SCHOOL OF LAW (University of Karachi)

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Course title: Law of torts
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Name Seat/ Enrolment No.
1.Samreen Q asim H1964126 Class: BALLB 5TH SEM
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Submission date: 17/5/2022
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Name of course MAAM
instructor ALIYA SAEED

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Index

Nature of torts

Elements of torts

Personal Disabilities in Law of

Torts General Defences

Vicarious

liability

Remedies
 Law of torts

Nature of torts
What is tort?
 Explanation
The word tort has been derived from the latin word "tortum" which means to twist. In
general, it means conduct that adversely affects the legal right of others and is thus,
"wrong". For a healthy society it is necessary that it be free of anti-social elements and that
an individual should have freedom to exercise his rights without being restricted by others.
Further, if there is a transgression of any right, there must be a way to compensate or to
restore the right. This is essentially what the maxim, "Ubi just ibi remedium" implies.
Where ever there is a right, there is a remedy. Indeed, a right has no value if there is no way
to enforce it. Such rights of individuals primarily originate from two sources - contractual
obligations and inherent rights that are available to all the citizens against every other
citizen, aka rights in rem. While the violation of contractual right has clear remedy that
arises from the contract itself, the violation of rights that are available to all the persons in
general does not have a clear remedy because there is no explicit contract between the two
parties. Such violations are called wrongs and it is for such wrongs that the law of torts has
been developed. For example, one has a right against all other persons to be free of noise in
the night. If somebody starts playing music loudly, then he violates one's right to be noise
free. He is, thus, doing a wrong and even though there is no contract between the two, one
can sue him for damages.
There can be innumerable types of acts that can transgress the rights of others and it is not
possible to come up with a definition that can accommodate all the cases. However, the
following are some definitions from the experts –
Definitions:
Salmond - A tort is a civil wrong for which the remedy is action in common law for
unliquidated damages and which is not exclusively a breach of contract or breach of trust or
other equitable obligation.
Winfield - Tortious liability arises from the breach of duty primarily affixed by law. The
duty is towards persons in general and its breach is redressable by an action for unliquidated
damages.
Fraser - Tort in an infringement of a right in rem of a private individual giving a right of
compensation at the suit of the injured party.
Thus, it can be seen that tort is an act while the law of tort is the branch of law that provides
relief to the person who has been injured due to a tortious act.
Origin of torts:
Historically, rime and tort originated from the same root. Later on, they separated on the
account that crime does not only affect the victim but also to the society as a whole to a
great extent. Thus, the branch of law that deals with criminal conduct evolved a lot faster
than the branch of law that deals with torts.
The nature of torts
The nature of tort can be understood by distinguishing it from crime and contractual civil
liabilities. It can be said that tort is the residual of wrongful acts that are not crime and that
do not fall under contractual liabilities. Thus, if a wrongful act is neither crime nor a
violation of a contract, it may fall under tort. The damages are unliquidated and are decided
only by the common sense of the courts. The following differences between Tort and Crime
and Tort Distinction between Tort and Breach of Contract
Tort Breach of Contract
Tort occurs when the right available to all the A breach of contract occurs due to
persons in general (right in rem) is violated a breach of a duty (right in
without the existence of any contract. persona) agreed upon by the parties
themselves.
Victim is compensated for unliquidated Victim is compensated as per the
damages as per the judgment of the judges. terms of the contract and damages
Thus, damages are always unliquidated. are usually liquidated.
Duty is fixed by the law of the land and is Duty towards each other is affixed
towards all the persons. by the contract agreed to by the
parties.
Doctrine of privity of contract does not apply Only the parties within the privity
because there is no contract between theof contract can initiate the suit.
parties. This was held in the case of Donaghue
vs Stevenson 1932.
When a contract is void, there is no
question of compensation. For
Tort applies even in cases where a contract is
example, a contract with a minor is
void. For example, a minor may be liable in
void ab initio and so a minor
Tort.
cannot be held liable for anything.
Justice is met by compensating the victim for
his injury and exemplary damages may also be
Justice is met only by
awarded to the victim. In Bhim Singh vs
compensating the victim for actual
State of J K AIR 1986 - the plaintiff was
loss.
awarded
 exemplary damages for violation of his rights
given by art 21.

In the case of Donaghue vs Stevenson 1932, A purchased ginger beer in a restaurant for his
woman friend. She drank a part of it and poured the rest into a glass. Thereby, she saw a
dead snail in the drink. She sued the manufacturer. It was held that the manufacturer had a
duty towards the public in general for making sure there are no noxious things in the drink
even though there was no contract between the purchaser and the manufacturer.

The same principal was applied in the case of Klaus Mittelbachert vs East India Hotels
Ltd AIR 1997. In this case, Lufthansa Airlines had a contract with Hotel Oberoi
Intercontinental for the stay of its crew. One of the co-pilots was staying there took a dive in
the pool. The pool design was defective and the person's head hit the bottom. He was
paralyzed and died after 13 yrs. The defendants pleaded that he was a stranger to the
contract. It was held that he could sue even for the breach of contract as he was the
beneficiary of the contract. He could also sue in torts where plea of stranger to contract is
irrelevant. The hotel was held liable for compensation even though there was no contract
between the person and the hotel and the hotel was made to pay 50Lacs as exemplary
damages.

