Introduction to Tort -Unit 1-KSLU-2023.pptx

introduction to tort

1. INTRODUCTION TO LAW OF TORT Dr. Vani K G Ass istant Professor of Law, RCL

2. Introduction to law of Torts ▶ A tort is a civil wrong. It is basically a breach of duty imposed by law, which gives rise to a civil right of action for a remedy not exclusive to any other area of law. ▶ Tort means twist and implies conduct which is twisted or tortious Evolution of Law of Tort It came to India through England. In 1065 England was conquered by Normans, who were the French speaking people of Normandy, a region of France. After Norman Conquest, French became the spoken language in the courts in England and thus many technical terms in English Law owe their origin to French and tort is one of them. The word tort is based on the idea that everyone in the society is having certain rights. The purpose of tort is to enforce the right and duties.

3. Law of Torts in India ▶ Hindu Law and Muslim Law- Narrow Conception ▶ English Law- Broad conception- punishment of crimes and compensation for wrongs ▶ 1 st British Courts- Mayor’s Courts- Presidency Towns such as Calcutta, Bombay & Madras ▶ Law of torts is part of common law system & it was adopted from UK i.e English Law of Torts came to be applied by the High Court of Calcutta, Bombay and Madras. ▶ “ Justice, equity and good conscience” was interpreted by the Privy Council to mean “ the rules of English law if found applicable to Indian society and circumstances- Jaylaxmi Salt Works ( P) Ltd v State of Gujarat (1994) 4 SCC 1: JT 1994( 3) SC 492 Justice Sahai observed “ Truly speaking entire law of torts is founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently”

4. Defining tort “ Tortuous liability arises from the breach of duty primarily fixed by law, such duty is towards person generally and its breach is redress able by an action for unliquidated damages ” -Winfield ‘ Primarily fixed by law ’ – shows distinction between breach of contract and tort “ the law of torts is concerned with the redress of wrongs or injuries (other than breaches of contract) by means of a civil action brought by the victim. This redress most commonly takes the form of damages, that is to say, monetary compensation ” -Rogers on Torts

5. Salient points – to discuss ▶ Tort is a civil wrong; ▶ This wrong is other than mere breach of contract or breach of trust; ▶ This wrong is redressible by an action for unliquidated damages ;

6. Contd ▶ Tort is a French word derived from the latin term ‘Tortum’- any wrongful act/ any means a conduct which is not straight or lawful/twisted/ cribbed act/ civil wrong/ delict ( roman term) It was introduced into English law by Norman Jurists. ▶ Tortum which means ‘to twist’. Thus, “tort” means a conduct which is not straight or lawful, but on the pther hand, twisted, crooked or unlawful. It is equivalent to the English term ‘wrong’. ▶ Law of Tort has been made from judicial pronouncements. ▶ ‘Tort feasor’ – person who commits tort/ civil wrong which amounts to ‘tortious act’ ▶ A Tort may be defined as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages ▶ Definition by Salmond: “ It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or breach of a trust or other merely equitable obligation” ▶ Winfield, “ Tortious liability arises from the breach of a duty primarily fixed by the law : this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” ▶ Fraser, “ It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.

7. ‘ tort ’ or ‘ torts ’ ▶ Is every wrongful act, for which there is not justification or excuse to be treated as a tort? Or Winfield prefers this view point ▶ Is only few number of specific wrongs beyond which the liability under this branch of law cannot arise? Salmond prefers this view point

8. Nature and Concept of Tort ▶ A tort is derived from the Latin word ‘ tortus’ which means wrong or crooked. It implies to conduct which is notorious or twisted. ▶ The equivalent word in English is wrong. ▶ Thus, tort in common law is a civil wrong. ▶ The nature of Tort law is thus essentially concerned with compensation for damages for civil wrongs suffered as a result of another’s acts or omissions.

9. What is Tort Law? ▶ The civil wrong surfaces as a result of the breach (an act of breaking or failing to observe a law, agreement, or code of conduct.)of a duty imposed by law. ▶ Thus there are, for example, duties not to assault another person, not to trespass (entering onto land without the consent of the landowner) on another’s land, not to take another’s goods, and to take care to not injure one’s neighbor. ▶ Some duties are laid down by legislation; others are found in the common law. ▶ The emphasis on the nature of tort as a civil wrong differentiates it from crime.

10. Tort Crime Private Wrong Public Wrong Breach of Private Duties Breach of Public Duties Object of action is compensation Object of action is punishing the wrong does Individual has to approach a Civil Court for redressal State initiates prosecution against the wrongdoer Difference between Tort and Crime

11. Characteristics of a Tort ▶ Tort is a private wrong that contravenes the legal right of an individual or a group. ▶ The person who engages in tort is called “tort-feasor” or “Wrongdoer”. ▶ The place of trial for tort is Civil Court. ▶ Tort litigation is compoundable which means that the complainant can withdraw the suit filed by him. ▶ Tort is a specie of infringement (the act of breaking the terms of a law, agreement, etc.; violation) of a person’s rights or civil wrong.

12. Intentional Tort Negligence Strict Liability If the tortfeasor (wrongdoer) acted with intent to cause the damage or harm. If the tortfeasor did not act intentionally but nonetheless failed to act in a way a rational person would have acted. If the tortfeasor is engaged in certain activities and someone is injured or killed, the tortfeasor is held liable no matter how cautious or incautious he or she has been. Against the Person: Assault, Battery*, Infliction of mental distress, False imprisonment Against the Property: Trespass A d v e r t e n t N e g li g e n ce: Example: A person who drives angrily in a crowded street causes injury to a person is said to have committed Advertent Negligence Inadvertent Negligence: Example: Doctor who treats a patient with negligence Inherently dangerous activities Types of Torts There are three types of torts depending upon the tortfeasor’s intent

