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Introduction to Study of Torts

Prof. (Dr.) C J Rawandale
Professor, Symbiosis Law School, NOIDA
+
Background

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n Ubi Societas, Ibi Jus – wherever there is society, there is law.

n Man being a rational animal, order and peace are his age old aspirations.
Order connotes uniformity, continuity and consistency. Its reverse is disorder,
confusion, tumult and chaos resulting in anarchy which in turn brings
‘disintegration’.

n “Without order and peace, coherence for men is impossible, without it

civilization is unattainable, injustice is unchecked and triumphant and the life
of men is,‘solitary, poor, nasty, brutish and short” - Hobbes.

n Law is hostile to anarchy and despotism as it is in essence a restraint upon

these arbitrary powers. Disintegration affects human ability and happiness
adversely.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ 4

n Infractions of law are divided into n injuries ex contractu

two classes:
• Injuries which arise due to
• Public Injuries violations of contractual duties
• Private Injuries

n Private injuries fall into two

classes:

• injuries ex contractu n injuries ex delicto

• injuries ex delicto
• Injuries which arise from violation
of duties imposed by law

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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Introduction to Study of Torts

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n The word ‘tort’ is the French equivalent of the English word ‘wrong’ and Roman term
‘delict’. It is derived from the Latin word ‘Tortum’ which means ‘twisted’ or
‘crooked’ act, i.e. a deviation from straight or right conduct.

n The main aims of law of torts are:

• To define individual’s rights and duties in the light of prevalent standards of

reasonable conduct and public convenience.

• Compensation of victim/s or their dependent/s.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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n “[T]he overall object of tort law is to define

Fairchild v Glenhaven Funeral cases in which the law may justly hold one
Services Ltd
party liable to compensate another” - Lord
[2002] UKHL 22; [2003] 1 A.C. 32 Bingham of Cornhill.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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“Truly speaking entire law of Torts is founded and

structured on morality that no one has a right to
injure or harm intentionally or even innocently.
Jai Laxmi Salt Works (P) Ltd. V. Therefore it would be primitive to class strictly
State of Gujarat
or close finally the ever expanding and
(1994) 4 SCC 1 growing horizon of tortuous liability. Even for
social development, orderly growth of the
society and cultural refineness, the liberal
approach to tortuous liability by courts is more
conducive” - Sahai, J. .

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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Definitions

9/29/21 Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 9

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n “Tort is a civil wrong which is not
exclusively breach of contract or
breach of trust” - Section 2 (m)
Limitation Act, 1963.
n “A tort is an infringement of a
right in rem of a private individual,
giving a right of compensation at
the suit of the injured party” –
Fraser
Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA
n “A tort is a civil wrong for which
the remedy is a common law
action for Unliquidated damages
and which is not exclusively the
breach of a contract, or the breach
of a trust, or the breach of other
merely equitable obligation” –
Salmond
n “Tortious liability arises from the
breach of duty primarily fixed by
law; this duty is towards persons
generally and its breach is
redressible by an action for
Unliquidated damages” –
Winfield
29/09/21
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Concepts

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n Person n Liability

• “A person is any being whom the law regards
as capable of rights and duties” - Salmond.
• “A person is an entity on which rights and
duties may be attributed”- Erray.
• These two definitions show that the concept of
personality is linked with the conception of
right.
• Liability arises from breach of duty or a
wrong. It is something which a person must do
or suffer on account of his failure to do which
he ought to have done (duty).
• A person has choice in fulfilling his duty
whereas liability arises independent of one’s
choice.

Kinds of Person

nNatural Person: - A natural person is a being on whom law attributes personality in accordance with
reality and truth.

•“…such a human being as is recognized by the law as capable of rights and duties- in language of
Roman law is having a status” - Holland.

nLegal Person: - Legal persons are beings, real or imaginary, to whom the law attributes personality by
way of fiction, when there is none in fact.

•“Legal
person is any subject matter other than human beings to which law attributes personality” -
Salmond.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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Distinction between Torts & Crime

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Law of Torts Law of Crimes

1. Tort is less serious wrong 1. Crime is more serious wrong.

2. Generally speaking, intention does 2. In case of Crime one must prove

not form an essential element to both act as well as intention.
make one liable under Law of Torts.

Exception: Doctrine of Strict Liability Exception: Doctrine of Strict Liability

3. Tort being a private wrong, the 3. The criminal proceedings against

injured party himself has to file a suit the wrongdoer are not brought by
as a plaintiff. the injured party but by the State.

Exception: Public Interest Litigation Exception: Section 497 Adultery;

Section 499 IPC Defamation

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ 15
Law of Torts
4. The plaintiff may agree to
compromise with the tort-feasor and
withdraw the suit filed by him.
5. The object of law is payment of
compensation i.e. to make good the
loss suffered by him.
Exception: Under Section 57 Cr.P.C. a
judgment debtor may be arrested
and imprisoned in execution of a
decree. Such a person is released
even before the expiration of fixed
term, if the decree is satisfied.
Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA
Law of Crimes
4. In general the compounding of
offence is considered to be unlawful.
Exception: Section 320 Cr.P.C. gives a
list of compoundable offences and
the persons by whom particular
offences are compoundable.
5. The object of law is punishment of
the offender.
Exception: Section 357 Cr.P.C. 1973
even a Criminal Court while passing
judgment may order that the injured
party may be paid compensation out
of the fine imposed.
29/09/21
+ n While assessing the recommendations of the
committee headed by Mr. F S Nariman, the
Supreme Court identified the relationship
between Torts and Crimes as follows:

• "There is a connection between tort and crime -

the purpose of the criminal law is to protect the
public interest and punish wrongdoers, the
purpose of tort-law is to vindicate the rights of
In Re: Destruction of Public and the individual and compensate the victim for
Private Properties v State of Andhra
loss, injury or damage suffered by him:
Pradesh
however - the distinction in purpose between
2009 Indlaw SC 757 criminal law and the law of tort is not entirely
crystal-clear, and it has been developed from
case-to-case. The availability of exemplary
damages in certain torts (for instance) suggest
an overtly punitive function -but one thing is
clear: tort and criminal law have always shared
a deterrent function in relation to wrongdoing.”

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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Felonious Torts | CrimeTorts

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n Sometimes, the same set of facts may constitute both a tort and a crime. Such
wrongs are called as “Felonious Torts”.

n The civil and criminal remedies in such a case are not alternative but are
concurrent.

n Illustration: Defamation, Negligence, Nuisance etc.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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Distinction between Torts & Contract

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Law of Torts Law of Contract

1.Violation of ‘right in rem’ 1.Violation of ‘right in personam’

2. The duty is primarily fixed by law 2. The duty is fixed by the parties to
the contract with their free consent

3.Damages are always Unliquidated. 3. Damages may be liquidated or

Unliquidated.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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Wrong Amounts To Both – Tort &
Breach of Contract

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n Due to negligence of a driver, a railway passenger is injured, the railway

authorities are liable for the breach of the contract of safe carriage, and there
is also tort of negligence which results in damage to the passenger.

n If I leave my horse with my neighbour for one week and go out and the
neighbour allows the horse to die of starvation, there is breach of contract
inasmuch as the bailee has failed to exercise due care in the matter, and the
bailee has also committed tort of negligence.

n One must remember that the plaintiff cannot claim the damages twice over.
He has a choice either to sue for the breach of contract or for the commission
of tort.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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Doctrine of Privity of Contract and
Exception thereto

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n When A’s wrongful act results in the breach of a

Winterbottom v. Wright
(1842) 10 M & W. 109
contract which he had entered into with B and
also the commission of a tort against C, it was
thought that just like B, C has also to show
Privity of contract before he can bring an
action for tort.

• This rule lost its sanctity in 1932.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ n A went to a restaurant with a woman friend and
bought one bottle of ginger beer manufactured
by the defendants. The woman consumed part
of the contents but when the remainder was
poured into the glass, she observed the
decomposed body of a snail in it. The ginger
beer bottle, being made of dark opaque glass
and sealed with metal cap, the presence of
snail could not have been observed earlier.

Donoghue v. Stevenson
n The woman brought an action against the
manufacturer for negligence and alleged that
(1932) A.C. 562. by taking a part of the contaminated drink, she
had contracted serious illness.

n The House of Lords held that the manufacturer

owed her a duty to take care that the bottle did
not contain noxious matter injurious to health.

n Referring to the liability of the manufacturer of

food articles Lord Macmillan observed: “The
duty, in my opinion, he owes to those whom he
intends to consume his product”.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

 There was a contract between Lufthansa, a German

+ Airlines and Hotel Oberoi Inter-Continental of Delhi for

the stay of the crew of Lufthansa as guests in the hotel.

The plaintiff Klaus Mittelbachert, a co-pilot in Lufthansa

stayed in the hotel for a few days. During his stay, as a
plaintiff took a dive in a swimming pool in the hotel, due
to defective design of the swimming pool, his head hit
the bottom of the pool and he received serious head
injuries. As a consequence of that, he was paralyzed and
continued in agony for 13 years before he died.

Klaus Mittelbachert v. East India In an action for damages by the plaintiff, one of the
Hotels Ltd. defences pleaded was that he was a stranger to contract,
as the contract for stay was made between the employer,
AIR 1997 Del 201.
i.e. Lufthansa and the hotel.

The plea was rejected. It was held that he could sue

under contract as a beneficiary of the contract. Moreover,
for an action under Law of Torts, for compensation the
plea of stranger to contract was irrelevant.

Due to hazardous nature of the premises, the rule was

absolute liability was applied and the defendants were
required to pay exemplary damages amounting to 50 lac
rupees.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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Essentials Of A Tort

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1. There must be some act or

omission on the part of the defendant

n What Constitutes a Tort?

2. The act or omission should result

in legal damage (Injuria), i.e.
violation of a legal right vested in the
plaintiff.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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‘Act’ or ‘Omission’

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n In order to make a person liable n Illustration:

for a tort, he must have done some
act which he was not expected to • A commits the act of trespass or
do, or, he must have omitted to do publishes a statement defaming
something which he was supposed another person, or wrongfully
to do. detains another person; he can be
made liable for trespass,
n One must note that the wrongful defamation or false imprisonment,
act or a wrongful omission must be as the case may be.
one recognized by law. If there is a
mere moral or social wrong, there
cannot be a liability for the same.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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n If a corporation, which maintains a public park,

Glasgow Corporation v. Taylor
(1922) 1 A.C. 44
fails to put proper fencing to keep the children
away from a poisonous tree and a child plucks
and eats the fruits of the poisonous tree and
dies, the Corporation would be liable for such
omission.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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n Municipal Corporation, having control of a

Municipal Corporation of Delhi v. clock tower in the heart of the city does not
Subhagawanti keep it in proper repairs and the falling of the
same results in the death of a number of
AIR 1966 SC 1750 persons, the Corporation would be liable for its
omission to take care in the matter.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ ‘Fault’ or ‘Negligence’ or ‘Wrongful
Intent’

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n Liability Of A Person n Intentional aggression upon

other’s person or property

n Negligent interference with n Unintended, non-negligent

other’s person or property interference with person or
property i.e. ‘no fault liability’
or ‘strict liability’

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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‘Intention’ – ‘Negligence’

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Intention Negligence
n Intention is an internal fact, n Negligence constitutes an
something which passes in the independent basis of tort’s
mind and direct evidence of which liability. It means which creates a
is not available. risk of causing damage, rather
than the state of mind.

n An act is intentional as to its n According to Winfield,

consequences if the person “negligence as a tort is the breach
concerned has the knowledge that of a legal duty to take care which
they would result and also the results in damage, undesired by
desire that they should result. the defendant to the plaintiff”.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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‘Legal Injury’

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Injuria Sine Damnum

n In order to be successful in an
action for tort, the plaintiff has to
prove that there has been a legal
damage caused to him .

n In other words, unless there has

been violation of a legal right,
there can be no action under law
of torts.

Damnum Sine Injuria

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ 39

Tort
Actionable Per Se Actionable On Proof Of Damage
n Trespass to land is actionable even n If a claimant is wrongfully
though no damage has been detained against his will, he will
caused as a result of the trespass have a claim for substantial
damages for wrongful
imprisonment even if no
consequential loss was suffered
upon the detention.

n If a tenant makes improvements to

the property leased without the
right to do so, the tenant commits
the tort of waste and is liable for
damages even though the
premises may be improved and
rendered more valuable by the
alterations.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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‘Injuria Sine Damnum’

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n ‘Injuria Sine Damnum’ means violation of a legal right without causing any
harm, loss or damage to the plaintiff.

n Injuria - Infringement of a right conferred by law on the plaintiff or an

unauthorized interference, howsoever trivial, with the plaintiff’s right

n Damnum - Substantial harm, loss or damage in respect of money, comfort,

health or the like

n Sine - Without

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ n The plaintiff was a qualified voter at a
Parliamentary election. The defendant, a
returning officer wrongfully refused to take
plaintiff’s vote. The Plaintiff suffered no damage
as the candidate for whom he wanted to vote
won the election in spite of that. The defendant
was held liable.

Ashby v. White n The Court of King’s Bench by majority rejected

(1703) 2 Lord Raym 938; (1703) 1 Sm.
L.C. 13th ed., 253
the claim. Holt C. J. dissented: “Surely every
injury imports a damage, though it does not
cost the other party one farthing, and it is
impossible, to prove the contrary; for a damage
is not merely pecuniary but an injury imports a
damage, when a man is thereby hindered of his
rights.”

n On appeal to the House of Lords, majority

upheld Hold C. J.’s dissent. The defendant was
held liable.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ n
Bhim Singh v. State of J. & K.
AIR 1986 SC 494
The petitioner, an M.L.A. of Jammu & Kashmir,
was wrongfully detained by the police while he
was going to attend the Assembly session.
Further he was not produced before the
Magistrate within the requisite period. As a
consequence of this, he was deprived of his
constitutional right to attend the Assembly
session. There was also violation of
fundamental right to personal liberty
guaranteed under Article 21 of the Constitution.

n By the time the petition was decided by the

Supreme Court, Bhim Singh had been released,
but by way of consequential relief, exemplary
damages amounting to Rs. 50,000 were
awarded to him.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ nMr Watkins was a prisoner serving a sentence of life
R. v. Deputy Governor of Pankhurst
Prison, ex p. Hague
[1992] 1 A.C. 58
Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA
imprisonment. Three prison officers acting in bad
faith opened and read his incoming correspondence
relating to legal proceedings both actual and
contemplated.
nTheir conduct was outside of the privilege to open a
prisoner's correspondence conferred by the Prison
Rules. These Rules do not confer private rights upon
prisoners. Mr Watkins was made no worse off by
their conduct; indeed the trial judge concluded that
he “appears to thrive on these conflicts”.
nThe Court of Appeal, overturning the decision of
the trial judge, held that misfeasance in a public
office was actionable in damages where the
defendant had interfered with a “constitutional”
right, here the claimant's right of access to court.
nThe House of Lords unanimously allowed the
appeal, requiring that the claimant establish loss
before the claim could be brought.
29/09/21
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nIt was observed that though in the case of 'Injuria
sine Damnum', nominal damages are usually
awarded and this principle is applicable to cases
of trespass of immoveable property, when there
Sain Das v. Ujagar Singh
has been unjustifiable intrusion on property in
AIR 1940 Lah 21 possession of another, the rule cannot be
extended to every case of attachment of property
irrespective of the circumstances.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

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‘Damnum Sine Injuria’

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n Damnum Sine Injuria means ‘damage is not coupled with an unauthorized

interference with the plaintiff’s lawful right.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+

n The defendant, a schoolmaster, set up a rival

Gloucester Grammar School Case
(1410) Y.B. Hill 11 Hen, 4 of 47, P.21, 36
school to that of the plaintiffs. Because of the
competition, the plaintiffs had to reduce their
fees from 40 pence to 12 pence per scholar per
quarter. Thus claimed the compensation for the
loss caused.

n It was held that the plaintiffs had no remedy for

the loss thus suffered by them.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+

n A number of steamship companies combined

together and drove the plaintiff company out of
the tea-carrying trade by offering reduced
Mogul Steamship Co. v. McGregor
Gow and Co. freight.
(1893) A.C. 25
n The House of Lords held that the plaintiff had
no cause of action as the defendants had by
lawful means acted to protect and extend their
trade and increase their profits.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ n The plaintiff contended that the film “Jai
Santoshi Maa” hurt the religious feelings of the
plaintiff in so far as Goddesses Saraswati,
Laxmi, and Parvati were depicted as jealous
and were ridiculed and thus sued for a
permanent injunction against the defendants to
restrain them from exhibiting the film.
Ushaben v. Bhagyalaxmi Chitra
Mandir n It was observed that hurt to religious feelings
had not been recognized as a legal wrong.
AIR 1978 Guj. 13
n Moreover, no person has a legal right to
enforce his religious views on another or to
restrain another from doing a lawful act, merely
because it did not fit in with the tenets of his
particular religion.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+

n “…proprietor of a cinema theatre cannot

J. M. Desai v. Roshan Kumar
AIR 1976 SC 578
challenge under Art. 226 of the Constitution of
India the 'No objection certificate' granted by
the District Magistrate in favour of a rival in the
trade on the ground that it will lead to financial
loss.”

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ n Petitioner, a licence holder of petty diesel
dealer in village Majhole District Moradabad,
has filed this writ petition challenging the
advertisement for grant of another licence
published in a newspaper, for the same village.

n His grievances that the demand of diesel is not

Om Saran v Sub-Divisional
Magistrate, Chandausi,
Moradabad and Another
1994 Indlaw ALL 301
n The Court held that ‘The letter is from the
such so as to require grant of additional licence
for the sale of diesel, and if such a licence is
granted it will cripple his business.
Government to all the District Magistrates of
this State, whereby guidelines for granting
licence of petty diesel dealer, have been laid
down. The petitioner cannot enforce those
guidelines. It is a matter between the
Government and its District Magistrates. This
letter does not confer any right on the
petitioner so as to challenge the grant of new
licence to other person.’

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ n
Messrs Northern Plastics Limited
v Hindustan Photo Films
Manufacturing Co. Limited
1997 Indlaw SC 1018
Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA
The appellant's claimed that the setting up of a
rival cinema house in the town will adversely
affect his monopolistic commercial interest,
causing pecuniary harm and loss of business
from competition and thus challenged the grant
o the no-objection certificate issued to the
respondent.
n The Supreme Court held that ‘such harm or loss
is not wrongful in the eye of law, because it
does not result in injury to a legal right or a
legally protected interest, the business
competition causing it being a lawful activity.
n Juridically, harm of this description is called
‘Damnum sine Injuria’’.
n It further held that ‘The reason why the law
suffers a person knowingly to inflict harm of
this description on another, without holding
him accountable for it, is that such harm done
to an individual is a gain to society at large’.
29/09/21
+ n As Respondent is permitted to set up her retain
outlet within one-kilometer radius of the
appellant's outlet, he complained that his
business interest would be adversely affected.

n The Madras High Court held that the appellant

N. Balasubramaniam and Others v
Government of Tamil Nadu and
Others
2007 Indlaw MAD 1323
has no locus standi at all to complain against
the setting up of a rival retail outlet by the
fourth respondent, near his place of business,
on the ground that would affect his business
interest, inasmuch as the damage, if any,
suffered thereby was Damnum sine Injuria-
damage without infringement of legal right.

n It further held that ‘this will only result in

promoting competition among the traders,
which is good for the consumers. Merely
because some of the customers may switch
over to the rival retail outlet does not mean that
public interest will suffer rather, in our opinion,
it will benefit the consumers because, when
there is competition, the businessmen are
compelled to provide better quality products at
reasonable rates.’

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+
‘Ubi Jus Ibi Remedium’

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+ 56

n Ubi Just Ibi Remedium – ‘Where n Whenever the right is violated the
there is a right there is remedy’ person whose right has been
infringed has remedy against the
person who has violated it.

n This principle explains about the n It should however be noted that

right of an injured person to the maxim does not mean that
damage which brings such there is legal remedy for every
wrongful act within the category of moral or politic wrong.
torts.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ ‘Malfeasance’| ‘Misfeasance’ |
‘Nonfeasance’

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+ 58

n Malfeasance: n Nonfeasance:

• The term ‘malfeasance’ applies to

the commission of an unlawful act.
• It is generally applicable to those
unlawful acts, such as trespass,
which are actionable per se and
do not require proof of intention or
motive.
• The term ‘non-feasance’ applies to
the omission to perform some act
when there is an obligation to
perform it.
n Misfeasance:

• The term ‘misfeasance’ is

applicable to improper
performance of some lawful act,
for example when there is
negligence.

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ 59

Questions, If any…

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21

+ 60

Thank YOU!

Prof. (Dr.) C J Rawandale, Symbiosis Law School, NOIDA 29/09/21