NATURE AND DEFINITION OF TORT

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1. INTRODUCTION-

Tort law in India is uncodified .To deal with the malicious behaviour of the people tort existed in Hindu and Muslim law but it can be said that tort was formally introduced by the Crown in India. It is based on the principles of equity, justice, and good conscience. The law of torts is based on the principles of ‘common law’ which is mainly the English law of torts. The application of the law of tort is an applied selectively in Indian courts keeping in mind if it suits the circumstances of Indian society.

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Justice Bhagwati in M.C Mehta v. Union of India observed that:

“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.”

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1. DEFINITION -

Tort means a conduct which is crooked or twisted i.e. not straight. It is derived from a latin term ‘Tortum’ which means ‘twisted’.  The important definitions of Tort as given by various scholars are as follows:      

• “It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of  a trust or other merely equitable obligation” – SALMOND

According to Salmond’s definition, it is the law of torts i.e. the plaintiff should prove that the wrong falls under the already existing torts.

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• “ Tortious liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages” – WINFIELD

As per Winfield, it is the law of tort i.e. all the unjustifiable wrongdoings will fall under the category of tort.

The above definitions provide different elements which constitute a tort and distinguish it from other wrongs. However, every civil wrong is not a Tort. Therefore, a precise definition of Tort is not possible.

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• It is observed that tort is a civil wrong as the plaintiff institutes civil proceedings against the defendant and the plaintiff is compensated by the defendant for the injury. There is breach of trust or contract by the defendant which has caused damage to the plaintiff. Also tort is redressible by an action for unliquidated damages. Damages is the most important remedy for a tort. Generally, it is in the form of money compensation which satisfies the injured party. The damages in tort are unliquidated as they are left to the discretion of court and are not predetermined as in the case of liquidated damages.

1. ESSENTIALS OF TORT-

1. Act or Omission- for a person to be made liable for tort, he must have done a wrongful act or has omitted to do something which he was supposed to do. The act must be legally recognised i.e.  for a mere social or moral wrong , there is no liability under tort law. Eg. If somebody fails to help a starving man or save a drowning child, it is only a moral wrong and, therefore, no liability can arise for that unless it can be proved that there was a legal duty to help the starving man or save the drowning child.

2. Legal Damage- The plaintiff must prove that there was a legal duty on the part of defendant and he has violated that duty. Since what is actionable is the violation of a legal right, it therefore follows that when there is no violation of a legal right, no action can lie in a court of law even though the defendant’s act has caused some loss or harm or damage to plaintiff.

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1. COMPARISIONS-

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1. Tort and Crime

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1. The wrongs which are comparatively less serious are considered to be private wrongs and have been labelled as civil wrongs, whereas mores serious wrongs have been considered to be public wrongs and are known as crimes. There are various laws which are found both in crime and tort like assault , defamation etc.  The rules of tort and crime are different,eg. In case of tortious liability for the wrong of defamation, truth is in itself a defence whereas in an action for the offence of defamation, the defence of truth can be taken if the publication was made for public good.

2. Since tort is considered to be a private wrong , the injured party has to file suit as plaintiff. In case of crime, the immediate victim is an individual, the criminal wrong is considered to be a public wrong, victim is an individual, the wrong is against the public at large i.e. the whole society.

3. In case of tort, the ends of justice are met by awarding damages whereas in crime the wrongdoer is punished.

4. The idea of compensation under tort is to make good to the loss suffered by plaintiff whereas in case of crime the punishment is awarded to deter the wrongdoer from committing further offences.

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2.  Tort and Breach of Contract-

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1. The agreement, the violation of which is known as a breach of contract is made by the parties with their free consent. A tort on the other hand, results from breach of duties which are undertaken by themselves but are imposed by law.

2. In a contract, the duty is based on the privity of contract and each party owes duty only to the other contracting party whereas the duties imposed under tort are

3. not towards specific individuals but towards the society at large.

4. In case of breach of contract, the damages may be liquidated or unliquidated whereas in the case of tort the damages are always unliquidated.

