1 Law of Torts

Subjective Theory
The Law of Torts is an area of civil law. Generally, every claim that arises in a civil court, with the
exception of contractual disputes, falls under the Law of Torts. This is a breach of a duty imposed
by law, which gives rise to a civil right of action for a remedy not exclusive to any other area of law.
The word ‘tort’ is derived from the Latin word tortum, which means twisted, or crooked, or wrong, or
unlawful. A tort is an act or omission other than a breach of contract that gives rise to injury or harm
to another, and amounts to a civil wrong, for which courts may impose liability. The law of tort is based
on the maxim Ubi jus ibi remedium, which means where there is a wrong, there is a remedy. The basic
aim of the law of tort is to shift the losses from the person affected to the person who caused the loss.
The law of tort is based on the doctrine of ‘balance of interest’. The law of torts aims to adjust these
losses and to afford compensation for injuries sustained by one person due to the conduct of another.
However, the law of tort does not attempt to compensate for all losses.
To extract compensation as per the tortious liability, two conditions must be present.
1. Commission of a wrongful act: A wrongful act can be either morally or legally wrong, and can also
be both simultaneously. A legal wrongful act affects one’s legal right; the wrongful act must be
recognised by law, and the act must be in violation of the law. For example, if someone whose
religion does not allow him/her to eat non-vegetarian food still one eats it, he/she will be morally
wrong but not legally wrong. On the other hand, if a person whose religion does not allow him/her
to eat non-vegetarian food and s/he strictly follows that, but someone forcibly feeds such a food
item to that him/her, then it is legally wrong on the other person’s part.
2. Legal damage: Legal damage is the second important ingredient in constituting a tort. To prove
an action for tort in court, the plaintiff has to prove that there was a wrongful act, or an act or
omission, which resulted in the breach of a legal duty or violation of a legal right. So, there must
be a violation of a person’s legal right; if there is no violation of a legal right, there can be no action
under the law of torts. If there has been a violation of a legal right, the same is actionable, whether
the plaintiff has suffered any loss or not. This is expressed by the maxim, Injuria sine damnum,
where ‘Injuria’ refers to ‘infringement of a legal right of a person’, and the term ‘damnum’ means
‘substantial harm, loss, or damage to that individual’. The term ‘sine’ means ‘without’. However, if
there is no violation of a legal right, no action can lie in a court, despite the loss, harm, or damage
to the plaintiff caused by the defendant.
Illustration: A runs a successful school; after five months, another school opens nearby, due to
which A suffered heavy losses in the business. Here, A has suffered no legal damage, but has
only suffered damage in terms of business value, so he cannot sue the competitor school for any
damages. This is similar to the case of Gloucester Grammar School [(1410) Y B 11 Hen IV 27].
Two maxims, namely illustrate the factual significance of legal damage.
y Injuria sine damnum
y Damnum sine injuria
Injuria sine damnum means injury without damage or infringement of an absolute private right
without any actual loss or damage. Such damage is actionable under the law of torts. It occurs
when a person suffers legal damage instead of an actual loss, i.e., his legal right is infringed by
some other individual.

Law of Torts 1
 An example of this can be the landmark case of Ashby versus White [(1703) 92 ER 126], where
Ashby, the plaintiff, was prevented from voting by the constable, White. This rule is based on the
old maxim Ubi jus ibi remedium, which means ‘where there is a right, there will be a remedy.’
Another example in the Indian context would be the case of Bhim Singh versus State of J&K
[AIR 1986 SC 494], where the plaintiff was a member of the Legislative Assembly of Jammu and
Kashmir and was arrested so that he could be prevented from attending the Assembly session.
Here, his legal right was infringed.
Damnum sine injuria, on the other hand, translates to ‘damage without injury’. Here, the party
affected suffers damage, which may also be physical, but suffers no infringement of one’s legal
rights. In other words, it means an actual and substantial loss to a party without any infringement
of a legal right. In this case, no action lies in the hands of the plaintiff, as there is no violation of
a legal right.
For example, there are two shopkeepers, say A and B, trading in the same commodity; A starts
selling the said commodity at a discounted rate, which causes detrimental damage to B. Here,
even though B suffers damage, he cannot recover from this damage from A, because there was no
wrongful act committed by A.

Important Definitions of Tort

Section 2(m) of the Limitation Act, 1963, addresses tort as being a civil wrong, which is not just
exclusively a breach of contract or a breach of trust.

Winfield says: “Tortious liability arises from the breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is redressible by an action or unliquidated damages.”
According to Salmond: “It is a civil wrong for which the remedy is a common-law action for unliquidated
damages and which is not exclusively the breach of a contract or the breach of a trust or other merely
equitable obligation.”
Pollock says: “Tort is an act or omission (not merely the breach of a duty arising out of personal
relations, or undertaken by a contract) which is related to harm suffered by a determinate person,
giving rise to a civil remedy which is not an action of contract.”

Nature of Tort
It can be said that a tort is a civil wrong, but every civil wrong is not a tort. The ‘civil wrong’ in question
must be an act that the law regards as wrongful. It is not about a moral or social wrong. Thus, it may
be observed that:
y A tort is a civil wrong.
y Such civil wrong is other than a mere breach of contract or a breach of trust.
y Such wrong is redressable by an action for unliquidated damages.

Q. Differentiate between a ‘contract’ and a ‘tort’.

Basis Contract Tort

Meaning A contract means a promise or set of Tort covers such damage that may have
promises, which the law can or will been a result of omissions, actions, or
enforce if any eventuality arises. statements made by another party, in
such a way that it was regarded as a
breach of their duty or obligation.

2 Law of Torts
 Rights In contract law, obligations and rights are court, usually, creates obligations and
a result of the acts of agreement among rights, and the common law.
the parties involved.

Duties In a contract, the parties chiefly In tort, the law determines the duties,
determine their duties, i.e., the parties i.e., the parties cannot choose whether
can decide to be or not be bound under they will be bound under the law.
the contract.

Minor A minor can be made liable for torts, but A minor can be sued under torts, and
the person is limited in liability when it the damages will be paid from his/her
comes to a contract. property.

Damages Contract laws award liquidated damages. Tort laws award damages as either real,
unliquidated.

Limitation In a contract, the period runs from the In torts, the limitation period runs from
period date when the contract was breached. the time the damage was done.

Q. Differentiate between a ‘tort’ and a ‘crime’.

Basis Tort Crime

Meaning A tort is an infringement of an A crime is a breach of public rights

individual’s private or civil right. and duties that affects the whole
community.

Compensation The wrongdoer has to compensate the The State punishes the wrongdoer.
injured party.

Nature of The injured party brings the action. The proceedings are conducted in the
proceeding name of the State.

Pigeon Hole Theory—Salmond’s Theory of Law of Torts

Is it the law of tort or the law of torts? This question gave rise to multiple theories by various academic
scholars, who tried to answer as per their understanding of tort/torts under the common law system.
The rise of this particular question also came from one of the most esteemed scholars, Sir John
William Salmond who asked, “Does the Law of Torts consist of the general fundamental principle that
it is wrongful to cause harm to other persons in the absence of some specific ground of justification or
excuse, or does it consist of a number of specific rules prohibiting certain kind of harmful activity, and
leaving all the residue outside the sphere of legal responsibility?” Thus, if the legal fraternity considers
the law of tort (first alternative), it is believed that it thinks that every wrongful act should be treated
as a tort, when there is no excuse or justification for it to not be considered as one.
On the other hand, the law of torts (second alternative) would be expounded to have certain specific
wrongs defined under them beyond which liability cannot arise if an act does not fit into the specified
heads. Most scholars had considered these two sides of the coin, and took their stance accordingly,
which led Salmond to come up with the Pigeon Hole Theory.
Salmond’s stance on the whole idea of this particular law was clear when he chose the second
alternative, i.e., the law of torts. He called this the Pigeon Hole Theory, where he claimed that the

Law of Torts 3
 specified heads as stated above would act as “pigeon holes”. Now, a person who has committed
a wrongful act would only be liable, if the victim of the said act is able to put a label to the act
committed. If the ‘act’ can fall into any one of the pigeon holes or under any specified ‘torts’, he or she
can file for a case; however, if the defendant’s act does not fall into any hole, it would straightaway
mean that the defendant has not committed any tort.
According to Salmond, “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.”
Apart from Salmond, other academic scholars have read and supported his theory of pigeon holes.
Edward Jenks, an English jurist, reviewed Salmond’s theory and opined that nowhere in Salmond’s
theory it is said or implied that courts cannot create new torts; however, the ones created should be
somewhat similar to the ones that already exist. Heuston along with Glanville Williams had similar
thinking regarding the pigeon hole theory and supported Salmond by saying that having pigeon holes for
the law does not mean that these holes are not capacious and are strict to their existing parameters;
they still can fit other heads and are not incapable of being added to.
Although the theory of pigeon holes was considered and understood by many, the other side of the
coin was also not ignored and was argued by various academic writers. The idea of the law of ‘tort’ was
taken up by Winfield. As also seen above, this theory proposes that all wrongs be considered a tort;
liability should arise if no lawful justification for it can be provided. Here, Winfield had transformed this
theory into a tree, saying that as branches of a tree grow and spread out in various directions; similarly
law of tort also expands within the society, and cannot be confined into a single space or ‘holes’.
Winfield’s theory also got an immense support from various judges. For example, in the case of Ashby
versus White [(1703) 2 Ld Raym 938], Holt CJ said: “if a man can multiply injuries, actions must be
multiplied too, so every man who has been injured must be compensated effectively.” Similarly, Pratt,
CJ, and Pollock also support this theory of the law of tort. There have also been various examples of
tort being formed by the courts, like the case of Strict Liability in Rylands versus Fletcher, (1868) LR
3 HL 330; tort of deceit in Pasley versus Freeman, (1789) 3 TR 51; inducement in breach of contract
in Lumley versus Gye, (1853) 2 E and B 216; inducement to a wife to leave her husband in Winsmore
versus Greenbank, (1745) Willes 577; and the tort of intimidation in Rookes versus Barnard [(1964) AC
1129]. Moreover, the above idea of Jenks has also been questioned here since the new torts that came
into existence, like the rule of strict liability or negligence were not similar to the ones which already
existed. Hence, his concepts of similarity between the torts have proven slightly unjust.
In extension, Winfield has also made some changes to the proposed theory and said he does not
disagree with Salmond’s idea of pigeon holes. He divides the two into broader and narrower aspects of
tort law, and said, “From a narrow and practical point of view, the pigeon hole theory will suffice, but
from a broad outlook, the other theory is valid. If we concentrate attention on the law of tort at the
moment, entirely excluding the development of the law, past and future, then it corresponds to the
second theory. If we take the wider view, that the law of tort has grown for and is still growing, then
the first theory seems more valid.” The Supreme Court of India had also highlighted in Jay Laxmi Salt
Works (P) Ltd versus State of Gujarat [JT 1994 (3) SC 492], that the law of torts is a developing field of
law, and that to barricade it would be injudicious.

