CHAPTER 1

Law of Torts

Tort: Meaning and Definition

What is the meaning of tort?

In common parlance the tort is an injury or wrong independent of implied contract, as by assault,
libel, malicious prosecution, negligence, slander or trespass or seduction.

The term 'tort' is French in origin which is synonym to 'wrong' in English version. This word has
originated from the Latin word 'tortus' which means to twist and implies conduct which is tortious or
twisted. The Roman word 'delict' and Sanskrit word 'Jimha' depict same the meaning. The concept of
tort appears when a breach of some duty is caused which is independent of implied contract giving
rise to a civil cause of action and for which compensation can be claimed and a damage is
recoverable.

1. Definition of Tort

Many authors have defined the term 'tort' but so far, its definition is still in a growing stage and it
would be difficult to accept any single definition which could define tort in wholesome manner.
There are shortcomings in each of the definitions but we will try here to find those missing links and
bridging the gaps with our own suggestions.

A workable definition of tort may be as:-A civil wrong which is independent of implied contract for
which the appropriate remedy is an action for unliquidated damages.

Salmond and Heuston

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 the breach of a trust or other merely equitable
obligation.'1

Clerk and Lindsell

'A tort may be described as wrong independent of contract, for which the appropriate remedy is
common law action'.2

Sir Fredrick Pollock

'The law of torts in civil wrongs is a collective name for the rules governing many species of liability
which, although their subject-matter is wide and varied, have certain broad features in common, are
enforced by the same kind of legal process and are subject to similar exceptions'.3

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1. Law of Torts (1992), 20th Edn., pp. 14, 15.

2. Clerk & Lindsell, Torts, 8th Edn., p. 1.

3. Pollock, Law of Torts, 11th Edn., p. 15

Winfield and Jolowicz

Define Tort in the words of Winfield and Jolowicz.

'Tortious liability arises from the breach of duty primarily fixed by law; this duty is towards persons
generally and its breach is redressible by an action for unliquidated damages'.1

It would not be out of place to mention here that none of the above definition gives a wholesome
information on torts which can be accepted in its totality. However, the definition given by Winfield
has more substance compared to those of other authors and if we examine here some of its
shortcomings then certainly we can try for a definition near to perfection by adding some more teeth
to it.

Important points of Winfield definition are:

(a) duty primarily fixed by the law,

(b) duty is towards persons generally; and

(c) action for unliquidated damages.

(a) In tortious liability, the duty must be fixed by the law from the beginning and not by undergoing
an agreement between the parties. So, parties can neither create nor negotiate the tortious liability
by contract. Tort arises from the duty which has been fixed by the law and has been infringed by the
party. From the above definition it is clear that liability arises from the breach of duty by a person but
it has been seen that even though a person not committed a breach of duty himself, is held liable.
Vicarious liability cases fall under the category where a master is held liable for his servant's wrong.
In our country, it is the legal duty of every person who drives a vehicle to drive it carefully obeying
traffic rules and guidelines. For example A appoints B as his car driver and one day A asks B to fetch
his relative from railway station to A's residence. In course of performing his duty B travels to station
at excessive speed and hits a pedestrian causing him grievous injury. Here B has committed a breach
of duty primarily fixed by the law, but his master A will also be held liable in civil action under the
rule of vicarious liability. This definition doesn't give space for such kind of cases to come within its
ambit.

(b) The duty in tort is always general and it is an important constituent of tort. In maximum cases, it
is workable but in some cases, it becomes difficult to say who exactly are 'persons generally' hence it
can be said that these words are ambiguous. In any case, this ambiguity of tortious liability serves to
keep it distinct from the contractual liability, quasi-contractual liability and the liability arising from
bailment where the duty is towards specific persons.

(c) Liquidated and unliquidated damages - where the plaintiff in an action sues for a pre-determined
and inelastic sum of money - it is a claim for liquidated damages. But if he sues for a sum which
court, in its discretion, is at liberty to award, then he is said to have a claim for unliquidated damages
even though he has mentioned a particular (fixed) sum of money in his pleadings.

The action for unliquidated damages is a litmus test of tortious liability since the award of damages is
under the discretion of courts.

______________

1. Winfield and Jolowicz on Tort by W.V.H. Rogers, 12th Edn., 1984, p. 3.

In case of Laxmi Devi v. State of Madhya Pradesh, MANU/MP/0063/2010 : AIR 2011 MP 47 the Court
going through the veracity of tortious liability observed that negligence on part of treating Doctor or
operating surggeon has to be necessarily established as "negligence" or "gross negligence". Because
it is expected from professional medical doctors and surgeon that they would perform their duty well
and upto best of their ability. In absence of culpable negligence, no doctor or surgeon could be
penalised or declared guilty of committing negligence. Apparently if the plaintiff has suffered an
injury for which, apart from the contract, he could have recovered damages, it is a tort, although it
may also be a breach of contract and not less, if the tort has been suffered in the execution or
purported execution of contract, Turner v. Stallibrass, (1898) 1 QB 56. Hence the distinction between
"tort" and "contract" is not a logical one and it is sometimes different to say whether a particular
thing is a wrong or a breach of contract.

In the case, State of Rajasthan v. Vidyawati, MANU/SC/0025/1962 : AIR 1962 SC 933: (1962) Supp 2
SCR 989, the plaintiff had claimed a damages for Rs. 25,000, but the court awarded only Rs. 15,000.
Considering such element of tort, it can easily be distinguished from contract and bailment where
the amount of loss is always pre-determined and inelastic. This definition also lacks other remedies
viz. (a) self-help (b) injunction; and (c) actions for specific restitution of property.

* Self help can be availed by a person without going into a court of law. For example, if A finds a
drunken stranger 'B' in his room then A is entitled to get rid of him without force but if he does not
succeed then he can use as much force which is required to evict the stranger from his room. So, in
Winfield's definition, an action for unliquidated damages is not necessarily the primary remedy for a
tort.

* Injunction is the order or judgment given by the court to restrain the commission or continuance of
some wrongful act or omission. For example, in case of nuisance, the first remedy that would suggest
itself is injunction and an action for damages would then follow. Thus, here injunction is the primary
remedy and not the unliquidated damages which comes later.

* Actions for specific restitution of property are the alternative remedies in law of torts. When the
plaintiff has been dispossessed of his land, chattels or goods by wrong means then only such
remedies are granted. It can be said here that an action for damages is not essentially the primary
remedy.

By incorporating nature, scope and characteristic of torts in the Winfield's definition it can be read
as:

"Tortious liability arises from the breach of a duty primarily fixed by law which results in an
infringement of private legal right of another and for which, civil action for unliquidated damages,
injunction, specific restitution of property or even self-help, as the case may be, can be maintained." 1

2. Essentials of Tort

What are the essentials of tort?

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

__________________

1. S.P. Singh, Law of Tort, 4th Edn., p. 6.

(a) A wrongful act or omission on the part of a person;

(b) That wrongful act or omission must result in legal damage to another; and
(c) The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an
action for damages.

(a) Wrongful act or omission

What is wrongful act or omission?

A wrongful act or omission is said to have been committed by a person who has not performed his
duty like a reasonable and prudent person or has broken it intentionally.

In the case, Rogers v. Rajendra Dutt, (1860) 8 MIA 103 (136): 13 Moore PC 209, it was observed that
'the act complained of should, under the circumstances, be legally wrongful as regards the party
complaining; that is, it must prejudicially affect him in some legal right; merely that it will, however
directly, do him harm in his interest is not enough'.

Legal right in words of Austin is a 'faculty' which resides in a determinate party or parties by virtue of
a given law, and which avails against a party other than the party or parties in whom it resides. For
example, 'A' erects a wall on his land which obstructs the light to B's house. Although it is
undoubtedly a lawful act to erect a building on one's own land but since the neighbour has enjoyed
uninterrupted light for years, he has acquired the legal right to have this enjoyment, so erection of
construction by A on his own land is an invasion of the right of B hence, not only damage but it is
also unlawful and injurious.

A wrongful act may be a positive act or an omission which can be committed by a person either
negligently* or intentionally** or even by committing a breach of strict duty.***

For instance, if a person drives his car at an excessive speed and with his rash and negligent driving
injures any person on the road or keeps a dog on his land which escapes and bites a person in the
neighbourhood then such act of the said person is a positive wrongful act or omission and he can be
held liable for this.

It would be pertinent here to mention that a breach of merely moral or religious duty can't be
considered under this head but it must be a duty primarily fixed by the law.

Example: Moral Duty

A, a lady who falls ill and requests her neighbour B to look after her since she is all alone. B takes care
of 'A' and extends all types of help like giving food and medicines to her and making her comfortable
with his presence at the time of need. A recovered after sometime. Once B fell ill, he requested A to
help him during his illness but A never acceded to B's request and B due to lack of proper care and
help became disabled. Here, it was A's moral duty to look after B

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* Negligence means when a person does not act with care and caution and said to be careless while
performing his duty without applying prudence.

** Intention signifies full advertence in the mind of the defendant to his conduct which is in question
and to its consequences, together with a desire, for those consequences.

*** Breach of strict duty speaks about liability of person even though he is not at fault.
In Rylands v. Fletcher it was laid down "if a person brings or accumulates on his land anything which,
if it escapes, may cause damage to his neighbours, he does so at his peril, if it escapes and cause
damage, he is responsible, however careful he may have been, and whatever precautions he may
have taken to prevent damage".—(1868 LR 3 HL 330).
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during his illness and this duty cannot be held as legal duty. Since, this moral duty has not been fixed
by law itself, B cannot take any legal action against the lady 'A'.

Example: Religious Duty

In the case Dhadphale v. Gurav, (1881) 6 Bom 122, Dhadphale was a servant in the temple and had a
right to get the food offered to the idol and Gurav was under obligation to offer the food to idol but
he failed to do so and the servant Dhadphale brought a suit against Gurav for damages. It was held
by the Court that Gurav was not under legal obligation to give the food to the servant of the temple,
failure to offer the food to idol was a breach of religious duty and not the legal duty hence, the
plaintiff was not entitled for damages.

Damage to wall by water

In the case Anand Singh v. Ramachandra, AIR 1953 MP 28, the defendant built two pucca walls on
two sides of his house on his land resulting in damage to walls situated between the defendant's and
plaintiff's houses. The flow of water in the lane damaged the plaintiff's walls. The plaintiff had not
acquired any right of easement. The Court was of the view that the defendant by building the wall on
his land had not in any way violated the plaintiff's right therefore, no right of action was accrued to
the plaintiff.

(b) Legal Damage

Describe legal damage. Discuss absolute and qualified damage with the help of relevant cases.

Legal damage is second important ingredient in constituting a tort. Damage means the harm or loss
suffered or presumed to be suffered by a person as a result of some wrongful act done by another
person. The sum of money which is awarded by the Court to compensate 'damage' is called
"damages".

On the basis of presumption of damage rights are of two types: (i) absolute and (ii) qualified.

In case of violation of absolute right, the law conclusively presumes damage although the person
wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is legal damage.
In qualified rights, there is no presumption of legal damage and the violation of such right is
actionable only on proof of actual or special damage. In this case injury or wrong is not complete
unless and until actual damage has been caused by violating the rights.

In Ashby v. White, (1703) 2 Lord Rayam 938, the plaintiff's legal right to vote in the parliamentary
election was maliciously violated by the defendant and the defendant was held liable although the
plaintiff not incurred any pecuniary loss. Lord Hott, C.J.; observed-"Every injury imports a damage,
though it does not cost the party one farthing, and it is impossible to prove the contrary for a
damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of
his right".

In another case, Marzetti v. Williams, (1830) 1 B&AD 415, the banker refused to honour the cheque
of the customer although the banker had sufficient funds in his hand. Here the customer did not
sustain any actual loss or damage, the banker was held liable.

In the words of Ihering - 'Rights are legally protected interests'. Right may be divided into two types:
Private and Public. Private rights are those rights which vest in a person by virtue of law. Right to
reputation, right to bodily safety and freedom, right to property etc. fall under this category. So, if a
person has legal (private) right others have a duty towards him not to violate his rights. If his legal
right is infringed without lawful excuse, he has a right of action against the person who infringes or
violates it.

Public rights are those rights which belong to everyone as common people or it belongs in common
to the members of the State generally. In case of violation of public rights, State takes action against
the offender. For example, public peace, it is a right of everyone and if someone breaks it then he
would be held liable and will be punished under law.

(c) Legal Remedy

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

Mathematically tort can be summarised as follows:

Wrongful act Legal damage + Legal remedy = Tort

+

| | |

(a breach of (infringement of (there must be at least 1 out of 4

legal duty) private legal right of remedies recognised by law i.e.
another person) damages, injunction,
specific restitution of property and self
help.)

3. Ubi Jus Ibi Remedium

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

4. Foundation of Tortious Liability

Explain the two competing theories of tortious liability given by Winfield?

Jurists are not having same opinion as to what constitutes the foundation of tortious liability.
Winfield has given two competing theories:

(i) All injuries done to another person are torts, unless there is some justification recognised by law.

(ii) There are a definite number of torts outside which liability in tort does not arise.
The first theory has got support from Sir Fredrick Pollock as well as from eminent judges. Winfield
says that - if I injure my neighbour he can sue me in tort whether the wrong happens to have a
particular name viz. assault, battery, deceit, slander or even in absence of such names and I shall be
liable if I fail to prove lawful justification. On this view, the law of tort/torts consist not merely of all
those torts which have acquired specified names but also includes the wider principle that all
unjustifiable harms are tortious. In the case, Chapman v. Picker S. Gill, (1762) 2 Wills 145 (146), Pratt,
C.J. held that 'Torts are infinitely various, not limited or confined. Bowen, L.J. in the case Skinner &
Co. v. Skew & Co., (1893) 1 Ch 413 (422), observed that "at common law there was a cause of action
whenever one person did damage to another wilfully and intentionally without just cause or excuse."