Distinction between Tort and Crime

Tort Crime
Tort occurs when the right available to all the persons Tort occurs when the right
in general (right in rem) is violated without the available to all the persons in
existence of any contract. general (right in rem) is violated
and it also seriously affects the
society.
Act is comparatively more serious
and affects the person as well as
Act is comparatively less serious and affects only the
the society.
person.
Intention is the most important
element in establishing criminal
Intention is usually irrelevant.
liability. A crime cannot happen
without Mens Rea.
It is a private wrong. It is a public wrong.
Since it is a private wrong the wronged individual Since it is a public wrong, the suit
must file a suit himself for damages. is filed by the govt.
The suit is for damages. The suit is for punishment.

Compromise is possible between the parties. For There is no compromise for the
example, a person who has been defamed, can punishment. For example, if a
compromise with the defamer for a certain sum of person is guilty of murder, he
money. cannot pay money and reduce his
sentence.

Compounding is possible. Compounding is generally not

possible.

Justice is met by compensating the victim for hisJustice is met by punishing the
injury and exemplary damages may also be awarded aggressor by prison or fine. In
to the victim. some specific cases as given in IPC
compensation may be given to the
In Bhim Singh vs State of J K AIR 1986 - the plaintiff
victim.
was awarded exemplary damages for violation of his
rights given by art 21.

Several criminal acts such as

assault and battery are also grounds
Tortious acts are usually not criminal acts.
for tortious suit.
 Elements of torts:
The law of torts is fashioned as “an instrument to make people adhere to a conduct of
reasonable behaviour and respect the rights and interests of one another.” This it does by
protecting interests and by providing for situations when a person whose protected interest
is violated can recover compensation for the loss suffered by him from the person who has
violated the same.
Consequently, it has been implied that there are three constituents of tort:
1) Wrongful Act: There must be a wrongful act committed by a person, that is, the defendant.
2) Legal Damage: The wrongful act must give rise to legal damage to a person, that is, the
plaintiff.
3) Legal Remedy: The wrongful act must be of such a nature so as to give a rise to legal
remedy in the form of an action for damages.

1) Wrongful Act:-
An act becomes wrongful when the person sought to be made liable was under some legal
duty, which he did not perform and the default of which caused loss to the victim.
In Rogers v. Rajendro Dutt (1860) 8 MIA 103 (136); it was ruled that, “The act complained
of should, under the circumstances, be legally wrongful as regards the party complaining;
that is, it must prejudicially affect him in some legal right; merely that it will; however
directly; do him harm in his interest is not enough.”
An act which, prima facie, appears to be innocent may become tortuous, if it invades the
legal right of another person. A simple example is that of erecting a structure on one’s own
land. It is completely lawful to enjoy one’s own property by erecting whatever one wants to,
on his land. But, if there is a law which gives a right to unobstructed transmission of
sunlight to a person’s house if he had been enjoying that sunlight for more than 20 years,
then any structure on anybody’s land which may block sunlight to his house is violation of
his right and he is entitled to file a suit.
To every right there corresponds an obligation or duty. If the right is legal, so is the duty. If
the right is contingent, so is the obligation. If the right is moral, so is the duty. Same goes
for the imaginary rights. A right in its main aspect consists in doing something, or receiving
and accepting something. Consequently, a duty in its main aspect consists in doing
something or refraining from doing or performing an act. For example, servitude of passage
over a field appears as a right of walking or driving over it by the owner of a dominant
tenement. The duty of the servient owner is to refrain from putting obstacles. The duty with
which law of torts is concerned is the duty from to abstain from wilful injury, to respect the
property of others, and to use due diligence to avoid harm to others.
In the cases of accidents by motor vehicles, where decision making is very difficult, the
victims get statutory compensation under the Motor Vehicles act, 1988 which provides for
compulsory insurance in order to give compensation to the victims as a measure of social
security.
Liability for a tort arises, when the wrongful act complained of amounts either to an
infringement of legal right or a breach or violation of a legal duty.
It can be summarised as that a wrongful act means any act, misstatement, or omission in
violation of law, especially the civil law. Wrongful acts include illegal acts, acts that are
immoral, anti social, or libel to result in civil suit, error, misstatement, or breach of duty by
an officer or director of a company that results in lawsuit against the company.

2) Legal Damage
“Damage” means the harm or loss suffered or presumed to be suffered by a person as a
result of some wrongful act of another. The difference between the terms “damage” and
“damages” is that, the former refers to the loss suffered by someone while the latter refers to
the compensation awarded by the court o the victim for the losses suffered by him.

From the point of view of the presumption of damage, rights are classified into two
categories: absolute and qualified. When an absolute right is violated the law conclusively
presumes damage even if the person wronged may not have suffered any pecuniary loss.
Violation of absolute right is actionable per se, that is, without proof of any damage. The
damage so presumed is called legal damage. The significance of legal damage is illustrated
by two maxims, namely, injuria sine damno and damnum sine injuria.
In case of qualified rights, there is no presumption of damage and the violation of such
rights is actionable only on the proof of damage.