4 Law of Torts
General Defences under the Law of Torts
When a plaintiff brings an action against a defendant for a tort committed by him, he will be held
liable for it if all essential ingredients are required for that wrong. But some defences are available to
the defendant, which can absolve him from the liability arising from the wrong committed. These are
known as ‘General Defences’ in the law of torts.
Volenti non-fit injuria: In case a plaintiff voluntarily suffers some harm, he has no remedy for that
under the law of torts and he is not allowed to complain about the same. The reason behind this
defence is that no one can enforce a right he voluntarily abandoned or waived. Consent to suffer harm
can be expressed or implied. Some examples of the defence are as follows.
y When you invite somebody to your house, you cannot sue your guests for trespass.
y If you have agreed to a surgical operation, you cannot sue the surgeon for it.
y If you agree to the publication of something that you were aware of, you cannot sue the publisher
for defamation.
In Hall versus 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, of which one was thrown among the people 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 Padmavathi versus Dugganaika [(1975) 1 Kam LJ 93], the driver took the jeep to get it refilled with
petrol. 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 the lift, were thrown out of the jeep and sustained 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.
In Illot versus Wilkes [(1820) 3 B and Ald 304], a trespasser was injured due to spring guns on the
defendant’s land. He knowingly undertook the risk and suffered injuries. This was not actionable and
the defendant was not liable in the case.

Consent by Fraud
y For this defence to be available, it is important to show that the plaintiff’s consent was freely given.
It would not be a good defence if the consent were obtained under compulsion or by fraud. Consent
must be given for an act done by the defendant.
y In the case of Lakshmi Rajan versus Malar Hospital, a 40-year-old married woman noticed a lump in
her breast, but this pain did not affect her uterus. After the operation, she learnt that her uterus had
been removed without justification. The hospital authorities were liable for this act. The patient’s
consent was not taken for the operation to remove the uterus.
y If a person cannot give consent, their guardian’s consent is sufficient.
y Consent obtained by fraud is not real consent and does not serve as a good defence.
y In Hegarty versus Shine, it was held that mere concealment of facts is not considered fraud to vitiate
consent. Here, the plaintiff’s paramour had infected her with some venereal disease, and she filed
a suit seeking an action for assault against him. The action failed because mere disclosure of facts
does not amount to fraud. Based on the principle ex turpicausa non orituractio, i.e., no action arises
from an immoral cause.

Law of Torts 5
 y In some criminal cases, mere submission does not imply consent, if the same has been taken by
fraud, which induced a mistake in the victim’s mind so as to the real nature of the act.
y 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.
y In R versus Williams [(1923) 1 KB 340], a music teacher was held guilty of raping a 16-year-old girl
under the pretext that the same was done to improve her throat and enhance her voice. Here, the
girl misunderstood the very nature of the act done with her and consented to it, considering it a
method to improve her voice.

Consent under Compulsion

y There is no consent when someone consents to an act without free will or under some compulsion.
It is also applicable in cases where the person giving consent does not have full freedom to decide.
y This situation generally arises in a master–servant relationship, where the servant is compelled to
do everything his master asks him to do. Thus, there is no applicability of the maxim volenti non-fit
injuria when a servant is compelled to do some work without his own will. But if he does something
without compulsion, he can be met with this defence of consent. Mere knowledge does not imply
assent.
Plaintiff, the wrongdoer: There is a maxim ex turpicausa non orituractio, which means that ‘from an
immoral cause, no action arises’. If the basis of the action by the plaintiff is an unlawful contract,
he cannot succeed in his actions and cannot recover the damages. If a defendant asserts that the
claimant himself is the wrongdoer and is not entitled to the damages, it does not mean that the court
will declare him free from the liability; he will not be liable under this head.
In the case of Bird versus Holbrook [130 ER 911 (C.P. 1825)], 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.
Inevitable accident: An accident means an unexpected injury. If the same accident could not have
been stopped or avoided despite taking all due care and precautions on the defendant’s part, 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 precautions, and there was no intent to harm the plaintiff.
In Brown versus 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 serious injuries. The incident was purely an inevitable accident for which no claim could lie.
So, the court held that the defendant was not liable for the injuries suffered by the plaintiff as it was
purely an accident.
Act of God: The ‘Act of God’ serves as a good defence under the law of torts. It is also recognised as a
valid defence in the rule of ‘Strict Liability’ case of Rylands versus Fletcher. The defence of the ‘Act of
God’ is well explained in the case of Nichols versus Mars land [1875], the defendant had constructed
certain artificial lakes on her land by damming up a natural stream at a point higher up than the
defendant’s land. An extraordinary rainfall (greater and more violent than any within the memory of
witnesses) caused the stream and lakes to swell to such an extent that the artificial banks burst
and water flowed onto the plaintiff’s land and carried away four country bridges. The plaintiff sued
on behalf of the country, contending that the defendant was liable under the rule in Rylands versus
Fletcher, but this contention was rejected and the defendant was held not liable. The court held that
the plaintiff ought not to be liable for an extraordinary act of nature. The essentials required for this
defence are as follows.

6 Law of Torts
y Work of natural forces
y An extraordinary occurrence, and not the one which could be anticipated and guarded against
reasonably
Private defence: The law protects one’s life and property, allowing the use of reasonable force to
protect oneself and one’s property. The use of force is justified only for 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 some day
he will be attacked by B.
The force used must be reasonable and repel an imminent danger.
For A tried to commit a robbery in the house of B. B suddenly drew his sword and chopped A’s head.
This act of B would not be justified, and the defence of private defence cannot be pleaded.
Even, for the protection of property, the law has only allowed taking such measures necessary to
prevent the danger.
For example, fixing broken glass pieces on a wall, keeping a fierce dog, etc., are all justified in the eyes
of law.
In Bird versus Holbrook, 1825, 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 was not justified and the plaintiff
was entitled to get compensation for the injuries suffered by him.
In Collins versus Renison, 1973 QB 100, 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 gently
pushed him off the ladder and nothing else. It was held that the force used was not justifiable as the
defence.
Mistake: Mistake is of two types.
y Mistake of law
y Mistake of fact
In both the conditions, no defence is available to the defendant. When a defendant acts under a
mistaken belief, only in some situations he can use the defence of mistake, to avoid his liability under
the law of torts. In Consolidated Company versus Curtis [(1892) 1 QB 495], an auctioneer auctioned
some goods to 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 the 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 it was done intentionally, it is not
actionable and serves as a good defence. However, necessity should be distinguished from private
defence and an inevitable accident.
y In necessity, the infliction of harm is upon an innocent, whereas in case of private defence, the
plaintiff is himself the wrongdoer.
y In necessity, the harm is done intentionally, whereas in case of an inevitable accident, the harm is
caused despite all efforts to avoid it.
For example, operating on an unconscious patient, just to save his life, is justified.
Statutory authority: If any Act or statute authorises an act, it is not actionable, even if it constitutes
a tort otherwise. It is a complete defence, and the injured party has no remedy except for claiming
compensation, as the statute may have provided.

Law of Torts 7
 Immunity under statutory authority is not only for obvious and incidental harm. In Vaughan versus
Taff Valde Rail Co [(1858) 157 ER 667], sparks from an engine of the respondent’s railway company
authorised 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.
Absolute and conditional authority: The authority given by a statute can be of two types—absolute
and 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 versus Hill [(1882) 47 LT 29], 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 unsafe for residents, as the disease could spread in that area. Considering
it a nuisance, an injunction was issued against the hospital. The authority, in this case, was conditional.

Joint Tortfeasors
All persons who aid, counsel, direct, or join in the committal of a wrongful act are joint tortfeasors. In
other words, when two or more persons unite to cause damage to a third person, they shall be called
joint tortfeasors. Joint tortfeasor, in itself, signifies the combined liability to wrongdoers in case of civil
wrong. It is said that each tortfeasor, in case of joint liability, shall only be liable to pay for the amount
of damage caused; that means, the compensation of damage gets divided among the tortfeasors as
per the respective losses caused by them.

Joint Tortfeasors in India

The Supreme Court of India, in Khusro S Gandhi versus Guzdar, refused to follow the common law of
England that originally talked about principles and rules, such as each tortfeasor must be liable for the
whole damage and not individually. The court held that, in order to release all joint tortfeasors from
the liabilities, the plaintiff must receive full satisfaction, or that what the law must consider as such
from a tortfeasor before other joint tortfeasors can rely on accord and satisfaction.

Instances of Liabilities of Joint Tortfeasors

1. Agency: When one person acts on behalf of some other person, he is said to be the agent of such
person. In cases of agent–principal, when an agent commits a tort during and in the course of his
business, the principal will be jointly liable with the agent, i.e., both of them will have joint liability.
2. Vicarious liability: When a person is liable for the tort committed by another person, their liability
is combined together as a joint liability. For example, the tort committed by a servant shall not be
independent; it will also constitute the joint liability of the master. Therefore, they both shall be
joint tortfeasors.
3. Joint Action: When two or more persons physically commit an act, which is a civil wrong, they both
are jointly and severally liable for the act.

Vicarious Liability
Usually, a person is liable for his own acts only. However, vicarious liability under the law of torts refers
to a situation where someone is held responsible for another person’s actions or omissions.

8 Law of Torts
Liability of the principal for the tort of his agent: Qui facit per alium facit per se, i.e., the act of an agent
is the act of the principal. Where one person authorises another to commit a tort, the liability for that
will be on the person who has committed it and the one who authorised it.
The principal is vicariously liable for the tort his agent committed because of the principal–agent
relationship between them. They are considered as joint tortfeasors. In such a case, the plaintiff can
either sue the principal, the agent, or both.
Liability of partners for each other’s tort: The relationship between the partners is between the
principal and agent. For a tort committed by any partner in the ordinary course of business of a firm,
all other partners are liable to the same extent as the guilty party.
In Lloyd versus Grace Smith and Company [1912] AC 716: [1912] UKHL 1, a lady (plaintiff) sold her
property to a company. The lady was required to sign a few documents. So, the company sent its agent
to get the papers signed by the plaintiff lady. The agent fraudulently made a gift deed of the plaintiff’s
property and took her signatures on that gift deed. The lady filed a suit against the company. Here, the
company was held vicariously liable for the wrongful act of its agent.
Liability of the master for the tort of his servant: The vicarious liability of a master, under the law of
torts, for the acts of his servant is based on the maxim, respondeat superior (let the principal be held
responsible). This puts the master in the same position as if he had done the act himself.
There are two essentials for the liability of the master to arise.
y The servant committed the tort.
y The servant committed the tort during and in the course of his employment.
Liability of the State or liability of the administration: The term ‘administration’ is synonymous with
‘State’ or ‘Government’. To what extent the administration would be liable for the torts committed by its
servants, is a complex problem, especially in developing countries with ever widening State activities.
The liability of the government, in tort law, is governed by the principles of public law, inherited from
the British Common Law and the provisions of the Constitution.
The whole idea of vicarious liability of the State for the torts committed by its servants is based on
three principles.
y Respondeat superior (let the principal be liable)
y Qui facit per alium facit per se (he who acts through another is presumed in law to do it himself)
y Socialisation of compensation
The position of State liability is stated under Article 300 of the Constitution of India. Clause (1) of
Article 300 of the Constitution provides that the Government of India may sue or be sued by the name
of the Union of India, and the Government of a State may sue or be sued by the name of the State;
and, that subject to any provisions which an Act of Parliament may make or of the Legislature of such
State, enacted by powers conferred by the Constitution, the Government of India or the Government
of a State may sue or be sued about their respective affairs in the like cases as the Dominion of India
and the corresponding Provinces or the corresponding Indian States might have sued or be sued, “if
this Constitution had not been enacted”.
Sovereign functions are those actions of the State, for which it is not answerable in any court of law.
For instance, acts such as the defence of the country, raising and maintaining armed forces, making
peace or war, foreign affairs, and acquiring and retaining territory, are functions that are indicative of
external sovereignty and are political in nature. Therefore, they are not amenable to the jurisdiction

Law of Torts 9
 of ordinary civil courts. The State is immune from being sued, as the jurisdiction of the courts in such
matters is impliedly barred.
In the pre constitutional judgement of Secretary of State versus Hari Bhanji [ILR (1882) 5 Mad 273], the
Madras High Court held that State immunity was confined to acts of the State. It was defined that
the acts of the State are acts done in the exercise of sovereign power, where the act complained of
is professedly done under the sanction of the municipal law, and in the exercise of powers conferred
by the law. The fact that it is done by the sovereign powers, and is not an act that a private individual
could do, does not oust the jurisdiction of the civil court. The Madras High Court judgement in Hari
Bhanji case holds that the Government may not be liable for the acts connected with public safety,
even though they are not the acts of the State. This view was reiterated in Ross versus Secretary of
State, (1913) 37 Ma 55. The Allahabad High Court took a similar view in Kishanchand versus Secretary of
State, ILR (1974) II Del 637.
However, in Secretary of State versus Cockraft [AIR 1915 Mad 993: (1916) ILR 39 Mad 351], making or
repairing a military road was considered a sovereign function. The Government was held not liable for
the negligence of its servants in the stacking of gravel on the road, resulting in a carriage accident that
injured the plaintiff.
In the post constitutional judicial decision of State of Rajasthan versus Vidyawati [AIR 1962 SC 933],
the respondents filed a suit for the tort committed by an employee (driver) of a State (Collector of
Udaipur), and the case questioned whether the State was liable for the tortious act of its servant. The
court held that the liability of the State in respect of the tortious act of its servant, within the scope of
his employment and functioning as such was similar to that of any other employer. It was held, in this
case, that the State should be as much liable for tort, in respect of the tortuous acts committed by its
servant, within the scope of his employment and functioning as such as any other employer.

