Law of Torts - PDF

Law of Torts [For LL.B & Commerce Students of various Universities of India; Civil/Judicial Services Aspirants] Dr. ASHOK K. JAIN LL.M; Ph.D (Delhi) Ascent Publications 21 /29, Shakti Nagar, Delhi-110007  Copyright © 1997 - ASCENT PUBLICATIONS, Delhi....

Law of Torts [For LL.B & Commerce Students of various Universities of India; Civil/Judicial Services Aspirants] Dr. ASHOK K. JAIN LL.M; Ph.D (Delhi) Ascent Publications 21 /29, Shakti Nagar, Delhi-110007  Copyright © 1997 - ASCENT PUBLICATIONS, Delhi. First Edition, 1997 Second Edition, 1999 Reprints with Supplements 2004 & 2007 Third (Enlarged) Edition, 2008 Fourth Edition, 2010 Fifth Edition, 2012 Price Rs. 160.00 All Rights Reserved No part of this work may be copied, reproduced, adapted, abridged or translated, stored in any computer or transmitted in any form by any means without prior written permission of the publishers. Published By Ascent Publications, 21/29, Shakti Nagar, Delhi. Printed at G. S. Offset, Delhi.  CONTENTS CHAPTER 1. INTRODUCTION: DEFINITION NATURE AND SCOPE Evolution of Law of Torts in England and India 1 Purpose/Function of the Law of Torts 2 Remedies in Tort 4 Nature and Definition of Tort 4 Analysis of Winfield’s Definition 6 Foundation of Tortious Liability: Law of Tort or Law of Torts? 8 Comparison of Tort with Other Branches of Law 11 Discharge of Tort 17 Waiver of Tort 17 Disability to Sue and To be Sued in India 17 General Conditions of Liability for a Tort 18 Injuria sine damnum 19, 31 Damnum sine injuria 22, 31 Contractual and Tortious Liability 27 Mental element in Tortious Liability (Malice) 33 CHAPTER 2. DEFENCES AGAINST TORTIOUS LIABILITY Volenti Non Fit Injuria (Defence of Consent) 40, 63, 66 Limitations / Exceptions to the Maxim 47, 67 Rescue Cases 48 Plaintiff the Wrongdoer 51 Inevitable Accident 51 Act of God - vis Major 53 Pivate Defence 55 Mistake 57 Necessity 57 Statutory Authority 58 Acts causing Slight Harm 61 CHAPTER 3. NEGLIGENCE Theories of Negligence 69 Meaning and Definition of Negligence 71 Essentials of Negligence 73 Res Ipsa Loquitur (Proof of Negligence) 86, 113 Defences to Negligence 94 Professional Liability for Negligence 96 Page iv Law of Torts CHAPTER 4. NERVOUS SHOCK Nervous Shock: Reasonably Foreseeable Consequence of Negligence 116 Illustrations/Cases 118 CHAPTER 5. REMOTENESS OF DAMAGE Remoteness: A Limitation to an Action for Negligence 133 Tests of Remoteness of Damage 135 Intended Consequences 143 When the Damages Excluded as Too Remote 144 Chapter 6. No Fault Liability: Strict and Absolute Liability Strict Liability 150 Rule in Rylands v Fletcher 151 Applicability of Rylands Rule in India 158 Rule of Absolute Liability (Rule in M.C. Mehta Case) 164 Public Liability Insurance Act, 1991 169 National Environment Tribunal Act, 1995 171 Comparison of Rylands Rule with M.C. Mehta's Rule 174 CHAPTER 7. VICARIOUS LIABILITY INCLUDING STATE LIABILITY Liability Arising Out of a Special Relationship 178 Principles on which the Vicarious Liability is Based 180 Respondeat Superior 180 Qui facit per alium facit per se 181 Who is a Servant? 182 The Course of Employment 185 Vicarious Liability of the State 193, 206 Doctrine of Sovereign Immunity 194 Vicarious Liability: Plea for Review 197 Law Commission of India, First Report, 1956 204 Torts Committed in Exercise of Statutory Duties 211 CHAPTER 8. DEFAMATION Libel and Slander 216 Essentials of Defamation (Libel) 219, 239 The Innuendo 221, 241 Defences to Defamation 229 Justification or Truth 229 Fair Comment 230 Privilege 231 Burden of Proof 236 Remedies for Defamation 237 Apology 238 Page v Law of Torts CHAPTER 9. NUISANCE Kinds of Nuisance 250 Public Nuisance 250 Private Nuisance (Tort of Nuisance) 251 Damages in Nuisance 253 Defences to Nuisance 254 Abatement of Nuisance 255 CHAPTER 10. CONTRIBUTORY AND COMPOSITE NEGLIGENCE Contributory Negligence 260 The Last Opportunity Rule 267 Theories of Contributory Negligence 270 Composite Negligence 272 Distinction between Composite and Contributory Negligence 274 Joint Tortfeasors 275 CHAPTER 11. TRESPASS TO PERSON AND PROPERTY Trespass to Person 280 Battery 281 Assault 282 False Imprisonment 284 Remedies: Trespass to Person 289 Trespass to Land 290 Defences to Trespass 295 Remedies for Trespass to Land 295 Trespass to Goods 296 Detinue 296 Conversion 298 Distinction between Trespass and Conversion 302 Distinction between Detinue and Conversion 302 CHAPTER 12. MALICIOUS PROSECUTION AND CONSPIRACY Malicious Prosecution 304 Distinction between False Imprisonment and Malicious Prosecution 311 Conspiracy 312 CHAPTER 13. OCCUPIER'S LIABILITY FOR DANGEROUS PREMISES Obligation towards Lawful Visitors 317 Structures adjoining Highways 321 Obligation towards Trespassers 322 Obligation towards Children 324 Page vi Law of Torts CHAPTER 14. REMEDIES IN TORTS Judicial Remedies: Damages 326 Measure of Damages (Restitutio in integram) 326 Kinds of Damages 328 Prospective and Continuing Damages 330 General and Special Damages 331 Damages for Personal Injury 332 When Damages are Irrecoverable 334 Injunctions 335 Specific Restitution of Property 335 Extra-Judicial Remedies 335 Page vii TABLE OF CASES A A.H. Khodwa v State of Maharashtra 200 A.L. Ranjane v Ravindra Ishwardas Sethna 252 Abdul Majid v Harbans Chaube 310 Abrath v North Eastern Ry. Case 307, 308 Acton v Blundell 24 Adam v Ward 233 Adams v Ursell 259 Agya Kaur v Pepsu R.T.C. 88, 263 ALCOCK v CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE 118, 126, 128, 129 Allen v Bloomsbury Health Authority 149 Allen v Flood 9, 34 Amina Begam v Ram Prakash 90 Amthiben v S.G., ONGC 274 Anandi Lal v Fateh Ali 299 Anwar Hussain v Ajoy Kumar 288 Armory v Delamirie 301 Arthur J.S. Hall & Co. v Simons 96 ASHBY v WHITE 10, 20, 26, 32, 331 Ashton v Jennings 282 Assam State Coop. Ltd. v Smt. Anubha Sinha 53 Attia v British Gas Plc. 118 Austin v Dowling 311 Austin v Great Western Rly. 78 Ayer v Craven 218 B Baker v T.E. Hopkins & Son 50, 65 Balak Glass Emporium v United India Ins. Co. Ltd. 36 Balakrishnan v Subramanian 89 Balbhaddar v Badri Sah 305 Ball v Ray 253 Banshi v Goverdhan 297 Baoler v Holder 310 Barnett v Packer & Co. 77 Page viii Law of Torts Barwick v English Joint Stock Bank 186 Basely v Clarkson 291 Bavisetti Venkata Surya Roa v Nandipati Muttayya 283 Baxi Amrik Singh v Union of India 207 Baxter v Taylor 291 Bayley v Manchester S. & L. Railway 192 Beard v London General Omnibus Co. 189 Bellamy v Wells 253 Bernina Mills v Armstrong 266 Berry v B.T.C. 310 Bhagwat Swarup v Himalaya Gas Co. 262 Bhaiyalal v Rajrani 192 Bharat Commerce & Industries v Surendra Nath 309 Bhim Singh v State of J&K 21, 213, 214, 329 Bhogi Lal v The Municipality of Ahmedabad 61 Bhopal Gas Leak Case 167 Bird v Holbrooke 51, 56, 323 Bird v Jones 285 Blyth v Birmingham waterworks Co. 72, 81, 108 Bolam v Friern Hospital Management Committee 97, 102 Bolton v Stone 81, 111 Boulton v Hardy 5 BOURHILL (OR HAY) v YOUNG 108, 117, 120, 128 Bowater v Rowley Regis Corpn. 43, 44, 63, 66 Box v Jubb 156 Boxsius v Golbert 235 Boy Andrews v St. Roguvald 272 Bradford Corporation (Mayor of) v Pickles 25, 34 Bradon v Osborne (“Skylight case”) 48, 265 Braj Sunder Deb v Bamder Das 309 Brinkly v Farmers Elevator Mutual Insurance Co. 181 British Columbia Electric Co. v Loach 268 British Railway Board v Herrington 323, 324 Brook v Bool 275 Brown v Kendall 52 Buckpitt v Oates 46 Burgess v Grey 183 Butterfield v Forrester 261, 267 Byrne v Boadle 89 Page ix Law of Torts c Cambridge Water Co. Ltd. v Eastern Countries Leather Plc. 149 Campbell v Padigngton Corpn. 13, 251 Capital and Counties Bank v Henty & Sons 221 Carmarthenshire County Council v Lewis 84 Carstairs v Taylor 157 Cassidy v Daily Mirror Newspapers Ltd. 223 Caswell v Powell D. Collieries 272 Cates v Mongini Bros. 80, 108, 318 Cattle v Stockton Waterworks Co. 334 Cayzer Irvine & Co. v Carran Co 271 Century Insurance Co. Ltd. v Northern Ireland 188 Chadwick v British Transport Corpn. 118, 129, 131 CHAIRMAN, RAILWAY BOARD v CHANDRIMA DAS 202 Chapman v Honig 34 Chapman v Pickers 7 Cheater v Cater 153, 173 Cherubin Gregory v State of Bihar 56, 323 Cheshire v Bailey 188 Chesmore v Richards 23 Chhaganlal v Thana Municipality 311 Christman 320 Church of Scientology v Johnson Smith 230, 232 Cleghorn v Oldham 41 Cole v Turner 281 Com. Dig. Action Trover E. 298 Common Cause, A Registered Society v UOI 198 Consolidate Company v Curtis & Son 57 Conway v George Wimpey & Co. Ltd. 191 Copps v Miller 263 Corea v Peiris 307 Corrosan v Corcoran 222 Coward v Baddeley 62,282 Cowell v Rosehill Race Course Co. 293 Crofter Hand Woven Harris Tweed Co. Ltd. v Veitch 314 Crook v Derbyshire Stone Ltd. 190 Cutler v United Dairies (London) Ltd. 44, 50 Page X Law of Torts D D. P. Chowdhery v Km. Manjulata 224, 240 Dann v Hamilton 45 Darshan Ram v Nazar Ram 158 Darshani Devi v Sheo Ram 267 Davies v Liverpool Corpn. 79 Davies v Mann 261, 267, 271 Davies v Swan Motor Co. Ltd. 270 Davies v Vernon 301 Davis v Shipston 247 Deatons Proprietary Ltd. v Flew 189 Debendra Bhoi v Meghu Bhoi 55 Devereaux v Barclay 300 Devinder Singh v Mangal Singh 183 Dhadphale v Gurav 25 Dhanna Lal v Thakur Chittar Singh 255, 258 Dharni Dhar v Chandra Shekhar 279 Dhian Singh v Union of India 303 Dhirendra Nath Sen v Rajat Kanti Bhadra 226 Dickson v Reuter's Telegram Co. 24, 28 Dinbai R. Wadia v Farukh Mobendjina 178 Dixon v Holden 215 Dollman v Hillman Ltd. 250 DONOGHUE v STEVENSON (”SNAILIN THE BOTTLE CASE") 10, 28, 29, 75, 77, 109, 323 Dooley v Cammell Laird & Co. 118 DOUGHTY v TURNER MFTG. CO. LTD. 142 Dr. Lakshman Balkrishna Joshi v Dr. Trimbak Bapu Godbole 97 Dr. M. Mayi Gowda v State 82 Dr. Ram Raj Singh v Babulal 251 Dr. T.T. Thomas v Elisa 98 Dulieu v White and Sons 118, 120 Durga Prasad v State 249 E E. I. Ltd v Klaus Mittelbachert 169 Eastern & South African Telephone Co. v Cape Town Tramways 256 Eastwood v Homes 225 Elias v Pasmore 292 Ellis v Loftus Iron Co. 290 Page xi Law of Torts F Fairman v Perpetual Investment Building Society 318, 319 Fardon v Harcourt 81, 108, 111 Farrugia v Grant Western Railway 80 Fateh Singh v State of U.P, 334 Fetter v Beale 330 Firth v Bowling Iron Co. 154 Foster v Gilingham Corporation 85 Fouldes v Willonghby 299, 302 Fowler v Lanning 280, 291 Froom v Butcher 263 G Gangaram v Kamlabai 114 Garbett v Hayell 225 Garikipati v Araza Biksham 287 Gas Light Coke v Vestry of St. Mary Abbots, Kensington 59 Gaya Prasad v Bhagat Singh 306 Gaya v Mahabir 219 Gee v Metropolitan Rly. Co. 265 Gifford v Dent 294 Giles v Walker 172, 153, 173 Gill v General Iron Screw Colliery Co. 71 Glasgow Corpn. v Muir 81, 79, 108, 325 Glasgow Corporation v Taylor 85 Glinski v McIyer 309 Gloucester Grammar School Case 23 Glover v London & S.W. Rly. 144 Gobald Motor Services v Veluswami 89 Grant v Australian Knitting Mills Ltd. 30, 77, 109 Green v Chelsea Water Works Co. 157 Greene v Chelesea Borough Council 320 Greenland v Chaplin 135 Greenock Corpn. v Caledonian Railway 156 Gregory v Duke of Brunswick 314 Guest v Warren 331 Gulf Oil (GB) Ltd. v Page 313 Guru Govekar v Filomena F. Lobo 183 Page xii Law of Torts H H.C.D. Silva v E.M. Potenger 218 Hadley v Baxendale 15 Hall v Brooklands Auto Racing Club 41, 63 Halligua v Mohansundaram 123 HAMBROOK v STOKES BROS. 118, 119 Hammer Smith Rail Co. v Brand 59 Hardeo Kaur v Rajasthan State Road Transport Corpn. 