TORTS

SHORT NOTES

1. DISCHARGE OF TORTS

Meaning of Tort

The word “Tort” is derived from the French word “Tortum” which means “Twisted”.A tort is an
act/conduct that is twisted. It means the violation of a legal right of a person by the act of the other
person, i.e. the breach of the legal right of the other person.

The tort is a civil wrong, but all the civil wrong doesn’t come under the ambit of tort. If one person does
any civil wrong to another person, and that wrong comes under the ambit of tort then the person
against whom the wrong has been done is entitled to get remedy in form of unliquidated damages.

But the law of tort also discusses various methods by which the act of tort gets discharged.

Discharge of Tort

There are seven different modes through which tort is discharged and no remedy will lie for tort. It is a
process through which the tort comes to an end. A wrongdoer is not liable for his actions.

Following are the methods of discharge of torts.

Death of the parties

Here the maxim ‘actio personalis moritur cum persona’ applies which means if the person dies his
personal right of action dies with him.

Actio personalis moritur cum persona this is the important maxim, it means if the person who commits a
tort or the person against whom the tort is committed dies, the personal right or the right to receive the
damages or the right of action dies with the person.

There are two situations where this maxim applies

Death of the person against whom tort was committed i.e., Petitioner.

when the person against whom the tort was committed i.e. the plaintiff who approached the court and
filed a case died, so his personal right of action dies with him only.

Illustration - If A files a case against the act of tort done by B. If A dies during the course of trial and the
case is still pending before the court. Due to the death of the A, the tort gets discharged, as the right of
action of A dies with him only.

Exceptions to the maxim of ‘Actio personalis moritor cum persona’ with respect to Petitioner

In India there are laws which constitute the exception to the above maxim like;
The Legal Representative Suits Act, 1885

As per this Act, the legal representative or the executors of any person, after his death can represent the
deceased person in the court of law.

Illustration - If A died during the procedure of trial of court. His legal heir or representative can
represent him in the court of law.

Similarly, in different laws/act like Fatal accident act, the Indian Succession Act, Workmen Compensation
Act etc. the representative of the plaintiff can represent him in the court of law.

Death of the person who commits tort i.e. Defendant

It means the person who commits the act of tort against any other person i.e. the defendant dies, the
tort gets discharged.

Illustration - If Ram commits the act of tort against Geeta, if Geeta files a complaint against Ram, but if
during the course of trial Ram died, then his right of action also dies with him i.e. the discharge of tort.

In Prusti v. Mohanty

In this case, the defendant received some amount by misrepresentation of fact, but the defendant died.
The High Court of Orissa held that where a money decree was passed against a person in respect of the
amount received by him from the decree-holder by misrepresentation of the facts, the liability would be
personal and could not be extended to his son under the law, as whatever the relief a decree-holder has
against the father ended with the father’s death.

Exceptions to the maxim of ‘Actio personalis moritor cum persona’ with respect to Defendant.

In India there are various laws which constitute the exception to the above maxim like;

The Legal Representative Suits Act, 1885-

As per this act, if any person involved in any type of tortious act, died during the course of the trial. The
right of action passes to the legal representative of that person.

Illustration - If A does an act of trespass to the good against B in past. Now if A dies and it is proved that
he was liable for damaging B’s good. So the damages for damaging B’s good has to be paid by his legal
representative.

Similarly, in different laws/act like the Fatal Accident Act, Indian Succession Act, Workmen
Compensation Act etc. The representative of the defendant has to represent him in the court of law

By Waiver
The second method of discharge of tort is by the waiver. The concept of waiver is when a person has
more that one remedy available to him, as a result, he has to elect one of them. He cannot apply for
both the remedy except in the case of defamation and assault.

Illustration - If A files a case against B that B has committed a tort against A. If A has right to get more
than one remedy he has to choose any one of them, i.e. if he has the remedy in both tort and contract
law, now he has to choose one between them.

The main two principles lying in the doctrine of Waiver are:

The person has to choose any one remedy.

If the person fails to get the remedy he chooses, the court of law does not allow him to go back to an
alternative remedy.

Illustration - If A files a case against Z and has two remedies for which he can approach the court of law.
If he chooses the first remedy and loses the case. A cannot approach to the court for the alternate
remedy i.e., remedy number 2.

The Waiver can be Implied or Express

In Express waiver, the person expressly communicates about his choice in the court of law.

Illustration - If A file a case and he has the remedy in both, contract as well as Tort. When the court asks
him he has to communicate his choice to the court.

In the Implied form of waiver, the person impliedly communicates about his choice for which remedy he
is applying.

Illustration - If A has two remedies available to him like one under contract and one under Tort. if he
applies for Contract, it becomes clear, he elects the remedy under the contract.

Accord and Satisfaction

Concept of accord means when the parties of the tort i.e. the person who commits the tort and the
person against whom the tort has been committed, come to an agreement and settle the dispute. Such
an agreement is known as Accord. In general term, it means settling the issue by accepting some
consideration in lieu of the right of action.

Satisfaction means the actual payment of consideration agreed by both, the person who commits a tort
and the one against whom the tort committed.

When both the accord and satisfaction once completed, it results in the discharge of tort and the
dispute does not proceed in a court of law.

Illustration - If A dies due to injury caused by B’s car. If A’s family comes to an agreement that B will pay
Rs. 1,50,000 as compensation to them, that’s the situation of Accord. When they received the actual
payment of 1,50,000 Rs. from B, that’s the situation of Satisfaction. So, by settling the issue and
accepting some consideration A’s family lost their right of action and the act of tort discharged.

The only condition in the concept of Accord and Satisfaction is the consent of the party should be free
and not from fraud, coercion or undue influence.

Illustration - If A, a son of a successful businessman brutally hit one of his servant i.e. trespass to the
body and if A tries to make his servant enter into accord by using some type of undue influence on him.
Due to that influence, the servant gave his consent, this is not considered as free consent and the accord
and satisfaction are not valid.

Release

A Release means giving up the right to the action. It means when a person by his own choice discharged
the tort. This right is only provided to the person against whom the wrong has been done.

Illustration - Situation 1: A is the person against whom B does any act of Tort and if A, by his free consent
want to release B from the liability, he can do so.

Situation 2: A is the person against whom B and C both commit an act of tort and A by his choice release
B from the liability, this does not mean that C is also released from his liability.

The release should be voluntary and given by free consent from the injured person. If the consent is
taken by coercion, undue influence, or any other unlawful means then that release should not be
counted as a release and the tort is not discharged.

Illustration - If a person is a police inspector, commits an act of tort against another person. By using his
position and by threat, take the consent of the injured person and release himself from the liability, that
release is not a valid release.

Judgement

In this method, the discharge of tort happens by the judgement given by the court. If once the court
gives judgement on the matter, the tort gets discharged, no appeal for the same act of tort can be
claimed for the same remedy in the court of law.

The concept of this method of discharge of tort is based on the legal maxim of Res-Judicata, it means, if
any cause of action decided previously by the court, the same cause of action should not be entertained
by the court twice.

Illustration - If A gets the remedy against B for the accident committed by him previously by the
judgement of the court. Later he found that he needs to go through a further operation. He cannot
claim another remedy for the same again in the court of law.

In Fitter v. Veal, (1701 12 Mod. Rep. 542)

In this case, the plaintiff files a case against the defendant demanding damages against the act of assault
by the defendant and finally he gets the remedy from the defendant as the court of law allows the
remedy to him. Later he discovered that he has to go through a number of surgeries. He filed another
petition against the defendant demanding more remedy against the act of assault again in the court of
law.

The court denied the petition and state that, If once court gives judgement on the matter, no further
appeal for the same act of tort can be filed in the court of law as the tort gets discharged.

Exceptions - If the petition was between the same party but is for different remedy or the action taken
in respect to the violation of another right. Then the petition can be allowed.

In Brunsden v. Humphrey:

In this case, the plaintiff was a cab driver and already received compensation against the damage to his
cab. Later discovered, due to the injury caused in the accident, he got a fracture in his hand. He has the
right to apply for the remedy against the trespass to his body as well.

If the person who is liable for the act previously does the same act another time.

Illustration - If A commits the tort of trespass against B previously and held liable by the court of law. If
he again commits the same crime against B. If A plea defence that the court cannot punish him for the
same offence twice. The defence is not valid because this case was considered as a fresh one.