Strict Liability
This concept states that any person, who keeps some hazardous substance on their premises, will be
held responsible if such substance escapes the premises and causes any damage. Under the law of
torts, the rule of strict liability has been laid down in the landmark case of Rylands versus Fletcher.
There was a land (mill) of the defendant, and he wanted to construct a reservoir on his land. So, he
employed an independent contractor to construct a reservoir. In the course of the construction of the
reservoir, the contractor dug up the whole land and found a pipeline passing through the land to the
coal mine of the plaintiff. Nevertheless, the contractor constructed the reservoir, and due to the heavy
weight, the pipeline burst. This caused a heavy loss to the coal mine of the plaintiff. Thereafter, the
plaintiff filed a civil suit against the defendant. The defendant took the defence that it was a wrongful
act by an independent contractor, and he had no role to play. But the plaintiff took the plea that he was
not claiming damages under vicarious liability, rather it was a claim under the concept of strict liability.
The court strictly made liable the defendant for the act of the independent contractor.

Essentials of Strict Liability

Dangerous substance: The defendant will be held strictly liable only if a ‘dangerous’ substance escapes
from his premises. To impose strict liability, a dangerous substance can be defined as any substance
that can cause mischief or harm if it escapes. Things like explosives, toxic gases, electricity, etc., can
be dangerous.
Escape: For a defendant to be made strictly liable, the material should have escaped from his premises
and should not be within reach of the defendant after its escape.

10 Law of Torts
For instance, the defendant has some poisonous plants on his property. Leaves from the plant enter
the property of the plaintiff and are eaten by his cattle who, as a result, die. The defendant will be liable
for the loss. On the other hand, if the cattle belonging to the plaintiff enter the defendant’s premises,
eat the poisonous leaves, and die, then the defendant will not be liable. In the judicial pronouncement
of Reads versus Lyons and Co [(1947) AC 156], the House of Lords held that the defendant could not be
held liable if there was no escape.
Non-natural Use: To constitute a strict liability, there should be a non-natural use of the land. In the
case of Rylands versus Fletcher, the water collected in the reservoir was considered to be a non-
natural use of the land. Storage of water for domestic use is considered to be natural use. But storing
water to energise a mill was considered non-natural by the court. When the term ‘non-natural’ is to be
considered, it should be kept in mind that some special use must increase the danger to others. Supply
of cooking gas through the pipeline, electric wiring in a house, etc., is considered to be the natural use
of land. For instance, if the defendant lights up a fire in his fireplace, and a spark escapes and causes
a fire, then the defendant will not be held liable as it was the natural use of the land.

Exceptions to Strict Liability

Plaintiff’s fault: If the plaintiff is at fault, and any damage is caused, the defendant would not be held
liable as the plaintiff came in contact with the dangerous thing. In the judicial pronouncement of Ponting
versus Noakes (1849) 2 QB 281, the plaintiff’s horse died after it entered the defendant’s property and
ate some poisonous leaves. The court held that it was wrongful intrusion and the defendant was not
to be held strictly liable for such loss.
Act of God: The phrase ‘Act of God’ can be defined as an event beyond any human agency’s control.
Such acts happen exclusively due to natural forces and cannot be prevented even while exercising
caution and foresight. The defendant would not be liable for any loss if the dangerous substance
escaped because of some unforeseen and natural event, which could not have been controlled in any
manner.
Act of the third party: This rule also does not apply when damage is caused due to the act of a third
party. The third party means a person is neither the servant of the defendant, nor the defendant
has any contract with them or control over their work. But where the acts of the third party can be
foreseen, the defendant must take due care, otherwise, he will be held responsible. For instance, in
the case of Box versus Jubb [LR 4 EX Div 76], where the reservoir of the defendant overflew because
a third party emptied his drain through the defendant’s reservoir, the court held that the defendant
would not be liable.
Consent of the plaintiff: This exception follows the violenti non fit injuria principle. For instance, A and
B are neighbours, and they share the same water source situated on A’s land; if the water flows over
to B’s land and causes damage to B, then he cannot claim the damages.

Absolute Liability
Strict liability, without exceptions, becomes absolute liability. The principle of absolute liability was
used in India in the case of MC Mehta versus Union of India. The burden of proof rests solely on the
defendant.
In this case, there was a US based firm that produced oleum gas in India. One day, due to a fault of
a third party, which forgot to switch on the safety buttons, there was a leakage of oleum gas. This
leakage caused damage and also caused the death of some people. The plaintiff filed a suit against the
US based firm, but the firm took the plea under the strict liability rule that the damage was caused by

Law of Torts 11
 the third party’s default. And, therefore, the firm prayed for an exemption to give compensation to the
victims. But, with the passage of time, the court evolved a concept of ‘Absolute Liability’, making the
firm absolutely liable to provide the damages to the victims, and thus, the exception of strict liability
was not applied.

Nuisance
The term ‘nuisance’ is derived from the French word nuire, which is further derived from the Latin word
nocere, which means ‘to cause hurt’ or ‘to annoy’.
According to Salmond: “The wrong of Nuisance consists in causing or allowing without lawful justification
the escape of any deleterious thing from his land or from elsewhere into land in possession of the
plaintiff, e.g., water, smoke, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals.”
Nuisance can be classified into two types.
y Public nuisance
y Private nuisance

Public Nuisance
Section 3(48) of the General Clauses Act, 1897, defines ‘public nuisance’ as defined in the Indian Penal
Code (IPC). The IPC defines it under Section 268 as an illegal act or omission that results in common
injury, danger, or annoyance to the people who dwell or occupy a property. It is also extended to
include people in the vicinity. Such annoyance must infringe the certain rights of those people.
Thus, public nuisance can include all acts that affect the general public or a large section of a community,
for example, a person operates a trade that causes loud noise, keeps inflammable substances in large
quantities, etc. In the case of Ram Raj Singh versus Babulal [AIR 1982 All 285], where the defendants
installed a brick grinding machine adjacent to the plaintiff’s land, who was a medical practitioner, it
was held that the dust from the machine caused public nuisance as it affected all patients and visitors
as well.
In certain circumstances, an individual can have a private right to the action in case of a public
nuisance, if he can prove the following.
y He must show a personal injury, i.e., beyond what is suffered by the general public.
y The such injury must be of a substantial character.
y Such injury must be direct.
y Though in India, Section 91 of the Civil Procedural Code (CPC) allows a civil action in case of a public
nuisance without any proof of special damage. Such suit can be instituted by the advocate general,
or by two or more persons, with the leave of the court.

Private Nuisance
The concept of private nuisance involves injury to a particular individual and not to the public at large.
In such cases, the remedy of a civil action, injunction, or both is available to such individuals. The
remedy of indictment does not exist in case of private nuisance.
The law of private nuisance protects the interest of an occupier of the land. It seeks to maintain a
position where an individual can exercise his right to enjoy his property, while not causing inconvenience
to his neighbours.

12 Law of Torts
Elements of Private Nuisance
1. There must be an unlawful or unreasonable interference.
An act of nuisance can be proved only in a situation where someone unlawfully or without any
reasonable cause interferes with the peaceful enjoyment of the plaintiff on his property. Thus,
he would not be held liable if someone under legal authority ends up offending a nuisance while
carrying on the authorised work.
2. Such unlawful interference must be with the enjoyment or use of the land, or some right, or in
connection with the land.
Every person has a right to enjoy their property peacefully. This law is in place to protect such
rights only. In the case of Datta Mal Chiranji Lal versus L. Ladli Prasad [AIR 1960 All 632], where the
plaintiff was not able to enjoy peace in his house due to excessive noise produced by the electric
mill installed by the defendants, it was held that the plaintiff has a right to the action.
3. The plaintiff must suffer some damage.
Here, the damage can be to the property or the plaintiff in the form of physical discomfort. Where
damage is done to the property, any sensible injury would be enough to support an action. In
the case of St Helen’s Smelting Co versus Tipping, (1865) 77 HCL 642, where the fumes from the
defendant’s manufacturing industry damaged the trees and shrubs on the plaintiff’s land, it was
held to be a sufficient amount of damage to the property.

Remedies for Nuisance

1. Injunctions: It is one of the most important remedies available in cases of nuisance, which is
discretionary. It is upon the court to exercise its discretion, whether to grant such a remedy or
not, though the court must always act judicially while deciding so. In the case of Miller versus
Jackson [(1977) 3 Ell ER 388], the plaintiff constructed his house near a cricket playground. When
he complained about the nuisance caused by the cricket ball, the court refused to give him the
remedy of injunction because: firstly, he must have known about the existence of such ground;
and secondly, the court considered the interest of the entire village by having a ground to play.
2. Damages: Damages are monetary compensation given to a plaintiff. It could be nominal damages
(which is given to recognise the harm suffered by the plaintiff), statutory damages (which is given
as per a statutory law), or exemplary damages (which is given to set an example for everyone so
that such is not repeated in future).
3. Abatement: This is a self-help remedy, where the injured person does not take legal recourse to
seek the remedy. This remedy is usually not advisable as even courts do not favour it. One such
example is when the plaintiff himself cuts the branches of a tree of the defendant, which causes
him a nuisance.

