LAW OF TORTS

The term derives from Latin tortum, meaning “something twisted, wrung, or crooked.”
The concept encompasses only those civil wrongs independent of contracts. The word
Tort is derived from the Latin term Tortum which means “twisted”. The term is French
equivalent of the English word wrong and the Roman law term delict.

The law of Tort in India is developed and evolved from the law of Torts in UK. Most
popularly known as “judge made law” this law does not come from a statute and is not
codified. Irrespective of this, it has been in existence over a number of years, however
the instances for cases under tort have been reducing. Compared to the number of
cases under Tort law filed in the UK and USA, the Tort litigation in India is low. Although
a helpful form of law, many reasons can be attributed to the lower amount of Tort
cases, mainly because it is believed that cases under Torts are not pursued as
vigorously as they are in UK and USA.

In simple terms, tort can be defined as an act conducted by one person towards another
person which causes harm to the other person. This act of wrongdoing causes either
injury to the other person or harm. By injury we mean - invasion of a legal right of a
person and by harm it is meant - causation of any loss or detriment to person which
leads to his suffering. The intensity of Tort is further determined by whether the act was
intentionally caused in order to inflict act on the other person or weather the person
acted in a negligent manner which eventually caused harm to the other person.

The Indian law of Tort is shaped after the principles of Tort law developed in UK. In fact,
most of the landmark judgments used in an action of Tort in India are from the House
of Lords / Courts in England. The cases of Tort in India are tried in Civil courts and the
relief includes damages by way of monetary compensation or an order for injunction or
restitution.

Law of Torts is a body of obligations, and remedies that is applied by courts in civil
proceedings to provide relief for persons who have suffered harm from the wrongful
acts of others.

The person who sustains injury or suffers pecuniary damage as the result of tortuous
conduct is known as the plaintiff (injured party), and the person who is responsible for
inflicting the injury and incurs liability for the damage is known as the defendant or tort
feasor.

Tort law governs the remedies for civil wrongs. A person is liable for the wrongful act,
whether done accidentally or intentionally. The injured or the aggrieved party is
compensated by the payment for damages.
Damages may include compensation for loss of property, medical expenses, mental or
physical incapability, pain and suffering, and punitive damages to punish the wrongdoer.
Most of the claims that arise under civil suits, except contractual claims, are governed
by the tort law. The intention of the tort law is to provide relief from wrongful acts of
others through monetary compensation.
A tort may include physical or mental harm, damage or loss of property, a financial loss,
and so on. Examples of harms include loss of past or future income.
The compensation by way of damages is awarded by the Court. The injured party will
seek compensation through a Court process. Liability under tort may arise due to
negligence, intentional failure to act where the individual has a duty to act or a violation
of statutes.
Thus, the three categories under tort law are negligent tort, intentional tort, and strict
liability torts. Accidents are considered as negligent torts. Theft is an example of an
intentional tort, i.e. harm done to people intentionally or willful misconduct.
Manufacture or production of defective goods is liable for damages in tort under strict
liability. Strict liability torts are concerned with the culpable state of mind of the person
doing harm.
The individual who commits the act in tort is called the ‘tortfeasor’ and would be the
defendant in the civil lawsuit involving the tortious act.
Intentional Torts: This type of tort occurs when an individual intentionally committed a
wrongful act causing harm to another individual. The key distinction with intentional
torts is the requirement of demonstrating that the defendant committed the tort on
purpose.

Battery: Making unwanted, offensive, or harmful contact with another person.

Assault: An attempt to cause harm or an action of a threatening nature.

Fraud: The act of lying or making misrepresentations to another person.

Trespass: The use of another person’s property without their permission.

Infliction of emotional distress: Intentionally frightening another individual, causing

severe emotional or mental distress

Negligence Torts: Failure to exercise a reasonable standard of care may result in a

negligent tort. For a negligent tort case to be successful, there need to be four elements
present: duty, breach of duty, causation, and damages. Negligence torts make up the
majority of tort lawsuits.

Negligence Torts

Car/bicycle/motorcycle accidents: If a driver (or rider) speeds and hits a pedestrian

causing injuries, the driver can be found negligent. Las Vegas motorcycle accidents are
common and our attorneys can help.

Slip and fall: A slip and fall claim is common when an individual falls and injures
themselves on the premises of another person’s property.

Medical malpractice: Medical malpractice occurs when a medical professional does not
provide a reasonable or competent degree of care, resulting in harm to the patient.

Strict Liability Torts: In strict liability tort cases, the focus shifts from the individual or
party committing the tort to the act or incident itself. In other words, strict liability cases
do not take into consideration intent or even negligence on the part of the rongdoer.
What matters is the action and the resulting damages that occurred.

strict Liability

Product liability: Product liability deals with cases of harm or injury caused by defective
products made available to the public by manufacturers, suppliers, or retailers.

Owning wild animals: Owners of wild animals will be held liable should any of the
animals escape and injure another individual.

Exceptionally dangerous activities: For instance, a truck carrying volatile chemicals or

hazardous materials can be liable for any harm caused from a spill or explosion.