Acquiescence

In this method, the tort gets discharged because of the incapacity of the plaintiff himself i.e. if he has no
time to go to court, no money to pay the court fees, or any other incapacity. When any person is
entitled to enforce his right, and he doesn’t enforce his right for a long time, this makes other party
waived from his liability.

Illustration - if A is entitled to enforce his right against B. If A neglects to enforce his right for a long time,
it automatically waived B from his liability.

Law of limitation

Under this method the tort gets dismissed due to the limitation i.e. when the prescribed time limit to file
the case gets over, in this situation the tort gets dismissed and no person is entitled to enforce his right.

Like, in the case of false imprisonment or libel the limit to file a case is 1 year, in case of trespass to
immovable property, the limit set is 3 years etc after the time limit gets over, no person can enforce
his/her right.

Illustration - If a tort of trespass to the property has been committed by B against A, if A fails to apply
against it within 3 years in the court of law, then he cannot apply as he lost his right to apply due to
limitation.
2. TRESSPASS AND TRESSPASS AB INITIO

* TRESSPASS - Trespass can be said to be an action exceeding the limit carved by the law. It is an
intentionally directed, unreasonable interference with one’s person and property. The word ‘intention’
here implies committing the wrong voluntarily. Trespass allegation can be leveled if the interference is
with one’s and third person’s body and private property. It is to be kept in mind that intention forms the
essential component of trespass. Unreasonable behavior is triggered by the mala Fides and ulterior
intention to harass another.

TYPES OF TRESSPASS

1.Tresspass Against Person - I.e Assault , Battery , False imprisonment, Mayhem , etc

2. Tresspass against Property - i.e Movasble n immovable property

* TRESSPASS AB INITIO - A trespass from the beginning. A trespass by retrospective operation, the
principle being that where an entry, authority, or license is conferred by law under which conduct
otherwise constituting a trespass may be justified, an abuse of such authority will destroy the privilege
and render the act done in excess of authority, a trespass from the beginning, that is, from the time of
the entry.

Trespass ab initio is a doctrine developed by early common law. Accordingly, a person who enters a
land in exercise of his/her duty authorized by law is said to have committed trespass to land, or property
when s/he abuses the power conferred upon him/her by causing damage to the property. The person
will be held liable not only for his/her misconduct but also for the lawful entry into the land. Thus, in a
trespass ab initio claim, the lawful entry will be considered as trespass, because the privilege is abused
and harm is caused to another person’s legal interest.

Conditions constituting trespass ab initio are:

A) The authority abused must be an authority granted by law and not by an individual

B) There must be some positive act of misconduct, and not a mere omission or neglect of duty

Entering with license : Entering certain premises with the authority of the person in possession amounts
to a licence and the defendant cannot be made liable for trespass. Eg- Permitting a person to cut a tree
on one’s land.

3. COMPLAINT

MEANING - A complaint in the legal world refers to the first document that is filed by the plaintiff in a
case. This document lists all of the facts and reasons why the plaintiff believes he is justified in bringing
his case against the defendant. For example, a complaint filed in a civil case may detail the ways in which
the plaintiff believes the defendant defrauded him, and why the plaintiff is entitled to a damages award
as a result.

DEFINATION - The first document that is filed in a legal matter that details the facts and legal reasons
that led the plaintiff to conclude he has a legitimate case against the defendant.

TYPES OF COMPLAINT

i ). LEGAL COMPLAINT

A legal complaint, or civil complaint, is the first document filed in a case, and it is often served along with
a summons. The purpose of a legal complaint is to lay out all of the facts and reasons why the plaintiff
decided to bring the suit, along with the case law that supports his decision to bring the suit. Some of
the information that is typically listed in these documents includes:

Allegations against the defendant

The specific laws the defendant allegedly violated

The facts that led to the lawsuit being filed

Plaintiff’s demands for the defendant to follow to make good on what he allegedly did wrong

According to the Federal Rules of Civil Procedure (FRCP), any sensitive information should be redacted,
or scratched out, before a civil complaint is filed with the court. This includes any exhibits that may be
attached to the document as well, which is not regular practice. Information that should be edited out of
a complaint includes:

Social Security numbers (or Tax Identification Numbers)

Birthdays

Bank or credit account information

Children’s names, if the action involves a minor (initials should be used instead)

The person filing the lawsuit should either white-out or black-out sensitive text. There should also be a
note on the paper to indicate that the information was, in fact, redacted.

ii) .FILING UNDER SEAL

An alternative to redacting information in the complaint is to request that the court permit the
document to be filed under seal. When a document is filed under seal, this means that the document
will not become part of the public record. Documents that are not filed under seal are viewable by the
public. However, if the information contained in the document is to remain confidential, then the court
may grant a filing under seal.
The confidentiality of the information within the document may be temporary or permanent. For
instance, in some cases, the filing party will specify when it is okay for the information in the document
to be made public. However, in the event a complaint is filed with, say, someone’s Social Security
number in it, this document will more than likely remain permanently under seal.

iii.) CRIMINAL COMPLAINT

A criminal complaint, also known as a felony complaint, is only slightly different from the civil version.
Rather than an individual filing the document, a criminal complaint is typically filed against an individual
by the government. However, some states do permit individuals to file criminal complaints as well.

A criminal complaint charges an individual with a crime. Normally, in a criminal case, the defendant is
arrested first, then the police submit a report to the local prosecutor. The prosecutor then decides
whether to file charges against the individual. His decision is based on whether there is enough evidence
to charge that person with a crime, and whether the case is worth his time to prosecute it. In some
states, however, such a document must be filed before the court will issue an arrest warrant.

4. NUISANCE

Definitions by Various thinkers

According to Stephen, nuisance is anything done to the hurt or annoyance of the tenements of another,
or of the lands, one which doesn’t amount to trespass.

According to Salmond, nuisance consists in causing or allowing to cause without lawful justification, the
escape of any deleterious thing from one’s land or from anywhere into land in possession of the
plaintiff, such as water, smoke, gas, heat, electricity, etc.

Essential elements of Nuisance

Wrongful act

Any act which is done with the intention to cause the infringement of the legal rights of another is
considered to be a wrongful act.

Damage or loss or annoyance caused to another individual.

Damage or loss or annoyance must be such which the law should consider as a substantial material for
the claim.

Kinds of Nuisance

* Public Nuisance

The Indian Penal code defines nuisance as an act which causes any common injury, danger or
annoyance, to the people in general who dwell or occupy the property, in the vicinity, or which must
necessarily cause injury, obstruction, danger, or annoyance to the people who may have occasion to use
any public right.

Public nuisance affects the society and the people living in it at large, or some considerable portion of
the society and it affects the rights which the members of the society might enjoy over the property. The
acts which seriously affects or interferes with the health, safety or comfort of the general public is a
public nuisance.

Instances where an individual may have a private right of action in respect to a public nuisance:

He must show the existence of any personal injury which is of a higher degree than the rest of the
public.

Such an injury has to be direct and not just a consequential injury.

The injury must be shown to have a huge effect.

*Private Nuisance

Private Nuisance is that kind of nuisance in which a person’s use or enjoyment of his property is ruined
by another. It may also injuriously affect the owner of the property by physically injuring his property or
by affecting the enjoyment of the property. Unlike public nuisance, in private nuisance, an individual’s
usage or enjoyment of property is ruined as distinguished from the public or society at large. The
remedy for private nuisance is a civil action for damages or an injunction or both.

5. UNFAIR TRADE PRACTICES

What Is an Unfair Trade Practice?

Unfair trade practices refer to the use of various deceptive, fraudulent, or unethical methods to obtain
business. Unfair business practices include misrepresentation, false advertising or representation of a
good or service, tied selling, false free prize or gift offers, deceptive pricing, and noncompliance with
manufacturing standards. Such acts are considered unlawful by statute through the Consumer
Protection Law, which opens up recourse for consumers by way of compensatory or punitive damages.
An unfair trade practice is sometimes referred to as “deceptive trade practices” or “unfair business
practices.”

KEY TAKEAWAYS

Unfair trade practices refer to businesses using deceptive, fraudulent, or otherwise unethical methods
to gain an advantage or turn a profit.
Consumer Protection Law, as well as Section 5(a) of the Federal Trade Commission Act, protects
consumers from unfair business practices.