Defences to Nuisance
1. Prescriptive right to commit nuisance: This concept is embodied in Section 26 of the Limitation
Act and Section 15 of the Easements Act, that a title can be acquired by use and time because of
continuous possession of the property. This defence can be availed in case of a nuisance when the
defendant can show a peaceful enjoyment of property as an easement for 20 years. In Elliotson
versus Feetham [(1835) 2 Bing NC 34], the court approved the prescriptive right to a noise-some
trade when the defendants were able to prove 20 years of its existence.
2. Statutory authority: When the statutory law confers certain power, and such is exercised with due
care and skilfully without exceeding the conferred limit, the defendant can claim a defence against

Law of Torts 13
 the offence of nuisance. In Vaughan versus Taff Vale Rly, (1860) 5 HN 679, where the defendants
were having the statutory authority to run a locomotive engine on their railway tracks, it was held
that they cannot be held liable for the fire caused by the sparks of such engine.
3. Act of God: The defendants can claim the defence of the ‘act of God’ as those are beyond human
power or contemplation, and are caused by superior natural forces. In Nicholas versus Marsland,
(1876) 2 Ex D 1, where an unprecedented rainfall caused the bursting of the embankments of the
lake, it was held that the plaintiff cannot be made liable for the floods caused by such lakes, as
such was an act of God, which was unexpected and beyond human control.
4. Consent of the plaintiff: This is a defence of volenti non fit injuria, where the plaintiff has either
explicitly or impliedly consented to such an act of nuisance. In Kiddle versus City Business Properties
[1942] 1 KB 269, the plaintiff was a tenant in the defendant’s house, where he was occupying the
ground floor of the house. The gutter of the landlord’s house was blocked even at the time when
the plaintiff was taking the house on rent. Thus, as he had consented, the defendant was allowed
to claim this defence when damage was caused to the plaintiff’s stock.
5. Necessity: When the offence of nuisance is committed to preventing a threat or harm, the defendant
can claim the defence of necessity.
6. Trifles: The Latin maxim, de minimis non curat lex, means that the law does not concern itself with
insignificant and/or immaterial matters. Thus, no remedy is available to the plaintiff in a matter
which is immaterial in nature. For example, where the shadow of the defendant’s tree falls on the
plaintiff’s land, he cannot claim a remedy under the offence of nuisance.

Negligence
An offence is the result of an act that had been induced and carried out by, and due to, various factors
involved. The term ‘negligence’ is used for the purpose of fastening the defendant with liability under
civil law and, at times, under criminal law. Generally speaking, negligence is the amount of damage
incurred, which is determinative of the extent of liability in tort; but in criminal law, it is not the amount
of damage, but the amount and degree of negligence that is determinative of the liability.
A classic case of negligence is Donoghue versus Stevenson [1932] AC 562: [1932] UKHL 100: 1932 SC (HL)
31: 1932 SLT 317: [1932] WN 139, the famous ginger beer case. In this case, the plaintiff had suffered
stomach ache due to the contaminated beer she had drank. The beer had remains of a decomposed
snail, which were not apparent to the plaintiff or the seller, as the beer in question was contained in
an opaque can. The court, in this case, laid down the guiding principle of ascertaining the responsibility
of the act.
Lord Wright states: “Negligence means more than headless or careless conduct, whether in commission
or omission; it properly connotes the complex concept of duty, breach, and damage thereby suffered
by the person to whom the duty was owed.” In Blyth versus Birmingham Waterworks Co, Alderson B.
defined negligence as, “the omission to do something which a reasonable man would do, or doing
something which a prudent or reasonable man would not do.”
In Municipal Corporation of Delhi versus Subhagwanti, AIR 1966 SC 1750: 1966 SCR (3) 649, a clock
tower situated in the heart of the city, i.e., Chandni Chowk, Delhi, collapsed, causing the death of
a number of persons. The structure was 80 years old, whereas its normal life was 40-45 years. The
Municipal Corporation of Delhi, which had control of the structure, had obviously failed to get its
periodical check-up and necessary repairs done. The defendant corporation was, therefore, held liable
to pay compensation for the consequences of the collapse of the structure.

14 Law of Torts
In Nihal Kaur versus Director, PGI Chandigarh [III (1996) CPJ 112], scissors were left in a patient’s body
during operation. As a result, his condition worsened, and he died. Scissors were recovered from the
ashes after cremation. A compensation of Rs. 1,20,000 was awarded to the dependents of the deceased.

Elements of Negligence
Duty of care to the plaintiff: It means a legal duty, rather than merely a moral, religious, or social duty.
The plaintiff has to establish that the defendant owed him a specific legal duty to take care of, which
he has breached. There is no general rule of law defining such duty. It depends on each case whether
a duty exists.
In Donoghue versus Stevenson, Lords Atkin said, “It is remarkable how difficult it is to find in the
English authorities statements of general application defining the relations between parties that give
rise to the duty. The courts are concerned with the relations that come before them in actual litigation,
and it is sufficient to say whether the duty exists in those circumstances. The result is that the courts
have been engaged in an elaborate classification of duties as they exist in respect of property, whether
real or personal, with further divisions as to ownership, occupation, or control and distinctions based
on the particular relations of the one side or the other, whether manufacturer, salesman or landlord,
customer, tenant, stranger, and so on. In this way, it can be ascertained at any time whether the law
recognises a duty, but only where the case can be referred to some particular species examined and
classified.”
Breach of duty: A breach of duty means the non-observance of due care required in a particular
situation. The standard is that of a reasonable man or an ordinarily prudent man. If the defendant has
acted like a reasonably prudent man, there is no negligence. As stated by Alderson B., in Blyth versus
Birmingham Waterworks Co, “Negligence is the omission to do something which a reasonable man,
guided upon those considerations which ordinarily regulate the conduct of human affairs, would do,
or doing something which a prudent and reasonable man would not do.” The law requires the caution
that a prudent man would observe.

Standard of Care Required

1. The Importance of the Object to Be Attained
The law does not require the greatest possible care, but the care required is that of a reasonable
man under certain circumstances. The law permits taking chances of some measure of risks so
that in public interest, various kinds of activities should go on. “As has been pointed out, if all
the trains in this country were restricted to a speed of five miles an hour, there would be fewer
accidents, but our national life would be intolerably slowed down. If sufficiently important, the
purpose of being served justifies the assumption of the abnormal risk.”
2. The Magnitude of the Risk
The degree of care required varies according to each situation. What may be a careful act in
one situation may be a negligent act in another. The law does not demand the same amount of
care in all situations. The risk involved determines the precautions the defendant is expected to
take. The position in this regard was explained by Justice Venkataramiah, in Mysore State Road
Transport Corporation versus Albert Disa as: “Negligence is a failure in the duty to take due care.
The expression ‘due’ connotes the degree of care a reasonable man should take in a given set of
circumstances. What may amount to a ‘negligent’ act in a particular place and occasion may not
be a negligent act in another place or occasion. In deciding what care was called for by a particular

Law of Torts 15
 situation, one useful test is to enquire how obvious the risk must have been to an ordinary prudent
man.”
3. The Amount of Consideration for Which Services, Etc., Are Offered
The degree of care also depends on the kind of services offered by the defendant and the
consideration charged by the plaintiff. For instance, one who purchases a glass of water from a
trolley in the street for 10 or 25 paise is entitled to safe drinking water, which should not ordinarily
infect him. But if a person purchases a mineral water bottle for ₹10 or 15, he can justifiably demand
a higher degree of purity.
Damage: It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff.
The plaintiff also has to show that the damage, thus, caused is not too remote a consequence of the
defendant’s negligence.

Rebuttal of the Presumption of Negligence

The rule of res ipsa loquitur only shifts the burden of proof. Instead of the plaintiff proving negligence
on the defendant’s part, the defendant must disprove it. If the defendant can prove that what seems
to be negligent was due to some factors beyond his control, he can escape liability.
The Latin term res ipsa loquitur means ‘the thing speaks for itself’, which means the situation of
a particular act is enough to get the idea of what has happened. It is the principle that the mere
occurrence of some type of accident is sufficient to imply negligence.

Remedies for Negligence

The principal remedy in any negligence case will be an award of damages. The damage caused to
the claimant must be of a type that is ‘reasonably foreseeable’. A loss is reasonably foreseeable if a
reasonable man would have foreseen the type of injury, loss, or damage. As a general rule, the claimant
must prove that the defendant was in breach of the duty of care. Exceptionally, the defendant will have
to prove that he was not negligent. This would only happen if: (i) the harm would not have normally
happened if proper care were taken; or (ii) there is no other explanation for what has occurred, known
as res ipsa loquitur (the thing that speaks for itself); or (iii) the defendant was in control of the situation
and the victim was not.

Remoteness of Damage
Overseas Tankship (UK) versus Morts Dock and Engineering Co. (The Wagon Mound case)
Facts: Due to the defendant’s negligence, oil was spilled and accumulated around the claimant’s wharf.
The oil ignited, and the wharf suffered fire damage.
Held: The defendants were held not liable for negligence under the law of torts; while damage to the
wharf by oil pollution was foreseeable, damage by fire was not.
If the type of damage is reasonably foreseeable, the defendant is liable. It is irrelevant that the
defendant might not have been able to foresee its cause or its severity.

Defences against Negligence

In action for negligence under the law of torts, the following defences are available.
Contributory negligence: When a tort or a wrongful action is committed by negligence on part of the
plaintiff and the defendant, the defendant can raise the plea of contributory negligence. It is the
Common Law rule that anyone, who, by his negligence, contributed to the injury of which he complains,

16 Law of Torts
cannot maintain an action against another in respect of it because he will be considered, in law, to be
the author of his wrong.
In Butterfield versus Forrester (1809) 11 East 60, the defendant had put a pole across a public thoroughfare
in Durby, which he had no right to do. The plaintiff was riding that way at 8’o clock in the evening in
August when dusk was coming on, but the obstruction was still visible from a distance of 100 yards.
He was riding violently, rammed against the pole, and fell with the horse. It was held that the plaintiff
could not claim damages as he was also negligent.
God, or vis major: The phrase ‘act of God’ refers to some natural calamity, such as heavy rainfall, storm,
earthquake, and volcano. Two conditions are essential for this defence. (i) there must be the working of
natural forces, and (ii) the occurrence must be extraordinary, and not the one which could have been
anticipated.
It is such a direct, violent, sudden, and irresistible act of nature as could not, by any amount of human
foresight, be foreseen, or if foreseen, could not, by any amount of human care and skill, be resisted. In
Nicholas versus Marsland (1875) LR 10 Ex 255, the defendant had a series of artificial lakes on his land,
in the construction or maintenance of which there had been no negligence. Owing to exceptionally
heavy rain, some of the reservoirs burst and carried away four country bridges. It was held that the
defendant was not liable, as the water escaped by the act of God.
Inevitable accident: If the plaintiff has an unexpected injury owing to an unforeseen and inevitable
event, it is called an inevitable accident, despite reasonable care being ensured on the defendant’s
part. The defendant has to prove that he neither intended to injure the plaintiff, nor did he have the
means to avoid the injury despite taking reasonable care.
In Brown versus Kendall [(1859) 6 Cussing 292], the plaintiff’s and the defendant’s dogs were fighting.
While the defendant was trying to separate them, he accidentally hit the plaintiff, standing nearby, in
his eye. The injury to the plaintiff was held to be a result of an inevitable accident, and the defendant
was held not liable.
In Stanley versus Powell, (1891) 1 QB 86, the plaintiff and the defendant, who were members of a
shooting party, went for a pheasant shooting. The defendant fired at a pheasant, but the shot from his
gun glanced off an oak tree and injured the plaintiff. It was held that the accident was inevitable and
the defendant was not liable.

Defamation
Defamation under the law of torts is tarnishing the reputation of someone. Defamation is defined
under Section 499 of the Indian Penal Code (IPC), 1860: “Whoever, by words either spoken or intended
to be read, or by signs or by visible representations, makes or publishes any imputation concerning any
person intending to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person is said to defame that person.”
There are two types of defamation—one is libel, and another is slander. A published written statement
is called libel; on the other hand, if the statement, which brings in a loss of reputation and is spoken,
it is called slander.
Libel is addressed to the eyes, while slander is addressed to the ears. In libel, the statement is made in
hard and permanent form, such as writing, printing, or in the form of pictures. In slander, the words are
mostly spoken and in the form of visible or audible form. Libel is an actionable tort and comes under
the purview of criminal offence. On the other hand, slander is a civil injury, and no action can be taken

Law of Torts 17
 against it. The tort of libel is actionable per se (without proof of actual damage). On the other hand,
slander is actionable only on the proof of actual damage.
In the reputed judgement of SNM Abdi versus Prafulla Kumar Mahanta [AIR 2002 Gau 75], the Illustrated
Weekly of India published an article throwing allegations at the deposed Chief Minister of Assam. It was
found to be defamatory, and heavy damages were paid.

