CLAT LEGAL

LAW OF TORTS
INTRODUCTION
• Unlike the other chapters of this section, there is no bare act for the law of
torts. It is a collection of uncodified legal rules and conducts framed by
judicial precedents. Law of Torts is a part of the common law system
which is not based on statutes.
• Relevant topics for CLAT
1.General Defences
2.Negligence
3.Defamation
4.Trespass
5.Nuisance
6.Vicarious Liability
7.Strict and Absolute Liability
WHAT IS THE LAW OF TORTS?
• A tort can be defined as a wrong independent of contract, giving rise
to a civil remedy, for which compensation can be recovered.
• The etymological meaning of the word tort is twisted. It originated
from the Latin term tortum.
• According to Salmond, “A tort is a civil wrong for which the remedy
is a common law action for unliquidated damages, and which is not
exclusively the breach of a contract or breach of trust or other merely
equitable obligation.”
• Winfield on the other hand opined, “ Tortuous liability arises from
the breach of duty primarily fixed by law, this duty is towards
persons generally and its breach is redressable by an action for
unliquidated damages”
CONTINUED…
• Tort is a Civil / Legal Wrong. Tort Law is one of the important branches of
Civil Law. The word Tort is derived from a Latin word 'Tortus' which
means 'twisted' or 'cooked act’.
• In English it means, 'wrong'. The Expression 'Tort' is of French Origin.
• The term 'Tort' means a wrongful act committed by a person, causing
injury or damage to another, thereby the injured institutes (files) an action
in Civil Court for a remedy viz., unliquidated damages or injunction or
restitution of property or other available relief.
• Unliquidated damages mean the amount of damages to be fixed or
determined by the Court. The 'Law of Torts' owes its origin to the Common
Law of England. It is well developed in the UK, USA and other advanced
Countries.
• In India, Law of Torts is non codified, like other branches of law eg: Indian
Contract Act, 1872 and Indian Penal Code, 1860. It is still in the process of
development. A tort can take place either by commission of an act or by
omission of an act.
ESSENTIAL ELEMENTS OF TORTS
 What is a Wrongful Act?
• A wrongful act can be either morally wrong or legally wrong and can also be both at the
same time.
• A legal wrongful act is one which affects one’s legal right, the wrongful act must be one
recognized by law, the act must be in violation of the law to be a legal wrongful act.
• An act which seems Prima facie (based on the first impression) innocent may also end up
infringing somebody else’s legal right, innuendo (Where a statement is said by an
individual which may be Prima facie innocent but may also have a secondary meaning
which can harm the reputation of another in the eyes of the public or the person who
comes to know of such information) is an example of this.
• Liability for a tort arises when the wrongful act being complained of amounts to an
infringement of a legal private right or a breach or violation of a legal duty. i.e. If a person
is prevented from voting by another, even if the candidate he was going to vote for, wins,
his legal right to vote has been violated.
• For example, if someone whose religion does not allow him/her to eat non-vegetarian
food, still eats it then he/she will be morally wrong but not legally wrong. And if a person
whose religion doesn’t allow him or her to eat non-vegetarian and he or she strictly
follows that religion is forcefully fed by someone then it is a legal wrong on the part of the
person forcing the other one to eat that food which he or she does not want to eat.
What is a duty imposed by law?
• A duty of care is one which is imposed on every individual and
requires a standard of reasonable care that he could see as being
harmful towards others. Hence, a duty imposed by law is a duty
which is legally enforceable in the Indian courts.
What is Injury Caused by such
damage?
• The act or the omission must result in legal damage or injury i.e.
violation of a legal right vested in the plaintiff. This means that the
act or omission must cause a damage that is recognized by law as
wrongful.
Damage Damages
• Damage
The loss or injuryvs Damages
sustained The reparation given as a result of Damage

