SRI MANAKULA VINAGAYAGAR ENGINEERING COLLEGE

(AN ATUNOMUS INSTITUTION)

CENTRE OF LEGAL EDUCATION

LAW OF TORTS

LECTUTRE NOTES
 UNIT- 1

INTRODUCTION

Introduction

The term ‘Tort’ is a French word and has been derived from the Latin
term ‘Tortum’, which means a wrong or injury. Generally, tort is a civil
wrong, and means something which is twisted or crooked.

In law, a tort is defined as a civil wrong or wrongful act of one, either

intentional or accidental, that results in the injury or harm to another person,
who in turn has recourse to civil remedies for damages or a court order or
injunction.

A tort basically arises when a person’s duty towards is affected. And a person
who commits the tort is known as a ‘tortfeasor’. But when it us jointly
performed by multiple individuals; they are called ‘Joint Tortfessors’. Section
2(m) of the Limitation Act, 1963, states that it is not just exclusively a breach
of contract or breach of trust.

Definition of Tort by different Scholars

Salmond defines it as ‘a civil wrong for which the remedy is a common

law action for unliquidated damages, and which is not exclusively the breach
of a contract or the breach of a trust or other merely equitable obligation.’

Fraser describes it as “an infringement of a right in rem of a private

individual, giving a right of compensation at the suit of the injured party.”

Winfield opined that “Tortious liability arises from the breach of duty,
primarily fixed by law, this duty is towards persons generally and its breach
is redressable by an action for unliquidated damages”.

What constitute a tort?

Wrongful Act: It means there must be some kind of act or omission of duty
on the part of the defendant or wrongdoer. He must have done something
that he was not expected to do or he omitted something which he was
expected to do. And that act or omission must have affected the legal right
(i.e. Right of reputation or Right of bodily safety and freedom, etc.) of
another person.
Legal Damage: It means that the act or omission must be required by the
law and the duty to perform them must be imposed by the law. If there is a
mere social or moral wrong, then there would be no liability for tort. In other
words, there should be a legal injury or invasion of the legal right. In the
absence of an infringement of a legal right, a tort dose not arises. Also,
where there is only an infringement of a legal right, and no legal damage,
still the action of tort arises. As in the case of Ashby vs. White, where the
Plaintiff was stopped from casting his vote by the defendant, a returning
offers. However, the cancellation did not affect the election but it affected
the legal right of the plaintiff causing legal injury to him, so he would be
entitled to sue the defendant for the tort committed.

Legal Remedy: The third condition of liability for a tort is legal remedy.
This means that to constitute a tort, the wrongful act must come under the
law. The main remedy for a tort is an action for unliquidated damages,
although some other remedies, e.g., injunction, may be obtained in addition
to damages or specific restitution may be claimed in an action for the
detention of a chattel. Unliquidated damages are those which are not fixed
or previously defined, which relies on the discretion of the court.

Is it Law of Tort or Law of Torts?

There are two theories in this question. One is given by Winfield and
the other is given by Salmond.

According to Winfield, it is Law of Tort, he states that all the injuries done to
another person are torts, unless there is some justification by the law (all
unjustifiable harms are torts). His theory was supported by many eminent
scholars with the principle of Ubi Jus Ibi Remedium (where there is wrong,
there is a remedy), providing that torts are not confined or limited but are
various.

According to Salomon, it is Law of Torts, he states that there is no general

principle of liability and it only arises when the wrong is covered by any of
the specified tort. Also known as Pigeon hole theory. His supporters argued
that according to Salmond, the courts can create new torts but they cannot
create them unless they are similar to those already in existence.

It can be seen that both the theories are not in complete contradiction with
each other but are the faces of same coin. The slightest difference is that
Winfield’s theory was wider and Salmond’s theory was narrower and
restricted. It is just only about the matter of approach.
Evolution of torts

The essential nature of the law of torts is that it is not codified like statute
laws. The law of torts in India is based on English Common law, which is the
product of judicial decisions. In Rajkot Municipal Corpn. v Manjulben
Jayantilal Nakum (1997) 9 SCC 552, the court observed: “In the absence of
statutory law in regard to Tortious liability in India, the common law
principles evolved in England may be applied in India to the extent of
suitability and applicability to the Indian conditions.”

There is very little legislation in the area of tort in India, and, elsewhere in
the world. The reason is simple- tortuous liability can arise in a number of
ways and the number is so large that it is almost impossible to specify each
and every act on the part of the defendant who may be made liable for
damages.

In recent times, some parts of the law of torts have been codified, viz. The
Workmen’s Compensation Act, The Employer’s Liability Act, etc. Also, laws
relating to defamation, libel, etc. have been framed. Unlike England, there is
very little tort litigation in India, the reasons being: lack of consciousness
about one’s rights and the spirit of toleration, problem of recognition of the
action by courts, and, awarding of very low damages. Thus, numerous cases
of injury in India like unlawful detention, injury to or the death of people due
to adulterated foodstuffs, liquor, medicine, etc., loss due to power cut, noise
and other pollutions, etc. are put up without bringing an action in a court of
law.

The Origin of law of Torts could be traced from the following three
maxims:

Alterium non-laedere (not to hurt anyone by words or deeds)

Honesty Vivere (to live honourably)

Suum clique tribuere (to provide justice to each person)

The law of torts has its origin in England but is followed in the US, British
Commonwealth nations and India. Previously, in the US, the law used to deal
with the minor cases, like that of accidents. But now seeing the diversity
cases in India, the jurists and lawyers decided to further develop the law of
torts.
The English Law of Torts has a lot of dominance over the Indian law of tort,
which was modified as per the requirement of the Indian society. The ancient
Hindu Law consisted of a Sanskrit word, ‘Jimha’ which meant equivalent to
the tortious conduct.

In the earlier times the Britishers found it difficult to administer Indians, so

they decided to an Indian Tort Law, to avoid chaotic situation.

Tort is basically a common law subject as it is not based on any statute or

act passed by the parliament, but is based on the precedents, the centuries
of judicial decisions. Like in India, both contract and criminal law are based
on the statutes like Indian Contract Act, 1872 and IPC, 1860, respectively.
But there are no specific statutes that deal with the tort law. So, a tort lawyer
would have to look for rules as developed by courts in similar cases.

However, with the development, India has developed certain tort laws, like
Motor Vehicles Act, 1988 to deal with automobile accidents and also
Consumer Protection Act, 1986 to protect the interests of the consumers.
Still most of the tort law is uncodified and is based on the Common law of
England. At times when the common law is silent, the courts apply principles
of Equity, Justice and Good Conscience.

Also, in the landmark case of M.C. Mehta Vs. UOI, Justice P.N. Bhagwati
observed the importance of having one’s own law and how it helps for
further development and growth of the nation, rather than relying on the
ancient law of England.

Nature and Characteristics of Torts or Scope of law of Torts

The nature and characteristics of torts are:

Civil Wrong

A tort is a civil wrong, as opposed to a criminal offence. It involves a violation

of a legal duty owed by one person to another, resulting in harm, injury or
damage.

Breach of Duty

A tort occurs when there is a breach of duty. The person committing the tort
fails to fulfil their legal obligation or duty towards another person, whether it
is a duty to exercise reasonable care, respect someone’s property rights or
refrain from committing intentional harm.
Harm or Injury

A tort results in harm, injury or damage to the person, property, reputation

or economic interests of another individual. This harm can be physical,
emotional or financial in nature.

Causation

A tort requires a causal link between the wrongful act or omission and the
harm suffered. The breach of duty must be the direct cause of the harm or
injury suffered by the victim.

Legal Remedy

Torts provide a basis for seeking legal remedies. The injured party, known as
the plaintiff, can file a lawsuit seeking compensation for the damages
suffered, including monetary compensation, injunctions and declaratory
relief.

Compensation

One of tort law’s key objectives is to compensate the victim for the harm
suffered. The compensation aims to restore the injured party to the position
they would have been in had the tortious act not occurred. The
compensation awarded is determined based on the nature and extent of the
harm suffered.

Fault-Based Liability

In most tort cases, liability is based on fault. The person committing the tort
must have acted negligently, intentionally or recklessly. However, certain
torts, such as strict liability, do not require proof of fault and hold the
defendant liable regardless of their intent or level of care.

Individual Rights

Torts protect individual rights and interests. They provide a legal mechanism
for individuals to seek redress and hold others accountable for the harm
caused. Torts encompass a wide range of rights, including personal integrity,
property rights, privacy rights and economic interests.

Civil Proceedings

Tort claims are typically resolved through civil proceedings in a court of law.
The burden of proof lies with the plaintiff, who must establish that the
defendant’s actions or omissions caused the harm suffered. The defendant is
given an opportunity to present a defence against the allegations.

Preponderance of Evidence

In tort cases, the standard of proof is generally based on a preponderance of

the evidence. This means that the plaintiff must prove that it is more likely
than not that the defendant’s actions caused the harm suffered. It is a lower
standard of proof compared to the “beyond a reasonable doubt” standard
used in criminal cases.

Tort and Crime

Historically, torts were closely connected to criminal law and even today,
certain aspects of damage laws include punitive elements. However, it’s
important to recognize that torts are a specific type of civil wrong or injury.
Civil and criminal wrongs are distinguished based on the available legal
remedies.

Civil wrongs lead to civil litigation, whereas criminal procedures aim to

punish defendants for accused acts. Civil proceedings focus on enforcing
rights asserted by the plaintiff against the defendant, while criminal
proceedings seek to punish the accused for their actions. Occasionally, the
same mistake may be the subject of both procedures.

Contracts and Torts

P.H. Winfield‘s definition helps clarify the distinction between contracts and
torts. According to Winfield, tort liability arises when a legal obligation owed
to all people is violated and the violation can be addressed through legal
action seeking unliquidated damages.

