Introduction to the Study of Torts

 The word ‘tort’ is the French equivalent of the English word ‘wrong’
and the Roman term ‘delict’.
 It is derived from the Latin word ‘Tortum’, which means ‘twisted’ or
‘crooked’ act, i.e. a deviation from straight or right conduct.

n Jai Laxmi Salt Works (P) Ltd. V. State of Gujarat (1994) 4 SCC 1

n “Truly speaking, the entire law of Torts is founded and structured on

morality that no one has a right to injure or harm intentionally or innocently.
Therefore, it would be primitive to class strictly or close finally the ever-
expanding and growing horizon of tortuous liability. Even for social
development, orderly growth of the society and cultural refineness, the
liberal approach to tortuous liability by courts is more conducive” - Sahai, J. .

Definitions

N Section 2 (m) Limitation Act, 1963

n “Tort is a civil wrong which is not exclusively breach of contract or breach

of trust”.

n Salmond

n “A tort is a civil wrong for which the remedy is a common law action for
Unliquidated damages and which is not exclusively the breach of a contract,
or the breach of a trust, or the breach of other merely equitable obligation.”

n Fraser

n “A tort is an infringement of a right in rem of a private individual, giving a

right of compensation at the suit of the injured party.”

n Winfield

n “Tortious liability arises from the breach of duty primarily fixed by law; this
duty is towards persons generally and its breach is redressible by an action
for Unliquidated damages.”
Concepts

Person: Definition

 A person is any being whom the law regards as capable of rights and
duties | Salmond
 A person is an entity on which rights and duties may be attributed |
Erray
 These two definitions show that personality is linked with the
conception of right.

• NaturalPerson A natural person is a being to whom the law attributes

personality by reality and truth.

Legal Person Legal persons are real or imaginary beings to whom the law
attributes personality through fiction when there is none.

n Liability

 Liability arises from a breach of duty or a wrong. A person must do or

suffer because he/she fails to do what he should have done (duty).
 A person has a choice in fulfilling his duty, whereas liability arises
independently of one’s choice.
 Tort | Crime : Distinction+

In Re: Destruction of Public and Private Properties

V
State of Andhra Pradesh
2009 Indlaw SC 757

While assessing the recommendations of the committee headed by Mr. F S

Nariman, the Supreme Court identified the relationship between Torts
and Crimes as follows:

•"There is a connection between tort and crime - the purpose of the criminal
law is to protect the public interest and punish wrongdoers, the purpose of
tort-law is to vindicate the rights of the individual and compensate the victim
for loss, injury or damage suffered by him: however - the distinction in
purpose between criminal law and the law of tort is not entirely crystal-clear,
and it has been developed from case-to-case. The availability of exemplary
damages in certain torts (for instance) suggest an overtly punitive function -
but one thing is clear: tort and criminal law have always shared a deterrent
function in relation to wrongdoing.”

Law of Crimes

n Crime is more severe wrong.

n In the case of crime, one must prove both acts and intentions.

Exception: Doctrine of Strict Liability

n The criminal proceedings against the wrongdoer are not brought by the
injured party but by the State.

Exception: Section 354 – Defamation - Bharatiya Nyaya Sanhita

Law of Torts

n A tort is a less serious wrong.

n Generally speaking, intention is not essential to make one liable under the
Law of Torts.

Exception: Doctrine of Strict Liability

n A tort is a private wrong, and the injured party has to file a suit as a
plaintiff.

Exception: Public Interest Litigation

Law of Torts

Law of Crimes

n In general, the compounding of an offence is considered unlawful.

Exception: Section 359, Bharatiya Nagarik Suraksha Sanhita lists

compoundable offences and the persons by whom particular offences are
compoundable.
n The compromise with the tortfeasor and withdraw the suit he filed.

plaintiff may agree to

Law of Torts

n The object of the law is the payment of compensation, i.e. to make good
the loss he suffered.

Exception: Under Section 58 Bharatiya Nagarik Suraksha Sanhita, a

judgment debtor may be arrested and imprisoned for executing a decree. If
the decree is satisfied, such a person is released even before a fixed term
expires.

Law of Crimes

n The object of law is the punishment of the offender.