Is the cause of action Is the end result of the cause of action

Damages cannot exist without the existence of sustained

Can be sustained without a claim for damages
damage

Damages are levied on individuals who are the direct or

Loss is directed towards property or person
indirect cause of injury

Damage could be sustained by a legal entity or inanimate

Damages are always directed towards legal entities
things
 INJURIA SINE DAMNO
• Injuria sine damno is a violation of a legal right without causing any
harm, loss or damage to the plaintiff and whenever any legal right is
infringed, the person in whom the right is vested is entitled to bring an
action.
• Every person has an absolute right to his property, to the immunity of
his person, and to his liberty & infringement of this right is actionable
per se.
• A person against whom the legal right has been infringed has a cause
of action such that even a violation of any legal right knowingly brings
the cause of action.
• The law even gives the liberty that if a person merely has a threat of
infringement of a legal right even without the injury being completed,
the person whose right has been threatened can bring a suit under the
provisions of Specific Relief Act under Declaration and injunction.
• For Example:- If a person is wrongfully detained against his will, he
will have a claim for substantial damages for wrongful imprisonment
even if no consequential loss was suffered pon the detention.
 INJURIA SINE DAMNO (CONTINUED..)
• As was cited in the case of Ashby Vs. White (1703) wherein the
plaintiff was a qualified voter at the parliamentary elections
which were held at that point of time.
• The defendant, a returning officer wrongfully refused to take the
plaintiff’s vote.
• The plaintiff suffered no damage since the candidate which he
wished to vote already won the elections but still, the defendants
were held liable. It was concluded that damage is not merely
pecuniary but injury imports a damage, so when a man is
hindered of his rights he is entitled to remedies.
DAMNUM SINE INJURIA
• Damnum sine Injuria is a legal maxim which refers to as damages
without injury or damages in which there is no infringement of any
legal right which are vested with the plaintiff.
• Since no legal right has been infringed so no action lies in the cases
of damnum sine injuria.
• The general principle on which this maxim is based upon is that if
one exercises his common or ordinary rights, within reasonable
limits, and without infringing other’s legal right; such an exercise
does not give rise to an action in tort in favour of that other person.
• Damages can be in any form either in the form of any substantial
harm or loss suffered from respect to the money, comfort, health,
etc.
DAMNUM SINE INJURIA ( CONTINUED..)
• In the case of Mayor & Co. of Bradford vs. Pickles (1895) in which the
corporation of Bradford filed a suit against the defendant alleging that the act
of defendant by digging a well in the adjoining land owned by the defendant
has cut the underground supply of water in the corporation’s well hence
causing them monetary losses since there was no adequate supply of water to
discharge for the people living under the jurisdiction of the corporation. It
was held that the defendant is not liable since they had not violated any legal
right of the plaintiff.
• In another case of Gloucester Grammar School (1410) in which a
schoolmaster, set-up a rival school to that of the plaintiff and since because
of the competition the plaintiff had to reduce their fees from 40 pence to 12
pence per quarter. Thus claimed for compensation from the defendants for
the losses suffered. It was held that the plaintiff had no remedy for the losses
suffered, since the act though morally wrong has not violated any legal right
of the plaintiff.
Principle: Causing damage to another person is not actionable in law unless there is also
caused an injury to the plaintiff.

Facts: Career Puncher was a popular tuition center. However, a new coaching center
named Proper Coaching opened right next to Career Puncher. As a result, Career
Puncher lost out a lot of its students. This also resulted in monetary losses and
subsequently it had to be shut down. Career Puncher later filed a suit against Proper
Coaching for loss of earnings.

a. Career Puncher will succeed because it has incurred monetary damage.