332 Harihar Pershad v Bholi Pershad 277 Haryana Cotton Mills Co. Ltd. v B.B. & C.I.Rly. Co. 301 Hattangadi v M/s. Pest Control India Pvt. Ltd. 332 HAYNES v HARWOOD ("POLICE CONSTABLE’S CASE”) 49, 50, 65, 145 HEADMISTRESS, GOVT. GIRLS HIGH SCHOOL v MAHALAXMI 201 Heath v Mayor of Brighton 256 Heaven v Pender 73, 75, 78, 107 Hegarty v Shine 26 Hemmings v Stoke Poges Golf Club 295 Herd v Weardale Steel, Coal & Coke Co. Ltd. 288 Herniman v Smith 310 Herring v Boyle 286 Hevican v Ruane 125 Hewitt v Bonvin 179 Hicks v Faulker 307, 309 Hilder v Associated Portland Cement Mftrs. Ltd. 322 Hill v Chief Constable, West Yorkshire 83, 112 Hirabai v Dinshaw 219 Hoare & Co. v McAlpine 176 Holford v Bailey 62 Hollins v Fowler 300 Holmes v Mather 52, 291 Holmes v Wilson 295 Home Office v Dorset Yacht Co. Ltd. 77 Horrocks v Lawe 236 Huckle v Money 327 HUGHES v LORD ADVOCATE 140, 147 Hulton & Co. v Jones 224, 239 Huntley v Thornton 314 Hurst v Picture Theatres Ltd. 281, 293 Huth v Huth 227 Hyett v Great Western Railway 50 Page xiii Law of Torts I IIot v Wilkes 56 Imperial Chemical Industries v Shatwell 43, 67, 182 Indian Council for Enviro Legal Action v UOI 167 Indian Insurance Co. Assn. Pool v Radhabai 207 Indian Medical Asscn. v V.P. Shantha 100 Innes v Wylie 281 Insurance Commissioner v Joyce 46 Iqbal Kaur v Chief of Army Staff 208 Ishwar Devi v Union of India 109 J JACOB MATHEW v STATE OF PUNJAB 73, 101 Janvier v Sweeney 119 Jayalakshmi Saltworks Pvt. Ltd. v State of Gujarat 2, 5, 11, 161 Jiwan Dass Roshan Lal v Karnail Singh 192 Jiwan Mai v Lachman Das 232 Joel v Morison 189 Joginder Kumar v State of U P. 287 John Lewis & Co. v Times 288 John v MGN Ltd. 329 Joliffe v Willmett & Co. 291 Jones v Boyce 264 Jones v Livox Quarries Ltd. 262 Joseph v Shew Bux 328 K K. Nagireddi v Govt. of Andhra Pradesh 160 Kallulal v Hemchand 54, 321 Kannu Rowther v Kerala State R.T.C. 115 Karnataka State R.T.C. v Krishnan 114, 273 KASTURI LAL RALIA RAM JAIN v STATE OF U.P. 196, 211 Kawanan Kea v Polyblank 194 Kerr v Kennedy 218 Kessojee Issur v G.I.P.Rly. 264 Khusro v N.A.Guzder 277 Kiddle v City Business Properties Ltd 157 KING v PHILLIPS 118, 122, 135 Kirk v Gregory 58,296 KLAUS MITTELBACHERT v EAST INDIA HOTELS LTD 168 Page xiv Law of Torts Kleinwort, Sons & Co. v Comptoir National D’ Escompte de Paris 300 Knupffer v London Express Newspaper Ltd. 226 Krishan Kaushik v Union of India 201 Kubach v Hollands 110 Kuldip Singh v Subhash Chander Jain 253 Kumari Alka v Union of India 324 Kusuma Begum (Smt.) v The New India Assurance Co. Ltd. 162 L Lado v U.P. Electricity Board 332 Lakshmichand K. Punja v Ratnabai 319 Latham v R. Johnson & Nephew Ltd. 324 Latimer v A.E.C. Ltd. 83 Leigh v Gladstone 282 Letang v Cooper 280, 291 LIESBOSCH DREDGER v EDISON 137, 138, 327 Likiw v Samuels 187 Limpus v London General Omnibus Co. 181, 191 lllot v Wilkes 47 Llyod v Grace, Smith & Co. 179, 187 Lonrho Plc. v Fayed 315, 316 Lowery v Walker 323 Lucknow Development Authority v M.K. Gupta 208 M M. & S.M. Railway Co Ltd. v Jayammal 266 M. Veerappa v Evelyn Squeria 96 M.C. Grown v Northern Ireland Housing Executive 321 M.C. MEHTA v UNION OF INDIA 9, 37, 150, 164 M.P. ELECTRICITY BOARD v SHAIL KUMAR 162 M.S.Chokkaligam v State of Karnataka 298 M/s. Dedha & Co. v M/s. Paulson Medical Stores 279 Madan Mohan Singh v Bhirgunath Singh 306 Madhav V. Kudwa v Madhavdas Vallabhdas 291 MADRAS RAILWAY CO. v ZAMINDAR OF CARVETNAGARAM 159, 160 Maharani of Nabha v Province of Madras 286 Mahender Ram v Harnandan Prasad 227 Makbool Ahmed v Bhura Lal 109 Manchester Corporation v Markland 85 MANINDRA NATH MUKHERJEE v MATHURADAS CHATTURBHUJ 55, 89, 113 Manju Bhatia v New Delhi Munic. Corpn. 28 Page xv Law of Torts March V.E. & M.H. Stramare Pty. Ltd. 270 Mariyan Jasub v Hematlal 192 Martin v Watson 307 Marzetti v Williams Bank 21 Mata Prasad v Union of India 80 McFarlane v Tayside Health Board 99 MCLOUGHLIN v O’ BRIAN 124, 129, 131 McPherson v Daniels 229 McQuire v Western Morning News Co. 230 Mee v Cruikshank 286 Melepurath Sankunni Ezhuthassan v Thekittil Geopalankutty Nair 237 Merring v Grahame White Aviation Co. 286 Merryweather v Nixan 278 Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) Ltd. 184 Metropolitan Asylum District v Hill 61 Mi Taw v Nga Ket 144 Middleweek v Chief Constable of the Merseyside Police 288 Mills v Brooker 298 Mint v Good 322 Mogul Steamship Co. v McGregor Gow & Co. 23, 31, 313 Mohd. Amin v Jogendra Kumar 304 Mohd. Murad v Govt. of U P. 211 Moorgate Mercantile Co. Ltd. v Finch 298 Morningstar v Fafayette Hotel Co. 21 Morris v Marsden 283 Morris v Nugent 56 Morrison v Richie & Co. 223 Moss v Christchurch R.D.C. 327 Motias Costa v Roque Augustinho Jacinto 266 Mourton v Poulter 324 Mrs. Lampert v Eastern National Omnibus Co. 147 Mrs. Read v J. Lyons and Co. 67,153 Mrs. Sydney Victor v Janab S. Kadar Sheriff 264 Mst. Ramdhara v Mst. Phulwatibai 220 Municipal Board of Agra v Asharfi Lal 20 MUNICIPAL CORPN., DELHI v SUBHAGWANTI (“CLOCKTOWER CASE") 91, 114, 321 Municipal Corpn., Delhi v Sushila Devi 94 Murphy v Steeplechase Amusement Co 41 Murray v Harringay Arena Ltd. 41 Murray v Minister of Defence 286 Page xvi Law of Torts N N. Achuthan v The Deshabhimani Printing & Publishing House 229 N. NAGENDRA RAO & CO. v STATE OF A.P. 198, 213 N. Narayana Bhattathrippad v Travancore Govt. 160, 175 Nagendra Nath Ray v Basanta Das Bairagya 305 Nagendra Rao v State of A. P. 210 Nalini Sen Gupta v Corporation of Calcutta 190 Nandram Heeralal v UOI 207 National Ins. Co. v Kastoori Devi 263 Nemi Chand v Khemraj 228 Nettleship v Weston 46 Newstead v London Express Newspaper Ltd. 239 Nichols v Marsland 54, 156 Nitin Walia v Union of India 84 Nitro-Glycerine Case 52 Nobin Chunder Dey v Secy, of State, India, 194 Noble v Harrison 154, 253, 257, 321 Northwestern Utilities v London Guarantee & Accident Co 156 Norwich Pharmacal Co. v Customs & Excise Commrs. 277 O O’Connel v Jackson 263 O’Gorman v O’Gorman 173 Oliver v Birmingham & Midland Omnibus Co. 267 Oriental F.& G. Ins.Co. v Manjir Kaur269 Ormrod v Crosvilie Motor Services Ltd. 179 OVERSEAS TANKSHIP (U.K.) LTD. v MORTS DOCK & ENGG CO. LTD. (WAGONMOUNDCASE) 138 Ownes v Liverpool Corpn. 120 P P. & O. Steam Navigation Co. v Secretary of State, India 194, 207 P. Gangadharan Pillai v State of Kerala 201 P. Kader v K.A. Alagarswami 282 P. Pearl (Exporters) Ltd. v Camden London Borough Council 82 P. Seetharamayya v Mahalakshmma 24 P.V. Rao v Khushaldas 195 Padmavati v Dugganaika 42 PAGE v SMITH 126, 128, 129 Palsgraf v Long Island Railroad Co. 82 Page xvii Law of Torts Pandit Gaya Prashad Tewari v Sardar Bhagat Singh 306 Pannalal v Shri Krishna 306 Parker v British Airways Board 301 Patterson v Royal Oak Hotel Ltd. 139 Pearson v Coleman Bros. 323 people’s Union for Democratic Rights v Police Commr., Delhi 213 pepsu R.T.C. v Qimat Rai Jain 264 Perera v Vandiyar 291 Periya Goundan v Kuppa Goundan 306 Phillips India Ltd. v Kunju Punnuv 97, 98 Phipps v Rochester Corpn. 325 Pigney v Pointers Transport Services Ltd. 145 PINNAMANENI NARASIMHA RAO v GUNDAVARAPU JAYAPRAKASU 100 Ponting v Noakes 155, 173 Poultion v London & S. West Rly 192 Premwati v State 192 Pushpa Thakur v UOI 207, 209, 210 Pushpabai Purshottam Udeshi v Ranjit Ginning & Pressing Co 186 Q Quebec Railway, Light Heat & Power Co. Ltd. v Vandry & Others 163 Quinn v Leathern 34, 314 R R. S. R. T. C. v K. N. Kothari 185 R. v Clearance 42 R. v Donovan 47 R. v S. George 282 R. v Williams 42 Radhey Shyam v Gur Prasad 252, 259 Radheyshyam Tiwari v Eknath 229, 244 Radley v L.& N. W.Rly. 268 Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum 1, 3, 28, 72, 73, 75, 93, 322 Ram Bihari Lal v Dr. J.N Shrivastava 98 Ram Ghulam v State of U.P. 60, 211 Ram Pyare Lal v Om Prakash 284 Ramalinga Nadar v Narayyana Reddiar 54 Raman Services Pvt. Ltd. v Subhash Kapoor 97 RAMCHANDRARAM NARGAM RICE MILLS LTD. v MUNICIPAL COMMR. 60 Ramdeo v Birdichand Sumermal 307 Ramnath v Kalanath 158 Page xviii Law of Torts Ratcliffe v Evans 331 Ravenscroft v Rederiaktiebolaget Transatlantic 125 Re Francis Mezzora 223 RE POLEMIS AND FURNESS, WITHY & CO. 15, 136 Revill v Naubery 324 Reynolds v Times Newspaper Ltd. 235 Richards v Lothian 156 Richardson v Atkinson 298 Ricketts v Thomas Tilling Ltd 190 Rigby v Hewitt 135 Robert Addie & Sons v Dumbreck 323 Roberts v Shanks 188 Robinson v Balmain New Ferry Co. Ltd. 288 Robinson v Kilvert 256 Robinson v The Post Office 141 Roe v Minister of Health 88 Rogers v Rajendra Dutt 19 Rohtas Industries Ltd. v Rohtas Industries Staff Union 315, 316 Roles v Nathan 320 Rookes v Barnard 9, 329 Roop Lal v Union of India 208, 299 Rouse v Gravel Works Ltd. 24 Rudal Shah v State of Bihar 213, 214, 288 Rup Ram v The Punjab State 207 Rural Transport Service v Bezlum Bibi 79, 96, 260 RUSTOM K. KARANJIA v K.M.D. THACKERSEY 234, 243 Rylands v Fletcher 5, 53, 87, 149, 150-153, 155, 158, 159, 164, 172 s S. Chettiar v Sri Ramkumar Ginning Firm 252 S. Dhanaveni v State of Tamil Nadu 85 S. Vendantacharya v Highways Dept, of South Arcot, 156 S.C.M. (U. K.) Ltd. v W. J. Whittall & Sons 142 S.N.M. Abdi v Prafulla K. Mohanta 221 S.Vedantacharya v Highways Dept, of South Arcot 113 Sadleigh v O’ Callageham 252 Safdar Husain v Union of India 79 Sarju Prasad v Mahadeo Prasad 154 Satbir Singh v Balwant Singh 273 Satya Wati Devi v UOI 207 Page xix Law of Torts Sayers v Harlow Urban Dist. Council 264 Schneider v Eisovitch 123 Scott v London & St. Katherine Docks Co. 86 Scott v Sampson 215 Scott v Shepherd 134, 143, 145, 147 Sebastian M. Hongray v UOI 213, 214, 329 Secy. of State v Gokal Chand 145, 148 Selvanayagam v University of West Indies 263 Shabban Bin Hussain v Chong Fook Kam 287 Shaikh Ismail v Venkatanarasimhu 258 Sharp v Powell 144 Shaymal Baran Saha v State of W.B. 91 Shearer v Shields 33 Sheikh Mohmd. V The British Indian Steam Navigation Co. 29 Shelter v City of London Electric Lighting Co. 259 Shyam Sunder v State of Rajasthan 207, 210 Sidraj Dhadda v State of Rajasthan 97 Sim v Stretch 220 Six Carpenter’s Case 292 Skandia Insurance Co. v Kokilaben 191 Skinner v Shaw 9 Slater v Worthington 54 SMITH v CHARLES BAKER & SONS (“STONE QUARRY CASE”) 44, 66 SMITH v LEECH BRAIN & CO. (“EGGSHELL SKULL” CASE) 141, 149 Smith v London & South Western Railway Co. 59, 136 Smt. Basava v State of Mysore 213 Smt. Indrani Raj Durai v Madras Motor & Gen. Ins. Co. 269 Smt. Kundan Kaur v S. Shankar Singh 185 Smt. Manijeh v Sohrab P. Kotwal 308 Smt. S. R. Venkataraman v Union of India 33 Smt. Shivkor v Ram Naresh 84 Sohan Lal Passi v P. Sesh Reddy 191 Sorrel v Smith 314 South India Railway Co. v Ramakrishna 220 South Indian Industries Ltd. V Alamelu Ammal 45, 63 South Wales Miners’ Federation v Glamorgan Coal Company 34 Stanley v Powell 52 State Bank of India v Shyama Devi 179, 187 State of A.P v Challa Ramakrishna Reddy 201 STATE OF A.P. v GOVARDHANLAL PITTI 35 Page xx Law of Torts State of Assam v Md. Nizamuddin Ahmed 200 State of Gujarat v Govindbhai 201 State of Gujarat v Memon Mahomed 213 State of Haryana v Smt. Santra 98 State of M.P. v Chironji Lal 207 State of Maharashtra v Kanchanmala Vijay Singh 186,187 State of Mysore v Ramchandra 158 State of Orissa v Padmalochan 207 State of Punjab v M/s Modern Cultivators 89 State of Punjab v Shiv Ram 99 STATE OF RAJASTHAN v VIDYAWATI 195, 207, 208 State of U.P v Hindustan Lever Ltd. 197, 212 State of U.P. v Tulsi Ram 212 Stearn v Prentice Brothers, Limited 173, 175 Stephens v Myers 283 Stevens v Midland Coun Ry. 309 Subbayya v Verayya 277 Sukhraji v State R.T.C., Calcutta 111 Sullivan v Creed 145, 148 Sushma Mitra v M.P. State Road Transport Corpn 80, 107, 263 Swadling v Cooper 261 Syed Akbar v State of Karnataka 114 I T. C. Balakrishnan Menon v T.R. Subramanian 48, 155 T.J. Ponnen v M.C. Verghese 228, 240 T.V. Rama Subba Iyer v A.M.A. Mohideen 224, 240 Tarry v Asthon 