3) Legal Remedy
A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under
the category of wrongs for which the remedy of a civil action for damages is available.

The essential remedy for tort is an action for damages. But there are other remedies also:
1) Injunction may be obtained in addition to damages, in certain cases of wrongs.
2) Specific restitution of a chattel maybe claimed in an action for the detention of chattel.
3) In cases of dispossession of land, the plaintiff can also claim recovery of his land.
But, primarily, it is the right to damages that brings certain wrongful acts under the ambit of
law of torts.

The law of torts is said to be a development of the maxim “ubi jus ibi remedium”, which
roughly means that “for every wrong, the law provides a remedy”. But, it does not mean
that there is a remedy for each and every wrong. There are many moral and political wrongs
which do not have any legal remedy. For example, there is no remedy for the beach of a
solemn promise not under seal and which is made without consideration. The maxim
intends to convey the fact that legal wrong and legal remedy, are correlative terms.
Therefore, it can be said that, the correct principle is that wherever a man has a right, the
law should provide a remedy, as observed in Letand v. Cooper (1965) 1QB 232.

Furthermore, it was laid down in Abbot v. Sullivan (1952) 1 KB 189that the absence of a
remedy is evidence but is not conclusive that no right exists.

Theories of General Principle of Liability:

Broadly, there are two theories regarding the principle of tortuous liability. One has been
proposed by Salmond and the other one by Winfield.

Winfield was of the view that tort law reflected a general principle of liability. Proponents
of this theory say that tort law is a growing subject, many new torts have come up and many
existing torts have been expanded. Therefore, tort law is referred to as “law of tort”.

Salmond propounded that tort law is a collection of remediable wrongs because of which it
ought to be referred to as “law of torts”. This theory is also known as “Pigeon hole theory”.

Although there is no formal recognition of either theory, a large number of jurists have
aligned their views with the concept of “law of tort” and supported the theory proposed by
Winfield. The reasons are obvious. As observed by Lord Mac Milan in Donhgue v.
Stevenson (1932) AC 56, “Torts are infinitely various, not limited or confined. The
conception of legal responsibility may develop in adaptation to altering social conditions
and standards. The criterion of judgment must adjust and adapt itself to the changing
circumstances of life.”

Many new torts have emerged in the recent past and some are still emerging. For example,
Rookes v. Barnard (1964) AC 1129 HL: Rookes, the plaintiff, worked for BOAC (British
Overseas Airways Corporation). He was a member of the trade union, there, at his
workplace. Rookes resigned from the trade union. The employees forced British Overseas
Airways Corporation (BOAC) to dismiss him from his job. The matter went to court and the
court ruled in favour of the plaintiff and said that he was entitled to damages.

Personal Disabilities in Law of Torts

There are certain persons who cannot sue, whilst there are others who cannot be sued, in
tort owing to personal disability.
Who cannot sue:
Following are the persons whose right to sue is/was restricted:
1. Convict
2. An alien enemy
3. Husband and wife
4. Corporation
5. Child
6. Bankrupt
7. A foreign State
Convict
Until the Criminal Justice Act was passed in 1948 in England a convict whose sentence is in
force and unexpired, and who is not “lawfully at large under any license” could not sue for
an injury to his property, or for recovery of a debt. By 'convict' is meant any person against
whom judgment of death or penal servitude shall have been pronounced on any charge of
treason or felony. By Statute the right to sue for any injury to the property of a convict was
vested in the administrator or interim curator, as the case may be, during the time that the
convict is subject to the operation of the Statute, that is to say, until the convict's death,
bankruptcy, or the completion of his term of imprisonment, or until he shall have received a
Royal pardon. A felon, who is not a convict as above defined, such as one who has been
sentenced to a term of imprisonment only, may sue for torts to his property. At Common
law a convict might sue for any personal wrong, such as assault or slander, and there is
nothing to prevent him still from doing.
Until 1921 similar prohibition existed in India for persons convicted of offences punishable
with forfeiture of property. But now no such restrictions exist and a convict may sue for
torts affecting both his person and property.
An alien enemy
According to English law, an alien enemy cannot sue in his own right. He cannot maintain
an action unless by virtue of an Order in Council, or duly licensed, or unless he comes into
the British dominions under a flag of truce or some other act of public authority putting him
in the Queen's peace. An alien enemy, residing in England with the license and permission
of the Crown, has the same rights and privileges as an alien friend.
Alien enemies residing in India with the permission of the central government may sue in
the Courts of India as if they were Indian citizens.
Husband and wife
English Law: A wife cannot sue her husband for a tort, nor can a husband his wife. The
wife may sue her husband for the protection and security of her own separate property ; but
further than that, no husband or wife shall be entitled to sue the other in tort. Thus, she
cannot sue him in a civil action for a personal wrong such as assault, libel, or injury by
negligence. The inability in general of the wife to sue her husband for a tort is founded not
merely upon a rule of legal procedure necessitating the joinder of the husband as a co-
plaintiff, but upon the principle that husband and wife form in the eye of the law one
person. Divorce does not enable the divorced wife to sue her husband for a personal tort
committed during the coverture. But a wife living apart from her husband under a
separation order obtained by virtue of the Summary Jurisdiction Act, 1895, can maintain an
action of libel against him. At Common law a married woman could not sue unless her
husband was joined with her as plaintiff, but now by the Married Women's Property Act,
1882, she may sue in tort in all respects as if she were a feme sole i.e., a woman without a
husband.
According to national law husband and wife have the right to sue each other in any offences.
Corporation
A corporation cannot maintain an action for libel charging the corporation with corruption,
for it is only the individuals, and not the corporation in its corporate capacity, who can be
guilty of such an offence

