What is tort

Tort is a civil wrong in general which is not exclusively

breach of trust or contract but a remedy. According to section
2(m)of Limitation Act, 1963: "Tort means a civil wrong
which is not exclusively a breach of contract or breach of
trust."

 Not a codified as it is not passes by legislation but the

basis is customs, Precedents and philosophy by experts.
 Adopted from UK
 It is derived from Latin word mean tortum which mean
tort in French and wrong in English.
 Every tort is civil wrong but every civil wrong is tort. So
when there is specific law is decided for specific case
then it should be referred to that but not general tort law.
 Civil wrong is violation of private law or right of an
individual person, where the courts goal is to
compensate the individual for loss in which the
individual himself should fight sot his case but not state.
 suffered. Eg: Breach of contract, trespass, defamation.
 a wrongful act – violation of duty imposed by law, duty
which is owed to people generally
A Criminal law is the violation of public law, where the
individual is being represented by state as it is crime against
state.
Eg: Murder, Rape
Unliquidated damages: in general it is penalty which is not
fixed and will be fixed by judge, which is usually
compensation
Liquidated damages: It is a fixed punishment which is
usually jail term or hung.

Liability conditions for tort

1. Defendant must commit a wrongful act which can be an
omission of an act one is entitled to do.
2. The wrongful act must violate the legal right of an
individual.
3. The act a should be in such nature which gives rise to
legal remedy.
General Principles of Liability
1. Wrongful intent: In cases of wrong intent, an individual
purposefully engages in an action with the full awareness
that it will lead to specific consequences. The key
element here is the conscious desire or intention to bring
about the foreseen outcomes.
2. Negligence: Negligence, on the other hand, does not
involve a deliberate desire for harm. Instead, it arises
when an individual fails to exercise the level of care that
a reasonable person would under similar circumstances.
While the harmful consequences are foreseeable, they are
not actively sought.
3. Motive: Motive, in legal terms, denotes the underlying
reason or purpose behind an action. While generally not
a decisive factor in establishing liability, it becomes
relevant in specific cases, such as malicious prosecution,
 where an improper motive (express malice) is
considered.
4. Malice: deliberate commission of a wrongful act without
a just cause or excuse. It involves actions performed with
the knowledge and intention that they will result in harm,
regardless of any emotional animosity or ill-will.

