CHAPTER -1

Introduction to Law of Torts

The word “Tort” has been derived from the Latin word “tortum” meaning twisted or crooked or simply
conduct which is not correct.

It is often said that a tort is a wrong which is not a crime, which is not a breach of contract or a breach of
trust. Like all other wrongs, tort is a wrongful act whereby the wrongdoer commits the breach of a legal
right vested in some individual. Tort is a civil wrong, but not all civil wrongs are torts. Thus, generally
speaking, though loosely, those civil wrongs which do not fit in any defined category of civil wrongs are
torts.

Definition of tort:-

Tort is a civil wrong which is redress able by an action for unliquidated damages.

The aforementioned definition highlights two characteristics of torts, namely:

1. Torts are civil wrongs

2. The remedy for torts lies in unliquidated damages.

1. Civil wrongs

Civil wrongs are the wrongs which are petty in nature and everyone has committed at some point of time
in their lives, for example, parking your car in a wrongful manner so as to cause traffic jams, breaking
cameras in your school, etc.

To understand civil wrongs properly; we need to distinguish between civil and criminal wrongs.

Following are the differences between the Civil and Criminal wrongs:

1. Civil wrongs are less grievous in nature in comparison to the criminal wrongs.

2. In the civil wrongs; there is an infringement of the private or civil right of an individual;
whereas the criminal wrongs are breach of public rights which affects the whole society.

3. A civil wrong is committed against an individual; thus, the action is taken against the
particular individual only. Whereas, in case of the criminal wrong, since the aggrieved
party is the society, therefore the action is taken by the representatives of the society i.e.
the government.
 2. Damages

The damages refer to the monetary compensation; paid to the plaintiff for the loss suffered thereby.

3. Unliquidated damages

Damages are also of two kinds: unliquidated and liquidated damages. Liquidated damages are the
damages which can be decided previous to injury. For example, in case of the contracts. Unliquidated
damages are the damages which can’t be decided before the happening of injury. For example, in case of
torts.

ESSENTIAL OF TORTS:

1. Wrongful act or wrongful omissions

Torts can be caused by an act or an omission on the part of the defendant. However, if the act complained
of doesn’t violate legal rights of another person, it is not a tort. Violation of the moral, religious and social
duties doesn’t come under tort.

2. Injury:

Mere act or omission or failure to perform a duty doesn’t consists of a tort, unless it results in some injury
to the person suing; i.e. violation of his legal rights.

#Legal Rights:

Legal rights are those rights which are protected and provided by the law. E.g. it’s your legal right that no
one should disturb you at so if your neighbor plays loud music at odd hours; it’s an example of an injury.

Damage vs damages vs legal rights

Legal injury refers to the violation of the plaintiff’s legal rights whereas the idea of damage
conveys the idea of a mere wrong which isn’t actionable in law. Damages are the monetary
compensation provided to the plaintiff by the defendant for causing the violation of the legal
rights of the plaintiff.

# Injuries sine demon vs. Damno sine injuria

Injuria sine damno:

This means legal injury without any damage; i.e. there is violation of the legal rights, even though the act
of the party causes no harm or damage to the other. In this case, action can be filed and damages can be
claimed.

Ashby v White; wherein the plaintiff was an eligible 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 for won. But it was the violation of the legal rights of
the plaintiff and thus he was entitled to get damages.

Damnum sine injuria:

This means damage without any legal injury i.e. there is no violation of the legal rights but despite that
there is damage or loss to the plaintiff. It is not actionable in the court of law and thus no damages can be
claimed.

In Gloucester grammar school case; the defendant set up a rival school in front of the school of
plaintiff. Because of the competition; the plaintiff school had to reduce its fees, and consequently suffered
major losses. In this case; although damages have been suffered by the plaintiff but since there is no legal
injury caused to the rival school; there shall be no cause or action against the defendants.

3. Legal Remedy

The maxim “ubi jus ibi remedium” i.e. where there is a right, there is a remedy, means that whenever a
right has been violated, the person whose right has been infringed has a remedy against the person so
violating his right.