On the other hand, a contract is an agreement between parties that

establishes a specific legal obligation. The contract’s nature, substance and
implications are determined by the agreement reached between the parties.
Salmond views contract as a result of individuals exercising the independent
legislative power granted by the law to define their respective rights and
duties.

Quasi-Contract and Tort

Instances, where a person is held responsible to another party without a

formal agreement for money or rightful benefits, fall into the category of a
quasi-contract. From an orthodox perspective, the presence of a hypothetical
contract, suggested by the law, serves as the basis for the duty under a
quasi-contract.

However, the radical viewpoint argues that the responsibility in a quasi-

contract is distinct and rooted in the prevention of unfair enrichment.

What are the Essential Elements of Tort?

As has already been stated, there are four essential elements of tort for a
tort to exist. They are:

Existence of a Duty to Exercise Care

The law of torts imposes an obligation on every individual to exercise a

reasonable level of care when engaging in activities that could potentially
cause harm to others. To pursue a legal case, it is necessary to establish that
the tortfeasor (the person responsible for the tort) owed a duty of care to the
injured party and that this duty was breached. The duty of care is imposed
by law and does not require a direct relationship between the tortfeasor and
the injured party.

Wrongful Commission or Omission of an Act

For an act to be recognized as wrongful, it must be defined as such by law.

Violating a legal provision renders an act unlawful. It is important to note
that a moral wrong does not necessarily equate to a legal wrong. Merely
being morally wrong is insufficient to qualify as legal wrongdoing. An act is
considered unlawful only if it contravenes the law, regardless of its moral
implications. Furthermore, wrongdoing must result in actual harm or legal
injury to another person. The following cases exemplify this requirement:

Glasgow Corporation v. Taylor (1992)

In this case, a corporation failed to erect proper fencing to keep children

away from a poisonous tree. As a result, a child plucked and consumed fruits
from the poisonous tree and died. The corporation could be held liable for
this omission.

General Cleaning Corporation Ltd v. Christmas (1953)

In this case, an employer failed to provide a safety belt for a safe system of
work, resulting in consequences arising from this omission.

Actual Harm or Legal Harm

For a tort claim to arise and for the tortfeasor to be held liable, the claimant
must have suffered actual pain or loss as a result of the wrongdoing, or there
must have been a violation of their legal rights, with or without resulting
damage.

Two maxims, injuria sine damno and damnum sine injuria, encompass the
various categories of harm and/or injury covered by this crucial element of a
tort.

Injuria Sine Damno

The maxim “injuria sine damno” describes an injury without damage, which
is actionable under tort law. It occurs when a person experiences a legal
injury without actual loss, meaning their legal right has been infringed by
another individual. It signifies a violation of an absolute right without the
need for actual harm.

An illustrative example of this maxim is the landmark case of Ashby v. White

(1703) 92 ER 126, where Mr. Ashby, the plaintiff, was prevented from voting
by Mr. White, the constable. This rule is based on the ancient maxim “Ubi jus
ibiremedium,” meaning “where there is a right, there will be a remedy.”

The plaintiff was a qualified voter in a parliamentary election. The defendant,

a returning officer, wrongfully refused to accept the plaintiff’s vote. Although
the plaintiff suffered no damage since the candidate he wished to vote for
had already won the election, the defendants were still held liable. It was
concluded that damage is not limited to pecuniary loss, as injury implies
damage. Therefore, when a person’s rights are hindered, they are entitled to
remedies.

In another case from India, Bhim Singh v. State of Jammu and Kashmir, the
plaintiff, who was a member of parliament (MP), was denied entry into the
premises of the Assembly election by a police constable, thereby infringing
upon his legal rights.

Damnum Sine Injuria

This maxim is the opposite of the previous one. It refers to damage without
injury. In this case, the party experiences actual physical or moral loss, but
there is no infringement of their legal rights. It refers to an actual and
substantial loss suffered by a party without any violation of their legal rights.
In such instances, the plaintiff has no cause of action since no legal rights
have been transgressed.
An example of damnum sine injuria is the case of Gloucester Grammar
School, where the defendant established a school in the same
neighbourhood as the plaintiff’s school and even lowered the fees. This was
not considered a tort case because the plaintiff suffered only a financial loss,
and none of their legal rights were breached.

Legal Remedy

The law of torts provides specific legal remedies to injured parties when their
rights are violated. These remedies can include monetary compensation,
restitution of specific property, and court-ordered injunctions.

The Court assesses various factors of liability by applying tests such as

directness and foreseeability to determine the extent of the damage suffered
and whether it is too remote. Only after evaluating these factors will the
Court provide relief to the claimant.

Torts is a private law remedy or Remedies in Torts

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.

Judicial Remedies

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:
Damages

Injunction

Specific Restitution of Property

Extra-judicial Remedies
On the other hand, if the injured party takes the law in their own hand (albeit lawfully), the
remedies are called extra-judicial remedies. These are of five main types:

Expulsion of trespasser

Re-entry on land

Re-caption of goods

Abatement

Distress Damage Feasant

Now, let us discuss both judicial and extrajudicial remedies in some detail.

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’.

Types of damages

Depending upon the ‘objective’ of the compensation, that is, whether the plaintiff is to be
compensated or the defendant has to be ‘punished’, there are 4 types of damages:

Contemptuous– contemptuous damages are also called ignominious damages. The amount of
money awarded by the court in this case is very low, as to show the court’s disapproval that is,
when the plaintiff himself is at some fault and cannot wholly be said to be ‘aggrieved’.

Nominal– Nominal damages are awarded when plaintiff’s legal right is infringed, but no real
loss has been caused to him. For example, in cases of trespass, when damage has not been
caused, a legal right is still infringed. Here, the objective is not to compensate the plaintiff.

Substantial-Substantial damages are said to be awarded when the plaintiff is compensated for
the exact loss suffered by him due to the tort.

Exemplary/Punitive– These are the highest in amount. Punitive damages are awarded when the
defendant has excessively been ignorant of the plaintiff’s rights and great damage has been
caused to the defendant. The objective here is to create a public example and make people
cautious of not repeating something similar.

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.

Damages for nervous or mental shock:

Nervous shock

When, due to a negligent act or any other tortious act, a plaintiff’s nerves are damaged due to
shock and trauma, irrespective of whether a physical harm has also been caused with it, he/she is
entitled to be compensated for it. The question before the court of law is whether the nervous
shock is actually a resulting consequence of the defendant’s act.

Mental shock

Mental shock, on the other hand is the shock to a person’s intellectual or moral sense. Mental
shock, too, can be compensated for in a suit for damages. Earlier, it was thought that mental
shock cannot really be compensated for, because it cannot be measured, but recently the courts
have recognized that the damage in case of mental shock is just as real as a physical injury.

Cases:

McLoughlin v O’Brian

The plaintiff’s husband and three children met with an accident with the defendant, due to the
defendant’s negligence. After seeing her husband and children grievously injured, and hearing
the news of one of her children’s death, the plaintiff suffered nervous and mental shock and went
into a state of clinical depression. The House of Lords in this case ruled in favour of the plaintiff,
McLoughlin, whereby she recovered damages for her nervous shock too.

Gujarat State Road Transport Corporation, Ahmedabad v. JashbhaiRambhai

The plaintiffs in this case were relatives (mother and children) of a middle-aged couple who met
with an accident when another moving bus drove over them as soon as they deboarded their own.
The court delivered a judgement in favour of the plaintiffs, and they received compensation
under the heading of ‘Pain, Shock and Sufferings’.

Measurement of Damages
There is no arithmetic formula to decide the quantum of damages. Therefore, a number of
factors, including the facts and circumstances of each case are to be considered to ascertain the
damages. Damages are therefore awarded at the discretion of the court.

Remoteness of ‘Damage’

As discussed above, the main aim is to bring the aggrieved party back to the status quo, that is,
compensating the plaintiff. As a general rule, damage suffered by the plaintiff should be a direct
consequence of the defendant’s act. Any action can have multiple following consequences. A
person cannot be held accountable for all the consequences resulting from his act. The
remoteness of consequences resulting from a person’s act has been an issue of debate in the Law
of Torts over the years. Various tests were developed over time to determine what consequences
of an act a person can be held liable for. When there is no cause and effect relationship between
the defendant’s act and the injury caused to the plaintiff, the damage is said to be too remote to
be compensated.

Re Polemis Case (Re Polemis& Furness, Withy & Co Ltd)

In this case, Polemis, the plaintiff owned a cargo ship that they had chartered to the defendants.
While unloading cargo from the ship, the defendant’s employees accidentally knocked a plank
into the ship, which caused a spark to ignite, that resulted in an explosion. The question before
the court was, whether the damage due to the explosion was a direct result of the act of the
defendant’s employee.

Leisboch Case (Liesbosch Dredger v SS Edison)

In this case, the plaintiff’s dredger was damaged and sunk by the defendants (Edison), due to
their negligence. The dredger was working under a contract with the terms that some amount had
to be paid if the work was not completed on time. The plaintiff did not have enough funds to
arrange a new dredger to complete the said work. They claimed all the resulting damages. The
court held that the plaintiff’s own lack of funds cannot be compensated by the defendants.

Wagon Mound Case (Overseas Tankship Ltd. v. Morts Docks & Engineering Co.)

In this case, the defendants owned a ship (The Wagon Mound No. 1). The plaintiffs were the
owners of a dock named Morts Dock. Due to the defendant’s negligence a spark was ignited that
set some floating cotton waste nearby on fire, due to which the plaintiff’s wharfs and their ship,
the Wagon Mound was damaged.

Purpose of Damages in Torts

The main object behind remedying by damages is to bring the plaintiff back into the position that
he/she was in before the injury due to the tort occurred, or in other words, to bring him back to
the position he would have been in, if the tort did not ever occur.
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.

