Law of Torts – Theory

Delhi Law Academy

What do you mean by ‘tort’?

Tort means wrong. But every wrong is not a tort. A wrong may be a civil wrong or a criminal wrong. Tort is a civil wrong or private wrong i.e., wrong against private individuals. Criminal law deals with offences against the state. (Criminal wrongs are taken care of by the criminal laws, e.g., Indian Penal Code, Criminal Procedure Code, etc.) Law of torts deals with civil wrongs or private wrongs which are wrong against private parties. Further, a civil wrong is
redressed or compensated by damages or compensation. Such damages or compensation may be liquidated or fixed in advance by the parties themselves, e.g. in the case of a breach of contract. In torts, such damages are unliquidated i.e. not predetermined or fixed in advance. Such damages are decided by the court.

Thus, a tort may be defined as a civil wrong redressible with unliquidated damages.

Essentials of a tort
Generally, a tort consists of some act or omission done by the defendant or tortfeasor or wrongdoer, without reasonable cause, which has caused some harm or injury to the plaintiff. The essentials to constitute a tort are, therefore—
1. A wrongful act or omission done by defendant.
2. Some damage or harm or injury suffered by plaintiff.
3. Some legal remedy is there for causing such injury.

Two Maxims
Two important maxims which help in determining liability under the Law of torts are—
1. Damnum sine injuria.
2. Injuria sine damnum.

1. Damnum sine injuria: ‘Damnum’ means damage or harm. Sine means without and Injuria means injury or legal injury i.e., infringement of some legal right. Thus, First maxim ‘Damnum Sine Injuria‘ means damage without injury. It means, in a given case a person may have suffered some damage or harm but no injury or violation of legal right is caused to him. In such a case, no action shall lie under the law of torts. Because, causing damage or harm, however
substantial it may be, is not actionable unless there is ‘injuria’ or infringement of some legal right of the plaintiff. Thus, if I own a sweet shop and you open a similar sweet shop in adjacent building, 1 may suffer big damage or harm or loss due to decreased customers. But I cannot sue you in torts as there is no ‘injuria’ or violation of my legal right.

Example Case: Where a schoolmaster set up a rival school in the neighbourhood of the plaintiff forcing them to reduce their fees from 40 pence to 12 pence per student and thereby causing big monetary loss to him, the court held that the plaintiff had no remedy for loss suffered by them because defendant is exercising his own legal right and no injuria or infrequent of legal right of defendant has taken place.

2. Injuria since damnum: means injury without damages. It means plaintiff has suffered injury. His legal right is infringed or violated. But no damage or harm is caused to him. Still plaintiff can sue tort because law of tort protects a person from injuria i.e. legal injury or infringement of some legal right. Any harm is caused or not is immaterial.

Example Case: In celebrated case of Ashby v. White, plaintiff was a qualified voter at a parliamentary election. Defendant, a Returning officer wrongfully refvsed to tender his vote. The candidate for whom plaintiff wanted to vote won by a big margin. Plaintiff suffered no harm or loss or damage but since his legal right was infringed, the defendant was held liable. Plaintiff was awarded damages.

Principle: No action lies for mere damage or loss, however substantial, caused by an act which does not infringe some legal right of a person.
Facts: A, B, C, D were shipowners who shipped tea from China to England, combined together to drive F, a rival shipowner, out of the trade by offering special concessions to customers who would deal with them to the exclusion of F. Can F who suffered loss claim compensation?
(a) Yes. A, B, C, D had adopted unlawful means.
(b) No. A, B, C, D had done nothing unlawful.
(c) Yes. Because F suffered loss.
(d) None of the above.

The answer is (b).
Reasoning: Though F suffered loss but his legal rights were not violated by A, B, C, D. There is no element of illegality in the fact of combination among the defendants.

Principle: If there is infringement of legal right of a person, he can sue under torts for compensation even if he has not suffered any harm or loss.
Facts: Mr. Rana, a bank manager refused to honour a cheque presented by Harish, a customer, though he had sufficient funds in his account. Can Harish sue Rana under torts and claim compensation?
(a) Yes. Rana has violated legal right of Harish.
(b) No. Since the entire amount of Harish in is bank account was intact.
(c) Rana can plead extraordinary situation in the bank at that point of time due to which he could not honour the cheque.