Torts are a civil wrong for which the remedy is an action for unliquidated damages. Thus, the main action
for a tort is an action for damages. There are other remedies too; but an action for unliquidated damages is
an essential characteristic of remedy for torts.

CHAPTER- 2

General defenses (The general exceptions are spread across Section 76-106 of the Indian Penal code)

The current chapter talks about the exceptions to the basic rule of the tort i.e. if you have violated any
legal right, you are held liable to pay damages.

What are general defenses? (Section 76-106 of the Indian Penal code)
General defenses can be best defined as the exceptions, and are given under(Section 76-106 of the Indian
Penal code) which are generally accepted by the law and practiced all over the world. When the plaintiff
brings an action against the defendant proving that all the essentials of the tort are present; the defendant
is liable for the same. But even in this case, the defendant can avoid his liability by taking the plea of
some defence.

There are two types of defenses:

1. The specific defenses

2. The general defenses

The specific defenses are applicable to some particular wrongs, for example, in case of defamation; the
defenses of fair comment or truth are available.

There are general defenses which can be taken against a number of wrongs. For example, the general
defense of ‘Consent’ may be taken; where the action is for trespass, defamation, false imprisonment or
some other wrong.

The various general defenses are:

1. Volenti non fit injuria or the defence of consent

2. Plaintiff or the wrongdoer

3. Inevitable accident

4. Act of god

5. Private defence (Section 96-106 of the Indian Penal code)

6. Mistake

7. Necessity

8. Statutory authority

1. VOLENTI NON FIT INJURIA:

Volenti non fit injuria, hereinafter as VNFI, is Latin phrase which means, one who takes
risk by himself, can blame others for the same. The logic behind the rule is that since the
person has consented to the infliction of some harm upon himself, he shall have no
remedy for that against anyone else.

Essentials of VNFI:
There are two essentials of VNFI, first that the plaintiff undertook the risk voluntarily and second the
person had the knowledge of the risk.

Voluntarily taking risk:

This means that the plaintiff must have given the consent to the risk at his own free will, without any
fraud or compulsion or under some mistaken impression, such consent does not serve as a good defence.

Moreover the act done by the defendant must be the same for which he has given his consent. Thus, if you
have invited a person to your home, you can’t go the court saying that the person has committed trespass.
But if the visitor goes to the home without any invitation; he has committed trespass.

Consent to suffer the harm may be express or implied

Many a time, the consent may be implied or inferred from the conduct of the parties. For example; the
player in the games of cricket or football is deemed to be agreeing to any hurt which is likely in the
normal course of the game. If a person is injured in an attempt to stop a restive house of another on a
“cry” for help; he has no right of action and he cannot be permitted to say, “ I knew the horse would
plunge, but I did not know how much would it plunge”.

For the defence of consent; the act causing the harm must not go beyond the consent of the person.

Consent by others:

When a person is incapable of giving the consent based on minority or his insanity; then the consent of
their parents or guardians is sufficient in such cases.

Consent obtained under fraud or compulsion:

If the consent of the plaintiff is obtained by fraud; it is not any defence of VNFI.

Similarly; the consent given under the circumstance when the person doesn’t have the freedom of choice
doesn’t constitutes as the voluntary consent of the person and thus the concept of VNFI doesn’t applies.

A person, however may be compelled by some forces to undertake the risk knowingly; which if he had a
free choice wouldn’t have been chose.

2. Knowledge:

For this maxim to be applied; two things have to be proven:

1. The plaintiff knew that the risk is there.

 2. He, knowing the same, agreed to suffer the same.

The above two points are very important to be proven so that the defence can be used.

2. PLAINTIFF THE WRONGDOER:

If the plaintiff is himself the wrongdoer and has suffered damage because of his fault or wrongdoings,
then the defendant can’t be held liable for the same.

Say for example if a thief enters a house and the dog bites him; he can’t recover damages from me
because he himself is a wrongdoer.

#Unnecessary injuries, not defendable:

The mere fact that the plaintiff is a wrongdoer doesn’t entitle the defendant an absolute right to cause
injuries to the plaintiff.

