MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

B.A.LL.B.(Hons.) Year-I, Semester-I: Academic Year : 2021-2022

Special Examination (for First Open Book Assessment) January-2022

Course Code and Name: Law of Torts

Name of Student: Prashant Shukla UID: UG21-81

1.

Mr. David is running a sports training centre in the city of Goa since 2010 where
children from various places enroll to take training for different sports. There was huge
demand to take admission in the centre of Mr. David. Mr. John, a renowned athlete
from Bombay, won several gold medals in international level wanted to start a sports
training centre in Mumbai. But due to heavy economic burden, Mr. John could not
open the centre in Mumbai. So Mr. John came to Goa and started the training centre.
As Mr. John started his sports training centre, the enrolment in the training centre of
Mr. David reduced substantially and Mr. David suffered a heavy monetary loss.
Thereafter Mr. David filed a suit for compensation against Mr. John. Will Mr. David
succeed in the Court? Discuss also the essential elements to constitute tort with the help
of relevant cases.

Answer.

No, Mr. David will not succeed in court. The facts of the present case involve actual damage
suffered without any legal injury i.e. Damnum Sine Injuria.

DAMNUM SINE INJURIA

Damnum sine injuria means an actual and substantial loss without infringement of any legal
right. In such a case no action lies. There are many harms of which loss takes no account and
mere loss of money's worth does not by itself constitute a legal damage.

The essential requirement is the violation of a legal right, i.e. Injuria Sine Damnum.

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There are many forms of harm of which the law takes no account,

1) Loss inflicted on individual traders by competition in trade,

2) Where the damage is done by a man acting under necessity to prevent a greater evil,
3) Damage caused by defamatory statements made on a privileged occasion,
4) Where the harm is too trivial, too indefinite or too difficult of proof,
5) Where the harm done may be of such a nature that a criminal prosecution is more
appropriate for example, in case of public nuisance or causing of death,
6) There is no right of action for damages for contempt of court.

"The mere fact that a man is injured by another's act gives in itself no cause of action; if the
act is deliberate, the party injured will have no claim in law even though the injury is
intentional, so long as the other party is exercising a legal right." Gloucester Grammar
School Case explains the point.

The defendant was the teacher, who was earlier teaching in Gloucester Grammar School, had
some dispute at the school and he left the school and opened his own school and even reduced
the fees from 40 pence (which was charged in Gloucester Grammar School) to 12 pence.
Also, due to the fame of the defendant in previous school the students left the old school and
joined the new school of the defendant. Thus, leading to loss in the business of plaintiff i.e.
the older grammar school. After this the employees of Gloucester Grammar School i.e. the
plaintiff sued the master for trespassing their franchise and demanded for damages against the
monetary loss caused due to him by opening school in that area.

In this case, the court held that the defendant who opened the rival school would not be held
liable for paying any damages to the plaintiff i.e. the Gloucester Grammar School. Though
there has been damages to the plaintiff because of the defendant, but still the plaintiff would
not be getting any damages suffered by plaintiff.

Also, this case does cover the essentials of maxim Damnum Sine Injuria, which means when
there is damage but there is no infringement of legal rights. In this case also, there was
damages caused to Gloucester Grammar school due to the act of defendant but still the
defendant did not violate any of the legal right of the plaintiff, thus fulfilling the essentials of

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Damnum Sine Injuria and exempting him from paying any damages for act which was not
legally wrong. As everyone has right to choose its profession and just on moral basis of one
the other cannot be denied of his legal right.

Establishing this case as the precedent many other judgements had been given under the same
principle which was laid in the judgement, one such case is H.R Krishnamurthy Vs. State of
Karnataka and others, case was related to liquor shop in the Anantapur Village, one of the
issue raised by the petitioner was that opening one more liquor shop in the village of such
small size would lead to a lot of competition and thus leading to monetary loss to the
petitioner, the court by giving the reference of Gloucester Grammar School held that the
plaintiff cannot debar defendant from establishing competition, also the plaintiff had failed to
bring any such law into court’s notice which debars the competition. And on these ground and
others the plaint was dismissed by the court.

