LAW OF TORTS INCLUDING CONSUMER PROTECTION LAW

*INTRODUCTION -: The word tort is a latin term Tortum which means in its etymological sense
‘twisting out’ and in a popular sense it implies conduct which is twisted or unlawful. In this sense, it is
equivalent to the English word ‘wrong’. The term ‘tort’ was introduced into the English law by Norman
jurists. In due course, this term was used for those special wrongs for which English Courts allowed
action in tort for giving remedies. Thus it consists of those wrongs or unlawful acts which violate legal
rights of a person for which law provides the remedy of unliquidated dameges.

It is the duty of every person to respect the legal rights of others. If a person violates his legal duty he
does a wrongful act and if by his act an injury is caused to the legal right of a person then the aggrieved
person can file a suit against him for damages.

Definition of Tort
According to Salmond “A tort is a civil wrong for which the remedy in common law is action for
unliquidated damages, and which is not exclusively the breach of a contract or the trust or the breach of
other merely equitable obligations.

According to Fraser “ A tort is an infringement of right of a private individual giving a right of

compensation at the suit of the injured party”.

According to Dr. Winfield, “Tortious liability arises from breach of duty primarily fixed by the law. This
duty is towards persons generally and its breach is redress able by an action for unliquaidated damages.

Thus according to Dr. Winfield a tort has the following essentials:-

1. Tortuous liability arises from breach of duty fixed by law.

2. This duty is towards persons generally.
3. Breach of duty is redress able by an action for unliquidated damage

Essential of tort- On the analysis of above definition we find some common elements which
are necessary to constitute a tort, i.e.

(1) Wrongful Act.

The act of the defendant becomes wrongful of act only when there is violation of legal right of another.
Now, a natural question arises for consideration as to what is meant by a legal right. The rights which
are available against the world at large are of two kinds-

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1. Private right

Private rights include all the rights which belong to a particular person to the exclusion of the world at
large i.e. (a) right to person (b) right to property and (c) right to reputation.

2. Public Right. Public right include those rights, which belong to a common to the members of the
state generally.

(2) Legal Damage:Damages are the pecuniary compensation which the law awards to a
person for injury he has sustained by the wrongful act of another.

Kind of damages

1.Contemptuous Damages - Contemptuous damages are awarded where, technically, a legal

wrong is committed, but where the circumstance disclosed are such that court feels that no
action should have been brought. They are awarded usually in action of defamation.

2.Nominal Damages - Nominal damages are awarded by the court to the plaintiff, not by of
compensation , but by way of a recognition of some legal right of his which the defendant has
infringed. For exp- an action for assault, trespass, invasion of right of easement etc.

3. Substantial Damages –Substantial or actual damages are a sum of money awarded to the
plaintiff as fair and equitable compensation for the injury suffered by him. They are also called
ordinary or compensatory damages. Such damages are awarded in a great majority of action in
tort.

4.Exemplary Damages- Exemplary damages are awarded in cases where there has been great
injury by reason of aggravating circumstances accompanying the wrong. A heavyamount is
awarded as an expression of indignation at the conduct of the defendant , whatever he has
shown a conscious disregard of the plaintiff’s rights.
Maxim :
a.Injuria Sine Damnum

Injuria Sine Damnum

Legal injury Without Damage

Infringement of a legally Without Actual physical loss Actionable

protected interest

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Example : Asbhy V. White, 1703, the defendant, a returning officer, wrongfully refused to
register a duly tendered vote of the plaintiff, alegally qualified voter, and the candidate for
whom the vote was tendered was elected, and no loss was suffered by the rejection of the
vote, nevertheless it was held that an action lies.

b.Damnum Sine Injuria

Damnum Sine Injuria

Damages Without Legal Injuria
Actual Physical loss Without Infringement of a legally Non-actionable
protected interest

Example : Glucester Grammer SchoolCase, 1410 – In this case the defendant a schoolmaster, set up a
rival school next door to the plaintiff and boys from the plaintiff’s school flocked to defendant’s. It was
held that no action could be maintained. Competition is no ground of action whatever damages it may
cause, provided nobody’s legal rights are infringed.

(3) Legal Remedy- (ubi jus ibi remedium) -A tort is a civil injury, but all civil injury is not torts. The
wrongful act must come under the category of wrongfor which the remedy is a civil action for damages.
The essential remedy for a tort is a an action for damages, but there are other remedies also, e.g.
injunction may be obtained in addition to damages in certain cases of wrong. Specific restitution of a
chattel may be claimed in an action for detention of a chattel.