Types of tortious liability

Strict Liability: A concept of tort holds a defendant
responsible for their actions regardless of their intent and
knowledge about the action at that particular time.
Case law:
Facts: There were two men living next to each other, Rylands
and Fletcher. Fletcher owned a mill for whose energy
requirement; he constructed a water reservoir on his land. To
get this work done, he had hired independent contractors and
engineers. There were old unused shafts under the site of the
reservoir which the engineers didn’t notice and thus did not
block them. Due to the negligence of the contractors, the
shafts that led way to Rylands land burst when water was
filled in the reservoir. This caused huge damage and loss to
Ryland as the water entered into his coal mine. Thus, Ryland
filed a suit against Fletcher.
Issues: The question was rather brief: should a litigant be put
at risk, regardless of whether it was someone else’s act, which
resulted in an aspect being removed on his territory? It was
remarkable in light of the fact that there was no carelessness
or expectation on part of the litigant.” “
Judgment: The House of Lords dismissed the supplication of
the respondent and held him at liable for every one of the
damages to Rylands’ mine. As per the rule set by this case, if a
man expedites his territory and keeps there any hazardous
thing, a thing which is probably going to do insidiousness on
the off chance that it gets away, he will be at first sight liable
to the harm caused by its escape despite the fact that he had
not been careless in keeping it there. Regardless of there being
no blame or carelessness with respect to the litigant, he was
held at liable since he kept some unsafe thing on his territory
and the said hazardous thing has gotten away from his
property and caused harm.” “
Analysis: According to the rule set by this case, if a person
brings on his land and keeps there any dangerous thing, a
thing which is likely to do mischief if it escapes, he will be
prima facie answerable to the damage caused by its escape
even though he had not been negligent in keeping it there. The
liability arises not because there was any fault or negligence
on the part of a person, but because he kept some dangerous
thing on his land and the same has escaped from there and
caused damage. Since, in such a case the liability arises even
without any negligence on the part of the defendant, it is
known as the rule of strict liability. Therefore, this is one of
the most important landmark judgements in the history of the
legal system since it led to the formulation of a new concept, a
new idea and thus a new principle- the rule of the strict
liability. Based upon his principles, there were certain
qualifications given to decide whether a liability is strict
liability or not. Only after these essential qualifications being
satisfied, a liability can be termed as strict liability.”
Essentials:
1. Dangerous substances
2. Escape
3. Non natural use
Exceptions:
1. Act of god
2. Plaintiff own mistake
3. Consent of plaintiff
4. Act of third party
Vicarious Liability: Vicarious liability is a legal
concept where one person is held liable for the wrongful acts
committed by another person, based on specific relationships
like principal-agent, partnership, or master-servant. In such
cases, both the wrongdoer and the person with the vicarious
liability can be jointly and severally held responsible for the
wrongful act.
Contract Of service-Special Relations (Liable)
Contract For Service-Independent Contractor (Not Liable)
A person may be liable in respect of wrongful acts or
omissions of another in three ways:
1. Ratification
2. Special Relations
3. Abetment
1. Ratification: Act done for another, even without
authority but subsequently ratified by the beneficiary
becomes act of the beneficiary principal.
 A person liable for tort committed by another, on
ratification of the tortuous act if:
a) ratification done with full knowledge of the act
being tortuous
b)act ratified done for benefit of person ratifying it
c) act which is illegal and void cannot be ratified.
2. Special Relation:
a) Master Servant: If a servant does a wrongful act in the
course of his employment, the master is liable for it. The
servant, of course, is also liable. A servant is a person
employed by another to do work under the directions and
control of his master.
(1) The tort was committed by the 'servant'.
(2) The servant committed the tort in the 'course of his
employment'.
Respondeat superior(doctrine)
Independent Contractor is not said to under this
principle.
Course Of Employment: The "course of employment"
refers to the time or circumstances when an employee is
engaged in authorized activities or tasks related to their job. It
includes acts expressly authorized by the employer and
wrongful but unauthorized methods of performing authorized
tasks. Employer liability extends to both authorized and
unauthorized acts if they occur within the course of
employment.
Test of Control: The test of control, according to the passage,
involves the master's power to direct and control not only what
work the individual is to do but also the manner in which the
work is performed. The key factor is the extent of control the
employer has over the details of how the work is carried out.
 Ex: "1 My car driver is my servant. If he negligently knocks down X, I
will be liable for that. But if I hire a taxi for going to railway station and
the taxi driver negligently hits X, I will not be liable towards X because
the driver is not my servant but only an independent contractor. The taxi
driver alone will be liable for that.
b) Principle and agent: The principal-agent relationship
entails the principal granting authority to the agent. The
agent acts on behalf of the principal, and the principal is
responsible for the agent's authorized actions. This
relationship is guided by the principle "Qui facit per
alium facit per se."
Essentials: If the wrongful act done during course of
agency.
If wrongful act within scope of agent’s authority.
Case Law
In Lloyd v. Grace, Smith & Co.,4 Mrs. Lloyd, who owned two cottages but was not
satisfied with the income therefrom, approached the office of Grace, Smith & Co., a
firm of solicitors, to consult them about the matter of her property. The managing clerk
of the company attended her and advised her to sell the two cottages and invest the
money in a better way. She was asked to sign two documents, which were supposed to
be sale deeds. In fact, the documents got signed were gift deeds in the name of the
managing clerk himself. He then disposed of the property and misappropriated the
proceeds. He had acted solely for his personal benefit and without the knowledge of
his principal. It was held that since the agent was acting in the course of his apparent
or ostensible authority, the principal was liable for the fraud.