The second theory is also known as pigeon-hole theory. According to this theory the law of torts
consists of a net-set of pigeon-holes, each containing a specific tort. For example, assault, battery,
deceit, slander or any other tort. If the wrong committed by defendant does not fit in any of these
pigeon-holes, then he has committed no tort. Sir John Salmond, an ardent supporter of this theory
says, "Just as the criminal law consists of a body of rules establishing specific offences, so the law of
torts consists of a body of rules establishing specified injuries. Neither in the one case nor in the
other is there any general principle of liability. Whether I am prosecuted for an alleged offence or
sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and
established rule of liability, and not for me to defend myself by proving that it is within some specific
and established rule of justification or excuse."

5. Conclusion

The first theory has got reinforcement by the court by repeatedly extending the domain of the law of
tort by creating new torts i.e. torts to which specified names have been given. For example, tort of
malicious prosecution, deceit, absolute or strict liability etc. So, it is evident from such instances that
the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a
set of pigeon-holes is not tenable. The first theory has got support from Lord Mansfield in Gardiner v.
Creasdale, (1760) 2 Burr 905, in the year 1760 and in 1762, Pratt C.J. in the case Chapman v. Pickers,
gave his favour to this theory. It also got positive remark by Bowen, L.J. and Holmes J., in the cases
Skinner & Co. v. Skew & Co. and Aikens v. Wisconsin, 191 (195) US 194, respectively. There is still
some controversy regarding second theory and different authors have varied views. Dr. Jenks finds
that new torts can be created and this is perfectly consistent with this theory because new torts
cannot come into being unless the courts regard them as substantially similar to torts which they
have already recognised.1

Both the theories have their own merits and shortcomings and it depends upon the viewers who
looks upon the theories from the angle he chooses.

____________

1. Journal of comparative legislation, Vol. CIV, (1932), p. 210.

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CHAPTER 2

Tort Compared with other Legal Liabilities

To understand the law of torts it's essential to differentiate tort with other kinds of legal liabilities.
Other legal liabilities viz. crime, breach of contract, breach of trust and bailment have same
similarities with that of tort but even then, there are some points on which tort stands apart from
these legal liabilities. In this chapter, we will try to find out the true position of tort at legal forum.

1. Tort and Crime

Q. Distinguish between tort and crime.

Since the time immemorial, it was a rule of primitive communities that the injured were
compensated through pecuniary reparation. Private compensation was also allowed in crimes like
homicide and serious bodily injury.

Henry Maine, observed that the penal law of primitive communities was not the law of crimes but
the law of torts.1

In the Anglo-saxon law, mostly pecuniary punishments were in vogue for different kinds of injuries
viz. WER - price for causing death; BOT for personal injuries; WITE or fine - it was payable to the King.
During the reign of rulers like Henry II, the crime was separated and the concept of Tort came into
being and it was separated from crime.

Holdsworth2.-Only certain lines of distinction are to be found in the nature of remedy given, and the
nature of the procedure to enforce the remedy. If the remedy given is compensation, damages, or a
penalty enforced by a civil action, the wrong so redressed is a civil wrong. If the remedy given is
punishment of the accused which is enforced by a prosecution at the suit of the Crown, the wrong so
redressed is a crime...

Blackstone3.-The distinction of public wrongs from private, of crime and misdemeanours from civil
injuries, seems practically to consist in this: That private wrongs or civil injuries are an infringement
or privation of the civil rights which belong to individuals, considered merely as individuals; public
wrongs, or crimes and misdemeanours, are a breach and violation of the public rights and duties due
to the whole community, considered as a community in its social aggregate capacity.

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1. Maine, Ancient Law, p. 379.

2. Sir William Holdsworth, History of English Law, p. 7.

3. Blackstone Commentary, p. 5.

Distinction between a Tort and a Crime

Tort Crime

1. A tort is an infringement of 1. A crime is an invasion of public

private rights belonging to an rights or duties affecting the whole

individual. society/community.

2. In tort the civil action is 2. In crime, the wrongdoer is

brought

by the injured party himself. prosecuted/punished by the State

The

wrongdoer has to pay damages and if he is proved guilty and fined

to the injured party. then the fine (money) will go to Government

treasury.

3. In tort, the intention of 3. In crime, the intention is one of the

wrongdoer

is of secondary importance. main factors.

4. Tort is considered as a 4. Crime is regarded as a public

private

wrong. wrong.

Some more facts:

* A liability in tort may co-exist with criminal liability.

* Most of the crimes are also torts e.g. assault, libel, theft etc.

* Sometimes an injury may be regarded as a crime but not a tort e.g. public nuisance by obstructing
traffic on a public road.

2. Tort and Contract i.e. Breach of Contract

Q. Do you agree with the appraisal `an action for wrongful dismissal of an employee is a breach of
contract and not a tort' if your answer is in affirmative then explain it with the help of relevant
cases?

With the growth of civilization, necessities of people grew manifold and thus trade and commerce
started growing day-by-day. When the trade increased, litigation could not lag behind, since the
interests of the people clashed and it started taking ugly shape, then the concept of contract came
into being i.e., laying down the terms and conditions between the parties on which both are agreed.
It was done to avoid the litigation arising out of differences of opinions later on.

Professor Winfield said about the distinction between contract and tort as-"At the present day, tort
and contract are distinguished from one another in that the duties in the former are primarily fixed
by the law, while in the latter they are fixed by persons themselves. Moreover in tort the duty is
towards persons generally, in contract it is towards specific persons or a specific person".1

Differences between Tort and Contract as observed by Judges in various cases:

Addis v. Gramophone Co. Ltd., 1909 AC 488.-

"................by entering into a contract, the parties to it create for themselves rights and obligations
and a breach of duty arising out of those obligations is actionable as a breach of contract, and when
it is necessary in order to establish the existence and enforceability of the duty, prove and rely upon
the contract, the only action that can be brought is an action for breach of contract, and the breach
of a duty of this kind is not a tort. Thus an action for wrongful dismissal of an employee is a breach of
contract and not a tort. So also, is perhaps, a wrongful expulsion from school."
_____________

1. Winfield, Law of Tort, 6th Edn., p. 40.

Jarvis v. Mary Davies, (1936) 1 KB 390.

"the distinction in the modern view for this purpose between tort and contract may be put thus:
Where the breach of duty alleged arises out of a liability independently of the personal obligation
undertaken by contract, it is tort and it may be a tort, even though there may happen to be a
contract between the parties, if the duty in fact arises independently of that contract. Breach of
contract occurs where that which is complained of is a breach of duty arising out of the obligation
undertaken by the contract."

Austin v. G.W. Rly, (1867) 36 UQB 201.-

"........ the right which a passenger by railway has to be carried safely does not depend on his having
made a contract but the fact of his being a passenger casts on the company a duty to carry him
safely. The child was taken into the train and received as a passenger by the railway company's
servants with their authority. Under these circumstances, does not the law require those who were
carrying the child to take reasonable care that he should come to no damage."

Distinction between a Tort and a Contract

Q. Describe the distinction between tort and contract.

Tort Contract

1. In tort, the duty is 1. But, in contract, the duty is fixed by

fixed by the

law itself e.g. A the parties themselves. e.g. A

commits battery

against B or damages agrees to sell goods to B for a price

B's property

without lawful cause or but A fails to do so. A has

excuse, it

is a tort. Here, duty committed a breach of duty what

violated is a

duty imposed by law he had agreed to perform under a contract with B.

itself. Here, the duty has been fixed by the parties themselves
and not by law.

2. In tort duty is 2. In contract, the duty is toward

towards every

person of the specific person or persons.

community or society.

3. Motive is one of the 3. Motive is not of paramount

essentials

of tort. importance in case of contract, it is virtually immaterial.

4. A tort may be 4. A contract is done on the basis of
committed against

or without consent. consent given by both the parties.

5. No privity is needed 5. In contract, there is a privity between the parties.

in tort.

6. A tort is a violation of 6. A breach of contract is an

a right in

rem (i.e. of a right infringement of a right in

vested in some

determinate person and personam (i.e. of a right available

available

against the world at against some determinate person or party).

large).

7. Measure of damages 7. Damages are awarded in the form

differs in

different of compensation for pecuniary loss suffered* in case of

circumstances. breach of contract

8. In tort, a third party 8. The question does not arise since

can sue for

tort even though there the third party does not come
was no

contract between the under the purview of being

wrongdoer

and the person covered for any compensation.

injured.

* There are instances/cases viz. breach of promise of marriage or when a banker refused to honour
the cheque even when the funds were available with banker cases are - Jogendernath v. New Bengal
Bank, 1939 Cal 63; and Groom v. Crocker, (1939) 1 KB 194 CA.

3. Tort and Quasi-contract

Quasi-contract is based on the principle that if a person unjustly gets something (wrongly delivered
by someone) then he must inform/return it to the rightful owner then and there. If a person has
received an advantage for which he is not entitled, then he should return it back to the rightful
owner.

Tort and Quasi-contract, both have duty as imposed by law.

Distinction between Tort and Quasi-contract

Tort Quasi-contract
1. Tort gives right to damages as 1. Quasi-contract gives right only in

well as also grants other remedies. respect of money.

2. In tort, the claim is always for un- 2. Claim under quasi-contract is for

liquidated damages. liquidated sum of money.

3. Duty is towards persons generally 3. Rights arisen from quasi-contract

and not to a definite person. is against particular person or persons.

4. Duty under torts arises due to 4. In Quasi-contract, there is no such

breach of primary duty. concept of primary duty.

4. Tort and Breach of Trust

Trust is a relationship which is established through mutual understanding. It has got some similarities
with that of law of contracts but forms a different branch from contract as well as tort.

* Damages claimed in tort are unliquidated while these are liquidated in case of the breach of trust.

* In breach of trust compensation is not termed as damages.

* Whole law of trusts is regarded as a division of the law of property which is fairly detachable from
other parts of law.

5. Tort and Bailment

Sir William Jones, in 'Treatise on the Law of Bailment' has described bailment is a delivery of goods
on a condition, express or implied, that they shall be restored to the bailor or according to his
directions, as soon as the purpose for which they are bailed has been completed.

Bailor - who delivers the goods.

Bailee - to whom the goods are delivered.

Examples of Bailment-

Hire of goods, gratuitous loan of goods and pawn or pledge.

Prof. Winfield opines that the bailee's liability is not tortious because the duty arises from a relation
i.e. in between bailor and bailee created by the parties. He has further expanded in these words-"if
the bailor's claim is necessarily founded upon some specific provision in a contract, then no doubt,
the bailee's liability is no tortious but contractual, but if the bailor's claims rest upon a breach by the
bailee of one of the bailer's common law duties, then his liability is as much attributable to the law of
tort as is the claim of a visit or against the occupier of premises under the Occupiers' Liability Act."

CHAPTER 3

Damnum Sine Injuria & Injuria Sine Damno (Damnum)

1. Meaning

Winsmore v. Green Park, 1745 Wills 577 (581).

Damnum-damage in terms of substantial loss of money, comfort, health, service etc. as it was
observed in the case.

Injuria-it means a breach of legal right or infringement of legal right. But it should not be wilful or
malicious. When the breach or infringement of legal right is tortious then only the question of action
arises. If, the law has conferred some right on a person and it has come across some unauthorized
interference then it is termed as injury.

Ist Maxim:-Damnum Sine Injuria

Q. The decision in the case Mogul Steamship Co. v. MCGregor, Gow & Co.,establishes the principle
that competition with deliberate infliction of harm afford no ground of action, unless it is done
unlawfully. In light of these observations, explain the maxim `Damnum sine injuria'.

No action lies for damage or loss, even when it is substantial in nature but has been caused by an act
which does not breach/infringe some legal right of the plaintiff. The maxim damnum sine injuria has
thus a meaning which says - damage/loss without breach or infringement of legal right.

We can understand this maxim with the help of following cases:

Gloucester v. Grammar School, 1441 YB 11 Henry IV, 47, p. 21.

In this case, plaintiff was running a school, defendant had also set up a school for children. Plaintiffs
had to reduce the tuition fees for children by a substantial margin since children of plaintiff's school
were running away and joining the defendant's school. It was held that even though the plaintiff has
suffered substantial loss due to rival school but plaintiffs had no cause of action against the
defendant on the ground that bona fide competition cannot afford ground for action, whatever
damage it has caused to plaintiff.

Justice Hankford delivering the verdict remarked as 'damnum' may be (obsque) injuria, as, if I have a
mill and my neighbour puts up another mill whereby the profit of my mill is diminished. I shall have
no action against him, although I am damaged'.

Mayor of Bradford v. Pickles, 1895 AC 587.

In this case, the defendant was unhappy when the Bradford Corporation refused to purchase his land
in connection with the scheme of water supply for the inhabitants of the town. With a vengeance,
the defendant sank a shaft on his land resulting in diminishing underground water which also turned
discoloured flowing to the land of plaintiff.

The plaintiff i.e. corporation brought a suit against the defendant that the conduct of later is of evil
design, and it was unlawful. But, the contention of the plaintiff was rejected on the ground that the
act of defendant upon his own land was not actionable when he was very much within his legal
rights, although his motive was to prejudice his neighbour. Lord MacNaghten stated that "the real
answer to the claim of the corporation is, that in such a case motives are immaterial. It is the act, not
the motive for the act, that must be regarded. If the act, apart from motive, gives rise merely to
damage without legal injury, the motive, however reprehensible it may be, will not supply that
element."

Mogul Steamship Co. v. McGregor, Gow & Co., 1892 AC 25.

Here, A, B, C & D, defendants were the shipowners, who were in trade of shipment of tea from China
to England offered special concession to customers to oust their rival E from the business. E in this
circumstances suffered loss and sued A, B, C & D that they have conspired against his business.

