Fraser - Tort in an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.

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1 Q. Define Tort and Law of Tort. Discuss its nature. What are its various ingredients? What conditions must be satisfied before a liability in Tort arises? "A tort is a civil injury but all civil injuries are not Torts". Explain. Distinguish between Tort and Crime. How many kinds of Torts are there? The word tort has been derived from the latin word "tortum" which means to twist. In general, it means conduct that adversely affects the legal right of others and is thus, "wrong". For a healthy society it is necessary that it be free of anti-social elements and that an individual should have freedom to exercise his rights without being restricted by others. Further, if there is a transgression of any right, there must be a way to compensate or to restore the right. This is essentially what the maxim, "Ubi just ibi remedium" implies. Where ever there is a right, there is a remedy. Indeed, a right has no value if there is no way to enforce it. Such rights of individuals primarily originate from two sources - contractual obligations and inherent rights that are available to all the citizens against every other citizen, aka rights in rem. While the violation of contractual right has clear remedy that arises from the contract itself, the violation of rights that are available to all the persons in general does not have a clear remedy because there is no explicit contract between the two parties. Such violations are called wrongs and it is for such wrongs that the law of torts has been developed. For example, one has a right against all other persons to be free of noise in the night. If somebody starts playing music loudly, then he violates one's right to be noise free. He is, thus, doing a wrong and even though there is no contract between the two, one can sue him for damages. There can be innumerable types of acts that can transgress the rights of others and it is not possible to come up with a definition that can accommodate all the cases. However, the following are some definitions from the experts - Salmond - A tort is a civil wrong for which the remedy is action in common law for unliquidated damages and which is not exclusively a breach of contract or breach of trust or other equitable obligation. Winfield - Tortious liability arises from the breach of duty primarily affixed by law. The duty is towards persons in general and its breach is redressable by an action for unliquidated damages. Fraser - Tort in an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party. Thus, it can be seen that tort is an act while the law of tort is the branch of law that provides relief to the person who has been injured due to a tortious act. From the above definitions, it is clear that the nature of a tort is that it is a civil wrong. However, not all civil wrongs are torts. For example, breach of contract and breach or trust are civil wrongs but are not torts because their remedies exist in the contract itself. To determine if a particular act is a tort or not, we must first make sure that it is a civil wrong. We should then make sure that it is NOT a breach of contract or breach of trust. Historically, crime and tort originated from the same root. Later on, they separated on the account that a crime does not only affect the victim but also to the society as a whole to a great extent. Thus, the branch of law that deals with criminal conduct evolved a lot faster than the branch of law that deals with torts. The nature of tort can be understood by distinguishing it from crime and contractual civil liabilities. It can be said that tort is the residual of wrongful acts that are not crime and that do not fall under contractual liabilities. Thus, if a wrongful act is neither crime nor a violation of a contract, it may fall under tort. The damages are unliquidated and are decided only by the common sense of the courts. The following differences between Tort and Crime and Tort and Breach of Contract, shows the true nature of Tort.

