Prof Farheen Ansari

B.Com, CS, LLB, PGDIPR Law of Torts

LAW OF TORTS
INTRODUCTION:

TORT FRENCH WRONG

ROMAN DELICT
LATIN

ENGLISH WRONG

TORTUM

Tort means wrong, but every wrongful act is not tort

Wrongs in Law

Public wrong Private wrong

Violate public law Wrongs against an

and is an offence individual

Tort is a civil wrong, not including breach of contract OR breach of trust.

TORT:
 civil injury, other than breach of contract,
 injury or harm to another
 amounts to civil wrong
 The wrong doer will have to provide remedy
to the injured party
 by way of compensation or damages
 the person committing a tort is called tort-feasor or wrong doer and
 his act is called tortuous act.
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

DEFINITIONS OF TORT:

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 obligation.”

Fraser defines tort as,

“an infringement of a right in rem of a private individual giving right of

compensation at the suit of the injured party.”

RIGHTS

Right in Rem Right in Personam

Right against the whole Right against an

WORLD INDIVIDUAL

Winfield says:

“Tortious liability arises from the breach of duty, primarily fixed by law; this
duty is towards persons generally and its breach is redress able by an action
for unliquidated damages”.

Two important derivation from the definition:

Tort is a species of civil injury

that every civil wrong is not a
of wrong as opposed to a
tort
criminal wrong
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

ELEMENTS OF TORT

1. There must be a 2. The wrongful act give 3. Remedy shall be

wrongful act committed rise to legal damage action for compensation
by a person

1. WRONGFUL ACT:

 When one person does any wrongful act to another, affecting legal rights of
the other person, is said to have committed Tort.

Right of bodily safety Loss of reputation/ Right to Property

and freedom Defamation

2. LEGAL DAMAGES:

 Not every damage is a damage in the eyes of law.

 There must have been a legal injury or invasion of legal rights of the other
person.

 If your legal rights are affected= legal damages shall be given, even if you
haven’t suffered actual loss.
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

2 Latin Maxims:

DAMNUM SINE INJURIA INJURIA SINE DAMNUM

Damage without Injury Injury without Damage

This maxim explains that there are This maxim explains that there are
instances when damage (harm/loss) is instances when there is no actual
caused, but there is not Legal injury damage (harm/loss) caused, but there
done. is Legal injury done.

Thus, it doesn’t cover under Tort and no Thus, it covers under Tort and action can
action can be brought. be brought.

Case Law: Case Law:

Gloucester Grammar School case Ashby v/s White [Voters case]

3. LEGAL REMEDY:

 “Ubi jus ebi remedium” ~ where there is a right, there is a remedy

 If legal rights is affected, legal remedy is given.

 Remedies under torts are:

 Unliquidated damages
 Injunction
 Specific restitution of property
 Self help
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

Difference between
Contract and Tort

Contract Tort
It is found upon consent It is inflicted without consent

There is a privity (relation) between There is no privity between the parties

parties

Breach of contract is violation of Tort is violation of right in rem

right in personam

Here, the duties are fixed as per the Here, the duties are imposed by law
terms of contract

The duty imposed is Specific The duty imposed is General

Motive of breach is immaterial Motive is important to determine

Damages are fixed according to Damages are unliquidated damages

the contract decided by the court
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

Difference between
Crime and Tort

Crime Tort
It is violation of public rights and It is violation of civil or individual rights
affects the whole community

Here, the action is brought in the Here the action is brought by the injured
name of state party

Wrongdoer is punished by the law Wrongdoer has to compensate the

injured party

Crime involves mens rea (guilty Tort has no mens rea

mind)

What is mens rea?

Guilty Mind

 It means GUILTY MIND.

 The General Principle lies with latin maxim,

‘actus non facit reum nisi mens sit rea’ meaning
‘a person is guilty of criminal act only if he had criminal intention’

 An act done with malice mind, is a criminal act.

 Thus in order to constitute crime, Mens Rea must be identified.

In Tort, intention is
less important than
negligence
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

KINDS OF TORTIOUS LIABILITY

(A) STRICT OR (B) VICARIOUS (C) VICARIOUS

ABSOLUTE LIABILITY LIABILITY LIABILITY OF THE STATE

A. STRICT OR ABSOLUTE LIABILITY:

 Here, the defendant is liable even though the harm to the plaintiff occurred
without intention or negligence on defendant’s part.

 In short, defendant is liable without fault.

Ex. When you are driving, and you jump a signal, not because
you dint see the signal or you intended to break the signal.
It was simply because you had no knowledge of the traffic
signal. Still, in this case you will be liable absolutely under
the Motor Vehicles Act.

These cases fall under the following categories:

i) Liability for inevitable (unavoidable) accident:
Such liability arises in case where damage is done by the escape of dangerous
substance brought or kept by anyone upon his land.

