Law of Torts – UNIT I: Revision Notes for LL.B – First Year
Introduction to the Law of Torts
The word tort is of French origin and is equivalent of the English word wrong. It is derived from the Latin word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked. Tort is commonly used to mean a breach of duty amounting to a civil wrong.
Salmond defines tort as a civil wrong for which the remedy is a
common law action for unliquidated damages and which is not exclusively the
breach of a contract or the breach of a trust or other merely equitable
A tort arises due to a person’s duty to others which is created by one law or the other. A person who commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one, they are called joint tortfeaser. Their wrongdoing is called tortuous act and they are liable to be sued jointly and severally.
The principle aim of the Law of tort is compensation for victims or their
dependants. Grants of exemplary damages in certain cases will show that
deterrence of wrong doers is also another aim of the law of tort.
Evolution of Law of Torts in India
The law of torts in India is mainly the English law of torts which is based on the principles of the ‘common law’. This was made suitable to the Indian conditions in accordance with the principles of justice, equity and good conscience. However, the application of tort laws in India is not a very regular event and one can even go to the extent of commenting that tort as a law in India is far from being looked upon as a major branch of law and litigation. In the Indian legal system, the concept of ‘punishment’ occupies a more prominent place than ‘compensation’ for wrongs.
It has been argued that the development of law of tort in India need not be on the same lines as in England.
In M.C. Mehta v. Union of India, Justice Bhagwati said, “we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”
Objectives of Law of Torts
- to determine the rights between parties to dispute
- to protect certain rights recognized by law
- to prevent the continuation or repetition of a harm
- to restore the property to its rightful owner
Scope of Tort
Tort & Contract
- In a contract, the parties fix the duties themselves whereas in torts, the law fixes the duty.
- A contract stipulates that only the parties to the contract can sue and be sued on it (privity of contract) while in tort, privity is not needed in order to sue or be sued.
- In the case of contract, the duty is owed to a definite person(s) while in tort, the duty is owed to the community at large i.e. duty in- rem.
- In contract remedy may be in the form of liquidated or unliquidated damages whereas in tort, remedies are always unliquidated.
Tort & Crime
- In tort, the action is brought in the court by the injured party to obtain compensation whereas in crime, proceedings are conducted by the state.
- The aim of litigation in torts is to compensate the injured party while in crime; the offender is punished by the state in the interest of the society.
- A tort is an infringement of the civil rights belonging to individuals while a crime is a breach of public rights and duties, which affect the whole community.
- Parties involved in criminal cases are the Prosecution verses the Accused person while in Torts, the parties are the Plaintiff versus the Defendant.
Constituents of Tort
The law of tort is an instrument to enforce reasonable behavior and respect the rights and interests of one another. A protected interest gives rise to a legal right, which in turn gives rise to a corresponding legal duty. An act, which infringes a legal right, is wrongful act but not every wrongful act is a tort.
To constitute a tort or civil injury therefore:
- There must be a wrongful act or omission.
- The wrongful act or omission must give rise to legal damage or actual damage and;
- The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages.
The wrongful act or omission may however not necessarily cause actual damage to the plaintiff in order to be actionable. Certain civil wrongs are actionable even though no damage may have been suffered by the plaintiff.
01. Wrongful Act
An act or omission that prejudicially affect one’s legal right. Such legally violative wrongful act is called as actus reus. Thus, liability for a tort arises when the wrongful act amounts to either an infringement of a legal private right or a breach.
An act, which at first, appears to be innocent may become tortuous if it invades the legal right of another person e.g. the erection in one’s own land which obstructs light to a neighbors’ house. Liability for a tort arises when the wrongful act amounts to an infringement of a legal right or a breach.
The sum of money awarded by court to compensate damage is called damages. Damage means the loss or harm caused or presumed to be suffered by a person as a result of some wrongful act of another. Legal damage is not the same as actual damage.