2 Distinction between Tort and Breach of Contract Tort Tort occurs when the right available to all the persons in general (right in rem) is violated without the existence of any contract. Victim is compensated for unliquidated damages as per the judgment of the judges. Thus, damages are always unliquidated. Duty is fixed by the law of the land and is towards all the persons. Doctrine of privity of contract does not apply because there is no contract between the parties. This was held in the case of Donaghue vs Stevenson Tort applies even in cases where a contract is void. For example, a minor may be liable in Tort. Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to the victim. In Bhim Singh vs State of J K AIR the plaintiff was awarded exemplary damages for violation of his rights given by art 21. Breach of Contract A breach of contract occurs due to a breach of a duty (right in persona) agreed upon by the parties themselves. Victim is compensated as per the terms of the contract and damages are usually liquidated. Duty towards each other is affixed by the contract agreed to by the parties. Only the parties within the privity of contract can initiate the suit. When a contract is void, there is no question of compensation. For example, a contract with a minor is void ab initio and so a minor cannot be held liable for anything. Justice is met only by compensating the victim for actual loss. In the case of Donaghue vs Stevenson 1932, A purchased ginger beer in a restaurant for his woman friend. She drank a part of it and poured the rest into a glass. Thereby, she saw a dead snail in the drink. She sued the manufacturer. It was held that the manufacturer had a duty towards the public in general for making sure there are no noxious things in the drink even though there was no contract between the purchaser and the manufacturer. The same principal was applied in the case of Klaus Mittelbachert vs East India Hotels Ltd AIR In this case, Lufthansa Airlines had a contract with Hotel Oberoi Intercontinental for the stay of its crew. One of the co-pilots was staying there took a dive in the pool. The pool design was defective and the person's head hit the bottom. He was paralyzed and died after 13 yrs. The defendants pleaded that he was a stranger to the contract. It was held that he could sue even for the breach of contract as he was the beneficiary of the contract. He could also sue in torts where plea of stranger to contract is irrelevant. The hotel was held liable for compensation even though there was no contract between the person and the hotel and the hotel was made to pay 50Lacs as exemplary damages. Distinction between Tort and Crime Tort Tort occurs when the right available to all the persons in general (right in rem) is violated without the existence of any contract. Act is comparatively less serious and affects only the person. Intention is usually irrelevant. It is a private wrong. Crime Tort occurs when the right available to all the persons in general (right in rem) is violated and it also seriously affects the society. Act is comparatively more serious and affects the person as well as the society. Intention is the most important element in establishing criminal liability. A crime cannot happen without Mens Rea. It is a public wrong.

3 Since it is a private wrong the wronged individual must file a suit himself for damages. The suit is for damages. Compromise is possible between the parties. For example, a person who has been defamed, can compromise with the defamer for a certain sum of money. Compounding is possible. Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to the victim. In Bhim Singh vs State of J K AIR the plaintiff was awarded exemplary damages for violation of his rights given by art 21. Tortious acts are usually not criminal acts. Since it is a public wrong, the suit is filed by the govt. The suit is for punishment. There is no compromise for the punishment. For example, if a person is guilty of murder, he cannot pay money and reduce his sentence. Compounding is generally not possible. Justice is met by punishing the aggressor by prison or fine. In some specific cases as given in IPC compensation may be given to the victim. Several criminal acts such as assault and battery are also grounds for tortious suit. Ingredients of Tort (Conditions that must be satisfied before a liability in Tort arises.) There are three essential elements for an act to be liable under Tort. 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 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 carefuly is liable under tort. However, if the worshipers stop going to a temple and thereby cause 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 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. For example, 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. This is explained in the maxim - Injuria Sine Damno. Injuria Sine Damno - Ashby vs White 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 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. 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. Damnum Sine Injuria -