An injunction is an order of a court that restrains a person from continuing the commission of a
wrongful act, or orders the person to commit a positive act to reverse the results of the wrongful
act committed by him, that is, to make good what he has wrongly done. To receive injunction
against a party one must prove damage or the possibility of prospective damage (apprehended
damage). An injunction can be temporary or permanent, and mandatory or prohibitory. Let us
discuss each of them one by one. Law relating to injunctions is found in the Code of Civil
Procedure, 1908 and from Section 37 to Section 42 of the Specific Relief Act (henceforth
referred to as the Act), 1963.

A suit of injunction can be filed against any individual, group or even the State.

According to the Section 37 of the Act there are two types of injunctions–temporary and
perpetual (permanent).

Temporary Injunction

A temporary or interlocutory injunction is granted during the pendency of a case, to maintain the
status quo and avoid further damage until the court passes a decree. It prevents the defendant
from continuing or repeating the breach that he had been doing. A temporary injunction is
granted to prevent the party from suffering through the damages during the court proceedings.
They may be granted at any stage during the pendency of the case. Either of the parties can seek
an injunction to be granted. The power to grant a temporary injunction is derived from Rule 1
and 2 of Order XXXIX (39) of the Code of Civil Procedure. Certain principles are kept in mind
while granting a temporary injunction:

There has to be a prima facie case.

A balance of convenience has to be maintained. (That is, which party is more at loss, etc.)

There has to be an irretrievable damage. (The damage has to be such that cannot be compensated
for, in money)

Cases in which temporary injunction is granted

A temporary injunction may be granted in any of the following cases:

An injunction can be granted in favour of a party and against the government if the government
is barring the party from doing a lawful act or freely exercising his rights.

Under Section 80 of the CPC, an injunction can be granted against an act done by a
government/public officer working in his official capacity.

When the property in dispute is in danger of being damaged or wasted by either of the parties.

In cases of tenancy. A plaintiff being unjustly removed as a tenant, that is, not through the due
legal process, can seek an injunction against his/her landlords.

In case of a continuing nuisance, where the defendant is asked to discontinue his act of nuisance
so as to prevent further damage to the plaintiff while the case is being decided.

In cases of trademark, copyright infringement, etc.

Permanent Injunction

A perpetual or permanent injunction is granted after the court has heard the case from both sides
and passes a decree. Here, since it is a court decree, it is final and perpetually applicable. That is,
the defendant cannot continue his wrongful act, or has to do a positive act for perpetuity.

Cases in which permanent injunction is granted

To avoid multiplicity of judicial proceedings.

When damages do not adequately compensate the plaintiff.

When the actual damage cannot be ascertained.

Mandatory Injunction

When the court has asked the party to do something, it is a mandatory injunction. That is, when
the court compels a party to perform a certain act so as to bring back the aggrieved party or the
plaintiff to the position that he/she was in before the commission of the act of the defendant. For
example, the court may ask a party to make available some documents, or to deliver goods, etc.

Prohibitory Injunction

When the court has asked the party to not do something, it is a prohibitory injunction. The court
prohibits a person, or refrains them from doing something that is wrongful. For instance, it may
ask the party to remove an object of nuisance or to stop his act of nuisance.

When can injunctions not be granted?

According to Section 41 of the Specific Relief Act, an injunction cannot be granted:

To stop a person from filing a case in the same court in which the injunction suit is sought,
unless such an injunction is being asked for, to prevent a multiplicity of proceedings.

To restrain or stop a person from filing or fighting a case in a court that is not subordinate to the
one in which injunction is being sought.

To prevent a person from applying to any legislative body

To restrain a person from filing or fighting a criminal case

To prevent the breach of contract, performance of which is not enforced specifically

To prevent an act that is not a clear act of nuisance

To prevent a continuing breach in which the plaintiff has himself acquiesced

When an equally effective relief can be obtained in any other way or through any other sort of
proceeding

When the conduct of the plaintiff (or his agents) has been so wrongful as to disentitle him from
the assistance of the court.

When the plaintiff has no personal interest in the said matter.

Limitation period

According to Article 58 of the Limitation Act, 1963, the period of limitation for filing an
injunction suit is three years from when the ‘right to sue first accrues’, that is, when the right to
cause of action commences, not the cause of action itself. It is an important question of law as to
when the cause of action actually arises. In the case of Annamalai Chettiar vs A.M.K.C.T.
MuthukaruppanChettiar, it was held that the right to sue accrues “when the defendant has clearly
or unequivocally threatened to infringe the right asserted by the plaintiff in the suit”.

Case:

M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Stationery Products

In this case, the plaintiff filed a suit for perpetual injunction against M/s. India Stationery
Products for infringement of their trademark on their product ‘Nataraj’, in respect of pencils,
pens, sharpeners, erasers, etc., claiming that the trademark was adopted by them in 1961, and
that the defendants had wrongly got themselves registered a copyright similar to them. The court
ruled in favors of the plaintiff granting the defendant an interim injunction.

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 neighbors. 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.

Foundation of tortious liability

Jurists are not having same opinion as to what constitutes the foundation of tortious liability.
Winfield has given two competing theories:

(i) All injuries done to another person are torts, unless there is some justification recognised by
law.

(ii) There are a definite number of torts outside which liability in tort does not arise.

The first theory has got support from Sir Fredrick Pollock as well as from eminent judges.
Winfield says that - if I injure my neighbour he can sue me in tort whether the wrong happens to
have a particular name viz. assault, battery, deceit, slander or even in absence of such names and
I shall be liable if I fail to prove lawful justification. On this view, the law of tort/torts consist not
merely of all those torts which have acquired specified names but also includes the wider
principle that all unjustifiable harms are tortious. In the case, Chapman v. Picker S. Gill, (1762) 2
Wills 145 (146), Pratt, C.J. held that 'Torts are infinitely various, not limited or confined. Bowen,
L.J. in the case Skinner & Co. v. Skew & Co., (1893) 1 Ch 413 (422), observed that "at common
law there was a cause of action whenever one person did damage to another wilfully and
intentionally without just cause or excuse."

The second theory is also known as pigeon-hole theory. According to this theory the law of torts
consists of a net-set of pigeon-holes, each containing a specific tort. For example, assault,
battery, deceit, slander or any other tort. If the wrong committed by defendant does not fit in any
of these pigeon-holes, then he has committed no tort. Sir John Salmond, an ardent supporter of
this theory says, "Just as the criminal law consists of a body of rules establishing specific
offences, so the law of torts consists of a body of rules establishing specified injuries. Neither in
the one case nor in the other is there any general principle of liability. Whether I am prosecuted
for an alleged offence or sued for an alleged tort, it is for my adversary to prove that the case
falls within some specific and established rule of liability, and not for me to defend myself by
proving that it is within some specific and established rule of justification or excuse."

The first theory has got reinforcement by the court by repeatedly extending the domain of the
law of tort by creating new torts i.e. torts to which specified names have been given. For
example, tort of malicious prosecution, deceit, absolute or strict liability etc. So, it is evident
from such instances that the law of tort is steadily expanding and that the idea of its being
cribbed, cabined and confined in a set of pigeon-holes is not tenable. The first theory has got
support from Lord Mansfield in Gardiner v. Creasdale, (1760) 2 Burr 905, in the year 1760 and
in 1762, Pratt C.J. in the case Chapman v. Pickers, gave his favour to this theory. It also got
positive remark by Bowen, L.J. and Holmes J., in the cases Skinner & Co. v. Skew & Co. and
Aikens v. Wisconsin, 191 (195) US 194, respectively. There is still some controversy regarding
second theory and different authors have varied views. Dr. Jenks finds that new torts can be
created and this is perfectly consistent with this theory because new torts cannot come into being
unless the courts regard them as substantially similar to torts which they have already
recognised.

The basic principle of ascertaining the liability of the wrongdoer is based upon two major
theories:

Pigeon Hole Theory- According to this theory, several unidentified offences and wrongful
conduct would not come under the purview of liability in tort law.

Wider and Narrower Theory- According to this theory, the wrongs committed by the party
which is not in the interests or injure the other party would come under the purview of tort law
without the requirement of a legal justification.

Difference between Torts and Crime AND Difference between Torts and Contract

Difference between Tort and Crime

TORT CRIME

A tort is a type of civil wrong which gives rise to

A crime gives rise to criminal proceedings.
civil proceedings.

.The goal of criminal law is to keep society in

The goal of tort law is to defend a person’s rights.
order and to prevent crime.

Law of tort is uncodified law. Law of crime is codified law.

In crime, there is a violation of public rights and

An individual’s private rights are violated in tort.
obligations, which has an impact on society.

In tort, the injured person is known as the plaintiff, In a crime, the victim is the one who submits a
and he or she files a lawsuit against the wrongdoer. police report.

In the case of criminality, the state acts through

In torts, the plaintiff takes action by filing a lawsuit.
police as spokespeople.

In tort, the wrongdoer is responsible for In the case of a crime, the criminal faces
compensation. punishment.
 In tort, intention generally is not relevant. In crime, intention is always relevant.

In crime the amount of fine imposed as

Tort amount of compensation is given to the plaintiff.
punishment is given to the state.

Differences between a Tort and a Contract

TORT CONTRACT

A tort is a civil wrong which is associated with an act or A contract is an agreement between parties to fulfil
omission or conduct which causes harm to another certain mutual obligations

It is a breach of legal duty imposed by the law Legal duty is imposed upon the parties by the
provisions of contract

In tort, there is no intention of the victim and wrongdoer to Intention to create a legal relationship is an
create any legal relationship essential of a contract

Law of torts is uncodified Law of contracts and provisions relating to breach

of contracts are codified.

A tort is a violation of a right in rem i.e., a right vested in A breach of contract is a violation of a right in
some particular individual and available against the public personam i.e., a right available against some
at large. particular person or party.

