Introduction to Law of torts

“Torts are civil wrongs for which the injured party may seek legal redressal for.” The injured party in case
of torts is entitled to claim ‘unliquidated damages', the judgment of which is given by the judge of a court
based on the facts, circumstances and the amount of injury suffered which is actually suffered by the
injured party. Tort law is largely based on common sense and the understanding prevalent between people
in their everyday interactions with each other. The purpose of tort law is to ensure that people reasonably
coexist with each other. In case of a tort case there are two parties involved in it i.e. plaintiff and
defendant. Plaintiff is the person whose rights have been violated, the one who has been injured. He is the
one who is the complainant, who comes to the court seeking remedy. On the other hand defendant is a
person who has violated the rights of the other person and has injured the other person. For the society to
peacefully coexist, each member of the society has to fulfill some duties towards the other people of the
society. Duties to respect people's private spaces, not to do things that unfairly disturb others, be careful
and diligent when we deal with fellow beings, etc. just as we have such duties, others have the right to
expect us to do these duties. Similarly, others also have duties towards us, and we have the right to expect
them o fulfill these duties. Thus all people are interlinked to each other for these rights and duties towards
each other, creating a world of rights and duties. We have the right to things like private spaces, the right
not to be unfairly disturbed etc. we have the duty of respecting the above rights of others. The law of torts
deals with the violation of these rights by the people. These rights are not mentioned in the written laws
generally, but these have become the part of the legal system by common law and by the acceptance of
the masses.

For explaining this I would like to demonstrate an example, a man was walking in a garden on a bright
sunny day and started swinging the umbrella while walking in the park. Unfortunately, the umbrella
ended up smashing the other pedestrian on his nose. The person injured was very upset with this act. So
when the injured man took up this issue with the first man, first man replied that he has the right to walk
in a public place in the manner which suits him. The second man replied to the first man saying that the
first man's rights end where the rights of the second man begin.

Few examples of the torts or civil wrongs are: nuisance, negligence, trespass, defamation, etc. Now in the
next section I would discuss some definitions which are used very commonly in the law of torts. Civil
wrongs mean those wrong actions that are not recognized by the state as being criminal wrongs. Criminal
wrongs are more serious and are harmful for the whole society. On the other hand the civil wrongs are
against private parties. Suppose a person walks in to the private property of other person then he commits
a trespass. This act concerns only one person and does not concern the public so it is a case of tort. On the
other hand, if a person murders someone, then such a person is danger to the whole society, because the
whole society is concerned with the lives of community members. In this case the wrong is a criminal
wrong as opposed to a civil wrong. Therefore, civil wrongs are usually defined in distinction to criminal
wrongs and deal with private rights that arise by the virtue of being a member of a community, rather than
dealing with public rights that the public has as a whole against every individual.

Damages are compensation payable to the injured party for injuries sustained because of the wrong
committed by the wrongdoer. It is usually the most common remedy of torts. This is so because in torts it
is very rare, and almost impossible, to undo the damage done and restitute a person as they were before
suffering the damage. The only way of soothing the injury is by awarding damages, which, though
monetary in nature, are compensation, nevertheless. By this I mean that it is the most common remedy in
torts. Unliquidated damages are those damages, the amount or extent of which has not been
predetermined or decided before the wrong has committed. In civil wrongs such as torts there are no
agreements as the parties are mostly unlikely aware of the fact that something like this will happen, for
example when a person trespasses into land of another by unknowingly or in case a person plays loud
music which causes harm to someone else, so the damages are not predetermined and are therefore
unliquidated.

Law of Torts in India

India has inherited the law of torts from the English legal system. Barring a few civil laws, there are no
written laws that specifically and comprehensively deal with the law of torts. It is up to the Indian courts
to apply an English tort principle if justice demands it in a certain situation, either entirely, or with
appropriate modifications, as is the demand of the case or the facts. But it is of great importance to
remember that it is upon the court to decide that such principals are applicable or not. Very few tort claim
cases comes to the courts, primarily people are not because people are not aware of their rights, and also
because fighting a court case, in Indian scenario, is often not worth the time and effort. This is completely
different from countries like America and United Kingdom where the tort claims are frequent as the
people are aware of their rights.
Tort Liability under Law of Torts The General defences are as follows:

