NEW LAW COLLEGE

Subject: LAW OF TORTS

AND
CONSUMER PROTECTION ACT

Topic: TORTS AGAINST PERSONS AND PERSONAL RELATIONS

Name: Sailee Vaibhav Panse

Division: C
Roll No: 236

INDEX
Sr No. Particulars
1. Introduction
2. Meaning
3. Definition
4. General Conditions of Liability of Tort
5. Tort against Personal Safety and Freedom
6. Tort against Personal Relations
7. Conclusion
8. Bibliography
 INTRODUCTION
• The Law of Torts as administered in India in the modern times, is the English Law as found suitable
to Indian Conditions and as modified by the Acts of the Indian Legislature.
• Sir Frederick Pollock prepared a draft code of Law of Torts for India, but it was never enacted
into a law.
• The Indian Law of Torts based on English Law, is continued by Article 372 of the Constitution
which has been interpreted to continue also the Common Law Principles applied in India.
• Its origin is linked with the establishment of British Courts in India.
• The first British Courts established in India were the Mayor’s Courts in the Three Presidency towns
of CALCUTTA, MADRAS and BOMBAY.
• The Englishmen administering these Courts, normally drew upon the Common Law and statute of
Law of England as found suitable to Indian conditions while deciding the cases “According to Justice
and Right”.
• Therefore, Law of Torts is part of Common Law, and it was thus, that the English Law of Torts
came to be applied in the cities of Calcutta, Madras and Bombay.
• The foundation of Law of Torts is that, in a civilized society, people should adhere to reasonable
behaviour and respect the rights and interests of one another. A person’s interest can be protected if
he is given compensation by the person who has violated his interest resulting into a loss or damage.
• The Law of Torts is based on principle of Equality and Justice.
• It is not a crime, as wrongful act is committed by you without any guilty mind behind it (which is an
essential element of crime).
• Therefore, Tort is a civil wrong, for which the remedy is available by way of compensation mainly,
and not by the way of punishment.
• The Law of Torts is certainly based on certain principles which were universally recognised and
acceptable.
• These generally recognised principles are incorporated in the law in the form of MAXIMS.

Case Law: Jay Laxmi Salt Works Pvt. Ltd. v/s. State of Gujarat, (1994) 3 S.C.
492, page 501
SAHAI J. observed “Truly speaking entire Law of Torts is founded and structured in morality that no one
has a right to injure or harm other intentionally or even innocently. Therefore, it would be primitive to class
strictly to close finally the ever-expanding and growing horizon of Tortious Liability. Even for social
development, orderly growth of the society and cultural refinedness, the liberal approach to Tortious
Liability by courts is more conducive”.

Case Law: Rylands v/s. Fletcher (1868) LR 3 HL 330

A more stringent rule of STRICT LIABILITY was laid down by Supreme Court in this case which
held that anyone who in the course of “non-natural” use of his land accumulates thereon for his own
purposes anything likely to do mischief if it escapes is answerable for all direct damage thereby caused.
 MEANING OF TORT

• The word “TORT” is a FRENCH word equivalent to of English word “Wrong”. In Roman
law, it means “delict”. It was introduced into English Law by Norman Jurists.
• The word “TORT” is derived from the LATIN term “TORTUM” means, to twist, and
implies a conduct which is twisted or tortuous.
• The first reported use of the word Tort is in
1) Boulton v/s. Hardy 1597;
2)Union of India v/s. Satpal Dharamvir, AIR 1969.
• Every wrong or wrongful act cannot be constituted as Tort.
• Tort is really a kind of Civil wrong as opposed to criminal wrong. Wrongs, in law, are either Public
or Private.
• Broadly speaking, Public Wrongs are the violations of the Public Law and hence the amount to be
offences against the State, while Private Wrongs are the breaches of Private Law, i.e., wrongs
against Individuals.
• Public wrongs or crimes are those wrongs which are made punishable under the penal law which
belong to the Public law group.