Compensation - an action under Tort is tried in civil courts where the relief sought is
usually compensation i.e. damages or injunction. Although some Torts are of such a
nature that they can be tried in criminal courts, the objective here is to rectify the wrong-
doing and put the victim in a position he would have been in had the wrong not been
committed. Hence, in Torts, the amount of damages is calculated and awarded to the
victim if it is proved that the wrongdoing was indeed committed.

. Concept of Injury - Injuries and damages do not always go hand in hand, this concept
is further explained in Latin as damnum sine injuria and injuria sine damnum. The first
principle - damnum sine injuria means a person suffers damage but there is no injury to
his legal rights. In such cases no action under tort can be initiated.

. Burden of Proof - The plaintiff under Tort must prove the following to establish the
commission of tort -
Existence of duty of the defendant towards the plaintiff - this is usually the reasonable
duty to care
Breach of this duty
Injury caused to the plaintiff because of breach of this duty and;
Damages suffered by the plaintiff due to such a breach
However, the circumstances are such that it is not always possible to prove all the above
elements. In such situations, it is possible to prove that the defendant controlled the
situation or the instrument that caused the injury and that the injury was of such a
nature that it does not usually arise without negligence. Existence of such a situation
causes reduction in the plaintiff’s burden of proof and such a situation is caused by res-
ipsa-loquitur i.e. the thing speaks for itself. For example - if a pedestrian is injured by a
huge pot placed by the owner of an apartment on the window, it can be said that res
ipsa loquitur exists as the owner of the apartment was responsible for acting with
ordinary prudence which he failed to by placing the pot on the open window.

Joint & Several Liability in Tort - It is a well established principle in Tort law that when
the injury is caused due to the wrongdoing of two or more people, then, all such people
are liable to pay the compensation / damages under tort. The Plaintiff can also decide
to seek damages from just one defendant. This principle was also asserted in the case
of UP State Road Transport versus Smt. Rajani and Ors 2007 (2) AWC 1867

10 most important principles of tort:

[Link] OF DAMNUM SINE INJURIA AND INJURIA SINE DAMNUM

● Damnum sine injuria is a Latin maxim which means damage without legal
injury. When there is actual damage caused to the plaintiff without an
infringement of his legal right, no action lies against the defendant. In order to
make someone liable in tort, plaintiff must prove that he has sustained legal
injury. Damage without injury is not actionable in the law of torts.

Example: A sets up a rival school opposite to B’s school with a low fee structure as a
result of which students from B’s school flocked to A’s school thereby causing a huge
financial loss to A. This act of A is not actionable in law of torts since it did not lead to
the violation of any legal right of the plaintiff although he has sustained financial loss.

● Injuria sine damnum is a Latin term which means legal injury without any
damage. This implies an infringement of the legal rights of a person without
any actual loss. Loss in this sense could mean loss of health, monetary loss
etc. Since there is an infringement of the legal right of a person, the right to
sue for a remedy is available against the wrongdoer regardless of the fact
whether any actual loss is sustained or not.

In the leading case of Ashby v White the defendant, a returning officer at a voting booth
refused to allow the plaintiff, a duly qualified voter from voting. The candidate for whom
the plaintiff was voting got elected and therefore no loss was suffered by him. The court
held that although the plaintiff did not sustain any actual loss, his legal right to vote
was violated for which he was granted a remedy.

2. PRINCIPLE OF VICARIOUS LIABILITY

It is a general rule that a person is responsible for his own act of omission and
commission but in certain cases a person is liable for the act of others. This is known
as vicarious [Link] essential elements of vicarious liability are as follows:

● There must be a relationship of a certain kind.

● The wrongful act must be related to the relationship in a certain way.
● The wrongful act must be done within the course of employment.

Most common example of vicarious liability include:

1. Employers liability for the act of his servant during the course of
employment: This liability is based on the principle of “respondent superior”
whereby a person is responsible for the act of his subordinate andqui facit per
aliumfacit per se which means he who does an act through another is deemed
 in law to do it himself.

The essential elements amounting to vicarious liability of a master for the tort of his
servant are as follows:

● There should be a master-servant relation.

● The act of omission or commission should be done within the course of
employment.

Example: If A, driver of B in his course of employment negligently knocks down C while

driving a car, B will be responsible for the negligence of his driver A.

1. Principal’s liability for the act of his agent: When an agent performs an act
which is authorised by the principle, the latter becomes liable for such an act
of the agent provided the act is done within the course of employment.
1. Liability of partners for each other’s torts: When a partner in the normal
course of business of a partnership firm commits a tort, all the other partners
are equally responsible for the tort as the guilty partner.
PRINCIPLE OF VOLENTI NON FIT INJURIA

The Latin maxim volenti non fit injurialiterally means “to one who volunteers, no harm is
done”. A person who after knowing the risks and circumstances willingly and voluntarily
consents to take the risk cannot ask for compensation for the injury resulting from it. A
person who voluntarily abandons his rights cannot sue for any damage caused to him.
It is used as a complete defence in the law of torts liberating the defendant from all
kinds of [Link] elements constituting volenti non fit injuria are as follows:

● Voluntary
● Agreement (express or implied)
● Knowledge of the risk
Example: By participating in a football match, the player willingly consents to bear the
risk that may arise in the normal course of the game.

