Notes on Law of Torts

MODULE I

INTRODUCTION

The word ‘tort’ is a French origin and has been derived from the Latin word “tortum” which
means to twist and implies conduct which is tortious or twisted. The word tort is equivalent of the
English word “wrong” of the Roman word ‘delicit’ and of the Indian Sanskrit word ‘jimha’.
According to P. Sen., this Sanskrit word ‘Jimha which means ‘crooked’ was used in ancient Hindu
Law text in the sense of tortious or fraudulent conduct. In 1065 England was conquered by the
Normandy people. Normandy is a place in France. After Norman Conquest, French became the
spoken language of the courts and language of treaties for a long number of years. Thus, it
happened that many technical terms of English law are French in origin and tort is one of them.

The Law of Torts in India:

Under the Hindu law and Muslim law tort had a much narrower conception than the tort of the
English law. The punishment of crimes in these systems occupied a more prominent place than
compensation for wrongs. Its origin in India linked with the establishment of British courts in
India.

In the 18th century the first British courts were established in the three presidency towns of
Bombay, Calcutta and Madras. These courts were known as Mayor’s courts. The charter which
established them introduced in their jurisdiction, the English common law of torts in force at the
time so far as it was applicable to the Indian circumstances. Thus the word ‘tort’ was introduced
in Indian Legal system.

Definition of Tort:

Academics have attempted to define the law of tort, but a glance at all the leading text books on
the subject will quickly reveal that it is extremely difficult to arrive at a satisfactory, all-embracing
definition. Each writer has a different formulation and each states that the definition is
unsatisfactory.
Winfield: “Tortious liability arises from a breach of a duty priority fixed by law; this duty is
towards persons generally and its breach is reddressable by an action for unliquidated damages”.
This definition is more informative but is far from perfection.

Salmond: Tort is a civil wrong for which the remedy is a common law action for unliquidated
damages and which is not exclusively the breach of a contract or the breach of a trust or other
merely equitable obligation.

Clerk & Lindsell: A tort may be described as wrong independent of contract for which the
appropriate remedy is common law action. Both these definitions failed to explain what is wrong.

Fraser: “It is an infringement of right in rem of a private individual giving a right of compensation
at the suit of the injured party.” This definition also lacks some perfection.

See 2(m) of Indian Limitation Act, 1963: “Tort means a civil wrong which is not exclusively a
breach of contract or breach of trust.” This definition is good but it fails to explain the civil wrong
and its remedies.

The essential features of tort which appear from the above definitions are as follows: -

1. Tort is a civil wrong as it is a breach of duty.

2. The duty is one imposed by the state. It is not self-imposed as in contract. That is why the
definition makes it clear that the duty is one not arising out of contract.
3. The duty must be towards persons generally.
4. The remedy of a person aggrieved by a tort is that an unliquidated damage.

In order to understand the exact nature of tort, it is necessary to distinguish tort from other branches
of law, and in so doing to discover how the aims of torts differ from the aims of other areas of law
such as contract law and criminal law.

TORT AND CRIME:

1. A tort is an infringement of private or civil right of an individual. A crime is a breach of

public right and duties which affect the community as a whole.
 2. The wrongs which are comparatively less serious are considered to be private wrongs and
have been labeled as wrongs where as more serious wrongs have been considered to be
public wrongs and are known as crimes.
3. In tort the action is instituted by the injured party. In Crime the proceedings are conducted
in the name of the state.
4. The rules applicable in case of tort are generally different from those in the case of crime.
E.g. in the case of tort of defamation, truth is in itself a good defence but is an action for
the offence of defamation the defence of the truth can be taken if the publication was made
for public good.
5. Intention is important in tort but not in all cases e.g. Negligence. In crime intention is the
crux of the offence.
6. In tort an individual at his own cost and effort conducts a case but in criminal law the public
prosecutor at the cost of state conducts the proceedings.
7. The object of an action in tort is recovery of compensation. Whereas the object of criminal
law is to punish the offender.
8. In tort unliquidated damages can be recovered. But in criminal law it is not possible.

TORT AND CONTRACT (BREACH OF CONTRACT)

1. In tort duty is fixed by the law itself. In contract the duty is fixed by the parties themselves.
2. In tort duty is towards every person of the community or society. In contract the duty is
towards specific person or persons.
3. Tort is a violation of a right in rem. It vindicates numerous types of interests like interest
in person (Assault, Battery) interest in property (trespass to land, nuisance etc.) Breach of
contract is violation of a right in personam. It vindicates only single interests.
4. A tort is committed against or without consent. A contract is based on consent.
5. In torts privity rule is out of place but in contract privity between parties must be proved.
6. In tort motive also considered but in contract motive is not relevant.
7. In torts, gratuitous service if negligently performed invites an action. But in breach of
contract breach of a gratuitous undertaking is not actionable.
 8. In tort damages recoverable are unliquidated and uncertain in amount. In contract damages
are compensatory and not punitive.
9. Tort law is concerned with losses. But contract law concerned with promises.

UBI JUS IBI REMEDIUM.

This maxim forms the very foundation of the law of torts. The maxim means where there is a right
there is a remedy. In other words, no wrong can remain without remedy. Jus signifies the legal
authority to do or to demand something and remedium is the right of action or the means offered
by law to assert the right or to recover something under it.

Holt in Ashby V. White1 very significantly observed, if a person has a right, he must of necessity
have a means to vindicate and to maintain it, and a remedy if he is injured in the exercise or
enjoyment of it, and indeed it is a vain thing to imagine a right without a remedy; want of right
and want of remedy are reciprocal.

This maxim is ever-fresh and is like a livewire that keeps the law alive to the needs of society.

ESSENTIALS OF A TORT:

In order to constitute a tort, the following three conditions are to be satisfied:

1) There must be a wrongful act or omission on the part of the defendant:

In order to make a person liable for a tort he must have done some act which he was not
expected to do or he must have omitted to do something which he was supposed to do. E.g. ‘A’ is
under a duty not to trespass into “B’s property, ‘A’ trespassed into the B’s property, so A’s act is
a wrongful action, and B can claim compensation.

1 (1703) 2 Lord Rayam 933

 If ‘A’ is under a duty to provide fencing to keep the children away from a poisonous tree,
but he failed to do so, so a child plucked and ate the fruits and died. A is liable for his omission.
(Glasgow corps v.Taylor2)

A municipal corporation is failed to keep the Clock Tower in proper repairs and resulted
in the falling of the same which resulted into death of number of persons. Corporation held liable
for its omission. (Municipal Corporation, Delhi v. Subhawanti3 )
The wrongful act or omission must be one recognized by law, if there is a mere moral wrong, there
cannot be a liability for the same. E.g. A failed to help a starving man, A failed to help a drowning
child, in these cases there is no liability arise.