The answer is (a).
Reasoning: Though Harish did not suffer any loss but his legal rights were violated.

General Defences in Tort The Principle of ‘ Volenti Non Fit Injuria
It is a well settled principle of law that no man can sue for a tort for which he had consented either expressly or impliedly. This principle has been summarised in the Latin Maxim “ Volenti Non Fit Injuria” which means “Voluntarily suffered injury is not fit for action”. In other words, no breach of a legal right is committed against one who is a willing party, or harm suffered voluntarily does not constitute an injury and is not actionable. Thus, there are two basic ingredients in constituting the aforesaid maxim which the defendant must prove in order to justify his
defence. They are:
(i) The plaintiff had the knowledge of risk; and
(ii) The plaintiff with his free consent ran the risk of harm.

Principle: No legal remedy exists for an injury caused by an act, for which one has consented.
Facts: Vijay, a cricket enthusiast, purchases a ticket to watch the one day International Cricket Match between India and Australia, organized by the Board of Control for Cricket in India (BCCI). As he is absorbed in watching the exploits jof Sachin Tendulkar, a ball struck for a six by the latter, hits Vijay on his body and injures him. Vijay sues BCCI for reimbursement of the medical bill he paid for treatment of the injury.
(a) Vijay should be compensated as he purchased the ticket for entertainment and nor for getting injured.
(b) Vijay would lose as he voluntarily exposed himself to the risk.
(c) BCCI is liable as it did not ensure that the spectators were protected from the risks of such injuries.

The answer is (b).
Reasoning: Injuries received in the course of a lawful game or sport are not actionable. Since, harm suffered voluntarily does not constitute an injury it is not actionable.

Exception to the maxim: Rescue Cases
The defence of volenti non fit injuria does not apply to rescue cases. When a person voluntarily undertakes a risk, out of a sense of legal or moral duty, to rescue somebody from imminent danger, and sustains an injury, he can recover damages in tort from the person due to whom the situation arose.

Principle: Damages cannot be claimed against risk to which consent has been given. The principle does not apply to rescue cases.
Facts: X and Y brought tickets to have a ringside view of a football match. During the course of the game a hard kick from one of the players caused the ball to hit X on his nose, causing bleeding and nausea. After half time the organizers allowed entry of more spectators than the seating capacity of the stadium. In the resulting stampede R and S who were watching the match since the beginning got injured.
Five minutes before close of play, a part of the stadium roof broke loose. Y rushed to save children sitting beneath the roof and in the process injured herself. In separate actions filed by the injured persons. Decide.
(a) Y shall not be able to recover as she consented to the risk of the falling roof.
(b) X shall be able to recover as the organisers failed to take precautions against the flying ball.
(c) X shall not be able to recover as by purchasing a ringside seat in a football game he consented to all the attendant risks of such watching.

The answer is (c).
Reasoning: Since X consented to the risk by buying tickets for ringside view of the match he cannot claim compensation.

Principle: When a person consents to the infliction of some harm upon himself, he has no remedy in tort.
Facts: The plaintiff was at a motor car race being held on a track owned by the company. During the race there was a collision between two cars one of which was thrown among spectator thereby injuring the plaintiff. Plaintiff filed a suit against the company.
(a) Company is liable.
(b) Company is not liable because plaintiff impliedly took the risk of injury.
(c) Company is not liable because it owned no duty of care to the plaintiff.
The answer is (b).
Reasoning: The plaintiff being at the motor car race impliedly consented to the risk of injury so cannot claim compensation.

Legal Principle: There is no liability in tort in cases of inevitable accidents.
Facts: Two strangers took lift in a jeep. After sometime one of the bolt fixing the right front wheel of the jeep to the axel gave way. The jeep toppled and the two strangers got serious injuries resulting in death of one of the stranger. The living stranger filed a suit against jeep owner for compensation.
(a) Jeep owner is liable.
(b) Jeep owner is not liable because it is an inevitable accident and defect in jeep was not apparent.
The answer is (b).
Reasoning: Accident caused was inevitable and so there shall be no claim for compensation.