DEFINITION

1. Section 2(m) of the Limitation Act,1963, states: “Tort means a civil wrong which is not
exclusively a breach of contract or breach of trust”.
2. Salmond defines Tort as “a civil wrong for which the remedy is common law action for
unliquidated damages and which is not exclusively the breach of contract or the breach of trust or
other merely equitable obligation.”
3. Fraser describes it as “an infringement of a right in rem of a private individual giving a right of
compensation at the suit of the injured party”.
 4. Winfield says: “Tortious liability arises from the breach of duty, primarily fixed by the law; this
duty is towards persons generally and its breach is redressable by an action for unliquidated
damages”.
Two important elements can be derived from all these definitions, namely:
(i)That a tort is species of civil injury of wrong as opposed to a criminal wrong and,
(ii)That every civil wrong is not a tort.
Accordingly, it is now possible to distinguish tort from a crime and from a contract, a trust and a quasi-
contract. The distinction between civil and criminal wrongs depends on the nature of the appropriate remedy
provided by the law.
A civil injury for which an action for damages will not lie, is not a Tort e.g., public nuisance, for which no
action for damages will lie by an individual member of the public, even if he suffers from the nuisance. [For
private nuisance he can seek damages].
The person committing the tort is called as TORT-FEASOR or WRONG-DOER, and his mis-doing is a
tortuous act.
The Principal aim of Law or Torts is compensation of victims or their dependents. Grant of exemplary
damages in certain cases will show that deterrence of wrong doers is also another aim of the law of torts.

GENERAL CONDITIONS OF LIABILITY OF TORT

In general, a Tort consists of some act or omissions done by the defendant (tortfeasor) whereby he has
without just cause or excuse caused dome harm to plaintiff. To constitute a tort, there must be:
• A wrongful act or omission of the defendant;
• The wrongful act must result in causing the legal damage to another; and
• The wrongful act must be of such a nature as to give rise to a legal remedy.

(i)Wrongful Act:
The act complained of, should under the circumstances, be legally wrongful as regards the party
complaining. In other words, it should prejudicially affect any of the above-mentioned interests, and
protected by law. Thus, every person whose legal rights, e.g., right of reputation, right of bodily safety and
freedom, and right to property are violated without legal excuse, has a right of action against the person who
violated them, whether loss results from such violation or not.
(ii)Legal Damages:
It is not every damage that is damage in the eyes of the law. It must be damage which the law recognises as
such. In other words, there should be a legal injury or invasion of the legal right. In the absence of an
infringement of a legal right, an action does not lie. Also, where there is infringement of a legal right, an
action lies even though no damage may have been caused.

As it was stated in ASHBY v/s. WHITE, (1703) 2 Ld. Raym. 938 legal damage is neither identical
with actual damage nor is it necessarily pecuniary.
Two Maxims, namely:

(i)Damnum sine injuria

(ii)Injuria sine damnum, explains this proposition.

Damnum sine Injuria

Damnum means “harm, loss or damage in respect of money comfort, health etc”.
Injuria means “infringement of a right conferred by law on the plaintiff”.
It means “Damage without Injury”.
The maxim means that in a given case, a man may have suffered damage and yet have no action in tort,
because the damage is not to an interest protected by law of torts. Therefore, causing damage, however
substantial to another person is not actionable in law unless there is also violation of a legal right of the
plaintiff.
If I own a shop and you open a shop in the neighbourhood, as a result of which I lose some customers and
my profits fall off, I cannot sue you for the lose in profits, because you are exercising your legal right.