Joint Tort-feasors
When several persons join in committing a tort, they become joint tort-feasors.All person who, in the
eye of law, are responsible for the same tort, are to be dealt with as joint wrong doers. All person who
aid or counsel or direct or join in the commission of a wrongful act are joint tort-feasors. There must be
some connection between the act of one alleged tort-feasors and that of the other.

For example –The two ships collied with each other on account of separate and independent act of
negligence on the part of each vessel. One of them dashed against the plaintiff’s ship, consequently, the
plaintiff’s ship sank. In an action for damages it was held that they were in not the joint tort-feasors
because the plaintiff’s ship was damaged due to theindependent act of both the ships. Hence both the
ships were liable independently.

Liability of joint tort-feasors: The joint liability of joint tort-feasors arises in the following circumstances
-:1.Liability under agency- whenever one person employs another to do an act which amounts to a tort,
or where one person authorizes or procures another to commit a tort, the law imputes the wrong to
both of them.

2. Vicarious liability – where a person commit tort under circumstances which makes another person
vicariously liable for the wrong, both are deemed to be joint tort-feasors, such as, master and servant.

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 3. Joint or common action, i.e., when two or more persons jointly commit a tort.

4. Partners –the liability of partners is joint as well as several for a tort committed in the course of
the firm’s business.

Tort distinguished from Crime

TORT
1. A tort is a kind of civil wrong. Which
gives rise to a civil proceeding.
2. A tort is a violation of the private right
of an individual considered as an
individual consideration as an
individual.
3. In a Tort , the plaintiff is the injured
party.
4. In tort, the purpose of awarding
compensation to the injured party is to
make good the loss suffered by him.
Tort distinguished from Contract :-
CRIME
1. A crime is an offence against state
which gives rise to a criminal
proceeding
2. A crime is a breach of public right
which affects the whole community.
3. In a crime, the state is the injured
party.
4. In a crime, the purpose of criminal law
is to protect the society by preventing
the offender from committing further
offences.

Tort
1. A tort is a violation of a right-in-rem i.e.,
right exercisable against the whole world.
2. In tort the duty is one which is imposed
by law and is owed to the society in
general.
3. A tort is inflicted against the will and
consent of the other party.
4. There is no privity in a tort, because it is
always inflicted against the will of the
party injured
5. In case of tort, the suit is for unliquidated
damages.
Contract
1. A breach of contract is a violation of a
right-in-personam, i.e., right exercisable
against a definite person or persons.
2. In a contract the duty is fixed by will and
consent of the parties and is owed to a
definite person or persons.
3. In a contract, the obligation is founded on
the consent of the parties to the contract.
4. In a contract, there must always exist
privity between the parties; i.e., a binding
legal tie between them.
5. In a breach of contract, the suit is for
liquidated damages.

*GENERAL DEFENCES IN TORTS- There are certain cases in which there is no liability,
either because intension and negligence are absent, or because of the application of general principals
of law. Each particular tort, of course, has its own peculiar defence, namely, truth is a defence to an
action for defamation. Under certain conditions the act is said to be justified or excused. So, if a person

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is sued for an action for tort, he can put forth any of the following general grounds as defence against
liability:

1. VOLENTI NON FIT INJURIA- The maxim, Volenti non fit injuria means ,”willingness does not
make injury” or where the sufferer is willing no injury is done. In other words harm suffered
by consent is not a matter of cause of action. That is to say, an act is not actionableas a tort
at the instance of any person; he cannot enforce the same against that person.
2. ACT OF GOD – Act of God includes those consequences which are occasioned by elementary
force of nature unconnected with the agency of man. Its examples are falling of a tree, a
flash of lightening, a tornado or a flood etc. Act of god is related only with the natural
operation it has no concern with the human activities. Act of god is general defenses under
the tortuous liabilities.
3. INEVITABLE ACCIDENT- An inevitable accident is that which could not possibly, beprevented
by the exercise of ordinary care, caution and skill. It means accident physically avoidable. An
inevitable accident is related only with the human activities. It has no concern with the
natural acts. An inevitable accident is also a defense general.
Exp –In Stanley V Powell the plaintiff and the defendant who were members of a shooting
party went for pheasant shooting. The defendant fired at a pheasant but the shot from his
gun glanced off an oak tree and injured the plaintiff. It was held that the injury was
accidental and defendant was not liable.

4. STATUTORY AUTHORITY-The damage resulting from an act which the legislature authorizes
or directs to be done is not actionable even through it would otherwise be a tort. When an
act is done under the authority of an act it is complete defense and the injured party has no
remedy except for claiming such compensation as may have been provided by the statute.
Immunity under statutory authority is not only for that harm which is obvious but also for
that harm which is incidental to the exercise of such authority.

