is a agricultural based country so to store a water on land is not to be
considered unnatural use of land. Supreme Court held that, In India the general rule in Ryland
Vs Fletcher is accepted, though in some cases, the principle in the case was considered to be
modified in application to the Indian conditions.

Absolute Liability - The rule of absolute liability comes after strict liability in India. Under
this rule the defendant is also liable for the harm even though the same is unintentional &
also without any negligence on the part of the defendant, but because rule of absolute liability
is not subject to any of the exceptions like strict liability have it is called absolute liability.

34
The rule of absolute liability is formulated in M.C Mehta Vs Union of India, & therefore it
is also known as M.C. Mehta rule.

In the above case the court found that victims of the leakage of dangerous substances like that
could not be provided relief by applying the rule of strict liability. This was so mainly
because of the various exceptions to that rule, when by the defendant could avoid his liablity.
In this background, the Supreme Court held that it was not bound by the rule of English Law
formulated in a different context in the 19th Century & evolved a new rule, the rule of
absolute liability. According to this rule, when an enterprise is engaged in a hazardous or
inherently dangerous industry which posses a potential threat to the health & safety to person,
it owes an absolute & non-delegable duty to ensure that no harm results to anyone from such
activity, the enterprise must be absolutely liable to compensate for such harm & should not be
allowed to avoid liability by pleading that it was not negligent.

Distinguish between Strict liability & Absolute liability -

1. Rule – Strict Liability is also known as Ryland‘s Vs Fletcher rule while Absolute
Liability is also known M.C Mehta Vs Union of India.
2. Exceptions – The rule of strict liability have some exceptions while no exception can be
accepted in case of Absolute Liability.
3. Relation – Serious nature of acts comes under strict liability while Absolute Liability is
related with poisonous gases or dangerous things.
4. Effect – Generally Strict liability affect single person only while Absolute Liability
affects the whole world or a large number of people.

35
5.
Ques. Define Negligence and write its essential elements with the help of important
cases. Or Donogue Vs Stevension.

Ans. Negligence - The Various jurists defined negligence as under –

―Negligence as a tort is the breach of a legal duty to take care which results in damages‖

…..Winfield
―Negligence is the Violation of legal duty to take care‖
……Salmond
Essentials of Negligence - In Hevan Vs Ponder it was held that in action for negligence the
plaintiff has to prove three essentials to prove the liability of the defendant –

Essentials of Negligence

The Defendant owed a legal duty Breach of legal duty to take Damage to plaintiff
of care towards the plaintiff care by defendant

Magnitude of the risk The importance of the object

1. The Defendant owed a legal duty of care towards the plaintiff – One of the essential
conditions of liability for negligence is that the plaintiff has to establish that the defendant
owed to the Plaintiff a specific duty to take care. The duty should be legal rather than a
mere moral, religious or social duty.

In Donogue Vs Stevension – A purchased a bottle of ginger beer, from a retailer for the
appeliant, a lady friend some of the contents were poured into a tumbler & she consumed the

36
same when the remaining content of the bottle were poured into her tumbler, the decomposed
body of snail. The appellant alleged that she seriously suffered in her health in consequences
of her having drunk part of the contaminated contents. The bottle was said to have been of a
dark coloured glass & closed with a metal cap so that the condition of its contents could not
be ascertained by inspection. She brought an action against the manufacturer for damage. It
was held by House of Lords that the manufacturer owed her a duty to take care that the bottle
did not contain noxious matter & that he would be liable on the breach of duty.

In the above case lord Atkin, propounded the “Doctrine of Neighbour” which means
everyone should take care of his neighbor are the persons who are so closely & directly
affected by my act that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omission which are called in question. In this case
it is also held that the test to decide whether the defendant owes a duty to the plaintiff or not
is reasonably forcibility of the damage which may be caused to the plaintiff, so every person
should take reasonable care to avoid acts or omission which he can reasonably foresee are
likely to injure the plaintiff.

2. Breach of legal duty to take care by defendant – Whether defendant breaches the legal
duty to take care towards plaintiff or not will depend upon facts & circumstances of each
& every case. Generally, the law requires following 2 points into consideration to
determine the standard of care required –
(A) The Magnitude of the risk – The degree of care varies according to the likelihood of
harm & seriousness of injury. A person handling a loaded gun is expected to take more
care than a person an ordinary stick. When there is some apparent risk due to abnormal
conditions, necessary care must be taken to prevent harm.
(B) The importance of the object to be attained – The law does not require greatest
possible care but the care required is that of a reasonable man under certain
circumstances. The law permits taking chance of some measure of risk in public interest
various kinds of activities should go on. Like by running trains at a speed of 50 miles/ hr
railway companies have caused many fatal accidents which could quite easily have been
avoided by running at 5 miles/hr. But this additional safety would a hainted at too great a
cost of public convenience.
3. Damage to plaintiff – Apart from negligence the plaintiff should also prove that as a
result of the negligence act he had suffered damages. If the injury is not the direct &
immediate consequences of the negligent act but is remote, the defendant will not be
liable.

