UNIT-I EVOLUTION OF LAW OF TORTS

1 England - Forms of action, specific remedies from case to case

2 India - principles of justice equity and good conscience-unmodified character- advantages and
disadvantages
DEFINITION, NATURE, SCOPE AND OBJECTS OF TORT
1. A wrongful act- violation of duty imposed by law, duty which is owed to people generally (in
rem)- damnum sine injuria and injuria sine damnum doctrine and applicability.
2. Tort distinguished from crime and breach of contract and trusts.
3. The contract of unliquidated damages
4. Changing scope of law of torts: expanding character of duties owed to people generally due to
complexities of modern society
5. Objects-prescribing standards of human conduct, redressal of wrongs by payment of
compensation, proscribing unlawful conduct by injunction.
 TORTS ENGLISH PERSPECTIVE
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of
England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law
on the wrongdoers in court – in a criminal case. A tort is not enforced by the police, and it is a civil
action taken by one citizen against another, and tried in a court in front of a judge (only rarely, in
certain cases of defamation, with a jury). Tort derives from middle English for "injury", from
Anglo-French, from Medieval Latin tortum, from Latin, neuter of tortus "twisted", from past
participle of torquēre. Following Roman law, the English system has long been based on a closed
system] of nominate torts, such as trespass, battery and conversion. This is in contrast to continental
legal systems, which have since adopted more open systems of tortious liability. There are various
categories of tort, which lead back to the system of separate causes of action. The tort of negligence
is however increasing in importance over other types of tort, providing a wide scope of protection,
especially since Donoghue v Stevenson. For liability under negligence a duty of care must be
established owed to a group of persons to which the victim belongs, a nebulous concept into which
many other categories are being pulled.

TORTS INDIAN PERSPECTIVE

Tort law in India is a relatively new common law development supplemented by codifying statutes
including statutes governing damages. While India generally follows the UK approach, there are
certain differences which may indicate judicial activism, hence creating controversy. Tort is breach
of some duty independent of contract which has caused damage to the plaintiff giving rise to civil
cause of action and for which remedy is available. If there is no remedy it cannot be called a tort
because the essence of tort is to give remedy to the person who has suffered injury.
Tort law in India, like her common law counterparts, stems from both statute and common law.
STATUTES
Similar to other common law countries, aspects of tort law have been codified. Furthermore, the
Indian Penal Code criminalises certain areas of tort law.
COMMON LAW
As tort law is a relatively young area of law in India, apart from referring to local judicial
precedents, courts have readily referred to case law from other common law jurisdictions, such as
UK, Australia, and Canada.
RELEVANT LOCAL CUSTOMS AND PRACTICES
However, attention is given to local socio-cultural practices and conditions in applying foreign legal
principles. The legislature has also created statutes to provide for certain social conditions; for
example, due to the nature of Indian families, a statute was passed to simplify determination of
damages in the event of family members.

MEANING OF TORT
Tort is a Civil / Legal Wrong. Tort Law is one of the important branches of Civil Law. The word
Tort is derived from a Latin word 'Tortus' which means 'twisted' or 'cooked act'. In English it means,
'wrong'. The Expression 'Tort' is of French Origin. The term 'Tort' means a wrongful act committed
by a person, causing injury or damage to another, thereby the injured institutes (files) an action in
Civil Court for a remedy viz., unliquidated damages or injunction or restitution of property or other
available relief. Unliquidated damages mean the amount of damages to be fixed or determined by
the Court. The 'Law of Torts' owes its origin to the Common Law of England. It is well developed
in the UK, USA and other advanced Countries. In India, Law of Torts is non codified, like other
branches of law e.g.: Indian Contract Act, 1872 and Indian Penal Code, 1860. It is still in the
process of development. A tort can take place either by commission of an act or by omission of an
act.
WRONG
 PUBLIC WRONG - Crime is a Public Wrong. These are acts that are tried in Criminal
Courts and are punishable under the Penal Law (such as the Indian Penal Code, 1860 in
India)
 PRIVATE WRONG - Tort is a Private Wrong. These are acts against an individual person
or a person within a community and are tried in Civil Courts.