Child
A child cannot maintain an action for injuries sustained while en ventre sa mere. But a
minor may sue through his next friend.
Bankrupt
In India, the property of an insolvent is vested in the official assignee and the right to sue
vest with him.
In England a bankrupt cannot sue for any direct tort to his property belonging to him at the
date of his bankruptcy; but for injuries of a personal character, such as libel, or assault, or
the seduction of his servant, a bankrupt may sue.
Who cannot be sued
Right to sue against the following persons is/was restricted:
1. The Sovereign
2. Foreign Sovereigns
3. Ambassadors of Foreign Powers
4. Infancy or unsoundness of mind
5. Corporation
6. Married woman
The Sovereign
The person of the King is by law made up of two bodies: a natural body, subject to infancy,
infirmity, sickness, and death ; and a political body, perfect, powerful, and perpetual. These
two bodies are inseparably united together, so that they may be distinguished, but cannot be
divided. Now it is an ancient and fundamental principle of the English constitution, that the
King can do no wrong. It means, first, that the Sovereign, individually and personally, and
in his natural capacity, is independent of, and is not amenable to, any other earthly power or
jurisdiction ; and that anything amiss in the condition of public affairs is not to be imputed
to the King ; so as to render him personally answerable for it to his people. Secondly, it
means that the prerogative of the Crown extends not to do any injury, because, being
created for the benefit of the people, it cannot be exerted to their prejudice ; and it is
therefore a fundamental general rule, that the King cannot sanction an act forbidden by law.
Foreign Sovereigns
The English Courts have no jurisdiction over an independent foreign Sovereign, unless he
submits to the jurisdiction in the face of the Court. An action cannot be maintained against
such foreign potentate for anything done or omitted to be done by him in his public capacity
as representative of the nation of which he is the head. This principle holds well even if he
is also a British subject who has taken the oath of allegiance, and is in England exercising
his rights as such subject. English Courts cannot interfere with the prerogative rights of the
Sovereign of another country.
Ambassadors of Foreign Powers
A public minister duly accredited to the British Sovereign by a Foreign State is privileged
from all liability to be sued in civil actions. This applies even to a British subject accredited
to Great Britain by a Foreign Government as a member of its embassy. The immunity
extends not only to the person of the minister but to his family and suite, secretaries of
legation and
other secretaries, his servants, moveable effects, and the house in which he resides. A
foreign Sovereign or Ambassador may waive his privilege; but nothing short of appearance
in Court will amount to submission to its jurisdiction.
Infancy or unsoundness of mind
Persons who from extreme youth or unsoundness of mind are mentally incapable of
contriving fraud or malice. Infancy is no protection against a claim founded upon a tort
committed by an infant. In those cases of tort in which intention, knowledge, malice, or
some other condition of the mind of the wrong-doer, forms an essential ingredient of the
civil injury complained of, extreme youth may afford a defense which would not be open to
an adult wrong-doer, or to an infant wrong-doer of a more advanced age. Infants are liable
for wrongs of omission as well as for wrongs of commission; and with respect to wrongs of
omission probably no better criterion of liability can be suggested than the homely one,
“Was he old enough to know better?” Thus, infants are held liable for an assault, false
imprisonment, libel, slander; seduction, trespass; wrongfully detaining goods; fraud;
embezzling money; selling spurious articles, representing to have been manufactured by
others; and for nuisances and injuries to their neighbours, arising from the negligent use and
management of their property.

Married woman
A married woman at Common law could not be sued in tort unless her husband was joined
with her as defendant. No doubt she was as liable as anybody else in all real cases of tort ;
but, inasmuch as in the eye of the law she had no property of her own with which she could
pay damages, her husband had to be sued jointly which her. Her torts were therefore
regarded as torts of her husband, and it was even said that a married woman could not
commit torts, but could merely create a liability against her husband. He was answerable for
all his wife's torts during coverture, but the action must have beer against them both jointly.
The duration of the husband's liability varied according as he had or had not authorised the
tort committed by the wife. If he had authorised it he was liable to be sued at any time, but
if not he was to be sued during the coverture. As soon as the coverture came to an end by
divorce, or by the wife's death, the husband's liability ceased, even though an action to
establish it may have already been commenced. After the death of the husband the wife may
“be sued alone for all her tortious acts. If the husband died before judgment the widow
became personally liable as a feme sole for torts committed by her during marriage. For
torts committed by a woman before marriage her husband was also liable at Common law to
the full extent of the damages recovered.
 General defences
Meaning of General Defences
When a plaintiff brings an action against the defendant for a tort committed by him, he will
be held liable for it, if there exists all the essential ingredients which are required for that
wrong. But there are some defences available to him using which he can absolve himself
from the liability arising out of the wrong committed. These are known as ‘General
defences’ in the law of tort.
The defences available are given as follows:
 Volenti non fit injuria or the defense of ‘Consent’
 The wrongdoer is the plaintiff
 Inevitable accident
 Act of god
 Private defense
 Mistake
 Necessity
 Statutory authority