2) The wrongful act or omission must cause legal damage to the plaintiff:

In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal
damage caused to him if there has been a violation of a legal right the same is actionable whether
as a consequence thereof the plaintiff has suffered any loss or not. This is expressed by the maxim
Injuria sine damnum.

Injuria sine Damnum:

Injuria means infringement of a right conferred by law on the plaintiff or an unauthorized

interference, howsoever trivial with plaintiff’s right. Damnum means substantial harm, loss or
damage in respect of money, comfort, health or the like. This maxim means infringement of private
legal right without damage or loss. In such a case the persons whose right has been infringed
entitled to bring an action and may recover damage from the person who has violated his right. It
means whenever there is an infringement of private legal right, the person in whom the legal right

2 (1922) 1 AC 44
3 AIR 1966 SC 1750
is vested is entitled to bring an action and may recover damages, although he has suffered no actual
loss or harm.

The leading example of this maxim is Ashby v. White4. In this case the defendant a returning officer
wrongfully refused to register a duty tendered vote of the plaintiff who has a qualified voter. The
candidate for whom the vote was tendered was elected and hence no loss was suffered by the
rejection of the plaintiff’s vote. The court awarded damages on the ground that the violation of
plaintiff’s legal right was an injury for which he must have a remedy and actionable without proof
of pecuniary damage.

In Bhim Singh v. State of J&K 5, the petitioner, an MLA of Jammu & Kashmir assembly was
wrongfully detained by the police while he was going to attend the assembly session. As a
consequence of this the member was deprived of his constitutional right to attend the assembly
session. The court awarded a sum of Rs. 50000/- as compensation.

In another case Constantine v. Imperial Hotels Ltd6, in this case the West Indies cricketer
Constantine was refused accomadation at the defendant’s hotel where he wished to stay and
already booked a room. The hotel authorities however gave accommodation at some other hotel
of theirs. The court held that the plaintiff was entitled to get a nominal damage.

Damnum Sine Injuria:

This maxim means damage or loss without infringement of legal right. Thus, no action lies
for mere damage or loss, however substantial caused by an act which does not infringe some legal
right of the plaintiff. This principle is well illustrated in Gloucester Grammar School case7. In this
case the defendant had set up a rival school to that of the plaintiffs with the result that the plaintiffs

4 See note 1

5 AIR 1968 SC 494

6 (1944) KB 693
7 1410 YB 11
were required to reduce the tuition fees of their school substantially as the boys from the plaintiff’s
school were running away to that the defendant’s school. It was held that the plaintiff had no cause
of action against the defendant because it was only a case of damnum sine injuria.

When an act or omission which has resulted in damage in lawful, that is when it has caused
damage to another in the mere exercise of a legal right, would an action lie in respect of it even
though the act or omission may be deliberate and harm caused is malicious. This question arised
in Mayor of Bradford v. Pickles8 Case, the defendant had a piece of land which he offered to the
Bradford Corporation for sale. The offer was not accepted this infuriated the defendant. The
corporation was supplying water to a village by means of wells on its own land. The wells were
fed by an underground stream passing underneath the land of the defendant which was on a higher
level. The defendant began to dig deep on his own land. The under-ground water was thus
impounded by him on his own land and was prevented from reaching the corporation well. The
object of the defendant was to compel the corporation to buy his land at his own price. The House
of Lords held that since the defendant was exercising his lawful right he could not be made liable
even though the defendant acted maliciously.
Mogul steamship Co. v. Mc Gregor Grow and Co9. In this case a number of steamship
companies combined together and drove the plaintiff company out of the tea- carrying trade by
offering reduced fright. The House of Lords held that the plaintiff had no cause of action as the
defendants had by lawful means acted to protect and extend their trade and increase their profits.

3. Legal Remedy:

The last and final ingredient of a tort is that there must be a civil action available for damages
which is the main remedy. Other remedies such as injunction are additional only. Where the
damages are the secondary remedy, the wrong though civil in nature not a tort. E.g. Injunction is
the appropriate remedy is the case of public nuisance without special damages.

PIGEON HOLE THEORY (FOUNDATION OF TORTIOUS LIABILITY)

8 (1895) AC 587
9 1892 AC 25
 ‘All injuries done to another person are torts unless there is some justification’ –Winfield
- Discuss

‘There is no law of tort, there is only law of torts’- Salmond

-Discuss

According to Winfield all injuries done to another person are torts unless there is some
justification recognized by law.

According to him if I injure my neighbor, he can sue me in tort whether the wrong happens
to have particular name like assault, battery, deceit, slander or whether it has no such name at all
and I shall be liable if I cannot prove lawful justification. On this view the law of tort consists not
merely of all those torts which have acquired specified names but also includes the wider principle
that all unjustifiable harms are tortious. This enables the courts to create new torts.

Against Winfield’s definition of tortious liability, therefore Salmond posed a pertinent

question, Does the law of torts consists of a fundamental general principle that it is wrongful to
cause harm to other persons in the absence of some specific ground or justification or excuse or
does it consist of a number of specific rules prohibiting certain kinds of harmful activity and
leaving all the residue outside the sphere of legal responsibility?

This brings us to well-known schools of thought one called the Unity Theory of Winfield
and the other, the Pigeonhole theory of Salmond. Winfield propagated that every injury is a tort
unless justified. Salmond exposed that no injury is a tort unless it falls within the specified category
of any accepted tort.

A tort is private wrong arising from the breach of a duty imposed by the state. The state
imposes duties of various kinds. For instance, there is a duty not to cause bodily harm to another,
a duty not to slander, and a duty not to enter upon the land of another without his permission and
so on. The breach of these duties gives rise respectively to the tort of trespass to person,
defamation, trespass to property and so on. There are thus a large number of torts in the nature of
things there need be no connection thread running through all these wrongs. For this reason it is
said that there is no law of tort as such and there is only a law of torts. This is called the Pigeon
hole theory of torts.

It is so called because each tort is supposed to occupy one pigeon-hole as it were and there
is no connecting link with the rest. According to Salmond the liability under this branch of law
arises only when the wrong is covered by any one or the other nominate torts. There is no general
principle of liability and if the plaintiff can place the wrong in any one of the pigeon- holes each
containing a labeled tort, he will succeed. If there is no Pigeon-hole in which the plaintiff’s case
could fit in, the defendant has committed no tort.

