Law of Tort – A complete Summary

Law of Tort – A complete Summary

Introduction

The word tort has been derived from the latin word ‘tortum’ which means ‘to twist’. Law of tort is that branch of law which deals with the civil offence against a person. Law of tort means every wrongful act for which there is no justification. According to salmond “ It is a civil wrong for which a the remedy is a common law action for unliquidated damages, and which is not a breach of trust and other equitable obligations. According to Winfield “Tortious liability arises from the breach of a duty, primarily fixed by the law: this duty is towards person generally and its breach is redressible by an action for unliquidated damages. Hence, the law prescribes that every person has a duty of care towards each other and when this duty is breached and third person suffers damage, he is entitled to get compensated for the damage so caused.

Is it law of tort or law of torts?

Winfield preferred that it is law of tort and not law of torts. If one injures his neighbor, he can sue him in tort whether the wrong happens to have any particular name like assault, battery, trespass etc. or no title at all. He will be liable if he cannot present any lawful justification.

While, Salmond believes that it is not law of tort but law of torts. The liability under this branch of law arises only when the wrong is covered by anyone of the nominated tort. He believes that when a plaintiff places a wrong in any one of the pigeon hole carrying a labeled tort, he will succeed in his suit. This theory is called as pigeon hole theory.

Damnum Sine Injuria & Injuria Sine Damnum

Damnum Sine Injuria stands for damage without injury. When the defendant does any act which inflicts some damage or loss to plaintiff without infringing his legal rights, there arises no liability.

Ex. If a person opens up the same business beside his competitor and provide services at a very cheap price. As a result of this the competitor suffers loss in business. The defendant will not be held liable since he did not infringe any legal right of competitor. He might be held under any other law but not in law of tort.

• In Moghul Steamship Co. v. McGregor Gow and Co case a number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lord held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extend their trade and increase their profits.

Injuria sine Damnum means injury without damage. When the defendant does any act which infringes the legal right of the plaintiff even if there is no damage is suffered by the plaintiff . He is entitled to the compensation.

• In Ashby v. White case, Ashby (Plaintiff) was stopped from casting a vote although the person for whom Ashby was willing to cast vote for, won the election but since his legal right to cast vote was infringed he was entitled for compensation.

General defenses

There are certain defenses one can avail to avoid any liability in case of offence which are as follow

• Volenti Non Fit Injuria (VNFI)
• Plaintiff the wrongdoer
• Inevitable accident
• Act of god
• Private defense
• Necessity
• Statutory authority

Volenti Non fit injuria

When a person consents to the infliction of some harm upon himself, he has no remedy for that in tort. If a person consent to suffer a harm he cannot enforce a right which he has voluntarily waived or abandoned. If any act has been done with the consent of that person, he shall not be liable for that act, provided the consent must be free and mere knowledge does not implies consent. The Doctrine doesn’t apply in cases rescue cases

• Hall v. Brooklands Auto Racing Club (1932) All E.R.- In this case the plaintiff was a spectator at a motor car race being held at Brooklands on a track owned by the defendant company. During the race there was a collision between two cars, one of which was thrown among the spectator, thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the spot which any spectator could foresee. Therefore, the defendant was not liable.

Mere knowledge doesn’t implies consent

In Smith v. Baker case The plaintiff was a workman employed by the defendant on working of drill for the purpose of cutting rocks. By the help of a crane, stone were being conveyed from one side to the other, and each time when stone were conveyed, the crane passed from over the plaintiff’s head. While he was busy in work, a stone fell from the crane and injured him. The employers were negligent in not warning him at the moment of recurring danger, although the plaintiff had been generally aware of the risk.

It was held by the House of Lords that as there was mere knowledge of risk without the assumption of it, the maxim volenti non fit injuria did not apply, and the defendant were liable.

Plaintiff the wrongdoer

Plaintiff the wrongdoer is the defense where the defendant claims that the plaintiff himself is the wrongdoer. The law asks that to seek justice one should come with clean handed and since the plaintiff is himself a wrongdoer, it will give defendant a strong defense.