4. PRINCIPLE OF NEGLIGENCE

Negligence is said to have been committed when a person owes a duty of care towards
someone and commits a breach of duty by failing to perform it resulting in a legal
damage caused to the complainant. In other words, a tort of negligence is committed
when a person is injured due to the irresponsibility of another. The damage so caused
must be an immediate cause of the act of negligence and not a remote cause.
Essential elements of negligence are as follows:

● Duty to take care

● Beach of such a duty
● Legal damage caused to the complainant due to a breach of duty

Reasonable foreseeability is the basic principle on which the tort of negligence is based.
When a person before or at the time of committing an act can reasonably foresee that
his act is likely to cause a damage to the other person and he still continues to do it, he
is said to have committed a tort of negligence.
COMPOSITE NEGLIGENCE: When the negligent act of two or more person results in the
same damage, it is called composite negligence. The liability in such a case is joint and
several.
The burden of proof falls on the plaintiff that he has sustained legal damage due to a
breach of duty on the part of the [Link], in certain cases the plaintiff
doesn’t have to prove negligence on the defendant’s part. Such cases fall under the
principle of res ipsa loquitor which means “things speak for itself” where it is evident
from the facts of the case that there has been negligence on the side of the defendant.
Example: A doctor while performing an operation leaves a pair of scissor inside the
stomach of the patient.
PRINCIPLES OF PERSONAL SECURITY
Principles of personal security are as follows:
ASSAULT
Assault is an act which creates in the mind of a person reasonable apprehension of a
physical threat or a harm accompanied by a capacity to carry out such a threat. It is
important to note that there is an absence of physical contact in assault. Essential
elements of assault are as follows:

● Apprehension of harm
● Intention to use force
● Capacity to use force

BATTERY
Battery refers to a harmful, offensive and unlawful touching of a person against his will.
It is an application of force to the body of another in an offensive manner. Battery is an
accomplished assault.
Essential elements:

● Intention to use physical force

● Actual physical contact

FALSE IMPRISONMENT

Unlawfully restraining a person without his will by someone who does not have any
legal authority to do so amounts to false imprisonment. A person may also be made
liable for false imprisonment if he intentionally restricts another person’s freedom of
movement without any lawful justification. Arrest of a person without any legal warrant
and authority also amounts to false imprisonment.
Essential elements:

● Wilful detention
 ● Detention without consent
● Detention is unlawful

Example: A person locking another person in a room without the consent of the person
being locked.
[Link] OF NUISANCE
The word nuisance is derived from the French word ‘nurie’ which means ‘to hurt’ or ‘to
annoy’. Nuisance is an unlawful interference with a person’s enjoyment of land or some
rights over or in connection with it.
There are two types of nuisance:

1. PUBLIC NUISANCE: It is an interference with the right to enjoyment of land

of a large number of people thereby causing inconvenience and annoyance. It
is committed against the community at large and not any particular
individual. It covers a wide variety of minor crimes that harms or threatens the
safety, comfort and welfare of people at large. The extent to which the
inconvenience has been caused may differ from person to person.

Examples: Fireworks in the street, construction of a structure in the middle of a public

way obstructing the passage of people, etc.

1. PRIVATE NUISANCE: It refers to an unlawful interference with a person’s use

or enjoyment of his land causing inconvenience and annoyance to the person.
It should be noted that while public nuisance affects the community at large,
private nuisance affects an individual.

Example: Destruction of crops of an individual, a poisonous dog of a person enters into

the neighbour’s premises and causes destruction.
REMEDIES

1. Damages
2. Injunction
 3. Abatement

7. PRINCIPLE OF TRESPASS TO PROPERTY

Trespass to property refers to an unjustifiable physical encroachment of land of one
person by another. If a person directly enters upon another person’s land without
permission or remains upon the land or places any object upon the land, he is said to
have committed the tort of trespass to land.
For an act of trespass to be actionable, it is necessary that the land in which the
trespass has been committed must be in direct possession of the plaintiff. For example,
use of camera in order to view activities on the land of another. The encroachment on
plaintiff’s land should arise out of the direct consequence of the act of the defendant
and not any remote or indirect [Link], one of the most important elements of
trespass to land is the intention in the mind of the defendant not to commit trespass but
to commit the act that amounts to trespass. Trespass to land is actionable per se.
However, it should be noted that there is a difference between trespass to land and
nuisance. Trespass is an encroachment or interference on the property of a person
whereas nuisance is an interference with the right to enjoy his property.
CONTINUING TRESPASS: Continuing trespass occurs when there is a continuation of
the presence after the permission has been withdrawn or when the offending object
remains on the property of the person entitled to possession. For example continuing to
keep an object on someone’s land even after the permission has been withdrawn.
Ways in which trespass to land can occur:

● Entry upon land

● Trespass to airspace (limited)
● Trespass to the ground beneath the surface

REMEDIES
Damages: the plaintiff is entitled to full compensation of the loss incurred by him.
Injunction: order by the court directing the defendant from doing or restraining from
doing an act.
 8. PRINCIPLES OF REPUTATION AND PRIVACY

The principles of reputation and privacy are as follows:

