Class Notes on Law of Torts – Unit I (1st Sem / 3 year LL.

B)

LAW OF TORTS – UNIT I: REVISION NOTES FOR LL.B – FIRST YEAR

Introduction to the Law of Torts
The word tort is of French origin and is equivalent of the English word wrong. It is derived
from the Latin word tortum, which means twisted or crooked. It implies conduct that is
twisted or crooked. Tort is commonly used to mean a breach of duty amounting to a
civil wrong.

Salmond defines tort as 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.

A tort arises due to a person’s duty to others which is created by one law or the other. A
person who commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more
than one, they are called joint tortfeaser. Their wrongdoing is called tortuous act and they
are liable to be sued jointly and severally.

The principle aim of the Law of tort is compensation for victims or their
dependants. Grants of exemplary damages in certain cases will show that
deterrence of wrong doers is also another aim of the law of tort.

Evolution of Law of Torts in India

The law of torts in India is mainly the English law of torts which is based on the principles of
the ‘common law’. This was made suitable to the Indian conditions in accordance with the
principles of justice, equity and good conscience. However, the application of tort laws in
India is not a very regular event and one can even go to the extent of commenting that tort as
a law in India is far from being looked upon as a major branch of law and litigation. In the
Indian legal system, the concept of ‘punishment’ occupies a more prominent place than
‘compensation’ for wrongs.

It has been argued that the development of law of tort in India need not be on the same lines
as in England.

In M.C. Mehta v. Union of India, Justice Bhagwati said, “we have to evolve new principles
and lay down new norms which will adequately deal with new problems which arise in a
highly industrialized economy. We cannot allow our judicial thinking to be constructed by
reference to the law as it prevails in England or for the matter of that in any foreign country.
We are certainly prepared to receive light from whatever source it comes but we have to build
our own jurisprudence.”
Objectives of Law of Torts

 to determine the rights between parties to dispute

 to protect certain rights recognized by law
 to prevent the continuation or repetition of a harm
 to restore the property to its rightful owner

Scope of Tort
Tort & Contract

1. In a contract, the parties fix the duties themselves whereas in torts, the law fixes the
duty.
2. A contract stipulates that only the parties to the contract can sue and be sued on it
(privity of contract) while in tort, privity is not needed in order to sue or be sued.
3. In the case of contract, the duty is owed to a definite person(s) while in tort, the duty is
owed to the community at large i.e. duty in- rem.
4. In contract remedy may be in the form of liquidated or unliquidated damages whereas
in tort, remedies are always unliquidated.

Tort & Crime

1. In tort, the action is brought in the court by the injured party to obtain compensation
whereas in crime, proceedings are conducted by the state.
2. The aim of litigation in torts is to compensate the injured party while in crime; the
offender is punished by the state in the interest of the society.
3. A tort is an infringement of the civil rights belonging to individuals while a crime is a
breach of public rights and duties, which affect the whole community.
4. Parties involved in criminal cases are the Prosecution verses the Accused person while in
Torts, the parties are the Plaintiff versus the Defendant.

Constituents of Tort
The law of tort is an instrument to enforce reasonable behavior and respect the rights and
interests of one another. A protected interest gives rise to a legal right, which in turn gives
rise to a corresponding legal duty. An act, which infringes a legal right, is wrongful act but
not every wrongful act is a tort.

To constitute a tort or civil injury therefore:

1. There must be a wrongful act or omission.

2. The wrongful act or omission must give rise to legal damage or actual damage and;
3. The wrongful act must be of such a nature as to give rise to a legal remedy in the form of
an action for damages.

The wrongful act or omission may however not necessarily cause actual damage to the
plaintiff in order to be actionable. Certain civil wrongs are actionable even though no damage
may have been suffered by the plaintiff.
01. Wrongful Act

An act or omission that prejudicially affect one’s legal right. Such legally violative wrongful
act is called as actus reus. Thus, liability for a tort arises when the wrongful act amounts to
either an infringement of a legal private right or a breach.

An act, which at first, appears to be innocent may become tortuous if it invades the legal right
of another person e.g. the erection in one’s own land which obstructs light to a neighbors’
house. Liability for a tort arises when the wrongful act amounts to an infringement of a legal
right or a breach.