DEFINITION
According to Prof. Winfield, Tortious Liability arises from breach of a duty primarily fixed by law;
this duty is towards persons generally and its breach is redressable by an action for unliquidated
damages. Sir John Salmond defined 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.
 The person who commits or is guilty of a tort is called a "tortfeasor".
 The person who suffered injury or damage by a tortfeasor is called injured or aggrieved.
 Tort is a common law term and its equivalent in Civil Law is "Delict".
 In general, the victim of a tortious act is the plaintiff in a tort case.
 As a general rule, all persons have the capacity to sue and be sued in a tort.
 Liquidated Damages (also referred to as liquidated and ascertained damages) are damages
whose amount the parties designate during the formation of a contract for the injured party to
collect as compensation upon a specific breach (e.g., late performance).
 Unliquidated Damages (uncountable) (law) An amount owed to a plaintiff in a lawsuit by
the defendant that cannot be determined by operation of law, such as the value of pain and
suffering in a tort case.
 Malice- A condition of mind which prompts a person to do a wrongful act wilfully, that is,
on purpose, to the injury of another, or to do intentionally a wrongful act toward another
without justification or excuse.
 In its legal sense it means a wrongful act done intentionally without just cause or excuse.
 Malice is a wish to injure a party, rather than to vindicate the law. Malice of two types:
I. Malice in fact
II. Malice in law
 Malice In Fact – Means an actual malicious intention on the part of the person who has
done the wrongful act. It is also called express or actual malice.
 Malice In Law – It is not necessarily personal hate or ill will, but it is that state of mind
which is reckless of law and of the legal rights of the citizen.
 Motive – Motive is that which incites or stimulates a person to do an act. It is the moving
power which impels to action for a definite result.
 Motive is mainspring of human action. It is cause or reason. It is something which prompts a
man to form an intention.
 Intention – A settled direction of the mind towards the doing of a certain act; that upon
which the mind is set or which it wishes to express or achieve; the willingness to bring about
something planned or foreseen.
 Injury- In legal parlance, ‘injury’ means any wrong or damage done to another, either in his
person, rights, reputation or property.
 Meaning under Penal Code, 1860 (section 44) – the word injury denotes any harm whatever
illegally caused to any person, in body, mind, reputation or property.
 Hurt – Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
 Malfeasance – it is a wrongful act which the actor has no legal right to do, or any wrongful
conduct which affects, interrupts, or interferes with performance of official duty, or an act
for which there is no authority or warrant of law or which a person ought not to do at all, or
has contracted not, to do.
 The word ‘malfeasance’ would apply to a case where an act prohibited by law is done by a
person. (Khairul Bahsar v. Thana Lal AIR 1957)
 Misfeasance – Unlawful use of power; wrongful performance of a normally legal act;
injurious exercise of lawful authority; official misconduct; breach of law.
 The word ‘misfeasance’ would apply to a case where a lawful act is done in an improper
manner.
 Nonfeasance - Non-performance of some act which ought to be performed, omission to
perform a required duty at all, or total neglect of duty.
 Nonfeasance would apply to a case where a person omits to do some act prescribed by law.
 Distinction between ‘Misfeasance’, ‘nonfeasance’ and ‘malfeasance’ – Misfeasance is the
improper doing of an act which a person may wilfully do. Nonfeasance means the omission
of an act which a person ought to do. Malfeasance is the doing of an act which a person
ought not to do at all. Tort Law provides an avenue for an injured person of a remedy. It does
not provide a guarantee of recovery.
AGAINST THE PROPERTY
INTENTIONAL TORTS: An intentional tort is when an individual or entity purposely engages in
conduct that causes injury or damage to another. For instance, striking someone in a fight would be
consider an intentional act that would fall under the tort of battery; whereas accidentally hitting
another person would not qualify as “intentional” because there was no intent to strike the
individual (…however, this act may be considered negligent if the person hit was injured).
Although it may seem like an intentional tort can be categorized as a criminal case, there are
important differences between the two. A crime can be defined as a wrongful act that injures or
interferes with the interests of society. In comparison, intentional torts are wrongful acts that injure
or interfere with an individual’s well-being or property. While criminal charges are brought by the
government and can result in a fine or jail sentence, tort charges are filed by a plaintiff seeking
monetary compensation for damages that the defendant must pay if they lose. Sometimes a
wrongful act may be both a criminal and tort case.
NEGLIGENCE
There is a specific code of conduct which every person is expected to follow and a legal duty of the
public to act a certain way in order to reduce the risk of harm to others. Failure to adhere to these
standards is known as negligence. Negligence is by far the most prevalent type of tort. Unlike
intentional torts, negligence cases do not involve deliberate actions, but instead are when an
individual or entity is careless and fails to provide a duty owed to another person. The most
common examples of negligence torts are cases of slip and fall, which occur when a property owner
fails to act as a reasonable person would, thus resulting in harm to the visitor or customer.
STRICT LIABILITY
Last are torts involving strict liability. Strict, or “absolute,” liability applies to cases where
responsibility for an injury can be imposed on the wrongdoer without proof of negligence or direct
fault. What matters is that an action occurred and resulted in the eventual injury of another person.
Defective product cases are prime examples of when liability is maintained despite intent. In
lawsuits such as these, the injured consumer only has to establish that their injuries were directly
caused by the product in question in order to have the law on their side. The fact that the company
did not “intend” for the consumer to be injured is not a factor
CHARACTERISTICS
1. Tort, is a private wrong, which infringes the legal right of an individual or specific group of
individuals.
2. The person, who commits tort is called "tort-feasor" or "Wrong doer".
 3. The place of trial is Civil Court.
4. Tort litigation is compoundable i.e., the plaintiff can withdraw the suit filed by him.
5. Tort is a species of civil wrong.
6. Tort is other than a breach of contract
7. The remedy in tort is unliquidated damages or other equitable relief to the injured.
ESSENTIAL ELEMENTS TO PROVE A TORT
 Existence of legal duty from defendant to plaintiff
 Breach of duty
 Damage as proximate result.
DISTINCTION BETWEEN TORT AND CRIME
TORT CRIME
Tort is tried in civil court Crimes are tried in criminal court
A person who commits tort is a “tortfeasor” A person who commits crime is a “criminal” or
“offender”.
The remedy of tort is unliquidated damages The remedy is to punish the offender
or other equitable relief to the injured.
Tort litigation is compoundable Criminal cases are not compoundable except in
case of exceptions as per section 320 cr. P.C of
IPC
It is a violation of civil or a personal right It is a violation of public duty which affects the
society as a whole.
The plaintiff can himself institute a civil The criminal proceedings against the offender is
proceeding against the defendant. instituted by the court and he is punished in the
interest of the society.
In tort the motive is not paid relevant In crime motive ‘mens rea’ plays an immense
importance. role for turning the liability of the offender.
Tort is a mere breach of duty for which Crime is an unlawful act prohibited by law for
damage may be recovered from the which the only remedy is to punish the offender.
defendant.
In tort, the action is brought in the court by In crime, proceedings are conducted by the
the injured party to obtain compensation. state.
The aim of litigation in torts is to compensate In crime; the offender is punished by the state in
the injured party. the interest of the society.
In tort, the parties are the plaintiff versus the Parties involved in criminal cases are the
defendant. prosecution verse the accused person.
DISTINCTION BETWEEN TORT AND CONTRACT
TORT CONTRACT
A tort involves violation of a right rem, which A breach of contract involves violation of a
means duty in torts exists towards torts all right in person am, which means the duty in
persons generally. contract exists only as between the parties who
enter into the contract and can not be enforced
by or against a third party.
Duty is imposed by law. Duty is imposed by parties consenting to the
contract.
The action in tort, damages are unliquidated In contract the damages are pre-determined and
because it is difficult to visualise in advance the stipulated in the terms of the contract itself.
quantum or degree of damage caused to the
plaintiff.
In tort the law fixes the duty. In a contract, the parties fix the duties
themselves.
In tort, privity is not needed in order to sue or A contract stipulates that only the parties to the
be sued. contract can sue and be sued on it (privity of
contract).
In tort, the duty is owed to the community at In the case of contract, the duty is owed to a
large i.e., duty in-rem. definite person(s).