4 Glaucester Grammar School's case 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 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 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. Harm due to negligence - A person is not liable in tort even if he causes harm due to negligence but does not cause injury. In Dickson vs Reuter's Telegram Co 1877, the defendant company delivered a telegram that was not meant for the plaintiff to the plaintiff. Based on the telegram, the plaintiff supplied some order which was not accepted by the sender of the telegram. Plaintiff suffered heavy losses and sued the defendant company. It was held that the company owed a contractual duty only to the sender of the telegram and not to the receiver. Hence they were not liable. Harm due to malice - If a person has not caused an injury even if he does an act with malice, he is not liable. In Bradford Corporation (mayor of) vs Pickles 1895, the defendants sunk a shaft in their own land which caused the water to become discoloured and unsuitable for the plaintiff. It was held that even if the defendant did it with malice, he had not violated any right of the plaintiff and hence was not liable. 4. Legal Remedy - Historically, a person whose legal right was violated was allowed to sue only upon a permission from the King. There were only certain predefined torts for which the king's permission could be obtained. Thus, it was necessary to have legal remedy for that particular violation before an action for damages could be started. However, now, such a requirement is not there. It has been accepted that there can be many kinds of torts and if a violation of a legal right has happened, the person is enttitled to sue. Kinds of Torts As mentioned before there can be innumerable type of acts that violate the legal right of others. The law of tort is therefore ever evolving. New ways in which the rights are violated come to light everyday. However, they can be classified on the basis of way of incurrment of liability into the following three categories - 1. Intentional - Wrongful acts that are done intentionally, irrespective of with or without malice, belong to this category. For example, torts such as assault, battery, trespass to land, false imprisonment are intentional torts. 2. Negligent Conduct - Wrongful acts that are done without any intention but because of not taking proper care that is required by law fall into this category. 3. Strict Liability - Acts that are neither done intentionally nor do involve any negligence, but still cause an injury to other are liable under the concept of strict liability as propounded in Rylands vs Fletcher. In strict liability cases, the defendant is liable even if it acted reasonably. There are 3 types of strict liability cases: 1- keeping wild animals 2- dangerous, legal activities such as blasting roads 3- the manufacture of products (products liability) Torts can also be classified according to the type of damage - 1. Physical Torts - Causing physical hurt to body such as assault, battery. It can happen with intention or even with negligence.

5 2. Abstract Torts - Causing damage to mind or reputation such as defamation. 3. Tort involving property - For example, Trespass to land. 4. Tort involving legal right - For example, false imprisonment. 5. Nuisance - Causing unreasonable restriction towards exercise of one's legal right. 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 obligation. 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 1. In a contract, the parties fix the duties themselves whereas in torts, the law fixes the duty. 2. 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. 3. 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. 4. In contract remedy may be in the form of liquidated or unliquidated damages whereas in tort, remedies are always unliquidated. Tort & Crime 1. 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.

6 2. 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. 3. 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. 4. 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: 1. There must be a wrongful act or omission. 2. The wrongful act or omission must give rise to legal damage or actual damage and; 3. 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. 02. Damage 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. Case Laws: 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

7 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. Case Law: 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 Case Law: 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.

8 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. Mental elements 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: Defamation 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. In the case of Dulieu Vs. White & Sons (1901), the plaintiff, a pregnant woman, was sitting behind the counter of her husband?s bar when suddenly a horse was driven into the bar. Fearing her personal safety, she suffered nervous shock and gave birth to a premature baby. In the circumstances, the court held that the plaintiff was entitled to recover in negligence. Recklessness is also called as gross negligence. Gross negligence means conduct or a failure to act that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result. It is sometimes necessary to establish gross negligence as opposed to ordinary negligence in order to overcome a legal impediment to a lawsuit. For example, a government employee who is on the job may be immune from liability for ordinary negligence, but may remain liable for gross negligence. o Motive 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.

9 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 o Fault 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. The following two tabs change content below. Q. Describe general exceptions regarding Torts that are not actionable / General Defences for Torts. Even when a plaintiff provides proof for the existance 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 an 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 watching 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 a 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

10 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 - 1. Rescue Conditions - When the plaintiff sufferes 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. 2. 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 springgun. The defendant had put spring guns without any notice and was thus held liable. 3. Inevitable Accident Accident means an unexpected occurance 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 bulled 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 occurance 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 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 condtions for this defence - the event must be due to a natural cause and it must be extraordinary or some thing 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 earhquake 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 is not an act of God.