Essential Elements to Prove Defamation

1. The statement must be made: The first essential element is that the statement must be made.
The statement can be in words, written or spoken. It can be read or can be made by visible
representation.
2. The statement must directly refer to the plaintiff: The defamatory statement must be made
directly to the person, class of persons, a business organisation, etc., or even if not made directly,
should be recognised or identified to be made to him or her.
3. The statement must be defamatory: The statement should, in legal terms, be a defamatory
statement. A defamatory statement tends to diminish the good opinion that others hold about the
person, and it tends to make others look at him with hatred, ridicule, fear, or dislike.
4. The statement must be false: The statement should be false since truth is a defence against
defamation.
5. The statement must be published: In Mahendra Ram versus Harnandan Prasad, the court held
that the statement must be published, and an actual loss of reputation must be caused to claim
defamation.

Defences Available Against Defamation

1. The statement is true: If the statement is true, it is an absolute defence. If whatever has been
written in the statement is true and authentic, it would not amount to defamation. The burden of
proof is on the defendant to prove otherwise.
2. Fair and bona fide comment: If the statement is fair and in the public’s best interests, it is not
defamation.
3. Absolute privilege: In TJ Ponnen versus MC Verghese, the court held that privileged communication
between a husband and a wife is not defamation. The following statements are exempt from being
defamatory statements.
a. Statements made during judicial proceedings
b. Statements by government officials
c. Statements by legislators during debates in the Parliament
d. Statements during political speeches in parliamentary proceedings
e. Communication between spouses

Remedy for Defamation

The court looks into many things before deciding the amount of compensation for defamation.
y Conduct of the plaintiff
y Absence or refusal of any retraction or apology for libel
y Conduct of the defendant from the date of publication of libel to the date of the decree

18 Law of Torts
y His position and standing in the society
y Nature of libel

Trespass
An intentional wrongful act that has been done directly to harm the other person or his/her property
is called trespass. The intentional wrongful act implies that the act should be committed voluntarily.
In other words, the intention is a necessary element of trespass.
Trespass can be categorised into two types.
y Trespass to a person
y Trespass to property and goods

Trespass to Person
It is an unreasonable interference, with mala fide intention, with an individual’s body, committed either
by causing physical harm or by the apprehension of the use of force. It is further divided into assault,
battery, and false imprisonment.
Assault: An illegal apprehension of fear in another person’s mind, causing him to suffer harm, is known
as assault. No physical harm is needed to be established to prove assault. In the case of R versus
S George, Supreme Court of Canada [1960], a person took out a gun, pretending it to be loaded and
pointed it out to the other person. The other person, in the apprehension of fear, suffered shock.
The former person was held liable. It did not matter whether the gun was loaded or not. But the
foreseeability of the person of the apprehension of fear did matter. In the same case, if the gun was
pointed at the back of the other person, and he was unaware of it, this act would not have constituted
assault.
Similarly, in the case of R versus Constanza [1997 2 Cr App Rep 492], the defendant mailed 800 letters
to the plaintiff. The person also wrote offensive words on the main door of the plaintiff’s house, which
made her suffer clinical depression. The defendant was held liable for the assault and was penalised
as well.
Battery: When force is used against a person in such a manner that it causes a physical injury to him,
the use of such force is termed ‘battery’. The force so used should be intentional and without any
lawful justification. In other words, unintentional or lawful use of force cannot be termed as battery.
In the case of Stanley versus Powell [(1891) 1 QB 86], the plaintiff and the defendant were from the
shooting party. The defendant fired his gun at a pheasant. However, the bullet from his gun reverted
after striking a tree and hitting the plaintiff accidentally, which wounded the plaintiff. The defendant
was held not liable for the tort of battery because the act of the defendant was not intentional.
A mere obstruction cannot lead to the offence of battery. For instance, in Innes versus Wylie [(1844) 1
C and K 257], a policeman wrongfully and unlawfully restricted a person from entering a club. It was
held that the police officer was obstructing a wall to prevent an entrance into the premises. Therefore,
this did not constitute a battery.
Mayhem: It is a tort that injures an individual to such an extent that the victim cannot defend himself
from the wrongdoer. Injuries to the arm, hand, leg, and foot, in a manner that the body parts become
disabled, are examples of mayhem. It is sometimes termed an aggravated battery. In the case of
Fetter versus Beale [91 Eng Rep 1122], the plaintiff received damages from the defendant for battery
committed on him. Soon after, part of his skull also came out due to the battery. Consequentially, the

Law of Torts 19
 plaintiff sued the defendant for mayhem. The defendant was held liable for mayhem, too, and had to
compensate the plaintiff.
False imprisonment: When a person is intentionally restricted from exercising their freedom, they are
said to be falsely imprisoned. The cause of imprisonment, the plaintiff’s knowledge of their confinement,
and the defendant’s intention constitute the factors for wrongful imprisonment.
In the case of Herring versus Boyle [149 ER 1126 (Exch)], a school teacher, without any justified reason,
refused to permit a schoolboy to leave the school with his mother unless the mother paid the amount
of the fee, which was unpaid. This dialogue between the teacher and the mother took place when
the boy was not present there, and the boy was unaware that he was in wrongful restraint. Since
the person, who was restrained, did not know the fact, the court held that it did not amount to false
imprisonment and the school teacher was held not liable.

Defences to Trespass to a Person

1. Valid arrest: A lawful detention of a person if there is sufficient reason to believe that the person
is indulged in an offence or is involved in wrongdoing does not amount to false imprisonment. A
person can also be lawfully arrested for arresting a citizen without any justified reason.
2. Consent: If a person voluntarily consents to trespass, such an act would not amount to trespass.
In Robinson versus Balmain New Ferry Company Ltd. [(1910) AC 295], the plaintiff wished to take
a ferry across a river. He had to go through the turnstile to get to the wharf from which the
ferry would depart. The defendants administered the turnstile. The notices on either side of the
turnstile mentioned that one penny would be charged to use the turnstile. However, the plaintiff
changed his mind and decided to go through the turnstile. The defendants again demanded one
penny, which the plaintiff refused to pay. As a result, the defendants prohibited him from using
the turnstile. The plaintiff alleged that the defendants had falsely imprisoned him. However, the
court dismissed the plaintiff’s contention and stated that he agreed to take the risk that if he did
not pay a penny, he would not be allowed to return, and so, such detention by the defendants was
not held to be false imprisonment.
3. Probable cause: Sometimes, imprisonment is justified on the basis that the defendant was
allegedly a participant in a crime. Such imprisonment is not considered false imprisonment.
4. Self-defence: It is lawful for any person to use a reasonable amount of force for self-protection or
protection of any other person or property against any unlawful use of force. However, the use of
such force should be reasonable and proportionate. In the case of Cresswell versus Sirl [(1948) 1 KB
241], the defendant’s son shot the plaintiff’s dog because the dog attacked his pigs and sheep. The
plaintiff sued the defendant. The Court of Appeal held that there was no way to save the animals
other than shooting the dog, and therefore, neither the defendant nor his son was held liable for
the dog’s killing.

Remedies to Trespass to Person

1. Action for damages: A plaintiff can bring an action to claim damages whenever his/her body has
been trespassed. Monetary damages can be claimed not only for physical injury but also for injury
to his/her liberty.
2. Self-help: Self-help is a remedy available to a person who has been wrongfully restrained. The
person can free himself/herself instead of waiting for legal action.
3. Writ of Habeas Corpus: The Supreme Court, under Article 32, and the High Court, under Article 226
of the Indian Constitution, can issue a writ for a person who has been wrongfully detained. By this

20 Law of Torts
 writ, the detained individual must produce the detained person before the court and rationalise
his detention. The person would be immediately released if the court found the reason for the
detention unreasonable. In the landmark cases of Rudul Sah versus State of Bihar [(1983) 4 SCC
141], and Bhim Singh versus State of Jammu and Kashmir [AIR 1986 SC 494], the Supreme Court
had granted compensation in the writs of Habeas Corpus.

Trespass to Property or Goods

A wrongful intervention of one over the property or goods belonging to another, without any lawful
justification, is called trespass to land or goods, respectively. This interference should be of direct
and physical nature. Trespass to the property is looked within the purview of possession, rather
than ownership, of the goods or the property. In other words, a person possessing the goods or the
property, can bring a suit for trespass against the lawful owner if such an owner cannot provide lawful
justification for such intervention.
In Madhav Vithal Kudwa versus Madhavdas Vallabhdas [AIR 1979 Bom 49], the tenant lived on the first
floor of a multi-storeyed building. The plaintiff, being the landlord, alleged that the act of the defendant
parking his car in the compound of his building amounted to trespass. He asked for an injunction from
the court to restrain the defendant from such parking. However, the court held parking a vehicle could
not amount to trespass, as it was a multi-storeyed building.
In Basely versus Clarkson [(1681) 3 Lev 37 (CP)], the defendant was cutting the grass on his land, but
mistakenly, he crossed the boundary and cut the grass on the land of the neighbour. In the instant
case, the defendant’s plea of mistake under trespass to land was rejected. It is because his act was
not unintentional, though he committed a mistake regarding the presence of the boundary. However, it
would not amount to trespass, if the entry was proved to be involuntary. In Smith versus Stone [(1647)
82 ER 533], a person was thrown into the plaintiff’s land. Since his entry was not intentional, his act
did not amount to trespass.
It is a presumption in holding the possession rights of the land that the person who possesses a piece
of land possesses the earth below it and the sky above it. Thus, any entry beneath the surface, at any
depth, would be actionable trespass.
Trespass can be committed through air, land, animals, etc.
Aerial trespass: The possessor of the land has the right to the airspace, above the surface of the
earth, till infinity. However, in contemporary times, the possessor of the land has the right to airspace
above and earth below to the height and depth required for the ordinary use and enjoyment of land.
In Bernstein versus Skyviews [(1978) QB 479], Bernstein sued the defendants for trespass by shooting
pictures from a significant height, above the ground of his house. The court held that at such height,
the plaintiff had no justified use of airspace, and therefore, the defendant was held not liable for aerial
trespass.
Trespass by animals: Livestock keepers are responsible for any damage caused by their animals on
another person’s land. They are also liable even if their cattle trespasses on their own. The Cattle
Trespass Act, 1871, looks into this matter in India.
Trespass ab initio: A person who has legally entered into another person’s premises commits trespass
after his right to enter has ended. His act would make his original entry tortuous, and such a person
would be held liable for reimbursement for the entry and subsequent acts. Such trespass is termed
trespass ab initio. In the case of Minister of Health [1944] KB 298 (CA), it was held that a licensee,
whose licence has expired, can be prosecuted for trespassing if, upon request, he does not vacate the
premises in a reasonable time.

Law of Torts 21
 Remedies to Trespass against Property
The person whose possession rights of land are infringed can bring a suit for trespass against the
tortfeasor. He may also secure his/her possession against a trespasser using a reasonable amount of
force.