DISTINCTION BETWEEN TORT AND BREACH OF TRUST

TORT BREACH OF TRUST
Tort originated from English common law. Breach of trust and other obligations fell
exclusively within the jurisdiction of equity.
It is not a codified law. It is a codified law.
The plaintiff and the defendant may or may not The plaintiff and the defendant know each
known each other previous to the incidence of other from the beginning. In fact, the law of the
tortious liability. trust is depended upon the trust on each other.
The legal remedy for a tortious liability is Injunctions, specific restitution of property, and
unliquidated damages. the payment of liquidated sums of money by
way of penalty, etc. are legal remedies
available to the plaintiff. Besides them, the
defendant is also liable for fine or
imprisonment or both under the criminal
proceedings.
REMEDIES
REMEDIES ARE OF TWO TYPES
1. JUDICIAL
Judicial remedy is of three types:
1.Damages
Types of damages

 Exemplary or Vindictive damages – are damages on an increased scale, awarded to the

plaintiff over and above what will barely compensate him for his property loss, where the
wrong done to him was aggravated by circumstances of violence, oppression, malice etc.
 Ordinary or Real damages – are compensation for general damage. General damages are
those which the law implies in every breach of contract and in every violation of a legal
right.
 Nominal damages – They are awarded for the vindication of a right where no real loss or
injury can be proved.
 Contemptuous damages-

2.Injunction

Injunction- A judicial process operating in person am, and requiring a person to whom it is
directed to do or refrain from doing a particular thing. Law as to the injunction is contained in the
Specific Relief Act 1963 and the CPC 1908.
Types of injunctions –

 Mandatory – When, to prevent the breach of an obligation, it is necessary to compel the

performance of certain acts, the Court may in its discretion grant an injunction to prevent the
breach (s. 55 of the Specific Relief Act, 1877).
 Permanent or perpetual – By perpetual injunction a defendant is perpetually enjoined from
the assertion of a right, or from the commission of an act, which would be contrary to the
rights of the plaintiff (s. 53, the Specific Relief Act, 1877).
 Temporary – Temporary injunction is such as is to continue until a specified time, or until
the further order of the Court. It is regulated by the CPC (s. 53, The Specific Relief Act,
1877)
  Ad-interim - The Interim order is the order which is passed when the suit is still pending in
the court. The Ad Interim means in the meantime or temporary. Ad Interim stay means the
temporary order of injunction passed by the court while the suit is still pending. It is granted
when the applicant established that there would be irreparable damage without it or as per
the Court require.
3.Restitution of property
Restitution of property- Specific Restitution of property is one of the judicial remedies available
to an aggrieved party in case of tort. Restitution means restoration of goods back to the owner of
the goods. When a person is wrongfully dispossessed of his property or goods, he is entitled to the
restoration of his property.

2. EXTRA-JUDICIAL
Extra-judicial remedies are

 Self-defence - The use of force to protect oneself, one’s family, or one’s property from a real
or threatened attack.
 Expulsion of trespassers - Forcibly evicting the trespasser.
 Reception of chattels- Chattel means movable or transferable property; personal property.
 Re-entry of land
 Abatement of nuisance - Abatement is the act of eliminating or nullifying; the act of
lessening or moderating.
 Distress damage pheasant- the right to seize animals or inanimate chattels that are
damaging or encumbering land and to keep them as security until the owner pays
compensation
1.Wrongful Act or Omission - There must be some act or omission of a duty on the part of the
defendant. For a tort to happen, the person must have first either done something that he was not
expected to do or omitted to do something that he was supposed to do. Municipal Corp of Delhi vs
Subhagvanti AIR 1966 - A clock tower was not in good repairs. It fell and killed several people.
MCD was held liable for its omission.
2.Duty imposed by law - The act or omission of an action must be required by law or the duty
must be imposed by law. This means that if an act that is prohibited by law causes harm, it is liable
under tort. Similarly, if the omission of an act that is required by law causes harm, then it is liable
under tort. For example, law requires that the driver of a vehicle must drive carefully and if driving
without care, a pedestrian is hit, the omission of the act of driving carefully is liable under tort.
However, if the worshipers stop going to a temple and thereby because the priest to lose money, this
action is not liable under tort because going to temple is not an act that is required by law. Such
duties that are required by law are usually towards all the people in general. Donaghue vs Stevenson
1932 - Held that the manufacturer of a drink has a legal duty towards the consumers to ensure that
noxious substances are not included in the drink.
3.Injury - The act or the omission must result in legal damage or injury i.e. violation of a legal
right vested in the plaintiff. This means that the act or omission must cause a damage that is
recognized by law as wrongful.

