LAW OF TORTS –

MODULE 1
Nature, Scope and
Objects of law of torts
BAL 166

SCHOOL OF LAW
CHRIST UNIVERSITY
Type of Legal System: Religious and Secular

Secular Legal System: Common Law system & Civil Law system

Points of Difference

Origin of English Common Law system: Early middle ages

Norman Conquest of England in 1066 by William , duke of Normandy

Common Law: Distinguishing the general law from local or group customs –
suggesting a universal law founded on reason and superior in type;

Important development during reign of Henry II: Separation of Church and State
– separation of tort and crime
Before 1066: no clear distinction between tort and crime;

Initially, there was concept of ‘wrong’ – Remedy was not

clearly defined – Punitive laws were not effective in England;

After 1066: new government was formed – Violence against

peace of King was considered to be punishable;

Distinction between Private Law and Public Law;

RIGHT – “interest protected by law”;

RIGHT – DUTY: Jural Co-relatives;

Liability: From whom are you going to claim compensation?

Injury – ‘violation of legal right’

Ubi jus ibi remedium

DEFINITION

“Tortious liability arises from the breach of a duty primarily fixed by law; this
duty is towards persons generally and its breach is redressible by an action for
unliquidated damages.” – Dr. Winfield

“It 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 other equitable obligation.” – Salmond

“It is an infringement of a right in rem of a private individual giving a right of

compensation at the cost of the injured party.” – Fraser.
Tort is a civil wrong;

Tort is other than a mere breach of contract or breach of trust;

This wrong is redressible by an action for unliquidated damages –

money compensation – impossible to undo the harm already
caused
MALFEASANCE, MISFEASANCE,
NON-FEASANCE
Malfeasance applies to the commission of an unlawful act, such as trespass,
which are actionable per se without proof of intention or motive.

Mis-feasance is improper performance of some lawful act, for example,

when there is negligence.

Non-feasance applies to omission to perform some act when there is an

obligation to perform it.
PRIVATE V. PUBLIC RIGHTS

Private rights belong to a particular person to the exclusion of the world at

large.

These rights are: a) rights of reputation; b) rights of bodily safety and

freedom; c) right of property – in other words, rights relative to mind, body
and estate.

Public rights include those rights, which belong in common to the members of
the State generally
RIGHTS IN REM v. RIGHTS IN PERSONAM

RIGHT IN REM CORRESPONDS TO A DUTY IMPOSED

UPON PERSONS IN GENERAL;

RIGHTS IN PERSONAM CORRESPONDS TO A DUTY

IMPOSED UPON DETERMINATE INDIVIDUALS;

RIGHT IN REM IS AVAILABLE AGAINST THE WORLD AT

LARGE AND GENERALLY NEGATIVE IN NATURE;

RIGHTS IN PERSONAM IS AVAILABLE AGAINST A

PARTICULAR PERSON OR PERSONS AND GENERALLY
POSITIVE IN NATURE.
RIGHT IN REM
This right protects interest against the
world at large.
I have a house. The people of the world
have a duty not to interfere with my
possession. Nobody has right to disturb my
possession and enjoyment.
It is called “real right”. Converse this right; It is also called as “personal right”.
there is a duty upon every person of the
world not to interfere with other’s rights.
It is available against an open or indefinite
class of persons.
RIGHT IN PERSONAM
This right protects an interest solely
against determinate individuals.
I let my house to Z-tenant. I have a right to
receive rent from my tenant. This right to
receive rent from my tenant. This right to
receive rent is a right in personam. The rest
of the world is not concerned with this
right.
Converse this right, there is a duty
imposed upon determinate individuals.
It is available only against a specific
person or persons.
 TORT v. CRIME
TORT CRIME

TORT IS AN INFRINGEMENT OF CRIME IS A BREACH OF PUBLIC

PRIVATE OR CIVIL RIGHTS RIGHTS AND DUTIES
BELONGING TO INDIVIDUALS AFFECTING THE WHOLE
CONSIDERED AS INDIVIDUALS. COMMUNITY CONSIDERED AS
COMMUNITY.

WRONGDOER HAS TO OFFENDER IS PUNISHED BY THE

COMPENSATE THE INJURED STATE IN THE INTERESTS OF
PARTY THE SOCIETY

THE ACTION IS BROUGHT BY THE PROCEEDINGS ARE

THE INJURED PARTY CONDUCTED IN THE NAME OF
THE STATE AND GUILTY
PERSON IS PUNISHED BY THE
STATE
 TORT v. CONTRACT
TORT CONTRACT
TORT RESULTS FROM THE AGREEMENT,
THE BREACH OF DUTIES, VIOLATION OF WHICH IS
NOT UNDERTAKEN BY KNOWN AS BREACH OF
THE PARTIES CONTRACT, IS MADE BY
THEMSEVES THE PARTIES WITH
THEIR FREE CONSENT
DUTIES IMPOSED ARE EACH PARTY OWES
NOT TOWARDS ANY DUTY ONLY TO THE
SPECIFIC INDIVIDUAL OTHER CONTRACTING
OR INDIVIDUALS BUT PARTY
THEY ARE TOWARDS
THE WORLD AT LARGE
UNLIQUIDATED LIQUIDATED DAMAGES
DAMAGES
 CONSTITUENTS OF TORT
1. THERE MUST BE SOME ACT OR OMISSION ON THE PART OF
THE DEFENDANT;

2. THE WRONGFUL ACT MUST GIVE RISE TO LEGAL DAMAGE OR

ACTUAL DAMAGE;

3. THE WRONGFUL ACT MUST BE OF SUCH A NATURE AS TO

GIVE RISE TO A LEGAL REMEDY IN THE FORM OF AN ACTION
FOR DAMAGES
Wrongful Act or Omission
He must have done some act which he was not expected to do so or must have
omitted to do something which he was supposed to do – positive wrongful act
– illegal omission.