184 Temulgi Jamshedji v The Bombay Tramway Co. 109 The National Small Industries v Bishambhar Nath 90 The Secretary of State, India in Council v Hari Bhanji 195 Theaker v Richardson 227, 228, 241 Titchener v British Railways Board 319, 325 Tolley v J. S. Fry & Sons, Ltd. 222 TOWN AREA COMMITTEE v PRABHU DAYAL 25, 35 Tozer v Child 20 Tuberville v Savadge 283 Turner v Jagmohan Singh 56 TUSHAR KANTI GHOSH v BINA BHOWMIC 207, 231, 246 Twine v Beans Express Ltd. 191 Page xxi Law of Torts U U.P. State Electricity Board v Dist. Magistrate, Dehradun 169 Union of India v Harbans Singh 209 Union of India v Lalman Badri Prasad 265,269 Union of India v Savita Sharma 207 Union of India v Sugrabai 208, 210 Union of India v Supriya Ghosh 265 Ushaben Trivedi v Bhagyalaxmi Chitra Mandir 25 V Vaughan v Taff Vale Rail Co. 59 Vendenburg v Truax 134 Venu v Coorya Narayan 310 Victorian Railways Commissioner v Coultas 118 Videan v British Transport Commission 50 Vidya Devi v M.P State R.T.C. 269 w W.H. Smith & Son v Clinton & Harris 278 Wagner v International Rail Co. 50, 65 Walker v Brewster 253 Walker v T. Sainsbury 46 Watkins v Lee 310 Wheeler v Mertor Board Mills Ltd. 47, 67 WHITE v CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE 126, 129 Me Farlane v E.E. Caledonia Ltd. 129 White v J. and F. 234 WHITE v JOHM WARRICK & CO. LTD. 27 Wilkinson v Downston 132 Williams v Jones 188 Winter Garden Theatre (London) Ltd. v Millenium Ltd. 293 r Winterbottom v Wright 29 Wood v Leadbitter 293 Woolridge v Summer 41, 63 Wright v Rosenbaum 226 Page xxii Law of Torts X X Ltd. v Morgan Grampian (Publishers) Ltd. 278 Y Yachuk v Oliver Blias Co. Ltd. 266 Youssoupoff v Metro Goldwyn Mayer Pictures Ltd. 225 Page xxiii Law of Torts References 1. Law of Torts - R.K Bangia 2. The Law of Torts - Ratanlal & Dhirajlal 3. Winfield & Jolowicz on Law of Torts - W.V.H. Rogers. 4. Salmond & Heuston on Law of Torts – R.F.V. & R.A. Buckley. 5. Law of Torts & Consumer Protection Act - J.N. Pandey. 6. Law of Torts - S.K Kapoor. 7. The Law of Torts - N.H. Jhabvala 8. P. S. Atchuthen Pillai Law of Torts - Avtar Singh (Rev.) 9. Case Book on Tort - Tony Weir. 10. Street on Torts (Oxford Publishing Co.). 11. Verma & Kusum (Eds.): Fifty Years of the Supreme Court of India (Indian Law Institute). 12. The Landmark Judgments of 1997-1998 - Ashok K. Jain 13. Supreme Court Yearly Digests - SCYD - Shailendra Malik (Ed.) (Eastern Book Co.). 14. Cases and Materials on Law of Torts - Faculty of Law, Delhi University, Delhi. 15. Law Q. & A. (First Semester) - Universal Law Publishing Co. Pvt. Ltd. 16. Question Papers referred - Delhi and Other Indian Universities; Competitive Exams like IAS. Page 1 1 Introduction Law of torts is a system of laws, which enables a person who has suffered harm or injury by the acts of another, to claim damages in a civil suit. Evolution of Law of Torts in England and India The essential nature of the law of torts is that it is not codified like statute laws. The law of torts in India is based on English Common law, which is the product of judicial decisions. In Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552, the court observed: “In the absence of statutory law in regard to tortious liability in India, the common law principles evolved in England may be applied in India to the extent of suitability and applicability to the Indian conditions.” There is very little legislation in the area of tort in India, and, elsewhere in the world. The reason is simple- tortuous liability can arise in a number of ways and the number is so large that it is almost impossible to specify each and every act on the part of the defendant who may be made liable for damages. In recent times, some parts of the law of torts have been codified, viz. The Workmen’s Compensation Act, The Employer’s Liability Act, etc. Also, laws relating to defamation, libel, etc. have been framed. Unlike England, there is very little tort litigation in India, the reasons being: lack of consciousness about one’s rights and the spirit of toleration, problem of recognition of the action by courts, and, awarding of very low damages. Thus, numerous cases of injury in India like unlawful Page 2 Law of Trots detention, injury to or the death of people due to adulterated foodstuffs, liquor, medicine, etc., loss due to power cut, noise and other pollutions, etc. are put up without bringing an action in a court of law. Forms of Action in English Law Under the English law, there were three different classes of action- Real, Personal and Mixed. In real actions, the plaintiff claimed right to recover lands, tenements and hereditaments. In personal actions, the plaintiff claimed a debt, or sought to recover a chattel, or claimed damages for injury done to his person or property. Mixed actions partook of the nature of both. Personal actions were: Debt, covenant assumpsit, trespass, detinue, replevin and trover. Detinue was the form of action for the recovery of specific goods wrongfully detained, or their value, and also damages occasioned by their detention. Replevin was the action to recover specific goods which had either been wrongfully distained from the plaintiff or had been wrongfully taken out of his possession. An action of trover was originally the remedy to recover damages against the person who had found goods and refused to deliver them up on demand to the plaintiff. In course of time, it became the form of action where the plaintiff sought to recover damages from the defendant who had converted the plaintiff’s goods to his own use and came to be known as an action of conversion. Purpose/Function of the Law of Torts1 The law of torts exists for the purpose of preventing men from hurting one another, whether in respect of their property, their persons, their reputations, or anything else which is theirs [Jayalakshmi Salt Works Pvt. Ltd. v State of Gujarat (1994) 4 SCC 1], The fundamental principle of this branch of the law is alterum non leadere- to hurt nobody by word or deed. An action of tort, therefore, ________________________ 1. “It is the task of the law of tort to determine when the law will and will not grant redress for damage suffered." Discuss. [I.A.S.-2003] "Tort is concerned with the allocation on prevention of losses which are bound to occur in society. Discuss." [I.A. S.-2011] Page 3 Introduction: Definition Nature & Scope is usually a claim for pecuniary compensation in respect of damage suffered as the result of the invasion of a legally protected interest. However, the law of tort fails to provide adequately for the injury other than physical, done maliciously or carelessly. In Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552, the apex court observed: “The law of tort prevents hurting one another. All torts consist of violation of a right in the plaintiff. Tort law, therefore, is primarily evolved to compensate the injured by compelling the wrongdoer to pay for the damage done. Since distributive losses are an inevitable by-product of modern living in allocating the risk, the law of tort makes less and less allowance to punishment, admonition and deterrence found in criminal law. The purpose of the law of tort is to adjust these losses and offer compensation for injuries by one person as a result of another’s conduct. However, the law could not attempt to compensate all losses. Such an aim would not only be over ambitious but might conflict with basic notions of social policy. Society has no interest in mere shifting of loss between individuals for its own sake. The loss, by hypothesis, may’ve already occurred, and whatever benefit might be derived from repairing, the fortunes of one person is exactly offset by the harm caused through taking that amount away from another. The economic assets of the community do not increase and expense is incurred in the process of realization.” “Security and stability are generally accepted as worthwhile social objects, but there is no inherent reason for preferring the security and stability of plaintiffs to those of defendants. Hence, shifting of loss is justified only when there exists special reasons for requiring the defendant to bear it rather than the plaintiff on whom it happens to have fallen.” In the present case, the deceased while walking on the footpath of a public road struck by a roadside tree suddenly falling on him in a still weather condition; the municipal corporation was held to be not negligent and thus not liable for damages. Interests Protected by the Law of Torts (i) Personal and proprietary interests. (ii) Reputation- libel and slander. (iii) Interests in economic relations- conspiracy, passing off, deceit, etc. Page 4 Law of Torts (iv) Interests in family relations e.g. extent to which the parents may sue in respect of injuries to their children. (v) Interference with judicial process- malicious prosecution. (vi) Miscellaneous interests e.g. right to vote. Remedies in Tort Remedies for torts are of two kinds: Judicial and Extra judicial. Judicial remedies are those which are afforded by the act of law, viz. (1) awarding of damages; (2) granting of injunction; and (3) restitution of property. Extra-judicial remedies are those which are available to a party in certain cases of torts by his own acts alone, viz. expulsion of a trespasser, re-entry on land, re-caption of goods, distress damage feasant, abatement of nuisance. In a tort, besides ‘damages’, the court may also grant ‘injunction’ to the plaintiff to prevent a continuous nuisance. Thus, an injunction may be granted to prevent trespass, or the continuance of a nuisance, to right of way, to markets; or the infringement of copyrights and trademarks; or the publication of a libel or the uttering of a slander; or the disclosure of confidential communications; or the wrongful sale or detention of a chattel; etc. ‘Specific restitution of property’ is another remedy in tort. When the plaintiff has been wrongfully dispossessed of his movable and immovable property, the court may order that the specific property should be restored back to the plaintiff. Nature and Definition of Tort2 No precise or scientific definition of ‘tort’ has been framed so far. The French word ‘tort’ has been derived from the Latin term ‘Tortum’ which means to twist. Thus it implies a conduct, which is not lawful, but rather it is twisted, crooked or unlawful. It is equivalent to the ____________________ 2. What is tort? Discuss the definitions given by various jurists and critically examine/appreciate the same. [C.L. C-95/99/2001/2005, L.C. II-93/2000/2003] What is Tort? Discuss the definition of Winfield and point out its shortcomings. Can your give a better definition of Tort? [L.C.1-95/98/2002/2004] Page 5 Introduction: Definition Nature & Scope English term ‘wrong’, the Roman term ‘delict’, and, the Sanskrit word ‘Jimha'. A tort is a violation of a right of a person/ breach of duty by one person towards another. For example, violation of a duty not to injure the reputation of someone else results in the tort of defamation. The first reported case where the court used the word ‘tort’ is: Boulton v Hardy (1597, Cro. Eliz. 547). In Jayalakshmi Salt Works Pvt. Ltd. v State of Gujarat (1994) 4 SCC 1, the apex court observed: ‘Tort’ dictionarily means “breach of duty leading to damage. The same meaning attaches to it in law. In general, tort consists of some act done without just cause or excuse. No scientific definition of “tort” has yet emerged so far, because the law of tort is based on judicial decisions and because of diverse species of wrongs included under it each having its own peculiar historical background. Above all, the law of tort is still in the process of development. In Jayalakshmi case, the court observed that the basic ingredients of torts are injury and damage due to failure to observe duty. The liability in tort may be “strict liability”, “absolute liability” or “special use bringing with it increased dangers to others” (Rylands v Fletcher) or “fault liability”. Such liability gives rise to action in torts. Since duty is the primary yardstick to determine the tortious liability its ambit keeps on widening on the touchstone of fairness, practicality of the situation, etc.” Some of the definitions of ‘tort’ are: Sec. 2(m), The Limitation Act, 1963- “Tort means a civil wrong which is not exclusively a breach of contract or breach or trust.” Salmond- “It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of a trust or other merely equitable obligation.” 