Law of Torts

Munish Aggarwal
[Link] (Hons.), FCA, DISA
Registered Valuer- S&FA
Alumni: SRCC (DU), Deloitte, ONGC
Faculty: IOV RVF, ICAI RVO
Date: Feb 2020
Introduction
Meaning

• Tort is an wrongful act or infringement of a right (other than under contract) leading to legal
liability.

• If we say in general, every person in our country is entitled to some legal right. Law imposes a
duty on every individual to respect the legal right bestowed on others and any person
interfering with someone else’s enjoyment of their legal rights said to have committed a tort.

• The underlying principle of the law of tort is that every person has certain interests which
are protected by law.
Word ‘Tort’ Origin

• The word “Tort” is derived from Latin word “Tortum” which which means “to twist”. It
corresponds to English word “wrong” and to Roman word “direct”.

• In general, it means conduct that adversely affects the legal rights of others.

• For a healthy society it is necessary that it should be free from anti-social elements and that
an individual should have freedom to exercise his rights without being restricted by others.

• Further, if there is a transgression of any right, there must be a way to compensate or to

restore the right. This is essentially what the maxim, “Ubi just ibi remedium” implies –
wherever there is a right, there is a remedy.
Nature of Tort

• It was introduced into English Law by Norman Jurists.

• It now means a breach of some duty independent of contract between citizens, giving rise to
a civil cause of action and for which compensation (unliquidated damage) is recoverable.

• The person committing a tort or wrong is called a tort-feasor or wrong-doer and his misdoing
is a tortuous act.

• In India, the law of tort is uncodified and is still in the process of development.
Tort v/s Crime

• Tort is a civil wrong and crime is a criminal prsecution

• Tort is private wrong and crime is public wrong

• Tort-feasor or wrong-doer has to pay compensation for his tortuous act whereas in crime,
criminal is subject to punishment

• In Tort, the person who files the case is known as Plaintiff whereas in case of crime, it is
prosecution.
Tort v/s Contract

• In tort, damages are unliquidated damages whereas in contract, damages are liquidated

• In tort, there is no privity of contract

• In tort, duty is imposed by the law, whereas in contract, duty is imposed by contract

• In India, the law of tort is uncodified and is still in the process of development.

Note: There can be situations where an event leads to both breach of contract and tort also.
Essentials of Tort

Wrongful Act
Legal Remedy
Legal damages to the plaintiff
Different types of torts
Types of Torts

• Torts are of different types listed below:

1. The tort of trespass (must show that defendant was on his property and did not have
permission to be there from the plaintiff)
2. The tort of assault (a threat of violence or injury to a person)
3. The tort of battery (that the defendant intended to cause harmful or offensive contact
with the plaintiff without his permission or realized that it was likely to occur)
4. The tort of negligence (Careless conduct causing injury)
5. The tort of defamation (Relates to interference with person’s reputation, either written
or spoken words, false statement about another person, form of libel or slander)
6. The tort of false imprisonment (unlawful restraint of another person)
The tort of trespass

• 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 cause.
• Also, 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.
The tort of trespass

• 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`
The tort of 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
The tort of 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
The tort 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
• Breach 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.
• 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.
The tort of 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.
The tort of defamation

• 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
• Defences 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
The tort of 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.
General Principles of Tort
Principles of Tort

• Following are the important principles of tort:

– PRINCIPLE OF DAMNUM SINE INJURIA AND INJURIA SINE DAMNUM

– PRINCIPLE OF VICARIOUS LIABILITY

– PRINCIPLE OF VOLENTI NON FIT INJURIA

– PRINCIPLE OF STRICT LIABILITY AND ABSOLUTE LIABILITY

– POSITION OF MINORS IN LAW OF TORT

PRINCIPLE OF DAMNUM SINE INJURIAS AND INJURIA SINE DAMNUM

• Damnum sine injuriais a Latin maxim which means damage without legal injury. When there
is an 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.
PRINCIPLE OF DAMNUM SINE INJURIAS AND INJURIA SINE DAMNUM

• 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 legal
right of a person, right to sue for a remedy is available against the wrongdoer regardless of
the fact whether any actual loss is sustained or not.