11 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 a 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. Q. What are the torts relating to the absolute liability? What are its kinds? What is Ryland vs Fletcher rule? What are its exceptions? Is this rule applied in India in present circumstances? If not, why? In certain situations, a person is held liable for the damages caused by his actions even when the actions are done without any ill intention or negligence on account of equity and justice. For example, if a person keeps a lion for a pet and despite of all the precautions the lion escapes the cage and kills someone. In this case, the owner of the lion will be liable even though he had no ill intention to cause death and had taken all the precautions to keep the lion in the cage. This seems just because the damage happened only because he brought a dangerous thing on his property. He was also aware of the consequences if the lion escapes the cage and so he should be made liable if it escapes and causes damage. This principle of holding a person liable for his actions without any kind of wrong doing on his part is called the principle of absolute liability or no fault liability. This principle was first upheld in the case of Ryland vs Fletcher by the privy council in However, later on some exceptions to this were also established due to which "strict liability" is considered a more appropriate name for this principle. In this case, the defendant hired contractors to build a reservoir over his land for providing water to his mill. While digging, the contractors failed to observe some old disused shafts under the site of the reservoir that lead to plaintiff's mine on the adjoining land. When water was filled in the reservoir, the water flooded the mine through the shafts. The plaintiff sued the defendant. The defendant pleaded that there was no intention and since he did not know about the shafts, he was not negligent even though the contractors were. Even so, he was held liable. J Blackburnobserved that when a person, for his own purposes, brings to his property anything that is likely to cause a mischief if it escapes, must keep it at his peril and if it escapes and causes damage, he must be held liable. He

12 can take the defence that the thing escaped due to an act of the plaintiff or due to vis major (act of God) but since nothing of that sort happened here, then it is unnecessary to inquire what excuse would be sufficient. To this rule promulgated by J Blackburn, another requirement was added by the Court of Exchequer Chamber, that the use must be a non-natural use of land as was the case in Ryland vs Fletcher itself. For example, growing of regular trees is a natural use but growing poisonous trees is not. Keeping dogs as pet is a natural use but keeping wild beasts is not. Thus, the conditions when this rule will apply are - 1. The thing kept must be dangerous - The thing kept on the land must be as such as is likely to cause mischief if it escapes. For example, storing gas or explosives or wild beasts are all likely to cause damage if they escape. 2. The thing must escape - If the thing is within the boundary of the defendant's land, he is not liable. The thing must escape out of his land for him to be liable. In Crowhurst vs Amersham Burial Board 1878, branches of a poisonous tree were hanging outside the land of the defendant. Plaintiff's cattle ate them and died. Defendant was held liable because protrusion of branches out side his property were considered as escaping from his property. However, in Ponting vs Noakes 1994, when the plaintiff's horse intruded over his boundary and ate poisonous leaves of the defendant's tree, he was not held liable because there was no escape. 3. The thing must be a non natural use of land - The use must not be an ordinary use of the land. There must be a special purpose because of which it brings additional danger to other. In Noble vs Harrison 1926, a branch of a tree growing on defendant's land broke and fell on plaintiff's vehicle. It was held that growing regular trees is not a non natural use of land and the branch fell because of an inherent problem and not because of any negligence of the defendant and so he was not liable. As mentioned before the following are exceptions or defenses against this rule - 1. Plaintiff's own default - If the thing escapes due to plaintiff's fault the defendant cannot be held liable. In Eastern and South African Telegraph Co. Ltd. v Capetown Tramway Co the plaintiff's submarine cable transmissions were disturbed by escape of electric current from defendant's tramway. It was held that since the current was not causing any problem to regular users and it was causing problem to the cables only because they were too sensitive and so the defendant cannot be held liable. One cannot increase his neighbor's liabilities by putting his land to special uses. 2. Act of God - In circumstances where no human has control over, no one can be held liable. In Nichols vs Marsland 1876, the defendant created artificial lakes to store rainwater. In that particular year, there were exceptionally heavy rains, which caused the embankments to break causing floods, which broke defendant's bridges. It was held that since there was no negligence on the part of the defendant and the flood happened only because of rains so heavy that nobody could imagine, the defendant was not liable. 3. Consent of the plaintiff - If the plaintiff has consented for the accumulation of the dangerous thing, he cannot hold the defendant liable. This is also the case when an activity is done for mutual benefit. For example, A lives on the ground floor and the defendant lives on the floor above A's. Now, a water tank is built by the defendant to supply water for both of them. The defendant will not be held liable for leakage of water fro m the tank. 4. Act of third party - When a third party, who is not an employee or a servant or a contractor of the defendant is responsible for causing the dangerous thing to escape, the defendant will not be held liable for the damage. In Box vs Jubb 1879, the overflow from the defendant's reservoir was caused by the blocking of a drain by some strangers. The defendant was held not liable. However, if such act can be foreseen, this defence cannot be pleaded because the defendant must take precautions to prevent such an act. In M.P. Electricity Board vs Shail Kumar AIR 2002, a person was killed by a live electric wire lying on the road. SC applied the rule of strict liability and held that the defence of act of stranger is not applicable because snapping of wire can be anticipated and the Electricity Board should have cut off the current as soon as the wire snapped.