3. INEVITABLE ACCIDENT:

Unexpected accident and if the same couldn’t have been avoided and foreseen, in spite of reasonable care
on the part of the defendant, it is inevitable accident.

It does not mean an absolutely inevitable accident rather it means an accident which couldn’t have been
avoided even after taking reasonable precautions; which a man of ordinary prudence would take in such
situations. It is a very good defence, if the defendant can show that he neither intended to injure the
plaintiff nor could he avoid the injury by taking reasonable care.

4. ACT OF GOD:

Act of god is the simplest of all defenses. Act of god is a kind of inevitable accident with the difference
that in the case of act of god, the resulting loss arises out of working of natural forces like exceptionally
heavy rainfall, storms, tides and volcanic eruptions.

An act of god, in the legal sense may be defined as an extraordinary occurrence of circumstances, which
couldn’t have been foreseen an which could have been guarded against, or, more accurately, as an
accident due to a natural cause, directly and exclusively, without human intervention, and which could not
have been avoided by an amount of foresight and pains and care reasonably to be expected of the person
sought to be made liable for it, or who seeks to excuse himself on the ground of it.

Essentials of Act of God;

Two important essentials are needed for this defence:

 1. There must be working of the natural forces.

2. The occurrence must be extraordinary and not one which could be anticipated
and reasonably guarded against.

Note: - The occurrence must be extraordinary.

Nichols V Marsland: This illustrates that the occurrence must be extra ordinary. Here in the rainfall was
extraordinary heavy, and could not be anticipated and hence was called a fit case of act of God on the
other hand if the rainfall is a normal one which could be expected in a certain area, the defence of the act
of the God cannot be pleaded.

5. PRIVATE DEFENCE: (Section 96-106 of the Indian Penal code)

Every person has the right to protect his property and/or his person and he can use necessary force for the
purpose. Private defence or self- defence is a good defence in an action for tort as well. The doctrine of
private defence is based on the idea of self-preservation i.e. every human being has a basic right to
safeguard himself even if it involves violation of someone else’s legal rights, but to some lawfully
permissible limits.

Essentials of Private Defence

There are two essentials namely;

1. The use of force in private defence should be reasonable.

2. The use of force is allowed only when there is imminent danger or threat to the
safety of person or property.

1. Reasonable force:

The force used must be reasonable to protect one’s property. If the defendant uses the force which is
permissible, he will not be held liable for the harm caused thereby.

2. Imminent danger:

There should be an imminent threat to the personal safety or property, e.g. A would not be justified in
using force against B, merely because he thinks that B would attack him some day, nor can the force be
justified by way of retaliation after the attack is already over.

6. MISTAKE:
Mistake is generally no defence to an action for tort. When a person willfully interferes with the right of
another person, it is no defence to say that he had honestly believed that there was some justification for
the same; while in fact there was none.

However, while entering into some other person’s land thinking it to be his own or taking the umbrella it
to be your own; in these situations, the plea of self defence can be used.

7. NECESSITY:

The defence of necessity means that the act is done under the necessity to prevent a greater evil or harm.
Even if the harm is done intentionally, in such cases, no liability arises.

There is a distinction between the defence of necessity and private defence. In the former, the harm is
inflicted on an innocent person, while in the latter, harm or injury is inflicted on the person who is
claiming relief. plaintiff.

8. STATUTORY AUTHORITY:

One cannot bring an action for tort if he suffers damage caused by an act done under the authority of the
legislature when harm results from such an act, the injured party can claim only such damages or
compensation as provided by the statute.

Chapter-3

VICARIOUS LIABILITY

In this chapter titled “VICARIOUS LIABILITY”, we will read one peculiar situation under law of torts
wherein a person may be held liable for the acts of others.

