Law of Torts notes (part1) for law students

                         Law Of Torts

 

    Table of Contents-

:Introduction of Torts-

:What is Tort?

:Definition of Tort 

:Objectives of  a Tort

:Essential Element of Tort

:Act and Omission

:Tort and other wrongs

    -Tort and Crime

    - Tort and Breach of Contract 

    - Tort and Breach of Trust

:Damages

:Intention and Motive

:General Defences

:Joint Tortfeasors

:Defamation

 

Introduction of Tort-

  The term of 'tort' is the French  equivalent of the English word 'wrong'. It was introduced in England by the Normans in the late 16 Century . The French word was derived from 'tortum' which, in latin, means conduct which is twisted. A person commiting a tort is known as a 'tort-feasor' and his conduct is 'tortious'. It is a breach of duty which amounts to a civil wrong.

The backbone of Law of Torts are the well known judgements made by various judgements made by various judges in England . Many torts, even still, have no codified statutes that correspond to the landmark judgements. In such cases, the protection is sought under such judgements.

Torts is said to have developed majorly on the basis of the maxims of 'ubi jus ibi remedium' which can be understood as 'there is no wrong without a remedy'. Literally translated, the phrase becomes where there is a right there is a remedy. Tort is based on the principle that every wrong has a remedy. 

 

     Law of Torts in India 

In India, the present law of Torts, or civil wrongs, is almost fully based on the English Law of torts, While the English occupied India, the judiciary applied all changes in English law to Indian cases to Indian cases too. However, even after India became an independent state, the Indian judiciary, has many types, taken judicial note of a law passed in England, or the change in the principle applied.

  

     Law of Tort?

Law of torts is the law which is largely uncodified and judgemade system of law to address the civil injuries that are suffered by persons.

Sections 2(m) of the Limitation Act, 1963,

Addressors tort as being a civil wrong which is not just exclusively a breach of contract or a breach of trust.

 

    Definitions of Tort by famous Jurist

A tort, simply put, is a civil wrong. All torts are civil wrongs, however al civil wrongs are not tort. Over the centuries, various forms of torts were identified and named as such. Negligence, nuisance, tresspass, etc.

According to John Salmond, Tort is a civil wrong for which the remedy shall be unliquidated damages,  and which is NOT the breach of breach of contract. 

According to Richard Dien Winfield, Tortious liability emerges from the breach of a duty primarily fixed by the laws, this duty is towards the other people generally and its breach is redressible by an action for unliquidated damages.

  

    Objectives of  a Tort 

1. To determine rights between the parties to a dispute.

2. To prevent the continuation or repetition of harm i.e. by giving orders of injuction.

3. To protect certain rights of every individuals recognized by law.

4. To restore one's property to its rightful owner i.e. where the property is wrongfully taken away from its rightful owner.

 

    Essential Elements of a Tort

Three essential elements which constitute a tort are,

1. A Wrongful act or omission, and 

2. Duty imposed by the law.

3. The act must give rise to legal or actual damage, and 

  It should be of such a nature that it should  give rise to a legal remedy in the form of an action for damages.

Example:  If a person stumbles, due to a stray pebble, and falls down, scraping his knees, he cannot go to the court for remedy as he has suffered no legal injury. He has suffered a physical injury, However no legal injury.

 In another example- if the same persons slips, due to another person having carelessly thrown a banana peel, he may sue such person. It does not matter, in this case, if the person who slipped only suffered in the form of a small bruise. What matters is that he suffered a legal injury and such legal injury occured due to a breach of duty of another man. Generally, in suits like these, the court award compensation in form of unliquidated damages.

 

   Act and Omission 

In order to prove breach of duty, the court always looks for an act that was in such breach of duty that it caused a legal injury, 'Act' in such context has both positive and negative connotations. An act may cause an injury, it is also equally possible that the failure to act, i.e. an ommision, may cause an injury. 

  Example- Talking on the phone while driving is an illegal act. Neglecting to stop at a red light while driving is an illegal omission.

Generally, in law, omissions are not punishable. For example no one can be made responsible for not stopping a robbery or any crime that is hapening. However, there are certain duties, that are given to persons by the virtues of their positions. In such cases inaction in the manner of omission is punishable.

  Example- A citizen called to give witness by any court or judge cannot omit to give his witness nor can he omit to give any documents if he has been asked to produce them. Similarly, a director of any company cannot omit to act when he finds that his company is in violation of corporate regulations.

Following are the two maxims which are required to check the validity of claim in accordance with the law of tort. In simple terms these parameters can determine the feasibility of the case to be taken to the court for justices:

i. Injuria sine Damno     ( injury without damages)

ii. Damnum sine injuria ( damage without injury)

  

Injuria sine Damno-

The above phrases means violation of a legal right without causing any harm, loss or damages to the plaintiff. In such case there is no need to prove that as a result of an act, the plaintiff has suffered actual harm. The only thing that has to be proved is that the plaintiff's legal right has been violated; i.e. there has been 'injuria'.