• In case of Bird v. Holbrook (1828) Holbrook (D) had a walled garden with valuable tulips. It had previously been vandalized, so D set up a spring gun with trip wires in the garden. D had no notice of danger posted. He kept it secret “lest the villain should not be detected.” Bird (P), in attempting to retrieve a lost hen, climbed the wall and called to D. Having heard no answer, P jumped down and was seriously wounded by the spring gun. In this case the plaintiff, a trespasser over the defendant’s land was held entitled to claim compensation for injury caused by Spring Gun set by the defendant, without notice, in his garden.
  It has to be seen as to what is the connection between the plaintiff’s wrongful act and the harm suffered by him.Merely because the plaintiff is a wrongdoer is no bar to an action for the damage caused to him. He may claim compensation if his wrongful act is quit independent of the harm caused to him. He may loss his action if his wrongful act is the real cause of his harm.

Inevitable accident

Inevitable means something which cannot be anticipated or reasonably foreseen and accident means which is beyond any control. So inevitable accident is an unforeseeable incident which cannot be avoided even with due care and diligence

• Padmavati v. Dugganaika-Two stranger took lift in Jeep. The bolt of right front wheel opened out and wheel flew from axle. One stranger died and other seriously injured. It is case of sheer accident. No evidence to show that defect was patent and could be detected by periodical check up.
• Brown v. Kendall- Plaintiff and defendant dogs were fighting, Defendant tries to separate them. In that way accidently the eye of plaintiff was injured. It was held that it was an accident.

Act of god

Act of god is a kind of inevitable accident but in extraordinary manner. An act of god can be defined as an extraordinary occurrence of circumstances, which could not be foreseen and which could not be guarded against. It can be also called an accident due to natural cause directly or exclusively, without any human intervention and which could be avoided by any amount reasonable care. These events cannot be expected and include mandatorily working of natural forces.

• Kallulal v. Hem Chand (AIR 1958 MP) – the wall of building collapsed on a day when there was a rainfall of 2.66 inch. That resulted in death of the respondent two children. The MP high court held that defendant could not take defense of Act of God in this case as that much of rainfall during the rainy season was not something extraordinary but anticipated.

Private defense

The law permits use of reasonable amount of force to protect one’s property and person. The defendant is free to use force which is necessary for self defense , he will not be liable for harm thereby caused. The use of force should be reasonable, proportionate and justified for the purpose of defense. For the purpose to exercise this right, the threat to person or property should be imminent . it should also be necessary that use of such force was absolutely necessary to repel the invasion.

Ex. – if A house breaks in B’s compound with stick then B is free to use sticks and even strike to repel but he cannot pick up sword or gun to attack or repel.

One can not take the defense of private defense if he use the force when the invader is running away.

Necessity

An act causing damage, if done under necessity to prevent a greater evil is not actionable even though harm was caused intentionally. The law believes that it is reasonable and prudent to commit a smaller harm to protect a larger one. It is question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

In cope v sharp case The defendant entered the plaintiff’s land to prevent the spread of fire to the adjoining land over which the defendant’s master had shooting rights. Since the defendant’s act was considered to be reasonable necessary to save the from imminent danger, it was held that defendant was not liable for trespass.

Statutory authority

If the Damage is resulting from an act which the legislature authorizes or directs to be done, is not actionable even though it would otherwise be a tort. When an act is done under the authority of an Act, it is a complete defense and injured party has no remedy except for claiming such compensation which may have been provided by statute.

Immunity under statutory authority is not only for the harm which is obvious but also for that harm which is incidental to the exercise of such authority

Actions in tort

• Assault and battery
• False imprisonment
• Defamation
• Vicarious liability
• Malicious prosecution
• Nuisance
• Trespass
• Negligence
• Strict and absolute liability

Assault

Assault is an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. When the plaintiff had a reasonable apprehension of imminent injury or infliction of injury, assault has been committed. Pointing of a loaded pistol, shaking fist, inciting dogs, pulling of chair from a person about to sit etc.

Battery

An intentional application of force to another person without any lawful justification. When a person inflicts any corporeal injury onto anyone is termed as battery. Assault precedes Battery.

It is also essential that there should be prima facie ability to do the harm. If the fist or cane is shown from a moving train to another standing away on platform, there is no assault. Mere verbal threat is not assault.

