Law of Tort Unit-1 & Unit-2 English PDF

Shree P.M.Patel College of Law and Human Rights,Anand. LL. B (Sem – 1) Subject Law of Tort Including MV Act And Consumer Protection Laws Subject Code UL01CLLB63 Submitted...

Shree P.M.Patel College of Law and Human Rights,Anand. LL. B (Sem – 1) Subject Law of Tort Including MV Act And Consumer Protection Laws Subject Code UL01CLLB63 Submitted by Yakub Saiyad (B.A.,B.Ed.,M.A.,LL.B.,LL.M.,D.L.P.,D.T.P.,Ph.D.(Scholar)) Assistant Professor Shree P.M.Patel College of Law and Human Rights,Anand.  Unit – 1 1.1 Meaning, Definition & Scope Ingredients of Tort 1.2 Damnum sine injuria and injuria sine Damnum 1.3 Differentiate Tort from Crimes and Breach of Contract 1.4 Capacity of person to sue and be sued 1.5 Justification of Tort (Defences) 1.6 Extinction of Tortious Liability:(Termination) 1.7 Remedies available in Tort 1.1 Meaning, Definition & Scope Ingredients of Tort Meaning The term ‘Tort’ originates from the Latin word ‘tortum,’ signifying ‘to twist.’ Consequently, it denotes behaviour that is not legal but rather distorted, crooked, or unlawful. The individual responsible for committing the tort is referred to as the ‘tort person,’ and their wrongdoing is termed a ‘tortuous act.’ In general terms, every citizen behaves responsibly and performs their duties towards society in a straightforward manner. However, when someone does not behave accordingly or chooses a crooked path, they have committed a tort. A tort is a civil wrong, signifying any individual who inadvertently inflicts harm, such as death, accidents, nervous shock, or other consequential losses that cause suffering to another person. Therefore, a person who has experienced damage can seek compensation for their injury from the individual responsible for the loss under tort law. A common example of a tort is a car accident where one driver fails to obey traffic signals and collides with another vehicle, causing injury to the occupants. In this scenario, the driver who disregarded traffic rules and caused harm may be held liable for negligence under tort law. The injured party can then seek compensation for medical expenses, property damage, and other losses resulting from the accident. Tort law determines whether the accused party can be held responsible for the inflicted injury and establishes the amount of compensation entitled to the injured party. Definitions Several jurists or thinkers have offered definitions of tort. Here are a few examples-  Salmond : He said, “Tort 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.” 1|Page   Clerk & Lindsell : “A tort may be described as wrong independent of contract, for which the appropriate remedy is common law action.”  Sir Frederick Pollock : “The law of torts in civil wrong is a collective name for the rules governing many species of liability which, although their subject matter is wide and varied have certain broad features in common, enforced by the same kind of legal process and are subject to similar exceptions.”  Fraser : It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.  Lord Denning : “The province of tort is to allocate responsibility for injurious conduct”.  Winfield : Winfield defined tortious liability in the following words; “Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages”.  Sec. 2(m) of the Limitation Act, 1963 : “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.” The Law of Torts In India Under the Hindu law and the Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is mainly the 2|Page English law of torts which itself is based on the principles of the common law of England. This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India. The expression justice, equity and good conscience was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian society and circumstances. The Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application. On this the Privy Council has observed that the ability of the common law to adapt itself to the differing circumstances of the countries where it has taken roots is not a weakness but one of its strengths. Further, in applying the English law on a particular point, the Indian courts are not restricted to common law. If the new rules of English statute law replacing or modifying the common law are more in consonance with justice, equity and good conscience, it is open o the courts in India to reject the outmoded rules of common law and to apply the new rules. For example, the principles of English statute, the Law Reform (Contributory Negligence) Act, 1945, have been applied in India although there is still no corresponding Act enacted by Parliament in India. The development in Indian law 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. It has also been held that section 9 of The Code of Civil Procedure, which enables the civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as principles of justice, equity and good conscience. Thus the court can draw upon its inherent powers under section 9 for developing this field of liability. In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat, Sahai, J., observed: truly speaking the entire law of torts is founded and structured on morality. 3|Page Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortious liability by court would be conducive. Nature of Torts  Tort and crime Historically tort had its roots in criminal procedure. Even today there is a punitive element in some aspects of the rules on damages. However tort is a species if civil injury or wrong. The distinction between civil and criminal wrongs depends on the nature of the remedy provided by law. A civil wrong is one which gives rise to civil proceedings. A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. Sometimes the same wrong is capable of being made the subject of proceedings of both kinds. For example assault, libel, theft, malicious injury to property etc. in such cases the wrong doer may be punished criminally and also compelled in a civil action to make compensation or restitution. Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where the appropriate remedy for it is an action for unliquidated damages. Thus for example, public nuisance is not a tort merely because the civil remedy of injunction may be available at the suit of the attorney general, but only in those exceptional cases in which a private person may recover damages for loss sustained by him in consequence thereof. However it has to be born in mind that a person is liable in tort irrespective of whether or not an action for damages has been given against him. The party is liable from the moment he commits the tort. Although an action fro damages is an essential mark of tort and its characteristic remedy, there may be and often other remedies also. 4|Page   Difference between crime and tort Being a civil injury, tort differs from crime in all respects in which a civil remedy differs from a criminal one. There are certain essential marks of difference between crime and tort they are: Tort is an infringement or privation of private or civil rights belongigng to individuals, whereas crime is a breach of public rights and duties which affect the whole community. In tort the wrong doer has to compensate the injured party whereas in crime, he is punished by the state in the interest of the society. In tort the action is brought about by the injured party whereas in crime the proceedings are conducted in the name of the state. In tort damages are paid for compensating the injured and in crime it is paid out of the fine which is paid as a part of punishment. Thus the primary purpose of awrding compensation in a criminal prosecution is punitive rather than compensatory. The damages in tort are unliquidated and in crime they are liquidated.  Resemblance between crime and tort There is however a similarity between tort and crime at a primary level. In criminal law the primary duty, not to commit an offence, for example murder, like any primary duty in tort is in rem and is imposed by law. The same set of circumstances will in fact, from one point of view, constitute a crime and, from another point of view, a tort. For example every man has the right that his bodily safety shall be respected. Hence in an assault, the sufferer is entitled to get damages. Also, the act of assault is a menace to the society and hence will be punished by the state. However where the same wrong is both a crime and a tort its two aspects are not identical. Firstly, its definition as a crime and a tort may differ and secondly, the defences available for both crime and tort may differ. The wrong doer may be ordered in a civil action to pay compensation and be also punished criminally by imprisonment or fine. If a person publishes a defamatory article about another in a newspaper, both a criminal prosecution for libel as well as a civil action claiming damages for the defamatory publication may be taken against him. In P.Rathinam. 5|Page v. Union of India, the Supreme Court observed, In a way there is no distinction between crime and a tort, inasmuch as a tort harms an individual whereas a crime is supposed to harm a society. But then, a society is made of individuals. Harm to an individual is ultimately the harm to the society. There was a common law rule that when the tort was also a felony, the offender would not be sued in tort unless he has been prosecuted in felony, or else a reasonable excuse had to be shown for his non prosecution. This rule has not been followed in India and has been abolished in England.  Tort and contract The definition given by P.H. Winfield clearly brings about the distinction between tort and contract. It says, Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. A contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties. According to Salmond, a contract arises out of the exercise of the autonomous legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations. At the present day, tort and contract are distinguished from one another in that, the duties in the former are primarily fixed by law while in the latter they are fixed by the parties themselves. Agreement is the basis for all contractual obligations. “People cannot create tortious liability by agreement. Thus I am under a duty not to assault you, not to slander you, not to trespass upon your land because the law says that I am under such duty and not because I have agreed with you to undertake such duty. Some of the distinctions between tort and contract are given below: A tort is inflicted against or without consent; a contract is founded upon consent. In tort no privity is needed, but it is necessarily implied in a contract. 