The Court of Appeal and the House of Lords held that defendants had done nothing unlawful. The
House of Lords observed that the defendants have done so to extend their trade to increase their
profits, although with the intention of injuring plaintiff.

The plaintiffs were not entitled to recover the damage they had suffered by the defendant's
acts.-"The defendants have done nothing more against the plaintiffs than pursue to the bitter end a
war of competition waged in the interest of their own trade. Nor there is any element of illegality in
the fact of combination among the defendants, as long as it was for the purpose of trade and
competition."

The decision in this case establishes the principle that with deliberate infliction of harm affords no
ground of action, unless it is done unlawfully.

Anand Singh v. Ramachandra, AIR 1953 MP 28.

In this case, the defendant built two pucca walls on his land resulting in flow of water through a lane
in between plaintiff's and defendant's house. It damaged the walls of the plaintiff's house. The
plaintiff brought a suit against the defendant and requested the court that he should be given Rs. 100
as damages by defendant. It was the observation of Madhya Pradesh High Court that the defendant
by constructing the walls had not violated any right of the plaintiff hence no cause of action lies
against the defendant. So, plaintiff is not entitled to restrain the defendant from constructing walls
on his land. It is a case of damnum sine injuria .....a case where damage or loss is inflicted without
the act being unlawful. It is an act though harmful to the plaintiff is not wrongful on the part of the
defendant, and no right of action accrues to the plaintiff.

IInd Maxim:-Injuria Sine Damno

Q. Illustrate the maxim `Injuria sine damno' with the help of relevant cases and give your views on
the observation _ the person in whom the legal right is vested is entitled to bring an action and
may recover damages.

This maxim is just opposite of maxim Damnum sine injuria. It means there is breach or infringement
of private legal right but no damage has been done. We can say here also as whenever there is an
infringement of private legal right, the person in whom the legal right is vested is entitled to bring an
action and may recover damages, although there may not be any real/actual loss or harm suffered by
him.

Ashby v. White, (1703) 2 Lord Rayam 938.

Here, the plaintiff was a genuine voter who had gone to cast his vote but the defendant, a returning
officer, wrongfully refused to register his vote. Although the candidate won the election to whom
vote was to be given so it made no difference when the plaintiff didn't vote. When the matter came
to the court, it awarded plaintiff œ 5 (with costs) on the ground that there was the violation of the
plaintiff's legal right was an injury for which he must have a remedy and was actionable without
proof of pecuniary damage.

In this case, while delivering the judgment Lord Chief Justice Holt laid down three prepositions in
favour of plaintiff as follows:
"(a) That the plaintiff, as burgess of this borough, hath a legal right to give his vote for the
parliamentary election,

(b) That as a necessary consequence thereof, and an incident inseparable to that right, he must have
a legal remedy to assert, vindicate and maintain it, and

(c) This is the proper remedy which plaintiff hath presumed, being supported by the grounds,
reasons and principles of common laws of England".

The Chief Justice Holt further held-

"Every injury imports a damage though it does not cost the party one farthing. For a damage is not
merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right so, if
a man gives another a cuff on the ear, though it cost him nothing, not so much as a little plaster yet
he shall have his action, for it is personal injury. So, a man shall have an action against another for
riding over his ground, though it does him no damage for it is invasion on his property."

Kali Kishen Tagore v. Jadoo Lal Mullick, 61 A 190.

In this case, both the plaintiff as well as defendant were proprietors of opposite banks of a water
channel. The defendant had built a wall on his own land for protection. But, the plaintiff sued
defendant for an injunction for demolition of a wall. The Calcutta High Court was of the view that the
contention of plaintiff was justified that the encroachment might damage thereafter. But this
decision was reversed by the Privy Council on the ground, that the water channel bed did not belong
to the plaintiff but to the government, the plaintiff had neither claimed nor proved that he was
entitled to the flow of the water as it had been accustomed to flow or that flow was seriously and
sensibly diverted as to be an injury to his rights, he had failed to show either damnum or injuria
hence the question does not arise for any action. Their Lordships further held, "There may be, where
a right is interfered with injuria sine damno is sufficient for an action; but no action can be
maintained where there is neither damnum nor injuria".

We can conclude this chapter with this observation that there may be certain moral wrongs, which
may cause damage to others but here law offers no legal remedy; and on the contrary, there are
certain legal wrongs which may not cause any loss or damage to another person, but the law
provides a legal remedy although there is mere a violation of private legal right.

CHAPTER 4

Some General Elements of Torts & Its Relavance

There are some general elements in torts viz., act and omission, voluntary and involuntary acts and
mental elements e.g., malice, intention, negligence, recklessness and motives. Prior to discussing
other chapters on tort, it is necessary to study all these essentials which would figure here and there
in following chapters.

1. Acts and Omission

Wrongful act is a constituent of a tort and the word 'act' connotes both positive and negative acts
viz., acts and omissions. In tort, the wrongful acts which make a person liable are positive acts and
sometimes omissions. An omission is failure to do an act as a whole.1 Acts and omissions must be
distinguished from natural phenomenon viz., lightening, earthquake and for such happenings, a
person cannot be held liable. They must also be differentiated from mere thoughts and intentions. As
Salmond has said in his jurisdiprudence - 'which are by themselves harmless hard to prove and
difficult to discipline.'

The law does not impose liability for mere omissions. [Stovin v. Wise, (1996) 3 All 801 (HL)]. An
omission incurs liability when there is a duty to act. In this case, it was further observed that "a duty
to prevent harm to others or to render assistance to a person in danger or distress may apply to a
large and indeterminate class of people who happen to be able to do something. Why should one be
held liable rather than another?" - it can also be understood by referring the example that a person
cannot be held responsible for the omission of not rescuing a stranger child whom he sees drowning
even then he can rescue him without any appreciable exertion or risk of harm to himself. But this
concept/version can be different if the child is one for whose safety and welfare there is a duty laid
on the person who finds him drowning. In the above example, if the parent or guardian is standing
there when the child is drowning, they will be held liable for failure to attempt and rescue for it
would then be a case of an omission where there is and duty to act.

_______________

1. Stovin v. Wise, (1996) 3 All 801 (HL) p. 820.

2. Voluntary and Involuntary Acts

Q. Distinguish between Voluntary and Involuntary Acts.

Voluntary action means wilful exercise. It may be good or bad depending upon circumstances.
According to Brown a voluntary act may be distinguished from an involuntary act by dividing
voluntary act into (i) a willed muscular contraction, (ii) its circumstances and (iii) its consequences.
An act is wrongful since the circumstances in which it is performed and the consequences which it
produces. Example: To crook the forefinger with a certain force is the same act whether the trigger of
a pistol is next to it or not. It is only the surrounding circumstances of a loaded pistol and of a human
being in such relation to it as to be manifestly likely to be hit that make the act a wrong.

Involuntary act-When the muscular contraction is not willed. Salmond in his Jurisprudence has
mentioned-'not in the absence of any actual exercise of will, but due to the lack of ability to control
one's behaviour; involuntary acts are those where the actor lacks the power to control his actions
and involuntary omissions are those where the actor lacks the power to control his actions and
involuntary omissions are those where the actor's lack of power to control his actions renders him
unable to do the act required.'
3. Mental Elements

Q. Give a comparative view on malice-in-law and malice-in-fact.

Voluntary acts also need some mental elements to fasten liability and these are malice, intention,
negligence or motive etc.

Malice

The word malice denotes ill-will. In law, malice has two distinct meanings: (i) intentional doing of a
wrongful act and (ii) Improper motive. First meaning signifies intention whereas the second one
refers to the motive which includes not only ill-will but any motive which is disapproved by law. In
common parlance, malice means ill-will against a person but in its legal sense a wrongful act, done
intentionally, without just cause or excuse. It can also be divided in two:

Malice-in-law Malice-in-fact

A wrongful act done intentionally ill-will, spite or hatred, then we call it

without just cause or excuse, it can malice in fact. It is generally relevant

be implied in every case where a in the torts of defamation on a

person has inflicted injury upon privileged occasion, malicious

another in contravention of the law, prosecution, injurious falsehood,

without just cause or excuse. deceit and conspiracy.

Bayley J. has described malice in the case Brommage v. Prosser, (1825) 4 B&C 247 (255), as - "Malice
in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act,
done intentionally, without just cause or excuse. If I give a stranger a perfect blow likely to produce
death. I do it out of malice, because I do it intentionally and without just cause or excuse. If, I maim
cattle without knowing whose they are, if I poison a fishery, without knowing the owner, I do it out of
malice, because it is a wrongful act, and done intentionally." So, a wrongful act, done knowingly and
with a view to its injurious consequences, may be called malicious.

Motive

Motive is not that much important in law of torts as its other elements. Motive is the ulterior object
or purpose of doing an act. It is more relevant in the case of defamation when qualified privilege or
fair comment is pleaded. Salmond1 has written that motive refers to some personal benefit or
satisfaction which the actor desires whereas intention need not be so related to the actor.

In the case, Nankee v. Ah Fong, AIR 1935 Rang 73, it was observed that the motive of the person
doing the act is immaterial. If it is a lawful act, however good his motive might be, he would have no
right to do it. Motive and intention in such a question is absolutely irrelevant.

A lawful act cannot become unlawful merely because it is done with any motive at the same time, if
the conduct is unlawful, good motive will not exonerate the defendant.

Intention, Negligence and Recklessness

Q. Define intention negligence and recklessness.

When a person has intention to commit some wrong act, he is having the knowledge that what
would be its consequences and that he wants it to get fulfilled. Intention, we can say is a state of
mind and it cannot be permanent, man's state of mind can change any moment. Salmond1 has while
discussing the term 'intention' quoted the dictum of Brain C.J. - that no one can be sure of what was
in another's mind because what a person thinks can be inferred only from his conduct. An act is
intentional as to its consequences if the person concerned has the knowledge that it would result
and also the desire that it should result.

Negligence-In negligence a person commits an act without foreseeing the consequences, which may
cause harm for others or himself.

Recklessness-Recklessness may also be termed as gross negligence but very often and more properly
it is assimilated with intention.

Wilkinson v. Downston, (1897) 2 QB 57.-In this case, the defendant jokingly told the plaintiff about
accident of her husband that he got his legs broken and he is in the hospital, the plaintiff fell ill due to
nervous shock. Later on, she sued the defendant for damages. It was the observation of the court
that the defendant could have known the natural consequences of his act. He was liable for his act
whether he had intended it or not.

Intention not as essential condition-

e.g. nuisance, copyright, injury to person or property.

Intention as essential condition-

e.g. assault, conspiracy, malicious prosecution, defamation.

Fault

Q. Define fault with the help of relevant cases.

It is essential to know about the state of mind of a person to ascertain the liability for the offence, he
has committed. In the torts like battery, false imprisonment and assault, state of mind of the
wrongdoer is an important criteria. But in some cases, mental condition at the time of commission of
an act is irrelevant while determining the liability of the wrong doer. A man who was innocent and
committed an act without any wrong intention even then he

________________

1. Jurisprudence, 12th Edn., (1966), p. 371.

will be held liable. Under strict liability, absolute liability and vicarious liability, a person can be
held liable even when there was no fault on his part. In the case Ryland v. Fletcher, 1868 LR 3 HL
330, it was observed that a person keeps something on his own land but if it escapes and causes
damage to others then he is liable for the offence of causing damage to others. He cannot take
plea for his defence that there was no fault on his part or that he was not negligent for collecting
the thing or its escape. In the case M.C. Mehta v. Union of India, MANU/SC/0092/1986 : AIR
1987 SC 1086: (1987) 1 Comp LJ 99 (SC): JT 1987 (1) SC 1: MANU/SC/0092/1986 : (1987) 1 SCC
395: (1987) 1 SCR 819, while upholding the principle the absolute liability it was remarked that it
(absolute liability) imposes absolute liability on hazardous and inherently dangerous industries
for the harm resulting from the hazardous or inherently dangerous activity.
Due to increase in number of motor accidents a view has taken the shape that the victims and their
dependents should be allowed certain amount of compensation on the basis of no fault without
prejudice to their right of getting higher compensation on the principle of fault and this was first
implemented in India by the Motor Vehicles (Amendment) Act, 1982.

As discussed above, abuse of rights has been generally prevented in the system. But, still we are
away from the fence where a distinction can be drawn between abuse of private rights which directly
injuries the public e.g., setting fire to a corn-field and abuse of right directly affecting adversely to
one's immediate neighbour. Thus the former should come under the category of criminal law
whereas the later under the law of torts. To cause damage to such things which affect the public at
large should figure under the criminal law. (e.g., petrol, kerosene, coal etc.). Whereas such act by
which someone has been injured solely from an evil motive, the wrongdoer should be held liable
under the law of torts.
CHAPTER 5

General Principles nullifying Tortious Liability: General Defences

1. Introduction

There are some general principles which nullify the tortious liability of a person. As we have already
discussed in preceding chapters that an action may fail if the plaintiff fails to prove the essential
ingredients of a tort. But even after proving the ingredients of a tort, a plaintiff will fail, if the
defendant justifies his tort on the basis of principles which nullifies tortious liability.

2. Maxim of General Defence: Volenti non fit injuria

Q. Define the maxim volenti non fit injuria.

If a person suffers a harm voluntarily then it does not constitute a legal injury and is not actionable.
The maxim volenti non fit injuria signifies this meaning. A man cannot make an excuse for an injury
which he has received in fulfilment of his desire or willingly accepted to take the risk. If the person
has consented either expressly or impliedly then he can't sue for a tort. Volenti non fit injuria can
also be translated as 'the injury voluntarily suffered is not fit for action'. So, no breach of legal right
can be said to be committed against the person who is a willing party or who has given his consent
for the harm/injury to be received in consequence of the furtherance of his act. Such injury is not
actionable. There are basic points which constitute the maxim volenti non fit injuria which the
defendant requires to prove for justifying his tort. They are:

Knowledge of risk

At first instance, the plaintiff should have the knowledge about the nature of act/work and the risk
involved in performing the act. If, he lacks the knowledge about the nature of work and quantum of
risk what it will be when the work is performed; it will be presumed that he had no knowledge of the
risk. The knowledge of the plaintiff is significant here and if it is missing, the defence of volenti non fit
injuria cannot be availed by the defendant.