(Gloucester Grammer School case, (1410) Y.B. Hill. 11 Hen, 4, of. 47, pp. 21, 36)

Injuria Sine Damnum

It means “Injury without damage”.
That is, where there is no damage resulted yet it is an injury or wrong in tort, i.e., where there is
infringement of legal right not resulting in har but plaintiff can still sue in tort.
Some rights or interests are so important that their violation is an actionable tort without proof of damage.
Thus, where there is an invasion of an “absolute” private right of an individual, there is an injuria and the
plaintiff’s action will succeed even if there is no Damnum or damages. In simple terms, it means that if
someone else’s legal right is infringed upon, it is actionable, even if no damage has resulted to other person.
The leading example is the case of ASHBY v/s. WHITE referred to above where a person was wrongfully
not allowed to vote and even though it has not caused any damage to him, since his legal right to vote was
denied, he was entitled to compensation.
An absolute right is one, the violation of which is actionable per se, i.e., without the proof of any damage.
Injuria sine Damnum covers such cases and action lies when the right is violated even though no damage has
occurred. Thus, the act of trespassing upon another’s land is actionable even though it has not caused the
plaintiff even the slightest harm.
(iii)Legal Remedy:
The third condition of liability of Tort is legal remedy. This means that to constitute a tort, the wrongful act
must come under the law. The main remedy for a tort is an action for unliquidated damages, although some
other remedies, e.g., injunction, may be obtained in addition to damages or specific restitution may be
claimed in an action for the detention of a chattel.
Self-Help is a remedy of which the injured party can avail himself without going to the court of law. It does
not apply to all the torts and perhaps the best example of these to which it does apply is trespass to the land.

TORT AGAINST PERSONAL SAFETY AND FREEDOM

Wrongs against human body or wrongs affecting personal safety and liberty, are called “Trespass to Person”.

1. Assault
2. Battery
3. Mayhem
4. False imprisonment
5. Malicious Prosecution
6. Nervous shock
7. Defamation

ASSAULT
• Assault is an act of the defendant which directly causes the plaintiff immediately to apprehend a
contact with his person. Thus, when a defendant by his act creates an apprehension in the mind of the
plaintiff that he is going to commit Battery against him, the tort of Assault is committed.
• The law of Assault is substantially the same as that of Battery except that apprehension of contact,
not the contact itself has to be established.
• An assault is an attempt or a threat to do corporal hurt to another, coupled with apparent present
ability and intention to cause harm.
• Assault can be called as an attempt to cause harm by creating a presence of violence.
 • Any gesture or preparation made with:
1) Menacing attitude and hostile intention,
2) Coupled with present ability of the defendant to strike;
3) Which causes reasonable apprehension of danger in the mind of the plaintiff, can amount to an
assault.
Mere words do not amount to an assault. But, the words which the defendant (party threatening) uses at that
time, may either give to his gestures such a meaning, as may make them amount to an assault.

Ingredients of Assault:
In an action for assault, the plaintiff must prove:
1) That, there was some gesture or preparation made by defendant with menacing attitude;
2) That, the gesture or preparation was such, as to cause reasonable apprehension of danger in the
mind of the plaintiff; i.e., the defendant was about to use the criminal force.
3) That, the defendant had the present ability to strike or offer violence.

Case law: Stephen v/s. Myres (1830)

Plaintiff was the chairman of a parish meeting. The defendant was very vociferous and rude. The majority of
the members in the meeting decided that, the defendant should be turned out. Upon this, the defendant said
he would rather pull the chairman out of the chair, than be turned out of the room, and immediately
advanced with his first clenched towards the plaintiff. But, before he could reach the plaintiff and lay his
hands on the plaintiff, he was stopped by Church-Warden. Defendant was held liable for tort of assault.

Tindal C.J., in this case observed that-

“It is not every threat, when there is no actual personal violence, that constituted an assault, there must be in
all cases, be the means of carrying the threat into the effect”.

BATTERY
• Any direct application of force to the person of another individual without his consent or lawful
jurisdiction is a wrong or a battery.
• To constitute a Battery, two thigs are necessary:
(i) Use of force, however, trivial it may be without the plaintiff’s consent.
(ii) Without any lawful jurisdiction.
• Even though the force used is very trivial and does not cause any harm, the wrong is committed.
Thus, even to touch a person in anger or without any lawful jurisdiction is battery.
• Battery is an intentional and direct application of any physical force to the person (i.e., body) of
another”

Ingredients of Battery:
In any action for battery, plaintiff must prove:
(i) That, the defendant used physical force or violence against his body;
(ii) That, the defendant used that force wilfully and intentionally to cause harm.