13. TORT Law of Contracts Tort is breach of duty recognized under the law of tort Tort aims at allocation or prevention of losses Ex: Trespass Breach of Contract is the non-performance of a duty undertaken by a party to a contract. Contract aims to see that the promises made under a contact are performed. Ex: Contract of Employment Violation of ‘Right in rem’ Right vested in some determinate person, either personally or member of community and available against the world at large Violation or infringe of a ‘Right in personam’ Right available only against some determined person or body. There is no concern about the community. No concept of Privity An action for breach of contract necessitates privity between parties. Privity of Contract Inflicted against or without consent Founded upon consent It is essential to measure the damages and compensation. Similar in property but injury to person then he may be awarded aggravated damages. In breach of contract the motive for breach is immaterial. Damages are only as a measure of compensation. Exemplary Damages Rarely in Contract Liability is incurred even if there is no contract Limited liability of persons according to Contract( not a party to contract)

14. Contd ▶ Ex: Father- Son- Treatment in Hospital- Surgeon ▶ Father & Surgeon ( Contract for breach) Son & Surgeon ( Tortious liability) ▶ Gladwell v Steggall- held that even beneficiary to the contract can also sue to contract. ▶ Tort is a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere breach of contract or breach of trust. ▶ 1. Tort is civil wrong ▶ 2. Tort is other than a mere breach of contract or breach of trust Ex: Horse & Bailment ▶ 3. Tort is redressible by an action for unliquidated damages.

15. Distinction between Tort, Crime, Contract, Quasi Contract ▶ Certain Cases when the same facts results in breach of contract as well as tort. ▶ Ex: If due to the negligence of driver a railway passenger is injured, the railway authorities are liable for breach of contract of safe carriage, there is also tort of negligence which results in damage of the passenger. Ex: Horse/ Bailor & Bailee/ Death due to starvation ▶ Privity of Contract and Tortious Liablity Ex: Donoghue v Stevenson 1932 ▶ Klaus Mittelbachert v East India Hotels ( AIR 1997 Delhi 201-Contract between Lufthansa, a german airlines and Hotel Oberoi Inter-Continental- Co-pilot- defective design of swimming pool-head injuries- 13 years later died. The case was upheld as he was the beneficiary even if the contract was between the employer and hotel. Due to the hazardous nature of premise and defendants were required to pay exemplary damages of 50 lakhs rupees. When the defence was taken that the person was a stranger to contract the Court rejected the plea and held that for an action in Tort, for compensation the plea of stranger to contact was irrelevant. Due to hazardous nature of the premises, the rule of absolute liability was applied and defenedants were required to pay exemplary damages of 50 lac rupees.

16. Distinction ▶ Tort and Breach of Trust Ex: A tradesman leaves goods at B’s house by mistake A & B jointly owe Rs 100 to C, A pay the amount to C, B not knowing the fact, pays 100 over again to C, C is bound to repay the amount to B Tort and Quasi Contract Quasi Contract gives a right with respect to money and only generally it is liquidated sum of money but law of tort, apart from right to damages, grant other remedies also.

17. Elements of Tort ▶ 1. Wrongful Act- Ex: Pvt Rights – Right to good reputation/ Rt to safety and Rt to property. ▶ 2. Legal Damages to Plaintiff- Injuria Sine Damnum( Legal Right injury without any damage) Injury without damage (Ashbey v White ) Voter Case 1703 ▶ & Damnum Sine Injuria ( Damage without any injury to the legal right of a person) ▶ Glucoster Grammar School Case 1410 ▶ 3. Legal Remedy- Ubi jus ibi remedium ( Where there is right there is remedy) ▶ Essential s of Tort ▶ 1. Act or Omission ▶ 2. Legal Damage

18. Some General Elements in Torts ▶ 1. Act & Omission ▶ 2. Voluntary and Involuntary Acts ▶ 3. Mental Elements ▶ A) Malice ▶ B) Intention, Negligence and Recklessness ▶ C) Motive ▶ D) Distinctions Illustrated ▶ 4. Malfeasance: Misfeasance: Nonfeasance ▶ 5. Fault

19. Essentials of tort Generally to constitute tort following conditions are to be satisfied There must be some ‘ act ’ or ‘ omission ’ on the part of the defendant; and The ‘ act ’ or ‘ omission ’ should result in ‘ legal damage ’ (injuria) i.e., violation of a legal right vested in the plaintiff;

20. “If a man has a right, he must be of necessity have a means to vindicate & maintain it, & a remedy if he is injured in the exercise or enjoyment of it and it is a vain thing to imagine a right without a remedy : want of right & want of remedy are reciprocal” - Holt, C.J. in Ashby v. White.

21. Some General Elements in Torts ▶ Act: Failure to do something in doing an act is not an omission but a bad way of performing the act. ▶ Ex: If a lawyer gives an opinion without taking notice of the change in law brought about by a reported decision of the Supreme Court, he would not be guilty of an omission but of performing the act of giving his opinion in a bad way. ▶ An omission i s failure to do an act as a whole. ▶ Ex: Stovin V Wise (1996) - A person cannot be liable for omission of not rescuing a stranger child whom he sees drowning, even though he can rescue him out any appreciable exertion or risk of harm to himself. But the result would be different if the child is one whose safety and welfare there is a duty laid on the person who finds him drowning Therefore the parent or guardian would be held liable for failure to attempt a rescue, it could be then an act of omission where there is a duty to act. ▶ Leakey v National Trust for Places of Historic Interest or National Beauty (1980) - Liability arises not because of any omission but for doing an act of rescue in a bad way. ▶ Ex: Actionable omission can be found in the duty of an occupier to abate a natural hazard. A person on whose land a hazard naturally occurs and which threatens to encroach on to another’s land thereby threatening to cause damage, is under a duty, if he knows or ought to know of the risk of encroachment, to do what is reasonable in all the circumstances to prevent the risk of the known or foreseeable damage to the other person or his property and is liable in nuisance if he does not.

22. Voluntary & Involuntary Acts ▶ Voluntary ▶ 1. a willed muscular contraction ▶ 2. Its circumstance ▶ 3. Its consequences ▶ Ex: Pistol ▶ Ex: Parent fails to rescue child because he has fallen asleep or suffering from insanity, omission is involuntary that does not involve any question of muscular contraction. ▶ An involuntary act does not give rise to any liability ▶ Ex: an involuntary act of trespass is not a tort. ▶ Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545 : The Supreme Court referring to the inordinate helplessness of pavment dewellers of Bombay observed, “ The inordinate helplessness of pavment dewellers of Bombay observed “ The encroachments committed by the persons are involuntary acts in the sense that the acts are compelled by those persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice” ▶ The SC held that trespass is a tort and pointed out that the necessity is a plausible( reasonable) defence. Has the Court intended to lay down that the encroachment were involuntary in the sense known to the Law of Torts and for that reason not actionable, there is no question of suggesting necessity as a defence.