Vicarious Liability
General principle is that a person should be held responsible for his own fault. But there are circumstances where liability attaches to a person for the wrongs committed by others. The maxim “quifacit per alium facit per se ” provides the general principle of vicarious liability . It means he who acts through another acts himself. Vicarious liability arises in case of some relationships. These relations are:
(i) Principal and agent;
(ii) Partners;
(iii) Master and servant; and
(iv) Independent contractor.

Principal and Agent
A principal is vicariously liable for the tort of his agent committed within the course of his authority. A principal acts through his agents. Therefore, the acts of the agent are the acts of principal himself, provided the acts done by the agent are in the ordinary course of business or as per the agreement of agency. Thus, if a tort is committed by the agent outside the ordinary course of agency and without principal’s authority the principal cannot be held liable.

Every partner is liable jointly with all the other partners and also in individual capacity for the acts of the firm or any partner representing the firm. So, every partner is an agent of all other partners and his act binds all if it is done in the course of partnership business.

Master and Servant
The liability of the master for the tort committed by his servant is based on the maxim “Respondeat Superior”, which means, superior is responsible, or let the principal be liable. The master or employer is liable for the acts of his servant when the act is done during the course of employment. A servant is a person who acts under the direct control and supervision of his master or employer. Master is not liable for any act of servant which was not done in course of employment.

Independent Contractor
If the tort is committed or an independent contractor providing his services to an employer, generally the employer shall not be liable for the torts of independent contractor. An independent contractor is a person who acts independently and not under the direct control of the employer.

Principle: A master is liable for the wrongs committed by the servant in the course of his employment.
Facts: Obalesh works as a clerk in a pharmaceutical company Bio-Pharma Ltd. He is required to take stock of the goods supplied and maintain the accounts of the company. Ramachandra, a friend of Obalesh, from the neighbouring village, came to meet Obalesh in the office. Since Ramachandra did not have any other acquaintance in the city be gave Rs. 10,000/-, he had with him, to Obalesh for safe keeping. When Ramachandra returned to the office the next morning to collect the money from Obalesh, he learnt that the latter had disappeared with his money. Ramachandra brings a legal action against Bio-Pharma Ltd. for the recovery of the money.
(a) Bio-Pharma Ltd., would be liable, since Obalesh received the money while being jn the office.
(b) Bio-Pharma Ltd., would not be liable, as Ramachandra had no business transactions with the company.
(c) Bio-Pharma Ltd., would not be liable, as safekeeping of money was not part of Obalesh’s duty.

The answer is (c).
Reasoning: Bio-Pharma Ltd. would not be liable as safe keeping of money by Obalesh was not a part of duty is course of his employment.

Principal: An employer shall be liable to the injuries caused to his employee by the negligence of a fellow employee in the course of employment.
Facts: Kannappa and Veerappa were two employees working in the textile factory of Gokuldas. One day, Kannappa came to the factory in an inebriated stage and his hands were not steady while operating the machine. As a result, Veerappa who just happened to go near the machine for some work got injured. He filed a suit against Gokuldas for compensation?
(a) Gokuldas will be liable, because Veerappa was injured by Kannappa’s act in the course of employment.
(b) Gokuldas will not be liable, because he was not responsible for Kannappa’s inebriated condition.
(c) Gokuldas will not be liable, because Veerappa himself was not been careful while going near Kannappa.

The answer is (a).
Reasoning: Gokuldas is liable for the negligent act of his servant done during the course of employment.

Principle: A master is liable for the wrongful acts of his servants committed in the course of employment.
Facts: Lakshmi was a housewife who opened an account with Maharashtra Bank, whereunder she agreed to deposit Rs. 300/- every month in the Bank. Krishna, an agent of the bank used to come every month, to collect the amount and deposit in the Bank.

The Bank used to give a small commission to Krishna for the money deposited. It was discovered one day that Krishna had not deposited the amount for more than three months and had disappeared with the money. Lakshmi filed a suit against Maharashtra Bank.
(a) Maharashtra Bank would not be liable because Krishna was not its employee.
(b) Maharashtra Bank would be liable because Krishna was paid commission by the bank for doing work on its behalf.
(c) Maharashtra Bank would not be liable as it was Lakshmi’s responsibility to check her passbook regularly,

The answer is (b).
Reasoning: Maharashtra Bank would be liable as Krishna had committed wrongful act in course of his employment under the bank.