DEFAMATION
Defamation means publishing false and defamatory statement about someone without
any lawful justification which lowers his reputation in the eyes of the right thinking
members of the society. In other words, defamation means intentional false
communication either written or spoken which harms a person’s reputation.
Defamation is of two types:
LIBEL: This is a written form of defamation which is actionable per se. Libel refers to
the statement which intends to lower the reputation of another person without any
lawful excuse. The statement must be in printed form capable of being reproduced like
cartoons, drawings, recordings, etc.
SLANDER: Slander is an oral form of defamation where false and defamatory
statements are made by words spoken or gestures which intend to lower the reputation
of a person.
Essential elements of defamation are as follows:

1. Statement must be published

2. It must be defamatory
3. It must be false
4. It must refer to the plaintiff

Defenses against an action for defamation are as follows:

1. Statements made about a public personality

2. Statements which are true
3. Fair comment
4. Consent of the aggrieved
‘9. PRINCIPLE OF STRICT LIABILITY AND ABSOLUTE LIABILITY

STRICT LIABILITY:
At times a person may be held responsible for doing a wrong even though there had
been no negligence on his part or no intention to do such wrong or even if he had taken
necessary steps to prevent such a wrong from happening. This is known as the principle
of strict liability and is based on a no fault theory. The principle of strict liability was
first laid down in the landmark case of Ryland’s v. Fletcher.
“ Anyone who in the course of “non-natural” use of his land “accumulates” thereon for
his own purposes anything likely to do mischief if it escapes is answerable for all direct
damage thereby caused. It imposes strict liability on certain areas of nuisance law.”
The essential elements of strict liability are as follows:

● There has to be some hazardous thing brought by the defendant on his land.
● Escape of the hazardous thing from the territory of the defendant.
● There must be a non-natural use of land.

Exceptions:

● Escape of the hazardous goods was because of plaintiffs own consent

● Act of god
● Act of a stranger
● Act done by any statutory authority
● Default of the plaintiff

ABSOLUTE LIABILITY:
Absolute liability is a stricter form of strict liability. It refers to the no fault theory liability
in which the wrongdoer is held absolutely liable for the act of omission or commission
without any defences which are available to the rule of strict liability. It is applicable
only to those people who are involved in hazardous or inherently dangerous activity
whereby they become absolutely liable to full compensation for the harm caused to
anyone resulting from the operation of such hazardous activity. The rule of absolute
liability was first laid down in M.C Mehta v. Union of India (Oleum gas case).
10. POSITION OF MINORS IN LAW OF TORT
In India, a minor is a person who is below the age of 18 years. They can sue just like
adults but through their parents and can also be sued like adults if they are old enough
to form an intention to commit a tort.
CAPACITY TO SUE
A minor can sue for any wrong done to him through his ‘litigation friend’ who usually is
his father. A minor may even sue his parents for a negligent act. A child who sustained
injury while in the mother’s womb can also sue the guilty after coming to the world.
CAPACITY TO BE SUED
A minor is generally not capable of being sued if he commits a tort since he is incapable
of reimbursing damages, but in most of the cases he can be sued just like an adult.
Also, a minor can be sued for contributory negligence.
PARENTS LIABILITY FOR A MINOR'S TORT
Parents could be held liable for the tort committed by their children if they owed a direct
duty of care towards their child while he committed the tort. They are responsible for
their children’s action the same way as the employers are responsible for the harmful
action of their employees.

General defenses under law of

torts
Meaning of General Defences
When a plaintiff brings an action against the defendant for a tort committed by him, he
will be held liable for it, if there exists all the essential ingredients which are required for
that wrong. But there are some defences available to him using which he can absolve
himself from the liability arising out of the wrong committed. These are known as
‘General defences’ in the law of tort.
The defences available are given as follows:
 ● Volenti non fit injuria or the defense of ‘Consent’
● The wrongdoer is the plaintiff
● Inevitable accident
● Act of god
● Private defense
● Mistake
● Necessity
● Statutory authority

Volenti non fit injuria

In case, a plaintiff voluntarily suffers some harm, he has no remedy for that under the
law of tort and he is not allowed to complain about the same. The reason behind this
defence is that no one can enforce a right that he has voluntarily abandoned or waived.
Consent to suffer harm can be express or implied.
Some examples of the defence are:

● When you yourself call somebody to your house you cannot sue your guests
for trespass;
● If you have agreed to a surgical operation then you cannot sue the surgeon
for it; and
● If you agree to the publication of something you were aware of, then you
cannot sue him for defamation.
● A player in the games is deemed to be ready to suffer any harm in the
course of the game.
● A spectator in the game of cricket will not be allowed to claim
compensation for any damages suffered.

or the defence to be available the act should not go beyond the limit of what has been
consented.
In Hallv. Brooklands Auto Racing Clu, the plaintiff was a spectator of a car racing event
and the track on which the race was going on belonged to the defendant. During the
race, two cars collided and out of which one was thrown among the people who were
watching the race. The plaintiff was injured. The court held that the plaintiff knowingly
undertook the risk of watching the race. It is a type of injury which could be foreseen by
anyone watching the event. The defendant was not liable in this case.
In Padmavati v. Dugganaika, the driver of the jeep took the jeep to fill petrol in it. Two
strangers took a lift in the jeep. The jeep got toppled due to some problem in the right
wheel. The two strangers who took lift were thrown out of the jeep and they suffered
some injuries leading to the death of one person.
The conclusions which came out of this case are:

● The master of the driver could not be made liable as it was a case of a sheer
accident and the strangers had voluntarily got into the vehicle.
● The principle of Volenti non fit injuria was not applicable here.

