Notes on Tort Law- Introduction, Definitions of Tort Law
1) Introduction
Tort originates from the Latin word ‘tortum’ for wrong or injury. It is a
breach of a general duty towards others, not to be confused with a breach
of contract, which is a duty towards a specific person.
A tort is defined as a civil wrong. The difference between civil law and
criminal law is essential for the understanding of torts. Criminal law deals
with acts called crimes that cause damage to an individual as well as a
society at large, for e.g., murder or rape. Civil law deals with acts that
cause harm to individuals, but not the society, for e.g. causing nuisance.
In civil wrongs, the aggrieved receive compensation from the accused,
while for crimes; the accused is punished through imprisonment or fine.
This fine is not paid to the victim but to the Government.
2) Types of Torts
Torts can be broadly classified into three categories:
1. Intentional Torts: Actions deliberately carried out to cause harm, such as
assault, battery, or defamation.
2. Negligence: Failing to exercise reasonable care, leading to unintentional
harm, such as in car accidents or medical malpractice.
3. Strict Liability: Liability imposed without proof of fault, as in cases
involving hazardous activities or defective products.
A. Essential Elements of a Tort
1. A wrongful act or omission– A person accused of committing a tort
should have done an act or refrained from doing an act that was expected
from them. If they had a legal duty to do and act, they can be made liable if
they fail to perform it.
2. Existence of a Legal Right- The plaintiff must have a legal right which
could not be fulfilled because of the action of the defendant.
3. Resulting in legal damage- This particular act or omission should have
caused some damage to the complainant, or resulted in an infringement of
their rights.
Definition of Torts
Here are several famous definitions of torts; however, Sir Fredrick
Pollock’s definition captures the essence of torts and its distinction from
contracts most clearly. He defines torts as “An act or omission (not
merely the breach of a duty arising out of personal relations, or
undertaken by a contract which is related to harm suffered by a
determinate person, giving rise to a civil remedy which is not an
action of contract.”
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.”
Definitions of Important Terms
A tortfeasor is a person who commits a tort. When multiple people commit
a tort, they are called joint tortfeasors.
A tortious act is a wrongdoing for which the persons committing such an
act can be sued.
A Plaintiff is the person who has been wronged and defendant is the
person who has been accused of the wrongdoing.
Injury and Damage
In the context of tort law, the terms injury and damage are often used
interchangeably, but they have distinct legal meanings. Without these two
important concepts, it is almost impossible to properly understand the law
of torts. These are:
1. Damnum Sine Injuria (Damage without injury)
When a person’s rights have been violated without an actual loss or
physical injury, such damage is called damnum sine injuria. A famous
example of such an injury is Ashby v. White, where Mr. Ashby was
prevented from voting by Mr. White. He was granted compensation
because his legal right was infringed, even though there were no damages.
Similar case in Indian context is Bhim Singh v State of J&K.
2. Injuria Sine Damnum (Injury without Damage)
When a person suffers physical damage without the infringement of a legal
right, it is known as injuria sine damnum. Such damages are not a cause
for action under tort law. These are moral wrongs which do not cause
objection in the eyes of the law.
An example of this can be the Gloucester Grammar School case, where
the school filed a case against the defendant demanding compensation for
opening a new school near them, thereby reducing their income. It was
held that the act of opening a new school is not an actionable wrong.
Therefore, now we know that only legal damages are actionable under the
law of torts.
Difference between Tort, Crime and Breach of Contract
A crime is an illegal act that harms the society as well as an individual,
while tort is a wrongful act causing damage to an individual.
A breach of contract is failure to carry out a duty undertaken by signing a
contract.
Crime violates the public rights of an individual while torts and breach of
contract harm the individual rights of a person.
Compensation is received by the aggrieved for breach of contract or
commission of Tort, while in case of crimes, an accused is mostly
sentenced for committing the crime.
In cases of Torts, damages are not fixed, and are known as unliquidated
damages, while in case of breach of contracts, damages are usually fixed
according to the terms of a contract.
Punishment for crimes is fixed according to the Indian Penal Code or any
other Act that the crime is defined under.
Types of Tort
A tort is a civil wrong that entitles the person wronged, known as the
plaintiff, to compensation paid by the person at fault, known as the
tortfeasor(s). A tort comprises of a wrongful act that causes legal damage
and has a legal remedy. Tort law has evolved with history, private property
ownership, and industrialization giving rise to new categories of Tort.
There are three major types of Torts:
1. Intentional Torts
2. Negligence
3. Strict Liability Torts
Intentional Torts
These torts comprise of acts that are done intentionally and cause damage
to a person. Assault, battery, nuisance, trespass and conversion are some
intentional torts that we will
earn about in further detail.
A) Assault and Battery
These two torts and closely related and hence studied together. Battery
refers to intentional application of force against a person. Assault refers to
an action that causes apprehension of battery. If an A raises their hand to
slap B, the raising of the hand, which causes a fear of getting slapped, is
assault. When A’s hand actually hits B, it becomes battery.