Case Law: Cole v/s. Turner, (1704) Hold, Chief Justice, declared:
“First, that the least touching of another in anger is a Battery. Secondly, if two or more meet in a narrow
passage, and without any violence or design of harm, the one touches the other gently, it will be no battery.
Thirdly, if any of them uses violence against another, to force his way in a rude inordinate manner, it will be
a battery; or any struggle about the passage to that degree, as may do hurt, will be a battery”.

DISTINCTION BETWEEN ASSAULT AND BATTERY:

• Mere instant fear of physical violence is sufficient to constitute an assault. Actual physical contact is
not necessary; In battery, physical contact is necessary.
• In an Assault actual physical force is not applied to the body; In battery, physical force is applied.
• Assault is something less than a battery.
• Every Battery includes an Assault; but every Assault does not include Battery.

MAYHEM (Maim):
Mayhem is a bodily harm; whereby, a person is deprived of any member of his body which he can use in
fighting his adversary. E.g., harm caused or deprivation of teeth, hands, legs, fingers would give to an action
for mayhem. But, if a person is deprived of ears, nose would amount to disfigurement and not a loss of
fighting limb, and therefore, would not amount to Mayhem, but would amount to battery.
 FALSE IMRPISONMENT
• False imprisonment consists in the imposition of a total restraint for some period, however short,
upon the liberty of another, without sufficient lawful jurisdiction.
• It means unauthorized restraint on a person’s body. What happens in false imprisonment is that a
person is confined within certain limits so that he cannot move about and so his personal liberty is
infringed.
• It is serious violation of a person’s right and liberty whether being confined within the four walls or
by being prevented from leaving place where he is. If a man is restrained, by a threat of force from
leaving his own house or an open field there is a false imprisonment.
• It is a tort against the liberty of movement of a person
• According to PORTER, “False Imprisonment is the total restraint of a person’s liberty of
movement for any time, however short, without lawful excuse.”

Ingredients:
1. There must be a Total Restraint on the person’s liberty of movement;
2. The restraint must be Unlawful.

1) Total Restraint on Liberty:

The total restraint on the liberty of the person, may be either actual or constructive. When a person is
physically confined within certain circumstancing limits, it is called an Actual Physical Restraint. On the
other hand, when these limitations are not physical, but psychological, it is called a Constructive Restraint.
The restraint on liberty of the person must be total, that is, there must be a restraint on all directions.

Case law: Maharani Naba v/s. The Province of Madras (1942):

Under the official orders, the Maharani of Naba was to be prevented from leaving the boundaries of Kodai
Canal. But the sub-inspector misunderstood the order sent to him and prevented Maharani and her daughter
from boarding the train when she was leaving for Madras by train. It was held that, there was no false
imprisonment as there was no total restraint on the liberty of movement since the Maharani was free to
proceed in some other direction.

2) Unlawful restraint on Liberty:

The total restraint on the liberty of the person must be unlawful. If the restraint can be justified in law, it
would not amount to false imprisonment.
a) Even if the lawful imprisonment is continued beyond the authorised period, it would amount to be a
false imprisonment.
b) In case of false imprisonment, the period of detention is immaterial. Detention for howsoever short a
period, if it is total and unlawful, would amount to false imprisonment.
c) A wrongful or malicious intention is not essential for false imprisonment. False imprisonment with a
good motive would not be justifiable.
 d) A person may be falsely imprisoned without even knowing that he is imprisoned e.g., when a person
is fast asleep, fully drunk, unconscious or lunatic.

Case Law: Merring v/s. Graham White Avilton Co. Ltd:

In this case Lord Atkin, said that “A person can be imprisoned while he is asleep, while is in a state of
drunkenness, while he is unconscious, and while he is lunatic.