INJURIA SINE DAMNUM

Injury without damage

Injuria Sine Damno A person has a legal right to enjoy his property and if someone throws trash in
it, this is a violation of his legal right and is liable under tort. However, it is possible that a legal
right is violated without causing any physical or real damage.
Ashby vs White 1703 - The defendant wrongfully prevented the plaintiff from voting. Even though
there was no damage, the defendant was held liable.
Bhim Singh vs State of J K AIR 1986 - Plaintiff was an MLA and was wrongfully arrested while
going to assembly session. He was not produced before a magistrate within the requisite period. It
was held that this was the violation of his fundamental rights. Even though he was release later, he
was awarded 50,000RS as exemplary damages by SC.
 DAMNUM SINE INJURIA

Damage without Injury

Damnum Sine Injuria – On the other hand, it is possible that a person suffers a huge loss or
damage but none of his legal rights are violated. This is called Damnum sine Injuria. In such cases,
there is no tortious act.
Glaucester Grammar School's case 1410 - Defendant opened a rival grammar school in front of
an existing one thereby causing the fees of the existing one to be reduced from 40pence to 12 pence.
He was not held liable as he did not violate any legal right of the plaintiff.
Ushaben vs BhagyaLaxmi Chitra Mandir AIR 1978 - Plaintiff sought a permanent injunction
against the cinema house to restrain them from showing the movie Jai Santoshi Maa. It was
contended that the movie depicts the goddesses Laxmi, Saraswati, and Parvati in bad light, which is
offensive to the plaintiff. It was held that hurt to religious sentiments is not recognized as a legal
wrong. Since there was no violation of a legal right, an injunction was not granted.
Chesmore vs Richards 1879 - Plaintiff had been drawing water from underground for past 60 yrs.
The defendant sunk a bore well on his land and drew huge quantity of water which diminished the
water supply of the plaintiff. It was held that the defendant was not liable because he was only
exercising his right and did not violate any right of the plaintiff.
NOTES
 UNIT-II JUSTIFICATION IN TORT