Example: Mr. A (the defendant), a returning officer at a voting booth refused to allow Mr. B
(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, but his legal right to vote was violated for which
he was granted a remedy.
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 liability.
• This liability is based on the principle of “respondent superior” whereby a person is
responsible for the act of his subordinate and qui facit per alium facit per se which means he
who does an act through another is deemed in law to do it himself on which contract of
agency is based.
• The 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.

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.
More examples:
1. Employers liability for the act of his servant during the course of employment
2. Principal’s liability for the act of his agent
3. Liability of partners for each other’s torts
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
liability.
• Essential 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.
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 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
PRINCIPLE OF STRICT LIABILITY AND ABSOLUTE LIABILITY

• 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.
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 MINORS 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.
Multiple Choice Questions
(MCQs)
Multiple Choice Questions (MCQs)

• Ques. 1 - What kind of contact must the plaintiff prove as an element of the tort of battery?
A) Violent contact
B) Contact causing some injury, however slight
C) Any contact without the plaintiff’s consent
D) Harmful or offensive contact

• Ques. 2 - Which of the following must the plaintiff prove as an element of the tort of
battery?
A) That the defendant intended to injure the plaintiff
B) That the defendant intended to harm or offend the plaintiff
C) That the defendant intended to cause harmful or offensive contact with the plaintiff
or realized that it was likely to occur
D) That the defendant intended the action that caused harmful or offensive contact with
the plaintiff
Multiple Choice Questions (MCQs)

• Ques. 3 - Which of the following could not constitute battery if done with the requisite
intent?
A) Startling the plaintiff so that she falls down stairs
B) Shouting in the plaintiff’s ear
C) Deliberately blowing smoke in the plaintiff’s face
D) Grabbing the plaintiff’s camera, which is hanging around her neck

• Ques. 4 - Andrew throws a baseball towards Barry, with whom he is playing pitch and catch.
Andrew’s aim is bad and the ball hits Cassandra, who is walking nearby.
A) Andrew has committed battery against Cassandra because his intention to hit Barry with
the ball is transferred to Cassandra
B) Andrew has not committed battery against Cassandra because he did not intend to
harm her
C) Andrew has committed battery against Cassandra because he intended to throw the
ball, which hit her
D) Andrew has not committed battery against Cassandra because the contact he
intended to make with Barry was not tortious because Barry consented to it
Multiple Choice Questions (MCQs)

• Ques. 5 - In order to establish the tort of assault, what type of apprehension must the
plaintiff prove that he or she had as a result of the defendant’s conduct?
A) Well-founded apprehension of imminent contact by the defendant that would
amount to battery
B) Well-founded apprehension of future contact by the defendant that would amount to
battery
C) Acute personal apprehension of imminent contact by the defendant that would
amount to battery
D) Acute personal apprehension of future contact by the defendant that would amount to
battery

• Ques. 6 - The tort of Battery is -

A) The threat of imminent physical harm
B) The act of coming onto another person's property without consent
C) Non-consensual physical contact that violates an individual's bodily security
D) A careless act or omission that causes harm to another
Multiple Choice Questions (MCQs)

• Ques. 7 - A tavern owner allows a patron to drink excessively. The patron then drives home,
causing an automobile accident that results in serious injuries to passengers of the other
car. The tavern owner may be liable for:
A) The tort of negligence
B) The tort of battery
C) The tort of trespass
D) Breach of contract

• Ques. 8 - The two broad categories of torts are:

A) Assault and battery
B) Assault and negligence
C) Intentional and unintentional
D) Aggravated assault and battery
Multiple Choice Questions (MCQs)

• Ques. 9 - When a store detective unlawfully restrains a shopper, he/she has committed:
A) The criminal offence of unlawful detainment
B) The tort of negligence
C) The tort of battery
D) The tort of false imprisonment

• Ques. 10 - Nuisance is:

A) Fraudulent misrepresentation that induces another to enter into a contract
B) Presenting another's good and services as one's own
C) Any activity on an occupier's property that unreasonably interferes with the
neighbour's rights to the enjoyment of his/her own property
D) Unlawful detention or physical restraint or the perception thereof
Multiple Choice Questions (MCQs)

• Ques. 11 - To which of the following situations does absolute privilege apply?