b. Career Puncher will not succeed because no legal right has been infringed.
c. Career Puncher will succeed because its owners’ legal right to livelihood has been
curtailed.
d. None of the above.
COROLLARY: UBI JUS IBI REMEDIUM
• It is a Latin maxim which means that where there is a wrong, there
is a remedy. If any wrong is committed then the law provides a
remedy for that.
• The maxim can be phrased as that any person will not suffer a wrong
without a remedy, it means that once it is proved that the right was
breached then equity will provide a suitable remedy.
• This principle also underlines the fact that no wrong should be
allowed to go without any compensation if it can be redressed by a
court of law. The law presumes that there is no right without a
remedy; and if all remedies are gone to enforce a right, the right in
point of law ceases to exist.
• D.K. Basu v. State of West Bengal
• Ashby v. White
DIFFERENT LIABILITIES
• It might happen that a plaintiff may have a right co-existing
both in contract as well as tort law.
• For instance, if a doctor bound under a contract, commits
negligence, the plaintiff may have separate rights to sue under
the contract (for improper discharge of duties or breach of
contract) as well as under torts of professional negligence.
PRINCIPLE OF DOUBLE JEOPARDY
• The doctrine of double jeopardy is a legal defence that protects an accused/defendant from
being tried again for the same accusations and facts after a lawful acquittal or conviction.
Double jeopardy is a doctrine from the Indian Constitution, specifically Article 20(2), which
deals with and specifies the meaning of the double jeopardy doctrine.
• “No individual shall be arrested and punished for the same offence more than once,” the
Indian Constitution said in article 20(2)
• Grounds for applicability of the doctrine of double jeopardy
• In legal terms, jeopardy refers to the danger that defendants in criminal cases suffer, such as
jail time or penalties. In three situations, double jeopardy has been stated as a valid defence:
1. First and foremost, the individual must be charged with a crime. In the General Clauses Act
of 1897, the term ‘offence’ is defined. Any act or omission that is criminal under the law in
force at the time.
2. Before a court or a judicial tribunal, the investigation or proceeding must have occurred.
3. In the prior process, the person must have been arrested and punished.
4. The offence must be the same as the one for which he was previously convicted and
sentenced.
QUESTION 1
Mahmood Kaskar resided in the city of Mumbai and was long suspected of having committed several offenses,
including smuggling. Kaskar came across a police check-post on the road on 15 December 2019, and, afraid that the
police would find the contraband that he had hidden in the trunk of his car, he drove through the check-post instead of
stopping.

In doing so, he smashed his car through the barricades at the check-post, and a piece from the barricades flew a few feet
away and injured a policeman manning the check-post. Kaskar was later caught by the police, and charged with the
offense of obstructing justice, which the police claimed he did by crashing through the check-post. Kaskar was acquitted
of this charge since the police were not able to produce adequate evidence before the court. Some months later, the
police, bent on teaching Kaskar a lesson, filed charges of injuring a police officer on duty against Kaskar.

Question: When Kaskar was convicted, he filed an appeal claiming that the decision violated the protection against
double jeopardy in Article 20. Will Kaskar succeed?

(a)No, since the second charge filed against Kaskar was in relation to a different offense than the first one.

(b)Yes, since he had already been prosecuted for crashing through the barricades and could not be prosecuted for the
same actions again.

(c)Yes, since he had already been acquitted the first time charges were filed against him.

(d)No, since he was long suspected of having committed several offences.

QUESTION 2
Sometime after the two prosecutions mentioned in the previous question, the police manage to recover CCTV
footage from the area near the place where the police check-post was and filed fresh charges of obstructing justice
against Kaskar for crashing through the check-post. They claim that the CCTV footage would help them win the
case this time. Kaskar claims that this fresh, third trial, violates his protection against double jeopardy in Article
20 of the Constitution. Will he succeed?

(a)Yes, since Kaskar is a citizen of India and is protected under Article 20 of the Constitution.

(b)No, since the police were able to bring fresh evidence before the court in this new trial.

(c)Yes, since he had already been prosecuted for the offence of obstructing justice and was acquitted.

(d)No, since he was prosecuted but not punished for the same offence in the first trial.
QUESTION 3
Concerned at the increasing number of instances of rash driving in Mumbai, the legislature passes a
law on 12 January 2020, making rash driving a criminal offense punishable with three months’
imprisonment. The police, who are hell-bent on punishing Kaskar by now, file fresh charges and
initiate a fourth case against Kaskar, claiming that his act of driving through the police check-post
constituted rash driving. Kaskar now claims that this fourth trial violates the first clause of Article 20.
Will the police succeed in this fourth trial?