23. 3. Mental Elements ▶ Even a voluntary act, except in those cases where the liability is either strict or absolute is not enough to fasten liability and it has to be accompanied with requisite mental element i.e malice, intention, negligence or motive to make it an actionable tort assuming that other necessary ingredients of the tort are present. ▶ A) Malice means spite or ill-will. But in law has two distinct meaning ▶ (1) Intentional doing a wrongful act : Malice is synonymous with intention . ▶ (2) Improper motive: Malice refers to the motive and in this sense it includes not only spite or ill-will but any motive which the law disapproves. ▶ Justice Bayley “Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally without just cause or excuse”. ▶ Ex: Poison or injury due to which there is permanent damage to cattle without knowing- It is done out of malice because it is a wrongful ( infringement of some rights) act and done intentionally.

24. Malice ▶ Malice : Intentional wrong doing which is also known as “malice in law”. Thus, malice in law means an act done wrongfully and without reasonable and probable cause and not as in common parlance, an act dictated by angry feeling or vindictive motive.- Stockley v Hornidge (1837) ▶ “Malice in law” is “implied malice” when from the circumstances of the case, the law will infer malice. ▶ Malice in the second sense, i.e improper motive is sometimes known as “express malice”, “ actual malice” or “ malice in fact” which are all synonymous expressions indicating the same meaning. ▶ Malice in this sense i.e improper motive for example: relevant in the tort of malicious prosecution.

25. Contd ▶ B) I ntent i o n , N e gl i gence a nd R e c kless n ess: ▶ “Intention” is an internal fact, something which passes in the mind and direct evidence is not available. An act is intentional as to its consequences if the person concerned has the knowledge that they would result and also desire that they should result. ▶ “Negligence”- when the consequence are not adverted to though a reasonable person would have foreseen them. ▶ It is “recklessness” when the consequences are adverted to though not desired and there is indifference towards them or willingness to run the risk. ▶ Recklessness is something called “Gross negligence” but very often and more properly it is assimilated with intention.

26. ‘ Intention ’ and tort law ▶ “ intention” signifies full advertence in the mind of the defendant to his conduct which is in question and to its consequences together with a desire for those consequences ” - Winfield ▶ “ the intentions of men inference of reason from their actions where the action can flow but from one motive, and be the reasonable result of that one intention ” - Fitzgerald, J ▶ Intention, (except in a few cases) does not play any role in determination of liability under tort

27. ▶ Intention means a desire to produce a consequence. An antecedent knowledge on the part of the defendant of the injurious consequence of his conduct A desire on his part to produce such injurious consequence ▶ In tort the consideration of intention has no importance. It is the act which is judged because the aim of the law of torts is not to punish the wrongdoer but to award compensation to the injured person. In large number of cases, the absence of intention or bona fide mistake is defence .

28. ▶ When damage complained of is the result not of positive act but of intentional omission the same rule that there is no need of intention in tort will apply. e.g., a nurse deliberately allows a child to get into a position of danger & receive injuries, she will be liable. Under criminal law mere act of a person is not enough to create his liability. ▶ Mens rea or guilty mind is also required. Here it is not the intentional omission which is the basis of liability, but it is the breach of her duty to look after & take care of the child. ▶ Some torts such as, assaults require intention on the part of the wrongdoer. But the problem is how to ascertain the intention of a man, ‘for the devil himself knoweth not the thought of man’. ▶ Because no one can know what is passing in the mind of another man, the courts try to ascertain the defendant’s intention by drawing inference from his conduct.

29. M o t i ve ▶ It has been described as the ‘ulterior intent’. ▶ It is generally irrelevant in determining whether an act or omission is a tort or not. ▶ An act which is lawful cannot become unlawful merely because it is done with an evil motive. ▶ It is the act not the motive for the act that must be regarded. If the act, apart from the motive, gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element. If an act is prima facie lawful, it would not be rendered unlawful because it was inspired by a malicious motive. ▶ Mayor & Co. of Bradford v Pickles (1895) AC 587- Cutting off underground water supply- percolating water & preventing from entering the water in his neighbour’s land which dried up the entire well & sank. Thus the defendant was not held liable. ▶ Ex: Man throwing stone to a women/ third person twist the arm of the person holding the stone and stone gets released, the act of the person holding the stone is involuntary and so he would not be liable for trespass, but the person twisting the arm and compelling the release of the stone so that it may hit the woman will be guilty of trespass.

30. Vishnu Basudeo v. T.L.H. Smith Pearse, AIR 1949 Nag. 364. ▶ J. Mud h ol k ar obse r v e d : “ t h e l eadin g c a se o f A l len v . F loo d , la y s d o w n that as a general rule, a bad motive is not an essential condition of liability for a civil wrong except in cases like malicious prosecution, defamation and conspiracy. What has ordinarily to be seen is the unlawful act. If it is so, then motive with which it was done is of little significance. In this case, however, it has been held that the act must be presumed to have been intended by the respondent to cause mental and bodily distress to an appellant. I agree with this view.”

31. ‘ malice ’ and tort law ▶ The word ‘ malice ’ in law means something more than mere evil motive ▶ The ‘ malice in law ’ denotes an act done wrongfully without just cause or excuse – it does not denote as in common usage an act dictated by angry feeling or vindictive motive ▶ Generally it is irrelevant in determining whether an act or omission is a tort or not. ▶ An act which is lawful cannot become unlawful merely because it is done with an evil motive.

32. ▶ Lo r d W atso n in A ll e n v . Flood ▶ “Although the rule may be otherwise with regard to crime, the law of England does not take into account motive as constituting an element of civil wrong. ▶ Any invasion of the civil right of another person is itself a legal wrong, carrying with it liability to repair its necessary or natural consequences in so far as those are injurious to the person whose right is infringed, whether the motive which promoted it to be good, bad or indifferent”.