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.” Pollock- “Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related to harm (whether Page 6 Law of Torts there be measurable actual damage or not), suffered by a determinate person.” Thus, it may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by a person so acting or omitting. Winfield- “Tortious liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” Lord Denning- “The province of tort is to allocate responsibility for injurious conduct.” Keeton & Keeton- “Tort law is a body of law concerned with granting or denying claims of individuals or impersonal legal entities against each other for award of damages or other forms of legal relief.” Analysis of Winfield's Definition3 The definition given by Winfield deserves special mention as it has more substance compared to those of other authors. However, it has some shortcomings, viz. 1. The definition cannot be accepted as entirely accurate. In framing this definition, Winfield was not seeking to indicate what conduct is and what is not sufficient to involve a person in tortuous liability, but merely to distinguish tort from certain other branches of law. Thus, the definition doesn’t mention various elements the presence of which could be considered to be a tort. The definition explains the nature of “tort” by distinguishing it from other wrongs like contract or breach of trust. 2. The phrase “duty towards persons generally” is rather vague. It is hardly adequate to include duties arising from special relationships like carrier and passenger, or doctor and patient, and to exclude duties between trustee and beneficiary, or guardian and ward, which fall outside this branch of law (i.e. torts). _________________ 3. Critically examine the concept of ‘Tortious liability’ as defined by Winfield. [D.U.-2007/2009] [C.L.C.-97/2002: L.C.I-97/98] Page 7 Introduction: Definition Nature & Scope 3. It is also not correct to speak of the action for unliquidated damages as the peculiar and distinctive remedy for a tort or breach of duty fixed by the law and not by contract, because such damages may be claimed for a breach of trust. The definition also lacks other remedies viz. self-help, injunction, and, actions for specific restitution of property. 4. The liability is said to arise from the breach of a duty i.e. a duty of the person liable. This may be true of liability in general at an earlier stage of development of tort law, but is not applicable or appropriate to an important category of liability at the present day, viz. vicarious liability of a master for his servant’s tort. In such cases, even though a person has not committed a breach of duty himself, he is held liable. The master’s liability is in reality that of an insurer, against his servant’s wrong-doing and it will be totally unnecessary to describe it as proceeding from the breach of a duty to the person claiming damages from him. The definition by Winfield, however, has the merit of comparative brevity and contains elements which deserve continuing emphasis. Thus, the ambiguity of tortuous liability serves to keep it distinct from the contractual liability where the duty is towards specific persons. Likewise, an action for unliquidated damages is a litmus test of tortuous liability since the award of damages is under the court’s discretion. We may define tort as a civil wrong which is redressible by an action for unliquidated damages, and which is other that a mere breach of contract or breach of trust.4 1. Tort is a civil wrong In the case of a civil wrong, the injured party (Plaintiff) institutes civil proceedings against the wrongdoer (defendant), and the main remedy is damages or compensation. In the case of a criminal wrong, the criminal proceedings against the accused are brought by the State, and the victim is not compensated but the wrongdoer is punished. _________________ 4. Although a tort is a civil injury, not all civil injuries are torts, for no civil injury is to be classed as a tort unless the appropriate remedy for it is an action for unliquidated damages. Comment and discuss the elements of tort. [C.L.C-93/94] Page 8 Law of Torts 2. Tort is other than a mere breach of contract or breach of trust A tort is a civil wrong. However, every civil wrong is not a tort. It will have to be found out that the civil wrong is a tort and not breach of contract or breach of trust. Thus, if a person agrees to purchase a radio set and thereafter does not fulfil his obligation the wrong will be a mere breach of contract. 3. Tort is redressible by an action for unliquidated damages Damages is the most important remedy for a tort. The term unliquidated means something which is not previously determined or fixed but left to the discretion of the court. In breach of contract, the damages are liquidated in the sense that they are either embodied in the contract itself or they can be ascertained by applying some prescribed method. Besides damages, the court may also grant injunction to the plaintiff to prevent a continuous nuisance. According to S.P. Singh, “Tortious liability arises from the breach of a duty primarily fixed by law which results in an infringement of private legal right of another and for which civil action for unliquidated damages, injunction, specific restitution of property or even self-help, as the case may be, can be maintained.” Foundation of Tortious Liability: Law of Tort or Law of Torts?5 An important question arises when one considers the nature of the law of torts: Does the law of torts consist of a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse; or, does it consist of a number of specific rules prohibiting certain kinds of harmful activities and leaving all the residue outside the sphere of legal responsibility? _____________________________ 5. ‘In tort the plaintiff wins his case only when he proves as to what particular tort the defendant has committed against him”. Examine. [I.A.S.-97/2006] “Law of tort is based upon a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse”. Examine. [I.A.S.-95] Which one of the following two expressions is correct and why? ‘Law of Torts’ or ‘Law of Tort’. [I.A.S.-2005] 'Torts are infinitely various, not limited or confined’ Pratt, C.J. in Chapman v Pickers (1762) 2 Wills 145 (146). Discuss. Page 9 Introduction: Definition Nature & Scope According to Winfield, there are two theories with regard to the basic principle of liability in the law of tort or torts: (1) All injuries done by one person to another are torts, unless there is some justification recognised by law. (2) There are a definite number of torts outside which liability in tort does not exist. According to the first theory, 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 plaintiffs. This theory resembles the moral saying, “my duty is to hurt nobody by word or deed”. It is in consonance with the principle, ubi jus ibi remedium (where there is a right there is a remedy). In Skinner v Shaw (1893) 1 Ch. 413 (422), the court observed: “At common law, there was a cause of action whenever one person causes damage to another willfully and intentionally, without just cause or excuse.” Winfield and Pollock support the first theory. Winfield is of the view that it is ‘law of tort’. The fact that new torts are recognised from time to time supports this theory. For instance, negligence became a new specific tort only by the nineteenth century A.D. Similarly, the rule of strict liability was laid down in Rylands v Fletcher (1868) LR 3 HL 330, the rule of absolute liability in relation to hazardous enterprises was laid down in M.C. Mehta case (1987). Indian courts endorse this theory. Tort of intimidation was recognized in Rookes v Barnard (1964). According to the second theory, the ‘law of torts’ consists of a neat/clear set of pigeon- holes each containing a labelled/specific tort like assault, battery, false imprisonment, slander, etc. If the defendant’s wrong will not fit any of these pigeon-holes he has committed no tort. In other words, the plaintiff wins his case only when he proves as to what particular tort the defendant has committed against him [Allen v Flood (1898) A.C. 1]. Thus, there is no general or basic principle of liability, but there are specific rules. The second theory is supported by Salmond. He said: “Just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Whether I am prosecuted for an alleged offence or sued for an Page 10 Law of Torts alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability, and not for me to defend myself by proving that it is within some specific and established rule of justification or excuse.” His book is called the ‘Law of Torts.’ Jenks and Glanville Williams supported his theory; they, however, said that ‘new’ pigeon-holes i.e. torts can be added, by rationalizing that new torts cannot come into being unless the courts regard them as substantially similar to torts which they have already recognized. Salmond supported his theory by pointing out that in all cases of damnum sine injuria parties were not able to get damages although they had suffered substantial losses. To this objection, Winfield gives the answer that when it is said that all unjustifiable harms are tortious, it does not follow that all harms are tortious; a person will recover nothing if he alleges a specific tort and fails to prove some essential ingredients in it, viz. if he sues for the tort of negligence and cannot prove a duty to take care on the defendant’s part. Conclusions: Each theory bears some truth. If we try to see the position existing at any particular point of time we take into account only those torts which have been created until that time; from that narrow and practical point of view Salmond’s theory is correct. If, on the other hand, we observe from a broader point of view and look to the present, past and future, Winfield’s theory is correct. Because whenever the court finds that the harm caused is unjustifiable they consider it a tort, and provide compensation for the same even though previously there had been no ‘pigeon-hole’ for the same. A person sustaining a loss does not of necessity have to find a label to describe a tort in order to obtain compensation. Many instances did appear where a plaintiff put forward a new claim such as for mental pain followed by nervous shock and was awarded damages. In fact, ever since the famous judgment in Ashby v White, it has been clearly established that mere novelty will not prevent a person from suing in court. The court said: “If man will multiply injuries, action must be multiplied too: for every man who