Reasonable apprehension is important for assault. This was held in R v St.
George, when the Court said that only pointing an unloaded gun will not
amount to assault, but if it is held too close, there is a reasonable
apprehension to be hit by the gun, thus amounting to assault. In Collison v
Medley, the Court said that no physical touch is required for assault, there
should only be a fear of battery in the mind of the plaintiff due to actions of
the tortfeasor.
Battery under tort law is a civil wrong. If a person inflicts force on another
that causes
some damage, it amounts to battery. Whether the force was intentional or
not is of no consequence in this particular scenario.
In Cole v Turner, the Court held that violence against another person is
battery and battery does not include gently touching another. In Garrat v
Dailey, the Court held that a minor was liable for battery, for pulling the
chair of the plaintiff who broke their hip. In Talmage v Smith the position of
intention in battery was clarified by the court. Even if a tortfeasor intended
to inflict injury on a specific person and more people get injured, the
tortfeasor will be liable for damage caused to all parties involved. This
proves that intention is not important for tort law.
In cases of assault or battery, the plaintiff is entitled to recovery of damages
and compensation, which can include medical expenses and compensation
for mental trauma etc.
B) Trespass
Trespass generally refers to entering someone’s property without
permission of the owner or in-charge of the property. This is specifically
referred to as ‘trespass to land’ because assault and battery is also called
‘trespass to body’. This is because the word trespass has a wider
connotation which refers to at least two types of torts.
There are two elements to commission of the tort of trespass to land:
1. Entering into someone’s land or property
2. Without the owner’s permission
Trespass follows from the right of the owner of a property to enjoy their
property quietly and peacefully. Trespass violates this legal right. If a
person withdraws their permission to be on the land, the unlawful presence
of a person becomes trespass. This is termed as trespass ab initio, which
means that trespass would be considered to have taken place from the
very beginning of the trespasser’s presence on the land.
Remedies against the tort of trespass include a suit for recovery of the
land, compensation and suit for mesne profit. Mesne profits are
compensation for loss of the profit that the owner of the property receives
from it.
C) Conversion
When a person wrongfully gains possession of another person’s good and
derives unfair advantage from the same, this is termed to be the tort of
conversion. The three essential components of this tort are:
1. Wrongfully gaining possession
2. Abusing possession of goods
3. Denying the title of goods to the actual owner
If A intends to wrongfully gain possession of B’s gold ring and eventually
does that, the act
amounts to conversion. Even if the possession is not gained wrongfully, if a
person having rightful possession abuses the same, it will amount to
conversion. For example, if A gives their gold ring to B to keep safe
because they are going abroad and B sells the ring, this will amount to
conversion because even though B had rightful possession of the property
entrusted to them by A, they abused the possession for their unlawful gain.
In Richardson v. Atkinson the plaintiff’s wine cask had some wine that
the defendant removed. After taking some, the defendant filled the barrel
with water. It was ruled in court that the defendant was responsible for the
tort of conversion since he intended to take the plaintiff’s wine.
D) False Imprisonment
Restraining a person’s movement and liberty without lawful sanction is
known as false imprisonment. If movement is blocked from all sides but
one, it will not amount to false imprisonment as the person is free to move.
However, if the person is not aware that one side is not restrained, then it
shall amount to false imprisonment. If the person has consented to being
restrained, it will not amount to false imprisonment. Police and other public
authorities restraining an individual according to the law will not be liable for
false imprisonment. However, if the police officer is not authorized to arrest
and is aware of the fact, they shall be liable for false imprisonment.
The essential elements for wrongful restraint are:
1. Total restrainment of the liberty and movement of an individual.
2. No lawful excuse for doing the same.
E) Nuisance
Nuisance is causing annoyance or hurt to any person or interfering with
their use or enjoyment of some right or property. It is further bifurcated into
public and private nuisance.
Public nuisance is caused when someone through their actions, affects the
peace and tranquillity of the society at large. For example, making
incessant noise in a neighbourhood amounts to public nuisance.
Private nuisance refers to causing disturbance and obstruction in the usage
of an individual’s property. So if your plumbing system is faulty and the
water is seeping to your neighbor’s apartment and damages their things, it
will amount to nuisance. Compensation for damage caused and agony
suffered by the plaintiff is awarded for nuisance.
General Defences in Tort Law
General defences can be explained as a special set of circumstances, due
to the existence of which, a tortfeasor can be absolved from liability even
though they fulfil all the elements of the act. In simpler words, they are an
‘excuse’ for committing a tort.
General defences apply to all torts, while specific defences are related to
specific offences and used only for them, for example, the defences of truth
and privileged are applicable to defamation only.
Now we will discuss some important general defences in Tort Law,
which can be used by a tortfeasor to defend their act.