An example of this can be the landmark case of,  

Ashby v. White(1703) 92 ER 126, where Mr. Ashby, the Plaintiff , was prevented from voting by the constable Mr. White. This rule is basically based on the old maxim " Ubi jus ibi remedium' which translate to "where there is a right, there will be remedy."

 

 Damnum sine Injuria -

The above phrase means that the damage is caused without violation of any right. This type of claim is void. Irrespective of the injury suffered, there can be no remedy unless there has been an  'injuria' or violation of a legal right. This usually happens when the exercise of legal right by one results in consequential harm to the other. 

 An example famous case.

Gloucester grammar School case, In this case school owned by the plaintiff. The defendant was a teacher of this school. Due to some internal conflicts, the defendant left Gloucester and set up his school in the same area . A lot of students left the plaintiff's school and joined the new school due to the easy and direct teaching of the defendant. This led to a financial loss to the plaintiff and he filed a case against the defendant by claiming compensation for the loss caused due to the new school set by the the defendant in the same area.

 

      Intention and Motive 

 Intentional Tort 

Intentional tort is one in which the tort is committed with full knowledge of the outcome of the act along with the mental intention to cause such a tort. Having mala fide intention is necessary to commit an Intentional Tort.

Intentional torts are –

• Battery.
• Assault.
• False imprisonment.
• Trespass to land, etc.     
  

  Unintentional Tort-

Unintentional torts are caused usually by accident or by mistake by the defendant to the plaintiff without any mala fide (Evil or Wrongful) intention towards doing such an act. These are usually committed on the breach of duty of care which a reasonable human being would’ve considered under normal circumstances. Negligence (failure to take proper care over something) is a great example of this kind of tort.

The most common example of Negligence as a civil wrong can be the negligence tort cases of slip and fall which can occur when the owner of a premises fails to take reasonable care to the floor of his property thus leaving water on the floor carelessly which in turn results in harming the individuals whoever enters his premises. Here, the owner of the premises did not intent to harm the visitors at all but due to his carelessness, such an outcome came to be.

 

 Relevance of Intention and Motive 

Generally, the motive is the state of mind with intent or a purpose in the mind of an individual while being in the commission of an act. While on one hand, the motive is the ultimate object for which an act is done, the intention refers to the immediate purpose of the act. Now the question arises whether these mental elements play a significant role in the determination of tortious liability or not? In criminal law the concept of mental element plays a significant role in determining the role of a person’s liability but in case of  law of tort, mental element does not usually play a significant role, as there are some torts that can be committed without having the intention to do them and the person who still ends up committing these offences still end up being responsible for them, such as in the case of negligence, while on the other hand mental element is necessary in order to prove a person’s liability in the case of Battery, Assault, etc.

 

Joint Tortfeasors and Laws in India

Introduction

When two or more persons unite to cause damage to another person, then they will be liable as joint tortfeasors. All those who actively participate in the civil wrong commission are joint tortfeasors. Based on the percentage of damage caused by his negligent act, each joint tortfeasor is responsible for paying a portion of the compensation granted to the complainant. According to the principle of contribution, the defendant who pays more than his share of the damages, or who pay more than he is at fault, may bring an action to recover from the other defendant.

Illustration

The claimant has the right to recover the damages from both the defendants, if X and Y are found to be at fault.

Liability of Independent Tortfeasor

They are severally liable for the same damage due to an independent course of action. In Thompson v. London County Council, it was observed that “the damage is one but the cause of action which led to the damage are two”. Such tortfeasors are, therefore, severally liable for the same damage, not jointly liable for the same tort.

Liability of Several Concurrent Tortfeasors

When the same injury is caused to another person by two or more person as a result of their separate tortious acts, this results in several concurrent tortfeasors. Even where successive injuries are caused, the parties remain multiple, concurrent tortfeasors as long as the negligence of each is both a factual and proximate cause of each injury.

Liability of Joint Tortfeasors

When two or more persons join together for common action, then all the persons are jointly and severally liable for any tort committed in the course of such action. There were three principles in English Common Law with regard to the liability of joint tortfeasors.

• The first principle is that the liability of wrongdoers is joint and several i.e. each is liable for the whole damage. The injured may sue them jointly or separately.
• The second principle was laid down in the case of
•  Brinsmead  v  Harrison, where it was held that a judgment obtained against one joint wrongdoer released all the others even though it was not satisfied.
• The third rule was laid in the case of Merryweather v Nixon, where it was held that in common law, no action for contribution could be sustained by one wrongdoer against another, although one who sought a contribution might have been compelled to pay the full damages. The reason alleged for this rule was that any such claim to the contribution must be based on an implied contract between the tort-feasors and that such a contract was illegally concluded with a view to committing an illegal act.     