Understanding Unfair Trade Practices

Unfair trade practices are commonly seen in the purchase of goods and services by consumers, tenancy,
insurance claims and settlements, and debt collection. Most states’ unfair trade practices statutes were
originally enacted between the 1960s and 1970s. Since then, many states have adopted these laws to
prevent unfair trade practices. Consumers who have been victimized should examine the unfair trade
practice statute in their state to determine whether they have a cause of action.

Unfair trade practices are commonly seen in the purchase of goods and services by consumers, tenancy,
insurance claims and settlements, and debt collection.

Unfair Practices

An act is unfair when it meets the following criteria:

It causes or is likely to cause substantial injury to consumers.

It cannot be reasonably avoided by consumers.

It is not outweighed by countervailing benefits to consumers or to the competition.

6. CONTRIBUTORY NEGLIGENCE

Contributory negligence basically means ignorance from both the parties involved. If a person is driving
a car without any breaks met with an accident with another person who was driving on the wrong side
of the road. This results in contributory negligence. It’s a defence available to the defendant in case of
contributory negligence which prevents the plaintiff to get compensation.

Contributory negligence is the ignorance of due care on the part of the plaintiff to avoid the
consequences of the defendant’s negligence. This concept is loosely based on the maxim- “Volenti non
fit injuria” (injury sustained voluntarily). It means If a person is not taking due diligence in order to avoid
consequences resulting out from the negligence of the defendant the liability of negligence will be on
both of them.

Principles of contributory negligence

If the plaintiff is himself negligent for taking due care in order to avoid consequences and becomes the
direct cause of the damages, he is not entitled to receive any compensation.

If both the plaintiff and the defendant have taken reasonable measure and ordinary care to such extent
where they both wanted to avoid such consequences then the plaintiff can’t sue the defendant.

7. ASSAULT & BATTERY

Assault and Battery are often used interchangeably but they are different. They both are intentional tort.
Every Battery includes assault but every assault does not include a battery.

Assault generally means when a person planned and tries to harm another person which also includes
giving threats to someone else and Battery, on the other hand, it means when a person tries to
compromise to harm physically to another person without the person’s consent.

Assault and Battery can be treated in both ways that means a person can be charged in civil lawsuit i.e.
demanding for compensation in the form of damages in monetary terms or maybe in criminal lawsuit if
the accused found guilty for the offense can be put in jail.

ASSAULT

Assault comes in a picture before the battery. It happens when a person plans and tries to harm to
another person when a person commits an act of battery. Act of assault can be tried under civil lawsuits
as well as criminal lawsuits.

BATTERY

It means when a person came in physical contact or touches thing which belongs to that person or
things related to that person with the intention to harm the other person this is known as Battery. In this
the main ingredient physical conduct, when the accused came in physical contact with the intention to
harm another person then the offense of Battery will be committed. Every battery includes assault that’s
why they both are used together mostly.

8. LIBEL & SLANDER

Not all torts result in bodily harm. Some cause harm to a person's reputation instead.

Defamation is the general tort that encompasses statements that damage a person's reputation. There
are different forms of defamation, including libel and slander.

The difference between libel and slander is simply whether the statements are written or spoken. If they
are written, they are considered libel. If they are spoken, they are considered slander. If a person suffers
injury to their reputation as a result of another person's statements, they can sue under the theory of
defamation.

LIBEL - is the publication of false statements that damage someone’s reputation. You’ll also see it
referred to as defamation. An opinion is not libel. Libel refers to specific facts that can be proved untrue.

A true statement that damages someone’s reputation might be an invasion of privacy, but it is not libel.

Libel is a representation made in a permanent form like writing, movie, picture etc. For e.g., X printed
some advertisement saying Y is bankrupt but Y was not thus it was representation in a specific form.
SLANDER - Slander involves making statements which are untrue or are known to be false to the person
making it. The person making the statements knows or has reasons to believe that such statements will
cause harm to the reputation of another person. The statements may be made in a direct or indirect
manner.

The statements may be expressed as an alternative or expressed ironically. For example, A says "X is an
honest man; he never stole Z's watch" with the intention of causing a belief that X did steal Z's watch.
This statement would be defamation. The aggrieved person or defamed person can file a lawsuit against
the person making such statements.

The lawsuit can seek damages from the alleged offender for loss of reputation or goodwill due to the
statements made by such person. The statements made in slander must be a statement of fact and not
an expression of an opinion.

Slander is different from a libel which involves written acts of communication, causing defamation to
another person. Slander is temporary as compared to libel due to its short-lived nature in comparison to
the written form or mass communication form of libel.

In a case where an allegation of defamation is made by a public figure, then one has to prove that the
'slander' was made with malicious intentions.

9. DEFECT & DEFICIENCY

What is Defect?

Section 2(1)(f) of the Consumer Protection Act, 1986 defines defect in goods. The defect is defined as
any imperfection, fault, a shortcoming in certain parameters of the good which are as follows:

Quality , Quantity , Purity , Potency , Standard

The above has a level that needs to be maintained by or under any law in force at that time.

Hence, if any good is not up to the mark or is faulty, that is, does not meet the mark of the laws
applicable in the particular period, it is defective.

Illustrations of Defective Good : A consumer purchases a washing machine. It has a wiring problem
which results in the destruction of all the clothes put in the machine.

A consumer purchases a cosmetic product that causes irritation to the skin.

A consumer purchases a handbag. After purchase, he sees a slit at the bottom of the bag.

A consumer purchases milk that has been adulterated by mixing with water.

A consumer purchase socks made of a fabric that causes skin infection.

A defect of Goodsis seen in numerous cases due to its wide ambit. Defects can be present in goods
irrespective of their size, shape, colour, dimension, state of matter and so on. The defect in service often
causes inconvenience, injury and in aggravated cases, death. Producers of goods must be immensely
careful of the goods that are being manufactured by them.

Safety is a major concern which is sought after by all consumers across the globe.A small defect in good
can cause a great impact on the consumer who can face a damage. This damage includes physical,
mental and economic loss.

Cases of the defect in goods are too many to count and have rapidly increased with the introduction of
online shopping. The Consumer Protection Act tries to limit these grievances of the consumers by
penalizing the producers of such goods. It is the much-required means of providing justice to those
consumers who have been at a loss or inconvenience.

What is a deficiency?

According to Section 2(11) of the Consumer Protection Act 2019 (“the Act”), deficiency is any sort of
fault, imperfection, shortcoming or defect in the feature, quality, amount, nature, worth, authenticity,
capacity and standard which is obligatory to be maintained and regulated as per the laws and statutes in
function or any agreement/contract claimed by the seller, with respect to the products and goods.
Including any act of negligence, omission or commission by the seller which causes loss to the consumer,
which a prudent seller is supposed to do or is supposed to omit, but deliberately does the contrary, such
actions amount to ‘deficiency of service’. These definitions help to understand the clear meaning of
deficiency in services. Whenever there is any sort of deficiency in services, the customer is exploited
which impacts and causes loss of money. Any kind of negligence or omission or commission can cause
injury to consumers.

Examples of deficiency of services:

Inappropriate treatment done by a doctor leading to an increase in patient’s suffering is the deficiency in
service.

A customer buys a ticket for an AC bus. But the AC of the bus does not work, which is a deficiency of
service.

10. ACT OF GOD

MEANING N DEFINATION

An Act of God is defined as a direct, sudden, insanely violent, natural, and irresistible act of nature, one
which could not by any amount of care would have been foreseen, or if it has been foreseen, could not
be avoided by any amount of care by any individual.

THE CONCEPT OF Force major/ Vis major/ Act of God

An act of God is defined as a direct, sudden, insanely violent, natural, and irresistible act of nature, one
which could not by any amount of care have been foreseen, or if it has been foreseen, could not be
avoided by any amount of care by any individual.

An act of God is one which has been there ever since the existence of our planet Earth, we have been
witnessing natural calamities since the existence of mankind, these include, Earthquakes, floods,
tornadoes, wildfires, etc. In such occurrences, lives are lost, properties are destroyed or significantly
damaged when the forces of the nature strike harshly and suddenly.

Nature’s blows are severely dangerous and may come as a huge shock or surprise both to the victims of
the disaster and even the accused individuals or tortfeasors.

In many cases, the defendants are quick to claim the defence of an act of God as a defence to those
cases. To afford the defence of vis major, there must be an immediate or proximate cause (Causa
causans) and not just a cause had it not existed might never have led to the damage caused or
complained of (causa sine quo non).