Exception: Section 395 Bharatiya Nagarik Suraksha Sanhita, even a

Criminal Court, while passing judgment, may order that the injured party be
paid compensation out of the fine imposed.

Wrong Amounts To Both – A Tort & A Crime

n Sometimes, the same set of facts may constitute both a tort and a crime.
Such wrongs are called as “Felonious Torts”.

nThe civil and criminal remedies in such a case are not alternative but
are concurrent.

n Illustration:
n Defamation, Negligence, Nuisance etc.

Tort | Contract : Distinction

Violation of ‘right in rem.’, The duty is primarily fixed

tViolation of ‘right in personam.’

nThe duty is fixed by the parties to the contract with their free consent

n Damages may be liquidated or Unliquidated.bylaw

n Damages are Unliquidated.always

Wrong Amounts To Both – A Tort & A Breach of Contract

q Due to a driver's negligence, a railway passenger is injured, the railway

authorities are liable for the breach of the contract of safe carriage, and
there is also a tort of negligence which caused damages to the passenger.

q If I leave my horse with my neighbour for one week and go out and the
neighbour allows the horse to die of starvation, there is a breach of contract
since the bailee has failed to exercise due care in the matter, and the bailee
has also committed the tort of negligence.

qHe has a choice either to sue for the breach of contract or the commission
of tort.

q One must remember that the plaintiff cannot claim the damages twice
over.

The Doctrine of Privity of Contract and Exception

Winterbottom v. Wright(1842) 10 M & W. 109

n When A’s wrongful act results in the breach of a contract which he had
entered into with B and the commission of a tort against C, it was thought
that just like B, C also has to show Privity of the contract before he can bring
an action for tort.

n This rule lost its sanctity in 1932.

Donoghue v. Stevenson (1932) A.C. 562

nA went to a restaurant with a woman friend and bought one bottle of ginger
beer manufactured by the defendants. The woman consumed part of the
contents, but when the remainder was poured into the glass, she observed
the decomposed body of a snail.

n The ginger beer bottle, being made of dark opaque glass and sealed with a
metal cap, the presence of snails could not have been observed earlier.

n The woman brought an action against the manufacturer for negligence and
alleged that by taking part in the contaminated drink, she had contracted a
serious illness.
nThe House of Lords held that the manufacturer owed her a duty to ensure
the bottle did not contain noxious matter injurious to health.

n Regarding the liability of the manufacturer of food articles, Lord

Macmillan observed: “The duty, in my opinion, he owes to those whom he
intends to consume his product”.

Tort | Essentials

n What Constitutes a Tort?

There must be some act or omission on the part of the defendant.

The act or omission should result in legal damage (Injuria), i.e. violation of
a legal right vested in the plaintiff.

‘Act’ or ‘Omission’

nIn order to make a person liable for a tort, he must have done some act
which he was not expected to do, or, he must have omitted to do something
he was supposed to do.

n One must note that the wrongful act or a wrongful omission must be
recognized by law. If there is a mere moral or social wrong, there cannot be
a liability for the same.

n Illustration:

• A commits the act of trespass or publishes a statement defaming another

person or wrongfully detains another person; he can be made liable for
trespass, defamation or false imprisonment, as the case may be.

Glasgow Corporation v. Taylor (1922) 1 A.C. 44

n If a corporation which maintains a public park fails to put proper fencing to

keep the children away from a poisonous tree and a child plucks and eats the
fruits of the poisonous tree and dies, the Corporation would be liable for such
omission.

Municipal Corporation of Delhi v. Subhagawanti AIR 1966 SC 1750

n The Municipal Corporation, having control of a clock tower in the heart of

the city, does not keep it in proper repairs, and the falling of the same results
in the death of several persons; the Corporation would be liable for its
omission to take care in the matter.

‘Fault ’|‘Negligence’ | ‘Wrongful Intent’

n Liability of A Person

n Intentional aggression upon another’s person or property

n Negligent interference with another’s person or property

n Unintended, non- negligent interference with person or property, i.e.

‘no fault liability’ or ‘strict liability.’

