Law of Torts

Introduction and Principles of Liability in Tort

a. Definition of Tort

The word “Tort” originates from “Tortum,” meaning “to twist”. This refers to the twisted conduct of the wrong-doer (defendant) causing a civil wrong or legal injury to the plaintiff, for which the courts offer a remedy.

Tortious liability is defined by Winfield as arising from a breach of duty fixed by law.

1. The duty is owed towards persons generally (in rem).
2. The breach is remedied by an action for unliquidated damages (the amount fixed by the court).
3. Torts are civil wrongs, but not all civil wrongs are torts.

b. Development of Law of Torts

Tort law is a fundamental component of the legal system, aiming to rectify civil wrongs and provide compensation. The body of law dealing with torts is continuously expanding due to modern challenges stemming from scientific and technological advancements. The concept of duty of care is foundational in tort law globally.

c. Distinction between Law of Tort, Contract, Quasi-contract and Crime

d. Constituents of Tort: Injuria sine damnum, Damnum sine injuria

e. Justification in Tort (General Defenses)

By pleading general defenses, the defendant can escape accountability, even if the elements of a specific tort are established.

Volenti non-fit Injuria (A willing person is not wrong)

If a person consents to the infliction of harm, they cannot claim a remedy. Consent may be express (e.g., going to a doctor for a blood test) or implied (e.g., accepting the inherent risks of a fast-paced game like car racing). The consent must be to the legal risk, not just the physical risk.

• Case Laws:
  • Hall vs. Brooklands Auto Racing Club (1933): Plaintiff injured by a collision during a race; the risk was reasonably foreseeable, and the defendant was held not liable.
  • Padmavathi and Ors. vs. Dugganaika and Ors. (1974): Two strangers voluntarily took a lift in a jeep that toppled due to a mechanical defect; the court held the driver/owner not liable, as the accident was not reasonably foreseeable.
  • Lakshmi Rajan vs. Malar Hospital Ltd. and Anr. (1993): Doctor removed the plaintiff’s uterus during a breast lump surgery; held liable because consent was specific to the lump, not the uterus.
• Exceptions (where the defense is rejected): Knowledge of the risk is not equivalent to consent (Scienti non volenti non fit injuria) (Smith V. Baker); consent obtained by fraud (R vs. Williams); or in Rescue cases (Haynes V. Harwood).

Necessity

Intentional damage is permissible if the action is taken to prevent larger damage, provided the interference is reasonably necessary.

• Case Laws: Kirk vs. Gregory (1876): Moving a deceased person’s jewelry was held not reasonably necessary. Cope vs. Sharpe: Granted the defense where D entered P’s property to prevent a fire from spreading to adjoining land.

Plaintiff’s default (Plaintiff, the wrongdoer)

A plaintiff committing an illegal act generally cannot file a suit against the defendant (Ex turpi causa non oritur actio).

• Case Law: Pitts vs. Hunt (1991): Pillion passenger encouraged the driver to drive negligently; damages were refused.

Act of God (Vis Major)

The injury must be directly due to extraordinary natural causes, involving no human intervention, which no human foresight could visualize.

• Case Laws:
  • Nichols V. Marsland: Defendant’s artificial lake burst due to extraordinary rainfall; D was held not liable.
  • Greenock Corporation V. Caledonian Railways: Deviation of a natural stream before the rainfall was considered human intervention, negating the defense.
  • Famous Indian Case: R.R.N. Ramalinga Nadar vs. V. Narayan Reddiar (1970): Robbery by an unruly mob during goods transportation was held not to constitute an Act of God, as it was not irresistible, and D should have taken reasonable steps.
  • Famous Indian Case: Kallulal and Anr. vs. Hemchand and Ors. (1957): Madhya Pradesh High Court rejected the defense when a wall collapsed during the rainy season, holding that rainfall of that magnitude was not so extraordinary as to constitute an Act of God.

Inevitable accidents

An accident that occurs despite the defendant taking all reasonable care. It is not avoidable by precautions a reasonable man could be expected to take.

• Case Laws: Holmes vs. Mather: Defendant’s servant injured P after horses were alarmed by a barking dog, despite reasonable care; ruled an inevitable accident. Brown v. Kendal (1850): Defendant accidentally struck plaintiff in the eye while separating fighting dogs; acquitted as it was inevitable.

Private defense

Permissible use of reasonable force to protect one’s person or property. The threat must be immediate and the force necessary.