One important consequence of this theory is that no new torts can be recognized i.e. a novel
situation causing injury cannot lead to a new tort. It is true that courts are reluctant to recognize
new torts. But to assert that the categories of torts are closed would not be correct. Further we can
define tort as such without reference to any specific tort. This itself shows that we can have a
general law of tort. Thus, this theory is unsound.

However, each theory seems to have received some support. In 1702, Ashby v. White
clearly established in favour of the first theory (Winfield’s theory) recognizing ubi jus ibi
remedium. Holt CJ, said that if men will multiply injuries, action must multiplied too. For every
man who injured ought to have recompense. Similarly, in Chapman v. Pickers gill10, Prat CJ, said
Torts are infinitely various not limited or confined. This theory has been supported by Sir F.
Pollock and also it led to the creation of new torts, by the eminent judges. For e.g. In the case of
Palsely v. Freeman 11 tort of Deceit was created, inducement of breach of contract was in Lumely
v. Gye12, the rule of strict liability in Rylands v. Fletcher13, inducement to a wife to leave her
husband in Winsmore v. Greenbank 14, and the tort of intimidation in Rooks V. Barnard 15.

Dr Jenks favored Salmond’s theory. He has of the view that Salmonds theory does not
imply that the courts are incapable of creating new torts. According to him, the court can create
new torts but such torts cannot be created unless they are substantially similar to those which are

10 (1762) Wils 145

11 (1789) 3 TR 51
12 (1853) 2 E & B 216
13 (1868) LR 3 HL 330
14 (1745) Willies 557
15 1964 AC 1129
already in existence. His view does not appear to be correct as various new torts like deceit,
negligence, strict liability, which have come into existence, are not similar to any of those torts
which are already in existence.

Heuston is of the view that Salmond’s critics have misunderstood him. According to him
Salmond never committed himself to the proposition, certainly untenable now and probably always
so that the law of torts is a closed and in expansible system. Dr. Glanwille Williams also makes a
similar remark, according to him, to say that the law can be collected into pigeon holes does not
mean that those pigeon hole may not be capacious nor does it mean that they are incapable of being
added to.

Winfield made a modification in his stand in his subsequent edition regarding his own
theory. He now thought that both his and Salmond’s theories were correct, the first theory from a
broader point of view and the other from a narrower point of view. In the words of Winfield, from
a narrow and practical point of view the second theory will suffice but from a broader outlook the
first is valid. If we concentrate attention on the Law of Tort at the moment entirely excluding the
development of law, past and future then it corresponds to the second theory. If we take the wider
view that law of tort has grown from centuries and is still growing then the first theory seems to
be at the back of it. It is the difference between treating a tree as inanimate for the practical
purposes of the moment e.g. For the purpose of avoiding collision with it, it is as lifeless as a block
of marble and realizing that it is animate because we know that it is grown and is still growing.

Thus, each theory is correct from its point of view. It is a question of approach and looking
at the things from a certain angle.

Objectives of Tort:

1. Compensation: The most obvious objective of tort is to provide a channel for compensating
victims of injury and loss.

2. Protection of Interest: The law of torts protects a person’s interest in land and other property
in his or her property, reputation and his or her bodily integrity.

3. Vindication: Tort provides the means whereby a person who regards him or herself as
innocent in a dispute can be vindicated by declared publicly to be in the right by a court.
 4. Deterrence: it has been suggested that the rules of tort have a deterrent effect encouraging
people to take fewer risks and to conduct their activities more careful, mindful of their
possible effects on other people and their property.

Relevancy of Motive in Law of Torts:

Motive and malice are two distinct words used differently in the law of torts. Motive means
ulterior or inner drive which signifies the reason for a man’s conduct. When an act is done with a
bad intention then it is called malice. Intention signifies full advertence in the mind of the
defendant to his conduct, which is in question, and to its consequences, together with desire for
those consequences. Malice for a lay man or common acceptance means ill-will against a person
but in its legal sense a wrongful act, done intentionally without just cause or excuse. When we take
the meaning of malice in its ordinary sense, such as, ill-will spite or hatred, then we call it as malice
in fact. Malice in law means a wrongful act done intentionally without just cause or excuse. Thus,
malice in law is implied in every case where a person has inflicted injury upon another in
contravention of the law, without just cause or excuse. Malice in fact is generally relevant in the
torts of defamation on a privileged occasion, malicious prosecution, injurious falsehood, deceit
and conspiracy. Thus, malice in fact is not entirely irrelevant in the law of torts. Motives on the
other hand generally irrelevant in law of torts and this irrelevancy of motive was affirmed by the
House of Lords in Bradford Corporation v. Pickle Case16. The same rule was followed in India
and the best illustrations to this is the case of Nanker v. Ah Fong17, where it was observed (AIR
1935 Rang.73.) by the court that the motive of the person doing the act is immaterial.

Refer

V.M Joshi v. TLH Smith Pearse AIR 1949 Nag. 362

Mz Rahim v. SN Mukhopadhyaya AIR 1934 Cerl. 752

The rule in Pickle case is not very satisfactory as far as Indian situation is concerned. It
would mean that in Indian law which follows English common law, greed, ill-will and spitefulness
are permitted to reign supreme. On this point our law is unsatisfactory as compared to civil law

16 (1895) AC 587 HL
17 (1934) 13 Rang 175
system in several European states. For e.g. In India there is nothing to prevent a man from
capriciously setting fire to his own oil well or cornfield or blocking up his neighbors’ prospect by
a spite fence etc, which does not happen to fall within some definite tort or crime. So, some kind
of necessary change is needed in India by applying the pickles rules.

Suggested References:

1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London. [
Chapter’s 1,3]

2. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts, 20th Edn- 1992,
Universal Law Publishers, Delhi. [ Chapter 2]

3. SP Singh & Indrajith Singh, Law of Torts, 4th Edn – 2006, Universal Law Publishers, Delhi.
[ Chapter’s 1-4]

4. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapter’s 1,2]

5. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapter 1]

6. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur. [Chapter 1, 2]
MODULE II

DEFENCES

When the plaintiff brings an action against the defendant for a particular tort providing the
existence of all essentials of that tort, the defendant would be liable for the same. The defendant
may however even in such a case avoid his liability by taking the plea of some defence.
The judgment of Blackburn J, approved by the House of Lords in RVF itself recognized that the
liability is not absolute being subject to certain exceptions. Blackburn J made it a part of the rule
that he (the defendant) can excuse himself by showing that the escape was the consequence of vis
major or the act of god. In the light of that passage a person is not liable if the damage is owing to
the following causes.