6|Page  A tort is a violation in rem (right vested in some person and available against the world at large.); a breach of contract is an infringement of a right in personam ( right available against some determinate person or body). Motive is often taken into consideration in tort, but it is immaterial in a breach of contract. In tort the measure of damages is not strictly limited nor is it capable of being indicated with precision; in a breach of contract the measure of damages is generally more or less nearly determined by the stipulations of the parties. In certain cases the same incident may give rise to liability both in contract and in tort. For example, when a passenger whilst traveling with a ticket is injured owing to the negligence of the railway company, the company is liable for a wrong which is both a tort and a breach of a contract. The contractual duty may be owed to one person and the duty independent of that contract to another. The surgeon who is called by a father to operate his daughter owes a contractual duty to the father to take care. If he fails in that duty he is also liable for a tort against the daughter. In Austin v. G.W. Railway, a woman and her child were traveling in the defendant’s train and the child was injured by defendant’s negligence. The child was held entitled to recover damages, for it had been accepted as passenger. There is a well established doctrine of Privity of Contract under which no one except the parties to it can sue for a breach of it. Formerly it was thought that this principle of law of contract also prevented any action being brought under tortuous liability. But this fallacy was exploded by the House of Lords in the celebrated case of Donoghue v. Stevenson. In that case a manufacturer of ginger beer had sold to a retailer, ginger beer in a bottle of dark glass. The bottle, unknown to anyone, contained the decomposed remains of a snail which had found its way to the bottle at the factory. X purchased the bottle from the retailer and treated the plaintiff, a lady friend (the ultimate consumer), to its contents. In consequence partly of what she saw and partly of what she had drunk, she became very ill. She sued the manufacturer for negligence. This was, of course, no contractual duty on the part of the manufacturer towards her, but a majority of the House of Lords held that he owed a duty to 7|Page take care that the bottle did not contain noxious matter and that he was liable if that duty was broken. The judicial committee of the Privy Council affirmed the principle of Donoghue’s case in Grant v. Australian Knitting Mills Ltd. Thus contractual liability is completely irrelevant to the existence of liability in tort. The same facts may give rise to both. Another discrepancy between contracts and torts is seen in the nature of damages under each. In contracts the plaintiff will be claiming liquidated damages whereas in torts he will be claiming unliquidated damages. When a person has filed a suit or put a claim for the recovery of a predetermined and fixed sum of money he is said to have claimed liquidated damages. On the other hand when he has filed a suit for the realization of such amount as the court in its discretion may award, he is deemed to have claimed unliquidated damages.  Tort and Quasi-Contract Quasi contract cover those situations where a person is held liable to another without any agreement, for money or benefit received by him to which the other person is better entitled. According to the Orthodox view the judicial basis for the obligation under a quasi contract is the existence of a hypothetical contract which is implied by law. But the Radical view is that the obligation in a quasi contract is sui generis and its basis is prevention of unjust enrichment. Quasi contract differs from tort in that: There is no duty owed to persons for the duty to repay money or benefit received unlike tort, where there is a duty imposed. In quasi contract the damages recoverable are liquidated damages, and not unliquidated damages as in tort. Quasi contracts resembles tort and differs from contracts in one aspect. The obligation in quasi contract and in tort is imposed by law and not under any agreement. In yet another dimension quasi contract differs from both tort and contract. If, for example, A pays a sum 8|Page of money by mistake to B. in Quasi contract, B is under no duty not to accept the money and there is only a secondary duty to return it. While in both tort and contract, there is a primary duty the breach of which gives rise to remedial duty to pay compensation. Constituents of Tort The law of torts is fashioned as an instrument for making people adhere to the standards of reasonable behaviour and respect the rights and interests of one another. This it does by protecting interests and by providing for situations when a person whose protected interest is violated can recover compensation for the loss suffered by him from the person who has violated the same. By interest here is meant a claim, want or desire of a human being or group of human beings seeks to satisfy, and of which, therefore the ordering of human relations in civilized society must take account. It is however, obvious that every want or desire of a person cannot be protected nor can a person claim that whenever he suffers loss he should be compensated by the person who is the author of the loss. The law, therefore, determines what interests need protection and it also holds the balance when there is a conflict of protected interests. Every wrongful act is not a tort. To constitute a tort, There must be a wrongful act committed by a person;The wrongful act must be of such a nature as to give rise to a legal remedy and Such legal remedy must be in the form of an action for unliquidated damages.  WrongfulAct An act which prima facie looks innocent may becomes tortious, if it invades the legal right of another person. In Rogers v. Ranjendro Dutt , the court held that, the act complained of should, under the circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him in some legal right; merely that it will however directly, do him harm in his interest is not enough. A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights 9|Page available against the world at large are very numerous. They may be divided again into public rights and private rights. To every right, corresponds a legal duty or obligation. This obligation consists in performing some act or refraining from performing an act. Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.  Damage In general, a tort consists of some act done by a person who causes injury to another, for which damages are claimed by the latter against the former. In this connection we must have a clear notion with regard to the words damage and damages. The word damage is used in the ordinary sense of injury or loss or deprivation of some kind, whereas damages mean the compensation claimed by the injured party and awarded by the court. Damages are claimed and awarded by the court to the parties. The word injury is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not. The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria and Injuria Sine Damno.  Damnum Sine Injuria (Damage Without Injury) There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage without injury. Damage without breach of a legal right will not constitute a tort. They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one’s own premises. In Gloucester Grammar School Master Case , it had been held that the plaintiff school master had no right to complain of the opening of a new school. The damage suffered was mere damnum absque injuria or damage without injury. Acton v. Blundell, in which a mill owner drained off underground water running into the plaintiff’s 10 | P a g e well, fully illustrate that no action lies fro mere damage, however substantial, caused without the violation of some right. There are moral wrongs for which the law gives no remedy, though they cause great loss or detriment. Los or detriment is not a good ground of action unless it is the result of a species of wrong of which the law takes no cognizance.  Injuria Sine Damno ( injury without damage) This means an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of action. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right. Every person has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of special damage. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. This principle was firmly established by the election case of Ashby v. White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The candidate fro whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff.  Remedy The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no wrong without a remedy’. If a man has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; 11 | P a g e and indeed it is a vain thing to imagine a right without remedy; want of right and want of remedy are reciprocal. Where there is no legal remedy there is no wrong. But even so the absence of a remedy is evidence but is not conclusive that no right exists. Some General Conditions In Torts Act And Omission- To constitute a tort there must be a wrongful act, whether of omission or commission, but not such acts as are beyond human control and as are entertained only in thoughts. An omission is generally not actionable but it is so exceptionally. Where there is a duty to act an omission may create liability. A failure to rescue a drowning child is not actionable, but it is so where the child is one’s own. A person who voluntarily commences rescue cannot leave it half the way. A person may be under duty to control natural happenings to his own land so as to prevent them from encroaching others’ land. Voluntary and Involuntary Acts- a voluntary act has to be distinguished from an involuntary act because the former may involve liability and the latter may not. A self willed act like an encroachment fro business, is voluntary, but an encroachment for survival may be involuntary. The wrongfulness of the act and the liability for it depends upon legal appreciation of the surrounding circumstances. Malice- malice is not essential to the maintenance of an action for tort. It is of two kinds, ‘express malice’ (or malice in fact or actual malice) and ‘malice in law’ (or implied malice). The first is what is called malice in common acceptance and means ill will against a person; the second means a wrongful act done intentionally without just cause or excuse. Where a man has a right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense. An act, not otherwise unlawful, cannot generally be made actionable by an averment that it was done with evil motive. A malicious motive per se does not amount to injuria or legal wrong. 12 | P a g e  Intention, motive, negligence and recklessness- The obligation to make reparation for damage caused by a wrongful act arises from the fault and not from the intention. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair it necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad or indifferent. A thing which is not a legal injury or wrong is not made actionable by being done with a bad intent. It is no defence to an action in tort for the wrong doer to plead that he did not intend to cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his volition. A want of knowledge of the illegality of his act or omission affords no excuse, except where fraud or malice is the essence of that act or omission. For every man is presumed to intend and to know the natural and ordinary consequences of his acts. This presumption is not rebutted merely by proof that he did not think of the consequences or hoped or expected that they would not follow. The defendant will be liable for the natural and necessary consequences of his act, whether he in fact contemplated them or not. Malfeasance, misfeasance and nonfeasance- 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 negligence or malice. The term ‘misfeasance’ is applicable to improper performance of some lawful act. The term ‘non-feasance’ applies to the failure or omission to perform some act which there is an obligation to perform. Fault- liability for tort generally depends upon something done by a man which can be regarded as a fault fro the reason that it violates another man’s right. But liability may also arise without fault. Such liability is known as absolute or strict liability. An important example is the rule in Rylands v. Fletcher thus the two extremes of the law of tort are of non liability even where there is fault or liability without fault. Between these two extremes is the variety of intentional and negligent wrongs to the question whether there is any consistent theory of liability, all that can be said is that it wholly depends upon flexible public policy, which in turn is a reflection of the compelling social needs of the time. 13 | P a g e  General Principles of Liability There are two theories with regard to the basic principle of liability in the law of torts or tort. They are: Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law. Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist. The first theory was propounded by Professor Winfield. According to this, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying, my duty is to hurt nobody by word or deed. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher. The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbour as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort. The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort. The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes in untenable. However salmond argues in favour of his theory that just as criminal law consists of a body of rules establishing specific offences, so 14 | P a g e the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted fro an alleged offence or sued fro an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort. There is, however, no recognition of either theory. It would seem more realistic fro the student to approach the tortious liability from a middle ground. In an Indian decision, Lala Punnalal v. Kasthurichand Ramaji, it was pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts. On the whole if we are asked to express our preference between the two theories, in the light of recent decisions of competent courts we will have to choose the first theory of liability that the subsequent one. Thus it is a matter of interpretation of courts so as to select between the two theories. The law of torts has in the main been developed by courts proceeding from the simple problems of primitive society to those of our present complex civilization. Conclusion Thus to conclude, law of torts is a branch of law which resembles most of the other branches in certain aspects, but is essentially different from them in other respects. Although there are differences in opinion among the different jurists regarding the liability in torts, the law has been developed and has made firm roots in the legal showground. There are well defined elements and conditions of liability in tort law. 15 | P a g e 1.2 Damnum sine injuria and injuria sine Damnum At the outset, two important terms used in the law of torts need to be clarified. By “damnum” is meant damage in the ordinary sense, that is, as the layman understands it. This may be a loss of money, physical hurt, loss of health or service, or the like. By "injuria” is meant a legal injury. This injuria may or may not be accompanied by damnum, that is, actual loss or damage. Every possible form of harm or damage is not recognised by the law. The law takes no account of several forms of harm. Thus, for instance, a violation of the rules of ethics does not always amount to an infringement of a legal right. In order to make a person liable in law, the plaintiff must, therefore, prove legal injury. Damage without injury (damnum sine injuria) is not actionable. There are many acts which, though harmful, are not wrongful in the eyes of law, and therefore, do not give rise to a right of action in favour of the person who sustains the harm. No one is to be considered a wrongdoer who merely avails himself of his legal rights, though his action may result in loss or damage to another. (See Gloucester Grammar School case and Chasemore v. Richards, discussed later.) Damnum sine injuria In case of damnum since injuria, that is, actual and substantial loss without infringement of any legal right, no action lies, that is, no suit can be filed. Mere loss of money or money's worth does not, of itself, constitute legal damage. The most terrible harm may be inflicted by one man on another without legal redress being obtainable. There are many acts which, though harmful, are not wrongful and give no right of action. Damnum may be absque (that is, without) injuria. Thus, if X has a flour mill, and his neighbour sets up another mill adjacent to that of X, and thereby the profits of X's mill fall, X cannot bring an action against the neighbour; and yet X has suffered substantial financial loss (damnum). But if the other mill-owner hinders the water from running to X's mill or causes any other like nuisance (injuria), X will have a legal remedy against the other person. Principle of the maxim The cases which illustrate the maxim, damnum sine injuria, are many in number, but the underlying principle is that the exercise of one's common or ordinary rights within reasonable limits does not give rise to an action in tort, merely because it causes some loss or damage to another. The reason underlying the rule is simple, namely, that it would be impossible to carry on the common affairs of life without doing various things which are more or less likely to cause loss or inconvenience to others. In every civilised society, the exercise, however legitimate, by each member of his particular rights, or the discharge, 1|Page however legitimate, by each member of his particular duties, can hardly take place without occasionally causing a conflict of interest which will be detrimental to some others. As the Privy Council pointed out, in ROGER v. RAJENDRA DUTT, (1860) 8 M. I. A. 103, "it is essential to an action in tort that the act complained of, should under the circumstances, be legally wrongful as regards the party complaining, that is, it must precisely affect him in some legal right". A few cases where the courts have recognised this maxim may now be discussed. Gloucester Grammar School Case (1410 Y. B. 11 Hen.4) The defendant, a schoolmaster, set up a rival school next to that of the plaintiff, with the result that the boys from the plaintiff's school flocked to the defendant's. The plaintiff sued the defendant for the loss. It was held that no suit could lie because bona fide competition can afford no ground of action, whatever damage it may cause. It may be noted that although free and fair competition is allowed, a competition in which the legal rights of a rival are infringed, will be a good ground for action. Thus, an action lies against a person for causing injury to another by illegally interfering with the latter's trade, business or employment. Thus, in the Gloucester Grammar School case (above), if besides setting up a rival school, the defendant had interfered with the plaintiff by illegal means, as for example, by intimidating the students of the plaintiff's school, so that they cease to go there, the defendant would have been liable. In such a case, the plaintiff would be entitled to damages or injunction or both. PROBLEM-"Best Coaching Classes" were started in the vicinity of "Success Coaching". As a result, the latter had to close down their classes. Can Success Coaching Classes take any action in the matter? Ans. ― No. Free and fair competition does not amount to a tort, even if actual loss is caused thereby. It is a case of damnum sine injuria. (See Gloucester Grammar School's case, above.) MOGHUL STEAMSHIP CO. v. McGREGOR (1892) A. C. 25 (Shipowner's case) - This case affords another interesting illustration of damage caused by fair competition. In this case A, B, C and D, shipowners, who shipped tea from one port to another, combined together to drive F, a rival shipowner, out of the trade, by offering special terms to customers who would deal with them to the exclusion of F. When F sued A, B, C and D for the loss caused to him by their act, it was held that F had no right of action, for no legal right of F had been infringed. Damage caused by competition in trade is not actionable. [To-day, however, such trade combines are controlled by legislation relating to anti- competitive trade practices, as for instance, the Competition Act, 2002 in India.] 2|Page Chasemore V. Richards, (1895) 7 H. L. C. 349 (Watermill Case) In this case the plaintiff was the owner of an ancient watermill. For more than 60 years, the occupier of the mill had been using and enjoying the flow of a river for the purpose of working the mill. The Local Board of Health (whom the defendant represented) sank a well in its own land and pumped up large quantities of water, with the result that percolating underground water which would have found its way to the river and helped to work the plaintiff's mill, was obstructed. With the diminution of water in the river, the plaintiff found it impossible to work his mill. The plaintiff sought to make the defendant liable, but the Court held that the doing of an act which is otherwise lawful cannot give rise to an action in tort, however much it may be attended with loss to the party complaining. In one interesting case decided by the Gujarat High Court, a suit was filed against the Producer, Writer, Director and Distributor of a Hindi film, "Jai Santoshi Ma", on the ground that certain scenes in the movie would hurt the religious feelings of persons believing in the Hindu religion and mythology. The Court held that the courts of law have not recognised hurt to religious feelings as a civil actionable wrong. It was therefore held that no legal right of the plaintiffs was infringed. The Court observed that the mere fact that the defendants' movie might have shocked the religious sentiments of the plaintiffs is not itself a matter which would give rise to a cause of action. (Ushaben Trivedi & Another v. Bhagyalaxmi Chitra Mandir & Others, A.I.R. 1978 Guj. 13) In another case decided by the Allahabad High Court, the principal of a