Law Of Torts

TOPIC- Introduction to Torts

Introduction and Principles of Liability in Tort

Manvi Singh
Assistant Professor

DME Law School

m.singh@dme.ac.in
 LAW OF TORTS AND
CONSUMER PROTECTION
Introduction and Principles of
Liability in Tort

Unit-I
Ques-: “Tort is a civil wrong for which the remedy is common law
action for unliquidated damages and which is not exclusively the
breach of contract or the breach of trust or other merely
equitable obligation” (Salmond) Make a critical appraisal of the
above statement and make a distinction between Tort and Quasi
Contract and Tort and Breach of Trust.
 Topic 1.1
Definition of Tort

Textbook
• R.K. Bangia, Law of Torts including Compensation under the Motor Vehicles
Act and Consumer Protection Laws, Allahabad Law Agency, 2013
. Chapter 1: Nature of Tort

Reference
• W.V.H. Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, 2010.
Chapter 1: Nature and Functions of the Law of Tort
Meaning
• The term ‘Tort’ is derived from Latin word “Tortum”
• French Equivalent of English word – ‘Wrong’
• Roman Term – ‘Delict’

Tort is a conduct which is twisted or crooked and not

straight.
 Definition of Tort
Salmond
“Tort is a civil wrong for which the remedy is common law action for unliquidated
damages and which is not exclusively the breach of contract or the breach of trust
or other merely equitable obligation.”

Winfeild
“Tortious Liability arises from breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is redressable by an action for
unliquidated damages.”
Elements of Winfeild’s Definition

• Duty is primarily fixed by law

• Duty is towards persons generally

• Action for unliquidated damages

Clark and Lindsell: “Tort is a wrong independent of contract
for which the appropriate remedy is a common law action.”

Indian Law
Section 2(m) of Limitation Act, 1963: “Tort means a civil
wrong which is not exclusively a breach of contract or breach
of trust.”
 Topic 1.2
Development of Law of Torts

Textbook
• R.K. Bangia, Law of Torts including Compensation under the Motor Vehicles
Act and Consumer Protection Laws, Allahabad Law Agency, 2013
. Chapter 1: Nature of Tort

Reference
• W.V.H. Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, 2010.
Chapter 1: Nature and Functions of the Law of Tort
Development in India

• Narrower conception in Hindu and Muslim Law in contrast to

the English Law.

• It was made suitable according to Indian circumstances

according to the principles of justice, equity and good
conscience. The application of the law of tort is applied
selectively in Indian courts keeping it suitable for the socio-
legal circumstances of the land.

• Origin in India linked with establishment of British Courts in

India, as it is based on the principle of common law, which is
mainly the English law of torts.
Scope of Torts
M.C. Mehta v. Union of India (1987)1 SCC 395
Bhagwati, C. J., observed:
“We have to evolve new principles and lay down new norms which will adequately
deal with new problems which arise in a highly industrialized economy. We are
certainly prepared to receive light from whatever source it comes but we have to
build our own jurisprudence.”

Jai Laxmi Salt Works (P) Ltd. v. State of Gujarat 1994 (3) SCC 492
Sahai, J., observed:
“Truly speaking the entire law of torts is founded and structured on morality.
Therefore, it would be primitive to close strictly or close finally the ever expanding
and growing horizon of tortuous liability. Even for social development, orderly
growth of the society and cultural refinement the liberal approach to tortious
liability by court would be conducive.”
 Topic 1.3
Distinctions between Law of Tort, Contract, Quasi Contract and Crime

Textbook
• R.K. Bangia, Law of Torts including Compensation under the Motor Vehicles
Act and Consumer Protection Laws, Allahabad Law Agency, 2013
. Chapter 1: Nature of Tort

Reference
• W.V.H. Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, 2010.
Chapter 1: Nature and Functions of the Law of Tort
Tort Contract
• It is violation of rights in It is violation of rights in
rem (available against the personam (available against a
whole world) particular person)

• Duties are fixed by law

Duties arise due to
agreement
• Question of privity is
irrelevant
Question of privity is
relevant (doctrine of contract
• Intention is sometimes
law)
taken into consideration

In breach of contract
intention is of no relevance
 Tort Crime
• It is infringement of private It is infringement of public
right right

• Unliquidated Damages are Punishment is given.

awarded
Action is instituted by the
• Action is instituted by the State, proceedings take place
plaintiff, proceedings take in a criminal court.
place in a civil court.
Public rights and duties are
• Rights of Individual are violated which affects the
violated whole community.

