Torts
Torts
Torts
Tort derived from the Latin word tortum, which means to twist. It includes that
conduct which is not straight or lawful. It is equivalent to the English term wrong.
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 trust or other
merely equitable obligation.
We may define tort as a civil wrong which is redressible by an action for unliquidated
damages and which is other than a mere branch of contract or breach of trust.
Crime
i) Less serious wrongs are considered as i) More serious wrongs have been considered
private wrongs and have been labelled as to be public wrongs and are known as crimes.
civil wrong.
ii) The suit is filed by the injured person ii) The case is brought by the state.
himself.
iii) Compromise is always possible.
iv) the wrongdoers pays compensation to the iv) The wrongdoer is punished.
injured party.
Tort
i) It results from breach of a duty undertaken i) It occurs from the breach of such duties
by the parties themselves.
which are not undertaken by the parties but
which are imposed by law.
ii) In contract, each party owes duty to the ii) Duties imposed by law of torts are not
other.
towards any specific individual but towards
the world at large.
iii) Damage of contract is liquidated.
Breach of Trust
iii) Tort is partly related to the law of iii) Trust is a branch of law of property.
property.
the race, there was a collision between two cars, one of which was thrown among
the spectators, thereby injuring the plaintiff. It was held that the plaintiff impliedly took
the risk of such injury, the danger being inherent in the sport which any spectator
could foresee, the defendant was not liable.
Padmavati v. Dugganaika- While the driver was taking the jeep for filling petrol in
the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right
front wheel to the axle gave way toppling the jeep. The two strangers were thrown
out and sustained injuries, and one of them died as a consequence of the same.
It was held that neither the driver nor his master could be made liable, first, because
it was a case of sheer accident and, secondly, the strangers had voluntarily got into
the jeep and as such, the principle of volenti non fit injuria was applicable to this
case.
Ex turpi causa non oritur actio No action arises from a wrongful consideration.
Hardy v. Motor Insurers Bureau- This was a case where a security officer was
dragged along when he tried to stop a car. Lord Denning MR said: no person can
claim reparation or indemnity for the consequences of a criminal offence where his
own wicked and deliberate intent is an essential ingredient in it It is based on the
broad rule of public policy that no person can claim indemnity or reparation for his
own wilful and culpable crime. He is under a disability precluding him from imposing
a claim.
Revill v. Newberry- An elderly allotment holder was sleeping in his shed with a
shotgun, to deter burglars. On hearing the plaintiff trying to break in, he shot his gun
through a hole in the shed, injuring the plaintiff. At first instance, the defendant
successfully raised the defence of ex turpi to avoid the claim.
Damnum sine injuria Damage without wrongful act; damage or injury inflicted
without any act of injustice; loss or harm for which there is no legal remedy. It is also
termed damnum absque injuria.
There are cases in which the law will suffer a man knowingly and wilfully to inflict
harm upon another, and will not hold him accountable for it.
Action v. Blundell The defendants by digging a coal pit intercepted the water
which affected the plaintiffs well, less than 20 years old, at a distance of about one
mile. Held, they were not liable. It was observed: The person who owns the surface,
may dig therein and apply all that is there found to his own purposes, at his free will
and pleasure, and that if in the exercise of such rights, he intercepts or drains off the
water collected from underground springs in the neighbours well, this inconvenience
to his neighbour falls within description damnum abseque injuria which cannot
become the ground of action.
Injuria sine damno- This maxim means injury without damage. Wherever there is
an invasion of a legal right, the person in whom the right is vested is entitled to bring
an action and may be awarded damages although he has suffered no actual
damage. Thus, the act of trespassing upon anothers land is actionable even though
it has done the plaintiff not the slightest harm.
Ashby v. White
Bhim Singh v. State of J & K The petitioner, an MLA, of J & K Assembly, was
wrongfully detained by the police while he was going to attend the Assembly session.
He was not produced before the Magistrate within the requisite period. As a
consequence of this, the member wad deprived of his constitutional right to attend
the Assembly session. There was also violation of fundamental right guaranteed
under the Constitution. By the time the petition was decided by the Supreme Court,
Bhim Singh had been released, but by way of consequential relief, exemplary
damages amounting to 50,000 were awarded to him.