The remedy for torts is compensation in the form of The remedy for breach of contracts is in the form of
unliquidated damages, i.e., damages not pre-determined liquidated damages, i.e., damages already pre-
and assessed by the Courts depending on the degree of determined by the parties in the contract
harm caused to the aggrieved party

Actual harm has to be caused for claiming compensation Compensation can be claimed in the case of breach
of contract, even if no actual damage has occurred

In a tort, duties imposed are not towards any specific In a contract, the duty is based on the privity of
individual but they are towards the world at large contract and each party owes a duty only towards
the other contracting party

General principles of 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:
1) Damnum Sine Injuria

Damnum sine injuria is a Latin legal maxim that 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, a real violation of some rights must take place in the form of legal damage.No liability
can arise in such cases. When there is the actual damage caused to the plaintiff without an
infringement of his legal right, no action lies against the defendant. In order to make someone
liable in tort, the plaintiff must prove that he has sustained legal injury. Damage without injury is
not actionable in the law of torts.

Example: A sets up a rival school opposite B’s school with a low fee structure as a result of
which students from B’s school flocked to A’s school thereby causing a huge financial loss to A.
This act of A is not actionable in the law of torts since it did not lead to the violation of any legal
right of the plaintiff although he has sustained financial loss.

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. It implies an infringement of the legal rights of a
person without any actual loss. Loss in this sense could mean loss of health, monetary loss, etc.
Since there is an infringement of the legal right of a person, the right to sue for a remedy is
available against the wrongdoer regardless of the fact whether any actual loss is sustained or not.

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.

In the leading case of Ashby v White the defendant, a returning officer at a voting booth refused
to allow the plaintiff, a duly qualified voter from voting. The candidate for whom the plaintiff
was voting got elected and therefore no loss was suffered by him. The court held that although
the plaintiff did not sustain any actual loss, but his legal right to vote was violated for which he
was granted a remedy.

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. 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.
Vicarious liability can also arise in the course of employment due to the master-servant
relationship between employers and employees It is a general rule that a person is responsible for
his own act of omission and commission but in certain cases, a person is liable for the actions of
others. This is known as 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.

The essential elements of vicarious liability are as follows:

There must be a relationship of a certain kind.

The wrongful act must be related to the relationship in a certain way.

The wrongful act must be done within the course of employment.

In the case of Wilson v. Tumman, (1843) 6 M&G 236 (242), as – “an act is done, for another, by
a person not assuming to act for himself, but for some other person; though without any
precedent authority whatever, becomes the act of the principal if subsequently ratified by him, is
the known and well-established rule of law”.

4) Volenti Non-Fit Injuria

Latin for “to a willing person, no injury is done”. This doctrine holds that a person who
knowingly and willingly puts himself in a dangerous situation cannot sue for any resulting
injuries.

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 defense is that no one
can enforce a right that he has voluntarily abandoned or waived. Consent to suffer harm can be
expressed or implied.

In Hall v. Brooklands Auto Racing Club [1933] 1 KB 205, the plaintiff was a spectator of a car
racing event, and the track on which the race was going on belonged to the defendant. During the
race, two cars collided, and one was thrown among the people who were watching the race. The
plaintiff was injured. The court held that the plaintiff knowingly undertook the risk of watching
the race. It is a type of injury which could be foreseen by anyone watching the event. The
defendant was not liable in this case.

In Wooldridge v. Sumner [1963] 2 QB 43, a plaintiff was taking some pictures standing at the
boundary of the arena. The defendant’s horse galloped at the plaintiff due to which he got
frightened and fell into the horse’s course and was seriously injured. The defendants were not
liable in this case since they had taken due care and precautions.
In the case of Thomas v. Quartermaine (1887) 18 QBD 685, the plaintiff was an employee in the
defendant’s brewery. He was trying to remove a lid from a boiling tank of water. The lid was
struck so the plaintiff had to apply an extra pull for removing that lid. The force generated
through the extra pull threw him into another container which contained scalding liquid and he
suffered some serious injuries due to the incident. The defendant was not liable as the danger
was visible to him and the plaintiff voluntarily did something which caused him injuries.

In Illot v. Wilkes, a trespasser got injured due to spring guns present on the defendant’s land of
which the plaintiff had knowledge. He knowingly undertook the risk and then suffered injuries
for the same. This was not actionable and the defendant was not liable in the case.

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 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.

In Rylands v. Fletcher, water from a person’s mill entered and damaged his neighbor’s mines.
The court levied liability on the defendant even though it was his contractor who was at fault and
not him.

Absolute liability

If the law imposes strict liability on a person, it also allows him to take certain defenses.

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 defense whatsoever and has to pay
compensation in all cases. This happens in cases of damages arising from hazardous activities,
like the Bhopal Gas Disaster.

General Defences under Law of Tort.

Whenever a case is brought against the defendant for the commission of a tort and all the
essential elements of that wrong are present, the defendant would be held liable for the same.
Even in such cases, the defendant can avoid his liability by taking the plea of the defenses
available under the law of torts.
Some defences are particularly relating to some offences. In the case of defamation, the defences
available are fair comment, privileges and justification, etc.

Let’s see what are these defences available to a person under the law of tort and how can it be
pleaded along with some of the important cases.

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.

Some examples of the defence are:

When you yourself call somebody to your house you cannot sue your guests for trespass;

If you have agreed to a surgical operation then you cannot sue the surgeon for it; and

If you agree to the publication of something you were aware of, then you cannot sue him for
defamation.
A player in the games is deemed to be ready to suffer any harm in the course of the game.

A spectator in the game of cricket will not be allowed to claim compensation for any damages
suffered.

For the defence to be available the act should not go beyond the limit of what has been
consented.

In Hallv. Brooklands Auto Racing Club, the plaintiff was a spectator of a car racing event and the
track on which the race was going on belonged to the defendant. During the race, two cars
collided and out of which one was thrown among the people who were watching the race. The
plaintiff was injured. The court held that the plaintiff knowingly undertook the risk of watching
the race. It is a type of injury which could be foreseen by anyone watching the event. The
defendant was not liable in this case.

In Padmavati v. Dugganaika, the driver of the jeep took the jeep to fill petrol in it. Two strangers
took a lift in the jeep. The jeep got toppled due to some problem in the right wheel. The two
strangers who took lift were thrown out of the jeep and they suffered some injuries leading to the
death of one person.

The conclusions which came out of this case are:

The master of the driver could not be made liable as it was a case of a sheer accident and the
strangers had voluntarily got into the vehicle.

The principle of Volenti non fit injuria was not applicable here.

In Wooldrige v. Sumner, a plaintiff was taking some pictures standing at the boundary of the
arena. The defendant’s horse galloped at the plaintiff due to which he got frightened and fell into
the horse’s course and was seriously injured. The defendants were not liable in this case since
they had taken due care and precautions.

In the case of Thomas v. Quartermaine, the plaintiff was an employee in the defendant’s
brewery. He was trying to remove a lid from a boiling tank of water. The lid was struck so the
plaintiff had to apply an extra pull for removing that lid. The force generated through the extra
pull threw him in another container which contained scalding liquid and he suffered some serious
injuries due to the incident. The defendant was not liable as the danger was visible to him and the
plaintiff voluntarily did something which caused him injuries.

In Illot v. Wilkes, a trespasser got injured due to spring guns present on the defendant’s land. He
knowingly undertook the risk and then suffered injuries for the same. This was not actionable
and the defendant was not liable in the case.

Similarly, if you have a fierce dog at your home or you have broken pieces of glass at the
boundaries, all this is not actionable and is not covered under this defence.
The consent must be free

For this defence to be available it is important to show that the consent of the plaintiff was freely
given.

If the consent was obtained under any compulsion or by fraud, then it is not a good defence.

The consent must be given for an act done by the defendant.

For example, if you invite someone to your house for dinner and he enters your bedroom without
permission then he will be liable for trespass.

In the case of Lakshmi Rajan v. Malar Hospital, a 40 year old married woman noticed a lump in
her breast but this pain does not affect her uterus. After the operation, she saw that her uterus has
been removed without any justification. The hospital authorities were liable for this act. The
patient’s consent was taken for the operation not for removing the uterus.

If a person is not in a condition to give consent then his/her guardian’s consent is sufficient.

Consent obtained by fraud

Consent obtained by fraud is not real consent and does not serve as a good defence.

In Hegarty v. Shine, it was held that mere concealment of facts is not considered to be a fraud so
as to vitiate consent. Here, the plaintiff’s paramour had infected her with some venereal disease
and she brought an action for assault against him. The action failed on the grounds that mere
disclosure of facts does not amount to fraud based on the principle ex turpi causa non
orituractio i.e. no action arises from an immoral cause.

In some of the criminal cases, mere submission does not imply consent if the same has been
taken by fraud which induced mistake in the victim’s mind so as to the real nature of the act.

If the mistake induced by fraud does not make any false impression regarding the real nature of
the act then it cannot be considered as an element vitiating consent.

In R. v. Wiliams, a music teacher was held guilty of raping a 16 years old girl under the pretence
that the same was done to improve her throat and enhancing her voice. Here, the girl
misunderstood the very nature of the act done with her and she consented to the act considering
it a surgical operation to improve her voice.

In R. v. Clarence, the husband was not liable for an offence when intercourse with her wife
infected her with a venereal disease. The husband, in this case, failed to inform her wife about
the same. Here, the wife was fully aware of the nature of that particular act and it is just the
consequences she was unaware of.

Consent obtained under compulsion

There is no consent when someone consents to an act without free will or under some
compulsion.

It is also applicable in the cases where the person giving consent does not have full freedom to
decide.

This situation generally arises in a master-servant relationship where the servant is compelled to
do everything that his master asks him to do.

Thus, there is no applicability of this maxim volenti non fit injuria, when a servant is compelled
to do some work without his own will.

But, if he himself does something without any compulsion then he can be met with this defence
of consent.

Mere knowledge does not imply assent

For the applicability of this maxim, the following essentials need to be present:

The plaintiff knew about the presence of risk.