Free consent

Besides the knowledge of the nature of act as well as extent or risk in an act, free consent to run the
risk is also necessary for the plaintiff. The consent must be voluntarily and with free will. Consent
given by the plaintiff under coercion or force, fraud and mistake can't be treated as free consent.

Consent to illegal act

It was observed in the case R. v. Donovan, (1934) 2 KB 49, that no person can give license to another
person to commit a crime. Winfield1 has said, "certainly it cannot be true that the maxim is excluded
whenever the act constitutes a crime as well as a tort, for every assault is criminal, and so are some
libels, and yet it is possible, by assent, to negative tortious liability for many kinds of assault and
libel."

Consent of minors or insane persons

Consent given by minors or insane persons are generally not taken as consent since both are
considered immature as far as knowledge is concerned and in such cases, consent by their guardians
are taken as sufficient.

Breach of statutory duty

In many cases, a number of duties are being imposed on the employer. When there is a breach of
statutory duty by the employer, he is liable even when the employee has given the consent. Hence,
consent to a breach of statutory duty is not acknowledged. In the case Baddeley v. Earl Granville,
(1887) 19 QBD 647. Will J. has stated-"the law will not permit an employer to make it a term of his
servant's contract that the latter shall connive at a breach of his master's statutory obligations which
is not intended for his benefit only but also for the benefits of others".

Now, it has become a well-established rule that the defence of volenti non fit injuria is not applicable
to an action where there is a breach of statutory duty otherwise known as statutory negligence.

3. Application of the Maxim

Q. Discuss the application of maxim 'volenti non fit injuria' with the help of relevant cases.

A man cannot complain of harm to which he has already given his consent with full knowledge and
free will. It also applies to the intentional act which would be otherwise tortious. Some cases are
discussed as below:

Ilott v. Wilkes, (1820) 3 B & Ald 304.

In this case, the defendant had kept spring guns in a wood on his ground to protect the game. The
plaintiff had full knowledge about placement of spring guns trespassed on the defendant's land and
got injured. The plaintiff brought a suit against the defendant that he had exceeded the right of
private defence. It was the observation of the court that although defendant was exceeded his right
of private defence he was not liable since the plaintiff had taken the risk of trespassing even after
knowing that the spring gun was placed on defendant's land. The court observed that he having
wilfully courted the danger himself his case fell within the maxim volenti non fit injuria.

Bird v. Halbrook, (1828) 4 Bing 628.

In this case, the defendant had placed a spring gun in the garden since flowers from his garden used
to be stolen more often. One day, a pea-hen belonging to the plaintiff entered into defendant's
garden. The plaintiff to catch his fowl got alighted the wall of the garden unaware of the spring gun
placed there. The plaintiff got injured and the defendant was sued. The court gave the verdict in
favour of plaintiff since he had no knowledge about the gun and the maxim volenti non fit injuria was
not applicable here.

Maung Sein v. Emperor, AIR 1935 Rang 471.

Mrs. Ma Thin, wife of Maung Sein, died after giving birth to a child. An unqualified mid-wife attended
Ma Thin during delivery of the child. Ma Thin, knowing completely about her qualification consented
to appoint her as mid-wife. It was held that the maxim volenti non fit injuria is applied here as the
plaintiff had taken the risk to appoint unqualified midwife with full knowledge hence, not entitled for
damages.

Abovementioned cases are the examples of expressed consent.

There may also be cases where the risk can be taken by his implied consent. Cases of implied consent
are as follows:

Thomas v. Quartermaine, (1887) 18 QBD 685.

The defendant had a brewery, where the plaintiff was working. The plaintiff tugged at a board with a
view to remove it from the top of a boiling vat to which the board served as a lid. Suddenly, the lid
came off and fell into a cooling vat, which was sunk in the floor about three feet away from the
boiling vat. The fencing was not proper, the plaintiff fell into the boiling vat and got severely injured.
It was observed that the plaintiff had full knowledge of the danger. Majority of judges was of the
view that the action was not maintainable. Bowen L.J. remarked..... 'it is no doubt true that the
knowledge on the part of the injured person which will prevent him from alleging negligence against
the occupier must be knowledge against such circumstances as lead necessarily to the conclusion
that the whole risk was voluntarily incurred. The maxim, be it observed, is not scienti non fit injuria
but volenti. It is plain that mere knowledge may not be a conclusive defence. There may be
perception of the existence of the danger without comprehension of the risk as where the workman
is of imperfect intelligence or though he knows the danger, remains imperfectly informed to its
nature and extent. There may again be concurrent facts which justify the enquiry whether the risk,
though known, was really encountered voluntarily."

In the instant case, the defendant did not provide a conducive place of working i.e., a place free of
risk, hence he was negligent. But, the court did not find the defendant as guilty of negligence and
held that the whole risk was voluntarily incurred.

Smith v. Baker & Sons, 1891 AC 325.

Smith was working under Baker & Sons and the place where he was working a crane often carrying
heavy stones used to move over his head. He used to drill the rock for cutting purpose. Employer as
well as the employee both had knowledge, that the stones being carried overhead may fall
sometime, but no warning was given to Smith of the movement at which any particular jibbing
commenced.

In this case, the principles laid by Bowen L.J., in the case Thomas v. Quartermaine, was not extended.
The House of Lords held that the defendants were liable. Lord Herschell observed "where a person
undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has
been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the
risks inevitably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has
been done to him, even though the cause from which he suffers might give to others a right of
action." He further added-"where a risk to the employed, which may or may not result in injury has
been created or enhanced by the negligence of the employer, does by mere continuance in service,
knowledge of the risk preclude the employed, if he suffers from such negligence, from recovering in
respect of his employer's breach of duty? I cannot assent to the proposition that the maxim, volenti
non fit injuria, applies to such a case, and that the employer can invoke its aid to protect him from
liability for his wrong." Then his Lordship referred to the case of Thomas v. Quartermaine, and
disapproved its decision by stating, "if the effect of the judgment be that the mere fact that the
plaintiff, after he knew the condition of the premises, continued to work and did not quit his
employment, afforded his employer an answer to the action, even though a breach of duty on his
part was made out, I am unable, for the reasons I have given, to concur in the decision."

This case has laid down the rule of implied consent where the plaintiff has taken the risk of
performing the job in dangerous condition, he has consented for incurring the risk of harm, although
the defendant did not take care to minimize the risk as much as possible.

Dann v. Hamilton, (1939) 1 KB 509.

In this case, Dann decided to board the car of Mr. Hamilton, Ms. Dann while entering the vehicle
noticed that Mr. Hamilton was under the influence of liquor. The car met with an accident and Ms.
Dann got injured. This accident occurred due to negligence of Hamilton. Now, the question was
whether the maxim volenti non fit injuria was applicable or not? Asquith J. was of the view that this
maxim did not apply or plaintiff could recover damages. Mere knowledge of this fact that Hamilton
was drunk. Ms. Dann did not give her consent to do the job negligently or absolved the driver from
liability for, any subsequent negligence on his part whereby the plaintiff might suffer harm..... There
may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring
that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation,
intermeddling with an exploded bomb or walking on the edge of an unfenced cliff. It is not necessary
to decide whether in such a case the maxim volenti non fit injuria would apply, for in the present
case I find as a fact that the driver's degree of intoxication fell short of this degree. I therefore,
conclude that the defence fails, and the claim succeeds.

South Indian Industries Ltd., Madras v. Alamelu Ammal, 1923 Mad 565.

Q. "The defendant can successfully plead the maxim only when he proves that the person injured
knew of the danger, appreciated it and voluntarily took the risk." Discuss this statement in the light
of the observation given in the case South Indian Industries Ltd., Madras v. Alamelu Ammal.

The defendant was performing the job of breaking the cast iron and for that purpose he used to drop
it from a height of 35 feet. In this process, iron pieces flew for few yards. A screen was put up to stop
the flying iron pieces. A warning was also issued to the persons nearby, but the workmen working at
a distance were not warned about the danger to go on working that they might receive injury also.
The plaintiff was standing at about 80 feet distance and was hit by the iron piece and got injured. It
was found that the defendants did not take sufficient care and were guilty of committing negligence.
The defendant took the plea of the maxim volenti non fit injuria but it was not applied in the case.
The court observed-"the defendant can successfully plead the maxim only when he proves that the
person injured knew of the danger, appreciated it and voluntarily took the risk. That the defendant
had some knowledge of the danger is not sufficient. A man cannot be said to have voluntarily
undertaken a risk the extent of which he does not appreciate."

4. Exceptions to the Application of the Maxim

There are exceptions to the application of the maxim volenti non fit injuria. Some cases are discussed
as follows:

Wagner v. International Railway, (1921) 232 NY 176.

A passenger fell down from the railway car due to negligence of Railway Company. To search his
friend; the fellow passenger got down as the train stopped. But, he fell down since it was darkness
and got injured. Cardozo, J., held the Railway Company liable and observed-"Danger invites rescue.
The cry of distress is the summons to relief. The law does not ignore those reactions in tracing
conduct to its consequences. It recognizes them as normal. The wrong that imperils life is a wrong to
the imperiled victim. It is wrong also to the rescuer......The risk of rescue if only, it is not wanton, is
born of the occasion."

Haynes v. Harwood, (1935) 1 KB 146.

Here, the servant of defendant left a two-horse van unattended in a crowded street. The horses ran
away. The plaintiff, a policeman was on duty and he was in the police station. He saw that a woman
and many children were on the street. Seeing them in grave danger that they might be run over by
these strong horses. The plaintiff came out of his police station and stopped the horses. But, in doing
so he got injured. Greer L.J. accepted the American rule, as stated by Dr. Goodhart and observed that
the defendant was liable. Simultaneously, he held that, "the rescuer's act need not be instinctive in
order to be reasonable for the man who deliberately encounters peril after reflection may often be
acting more reasonably than one who acts upon impulse."

The rescuer should act reasonably and not with emotions.

5. Act of God (Vis Major or Damnum Fatale)

Q. Describe the `Act of God' or `vis major' with the help of relevant cases.

As it is clear from the heading that what is not in hand of human being, we usually call that it is done
by God. Flood, rainfall, frost, drought, wind, hurricane, earthquake etc., are the acts of nature. All
these acts, most of the time cannot be anticipated and what would be its magnitude and its
consequences. Cases related to Act of God or Vis Major are discussed below:

Mahindra Nath Mukherjee v. Mathuradas Chaturbhuj, AIR 1946 Cal 175.

A cinema advertising board was placed on the roof of the defendant which fell down and injured the
plaintiff. Plaintiff brought a suit against the defendant and contended that the board fell due to storm
of unusual severity. But, it was observed that during the season of monsoon a storm of this
magnitude is not uncommon. The defendant had not ensured or foresee that the fixing of banner on
such a height is strong enough to face the pressure of storm during monsoon season. The Calcutta
High Court held that such a storm cannot be said to be so unexpected that no human foresight could
reasonably be expected to anticipate it and cannot be regarded as 'vis major' or 'act of God'. Hence,
the suit was allowed and the defendant was found negligent. Before the act of God can be admitted
the defendant could have taken reasonable care and done all that what he was bound to do.

State of Mysore v. Ramachandra, (1970) 73 Bom LR 723.

In this case, the State had constructed a reservoir for the supply of drinking water for the villagers of
Nipani. But the construction was not completed and the over-flow channel linked with reservoir was
partially constructed. Land and crops were damaged due to flow of water resulted from rain. The
plaintiff filed the suit for damages. The State resisted the suit that it was the act of God. But, the
court rejected the defence and observed - "Assuming an act of God such as flood wholly
unprecedented, the damage in such a case results not from the act of man in that he failed to
provide a channel sufficient to meet the contingency of the act of God. But for the act of man there
would have been no damage from the act of God."

Nichols v. Marsland, (1876) 46 LJ Ex 174.

When a thing escapes from someone's possession due to an unprecedented and unanticipated act of
nature and it is when practically impossible for the owner to prevent it, then the defence of the act
of God applies and in such case the plaintiff can't recover the damages. In this case, Nichols was the
surveyor of some country bridges for Chesire. An estate containing three lakes of ornamental water
fed by natural stream passing through the estate were owned by Marsland. An unprecedented and
heavy downpour caused the lakes to overflow after breaking the embankments of the lakes and the
waves carried away four bridges of the country.

Nichols, the plaintiff brought an action for damages on the plea that the defendant was negligent.
Bramwell, J., observed-"everyone understands that a storm is supernatural in one sense may
properly, like earthquake in this country, be called the act of God or vis major. No doubt, it was not
the act of God or vis major in the sense that it was physically impossible to resist it but in the sense
that it was practically impossible to do so. Had the banks been twice as strong, or, if that would not
do, ten times, and ten times as high, and they were ten times as wide, the mischief might not have
happened, but these are not practical conditions. They are such as, to enforce them, would prevent
the reasonable use of property in the way most beneficial to the community....... I am of the opinion
that the defendant is not liable." Mellish L.J., upheld the decision of the Court of Exchequer and
said-"there was no negligence in the construction or the maintenance of the reservoirs, but that the
flood was so great that it would not reasonably have been anticipated; although if it had been
anticipated, it might have been prevented, and it seems to us in substance a finding that the escape
of water was owing to the act of God."