1. Volenti non-fit injuria:

No injury is done to one who consents. This maxim had its origin in the process by which Roman
law validated the act of a free citizen selling himself into slavery. In the case plaintiff voluntarily
agrees to suffer some harm he is not allowed to complain for that and his consent serves as a good
defence against him. No men 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 that acts.
Similarly, no action for defamation can be brought by a person who agrees to the publication of a
matter defamatory of himself.

For the defence of consent to be available, the act causing the harm must not go beyond the limit
of what has been consented. For e.g. a player in a game of hockey has no right of action if he is hit
while the game is being lawfully played. But if there is a deliberate injury caused by another player,
the defence of volenti non-fit injuria cannot be pleaded.

Consent to suffer harm may be express or implied. In Hall v. Brookland Auto Racing Club 18, the
plaintiff was a spectator at a motor car race being held at Brookland on a track owned by the
defendant. 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 being inherent in the sport which any spectator could foresee the defendant
was not liable.

In another case while the driver was taking the jeep for filling petrol in the tank, two strangers took
lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling
the jeep. The two strangers were thrown out and sustained injury and one of them died as a result
of it. It was held that neither the driver nor the owner of the vehicle could be made liable because
the strangers had voluntarily got into the jeep and as such the principle of volenti non fit injuria
was applicable to this case. So held in Padmavati v. Duggainaka19

The consent must be free: 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 was

18 (1933) 1 KB 205

19 (1975)1 Kan.LJ 93
obtained by fraud or under the compulsion or under some mistaken impression such consent does
not serve as a good defence. The mere knowledge of risk does not imply assent. For the application
of this defence the following two points must be proved: 1. the plaintiff known that the risk is there
2. He knowing the same agreed to suffer the harm. If only first of these points present i.e. There is
only the knowledge of the risk, it is no defence before the maxim volenti non-fit injuria. This
means mere knowledge of risk is not sufficient to apply this maxim.

Exceptions: The maxim cannot apply a) where there is no express or implied consent b) where
there is a consent for an illegal act e.g. Boxing with bare fists c) where the consent is not free and
full d) where the consent given is to make a breach of a statutory duty e) where there is a scientier
only no volens f) where the defendant is himself negligent or undertakes unnecessary risks

g) Rescue cases: when the plaintiff voluntarily encounters a risk to rescue somebody from an
imminent danger created by the wrongful act of the defendant he cannot be met with the defence
of volenti no fit injuria. For e.g. in Haynes v. Harwood, defendants servant left a two horse van
unattended in attended in a street. A boy throws a stone on the horses and they bolted causing
grave danger to a women and children on the road. A police constable who was on duty inside a
nearby police station on seeing the same managed to stop the horses but in doing so he himself
suffered some personal injuries. It being a rescue case court rejected the defence of consent.

2. ACT GOD

Act of god in common parlance means any act of nature for example wind, frost, flood, rainfall
etc. But in law it means an unprecedented or extraordinary act of nature which cannot reasonably
be expected or anticipated. According to Pollock it is an operation of natural forces so unexpected
that no human foresight of skill could reasonably be expected to anticipate it. For e.g. during a
storm in Calcutta a cinema advertising board fell down from the defendants premises and injured
the plaintiff. The defendant contended that the fall of the banner was caused by a storm of unusual
severity. It was however found that such storms of considerable severity usually come in the town
of Calcutta during the monsoon season. Thus the Calcutta High Court held that such a storm cannot
be said to be so unexpected that no human foresight could reasonably be expected to anticipate it
and cannot be regarded as vis major or act of god. So the defendants held liable. The case in point
is MN Mukherjee v. Mathurdas Chaturbhuj20.

Since act of god is a good defence for non-liability, it is necessary that such an event could not
have been prevented by reasonable care on the part of the defendant. In other words before an act
of god can be admitted as an excuse, the defendant must himself have done all that was bound to
do. In Lallu v, Fazl Haq21, the defendant allowed rainwater to collect in the materials and debris
of his fallen house which caused injury to an adjoining wall. It was held by the court that the failure
of the defendant to take care that the rain water did not collect in such a way as to damage the wall
of their neighbor was responsible for the damage suffered by the plaintiff.

3. INEVITABLE ACCIDENT

An inevitable accident or unavoidable accident is that which could not possibly be prevented by
the exercise of ordinary care, caution and skill. As observed by Green Mr. an accident is one out
of the ordinary course of things something so unusual as not to be looked for by a person of
ordinary prudence. If a man carries fire arms or drives a horse his duty is merely to use reasonable
care not to do harm to others thereby and notwithstanding the use of such care accident happens
he may plead that it was due to inevitable accident. For e.g. In Stanly v. Powell, the plaintiff and
the defendant who were members of a shooting party went for pheasant shooting. The defendant
fired at a pheasant but the shot from his gun glanced off an oak tree and injured the plaintiff. It
was held that the injury was accidental and defendant was not liable.

In Nitro - Glycerine case22, the defendants a firm of carriers were given a wooden case for being
carried from one place to another. The contents of the box were not known. Finding some leakage
in box the defendants took the box to their office building to examine. While the box was being
opened the nitro-glycerine in the box exploded and the office building belonging to the plaintiff

20 (1945) 80 CLJ 90

21 AIR 1919 Oudh 121

22 (1872) 15 Wallace 524

was damaged. It was held that since the defendants could not reasonably suspect that the box
contained nitro-glycerin they were not liable for the damage caused by the accident.

All the cases of inevitable accident may be divided into two category a) those which are occasioned
by the elementary forces of nature unconnected with the agency of man or other cause and b) those
which have their origin either in the whole or in part in the agency of man, whether in acts of
commission or omission, no feasance or of misfeasance or in any other causes independent of the
agency of natural forces. The term act of god is applicable to the former class.

4. NECESSITY

An act causing damage, if done under necessity to prevent a greater evil is not actionable even
though harm was caused intentionally. For e.g. throwing goods overboard a ship to lightens it for
saving the ship or persons on board the ship or pulling down a house to stop a further spreading of
fire. In Leigh v. Gladstone23, forcible feeding of a hunger striking prisoner to save her life was held
t be a good defense to an action for battery. In Cope v. Sharpe24, the defendant entered the plaintiffs
land to prevent spread of fire to the adjoining land over which the defendants master had shooting
rights. It was held that defense of necessity is available so the defendant is not liable.