Principle: As given above.
Facts: CAB Company was a well-known taxi company whose taxis always bore a special emblem easily recognised by the people. The company had a firm policy prohibiting its employees from plying their taxis outside their working schedule. Harish was a driver with this company. One day while he was getting back to the garage after completing his day’s duty, Amit stopped him and requested for taxi service whose place happened to be on the way to garage. Due to Harish’s negligence, the taxi collided against a wall and Amit was badly injured. He filed a suit against CAB Company.
(a) The company would not be liable for the act of Harish, done in clear violation of its Regulations.
(b) The company would be liable since Harish was its employee.
(c) The company would be liable, since Amit’s believed that he had hired a taxi belonging to CAB Company.

The answer is (c).
Reasoning: Taxi company is liable since Harish was its employee and act was during the course of employment i.e. plying taxi on hire. The option (c) also appears to be close but it is the relationship of employer and employee which causes vicarious liability.

Negligence implies absence of intention to cause the harm complained of. It means carelessness or unreasonable conduct. But merely unreasonable conduct without damage is not actionable though it may be a punishable offence. Such conduct followed by harm to another gives rise to liability for negligence. The essential elements to constitute a tort of negligence are as follows:—
(a) Defendant owed a duty of care to the plaintiff.
(b) He made a breach of such duty.
(c) Plaintiff suffered damage in consequence thereof.
‘Duty of Care’ means duty to take care. It means a person shall behave reasonably, be careful and dutiful as a reasonable man should be in like circumstances.
The concept of ‘duty of care’ depends upon the facts and circumstances of each case. For example: a doctor owing a duty of care to his patient, an employer to his employee and a resident to his neighbour. Reasonableness is the key to ascertain duty of care in each case.
‘Breach of duty’ to take care means the defendant has not observed due care which is required in a particular situation. Such breach of duty is essential to be proved to succeed in an action for negligence.
‘Damage’ is third essential ingredient to constitute a tort of negligence. Even if the defendant owes a duty of care to the plaintiff and makes a breach of such duty, no action shall lie for negligence, if no damage
is caused.

Principle: The occupier of a premise owes a duty of care to all his invitees and visitors.
Facts: Suresh was a owner of big bungalow with a compound wall. He was constructing a swimming pool in his compound. Since the work was incomplete, he asked his workers to cover it with gunny bags. Next morning, the post-man who came inside to deliver a telegram fell into his unfinished pool. The postman filed a suit against Suresh claiming compensation.
(a) Suresh is not liable because he did not invite the postman to his house.
(b) Suresh is not liable because it was for the postman to take care of himself.
(c) Suresh is liable because the postman came into the premises in the course of his duty.

The answer is (c).
Reasoning: Suresh was liable as he owed a duty of care to all his invites and genuine visitors.

Principle: An occupier is liable to a trespasser in respect of some’ wilful act intended to cause harm or done with reckless disregard.
Facts: A farm house belonging to Thotappa had got its fence electrified. The object was to ensure that the farm was secured from wild animals in the vicinity. There was a clear warning about the electrified fencing. A cricket ball, hit from a nearby playground, fell within the farm. Muthanna, the coach conducting the summer camp for school going children there, attempted to jump the fence to retrieve the ball, got injured on account of the electric shock. Muthanna files a suit against Thotappa for relief.
(a) Thotappa will not be liable, because Muthanna was a trespasser.
(b) Thotappa will not be liable, because he had given sufficient warning about electric fence.
(c) Thotappa will be liable, because he must have taken note of the adjacent playground.

The answer is (c)
Reasoning: Occupier of the premises owes duty to take such reasonable care to see that the entrant does not suffer injury on the premises by reasons of the danger concerned.

Principle: A careless person becomes liable for his negligence when he owes a duty of care to others.
Facts: As the bus was leaving the platform, Basappa rushed and boarded the bus keeping the door open. Beerappa, who was standing at the edge of the platform, was hit by the door of the moving bus and injured. Beerappa takes Basappa to court demanding monetary compensation.
(a) Basappa is liable to Beerappa for not having taken care to close the door of the moving bus.
(b) Basappa is not liable to Beerappa, as it was the duty of the conductor of the bus to close the door.
(c) Basappa is not liable to Beerappa, as it was the duty of the latter to take sufficient care, while standing on the platform, as not to expose oneself to such accidental harm.