• The person who commits a Person committing a crime is

tort is known as ‘Tortfeasor’ known as an ‘Offender’
 Tort Quasi Contract
• Duty is towards persons Duty is towards definite
generally persons

• Damages are unliquidated Damages are liquidated

• Claim for damages arise Claim for damages arise out of

out of breach of legal right breach of quasi contract
The Question is: 1) Is it the Law of Tort, i.e., Is every wrongful act, for which there is no
justification or excuse to be treated as a tort?
2) Is it Law of Torts, consisting only of a number of specific wrongs beyond which the
liability under this branch of law cannot arise?

• Law of Tort(s)- Salmond • Law of Tort- Winfield

• There is Law of torts, i.e. there • There is law of tort only, all
was liability only for certain
injuries done by another person is
specific torts & unless the damage
a tort unless there be some
suffered could be brought under a
justification recognized by law.
recognized head of liability there
was no remedy. • This theory enables the courts to
create new torts.
• The courts cannot create new torts.
• There is one category of tort, but
• There are a number of specific
no torts.
wrongs (Listed).
• Where there is no justification or
• The liability cannot arise beyond
excuse to be treated then there is a
the number of specific wrongs.
tort.
• This theory is known as, ‘Pigeon-
• This theory is known as broader
Hole’ Theory.
theory.
 PIGEON-HOLE THEORY OF SALMOND
 Law of Tort(s)- There was liability only for certain specific tort and unless the
damage suffered could be brought under a recognized head of liability there was no
remedy. There is no general principle of liability & if the plaintiff can place his
wrong in any one of the pigeon holes, each containing a labeled tort, he will
succeed.
 If there is no pigeon hole in which the plaintiff’s case could fit, the defendant has
committed no tort. A separate hole has to be constructed for a new pigeon.
 There is no single and general liability, there will be no single general remedy,
certain principles should be farmed under tortious liability, the plaintiff/injured has
to select the appropriate principle to meet the justice.
 Salmond’s Reasoning – “Just as the criminal law consists of a body of rules
establishing specific offenses, law of torts should consist a body of rules
establishing specific injuries. Neither in one case or the another is there a general
principle of liability. Whether I am prosecuted for an alleged offense 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.”
 Topic 1.4
Constituents of Tort

Textbook
• R.K. Bangia, Law of Torts including Compensation under the Motor Vehicles
Act and Consumer Protection Laws, Allahabad Law Agency, 2013
. Chapter 1: Nature of Tort

Reference
• W.V.H. Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, 2010.
Chapter 1: Nature and Functions of the Law of Tort
 Constituents of Tort