37
 Vicarious Liability

Generally a person is liable for the wrongs committed by him, but there are certain cases
where a person is held liable for a tort committed by another. This type of liability is called
vicarious liability or substituted liability.

Basis of Vicarious liability – According to the old view the vicarious liability is based
mainly on the following two maxims –

Basis of Vicarious Liability

Qui facit per alium perse Respodent Superior

1. Qui facit Per alium Perse – This means that a person who does an act through another is
deemed in law to do it himself.
2. Respodent Superior – This means the superior must be liable in tortiuous proceedings.

According to Modern View Vicarious liability is based mainly on the following three
relations-

Modern View of basis of Vicarious liability

Ratification Abetment Legal Relation

Master & Servant Company & Director Guardian & Wards

Principal & Agent Firm & Partners

1. By Ratification
2. By Abetment
3. Special relationship like (a) Master & Servant (b) Principle & Agent (c) Firm & its
partners (d) Company & Director (e) Guardians & Wards

38
Liability of Master & Servant – A master is liable for the tort committed by his servant. For
holding a master liable for the tort committed by the servant the following 2 conditions must
be proved –

1. There must be relationship of master & servant between the defendant & the person
committing the tort

2. Tortious acts must have been committed by the servant in the course of his employment.

39
Criteria of master–servant Relationship – In order to ascertain the existence of master
servant relationship, the test of Hire & Fire is used. According to this test, a person is said to
the master of other if he has the following powers-

1. To select his servant, to pay wages etc.;

2. To control the method of doing work by the servant ;
3. To suspend & dismiss his servant.

Doctrine of course of an employment - In Sita Ram Vs Shantanu Prasad, S.C held that in
the following condition an act done by the servant is to be considered an act in the course of
an employment-

Doctrine of course of an employment

Where servant acts Where servant act Mistake by Servant Where servant
Negligently fraudulently or unlawfully Delegates
his act

(A) Where servant acts negligently – In Century Insurance Company Ltd. Vs Northern
Ireland Transport board, the servant was a driver of a petrol tanker. While the petrol was
being transferred from tanker to a storage the driver lighted a cigarette & threw the match
negligently, the lighted match ignited some material on the ground & the fire spread to the
main hole of the storage tank causing damage to the plaintiff‘s property against the owner of
the oil tanker. It was held that the owner of the oil tanker was liable because the negligent act
of the servant was done in the course of his employment.

(B) Where servant act fraudulently or unlawfully – In Lloyad Vs Grace Smith & Co., the
defendant firm of solicitors, employed one sandles, as a clerk. Most of the work of the firm
was done by him. The Plaintiff was a widow who owed some cottage. She went to
defendant‘s office for the purpose of getting her cottage sold & there she met Mr. Sandles
who fraudently induced her to execute a transfer deed of the cottage to him on the pretence
that the documents were necessary for the sake of the property. He then dishonestly disposed
of the property for his own benefit. It was held that firm was liable for the wrongful act
committed by the servant.

(C) Mistake by Servant – In Poland Vs Parror & Sons, the carter in employment of the
defendants saw the plaintiff walking by the side of the defendants cart with his hand on sugar
bags which were being carried by the cart. Honestly & bona fide believing that plaintiff was

40
pilfering the sugar, he gave him a cuff on the neck as a result of which the plaintiff fell & was
badly injured by the cart. The master was held liable.

(D) Where servant delegates his act to other – In Riketts Vs Thomas Tillig Ltd., the master
was held liable for the negligence of the driver who had permitted the conductor to drive an
omnibus which resulted the injury to the plaintiff.

But the following conditions can‘t be considered as in the course of an employment, therefore
master is not liable for such type of acts-

1. When mater expressly forbids his servants to do certain acts (Limpus Vs London General
Omnibus Co.) &
2. When servant acts totally outside the scope of employment (Beard Vs London General
Onmibus Co.)

3. Tortious Liability of State – Because tort is not a codified law, that‘s why
tortious liability of state arises from constitution of India.

4. Art 300 of Indian Constitution provides that – ―The government of India may
sue or be sued by the name of the union of India & government of a state may sue
or sued by the name of state‖.

5. Related cases– The 1st case in which the principle that the government is liable
for the tort of its servants in the course of transaction which any private person
can engage in‖ was laid down by Peacock C.J, of the Bombay High Court in
Penisular & Oriental navigation comp Vs Secretary of state for India (PONC
Case). Sir Peacock, C.J. for the 1st time drew a distinction between sovereign &
non-sovereign function of the government. According to him sovereign function
are those which government alone & none else is authorized to perform & which
can‘t be allowed to be perform by private persons, but if the nature of the act is
such that if it were committed by a private person, he would have been made
liable, then if the same is performed by the government, through their servants,
there is no reason why they should not be held liable.

6. In the State of Rajasthan Vs Vidhyawati (B.P. Sinha, J), it was held that ―it was
impossible by reason of the maxim―the king can do no wrong to sue the crown in
England. But the above maxim is not applicable in India, so government will be
liable for the torts committed by its servant.