The real significance of legal damage is illustrated by two maxims namely:
Injuria sine damno and Damnum sine injuria
Injuria sine damno (Injury without damage)
It means violating of a legal right without causing any harm, loss or damage to the plaintiff. There are two kinds of torts: firstly those torts which are actionable per se, i.e. actionable without the proof of any damage or loss. For instance, trespass to land, is actionable even though no damage has been caused as a result of the trespass.
Secondly, the torts which are actionable only on the proof of some damage caused by an act. For successful actions the only thing which has to be proved is that the plaintiff’s legal right has been violated, i.e. there is injuria.
Case Law: Refusal to register a voter was held as and injury per-se even when the favorite candidate won the election – Ashby Vs. White (1703). This rule is based on the old maxim of law, Ubi jus ibi remedium, which means that where there is a right, there is a remedy.
Damnum sine injuria (Damage without injury)
It means “There may be an injury inflicted without any act of injustice.” There is another term like it that is “damnum absque injuria“, which means damage or harm without an injury in the legal sense. In other words a loss or injury to someone which does not give that person a right to sue the person causing the loss.
In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles was annoyed by the refusal of Bradford Corporation to purchase his land for their water undertaking. Out of spite, he sank a shaft on his land, which had the effect of discoloring and diminishing the water of the Corporation, which percolated through his land. The House of Lords held that the action of Pickles was lawful and no matter how ill his motive might be he had a right to act on his land in any manner that so pleases him.
In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship owners combined together. In order to drive a ship-owner out of trade by offering cheap freight charges to customers who would deal with them. The plaintiff who was driven out of business sued the ship-owner, for loss caused to him by their act. The court held that a trader who is ruined by legitimate competition of his rivals could not get damages in tort.
03. Remedy – Development of Ubi jus ibi Remedium
The law of torts is said to be a development of the maxim ubi jus ibi remedium (there is no wrong without a remedy). Whenever the common law gives a right or prohibits an injury, it also gives a remedy. It is an elementary maxim of equity jurisprudence that there is no wrong without a remedy.
The maxim means only that legal wrong and legal remedy are correlative terms.
A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. The essential remedy for a tort is an action for damages, but there are other remedies also e.g., injunction, restitution, etc.
In the case of Abbot v. Sullivan, the court held that there is a right to receive a time-barred debt but there is no remedy to recover it.
Foundations of Tortious Liability
Tortious liability arises from the breach of a duty primarily fixed by the law: such duty is towards persons generally and its breach is compensated by an action for unliquidated damages.
• Theory 1: By Winfield – Law of Tort – General Liability: all injuries done to another person are torts, unless there be some justification recognized by the law
• Theory 2: By Salmonds – Pigeon Theory – Law of Torts: there is a definite number of torts (assault, battery, defamation) outside which liability in tort does not exist
Rougher, J., described in the case of John Munroe (Acrylics) Ltd. v. London Fire and Civil Defence Authority, “It is truism to say that we live in the age of compensation. There seems to be a growing belief that every misforture must, in pecuniary terms at any rate, be laid at someone else’s door, and after every mishap, the cupped palms are outstretched for the solace of monetary compensation.”
General Elements of Torts
Act & Omission
To constitute a tort, there must be a wrongful act. The word “act” is used to include both positive and negative acts i.e., acts and omissions. Wrongful acts which make a person liable in tort are positive acts and sometimes omissions. They must be distinguished from natural calamities, and even from mere thoughts and intentions.
Failure to do something in doing an act is a bad way of performing the act. For example, if a lawyer gives an opinion without taking notice of the change in law brought about by a reported decision of the Supreme Court, he would not be guilty of an omission but of performing the act of giving his opinion in a bad way.
Where as an omission is failure to do an act as a whole. Generally, the law does not impose liability for mere omissions. An omission incures liability when there is a duty to act. For example, a person cannot be held responsible for the omission of not rescuing a stranger child whom he sees drowning even though he can rescue him without any appreciable exertion or risk of harm to himself. But the result would be different if a parent or guardian is failed to attempt to rescue the child. In that case, it would be an omission as there is a duty to act.