Volenti non fit injuria:

In case, a plaintiff voluntarily suffers some harm, he has no remedy for that under the law of
tort and he is not allowed to complain about the same. The reason behind this defence is that
no one can enforce a right that he has voluntarily abandoned or waived. Consent to suffer
harm can be express or implied.

Plaintiff the wrongdoer:

There is a maxim “Ex turpi causa non oritur actio” which says that “from an immoral
cause, no action arises”.
If the basis of the action by the plaintiff is an unlawful contract then he will not succeed in
his actions and he cannot recover damages.
If a defendant asserts that the claimant himself is the wrongdoer and is not entitled to the
damages, then it does not mean that the court will declare him free from the liability but he
will not be liable under this head.
Inevitable accident:
Accident means an unexpected injury and if the same accident could not have been stopped
or avoided in spite of taking all due care and precautions on the part of the defendant, then
we call it an inevitable accident. It serves as a good defence as the defendant could show
that the injury could not be stopped even after taking all the precautions and there was no
intent to harm the plaintiff.
Act of God:
Act of God serves as a good defence under the law of torts. It is also recognized as a valid
defence in the rule of ‘Strict Liability’ in the case of Rylands v. Fletcher[28].
The defence of Act of God and Inevitable accident might look the same but they are
different. Act of God is a kind of inevitable accident in which the natural forces play their
role and causes damage. For example, heavy rainfall, storms, tides, etc.

Private defence:
The law has given permission to protect one’s life and property and for that, it has allowed
the use of reasonable force to protect himself and his property.
 The use of force is justified only for the purpose of self-defence.
 There should be an imminent threat to a person’s life or property.
For example, A would not be justified in using force against B just because he believes that
someday he will be attacked by B.
Mistake:
The mistake is of two types:
 Mistake of law
 Mistake of fact
In both conditions, no defence is available to the defendant.
When a defendant acts under a mistaken belief in some situations then he may use the
defence of mistake to avoid his liability under the law of torts.

Necessity:
If an act is done to prevent greater harm, even though the act was done intentionally, is not
actionable and serves as a good defence.
It should be distinguished with private defence and an inevitable accident.
The following points should be considered:
 In necessity, the infliction of harm is upon an innocent whereas in case of private
defence the plaintiff is himself a wrongdoer.
 In necessity, the harm is done intentionally whereas in case of an inevitable accident
the harm is caused in spite of making all the efforts to avoid it.
Statutory authority:
If an act is authorized by any act or statute, then it is not actionable even if it would
constitute a tort otherwise. It is a complete defence and the injured party has no remedy
except for claiming compensation as may have been provided by the statute.
Immunity under statutory authority is not given only for the harm which is obvious but also
for the harm which is incidental.

Definition -
In discharge of tort, the circumstances are such the liability exists but remedy does not
exist. The meaning of discharge of tort is coming to an end of tort. It is a process by which
tort cease to exist and a wrongdoer is not liable for wrong committed by him.

There are some reasons grounds for discharge of tort which are as follows
Following are the grounds for discharged of tort.

A) Death of the parties -

The common law maxim 'actio personalis moritur cum persona ' which means
personal right of action dies with person.

1) Death of wronged person against whom the tort is committed.

2) Death of wrongdoer who has committed tort.
In case death of wronged person, the legal heir can claim damages from the defendant
for proprietary wrong. E.g. tort against property, in case of nuisance, trespass, negligence,
fraud, waste etc. But for the personal tort defendant cannot be sued. Even in case of death of
wrongdoer the legal heir of deceased are not liable for personal tort of wrongdoer.

Personal torts are those in which are affecting mind and body of the person. E.g. assault,
battery, false imprisonment, defamation etc.

B) Accord and satisfaction -

Accord means an agreement whereby a person agrees to accept some valuable
consideration in lieu of right of action that he has against the other. Satisfaction means actual
payment of amount of consideration so agreed to when there is an agreement and it is
satisfied by its executors, the agreement is termed as accord and satisfaction and it
discharged the tort.

The consideration may be treated in money or a compensation which is accepted by a

wronged person or his legal heirs and thereby settled the dispute do not proceed in court of
law.
When the agreement is executed and satisfaction has been made the agreement is called
accord and satisfaction and operates as a bar to the right of action. An accord and
satisfaction in favor of one joint tort-feasor operates in favor of all when the injury is one
and indivisible. Where damages are to be recovered, accord and satisfaction is good plea
action for libel and personal injuries.

