LAW RELATING TO TORTS

Introduction

1. The word ‘tort’ is a French equivalent of English word ‘wrong’. ( A conduct which is twisted or
wrong)
2. The word tort is derived from Latin language from the word Tortum( means twisted).
3. It is a Common Law and thus not codified (written)
4. Tort is really a kind of civil wrong as opposed to criminal wrong.
5. Wrongs, in law, are :
(a)public : public wrongs are the violations of ‘public law and hence amount to be offences
against the State. Public wrongs or crimes are those wrongs which are made punishable
under the penal law which belong to the public law group.
(b) private: private wrongs are the breaches of private law, i.e., wrongs against individuals.

Some definitions of “Tort”:

1.Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not exclusively a
breach of contract or breach of trust.”

Two important elements can be derived from all these definitions, namely:

(i) that a tort is a species of civil injury of wrong as opposed to a criminal wrong, and
(ii) that every civil wrong is not a tort.
 No Crime Civil wrongs

1) Crime is a Wrong against Society Civil Wrong is against a private individual or individuals

2) Remedy against crime is Punishment Remedy against civil wrong is Damages

3) The proceeding in case of Crime are criminal In case of Civil wrong are civil proceedings
proceeding

4) In Crime intention is essential element. In civil it is not relevant

5) In Crime , State takes action against Criminal Aggrieved person takes action

General Conditions of Liability for a Tort/ Essential elements of a tort

In general, a tort consists of some act or omission done by the defendant (tortfeasor) whereby he has
without just cause or excuse caused some harm to plaintiff. To constitute a tort, there must be:

(i) Wrongful act: The act complained of, should under the circumstances, be legally wrongful as regards
the party complaining. Thus, every person whose legal rights, e.g., right of reputation, right of bodily
safety and freedom, and right to property are violated without legal excuse, has a right of action against
the person who violated them, whether loss results from such violation or not. Other party has legal
remedy in terms of damages/compensation

(ii) Legal damages: it is not every damage that is a damage in the eye of the law. It must be a damage
which the law recognizes as such. In other words, there should be legal injury or invasion of the legal
right. In the absence of an infringement of a legal right, an action does not lie.

Also, where there is infringement of a legal right, an action lies even though no damage may have been
caused (e.g. trespass).

Legal damage is neither identical with actual damage nor is it necessarily pecuniary.

There are two maxims for it:

(i) Damnum sine injuria, and

Damnum Sine Injuria

 Damnum means harm, loss or damage in respect of money, comfort, health, etc.
 Injuria means infringement of a right conferred by law on the plaintiff.
  The maxim means that in a given case, a man may have suffered damage and yet have no action
in tort, because the damage is not to an interest protected by the law of torts. Therefore,
causing damage, however substantial to another person is not actionable in law unless there is
also a violation of a legal right of the plaintiff.
 Common examples are, where the damage results from an act done in the exercise of legal rights.
Thus, if I own a shop and you open a shop in the neighbourhood, as a result of which I lose some
customers and my profits fall off, I cannot sue you for the lose in profits, because you are exercising
your legal right.

Injuria Sine Damnum

 It means injury without damage, i.e., where there is no damage resulted yet it is an injury or
wrong in tort, i.e. where there is infringement of a legal right not resulting in harm but plaintiff
can still sue in tort.
 Some rights or interests are so important that their violation is an actionable tort without proof
of damage.
 Thus when there is an invasion of an “absolute” private right of an individual, there is an injuria
and the plaintiff’s action will succeed even if there is no Damnum or damages. An absolute right
is one, the violation of which is actionable per se, i.e., without the proof of any damage.
 Injuria sine damnum covers such cases and action lies when the right is violated even though no
damage has occurred.
 Thus the act of trespassing upon another’s land is actionable even though it has not caused the
plaintiff even the slightest harm.
 Ashby v. White: A qualified voter in parliamentary election was wrongfully stopped by returning
officer from voting, the candidate for whom he wants to vote won. Therefore, he suffered no loss
but he filed case for infringement of his legal right to vote. Plaintiff was held to be entitled to
damages.

(iii) Legal remedy: The third condition of liability for a tort is legal remedy. This means that to
constitute a tort, the wrongful act must come under the law.
 The main remedy for a tort is an action for unliquidated damages,
 Injunction, may be obtained in addition to damages or
 Specific restitution may be claimed in an action for the detention of a chattel.
 Self-help is a remedy of which the injured party can avail himself without going to a law
court. It does not apply to all torts and perhaps the best example of these to which it
does apply is trespass to land.
 For example, if “A” finds a drunken stranger in his room who has no business to be
there in it, and is thus a trespass, he (A) is entitled to get rid of him, if possible without
force but if that be not possible with such force as the circumstances of the case may
warrant.
(iv) Mens Rea: How far a guilty mind of persons is required for liability for tort?