33. ▶ Mayor of Bradford v Pickles, 1895 AC 587 ▶ Pi c k l e s wi t h t h e mali c e in t en t – d r aw wa t e r f r om hi s land so w hi c h percolated through the soil of his land in unknown and undefined channels from the land of the corporation ▶ The corporation sued for an injunction to restrain Pickles from diminishing or polluting their water is wrong as it was backed by ill motive ▶ The court did not accept the contention

34. Town Area Committee v Prabhu Dayal, [AIR 1975 All 132] ▶ Suit for compensation was filed by the plaintiff against the Town Area Committee for the demolition of his constructions protruding on to the road, without due notice ▶ Court found that the plaintiff himself was guilty of constructing the building illegally without obtaining proper sanction from Town Area Committee ▶ Held, that demolition of an unauthorized building is not injuria to the owner and therefore, can ’ t get compensation. ▶ “The Plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise. Malice does not enter the scene at all. A legal act though motivated by malice, will not make the actor liable to pay damages….. Mere malice cannot disentitle a person from taking recourse to law for getting the wrong undone. It is, therefore, not necessary to investigate whether the action was motivated by malice or not”.

35. The Case of Thorns ▶ The defendant & the plaintiff were the adjoining owners. While the defendant was cutting the thorns which had grown on his boundary some of them fell upon the plaintiff’s land and in order to recover them, he entered the plaintiff’s land. ▶ In an action of trespass by the plaintiff the Court held that motives are irrelevant, and even a desire to recover his own property will not excuse the defendant from liability for unauthorized trespass upon another’s land. ▶ The law in general asks merely what the defendant has done, and not why he did it. ▶ A good motive is no justification for acts otherwise illegal and a bad motive does not make wrongful an act otherwise legal.

36. 4. Malfeasance : Misfeasance : Nonfeasance ▶ “Malfeasance”- applies to the commission of an unlawful act, It is generally applied to those unlawful acts, such as trespass, which are actionable per se and does not require proof of intention or motive. ▶ The term “misfeasance” is applicable to improper performance of some unlawful act, for example, when there is negligence . ▶ The term “non-feasance” applies to omission to perform some act when there is an obligation to perform it.- Jay Laxmi Salt Lt v ST of Gujarat 1994 SCC ▶ Non-feasance of a gratuitous undertaking does not impose liablity but misfeasance does. – Elsee v Gatward( 1793) ▶ The terms malfeasance, misfeasance and non-feasance are very wide but they cannot cover a case of breach of public duty which is not actuated with malice or bad faith such as defective planning and construction of a bundh- Jay Laxmi Salt Lt v ST of Gujarat 1994 SCC

37. 5. Fault ▶ The damage caused to a person when no legal right is violated does not give rise to any tortious liability even if act causing the damage is done intentionally with an improper motive. It has also been seen that mental element such as intention, negligence, malice, motive in association with an act or omission which is violative of a right recognised by law plays an important role in creating liability.- ▶ Rylands v Fletcher (1868) LR 3 HL330: It was held that the occupier of land who brings and keeps upon it anything likely to do damage if it escapes is bound at his peril to prevent its escape and is liable for the direct consequences of its escape even if he has not been guilty of any negligence. It lays down the rule of strict liability. Under this rule, is a person makes non-natural use of his land by collecting there something which is likely to do mischief by escape, he will be liable if the thing so collected escapes and causes damage. ▶ Liablity is also strict when a person knowing the dangerous nature of an animal keeps the same. Similarly, in the case of hazardous and inherently dangerous industry, the principle of absolute liability has been developed. ▶

38. M C Mehta v Union of India AIR 1987 SC 1086- holding an enterprise engaged in hazardous or inherently dangerous activity is strictly and absolutely liable for the harm resulting from the operation of such activity. Mohd Quamuddin v Union of India WP ( c ) 8525/2008- Strict & Absolute Principle of Tortious liability does not apply in cases where a trespasser by his own negligence intervenes in the activity of another & is harmed in the process. Another example of liability without fault is the liability of a master for the tort committed by his servants in the course of employment. There are also many duties and liabilities imposed by statutes on employers. Ex: Factories Act- Workmen’s Compensation Act, 1923 where element of fault is absent.

39. Liability without fault ▶ There are certain cases where the normal element is quite irrelevant and the liability arises even without any wrongful intention or negligence on the part of the defendant. Innocence of the defendant or an honest mistake on his part is no defence. ▶ Ex: Consolidated Co. V Curtis ( 1892) An auctioneer who sells the goods under an authority from the customer having no title to the goods under an authority from a customer having no title to the goods, is liable for conversion, even though at the time of sale he honestly believed that the customer is the true owner .

40. Malice in Law & Malice in Fact ▶ 1. In its legal sense, it means a wilful act done without just cause or excuse and it is know as malice in law ▶ 2. In its narrow sense, it means an evil motive and the same is malice in fact. ▶ Malice in law means a wrongful intention which is presumed in case of an unlawful act, rather than a bad motive or feeling of ill will. ▶ For example: In an action for defamation, it may be mentioned that the alleged statement was published falsely and maliciously. It means that statement is false and is also made without lawful justification. ▶ Malice in fact or evil motive or actual malice: It is an evil motive for wrongful act.

41. ‘ Act ’ or ‘ omission ’ ▶ Both ‘ act ’ and ‘ omission ’ are included ▶ The w r ongf u l ac t or o m ission mus t b e one recognized by law ▶ Moral or social wrong – can ’ t bring liability under tort law

42. Legal Damage ▶ The b r ea c h of le g a l duty i s t o b e consti t u t ed ▶ “ Injuria sine damno ” – injury with infringement of right (irrespective of the quantum of damage) ▶ “ Damnum sine injuria ” – injury/damage without infringement of right (might have caused substantial damage)

43. UBI JUS IBI REMEDIUM ▶ There is no wrong without a remedy ▶ ‘ Jus ’ here signifies the ‘legal authority to do or to demand something’ and ‘ remedium ’ may be defined to be “the right of action , or the means given by law, for the recovery or assertion of a right”.