Before an act of God may be granted as a defence the defendant has to prove himself to have done
everything that a reasonable and a prudent person could do in such a scenario.

11. VOLENTI NON FIT INJURIA

What is volenti non-fit injuria?

In the law of torts, there is a duty on every person do acts with reasonable care in order to avoid any
harm which may occur due to their failure of taking such care. For e.g., If a person is driving his car, he
has a duty to drive the car safely and within speed limits so that no accident occurs which can also harm
any other person.

This is the general rule in torts but there are certain exceptions which are allowed in these cases and
these called as defences to tort. Under these defences, a defendant can escape liability and volenti non-
fit injuria is also one such defence which is available for the defendant.

In case a person gives his consent to doing of an act which leads to him getting injured, then even if an
injury is caused by the other person, he cannot claim any damages from that person because the act
was one for which he voluntarily consented. The consent of the plaintiff acts as a defence and this
defence is called volenti non fit injuria which means to a willing person no injury happens.

Illustration: If A has a bike whose brakes do not work and B knowing about the conditions of the bike
still chooses to sit on it with A driving it and due to the failure of such brakes they both sustain injuries in
an accident, B cannot claim relief from A because he had voluntarily consented to sit on the bike.

But in the above illustration, if B was not aware of the conditions of brakes and then he sustained
injuries sitting in it, he would not be stopped from claiming damages from A because here B did not give
his consent to accept the risk of getting injured due to failure of the brakes.
Elements of Volenti non-fit injuria

For the application of the defence of volenti non fit injuria there are some essential elements or
conditions which should be present in a case and only when they are fulfilled, this defence can be taken
to prevent liability.

There are 2 essential elements in this defence:

1. The plaintiff has the knowledge of the risk

2. The plaintiff with the knowledge of risk has voluntarily agreed to suffer the harm.

Thus, whenever the plaintiff is aware of the possibility of harm which is likely to be caused by an act and
when he still accepts to do that act and therefore agrees to suffer the injury, a defendant is relieved of
his liability.

But only having knowledge about the risk is not enough for the application of this defence, It is known as
Scienti non fit injuria, which means that mere knowledge does mean consent to the risk. Thus having
knowledge is only a partial fulfilment of the conditions for the application of volenti non fit injuria.

Illustration: A goes for bungee jumping and he knows that he might get injured by it but he still decides
to do it and as a result, he suffers injury despite all the necessary care being taken by the organisers.
Here A cannot claim damages from the organisers because he had full knowledge of the risks and he had
voluntarily agreed to suffer that injury by choosing to do bungee jumping.

In Smith v. Baker & sons, (1891) AC 325, the plaintiff was an employee of the defendant and the site
where he used to work had a crane which carried rocks over their heads. The plaintiff had also
complained to the defendant about it. One day the plaintiff was injured because of these rocks falling on
him and thus he sued the defendant for damages. It was held that the defendant was liable and had to
pay damages to the plaintiff because the plaintiff had consented to the danger of the job but not to the
lack of care.

12. WAGON MOUND CASE

Wagon Mound Case: The Re-affirmation of the Test of Reasonable Foresight

The test of directness that was upheld in the Re Polemis case was considered to be incorrect and was
rejected by the Privy Council 40 years later in the case of Overseas Tankship (UK) Ltd. v. Morts Dock and
Engg. Co. Ltd., also popularly known as the Wagon Mound Case.

The facts of this case are as follows:

The Wagon Mound was a ship which was chartered by the appellants (Overseas Tankship Ltd.). It was
taking fuel at a Sydney port at a distance of about 180 metres from the respondent’s wharf. The wharf
had some welding operations going on in it. Owing to the negligence of the appellant’s servants, a large
quantity of oil was spilt on the sea which also reached the respondent’s wharf. Due to the welding
operations going on there, molten metal (from the respondent’s wharf) fell, which ignited the fuel oil
and a fire was caused. The fire caused a lot of damage to the respondent’s wharf and equipment.

In this case, the trial court and the Supreme Court held the appellants liable for the damage to
respondents based on the ruling in Re Polemis. But when the case reached the Privy Council, it was held
that Re Polemis could not be considered good law any further and thus the decision of the Supreme
Court was reversed. It was held that the appellants could not have reasonably foreseen the damage to
the respondent and therefore were not liable for the damage caused.

In the case Lord Viscound Simonds observed:

“It does not seem consonant with current ideas of justice or morality that, for an act of negligence, …
the actor should be liable for all consequences, however unforeseeable.”

They also maintained that “according to the principles of civil liability, a man must be considered to be
responsible only for the probable consequences of his act”.

And therefore with this case, the test of reasonable foresight regained its authority to determine the
remoteness of damage and subsequently the liability of a person for the damage caused by him in cases
of tort.

13. CONSUMER PROTECTION COUNCIL

The Consumer Protection Council is a government institution that was established in 1972 with the main
objective of protecting consumer rights. The council is made up of members from various government
departments, such as the Department of Industrial Policy and Promotion, the Department of Law and
Justice, and the Department of Consumer Affairs. The council’s main focus is to safeguard consumer
interests by monitoring and enforcing consumer protection laws, facilitating consumer education, and
providing consumer redressal mechanisms.In addition, the council also promotes consumer-friendly
policies and initiatives.

What is the Consumer Protection Council?

The Consumer Protection Council is an organisation that provides legal assistance to Indian consumers.
They do this by developing and promoting effective consumer protection measures, as well as educating
people about their rights under the law. It has a wide range of services that it offers, including product
liability, consumer disputes, and credit information. Additionally, the council conducts awareness
campaigns to educate people about their rights as consumers. The council offers free information and
support to individuals who have been wronged by companies or government agencies. So, whether
you’re the victim of a scam or just feel like you’ve been wronged in the past, the Consumer Protection
Council can help.

Composition of the Consumer Protection Council

The Consumer Protection Council acts as the mediator between businesses and consumers, providing
education and legal interpretations of consumer rights. In addition, the council tries to make it easier for
consumers to take action if they feel that their rights have been violated.

The Consumer Protection Council is a government body that looks after the interests of consumers in
India. It has a total of 20 members and all are appointed by the President of India on the advice of the
Prime Minister. The term of all members is 5 years and they can be re-appointed once their term ends.
The primary mandate of the council is to provide effective and affordable consumer protection through
the formulation, implementation, and review of consumer-related laws/regulations. It also provides
guidance to other government departments/organisations on issues pertaining to consumer affairs.
Overall, the council plays an important role in ensuring that consumer interests are always well-
protected.

Objectives of the Consumer Protection Council

The Consumer Protection Council provides impartial advice and support to consumers with regard to
their rights under the law. Its members are experts in consumer protection and come from different
parts of the business community. They work together to provide objective, impartial guidance, and
support to consumer concerns. In addition, the council also works towards increasing consumer
awareness of their rights and protecting businesses from unfair practices by customers.

It performs functions like:

To formulate policy guidelines for the protection and promotion of consumer interests.

To provide guidance on matters relating to consumer protection.

To advise Government on all issues related to consumer protection.

To monitor compliance with rules/regulations issued by the Government or any other authority or
organisation as per directions given by it.

To receive complaints from consumers regarding violations or non-compliance with any provision.

OR

Consumer Protection Councils

The Act establishes consumer protection councils to protect the rights of the consumers at both the
national and state levels.

Central Consumer Protection Council

Under Chapter 2 Section 3 of the Consumer Protection Act, 2019 the Central Government shall establish
the Central Consumer Protection Council which is known as the Central Council. It is an advisory body
and the Central Council must consist of the following members;
The Minister-in-charge of the Department of Consumer Affairs in the Central Government will be
appointed as the chairperson of the council, and

Any number of official or non-official members representing necessary interests under the Act.

The Central Council may meet as and when necessary, however, they must hold at least one meeting
every year. The purpose of the Central Council is to protect and promote the interests of the consumers
under the Act.

State Consumer Protection Councils

Every state government shall establish a State Consumer Protection Council known as the State Council
having jurisdiction over that particular state. The State Council acts as an advisory body. The members of
the State Council are:

The Minister-in-charge of the Consumer Affairs in the State Government will be appointed as the
chairperson of the council,

Any number of official or non-official members representing necessary interests under the Act, and

The Central Government may also appoint not less than ten members for the purposes of this Act.