Ex. – when a person tries to throw a water balloon to other, as long as the balloon is in its course it will be assault but once it hits a person it will become battery

False imprisonment

False Imprisonment (hereafter as F.I.) means imposition of total restraint for some period, however short, upon the liberty of another, without sufficient lawful justification. For a F.I. , it is not necessary that a person should be imprisoned in jail or four walls, If a man is restrained, by a threat of force, from leaving even his own house or an open field, there is false imprisonment. Total restraint: under criminal law whether restrain is total or partial, it is actionable. While in civil law, when the restraint is total, i.e. the person is prevented from going out of certain circumscribed, is becomes actionable only. F.I. is said to be committed when a person is restraint in a room having an exit if he don’t knows about that exit

Essential:

• There should be total restraint on the liberty of a person.
• It should be without lawful justification.
• Person should have a reasonable apprehension about his imprisonment

Rudal Shah v State of Bihar The petitioner who was detained in prison for over 14 years after his acquittal filed a habeas corpus petition under Art. 32 of the Constitution praying for his release on the ground that his detention in the jail was unlawful. He also asked for certain other reliefs including compensation for his illegal detention.
• When the petition came up for hearing the Court was informed by the respondent State that the petitioner had already been released from the jail.
• The petitioner’s detention in the prison after his acquittal was wholly unjustified.

Malicious Prosecution

Malicious prosecution may be defined as the institution of, against an innocent person, an unsuccessful criminal, bankruptcy or liquidation proceedings, without reasonable and probable cause, and in a malicious spirit, i.e. from an indirect and improper motive, and not in furtherance of justice, and which causes damages to the plaintiff in person, pocket or reputation. Acquittal of plaintiff is imperative and integral for the action for malicious prosecution, if the plaintiff is convicted in the case, no suit can be brought for malicious prosecution

Essentials –

• Prosecution
• Acquittal of Plaintiff
• No reasonable or probable cause
• Malicious intent
• Damage

When all these essentials are met, malicious prosecution is said to be committed

Defamation

When the defendant does an act which is likely to cause harm to the reputation of plaintiff in the eyes of a reasonable and prudent person of society, defamation is deemed to be committed. Defamation is any intentional false communication either by written or spoken, that harms a person’s reputation decreases the respect.

The law believes that the reputation of a person is equal or even more important than his property. Whether a Statement is defamatory or not depends upon how the right thinking member of the society are likely to affected by it. If the likely effect of the statement is the injury to the plaintiff’s reputation, it is no defense to say that it was not intended to be defamatory.

Essentials of defamation

• The Statement must be defamatory.
• The Statement must refer to the plaintiff.
• The Statement must be published.

In English law it is of two types

1. Libel – libel is representation made in some permanent form. Libel is addressed to the eyes like writing, printing video etc
2. Slander – slander is the publication of a defamatory statement in a transient form. Slander is addressed to the ears like spoken, words or gesture etc

Remedies in defamation

Truth
• If the defendant shows the statement made by him is truth, no action will arise. Hence truth is an ultimate defense
Fair and bonafide comment
• It is believed that anyone who makes a fair comment in the matter of public interest, it is no offense. This defense is based on the public policy which gives everyone a right to praise or criticize other. Any fair comment is protected even if it is not true.
Privileged statement
• In the interest of welfare of society at large certain privilages are given, these are
o Qualified privilege– when a person making the statement has a legal, social duty to make it and the listeners has an interest in it. In such case, qualified privilege is allowed
o Absolute privilege– where the public interest demands that an individual rights to reputation should give way to the freedom of speech.

Vicarious liability

Generally a person is liable for his own wrongful act and one does not incur any liability for the acts done by others. In certain cases, however, vicarious liability, that is the liability of one person for the act done by another person, may arise. For vicarious liability there must be existence of certain kind of relationship like Principal and Agent, Master and Servant, Partners.

When an agent or servant or any partner of a firm does any act which inflicts any legal injury to other during the course of employment, under the principle of vicarious liability master, principal or the other partners can be held liable

In Ormrod v. Crosville Motor Service Ltd, the owner of a car asked his friend to drive his car. While the car was being so driven by the friend, it collided with a bus. The owner of the car was held liable.

For the tort committed by any partner in the ordinary course of business of the firm, all the other partners are liable to the same extent as the guilty partner.

If a servant does a wrongful act in the course of his employment, the master is liable for it, the servant, of course is also liable.