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3.  Tort and Breach of trust distinguished-

In case of breach of trust by trustee, the beneficiary can claim such compensation which depends upon the loss that the trust property has suffered. The amount of damages being ascertainable before the beneficiary brings the action , the damages , in case of a breach of trust , are liquidated. On the other hand, damages in tort are unliquidated. The whole law of trust as a division of the law of property is fairly detachable from other parts of tort law.

1. Tort and  Quasi –Contract-

1. Law of quasi-contract gives right only with respect to money and generally it is a liquidated sum of money. Law of torts, apart from granting right to damages also grant remedies and it is always liquidated sum of money.

2. In quasi- contract, the duty is towards particular individual whereas in case of tort, the dutyt is towards persons generally.

3. In quasi-contract, the wrongdoer has to be sued to recover the value of benefit obtained by wrongdoer whereas in tort the injured party has choice to sue.

GENERAL PRINCIPLES

1. INJURIA SINE DAMNO

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• It means violation of a legal right without causing any harm, loss or damage to the plaintiff. In such cases, there is no need to prove that plaintiff has suffered any harm due to wrongful act i.e. they are per se actionable by law. It is only the legal right which is actionable.

• The court in Ashby v. White[1] explained the above maxim. The plaintiff succeeded in his action, even though the defendant’s act did not cause any damage. The plaintiff was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiff’s vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won election in spite of that candidate for whom he wanted to vote won the election in spite of that. It was held that the defendant was liable.

• In case of injuria sine damno, the loss suffered by the plaintiff is not relevant for the purpose of a cause of action. It may be relevant to calculate the damages only. In Bhim Singh v. State of J&K[2], when a member of the Legislative Assembly was wrongfully detained by the police so as to prevent him from exercising his right of attending the session of the Assembly, he was granted exemplary damages amounting to Rs. 50000.

• Eg. Of the above maxim is in the case of slanderous words, though a man does not lose his penny by reason of speaking them, yet he shall have an action.

  2. DAMNUM SINE INJURIA

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• It means damage which is not coupled which is not coupled with unauthorised interferences with plaintiff’s lawful right. Causing damage, however substantial, to another person is not actionable in law unless there is also violation of a legal right of the plaintiff. This is generally so when the exercise of legal right by one results in consequential harm to other.

• Gloucester Grammar School[3] case explains this point. There, 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 by 40 pence to 12 pence per school per quarter. It was held that the plaintiffs had no remedy for loss suffered by him

• In Ushaben v. Bhagyalaxmi[4] it was held that to hurt the religious sentiments of plaintiff in so far as the goddesses saraswati, Lakshmi and Parvatiwho were depicted as  jealous and ridiculed is not recognised as a legal wrong. Moreover, no person has legal right to enforce his feelings on other

• The maxim was applied in P. Seetharamayya v. Mahalakshmamma[5] where the owner of land on or near a river has a right to build a fence upon his own ground to prevent damage to his ground by the overflow of river, even though as a result of the same, the overflowing water is diverted to the neighbour’s land and cause damage. This being a clear case of damnum sine injuria , the defendants were not liable for the harm of plaintiffs.

• In Bradford Corporation v. Pickles[6] , the House of Lords went a step further and held that even if the harm to the plaintiff has been caused maliciously, no action can lie for the same unless the plaintiff can prove that he has suffered any legal injury.

• The court in Town area Committee v. PrabhuDayal[7] held that the defendant were not liable as no injuria could be proved because if the person constructs a building illegally, the demolition of such building by municipal authorities would not amount to causing injuria to owner of the property.

• Other examples being defamatory statements made on privileged occasions , damage caused under the act of necessity etc.