The State Councils must hold at least two meetings every year.

District Consumer Protection Council

Under Section 8 of the Act, the state government shall establish a District Consumer Protection Council
for every district known as the District Council. The members of the District Council are:

The collector of that district will be appointed as the Chairperson of the District Council, and

Any other members representing necessary interests under the Act.

14. DONOGHUE vs STEVENSON

Facts of the case

On the 26th of August, 1928, Mr Minchella purchased a ginger beer bottle from Wellmeadow Cafe in
Paisley (Scotland) for his friend, Mrs Donoghue, the appellant. The ginger beer bottle was made of dark
opaque glass, and thus, there was no reason to suspect that the bottle might have contained anything
other than ginger beer.

After consuming almost half of the contents of the bottle, when the rest of the ginger beer was poured
into a tumbler, dead, decomposed remains of a snail floated into it. The nauseating sight coupled with
the consequences of ingesting the impurities in the bottle caused shock and severe gastro-enteritis to
the appellant.
The case was first filed in the Second Division of Sessions Court of Scotland where an interlocutor was
issued by Lord Ordinary for proof after a good cause of action of the petitioner was found. But
subsequently, another interlocutor by the majority was issued recalling the previous interlocutor and
the action was dismissed. An appeal was then filed in the House of Lords.

# Legal background

The general principle established till then was that the manufacturers owed no duty of care to anyone
with whom they are not in contractual relation. However, this general rule had two exceptions -

The article is dangerous per se.

The dangerousness of the article was known to the manufacturer but said knowledge was deliberately
concealed.

In the present scenario, since the appellant was unable to claim compensation due to the breach of
contract (no contract existed between the appellant and the manufacturer as the appellant’s friend had
originally purchased the bottle), she submitted that Stevenson, the respondent, had breached the duty
of care and caused legal injury through negligence.

15. MALICIOUS PROSECUTION

Suppose a person under the influence of an ill or improper motive institutes a judicial proceeding
against another person without likely cause to sustain it. In that case, it can be defined as malicious
prosecution as observed by the court during the case of West Bengal State Electricity Board versus Dilip
Kumar Ray.

It is the benevolent intention of unsuccessful criminal or bankruptcy or liquidation proceedings against

another without likely cause. Malicious prosecution is likely to occur when one party knowingly and
intentionally initiates any baseless litigation against the other person.

Essential elements of malicious prosecution

To prove malicious prosecution in a suit, the plaintiff must prove-

Prosecution by the defendant

It must be noted that any departmental enquiries against the plaintiff conducted by disciplinary
authorities will not be considered prosecution. Prosecution refers to judicial proceedings through
appeals.

Absence of reasonable and probable cause

The plaintiff’s responsibility is to prove to the court that he was prosecuted without reasonable cause by
the defendants with malicious intent.
Even if the reasonable, likely and probable motive exists, it is of no value if the prosecutor prosecutes
the case in ignorance. It must be noted that the accused getting acquitted or the case getting dismissed
should not be proof of the absence of reasonable and probable cause.

Suppose a person initiates a proceeding with multiple charges, where the probable cause may be
present for some of the charges and absent for some. In such cases, the probable motive isn’t always
present, and hence his legal responsibility for malicious prosecution is complete. A person who files a
suit for malicious prosecution has to prove that the defendant who has filed the case has done it
without any likely cause.

The malicious act of the defendant

Malice isn’t always only a feeling of ill will or a spirit of vengeance in the direction of the plaintiff;
however, it may be to behave with any mistaken cause which motivates the prosecutor to benefit from
the man or woman.

It isn’t always crucial that the defendant appear maliciously proper from the prosecution launched. If
the prosecutor is initially harmless but becomes malicious, a motion for malicious prosecution can lie. If
the pendency of crook prosecution, the defendant receives fantastic know-how of the accused’s
innocence, the continuance of the trial is malicious from that moment onwards.

Malice may be inferred upon evidence of the absence of sincere perception inside the accusation and
consequent need of reasonable and probable cause for instituting the prosecution complaint.

16. INJURIA SINE DAMNO & DAMNUM SINE INJURIA

Injuria Sine Damno

Injuria sine damno is a violation of a legal right without causing any harm, loss or damage to the plaintiff
and whenever any legal right is infringed, the person in whom the right is vested is entitled to bring an
action. Every person has an absolute right to his property, to the immunity of his person, and to his
liberty & infringement of this right is actionable per se. A person against whom the legal right has been
infringed has a cause of action such that even a violation of any legal right knowingly brings the cause of
action. The law even gives the liberty that if a person merely has a threat of infringement of a legal right
even without the injury being completed, the person whose right has been threatened can bring a suit
under the provisions of Specific Relief Act under Declaration and injunction.

For Example:- If a person is wrongfully detained against his will, he will have a claim for substantial
damages for wrongful imprisonment even if no consequential loss was suffered pon the detention.

As was cited in the case of Ashby Vs. White (1703) wherein the plaintiff was a qualified voter at the
parliamentary elections which were held at that point of time. The defendant, a returning officer
wrongfully refused to take the plaintiff’s vote. The plaintiff suffered no damage since the candidate
which he wished to vote already won the elections but still, the defendants were held liable. It was
concluded that damage is not merely pecuniary but injury imports a damage, so when a man is hindered
of his rights he is entitled to remedies.

Damnum Sine Injuria

Damnum sine Injuria is a legal maxim which refers to as damages without injury or damages in which
there is no infringement of any legal right which are vested with the plaintiff. Since no legal right has
been infringed so no action lies in the cases of damnum sine injuria. The general principle on which this
maxim is based upon is that if one exercises his common or ordinary rights, within reasonable limits, and
without infringing other’s legal right; such an exercise does not give rise to an action in tort in favour of
that other person. Damages can be in any form either in the form of any substantial harm or loss
suffered from respect to the money, comfort, health, etc.

It is an implied principle in law that there are no remedies for any moral wrongs, unless and until any
legal right has been infringed. Even if the act or omission such done by the defendant was intentional,
the Court will not grant any damages to the plaintiff. As was cited in the case of Mayor & Co. of Bradford
vs. Pickles (1895) in which the corporation of Bradford filed a suit against the defendant alleging that the
act of defendant by digging a well in the adjoining land owned by the defendant has cut the
underground supply of water in the corporation’s well hence causing them monetary losses since there
was no adequate supply of water to discharge for the people living under the jurisdiction of the
corporation. It was held that the defendant is not liable since they had not violated any legal right of the
plaintiff.

In another case of Gloucester Grammar School (1410) in which a schoolmaster, set-up a rival school to
that of the plaintiff and since because of the competition the plaintiff had to reduce their fees from 40
pence to 12 pence per quarter. Thus claimed for compensation from the defendants for the losses
suffered. It was held that the plaintiff had no remedy for the losses suffered, since the act though
morally wrong has not violated any legal right of the plaintiff.

17. STRICT LIABILITY

The strict liability principle is an extremely important concept under the law of torts. The basis of this
principle basically lies in the inherent harm that some activities can inflict. For example, leaking of
poisonous gasses, as it happened in the Bhopal Gas Tragedy, will attract this rule.

The underlying principle of compensation in torts generally depends on the extent of precautions a
person takes. Hence, if he takes abundant precautions to prevent some harm, the law may exempt him
from paying damages. This principle, however, does not apply to strict liability.

Under the strict liability rule, the law makes people pay compensation for damages even if they are not
at fault. In other words, people have to pay compensation to victims even if they took all the necessary
precautions. In fact, permissions allowing such activities often include this principle as a pre-condition.

Rylands v. Fletcher
The rule of strict liability originates from the famous English case of Rylands v. Fletcher. According to the
facts of this case, the defendant owned a mill and wanted to improve its water supply. For this purpose,
he employed a firm of reputed engineers to construct a reservoir nearby.

The problem occurred when the reservoir was so full one day that the water from it started over-
flowing. The water flowed with so much force that it entered the plaintiff’s mine and damaged
everything.

The engineers, who were independent contractors of the defendant, were clearly at fault. This is
because they were negligent in constructing the reservoir. This is exactly what the defendant also said
for avoiding his liability.

The court, however, disagreed and explained the strict liability rule. It said that when somebody keeps
something on his property for his benefit, it should not escape and affect others. In case it so escapes,
the owner of that thing must compensate the victim even if he was not negligent.

