CS-EET LEVEL

NOVEMBER 2020 BATCH

TOPIC: LAW RELATING TO TORTS
DATE: 1st AUGUST
PROFESSOR: SAGAR TOLANI
[TEACH AT ALL 3 LEVELS]
(CS, L.L.B, B.COM, DLL, DCL)
**9 PLUS YEARS EXPERIENCE**
 Crime (CRIMINAL WRONG/ PUBLIC WRONG) Civil wrongs (PRIVATE WWRONG)
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1) Crime is a Wrong against Society Civil Wrong is against a private individual or individuals

2) Remedy against crime is Punishment Remedy against civil wrong is Damages / Compensation

3) The proceeding in case of Crime is are criminal proceeding In case of Civil wrong are civil proceedings

4) In Crime intention is essential element. In civil it is not relevant

5) In Crime , State takes action against Criminal Aggrieved (affected) person takes action

6) In criminal law, a wrong is called as CRIME. In Civil law, a wrong is called as TORT.
 AUTHOR DEFINITIONS
Salmond defines it as ”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
merely equitable obligation.”
Fraser describes it as “an infringement of a right in rem of a private individual giving a right of
compensation at the suit of the injured party.”
Winfield says: “Tortious liability arises from the breach of duty, primarily fixed by law; this duty is
towards persons generally and its breach is redressable by an action for unliquidated damages”.
NOTE POINTS  Two important elements can be derived from these definitions, namely:
(i) that a tort is a species of civil injury of wrong as opposed to a criminal wrong, and
(ii) that every civil wrong is not a tort.

 Accordingly, it is possible to distinguish tort from a crime and from a contract, a trust and a
quasi- contract. The distinction between civil and criminal wrongs depends on the nature of the
appropriate remedy provided by law.
 Crime Tort
A Crime is wrongdoing which hampers the social order of A Tort is wrongdoing which hampers the individual or his
the society we live in. property.

Crime happens mostly intentionally. It is a deliberate act It happens mostly due to negligence. Tort is hardly intentional.
which people do to get some unlawful benefits. But it is still damaging to the individual.
Crime impacts the well-being of society in general. The
Tort impacts the well-being of the individual. The aggrieved party
legal bodies try to give proportional punishment to law
seeks compensation for the damages.
offenders in order to maintain peace in society.

Crimes are presented in the Criminal Court. Torts are presented in the Civil Court.

Fine in case of crimes is already mentioned in the book of

law. Whenever the court has to decide the amount of fine, Compensation for torts is given on the basis of the damages to
they simply refer to the law book. In certain cases, judges the aggrieved party.
use their personal judgments too.

For crime we have codified laws (India Penal Code) For tort we have no law (it is uncodified concept)
 LAST MINUTE REVISION NOTES
INTRODUCTION:
1. Tort derived from Latin word TORTUM which means to TWIST
2. The term ‘tort’ is a French equivalent of English word ‘wrong’.
3. Simply stated ‘tort’ means wrong. But every wrong or wrongful act is not a tort.
4. Tort is NOT EQUAL to CRIME or CRIMINAL WRONG.
5. Wrongs, in law, are either public or private.
6. Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is NOT EQUAL
TO BREACH OF CONTRACT OR BREACH OF TRUST

NOTE POINT: TORT IS A CIVIL WRONG BUT EVERY CIVIL WRONG IS NOT A TORT
GENERAL CONDITIONS FOR TORT:
a tort consists of some act or omission done by the defendant (tortfeasor)
whereby he has without reason or excuse caused some harm to plaintiff.

To constitute tort, there must be:

a wrongful act or omission of the defendant;
a wrongful act or omission MUST give rise to LEGAL INJURY
the wrongful act MAY result in causing LEGAL DAMAGE to another; and
the wrongful act must be of such a nature as to GIVE RISE to a LEGAL REMEDY.
ACT OR ACT = TO DO SOMETHING; OMISSION = NOT TO SOMETHING
OMISSION
LEGAL INJURY MEANS VIOLATION OF LEGAL RIGHTS
LEGAL DAMAGE • NOT EVERY DAMAGE IS A DAMAGE IN THE EYES OF LAW
• MEANS NOT EVERY DAMAGE IS A LEGAL DAMAGE
• ANY DAMAGE TO BE CALLED AS LEGAL DAMAGE, IT MUST ARISE FROM
VIOLATION OF LEGAL RIGHTS
• WHERE THERE IS VIOLATION OF A LEGAL RIGHT, AN ACTION LIES EVEN THOUGH
NO DAMAGE MAY HAVE BEEN CAUSED.
TWO MAXIMS • DAMNUM SINE INJURIA AND INJURIA SINE DAMNUM
DAMNUM SINE • Damnum means harm, loss or damage in respect of money, comfort, health, etc.
INJURIA • Injuria means infringement / Violation of a right.
DAMAGES WITHOUT • a man may have suffered damage and yet have no action in tort, because there is
LEGAL INJURY no violation of legal rights
• Therefore, causing damage, however substantial (major) to another person is not
actionable in law unless there is also a violation of a legal right of the plaintiff.
• Gloucester Grammar School Case (Grammar School started by defendant)
INJURIA SINE • It means injury without damage, i.e., where there is no damage resulted yet it is
DAMNUM an injury or wrong in tort.
LEGAL INJURY • where there is infringement of a legal right not resulting in harm / damage but
WITHOUT DAMAGES plaintiff can still sue in tort.
• when there is an invasion of an “absolute” private right of an individual, there is
an injuria and the plaintiff’s action will succeed even if there is no Damnum or
damages.
• Ashby vs. White case (refused to cast vote)
Gloucester Grammar School Case
Ashby vs. White case
The defendant was the schoolmaster intentionally opened the
school in front of the plaintiff’s school, causing damage to him.
As due to an increase of competition the plaintiff has to reduce
their fees from 40 pence to 12 pence per scholar per quarter. It
was held that even though the plaintiff has suffered harm but
there was no infringement of any legal right, therefore, the
defendant can’t be held liable.
where the plaintiff was a qualified voter at a parliamentary
election, while the defendant who was a returning officer in
election wrongfully refused to take a vote of the plaintiff.
Although the plaintiff didn’t suffer any loss by such wrongful
act as the candidate he wants’ to vote on the election, the
legal rights of the plaintiff were infringed and therefore the
defendant was held liable.