In Wooldrige v. Sumner, a plaintiff was taking some pictures standing at the boundary
of the arena. The defendant’s horse galloped at the plaintiff due to which he got
frightened and fell into the horse’s course and was seriously injured. The defendants
were not liable in this case since they had taken due care and precautions.

The consent must be free

● For this defence to be available it is important to show that the consent of
the plaintiff was freely given.
● If the consent was obtained under any compulsion or by fraud, then it is not
a good defence.
● The consent must be given for an act done by the defendant.
● For example, if you invite someone to your house for dinner and he enters
your bedroom without permission then he will be liable for trespass.

In the case of Lakshmi Rajan v. Malar Hospital, a 40 year old married woman noticed a
lump in her breast but this pain does not affect her uterus. After the operation, she saw
that her uterus has been removed without any justification. The hospital authorities
were liable for this act. The patient’s consent was taken for the operation not for
removing the uterus.

● If a person is not in a condition to give consent then his/her guardian’s

consent is sufficient.

Consent obtained by fraud

● Consent obtained by fraud is not real consent and does not serve as a good
defence.

In Hegarty v. Shine, it was held that mere concealment of facts is not considered to be a
fraud so as to vitiate consent. Here, the plaintiff’s paramour had infected her with some
venereal disease and she brought an action for assault against him. The action failed
on the grounds that mere disclosure of facts does not amount to fraud based on the
principle ex turpi causa non oritur actio i.e. no action arises from an immoral cause.

● In some of the criminal cases, mere submission does not imply consent if
the same has been taken by fraud which induced mistake in the victim’s mind
so as to the real nature of the act.
● If the mistake induced by fraud does not make any false impression
regarding the real nature of the act then it cannot be considered as an element
vitiating consent.

In R. v. Wiliams, a music teacher was held guilty of raping a 16 years old girl under the
pretence that the same was done to improve her throat and enhancing her voice. Here,
the girl misunderstood the very nature of the act done with her and she consented to the
act considering it a surgical operation to improve her voice.
In R. v. Clarence, the husband was not liable for an offence when intercourse with her
wife infected her with a venereal disease. The husband, in this case, failed to inform her
wife about the same. Here, the wife was fully aware of the nature of that particular act
and it is just the consequences she was unaware of.
Consent obtained under compulsion
● There is no consent when someone consents to an act without free will or
under some compulsion.
● It is also applicable in the cases where the person giving consent does not
have full freedom to decide.
● This situation generally arises in a master-servant relationship where the
servant is compelled to do everything that his master asks him to do.
● Thus, there is no applicability of this maxim volenti non fit injuria, when a
servant is compelled to do some work without his own will.
● But, if he himself does something without any compulsion then he can be
met with this defence of consent.

Negligence of the defendant

In order to avail this defence it is necessary that the defendant should not be negligent.
If the plaintiff consents to some risk then it is presumed that the defendant will not be
liable.
For example, when someone consents to a surgical operation and the same becomes
unsuccessful then the plaintiff has no right to file a suit but if the same becomes
unsuccessful due to the surgeon’s negligence then in such cases he will be entitled to
claim compensation.
In Slater v. Clay Cross Co. Ltd., the plaintiff suffered injuries due to the negligent
behaviour of the defendant’s servant while she was walking along a tunnel which was
owned by the defendants. The company knew that the tunnel is used by the public and
had instructed its drivers to give horns and drive slowly whenever they enter a tunnel.
But the driver failed to do so. It was held that the defendants are liable for the accident.

Plaintiff the wrongdoer

There is a maxim “Ex turpi causa non oritur actio” which says that “from an immoral
cause, no action arises”.
If the basis of the action by the plaintiff is an unlawful contract then he will not succeed
in his actions and he cannot recover damages.
If a defendant asserts that the claimant himself is the wrongdoer and is not entitled to
the damages, then it does not mean that the court will declare him free from the liability
but he will not be liable under this head.
In the case of Bird v. Holbrook, the plaintiff was entitled to recover damages suffered by
him due to the spring-guns set by him in his garden without any notice for the same.
In Pitts v. Hunt, there was a rider who was 18 years of age. He encouraged his friend
who was 16 years old to drive fast under drunken conditions. But their motorcycle met
with an accident, the driver died on the spot. The pillion rider suffered serious injuries
and filed a suit for claiming compensation from the relatives of the deceased person.
This plea was rejected as he himself was the wrongdoer in this case.