18. UBI JUS IBI REMEDIUM

It is a Latin maxim which means that where there is a wrong, there is a remedy. If any wrong is
committed then the law provides a remedy for that. The maxim can be phrased as that any person will
not suffer a wrong without a remedy, it means that once it is proved that the right was breached then
equity will provide a suitable remedy. This principle also underlines the fact that no wrong should be
allowed to go without any compensation if it can be redressed by a court of law. The law presumes that
there is no right without a remedy; and if all remedies are gone to enforce a right, the right in point of
law ceases to exist.

Development of Ubi jus ibi remedium

The law of tort is said to be the development of the maxim Ubi jus ibi remedium. The word “jus” means
legal authority to do something or to demand something. The word “remedium” means that the person
has the right of action in the court of law. The literal meaning of the maxim is where there is a wrong
there is a remedy.

Essentials of Ubi jus ibi remedium

The maxim ubi jus ibi remedium can be applied only where the right exists and that right should be
recognized by the court of law;

A wrongful act must have been done which violates the legal rights of a person clearly.

This maxim can be used only when sufficient relief has not been provided by the court to the person
who sustained the injury.

This maxim is applicable if any legal injury had been caused to any person, if no legal injury has been
caused then the maxim damnum sine injuria will be used which means damage without any legal injury.
Limitations of ubi jus ibi remedium

The maxim ubi jus ibi remedium does not apply to moral and political wrong which are not actionable.

This maxim is not applied to those cases in which proper remedy is given in case of breach of right under
common law.

If there is no legal damage which has been caused to any person then this maxim will not be applicable.

No remedies are available in case of breach of marriage vows or personal commitment as these all are
the promises made without consideration and are based on trust.

This maxim is also not applicable in case of public nuisance unless and until a plaintiff shows that he
suffered more injury than other members or peoples of the society.

This maxim is not applicable where the plaintiff is negligent or there is negligence on the part of the
plaintiff.

19. ACTIO PERSONALIS MORITUR CUM PERSONA SCIENTER'S RULE

What does it mean

Actio personalis moritur cum persona in bold and literal terms means ‘a personal right of action dies
with the person’.

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

Personalis stands for ‘personal’

Moritur stands for ‘death’

Cum stands for ‘with’

Persona stands for ‘person’

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

ILLUSTRATIONS

In a situation where Tithi commits battery on Saumya and if either of the parties dies during the
incident, the right of actions of Saumya arose due to the fact that Tithi committed the offense of battery
on her, Saumya will not get the right to take any action against Tithi. But if Tithi commits the offense of
battery on Saumya and manages to cause other injuries to her, the right of action that the third person
will get will not be affected at all and the legal maxim “Actio personalis moritur cum persona” shall be
used in this case.

In the month of January, person A agrees and signs a contract to perform a dance show at the wedding
of person B which will take place in the month of July. A was in an accident in June and could not make it
to the wedding. This way, B cannot execute an action against A or their legal representatives for the
breached contract.

Saloni betrays and wrongfully appropriates land from Brijesh. Saloni dies right after this and that is why
Brijesh has the right of action against the legal representatives of Saloni.

20. CONTRIBUTORY NEGLIGENCE OF CHILDREN

Contributory negligence is the failure of both the plaintiff and the defendant to take proper care, for
their actions. It is a defence under torts. Therefore, if the plaintiff has contributed to the damage by
being negligent, then he can be guilty of contributory negligence along with the defendant.

What amounts to contributory negligence in the case of a matured person may not be so in the case of a
child because a child cannot be expected to be as carefull as a grown up person. Age of a person,
therefore , has to be taken into account to ascertain whether a person is guilty of contributory
negligence or not.

Contributory Negligence and Children:

Children below six years are taken as an exception to Contributory Negligence. It is understood that
children below six years of age are not in a position to understand the consequences of the act like the
others.

To understand this let us consider the following example:

A child below 6 years was standing on the road near the footpath. A lorry which drove rashly hit him and
injured him. In this case the court held that, the child was not in a nature like the adults to understand
the consequences of standing on the road. Therefore, the child cannot be held liable for Contributory
Negligence.

21.CONSUMER

A consumer is an individual or group of individuals who purchase goods and services for their own
personal use and not for the purpose of manufacturing or resale. Section 2(7) of the Consumer
Protection Act, 2019 defines a consumer as any person who buys goods or services in exchange for
consideration and utilises such goods and services for personal use and for the purpose of resale or
commercial use. In the explanation of the definition of consumer, it has been distinctly stated that the
term ‘buys any goods’ and ‘hires or avails any services’ also includes all online transactions conducted
through electronic means or direct selling or teleshopping or multi-level marketing.
What are consumer rights under Consumer Protection Act, 2019

There exist six rights of a consumer under the Consumer Protection Act, 2019. The rights of the
consumers are mentioned under Section 2(9) of the Act, which are as follows:

The right of a consumer to be protected from the marketing of goods and services that are hazardous
and detrimental to life and property.

The right of a consumer to be protected against unfair trade practices by being aware of the quality,
quantity, potency, purity, standard and price of goods, products or services.

The right of a consumer to have access to a variety of goods, services and products at competitive
prices.

The right to seek redressal at respective forums against unfair and restrictive trade practices.

The right to receive adequate compensation or consideration from respective consumer forums in case
they have been wronged by the seller.

The right to receive consumer education.

22. INNUENDO

Innuendo

A statement is prima facie defamatory when its natural and obvious meaning leads to that conclusion.
Sometimes it may happen that the statement was prima facie innocent but because of some secondary
meaning, it may be considered to be defamatory. For this secondary instance plaintiff must prove the
secondary meaning i.e. innuendo which makes the statement defamatory.

Illustrations - Z makes a statement that X is an honest man and he never stole my watch. Now this
statement is at first instance may be innocent, but it can be defamatory if the person to whom it was
made, interprets from this that X is a dishonest man having stolen the watch.

23. SCIENTER RULE

What is the scienter rule in Tort law?

An animal keeper is strictly liable for damage caused by his dangerous species of animals. For example,
lions, bears, elephants, wolves, monkeys, etc.

Conversely, if a particular pet has a tendency to bite or attack humans, and if the owner is aware of it,
then the owner can be blamed. This rule is called 'Scienter rule'. For example, the animals included in
this category are dogs, horses, cows, sheep, cats, etc.
There is no need to prove whether concerned the animal has done such damage before. The only thing
to consider is whether the defendant knew such a tendency of the animal. So if the dog of 'A' bites ‘B’,
then‘B’ has to prove that 'A' was aware of the dog's attacking humans.

Example- 1 - ‘A’ binds a lion with an iron chain. The chain breaks even though there is no negligence of
‘A’ and the lion attacks ‘B’ when he came to see ‘A’.

In this case, the lion is a wild and ferocious animal. If someone keeps such an animal at home and harms
someone, his liability is absolute according to the Rylands v. Fletcher rule. In this case, even if he has no
negligence, he has to be responsible. Exceptions to these obligations do not include due diligence.
Therefore, ‘A’ will be responsible for hitting a legitimate visitor even if proper precautions are taken.

Example-2 - 'B' came to A's house wearing a black shirt and A's cow attacked and injured 'B'. Earlier, A's
cows attacked visitors in black shirts, which ‘A’ knew.

In this case, cows are usually calm and domesticated animals. So the owner's responsibility for the cow
is not absolute or certain. However, since the cow of ‘A’ is seen a tendency to attack the people wearing
a black shirt and the owner was aware of it. So ‘A’ will be responsible according to the ‘Scienter rule'.
However, in such a situation, if ‘B’ fails to take as much precaution as a common-sense person tries to
protect himself, ‘A’ can be exempted from liability.

Above all, the Rylands vs. Fletcher rule applies to wildlife or wildlife, but the ‘Sainter’ rule applies to
domesticated animals.

24. PIGEON HOLE THEORY

According to Salmond, “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 contract, or, the breach of trust, or,
other merely equitable obligation.”

The entire pigeon-hole theory laid down by Salmond seeks to answer two questions-

Should the law of torts be restricted to the torts that strictly fall within its purview?

Should every act deemed wrongful and committed without any justification, be classified as a tort?