7. In Kasturi Lal Vs State of UP, (Gajendergadkar, C.J.) SC held that where a

tortious act is committed by a public servant in discharge of statutory function

41
 which are preferable to the delegation of sovereign powers of the state the action
for damages for loss caused by such tortious act will not lie.

8. No Distinction between Sovereign & Non-Sovereign Acts – In N. Nagendra

Roa Vs State of Andhra Pradesh, it was held that in the modern era, barring
function such as administration of justice, maintenance of law & order and
repression of crime etc, which are among the primary and in alienable function of
a constitutional government, the state can‘t claim any immunity. The doctrine of
sovereign immunity has been outdated now.

9. In Rudal Shah Vs State of Bihar, the court for the 1st time held that state or it‘s
authorities who violate any person‘s right to life & liberty as envisaged by Art 21
of the constitution, in course of discharge of official duties can‘t claim immunity
of sovereign functions in their defence.

10. In Chariman Railway Board Vs Chandrima Das, it was held that since art 21 of
the constitution includes both Indian & foreigners, so state can‘t claim immunity
of sovereign functions in the matter where tort is committed against the
foreigners.

Tort Feasors:
A person who commits a wrongful act is known as a tort feasor. When two or more persons
are involved in a wrongful act they may be independent tort feasor or joint tort feasor.

Independent tort feasor – When two or more person does a wrongful act independently of
one another which result in damage or injury to the plaintiff they are said to be independent
tort feasors & they bear liability severally. E.g. – Two motor cyclist coming from two
different dash against each other due to rash & negligent driving & thereby cause injury to
the plaintiff, they will called independent tort feasor because though their act was similar but
there was no prior meeting of mind.

Joint tort feasors -When a tort is committed by more than one tort feasor in furtherance of
a common object they are known as joint tort feasor. The term includes not only those who
have actually participated in the tortious act, but also those who have helped, guided or
abetted the tortious act. e.g. – In the above example if the two cyclist decided to race & in an
attempt to overtake one another collide thereby injuring the plaintiff they will be joint tort
feasor because the wrongful act has resulted in furtherance of a common design, that is
racing, to which they had agreed.

Liability of joint tort feasor – Prior to the passing of law reform married women & tort
feasor act 1935-

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(1) In case where there are more than one joint tort feasor, if the plaintiff had filed suit
against only one or some of them, he was debarred from bringing successive action against
the remainders i.e. those who were not sued in the first instance. But after the enactment of
the above act joint tort feasor are considered to be liable jointly & severally. Sec 6 of the
above Act provided that – judgment recovered against any tort feasor liable in respect of the
damage shall not be a bar to an action against other tort feasor who would, if sued have been
liable as joint tort feasor in respect of the same damage.

(2) If the plaintiff has recovered the full amount of damage from any of the joint tort feasor,
then he was not entitled to contribution by other wrongdoers. In other words no action for
contribution was maintainable by one wrongdoer against the other even through one who
sought contribution would have to pay the full amount of damages. This rule was for the first
time laid down in Merry weather Vs Nixan & hence it is known as Merry Weather Vs Nixen
rule or the principle of non-contribution among tort feasor. But Act of 1935 abolished the
above rule & provided that a tort feasor may recover contribution from any other tort feasor
who is, or who if sued would have been liable in respect of the same damages whether as
joint tort feasor or otherwise.

Assault – The unlawful laying of hands on another or an attempt to do corporal hurt to

another, coupled with ability & intention to do the act is called Assault.

Acc to Dr. Winfield – ―An Assault is an act of the defendant which causes in the mind of the
plaintiff reasonable apprehension of the infliction of a battery on him by the defendant‖

Thus the main test in assault is to create a reasonable apprehension in the mind of the plaintiff
that defendant is about to use force or attempting to use force against him, whether it causes
any harm or not.

For example - Pointing an unloaded gun against a person who does not know that it is
unloaded is an act of assault, but mere verbal threat is no assault, nor is a threat consisting if
gestures, unless there is an apprehension of immediate intension as also the capability of the
person making such gesture to cause bodily harm.

(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to
believe that A is about to strike Z. A has committed an assault.
(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely
that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has
committed an assault upon Z.

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Battery – The wrong of battery consists in intentional application of force to another person
without any lawful justification.

Essentials of Battery – Essentials of Battery

Use of force Intentionally & without lawful justification

1. Use of force – Even through the force used is very trivial & does not cause any harm, the
wrong is still constituted. Physical hurt need not be there. Least touching of another in
anger is a battery. The force may be used even without a bodily contact with the
aggression. Use of a stick, bullet or any other misible or throwing of water or spitting in a
man‘s face or making a person fall by pulling his chair are examples of use of force.
2. Intentionally & without lawful justification – It is essential that the use of force should
be intentional & without any lawful justification. If two or more persons meet in a narrow
passage & without any violence or design of harm, the one touches the other gently, it
will be no battery. But if other to force his way in a rude or inordinate manner it will be a
battery.