Inevitable accident
Accident means an unexpected injury and if the same accident could not have been
stopped or avoided in spite of taking all due care and precautions on the part of the
defendant, then we call it an inevitable accident. It serves as a good defence as the
defendant could show that the injury could not be stopped even after taking all the
precautions and there was no intent to harm the plaintiff.
In Stanley v. Powell, the defendant and the plaintiff went to a pheasant shooting. The
defendant fired at a pheasant but the bullet after getting reflected by an oak tree hit the
plaintiff and he suffered serious injuries. The incident was considered an inevitable
accident and the defendant was not liable in this case.
In Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha, the premises which
belonged to the plaintiff were let out to the defendant. The tenant i.e. the defendant
requested the landlord to repair the electric wirings of the portion which were defective,
but the landlord did not take it seriously and failed to do so. Due to a short circuit, an
accidental fire spread in the house. No negligence was there from the tenant’s side. In an
action by the landlord to claim compensation for the same, it was held that this was the
case of an inevitable accident and the tenant is not liable.

Act of God
Act of God serves as a good defence under the law of torts. It is also recognized as a
valid defence in the rule of ‘Strict Liability’ in the case of Rylands v. Fletcher.
The defence of Act of God and Inevitable accident might look the same but they are
different. Act of God is a kind of inevitable accident in which the natural forces play
their role and causes damage. For example, heavy rainfall, storms, tides, etc.
Essentials required for this defence are:

● Natural forces’ working should be there.

● There must be an extraordinary occurrence and not the one which could be
anticipated and guarded against reasonably.

Working of natural forces

In Ramalinga Nadar v. Narayan Reddiar, the unruly mob robbed all the goods
transported in the defendant’s lorry. It cannot be considered to be an Act of God and the
defendant, as a common carrier, will be compensated for all the loss suffered by him.
In Nichols v. Marsland, the defendant created an artificial lake on his land by collecting
water from natural streams. Once there was an extraordinary rainfall, heaviest in human
memory. The embankments of the lake got destroyed and washed away all the four
bridges belonging to the plaintiff. The court held that the defendants were not liable as
the same was due to the Act of God.
Occurrence must be extraordinary
Some extraordinary occurrence of natural forces is required to plead the defence under
the law of torts.
In Kallu Lal v. Hemchand, the wall of a building collapsed due to normal rainfall of
about 2.66 inches. The incident resulted in the death of the respondent’s children. The
court held that the defence of Act of God cannot be pleaded by the appellants in this
case as that much rainfall was normal and something extraordinary is required to plead
this defence. The appellant was held liable.

Private defense
The law has given permission to protect one’s life and property and for that, it has
allowed the use of reasonable force to protect himself and his property.

● The use of force is justified only for the purpose of self-defence.

● There should be an imminent threat to a person’s life or property.
For example, A would not be justified in using force against B just because he believes
that some day he will be attacked by B.

● The force used must be reasonable and to repel an imminent danger.

For example, if A tried to commit a robbery in the house of B and B just draw his sword
and chopped his head, then this act of A would not be justified and the defence of
private defence cannot be pleaded.

● For the protection of property also, the law has only allowed taking such
measures which are necessary to prevent the danger.

For example, fixing of broken glass pieces on a wall, keeping a fierce dog, etc. is all
justified in the eyes of law.
In Bird v. Holbrook, the defendant fixed up spring guns in his garden without displaying
any notice regarding the same and the plaintiff who was a trespasser suffered injuries
due to its automatic discharge. The court held that this act of the defendant is not
justified and the plaintiff is entitled to get compensation for the injuries suffered by him.

Mistake
The mistake is of two types:

● Mistake of law
● Mistake of fact

In both conditions, no defence is available to the defendant.

When a defendant acts under a mistaken belief in some situations then he may use the
defence of mistake to avoid his liability under the law of torts.
In Morrison v. Ritchie & Co, the defendant by mistake published a statement that the
plaintiff had given birth to twins in good faith. The reality of the matter was that the
plaintiff got married just two months before. The defendant was held liable for the
offence of defamation and the element of good faith is immaterial in such cases.
In Consolidated Company v. Curtis[, an auctioneer auctioned some goods of his
customer, believing that the goods belonged to him. But then the true owner filed a suit
against the auctioneer for the tort of conversion. The court held auctioneer liable and
mentioned that the mistake of fact is not a defence that can be pleaded here.

Necessity
If an act is done to prevent greater harm, even though the act was done intentionally, is
not actionable and serves as a good defence.
It should be distinguished with private defence and an inevitable accident.
The following points should be considered:

● In necessity, the infliction of harm is upon an innocent whereas in case of

private defence the plaintiff is himself a wrongdoer.
● In necessity, the harm is done intentionally whereas in case of an inevitable
accident the harm is caused in spite of making all the efforts to avoid it.

For example, performing an operation of an unconscious patient just to save his life is
justified.
In Leigh v. Gladstone, it was held that the forcible feeding of a person who was hunger-
striking in a prison served as a good defence for the tort of battery.
In Cope v. Sharpe, the defendant entered the plaintiff’s premises to stop the spread of
fire in the adjoining land where the defendant’s master had the shooting rights. Since
the defendant’s act was to prevent greater harm so he was held not liable for trespass.