- Volenti non fit injuria, or the defence of ‘Consent’

VOLENTI NON FIT INJURIA, OR THE DEFENCE OF ‘CONSENT’

When a person consents to the infliction of some harm upon himself, he has no remedy for that
in tort. In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain
of that and his consent serves as a good defence against him. No man can enforce a right which
he has voluntarily waived or abandoned. When you invite somebody to your house, you cannot
sue him for trespass, nor can you sue the surgeon after submitting to a surgical operation because
you have expressly consented to these activities. Similarly, no action for defamation can be
brought by a person who agrees to the publication of matter defamatory of himself. Many a time,
the consent may be implied or inferred from the conduct of the parties as in the case of Hall v.
Brooklands Auto Racing Club [ (1932) All E.R Rep. 208]1 The plaintiff was a spectator at a
motor car race being held at Brooklands on a track owned by the defendant company. During the
race, there was a collision between two cars, one of which was thrown among the spectators,
thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury,
the danger is inherent in the sport which any spectator could foresee, the defendant was not liable

The consent must be free

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For the defence to be available, it is necessary to show that the plaintiff’s consent to the act done
by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under
compulsion or under some mistaken impression, such consent does not serve as a good defence.
Moreover, the act done by the defendant must be the same for which the consent is given.

For the maxim volenti non fit injuria to apply, two points have to be proved, The plaintiff knew
that the risk is there, knowing the same, agreed to suffer the harm if only first of these points is
present i.e., there is only the knowledge of the risk, it is no defence because the maxim is volenti
non fit injuria. Merely because the plaintiff knows of the harm does not imply that he assents to
suffer it. In Smith v. Baker [(1891) A.C 325]2 the plaintiff was a workman employed by the
defendants on working a drill for the purpose of cutting a rock. With the help of a crane, stones
were being conveyed from one side to the other, and each time when the stones were conveyed,
the crane passed from over the plaintiff’s head. While he was busy in his work, a stone fell from
the crane and injured him. The employees were negligent in not warning him at the moment of a
recurring danger, although the plaintiff had been generally aware of the risk. It was held by the
House of Lords that as there was mere knowledge of risk without the assumption of it, the
maxim volenti non fit injuria did not apply and the defendants were liabl

PLAINTIFF THE WRONGDOER

The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. This
defence arises from the Latin maxim “ex turpi causa non oritur action” which means no action
arises from an immoral cause.3 Where the maxim is successfully applied it acts as a complete bar
on recovery. It is often referred to as the illegality defence, although it extends beyond illegal
conduct to immoral conduct. In Bird v Holbrook [ (1828) 4 Bing. 628] The plaintiff, trespasser
over the defendant’s land was entitled to claim compensation for injury caused by a spring gun
use by the defendant, without notice, in his garden.4 Let us consider a situation in which a bridge,
under the control of the defendant, given way when an overloaded truck, belonging to the

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plaintiff, passes through it. If the truck was overloaded, contrary to the warning notice already
given and the bridge would not have given way if the truck was properly loaded the plaintiff’s
wrongful act is the determining cause of the accident.

INEVITABLE ACCIDENT

Accident means an unexpected injury and if the same could not have been foreseen and avoided,
in spite of reasonable care on the part of the defender, it is the inevitable accident. It is, therefore,
a good defence if the defended can show that he neither intended to injure the plaintiff nor could
he avoid the injury by taking reasonable care.

ACT OF GOD

The act of God or Vis Major or Force Majeure may be defined as circumstances which no human
foresight can provide against any of which human prudence is not bound to recognize the
possibility, and which when they do occur, therefore are calamities that do not involve the
obligation of paying for the consequences that result from them. The act of God is a defence used
in cases of torts when an event over which the defendant has no control over occurs and the
damage is caused by the forces of nature. In such cases, the defendant will not be liable in tort
law for such inadvertent damage.