According to Salmond, no single principle can be applied to ascertain the liability of the wrongdoer. Only
well-defined wrongs should be considered as tort and confined within a small box known as a pigeon
hole. He compared the domain of tort to that of a pigeon hole with a number of smaller holes. These
smaller holes would represent assault, slander, battery, malicious prosecution, and all the recognized
wrongs. He was against having a general approach to the law of tort. A remedy would be available for
only those wrongs which would fall under the established torts and the burden of proof would be on the
plaintiff to establish that the wrong would come under the ambit of a specific, identified tort. If a wrong
would not be a part of any of these holes, no claim could arise.

25. DAMAGES

There are many remedies which are available to the injured person and the most common remedy is the
award of damages. Damages is that amount of money which the injured person gets from the person
who caused injury to him.

In a claim for damages, the person should have suffered a legal injury because in case no legal injury
happens a person cannot claim damages even if he suffered an actual loss. It can be understood with the
help of these maxims:

Injuria sine damno, it means that there is a legal injury without any actual damage. Here the legal right
of an individual is violated therefore he has a right to go to the court to enforce such right.

Damnum sine injuria, it means that there is actual damage but no legal injury and thus the person
cannot go to the court to enforce his right because he has no such right in the absence of a legal injury.

Damages can be provided in the cases of injuria sine damno but not in a case of damnum sine injuria.

Another important point about ‘damages’ is that they are different from ‘damage’ even though they
both sound the same they have a different meaning. Damage is the loss suffered by the person due to
the wrongful act of another person whereas, Damages is the amount of money which is paid as
compensation for the injury suffered by a person.

So, damages are different from damage and it is one of the remedies which is available to the plaintiff.

Liquidated and Unliquidated damages

Liquidated and unliquidated damages are both provided whenever damage is suffered by a person
because of an unlawful act by another person and thus both are compensation paid to the injured
person but they both differ from each other.

Liquidated damages are those in which the amount of compensation which has to be paid to the injured
person is predetermined. It is usually paid in the cases of contracts where both the parties already know
each other before the damage is caused by any of them and thus the Courts only have to enforce the
condition of such damages.

Illustration: A enters into an agreement with B for selling his goods to B and in the terms of the contract
it has been specified that if the goods are defective then A will have to pay a compensation of Rs.500 to
B. If the goods turn out to be defective and B files a case against A then amount of Rs.500 will be paid by
A. Such compensation falls in the category of liquidated damages.

Unliquidated damages are those damages which are not predetermined which means the amount which
has to be paid is not decided before the injury happens to a person. Unliquidated damages are awarded
in cases of tort because often the parties to such a case do not know each other before the commission
of tort and therefore it is not possible for them to fix the amount of compensation beforehand.

Illustration: A commits the tort of trespass in B’s property and B brings a suit against him in the Court.
Here the award of damages which B will receive will be unliquidated damages, as the amount of
compensation will be determined by the Court.

26. APPEAL UNDER CONSUMER PROTECTION ACT , 1986

Section 27A in the Consumer Protection Act, 1986

99 [27A. Appeal against order passed under section 27.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974), an appeal
under section 27, both on facts and on law, shall lie from—

(a) the order made by the District Forum to the State Commission;

(b) the order made by the State Commission to the National Commission; and

(c) the order made by the National Commission to the Supreme Court.

(2) Except as aforesaid, no appeal shall lie to any court from any order of a District Forum or a State
Commission or the National Commission.

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of an
order of a District Forum or a State Commission or, as the case may be, the National Commission:
Provided that the State Commission or the National Commission or the Supreme Court, as the case may
be, may entertain an appeal after the expiry of the said period of thirty days, if, it is satisfied that the
appellant had sufficient cause for not preferring the appeal within the period of thirty days.]

27. CONSUMER DISPUTE

− “Consumer dispute” refers to a dispute where a consumer make a complaint against a person and the
person denies the allegations contained in the complaint.

TYPES OF CONSUMER DISPUTES :

Quality of products and services

Claims regarding failure to provide or complete services

Non-payment of bills

Return or retention of deposits

Contract interpretation
Dissolution of partnerships

Injury, loss or damage claims

Compliance with warranties

28. CENTRAL CONSUMER PROTECTION COUNCIL

Central Consumer Protection Authority (CCPA) promotes, protects and enforces the rights of consumers.

CCPA is a regulatory authority set up under Section 10(1) of the Consumer Protection Act, 2019.

It functions under the guidelines of The Minister of Consumer Affairs, Food and Public Distribution

It regulates matters linked to the violation of consumer rights, unfair trade practices, and misleading
advertisements.

The CCPA has an investigation wing; they may conduct an inquiry or investigation into the case of
violations of rules.

Central Consumer Protection Authority (CCPA) functions;

Inquiring into violations of consumer rights, investigating and taking appropriate action.

It could pass orders to recall goods or withdraw hazardous services, and refund the price paid.

It Issues directions to the concerned trader/ manufacturer/ endorser/ advertiser/ publisher to either
discontinue a false or misleading advertisement.

It imposes penalties on a manufacturer or an endorser of up to Rs 10 lakh and imprisonment for up to

two years for a false or misleading advertisement. In case of a subsequent offense, the fine may extend
to Rs 50 lakh and imprisonment of up to five years.

It Issues safety notices to consumers against unsafe goods and services.

29. CHARACTERISTICS OF TORT

* A tort is a civil wrong: One must be aware that there are two types of wrongs: Civil and Criminal
wrong. Tort comes under the purview of civil law and its wrong is known as a civil wrong. The distinction
becomes important because unlike in criminal law there is no punishment in civil laws and matter is to
be sued by a person himself and is not sued by the state further the compensation is granted in for of
unliquidated damages which is not the case in criminal law.

* A tort is an infringement of a right in rem: There are two types of rights, Right in rem and right in
persona. While the right in rem is available against the whole world whereas right in persona is available
against any particular individual.
Such as when a person contracts with another person and one of the parties has breached that contract,
then the person of whose contract has been breached can only sue the person who has breached the
contract. This is known as Right in persona i.e. one can sue to one whom he has contracted.

On the other side, every person has the right to the enjoyment of his own property and any person who
has violated or infringed he will be sued and liable to pay the compensation in the form of unliquidated
damages. This is known as right in rem which is available against the whole world. This way the tort law
in right in rem and is available against the whole world. There is no need for any pre-existing relation,
the only requirement is the existence of right and that right has been breached by a person.

Right in rem is not specific to any particular individual, which is the beauty of the Law of Torts, one can
sue a person who has breached a right with no relation at all.

* Torts deal with cases related to legal rights: It is fair enough that tort deals with an only violation which
is in relation to breach of a legal right. Though a person may economic or social loss but if it hadn’t
breached any legal person won’t have any recourse in court under tort law. Covered under this
characteristic there are two famous cases elaborating the topic. The first of this is Gloucester Grammar
School case, in this case the defendant has opened a school in front of already established school which
resulted in a decrease in the revenue of already established school, but the already established school
have no recourse under Law of torts though there has been economic loss to the established school but
there is no violation of any legal right, hence cannot be held liable under torts law, the following case is
adequate representation of Maxim Damnum Sine Injuria where there is damage to the party but no
legal injury has been done which means no violation of any legal right, hence damage or loss without
any legal loss. Thus, the court will not be able to take any action against it.

* Remedy in the form of Compensation: In torts Law, the remedy is awarded in the form of damages or
as unliquidated damages which are calculated by the court on the basis of loss caused. The method is
different from what is in the law of contracts where damages are already mentioned in the contract or
can be easily calculated according to the agreed terms. Also, from what is in criminal law where
punishment is given in the form of imprisonment.

These differences are owing to the nature of law and the objective that they fulfil in the society, such as
criminal law wants to create deterrence in the society so it recommends punishment so that it can be
set as an example in the society and no one should think of doing it again. Similarly, in contracts law, the
purpose is business fulfilment or shape a particular transaction, so they have damages in their requisite
forms such as special performance or pre-calculated damages. So is the case in torts law, the case is to
restore the parties in their original position owing to this reason the remedy is given in the form of
compensation so that the party can be restored to the original position.

* Rights are to be fixed by law: To claim a remedy for the violation of rights, the rights should be
recognized by the government. These rights can’t be self-declared rights for his own purpose, nor these
can be based on the previous consent of the parties. The right should be acceptable by the government
and these rights changes according to the needs of the society. The government should recognize there
exist duty on the defendant which he has failed to do and caused breached and that breach was
proximate for the loss caused otherwise the claim will fail to sustain.