Difference between Assault & Battery -

1. Nature – Assault is prior to battery i.e. when assault is actually acted upon it converts into
the tort of battery.

2. Use of force – Reasonable apprehension of the use of force is not an essential requirement
of assault while the same is necessary in case of battery.

3. Grievous – Battery is more grievous than assault.

4. Scope – Battery always includes assault in itself but it‘s vice versa is not true.

Problem – If „X‟ throws water on „A‟ in anger. Discuss the liabilities of „X‟ if (a) water
fall upon „A‟ (b) water not fall upon „A‟

Solution – This problem is related to the tort named battery. When a person intentionally
uses a force without any lawful justification committed battery In the above problem if water
fall on A it will constitute battery but if water does not fall upon ‗A‘ then it is said to be
attempt to battery.

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Problem – A points loaded revolver from the back side of a person „B‟ with full gesture
to shoot him. State which tort is committed?

Solution – If ‗B‘ relies the reasonable apprehension of battery on him then here ‗A‘ commits
assault and if that person does not get apprehension of battery then no tort has been
committed by ‗A‘

Trespass – Any interference with the possession of land without lawful justification will
constitute a tort of trespass.

Essentials -

1. Plaintiff must be in exclusive possession of the land;

2. Defendant‘s entry into the land or remaining there for however short time;
3. Such entry should be without any lawful justification.

Trespass ab-initio – When a person enters certain premises under the authority of some law
and after having entered there, abuses that authority by committing some wrongful act there,
he will be considered to be a trespasser ab-initio to that property. Even though he had
originally lawfully entered there, the flaw considers him to be a trespasser ab-initio and
presumes that he had entered there for that wrongful purpose. It is necessary that the person
to be made liable as trespasser ab-initio must do some positive wrongful act (misfeasance)
rather than a mere omission to do his duty (non-feasance). Thus, refusing to pay for the
refreshment in an inn does not make the visitor a trespasser ab-initio as non-payment is a
mere act of non-feasance which is not enough for a trespass ab-initio.
Refer case – The Six Carpenter‘s case.

Nuisance

The origin of the tort of nuisance is to be found in the French word nuire & latin term nocere
which means to hurt or to annoy. Nuisance is of two kinds –

1. Public Nuisance; 2. Private Nuisance.

Public Nuisance is a crime while private nuisance is a civil wrong.

Acc to Dr. Winfield – ―Nuisance as a tort means a lawful interference with a person‘s use of
enjoyment of land, or some right over, or in connection with it. The interference may be
made in different ways e.g. – noise, vibration, heat, smoke, smell, fumes, water, gas,
electricity, excavation or disease providing germs.‖

Essentials of Nuisance - In an action of nuisance, the plaintiff has to prove against the
defendant at the following things –

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1. Unlawful interference or restriction,
2. Interference with the use or enjoyment of land,
3. Damage.

In Ushaben Vs Bagya Laxmi Chitra Mandir, it has been held that exhibition of the film. ―Jai
Santoshi Maa‖ is not nuisance merely because the plaintiff alleges that the religious feelings
are hurt as goddesses Saraswati, Laxmi & Parvati are depicted as jealous & are ridiculed. She
is free not to see the movie again.

Exception (Defences) – A defendant in an action for nuisance may take up the following
defences–

1. Prescription i.e. Long & continuous (Min 20 Yr) use.

2. Grant
3. Statutory Authority
4. Unintentional work
5. Plaintiff himself is a sensitive person

But the following defences are not available in any action for nuisance-

1. Exercise due care to prevent the nuisance.

2. Nuisance was for public good.
3. Plaintiff coming to the nuisance
4. Contribution of other‘s act to aggravate nuisance.

Refer case - Hollywood Silver Fox Case

Difference between Nuisance and Trespass -

1. Nature – If the interference is direct, the wrong is trespass while if it is consequential it

amounts to nuisance. E.g. – Planting a tree on another‘s land is trespass but when a
person plants a tree over his own but the roots or branches project into or over the land of
another person that is nuisance.
2. Scope – Trespass can be done with the help of some tangible object while nuisance can
be done with the help of intangible object like smell, fumes, vibrations etc.
3. Actionable Perse – Trespass is actionable perse, so no need to prove special damages
while nuisance is not.

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Defenses which apply throughout the law of Tort

In Tortious liability, the defendant can take the following defences & avoid his liability –

Defences available to the defendant

Act of God Mistake Legal Authority

(Vis Major) Triffle acts Contribute Negligence
Private Defence
Inevitable Accident Volenti Non fit injuria

Plaintiff himself a wrongdoer Necessity

(Ex turpi causa non oritur actio)

(1) Act of God (Vis Major) – Act of God is also recognized as one of the best defences to
liability in tort. This defences is also available against rule of strict liability act of God
like rain, storm, tides, volcanic eruption, means an act or etc. Escape caused directly by
natural cause without human interventions & is so unexpected that no human foresight or
skill could reasonably be executed to anticipate it.