The term “vicarious” means indirect or on behalf of someone; so reading the two words together coveys
the meaning indirect liability or liability which is indirect in character or simply; the liability which is for
the acts of the other or on behalf of someone else. We shall discuss it in reference to the three
relationships that commonly exist:
 Master Servant Relationship

Principal Agent Relationship

Relationship between parties

Generally a person isn’t held liable for the acts of the other persons but in certain cases;

there can be vicarious liability, wherein other person can be held liable for the acts of others. But in order
to make one person liable for the acts of the other person; there must be some sort of relationship between
them. The common examples of such liability are:-

1. Liability of principal for the tort of his agent

2. Liability of partners of each other’s tort

3. Liability of the master for the tort of his agent.

1. Principal and agent: (Section 182 of the Indian Contract Act, 1872)

Where one person authorizes another to commit a tort, the liability for that will be not only of that person
who has committed it but also of that person who has authorized it. It is based on the general principle
“qui facet per alum facet per se” which means that the act of an agent is the act of the principal. For any
act authorized by the principal and done by the agent both of them are liable. Their liability is joint and
several.

In Trilok Sigh V. Kailash Bharti, which the owner of the motor cycle was outside the country, his
younger brother took the motor cycle without his knowledge or permission and caused the accident. It
was held that the younger brother could not be deemed as the agent of the owner of the motorcycle and
the latter could not be vicariously liable for the accident.

2. Partners:

The relationship between partners is same as that of principal and agent. The rules of the law of agency
apply in case of their liability also. For the tort committed by any partner in the ordinary course of the
business of the firm, all the other partners are liable. The liability of each partner is joint and several. In
Hamlyn v Houston& Co. one of the two partners of the defendant’s firm, acting within the general scope
of his authority as a partner, bribed the plaintiff’s clerk and induced him to make a breach of the contract
with his employer by divulging secrets relating to his employer’s business. It was held that both the
partners of the firm were liable for this wrongful act committed by only one of them.

3. Master and Servant:

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

It also derives validity from the maxim qui facit per alium facit per se, which means ‘he who does an act
through another is deemed in law to do it himself”.

Since for the wrong done by the servant, the master can also be made liable vicariously, the plaintiff has a
choice to bring an action against either or both of them. Their liability is joint and several as they are
considered tortfeasors.

Why only the Masters:

The superior has the responsibility for anything done by the servants as they are in a better position than
the servants to meet the claim because of their larger pockets and also their ability to pass the burden on
the insurance.

The liability of the masters arises even when the servants have worked against the implied instructions
and for no benefit of the master.

Essential of the Vicarious Liability:

1. The tort was committed by the ‘servant’.

2. The servant committed the tort in the ‘course of employment’.

Who is a servant?
Though in our day to day life the term ‘servant’ is narrowly construed and includes a small number of
people such as the maid who comes to our houses, the chauffer, the gardener, but in the legal sense a
servant is the person who has been employed by another person to do some work for him under the
directions and control of his master.

The two rules to identify whether a person working for another is a servant or not-

1. The hire and fire rule

2. The direction and control test

The first test provides that a servant is the person who can be hired and fired at the discretion of the
master i.e. his services can be terminated by the master.

The second test lays down that the servant is under the discretion of his master and thus the servant is
bound to follow the directions of the master along with his discretion of the master as regards the manner
of doing the work and things incidental thereon.

The course of employment

The second essential requires that the act must be done within the course of employment. The master
can’t be held liable for all the acts of the servant; rather he can be made liable for only those acts of the
servant which are done within the course of employment. The liability of the master isn’t limited to only
those acts which he expressly authorizes to be done but he is liable for such torts which are committed
within the course of employment, though may not be expressly authorized by the master.

An act is done in the course of employment if it is either a wrongful act authorized by the master, or a
wrongful and an unauthorized mode of doing some act authorized by the master. So, a master can be
made liable as much for the unauthorized act for the acts he has authorized
 Acts done by
the servant

unauthorised
authorised acts
acts

Done in Rightful
Done wrongly( manner Master Not
Master Liable) liable
(Master Liable)

Acts outside the course of employment

When a servant does something which isn’t within the course of employment; the master can’t be held
liable for the same.

Negligent delegation of the work:

If a servant negligently delegate his authority and instead of him carefully performing the work; allows
someone else to perform it and that person performs the work negligently, the master will be held liable
for this act.