The act of God or vis major can also be explained mathematically as follows:1

(i) Unprecedented + Unforeseen + Irresistible = Act of God

(As it has been discussed in this Chapter in the cases Nichols v. Marsland; Mahindranath v. Mathura
Dass)

(ii) Unprecedented + Foreseen + Irresistible + Act of God

(Nichols v. Marsland case)

(iii) Precedented + Unforeseen + Irresistible = Act of God

(Greenock Corporation case)

_______________

1. S.P. Singh, Law of Tort, 4th Edn., p. 46.

(iv) Precedented + Foreseen + Irresistible = Act of God

(Greenock Corporation and Mahindranath cases)

6. Inevitable Accident

Q. How do you differentiate accident with `inevitable accident'? Explain with the help of relevant
cases.

Sometimes, it becomes physically unavoidable to check an accident, it is called as 'Inevitable

Accident'. Pollock1 has defined it as-"the accident which is not avoidable by any such precautions as
a reasonable man, doing such an act then and there, could be expected to take."1

We can also say that an inevitable accident is that accident which could not have been prevented by
the reasonable care, caution and skill.

Fardon v. Harcourt Rivington, (1932) 146 LT 391.

In this case, the defendant was travelling in his car with his dog. At one place, after parking the car,
he got down but left the dog in his car and shut the door. Dog was quiet and docile. But the dog was
jumping inside the car and creating all the nuisances and smashed the glass of window. One of the
glass pieces as a splinter penetrated one eye of the plaintiff who was passing across. The plaintiff
brought an action against the defendant for damages. Lord Dunedin did not find the defendant
responsible for the accident as he observed-"this is such an extremely unlikely event that I do not
think any reasonable man could be convicted of negligence, if he did not take into account the
possibility of such an occurrence and provide against it either by not leaving the dog in the car or by
tying it up so that it could not reach the window. People must guard against reasonable probabilities,
but they are not bound against fantastic possibilities."

Padmavati v. Dugganaika, (1975) 1 Karn LJ 93: 1975 ACJ 222.

In this case, there were two strangers who took lift in a jeep. Somehow, the jeep in which they were
travelling, the bolt which was fixing the right front wheel of the jeep in the axle got loosened and the
wheel flew away from the axle. The jeep somersaulted and the passengers (strangers) got injured
and one of them died thereafter. It was the view of the court that this was an accident, as there was
no evidence to show that the defect was a patent one and could have been defected by check up on
regular basis. In this case, the defendant was not held liable.

7. Mistake

Q. What does mistake mean? Define mistake of law and mistake of fact.

Mistake means realization of wrong by oneself. When one commits an error in understanding or
when one understands or perceives wrongly. Thus, a mistake may be committed by a person and it
may be of two kinds: (i) Mistake of law and (ii) Mistake of fact.

(i) Mistake of law.-It has got generally no defence of civil liability for the rule, ignorantia juris non
excusat which applies equally to the law of torts as to other branches of law.

(ii) Mistake of fact.-It has got no ground of exemption from liability in tort. The defendant may be
held liable in tort, although his mistake is based on reasonable and honest belief.

e.g.-in the case Ransom v. Kitner, (1888) 31 All App 241, the defendant killed the plaintiff's dog while
he was hunting for wolves. The dog of plaintiff had striking resemblance to a wolf. The defendant was
held liable for his act.

______________

1. Pollock, Law of Tort, 15th Edn., p. 97.

When a person has committed some act by mistake, it can't be said that he has committed a
wrongful act. If a plaintiff moves an action with malice or wrongful motive then in such
circumstances, mistake may be taken as a good defence.

Sometime, even an innocent person faces prosecution, but the prosecutor incurs no liability unless
he has acted both maliciously as well as without reasonable cause. That's why a mistaken arrest of an
innocent person on suspicion of there being felony is not actionable; if the felony has actually been
committed, and there is a reasonable ground for believing that the person arrested is guilty of it.

8. Necessity

Q. Describe necessity with the help of the maxim `Salus populi supreme lex'.

Sometimes, intentional injury to a person or property may be caused yet the defendant may not be
held liable if he pleads the defence of 'necessity'. The defence of 'necessity' originates from the
maxim 'Salus populi supreme lex' which says the welfare of the people is the supreme law. This
maxim has got the implied assent of every member of the society, that the welfare of the community
comes first compared to individual's welfare i.e., the welfare of community is paramount and for that
individual's property, liberty and life shall, under certain circumstances be placed in jeopardy or even
sacrificed for public welfare.

In the year, 1507, Kingsmill, J.1 observed-"that the violation of another man's rights could be justified
on the ground that the act was necessary to the common well, as in case of fire to take goods out of
a house to save them, to pull down a house to save other houses and in time of war to enter another
man's land to make a bulwark in defence of the king and the realm."

There are some cases in which decision has been given under the defence of necessity-

(a) Deway v. White, 1827 M&M 56.-destruction of a building made ruinous by fire to prevent its
collapse into the highway.

(b) Saltetre case, (1605) 12 Rep 120.-here a house was pulled down which was on fire to prevent the
spread of fire to the property of others.

(c) Kirk v. Gregory, (1876) 1 Ex D 55.-in this case A died in a state of delirium tremens. His servants
were feasting and drinking in the house. B, sister-in-law of A, removed the jewellery of A from the
room where he lay dead and kept it in another room for the sake of safety. But, it was her mistaken
belief and the Jwellery got stolen from that room. The court remarked, 'it is a defence that the act
was done for the preservation or protection of the property of the person, provided there was
reasonable necessity for the act'. B was held liable to A's executor for trespass to the jewellery
because there was no proof that her interference was reasonably necessary.

9. Private Defence

Whenever there is some probability of danger, it is human instinct to save himself or his property
and in course of saving his own, he uses force also. Every person has right to defend himself and his
property or possession against an unlawful harm.

We will discuss here about private defence under following headings.

Defence of person

Q. Define private defence and describe `defence of person' and `defence of property'.

To use reasonable force in self-defence against an unlawful force is right of every person. But, the
term 'reasonable' has to be decided. Whether the used force in self-defence was proportionate to
the danger anticipated. Reasonable also depends on the facts and circumstances. The force used
may not be reasonable (i) if, it is not in proportion to the apparent urgency of the situation, or (ii)
there is no necessity for the use of force. Salmond1 has explained it as - 'in order that it may be
deemed reasonable within the meaning of this rule, it is not enough that the force was not more
than necessary for the purpose in hand. For even though not more than necessary it may be
unreasonably disproportionate to the nature if the evil sought to be avoided'.

If A attacks B with his fist and in return B takes out his sword and cuts A's hand then B here can't take
the plea of use of reasonable force to defend himself. One cannot lawfully defend himself against a
trivial assault by inflicting death or grievous bodily injury even though the assaults cannot be
prevented in any other way.

Another example - if A attacks B with a deadly weapon then B is justified in using a deadly weapon to
protect himself.
But, one more question arises here that - can a person use reasonable force in defending another
person against unlawful force? Pollock, Winfield and Clerk and Lindsell have similar opinion - there is
no doubt that the right extends to the protection of one's spouse and family, and the weight of
opinion includes defence of the servant by the master, or vice versa.

Defence of property

The principle is same here as in the matter of defence of person. A person is entitled to protect his
movable/immovable property with the use of reasonable force if the time demands during any
danger.

If A fences off his land in anticipation of flood coming to his way and if flood comes and turns
towards A's neighbour and damages his property then here A can't be held responsible although his
neighbour has got injured by A's act.

Here, we can say that a person will be held liable if he, while protecting his property uses
unreasonable force or takes unreasonable measures.

Related cases are discussed as follows:

Bird v. Halbrook, (1828) 4 Bing 628.

Here, the defendant had kept a spring gun in his garden, since flowers were oftenly stolen from his
garden. The plaintiff, a boy whose fowl had strayed away, jumped into defendant's garden to search
his missing fowl. He had no knowledge about the gun there and he got injured. The court observed
here that the defendant was liable since he had exceeded the right of private defence to his
property.

Ramanuja Mudali v. M. Gangan, MANU/TN/0192/1984 : AIR 1984 Mad 103.

In this case, the plaintiff was moving towards his own house at night and when he was passing
through defendant's land he got electrocuted by a live wire, put up by the defendant to stop the
trespasser. Here, the defendant was held liable since he had exceeded the right of private defence to
his property.

Holmes v. Bagge, (1853) 1 E&B 782.

Here, the plaintiff as well as the defendant, both were the members of a Cricket Club Committee.
The defendant was a captain during a match and the plaintiff was a spectator. The defendant asked
the plaintiff to substitute one of the players and the latter agreed upon. But, the defendant annoyed
him by saying to put off his coat. The plaintiff neither removed the garment nor left the field. The
defendant then directed to push him out forcibly from the field. The plaintiff filed a suit against the
defendant for damages for assault. The defendant's plea was that he was in possession of the ground
but this plea was not taken since the possession of the ground was in the committee of the club. The
defendant was held liable.

Turner v. Jagmohan Singh, (1905) 27 All 531.

The defendant was going somewhere in his carriage, driven by two horses, on road. A vicious dog
started following the carriage and repeatedly attacked the horses and came into defendant's
compound. The defendant tried to prevent him but of no avail. Finally, the defendant took out the
spear and attacked the dog and the dog got injured and later on died due to severe injury. On a suit
filed by the plaintiff, the court observed that the defendant was justified in his action since he was
tried his level best to scare off the dog but in spite of his attempts, he could not succeed and then
only resorted for final blow.

10. Statutory Authority

Q. Defining the term `statutory authority', discuss the case Chandram Nagaram Rice & Oil Mills
Ltd., Gaya v. Municipal Commissioner of Purulia.

The Parliament enacts the law at the same time, it has also the power to reverse any principle of
common law. Any act or omission tortious under the common law may be specifically made legal by
a statute and in that respect, statutory authority is a defence.

Bhogilal v. Municipality of Ahmedabad, 3 Bom LR 415.

In this case, Municipality of Ahmedabad demolished a wall of plaintiff under their statutory powers.
The roof of plaintiff also collapsed in the process. On the points raised by the plaintiff, the court held
that no suit will lie against the defendant, as they have carried out their duty under statutory powers
although the plaintiff has suffered injury. The power (statutory) has been exercised with judgment
and caution.

Chandram Nagaram Rice & Oil Mills Ltd., Gaya v. Municipal Commissioner of Purulia, AIR 1944 Pat
408.

The plaintiff loaded 1000 canisters of mustard oil in a van belonging to Eastern Railways from Gaya to
be sent to Purulia, West Bengal. As soon as, it reached Purulia, the local Municipal Commissioner
seized the consignment, under the Bihar and Orissa Municipal Act, section 287. The seizure was to
check the quality of the oil whether it was good or bad. After seizure of oil, it was loaded in a
scavenger's truck by mehtars (sweepers).

The plaintiff brought a suit against the defendant on the ground that it has caused damages to their
finances as well as reputation (branded name). The Court observed that the defendant in order to
prevent beri-beri a disease within the municipality acted in haste and that the action of the
municipality, if not actuated by malice or a result of conspiracy was certainly unreasonable and
negligent. Justice Varma observed-"if a person is exercising his rights under a statute he is not liable
unless it is proved that he acted unreasonably and negligently."

Absolute, mandatory or imperative authority

Q. Discuss absolute, mandatory or imperative authority.

Some powers which are conferred by the legislature for a particular thing to be done regardless of
whether it inflicts an injury upon another person, it is called as absolute, mandatory or imperative
authority. In case of harm, it is being covered by the authority e.g., to construct the railway line,
there may be need of acquiring private land. But, in such cases the land owner will be suitably
compensated. But, running a train without causing noise or vibration is impossible and for such
complaint there is no remedy.

If, the legislature has authorized certain act and the authority given is imperative, no action would lie
against the person who has the statutory authority to do the act, provided it is done without
negligence. This statutory authority not only extends to the act itself, but to all its necessary
consequences.

In cases viz. Nirmal Chandra Sanyal v. Municipal Commissioner of Patna, MANU/WB/0264/1936 : AIR
1936 Cal 707 and Bhogilal v. Ahmedabad Municipality, MANU/WB/0264/1936 : AIR 1936 Cal 707, it
was held-"When the Legislature has authorized an act, it must be deemed also to have authorized by
necessary implication all inevitable results of that act."

Faiyaz Hussain v. Municipal Board of Amroha, MANU/UP/0108/1938 : AIR 1939 All 280.

During the observation of Muharram, the Shia Mohammedans contended that they had right to take
out tazia of 27 feet in height during procession in Amroha by certain fixed routes. There were electric
wires in the route of procession which was hurdle in taking out tazia of 27 feet in height. It was
contention of the plaintiff that the defendant must raise the electric wire to such a height that could
not interfere with tazia.

It was the observation of the court that when according to the true construction of a statute the
legislature has authorized certain act and the authority given is merely permissive and not
imperative, the legislature must be held to have intended that the execution of work permitted must
be done in such a way as not to prejudice the common law rights of others. Iqbal Ahmad, J.
observed-"there is nothing on the record of the present case from which it could be argued that the
fixing of the wires at the height of 27 feet was an impossibility or that some other arrangements
could not have been done so that the inherent right of the plaintiff was not to be interfered with......"
and the appeal was allowed.

11. Act of State

Q. Define the `Act of State' with the help of relevant cases.

The sovereign power always rests with the State. The State has right to enact a law to protect its
citizens and itself. Sovereign powers fall outside the province of municipal law. When the supreme
i.e., sovereign power is exercised by the State, it is called as 'Act of State'. The act of State in the
present context means under the authority of government to a foreign State or a subject of a foreign
State who is not residing in India, at the time of injury done to him.

The essence of the act of State is that State being sovereign cannot be sued in its own courts (i.e.
Municipal courts) for any injury done/inflicted to a foreign State or its subject.

Tanjore case, Lord Kingsdown observed

'The transactions of independent States between each other are governed by other laws than those
which municipal courts administer. Such courts have neither the means of doing what is right nor the
power of enforcing any decisions they make.'