He had knowledge about the same and knowingly agreed to suffer harm.

In the case of Bowater v. Rowley Regis Corporation, a cart-driver was asked to drive a horse
which to the knowledge of both was liable to bolt. The driver was not ready to take that horse out
but he did it just because his master asked to do so. The horse, then bolted and the plaintiff
suffered injuries. Here, the plaintiff was entitled to recover.

In Smith v. Baker, the plaintiff was an employer to work on a drill for the purpose of cutting
rocks. Some stones were being conveyed from one side to another using crane surpassing his
head. He was busy at work and suddenly a stone fell on his head causing injuries. The defendants
were negligent as they did not inform him. The court held that mere knowledge of risk does not
mean that he has consented to risk, so, the defendants were liable for this. The maxim volenti
non fit injuria did not apply.

But, if a workman ignores the instructions of his employer thereby suffering injury, in such cases
this maxim applies.

In Dann v. Hamilton, a lady even after knowing that the driver was drunk chose to travel in the
car instead of any other vehicle. Due to the negligent driving of the driver, an accident happened
which resulted in the death of the driver and injuries to the passenger herself. The lady passenger
brought an action for the injuries against the representatives of the driver who pleaded the
defence of volenti non fit injuria but the claim was rejected and the lady passenger was entitled
to get compensation. This maxim was not considered in this case because the driver’s
intoxication level was not that high to make it obvious that taking a lift could be considered as
consenting to an obvious danger.

This decision was criticized on various grounds as the court did not consider contributory
negligence while deciding the case but the court’s reason for not doing so is that it was not
pleaded that is why it was not considered.

A driver’s past negligent activities do not deprive him of this remedy if someone travels with the
same driver again.

Negligence of the defendant

In order to avail this defence it is necessary that the defendant should not be negligent. If the
plaintiff consents to some risk then it is presumed that the defendant will not be liable.

For example, when someone consents to a surgical operation and the same becomes unsuccessful
then the plaintiff has no right to file a suit but if the same becomes unsuccessful due to the
surgeon’s negligence then in such cases he will be entitled to claim compensation.

In Slater v. Clay Cross Co. Ltd. the plaintiff suffered injuries due to the negligent behaviour of
the defendant’s servant while she was walking along a tunnel which was owned by the
defendants. The company knew that the tunnel is used by the public and had instructed its drivers
to give horns and drive slowly whenever they enter a tunnel. But the driver failed to do so. It was
held that the defendants are liable for the accident.

Limitations on the doctrine’s scope

The scope of the maxim volenti non fit injuria has been curtailed in the following cases:

Rescue cases

The Unfair Contract Terms Act, 1977

In these cases, even if the plaintiff has done something voluntarily but he cannot be met with the
defence of ‘consent’ i.e. volenti non fit injuria.

Rescue cases

When the plaintiff voluntarily comes to rescue someone from a danger created by the defendant
then in such cases the defence of volenti non fit injuria will not be available to the defendant.

In Haynes v. Harwood, the defendants’ servant left two unattended horses in a public street. A
boy threw a stone on the horses due to which they bolted and created danger for a woman and
other people on the road. So, a constable came forward to protect them and suffered injuries
while doing so. This being a rescue case so the defence of volenti non fit injuria was not
available and the defendants were held liable.
However, if a person voluntarily attempts to stop a horse which creates no danger then he will
not get any remedy.

In the case of Wagner v. International Railway, a railway passenger was thrown out of a moving
train due to the negligence of the defendants. One of his friends got down, after the train stopped,
to look for his friend but then he missed the footing as there was complete darkness and fell
down from a bridge and suffered from some severe injuries. The railway company was liable as
it was a rescue case.

In Baker v. T.E. Hopkins & Son, due to the employer’s negligence, a well of a petrol pump was
filled with poisonous fumes. Dr. Baker was called to help but he was restricted from entering the
well as it was risky. He still went inside to save two workmen who were already stuck in the
well. The doctor himself was overcome by the fumes and then he was taken to the hospital where
he was declared dead. When a suit was filed against the defendants, they pleaded the defence of
consent. The court held that in this case the defence cannot be pleaded and the defendants, thus,
were held liable.

If A creates danger for B and he knows that a person C is likely to come to rescue B. then, A will
be liable to both B and C. Each one of them can bring an action for the same, independently.

If someone knowingly creates danger for himself and he knows that he will likely be rescued by
someone, then he is liable to the rescuer.

In Hyett v. Great Western Railway Co. the plaintiff got injured while saving the defendant’s cars
from a fire which occurred due to negligence on the part of the defendants. The plaintiff’s acts
seemed to be reasonable and the defendant was held liable in this case.

Unfair Contract Terms Act, 1977 (England)

The Unfair Contract Terms Act, 1977, limits the right of a person to exclude his liability
resulting from his negligence in a contract.

Negligence Liability

Sub-section 1 puts an absolute ban on a person’s right to exclude his liability for death or
personal injury resulting from the negligence by making a contract or giving a notice.

Sub-section 2 is for the cases in which the damage caused to the plaintiff is other than personal
injury or death. In such cases, the liability can only be avoided if a contract term or notice
satisfies the reasonability criteria.

Sub-section 3 says that a mere notice or agreement may be enough for proving that the defendant
was not liable but in addition to that some proofs regarding the genuineness of the voluntary
assumption and plaintiff’s consent should also be given.
Volenti non fit injuria and Contributory negligence

Volenti non fit injuria is a complete defence but the defence of contributory negligence came
after the passing of the Law Reform (Contributory Negligence) Act, 1945. In contributory
negligence, the defendant’s liability is based on the proportion of fault in the matter.

In the defence of contributory negligence, both are liable – the defendant and the plaintiff, which
is not the case with volenti non fit injuria.

In volenti non fit injuria, the plaintiff knows the nature and extent of danger which he encounters
and in case of contributory negligence on the part of the plaintiff, he did not know about any
danger.

Plaintiff the wrongdoer

There is a maxim “Ex turpi causa non orituractio” 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.

In the case of Bird v. Holbrook, the plaintiff was entitled to recover damages suffered by him due
to the spring-guns set by him in his garden without any notice for the same.

In Pitts v. Hunt, there was a rider who was 18 years of age. He encouraged his friend who was 16
years old to drive fast under drunken conditions. But their motorcycle met with an accident, the
driver died on the spot. The pillion rider suffered serious injuries and filed a suit for claiming
compensation from the relatives of the deceased person. This plea was rejected as he himself was
the wrongdoer in this case.

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.

In Stanley v. Powell, the defendant and the plaintiff went to a pheasant shooting. The defendant
fired at a pheasant but the bullet after getting reflected by an oak tree hit the plaintiff and he
suffered serious injuries. The incident was considered an inevitable accident and the defendant
was not liable in this case.

In Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha, the premises which belonged
to the plaintiff were let out to the defendant. The tenant i.e. the defendant requested the landlord
to repair the electric wirings of the portion which were defective, but the landlord did not take it
seriously and failed to do so. Due to a short circuit, an accidental fire spread in the house. No
negligence was there from the tenant’s side. In an action by the landlord to claim compensation
for the same, it was held that this was the case of an inevitable accident and the tenant is not
liable.

In Shridhar Tiwari v. U.P. State Road Transport Corporation, a bus of U.P.S.R.T.C. reached
near a village where a cyclist suddenly came in front of the bus and it had rained heavily so even
after applying breaks the driver could not stop the bus as a result of this the rear portion of the
bus hit another bus which was coming from the opposite side. It was known that there was no
negligence on the part of both the drivers and they tried their best in avoiding the accident. This
was held to be a case of inevitable accident. The defendant i.e. U.P.S.R.T.C. was held not liable
for this act.

In the case of Holmes v. Mather, the defendant’s horse was being driven by his servant. Due to
the barking of dogs, the horse became unmanageable and started to bolt. In spite of every effort
of the driver, the horse knocked down the plaintiff. This makes it a case of an inevitable accident
and the defendants were held not liable for the incident.

In Brown v. Kendall, the dogs of the plaintiff and the defendant were fighting with each other.
The defendant tried to separate them and while doing so, he accidentally hit the plaintiff in the
eye causing him some serious injuries. The incident was purely an inevitable accident for which
no claim could lie. So, the court held that the defendant is not liable for the injuries suffered by
the plaintiff as it was purely an accident.

In Padmavati v. Dugganaika, the driver of the jeep took the jeep to fill petrol in it. Two strangers
took a lift in the jeep. The jeep got toppled due to some problem in the right wheel. The two
strangers who took lift were thrown out of the jeep and they suffered some injuries leading to the
death of one person.

The conclusions which came out of this case are:

The master of the driver could not be made liable as it was a case of a sheer accident and the
strangers had voluntarily got into the vehicle.

The principle of volenti non fit injuria was not applicable here.

It was a case of a sheer accident which no one could foresee.

In Nitro-Glycerine case,a firm of carriers i.e. the defendants, in this case, was given a wooden
case which was to carry from one place to another. The contents of the box were unknown.
There was some leakage in the box and the defendants took the box to their office so that they
can examine it. After taking out the box, they saw that it was filled with Nitro-Glycerine and
then it suddenly exploded and the office building which belonged to the plaintiffs got damaged.
The defendants were held not liable for the same as the same could not be foreseen.

In the case of Oriental Fire & General Ins. Co. Ltd. v. Raj Rani, the front right spring and other
parts of a truck broke all of a sudden and the driver could not control it and dashed into a tractor
that was coming from the opposite direction. The driver and the owner of that truck could not
prove that they had taken all reasonable precautions while driving the truck. The court held that
this case comes under negligence and has nothing to do with the inevitable accident and the
defendant was liable.

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.

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.

Essentials required for this defence are:

Natural forces’ working should be there.

There must be an extraordinary occurrence and not the one which could be anticipated and
guarded against reasonably.