is injured ought to have recompense.” The law of torts has in the main been developed by the courts proceeding from the simple problem of primitive society to those of our present complex civilization. Decisions such as Donoghue v Stevenson (1932) AC 562, show that the law of tort is steadily expanding and the Page 11 Introduction: Definition Nature & Scope idea of its being cribbed, cabined and confined in a set of pigeon-holes is untenable. However, Winfield was inclined to hold that there was some fundamental basic rule of liability in the growing modern law of torts. In Jayalakshmi Salt Works Pvt. Ltd. v State of Gujarat (1994) 4 SCC 1, the apex court observed: Truly speaking entire law of torts is founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently. Therefore, it would be primitive to class strictly or close finally the ever-expanding and growing horizon of tortious liability. Even for social development, orderly growth of the society and cultural refineness, the liberal approach to tortious liability by courts is more conducive. Comparison of Tort with Other Branches of Law The nature of a tort can be understood by distinguishing (1) Tort and Crime, (2) Tort and duty in other civil cases, viz. a Contract, a Trust and a Quasi-Contract. Unlike torts, all other civil wrongs are governed by statutes.6 (a) Distinction Between Tort and Crime7 TORT CRIME 1. It is a private wrong i.e. an 1. It is a public wrong i.e. a wrong against infringement of the private or civil right of the public at large or wrong against the an individual. It is comparatively less State, even though the victim is an serious and labelled as civil wrong. For individual. It is a more serious wrong, for example, obstruction outside a particular example, an obstruction in the middle of an house is a tort. public road is a crime. 2. Law of torts is uncodified, however, 2. Law of crimes is codified (e.g. there is limitation period for filing of suits. Indian Penal Code, Criminal Procedure Code) and there is no bar of limitation of prosecution in crime. ___________________________ 6. “All torts are civil injuries, but all civil injuries are not torts.” Explain the above statement. [I.A.S.-2004] 7. Distinguish between Tort and Crime. [D.U.-2007/2009] [C.L.C.-97/2001, L.C.I- 2003] Distinguish between tortious liability and criminal liability. [I.A.S.-2007] Page 12 Law of Torts 3. The rules applicable in a case of tort 3. In an action for the offence of are generally different from those in the defamation, the defence of truth can be case of crime. For example, in the case of taken if the publication was made for tortuous liability for the wrong of public good. defamation, truth is in itself a defence. 4. In tort, intention of the wrongdoer 4. In a crime, intention of the is not crucial in all cases (e.g. negligence). wrongdoer is usually crucial in determining Further, a ‘strict’ liability makes the his liability. An ‘accidental’ crime entails defendant liable for accidental harms lesser or no punishment. Motive in crime is caused without any intention and not so crucial. negligence on his part. In other words, sometimes the law recognizes ‘no fault' liability. 5. The suit has to be filed by the 5. The criminal proceedings are not injured party as plaintiff and by none else. brought by the injured party but by the Parties may enter into a compromise and State. Except in certain exceptional cases, the suit may be withdrawn. the law does not permit a settlement in criminal cases. 6. Damages or compensation to the 6. The wrongdoer is punished so as to injured party to make good the loss deter him and other potential offenders suffered by him, is the most common from committing wrongs. In certain remedy of a tort. exceptional cases e.g. Sec. 357, Cr.P.C., provision for compensation also provided for. 7. Detention, conversion, wrongful 7. Dacoity, murder, forgery, etc. are dismissal, etc. are purely civil wrongs i.e. purely criminal wrongs i.e. crimes. torts. Page 13 Introduction: Definition Nature & Scope Similarities 1. In both, there is violation of rights in rem, the rights and duties are fixed by law (irrespective of the consent of the parties). Injunction may be granted in both. 2. There are various wrongs, which find their place both under criminal law and law of torts. Examples are assault, defamation, negligence, nuisance and conspiracy. In such cases, for the purpose of civil liability, the rules of law of torts will be applicable and for the purpose of criminal liability the rules of criminal law will apply. It is possible that the same act done by a person may result in two wrongs, a crime as well as a tort, at the same time. The civil and criminal remedies in such a case are not alternative but they are concurrent. For instance, if Z digs a ditch on public road causing inconvenience to public, Z has committed an offence of public nuisance. If Y, a passerby, falls into that ditch and thereby gets injured, Z’s act also becomes a tort of private nuisance. Z will be punished under criminal law and also be liable to compensate Y under law of torts [Campbell v Padigngton Corpn. (1911) 1 K.B 869]. (b) Distinction Between Tort and Contract8 TORT BREACH OF CONTRACT 1. In tort, the duties are primarily fixed by 1. In a contract, the duties are fixed by the the law and a breach of these duties parties themselves, the breach of which is a constitute a tort. breach of contract. 2. A tort is violation of a right in rem 2. A breach of contract is the violation of a i.e. of a right vested in some determinate right in personam i.e. against some person and available against the world at determinate person. In other words, the large. A’s duty not to defame is not duty is based on the privity of contract and towards X or Y or Z only. Whoever is each party owes duty only to the other defamed by A will be entitled to bring an contracting party. Thus, a stranger to action against him. A third party can sue contract cannot sue. for tort even though there was no contract between the wrongdoer and the person injured. ____________________________ 8. Distinguish between Tort and Breach of Contract. [D. U. -2007/2009] [L. C.I-93/94/95/99/2000/2005] Page 14 Law of Torts 3. In a tort, the obligation arises 3. In a contract, the obligation is independently of any consent founded on the consent of the parties. i.e. a tort is inflicted against the will and without the consent of the other party. 4. In a tort, motive may be taken into 4. In a breach of contract, the account, while deciding a case. If the defaulting party is bound to incur liability motive was found and a wrong had been irrespective of the motive or intention. done to avoid a greater evil, the defaulter might escape the liability. Intention is sometimes taken into consideration. 5. In a tort the damages awarded 5. In a breach of contract, the plaintiff unliquidated i.e. not previously fixed but is awarded the amount of damages which is decided by the courts. Generally the parties either already settled between the parties are not known to each other until the tort is i.e. liquidated damages, or the actual committed and moreover it is difficult to damages which can be determined from the visualize beforehand the quantum of loss in relevant facts. tort. 6. In a tort, limitation begins from the 6. In contract, limitation commences date when the damage is suffered. when the breach of obligations takes place. Similarities 1. In both, there is an infringement of private rights, and action is taken by the person injured. Damages (Compensation) is the main remedy in both. 2. Sometimes the same wrong is both a breach of contract and a tort. In such cases, the injured party can claim damages under either of the branches of law. Page 15 Introduction: Definition Nature & Scope Damages in Tort and Contract9 Damages is the most important remedy for a tort as well as contract. Damages are the pecuniary compensation which the law awards to a person for the injury he has sustained by the wrongful act of another. The general rule is that in fixing the sum to be given as damages the court should as nearly as possible get at that sum of money which will put the aggrieved party in the same position as he would have been in, if he had not sustained the wrong for which he is getting the compensation. The basic principle for the measure of damages in tort as well as in contract is same, viz. that there should be restitutio in integram (restoration to the previous posi-tion). However, there are certain differences also which are discussed below: (i) In a tort, the damages are ‘unliquidated’ which means something, which is not previously determined or fixed but left to the discretion of the court. In breach of contract, the damages are ‘liquidated’ in the sense that they are either embodied in the contract itself or they can be ascertained by applying some prescribed method. (ii) Intention is an essential element in tort in assessing damages, but not in a breach of contract. (iii) In contract damages are only a compensation. In tort to property they are the same. Where an absolute right is infringed, the plaintiff is awarded nominal damages. Where the injury is to the person or feelings and the facts disclose fraud, malice or in- sult, exemplary damages are given; there is no such distinction as nominal or exemplary damages in contract except in an action for breach of promise of marriage. (iv) In tort the pecuniary condition of the wrong-doer is often taken into account, not so in contract. (v) The rule as to remoteness of damage is not the same in actions of tort and of contract. In tort damages are given for consequences of which the defendant had no notice (Polemis case). In the case of breach of contract the rules in Hadley v Baxendale apply. ______________________ 9. What are liquidated damages and when are they awarded? [I. A. S. -2006] Page 16 Law of Torts (vi) In contract it is the duty of the plaintiff to take measures to reduce the damages if there is breach (mitigation of damages). A tort consists in the defendant’s failing to do an act which he is bound to do or in doing one which he ought not to do. (c) Tort v Bailment Bailment is a specific contract in which the duty arises from a relation created by the parties i.e. between the bailor (who delivers the goods) and bailee (to whom goods are delivered for hire, pawn or pledge, etc.). Thus, the bailee’s liability is not tortuous. However, if the bailor’s claim is not founded upon the contract but upon a breach by the bailee of one of the common law duties, then the liability is tortuous. (d) Tort v Breach of Trust Trust is a matter of confidence, and not a matter of contract or tort; it is merely an equitable wrong. In the case of a ‘breach of trust’ by the trustee, the beneficiary can claim such compensation which depends upon the loss that the trust property has suffered. The amount of damages being ascertainable; the damages in the case of breach of trust are liquidated. On the other hand, damages in a tort are unliquidated. In breach of trust, compensation is not termed as damages. The law of torts has its origin as part of common law whereas breach of trust could be redressed in the Court of Chancery. (e) Tort v Quasi-Contract When a person gains some advantage or benefit to which some other person was entitled to or by such advantage another person suffers an undue loss, the law may compel the former to compensate the latter in respect of advantage so gained, even though in fact there is no such contract. For example, A, a tradesman, leaves