Jehangir v. Secretary of State, (1904) 6 LR 131 (DB).

In this case, the Government's contention was that to appoint or dismiss a Government servant was
an act of State and hence, the court had no jurisdiction. But Batty J. outrightly rejected the
contention of the Government defined the phrase 'act of State' as - it is a term which is not
applicable to an action of the sovereign towards its own subjects in its own territory in time of peace.
The expression is usually applied to an action of the sovereign towards foreign subjects, whether it
be in time of peace. It would, however, be a misnomer to call the administrative acts of a sovereign
against its own subjects in time of peace as acts of State and to claim immunity in respect of them
although they may amount to a contract in the ordinary sense between the sovereign and his
subjects.

Some more features about 'Act of State':

· it operates extra territorially,

· it doesn't operate against its own subjects,

· it operates against aliens and foreign subjects having no protection of municipal law.

A very pertinent question arises here that whether a person can be treated as a subject of that State
which is de facto control of another State in which he resides? Can the action against that person by
the State, having de facto control, be treated as act of State. We can try to find the answers of above
questions in following case.

State of Saurashtra v. Mohammad Abdullah, MANU/SC/0091/1961 : AIR 1962 SC 445: (1962) 3 SCR
970.

The defendant held rights of properties which was granted by the Nawab of erstwhile State of
Junagarh. After passing of the Independence Act, 1947, Junagarh became a sovereign but unlike
other States did not accede to India. The Nawab left for Pakistan and there was chaos in the State.
The administration of Junagarh was taken over by the Government of India on 9th November, 1947
at the request of Nawab's Council. The Government of India appointed an administrator to
administer the State.

In 1948, the people of the State through a referendum voted in favour of accession of State to India.

On 21st January, 1949, Junagarh State was merged into United States of Saurashtra.

So, the control of Junagarh with the Government of India was de facto from 9-11-1947 to 20-1-1949,
and the control was de jure from 21-1-1949 onwards. The Administrator appointed by Government
of India cancelled the grants on 18th November, 1947 made by the Nawab to the respondents.

Now, the question before the court was - whether the action of the Administrator was justified i.e.,
was it within the ambit of 'act of State'? The Supreme Court observed that the orders of the
administrator arose out of and during an act of State over which the municipal courts had no
jurisdiction. Das J. observed that even though de facto control of Junagarh State was taken over by
the Government of India on 9th November, 1947 but there was no de jure change of sovereignty
until January 20, 1949. The respondents were aliens against whom the orders of the administrator
were an act of State.

But it has to be kept in mind that where the action has been taken against the subject after taking
over de jure control of the State, it will not amount to act of State.

12. Judicial Acts

Q. Give salient features of `Act of State' Discuss it in the light of the observation given by the
Supreme Court in the case. The State of Saurashtra v. Mohammad Abdullah.

In Anderson v. Gorrie, (1859) 1 QB 668 (671), it was observed that if a judge or a judicial officer acts
within his jurisdiction then no action lies for acts done or words spoken by a judge in the exercise of
his judicial office, although his motive is malicious and the acts or words are not done or spoken in
the honest exercise of his office. The rule of judicial immunity from liability is based on the principle
for the benefit of the people with a view that judges/judicial officers discharge their duties without
fear of consequences.

There is also remedy if the judicial error has been committed in the form of appeal to higher Court
and the judicial corruption can be removed through criminal prosecution.
The above rule of English Law has been extended to judicial officers in India by the Judicial Officer's
Protection Act, 1850. Section 1 of the Act provides:

"No Judge, Magistrates, justice of peace, collector or other person acting judicially shall be liable to
be sued in any civil court for any act done or ordered to be done by him in the discharge of his
judicial duty, whether or not within the limits of his jurisdiction, provided that he at the time, in good
faith, believed himself to have jurisdiction to do or order the act complained of......"

Under this Act, the officer must be acting judicially to claim the protection and that mere fact of his
being a Judge, Magistrate, or other judicial officer, does not protect him as he might be acting in his
executive capacity.

CHAPTER 6

Remoteness of Damage

1. Introduction

A person who commits a negligent act and injures someone, then certainly he should be punished
for his wrong act. But, the question arises upto what extent he should be punished? Secondly, can he
be held liable for all the consequences, which have resulted from his act? But, it would not be proper
that a man can be held liable ad infinitum.

Bacon in 1630-'In jure non remota causa sed proxima spectatur' - a maxim for negligent actor. He
elaborated it as - "it were infinite for law to consider the causes of causes, and their impulsions one
of another: therefore it contenteth itself with the immediate cause, and judgeth of acts by that
without looking to any further degree".1

But, the whole meaning of law can't be squeezed from one maxim.

Lord Summer in the case Weld Blundell v. Stephens, 1920 AC 986.-'The object of a civil enquiry into
cause and consequences is to throw liability on some responsible person and to give reparation for
damage done...... The trial of an action for damage is not a scientific inquest into a mixed sequence
of phenomenon, or an historical investigation of the chapters of events........ It is a practical inquiry'?

We can further add here that to understand the remoteness of damage, it is necessary to fix the
consequences of act somewhere otherwise it would be endless. Therefore, in law people are held
responsible for the consequence which are not remote.

Prior to discussing 'remoteness of damage' there are three things which have to be looked upon first-

(a) in every case there is a duty of care owed to the plaintiff and the test of duty depends on what a
person can foresee;

(b) whether a breach of duty has been committed and the test of breach of duty depends on the
person that he acted like a reasonable and prudent person; and

(c) if the negligent breach of duty was a cause of injury when, the above three preliminary conditions
- duty, breach of duty and cause of

1. Bacon, Maxims of the law, 1630 Reg 1.

injury are proved in favour of plaintiff then only the fourth criterion i.e. remoteness of damage
comes into play.

Remoteness of damage is decided on the basis of the principles laid down by the Court in various
cases.

2. Test of Remoteness of Damage

Q. Define `Remoteness of Damage' What are those criteria which should precede while invoking
the rule of remoteness of damage?

Q. Define `direct consequences'in light of the observation given by Scrutton LJ, in the case Polemis.

Q. What is the difference in between the judgments given in the case Polemis and Liesboch case?

There are two views on the test of remoteness of damage:

(i) Pollock-he said that the consequences are too remote if a reasonable man would not have
foreseen them as it was observed in the case Rigby v. Hewitt, (1850) 5 Ex 240.

(ii) As it was observed in the case Smith v. L&S W. Rly., (1870) 3 KB 577, that if a reasonable man
would have foreseen any damage to the plaintiff as likely to result from his act, then he is liable for
all the direct consequences of it suffered by the plaintiff, whether a reasonable man would have
foreseen them or not.

Polemis (in re:) this second rule was favoured while delivering the verdict in the case Polemis and
Furness - A ship was hired under a charter which exempted both the ship-owner and the charteres
from the liability for fire. Petrol in tin was loaded on the ship and during the loading tin got leaked
and thus vapour was formed in the storage. At Casablanca port, while uploading the cargo a servant
carelessly dropped a plank which caused fire in the ship. The ship was destroyed. Some damage to
the ship may be forseeable but to get destroyed completely by fire was not. Hence, the Court of
Appeal held defendant liable for the consequences arisen out of the negligence. Scrutton L.J;
defined, direct, consequences as - To determine whether an act is negligent, it is relevant to
determine whether any reasonable person would foresee that the act would cause damage; if he
would not, the act is not negligent. But, if the act would or might probably cause damage, the fact
that the damage in fact caused is not the exact kind of damage one would expect is immaterial, so
long as the damage is in fact directly traceable to the negligent act, and not due to the operation of
independent causes having no connection with the negligent act, except that they could not avoid its
results. Once, the act is negligent, the fact that its exact operation was not foreseen is immaterial.
This was the principle laid down in the case Smith v. L&S. W. Rly., the judges of Polemis followed this
principle and observed that once the negligence in act may cause injury and is foreseeable, then any
person in such situation may recover even though it is unforeseeable that he might suffer damage in
any way.

Winfield has elaborated it as - the question of the defendant's initial liability i.e., whether he
committed a tort against the plaintiff, must be distinguished from the secondary question of
remoteness of damage, namely, for what consequences of the defendant's conduct is the plaintiff
entitled to recover compensation. The case is no authority for liability to the unforseeable plaintiff.

Liesboch case, 1933 AC 448.

In this case, the defendant had confessed to have sinking the plaintiff's dredger. It was the question
that how much defendant should pay to the plaintiff. Plaintiffs were in favour of the rules of Polemis
(in re:) to be invoked i.e., the wrongdoer should be held liable for all the direct consequences,
whether reasonably foreseeable or not. The House of Lords gave the view that the recovery should
be made for market price of dredger and compensation for loss in carrying out the contract between
the date of sinking of dredger and resumption of work by new dredger, but it was not acceded to for
claim of extra expenses due to poverty.

Lord Wright without over-ruling, elaborated about distinction between the instant case and Polemis
(in re:) as the injury in Polemis (in re:) was the immediate physical consequences of the negligent act
and further said that 'nor is the appellant's financial disability to be compared with that physical
delicacy or weakness which may aggravate the damage in the case of personal injuries, or with the
possibility that the injured man in such a case may be either a poor labourer or a highly paid
professional man'. The former class of circumstances goes to the extent of actual physical damage
and the latter goes to interference with profit earning capacity, whereas the appellant's want of
means was, as already stated, extrinsic. This case gave two points-

(i) it created a distinction between physical disability and plaintiff's impecuniosity; and

(ii) it restricted the Polemis (in re:) rule to only "immediate physical consequences". Regarding
second point, the House of Lords preserved the rule of Polemis (in re:) that if some damage is
foreseeable then he will be liable for all the direct consequences even if unforeseeable provided they
are immediate physical consequences.

Overseas Tankship (UK) Ltd. v. Morts Dock and Engineering Co. Ltd. or Wagon Mound No. 1, (1961)
AC 388.

During bunkering operations in Sydney harbour, from the Wagon Mound a large quantity of oil
spilled over and this ship was under the defendant's control as charterers. The oil reached to
plaintiff's wharf and during a wielding operation in the course of repairs, a molten metal fell and
caused fire and it led to the destruction of wharf as well as vessels kept there for repairing.

In this case, it was laid down by the Privy Council that the essential factor in determining liability for
consequences of a tortious act of negligence is whether the damage is of such a kind as a reasonable
man should have foreseen, and, further, that a man should not escape liability however 'indirect' the
damage, if he foresaw or could reasonably have foreseen the intervening events...... Applying that
test in the instant case, it appears to me that, in the conditions prevailing in East Africa, it is to be
foreseen that a traffic accident may result in a vehicle involved being left unattended though no fault
of the owner, and that in such a case loss of the contents of the vehicle through pilferage is not
merely foreseeable but highly probable.

Judicial Committee also sidelined the law as was observed in the Polemis. Later on, it was pointed
out that the test of directness looked at the happenings, after the event, it was further observed.
'After the event a fool is wise. But it is not hind sight of a fool: it is the foresight of a reasonable man
which alone can determine responsibility.'

Hughes v. Lord Advocate, 1963 AC 837.

The employees of the Post Office left an open manhole (opened by them) unattended in the evening.
The manhole was covered by a tent. A paraffin lamp was also placed there. Two children (8 & 10 yrs.
old) took the lamp and entered the manhole. The lamp was somehow knocked into the hole and a
violent explosion took place and the flames shot thirty feet into the air. The plaintiff was knocked
back into hole and received serious burns. The court was of the view that it was reasonably
foreseeable that the children would play with the lamp which was unattended and it might also
cause burn injuries, but it was unforeseeable that a paraffin lamp would explode and would cause
serious burn injuries. In following words, the Law Lords held the defendants liable-

Q. The defenders are liable for all the foreseeable consequences of their neglect—Explain this
Observation of Lord Pearce in the case Hughes v. Lord Advocate.

"In order to establish a coherent chain of causation it is not necessary that the precise details upto
the accident should have been reasonably forseeable: it is sufficient, if the accident which occurred is
of a type which should have been foreseeable by a reasonably careful person. An explosion is only
one way in which burning can be caused. Burning can also be caused by the contact between liquid
paraffin and a naked flame. In the one case paraffin vapour and in the other case liquid is ignited by
fire. I cannot see that these are two different types of accident. They are both burning accidents and
in both cases the injuries would be burning injuries. Upon this view the explosion was an immaterial
event in the chain of causation. It was simply one way in which burning might be caused by the
potentially dangerous paraffin lamp..... The defender cannot escape liability by contending that he
did not foresee all the possibilities of the manner in which allurements - the manhole and the lantern
would act upon the childish mind"

In the words of Lord Pearce - the defenders are therefore liable for all the foreseeable consequences
of their neglect. When an accident is of a different type and kind from anything that a defender could
have foreseen, he is not liable for it. But to demand too great precision in the test of forseeability
would be unfair to the pursuer since the facets of misadventure are innumerable. The accident was
but a variant of the foreseeable.

Lord Reid observed that the fact that the injuries suffered by the appellant, though perhaps different
in degree, did not differ in kind from injuries which might have resulted from an accident of a
foreseeable nature. The cause of this accident was a known source of danger, the lamp but it
behaved in an unpredictable way.

The House of Lords held that it was unpredictable that a lamp might explode, but the defendants
were in breach of duty in leaving the manhole unattended because they should have reasonably
anticipated that boys might take lamp into the shelter and that, if the lamp fell and broke, they might
suffer injury from burning. So the lamp, a known source of risk, caused injury through an
unforeseeable sequence of events, but the defendants were held liable. It is, therefore, not
necessary that the precise details leading upto the accident should have been reasonably
foreseeable. It is sufficient, if the accident which occurred is of a type which should have been
foreseeable by a reasonably careful person.