college, misinterpreting the regulations of the Board of Education, detained a student for shortage of attendance. Later, his detention was found by the Court to be illegal, but, by then, the student had already lost one year, and filed a suit for compensation for the loss of a year. The Court observed that every breach of a legal provision does not give rise to an action in tort, and the mere fact that the Principal had misinterpreted the regulations did not mean that he had committed an actionable wrong. It was, therefore, held that the suit was not maintainable. (V. D. Sharma v. Board of High School & Intermediate Education & Others, A.I.R. 1981 All. 46) [The ruling of the Allahabad High Court in the above case is not free from controversy, because it is arguable that the student had, in fact, lost one year and thus sustained a legal injury on account of the wrong interpretation of the regulations by the college principal.] Earl Cowley V. Countess Cowley, (1901) A. C. 405. Miss X, a commoner, married a peer, Earl Cowley, and thereby acquired the title of Countess. However, even after the marriage was dissolved by the Court at her instance, she continued to use the title. On a suit filed by her ex-husband, the Court held that although she 3|Page I did not have a right to do so, she did not thereby commit such legal wrong against her former husband which would entitle him to an injunction to restrain her from using the title. Butt V. Imperial Gas Company, (1866) L. R. 2 Ch. App. 158. Mr. B carried on his business in a shop which had a board to indicate the materials in which he dealt. Under certain statutory powers, a Gas Company erected a gas meter, which obstructed the view of this board. Mr. B sued the Gas Company, calling upon the court to restrain the company from erecting the gas meter. The court held that no injunction could be granted in the circumstances. Dhahphale V. Gurav, (1881) 6 Bom. 122. This was a case where the servants of a Hindu temple had a right to get food offered to the idol, but the person who was under an obligation to offer food, did not do so. The servants brought a suit against him for damages. It was held that the defendant was under no legal obligation to supply food to the temple's servants, and though his omission to supply food to the idol might involve a loss to the plaintiffs, it was a case of damnum sine injuria, and the plaintiffs could not therefore maintain the suit. Rouse V. Gravel Works Ltd., (1940) 1 Κ. Β. 489 (Gravel Case) The plaintiff owned a field which he cultivated. The defendants were the owners of adjoining land containing gravel, which they excavated in the course of their business as gravel merchants. The excavated area, which was close to the boundary of the plaintiff's land, became filled with water from rain and percolation, thus forming a pond. The water, by being blown against a strip of the plaintiff's land by wind, removed some material from the land, deprived the land of lateral support and prevented the plaintiff from making a profitable use of the strip. In an action by the plaintiff for damages, it was held that the defendants had a legal right to excavate the gravel on their land, and the accumulation of the water in excavation and its effects upon the plaintiff's land were caused, not by the direct action of the defendants, but by the natural agencies of rain, percolation and wind, over which the defendants had no control and for which they were not responsible. Day V. Browning, (1878) 13 Ch. D. 394 ('Ashford Lodge' Case) The plaintiff's house was called "Ashford Lodge" for sixty years and the adjoining house belonging to the defendant was called "Ashford Villa for forty years. The defendant then altered the name of his house and called it Ashford Lodge. The plaintiff alleged that this act of the defendant had caused him great inconvenience and annoyance and had materially diminished the value of the property. It was held that the defendant was not liable as he had not violated any legal right of the plaintiff. 4|Page Problems 1. A was a manageress of Jay Ltd., a firm dealing in ladies' clothes. For several years, A was known to her customers started as Miss Jay. A, after leaving the service of Jay Ltd., a rival establishment in the name of Miss Jay. On seeing this, Jay Ltd. sued A for deceptive use of their trade name. Advise A. Ans. In these circumstances, Jay Ltd. will not succeed, as it is a case of damnum sine injuria: Jay's Ltd. v. Geobi (1933) 102 L. J. 130. 2. A University, through oversight, did not place the name of a student who had in fact passed the examination, in the list of successful candidates published by the University. Can the student sue the University for a declaration that he has passed the examination? Ans. The Allahabad High Court has held that, in such a case, the student cannot maintain such an action, on the ground that no action would lie to vindicate a right to mere dignity, unconnected to any fees or profits. (Ram Sing v. Benaras Hindu University, (1924) 47 All. 434 [It is indeed debatable if it can be said that the student had filed the suit to vindicate a right to mere dignity.] Injuria sine damnum This maxim is just the reverse of the maxim discussed above. This maxim refers to injury without damage. Whenever there is an invasion of a legal right, the person in whom the right is vested is entitled to bring an action and may recover damages, although he Imay have suffered no actual loss or harm. Where a tort is actionable, although it has not been the cause of any actual damage, it is a case of injuria sine damnum (that is, infringement of a legal right without damage). Actual perceptible damage need not be proved; it is sufficient to show the violation of a legal right, in which case, the law will presume damage. Thus, in cases of assault, battery, false imprisonment and trespass on land, the mere wrongful act is actionable without proof of any actual damage. Every invasion of private property, be it howsoever minute, is a trespass, though there may be no actual damage. Similarly, libel (written defamation) is actionable, even though the person defamed may not actually have suffered even the slightest loss. Ashby V. White, (1703) 2 Ld. Raym. 938 (Refusal To Register Vote) In this case, which is the leading English case illustrating the maxim, the defendant, a returning officer at a voting booth, wrongfully and maliciously refused to register a duly tendered vote of the plaintiff who was a qualified voter. The candidate for whom the vote was sought to be tendered was, however, elected, and no actual loss was suffered by the 5|Page rejection of the plaintiff's vote. The Court held that nevertheless the suit would succeed. The suit was allowed on the ground that the violation of the plaintiff's statutory right was an injury for which he must have a remedy and was actionable without proof of actual damage. In Ashby v. White (above), the returning officer had acted with malice. Where, however, the returning officer had acted without any malice or improper motives and had honestly refused to accept the vote of a genuine voter, it was held that he could not be sued in tort. (Tozer v. Child, 1857, 7 El & B 377) The ruling in ASHBY v. WHITE, has been followed in India in THE MUNICIPAL BOARD OF AGRA v. ASHARFILAL (1921) 44 All. 202). In that case, it was held that if a voter's name is wrongly omitted from the electoral roll, he suffers a legal wrong for which he can file a suit. Courts in India have taken the view that, in such cases, express malice need not be proved. If it is shown that the refusal to register a vote is not in good faith, the returning officer would be liable in tort. (Draviam Pillai v. Cruz Fernandes, AIR 1916 Mad. 569) In an interesting American case (Morningstar v. Fafayette Hotel Company, 211 N.Y. 465, 105 N.E. 656), the plaintiff, who was a guest at the defendant's hotel, was fed up with the food served at the hotel. So, he purchased some spare ribs from outside and gave them to the hotel chef to be cooked and brought to his room. This was done, but the spare ribs were accompanied by a bill for one dollar, which the plaintiff refused to pay. The following morning, the plaintiff was publicly informed at the breakfast table that he would not be served. The plaintiff sued for wrongful refusal of service, including damages for humiliation and injury to his feelings. The Court held in favour of the plaintiff on the ground that his legal right had been infringed. Cardozo J., in the course of the judgement, observed as follows: "It is no concern of ours that the controversy at the root of this law suit may seem to be trivial. However, to enforce one's rights when they are violated is never a legal wrong, and may often be a moral duty." Marzetti V. Williams (1830 1 B. & Ad. 415) (Bankers' Case) An action will lie against a banker, having sufficient finds in his hands belonging to a customer, for refusing to honour the customer's cheque, although the customer may not thereby sustain any actual Toss or damage. In this case, a banker, having such funds, refused to honour the customer's cheque. Although the customer did not suffer any actual loss, the Court held that he was entitled to damages. Conclusion The combined effect of the two maxims is that there are moral wrongs for which the law gives no legal remedy although they cause great loss or detriment. On the other hand, there are legal wrongs for which the law does give a legal remedy, although there is only a violation of a legal right without any actual loss or detriment. 6|Page 1.3 Differentiate Tort from Crimes and Breach of Contract The distinction between torts, crimes, and breaches of contract lies primarily in the nature of the wrongdoing, the parties involved, and the legal remedies available. Here's a breakdown of each: (1) Tort A tort is a civil wrong that causes harm or injury to another person or their property, leading to legal liability. It typically involves the violation of a duty owed to others, and the person harmed may seek compensation (damages) through a civil lawsuit.  Nature: Private wrongs that harm individuals or groups, typically arising from negligence, intentional misconduct, or strict liability.  Examples: Personal injury, defamation, trespassing, medical malpractice, product liability.  Objective: To compensate the injured party for harm or loss (usually financial compensation).  Parties Involved: The victim (plaintiff) and the wrongdoer (defendant).  Burden of Proof: The injured party (plaintiff) must prove the defendant’s liability by a "preponderance of the evidence" (i.e., more likely than not).  Penalties: Mostly compensatory damages or injunctions, not criminal punishment. (2) Crime A crime is an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law. Crimes are considered offenses against society or the state, even if an individual is harmed.  Nature: Public wrongs that threaten societal order or public safety, regulated by criminal law.  Examples: Theft, assault, murder, robbery, fraud, drug offenses.  