02. Damage

The sum of money awarded by court to compensate damage is called damages. Damage
means the loss or harm caused or presumed to be suffered by a person as a result of some
wrongful act of another. Legal damage is not the same as actual damage.

The real significance of legal damage is illustrated by two maxims namely:

Injuria sine damno and Damnum sine injuria

Injuria sine damno (Injury without damage)

It means violating of a legal right without causing any harm, loss or damage to the plaintiff.
There are two kinds of torts: firstly those torts which are actionable per se, i.e. actionable
without the proof of any damage or loss. For instance, trespass to land, is actionable even
though no damage has been caused as a result of the trespass.

Secondly, the torts which are actionable only on the proof of some damage caused by an act.
For successful actions the only thing which has to be proved is that the plaintiff’s legal right
has been violated, i.e. there is injuria.

Case Law: Refusal to register a voter was held as and injury per-se even when the favorite
candidate won the election – Ashby Vs. White (1703). This rule is based on the old maxim
of law, Ubi jus ibi remedium, which means that where there is a right, there is a remedy.

Damnum sine injuria (Damage without injury)

It means “There may be an injury inflicted without any act of injustice.” There is another
term like it that is “damnum absque injuria“, which means damage or harm without an
injury in the legal sense. In other words a loss or injury to someone which does not give that
person a right to sue the person causing the loss.

Case Laws:
In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles was annoyed by
the refusal of Bradford Corporation to purchase his land for their water undertaking. Out of
spite, he sank a shaft on his land, which had the effect of discoloring and diminishing the
water of the Corporation, which percolated through his land. The House of Lords held that
the action of Pickles was lawful and no matter how ill his motive might be he had a right to
act on his land in any manner that so pleases him.

In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship owners combined
together. In order to drive a ship-owner out of trade by offering cheap freight charges to
customers who would deal with them. The plaintiff who was driven out of business sued the
ship-owner, for loss caused to him by their act. The court held that a trader who is ruined by
legitimate competition of his rivals could not get damages in tort.

03. Remedy – Development of Ubi jus ibi Remedium

The law of torts is said to be a development of the maxim ubi jus ibi remedium (there is no
wrong without a remedy). Whenever the common law gives a right or prohibits an injury, it
also gives a remedy. It is an elementary maxim of equity jurisprudence that there is no wrong
without a remedy.

The maxim means only that legal wrong and legal remedy are correlative terms.

A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under
the category of wrongs for which the remedy is a civil action for damages. The essential
remedy for a tort is an action for damages, but there are other remedies also e.g., injunction,
restitution, etc.

Case Law:

In the case of Abbot v. Sullivan, the court held that there is a right to receive a time-barred
debt but there is no remedy to recover it.

Foundations of Tortious Liability

Tortious liability arises from the breach of a duty primarily fixed by the law: such duty is
towards persons generally and its breach is compensated by an action for unliquidated
damages.

• Theory 1: By Winfield – Law of Tort – General Liability: all injuries done to another
person are torts, unless there be some justification recognized by the law

• Theory 2: By Salmonds – Pigeon Theory – Law of Torts: there is a definite number of

torts (assault, battery, defamation) outside which liability in tort does not exist

Case Law:
Rougher, J., described in the case of John Munroe (Acrylics) Ltd. v. London Fire and
Civil Defence Authority, “It is truism to say that we live in the age of compensation. There
seems to be a growing belief that every misforture must, in pecuniary terms at any rate, be
laid at someone else’s door, and after every mishap, the cupped palms are outstretched for the
solace of monetary compensation.”

General Elements of Torts

Act & Omission
To constitute a tort, there must be a wrongful act. The word “act” is used to include both
positive and negative acts i.e., acts and omissions. Wrongful acts which make a person liable
in tort are positive acts and sometimes omissions. They must be distinguished from natural
calamities, and even from mere thoughts and intentions.

Failure to do something in doing an act is a bad way of performing the act. For example, if a
lawyer gives an opinion without taking notice of the change in law brought about by a
reported decision of the Supreme Court, he would not be guilty of an omission but of
performing the act of giving his opinion in a bad way.