Such case is where a man is made by the law an “insurer” of

other against the result of activities

ii) Liability for inevitable (unavoidable) mistake:

Such cases are where a person interferes with the property or
reputation of another.
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

iii) Vicarious liability for the wrongs committed by others:

Responsibility in such cases is imputed by law on the grounds of social policy or
expediency. These case involve liability of master for the acts of his servant.

Landmark Case: Rylands v/s Fletcher

A mill owner employed an independent contractor to construct a reservoir of water
on his land to provide water to his mill. The contractor noticed some unused shafts
(hollo portion underground) and filled them with rubbish and did not blocked them.
When the water was filled in the reservoir, it busted through the shafts and flooded
the plaintiff’s coal mine on the adjoining land.

It was found that the mill owner was not aware of the shaft, and had not been
negligent. It was the mistake of the Independent Contractor.

But applying the rule of Strict Liability, the mill owner was liable to the plaintiff.

Later in the case of Read v/s Lyons, it has

been explained that 2 conditions are
required to apply the rule of Rylands v/s
Fletcher:

1. The Dangerous substance stored at

Defendant’s premise should escape which
causes mischief

2. There must be non-natural use of land

Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

Exceptions to the Rule of Strict Liability: (Defense for the Defendant)

1. Damage due to Natural Use of Land

The defendant will not be liable if the land was used for
“natural use”. Like storing water on one’s land for general
use is the natural use of the land.

In Ryland’s v/s Fletcher, the land was used for non-natural purpose of constructing a
reservoir. Thus, the defendant was liable.

Things which are not dangerous to have on one’s own land such as installation of
water pipes, wiring for electric lights, etc fall under Natural Use of land.

2. Consent of the plaintiff

Where plaintiff was consented to the accumulation of the dangerous thing on

defendant’s land, and which was for the common benefit of both parties, then the
defendant will not be liable

Ex. A water tank was constructed with consent of Plaintiff on his roof, from which water
will be used by both plaintiff and defendant. Eventually the rats gnawed (bite) the
water tank and the tank burst, causing damage to the plaintiff.

Can the plaintiff bring action against the defendant? No, because the plaintiff himself
gave the consent to build the water tank on its roof top.

3. Act of third party

If an act is caused by a stranger, who is neither defendant’s servant nor agent, neither
the defendant has any control over the stranger, in this case the Defendant will not
be liable for any damage to the plaintiff.

Ex. “A” a neighbor emptied the water from his tank into the tank of “B”, without his
permission and knowledge
B’s tank got overflowed and burst, causing damage to C.

Can C take action against B, because of his overflowed tank, his property was
damaged? No, because it was an act of a stranger, whose knowledge B never had.

4. Statutory Authority

When the damage is caused in consequence of an act done in the interest of Public
by Public Authority, like storing water, gas or electricity, will be exempted from liability
if reasonable care was taken.
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

5. Act of God

If the escape is caused, through natural cause and without

human intervention such as flood, storm, cyclone,
earthquake etc then there will be no liability.

6. Escape due to plaintiff’s own default

When the damage by escape is caused due to plaintiff’s own mistake, then the
defendant will not be liable.

Ex. If it was the duty of the plaintiff to fence his land and if he failed to fence, then if
the defendant’s cattle trespassed plaintiff’s property, then plaintiff cannot take any
action

Applicability of the Rule in Rylands v. Fletcher in Cases of Enterprises Engaged in

a Hazardous or Inherently Dangerous Industry.

The Supreme Court discussed the Rylands v. Fletcher case

in M. C Mehta V/s UOI while determining the principles on
which the liability of an enterprise engaged in a hazardous
or inherently dangerous industry depended if an accident
occurred in such industry.

Held that;

-WE cannot take reference of the law that prevails in

England or any other foreign country

-Enterprises engaged in dangerous and hazardous

process are responsible for the health and safety of the
people working in the factory and residing nearby.

-As the industries are engaged in such hazardous

activity, they have obligation to provide for the safety as well and maintain high
standard of safety.

-Thus, if any damage is caused due to their activities, irrespective of their reasonable
care and precautions, they shall be ABSOLUTELY liable, even if they were not
negligent.
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

B. VICARIOUS LIABILITY:

Vicarious Liability:
General Rule: a person may be held
Tortfeasor is liable for liable for the wrong
his tort committed by other

A) PRINCIPAL AND AGENT:

PRINCIPAL
-“Qui facit per alium facit per se”-
He who does the act through other
Does it himself. VICARIOUSLY LIABLE FOR THE ACT OF

-A Principal is vicariously liable for the

act of his agent AGENT

-If the agent commits any wrong in the ordinary course of his duties, the
principal shall be liable.

B) PARTNERS:

-Every Partner is an Agent, as well as Principal of the Firm

-A tort committed by a partner, in the ordinary course of the business, makes all the
partners liable.

-The liability of partners in a firm is joint as well as several.