Voluntary Acts & Involuntary Acts
A voluntary act may be distinguished from an involuntary act as only voluntary acts have liability. Voluntary act can be understand based on its willed mascular contraction, its circumstances and its consequences. For example, an act of murdering a person by shooting at him is one act and not merely the muscular contraction of pressing the trigger.
An involuntary act does not give rise to any liability. For example, an involuntary act of trespass is not a tort.
Omissions like positive acts may also be voluntary or involuntary.
In the case of Olga Tellis v. Bombay Municipal Corporation, the Supreme Court held that the encroachments committed by those persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice.
A voluntary act can be held in strict liability if there’s a presence of required mental element i.e., malice, intention, negligence or motive in addition to the other necessary ingredients of the torts are present.
o Malice in Law and in Fact
Malice means spite or ill-will. However, in law malice has two distinct meanings such as: 1. Intentional doing of a wrongful act and 2. Improper motive. In the first sense, malice is synonymous with intention and in the second sense, malice refers to any motive which the law disapproves.
Malice with an intention of wrongful act is called as Malice in Law. It is also called as implied malice. In a legal sense, malice means a wrongful act, done intentionally, without just cause or excuse. For example, if a person give a perfect stranger a blow likely to produce death, the person do it out of malice because, he do it intentionally and without just cause or excuse.
Malice with an improper motive is called as Malice in fact. It is also called as express malice. Malice in fact is liable for malicious prosecution.
Wrongful acts of which malice is an essential element are:
- Malicious prosecution
- Willful and malicious damage to property
o Intention, Negligence and Recklessness
Intention is an internal fact, something which passes in the mind and direct evidence of which is not available. There’s a popular saying that it is common knowledge that the thought of man shall not be tried, for the devil himself knoweth not the thought of man.
In general terms, negligence is “the failure to use ordinary care” through either an act or omission. That is, negligence occurs when:
- somebody does not exercise the amount of care that a reasonably careful person would use under the circumstances; or
- somebody does something that a reasonably careful person would not do under the circumstances.
Motive is the ulterior object or purpose of doing an act. It differs from intention in two ways. First, intention relates to the immediate objective of an act, whereas, motive refers to the ulterior objective. Secondly, motive refers to some personal benefit of satisfaction which the actor desires whereas intention need not be so.
For example, When A poisons B, the immediate objective is to kill B and so this is A’s intention. The ulterior objective of A may be to secure B’s estate by inheritance or under a will executed by him and this objective will be A’s motive. Motive is generally irrelevant in tort.
In the case of Mayor & Co. of Bradford v. Pickles, A sank a well on his land and thereby cut off underground water-supply from his neighbour B, and B’s well was dried up. It was not unlawful for a land-owner to intercept on his own land underground percolating water and prevent it from reaching the land of his neighbour. The act did not become unlawful even though A’s motive in so doing was to coerce B to buy his land at his own price. A, therefore, was not liable to B, however improper and malicious his motive might be.
o Malfeasance, Misfeasance, Non-feasance
The term “Malfeasance” applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of intention or motive.
The term “Misfeasance” is applicable to improper performance of some lawful act for example when there is negligence.
The term “non-feasance” applies to the omission to perform some act when there is an obligation to perform it. Non-feasance of gratuious undertaking does not impose liability, but misfeasance does.
- M.C. Mehta v. Union of India
If mental elements such as intention, negligence, malice or motive together with an act or omission which is violative of a right recognized by law plays an important role in creating liability. Such tortious liability has an element of fault to support it. But there is a sphere of tortious liability which is known as absolute or strict liability, where the element of fault is conspicuously absent.
In the case of M.C. Mehta v. Union of India, the rule of strict liability is laid down that an enterprise engaged in a hazardous or inherently dangerous activity is strictly and absolutely liable for the harm resulting from the operation of such activity.