MALICIOUS PROSECUTION
Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another,
maliciously and without reasonable and probable cause, which terminate in favour of that other and which
results in damage to his reputation, personal freedom or property.

Ingredients:
• There must have been a prosecution of the plaintiff by the defendant.
• There must have been want of reasonable and probable cause for that prosecution.
• The defendant must have acted maliciously (i.e., with an improper motive and not to further the end
of justice).
• The plaintiff must have suffered damages as a result of the prosecution. (This damage may be in
relation to Property, Reputation or Personal Liberty).
• The prosecution must have terminated in favour of the plaintiff. (The termination of criminal
proceedings may be by way of acquittal on merits, or by discharge or dismissal also).
To be actionable, the proceeding shall be instigated actually by the defendant. If he merely states the fact as
he believes them to a policeman or a magistrate, he is not responsible for any proceedings which might
ensue as a result of action by such policeman or magistrate on his/her own initiative.
This is because there is no malice involved in it. Malicious Prosecution thus actually refers to the case of
initial prosecution with malice and as a remedy for it, the other party who had won the case, may institute,
under the law of torts, a suit for malicious prosecution.
It is Malicious institution against an innocent person, of unsuccessful criminal or bankruptcy or liquidation
proceedings, without reasonable or probable cause, which causes damage to that innocent person.

Distinguish between False Imprisonment & Malicious Prosecution:

• False Imprisonment consists in wrongfully restraining the liberty of a person;
Malicious Prosecution is wrongfully settling the criminal law in motion.
• False Imprisonment is a tort against liberty of movement;
Malicious Prosecution is a tort against the right not to be harassed by prosecution and tort to
reputation or property or person.
• In False Imprisonment, it is Not necessary to prove malice;
In Malicious Prosecution, it is necessary to prove malice.
• In False Imprisonment, it is not necessary to prove absence of a reasonable or probable cause;
In Malicious Prosecution, it must be proved that, the criminal proceedings were instituted without
reasonable and probable cause.
• In False Imprisonment, actual damage need not be proved. It is actionable per se;
In Malicious Prosecution, actual damage is needed to be proved.
• In False Imprisonment, mistake of fact would not be good defence;
In Malicious Prosecution, mistake may be a good defence.

NERVOUS SCHOCK
• This branch of law is comparatively of recent origin.
• It provides relief when a person may get physical injury not by an impact; e.g., by stick, bullet or
sword but merely by the nervous shock through what he has seen or heard.
• Causing of nervous shock itself is not enough to make it an actionable tort, some injury or illness
must take place as a result of the emotional disturbance, fear or sorrow.
 DEFAMATION
• Defamation is an attack on the reputation of a person. It means that something is said or done by a
person which affects the reputation of another.
• It is defined as:
“Defamation is the publication of a statement which tends to lower a person in the estimation of right-
thinking members of society generally; or which tends to make them shun or avoid that person”.

Ingredients:
1. The statement must be defamatory;
2. The statement must refer to the plaintiff;
3. The statement must be published;
4. The statement must be false.

1) The statement must be wrongful:

A statement is defamatory if;
• It exposes a person to hatred, contempt or ridicule, or
• Injures him in his trade, business, profession, calling or office; or
• Causes him to be shunned or avoided in society

‘Innuendo’:
Thus, the definition of innuendo” is, “where the words are not prima facie defamatory, but the plaintiff
intends to maintain that they were defamatory by reason of their being understood by special sense, he must
insert an averment called ‘Innuendo’.
The purpose of Innuendo is to point out a secondary meaning in which words are defamatory and an
innuendo cannot add a fact or enlarge the actual meaning or words.

Case Law: Mrs. Cassidy v/s. Daily, Mirror News Paper Ltd. 1929 2 K.B. 231:
The defendants published in the newspaper, a photograph of the plaintiff’s husband Mr. Cassidy also known
as Corrigan and another lady Miss X with following caption, “Mr. M. Corrigan, the race-horse owner and
miss X, whose engagement has been announced”. In this case, it was held that, the innuendo in the words
published conveyed a meaning defamatory of the plaintiff that she was not the lawful wife of Mr. Cassidy.