Essential Elements - Following are the 2 essential elements of this defence –

1. There must be operation of natural forces, &

2. The incident must be extraordinary & not which could be anticipated & reasonably
guarded.

In Nicholas Vs Marshland an artificial lake was created on the plaintiff land due to storage
of rain water coming from a natural stream. Once there was an extraordinary heavy rain,
which could never have been reasonably anticipated, as result of which the embankment of
the lake burst out & water began to overflow on the plaintiff land. The flow of water carried
away four bridges of the plaintiff. Defendant was not held liable as the loss was caused by the
act of God.

(2) Inevitable Accident – By inevitable accident we mean accident which can‘t be avoided
by any such precaution as a reasonable man, doing such act then & there, could be
expected to take. In other words inevitable accident is those incidents which a person of
ordinary prudence can‘t avoid in spite of all reasonable care on his part in the
circumstances in which they occur.

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Essential Elements - Following are the 2 essential elements of this defence –

1. A wrong were not intended by the defendant;

2. The wrong could not have been foreseen & avoided by the exercise of reasonable care &
skill.

In Stanley Vs Powell during pheasant shooting the defendant fired at a pheasant, the shot
from his gun glanced off an oak tree thereby injuring the plaintiff. It was held that the injury
was accident & therefore defendant was not liable.

Difference between Act of God & Inevitable Accident - Although both are considered as a
defence in tort though the following are the distinction between the two –

1. Nature – Those which are caused by the elementary forces of nature which are not in any
way connected with the agency of man or other cause, are act of God while those which
take place, wholly or partly due to agency of man, independent of the agency of natural
forces are inevitable accidents.
2. Scope – Act of God is the genus whereas inevitable accident, the specie of it.
3. Strict Liability – The act of God is an exception to the rule of strict liability but it is not
so in case of inevitable accident.

(3) Triffle Act (Acts causing slight harm) – The law does not take account of trifles or an
ordinary damage to a person caused by an act of a person. This is based on the maxim De
minim is non curat lex which means that law does not concern it with triffles. Such acts
are not wrong under the law of torts against which an ordinary prudent person will never
complain. Every man every time does certain acts which cause some harm to others such
as dashing a person while walking on public road, riding the bus, falling of dust or water
caused by fast running of car etc.
(4) Plantiff himself a wrongdoer (Ex turpi causa non oritur action) – The damages
sustained by the plaintiff must be a legal damage, an injuria. If the damage is in any
manner tainted with immorality, no cause of action can be maintained – Ex turpi causa
non oritur action. This maxim means that an action does not arise from an immoral cause.
Hegarty Vs Shine, is infected by D, her paramour, with a venereal disease, the existence
of which was concealed by D, P is not entitled to sue D, because an action does not arise
from an immoral cause.

Problem – „A‟ digs a trench on his land near his boundary wall. A thief jumps over the
wall at night landing himself in the trench and gets hurt. Discuss the liability of „A‟
under the law of torts.

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Solution - This problem is related to the maxim “Ex turpi causa non oritur actio” which
means that an action does not arise from an immoral cause. If the damage is in any manner
tainted with immorality, no cause of action can be maintained. So in this problem there in no
any violation of legal right of the thief because theft is a crime. Therefore, ‗A‘ is not liable for
any torts.

(5) Contribute Negligence – when the harm is suffered by the plaintiff not solely due to the
negligence of the defendant but also due to the negligence of the plaintiff, the plaintiff is said
to be guilty of contribute negligence.

(Contributory Negligence)

(Doctrine of Last Opportunity) (Doctrine of Apportionment)

(Davies Vs Mann) (Rular Transport Service Vs
Bejlum Biwi)

Doctrine of last opportunity rule – According to this rule – when an accident happens
through the combined negligence of two persons, he alone is responsible to the other who had
the last opportunity of avoiding the accident by reasonable care. The above rule is laid down
in Davies Vs Mann also known as Donkey case. In this case the plaintiff left his donkey
loose on the side of a highway with its fore felt tied. The defendant was driving his horse
wagon negligently in high speed which hit the donkey & it was killed. The court found that
the defendant‘s negligence was the proximate & immediate cause as he would have easily
reduced the speed of his wagon seeing the donkey grazing near the highway with its fore felt
fettered. Through the plaintiff was also negligence in leaving his donkey with its fore felt tied
up near the highway but notwithstanding that he was held entitled to recover because the
defendant had the last opportunity to avoid the accident.

Doctrine of Apportionment – The rule of last opportunity was clearly illogical because
according to it the party which had the last opportunity to avoid the accident was solely
responsible for the damage irrespective of the fault of the plaintiff. Therefore in order to
remove the illogicality of last opportunity rule an act caused the law reform (Contributory
Negligence) Act 1945 was passed in England which provides that where any person suffers
damage as the result partly of his own fault & partly of the fault of any person or persons, a
claim in respect of that damage should not be defeated by reason of the fault of the person

49
suffered the damage, but the damage recoverable in respect thereof shall be reduced to such
extent as the court thinks just & equitable having regard to the claimant‘s contribution in the
responsibility for the damage.