Working of natural forces

In Ramalinga Nadar v. Narayan Reddiar, the unruly mob robbed all the goods transported in the
defendant’s lorry. It cannot be considered to be an Act of God and the defendant, as a common
carrier, will be compensated for all the loss suffered by him.

In Nichols v. Marsland, the defendant created an artificial lake on his land by collecting water
from natural streams. Once there was an extraordinary rainfall, heaviest in human memory. The
embankments of the lake got destroyed and washed away all the four bridges belonging to the
plaintiff. The court held that the defendants were not liable as the same was due to the Act of
God.

Occurrence must be extraordinary

Some extraordinary occurrence of natural forces is required to plead the defence under the law of
torts.

In Kallu Lal v. Hemchand, the wall of a building collapsed due to normal rainfall of about 2.66
inches. The incident resulted in the death of the respondent’s children. The court held that the
defence of Act of God cannot be pleaded by the appellants in this case as that much rainfall was
normal and something extraordinary is required to plead this defence. The appellant was held
liable.

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.

The force used must be reasonable and to repel an imminent danger.

For example, if A tried to commit a robbery in the house of B and B just draw his sword and
chopped his head, then this act of A would not be justified and the defence of private defence
cannot be pleaded.

For the protection of property also, the law has only allowed taking such measures which are
necessary to prevent the danger.

For example, fixing of broken glass pieces on a wall, keeping a fierce dog, etc. is all justified in
the eyes of law.

In Bird v. Holbrook, the defendant fixed up spring guns in his garden without displaying any
notice regarding the same and the plaintiff who was a trespasser suffered injuries due to its
automatic discharge. The court held that this act of the defendant is not justified and the plaintiff
is entitled to get compensation for the injuries suffered by him.

Similarly, in Ramanuja Mudali v. M. Gangan, a landowner i.e. the defendant had laid a network
of live wires on his land. The plaintiff in order to reach his own land tried to cross his land at 10
p.m. He received a shock and sustained some serious injuries due to the live wire and there was
no notice regarding it. The defendant was held liable in this case and the use of live wires is not
justified in the case.
In Collins v. Renison, the plaintiff went up a ladder for nailing a board on a wall in the
defendant’s garden. The defendant threw him off the ladder and when sued he said that he just
gently pushed him off the ladder and nothing else. It was held that the force used was not
justifiable as the defence.

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.

In Morrison v. Ritchie & Co, the defendant by mistake published a statement that the plaintiff
had given birth to twins in good faith. The reality of the matter was that the plaintiff got married
just two months before. The defendant was held liable for the offence of defamation and the
element of good faith is immaterial in such cases.

In Consolidated Company v. Curtis, an auctioneer auctioned some goods of his customer,

believing that the goods belonged to him. But then the true owner filed a suit against the
auctioneer for the tort of conversion. The court held auctioneer liable and mentioned that the
mistake of fact is not a defence that can be pleaded here.

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.

For example, performing an operation of an unconscious patient just to save his life is justified.
In Leigh v. Gladstone, it was held that the forcible feeding of a person who was hunger-striking
in a prison served as a good defence for the tort of battery.

In Cope v. Sharpe, the defendant entered the plaintiff’s premises to stop the spread of fire in the
adjoining land where the defendant’s master had the shooting rights. Since the defendant’s act
was to prevent greater harm so he was held not liable for trespass.

In the case of Carter v. Thomas, the defendant who entered the plaintiff’s land premises in good
faith to extinguish the fire, at which the fire extinguishing workmen were already working, was
held guilty of the offence of trespass.

In Kirk v. Gregory, A’s sister-in-law hid some jewellery after the death of A from the room
where he was lying dead, thinking that to be a more safe place. The jewellery got stolen from
there and a case was filed against A’s sister-in-law for trespass to the jewellery. She was held
liable for trespass as the step she took was unreasonable.

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.

In Vaughan v. TaffValde Rail Co. sparks from an engine of the respondent’s railway company
were authorized to run the railway, set fire to the appellant’s woods on the adjoining land. It was
held that since they did not do anything which was prohibited by the statute and took due care
and precaution, they were not liable.

In Hammer Smith Rail Co. v. Brand, the value of the property of the plaintiff depreciated due to
the loud noise and vibrations produced from the running trains on the railway line which was
constructed under a statutory provision. The court held that nothing can be claimed for the
damage suffered as it was done as per the statutory provisions and if something is authorized by
any statute or legislature then it serves as a complete defence. The defendant was held not liable
in the case.

In Smith v. London and South Western Railway Co. the servants of a railway company
negligently left the trimmings of hedges near the railway line. The sparks from the engine set fire
to those hedges and due to high winds, it got spread to the plaintiff’s cottage which was not very
far from the line. The court held that the railway authority was negligent in leaving the grass
hedges near the railway line and the plaintiff was entitled to claim compensation for the loss
suffered.
Absolute and conditional authority

The authority given by a statute can be of two types:

Absolute

Conditional

In the case of Absolute authority, there is no liability if the nuisance or some other harm
necessarily results but when the authority is conditional it means that the same is possible
without nuisance or any other harm.

In the case of Metropolitan Asylum District v. Hill, the hospital authorities i.e. the appellants
were granted permission to set up a smallpox hospital. But the hospital was created in a
residential area which was not safe for the residents as the disease can spread to that area.
Considering it a nuisance an injunction was issued against the hospital. The authority, in this
case, was conditional.
 UNIT-II

General Elements of Tort

1. Act or Omission- There should be a wrongful act in order to constitute tort. It can be an act of
omission or that of commission. They should not be beyond human control.

2. Voluntary or Involuntary- The wrongful act can be voluntary or involuntary.

3. Intention, Motive, Negligence and Recklessness- The act may have an intention or motive or
may arise due to negligence or recklessness.

4. Malice– Malice isn’t essential in all kinds of torts. It is essential in the following- defamation,
malicious prosecution, malicious damage to property, slander,etc.

5. Malfeasance, Misfeasance, Nonfeasance- Malfeasance means commission of an unlawful act.

Misfeasance means performing a lawful act in a wrong manner. Nonfeasance means failure to
perform an act where there was an obligation to perform it.

6. Fault- A fault which violates the right of a person gives rise to tort.

Act and omission

For an act to be recognised as wrongful, it must be defined as such by law. Violating a legal
provision renders an act unlawful. It is important to note that a moral wrong does not necessarily
equate to a legal wrong. Merely being morally wrong is insufficient to qualify as legal
wrongdoing. An act is considered unlawful only if it contravenes the law, regardless of its moral
implications. Furthermore, wrongdoing must result in actual harm or legal injury to another
person. The following cases exemplify this requirement:

Glasgow Corporation v. Taylor (1992)

In this case, a corporation failed to erect proper fencing to keep children away from a poisonous
tree. As a result, a child plucked and consumed fruits from the poisonous tree and died. The
corporation could be held liable for this omission.
General Cleaning Corporation Ltd v. Christmas (1953)

In this case, an employer failed to provide a safety belt for a safe system of work, resulting in
consequences arising from this omission.

Relevance of malice, intention and motive

RELEVANCE OF MALICE

Given the ambiguity surrounding the word 'malice', the past's judiciary has tried to define it.
Attempt was made in Brown v Hawkes where court calls malice as:
Some other motive than the desire to bring to justice a person whom he [the accuser] honestly
believes to be guilty.

However, as per Winfield, this definition fails to account that motives may often be various and
mixed. Then the court in Bromage v Prosser did the distinction between malice in law and
malice in fact, as per the court:
"Malice in common acceptation means ill-will or improper motive against a person, but in its
legal sense it means a wrongful act, done intentionally, without reasonable and probable cause."

Thus, malice in law is expressed as implied malice, where the wrongful intention is presumed
concerning the unlawful act. Lord Campbell calls malice in law as 'conscious violation of the law
to the prejudice of another' whereas, malice, in fact, is called express malice.

In this paper, the author will expound upon the distinction of malice. Further, elaboration of
malice as a primary ingredient and secondary ingredient in the imposition of liability, and an end
will take malicious prosecution where malice is the primary factor and defamation where malice
is a secondary factor.

Torts where malice is used:

While deciding personal liability, malice or motive is not considered a relevant factor for most
cases. E.g. In Bradford Corporations V. Pickels, here defendant in the early 1890s began
constructing a series of tunnels and shafts over his land, Which affected water supply to the town
and plaintiffs land. As a result price of the defendants land skyrocketed. Plaintiff claimed that the
actions were done to coerce the plaintiff to purchase the defendants land at a high price. It was
held by the court that "If the act apart from motive gives rises to damage without legal injury, the
motive, however reprehensible, will not supply that element".

Malice as a primary or secondary element

Malice is a crucial ingredient for the imposition of liability in case of malicious prosecution,
abuse of process, misfeasance in a public office and conspiracy. However, it has been argued that
the aforementioned torts are more in terms of abuse of public power than malice. For E.g.
misfeasance applies only to public officers who act in bad faith. This is evident by the court
decision in Gregory v Portsmouth City Council where it held that while deciding malicious
prosecution, it needs to be proved that "the defendant has abused the coercive powers of the
state".

Whereas, in torts like a private nuisance and defamation malice is not a precondition to liability.
Here, malice plays a Contingent and a secondary role, where malice's relevance depends upon
the case's factors. Malice in such cases sheds light on the genuinely fundamental question of
whether the particular defence is available or not.

Malicious prosecution

Apart from showing that reasonable and probable cause was absent, it also needs to be proved
that the prosecution was initiated in a malicious spirit or with an improper motive and not in
furtherance to bring the law into effect. Thus malice, in fact, needs to be established than malice
in law, where the burden of proof falls on the plaintiff.