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MENTAL ELEMENT IN TORTIOUS LIABILITY

Mental element is essential element of most of crimes. or guilty mind is essential along with the act of person in crime. The position under tort is explained as follows:

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Fault when relevant-

In many torts like battery, assault, malicious prosecution, deceit the state of mind of a n individual is necessary to ascertain his liability. We may compare the conduct of the defendant with that of the reasonable man. If his conduct can be found innocent, he may be excused from liability. If the defendant’s horse for no fault on his part, cause injury to somebody on public highway, defendant can take defence of inevitable accident.[8] The defence of necessity may be taken in the same way. Similarly pulling out of drowning person is not actionable

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Liability without fault

There are certain cases where mental element is irrelevant and liability arouses without any negligence and intention on part of defendant. In such cases, honest mistake or innocence of defendant on his part is no defence. Tort of conversion is an example. In Rylands v. Fletcher[9] rule of strict liability was laid down. If a person under this rule, makes non-natural use of his land by collecting something which is likely to do mischief by escape, he will be liable if the thing so collected escapes and cause damage.

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Malice in Law

It signifies any wrongful act done intentionally without just cause or excuse. Malice in legal sense thus means a wrongful act intentionally done but without just cause or excuse or want of probable cause. Eg.defamation where a statement is made maliciously, without a legal justification.

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Malice in Fact or Evil Motive

It means an evil motive for wrongful act. When the defendant does a wrongful act with a feeling of spite, vengeance or ill will, the act is said to be done maliciously. Motive means an ulterior reason for conduct. It is different from intention.

As a general rule, motive is not relevant to determine a person’s liability in law of torts. A wrongful act does not become lawful merely because the motive is good. In South wales Miners’ Federation v. Glamorgan coal Company[10] , where the plaintiffs, the owners of coalmines, brought an action against the defendants, a miners’ union, for inducing its workmen to make the breach of contract of their employment by ordering them to take certain holidays, the court held that the act of defendant was not actuated by ill will but the object was to keep up the price of coal by which the wages were regulated. Thus the defendants were held liable.

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It is well settled that the extraordinary writ jurisdiction cannot be exercised when civil rights of the parties are involved and the facts are disputed.

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CAPACITY TO SUE AND BE SUED IN TORTS

In Law, every person has an inbuilt right to sue and be sued, which is also called as general capacity to sue. Corporations, Act of State, Persons having judicial authority, Independent and Joint Tortfeasors, even the Minor and many more has the capacity to sue and be sued.

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WHO CAN SUE:

1. A minor can sue for any wrong done to him. A minor may even sue his parents for a negligent act. A minor who sustained injury while in the mother’s womb can also sue the guilty after coming to the world.

2. Infringement of rights of any person given by law gives rise to another to sue the person or whosoever.

3. A returning officer at a voting booth refused to allow the plaintiff, a duly qualified voter from voting. The candidate for whom the plaintiff was voting got elected and therefore no loss was suffered by him. The court held that although the plaintiff did not sustain any actual loss, but his legal right to vote was violated for which he was granted a remedy.[11]

4. A corporation can sue in its own name for the tort committed against it.

5. Two persons acting independently and causing same damage is independent if tortfeasor and so can be sued.

6. Those minors who had conceived and not yet born and suffered injury due to toxic gas and were allowed the damages.[12]

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WHO CANNOT BE SUED:

1. A minor is generally not capable of being sued if he commits a tort since he is incapable of reimbursing damages. But there are cases in which he can be sued just like an adult. A minor can be sued for contributory negligence. If parents on own negligence places a child in position to commit tort, parents are held liable.[13]

2. Foreign sovereign cannot be sued and it is known as a fundamental principal.[14]

3. Ambassadors are diplomats cannot be sued in a country where they are posted and international law gives this right to them.

4. Public officials cannot be sued in their representative capacity for the torts committed by them or by their representatives.

5. The corporation incorporated under companies’ ordinance 1984 cannot be sued for tort requiring physical though like tort of assault.

6. Trade union registered under industrial relation ordinance 2008 cannot be sued for tort committed by them in the course of industrial dispute.

7. King or his servant cannot be sued for torts committed by them.

8. Husband and wife cannot sue each other for tort as long as they are husband and wife. But they can sue each other in any other relationship, for example, if both are working under a common boss/employee etc.[15]

So till now hope you have understood that there is no any hard and fast rule for making someone sue or be sued. All persons have the capacity to sue and are even liable to be sued. It varies from circumstances and situations.

TRESPASS

Trespass can be termed as the wrongful act done directly and intentionally to cause the harm to another property.