A) Volenti Non-Fit Injuria
Volenti non fit injuria is a Latin phrase which means “to a willing person,
injury is not done”. This is often called the defence of consent. When a
person consents to suffering and injury is then caused to them by the
tortfeasor, the person does not have a legal right to damages. In simpler
words, if a tort is committed, and damages are claimed, the tortfeasor will
be absolved of liability, if they can prove to the court that the plaintiff
consented to the harm or risk of harm.
Often, this principle is seen in consent forms for medical treatment or
adventure sports like bungee jumping or sky diving. A famous case about
the duty of care of owners of a racing track is Hall v. Brooklands. The
Court held that the owners did not have a duty to protect spectators from
unforeseeable risks. Another landmark case on employee’s consent to risk
is Smith v. Baker where the courts held that an employee whose work
does not entail dangerous activity cannot be said to have consented to risk
of injury from other department’s work.
An important requirement of volenti non fit injuria is that the consent
from the plaintiff should not be acquired by fraud or vitiated in any other
manner. Consent should be free and can be either express or implied. In
short, the rules of consent that apply to Law of Contracts also apply to this!
B) Plaintiff’s Fault
The principle behind this defence is a really simple one, if the plaintiff is
himself at fault, then no liability arises out of a tortious act by the defendant.
This is different from volenti non fit injuria, because here an act of the
plaintiff leads them to suffer harm while in the former, the plaintiff consents
to the harm.
An example of this can be, if someone is knowingly drunk and driving, they
cannot sue for damages if they meet an accident. Similarly if a person
ignores a cautionary sign and trespasses into a property, they cannot sue
the owner for damages.
C) Act of God
This is also known as Force Majeure. This is an instance when an
unforeseeable event over which the defendant has no control takes place.
It is defined as an extraordinary event that can be caused by forces of
nature. This is a general defence that applies to law of torts as well.
Covid 19, for example, can be considered to be Force Majeure as many
contracts could not be fulfilled on account of lockdowns, deaths and other
mishaps caused by the pandemic. The defence of force majeure applies
only when the event that occurs is not foreseeable. In the case of Kallu Lal
v Hemchand, the Court held that an owner of a dilapidated building was
liable because the building collapsed after normal rainfall. The owners tried
to escape liability by using the defence of force majeure however, the court
held that normal rainfall cannot be considered to be force majeure.
D) Private Defence
The right to private defence is the right to protect your life and property, as
well as the life and property of others. A tortious act done in exercise of self
defence shall not be punished.
However, there are three essential elements that should be present to
avail the defence-
1. The threat should be imminent.
2. Force should be used only to protect life or property.
3. Force used should be proportional to the threat.
This defence applies only when the threat is immediate. If the person is
already aware of the threat and has enough time to inform the authorities,
the defence will not apply. Similarly in case of theft, if the thieves are
running away then there is no threat and right to private defence will not
apply. If in an attack, the attacker does not have a weapon, then shooting
them such that death may occur will not warrant the right to self defence as
force used is not proportional.
E) Statutory Authority
When an act is authorised by law, even if it amounts to a tort, it will not lead
to liability. The most common example of this is police officers. In the
course of investigation and arrest, they have certain rights accorded to
them by various statutes. Therefore, if a police officer enters into a property
to investigate or effect an arrest, they cannot be held liable for trespass.
Shield of this defence applies to: (i) Obvious Harm (ii) Incidental Harm
Though not a case related to tort law, in Kasturilal Ralia Ram Jain v.
State of UP, police suspected that the plaintiff had stolen gold and seized it
from him. A constable took the seized gold and fled to Pakistan. the Court
allowed the Government to claim the defence of statutory authority, even
when the government officials were at fault and negligent in their duty.
State of Rajasthan v. Vidyawati: This case dealt with the vicarious liability
of the State when the employee of the State does some tortious act. In this
case, a pedestrian was killed by a vehicle in use of the State Government.
The State was held liable for tortious act of its servant.
F) Act of Necessity
This defence is based on the Latin maxim: ‘necessitas inducit
privilegium quod jura privata’ which means that “Necessity induces a
privilege because of a private right”). This can be applied when the risk of
harm to an individual or society is greater than the harm to the property.
The difference between this and self-defence lies in the fact that, unlike the
privilege of self-defense, those who use the defence of act of necessity are
usually free from any wrongdoing. For example, in the case of Leigh v.
Gladstone, Leigh was imprisoned and went on a hunger strike and was
later fed by the prison warden. The warden was accused of trespass
against person and took the defence of act of necessity and succeeded.
R v. Dudley & Stephens: Necessity is not a defence to charge of murder.
A yacht was wrecked and part of the crew was left out in the sea without
any provisions. The crew ran out of food on the 12th day and they killed
and ate the ship’s cabin boy who had already fallen sick and would have
died anyway. Once they were rescued, they were charged with murder and
took the defence of act of necessity. However, it was held that this wasn’t
an act of necessity.
These are a few important defences, that can absolve liability of a tortious
act. It is important to note that these defences will also apply to other cases
and are not limited to the law of Torts.