           

When does the liability of joint tortfeasors arise?

Liability of joint tortfeasors arises in three circumstances and they are:

Agency

When one person is authorized by another person to do work on his behalf then any tort committed by that person, the agent then principal who is authorizing the work will jointly and independently be held liable. When a tort is committed by an agency then both principal and agent are considered as joint tortfeasors. When any partner commits tort during the course of the business, then all other partners are also considered as joint tortfeasors.

Vicarious Liability

When a person is liable for the tort committed by another person under special circumstances, the liability is joint and both are joint-tortfeasors. Thus, when a servant commits a tort in the course of employment, the master can be made liable along with the servant as a joint-tortfeasors.

 

General defences under law of torts

Introduction

Whenever a case is brought against the defendant for the commission of a tort and all the essential elements of that wrong are present, the defendant would be held liable for the same. Even in such cases, the defendant can avoid his liability by taking the plea of the defenses available under the law of torts. 

Some defences are particularly relating to some offences. In the case of defamation, the defences available are fair comment, privileges and justification, etc.

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

Meaning of General Defences 

When a plaintiff brings an action against the defendant for a tort committed by him, he will be held liable for it, if there exists all the essential ingredients which are required for that wrong. But there are some defences available to him using which he can absolve himself from the liability arising out of the wrong committed. These are known as ‘General defences’ in the law of tort. 

The defences available are given as follows:

• Volenti non fit injuria or the defense of ‘Consent’

• The wrongdoer is the plaintiff
• Inevitable accident
• Act of god
• Private defense
• Mistake
• Necessity
• Statutory authority

Volenti non fit injuria

In case, a plaintiff voluntarily suffers some harm, he has no remedy for that under the law of tort and he is not allowed to complain about the same. The reason behind this defence is that no one can enforce a right that he has voluntarily abandoned or waived. Consent to suffer harm can be express or implied. 

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

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

 

Plaintiff the wrongdoer

There is a maxim “Ex turpi causa non oritur actio” which says that “from an immoral cause, no action arises”. 

If the basis of the action by the plaintiff is an unlawful contract then he will not succeed in his actions and he cannot recover damages.

If a defendant asserts that the claimant himself is the wrongdoer and is not entitled to the damages, then it does not mean that the court will declare him free from the liability but he will not be liable under this head.

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

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

 

Inevitable accident

Accident means an unexpected injury and if the same accident could not have been stopped or avoided in spite of taking all due care and precautions on the part of the defendant, then we call it an inevitable accident. It serves as a good defence as the defendant could show that the injury could not be stopped even after taking all the precautions and there was no intent to harm the plaintiff.

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

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

 

Act of God

Act of God serves as a good defence under the law of torts. It is also recognized as a valid defence in the rule of ‘Strict Liability’ in the case of Rylands v. Fletcher.

The defence of Act of God and Inevitable accident might look the same but they are different. Act of God is a kind of inevitable accident in which the natural forces play their role and causes damage. For example, heavy rainfall, storms, tides, etc. 

Essentials required for this defence are:

• Natural forces’ working should be there.
• There must be an extraordinary occurrence and not the one which could be anticipated and guarded against reasonably.  

      

  Private defence

The law has given permission to protect one’s life and property and for that, it has allowed the use of reasonable force to protect himself and his property. 

• The use of force is justified only for the purpose of self-defence. 
• There should be an imminent threat to a person’s life or property.

For example, A would not be justified in using force against B just because he believes that some day he will be attacked by B. 

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

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

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

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

 

Mistake

The mistake is of two types:

• Mistake of law
• Mistake of fact

In both conditions, no defence is available to the defendant. 

When a defendant acts under a mistaken belief in some situations then he may use the defence of mistake to avoid his liability under the law of torts. 

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

 

Necessity

If an act is done to prevent greater harm, even though the act was done intentionally, is not actionable and serves as a good defence.

It should be distinguished with private defence and an inevitable accident.

The following points should be considered:

• In necessity, the infliction of harm is upon an innocent whereas in case of private defence the plaintiff is himself a wrongdoer.
• In necessity, the harm is done intentionally whereas in case of an inevitable accident the harm is caused in spite of making all the efforts to avoid it.
  

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

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

 

Statutory authority

If an act is authorized by any act or statute, then it is not actionable even if it would constitute a tort otherwise. It is a complete defence and the injured party has no remedy except for claiming compensation as may have been provided by the statute.

Immunity under statutory authority is not given only for the harm which is obvious but also for the harm which is incidental. 

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

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

 

Damages for nervous or mental shock

Nervous shock

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

Mental shock

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

 

 

    What is Defamation?