2) The statement must refer to plaintiff:

In an action for defamation, the plaintiff must show that, the defamatory statement refers to him. It is not
necessary that, the plaintiff’s full name should be described, it is sufficient if he is described by his initial
letters of name, or even by fictitious name, provided, he can satisfy the Court that, he was the person referred
to.
It must be noted that, the question is not who is meant, but rather who is hit by the statement.

Case Law: Newstead v/s. London Express News Papers Ltd. (1940) KB 377:
In this case, the statement was that, “Harold Newstead, thirty-year-old Camberwell man had been found
guilty of bigamy”. This statement was true of a barman of that name of Camberwell. The plaintiff bearing
the same name and aged about thirty, who carried on hair dressing business at Camberwell and about whom
the statement was untrue, succeeded in recovering the damages in an action for defamation.
 3) The statement must be published:
The statement must be published, means, it must be communicated (made known) to some other person,
other than the person to whom it refers. No civil action lies, if the defamatory statements are communicated
only to the person spoken of, because, that cannot injure his reputation, though it may injure his self- esteem.
It must be communicated to at least a third person. Thus, the publication of a defamatory statement means,
the making known of the statement (orally or in writing) to any person other than the person defamed.

4) The statement must be false:

The defamatory statement published must be false. If, it is true, no action would lie, for, truth is an absolute
defence in an action for defamation.
It may be noted that, false statements mean, a false statement which may refer to the plaintiff.
(Newstead v/s. London Express News Papers Ltd. 1940)
Defamation is classified in two types:
1) Libel
2) Slander.

1)Libel:
A libel is a publication of a false and a defamatory statement in some permanent form, tending to injure the
reputation of another person, without lawful justification of service.
Permanent form may refer to publishing in written words, pictures, caricatures, cinema films (photographic
part as well as speech synchronised with it), effigy, statue and recorded words.

Ingredients:
• It must be defamatory;
• It must be referred to plaintiff;
• It must be published and false;
• It must be in a Permanent form.

Case law: Yousoupoff v/s. Metro- Goldwyn- Mayer Pictures Ltd. 1934:
Defamation through the agency of mechanically reproduced pictures and words, for example, a talking film,
constitutes a libel. In this case, Princess Irina of Russia, the wife of Prince Yousoupoff, claimed damages for
a libel contained in a talking film entitled, “Rasputin, the Mad Monk”, alleging that Metro Goldwyn Mayor
Pictures Ltd. Had published pictures and words in film which were understood to mean defamatory against
her. She was called therein as “Princess Natasha who has been seduced or raped by Rasputin”. The jury of
the trial court offered her f 25,000/- damages.

2)Slander:
A slander is a false and defamatory verbal or oral statement in some transitory form, tending to injure the
reputation of another, without lawful justification or excuse.
It is publishing of a defamatory statement in a transient form, statement of temporary nature such as spoken
words, or gestures.

Ingredients:
 • It must be defamatory;
• It must refer to the plaintiff;
• It must be published;
• It must be false;
• It must have caused special damage to the plaintiff.

Slander when actionable per se?

The general rule is that, slander is not actionable ‘per se’ (by itself) i.e., without proof of special damage to
plaintiff, except in the five cases mentioned below:
1) Accusation of a criminal offence;
2) Accusation of virulent disease;
3) Unfitness, dishonest imputation against office, profession or trade;
4) Accusation of unchastity, or adultery of any woman or girl; and
5) Aspersion on caste.
Generally, the punishment for libel is more severe than for slander.
Defamation is tort as well as crime in India.

In India, both libel and slander are treated as crime. Section 499 of the Indian Penal Code recognizes both
libel and slander as an offence. However, torts in criminal law are stricter than in law of tort.