C) Release -
A release is the giving up or discharging the right of action which a man has or may
have against another man. The wronged or aggrieved person giving up the entire claim or
discharged right which he has against the wrongdoer. This release should be voluntarily and
not by threat, compulsion or force. In England the release is with consideration and writing
but it is valid even without consideration and in writing. The injured, wronged person does
not proceed in court of law against wrongdoer. A lease executed under mistake, or in
ignorance of one's right or obtained by fraud is not valid. A convenient not to sue one of the
two joint tort -feasors, doesn't operates as a release so as to discharge the other.
D) Judgment -
Judgement by the court of law. If the matter is decided conclusively and finally by
the competent court then for the same cause of action, between the same parties the matter
cannot be reagitated again and further or fresh suit is debarred.

E) Law of limitation –
The law prescribes limit within which an action must be brought for the wrong
and if this prescribed period is over, expired, the right of action is barred and remedy ceased
to operate law helps those only that is diligent about their right. Delay defeat equity .Law
will not help to those who were sleeping over their right for pretty long time.
In England the limitation Act, 1939 as amended by law reform (limitation of
actions etc.) Act 1954,fixes time during which action of tort must be brought. On the other
hand in India. Indian limitation Act 1963, provides the prescribed period during which
existing right can be enforced in the court of law. It does not create nor define any cause of
action the object of the Limitation Act is to enable the parties to file suit within certain
period and forbid them from filing suit after period.
The object of the law of Limitation is to ensure private justice to suppress and perjury and
to quicken diligence and to prevent oppression.

F) Waiver by Election -
 Where man has more than one remedy for tort and he elect pursue one of them,
giving up the others, the other remedies are waived. He cannot pursue them if he fails in the
one elected. Waiver is express or implied express when the person entitled to anything
expressly and in terms give it up in which case it nearly resembles release ;implied, when
the person entitled to anything does or acquiesces in something else which is inconsistent
with that to which he is so entitled.
In short waiver means to give up; the aggrieved or wronged person gave up his right of
action against the wrongdoer. For some reason and do not proceed in court of law.
G) Acquiescence –
This shows an inactivity of person. The aggrieved person does not proceed in court of
law because of his own incapacity. i.e. .if he has no money to pay court stamp fee or an
Advocates fee, or he don't have time to go in the court of law and file the suit for
compensation. Where a person who knows that he is entitled to enforce the right, neglects to
do so for a length of time .the other party may fairly infer that he has waived of abandoned
his right. But to deprive man of his legal remedies there must be something more than
delay.
Leading Cases:
Nitroglycerin case: In this case Nitroglycerin packed in a box was sent through a common
carrier. As there was some leakage, the servants of the carrier opened the box in the
premises of P with a view to preventing the leakage. There was an explosion resulting in
damage to the premises of P. P sued for damages.

It was held that the defendant had taken all precautions and that he was not negligent. The
defendant did not know the contents of the box and had no knowledge also. The accident
was beyond the standard of a reasonable man. Hence the defendant was held not liable.

Fighting Dogs case: In this case the dogs of P and D were, fighting. D was beating with a
stick to separate them. P was the onlooker. Accidentally D hit P in the eye resulting in a
serious injury. It was held: D was not liable as there was no negligence. The hit was
inevitable and could not be prevented (Brown v. Kendal)