A) A statement made in the federal Parliament
B) A statement made in a press conference
C) A political cartoon in a newspaper
D) A complaint about a lawyer made to the Law Society

• Ques. 12 - Tort law refers to:

A) A wrong committed by one person against another
B) Criminal activities
C) Many different criminal offences
D) All of the above
Multiple Choice Questions (MCQs)

• Ques. 13 - Assault means -

A)Unlawful touching or striking of another person
B)Threatening and touching which causes injury to a person
C) A threat of violence or injury to a person
D) The application of force causing injury

• Ques. 14 - Battery means -

A) Violent conduct against another person
B) Threatening to touch or strike another person
C) Unintentional touching or striking of another person
D) The unlawful touching or striking of another person
Multiple Choice Questions (MCQs)

• Ques. 15 - Self Defence -

A) Is a complete defence to a claim
B) Requires that there is a genuine fear of injury or harm
C) Requires the use of reasonable force only and the force used be proven to be necessary
D) All of the above

• Ques. 16 - False Imprisonment -

A) Refers to the unlawful restraint of another person
B) Refers to restraint of an individual in the process of committing a crime
C) Only applies when an individual is in police custody
D) Refers to confinement of an individual by a police office
Multiple Choice Questions (MCQs)

• Ques. 17 – Defamation -
A) Relates to the interference with a person's reputation
B) May take the form of libel or slander
C) May involve making false statements, either written or spoken, about another person
D) All of the above

• Ques. 18 - The differences between the defences of qualified privilege and absolute
privilege include which of the following:
A) Qualified privilege will only protect against defamation where there was no malice or
intent to injure
B) Absolute privilege protects against defamation in venues where having people speak
freely on all matters is in the public interest
C) Absolute privilege applies to statements made in court, in parliament, and at coroners'
inquests
D) All of the above
Multiple Choice Questions (MCQs)

• Ques. 19 - "Publication" of a libelous statement may be accomplished by -

A) Printing it in a newspaper
B) Disseminating it on the Internet
C) Broadcasting it on the radio or television
D) All of the above statements

• Ques. 20 - To prove one has suffered from intentional interference with one's reputation
and therefore succeed in a defamation lawsuit, which of the following is incorrect -
A) The plaintiff must not be deceased
B) The plaintiff may be deceased
C) The plaintiff may be either a human being or a corporation
D) The statement about the plaintiff must be false
Multiple Choice Questions (MCQs)

• Ques. 21 - A patron at a nightclub has too much to drink and becomes obnoxious to other
patrons as well as to his server when she refuses to bring him another beer. The proprietor
of the nightclub then asks him to leave immediately. Which of the following statements is
false -
A) The patron becomes a trespasser if he refuses to leave the nightclub
B) The proprietor has the right to use reasonable force to escort the patron off the
property if he refuses to leave
C) The patron becomes a trespasser, even if he leaves when asked
D) It is useless to call the police to a privately owned nightclub
E) Option C) and D)

• Ques. 22 - In order for a lawsuit in trespass to land to succeed, the plaintiff -

A) Must be reasonable and understanding
B) Must have evidence of significant damage to land
C) Must show the defendant was on his or her property
D) Must show the defendant did not have permission to be there from the plaintiff
E) Option C) and D)
Multiple Choice Questions (MCQs)

• Ques. 23 - Examples of interference with another's enjoyment of his or her property which
may constitute the tort of nuisance include -
A) The chronic flow of cigarette smoke into an apartment's air conditioning system
B) The sudden flow of radioactive material into the air following a nuclear plant accident
C) The chronic flow of cattle feces into a city's water system because a rancher has not
repaired a broken dyke
D) All of the above