Damages
y Compensation: Financial damages can be procured from the defendant if significant losses have
been suffered due to such trespass. However, nominal compensation is generally granted, if no injury
is suffered.
y Injunction: Sometimes, the plaintiff does not ask for compensation but seeks injunction from the
court to prevent continuing or future trespass. This injunction, for example, can be in the form of the
removal of a tree belonging to the defendant.

Defences against Trespass to Property

y Consent: The act of intervention into the land or goods would not amount to trespass if the possessor
voluntarily gives consent to the plaintiff. In other words, the consensual act of intervention would
amount to trespass if such consent was induced by fraud, intoxication, or an incompetent person.
y Public necessity: When a person intentionally goes into another person’s property to protect the
community from immediate and imperative harm, such interference would not be considered
trespass. In Esso Petroleum Co versus Southport Corporation [1956] AC 28, the captain of a ship
committed trespass by letting oil flood a shoreline. It was necessary to protect his ship and the crew
members. Since this was a necessity, the defence of public necessity was accepted. However, this
defence will not be granted, if the person had an alternative course of action.
y Justification by Law: It is a defence in those situations where a person is permitted to enter into the
premises of someone by way of statute or the law of the land, for example, police officers, income
tax officers, etc.

Malicious Prosecution
Malicious prosecution, under the law of torts, refers to the institution of false criminal/bankruptcy/
liquidation proceedings against an individual motivated out of malice and not supported by any element
of reasonability or probability.

Essential Components of Malicious Prosecution

To assert the contention of malicious prosecution, the plaintiff has to establish that the act of the
defendant has all components that are imperative to establish liability in such cases.
y The defendant must have instituted a false proceeding against the plaintiff.
y The proceedings, so instituted, were a result of sheer malice, and must not have any element of
reasonableness or probability.
y The result of such proceedings must necessarily be in favour of the plaintiff, be it acquittal, or
suspension of the suit.
y It is for the plaintiff to prove that these proceedings have arbitrarily interfered with his liberty and
have led to adverse ramifications on his reputation in society.

22 Law of Torts
Civil Proceedings
In the case of Genu Ganapati versus Bhalchand Jivra, AIR 1981 Bom 170: (1981) 83 Cal LT 1 (NULL), the
Bombay High Court laid down similar ground rules for establishing civil liability in case of malicious
prosecution.
1. Prosecution by the defendant: The foremost requirement to establish the case of malicious
prosecution by the plaintiff is that the prosecution was initiated against the plaintiff as a result of
arbitrary proceedings by the defendant. The term ‘prosecution’ has not been aptly defined in the
Code of Criminal Procedure, 1974; however, with the help of various precedents set by the judicial
courts, we can infer the essence of the term and its scope. Contrary to the generic notion, the
prosecution is not limited to initiating proceedings against the plaintiff or a formal trial before a
court. In Mohamed Amin versus Jogendra Kumar Bannerji [(1947) 49 Bom LR 584], the Privy Council
laid down the test for contending such a prosecution. For the same, the council emphasised
the damage caused to the plaintiff as a result of proceedings, rather than ascertaining when a
proceeding took the form of prosecution. It was held that the plaintiff will have the burden to
prove, that despite the dismissal of the defendant’s complaint by the magistrate, the same did
resulted causing damage to him.
It is a commonly held principle that any disciplinary action by an authority cannot be regarded as
prosecution by a judicial authority; thus, it cannot be subjected to the suit of malicious prosecution.
Further, in the case of Khagendra Nath versus Jacob Chandra [1976 Assam LR 379], the court ruled
that prosecutors cannot be said to have begun at the stage where the complaint was made before
a competent (executive) authority.
2. Presence of malice, and the lack of reasonability or probability, in the plaintiff’s prosecution: This
requisite lays its emphasis on the intention of the defendant while instituting a suit for action
against the plaintiff, which must be determined on a factual and evidential basis, as stated in the
case of Jogendra Garababu versus Lingaraj Patra [AIR 1970 Ori 91: 1970 Cri LJ 819]. It is imperative
that the complaint made must lack the intent of bringing justice to the defendant, and that the
defendant must have acted out of malice, without any substance in the allegations. It must be
noted here that the term ‘malice’ is not limited to mere ill feelings or hatred towards a person,
but also covers any immoral/improper cause that can result in causing wrongful damage to the
plaintiff, such as to gain leverage. The same principle can be traced to the case of Bank of India
versus Lakshmimani Das [(2000) 3 SCC 640].
3. Termination of the prosecution in favour of plaintiff: The case of malicious prosecution can only
be pleaded in case of successful termination of the proceedings in favour of the plaintiff. It can be
either the plaintiff’s acquittal or suspension of any further proceedings against him. It must also be
noted that the termination of such proceedings against the plaintiff does not necessarily represent
his innocence, but merely states that he/she has not been convicted in lieu of the charges brought
against him/her. This position was stated in Gilchrist versus Gardner [54 NJ 37 (1969)].
There are two exceptions to the aforementioned requirement.
y When the plaintiff and the defendant have reached a settlement, resulting in the withdrawal of the
allegations made against the plaintiff
y A plea bargain, in criminal cases, cannot be termed as a termination in favour of the plaintiff.
Damages to be accrued by the plaintiff as a result of the wrongful prosecution: The last requirement
to fulfill all components of malicious prosecution is that the plaintiff must have accrued certain harm/

Law of Torts 23
 injury (damage) as a result of the prosecution, that terminated in his/her favour. This harm must be
foreseeable, and should not be extremely remote. The categorisation of this harm was first stated by
Chief Justice Holt in Savile versus Roberts [1795] ER 3039: (1795) 3 Salk 16: (1795) 91 ER 664 (B), which
the Calcutta High Court later opined in CM Agarwalla versus Halar Salt and Chemical Works [AIR 1977
Cal 356]. The categorisation goes as follows.
y Damages in respect of harm to the plaintiff’s reputation: If the suit has led to tainting of the plaintiff’s
reputation in the eyes of the right-thinking members of the society through unnecessary allegations,
the damages for the same can be demanded.
y Damages in respect of harm to the plaintiff’s body: When the proceedings have hampered the
plaintiff’s liberty or have led to fear of injury, the damages are recoverable.
y Damages in respect of harm to the plaintiff’s property: The charges borne by the plaintiff to fight a
suit for his acquittal are recoverable if the proceedings terminate in his favour and on the ground of
arbitrary complaint.

Difference between Malicious Prosecution and Abuse of Power

The distinction between prosecution inspired by malice and the act of abuse of power is of considerable
significance in ascertaining liability. This distinction was dealt with in West Bengal State Electricity
Board versus Dilip Kumar Ray [SCI Appeal (Civil) 5188 of 200], wherein the apex court held that the
former refers to instituting a process out of malice. In contrast, the latter refers to a legal process to
obtain one’s motive for a purpose other than the intended one.

Defences against Malicious Prosecution

The defences that can be pleaded in the suit of malicious prosecution are as follows.
1. The plaintiff is at fault: As stated supra, if the proceedings instituted against the plaintiff result in
conviction based on his/her being guilty of the charge levied, such a person loses the right to sue
the defendant. The only remedy the plaintiff would have is an appeal against the verdict.
2. When the defendant is in possession of some privilege: The privilege may be in the form of judicial
or statutory immunity.

Objective Type Questions

1. A tort is a special branch of law that originated (C) for damage caused independently of
in: their plan
(A) America (D) for damage caused by a stranger
(B) France Ans. (A)
The Common Law principle is that the liability of
(C) India
wrongdoers, under the law of torts, is joint and
(D) England
several, i.e., each is jointly and severally liable for
Ans. (D)
the whole damage.
The law of tort came to India through England.
3. The doctrine of vicarious liability is applied
A tort, in common law jurisdiction, is a civil wrong.
when there is a relationship between:
2. Joint tortfeasors may be held liable: (A) master and agent
(A) jointly and severally for the whole (B) servant and independent contractor
damage (C) master and servant
(B) for damage caused by a person employed (D) All of the above
by any of them Ans. (C)

24 Law of Torts
4. To constitute a tort: (C) for the recognition of human suffering
(A) there must be some act or omission on (D) as compensation for damages
the part of the defendant Ans. (B)
(B) the act must result in violation of the Nominal damages are provided in cases of injuria
legal right vested in the plaintiff sine damnum, in which the court recognises the
(C) there must be a legal duty on part of the violation of the rights of the plaintiff, but the
defendant amount of damages is nominal or low because no
(D) Both (A) and (B) actual loss has accrued to the plaintiff.
Ans. (D) 8. The definition of tort is contained in:
To constitute a tort, there must be some act or (A) the General Clauses Act, 1897
omission on the part of the defendant, and the (B) the Limitation Act, 1963
act must result in violation of a legal right vested (C) the Indian Contract Act, 1872
in the plaintiff. (D) the Indian Penal Code, 1860
5. A tort is a breach of duty, which is: Ans. (B)
(A) imposed by the parties According to Section 2(m) of the Limitation
(B) imposed by the law Act, 1963, ‘tort’ means a civil wrong that is not
(C) imposed by the penal law exclusively the breach of a contract or the breach
(D) imposed by the society of trust.
Ans. (B) 9. ‘Rule of Common Employment’ is an
A tort is a civil wrong that unfairly causes exception under the law of torts for:
someone else to suffer loss or harm, resulting (A) personal liability
in legal liability for the person who commits the (B) vicarious liability of the master for his
tortious act. servant
6. Where a person willfully and without (C) strict liability
any justification is dealing with the goods (D) absolute liability
in such a manner that another person, Ans. (B)
who is entitled to its immediate use and ‘Rule of Common Employment’ is an exception
possession of the same, is deprived of that, under the law of torts for vicarious liability of the
is known as: master for his servant.
(A) tort of conversion 10. The ‘Principle of respondeat superior’ under
(B) tort of detinue the law of torts is related to the tort of:
(C) the tort of trespass to goods (A) negligence
(D) tort of nuisance (B) nuisance
Ans. (A) (C) vicarious liability
Where a person willfully and without (D) strict liability
any justification is dealing with the goods in such Ans. (C)
a manner that another person, who is entitled to Respondeat superior is a doctrine that a party is
its immediate use and possession of the same, responsible for the acts of its agents.
is deprived of that, it is known as the tort of 11. Which of the following is a valid defence
conversion. against an action in tort?
Conversion is an intentional tort. (A) Mistake of fact
7. In the law of torts, nominal damages are (B) Act of God
awarded: (C) Minority
(A) as compensation for nominal injury (D) None of the above
(B) for the recognition of a legal right Ans. (B)

Law of Torts 25
 The defence of ‘Act of God’ is based on the tort law (B) An imputation that a certain person is a
principle that liability must be founded on a fault, liar
and that a person cannot be penalised where the (C) An imputation that a certain wrestler is a
fault is that of vis major, where all precautions womaniser
were taken and a casualty still occurred. (D) An imputation that a certain woman
12. In which of the following situations is slander player is of unchaste character
actionable per se? Ans. (D)
(A) An imputation that a certain person is a The slander is actionable per se, only on proof
habitual gambler of special damage, except in certain cases, like
words imputing unchastity or adultery to any
woman or girl.