The General principle lies in the maxim “actus non facit reum nisi mens sit rea” i.e. the act itself creates
no guilt in the absence of a guilty mind. It does not mean that for the law or Torts, the act must be done
with an evil motive, but simply means that mind must concur in the Act, the act must be done either
with wrongful intention or negligence. However, to this principle cases of absolute or strict liability are
exceptions.

Kinds of Tortious Liability

(A) Strict or Absolute Liability

(A) Strict or Absolute Liability

In some torts, the defendant is liable even though the harm to the plaintiff occurred without intention
or negligence on the defendant’s part. In other words, the defendant is held liable without fault. These
cases fall under the following categories:

(i) Liability for Inevitable Accident – Such liability arises in cases where damage is done by the escape of
dangerous substances brought or kept by anyone upon his land. Such cases are where a man is made by
law an insurer of other against the result of his activities.

(ii) Liability for Inevitable Mistake – Such cases are where a person interferes with the property or
reputation of another.

Rule in Rylands v. Fletcher

The rule in Rylands v. Flethcer (1868 is that a man acts at his peril and is the insurer of the safety of his
neighbour against accidental harm. Such duty is absolute because it is independent of negligence on the
part of the defendant or his servants. It was held in that case that: “If a person brings or accumulates on
his land anything which, if it should escape may cause damage to his neighbours, he does so at his own
peril. If it does not escape and cause damage he is responsible, however careful he may have been, and
whatever precautions he may have taken to prevent damage.”

The facts of this case were as follows:

(1) B, a mill owner employed independent contractors, who were apparently competent to
construct a reservoir on his land to provide water for his mill.
(2) There were old disused mining shafts under the site of the reservoir which the contractors failed
to observe because they were filled with earth.
(3) The contractors therefore, did not block them.
(4) When the water was filled in the reservoir, it bursts through the shafts and flooded the
plaintiff’s coal mines on the adjoining land.
Findings:
 B did not know of the shafts and had not been negligent, though the independent
contractors, had been, B was held liable.

Decision:Blackburn, J., observed; “We think that the true rule of law is that the person, who for his own
purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes,
must keep it at his peril and if, he does not do so is, prima facie answerable for all the damage which is
the natural consequence of its escape.”
Later in the caser of Read v. Lyons ,it has been explained that two conditions are necessary in order to
apply the rule in Ryland v. Fletcher, these are:

(i) Escape from a place of which the defendant has occupation or over which he has a control to a place
which is outside his occupation or control or something likely to do mischief if it escapes; and

(ii) Non-natural use of Land: The defendant is liable if he makes a non-natural use of land.

If either of these conditions is absent, the rule of strict liability will not apply.

Exceptions to the Rule of Strict Liability

The following exceptions to the rule of strict liability have been introduced in course of time, some of
them being inherent in the judgment itself in Ryland v. Fletcher:

(i) Damage due to Natural Use of the Land

In Ryland v. Fletcher, water collected in the reservoir in such large quantity, was held to be nonnatural
use of land. Keeping water for ordinary domestic purpose is ‘natural use’. Things not essentially
dangerous which is not unusual for a person to have on his own land, such as water pipe installations in
buildings, the working of mines and minerals on land, the lighting of fire in a fire-place of a house, and
necessary wiring for supplying electric light, fall under the category of “natural use” of land.

(ii) Consent of the plaintiff

Where the plaintiff has consented to the accumulation of the dangerous thing on the defendant’s land,
the liability under the rule in Ryland v. Flethcher does not arise. Such a consent is implied where the
source of danger is for the ‘common benefit’ of both the plaintiff and the defendant.

(iii) Act of Third Party

If the harm has been caused due to the act of a stranger, who is neither defendant’s servant nor agent
nor the defendant has any control over him, the defendant will not be liable.

(iv) Statutory Authority

Sometimes, public bodies storing water, gas, electricity and the like are by statute, exempted from
liability so long as they have taken reasonable care.

(v) Act of God

If an escape is caused, through natural causes and without human intervention circumstances which no
human foresight can provide against and of which human prudence is not bound to recognize the
possibility, there is then said to exist the defence of Act of God.