Trespass to person-assault:

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A trespass to the person consists of any contact with someone’s person for which consent was not given. This is technically described as a battery. An assault would be a situation where a plaintiff reasonably believed a battery upon his person was about to be committed. An example of an assault would be where one person swings his fist at another person. If the person made contact, this would be an assault and battery. A defence to assault and battery would be in cases of self-defence.

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Battery and False Imprisonment:

A harmful, or an offensive, touching of the plaintiff's person, caused directly or indirectly by a voluntary act of the defendant with an intention to inflict a harmful or an offensive touching, is a battery.  It can be direct like as A slaps B then it is direct while the other is indirectly like pulling off a chair while the other is sitting. What is important in this is that there should be physical contact between the persons. Sec 350 of I.P.C. holds the person criminally liable for battery.

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The plaintiff entered in a carriage of defendant’s railway but had forgotten to purchase a ticket for his travel. On one of the stops of the carriage, he tried to purchase the ticket but didn’t get any. At another place, he was asked for the ticket which he didn’t have and therefore was asked to get out of the carriage. He refused to do so. On his refusal, the defendant used force to get him out of the carriage. He bought an action against the defendant for use of force. It was held that the defendant was not liable, as he used force against the person who was not having a ticket and therefore was a trespasser, and therefore he couldn’t be held liable.[16]

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False imprisonment involves detaining a person without that person’s consent. It can take the extreme form of kidnapping or the less extreme form of detaining a shopper for suspected shoplifting without reasonable grounds. A defence to false imprisonment would be consent of the detainee, or if a store owner had reasonable grounds to believe that the detainee was guilty of shoplifting (shopkeeper’s privilege). This privilege allows a store owner (or his employee) to detain a suspected shoplifter based on reasonable suspicion for a reasonable time. The essential requirement for this is:  There should be a total restraint on the liberty of a person, and there should not be any lawful justification for the same.

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Trespass to Land:

A trespass to land involves going on or above the property of another without permission. A trespass can also involve the unpermitted use of the airspace of another’s property as well as actually going on the actual property. However, this rule has been modified to allow the flight of aircraft above the land as long as it does not interfere with the proper use of the land.

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Trespass to land refers to the wrongful interference of one over the property of another without any legal justification. It should be direct and physical. Trespass to land is more of a right over the possession of property rather than ownership of property. That is the person who is having actual possession over the property can even has a claim against the owner of that property for trespass to land. The plaintiff was having a possession over the property by way of a lease which was void. But even after that, he was entitled to bring an action against the defendant for trespass.[17]

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Trespass to Goods:

Trespass to goods refers to the unintentional or intentional interference with the goods which are in the possession of other, without any lawful justification can be termed as trespass to goods. Unlike trespass to land trespass to goods are also wrong against the possession of goods. Therefore if A gives his watch for repairing to B for 2 days, then he can’t silently take his watch out of B’s possession without his permission. If in case A takes his watch without permission of B then A could be held liable under the trespass to goods, even if he is the real owner of the same.

Case law:

1. Plaintiff and defendant were neighbours. Spring gun was attached on defendant’s property which was rigged to fire a bullet on trespassers. Plaintiff trespassed with knowledge of the spring gun and consent to that risk whereupon he was shot. It was held that defendant is not liable as volenti non fit injuria is applicable.[18]

2. The plaintiff was trespassing on the defendant's property and he was hurt due to a spring gun. The defendant had put spring guns without any notice and was thus held liable.[19]

3. Albert tried to jump the queue at a bus stop. Mr Lavin (an off-duty police officer), feared that this was going to provoke a breach of the peace and so took hold of albert and tried to prevent him from boarding the bus out of turn, the House of Lords upheld Lavin’s actions as lawful.[20]

4. Search and seizure on the premises of appellant do not constitute an act of trespass. It can’t be said that any procedure carried out to find the truth on the property will be construed to be an act of trespass if the act is carried out with sufficient legal backing.[21]