More
Terminologies
Malice- A condition of mind which prompts a person to do a wrongful act wilfully, that
is, on purpose, to the injury of another, or to do intentionally a wrongful act toward
another without justification or excuse.
In its legal sense it means a wrongful act done intentionally without just cause or
excuse.
Malice is a wish to injure a party, rather than to vindicate the law. Malice of two types:
i) Malice in fact
ii) Malice in law
Malice in fact Means an actual malicious intention on the part of the person who
has done the wrongful act. It is also called express or actual malice.
Malice in law It is not necessarily personal hate or ill will, but it is that state of mind
which is reckless of law and of the legal rights of the citizen.
Intention A settled direction of the mind towards the doing of a certain act; that
upon which the mind is set or which it wishes to express or achieve; the willingness
to bring about something planned or foreseen.
Injury- In legal parlance, injury means any wrong or damage done to another, either
in his person, rights, reputation or property.
Meaning under Penal Code, 1860 (section 44) the word injury denotes any harm
whatever illegally caused to any person, in body, mind, reputation or property.
Hurt Whoever causes bodily pain, disease or infirmity to any person is said to
cause hurt.
Malfeasance it is a wrongful act which the actor has no legal right to do, or any
wrongful conduct which affects, interrupts, or interferes with performance of official
duty, or an act for which there is no authority or warrant of law or which a person
ought not to do at all, or has contracted not, to do.
The word malfeasance would apply to a case where an act prohibited by law is
done by a person. (Khairul Bahsar v. Thana Lal AIR 1957)
Remedies
Types of damages a)
b)
c)
Nominal damages They are awarded for the vindication of a right where no
real loss or injury can be proved.
d)
Contemptuous damages -
Self defence The use of force to protect oneself, ones family, or ones
property from a real or threatened attack.
Expulsion of trespassers Forcibly evicting the trespasser.
vi) Distress damage feasant the right to seize animals or inanimate chattels that
are damaging or encumbering land and to keep them as security until the owner
pays compensation.
Every person can sue in case of tort including the minor with the consent of his
guardian or the court.
The following persons cannot suei)
ii)
iii) Foreign state A foreign state cannot sue unless it is recognized by the
Government.
vi) Bankrupt The guiding law in this regard is the Bankruptcy Act, 1997. If a
person is declared insolvent, his properties are taken over and a receiver is
appointed as the supervisor of that property. A bankrupt cannot sue as long as
civil wrongs are concerned.
v)
Felons/Convicts Felon is a person who has been proven guilty and declared
with punishment but fled away. Convict is a person who has been proven guilty
but has not fled away.
A felon cannot file a suit. But a convict can file a suit.
ii)
vi) Infant / Minor According to the Penal Code, a minor is a child of 9 12 years.
But age of the minor varies in various Statues.
vii) Unsound mind There are various Act for lunatics and unsound minds, e.g. the
Lunacy Act, 1912.
Negligence
that the manufacturer owed her a duty to take care that the bottle did not contain any
noxious matter, and that he would be liable on the breach of the duty.
Palsgraaf v. Long Island Railroad Co. The plaintiff with a package was trying to
board a moving train. Two servants of the defendant came to help her. One of them
pushed her from the back. At this moment the package fell on the rail track. The
package contained fireworks and it exploded. The plaintiff was injured. She sued the
defendants alleging negligence on the part of their servants. It was held that she
could not recover. Cardozo CJ said, the conduct of the defendants servant was not
wrong. Relatively to her it was not negligence at all.
Duty depends on reasonable foreseeability of injury
If at the time of omission, the defendant could reasonably foresee injury to the
plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable.
No liability when injury is not foreseeable
Glasgow Corp. v. Muir The manageress of the defendant Corporation tea-rooms
permitted a picnic party. Two members of the picnic party were carrying a urn of tea
through a passage. There were some children buying sweets and ice-cream.
Suddenly, one of the persons lost his grip and the children including Eleanor Muir
were injured. It was held that the manageress could not anticipate that such an event
would happen as a consequence of tea urn being carried through the passage, and,
therefore, she had no duty to take precautions against the occurrence of such an
event.
Reasonable foreseeability does not mean remote possibility
Bolton v. Stone A batsman hit a ball and the ball went over a fence and injured a
person on the adjoining highway. This ground had been used for about 90 years and
during the last 30 years, the ball had been hit in the highway on about six occasions
but no one had been injured. The Court of Appeal held that the defendants were
liable for negligence. But the House of Lords held that the defendants were not liable
on the basis of negligence.