44. General Principles of Liability in Tort Torts are basically civil wrongs which lead to civil damages. These are rights which people generally have against the whole world. In order to enforce these rights, the law recognizes certain principles of tort liability. Since the law of tort is not codified, we need to rely on precedents and jurisprudence to understand these principles. ▶ Principles of Tort Liability ▶ Although most principles of tort law originate from English common law, Indian courts have modified them to meet local requirements. The following are some important tort law principles:

45. Contd. ▶ 1 ) Damnum Sine Injuria ▶ Damnum sine injuria is a Latin legal maxim which basically means damage without injury. It means an actual loss which occurs without the infringement of any legal rights. ▶ This is because the mere loss of money or money’s worth does not amount to any tort. In order to constitute some tort, real violation of some rights must take place in the form of legal damage. ▶ No liability can arise in such cases. For example, let’s say a person has been owning a stationery shop on a street for several years. If his business rival opens a bigger stationery shop nearby, this person cannot sue him for his diminishing profits. This is because no legal injury occurs to him. ▶ This maxim means damage without any injury, no injury has been caused to the plaintiff but he suffered damage. The plaintiff’s legal rights are not violated. If legal rights are not violated but injury has been caused to the plaintiff then in such situation plaintiff can bring an action against the defendant and generally they are not actionable unless there is a legal right present.

46. Damnum sine injuria ▶ Gloucester Grammar School Case(1410) ▶ The defendant, a school master, set up a rival school to that of the plaintiffs, which created competition ▶ The p l a inti f f ha d t o r edu c e t h e f e e s f or hi s s c ho l a r s ▶ “ as if I have a mill and my neighbour builds another mill whereby the profit of my mill is diminished, I shall have no action against him, although I am damaged… ” (Hankford J,) ▶ H e ld t ha t p l a inti f f ha d n o r em e dy f or t h e l o ss t hu s suf f e r e d b y t hem.

47. Damnum sine injuria Action v Blundell (1843) ▶ The defendants by digging a coal-pit intercepted the water which affected the plaintiff ’ s well – which was at the distance of about a mile. ▶ N o t h e ld l i ab l e . ▶ “ the person who owns the surface, may dig therein and apply all that is found to his own purposes, at his free will and pleasure, and that if in the exercise of such rights, he intercepts or drains off the water collected from underground springs in the neighbor's well, this inconvenience to his neighbour falls within description damnum sine injuria which cannot become the ground of action”.

48. Damnum sine injuria Ushaben v Bhagyalaxmi Chitra Mindir, [AIR 1978 Guj. 13] ▶ Injunction was sought against exhibition of ‘ jai santoshi maa ’ a feature film ▶ Petitioners contended that the film hurts their religious sentiments ▶ But the relief was denied – stating that hurt to ‘ religious sentiment ’ is not recognized as legal right

49. Contd. ▶ 2) Injuria Sine Damno ▶ In contrast with damnum sine injuria , the principle of injuria sine damno means an infringement of rights without actual losses. Since this leads to infringement of rights, liability can arise even if no person suffers actual or substantial losses. ▶ For example, trespassing of property is a serious violation of a person’s right to protect his property. In such cases, the trespasser is liable to pay compensation even if he causes no real damage. ▶ It means damage without any injury. This is a legal maxim which means no damage has been caused to the plaintiff but he has suffered injury. The plaintiff need not prove the damages but he has to prove that some legal injury has been caused to him by the act of the defendant. The injury suffered by the plaintiff is not a physical injury but the legal rights of the plaintiff are violated and compensation is awarded to the plaintiff for the loss caused to him.

50. Injuria sine damno ▶ Normally applicable to torts which are actionable per se ▶ Ashby v White, ▶ The plaintiff was qualified voter at a parliamentary election. Defendant was returning officer who wrongfully restrained plaintiff from franchise ▶ No l o ss w as c au s e d – but h e ld, t ha t p l a inti f f c an r e c o v er ▶ “ E v e r y inju r y imp o rt s a dama g e , t hou g h it do e s n o t c o s t t h e p a r t y one f a r t hin g ” – Holt C.J.,

51. Contd ▶ Bhim Singh v State of J & K, [AIR 1986 SC 494] ▶ the plaintiff, MLA in J&K was wrongfully detained by the police – which ultimately prevented him from attending the Assembly session ▶ By the time Supreme Court was moved – he was released – but as a consequent relief, a damages amounting to Rs.50,000 was awarded to him ▶ in such cases loss suffered by the plaintiff is not relevant for the purpose of a cause of action – it may be relevant only as regards the measure of damages ▶ “ the mere fact that a man is injured by another ’ s act gives in itself no cause of action; if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is exercising a legal right ”

52. Contd.. ▶ 3) Principle of Vicarious Liability ▶ The general rule of tort liability is that the person who causes damage must pay compensation. In certain cases, however, liability can arise on third parties also. The law refers to this vicarious liability. ▶ For example, the law of partnership recognizes that partners are agents of each other. Therefore, one partner can be liable for the defaults of another. ▶ Vicarious liability can also arise in the course of employment due to the master-servant relationship between employers and employees. ▶ In order for vicarious liability to arise, there should be some legal relationship between the defendant and the third party. In other words, the law must be able to attribute and extend liability to the third party.

