TORT NOTES

Essentials of a tort

1. There must be some act or omission on the part of the defendant, and

2. The act or omission should result in legal damage. i.e. violation of a legal right vested in the
plaintiff.

The wrongful act or a wrongful omission must be one recognized by law.

Glasgow Corp v Taylor- public park – fencing- poisonous berries- children die

Municipal Corporation of Delhi v Subhagwanti – clock tower- no maintenance- falls down-

death

For a successful action for torts- It has got to be proved that there was a wrongful act- an act or
omission- causing breach of a legal duty or violation of a legal right.

Injuria Sine damno

Torts which are actionable per se, i.e., actionable without proof of damage or loss. (trespass to
land)

Ashby v White – Voting rights denied- plaintiff’s legal right violated

Bhim Singh v State of J. & K. – wrongful detention- personal liberty violated-

Damnum Sine Injuria

Gloucester Grammar School Case

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.

Other cases: Action v Blundell – digging well one mile away and reducing the water level in
plaintiff’s well – no legal injury

In Bradford Corporation v Pickles, the House of lords went a step further and held that even if
the harm has been caused maliciously, no claim lies for the same unless a legal injury has been
suffered by plaintiff.
A legal act, though motivated by malice, will not make the defendant liable. The plaintiff can get
compensation only if he proves to have suffered injury because of an illegal act of the defendant
and not otherwise.

Legal Rights are divided into

1. Absolute Rights: For getting compensation, only the legal harm has to be shown.

2. Qualified Rights: For getting damages, actual harm has to be shown.

Quasi Contract: Quasi Contract is an implied contract where we receive some unjust benefit and
it is our duty to return the due benefit we received.

The tort of Conversion on the other hand deals with making good the loss in case of the benefit
that we have unjustly enjoyed with the good

In case of a problem which shoes contractual and tortuous liability, claims can be made under
one head.

MENTAL ELEMENT IN TORTIOUS LIABILITY

Fault when Relevant

In cases of assault, battery, false imprisonment, deceit, malicious prosecution and conspiracy the
state of mind is relevant to ascertain his liability

Liability without fault

In certain cases, the mental element is quite irrelevant and the liability arises even without any
wrongful intention or negligence on the part of the defendant. In such cases, innocence or honest
mistake is no defence. Tort of conversion, strict liability, vicarious liability etc is examples of
such torts.

GENERAL DEFENCES

Volenti Non-Fit Injuria

When a person consents to the infliction of some harm upon himself, he has no remedy for that
in tort. Many a time, the consent is implied or inferred from the conduct of the parties.

For the defence of consent to be available, the act causing the harm must not go beyond the limit
of what has been consented.

In Hall v Brooklands Auto racing club- spectator at race- injury due to car accident- no claims

In Wooldrige v Sumner- photographer at horse race- injury- VNFI applies

Illot v wilkes- A trespasser, who knew about the presence of spring guns on a land, could not
recover damages when he was shot by a spring gun.

For the defence of Volenti Non-Fit Injuria to be used, it is essential to be shown that the
plaintiff’s consent to the act done by the defendant was free.

Lakshmi Rajan v Malar Hospital- development of lump in breast- consent to remove- uterus was
removed- VNFI could not be applied.

Consent obtained by fraud is no good and does not stand as a defence.

Consent obtained under compulsion or in cases where there is no real choice, is not the proper
consent. The mere knowledge of the risk does not amount to consent.

For the maxim volenti non fit injuria to be applied:

1. The plaintiff knew that the risk is there

2. He knowing the same, agreed to suffer the same.

In Smith v Baker- plaintiff rock drilling- crane dropped stone injuring plaintiff- plaintiff aware of
the risk- VNFI could not apply-

VNFI with respect to Negligence: VNFI generally is not accepted in cases of Negligence.
Example: Dan v. Hamilton. Though for extreme cases VNFI may apply. Ex: Morris v. Murray.

The Difference between VNFI and contributory negligence is that in VNFI we are aware of risk
and we take adequate protection. In contributory negligence, the person doesn’t take adequate
precaution and the other's negligence also adds to the harm.

Rescue cases: Rescue cases form an exception to the application of the doctrine of volenti non
fit injuria.

Haynes v Harwood- defendant left horse cart unattended on busy thorough fare- they bolted-
plaintiff stopped the horses but suffered injury- defendants held liable

PLAINTIFF THE WRONGDOER

The mere fact that that the plaintiff was a wrong doer does not disentitle him from recovering
from the defendant for latter’s wrongful act. The plaintiff may have to answer for his wrongful
act, but he does not forfeit his right of action for the harm suffered.

If his own act is the determining cause of the harm suffered by him, he has no cause for
action.
Merely plaintiff is the wrongdoer does not bar a cause of action. He may lose his action if his
wrongful act is the real cause of his harm. In case of contributory negligence, the compensation
payable is reduced in proportion to his own fault in the matter.

Bird v Holbrook- plaintiff trespasser – spring guns inured plaintiff- no notice of spring guns-
defendant liable

INEVITABLE ACCIDENT

Accident means an unexpected injury and if the same could not have been foreseen and avoided,
in spite of reasonable care, it is inevitable accident.

Stanley v Powell – Shooting party- bullet deflected after hitting branch- plaintiff injured-
accident

Other examples: Holmes v Mather: Defendant’s horse cart – dogs bark- horses bolt- injuring
plaintiff- held that it was inevitable accident.

THE RIGHT TO PRIVATE DEFENCE

The law permits use of reasonable force to protect one’s person or property. If the defendant uses
the force which is necessary for self-defence, he will not be liable for the harm caused.

In Bird v Holbrook : Defendant was liable for putting spring guns without notice- court said that
the force used was greater than the occasion needed.

Ramanuja Mudali v M.Gangan: defendant a land owner- laid live wires- without notice-

ACT OF GOD

Two important essentials which are needed for the defence of ACT of God

1. There must be working of natural forces

2. The occurrence must be extraordinary and not one which could be anticipated and reasonably
guarded against.

Cases: Nichols v Marsland- artificial land- extraordinary rainfall- washing away four bridges- act
of God pleaded successfully

MISTAKE

Mistake whether of fact or of law, is generally no defence to an action for tort. Mistake of Fact:
Applicable to only those cases where intent is the cause of the case:
Example: (i) Malicious Prosecution, (ii) False Imprisonment, (iii) Defamation (mainly in the
cases of libel.) (iv)Deceit: Making a false statement to a person and as a consequence of that
statement the person suffers damage.

NECESSITY

An act causing damage, if done under necessity to prevent a greater evil is not actionable even
though the harm was caused intentionally.

In necessity, there is an infliction of harm on an innocent person or an innocent person’s property

whereas in private defence, harm is caused to a plaintiff who himself is the wrongdoer.

In necessity, the harm is an intended one while in inevitable accident; the harm is caused in spite
of the best effort to avoid it.

In Cope v Sharpe, the defendant entered the plaintiff’s land to prevent the spread of fire- held
that the act was reasonable

STATUTORY AUTHORITY

The damage resulting from an act, which the legislature authorises or directs to be done, is not
actionable even though it would otherwise be a tort.

Hammer Smith Rail Co v Brand – value of plaintiff’s property declined due to smoke and noise
produced by railways. Since the act was authorised by a statute, there lied no action for the same.

Vaughan v Taff Valde Rail Co- sparks from engine- set fire to respondent’s wood- held that
railways were not liable.

It is necessary that the act authorised by the legislature must be done carefully and therefore, “an
action does lie for something which the legislature had authorised, if it be done negligently”