Previous Years’ Questions

13. ‘Nuisance’ as a tort was defined as “unlawful (C) Ratanlal

interference with a person’s use or enjoyment (D) Winfield
of land, or some right over, or in connection Ans. (B)
with it” by: Salmond says: “It is not the law of tort but the
[28th Bihar Judicial Services (Pre) law of torts.”
Examination, 2012 (Law)] 16. The Pigeon Hole Theory was propounded by:
(A) Winfield
[30th Bihar Judicial Services (Pre)
(B) Salmond
Examination, 2018 (Law)]
(C) Pollock
(D) Underhill (A) Salmond
Ans. (A) (B) Winfield

14. “Tortious liability arises from the breach of (C) R. Pound

duty, primarily fixed by law.” Who said the (D) Blackstone
statement? Ans. (A)
[30th Bihar Judicial Services (Pre) The Pigeon Hole Theory by Salmond states that
Examination, 2018 (Law)] there is a definite number of torts, outside which
(A) Salmond the liability of tort does not arise.
(B) Winfield 17. Which of the following is an exception to the
(C) Frazer rule of strict liability?
(D) Underhill
[Bihar APO (Pre) Examination, 2011 (Law)]
Ans. (B)
(A) Vis major
According to PH Winfield, tortious liability arises
from a breach of a duty primarily fixed by law; this (B) Statutory authority
duty is towards persons generally and its breach (C) Volenti non fit injuria
is redressable by an action for unliquidated (D) All of the above
damages. Ans. (D)
15. “It is not the law of tort but the law of torts.” Act of God or vis major is an exception to the rule
It was said by: of strict liability. These are acts that are beyond
[Bihar APO (Pre) Examination, 2011 (Law)] human control and contemplation, caused due
to superior natural forces. In these cases, the
(A) Austin
principle of strict liability does not apply.
(B) Salmond

26 Law of Torts
18. The maxim res ipsa loquitur is a: (C) Smith versus Baker
[28th Bihar Judicial Services (Pre) (D) Fardon versus Harcourt-Rivington
Examination, 2012 (Law)] Ans. (B)
(A) rule of law Case Law: Davies versus Mann, 152 ER 588 (1842)
(B) rule of procedure It is an English case that contained the first
(C) rule of evidence formulation of the ‘last clear chance’, or the ‘last
(D) rule of negligence opportunity rule’ under negligence.
Ans. (C) 22. The rule of ‘strict liability’ as propounded in
Res ipsa loquitur is a Latin term, which means the case of Rylands versus Fletcher is not
‘the thing speaks for itself’. It is also a form of applicable:
circumstantial evidence enabling the plaintiff, in [Rajasthan Judicial Services (Pre)
certain cases, to establish the defendant’s likely Examination, 2013]
negligence. (A) when the damage is due to vis major
19. The rule of res ipsa loquitur is related to the (B) when the damage is due to the wrongful
tort of: act of a stranger
[Rajasthan Judicial Services (Pre) (C) when the damage is due to the plaintiff’s
Examination, 2013] own fault
(A) negligence (D) All of the above
(B) false imprisonment Ans. (D)
(C) defamation 23. The doctrine of res ipsa loquitur was applied
(D) malicious prosecution by the Supreme Court, in the case of:
Ans. (A) [Bihar APO (Pre) Examination, 2011 (Law)
Res ipsa loquitur is a Latin term, which means 28th Bihar Judicial Services (Pre)
‘the thing speaks for itself’. It is also the form of Examination, 2012 (Law)]
circumstantial evidence enabling the plaintiff, in
(A) Jasbir Kaur versus State of Punjab
certain cases, to establish the defendant’s likely
(B) Alka versus Union of India
negligence.
(C) Municipal Corporation of Delhi versus
20. Qui facit per alium facit per se, a maxim in Subhagwanti
the law of torts, is related to which tort? (D) Asharam versus Municipal Corporation of
[29th Bihar Judicial Services (Pre) Delhi
Examination, 2016 (Law)] Ans. (C)
(A) Capacity to sue Case Reference: Municipal Corporation of Delhi
(B) Negligence versus Subhagwanti, AIR 1966 SC 1750
(C) Vicarious liability Earlier, the High Court held that the principle of res
(D) Defamation ipsa loquitur applied to the case. The High Court
Ans. (C) considered that it was the duty of the Municipal
The maxim Qui facit per alium facit per se is a Committee to carry out periodical examination for
Latin term, which means ‘he who acts through the purpose of determining whether deterioration
another is deemed in law to do the act himself’. had taken place in the structure and whether
21. ‘The rule of the last opportunity’ was laid any precaution was necessary to strengthen the
down in: building.
[Rajasthan Judicial Services (Pre) The Supreme Court clarified that the principle of
Examination, 2011] res ipsa loquitur applies in this case, and that the
(A) Thomas versus Quartermaine High Court was right in applying the doctrine of
(B) Davies versus Mann res ipsa loquitor.

Law of Torts 27
 24. A music teacher committing sexual Gloucester Grammar School case is about
intercourse with a minor girl, having obtained Damnum sine injuria.
her consent on the pretext that the same is Damnum Sine Injuria is a Latin term, which means
required to improve her voice, was held guilty ‘damage suffered without legal injury’.
of rape in: 27. British Columbia Company versus Loach,
[28th Bihar Judicial Services (Pre) 1949 All ER, is a case which is related to the
Examination, 2012 (Law)] tort of:
(A) R versus Catherine [Bihar APO (Pre) Examination, 2011 (Law)]
(B) Ashby versus White (A) nuisance
(C) Donoghue versus Stevenson (B) false imprisonment
(D) R versus Williams (C) trespass
Ans. (D) (D) contributory negligence
Case Reference: R versus Williams, 1923 Ans. (D)
The defendant was a singing coach. He told one Case reference: British Columbia Company versus
of his pupils that he was performing an act to Loach [1949 All ER]
open her air passages to improve her singing. But The basic feature of contributory negligence is
he was having sexual intercourse with her. It was that both parties were negligent and that the
held that her consent was vitiated by fraud as to negligence of each of them was a contributory
the nature and quality of the act. cause of the accident. Contributory negligence
is invariably used as a defence. To succeed, the
25. Which of the following cases, under the law
defendant has to prove lack of reasonable care
of torts, is related with the principle of injuria
on the of the plaintiff, for his own safety, or that
sine damnum?
of his property. The matter, thus, reflects the duty
[Bihar APO (Pre) Examination, 2011 (Law)] imposed on road users by law. The test is that of
(A) Gloucester Grammar School case reasonable care.
(B) Merryweather versus Nixon case 28. Mogul Steamship Co versus McGregor, 1892
(C) Ashby versus White case AC 25, is a case that is related to the tort of:
(D) Rylands versus Fletcher case [Bihar APO (Pre) Examination, 2011 (Law)]
Ans. (C) (A) negligence
Case reference: Ashby versus White, 1703 (B) nuisance
This case concerns the right to vote, and the (C) malicious prosecution
misfeasance of a public officer. Lord Holt laid (D) conspiracy
down an important principle that the law makes Ans. (D)
a presumption of damage where there is injury; in Case reference: Mogul Steamship Co versus
the absence of any financial loss, it is sufficient McGregor, 1892 AC 25
to demonstrate that a right has been infringed. It is an English tort law case concerning the
26. Gloucester Grammar School case is about: economic tort of conspiracy to injure.
29. A person, who knowingly and without
[27th Bihar Judicial Services (Pre)
sufficient justification, induces another to
Examination, 2009 (Law)]
break a contract with a third person, whereby
(A) Damnum sine injuria
the third person suffers damage, is a tort. For
(B) Injuria sine damnum
the first time, it was established in which of
(C) Contributory negligence
the following cases?
(D) Strict liability
[30th Bihar Judicial Services (Pre)
Ans. (A)
Examination, 2018 (Law)]

28 Law of Torts
 (A) Ford versus Lindsey (A) Re Polemis and Furness, Withy & Co (1921)
(B) Lumley versus Gye (B) Overseas Tankship (UK) Ltd versus Morts
(C) Derry versus Peak Dock Engg Co Ltd, (1961)
(D) M.C. Manus versus Bonis (C) Donoghue versus Stevenson (1932)
Ans. (B) (D) Hughes versus Lord Advocate (1963)
Case reference: Lumley versus Gye, 1853 Ans. (B)
Case reference: Overseas Tankship (UK) Ltd versus
A person, who knowingly and without sufficient
Morts Dock Engg Co. Ltd (1961)
justification, induces another to break a contract
‘Reasonable foresight as a test to determine
with a third person, whereby the third person
remoteness of damage’ was laid down in this
suffers damage, is a tort.
case.
30. The rule regarding the principle of negligence
It is also known as the Wagon Mound case.
was laid down in the leading case of:
It was held that a party can be held liable only for
[29th Bihar Judicial Services (Pre)
loss that was reasonably foreseeable.
Examination, 2016 (Law)]
32. Which of the following cases is related with
(A) Glasgow Corp versus Muir
the concept of joint tortfeasors?
(B) Donoghue versus Stevenson
[Bihar APO (Pre) Examination, 2011 (Law)]
(C) Winterbottom versus Wright
(A) Rylands versus Fletcher case
(D) Ishwari Devi versus Union of India
(B) Wilkinson versus Downton case
Ans. (B) (C) Merryweather versus Nixon case
Case reference: Donoghue versus Stevenson, (D) Dulieu versus White case
(1932 UKHL 100) Ans. (C)
This case laid the foundation of the modern law Case reference: Merryweather versus Nixon case,
of negligence, establishing the general principle 1799
of the duty of care. The case was decided by the King’s Bench in 1799.
31. ‘Reasonable foresight as a test to determine In this case, various aspects regarding the joint
remoteness of damage’ was laid down in: tortfeasors, modification of law with respect to
[Bihar APO (Pre) Examination, 2013 (Law)] joint tortfeasors, and applicability of the law of
torts had been discussed.

Recent and Relevant Cases

Ruba Ahmed versus Hansal Mehta, 2022 LiveLaw (Del) 969
Point(s) to Note: Privacy; Common law; law of Torts; Right to privacy
The Right to Privacy Is a Right under Tort Law
y The Right to Privacy is a right exalted to the level of basic human right violation, which gives a right
to seek injunctive remedy under the law of torts. The Right to Privacy, being a basic human right, is
entitled to be protected under Common Law by way of injunctive relief.
y The court in R Rajagopal versus State of Tamil Nadu [AIR 1995 SC 264], recognised the Right to Privacy
to be both the Fundamental Right and a right under Common Law/Tort Law.
y The court in Melepurath Sankunni Ezhuthassan versus Thekittil Gopalankutty Nair [(1986) 1 SCC 118],
has observed that under the Common Law, the general rule was that the death of either party
extinguishes the cause of action in tort by one against the other. This was expressed by the maxim
acto persona lis moritur cum persona (a personal action dies with the person). Further, it was held

Law of Torts 29
 that in a suit for defamation, the cause of action does not survive in favour of the legal heirs, and it
is a personal right, the suit has to necessarily fail.
y The court in Cervantez versus JC Penney Co, (1979) 24 Cal. 3d. 579 (593), summarised the tort of
intentional infliction of emotional distress, as:
⚪ The extreme and outrageous conduct by the defendant, with the intention of causing, or reckless
disregard of the probability of causing, emotional distress
⚪ the plaintiff’s suffering severe or extreme emotional distress
⚪ the actual and proximate causation of emotional distress by the defendant’s outrageous conduct
—————
Sanjay Gupta versus State of Uttar Pradesh through Its Chief Secretary [2022 LiveLaw (SC) 368]
Point to Note: Res ipsa loquitur
Res Ipsa Loquitor
y The general purport of the words res ipsa loquitur is that the accident ‘speaks for itself’, or tells
its own story. There are cases in which the accident speaks for itself so that it is sufficient for the
plaintiff to prove the accident, and nothing more. It will, then, be for the defendant to establish that
the accident happened due to some other cause than his own negligence.
y The maxim res ipsa loquitor is resorted to when an accident is shown to have occurred, and the
cause of the accident is primarily within the knowledge of the defendant. The mere fact that the
cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if the
proper inference to be drawn from the circumstances which are known, is that it was caused by the
negligence of the defendant.
y Salmond in the Law of Torts (15th Edition) at p. 306 states: “The maxim res ipsa loquitur applies
whenever it is so improbable that such an accident would have happened without the negligence
of the defendant that a reasonable jury could find without further evidence that it was so caused.”
y Where the plaintiff can prove the accident, but cannot prove how it happened, to establish negligence
on the part of the defendant, such hardship is sought to be avoided by applying the principle of res
ipsa loquitor.
—————
Divisional Manager, TATA AIG General Insurance Company Limited versus AC Jagadeesann [2022
LiveLaw (Mad) 114]
Point(s) to Note: No Fault Liability; Contributory Negligence; Torts
Concept of ‘No Fault Liability’
y To understand the principle, it is necessary to briefly trace the origin of the codification of rules for
claiming compensation for the death or bodily injury to a person. The concept has its genesis in the
law of torts.
y The principle of ‘No Fault Liability’ is to be introduced in cases of claims arising out of road accidents.
y The principle of ‘No Fault Liability’, which traces its origin to tortious liability, has been incorporated
into the Act, primarily to cover innocent victims, who fall prey to the rash and negligent use of a
motor vehicle, particularly, hit and run accidents, and where the person concerned has sustained an
injury, or has been killed for ‘no fault’ of his.
y It is clear that a person claiming compensation under the ‘No Fault Liability’ has to first establish a
third party involvement in the mishap.

