apter 1

Meaning of Trot

Tort law is the part of law for most harms that are not either criminal or based on a contract.
Tort law helps people to make claims for compensation (repayment) when someone hurts
them or hurts their property.

For example, a car accident where one driver hurts another driver because he or she was not
paying attention might be a tort. If a person is hurt by someone else, he or she can sue in
court.

Many torts are accidents, like car accidents or slippery floors that make people fall down and
get hurt. These are called negligent torts. But some torts are done on purpose. These are
called intentional torts. For example, if one person punches another person in the nose, it
might be an intentional tort called battery.

Many torts cause physical harm to people. Some torts cause damage to property, like a
broken window. Some torts can harm other things, like someone's reputation or a business.

The kinds of torts this article talks about are a part of the common law. The common law is
found in England and former British colonies, such as the United States of America. Different
laws are found in civil law countries such as France or Germany. In those countries people
usually use the word delict instead of tort, but they mean very similar things. 1

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Chapter 2
1.1 Concept of Mens-rea
An act becomes crime when it is committed with evil intention. Evil intention or guilty mind
is essential to commit a crime otherwise a person cannot be held liable and punished. Mens
rea is based on well-known maxim, "actus non facit reum nisi mens sit rea" which means "act
does not make a man guilty unless his intentions were so. Earlier in English criminal law
there was no distinction between crime and tort. Criminal law was based on Strict liability
and punishment in those days was mainly in form of money compensation. Therefore, mental
element in crime was irrelevant but later bodily punishment came in substitute of damages.
Now from here mens rea got importance. Mental element in crime was recognized as at this
time. With the passage of time mens rea became important element in deciding crime. No act
is per seen criminal; it becomes criminal only when the actor does it with guilty mind. The
Model Penal Code recognizes four different levels of mens rea:
1. purpose (same as intent)
2. knowledge
3. recklessness
4. negligence.
1.2 Mens rea in case of committing tort
Intentional tort
In order to commit an intentional tort, some action must be done with a purpose there must be
an intention to commit an act. Presence of mental element is essential.
Intentional tort includes the following
1.Battery
When some force is applied physically to the body of another person in an offensive manner
which causes some harm is called battery.
2. Assault:

When the act of one person creates an apprehension in the mind of another person that such
act is likely or intended to cause such harm. It could range from pointing a gun at a person to
verbally threatening a person.

The difference between battery and assault is, in battery physical contact is mandatory, in
assault physical contact is not mandatory as the purpose is to threaten and not harm.
3. False imprisonment:

It is the unlawful confinement of the person without his will. It is not necessary that person
should be put behind the bars; a mere impossibility of escape against the will of the person
from a certain area is enough to constitute a tort of false imprisonment. It includes the use of
physical force (actual expression of force is not always necessary), a physical barrier like a
locked room, invalid use of legal authority. False arrest is the part of false imprisonment
which includes detaining of the person by the police without lawful authority. Malicious
prosecution falls within the category of false imprisonment.

4.Trespass

It is the intentional, unreasonable invasion of the property, land, person or goods. The
unreasonable interference can cause harassment or harm to the other person, no matter how
slight it is. The legal right of the owner of the property is infringed because he is deprived of
his right to enjoy the benefit of the property by the misappropriation or exploitation of his
right.

Types of trespass are: Trespass to person, trespass to land and trespass to chattel. Trespass is
malfeasance like as commission of illegal / wrongful act which is actionable per se.

Unintentional Tort-
In unintentional torts, mental element is insignificant in determining tortuous liability.
For example, Negligence or Recklessness.

Negligence, Fault and No fault liability

In negligence, the defendant causes injury to the plaintiff without any malafide intention. The
person who caused the injury was not careful or was negligent. The injury is caused due to
omission of the “duty of care” which a reasonable and prudent man ought to have considered.
Recklessness is high degree of negligence or carelessness.

Misfeasance-improper performance of a lawful act for example Negligence, or non-

feasance-failure to do an act which one is legally obliged to do (an act of omission), for
example, Fault/mistake that leads to injury to someone, who has a right of action in a court of
law against the tort-feaser. Here neither intention, nor, motive is material. Despite fault being
an essential condition of liability, the law of tort also contains “no fault liability”-strict
liability.
Case relate to Mens rea:

Hyam v DPP [1975] AC 55

The defendant, in order to frighten Mrs. Booth, her rival for the affections of Mr. X, put
burning newspaper through the letterbox of Booth’s house and caused the death of two of her
children. She claimed that she had not meant to kill but had foreseen death or grievous bodily
harm as a highly probable result of her actions. Ackner J directed the jury that the defendant
was guilty if she knew that it was highly probable that her act would cause at least serious
bodily harm. Although Lord Hailsham LC stated that he did not think that foresight of a high
degree of probability is at all the same thing as intention, and it is not foresight but intention
which constitutes the mental element in murder, the House of Lords (by a 3-2 majority), held
that foresight on the part of the defendant that his actions were likely, or highly likely, to
cause death or grievous bodily harm was sufficient mens rea for murder.