In Vidhya Devi Vs MPSRTC, a collision took place between a bus which was going on the
main road & a motor cyclist who came on the main road from a lane & without looking on
either side dashed against the running bus & met with an accident resulting in his death. The
court found that the bus driver was also negligent while negotiating the road crossing but the
negligence of the motor cyclist was far more than that of bus driver for causing the accident.
The court apportioned their respective negligence as 2/3 & 1/3 in respect of motor cyclist &
the bus driver respectively.

Exception to the Doctrine of contributory Negligence - In the following circumstances the

principle of contributory negligence is not applicable despite the plaintiff‘s involvement in
the defendant‘s negligence act-

Exception

Contributory Negligence Dilemma Cases Rescue Cases Doctrine of

Identification
of Children (Doctrine of (Haynes Vs Harwood) (Oliver Vs
Birmingham &
(Yachuk Vs Oliver Alternative Danger) Maitland
Omnibus Co.)
Blair Co. Ltd.) (Jones Vs Boyce)

1. Contributory Negligence of Children – The doctrine has no application where the

plaintiff is a child because he can‘t be expected to take as much care & caution about
himself as an adult person can take of himself (Yachuk Vs Oliver Blair Co. Ltd.)
2. Dilemma Cases (Doctrine of Alternative Danger) – The doctrine of alternative danger
may be invoked where due to the negligent act of the defendant. The plaintiff is placed in
a situation to place him in another danger in order to avert the imminent present danger.
In such cases, the defendant‘s plea that the plaintiff himself invited the danger due to his
own negligence, will not be accepted.(Jones Vs Boyce)
3. Rescue Cases – Where any act of negligence of the defendant poses an imminent danger
for someone & the plaintiff tries to avoid the accident or mishap by putting himself in
danger taking the risk of injury, it will not be considered as his contributory negligence
(Haynes Vs Harwood)

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4. Doctrine of Identification – At one time law permitted the defence of contributory
negligence not only when the plaintiff himself was negligent but also when there was
negligence on the part of a plaintiff‘s servant or agent, provided that the ,master himself
would have been liable for such negligence if some harm had ensured out of that
negligence. This was known as the doctrine of identification which was propounded in
Througood Vs Bryan & expressly overruled by the house of lords in Bernima mills Vs
Armstrong & finally in Oliver Vs Birmingham & Maitland Omnibus Co.

Problem – „A‟ of six years age was standing near a footpath when he was knocked down
by a lorry. Can „A‟ be held liable for contributory negligence?

Solution – The above problem is related to the contributory negligence of a child. We cannot
take the contributory negligence of a mature person and a child similar. We cannot be except
from a child be more careful like a mature person. So, to decide whether a person is liable for
this or not we must take age in mind. The facts of the above problem are related to the facts
of case Shrinivasan Vs K.M. parishina Murthi. In this case it was held that child of the age
cannot be so careful on road. Therefore, plaintiff (child) is not liable for contributory
negligence.

Volenti Non Fit Injuria

Consent of the plaintiff –Consent of the plaintiff is a good defence in law of tort. This has
been expressed by the Latin maxim volenti non fit injuria, meaning thereby that where the
plaintiff has consented to a wrongful act, he shall have no right to sue the defendant. E.g – if I
consent to undergo an operation by the surgeon and get injured then I cannot sue the surgeon
because I had given express consent for it. Similarly if a man enters my house on my
invitation then I can‘t take an action for trespass against him.

Conditions for the application of maxim Volenti non fit injuria - Following conditions for
the application of the above maxim –

Consent of the plaintiff

(Volenti non fit injuria)

Consent must be free Consent may be express or implied Act must be lawful

1. Consent must be free – The defence of volenti non fit injuria is available only when it is
shown that the consent given by plaintiff was free, that is without any fraud, compulsion
or coercion.

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2. Consent may be express or implied – Consent in oral or written form is called express
while consent by conduct is called implied one. The defence of volenti can also be
available in implied consent of the plaintiff.

In Hall Vs Brooklands Auto Racing Clubs, the plaintiff was a spectator in the defendant‘s
race club. During the race, there was a collision between two cars & as a result one of the
cars was thrown on spectators & injured the plaintiff. It was held that the defendant was not
liable for the injury caused to the plaintiff as he had impliedly consented to suffer the damage
which was incidental to such sports.

3. Act must be lawful – The act to which the plaintiff gives his consent & undertakes to
suffer the risk must be lawful & the method of doing it must also be lawful.

Maxim is volenti non fit injuria, not scienti fit injuria – The maxim is not scienti non fit
injuria (knowledge implies consent) but Volenti non fit injuria. Mere knowledge does not
imply consent to take risk.