goods at B’s house by mistake. B treats the goods as his own. He is bound to pay for them. In both tort and a quasi-contract, the duty is imposed by the law. The main difference between the two is that the law of quasi-contract gives a right only with respect to money and generally it is a liquidated sum of money. Law of torts, apart from a right to damages, grants other remedies also and a claim for damages under it is always for an Page 17 Introduction: Definition Nature & Scope unliquidated sum of money. Further, in a quasi-contract the duty is always towards a particular person, whereas under the law of torts the duty is towards persons generally. In certain cases, when a tort has been committed, the injured party has a choice of not bringing an action for damages in tort, but of suing the wrongdoer in quasi-contract to recover the value of the benefit obtained by the wrongdoer. When the plaintiff elects to sue in quasi-contract instead of tort, he is said to have ‘waived the tort’. The torts which can be waived are those of conversion, trespass to land or goods, deceit and action for extorting money by threats. In certain torts, like defamation and assault, the doctrine of waiver cannot be applied. Discharge of Tort Where there is a vested right of action for a tort, such a right can be discharged in the following ways: (i) Death of either party; (ii) Waiver; (iii) Accord and satisfaction; (iv) Release; (v) Acquiescence; (vi) Judgement recovered; and (vii) Statute of Limitation. Waiver of Tort In certain cases, when a tort has been committed, the injured party has a choice of not bringing an action for damages in tort, but of suing the wrongdoer in ‘quasi-contract’ to recover the value of the benefit obtained by the wrongdoer. When the plaintiff elects to sue in quasi-contract instead of tort, he is said to have ‘waived the tort’. The torts, which can be waived, are those of conversion, trespass to land or goods, deceit and action for extorting money by threats. In certain torts, like defamation and assault, the doctrine of waiver cannot be applied. Disability to Sue and To be Sued in India Who Cannot Sue Ordinarily, all persons are entitled to sue in tort. But there are certain exceptions to this rule viz. a bankrupt, a corporation, a child in the womb. A convict in India, unlike England, may sue. A bankrupt may sue for personal wrongs. In India, unlike England, an action in tort by one spouse against the other is maintainable. A Corporation can sue for a libel affecting its property or business. An infant can sue for a tort. Page 18 Law of Torts Who Cannot be Sued There are certain classes of persons who cannot be sued viz. foreign sovereigns and ambassadors, public officials, the State. However, the public officials for their private acts can be sued. Similarly, the State can be sued for non-sovereign functions. An infant is, in general, liable for his torts in the same manner as an adult; however, where intention, knowledge, or malice is an essential ingredient of liability, infancy can be a defence. Similarly, a lunatic or drunkard can be made liable. A married woman may sue and be sued alone. In India, a husband is not liable for the torts of his wife. General Conditions of Liability for a Tort (Constituents of Tort)10 In general, a tort consists in some act done by the defendant whereby he has without just cause or excuse caused some form of harm to the plaintiff. In order to constitute a tort, the following conditions are to be satisfied: (1) There must be a wrongful act or omission on the part of the defendant. (2) Such act or omission should result in legal damage (injuria) to the plaintiff. (3) Some legal remedy in the form of an action for damages must be available. (1) Act or Omission In order to make a person liable for a tort he must have done some legal wrong i.e. violates the legal rights of another person e.g. committing the act of trespass or defaming a person. An act is wrongful if it invades any of the three rights of a person viz. good reputation, property, and, his right of bodily safety and freedom. The wrongful act, if merely a moral/religious or social wrong, will not amount to a tort e.g. failing to help a starving man or saving a drowning child. ______________________________ 10. “Before a person can recover for loss which he suffered from another person's act, it must be shown that his case falls within the class of actionable wrongs." Discuss [I.A.S.-2011] Page 19 Introduction: Definition Nature & Scope The wrongful act can be committed by a person either negligently, or intentionally or even by committing a breach of strict duty. It also includes omission to perform a legal duty. Thus, in Municipal Corporation of Delhi v Subhagwanti (AIR 1966 SC 1750), it was held that it was the duty of the Corporation to keep the clock tower in proper repairs and if falling of the same results in the death of some persons, the Corporation would be liable for its omission. (2) Legal Damage11 The test to determine the liability under the law of torts is to see whether any legal right of the plaintiff has been violated or not. If a legal right is violated, then it does not matter that the plaintiff has suffered any loss or not. “The foundation of every action in tort... is an act which is wrongful, and which may be qualified legally as an injury” [Rogers v Rajendra Dutt (1860) 8 M.I.R. 103], The term ‘injuria’ refers to infringement of a legal right and the term ‘damnum’ means substantial harm, loss or damage. The term ‘sine’ (or ‘absque’) means without. Injuria sine damnum12 This maxim means violation of a legal right without causing any harm, loss or damage to the plaintiff. Thus, it is the behaviour, which is actionable as a tort. It is always actionable as legal wrongs entail a remedy. Every injury imports damage. Infringement of private right is actionable per se. No actual loss or damage is required to be proved by the plaintiff. Torts are of two kinds - namely, those, which are actionable per se (i.e. the law conclusively presumes damages as in case of violation of absolute rights), and those, which are actionable only on proof of actual damage resulting from them (as in case of qualified rights). Thus, the act of trespassing is actionable even though the plaintiff has not suffered any harm. Similarly, a libel is actionable per se, while __________________ 11. “Violation of legal rights, and not damage, is necessary to an action for unliquidated damages.” Discuss. 12. Write a short note on injuria sine damno. [D.U. -2007/2008] [L.C.I-93/94/95/2000/2003; L. C.II-93/94/2001/2005] Page 20 Law of Torts slander (i.e. oral as opposed to written defamation) is not actionable without proof of actual damage. The following cases explain the maxim: Leading Case: ASHBY v WHITE (1703) 2 Lord Raym 938 In this case, the plaintiff succeeded in his action, even though the defendant’s act did not cause any damage. The plaintiff was a qualified voter at a parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiff’s vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won in spite of that. The defendant was held liable. The following observations made by the court aptly clarify the principle of the maxim: “If the plaintiff 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, and indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. Every injury imports a damage, though it does not cost a party one farthing (or paisa) (the damage is not merely pecuniary), the damage being that the person is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking of them yet he shall have an action. A man shall have action against another for riding over his ground, though it does him no damage, for it is an invasion of his property, and the other has no right to come there.”] However, where the returning officer 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]. In Municipal Board of Agra v Asharfi Lal (AIR 1921 All. 202), the court followed the ruling in Ashby v White. It was observed that if any duly qualified citizen or person Page 21 Introduction: Definition Nature & Scope entitled to be on the electoral roll of any constituency is omitted from such roll so as to be deprived of his right to vote, he has suffered a legal wrong and has a legal remedy. In Bhim Singh v State of J & K (AIR 1986 SC 494), the petitioner, an M.L.A. of J & K Assembly, was wrongfully detained by the police. Thus, he was deprived of his fundamental right to personal liberty and constitutional right to attend the Assembly session. The court awarded exemplary damages of Rs. 50,000 by way of consequential relief. It has been held that an action will lie against a banker, having sufficient funds in his hands belonging to the customer, for refusing to honour his cheque, although the customer has not thereby sustained any actual loss or damage [Marzetti v Williams Bank (1830) 1 B & Ad 415]. Sometimes, even trivial matters have been taken account of by the courts on the ground that “to enforce one’s rights when they are violated is never a legal wrong, and may often be a moral duty.” In this case, the plaintiff, a guest at the defendant’s hotel, was fed up with the food served at the hotel, and so he purchased some raw food from outside and gave it to the hotel chef to be cooked and brought to his room. This was done, but the food was accompanied by a bill, which he refused to pay. The following morning, he 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 [Morningstar v Fafayette Hotel Co. 211 N.Y. 465]. In cases of injuria sine damno the loss suffered by the plaintiff may be relevant only as regards the measure of damages. Generally nominal damages are awarded by the court if no actual damage is proved. If, however, the court feels that the violation of a legal right is owing to. mischievous and malicious act, as had happened in Bhim Singh’s case, the court may grant even exemplary damages. Page 22 Law of Torts Damnum sine injuria13 It means that the plaintiff may suffer actual or substantial loss without any violation or infringement of legal right and therefore no action lies in such cases. This is generally so when the exercise of legal right by one results in consequential harm to the other, even though the injury is intentional. It is never actionable, as moral or social wrongs have no remedy. Similarly, hurt to religious feelings is not an actionable tort. The reason underlying this maxim is simple, viz. 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 view of the conflict of interest. Every possible form of harm or damage is not recognized by the law. “You must have injury as well as damage”. There are many forms of harm of which the law takes no account: (i) Loss inflicted on individual traders by bona fide (free and fair) competition in trade. (ii) Where the damage is done by a man acting under necessity to prevent a greater evil. (iii) Damage caused by defamatory statements made on a privileged occasion. (iv) Where the harm is too trivial, too indefinite or too difficult of proof. (v) Where the harm done may be of such a nature that a criminal prosecution is more appropriate e.g. in case of public nuisance or causing of death. (vi) There is no right of action for damages for contempt of court. __________________ 13. ‘Every injury imparts damage, but every damage is not injury’. Discuss the statement in the light of decided cases. ‘Legal damage is neither identical with actual damage, nor is it necessarily pecuniary.’ Discuss. Write a short note on Damnum sine injuria. [D. U. -2007/2008] [L. C.I-93/94/95/000/2006; L. C. II-93/94/98/2001/2003] P, a priest, suffered substantial monetary loss on account of an explanation of ‘milk- miracle’ given by R, a rival of P. P files a suit for damages against R. Examine whether tortuous liability arises in this case. [C.L.C.-95] [Note: R is not liable as R has not infringed any legal right of P.] Page 23 Introduction: Definition Nature & Scope The following cases explain the maxim: In Gloucester Grammar School case (1410) Y.B. Hill, 11 Hen, the defendant, a schoolmaster, set up a rival school to that of the plaintiffs. The boys from the plaintiff’s school flocked to the defendant’s. Because of the competition the plaintiffs had to reduce their fees. Held that the plaintiffs had no remedy for the loss thus suffered by them. Hankford J. said: “Damnum may be absque injuria (without infringement of a right) as if I have a mill and my neighbour builds another mill whereby the profit of my mill is diminished, I shall have no action against him, although I am damaged... but if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives.” Thus, it emerges that one can compete with one’s rival without causing any hindrance to him.14 In Mogul Steamship Co. v McGregor Gow & Co. (1892) A.C. 25, a number of Steamship companies combined together and drove the plaintiff’s company out of trade by offering reduced freight. Held that the plaintiff had no cause of action as the defendants had only used lawful means to protect and extend their trade and increase their profits. In India, however, such trade combines could come under the purview of the Monopolies and Restrictive Trade Practices. The case of Chesmore v Richards (1859) 7 HCL 349, shows that if a man has the misfortune to lose his spring by his neighbour digging a well, he must dig his own well deeper. In this case, the plaintiff, a mill owner, was using water for over 60 years from a stream which was chiefly supplied by the percolating underground water. The defendant dug a well on their land deep enough to stop the larger volume of water going to plaintiff’s stream. For this the defendant was held not liable.15 _______________________________ 14. The plaintiff was running a computer consultancy business. Another competitor in the same business opened an office in the vicinity of the plaintiffs office. Consequently the plaintiff suffered a sharp fall in his income and sued the competitor for the damages. Will the plaintiff succeed? Decide giving reasons. [D.U.-2011] 15. A, the owner of a mill, was getting water for his mill from a stream which was naturally flowing near the mill of A. B, the owner of another mill, dug an extensive well which hindered the flow of water to A’s mill. Is B liable for a tort? Give reasons to support your answer. [I.A.S.-2006] Page 24 Law of Torts Similarly, in Acton w Blundell16 (1848) 12 M&W 324, the defendants by digging a coal pit intercepted the water which affected the plaintiff’s well less than 20 years old, at a distance of about one mile. Held, they were not liable. It was observed: “The person who owns the surface may dug therein and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such rights he intercepts or drains off the water collected from underground springs in the neighbour’s well, this inconvenience to his neighbour falls within the description damnum absque injuria which cannot become the ground of action.” In P. Seetharamayya v Mahalakshmma (AIR 1958 A.R 103), held that the owner of land on or near a river has a right to build a fence upon his ground to prevent damage to his ground by the overflow of river even though as a result of which the over-flowing water is diverted to the neighbour’s land and causes damage (it is to be noted that if the flood- water has already entered one’s land, the law does not permit him to transfer it upon another’s land).17 Likewise, in Rouse v Gravel Works Ltd. (1940) 1 K.B. 489, held that the defendants had a legal right to excavate the gravel on their land, and the accumulation of water in the excavation and its effect upon the adjoining plaintiff’s land were caused, not by the direct action of the defendants, but by the natural agencies of rains, percolation and wind, over which the defendants had no control. In Dickson v Reuter’s Telegram Co. (1877) 3 C.P.D. 1, the defendants were held not liable even though their negligence had caused damage to the plaintiff. A sent a telegram to B for the shipment of certain goods. The telegram co. by a mistake delivered the telegram to C. C acting on the telegram sent the goods to A who refused to accept the goods stating that he had ordered the goods not from C but from B. Held that C had no cause of action against the company for the ___________________ 16. A question based on the same facts. [L.C.II-96] 17. In order to ward off the flow of flood water into his land from a neighbouring stream, Rajesh dug up a trench and constructed a bund on his land. As a result of his act, the water inundated Paresh's land and damaged his crops. What remedy, if any, is available to Paresh under the Law of Torts? Would your answer be different if Rajesh’s act was guided by malice towards Paresh? [D.U.-2009] Page 25 Introduction: Definition Nature & Scope company did not owe any duty of care to C and no legal right of C could, therefore, be said to have been infringed. In Dhadphale v Gurav (1881) 6 Bom 122, the servants of a Hindu temple had a right to get the food offered to the idol, but the person who was under an obligation to the idol 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 do so might involve a loss to the plaintiffs. There should be a breach of legal duty, and not a breach of religious duty. In Ushaben Trivedi v Bhagyalaxmi Chitra Mandir (AIR 1978 Guj 13), a suit was filed against the screening of the picture “Jai Santoshi Ma” on the ground that certain scenes in the movie hurt the religious feelings of persons having an interest in Hindu religion and mythology. The court held that the courts of law have not recognized hurt to religious feelings as a civil actionable wrong. In Bradford Corporation (Mayor of) v Pickles18 (1895) A.C. 587, held that even if the harm to the plaintiff has been caused maliciously no action can lie for the same unless the plaintiff can prove that he has suffered injury because of an illegal act of the defendant. In this case, the defendant sank a shaft over his land intentionally and intercepted the underground water which was flowing to the reservoir of the plaintiffs. Held that the plaintiffs have no cause of action since the defendant was exercising his lawful right although the motive was to coerce the plaintiffs to buy his land. The plaintiffs have no cause unless they can show that they are entitled to the flow of water in question, and that the defendant has no right to do what he is doing... Similarly, in Town Area Committee v Prabhu Dayal (AIR 1975 All. 132) held that if a person constructs a building illegally, the demolition of such building by the municipal authorities (though motivated by malice) would not amount to causing “injuria” to the owner of the property. ___________________ 18. A was annoyed with a City Development Authority’s refusal to purchase his land in connection with the scheme of water supply for the town. In revenge he (A) sank a shaft on his land. The water which percolated through his land in undefined channels to the land of C.D.A. on a higher level was consequently discoloured and diminished. The C.D.A. sues A. How will you decide? [L.C.I-98] Page 26 Law of Torts (3) Legal Remedy or Damages The third and final ingredient for a tort is that there must be a civil action available for damages, which is the main remedy. Other remedies such as injunction are additional only. The maxim Ubi jus ibi remedium means that ‘where there is a right there is a remedy’ or ‘there is no wrong without a remedy’. In Ashby v White, it was observed that “if the plaintiff 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. And indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. If man will multiply injuries actions must be multiplied too: for every man who is injured ought to have recompense.” In a way, law of torts owes its development to this maxim. However, the maxim does not lay down that there is a legal remedy for every wrong. Thus, wrongs not recognized by law are not actionable. The maxim should mean: “where there is no legal remedy, there is no legal wrong” (Justice Stephen). The maxim ex turpi causa non oritur actio means that an action does not arise from an immoral or a base cause. Thus, if the damage is in any manner tainted with immorality, no cause of action can be maintained. Thus, if a person gets a sexual disease through his paramour (who concealed it), she is not entitled to sue him [Hegarty v Shine (1878) 1 Cox C.C. 145], FURTHER QUESTIONS Q.1. Whether an exemption clause in a contract would also exempt a tortuous liability? Comment. (a) A hired a bicycle from B. The written contract contained a clause which read, “Nothing in this agreement shall render the owner liable for any personal injuries to the rider of the machine hired.’’ Owing to a defect in the brakes of the cycle, A met with an accident and got injured. Can A recover damages? Decide while making a distinction between contractual liability and tortuous liability. [C.L.C. -93; L.C.II-93/94] Page 27 Introduction: Definition Nature & Scope Distinguish between tortious liability and contractual liability. [D.U.-2011] [I.A.S.-2004] (b) A purchased woollen garments from retailer B which was manufactured by M/s M. and Sons. A suffered from dermatitis after wearing the garments. A files a suit claiming damages from B as well as M/s M. and Sons. Decide, giving reasons. [C.L.C.-95] A.1. (a) Contractual and Tortious Liability In many cases, a person voluntarily binds himself by a contract to perform some duty, which already lies upon him independently of any contract. The breach of such a contract is also a tort. For example, the right of injured railway passenger to sue the railways either for breach of contract of safe carriage or for negligence (tort) in carrying him. Similarly, if a person leave his horse with his neighbour for a week and go out and the neighbour allows the horse to die of starvation, there is breach of contract in as much as the bailee has failed to exercise due care, and the bailee has also committed tort of negligence. In such cases of concurrent liability in tort and contract, the plaintiff can’t claim the damages twice over but either to sue for breach of contract or for the commission of tort. A doctor or surgeon is under a concurrent liability in tort and contract, but not an architect or a solicitor. According to the definition of tort, it is the violation of a right conferred by law. No contract between private parties is capable of curtailing or modifying the law, and therefore, no exemption clause in a contract is capable of exempting a party from tortious liability [White v John Warrick & Co. (1953) 2 All ER 1021 (CA)]. The case is discussed hereunder. Leading Case: WHITE v JOHN WARRICK & CO. LTD. [(1953) 2 All ER 1021] In this case, a contract of hire of a carrier tricycle provided that: “Nothing in this agreement shall render the owners liable for any personal injuries to the riders of the machine hired.” The machine was defective and the hirer was thrown off and was injured. The plaintiff (hirer) brought an action for damages against the defendant company. The defendant relied on the said clause of contract for