1. Volenti non fit injuria

2. Necessity, private and public

3. Plaintiffs default

4. Act of God

5. Inevitable accident

6. Private defense

7. Statutory authority

8. Judicial and quasi-judicial acts

9. Parental and quasi-parental authority

10. Extinguishment of liability in certain situation

Torts That Are Not Actionable / General Defences For Torts
Even when a plaintiff provides proof for the existence of all the essential elements of a tort, it is
possible in some cases for the defendant to take certain defences which can remove his liability,
These defences are nothing but specific situations or circumstances in which a defendant is given a
waiver for his tortious action. These are as follows –
1.Volenti Non Fit Injuria
When a person consents for infliction of harm upon himself, he has no remedy for that in Tort. That
means, if a person has consented to do something or has given permission to another to do certain
thing, and if he is injured because of that, he cannot claim damages. For example, A purchases
tickets for a Car race and while watching the race, an collision of cars happens and the person is
injured. Here, by agreeing to watch the race, which is a risky sport, it is assumed that he voluntarily
took on the risk of being hurt in an accident. Thus, he cannot claim compensation for the injury.
Such consent may be implied or express. For example, a person practicing the sport of Fencing with
another, impliedly consents to the injury that might happen while playing.
In Woolridge vs Sumner 1963, the plaintiff a photographer was taking photographs at a horse
show, during which one horse rounded the bend too fast. As the horse galloped furiously, the
plaintiff was frightened and he fell in the course. He was seriously injured. It was held that the
defendants had taken proper care in closing the course and the plaintiff, by being in the show,
agreed to take the risk of such an accident. The defendants were not held liable.
However, the action causing harm must not go beyond the limit of what has been consented. For
example, in a sport of fencing, a person consents to an injruy that happens while playing by the
rules. If he is injured due to an action that violates the rules, he can claim compensation because he
never consented to an injury while playing without rules.
In Laxmi Rajan vs Malar Hospital 1998, a woman consented for a surgery to remove a lump from
her breast. But the hospital removed her uterus as well without any genuine reason. It was held that
removing of her uterus exceed beyond what she had consented for.
Also, the consent must be free. It must not be because of any compulsion. Thus, if a servant was
compelled by the master to do a certain task despite his protests, and if he is injured while doing it,
the master cannot take the defence of volenti non fit injuria because the consent was not free.
Exceptions - In the following conditions, this defence cannot be taken even if the plaintiff has
consented –
Rescue Conditions - When the plaintiff suffers injury while saving someone. For example, A's
horse is out of control and is galloping towards a busy street. B realizes that if the horse reaches the
street it will hurt many people and so he bravely goes and control's the horse. He is injured in doing
so and sue's A. Here A cannot take the defence that B did that act upon his own consent. It is
considered as a just action in public interest and the society should reward it instead of preventing
him from getting compensation.
Unfair Contract Terms - Where the terms of a contract are unfair, the defendant cannot take this
defence. For example, even if a laundry, by contract, absolves itself of all liability for damage to
clothes, a person can claim compensation because the contract is unfair to the consumers.
2.Plaintiff the wrongdoer
A person cannot take advantage of his own wrong. This principle has been in use since a long time
as it is just and equitable. For example, a person trespassing one another's property is injured due to
darkness. He cannot claim compensation because he was injured due to an action which was wrong
on his part. However, this defence exists only if the injury happens because of a wrongful act of the
plaintiff. It does not exist if the injury happens because of a wrongful act of the defendant even if
the plaintiff was doing a wrongful but unrelated act. For example, in Bird vs Holbrook 1828, the
plaintiff was trespassing on the defendant's property and he was hurt due to a spring gun. The
defendant had put spring guns without any notice and was thus held liable.
3.Inevitable Accident
Accident means an unexpected occurrence of something that could not have been predicted or
prevented. In such a case, the defendants will not be liable if they had no intention to cause it and if
the plaintiff is injured because of it. For example, in Stanley vs Powell 1891, the plaintiff and the
defendant were members of a shooting party. The defendant shot a bird but the bullet ricocheted off
a tree and hit the plaintiff. The defendant was not held liable because it was an accident and the
defendant did not intent it and could neither have prevented it.
However, the defence of Inevitable Accident is not a license to negligence. For example, A has
hired B's car. While driving, one of the tires bursts and causes accident injuring A. Here, if the tires
were worn out and were in bad condition, it would be negligence of B and he would be held liable
for A's injuries.
4.Act of God
An act of God in a legal sense is an extraordinary occurrence of circumstance which could not have
been predicted or prevented and happens because of natural causes. Nobody can predict, prevent, or
protect from a natural disaster such an earthquake or flood. Thus, it is unreasonable to expect a
person to be liable for damages caused by such acts of God.
There are two essential conditions for this defence-
  the event must be due to a natural cause and
 it must be extraordinary or something that could not have been anticipated or expected.
For example, heavy rains in the monsoon are expected and if a wall falls and injures someone, it
cannot be termed an act of god because protection for such expected conditions should have been
taken. But if a building falls due to a massive earthquake and injures and kills people, this defence
can be used. In Ramalinga Nadar vs Narayan Reddiar AIR 1971, it was held that criminal
activities of an unruly mob are not an act of God.
5.Private Defence
As per section 96 of IPC, nothing is an offence that is done in exercise of the right of private
defence. Thus, law permits the use of reasonable and necessary force in preventing harm to human
body or property and injuries caused by the use of such force are not actionable. However, the force
must be reasonable and not excessive. In Bird vs Hollbrook 1892, the defendant used spring guns
in his property without notice. It was held that he used excessive force and so was liable for
plaintiff's injury even though the plaintiff was trespassing on his property.
6.Mistake
Generally, mistake is not a valid defence against an action of tort. Thus, hurting a person under the
mistaken belief that he is trespassing on your property, will not be defensible. However, in certain
cases, it could be a valid defence. For example, in the case of malicious prosecution, it is necessary
to prove that the defendant acted maliciously and without a reasonable cause. If the prosecution was
done only by mistake, it is not actionable. Further, honest belief in the truth of a statement is a
defence against an action for deceit.
7.Necessity
If the act causing damage is done to prevent a greater harm, it is excusable. For example, a Ship ran
over a small boat hurting 2 people in order to prevent collision with another ship which would have
hurt hundreds of people is excusable. Thus, in Leigh vs Gladstone 1909, force feeding of a hunger
striking prisoner to save her was held to be a good defence to an action for battery.
8.Statutory Authority
An act that is approved by the legislature or is done upon the direction of the legislature is excused
from tortious liability even though in normal circumstances, it would have been a tort. When an act
is done under the authority of an Act, it is a complete defence and the injured party has no remedy
except that is prescribed by the statute.
In Vaughan vs Taff Valde Rail Co 1860, sparks from an engine caused fire in appellant's woods
that existed in his land adjoining the railway track. It was held that since the company was
authorized to run the railway and since the company had taken proper care in running the railway, it
was not liable for the damage.