30 Law of Torts
y Who can claim compensation under the ‘No Fault Liability’? As the term suggests, it is an accident
that has occurred not on account of the fault of the victim, but the fault of another, and the victim
is not bound to prove the other’s fault. If the legislative intent was to provide compensation to the
person, who was himself instrumental in the accident, the principle of ‘Contributory Negligence’
would be rendered otiose.
—————
Babuji Rawji Shah versus S Hussain Zaidi [2022 LiveLaw (SC) 213]
Point(s) to Note: Defamation; Actionable tort; Reputation; Legal duty; Legal right
Defamation: Wrongful Act
y For an actionable tort, there has to be a wrongful act, damage, loss, inconvenience, or annoyance
caused to another by reason of the wrongful act. Annoyance, inconvenience, or loss alone does not
give a right to legal action. The question of what constitutes a nuisance is a question that the court
has to determine. The court has first to ascertain ‘what is the legal duty of which there has been a
breach?’ The right to injunction depends on the legal right, and this must be determined before any
relief can be granted by the court.
y Defamation: A right in tort may arise when any imputation concerning a deceased person harms the
reputation of that person, if living, or is intended to be hurtful to the feelings of his family members
or other near relatives.
y For maintaining an action in the tort of defamation, the applicant for interim relief would have to
satisfy the court, that:
⚪ the applicant was a member of the family, or a near relative of the person defamed
⚪ what was stated about the deceased family member/relatives was untrue
⚪ what was stated, would lower the character and reputation of the deceased. The mere hurting
of sensibility is not defamation if the person said to be defamed is not lowered in character, or
credit in the eyes of others
—————
State of UP versus McDowell and Company Limited [2022 LIVELAW (SC) 13]
Point(s) to Note: Negligence; Act of God; Liability
Negligence and Act of God
y ‘Negligence’ is one such class of ‘wrongs’ that leads to liability. The fundamental jurisprudential
principle of ‘liability’ is well-defined in Salmond on Jurisprudence [12th Edition, p. 349] thus: “Liability
or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the
wrong. Liability arises from breach of duty, which may be in the form of an act or omission.” We
need not delve, for the present purpose, into the classification of liability into civil or criminal, and
remedial or penal, and various other jurisprudential features of liability. In the present case, we are
primarily concerned with the question of liability arising out of negligence.
y Negligence: “Failure to use the care that a reasonable and prudent person would have used under
the same or similar circumstances.” Negligence in law signifies a coming short of the performance
of duty. Failure to use the care that a reasonably prudent and careful person would use under
similar circumstances. Negligence is “the absence of proper care, caution, and diligence of such care,
caution and diligence, as under the circumstances reasonable and ordinary prudence would require
to be exercised.”

Law of Torts 31
 y Act of God: “All natural agencies, as opposed to human activities, constitute acts of God, and not
merely those which attain an extraordinary degree of violence or are of a very unusual occurrence.
The distinction is one of a kind and not one of a degree. The violence or rarity of the event is relevant
only in considering whether it could or could not have been prevented by reasonable care: if it could
not, then it is an act of God which will relieve from liability, howsoever trivial or common its cause
may have been. If this is correct, then the unpredictable nature of the occurrence will go only to
show that the act of God in question was one which the defendant was under no duty to foresee or
provide against. It is only in such a case that the act of God will provide a defence.”
y When nothing of any external natural force had been in operation in a violent or sudden manner, the
event of the fire in question could be preferable to anything, but an act of God, in legal parlance.
y The expression ‘act of God’ signifies the operation of natural forces, free from human intervention,
such as lightning, storms, etc. It may include such unexpected occurrences of nature as severe
gales, snowstorms, hurricanes, cyclones, tidal waves, and the like. But every unexpected wind and
storm does not operate as an excuse from liability, if there is a reasonable possibility of anticipating
their happening. An act of God provides no excuse unless it is so unexpected that no reasonable
human foresight could be presumed to anticipate the occurrence, having regard to the conditions of
time and place known to be prevailing. For instance, whereby the experience of a number of years,
preventive action can be taken, Lord Westbury defined the act of God (damnum fatale in Scot Laws)
as an occurrence which no human foresight can provide against, and of which human prudence is
not bound to recognise the possibility. This appears to be the nearest approach to the true meaning
of the act of God. Lord Blancaburgh spoke of it as “an irresistible and unsearchable providence
nullifying our human effort”.
—————

Practice Questions

1. Distinguish between assault and battery. 6. What are the essential constitutes of
[Bihar and Jharkhand Judicial Services negligence under torts? [Delhi Judicial
Examination, 1991, and Uttar Pradesh Judicial Services Examination, 2008]
Services Examination, 2016] 7. Write a short note on injuria sine damnum.
2. What are the rules laid down in Rylands [Delhi Judicial Services Examination, 2005]
versus Fletcher (1868) LR 3 HL 330? 8. Write a short note on the lack of reasonable
3. “A statement made in the performance of and probable cause in a malicious
duty is privileged.” Examine such a statement prosecution. [Jharkhand Judicial Services
referring to the tort of defamation. [Uttar Examination, 2001]
Pradesh Judicial Services Examination, 2015] 9. Discuss the rule of strict liability. What
4. There is a distinction between tort and crime, are the exceptions to the said rule? [Delhi
but there are various wrongs that find place Judicial Services Examination, 2000]
both under the criminal law and the law of 10. What are the essential conditions for
torts. [Delhi Judicial Services Examination, applying the rule of ‘strict liability’? [Uttar
2011] Pradesh Judicial Services Examination, 1997]
5. Explain the difference between malice in 11. What grounds can be taken as a defence
law and malice in fact. [Rajasthan Judicial in a suit for ‘strict liability’? [Uttar Pradesh
Services Examination, 2011] Judicial Services Examination, 1997]

32 Law of Torts
 Solved Questions

Q. Discuss the Rule of Strict Liability. What are the exceptions to the said rule?
What are the essential conditions for the application of the rule of ‘Strict Liability’?
What grounds can be taken as defence in a suit for ‘Strict Liability’?

Ans. Rule of Strict Liability

English courts developed the rule of strict liability in Rylands versus Fletcher (1868 Law Reports (3)
HL 330). It was indeed a judicial development of the liability in keeping with the growth of society and
the necessity to safeguard the interests of a common man against hazardous activities carried on by
others on their premises, even though innocently. By conservative standards, it could not be termed as
negligence, as damage arose, not by violating a duty.
The rule of strict liability states that if there is a non-natural use of the land that causes mischief or
harm to anyone, the person using the land as such would be held liable for such harm, in terms of
payment of compensation/damages.
Justice Blackburn, in Rylands versus Fletcher case, observed that “The Rule of Law is that the person
who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief
if it escapes, must keep it at his peril, and if he does so, he is prima facie answerable for all damage
which is the natural consequence of its escape.”
What exactly, then, is the nature of the strict liability which is, on one hand, a departure from the
traditional ‘fault liability’ principle insofar as it does not require the plaintiff to plead and prove the
negligence of the defendant; and on the other hand, a departure from the ‘no fault liability’ principle
insofar as it permits the defendant to plead and prove negligence on the part of the plaintiff, resulting
in the accident, to dismiss the claim.

Rule of strict liability as explained in ‘Law of Torts’ by Ratanlal and Dhirajlal, 25th Edition
Many activities are so hazardous that they constitute a constant danger to the person and property of
others. The law may deal with them in three ways. It may prohibit them altogether. It may allow them
to be carried on for the sake of their social utility, but only in accordance with statutory provisions
laying down safety measures, and providing for sanctions for non-compliance. It may allow them to
be tolerated on the condition that they pay their way, regardless of any fault. The last is the doctrine
of strict liability. The undertakers of the activities have to compensate for the damage caused,
irrespective of any carelessness on their part. The basis of liability is the foreseeable risk inherent in
the very nature of the activities. In this aspect, the principle of strict liability resembles negligence,
which is also based on foreseeable harm. But the difference lies in that the concept of negligence
comprehends that the foreseeable harm could be avoided by taking reasonable precautions, and so, if
the defendant did all that which could be done for avoiding the harm, he cannot be held liable, except
possibly in those cases where he should have closed down the undertaking. Such a consideration is
not relevant in cases of strict liability, where the defendant is held liable, irrespective of whether he
could have avoided the particular harm by taking precautions. The rationale behind strict liability is
that the activities coming within its fold, are those entailing extraordinary risk to others, either in the
seriousness, or the frequency of the harm threatened. Permission to conduct such an activity is, in
effect, made conditional on its absorbing the cost of accidents it causes, as an appropriate item of its
overhead.

Law of Torts 33
 Exceptions to the Rule of Strict Liability
Seven defences have been recognised in the Common Law against action brought on the strength of
the rule of strict liability in Rylands versus Fletcher.
y Consent of the plaintiff, i.e., volenti non fit injuria
y Common benefit, i.e., where the source of the danger is maintained for the common benefit of the
plaintiff and the defendant, the defendant is not liable for its escape
y Act of a stranger, i.e., if the unforeseeable act of a stranger caused the escape, the rule does not
apply
y Exercise of statutory authority, i.e., the rule will stand excluded either when the act was done under
a statutory duty or when a statute provides otherwise
y Act of God or vis major, i.e., circumstances which no human foresight can provide against, and of
which human prudence is not bound to recognise the possibility
y Default of the plaintiff, i.e., if the damage is caused solely by the act or default of the plaintiff
himself, the rule will not apply
y The remoteness of consequences, i.e., the rule cannot be applied ad infinitum, because even
according to the formulation of the rule made by Justice Blackburn, the defendant is answerable
only for the damage, which is the natural consequence of its escape

However, in the case of MC Mehta (1987), the court has gone beyond the rule of strict liability. “Where
an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on anyone
on account of the accident in the operation of such activity, the enterprise is strictly and absolutely
liable to compensate those who are affected by the accident, such liability is not subject to any of the
exceptions to the principle of strict liability under the rule in Rylands versus Fletcher.”

34 Law of Torts