3. Extent of damage

Here, we are talking about the injury - physical as well as of property. In case of damage of property,
the compensation can be calculated but it is always a cumbersome process to make estimate about
physical injury. It is difficult to repair/rectify the injury by damages, nor is sanctity of life upheld by
their award. The test of reasonable foresightedness towards a normal healthy person should be
followed in the absence of any logical reasoning, rather than what the law is being followed today,
unless overruled, that the extent of damage if aggravated due to some weakness, which is inherent
in nature, full liability is attached in the case of people as it was observed in the case Smith v. Leach
Brain & Co. Ltd., (1962) 2 QB 405.

Can the rule regarding the degree or extent of damage to property-that 'defendant takes his victim as
he finds him' be applied to dilapidated and weak property? The answer of this question is still
awaited. In the case, Liesboach Dredger v. S.S. Edison, 1933 AC 448, the House of Lords, while
restricting the rule of Polemis (in re:), stated the principle of 'immediate physical consequences' in
relation to extent of damage to property.

4. Ways or Manners of Causing the Damage

Foreseeability is not the only criteria but what are the ways or manners in which damage has been
caused should be foreseeable.

In the case Hughes v. Lord Advocate, 1963 AC 837, the House of Lords observed that the chain of
events leading upto the injury is not relevant so long as the wrongful act could be foreseen as a
possible factual cause of the kind of injury. This principle does agree with the direct rule of Polemis
(in re:) as far as manners are concerned, and thus the basic rule of reasonable foresight laid down in
the Wagon Mound No. 1, has been rejected by the House of Lords and East African Court of Appeal.
In Doughty v. Turner Manufacturing Co. Ltd., (1964) 1 QB 518, the unforeseeable 'manner or ways'
which created the effects of wider range than reasonably foreseeable, the Court's view was that
'ways or manners' were relevant. In this case, the injury was received by the plaintiff, not by the
splashing of liquid in a vat, when the lid fell into it, but by the effervesence resulting from the
interaction of the material from which the lid was made with the substance in vat. The Court of
Appeal observed that the extent of the effects of the effervesence was wider than would have been
the extent of any splashing caused by the fall of the lid. Hence, there was no liability.

Hughes and Doughty cases can be distinguished but the line of distinction is very thin.

5. Kinds of Damage or Injury

Q. Upto what extent kinds of damage or injury can influence the verdict in a case? In the light of
the observation given by the court in the case Tremain v. Pike define the term element of
foreseeability.

In the case Tremain v. Pike, 1969 WLR 1556, the plaintiff was employed as a herdsman contracted a
rare disease - leptospirosis, which is caused through contact of rat's urine. It was not earlier known to
farming community nor it was prevalent in the area. The learned judge observed that the defendants
were not liable because they could not have realized as reasonable men the extent to which the farm
was infested with rats so as to give rise to any sort of danger whatsoever from their presence. The
learned judge further observed that even if the defendants had been in breach of duty, in that they
ought to have known of the extent of the infestation by rats and ought to have foreseen that the
plaintiff was or might be exposed to some general hazard involving personal injury, illness or disease
in consequence of such infestation, they were still immune from liability on the ground, that the
disease of leptospirosis was at best a remote possibility which they could not reasonably foresee.
The learned Judge held that disease in question was 'not comparable to other human disabilities
which may flow from an infestation of rats'.

Here the disease was caused due to contact with rat's urine. That was entirely different in land from
the effect of a rat bite or food poisoning contaminated by rats. In this, he relied by way of
comparison and contrast, upon the earlier decisions in Smith v. Leach Brain & Co. Ltd., (1962) 2 QB
405 and Brandford v. Robinson R. Ltd., (1967) 1 WLR 337. He held further that in those cases, the risk
of injury from a burn or from extreme cold was foreseeable and it was only the degree of injury or
the development of the sequela was not foreseeable.

From this judgment, it can be construed that how narrow level of abstraction in respect of
foreseeable damage was invoked by the learned judge in order to determine the liability of the
defendant. Tremain case differentiated between injury from rats by biting and injury from rat's
infection. It may further be said that the only real type of injury to be considered was injury by rats,
however the precise injury was suffered and the rationale of these distinctions is said to be the
element of forseeability.

6. Conclusion

The liability has become remote with the development of remoteness principles in English Law.

In the Wagon Mound No. 1, their Lordships discussed the moral and social consequences of the
correct approach to the problem of defining the duty of care of the remoteness issue. But, in the
extensive and ever-widening field, its principle has no place whatsoever in recent times. The
foreseeability rule in relation to remoteness, as said earlier, has already been rejected in respect of
degree or extent of damage, physical disability, financial disability and the manners or ways in which
a foreseeable kind of damage is caused.

In India, the law is followed usually on English lines and most of the times, the justice is done in
favour of defendants whatever analysis of negligence is invoked or distinctions are made, they must
stem from the ultimate desire and purpose of the law to achieve a just result in any given case.

CHAPTER 7

Personal Capacity

1. Introduction

The general rule in the law of torts is that every person is entitled to sue and are also liable to be
sued. But, there are some exceptions to this rule. The exceptions may be studied under following two
heads:

(a) Who cannot sue? and

(b) Who cannot be sued?

(a) Who cannot sue?

(i) Convict

(ii) Alien Enemy

(iii) Married Woman

(iv) Husband & Wife

(v) Bankrupt

(vi) Infant/Minors

(vii) Corporation

(viii) Foreign State

Convicts and persons in custody

Q. Categorise the person/entity who can sue and can be sued. Can a person who is in prison can
file a writ for protection of his rights? Explain it.
A felon or convict is a person against whom judgment of death or penal servitude has been awarded
on any charge of treason or felony. In the case D.B.Y. Patnaik v. A.P., MANU/SC/0038/1974 : AIR 1974
SC 2092: 1975 Cr LJ 556: (1975) 3 SCC 185: (1975) 2 SCR 24, it was held that convicts are not, by mere
reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A
compulsion under the authority of law, following upon conviction, to live in a prison house entails by
its force the deprivation of fundamental freedoms like the rights to move freely throughout the
territory of India or the right to practice a profession. A man of profession would thus be stripped of
his right to hold consultations while serving out his sentence. But the constitution guarantees other
freedoms like the right to acquire, hold and dispose of property for the exercise of which
incarceration can be no impediment. Likewise, a prisoner or even a convict is entitled to the precious
right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal
liberty except according to procedure established by law. It was also observed in the case Sunil Batra
v. Delhi Administration, MANU/SC/0184/1978 : AIR 1978 SC 1675 (1727): (1978) 4 SCC 494: 1978 Cr
LJ 1741: (1979) 1 SCR 392, that conviction of a person, thus does not draw any iron-curtain between
him and his rights and he is not reduced to a non-person.

Where the wrong is not with respect to property, but to the person, as for example, assault or
slander, it would be open to the convict to maintain an action.

In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav, MANU/SC/0106/2005 : (2005) 3 SCC
284 (311): AIR 2005 SC 972: 2005 (1) BLJR 631: 2005 Cr LJ 1441: JT 2005 (2) SC 450, it was observed
that a Member of Parliament is not above the law as an undertrial prisoner and is subjected to jail
discipline. If, he has won an election (contesting from jails), he can be allowed to take oath as an
M.P., but he has to be brought back to jail after taking oath.

But, a prisoner can't have 'residual liberty' to sue for false imprisonment for breach of prison rules, if
he is segregated in breach of these rules he can challenge the segregation by writ petition and if
conditions in which he is living is inhumane and he suffers with health problem then he may also
have a private law remedy of suing in negligece. Hague v. Deputy Commissioner of Parkhurst Prison,
(1991) 3 All ER 733 (HL).

Alien Enemy

Alien Enemy is a person of enemy nationality or a person residing in or carrying on business in enemy
territory, whatever his nationality. Since, the residence in enemy territory is the real test, even a
citizen of India resident there will fall within the description. An alien enemy who is residing outside
India or in India without the permission of the Government cannot sue in an Indian court. He can sue
only, if he is residing with the permission of the Government.

Married Woman

A married woman can't sue without her husband being joined as a party. But, under the Law Reform
(Married Women and Tortfeasors) Act, 1935, she can sue if she were a feme sole.

Under section 7 of the Married Women's Property Act, 1874, a married woman may sue in tort just
as a feme sole and in process if she recovers any damage, it becomes her sole property and any
damage recovered against her are payable out of her separate property. But, this Act doesn't apply
to Hindus, Sikhs, Jains and Muslims and these communities are governed by their personal laws.
According to personal laws of these communities, a woman can sue in respect of her separate
property without joining her husband in the suit.

Husband and Wife

Q. Whether a wife can maintain an action against third party for the injuries committed by her
husband? Discuss it with the help of relevant cases.

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. After the Law Reform (Husband and
Wife) Act, 1962, each of the parties to a marriage has the same right of action in tort against each
other as if they were not married but it also depends on court to stay the proceedings if it feels that
the matter relates to trivial issues.

Section 7 of the Married Women's Property Act, 1874-

"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."

There is a very pertinent question here - whether a wife can maintain an action against third party
for the injuries committed by her husband? We can understand this situation if we look into the facts
and decisions in following cases:

Smith v. Moss, (1940) 1 KB 424.

Here, the wife got injured owing to the negligence of her husband while he was driving the car as
agent for his mother. But, in such cases, the wife can't sue her husband as in the eyes of English
Common Law, both husband and wife are considered as one entity. But, it was observed that the
wife could hold his master vicariously liable on the ground that 'others may not hide behind the
skirts of (marital) immunity.

Here, the husband's freedom from liability is based on an immunity which is personal to him.

Broom v. Morgan, (1959) 1 All ER 849.

In this case, the plaintiff and her husband were working as a helper and manager to the same
employer. The plaintiff (wife) sustained injuries due to the negligence of her husband. She sued the
employer for damages. In defence, it was the plea that the wife cannot maintain a suit against her
husband, it would also immune the master for whom he was working. The defendant's plea was
rejected and the court followed the decision of Smith v. Moss. Singleton, L.J., stated-

"The fact that a wife has no right of action against her husband in respect of his tortious act and
negligence does not mean in law she has no right of action against her husband's employer if he,
when he did that negligent act, or made that negligent omission, was acting within the scope of his
employment. They remain liable, and there is no reason either in law or in commonsense why they
should be given an immunity which springs, in the case of husband and wife, from the fiction that
they are one and from the desire that litigation between husband and wife shall not be encouraged."

In India, 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 course 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.

Bankrupt or Insolvent

Q. Whether an employer is vicariously liable to the servant's wife for the tort of his servant?
Discuss it with the help of relevant cases.

If an insolvent commits a tort, its liability is not a debt provable in insolvency and is not discharged by
insolvency. But, an insolvent may be sued for a tort committed by him either before or during
insolvency and in case of decree against him, the amount thus awarded is a debt provable in
insolvency.

But a bankrupt or insolvent cannot sue for wrongs in respect of his property since all his property
vests in a Trustee in bankruptcy according to English Law, or the Official Assignee or the Official
Receiver in India.

Infant/Minors

Q. What are the rights of infants who are still in the womb of his mother?

Q. Can a person be held liable for causing injuries to childenventresa mere under Indian Law?

An infant or minor may sue with the help of his next friend (usually father) if any wrong has been
done to him. But, if an infant who has sustained injuries when he was in the womb of his mother can
maintain an action for injuries is yet to be answered.

In the case Walker v. G.N. Rly., (1890) 28 LR Ir 69, a child was borne crippled and deformed after an
accident to it enventresa mere (i.e. when he was in mother's womb) owing to the negligence of
company, while the mother was travelling on its line. The railway company was not held liable due to
two reasons:

First-the railway company owed no duty of care towards the child since there was no contract with
the child, or the company did not know the existence of child at all. Second-the medical evidence to
establish the claim was also uncertain.

In England, the British Parliament passed the 'Congenital Disability (Civil Liability) Act, 1976', by
which an action for the injury to unborn child has been permitted in some cases. If someone's
wrongful acts hamper growth of the unborn child in mother's womb resulting in disabled and
abnormal infant then the action may lie against the wrongdoer. Even father can be held liable for his
wrongful act which cripples the growth of child under this act. The mother can be held liable for
disabilities to child if she is found guilty of negligent driving of a motor vehicle. Damages for the loss
of expectation of life of a child can be claimed provided the child lives for at least 48 hours after his
birth.

But, we, in India lack such Act but rights of unborn child are recognised in Hindu Law. The child in
womb has right to share in the property. Causing death to unborn child, abortion and miscarriage are
also made penal offences under sections 312, 313 and 316 of the Indian Penal Code.

Corporation

Q. Define corporation can it be called a legal person and be sued for its torts?
A corporation is considered as a legal person. Its features lie in name, perpetuity of existence and
capacity to sue and be sued.

(A) 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.

In Mayor of Manchester etc. v. Williams, (1891) 1 QB 94, it was observed that a corporation cannot
maintain an action for libel charging it with corruption for it is only individuals and not the
corporation who can be guilty of such an offence.

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. It may thus be liable for assault, false imprisonment, trespass, conversion, libel or
negligence.

The definition of Corporation can be understood with the explanation of Viscount Haldone LC in the
case Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd., 1915 AC 705 (713): 113 LT 195 (HL), as-

"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."

Foreign Sovereigns

No action lies against any foreign sovereign. No court can entertain an action against a foreign
sovereign for anything done, or omitted to be done, by him in his public capacity as representative of
the nation of which he is the head; De Habar v. The Queen of Portugal, (1851) 17 QB 171. To have a
residence in a foreign territory does not lead to a waiver of immunity or submission to local courts.

(b) Who cannot be sued?

(i) Sovereign or King

(ii) Act of State

(iii) Foreign Sovereign and Ambassador

(iv) Infant/Minors

(v) Lunatic

(vi) Drunkard

(vii) Corporation

(viii) Trade Union

Sovereign or King

'The King can do no wrong' is the maxim on which the immunity of the crown from civil liability is
based. So, an action for personal wrong will not lie against the Crown. By, 'the Crown Proceedings
Act, 1947' while changing the old law. It also preserved the rule that no proceedings can be brought
in tort against the crown in a private capacity.
In our country 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, or (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
Civil Procedure Code, no ruler of any former Indian State may be sued in any court except with the
permission of the Government of India.

