Q. Define Tort and Law of Tort.

Discuss its
nature. What are its various ingredients? What
conditions must be satisfied before a liability in Tort
arises? "A tort is a civil injury but all civil injuries are
not Torts". Explain. Distinguish between Tort and
Crime.How many kinds of Torts are there?
The word tort has been derived from the latin word "tortum" which means to twist. In general, it means conduct that adversely
affects the legal right of others and is thus, "wrong". For a healthy society it is necessary that it be free of 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. Where ever there is a right, there is a remedy. Indeed, a right has no value if there is no way to enforce it. Such rights of
individuals primarily originate from two sources - contractual obligations and inherent rights that are available to all the citizens
against every other citizen, aka rights in rem. While the violation of contractual right has clear remedy that arises from the contract
itself, the violation of rights that are available to all the persons in general does not have a clear remedy because there is no explicit
contract between the two parties. Such violations are called wrongs and it is for such wrongs that the law of torts has been
developed. For example, one has a right against all other persons to be free of noise in the night. If somebody starts playing music
loudly, then he violates one's right to be noise free. He is, thus, doing a wrong and even though there is no contract between the
two, one can sue him for damages.
There can be innumerable types of acts that can transgress the rights of others and it is not possible to come up with a definition
that can accommodate all the cases. However, the following are some definitions from the experts Salmond - A tort is a civil wrong for which the remedy is action in common law for unliquidated damages and which is not
exclusively a breach of contract or breach of trust or other equitable obligation.
Winfield - Tortious liability arises from the breach of duty primarily affixed by law. The duty is towards persons in general and its
breach is redressable by an action for unliquidated damages.
Fraser - Tort in an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.
Thus, it can be seen that tort is an act while the law of tort is the branch of law that provides relief to the person who has been
injured due to a tortious act.
From the above definitions, it is clear that the nature of a tort is that it is a civil wrong. However, not all civil wrongs are torts. For
example, breach of contract and breach or trust are civil wrongs but are not torts because their remedies exist in the contract itself.
To determine if a particular act is a tort or not, we must first make sure that it is a civil wrong. We should then make sure that it is
NOT a breach of contract or breach of trust.
Historically, crime and tort originated from the same root. Later on, they separated on the account that a crime does not only affect
the victim but also to the society as a whole to a great extent. Thus, the branch of law that deals with criminal conduct evolved a lot
faster than the branch of law that deals with torts.
The nature of tort can be understood by distinguishing it from crime and contractual civil liabilities. It can be said that tort is the
residual of wrongful acts that are not crime and that do not fall under contractual liabilities. Thus, if a wrongful act is neither crime
nor a violation of a contract, it may fall under tort. The damages are unliquidated and are decided only by the common sense of the
courts. The following differences between Tort and Crime and Tort and Breach of Contract, shows the true nature of Tort.

Distinction between Tort and Breach of Contract

Tort

Breach of Contract

Tort occurs when the right available to all the persons in general (right in rem) is violated without the
existence of any contract.

A breach of contract occurs due to a breach of

agreed upon by the parties themselves.

Victim is compensated for unliquidated damages as per the judgment of the judges. Thus, damages are

Victim is compensated as per the terms of the

always unliquidated.

usually liquidated.

Duty is fixed by the law of the land and is towards all the persons.

Duty towards each other is affixed by the contr

parties.

Doctrine of privity of contract does not apply because there is no contract between the parties. This was
held in the case of Donaghue vs Stevenson 1932.

Only the parties within the privity of contract ca

Tort applies even in cases where a contract is void. For example, a minor may be liable in Tort.

When a contract is void, there is no question o

example, a contract with a minor is void ab initi
be held liable for anything.

Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to
the victim. In Bhim Singh vs State of J K AIR 1986 - the plaintiff was awarded exemplary damages for Justice is met only by compensating the victim
violation of his rights given by art 21.
In the case of Donaghue vs Stevenson 1932, A purchased ginger beer in a restaurant for his woman friend. She drank a part of it
and poured the rest into a glass. Thereby, she saw a dead snail in the drink. She sued the manufacturer. It was held that the
manufacturer had a duty towards the public in general for making sure there are no noxious things in the drink even though there
was no contract between the purchaser and the manufacturer.
The same principal was applied in the case of Klaus Mittelbachert vs East India Hotels Ltd AIR 1997. In this case, Lufthansa
Airlines had a contract with Hotel Oberoi Intercontinental for the stay of its crew. One of the co-pilots was staying there took a dive in
the pool. The pool design was defective and the person's head hit the bottom. He was paralyzed and died after 13 yrs. The
defendants pleaded that he was a stranger to the contract. It was held that he could sue even for the breach of contract as he was
the beneficiary of the contract. He could also sue in torts where plea of stranger to contract is irrelevant. The hotel was held liable for
compensation even though there was no contract between the person and the hotel and the hotel was made to pay 50Lacs as
exemplary damages.