In Mogul Steamship Co. v. McGregor Gow and Co., a number of steamship companies
combined together and drove the plaintiff company out of the tea-carrying trade by offering
reduced freight.  Since, the general principle of Damnum Sine Injuria expresses that ‘if one
exercises his common or ordinary rights, within reasonable limits, and without infringing
other’s legal right; such an exercise does not give rise to an action in tort in favour of that
other person.’ 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.

In Chasemore vs Richards,  the plaintiff was running a mill on his own land, and for this
purpose he was using the water of the stream for a long time. The Deft dug well in his own
land and thereby cut off the underground water supply of stream.  Through percolation the
water gathered in the well of deft. The quantity of water of stream was reduced and the mill
was closed for non availability of water. Plaintiff sued deft for damage. Hankford J. said :
Damnum may be abseque injuria, as if I have a mill and my neighbour builds another mill
whereby the profit of my mill is diminished, I shall have no action against him, although I am
damaged.....but if a miller disturbs the water from going to my mill, or does any nuisance of
the like sort, I shall have such action as the law gives".  The court ruled that in absence of any
infringement of legal right of plaintiff, no legal remedy would accrue to the plaintiff.

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2.

Mr. Donald along with his family went to see a horseracing which was organized by the
Horse Racing Club of Pondicherry. Mr. Donald bought the tickets and went inside the
stadium and found that it was full of spectators. The organizers had taken proper care
and precautions to avoid any accident or casualties inside the stadium. During the
racing, suddenly one of the racing horses galloped and entered into the spectators stand
where Mr. Donald’s family was sitting, resulting into severe injuries to them. In the
light of the above facts and circumstances explain with relevant cases the defences
available to the Racing Club of Pondicherry to avoid liability of such accident.

Answer.

The Horse Racing Club of Pondicherry can use the defence of Volenti Non Fit Injuria –
When a person consents to the infliction of some harm upon himself, he has no remedy for
that in tort. In case, the plaintiff voluntarily agrees to duffer some harm, he is not allowed to
complain for that and his consent serves as a good defence against him. No man can enforce a
right which he has voluntarily waived or abandoned. Consent to suffer the harm may be
express or implied.

When you invite somebody to your house, you cannot sue him for trespass, nor can you sue
the surgeon after submitting to a surgical operation because you have expressly consented to
these acts. Similarly, no action for defamation can be brought by a person who agrees to the
publication of a matter defamatory of himself. Many a time, the consent may be implied or
inferred from the conduct of the parties. For example, a player in the games of cricket or
football is deemed to be agreeing to any hurt which may be likely in the normal course of the
game. Similarly, a person going on a highway is presumed to consent to the risk of pure
accidents. In the same way, a spectator at a cricket match or a motor race cannot recover if he
is hit by the ball or injured by a car coming on the track. If a person is injured in an attempt to
stop a restive horse on another’s 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 it would

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plunge.” That is the position when the restive horse has caused no danger and there is no real
need for help. When the need for help is there, as in rescue cases, the position is different.

For the defence of consent to be available, the act causing the harm must not go beyond the
limit of what has been consented. A player in a game of hockey has no right of action if he is
hit while the game is being lawfully played. But if there is a deliberate injury caused by
another player, the defence of volenti cannot be pleaded. Similarly, if a surgeon negligently
performs operation, he cannot avoid the liability by pleading the defence an of consent.

In Hall v. Brooklands Auto Racing Club, the plaintiff was a spectator at a motor car race
being held at Brooklands on a track owned by the defendant company. During the race, there
was a collision between two cars, one of which was thrown among the spectators, thereby
injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the
danger being inherent in the sport which any spectator could foresee, the defendant was not
liable.

In Padmavati v. Dugganaika, while the driver was taking the jeep for filling petrol in the
tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel
to the axle gave way toppling the jeep. The two strangers were thrown out and sustained
injuries, and one of them died as a consequence of the same. It was held that neither the driver
nor his master could be made liable, firstly, because it was a case of sheer accident and,
secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti
non fit injuria was applicable to this case.