LEGAL REMEDY The main remedy for a tort is an action for unliquidated (not specified) damages
(compensation).
Some other remedies i.e. Injunction, Damages or Specific Restitution may also be
claimed.
TORTS OR WRONGS TO PERSONAL SAFETY AND FREEDOM
BATTERY • APPLYING FORCE [EVEN IT IS TRIVIAL (SIMPLE)] BY ONE PERSON UPON ANOTHER
WITHOUT JUSTIFICATION OR LEGAL EXCUSE
• EVEN TO TOUCH A PERSON IN ANGER OR WITHOUT ANY LAWFUL JUSTIFICATION IS BATTERY.
ASSULT • CREATING AN APPREHENSION IN THE MIND OF THE PLAINTIFF THAT HE IS GOING
TO COMMIT BATTERY AGAINST HIM.
• ASSULT is equal to battery EXCEPT physical contact
• Usually when there is a battery, there will also be assault, but not, when a person is
hit from behind.
BODILY • A willful act (or statement) of defendant, planned in such a manner that it cause
HARM physical harm to the plaintiff and in fact causing physical harm to him, is a tort.
FALSE • False imprisonment means unauthorized restriction on a person’s body.
IMPRISON- • In false imprisonment a person is confined within certain limits so that he cannot
MENT move about and therefore, his personal liberty is violated.
• If a man is restrained, by a threat of force from leaving his own house or an open
field there is false imprisonment.
NERVOUS a person may get physical injury not by an impact, e.g., by stick, bullet or sword but
SHOCK merely by the nervous shock through what he has seen or heard.
DEFAMATION • Defamation is an attack on the reputation of a person.
• something is said or done by a person which affects the reputation of another.
• Defamation may be classified into two heads: Libel and Slander.
• Libel is a representation made in some permanent form,
• Slander is the publication of a defamatory statement in a temporary form
MALICIOUS Malicious prosecution is an abuse of the process of the court by wrongfully setting the law
PROSECUTION in motion on a criminal charge. In order to succeed the plaintiff must prove that there was
a prosecution without any just and reasonable cause, initiated by malice and the case was
decided in the plaintiff's favour.
In an action of malicious prosecution the plaintiff must prove:
1) That he was prosecuted by the defendant.
2) That the proceeding complained was terminated in favour of the present plaintiff
3) That the prosecution was instituted against without any just or reasonable cause.
4) That the prosecution was instituted with a malicious intention, that is, not with the mere
intention of getting the law into effect, but with an intention, which was wrongful in fact.
5) That he suffered damage to his reputation or to the safety of person, or to security of his
property.
 REMEDIES IN TORT
JUDICIAL REMEDIES
(REMEDIES PROVIDED BY COURT)
• Damages or Compensation,
• Injunction, and
• Specific Restitution of
Property.
EXTRA JUDICIAL REMEDIES
(SELF HELP REMEDIES)
Self Defence
Prevention of trespass
Re entry on land
Re caption on land
Abatement of Nuisance
Distress damage feasant (Detain
things causing damages)
 LIABILITIES UNDER TORT
VICARIOUS LIABILITY VICARIOUS LIABILITY OF STATE STRTICT LIABILITY
In this person may be held liable (a) THE POSITION IN ENGLAND Mens Rea
for the tort committed by With the passing of the Crown The General principle lies in the
another. Proceeding Act, 1947, the Crown is maxim “actus non facit reum nisi
liable for the torts committed by its mens sit rea” i.e. the act itself
A master is vicariously liable for servants just like a private individual. creates no guilt in the absence of
the tort of his servant, principal Thus, in England, the Crown is now a guilty mind. It does not mean
for the tort of his agent and vicariously liable for the torts of its that for the law or Torts, the act
partners for the tort of a servants. must be done with an evil motive,
partner. This is know as but simply means that mind must
vicarious liability in tort. (b) THE POSITION IN INDIA concur in the Act, the act must be
In India, we have no legal provision done either with wrongful
Examples: with respect to the liability of the intention or negligence.
Master Servant Relation State in India.
Principal Agent Relation
Employer Employee Relation
Partners Relation
VICARIOUS LIABILITY (PART I)
 Principal and Agent:
Qui facit per alium facit per se –
He who acts through another is
acting himself, so that the act of
the agent is the act of the
principal. When an agent
commits a tort in the ordinary
course of his duties as an agent,
the principal is liable for the
same.
 Partners
For the tort committed by a
partner in the ordinary course of
the business of the firm, all the
other partners are liable
therefore to the same extent as
the guilty partner. The liability of
the partners is joint and several.