Introduction

Defamation as the meaning of the word suggests is an injury to the reputation of a person resulting from a statement which is false. A man’s reputation is treated as his property and if any person poses damage to property he is liable under the law, similarly, a person injuring the reputation of a person is also liable under the law. Defamation is defined in section 499 of Indian Penal Code 1860 and section 500 provides that a person committing an offense under this section is liable with simple imprisonment for a term of 2 years or fine or with both. 

Essentials of Defamation

A. The statement must be defamatory

The very first essential of the offense of defamation is that the statement must be defamatory i.e. which tends to lower the reputation of the plaintiff. The test to check if a particular statement is defamatory or not will depend upon how the right thinking members of society are likely to take it. Further, a person cannot take a defense that the statement was not intended to be defamatory, although it caused a feeling of hatred, contempt or dislike.

In the Case of Ram Jethmalani v. Subramanian Swamy court held Dr. Swamy to be liable for defaming Mr. Jethmalani by saying that he received money from a banned organization to protect the then CM of Tamil Nadu in the case of the assassination of Rajiv Gandhi. In another recent case of Arun Jaitley v Arvind Kejriwal, the court held the statement said by Arvind Kejriwal and his 5 other leaders to be defamatory. However, the matter was finally disclosed after all the defendants apologized for their actions.

Illustration

A publishes an advertisement in a local newspaper stating false information that the company of B has committed fraud of Rs 20,00,000. Now, this statement will amount to defamation as this newspaper will be read by many readers and will surely injure the reputation of B’s company.

However, it is to be noted that mere hasty expression spoken in anger, or vulgar abuse to which no hearer would attribute any set purpose to injure the character would not amount to defaming a person.

B. The statement must refer to the plaintiff

In an action for defamation, the plaintiff has to prove that the statement of which he Complains referred to him, it will be immaterial that the defendant did not intend to defame the plaintiff. If the person to whom the statement was published could reasonably infer that the statement referred to him, the defendant will then be liable.

In the case of T.V., Ramasubha Iyer v. A.M.A Mohindeen Court held the defendants liable for publishing a statement without any intention to defame the defendants. The statement mentioned that a particular person carrying business of Agarbathis to Ceylon has been arrested for the offense of smuggling. The plaintiff was also one of the person carrying on a similar business, and as a result of this statement his reputation also severely damaged.

 C. The statement must be published

Publication of defamatory statement to some person other than the person defamed is a most important aspect for making any person liable, and unless that is done, no action for defamation will lie.

However, if a third person wrongfully reads a letter meant for the plaintiff, then the defendant likely to be liable. But if the defamatory letter sent to the plaintiff is likely to be read by somebody else, there will be a valid publication.

In the case of Mahendra Ram v. Harnandan prasad the defendant was held liable for sending a defamatory letter to plaintiff written in Urdu knowing that the plaintiff did not knew Urdu and the letter will very likely be read over by another person.

Forms of Defamation

1.  Slander– It is the publication of a defamatory statement in a transient form. For example- Defaming a person by way of words or gestures.
2.  Libel– It is the representation made in some permanent form.

For example- Defaming a person through a representation made in some permanent form like writing, printing etc.

Indian law on Libel and Slander

Unlike English law, Indian law does not make any distinction between libel and slander and both are treated as criminal offenses under section 499 IPC. In the case of Hirabai Jehangir v. Dinshawdulji the Bombay and Madras high court both held that no distinction needs to be made between treating libel and slander as criminal offenses.

 

Defenses to defamation

The defenses to an action for defamation are

1. Justification of truth
2. Fair comment
3. Privilege
   

 

Justification of truth

In a civil action for defamation, the truth of the defamatory matter is a complete defense and the reason for this is that “ Law will not permit a man to recover damages for something being true about him “.

Fair comment

Making a fair comment on matters public interest is a valid defense to an action for defamation. For this, the following must be proved

• It must be a comment i.e, an expression of opinion rather than an assertion of fact
• The comment must be fair

The comment should be fair i.e. should not be based upon untrue facts.

 

Privilege

As the word suggests itself i.e. giving special status. These special occasions when the law recognizes that the right of free speech outweighs the plaintiffs right to defamation and a defamatory statement made on such occasion is not actionable. Privileges are of two types.

1. Absolute privileges–  In matters of these complete immunity is given to person speaking and no action for defamation can lie against him. It includes 3 aspects

• Parliamentary proceedings– Article 105(2) of the Indian constitution gives immunity to parliamentarians to speak anything during the course of business of parliament and no action would lie against them.
• Judicial proceedings– This protection has been given to judges under judicial officers protection act of 1850. It also extends to counsels, witnesses, and parties to a suit.

2. Qualified privilege– This privilege is also available and under this, it is necessary that the statement must have been made without a malice i.e a wrongful intention.
   

 

 

 

 

 

 

 

 

This article is written by Sachin Bansiwal, student of National Law College.