*VICARIOUS LIABILITY WITH SPECIAL REFERENCE TO MASTER’S

LIABILITY FOR ACTS OF SERVENT- Vicarious liability,that is the liability of one person
for the act done by another person may arise in certain cases. In order that the liability of A for
the act done by B can arise it is necessary that there should be a certain kind of relationship

between A and B and the wrongful act should be in certain way, connected with that
relationship. The common examples of such liability are:

1. Principal and Agent.

2. Partners for each other’s tort

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3. Master and Servant

4. Company and Directors

5.Guardian and Ward

Liability of Master for the torts of the servant – A servant is a person who voluntarily agrees,
whether for wages or not, to subject himself, and at all times during the period of service, to
the lawful orders and directions of another, in respect of certain work to be done. A master is
the person who is legally entitled to give such orders and to have them obeyed. The relation of
servant exists only between persons of whom one has the order and servant exists only
betweenpersons of whom one has the order and contract over the work done by the other.

Principal on which vicarious liability is justified- it is justified on the following two maxims-

1.Qui facit per alium facit per se-The master’s responsibility for his servant’s act has its origin in
the maxim. That’s means,” he who does an act through another, is deemed in law to do it
himself”. A person who puts another in his placeto do a class of acts in his absence, necessarily
leaveshim to determine, according to the circumstances that arise, when an act of that class is
to be done, and trusts him for the manner in which it is to be done.

2.Respondeat Superior – The master is answerable for every such wrong of the servant or
agent as is committed in the course of the service, through no express command or privity of
the master is proved. It’s mean that let the superior responsible.

When is master liable-

A master is always liable for the wrong done by a servant in the course of his employment in
the following circumstances-

1. Where the wrong is the natural consequence of the authorized act – In case the wrong
is the natural consequence of something done by the servant with ordinary care in
execution of his masters specific orders, the master will be held liable.
2. Where the wrong is due to servant’s negligence- Where the wrong is done due to
servant’s want of care of negligence in carrying out the work or master’s business, the
master would be liable.
3. The wrong may be due to excess or mistaken execution of a lawful authority- In cases
where the wrong committed by the servant consists of excess or mistaken execution of
a lawful authority, it must be shown – (a) that the servant intended to do on behalf of
his master, something which he was, in fact, authorized to do; and (b) that the act, if

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 done in a proper manner, or under the circumstances erroneously supposed by the
servant to exist, would have been lawful.
4. The wrong may be a willful wrong- where the wrong of the servant is willful wrong but
on the master’s behalf and with the intention of serving his purpose the master is not
liable provided the act is done by the servant within the scope of employment.
5. The wrong may be due to servant’s fraudulent act- A master is liable, not only for the
wrongful acts of the servants, whether done carefully, bonafide, negligently,
intentionally, willfully or even contrary to express orders, but also fraudulently.
6. The wrong may be due to servant’s criminal act –Amaster is liable, through not in
criminal proceedings, yet in civil action, even in respect of criminal acts of his servant,
provided they are committed in the course of his employment.
Thus, we can say that under the above mentioned circumstances a master would always
be liable for the tortuous act of his servant.

*ABSOLUTE AND STRICT LIABILITY

There are certain cases in which the defendants are under the duties to secure safety. In such cases
even if there is no negligence or wrongful intention on the part of the defendant yet he is liable for
direct consequence of his acts. That is why it is called absolute liability. Here the wrong arises from the
breach of an absolute duty. An absolute duty may be defined as a duty which renders a man liable
without any fault of his, irrespective of any consideration of intention or negligence on his part. It is
absolute, meaning thereby, that it is not necessary for the injured party to prove any intention or

negligence on the part of the injuring party and no amount of care and caution expended by the latter
to prevent the damages done to the farmer will excuse him.

The rule of strict liability- ( Ref. case Rylands V. Fletcher)

Essential Elements

1.Escape of things from defendant’s land

2. Non-natural use of land

Defenses

a. Naturals use of thing

b. Act of God– Act of God includes those consequences which are occasioned by elementary force
of nature unconnected with the agency of man. Its examples are falling of a tree, a flash of
lightening, a tornado or a flood etc. Act of god is related only with the natural operation it has

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 no concern with the human activities. Act of god is general defenses under the tortuous
liabilities.
c. Act of a stranger – Therule is also not applicable where the damages is due to the
wrongful or malicious act of a stranger
d. Common Benefit
e. Consent of plaintiff In case of volenti non-fit injuria i.e. where the
f. Mistake of plaintiff
g. Statutory Authority

The Rule of Absolute Liability- (Ref. case M.C. Mehta V. Union of India AIR 1987)

*TORTS BASED ON INTENTIONAL WRONG –DOING

ASSAULT: An Assault is the unlawful laying of hands on another, or an attempt to do a corporal
hurt to another, coupled with present ability and intention to do the act. Thus, the essence of
the wrong is putting a man in present fear of violence, so that any act fitted to have that effect
on a reasonable man would be an assault. But mere verbal threat is not assault, nor is a threat

considering only of gestures, unless there is an immediately intention and a present ability to carry it
out.In assault, the intention of the offender is an important factor.