• Case Law: Bird vs. Holbrook: Defendant liable for setting up spring guns without warning; denied defense as posting a notice was essential.

Specific Torts-I

a. Negligence

Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff (Winfield). It is the failure to exercise a standard of care which a reasonable man should have exercised.

Essentials of Negligence:

1. Duty of Care: A legal duty owed by the defendant towards the plaintiff.
   • Case Law: Donoghue v. Stevenson (1932): Established the “neighbour principle”: duty is owed to persons so closely and directly affected by one’s act that they ought reasonably to be held in contemplation.
   • Case Law: Bourhill v. Young (1943): Motorcyclist owed no duty to a woman who suffered shock upon hearing the distant collision; claim failed.
2. Breach of Duty: The defendant failed to exercise the degree of care that a “reasonable man” would exercise under the circumstances.
   • Case Law: Roe V. Minister of Health: Doctor not liable for injury caused by an invisible crack in an ampoule, as he took all care a prudent surgeon would, and the risk was not foreseeable based on existing knowledge.
   • Famous Indian Case: Municipal Corporation of Delhi v. Subhagvanti (AIR 1966): MCD was held liable when an 80-year-old clock tower collapsed, as they had breached their duty to maintain and repair it.
3. Causation: The breach must be the actual cause (but-for test) and the proximate cause (legal cause, producing foreseeable consequences) of the harm.
   • Case Law: Palsgraf vs Long Island Railroad Co (1928): Railway employees were not liable for injuries caused by falling scales due to a distant explosion, as the resultant injury was not foreseeable (proximate cause lacking).
4. Consequential Harm (Damage): The failure to exercise reasonable care must result in damages (bodily harm, financial loss, etc.).

Res Ipsa Loquitur (The thing itself speaks) This doctrine allows the court to presume negligence, shifting the burden of proof to the defendant, if the event “tells its own story”.

• Case Law: Byrne V. Boadle (1863): A barrel of flour rolled out of a warehouse window and fell on the plaintiff; the facts implied negligence.
• Famous Indian Case: State of Punjab V. Modern Cultivators: State held liable when a canal under its care breached and flooded fields.

b. Nervous Shock

Nervous Shock is a personal injury to the nerve and brain structure of the body. Actionable nervous shock requires the defendant to owe a duty to the plaintiff, and the plaintiff must be within the area of potential danger.

• Case Law: Wilkinson V. Downton: Defendant liable for shock caused by falsely reporting the plaintiff’s husband was smashed in an accident.

c. Nuisance

Nuisance is the unlawful interference with a person’s use or enjoyment of land or some right connected with it (Winfield).

• Private Nuisance: A tort only, requiring unlawful interference causing physical discomfort or property damage.
• Public Nuisance: A crime, affecting the community at large. A private individual must prove special damage to recover compensation.
• Case Law: Robinson V. Kilvert: D was not liable when heat from his business spoiled P’s sensitive paper; no liability for abnormal sensitiveness of property.
• Case Law: Christie V. Davey: D maliciously interfered with his neighbor’s music lessons; malice was a factor in granting an injunction against D.

d. False Imprisonment and Malicious Prosecution

• False Imprisonment (FI): Infliction of bodily restraint unauthorized by law. Knowledge of imprisonment is not essential (Merrings Case), but the restraint must be complete (Bird V. Jones).
• Malicious Prosecution (MP): Institution of a malicious case against another without reasonable or probable cause. Plaintiff must prove prosecution ended in acquittal/discharge, lack of probable cause, and malice. Dr. Abarth V. North Eastern Railways: D was held not liable because D relied on information and had honestly believed in the case, thus lacking malice.

e. Judicial and Quasi-Judicial Acts

Statements made during Judicial proceedings are protected by absolute privilege in defamation claims.

f. Parental and Quasi-Parental authority

This falls under the defense of Force used under authority, allowing parents, guardians, or ship captains to use reasonable and necessary force to “correct” those under their control.

Specific Torts-II

a. Vicarious Liability

Vicarious Liability holds one person liable for the tortious acts of another due to certain relationships, such as Master and Servant. The master is liable if the servant’s acts are done within the course of his employment. This includes doing an authorized act in an unauthorized manner.