* Law of Torts is totally based on precedents: Though precedents play an important role in the
development in any law, but in the case, the law of torts is the only source of law. There is a statute or
act that specifically deals with the Law of torts. Through this characteristic, the judgements of common
law become an important and only source that recognizes these rights as a subject of law.

* Torts law is uncodified: Codified laws are laws, which have written statutes and acts on that subject
and changes take place by the process of amendment in the parliament , it can be distinguished from
uncodified laws which don’t have any written statutes or acts and have to rely on precedents and case
laws and change can be possible without the intervention of the government. Thus, the law of torts is
totally based on precedent and developed through different case laws, it can be healthily said that law
of tort law is uncodified unlike Criminal law and Contract law which are completely codified, and
precedents don’t play a major role that it plays in Laws of Torts.

30.FALSE IMPRISONMENT

False imprisonment is the imprisonment of an individual by a law enforcement officer or a civilian, an

activity committed without lawful authority. Even though we call it false arrest, it is only a part of false
imprisonment. False arrest and false detention are named differently, but they are basically
indistinguishable and are hence held by the courts as a single tort.

Victims of false imprisonment can be compensated in three ways: habeas corpus, damages, and self-
help. If a person is unlawfully imprisoned, they may be released from such confinement by the writ of
habeas corpus. Being a tort, the vital rectification for false imprisonment is an action for damages for the
physical or mental suffering the victim faces, loss of reputation for the victim, or even malicious intent of
the accused. The victim can justly use force to escape captivity and not be charged for losses or
damages.

Elements of false imprisonment

The following are some major false elements:

The Intention Factor

The law of false imprisonment should usually be intentional. An average person is not liable for false
imprisonment unless they do something with a motive of confinement. Based on the evidence
presented before them, it is up to the judges to decide that the tort of false imprisonment is intentional.

Knowledge of the plaintiff

There is no need for the person alleged with false imprisonment to be aware of this freedom restriction;
for example, if a person is confined in a room and the plaintiff knows it only on entry, the room has
more than one entry. Even if they are not known to the plaintiff, the defendant will be liable.

Willful detention

False imprisonment must be intentional. If you accidentally close the door when someone is on the
other side, it will not be considered wrongful confinement as it falls under wrong detention. It involves
physically restricting a person from leaving the physical room or any similar confinement.

Remedies of false imprisonment

Action for loss

The basis of these damages involves injury, mental suffering, humiliation, injury to reputation, or
physical suffering to the person. There is no such rule mainly for assessing the damage, and it is left to
the court to decide.

Nominal and compensatory damages

If there are exemplary damages, the plaintiff is entitled to have an equal amount for the loss, but the
nominal award will be inadequate if there is more significant damage.

Punitive exemplary and aggravated losses

The court will also award exemplary or punitive damages if the imprisonment has been affected by
reckless design meant to injure and oppress.

Writ of habeas corpus

It is also considered a golden remedy by English law. This writ is a better means to release from
immediate, unlawful detention. It can be used in several criminal cases of false imprisonment.

Self-help

If detained unlawfully, they may use self-help groups to save themselves from unlawful arrest involving
reasonable force.

Defences of false imprisonment

Valid arrest: If a person is being arrested under the law and has enough cause to arrest that person due
to unlawful activities, it does not fall under false imprisonment.

Consent to restraint: If a person is confined with their consent, but without the presence of any fraud,
then they cannot claim to be a victim of imprisonment.
Probable cause: Establishing probable cause by action completely fails the false imprisonment or false
arrest. It is known that the conceivable cause test for detention is not based on any actual crime;
instead, it is objective-based on real crime on individuals.

31. EXTRA JUDICIAL REMEDIES

Remedies in Tort Law are of 2 types

Judicial Remedies: These are the remedies that the courts of law provide to an aggrieved party.

Extra-Judicial Remedies: If the injured party takes the law in their own hand (albeit lawfully), the
remedies are called extra-judicial remedies.

Extra-judicial Remedies in Tort

These are of five main types:

Expulsion of trespasser: A person can use a reasonable amount of force to expel a trespasser from his
property.

Re-entry on land: In this case, the owner of a property can remove the trespasser and re-enter his
property by using a reasonable amount of force.

Re-caption of goods: In this case, the owner of goods is entitled to recapture his/her goods from any
person whose unlawful possession they are in.

Abatement: In case of a nuisance, be it private or public, a person (the injured party) can remove the
object causing nuisance.

Distress Damage Feasant: Lastly, distress damage feasant. In this case, a person’s cattle/other beasts
move to another’s property and his crops are spoiled. The owner of the property is entitled to take
possession of the beasts until he is compensated for the loss suffered by him.

32. SIX CARPENTER'S CASE

The Six Carpenters’ Case 1610

In this case, the six carpenters entered an inn by the authority of law and consumed food and had fine
but refused to pay. They were held not liable under this doctrine and the court laid down three major
principles–

If a man abuses an authority given to him by law, he becomes a trespasser ab initio.

In an action of trespass, if an authority is pleaded, the subsequent abuse of that authority may be
removed.

A mere non-feasance does not account to such abuse as renders a man a trespasser ab initio
Trespass ab-initio

When a person has the authority of the law to enter upon the land of the another but later is guilty of an
act such as misfeasance or misconduct making his original entry tortuous. Here he is liable for damages
for both entering the land and further misconduct.

The following conditions must be fulfilled in order to apply the doctrine of trespass ab initio-

The authority must be given by law.

The subsequent act must be misfeasance.

33. RES IPSA LOCQUITUR

Res Ipsa Loquitor is a legal term which means ‘the thing speaks for itself.’[1] It is a very popular doctrine
in the law of torts; it is circumstantial or indirect evidence which infers negligence from the very nature
of the accident that has taken place and there is the absence of direct evidence against the defendant.
Res Ipsa Loquitor is applied when it can be said that without the defendant being negligent, the accident
would not have happened.

Background

Accidents happen all the time and many a time, it is because of someone’s negligence. And in the law of
torts, to prove somebody’s negligence, the burden of proof is on the plaintiff, that is, someone who is
the victim of the tort. It becomes really difficult to prove that the defendant was at fault and also to
gather evidence against his act or omission. Therefore, keeping this in mind, the principle of Res Ipsa
Loquitor came into force under which a plaintiff can use circumstantial evidence to establish negligence.

Elements of Res Ipsa Liquitor

Before claiming the tort of Res Ipsa Loquitor, a plaintiff must meet a few requirements to claim
compensation

The event that caused injury to the plaintiff does not occur unless someone has acted negligently.

The evidence adduced rules out all the possibilities of the fault of the plaintiff or third party.

There is a duty of care of defendant towards the plaintiff which he breached.

DEVELOPMENT OF THE PRINCIPLE

The roots of the principle are in common law countries, which are England in the case of Byrne v.
Boadle. The facts of the case were that in 1863 in England, a barrel of flour fell from a two-storey
building and hit the plaintiff’s head, but the plaintiff could not acquire direct evidence against defendant
to allege negligence on his part. But the court held the judgment for the plaintiff and opined that the
circumstances were different in this case, and there could be a presumption of negligence.
34. RE POLEMIS

Re Polemis and Furness, Wilthy & Co.

This case, popularly referred to as the Re Polemis Case, was the landmark case on the test of directness.
The Courts of Appeal held the test of reasonable foresight to be the relevant test whereas later the Privy
Council upheld the test of directness.

The relevant facts of the case are that the defendants chartered a ship to carry cargo. The cargo
included a quantity of Petrol and/or Benzene in tins. There was a leakage in the tins and some oil was
collected in a hold of the ship. Now, owing to the negligence of the defendant’s servants, a plank fell in
the hold and consequently sparks were generated. As a result of those sparks, the ship was totally
destroyed by fire.

In this case, the Privy Council held the owners of the ship entitled to recover the loss, although such a
loss could not have been foreseeably seen by the defendants. It was held that since the fire (and the
subsequent destruction of the ship) was a direct consequence of the defendant’s negligence, it was
immaterial whether the defendant could have reasonably foreseen it or not. As per Scrutton, L.J.:

“Once an act is negligent, the fact that its exact operation was not foreseen is immaterial.”

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LONG ANSWERS - 13 MARKS

1.