• Wrongful Act or Omission

• Legal Damage

• Legal Remedy
Wrongful Act or Omission
• Acts (Commission): These are positive actions that cause harm. For example, if
someone hits another person, that's a wrongful act (commission).
• Omissions (Failure to Act): These involve not doing something that a reasonable
person should do, resulting in harm. It's the failure to take necessary action when
required.
Key Element: Duty of Care:
• One crucial concept is the "duty of care." It means that individuals have a legal
obligation to avoid causing harm to others. This duty can arise in various situations,
such as in the workplace, on the roads, or in providing services.
Landmark Judgements
• Donoghue v. Stevenson (1932): Imagine you buy a drink, and it makes you sick
because it contains something unexpected, like a snail. The court ruled that
manufacturers have a duty to consumers to ensure their products are safe.
• Rylands v. Fletcher (1868): If you have something on your property that could
cause harm if it escapes, you might be held strictly liable. For instance, if your dam
causes a flood downstream, you could be responsible.
• Scenario:
• Fletcher, the defendant, owned a mill and hired independent
contractors to build a reservoir on his land. Unknown to Fletcher, the
contractors' activities revealed old mining shafts beneath the land.
When the reservoir was filled, it caused water to flood the old shafts,
subsequently damaging the plaintiff's coal mines.
• Legal Significance and Key Elements:
1. Strict Liability:
The court established the concept of strict liability, meaning that a person
can be held liable for harm caused by certain activities, regardless of
their level of care or negligence.
2. Escape of Dangerous Things:
Liability under Rylands v. Fletcher arises when there is an "escape" of
something dangerous from one's land. The idea is that if you bring
something onto your land that could be harmful if it escapes, you are
responsible for preventing such escapes.
Application to Wrongful Acts and Omissions:
• Wrongful Act (Commission):
• In Rylands v. Fletcher, the wrongful act was the construction of the reservoir. Even
though the defendants might not have been negligent, they were held strictly liable
because they introduced a potentially dangerous element (water in the reservoir)
onto their land, and it escaped causing harm.
• Omission (Failure to Act):
• The case primarily deals with the consequences of an affirmative act (building the
reservoir) rather than a failure to act. However, it emphasizes the legal responsibility
of landowners to prevent the escape of dangerous things, which can be seen as an
obligation to act responsibly.
• Key Principles Established:
1. Strict Liability for Dangerous Activities:
The case established that individuals engaged in certain dangerous activities on their
land are strictly liable for the harm caused by the escape of those activities.
2. No Requirement of Negligence:
Unlike negligence cases, where the plaintiff must prove the defendant's failure to meet
a standard of care, strict liability under Rylands v. Fletcher does not require proof of
negligence. The focus is on the escape of something dangerous.
LEGAL DAMAGE: Legal damage, In context of torts, refers to Harm or Injury suffered
by the plaintiff that is recognized and compensable under the law.
Types of Legal Damage:
• Physical Injury: Harm to the person's body, such as broken bones, bruises, or any tangible physical
harm.
• Property Damage: Harm to or loss of property, including damage to buildings, vehicles, or personal
belongings.
• Economic Loss: Financial harm, such as loss of income, medical expenses, or damage to one's
business.
Causation in Legal Damage:
• To establish legal damage, there must be a direct link (causal connection) between the defendant's
wrongful act or omission and the harm suffered by the plaintiff.
Landmark Judgements
• Donoghue v. Stevenson (1932):
Beyond physical injuries, this case is also relevant to legal damage concerning harm caused by the
consumption of a defective product. It established that harm need not be physical; it can also include
mental distress or emotional harm.
Special Consideration: Nervous Shock Cases:
• McLoughlin v. O'Brian (1982): This case recognized the right to claim damages for nervous
shock resulting from witnessing a close family member's serious injury. It expanded the scope
of legal damage to include emotional distress in certain circumstances.
INJURIA SINE DAMNUM:
• Injuria: It refers to a legal injury or harm suffered by an individual due to the
violation of a legal right.
• Damnum: This term refers to actual damage or loss suffered by the person.
• Translated from Latin, it means "injury without damage." This legal principle
recognizes that a person can seek legal remedies even if there is no measurable or
tangible loss, as long as there has been a violation of a legal right.
In a claim based on injuria sine damnum, the focus is on the violation of a legal right
rather than the actual loss or damage suffered. This is a departure from the general
principle that there must be both a legal injury (injuria) and actual loss (damnum) to seek
legal remedies.
• All that needs to be proven is that plaintiff’s legal right has been violated.
Eg: Imagine you own a piece of land, and your neighbour starts playing loud music late
at night, disturbing your peace. If there's no measurable damage to your property
(damnum), but your right to enjoy a quiet environment is violated, you might still have a
valid claim based on injuria sine damnum. Injuria & Infringement of Pvt. Legal right
resulting from a breach of legal duty is an indispensable element in constituting a tort.
Landmark Judgement
ASHBY V. WHITE (1703)- In this historic case, Mr. Ashby was denied his legal right to
vote by Mr. White, a constable. Even though Ashby didn't suffer any measurable damage,
the court held that he could still seek damages because his legal right to vote had been
unlawfully interfered with.
 LEGAL REMEDY Ubi jus ibi remedium (where there is a
right there is a remedy)

• The act complained of must give rise to a legal remedy, i.e. there must be
some legal remedy against a wrongful act. All torts are civil wrongs but
not all civil injuries are torts.
• The essential remedy for a tort is an action for damages but there are other
remedies also for e.g. Injunction maybe obtained in addition to damages
in some cases. It is not at all condition that only one remedy be given for
one tort.

Formula of Tort:
Wrongful act or Omission + Legal Injury +Legal Damage = Torts.
 Damnum sine injuria