Statutory authority
If an act is authorized by any act or statute, then it is not actionable even if it would
constitute a tort otherwise. It is a complete defence and the injured party has no remedy
except for claiming compensation as may have been provided by the statute.
Immunity under statutory authority is not given only for the harm which is obvious but
also for the harm which is incidental.
In Vaughan v. Taff Valde Rail Co., sparks from an engine of the respondent’s railway
company were authorized to run the railway, set fire to the appellant’s woods on the
adjoining land. It was held that since they did not do anything which was prohibited by
the statute and took due care and precaution, they were not liable.
In Hammer Smith Rail Co. v. Brand, the value of the property of the plaintiff depreciated
due to the loud noise and vibrations produced from the running trains on the railway line
which was constructed under a statutory provision. The court held that nothing can be
claimed for the damage suffered as it was done as per the statutory provisions and if
something is authorized by any statute or legislature then it serves as a complete
defence. The defendant was held not liable in the case.
Absolute and conditional authority
The authority given by a statute can be of two types:

● Absolute
● Conditional

In the case of Absolute authority, there is no liability if the nuisance or some other harm
necessarily results but when the authority is conditional it means that the same is
possible without nuisance or any other harm.
In the case of Metropolitan Asylum District v. Hil , the hospital authorities i.e. the
appellants were granted permission to set up a smallpox hospital. But the hospital was
created in a residential area which was not safe for the residents as the disease can
spread to that area. Considering it a nuisance an injunction was issued against the
hospital. The authority, in this case, was conditional

Joint liability
What is Joint Liability? Joint liability means that there is more than one defendant for
the plaintiff's injury or damage. In joint tort, each defendant is fully responsible for the
entire number of damages. For example, a doctor and nurse being jointly liable for a
patient's wrong medical treatment.

Joint tortfeasor
Introduction
When two or more persons unite to cause damage to another person, then they will be
liable as joint tortfeasors. All those who actively participate in the civil wrong
commission are joint tortfeasors. Based on the percentage of damage caused by his
negligent act, each joint tortfeasor is responsible for paying a portion of the
compensation granted to the complainant. According to the principle of contribution, the
defendant who pays more than his share of the damages, or who pays more than he is
at fault, may bring an action to recover from the other defendant.

Liability of Independent Tortfeasor

They are severely liable for the same damage due to an independent course of action. In
Thompson v. London County Council, it was observed that “the damage is one but the
cause of action which led to the damage are two”. Such tortfeasors are, therefore,
severely liable for the same damage, not jointly liable for the same tort.
In the Koursk case, Koursk and Clan Chisholm collided with one another. As a result, the
ship Clan Chisholm collided and sank another ship Itria. The owners of the damaged
ship Itria recovered the damages from Clan Chisholm for the loss suffered but were not
fully satisfied as the liability of the owners of Clan Chisholm was limited to the lesser
amount. Subsequently, owners of Itria filed a suit against the Koursk also. It was held
that Koursk and Clan Chisholm were not joint tortfeasors but only independent
tortfeasors. The liability of the Independent tort was held to be several and not joint and
therefore, there could be as many causes of action as the number of tortfeasors.

Liability of Several Concurrent Tortfeasors

When the same injury is caused to another person by two or more people as a result of
their separate tortious acts, this results in several concurrent tortfeasors. Even where
successive injuries are caused, the parties remain multiple, concurrent tortfeasors as
long as the negligence of each is both a factual and proximate cause of each injury.
If a complainant suffers multiple accidents, several concurrent tortfeasors may also be
the individual tortfeasors from each accident. For example, in a motor vehicle accident
in Hutchings v Dow[2], the complainant suffered damage. He was further injured in an
assault about 18 months later. It was determined that the complainant suffered from
severe and ongoing depression resulting from both the motor vehicle accident and the
assault. The court stated that “several tortfeasors whose acts combined to produce the
same damage, i.e. depression,” were the defendants from the motor vehicle accident
and the assault perpetrator.

When two or more persons join together for common action, then all the persons are
jointly and severally liable for any tort committed in the course of such acti0n.

When does the liability of joint tortfeasors

arise?
Liability of joint tortfeasors arises in three circumstances and they are:
Agency
When one person is authorized by another person to do work on his behalf then any tort
committed by that person, the agent then principal who is authorizing the work will
jointly and independently be held liable. When a tort is committed by an agency then
both principal and agent are considered as joint tortfeasors. When any partner commits
tort during the course of the business, then all other partners are also considered as
joint tortfeasors.
Vicarious Liability
When a person is liable for the tort committed by another person under special
circumstances, the liability is joint and both are joint-tortfeasors. Thus, when a servant
commits a tort in the course of employment, the master can be made liable along with
the servant as a joint-tortfeasors.
Joint Action
Where two or more persons join together for common action then all the persons are
jointly and severally liable for the tort committed in the course of action.