Act of trespass or publishes a statement defaming another person or

wrongfully detains another person.

Corporation maintaining public park – fails to put a proper fencing to keep the
children away from a poisonous tree and a child plucks and eat fruits of a
poisonous tree and dies – Can the corporation be held liable for such
omission?
Legal Damage
Absolute and Qualified Right;

Violation of absolute right is actionable per se – without proof of any special

damage;

Violation of qualified right is actionable only on the proof of actual or special

damage;

Trespass

Nuisance / Negligence
“Injuria sine damno”
If there has been a violation of a legal right, the same is actionable, whether
as a consequence, the plaintiff has suffered any loss or not.
Actionable per se – without the proof of any damage or loss.

Ashby v. White (1703)

Defendant, a returning officer – wrongfully refused to register a duly
tendered vote of the plaintiff, a legally qualified voter

Candidate for whom the vote was tendered was elected and no loss was
suffered by the rejection of the vote.
The returning officer has acted maliciously – action will lie.
An action for damages will lie if a citizen is deprived of his right to vote by a
law which is unconstitutional law by reason of offending right to equality.

Bhim Singh v. State of J&K (1986)

Petitioner – MLA of J&K Assembly – wrongfully detained by police – while

going to attend Assembly session – not produced before the Magistrate
within requisite period.

MLA was deprived of constitutional right to attend the Assembly session –

violation of right to personal liberty – Bhim Singh was released – damages
amounting to Rs. 50,000 were awarded to him.
Damnum sine Injuria
Damage which is not coupled with unauthorised interference with plaintiff’s
lawful right.

Actual and substantial loss without infringement of any legal right.

Gloucester Grammar School Case (1410)

Defendant, school master set up rival school next door to plaintiff’s – boys
from plaintiff’s school flocked to defendant’s – no action could be
maintained – competition is no ground of action whatever damage it may
cause.
Mogul Steamship Co. v. Mc Gregor, Gow & Co. (1892)

A, B, C and D are shipowners – combined together to keep the entire trade in

their hands – consequently F, a rival shipowner was driven out of trade by
offering special terms to customers – F had no right of action for no legal right
of F had been infringed.

Chasemore v. Richards (1859)

Plaintiff, millowner – using water for his mill from stream, fed by rainfall
percolating through underground strata not flowing in defined channel –
defendant sunk a well and pumped large quantities of water, which would
otherwise have gone to plaintiff’s stream.
Mayor & Co. of Bradford v. Pickels (1895)

Plaintiff deriving water from adjoining land of the defendant – land was at
higher level – defendant sank a shaft over his own land which diminished the
water flowing to the land to the plaintiffs.

Plaintiff wanted to restrain the defendant from sinking the shaft alleging that
the sole purpose of the same was to injure the plaintiffs as they did not
purchase his land at exorbitant price.

House of Lords held that since defendant was exercising his lawful right, he
could not be held liable even though the act which injured the plaintiff was
done with bad intention.
Town Area Committee v. Prabhu Dayal (1975)

Illegal construction of 16 shops – construction was made without obtaining

necessary sanction.

The constructions were demolished.

Compensation was claimed since demolition was done with bad intention.

Court held no liability to provide compensation because no ‘injuria’ was

proved – since construction was made illegally.
 Place of Mental Elements in torts
Mental element is an essential element in most of the forms of crime.
A man is not ordinarily punishable for something which he never meant or the
consequence of which he couldn’t foresee.

FAULT WHEN RELEVANT:

Assault, battery, false imprisonment, deceit, malicious prosecution,

conspiracy.
State of mind is relevant to ascertain liability.
Mental element may become irrelevant when defendant’s conduct is innocent.
Inevitable accident, necessity
Entering premise of another to prevent spread of fire.
Pulling out a drowning person
Forcibly feeding a hunger striking prisoner

LIABILITY WITHOUT FAULT

In some cases, honest mistake or innocence of the defendant is no defence.

Tort of conversion - Auctioneer selling goods under an authority from a
customer, having no title to the goods – liable even though he honestly
believed customer was a true owner.
Defamation
Vicarious liability – liability for motor accident.
Rylands v. Fletcher – Strict Liability – Absolute liability
Malice in Law and Malice in Fact
A wilful wrongful act done intentionally without just cause or excuse –
malice in law

Malice in fact – evil motive for wrongful act – defendant doing wrongful act
with ill-will or vengeance, the act is said to be done ‘maliciously’.

Motive v. Intention

Motive is not relevant to determine a person’s liability in the law of torts.