The answer is (a).
Reasoning: Bassappa owing legal duty towards others should have closed the door.

Legal Principle: A careless person becomes liable for his negligence when he owes a duty to take care of other.
Facts: Manjit Kaur, a widow whose husband had been killed in motor accident, filed an appeal through her counsel claiming enhanced compensation. The case remained on the daily list of court for two weeks and then it has been dismissed on default. The counsel of Manjit Kaur is
(a) Liable to Manjit Kaur for not having taken care to inquire the daily list.
(b) Liable to Manjit Kaur it was duty of court of inform Manjit Kaur.
(c) Not liable because it was duty of Manjit Kaur to take care.
(d) Both (b) and (c) are correct.

The answer is (a).
Reasoning: The counsel is under a legal duty to take care of his client’s case.

Principle: A principle shall be liable for any damage caused by the agent in the course of employment. The scope of an agent authority is conditioned not only by the power conferred by the principal, but by the reasonable public perception of such authority.
Facts: Omega is a well-known hospital, offering specialised facilities. When a patient comes to the hospital, the general physician examines him and refers him to the specialist concerned. The brochure of hospital describes all the doctors as Omega’s doctors. But in fact all of them including the general physician are independent people, using Omega’s facilities under contractual arrangements.
Gokul, having gone through the brochure, came to the hospital seeking a cure for a rare kind of disease. He was admitted into the hospital and operated upon for some heart problem. Among the various documents he signed at the time of admission, there was a form whereunder Omega disclaimed liability for the negligence of any doctor. Gokul signed all the documents mechanically as most of the patients tend to do under those agonizing circumstances. Due to the negligence of operating surgeon Gokul died. When his kith and kin filed a suit against Omega alleging negligence, Omega resisted the claim on the basis of document, signed by Gokul.
(a) Omega shall not be liable, since the contract signed by Gokul, exempted it from any liability.
(b) Omega shall not be liable, since it is not really in a position to control the specialist surgeon in the course of a complicated operation.
(c) Omega shall be liable, because Gokul was drawn into the hospital by its brochure, describing the various facilities available.

The answer is (c).
Reasoning: Since the brochure described doctors as Omega’s doctors and operation which failed due to negligence was conducted during the course of emplayment, the hospital will be liable.

Defences to Negligence
Apart from general defences available against torts, Contributory negligence acts as a good defence in torts of negligence. It means plaintiff by his own negligence contributes to the act causing damage to him. The rule is that if a person suffers damages due to his own negligent act, he cannot sue the other negligent person for damages.

Principle: “If, as a result of carelessness, one injures another, he is legally liable to the injured victim for resulting damages, unless the victim’s own carelessness also contributes to causing the accident”.
Facts: ‘A’ carelessly left an iron pole protruding across a public road. 200 meters from that spot was a traffic signal indicating the speed limit to be at 30 kmph. ‘B’ riding a scooter at 60 kmph, noticed the protrusion from a distance, but still could not avoid it, collided with the pole and was injured. In an action by ‘B’ against ‘A’
(a) ‘B’ will succeed because ‘A’ was careless.
(b) ‘B’ will succeed because ‘A’ could have avoided the mishap by putting up a warning.
(c) ‘B’ will lose as he was driving very fast.
(d) ‘B’ will lose for some other reason.
The answer is (c).
Reasoning: B has contributed towards the act of negligence by driving the scooter at much above the speed limit.

The word ‘nuisance’ in its legal sense means simply ‘annoyance’ or harm; and indeed the element of unlawful ‘annoyance’ is the only thing common to all nuisances. Therefore, ‘nuisance’ means an unlawful interference with a person’s use or enjoyment of land. It includes interference with comfort, health and safety of the other. ‘Nuisance’ has been divided into two kinds:
(i) Public Nuisance; and
(ii) Private Nuisance.
Public Nuisance is interference with some public right, whereas, Private Nuisance is a civil wrong or tort. In case of every nuisance, following elements have to be proved by the plaintiff:
(a) Undue or unreasonable interference;
(b) Interference must be with the use or enjoyment of land; and
(c) Damage.