In the case of Damn Vs Hamilton, the distinction between ―sciens‖ (knowledge of risk) &
―Volens‖ (Consent to undertake risk) has been pointed very clearly. In this the plaintiff ―a
lady‖ Knowing that the driver of the car was drunk & the possibility of accident was more,
decided to travel by his car. Due to the driver‘s negligence an accident took place & the
plaintiff was seriously injured. It was held that the plaintiff was entitled to recover damage
against the representative of the driver who had died in the accident. Although before riding
the car the plaintiff knew that there might be an accident in the state of driver‘s intoxication,
it did not mean that she had consented to the risk arising out of the negligence of the driver.

Exception to the Maxim – In the following cases the maxim volenti non fit injuria does not
apply –

1. Where consent was given under the compulsion (Smith Vs Bekar)

2. Where scienti is not volenti (Dann Vs Hamilton)
3. Rescue cases (Haynes Vs Harwood)

Distinction between Volenti non fit injuria & Contributory negligence - The main points
of difference between the two are as follows –

1. Nature – Volenti non fit injuria that is consent of the plaintiff is a complete defence to
absolve the defendants from liability while contributory negligence of the plaintiff
reduced the liability of the defendant in proportion.
2. Scope – In volenti non fit injuria, although the plaintiff consents to the risk or danger but
as the same time takes due care for his safety but contributory negligence implies of both,
defendant & the plaintiff.

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3. Rule of last opportunity – Rule of last opportunity is not applicable in volenti non fit
injuria but applicable in contributory negligence.

Except above all the defendant can also take the plea of the following –

7. Private Defence i.e. defence of person & property; 8.Necessity; 9.Mistake; 10. Statutory
Authority

Quantum of Damages:

The word ―tort‖ in law means a wrong or injury, which has certain characters, the most
important of which is that is it redressable in an action for damages at the instance of the
person wronged or injured. We can consider assault, libel, trespass and nuisance as few
examples. A tort, precisely, is the violation of a right of a person or a breach of duty of
another towards him/her.

In tort law, a remedy in the form of monetary compensation is given to the aggrieved party.
Damages, in a legal sense, is the sum of money, the law impose for a breach of duty or
violation of some right. More appropriately, damages are money claimed by, or ordered to be
paid to, a person as compensation for loss or injury[1]. Generally there are two categories of
damages:

a) Compensatory

b) Punitive

The term ―damages‖ typically includes both categories, but the term ―actual damages‖ is
synonymous with compensatory damages and excludes punitive damages. Compensatory
damages are intended to relieve the injured party for his loss or injury.

There are other modifying terms placed in front of the word damages like ―liquidated
damages‖ (contractually established damages) and ―nominal damages‖ (where the court
awards a nominal amount).

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The aim of tortious damages is to put the claimant back into the position he/she was in, pre-
tort. The claimant will, therefore, be able to recover reliance loss. Damages in tort are
subjected to the principles of remoteness, causation ad mitigation. The basic principle is that
it should be tried that the claimant be fully compensated for loss as far as this can be done by
an award of money.

Efficient damages awards are critical to the optimal functioning of the tort system. Though a
number of rules exist for damage calculation, none are ―the‖ rule in every situation. Optimal
damage award depends on:

a) The nature of the injury

b) The relationship of the parties and the type of risk

c) The liability rule

d) Whether liability is individual or vicarious

e) Any existing imperfections

DAMAGES IN TORT

Damages are the most important remedy which the plaintiff can avail of after the tort is
committed. They are of various kinds:

Nominal damages:

Nominal damages awarded to an individual in an action where the person has not suffered
any substantial injury or loss for which he or she must be compensated.

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This kind of damages reflects a legal recognition that a plaintiff's rights have been violated
through a defendant's breach of duty or wrongful conduct. The amount awarded is ordinarily
a trifling sum, such as a dollar, which varies according to the circumstances of each case. In
certain jurisdictions, the amount of the award might include the costs of the lawsuit.

In general, nominal damages may be recovered by a plaintiff who is successful in

establishing that he or she has suffered a loss or injury as a result of the defendant's wrongful
conduct but is unable to adequately set forth proof of the nature and extent of the injury.

For example, an injured plaintiff who proves that a defendant's actions caused the injury but
fails to submit medical records to show the extent of the injury may be awarded only nominal
damages.

The amount awarded is generally a small, symbolic sum, although in some jurisdictions it
may equal the costs of bringing the lawsuit. The most famous case of nominal damages was
when Prime Minister Winston Churchill was awarded a shilling (about 25 cents) in a libel
lawsuit he had brought against author Louis Adamic for writing that Churchill had been
drunk during a dinner at the White House. The Prime Minister was vindicated, but the jury
could not find that his towering reputation had been damaged.

In another case of Constantine v. Imperial London Hotels Ltd., a West Indian cricketer was
refused accommodation at a London hotel because of his nationality. He stayed at another
hotel arranged by the defendants and he suffered no loss. It was held by Birkett, J. that
nominal damages of five guineas be awarded in respect of defendants‘ breach of their
common law duty as innkeepers to provide accommodation for any traveler.