VICARIOUS LIABILITY OF STATE
When a case of Government liability
in tort comes before the courts, the
question is whether the particular
Government activity, which gave
rise to the tort, was the sovereign
function or non-sovereign function.
If It is a sovereign function it could
claim immunity from the tortuous
liability, otherwise not. Generally,
the activities of commercial nature
or those which can be carried out by
the private individual are termed as
non-sovereign functions.
STRTICT LIABILITY (PART I)
In some torts, the defendant is
liable even though the harm to
the plaintiff occurred without
intention or negligence on the
defendant’s part. In other words,
the defendant is held liable
without fault.
Rule in Rylands v. Fletcher
The rule in Rylands v. Fletcher is
that a man acts at his peril and is
the insurer of the safety of his
neighbor against accidental harm.
VICARIOUS LIABILITY (PART II)
 Master and Servant:
1. A master is liable for the tort
committed by his servant while
acting in the course of his
employment. The servant, of
course, is also liable; their liability
is joint and several.
2. The servant, of course, is also
liable; their liability is joint and
several. A master is liable not only
for the acts which have been
committed by the servant, but
also for acts done by him which
are not specifically authorized, in
the course of his employment.
VICARIOUS LIABILITY (PART III) STRTICT LIABILITY (PART II)
3. The basis of the rule has been Such duty is absolute because it is
variously stated: on the maxim independent of negligence on the
Respondeat Superior (Let the part of the defendant or his
principal be liable) or on the servants. It was held in that case
maxim Qui facit per alium facit per that: “If a person brings or
se (he who does an act through accumulates on his land anything
another is deemed to do it which, if it should escape may
himself). cause damage to his neighbors, he
does so at his own peril. If it
4. The master is liable even though escape and cause damage he is
the servant acted against the responsible, however careful he
express instructions, for the may have been, and whatever
benefit of his master, so long as the precautions he may have taken to
servant acted in the course of prevent damage.”
employment.
VICARIOUS LIABILITY (PART IV)
 Employer and Independent Contractor
employer is vicariously liable for the torts of his
servants committed in the course of their
employment, but he is not liable for the torts of
those who are his independent contractors.
An independent contractor is one who works for
another but who is not controlled by that other in
his conduct in the performance of that work.
Where Employer is Liable for the acts of IC:
• When employer authorizes him to commit a tort.
• In torts of strict liability
• Negligence of independent contractor working
under employer.
Where Employer is not Liable for the acts of an IC:
An employer is not liable for the tort of an independent
contractor if he has taken care in
the appointment of the contractor.
STRTICT LIABILITY (PART III)
The following exceptions to the rule of strict liability
have been introduced in course of time, some of them
being inherent in the judgment itself in Ryland v.
Fletcher:
o Consent of Plaintiff
o Act of God
o Act of Third Party
o Act of Statutory Authority
o Escape Due to plaintiff’s own default
o Damage due to natural use of land
NOTE: ABSOLUTE LIABILITY IS EQUAL TO STRICT
LIABILITY WITHOUT EXCEPTIONS
M.C. Mehta vs. UOI, 1987
Absolute liability with no exception Employer can't
escape even though taken reasonable care.
Applicability of the rule in Rylands v. Fletcher in cases of enterprises engaged in a
hazardous or inherently dangerous industry.
The Supreme Court has discussed the applicability of the rule of Reylands v. Fletcher in the case of M.C.
Mehta v. Union of India and Others (1987) 1. Comp. L.J. p. 99 S.C. while determining the principles on which
the liability of an enterprise engaged in a hazardous or inherently dangerous industry depended if an
accident occurred in such industry.
The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous
activity in which it is engaged, must be conducted with the highest standards of safety; and if any harm
results on account of such activity, the enterprise must be absolutely liable to compensate for such harm;
and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm
occurred without negligence on its part.”
Thus, while imposing absolute liability for manufacture of hazardous substances, the Supreme Court
intended that the requirement of non-natural use or the aspect of escape of a dangerous substance,
commonly regarded as essential for liability under Rylands v. Fletcher, need not be proved in India.