Objective: To punish the wrongdoer (usually through imprisonment, fines, or other penalties) and deter future offenses.  Parties Involved: The state (prosecutor) and the defendant.  Burden of Proof: The prosecution must prove the defendant's guilt "beyond a reasonable doubt."  Penalties: Criminal penalties can include imprisonment, fines, probation, and in some cases, the death penalty.  (3) Breach of Contract A breach of contract occurs when one party fails to perform a legally binding agreement as specified in a contract without a legitimate excuse. Contract law governs the rights and obligations of parties in a contractual relationship.  Nature: A civil matter related to the enforcement of promises or obligations made under a contract.  Examples: Failure to deliver goods or services, non-payment for goods, not performing agreed terms.  Objective: To enforce the agreement and provide remedy for the non-breaching party, often through damages or specific performance.  Parties Involved: The parties to the contract, known as the "contracting parties."  Burden of Proof: The party claiming breach (plaintiff) must prove the existence of the contract, its terms, and that the other party failed to perform.  Penalties: Remedies include compensatory damages (actual losses), consequential damages (indirect losses), and in some cases, specific performance (forcing the party to fulfill the contract). Key Differences: Aspect Tort Crime Breach of Contract Civil wrong, harm to Public wrong, harm to Civil wrong, failure to perform a Nature individuals society contractual obligation Compensation for the Punishment and Enforcement of contract terms, Objective victim deterrence compensation Party Initiating Private party (plaintiff) State (prosecutor) Private party (plaintiff) Action Preponderance of the Beyond a reasonable Burden of Proof Preponderance of the evidence evidence doubt Compensatory damages, Imprisonment, fines, Compensatory damages, specific Penalties injunctions probation performance Personal injury, Non-payment, failure to deliver Examples Murder, theft, assault defamation, trespass goods/services Summary:  Torts focus on harm to individuals, and the remedy is usually financial compensation.  Crimes involve actions that harm society, and the focus is on punishing the wrongdoer.  Breach of contract pertains to the failure to fulfill agreed terms in a contract, with the remedy being the enforcement of the contract or compensation for the breach. Each of these legal concepts operates within different branches of law (civil law for torts and breaches of contract, criminal law for crimes) and has distinct processes, burdens of proof, and penalties. 1.4 Capacity of person to sue and be sued This Chapter is discussed under the following two heads: A. Who cannot sue B. Who cannot be sued. A. Who Cannot Sue Ordinarily, all persons are entitled to sue in tort. But there are seven exceptions to this rule. These seven classes of persons cannot sue or can sue only subject to certain limitations discussed below: 1.An alien enemy 2.Felons or convicts 3.Bankrupts 4.Husband and Wife 5.Corporations 6.A child in the womb 7.A foreign State. 1. An alien enemy An “alien enemy" is any person of enemy nationality or a person (whatever his nationality) residing in enemy territory. Such a person's right to sue for a tort is subject to certain conditions. In England, he cannot maintain an action, except when allowed by an Order-in-Council or unless he comes into British Dominions under a flag of truce. In India, an alien enemy cannot sue unless he obtains the permission of the Central Government under S. 83 of the Civil Procedure Code. 2. Felons or convicts A felon or convict is a person against whom a judgement of death or penal servitude has been pronounced on any charge of treason or felony. In England, before 1948, a convict whose sentence was in force and unexpired and who was not lawfully at large could not sue for any damage to his property or for recovery of a debt. However, this disability was removed by the Criminal Justice Act, 1948. In India, until 1921, certain offences entailed forfeiture of the property of the offender, disabling him from suing for any injury inflicted on his property (as he had none). But forfeiture has now been abolished except in three cases (referred to in Ss. 126, 127 and 169 1|Page of the Indian Penal Code). Today, a convict in India may sue for torts both to his person and his property. 3. Bankrupts A bankrupt is also under a disability to sue for wrongs in respect of his property, for, in bankruptcy, all his property vests in a Trustee in Bankruptcy according to English Law, and the Official Assignee or the Official Receiver (as the case may be) under Indian Law. So, under either system of law, the right of action for a tort or injury to property I will vest in the Trustee, Assignee or the Receiver for the benefit of the insolvent's creditors. But in the case of personal wrongs (as for instance, assault, defamation, or seduction of servants), the right to sue is not taken away. Where, however, a tort causes injury both to the person and property, the right of action will be split, and will pass, so far as it relates to property, to the Trustee or Official Assignee or the Official Receiver, as the case may be, and will remain in the bankrupt so far as it relates to his person. 4. Husband and Wife Formerly, in England, a wife could not sue her husband for a tort; nor could a husband sue his wife, following the principle of English law that husband and wife are, in the eyes of the law, one person. By virtue of the Married Women's Property Act, 1882, a wife could sue her husband for the protection and security of her separate property. But the husband had no such corresponding right against the wife. A wife could not sue her husband for his ante-nuptial tort; nor could she sue him for a personal wrong such as assault, libel or injury caused to her by her husband's negligence. So, in those days, it was rightly said that a husband may, with impunity, break his wife's wrist, but not her wrist-watch! So also, a divorced wife could not sue her husband for personal tort committed during coverture (that is, whilst married). The Law Reform (Husband and Wife) Act, 1962, made drastic changes in the English Law on the point and under this Act, both husband and wife now have the same rights of action in tort against the other as they would have if they had not married each other. In India, the notion of the legal identity of husband and wife does not apply, and therefore, an action in tort by one spouse against the other is maintainable. Suit by one spouse against a third party for injury caused to the other spouse. - In 1974, the Supreme Court of California laid down that a married partner can sue a third party for damages if the injuries to a spouse deprive him or her of conjugal fellowship and sexual relations. Overruling its earlier decision of 1958, the Court held that a wife can sue for the loss which she personally suffered because of injury to her husband. In this case, the 22- year old husband was paralysed for life when a 600-pound pipe fell on him. His 20-year old wife was held entitled to sue the third party (who was responsible for the mishap) for loss of earnings as a secretary and the value of nursing care she had to provide for her husband. 2|Page 5. Corporations A corporation cannot maintain an action for personal wrongs, for, by its very nature, such injuries cannot be inflicted on a corporation. But, a corporation can sue for a libel affecting its property or business. In general, a corporation may sue for any tort in the same way as an individual. The only qualifications are: (i) The tort must not be a kind which is impossible to commit against a corporation, for example, assault or false imprisonment. (ii) (ii) In case of defamation, it must be shown that the defamatory matter has a tendency to cause actual damage to the corporation in respect of its property or business. Thus, a trading corporation may maintain a suit if it is charged with insolvency or with dishonest management. A corporation may sue for a libel or any other wrong affecting its property or business. It cannot, however, maintain an action for personal wrongs, as for instance, a libel charging the corporation with corruption, for it is only individuals, and not the corporation in its corporate capacity, who can be guilty of such an offence. (Mayor of Manchester v. Williams, (1891) 1 Q. B. 94) The case of the Mayor of Manchester (above) has however been distinguished, and its ruling doubted in a later English case, where it has been held that a corporation has a right to sue, not only for a libel affecting its property, but also for one affecting its personal reputation. (Bognor Regic UDC v. Campion) (1972) 2 All E. R. 61 A corporation can, however, sue for defamation if the words, spoken or written, are defamatory when directed against an individual and damage, actual or threatened, is suffered by the corporation. If a libel or slander affects the management of its trade or business, the corporation itself can sue. Thus, a corporation can sue for defamation if it is charged with insolvency or with dishonest or incompetent management. In short, a corporation can sue for any tort, except one of a purely personal nature. Unincorporated Associations and Trade Unions An unincorporated association of persons is not a legal entity and cannot sue or be sued as such. No action against a trade union, whether of workmen or masters or against any members or officials thereof in respect of any tortuous act alleged to have been committed by or on behalf of the trade union can be entertained in any court (S. 4, Trade Disputes Act, 1906) This provision confers immunity on Trade Unions in respect of any tort, whether connected with a trade dispute or not, but the individual tort-feasors remain personally liable. It is to be noted, however, that this immunity does not extend to a strike or lock-out. (S. 1, Trade Disputes and Trade Unions Act, 1927) 6. A child in the womb An infant can sue for any tort committed against him, subject to the procedural rule that he must sue by his 'next friend' or guardian: but he cannot maintain an action for injuries sustained en venture sa mere (that is, when he was in his mother's womb). 3|Page  WALKER V. GREAT NORTHERN RAILWAY, (1890) 28 L. R. Ir. 69. In this case, a pregnant woman was injured in a railway accident, as a result of which the child was born deformed. The Court held that the child could not maintain an action for damages. The decision appears to be based on the ground that there was no duty of care to an unborn person. It may, however, be noted that when a similar case arose in Canada. the Supreme Court of Canada granted compensation to the infant. 