Act of State

If Act is done in exercise of sovereign power in relation to another State or subjects of another State
which cannot be questioned by municipal courts is called as 'Act of State'. Acts done by rulers in
exercise of political power to the people of another State are Acts of State and, therefore, they are
exempted from liability. If a foreign national gets injured in course of exercising some sovereign
power, he can get remedy through diplomatic means. Some salient features of an Act of State are:

(A) The act is done by State's representative,

(B) The act is injurious to other State or its subject,

(C) Such acts are done either with the prior sanction or is subsequently ratified by the State.

Foreign Sovereign and Ambassador

In English Law, the courts have no jurisdiction over an independent foreign sovereign, unless he
submits to the jurisdiction of the court as it was observed in the case Mighell v. Sultan of Johore,
(1894) 1 QB 149. The same protection is also available to a diplomatic agent or ambassador and his
family.

In India, section 86 of the Civil Procedure Code says that no ruler of a foreign State may be sued in
any court except with the permission of the Government of India and it should be certified in writing
by a secretary to that Government. Same immunity is extended to an ambassador or diplomatic
agent and his family.

Infant/Minors

Q. Can a minor be held liable for his torts? Describe it in the light of observation given in the case
Swarup Kishore v.Goverdhandas.

In India, below the 18 years of age, a boy or girl is called as minor. A minor or infant is equally liable
for his torts as an adult person. Knowledge, intention or malice is a necessary ingredient in
constituting a tort and infancy is a good defence in case he has not attained sufficient maturity of
understanding.

In the case Swarup Kishore v. Goverdhandas, AIR 1956 MB 84, the defendant slapped the plaintiff in
presence of several persons. The defendant was a 16-year old boy and the defense plea was that
defendant can't be held liable in damages as he was a minor. But this contention was rejected by
Justice Dixit who observed that a minor can be held liable for his torts as an adult. The rule of
exemption from liability for a minor has no applicability in conduct tortious in itself and in its very
essence-"It is only in those cases where an act is innocent in itself but become 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 defendant becomes relevant."

Lunatic
Q. Can insanity be considered as a defence in tort? Do you agree with the statement that if the
nature and quality of act are known to the defendant then no defence is available for the
defendant?

Liability lies with lunatic is same as with infants. It has been said that insanity by itself is not a
defence in tort. But in malice insanity presents a good defence to the existence of such malice or
intent.

If the person does something which is not voluntary, but the act of automation, like the act of a fever
patient in his delirium or a somnambulist in his sleep or of an epileptic in his paroxysm, and for such
act, defendant is not liable.

The degree of insanity has to be decided in each case and it depends on the facts and circumstances
of the case to decide about the liability.

If the nature and quality of act are known to the defendant then no defence is available for the
defendant.

Ranganagulu v. Mullackal, MANU/KE/0009/1974 : AIR 1974 Ker 25 (Vol. 61, c. 9), is an important case
to be mentioned here. Ranganagulu, the appellant was a regular visitor from Ramnad district who
used to visit Mullackal temple at Alleppey to worship there. Once, he entered the temple with shirt
and shoes and broke the idol of the deity. He was handed over to the police. The police suspected
him as an insane and kept him under surveillance of a doctor. The doctor observed that he was
indifferent to the surroundings, does not sleep at night, talks incoherently, laughs without any reason
and declared him as an insane. After cross-examination, the doctor admitted that these conditions
can't be held as sufficient to say that he was insane, if considered individually. But, if put all these
pieces together, we can say that he is insane. The Court stated that this evidence is not sufficient to
hold that the appellant was not in a position to know the nature and quality of his act, nor his acts
were involuntary. The Court held that the appellant was liable and stated that 'much importance
should not be attached to the medical certificate, at any rate, it is not possible to hold that the
appellant was incapable of understanding the nature and quality of this act; obviously, the
appellant's act in breaking the idol was not an involuntary act either - the act of an automation. Even,
if he was under the impression that he had the right to enter the sanatorium of the temple or he was
not aware of the consequences of his act, still, if he knew the nature of his act and if the act was not
an involuntary act, he is liable for the act if the act is tortious.

Drunkard

In the law of tort, drunkenness is not considered as a good defence. It is every man's sense to know
the consequences of what he does. If a man drinks and does the things and thinks that he would not
be liable for his act in this state then he is wrong. But, if A administers intoxicants 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 is considered as a person in the eyes of law and is vicariously liable for the acts of its
servants or agents in the course of their employment. It can be held liable for torts like false
imprisonment, conversions, libel, trespass or negligence.

We can mention here the case of T. Pillai v. Municipal Council, MANU/TN/0204/1961 : AIR 1961 Mad
230, in which plaintiff had a pet dog and it was killed by the municipal employee in course of killing
stray dogs in the municipal area. The court had observed that the defendant was liable and remarked
- 'the corporation is a fictitious and legal persons having an entity in law distinct from its members
and by its very nature can only act through its servants or agents, and not in propria persona and the
corporation is as much liable in an action in tort as an individual. Whatever difference of opinion
there may be on the question of legal doctrine as to how far an agent or servant of a corporation can
be said to act within the scope of his employment in respect of a tort which is ultra vires the
corporation, there is consensus of authority for holding that a corporation cannot be immune from
liability in respect of tort brought about at its instance on the ground that the act was not intra vires
the corporation.

Trade Union

A trade union can be a body corporate if it is registered under section 13 of the Indian Trade Unions
Act, 1926 and can sue and be sued. If, a trade union is not registered then under Order 1, rule 8 of
the Code of Civil Procedure, 1908 any one or more of its members may be sued as representing the
trade union. Members of a registered trade union are exempted from liability in respect of certain
torts.

CHAPTER 8

Joint Tortfeasors

1. Independent Tortfeasors & Joint Tortfeasors

Define independent and joint-tortfeasors with suitable examples.

Sometimes, same damage is caused to one person by several wrongdoers and they may be either
independent tortfeasors or joint-tortfeasors.

When a person causes the damage by independent wrongful acts; they are called as independent
tortfeasors whereas joint-tortfeasors cause the same damage to fulfil their common ambition. To be
joint-tortfeasors, it is essential that the persons should have the same mental level or intent. In the
case, The Koursk,1 the Court of Appeal distinguished in between independent and joint-tortfeasors
as-"Persons are said to be joint-tortfeasors when their respective shares in the commission of the
tort are done in furtherance of a common design but mere similarity of design on the part of
independent actors causing independent damage is not enough there must be concerted action to
common end".

Example.-There are two persons, A and B both are driving their cars and they have a bet who will
reach first to the car of C. In doing so, both drive very fast and collide with the car of 'C'. C gets
injured. Here both A and B will be held liable as joint-tortfeasors. But, if A and B are going driving
their respective cars and have no such plan and meet with such accident with C then both A and B
will be considered as independent tortfeasors.

2. Joint Tortfeasors

The joint liability arises under three following circumstances:

Agency-When someone appoints a person to act on his behalf and if any tort is committed by such
person then both the persons, principal as well as agent are jointly as well as independently liable
and they are treated as joint-tortfeasors.

Vicarious liability-If, a person is held liable for the tort committed by someone else under special
relationship then it will be a joint liability and both are tortfeasors.
Joint or common action-When a group of two or more persons join together for a common action
then all the persons who are consisting the groups are jointly and severally liable for a tort which has
been committed in furtherance of an action.

1. Law Reports (1924) Probate Div. 140.

It would not be out of place here to mention that where the damage caused by each of the several
tortfeasors is distinct then each of the tortfeasors will be liable only for the damage which is
attributable to his own act.

In Machindranath Kernath Kasar v. D.S. Mylarappa, the damage is caused by negligence on the part
of the driver of offending vehicle. The Apex Court held that when a damage is caused upon act of
negligence on the part of a person, the said person is primarily held to be liable for payment of
damages. The owner of the vehicle would be liable as he has permitted the use thereof. To that
effect only under the Motor Vehicles Act, both driver and owner would be jointly liable. This,
however, would not mean that they are joint tortfeasors in the strict sense of the term. There exists a
distinction between the liability of the owner of a vehicle which was used in commission of the
accident and that of the driver for whose negligence the accident was caused, but the same would
not mean that the owner and the driver are joint tortfeasors in the sense as it is ordinarily
understood. (MANU/SC/2484/2008 : AIR 2008 SC 2545).

3. Liability of Independent Tortfeasors

Distinguish between liabilities of independent and joint-tortfeasors.

Independent tortfeasors are severally liable for the same damage owing to independent causes of
action. In the case of Thompson v. London County Council, (1899) 1 QB 840, the house of plaintiff got
damaged due to excavation carried out by A negligently and it had further aggravated the damage of
house by B who left the watermain insufficiently stopped. The Court held both A and B liable for
damage but not as joint-tortfeasors as their acts were independent. It was held that the damage is
one but the causes of action which led to that damage are two. Hence, such tortfeasors are severally
liable for the same damage but they are not jointly liable for the same tort.

In the Koursk case,1 two ships Koursk and Clanchisholm collided with each other and in this process,
the ship Clanchisholm ran into another ship Itria and sank the same. The owners of Itria brought the
case against the owners of Clanchisholm and recovered damages but not satisfied with the amount
since Clanchisholm had their limited liability for a lesser amount. Then the owners of Itria filed a suit
against the owners of the Koursk also. It was observed that Koursk and Clanchisholm were
independent tortfeasors and not joint. So, there could be as many causes of action which will
correspond with the number of tortfeasors. Further, the court was of the view that the judgment
delivered in the Clanchisholm did not bar the action against Koursk.

4. Liability of Joint-Tortfeasors

What are those three circumstances in which joint liability of tortfeasors arises?

Three principles have been given in English Common Law regarding liability of Joint-tortfeasors.

First principle Second principle Third principle

Liability of wrongdoers are It was observed in the case A tortfeasor liable in

joint and several i.e., each Brinsmead v. Harrison, (1871)
one is liable for the whole 2 R 7 CP 547, that a judgment damage for his fraud
damage. Here, the injured obtained against one joint or wilful wrongdoing
party may sue them jointly wrongdoer released all the could not recover
or any of them separately others even though it was not contribution or
and the decree against them satisfied. The tort is said to indemnity from a
may be executed against any have merged in the joint tort-feasors.
one of them. judgment.

________________

1. Law Reports (1924) Probate Div. 140.

In Arneil v. Peterson, Brinsmead sued Harrison InMerryweatherv. Nixon,

1913 AC 560, two dogs for recovery of piano. (1799) TR 88, two persons
belonging to two Harrison defended that (X andY) damaged the
different owners Brimsmead has already machinery in Starkey's mill.
attacked a flock of sheep recovered judgment Starkey sued them jointly
and injured many of against his joint- and got judgment for £ 840
them. When the plaintiff tortfeasor. Brimstead had and executed againstX for
was sued, it was claimed this plea that he could the whole.X sued Y for
that he was responsible not realise the amount contribution for £ 420.
for half of the damage. It from tortfeasor hence
But Lord Kenyon dismissed
was held that each this action was brought.
the suit and held that he
owner is responsible for But Blakburn, J. held that
can't obtain it from his joint
whole damage. it will not be permitted.
tortfeasor Y.

But, all the above rules were abolished by the Law Reform (Married Women and Tortfeasors) Act,
1935 and The Civil Liability (Contribution) Act, 1978. The third rule created by section 6(i)(b) of the
Law Reform Act of 1935 was repealed and replaced by section 4 of the Civil Liability (Contribution)
Act, 1978 which will not allow the only recovery of cost in the subsequent suits, unless the court is of
the opinion that there was reasonable ground for bringing the action.

5. Law in India

We don't have any statutory law on Joint-Tortfeasors liability in India. Till 1942, the courts in India
followed the law as laid down in Brinsmead and Merryweather cases but later on the courts
abandoned the law as preached in above cases.

Further, Indian courts also not followed the statutory law of England wherever it was against the
principles of equity, justice and good conscience.

In Nawal Kishore v. Rameshwar, MANU/UP/0172/1955 : AIR 1955 All 594, case Justice Agarwal gave
illustration on this point as-

"there is no statutory law of torts in this country. The courts of this country act on the principles of
equity, justice and good conscience in matters which are not covered by statute and rely upon the
principles established under the English Law to find out what the rule of justice, equity and good
conscience is. Any technical rule or statutory law of England is not as such, considered to be based
on the principle of equity, justice and good conscience, unless it appears to be so to the judge
deciding the case. It appears to us that the rule of law indicated in
Clause 6(1)(b) of the Act, 1935 is not necessarily based on any principle of equity, justice and good
conscience. There is no justifiable reason why, in the subsequent suit, if more than one suit is
brought for damages against different persons, the plaintiff should be restricted to the amount
decreed against the joint-tortfeasor in his suit against the other joint-tortfeasor against whom the
cause of action is not only joint but joint and several."

Kushal Rao v. Babu Ram Ganapat Rao, MANU/NA/0039/1941 : AIR 1942 Nag 52, in this case, the
Chief Justice Stone while discussing the liability of joint-tortfeasors said that the rule in
Merryweather v. Nixon is not consistent with justice, equity and good conscience and should not be
followed in India-"The English rule that there is no right of contribution between joint-tortfeasors
should not be applied to Indian conditions where courts do not merely administer the common law
but decide in accordance with equity, justice and good conscience and where it is very desirable to
exercise the power to differentiate between the various persons held jointly liable at the suit of the
persons injured."

Recently, it has been seen that the Indian courts are tempted to follow or adopt common law of
England if it is in consonance with the principles of equity, justice and good conscience under Indian
conditions.