In Wooldrige v. Sumner, the plaintiff, who was a photographer, was taking photographs at a

horse show while he was standing at the boundary of the arena. One of the horses, belonging
to the defendant, rounded the bend too fast. As the horse galloped furiously, the plaintiff was
frightened and he fell into the horses’ course and there he was seriously injured by the
galloping horse. The horse in question won the competition. It was held that since the
defendants had taken due care, they were not liable. The duty of the defendants was the duty
of care rather than the duty of skill. The spectator in such a game or competition takes the risk
of such damage even though there may have been error of judgment or lapse of skill. Diplock
L.J. explained the position as follows:

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“…..the duty which he (the defendant) owes is a duty of care, not a duty of skill. Save where a
consensual relationship exists between a plaintiff and a defendant, by which the defendant
impliedly warrants his skill, a man owes no duty to his neighbour to exercise any special skill
beyond that which an ordinary reasonable man would acquire before indulging in the activity
in which he is engaged at the relevant time. It may well be that a participant in a game or
competition would be guilty of negligence to a spectator if he took part in it when he knew or
ought to have known that his lack of skill was such that even if he exerted it to the utmost, he
was likely to cause injury to a spectator watching him. No question of this arises in the
present case….. A person attending a game or competition takes the risk of any damage
caused to him by any act of a participant done in the course of and for the purpose of the
game or competition notwithstanding that such act may involve an error of judgment or a
lapse of skill, unless the participant’s conduct is such as to evince a reckless disregard of the
spectator’s safety.”

The defence of volenti non fit injuria was successfully pleaded in Thomas v, Quartermaine.
There, the plaintiff, an employee in the defendant’s brewery, was trying to remove a lid from
a boiling vat. The lid was stuck and by the plaintiff’s extra pull to it, it came off suddenly and
the plaintiff fell back into the cooling vat which contained scalding liquid. The plaintiff was
severely injured. The majority of the Court of Appeal held that the defendant was not liable
because the danger was visible and the plaintiff appreciated and voluntarily encountered the
same.

3.

Mr. Paul is regular morning walker. On the morning of January 3, 2021, he was walking
in the footpath of Beverly Road, Mumbai. Unfortunately he was knocked down by the
Government jeep of Collector while the car was going to the school to drop Collector’s
son. Mr. Paul subsequently died in the hospital. His wife, Mrs. Maria, filed a suit for
damages against the State and the Collector. In the light of the above facts and
circumstances discuss the liability of State for commission of tort by its servants with
relevant cases.

Answer.

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Vicarious Liability deals with cases where one person is liable for the acts of others. So in a
case of vicarious liability both the person at whose behest the act is done as well as the person
who does the act are liable. Thus, Employers are vicariously liable for the torts of their
employees that are committed during the course of employment. The common examples of
such a liability are:

(1) Liability of the 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 servant.
(4) Liability of the State or Liability of the Administration.

Constituents of Vicarious Liability

So the constituents of vicarious liability are:

(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.

In the present case, Collector’s employer i.e. the State will be liable as the dropping off
collector’s son to school was out of scope of the employment. It was not the case of
discharge of sovereign duty.

Sovereign immunity is a justification for wrongs committed by the State or its representatives,
seemingly based on grounds of public policy. Thus, even when all the elements of an
actionable claim are presented, liability can be avoided by giving this justification.

The doctrine of sovereign immunity is based on the Common Law principle borrowed from
the British Jurisprudence that the King commits no wrong and that he cannot be guilty of
personal negligence or misconduct, and as such cannot be responsible for the negligence or
misconduct of his servants. Another aspect of this doctrine was that it was an attribute of
sovereignty that a State cannot be sued in its own courts without its consent.

This doctrine held sway in Indian courts since the mid nineteenth century until recently. When
a genuine claim for damages is brought to the courts, and it is refuted by an ancient doctrine

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seemingly having no relevance, there is bound to be resentment and demands for review. The
Indian courts, in order to not let genuine claims be defeated, kept narrowing the scope of
sovereign functions, so that the victims would receive damages. The Law Commission of
India too, in its very first report, recommended the abolition of this outdated doctrine. But for
various reasons, the draft bill for the abolition of this doctrine was never passed, and thus it
was left to the courts to decide on the compatibility of this doctrine in accordance with the
Constitution of India.

