LAW OF TORTS INCLUDING MV ACCIDENTS AND CONSUMER

PROTECTION LAWS – SALB1104

UNIT 1 – GENERAL INTRODUCTION

Nature and Definition:

 The word tort has been derived from the Latin term ‘tortum’ which means twisted or
crooked.
 Tort in general means a conduct which is not lawful and it is equivalent to the meaning
‘wrong’.
 The law provides a person with certain legal rights and when they are been violated by the
other person due to some wrongful act it leads to certain damages. Similarly, the Law of
Torts consists of various wrongful acts which are termed as torts and the wrongdoer thereby
violates the legal rights vested to another person.
 The Indian Law of Torts is a fragment of the English Common law which is based upon
the decisions and opinions of the Judges and renowned proponents.
Few important definitions of Torts:
1.) “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust”
– Section 2(m) of the Limitation Act, 1963
2.) “It is a civil wrong for which the remedy is a common law action for unliquidated damages
and which is not exclusively the breach of a contract or the breach of a contract or the
breach of a trust or other merely equitable obligation” – Salmond
3.) “Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is
towards persons generally and its breach is redressible by an action for unliquidated
damages” - Winfield

It can be observed form the above definitions that the following are included in a tort:
 It is a civil wrong
 It is a civil wrong other than the breach of contract or a breach of trust
 The wrong is redressible by action for unliquidated damages
a.) Tort – A Civil wrong:
Tort is categorised as a civil wrong which is differentiated form the criminal wrongs. The
plaintiff (victim) here initiates a civil suit against the defendant (wrongdoer) for the damage
caused and he is compensated.
b.) Civil wrong other than the breach of trust or a breach of contract:
 Tort is considered to be a civil wrong which does not fall into any of the other categories
like breach of contract or breach of trust (fiduciary relationship). Thus once a wrong id
 identified as a civil wrong it has to be identified whether it is under any of these two
categores and if not it can be decided as a tort.
 It has to be notices that a civil wrong can include two or more tortious acts.
c.) Redressible by action for unliquidated damages:
 Damages in case of tort are unliquidated where there is no predetermination of the loss or
the compensation. The damages here are not determined or liquidated as in other sorts of
breach of contract or of trust.
 Also the damages and quantum of loss and compensation are determined on the discretion
of the court and are not prefixed

Differences

Tort Crime

Private wrong Public wrong

The elements are determined for every civil The elements of crime subject to the
wrong particular kind
Civil proceedings are brought against the Prosecutions are brought against state
defendant or wrongdoer who is an individual
Compromise can be arrived at any stage of Compromise or settlement cannot be arrived
tort between the parties or individuals at any stages of crime
involved
Remedy involves monetary compensation Remedy involves punishmnent and fine

Tort Breach of Contract

Breach of duty imposed by law on the subjects Breach of duty agreed by the parties
of the State themselves upon an agreement
Duty is not based on Privity of contract Duty is based on Privity of contract
Damages are unliquidated Damages are liquidated

Essentials of a Tort:
The essentials to constitute a tort are listed as follows:
1. There must be some act or omission on the part of the defendant
2. The act or omission should have resulted in a legal damage as a violation of the legal right
vested in the plaintiff
1. Act or Omission:
 In tort to make person liable there must have
 Either committed an act which he is not supposed to do, or (Eg. Defaming a person)
 Omitted to do an act which he is supposed to (Eg. Behaving negligently in a duty)
  Tort is said to have been committed when someone have done a positive wrongful act or
omitting a rightful act.
 Such wrongful act or wrongful omissions must be legally recognized and no liability can
be invoked when they are morally or socially recognized ones.
Glasgow Corpn. V. Taylor: The Corporation who were vested with a duty to maintain a public
park, failed their duty to properly fence a poisonous tree. As a result of this a child eats the
poisonous fruit and dies. The Corporation was hence made liable for omission of duty of
maintenance.
Municipal Corpn. Of Delhi v. Subhagwanti: It was observed by the Court that the Delhi
Municipal Corpn. Were liable for their negligence. They did not properly maintain a clock tower
and it fell down and killed a number of people.
2. Legal Damage:
 The plaintiff has to prove that there was a wrongful act which involves an act or an
omission which resulted in the breach of the legal duty or the violation of the legal right
vested to the plaintiff.
 In an action for tort initiated by the plaintiff it has to be proved that there has been a legal
damage caused to him by the defendant.
 An action for the tort can be initiated only when there is a legal violation and depending
on whether the plaintiff has suffered a legal damage or not.
 The factor of legal damage here is decided by two maxims; where Injuria means an
infringement of right and Damnum means substantial damage or loss