TORT AGAINST PERSONAL RELATIONS

Following relations have been recognised as domestic (personal) relations:
1) Husband and Wife;
2) Parents and Children;
3) Master and Servant.
These relations create a personal right (domestic right) and need to be protected by our law. Law of Torts
recognizes these rights and therefore, If a wrongdoer interferes with a person’s family and service
relationships, an action can be taken under law of Torts against a person, for injuring the plaintiff’s wife,
minor children, domestic servant and compensation can be recovered from him for loss of service to plaintiff
husband or parent or master.
The above said creates the following personal rights:
 A) Torts to Marital Rights;
B) Torts to Parental Rights;
C) Torts to a Master’s Rights.
Whosoever, violates these rights will be held liable for tort to domestic(personal) relations.

A) Torts to Marital Rights:

A violation of marital rights can take place in the following three ways:
1) Abduction or taking away a man’s wife,
2) Adultery
3) Causing physical injuries to a man’s wife.
Abduction:
The Common Law gives a husband a right of action against any person who takes away his wife by force
or fraud. Similarly, he can sue anyone who persuades or entices the wife to live away from him without
sufficient cause. The gist of the action is the loss of consortium of the wife, which term implies an exclusive
right, against an invader, to her affection, companionship and aid. Per quod amisit (whereby he had lost the
benefit of her society) is the ground of action in all such suits. A wife has similarly a right of action for
deprivation of her husband’s society. The right of consortium is a mutual right of husband and wife, and if
anyone violates it, either the husband or the wife can sue for that wrong.
Adultery:
In the medieval period, adultery was actionable by means of a writ of trespass vi et armis, the action
being known as the action for criminal conversation. But this action has been abolished by the Divorce
and Matrimonial Causes Act, 1957. To-day, when adultery is committed, a husband has a claim for
damages against the wrongdoer under the said Act. The claim may be made either in a petition for
dissolution of the marriage, for judicial separation, or in a petition, presented only to claim damages.
Interestingly, a wife cannot bring an action against the wrong-doer for damages solely in respect of
adultery committed with her husband.
Causing physical injuries to a wife:
The Common Law allows a husband to bring an action for physical injury caused to his wife. If, by
maltreatment, the husband is deprived, for any time, of the company and assistance of his wife, the Common
Law gives him a separate remedy by an action or for damages for such maltreatment. The wife can sue for
injury caused to her and the husband for the loss of her society and service (consortium et servitium). These
two actions may be brought separately or together. Where the injuries result in the death of the wife, the
husband can claim compensation under the Fatal Accidents Act. The gist of the action being loss of society
and services, it follows that a husband whose wife is living separately from him will not be entitled to
damages.

B) Torts to Parental Rights:

A parent has a right of the custody, control and services of his or her children. This right is vested in him or
her, not in the capacity as a parent, but in the capacity as the employer of the child. The fiction of service is
the foundation of the capacity. A person in loco parentis (that is, in the position of a parent) has a similar
right of action. Proof of living under the father’s roof is ordinarily sufficient evidence of service. Seduction
of a daughter or child in the case of female servants, the employer, and in the case of female children, the
father or guardian, has a right of action for seduction, that is, for the debauching of such servant or child. To
support an action for seduction, two things are necessary:
(i) Proof of actual service of some kind, however slight, at the date of seduction; and
 (ii) The child or servant must have been rendered ill and incapable of rendering service in
consequence of the seduction. In case of parents, the action is based upon a bare fiction of
service, and in the case of a master, upon an actual contract of service. Loss of service must be
distinctly alleged and proved by the plaintiff.