It also needs to be noted that malice is kept separate and independent of reasonable and probable
cause as there may arise honest belief in the accusation. This view is further propounded by Lord
Esher in Brown v Hawkes, the claimant in the case of malicious prosecution must prove malice
with some independent evidence, for the simple reason that malicious motives may exist at the
same time as a genuine, truthful belief in the guilt of the accused.Also, the plaintiff's mere
acquittal does not prove malice, factors like the spirit of reprisal, recklessness, long-standing
animosity e.t.c need to be proved.

Defamation

Malice is not an essential ingredient in defamation which is evident by Lord Bramwell's remark
that:
A person may be the publisher of a libel without a particle of malice or ill-spite.
Malice becomes an important determinant while determining defence of truth, fair comment and
qualified privilege. Fair comment is considered free of malice, a rule to determine if a statement
is a fair comment or malice has been laid down in Turner v. Metro-Goldwyn-Mayer.

The court held that it doesn't matter what the defendant said, what matters to establish is if a
truthful man would have made the same condemnation. Malice, as a factor becomes important
while claiming qualified privilege. To claim qualified privilege, it needs to be proved that
statement was made on a privileged occasion, and it is free from malice. If a person uses the
occasion for some other motive than for which it was meant, he loses the defence.

The mode of publication can also be a determinant of malice. An unnecessary circulation of the
publication frequently notices this. E.g. in Sadgrove v. Hole.Hole sent a postcard to a third party,
containing scandalous statements about the plaintiff. Though the plaintiff's name was not written,
the defendant was still held liable as a third party acquainted with both plaintiff and defendant.
Lack of faith in the truth of the made can also be taken as evidence of malice. Nevertheless,
arriving at any conclusion in carelessness or following any opinion due to irrational bias cannot
be constituted as malice. E.g. same was held In Broadway Approvals Ltd. v. Odhams Press Ltd.

INTENTGION AND MOTIVE

A Motive signifies the person’s state of mind. It means the ulterior reason for the conduct. It is
different from intention. As a general rule, the motive is not relevant to determine a person’s
liability in the Law of Torts. A wrongful act does not become lawful merely because the motive
is good. Similarly, a lawful act does not become wrongful because of a bad motive.

In the case of Bradford Corporation v. Pickels , It was held that a lawful act does not become
unlawful merely because of an evil motive. In this case, the defendant made certain excavations
on his land as a result of which water was flowing from his land to the adjacent land of the
Corporation. The motive behind this was to coerce the plaintiff to buy the defendant’s land at a
high price. Although the damage was caused maliciously at the same time, the defendant was
making lawful use of his land. Defendants were held not liable in this case by the House of
Lords. Lord Macnaughten said, “In such a case motives are immaterial. 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.”

Also, in the case of Allen v. Flood, it was held that motive was irrelevant in the Law of Torts.

EXCEPTIONS TO THE RULE

In some cases, Motive becomes relevant in determining liability under the Law of Torts.

In the case of, Balak Glass Emporium v. United India Insurance Co. Ltd.,in a multi-storeyed
building, water from above escaped to the lower floor, occupied by the plaintiff. There was
evidence of ill-will between the plaintiff and the defendant. The tap was left fully open and the
outlet of the tank was also closed. The said act was done by the defendant with the wrong
intentions and hence the plaintiff was held liable.

In the torts deceit, conspiracy, malicious prosecution and injurious falsehood, one of the
essentials to be proved by the plaintiff is malice on the part of the defendant.

Malice or evil motive may result in aggravation of damages.

INTENTION
Intention plays a major role in the Law of Torts. Based on Intention, a tort can be divided into
two broad categories:

1. Intentional Tort

An intentional tort is a category of torts that describes a civil wrong resulting from an intentional
act on the part of the tortfeasor (alleged wrongdoer).

Intentional Tort includes:

a) Battery

A Battery consists of touching another person hostilely or against his will, however, slightly.

b) Assault

Section 351 of the Indian Penal Code defines assault as:

“Whoever makes a gesture or any preparation, intending or knowing it to be likely that such
gesture of preparation will cause any person to apprehended that he who makes that gesture or
preparation is about to use criminal force to that person, is said to commit assault.”

c) False Imprisonment

False imprisonment consists of total restraint for some period, however short, upon the liberty of
another without sufficient lawful justification. The restraint may be either physical or by mere
show of authority.

d) Trespass

Trespass is wrongful interference with land which is in the possession of the plaintiff.

2. Unintentional Tort

An unintentional tort is a type of unintended accident that leads to injury, property damage, or
financial loss. In the event of an unintentional tort, the person who caused the accident did so
inadvertently and typically because they were not being careful. The person who caused the
accident is considered negligent because they failed to exercise the same degree of care that a
reasonable person would have in the same situation.

Malfeasance, Misfeasance and Nonfeasance

Malfeasance in Tort Law

Malfeasance is applied when any unlawful act is committed.

It is relevant to those unlawful acts which are actionable per se

no proof is required with.

For example, trespass.

Malfeasance is a broad term covering any act which is illegal and causes physical or financial
harm to another individual. It is an intentional act of doing something wrong, either legally or
morally. The term malfeasance is utilized in both common law and criminal law to narrate any
act which is unlawful or not identified by law. It is not a different crime or tort but the word
malfeasance is used to n7arrate any act that is criminal or any wrongful act which causes injury
to any person. Under tort law, malfeasance has legal effect in civil court and the defendant can
be sued by the plaintiff for monetary damages. It is an act done with an immoral purpose and the
person has the knowledge that the act which is being committed exceeds the authority of the
person doing the act.

For example, a police officer is about to complete his rounds during his shift. His shift is about to
over and he wants to go home. While he is driving home, he sees that a customer and the cashier
at the gas station are having a heated conversation. The officer was on duty at that time and he
knew that his shift would end in thirty minutes and if he stops there, it would take time and he
will not reach home in time.

After that he thinks, if he is on duty and if any serious issue arises when it is his duty to stop
there and try to handle the situation. The officer was aware that if he will not stop the argument
between the cashier and the customer, it might turn into a fight but he simply ignored it and went
home. Later, the cashier was shot to death and the customer took the cash from the counter. This
accident would not have happened if the police officer had stopped at the place where the
incident took place, the serious consequences would have been avoided.

Whether the act of officer was malfeasance or not? So, the act of officer was malfeasance as he
was aware of his proper protocol and the officer was still on duty at that time when he saw the
incident taking place. The officer knew that he was supposed to stop at the scene in order to
prevent any further argument between the cashier and the customer. The officer chose not to
stop, and his choice led to the robbery and death of a cashier.

Another example of malfeasance is a judge taking bribe from the prosecution. The judge had the
knowledge that it is illegal to take money for giving judgment in favour of a person. Since the
judge knows that his action is illegal, but continues to carry on doing the act anyway, it is an act
of malfeasance.

For example, a school janitor is hired by a principal of a school. The janitor was his relative and
had put false employment history in order to get a salary at a rate higher than the normal rate as
he was facing some financial problems. Knowingly committing a dishonest act with the motive
of getting a higher wage is malfeasance.
It is likewise relevant to the improper performance of some lawful act. For example, assume that
a janitor is cleaning a bathroom in a cafe. If he intentionally leaves the floor wet without cleaning
it properly, he or his boss could be obligated for any injuries caused to any customer because of
the floor which was wet. This is because the janitor owed a duty of care to the people using the
bathroom, and he breached that duty by not cleaning the floor properly.

Misfeasance in Tort Law

It means the “Improper performance of some lawful act”. Misfeasance means carrying out legal
and improper action, but it is done in such a way that it harms others or causes injury to other
people. Sometimes an act of a person causes harm to other people unintentionally. While all
these actions are often mistakes committed by a person, there can be legal consequences for such
mistakes. Attached to those mistakes, misfeasance is the legal term used for an act which is not
illegal but performed in such a way that it harms another individual. There are certain situations
in which a person has to perform a duty in the manner prescribed but the person fails to perform
duty in a particular manner then it will be an act of misfeasance. Generally, defendants are held
liable as the defendant has a duty of care towards the plaintiff but did not perform the duty
properly.

In Calveley v. Chief Constable of the Merseyside Police, it was held that for the tort of
misfeasance it was necessary that the public officer must have acted maliciously or in bad faith.
In the case of Dunlop v. Woollahra Municipal Council, it was held that without malice the claim
for misfeasance could not be accepted.

For example, if a doctor performs an operation by using rusted tools or leaves an alien object in
the stomach during the procedure. Generally, a civil defendant will be liable for misfeasance as
the defendant owes a duty of care towards the plaintiff and did not perform his duty properly,
doing an operation is a lawful act but there is an improper performance of the lawful act.

Another example, a janitor is cleaning a restroom in a restaurant and is irresponsible and leaves
the floor wet without any warning sign or board. In such a case, he or his employer could be held
liable for any injury caused because of the wet floor. This is because the janitor owed a duty of
care toward users of the restroom, and he breached that duty by leaving the floor wet and
therefore would be held liable. It will come under misfeasance as the act was lawful but there
was an improper performance of the lawful act.

In the case of Jasbir Kaur vs the state of Punjab, a newborn baby was missing in the hospital and
staff of the hospital was not aware of it. After searching a lot, the newborn child was found dead
in the washroom and his one eye was squeezed out. The hospital was held liable as there was
negligence on the hospital’s part in performing the act properly. It was misfeasance as the
hospital was negligent and there was improper performance of the lawful act.

Difference between Misfeasance and Malfeasance

 Misfeasance Malfeasance

It refers to the improper performance of a

lawful act.

It refers to the commission of an unlawful

demonstration or act.
If any person is authorized to construct a road Trespass is malfeasance and is actionable per se.
and he constructs the road without putting any
sign of warning and if any injury is caused to
another person then it will be considered as an
act of misfeasance.