CHAPTER-4

NEGLIGENCE

Negligence can be defined by two ways;

1. Negligence, as a mode of committing other torts, such as carelessly committing trespass,

nuisance, etc.

2. Negligence as a separate tort. Here it means such as conduct which creates a risk of causing
damage.
Essentials of negligence:

There are two essentials of negligence:

1. The defendant had a duty of care towards plaintiff.

2. Breach of that duty on the part of the defendant.

3. Damage suffered by the plaintiff as consequence of the breach of duty.

1. Duty of care towards the plaintiff.

It means a legal duty and not a mere religious, social and moral duty. It is the duty of the plaintiff to
establish that the defendant had to perform some duty and there was a breach of duty on the part of the
defendant.

How to calculate such duty of care?

There is no general rule of law defining such duty, it depends on each case whether such a duty exists.
The duty to take care arises out of various relationships which may not be possible to enumerate
exhaustively and the courts recognize new duties when they think that to be just on the scales of law and
justice. The criterion to define such a duty was laid by the hon’ble justice Lord Atkn in the following
case:

Donoghue v/s Stevenson.

Plaintiff brought action to recover damages from defendant, a manufacturer of aerated waters, for injuries
he suffered as a result of consuming a part of the contents of a bottle of ginger beer, manufactured by the
defendant, and which contained the decomposed remains of a snail. The bottle of ginger beer had been
purchased from a retailer, for her, by a friend. The bottle was of made up dark colored opaque glass,
sealed with a metal cap.

The plaintiff claimed that it was defendant’s duty to have a system of work and inspection sufficient
enough to prevent snails or for that matter any foreign substance from getting into ginger beer bottles.

The question is whether the manufacturer of the drink, as he sold it to the distributor, in the circumstances
which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any
such defect, is under a legal duty to the ultimate purchaser or the consumer? Isn’t it his responsible to take
reasonable care of the articles manufactured to be free from any defect likely to cause injury to health?

The hon’ble court laid down the following proposition to decide the liability as regards the
aforementioned issues.
There are two terms that you need to lay emphasis upon, firstly that you owe this duty of care towards
your ‘neighbor’, so you need to understand who all can fall under this category. Secondly your duty
extends only up to those things which you can ‘reasonably foresee’.

1. Neighbors:

The term neighbor doesn’t mean people who live adjacent to your house; rather it’s a very wide term and
includes any person so closely and directly affected by your acts that you ought reasonably to have them
in contemplations being so affected when you are directing your mind to the acts or omissions which are
called in questions.

2. Reasonable foresight:

Whether the defendant owes a duty of care to the plaintiff or not depends on the reasonable foresee ability
of the injury to the plaintiff. If at the time of the act or omission, the defendant could reasonably foresee
injury to the plaintiff arising out of his acts or omissions, he owes a duty to prevent that injury and failure
to do that makes him liable.

Breach of duty:
breach of duty means non-observance of due care which is required in a particular situation. What is the
standard of care required? The standard is that of a reasonable, man or a man of an ordinary prudence.

Standard of care required:

The concerned should take the required standard of care while performing any work.

Damage

It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The plaintiff
also has to show that the damage caused as consequence of the defendant’s negligence isn’t too remote.

Contributory negligence and Composite negligence

Contributory negligence

When the plaintiff by his own want of care contribute to the damages caused by the negligence or
wrongful conduct of the defendant, he is considered to be guilty of contributory negligence.

Composite negligence

When the negligence of two or more persons results in the same damage, there is said to be “Composite
negligence” and the persons responsible for causing such damage are known as “Composite negligence”.
CHAPTER-5

TRESSPASS

Trespass means to go beyond the limits of what is considered right or moral or to do something wrong or
to transgress.

Another popular meaning is to go into someone else’s land or property without the permission or right.
Talking in reference to torts; trespass is of two kinds:

 Trespass to land

 Trespass to person

1. Trespass to land: trespass to person simply means to enter into someone else’s land or
property without prior permission or without a reasonable caus.