Distinction between Tort and Crime

Tort

Crime

Tort occurs when the right available to all the persons in general (right in
rem) is violated without the existence of any contract.

Tort occurs when the right available to all the

persons in general (right in rem) is violated
and it also seriously affects the society.

Act is comparatively less serious and affects only the person.

Act is comparatively more serious and affects

the person as well as the society.

Intention is usually irrelevant.

Intention is the most important element in

establishing criminal liability. A crime cannot
happen without Mens Rea.

It is a private wrong.

It is a public wrong.

Since it is a private wrong the wronged individual must file a suit himself
for damages.

Since it is a public wrong, the suit is filed by

the govt.

The suit is for damages.

The suit is for punishment.

Compromise is possible between the parties. For example, a person who There is no compromise for the punishment.
has been defamed, can compromise with the defamer for a certain sum
For example, if a person is guilty of murder, he
of money.
cannot pay money and reduce his sentence.
Compounding is possible.

Compounding is generally not possible.

Justice is met by compensating the victim for his injury and exemplary
damages may also be awarded to the victim. In Bhim Singh vs State of
J K AIR 1986 - the plaintiff was awarded exemplary damages for violation
of his rights given by art 21.

Justice is met by punishing the aggressor by

prison or fine. In some specific cases as given
in IPC compensation may be given to the
victim.

Tortious acts are usually not criminal acts.

Several criminal acts such as assault and

battery are also grounds for tortious suit.

Ingredients of Tort (Conditions that must be satisfied

before a liability in Tort arises.)

There are three essential elements for an act to be liable under Tort.
1. Wrongful act or omission - There must be some act or omission of a duty on the part of the defendant. For a tort to happen, the
person must have first either done something that he was not expected to do or omitted to do something that he was supposed to
do.
Municipal Corp of Delhi vs Subhagvanti AIR 1966 - A clock tower was not in good repairs. It fell and killed several people.
MCD was held liable for its omission.
2. Duty imposed by law - The act or omission of an action must be required by law or the duty must be imposed by law. This
means that if an act that is prohibited by law causes harm, it is liable under tort. Similarly, if the omission of an act that is required by
law, causes harm, then it is liable under tort. For example, law requires that the driver of a vehicle must drive carefully and if driving
without care, a pedestrian is hit, the omission of the act of driving carefuly is liable under tort. However, if the worshipers stop going
to a temple and thereby cause the priest to lose money, this action is not liable under tort because going to temple is not an act that
is required by law. Such duties that are required by law are usually towards all the people in general.
Donaghue vs Stevenson 1932 - Held that the manufacturer of a drink has a legal duty towards the consumers to ensure
that noxious substances are not included in the drink.
3. Injury - The act or the omission must result in legal damage or injury i.e. violation of a legal right vested in the plaintiff. This
means that the act or omission must cause a damage that is recognized by law as wrongful. For example, a person has a legal right
to enjoy his property and if someone throws trash in it, this is a violation of his legal right and is liable under tort. However, it is
possible that a legal right is violated without causing any physical or real damage. This is explained in the maxim - Injuria Sine
Damno.
Injuria Sine Damno Ashby vs White 1703 - The defendant wrongfully prevented the plaintiff from voting. Even though there was no damage, the
defendant was held liable.
Bhim Singh vs State of J K AIR 1986 - Plaintiff was an MLA and was wrongfully arrested while going to assembly session.
He was not produced before a magistrate within the requisite period. It was held that this was the violation of his fundamental rights.
Even though he was release later, he was awarded 50,000RS as exemplary damages by SC.
On the other hand, it is possible that a person suffers a huge loss or damage but none of his legal rights are violated. This is called
Damnum sine Injuria. In such cases, there is no tortious act.
Damnum Sine Injuria Glaucester Grammar School's case 1410 - Defendant opened a rival grammar school in front of an existing one thereby
causing the fees of the existing one to be reduced from 40pence to 12 pence. He was not held liable as he did not violate any legal
right of the plaintiff.
Ushaben vs BhagyaLaxmi Chitra Mandir AIR 1978 - Plaintiff sought a permanent injunction against the cinema house to
restrain them from showing the movie Jai Santoshi Maa. It was contended that the movie depicts the goddesses Laxmi, Saraswati,
and Parvati in bad light, which is offensive to the plaintiff. It was held that hurt to religious sentiments is not recognized as a legal
wrong. Since there was no violation of a legal right, an injunction was not granted.
Chesmore vs Richards 1879 - Plaintiff had been drawing water from underground for past 60 yrs. The defendant sunk a
bore well on his land and drew huge quantity of water which diminished the water supply of the plaintiff. It was held that the
defendant was not liable because he was only exercising his right and did not violate any right of the plaintiff.
Harm due to negligence - A person is not liable in tort even if he causes harm due to negligence but does not cause injury.
In Dickson vs Reuter's Telegram Co 1877, the defendant company delivered a telegram that was not meant for the plaintiff to the
plaintiff. Based on the telegram, the plaintiff supplied some order which was not accepted by the sender of the telegram. Plaintiff
suffered heavy losses and sued the defendant company. It was held that the company owed a contractual duty only to the sender of
the telegram and not to the receiver. Hence they were not liable.
Harm due to malice - If a person has not caused an injury even if he does an act with malice, he is not liable. InBradford
Corporation (mayor of) vs Pickles 1895, the defendants sunk a shaft in their own land which caused the water to become
discoloured and unsuitable for the plaintiff. It was held that even if the defendant did it with malice, he had not violated any right of
the plaintiff and hence was not liable.
4. Legal Remedy - Historically, a person whose legal right was violated was allowed to sue only upon a permission from the King.
There were only certain predefined torts for which the king's permission could be obtained. Thus, it was necessary to have legal
remedy for that particular violation before an action for damages could be started.
However, now, such a requirement is not there. It has been accepted that there can be many kinds of torts and if a violation of a
legal right has happened, the person is enttitled to sue.