Nonfeasance in Tort Law

Nonfeasance is the failure or omission to perform an obligatory or compulsory act. If a person

promises another person to perform a particular act and does not perform it, then it is
nonfeasance as the person was responsible for performing the act. Nonfeasance is an act of
intentionally neglecting to carry out a duty which is an obligation and because of the failure to
perform the duty, someone is harmed or injury has been caused. It harms another person or
causes injury to a person’s property. It is the lack of ability associated with the failure of the act.
Unless and until a person has a pre-existing relationship he will not be held liable for the failure
of the act. It describes inaction rather than action. Court believes that if people are not creating a
dangerous situation then also they must take proper care in order to prevent other people from a
dangerous situation. The relationships in which a person is forced to do something or is
compelled to do something are spouses, family members, school authorities and students,
employee and employers, doctor and patients, etc, their duty is to protect each other from danger.

In Municipal Corporation of Delhi vs. Subhagwanti, a clock tower fell down in Chandni Chowk,
Delhi, many people were injured and many died. The clock tower was not repaired for many
years and the municipal corporation was required to maintain it. The Municipal Corporation
failed to do so and the tower collapsed. The municipal corporation was held liable as it was their
duty to repair the clock which they failed to do. It can be called as nonfeasance as there was an
omission in performing the compulsory act.

Difference between Misfeasance and Nonfeasance

Misfeasance Nonfeasance

It means “improper performance of some lawful Nonfeasance, on the other hand, is an omission
act”. Misfeasance means carrying out legal and from discharging duty. But that omission should
 improper action, but it is done in such a way that it
give rise to an action in torts that must be impressed
harms others or causes injury to another person.
with some characteristics, namely, malice or bad
faith.

The term “misfeasance” is utilized in Tort law to

describe any act that is lawful yet which has been
The term non-feasance describes the failure to do
performed inappropriately or in an unlawful
any act that causes harm to another person.
manner.

Difference between Malfeasance, Misfeasance, and Nonfeasance

Malfeasance Misfeasance Nonfeasance

The word “nonfeasance” is derived

The word “malfeasance” is The word “misfeasance” is
from the French word “faisance”
derived from the French word derived from the French word
meaning “action”, and the prefix
“malfaisance”, which means “misfeasance”, meaning “to
non– which means not.
“wrongdoing”. mis-do”.

Failure or omission to perform an

It means the “commission of an It means “improper
act when there is an obligation to
unlawful Act”. Example: performance of some lawful
perform that act. Example: omission
trespass. act”. Example: negligence.
or wrongful act.

Illustration- A Company hires a catering company for providing food and drinks in a retirement
party. If the catering company didn’t come then it is considered as a nonfeasance. If the company
provides only food and did not provide a drink then it is misfeasance. If the catering company
acceptsthe bribes from somebody to provide poisonous food then it is malfeasance.

PERSONAL CAPACITY

Capacity refers to status of a person to sue or to be, sued under violation of a law. These laws can
either be codified or uncodified. In case of Torts, the capacity to sue or to be sued lies with all
persons or parties. But this statement is not absolute; there are always reasonable restrictions
alongside any liberty, similarly there are restrictions upon parties to sue or be sued. Indian law
follows the English law of tort in the matters of disability of parties to sue or to be sued.

A party to tort refers to any person who is directly involved or shows interest in any act that
leads to either:

Commission of a civil wrong

Being victim of such wrong

Such person shall become a party to tort and shall be referred as plaintiffs and defendants. The
article will elaborate upon the restrictions on people to sue any person or to be sued by any
person and how a sued person has the right to seek contribution from other joint tortfeasors.

Parties to Torts

Those persons against whom any action of civil wrong is initiated or instituted may file a civil
suit for recovery against the person who has committed the same. The person who files the suit
shall be called Plaintiff and the one who has the right to defend himself shall be called,
defendants. The term parties to torts includes everyone interested directly in the matter, who
have right to defend, control proceedings, or appeal in court. Anyone who does not have these
rights shall be a privy i.e. stranger to the case.

One of the major elements here is the requirement to initiate a civil suit with the right person. In
case the plaintiff brings in wrong party or the plaintiff includes too many too less number of
parties, the case shall possibly not land in favor of the plaintiff in such situation.

Who does not have capacity to be sued?

The below mentioned are the parties in torts that cannot be sued:

Government

Foreign sovereign

Ambassador

Public official

Minor

Lunatic

Corporation

Trade union

Married women (earlier)

Married women

The common law does not permit a married woman to sue or to be sued all alone. It is necessary
to be in association with her husband only then it shall be valid. This was the rule because earlier
under the law in England, husbands and wives were considered as single entity in the eyes of
law. Thus married women could not be sued all alone. This difficulty was later removed by
Married Women’s Property Act and later a married woman can be sued independently without
joining her husband as a party to the suit.

Minor

The infant/ minor can be sued for the act committed by them as an adult. Thus a minor can be
sued for assault, false imprisonment, libel, slander, fraud etc. but where intention, knowledge or
some other condition of mind are essential ingredients of liability then in that cases minor/ infant
can be exempted due to their mental incapacity. In the latter case a minor/infant cannot be sued.

In Walmsey vs. Humonick (1954 2 D.L.R. 232) – Two little boys were playing cowboy related
games. One boy hit the arrow and it hit another boy in his eye. The court gives the judgment in
defendant’s favor as a five-year child doesn’t even think about it. Hence the defendant is not
liable. [3]

Municipality, centre or state government

They cannot be held liable for misfeasance of their officers if they are exercising their duties.
Therefore the blunders of judicial officers cannot be charged from state’s accounts, even if they
commit a mistake while exercising their powers.

In U.O.I vs. Sugrabai – A, military driver of the school of Artillery, once assigned a task to
transport the machine, hit B, as a result, B died. Here the government is liable as the work is
assigned to him and the act committed during the discharge of the duty.

Lunatic

When any action is committed by a lunatic person mad he is not in his stable state of mind, such
person cannot be sued. However if such person commits a crime when he is in a stable state of
mind and can interpret the meaning or consequences of his actions, then he can be sued.

Alien enemy

Alien enemy means a person belonging to a hostile country or a person residing in or carrying
business in enemy territory. In India an alien enemy cannot be sued by any person in India
without the prior permission of the central government. If the central government allows so, only
then they can be sued by a person.

Corporations

Corporations have distinct legal personality and they can be sued like any other legal person in
India. This can happen when any servant commits an act of civil wrong on behalf of the
corporation. Private corporations can sue and get sued for torts. But A charitable organization is
not liable in tort for injuries done by physicians, employees or servants when it has exercised due
care in their selection, but it is liable for corporate misconduct and negligence.
In Poulton vs. London and S.W. Rly. Company (1867 L.R.2 Q.B. 534)

The railway master was employed by the defendant company, arrested a man for not paying the
freight charges of the horse he is carrying with him. The petitioner filed a case against the
corporation. It was held that the railway master was employed to arrest the person only if the
person does not pay the freight of himself. No order was given to him to arrest a person if he is
not paying the freight charges for the goods carried by him. Here, he is acting in his private
capacity so a corporation cannot be held liable, only the station master can be held liable [7].

Foreign Sovereign

Civil procedure says, a foreign sovereign can only be sued in India if the central government
allows so and not otherwise. Similarly foreign ambassadors and their families cannot be sued in
India unless they waived off their privilege by submitting to the jurisdiction of the court. They
can only be sued in Indian court with the consent of Indian government.

Who does not have capacity to sue?

Every person is competent to be a party to the suit, if he has the right to sue, if his legal right is
infringed. But some people do not have capacity to be the plaintiff; this simply means that they
cannot sue a person. They have legal disability in the eyes of law. These people are:

Convict

Alien enemy

Married woman

Corporation

Unincorporated association

Infant

Insolvent

Convict

Initially a person, a convict whose sentence is in force could not sue anyone for injury to his
property. But later in 1948 the criminal justice act was passed and this difficulty was removed
and a convicted person could sue for injury to his property.

Alien enemy

Alien enemy is a person of enemy nationality or a person from enemy territory of any
nationality. An alien enemy cannot sue in his own right. In India, an alien enemy can sue only
after obtaining permission from the central government under Sec. 83 of the civil procedure
code. But the moment this enmity comes to an end this disability to sue also ends along with it.

Married woman

Initially under English law husband and wife both were constituted as single legal integrated
personality; therefore wife had no right to sue her husband earlier for any wrong committed by
him. Even she could not sue or be sued unless her husband joined her as a party to the suit bit
later came , the married women’s property act 1882 and the law of reform (husband and wife) act
1962 which changed the entire situation. Now a married wife can sue her husband. She can sue a
person without joining her husband as party. In India, today wives and husbands are regarded as
different entities and therefore they can sue each other independently.

Corporation

A corporation is a legal/juridical person. Therefore it can sue another person. It may bring
action for those civil wrongs which affect its property but a corporation cannot sue for those
wrongs which do not affect its property.

In Manchester Vs Williams it was held that a corporation has a right to sue, not only for the
property but also for its personal reputation.

Unincorporated association

An unincorporated association has no legal personality and therefore law gives such associations
no right to sue anybody.

Infant

Minors in India are regarded as incapable to sue anyone henceforth they do not have any right to
sue but at the same time the minor can sue another person by the way of a guardian or friend
(who is of the attained the age of majority). In case there is no such person, the court can appoint
a legal guardian for such child, so that, he can fight for his rights.

In walker Vs Great Northern Railways, In this case, a pregnant woman injured due to a train
accident, as a result of which her child was born deformed. The Court held that the minor cannot
maintain a remedy for the injury sustained when he was in his mother womb. But in a case
having similar facts, the supreme court of Canada provided the remedy to the infant.

Insolvent

Insolvent is any person who cannot or could not satisfy his liabilities. A person must be declared
as insolvent by the court of law only then he has not right to sue anyone in future and not
otherwise. During insolvency proceedings, a receiver is appointed by the court therefore
insolvent person cannot sue for wrong to his property but he can sue for wrong to his person.
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