53. Contd Injuria sine damnum( Injury without damages) ▶ Ashby v White 1703( voter case) ▶ Bhim Singh v State of J& K 1986 (unlawful detention) ▶ Marzilli v William Bank (1830) Banker refusing the customer – refusing to honour his cheque- violation of right Damnum sine injuria (means an actual or substantial loss without infringement of any legal right. In such case no action lies.) ▶ Gloucester Grammar School(1410) Monetary loss in school fee bcoz of the new school opposite to the plaintiff’s school ▶ Ushaben v Bhagyalaxmi Chitra Mandir AIR 1978 ( religious sentiments in movie ‘Jai Santoshi Maa’) ▶ Action v Blundell 1848 ( dig hole in his own land (20 yrs old at a distance of 1 mile- no liable( coal pit intercepted the water which affected the plaintiff’s well) ▶ Chesmore v Richard 1859 (pliff- mill owner for past 6 years using water for his mill from a stream . The defendants sunk a well on his land and pumped large quantities of water which could have gone to plaintiff’s land. ▶

54. Contd- Damnum Sine Injuria ▶ Seetharamayya v Mahalkshmamma AIR 1958- Four defendants tried to ward off the flow of water into their plot from the stream by digging a trench as well as putting up a bunds on their lands which was also followed by the fifth defendant which in fact caused damage to the plaintiff’s land causing damage . Andhra Pradesh HC held that defendants were not liable as the owner of land on or near a river has a right to build a fence upon his own ground to prevent damage. ▶ Action v Blundell (1843) A mine owner drained off underground water running into plaintiff well and no action law. These are moral wrong not civil wrong. ▶ Mogul Steamship Co. v McGregor Gow & Co 1892 a number of steamship companies combined together and drove the plainff company out of the tea carrying reduced freight. House of lords held that the plaintiff had no caution of action as the defendants had by lawful means acted to protect and extend their trade and increase their profits. ▶ Dickson v Reuter’s Telegram Co (1877)- Defendant – a telegraph company, negligently delivered a telegram, meant for somebody else to the plaintiffs. For a goods order to be shipped of barley from Valparaiso to England. The plaintiff believed it to be true and delivered which in fact returned back so the plaintiff sued the telegram company. Court held that defendant company owed a contractual duty, only to sender of the telegram since they did not owe any duty to the recipient of the telegram, they were not liable.

55. Contd- Damnum Sine Injuria ▶ Chasemore v Richards 1859 Interception of percolating water land owner and mill owner 6 yrs ▶ Gloucester Grammar School Case (1410) Setting up rival school- Wilson v Waddell (1876 ) Damage caused by lawful working of mine ( subsidence on surface & due to rainfall collected in plaintiff’s land) ▶ Mogul Steamship Co. v Mc Gregor Gow Co. 1892 Driving rival trader out of market- ABCD against F ▶ Earl Cowley v Countess Cowlet 1901 (Use of title by spouse after dissolution of marriage) ▶ Day v Brownring 1878 - Using of name of another man’s house- Pliff “Ashford Lodge”- 6 years & Def- 40 yrs- Ashford Villa later he changed similar to Plaintiff house name- Not held liable ▶ Butt v Imperial Gas Co. 1866 - Obstruction to view of shop- gasometer obstruction the view of the house premise. ▶ Dickson v Reuter’s Telegraph Company 1877- Misdelivery of telegram ▶ Electrochrome Ltd v Welsh Plastics Ltd (1968 )- Water supply cut-off ▶ Indian Case- Rogers v Rajendra Dutt (1860) Refusal of Employment- ▶ Dhadpale v Gaurav (1881)- Ceasing to offer to idol ▶ Anand Singh v Ramachandra (AIR 1963)- Damage to wall by water ▶ Vishnu Dutt Sharma v Board of High School & Intermediate Examination (AIR 1981) Loss of academic year due to shortage of attendance

56. Ubi jus ibi remedium ▶ It is a Latin maxim which means that where there is a wrong, there is a remedy. If any wrong is committed then the law provides a remedy for that. ▶ The maxim can be phrased as that any person will not suffer a wrong without a remedy, it means that once it is proved that the right was breached then equity will provide a suitable remedy. ▶ This principle also underlines the fact that no wrong should be allowed to go without any compensation if it can be redressed by a court of law. The law presumes that there is no right without a remedy; and if all remedies are gone to enforce a right, the right in point of law ceases to exist . ▶ Justice Pollock said that right and wrong are contrary to each other. Right actions are those which are prescribed by moral rules, wrong actions are those which are not prescribed by moral rules or which are prohibited by law. In case of legal action, anything which is wrong is not recognized by laws. It is presumed that whenever a wrong is committed it means that legal duties have been omitted. ▶ Hence the existence of duty involves a right then it also provides the possibility of wrong. Duty, right and wrong are not separate but they are the different legal aspects of the same rules and events . Sometimes it happens that there may be both duties and wrong, and the wrong does not happen only when duty is truly justified. If there exists a duty to do something and if it is properly done then it is said that the duty is discharged and the man who was legally bound is now freed.

57. Development of Ubi jus ibi remedium ▶ The law of tort is said to be the development of the maxim Ubi jus ibi remedium . The word “ jus ” means legal authority to do something or to demand something. The word “ remedium ” means that the person has the right of action in the court of law. The literal meaning of the maxim is where there is a wrong there is a remedy. ▶ The circuit court of appeals of the United States of America in the case of Leo feist v. young observed that “it is an elementary maxim of the equity of jurisprudence and there is no wrong without a remedy”. ▶ This maxim also says that there is no remedy without any wrong and the persons whose right is being violated has a right to stand before the court of law. ▶ This principle also states that if the rights are available to a person then it is required to be maintained by that person only and remedy is available only when he is injured in the exercise of duty or enjoyment of it; It is useless to imagine and think a right without a remedy. It is necessary to keep in mind that both rights violated and the remedy sought or to be obtained should be legal. There are many moral and political wrong but are not actionable or it does not give many sufficient reasons to take legal action as they are not recognized by law. The maxim does not mean that there is a legal remedy for each and every wrong committed. ▶ For example, a contract which was required to be made on stamped paper may be made orally; in such circumstances, irrecoverable harm may be caused to other person and yet no legal remedy is available. ▶ Thus, the maxim does not mean that there is a remedy for every possible wrong. It is appropriately said by Justice Stephen that maxim would be correctly stated if maxim were to be reversed to say that “where there is no legal remedy, there is no legal wrong.