• Damnum Sine Injuria refers to a situation where a person suffers harm or

loss without any accompanying infringement of a legal private right in
rem.
• Mere damage or loss, without a corresponding legal injury, does not give
rise to a cause of action in tort. Thus no action lies for mere damage or
loss, however substantial caused by an act which does not infringe some
legal right of the plaintiff.
• Acc. to Salmond “ There are many acts which are though harmful but are
not wrongful and give no right of action to him who suffers their effects.
• Exercise of legal right by one person resulted in damage to the other =,
without the violation of his right.
Elements of Damnum Sine Injuria:
• Damnum (damage): The plaintiff must suffer actual harm or loss.
• Sine (without): The harm must not be accompanied by injuria, i.e., a violation of a
legal right.
• Example 1: A landowner sets up a shop that diverts
customers from a neighbouring shop. The neighbouring
shop owner suffers a loss, but unless there's a breach of a
legal right (like a contractual agreement or property right), it
may be damnum sine injuria.
• Example 2: A person starts a competing business, leading to
a decrease in profits for an existing business. Again, unless
there's a violation of a legal right (e.g., unfair competition or
infringement of intellectual property), it might be damnum
sine injuria.
 Landmark Judgements.
• Ashby v. White (1703): In this case, the court held that even if a person's
legal right to vote was denied, and there was no actual damage suffered, the
individual could still claim damages because there was an injuria (violation
of a legal right).
• Gloucester Grammar School Case (1410): Often cited as one of the
earliest cases dealing with damnum sine injuria, this case emphasized that
if someone sets up a rival school, causing a loss to an existing school, it is
not actionable unless there's a violation of a legal right.
The judge in the said case observed that “If I have a mill and my neighbour
builds another mill whereby the profit of my mill is diminished, I shall have
no action against him although I am damaged, but if a miller disturbs the flow
of water to my mill, or does any nuisance of the like sort, I shall have such
action as the law gives.”
• Electrochrome Ltd. V. Welsh Plastic Ltd. (1968)
• Action v. Blunell
• Chesmore v. Richards
• Cope v. Sharpe
• Ushaben v. Bhagyalaxmi Shiksha Mandir (1978)
• Town Area Committee v. Prabhu Dayal (1975)
• Bhim Singh v. State of J&K
 Justification in tort (Defenses against tortious liability)
Under certain conditions an act ceases to be wrongful, although in absence of those
conditions the same act would amount to be a wrong. Under such conditions the act
is said to be justified or excused. These conditions which excuse or justify an act
which would, otherwise, have been a tort may be divided into two categories. First,
those conditions which excuse or justify some specific tort but do not excuse or
justify torts generally. for example truth and fair comment are defences available for
the tort of defamation only. Second, those conditions which are applicable to all
torts equally. for example, defence of consent can excuse any tort. Thus, the second
category covers those "rules of immunity which limit the rules of liability" in
general and are called general exceptions.
A ‘defence’ is a ground on which the defendant seeks to avoid or reduce his liability.
Defences in cases of torts may be -:

1) General defences, or
2) Special defences

‘General defences’ are those defences which do not depend upon the nature of tort.
They are available in all types of torts.
‘Special defences’ are those defences which depend upon the nature of the tort. They
are available for that tort only.
• General Defenses
 Consent or leave or License- Volenti nonfit Injuria
 Act of God
 Necessity
 Inevitable Accident
 Private Defense
 Plaintiff the Wrongdoer
 Volenti Non Fit Injuria

• Means- ‘ voluntarily suffered injury is not fit for action’. Volenti non fit

injuria is a defence in tort law that asserts that a person who knowingly and

willingly accepts a risk cannot later claim compensation for any harm

suffered as a result of that risk.

Two essential ingredients:-

The Plaintiff had the knowledge of risk

The Plaintiff with his free consent , voluntarily took the risk of harm
• Dr. Laxman Balakrishnan v Trimbak Bapu- The SC held
that if a doctor does not apply due care during the operation, he
will be liable even after the patient’s consent for suffering loss
during the operation. In this case the patient dies because
proper primary care was not taken while administering the
anaesthesia.
• Haynes v. Harwood (1935): This case involved a plaintiff who
was injured while trying to help control a runaway horse-drawn
carriage. The court held that since the plaintiff voluntarily took
on the task, knowing the risks involved, the defence of volenti
non fit injuria applied, and the defendant was not liable.
• Titchener v. British Railways Board (1983): A railway
employee, despite knowing the risks of injury, attempted to
move a heavy trolley and was injured. The court applied the
volenti non fit injuria defence, emphasizing that the employee
had voluntarily accepted the risk by attempting to move the
trolley.
 Knowledge of Risk
• Hall v Brooklands Auto-Racing Club (1932) All ER 208

the plaintiff was a spectator of a car racing event and the track on which the race was

going on belonged to the defendant. During the race, two cars collided and out of

which one was thrown among the people who were watching the race. The plaintiff

was injured. The court held that the plaintiff knowingly undertook the risk of watching

the race. It is a type of injury which could be foreseen by anyone watching the event.

The defendant was not liable in this case.

• Woolridge v Sumner (1963) 2 QB 43

plaintiff was taking some pictures standing at the boundary of the arena. The

defendant’s horse galloped at the plaintiff due to which he got frightened and fell into

the horse’s course and was seriously injured. The defendants were not liable in this

case since they had taken due care and precautions.