C) MASTER AND SERVANT:

-“Respondeat Superior” ~ Let the superior be held responsible

-A master is liable for the tort committed by his servant, in the course of employment.

D) EMPLOYER AND INDEPENDENT CONTRACTOR:

-An Independent contractor is a person who independently, using his own mind and skills
completes a task, without intervention of the Employer.

-Therefore, an employer is not liable for the torts of independent contractor

Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

But when the Employer will be liable for the acts of

Independent Contractor?
a) When the employer authorizes him to commit
the tort
b) In torts of strict liability But when the Employer will NOT be
c) Negligence of Independent Contractor liable for the acts of Independent
Contractor?

If he has taken due care in the

appointment of the contractor

Case Law:

In Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board (1942)
A.C. 509,
the director of a petrol lorry, while transferring petrol from the lorry to an underground
tank at a garage, struck a match in order to light a cigarette and then threw it, still
alight on the floor. An explosion and a fire ensued. The House of Lords held his
employers liable for the damage caused, for he did the act in the course of carrying
out his task of delivering petrol; it was an unauthorized way of doing what he was
employed to do.
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

C. VICARIOUS LIABILITY OF THE STATE:

THE POSITION IN ENGLAND THE POSITION IN INDIA

Earlier, there was a rule in England, In India, whether the Government is

“The King can do no wrong” and the liable for the torts of its employee,
King was above the law and was never depends upon the function:
held liable. i) If wrong committed in discharging
Sovereign functions: NO LIABILITY
But later with passing of The Crown
Proceeding Act, 1947, even the Crown ii) If wrong committed in discharging
(king) is liable for the torts of his servant Non-Sovereign functions: LIABLE

Sovereign Functions of Non-Sovereign

the STATE Functions of the STATE

-Defense -Transportation
-Police -Hospital

The whole idea of Vicariously Liability of the State for the torts committed by its servants is
based on three principles:

• Respondeat superior (let the principal be liable).

• Qui facit per alium facit per se (he who acts through another does it himself).

• Socialization of Compensation.

The position of State liability as stated in Article 300 of the Constitution:

-the Government of India may sue or be sued by the name of the Union of India
and the Government of a State may sue or be sued by the name of the State;
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

TORTS OR WRONGS TO PERSONAL SAFETY AND FREEDOM:

An action for damage lies if following kinds of wrong or tort is committed to the
person or the property:

(a) BATTERY:

-direct application of force by one person to another, without his consent or lawful
justification is called Battery

-To constitute battery, 2 things must be present:

 Use of force without plaintiff’s consent
 Without lawful justification

-Even to touch a person in anger amounts to battery.

(b) ASSAULT:

-An act which causes apprehension (fear) in the mind of other is called Assault.

-When a person creates a fear in the mind of the other, that he is

going to commit battery, then Assault is committed.

-When there is a battery, there will be an assault committed.

Ex. Point a loaded gun at the plaintiff, shake a fist under his nose,
curse him or threaten him, aim to blow or throw something sharp object or weapon.

(c) BODILY HARM:

-A wilful act (or statement) of defendant, calculated to cause physical

harm to the plaintiff and in fact causing physical harm to him, is a tort.

(d) FALSE IMPRISONMENT:

-It means imposition of total restraint for some period, without lawful justification.

-It also means unauthorized restraint of a person’s body.

-It is a serious violation of personal right and liberty.

-If a man is restrained, by threat from leaving his own house, it

will amount to false imprisonment.
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

(e) MALICIOUS PROSECUTION:

-It means instigating judicial proceedings against a person, maliciously (bad intent) to
either cause the other person:

 Loss of reputation
 Personal freedom or property

-Because of the malicious prosecution, the plaintiff must have suffered some damage, it
amounts to tort.

(f) NERVOUS SHOCK :

-It provides relief when a person may get physical injury not by an impact,
e.g., by stick, bullet or sword but merely by the nervous shock through
what he has seen or heard.

-Causing of nervous shock itself is not enough to make it an actionable

tort, some injury or illness must take place as a result of the emotional
disturbance, fear or sorrow.

(g) DEFAMATION :

Defamation is an attack on the reputation of a person.

LIBEL SLANDER
Defamation is a
tort as well as
Published/Written Oral defamatory crime in India.
defamatory statements statements damaging
damaging one’s one’s reputation Section 499 of
reputation IPC recognizes
Libel and Slander
Prof Farheen Ansari
B.Com, CS, LLB, PGDIPR Law of Torts

REMEDIES UNDER TORT:

Judicial Remedies Extra-Judicial

Remedies

 Damages  Self Defense

 Injunction  Prevention of Trespass

 Specific Restitution of  Re-entry on land

Property
 Re-caption of Goods

 Abatement of Nuisance

 Distress Damage Feasant (cattle

seizure)

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the Professor herein does not accept any liability, intended or unintended in respect of this report.