Kinds of Torts
As mentioned before there can be innumerable type of acts that violate the legal right of others. The law of tort is therefore ever
evolving. New ways in which the rights are violated come to light everyday. However, they can be classified on the basis of way of
incurrment of liability into the following three categories -

1.

Intentional - Wrongful acts that are done intentionally, irrespective of with or without malice, belong to this category. For
example, torts such as assault, battery, trespass to land, false imprisonment are intentional torts.

2.

Negligent Conduct - Wrongful acts that are done without any intention but because of not taking proper care that is
required by law fall into this category.

3.

Strict Liability - Acts that are neither done intentionally nor do involve any negligence, but still cause an injury to other are
liable under the concept of strict liability as propounded in Rylands vs Fletcher. In strict liability cases, the defendant is
liable even if it acted reasonably. There are 3 types of strict liability cases:
1- keeping wild animals
2- dangerous, legal activities such as blasting roads
3- the manufacture of products (products liability)

Torts can also be classified according to the type of damage -

1.

Physical Torts - Causing physical hurt to body such as assault, battery. It can happen with intention or even with
negligence.

2.

Abstract Torts - Causing damage to mind or reputation such as defamation.

3.

Tort involving property - For example, Trespass to land.

4.

Tort involving legal right - For example, false imprisonment.

5.

Nuisance - Causing unreasonable restriction towards exercise of one's legal right.

Q. Describe general exceptions regarding Torts that

are not actionable / General Defences for Torts.
Even when a plaintiff provides proof for the existance of all the essential elements of a tort, it is possible in some cases for the
defendant to take certain defences which can remove his liability, These defences are nothing but specific situations or
circumstances in which a defendant is given a waiver for his tortious action. These are as follows -

1. Volenti Non fit Injuria

When a person consents for infliction of an harm upon himself, he has no remedy for that in Tort. That means, if a person has
consented to do something or has given permission to another to do certain thing, and if he is injured because of that, he cannot
claim damages. For example, A purchases tickets for a Car race and while watching the race, an collision of cars happens and the
person is injured. Here, by agreeing to watching the race, which is a risky sport,it is assumed that he voluntarily took on the risk of
being hurt in an accident. Thus, he cannot claim compensation for the injury.
Such a consent may be implied or express. For example, a person practicing the sport of Fencing with another, impliedly consents
to the injury that might happen while playing.
In Woolridge vs Sumner 1963, the plaintiff a photographer was taking photographs at a horse show, during which one horse
rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell in the course. He was seriously
injured. It was held that the defendants had taken proper care in closing the course and the plaintiff, by being in the show, agreed to
take the risk of such an accident. The defendants were not held liable.
However, the action causing harm must not go beyond the limit of what has been consented. For example, in a sport of fencing, a
person consents to an injruy that happens while playing by the rules. If he is injured due to an action that violates the rules, he can
claim compensation because he never consented to an injury while playing without rules.
In Laxmi Rajan vs Malar Hospital 1998, a woman consented for a surgery to remove a lump from her breast. But the hospital
removed her uterus as well without any genuine reason. It was held that removing of her uterus exceed beyond what she had
consented for.
Also, the consent must be free. It must not be because of any compulsion. Thus, if a servant was compelled by the master to do a
certain task despite his protests, and if he is injured while doing it, the master cannot take the defence of volenti non fit injuria
because the consent was not free.
Exceptions - In the following conditions, this defence cannot be taken even if the plaintiff has consented -

1.