(vi) Escape due to plaintiff’s own Default

Damage by escape due to the plaintiff’s own default was considered to be good defence in Rylands v.
Fletcher itself. Also, if the plaintiff suffers damage by his own intrusion into the defendant’s property, he
cannot complain for the damage so caused.
 Applicability of the rule in Rylands v. Fletcher in cases of enterprises engaged in a hazardous or
inherently dangerous industry.

The Supreme Court has discussed the applicability of the rule of Rylands v. Fletcher in the case of M.C.
Mehta v. Union of India and Others (1987)( originated in the aftermath of oleum gas leak from Shriram
Food and Fertilisers Ltd. complex at Delhi. This gas leak occurred soon after the infamous Bhopal gas
leak and created a lot of panic in Delhi.) While determining the principles on which the liability of an
enterprise engaged in a hazardous or inherently dangerous industry depended if an accident occurred in
such industry.

“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous
industry which poses a potential threat to the health and safety of the persons working in the factory
and residing in the surrounding areas, owes an absolute and non-delegable duty to the community to
ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the
activity which it has undertaken. The enterprise must be held to be under an obligation to provide that
the hazardous or inherently dangerous activity in which it is engaged, must be conducted with the
highest standards of safety; and if any harm results on account of such activity, the enterprise must be
absolutely liable to compensate for such harm; and it should be no answer to the enterprise to say that
it had taken all reasonable care and that the harm occurred without negligence on its part.”

Thus, while imposing absolute liability for manufacture of hazardous substances, the Supreme Court
intended that the requirement of non-natural use or the aspect of escape of a dangerous substance,
commonly regarded as essential for liability under Rylands v. Fletcher, need not be proved in India.

(B) Vicarious Liability

Normally, the tortfeasor is liable for his tort. But in some cases a person may be held liable for the tort
committed by another. A master is vicariously liable for the tort of his servant, principal for the tort of
his agent and partners for the tort of a partner. This is known as vicarious liability in tort. The common
examples of such a liability are:

(a) Principal and Agent [Specific authority]

Qui facit per alium facit per se – he who acts through another is acting himself, so that the act of the
agent is the act of the principal. When an agent commits a tort in the ordinary course of his duties as an
agent, the principal is liable for the same.

(b) Partners

For the tort committed by a partner in the ordinary course of the business of the firm, all the other
partners are liable therefore to the same extent as the guilty partner. The liability of the partners is joint
and several. In Hamlyn v. Houston & Co., one of the two partners bribed the plaintiff’s clerk and induced
him to divulge secrets relating to his employer’s business. It was held that both the partners were liable
for the tort committed by only one of them.

(c) Master and Servant [Authority by relation]

A master is liable for the tort committed by his servant while acting in the course of his employment.
The servant, of course, is also liable; their liability is joint and several.
 (d) Employer and Independent Contractor

It is to be remembered that an employer is vicariously liable for the torts of his servants committed in
the course of their employment, but he is not liable for the torts of those who are his independent
contractors.

A servant is a person who is employed by another (the employer) to perform services in connection with
the affairs of the employer, and over whom the employer has control in the performance of these
services. An independent contractor is one who works for another but who is not controlled by that
other in his conduct in the performance of that work.

A person is a servant where the employer “retains the control of the actual performance” of the work.

(C) Vicarious Liability of the State

The Position in India

When a case of Government liability in tort comes before the courts, the question is whether the
particular Government activity, which gave rise to the tort, was the sovereign function or non-sovereign
function. It is a sovereign function it could claim immunity from the tortuous liability, otherwise not.
Generally, the activities of commercial nature or those which can be carried out by the private individual
are termed as non-sovereign functions.

TORTS OR WRONGS TO PERSONAL SAFETY AND FREEDOM

An action for damages lies in the following kinds of wrongs which are styled as injuries to the person of
an individual:

(a) Battery

Any direct application of force to the person of another individual without his consent or lawful
justification is a wrong of battery. To constitute a tort of battery, therefore, two things are necessary:

(i) use of force, however, trivial it may be without the plaintiff’s consent, and
(ii) without any lawful justification.

Even though the force used is very trivial and does not cause any harm, the wrong is committed. Thus,
even to touch a person in anger or without any lawful justification is battery.