Where as an omission is failure to do an act as a whole. Generally, the law does not impose
liability for mere omissions. An omission incures liability when there is a duty to act. For
example, a person cannot be held responsible for the omission of not rescuing a stranger child
whom he sees drowning even though he can rescue him without any appreciable exertion or
risk of harm to himself. But the result would be different if a parent or guardian is failed to
attempt to rescue the child. In that case, it would be an omission as there is a duty to act.

Voluntary Acts & Involuntary Acts

A voluntary act may be distinguished from an involuntary act as only voluntary acts have
liability. Voluntary act can be understand based on its willed mascular contraction, its
circumstances and its consequences. For example, an act of murdering a person by shooting
at him is one act and not merely the muscular contraction of pressing the trigger.

An involuntary act does not give rise to any liability. For example, an involuntary act of
trespass is not a tort.

Omissions like positive acts may also be voluntary or involuntary.

In the case of Olga Tellis v. Bombay Municipal Corporation, the Supreme Court held that
the encroachments committed by those persons are involuntary acts in the sense that those
acts are compelled by inevitable circumstances and are not guided by choice.

Mental elements
A voluntary act can be held in strict liability if there’s a presence of required mental element
i.e., malice, intention, negligence or motive in addition to the other necessary ingredients of
the torts are present.
O MALICE IN LAW AND IN FACT
Malice means spite or ill-will. However, in law malice has two distinct meanings such as: 1.
Intentional doing of a wrongful act and 2. Improper motive. In the first sense, malice is
synonymous with intention and in the second sense, malice refers to any motive which the
law disapproves.

Malice with an intention of wrongful act is called as Malice in Law. It is also called
as implied malice. In a legal sense, malice means a wrongful act, done intentionally, without
just cause or excuse. For example, if a person give a perfect stranger a blow likely to
produce death, the person do it out of malice because, he do it intentionally and without just
cause or excuse.

Malice with an improper motive is called as Malice in fact. It is also called as express
malice. Malice in fact is liable for malicious prosecution.

Wrongful acts of which malice is an essential element are:

 Defamation
 Malicious prosecution
 Willful and malicious damage to property

O INTENTION, NEGLIGENCE AND RECKLESSNESS

Intention is an internal fact, something which passes in the mind and direct evidence of
which is not available. There’s a popular saying that it is common knowledge that the thought
of man shall not be tried, for the devil himself knoweth not the thought of man.

In general terms, negligence is “the failure to use ordinary care” through either an act or
omission. That is, negligence occurs when:

 somebody does not exercise the amount of care that a reasonably careful person would
use under the circumstances; or
 somebody does something that a reasonably careful person would not do under the
circumstances.

In the case of Dulieu Vs. White & Sons (1901), the plaintiff, a pregnant woman, was sitting
behind the counter of her husband?s bar when suddenly a horse was driven into the bar.
Fearing her personal safety, she suffered nervous shock and gave birth to a premature baby.
In the circumstances, the court held that the plaintiff was entitled to recover in negligence.
Recklessness is also called as gross negligence. Gross negligence means conduct or a failure
to act that is so reckless that it demonstrates a substantial lack of concern for whether an
injury will result. It is sometimes necessary to establish “gross negligence” as opposed to
“ordinary negligence” in order to overcome a legal impediment to a lawsuit. For example, a
government employee who is on the job may be immune from liability for ordinary
negligence, but may remain liable for gross negligence.
O MOTIVE
Motive is the ulterior object or purpose of doing an act. It differs from intention in two ways.
First, intention relates to the immediate objective of an act, whereas, motive refers to the
ulterior objective. Secondly, motive refers to some personal benefit of satisfaction which the
actor desires whereas intention need not be so.

For example, When A poisons B, the immediate objective is to kill B and so this is A’s
intention. The ulterior objective of A may be to secure B’s estate by inheritance or under a
will executed by him and this objective will be A’s motive. Motive is generally irrelevant in
tort.