Damnum sine injuria

In general damage without injury(person who suffered loss
without violation of legal right)
Case law: Gloucester Grammar School vs. Rival School
Teacher ((1411), Y. B. 11 Hen. 4, f. 47, pi. 19)
Legal Principle – Damnum Sine Injuria Explanation –
Damnum Sine Injuria (Damage without Injury) is the tort
principle in which the damage has been suffered but there is
no infringement of legal right i.e., there is no injury caused.
Under this principle, since there is no infringement of legal
right, the case doesn’t get enforced in the court of law and
damages cannot be claimed as well. Damage can be of any
form such as damage to one’s money, image, health, property
etc. and injury means infringement of one’s legal rights. The
takeaway of this principle is that if one is exercising their
rights without causing legal injury to others then tortuous
liability won’t arise. To understand this concept, let us look at
the Gloucester Grammar case
Facts- In the Gloucester school, there was a teacher who left
the school after sometime due to an internal conflict. Due to
rivalry he opened his own school in front of Gloucester
Grammar Case and reduced his fee as compared to Gloucester
Grammar School. He made it 12 pence and Gloucester school
charged 40 pence, this was done to entice students to take
admission in his school and already existing students to leave
the Gloucester school and join his own. The new school got
new admissions due to simplified teaching and low fee and
students of Gloucester school also left and joined the new one
resulting in high monetary loss to Gloucester. The plaintiff
filed a case against the rival school teacher for trespassing and
asked for compensation for monetary loss caused because of
opening of new school in same area where Gloucester school
was situated.
Issue –
 Whether plaintiff’s rights have been infringed
and should plaintiff get damages for the monetary
loss suffered by opening of new school?
 Whether principle of Damnum Sine injuria
applies here?
Contention – The plaintiff claimed that the defendant
opened the school to take revenge and it caused monetary loss
which is morally wrong.
Disposition: In the Favor of the Defendant
Held- Any moral, religious, or social wrong would not count
law of torts unless there is an infringement of legal right
which will generate cause of action under torts. Here,
defendant’s act did not cause any legal injury but only
damages were caused in the form of monetary loss. Thus, as
per Damnum Sine Injuria, defendant is not liable to pay any
compensation and every individual has right to carry on any
profession, business and employment as long as it is legal and
not infringing any person’s legal rights. No legal remedy is
available for loss due to competition.

Injuria sine damnum: In general injury to right but

no damage to the individual there is violation of legal right
but didn’t suffer any damages.

Case Law: Ashby-v-William-White and-Ors

Legal Principle –
Injuria Sine Damnum Explanation – Injuria
Sine Damnum is the legal principle where one’s legal right
is infringed and although legal injury is caused, there is no
any physical injury. Only the violation which creates
actionable cause of action, even though there is no visible
loss of the sufferer is a tortuous wrong.
Facts – In this case even though the plaintiff Ashby was a
qualified voter and was giving vote at parliamentary
election the defendant (White) refused to register his vote.
The voter was eligible to vote and his vote was in the
favour of winning party only.
Disposition- In the favor of the Plaintiff. Held- It was
held that since the vote was in the favour of winning party,
there was no actual loss suffered by him by his legal right
i.e., his voting right was infringed and this was a civil
wrong committed by the defendant. Thus, he should get the
damages.
Men’s rea: in general it means guilty minded. A person
is only guilty if he has an bad intention to dot that so. Mens
rea is not applicable in civil law bit yes in criminal law.
Maxim: actus non facit reum nisi mens sit rea