BATTERY: “Battery is the actual striking of another person or touching him in a rude angry in insolent
manner.” In other words, the intentional application of force to the person of another

without lawful justification, however trivial the amount of nature of the force may be, constitutes the
wrong of battery. For instance, the least touching of a man in anger is battery.

Thus, spitting on one’s face or cutting another’s hair without his consent, or snatching a paper from
another’s hand, or removing his hat, would be instance of battery.

FALSE IMPRISONMENT: False imprisonment means the total restraint of the liberty, for however
short a time, without lawful justification. Such a restraint may be either physical or by a mere show of
authorized. For Exp. Where a professor locks up his students in the class room after the usual lecture
hours, or where a man is restrained from leaving his own house, it would amount to the tort of false
imprisonment.

MALICIOUS PROSECUTION: Malicious prosecution means the malicious institution against another of
unsuccessful criminal or bankruptcy or liquidation proceeding without reasonable or probable cause. It
is clar from the term,”Malicious Prosecution” itselfthat it is that kind of tort in which mental element
plays a vital role. Unless the malice is proved, no action would lie for this tort for damages.

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MATTERS WHICH MUST BE PROVED BY THE PLAINTIFF IN AN ACTION FOR MALICIOUS
PROSECUTION-The generally accepted essential elements in cause of action for malicious prosecution,
in conformity with malicious decisions, are :

(1) That the plaintiff was prosecuted by the defendant,

(2) That the prosecution terminated in his favour, if from their nature they were capable of such
termination.
(3) That there was no reasonable or probable cause for launching such prosecution,
(4) That the prosecution was malicious, i.e. it was done with ulterior motive and with the intent of
carrying the law into effect.

(5) Damages- plaintiff should have suffered damages and special damages when the
proceedings are other than criminal proceedings.

Affecting Immovable Property –

Trespass to Landmeans interference with the possession of land without lawful justification. In
trespass the interference with the possession is direct and through some tangible object
however if interference is not direct but consequential the wrong may be nuisance.

*TORTS BASED ON INTERNATIONAL AND NEGLIGENT WRONG-DOING

(A) NERVOUS SHOCK - By nervous shock is meant a shock to the moral or intellectual sense; by
nervous shock mean a shock to the nerve and brain structures of the body. The phrase nervous
shock is generally used as a convenient captionfor discussing the case on the subject, but the
words, nervous , mental or emotional shock are now used interchangeable in the present
context.
An action lies for nervous shock and bodily illness or disorder supervening on it,though the
shock was caused not by the application of physical force to the body of the sufferer, but by
words or acts calculated to cause emotional disturbance like fear, sorrow or distress.
For exp- in Dooley Vs. Cammell Laied co. 1957, the defendant’s negligence led to the breaking
of the rope of a crane so that its load fell into the hold of a ship where men were working. The
plaintiff was the driver of the crane and was not himself in personal danger but he suffered
shock from witnessing the danger to the men in the hold, and Darovan, j., held that he was
entitled to succeed. Here the learned judge clearly denied the requirement of physical danger
to the plaintiff. There was a breach of duty owed to the plaintiff.
It is now well settled that illness due to nervous shock is actionable, irrespective of actual bodily
impact.

(B) NUISANCE

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The word ‘nuisance’ is derived from the French word ‘nutre’ and latin word ‘nocere’ which mean ‘to hurt
or to annoy’. Nuisance has been defined to be anything done to the hurt of annoyance of the lands,
tenements or heredetanement of another, and not amounting to a trespass.

Categories of Nuisance

a) Public- general or common nuisance

b) Private
a) Public Nuisance

Definition-Public Nuisance is an act or omission which causes any common injury, danger or annoyance
to the public or to the people in general who dwell or occupy property in the vicinity, or which must
necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use
any public right.