In the case of Mayor & Co. of Bradford v. Pickles, A sank a well on his land and thereby
cut off underground water-supply from his neighbour B, and B’s well was dried up. It was
not unlawful for a land-owner to intercept on his own land underground percolating water
and prevent it from reaching the land of his neighbour. The act did not become unlawful even
though A’s motive in so doing was to coerce B to buy his land at his own price. A, therefore,
was not liable to B, however improper and malicious his motive might be.

O MALFEASANCE, MISFEASANCE, NON-FEASANCE

The term “Malfeasance” applies to the commission of an unlawful act. It is generally
applicable to those unlawful acts, such as trespass, which are actionable per se and do not
require proof of intention or motive.

The term “Misfeasance” is applicable to improper performance of some lawful act for
example when there is negligence.

The term “non-feasance” applies to the omission to perform some act when there is an
obligation to perform it. Non-feasance of gratuious undertaking does not impose liability, but
misfeasance does.

 M.C. Mehta v. Union of India

O FAULT
If mental elements such as intention, negligence, malice or motive together with an act or
omission which is violative of a right recognized by law plays an important role in creating
liability. Such tortious liability has an element of fault to support it. But there is a sphere of
tortious liability which is known as absolute or strict liability, where the element of fault is
conspicuously absent.

In the case of M.C. Mehta v. Union of India, the rule of strict liability is laid down that an
enterprise engaged in a hazardous or inherently dangerous activity is strictly and absolutely
liable for the harm resulting from the operation of such activity.
Class Notes on Law of Torts – Unit II (1st Sem / 3 year LL.B)

Study Notes on Law of Torts – UNIT II

General Defenses
Justification of Torts
O ACT OF STATE
An act of State is outside the ordinary law, it is essentially an exercise of sovereign power as
a matter of policy or political expediency. For example, when the person or the property of a
person who is not a British-subject and who is not residing in British territory is injured by an
act “done by any representative of Her Majesty’s authority, civil or military, and which is
either previously sanctioned or subsequently ratified by Her Majesty, the person injured has
no remedy for such an act is an act of State.

In the often quoted case of Buron v. Denman, the defendant, a captain in the Royal Navy,
released the slaves and set fire to the slave barracoons of the plaintiff, a Spaniard, on the
West coast of Africa, outside British dominions. The defendant originally had no authority
but his act was ratified by the Crown. It was held that the plaintiff had no remedy against
the defendant.

O JUDICIAL ACTS
The Judicial Officers Protection Act, 1850 – Under this Act, no Judge, Magistrate, Justice of
the Peace, Collector, or other person acting judicially, can be sued in any Court, for any act
done by him in the discharge of his judicial duty. Provided that such acts were done in good
faith.

O EXECUTIVE ACTS
The State and its officers are not liable when the wrongful act falls within the purview of Act
of State. The State is also vicariously liable for torts committed by its officers in the course of
employment except when they are committed while discharging traditional sovereign
functions.

 State of Rajasthan v. Prakash Chand

O VOLENTI NON FIT INJURIA – LEAVE AND LICENCE

The general rule is that a person cannot complain for harm done to him if he consented to run
the risk of it. For example a boxer, foot baler, cricketer, etc cannot seek remedy where they
are injured while in the game to which they consented to be involved. Where a defendant
pleads this defense, he is in effect saying that the plaintiff consented to the act, which he is
now complaining of. It must be proved that the plaintiff was aware of the nature and extent of
the risk involved.

In the case of Khimji Vs Tanga Mombasa Transport Co. Ltd (1962), the plaintiffs were
the personal representatives of a deceased who met his death while traveling as a passenger in
the defendant’s bus. The bus reached a place where road was flooded and it was risky to
cross. The driver was reluctant to continue the journey but some of the passengers, including
the deceased, insisted that the journey should be continued. The driver eventually yielded and
continued with some of the passengers, including the deceased. The bus got drowned together
with all the passengers aboard. The deceased’s dead body was found the following day.

It was held that the plaintiff’s action against the defendants could not be maintained because
the deceased knew the risk involved and assumed it voluntarily and so the defense of Volenti
non fit injuria rightly applied.