7. A foreign State In England, a foreign State cannot sue in any Court, unless such State has been recognised by Her Majesty. In India, under Sec. 84 of the Civil Procedure Code, a foreign State may sue in any Court in India, provided that such State has been recognised by the Central Government and provided that the object of the suit is to enforce a private right vested in the head of State or in any officer of such State in his public capacity. B. Who Cannot Be Sued The following nine classes of persons cannot be sued in tort, subject to certain exceptions discussed below: 1. The Crown (or Government) 2. Foreign sovereigns 3. Ambassadors 4. Public officials 5. Infants (Minors) 6. Lunatics and drunkards 7. Corporations 8. Trade Unions 9. Married women. 4|Page 1. The Crown (or Government) ENGLISH LAW Earlier, an action for a personal wrong would not lie against the sovereign under the outdated and severely criticised English maxim, "The King can do no wrong." It followed, therefore, that the Crown could not be sued for the tortuous acts of its servants acting in the course of their employment. The historic and jurisprudential support for the doctrine of State immunity can be found in the following famous words of Blackstone in 1887: "The King can do no wrong. The king, moreover, is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing; in him is no folly or weakness." In the early twentieth century, the chief proponent of the doctrine of sovereign immunity was Mr. Justice Homes, who (in Kawanakoa v. Polybank, (1903) 205 U. S. 349) observed as follows: “A sovereign is exempt from suits, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." Today, the ground of exemption stated by Justice Holmes (above) appears neither logical nor practical, and total immunity of the State from tortuous liability is not acceptable in the modern context. The legal position in this respect has been drastically modified by the provisions of the Crown Proceedings Act passed in 1947. Effect of the Crown Proceedings Act The Crown Proceedings Act, 1947, has effected the two main changes: Firstly, the Crown is made liable in all cases in which, if it were a private person of full age and capacity, it would have been liable on the ordinary principles of vicarious liability. The law of contributory negligence also applies in proceedings against the Crown. Secondly, petitions of right are abolished. Liability in tort also extends to a breach by the Crown of any statutory duty. The law as to indemnity and contribution as between joint tort-feasors is also enforceable by or against the Crown. INDIAN LAW Under Article 361 of the Constitution of India, the President, Governors and Rajpramukhas of States are not answerable to any Court (1) for the exercise and performance of the powers and duties of their office or (2) for any act done by them in the exercise of those powers and duties. Though the general rule in India is that State is immune in the field of torts, this principle of immunity is subject to certain qualifications. The Constitution of India provides that the Government of India or of a State may sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces of Indian States might sue or be sued, if the Constitution had not been passed (Art. 300). Therefore, 5|Page the law which prevailed on the subject before 26th January, 1950, continues to remain in force, though it may be modified by legislation. The following five rules can be stated regarding the liability of Government: (i) The Government is liable for the torts of its servants in the course of a transaction which any private person can engage in. This principle was upheld by the Privy Council in Peninsular and Oriental Steam Navigation Co. v. The Secretary of State of India in Council (1868-69), 5 Bom. H. C. R. App. Cases, 1). In this case, it was held that the East India Company could be sued for the torts of its servants committed in the course of the transactions which it, as a trading company, engaged in. In a later case (Secretary of State for India in Council v. Shivranji, I. L. R. (1949) Nag. 875), the Government was held liable for the loss caused by an improper interference of a Forest Range Officer in the removal of timber by the plaintiff who had purchased a forest. (ii) The Government cannot however be sued in respect of acts done by the servants in the exercise of its sovereign powers. This principle has consistently been followed by the Indian Courts. It has been held that a suit will not lie against the Government as regards matters such as declaring a or making a treaty, annexation of a Native State, commandeering goods during a war, the use of land as a practice bombing ground by the army, etc. (iii) The Government is liable for injury to any of its subjects resulting from an act done by itself or by its servants if such act is done under colour of municipal law. For example, suits have been allowed against the Government for illegal levy of customs-duty under the Customs Act, illegal acquisition of land under the Land Acquisition Act, etc. (iv) The Government is liable to restore property or money wrongfully obtained or detained by it or by its servants on its behalf. (v) The Government is not liable for any wrong done by its servants in the course of their duty, unless the wrong was expressly authorised or ratified by it. It has been held that the Government is not liable for an improper arrest or seizure of property by a Police Officer. The principle involved is that the act done by a servant of the Government is done in exercise of the authority or discretion vested in him by the law or statute, and not in pursuance of any implied authority of the Government. (District Board of Bhagalpur v. Province of Bihar, (1954) Pat. 429) Case law In a leading Indian case, State of Rajasthan v. Vidyawati (A. I. R. 1962 S. C. 933), a motor-driver was employed on probation by the State of Rajasthan. While he was driving a jeep car to a workshop for repairs, he knocked down Jagdishlal, who was walking on the 6|Page footpath by the side of the public road. On account of multiple injuries received in the accident, Jagdishlal died three days later. The widow of Jagdishlal filed a suit against the driver and the State of Rajasthan, claiming Rs. 25,000/- as damages for the tort. In this case, the Supreme Court held that the State was liable for the tortuous acts of its servants like any other employer, and that the maxim, "The King can do no wrong", has no place in the Constitution of India. It was observed that the immunity of the Crown was based on a feudal concept not accepted or recognised in India. However, in Kasturilal v. State of U. P. (A. I. R. 1956 S.C. 1039), the Supreme Court held that the State was not liable for the tortuous acts of its servants where such acts were referable to the exercise of sovereign power. In the judgement, it was observed that the law on the question needed immediate reform. In Kasturilal's case (referred to above), the police officers of the State of U. P., acting in exercise of their statutory powers, seized gold from the appellant, and as a result of their negligence in dealing with its safe custody, the gold was not returned to him. In a suit filed by him against the State for return of the gold or its value, it was held by the Supreme Court that the act was committed by the employees of the State during the course of employment, and the employment in question being of a category which could have the special characteristics of sovereign power, the appellant's claim could not succeed. In Kasturilal's case (above), the distinction between acts done in the exercise of sovereign powers and acts not referable to the delegation of any sovereign powers was emphasised, and the Court observed as follows: "If a tortuous act is committed by a public servant, and it gives rise to a claim for damages, the question to ask is: Was the tortuous act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for the loss caused by such tortuous act will not lie. On the other hand, if the tortuous act has been committed by a public servant in discharging of the duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie." It may be noted that although the decision of the Supreme Court in Kasturilal's case (above) has not been overruled, subsequent decisions of the court have greatly undermined its authority and attenuated the sphere of sovereign immunity. As recently observed by a three-member Bench of the apex court, “much of its efficacy as a binding precedent has been eroded." The High Court of Jammu and Kashmir has reiterated the principle that the State is liable for the tortuous acts of its employees if such act is in discharge of a statutory function and is not referable to delegation of any sovereign powers. In this case, a head-on collision took place between a private vehicle and a water-tanker of the Border Security Force, due to the negligence of the driver of the tanker, and the Union Government was held liable for damages. (Union of India v. Abdul Rehman. A.I.R. 1981 J & K 60) In one case, A, a military driver of a School of Artillery, was transporting in a truck, a machine for locating enemy guns. Due to his rash and negligent driving, he knocked down and killed B. A suit was filed against the Government of India by B's widow. The 7|Page Government pleaded that the driver was doing a duty in discharge of the Government's sovereign power. However, this plea was rejected. The Court observed that the transport for the machine could even have been arranged through a private carrier. The Government was, therefore, held liable for the tortuous act of A. (Union of India v. Sugrabai, 70 B. L. R. 212) The Madhya Pradesh High Court has held that the powers of the State Police to regulate processions and to quell riots are sovereign functions. Hence, when regulating a procession, if the Police make a lathi-charge which the Respondent's property is damaged, the State Government would not be liable. (State of M.P. v. Chironjit Lal. A.I.R. 1981 M.P. 65) The Allahabad High Court has observed that the onus of establishing that a particular act was committed in the course of an employment which is referable to the exercise of sovereign power is upon the State. (State v. Hindustan Lever Ltd., A.I.R. 1972 All. 486) The Supreme Court of India, in State of Bihar v. Abdul Majid (1954 S. C. R. 786), held that the English rule that a civil servant cannot maintain a suit against the State for recovering his arrears of salary, is not applicable in India. In one case decided by the Madras High Court, X took his newly born infant to a Government hospital for treatment. A few days later, the nurse in charge of the children's ward informed X that the child was fine, and that it should be taken away. However, she advised X to buy a rubber apparatus for the child before taking it away. X went to buy the apparatus, and on returning to the hospital, was shocked to see that someone had already come and taken the child away. X made frantic efforts but was unable to find the child. In a suit by X against the Government for the negligence of the hospital authorities, the Court held that the Government was not liable for the torts of the hospital employees because in running the hospital, the Government was merely discharging a governmental function and was not engaged in any commercial business. (Etti v. Sec. of State of India (1939) Mad. 843) The courts in USA have, however, taken a different view. In one American case, the plaintiff was admitted to a State Hospital in a pregnant condition. Later, she gave birth to a baby, who began to lose blood. Although the baby's blood was “A-Negative”, it was negligently administered "B-Positive” blood, resulting in the baby's death. The plaintiff alleged that the negligence of the doctors could be imputed to the hospital, which denied all liability in the matter on the ground of government immunity. The Supreme Court of North Carolina held that the operation of a public hospital is not one of the “traditional services" rendered by local governmental units in the U.S.A. Hence, such hospitals, like other corporate employers, are liable in tort for the negligent acts of their employees committed within the course and scope of their employment. (Sides v. Cabarrus Memorial Hospital Inc., 287 N.C. 14) In another case, some military jawans in the employment of the Union of India lifted some drift wood belonging to the plaintiff and carried it away in army vehicles for the purpose of their camp-fire, presumably under a belief that the wood did not belong to anyone. The Court held that the action of the jawans was in the course of employment, and therefore, the Union of India was liable to make good the loss to the plaintiff. 