Nuisance

Nuisance is an indirect interference of use or enjoyment of one’s own property or right. Any Acts interfering with the comfort, health or safety can be called nuisance. The interference may be made in different way e.g. noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavation or disease producing germs. Nuisance can also be caused by lawful act of any person. Nuisance is generally a continuing wrong. A constant noise, smell, or vibration is nuisance and ordinarily an isolated act of escape cannot be considered to be a nuisance. Public nuisance is a crime (S.268 of IPC) and private nuisance is civil wrong. Every interference is not a nuisance. To constitute a nuisance it must be unreasonable. If I have house by the side of the road, I cannot bring an action for the inconvenience which is necessarily incidental to the traffic on the road.

Case:

• Radhey Shyam v. Gur Prasad, AIR 1978- installing flour mill in same premises- losing peace of mind on account of rattling noise of the FLOUR MILL. Therefore, running a flour mill in a residential area has been held to be nuisance.
• In Shanmughavel Chettiar v. Ram Kumar Ginning Firm, the court recognized a right to prevent the occurrence of nuisance was recognized even before the nuisance caused

Defenses:

• Prescription : A right to do a act, which would otherwise be a private nuisance may be prescriptions. A right to commit a private nuisance may be acquired as an easement if the same has been peaceably and openly enjoyed as an easement and of right, without interruption and for a period of 20 years.
• Statutory Authority: If nuisance is necessarily incidental to what has been authorized by a Statute, there is no liability for that under the law of torts. Example- running railway trains- value of adjoining property is depreciated by the noise, vibration and smoke.

Trespass

Trespass is the direct interference with use and enjoyment of property. Trespass is a interference through some material or tangible object. For the commission of trespass the offender had to enter in the compound or should let some tangible object to enter the compound of other.
Ex. – Planting a tree on another’s land is trespass, entering in someone’s property without his/her permission is trespass.

Negligence

Negligence is the breach of legal duty to take reasonable care towards other as a result of which the plaintiff suffers a damage. Duty means legal duty rather than a mere a moral, religious or social duty. It is not sufficient to show that the defendant was careless, the plaintiff has to establish that the defendant owed to the plaintiff a specific legal duty to take care. The degree of care varies according to likely hood of harm and seriousness of injury.

A person with loaded gun expected to take more care than a person carrying an ordinary stick. When there is apparent risk due to abnormal conditions, necessary care must be taken to prevent harm.

Reasonable foreseeability of injury

Whether the defendant owed a duty toward plaintiff or not depends on reasonable forseeability of injury to the plaintiff.
Ishwar Devi v. Union of India (AIR 1969 Delhi 183) if conductor gives a bell to start the bus while a passenger is still on the foot board and the driver tries to overtake a stationary bus very closely and the passenger gets squeezed between two buses, there is negligence on the part of both conductor and driver.

Breach of duty

Breach of duty means not taking due care which is required in a particular case. The Standard of care demanded is that of a reasonable or a prudent man. If the defendant acted like a reasonable prudent man, there is no negligence. The law does not require greatest possible care but the care required is that of a reasonable man under certain circumstance. The law permits taking chance of some measure of risk so that in public interest some various kind of activities should go on.

• Shushma Mitra v. M.P. S.R.T. Corp.- the plaintiff, while travelling in a bus going on the highway, was resting her elbow on window sill. She was injured when hit by truck in opposite direction. The driver of bus and truck were held liable.
• In Donoghue v. Stevenson, A purchased a bottle of Ginger beer, from a retailer for the appellant. Some of the contents were poured into a tumbler and she consumed the same. When the remaining contents of the bottle were poured into her tumbler, the decomposed body of snail floated out with Ginger beer. The appellant alleged that she seriously suffered in her health in consequence of her having drunk part of the contaminated content. The bottle was said to have been a dark coloured glass and closed with a metal cap so that the condition of its content could not be ascertained by inspection. She brought an action against the manufacturer for damages. It was held by the House of Lords that manufacturers owed her a duty to take care that the bottle did not contain noxious matter, and that he would be liable on breach of Duty. The house of Lords also held that even though there was no contractual relationship between the manufacturer and the consumer, and the consumer could you bring an action and this case thus has done away with “privity of contract” fallacy.

Contributory Negligence

When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. When both plaintiff and the defendant have acted towards a negligent act which causes damage to one of them or both of them. To be guilty of contributory negligence it is to be shown that the plaintiff should not have acted like a prudent man.