Dog and Motor-car Case: A dog, quiet and docile, had been put by D in his motor car
which had been parked on the road side. P was walking along- side the road. The dog
jumped, barked and smashed the window glass pane. A splinter entered the eye of P causing
injury. Held this was inevitable accident and D was not liable. (Fordon v. Harcourt)
 Vicarious liability
‘It is entirely appropriate that all businesses be responsible for the torts of their
employees’.
Vicarious liability is where one person is held liable for the torts of another, even though
that person did not commit the act itself. It is therefore a form of strict liability (in that the
defendant is not at fault). The most common form of vicarious liability is when employers
are held liable for the torts of their employees that are committed during the course of
employment. The issue of vicarious liability can be seen to be unjust in that someone who is
not at fault can be held liable.
Vicarious Liability Case Summaries
In order to establish liability on the part of the employer, several requirements must be
satisfied. Firstly, the wrongdoer must be an employee (as opposed to an independent
contractor), the employee must have committed a tort and the tort must have been
committed in the course of employment.
Over the years, the courts have been highly inconsistent in relation to the decisions they
have made in this area of tort law, making it difficult to establish whether the use of
vicarious liability is entirely appropriate.
One problem in particular the courts have had is in determining what constitutes the
classification of an employee. This is partly due to there being so many different
employment relationships. One of the early tests to determine this issue was the Control
Test which asked whether the ‘Master’ had the right to control what was done and the way
it was done. However, this test was seen to be inappropriate, except perhaps in cases of
borrowed workers, as in Merseyside Docks & Harbour Board v Coggins and Griffiths. The
courts then recognised that a single test was not enough to determine employment status so
the courts developed a multiple test in Ready Mixed Concrete v Minister of Pensions,
whereby all factors in the relationship should be considered. All tests are open to
interpretation and there is no conclusive or definitive test; in the case of Hall v Lorimer the
Court of Appeal said no single test is absolute.
This difficulty in determining who shall be classed as an employee backs up the argument
that imposing vicarious liability is not entirely appropriate.
However, in certain situations the courts have clarified the position with regard to some
workers; in Cassidy v Ministry of Health it was held that doctors are employees and in
Netheremere Ltd v Taverna & Gardiner it was held that outworkers (people who work from
home) could be classed as employees if they are doing the same work as those in the
workplace.
Some workers have been identified as not falling within the definition of employee e.g.
apprentices and trainees (Wilshire Police Authority v Wynn). This means that victims are
not compensated, which seems unjust especially since the apprentice is carrying out
activities associated with the employer.\
An employer will only be liable for the torts of their employees if they are committed
during the course of employment rather than, as the courts put it, ‘on a frolic of his own’
(Storey v Ashton). This is another area of vicarious liability that the courts have found
particularly difficult to agree on. The traditional test for determining this is the Salmond test
which states that a tort will be committed in the course of employment if it is either (a) a
wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing
some act authorised by the master.
The second limb of this test brings about unfairness, as even when the employee’s conduct
has been expressly prohibited by the employer, if the act itself is authorised then the
employer will still be liable (Limpus v London General Omnibus Co). On the other hand, it
would seriously undermine the operation of vicarious liability if an employer was able to
avoid liability simply by forbidding their employees from doing certain acts.
This test was also criticised on the basis that it had clearly been devised to cover only
negligent acts of an employee and therefore did not consider intentional torts.
However, this restrictive test was largely improved after the decision of the House of Lords
in the controversial case of Lister v Hesley Hall, where a warden sexually abused young
boys at the home where he was employed to look after them. The House of Lords held in
this case that an employer would be vicariously liable for an employee’s tort if there was ‘a
close connection with the employment’.
The crucial issue here is whether the connection between the work and the tort is
sufficiently close or whether the job has merely provided the opportunity to commit the tort.
In Lister, the warden’s job was to take care of the boys and supervise them, so because the
abuses occurred when he was in charge of them, it was held to be a close connection. Lord
Hobhouse gives an example that if a groundsman employed by the school had done as the
warden had, he would have been outside the course of employment because ‘he was
employed to look after the grounds, not to have anything to do with the boys’.
In his journal article ‘Making a Connection’, Charlies Pigott wrote that ‘Lister broke new
ground because the Court of Appeal had decided a few years earlier, in Trotman v North
Yorkshire County Council, that no vicarious liability could attach for sexual abuse because
it could not be regarded in any sense as a mode of carrying out the employee’s duties’. The
decision in Lister therefore widened the scope of this area of law by making it easier to find
an employer liable for the torts of their employees, effectively and perhaps appropriately
lowering the number of victims going uncompensated.
This decision has been followed in several other cases, including Mattis v Pollock and the
2010 case of Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic
Church, which involved a priest’s sexual abuse of a young boy.
It is unclear whether the ‘close connection’ test will replace the Salmond test or be restricted
to cases where an employee has engaged in criminal conduct. According to Mullis and
Oliphant ‘whatever test is chosen, it is likely to remain a very difficult question in many
cases whether conduct is or is not within the scope of employment; much will depend in the
end on whether in all the circumstances the court thinks the employer ought to be held
liable.’ This idea of making decisions on a case by case basis has thrown the law on
vicarious liability into major uncertainty.
However, this new principle does provide a means of achieving justice in those cases in
which the traditional approach proves problematic.
Problems also arise with regard to unauthorised lifts contrary to instructions as in Rose v
Plenty. It does not seem appropriate that even when the employer prohibits the activity, he
is still held liable if the act was beneficial to him. However, if the employer does not benefit
from the act then he may not be liable, as in Twine v Bean’s Express. This shows that there
is a very fine line between what does and does not attract vicarious liability, causing
confusion and uncertainty.
There are, however, some justifications for the imposition of this tort. As pointed out by
Atiyah, the principle of vicarious liability needs to be justified, as holding someone liable
for the acts of another is contrary to English law in that people should only be liable if they
are at fault.
One justification is that the purpose of employment is to allow the employer to benefit from
the employee’s work and so it seems feasible that the employer should bear the
consequences. If there were no vicarious liability, then there would be no incentive for
employers to minimise risks and increase standards of safety in the working environment.
The courts also view the imposition of vicarious liability as just due to the employer having
a degree of control over his employees and has the ultimate power of dismissal, so they
should ensure that employees do not carry out their work in a careless way. However, this is
now seen to be outdated as many employees perform skilled tasks that the employer may
not understand (Cassidy v Ministry of Health).
Furthermore, in ICI v Shatwell, Lord Pearce stated that vicarious liability is essentially a
matter of public policy and social convenience, as an employer will generally be in a better
financial position than his employees and so they are more able to meet the cost of claims.
This so-called ‘Deep Pockets Theory’ states that not only do employers have more money,
they also hold insurance. In addition to this, employers can distribute any losses they bear to
the consumer by increasing prices of products or services.
Recently, however, reasoning has now moved towards the idea that the employer has
created the relevant risk of harm in the first place by employing the wrongdoer. But as
Claire MvIvor states, ‘if the courts continue to rely alone on the basic notion of risk
creation, then it will be difficult to impose any kind of limit on the operation of the doctrine
of vicarious liability’.
In conclusion, the concept of vicarious liability is a very complex issue, as it is torn between
trying to protect the right of the victim to gain sufficient compensation and trying to protect
the employer from being overburdened by their employees.
Although it goes against the principle that wrongdoers should pay for their own acts, the
doctrine of vicarious liability seems appropriate as it does serve a useful purpose; it
contributes to the maintenance of safety standards and it enables the victims of negligence
by employees to be reasonably certain that someone will be in a position to pay them
compensation.