Intention

n Intention is an internal fact that passes in the mind, and direct evidence of
it is unavailable.

n An act is intentional as to its consequences if the person concerned has the

knowledge that they would result and also the desire that they should result.

n Negligence constitutes an independent basis of tort liability. It means it

creates a risk of causing damage rather than the state of mind.

n According to Winfield, “negligence as a tort is the breach of a legal duty

to take care which results in damage, undesired by the defendant to the
plaintiff”.

Negligence

‘Injuria | Legal Injury’

n To succeed in an action for tort, the plaintiff has to prove that legal
damage has been caused to him.

n In other words, unless there has been a violation of a legal right, there can
be no action under the law of torts.

Injuria Sine Damnum Damnum Sine Injuria

Tort
Actionable On Proof Of Damage

n Trespassing to land is actionable even though no damage has been caused

by the trespass.

n If a tenant makes improvements to the property leased without the right to

do so, the tenant commits the tort of waste and is liable for damages even
though the premises may be improved and rendered more valuable by the
alterations.

‘Injuria Sine Damnum’

nInjuria | Infringement of a right conferred by law on the plaintiff or an

unauthorised interference, howsoever trivial, with the plaintiff’s right

n Damnum | Substantial harm, loss or damage in respect of money,

comfort, health or the like

n Sine | Without
n It means violating a legal right without causing harm, loss or damage to
the plaintiff.

Ashby v. White (1703) 2 Lord Raym 938

n The plaintiff was a qualified voter in a Parliamentary election. The

defendant, a returning officer, wrongfully refused to take the plaintiff’s vote.
The Plaintiff suffered no damage as the candidate he wanted to vote for won
the election despite that. The defendant was held liable.

n The Court of King’s Bench, by majority, rejected the claim. Holt C. J.

dissented: “Surely every injury imports a damage, though it does not cost
the other party one farthing, and it is impossible, to prove the contrary; for a
damage is not merely pecuniary but an injury imports a damage when a man
is thereby hindered of his rights.”

n The majority upheld Hold C. J.’s dissent on appeal to the House of Lords.
The defendant was held liable.

Bhim Singh v. State of J. & K. AIR 1986 SC 494

n The petitioner, an M.L.A. of Jammu & Kashmir, was wrongfully detained by

the police while he was going to attend the Assembly session. Further, he
was not produced before the Magistrate within the requisite period.
nAs a consequence of this, he was deprived of his constitutional right to
attend the Assembly session. There was also a violation of the fundamental
right to personal liberty guaranteed under Article 21 of the Constitution.

n By the time the petition was decided by the Supreme Court, Bhim Singh
had been released, but by consequential relief, exemplary damages
amounting to Rs. 50,000 were awarded to him.

R. v. Deputy Governor of Pankhurst Prison, ex p. Hague [1992] 1 A.C.

58

n Mr Watkins was a prisoner serving a sentence of life imprisonment. Three

prison officers acting in bad faith opened and read his incoming
correspondence relating to legal proceedings, both actual and contemplated.

n Their conduct was outside the privilege of opening a prisoner's

correspondence conferred by the Prison Rules. These Rules do not confer
private rights upon prisoners.

nTheir conduct made Mr Watkins no worse off; the trial judge concluded
that he “appears to thrive on these conflicts”.

R. v. Deputy Governor of Pankhurst Prison, ex p. Hague [1992] 1 A.C.

58

nThe Court of Appeal, overturning the trial judge's decision, held that
misfeasance in a public office was actionable in damages where the
defendant had interfered with a “constitutional” right, here the claimant's
right to access to court.

n The House of Lords unanimously allowed the appeal, requiring that the
claimant establish loss before the claim could be brought.

‘Damnum Sine Injuria’

Gloucester Grammar School Case (1410) Y.B. Hill 11 Hen, 4 of 47, P.21,
36

n ‘Damnum Sine Injuria’ means ‘damage is not coupled with an

unauthorised interference with the plaintiff’s lawful right.

n The defendant, a schoolmaster, set up a rival school to that of the

plaintiffs. Because of the competition, the plaintiffs had to reduce their fees
from 40 pence to 12 pence per scholar per quarter. Thus, they claimed
compensation for the loss caused.

n It was held that the plaintiffs had no remedy for their loss.