Free Consent
• It should be voluntary. Mere knowledge does not imply consent The defence
may not apply in cases where consent is obtained through coercion, fraud, or
misrepresentation.
• Where the plaintiff took the risk without having the full knowledge of the
faulty conditions, he cannot be prevented from recovering the damages White
v. Blackmore 1972- Plaintiff’s husband bought tickets to watch a car race with
his family, during the race a car got caught in the safety ropes and the plaintiff
was catapulted 20 ft. and died as a result. It was held that they would be paid
damages as the deceased did not have full knowledge of the risks & was
running from the faulty lay out, he did not willingly accept or gave consent to
the risk.
• Bowater v Rawley Rigis Corporation (1944) KB 476
Did the defence of volenti non fit injuria apply where an employee is ordered to
take action which he knows is dangerous? The Court of Appeal held that the
employer was negligent and that the defence of volenti non fit injuria did not
apply. The defence of volenti non fit injuria will not normally apply to actions
taken by an employee which constitute his normal work duty, particularly where
he is ordered to take the risk. This is because the employee has not truly
consented to take on the risk.
• Smith v Baker (1891) AC 325
Act to which consent is given should not be illegal in itself or against public
Limitations or Exceptions

There are 2 exceptions to the rule of volenti nonfit injuria.

1. Employment Relations - An employee who complained of unsafe
practice, but nevertheless continued to work could not truly be said to have
voluntarily agreed to waive their legal rights .
• Smith v. Charles Baker & Co. The plaintiff was employed to hold a drill in
position whilst two other workers took it in turns to hit the drill with a
hammer. Next to where he was working another set of workers were engaged
in taking out stones and putting them into a steam crane which swung over
the place where the Claimant was working. The Claimant was injured when a
stone fell out of the crane and struck him on the head. The Defendant raised
the defence of volenti non fit injuria in that the Claimant knew it was a
dangerous practice and had complained that it was dangerous but nevertheless
continued. It was held that though the Claimant might have been aware of the
danger of the job, but had not consented to the lack of care. He was therefore
entitled to recover damages.
• 2. Rescue Cases- Doctrine of assumption of risk does not apply where plaintiff
has under ran exigency caused by defendant’s wrongful misconduct, consciously and
deliberately, faced a risk, even of death to rescue another from imminent danger of
personal injury or death, the defence of leave and licence is not applicable to the
plaintiff, whether the person endangered was one to whom he owed a duty of
protection as a member of his family, or was a mere stranger to whom he owed no
such duty.
• For reasons of policy, the courts are reluctant to criticise the behaviour of rescuers. A
rescuer would not be considered if:
• He was acting to rescue persons or property endangered by the defendant’s
negligence;
• He was acting under a compelling legal, social or moral duty; and
• His conduct in all circumstances was reasonable and a natural consequence of the
defendant’s negligence.
• Haynes v. Harwood, The defendant negligently left his horses unattended in a crowded
street, a boy threw a stone at them and they ran helter-skelter. The plaintiff, constable
on duty, perceiving the danger to the lives of the persons, ran out and stopped the
horses but was seriously injured. It was held: That he was entitled to recover damages,
as the defendant was grossly negligent, and That the defence of volenti non fit injuria
was held not to apply to the rescue cases, the act of a third party also intervening and
the voluntarily undertaking the risk by the plaintiff were not open to the defendant.
3) NO CONSENT – No leave or license can legalize an unlawful act e.g. fighting
with bare fists, a kicking match or a duel with sharp swords.

4) Cases of Negligence- Generally the maxim of volenti non fit injuria doesn’t apply
to cases of negligence. It is a well established rule that this defense is not applicable to
an action where there is a breach of statutory duty otherwise known as statutory
negligence. ( Read- Wagner v. International Railway 1921).

Assignment- Write down the differences between Volenti non fit Injuria and
Contributory negligence.
 ACT OF GOD
VIS MAJOR

• An act or escape caused directly by natural cause without human intervention, and is
so unexpected that no human foresight or skill could reasonably be executed to
anticipate it.
• The occurrence need not be unique, neither does it have to be occurring for the first
time, it is enough that its extraordinary .

{Read From Pg. 25 onwards of the pdf}

NECCESITY- {Pg. 29 onwards of the Pdf provided}

 Plaintiff the Wrongdoer

• If the plaintiff’s own act is determining cause of the harm

suffered by him, he has no cause of action.

• Ex turpi Causa non oritur actio - from an immoral cause no

action arises.

• {Read from Pg.- 32 onwards of the pdf provided}

 Inevitable Accident

• Neither the defendant intended to injure the plaintiff nor

could he avoid the injury by taking reasonable care.

{Read from Pg.- 27 of the pdf provided. }

 Private Defence
• Use of reasonable force to protect one’s person or property.

• Imminent threat to personal safety or property.

{Read from the pdf provided- Pg. 32- 33}