Remedies

Introduction

Let us begin this topic by understanding what ‘remedy’ actually means in Law. A party is
said to be ‘aggrieved’ when something that they may have been enjoying has been taken
away from them by another party. This is an infringement of a party’s rights and it is
treatable by law. A legal remedy is one such treatment. When the aggrieved person is taken
back to the position that they were enjoying before their rights were infringed, they are said
to have been provided with a legal remedy. There are various types of legal remedies. For
instance, if something that belongs to you has been taken away from you by a party, the
court can either ask them to pay you back in money, or ask them to return your belongings
as they were, and may also punish the party in some cases. There are two broad types of
remedies in Tort Law.

1. Judicial Remedies
2. Extra-Judicial

Remedies Judicial Remedies

As the term suggests, these are the remedies that the courts of law provide to an aggrieved
party. Judicial remedies are of three main types:

1. Damages
2. Injunction
3. Specific Restitution of Property

1. Damages

Damages, or legal damages is the amount of money paid to the aggrieved party to bring
them back to the position in which they were, before the tort had occurred. They are paid to
a plaintiff to help them recover the loss they have suffered. Damages are the primary
remedy in a cause of action for torts. The word “damages” should not be confused with the
plural of the word “damage”, that generally means ‘harm’ or ‘injury’.
General and Special Damages:

When there is a direct link between the defendant’s wrongful act and the loss suffered by
the plaintiff. For instance, a person A, due to his negligence, collides his car with a person
B, who has a rare bone condition. In this case, the actual damage suffered by the plaintiff
will be compensated, not taking into account the rare bone condition of the plaintiff.
General damages are ascertained by calculating the amount of actual loss suffered by the
plaintiff. For e.g, physical pain and loss caused due to it, or if the quality of life of the
plaintiff is lowered.

Special damages are awarded by proving special loss. There is no straitjacket formula to
derive the actual amount. The plaintiff just has to prove the loss suffered by him/her. For
e.g., medical expense, loss of wage (prospective), repair or replacement of lost or damaged
goods/property.

2. Injunction
Injunction is an equitable remedy available in torts, granted at the discretion
of the court. An equitable remedy is one in which the court, instead of
compensating the aggrieved party,asks the other party to perform his part of
the promises. So, when a court asks a person to not continue to do
something, or to do something positive so as to recover the damage of the
aggrieved party, the court is granting an injunction. A very simple example is
that of a court ordering a company of builders to build on a land near a
hospital, for the construction sounds may be creating a nuisance to the
hospital.

3. Specific Restitution of Property

The third judicial remedy available in the Law of Torts is that of Specific
Restitution of Property. Restitution means restoration of goods back to the
owner of the goods. When a person is wrongfully dispossessed of his
property or goods, he is entitled to the restoration of his property.

Extra-Judicial Remedies

When a person can lawfully avoid or remedy himself without the intervention of courts, the
remedies are called extra-judicial remedies. In this, the parties take the law in their own
hands. Some examples are:

Expulsion of trespasser

A person can use a reasonable amount of force to expel a trespasser from his property. The
two requirements are:

The person should be entitled to immediate possession of his property.

The force used by the owner should be reasonable according to the circumstances.

Illustration: A trespasses into B’s property. B has the right to use reasonable force to remove
him from his property and re-enter himself.
Re-entry on land

The owner of a property can remove the trespasser and re enter his property, again by using
a reasonable amount of force only.

Re-caption of goods

The owner of goods is entitled to recapture his/her goods from any person whose unlawful
possession they are in. Re-caption of goods is different from specific restitution in that it is
an extra-judicial remedy, in which the person need not ask the court for assistance, instead,
takes the law in his own hands.

Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to use

reasonable force to get them back from A.

Abatement

In case of nuisance, be it private or public, a person (the injured party) is entitled to remove
the object causing nuisance.

Illustration: A and B are neighbours. Branches of a tree growing on A’s plot enter B’s
apartment from over the wall. After giving due notice to A, B can himself cut or remove the
branches if they’re causing him nuisance.

Distress Damage Feasant

Where a person’s cattle/other beasts move to another’s property and spoil his crops, the
owner of the property is entitled to take possession of the beasts until he is compensated for
the loss suffered by him.

Conclusion

In torts, the object behind remedying a party is to take the aggrieved party back to the status
or position that they were enjoying before the occurrence of tort. It is not to punish the
defendant, as in crime. Remedies can be judicial and extrajudicial. When due process of law
is required for a party to gain remedy, and the courts are involved, the remedies are called
judicial remedies. When the law is taken in his/her own hands by the parties, they are called
extra-judicial remedies.