• Ques. 24 - Where an individual's rights to enjoy his or her property are seriously affected by
pollution from a pulp and paper company, the most likely outcome of a nuisance lawsuit
would be -
A) Damages
B) An injunction to close down the pulp mill
C) Both damages and an injunction
D) An injunction and specific performance
Multiple Choice Questions (MCQs)

• Ques. 25 - Negligence may be defined as -

A) Careless conduct causing injury
B) Intentional conduct causing injury
C) Careless conduct without any evidence of injury
D) An accident resulting in no harm to anyone

• Ques. 26 - The freedom of one individual must be balanced by the right of another -
A) Not to be injured by the intentional act of the first individual
B) Not to be injured by the deliberate act of the first individual
C) Not to be injured by the careless act of the first individual
D) All of the above
Multiple Choice Questions (MCQs)

• Ques. 27 - Which of the following is correct with respect to the standard of care expected -
A) If someone is injured by the actions of another, the person who caused the is always
responsible for it
B) If someone is injured by the actions of another, the person who caused the injury is never
responsible for it
C) One truck driver will be held to the same standard of care as any other truck driver,
regardless of circumstances
D) The standard of care varies according to each situation and the type of activity that
caused the injury

• Ques. 28 - Which of the following exceeds expectations with respect to the conduct of a
"reasonable person“?
A) A person who is careful in his or her conduct
B) A person of normal intelligence
C) A person exhibiting the highest skill attainable
D) A person who does everything a careful person would do in carrying out his or her
activities
Multiple Choice Questions (MCQs)

• Ques. 29 - Among the types of monetary compensation for torts available to plaintiffs is
one which, although the amount of compensation may be small, nevertheless recognizes
there has been a violation of the plaintiff's rights. These damages are known as -
A) General damages
B) Special damages
C) Nominal damages
D) Exemplary damages

• Ques. 30 - Business torts involving unfair practices or statements by unethical business

persons -
A) Are now subject to special statutes designed to deal specifically with improper acts in
question
B) Are not subject to legislation due to the evolving nature of these claims
C) Are not truly tort claims
D) Do not permit recovery of damages
Multiple Choice Questions (MCQs)

• Ques. 31 – Foreseeability -
A) Refers to the ability to foresee the extent of damage which is caused by a negligent act
B) Refers to the ability to foresee the person who will be injured by a negligent act
C) Is the test applied to determine whether a person would anticipate the consequences
of their actions
D) Is based upon the concept of a person with above average intelligence and the ability to
predict injury

• Ques. 32 - Contributory Negligence -

A) Is a defence which is used to attribute some responsibility for injury to the injured
person as a result of the injured person's negligent conduct
B) Is often used to provide a complete defence to a negligence action
C) May be used by an injured person to attribute liability for injury to another party
D) Occurs when a person voluntarily assumes the risk of injury
Multiple Choice Questions (MCQs)

• Ques. 33 - Voluntary assumption of risk -

A) Means that a defendant will not be responsible for injuries they sustain
B) Means that a defendant will be completely responsible for any losses which may be
suffered by another person
C) Means that a person has voluntarily assumed the risk that they may be injured
D) All of the above

• Ques. 34 - At Common Law a trespasser -

A) Is owed the highest duty of care
B) Is generally considered to assume all risk of injury when entering on lands owned by
another
C) Is not owed a duty of care by the landowner
D) Must be warned of all dangers on a property
Multiple Choice Questions (MCQs)

• Ques. 35 – Manufacturers -
A) May be responsible for injuries caused in the normal use of their products by
consumers
B) Are not responsible to consumers who are injured by using their products
C) Are only responsible to a retailer for injuries resulting from product use
D) Are governed by a contractual relationship and liability is determined by the contract
E) Are often not responsible for damages resulting from the use of their product

• Ques. 36 - The tort of nuisance -

A) Refers to the interference with another's enjoyment of property
B) Could include forms such as noise, vibration, fumes, and contaminants
C) Aims to balance the use and enjoyment of competing landowners
D) Must result in more than minor problem
E) All of the above