58. Contd ▶ Where there is a right, there is a remedy ▶ Law of equity highlights the facts that if there is a breach of right then the right which is breached is incomplete without availability of proper remedy. The common laws were restricted to a limited number of remedies until the concept of law of equity was developed. In case of breach of rights, there are only a few writs which can be filed and if in any case the suit is not covered under the writs then the suit will be dismissed. There are so many rights available but no remedy is available in case of its breach. To remove this deficiency the concept of a court of chancery came into existence and have the jurisdiction to decide matters relating to equity and justice. ▶ Essentials of Ubi jus ibi remedium ▶ The maxim ubi jus ibi remedium can be applied only where the right exists and that right should be recognized by the court of law; ▶ A wrongful act must have been done which violates the legal rights of a person clearly. ▶ This maxim can be used only when sufficient relief has not been provided by the Court to the person who sustained the injury. ▶ This maxim is applicable if any legal injury had been caused to any person, if no legal injury has been caused then the maxim damnum sine injuria will be used which means damage without any legal injury.

59. Limitations of ubi jus ibi remedium ▶ The maxim ubi jus ibi remedium does not apply to moral and political wrong which are not actionable. ▶ This maxim is not applied to those cases in which proper remedy is given in case of breach of right under common law. ▶ If there is no legal damage which has been caused to any person then this maxim will not be applicable. ▶ Ex: No remedies are available in case of breach of marriage vows or personal commitment as these all are the promises made without consideration and are based on trust. ▶ This maxim is also not applicable in case of public nuisance unless and until a plaintiff shows that he suffered more injury than other members or peoples of the society. ▶ This maxim is not applicable where the plaintiff is negligent or there is negligence on the part of the plaintiff.

60. Case laws on ubi jus ibi remedium ▶ Sardar Amarjit Singh Kalra v. Promod Gupta & Ors. , the court held that the principle of ubi jus ibi remedium is recognized as a basic principle of the theory or philosophy of law. The Supreme Court also held that it is the duty of the courts to protect and maintain the right of parties and help them instead of denying them relief. ▶ In Ashby vs White , the plaintiff was a qualified voter and he was detained from giving a vote in a parliamentary election by the defendant who was a police officer. The party to whom he wanted to vote had won the election and the plaintiff filed a suit against the defendant stating that he was detained from giving a vote and his right to vote was infringed and also claimed a certain amount of compensation for the damage caused to him. The defendant in his defence said that the party to whom he wanted to vote had won the election and therefore no damage and injury was caused to him. ▶ The court held that no damage or injury was caused as the candidate for whom the plaintiff wanted to vote had won the election but his right to vote was violated. To restrain a person from giving vote is a civil wrong and therefore the plaintiff had the right to seek remedy from the court of law. The maxim ubi jus ibi remedium was applied in this case and the plaintiff was awarded the compensation.

61. Contd ▶ In D.K. Basu v. State of West Bengal , (1997 1 SCC 416 ) ▶ Mr. D.K. Basu who was working as the executive chairman in legal aid services, West Bengal, a non-political organization registered on 26-08-1986 under the Societies Registration Act. He wrote a letter addressing the Chief justice of India telling him about certain news that was published in newspapers namely the Indian Express and The Telegraph regarding the death of a person in police lockups and custody. ▶ After hearing this case Supreme Court issued some guidelines which need to be followed during the arrest of an accused person. The Court further said that a mere declaration of violence in police custody or judicial custody is a legal wrong and does not provide any remedy to the victim or family of victim on the death of the victim. Only giving punishment to the victim is not sufficient. To file a civil suit for compensation is a long process and compensation should be provided to the person who sustained injury. The quantum of compensation should be decided considering the circumstances of the case.

62. Contd ▶ In Bhim Singh v. State of Jammu & Kashmir ,(1986) the petitioner was MLA of Jammu and Kashmir parliamentary assembly. While he was on his way to attend the parliamentary session he was wrongfully arrested by a police officer and he was restrained from attending the parliamentary session. He was not presented before the magistrate in time and he had a legal right to attend the meeting. His fundamental right under Article 21 of the Constitution was also violated. At last Supreme Court held that the defendants were responsible and awarded Rs.50,000 as compensation to the petitioner for the infringement of his fundamental right.

63. Contd. ▶ 4) V ol e nti No n- Fi t Inj u ria ▶ Sometimes it may so happen that a person may suffer damages when he consents to some act. This consent may be in the form of knowledge of the possibility of damage and free will to undergo it. A person who understands the risks he may incur while doing something and still does it cannot seek compensation. ▶ For example, imagine that a spectator suffered injuries after a cricket ball hit him on his head. The spectator cannot claim compensation from the batsman or any organizer in this case. This is because the law presumes that he was aware of these risks and still went to watch the match.

64. 5) Strict Liability and Absolute Liability ▶ These two principles levy liabilities on industrial and business ventures when their commercial activities cause damages to the public. They basically state that liability in some cases should arise even in the absence of intention or negligence. ▶ Strict liability ▶ The rule of a strict liability says that if a business’s commercial activities harm somebody, it should compensate him . This liability will arise even if it took all necessary precautions to prevent the damage. ▶ For example, in Rylands v. Fletcher, water from a person’s mill entered and damaged his neighbour’s mines. The court levied liability on the defendant even though it was his contractor who was at fault and not him.

65. ▶ The Rule of Strict Liability ▶ Some activities may be so dangerous that the law has to regulate them with extreme consequences. For example, the law may sometimes levy a penalty even if damage occurs without somebody’s fault. This is exactly what happens under the rule of strict liability. This rule is very important for commercial and other activities that have the potential to result in horrific damages. ▶ Rule of Strict Liability ▶ The strict liability principle is an extremely important concept under the law of torts. The basis of this principle basically lies in the inherent harm that some activities can inflict. For example, leaking of poisonous gasses, as it happened in the Bhopal Gas Tragedy, will attract this rule. ▶ The underlying principle of compensation in torts generally depends on the extent of precautions a person takes. Hence, if he takes abundant precautions to prevent some harm, the law may exempt him from paying damages. This principle, however, does not apply to strict liability. ▶ Under the strict liability rule, the law makes people pay compensation for damages even if they are not at fault. In other words, people have to pay compensation to victims even if they took all the necessary precautions. In fact, permissions allowing such activities often include this principle as a pre-condition.