Principle: The owner of immovable property is entitled to the column of airspace above the surface. However, the owner’s right to air and space above his land is restricted to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it.
Facts: Galaxy Cable TV Network Company is providing cable connections to their customers. One of the cable passes over the house of Mr. Vasanth Bhat. He is not a customer of the Network Company. The cable is neither attached to his house nor to any projection thereof. It is at a distance of 20 feet above the terrace of Mr. Bhat’s two storeyed house. Because of the cable Mr. Bhat’s son Sachin is unable to fly a kit from the terrace. Mr. Bhat requested the Network Company to change the position of the cable. But the company did not bother to change it. But the company did not bother to change it. One evening Mr. Bhat cut the cable and cleared the airspace above his house.
The Network company suffered a loss of about Rs. 1000/-. They bring a legal action against Mr. Bhat for recovery of loss suffered.
(a) The Network Company will succeed because the cable was not interfering with the ordinary use and enjoyment of Mr. Bhat’s property.
(b) The Network Company will not succeed because Mr. Bhat has every right to ensure proper enjoyment of his property by removing objects causing trespass in the air above his property to a reasonable extent.
(c) The Network Company will succeed because laying cables is widely practised in all cities like electricity and telephone wires.

The answer is (a).
Reasoning: Owner’s right to air and space above his immovable property is restricted only upto reasonable height necessary for ordinary use and enjoyment of his land.

Principle: Everybody is under a legal obligation to take reasonable care to avoid act or omission which he can foresee would injure his neighbour. The neighbour for this purpose is any person whom he should have in his mind as likely to be affected by his act.
Facts: Ram, while rushing to board a moving train, pushed Shyam who was walking along with a heavy package, containing fire crackers. As a result, the package slipped from his hand and crackers exploded injuring a boy standing closely. A suit was filed against Ram, by the boy, claiming damages.
(a) Ram is not liable, because he did not knowanything about the contents of the package.
(b) Ram is not liable, because Shyam should not have carried such a package in a crowded place like Railway Station.
(c) Ram is liable, because Ram is under an obligation not to push Shyam.

The answer is (a).
Reasoning: Ram could be liable only for the acts which could be reasonable for seen due to push caused by him.

Nervous Shock
Nervous shock is a shock sustained through the medium of eye or ear without direct contact. In other words, the defendant’s negligence would make him liable if an injury by nervous shock is caused to a man when he could have reasonably foreseen to have been affected at the scene of serious accident. Where the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury by nervous shock, then the duty of care is established and the defendant will be liable for the injury to the plaintiff.

Principle: The legal principle is the same as above.
Fact: Krishnan, while driving his car at a high speed in a crowded road, knocked down a cyclist. The cyclist died on the spot with a lot of blood spilling around. Lakshmi, a pregnant woman passing by on seeing the accident, suffered from nervous shock, leading to abortion. Lakshmi filed a suit against Krishnan claiming damages.
(a) Krishnan will be liable, because he owed a duty of reasonable care to everybody on the road including Lakshmi.
(b) Krishnan will not be liable, because he could not have foreseen Lakshmi suffering from nervous shock as a result of his act.
(c) Krishnan will be liable, to Lakshmi because he failed to drive carefully.
The answer is (b).
Reasoning: Krishnan cannot reasonably foresee the nervous shock suffered by Lakshmi. He is liable only towards the cyclist or his dependents but not Lakshmi.

Defamation is the publication of a statement which tend to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid that person. Defamation of a person may be in writing or in some permanent form or it may be by spoken words or gesture. The former is called ‘libel’ and the latter is called ‘slander’. The essentials of defamation in general are:
(a) The statement must be false and defamatory;
(b) It must be published; and
(c) It must refer to the plaintiff.

(i) If a person makes a statement that lowers the reputation of another person in the eyes of right thinking people, then it is defamation.
(ii) The person whose reputation is affected can sue the defendant and recover damages.
Facts: Ram told Sita “You are a thief. You stole my heart”. Sita was furious and she felt that she was defamed.
(a) Rama has defamed Sita and hence he is liable to pay damages.
(b) Rama is liable to pay as Sita’s reputation was lowered in the eyes of right thinking people.
(c) Rama is not responsible, as right thinking people will not mistake this statement.
(d) None of the above answers is correct.
The answer is (c).
Reasoning: Reputation of Sita by this statement is not lowered in the eyes of right thinking people.