5. PRIVATE DEFENCE

It is human instinct to repel force by force and this natural instinct has got judicial as well as
statutory recognition. The law permits use of reasonable force to protect one’s person or property.
If the defendant uses the force which is necessary for self-defense he will not be liable for the harm
caused thereby. The use of force is justified only for the purpose of defense. What is reasonable
force depending on the facts and circumstances of each case. The underlying test is that the force
is used is not reasonable if it either a) not in proportion to the apparent urgency of the situation or
b) there is no necessity for the use of force. E.g. A would not be justified in using force against B
merely because he thinks that B would attack him someday nor can the force be justified by way
of retaliation after the attack already over. According to Pollock, Winfield and Clerk and Lindsell,

23 (1909) 26 TCR 139

24 (1891) 1 KB 496
the right of private defense for the protection of person can be extended to the protection of his
spouse, family members and sometimes to his servants also.

Every person is entitled to protect his property whether movable or immovable and can use
reasonable force in such protection. But a person will be liable if he uses unreasonable force or
takes unreasonable measures in protecting his property. For e.g. In Bird v. Holbrook25, the
defendant had put up spring guns in his garden without fixing any notice about the same and a
trespasser was seriously injured by its automatic discharge. It was held that the plaintiff was
entitled to recover compensation as the force used here was greater than that the occasion
demanded. Similarly, in Ramanuja M v. M. Gangan26, the defendant, a land owner had laid some
live electric wire on his land, the plaintiff while go through this land received a shock and sustained
injuries. The defendant had given no visible warning about such wire. He was therefore held liable
for the injuries caused to the plaintiff.

6. WRONGFUL ACT OF A THIRD PARTY

A landlord using his premises in an ordinary and proper manner is bound to exercise all reasonable
care but he is not, responsible for damage not due to his own default. Whether that damage be
caused by inevitable accident or wrongful act of third persons.

Where the reservoir of the defendant was caused to overflow by a third party sending a great
quantity of water down the drain which slipped it, and damage was done to the plaintiff, it was
held that the defendant was not liable. The case in point is Box v. Jubb27.

7. PLAINTIFFS OWN DEFAULT

It is a valid defence that the escape was due wholly or partly to the claimants fault. In Ponting v.
Noakes28, the plaintiff’s horse had died when it had reached over the fence and eaten leaves from

25 (1828) Bing 628

26 AIR 1984 Mad. 103

27 (1879) 4 Ex D 76

28 (1894) 2 QB 281
a poisonous tree on the defendants land. The defendant was held not liable when the harm suffered
was due to the horses own conduct.

8. STATUTORY AUTHORITY
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. 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. Immunity under statutory authority is not
only for those harm which is obvious, but also be some incidental to the exercise of such authority.
Therefore, if a railway line is constructed there may be interference with private land. When the
trains are run, there may also be some incidental harm due to noise, vibrations, smoke etc. no
action can lie either for interference with the land or for incidental harm except for payment of
such compensation which the Act itself may have provided. The statutes may give absolute or
conditional authority for the doing of an act. In the former case, even though nuisance or some
other harm necessarily results, there is no liability for the same. When the authority given by the
Statute is conditional, it means that the act authorized can be done provided the same is possible
without causing nuisance or some other harm. Such a condition may be express or implied.

In Green v. Chelsea Waterworks Co29., the defendants who were under a statutory duty to
maintain a continuous supply of water were not liable in the absence of negligence the water main
burst damaging the plaintiffs premises, horse and stock.

9. JUDICIAL OR QUASI JUDICIAL ACTS

When a judge or administrator of a quasi-judicial authority acts within jurisdiction no action lies
for acts done or words spoken by a judge in the exercise of his judicial office, although his motive

29 (1894) 70 LT 547
is malicious and the acts or words are not done or spoken in the honest excercise of his office. The
same rule was also following in India. See Girijashanker v. Goplji30

10. MISTAKE

Mistake is not a valid defence in law of tort. It was explained in the case of Biharilal Kunjilal v.
Angirabai31

Suggested References:

1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London. [
Chapter 25]

2. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts, 20th Edn- 1992,
Universal Law Publishers, Delhi. [ Chapter 22]

3. Vivienne Harpwood, Principles of Tort Law, 4th Edn- 2000, Cavendish Publishing Limited,
London. [ Chapter 20]

4. SP Singh & Indrajith Singh, Law of Torts, 4th Edn – 2006, Universal Law Publishers, Delhi.
[ Chapter 5]

5. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapter 5]

6. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapter’s
2,12]

7. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur.
[Chapter 5]

30 ILR 1906 Bom. 241

31 AIR 1948 Nag.118

LIABILITY

There are situation when a person may be liable for some harm even though he is not negligent in
causing the same or there is no intention to cause the harm or sometimes he may even have made
some positive efforts to avert the same. It other words sometimes the law recognizes No-Fault
liability. There are two important branch of non- fault liability in law of torts:

1. The rule in Rylands v. Fletcher i.e. Rule of strict Liability and

2. Rule in MC Mehta v. Union of India i.e. the rule of Absolute Liability.

THE RULE IN RYLANDS V. FLETCHER

This rule was formulated by Blackburn I, in Fletcher v. Rylands (1866) and approved by the House
of Lords in 1868 in Rylands v. Fletcher. Originally it was established as a part of a nuisance but
now it attained the status of a distinctive branch of tortious liability. This rule is based on the
maxim sic utero tuo ut alienum no leadas which means so use your own property as not to injure
the property of your neighbor.

In this case defendant was a mill owner who had employed independent contractors to build a
reservoir on his land to provide water for his mill. During the course of building the contractors
discovered some old shafts and passages of an abandoned coalmine on the defendant’s land which
appeared to be blocked. When the reservoir was filled the water burst through the old shafts, which
were subsequently found to connect with the plaintiffs mine. As a result the plaintiffs mine was
flooded and he sought compensation.

Although the contractors had clearly been negligent in failing to ensure that the mine shafts were
blocked off securely, the plaintiff action was against the mill owners. The mill owner had not been
shown to be negligent. The plaintiff also faced the added obstacle that the courts had severe doubts
whether an isolated escape as opposed to a continues state of affairs, could found an action
succeeding. The case was finally resolved at House of Lords level, but the classic statement of
principle was given by Blackburn J in the court Exchequer Chamber, ‘we think that the true rule
of law is that the person who for his own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes must keep it in at his peril and if he does not do so is
prima facie answerable for all the damage which is the natural consequence of its escape’. This
may be regarded as the rule in Rylands v. Fletcher.

According to the rule if a person brings on his land and keeps there any dangerous thing i.e. a thing
which is likely to do mischief if it escapes, he will be prima facie answerable for the damage caused
by its escape even though he had not been negligent in keeping it there. The liability arises not
because there was any fault or negligence on the part of a person but because he kept some
dangerous thing on his land and the same has escaped from there and caused damage. Since in
such a case the liability arises even without any negligence on the part of the defendant it is known
as the rule of strict liability.