General Defences of tort

1.Volenti Non Fit Injuria:
https://legalserviceindia.com/legal/article-9881-case-
 commentary-hall-v-s-brooklands-auto-racing-
club.html
2.The wrongdoer is the plaintiff: Ex turpi causa
non oritur action which mean from an immoral cause, no
action emerges. It is impossible for the plaintiff to
receive damages if the foundation of his case is an
illegal contract.
https://thelawexpress.com/bird-v-holbrook-case-
summary(Bird v. Holbrook Case)
Essentials
There are 2 essential elements in the
defence of ex turpi causa:
1. The suit is brought by the plaintiff for the damage
caused by the defendant and the defendant is fully
responsible for such damage.
2. The actions of the plaintiff have to be in a
specific course of action which is illegal.
3.Inevitable accident: an unforeseeable event
resulting in harm that could not have been anticipated or
prevented despite reasonable care. It serves as a defence when
the defendant neither intended the harm nor could have
avoided it through reasonable precautions, as judged by the
standard of a reasonable person in similar circumstances.
4.Act of god: Act of God is an unforeseeable event
caused by natural forces, such as heavy rainfall, storms,
tempests, or volcanic eruptions. It serves as a valid defence
in legal contexts, indicating that the resulting loss or
 damage could not have been anticipated or prevented
through reasonable human efforts.
5.Private defence: Private defence permits the use of
reasonable force to protect oneself or property from an
imminent threat. It requires that the force used is necessary
and not excessive, with the law recognizing the right to
repel force with proportional force. The defence must be
justifiable based on the circumstances, and retaliation after
the threat has passed is not considered a valid justification.
6.Mistake
1.Mistake of law
2.Mistake of fact
7.Necessity: Necessity is a legal defense in tort that
justifies intentional harm caused to prevent a greater evil. It
involves the infliction of harm on an innocent person in
situations where the action is reasonably necessary to avert
a serious and imminent threat, such as throwing goods
overboard to save a ship or forcibly feeding a hunger-
striking prisoner for her well-being.
8.Statutory authority: Statutory authority is a legal
defense that immunizes individuals or entities from liability
for acts authorized or directed by legislation, even if those
acts would otherwise constitute a tort. This defense provides
complete immunity, and the injured party's only remedy is
typically limited to seeking compensation as stipulated by the
relevant statute. The immunity extends to both obvious harm
and incidental harm resulting from the authorized act.
Extinguishment of liability in tort
https://www.tutorialspoint.com/extinction-of-liability-in-
tort
Models of Discharge from liability
https://legalraj.com/articles-details/modes-of-discharge-
from-liability#:~:text=Section%2082%20of%20the
%20Negotiable,by%20cancellation%2C%20release%20or
%20payment.

Actio Personalis Moritur Cum

Persona
https://bnblegal.com/actio-personalis-moritur-cum-
persona/

The Doctrine of Res Ipsa Loquitur

https://www.legalserviceindia.com/legal/article-4923-the-
doctrine-of-res-ipsa-loquitur.html
Difference between Law of torts vs law of
tort
https://www.ejusticeindia.com/difference-between-law-of-
tort-and-law-of-torts/

Difference between Law of torts and

law of tort
https://blog.ipleaders.in/difference-between-crime-tort-
breach-of-contract-and-breach-of-trust/
Negligence
https://blog.ipleaders.in/negligence-in-the-law-of-torts/
Negligence
https://www.forbes.com/advisor/legal/medical-
malpractice/medical-negligence/ Medical Negligence
https://www.law.cornell.edu/wex/
contributory_negligence#:~:text=Contributory
%20negligence%20is%20a%20common,the%20doctrine
%20of%20comparative%20negligence. Contributory
Negligence
https://www.tutorialspoint.com/composite-negligence-
meaning-and-examples#:~:text=Meaning%20of
%20Composite%20Negligence,to%20as
%20%22composite%20tortfeasors.%22 Composite
Negligence
Difference between torts crime contract breach
of trust
https://blog.ipleaders.in/difference-between-crime-tort-
breach-of-contract-and-breach-of-trust/

Vicarious Of Liability