• Case Law: Century Insurance Co. V. Northern Ireland Road Transport: Driver was negligent (striking a match while transferring petrol); master held liable as the act was done in the course of employment.
• Case Law: Limpus V. London General Omni -Bus Company: Driver violated instructions not to race, causing a collision; master held liable because this was an unauthorized manner of performing an authorized act.

b. Doctrine of Sovereign Immunity (Liability of the State)

In India, the State may sue and be sued under Art. 300 of the Constitution. The State is vicariously liable for tortious acts of its servants done during the course of their employment, provided the function is not Sovereign.

• Case Laws (Famous Indian Cases):
  • Peninsular and oriental Steam Navigation Co. V. Secretary of State (1861): State held liable because maintenance of a dockyard was a non-sovereign function.
  • State of Rajastan V. Mrs. Vidyavati: State held liable for the negligent driving of a government jeep by a government driver for office use.
  • Kasturilal v. State of U.P.: Supreme Court held the State was not liable for gold stolen from police custody, as the police were exercising a ‘Sovereign function’ in keeping the property.

c. Strict and Absolute Liability

Strict Liability (Rule in Rylands V Fletcher)

Strict liability holds a party liable for damages caused by their actions or products, irrespective of intent or fault. The rule applies when a person brings onto his land and keeps there anything likely to do mischief, if it escapes, they must keep it in at their peril, and are answerable for all resulting damage.

• Core Elements: The activity/product must present an Inherent Hazard (high potential for harm); there must be Causation (direct link); and the Direct Link must not be broken by intervening causes.
• Case Law: Rylands V. Fletcher (1868): Defendant liable when a reservoir burst and flooded neighboring mines, even though he was not personally negligent.
• Exceptions (Defenses): Consent of the plaintiff; Common Benefit; Act of Stranger; Statutory authority; Act of God; or Default of the Plaintiff.

Absolute Liability

The provided sources do not explicitly define the elements or consequences of Absolute Liability as distinct from Strict Liability.

d. Defamation

Defamation is the publication of a statement reflecting on a person’s reputation that tends to lower them in the estimation of right-thinking members of society.

Remedies under the Law of Torts

a. Remedies under Law of Torts

Remedies include Judicial Remedies (Damages, Injunctions) and Extra-Judicial Remedies.

• Damages: Monetary compensation (unliquidated damages).
  • Nominal Damages: Awarded to establish a right (e.g., Assault).
  • Exemplary Damages: High damages awarded to punish the wrongdoer and deter similar conduct (e.g., attack on liberty or refusal by a bank to honour a cheque).
  • Contemptuous Damages: Small amount awarded when the court finds the matter trifling and that the plaintiff should not have sued.
• Extra-Judicial Remedies:
  • Distress Damage Feasant: Detaining an animal or chattel that is trespassing and causing damage until compensation is paid.
  • Abatement of Nuisance: Removal of the nuisance (e.g., cutting off overhanging branches).

b. Remoteness of Damage

The damage must be the direct and natural result (proximate cause) of the defendant’s act. The principle is In jure non remota causae proxima spectatur (In law, the immediate, not the remote cause, is considered).

• Test of Reasonable Foresight (Modern Rule): The defendant is only liable for those consequences that could have been foreseen by a reasonable man. This test superseded the “directness” test of Re Polemis.
• Case Law: The Wagon Mound Case (1960): The defendant’s vessel spilled oil, leading to a fire on the plaintiff’s wharf two days later. Held: The fire damage was not reasonably foreseeable as a consequence of the oil spill at that time, establishing the reasonable foresight test.
• Novus actus interveniens (New act intervening): The defendant is generally not liable if an intervening act breaks the direct chain of consequence.

Contributory Negligence

This is a defense where the plaintiff contributed their own negligence to the injury. The old rule applied the principle of “last opportunity”.

• Case Law: Davies V. Mann: D was held liable for killing P’s donkey on the highway because D had the last opportunity to avoid the accident.
• Comparative Fault: Modern systems (such as those in the US) use comparative fault rules (Pure Comparative or Modified Comparative) to reduce recovery based on the plaintiff’s percentage of fault, rather than barring recovery completely, unless the plaintiff’s fault exceeds a certain threshold (e.g., 50% or 51%).

c. Occupier’s Liability for Dangerous Premises

The duty of the occupier depends on the visitor’s status:

• Invitee: Enters on business with a common interest (e.g., customer). Occupier must prevent damage from unusual danger.
• Licencee: Enters for their own purpose under consent (e.g., guest). Occupier must warn of any concealed danger or trap. A licensee “takes just as he finds the premises”.
• Trespasser: Wrongful entry. Occupier is under no duty to take care; liable only for willful acts causing harm.