Rescue Conditions - When the plaintiff sufferes injury while saving someone. For example, A's horse is out of control
and is galloping towards a busy street. B realizes that if the horse reaches the street it will hurt many people and so he
bravely goes and control's the horse. He is injured in doing so and sue's A. Here A cannot take the defence that B did that
act upon his own consent. It is considered as a just action in public interest and the society should reward it instead of
preventing him from getting compensation.

2.

Unfair Contract Terms - Where the terms of a contract are unfair, the defendant cannot take this defence. For example,
even if a laundry, by contract, absolves itself of all liability for damage to clothes, a person can claim compensation
because the contract is unfair to the consumers.

2. Plaintiff the wrongdoer

A person cannot take advantage of his own wrong. This principle has been in use since a long time as it is just and equitable. For
example, a person trespassing one another's property is injured due to darkness. He cannot claim compensation because he was
injured due to an action which was wrong on his part. However, this defence exists only if the injury happens because of a wrongful
act of the plaintiff. It does not exist if the injury happens because of a wrongful act of the defendant even if the plaintiff was doing a
wrongful but unrelated act. For example, in Bird vs Holbrook 1828, the plaintiff was trespassing on the defendant's property and he
was hurt due to a springgun. The defendant had put spring guns without any notice and was thus held liable.

3. Inevitable Accident
Accident means an unexpected occurance of something that could not have been predicted or prevented. In such a case, the
defendants will not be liable if they had no intention to cause it and if the plaintiff is injured because of it. For example, inStanley vs
Powell 1891, the plaintiff and the defendant were members of a shooting party. The defendant shot a bird but the bulled ricocheted
off a tree and hit the plaintiff. The defendant was not held liable because it was an accident and the defendant did not intent it and
could neither have prevented it.
However, the defence of Inevitable Accident is not a license to negligence. For example, A has hired B's car. While driving, one of
the tires bursts and causes accident injuring A. Here, if the tires were worn out and were in bad condition, it would be negligence of
B and he would be held liable for A's injuries.

4. Act of God
An act of God in a legal sense is an extraordinary occurance of circumstance which could not have been predicted or prevented and
happens because of natural causes. Nobody can predict, prevent, or protect from a natural disaster such an an earthquake or flood.
Thus, it is unreasonable to expect a person to be liable for damages caused by such acts of God. There are two essential condtions
for this defence - the event must be due to a natural cause and it must be extraordinary or some thing that could not have been
anticipated or expected. For example, heavy rains in the monsoon are expected and if a wall falls and injures someone, it cannot be
termed an act of god because protection for such expected conditions should have been taken. But if a building falls due to a
massive earhquake and injures and kills people, this defence can be used.
In Ramalinga Nadar vs Narayan Reddiar AIR 1971, it was held that criminal activities of an unruly mob is not an act of God.

5. Private Defence
As per section 96 of IPC, nothing is an offence that is done in exercise of the right of private defence. Thus, law permits the use of
reasonable and necessary force in preventing harm to human body or property and injuries caused by the use of such force are not
actionable. However, the force must be reasonable and not excessive. In Bird vs Hollbrook 1892, the defendant used spring guns
in his property without notice. It was held that he used excessive force and so was liable for plaintiff's injury even though the plaintiff
was trespassing on his property.

6. Mistake
Generally, mistake is not a valid defence against an action of tort. Thus, hurting a person under the mistaken belief that he is
trespassing on your property, will not be defensible. However, in certain cases, it could be a valid defence. For example, in the case
of malicious prosecution, it is necessary to prove that the defendant acted maliciously and without a reasonable cause. If the
prosecution was done only by mistake, it is not actionable.
Further, honest belief in the truth of a statement is a defence against an action for deceit.

7. Necessity
If the act causing damage is done to prevent a greater harm, it is excusable. For example, a Ship ran over a small boat hurting 2
people in order to prevent collision with another ship which would have hurt hundreds of people is excusable. Thus, in Leigh vs
Gladstone 1909, force feeding of a hunger striking prisoner to save her was held to be a good defence to an action for battery.

8. Statutory Authority
An act that is approved by the legislature or is done upon the direction of the legislature is excused from tortious liability even though
in a normal circumstances, it would have been a tort. When an act is done under the authority of an Act, it is a complete defence
and the injured party has no remedy except that is prescribed by the statute.
In Vaughan vs Taff Valde Rail Co 1860, sparks from an engine caused fire in appellant's woods that existed in his land adjoining
the railway track. It was held that since the company was authorized to run the railway and since the company had taken proper
care in running the railway, it was not liable for the damage.