To the above rule laid by Blackburn J, another important qualification was made by the House of
Lords when the case came before them. It was held that for the liability under the rule, the use of
land should be non-natural as was the position of in Ryland’s v. Fletcher itself and that the thing
must have been brought on the land which was not naturally there.

Thus, for the application of the rule the following essentials should be there:

1. Some dangerous thing must have been brought by a person on his land:

According to this rule the liability for the escape of a thing from one’s land arises provided the
thing collected was a dangerous thing i.e. a thing likely to do mischief if it escapes. Thus, if a
person collects a non-dangerous thing the rule of strict liability has no application. In Rylands v.
Fletcher the thing so collected was a large body of water. This rule is applicable to gas, electricity,
oil, noxious fumes, vibrations, poisonous vegetation, rusty wires etc.

2. Escape of the thing

The rule in Rylands v. Fletcher will be applicable only if the thing causing the damage escapes to
the area outside the occupation and control of the defendant. In Read v. Lyins32, an inspector of
munitions had been injured by an explosion of a shell whilst inspecting the defendant’s munitions
factory. The court held that there had not been an escape within the rule. An escape would only

3232 (1947) 63 LQR 159

occur when the object moved from the defendants premises to a place which was outside his
occupation or control.

In Crowhurst v. Amersham Burial Board33, the branches of a poisonous tree in the defendants
land over hanged to the neighbors’ land and the plaintiffs cattle ate the leaves of the same and
poisoned. The defendant was held liable for the escape of dangerous thing.

In Ponting v. Noakes34 the plaintiff’s horse intruded over the boundary and nibbed the leaves of
poisonous tree in the defendants land. The court held there is no escape of dangerous thing.

See

N. Narayana Bhattathiripad v. Travancore Govt. AIR 1956 Tra-Co 225

3. It must be a non- natural use of the land:

The rule in Rylands v. Fletcher will be applicable only when the defendant uses the land for non-
natural purpose. The term non-natural use of land was defined by Lord Moulton in Richards v.
Lothian35 reads as; it is not every use to which land is put that brings into play the RVF principle.
It must be some special use bringing with it increased danger to others and must not merely be the
ordinary use of the land as such a use as is proper for the general benefit of the community.

In Bolton v. Stone36, playing cricket on land was held to be a natural use of land. In this case the
plaintiff while standing outside her house was hit by the cricket ball and sustained injury.

In Noble v. Harrison37, it has been held that non-poisonous trees on ones land are not non-natural
use of land. But in Crowhurst case it was held that the growing of a poisonous tree was a non –
natural use of land.

33 (1878) 4 EXDS

34 (1894) 2 QB 281

35 1913 AC 263

36 1951 AC 85

37 (1926) 2 KB 332
In TC Balakrishna Menon v. TR Subramanian38, it was held that the use of explosives in a
maiden ground even on a day of festival is a non-natural use of land.

4. Foreseeability of damage of the relevant type:

In Cambridge Water Co. v. Eastern Counties Lather plc39 case House of Lords held that the rule
was inapplicable unless it could be foreseen that damage of the relevant type would occur as the
result of an escape. Thus if the possibility of the damage which occurs is scientifically unknown
at the time when the escape takes place there is no liability. In this case the defendants had used a
chemical called Perchloroethane (PCE) for degreasing pelts in their tannery. There were regular
spillages which gradually seeped into and built up under the land. The chemical seepage was such
that it contaminated the plaintiff’s water supply 1.3 miles away and forcing them to find another
source. So the plaintiff filed an action under the rule in Rylands v. Fletcher. The House of Lords
held that the defendants were not liable. It was not foreseeable to a skilled person that such
quantities of chemical would cause damage to the plaintiff’s water and froseeability of damage
was a requirement of liability under the rule in Rylands v. Fletcher.

VICARIOUS LIABILITY

It is the expression signifies a liability incurred by A to C for B’s conduct or acts. According to
Jowitt Dictionary of English Law, ‘when the law holds one person responsible for the misconduct
of another although he is himself free from personal blameworthiness or fault we speak of
vicarious liability’. Basically, the idea was that a person should be held responsible for his own
fault. This was also asserted by Plato in his laws that a person should be held responsible for his
own sins. But in England after the Norman Conquest it was firmly established in the 13th century

38 AIR 1968 Ker 151

39 (1994) 2 AC 264
that master would be liable for his servants or slaves’ torts only where there is an express command
of the master to the servants wrong.

In 17th century this limited form of liability was found inadequate due to rise in commercial
transactions. Consequently, a new development took place in 1697 when Sir John Holt in the case
Tuberville v. Stamp40, held that the master would be liable for his servant’s tort if he had given his
implied command.

Basis and Rationale of Vicarious Liability.

Two Latin maxims closely related to the principle of vicarious liability are respondent superior
and qui facit per alium facit perse. The first maxim means that a principal must answer for the acts
of his subordinates and the second explains that he who employs another person to do something
does it himself or in other words he who acts through another is deemed to act in person. These
maxims form the basis of vicarious liability.

One of the unusual features of the doctrine of vicarious liability is that whilst there is general
agreement as to the utility of the doctrine, the doctrine has no clear rationale. Some of them are:

1. The employer has control over his employee therefore he is responsible for the acts of his
employee.
2. The employer was careless in selecting an employee who was negligent and he must have
accepted responsibility because by selecting a negligent employee he set in motion the train
of events which led to the negligent act of the employee.
3. The employer derives benefit from service of his employee, so it is only right that he takes
the burden as well.
4. The employer is in a better position than the employee to compensate the victim of the tort.
5. By imposing liability on the employer, the employer is thereby given an incentive to ensure
that the event does not occur again and that none of his other employee do the same thing.

There are two occasions when a person is held responsible for wrongs committed by others:

40 (1669) 1 Mad 3
1. By Ratification: Ratification is the act adopting a transaction by a person who was not bound
by it originally because it was entered into an unauthorized agent. It is an act of confirmation.

2. By Relationship:

Master and Servant: The vicarious liability of master for the tort committed by his servant is
based on the maxim Respondent Superior which means superior is liable or let the master be liable.
A servant is any person employed by another to do work for him on the terms that he, the servant,
is subject to control and directions of his employer in respect of the manner in which his work is
to be done. In other words an employee is a servant if his superior is in a position to tell him not
only what to do but how to do. Two main tests to find out master servant relationship are: a) right
to control test and b) organization test. Organization test look the relationship between the
organization and employee for e.g. hospital and doctors. As per this test hospital authorities are
not liable for the professional negligence of doctor. This rule was held ineffective in the case of
Achut Rao v. State of MH 41 the court held that the hospital is also liable for the negligent conduct
of a doctor.