8|Page  The Allahabad High Court has held that where an accident occurred due to the negligent driving by a sepoy of a Government truck when he was going with the truck for imparting training in motor driving to new recruits, the driver, as well as the Union of India, would be liable in damages. Such an act cannot be said to be an act in the exercise of the sovereign power of the Government. (Smt. Iqbal Kaur v. Chief of Army Staff, AIR 1978 All. 417) An interesting exposition of the law on this subject is contained in a case decided by the High Court of Jammu and Kashmir, where jawans were transported in an army vehicle and the negligence of the driver resulted in an accident with a private tempo. The occupant of the tempo was injured and he filed a suit for damages against the Government. The Court rejected the Government's contention that the act was performed in the exercise of delegated sovereign powers. It held that, even if it is conceded that the driver of the truck was driving the vehicle to the Railway Station to bring the jawans to the headquarters, it could not be said that the statutory duty which he was performing was referable to the exercise of sovereign powers. Here, the jawans could have been transported to the headquarters in a private bus or a truck or in any vehicle whatsoever. The act of so transporting the jawans could be said to be done in exercise of sovereign powers only if it could be shown that such an act could not have been performed by private individuals. It was, therefore, held that the State was liable for damages arising out of the negligence of the driver. (Union of India v. Miss Savita Sharma) A. I. R. 1979 J & K. 6. In one case, the Government was vicariously held liable to compensate the heirs of the deceased, where a Government servant was travelling in a Government jeep with his father and other family members, and the government servant and his father died in the accident. The father's heirs were also held entitled to claim damages. although the father was an unauthorised occupant in the jeep. (State of Orissa v. M. Ray, A. I. R. 1981 NOC 223) In State of Gujarat v. Memom Md., certain goods seized under the Sea Customs Act were not properly kept and were disposed of by order of a Magistrate. On a suit filed for the value of the goods against the State, the Supreme Court held that when the seizure was illegal, there arose a bailment and a statutory obligation to return the goods. The suit was therefore maintainable. Similarly, in Smt. Basava Kom Dyamogonda Patil v. State of Mysore, certain articles seized by the police were produced before a Magistrate who directed the Sub-Inspector to keep them with him in safe custody to get them verified and valued by the goldsmith. The articles were lost while they were kept in the police guard-room. In a proceeding taken under the Code of Criminal Procedure, the Supreme Court held that "there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property." The Court ordered the State to pay to pay the value of the property to the owner. The court also observed: "As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases." In State of Andhra Pradesh v. Challa Ramakrishna Reddy, a prisoner in jail as an under-trial died as a bomb was thrown by some miscreants in the cell where he was lodged. 9|Page In a suit by the defendants of the deceased against the state, it was found that the jail authorities were negligent in not properly guarding the jail in spite of warnings that some miscreants were likely to make an attempt on the life of the prisoner. On these facts, the doctrine of sovereign immunity was held to have no application, as this was a case of a violation of fundamental rights under Article 21. It made no difference that the claim was made through a suit and not under Article 32 or Art. 226. [Note. - The Law Commission has recommended changes in the law which would remove some of the restrictions of the liability of the Government as an employer. These recommendations have, however, not been implemented.] 2. Foreign sovereigns Foreign sovereigns cannot be sued unless they themselves submit to the jurisdiction of the local Court and waive the privilege. Even by residing in a foreign country, a sovereign does not waive his privilege or submit to the jurisdiction of the local Courts. This rule extends to all acts of the foreign sovereign, including those done in his private capacity. The only remedy that is available against a foreign sovereign would be action at a governmental or diplomatic level. Under S. 87B of the Civil Procedure Code, foreign sovereigns can be sued in Indian Courts only with the previous consent of the Central Government. 3. Ambassadors Foreign ambassadors, their families and servants also cannot be sued, unless they waive their privilege by submitting to the jurisdiction of the Court. An ambassador cannot be sued during his term of office. Thus, the right to sue him in tort is not non-existent; it is merely suspended as long as he holds the office. Of course, it is open to such a person to waive his privilege, but this may not be inferred unless he actually appears in Court and thus submits to its jurisdiction. 4. Public Officials No action lies against public officials in their official capacity in respect of torts committed by them - for they are representatives of the Crown. But public officials are liable in damages for tortuous acts committed by them in their private capacity. The command or authority of Crown is no defence to the ordinary liability for one's own acts. Thus, if an act is done by an officer of the Government and such act is found to be done under lawful sovereign power, no action will lie against the Government on the principle of respondeat superior. Let the superior be responsible. However, it must be noted that if the act is unlawful in itself, the order of the superior is no defence. The principle of respondeat superior is not applicable to such unlawful acts. 10 | P a g e It is a fundamental principle of English law that every public officer acts on his own responsibility. If his act is unlawful, the order of the superior does not protect him. The Madhya Pradesh High Court has held that a suit for damages can be filed against the Union of India for torts committed by its servants in connection with an undertaking if the act in question was not done in exercise of its sovereign powers. (Union of India v. Bhagwati Prasad, A. I. R. 1957 M.P. 43) Public officials are not personally liable for the wrongs of their subordinates, unless expressly authorised or ratified by them, because the subordinates are not their servants. They are both servants of the Government, and there is no relationship of master and servant between the superior officer and his inferior. 5. Infants (Minors) The general rule as to liability of minors for their torts is that ordinarily, infancy per se is no defence to an action for tort. Infants are liable for wrongs of omission as well as for wrongs of commission. Thus, minors have been held liable for assault, false imprisonment, libel, slander, seduction, trespass, wrongful detention of goods, fraud, embezzling money, and for nuisances and injuries to their neighbours arising from the negligent use and management of their property, In other words, a minor is, in general, liable for his torts in the same manner and to the same extent as an adult. But where intention, knowledge, malice or some other condition of the mind of the wrong-doer forms an essential ingredient of liability (as for instance, deceit), extreme youth is a good defence. If, however, there is a sufficient maturity of understanding in an infant, he will be liable. On the same principle, before a child is made liable for negligence, it must be proved that he failed to show the amount of care which can reasonably be expected from a child of that age. Thus, in a Canadian case, Walmsey v. Humonick (1954 2 D. L. R. 232), two little boys, both aged about five, were playing "cowboys and Indians". One of them was hurt in the eye by an arrow from the other boy's bow. The Court held in favour of the defendant, observing that he had not aimed at the plaintiff - and that even though it might amount to negligence if adults were similarly involved - the defendant could not be held to be liable. Cases where the child's act amounts to tort and a breach of contract It is, however, possible that the act of an infant may amount either to a tort or a breach of contract. In such cases, the law will not permit a suit based on a contract to be converted into a suit under the law of torts, nor permit an infant to be used for tort, if such an action is only an indirect way of enforcing a contract on which he is not otherwise liable. In other words, an action against an infant will not lie if it is nominally in tort, but in substance, in contract. Hence, a minor cannot be sued for a tort which is so connected with his contract as to be part of the same transaction. In other words, "You cannot convert a contract into a tort to enable you to sue an infant." 