their defence. Page 28 Law of Torts Their Lordships observed that the said accident was due to the negligence and/ or breach of contract of the owner, their servants or agents, who failed to take any proper care to ensure that the said tricycle was in proper working condition. The owners had/owed a duty of care to the servants and they owed a like duty to the hirer himself. The breach of a duty is a tort which can be established without relying on any contract at all. Held, an action for damages for the breach of contract and an action for a tort may arise from the same set of facts. The fact that there is a contractual relationship between the parties which may give rise to an action for breach of contract, does not exclude the co-existence of a right of action founded on negligence as between the same parties independently of the contract, though arising out of the relationship in fact brought about by the contract (Donoghue v Stevenson). The claim for negligence in this case is founded independently in tort and not on contract.] Thus, in the case in question, A can recover damages. In Rajkot Munic. Corpn. v Manjulben J. Nakum (1997) 9 SCC 552, the Supreme Court observed: “If the claim depends upon proof of the contract, action does not lie in tort. If the claim arises, from the relationship between the parties, independent of the contract, an action would lie in tort at the election of the plaintiff, although he might alternatively have pleaded in contract.” Thus, where the relationship does not give rise to any duty of care to the plaintiff, no action in tort can be maintained. For example, where a message is delivered by a telegraph company by mistake to a person for whom the message was not intended, and who in consequence suffers damage, no suit will lie, for there is no privity of contract between the parties, nor is any duty of care cast upon the telegraph company independently of contract (See Dickson v Reuter’s Telegram Co. case, above). In Manju Bhatia v New Delhi Munic. Corpn. (1997) 6 SCC 370, a building contract was entered into by a builder and the allottees. The allottees paid the amount and the building was constructed. However, Page 29 Introduction: Definition Nature & Scope as the building was constructed by the builder in violation of municipal regulations, the Municipal Corporation demolished the flats of top four floor. The allottee-owners of the demolished flats, having not been informed by the builder about the illegal construction and not given notice of caveat emptor, suffered loss and therefore they sued the builder for damages in tort. It was held by the Supreme Court that the builder is liable to pay damages up to Rs. 60 lakhs including the amount paid by the allottees. The Supreme Court observed: “In the tort liability arising out of contract, equity steps in and tort takes over and imposes liability upon the defendant for un-quantified damages for the breach of the duty owed by the defendant to the plaintiff. Equity steps in and relieves the hardships of the plaintiff in a common law action for damages and enjoins upon the defendant to make the damages suffered by the plaintiff on account of the negligence in the case of the duties or breach of the obligation undertaken or failure to truthfully inform the warranty of title and other allied circumstances”. A contract by the bailee exempting himself from liability for negligence is not valid [Sheikh Mohmd. v The British Indian Steam Navigation Co. (1908) 32 Mad. 95], (b) When X’s wrongful act results in the breach of a contract which he had entered into with Y and also the commission of a tort against Z (a stranger to contract), it was thought that just like Y, Z has also to show privity of contract before he can bring an action for tort. Winterbottom v Wright was responsible for introduction of this “privity of contract fallacy” into the law. However, in Donoghue v Stevenson (1932) A.C. 562, held that the action in tort is independent of a contract and the rule that the privity of contract is essential for an action in tort is highly irrelevant and unjust. Thus, a consumer could bring an action against the manufacturer even though there was no contract between the manufacturer and consumer. The manufacturer of chattels owes a duty to the ultimate user or consumer. This duty had its origin in the law of tort and not in the law of contract. Whatever the contract, it was only between the manufacturer and the retailer. Page 30 Law of Torts The present position is that the “privity of contract fallacy” has disappeared. The matter is open: “The absence of a contract between the parties is, but one of the factors to be considered in determining whether liability in tort exists.” Thus, where A purchased woollen garments from a retailer B which was manufactured by M/s M. and Sons, and A suffered dermatitis after wearing the garments, A can claim damages from M/s M. and Sons (Grant v Australian Knitting Mills Ltd. 1936 A.C. 85). A cannot claim damages from the retailer B. Q.2. Distinguish between damnum sine injuria and injuria sine damnum with the help of decided cases. [D.U.-2009/2011] [C.L.C.- 95/2004] Damnum sine injuria and injuria sine damnum are two different principles of law. Comment briefly. [I.A.S.-2009] Do you agree with the view that ‘injuria sine damnum’ is never actionable and 'damnum sine injuria’ is always actionable? [C.L.C. -94] A group of transporters joined hands and offered reduced rates of transportation and lucky draw in order to induce customers to transport goods only through them. In consequence of this, a company B which was kept out of the combination suffered trade losses. Company B files a case of damages alleging that by a deliberate act of defendant it has suffered losses. Decide, giving reasons. [C.L.C. -92] A.2. Legal Damage There are two general conditions of tortuous liability, namely (1) There must be a wrongful act, and (2) This act must result in legal damage (injuria) i.e. there must be a violation of legal right. The test to determine the liability under the law of torts is to see whether any legal right of the plaintiff has been violated or not. If a legal right is violated, then it doesn’t matter that the plaintiff has suffered any loss/damage or not. The term ‘injuria’ refers to infringement of a legal right. The term ‘damnum’ means substantial harm, loss or damage. The term ‘sine’ means without. Page 31 Introduction: Definition Nature & Scope Distinction Between Injuria sine damnum and Damnum sine injuria Injuria sine damnum Damnum sine injuria 1. It means violation of a legal 1. It means actual or substantial right without causing any harm, damage without infringement loss or damage to the plaintiff. of a legal right. 2. It is always actionable. 2. It is never actionable. 3. It contemplates legal wrongs where 3. It contemplates moral or social there is a remedy. wrongs without any remedy. 4. The defendant acts illegally to 4. The defendant causes harm to infringe legal right of theplaintiff. the plaintiff by acting legally. In other words, exercise of legal right by one results in consequential harm to the other. For cases relating to these maxims, please see the text. Second part of the question It is incorrect to say that ‘injuria sine damno’ is never actionable and ‘damnum sine injuria’ is always actionable. In fact vice versa is the correct view. Third part of the question In Mogul Steamship Co. v McGregor Gow & Co. (1892) A.C. 25, a number of Steamship companies combined together and drove the plaintiff’s company out of trade by offering reduced freight. It was held that the plaintiff had no cause of action as the defendants had only used lawful means to protect and extend their trade and increase their profits. In the case in question, the group of transporters acted in furtherance of their legal right in order to induce customers to transport goods only through them. If in consequence of this, a company B has suffered trade losses, it has no remedy in the law of torts because there has been no violation of a legal right vested in it. The essence of the maxim Damnum sine injuria is: “The mere fact that a man is injured by another’s act gives in itself no cause of action; if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is exercising a legal right.” Page 32 Law of Torts Q.3. (a) X, who was entitled to be on the electoral roll, was wrongfully omitted from such roll. The candidate for whom X would have voted was elected. X brings an action against the election authorities. How will you decide? Will your answer be different if the candidate for whom X would have voted was not elected or lost by a single vote? (b) Practice of untouchability in any of its form is illegal in India. X, a customer, was denied entry into Y’s hotel on the sole ground of his being an untouchable. He went to Z’s hotel and could enjoy better snacks at much cheaper rates than those at Y’s hotel. X, however, wants to file a suit against Y for damages for refusing entry into his hotel? Will X succeed? A.3.(a) The present problem is based on the maxim ‘Injuria sine damnum’ i.e. violation of a legal right without causing any harm, loss or damage to the plaintiff. The election authorities are liable in any case, whether the candidate for whom X would have voted was elected or not. See Ashby v White. (b) The case is covered by the maxim ‘injuria sine damnum’. X can claim damages from Y, because Y has infringed the legal right of X. It does not matter that, in fact, X didn’t suffered any pecuniary harm. Q.4. Is Malice/Motive an essential ingredient to constitute tort? Discuss. [L.C. II-94] Will a bad motive render tortuous, an act giving rise merely to damage without legal injury? (a) S was owner of 300 sq. yds. of land in an approved residential colony. MCD approved building plan for 2 1/2 storey building. S in violation of sanction, constructed 3 1/2 storey and on the top of it also constructed a 5,000 litre water storage tank. MCD demolished one storey constructed beyond sanction. S claims damages from MCD pleading malice. Argue the case for MCD. Decide, giving reasons. Give judicial precedents. [D.U.-2008] (b) X had a piece of land in an approved residential colony. He constructed a residential house on it, though in conformity with the Building Bye-Laws but without getting the building Page 33 Introduction: Definition Nature & Scope plan sanctioned. The building after due show cause notice was demolished. X sues the MCD claiming damages. He pleaded mala fide against the Commissioner. Argue the case for and against and then decide, giving reasons. [C.L.C.-92/95] A.4. Mental Element in Tortious Liability Unlike criminal law, where mens rea or guilty mind is an important factor to determine a crime, in a tort, the state of mind of a person is not so important, and in fact irrelevant, except in certain cases (because unlike criminal law, the focus in the law of torts is not on punishing the wrongdoer, but vindicating the rights of the injured person). The term ‘malice’ has been used in two different senses: (a) Malice in law, and, (b) Malice in fact. Malice in Law- In its legal sense, the term ‘malice’ means “a wrongful act done intentionally without just cause or excuse.” It is an ‘implied malice’ which the law infers from the circumstances of the case. In Shearer v Shields (1914) A.C. 808, it was observed that a person who inflicted an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of mind is concerned he acts ignorantly and in that sense innocently. Thus, malice in law does not mean a bad