PRIVATE DEFENCE

The law permits the use of reasonable force to protect one’s person or property. If the defender
uses the force which is necessary for self-defense, he will not be liable for the harm caused
thereby. To use this defence three conditions need to be satisfied. There should be an imminent
threat to the personal safety or property, for example, A would be justified in using a force
against B, merely because he thinks that B would attack him some day, nor can the force be
justified by way of retaliation after the attack is already over. The force that is used is absolutely
necessary to repel the invasion should be used for. The force used by the defendant should be in
proportion to the act committed and enough to ward off the imminent danger. In the case of Bird
v. Holbrook [(1823) 4 Bing. 628,130 E.R. 91] deals with the defence of protection of property.
Holbrook, the defendant set up a spring-gun trap in his garden in order to catch an intruder who
had been stealing from his garden.5 He did not post a warning. Bird, the petitioner chased an
escaped bird into the garden and set off the trap, suffering serious damage to his knee. Bird sued
Holbrook for damages. It was held that while setting traps or “man traps” can be valid as a
deterrent when notice is also posted, D’s intent was to injure someone rather than scare them off.
Hence he was held liable.

MISTAKE

Mistake, whether of fact or of law, is generally no defence to an action for tort. When a person
willfully interferes with the rights of another person, it no defence to say that he had honestly
believed that there was some justification for the same, when in fact, no such justification existed
Entering the land of another thinking that to be one’s is trespass, taking away another umbrella
thinking that to be one’s own and injuring the reputation of another without any intention to
defame is defamation in such situations the defence of mistake cannot be taken. In Consolidated
Co. v. Curtis [(1894) 1 Q.B. 495], an auctioneer was asked to auction certain goods by his
customer honestly believing that the goods belonged to the customer he auctioned them and he
paid the sale proceeds to the customer.6 In fact, the goods belonged to the other person. In an
action by the true owner, the auctioneer was held liable for a tort of conversion. To this rule,
there is some exception when the defender may be able to avoid his liability by showing that he
acted under an honest but mistaken belief.

NECESSITY

An act causing damage, if done under a necessity to prevent a greater evil is not actionable even
though harm was caused intentionally. Necessity should be distinguished from the private
defence. In necessity, there is an infliction of harm on an innocent person whereas in private
defence harm is caused to a plaintiff who himself is the wrongdoer. Necessity is also different
from the inevitable accident because, in necessity, the harm is an intended one, whereas, in the
inevitable accident, the harm is caused in spite of the best effort to avoid it, throwing goods
overboard a ship to lighten it for saving the ship or person on board the ship, or pulling down a
house to stop a further spread of fire is a common example of necessity. In Cope v. Sharpe

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[(1891) 1 K.B. 496.] the defendant entered the plaintiff’s land to prevent the spread of fire to the
adjoining land over which the defendant’s master had the shooting rights. Since the defendant’s
act was considered to be reasonably necessary to save the game from real and imminent danger,
it was held that the defendant was not liable for trespass.7 If, however, that interference is not
reasonably necessary, by the defender will be liable. In Carter v. Thomas [(1891) Q.B. 673], the
defender, who entered the plaintiff’s premises in good faith to extinguish a fire at which the
fireman had already been working, was held liable for trespass.8

STATUTORY AUTHORITY

When an act is done, under the authority of an Act, it is complete defense and the injured party
has no remedy except for claiming such compensation as may have been provided by the statue,
the damage resulting from an act, which the legislature authorizes or directs to be done, is not
actionable even though it would otherwise be a tort for example, if a railway line is constructed
there may be interference with private land.9 When the train is run, there may also be some
incidental harm due to noise, vibration, smoke, emission of sparks, etc. No action will lie either
for interference with the land or for incidental harm, except for the payment of such
compensation which the Act itself may have provided, because the construction and the use of
the railway are authorized under a statute. However, this does not give the authorities the license
to do what they want unnecessarily; they must act in a reasonable manner. It is, for this reason,
certain guidelines that need to be followed during construction of public transport facilities.

In Smith v. London and South Western Railway Co. [(1870) L. R 6 C. P. 14.] the servants of a
Railway Co. negligently left trimming of grass and hedges near a railway line. Sparks from an
engine set the material on fire. By a heavy wing, the fire was carried to the plaintiff’s cottage,
200 yards away from the railway line. The cottage was burnt. Since it was a case of negligence
on the part of the Railways Co, they were held liable.10

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