R v Walker and Hayles (1990) 90 Cr App R 226.

The defendants threw their victim from a third floor balcony. At their trial for attempted
murder the trial judge directed the jury that they could infer intention if there was a high
degree of probability that the victim would be killed and if the defendants knew “quite well
that in doing that there was a high degree of probability” that the victim would be killed. The
defendants appealed on the ground that the trial judge was confusing foresight of death with
an intention to kill and should have directed the jury in the Nedrick terms of “virtual
certainty”. The Court of Appeal did not accept that the reference to “very high degree of
probability” was a misdirection. However, Lloyd LJ stated that in the rare cases where an
expanded direction is required in terms of foresight, courts should continue to use virtual
certainty as the test, rather than high probability.
Chapter 3
Remedies for tort
Introduction:
Any matters in which legal rights are involved remedies are given to the subjects in a society
to ensure justice and peace in that particular state. Remedies are the compensation given to
a person for the loss he has suffered from, it may be awarded to any person in several ways
like it may be ordered by the court, granted by judgement after trial or hearing, by
agreement (settlement) between the person claiming harm and the person who has caused
it, and by the automatic operation of law. There are some specific kinds of remedies
available for the citizens of a state some remedies involve some particular acts to be
performed or some acts to be prohibited while others involve some amount of money to be
paid as damages for the loss other party has suffered due to injury or breach of contract,
some remedies need to be proved by the courts in form of declaration of rights of parties
and an order to honor them. An “extraordinary remedy” is the one in which judge assign
any specific post to a person to control the situation or problem which has occurred, such as
appointment of a referee, master or receiver to investigate, report or take charge of
property. A “provisional remedy” is the one which is awarded by the court temporarily in
order to safeguard a party from irreparable damage while a law suit or petition is pending. 2

Definition of Remedies in Law of Torts:

The manner in which a right is enforced or satisfied by a court when some harm or injury,
recognized by society as a wrongful act, is inflicted upon an individual.

Kinds of remedies:

Remedies of torts are usually of two kinds namely,

1. Judicial Remedies.
2. Extra judicial Remedies.

Judicial Remedies
Judicial remedies are those remedies which are awarded to a party by court while extra
judicial remedies are those which are available to a party by his own act alone, in certain
cases of torts. Judicial remedies are further divided into three main types:

A. Damages
B. injunction
C. specific restitution of property

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A. Damages

Damages, or legal damages is the amount of money paid to the aggrieved party to bring them
back to the position in which they were, before the tort had occurred. They are paid to a
plaintiff to help them recover the loss they have suffered. Damages are the primary remedy in
a cause of action for torts. The word “damages” should not be confused with the plural of the
word “damage”, that generally means ‘harm’ or ‘injury’.

Types of damages

Depending upon the ‘objective’ of the compensation, that is, whether the plaintiff is to be
compensated or the defendant has to be ‘punished’, there are 4 types of damages:

1. Contemptuous– contemptuous damages are also called ignominious damages. The

amount of money awarded by the court in this case is very low, as to show the court’s
disapproval, that is, when the plaintiff himself is at some fault and cannot wholly be
said to be ‘aggrieved’.
2. Nominal– Nominal damages are awarded when plaintiff’s legal right is infringed, but
no real loss has been caused to him. For example, in cases of trespass, when damage
has not been caused, a legal right is still infringed. Here, the objective is not to
compensate the plaintiff.
3. Substantial-Substantial damages are said to be awarded when the plaintiff is
compensated for the exact loss suffered by him due to the tort.
4. Exemplary/Punitive– These are the highest in amount. Punitive damages are
awarded when the defendant has excessively been ignorant of the plaintiff’s rights and
great damage has been caused to the defendant. The objective here is to create a
public example and make people cautious of not repeating something similar.3

Rule of double action

Where plaintiff suffers more than on damage on account defendant conduct Court gives relief
in a consolidated from instead of giving separate reliefs for each individual tort committed.
so, if plaintiff loses one of his teeth from a clenched first given by the defendant also a hand
is lost in the same action and at the same time the former cannot then bring separate action
for both the damage against the latter. Similarly, in the plaintiff latter thinks that extent of his
damage could not be properly explained to the court and in fact it could have been received,
even greater or much more then what has been received, even then he cannot bring separate
action for the same. This is called rule of double action.4

Purpose of Damages in Torts

The main object behind remedying by damages is to bring the plaintiff back into the position
that he/she was in before the injury due to the tort occurred, or in other words, to bring him
back to the position he would have been in, if the tort did not ever occur.

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B. Injunctions

Injunctions involve the orders awarded by the courts which either require or restrain
performance of a specific act in order to provide some effect to the legal rights of the
applicant. An injunction which prevents some sorts of activity is said to be prohibitive in
nature while mandatory injunctions are those in which the defendant has performed omission
to act or has infringed the rights of applicant.

Types of injunctions: there are three types of injunctions:

1. Temporary injunction: In temporary injunction court orders prohibition of an act by a

party to lawsuit unless there has been a trial or other court action. Its purpose is to
maintain status quo and to prevent irreparable damage and third function of such kind of
injunction is to subject matter of that particular litigation which is in process until the trial
is over.
2. Perpetual injunction: Some injunctions may also require some specific period of time in
which that specific injunction is in force. A perpetual injunction is given after a series of
complete court sessions on its full merit. As merits within the case are being discussed in
the court and are made clear to establish relationships between the two parties.

3. Mandatory injunctions:

They are of two kinds:

1.     Mandatory restorative injunction

2.     Mandatory enforcing injunction

Mandatory restorative injunction: In this type of injunction defendant is supposed to repair

consequences of any wrongful act he has committed. In order to regulate such kind of
injunction plaintiff needs to prove where wrongful act has not occurred but he was merely
threatened.

Mandatory enforcing injunction: This type of injunction allows the defendant to perform
some positive act which he has promised to perform, in such kind of injunction court needs to
be satisfied that the agreement between the defendant and plaintiff is specifically enforceable
and it is just and equitable to grant the particular injunction

C. specific restitution of property

The third judicial remedy available in the Law of Torts is that of Specific Restitution of Property.
Restitution means restoration of goods back to the owner of the goods. When a person is wrongfully
dispossessed of his property or goods, he is entitled to the restoration of his property. 5

2.Extra-Judicial Remedies

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When a person can lawfully avoid or remedy himself without the intervention of courts, the
remedies are called extra-judicial remedies. In this, the parties take the law in their own
hands. Some examples are:

Expulsion of trespasser

A person can use a reasonable amount of force to expel a trespasser from his property. The
two requirements are:

 The person should be entitled to immediate possession of his property.

 The force used by the owner should be reasonable according to the circumstances.

Illustration: A trespasses into B’s property. B has the right to use reasonable force to remove
him from his property and re-enter himself.

Re-entry on land

The owner of a property can remove the trespasser and re- enter his property, again by using
a reasonable amount of force only.  

Re-caption of goods

The owner of goods is entitled to recapture his/her goods from any person whose unlawful
possession they are in. Re-caption of goods is different from specific restitution in that it is an
extra-judicial remedy, in which the person need not ask the court for assistance, instead, takes
the law in his own hands.

Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to use

reasonable force to get them back from A.

Abatement

In case of nuisance, be it private or public, a person (the injured party) is entitled to remove
the object causing nuisance.

Illustration: A and B are neighbors. Branches of a tree growing on A’s plot enter B’s
apartment from over the wall. After giving due notice to A, B can himself cut or remove the
branches if they’re causing him nuisance.

Distress Damage Feasant

Where a person’s cattle/other beasts move to another’s property and spoil his crops, the
owner of the property is entitled to take possession of the beasts until he is compensated for
the loss suffered by him.6

Conclusion
In law of torts, it may or may not be essential to prove the existence of mental element or
motive or mala-fide intent to fix liability upon tort feasor. In tort, the liability can be incurred
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regardless of whether the injury was inflicted intentionally or by accident. But there may
situations where it has to be seen how essential mental element is in determining tortuous
liability.
In torts, the object behind remedying a party is to take the aggrieved party back to the status or
position that they were enjoying before the occurrence of tort. It is not to punish the defendant, as
in crime. Remedies can be judicial and extrajudicial. When due process of law is required for a party
to gain remedy, and the courts are involved, the remedies are called judicial remedies. When the law
is taken in his/her own hands by the parties, they are called extra-judicial remedies.

Bibliography
1) https://simple.m.wikipedia.org/wiki/Tort?fbclid=IwAR1vMKJbo8-
7MT1PPr1Pt98iNvuUEot2-eBMU3iVs2cYx1NlkzBg18JpGTc
2) https://www.youtube.com/watch?v=ICHP_OsrO1Q&feature=youtu.be
3) https://peachyessay.com/sample-essay/remedies-in-law-of-torts/?
fbclid=iwar0emhaggh_ylho0t39cakpvpp6p31tsfdbtbi7ngdueiwz4erwvmfkabqq
4) https://blog.ipleaders.in/remedies-of-tort-law/