Case Law: BEETHAM v. JAMES, (1937) 2 K. B. 527

In an action for which the seduction of the plaintiff’s daughter aged 22, it was admitted in cross-
examination that the plaintiff and the girl’s mother were not married. They had, however, lived together
as man and wife for many years. The girl lived with the plaintiff and her mother, and although she was
out working during the day, she assisted the plaintiff and her mother in the household duties. The Court
held that any person standing in loco parentis can recover in an action for seduction; thus, the plaintiff
succeeded, even though he and the girl's mother were not married, if, as here, loss of service is proved. It
is also immaterial whether the child is or is not of full age. A married woman had separated from her
husband and was living with her father, acting as his servant. It was held that the father could maintain
an action against a person by whom she was debauched. It may be noted that no action can be
maintained by the woman in respect of her own seduction, for the foundation of the action is the
relationship of master and servant. So also, a mother cannot herself maintain an action, if the seduction
took place during her husband’s lifetime, as her right is merged in that of her husband under the
Common Law. Damages how assessed in an action by the father for seduction of his daughter, damages
are usually exemplary. They are not restricted to loss of service only, but the father is entitled to
compensation for his distress and anxiety of mind, for the disgrace and dishonour which he and his
daughter are subjected to, for the loss of the society of his daughter, and for expense of maintaining a
bastard child. The social position of the parties concerned is also to be considered. The means of the
defendant ought not to be inquired into, and this factor would not affect the amount of damages. It is an
aggravation that the seduction was affected under the guise of honourable addresses. Where the plaintiff
is the master of the person seduced, the measure of damages is the actual pecuniary loss to him.

C) Torts to Master’s Rights:

At Common Law, a master has a right of action against anyone who deprives him of the services of his
servant by:
(i) injuring or imprisoning him so as to prevent performance of service by the servant; or
(ii) inducing the servant to leave the master’s service wrongfully, that is, before the expiry of the
stipulated period.
In addition to the above, a master may sue for loss of service caused by the seduction of a female servant.
The relationship of master and servant must have existed both at the time of seduction and at the time of the
illness causing the loss of service. The word “seduces” appears also in the Bombay Children Act, 1948. The
Bombay High Court has interpreted it as meaning to lead a girl astray in conduct or to draw away a girl from
the right course of action. It would also include inducement to indulge in immoral behaviour. (Narassappa
v. The State, 75 B. L. R. 221)
Service of female servants in a master’s action for seduction of his female servants, the following three facts
must be proved:
(i) That contractual service of some kind was rendered by the servant at the time of seduction.
(ii) That the servant was incapacitated from rendering service in consequence of the seduction.
Usually, the incapacity referred to above results from pregnancy and confinement. But it is
sufficient even if the servant is taken ill because she is mentally upset. Where, however, the
 seduction takes place before the relation of the master and the servant was established, the master
would have no cause of action. Where the servant is at the time in the service of two different
masters, each may sue in respect of the seduction.
(iii) That the plaintiff suffered a special damage by reason of the injury inflicted on the servant.

CONCLUSION
Tort law is a body of law that addresses and provides remedies for non-contractual acts of civil
wrongdoings. A person suffering legal damage may be able to use tort law to receive compensation for those
injuries from someone who is legally responsible or liable.
In general, tort law defines what constitutes a legal injury and sets out the circumstances under which one
person may be held liable for the injury of another. Tort law spans acts that are intentional and negligent.
The three purposes of the tort law. The first is compensating the victim, the second is punishing the
wrongdoer and the third is deterring harmful activities.
There is some similarity between crime and tort, since in the past century’s tort, a private action, used to be
used more than criminal laws.
An assault, for example, is both a crime and a tort (a form of trespass against the individual). A tort allows
an individual, the victim, to obtain a remedy that serves their own purposes (e.g., by paying damages to a
person injured in a car accident or by obtaining injunctive relief to stop a person from interfering in their
business).
On the other hand, criminal actions are pursued not to obtain remedies to assist a person – although criminal
courts often have the authority to grant such remedies – but to remove their freedom on behalf of the state.
This explains why incarceration is usually available as a punishment for serious crimes, but usually not for
tort.

BIBLIOGRPAHY
• ICSI Module (Industrial, Labour and General Laws)
• Law of Torts and Consumer Protection Act by Prof. Prakash K. Mokal
• https://blog.ipleaders.in/before-you-forget-brush-your-knowledge-on-torts-between-domestic-
relations/