13 5. Statutory Authority - When an act is approved by the legislature or is done on the direction of the legislature, it is a valid defence for an action of tort even when the rules of Ryland vs Fletcher apply. However, it is not application when there is negligence. Position in India The principle of strict liability is applicable in India as well. For example, Motor Vehicles Act 1938, recognizes no fault liability. Similarly, the liability of a public carrier such as railways has also been increased from that of a bailee to an insurer. However, there has been a deviation in the scope of this rule. Depending on the situation, its scope has been increased as well as decreased by the courts. For example, in Madras Railway Co. vs Zamindar 1974, the water collected in a pond for agricultural purposes escaped and caused damage to the railway track and bridges. Here, the application of this rule was restricted because the collection of water in such a way is a necessity in Indian conditions and so it is a natural use of the land. This mechanism to store rainwater is used throughout the country and since ages. Therefore, the defendant was not held liable. A landmark case in this respect was the case of M C Mehta vs Union of India AIR In this case, oleum gas from a fertilizer plant of Shriram Foods and Fertilizers leaked and caused damage to several people and even killed one advocate. In this case, the rule of Ryland vs Fletcher was applied. However, the company pleaded sabotage as a defence. SC went one step further and promulgated the rule of Absolute Liability. It observed that the rule of Ryland vs Fletcher was a century old and was not sufficient to decide cases as science has advanced a lot in these year. If British laws haven't progressed, Indian courts are not bound to follow their law and can evolve the laws as per the requirements of the society. It held that an enterprise that engages in dangerous substances has an absolute responsibility to ensure the safety of the common public. It is only the company that can know the consequences of its activities and so it must take all the steps to prevent any accident. If, even after all precautions, accident happens, the company still should be made absolutely liable for the damages. The reason being that the company has a social obligation to compensate the people who suffered from its activity. SC also laid down that the measure of compensation should depend on the magnitude and capacity of the enterprise so that it can have a deterrent effect. Q. How can liability in Torts be discharged? The following are the modes through which liability in Torts can be discharged - 1. Death of a party - "Actio personalis maritur cum persona" means Personal actions of a person die with the person. But not always. In several cases, the cause of action remains valid even after death of wrongdoer. For example, Workers' Compensation Act, Fatal Accidents Act, etc. 2. Acquiescence - If the party whose right is being violated does not protest and allows the transgression to happen without any restriction. 3. Waiver - If the plaintiff starts proceedings for one remedy for example, Civil suit, he cannot file another suit under another remedy such as Tortios Suit for the same cause. 4. Release - If the plaintiff voluntarily releases the wrongdoer from liability. In England, consideration is must. In India, no consideration is required. 5. Accord and Satisfaction - If the parties compromise and settle the dispute. 6. Judgement Recovered - "res judicata" - upon the damages awarded by the court. 7. Statute of limitation - Suit must be filed within the time frame provided by statutes of limitations. Q. Explain various Judicial remedies that are available to a plaintiff in an action of tort. Are there any extra judicial remedies too? If so, enumerate them. What are the general types of damages available in cases of Torts? Explain with examples. What is the doctrine of remoteness of damages? Discuss law on this point.