a) Injuria sine damnum

b) Damnum sine injuria
The test to determine whether the defendant is liable or not depends predominantly on whether the
lawful right provided to the plaintiff is violated or not and not whether the person has suffered any
loss or damage.
a) Injuria sine damnum
 The maxim means violation of a legal right without causing any loss or damage to the
plaintiff.
 In such instances there is no proof needed to prove that the plaintiff has suffered a loss or
a damage and the only thing which has to be proved is that there was a violation of the
legal right of the plaintiff.
 These kinds of torts are actionable per se (i.e.) actionable at the very instance without any
proof of damage or loss.
Eg. Trespassing at the very instance is a tort and actionable even without any proof of loss
or damage
Ashby v. White: In this case the plaintiff who was a qualified voter to the Parliamentary election
was prevented from voting in the elections by the defendant who was a Returning officer. Later
on initiating an action against the defendant, it was held that there is no loss suffered by the plaintiff
actually but his legal right of voting was violated and hence made the defendant liable.
Bhim Singh v. State of J&K: The petitioner who was the MLA of J&K was wrongfully detained
by the police and his constitutional right under Article 21 and the constitutional right of attending
the elections was violated by the defendants. The defendants were made liable and also an
exemplary award of Rs. 50,000/- was given to the defendant.
b) Damnum sine injuria
This means that the damage to the plaintiff is not coupled with a violation or an unauthorized
interference of the plaintiff’s right.
There is no liability or action for the damage caused to the plaintiff even when the damage is of
any extend as there is no violation of any lawful thing vested with the plaintiff
It happens at times when the lawful right is exercised by the defendant and results in a damage to
the plaintiff. Even though the damage was caused intentionally but a legal right was exercised by
the other party then no action for claim can be made by the affected party.
Gloucester Grammar School case: Defendant, a school headmaster set up a rival school near the
plaintiff’s school. The fee was reduced to 12 pence from 40 pence. The court held there is no
remedy to the loss suffered by the plaintiff as there is no violation of the legal rights vested to him.
Mogul Steamship Co. v. McGregor Gow & Co.: The plaintiff’s tea trading company was driven
out of the trade by a number of steamship companies who jointly provided reduced freight. The
House of Lords held that the plaintiff has no cause of action as the defendants’ act was lawful to
extend their trade and get increased profit.
Ushaben v. Bhagyalaxmi Chitra Mandir: The plaintiff’s sued the defendant for exhibiting the
film named ‘Jai Santhosi Maa’ considering it to hurt the religious feelings of them. The court
observed that the hurt to religious feelings has not been recognized as a legal wrong. Since there
is no legal right violation here no permanent injunction is sanctioned.
Town Area Committee v. Prabhu Dayal: The plaintiff has constructed 16 shops at an old building
even without abiding by the necessities mentioned under the UP Municipalities Act. The
defendants have demolished the construction for which the plaintiff brought a civil suit claiming
compensation for the damage and also mentioned that the demolition of the plaintiff’s shops were
intentional and mala fide. It was held that the defendants are not liable as the construction was
illegal and no injuira was in existence on the part of the defendants.
Pagadala Narasimham v. Commissioner: In this case the plaintiff’s bus which was not in a
working condition was parked on the road causing disturbance and traffic at the road. So it was
removed with the help of the municipal workers. Plaintiff sued the Corporation claiming to have
caused damage. It was held the defendants have acted legally and have discharged their duty, no
liability on them.
Mental Element in Tort
 The mental element also known as the intention is a significant element in most of the
forms of the crime. The presence of the mere mental intention known as ‘mens rea’ to
commit an offence is punishable under criminal law.
 Whereas the guilty mind to commit an act is not of such generalization in tort.
Fault when not relevant: (State of mind)
 The state of mind is considered to be relevant to determine the liability under various forms
of torts like assault, battery, deceit, malicious prosecution, etc.
 With regard to such form of torts the mental element of malicious intention is taken into
consideration along with the conduct of the defendant. To determine the liability the
conduct of the defendant is compared with that of a reasonable man.
 Mental element under tort becomes relevant when the defendant has to take reasonable
care but failed to do so then he would be liable for negligence. Similarly when the
defendant has acted innocently without any malicious intention but has a necessity to do
such an act then he cannot be made liable.
Liability without fault
There are certain instances where the relevance of mental element is not taken into consideration
and the liability arises. Eg. Tort of conversion, defamation, vicarious liability, etc.

Malice in Law and Malice in fact

The term malice has been interpreted in two different senses as:
a) Malice in law:
 In legal sense, which means a wilful act done without a just (reasonable) cause or an excuse
 This includes a wrongful act which is done intentionally but without any proper reasonable
or justifiable cause or an excuse.
 Malice in law therefore is an intentional unlawful act but there is no evil or ill motive in
such an act.
Eg. Random physical assault on a person which is in contravention with law but no actual
or ulterior motive behind.
b) Malice in fact –
In general sense, means involving an evil or bad motive within. The defendant does a wrongful act
with an ill will or a spite of vengeance within.
Motive here means the ultimate reason for committing an act and it differs from the malicious
intention which is a wrongful act by itself.
The general rule of torts is motive is not relevant in determining the liability of a person. A
wrongful act does not become legal just because it involves a good motive and a legal act does not
become wrongful as it involves malice or bad motive.
Eg. A person commits theft at a shop in order to help the starving kids. Here the motive for theft
is to feed the kids.
Town Area Committee v. Prabhu Dayal: The plaintiff has constructed 16 shops at an old building
even without abiding by the necessities mentioned under the UP Municipalities Act. The
defendants have demolished the construction for which the plaintiff brought a civil suit claiming
compensation for the damage and also mentioned that the demolition of the plaintiff’s shops were
intentional and mala fide. It was held that the defendants are not liable.
South Wales Miners’ Federation v. Glamorgan Coal Co.: In this case the defendants, coal
miners’ union ordered the workers of the plaintiff’s coalmine to take holidays which was unlawful
as per their contract of employment. The plaintiff brought a suit against the defendants along with
its workers. The House of Lords held the defendants liable though the defendants were without an
evil motive the act of them was unlawful.
Exceptions to the Rule:
There are certain exceptional cases where the evil motive or malice are considered for determining
the liability of the defendants.
 When the act is otherwise unlawful and the wrongful intention can be derived from the
circumstances of the case
 In certain torts like deceit, conspiracy, malicious prosecution, etc. where the one such
essential is malice of the defendant
 In cases of defamation where defence of fair comment is pleaded, motive becomes relevant.
 When unlawful motive causes nuisance or personal discomfort
 When malice or bad motive has aggravated damages.

***