11 | P a g e Jenning V. Rundall, (1799) S. T. R. 335. An infant hired a mare. He killed it by overriding it, and an action was filed in tort. The Court held that it was, in essence, an action for a breach of contract, and that it could not be converted into an action in tort merely to fasten a liability upon the infant. As Lord Kenyon observed, if it were in the power of a plaintiff to convert that which arises out of a contract into a tort, there would be an end of that protection which the law affords to infants. But if the tort is independent of a contract and not contemplated by the contract, the infant will be liable, as in the following case. Burnard V. Haggis, (1893) 14 C. B. N. 45. An infant hired a mare for riding. He was expressly told that the mare was not fit for jumping. But the infant gave the mare to a friend for jumping over fences, and the mare was killed while trying to clear a fence. The Court held that there was a tort wholly independent of the contract for which the infant would be answerable. The act of the infant was not within the object and purpose of hiring. Likewise, an action for deceit will not lie against an infant where he has procured a contract by means of fraudulent representations either as to his age or to any matter. If an action in tort for deceit were to be allowed, it would defeat the rule against suing a minor in contract. No action, therefore, lies for the tort of deceit where an infant, by a false representation that he is of full age, procures a loan. If, however, the infant obtains property through fraud, and the property is still in his possession, he is liable to restore that property to the other party, the principle being that an infant will not be allowed to take advantage of his own fraud. A, a minor, falsely representing himself to be a major, hires a motor-car at a daily charge of Rs. 500. He fails to pay the hire charges amounting to Rs. 1,500, and also by his negligent driving, causes damages to the extent of Rs. 2,000. The minor is sued for the recovery of Rs. 1,500 and Rs. 2,000. Now, a minor is not liable in contract, and, therefore, A cannot be made to pay the hire charges. But, as regards a minor's liability in tort, different considerations come in. As a rule, he is liable for his torts, except in few cases, as for instance, where the action is nominally in tort but is in substance in contract, or where the tort is founded on contract. In the case of hire, reasonable care of the goods is an implied term of the contract. Damage due to negligent driving is a breach of this term. So damage to the car, though a tort in this case, cannot be said to be independent of contract. Therefore, A is not liable also for the damage to the car. Liability of parent for child's tort As a rule, a father, as such, is not liable for the torts of his children, even while they are under-age and living with him. However, a father may be liable for the acts of his child in the following circumstances: (1) When the child is acting as the servant of the father, the father's liability will be the same as that of any other employer. Thus, for instance, if the son is driving the car of the father, the son's negligence will make the father liable. (2) A father may be liable for his own personal negligence in affording or allowing his child an opportunity of doing a mischief. Thus, when a father negligently left his 12-year old son with a rifle, without giving him proper instructions for handling it, the father was held liable. (Newton v. Edgerley, (1959) I W. L. R. 103) 12 | P a g e 6. Lunatics and drunkards Ordinarily, lunacy is no answer to an action in tort. But a lunatic will not be liable for those torts in which some mental condition forms an essential ingredient. A person who is sane enough to be accountable under the criminal law would probably also be liable for any kind of tort. Akin to lunacy is drunkenness. Drunkenness is no excuse for the commission of a crime; it will hardly therefore, excuse a tort. It is otherwise (as it is in the case of criminal law) if the intoxicant is administered against his will or by fraud or mistake. The rule as to drunkenness applies also to acts of an epileptic person. 7. Corporations A corporation or a company cannot be sued, unless (i) the act done was within the scope of the agent employed by it, and (ii) the act done was within the purpose of the incorporation. The same principles which govern the vicarious liability of a principal for the torts of his agents or of a master for the torts of his servants, govern the liability of a corporation for the torts of its agents and officials. A corporation can be sued for torts like defamation, deceit and malicious prosecution. When the suit is against the corporation for any of these torts, the plaintiff, in addition to the necessary ingredients, must prove that the servant or agent was acting in the course of the employment, and the act complained of was done by him for the benefit of the corporation and within the scope of his authority. If the act is ultra vires, the corporation will not be liable. A corporation is liable for torts committed by its agents or servants to the same extent as a principal is liable for the torts of his agent or an employer for the torts of his servant, provided that the tort is committed in the course of doing an act which is within the scope of the powers of the corporation. It may thus be liable for assault, false imprisonment, trespass, conversion, libel or negligence. A corporation, however, will not be liable if the act of its servant is not authorised by the Articles of its incorporation. The leading case on the subject is Poulton v. London and S. W. Rly. Company (1867 L. R. 2 Q. B. 534 ). In that case, a station-master in the employment of the defendant railway company, arrested the plaintiff for refusing to pay the freight for a horse that had been carried on the defendant's railway. The railway company had authority under an Act of Parliament to arrest a person who did not pay his fare, but none to arrest a person for non- payment for the carriage of goods. It was held that the railway company was not liable. The company itself having no power to arrest for such non-payment, it could not give the station- master any power to do so. The plaintiff's remedy for the illegal arrest in such a case would be against the station-master only. It was thought, at one time, that a corporation could not be held liable for wrongs involving malice or fraud, on the ground that to support an action for such a wrong, it must be shown that the wrongdoer was actuated by a motive in his mind, and that "a corporation 13 | P a g e has no mind". But it is now settled that a corporation is liable for wrongs even of malice and fraud. A corporation, therefore, may be sued for malicious prosecution or for deceit. In this connection, it may be noted that, in India, an idol of a Hindu temple stands in the same position as a corporation. So also does a mosque. They are recognised as juristic persons capable of owning property. An idol can, therefore, be sued in respect of a tort committed by its shebait, manager or trustee. 8.Trade Unions English law In Taff Vale Rly. Company. V. Amalgamated Society, (1901) A. C. 406, the House of Lords held that a trade union could be sued in its registered name. To nullify the effect of this ruling, the Trade Disputes Act, 1906, was passed, which provided that no suit could lie against a trade union or its members for torts committed by them on behalf of the union. This rule was subsequently modified in 1927, and a trade union was held liable for promoting a general strike. Indian law The position in India is similar in that the Indian Trade Union Act, 1926, on the analogy of the English Act, provides that a registered trade union cannot be sued, or its funds proceeded against, in respect of any act done by its officers in contemplation or furtherance of a trade dispute. A subsequent enactment of 1939 has made provision for the creation of Conciliation Boards of settlement of trade disputes on the lines of the English Act. Thus, under the Indian Trade Unions Act, a trade union can be sued in its registered name. A registered trade union and its officers and members are exempt from liability for certain torts only. 9. Married women English law Under the English law of torts prior to 1935, a married woman could sue and be sued, but her husband had to be joined with her, as under the former English procedural law, she had no separate existence apart from him. However this was subject to the following three qualifications: (i) A married woman was not liable beyond her separate property. (This lacuna was removed by the Law Reform. (Married Woman and Tortfeasors) Act, 1935. (ii) Actions in tort between the husband and wife were not possible under common law. Under the Married Women's Property Act, 1882, she was given limited right to sue her husband in tort "for the protection and security of her property." However, the rule that spouses could not generally sue each other in tort was 14 | P a g e  abolished in 1962. Today, both husband and wife have the same right of action in tort against each other, as if they were not married. (iii) At common law, a husband was liable for his wife's torts. However, this scandalous rule was abolished in 1935, and today a husband is not liable for the torts of his wife. Of course, if he has participated in such a tort, he would be liable as a joint tort-feasor. From what is stated above, it will be seen that today, under English Law, a married woman is exactly in the same position as any unmarried woman and can sue and be sued under the law of torts. Indian Law In India, a husband is not liable for the torts of his wife. Under the Married Women's Property Act, 1874, a married woman (not being a Hindu, Mohamedan, Buddhist, Jain or Sikh) may sue and be sued in her own name. 15 | P a g e 1.5 Justification of Tort (Defences) There are fifteen general defences which are available in a suit under the law of torts. They constitute what may be called "justifications" or "grounds of immunity" from liability to an action in tort. They are classes of wrongs which stand outside the sphere of tort. There are, as it were, the various conditions which will prevent an act from being wrongful, which in their absence, would be an actionable tort. They are, what Sir Fredrick Pollock calls, "the rules of immunity which limit the rules of liability". In other words, there are various conditions which will prevent an act from being wrongful which, in their absence, would be a wrong. Under such conditions, the act is said to be justified or excused. And when an act is said in general terms to be wrongful, it is assumed that no such qualifying condition exists. These justifications from civil liability for acts which are prima facie wrongful are based principally upon grounds of public policy. The general defences discussed in this Chapter should not be confused with particular defences available for particular torts. Thus, for instance, absolute or qualified privilege would be a good defence in a suit for defamation. Likewise, contributory negligence of the plaintiff may be pleaded by the defendant when he is sued for the tort of negligence. However, such defences are not general defences available for all torts and are therefore discussed in the Chapter relating to that particular tort. The following are fifteen general justifications (or defences) in an action in tort: