NAME – ASHU DAGA

ENROLLMENT NO – 2021 - 010

SUBJECT – LAW OF TORTS
NATURE OF EXAM – END SEMESTER

Q.1. A Tort is uncodified in India. Would you want it to be codified? Why?

Answer-

Tort is derived from a Latin word ‘Tortum’ meaning twisted or unlawful. It is civil wrong, between two individuals,
with unliquidated damages, specifically containing a breach of duty that is fixed by law. It is an infringement of
a right in rem, and justifies a right to compensation. It is found in common law, however is uncodified.
Furthermore, torts do not involve breach of contract or trust.
Since time immemorial there has been a debate as to whether to condense the tort law by codifying it or subject it
to growth and evolution by keeping its ambit wide open and diverse. Codified law is simply the body of statutes
and ordinances — written laws passed by the legislative and administrative bodies. Uncodified laws are those that
originated from sources such as court decisions, customs and principles of jurisprudence (such as legal concepts
enshrined in Roman law in the European context).
Salmond was a proponent of Law of Torts which basically implies that he wanted tort to be a ‘specific number of
wrongs’. Indirectly he wanted it to be codified. He proposed the Pigeon Hole Theory, where each labelled tort was
a pigeon hole and only if the case fits in one of the holes, the case would be considered. However this didn’t mean
that new pigeon holes wont be established but it obviously restricted the scope to a certain extent.
Winfield proposed Law of Tort wherein the scope was wide. Every wrongful act would be treated as a wrong. He
believed that injury to neighbour allows him to sue in tort whatever the wrong may be and he may be liable if cannot
provide legal justification. Ashby vs White – ‘ubi jus ibi remedium’ (where there is a right there is a remedy –
when a person’s rights are violated they have an enforceable right to obtain compensation before a court). This
implies torts are infinitely various and not confined.
Lack of codification implies lack of statutory authority but the flexibility that current structure offers us overrides
this lack. The current structure is marked by absence of codification and thus is governed by the principles of justice,
equity and good conscience. The tort law in India is in the nascent stage therefore the judiciary has to take the
landmark cases of the English law as precedents. This is done after looking at the social ramifications and suitability
according to the Indian society.
A few reasons as to why Tort law should be uncodified –
o Uncodified law allows to evolve and adopt new situations.
o It allows to grow and adopt new cases and principles as presented.
 o One of the fundamentals of the Tort law being the Welfare legislation, I believe it should not be codified
so as to reap the maximum benefits out of this law.
o With constant developments taking place in the political, economic and social world it is imperative that
we don’t restrict the evolution that the uncodified structure allows.
o In the case of Jay Laxmi Salt Works (p) Ltd v the State of Gujarat, according to Justice Sahai, “Truly
speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to
close strictly or close finally the ever-expanding and growing horizon of tortious liability”. The flexibility
permits the modern views of the judges and the lawyers that are eventually shaping the tort law structure.
o Justice P.N. Bhagwati’s statement in the case M.C Mehta vs Union of India - “We have to evolve new
principles and lay down new norms which will adequately deal with new problems which arise in a highly
industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as
it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive
light from whatever source it comes but we have to build our own jurisprudence.” Thus he believed that the
legal situations would be ever evolving and so should be legal perspectives.
Conclusion
Therefore personally I would not want the Tort law in India to be codified as of now. It is essential for the tort law in
India to take shape and evolve prior to being condensed in statutory manner.

Q.2. Explain Nuisance and its types with the help of decided cases.
Answer –
Nuisance is an uncodified tort law and is derived from the French word ‘Nuire’ that means to hurt or annoy.
Fundamentally nuisance protects the owners or persons enjoyment of his property or some right in connection with it.
Basically nuisance is the injury to the right of a person in possession of property to undisturbed enjoyment of it and
result from an improper use by another person in his property.
Salmond defined nuisance as – “the wrong of nuisance consists in causing or allowing without lawful justification the
escape of any deleterious thing from his land or from elsewhere into land in possession of the plaintiff, e.g. water, smoke,
fumes, gas, noise, heat, vibration, electricity, disease, germs, animals.”
A nuisance is an injury to any right with respect to the possession but not the possession itself. For example - Right to
clean air is an incorporeal right over property not amounting to the possession of it, still a disturbance to this right can
amount to nuisance.
Nuisance is indirect in nature. It implies that where the thing is not material and tangible or where though material and
tangible, it is not direct act of the defendant but merely consequential on his act will amount to nuisance. For example
– The branches or roots of the tree hovering over anothers property but the tree planted in your own property would
amount to nuisance.
What will amount to Nuisance??
i. Wrongful Act – There should be a performance of a wrongful act in the eyes of a reasonable man.
ii. Damages, Loss, Inconvenience or annoyance caused to another – But such annoyance or inconvenience
should be more than just a sensitive personal discomfort. It should be substantial in the eyes of law.
Relevant Case law –
Halsey v. Esso Petroleum Co. Ltd – The defendant in this case dealt with the fuel oil. But the chimney from the boiler
house used to emit acid smuts containing sulphate and this was visible outside plaintiff’s house. The smuts used to
damage the clothes, paint of his car and also the pungent and sluggish smell of the acid used to cause effect to more than
a sensitive person. Also the noise from the boilers would be at its peak during the night hours. Thus plaintiff filed a suit.
The defendants were held liable due to the emission of acid smuts which restricted the rights with respect to the
enjoyment of the property.
Defences to Nuisance –
a) Prescriptive rights to commit a nuisance – If a person continues an activity on a land for more than 20 years,
he acquires the prescriptive rights to continue such an activity and would not be liable for nuisance.
b) Statutory Authority – The act performed under a statute is a defence for the nuisance.
Types of Nuisance –
A. Private Nuisance - Private nuisance is an unlawful interference or annoyance which cause damages to an
occupier or owner of land in respect of his enjoyment of the land.
Conditions for Private Nuisance –
a) Unreasonable Interference
b) Interference with use or enjoyment of the land
c) Damages
Case Laws-
Hollywood Silver Fox Farm Ltd v Emmett - A carried on the business of breeding silver foxes on his land. During the
breeding season the vixens are very nervous and liable if disturbed, either to refuse to breed, or to miscarry or to kill
their young. B, an adjoining landowner, maliciously caused his son to discharge guns on his own land as near as possible
to the breeding pens for the purpose of disturbing A’s vixens. Thus B was held liable and an injunction order was passed.
Radhe Shyam v Gur Prasad – The plaintiff was a resident of a premises on the first floor. On the ground floor was the
flour mill of the defendant. It was alleged that the noises were causing nuisance to plaintiff as it was severely affecting
their health. Thus keeping in mind that it was a residential area and the noise produced by the mill, the plaintiff was
entitled to an injunction against the defendants.
B. Public Nuisance - Public nuisance comprises of acts that either affect the public at large or some considerable
portion of it, thus interfering with the rights which members of the community might otherwise enjoy. Thus acts
which seriously interfere with the health, safety, comfort or convenience of the public generally or which tend
to degrade public morals have always been considered public nuisance. Obstructing a public road by digging a
trench is public nuisance. Public nuisance is defined in the Indian Penal Code and is thus does not give right to
a civil action. But if a plaintiff shows a particular injury to himself greater than the rest of the public he would
be provided damages under civil action.
In order for a plaintiff to bring a private action in respect to public nuisance –
1.He must show a particular injury to himself beyond that which is suffered by the rest of public i.e. he must show that
he has suffered some damage more than what the general body of the public had to suffer.
2. Such injury must be direct, not a mere consequential injury; as, where one is obstructed, but another is left open.
3. The injury must be shown to be of a substantial character, not fleeting or evanescent.
Case Laws-
Ram Raj Singh vs Babulal – The plaintiff, a doctor complained about the dust that entered the hospital and caused
discomfort to the patients. This dust was produced by the brick powdering mill and there was a visible thin red coating
on clothes that resulted from the dust. The court held that the dust was a public hazard bound to injure the health of
patients. Thus this amounted to public nuisance but the doctor was able to prove damage particular to himself, thus the
doctor was paid compensation and the brick powdering mill held liable for private nuisance towards the doctor.
Rose vs Milles – The defendant had moored his barge across the public navigable neck wrongfully thus causing
inconvenience to the public but the plaintiff had to suffer expenditure in unloading the cargo and transporting it to the
same land. Thus he managed to acquire special damages.
Winterbottom v. Lord Derby – The plaintiff in this case had filed a case against the defendant that he had to incur
specific expenditure due to the obstruction caused by the defendant. But the general public had to take another route and
suffer such expenditure. He was unable to prove special damages on his part and hence the was not awarded special
damages.

Q.3.Critically examine the development of law of ‘Remoteness of Damages’ and ‘Proximate cause’
through decided cases.

Answers –
Remoteness of damage
Definition – It refers to a legal test used for determining what type of loss is caused by the breach of duty may be
compensated by award of damages. Once a wrong has been proved, it is essential to determine quantum of liability.
This is where remoteness of damage principle plays a crucial role.
A damage may be caused by a single event or can be a result of consequences or a series of wrongs. Thus it might be
proximate, remote or too remote.
Causa Causans or Proximate cause – The plaintiff will succeed only when the damage is direct and the natural
consequence of the defendants act. ‘In jure non remota causased proxima spectator’ is a maxim that means that
only the immediate and not the remote cause should be considered.
Scott v. Shepherd – D threw a squib which fell on X who threw it to Y and he ultimately fell on H and exploded leading
to blindness in one eye to H. Here D was held liable. Though X and Y intervened but D’s act was considered as the
proximate cause.
Novus Actus Interveniens – It means the new act intervening. The defendant wont be liable for Novus actus
interveniens for the consequences.
Carsolegie Steamship Co. Ltd v. Royal Norevegian Government – The plaintiff’s ship collided with that of the
defendant’s due to the negligence of the defendant. The temporary repairs were performed but for permanent repairs
ship was taken to US but during the journey due to extreme weather conditions the condition of the ship worsened. Due
to this damages that might have taken 10 days took 51 days. Thus the plaintiff sued the defendant. But the defendant
was not held liable since the principle of non actus interveniens was applied and the natural acts were deemed to have
caused the consequence.
But again there was a question that where should the line be drawn to absolve the defendants from the liability due to
the remoteness of damage.

Hence there are two tests to determine remoteness:

1. Reasonable foresight – If the consequences of the wrongful act could have been foreseen by a reasonable man
then they are not too remote.

In the case Greenland v. Chaplin it was held that the liability of the defendant extends only to those
consequences which could have been foreseen by a reasonable man placed in the circumstances of the defendant.
Also it determined that the plaintiff must have also taken a adequate amount of care that reasonable man would.
But soon the test of reasonable foresight was replaced by the test of directness.

2. Test of directness – A person is liable for all the direct consequences of his wrongful act, whether he could
foresee them or not, because consequences that directly follow an act cannot be too remote.

Re Polemis Case – The defendant chartered a ship to carry cargo and due to a leakage in one of the cargos, that
consisted petrol in the tins, oil was collected in the hold of the ship. Now due to the negligence of the defendant’s
servant a plank fell in the hold and a spark was generated which caused the whole ship to burn. Now the owners
of the ship sued the defendants. But they took the defence of the test of reasonable foreseeability but the test of
directness was applied as the fire was the direct consequence of defendant’s negligence .

Reaffirmation of the reasonable foresight test – Wagon Mound Case – Wagon mound was an oil tanker
chartered by the defendant. At a certain distance some repairs were going with the use of wielding machine. But
due to the negligence of the defendants servants some oil got splilt and so plaintiff enquired whether repairs
could be continued and Defendant assured no danger. Two days after the molten metal fell on the cotton waste
and ignited. The plaintiff sued the defendant and applying the Re Polemis case judgement Defendant would
have been liable but court overruled the Re polemis case and applied the Reasonable foresight test, thus
absolving Defendant from the liability. The court said a fool is wise after the event but it isn’t the hindsight of
the fool but is the foresight of a reasonable man that mattered.

Donoghue v Stevenson- Proximate Cause – The bottle of ginger contained a decomposed snail in it. Lady after
noticing suffers from Gastro-entities. The action is brought against the manufacturer and later it was held that
the manufacturer had a duty of care that the bottle didn’t contain any noxious matter. Thus he was held liable.

Lord Atkin determined the Neighbour Principle – A neighbour is the one who is reasonably foreseeable to
get hurt in close proximity and a person is ought to reasonably have contemplation as to the acts or omissions
in question and their result to the neighbour.

Eggshell Skull – The rule states that the person who hit the eggshell skulled person would be liable not only
for the injury but also for the death, even though it was unforeseeable. Therefore he would be liable for the
extreme consequences to the eggshell skulled person and not only amount of harm a normal person would have
suffered.
Vosburg v Putney- Vosburg, who already had an injury to his leg was kicked by Putney on the same leg. Putney
was not aware of the fact that Vosburg was already injured and thus he kicked him lightly and Vosburg didn’t
even feel the pain immediately. But later a serious infection left him with a serious weakness in his leg for
lifetime. In this case though the injury was unforeseeable but the defendant was held liable. This is how the
eggshell skull theory developed. It was also used in the case Dulieu v. White & Sons.

These were the various applications of the Reasonable foreseeability and Proximate cause in the tort law.