Tort feasors Defenses

An individual or entity accused of committing a civil mistake basically has three options
for defending their actions. These tortfeasor defenses include:
Consent and Waiver
A tortfeasor (defendant) may defend his position in a civil lawsuit if the accuser
(defendant) has been explicitly warned of the risk or danger of engaging in the harmful
activity. This defense is referred to as the legal maxim volenti non fit injuries, which
means “no injury is done to a consenting person.” This tortfeasor defense usually relies
on signed waivers of liability
Comparative Negligence
In comparative negligence, tortfeasors may try to defend themselves by claiming that
the complainant contributed to his own damage by committing acts of recklessness or
negligence. A similar concept called “contributory negligence” often results in the court
assigning a percentage of fault to each party, which ultimately dictates the percentage
of financial responsibility for which each party will be held accountable.
Illegality
Where at the time of the injury, the complainant committed an illegal act for which he
was seeking compensation, the defendant’s liability may be reduced, or entirely
eliminated.

State liability for torts;

The concept of tortious liability of the State means that the state is liable for the acts of
its servants. State has to act through human agencies in carrying out various functions.
So the important question which arises is whether the State can be held vicariously
liable for the acts of its employees.

State liability refers to the liability of the state arising from the acts of omission/
commission committed by its servants. It has been governed by written or unwritten
laws and is not a static concept. The State’s liability for the tortious acts of its servants,
known as the tortious liability of the State, makes it liable, voluntarily or involuntarily, for
acts of omission and commission, and puts it before the Court of Law in a claim for
unliquidated damages to such acts. This liability is also a branch of the Law of Torts.
Law of Torts like various other laws has traveled through the British to this country and
is now varied because it is regulated by local laws and constitutional provisions.

English law – In England, the Crown’s outright insusceptibility was acknowledged under
precedent-based law. The administration depended on the maxim “the King can’t be
blamed under any circumstance”. In 1863, in Tobin v. R., the court observed: “if the
Crown were at risk in tort, the rule might have appeared to be insignificant”. In 1947 the
Crown Proceeding Act was enacted which put the Government in an indistinguishable
position from a private person’s view.

Indian Law – The maxim ‘the king can’t be blamed under any circumstance’ was never
acknowledged in India. The government’s absolute insusceptibility was not understood
in the Indian legal system before the constitution’s beginning and in numerous cases,
the government was subjected to its employees’ convoluted actions. According to Article
294(4) of the Constitution, the liability of the Government of the Union or a Government
of the State can arise ‘from some contract or other.’ Article 12 of the Indian Constitution
defines the term ‘state’. Under Article 300 (1), the degree of such liability is settled. It
states the Union of India or State Government’s liability to be the same as that of
Dominion of India and the Provision before the Constitution commenced.

The vicarious liability of the State (for torts) shall be borne by its servants in the exercise
of the duties of the State. If the acts performed were necessary to protect life or
property, the State would not be held liable. Acts such as judicial or quasi-judicial
decisions made in good faith also invite no liability whatsoever. There are specific
statutory provisions that are binding on the administrative authorities. However, such
protection would not scale up malicious acts. The burden of proving a malicious act
would lie on the person who is assaulting the administrative action. The principles of
tort law would apply in determining what is a tort and the public servant would also
have access to all of the defenses available to the respondent in a tort lawsuit.

Respondeat Superior (Let the principal be liable)

Respondent Superior (Let the master answer) was brought to the premise of the
subordinates’ limited economic capacity, and the irresponsible behaviour of superiors
such as masters or employers was controlled. This doctrine is based on public policy
since it aims to assign the risks usually associated with it to the business. When
applying this doctrine, an employer and the master are liable for the negligent
commissions or omissions of an employee and the servant which occur during
employment. Nevertheless, a relationship between the superior and the subordinate
should be established for the liability to fall upon the superiors.
Actions performed by the subordinates during their jobs or agency under an employer or
a master’s explicit or implied authority, respectively. There are two requirements of the
doctrine:

● A true master-servant and employer-employee relationship.

● The tortious act of a servant and an employee must be one within the scope
of his employment. The ‘scope of employment’ refers to the act performed
under the express or implied authority of the superiors.

Qui-Facit per Alium Facit per se (He who acts

through another does it himself).

Qui facit per alium facit per se is a fundamental statutory maxim of agency law. It is a
maxim frequently stated when discussing the employer’s liability for the employee’s
actions as regards vicarious liability. According to this maxim, by employing servants
the master is obliged to perform the duties, he is responsible for their actions in the
same way as he is responsible for his actions. Indirectly, in the role portrayed by the
agent, the concept is in practice or present such that the role performed is seen as the
work of the agent himself. Anything that a principal can do for itself can be done
through an agent. The exception to that maxim would be personal acts of nature.
A public servant might be incompetent in the performance of his duty and obtaining
compensation from him is difficult. The compensation is more important to the
aggrieved person than punishment. The State must also be vicariously held responsible
for the wrongdoings of its servants. In Bhim Singh v. the State of J&K, where the
petitioner, a member of the Legislative Assembly, was arrested while he was travelling to
Srinagar to attend the Legislative Assembly in gross violation of his constitutional rights
under Article 21 and Article 22(2) of the Constitution, the court granted the petitioner
monetary compensation of Rs. 50,000 by way of exemplary costs. In Lucknow
Development Authority v. M.K. Gupta, the Supreme Court observed that when the public
servant causes injustice and pain to the common man mala fide, and capricious acts
while discharging official duties, it makes the State liable to pay damages from public
funds to the aggrieved individual. The State is constitutionally obliged to recover the
reimbursement sum from the public servant in question.