Rural Transport Service v. Bezlum Bibi, AIR 1980,Cal In this case conductor of an overcrowded bus invites a passenger to travel on the roof of the bus. and the driver swerves the bus to the right to overtake a cart and a passenger on the roof is hit by the branch of a tree and falls down, as a consequence of which he suffers serious injuries and dies.

It was held that both the driver and conductor of the bus were negligent towards the passengers, who were invited to sit on the roof, there was also CONTRIBUTORY NEGLIGENCE on the part of the passenger who took the risk of travelling on the roof of the bus.

At common law contributory negligence on the part of the plaintiff was considered to be good defense and the plaintiff lost his action. Plaintiff’s own negligence disentitled him to bring any action against the negligent defendant.

Here plaintiff’s negligence does not means breach of duty towards other party but it means absence of due care on his part about his own safety.

This rule worked great hardship particularly for the plaintiff because for a slight negligence on his part, he may lose his action against a defendant whose negligence may have been the main cause of damage to the plaintiff.

Strict and absolute liability

There are situations when a person may be liable for some harm even though he is not negligent in causing the same, or there is no intention to cause harm, or sometimes he may even have made some positive efforts to avert the same. In other words, sometimes the law recognises ‘No fault Liability’. These liabilities arise even without the fault of defendant. These liabilities include strict and absolute liability. These liabilities were laid down in following cases-

• Rylands v. Fletcher(1868)- House of Lord.- Strict Liability
• M.C. Mehta v. Union of India (1987)- Supreme Court of India.- Absolute liability.

Rylands v Fletcher

Rylands employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris(waste), they chose to continue work rather than properly blocking them up. The result was that on 11 December 1860, shortly after being filled for the first time, Rylands’s reservoir burst and flooded a neighbouring mine, run by Fletcher, causing huge monetary damage. The majority ruled in favour of Rylands; however, Bramwell B, dissenting, argued that the claimant had the right to enjoy his land free of interference from water, and that as a result the defendant was guilty of trespass and the commissioning of a nuisance. Bramwell’s argument was affirmed, both by the Court of Exchequer Chamber and the House of Lords, leading to the development of the “Rule in Rylands v Fletcher” or rule of strict liability.

Rule of strict liability states that “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”.

Essentials for strict liability

1. The things must be dangerous,

The thing collected should be capable of doing mischief by escape. The rule has been applied to water, gas, electricity, poisonous trees, sewages, explosives, noxious fumes, vibrations, rusty wire etc.

2. Escape of such thing,
The thing causing damage must escape to the area outside the occupation of and control of defendant.
For ex.- if there is projection of the branches of a poisonous tree on the neighbor’s land this amounts to an escape and if the cattle lawfully there on the neighbor’s land are poisoned by eating the leaves of the same, the defendant will be liable under the rule of Rylands vs Fletcher, but if the plaintiff’s horse intrudes over the boundaries and dies by nibbling the leaves of a poisonous tree there, the defendant cannot be held liable because there is no escape of the vegetation in this case.

3. Not natural use of land,
For the use to be non-natural it “must be some special use bringing with it increased danger to others, and must not merely by the ordinary use of land or such use as is proper for the general benefit of the community.”

Exceptions

o ACT OF GOD OR VIS MAJOR
o PLAINTIFF’S OWN DEFAULT
o CONSENT OF THE PLAINTIFF
o STATUTORY AUTHORITY
o WRONGFUL OR MALICIOUS ACT OF A STRANGER

M.C. Mehta v. Union of India

• In M. C. Mehta v. Union of India, AIR 1987, the Supreme Court converted Strict liability into Absolute Liability. It means that the exceptions to Strict liability shall not be recognized. In this case there was leakage of oleum gas in Shri Ram Food and Fertilizers industries.
• The SC held that in Indian context it is not possible to them to recognize and being remain bound by the rule enunciated in Rylands v. Fletcher’s Case.
• The SC also held that if any thing is dangerous and caused damage to any person then absolute liability arises. Any thing how much is dangerous can only be known by person who brought about all these thing and not by the ordinary person. This liability is non delegable or not transferable. The damages in such cases is exemplary because the purpose of the compensation is to make alert other people about these thing. The compensation is in the form of penalty or punishment.

Author: Ajay Singh Tomar,
Amity University Madhya Pradesh