Public Nuisance when Actionable by Private Person

1. Specific damage
2. Injury must be substantial
3. The injury must be direct and merely consequential

b, Private Nuisance

Definition-A private nuisance is some unauthorized user of a man’s own property causing damage to the
property of another or some unauthorized interference with the property or proprietary rights of
another, causing damage, but not amounting to trespass

Elements of Private Nuisance

1. Unreasonable or unlawful interference

2. Such interference

DamagePrivate nuisance may be with respect to property or personal physical discomfort

1. Damage to property
2. Physical Discomfort

(C) DEFAMATION
Defamation: Every person has an absolute right to preserve his reputation. This right is
acknowledge as an inherent personal right of every person. It is a right in rem i.e. , a right
available against the whole world. A man’s reputation is his property and if possible more
valuable than any other property.
Defamation is defined by the eminent jurist as under:-

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 Dr Winfield,” Defamation is the publication of a statement which tends 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.”
Dr Salmond,”Defamation is the publication of a false and defamatory statement regarding
another without any justification.”

So we can say that when there is a publication of a statement which expose a person to hatred,
contempt or ridicule or to expose him in his trade, business, profession, calling or office or to cause
him to be shunned or avoided in the society.

For Exp. A says to b that z is suffering from leprosy. It is a defamation of Z if he is not so

suffering.

Kinds of Defamation – Defamation is a generic term containing its two forms i.e.,
(1) libel (2) slander
(1) liable – A liable is a publication of false and defamatory statement, in some permanent
form, tending to injure the reputation of another person, without lawful justification or
excuse.

Essentials of liable – Essentials of liable are three –

(1) The statement must be false;

(2) It must be a permanent form;
(3) It must be defamatory.
It must be noted that the liable is actionable per se, i.e., without proof of actual damages.
(2) Slander – A slander is a false and defamatory verbal or oral statement in some transitory
form, tending to injure the reputation of another, without lawful justification or excuse. By
reputation is meant the opinion of the world in general. It may be noted that slander is not
actionable without proof of special damages.
Essentials of slander

Essential of slender – The essentials of slender are six-

1. The matter complained of must be defamatory – A matter is defamatory when it lowers the
plaintiff in the esteem of others or causes him or her to be shunned by society.
2. It must be false, and must not be privileged.
3. It must refer to the plaintiff.
4. It must be published.
5. It must be published by the defendant.
6. There must be special damage

DIFFERENCE BETWEEN LIBEL AND SLANDER

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 LIBEL
1. Libel is the defamation in a written
permanent form, normally addressed to the
eye.
2. Libel is the defamation in a permanent form,
whether exhibited to the eye as in the case of a
statue, effigy, caricature and the like or only to
the case of a photography record.
3.In India as well as in England libel is both a
tort and crime.
4. Libel is actionable per se i.e. without proof of
actual damage.
5. in case of libel there exists malice and greater
deliberation.’
6. In case of libel, the actual publisher may be
an innocent person and thus, may not be liable.
SLANDER
1. Slander is the defamation in an oral or
transient form addressed to the ear; e.g.
defamation through parrot.
2. Slander is the defamation in a transient form,
whether audible, as in spoken words, or visible,
as in the case of gesture.
3.In India , slander is also both a tort and a
crime but in England slander is a civil wrong.
4. Slander is not actionable per se i.e. without
proof of actual damage except in five cases.
5. Slander may be uttered in the heat of the
moment and under a sudden provocation.
6.In case of slander, the publisher acts
consciously and voluntarily and must always be
liable.

REMOTENESS OF DAMAGE :
The damage suffered by the plaintiff must be direct and natural cause of the defendant’s act. The
law will permit no damages to be recovered, except such as are the natural and legal consequence
of a wrongful act.Injure non remota causa sed proxima spectur i.e., in law, the immediate and
proximate, not the remote, cause must be considered. A man is presumed to intend the natural, but
not the remote, consequence of his act.

Damage is said to be too remote when, although arising out of the cause of action, it does not
immediately and necessarily flow from it, or is such which could not have reasonable been forseen.
A man is not liable for all the consequences of his wrongful act or default.liability must be founded
on the act which is the immediately or direct cause of the harm. Where the causal connection
between the wrongful act and the injury is not sufficient direct, that is to say, when the two cannot
be connected as cause and effect , there is no liability, for the damage is too remote.

Exp: Guille Vs Swan, 1882 damage was held to be the natural and probable consequence of the
defendant’s act. In this case the defendant, a balloon is, came down in the plaintiff’s garden,
whereupon a crowd of people, attracted by the balloon, broke into the garden, and plaintiff filed a
suit not for the damages done by the balloon itself, but also for that which was done by the crowd.

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