Unlike the Crown Proceedings Act, 1947 (England), we do not have any statutory provisions
mentioning the liability of the State in India. The law in India with respect to the liability of
the State for the tortious acts of its servants has become entangled with the nature and
character of the role of the East India Company prior to 1858. It is, therefore, necessary to
trace the course of development of the law on this subject, as contained in article 300 of the
Constitution.

The position of State liability as stated in Article 300 of the Constitution is as under: Clause
(1) of Article 300 of the Constitution provides first, that the Government of India may sue or
be sued by the name of the Union of India and the Government of a State may sue or be sued
by the name of the State; secondly, that the Government of India or the Government of
a State may sue or be sued in relation to their respective affairs in the like cases as the
Dominion of India and the corresponding Provinces or the corresponding Indian States might
have sued or be sued, “if this Constitution had not been enacted”, and thirdly, that the second
mentioned rule shall be subject to any provisions which may be made by an Act of Parliament
or of the Legislature of such State, enacted by virtue of powers conferred by the Constitution.

Consequently, one has to uncover the extent of liability of the East India Company in order to
understand the liability parameters of the administration today because the liability of the
administration today is in direct succession to that of the East India Company.

The East India Company launched its career in India as a purely commercial corporation but
gradually acquired sovereignty. Therefore, in the beginning, the company did not enjoy the
immunity of the Crown. It was only when it acquired political powers that a distinction was
made between sovereign and non- sovereign functions.

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In Peninsular and Oriental Steam Navigation Company v. Secretary of State for India a
consideration of the pre-Constitution cases of the Government’s liability in tort begins with
the judgment of the Supreme Court of Calcutta in the case P. & O. Steam Navigation Co. v.
Secretary of State. The principle of this case holds that if any action was done in the exercise
of sovereign functions, the East India Company or the State would not be liable. It drew quite
a clear distinction between the sovereign and non-sovereign functions of the state.

The facts of the case were that a servant of the plaintiff’s company was traveling from Garden
Reach to Calcutta in a carriage driven by a pair of horses. The accident took place when the
coach was passing through the Kidderpore Dockyard which was Government Dockyard.
Some workman employed in the Government, Dockyard were carrying a heavy piece of iron
for the purpose of repairing a steamer. The men carrying the iron-rod were walking along the
middle of the road.

When the carriage of the plaintiff drove up nearer the coachman slowed its speed. The man
carrying the iron attempted to get out of the way, those in front tried to go the one side of the
road while those behind tried to go the other side of the road. The consequence of this was a
loss of the time, brought the carriage to close up to them before they had left the center of the
road. Seeing the horses and carriage they got alarmed and suddenly dropped the iron and ran
away. The iron fell with a great noise resulting in injuries to one horse, which startled the
plaintiff’s horses which thereupon rushed forward violently and fell on the iron.

The Company filed a suit against the Secretary of State for lndia for the damages for injury to
its horse caused by the negligence of the servants employed by the Government of India. The
Supreme Court of Calcutta by Sir Barnes Peacock C. J. held that the Secretary of State for
India was liable for the damages caused by the negligence of Government servants because
the negligent act was not done in the exercise of a sovereign function.

The Court drew a distinction between acts done in exercise of “non-sovereign power” that is,
acts done in the conduct of undertakings which might be carried on by private person-
individuals without having such power. The liability could only arise in case of “non-
sovereign functions”. The East lndia Company had a two-fold character –

(a) as a sovereign power and

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(b) as a trading company.

The liability of the Company could only extend to in respect of its commercial dealings and
not to the acts done by it in the exercise of delegated sovereign power. In the present case, the
damage was done to the plaintiff in the exercise of a non-sovereign function, i.e. the
maintenance of Dockyard which could be done by any private individual without any
delegation of sovereign power and hence the Government was liable for the torts of the
employees. The Secretary of State was not liable for anything done in the exercise of
sovereign powers.