9.Judicial or Quasi-Judicial Acts

No action lies for acts done, or words spoken, by a judge in exercise of his judicial office, although
they may be malicious. It is founded on the principle of public benefit that Judges should be at
liberty to exercise their function independently and without fear of consequences. Judicial Officers ’
Protection Act, 1850 grants protection to a judicial officer for any act done or ordered to be done by
him in the discharge of his judicial duty. He is protected even though he exceeds his jurisdiction
provided that at that time he honestly believed that he had jurisdiction to do or order the act
complained of. Section 1 of the Act reads as follows: “ No Judge, Magistrate, Justice of the Peace,
Collector or other person acting judicially shall be liable to be sued in any civil court for any act
done or ordered to be done y him in the discharge of his judicial duty whether or not within the
limits of his jurisdiction: Provided that he at the time in good faith , believed himself to have
jurisdiction to do or order the act complained of; and no officer of any court or other person, bound
to execute the lawful warrants or orders of acting judicially shall be liable to be sued in any civil
court, for the execution of any warrant or order which he would be bound to execute, if within the
jurisdiction of the person issuing the same. ”
1.No such protection is granted if a magistrate is acting mala fide and outside his jurisdiction.
Sailaja Nand Pandey v Suresh Chandra Gupta, AIR 1969 Pat. 194 The magistrate acting mala
fide, illegally and outside his jurisdiction, ordered the arrest of the plaintiff. The Patna High Court
held that he was not entitled to the protection given by the Judicial Officer’ s Protection Act, 1850
and was, therefore, liable for the wrong of false imprisonment.
2.The protection of judicial privilege applies only to judicial proceedings as contrasted with
administrative or ministerial proceedings and where, a judge acts both judicially and ministerial or
administratively, the protection is not afforded to the act done in the later capacity.
State of U.P. v. Tulsi Ram, AIR 1971 All. 162 Five persons were prosecuted for certain offences.
One of them was acquitted by the Sessions Court and another by the High Court. The High Court
upheld the conviction of only three of the five persons and authorised the issue of warrants against
these three convicted persons. The judicial magistrate acting negligently signed an order for the
arrest of all the five persons. As a result of this order, the plaintiffs, even though they had been
acquitted by the High Court, were arrested by the police.
They filed a suit claiming compensation of Rs. 2,000 from the judicial officer and the State of U.P.
stating that their arrest before their relations and friends on the day of Holi festival had caused much
humiliation, disgrace, physical discomfort and mental suffering to them.
The lower appellate court held that the judicial officer was protected by the Judicial Officer ’ s
Protection Act, 1850 but the State of U.P. was vicariously liable and passed a decree of Rs. 500
against the state of U.P.
The Allahabad High Court, on an appeal made by the State of U.P. held that the State was not liable
because the act done by its servant was in the discharge of his duties imposed by law. Further, it
held that the judicial officer was liable for the wrongful arrest of the plaintiff-respondents as the
judicial officer was not exercising any judicial function but only an executive function while issuing
warrants and therefore, the protection under the Judicial Officers’ Protection Act, 1850 could not be
available in this case.
10.Parental or Quasi Parental Authority
Parents and persons in loco parentis have a right to administer punishment on a child for the
purpose of correction, chastisement of training. However, one must remember that such an authority
warrants the use of reasonable and moderate punishment only and therefore, if there is an excessive
use of force, the defendant may be liable for assault, battery or false imprisonment, as the case may
be.
In England, as per Section 1(7), Children and Young Persons Act, 1933, a parent, teacher, or other
person having lawful control or charge of a child or young person is allowed to administer
punishment on him.
In Fitzgerald v. Northcote, (1865) 4 F & F 656, Cockburn C.J. observed: The authority of a
schoolmaster is while it exists, the same as that of parent. A parent, when he places his child with a
schoolmaster, delegates to him all his authority, so far as it is necessary for the welfare of the child
The authority of a teacher to correct his students is: not limited only to the wrongs which the student
may commit upon the school premises but may also extend to the wrongs done by him outside the
school because there is not much opportunity for boy to exhibit his moral conduct while in school
under the eye of the master the opportunity is while he is at play or outside the school.
R. v. Newport (Salop) Justices, (1929) 2 K.B. 416 It has been held that if the school rules
prohibited smoking, both in the school and in the public, the school master was justified in caning a
student whom he had found smoking cigarette in a public street.
Reasonable professional behaviour, rather than perfection, is the norm Eisel v. Board of
Education, (1991) The Maryland High Court ruled that school counsellors were negligent in not
revealing their knowledge of a student ’ s threatened suicide to the child’s parents. The counsellors’
negligence was not for failure to physically prevent the student’s suicide, but rather for not
communicating information regarding the child’s intent.
NOTES
 Unit-III Doctrine of sovereign immunity and its relevance in India