O ADMINISTRATIVE ACTS

 Dunlop v. Woolhara Municipal Council

O ACTS OF GOVERNING BODY

O PARENTAL & QUASI-PARENTAL AUTHORITY

 Sankunni v. Swaminatha Pattar

O AUTHORITIES OF NECESSITY

 Lamb v. Burnett

O STATUTORY AUTHORITY
When the commission of what would otherwise be a tort, is authorized by a statute the
injured person is remediless, unless so far as the legislature has thought it proper to provide
compensation to him. The statutory authority extends not merely to the act authorized by the
statute but to all inevitable consequences of that act. But the powers conferred by the
legislature should be exercised with judgment and caution so that no unnecessary damage is
done, the person must do so in good faith and must not exceed the powers granted by the
statute otherwise he will be liable.

In the Case of Vaugham Vs. Taffvale Railway Co. (1860), A railway company was
authorized by statute to run a railway, which traversed the plaintiff’s land. Sparks from the
engine set fire to the plaintiff’s woods. It was held that the railway company was not liable. It
had taken all known care to prevented emission of sparks. The running of locomotives was
statutorily authorized.

O INEVITABLE ACCIDENT
This means an accident, which cannot be prevented by the exercise of ordinary care, caution
or skill of an ordinary man. It occurs where there is no negligence on the part of the
defendant because the law of torts is based on the fault principle; an injury arising out of an
inevitable accident is not actionable in tort.
In the case of Stanley Vs. Powell (1891), the plaintiff was employed to carry cartridge for a
shooting party when they had gone pheasant-shooting. A member of the party fired at a
distance but the bullet, after hitting a tree, rebounded into the plaintiff’s eye. The plaintiff
sued. It was held that the defendant was not liable in the light of the circumstance of
inevitable accident.

O ACT OF GOD
This is also an inevitable accident caused by natural forces unconnected with human beings
e.g. earthquake, floods, thunderstorm, etc.

In the case of Nichols Vs. Marshland (1876), the defendant has a number of artificial lakes
on his land. Unprecedented rain such as had never been witnessed in living memory caused
the banks of the lakes to burst and the escaping water carried away four bridges belonging to
the plaintiff. It was held that the plaintiff’s bridges were swept by act of God and the
defendant was not liable.

O NECESSITY
Where intentional damage is done so as to prevent greater damage, the defense of necessity
can be raised. Sometimes a person may find himself in a position whereby he is forced to
interfere with rights of another person so as to prevent harm to himself or his property.

In the case of Esso Petroleum Ltd. Vs. Southport Corporation (1956), it was held that the
safety of human beings belongs to a different scale of value from the safety of property.
These two are beyond comparison and the necessity for saving life has all times been
considered, as a proper ground for inflicting such damage as may be necessary upon
another’s property.

O PRIVATE DEFENCE
Everyone has a right to defend his person, property and family from unlawful harm. A person
who is attacked does not owe his attacker a duty to escape. Everyone whose life is threatened
is entitled to defend himself and may use force in doing so. The force used must be
reasonable and proportionate to that of the attacker. Normally, no verbal provocation can
justify a blow

 Morris v. Nugent

O PLAINTIFF A WRONG DOER

 Bird v. Holbrook
 National Coal Board v. England
 Pitts v. Hunt

O ACTS CAUSING SLIGHT HARM

 Holford v. Bailey
Vicarious Liability
Liability for wrongs committed by others. Generally, a person is liable for his own wrong
doings.

Liability By Ratification

 In the course of authority

 Should be made by principal with full knowledge about the wrongful act
 illegal and unlawful acts cannot be ratified

Liability By Relationship between the two (Master & Servant)

MASTER-SERVANT: WHEN MASTER IS LIABLE

 Dharangadhara Chemical Works Ltd. v. State of Sourashtra

 Mersey Docks and Harbour Board v. Coggins & Griffith (Liver Pool) Ltd.
 Lllyod v. Grace Smith Co.
 Gregory v. Piper
 Bayley v. Manchester Rly. Co.
 Lionpus v. London General Omni Bus Co.
 Ricett v. Thas Trilling

Master-Servant: When Master is not Liable

 Williams v. Jones
 Storey v. Ashton
 Paulton v. London & S.W. Rly. Co.
 General Engg. Services Ltd. v. Kingston Cheshire