A master may lend his servant to a third party temporarily for some particular work. There are two
masters the lender and hirer, the question is who is liable for the act of his servant. Normally the
lender but if he succeeded in proving at the time of commission of tort the servant was under
control of hirer then he can easily escape from the liability.

Course of employment: The fact that one man is in a legal sense the servant of another does not
in itself render the master liable for any and every tort committed by this servant. The master will
only liable for such torts as are committed by the servant in the course of employment. An act is
deemed to be done in the course of employment when the servant executes the orders of master. It
may be a) the master has ordered the servant to commit a wrongful act b) the wrong may be due
to the servants want of care in carrying out the orders of the master. So a master can be made liable
as much for unauthorized acts for the acts he has authorized. The reason is that explained in
Barwick v. English Joint Stock Bank42, ‘in all these cases it may be said that the master has not

41 AIR 1996 SC 2377

42 (1867) 2 Exch 259
authorized the act. It is true he has not authorized the particular act but he has put the agent in his
place to do that class of acts and he must be answerable for the manner in which the agent has
conducted himself in doing the business which it was the act of the master to place to him in’.

Generally, it is very difficult to know whether the act done by the servant is an unauthorized act
and thus outside the course of employment or his conduct is merely an unauthorized mode of doing
an authorized act and thus falling within the course of employment. No single rule has been
possible to determine the same.

When a servant while in the course of the performance of his duties as such commits a fraud, the
master would be liable for the same. In Barwick v. English Joint Stock Bank43 case it was held that
it is a settled and undisputed principle of the law of torts that master is answerable for every such
wrong for his servant as is committed in the course of employment, though no express command
or privity of the master be proved and the wrongful act may not be for the master’s benefit.

In Loyd v. Grace Smith & co44., the House of Lords held that when a servant is acting in the course
of the business the master will be liable even though the servant was acting for his own benefit
rather than the benefit of the master.

In Morries v. CW45, it was held that if the servant committed a theft of a third person’s property
which has been bailed to the master, the master could be vicariously made liable for the same.

Where a servant having a lawful authority to do some act on behalf of his master makes an
erroneous or excessive use of the authority causing loss to the plaintiff, the master will be liable
for the same. So, held in Poland v. Parr & Sons 46

43 Ibid.

44 1912 AC 716

45 (1965) 2 All ER 725

46 (1927) 1 KB 236
The doctrine of Common Employment: The above rule was first applied in 1837 in Priestly v.
Flower47 developed in 1850 in Hutchinson v. York, New Castle and Berwick Rail co48. The doctrine
was that a master was not liable for the negligent harm done by one servant to another fellow
servant acting in the course of their common employment. In Priestly v. Flower, the plaintiff who
was the defendant’s servant was injured at his thigh due to breaking down of an overloaded
carriage in the charge of another servant of the defendant. Since both the wrongdoer and the injured
person were the servants of the same master, the doctrine of common employment was applicable
and the master was held not liable.

The doctrine was subject to great criticism and therefore it was abolished by the Law Reform
(Personal Injuries) Act, 1948 in England. This doctrine of common employment which was
abolished in England is still applicable in India although its scope has been made limited by the
Employers Liability Act, 1939; The Workmen’s Compensation Act, 1923; The Employees State
Insurance Act, 1948 and Personal Injuries (Compensation Insurance) Act, 1963. These Acts
impose liability on the employers to compensate their employees in certain cases. Although the
rigor of this doctrine has been minimized to a certain extent by these statutes but it is submitted
that the position in India in this regard is unsatisfactory.

ABSOLUTE LIABILITY

A more stringent rule of strict liability than the rule in Rylands v. Fletcher was laid down by the
Supreme Court in the case of MC Mehta v. Union of India. The case related to the harm caused by
escape of oleum gas from one of the units of shriram foods and fertilizers. The court held that the
rule of Rylands v. Fletcher which was evolved in the 19th century did not fully meet the need of a
modern industrial society with highly developed scientific knowledge and technology where
hazardous or inherently dangerous industries were necessary to be carried on a part of the
development programme and that it was necessary to lay down a new rule not yet recognized by
English law to adequately deal with the problems arising in a highly industrialized economy.

47 (1837) 3 M & W 1

4848 (1850) 5 Exch 843

The court laid down the rule as follows: where an enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone on account of an accident in the operation of such
hazardous or inherently dangerous activity resulting, for e.g. in escape of toxic gas, the enterprise
is strictly and absolutely liable to compensate all those who are affected by the accident and such
liability is not subject to any of the exceptions which operate vis-a –vis the tortious principle of
strict liability under the rule in Rylands v. Fletcher .

The court gave two reasons justifying the rule:

Firstly the enterprise carrying on such hazardous and inherently dangerous activity for private
profits has a social obligation to compensate those suffering there from and it should absorb such
loss an item of overheads and secondly the enterprise alone has the resources to discover and guard
against such hazardous and dangers. The court also laid down that the measure of compensation
payable should be correlated to the magnitude and capacity of the enterprise so that the same can
have deterrent effect.

Differences between the Rule in Rylands v. Fletcher and Rule in MC Mehta Case:

1. Only those enterprise will be liable which are engaged in hazardous or inherently
dangerous activity, this would mean that those not falling under the category of such
enterprises will be outside the ambit of the rule where the in Rylands v. Fletcher will be
still applicable
2. The escape of a dangerous thing from ones land to another is not necessary, this means that
the rule will not only apply to those injured persons who are outside the premises but also
to those who are inside.
3. The rule does not contain any exceptions
 4. The quantum of damages depends upon the magnitude and financial capability of the
defendant’s enterprise.

This rule in MC Mehta case or absolute liability principle was followed in various cases such as:

Charan Lal Sahu v. Unoin of India AIR 1990 SC 1480

IndianCouncil for Enviornment Legal Action v. Union of India AIR 1996 SC 1446
Klans Mittelbachert v. East India Hotels Ltd,AIR 1997 Dej. 201
MP EB v. Shail Kumai JT 2002(1) SC 50

Bhopal Gas Leak Disaster Case

On the night of December 2, 1984 an unprecedented disaster was caused by the leakage of MIC, a
highly toxic gas from the plant of the Union Carbide in Bhopal which resulted in the death of over
2500 persons and injuries, mostly serious and permanent to more than 2 lakhs persons, mostly
belonging to lower economic strata. The Government of India passed the Bhopal Gas Leak
Disaster (Processing of claims) Act, 1985, conferring exclusive right on the government to
represent the gas victims for claiming compensation. The Union of India filed a suit against the
UGC in the US District court of New York but the same was dismissed on the ground that the
Indian Courts are the more convenient and proper forum for such an action.