When a wrong is actionable per se, as for example, in the case of trespass, damage to the
plaintiff is presumed and an action lies even though in fact the plaintiff may not have suffered
any loss[3]. To justify the concept the nominal damages, Holt, C. J. said, ―If a man another
cuff on the ear, though it costs him nothing, not so much as a little diachylon, yet he shall

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have his action against another for riding over his ground, though it did him no damage; for it
is an invasion of his property and the other has no right to come here‖.[4]

Contemptuous Damages:

Contemptuous damages are awarded when the level of harm caused to the claimant is low
and the court feels that the claimant was wrong to bring a claim. They are the mirror image of
nominal damages, in that the successful plaintiff is made to pay damages for bringing the
lawsuit.

Let us consider the example: Green and Brown are next-door neighbors who have never
gotten along. Green‘s dog wanders onto Brown‘s property one day and relieves himself.
Brown steps in the dog‘s faeces, is disgusted, and sues Green for trespass and for failing to
control his dog. The court finds that Brown was technically legally correct and thus he must
win the lawsuit, but that the lawsuit was rather ridiculous and wasted everybody‘s time. The
court will award damages in the amount of the smallest monetary amount, to make this
statement to Brown.

Contemptuous damages are a derisory amount awarded to show disapproval at the bringing
of a claim. This is where a court awards a very small amount of damages to indicate the
court‘s disapproval of the court action having been brought at all. This might be relevant in a
defamation action, where the court considers that the person bringing the action already has a
poor reputation, and that the false statement made about the person is unlikely to damage
their reputation much further.

It is to be distinguished from nominal damages because nominal damages are awarded when
the plaintiff has suffered no loss, whereas contemptuous damages are awarded when the
plaintiff has suffered some loss but he does not deserve to be fully compensated.

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Compensatory Damages:

Compensatory damages are recovered in payment for actual injury, which does not include
punitive damages (to be discussed later). It is a sum of money awarded in a civil action by a
court to indemnify a person for the particular loss, detriment or injury suffered as a result of
the unlawful conduct of another. These damages provide a plaintiff with the monetary
amount necessary to replace what was lost and nothing more.

One of the more heated issues facing the U.S. legal system during the past quarter century has
been the call for reform of states‘ Tort Laws. Some Health Care providers and other
organizations have sought to limit the amount of damages a plaintiff can receive for pain and
suffering because they claim that large jury awards in Medical Malpractice cases cause
premiums on medical insurance policies to rise, thus raising the overall costs of medical
services. California took the lead in addressing concerns with rising medical costs when it
enacted the Medical Injury Compensation Reform Act, California Civil Code § 3333.2
(1997). The act limits the recoverable amount for non-economic loss, such as pain and
suffering, to $250,000 in actions based on professional Negligence against certain health care
providers. Although the statute has been the subject of numerous court challenges, it remains
the primary example of a state's efforts to curb medical costs through tort reform.

Other states have sought to follow California's lead, though efforts to limit compensatory
damages have met with considerable resistance. Opponents claim that because these
limitations greatly restrict the ability of juries and courts to analyze the true damage that
plaintiffs have suffered, defendants avoid paying an amount equal to the harm inflicted upon
the plaintiffs. Medical organizations, such as the American Medical Association continue to
advocate for limitations on damages, however, and they have sought to encourage state
legislatures to enact such provisions.

Aggravated Damages:

Damages awarded by a court to reflect the exceptional harm done to a plaintiff of a tort
action. When insult or injury to the plaintiff‘s feelings has been caused, the court may take
into account the motive for the wrong and award an increased amount of damages.

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―Aggravated damages are an award, or an augmentation of an award, of compensatory
damages for non-pecuniary losses. They are designed to compensate the plaintiff, and they
are measured by the plaintiff's suffering. Such intangible elements as pain, anguish, grief,
humiliation, wounded pride, damaged self-confidence or self-esteem, loss of faith in friends
or colleagues, and similar matters that are caused by the conduct of the defendant; that are of
the type that the defendant should reasonably have foreseen in tort cases or had in
contemplation in contract cases; that cannot be said to be fully compensated for in an award
for pecuniary losses; and that are sufficiently significant in depth, or duration, or both, that
they represent a significant influence on the plaintiff's life, can properly be the basis for the
making of an award for non-pecuniary losses or for the augmentation of such an award.‖.

Aggravated damages are an augmentation of general damages to compensate for aggravated

injury.

Punitive Damages:

Punitive damages are triggered by conduct that may be described by such epithets as high-
handed, malicious, vindictive, and oppressive. They are awarded where the court feels that
the award of compensatory damages will not achieve sufficient deterrence and that the
defendant's actions must be further punished. Punitive damages bear no relation to what the
plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff,
but rather to punish the defendant. ...They are in the nature of a fine which is meant to act as a
deterrent to the defendant and to others from acting in this manner. It is important to
emphasize that punitive damages should only be awarded in those circumstances where the
combined award of general and aggravated damages would be insufficient to achieve the goal
of punishment and deterrence.

As explained by McIntyre. J., "Punitive damages, as the name would indicate, are designed to
punish. In this, they constitute an exception to the general common law rule that damages are
designed to compensate the injured, not to punish the wrongdoer‖.

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