5. The performance of hysterectomy and salpingo-ophorectomy on a patient was an unauthorized invasion on her person by the doctor, and it can be deduced to be an assault and consequential battery. Her consent was required as she was an adult and although the doctor acted in the best of patient’s interests and can be considered to be mitigating circumstances to reduce compensation, however, in the interests of justice, the patient is entitled to the compensation.[22]

6. Petitioners were licensed to operate kiosks through auction, and their right was taken away by the government corporation after the revocation of license on the expiry of the license period. Here the court made a distinction between license and lease and held that the license does not create possession and it is the discretion of the authority to revoke the license and dispossess the petitioner if any irregularity or discretionary act guides them to do so. A leased property can’t be trespassed on without lawful justification and exhortation of public need. On the other hand, a licence neither creates ownership nor possession rights in favour the person to whom it is granted. As a result, it can’t be said that the petitioner’s right has been trampled upon by trespassing on the property.[23]

NEGLIGENCE

The word negligence means mere carelessness. In legal sense it means failure to exercise standard of care which the doer as a reasonable man should have exercised in the circumstances. It is a legal duty to take care when it was reasonably foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which many kinds of harm may be caused. According to Winfield and Jolowicz, negligence is a breach of legal duty to take care which results in damage, undesired by the defendant to the plaintiff. It is even said as the omission to do something which a reasonable man would do, or doing something which a reasonable, prudent man would not do.[24]

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Essentials of Negligence:

1. Duty of Care towards the Plaintiff: It is the legal duty of care which the defendant owes towards the plaintiff. Let’s better understood it with the help of a case:

• The plaintiff purchased two sets of woollen underwear from a retailer and contacted a skin disease by wearing underwear. The woollen underwear contained excess of sulphates which the makers failed to remove while washing them. The manufacturers were held liable.[25]

• The plaintiff purchased two sets of woollen underwear from a retailer and contacted a skin disease by wearing underwear. It contained excess of sulphates which the manufactures negligently failed to remove while washing them. For the same they were held liable as they failed to perform their duty.[26]

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   2. Breach of Duty of Care:  The plaintiff must prove that the defendant committed a breach of duty to take care or he         failed to perform the duty. Let’s better understood it with the help of a case:

• A number of persons died due the collapsing of a clock-tower in the heart of the Chandni Chowk, Delhi. The normal life of such structures are normally 40 45 years but the tower was around 80 years old. The Municipal Corporation of Delhi is held liable as it is under their hands and they are not able to take care and perform their duties efficiently.[27]

• A person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable for the same.[28]

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   3. Consequent Damage/Consequential Harm to the Plaintiff: One of the last essential is to proof that the damage               caused to the plaintiff was the result of the breach of legal duty caused by the defendant. Harm may be physical         harm, harm to reputation, property, mental or even nervous shock. Let’s understand better with the help of a case:

• The doctor was held liable for leaving a cotton map inside the body of the patient. Since he was negligent in doing his act and so was held liable for the same.[29]

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There are defenses available to the offence of negligence. These defenses are:

1. Contributory Negligence: This occurs when a plaintiff fails to take reasonable precautions which then combined with the defendant’s negligence to cause injuries to the plaintiff. It means that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another for the same act. This is determined on the basis of the standard of the reasonable person, and whether the person has acted as a reasonable person would have is decided on the basis of what the person knew or ought to have known at the time. The Court determines questions of contributory negligence on the basis of fact. To determine contributory negligence, the court uses a twofold test. Let’s understand it better with the help of a case:

• The defendant had put a pole across a public thoroughfare in Durby, which he had no right to do. The plaintiff was riding that way at 8’O clock in the evening in August, when dusk was coming on, but the obstruction was still visible from a distance of 100 yards; he was riding violently, came against the pole and fell with the horse. It was held that the plaintiff could not claim damages as he was also negligent.[30]

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  2.  Act of God: Sudden and irresistible, direct, violent act of nature and could not be foreseen by human. Such as             storm, extraordinary rainfall, earthquake, etc. A case is illustrated below to make a better understanding:

• The defendant had a series of artificial lakes on his land in the construction/maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of the reservoirs burst and carried away four country bridges. It was held that the defendant was not liable as the water escaped by the act of God.[31]

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