1. Vicarious Liability
2. Torts against persons and personal relations
3. Defamation
4. Parental relations, master and servant relation
5. Malicious prosecution, wrongful confinement
6. Wrongs affecting property
7. Trespass to land
8. Constitutional torts and public liability for victim’s compensation.
 VICARIOUS LIABILITY
Respondeat superior, which literally means “let the master answer,” is a doctrine that holds one
party liable for another’s actions based on their relationship. While commonly applied to hold
employers responsible for certain types of their employees’ actions, this doctrine can also be
relevant in principal/agent relationships. Simple negligence claims (e.g., negligent hiring, negligent
entrustment of an automobile) may also apply in these relationships.
1.Employee/employer relationships: An employer is vicariously liable for the acts of an
employee as long as the employee’s acts are in the scope of employment. Thus, when an employee
acts to further the employer’s business, the employer will be vicariously liable (even for intentional
torts). However, if the employee commits an intentional tort for purely personal reasons unrelated to
the employment, most jurisdictions will not hold an employer vicariously liable. Employers are
vicariously liable, under the respondent superior doctrine, for negligent acts or omissions by their
employees in the course of employment (sometimes referred to as 'scope of employment'). For an
act to be considered within the course of employment, it must either be authorized or be so
connected with an authorized act that it can be considered a mode, though an improper mode, of
performing it. Courts sometimes distinguish between an employee's "detour" vs. "frolic". For
instance, an employer will be held liable if it is shown that the employee had gone on a mere detour
in carrying out their duties, whereas an employee acting in his or her own right rather than on the
employer's business is undertaking a "frolic" and will not subject the employer to liability.
Employer will be held liable if an employer does an authorized act in an unauthorized way
Generally, an employer will not be held liable for assault or battery committed by employees,
unless the use of force was part of their employment (such as a police officer), or they were in a
field likely to create friction with persons they encountered (such as car re-possessors). However,
the employer of an independent contractor is not held vicariously liable for the tortious acts of the
contractor, unless the contractor injures someone to whom the employer owes a non-delegable duty
of care, as when the employer is a school authority and the injured party a pupil.
Employers are also liable under the common law principle represented in the Latin phrase, "qui facit
per alium facit per se" (one who acts through another acts in one's own interests). That is a parallel
concept to vicarious liability and strict liability, in which one person is held liable in criminal law or
tort for the acts or omissions of another.
2.Independent contractor/employer relationships: Generally, employers are not
vicariously liable for acts committed by independent contractors. However, when inherently
dangerous activities or nondelegable duties (e.g.,duty of railroad to maintain safe crossings, duty of
storekeeper to make the premises reasonably safe for customers) are involved, an employer can be
held vicariously liable.
3.Automobile driver/owner relationships: In many jurisdictions, the owner is only
vicariously liable if the driver is on an errand for the owner. However, in some jurisdictions, an
owner is vicariously liable for drivers that are members of the owner’s household as long as the car
is intended for family use. In other jurisdictions, as long as the driver has the owner’s permission to
operate the vehicle, the owner is vicariously liable.
Principals' liability The owner of an automobile can be held vicariously liable for negligence
committed by a person to whom the car has been loaned, as if the owner was a principal and the
driver his or her agent, if the driver is using the car primarily for the purpose of performing a task
for the owner. Courts have been reluctant to extend this liability to the owners of other kinds of
chattel. For example, the owner of a plane will not be vicariously liable for the actions of a pilot to
whom he or she has lent it to perform the owner's purpose. In the United States, vicarious liability
for automobiles has since been outlawed with respect to car leasing and rental in all 50 states.
One example is in the case of a bank, finance company or other lien holder performing a
repossession of an automobile from the registered owner for non-payment, the lien holder has a
non-delegatable duty not to cause a breach of the peace in performing the repossession, or it will be
liable for damages even if the repossession is performed by an agent. This requirement means that
whether repossession is performed by the lien holder or by an agent, the repossessor must not cause
a breach of the peace or the lien holder will be held responsible.
This requirement not to breach the peace is held upon the lien holder even if the breach is caused
by, say, the debtor objecting to the repossession or resists the repossession. In the court case of M
Bank El Paso v. Sanchez, 836 S.W.2d 151, where a hired repossessor towed away a car even after
the registered owner locked herself in it, the court decided that this was an unlawful breach of the
peace and declared the repossession invalid. The debtor was also awarded $1,200,000 in damages
from the bank.
4.Parental liability In the United States, the question of parental responsibility generally and the
issue of parental vicarious liability for the torts of their children is evolving. What is clear is that
parents can be held liable for their own negligent acts, such as failure to supervise a child, or failure
to keep a dangerous instrument such as a handgun outside the reach of their children.
5.The liability of corporations in tort In English law, a corporation can only act through its
employees and agents so it is necessary to decide in which circumstances the law of agency or
vicarious liability will apply to hold the corporation liable in tort for the frauds of its directors or
senior officers.
If liability for the particular tort requires a state of mind, then to be liable, the director or senior
officer must have that state of mind and it must be attributed to the company. In Meridian Global
Funds Management Asia Limited v. Securities Commission [1995] 2 AC 500, two employees of
the company, acting within the scope of their authority but unknown to the directors, used company
funds to acquiresome shares. The question was whether the company knew, or ought to have known
that it had acquired those shares.
The Privy Council held that it did. Whether by virtue of their actual or ostensible authority as agents
acting within their authority (see Lloyd v Grace, Smith & Co. [1912] AC 716) or as employees
acting in the course of their employment (see Armagas Limited v Mundogas S.A. [1986] 1 AC
717), their acts and omissions and their knowledge could be attributed to the company, and this
could give rise to liability as joint tortfeasors where the directors have assumed responsibility on
their own behalf and not just on behalf of the company.
So if a director or officer is expressly authorized to make representations of a particular class on
behalf of the company, and fraudulently makes a representation of that class to a Third Party
causing loss, the company will be liable even though the particular representation was an improper
way of doing what he was authorized to do. The extent of authority is a question of fact and is
significantly more than the fact of an employment which gave the employee the opportunity to
carry out the fraud.
In Panorama Developments (Guildford) Limited v Fidelis Furnishing Fabrics Limited [1971]
2 QB 711, a company secretary fraudulently hired cars for his own use without the knowledge of
the managing director. A company secretary routinely enters into contracts in the company's name