Mogul Steamship Co. V. McGregor Gow and Co. (1893) A.C. 25

n Several steamship companies combined and drove the plaintiff company

out of the tea-carrying trade by offering reduced freight.

nThe House of Lords held that the plaintiff had no cause of action as the
defendants had acted by law to protect and extend their trade and increase
their profits.

Ushaben v. Bhagyalaxmi Chitra Mandir AIR 1978 Guj. 13

nThe plaintiff contended that the film “Jai Santoshi Maa” hurt the religious
feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi, and Parvati
were depicted as jealous and were ridiculed and thus sued for a permanent
injunction against the defendants to restrain them from exhibiting the film.

n It was observed that hurt to religious feelings had not been recognised as a
legal wrong.

n Moreover, no person has a legal right to enforce his religious views on

another or to restrain another from doing a lawful act merely because it did
not fit in with the tenets of his particular religion.

nThe petitioner, a license holder of a petty diesel dealer in the village

Majhole District Moradabad, has filed this writ petition challenging the
advertisement for the grant of another license published in a newspaper for
the same village.

nHis grievance is that the demand for diesel is not such as requiring an
additional license for the sale of diesel, and if such a license is granted, it will
damage his business.

n The Court held that ‘The letter is from the Government to all the District
Magistrates of this State, whereby guidelines for granting a license of petty
diesel dealer, have been laid down. The petitioner cannot enforce those
guidelines. It is a matter between the Government and its District
Magistrates. This letter does not confer any right on the petitioner to
challenge the new license grant to another person.’

Om Saran v Sub-Divisional Magistrate, Chandausi, Moradabad and

Another 1994 Indlaw ALL 301

n The appellant claimed that setting up a rival cinema house in the town
would adversely affect his monopolistic commercial interest, causing
pecuniary harm and loss of business from the competition and thus
challenged the grant of the no-objection certificate issued to the respondent.

n The Supreme Court held that ‘such harm or loss is not wrongful in the eye
of the law, because it does not result in injury to a legal right or a legally
protected interest, the business competition causing it is a lawful activity.

n Juridically, the harm of this description is called ‘Damnum sine Injuria’’.

n It further held that ‘The reason why the law suffers a person knowingly to
inflict harm of this description on another, without holding him accountable
for it, is that such harm done to an individual is again to society at large’.

Messrs Northern Plastics Limited v Hindustan Photo Films

Manufacturing Co. Limited 1997 Indlaw SC 1018

n As Respondent is permitted to set up a retail outlet within a one-kilometre

radius of the appellant's outlet, he complained that his business interest
would be adversely affected.

nThe Madras High Court held that the appellant has no locus standi at all to
complain against the setting up of a rival retail outlet by the fourth
respondent near his place of business, on the ground that would affect his
business interest since the damage if any, suffered thereby was Damnum
sine Injuria-damage without infringement of a legal right.

n It further held that ‘this will only promote competition among the traders,
which is good for the consumers. Merely because some customers may
switch to the rival retail outlet does not mean that public interest will suffer;
rather, in our opinion, it will benefit the consumers because, when there is
competition, the businessmen are compelled to provide better quality
products at reasonable rates.’
N. Balasubramaniam and Others v Government of Tamil Nadu and
Others 2007 Indlaw MAD 1323

‘Ubi Just Ibi Remedium’

n Ubi Just Ibi Remedium – ‘Where there is a right, there is the remedy.’

n This principle explains the right of an injured person to damage, which

brings such wrongful acts within the category of torts.

n Whenever the right is violated, the person whose right has been infringed
has a remedy against the person who has violated it.

n It should be noted that the maxim does not mean that there is a legal
remedy for every moral or political wrong.

‘Malfeasance’ | ‘Misfeasance’ | ‘Nonfeasance’+

n Nonfeasance: The term ‘non-feasance’ applies to the omission to perform

some act when there is an obligation.

n Misfeasance: The term ‘misfeasance’ applies to the improper

performance of some lawful act, for example, when there is negligence.

n Malfeasance:The term ‘malfeasance’ applies to the commission of an

unlawful act.

 It generally applies to unlawful acts, such as trespass, which are

actionable per se and do not require proof of intention or motive.