In State of Rajasthan v. Vidyawati, the respondents filed a suit for the damages made by an
employee of a State and the case questioned whether the State was liable for the tortious act of
its servant – The Court held that the liability of the State in respect of the tortious act by its
servant within the scope of his employment and functioning as such was similar to that of any
other employer.

It was held in this case that the State should be as much liable for tort in respect of tortuous
acts committed by its servant within the scope of his employment and functioning as such,
like any other employer.

The facts of this case may shortly be stated as follows. In that case, the claim for damages was
made by the dependants of a person who died in an accident caused by the negligence of the
driver of a jeep maintained by the Government for official use of the Collector of Udaipur
while it was being brought back from the workshop after repairs. The Rajasthan High Court
took the view-that the State was liable, for the State is in no better position in so far as it
supplies cars and keeps drivers for its Civil Service. In the said case the Hon’ble Supreme
Court has held as under:

“Act done in the course of employment but not in connection with  sovereign powers of the
State, State like any other employer is vicariously liable.”

In the aforesaid case, the Hon’ble Apex Court while approving the distinction made in Steam
Navigation Co.’s case between the sovereign and non-sovereign function observed that the
immunity of crown in the United Kingdom was based on the old feudalistic notions of Justice,

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namely, that the King was incapable of doing a wrong. The said common law immunity never
operated in India.

State’s liability for the acts or omissions of statutory authorities arises only in cases where the
statutory authority acts outside his legal authority while purporting to act pursuant to the legal
authority conferred upon him and the act or omission, which causes or results in damage to a
person, is not within the ambit of the statutory protection, if any, contained in such
enactments. This rule is evolved for the obvious reason that an act done under a statute and in
accordance with the statute can never amount to tort as was said by the Supreme Court by
following cases.

The Court said, “A result flowing from a Statutory provision is never an evil”. “The
Government of India may sue or be sued by the name of the Union of India and the
Government of a State may sue or be sued by the name of the State and may, subject to any
provisions which may be made by Act of Parliament or of the Legislature of such State
enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their
respective affairs in the like cases as the Dominion of India and the corresponding Provinces
or the corresponding Indian States might have sued or been sued if this Constitution had not
been enacted.”

In N. Nagendra Rao v. State of A.P. , the Supreme Court held that when due to the negligent act
of the officers of the state a citizen suffers any damage the state will be liable to pay
compensation and the principle of sovereign immunity of state will not absolve him from this
liability. The court held that in the modern concept of sovereignty the doctrine of sovereign
immunity stands diluted and the distinction between sovereign and non-sovereign functions
no longer exists.

The court noted the dissatisfactory condition of the law in this regard and suggested for
enacting appropriate legislation to remove the uncertainty in this area. Rejecting the
contention of the state the Supreme Court held that the state was liable vicariously for the
negligence committed by its officers in the discharge of public duty conferred on them under
a statute. As regards the immunity of the state on the ground of sovereign function, the court
held that the traditional concept of sovereignty has undergone a considerable change in the

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modern times and the line of distinction between sovereign and non-sovereign powers no
longer survives.

No civilized system can permit an executive as it is sovereign. The concept of public interest
has changed with structural change in society. No legal system can place the state above the
law as it is unjust and unfair for a citizen to be deprived of his property illegally by the
negligent act of the officers of the state without remedy. The need of the state to have
extraordinary powers cannot be doubted. But it cannot be claimed that the claim of the
common man be thrown out merely because the act was done by its officer even though it was
against law.

The need of the state, the duty of its officials and the right of the citizens are required to be
reconciled so that the rule of law in a welfare state is not shaken. In the welfare state,
functions of the state are not the only defense of the country or administration of justice or
maintaining law and order but it extends to regulating and controlling the activities of the
people in almost every sphere.

The demarcation between sovereign and non-sovereign powers for which no rational basis
survives has largely disappeared. The court further said that sovereign immunity was never
available if the state was not involved in commercial or private function nor it is available
where its officers are guilty of interfering with life and the liberty of a citizen not warranted
by law.

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