and has administrative responsibilities that would give apparent authority to hire cars. Hence, the
company was liable.
Employees' Continued Liability and Indemnity
A common misconception involves the liability of the employee for tortious acts committed within
the scope and authority of their employment. Although the employer is liable under respondeat
superior for the employee's conduct, the employee, too, remains jointly liable for the harm caused.
As the American Law Institute's Restatement of the Law, Third, Agency § 7.01 states,
An agent is subject to liability to a third party harmed by the agent’s tortious conduct. Unless an
applicable statute provides otherwise, an actor remains subject to liability although the actor acts as
an agent or an employee, with actual or apparent authority, or within the scope of employment.
6.State Liability : Under the English Common Law the maxim was "The King can do no wrong"
and therefore, the King was not liable for the wrongs of its servants. But, in England the position of
old Common law maxim has been changed by the Crown Proceedings Act, 1947. Earlier, the King
could not be sued in tort either for wrong actually authorised by it or committed by its servants, in
the course of their employment. With the increasing functions of State, the Crown Proceedings Act
had been passed, now the Crown is liable for a tort committed by its servants just like a private
individual. Similarly, in America, the Federal Torts Claims Act, 1946 provides the principles, which
substantially decides the question of liability of State.
In ancient India, under the Hindu jurisprudence, it was an undisputed principle that no one is
exempted from the operation of law. This liability to equal punishment extended even to the king,
relative of the king, a judge or an ordinary citizen. The rule of law was considered supreme and
binding on everyone alike. The important functions of the king were concerned with protection of
people, punishment of crimes and maintenance of dharma or social order.
In the medieval Indian history the personal liability of officers for their wrongs was more vogues
with evidences showing equality between the ruler and the ruled subject. Only when the king
considered it proper to undertake the burden of public officer, it was then the state treasury used to
pay the compensation. Dharma was considered the administrative law binding the king as well as
the subjects. Both in Hindu law and Muslim law, the rulers themselves administered justice as far as
possible and the rest was done by the exceptionally learned and honest judges. The most significant
recent trend has been an assertion on the part of the court that it has a power to grant compensation.
The principle of personal liability of public servants for wrongs done to citizens is already a part of
Indian law based on English case laws.
Presently State liability in India is defined by the Article 300(1) of the Constitution that originated
from Section 176 of the Government of India Act, 1935. This could be traced back from the Section
32 of the Government of India Act, 1915, the genesis of which can be found in Section 65 of the
Government of India Act, 1858. It will thus be seen that by the chain of enactment beginning with
the Act of 1858, the Government of India and Government of each State are in line of succession of
the East India Company. In other words, the liability of the Government is the same as that of the
East India Company before, 1858.
7.Sovereign Functions: Sovereign functions are those actions of the state for which it is not
answerable in any court of law. For instance, acts such as defence of the country, raising and
maintaining armed forces, making peace or war, foreign affairs, acquiring and retaining territory,
are functions which are indicative of external sovereignty and are political in nature. Therefore, they
are not amenable to jurisdiction of ordinary civil court. The State is immune from being sued, as the
jurisdiction of the courts in such matters is impliedly barred.
The distinction between sovereign and non-sovereign functions was considered at some length in N.
Nagendra Rao v. State of AP. All the earlier Indian decisions on the subject were referred to. The
court enunciated the following legal principles, in its judgment:
In the modern sense, the distinction between sovereign or non-sovereign power thus does not exist.
It all depends on the nature of the power and manner of its exercise. Legislative supremacy under
the Constitution arises out of constitutional provisions. The legislature is free to legislate on topics
and subjects carved out for it. Similarly, the executive is free to implement and administer the law.
A law made by a legislature may be bad or may be ultra vires, but, since it is an exercise of
legislative power, a person affected by it may challenge its validity but he cannot approach a court
of law for negligence in making the law. Nor can the Government, in exercise of its executive
action, be sued for its decision on political or policy matters. It is in public interest that for acts
performed by the State, either in its legislative or executive capacity, it should not be answerable in
torts. That would be illogical and impractical. It would be in conflict with even modern notions of
sovereignty.
Pre-Constitution Judicial Decisions:
1.Peninsular & Oriental Steam Navigation Company v Secretary :
A consideration of the pre-Constitution cases of the Government’s liability in tort begins with the
judgment of the Supreme Court of Calcutta in the case. P. & O. Steam Navigation Co. v.
Secretary of State. The principle of this case holds that if any act was done in the exercise of
sovereign functions, the East India Company or the State would not be liable. It drew quite a clear
distinction between the sovereign and nonsovereign functions of the state.
As the facts of the case go, a servant of the plaintiff-company was proceeding on a highway in
Calcutta, driving a carriage which was drawn by a pair of horses belonging to the plaintiff. He met
with an accident, caused by negligence of the servants of the Government. For the loss caused by
the accident, the plaintiff claimed damages against the Secretary of State for India.
The Supreme Court observed that the doctrine that the ‘King can done wrong’, was applicable to
the East India Company. The company would have been liable in such cases and the Secretary of
State was thereafter also liable. This arose out of the section 65, Government of India Act, 1858,
which equated the liability of the Secretary of State for India with that of the East India Company.
Distinguishing between sovereign and non-sovereign functions it was held that if a tort were
committed by a public servant in the discharge of sovereign functions, no action would lie against
the Government – e.g. if the tort was committed while carrying on hostilities or seizing enemy
property as prize.
This doctrine of immunity, for acts done in the exercise of sovereign functions, was applied by the
Calcutta High Court in Nobin Chander Dey v. Secretary of State. The plaintiff in this case
contended that the Government had made a contract with him for the issue of a licence for the sale
of ganja and had committed breach of the contract. The High Court held that upon the evidence, no
breach of contract had been proved. Secondly even if there was a contract, the act had been done in
exercise of sovereign power and was thus not actionable.
Secretary of State v. Hari Bhanji,In this case, the Madras High Court held that State immunity was
confined to acts of State. In the P & O Case, the ruling did not go beyond acts of State, while giving
illustrations of situations where the immunity was available. It was defined that Acts of State, are
acts done in the exercise of sovereign power, where the act complained of is professedly done under
the sanction of municipal law, and in exercise of powers conferred by law. The mere fact that it is
done by the sovereign powers and is not an act which could possibly be done by a private individual
does not oust the jurisdiction of the civil court.