66. Rylands v. Fletcher ▶ The rule of strict liability originates from the famous English case of Rylands v. Fletcher. According to the facts of this case, the defendant owned a mill and wanted to improve its water supply. For this purpose, he employed a firm of reputed engineers to construct a reservoir nearby. ▶ The problem occurred when the reservoir was so full one day that the water from it started over-flowing. The water flowed with so much force that it entered the plaintiff’s mine and damaged everything. ▶ The engineers, who were independent contractors of the defendant, were clearly at fault. This is because they were negligent in constructing the reservoir. This is exactly what the defendant also said for avoiding his liability. ▶ The court, however, disagreed and explained the strict liability rule. It said that when somebody keeps something on his property for his benefit, it should not escape and affect others. In case it so escapes, the owner of that thing must compensate the victim even if he was not negligent.

67. Exceptions to Strict Liabili ty ▶ The strict liability rule does not apply in cases involving the following exceptions: ▶ 1) Act of God ▶ An act of God is a sudden, direct and irresistible act of nature that nobody can reasonably prepare for. It can cause damage regardless of how many precautions one may take. For example, tsunamis, tornadoes, earthquakes, extraordinary rainfall, etc. are acts of God. Any damage that occurs due to these acts does not attract strict liability. ▶ 2) Wrongful act of a third party ▶ Sometimes, the involvement of third parties may be the cause of damages. For example, renovation work in one flat may cause some nuisance to another flat. Here, the tenant affected by the nuisance cannot sue his landlord. He can only sue the person renovating the other flat. ▶

68. 3) Plaintiff’s own fault ▶ In several instances, the plaintiff may himself be at fault for the damage he suffers. In such cases, he cannot shift liability on some other person regardless of how much he suffers. ▶ Rule of Absolute Liability ▶ The Supreme Court applied a stricter version of the rule of strict liability in the case of MC Mehta v. Union of India (1987). In this case, harmful Oleum gas had escaped from a factory owned by Shriram Foods & Fertilizer Industries. The gas had caused a lot of damage to people and industries nearby. ▶ The Supreme Court held that, despite being so stringent, the strict liability rule was inadequate in modern times. This is because scientific advancements have made modern industries even more dangerous and hazardous. Hence, the court laid down the absolute liability rule in this case. ▶ According to the absolute liability rule, no exceptions of strict liability shall apply in certain cases. Therefore, the people who cause damage will have unlimited liability to compensate victims adequately. Courts in India have applied this rule in many cases to create deterrence.

69. Absolute liability ▶ Absolute liability ▶ If the law imposes strict liability on a person, it also allows him to take certain defences. For example, a defendant may say that the damage occurred due to natural calamities beyond his control. ▶ In absolute liability, however, he cannot take any defence whatsoever and has to pay compensation in all cases. This happens in cases of damages arising from hazardous activities, like the Bhopal Gas Disaster.

70. Contd ▶ Fundamental duty in a contract is to perform the promise, like a tort duty comes into being by mere force of the law. ▶ Exemplary damages are awarded not to compensate the plaintiff but to punish the defendant to deter him from similar conduct in future. ▶ Donoghue v Stevenson (1932) AC 562 - “Privity of Contract fallacy” ▶ Ginger beer case- snail in the ginger beer- Service provider will be held liable. ▶ Caparo Industries Plc V Dickman (1990) 1 All ER 568 observed that An employer who owes the duty to exercise that standard of skill and care appropriately shall owe a duty and is liable under Contract and Tort for all losses which his client may suffer by reason of any breach of duty.

71. Contd ▶ In Maretti v. William , 1982 the defendant was the owner of the bank, and the plaintiff’s fund was deposited in the defendant’s bank. The plaintiff had sufficient balance in his account in spite of that the defendant refused to honour cheque to him. The court held that the defendant is liable for the loss caused to the plaintiff. The maxim ubi jus ibi remedium was applied as the plaintiff’s legal right was violated and defendants were liable to pay damages. ▶ Shivkumar Chadha v. Municipal Corporation of Delhi , 1993 SCR (3) 522 the Supreme court held that where statutory enactments does not provide any remedy but only creates rights and liabilities, if any person complains of his rights being violated or wrongly affected such person can approach the civil court on the basis of the principle of legislation that where there is a right, there is a remedy.

72. Contd.. ▶ In the case of C.Veera Thevar vs The Secretary To Government , 24 September, 2010 Madras High Court the court held that there is no wrong without a remedy. The laws say that in every case where a person is wronged and caused injury then should be provided. Mere declaration of invalidity or death in lockup does not provide any remedy to a person whose fundamental right is violated. ▶ Equity courts are the court of justice. The person whose rights are violated has a right to stand before the court of law. This maxim does not say that there is a remedy for every wrong. There are many political and moral rights which are recognized by law and the law does not provide a remedy for that. The basic idea behind ubi jus ibi remedium is that no wrong will be unredressed if it can be remedied by the court. The maxim is generally true as no right exists without a remedy. The maxim is accepted by the law of torts and provides a remedy in each and every case as this doctrine of common law in England provides a remedy for each and every wrong.

73. How to prove negligence To prove an action of negligence each of the following elements of the legal action must be established: Duty That the defendant owed the claimant a duty of care. Breach That the defendant breached that duty of care (that is, did not reach the required standard of care). Causation That the damage suffered by the claimant was caused by the defendant’s breach of duty. Damage That the type of damage suffered is not too remote from the defendant’s conduct. If the claimant can prove that each of these elements exist, their action in negligence will succeed unless the defendant is able to establish one of the defences to the tort of negligence.

74. LIMITATIONS ▶ The maxim is not intended to mean as it is sometimes supposed to, that there is a legal remedy for every moral or political wrong. ▶ There is no legal remedy for the breach of a solemn promise not under seal & without consideration; nor for many kinds of verbal slander, though each may involve utter ruin, nor for oppressive legislation, though it may reduce men practically to slavery; nor for the worse damage to person & property inflicted by most unjust & cruel way. ▶ Moreover, in its application to the law of torts, this excludes the wrong for which statutory penalty is provided, e.g., law of crimes. ▶ The fundamental principle is that if, law confers a right upon a person, it must provide a remedy for its infringement but in practice, the plaintiff is required to bring his case under anyone of the recognized heads of torts. ▶ It has been observed in many cases that if there is no remedy, this is evidence that no right exists.