Duty of care Booker v. Wenborn (1962) - The defendant boarded a train which
had just started moving but kept the door of the carriage open. The door opened
outside, and created a danger to those standing on the platform. The plaintiff, a
porter, who was standing on the edge of the platform was hit by the door and injured.
It was held that the defendant was liable because a person boarding a moving train
owed a duty of care to a person standing near it on the platform.
ii) Breach of duty Breach of duty means non-observance of due care which is
required in a particular situation. The law requires taking of two points into
consideration to determine the standard of care required: (a) the importance of the
object to be attained, (b) the magnitude of the risk, and (c) the amount of
consideration for which services, etc. are offered.
(a) The importance of the object to be attained
K. Nagireddi v. Government of Andhra Pradesh Due to construction of a canal
by the state government, all the trees of the plaintiffs orchard died. The plaintiff
alleged that the government due to negligence did not cement the floor. It was held
that the construction of canal was of great importance and to not cementing the floor
was not negligence from the state government.
(b) The magnitude of risk
Kerala State Electricity Board v. Suresh Kumar A minor boy came in contact
with overhead electric wire which had sagged to 3 feet above the ground, got
electrocuted thereby and received burn injuries. The Electricity Board had a duty to
keep the overhead wire 15 feet above the ground. The Board was held liable for the
breach of its statutory duty.
(c) The amount of consideration for which services, etc. are ofered
Klaus Mittelbachert v. East India Hotels Ltd. the question of liability of a five star
hotel arose to a visitor, who got seriously injured when he took a dive in the
swimming pool. It was observed that there is no difference between a five star hotel
owner and insurer so far as the safety of the guests is concerned. It was also
observed, a five star hotel charging high from its guests owes a high degree of care
as regards quality and safety of its structure and services it offers and makes
available.
iii) The plaintif sufered damage It is also necessary that the defendants breach
of duty must cause damage to the plaintiff. The plaintiff has also to show that the
damage thus caused is not too remote a consequence of the defendants negligence.
Res ipsa loquitur- It means the things itself speaks. When the accident explains
only one thing and that is that the accident could not ordinarily occur unless the
defendant had been negligent, the law raises a presumption of negligence on the
part of the defendant.
Hambrook v. Stokes Bors. Soon after parted with her children in a narrow street,
a lady saw a lorry violently running down the narrow street. When told by some
bystander that a child answering the description of one of her children had been
injured, she suffered a nervous shock which resulted in her death. The defendant
was held liable.
Dickson v. Reuter
Contributory negligence
When the plaintiff by his own want of care contributes to the damage caused by the
negligence or wrongful conduct of the defendant, he is considered to be guilty of
contributory negligence. This is a defence in which the defendant has to prove that
the plaintiff failed to take reasonable care of his own safety and that was a
contributing factor to harm.
Rural Transport Service v. Bezlum Bibi (1980) The conductor of an overcrowded
bus invited passengers to travel on the roof of the bus. The driver ignored the fact
that there were passengers on the roof and tried to overtake a cart. As a result, a
passenger was hit by a branch of tree, fell down, received injury and died. It was held
that both the driver and the conductor were negligent towards the passengers, there
was also contributory negligence on the part of the passengers including the
deceased, who took the risk of travelling on the roof of the bus.
Yoginder Paul Chowdhury v. Durgadas (1972) The Delhi High Court has held
that a pedestrian who tries to cross a road all of a sudden and is hit by a moving
vehicle, is guilty of contributory negligence.
save his person or property, he may take an alternative risk. If in doing so, the
plaintiff suffered any damage, he will be entitled to recover from the defendant.
Jones v. Boyce (1816) The plaintiff was a passenger of defendants coach. The
coach was driven so negligently that the plaintiff jumped off the bus fearing an
accident and broke his leg. It was held that the plaintiff would be entitled to recover.
Shayam Sunder v. State of Rajasthan (1974) Due to the negligence on the part
of the defendants, a truck belonging to them caught fire. One of the occupants,
Navneetlal, jumped out to save himself from the fire, be struck against a stone lying
by the roadside and died. The defendants were held liable.