The government then filed a suit for compensation in the District Court of Bhopal which ordered
that the UGC should pay an interim relief of Rs. 350 crores to the gas victim. On a civil revision
petition filed by the UGC the Madhya Pradesh High Court reduced the amount of interim relief
payable to Rs 250 crore. Both the parties preferred separate appeals before the Supreme Court
against the said decision. After a long drawn litigation for over 4 years there was a settlement
between the Union of India and UGC in terms thereof the Supreme court in UGC v. Union of India
passed order on February 14 and 15, 1989 directing the payment of a sum of 470 million US dollar
or its equivalent nearly 750 cores.
The settlement provoked criticism from various jurists, lawyers and environmentalists on the
judgment seems to have been passed behind the backs of the victims. Some victims of the disaster
then filed review petition in the Supreme Court challenging the order, and in 1991 the Supreme
Court upheld the validity of the said settlement.

VICARIOUS LIABILITY OF STATE

At common law the king could not be sued in earlier, either for the wrong actually authorized by
it or committed by its servants in their course of employment. With the increase in the functions
of the state the Crown became one of the largest employers of the labour in the country. Under
these circumstances, the rule of immunity for the Crown became highly incompatible with the
demands of justice. Thus the position was changed by the Crown Proceedings Act, 1947. Now the
Crown is also vicariously liable.

In India Article 294 of the Indian Constitution speaks about the liability of the State and Central
Government. The art. 294 provides the liability may arise out of any contract or otherwise. The
word otherwise suggests that the said liability may arise in respect of tortious acts also. Article 300
provides that the liability of the Union of India or any State will be the same as that of the Dominion
of India and the provinces before the commencement of the Constitution.

If we examine the liability of the Dominion and the provinces before the commencement of the
Constitution, we could see that there the state functions were divided into two categories namely
Sovereign and Non-sovereign functions. If the plaintiff suffers injury from the sovereign function
of the government he has no remedy in tort against the government. Whereas if the function is
non- sovereign he has a remedy in tort.

It was so held in P&O Steam Navigation Co. v. Secretary of State 49, in this case a servant of the
plaintiff company was talking a horse driven carriage belonging to the company. While the
carriage was passing near the government dock yard, certain workmen employed by the
government negligently dropped an iron piece on the road. One of the horses was injured thereby.

49 (1861) 5 Bom. HC
Rejecting the defence of state immunity the court held that action against state was maintainable
and awarded damages.

The principle in this case has been followed in numerous cases and continues to be the law of land
even a century later. The first decision of the Supreme Court regarding the liability of state is that
of the case State of Rajasthan v. Vidyawati50. In this case the Rajasthan government was
maintained a jeep for the use of the collector of Udaipur. While it was being driven back from a
private workshop by a government driver a pedestrian was knocked down and fatally injured. The
court awarded damages to the victim. In this case the court rejected the claim of sovereign
immunity.

Three years later in Kasturi lal v. State of UP51, the Supreme Court modified its approach, it was
held that if a tortious act is committed by a public servant and it gives rise to a claim for damages
the question to ask is, was the tortious act committed by the public servant in discharge of statutory
functions which are preferable to and ultimately based on the delegation of the sovereign powers
of the state to such public servant? If the answer is in affirmative the action for damages for loss
caused by such tortious act will not lie. On the other hand if the tortious act has been committed
by a public servant in discharge of duties assigned to him not by virtue of the delegation of any
sovereign power an action for damages would lie. The course of employment is, in this category
of cases an act of the servant who might have been employed by private individuals for the same
purpose. Thus the Supreme Court in Kasturilal’s case accepted the distinction between sovereign
and non sovereign functions. The facts of this case is that one Ralia Ram, a bullion merchant and
a partner in the firm Kasturilal & Ralia Ram was arrested by a police constable and certain gold
and silver were taken from him. The police officers were required under law to keep bullion seized
in a separate box in the treasury under lock and key. Instead it was kept in the police malkhana
under the charge of a Head Constable, who misappropriated the gold ornaments and fled to
Pakistan. Ralia Ram claimed compensation for the loss caused to him by the negligence of police

50 AIR 1962 SC 933

51 AIR 1965 SC 1039

authorities of the state. The Supreme Court held that the state was not liable as police authorities
were exercising sovereign functions.

In State of MP v. Chirojila 52l, the police made lathi charge on a student’s procession and a loud
speaker, belonging to the plaintiff and being used in procession got damaged. When the owner
brought an action for damages it was held by the court that maintaining the law and order including
quelling of riot is a sovereign function. The state was held not liable.

Transporting of crushed barely for the defence department was considered a non-sovereign
function and the government was held liable for the tortious act of its servant. So held in Pushpa
v. State of JK53

Refer:

Union of India v. Sugrabhai AIR 1969 Bom.13

Satyawati v. Union of India AIR 1967 Del.98
Rooplal v. Union of India AIR 1972 JK 22
Union of India v. Abdul Rahiman AIR 1981 JK 69

Ram Gulam v. Govt. of UP AIR 19 All 206

State of MP v. Devilal AIR 1970 MP 170
State of UP v. Tulsi Ram AIR 1971 All 162
Union of India v. Savita Sharma AIR 1979 JK 6.

In spite of the suggestions made by the Supreme Court in Kasturilal case, the Parliament has not
changed the existing bad law with the result that the concerned citizens have been suffering. In
such a situation and being dissatisfied with the above anachronistic law, a new line of action under
writ jurisdiction has been invoked to render justice and compensate those whose fundamental right
to life and personal liberty under article 21 are violated by the wrongful acts of government

52 AIR 1981 MP 95

53 AIR 1977 NOC 217 (J&K)

officials while performing even sovereign functions. The cases of Rudhal Shah v. State of Bihar54,
Sebastien M.Hongary v. Union of India 55, Bhim Singh v. State of JK 56, SAHELI v. Commissioner
of Police, Delhi57, etc. illustrate that the defense of sovereign immunity is not available when there
is a violation of fundamental rights under article 21.

Thus, the present position is that sovereign immunity is subject to the fundamental rights in article
21. When there is a violation of right under art. 21 arises, there is no such defense as sovereign
function available. So, the tortious liability of the state is limited only to non-sovereign functions
regarding the sovereign functions state is liable only if there is a violation of article 21 of Indian
Constitution.

Suggested References:

1. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapter’s 4,6]

7. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapter’s
3,4]

8. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur.
[Chapter 3]

54 AIR 1983 SC 1086

55 AIR 1984 SC 1026

56 AIR 1986 SC 494

57 AIR 1990 SC 513