(b) Assault

Assault is any act of the defendant which directly causes the plaintiff immediately to apprehend a
contact with his person. Thus, when the defendant by his act creates an apprehension in the mind of the
plaintiff that he is going to commit battery against him, the tort of assault is committed. The law of
assault is substantially the same as that of battery except that apprehension of contact, not the contact
itself has to be established. Usually when there is a battery, there will also be assault, but not for
instance, when a person is hit from behind:

(a) To point a loaded gun at the plaintiff, or

(c) Bodily Harm

A willful act (or statement) of defendant, calculated to cause physical harm to the plaintiff and in fact
causing physical harm to him, is a tort.

(d) False Imprisonment

False imprisonment consists in the imposition of a total restraint for some period, however short, upon
the liberty of another, without sufficient lawful justification. It means unauthorized restraint on a
person’s body. What happens in false imprisonment is that a person is confined within certain limits so
that he cannot move about and so his personal liberty is infringed. It is a serious violation of a person’s
right and liberty whether being confined within the four walls or by being prevented from leaving place
where he is. If a man is restrained, by a threat of force from leaving his own house or an open field there
is false imprisonment.

(e) Malicious Prosecution

Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another,
maliciously and without reasonable and probable cause, which terminate in favour of that other and
which results in damage to his reputation, personal freedom or property.

The following are the essential elements of this tort:

(i) There must have been a prosecution of the plaintiff by the defendant.

(ii) There must have been want of reasonable and probable cause for that prosecution.

(iii) The defendant must have acted maliciously (i.e. with an improper motive and not to further the end
of justice).

(iv) The plaintiff must have suffered damages as a result of the prosecution.

(v) The prosecution must have terminated in favour of the plaintiff.

To be actionable, the proceedings must have been instigated actually by the defendant. If he merely
states the fact as he believes them to a policeman or a magistrate he is not responsible for any
proceedings which might ensue as a result of action by such policeman or magistrate on his own
initiative.

(f) Nervous Shock

This branch of law is comparatively of recent origin. It provides relief when a person may get physical
injury not by an impact, e.g., by stick, bullet or sword but merely by the nervous shock through what he
has seen or heard. Causing of nervous shock itself is not enough to make it an actionable tort, some
injury or illness must take place as a result of the emotional disturbance, fear or sorrow.

(g) Defamation

Defamation is an attack on the reputation of a person. It means that something is said or done by a
person which affects the reputation of another. It is defined as follows:

“Defamation is the publication of a statement which tends to lower a person in the estimation of right
thinking members of society generally; or which tends to make them shun or avoid that person.”

Defamation may be classified into two heads:

(i)Libel : Libel is a representation made in some permanent form, e.g. written words, pictures,
caricatures(cartoon), cinema films, effigy, statue and recorded words. In a cinema films both the
photographic part of it and the speech which is synchronized with it amount to tort.

(ii)Slander.

Slander is the publication of a defamatory statement in a transient form; statement of temporary nature
such as spoken words, or gestures.

Generally, the punishment for libel is more severe than for slander.

Defamation is tort as well as a crime in India.

In India both libel and slander are treated as a crime. Section 499 of the Indian Penal Code recognizes
both libel and slander as an offence. However, torts in criminal law are stricter than in law of tort.

REMEDIES IN TORTS

Judicial Remedies

Three types of judicial remedies are available to the plaintiff in an action for tort namely:

(i) Damages,
(ii) Injunction, and
(iii) Specific Restitution of Property.

Extra Judicial Remedies

In certain cases it is lawful to redress one’s injuries by means of self help without recourse to the court.
These remedies are:

(a) Self Defence

It is lawful for any person to use reasonable forces to protect himself, or any other person against any
unlawful use of force.

(b) Prevention of Trespass

An occupier of land or any person with his authority may use reasonable force to prevent trespassers
entering or to eject them but the force should be reasonable for the purpose.
(c) Re-entry on Land

A person wrongfully disposed of land may retake possession of land if he can do so in a peaceful and
reasonable manner.

(d) Re-caption of Goods

It is neither a crime nor a tort for a person entitled to possession of a chattel to take it either peacefully
or by the use of a reasonable force from one who has wrongly taken it or wrongfully detained it.

(e) Abatement of Nuisance

The occupier of land may lawfully abate (i.e. terminate by his own act), any nuisance injuriously affecting
it. Thus, he may cut overhanging branches as spreading roots from his neighbour’s trees, but

(i) upon giving notice;

(f) Distress Damage Feasant

An occupier may lawfully seize any cattle or any chattel which are unlawfully on his land doing damage
there and detain them until compensation is paid for the damage. The right is known as that of distress
damage feasant-to distrain(seize in order to recover damages) things which are doing damage.