2. Trespass to person: trespass to person is of two kinds:

1. Assault (Section 351 of Indian Penal Code)

2. Battery

3. False imprisonment

Battery

Battery as a tort means use of force against an indivual without a lawful justification. Its essential
requirements are:

(i) There should be use of force

(ii) The same should be, without any lawful justification.

(i) Use of force

The first and the foremost requirement is that there is use of force, even if the force is used is very trivial
and doesn’t cause any harm. Physical hurt need not be there.

(ii) Without lawful justification

It is essential that the use of force should be intentional and without any lawful justification.

Harm which is unintentional or caused by pure accident is also not actionable.

 Assault (Section 351 of Indian Penal Code)

If battery is actual use of physical force. Assault is merely an apprehension of

force. Any act of the defendant which causes to the plaintiff reasonable apprehension of the battery on
him by the defendant can be called as the assault.

Example: pointing a loaded gun at another is an assault.

Ability to cause assault:

It is also essential that there should be prima facie capacity to do the harm. If the fist or the stick is shown
from a distance that the threat can’t be executed, there is no assault

False imprisonment

False imprisonment consists in the imposition of a total restraint for some period,
however short, however short, upon the liberty of another, without sufficient lawful justification.

To constitute this, the imprisonment in the ordinary sense isn’t required, for example, when a person is
deprived of his personal liberty, whether by being confined within the four walls or by being prevented
from leaving his own house; it falls under the category of false imprisonment.

Total restraint

In case of the false imprisonment it is essential that the plaintiff is restrained

completely i.e. he is prevented from going in any direction whatsoever. To constitute it; the person must
have been completely deprived of his personal liberty.

CHAPTER – 6

DEFAMATION (Section 499 of Indian Penal Code))

(Section 499 of Indian Penal Code) says Defamation:- Writing or saying something that damages one’s
reputation. If a person injures the reputation of another, he does so at his own risk, as in the case of
interference with the property.

Libel and Slander

Actions for defamation is divided into two parts:

Libel: It means that the representation is made in some permanent form.

Slander: it means publication of a defamatory statement in a transient form or a non permanent form.

Essential of defamation

1. The statement must be defamatory

2. The said statement must be referred to a plaintiff.

3. The statement must be published

1) The statement of must be defamatory:

The first and the very important essential for liability under the tort of defamation is that the statement
made must be ‘defamatory’. A defamatory statement is one which tends to injure the reputation of the
plaintiff in the eyes of general members of the society.

INNUENDO

Innuendo are innocent looking statements which convey a hidden defamatory meaning. These may prima
facie be innocent but because of some latent or secondary meaning they are defamatory. If the plaintiff
wants to bring an action for defamation, he must prove the latent or the secondary meaning i.e. the
innuendo, which make the statement defamatory.

The role of intention:

Intention is of no consequence in the law of torts and defamation is no exception to it. When the words
are defamatory then the person to whom the defamatory statement is published is said to be defamed

2.The statement must be refer to the plaintiff:

The statement must refer to the plaintiff in particular. If the person to whom the statement has been
published could reasonably infer that the statement has been referred to plaintiff; the defendant is
nevertheless is liable.

3.The statement is published:

The statement has to be published in the form of a defamatory statement. Publication doesn’t mean
publication in some print media. It means that the communication must be done to some third
person/party for the purpose of injuring the plaintiff’s reputation in front of the third party.
Defenses:

There are three defenses to defamation:

1. Justification or truth: Truth is a complete defence in case of the civil action for defamation. The reason
that it is adherence because law shall not permit any person to recover damages for any injury which he
doesn’t or ought not to possess. If the statement is substantially true but partially incorrect the defense is
still available.

2. Fair comment: Making fair comments on matters of public interest is a defence to an action for
defamation. For this defence to be available the essentials are:
1. It must be a comment

2. The comment must be fair.

3. The matter commented upon must be the matter of public interest.

3. Privilege: It contains of absolute privilege and qualified privilege.

This means that it contains either a situation wherein no action no lies against the defendant for the
defamatory statement said.