(a)Yes, since Kaskar had injured a policeman when he drove through the check-post.

(b)No, since driving through a check-post does not constitute rash driving.

(c)No, since rash driving was not an offence at the time Kaskar drove through the police check-post.

(d)Yes, since Kaskar had been prosecuted for different offences in the previous three trials.
ACTIO PERSONALIS MORITUR CUM PERSONA
Actio personalis moritur cum persona in bold and literal terms means ‘a personal right of action dies with
the person’.

Actio stands for ‘an act’ or ‘an action’

Personalis stands for ‘personal’
Moritur stands for ‘death’
Cum stands for ‘with’
Persona stands for ‘person’
In layman’s terms, a personal right and/or cause of action dies with the death of the person. Earlier, all
types of actions which specifically include actions for unliquidated damages, or we can say actions of
torts and contracts are terminated as soon as the person dies. Their duties, as well as remedies, are
terminated upon their death but since the laws of the Miscellaneous Provisions Act, 1934 were reformed,
it has been put out that, “On the death of any person, all causes of actions vested in him shall survive for
the benefit of his estate. Thus, all causes of actions in torts say for defamation and the claim for damages
for bereavement survived the deceased.”

Thus, we now know that the main rule of this maxim is that all duties and remedies die with the person
but defamation, attacking/ assaulting and personal damages are the three big exceptions of this legal
maxim.
 REASONABLE MAN
• The “reasonable person” is a hypothetical individual who approaches any
situation with the appropriate amount of caution and then sensibly takes action.
It is a standard created to provide courts and juries with an objective test that
can be used in deciding whether a person’s actions constitute negligence.
• This does not mean they must be perfect. Mistakes are made, and when it is an
error that is reasonable under the circumstances, a person may not be liable.
There are also unavoidable accidents in which injuries occur, or cases that are
impossible to tell what a person did in the critical moments. However, when it
is clear how a “reasonable person” would have behaved, and a defendant fails
to act according to that standard, they may be considered negligent in any kind
of personal injury case.
• For example, a driver who speeds through an unmarked intersection without
stopping did not behave in a reasonably prudent manner. A reasonably prudent
driver would have slowed and completely stopped, in an effort to avoid a
possible accident in this unsafe situation; as they would be aware that another
vehicle could be coming at any moment.
LIABILITY
• Each and every individual has a legal obligation towards the state.
E.G. Paying of Tax even though the government is not working
efficiently vs Removing your shoes before entering the temple.
The question then is Moral obligation v Legal Obligation.. What is
considered?
One is liable..
1. When there is wrongful action
2. When there is no justification for such an act.
Therefore, justification is that which makes you NOT LIABLE despite
your action being prime facie wrongful.
General Elements of Law of Torts
▪ Act or Omission- There should be a wrongful act in order to constitute tort. It
can be an act of omission or that of commission. They should not be beyond
human control.
▪ Voluntary or Involuntary- The wrongful act can be voluntary or involuntary.
▪ Intention, Motive, Negligence and Recklessness- The act may have an intention
or motive or may arise due to negligence or recklessness.
▪ Malice– Malice isn’t essential in all kinds of torts. It is essential in the following-
defamation, malicious prosecution, malicious damage to property, slander,etc.
▪ Malfeasance, Misfeasance, Nonfeasance- Malfeasance means commission of an
unlawful act. Misfeasance means performing a lawful act in a wrong manner.
Nonfeasance means failure to perform an act where there was an obligation to
perform it.
▪ Fault- A fault which violates the right of a person gives rise to tort.
TYPES OF WRONG
• Wrong
• Public wrong - Crime is a Public Wrong. These are acts that are
tried in Criminal Courts and are punishable under the Penal Law
(such as the Indian Penal Code, 1860 in India)
• Private wrong - Tort is a Private Wrong. These are acts against
an individual person or a person within a community and are
tried in Civil Courts.
Distinction between Torts and Crimes
Distinction between Torts and
Contracts
Tort vs Breach of Trust